A CONCISE TREATISE ON THE LAW OF WILLS BY WILLIAM HERBERT PAGE ^Of the Columbus, Ohio, Bar, Professor of Law in the Ohio State University. ; CINCINNATI, O. W. H. ANDERSON & CO, Law Book Publishers. 1 90 1. 1901 COPYRIGHT. W. H. ANDERSON & CO. T \90\ To my friend and former instructor, WIIvIvIAM FORREST HUNTER, Dian oj the College of Laiu of the Ohio State University, THIS VOLUME IS DEDICATED. 6708-^0 PREFACE. The object of this volume is to set forth, in a form which is easy of comprehension for the student, and with a scope and thoroughness of statement which it is hoped will make it of value to the practicing lawyer, the law of wills, as applied by Federal and State C^ourts in the United States. English cases have not been ignored ; subjects which are collateral to the law of wills, but necessary to its complete understanding, have been treated so as to present the subject completely and fully; the older leading cases upon the subject have been cited; but the greatest space and attention has been given to the law of wills proper, and to an exhaustive consideration of the recent adjudi- cations upon that subject in the United States. The law of probate and contest is discussed in connection with the law of wills, contrary to the usual custom. Questions both of substantive law and of evidence are so involved with questions of probate and contest that a complete though elemen- tary statement of the latter subjects finally appeared to be the method of treating the subject most economical in time and space. The law of devises and legacies is so essential to an under- standing of the diiferent methods of deducing and enforcing the intention of testator in states of fact different from those originally contemplated by him, that its presence in a text-book upon wills is not so unusual a feature as to call for comment. iv PREFACE. The history of the law of wills is so essential to an appre- ciation of the present value and application of the older author- ities, and to a clear understanding of the present state of the law, that an outline of the general development of the law and the particular stages in the evolution of the separate topics has proved necessary. In wills, more than in almost any other sub- ject, development has been hastened or modified by legislation; as a result, the essential continuity of its evolution is less ap- parent and needs sharper emphasis. In arrangement of topics, questions of evidence have been treated separately from questions of substantive law. Greater clearness in statement is thus obtained without sacrifice of space. The statement of the law of wills in the space of one volume has necessitated compression of language and treatment, but it is hoped that tliis has not prevented that clearness of state- ment which is indispensable to any law book of value to student or practitioner. William Herbert Page. Columbus, Oliiu, Fehruai-y, 1901. CONTENTS. CHAPTER I. INTRODUCTION. PAGE. §1. The place of the will at modern law 1 §2. Defi-nitions 2 CHAPTER n. HISTORY OF THE LAW OF WILLS AND TESTAMENTS. §3. Wills in primitive nations.. 4 §4. Effect of development of property rights upon the law of wills. . . 4 §5. Causes of the growing importance of the will. — Examples 5 §6. Use of the word "will" in Greek and Roman law 6 §7. Effect of Roman law of wills on the English law 6 §8. English will in pre-Norman period 7 §9. Divergence of history of will and testament under feudalism. ... 8 §10. The will at common law abolished by feudalism 9 §11. Attempt to revive wills under statute De Donis 11 §12. Exceptions to common law rule 11 §13. Wills in equity 11 §14. The Statute of Uses 12 §15. The Statute of Wills 12 §16. Abolition of feudal tenures 14 1^17. Testaments in pre-Norman times 15 §18 Doctrine of reasonable parts 15 §19. Power of testator to dispose of his entire personal property. . 16 §20. History of the law of wills and testaments in the United States. 16 CHAPTER in. NATURE AND EXTENT OF TESTAMENTARY POWER. §21. General extent of legislative control before testator's death 18 §22. General extent of legislative control after testator's death 20 §23. Power of testator to exclude his wife and children from a share in his estate. — General rule 21 viii CONTENTS. PAGE. §24. Exclusion of wife and children in favor of mistress or illegitimate children 22 §25. Exclusion of wife and children in favor of charities 22 §26. Perpetuities 25 CHAPTER lY. THE LAW BY WHICH A WILL IS GOVERNED. §27. General principles controlling conflict 26 §28. General rule as to realty 26 §29. Law controlling in construction of will 28 §30. Statutory rule as to law controlling 29 §31. General rule as to personalty 29 §32. Effect of change of domicile 31 §33. Distinction between realty and personalty 31 §34. Law controlling in, conversion 31 §35. Law controlling in trusts 32 §36. Law controlling as to capacity of beneficiary to take 33 §37. Law controlling as to lapse 34 §38. Law controlling as to election 35 §39. Law controlling as to powers 35 §40. Law controlling contracts to make a will 35 §41. Rule in absence of evidence as to what law of domicile is 35 CnAPTER Y. THE INHERENT ELEMENTS OF A WILL. §42. Classification of elements into inherent and extrinsic 36 §43. Origin and classes of inherent elements 37 §44. Animus testandi not dependent on use of word "will." 38 §45. Animus testandi. — What wishes are testamentary 39 §46. Animus testandi. — What disposition is not testamentary 40 §47. Animus testandi. — Realty of intention 41 §48. Animus testandi. — Expression of intention in definite terms 44 §49. Animus testandi. — Intention that instrument shall take eflfect only at death of testator 45 §50. Revocability 48 §51. Instruments lacking some inliorent elements 49 §52. Confusion between deeds and wills. — Instruments held deeds.... 49 853. Confusion between deeds and wil's. — Instruments held wills.... 51 §54. Confusion between wills and contracts. — Instruments held con- tracts 55 §55. Confusion between wills and contracts. — Instruments held wills. 56 §56. Confusion between wills and orders 57 CONTENTS. ^^ PAGE. 59 §57. Will in form of power of attorney 59 §58. Informal wills g2 §59. Precatory words .■■■",", 64 §60. Contingent wills.-What wills are mcruded ■.■.■.■.".■ 64 §61. Validity of contingent wills 66 Examples of contingent wills ^^ Examples or wills held not contingent ^^ Contingency applying to only part of will §62. §63. §64. CHAPTER VI. JOINT AND MUTUAL WILLS. 69 865 Wills not included under this chapter. ••••■•; §66. Wills included under this chapter.-Classification • • • ^^ §67. Validity of joint and mutual wills ,....14: §68 When admissible to probate ^^ §69. Revocability of joint and mutual wills CHAPTER YII. THE CONTRACT TO MAKE A WILL. §70. Validity of contracts to bequeath or devise and revocability of ^^ wills made thereunder §71. Necessity of all the elements of a valid contract. . . . . . • • • • • • • • • ^^ §72. Consideration g3 §73. Certainty ... 85 §74. The Statute of Frauds g^ §75. Part performance gg §76. What is a breach of such contract ^^ ^77 Construction and performance ^^ §78. Remedies for breach of contract at law j^^ §79. Remedy for breach of contract m equity '.'.]'.'.'.'.'.'. 95 §80. Election of remedies 95 §81. Evidence •" 97 §82. Parties , . x <)7 §83. Time at which statute of limitations begins to run CHAPTER VHI. CAPACITY TO MAKE A WILL. §84. History of the law of testamentary capacity 98 §85. Time at which capacity must exist ^ '.'!'.'.. 99 §86. Outlawry and attainder X CONTENTS. PAGE. §87. Alienage 100 §88. Nonage 100 §89. Coverture at common law. — Testaments 101 §90. Coverture at common law. — Wills 103 §91. Capacity of married woman under powers 104 §92. Capacity of married woman in equity 105 §93. Capacity of married woman under modern statutes 106 §94. Lack of mental capacity. — Is perfect sanity a requisite of testa- mentary capacity ? 108 '§95. Is criminal responsibility a test of testamentary cajmcity?. . . .110 §96. Is contractual capacity a test of testamentary capacity? Ill §97. Test of testamentary capacity now adopted 114 §98. Degree of memory requisite. — Effect of size of estate 117 §99. Classes of those mentally incapacited. — General discussion. .. .118 §100. Idiocy 119 §101. Imbecility 120 §102. Senile dementia.— Old age 121 §103. Insanity 122 §104. Insane delusion. — Definition 123 §105. Analysis of insane delusion. — Mistake of fact 125 §106. Analysis of insane delusion. — Mistake not based upon evidence.. 127 §107. Analysis of insane delusion. — Mistake not removable by evidence.128 §108. Effect of insane delusion on testamentary capacity 128 §109. Lucid interval 130 §110. Eccentricity 132 §111. Spiritualism 133 §112. Drunkenness and the efi'ect of drugs 134 §113. Delirium 135 §114. Delirium tremens 136 §115. Persons under guardianship 136 §116. Disease, great weakness, and approaching death 137 §117. The deaf, dumb and blind 138 CHAPTER IX. MISTAKE, FRAUD, UNDUE INFLUENCE AND DURESS. §118. Classes of mistake 140 §119. Mistake in execution 140 §120. Mistake in inducement 141 §121. Mistake.— Statutory rule 142, §122. Fraud. — General discussion and classification 143 §123. Fraud in execution 143 §124. Fraud in inducement 144 §125. Undue influence. — Definition 145 §126. Theory of undue influence 145 §127. Elements of undue influence 147 §128. Classes and forms of undue influence 149 CONTENTS. xi PAGE. §129. Who may exert undue influence 151 §130. Time at which undue influence may exist 151 §131. Efi"ect of undue influence 152 §132. Injustice of will not undue influence 152 §133. Duress 15* CHAPTER X. WHAT CAN BE DISPOSED OF BY WILL. §134. Property in general 156 §135. Ownership of property disposed of by will 156 §136. Insurance policies 15' §137. Dower, curtesy, and distributive share of personalty 158 §138. Homestead rights 1^9 §139. Community property 161 §140. Non-surviving interests 161 §141. After-acquired personalty 162 § 142. After-acquired realty 163 §143. Classes of property devisable. — ^Realty in general 164 §144. Effect of disseisin 164 §145. Estates in futuro 165 §146. Possibilities 1^^ §147. Rights of entry devisable 166 §148. Equitable interests 168 §149. Rights of creditors 169 CHAPTER XI. WHO CAN TAKE UNDER A WILL AND TESTAMENT. §150. Aliens. — Common law rule 170 §151. Aliens. — Modern statutory rule 171 §152. Private corporations. — General rule 172 §153. Private corporations. — Special statutory and constitutional ■ • 1 7*? provisions '^"^ §154. Public corporations 17* §155. Convicts • 17* §156. Illegitimate children 175 CHAPTER XH. EXTRINSIC ELEMENTS OF A WRITTEN WILL OF THE ORDINARY TYPE. PAKT I — INTRODUCTION. !l57. History of the Law of the Extrinsic Elements of Wills 178 ?158. General scope of modern statutes 180 xii CONTENTS. PART II WRITING. PAGE. §159. Writing materials which can be used 181 §160. Language in which the will may be written 182 §1G1. Writing on several pieces of paper 182 §162. Incorporation of documents 183 §163. Incorporation of documents. — Reference to document 185 §164. Incorporation by the use of asterisks ■ 185 §165. Actual existence of document at time of execution of will.... 187 §166. Identification of document to be incorporated 187 §167. Effect of incorporation of document in will 189 §168. Reference to verbal instructions 190 §169. Document used to identify beneficiary 190 PART III SIGNATURE OF TESTATOR. §170. Necessity of seal 190 §171. Methods of signing 191 §r<2. Signature by name 191 §173. Signature by mark 191 §174. Signature by other person 194 §175. Presence of testator . 195 §176. Express direction of testator 195 §177. Who can sign for testator 196 §178. Form of signing for testator - 196 §179. Name of testator added by other to his mark 197 §180. Guiding the hand of testator as signature by testator 198 §181. Place of signature upon will. — Early statutes 199 §182. Place of signature upon will. — Modern statutes 201 §183. Signature with reference to attestation clause 201 §184. Effect of blanks in body of the will 202 §185. Effect of blank immediately before signature 202 §186. Additions after signatMre 203 §187. Signature opposite the end or foot of the will 207 PART IV. ATTESTATION AND SUBSCRIPTION. §188. Attestation and subscription entirely statutory 207 §189. Distinction between attestation and subscription 208 §190. Number of subscribing witnesses 209 §191. What determines competency of subscribing witnesses 210 §192. Time at which competency must exist 212 §193. Who are competent attesting witnesses 213 §194. Who are beneficiaries. — Nature of interest 213 §19,5. Effect of release 215 §196. Effect of modern statutes 215 §197. Husband or wife of beneficiary. — Common law rule 216 §198. Effect of modem statutes 217 §199. Competency of heir of beneficiary. — Probate judge, executor, etc. .219 §200. Husband of testatrix 221 CONTENTS. xiu PAGE. §201. What subscribing witnesses are required to attest 222 §202. The signature of testator to be attested by witnesses 222 §203, Acknowledgment of signature by testator to be attested 222 §204. Acknowledgment of signature by otlier 223 §205. Form of acknowledgment 224 §206. Acknowledgment of will instead of signature 220 §207. Effect of failure to sign or acknowledge before witnesses 228 §208. Capacity of testator to be attested by witnesses 228 §209. Presence. — Mental cognition 228 §210. Presence. — Physical proximity 230 §211. What is a reasonable effort 231 §212. What testator or witness must be able to see 233 §213. Minority view of meaning of presence 233 §214. What is presence of one who is blind 234 §215. Effect of acknowledgment by witness of his signature not made in presence of testator 235 §216 Presence of each other 235 §217. Aniiiius attestandi 236 §218, Request of testator 237 §219. Signature by witness 238- §220. Signature of witness by another 239 §221 Place of signature of witness 240 §222, Order of signing 241 §223. Necessity and value of attestation clause. 244 §224. Residence of witnesses 245 PART V PUBLICATION. §225, Publication.— Definition 245 §226. Form of publication 245 §227, Necessity of publication 247 §228. Publication not a substitute for acknowledgment of signature. .249 CHAPTER XIII. EXTRINSIC ELEMENTS OF HOLOGRAPHIC, MYSTIC AND NUNCUPATIVE WILLS. PART I— HOLOGRAPHIC WILLS. §229. General nature of Holographic wills 250 §230. Formalities of Holographic wills 251 §231, Place of deposit of Holographic will 253 PART II — NUNCUPATIVE WILLS AT COMMON LAW. §232. Definition and history of law of nuncupative will 254 §233. Nuncupative wills made by testators of favored classes 257 §234. W^hen nuncupative wills can be made by testators of unfavored classes 258 xiv CONTENTS. PAGE. §235. Place where nuncupative wills can be made by member of un- favored class 261 §236. The inherent elements of the nuncupative will 261 §237. The extrinsic formalities of the nuncupative will. — The rogatio testium 263 §238. Number and competency of witnesses to nuncupative wills.... 265 §239. Reduction to writing 266 §240. What can pass by nuncupative will 267 PART III — NUNCUPATIVE TESTAMENTS AT LOUISIANA LAW. §241. Nuncupative testaments by public act 268 §242. Nuncupative testaments by private act 270 PART IV MYSTIC TESTAMENTS. §243. Mystic testaments 270 CHAPTER XIV. REVOCATION. §244. Nature of revocation and history of doctrine of revocation 272 §245. Classes of revocation 274 §246. Revocation by means of acts manifest on face of the will 275 §247. Act manifest on instrument. — Burning 275 §248. Tearing • 276 §249. Cancelling 277 §250. Mutilation 280 §251. Obliterating 281 §252. Destruction 281 §253. Destruction of duplicate wi^l 282 §254. Partial revocation by act manifest on the will 283 §255. Revocation prevented bj' fraud 285 §256. Animus revocandi. — In general 288 §257. Animus revocandi §258. Animus revocandi . — Who is capable of revoking a will 289 —Mistake of fact 290 §259. Animus revocandi. — Mistake of law 290 §260. Animus revocandi. — Attempt to alter will 291 §261. Animus revocandi. — Destruction without testato'-'s authority . .292 §262. Revocation by later instrument. — In general 292 §263. Revocation by informal instrument 293 §264. Revocation by formal instrument 293 §265. Revocation by later instrument not a will 295 §266. What shows testator's intention to revoke will 296 §267. Revocation by later will. — Express revocation clause 296 §268. Revocation by later will. — Xo clause of express revocation. .. .298 $269. Revocation by later instrument. — Distinction between will and codicil. .' 299 CONTENTS. XV PAGE, §270. Effect of loss of later instrument 301 §271. Effect of revocation of later instrument at common law 302 §272. Effect of revocation of later instrument under modern statutes in England 303 §273. Effect of revocation of later instrument. — American rule 304 §274. Effect of revocation of later instrument. — American statutes. .306 §275. Conditional revocation. — In general 307 §276. Conditional revocation by act manifest on instrument 308 §277. Conditional revocation by later instrument 309 §278. Revocation by alteration of estate. — At common law and equity.. 313 §279. Revocation by alteration of estate. — ^Modern statutes 316 §280. Revocation by change of circumstances. — In general 318 §281. Effect of marriage on will of husband. — Common law and statute. 319 §282. Effect of birth of child on will of father. — Common law 322 §283. Effect of marriage and birth of child on man's will 322 §284. Effect of marriage on will of wife. — Common law and statute. . .324 §285. Effect of change not specified by law 327 §286. Effect of alteration of circumstances after revocation is com- plete 328 §287. Effect of birth of child upon will of childless parent 328 §288. Effect of birth of child upon will of parent who has other children living 329 §289. Construction of these statutes. — "Having no child." 330 §290. Construction of these statutes. — "Subsequent" birth, or having child "afterward" 331 §291. Omission of children from a will 332 §292. What shows intentional omission of a child 333 §293. What is a provision for a child 336 §294. Evidence. — How intention to omit must be shown 339 §295. Necessity of contest bv omitted children 339 §296. Effect of omission upon other provisions of will 340 CHAPTER XY. ALTERATION AND PARTIAL SPOLIATION. §297. General principles ^ 342 §298, Definition of alteration 342 §299. Effect of alteration 342 §300. Definition of spoliation 343 §301. Effect of spoliation by a stranger to the will 344 §302. Effect of spoliation by a beneficiary 344 xvi CONTENTS. CHAPTER XYI. REPUBLICATION. PAGE. §303. Definition 345 §304. History of law of republication 345 §305. Modern statutes 346 §306. Methods of republication. — Re-execution .' 346 §307. Methods of re-execution. — Codicil 347 §308. General effect of republication 348 §309. Application of the doctrine of republication. — After-acquired realty. . 349 §310. Revivor of prior revoked will 349 §311. Re-execution cures a defectively executed will 350 CHAPTER XYII. PROBATE AND CONTEST. §312. History and general nature 352 §313. Necessity of probate 356 §314. What must be probated 358 §315. The court of probate powers 360 §316. Effect of delay in probate 362 §317. Who may propound a will for probate 363 §318. Procedure at probate — Petition 364 §319. Notice 365 §320. Examination of witnesses ex parte 368 §321. Contest. — Limitations 371 §322. Inconsistent wills 374 §323. Nature of contest 375 §324. Necessity of parties. — Notice 377 §325. Who may contest 378 §326. Estoppel 382 §327. Who may defend 383 §328. Pleadings .' 384 §329. Issue in probate and contest 385 §330. Procedure at trial. — Open and close 388 §331. Right to a jury in contest 390 §332. General powers of the court 392 §333. Charge of court 393 §3,34. Evidence sufficient to support a verdict 397 §335. Form of verdict and judgment 399 §336. Effect and operation of order of probate 401 §337. Direct attack 401 §338. Appeal and error 403 §339. Collateral attadk. — On whom is probate binding 403 CONTENTS. ^vu PAGE. §340. Collateral attack not allowed §341 What questions are determined by probate -J §342 Effect of saving right of contest to certain parties 41. §343. Effect of judgment refusing to admit will to probate.-rxe-pro-^^^^ pounding '...... 41*4 §344. Costs ^jg §345. Attorney fees • ■•; §346. Validity of agreements with reference to contest '*'■* CHAPTER XYIII. PROBATE AND CONTEST OF LOST AND SPOLIATED WILLS AND FOREIGN WILLS. r LOST AND SPOLIATED WILLS. 420 §347. Definition ^„ §348. Effect on probate of loss or total spoliation of will 4ZU §349. The court ^22 §350. Parties ^^2 §351. Notice ^22 §352. Petition ^22 §353. Jury ^23 §354. Contest II FOREIGN WILLS. , ^ . .,, 423 §355. Definition of foreign will ^^^ §356. Nature of probate of foreign will ^^^ §357. Parties and procedure ^^^ §358. Registry of foreign will CHAPTER XIX. EVIDENCE IN PROBATE AND CONTEST. I-COMPETENCY OF WITNESSES AND GENERAL PRINCIPLES CONTROLLING ADMISSIBILITY OF EVIDENCE. , ,. . 428 §359. Scope of discussion ^^^ §360. Common law rule as to competency V" l' ' ' V \^'- ' §361. Modern statutory rules.-Communications with decedent held in-^^^ admissible ^ 1 A'ii §362. Communications with decedent admissible in will contest. .. .4^1 §363. Competency of subscribing witnesses xviii CONTENTS. PAGE. §364. Confidential communications to one not a subscribing witness. .432 §3C5. Confidential communications to a subscribing witness 433 §366. Evidence of subscribing witnesses 434 §367. Record of evidence given at probate 435 §368. Admissibility of will 436 §369. Definition of burden of proof 437 II EVIDENCE OF EXECUTION. ( ' §370. Burden of proof 439 §371. Presumption where signatures of testator and subscribing wit- nesses are duly proved - 440 §372. Presumption where subscribing- witness forgets facts of exe- cution 441 §373. Presumption where subscribing witness is beyond jurisdiction of court 442 §374. Presumption where subscribing witness denies facts of execu- tion 443 §375. Presumption from character of scrivener who supervised execu- tion 443 §376. Declarations of testator. — Res gestae 444 §377. Declarations of testator. — Not res gestae 445 §378. Expert evidence 445 §379. Evidence negativing execution 446 §380. Evidence of animus testandi 447 §381. Questions of law and fact 448 III EVIDENCE OF INCAPACITY. §382. Burden of proof 448 §383. Presumption of sanity 451 §384. Presumption of continuance of mental condition 452 §385. Nature of will as evidence of capacity 454 §386. Evidence of financial standing of parties 457 §387. Evidence of relations between testator, beneficiaries, and natural objects of bounty 458 §388. Opinion evidence. — Subscribing witnesses 459 §389. Opinion evidence. — Witnesses other than subscribing witnesses. —Experts 461 §300. Opinion evidence. — Non-experts 464 §391. Form of questions not calling for opinion 466 §392. Form of questions calling for opinion 467 §393. Time at which opinion must exist 469 §394. Time to which evidence must relate 469 §395. Evidence of insanity of testator's relatives 4/1 §396. Evidence of res gestae of execution 471 §397. Conduct of testator 472 §398. Ability to answer questions 473 §399. Sudden change of feeling 473 CONTENTS. xix PAGE. §400. Declarations of testator 474 §401. Declarations of legatees, devisees, and contestants 476 §402. Adjudication of insanity and record of guardianship 478 §403. Miscellaneous questions of evidence 479 IV — EVIDENCE OF UNDUE INFLUENCE. §404. Evidence of undue influence largely circumstantial 479 §405. Burden of proof 480 §406. Shifting the burden of proof 481 §407. Extent of burden 484 §408. Presumptions. — In general 484 §409. Parent and child 485 §410. Husband and wife 487 §411. Wills in favor of those living in improper sexual relations with testator 488 §412. Subsequent marriage of parties in unlawful sexual relations. .490 §413. Attorney and client 490 §414. Effect of beneficiary's drawing will 491 §415. Effect of presence of legatees at execution 494 §416. Effect of business relations between testator and beneficiaries. .494 §417. Effect of intimacy 495 §418. Physician, nurse, etc 496 §419. Religious adviser 496 §420. Spiritualistic adviser 497 §421. General rules of presumption 498 §422. Former intention of testator 498 §423. Declarations of testator 499 §424. Declarations of beneficiaries 502 §425. Miscellaneous declarations 505 §426. Nature of will and conduct of beneficiaries 506 §427. Facts explanatory of the nature of the will 508 §428. Condition of testator 510 §429. Circumstances of execution 511 §430. Opinion evidence 513 V — EVIDENCE OF ALTERATION AND PARTIAL SPOLIATION. §431. Burden of proof 513 §432. Presumptions 514 §433. Evidence contradicting or supporting presumption 515 VI — EVIDENCE OF LOST AND SPOLIATED WILLS. §4.34. Degree of proof necessary. — Burden of proof. 515 §435. Witnesses ,517 §436. Evidence of existence of will 517 §437. Declarations of testator as to existence of will 517 §438. Proof of execution 518 §439. When presumption of execution arises 518 XX CONTENTS. PAGE. §440. Evidence of contents 518 §441. Declarations of testator as to contents 520 §442. Evidence of circumstances of destruction 521 §443. Declarations of testator as to circumstances of destruction. .. .522 §444. Admissions against interest 523 §445. Evidence of character and motives of testator and alleged spoliator 523 VII — EVIDENCE IN CASES OF HOLOGRAPHIC AND NUNCUPATIVE WILLS. §446. Holographic wills 523 §447. Nuncupative wills 524 VIII — EVIDENCE OF REVOCATION. §448. Burden of proof 525 §449. Presumptions where will is missing 525 §450. Declarations of testator 527 §451. Declarations of legatees 529 §452. Declarations of others 529 §453. Revocation by lost will. — Burden of proof 529 §454 — Presumptions 529 §455. Proof of revoking deed 531 CHAPTER XX. CONSTRUCTION. GENERAL PRINCIPLES UNDERLYING CONSTRUCTION. §456. General scope of construction 532 §457. Definition 533 §458. Discussion of distinctions and classifications of construction. .533 §459. Value of precedents 534 §460. Intention to be deduced from words employed by testator. . . .537 §461. Importance of ascertaining testator's intention 537 §462. Intention to be deduced from whole will 539 §463. General and particular intent 541 §464. Unjust or absurd intention 542 §465. Testamentary intention presumed to be in accordance with law. .543 §466. Presumption against partial intestacy 544 §467. Presumptions as to disinheritance 547 §468. Devise by implication 551 §469. Construction of wills passing both realty and personalty 554 §470. Inconsistent provisions 555 §471. General rules controlling definitions 556 §472. Punctuation and grammar 557 §473. Modification by context 558 §474. Miscellaneous examples of definitions 561 CONTENTS. xxi CHAPTER XXI. DESCRIPTION OF PROPERTY DISPOSED OF BY WILL. PAGE. §475. Words passing entire estate 563 §476. Estate 564 §477. Property •''6-1 §478. Effects 565 §479. Surplus ^^^ §480. Description of property by reference to its source. . .•. 566 §48L Property excepted from a general devise or bequest 567 §482. Construction of devises of land 567 §483. Mortgages '5^9 §484. Effect of reference to a plat 569 §485. Devise by metes and bounds 5 < §486. Unimproved real estate 571 §487. Effect of mistake in description of real estate 571 §488. Description of realty by popular name 574 §489. After-acquired realty 576 §490. Gift of realty at fixed valuation 578 §491. Gifts of rents 578 §492. Bequests of personalty — furniture 580 §493. Household goods 581 §494. Personal property described by its location 581 §495. Personalty described by its use 583 §496. Money . . . . : 583 §497. Stocks and bonds 584 §498. Notes and other debts 586 §499. Interest on investments 587 §500. Life insurance 587 §501. Release of obligations 588 §502. General and particular description 589 §503. Inconsistent gift of property 589 §504. Construction affected by nature of testator's property interests. . .590 §505. Residuary clauses 591 §506. Form of residuary clause 591 §507. What passes by a residuary clause 592 §508. Effect of failure of part of residuary clause 595 §509. Pro rata distribiition of residuum 596 §510. Effect of inconsistent residuary clauses 596 CHAPTER XXII. DESCRIPTION OF BENEFICIARIES. §511. Husband and wife 598 §512. Heirs. — Primary meaning 599 §513. Husband or wife as "heir" 600 xxii CONTENTS. PAGE. §514. Heirs. — Extended meaning 601 §515. Meaning of "heirs" in bequests of personalty .602 §516. "Heirs" including legatees 604 §517. "Heirs" — restricted meanings — "children" 604 §518. "Heirs of the body" 605 §519. "Heir" meaning grandchildren 606 §520. "Heir" including illegitimate children • 606 §521. Next of kin 607 §522. Children. — Primary meaning 608 §523. Extended meaning of "children" 609 §524. "Children" including grandchildren 610 §525. "Children" including illegitimate children 611 §526. Issue and offspring 611 §527. Descendants 613 §528. Family 614 §529. Relatives 616 §530. Brothers and sisters 617 §531. Nephews and nieces 617 §532. Cousins 617 §533. Representatives 619 §534. Servants 619 §535. Legatees 620 §536. Survivors 620 §537. Miscellaneous. — Occupations 621 §538. Misdescription of beneficiary. — Natural persons 621 §539. Misdescription of beneficiary. — Corporations 622 CHAPTER XXIII. GIFTS TO A CLASS. §540. Definition 625 §541. Examples of gifts to a class 626 §542. Examples of gifts held not to a class 626 §543. Effect of naming members of a class 626 §544. Exclusion from a class , 627 §545. Time of determining the members of a class. — General rule where possession is immediate 628 §546. Where time for determining members of class is fixed by will. .630 §547. Effect of postponement of time of distribution. — Gift to "heirs". .632 §548. Effect of postponement of time of distri])ution. — Gift to others than "heirs" 635 §549. Time of vesting taken as tinu» for determining members of class 636 §550. Lapse in case of gift to a class. — Common law rule 637 §551. Lapse in case of gift to a class. — ^Modern statutory rule 638 CONTENTS. xxiii CHAPTER XXIV. DISTRIBUTION PER STIRPES AND PER CAPITA. PAGE. §552. General principles of distribution in intestacy G41 §553. Statutory distribution adopted in absence of testator's manifest intention 043 §554. Intention clear. — Construction of specific forms of devise. — Per capita 644 §555. Per stirpes. — Substitution specifically directed 64G §556. Per stirpes. — "Heirs" 646 §557. Ambiguous gifts 647 §558. Gift to children of two or more persons 648 §559. Gift to pass as in intestacy 649 CHAPTER XXY. NATURE OF ESTATE GIVEN BY WILL. §560. Fee simple. — General common law rule 650 §561. Example of words passing a fee simple at common law 650 §562. Modern statutory rule 653 §563. Defeasible fees 655 §504. The Rule in Shelley's Case. — Common law 656 §565. The Rule in Shelley's Case. — Modern statutes 658 §566. Fee tail. — General rule 659 §567. The Rule in Wild's Case 660 §568. Modern statutory I'ules. — Fee tail changed to fee simple 661 §569. Modern statutory rules. — Fee tail in first taker. — Foe simple in remainderman 061 §570. Life estates in realty. — Created by express words 001 §571. Estates for widowhood 003 §572. Life estate created by gifts over 063 §573. Life estate created by directions to support, etc 664 §574. Language restricting a fee to a life estate 665 §575. Effect of conferring power to dispose of property 607 §576. Gift of life estate with power to dispose of remainder. — When held life estate 669 §577. Gift of life estate with power to dispose of remainder. — When held fee 672 §578. Remainders and executory devises. — Definition 673 §579. Remainder. — How created 674 §580. Remainder after fee-simple 076 §581. Remainder after life estate with power of disposition of fee. .676 §582. Remainder over on condition broken 677 §583. Validity of remainder 677 xxiv CONTENTS. PAGE. §584. Waiver of remainder • 678 §585. What property passes in remainder 678 §586. Power of life tenant to bind remaindermen 678 §587. Distinctions between interests in severalty, interests in common and joint interests 6/8 §588. Words creating an estate in common, as distinguished from an estate in severalty ' 6/9 §589. Distinction between joint tenancies and estates ia common. — Common law rule 680 §590. Modern statutory rule 681 §591. Definite and indefinite failure of issue. — Distinction and defi- nition 681 §592. Construction of "dying without issue." — Gifts of personalty. .682 §593. Construction of "dying without issue." — Devises of realty at common law, "o- §594. Modern rule 683 §595. Personal property. — Absolute ownership. — Rule in Shelley's case 684 §596. Life interests in personalty. — Possibility of creation 686 §597. Life interests in personalty. — How created 687 §598. Life interests in personalty. — Protection of remainderman 689 CHAPTER XXAT:. GIFTS OF INCOME, AND ANNUITIES. §599. Gifts of income in general 691 §600. For what time income is payable 692 §601. Time from which income is to be estimated 693 §602. Rules for ascertaining income 694 §603. Gift of income charged with support of others 698 §604. Beneficiaries 699 §605. Whether income or support passes 700 §606. Apportionment of income at death of beneficiary 702 §607. Annuities in general '02 §608. Duration of annuities '703 §609. Apportionment of annuities 704 CHAPTER XKYH. TESTAMENTARY TRUSTS OTHER THAN CHARITABLE. §610. Elements of a trust 705 §61 1. Precatory words not creating trust 708 §612. Precatory words creating trust 710 §613 Words showing the motive for the gift 711 CONTENTS. XXV PAGE. §614. Words creating an express trust 713 §615. Dry trusts "15 §616. Effect of failure of trusts 710 §617. Resulting trusts "l*" §618. Duration of trusts 717 §619. Discretionary power of trustees 719 §620. Parol trusts "21 §621. Validity of trusts 722 §622. Extent of interest of beneficiary 72:5 §623. Accumulations '24 §624. Separate estates of married women 724 CHAPTER XXVIIl. THE RULE AGAINST PERPETUITIES AND CHARITABLE TRUSTS. §625. Perpetuities. — General discussion 727 §626. Perpetuities. — Definition and application 728 §627. Origin of rule 729 §628. Original rule and statutory modifications 730 §629. Effect of violation of rule. — Examples 731 §630. Partial violation of rule 732 §631. Examples of gifts not within the rule against perpetuities. .. .733 §632. Examples of gifts within the rule against perpetuities 735 §633. Statutory modifications of the rule against perpetuities 737 §634. Restraints on alienation 738 §635. Extension of rule against alienation to prevent perpetuities. .. .738 §636. Illustrations of violations of statutory rule 740 §637. Cases not within the statutory rule 742 §638. Accumulations "43 §639. Charitable devises. — Definition 745 §640. Rule against perpetuities as applied to gifts to charitable uses. — Time of vesting '46 §641. Rule against perpetuities as applied to gifts to charitable uses. — Restraint on alienation 747 §642. Accumulations for charitable purposes 748 §643. Who may be beneficiaries of a charitable devise 748 §644. Charitable devises to public corporations 752 §645. What are charitable purposes. — Education 753 §646. Public libraries 754 §647. Aid of poor and destitute 755 §648. Hospitals and asylums 756 §649. Support of religion 757 §650. Masses 758 §651. Cemeteries 75S §652. Parks 759 §653. Miscellaneous charitable uses 759 §654. Uses not charitable 760 §655. The doctrine of cy pres 761 xxvi CONTENTS. CHAPTER XXIX VESTED AND CONTINGENT INTERESTS. PAGE. §656. Vested and contingent interests. — Definitions 766 §657. Importance of distinction between vested and contingent in- terests 769 §658. General rule of construction as between vested and contingent interests 769 §659. Interests in realty. — Effect of postponement of possession 770 §660. Effect of power of sale 773 §661. Vested remainders opening to let in after-born remaindermen. .773 §662. Vested defeasible remainders 774 §663. When contingent interests become vested 776 §664. Contingent remainders 779 §665. Contingencies of the person 780 §666. Contingent legacies 781 §667. Vested and contingent legacies. — General rule of construction. . .782 §668. Effect of postponing time of payment to create intermediate interests 783 §669. Effect of postponing time of payment where no intermediate in- terest exists 784 §670. When contingent legacies become vested 787 §671. Destruction of contingent legacy 788 CHAPTER XXX. CONDITIONS. §672. Classes of conditions 789 §673. Condition distinguished from motive 789 §674. Construction of conditions in general 791 §675. Effect of failure of condition 793 §676. Conditions concerning death of devisee 794 §677. Conditions as to birth of issue 800 §678. Conditions as to support for services 801 §679. Conditions as to reformation and conduct of beneficiary 802 §680. Conditions as to presenting claims against testator's estate 803 §681. Conditions in restraint of marriage 803 §682. Conditions as to religious belief 806 §683. Conditions against contesting will 807 §684. Conditions repugnant to the nature of the estate devised 808 §685. Conditions against bankruptcy. — Spendthrift trusts 813 §686. Conditions as to use of property 817 §687. Implied condition against murder of testator by devisee 817 §688. Miscellaneous conditions 819 CONTENTS. xxvii CHAPTER XXXI. POWERS. PAGE. §G89. Definition. — Creation of power of sale 821 §(J90. How a power to devise may l>e created 824 §691. Construction of powers 824 ^(■(92. Who may exercise power. .'. !^30 §693. Powers to be exercised with the consent of designated persons 83.3 §694. Effect of failure to exercise power 833 §695. Power of sale given to life tenants 834 §696. Exercise of power of sale by life tenants 836 §697. Rights of creditors of the donee of a power 837 §698. Necessity of reference to power 838 CHAPTER XXXII. CONVERSION. §699. Conversion in general 841 §700. Power of sale without discretion 842 §701. Power of sale with limited discretion 842 §702. Discretionary power of sale 842 §703. Implied power of sale 843 §704. What sales do not effect a conversion 844 § 705. Double conversion 844 §706. Conversion of personalty into realty 845 §707. Effect of failure of purpose upon conversion. Re-conversion. . . .845 §708. Effect of conversion 846 §709. Time at which conversion takes effect 847 CHAPTER XXXIII. ELECTION. §710. Election in general ^"^^ §711. Election between dower and devise under the will, where tes- tator intends devise to be in lieu of dower 850 §712. Common law rule that devise was presumed to be in addition to dower • ^^^ §713. Statutory rule that devise is presumed to be in lieu of dower 8.'i2 §714. Election between life insurance and gifts under the will 854 §715. Election between community rights and gifts by will 854 §716. Election between homestead rights and gifts by will 855 8717. Election between general property rights and devises by will 856 §718. Election to take property in specie free from power of sale. . . .858 §719. Who may elect ^^^ xxviii CONTENTS. PAGE. §720. How election is effected at common law 860 §721. Effect of qualifying as executor 861 §722. Taking part in litigation r..862 §723. Election by taking possession of property 862 §724. Receipt of money as election 864 §725. Effect of election. — Where election not necessary 864 §726. Where election necessary 865 §727. Full knowledge of rights necessary in common law election. — Right to revoke election 866 §728. Statutory election. — When necessary 867 §729. At what time statutory election must be made 868 §730. What is "filing" under statutes 869 §731. Can a written election be revoked? 870 §732. Estoppel to deny written election 871 §733. Effect of election upon rights as heir 871 §734. Effect of election upon rights to allowance 872 §735. Effect of accepting a provision in lieu of dower upon the right to a distributive share in personalty 872 §736. Effect of election upon rights of dower in intestate property. . . .873 §737. Effect of election upon estates dependent upon interest given by will 873 CHAPTER XXXIY. LAPSED AND VOID LEGACIES AND DEVISES. §738. Lapsed legacies and devises in general 877 §739. Lapse at common law by death of beneficiary 877 §740. Lapse at common law by dissolution of corporation 878 §741. Lapse prevented at common law by testator's intention 878 §742. Effect of modern statutes upon the common law doctrine of lapse 879 §743. "Relations" or "descendants" under the statute 881 §744. Disposition of lapsed legacies and devises 882 §745. Void legacies and devises in general 884 §746. Devolution of void legacies and devises 885 CHAPTER XXXV. CHARGES OF DEBTS AND LEGACIES UPON SPECIFIC PROPERTY. §747. General rule. — Legacies payable out of personalty 887 §748. Charging legacies upon realty — in general 887 §749. Words which charge legacies upon realty 888 §750. Implied charge of legacies upon realty 888 §751. Direction for support and maintenance as a charge 890 §752. Direction that devisee pay money to another as a charge 892 CONTENTS. xxix PAGE. §753. Valuation of property devised 893 §754. Personal liability of devisee 894 §755. Effect of residuary clause blending realty and personalty. — Charge of debts and legacies on realty 895 §756. Effect of blending realty and personalty. — Exoneration of per- sonalty 897 §757. What words show testator's intention to blend realty and per- sonalty 898 §758. Charging legacies upon realty specifieally devised 898 §759. Charging legacies upon personalty specifically bequeathed 900 §760, Enforcement of lien of legacy 901 §761. Enforcing personal liability of devisee 902 §762. General rules as to charge of testator's debts 903 §763. Exoneration of personalty from debts 905 §764. What words charge debts upon realty 906 §765. Payment of liens out of personalty 908 Where liens are not payable out of personalty. — Gifts cum onere 909 CHAPTER XXXYI. CLASSES OF DEVISES AND LEGACIES. §767. Classes of devises and legacies. — General legacies 911 §768. Specific legacies 912 §769. Gifts of stocks, bonds and other securities 914 §770. Demonstrative legacies 915 CHAPTER XXXVII. ABATEMENT, ADEMPTION, ADVANCEMENTS AND CONTRIBUTION. I.— ABATEMENT. §771. Where testator directs order of abatement 917 §772. Where no direction in will. — Residuary legacies 919 §773. General legacies 920 §774. Demonstrative legacies _ 921 §775. Specific legacies. .* 923 §776. Legacies given upon valuable consideration 924 §777. Abatement of devises 925 §778. Legacies given under a power 926 II. — ADEMFnON. §779. Ademption. — Definition 026 §780. Ademption by change of ownership 927 §781. What changes do not affect ademption 928 §782. Ademption by compensation. — Realty 929 XXX CONTENTS. PAGE. §783. Ademption by compensation. — Personalty. — Where testator in loco parentis • 930 §784. Where testator not in loco parentis 932 §785. By what gifts ademption is affected 932 III. ADVANCEMENTS. §78G. Advancements. — General rule 933 §787. Advancements provided for by testator 933 §788. How advances are to be estimated 935 §789. Legacies from which advancements may be deducted 937 §790. Where advances exceed legacy 938 IV. — CONTRIBUTION. §791. Property taken for testator's debts in order of priority 938 §792. Property taken for testator's debts out of order of priority. . . .939 §793. Failure of title 940 CHAPTER XXXATII. SATISFACTION AND CUMULATIVE AND SUBSTITUTIONAL LEGACIES. §794. By gift to debtor 942 §795. By gift to creditor. — Where satisfaction presumed 943 §796. By gift to creditor. — Where no satisfaction presumed 943 §797. Where testator directs satisfaction 944 II. CUMULATIVE AND SUBSTITUTIONAL LEGACIES. §798. Cdmulative and substitutional legacies. — Where testator's inten- tion is expressed 945 §799. Presumption where testator's intention is not expressed 946 §800. Incidents of substitutional and cumulative legacies 949 CHAPTER XXXIX. RIGHTS OF DEVISEES AND LEGATEES TO THE ENJOYMENT OF PROPERTY GIVEN BY WILL. §80L Payment of legacies 951 §802. Where time is fixed by will 951 §803. Rule where the will does not fix the time of payment 954 §804. Interest upon legacies 956 §805. Right of devisees to possession of realty 958 XXXI CONTENTS. CHAPTER XL. SUITS TO CONSTRUE WILLS. PAGE. §806. When suits to construe will lie ■ • §807. Jurisdiction of courts in actions to construe a will J|J4 §808. Parties to suits to construe wills §809. Suit for construction not contest or reformation ^^o §810. Pleadings "^^l §811. Notice ggy §812. Decree gg^ §813. Costs and attorney fees ^^^ §814. Estoppel g^^ §815. Error CHAPTER XLI. EVIDENCE IN AID OF CONSTRUCTION. §816. General principles controlling admissibility of evidence in con-^_^ struction „y „ §817 Evidence admissible to show surrounding circumstances JM §818 Evidence necessary where there is no ambiguity J^* §819. Admissibility of evidence where description is ambiguous 975 §820. Admissibility of evidence where description is not ambiguous. . . .982 §821. Admissibility of evidence where description is insufficient. - • .986 §822. Rule where admissible extrinsic evidence does not explain will. . .987 §823. Patent and latent ambiguities •• LAW OF WILLS. CHAPTER I. INTRODUCTION. §1. The place of the will at modem law. The common law has, in its development, built up its doc- trines upon a framework composed in part largely of common law pleading and in part of such a grouping of subjects as practical convenience suggested. This method produced an outline of law whose great defect was that it contained many cross classifications ; that is, that often the bases of a classifica- tion were changed during the classification itself, and that ac- cordingly one topic which is in its nature essentially a unit is treated under several headings, while other topics are excluded from such classification entirely, and discussed incidentally as outside of the formal classification that should have em- braced them. This defect of the common law has often been observed and commented on unfavorably by philosophical writers on jurisprudence. It is, however, a defect which is in- evitable in a system which has gradually developed by a nat- ural process of evolution into a system which is always fol- lowing an advancing civilizatioji in an attempt to supply the needs and wants of the people, by establishing settled rules for controlling and directing the transactions of daily lifc.^ 1 The only systems ever suggested the theoretical jurist as a substitute which have been constructed in an for existing systems. They have attempt to avoid this defect have been quite exact in their outlines been those curiosities in the history but they never have worked in prac- of jurisprudence, the codes, which tice. have occasionally been drafted by 2 LAW OF WILLS. The law of Wills has always been regarded at common law as a separate topic, to be considered apart from, other branches of the law. This separate treatment is liable to the objection that many of the topics are necessarily treated of in the law of Real and Personal Property, the law of Procedure, the law of Persons and the like. This objection, • however, is as well taken to any other title of the common law as to this one. It is a defect which can never be remedied nntil the whole mass of the common law is analyzed, reduced to its elements, and reconstructed in the form of a written code which shall have the weight of legislative sanction as well as the advantage of a philosophical and orderly arrangement to compensate for the partial break in the continuity of the development of our law. The law of Wills will be discussed in this volume as it is ac- tually treated by the courts today, including what they in- clude and omitting what they omit. §2. Definitions. Will. — The word "will," in the popular meaning of the term, is a dispositon, made by a competent testator in the form prescribed by law, of property over which he has legal power of disposition, which disposition is of such nature as to take effect at the death of the testator.^ In its technical and historical sense, however, a "will" is an instrument of the type described which disposes of realty only.^ Testament. — An instrument which disj)oses of personalty only, is called a "testament" ; and an instrument disposing of both realty and personalty is known as a "will and testament." 2 Bouvicr's Law Dictionary, 3 Bacon's Abridg. "Wills," A; "Will;" 2 Bl. Comm. 499; Swin- Coke on Littleton, Lib, IL Ch. 10, burne on Wills, Pt. 1, Sec. 2; Ba- See. 167, note. con's Abridg. "Wills," A; Colton "But in law most commonly ul- V. Colton, 127 U. S. 300. tima voluntas in script is is used A will may contain other pro- where lands or tenements are de- visions than that stated in the vised, and testamentum where it text, and may appoint an executor concerneth chattels." or guardian without making any provision for a disposition of tes- tator's property. See Sec. 45. LAW OF WILLS. «' The popular meaning of "will" has so far encroached upon the technical meaning, that "will" is used indiscriniinately of instruments passing realty or personalty or both. "Testa- ment," however, is almost never used of an instrument passing realty only. "Testator."— The word "testator" is very commonly used of the person making either a will or a testament. "Devisor:' — "Devisor" is, according to derivation, the correct term for one who makes a will, but, while used, is not com- mon.^ ''Devisee,'' on the other hand, is the word regularly used to denote one to whom realty passes by will. ''Legatee," is properly used to denote one to whom personalty passes by will.^ ''Leo-atee" and "devisee" are frequently interchanged in popular usage, however. "Devise'' and "hequeath."—Oi the verbs used to denote the act of making a will, "devise" is properly used of realty, and "bequeath" of personalty. ''Devise." — Of the nouns used to name the various forms of gift, "devise" is used of a gift of realty. "Legacy." — "Legacy" is used as a gift of a sum of money. "Bequest." — "Bequest" is used of a gift of personalty iti general.^ None of these words have so fixed a legal meaning, however, that a gift will fail because testator does not use the words de- scriptive of the gift or the act of giving with technical accuracy. A "devise" is often miscalled a "bequest,""^ or "bequest" is often used to include both realty and personalty,^ or is used of a gift of money alone.® So the verb "devise" is often used to refer to personalty alone.^^ 4 Coke on Littleton, Lib. II, Ch. Allen v. White, 97 ]\rass.^504; 10 Sec. 17. Lamb v. Lamb, 131 N. Y. 227. 5 Neville v. Dulaney, 89 Va. 842. » White v. Mass. Institute of 6 Keating v. McAdoo, 180 Pa. Technology, 171 Mass. 84. g^.^ 5 10 In re White, 125 N. Y. 544; 1 1n re White, 125 N. Y. 544. Clark v. Clark, 46 S. Car. 230. 8 Evans v. Price, 118 111. 593; LAW OF WILLS. CHAPTER II. HISTORY OF THE LAW OF WILLS AND TESTAMENTS. §3. Wills in primitive nations. The idea of a will seems to be non-existent among primitive communities of a rude type. Among such peoples, rights of private property in land do not exist, and personal property is of little value. Furthermore, the funeral rites in many of these primitive nations are occasions upon which practically all the property of the deceased is destroyed, to do honor to his spirit or to accompany him to the next world. In such a state of society there are really no property rights upon which a will can operate, and the will therefore has really no place in such a system. §4. Effect of development of property rights upon the law of wills. Where property rights become firmly established and of recognized importance in a more advanced state of society, custom indicates certain persons as the natural beneficiaries of so much of the decedent's personal property as is allowed to exist after his death. These persons are generally those whom the sentiment of the community indicates as the most natural successors of the de- cedent. They are not necessarily the children of the decedent. A detailed discussion of this question belongs to sociology rather than law. As an example, it will be sufficient to say that where descent is traced through the female line, the LAW OF WILLS. children of the decedent's sister may be nearer both in law and in affection than his o\\ni.^ Interests in realty remain for many ages ontside the law of property entirely. Rights in realty belong to the tribe or clan as a unit. There is no individual interest of any sort recognized by the law. Progress in this direction is much slower than in the law of personalty. Finally, however, in- dividual rights of greater or less extent are recognized in the dwelling house and surrounding yard, and ultimately in ploughland.^ As these interests become recognized by law, rules as to their descent, and the possibility of a change in this course of descent at the will of the owner, gradually grow up. §5. Causes of the growing importance of the will. — Examples. The will does not become of great practical importance until, by the development of the law of succession in different direc- tions from the prompting of natural feeling, the law's disposi- tion of the property of the decedent becomes sharply at variance with his real wishes. Thus, Sir Henry Maine suggests that the desire of the Roman to leave a will was due to the fact that if he died intestate his estate was divided among his unemanci- pated children, or failing them, among more remote relatives, to the exclusion of those children, often the most dearly loved, whom he had emancijDated. In England the fixed rules of de- scent often gave the property to more remote heirs of the male line to the exclusion of much nearer relatives of the female line, and made inheritance from a half-brother impossible. Such a state of the law suggests that property rights have become settled under a systenf of law of such antiquity that it no longer coincides with the natural feeling of the times. 1 Such seems to have been the existing English villages, it seems rule among the ancient Germans. probable tliat the Germanic tribes Tacitus Germania, C. 20; Pollock who invaded England did not rec- aiid Maitland's History of Engiisli Law, ognize individual ownership of any II. 238. land except the dwelling-house and rrom the organization of the the ploughland. Land used for feudal manor, which in some re- pasture and woodland belonged to spects was a petrefaction of the pre- the village, not to the individual. 6 LAW OF WILLS, §6. TJse of the word "will" in Greek and Roman law. In such civilizations as those of Greece and Rome^ wills were recognized by the law. The name "will" must not mislead, however. The will did not possess the same elements as ours, nor was it identical in those two systems of law. The Greek will, in many cases, at least, seems to have required the con- sent of the heirs for its validity. The primitive Eoman will was originally a public, irrevocable act. They both resembled the English will in disposing of property after the death of the decedent in a manner different from that indicated by the law of intestate succession, but differed from it in many of the characteristic qualites of the Avill as it exists at English and American law. Without a careful study of the different sys- tems of law, it is not safe to claim that the resemblance between the different types of will was any greater than that each country afforded some means, of greater or less extent, of chang- ing the disposition of property after the death of the owner from that prescribed by law in case of intestacy. §7. Effect of Roman law of wills on the English law. Long before the time that the Eoman law had assumed the form in which we are most familiar with it, that of Justinian's Code, the will was recognized by their law and was in most re- spects strikingly like the will which is recognized by modern American and English law. It had substantially the inherent elements which are neces- sary to constitute a valid will under modern systems of law, though the extrinsic formalities were different from ours. This coincidence is in part due simply to the necessary and inevitable similarities which always occur when two nations of substantially similar civilizations, with similar rights of prop- erty recognized by law, deal with similar subject-matters. In such cases resemblance does not always arise from imita- tion. On the other hand, there is no doubt that the ecclesiastical law in England borrowed its law on the subject of testaments very freely and very literally from the Roman law. To which of these two causes the similaritv between the LAW OF WILLS. English and the Roman law of wills is due, is a question that can not now be answered with any degree of accuracy, and can not be discussed in the limits of this subject. The trend of modern research is to recognize the Roman law, probably of earlier date and form than Justinian's Code, as a very import- ant factor in pre-Norman English law.^ §8. English will in pre-Norman period. In England, prior to the ISTorman Conquest, during the so- called Anglo-Saxon period, the will passing both real and per- sonal property was not unknown. The present state of our knowledge of legal history does not warrant us in saying more than that among the great it seems to have been the general rule to leave a will."* Cnut's Laws, II, YO, seem to assume that a man who died without making a will did so, not purposely, but through neg- ligence or because of sudden death. It is probable that the le- ffalitv of the will was well established, whatever may have been the custom among the middle or lower classes as to availing themselves of the privilege.^ It has been suggested, and is quite possible, that this Anglo- Saxon will was not revocable. "We can not think that an instrument bearing a truly testa- mentary character had obtained a well recogiiized place in the Anglo-Saxon folk-law. With hardly an exception these wills are the wills of very great people, kings, queens, king's sons, bishops, earldormen, king's thegns. In the second place, it is plain that in many cases the king's consent must be obtained 3 The Germanic tribes towards imperfect knowledge of early Eng- the south were greatly influenced lish law. Internal evidence, as far by Roman law, and so were the as it goes, tends very strongly to Celts of Britain. Exactly to what show that the influence was much extent the Germanic tribes which earlier and much greater than would invaded Britain were influenced by be inferred from the earlier writers Roman law through either of these upon the liistory of English law. sources , or through the influence * Pollock and Maitland's History of the Roman law in force upon of English Law, Vol. II, 318. the continent, is a question that ^ Pollock and Maitland's History can not be answered in our present of English Law, Vol. 2, p. 320. 8 LAW OF WILLS. if the will is to be valid, if the [will] is to 'stand.' That consent is purchased by a handsome heriot. Often enough the [will] takes the form of a supplicatory letter addressed to the king. In the third place, an appeal is made to ecclesiastical sanctions : a bishop set his cross to the will ; the torments of hell are de- nounced against those who infringe it. Then again, even in the eleventh century, it seems to be quite common that the [will] should be executed in duplicate or triplicate, and that one copy of it should be at once handed over to the monastery which is the principal donee, and this may make us doubt whether it is a revocable instrument."^ §9. Divergence of history of will and testament under feudal- ism. The Xorman Conquest (lOGC A. D.) hastened a set of changes in the social system of England, the result of which is knoA\Ti conveniently by the name of feudalism. The old idea of the feudal system, as a clear, definite, and complete set of institutions, which existed all over Western Europe for six centuries, has been too often refuted to need discussion here. That there were certain peculiarities of organization in West- tern Europe during those centuries is admitted by all. The error lies in assuming that because this organization is now known as the feudal system, it must have been the same in every country and in every century. The feudal system paid great attention to land and the consequences arising out of its ownership, and but little atten- tion to personal property. As a result we must distinguish between the history of the will which passes real property and that of the testament which passes personal property; and the distinction here begun will be found to run into the substantive law of wills as well as the history of the law. Still, the name feudal system is a most convenient general term under which to group the different systems of social or- ganization which in so many various and varying forms was found in Western Europe from in the ninth and tenth centuries crollock and Maitland's History of English Law, Vol. 2, pp. 318, 319. LAW OF WILLS. 9 out of earlier beginnings on down to the fifteenth and sixteenth centuries.^ §10. The will at common law abolished by feudalism. The theories of land ownership which grew np under the feudal system ultimately proved fatal to the validity of the will Mdiereby real property was devised. The reasons which the courts gave for finally holding that real proj^erty could not pass by will may roughly be given as follows : First. — The underlying theory of land ownership was that land was a trust fund for raising a military force. The ten- ant of the higher classes was the captain or the soldier ; the tenant of the lower classes was to support the soldiers by his agriculture. The natural and ordinary duration of the es- tate was, at the outset, for the life of the first tenant; for as it was the ability and merit of the first tenant that had been rewarded by the grant originally, it ought in the feudal view to terminate with his death. Such estate could not in the nature of things be devised. But if as a special favor such grant survived to the heirs of the first tenant, there was still no justification for allowing such tenant to devise these lands to others than his heirs, who did not inherit the merits of the first taker. Second. — The feudal system was soon made a means of extorting money from tenants of each class in favor of their respective superiors. These rights of extortion, as, for in- stance, wardship, the right of the superior lord to the profits of the lands of his tenants during minor- ity, and marriage, the right of the superior lord either to auction off his ward in marriage, or to compel such ward to purchase freedom to remain unmarried, would have been as thoroughly wrecked by the will as they were after- wards by the use. As long, therefore, as the law was con- trolled by feudal considerations, it denied validity to the will. Tliird. — The question of seisin in its technical sense rapidly 7 Indeed, in some of the smaller icnl force is powerful to. this day. German states fovulalism as a ]iolit- 10 LAW OF WILLS. became paramount in land law. Land, when transferrable at all, could be transferred only by livery of seisin or by proceed- ings in a court of record. The will could be classed under neither of these heads, and therefore could not be recognized at law. It may be urged that most of this reasoning is purely verbal, and that a will was not necessarily antagonistic to feudalism. This is undoubtedly true, and its truth is sho\vn by the fact that the will did persist for some considerable time after the es- tablishment of the feudal system.* However, verbal reasoning prevailed, as it did so often at the common law, and by the end of the thirteenth century the com- mon law courts had come to hold uniformly that real property could not be devised by will at the law of England,^ The reason for this rule seems to be in part the fear of un- due influence by the religious men in the last hours of testa- tor's life.i^ "We are told by a plaintive monk that a few years after Glanvil's book was written some new rule was put in force at the instance of Geoffrey Fitz Peter, one of Glanvil's suc- cessors in the justiciarship, so as to invalidate a gift which "William de Mandeville, Earl of Essex, had made on his death bed to Walden Abbey. The ministers of the devil had of late years estabished a law, which until then had never been heard of, to the effect that no one, even though he be one of the great, when he is confined to his bed by sickness, can bequeath by his last will any of the lands or testaments that he has possessed, or grant them to those men of religion whom he loves above all others." ^^ 8 Pollock and Maitland's History ing Monast. IV, 147, beginning: of English Law, Vol. 2, p. 321. "Novi igitur recentesque vencrunt 9 Pollock and Maitland's History qui lianc inauditam saeculo legem of English Law, Vol. 2, pp. 323-327. a ministris zabuli noviter invenfam loGlanvil, VII, 1. statuere decreverunt." William de 11 Pollock and Maitland's History Mandeville died 1189. of English Law, Vol. 2, p. 325, cit- LAW OF WILLS. 11 §11. Attempt to revive wills under statute De Bonis, After the will had lost its standing at common law, the stat- ute De Donis was invoked to give it effect. That statute (13 Ed. I, Stat. I, C. I, Section 2, A. D. 1285) provided that the wish of the donor should be observed in grants of land accord- ing to the form of his deed of gift (secundum for-mam in charta doni sui). It was questioned at once if the insertion in the deed of the words "to him, his heirs, assigns and devisees" would not make land devisable. The courts finally answered this question in the negative, and in the thirteenth century it became settled doctrine that freehold estates in land were not devisable, whether they were common law estates, or estates under the statute De Donis. ^" §12. Exceptions to common law rule. To this rule there were some exceptions made by local cus- tom. In Kent, and in some boroughs and scattered manors, lands remained devisable. An estate for years, being a mere chattel interest, could be disposed of by testament ; though, as this last class is not a freehold interest in lands, it is no excep- tion to the rule already stated.^ ^ §13. Wills in equity. The rise of equity in the fourteenth and fifteenth centuries produced a practical revolution in the law of wills. The old legal rules still remained nominally in full force and effect. But the owner of land couJd deed it to a grantee to hold to the grantor's use, or any use that he might appoint, and equity would enforce this use against the grantee. The original grantor could appoint to this use by will. Put- ting it in another way, he could not devise the land, but he could devise the use, which carried with it all the beneficial results of ownership. By the early part of the fifteenth cen- tury this method of devising uses was quite common.-^ ^ 12 Pollock and Maitland's History Littleton, Lib. II, Cap. 10 Sec. ]**? of English Law, Vol. 2, p. 27. n Black. Con^. 11, 375. 13 Black. Com. II, 374; Coke on 12 LAW OF WILLS. §14. The Statute of Uses. The power to devise the land by the roundabout method of deeding it to a use and devising the use was only one of the many results that flowed from the doctrine of uses. The feudal theory of land ownership was attacked by equity from every side. A great effort of the reactionary party was made through Parliament, and in 1535 the Statute of Uses (27 Hen. VIII, Ch. 10) was passed. This statute provided that the seisin should follow the use; that is, that a grant to A to the use of B should be in law a grant to B. Hence, a deed to a grantee re- serving the use to the grantor did not take the legal title out of the grantor, and a deed to grantee to the use of a third person was in legal effect a deed to such third person. It became impossible under this statute to create a use separate from the legal estate, and as it was impos- sible in law to devise the legal estate, the abolition of uses made it once more impossible to devise lands at all.^^ The sequel to the statute of uses is a most interesting example of how difficult it is to foresee the practical effect of new de- partures in legislation. This statute overthrew the existing law of wills, though there is nothing to make us think that such a result was intended by Parliament, while the speed with which they undid this result makes it probable that this effect of the statute of uses was unforeseen. On the other hand, it was in- tended by this statute to abolish equitable estates, and, as is well known, this purpose proved a practical failure. Conveyancers interposed a second trustee, deeds were made to A for the use of B in trust for C, and C's equitable estate was protected as carefully after the statute as it was before, and under the new system could be devised even more freely and easily than before. §15. The Statute of Wills. The law made a will of lands impossible for just five years. In 1540 the Statute of Wills (32 Hen. VIII, Cap. 1) was passed, to take effect July 20, 1540. This act was so loosely dra^v^i that in 1542 and 1543 it was thought advisable for Par- is piack. Com. IT, .375. LAW OF WILLS. 13 liament to pass a statute to interpret the Statute of Wills, and accordingly the Statute of 34 and 35 Hen. VIII, Cap. 5, was passed. The effect of these two acts was to enable all persons except feme-eoverts, infants, idiots and persons of non-sane mind and memory to devise by will and testament, in writing, two-thirds of their land held by Knights's service and all lands lield by socage tenure. The beneficiary could not be a corporation by the terms of these statutes.^ ^ 16 Some of the leading sections of 32 Hen. VIII, Cap. 1, are as fol- lows: Sec. I. ( 4 ) . That all and every per- son and persons having, or which hereafter shall have, any manors, lands, tenements or hereditaments holden in socage or of the nature of socage tenure, and not having any manors, lands, tenements or hereditaments holden of the king, our sovereign lord, by knight's ser- vice, by socage tenure in chief, or of the nature of socage tenure in chief, nor of any other person or persons by knight's service frora the twentieth day of July, in the year of our Lord God MDXL, shall have full and free liberty, power and authority to give, dispose, will and devise, as well by his last will and testament in writing, or other- wise by any act or acts lawfully executed in his life, all his said manors, lands, tenements or hered- itaments, or any of them, at his free will and pleasure; any law, statute, or other thing heretofore had, made or used to the contrary notwithstanding. Sec. II. And that all and every person and persons having manors, lands, tenements or hereditaments holden of our sovereign lord, his heirs or successors, in socage or of the nature of socage tenure in chief, and having any manors, lands, ten- ements or hereditaments holden of any other person or persons in socage or of the nature of socage tenure, and not having any manors, lands, tenements or hereditaments holden of the king, our sovereign lord, by knight's service, nor of any other lord or person by like service, from the twentieth day of July, in the said year of our Lord God MDXL, shall have full and free liberty, power and authority to give, will, dispose and devise, as well by his last will or testament in writing, or otherwise by any act or acts lawfully executed in his life, all his said manors, lands, ten- ements and hereditaments, or any of them, at his free will and pleas- ure ; any law, statute, custom or other thing heretofore had, made, or used to the contrary notwith- standing. Sec. IV. And it is further en- acted by the authority aforesaid. That all and singular person and persons having any manors, lands, tenements or hereditaments of es- tate of inheritance holden of the king's highness in chief by knight's service, or of the nature of knight's service in chief, from said twen- tieth day of July shall have full power and authority, by his last will, by writing, or otherwise by 14 LAW OF WILLS. §16. Abolition of feudal tenures. During the Civil War in England and the Protectorate of Cromwell (1642-1659) the feudal incidents of the ownership of real property were almost wholly disregarded. When Charles II was restored (1660) it was found impossible to revive these obsolete feudal incidents, and, accordingly, by statute, knight service was, in legal effect, reduced to free and common socage. The effect of this statute upon the law of Wills was, therefore, to enable the owner to dispose by will of all his estate held in fee simple. Since 1660 other statutes have been passed from time to time in England and in the United States, controlling the right to make a will in many ways. From these statutes any act or acts lawfully executed in his life, to give, dispose, will or assign two parts of the same manors, lands, tenements or her- editaments in three parts to be divided, or else so much of the said manors, lands, tenements or hereditaments as shall extend or amount to the yearly value of two parts of the same in three parts to be divided, in certainty and by special divisions, as it may be known in severalty, to and for the advance- ment of his wife, preferment of his children, and payment of his debts, or otherwise at his will and pleasure; any law, statute, cus- tom or other thing to the contrary thereof notwithstanding. Sec. VII confers power similar to Sec. IV over land holden from the king or from any other person by knight's service. Sec. X confers powers similar to Sees. IV and VII over lands holden by knight's service of other persons than the king; and over other tenements in socage, powers similar to those given in Sees. I and II. Sec. XI confers powers similar to Sees. IV, VII and X over lands holden of the king by knight's serv- ice; and over lands holden in socage, powers similar to those given in Sees. I, II and X. 34 and 35 Hen. VIII, Cap. 5, is en- titled "The bill concerning the ex- planation of wills." Some of the leading provisions are here given: Sec. III. . . . words of estate of inheritance by the authority of this present parliament, is and shall be declared expounded, taken and judged of estates of fee-simple only. Sec. XIV. And it is further de- clared and enacted by the author- ity aforesaid. That wills or testa- ments made of any manors, lands, tenements or other hereditaments, by any woman covert, or person within the age of twenty-one years, ideot, or by any person de nan sane memory shall not be taken to be good or eflectual in law. 15 LAW OF WlLLb. .nd the rules of common law, which are still unmodified by statute, have been evolved the rules which are discussed tn detail in this book. „ ,„.„ • • i I. this chapter the history of the law of Wills is consid- ered only to the extent to which it determines the place of wills and test'aments at our law; the further history of the law o Wills which concerns itself with the separate topics discussed in detail in this book being reservedfor discussion m the re- spective chapters devoted to each topic. §17. Testaments in pre-Norman times. The testament passing personal property has a less compli- cated history. In pre-Norman times the power to dispose of personal prop- erty by testament was firmly established. It is not clear whetheV this power applied to the whole of testator's personal property or to a part only. ^18. Doctrine of reasonable parts. By Glanvil's time (A. D. 1187) it was settled that the power of disposing of personal property by testament had limits m some cases. If the testator left neither wife nor children, he could dispose of all of his personal property by testament; but if he left either wife or children, he could dispose of one- half of his personal property by testament, the other half going to the surviving wife or children, as the case might be; while if he left both wife and children, he could dispose of but a third of his personal property (known as the ''deads part ). One third of his personal property (know as the "wiles part") went to his wife; the remaining third (known as "child's part" or "bairn's part") going to the children. ' There has been some dispute whether the rules above stated were the common law of England or only local customs. The weight of authority is that they were the common law of England, and were in force in Glanvil's day over the whole of England. 17 Blackstone. Ill, 492. 16 LAW OF WILLS. §19. Power of testator to dispose of his entire personal prop- erty. This rule ceased to be the law in a great part of England, so gradually that Blackstone says that it is impossible to trace out when first this alteration began, and so thoroughly that it was possible with some show of truth "to deny that it ever had been the law. It was established by the reign of Charles I (1625-1649) that the general rule in England was that tes- tator could dispose by testament of any or all of his personal property, except where the relics of the old law still lingered, under the name of local custom, as in Yorkshire and London. These so-called local customs were one by one uprooted by Par- liament in a series of repealing statutes, and finally the general statute, 1 Vict. C. 26 (1837), gave the testator the general power of disposing of the whole of his personal property. As in the case of the will, the history of the development of law upon the various topics arising under the law of testa- ments will be considered under their respective chapters. §20. History of the law of wills and testaments in the United States. The English colonists who settled the Atlantic coast of what is now the United States in the seventeenth century brought with them the common law of England as modified by the Stat- ute of Wills. Accordingly, where not expressly limited by local statute, the power of a testator to dispose of his realty, as well as his personalty, by last will and testament, has always been recognized in the courts of the United States, ^ot only was American law from the first held to be modified by the Statute of Wills, but the feudal system was never generally held to be a part of our law as being unsuited to our institutions. The law of Wills in the United States is thus based upon English law, and continuous with it in such states as were founded by the English. In the South and West of the United States, however, the original European stock was not English, but French and Spanish. In these sections, therefore, m^arked traces of Koman law, as modified by the French and Spanish, are to be foimd. LAW OF WILLS. 17 Lonisiaua has put into statutory form the French law, which ill turn was based upon the Roman. In California and some of the territories adjoining on the southeast the law of Wills is in part of Spanish origin. From these states statutes have been adopted in some other states. The net result may be said to be that in the greater part of the United States the law of Wills is of pure English origin, modified by modern statutes, showing some influence of Spanish and French law in some of the Southern and Western states ; while in Louisiana the law of Wills is of French-Roman origin, gradually yielding in some resjDect to the influence of tne remaining common law states. JS LAW OF WILLS. CHAPTER III. NATURE AND EXTENT OF TESTAMENTARY POWER. §21. General extent of legislative control before testator's death. The nature and extent of testamentary power must be fully understood and appreciated at the outset of the study of the subject in order to appreciate its position in our jurisprudence and the force and effect of statute law. The right to make a will is in no sense a property right. It did not exist for realty at common law, nor at one time for more than a fraction of a testator's personalty. It is there- fore not a right protected by any of the constitutional pro- visions whereby property is protected.^ It is purely a statutory right, subject to the control of the legislature. After real property has been acquired the legis- lature may add new disqualifications and limitations to testa- mentary power. Thus, after real property was acquired the legislature imposed the new restriction that a testator who left issue surviving him could not leave property to a charity unless by a will made at least a year before his death. This statute was held to be perfectly constitutional as to such previously acquired property.^ Even after a will has been executed the legislature may add now r(>quirements as to form of the will, capacity of testator and the like, at any time before testator's death; and if the legislative intent is manifest that such rules are to be applied 1 Patton V. Patton, .30 0. S. 590. 2^Patton v. Patton, 39 0. S. 5D0. LAW OF WILLS. 19 to wills already executed, no constitutional restrictions stand in the way.^ Thus, when the state constitution, making devises of land to educational associations and corporations void, was adopted after the will was executed, and before testator died, it was held that such devises in the will were thereby made void.^ But unless the intention of the legislature to make the statute apply to wills already executed is manifest, the courts con- strue statutes, which change the law of Wills, as applying only to wills executed after the statute is passed.^ Thus, where a married woman executed a will which, when made, was invalid because there were no witnesses thereto, and subsequently the legislature provided that no witnesses should be necessary, it was held that the statute was not retroactive, and that the will was invalid.*' So where a testator made a will at a time when he lacked capacity, a subsequent statute triving capacity to persons of testator's class was held not to rotroact, and the will was invalid."^ And a statute providing that marriage shall operate as a revocation of a will made before marriage, which will does not on its face show that 3 In re Bridger [1894], 1 Ch. Hofl'man v. IIoiTman, 26 Ala. 535 297; [1893], 1 Ch. 44; Hoffman v. Towell v. Powell, 30 Ala. 697 Hoffman, 26 Ala. 535; Learned's Gregory v. Gates, 92 Ky. 532 Estate, 70 Cal. 140; Hargroves v. Clayson's Will, 24 Oreg. 542 Redd, 43 Ga. 142; Perkins v. Packer v. Packer, 179 Pa. St. 580 George, 45 N. H. 453; Wakefield Kurtz v. Saylor, 20 Pa. St. 205 V. Phelps, 37 N. H. 295; Loveren Camp \^ Stark, 81 Pa. St. 235 V. Lamphrey, 22 N. H. 434; Mundy Shinkle v. McCrock, 17 Pa. St. 159 V. Mundy, 15 N. J. Eq. 290; Clay- Greenough v. (Jreenough, 11 Pa. St son's Will, 24 Oreg. 542; 34 Pac. 489; Barr v. Graybill, 13 Pa. St 358; Long v. Zook, 13 Pa. St. 400; , 396: Murry v. Murry, 6 Watts, Langley v. Langley 18 R. I. 618; 353; Mulkn v. McKehy, 5 Watts. 30 Atl. 465; Elcoc'k's Will, 4 McC. 399; Giddings v. Turgeon, 58 Vt. (S. Car.) 39; Blockman v. Gordon, 106. 2 Rich. Eq. (S. Car.) 43; Hender- <' Packer v. Packer, 179 Pa. St. son V. Ryan, 27 Tex. 670; Ham- 580. ilton V. Flmn, 21 Tex. 713. 7 Gregory v. Gates, 92 Ky. 5.32: 4 Blackbourn v, Tucker, 72 Miss. Burkett v. Whittemore, 36 S. Car. 735_ 428; Mitchell v. Kimbrough, 98 5 Lane's Appeal, 57 Conn. 182; Tonn. 53.5. 20 LAW OF WILLS. it was made in contemplation of marriage, is held not to be retroactive. Hence it does not apply where the marriage was contracted before the statute was passed.^ But it does apply where the will was made before the statute was passed, and the marriage was contracted afterwards.^ Statutory rules of construction are also held not to be retroactive.^*^ §22. General extent of legislative control after testator's death. Upon the death of testator, property rights become fixed. If his will is valid, the interest of his legatees and devisees becomes a vested property right; if his will is invalid, the vested property right accrues to his heirs and next of kin.^^ The legislature can not, therefore, by statute affect the validity of wills executed by testators who have died before the statute was passed. If the will was invalid under the law in force when testator died, no subsequent statute can make it valid ;^- while if the will is valid, no subsequent legislation can avoid it.^^ The legislature may, after testator's death, alter the law as to settlement of estates so as to include the estate of one already deceased.^ ^ Where, at testator's death, the devisee of a contingent remainder could not take on account of alienage, but by change of statute before the remainder vested, such dis- ability was removed, it was held that such devisee could take, the state never having acquired title.^^ The law, too, may be so changed as to affect collateral and prospective rights of per- sons not beneficiaries nor heirs of testator. Thus, after a testator had died, leaving a legacy to a married woman, the legislature could alter the law so as to vest the legacy in the 8 Swan V. Sayles, 16,5 Mass. 177. i3 White v. Keller, 68 Fed. Rep. 9 See See. 281. 706; Kichter v. Bohnsack, 144 Mo. 10 Butler v. Parochial Fund, 92 516; People v. Powers, 147 N. Y. Ilun. 96. 104. 11 Jones V. Robinson, 17 0. S. i* Bredenburg v. Barlin, 36 S. 171; MeCarty v. Hoffman, 23 Pa. Car. 197 (giving surviving execu- St. 507. tor power to sell lands which the 12 Remington v. Bank. 76 Md. will directed to be sold). 546: 25 Atl. 666; Chwatal v. is McGillis v. McGillis, 154 N. Y. Schreiner. 148 N". Y. 683; Hartson 532. v. Elden. 50 X. J. Eq. 522. LAW OF WILLS. 21 married woman free from any control of her Inisband, if the statute were passed before the husband reduced the legacy to his possession.^ ^ §23. Power of testator to exclude his wife and children from a share in his estate. — General rule. In many states the wife has a dower interest in her hus- band's realty and a distributive share in his personal estate, from which he can not exclude her by will.^^ Apart from this provision for the benefit of the wife, the general rule is that a testator may by will exclude both wife and children from sharing in his estate by devising the whole of his property to others by a will executed in due form of law.^^ In Texas, at one time, a testator could deprive his surviving children of only one-fourth of his estate.^^ This statute was subsequently repealed and testator given full power to disinherit his chil- dren.2" In Missouri, under the act of 1805, it seems that a wife who leaves no descendants can not exclude her husband from a share of one-half of her estate, subject to her debts.^^ In Louisiana a second wife can take by will only one-third of her husband's estate if he left children surviving by his first 16 Trapnell V. Conklyn, 37 W. Va. 504; In re Merriman, 108 Mich. 2^2 454; McFadin v. Catron, 120 Mo. 11 See Sec. 137. In many states 252; Farmer v. Farmer, 129 Mo. the husband has a similar interest 530; Maddox v. Maddox, 114 Mo. in his wife's property. Hays v. 35; Co.ch v. Gentry 113 Mo. 248; • Seavev (N. H.) (1900) 40 Atl. 189. Smith v. Smith, 48 N J Eq. o6G; isMackall v. Mackall, 135 U. S. Boylan v. Sleeker, 15 Is. J. Lq. 310; 171- Henry v. Hall, 106 Ala. 84; Hubbard v. Hubbard, 7 Oreg. 42; Kno'x V. Knox, 95 Ala. 495; In re Nicholas v. Kershner, 20 U. \ a. Kaufman's Estate, 117 Cal. 288; 251. Wilson's Estate, 117 Cal. 262, 280; • lo Paschal v. Acklm, 2< Tex. 1<3. Taylor v. Cox, 153 111. 220; Mc- 20 Henderson v. Ryan, 2/ lex. Common v. McCommon. 151 HI. 670; Hamilton v. Flinn, 21 Tex. 428; Manatt v. Scott, 106 lo. 203; 713. ,,,,,, Bennett v. Hibbert. 88 lo. 154; - Riohter v. Bohnsaek 144 Mo. Barlow v. Waters - Ky. -; 28 516. So in Kansas. Nueber v. S. W. 785; Hess's Will, 48 Minn. Shod (Kan. App.), 5o Pac. 3o0. 22 LAW OF WILLS. marriage.^2 So a testator may exclude other relatives from sharing in his estate.^^ §24. Exclusion of wife and children in favor of mistress or illegitimate children. _ , , In some states a -gift in excess of a certain fraction of tes- tator's property to his illegitimate children, to the exclusion of his wife or legitimat-e children, is forbidden by statute. Thus, in South Carolina a testator having a wife and legitimate chil- dren can not devise more than one-fourth of the clear value of his propertv to his mistress or illegitimate children. ^^ 'No device is permitted to evade this prohibition. So when testa- tor devised one-fourth of his property to his illegitimate child, and, in addition to this, left a legacy to his executor, with the secret understanding that it was to be used for the illegtimate child, such legacy was held void.^^ In some states it is forbidden by statute for a testator to devise property to his mistress, to the exclusion of his wife or children.* Unless there is such a statute, however, no rule of law prevents a testator from devising property to an ille- gitimate child in existence when the will is executed, even to the exclusion of his legitimate children. §25. Exclusion of wife and children in favor of charities, ' In many states it is provided by statute that a testator can not by will devise or bequeath property to a charitable cor- poration or charitable use unless by a will executed a specified 22Theurer's Succession, 38 La. son, — S. Car. — ; 46 L. R. A. Ann. 510. 517. 23 Cutler V. Cutler, 103 Wis. 258. 25 Gore v. Clark, 37 S. Car. 537 ; 24Breithaupt v. Bauskett, 1 Rich. 16 S. E. 614; 20 L. R. A. 465. Eq. 465, Appx; Hull v. Hull, 2 'Gibson v. Dooley, 32 La. Ann. Strob. Eq. 174; Taylor v. McRa, 959. 3 Rich. Eq. 96; Beaty v. Richard- LAW OF WILLS. 23 time before the death of testator.-*' The length of time that must in such cases intervene between the execution of the will and the death of the testator, in order to render the will valid, depends upon the local statute, and varies from thirty days to a year in the diil'crent states. In such a case the only persons who can take advantage of the invalidity of the will are those to whom the j)roperty would pass if the devise to the charity were defeated. Thus, in a recent Ohio case testator devised to the Ohio State University a certain amount, to go to his nephews if the devise should fail; provided that if his daugh- ter should ratify the bequest to the university the said nephews should not in such case receive such bequest. Testator died within the year, leaving a daughter, who ratified the bequest. It was held that the nephews in such case could not take ad- vantage of the invalidity of the bequest.^'^ The fact that the beneficiary is a corporation, authorized by its charter to take devises and legacies, does not prevent the application of these statutes as to the time that must elapse •between testator's execution of the will and his death.^^ Un- der these statutes the date of the execution of the will is ma- terial. When the different acts of execution take place at the same transaction the date of executon is, of course, purely one of fact. If they take place at different occasions the date of the execution of the will is the date when the last act required by statute was performed. Thus, a testator signed his will and on a later occasion, three months afterward, acknowledged it as his will before two witnesses. The will was controlled by Pennsylvania law, by which the witnesses were required to 29Kelley v. Welborne (Ga.)-, Gans, 110 Pa. St. 17; Milwaukee 1900; 35 S. E. G3(i; Wetter v. Protestant Home for Aged v. Habersham, 60 Ga. 193; Schmidt's . Becher, 87 Wis. 409; 45 Am. & Estate, 15 Mont. 117; Fairchild v. Eng. Corp. Cas. 502. Edson, 154 N. Y. 199; Kavanaugh's 27 Trustees v. Folsom, 50 0. S. Will, 125 N. Y. 418, affirming 53 701. To a like effect is Trustees of Hun. 1; Trustees O. S. U. v. Fol- Amherst v. Ritch, l.ll N. Y. 282; som, 56 O. S. 701; Luebbe's Estate. Allen v. Stevens, 49 N. Y. S. 431. 179 Pa. St. 447; Knight's Estate, 28 Kavanaugh's Will, 125 N. Y. 159 Pa. St. 500; Hodnett's Estate, 418. affirming 53 Hun. 1; Fairchild 154 Pa. St. 485; Hoffner's Estate, v. Edson, 154 N. Y. 199, affirming 161 Pa. St. 331 ; Frazier v. Church, 77 Hun. 298. 147 Pa. St. 250; Reimensnydcr v. 24 LAW OF WILLS. attest but not to suLscribe. It was held that the will was ex- ecuted upon the day when testator acknowledged the will, and as he died on that same dav, the will was invalid.-^ Another question sometimes presented under these statutes arises where two or more wills have been executed, the latest of which is executed so short a time before testator's death that it is invalid, and the devise or bequest is claimed under the earlier will. This is, of course, a question of revocation. If the second will disposes of all testator's property it revokes a prior gift, even if the same gift is given by the later will f° while a codicil purporting to "revoke" a bequest, but only changing the date of payment, was held not to revoke a gift under a prior will.^^ The gift, furthermore, must be to a charitable corporation, use and the like, as required by statute, in order to be invalid. Thus, a gift to the "pastor" of a des- ignated church is not invalid if the will is executed within the time limited.''''" Another restriction upon testator's excluding his wife or children from his estate in favor of a charity limits the amount of his estate which testator may devise to charity. Where such restriction is in force it allows testator to dispose of from a third to a half of his estate in this manner.^^ Many of the states in which restrictions like these exist limit both the amount of property wliich testator may bestow in charity and the time which must elapse between the execution of the will and the death of testator.^'* Where such restrictions are in force no evasion is allowed. Thus testator can not devise 29 Gray's Estate, 147 Ta. St. G7. Welborne (Ga.). 1000; 35 S. E. 3oHofTner's Estate, IGl Pa. St. C36 ; White v. McKeon, 93 Ga. 343 331. (which holds that §2419 limiting 31 \Yatt's Estate, 168 Pa. St. 422. testator's power to one-third of his (Ilenee the gift was good, though property was not in force before the codicil was executed so near 1S63) ; Healy v. Reed, 153 Mass. testator's death as to be invalid.) 1.17; 10 L. E. A. 766; Trustees of 32Hodnett's Estate, 154 Pa. St. Amherst v. Ritch, 151 N. Y. 282; 485. Crane's Will (X. Y.) (1899); 54 33 Bowdoin College v. Merritt, 75 N. E. 1089. Fed. 480 (based on the California 34 Kelley v. Welborne (Ga.) Statute) ; Royer's Estate, 123 Cal. (1900) ; 35 S. E. 636. 614; 44 L. R. A. 304; Kelley v. LAW OF WILLS. 25 property to an individual on secret trust for a charity when such devise exceeds the amount of property which may he thus disposed of— iu this case, one-half of testator's estate.=^^ Where these restrictions apply to religious and charitable cor- porations, and the like, they can not be extended to municipal corporations.^^ In other jurisdictions testator is entirely pro- hibited or greatly restricted from devising real property to any religious or charitable purposes.^'^ A gift of mixed realty and personalty has been held not totally void where the statute prohibited gifts of realty, but is good as far as the personalty is concerned.^^ Where, under the constitution, only one acre of land may be devised to a religious corporation a devise of a larger tract was held valid where the title failed as to all but one acre."^*^ §26. Perpetuities. Another restraint imposed by law upon testamentary power is as to the length of time which may be interposed between the death of testator and the vesting of the estate devised or bequeathed. This topic logically should be presented here, but it is so interwoven with trusts that, with this reference to it here it is reserved for discussion hereafter.^ ° 35 Trustees of Amherst College bequeathing money to, invest in land V Hitch 151 N. Y. 282. in England, hut this does not apply se' Crane's Will (N. Y.) (1899); to c-olonial wills): Canterbury v. 54 N E 1089. Wyburn (P. C.) (1805): A. C. 37/,, 're Thompson (C. A.) L. R. 89; 64 L. J. P. C, N. S.. 36. 45, Ch. D. 101: In re Parker -^^In re Staebler, 21 Ont. App. (1891), 1 Ch. 682: Chambers v. 266. lliggins (Ky.) 49 S. W. 430: 20 so Barker v. Donnelly. 112 Mo. Ky. L. Rep. 1425: Blackbourn v. 561. Tueker. 72 Miss. 7.35: Barker v. 4o See Sec. 625 e< seg. Donnelly, 112 Mo. 561 (or from 26 LAW OF WILLS. CHAPTER IV. THE LAW BY WHICH A WILL IS GOVERNED. §27. General principles controlling conflict. This topic is often discussed under the name of "conflict of laws." Such title, while convenient and acceptable by long usage, is misleading; for, while there is at 'times such a thing as a conflict of laws, it is extremely rare, and the rules dis- cussed in this chapter are the rules by which such conflict is prevented. A conflict of laws in the correct sense probably exists only when the rules for preventing conflicts are them- selves in conflict. When a testator is domiciled in one state at the time of his death, and leaves property situated in another state, the ques- tion of the validity and enforceability of his will requires, in the first instance, a determination as to which state's system of law is the controlling one. The answer to this question may be decisive in determining the important questions of the legal capacity of testator to make a will ; the proper form of such will; whether it has been revoked or not; the meaning and construction of such will; and the legality of the purpose which it seeks to accomplish. §28. General rule as to realty. The general common law rule on this subject in the United States is that in all these points a will devising real property is governed by the law of the place where the land is situated, LAW OF WILLS. 27 or, as it is called, the lex rei sitae} This general rule is practically without exception where not moditied by statute, as far as concerns the capacity of the testator ^ or the form of the will.^ Thus, where the will was executed with a number of subscribing witnesses, sufficient by the law of the state where testator was domiciled, but not sufficient by the law of the state where the land is situate, it is invalid ;■* and a holographic will, good by the law of testa- tor's domicile, but not by the law of the state where the land is situated, is not sufficient to pass title to such land.^ So the question of revocation is by the great weight of authority, de- termined by the law of the place where the land is situate.^ 1/m re Piercy (1895) ; 1 Ch. 83; 64 L. J. Ch. N. S. 249; Wood v. Paine, 60 Fed. 807; De Vaughn V. Hutchinson, 165 U. S. 566; Kerr V. Moon, 9 Wheat. (U. S.) 565, McCormick v. Sullivant, 10 Wheat. (U. S.), 192; Varner v. Bevil, 17 Ala. 286; Dickey v. Vann, 81 Ala. 425; Readman v. Ferguson, 13 App. D. C. 60; Knight v. Wheedon, 104 Ga. 309; 30 S. E. 794 ; Frazier v. Boggs, 37 Fla. 307 ; Evansville, etc., Company v. Winsor, 148 Ind. 682; Lucas v. Tucker, 17 Ind. 41 ; Calloway v. Doe, 1 Blackf. (Ind.) 372; Rogge's Succession, 49 La. Ann. 37; Eyre v. Storer, 37 N. H. 114; Trowbridge v. Metcalf, 39 M. Y. Supp. 241; Bailey v. Bailey, 8 • Ohio, 239 ; Meese v. Keefe, 10 Ohio, 362 ; Pepper's Estate, 148 Pa. St. 5; Holman v. Hopkins, 27 Tex. 38. 2 Evansville etc. Company v. Winsor, 148 Ind. 682; Eyre v. Storer, 37 N. H. 114; Carpenter v. Bell, 96 Tenn. 294 (married woman). 3 Goodman v. Winter, 64 Ala. 410; Crolly v. Clark, 20 Fla. 849 Frazier v. Boggs, 37 Fla. 307 Knight V. Wheodon, 104 Ga. 309 30 S. E. 794; Lynch v. Miller, 54 lo. 516; Robertson v. Barbour, 6 T. B. Mon. 524; Cornelison v. Browning, 10 B. Mon. 425; Ear- hart's Succession, 50 La. Ann. 524 : Potter v. Titcomb, 22 Me. 300; Keith v. Keith, 97 Mo. 223; Nelson V. Potter, 50 N. J. L. 324; Knop- pel V. Holm, 52 N. Y. Supp. 330; Holman v. Hopkins, 27 Tex. 38. 4 Crolly V. Clark, 20 Fla. 849; Knight V. Wlieedon, 104 Ga. 309; 30 S. E. 794; Cornelison v. Brown- ing, 10 B. Mon. (Ky.) 425; Nelson V. Potter, 50 N. J. L. 324. 5 Lynch v. Miller, 54 lo. 516; Jones V. Robinson, 17 O. S. 171. c Evansville etc. Company v. Winsor, 148 Ind. 682. De Vaughn V. Hutchinson, 165 U. S. 566; Jones V. Habersham, 107 U. S. 174; Clark's Appeal, 70 Conn. 195 j Fra- zier V. Boggs, 37 Fla. 307 ; Sevier V. Douglass, 44 La. Ann. 605 ; Guaranty Trust Co. v. Maxwell, — N. J. Eq. — ; Pratt v. Doughlass, 38 N. J. Eq. 516 ; 30 Atl. 339 ; White V. Howard, 46 N. Y. 144; Knox v. Jones, 47 N. Y. 389; Page's Estate, 75 Pa. St. 87; Atkinson v. Staigg, 13 R. I. 725; Harrison v. Weather- bv, 180 111. 418. 28 I.AW OF WILLS. §29. Law controlling in construction of will. An important exception to the unanimity of judicial opin- ion on this subject is the question of the law governing the con- struction of the will. The weight of authority, in analogy to the other topics already considered, holds that the construc- tion of the will is to be determined by the lex rei sitae. So a will devising property to "heirs" of a person is governed by the lex rei sitae as to the determination of whether an illegit- imate child subsequently legitimated is an heir.'^ But a large minority of the courts hold that the construction of a will is to be governed by the lex domicilii, even as concerning land situated in another jurisdiction, unless it shall appear from the will that he drew it with reference to the lex rei sitae.^ Thus a grant of land outside the state of testator's domicile to his sister-in-law and her "heirs" was held to be construed by the law of the domicile of testator. In this case the law of testator's domicile made the husband of the beneficiary her "heir," while by the law of the place where the land was sit- uated the husband was not her "heir." ^ So a devise to a person for, life, and remainder to the heirs of his body, was to be construed by the law of testator's domi- cile. In this case testator was domiciled in Missouri, and the land was situated in Kansas. The life tenant died, leaving a son born illegitimate, whom he had recognized as his o^vn son, but whose mother he had never married. In Kansas such child would be thereby rendered legitimate; in Missouri he would not be. The court held that the law of testator's dom- icile must govern, and that the illegitimate child could not take as "heir" of life tenant.^ ° In this case it was said that the law of the domicile, prima facie, controlled the meaning of thv. words used in the will, unless the circumstances of the TMcNicoll V. Ives, 59 O. S. 401; ; 18 So. 390; Ford v. Ford, 70 De Wolf V. Middleton, 18 R. I. 810. Wis. 19; 72 Wis. 621. sKoith V. Eaton, .58 Kan. 7.32; o Lincoln v. Perry, 149 Mass. Lincoln v. Perry, 149 Mass. 3G8 ; 3 565; Stokes v. Stokes, <8 L. T. Kep. J ami. pi,..,i,berlain 43 N. rn P7 ^ T P D & \ N- S. 55; Cluwiberlam v. Chamberlain, ■*i 50; 67 L. J P. IX ^ A^ ^, „^^,,,, g Ohio Siokles V New Orleans, «U rea. i.. ■*-■»• i o n «? 8 S 06 C C A. 204: Handley v. 144; Mannel v. Mannel, 13 0. S^ pllnie;! Ol' Fed. 948; Yore v. Cook, 458: Fit.simmons v. Johnson, 90 67 111. App. 586; Gaines's Succcs- Tenn. 416. 30 LAW or WILLS. will be recognized by other courts.-^ ^ This rule applies to the capacity of testator and the form of the will.^'* A holographic will made in New York by one domiciled in Quebec while on a short visit to New York is valid where in compliance with Quebec law.-^^ And on the other hand, a holographic will made in Louisiana by one domiciled in Ohio while on a visit to Louisiana is invalid where not permitted by Ohio law,^^ So questions of construction are controlled by the law of tes- tator's domicile.-^ '^ When testator devised property to the heirs of a named per- son it was held that the law of testator's domicile and not the law of the domicile of this named person should govern.^ ^ So where a testator by will gave a legacy to a charitable institu- tion it was held that the law of his domicile governed as to the length of time that must elapse between the execution of such will and the death of testator in order to make it a valid will, even though the legacy could have been paid only by sell- ing land in another state.^^ Thus, where a state statute forbade testator to dispose by will of more than half of his property to charity, it was held that such statute had no application where a non-resident made a bequest to a corj)oration in that state.20 A trust of personalty created for the benefit of a married woman is governed by the law of testator's domicile.^^ 13 Aganoor's Trust, 13 Rep. 677. 192; Adams v. Farley (Miss.) 18 14 Stokes V. Stokes, 78 L. T. Rep. So. 390; Jenkins v. Trust Company, 50; 67 L. J. P. D. & A. N. S. 55; 53 N. J. Eq. 194; 32 Atl. 208; Ro Ross V. Ross, 25 Can. S. C. 307; senbaum v. Garrett, 57 N. J. Eq Sickles V. New Orleans, 80 Fed. 186; Osborne v. Dammert, 140 N. Y 868 ; 26 C. C. A. 204 ; Handley v. 30 ; Dammert v. Osborne, 141 N. Y Palmer, 91 Fed. Rep. 948; Cham- 564; Crandell v. Barker, 8 N. D bcrlain v. Chamberlain, 43 N. Y. 263; Knox v. Barker, 8 N. D. 272 424. 18 Proctor v. Clark, 154 Mass. 45; 13 Ross V. Ross, 25 Can. S. C. R. 12 L. R. A. 721. 307. To the same effect is Stokes lo Jenkins v.. Trust Co., 53 N. J. V. Stokes, 78 Law. T. Rep. 50; 67 Eq. 194; so Carter v. Presbyterian L. J. P. D. and A. X. S. 55. Church, 68 Hun, 435. 10 Manuel v. Manuel, 13 0. S. 458. 20 Healy v. Read, 153 Mass. 197; 17 Kain v. Gibboney, 101 U. S. 10 L. R. A. 766. 362; Harrison v. Nixon, 6 Pet. (U. 21 Rosenbaum v. Garrett, 57 N. S.) 483; Whitney v. Dodge, 105 Cal. J. Eq. 186. LAW OF WILLS. 'Si §32. Effect of change of domicile. Where testator possessed capacity by the law of his domicile at the time he made his will, and made it in a form there valid bj law, and afterwards removes into another jurisdiction, where he either does not possess capacity^^ or by whose law his will is not executed properly,^^ and retains his domicile there until his death, his will is controlled by the law of his later domicile, and is held to be invalid. So where the consent of a husband to the will made by his wife was binding where made, but not binding by the law of the wife's domicile at her death, it was held that the law of her domicile at her death controlled and he was not bound by his assent to that will.-^ §33. Distinction between realty and personalty. A leasehold estate is, of course, personal property, and a bequest thereof is controlled by the law of the domicile of testator.^^ The law of testator's domicile controls as to be- quests of personalty, even where it becomes necessary to sell testator's realty to pay the legacies.^^ §34. Law controlling in conversion. While the law of the place where the realty is situated determines whether testator's will effects an equitable conver- sion of realty into personalty ,2" yet if it has this effect the law of testator's domicile controls as to the validity of his bequests of such property, treated by the doctrine of conversion as personalty.^^ 22 Shute V. Sargent, G7 N. H. 305. " Guaranty Trust Co. v. Maxwell, — 23 Nat V. Coons, 10 Mo. 54,3; Mc- N. J. Eq. — ; 30 Atl. 339; White Cune V. House, 8 Ohio 144. » v. Howard, 46 N. Y. 144; Page's 2-t Shute V. Sargent, 67 N. H. 305. Estate, 75 Pa. St. 87^ 25 Despard v. Churchill, 53 N. Y. 28 Lincoln v. Perry, 149 Mass. 192. 368; Codman v. Krell, 152 Mass. 26 Jenkins v. Trust Company, 53 214; Proctor v. Clark, 154 Mass. N. J. Eq. 194; Carter v. Presbyte- 45; Penfield v. Towne. 1 N. Dak. rian Church, 68 Hun, 435. 216; Tonnele v. Zabriskie, 51 N. J. 27 Clarke's Appeal, 70 Conn. 195; Eq. 557. Penfield v. Tower, 1 N. Dak. 216; 32 LAW OF WILLS. §35. Law controlling in trusts. Where a devise of land creates a trust its validity is to be determined by the law of the place where the land is situated.^® Where a bequest of personalty creates a trust its validity is primarily to be determined by the law of the domicile of testa- tor, and not the law of the place where the property is situate.^*^ So where a trust is valid by the law of testator's domicile it will not be rendered invalid by the fact that the trustee, the property, and many of the beneficiaries are in a state where such trust is invalid as in violation of the rule against perpetuities.^^ Where the trust may be executed in testator's domicile in compliance with the law there, a trustee can not make the trust unenforceable by withdrawing with the trust funds to another state where such trust is void as in unlawful restraint of alienation.^2 There are, however, two qualifications to this doctrine. First, where the personal property is situated in the ju- risdiction of testator's' domicile, and the testament directs that the proceeds be transmitted to another jurisdiction, and there applied to a trust, the courts of testator's domicile often give effect to such testament when the trust is la^^^ul by the law of the jurisdiction where it is to be perfonucd, though it could not be enforced in the jurisdiction of testator's domicile.-^^ 29 Ford V. Ford, 80 Mich. 42; 44 N. W. 1057. 30 Canterbury v. Wyburn (1895) A. C. 89; 64 L. J. P. C. (N. S.) 36; Whitney v. Dodge, 105 Cal. 192 : Penfield v. Tower, 1 N. Dak. 216; Despard v. Churchill, 53 N. Y. 192; Osborn v. Dammert, 140 N. Y. 30; Dammert v. Osborn, 141 N. Y. 564; Cross V. U. S; Trust Co., 131 N. Y. 330: 15 L. R. A. 606; Rosonbaum v. Garrett, 57 N. J. Eq. 186; 41 Atl. 252. 31 Cross V. U. S. Trust Co., 131 N. Y. 330; 15 L. R. A. 606. 32 Whitney v. Dodge, 105 Cal. 192. 33 Hope V. Brewer, 136 N. Y. 126; 18 L. R. A. 458, following Cham- berlain V. Chamberlain, 43 N. Y. 424 ; Despard v. Churchill, 53 N. Y. 192 ; In re PIuss, 126 N. Y. 537, and distinguishing Bascom v. Albertson, 34 N. Y. 587, as being a case in which it did not appear that the trustees could take under the law of their jurisdiction. LAW OF WILLS. *^ Second, that where a will directs that specific funds be re- moved to another state, and there administered, the validity of such bequest is to be determined by the law of such other state,'^-* thouiiii the general rule is that such other state will follow the lex domicilii. So where a testator directs that certain funds be sent to an- other jurisdiction, and there delivered to a corporation not yet created, the validity of such gift is determined by the law of the jurisdiction to which such funds arc to be sent.^^ Hence, where personalty thus bequeathed is situate in a jurisdiction other than that of testator's domicile, the court will enforce such bequests as are in conformity with the law of testator's domicile, provided they do not also conflict with the law of the state in which such property is situated. If in conflict with such law the property or the proceeds thereof will be trans- mitted to the executor in the state of testator's domicile for distribution under such law and the will.^^ So in case of a conflict of laws as to the rule of perpetuities the law of testator's domicile governs as to trusts of person- alty,=^'^ but where the trust is of realty the law of the juris- -dietion where the realty is situate controls.^^ §36. Law controlling as to capacity of beneficiary to take. In manv states a limit is placed to the amount of property which can be held by a corporation incorporated under the laws of such states. Where such laws exist, and a devise is made of lands situate in one state to a corporation incorpo- rated under the laws of another state, which corporation al- readv holds property to the full limit allowed by the laws of the state of its creation, a question arises as to the effect ot such devise. In some states it is' held that as the corporation 34 Sickles V. New Orleans, 80 Fed. 36 Dammert v. Osborn, 141 N. Y. Rep. 8G8: Chamberlain v. Chamber- 564. lain, 43 N. Y. 424; Jenkins v. Trust 3. Whitney v. Dodge, 105 Cal. & Safe Deposit Co., 53 N. J. Eq. 102; Dammert v. Osborn, 140 N. Y. 30; 141 N. Y. 564. 186 ■ . r» 1 ..,.„ 1 dO "NT Y 3s Ford v. Ford, 80 Mich. 42: 44 35 Dammert v. Osborn, i4U jn. x. > "■ > ' 30; 141 N. Y. 504. N. W. 1057. 34 LAW OF WILLS. has no power to take the property, the devise is a nullity, and the property passes to the residuary devisee or to the h^irs.^^ On the same theory a bequest of personalty to a "commu- nity" in a foreign country was held to depend upon the ca- pacity of the community to take under the laws of such country,^ *^ In other jurisdictions the devise is held to be valid, on the theory that the question of the power of the corporation to hold the land is not a question that can be raised by the heirs or devisees, but only by the state under whose laws the corpora tion is incorporated.^^ In England the statutes of mortmain are held to be local in their effect and not to apply to wills of persons domiciled outside of England.^^ §37. Law controlling as to lapse. Some jurisdictions hold that the question whether a given legacy has lapsed or not is to be determined by the law of the domicile of the legatee.^^ 39 starkweather v. Bible Society, a vain thing in handing it over to 72 111. 50 ; Congregational Society the corporation, which by the very V. Halcj 51 N. Y. Supp. 704; Mc- fact of holding would render itself Graw's Estate, 111 N. Y. 66; liable to have its charter forfeited DeCamp v. Dobbins, 31 N. J. Eq. on that account? Would not pro- 671; House of Mercy v. Davidson, hibition against holding be properly 90 Tex. 529. and necessarily construed as a pro- "The will does not take effect un- hibition against taking also?" til the testator's death; and then, McGraw's Estate, 111 N. Y. 66, if his property is not legally devised quoted and followed in House of or bequeathed, no title vests for a Mercy v. Davidson, 90 Tex. 529. single moment in the devisee or leg- ^o in re Huss, 126 N. Y. 537; 12 atee, but it vests instantly in the L. R. A. 620. heir or next of kin; and the cor- 4i Jones v. Habersham, 107 U. S. poration claiming imdcr the will 174; Stickney's Will, 85 Md. 79; asks the aid of the law to give the 35 L. R. A. 693 ; Hanson v. Little property to it, and in doing so must Sisters of the Poor, 79 Md. 434. Bhow the authority it has to take. 42 Canterbury v. Wyburn (1895) And if there were only a prohibi- App. Rep. 89; 11 Rep. 331. tion in words against holding the 43 Lowndes v. Cooch, 87 Md. 478. property would the law not be doing LAW OF WILLS. 35 §38. Law controlling as to election. The law of the domicile controls as to questions of election.*^ §39. Law controlling as to powers. In determining the validity of the execution of a power given by will the law of the domicile of the donor of the power con- trols, in the absence of statute.^^ In England, by statute, a power exercisible by will is properly executed if in accordance with English law, irrespective of the law of testator's domicile.^^ §40. Law controlling contracts to make a will. The validity of a contract to make a designated person tes- tator's heir is controlled by the law of the place where the land alleged to be affected by such contract is situate."*^ The method of proving the contract, as affected by the Stat- ute of Frauds, is controlled by the law of the forum.'** §41.. Eule in absence of evidence as to what law of domicile is. When no evidence is given as to what the law of the domicile is, the court trying the case will take judicial notice that the state of testator's domicile recognizes the common law as the basis of its system, if such be the case, and will construe the will by the common law.^^ If the law of the state of testator's domicile is not based upon the common law the court will, in the absence of evidence as to what such foreign law is, treat the will as controlled by the law of the forum.^^ 44 Boiling V. Bollinp. 88 Va. 524. 47 Long v. Iless, 154 Til. 482; 27 45 Tatnall v. Hankey, 2 Moore P. L- K. A. 791 ; Fuss v. Fuss, 24 Wis. C. 342; In re Alexander, 6 Jur. N. 25G; 1 Am. Rep. 180. S. 354; /n re Baldwin, 76 L. T. Rep. 4s Emer.y v. Burbank, lfi3 Mass. 462 : 66 T. J. Ch. N. S. 524 ; Sewall 326 ; 39 N. E. 1026. V, Wilmer, 1.32 Mass. 131; Bing- 49 Benbow v. Moore, 114 X. Car. ham's Appeal, 64 Pa. St. 345; Cot- 263: 19 S. E. 156. ting V. De Sartiges, 17 R. I. 668 ; so Davison v. Gibson, 56 Fed. 443. 16 L. R. A. 367. 46 Goods of Huber (1896) Prob. 209. 36 LAW OF WILLS. CHAPTER V. THE INHERENT ELEMENTS OF A WILL. §42. Classification of elements into inherent and extrinsic. In American and English law the Will is as distinct a legal concept as the Contract or the Deed, It possesses certain well- defined elements which characterize it and which distinguish it from other legal concepts. For convenience in discussing them these elements may be roughly grouped into two classes, the extrinsic elements and the inherent elements. This distinction is not made by the courts, but is one to which attention should be paid, as it is a natural and not an arbitrary one. The extrinsic elements of a will are those which may be modified without changing the fundamental idea of a will or its place in our law. They refer to the set form in which a will must by law be cast, such as signature by testator and at- testation by witnesses. In the actual practice these elements are of very great importance, as they determine the validity of the particular will. A will with but one witness where the law requires two is of no force or effect. But the law could be altered so as to require two witnesses or one or more with- out changing the position of the will at law or its essential nature. Hence these elements are here called extrinsic. They are now in almost every jurisdiction, created and controlled by LAW OF WILLS. "* Statute. A full and complete discussion of them will be given in subsequent chapters.^ The inherent elements of a will are those which can not be altered without destroying our very idea of the will and en- tirely altering its place in our law. For instance, a funda- mental idea of a will is that it passes no vested interest in property until the death of the testator.- If this were changed by statute and it were made the law that on due execution of a will the beneficaries named therein at once acquired an inter- est in the property devised the instrument might still be called a will, but it would cease to be the kind of instrument that we now call by that name. In connection with the general discussion of the inherent elements of a will, joint and mutual wills and contracts to make a will will be considered in the two chapters following this. Joint and mutual wills are discussed in this connection because the only question of importance arising on that subject and not included under the general law of wills is whether from the inherent nature of the will a joint or mutual will is possible. Contracts to make a will are also considered because in spite of outward differences a contract to make a will is under certain circumstances treated as a will in equity. §43. Origin and classes of inherent elements. The inherent elements of the will originate in the principles of the common law, which principles have, in some states, been put into statutory form. They are to be grouped under two general heads, in accordance with the classification and nomen- clature used by the courts. (1) The animus testandi. (2) Eevocability. 1 See Chapter XII. Collefj;e v. Merritt, To Fed. 4S0 ; An- 2 President, etc., of Bowdoin drews v. Andrews, 122 X. Car. 352. 88 LAW OF WILLS. §44. Animus testandi not dependent on use of word "will." The animus testandi, or intention of making testamentary disposition, is an expression of very wide import, and sums up a number of elements. Before analyzing these elements a short discussion of the term is necessary. It does not necessarily mean that the word "will" or "testa- ment" must be used in the transaction. A man may make his will animo testandi, though he is so ignorant of law that he thinks it is called a deed or a contract, or though he does not know what to call it. The test is not what he thinks is the legal name of the instrument which he is executing, but what the law calls it, in view of its nature, and of the real intention of the maker as deduced from the instrument and from all the facts and circumstances.^ This statement is not in accord with some obiter in some of the cases cited below, in which the view is expressed that the testator must know that the instrument is a will in order to make a valid will. However, nothing in the actual decisions is at variance with the views expressed in the text.^ So testator's opinion that the addition of a seal was necessary to the validity of the instrument does not prevent it from being .a will, although testator evidently thought that it was a deed,^ 3 Knight V. Tripp, — Cal. — ; 231, and oft repeated that the true 49 Pac. 838; Stumpenhausen's Es- test of the character of an instru- tate, 108 lo. 555; 79 N. W. 376; ntient is not the testator's realization Smith V. Holden, 58 Kan. 535; that it is a will, but his intention Simon v. Wildt, 84 Ky. 157; In re to create a revocable disposition of Lautenshhager. 80 Mich. 285: Caw- his property to accrue and talce ley's Appeal. 13G Pa. St. 628 : Grand effect only upon his death, and pass- Fountain, U. 0. T. R. V. Wilson, 96 ing no present interest." Nichols v. Va. 594: 32 S. E. 48; Lauck v. Emery, 109 Cal. 323. Logan, 45 W. Va. 251. * In re Wood's Estate, 36 Cal. "It is immaterial whether he calls 75; Toeble v. Williams, 80 Ky. 661 ; it a will or a deed; the instrument Swett v. Boardman, 1 Mass. 257; will have operation according to its V.'^aite v. Frisbie, 48 Minn. 420; legal effect." Wall v. Wall, 30 Miss. Tabler v. Tabler, 62 Md. 601 ; Combs <)\, V. Jolly, 3 N. J. Eq. 625; Means v. "It is undoubtedly the general rule Means, 5 Strob. (S. Car.) 167. enunciated by the leading case of s Wuesthoff v. Gennania Life Ins. Habergham v. Vincent, 2 Ves. Ju. Co., 107 N. Y. 580. LAW OF WILLS. ^^ and the fact that testator thought it necessary to acknowledge and file his will and cause it to be recorded does not prevent it from being his will.*' Some slight qualification of this statement may be necessary in jurisdictions where one of the prescribed formalities of the execution of the will is publication, or a declaration by the maker to the witnesses that the instrument executed is the last will and testament. This topic is discussed under "Pub- lication."'^ The converse of this proposition is true. The word "will" is not conclusive of the nature of tlie instrument or of the animus testandl. Thus, where the instrument provides that A gives, devises and bequeaths certain real property to his sons, to have and to hold to them and their heirs forever, and recites that the instrument is given in consideration of a con- tract by these sons to support the grantor and his wife during their lives, and to provide for their funeral after their death, it was held not to be in law, a will, although it concluded : "I do make and publish this as my last will and testament," and was executed as a will.^ Tlie animus testandi, then, does not turn on the presence or absence of the words "will" or "testament," but on the intention of the testator as shoA\Ti by the nature of the instrument and the surrounding facts and circumstances. §45. Animus testandi. — What wishes are testamentary. The first of the ideas included in the "animus testandi" is that the will may deal with any or all of three things. (a) It may deal with the property of the testator either real or personal.^ (b) It may appoint an executor to take charge of the estate oHawes v. Nicholas, 72 Tex. 4S1. « Comer v. Comer, 120 111. 420; 7 See Sees. 225-228. Remington v. Bank, 7G Md. 546. 8 Ward V. Ward. 20 Ky. L. R. 986: 48 S. W. 411: Swann. Ex'or v. Housman, 90 Va. 816. 40 LAW OF WILLS. of the testatx)r and deal with it according to the law and the will.i" (c) It may appoint a guardian for the minor children of testator.^ ^ §46. Animus testandi. — What disposition is not testamentary. Accordingly, the formal expression l)y the decedent of his wishes as to any matter not included under (a), (b) and (c) of the preceding section is not a will, because the subject mat- ter is not testamentary in its character. Thus a formal revoca- tion in writing of a previously made will is not itself a will/- nor is a formal expression of a desire that a certain person should take care of decedent's children where such person was not appointed guardian,^ ^ nor a request to the probate judge to excuse the executor of decedent's will from giving bond,^^ nor an expression of a desire for cremation as a method of burial.^ ^ An instrument by which the maker provided that his son A should receive no share of his estate, and made no further disposition of his property, was held not to be a will and not entitled to probate.^ ^ 10 In re Hickman, 101 Cal. 609; In re John's Will, 30 Ore. 494; 47 Pac. 341; Jolliffe v. Fanning, 10 Rich. 186. 11 Wardwell v. Wardwell, 9 Allen. (Mass.) 518; Stringfellow v. Somer- ville. 95 Va. 701 ; 40 L. R. A. 623 (directing to custody and education of testatrix's child, and appointing a gvmrdian ) . 12 Bayley v. Bailey, 5 Cush. (Mass.) 245. (In this case the in- strument in question was, "It is my wish that the will I made be de- stroyed, and my estate settled ac- cording to law." As it was duly executed in accordance with the law of testator's domicile, it was held to be a valid will. The court said, however, that if it had stopped at the word "destroyed," it would not have been a will. ) 13 Williams v. Noland, 10 Tex. Civ. App. 629; 32 S. W. 328. 14 Baker v. Baker, 51 O. S. 217. 15 /n re Meade's Estate, 118 Cal. 428, citing Sutherland v. Snydor, 84 Va. 880; McBride v. McBride, 26 Gratt. (Va.) 476; /ji re Richardson, 94 Cal. 63. 16 Coffman v. Coffman, 85 Va. 459. (This case turned upon the well- recogni/ed legal principle hereafter discussed. See Sec. 467, that an heir can not be disinherited by mere neg- ative words, no matter how strong, but only by a disposition of testa- tor's property, which leaves nothing to descend to the heir. ) 41 LAW OF WILLS. "" Where decedent left an instrument which divided decedent's property among her children, like a will, but which decedent had commenced with the words ''This is not meant as a legal will, but as a guide," it was held that such instrument was not a wilU" Where decedent left an instrument purporting to be his last will and testament, but which was only the formal recog- niiion of certain women therein named as his legitimate daughters, it was held not to be a will.^^ Likewise the appointment of an attorney to assist the executor in settling the estate is not a testamentary act.^* And a written direction that upon the death of testatrix two deeds should be delivered to her husband was held not to be a wilL2« §47. Animus testandi. — Reality of intention. The second idea involved is that the instrument must express the wishes of the decedent in reality as well as in outward form. If the testator lacks the mental capacity required by law to make a will, he is incapable of entertaining the intention of making a will ; and an instrument in form of a will executed by such a person has no validity in law.^^ So if testator executes an instrument in the form of a Avill while he is under undue influence he does not in reality have the intention of making a will, and the instrument thus exe- cuted is a nullity.^^ Apart from the lack of capacity and undue influence the ordinary rule is that testator knows what he is doing, and executes the will animo testandi A presumption therefore arises that if testator had an opportunity of knowing the con- 17 Ferpuson-Davie v. Ferguson- i^ Ogier's Estate, 101 Cal. 381 ; 35 Davie, L. K. 15 V. & D. 109. Pac. 000. ,„, ^ , -,„ 18 Tn re Williamson's Will, 6 Ohio 20 Young's Estate. 123 Cal. 337. Dec. 505 (Prob. Ct.) Reversed by 21 See Chapter VIII. Common Pleas Court, 6 N. P. 79. " See Chapter IX. 42 LAW OF WILLS. tents of his will he did in fact have such knowledge, and exe- cuted the will -ammo testandi.^^ It need not be shown ordinarily that testator actually read the will, or that it was read to him. His assent will be pre- sumed.^^ This rule has been applied in some cases where testator was illiterate.^^ But in perhaps the majority of cases where the record has presented the question of the reality of testator's intention, it is held that it must be shown affirmatively that testator knew and approved of the contents of his will where he is illiterate,^^ or where the will is written in a foreign language,^''' or where testator is very weak,^^ or dying. ^^ Affirmative proof that testator knew the contents of the will has been required when the will was not in his handwriting.^'^ So where testator was able to communicate his wishes only by means of one who was incompetent to testify it can not be shown that the instrument was executed animo testandi.^^ The pre- sumption that a testator who had the means of knowing the con- tents of the instrument possesses such knowledge, and signs animo testandi may be rebutted.^^ If he signs in ignorance of the nature of the instrument he does not execute the instru- 23 Worthington v. Klemm, 144 28 Day v. Day, 2 Gr. Ch. 549. Mass. 167; Brick v. Brick, 17 Stew. 29 Hildreth v. Marshall, 51 N. J. 282; Kahl v. Schober, 8 Stew. 461; Eq. 241. Maxwell's Will, 4 Hal. Ch. 251 ; Day 3o Gerrish v. Nason, 22 Me. 438. V. Day, 2 Gr. Ch. 549 ; Den v. John- si Potts v. House, 6 Ga. 324. son, 2 South. 454 ; In re Cruin.b, 6 ( In this case the interpreter was x Dem. 478; Black v. Ellis, 3 Hill, S. negro who under the law then in C. 68. force could not be sworn.) 24 See cases cited in preceding 32 Moyer v. Swygart, 125 111. 262. note. (In this case testator began a will, 25 Patton V. Hope, 10 Stew, 522. and provided for one son only. He 26 Day V. Day, 2 Gr, Ch. 549 ; intended to provide for his other Lyons v. Van Riper, 11 C. E. Gr. children, but signed the will, say- 337 ; Den v. Johnson, 2 South. 454; ing that he would dispose of the rest Harrison v. Rowan, 3 Wash. C. C. of his property later. The jury found 580 ; Vandeveer's Will, 6 C. E. Gr. that he signed without the intention 501 ; Rollwagen v. Rollwagen, 63 N. of executing the instrument as a fi- Y. 504. nality, and this verdict was upheld 27 Mittenberger v. Mittenberger, by the courts. The record also con- 78 Mo. 27 ; 8 Mo. App. 306. tains evidence of undue influence Contra, Hoshauer v. Hoshauer, and lack of capacity, however.) 20 Pa. St. 404; Dickinson v. Dick- inson, 61 Pa. St. 401. LAW OF WJILS. 43 ment arwno testandi, aiid it is not his will.^^ But if lie knows the nature of the instrument and its contents, a mistake as to the extent of his property does not avoid the will,^^ nor the ac- cidental omission of an intended benei^.ciary.^^ It has been laid down that if the draughtsman by mistake omitted a material clause, the will is avoided if testator signs thinking that such clause is a part of his will.^^ This is car- rying the principle past the verge of safety, at least where testa- tor may be presumed to be acquainted with the contents of his will. Almost any will might be overthrown, no matter what testator's actual precautions, if this principle is admitted as sound. Where testator gave instructions for drawing his will, but before it was completed he became unconscious, the draft thus made was not his will, as the animus testandi was lacking to that instrument.^'^ The intention to make a will may be lacking where testator executes the instrument in question by mistake for another.-"'^ Where testator executes an instrument with full knowledge of its contents, but as a model or as a jest,^^ the intention to make a will is lacking, and the instrument is not a will. The question is sometimes presented, where the statute r€^ quires less formality for testaments of personalty than for wills, and a testator executes an instrument passing realty and personalty, so as to comply with the requirements of the law as to testaments, but not as to wills, as to the validity of such in- strument as a testament. In such cases the tendency of judi- 33 Jenness v. Hazelton, 58 N. H. were too weak to sij^n. The animus 423 testandi alone was lacking.) 34jenness v. Hazelton, 58 N. H. 38 Goods of Hunt, L. R. 3 P. & 493 D. 250: Hildreth v. Marshall, 51 ^5 Jn re Forbes, 128 X. Y. r,40 ; 60 N. J. Eq. 241 ; Baker v. Baker, 102 Hun, 171. . Wis. 220; 78 N. W. 45.3. 36 Saunders v. Stiles, 2 Redf. 1. so Nioholls v. Nicholls, 2 Phillim.. 37 Aurand v. Wilt, 9 Pa. St. 54. 180 ; Lister v. Smith, 3 Sw. Tr. 282 : (Under the statute then in force Sewell v. Slin-luflf (obiter), 57 Md. the attesting witnesses were not re- 537 : Sweet v. Boardnian. 1 Mass. quired to sign, and testator's signa- 258 ; Barber's Will, 92 Hun. 489. ture might be dispensed with if he 44 LAW OF WILLS. cial opinion is to treat the instrument as a valid testament wherever possible if the evidence shows that the instrument was meant as a finality.^^ §48. Animus testandi. — Expression of intention in definite terms. The intention of testator to make a testamentary disposition of his property, or to appoint an executor or a testamentary guardian, must be expressed in such terms that the court can, without resort to conjecture, determine what was his wish. Both the thing given and the person to whom it is given must, in testamentary dispositions of property, be set forth with suf- ficient certainty.^ ^ In a recent Pennsylvania case testator put a number of valuable securities in envelopes, which he placed in a box. Upon the envelopes he wrote names of certain persons, or directions that they were to go to certain named persons. None of these were signed. On the outside of the box was a direction that it was to go to his attorney in case of his death. On another box full of silverware, jewelry, etc., he wrote "chil- dren, this is my will," and signed it. It was held that neither of these writings was testamentary in character.'*^ So an envelope, on one side of which was written a list of debts due the writer, and on the other side, "These notes to go to my wife," was held not to be a will, since it did not appear what notes were meant. In this case it was clear that "these notes" referred to notes once in the envelope, and not to the list of claims.'^^ Writing the name of testator's child on one of the shares 40 Orgain V. Irvine, 100 Tenn. 193. Estate, 188 Pa. St. 374: Jacoby's 4iHandlcy v. Palmer, 91 Fed. Estate. 190 Pa. St. 382; Whitesides 948 ; In re Richardson, 94 Cal. 65 ; v. Wliitcsides, 28 S. Car. 325 ; Pack 15 L. R. A, 635: Dennis v. Holsap- v. Shanklin, 43 W. Va. 304. pie, 148 Ind. 297 ; Youn^ v. Work, *"- Jacoby's Estate, 190 Pa. St. 76 Miss. 829; Shaffer's Succession, 382. 50 La. Ann. 601: Lippencott v. 43 Shaffer's Succession, 50 La. Davis, N. J. (1894), 28 Atl. 587; Ann. 601. Cope V. Cop6. 45 O. S. 464 : Gaston's LAW OF WILLS. 45 marked off in a diagram of testator's property, which was made a pare of the will, is not a gift of such share to such child.^'* Upon a piece of paper, written and signed by decedent, were the words ''Want wife's relatives to have all property." It was held that this was not a valid will.^^ A rough memorandum which discloses testamentary intent is good, though extrinsic evidence may be necessary to identify the beneficiaries and the subject-matter.'*® To what extent the ordinary rules of construction will serve to reconcile apparently contradictory provisions and bring sense out of apparent incoherency, and to what extent extrinsic evi- dence is admissible to show what testator's intention really was, are questions discussed elsewhere. It is sufficient here to say that if the will, when helped by all the recognized rules of con- struction, and when supplemented by all the extrinsic evidence admissible, does not show any clear and definite intention of testator, either as to his entire scheme of disposition or as to each separate item, the court, however reluctant it may be, has no choice but to declare the will as a whole void for uncer- tainty,'*''' and the property of testator must be distributed with- out regard to such instrument. §49. Animus testandi. — Intention that instrument shall take effect only at death of testator. The third of the ideas included under the term animus tes- tandi is that the will can take effect only at the death of the testator. In the cases of appointment of an executor of the will, or a guardian for testator's minor children, it seems inevitable that the testator must intend that his ovn\ death is to occur before such appointment can take effect. But in the disposition of projierty it is as possible for testator to contemplate such dis- position during his lifetime as after his death. This is one of the important distinctions between the will and the other in- struments whereby title to property is conveyed. ** Houser v. Moore, 31 Pa. St. 34G. Such questions arise in suits for con- *^ Young V. Wark, 76 Miss. 829. struction rather than in j robate and *« Gaston's Estate, 188 Pa. St. 374. contest. See Ch. XL. Cope V. Cope, 45 0. S., 464. 46 LAW OF WILLS. This may be considered with advantage from two pcints of view 1. If the instrument in dispute shows that the maker thereof contemplates that by the provisions thereof the possession and ownership of his property shall pass from him during his life- time, it is clearly not a will, whatever else it may be.'*^ 2. It is not conclusive of the testamentary character of the instrument that the delivery of possession of property is post- poned till the death of the maker. In order to be a will the instrument must not only postpone delivery of the property till the death of the testator, but it can not even pass a present vested right to the enjopnent of the estate at the death of the testator. Thus, a grant by A to B and his heirs reserving a life estate to A is not a will, for it passes a present right in the estate, although the enjoyment thereof may be postponed to a future time, and that time is to be the death of A.^^ Even if A reserve in his deed a right of revocation thereafter it is still a deed and not a will, because 48 Watson V. Watson, 24 S. Car. 228 ; St. John's Parish v. Bostwick, 8 App. D. C. 452; Parker v. Ste- phens (Tex. Civ. App.), 39 S. W. 164; In re Ogle's Estate, 97 Wis. 56 ; 72 N. W. 389 ; Lauck v. Logan, 45 W. Va. 251 ; 31 S. E. 986. 49 Thompson v. Johnson, 19 Ala 59; Kelly v. Richardson, 100 Ala 584; 13 So. 785: Nichols v. Chand ler, 55 Ga. 369; Comer v. Comer 120 111. 420; Cates v. Cates, 135 Ind 272; Bcvins V. Phillips, 6 Kan. App 324; Miller v. Holt, 68 Mo. 584 Townsend v. Rackham, 143 X. Y, 516; Meck's Appeal, 97 Pa. St. 313 In re Kisecket's Estate, 190 Pa. St 476; 42 Atl. 886; Watson v. Wat- son, 24 S. Car. 228; Armstrong v, Armstrong, 4 Baxt. (Tenn.) 357 Roberts v. Coleman, 37 W. Va. 143 "The essential characteristic of an instrument testamentary in its nature is, that it operates only upon and by reason of the death of the maker. Up to that time it is ambulatory. By its execution the maker has parted with no rights and divested himself of no modi- cum of his estate, and fer contra no rights have accrued and no estate has vested in any other person. The death of the maker establishes for the first time the character of the instrument. It at once ceases to be ambulatory and acquires a fixed status and operates as a conveyance of title. Its admission to probate is merely a judicial declaration of that status." Nichols v. Emery, 109 Cal. 323. LAW OF WILLS. 47 the right, though voidahle, is nevertheless vested until it is avoided.^*^ Where the maker of the instrument clearly intends that no interest shall pass thereunder until his death the instrument is inherently testamentary in its nature. So where a woman, who was dangerously ill and not expected to live more than a few hours, executed the following instru- ment: ''It is my desire that the amounts herein may be dis- tributed as follows : to be paid from the rents as soon as the rents can be collected," it was held that in view of all the surrounding facts the lower court was justified in finding that this instrument was the last will and testament of the decedent and not the expression of an intention to make a gift inter vivos.^^ So where testatrix wrote that she had "this day" given all her property to certain specified persons, resen-ing the use during her life, such persons to have the full use of it after her death, and she kept this paper for nearly ten years in her bible, and gave instructions just before her death that the paper should be read to her and then put away in a safe place, it was 50 PresidcHt, etc. of Bowdoin Col- lege V. Merritt, 75 Fed. 480; Daniel V. Hill, 52 Ala. 430 ; Nichols v. Em- ery, 109 Cal. 323. Apparently contra, Milnes v. Foden, L. R. 15 P. & D. 105. But in this last case a woman about to marry settled her property in such trusts as she might thereafter, by will or revocable deed, appoint. Subsequently, in 1884, she made ar will which did not expressly include such property. In 1887 and 1889 she executed two revocable deeds- poll, to take effect on her death. Under these facts therefore, Milnea V. Foden is distinguishable from President, etc., of Bowdoin College V. Merritt, supra, where the deed took effect at once, though posses- sion was postponed till the donor's death. In Milnes v. Foden the court said: "if there is proof either in the paper itself or from clear evi- dence dehors, first, that it was the intention of the writer of the paper to convey the benefits by the instru- ment which would be conveyed by it if considered as a will ; secondly, that death was the event which was to give effect to it, then, what- soever its form, it may be admitted to probate as testamentary"; and in Stroup V. Stroup, 140 Ind. 179, a trust deed by A to A's use for life, on his death to B's use, reserving power of sale and revocation to A, was held tp be a will. 51 Smith v. Holden, 58 Kan. 535; 50 Pac. 447 ; Conrad v. Douglass, 59 Minn. 498. 48 3LA\V OF WILLS. held to be a will, even tlioiigh words of the present tense were 1ised.^^ In a recent Illinois case a gift, by a mother to her daughter^ of all her property was held testamentary in character when made shortly before her death and in anticipation of support for the rest of her life.^''^ On the other hand, a declaration that specified property was a j)resent to a person named in such declaration is not a will where it appears from the declaration that the title to the prop- erty was to pass before the death of testatrix.^'* Putting the former statement in a converee form, if the in- strument is clearly a will it does not pass a vested interest. For example, a husband and wife made a will devising land to their son and daughter, in pursuance of a promise from their children to support them. The son took possession of the land at once. It was held that these facts gave him no estate in the land.^^ §50. r.evocability. The idea of revocability is an essential idea of a will and follows almost as a corollary from the idea that the will passes no present interest in the property devised or bequeathed. Such property still belongs to the original o^vner. He has parted with no interest in it whatever by making the will. He can still sell the property or exchange it, or pledge it or give it away. Furthermore, he may revoke the will already made and make a new will, or die intestate, as he pleases.^^ So essential a feature of a will is revocability that the inser- tion, in an instrument which is clearly a will, of a clause pro- viding that it is not to be revoked has no effect whatever in 52Kisecker's Estate, inO Pa. St. 55 Andrews v. Andrews, 122 N. C. 476. ,352: 29 S. Ji. 351. G3 Whiton V. Whiton, 179 111. 32. =6 See Chapter XIV, Revocation. 54 In re Smith, L. R. 4.5 Ch. D. 632: Reed v. Hazelton, 37 Kan. 321. LAW OF WILLS. ■*• preventing revocation." Tliis quality of the will is what is meant when it is said that the will is ambulatory.^** If the instrument executed is such that the maker can not revoke it, it may be a deed or a contract, but it can not be a will, ibid on the other hand, if the instrument is a will, it is rev- ocable.^^ §51. Instruments lacking some inherent elements. An instrument which unites the elements included and just discussed under the heads of "Animus Testandi" and "Revo- cability" is a will as far as the inherent elements are con- cerned. An instrument which possesses any nmnber of these elements less than all is not a will The following discussion is of the distinction between wills and other instruments with which they may be confused. A will may be confused with a deed, a contract, an order, a power of attorney or other instnmient. In cases of doubt the application of the tests of animus testandi and revocability will determine whether the instrument under consideration is a will or not.^^ §52. Confusion between deeds and wills.— Instruments held deeds. An instrument in form a warranty deed, but containing a clause, 'This paper to be in full force till T desire to act" or "to alt.," passes a present estate, though with a possible right of revocation, and is a covenant, to stand seized to uses, i. e., a deed.®^ In another case an instrument, in form a warranty deed, 57 Wilkes V. Burns, 60 Md. 64. is to act not only on the property 58 This is the meaning which the owned by the testator at the time of weight of authority attaches to the its execution, but also on that ac- word ambulatory. Bouvier's Law quired by him subsequently thereto. Dictionary; Jarman on Wills (Oth 59 Hazelton y. Reed, 46 Kan. 73. ed ) p IS In Pollock and Mait- eo See Sees. 52 to 57. inclusiye. land's History of the Common Law, «i Watson y. Wataon. 24 S. Car. Vol. IT, p. 313. the word amhula- 228. toTV is said to mean that the will 50 LAW OF WILLS. contained a clause: ^'Conditions of this deed is suck as said party of the second part that this land shall not be incumbered in any way, or this deed shall be void. The party of the first part is to hold said property his lifetime." This was held a deed.^^ Where the grantor deeded his estate in trust, reserving a life estate to himself, and also reserving the power of revoking the trust deed as to some of the objects of the trust, for fifteen years, it was held a deed.^* 62 Gates V. Gates, 135 Ind. 272; Bevins v. Phillips, 6 Kan. App. 324 ; 51 Pac. 59. Instruments containing similar provisions are held to be deeds in Rawlings v. McRoberts, 95 Ky. 346; Garpenter v. Hannig (Tex. Giv. App.), 34 S. W. 774; Leslie v. McKinney (Tex. Giv. App.), 38 S. W. 378 ; Guthrie v. Guthrie, 105 Ga. 86; Worley v. Daniel, 90 Ga. 650; Simon v. Wildt, 84 Ky. 157 ; Sharp v. Hall, 86 Ala. 110. (A provision in an ambiguous instrument that it was in part intended "to do away with all need or necessity of taking out letters of administration" was held to be important in determining its nature.) Beebe v. McKenzie, 19 Ore. 296; Brown v. Moore, 26 S. Gar. 1 60 ; Ghavez v. Chavez ( Tex. ) , 13 S. W. 1018; McOnie v. Whyte, L. R. 15 App. Gas. 156; White v. Hopkins, 80 Ga. 154; Owen v. Smith, 91 Ga. 564; Goff v. Daven- port, 96 Ga. 423; Ward v. Ward (Ky.), 48 S. W. 411; 20 Ky. L. R. 986. 63 President, etc. of Bowdoin Col- lege V. Merritt, 75 Fed. 480. Simi- lar views are expressed in Stewart T. Stewart, 5 Conn. 316; Hall v. Bragg. 28 Ga. 330; Ritter's Ap- peal, 59 Pa. St. 9; Millican v. Mil- lican, 24 Tex. 426 ; Kelly v. Parker, 181 111. 49; Spencer v. Bobbins, 106 Ind. 580; Gates v. Gates, 135 Ind. 272. In this case it was said that an instrument which does not pass any interest until after the death of the maker is a will ; citing Nich- ols V. Emery (Cal.), 41 Pac. 1089; Craven v. Winter, 38 lo. 471; Spen- cer V. Bobbins, 106 Ind. 580; 5 N. E. 726; Kopp V. Gunther, 95 Cal. 63 ; 30 Pac. 601 ; Diefendorf v. Dief- endorf, 1.32 N. Y. 100; 30 N. E. 375; Chrisman v. Wyatt, 7 Tex. Giv. App. 40; 26 S. W. 759; Jenk- ins V. Adcock, 5 Tex. Civ. App. 466; 27 S. W. 21; Bunch v. Nicks, 50 Ark. 367; 7 S. W. 563; Bromley v. Mitchell, 15.5 Mass. 509; 30 N. E. 83; Moury v, Heney, 86 Cal. 471; 25 Pac. 17; Book V. Book, 104 Pa. St. 240 ; Mc- Guire v. Bank. 42 Ala. 589 ; Hall v, Burkham, 59 Ala. 349; Owen v. Smith, 91 Ga. 564; 18 S. E. 527. In this case the court quoted the fol- lowing: "A will recognized by this court, which seems to have the united support of the authorities, furnishes an unerring test to deter- mine the character of the instru- ment. It is this : If the instrument passes a present interest, although the right to its possession and en- jo;sTnent may not occur till some fu- ture time, it is a deed or a contract; but if the instrument does not pass an interest or right till the death of the maker it is a will or testa- mentary paper. University v. Bar- rett. 22 To. 60 : Craven v. Winter, LAW OF WILLS. 51 If the deed has been delivered either to the grantee or in escrow, it is held in some states that it passes a present estate, even though it contains the words ''only to take effect at the death of the grantor," or their equivalent. Such words are held to be only the reservation of a life estate to the grantor, while the remainder passes to the grantee on delivery. In such states instruments of this sort are held to be deeds, not wills.^^ The fact that an instrument which was intended to pass title on delivery was never delivered is no reason for regarding it as a will.^^ j53. Confusion between deeds and wills, wills. -Instruments held Where, on the other hand, testator's intention is manifest from the whole instrument that it shall not take effect until the death of the maker and shall not pass any property right 38 lo. 471." Other cases on this point are Boling v. Boling, 22 Ala. 82G ; Kaufman v. Ehrlich, 94 Ga. 159; Ward v. Ward (Ky.), 48 S. W. 411; Knowlson v. Fleming, 1G5 Pa. St. 10; Wilson v. Anderson, 186 Pa. St. 531 ; 142 Pa. St. 149. Contra, Sti'oup v. Stroup, 140 Ind. 179. 61 Kelly V. Parker, 181 111. 49 Shaekleton v. Sebree, 86 111. 616 Harshbarger v. Carroll, 163 111. 636 Latimer v. Latimer, 174 111. 418 citing Vinson v. Vinson, 4 111. App 138; Calef v. Parsons, 48 111. App 253; Golding v. Golding, 24 Ala 122; Elmore v. Mustin. 28 Ala 309; Gilliam v. Miistin. 42 Ala 365; Bryan v. Bradley, 16 Conn 474 ; dimming v. dimming, 3 Ga 460; Wall v. Wall, .30 Miss. 91 Bowler v. Bowler, 176 111. 541 (These Illinois cases distingui.sh or ignore the dictum in Massey v. Hun- t'ington, 118 IlL 80.) Wilson v. Carrico, 140 Ind. 533, citing Owens V. Williams, 114 Ind. 179; Bunch V. Nicks, 50 Ark. 367; Wyman v. Brown, 50 Me. 139; Abbott v. Holloway, 72 Me. 298; Stout v. Rayle, 146 Ind. 379; Kelley v. Shi- nier, 152 Ind. 290; Matthews v. Moses, 21 Tex. Civ. App. 494; Bill- ings V. Warren, 21 Tex. Civ. App 77; Ogle's Estate, 97 Wis. 56; Rob- inson V. Ingram (N. Car.) (1900), ■35 S. E. 612; Lauck v. Logan, 45 W. Va.. 251; Love v. Blauw (Kan.) (1900), 59 Pac. 1059, reversing 57 Pac. 258. On this point the au- thorities are in conflict. See for contrary authorities the cases cited in the preceding note, and Pinkham v. Pinkham, 55 Neb. 729. en .Johnson v. Johnson, 103 Tenn. .32, 52 S. W. 814. 52 LAW OF WILLS. till that time it is held to be inherently a will, no matter what outward form it may assume.*^^ Thus, where the maker ex- ecuted the following instrument: ''Know all men by these presents that I, Joseph Robinson, for the consideration of one dollar to me in hand paid, as well as my affection, do hereby assign and set over to my daughter, Elizabeth Jane Brewster, all of my property, both personal and real, to have the same after my death. Attest : his J. S. PosT^ Joseph ^ Robinson^ E. McClellax, mark," such instrument was held to be a will.^^ So where the instrument recited that the grantor did "hereby give, convey and confirm unto my said wife and her heirs in absolute right all my entire estate, real and personal and all manner of property I now or may hereafter own . . . reserv- ing a life estate and enjoyment of said property to myself and for the payment of all my just debts ; this deed of gift to take effect absolutely at my death and to be valid and conclusive," such instrument never having been delivered, and showing that it was not to go into effect till the maker's death, was held to be a will.^^ 66 Mosser v. Mosser, 32 Ala. 551 ; 301 ; Dunn v. Bank, 2 Ala. 152 Walker v. Jones, 23 Ala. 448; Lea- Trawick v. Davis, 85 Ala. 342 ver V. Ganss, 62 lo. 314; Pinkham Griffith v. Marsh, 86 Ala. 302 V. Pinkham, 55 Neb. 729; Turner Sharp v. Hall, 86 Ala. 110; El- V. Scott, 51 Pa. St. 126; Naugher more v. Mustin, 28 Ala. 304; Gill- V. Patterson, Tex. Civ. App. 28 S. ham v. Mustin, 42 Ala. 305. A sim- W. 582; Wren v. CoflFey, 26 S. W. ilar case is Williams v. Tolbert, 60 42; Hester v. Young, 2 Kelly (Ga.) Ga. 127, citing Daniel v. Veal, 32 31: Kinaid v. Kinaid, 1 Speer Eq. Ga. 589: Bass v. Bass, 52 Ga. 531,. 250; Milliean v. Millican, 24 Tex. and distinguishing Nichols v. Chand- 420. ler, 55 Ga. 309. So are Barnes v. 67Rol)inson v. Brewster, 140 111. Stephens, 107 Ga. 430; 33 S. E. 649. 399; Dye v. Dye. 108 Ga. 741: De 6^ Crocker v. Smith, 94 Ala. 295, Bajligethy v. Johnson (Tex. Civ. citing Jordan v. Jordan, 65 Ala. App.) (1900), 50 S. W. 95. CO LAW OF WILLS. An instrument, which was a deed in usual form, except for a clause providing "in no event is this instrument to go into effect till my death," was held to be a will.*^'^ In another case the instrument was dra^^^l in the form of a warranty deed, except that it provided that upon the death of the maker "this conveyance to he delivered to the sanl Eliza- beth Kellev.'^ The maker kept it in his control until his deatli. In view of the fact that it clearly appeared his inten- tion that the instrument should not take effect until his death, it was held to be a will."^" Another instrument was in the usual form of a warranty deed except for the addition of the clause: "also one half of all mv personal property and money left at my death shall go to the above Elizabeth Ann." The evidence showed, and the circuit court found as a fact that this instrument was never delivered, and that the maker intended it to take effect at his death and not before. Held by the supreme court to be a will. So where an instrument recited that "We do give and be- queath all our real and personal property of which we die possessed or seized" to certain beneficiaries, such instrument was held testamentary in its nature.'^ 60 Donald v. Nesbit, 89 Ga. 200, Of course this docs not mean that citing and following Bright v. Ad- the instrument is always vahd be^ ams5lGa. 239. Similar cases are cause it is testamentary. In many Turner v. Scott, 51 -Pa. St. 12G; of the cases cited there was some Stroup V. Stroup, 140. Ind. 179, but defect in the formal requisites of the an instrument almost identical in will, which made the instrument in- form was held a deed in Seals v. operative for the very reason that Pierce, 83 Ga. 787. it was testamentary. In this case of 70 Kelly V. Richardson, 100 Ala. Poore v. Poore, for instance, the 584 citin- Kyle v. Perdue, 87 Ala. instrument was not properly wit- ^23 ° ncssed, and hence, though testamen- ' 7i'/„, re Lautenshlager, 80 Mich. ' tary, was not a valid will. Similar 285, citing Bidev v. Sou vey, 45 Mich. instruments were he d to be wills 370; Morrell'v. Dickey, 1 Johns Ch. in In re Goods of Shnn, L. R. 15 153 ; Baylev v. Bailey, 5 Cush. 245 ; Prob. Div. 1.56 : Brewer v. Bax er Gage V. Gage, 12 N. H. 371; Frew 41 Ga. 212; Roth v. Micha lis 125 V. Clarke, 80 Pa. St. 170. To the 111. 325; Stevenson - Huddleson, same effect is Smith v. Holden. 58 13 B. Mon. (Ky.^ 299; Gage v Kan. 535 Gaire, 12 N. H. 371; Watkins 72'poore V. Poore, 55 Kan. 687. Dean, 10 Yerg. (Tenn.) 321. 54 LAW OF WILLS. Testator's intention that the instrument shall not take effect until his death is often shown from expressions in his will referring to his death as the event which was to make his dis- positions of property effective. Thus, an instrument reciting 'Tf I do not live to be 21 years of age, I give, etc.," was held to be a will.'^^ As was an instrument -in the form of a deed to take effect only "if I should die or be killed in this war.'''''^ So, also, a trust deed of property in trust to support grantor and pay the residue of the fund to grantor's children one year after his death was held to be a will."^^ A trust deed to grantor's use for his life and on his death to another, reserving power of revocation and sale to grantor, was held a will.'^^ And a revocable trust deed appointing trusts to take effect upon the death of the grantor is held to be a will.'^''^ In a case which is in some respects a departure from the usual rule, a deed-poll, which was witnessed by two witnesses, was admitted to probate as the last will of testatrix: upon ex- trinsic evidence that she wished it to oj^erate as her will.'^^ And a deed in form which was never delivered but concerning which the maker of the instrument said that he told his children "I wanted them to have the home farm if I dropped off or any- thing happened" was held to be a will, and not a deed. Like other cases holding similar instruments to be wills, this last point was not necessary to the decision of the case, as the real holding was that the attempted conveyance, being without con- sideration and not delivered, was not valid as against the cred- itors of the grantor.''^^ 73 Daniel v. Hill, 52 Ala. 430. tt Milnes v. Foden, L. R. 15 P. 74Gillham v. Mustin, 42 Ala. D. 105. 365. "8 In re Slinn, L. R. 15 P. D. 156. 75 Frederick's Appeal, 52 Pa. St. 79 Blackman v. Preston, 123 HI. 338. 381. 7G Stroiip V. Stroup, 140 Ind. 179. For contrary authorities see Sec. .52. LAW OF WILLS. 55 §54. Confusion between wills and contracts — Instruments held contracts. In detennining whether an instrument in doubt is a will or a contract, the same test applies as in the case of confusion between wills and deeds. The test is not the time of per- formance, but the time at which by the terms of the instrmnent a property right under the instrument attaches. If by the terms of the instrument no property right is to attach under it until testator's death, the instrument is a will ; but if a prop- erty right attaches during testator's lifetime, the instrument is a contract, even though the time of performance may be post- poned till the death of testator. Thus, an instrument in the following form: ''One day after my death I promise to pay to the order of K'ancy M. Jones two thousand dollars to be paid out of my estate. For value received without any relief from valuation or appraisement laws with 6 percent interest from date and attorney's fees" created a present liability, and hence was held to be a contract, not a will.^^ In another case, where a similar instnmient was under con- sideration, the court held it to be at least prima facie a contract, saying: "Its obligatory character did not depend on her (the maker's) death, but only the provision for its discharge." ^^ And where a creditor took a note with interest payable annually during her life, interest to cease at her death, and principal never to be due, it was held a transfer of the amount owed and not testamentary.^^ If an instrument possesses all the elements of a contract, the fact that the time of performance is fixed at testator's death, or within a given time thereafter, does not make it a will.^""' 80 Price V. Jones, 105 Ind. 543. St. 477 ; Miller v. College, 177 111. 81 Kirkpatrick v. Pvle, 6 Houst. 280; 42 L. 11. A. 797. (Del.) 569. ' 83 Miller v. College, 177 111. 280: 82Hinkle v. Landis, 131 Pa. St. 42 L. R. A. 797, alTivminp: 71 111. 573. Other cases of like nature are App. ,587; Hescman v. Moon, 131 Crider v. Shelby, 95 Fed. Rep. 212; N. Y. 402; Wolfe v. Wilsey, 2 Ind. McKinnon v. McKinnon, 5G Fed. App. 549; Krell v. Codman, 154 409; In re Sunday's Estate, 167 Pa. Mass. 454; Kirkpatrick v. Pyle, 6 St. 30; Zn re Maul's Estate, 186 Pa. Houst. (Del.) 5C9. 56 LAW OF WILLS. §55. Confusion between wills and contracts. — Instruments held wills. In accordance with the principles laid dowTi an instrument may be valid as a will, although it is drawn in the form of a contract, if it possesses the inherent elements of a will ; that is, in distinction from a contract, that bv its terms the inten- tion of the maker appears that no interest shall attach under such instrument until the death of the maker.^'* An instrument was delivered as follows : Md., Sept. 4, 1884. "At mj death my estate or my executor pay to July Ann Cover three thousand dollars. [Seal.] David Eintgel."' There was but one witness to this instrument. It will be noticed that there M^as no promise to pay and no recital of a consideration. Held testamentary in its nature.*^^ Where the donor transferred certain property gratuitously by a deed .and a bill of sale, it being understood that if donor died under an impending surgical operation the property should be distributed by the holders thereof in accordance with a writ- ten but unsigned memorandum for such distribution, which accompanied the said deed and bill of sale ; but that if donor should recover from the operation the property should not vest, such a disposition was held to be testamentarv in its nature.^*' 84 In an early English case an in- -witnesses at the date of the instrn- strument was held to be a will, ment. See also obiter in Simon v. though in the following form: "By Wildt, 84 Ky. 157, where the in- tliis deed I bind myself to give to struraent purported to be "a con- my wife, either on the death of her tract and will," and the court said mother or on the sale of the York- '"if it appears that the maker did shire estate," certain property. "I not intend it to be operative until do, therefore, hereby ordain that his death, it will be a will. A sini- my executors, etc., consider that ilar case, excejit that under the laws deed as the most solemn obligation, of Pennsylvania tlie will was exe- in confirmation of which I set my cuted in legal form, is Frew v. hand and seal." Coop v. Coop in Clarke, 80 Pa. St. 170. note to Thorald v. Thorald, 1 Ecc. so Knight v. Tripp. 121 Cal. 671, Rep. 15. 49 Pac. 838. As testamentary, it wag 85 CoA-er V. Stem, 67 Md. 449. invalid, as not having the formali- Since it was testamentary it was of ties required by law. no validity, as the law required two LAW OF WILLS, "• An instrument which provides that if a certain orphan, a member of the family of the person executing the instrument, survives the latter, he shall receive a certain sum, is a will, and not a contract.^'^ So was the following instrument : ''Due at my death to U. J . the sum of two thousand five hmidred dollars from the general fund of my estate as a gift." ^^ Bonds executed and kept under the control of the maker t^ be delivered at his death are testamentary ,8° and an instrument evidently testamentary in its nature was held to be a will, even though it began ''I agree to will."^° An instrument which set forth that the maker intended to give a certain property ''to support her if she should be the longest lived, say $300 and notes now due her; and it is dis- tinctly understood that this obligation is not to be sold, nor assigned, nor no attempt to collect it in my lifetime, without mv consent," and which was supplemented by two provisions -I now add $50 more," and "I now add $100 more," was held to be testamentary.^! But an instrument somewhat similar m form but which does not show an intent to take effect only upon the death of the maker has been held not to be a will.^" ^^ An instrument may be in part a will and in part a contract. §56. Confusion between wills and orders. In case of doubt whether an instrument in the fonn of an order or a note of instructions to third persons is not really a will, the test is the same as in the case of deeds and contracts. If the interest created is tx) begin as a vested interest during testator's lifetime, the instrument is an order, even if the beneficial results of such interests are postponed until the death of the maker; but if the interest .thereby created is not to begin till the death of the maker, the instrument is a will. on \Tr, 1^ S \V .550. Ill is instrument was sTSwann v. Hoiisman, 90 Va. .^> ^. u • •))"• .•^„" K^ u^ endorsed as an "obligation by its 816. 88 Johnson V. Yancey, 20 Ga. 707. maker. 89Carev v. Dennis. 13 Md. 1. ^^ Scott's Estate (Cal.) (1000), 9oLonger's Estate, 108 lo. 34; 60 Pac. 627. 78 N W 834. 93 Reed v. Hazclton, 3/ Kan. .321. 91 Pelley V. Earles (Ky.). (1900^ 58 LAW OF WILIS. The owner of some government bonds wrote to the bankers who had such bonds in custody: "Gents: of the 7^^ govern- ment bonds of mine in your hands, I hereby assign to my wife H. C. $6,000, she to draw the interest of the same, you keeping possession of the same . . . My wife to draw the interest till her death, to have no control of the principal so far as dis- posing of them is concerned — the bonds at her death to revert to my heirs. The above assignment to take effect at my death, I controlling them in the meantime." This letter was signed by the writer. It was held to be testamentary in its nature, as it was not to go into effect till the writer's death; hence it needed the statutory formalities to be valid.^'* In another case the holder of a benefit certificate indorsed upon the certificate a statement that at her death her claim should go to her two children named therein, or to a certain person as executrix for said children. This instrument was held to be testamentary in character, and hence defective, as lacking statutory formalities.^^ So a depositor in a savings bank had a right under the by- laws of the bank to enter upon the bank-book the name of the "person or persons to whom, in event of her absence or death, the money shall be paid if not otherwise disposed of." She told the ofiicer of the bank to enter the name of Mary Rem- ington under such heading ; he did so, and with another of the bank officials witnessed the appointment in writing. It was held that this act was in its nature testamentary, therefore invalid since the depositor did not sign the appointment.^^ Or a depositor may deposit in the savings bank in the name of himself and some other person or the survivor of them. The 9-1 Comer v. Comer, 120 111. 420. 96 Remington v. Bank, 76 Md. 95 Grand Fountain of U. C, etc., 546. Similar cases are Knight v. V. Wilson. 96 Va. 594; 32 S. E. 48 Tripp, 121 Cal. 674; Murdock v. So in an assignment of a life insur- Bridges, 91 Me. 124; Flanagan v. ance policy to take effect after the Nash, 185 Pa. St. 41. death of assignor. Schad's Appeal, 88 Pa. St. 111. XAW OF WILLS. 59 courts do not agree as to whether such an act is testamentary or not.^^ On principle it is hard to see wherein it is properly testa- mentary, if a present interest in the fund vests on deposit, and the fund is subject to the order of either or of both. Un- doubtedly an attempt to keep full control of the fund in the lifetime of the owner, indicating only to whom the balance remaining at his death should be paid, is testamentary; but the two cases are distinguishable. A transfer of a bond to one for life, and on his death to an- other, which passes a present vested interest is not testamen- tary in its nature.^ ^ §57. "Will in form of power of attorney. An instrument drawn in the form of a power of attorney appointing an executor is testamentary in character.^^ §58. Informal wills. The foregoing list of writings with which a will may be con- fused is not exclusive. A will may assume the outward form of anv instrument. This topic was formerly more important 9 7 In Norway Savings Bank v. Meniam, 88 Me. 146, 33 Atl. 840, such a disposition was treated as testamentary, and therefore invalid unless executed with the formalities required by the Wills Act, citing Augusta Savings Bank v. Fogg, 82 Me. 538; Sherman v. New Bedford Savings Bank, 138 Mass, 581; Smith V. Speer, 34 N. J. Eq. 336; Towle V. Wood, 60 N. H. 434. In Metropolitan Savings Bank v. Mur- phy, 82 Md. 314, a similar deposit was held not to be testamentary in its nature, but a valid contract analagous to an equitable assign- ment, distinguishing Dougherty v. Moore, 71 Md. 248. 98 Martin v. Martin, 170 111. 639. 9» Tusch V. Savings Bank, 48 N. Y. Supp. 221; Rose v. Quick, 30 Pa. St. 225. Other cases distinguish- ing a will from other instruments are: Mosser v. Mosser, 32 Ala. 551; In re Skerret's Estate, 67 Cal. 585 ; Seals V. Pierce, 83 Ga. 787; Mas- sey v. Huntington, 118 111. 80; Cas- tor V. Jones, 86 Ind. 289; Leathers V. Greenacre, 53 Me. 561; Edwards V. Smith, 35 Miss. 197; Towle v. Wood, 60 N. H. 434 ; Lines v. Lines, 142 Pa. St. 149 ; Frew v. Clarke, 80 Pa. St. 170; Babb v. Harrison, 9 Rich. Eq. (S. Car.) Ill; Watkins V. Dean, 10 Yerg. (Tenn.) 321; Reagan v. Stanley, 11 Lea. (Tenn.) 316. 60 LAW OF WILLS. than it is now, as the old law required Lut little extrinsic for- mality in testaments passing personal property. This was the law in England prior to 1837. It was often difficult to deter- mine whether a writing was a will, or merely an expression of a present intention to make a will in the future. At mod- ern law, by statute, a will to he valid -must have certain ex- trinsic formalities, such as a signature and attestation by wit- nesses. Unless a paper possess these formalities, it is not now a practical question in the law of wills whether it is testamen- tary or not. There are certain jurisdictions, however, that do not require these formalities.^ ^° Among them are Pennsyl- vania, where the attestation by witnesses need not appear upon the paper, and such jurisdictions as California, where the holographic will is recognized, that is, the will in the hand- writing of the testator, which, under the statutes of certain states, needs no witnesses. In such jurisdictions it is still important to distinguish between the will and the expression of intention to make a certain will thereafter. The rule is that no set form of expression is required. All that is necessary to make an instrument testamentary is that it should show, when read in connection with surrounding facts and circumstances, a testamentary intention. A discussion of particular examples of the distinction be- tween the informal will and the expression of an intention to make a will in the future properly belongs under the head of "Construction," but will be dealt with here to save repetition in a subsequent chapter. A deed of property had never been delivered, and a letter from the grajitor to the grantee contained a reference to the deed : "We all know that life is uncertain and we don't know the moment that we may be called away. . . I therefore want you to know that you are provided for under any cir- cumstances." This was held to be testamentary and therefore valid as a holographic will.^°^ The following was written on the back of a business letter: 100 See Chap. XTTI. Xuncupativ<» loi Skerrctt's Estate, 67 Cal. 585. and Holographic Wills. LAW OF WILLS. "^ "Ann, after my death you are to have forty thousand dollars ; this you are to have will or no will; take care of this until my death." It was directed ''To Eliza Ann Byers." It was held to be testamentary^ and, as it complied with the statutes then in force in Maryland, a valid will.^^^ The following indorsement on a promissory note was made by payee : "If I am not living at the time this note is paid, I order'the contents to be paid to X." This was held to be a testamentary instrument.^ *^^ An envelope was indorsed, "Dear Bella, this is for you to open." Inside was a promissory note for two thousand dollars and this paper: "Lewiston Oct. 2, 1879. My wish is for you to draw this 2,000 for your use should I die sudden. Eliz- abeth Fosselman." This was held to be a will.^*^^ The following writing: "High James Kogers do give to John Jackson, Sr. my property known as penargyle Hotel and the land adjoining in Penargyle ^Northampton County Pa. James Kogers," was written by Kogers shortly before his death and placed in an envelope addressed to John Jackson. It was held to be a will.^"^ So the following informal instrument was held to be a will • "March the 4 will my Properti to my wief my death John Sul- livan." i«« A memorandum on the back of a gas bill began : "It is my wish," then followed a list of names, and after each name a schedule of property. This was held to be a valid w-:il. it being possible to identify the persons and the property.^''"' So entries in a diary may amount to a will.^*^* An instrument which describes a tract of land and provide? 102 Byers v. Hoppe, 61 Md. 20G ; mo Sullivan's Estate, 130 Pa. St. 48 Am. Rep. 89. •'542. 103 Hunt V. Hunt, 4 N. H. 434. i"t In re Gaston's Estate, 188 Pa. lo-t Fosselman v. Elder, 98 i'a. St. 374. g|. jgg 108 Keagaji v. Stanley, 11 Lea. 313. 105 Fozer v. Jackson, 164 Pa. St. 373. 62 LAW OF WILLS. "I have requested my executors to give a clear deed for tke property after my death" to A, was held a valid will.^^^ A letter may be a valid will, if it shows a present intent to dispose of the property of the writer at his death.^^" But an acknowledgment of a claim, while it may Le valid as evidence of such claim, is not a will.-^^^ Thus a letter containing the following: "You can put in your claim against my estate for $500 which I hereby acknowledge owing you," was held not to be testamentary in its nature.^ ^^ And a letter not written in contemplation of death which contained these words : "My health is probably ruined and I want to anticipate possibilities. You and your children get everything," was held not to be testamentary, but simply a statement as to the sort of will that the writer intended to make.-^^^ §59. Precatory words. Since a testator is not obliged to use any set form of words, it follows that he may put his intention in the form of a request or a recommendation. x\s long as it is a statement in legal form of his wish concerning the disposition of his property, the appointment of an executor of his estate or a guardian of 109 Webster v. Lowe (Ky.) Cowley v. Knapp, 42 N. J. L. 297; (1899), 53 S. W. 1030. Compare Knox's Estate, 131 Pa. St. 220; Young's Estate, 123 Cal. 337, Scott's Estate, 147 Pa. St. 89; where there was no descrip- Fouche's Estate, 147 Pa. St. 395 ; tion of the property to be Reagan v. Stanley, 11 Lea. (Tenn.) conveyed, and such provision 316. failed. Other cases on this point are no Cowley v. Knapp, 42 N. J. L. Mitchell V. Donahue, 100 Cal. 202; 297. Jackson v. Jackson, 6 Dana (Ky.) m O'Neil's Estate, 73 Minn. 266. 257; Kelliher v. Kernan, 60 Md. 112 O'Neil's Estate, 73 Minn. 266; 440; Leathers v. Greenacre, 53 Me. 76 N. W. 27. 56:".; Barney v. Hayes, 11 Mont. ns Kichardson's Estate, 94 Cal. 571; Belcher's Will, 66 N. Car. 03. See Sec. 48. 51; Brown v. Eaton, 91 N. Car. 26; LAW OF WILLS. 6o his children, it will be treated as his will. There is no dispute about this rule of law.'^'* There is, however considerable practical difficulty in deter- mining in a given case whether the words used are dispositive or merely precatory. This is a question of construction and is given here solely for convenience. The test is this : does the testator mean by his language to control the disposition of his property ? If so, it is his will, no matter how mildly the wish is expressed. Or does he simply indicate what he regards as a wise disposition, leaving however to the person taking the legal title to the property full discretion to dispose thereof. If so, it is not his will.^^^ Thus a statement "I wish X to have, etc.," is treated as a will;^-^^ while a statement that a certain instrument disposing of property was not intended "as a legal will but as a guide" shows that the instrument was not a will;^^'^ and a gift to A providing that she is to give B a cer- tain sum "at her Pleasure if (she) feel dispose to do so, but it is not obligatory," was held to leave the gift to B entirely in A's discretion. ^^^ Words which are milder than commands or positive dispo- sitions of testator's property are known as precatory words. This term is not an extremely technical one. Indeed, the word precatory is used quite impartially of words which though mild in form are held to be dispositive, and of words which are held not to be dispositive but to constitute suggestions merely to be ii-tCock V. Cooke, 1 Prob. & Div. tleppart, 83 lo. 497; Mitchell v 241; Abend v. Endowment Fund Mitchell, 143 Ind. 113; Hal Commission, 174 111. 96 affirming sey v. Convention of P. E 74 111. App. 054; Ingraham v. In- Church, 75 Md. 275; Aldrich v. Al graham, 169 111. 432; Black v. Her- _ drich, 172 Mass. 101; Durant v ring, 79 Md. 146; Murphy v. Car- Smith, 159 Mass. 229; Fairchild v, lin, 113 Mo. 112; Cox V.Wills, 49 N. Edson, 154 N. Y. 199; Whelen's J. Eq. 130, 573; Forster v. Winfield, Estate, 175 Pa. St. 23. 142 N. Y. 327; Knox's Appeal, 131 ne Cock v. Cook, L. R. 1 P. & D. Pa. St. 220; Oyster v. Knull, 137 241. /ji re Gaston's Estate, 188 Pa. Pa. St. 448. St. 374; 41 Atl. 529. 115 /?t re Williams 1897, 2 Ch. n'^ Ferguson-Davie v. Ferguson- Div. 12; In re Hamilton, 1895, 2 Ch. Davie, L. R. 15 P. & D. 109. Div. 370; 12 Rep. 355; Coulson v. us Eberhardt v. Parolin, 49 N. J. Alpaugh, 163 111. 298: Randall v. Eq. 570. Randall, 135 111. 398: Pellizzaro v. 6^: LAW OF WJLLS. carried out at the discretion of the person to whom thej are addressed.^ ^^ §60. Contingent wills. — What wills are included. The subject of contingent wills is one which might be classed under construction, as many of the cases involve the question whether the will is contingent or not; or under restraints on testamentary power, as many of the cases involve the ques- tion whether the law will permit such dispositions. But the question of testamentary intent is also involved. It is often a question whether under the circumstances the testator intended the instrument as a disposition of his property or not. This being the case, a fragmentary treatment of this subject, though perhaps more logical than the present method, seems so unsat- isfactory that at this point a discussion of contingent wills in detail is given. A will is said to be contingent when the testator has, in such will, named some future event as a condition precedent to his will's taking effect, or upon whose happening the will never can take effect.-^ ^" This contingency, furthermore, is one which relates to the whole will. A contingency which has effect only to defeat certain bequests is not of the sort that we are con- sidering here.-^^^ §61. Validity of contingent wills. The validity of conditional wills depends upon the time when the condition is to be performed. There are three periods of time designated by testators for this contingency to occur, which will be discussed in order, namely: (1) during testator's life, (2) after his death before probate, and (3) after probate. (1) If the condition is to be performed before the death of the testator, full effect is given to the condition, 119 For the subject of Precatory 121 For such contingencies see Words Creating Trusts see Sees. Chap. XXXI. 611, 612. ^20 Damon v. Damon, 8 Allen .(Mass.) 192. LAW OF WILLS. 65 and the will is treated as in force or not, according to the per- formance or non-performance of tlie condition.^ ^^ Thus a will made by A to be in force if she should die before B is held not to be A's will where A died before B.^^^ (2) Where the contingency occurs after the death of the tes- tator, but before probate, its validity seems to be established by the general rules of law, though the adjudicated cases are few. Thus a provision that a codicil to a will should go into effect on approval by testator's wife was given full effect, and as she declined to approve the codicil, it was refused probate.^ ^"^ (3) Where the contingency is delayed till after the pro- bate, the court can not declare the instrument to be the last will and testament of deceased, for that would ignore his in- tention, which plainly is that the instrument is to be his will only on the happening of the named event. Nor can the ques- tion of the validity of the will be postponed until the happen- ing of an event which may be delayed for years. The policy of our laws requires a prompt settlement of the estates of de- cedents. While the authorities on this point are few, they hold, in accordance with the views here stated, that if the will is not by its terms clearly and absolutely by the will of decedent when offered for probate, it should never be given effect.^ -"^ 122 in re Cuno, L. R. 43 Ch. D. wiiich were to be performed after 12; Tarver V. Tarver, 9 Pet. (U. S.) the death of testator and before 174; Dougherty v. Dougherty, 4 ))robate, upon which the validity of Met. (Ky.) 25; Likefield v. Like- the will depended, is found in the field, 82 Ky. 5&9 ; Magee v. McNeil, common law rule as- to the va- 41 Miss. 17; Robnett v. Ashlock, lidity of the will of a married 49 Mo. 171; Morrow's Appeal, 116 woman. The validity of such a will Pa. St. 440. - was contingent upon the consent 123 7,2, re Cuno, L. R. 43 Ch. D. of the husband which might be giv- 12. en or withhold at any time before 124 Dudley V. Weinhart, 93 (Ky.), probate. 402; 20 S. W. 308; 14 Ky. Law i2r, i Jarman on Wills. 17; Cxoods Rep. 434; Ingersoll's Estate, 167 Pa. of Cooper, Dea. and Sw. 9: Goods St. 536. An analogy to the rule of Smith, L. R. 1 P. & D. 717. allowing conditions to be imposed 66 LAW OF WILLS. §62. Examples of contingent wills. A question often presented in the discussion of this subject is, whether the language of a given will is conditional or whether, without imposing a condition, it recites the circum- stances which induce testator to make his will. This is another instance of construction, but is for convenience given here. It must be conceded at the outset that the courts are not harmoni- ous in their views of similar expressions used in different wills. English Cases. — Thus Hvhere the testator wrote "Should anything unfortunately happen to me while abroad, I wish, etc.," it was held to be a conditional will ; and as the testator had returned from abroad, the will was of no effect.^ ^^ So also, where the will contained the clause "If I die before I re- turn from Ireland." ^^"^ American Cases. — A testator wrote "I am going to town with my drill and am not feeling good, and in case I should not get back, etc." He went to town, became ill, was brought home and soon died. It was held that the will was conditional and hence avoided by the return of the testator.^ ^^ Where a Kentucky testator wrote "as I intend starting in a few days for the State of Missouri, and should anjiihing happen that I should not return alive," it was held a conditional will.^^^ So was a will made by a Missouri testator, "I this day start for Kentucky ; I may never get back. If it sliould be my misfor- tune, etc.,"^^*^ and a will "If I never get back home I leave you everything I have in the Avorld."^^^ 126 Goods of Porter, L. R. 2 P. & i30 Robnett v. Ashloek, 49 Mo. D. 22, and cases cited there. 171. 127 Parsons v. Lanoe, 1 Ves. Sr. i^i Maxwell v. Maxwell, 3 Met. 189;Amb. 557. (Ky.) 101; Likefield v. Likefield. 128 Morrow's Appeal, 116 Pa. St. 82 Ky. 589. 440. A similar case is Magee V. Me- ("If anything happens to me that Neil, 41 Miss. 17. I die away from home, my wife to 120 Dougherty v. Dougherty, 4 have everything.") Met. (Ky.) 25. 67 LAW OF WILLS. "• §63. Examples of wills held not contingent. In cases, many of which are closely analogous to those just cited, similar language has been held to be a statement of the reasons which induced testator to make his will. Hence these wills are valid even though the event spoken of has occurred in such a way that the will, if conditional, would be avoided. ^ English Cases.— A will contained the words : "Being physi- cally weak in health, have obtained permission to cease from all duty for a few days ... in the event of my death occurring during such time. . . ." It was held not to be a conditional will.^^2 So there was a similar holding where the will con- tained the words "in case of my death by the way"^=^^ or "in case of any fatal accident happening to mc, being about to travel by railway." ^^^ American Cases.— A will was held not to be conditional where it contained the words "Being about to take a long journey and knowing the uncertainty of life"; ^^^ or where it was expressed "Should anything happen to me before I reach St. Louis." ^^'^ The most extreme of the American cases is the following, in which a provision, "If I get dro^vned this morning, March 7, 1872, T bequeath, etc," was held not to be a condition, but a narration of the facts which led testator to make his will at that time.^^'^ §64. Contingency applying to only part of will. It sometimes happens that the coiitingency applies to one or more clauses of the will. They are to be valid or not according to the outcome of the event; the rest of the will is absolute. Thus a testator began his first bequest "First, if by casualty or otherwise I should lose my life during this voyage, I give," etc. 132 Goods of Martin, L. R. 1 P. & ^'^ Bx parte Lindsay, 2 Bradf. D 380 (N- ^-^ 204. 133 In re Mayd, 6 P. D. 17. "^ French v. French, 14 W. Va. 134 In re Dobson, L. R. 1 P. & D. 458. 88. 135 Tarver V. Tarver, 9 Pet. (U. S.) 174. 68 LAW OF WILLS. Tke subsequent bequests contained no mention of any condi- tions. It was held that the first bequest only was condi- tional.-^ ^'^ In such cases the will is, of course, unaffected as a whole by the failure of specific bequests.^ ^^ So the conditional appointment of an executor followed by an unconditional l3equest, leaves the bequest unaffected by the condition.-^ '*^ The courts prefer to construe a will as having contingent bequests rather than as being contingent as a whole.-^^^ 13S Damon v. Damon, 8 Allen 36; 66 L. J. P. D. & A. ; N. S. 29; (Mass.) 192. A similar case is 75 Law T. Rep. 520. Massie V. Griffin, 2 Met. (Ky.) 364. i-ii Damon v. Damon, 8 Allen 139 Damon v. Damon, 8 Allen (Mass.) 192; Ex parte Lindsay, 2 (Mass) 192. See Sec. 674. Bradf. (N. Y.) 204. "oHalford v. Halford [1897] P. AQ LAW OF WILLS. ""^ CHAPTER VI. JOINT AND MUTUAL WILLS. §65. Wills not included under this chapter. In order to define clearly the topic treated of in this chapter, it is necessary to begin with the negative proposition that cer- tain types of will must not be confused with joint and mutual wills (and are not duscussed in this chapter). Of these types which might be confused with joint and mutual wills, the most common are the following: 1. A will which is signed by some person in addition to testator, but which disposes only of the property of the testator, and expresses only his wishes, is neither a joint nor a mutual will. It differs in no way from an ordinary will of the common type, and the additional signature is treated as surplusage.^ 2. Where two or more testators prepare and execute separ- nle wills and do not in so doing act in pursuance of any contract existing between them such wills are neither joint wills nor mutual wills. The fact that the wills were executed at the same time and that the provisions of the wills show that the; i/n re Smith. L. R. 15 P. D. 2 ; sifinecl the will of the husband, Mosser v. Alosser, 32 Ala. 551 : Rog- below his signature, probably un- ers, Appellant, 11 Me. (2 Fairf.) der an erroneous view of the law, 303; Chaney v. Missionary Soc., 28 thinking such signature necessary Til. App. 621 ; Allen v. Allen, 28 to validate the instrument. So in Kan. 18 ; Smith v. Holden, 58 Kan. Byles v. Cox, 74 Law T. Rep. 222. a 535: 50 Pac. 447; Kunnen v. witness by inadvertence signed above Zurline, 2 C. S. C. R. (Ohio) testator. 440. In these cases the wife 70 LAW OF WILLS. testators had a common purpose and were inspired by similar motives will not make the wills joint or mutual. They wii7 be treated as the respective wills of the several testators.^ ^66. Wills included under this chapter. — Classification. The types of wills which are here discussed are compara tively easy to separate one from the other. The names of these tvpes are unfortunately not so clearly established. The courts have been in recent years comparatively harmonious in apply- ing principles of the law to these types of will, but they have not been harmonious in applying names to them. The simplest and crudest method of classifying wills oil this basis is as to outward form. If the common intention is expressed in one instrument which is signed and executed by both the testators, the will may be called a joint will :^ v/hile if the testators have executed two separate instruments to mani- fest their common intention, the will may be called a mutual will; ^ and if this common intention is that the propf j ty of the one dying first shall go to the survivor, it may be termed a mutual or reciprocal will.^ This classification is net adequate, as it is based purely on the form in which the testamentary intention may be expressed, but it is often adopted by the courts. As to the substance of these wills the following classifi- cation may be suggested : 1. The will by which the one dying first leaves his property to the survivor or survivors, whether this is done by one will executed by all the testators or by separate wills executed separately.® Some of the courts have termed this a double 2Edson V. Parsons, 155 N. Y. v. Schmidt, 44 Ala. 454; Lewis 555: 50 K E. 2G5 ; affirming 32 v. Scofield, 2G Conn. 4,52; Evans v. N. Y. S. 102fi; 85 Hun, 2G3. Smith, 28 Ga. 98; Black v. Rich- 3 In re Davis' Will, 120 N. Car. ards, 95 Ind. 184 ; In re Diez's Will, 9; 2G S. E. G36; Betts v. Harper, 50 N. Y. 88; March v. Huyter, 50 39 O. S. 639; Wyche v. Clapp, 43 Tex. 243. For case where inten- Texas 544. tion is expressed in separate wills. 4Edson V. Parsons, 155 N. Y. Edson v. Parsons, 155 N. Y. 555; 555, supra. 50 N. E. 2G5 ; affirming 32 N. Y. S. 5 7n re Diez's Will, 50 N. Y. 88; 103G; 85 Hnn, 263. The expres- March v. Iluyter, 50 Tex. 243. sion of judicial opinion in this case 8 For cases where intention is is undoubtedly an ohitei-, but a very expressed in one will. Schumaker clear and weighty obiter. LAW OF WILLS. 71 will," and other courts, wliilo applying the same legal princi- ples' refuse to recognize such will as even a mutual will, but prefer to style it the separate will of each.« When such an intention manifests itself in separate wills they are sometimes spoken of as concurrent or rc-ciprocal wills.'-^ 2 The will bv which the testators, in separate clauses, dis- pose of their several interests in the execution of a common intention.^ *^ . . 3 The will bv which the testators jointly devise their joint interests to third^persons or by which they treat their separate propertv as a common fund out of which they provide lor third persons. A will of this kind is often termed a ynnt will. 4 The will which is a composite of the foregoing types; that is, which provides in^part for third persons and m part provides for the survivor.^^ i . u f 5 The will which differs from the third class only m that it specifically directs that it shall not take eflect till the death of the survivor of the testators.^ ^ 7 Evans v. Smith, 28 Ga. 98 ; Caw- ley's Estate, 136 Pa. St. 628. In the latter case the will was as fol- lows : "I, A. B, should I be the first to die, and I, C. D., should I be the first to die, give, devise and be- queath, and to the survivor of either of us" all the estate of the decedent. 8ln Schumaker v. Schmidt, 44 Ala. 454 the will was as follows: "In event of the death of either one of us the survivor shall, after such death, pay all the expenses of sick- ness and burial and whatever ex- penses of the estate may be due by proof. Second, the survivor shall enter into the possession of the es- tate of the other and shall hold it for his own sole use and benefit." The court said: "The will under consideration, though made by two, is not a joint will because by its terms it can only be the will of him who dies first. Though classed un- der the general denomination of mu- tual wills, it is not in fact such. because by its terms it can be the will only of him who dies first. It is therefore the separate will of the first decedent." Similar views are expressed in Lewis v. Scofidd, 26 Conn. 452. Coleman's Estate, 185 Pa. St. 437; Gordon v. Whitlock, 92 Va. 723. 10 In re Davis' Will, 120 N. Car. 0; Appeal of Hodges, 26 S. E. 636. ( [n this case the exact facts do not appear on the record.) Ex parte Day, 1 Bradf. (N. Y.) 476. 11 hi re Raine, 1 Sw. & Tr. 144; Hill v. Harding, 92 Ky. 76; Keith v. Miller, 174 HI. 64; 51 N. E. 151: Bctts V. Harper, 39 O. S. 630: Wycho v. Clapp, 43 Tex. 544. 12 Bank v. Bliss, 67 Conn. 317 ; 35 Atl. 255; Black v. Richards. 95 Ind. 184. 13 Hershey v. Clark, 35 Ark. 1 1 : 37 Am. Rep. 1: Bank v. Bliss, 67 Conn. 317 ; 35 Atl. 255. 72 LAW OF WILLS. §67. Validity of joint and mutual wills. The early view of text-book ^vriters was that, as a general proposition, joint and mutiuil wills were alike invalid.^'* This view was based upon the language of some early English de- cisions,^^ and found justification in the early American de- cisions.^^ The only favor shown was to the type of will known as the mutual or reciprocal will.^'^ The early English cases which were invoked to support the doctrine of the invalidity of joint and mutual wills were Earl of Darlington v. Pulteny, 1 Cowp. 260, and Hobson v. Black- burn, 1 Add. 277. In each of these cases were obiter dicta, which undoubtedly seem to treat such wills as invalid, but which really have no such meaning when applied to the facts of the particular cases. In Earl of Darlington v. Pulteny. 1 Cowp. 260, the question was whether a power to two persons to limit an estate by deed could be executed by the will of the survivor. The court held that such a power could not so be executed, as the act was to be performed jointly, and it was not possible for a will to be joint in the sense that it took effect as to the wishes of each testator only at his death. Hobson v. Blackburn decided nothing more than that a mutual will might be revoked by either of the testators as to his o-wn estate by a later will. The modern view is that, as a general proposition, joint and mutual wills are valid.^^ 1* Williams on Executors, pp. 9, disposing of the estate of each to 104. her sister in case of her surviv- 15 Earl of Darlington v. Pulteny, ing her." 1 Cowp. 200 ; Hobson v. Blackburn, is Schumaker v. Schmidt, 44 Ala. 1 Add. 274; 2 Eccl. Rep. 116. 454; Lewis v. Scofield, 26 Conn. leClaj'ton v. Liverman, 2 Dev. & 4.52; Evans v. Smith, 28 Ga. 98; B. (N. Car.), 558; Walker v. Wal- Black v. Richards, 95 Ind. 184; ker, 14 O. S. 157; 82 Am. Dec. Breathitt v. Whittaker, 8 B. Mon. 474. (Ky.) 530; Hill v. Harding, 92 17 In Lewis v. Scofield, 26 Conn. Ky. 76; In re Davis's Will, 120 N. 452, the court said: Car. 9; In re Diez's Will, 50 N. Y. "Although in point of form it is 88; Ex parte Day, 1 Bradf. (N. a joint will, executed by two, yet Y. ) 476; Betts v. Harper, 39 O. S. as it disposes only of the estate of 641 ; Cawley's Estate, 136 Pa. St. the one who may first die, its legal 628 : Wyche v. Clapp, 43 Tex. 544 ; operation, if valid, is the same as March v. Huyter, 50 Tex. 243. if each had made a separate will, LAW OF WILLS. 73 The early English cases have been re-discussed, with the result that modern courts have declared that the early text-book writers and American courts misunderstood them/^ and the early American cases holding such wills invalid have been overruled."'^ In jurisdictions where a married woman may make a will, husband and wife may make a joint will/^ The single instance in which modern courts are still in- clined to treat wills of these classes as invalid is the type of will in which the testators have joined in one instrument in a complete scheme for the disposition of their joint property, or of their separate property treated as a joint fund, and have fixed the death of the survivor as the time for such will to take effect.^^ 19 In re Davis's Will, 120 N. Car. em U> pay, what distmetion if any, between speeific and pecuniary legacies, and what effect the possible ultimate insolvency of the estate of the survmng testator should have are questions which will sooner or later be presented for judicial consideration wherever such type ot will is treated as valid. 78 LAW OF WILLS. CHAPTER VII. THE CONTRACT TO MAKE A WILL. ^70. Validity of contracts to bequeath or devise and revoca- bility of wills made thereunder. Revocability, as we have already seen, is an essential feature of a will. No instrument which passes a present interest is a will, even though the enjoyment of the property in which such interest is given is postponed till the death of the donor. But the testator may during his lifetime, for a valuable consider- ation, agree to bequeath or devise his property to certain per- sons or for certain purposes. Such contracts have repeatedly come before the courts for adjudication and have been held valid and enforceable as con- tracts ; ^ though the original policy of upholding them has been 1 Jones V. Martin, 3 Austr. 882; Flanders, 118 Mo. 660; Healey Walpole V. Orford, 3 Yes. Jr. 402; v. Simpson, 113 Mo. 340; Townsend v. Vanderwerker, 160 U. Leach v. McFadden, 110 Mo. S. 171; Bolman v. Overall, 80 Ala. 584: Anderson v. Schockley, 82 Mo. 451: Manning v. Pippen, 86 Ala. 250 : Burns v. Smith, 21 Mont. 251 : 357; Owens v. McNally, 113 Cal. 53 Pac. 742; ioung v. Young, 51 444; Crofut v. Layton, 68 Conn. 91 ; N. J. Eq. 491 ; Hart v. Hart, 57 N. J. Keith V. Miller, 174 111. 64; Cavi- E. 543; N. J. 42 Atl. 153; Edson v. ness V. Rushton, 101 Ind. 500; Gar- Parsons, 155 N. Y. 555; Phipps v. ardv.Yeager. (Ind.) 1900: 56 X. E. Hope, 16 O. S. 586: Hoffner's Es- 237 ; Allbright v. Hannah, 103 lo. tate, 161 Pa. St. 331 ; Rivers v. Riv- 98; Bird v. Pope, 73 Mich. 483: ers. 3 Desaus ( S. Car.). 190; Gard- Wricrht V. Wright, 99 Mich. 170 : ner v. Gardner. 49 S. Car. 62 : Green Kleeburg v. SchradeT (Minn.). 72 v. Broyles, 3- Hump. (Tenn.). 167: N. W. 59: 69 Minn. 136: Nowack v. Brinton v. Van Cott, 8 Utah, 480. Berger, 133 Mo. 24: Teats v. 79 LAW OF WILLS. questioned in oUter dicta? The enforceability of a contract to make a will does not, of course, prevent the will itself from bein- revocable. If it were irrevocable it would not be a wil .•' The will itself, though made in pursuance of a contract to make a will is, as far as the Probate tribunals are concerned, as re- vocable as any other will- and whatever remedy may be .iven must be by an action at law against testator s estate for damages for breach of contract, or a suit in equity to have the heirs and next of kin, or the beneficiaries under the will, it testator has left another will, declared trustees for the prom- isee.* Thus the marriage of testator will operate as a revo- action of a prior will made in pursuance of a contract.^ A contrary view was entertained in a New York case, where an iniunction was allowed against probating a will revoking an earlier will made in pursuance of a contract.^ But where the will is a part of the contract it can not be revoked as far as such contract is concerned. Thus, where a mortgage and a will were executed simultaneously, and the will fixed the date ot payment of the debt secured by the mortgage, it was held that the will could not be revoked so as to change the date of pay- ment of such debt.'^ 2 "Whatsoever may be thought of 3 See Sec. 50. the policy which permits a person ^ Sloniger v. S^onxger IGl HL to irrevocably direct the disposition 270 ; Gloucester s ^^ ill, 32 N. Y. b. of his property after iiis death with- R. 901 ; 11 N. Y. Supp. 899. out putting his intentions in the *See Sees. 78 and /9. shape required by the Statute of ^^ Sloniger V. Sloniger, 161 111. Wills, it can not be questioned that 270. instances of glaringly fraudulent « ^obb v. Hanford, 88 Hun 2L conduct in obtaining services or "It is not contended but that property bv the inducement of such Mrs. Cobb could have herself been unfulfilled^ promises have led to a enjoined from -^-^mg /^^^^^^"^ series of decisions in England and will." Cobb v. Hanford, 88 Hun, in this country in which courts have 21. oiMi.l. filS taken hold of and remedied such ^ Keagle v. Pessell 9 M h^ 6 8 instances of fraud by seizing the (to hasten .P^^^f^^^^'f;'/,; property of the promisor and de- Smith v. Smith, 135 Pa. St. 48 (to voting it to the relief of the de- hasten payment to estate), frauded party." Duvale v. Duvale, 54 N. J. Eq. 581. 80 LAW OF WILLS. §71. Necessity of all the elements of a valid contract. While such contracts are enforceable as valid contracts, thev do not stand upon an csi)ecially favored footing. In order to be enforceable they ninst have all the essential elements of any valid contract. That the ])roniisor nnist be competent in point of capacity is an elementary proposition which may be left with a general reference to any of the standard works on con- tracts. Bnt the questions of consideration and certainty are presented in these contracts in peculiar aspects, and need special discussion with reference thereto. §72. Consideration. A consideration is, of course, essential; without one, con- tracts of this class can not be enforced.*^ The most common forms of consideration in these contracts are services rendered for the promisor, in consideration of which he promises, by way of compensation, to devise or bequeath certain property to the person rendering the services. Such promise is based upon valuable consideration, and is enforceable.^ Of the services to be rendered a very common form is that of personal services in supporting and caring for the aged.^*^ An- other common form of consideration is the surrender of a child to be adopted and brought up by the promisor as his own child, he promising to leave her property at his death. The weight of authority is that this is such a consideration as will, in law, support the promise to devise the property to the child." 8 Moore v. Stephens, 97 Ind. 271; v. Babcock, 163 Mass. 326; Healey Wallace v. Rappleye, 103 111. 229; v. Simpson, 113 Mo. 340; Drake Woods V. Evans, 113 111. 186; v. Lanning, 49 X. J. Eq. 452 ; Emory Pleasanton's Estate, 6 Pa. Dist. Rep. v. Darling, 50 O. S. 160. 6; 19 Pa. Co. Ct. Rep. 205. n Benge v. Hiatt, 82 Ky. 666; 9 Emory v. Darling, 50 0. S. 160; 56 Am. Rep. 912: Healey v. Slmp- Snyder v. Castor, 4 Yeates (Pa.) son, 113 Mo. 340; Burns v. Smith, 353: Thompson v. Stevens, 71 Pa. 21 ]\Iont. 251; 53 Pac. 742. St. 161. But in Woods v. Evans, 113 111. 10 Brady v. Smith, 28 N. Y, S. 186, it was held that the surrender 776; 8 Misc. Rep. 465; Emery of the child together with the ser- LAW OF WILLS. °^ Where the child has rendered services to the person adopting it, the courts are ahnost unanimous in holding that a consider- ation for the promise to leave property exists,^ ^ although, as the cases cited in the notes indicate, there is some divergence of judicial opinion. A promise by one to make a certain disposition of property by will on consideration that another person would likewise niake a specified disposition of his property by will, has been held to be supported by a valid consideration.^ =^ A promise of a widow who inherited her husband's property to provide in her will for the payment of services rendered to her deceased husband in consideration of promisee's forbearing to litigate the claim, was held to be supported by a valid con- sideration, namely, the forbearance of the owner of the claim to sue the husband's estate thereon.^^ And the transfer of the legal title of real estate to the promisor is a sufficient con- sideration to support a promise by promisor to devise such real estate.^ ^ But the abandonment of efforts to get testator to add a codicil to his will is no consideration for a contract to make a specific devise.^^ Since a contract to make a will is as enforceable as any, it follows that the promise in consideration of which the will is m.ade is itself enforceable against the prom- isor, where the will is made in consideration of such promise. Accordingly, a contract between a beneficiary and a testator, by which the beneficiary agrees, in consideration of the gift vices rendered by the child, did not Walpole v. Orford, 3 Ves. Jr. 402 ; 2 constitute a consideration for the Harg. 304; Crofut v. Layton, 08 promise to devise property; and in Conn. 91; So Atl. 783; Ed- Wallace V. Rappleye, 103 111. 229, son v. Parsons, 155 N. Y. 555: the surrender of an illegitimate 50 N. E. 265, affirming s. c. 85 Hun. child to her father was held not to 203 ; 32 N. Y. S. 1030. be a consideration. i4 Purviance v. Purviance (Ind.), 12 Roberts v. Hall, 1 Ont. Rep. 42 N. E. .364 ; 14 Ind. App. 209. 388- Sharkey v. McDermott, 91 Mo. i^ In re Hoffer's Estate, 101 Pa. G47; 60 Am. Rep. 270; Van Dyne St. 331: 29 Atl. 33; Riley v. Allen, v. Vreeland. 11 N. J. Eq. 370; Heath 54 N. J. Eq. 495; 35 Atl. 654; Du- v. Heath, 18 Misc. Rep. (N. Y.) vale v. Duvale, 54 N. J. Eq. 581; 521; Emerv v. Darling, 50 0. S. .39 Atl. 687 ; 40 Atl. 440; 16 Lennig's Estate, 182 Pa. St. 160. isDufour V. Pereira, 1 Dick, 419; 485; 38 L. R. A. 378. 82 LAW OF WILLS. to him by will, to j)ay money to another, or to do some other thing for the benefit of that other is enforceable at law, on action brought by the person to whonL the property was to be given by the terms of the contract.^ '^ A common form of such con- tract is a promise made to testator on consideration of his re- fraining from altering a will already made.^^ A., one of the three devisees to whom testator gave the res- iduum of his estate, promised testator, in consideration of his abstaining from making a contemplated change in his will, that A. would attend to having his wishes fulfilled by paying to the intended Ixniofieiary an amount e(iuivalent to the in- tended gift. On A.'s failure to keep her promise after the death of testator it was held that A. was personally liable on the promise, but for only one-third of the amount promised.^ '^ The promisor can not avoid the contract on the ground that it works a revocation of the will by parol, or that it creates a parol trust.^*^ The conduct of the promisor in breaking the contract en- tered into after receiving the devise or legacy, which was given in consideration therefor, is sometimes spoken of as fraud. While clearly dishonorable, it is, however, not fraud, since there has been no misstatement of any material fact. It is nothing more than a breach of contract. It is, accordingly, held that a will thus obtained, if valid otherwise, can not be set aside for such a breach of contract.^^ If the other elements of fraud and undue influence are present the will may be thereby ren- dered invalid. Thus, a will made by a married woman as a result of the 1" Lawrence v. Oglesby, 178 111. lo Yearance v. Powell, 55 N. J. 122; 75 111. App. GG9; Yearance v. Kq. 577. Powell, 55 N. J. Eq. 577 ; Hoffner's 20 Lawrence v. Oglesby, 178 111. Estate, IGl Pa. St. 331; Brooke's 122, affirming 75 111. App. 669. Estate, 109 Pa. St. 188 ; Hodnett's 21 Weathers v. McFarland, 97 Ga. Estate, 154 Pa. St. 485; Gaullaghor 266; (a promise by a husband to V. Gaiillagher, 5 Watts 200; Hoge pay to testatrix's child $250, if tes- V. Hoge, 1 Watts, 163. tatrix would leave the husband her 18 Lawrence v. Oglesby, 178 111. entire property). 122 ; Yearance v. Powell, 55 N. J. 577. LAW OF WILLS. 83 repeated entreaties of her sons, and of the prom. e of her hus band to provide iu his will for a grandehdd whom testatrix omitted L that ground, was treated as void on aceount of undue influenee and fraud, the husband bemg insolvent, and his promise never kept.-^ A promise to make a will based on an illegal consideration, sueh as unlawful sexual intercourse, is, of course, unenforce- able." §73. Certainty. A contract to make a will must, in order to be enforceable, "be clearly proved and be certain and unambiguous m al its tenns"^^ In no other class of contracts are parties so likely to fail to come to a definite agreement as in this class; and in no class of cases do the courts look upon the contract to be en- forced with greater jealousy." The failure to arrive at a definite agreement may arise out of the fact that the promisor does notfntend to commit himself to any definite course of action. A mere expression of intention to make a certain dis- position of property is of course not valid as a contract; still less are vague offers.^" ., , „i,^ :* tVne A contract to bring up a child, educate it and make it the "heir" of promisor has been held to be unenforceable m Ken- nephew in Germany: "If you want to come you have to do your rights of the kid, and I am going to do the rights of the father. If you treat like my kid you shall be my heir, but not before I am dead. If you treat me, which you will have to do well, then I am going to treat you right," it was held that this did not amount to an absolute prom- ise to make the nephew his heir and devisee if he would come from Germany and live w^ith his uncle. Wilmer v. Borer, 4 Kan. App. 109. 22 Gordon v. Burris, 153 (Mo.), 223 (1899), 54 S. W. 54G. (But in this case there was other evidence of undue influence. The finding was not based entirely on the fraud of the husband.) 23Drennan v. Douglass, 102 111. 341. 24Sloniger v. Sloniger, 161 111. 270, quoting Rock Island & Peoria Ry. Co. V. Dimick, 144 111. 628. 25 Sloniger v. Sloniger, 161 111. 270; Shaw v. Schoonover, 130 111. 448; Woods v. Evans, 113 111. 186. 26 Where an uncle wrote to his 84 LAW OF WILLS. tucky.^^ x\jid an ante-nuptial contract, by which the husband agrees to adopt his wife's children by a former marriage as his "heirs" has been held not to be a ])romise to make a devise of the hnsband's property to them, bnt to leave the husband with the same power of exelnding them from' a share in his Illinois realty that he would have had of excluding his o\\ti children.-'^ A similar contract has been held valid and enforceable in ]\[is- souri.^^ Or the promisor may detinitely intend to make some testamentary disposition of his property in favor of promisee, but he does not decide what provision he will make. Thus, he may agree to leave promisee "as much as any relation he had on earth,"^^ or that while promisor lived promisee should have a good home, and at his death she should be provided for so that she should never want as long as she lived ; ^^ or that he will provide for the adopted child as he does for his own chil- dren, and his will makes his ovm. children residuary legatees. These agreements are too indefinite to be enforced.^^ An agreement in writing to leave by will to an employee as much as he would lose by declining an offer of a partnership in a competing firm, in consideration of his declining such offer and remaining in the employ of promisor was held to be too indefinite for enforcement in law or in equity.^^ But a promise to leave promisee so much property "that she need not to work," ^"* or to leave her "independently rich," ^^ or to 27 Brewer v. Hieronymous (Ky.) 3i Wall's Appeal, 111 Pa. St. 460. (no official report), 41 S. W. 310, 32 Walker v. Boughner, 18 Ont. following Davis v. Jones, 94 Ky. Rep. 448. 320, citing Willoughby v. Motley, 33 Rusell v. Agar, 121 Cal. 396: 83 Ky. 297 ; Power v. Hafley, 8.5 Ky. 53 Pac. 926, decided under Civ. 671, and distinguishing Benge v. Code, Section 3390, citing Graham Hiatt, 82 Ky. 666 : 6 Ky. Law Rep. v. Graham, 34 Pa. St. 47.5, and dis- 714, where the contract was to bring tinguishing Bayliss v. Pricture, 24 up the child and de\'ise specific Wis. 651. property to it. 34 Thompson v. Tucker Osborne, 28 Long V. Hess, 154 111. 482; 27 ' 111 Mich. 470; 69 X. W. 730: L. R. A. 791. Thompson v. Stevens, 71 Pa. St. 29Xowack V. Berger, 133 Mo. 24; 101. So Gary v. James, 4 Desaus. ( S. 35 Cottrell's Estate, 2 W. X. C. Car.) 185. (Pa.) 8.3. 30 Graham v. Graham, 34 Pa. St. 475. OK LAW OF WILLS. "^^ make her "his heir," ^^ or to leave promisee all the property that promisor omiecl at his death ;=^^ or to leave promisee "a child's share" in the estate of promisor, where promisor was at the date of the contract and always remained childless f^ or to make "adequate compensation," ^^'^ have been held U) be definite enough to maintain an action upon. A contract to bequeath so much of an annuity as should re- main unexpended at the death of the annuitant is enforceable, although the amount is uncertain.^*^ §74. The Statute of Frauds. When the contract to compensate by will is oral, the question arises as to the admissibility of parol evidence to establish the existence and terms of such contract. Contracts to make wills are contracts which may be per- formed witliin one year from the date thereof. Accordingly, such contracts are not upon this ground within the Statute of Frauds, but may be proved by parol evidence.^i But when the contract is to devise specific real property, the section of the Statute of Frauds which requires agreements for the sale of land to be in writing applies, and the contract can not be proved by parol.^^ xhe same rule applies when the contract 36 Gary v. James, 4 Desaus (S. Bell v. Hewitt, 24 Ind. 280; Wel- ^,^^. ) jgg_ lington V. Apthorp, 145 Mass. 69; 37 Healey v. Simpson, 113 Mo. Updike v. Ten Broeck, 32 N. J. L. 340- Brady v. Smith, 28 N. Y. S. 105; Quackenbush v. Ehle, 5 Barb. 776- 8 Misc. Rep. 465; Van Duyne (N. Y.), 469; Kent v. Kent, 62 N. V Vreeland 12 N. J. Eq. 142 ; Drake Y. 560; 20 Am. Rep. 502; Jilson V. Lanning. 49 N. J. Eq. 452; v. Gilbert, 26 Wis. 637 ; 7 Am. Rep. Kleeburg v. Sohrader, 69 Minn. 136; 100. 72 N. W. 59. Contra, Izard v. MJddleton, 1 38 Barnes v. Smith, 21 Mont. 251 ; Desaus (S. Car.), 116. 53 Pac. 742; or where promisor had 42 Walpole v. Orford, 3 Ves. 402; children; Norris v. Clark, 3 Weekly Harder v. Harder, 2 Sandf. Ch. 17; Law Bull 994. Manning v. Pippen, 86 Ala. 357 ; " 39 Rivers V. Rivers, 3 Desaus ( S. 11 Am. St. Rep. 46 ; Baxter v. Kitch, Q^j. ) 190 37 Ind. 554; Wallace v. Long, 105 40Garardv.Yeager (Ind.), 1900; Ind. 522; 55 Ind. 222; Orth v. 56 N E 237. Ortli' 145 Ind. 184; Ham v. Good- 41 Ridley V Ridley. 34 Beav. 478; rich, 37 N. H. 185; Smith v. Smith, Fenton v." Emblors; 3 Burr. 1278; 28 X. J. L. 208; 78 Am. Dec. 49; 86 LAW OF WILLS. is one to leave all the property, both real and personal, to prom- 43 isee. In jurisdictions where the Statute of Frauds requires con- tract for the sale of personal property exceeding a certain amount to be in writing, a contract to bequeath personal prop- erty exceeding the value fixed by statute must be evidenced by writing.^^ It is held, however, that when in pursuance of a contract to make a will, promisor does make such will, this is a writing sufficient to satisfy the requirements of the statute.^^ §75. Part performance. It is well recognized as an elementary principle of law that part performance of an oral contract for the sale of real estate may be sufficient to take the case out of the Statute of Frauds.^" As invoked in contracts to devise, the part performance gen- erally relied upon is the surrender of the custody of the child and the benefit of her society and services. The courts sharply disagree as to whether these acts amount to such part per- formance as will take the case out of the statute. Some jurisdictions relax the rule and hold that this is suf- ficient part performance.^'^ Other jurisdictions apply the rule more strictly and hold that such acts do not amount to part performance, on the theory that in order to amount to part Lisk V. Sherman, 25 Barb. (N. Y.), Contra, Hale v. Hale, 90 Va. 728. 433; Harder v. Harder, 2 Sandf. cl. 46 Alexander v. Alexander, 150 (N. Y.), 17; Swash v. Sharpstein, Mo. 579. 14 Wash. 426. 4" Roberts v. Hall, 1 Ont. Rep. So of a contract not to make a 388; Gupton v. Gupton, 47 Mo. 37 will but to allow realty to descend. Sutton v. Hayden, 62 Mo. 101 Dicken v. McKinley, 163 111. 318. Sharkey v. McDermott, 91 Mo. 647 43 Shahan v. Swan, 48 Q. S. 25 ; 00 Am. Rep. 270 ; Davidson v. Hopple V. Hopple, 3 Ohio C.' C. Davidson, 13 N. J. Eq. 246; Van 102. Dyne v. Vreeland, 11 N. J. Eq. 44 Wallace v. Long, 105 Ind. 522: 370: Heath v. Heath, 18 Misc. Rep. 55 Am. Rep. 222; Orth v. Orth, 145 (X. Y.), 521: Rhodes v. Rhodes, 3 Ind. 184; 145 Ind. 206. Sandf. Ch. (N. Y.). 279: Brinton v. 45Whiton v. Whiton, 179 111. 32; Van Cott, 8 Utah, 480; 33 Par. 218. Bruce v. Moon (S. Car.) (1900), 35 S. E. 415. LAW OF WILLS. perfom^ance the acts H,.st be cleariy ref erab e U> some on raet ™ith reference to the real property m question, and that the IdoptLn of a child by due forms of law, or the act of taking it iL the family, would not necessarily refer to any contract on the subject of real estate.^^ _ n i • . +^ Where the contract alleged was that promisor would gne to a specified child a share in his estate equal to that ^^f^^^^^^ would inherit, on consideration that the mother of the child would marrv liim and would surrender the custody and con rol of the child to him, the marriage, followed by -^ ---f -' was held to be sufficient part performance to take the ca.e out of the Statute of Frauds.^<^ ^ rfofim^ A surrender of possession of the real property in the lifetime of the promisor, followed by the erection of valuable improve- ments Lreon by the promisee, is sufficient ^s part periorm^ ance to take the case out of the operation of the Statute of Frauds «^ Surrender of possession of real property alone has been held to amount to part performance.^^ And an oral con- tract between a number of owners of realty in common that each will either devise his share to the survivors or let it pass by descent, and that the survivor shall either devise it or le. it pass bv descent to a certain named person, the only child of the onlv^one of said o^^mers in common, who was married, is taken out of the Statute of Frauds by part performance, where, by compliance on the part of all the other owners in common, .3 Campbell v.McKerncher, 6 Ont. Hayden 62 Mo l^l;/- ^'Y^^- Rep 85- Pond v. Sheean, 132 111. Vreeland, 11 N. J. Eq. 3 12 W. Kep. »i), xoiiu , Ewing v. Richards, 7 312; Dicken v. McKinley, 163 111. J. i^q- i*-^ ' » 318 ; Wallace v. Long, 105 Ind. 522 ; Weekly Law Bull. 183. 55 im. Rep. 222; Shahan v. Swan, 50 Nowack v. Berber, 133 Ho. 21. IrT'o- 5iAllbriglit V. Hannah, 103 lo. 48 O. S. 25. But' a" formal adoption in the 98 ; 72 N. W. 421. Probate CouH where a'petition was ^ ^^^f^^' ^ ^'fZ^',^^^^^^^^^ ..gned by the parents of the child ^^ ^^ ^J^— f^" ^ Z^^l as well as by the adopting parents 238, /^^\;;/^^7'' '^ 414. jy;,^. randum m S^^artz v. bteel. ^ ^^^^^^ ^^ ^^^ ^^^^ ^g. g^.^,^ ^ ^- ^- ^'^*- . • ,ffl Pierce 65 Vt. 200; 25 Atl. 1092. Contra, that adoption is a suffi- Pierce, bo vi. cient part performance. Sutton v. 88 LAW OF WILLS. the realty has vested in severalty in the last survivor, and the child named in the contract can enforce it.^^ A transfer of property to testator below its real value and the performance of personal services for testator in his own home by his children who went to live with him in order to render such services amount to such part performance as take the case out of the Statute of Frauds.^ ^ . §76. What is a breach of such contract. When the promisor dies, not leaving a will valid in all respects, and conforming to the agreement, the contract is broken, and in a proper case equity will give relief; or if tlic facts which demand and justify equitable relief are absent, the party has a right of action at law. The breach of contract in such case exists independent of the motive of the promisor for such breach. He may have intended to comply with the con- tract and have omitted to make tlie will through negligence;"*^ or he may have believed in good faith that the will which he has made in violation of the contract is better for the interests of all concerned tlian the will which he had agreed to make,^" or he may have attempted in good faith to execute his will and failed to comply with the rules of law as to execution ; ^"^ or his death may follow his will so closely that the devise, e. g., to a charity, may fail ; ^^ or he may believe that he has per- formed his contract in another manner.^° In all such cases the contract is broken by his death without the \vi\\ contracted for. His motive may be important to show that he regarded 53Murphey v. Whitney, 140 N. 57 Burns v. Smith, 21 Mont. 251 ; Y. 541. 53 Pac. 742; Green v. Orgain, — 54 Svanburg v. Fosseen, 75 Minn. Tenn. 46 S. W. 477. 350; 43 L. R. A. 427; 78 N. W. ^» Tn re Hoffner's Estate, 161 Pa. 4. St. 331; 29 Atl. 33. 55 Weingaertner v. Pabst, 115 111. 59 Burns v. Smith, 21 Mont. 251, 412. 53 Pac. 742. In this case the promis- 56 Riley v. Allen, 54 N. J. Eq. or made no will, because he believed 495. In this case the devise was that an attempted adoption of made not to promisee, but to her promisee complied with the law, children, in order to keep promisee's and that it was therefore unneces- husband from wasting it. sary to make a will. LAW OF WILLS. 8" the contract as still in force, but it can not prevent the ex- istence of the breach of contract. §77. Construction and performance. As said already, these contracts must be sufficiently definite and certain to enable the courts to ascertain their tenns clearly, and to decide what would amount to a breach. The rules of construction of such contracts are substantially the same as for any other contracts. Thus, where the promisor agreed to lease to promisee all her estate remaining at her death it was held to include property subsequently acquired by promisor by in- heritance, although such inheritance was not contemplated by either ])arty to the contract at the time of entering into it.*^*^ And where promisor agreed to refund certain money to his daughter if she did not ''heir" a particular portion of his land at his death, it was held that the meaning of this contract was that she should receive his entire estate in such land; and accordingly when her father devised a life estate in such land to her ^^•ith remainder over to the testator's other children if she died without issue he did not perform his agreement.^' And where C and his only son and K and his only son were about to form a corporation, and as part of the contract they mutually agreed not to sell their stock, but that C and his son should by natural wills boqueatli their respective holdings to each other, and K and his son should do likewise, and C left his stock to his son on condition that he would pay to C's widow $500 per annum, it was held that such contract was valid, and that C had not performed it.^^ In order to entitle promisee to recover upon the contract it is necessary that he perform all the conditions precedent on his part to be per- formed.^^ Thus where a promise was made by a father to devise land to his son in consideration of the son's living on the land and supporting and taking care of his father the son's 60 Kleeburg v. Sehrader, 69 Minn. 62 Crofut v. Layton, 68 Conn. 91 ; 136; 72 N. W. 59. 35 Atl. 783. 6iParrott v. Graves (Ky), 32 S. "3 Weingsertner v. Pabst, 115 111. W. 605. 412. 90 I.AW OF WILLS. heirs have no right to specific performance of the contract if he left the land during his father's life in violation of his agreement and entered the army, where he lost his life.*^^ But this rule must not be taken to exclude the right and power of the promisor to waive any of such conditions which are bene- ficial to him, provided enough are left in force to amount to a consideration. Where promisor agreed to leave a girl whom he meant to adopt such part of his estate as she would inherit if she were his own child in consideration of her living with him as a dutiful child, the fact that she was at times disobe- dient and once ran away was not such failure of performance on her part as to defeat her rights under the contract when it appeared that promisor had forgiven her, gone after her to induce her to come home with him, and had treated her as .his own child for years afterwards.*^^ §78. Remedies for breach of contract at law. Where the promisor has bound himself by a valid contract to devise certain property and has failed to perform his con- tract the promisee may maintain an action at law against the personal representatives of the decedent promisor. ^•^ The promisee has a choice between two theories of his case. He may sue on the contract. In such case the measure of damages will be the value of the property which l)y the terms of the contract was to have been devised or bequeathed to him.^'^ Or he may apparently treat the contract as rescinded and sue on quantum meruit for the reasonable value of his services.®^ When the contract is made by parol and falls within the terms of the Statute of Frauds the promisee can 64 Cox V. Cox, 26 Gratt (Va.), 67 Benge v. Hiatt, 82 Ky. 666; 305. 50 Am. Rep. 912; Porter v. Dunn 65 Burns v. Smith, 21 Mont. 251: 131 N. Y. 314; Graham v. Graham, 53 Pae. 742. 34 Pa. St. 475. 66Purviance v. Shultz, 16 InJ. ss Hudson v. Hudson, 87 Ga. 678 ; App. 94; 44 N. E. 766; Lisle v. Purvianee v. Shultz, 16 Tnd. App. Tribble, 92 Ky. 304; Clark v. Cor- 94; 44 N. E. 766; Laird v. Laird, dry, 69 Mo. App. 6; Logan v. Mc- 115 Mich. 352; 73 N. W. 382; Green Ginnis, 12 Pa. St. 27. v. Orgain (Tenn.), 46 S. W. 477. 91 LAW OF WILLS. not, of course, maintain an action upon the contract m the ab- sence of part perfonnance, but he can recover tor the services rendered, rights surrendered or other original consideration for such contract - The view of more modern authorities is that in such cases the measure of damages is the value of the orioinal consideration for the contract to bequeath or devise. ?here is, however, a conflict of authority on this point, and one line of cases takes the view that the terms of compensation fixed bv the contract may be introduced in evidence to the iury tJ show what the parties understood a reasonable com- pensation to be - Where this rule is adopted the Statute of Frauds is practically annulled. Where the promisor has left property by will which m part satisfies the terms of the contract the promisee may ac- cept such partial performance of the contract and maintain his action against the estate for the balance. '- ^79. Remedy for breach of contract in equity. ^Yhere the promisor, who has entered into a valid contract to devise or bequeath property, dies without having performed such contract equity will give relief. This is usually spoken of as Specific Performance or Relief in the Mature of Spe- cific Performance. Of course specific performance is impos- sible in such a case. The real nature of the proceeding is to have the heirs, devisees or personal representatives of the de- ceased declared to be trustees in respect to the property cov- ered by the contract, to which they take the legal title for the eoHudson V.Hudson. 87 Ga. 678; Y. 299; Hertzog v. Hertzog. 34 Jack V. MoKee. 9 Pa. St. 235. Pa. St. 418. TO Wallace v. Long, 105 Ind. 522; ti Hopkins v Lee, 6 \J heat (L 55 ^m Rep. 222. overruling Frost S.), 109; Hudson ^ Hudson, 8 ; T^ 53'lnd. 390; Purviance v. Ga. 678; Jack v. McKee 9 Pa St Shultz. 16 Ind. App. 94; Succession 235; McDowell v. Oyer, 21 Pa. St. of McNamara. 48 La. Ann 45 = 18 41- ^^^ ^, ^. ^^^ So. 908: Ham v. Goodrich. 3/ N. T-i/oiier \.xj H. 185; Erbcn v. Lorillard. 19 N. 92 LAW OF WILLS. benefit of the promisee as to cestui que trustJ^ Or, where specific performance is impracticable, the promisee may have reconveyance of any property with which he has parted to promisor on the faith of the contractJ^ Where the testator has conveyed the land in his lifetime by voluntary conveyance to one having knowledge of his contract to devise it such deed may be set aside upon application of the promiseeJ^ Where the promisor recognizes the contract as binding, and merely omits to make a will equity will not assume, in a suit brought during the life of the promisor, that he will violate his contract. The contract has not in fact been violated, for the testator has the whole of his life in which to perform it. Therefore, under such circumstances equity will not compel promisor to make a specific will.'*^ But where the testator 73 Gregor v. Kemp, 3 Swanst. 404; Jones v. ^Martin, 5 Ves. Jr. 266; Randall v. Willis. 5 Ves. Jr. 262; Fortescue v. Hennah, 19 Ves. Jr. 67 ; Logan v. Wienholt, 7 Bligh. N. R. 1; Brown v. Sutton, 129 U. S. 238 ; Townsend v. Vander- werker, 160 U. S. 171; .Taffee v. Jacobson, 48 Fed. 21 ; Bolman v. Overall, 80 Ala. 451; 60 Am. Rep. 107; Owens v. McXally, 113 Cal. 444; Maddox v. Rowe, 23 Ga. 431: 68 Amer. Dec. 535; Allbright v. Hannah, 103 lo. 98 ; 72 N. W. 421 : Whiton \. Whiton, 179 111. 32; 70 111. App. 553: Lisle v. Tribble, 92 Ky. 304 ; Carmichael A^ Carmichael, 72 Mich. 76: Bird v. Pope, 73 Mich. 483: Haines v. Haines, 6 Md. 435; Miindorff v. Kilbourn, 4 Md. 459 ; Hiatt V. Williams, 72 Mo. 214; 37 Am. Rep. 438 ; Wright v. Tinsley, 30 Mo. 389; Healey v. Simpson, 113 Mo. 340 ; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647 ; Leyson v. Davis, 17 Mont. 220; 42 Pac. 775: Burns v. Smith, 21 Mont. 251 : 53 Pac. 742 : Van D^Tie V. Vreeland, 12 X. J. Eq. 142: 11 X. J. Eq. 370: Davison v. Davison, 13 X. J. Eq. 24G; Johnson v. Hubbell, 10 X. J. Eq. 332: Wi Am. Dec. 773: Pflugar v. Pultz, 43 X. J. Eq. 440; ll-Atl. 123: Duvale v. Duval e, 54 N. J. Eq. 581 : 40 Atl. 440: Riley v. Allen, 54 X. J. Eq. 495; Parsell v. Stryker. 41 X\ y. 480; Emory v. Darling. 50 O. S. 160; Xorris v. Clark, 3 W. L. B. 994; In re HoflFner's Estate, 161 Pa. St. 331; 29 Atl. 33; Brinker V. Brinker, 7 Pa. 53 : Gary v. James, 4 De Saus, 185 ; McKeegan v. O'Xeil, 22 S. Car. 454; Fogle v. P. E. Church of St. Michael, 48 S. Car. 86; 26 S. K 99: Brinton v. Van Cott, 8 Utah, 480; 33 Pac. 218: Smith V. Pierce, 65 Vt. 200. 74 Riley V. Allen, 54 X'. J. Eq. 495; 35 Atl. 654. 75 Kastell V. Hilman, 53 X. J. Eq. 49. 76 Maud V. Maud. 33 O. S. 147. See the remarks of the court in Bol- man V. Overall, 80 Ala. 451; 60 Am. Rep. 107, which, though merely dicta, appear to be assumed gen- erally as a correct statement of the law. LAW OF WILLS. 98 iu his lifetime repudiates the contract and declares or mani- fests his intention not to be bound by it, equity may, on bill in the nature of quia timet, declare the property to be held in trust for promisee, his enjoyment to begin according to the terms of the con tract J ^ The general principles of equity which control specific per- formance apply in a contract to make a will. We have seen that no relief will be given for breach of a gratuitous promise to devise, either in law or in equity. But equity may, for certain reasons, refuse specific performance of a contract upon which an action at law would lie, leaving the parties to their rights at law. The contract, in order to obtain specific per- formance (so called), must be clear and certain."^^ Thus a promise to devise to promisee the use of ju-omisor's home for life, the title to go to some undetermined member of promisor's family, was held too indefinite.'^ ^ So was a promise to devise one hundred acres of land without specifying what land or how valuable f^ or a promise to give promisee as much as ho could make by entering into a partnership with a competitor of promisor,^^ In all these cases equity refuses relief, and leaves the promisee to his action at law upon a quantum meruit. The contract must be a fair and reasonable one to induce equity to grant relief. A contract by which one binds him- self to devise all his property to his illegitimate children to the exclusion of his legitimate children,^^ or one by which an uncle binds himself to devise all his property to his niece to the exclusion of his wife, even Avhere he is umnarried at the time of making the contract,^^ is one so unfair and lui- " Diivale V. Duvale, 54 K J. 79 Stanton v. Miller, 58 N". Y. Eq. 581 : 40 Atl. 440, citing and 192. following Van Dyne v. Vreeland, so Sherman v. Kitsmiller, 17 S. 11 N. J. Eq. 370; Parsell v. Stry- & R. (Pa.), 45. ker, 41 N. y. 480. si Russell v. Agar, 121 Cal. 396; TsMundorff v. Kilbourn, 4 Md. 53 Pac. 926. 459 ; Shakespeare v. Markham, 72 82 Wallace v. Rappleye, 103 111. N". Y. 400, affirming 10 Hun, 311; 229. Lisk V. Sherman, 25 Bab. (N, Y.), 83 Owens v. McXally, 113 Cal. 433 ; Sprinkle •*. Hayworth, 26 Gratt 444; 45 Pac. 710. (Va.), 384. 94 LAW OF WILLS. conscionable that equity will not grant relief, but will leave the parties to such rights as they may have at law. Where the consideration for the promise to devise is one in- capable of estimation in money, as where one person has de- voted a great amount of time in giving his society to, and ren- dering personal services to another, according to the weight of authority, equity will grant relief for the breach of such contract.^^ Where the contract has become impossible of literal per- formance, equity will not attempt to compel parties to per- fonn an impossibility, but will grant such relief as the facts make just and expedient. Thus, a testator had promised his daughter that if she would deed certain real property to him, he would leave to her and her husband the income of $25,000 apiece during their natural lives. The daughter made the conveyance, but the testator by will disposed of his property for the benefit of the minor children of his daughter. The testator's estate did not amount to $50,000, and the specific performance of his agi'eement was impossible. Held, that in such case the dauo;hter was entitled to a rescission of the con- 84 Sutton V. Hayden, 62 Mo. 101 ; the authorities are uniform in say- Emory V. Darling, 50 O. S. 100. ing that specific performance is In Sutton V. Hayden the court the proper remedy. The considera- said in speaking of the value of tion that moved Miss Powell to services: make the promise was a desire "The law furnishes no standard for the society of her sister. The by which the value of such ser- value of the society of one sister vices can be estimated, and Equity to another is incapable of measure- can only make an approximation ment in money. Rhodes v. Rhodes, in that direction by decreeing the 3 Sandf. Ch. 279. Hence the only specific execution of the contract." appropriate remedy is the one that And in Emory v. Darling, supra, has been awarded." the court said: Emory v. Darling is thus in one "It is suggested that the proper point opposed to Owens v. McNally, remedy would have been an action 113 Cal. 444, in which case it was for the value of the services. No held that the only relief to be given reason can be given for this that was the estimation of the money would not apply to any contract value of the society and services for a conveyance of land. Besides, of the promisee. LAW OF WILLS. "^ tract and a reconveyance of the real property deeded by her to her father.^^ Where the contract was one to make a certain devise, or if promisor should fail to make this devise, to refund certain rents, equity will not decree specific performance, as the prom- isor had his choice between the two alternatives, and if the promisee sues for the rents, he has a complete remedy at law.^*^ The remedy of specific perfonnance must be sought in a. court of equity. It can not be administered by the probate court in a direct proceeding for that purpose.^^ §80, Election of remedies. The promisee may waive his rights under the contract to de- vise property, as we have already said in discussing his rem- edies at law. It follows that having once elected to treat the contract as no longer in force, he can not afterward seek to enforce it; still less can he pursue both remedies at once. Filing a claim for the value of the services which were the consideration for the contract to devise is such an election that the contract can no longer be enforced.^^ §81. Evidence. The evidence by which the existence of a contract to de- vise is to be proved is governed by the same rules as in othei' contracts. The only especial peculiarity is that neither party as a rule is able to testify in such actions, the promisor being dead and the promisee being prohibited from testifying as to transactions with the promisor in his lifetime. The testimony of those not parties to the contract must, therefore, as a rule, be exclusively relied on. The evidence of two competent wit- nesses may be sufficient.^^ 85 Riley V. Allen, 54 X. J. Ch. 88 Broun v. Garten, 89 lo. .373; 495; 35 Atl. 654, citing Johnson Laird v. Laird, 115 Mich. 352; V. Hubbell. 10 N. J. Eq. 332. 73 N. W. 382. 80 Barrett v. Geisinger, 179 111. 89 Newton v. Field, 98 (Ky.) , 186 ; 240. 32 S. W. 623. 87 Svanburg v. Fosseen, 75 Minn. 350; 78 N. W. 4; 43 L. R. A. 427. 96 LAW or WILLS. The alleged beneficiary is not a competent witness to testify to the existence of a contract to make such beneticiary the heir of the promisor, the transaction being with a Jccedent.^^ Where the contract was in writing, but has been lost or de- stroyed, the mother of the promisee may testify to the terms of the agreement ; and where it appears from the t^'stimony that the promisor had agreed in writing tliat he would leave to the promisee a child's share of his estate, and whore other disinterested witnesses testify that promisor spoke of promisee as his daughter, and as such was in the habit of introducing her to his friends; that she was married at his house and with his consent; that at the birth of her child he congratulated him- self on being a grandfather; and that in an auto-biogra})hical article he spoke of her adoption, such evidence was held suffi- cient to support a judgment in favor of a promisee, even though the draftsman of the written contract could not remem- 1>er what the contract contained with reference to the prom- isor's provision for her after his dcath.^^ xVnd where the evidence is conflicting, proof that the will was made in pursuance of the contract, and that thereupon oppo- sition to the foreclosure of a mortgage owned by the promisor was withdrawn f which was claimed as consideration for the promise to make the will), was held to turn the preponderance in favor of the promisee. ^^ In the last example there was evidence tending to show the existence of a definite contract to make a will. It must be distinguished from the cases where the only evidence is that the will was made, and that the act alleged as a consideration was done. Such evidence does not establish the existence of a contract. Thus, evidence that on the same day two sisters made similar wills does not of itself show that this was done in pur- suance of a contract by which each was to make her will in consideration of the other's so doins;.^^ 90 Renz v. Drury, 57 Kan. 84 ; 92 Gardner v. Gardner, 49 S. Car. (and under the Kansas Statute the 62: 26 S. E. lOOL husband of such alleged beneficiary 93 Edson v. Parsons, 15.5 N. Y. is not competent). 555: 50 X. E. 265, affirming s. c. 91 Burns v. Smith, 21 Mont. 251 : .32 X. Y. S. 10.36: 85 Hun. 26.3. 53 Pac. 742. LAW OF WILLS. 97 Also evidence tliat the alleged promisor had referred to the alleged promisee as her adopted daughter, and had stated to others that it was her intention to leave her property to her adopted daughter, is not sufficient to establish the existence of a contract to make her will.^'* As to pleading and evidence in such cases see also.^^ §82. Parties. In an action to enforce specific performance (so-called) of a contract to make a will, the proper plaintiff is the promisee ; the proper defendants are those who have the adverse interest in the property with reference to which the trust is sought to be enforced. Where property has been devised to a sole de- visee he is the only necessary party ; the executor and the heirs not being necessary to the determination of such action,^^ §83, Time at which statute of limitations begins to run. As before stated no right of action accrues during the life- time of the testator. His death is the time at which a right of action first accrues, and the time therefore from which the period of limitations is to be reckoned.^''^ 91 Teats V. Flanders, 118 Mo. 6G0. to show both the terms of the In this case it must be noticed agreement and the consideration that the surrounding facts did not therefor. bear out plaintiff's claim of a s-* Purviance v. Purviance, 14 promise upon consideration. Plain- Ind. App. 2G9 ; 42 N. E. 364 ; Wad- tiff, the alleged promisee, lived with dell v. Waddell, 43 S. W. 46 (Tenn. the alleged promisor only three Ch. App ) . years. She received apparently oe Fogle v. Church, etc., 48 S. ample compensation for two of these Car. 86. three years. During the last six- " o^ Jones v. Perkins, 76 Fed. 82; teen years of the life of the alleged Manning v. Pippen, 86 Ala. 3,57 ; promisor she was alone, and in need 11 Am. St. Rep. 46; Avery v. of care, but she r'eceived none from Moore, 34 111. App. 115. complainant. The evidence failed 98 LAW OF WIILS. CHAPTER VIII. CAPACITY TO MAKE A WILL. §84. History of the law of testamentary capacity. In the sixteenth and seventeenth centuries capacity to make a will was controlled by a different system of law from that regulating capacity to make a testament. As the testament was left to the ecclesiastical courts, the rules of ecclesiastical law governed the capacity of the testator. Wills were re- garded rather as conveyances of land, under the Statute of Wills, and the capacity of one to make a will was controlled by the statute, and by the principles of common law.^ On some points these two systems coincided, on others they w. 401. V. Thayer, 37 W. Va. 38. 129 Hall V. Hall, 38 Ala. 131: In iso Maynard v. Tyler, 168 Mass. re Ruffino's Estate, 116 Cal. 304; 107, citing BroMii v. Ward, 53 Md. Carpenter v. Bailey, 94 Cal. 406; 376. Kimberly's Appeal, 68 Conn. 428 ; isi Smith v. Smith, 48 X. J. Eq. Maynard v. Tyler, 168 Mass. 107; 566; Clapp v. Fullerton, 34 N. Y. Middlewitch v. Williams, 45 N. J. 190. So when testator believes that Eq. 726 ; Smith v. Smith, 48 N. J. the son is not only the product of Eq. 566; White's Will, 121 N. Y. adulterous intercourse, but is a 406; In re Cline, 24 Oreg. 175; drunkard. Kidney's Will, 33 X. B. 9. 126 LAW OF WILLS. in anger at his wife and son, and by way of retaliation for their attacks upon his moral character, called his son a bas- tard, without any evidence to suggest such a charge, was held not to show an insane delusion uj^on the subject.-'^- But it has been held that "ii the testator, utterly without cause or reason and without expressing distrust of the fidelity of his wife, doubted the paternity of his son, and from that cause alone disinherited him when he was one of the natural objects of his bounty, and if he was in such condition of mind that he did not know the actual objects of his bounty, and such con- dition caused him to make a will that he otherwise would not have made, then he was not of sound and disposing mind and memory."^ ^^ Another form of delusion not uncommon exists where the testator wrongly believes that those who would naturally be the objects of his bounty are hostile to him. If this belief is not based on evidence and is not removable by evidence it amounts to an insane delusion ;^^'* while if founded upon ev- idence, though slight and inconclusive, it is not an insane de- lusion. ^^^ The insane delusion must consist at least of a mistake of fact. Without such mistake there may be insanity, imbecility and the like, but there can be no insane delusion. The word "fact," as here used, has a very broad meaning. It includes 132 Dobie V. Armstrong, 160 N. Y. Ky. 240; Woodbury v. Obear, 7 Gray 584. The same principle applies (Mass.) 467; American Seaman's where the evidence shows that the Friend Society v. Hopper, 33 N. Y. wife accused the husband of commit- 619: Ballantine v. Proudfoot, 62 ting adultery and of trying to poi- Wis. 216. son her, but does not show that she i35 Mosser v. Mosser, 32 Ala. .551 ; believed that the charges were true. Carpenter v. Bailey, 94 Cal. 406 ; If made in anger as a means of In re Ruffino's Estate, 116 Cal. 304; annoying her husband, they did not Appeal of Kimberly, 68 Conn. 428 ; show an insane delusion. Scott's Hite v. Sims, 94 Ind. 333 ; Shorb v. Estate (Cal.) (1900), 60 Pac. 527. Brubaker, 94 Ind. 165; Maynard v. i33Petefish v. Becker, 176 111. Tyler, 168 Mass. 107 ; Salter v. Ely, 448. For another instance of in- 56 N". J. Eq. 357; Coit v. Patchen, sane delusion as to legitimacy, see 77 N. Y. 533; White's Will, 121 Haines v. Hayden, 95 Mich. 332. X. Y. 406 ; Martin v. Thayer, 37 W. i34Burkhardt v. Gladdish, 123 Va. 38. Ind. 337; Sherley v. Sherley, 81 LAW OF WILLS. 127 not merely actual occurrences but conditions, natural laws, moral duties and the like.^^^ Thus, us we have already seen, an arbitrary belief that a certain child was not his own may amount to an insane delusion,^ ^'^ and a belief that testator's body was to be preserved forever was held an insane delu- sion.^ ^^ A belief that no woman should be virtuous was held to be an insane delusion where it caused testator to disinherit his daughter,^ ^^ and an arbitrary dislike for, or repulsion to- ward, testator's children or near relatives may be so extreme as to amount to an insane delusion.-' ^*^ §106. Analysis of insane delusion. — Mistake not based upon evidence. In order to be an insane delusion the mistake must be one which is not based upon evidence ;^^^ or at least without any evidence from which a sane man could draw the conclusion which forms the delusion.^'*- This excludes mistakes based up- on insufficient or inadequate evidence ; or evidence from which most persons would draw conclusions very different from those drawn by the one who entertains the delusion ; for mistakes of this sort are often made by persons who are perfectly sane.-'^^ This last qualification, as said before, really begs the whole question, for it presupposes a knowledge of what a sane man is and what he believes. Thus dislike of testator's children be- cause they had appeared against testator in a suit for divorce 136 Morse v. Scott, 4 Dem. (N. 540 ; 22 L. T. 813; Medill v. Snyder, Y.) 507; Joslyn v. Sedam, 2 Cinn. L. Kan. 58 Pac. 902; Smith v. Smith, B. (Ohio), 147. 48 N. J. Eq. 506; Potter v. Jones, 137 Petefish v. Becker, 176 111. 20 Oreg. 239. 448. 142 i-etefish v. Beckea', 176 111. 138 Morse V. Scott, 4 Dem. (i^T. Y.) " 448, and cases cited in note before 514. the last. 139 Joslyn V. Sedam, 2 Cinn. L. B. i" Hall v. Hall, 38 Ala. 131; (Ohio) 147. Middlewitch v. Williams, 45 N. J. 140 Baker V. Lewis, 4 Rawle (Pa.) Eq. 726; White's Will, 121 N. Y. 359. 406; In re Cline, 24 Oreg. 175: 141 Dew V. Clerk, 3 Add. 79; Potter v. Jones, 20 Ore. 239; 12 Banks v. Goodfellow, L. R. 5 Q. B. L. R. A. 161. 128 L^W OF WILLS. which testator's wife brought against him and because they s\Tnpathized with her, while possibly unreasonable, does not constitute an insane delusion.^ ^'^ §107. Analysis of insane delusion. — Mistake not removable by evidence. A further test of the insane delusion is that it can not be re- moved, or at least permanently removed, by evidence.-^*^ This follows naturally from the fact that it is not founded upon ev- idence ; but though a mere corollary, it is in practice a very valuable t^t — possibly the most valuable of those as yet sug- gested by the courts. A mistake made by a sane person is always susceptible of correction. When evidence clearly dem- onstrates that a mistake exists, that of itself corrects such mis- take in the mind of the person who was deluded. Further, many mistakes made by a person who is actually insane may be corrected in this way. But the insane delusion can not be thus corrected. I^o amount of evidence is capable of correcting the mistake in the mind of the person suffering from the delusion — permanently at least.-^^^ §108. Effect of insane delusion on testamentary capacity. When an insane delusion is proved to exist, it follows from the definition already given that the person suffering from it is insane, for the insane delusion is a SATnptom of insanity if not insanity itself. But insanity does not always mean a lack of testamentary capacity. The law, as we have seen, does not require perfect sanity. Further inquiry, therefore, must be made to determine whether the person suffering from the in- sane delusion possesses testamentary capacity or not. Of course, the nature of the insane delusion, together with the remaining evidence, may clearly establish the fact that 14* 7n re Cline, 24 Ore. 175. Gass v. Gass, 1 Heiskell, 613; 145 Bouvier's Law Diet., "Delu- Denson v. Beazley, 34 Tex. 191. sion." Dew v. Clark, 3 Add. 79 ; i*" See Sec. 105 and cases there Medill V. Snyder, Kan. 58 Pac. 962 ; cited. Eobinson v. Adams, C2 Me. 369 129 LAW OF WILLS. such person does not conform to the standard of testamentary capacity already set forth, and, consequently, can not make a will. As this Jase has already heen discussed under the topic of Insanity it will be omitted here.^'^ ,.,. • The class of cases to be discussed are those in which the in- sane delusion is the only symptom of insanity, and is confined to a clearly marked set of subjects. _ This type of insanity is often called monomania, or partial insanity. Monomania is defined as 'insanity upon a partic^ .ular subject only, and with a single delusion of the mmd This definition, and the terms 'monomania' and 'partial in- sanity' are all open to the objection that they imply the theory of the mind referred to as the compartment theory; namely, that a person may be insane upon one subject and perfectly sane upon another. This theory is now generally rejected by psychology, and monomania is explained as a type of insanity which is manifest only upon certain subjects, though it undoubtedly affects the whole mind. In actual practice, from the standpoint ol the law, the modem theory of the mind does not, in specific cases, give a different rule for testamentary capacity from the aban- doned compartment theory. In case of a person whose capacity is rendered doubtlui by the existence of an insane delusion, the rule is that, if the de- lusion was not such as to affect his knowledge, memory and understanding of the extent and nature of his estate, the proper objects of his bounty and the nature of the testamentary act, he has capacity in law to make a will.^^« Thus, an insane 147 See Sees. 94, 96 and 97. man v. Woodman, 47 N H. 120 i.sBouvier's Law Dictionary, Maynard v. Tyler 168 Mass. "Monomania." Lee v. Soudder, 31 N. J. E^ 63 i..ln re Redfield's Estate, 116 Potter v. Jones 20 Ore. 239 12 Cal. 637; Dunham's Appeal, 27 L. R. A. 161; f ^^^^ ^ P^"^/' Conn. 192; Wetter v. Habersham, 68 Pa. St. 342; In re Trich s Wil , 60. Ga. 193; Blough v. Parry, 144 165 Pa. St. 586; Shremer s Appeal, Ind 463; Young v. Miller, 145 Ind. 178 Pa. St. 57; Hemmgway s Es- 65^ Rice V. Rice. 50 Mich. 448; tate, 195 Pa. St. 291; Blakley's Peninsular Trust Co. v. Barker, 116 Will, 48 Wis. 294. Mich. 333, 74 W. W. 508; Board- 130 LAW OF WILLS. delusion as to visions of a religions nature vouchsafed a tes- tator does not of itself destroy testamentary capacity.^^" Nor does a belief of testatrix that her sons had defrauded her in settling their father's estate affect the validity of the will, where it is shown that she had endeavored after the quar- rel thus arising to induce her sons to become reconciled to her ; and that she discriminated against them in her will because they would have nothing to do with her.^^^ If, however, the insane delusion does affect the memory and understanding of the person who suffers therefrom as to the nature and extent of his estate, the proper objects of his bounty and the nature of the testamentary act, such person has not capacity in law to make a will.^^^ Thus, an insane delusion that the beneficiary under the will was Christ is sufficient to avoid the will ;^^^ or an insane delusion that testator's daughter was a member of a house of ill fame; ^^^ or that testator's chil- dren were not his own.^^^ §109. Lucid interval. The second point to consider in dealing with insanity is the so-called lucid interval. The old idea of the lucid interval was that it was a temporary restoration to perfect sanity — ''an interval in which the mind, having thrown off the disease, had recovered its general habit." ^^^ In such an interval a person ordinarily insane might make a will. There are two serious objections to this definition. 150 Williams v. Williams, Ky. 23 iss Orchardson v. Cofield, 171 111. S. W. 789, no off. rep. 14. 151 Heming^vay's Estate, 195 Pa. is* Rivard v. Rivard, 109 Mich. St. 291. 98. in2Gwin v. Gwin (Idaho), 48 iss Petefish v. Becker, 176 111. Pac. 295; Orchardson V. Cofield, 171 448; Haines v. Hayden, 95 Mich- Ill. 14; Whitney v. Twombly, 136 332. Mass. 145; Haines v. Hayden, 95 iss Attorney-General v. Parnther, Mich. 332; Rivard v. Rivard, 109 3 Brown Ch. 441, Lord Thurlow's Mich. 98; Tawney v. Long, 76 Pa. opinion. 106; Thomas v. Carter, 170 Pa. St. 272; Segur's Will (Vt.), 44 Atl. 342. LAW OF WILLS. 131 First. It requires too high a standard of testamentary ca- pacity. Perfect sanity is not requisite ordinarily to constitute testamentary capacity, and there is no reason why it should be requisite in the case of one who has previously been more seriously deranged than he is when he makes his will. Second. At present science inclines to say that a lucid interval as above described either never exists or is extremely rare. The modem definition of the lucid interval is "a period in which an insane person is so far free from his disease that the ordinary legal consequences of insanity do not apply to acts done therein." ^^'^ This definition requires a less complete restoration of sanity than the old definition ; does not set up a standard of capacity in excess of that imposed upon other testators, and indicates a mental condition which, according to the teachings of science, exists quite frequently. The law admits the possibility of a lucid interval of this nature i^"^^ therefore a change which ignores the contingency that testator may recover from an insane delusion is properly refused.^ ^^ Whether the particular will in question was made during a lucid interval is a question of fact to be determined from the evidence adduced. The rule as to testamentary capacity in cases of lucid intervals is the same as that in other cases of doubtful mental capacity. If, at the time of executing the will, the testator had sufiicient mind and memory to know the nature and extent of his property, the proper objects of his bounty and the nature of the testamentary act, he possesses legal capacity to make a will ; ^^^ while if testator has not such disposing mind and memory he can not make a valid will, even 157 Bouvier's Law Dictionary, leo Weir's Will, 9 Dana (Ky. ) "Insanity," Lucas v. Parsons, 27 434; Chandler v. Barrett, 21 La. Ga. 593. Ann. 58; Goble v. Grant, 3 N. J. 158 Potts V. House, 6 Ga. 324; Eq. 629; Davis's Will, 91 Hun, Manley's Executor v. Staples, 65 209; Wright, v. Lewis, 5 Rich. (S. Vt. 370. Car.) 212; Manley's Executors v. 159 Manley's Executors v. Staples, Staples, 65 Vt. 370. 65 Vt. 370. 132 LAW OF WILLS. if the violent symptoms of insanity have entirely disap- peared.^ ^^ A text-book on law does not furnish room for a discussion of scientific theories of the lucid interval and of the distinc- tions between the true lucid interval and mere abatement of the more violent symptoms of insanity. For this, reference is made to the scientific treatises upon this subject. §110. Eccentricity. To distinguish eccentricity from forms of insanity is very easy in theory but not in practice. Eccentricity is deviation from the methods of conduct and behavior usual to the great mass of mankind similarly situated.^ *^- Every person has slight peculiarities of his own, which never cause any suspicion of his testamentary capacity. It is only when they become pronounced by contrast with those about him that they become known as eccentricities, and are invoked to discredit his testamentary capacity. If the eccen- tricity is not due to any form of mental disorder, but to vanity, selfishness and the like, testator may make a will.^^^ ISTor do the facts that testator was filthy, miserly and penurious to an extreme degree establish a lack of testamentary capacity.^*''* The rule of law on this subject is that eccentricity has of itself no effect upon testamentary capacity. The wills of per- sons eccentric to the verge of insanity have accordingly been sustained.^ *^^ So, where mere eccentricity existed of an ex- treme type, manifesting itself in the conduct of testator in blasphemy, filthiness, belief in witchcraft, and such other pe- culiarities as having the dogs eat at the same table with him, 161 White V. Wilson, 13 Ves. 88. Hutchinson, 152 111. 347; Bennett 162 Austen v. Graham, 8 Moore, v. Hibbert, 88 lo. 154; Prentiss v. P. C. 493; Farnum v. Boyd, 56 N. Bates, 88 Mich. 567; Fulbright J. Eq. 766. V. Perry Co.. 145 Mo. 432; Farnum 163 Farnum v, Boyd, 56 N. J. Eq. v. Boyd, 56 N. J. Eq. 766; In re 766. Knight's Estate, 167 Pa. St. 453; i64Tallman's Will, 148 Pa. St. Lee v. Lee, 4 McCord (S. Car.) 183; 286. 165 Ouachita Baptist College, v. 106. Scott, 64 Ark. 349; Hutchinson v. Mercer v. Kelso, 4 Gratt. (Va.) LAW OF WILLS. ^"^ it was held that all this was compatible with testamentary capacity.^ *^^ To be carefully distinguished from these cases are those ot insanity, where some of the symptoms are those of eccentric and peculiar behavior.^ ^^ §111. Spiritualism. In many recent cases the validity of wills has been attacked on the ground that the testators have held the belief known as Spiritualism— that departed spirits hold communication with the living through various physical means. It is difficult to state any consistent reason why in law such belief should affect testamentary capacity. It is, of course, perfectly possible that a believer in Spiritualism may be insane; but, under the rules already given such belief is not, of itself, insanity. The belief is not the result of insane delusions, but is based upon extrinsic evidence; and, though such evidence might not convince the general run of people, it is sufficient foundation for distin- guishing a belief based thereon from an insane delusion. Ac- cordingly the courts have held, when such cases have been pre- sented for adjudication, that belief in Spiritualism does not of itself constitute insanity.^ ®^ Whether in a given case the advice of the medium, together with the belief in the advice of spirits as to a given disposition of property, may not amount to undue influence is, of course, 166 Bennett v. Hibbert, 88 lo. 154. Wis. 557. "Belief in spiritualism 167 See Sees. 103, 105 and 106. is not proof of insanity, but if 168 In re Spencer's Estate, 96 Cal. through that belief one is led into 448- Whipple V. Eddy, 161 111. 114; the delusion that another is a god- Adams, 62 Me. 369 ; Brown v. Ward, a christ-or gifted with powers and Otto V. Doty, 61 lo. 23; Robinson v.' faculties belonging only to super- 53 Md 376; Turner v. Rusk, 53 Md. natural persons, the believer of the 65; McClary v. Stull. 44 Nebr 175; delusion is insane on that subject, Middleditch V. Williams, 45 N. J. and if he is prompted to make a Eq 726; In re Rohe's Will, 50 N. Y. will by that delusion his will can S 392; General Convention v. not be sustained." Orchardson v. Crocker, 7 Ohio C. C. 327; Smith's Cofield, 171 111. 14. Will, 52 Wis. 543; Chafin's Will, 32 134: LAW OF WILLS. another question to be discussed under "Undue Influence." ^*^^ It has been held also that a belief in witchcraft does not render one incapable of making a will.^^^ In a recent Pennsylvania case the testator believed in cure by faith, and thought that he ought to reject his family if they were wanting in faith. It was held proper for the trial court to submit to the jury the question of whether this was an insane delusion and affected his will, adding that otherwise they must hold the will valid, ''however absurd, ridiculous or unfounded you may individually or collectively believe his peculiar views on faith and its effects to have been." ^^^ §112. Drunkenness and the use of drugs. The principles of testamentary capacity already explained apply in cases where the testator is affected by the use of al- cohol or drugs. In such case a person may have the capacity which the law requires for making a will, if, in spite of the effect of alcohol or drugs, such person has sufficient mind and memory to understand the nature and extent of his property, the proper objects of his bounty and the nature of the testa- mentary act.^^2 But if his mind is so affected by alcohol or drugs that it lacks these requisites, he has not such capacity.^ ^^ As in other cases, the question to be determined is solely that of the capacity of the testator at the time of making his will. The fact that he was habitually intoxicated or under the influ- 169 Lyon V. Home, L. R. 6 Eq. 655 ; i72 Slinghoff v. Bruner, 174 111. Thompson v. Hawks, 14 Fed. 902; 561 ; Fluck v. Rea, 51 N. J. Eq. 639; Kimberly's Appeal, 68 Conn. 428; 51 N. J. Eq. 233; Dieffenbach v. 37 L. R. A. 261 ; Orchardson v. Co- Grece, 56 N. J. Eq. 365 : Bannis- field, 171 111. 14; Robinson v. Ad- ter v. Jackson, 46 N. J. Eq. 593: ams, 62 Me. 369; Baylies v. Spauld- 45 N. J. Eq. 702 ; Miller ^. Oestrich, ing (Mass.), 1 New Eng. 914. 157 Pa. St. 264; Levin's Estate, iToAddington v. Wilson, 5 Ind. 140 Pa. St. 179; Key v. Bollaway, 7 137; Schildnecht v. Rompf (Ky.), Baxt." (Tenn.) 575. 4 S. W. 235; Kelly v. Miller, 39 i73 Ball v. Kane, 1 Penne. (Del.) Miss. 17; Fulbright v. Perry Co., 90; 39 Atl. 778: Peck v. Caiy, 27 N. 145 Mo. 432: Van Guysling v. Van Y. 9; Reichenbach v. RndAch, 127 Knren, 35 X. Y. 70. Pa. St. 564 ; Miller's Estate. 1 79 Pa.. 171 Taylor v. Trich, 165 Pa. St. St. 645. 586. LAW OF WILLS. 135 enoe of drugs does not render his will invalidj if he had the requisite understanding at the time that he made it.^^^ Thus, a chronic morphine eater may make a will if not under the influence of the drug at the execution of the will.^'^^ Even where he is under the influence of brandy to a slight extent at the very time that he makes his will he may have testamentary capacity.^ '^^ The same rule as to testamentary capacity applies where the ravages of disease combine with the effects of alcohol or drugs. A man may be a physical wreck/ ^''' or may suffer from locomotor ataxia, combined with years of heavy drinking, and still have testamentary capacity.^ ^^ §113. Delirium. Delirium is a form of mental aberration incident to diseases usually febrile in nature.^ ^^ In the law of wills delirium is treated as a form of tempo- rary insanity, and is subject to the same tests. If the effect of the delirium is to deprive testator of the ability to understand the nature and extent of his property, the proper objects of his bounty and the nature of the act which he is about to per- form, he can not make a valid will.^^*^ In the law of wills the difference between delirium and insanity of the ordinary type is as to the presumption of continuance. Delirium is not pre- sumed to continue; ordinary insanity is.^^^ 174 Wilson's Estate, 117 Cal. 262 Johnston's Estate, 57 Cal. 529 Lang's Estate, 65 Cal. 19; Ball v Kane, I Penne. (Del.) 90; 39 Atl 778 ; Camp v. Shaw, 52 111. App 241 ; Pierce v. Pierce, 38 Mich. 412 Hennessy v. Woulfe, 49 La. Ann 1376; Fluck v. Rea, 51 N. J. Eq 233; Bannister v. Jackson, 45 N. J Eq. 702; Black v. Ellis. 3 Hill (S. Car.) 68; In re Gorkow's Es "TGorkow's Estate, 20 Wash. 563; 56 Pac. 385. 178 /n re Miller's Estate, 179 Pa. St. 645. 173 Bouvier's Law Diet., "Deliri um, febrile." Owing's Case, 1 Bland (Md.) 370. ISO Staples v. Wellington, 58 Me. 453; Hix v. Whittemore, 4 Met. (Mass.) 545; Clark v. Ellis, 9 Oreg. 128. tate, 20 Wash. 563. isi See Chap. XIX, Evidence of 175 Bush V. Lisle, 89 Ky. 393. Incapacity, Sec. 384. i76Bevelot v. Lestrade, 153 111. 625. 136 LAW OF WILLS. It is, moreover, a matter of fact recognized by courts of law that the lucid interval is far more common in delirium than in insanity; in fact, in delirium the lucid interval is the normal condition, which returns as soon as the severity of the disease abates.^^^ §114. Delirium tremens. Delirium tremens is "a form of mental disorder incident to habits of intemperate drinking." ^^^ This form of de- lirium is also treated in the law of wills as a form of temporary insanity, and is subject to the tests already given.^^* §115. Persons under guardianship. Questions are occasionally raised as to the validity of wills made by persons under guardianship. Such persons may, and often do, lack the mental capacity to make a valid will ; and, of course, if such ability is lacking, the adjudication of idiocy, insanity or the like, and the appointment of a guardian will not add to the capacity of the person in question. The question here considered is quite different. It is this : Can a person who has been adjudicated insane or idiotic or the like, and placed under guardianship or in an asylum, make a valid will if it can be shown that at the date of making such will he possessed the requisite mental capacity ; or does the existence of the guardian- ship conclusively establish his incapacity to make a will until such guardianship is determined by a decree of court ? The courts have answered this question by holding that a person under guardianship may make a valid will if he has the testamentary capacity which is required by law in other is2Brogden ,v. Brown, 2 Add. i §4 Peck v. Gary, 27 N. Y. 9; 336; Brown v. Riggin, 94 111. 5G0 ; Edge v. Edge, 38 N. J. Eq. 211. Staples V. Wellington, 58 Me. 453. See See. 112. 183 Boiivier's Law Diet. "Delirium Tremens." LAW OF WILLS. 137 cases ^«^ The effect of the decree establishing the guardianships belongs under the subject of evidence, and will be discussed there.^^^ §116. Disease, great weakness, and approaching death. In cases where the testator is very weak from disease or accident, or where he is even at the point of death, the rules already given apply. Neither weakness nor approaching death of themselves render the testator incompetent to make a will. If in spite of his weakness of body, he has sufficient mental capacity to be able to know and understand the nature and extent of his property, the natural, proper objects of his bounty and the nature of the act which he is about to perform, he has sufficient capacity to make a valid will.^^^ So where his physical ailments cause drowsiness and stupor he may still possess understanding sufficient to make his will.^"" But if he is so weak in body that his mind is not capable ^of grasping these necessary facts, he can not make a valid will.^^^ Thus it is perfectly possible for one who does not suffer from any mental disease of any kind to be deprived by physical 1 *n 190 weakness of the power to make a will. 185 Roe V. Nix, 62 L. J. P. 36; [1893] P. 55; 1 R. 472; 68 L. T. 26. In re Johnston's Estate, 57 Cal. 529; Lucas v. Parsons, 27 Ga. 593; Harrison v. Bishop, 131 Ind. 161; Stevens v. Stevens, 127 Ind. 560; In re Fenton's Will, 97 lo. 192; Linkmeyer v. Bandt, 107 To. 750; Stone v. Damon, 12 Mass. 488; Breed v. Pratt, 18 Pick. (Mass.), 115; Leonard v. Leonard, 14 Pick. (Mass.), 280; Rice v. Rice,- 50 Mich. 448 ; Brady v. McBride, 39 N. J. Eq. 495-; Wadsworth v. Sharp- steene, 8 N. Y. 388; Hoopes' Estate, 174 Pa. St. 373; (obiter) Hamilton v. Hamilton, 10 R. I. 538; Bobinson v. Robinson, 39 Vt. 267; Slinser's Will, 72 Wis. 22. 186 See Sec. 402. 187 Ball V. Kane, 1 Penne. (Del.) 90; Hall v. Hall, 18 Ga. 40; Beve- lot V. Lestrade, 153 111. 625; Hath- orn V. King, 8 Mass. 371; Ayres v. Ayres, 43 N. J. Eq. 565; O'Brien V. Dwyer, 45 N. J. Eq. 689 ; James V. Sutton, 36 Neb. 393; Bain v. Cline, 24 Oreg. 175; Gorkow's Es- tate, 20 Wash. 563. 188 McLaughlin v. McLellan, 26 Can. S. C. 646. 189 Copeland v. Copeland, 32 Ala. 512: Gurley v. Park, 135 Ind. 440; Manatt v. Scott, 106 To. 203 ; John- son v. Cochrane (N. Y.) (1899) 54 N. E. 1092; Tucker v. Sandage, 85 Va. 546 ; Walters v. Walters, 89 Va. 849. 190 Baptist V. Baptist, 23 Can. Sup. 37; Manatt v. Scott, 106 lo. 203; Mitchell v. Corpening, 124 N. Car. 472 ; Chapell v. Trent, 90 Va. 840. 188 LAW OF WILLS. "Where the disease assumes the form of some lesion of the nervous system — such, for example, as is popularly classed as paralysis — the effect upon the mind is likely to be more marked than in case of diseases affecting other parts of the body. Still, neither paralysis nor any kindred disease of itself disqualifies a testator to make a will,^'^^ but paralysis may progress so as to destroy testamentary capacity, especially when complicated with old age.^^^ §117. The deaf, dumb and blind. At the common law such persons as were bom deaf, dumb and blind were classed as non compotes; for, "as they have always wanted the common inlets of understanding," they "are incapable of having animum testandi, and their testaments are therefore void." ^^'^ Also those who were born deaf and dumb were always regarded, at the old common law, as lacking ca- pacity to make a valid will.^^^ This theory is notoriously untrue. Many persons who are bom deaf and dumb are capable of great intellectual exertion, and are as competent in reality to make wills as their more fortunate brethren. Those who are born deaf, dumb and blind have far greater difficulty in communicating with the outside world, as touch is practically the only sense available to them ; yet the cases of Laura Bridgman, in the early part of the nine- teenth century, and Helen Kellar, in the latter part, have proved beyond doubt that those who are deaf, dumb and blind from birth may possess vigorous and powerful minds. Accordingly, the courts have gradually modified the old com- mon law rule. The first step was to treat the rule that deaf and dumb persons could not make a will as a rule of ptima facie presumption only, subject to be rebutted by evidence of capac- ity.^ ^^ The modern rule is that a deaf and dumb person has, isi Kothrock v. Rothrock, 22 Ore. '93 Bla(*k. Com. 2, p. 497. 551; 30 Pae. 453. is* Coke on Littleton, 42b; Yong 192 Mendenhall v. Tungate, 95 Ky. v. Sant, 1 Dyer, 55b. 208; Rothrock v Rothrock, 22 Ore. iss Potts v. House, 6 Ga. 324; 551 : 30 Pac. 453. Perrine's Case, 41 N. J. Eq. 409. LAW OF WILLS. 139 as a matter of law, as much mental capacity to make a will as any other person, and. that there is no presumption of his in- capacity, whether he were born deaf and dumb or subsequently became so.-^°^ And those who are born deaf, dumb and blind are not on that account to be considered at modern law as lack- ing testamentary capacity.-' ^'^ Those who were not born deaf and dumb, but became so by accident subsequent to birth, were not regarded by the old com- mon law as incapacitated to make a will.^^^ There has never been any serious question that one who is blind is, as far as such disability is concerned, perfectly competent to make a will.^^^ Similarly a testator who is deaf and blind may make a will, whether his infirmities arise from disease, congenital defects or old age.^*^*^ There is, of course, in the case of the deaf and dumb, and of the blind, a chance for imposition and deceit in making wills. This, however, belongs under the topics of "Execution," "Fraud," "Mistake" and "Undue Influence," rather than under the topic of "Mental Capacity." 196 Goods of Geale, 3 S. & T. 430 ; 33 L. J. P. 125; 12 W. R. 1027; Potts V House, 6 Ga. 324. But if the evidence fails to show that the deaf and dumb person could com- municate his wishes by intelligi- ble signs, the court will not admit his will to probate. Goods of Ows- ton, 2 Sw. & Tr. 461; 31 L. J. P. 177; 6 L. T. 368; 10 W. R. 410. 197 Weir V. Fitzgerald, 2 Bradf, (N. Y.) 42 (67). 198 Yong V. Sant, 1 Dyer 56a, note. In this case it was said that- if by accident one born with all his senses were to become deaf, dvimb and blind he must henceforth be treated as non compos mentis. 199 Edwards v. Fincham, 4 Moore P. C. 198; Mitchell v. Thomas, 6 Moore P. C. 137; King v. Berry, Ir. Rep. 5 Eq. 309; Clifton v. Mur- ray, 7 Ga. 564; Martin v. Mitchell, 23 Ga. 382; Reynolds v. Reynolds, 1 Spears (S. Car.) 253; Ray v. Hill, 3 Strob. (S. Car.) 297; Neil v. Neil, 1 Leigh (Va.) 6. Though if the evidence makes it appear that a blind man signed the will without understanding its contents it should be refused probate. Dufar V. Croft, 3 Moore P. C. 136. (In this case the mental capacity of the testator was very doubtful ) . 200 A testator over a hundred years old, and blind and deaf, can make a will. Wilson v. Mitchell, .101 Pa. St. 495. Under same circumstances a man of eighty-five could make a will. Naptie's Estate, 134 Pa St. 492; Sehr V. Lindemann, Mo. (1899) ; 54 S. W. 537. 140 LAW OF WILLS. CHAPTER IX. MISTAKE, FRAUD, UNDUE INFLUENCE AND DURESS. §118, Classes of mistake. The doctrine of mistake, in the law of wills, is one of com- paratively slight importance, since it is rarely invoked. The facts which give any opportunity to apply the doctrine of mis- take nearly always so involve fraud and undue influence that these different doctrines are all involved in the same case.-^ In the cases where mistake can be separated from these other principles of law, it appears that mistake, as applied to wills, must be divided into mistake in the execution, and mistake in inducement causing the will, but without any mistake as to execution. §119. Mistake in execution. Mistake in the execution exists where, from some cause, the testator executes a will of whose nature and contents he is in fact ignorant. This mistake is generally due to fraud or lack of capacity, or both. The effect of mistake in execution, no matter what its cause, is to avoid the will, since the vdll is executed without the animus testandi? iCoghill V. Kennedy, 119 Ala. 2 Waite v. Fri-sbie, 45 Minn. 3G1 ; 641 ; 24 So. 459 ; Haines v. Hayden, Hildreth v. Marshall, 51 N. J. Eq. 95 Mich. 332; Budlong's Will, 126 241: Baker v. Baker, 102 Wis. N. Y. 423. 226; 78 N. W. 453. 141 LAW OF WILLS. Thus, where a testator signed his will, thinking that it was a direction for his burial, such will was held invalid.^ §120. Mistake in inducement. A mistake in inducement exists where testator is mistaken as to facts which cause him to draw up and execute the will that he does, where he intends to execute the very instrument that he did. hut where he would not have executed such a will with full knowledge of the facts. The rule upon this subject is that a will is valid, even though made by reason of a mistake of fact.^ Two reasons may be assigned for this rule. First The statute upon the subject of wills does not pro- vide that any mistake of fact shall avoid the will, but, on the contrary, expressly provides that a will executed by a testator of full age, sound and disposing mind and memory, and not under restraint, shall be valid. To add to these requirements that testator must not be mistaken as to a material fact is to legislate, not to construe the statute. Second. To inquire into what testator would have wished to do if he had kno^^al the material facts, and to determine just to what extent his will is affected by the mistake is a task of intolerable diiSculty. Xo one prol)ably ever made a will with absolute and perfect knowledge of every fact which might affect his disposition by will; and to determine the exact effect of each mistake is a task upon which no court could enter. Ac- cordingly it is held that a mistake even upon so vital a matter as the hostility of the heirs towards testator,^ or the legitimacy sHildreth V. Marshall, 51 N. J. 5 Kidney's Will, 33 N. B 9 ; fl^ ^ Ruffino'sEstate, lieCal. 304; Kim- ^'"Ruffino's Estate, 116 Cal. 304; ^-ly's Appeal^ 68 Conn^ ^.^ SaU^ Wenning v. Teeple, 144 Ind. 180: - ^ ^ ^' ^« ^;^ ^^^'^'^f ^3^ 41 N. E. 600; Livingston's Will (N. v. Jordan, 50 N. J- ^q^ 'f' J Prerog.), 37 Atl. 770: Stewart Martin v. Thayer, 37 \^ Va. 38 I: Jorda:, 50 N. J. Eq. 733: Clapp ^aynard v Ty e. 16 Mass. 107, V. Fullerton. 34 N. Y. 190: Martin White's Will, 121 N. \. 406. V. Thayer, 37 W. Va. 38. 142 LAW OF WILLS. of his own child,^ or a mistake as to the fact that his supposed wife really had a former husband living and not divorced '^ is not such a mistake as to avoid the will. The cases where the mistake is the result of misrepresenta- tion, and is itself only a means of exercising undue influence, must be distinguished from these cases of mistake alone.^ §121. Mistake. — Statutory rule. In Georgia, by statute, the rules here given have been changed in part, and any mistake of fact on the part of testator as to the existence of conduct of an heir invalidates a will as far as such heir is concerned ; ^ and the heir need not show that but for such mistake he would have taken under the will.^*^ But where contestant had claimed to be the nearest relative of tes- tator, and it appeared that testator knew of his claims, and had ample opportunity to determine whether the claim was well founded or not, it was held that, even if testator were in error in believing that such person was not his nearest relative, this was not a mistake of fact as to the existence of an heir within the meaning of the statute.^ -^ A mistake as to the property owned by testatrix and a dis- pute over certain rents arising therefrom, which the beneficiary received as his o^^m, and which testatrix at once charged up to him as advancements, is not such a mistake under this statute as to affect the validity of the will.-^^ Statutes avoiding the will where testator was mistaken as to the existence of a ild are quite common.^ ^ 6 Kidney's WiH, 33 N'. B. 9; » Jones v. Grogan, 98 Ga. 552. Smith V. Smith, 48 N. J. Eq. 566; lo Mallery v. Young, 98 Ga. 728. Clapp V. Fullerton, 34 N. Y. 190. n Young v. Mallory (Ga.) (1900), 7 Wenning v. Teeple, 144 Ind. 35 S. E. 278. 189 ; 41 N. E. 600. 12 Meeks v. Lafley, 99 Ga. 170. 8 See Sec. 128; Coghill v. Ken- i3 See See. 291. nedy, 119 Ala. 641; 24 So. 459; •Haines v. Hayden, 95 Mich. 332; Budlong's Wili, 126 N. Y. 423. LAW OF WILLS. 148 §122. Fraud. — General discussion and classification. Fraud is in its nature closely allied to undue influence, and in many cases where the issue to be tried is devisavit vel non, it is practically impossible to distinguish the two, as the same evidence often tends to support each charge.-^ ^ The confusion is increased by the theory sometimes expressed by the courts that undue influence is to be treated as a kind of constructive fraud.-^^ But, while allied to undue influence, fraud- is not the same thing. Undue influence is essentially overpowering the will ; fraud is deceit. Such considerations have led courts, where the rules of pleading permit of a dis- tinction between fraud and undue influence in making up the issues, to hold that fraud is not the same thing as undue in- fluence, and that an allegation of the one does not include an allegation of the other.^^ Like mistake, fraud is to be classified under the two general heads of fraud in the factum, or execution, and fraud in the inducement. §123. Fraud in execution. Fraud in the execution exists where a person is, by wilfully false statements of fact made to him with intent to deceive him and resulting in his actual deception, induced to execute an instrument of whose nature and contents he is ignorant.-''^ When the testator signs an instrument misapprehending its nature and contents through fraud it is equally invalid, whether he thinks he is signing a different sort of instrument from a will,^^ or whether he knows that he is signing a will, but is deceived as to its contents.-^ ^ i4Coghill V. Kennedj^ 119 Ala. Waite v. Frisbie, 45 Minn. 3G1 ; 041, 24 So. 459; Lyon v. Dada, 111 Burns's Will, 121 N. Car. 336; 28 Mich. 340; 69 N. W. 654. S. E. 519; Hildreth v. Marshall, 51 13 Coghill V. Kennedy, 119 Ala. N. J. Eq. 241 ; Chappell v. Trent, G41: Shipman v. Furness, 69 Ala. 90 Va. 849; Baker v. Baker, 102 555; Smith v. Ilenline, 174 111. Wis. 226 ; 78 N. W. 453. 184. 18 Hildreth v. Marshall, 51 N. J. i6\vilson's Estate, 117 Cal. 262. Eq. 241. 17 Smith V. Henline, 174 111. 184; i9 Waite v. Frisbie, 45 Minn. 361. 144 LAW OF WILLS. Thus, where testatrix had caused a will to be prepared bj which property was left to her brothers in trust for a grand- child, and one brother and an attorney whom testatrix trusted completely suggested that the trust might be invalid, and sug- gested the omission of the clause creating the trust, without explaining that the effect of such omission was to give the brothers the estate absolutely, to the exclusion of the grand- child, it was held that this was such fraud as to invalidate the will.-*^ And in another case one of the natural beneficiaries induced testatrix to leave him her personal property by will and her real estate to the other beneficiaries, a disposition which was at the time a fair one, and afterward, in pursuance of his previous plan, he induced testatrix to convey her real estate to him by deed, taking his notes in payment. She made these transfers, thinking by his statements that the equal disposition made in the will was imaffected. On her death he claimed the real estate by deed, and the personal property, including his o^vn notes, by the will.^^ §124. Fraud in inducement. Fraud in the inducement consists of wilfully false statements of fact which are intended to and do induce testator to execute the instrument which he does execute, with full knowledge of its nature and contents. Where the fraud is in the inducement as distinct from the execution, the same considerations apply to the validity of a will obtained thereby as to a will executed under a mistake of fact. The Statute of Wills makes no pro- vision for fraud; and the difficulties of inquiring into the exact effect of deceit upon the mind of the testator and the extent to which it influenced him are intolerable. It is held, accordingly, that fraud in the inducement alone, where not amounting to undue influence, does not vitiate the will.^^ 20 Lyon V. Dada, 111 Mich. 340. 627; 24 So. 374; Orth v. Ortli, 145 21 Such conduct was held to Ind. 184; 44 N. E. 17; Wenning amount to undue influence. Jones v. Teeple, 144 Ind. 189; 41 N. E. V. Simpson, 171 Mass. 474; 50 N. 600; Stewart v. Jordan, 50 N. J. J, 94Q Eq. 733; Salter v. Ely, 56 N. J. 22 Moore v. Heineke, 119 Ala. Eq. 357. LAW OF WILLS. 145 §125. Undue influence. — Definition. Undue influence is "such as in some measure destroys the free agency of testator and prevents the exercise of that dis- cretion which the law requires that a party should possess." -^ It consists in such influence, overpersuasion, coercion or force as destroys the free agency and will power of testator.^"* Another definition, involving the same idea, is that undue influence is that ascendency which prevents testator from ex- ercising his unbiased judgment.*^'^ Another definition is "Any improper or wrongful constraint, machination or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not have done or forborne had he been left to act freely." ^'^ Other definitions given by the courts involve substantially the same idea.^'^ The rules for determining what undue influence is are the same for wills executed in pursuance of a power as for wills disposing of testator's own property.^^ §126. Theory of undue influence. The theory underlying the doctrine of undue influence is that the testator is induced by the various means employed, which are hereafter discussed, to execute an instrument which, though in outward form and appearance his, is, in reality, not his will, 23 Johnston v. Armstrong, 97 Ala. 27 Shipman v. Furness, 69 Ala. 731; 12 So. 72. 555; Gilbert v. Gilbert, 22 Ala. 24 Steele V. Helm, 2 Marv. (Del.), 529; Potts v. House, 6 Ga. 324; 237; Eiley v. Sherwood, 144 Mo. Sullivan v. Foley, 112 Mich. 1; McFadin v. Catron, 138 Mo. - 70 N. W. 322 (1) ; Turner v. Chess- 120 Mo. 252. man. 15 N. J. Eq. 243; Gardiner ^' 25Coghill V. Kennedy, 119 Ala. Gardiner, 34 N. Y. 155; O'Neall v. 641; 24 So. 459. Farr, 1 Rich. (S. Car.). 80; Chap- 26 Smith V. Henline, 174 111. 184. pel v. Trent. 90 Va. 849: Barbour (The court in this case spoke of v. Moore, 4 App. D. C. 535; Knox undue influence as a sort of con- v. Knox, 95 Ala. 495; 11 So. 125. structive fraud which the court 28 Coleman's Estate, 185 Pa. St. 354 197 would not undertake to define by 437. fixed words.) 146 LAW OF WILLS. but the will, wish and desire of some other person. Such in- strument, therefore, though signed by the testator, is not ex- ecuted by him animo testandi. This important and inherent element is lacking.^^ Undue influence is to be distinguished, furthermore, from lack of capacity. It is true that a person who lacks mental capacity to make a will does not execute -a will animo testandi. In both undue influence and lack of mental capacity this inherent element is wanting. But where testator lacks mental capacity he is not capable of entertaining the animus testandi. In cases of mere undue influence the testator is capable of en- tertaining the animus testandi, but on account of the circum- stances he does not in fact entertain it. This distinction between lack of capacity and undue influence is sometimes expressed by saying that undue influence presup- poses and requires mental capacity as essential to its existence.^" This statement is true in the following sense: If testator has mental capacity, the question of undue influence may become of vital importance as the only available means of attacking the will, while if the testator has not mental capacity, there is no need of invoking the doctrine of undue influence to overthrow the will.3i In determining a case involving undue influence, the question is not what effect the influence actually exerted would have had upon an ordinarily strong and intelligent person, but what effect the influence actually exerted had upon the person on whom it was exerted, taking into consideration the time and place and all the surrounding circumstances.^^ 29Krankel v. Krankel (Ky.). 50 ley v. Park, 135 Ind. 440; Griffith S. W. 863; Campbell v. Barrera v. Diffenderfer, 50 Md. 480; Shailer (Tex. Civ. App.), 32 S. W. 724. v. Bumstead, 99 Mass. 112; Sullivan 30 Orchardson v. Cofield, 171 111. v. Foley, 112 Mich. 1; 70 N. W. 14; Gwin v. Gwin (Ida.), 48 Pae. 322; Rollwagen v. Rollwagen, 63 N. 295; Thompson v. Kyner, 65 Pa. Y. 504; Perrett v. Perrett, 184 St. 368. Pa. St. 131 ; Reichenbach v. Rud- siManley's Exr. v. Staples, 65 dach, 127 Pa. St. 564; Knox v. Vt. 370. Knox, 95 Ala. 495; 11 So. 125. 32 Olmstead v. Webb, 5 App. D. Contra, St. Leger's Appeal, 34 Conn. C. .38; Henry v. Hall, 106 Ala. 84; 434. Mooney v. 01 sen, 22 Kan. 69 ; Gur- LAW OF WILLS. ^^* Thus, misrepresentations and attacks upon natural objects of testator's bounty where testator was well and strong and within reach of the protection of those who were thus denounced, were held not to amount to undue in- fluence ; ^^ while similar misrepresentations and attacks upon the natural objects of bounty made to a testator who is sick and unable to ascertain the truth for himself may be undue influence ;2^ and urgent solicitation, while not usually undue influence, may amount to such where testatrix is at the point of death and utterly exhausted when she makes her will.^^ While in the sense above given, undue influence presupposes capacity, nevertheless the question of the mental and physical condition of testator is a matter of great importance. This topic belongs under "Evidence" and will be discussed there.'^^ §127. Elements of undue influence. As the name implies, undue influence is a form of influence exerted upon testator whereby he is induced to make the will that he does in fact make. Accordingly, if it can be sho\^ai that the alleged influence did not operate upon the mind of testator and induce him to make the will which he made, such alleged influence is clearly not undue influence.^'^ Thus, where the person. A, who was claimed to exert the undue influence, wished to be the beneficiary under testator's will, and testator, instead, left his property to A's daughter and niece, to A's great anger, it was held that no undue in- 33 Salter v. Ely, 56 N. J. Eq. 357 ; Tyler, 1G8 Mass. 107 ; In re Wills' Dumont v. Dumont, 46 N. J. Eq. Estate, 67 Minn. 335; Maddox v. 223. Maddox, 114 Mo. 35; Doherty v. siCoffhill V. Kennedy, 119 Ala. Gilmore, 13G Mo. 414; Norton v. 041; 24 So. 459. Paxton, 110 Mo. 456; Berberet v. 35Gurley v. Park, 135 Ind. 440; Berberet, 131 Mo. 399; McFadin v. Chappell V. Trent, 90 Va. 849. Catron, 138 Mo. 197; Hampton v. 36 See Sec. 428. Westcott, 49 N. J. Eq. 522; Miller 37Ethrid9 Hurley v. O'Brien, 34 Oreg. 58. "EveVwill is the product of *^ ^°^ ^- ^^'^^^^l"' l^l^'f- f,!" some influence. The influence which ^* Defoe v. Defoe, 144 Mo. 458. arises from legitimate family and so- LAW OF WILLS. ^^^ formation as to unkind and unpleasant remarks concerning testatrix made by her sister.^^ In order to amount to undue influence, the advice, persuasion, entreaty and the like must therefore, first, actually influence testator to make the will that he does make ; and second, exert such influence as is too power- ful for the mind of testator Uy resist."**^ It is, therefore, error to charge that the jury must not consider the degree or extent of the undue influence, and that it was sufiicient to invalidate the will, however slight.^ ^ §128. Classes and forms of undue influence. Undue influence may be divided into actual or direct undue influence, and presumptive or constructive undue influence ; the distinction between the two classes being in the manner of prov- ing the undue influence. Actual or direct undue influence is that which is proven by showing specific acts on the part of the party exercising undue influence, whereby the mind of tes- tator is overpowered. This effect may be produced in several ways: (1) Appeals to the affection and emotions of testator, solic- itation and persuasion may be carried to such a degree as to overpower his mind, and in such case will amoimt to undue influence.^ ^ 45 Campbell v. McGuiggan (N. J. L. J. 179; Frost v. Dingier, 18 Pa. Prer.), 34 Atl. 383. St. 259; Pensyl's Est., 157 Pa. 46 Bulger V. Ross, 98 Ala. 2G7 ; St. 405 ; Robinson v. Stuart, 73 Tex. Eastis V. Montgomery, 93 Ala. 293; 267; Trezevant v. Rains, 85 Tex. 9 So. 311; Carpenter's Estate, 94 329 ; Chappell v. Trent, 90 Va. 849 ; Cal. 406 ; McDevitt's Estate, 95 Cal. Davis v. Strange, 86 Va. 793; 8 17 ; Spencer's Estate, 96 Cal. 448 ; In L. R. A. 261. reCarriger, 104Cal.81;/nreLang- 47 Riley v. Sherwood, 144 Mo. ford, 108 Cal. 008; In re Calkins-, 354. 112 Cal. 296; Bevelot v. Lestrade, 48 Higginbotham v. Higginbotham, 153 111. 635; Storey's Will, 20 111. 106 Ala. 314; Gwin v. Gwin, Ida. App. 183; Denning v. Butcher, 91 48 Pac. 295; Smith v. Henline, 174 lo. 425; Grove v. Spiker, 72 Md. 111. 184; Bevelot v. Lestrade, 153 300; Maynard v. Vinton. 59 Mich. 111. 625: Barlow v. Waters, — Ky. 155: Suliivan v. Foley, 112 Mich. 1 : — :28 S. W. 785; Rivard v. Rivard, Mitchell's Estate. 43 Minn. 73: Mc- 109 Mich. 98; Gordon v. Burris, Faddin v. Catron, 138 Mo. 197; 141 Mo. 602; Miller v. Oestrich, Thompson v. Ish, 99 Mo. 160: 1.57 Pa. St. 264; Perrett v. Perrett, Hampton v. Westcott, 49 N. J. Eq. 184 Pa. St. 131. .522; Carroll v. House, 14 N. J. 150 LAW OF WILLS. (2) Flattery may be of such sort as will amount to undue in- fluence. This is usually combined with deceit and solicita- tion.^^ (3) Fraud and deceit may be made the means whereby testator's mind is overpowered, in which case they will amount to undue influence.^° Fraud is itself, as we have seen,^^ essentially different from undue influence. Still, fraud in the inducement, while in itself not sufiicient to invalidate the will, may so affect the mind of testator as to amount to undue influence. Thus, false statements as to the conduct of those who are the natural ob- jects of testator's bounty,^^ or as to legitimacy of testator's child^^ may amount to undue influence. False statements as to the identity and character of the beneficiary under the will may amount to undue influence.^'' Presumptive or constructive undue influence is that which is inferred from the circumstances of the case, and the rela- tions of the parties. Undue influence is peculiarly a question of fact. The rules of substantive law on this subject are neither many nor complicated. The greater number of ques- tions to be determined in these cases are those upon evidence. For these reasons the subject of presumptive undue influence will be considered under the subject of "Evidence of Undue Influence." ^^ 49 0rchardson v. Cofield, 171 111. Mich. 340; Budlong's Will, 126 N. 14; Riley v. Sherwood, 144 Mo. Y. 423; Gordon v. Burris,, 153 Mo. 354. 223 ; 54 S. W. 546. As, where among other means of ^i See Sees. 122, 123 and 124. undue influence, the beneficiary, who 52 Coghill v. Kennedy, 119 Ala. represented himself to be a being 641, 24 So. 459; Higginbotham v. like Christ, agreed to dedicate to tes- Higginbotham, 106 Ala. 314; Defoe tatrix the book whereby he was to v. Defoe, 144 Mo. 458 ; Salter v. regenerate the world. Orchardson Ely, 56 N. J. Eq. 357; Budlong's V. Cofield, 171 111. 14. Will, 126 N. Y. 423. 50 Coghill V. Kennedy, 119 Ala. 53 Haines v. Hayden, 95 Mich. 641 ; 24 So. 459 ; Higginbotham v. 332. Hi-ginbotham, 106 Ala. 314; Or- 54 Orchardson v. Cofield. 171 111. ehardson v. Cofield, 171 111. 14; 14, distinguishing Whipple v. Eddy, Jones V. Simpson. 171 Mass. 474; 161 111. 114. 50 N .E. 940 ; Haines v. Hayden. 55 See Chapter XIX, Sees. 408- 95 Mich. 332; Lyon v. Dada. Ill 421. LAW OF WILLS. 151 §129. Who may exert undue influence. The undue influence is generally exerted by the beneficiary under the will ; but this is not necessary. If influence is ex- erted to such a degree as to be undue, by one who is not a beneficiary under the will, the will caused by such undue in- fluence is as invalid as if the influence were exerted by one of the beneficiaries.^^ At the same time it is true that "It is a strong circumstance tending to show the absence of any undue influence when the proof fails to connect the beneficiary in the will in any way with the making of the will either by agency, procurement, suggestion, solicitation or knowledge of its execution." ^"^ §130. Time at which undue influence may exist. In order to avoid the will, it must be shown that the undue influence operated at the time that the will was made, and caused its execution.^ ^ Thus, where the undue influence was exercised before the will was executed, but such influence per- sisted until after the execution of the will, it vitiated the will ; ^^ while influence exerted after the will was made can not affect its validity, no matter how overpowering ; *^^ even if such subsequent influence goes to the extent of preventing tes- 56 "It is of course equally fatal Eckert v. Flowry, 43 Pa. St. 46; to the validity of a will whether Keichenbach v. Ruddach, 127 Pa. the undue influence was exerted by St. 564 ; Gable v. Rauch, 50 S. Car. proponent or another person." Bar- 95; Campbell v. Barrera (Tex. Civ. ney's Will, 70 Vt. 352. App.), 32 S. W. 724. To the same effect are Coghill v. "Undue influence, however used, Kennedy, 119 Ala. 641; Drake's must, in order to avoid the will, Appeal, 45 Conn. 9; Smith v. Hen- destroy the free agency of the tes- line, 174 111. 184. tator at the time and in the very 5" Harp V. Parr, 168 111. 459, act of making the testament." Trost citing Goodbar v. Lidikey, 136 Ind. v. Dingier, 118 Pa. St. 259. 1; Douglass's Estate, 162 Pa. St. 59 Overall v. Bland (Ky.), 12 S. 567. W. 273. 58 Kaufman's Estate, 117 Cal. 6o Haines v. Hayden, 95 Mich. 288;Poolerv.Cristman, 145 111.405; 332: Riley v. Sherwood, 144 Mo. Guild V. Hull, 127 111. 523; Brown- 354; Gable v. Rauch, 50 S. Car. field V. Brownfield, 43 111. 147; 95. 152 LAW OF WILLS. tator from revoking his will when he wishes to do so.^^ In- fluence exerted before the will was made, not shown to have persisted to the date of the execution thereof, does not of itself avoid the will.*^^ §131. Effect of undue influence. Undue influence avoids such part of the will as is caused thereby. If the whole will is the product of undue influence it is thereby entirely avoided.''^ Thus fraud amounting to undue influence vitiates a will like any other form of undue influence.^^ Where, however, it can be sho\vn that a part of the will was caused by undue influence, and that the rest of the will was not caused thereby, and the part of such will caused by undue influence can be separated from the rest, leaving it intelligible and complete in itself, it is held that only such part of the will as is caused by undue influence is invalid, and the rest is valid.^^ §132. Injustice of will not undue influence. A testator of full age, sound and disposing mind and mem- ory, and not under restraint, may make such disposition of his property as does not conflict with the law. The fact, then, 81 Floyd V. Floyd, 3 Strobh. ( S. 65 Trimblestown v. D'Alton, 1 Dow- Car.), 44. and Clark, 85; Allen v. McPherson, 62 Mitchell V. Donahue, 100 Cal. 1 H. L. Cas. 191 ; Henry v. Hall, 106 202; Batchelder v. Balchelder, 139 Ala. 84; Fastis v. Montgomery, 93 Mass. 1; Ketchum v. Stearns, 76 Ala. 293; Lyons v. Campbell, 88 Mo. 396. Ala. 462; Florey v. Florey, 24 Ala. 63 Knox V. Knox, 95 Ala. 495; 248; Harrison's Appeal, 48 Conn. 11 So. 125; Smith v. Henline, 174 202; Morris v. Stokes, 21 Ga. 552; 111. 184; Rivard v. Rivard, 109 Randolph v. Lampkin, 90 Ky. 551; Mich. 98; Riley v. Sherwood, 144 10 L. R. A. 87. Mo. 354; Perrett v. Perrett, 184 "The jury upon sufficient proof Pa. St. 131; Barney's Will, 70 Vt. may strike out his legacy and estab- 352. lish the balance of the will so that 64 Higginbotham v. Higginbotham, the will may be good as to one party 106 Ala. 314; Gordon v. Burris and bad as to another." Morris v. 153 Mo. 223; 54 S. W. 546; Bud- Stokes, 21 Ga. 552. long's Will, 126 N. Y. 423. 153 LAW OF WILLS. that a testator with such qualifications makes a foolish, un- natural or unjust will, does not show that undue influence caused the will.^'^ Thus the fact that testator left more to his children by his second marriage than those by his hrst marriage does not establish undue influence on the part oi his second wife.^^ So the fact that testator excludes his wife and children entirely from all of his property that he could does not show that undue influence necessarily produced the will-'' . A \n unjust will executed on account of strong and unrea- sonable prejudices of testator is not on that account to be reo-arded as the product of undue influence.^^ So a will due to" the strong prejudices of the testator against the Roman Catholic religion was held not to be attributable to undue influence where the will on this account excluded his nieces, one of whom had married a Catholic and the other was en- aao'ed to one, even though testator was angered at receiving a letter from a nephew containing false statements about the conduct and behavior of these niecesJ^ A will caused by 66 Burney v. Torrev, 100 Ala. 157 ; e^ Nicewander v. Nicewaiider, 151 Chandler v. Jost, 9G Ala. 596; In 111. 156; Sehr v. Lindemann, Mo. McLane-s Estate, 21 D. C. 554; 1899; 54 S. W. 537. Kaenders v. Montague, 180 111. 300 ; - Kessinger v. Kessmger 37 Ind. tlollenbeck v. Cook, 180 111. 65; 341; ^^-^^^ ^T" 110 N Y Pooler V. Cristoan, 145 111. 405; Eq. 801; In re Mondorf, 10 N. 1 Conway v. Vizzard, 122 Ind. 266; 450; Monroe -/^f ^'^ ^L^^- g'^ In re Merriman, 108 Mich. 454; 302; Dean v. Negley, 41 Pa^ St. Maddox V. Maddox, 114 Mo. 35; 312; McClure v McClure 8^ Tenn Farmer v. Farmer, 129 Mo. 530; 173; Kudy ^-^^^.c^' ^' J- f;." T 1 ^ !^n isr T Ea 177 ; Main v. Rider, 84 Pa. bt. Zi/ , Stewart v. Jorda^n, 50 N. X Eq. ^^^ ^^.^_ ^^^ . .^ 733; Bennett v. Bennett, 50 JSI. J. '-uuei Vn 439- James v. Sutton, 36 Neb. N. \A . 240. l^q. i6J, uaiut^s 69 Mitchell's Estate, 43 Mmn. <3; 393; Dohertvv. Gilmore, 136 Mo. mucne rn N^ T Ea Kaufman v. Caughman, 49 b. e.ar. 0 Mo Dobie V. Armstrong, 160 N. Y. 5»4 , ^. Sr :: M^rro"; \u l. .ox v. M^^^n, ^O. W.^. .«. , so N 35- Arnault v. AniaiiU, 52 N. J. W. 921. rn n T Eq. 801; Smith V. Smith. 48 N. J. "Stewart v. .Jordan, 50 N. J. Eq. 566; Trezevant v. Rains, 85 Eq. 733. Tex. 329; Martin v. Thayer, 37 W. Va. 38. 154 LAW OF WILLS. dislike of testator's son, due to a long standing quarrel with testator's wife, in which the son sided with his mother is not, of course, the result of undue influence.'^ §133. Duress. Duress, in this connection, may be. defined as the use of coercion or force to such a degree that it destroys the free agency and will power of testator."^^ Duress and undue in- fluence are not infrequently confused, owing to a fondness for similes in judicial opinions. Thus it has been said that the influence to be imdue must amount to a moral coercion.'^^ Duress is not, however, a necessary element of undue in- fluence; and it is error to instruct the jury that influence must amount to force or coercion in order to affect the will as undue influence. ''^^ Still less is physical force a synonym for undue influence.'^ ^ But the exercise of actual duress, which causes testator to make a will that he would not. otherAvise have made, will render the will invalid. This is occasionally expressed by saying that it will amount to undue influence. Thus, threats, force and violence exerted toward testator to induce him to make his will, will if successful amount to undue influence; or more exactly, will avoid the will.'^'^ Threats and violence towards those closely related to testator, who are the natural objects of his bounty, will, if they cause TiDobie V. Armstrong, 160 N. Y. Ala. 157; Eastis V. Montgomery, 584. 93 Ala. 293; Knox v. Knox, 95 72 Riley v. Sherwood, 144 Mo. Ala. 495; Bancroft v. Otis, 91 Ala. 354; McFadin v. Catron, 120 Mo. 279; Chappell v. Trent, 90 Va. 252. 849. 73 "It must go to the extent of Thus a charge that undue in- dfipriving the testator of his free fluenoe "must amount to force and agency and amount to moral coer- coercion" to make the will invalid Clon which he is unable to resist." was held reversible error. Chap- Peery v. Peerv, 94 Tenn. 328, citing pell v. Trent, 90 Va. 849. Nailing v. Nailing, 2 Sneed, 630; 75 Estes v. Bridgeforth, 114 Ala. Wisener v. Maupin, 2 Bax. 342. 221. 74 Higginbotham v. Higginbotham, 76 Sullivan v. Foley. 112 Mich. 1; 106 Ala. 314; Estes v. Bridgeforth. Peery v. Peery, 94 Tenn. 328. 114 Ala. 221 ; Burney v. Torrey, 100 155 LAW OF WILLS. testator to make a will that he would not otherwi^ have made, render such will invalidJ'^ . In the law of wills duress is often classed under undue in- fluence ^« The sub-divisions of duress need not be considered here in detail. As far as the reported cases go it is believed that duress of the person of testator or of his family is the only form that has been presented for adjudication m the law of wills; duress of goods never having been discussed. .T Frye v. Jones, Ky. 24 S. W. 5; In the law of contracts however 95 KV 148; Capper V. Capper, 172 objection has been made to classmg I, Vcl \^ N E 98 duress in this way, though it has "^rnan 'v H^il 18 L. T. 152; been said "Duress is but the extrem. Haydock v. Haydock. 33 N. J. Eq. of undue if ---• Na^^-^l ^^^ 494 ; Layman v. Conrey, 60 Md. v. Wheelock, 52 0. S. 534. 286. 156 LAW OF WILLS. CHAPTER A. WHAT CAN BE DISPOSED OF BY WILL. §134. Property in general. We have seen that at common law no legal interests m real property could be devised ; and that there were originally se- rious limitations upon the power of disposing of personalty. These restrictions have gradually been swept away by statute until with certain limitations all the property rights belonging to testator which would have passed to his heirs, or his per- sonal representatives, had he died intestate, may pass by will. The language of most Wills Acts is that any person of specified qualifications 'having any property' may dispose of 'the same' by will and testament, executed in the form required by statute. Accordingly, it will be assumed that un- der modern statutes the power of disposition by will pertains to property as such except where limited by spex^ific statute, by the nature of the property, or by the interests of others in the property sought to be disposed of. §135. Ownership of property disposed of by wiU. 'No property can be disposed of by testator's will except such as belongs to testator,^ since no one can pass title to the property of another; unless, of course, in pursuance of a power giving him express authority to make such disposi- 1 Young V. Snow, 167 Mass. 287. LAW OF WILLS. ^^^ tion.2 Tims a married woman who is empowered Lj statute to devise her separate property, can not dispose of property accumulated during coverture by husband's labor, even thouo-h it is evidenced by notes and mortgages which the mar- vied woman has renewed in her own name.^ So one to whom support for life has been given can not dispose by will of any accumulations of income over and above such support. In accordance with this general principle, a testator can not devise his property free from any liens or encumbrances which he may have created thereon in his lifetime; such as an outstanding lease with option for a further lease.^ This principle is so self-evident that the mere statement would seem sufficient. There are, however, certain peculiar and interest- ing applications of the general rule arising in cases where property rights are misunderstood. It often happens that important and valuable property interests in the forms ot life insurance, dower, curtesy, homestead rights and commun- ity property are ignored, and dispositions of property by will are made without any reference to them. These special cases need further discussion. The proposition that testator can not dispose by will of the property rights of any but himself is so clear that no dispute ordinarily arises, except over the construction of the will which gives something of value to the person whose property interests testator has attempted to be- stow upon others. These questions are therefore generally presented under election.^ §136. Insurance policies. Testator can. not, by will, pass proceeds of insurance policies upon his OAvn life, though he has taken them out and paid the premiums, where the policies are by their terms payable to a specified person, and where testator has no power to change 2 See Chap. XXXII. ^ In re Kidd (1894), 3 Ch. Div. 3 Wehle V. Umpfenbach — Ky. — , 558. 2.3 S. W. 360. ' See Ch. XXXIV. i Kimball v. New Hampshire Bible Society, 6,5 N. H. 139; See Sec. 605. 168 LAW OF WILLS. tke beneficiary ;'' or has power to change in a specified manner which he has not seen fit to use; but a policy payable to in- sured's "executors, administrators and assigns" may be dis- posed of by will,^ or one in which the name of the beneficiary is purposely left blank.^ Where testator has a right to dispose of his policy by will, the fact that he also attempted to transfer the policy to the legatee, by a void assignment, does not prevent the will from taking effect.^" Where the insured may, by law, declare that a specified policy is in trust for his Avife, by a 'writing' identify- ing the policy, and thereby create such an interest in his wife that her claim is prior to that of her husband's creditors, a will may be such a writing ;^^ but where by the terms of the insurance policy, the policy is payable to the beneficiary named therein, unless the insured appoints a different payee by an order acknowledged before a justice of the peace, a will can not be a substitute for such an order, in order to pass the policy.^ ^ By special statute the beneficiary of the policy may bequeath his interest therein by testament.^ ^ §137. Dower, curtesy, and distributive share of personalty. Under the dower acts now in force a husband can not de- vise his land to others to the exclusion of his wife's dower 7 Block V. Association, 52 Ark. O. S. 561 ; Masonic Association v. 201; De Silva v. Supreme Council, Jones, 154 Pa. St. 107; Schardt v. 109 Cal. 373; Masonic Association Schardt, 100 Tenn. 276. V. Severson, 71 Conn. 719; Mar- » In re Davies (1892), 3 Cli. 63; tin V. Stubbings, 126 111. 387; Wil- Hartwig v. Schiefer, 47 Ind. 64; burn V. Wilburn, 83 Ind. 55; Hoi- 46 N, e. 75; Colder v. Chandler, land V.Taylor, 111 Ind. 121; Haine 87 Me. 63; Fox v. Senter, 83 Me. V. Iowa Legion of Honor, 78 lo. 295. 245; Weisert v. Muehl, 81 Ky. 336; o Hannigan v. Ingraham, 55 Hun, Colder v. Chandler, 87 Me. 63; 257. Daniels v. Pratt, 143 Mass. 216; lo Stoelker v. Thornton, 88 Ala. Pingrey v. Ins. Co., 144 Mass. 374; 241; 6 L. R. A. 140. Am. Legion of Honor v. Perry, 140 " McKibbon v. Feegan, 21 Ont, Mass. 580; Masonic Benevolent As- App. 87. sociation v. Bunch, 109 Mo. 560; 12 Mellows v. Mellows, 61 N. H. Mellows V. Mellows, 61 N. H. 137; 137. Arthur v. Odd Fellows' etc., Assn., 1 3 Harvey v. Van Cott, 71 Hun. 29 0. S. 557; Chareh v. Charch, 57 394: Small v. Jose. 86 Me. 120. LAW OF WILLS. 159 rights. This right is consummate upon the husband's death, and is inchoate upon the acquisition of the realty bj him during coverture. It has therefore a priority over a devise of such realty by the husband, and may be asserted by the wife against a devisee claiming under the husband's will.^* So a husband can not be deprived of similar interests in his wife's realty without his consent.^ ^ This consent is not nec- essarily indorsed on the will. It may be given irrevocably by an ante-nuptial contract.^ ^ A husband can not by testa- ment, in some jurisdictions, dispose of his personalty to the exclusion of his wife's distributive share of the same.-^''^ In other states, however, the testator may by will exclude his wife from share in his entire personal estate.-^ ^ Dower, cur- tesy and distributive share of personalty are at modern law creatures of the local statutes; and the power of a testator to dispose of such rights by will is, therefore, in each juris- diction peculiarly a matter of local policy dependent upon the local statutes. §138. Homestead rights. Under modern legislation, in some states, the house and land, which constitute the family residence, is not only ex- empted in some cases from forced sale, but is appropriated after testator's death to the use of the widow and minor chil- dren. Where such a rule is in force it is generally held that a husband can not deprive his wife of her homestead right in i^Purnell v. Reed, 32 Fla. 329; (Ky.), 361; Coomes v. Clements, 4 13 So. 831; Warren v. Warren, 148 liar. & M. (Md.), 101; Tyler v. 111. 641; McClanahan v. Williams, Wheeler, 160 Mass. 20G; Doj'le v. 136 Ind. 30; Pepper v. Thomas, 85 - Doyle, 50 O. S. 330; Mclizet s Ap- Ky. 539; Jennings v. Jennings, 21 peal, 17 Pa. St. 449. 0. S. 56 ; Hibbs v. Insurance Co. 40 Nor in some states can a wife 0. S. 543; Cunningham's Estate, 137 exclude her husband. Tyler v. Pa. St. 621 ; Rutherford v. Mayo, 76 Wheeler, 160 Mass. 206. Va. 117; Wilber v. Wilber, 52 Wis. is Perkins v. Little, 1 Me. 148. 298. So in Michigan before the act of 13 Cook V. Adams, 169 Mass. 186. 1881. Miller v. Stepper, 32 Mich. 16 Cook V. Adams, 169 Mass. 186. 104. 17 Cummings v. Daniel, 9 Dana 160 LAW OF WILLS. the family residence by devising it to some one else;^^ and a widow may, in spite of her husband's will, have the entire property used as a homestead set off to her, though testator's son had been living in part of the house with his father's consent. ^^ So the husband may after the death of his wife retain the homestead occupied by them in their joint lives, even though it belonged to the wife, and she has devised it to others.^^ So a purchaser in good faith of a homestead from a widow to whom the law gave a homestead in fee may hold the same in fee, though by a will which was never probated within the state, the widow was given a life estate in such property, and she elected to take under the will.^^ The husband may de- vise a homestead in fee to his wife."^ A husband or wife may, however, in most states assent in writing to a will made by deceased spouse devising the homestead to another,^^ and such consent may be given after the death of such deceased spouse.^^ Where a homestead has not been selected in the life- 19 Stokes V. Pillow, 64 Ark. 1 ; Matheny's Estate, 121 Cal. 267; Walkerly's Estate, 108 Cal. 627; 49 Am. St. Rep. 97; Stunz v. Stunz, 131 111. 210; Peebles v. Bunting, 103 lo. 489 ; In re Franke, 97 lo. 704; Hazelett v. Farthing (Ky.), 22 S. W. 646; 15 Ky. Law Rep. 197; Pendergest v. Heekin (Ky.), 22 S. W. 605; 15 Ky. Law Rep. 180; Myers v. Myers (Ky), 12 S. W. 933; 11 Ky. Law Rep. 659; Pratt v. Pratt, 161 Mass. 276; Shorr v. Etling, 124 Mo. 42; Klcinman v. Geiselman, — Mo. — ; (1893), 21 S. W. 796; Wells v. Congregational Church, 63 Vt. 116; Contra, in Florida a certain amount of homestead property, ($1000), may be held exempt from a forced sale: brt testator may bequeath it to others than his widow. Hinson v. Booth, 39 Fla. 333; Scull V. Beatty, 27 Fla. 426; Purnell v. Reed, 32 Fla. 329; 13 So. 831. So in Georgia. Bostick v. Chovin, 55 S. Car. 427. If children survive testator, he can not dispose of his liomestead by will. Walker v. Red- ding, 40 Fla. 124. 20 Pratt V. Pratt, 161 Mass. 276. 21 Reed v. Talley, 13 Tex. Civ. App. 286. In Missouri, however, a husband has no homestead estate of any kind in his wife's realty after her death. Richter v. Bohn- sack, 144 Mo. 516. 22 Van Syckel v. Beam, 110 Ma 589. Where testator's wife dies be fore testator, a will executed bj him during her lifetime is valid tc pass the homestead. Penstock v. Wentworth, 75 Minn. 2. 23Martindale v. Smith, 31 Kan. 270. 24 Eckstein v. Radl, 72 Minn. 95; Radl V. Radl, 72 Minn. 81. 23 Radl V. Radl, 72 Minn. 81. LAW OF WILLS. 161 time of testator, his wife can not, after his death, select one ont of property devised by him, so as to prevent snch devise from taking effect.^*' If the husband devises property to his wife in lieu of her homestead interests, and she accepts such property, she can not have her homestead in his property.^^ §139. Comiminity property. In some of the western states legislation has adopted from the Spanish law the general rule that matrimonial gains and acquets belong equally to husband and wife. Where this rule is in force the gains and acquets during coverture, which are to be divided equally between the spouses, are known as community property, and a testator can dispose by will only of his own half of the community property. He has no power to dispose of the half of the community property belonging to the other spouse.^^ But testator may by will give power to his executor to sell conmnmity property in order to pay off claims which could in law be charged against such property.-^ §140. Non-surviving^ interests. The interest in property which can be disposed of by will must further be one which will survive testator. Thus, testa- tor can not by will dispose of property in which he has a life- interest only.^** ISTor can testator, in jurisdictions where joint tenancy still exists, devise his joint interest in property to the prejudice of the remaining joint tenants.^^ 26 Eyres' Estate, 7 Wash. 291. 471; Haley v. Gatewood, 74 Tex. 27 Warren V. Warren, 148 111. 64r 281; Box v. Word, 65 Tex. 159; Blackmer's Estate, 63 Vt. 236; 28 ' Hill's Estate, 6 Wash. 285; Ziegler Atl. 419; See Sec. 716. v. His Creditors, 49 La. Ann. 144. 28 De Grandmont v. Societe des 29 Sharpe v. Loupe, 120 Cal. 89. Artisans, 15 C. S. 147; Sharpe v. 30 Dorion v. Dorion, 20 Can. S. Loupe, 120 Cal. 89; Payne v. Payne. C. 430; Young v. Snow, 167 Mass. 18 Cal. 291; Scott v. Ward, 13 287; Studdard v. Wells, 120 Mo. Cal. 459; Neuber v. Shoel, 8 Kan. 25. App. 345: 55 Pae. 350; Cox v. Von 31 Wilkins v. Young, 144 Ind. 1 : Ahlenfeldt. 50 La. Ann. 1266 ; 23 41 N. E. 68. So. 959; Mayo v. Tudor, 74 Tex. 162 LAW OF WILLS. An estate, however, wliicli is a life estate, subject upon a given contingency to enlarge to a fee, may be devised sub- ject to the fulfillment of such contingency. Thus, where tes- tatrix acquired an estate by a consent decree in a partition suit, which was to be a life estate if any of her children or their issue survived her, and on her death to them, but which was to be a fee simple in case she survived them, it was held that her estate in this remainder might be devised, subject to be defeated if such issue survived testatrix.^^ §141. After-acquired personalty. After it became established that testator might dispose by will of any property which he owned at the time of the execu- tion of the will, another and different question was raised where testator attempted by will to dispose of property which he did not own at the time that he made the will, but which lie expected to acquire afterwards. Personalty, under the common law, might be disj)osed of by testament executed before testator became the owner there- of. It was recognized that he had full power so to dispose of his property, and the only question was as to the intention of testator.^^ So where testator can control the disposition of his life insurance, he may do so by will if conformable to the rules of the company and the terms of his contract, though such property does not accrue to his estate until his death.^'* 32 Bigley v. Watson, 98 Tenn. 353 ; Loverin v. Lamprey, 22 N. H. 434 : 38 L. R. A. 679. McNaughton v. McNaughton, 34 X. 33 James v. Dean, 11 Ves. 389; Y. 201; Frick v. Frick, 82 Md. affirmed in 15 Ves. 236; 8 R. R. 218; Stannard v. Barnum, 51 Md. 178 ; Bland v. . Lamb, 2 J. & 440 ; Dalrymple v. Gamble, 68 Md. VV. 405; Wilde v. Holtzmeyer, 5 523; Nichols v. Allen, 87 Tenn. 131 ; Ves. 811; Nannock v. Horton, 7 Henderson v. Ryan, 27 Tex, 670. Ves. 399 ; Smith v. Edrington, 8 34 Mackenzie v. Mackenzie, 3 Cranch (U. S.), 66; Marshall v. Mac. & G. 559; Golder v. Chandler, Porter, 10 B. Mon. (Ky.). 1: Wait 87 Me. 63; Stoelker v. Thornton, V. Belden, 24 Pick. (Mass.), 129; 88 Ala. 241; 62 R. A. 140. LAW OF WILLS. 163 §142. After-acquired realty. But in devises of realty it was settled, at common law, that a will could operate only upon the land owned, by testator at the time that he executed the will, and that after-acquired property could not pass."^^ This rule rested upon two bases. A devise of land was treated as a form of conveyance under the Statute of Wills, and it was a well settled rule of common law that one could not pass title to real estate which he did not at that time possess.^ ^ Furthermore, the Statute of Wills provided that those 'hav- ing lands' might pass them by devise. By strict construction of this statute it was held that 'having lands' restricted devises to lands owned at the time of the will ; and that "if the devisor has not the lands he is out of the statute." ^^ This re- striction has been done away in most jurisdictions by statute, and a testator may, if he wish, pass by his will after-acquired lands, as well as those belonging to him when the will was executed.^^ 35 Brydges v. Chandos, 2 Ves. 417 ; Nannock v. Horton, 7 Ves. 391 ; Langford v. Pitt, 2 P. Wms. 629. Carroll v. Carroll, 6 How. 275; Brewster v. McCall, 15 Conn. 274; Ross V. Ross, 12 B. Mon. (Ky.), 437; Ballard v. Carter, 5 Pick. (Mass.), 112; George v. Green, 13 N. H. 521; Dodge v. Gallatin, 130 N. Y. 117; Girard v. Philadelphia, 4 Rawle (Pa.), 323; Raines v. Bark- er, 13 Gratt. (Va.), 128; Frazier v. Boggs, 37 Fla. 307; 20 So. 245. 26 Brydges v. Chandos, 2 Ves. 417; Langford v. Pitt, 2 P. Wms. 629; Milnes v. Slater, 8 Ves. Jr. 295; George v. Green, 13 N. H. 521. 37 Bunter v. Coke, 1 Salk. 237. The former reason is said to be the real one, the latter being crit- icised in Brydges v. Chandos, 2 Ves. 417. 38 Jepson V. Key, 2 K. & C. 873; 10 Jur. (N. S.), 392; 10 L. T. 68; 12W.R. 621; Doe & York v. Walk- er, 12 M. & W. 591; 13 L. J. Ex. 153; Langdale v. Briggs, 3 Sm. & G. 246; affirmed 8 De G. M. & G. 391; 26 L.J. Ch. 27; 2 Jur. (N. S.), 982; 4 W. R. 783; Castle v. Fox, 40 L. J. Ch. 302; L. R. 11 Eq. 542; 24 L. T. 536; 19 W. R. 840; Harden bergh V. Ray, 151 U. S. 112; Gibbon v. Gibbon, 40 Ga. 562; Woman's Missionary Society v. Mead, 131 111. 338; Morgan v. Mc- - Neeley, 126 Ind. 537; Blakemore Succession, 43 La. Ann. 845 ; Paine Vw Forsaith, 84 Me. 66; Meserve V. Meserve, 63 Me. 518; Ruckle v. Grafflin, 86 Md. 627 ; Frickv.Frick, 82 Md. 218: Dalrymple v. Gamble, 68 Md. 523; Bedell v. Fradenburgh, 65 Minn. 361 ; 68 N. W. 41 ; Gush- ing V. Aylwin, 12 Met. (Mass.), 169; Hale v. Andesley, 122 Mo. 316; Webb v. Archibold, 128 Mo. 164 LAW OF WILLS. §143. Classes of property devisable. — Realty in general. Tkere is no practical difference at modem law between legal and equitable interests as to their devisabilitj, and the two classes maj be discussed together for convenience, with sub- sequent reference to the peculiar forms of equitable interests.^'^ Thus under the common law rule that after-acquired lands could not be devised, testator could devise lands in which he had equitable interests, even though he afterward acquired the legal title.^*^ Thus, where testator had contracted to pur- chase lands by a contract enforceable in equity, he thereupon acquired an equitable interest in such lands which he could devise by will executed before he acquired the legal title.^^ But where the contract Avas not enforceable in equity, no equitable interest was acquired, and such realty would not pass by will executed before testator acquired the legal estate.^^ A testator, however, could not devise an equitable interest ac- quired after his will was executed, as where he contracted to purchase land after he had made his will.^^ §144. Effect of disseisin. If the testator has both possession and estate in land, we have seen that there can be no question as to his right to de- vise.^^ But where testator was disseised of his land, the com- mon law regarded a conveyance of such land as champerty; 299 ; Flummerfeldt V. Flummerfeldt, 101; 1 Sm. & Gif. 101; 17 Jur. 51 N. J. Eq. 432; Lamb v. Lamb, 225; (interests created by contract 131 N. Y. 227; Smith v. Jones, 4 to buy land). Ohio, 116; Pruden v. Pruden, 14 O. 4i Greenhill v. Greenhill, 2 Vern. S. 251; Jacob's Estate, 140 Pa. St. 679; Capel v. Girdler, 9 Ves. 510; 268; 11 L. Pv. A. 767; Gable v. Prideaux v. Gibbon, 2 Ch. Gas. 144 ; Daub, 40 Pa. St. 217; In re Pearce Seton v. Slade, 7 Ves. 274; Broome 20 R. L 380; Webster v. Wiggin, v, Monclc, 10 Ves. 605. 19 R. I. 73; 28 L. R. A. 510; We'l- 42 Gascarth v. Lowther, 12 Ves. born V. Townsend, 31 S. Car. 408: 107; 8 R. R. 310. Haley v. Gatewood, 74 Tex. 281; 43 Langford v. Pitt. 2 P. Wm». Hamilton v. Flinn, 21 Tex. 713. 629 ; Lushington v. Sewell, 1 Russ. 89 Perry v. Phelips, 1 Ves. 255. & M. 169. 40Marston v. Roe, 8 Ad. & El. 44 See Sec. 134. 14; Morgan v. Holford, 1 W. R. 165 LAW OF WILLS. and it was therefore held that such interest could not be de- vised Under modern law the old rules as to champerty have been in a -reat measure abandoned, and it is very generally held that r disseised owner of lands may convey his estate therein by deed^*^ In analogy to this rule it is generally held that a testator may now devise all the interest that he possesses in land of which he is disseised.'*^ ^ At common law one who had no valid title to certain reax property as against the real owner, but was in actual adverse possession of such property, had such title against all but the true owner as he could devise,^« and this rule is, of course, unchanged by modern legislation. §145. Estates in futuro. A reversion may be devised by the owner thereof.^^ A vested remainder may be devised, if it is an estate which sur- vives the testator.^*^ So accumulations which by statute pass to the devisee of a remainder, pass upon the death of such remainderman before his estate takes effect in possession to his devise.^^ Likewise may a contingent remainder be devised where the contingency is one of event, and not of person. In the latter case there is no one to devise the property. ^^ Thus a resulting trust contingent upon the failure of issue of certain specified persons, is devisable.^^ 45Goodright V. Forester, 8 East. 634; Carney v. Kain, 40 W. Va. 551; Culley v. Doe, 11 Ad. & El. 758. 1008- Poor V. Robinson, 10 Mass. 5 o Harvard College v. Balch, 1/1 131 ' 111. 275. 46 Cressinger v. Welch, 15 Ohio, si Tompkin's Estate, 154 N. Y. 156 634. 47Atwood V. Weems, 99 U. S. 52 Ingilby v. Amcotts ^\^^T: 183; May v. Slaughter, 3 A. K. 585; 25 L. J. Ch. 769 ; 2 Jur (N. S.), Marsh (Ky.), 505; Humes v. Mc- 410; Collins v. Smith, 105 Ga. 5Z5; Farlane 4 S. & R. (Pa.), 427; Buck v. Lantz, 49 Md. 439; Chess's Watts V. Cole, 2 Leigh (Va.), 653. Appeal, 87 Pa. St. 362; Loring v. 48Asher V. Whitlock L. R., 1 Q. Arnold, 15 R. I. 428; Bailey v. g 1 Hoppin. 12 R. I. 560; Clark v. ■497. .e Hume (C. A.) (1895), Clark, 19 S. Car. 345. lCh.Div.422:64L.J.Ch. (N. S.). 53 Carney v. Kain, 40 W. Va. 267; Tompkin's Estate, 154 N. Y. 758. 166 LAW OF WILLS. §146. Possibilities. Mere possibilities are said not to be devisable, and tins is nndoubtedlj true if the term 'mere possibilities' is restricted in its meaning. In this sense it "signifies nothing more than an expectancy, which is specifically applied to a mere hope of succession, unfounded in any limitation, provision, trust, or legal act whatsoever." ^"^ Thus the hope of the heir of suc- ceeding to his ancestor's estate is a mere possibility which is not subject to devise, and the hope of one who is named bene- ficiary in the will of another of succeeding to such beneficial interest is such a mere possibility that it can not be devised.^^ What is known as a 'possibility coupled with an interest' has been held to be devisable.^ ^ It has been held that money donated by the United States Government to the sugar plant- ers of Louisiana as a bounty may be bequeathed, where the planter died before the donation was in fact made and while it was merely expected.^ ''^ §147. Rights of entry devisable. Mere rights of entry are also said to be incapable of devise. This statement also is true with some qualification as to the meaning of 'right of entry.' Where this term is applied to the right of one who is dis- seised of realty to recover the same, there can be no question that under modern law such right can be devised.^^ So where the term is used to denote the right of a remainderman or reversioner to cause his estate to take effect in possession be- fore the particular estate originally granted is determined, under the deed creating it, by electing to determine the par- ticular estate on account of some act or default of the par- ticular tenant, such right can pass by devise together -with the remainder or reversion. 51 Smith on Real and Personal ^^ Moor v. Hawkins, 2 Eden. Property, Sec. 192, quoted in Need- 341 ; Perry v. Phelips, 1 Ves. 255. les V. Needles, 7 O. S. 432. 57 Allen's Succession, 49 La. Ann- as Hall V. Hall, 26 Md. 107 ; Pate 1096. V. Pate, 40 Miss. 750 ; Perry v. 58 See Sec. 1 44- Hunter, 2 P. T. 80. LAW OF WILLS. 167 Where on the other hand, testator has parted with all his interest and estate in certain realty, and merely reserves a right to re-enter for breach of condition subsequent, such right can not be devised unless by the j)rovisions of express statute.^'' So, a possibility that on the dissolution of a corporation, real estate may revert to the grantor is not devisable,^*^ and where real estate was granted to one, reserving to grantor a life estate and providing that grantee should pay the taxes on such realty and support grantor for life, without any claim of re-entry or forfeiture, it was held that grantor had no in- terest in such realty that could be devised.^^ In some juris- dictions whose statutes provide that any person may devise all rights of entry for condition broken, as well as other rights of entry, the possibility of reverter upon failure of condition on which a conditional fee simple was granted, is devisable.^^ 59 Upington v. Corrigan, 151 N. Y. 143, citing and following Scliulen- berg V. Harriman, 21 Wall. 44; Ruch V. Rock Island, 97 U. S. 693; Southard v. R. R. 2G N. J. L. 13. "If, therefore, there was any es- tate left in Mrs. Davey upon her grant to Hughes, it was not one known to our statute on real prop- erty, and all expectant estates, with- in which class it would liaA'e to fall, are abolished by the article, except such as are therein de- fined, and which must be either es- tates limited to commence in posses- sion at a futvire day or reversions. The real interest contended for here would not satisfy the requirement of either class. The mere posibil- ity of reverter, which was all there was in this case, could not be in- cluded within the "reversions" spoken of by the statute, either within its letter or spirit. The Statute of Wills, through the use of such precise words as "every estate and interest in real prop- erty descendible to heirs," obviously must have reference to siich as are recognized by the Revised Statutes to be estates of inheritance. We would be without warrant in as- serting the existence of any es- tate in Mrs. Davey in the premises granted to Hughes, whether at the common law or under the Revised Statutes. She had an election to enter for condition broken, and she could release her right to do so. To those rights her heirs, after her decease, succeeded by force of representation and not by descent. There was no estate upon which the Statute of W^ills could operate, but as heirs there devolved upon them the bundle or aggregate of the rights which resided in and survived the death of the grantor, their an- cestor. Her legal personality is con- tinued in them." Upington v. Cor- rigan, 151 N. Y. 143. So Trustees of Presbyterian Church of Paris v. Venable, 159 111. 21.5. 60 Presbyterian Church v. Ven- able, 159 111. 215. 61 Studdard v. Wells, 120 :Mo. 25. 62 Pemberton v. Barres (1899), 1 Ch. Div. 544; Rockwell v. Swift, 59 Conn. 289. 168 LAW OF WILLS. §148. Equitable interests. A testator who o^vlled equitaLle interests in real estate could dispose of the same by will, as well as if he had the legal in- terest too. The questions arising under this doctrine are chiefly questions of real property law, and not questions con- cerning the law of wills. The difficulties which present them- selves are almost always in determining whether a given trans- action creates a mere chose in action, enforceable by action at law ; or whether it creates an estate which equity would recog- nize and enforce by means of specific performance or other ap- propriate remedy. Thus, where testator had during his life- time entered into a valid and binding contract for the pur- chase of an estate in lands, by which testator became bound for the purchase price, and the former owner of the realty be- came bound to convey to testator, testator thereby acquires an equitable interest in such land contracted for, which he may devise.^^ This is an ap^Dlication of the doctrine of conversion in a special case. By entering into a valid contract for the pur- chase of real estate, testator in equity converted his personalty to that extent into realty ; and this converted personalty passeci by his will as realty. So where testator has conveyed real property under such circumstances, that equity will hold his grantee as a trustee for him and on his application will de- cree a reconveyance, he has such an equitable estate in this property that he may devise this interest. So an interest in realty which can not be asserted unless a conveyance or release thereof be set aside, may be devised, and the right to set such conveyance aside will pass with the property.^'* Accordingly, in some cases where the sale ultimately fails, it has been held that the money to be used in such purchase should pass as realty. Out of these rules, as to equitable 63 Broome v. Monck, 10 Ves. Jr. 427; 4 De G. & J. 78 ; 5 Jur. (X. 605; Buckmaster v. Harrop, 7 Ves. S.) 583; Uppington v. Bullen, 2 Dr. 341; Dodge v. Gallatin, 130 N. Y. & War. 184; 1 Con. & L. 291; Cul- 117. ley V. Doe, 11 Ad. & El. 1008; Cog- 64 Gresley v. ]\Iousley, 28 L. J. Ch. dell v. Widow, Heirs, etc., 3 De 620; 5 Jut. (N. S.) 583; 7 W. R. Saus. (S. Car.) 346. LAW OF WILLS. 169 estates, arose an apparent exception to the common law rule that after-acquired realty could not be devised. If a testator had an equitable interest in realty at the time that he executed his will and afterward he had the legal title conveyed to him by a suit for specitic performance, or otherwise, the realty was not regarded as after-acquired realty, but it passed under the will by virtue of his o^vnership of the equitable estate when he made the will.^^ §149. Rights of creditors. A testator has no power to dispose of his property by will, so as to interfere with the rights and claims of his creditors. Thus, a testator can not direct legacies to be paid to infants within the time limited for creditors to present their claims, since no bond given by infants to refund in case the estate should prove insolvent, could be enforced against them.^^ So as between his devisee and his creditors, testator can not de- vise realty free from a lien for the unpaid purchase price.^^ This fundamental proposition finds its chief application in cases where testator's property is insufficient to pay his debts and legacies. In such case (except in some cases of legacies upon valuable consideration) there is no question that every legacy must fail before any creditor will be forced to yield any part of his claims. The only question is as between the legatees and devisees, in what order the devises and legacies are to be used to pay the debts.^* 65Marston v. Roe, 8 Ad. & El. s? Bradsher v. Hightower, 118 N". 14; Smith v. Jones, 4 Ohio, 116 Car. 399. 66 Moore v. Moore, 50 N. J. Eq. es See Chapters XXXVI and 554. XXXVIII. 170 LAW OF WILLS. CHAPTER XI. WHO CAN TAKE UNDER A WILL AND TESTAMENT. §150. Aliens Common law rule. At the common law an alien could not acquire realty by the operation of the law; and could not hold realty against the government, no matter how such realty was acquired.^ But there was no restriction uj)on the power of an alien to acquire realty by purchase other than by operation of law. He could acquire title in this manner, though the government could de- prive him of such realty by a direct proceeding for that pur- ]30se,^ and if the alien became naturalized before the govern- ment took advantage of his disability, his title was unimpeach- able.^ Accordingly, it was always held at common law that a de- vise of realty to an alien was valid and passed the title thereto.^ Since only the government could attack the title of the alien, 1 1 Black. Com., 372 ; 2 Black. Oregon Mortgage Co. v. Carstens, Com., 249; Washburn on Real Prop., IG Wash. 10.5. p. 48; Manuel v. Wolf, L52 U. 3 Manuel v. Wulff, 152 U. S. 505 : S. 505 ; Stevenson v. Dunlap, 7 T. B. " Putters v. Dawson, 82 Tex. 18. Mon. (Ky.), 134; Hauenstein v. * Taylor v. Benham, 5 How. (X. Lynham, 28 Gratt. (Va.) 62. S.) 233; Osterman v. Baldwin, 6 2Quigley v. Birdseye, 11 Mont. Wall. IV. S.) 116; Harley v. State, 439; Wunderle V. Wunderle, 144 in. 40 Ala. 089: Scanlan v. Wright, 40; 19 L. R. A. 84; Lenehan v. 13 Pick. (Mass.) 523; Marx v. Mc- Spaulding, 57 Vt. 115; Hubbard v. Glynn. 88 N. Y. 357; Gray v. Kauflf- Goodwin, 3 Leigh (Va.) 492; Goon man, 82 Tex. 65. Gar V. Richardson, 16 Wash. 373; LAW OF WILLS. 171 neither the heirs of testator, the residuary devisee, nor any other person could take advantage of alienage to defeat the title of the devisee.^ At common law an alien might acquire personal property and hold the same as fully as a citizen might do, unless such alien was or became an alien enemy and the state confiscated his property.^ An alien might therefore take personal property under a testament as a citizen might. §151. Aliens Modern statutory rule. The modern statutes of most American states allow an alien to inherit and take by devise as fully as a citizen eouldJ But in some states statutes forbid non-resident aliens to ac- quire any interest in real estate.*^ In such states it is held that the United States treaties with certain foreign nations con- ferring the right upon the citizens of each party to the treaty to hold real estate within the other nation supersede the state laws disqualifying aliens to take, as far as the citizens of such nations are concerned.^ But aliens may in Iowa acquire by devise, or other form of purchase, not over three hundred and twenty acres of land if within five years from acquiring such lands they are placed in the actual possession of a relative of the alien within the third degree, and within ten years from the date of acquiring such lands, such relative becomes 5 Brigham v. Kenyon, 76 Fed. 30 Airhart v. Massieu, 984 S. 491 Phillips V. Moore, 100 U. S. 208 Racouillat v. Sansevain, 32 Cal 376; Dudley v. Grayson, 6 T. B Mo. 53; Stamm v. Bostwick, 122 N. Y. 48; 9 L. R. A. 597; Hannon V. Hounihan, 85 Va. 429. 8 (Devise included.) Ryan v. Egan, 156 111. 224; Jele v. Lem- 'Mon. (Ky.) 259; Crane v. Reeder, berger, 163 111. 338; JVToier v. Lee, 21 Mich. 24; Lenehan v. Spaulding, 106 lo. 303; DeGraff v. Went, 164 57 Vt. 115; Keenan v. Keenan, 7 111. 485; Furenes v. Mickelson, 86 Rich. ( S. Car. ) 345. lo. 508 ; Burrow v. Burrow, 98 lo. 6 Craig V. Leslie, 3 Wheat. (U. 400. S.) 563; Evans's Appeal, 51 Conn. 9 Burrow v. Burrow, 98 lo. 400: 435; Greenheld v. Morrison, 21 lo. Opel v. Shoup, 100 lo. 407: Adanw? 538; Harney v. Donohue, 97 Mo. v. Akerlund, 168 111. 632 : Scharpf v. 141. Schmidt, 172 111. 255: Rixner's Suc- 7De Geofroy v. Riggs, 133 U. S. cession, 48 La. Ann. 552; 32 L. R. 258; Nicrosi v, Phillipi, 91 Ala. A. 177. 299 ; L^tasey v. Giedinghagen, 132 172 LAW OF WILLS. a naturalized citizen.^ ^ In ^ew York descendants of women who were born in this country, but have married aliens, and reside in a foreign country are excepted from the general rule of their statutes that aliens can not take real estate." In other jurisdictions while aliens can take land they are bound to sell it within three years and withdraw the proceeds.^ ^ §152. Private corporations. — General rule. Under the Endish Statutes of Mortmain, corporations were forbidden to acquire realty. The Wills Act expressly excepted from its provisions devises to corporations. There was at English law no authority to the corporation to take by devise, or to hold what it might acquire otherwise. A similar statute was once in force in South Carolina, un- der which a corporation could not take by will.^^ This statute was modified in 1872 by omitting the words "except to bodies politic and corporate" from the Wills Act. Since that time a corporation has been able to take by will.^* In the United States such provisions are rare. The Statutes of Wills, in force in the different states, do not except devises to corporations from their general terms; and it is held that in the absence of an express prohibition in the charter of the corporation, or in the general laws on the subject of corporations, a cor- poration may acquire realty by devise as a natural person might.^*^ loFurenes v. Severtson, 102 lo. 290: 19 L. R. A. 90; 36 Am. St. 322; Doehrel v. Hilmer. 102 lo Kep. 432. 169; Bennett v. Hibbert, 88 lo. 154 1 3 American Bible Society v. 55 N. W, 93; Wilcke v. Wilcke, 102 Noble, 11 Rich. Eq. (S. Car.) 156 To. 173; Schultze v. Schultze, 144 i* Mcintosh v. Charleston, 451 111. 290; 36 Am. St. Rep. 432; 19 L. S. Car. 584. R. A. 90; Furenes v. Severtson, 102 is White v. Keller, 68 Fed. 796; To. 322. On the same point Easton White v. Howard, 38 Conn, 342: V. Huott, 95 lo. 473; 31 L. R. A. Moore v. Moore, 4 Dana, u^y-) 177. 354; American Bible Society v. 11 McGillis \. McGillis, 154 N. Y. Marshall, 15 O. S. 537 ; Mcintosh 532. V. Charleston, 45 S. Car. 584. 12 Schultze V. Schultze, 144 111. LAW OF WILLS. ^'^ §153. Private corporations.— Special statutory and constitu- tional provisions. In some states specific statutory or constitutional provisions alter this rule. Thus, in Maryland, a devise to a religious corporation is invalid by constitutional provision unless the legislature specifically sanctions such devise.^ "^ And a grant to receive 'subscriptions and contributions' is not a power to receive a devise.^ '^ A devise to an unauthorized corporation is void, and tlie heirs may take advantage of its invalidity.^^ But these pro- visions apply only to Maryland corporations. A devise by a Marvland testator to a foreign corporation, if valid otherwise, is not made invalid by these provisions.!^ In New York it is provided by statute that no devise to a corporation is valid unless it is expressly authorized by its charter or by statute to take by devise. This statute is strictly local in its appli- cation. It applies to devises by a New York testator to a foreign corporation,^^ but it does not forbid a devise of foreign land by a foreign testator to a New York corporation.^^ In some states it is provided that certain corporations can not hold real estate to a value in excess of a specified sum. Where this restriction is imposed, an important question is raised by a devise to such corporation which, with the prop- erty already owned by it, will amount altogether to more than the vahie limited by statute. In some states it is held that such a devise is void as to such excess f^ and the capacity of the corporation to take is determined by the capacity of the corporation to take at testator's death. If the devise was in excess of the amount which it could then lawfully hold, a 16 Church V. Smith, 56 Md. 362. Starkweather v. American Bible So- 17 Brown v. Tompkins, 49 Md. 423. ciety, 72 111. 50. 18 See cases cited in the two pre- 22 Starkweather v. Amer. Bible ceding notes. Soc. 72 111. 50; McGraw's Estate, 19 Vansant v. Roberts, 3 Md. 119; 111 N. Y. 66; Coggeshall v. Home Brown v. Thompkms, 49 Md. 423. for Friendless Children, 18 R. 1.696; 20 Scott V Ives, 51 N. Y. S. 49. 31 Atl. 694; Wood v. Hammond, 2iAmericanBibleSociety V. Mar- 16 R. I. 98; House of Mercy v. shall, 15 0. S. 537 ; Thomf)son v. Davidson, 90 Tex. 529. Swoope, 24 Pa. St. 474; contra 174 1.AW OF WILLS. subsequent amendment to the charter of the corporation, in- creasing such amount, can not give validity to such devise.-^ But a devise to a corporation in trust for certain designated beneficiaries is not avoided by the fact that the devise is in excess of the amount which the corporation may hold.^'* In other states a devise to a corporation in excess of the amount which it is allowed to hold, is held to be a perfectly valid de- vise, and one which the heirs can not defeat. Only the gov- ernment by a direct proceeding can take advantage of the fact that the corporation is holding in excess of the legal amount.^^ §154. Public corporations. In the absence of special restrictions a devise to a public corporation is valid,^*^ and the city in such case may establish a board of managers for such fund.^^ The state may be a beneficiary under a will,^^ or so may an unincorporated state university.^^ Whether the United States may take property by devise is a question upon which the courts are at variance.^ ^ §155. Convicts. A convict may be a beneficiary under a will at modern law.^^ 23 Coggeshall V. Home for Friend- 160 Mass. 431; Carder v. Fayette less Children, 18 R. I. 696; 31 Atl. County, 16 O. S. 353. 694. To the same eflfect is White 27 Quincy v. Attorney General, 160 V. Howard, 46 N. Y. 144. Mass. 431. (In this case the board 24 Heiskell v. Chickasaw Lodge, 87 was made up of certain officials and Tenn. 668. one private citizen.) 25 Jones V. Habersham, 107 U. S. 28 in re President and Fellows of 174; Farrington v, Putnam, 90 Me. Yale University, 07 Conn. 257. 405;' 37 Atl. 652; Stickney's Will, 29 Royer's Estate, 123 Cal. 614; 85 Md. 79; 35 L. R. A. 693; 56 Pac. 461. De Camp v. Dobbins, 29 N. J. Eq. so A devise to the United States 36. See Sec. 36. was upheld in Dickinson v. U. S. 26 Mcintosh v. Charleston, 45 S. 125, Mass. 311, and was held invalid Car. 584; Sheldon v. Stockbridge, in Fox's \^'ill, 52 IST. Y. 530; U. S. 67 Vt. 299; Beurhaus v. City of v. Fox, 94 U. S. 315. Watertown, 94 Wis. 617: 69 N". W. si La Chapelle v. Burpee, 69 Hun, 986; Quincy v. Attorney General, 436; Kenyon v. Saunaers, 18 R. I. 590. LAW OF WILLS. 175 §156. Illegitimate children. Apart from the power of testator to disinherit his legitimate children in favor of his illegitimate children, a question arises as to the capacity of illegitimate children to take under a will in any event. If the illegitimate child to whom the de- vise is made is in existence when the will is executed and is so clearly described in the will that the law recognizes it as the intended beneficiary, there is no question of its capacity to take the devise.^^ By statute in Louisiana, however, it is provided that illegitimate children may claim 'alimony' from the estate of the deceased father ; and it is held that this pro- vision for them, independent of the will, prevents testator from making any other or further provision for them by will.^^ If the illegitimate child is not in existence when the will is executed, and is described in the will as an illegitimate child to be born, a serious question arises as to its capacity to take. On the one hand if the description is sufficiently accurate, some courts are strongly inclined to hold the gift as a valid pro- vision for those unfortunates, who are disgraced without fault of their own, and to whose disgrace the law ought not to add the further disadvantage of forbidding its father, who is legally bound in his lifetime for its support, to provide for it after his death. Accordingly, it is held in some cases that where the actual, though not of course the technical, father makes provision by will for his future born illegitimate children, describing them with sufficient certainty, such devise will be upheld.'"^* Such children can be described with sufficient certainty by designating them as the illegitimate children of the designated 3- Savage v. Robertson, L. R. 7 Mass. 472 ; Heater v. Van Auken, Eq. 176; Owen v. Bryant, 13 Eng. 14 X. J. £q. 159. L. & Eq. 217; Hill v. Crook, L. R. 33 Bennett v. Cane, 18 La. Ann. 6 H. L. 265 ; In re Walker ( 1897 ) , 590 : Gaines v. Hennen, 24 How. 2 Ch. 238; In re Harrison (1894), (U. S.) 553. 1 Ch. 561 ; Dunlap v. Robinson, 28 34 Oecleston v. Fullalove, L. R. 9 Ala. 100; Hughes v. Knowlton, 37 Ch. 147; In re Bolton, 31 Ch. Div. Conn. 429; Smiiii v. Du Brose, 78 542. Ga. 413: Hayden v. Barrett, 172 176 LAW OF WILLS. motlier.^^ Possibly such children may be sufficiently desig- nated by describing them as those who may be the 'reputed children' of testator at the time of his death.^^ But they cau not be properly described as his 'children/ for technically speaking, illegitimate children are not recognized in law as having a 'father,' but at the best, only a 'reputed father.' ^'^ In the early cases, where others than the parents provide by will for future bom illegitimate children, the courts have been even more unwilling to alloAv such a disposition of prop- erty no matter how clear the intent, than where the parents make such provision. Some of the strongest considerations for upholding devises by the parents are lacking. The testator is not ful tilling, after his death, a duty which rested uj^on him during his lifetime. A third person is making a disposition of his property which will prove ineffective pro tanto, unless future unlawful sexual intercourse on the part of the desig- nated mother results in the birth of illegitimate children. Under the old rule, and especially in England, it has been held accordingly that a devise by one not a parent of the bene- ficiary to a future born illegitimate child, is void. The early cases upon which these propositions are based are cases in which the will or deed was in pursuance of a con- tract, one provision of which was that the parents of the il- legitimate children should continue to live in unlawful sexual relations. Such contracts are, of course, contrary to public policy, illegal and void. Oat of their hostility to such con- tracts grew the unwillingness of the courts to allow devises to future-born illegitimates. The modern cases, however, are much more liberal toward devises to the illegitimate, than the earlier line of English cases. It seems now to be held in every case that it is a ques- tion of the intention of the testator. If testator describes the beneficiary with sufficient accuracy, and makes it clear that he means to provide for the future-born illegitimate, the law 35 Oceleston v. Fullalove, L. K. 9 36 Occleston v, Fullalove, L. R. 9 Ch. 147; In re Bolton, 31 Ch. Div. Ch. 147. 542. ' 37 Jn re Bolton, 31 Ch. Div. 542. LAW OF WILLS. 177 does not now in most jurisdictions forbid such a disposition of projjertj, even where one not the parent of such children provides for future born illegitimates.^'^ The policy now adhered to is "the more humane policy of the civil law, a policy which considers justice to the innocent as outweighing the controlling idea, so called, of the common law, the discouragement of illegitimacy." ^^ In other jurisdictions other restrictions have from time to time been imj)osed upon devisees, which have been so local as not to call for extended discussion. Thus, under some early statutes giving a married woman power to make a will it was provided that she could not devise property to her husband."*'-* These statutes have for the most part been so modified by subsequent legislation as to permit a married woman to de- vise to her husband if she wishes. 33Hayden v. Barrett, 172 Mass. 30 SchoH's Will, 100 Wis. 650. 472; Sullivan v. Parker, 113 N. Car. 4o Wakefield, v, Phelps, 37 N. H. 301 ; Heater v. Van Auken, 14 N. J. 295. Eq. 159; Scholl's Will, 100 Wis. 050. 1T8 LAW OF WILLS. CHAPTER XII. EXTRINSIC ELEMENTS OF A WRITTEN WILL OF THE ORDINARY TYPE. Part I — Introduction. §157. History of the Law of the Extrinsic Elements of Wills. As to their extrinsic elements, as distinguished from the inherent elements,^ wills may be divided into written and nnncnpative or oral. Written wills again may be divided into written wills of the ordinary type, holographic wills, mystic wills, and nuncupative wills under the Louisiana Code. In this chapter, after a general discussion of the history of the law of the extrinsic formalities of wills, and the general place and scope of modern statutes upon the subject of formalities, a detailed discussion of the extrinsic elements of a written will of the ordinary tA^e will follow, leaving the topics of the holographic will, the mystic will, and the nuncupative will for further discussion.^ In tracing the gradual development of the law of the ex- trinsic elements of a valid mil or testament, a sharp distinc- tion must l)e made between the history of the law of wills and that of testaments. The Statute of Wills, 32 Hen. VITI, c. I, Sec. 2, which created the right of making a will of lands, provided that specified interests in realty could be devised by their o^vner "bv 1 See Sec. 42. 2 See Ch. XIII. LAW OF WILLS. 179 his last will or testament in writing." ISTo further fonnalities were imposed by this statute/"' The first formalities in addition to the requirement of a writing were imposed upon devises of realty by the Statute of Frauds, 29 Car. II, c. 3, Sec. 5, which provided that devises of land "shall be in writing and signed by the party so de- vising the same, or by some other person, in his presence, and by his express direction, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of no effect." "■- The further formalities required by the later statutes (the chief of which is that the will must be signed at the end) are discussed under their respective headings.^ Testaments were governed by the ecclesiastical law. Orig- inally the ecclesiastical courts enforced even the oral wishes of the decedent; but in course of time oral wishes were enforced only in certain specified cases.^ The testament, except in the cases where a nuncupative will was enforced, was required to be in writing, ^o further formalities were required. If testa- tor assented to the instrument it was .not necessary that he sign it,^ or that it be subscribed. by attesting Avitnesses.^ It was not 3 See Sec. 15, note. See Part II, and following parts 4 29 Car. 11, e. 3, Sec. 5: "and of this chapter. be it further enacted by the au- 6 See Ch. XIII, Nuncupative thority aforesaid. That from and Wills, after the said four and twentieth 7 Frierson v. Beall 7 Ga. 438 • day of June (1677) all devises Mealing v. Pace, 14 gL 596; Watts and bequests of any lands or tene- v. Public Administrator, 4 Wend, ments, deviseable either by force of 168; McLean v. McLean, 6 Himi. the statute of wills, or by this stat- (Tenn.) 452. ute, or by force of the custom of & Ex parte Henry, 24 Ala. 638; Kent or the custom of any borough, Frierson v. Beall, 7 Ga. 438 ; Watts or any other particular custom, v. Public Administrator, 4 Wend, shall be in writing, and signed by (N. Y.) 168; Johnson v. Fry, 1 the party so devising the same, or' Cold. (Tenn.) 10; Morris v. Swaney, by some other person in his presence 7 Heisk. (Tenn.) 591. and by his express directions, and It is, of course, necessary that shall be attested and subscribed in witnesses be called to show testa- the presence of the said devisor by tor's assent to the will ; though they three or four credible witnesses, or need not subscribe. Suggett v. else they shall be utterly void and Kitchell, 6 Yerger (Tenn.) 425; of no effect." Moore v. Steele, 10 Hum. (Tenn.) 562. 180 LAW OF WILLS. necessary that the testament be a holograph, that is, in testator's handwriting. An unsigned paper, not in testator's handwriting, and not sigTied by him, could be probated as his testament if the evidence showed that he intended it as his testament.* The Statute of Frauds, already quoted,^ *^ did not affect testaments. The danger of fraud in the informal instruments, which were upheld by the courts, became so evident that stat- utes were passed in England in the first half of the nineteenth century,^ ^ and in the different states .of this country at dif- ferent dates, in many cases earlier than the date of the English statute, imposing upon testaments of personalty substantially the formalities requisite to a will of lands. The original free- dom of wills and testaments from set formalities persisted longer as to testaments of personalty than as to wills of realty.-^ ^ Indeed, in some jurisdictions testaments of per- sonalty are still less formal instruments than wills.-^^ §158. General scope of modern statutes. An instrument may possess all the inherent elements of a will, and yet be of no effect in law, because it lacks some of the additional requisites which are classified here as extrin- sic formalities. These formalities are added by statute. In every case therefore the question of the validity of the will, apart from its inherent elements, depends upon the construc- tion of the statute by which such formalties are required. The discussion of the subject is somewhat simplified by the disposition of American states to adopt the statute law of England, or of the other states of the Union, rather than to make new statutes based on original principles. The cases may, therefore, be arranged in groups which are decided under similar statutes and which are not opposed in principle by other classes decided under diverse statutes, though they should 9 McLean v. McLean, 6 Hum. 452. Hunt v. Hunt, 4 N. H. 434 ; Gage 10 29 Car. II, c. 3, Sec. 5. v. Gage, 12 K H. 371; Marston v. 11 1 Vict. c. 26, Sec. 9. Marston, 17 N. H. 503. 12 Very v. Very, 3 Pick. 374; isVestry of St. John's Parish v. Bartlett v. Monroe, 21 Pick. 98; Bostwick, 8 App. D. C. 452; Orgain Kendall v. Kendall, 24 Pick. 217: v. Irvine, 100 Tenn. 193. LAW OF WILLS. 1^1 be carefully distinguished from them. These statutes are ex- clusive by their terms since they provide substantially that no will shall be of any effect unless made in compliance with them. Since the legislature has full power to provide for the form and validity of wills/ ^ it follows that these statutes must be substantially complied with or the will will be invalid. ^^ A will can only be either valid as complying with the stat- ute, or void as in disregard of it.^*' The formalities required by statute may be classified as : Writing, signature by testator tor, competency of witnesses, attestation and signature by witnesses, and, in some states, publication. Part II— Writing:. §159. Writing materials which can be used. Under the different codes a will, with the exception of the nuncupative will, must be in writing. Verbal additions can not alter a written will.^^ It is generally held, in the absence of special statutory requirements, that any material which can be used to write upon may be used.^^ As to the material with which the writing is done, ink is, of course, the best at our disposal. This may be applied with a pen, as in ordinary writing, or the will may be printed or lithographed or type- written. "Writing includes printing." ^^ It may be written also in lead pencil.^*^ But it has been held that a will written i*See Sec. 21 Barker v. Bell, 46 McFadin v. Catron, 120 Mo. 252; Ala. 216. Smith v. Smith, 54 N. J. Eq. 1. 15 Walton v. Kendrick, 122 Mo. is Rymes v. Clarkson, 1 Phill. 22. 504; Catlett v. Catlett, 55 Mo. 330; i9 Henshaw v. Foster, 9 Pick. 312. Simpson v. Simpson, 27 Mo. 288; _ Roush v. Wensel, 15 O. C. C. 133; St. Louis Hospital Association v. Temple v. Mead, 4 Vt. 535. Williams, 19 Mo. 609 : Voorhis's 20 Harris v. Pue, 39 Md. 535 ; Will, 125 N. Y. 765 ; Luper v. Werts, Myers v. Vanderbilt, 84 Pa. St. 19 Ore. 122. 510; Knox's Estate, 131 Pa. St. 16 "We know nothing about 'void- 220; Tomlinson's Estate, 133 Pa. able wills'." McGee v. Porter, 14 St. 245; Bell Co. v. Alexander, 22 Mo. 611. Tex. 350. "Knight V. Tripp, 121 Cal. 674; 182 LAW OF WILLS. on a slate is so easy to alter that it should not be recognized as a valid will.^^ This seems to add to the requirements of the statute by judicial construction. §160. Language in which the will may be written. The will may be written in any language. It is not neces- sary that it be in English f^ nor that it be in a language with which the testator is acquainted.^** Under the doctrine of animus testandi, however, the testa- tor must know the nature of the act which he is performing; and the fact that the will is drawm up in a language which he does not understand may be important as showing that he did not execute the instrument animo testandi.^'^ §161. "Writing on several pieces of paper. Under statutes which require that a will be in writing a will may be written upon several pieces of paper.^^ The will is valid even where testator's signature is on a piece of paper separate from the dispositive clauses of the will.^^ It is not 21 Reed v. Woodward, 11 Phila. lington, 174 Pa. St. 187; Ginder v. (Pa.) 541. Farnum, 10 Pa. St. 98; Wikoff's 22 /n re Cliff's Trusts (1892), Appeal, 15 Pa. St. 281; Gass v. 2 Ch. Biv. 229. Gass, 3 Hump. (Tenn.) 278. 23 Hoshauer v. Hoshauer, 26 Pa. "It is not necessarily an objec- St. 404; Dickinson v. Dickinson, 61 tion to a will that it is written on Pa. St. 401 ; Walter's Will, 64 Wis. several separate pieces of paper. 487. Such fact is not fatal to the validity 24 Miltenberger v. Miltenberger, of the will. All that is required is, 78 Mo. 27; 8 Mo. App. 306. (In that all the separate sheets of paper this case there was no proper execu- should be in the room and in the tion ; as the evidence tended to show presence of the attesting witnesses." that testatrix did not understand Harp v. Parr, 168 111. 459, citing the .legal effect of the transaction.) Bond v. Sea well, 3 Burr. 1773; Ela 25 Bond v. Seawell, 3 Burrows, v. Edwards, 16 Gray, (Mass.) 91; 1773; Barnewall v. Murrell, 108 Wikoff's Appeal, 15 Pa. St. 281; Ala. 366; St. John's Parish v. Bost- Gass v. Gass, 3 Hump. (Tenn.) wick, 8 App. D. C. 452; Jones v. 278. Habersham, 63 Ga. 146; Harp v. 26 Cook v. Lambert, 3 Sw. & Tr. Parr, 168 111. 459; Ela v. Edwards, 46; 32 L. J. P. 93; 9 Jur. (K S.) 10 Gray. (Mass.) 91; Burnham v. 258; 9 L. T. 211; 11 W. E. 401- Porter, 24 N. H. 570 ; Grubb v. Dar- LAW OF WILLS. 183 necessary that these papers be fastened together if their sense connects them each one with the preceding.-^ A will written on separate pieces of paper, with but one paragraph on some of the pieces, and with blank spaces at the top and bottom of each piece, was held to comply with the statute. In this case the papers were sewed together with thread.^^ The i3resumption is that the will was executed in the form in which it is found to exist at the death of the testator.*^ This presumption may be rebutted, and it may be shown that sheets of paper have been destroyed, rewritten or transposed.^ ^ In such case the will as it was executed is the valid one, unless the changes have amounted to such revocation as invalidates the will in whole or in part.^^ Still more is a will valid which is written upon two sheets of paper pasted together so that testator's signature came just below the line of union. ^^ §162. Incorporation of documents. From the proposition that a will may be written upon dif- ferent pieces of paper connected only by the sense it follows that a will may by reference incorporate into itself as com- pletely as if copied in full some other paper which in itself is not a will for lack of execution.^^ In order so to incor- porate, three things are necessary. 27WikoflF's Appeal, 15 Pa. St. Estate, 67 Cal. 585 ; Young's Estate, 281; Martin v. Hamlin, 4 Strobh 123 Cal. 337 ; Wiley's Estate (Cal.). (S. Car.) 188. 56 Pac. 550; Newton v. Society, etc., 28 Barnewall v. Murrell, 108 Ala 130 Mass. 91; Smith v. Smith, 54 366. X. J. Eq. 1 ; Tonnele v. Hall, 4 N. Y. 29Rees V. Rees, L. R. 3 P. & D. 140; Gerrish v. Gerrish, 8 Ore. 84 ; Marsh V. Marsh, 1 S. & T. .528 ; 351; 34 Am. Rep. 585; Ford v. Barnewall v. Murrell, 108 Ala. 366. Ford, 70 Wis. 10; Skinner v. Amer- 30 Varnon v. Varnon, 67 Mo. App. ican P.ible Society, 92 Wis. 209 ; 534. See Ch. XV. ■ Mortgajxe Trust Company v. Moore, 31 See Sees. 260 and 276. 150 Ind. 465; Fesler v. Simpson, 32 Lamb v. Lippencott, 115 Mich. 58 Ind. 83. 611. While the weight of authority is, 33 Shillaber's Estate, 74 Cal. 144; as given in the text, it was queried 5 Am. St. Rep. 433; Skerrett's in Phelps v. Robbins, 40 Conn. 250, 184 LAW OF WILLS. 1. The will itself must refer to such paper to be incor- porated (a) as being in existence at the time of the execution of the will,^^ and (b) in such a way as to reasonably identify such paper in the will,^^ and (c) in such a way as to show testator's intention to incorporate such instrument in his will and to make it a part thereof. ^"^ Thus a paper placed with a will is not a part thereof where the will shows no intention to incorporate it.^^ 2. Such document must in fact be in existence at the time of the execution of the will.^^ If this were not the rule tes- tator could, by executing a will and incorporating therein a document to be executed in the future, create for himself a power to dispose of his property in a testamentary manner by an instrument not executed in accordance with the statute of wills.^^ 3. Such instrument must correspond to the description if incorporation l\y reference is pos- sible, and it was observed that in Connecticut no case of the sort had been presented in a liundred and fifty years. And in Booth, v. Baptist Church, 126 X. Y. 215, the court said: "It is unquestionably the law of this state that an unattested paper which is of a testamentary charac- ter can not be taken as a part of the will, even though referred to by that instrument." In this case the instrument in question was referred to in the will thus: "Among my papers will be found a memorandum of the various securities I have selected for the payment of the several lagacies." Among his papers was the instru- ment referred to, headed "List of securities which I wish transferred to different institutions under my will of February, 1885." and signed by testator. The codrt held that it was not incorporated in the will and cited and followed Langdon v. Astor, 16 N. Y. 9: Williams v. Freeman, 83 N. Y. 561; O'Neill's Will, 91 X. Y. 516. 34 Durham v. Northern (1895), Prob. 66; 6 Rep. 582; Goods of Kehoe, 13 L. E. Ir. 13; Smith v. Smitli, 54 N. J. tq. 1. But it is not necessary that it should be present when the will is executed. Willey's Estate (Cal.) (1900), 60 Pae. 471. 35 Young's Estate, 123 Cal. 337; Newton v. Society, etc., 130 Mass. 91 ; Chambers v. McDaniel, 6 Ired. Law (N. C.) 226; Skinner v. Amer- ican Bible Society, 92 Wis. 209. 36 Young's Estate, 123 Cal. 337; Magoohan's Appeal, 117 Pa. St. 238; Hunt, ex rel v. Evans, 134 111. 496; 11 L. R. A. 185; Zimmerman V. Hafer, 81 Md. 347; 32 Atl. 316. 37 Magoohan's Appeal, 117 Pa. St. 238. 38 St. John's Parish v. Bostwick, 8 App. D. C. 452. 39 Dennis v. Holsapple, 148 Ind. 297; Chase v. Stockett, 72 Md. 235. LAW OF WILLS. 185 thereof in the will and must be shown to be the instriunent therein referred to.^^ In discussing incorporation by reference it must first be observed that these three requisites must co-exist in order to incorporate a foreign paper into the will. The absence of any- one of them will prevent suth incorporation. §163. Incorporation of documents. — Reference to document. The will must refer to the instrument to be incorporated as in existence. A reference in the will to the instrument incorporated as "made or to be made" does not refer to it clearly as being in existence ;^^ nor does a reference to it as a schedule of property "hereafter named." ^^ Since the doc- ument to be incorporated must be referred to in the will as in existence at the date of executing such will, it follows that, in the absence of such reference, parol evidence is not admis- sible to show that the document was in existence at the time of executing the will.^^ §164. Incorporation by the use of asterisks. The testator sometimes indicates by the use of asterisks, or by such words as "See next page," that a clause written upon the back of the will, following the signature and an attestation clause, is to be considered as a part of his will. In some ju- risdictions this is treated as a part of the will.^^ The reason for including it is that it is a separate document incorporated into the will by reference.^^ An additional reason has been urged that, where all the writing is upon one piece of paper, or where the annexed provisions are on a piece of paper fas- tened to the will, the will is to be considered as signed at the 40 Brown v. Clark, 77 N. Y. 369; 43 Durham v. Northern (1895), Baker's Appeal, 107 Pa. St. 381. Prob. 6G : 6 Rep. 582. 41 Dunham v. Northern (1895), 44 i^ Goods of Thomas Greenwood Prob. G6: 6 Rep. 582: In re Skair, (1892), P. 7 ; 66 L. T. 61; Goods 5 No. Cas. 57; In re Astell, 5 No. of Brit, 24 L. T. R. 142; Baker's Cas. 489»i. Appeal. 107 Pa. St. 381. 42 Singleton v. Tomlinson, 3 App. 45 See eaeee under last note. Cas. 414. 186 LAW OF WILLS. end thereof. On this theory the end is taken as the end in point of sense, and not the end in point of space, and the theory of incorporation by reference is unnecessary.'*® Thus where the will was written upon a piece of paper so folded as to make four pages it was signed on page three. Above the signature appeared "4th. See next page." Upon the fourth page appeared "4. ," followed by a bequest to A. This clause on the fourth page was held to be a part of the will upon both theories suggested.'*'^ In New York a clause so referred to is held not to be part of the will on the ground that such will is not signed at the physical end thereof, and that such additions are not so de- scribed in the will as to be incorporated by reference."*^ Like- wise, where the dispositive part of the will completely filled the blank on which the will was written and ended with the words "Carried to back of will," and on the back appeared "Continued ," followed by bequests and then the words "Signature on face of will," the addition was held not to be a part of the will, and the whole will was invalidated, as not being signed at the end thereof.^^ So there was a similar holding where before the attestation clause appeared the words "See annexed sheet," and a piece of paper with dispositive pro- visions was fastened to the will by metal fasteners.^ *^ These cases are in direct conflict. The Xew York courts attempt to distinguish the English cases on the ground of the different language of their respective statutes, but no such dis- tinction can be urged against the Pennsylvania case, which, with statute similar to that of Xew York, follows the English doctrine. 46 Baker's Appeal, 107 Pa. St. tary provisions not authenticated 381. according to the provisions of our 4" Baker's Appeal, 107 Pa. St. Statute of Wills has yet been held 381. to be a part of a valid testamentary *8 Sisters of Charity v. Kelly, 67 disposition of property simply be- N. Y. 409 ; Conway's Will, 124 N. Y. cause it was referred to in the 455; Whitney's Will, 153 X. Y. 259; body of the will." Conway's Will, Andrew's Will, 162 X. Y. 1. 124 X. Y. 455. citing O'Xeil's Will. 49 Conway's Will, 124 X. Y. 455. 91 X. Y. 51G; Hewitt's Will, 91 See Sees. 182 and 186. X. Y. 261. "It is not believed that any paper so Whitney's Will, 153 X. Y. 259. or document containing testamen- LAW OF WILLS. 187 §165. Actual existence of document at time of execution of will. The reference in the will to the document as already in ex- istence is not conclusive. It must be sho\^Ti further that the document sought to be incorporated was, in fact, in existence at the time of the execution of the will.^^ Thus where the will referred to a document as in existence at the date of executing such will, and the evidence showed that such doc- ument was not completed till two months afterwards, it was held that such document was not to be treated as part of the will.^^ AVhere the document referred to is written after the will is executed, even if immediately thereafter and on the same day, it can not be regarded as part of the will.^^ §166. Identification of document to be incorporated. The document sought to be incorporated in the will by reference must be so described in the will that this descrip- tion, together with evidence of the identity and genuineness of the document, will be sufficient to show that it is the doc- ument referred to in the will.^^ If the will is drawn in such vague or inaccurate terms that the document produced can be identified with that mentioned in the will only by extrinsic evidence dehors the will or contradicting its description, such document can not be taken as a part of the will, since such 61 Vestry of St. John's Parish v. Phelps v. Eobbins, 40 Conn. 250; Bostwick, 8 App. D. C. 452; Thayer Xewton v. Society, 130 Mass. 91; V. Wellington, 9 Allen, 283; Lang- Allen v. Boomer, 82 Wis. 364. don V. Astor, 16 N. Y. 9; In re "Before such an extrinsic docu- Shillaber, 74 Cal. 144; 5 Am. St. ment maybe so incorporated, the de- Rep. 433. scription of it in the will itself 52 Shillaber's Estate, 74 Cal. 144 : must bo so clear, explicit and un- 5 Am. St. Rep. 433; Vestry of St. ambiguous as to leave its identity John's Parish v. Bostwick, 8 App. free from doubt. The identification D. C. 452. of the paper must be had from a 53 Shillaber's Estate, 74 Cal. 144; description given in the will itself; 5 Am. St. Rep. 433, otherwise the will is not wholly in 54 Habergham v. Vincent. 2 Ves. writing as our law requires, but Jr. 228; Allen V. Maddock, 11 Moore rests partly upon a writing and P. C. 427; Young's Estate, 123 Cal. partly in parol." Young's Estate, 337; Skerrett's Estate, 67 Cal. 585; 123 Cal. 337. 188 LAW OF WILLS. a will would be in part oral, aud hence in violation of the Statute of Wills.^^ Thus a direction in a will that "two deeds" shall be handed to the husband of testatrix upon her death does not so identify the deeds as to incorporate them by reference. The fact that the deeds were placed with the will does not supply the lack of identification; nor does ex- trinsic evidence.^^ Where the will referred to "the enclosed papers numbered 1, 2, 3, 4, 5 and 6/' and recited that such papers were signed by testator in the presence of the attesting witnesses, it was held that these papers were not sufficiently identified, especially as the witnesses did not see the papers sought to be incorporated.^^ A description of a document as "written instructions in my handwriting to be left with my will" was held insufficient as an identification.^^ A testator by will provided that A should have certain household furniture, "which she has got a list of." A pro- duced a list which purported to be a list of goods given to her son B. Such list was held not to be a part of the will, since it could be made a part only by extrinsic evidence con- tradicting the description in the will.^^ A reference to "a deed of gift" by testator to his son is not such description as will incorporate the deed.^° But inasmuch as no written recitals can ever prove their o^vn genuineness, a document referred to in a will may be incorporated, even though ex- trinsic evidence is necessary to identify the document referred to by showing that it is in fact the document described in the will. The fact that the description of the document given in the will is not so exhaustive as to make identification unneces- sary is therefore no objection to incorporating an extrinsic document, as such description would be practically impossi- csMardmnt's Estate (1893), P. 57 Garnett's Estate (1894), P. 90. 254; Smart v. Prujean, 6 Ves. ss phdps v. Robbing, 40 Conn. Jr. 560; Habergham v. Vincent, 2 250. Ves. Jr. 228 ; Goods of Greves, 1 so Goods of Greves, 1 Sw. & Tr. Sw. & Tr. 250; Young's Estate, 123 250. Cal. 337; Phelps v. Robbins, 40 go Bailey v. Bailey, 7 Jones (N. Conn. 250; Chambers v. McDaniel, Car.) 44; Tuttle v. Berryman, 94 6 Ired. Law (N. Car.) 226. Ky. 553. 56 Young's Estate, 123 Cal. 337. LAW OF WILLS. 189 ble, at least Avitboiit copying such instrument bodily into the will.^^ Thus a description "according to the directions writ- ten in a book by Melvin W. Pierce, signed by me, Alexander De Witt, and witnessed by said Melviu W. Pierce," was held a sufficient identification.^" So a statement that a certain dis- position of property was made in pursuance of an agreement with the husband of testatrix "as expressed in his will" was held to incorporate the husband's will in that of testatrix, probably. ^^ So a description "the deed which I send you a copy of" was sufficient where a copy of the deed was in fact enclosed in the same letter with the will.®^ A reference to a deed by giving the parties and the date of the deed is a sufficient description,*'^ as is a reference to a note by giving the parties and amount.^® §167. Effect of incorporation of document in will. If the document is of such nature and is so referred to in the will as to comply with the requirements already given, it is treated as part of the will, and as if it were set forth therein in full.^^ If incor])orated by reference it makes no difference whether the original document of itself was valid at law or not. Thus a deed invalid because of defective execution,^^ or because it never was delivered,^'-^ may be incorporated in a will. But it has been held that the incorporated document is not such a part of the will that it should be offered for probate in connec- tion with the will.'^'^ But where the will does not so refer to another document as to incorporate it as a part of the will, 61 Skerrett's Estate, 67 Cal. 585; Loring v. Summer, 23 Pick. (Mass.) Xewton V. Society, 130 Mass. 91 ; 98. Allen V. Boomer, 82 Wis. 364. 67 /„ re Soher's Estate, 78 Cal. 62 Newton v. Society, 130 Mass. 477; Fickle v. Snepp, 97 Ind. 289; 91. Ford V. Ford, 70 Wis. 19. 63 Allen V. Boomer, 82 Wis. 364. es Skerett'c Estate, 67 Cal. 585. 64 Skerrett's Estate, 67 Cal. .585. 69 Mortgage Trust Company V. 65 Bizzey v. Flight, L. K. 3 Ch. Moore, 150 Ind. 465. Div. 269; Sheldon v. Sheldon, 1 to /^ re Marchant (1893), Prob. Rob. 81; Fesler v. Simpson, 58 Ind. 254; Tuttle v. Berryman, 94 Ky. 83. 553. 6« Fickle V. Snepp, 97 Ind. 289: 190 LAW OF WILLS. siicli other document may still be treated as a declaration of trusts if the will devises property in trust; and may thus be indirectly enforced.'^^ §168. Reference to verbal instructions. Verbal instructions can not be incorporated into a written will by any words of reference, however clear, since by statute the will must be in writing."^ §169. Document used to identify beneficiary. Testator may refer to some other document solely for identi- fication of the beneficiaries of his will, which is of itself com- plete, except as to such identification. Where this is the sole object of the reference to such other document the ordinaiy rules of incorporation do not apply. The document may not be specifically described,'^^ and may not even be in existence at the time.'^^ Part III — Sig:natufe of Testator. §170. Necessity of seal. Unless the statute specifically requires it, a will need not be under seal, even in jurisdictions where a seal is necessary to the validity of a deed.'^° Even where the testimonium clause contains the word ''seal," the omission of a seal does not inval- idate the vall.'^® 71 Marchant-'s Estate (1893), P. 75 Smith v. Evans, 1 Wils. (Eng.) 254. 313; Doe v. Pattison, 2 Black., 72 Oliffe V. Wells, 130 Mass. 221; (Ind.) 355; Avery v. Pixley, 4 Smith V. Smith, 54 N. J. Eq. 1; Mass. 460; Ketchum v. Stearns, 76 Sims V. Sims, 94 Va. 580 ; 27 S. E. Mo. 396 ; 8 Mo. App. 66 ; Diez's 436 (a private trust upon verbal Will, 50 N. Y. 88; Williams v. instructions). Burnet,' Wright (Ohio) 53; Hight 73 Dennis v. Holsapple, 148 Ind. v. Wilson, 1 Dall. 94; Rhorer v. 297; 46 L. R. A. 168. Stehman, 1 Watts, 442. 74 Piffard's Estate, 111 N. Y. 410; 76 Ketchum v. Stearns, 76 Mo. 2 L. R. A. 193. 396: 8 Mo. App. 66. LAW OF WILLS. 191 ^171. Methods of signing-. The modern codes usually require a will to be signed as a requisite to its validity.^^ The signature required may under most statutes be made in two ways: 1. By the testator himself. 2. By some other person authorized by the testator in the manner required by statute. The signature by the testator himself may consist either of his own name or of his mark. But in some states testaments of personalty do not need the signature of the testator.''^^ §172. Signature by name. The testator may sign his name by writing it out in full or by abbreviating it, or by writing his initials^^ or his Christian name,^*^ or by using an assumed name where not done with in- tent to deceive.^^ Misspelling the name signed does not inval- idate the will.^2 The signature may be in ink or with a pen- cil,^^ or with a stamp,*^ or a seal.*^ §173. Signature by mark. The signature may consist of a mark. This is usually in the form of a cross, about which someone writes the name of the testator and the words "His mark." The law, however, does not usually require such form ; any lines visible on paper which were put there by testator as his signature is a mark in "' Remington v. Bank, 70 Md. 546. tator's initials was held to be a Under tlie early Pennsylvania good signature, statute, if testator were prevented ^"^ Knox's Appeal, 131 Pa. St. 2.30 ; by his last illness from signing or Guilfoyle's Will, 96 Cal. .598. asking another to sign, his unsigned si In re Redding, 2 Rob. 3.39 ; 14 will would be valid. Showers v. Jur. 1052: In re Glover, 11 Jur. Showers, 27 Pa. St. 485. 1022. Ts Orgain v. Irvine, 100 Tenn. 193. 82 Word v. Whipps, 28 S. W. 151 79 Goods of Emerson. 9 L. R. Ir. (Ky.) (no ofdcial report). 443; In re Savory, 15 .Jur. 1042; 83 Knox's Estate, 131 Pa. St. 220. Jacob's Will, 21 W. X. C. (Pa.) 84 Jenkyns v. Gaisford, 3 S. & T. 510. In Goods of Emerson, 9 L. R.. 93; 32 L. J. Prob. 122. Ir. 143. a seal stamped with tes- sr, Goods of Emerson, 9 L. R. Ir. 443. 192 LAW OF WILLS. the contemplation of the law.^^ Even where testat^Di is erro- neously named in the will and signs by mark the will is valid if executed aniino testandi.^'^ A different view was expressed in an early Pennsylvania case, in which the court said : "A naked mark is not a signa- ture at common law, and the statute was not designed to make it so.*^ The signature by initials or by an assumed name has been upheld on the theory that it is good as a mark. So the indistinct name of the testator may be good as a signature by mark.^^ But where testator tried to sign the ^yill himself, and was unable to do so from weakness, a small line made by him in such imsuccessful attempt, not intended by him as a signature, is not a mark within the meaning of the law.^*^ 86 Guthrie v. Price, 23 Ark. 396; Bailey v. Bailey, 35 Ala. 687 ; In re Guilfoyle's Will, 96 Cal. 598 ; Beve- lot V. Lestrade, 153 111. 625; Robin- son V. Brewster, 140 111. 649 ; Rook V. Wilson, 142 Ind. 24; Cleveland V. Spielman, 25 Ind. 95: Scott v. Hawk, 107 lo. 723; Thompson v. Thompson, 49 Neb. 157 ; Nicker son V. Buck, 12 Cush. 332; Sheehan v. Kearney, — Miss. — ; 21 So. 41; Stephens v. Stephens, 129 Mo. 422; Higgins V. Carlton, 28 Md. 115; Jackson v. Jackson, 39 N. Y. 153; Pool V. Buffman, 3 Ore. 438; More- land V. Brady, 8 Ore. 303; Flan- nery"s Will, 24 Pa. St. 502; Van HansAvj'ck, v. Wiese, 44 Barb. 494; Keeney v. Whitmarsh, 16 Barb. 141 ; Jenkins's Will, 43 Wis. 610. "Whatever testator . . . was shown to have intended as his sig- nature was a valid signing, no matter how imperfect or unfinished or fantastical or illegible or even false the separate characters or sym- bols used might be when critically judged.'-" Plate's Estate, 148 Pa. St. 55, quoted in Sheehan v. Kearney (Miss.) 35 L. R. A. 102. 87 Goods of Douce, 2 Sw. & Tr. 593; 31 L. J. P. 172; 8 Jur. (X. S.) 723; 6 L. T. 789. 88 Greenough v. Greenough, 11 Pa. St. 489. In this case a witness wrote testator's name and testator then made his mark. It was held that the name, not the mark, was the real signature; and that the witness who wrote testator's name must have been requested' so to do. The weight of authority is that on these facts the mark is the real signature. 89 Hartwell v. McMaster, 4 Redf. (i\. Y.) 389; Sheehan v. Kearney, — Miss.—; 21 So. 41. 90 Everhardt v. Everhardt, 34 Fed. Rep. 82; Plate's Estate, 148 Pa. St. 55. So where testator wrote three letters of his name and then said that he could not finish it, whereupon proponent made a mark, and completed testator's name, it was held that as testator had aban- doned the attempt to sign, the let- ters written by him were of no ef- fect as signature by initials or by mark, and the signature by pro- ponent was without authority. Knapp V. Reilly, 3 Dem. (X. Y.) 427. LAW OF WILLS. 193 This last proposition is only an application of the principle that the execution of the will must be animo testandi. In the cases cited the evidence showed that the testator had abandoned the execution of the will after attempting it in vain. In some jurisdictions a seal has been held a sufficient mark under the statute.®^ Unless required by statute it is not necessary that the name of the testator be written by the mark.^^ If the name by the mark is written incorrectly such mistake does not invalidate the will.'^^ xVnd where the statute requires that testator's name must be written by the mark by a person who writes his own name as a witness, this statute is complied with where the subscribing witness writes testator's name in the body of a will which is so short that testator's name is near the mark.^^ The illiteracy or ill health of testator is usually the cause for his signing by mark. In the absence of special statutory provisions as to when a signature by mark is valid it is not necessary, however, that any especial reason for his signing in this manner should exist. A testator who is able to write and who is in good health may, if he j^loases, make a valid signature by mark.^^ It is, however, an unsafe thing to do, as it may »i Townsend v. Pearce, 8 Vin. Abr. valid, it appearing clearly that tes- 142; PI. 3; Gryle v. Gryle, 2 Atk. tatrix was in fact the person in- 177. (These were cases of repub- tended. lication where testator's name was Goods of Clark, 1 Sw. & Tr. 22; already written, and the addition 27 L. J. P. 18; 4 Jur, (N, S.) 24; of the seal was a sufficient acknowl- 6 W. R. 307. edgment.) 94 Guilfoyle's Will, 9G Cal. 598. 02 /u re Bryce, 2 Curt. 325; Scott »5 Taylor (or Baker) v. Dening, V. Hawk, 107 lo. 723; 77 N. W. 3 N. & P. 228; 8 A. & E. 94; 1 W. 4G7; Thompson v, Thompson, 49 W. & H. 148; 7 L. J. Q. B. 137: Neb. 157. 2 Jur. 775; Upchurch v. Upchurch, 93 Goods of Clark, 27 L. J. P. 16 B. Mon. (Ky.) 102: St. Louis 18; 1 Sw. & Tr. 22: 4 Jur. (N. S.) Hospital v. Williams, 19 Mo. 609, 24; 6 W. R. 307; Bailey v. Bailey, St. Louis Hospital v. Wegman, 21 35 Ala. 687; Long v. Zook, 13 Pa. Mo. 17; Northcutt v. Northcutt, St. 400. 20 Mo. 266; Ray v. Hill, 3 Strob. Thus where testatrix was named (S. Car.) 29< ; Rosser v. Franklin, throughout the will by her name 6 Gratt. (Va.) 1. before marriage, the will was held Contrary view. In Pennsylvania 194 LAW OF WILLS. give rise to suspicions of fraud or forgery. Where the statute permits signature by mark "when the person can not write,'' physical inability as well as illiteracy is a good excuse for sign- ing by mark.^^ §174. Signature by other person. The codes usually require that the will must be signed "by testator." In construing this provision it is held that the usual rules of agency have no application, and that no person other than testator can sign the will for testator and in his stead, unless there is a provision of the statute especially authorizing such signature by another.^'^ Many of the codes provide that under certain conditions and in a specified manner some person other than testator may sign the will instead of testator.^^ At the risk of repetition it must be noted that in each par- ticular case the statute under which the will is executed must be complied with, and to determine what is such compliance the provisions of the statute must be carefully considered. The general principles underlying the statutes of most of the states are presented here; the details must be sought in the respective statutes. These statutes, as a rule, agree in requiring ( 1 ) That the other person must sign the will in the presence of testator. (2) That the other person must sign the will at the express direction of testator. the courts have held that some spe- tist Convention, 10 Paige (N. Y.) cial reason must appear for the 91 ; Stevens v. Van Cleve, 4 Wash, use of the mark, and in the ab- (U. S.) 262; Fritz v. Turner, 46 sence of such reason a will signed N. J. Eq. 515. by a mark is invalid. Cavett's Ap- 98 Riley v. Riley, 36 Ala. 496 ; peal, 8 Watts & S. 21 ; Greenough Toomes's Estate, 54 Cal. 509 ; Her- v. Greenough, 11 Pa. St. 489. bert v. Berrier, 81 Ind. 1; Haynes 96 Gnilfoyle's Will, 96 Cal. 598. v. Haynes, 33 0. S. 598 ; Peake v. 97 In re McElwaine, 18 N. J. Eq. Jenkins, 80 Va. 293 ; Jenkins's Will, 499: citing Robins v. Coryell, 27 43 Wis. 610. Barb. (N. Y.) 559; Chaffee v. Bap- LAW OF WILLS. 195 §175. Presence of testator. A signature of testator's name made by another out of his presence is not a valid signature under these statutes.^^ The 'presence of the testator' in this connection means exactly what it does when used with reference to the signing of the will by the subscribing witnesses thereto. The meaning of the word "presence" will therefore be discussed under the topic of At- testation.^*''^ It will be sufficient to state here that the name can not be written in the presence of testator unless testator is conscious of what is taking place, as well as physically pres- ent.^ °^ Further, it has been held a good signing in the testa- tor's presence where testator's name was written out of his presence ; but afterwards in testator's presence the person writ- ing testator's name added "By A. B., by request." ^^^ The name must be actually written by such other. If testator re- quests this other person to write his name and he refuse, no matter what his motive, such request is not a good execution.^ °" §176. Express direction of testator. The codes generally require that this signature by another person be at the express direction of the testator.^ '^^ The most common and safe form of express direction is one given in so many words by the testator. This, however, is not indispen- sable. He may give the express direction by adopting a sug- gestion of some other person as his own. Thus when the at- torney of the testator had drawn the will and then said to tes- tator: "You can make your cross and I can sign it for you, if you so direct;" and the testator said: "Very well, do so;'^ it was held to be an express direction to sign.^*'^ It has been intimated in obiters that the gestures and acts of the testator may amount to an express direction without the use of any 99 Catlett V. Catlett, 55 Mo. 330. io3 Strieker v. Groves, 5 Whart. 100 See Sec. 209, et seq. 386. (Witness refused solely be- 101 Diinlop V. Dunlop, 10 Watts, cause ot a misapprehension of the (Pa.) 153; Chappell v. Trent, 90 law.) Va. 849. io4Greenough v. Greenough, 11 102 Ex parte Leonard, 39 S. Car. Pa. St. 489. 518. losMullin's Estate, 110 Cal. 252.. 196 LAW OF WILLS. words; and this is undoubtedly true.^^^ But the fact that the testator knows that someone is signing his name to the will and makes no objection does not amount to an express direc- tion.!*^"^ In some states there must be some special reason, such as illiteracy or extreme sickness, why testator does not sign the will himself. But where this is the rule only a reasonable excuse is needed for his requesting another to sign. Thus, where he was physically and mentally able to sign, but it would have been very dangerous for him to make such exertion, it is held that he may sign by another.^ ^^ • §177. Who can sign for testator? In addition to the requirements of statute the courts have considered in this connection two more important topics: (3) Who can sign the will for testator. (4) What form of signature must be used in signing the will. In the absence of special statutory restriction, any person may sign the will for testator if properly authorized. Thus, one of the subscribing witnesses^ "^^ or a beneficiary may sign the will for testator.^^^ §178. Form of signing for testator. The best method of signing the will in such case is to write the name of testator, followed by the statement that it was written by subscriber, naming such subscriber, in the presence 100 Waite v. Frisbie, 48 Minn. Law Bulletin Supplement, 50 (no 420. official report). Ex parte Leonard, lOT Waite v. Frisbie, 45 Minn. 39 S. Car. 518; Toomes's Estate, 361: 48 Minn. 420: Murry v. Hen- 54 Cal. 309; In re Langan, 74 Cal. nessy. 48 Neb. 608, citing Asay v. 353; Herbert v. Berrier, 81 Ind. 1; Hoover, 5 Pa. St. 21 ; Grabill v. Riley v. Riley, 36 Ala. 496. Bear, 13 Pa. St. 396; Greenough noMcGee v. Porter, 14 Mo. 611. V. Greenough, 11 Pa. St. 489. This seems to be the holding of the 108 Diehl V. Rogers, 169 Pa. St. court in this case, though the will 316; 47 Am. St. Rep. 908. was declared invalid on account 109 Trembly v. Trembly (Ohio Su- of a technical defect in attestation, preme Ct. Commission ) , 11 Weekly 197 LAW OF WILLS. of testator and at his express request. But such accuracy of statement is not indispensable unless demanded by the provi- sions of the statute. In some jurisdictions some such accuracy is required by the provisions of the statute.-^ Thus m Mis- souri the person who ™te testator's name had to add his name as a subscribing witness to the will and to state that he sub- scribed testator's name at his request or the will was void Under a somewhat similar New York statute it was held that if one who signed a will for testator omitted to sign his own name the will was not thereby invalidated, though such wit- ness incurred a penalty.^ ^^ In the absence of specific statutory provision the signature of testator's name seems to be all that is necessary.-^ A signature "A. B. by C. D. in his presence and at his request" was held valid.^^^ Signatures have also been held valid where the witness signs his own name first and adds that it is for testator. Thus "E. N. for R. D. at her re- quest" was upheld, R. D. being the testatrix.^^« So has "Writ- ten by T. J. R. in the presence of A and B and W. M. R. T. J R., witness. By request of the above W. M. R.," W. M. R. being the testator ;i^^ and it has been held a valid signature where the person signing wrote "Signed on behalf of testator, in his presence and by his direction by me," and signed his own name thereto.^ ^^ §179. Name of testator added by other to his mark. It has been said already that the best way of signing by mark is for the testator to make his mark and for some other person who can write to put testator's name by his mark. Is 111 In the matter of the will of ii4 Haynes v. Haynes, 33 0. S. Cornelius, 14 Ark. t)75: McGee v. 598. Porter, 14 Mo. Gil; Pool v. Buf- us Abraham V. Wilkms, 17 Ark. fum, 3 Ore. 438. 292. 112 McGee v. Porter, 14 Mo. 611; ne Vernon v. Kirk, 30 Pa. bt. Northcutt V. Northcutt, 20 Mo. 266 ; 218. Simpson v. Simpson, 27 Mo. 288. n^ Riley v. Eiley. 36 Ala. 496. The last case notes a change in the us In re Clark, 2 Curt. 329. Missouri statute on this point. 113 Hollenbeek v. Van Valken- burirh, 5 How. Pr. 281. 198 LAW OF W1T.LS. this a signature by the testator or by another? Some courts have held that the addition of testator's name, if by his di- rection, has the effect of a signature by another person.^ ^^ The effect of such holding under the former Missouri statute was remarkable. If testator signed by his mark the will was valid, but if at his request some one wrote testator's name by the mark the will was thereby rendered invalid, unless such person also added the statement that he signed testator's name at his direc- tion and subscribed his own name as a witness.^ ^" The more logical view is that if the testator has signed by a mark the will is valid, even if some one has added testator's name, since the signature may be ignored and the will regarded as signed by mark only.^^^ Hence, if by mistake the wrong name is written by the mark the signature is not invalidated thereby.^ ^^ But, on the other hand, where testator's name was written, leaving a place for a mark, and no mark has been inserted, it is held that such a signature may be treated as a signature by another. Thus a will was produced with a signature "A (his mark) B," but no mark was made. It appearing that the will was exe- cuted as a finality, it was assumed, in the absence of the mark, that testator had adopted as his own his name written by an- other about the place where the mark was to be inserted.^^^ §180. Guiding the hand of testator as signature by testator. It not unfrequently happens that the testator's hand is guided by some other person when he signs his name or makes his mark. In such case this is a signing by the testator him- self, and not by the person who guides his hand.^^^ So where 119 St. Louis Hospital Associa- Jackson, 39 N. Y. 153; Moreland tionv. Williams, 19 Mo. 609; North v. Brady, 3 Ore. 303. cutt V. Northcutt, 20 Mo. 266; St. 122 Rook v. Wilson, 142 Ind. 24. Lonis Hospital Association v. Weg- 123 Cleveland v. Spilman, 25 Ind. man, 21 Mo. 17; Pool v. Buffum, 8 95. Ore. 438; Tucker v. Sandidge, 85 124 Wilson v. Beddard, 12 Sim. 28 ; Va. 546. 10 L. J. Ch. 305; 5 Jur. 624; Vines 120 See cases cited in above note. v. Clingfost, 21 Ark. 309; Higgins 121 In the matter of the will of v. Carlton, 28 Md. 115; Sheehan Cornelius, 14 Ark. 675; Eook v. v. Kearney, — Miss. — ; 35 L. R. Wilson, 142 Ind. 24; Jackson v. A. 102«, 21 So. 41 ; citing Watson v. LAW OF WILLS. 199 the testator holds the pen while the other person really writes the name or makes the mark it is a signature by the testator.^ ^^ Even where the testator is so weak as to be unable to write his name and another person guides his hand so as to form the letters of testator's name it is held to be a valid signature by testator if he touches the pen while his name is thus written.^ ^^ Thus in New Jersey, where another can not sign for testator, testator was so weak that he was unable to write his name un- aided, and the evidence left it in doubt whether the person who steadied his hand did not guide his fingers so as to write his name. The court held that in any event the signature was valid.^^'^ But where testatrix put her hand upon the hand of another person who was writing her name it was held to be a signature by such other person, and not by testatrix.^ ^^ And where testator was unconscious and his mark was made by put- ting a pen into his hand and guiding so as to make a mark, it was held not to be a valid execution.^ ^^ §181. Place of signature upon will. — Early statutes. The original Wills Act merely required that a will be signed. The wording of this statute was in this respect like that of the Statute of Frauds, and a similar construction followed. It was held that the signature need not be at the end of the will, but that it might appear in any part thereof.^^*^ All that was nec- Pipes. 32 Miss. 451 ; Vandruff v. 128 Waite v. Frisbie, 45 Minn. Rinehart, 29 Pa. St. 232; McMech- 361; 48 Minn. 420. en V. McMeehen, 17 W. Va. 683; 123 Dunlop v, Dunlop, 10 Watts Cozzen's Will, 61 Pa. St. 196; Stev- 153. ens V. Van Cleve. 4 Wash. C. C. 262. iso Armstrong's Exr. v. Arm- 125 Campbell v. McGuiorgan, N. J. strong, 29 Ala. 538 ; Brown's Will, Prer. (1896), 34 Atl. 383. 1 B. Mon. (Ky.) 56; Miles' Will, 120 Fritz V. Turner, 46 N. J. Eq. 4 Dana (Ky.) 1; Hall v. Hall, 17 515; Sheehan v. Kearney (Miss.) Pick. (Mass.) 373; Catlett v. Cat- 35 L. R. A. 102; Vandruifr v. Rine- lett, 55 Mo. 330; Kirkpatrick's hart, 29 Pa. St. 2.32; 'irezevant v. Will. 22 X. J. Eq. 463: Allen v. Rains, 85 Tex. 329. Everett. 12 B. Mon. 371 ; Lawson v. 127 Fritz V. Turner, 46 N. J. Eq. Dawson's Estate (21 Tex. Civ. App. 515. 361), 53 S. W. 64. 200 LAW OF WILLS. essary was that the name be written by the testator,^ ^^ or by some person in his presence and by his direction,^ ^^ with the intention of finally executing the instrument.^ ^^ It was even held before the great strictness exacted by mod- em statutes that a signature written by another out of testator's presence and not at the end of the will might be adopted by him as his signature. The best method of indicating such intention was by express language in the will. The formal- ities apparent on the face of the will might also indicate such intention, without the use of express language. Some courts held that extrinsic evidence could not be received to show that the testator's name in the body of the will was intended as a signature.^ ''^ Many of these decisions depend on specific stat- utory provisions. Other courts receive such evidence and allow the surrounding facts and circumstances, including the declara- tions of testator/ ^^ to be received to determine whether the name of testator was intended as a signature or not. Under a statute which merely required a will to be signed "in such a manner as to make it manifest that the name is in- tended as his signature," it was held that where testator's name appeared in his own writing at the beginning of the will, and also on the envelope in which the will was contained, but not at the end of the will, it was not a sufficient signature w^ithin the statute; ^^*^ and where a will contained testator's name in his own handwriting in the body of the will, but concluded with an unsigned testimonium clause, ''in witness whereof I have here- unto set my hand," it was held that testator had intended that 131 Adams v. Field, 21 Vt. 256; wheret not signed at the end, the Morison v Tumour, 18 Ves. 175. facts given did not show her in- 132 Armstrong's Exr. v. Arm- tention that the name as written strong. 29 Ala. 538. should be a signature.) 133 In matter of Booth's Will, 127 i34 Jolly's Will, 5 N. J, Eq. 456 ; N. Y. 109. (In this case testatrix's Warwick v. Warwick, 86 Va. 596. name was written only at the begin- iss Armstrong's Exr. v. Arm- ning of the will. She said to the strong, 29 Ala. 538 ; Adams v. Field, witnesses: "This is my will; take 21 Vt. 256. it and sign it." It was held that ise Warwick v. Warwick, 86 Va. if a will controlled as this was. by 596. New Jersey law, could be valid 901 LAW OF WILLS. ^"-^ his name in the body of the will was not to be the final signa- ture thereto.^ ^^ , , . r ^i • So where testatrix's name' appeared in the body of the in- strument only, but not at the end, it was not a valid signature where there was no evidence except a declaration of testatrix that she had written the will.^^* §182. Place of signature upon will.— Modern statutes. In order to remove the uncertainty which arises from the insertion of testator's signature in the body of the will, many jurisdictions have provided by statute that a will, to be valid, must be signed by testator at the end thereof.^ ^^ Where such a statute is in force any question about the effect of testator's signature in the body of the will is summarily settled, but important questions are raised m its place m de- termining what is the end of the will. §183. Signature with reference to attestation clause. Testator's signature is often followed by an attestation clause. This has been held to be a signature at the end of the wiU.^^*^ The sioTiature of testator is sometimes written after the at- testation clause. This has also been held to be a good signature at the end of the will.^^^ And Avhere testator wrote his name after the attestation clause on the right, and the witnesses wrote their names opposite on the left, it was said that an ob- jection to such a mode of signing was frivolous.^^^ So, where i37Catlett V. Catlett, 55 Mo. 330. i" Goods of Williams, 35 L. J. i38Schermerhorn v. Merritt ?• 2 ; L- R- \P; ^ ; 11/^" i^^f, (Mich.) (1900), 82 N. W. 513. 982; 13 L. T. 304; U W- R. Ill, 130 Jones V. Jones, 3 Met. (Ky.) In re Dayger, HO N. Y. 666. 266; Glanccv v. Glanccy, 17 O. S. "^ Younger v.Dufte, 94 N. Y. 134: Baker v. Baker, 51 O. S. 217. 535; Cohen's WUl 1 Tuck 286 Under such statutes where testator "^ Hallowell v. Ha lowell 88 Ind. signs in the middle of the will 253 ; So Goods of Puddephatt, 39 L. by mark, the will is invalid. J- ?• 84; L. R. 2 F. Mi. Margary v. Robinson, 56 L. J. P. 42; 12 P. D. 8; 57 L. T. 281; 35 W. R. 350: 51 J. P- 407. 202 T-AW OF WILLS. testator ^\Tote his name in a blank in the attestation clause it was held to be a signature at the end of the will.^^^ It may be laid down as a general rule that as an attestation clause is not strictly a part of the will, but rather a certificate thereto, and yet a certificate made necessary by statute, the signature of testator may either precede or follow it and still be at the "end" of the will. §184. Effect of blanks in body of the will. In some cases blanks occur in the body of the will, making interlineations possible. A will signed after the last clause of such a will is held to be signed at the end thereof.^ "^^ Thus, where each clause of the will was written on a sep- arate sheet of paper, with a blank both above it and below it, it was held valid.^^^ §185. Effect of blank immediately before signature. In other cases the testator signs his name after the body of the will, but leaves a blank of some considerable extent between the body of the will and his signature. The courts are at vari- ance as to whether such a will is signed at the end thereof or not. Some courts look upon the statute requiring the signature to be at the end, as intended only to do away with the difiiculty of determining whether a will was signed or not. Under such a theory of the existence of the statute they hold that a sig- nature after the body of the will is at the end, even though a blank space intervenes.-^ "^^ 143 Goods of Walker, 2 Sw. & Tr. T. 434; 16 W. R. 64; In re Acker, 354; 31 L. J. P. 62 ; 8 Jur. (N. S.) 5 Dem. 19. 314; 5 L. T. 766; Goods of Mann, n* Barnewall v. Murrell, 108 Ala. 28 L. J. P. 19; Goods of Pearn, 45 366. L. J. P. 31 ; 1 P. D. 70 ; 33 L. T. "s Barnewall v. Murrell, 108 Ala. 705; 24 W. R. 143; 28 L. J. P. 19; 366. Goods of Cassmore, 38 L. J. P. 54 ; i*" So it was held where the will L. R. 1 P. 653; 20 L. T. 497; 17 ended on one page and the signa- W. R. 627 ; Goods of Harris, 23 ture of testator was placed on thf W. R. 734 ; Goods of Huckvale, 36 next page, leaving a blank of fron L. J. P. 84; L. R. 1 P. 375; 16 L. a few lines to half a page interven- LAW OF WILLS. *03 Other courts hold that an additional reason for requiring the signature to be at the end of the will was to prevent fraud- ulent additions to the will. Such courts, therefore, hold that a signature separated from the body of the will by a blank space is not a signature at the end within the meaning of the statute.^ "^^ §186. Additions after signature. Wills are made in which the testator's signature is followed by additional writing. Is such a will signed at the end ? In discussing this question we must notice : 1. If such writing was added after the execution and at- testation were completed it is in legal effect a codicil. ^ If not duly signed and executed itself, such codicil is invalid; but such invalidity can not affect the validity of a will previously signed and executed.^ ^^ 2. The addition to the will may have been written before execution and may be so referred to in the body of the will^ as to be incorporated by reference therein. What is incorporation by reference has already been discussed. It is sufficient to state here that where the addition below the signature has been incorported in the will by reference its presence does not in- validate the will, and the will is considered in law as being signed at the end thereof.^ ^^ ing. Goods of Archer, 40 L. J. P. So where the will ended on the 80- L. R. 2 P. 252; 25 L. T. 274; first page and was signed on the 19 W R 785; Smee v. Bryer, 6 fourth. Goods of Fuller, 62 L. J. Moore P C. 404; 13 Jur. 289; P. 40; (1892) P. 377; 1 R. 453; Hunt 'v. Hunt, 33 L. J. P. 135; L. 67 L. T. 501; 56 J. P. 713; Goods R. 1 P. 209; 14 L. T. 859: Derinzy V. of Rice, Ir. R Eq. 176. Turner 1 Tr. Ch. R. 341 ; Gilman'3 i*^ Soward v. Soward, 1 Duv. Will, 38 Barb. 364; Goods of Hors- (Ky.) 126. (In this case two ford,' 44 L. J. P. 9 ; L. R. 3 P. 211 ; blank pages intervened between the 31 L. T. 553; 23 W. R. 211. signature of testator and the end So, where the will was written on of the will.) the first pa-e, and the signature "^ /n re Jacobson, 6 Dem. 298; was on the third page. Goods of Heise v. Heise, 31 Pa. St 246. Williams, 35 L. J. P. 2 ; L. R. 1 P. "^ Baker's Appeal, 107 Pa. bt. 5; 11 Jur. (N. S.) 982; 13 L. T. 381. 304; 14 W. R. HI. 204 LAW OF WILLS. Leaving out of consideration, therefore, wills in which ad- ditions are made in the nature of codicils, after execution, and wills in which the additions made below the signature are in- corporated in the will by reference, and discussing the effect of additions made below the signature before the execution of the will and not incorporated therein by reference, we must first notice that such additions are divided into two classes as to their effect on the validity of the will. 1. Such additions as invalidate the will. 2. Such additions as do not invalidate the will, but are merely void themselves. The effect of the addition depends upon its nature. 1. If the addition is a dispositve clause, i. e., one which adds to or revokes previous bequests, such clause invalidates the whole will.^^" Thus, where the testator signed his will, then said that he would finish it, and added a bequest, after which the witnesses signed their names, it was held that testator's signature was not at the end, and the whole will was invalidated; ^^^ and the ad- dition below the signature of reasons for making the will has been held to invalidate will where it contained a repetition of the bequest.-^ ^^ A will signed on the first page and written on the second and third pages was held valid upon the ingenious theory that the will could be regarded as beginning after testator's signa- ture, and being carried over to the first page and thence down to the execution; ^^^ and that the sense of the will and not the order determines what the end is.^^^ But in a recent ISTew York case the will was written upon a 150 Andrew's Will, 162 N. Y. 1 , precedent devise which might have In re Hewitt's Will, 91 K Y. 261 ; influenced the construction of it, Hays V. Harden, 6 Pa. St. 409. and also an additional substantive 151 Glancy v. Glancy, 17 O. S. devise. 134, 153 Goods of Wotton, 43 L. J. P. 152 Hays V, Harden, 6 Pa. St. 14; L. R. 3 P. 159; 30 L. T. 75; 409. In discussing this case some 22 W. R. 352. years after, in Wikoff's Appeal, i54 Goods of Kimpton, 3 Sw. & 15 Pa. St. 281, the court said that Tr. 427; 33 L. J, P. 153; 10 L. T, the addition contained reasons for a 137. LAW OF WILLS. 205 blank printed for the purpose, consisting of two sheets con- nected at the left margin like the leaves of a book. The second page was numbered at the top "3rd page/' and upon it were the signatures of testator and the subscribing witnesses. The third page was numbered at the top "2nd page," and contained certain dispositive provisions, no sentence being carried over from the second to the third page. It was held that the will was not subscribed at the end, and was not entitled to be ad- mitted to probate.^^^ The clause added below the signature may appoint an ex- ecutor. In such case the authorities are at variance as to its effect upon the will. Some courts hold that the addition of such a clause below the signature invalidates the whole will.^^^ So, where testator signs in the middle of the clause appointing an executor, his signature is not at the end of the will.^^'^ Thus, where a will concluded, "I make, constitute and ap- point Edward McCarthy to be executor [J. Kelly] of this my last will and testament, hereby revoking all former wills by me made" it was held that the signature "J. Kelly" was not at the end within the meaning of the statute.-^ ^^ So where, after signing his name, testator added a clause directing the executor to sell certain realty and devote the proceeds to paying the debts and legacies, and then the wit- nesses signed, it was held that the will was invalid as not signed at the end.^^^ Other authorities hold that, while such clause is void, the will above the signature is valid. ^^'^ As the appointment of an executor is testamentary in its na- ture, the former opinion seems the better on principle. A signature written in the final clause of the will has been 155 Andrew's Will, 162 N. Y. 1. glish eases, In re Woodley, 3 S. & T. 156 In re Jacobson, 6 Dem. 298 ; 429 ; In re Walker, 2 S. & T. 354 ; In re Mies, 13 St. Rep. (K Y.) In re Cassmore, 1 L. R. Pro. & Div. 756; Wineland's Appeal, 118 Pa. p. 653, as being under a more lib- St. 37. eral statute. 157 Sisters of Charity v. Kelly, 67 i59 /n re Blair, 152 N. Y. 645; 84 N. Y. 409; Hewitt's Will, 91 N. Y. Hun, 581. 261; O'Neill's Will, 91 N. Y. 516. i6o MeCullough's Estate, Myr. 158 Sisters of Charity v. Kelly, 67 Prob. (Cal.) 76. N. Y. 409, distinguishing the En- 206 LAW OF WILLS. held to be at the end. Thus, a signature partly across the last line but one, all but one letter being above the last line, was held to be at the end.^^^ Where dispositive clauses follow testator's signature the usual rule is that the whole will is invalid.^ *^^ But in a recent English case the attestation clause was placed at the bottom of the first page, and the last sentence of the will was an unfinished direction for settling his estate. The words "all cheques to be paid away shall be" preceded the attestation clause and signature; on the second page fol- lowed "signed by my daughter Emma and all accounts shall be settled by her." This will was held valid as to the part pre- ceding the signature, but invalid as to the part on the second page.-^^^ If the clause added below the signature neither affects the disposition of the estate nor appoints executor or guardian, the authorities are unanimous that such clause does not invalidate the will, and that within the meaning of the statute the signa- ture is at the end of the will.^*'^ Thus, where testator wrote after his signature "My sister in law (the executrix) is not required to give bond when pro- bated," such addition did not invalidate the will;^^^ and the addition of some figures below the signature, having no bearing upon the will, does not invalidate it; ^^^ or an unsigned map referred to in the will; ^^"^ or a memorandum, "This will was commenced in the year of our Lord 1843 and added to as occasion required." ^^^ A reference to a schedule which testator failed to annex to the will does not invalidate the will where testator signed at the end of the will as writtien. 161 Goods of Woodley, 3 Sw. & Tr. Wikoff's Appeal, 15 Pa. St. 281 ; 429; 33 L. J. P. 154. Tonnele v. Hall, 4 N. Y. 140; Con- 162 See preceding cases cited in boy v. Jennings, 1 S. C, (N. Y.) this section. 622; Baker v. Baker, 51 0. S. 217. 163 /'rt re Anstee (1893), P. 283; les Baker v. Baker, 51 O. S. 217. Goods of Arthur, L. R. 2 P. 273; ise Fouche's Estate, 147 Pa. St. 25 L. T. 274; 19 W. R. 1016; Sweet- 395; or the date. Flood v.Pragoflf, 79 land V. Sweetland, 4 Sw. & Tr. 6; 34 Ky. 607. L. J. P. 42; 11 Jur. (N. S.), 182; i67 Tonnele v. Hall, 4 N. Y. 140. 11 L. T. 749; 13 W. R. 504. les Wikoff's Appeal, 15 Pa. St. 164 Flood V. Pragofi", 79 Ky. 607; 281. LAW OF WILLS. ^^* §187. Signature opposite the end or foot of the will. Under some statutes, of which the modem English statute is a type, testator's signature is good if placed opposite the end or foot of the dispositive clauses of the will. Where tes- tator signed his name on the left side of the will, and con- tinued the will in short lines on the right side to a point slightly below testator's signature, the will was held to be properly signed.^ '^^ A signature on the lower edge of the page on which the dis- positive part of the will was written,^^^ or along the margin of the will opposite the dispositive part of the will is a good sig- nature at the end in the meaning of these statutes.^^^ Where the will is bitten on the first and third pages of the form, and testator's signature was written on the second page opposite the end of the dispositive part of the will, it is held valid under these statutes.^ ^^ Where the will covered the first three pages of a form, and was signed at the end of the first page, this was not at the end, or opposite the end, of the will.^^^ Pa^t rV— Attestation and Subscription. §188. Attestation and subscription entirely statutory. Unless the statute requires it, it is not necessary that a will be attested or subscribed by witnesses.^^^ Even where the statutory requirement is that the will be "proved by the oaths 169 Goods of Ainsworth, L. R. 2 195; 13 W. R. 996; Goods of P 1 '>l • 23 L T 3''4 Coombs, 36 L. J. P. 25. "iTO Goods of Jones', 4 Sw. & Tr. 1 ; "^ Eoyle v. Harris ( 1895) P. 163. 34 L J P 41; 11 Jur. (N. S.) i74 fi^ porie Henry, 24 Ala. 638 ; 118- 13 L T '?10- 13 W. R. 414. Mealing v. Pace, 14 Ga. 596; Leath- 171 Goods of Wright, 4 Sw. & ers v. Greenacre, 53 Me. 561 ; Mars- Tr 35- 34 L J P. 104; 13 L. T. ton v. Marston, 17 N. H. 503; Kis- 195; Goods of Collins, 3 L. R. Ir. eeker's Estate, 190 Pa. f- .476; 42 241; Goods of Stoakes, 31 L. T. Atl. 886; Orgain v. Irvine 100 552;23W.R.62. Tenn. 193; Hays V. Ernest, 32 172 Goods of Powell, 4 Sw. & Fla. 18. Tr. 34; 34 L. J. P. 107 ; 13 L. T. 208 I-^W OF WILLS. or affirmations of two or more competent witnesses," this does not require attestation or subscription, but merely that the signature of testator be proved.^^^ But in England and in all American states, with the exception of Pennsylvania, the pro- visions of the statute require that the ordinary will be attested and subscribed by witnesses-^^*^ There are special exceptions to this general rule, such as holographic wills, nuncupative wills and the like, which are discussed elsewhere.^ '^^ In most states the same rules as to attestation and subscrip- tion apply to testaments of personalty as to wills of realty. In some states, however, fewer witnesses are. necessary in cases of testaments than in those of wills,^^^ and in others no wit- nesses at all are necessary for testaments.^ ^^ §189. Distinction between attestation and subscription. The language of the statutes indicates a distinction between attestation and subscription, as the will is required to be at- tested and subscribed. Attestation is said by some courts to be the act of perceiving the performance of the various acts necessary to the legal execution of a will.^^'^ Subscription is the act of the attesting witness in signing his name upon the will to identify the instrument thus attested.^ ^^ I'his distinction is repudiated by some well-considered mod- ern cases as being purely verbal, and "attestation" and "sub- scription" are there said to be practically synonymous terms in- 175 Frew V. Clarke, 80 Pa. St. itt See Chap. XIII. 170; Eohrer v. Stehman, 1 Watts "s Hays v. Ernest, 32 Fla. 18. (Pa.) 442 ; Rossetter V. Simmons, 6 "9 Orgain v. Irvine, 100 Tenn. S. & R. 452; In re Kisecker's Es- 193; Franklin v. Franklin, 90 Tenn. tate, 190 Pa. St. 476. But in Iowa 44. under a statute requiring a will to iso Swift v. Wiley, 1 B. Mon. be "witnessed by two competent (Ky.) 117, quoted and followed in witnesses," it was held that the Reed v. Watson, 27 Ind. 448. witnesses must subscribe their isi See the cases cited in the pre- names. Boyens' Will, 23 lo. 354. ceding note, and also Walker's Es- iTGiJ^ 'parte Winslow, 14 Mass. tate, 110 Cal. 387. 421 ; Bartee v. Thompson, 8 Bax. 508 ; and see cases cited in follow- ing sections. LAW OF WILLS. 209 volving the same elements.^^^ Under this view no change of intention on the part of the legislature can be presumed,^ be- cause it uses "attest" in one connection and "subscribe m another. §190. Number of subscribing witnesses. The number of subscribing witnesses necessary to the validity of the will is determined by local statute. Two or three is the number usually required. Whatever the number required by statute, a will attested and subscribed by any less number is invalid.^ ^^ So, where a will was written in duplicate, and by mistake testator signed one and the subscribing witnesses the other, it was held that the will was not valid.^^^ Where two witnesses subscribed the will, one of whom was incompetent, it was held fin, 69 Wis. 529), it Is not clear what, if anything, attestation is in- tended to add to the mere fact of subscription." Skinner v. Ameri- can Bible Society, 92 Wis. 209. The Illinois courts repudiate the idea of a distinction between at- testation and subscription. "This act of attestation consists in the subscription of the names of the witnesses to the attestation clause as a declaration that the signature was made or acknowledged in their presence." Drury v. Connell, 177 111. 43, quoted with approval in Sloan V. Sloan, 184 111. 579. 183 Garcia y Perea v. Barlea, 5 N. M. 458; 23 Pac. 766; Hays v. Ernest, 32 Fla. 18 : Cureton v. Tay- lor, 89 Ga. 490; Gay v. Sanders, 101 Ga. 601; Peake v. Jenkins, 80 Va. 293; Poore v. Poore, 55 Kan. 687; College v. McKinstry, 75 Md. 188 ; Simmons v. Leonard, 91 Tenn. 183. 184 Goods of Hatton, 50 L. J. P. 78; 6 P. D. 204; 30 W. R. 62; 46 J. P. 40. 182 "It would be difficult, no doubt to satisfactorily define that element in the attestation of a will which is not also present in the mere sub- scription to a will. No physical act is required in the one which is not also required in the other, and it is not clear what men- tal act or fact appropriate to the one. is absent from the other, and the definitions of the most recent lexicographers do not make it quite perspicuous. The Century Diction- ary defines an attesting witness to be 'a person who signs his name to an instrument to prove it and for the purpose of identifying the maker of makers.' The Standard Diction- ary defines attestation to be 'the sub- scription by a person of his name to a written instrument to signify that the same was executed in his presence, or that it is correct.' Since it is well settled in this state that it is not necessary to the validity of a will that the witnesses at the time when they attest it, shall know the nature of the instrument that they are attesting (Allen v. Grif- 210 LAW OF WILLS. that the will was invalid, even if other competent witnesses in excess of the requisite number witnessed the facts of execution but did not subscribe their names,^^^ On the other hand, if the number required by law have at- tested and subscribed the will in due form, the will is not in- validated by the addition of other witnesses who are incom- petent, or do not attest or subscribe in the manner required by law; ^^® nor even by the addition of the name of one who was not requested by testatrix to sign as a witness.^ ^^ §191. What determines competency of subscribing witnesses. The codes often provide that the attesting witnesses must be "credible" or "competent." These two words are construed to have the same meaning,^ ^^ and that is that the witnesses must be qualified to testify, under the rules of evidence in force at the date of the execution of the will, concerning the proof of execution in probate tribunals.^ ^^ In these statutes, therefore, the word "credible" is not used with its technical meaning, which is simply worthy of belief. A competent witness in the technical sense is one whose evi- 185 Sloan V. Sloan, 184 111. 579. 70 Me. 545 ; Estep v. Morris, 38 iseConoIy v. Gayle, 61 Ala. 116; Md. 417; Eustis v. Parker, 1 N. H. Ackless V. Seekright, 1 111. 76; Car- 273; Lord v. Lord, 58 N. H. 7; roll V. Norton, 3 Bradf. (N. Y.) Welch v. Adams, 63 N. H. 344; 291; Boone v. Lewis, 103 N. Car. Hodgman v. Kittredge, 67 N. H. 40, 254; Comb's Appeal, 105 Pa. St. 187 Scattergood v. Kirk, 192 Pa. 158 ; Workman v. Dominiek, 3 St. 263. Strobh. (S. Car.) 589; Gamble v. 188 Amory v. Fellowes, 5 Mass. Butchee, 87 Tex. 643. 219, is one of the leading cases on Of English authority, Bettison v. this point decided in this country. Bromley, 12 East, 249, supports the It has been followed and approved text; while Windham v. Chetwynd, in many Massachusetts cases : 1 Burr. 414, holds that 'credible' can Sears v. Dillingham, 12 Mass. 358: not mean competent. Hawes v. Humphrey, 9 Pick. 350; isa In re Noble, 124 111. 266; Haven v. Hilliard, 23 Pick. 10, and Harp v. Parr, 168 111. 459; Fisher in other jurisdictions. Hall v. Hall, v. Spence, 1,50 111. 253; In re No- 18 Ga. 40; In re Noble, 124 111. 266; ble, 124 111. 266; Carlton v. Carl- Fisher v. Spence, 150 111. 253; Harp ton, 40 N. H. 14; Smith v. Jones, V. Parr, 168 111. 459; Jones v. Larra- 68 Vt. 132 (and see cases cited in bee, 47 Me. 474; Smalley v. Smalley, preceding note). 911 LAW OF WILLS. ^-*-^ dence is admissible. A competent witness may not be credible ; a credible witness may not be competent, using the words m their technical sense. But such absurd results would follow from construing "credible" in the Statute of Frauds and the American statutes based thereon, as meaning "worthy of belief that it has been generally construed as "competent." The original test of the competency of an attesting witness was his competency to testify upon the facts of execution in the conmion law courts. This was because subscribing wit- nesses were required only for wills passing real property, and such wills were not offered for probate, but their validity was tested in common law courts, and the competency of ^the wit- nesses was therefore determined by common law rules.^^^ At common law, persons having a direct pecuniary interest in the outcome of the litigation were disqualified on account of interest, as was a husband or wife of such person. In certain cases convicted criminals were incompetent. Persons under certain ages and persons who were non compos mentis were incompetent as being unable to understand what had happened, or to relate it accurately.^ ^^ The tendency of modern legislation has been to abolish the disqualifications growing out of interest or conviction of crime, and to make such witness competent, the matter which formerly made him incompetent now going solely to his credibility. An interesting question is presented in determining how far a statutory change in the rules of evidence in general affecte the prior rules of the competency of subscribing witnesses to wills. It is of course entirely a matter of statutory construc- tion. In some jurisdictions the statute applying to evidence m general is expressly made to include probate tribunals, and therebv to affect the competency of witnesses to wills.^^^ i^ other jurisdictions statutory changes have been made in the rules of evidence in the common law courts so as not to apply 190 Hitchcock V. Shaw, 160 Mass. i^^ Lippincott v. Wikoff, 54 N. J. 140; Vrooman v. Powers, 47 O. S. Eq. 107. (The statute here con- 191 See Chap. XIX, Evidence in strned applied in terms to any pro- Probate and Contest, Part I, Sees. ceeding in any court" and was held 3gQ.3(;3 to apply to probate tribunals.) 191 See Sec. 360-363. 212 LAW OF WILLS. to probate tribunals ; and thus a witness may be competent to testify as to facts in a common law court who is incompetent to act as attesting witness to a will.^^^ Thus, under a Maine statute, which requires the witnesses to be "disinterested," it is said that this means "competent" and is used to prevent general changes in the law of evidence from affecting the law of wills.^^^ §192. Time at which competency must exist. The attesting witness must be competent at the time that he attests and subscribes his name. If he is competent then and afterwards becomes incompetent, the will is not thereby in- validated.^^^ If, on the other hand, he is then incompetent, and afterwards becomes competent, the weight of authority is that he can not be counted among the attesting witnesses of the will.^^^ Some jurisdictions, however, hold that a witness who, by reason of being a beneficiary under the will, is incompetent at the time of its execution may, by releasing his interest there- under, become a competent witness at the probate of the will.^^'^ i»3 Sparliawk v. Sparhawk, 10 riman, 50 X. H. 25 ; Morrill v. Mor- All. (Mass.) 155; Sullivan v. Sul- rill, 53 Vt. 74. livan, 106 Mass. 474; Hitchcock v. i96 Fisher v. Spence, 150 111. 253; Shaw, 160 Mass. 140. Morgan v. Ingram, 11 Ired. (N. C.) 194 Jones V. Larrabee, 47 Me. 308 ; Warren v. Baxter, 48 Me. 193; 474; Warren v. Baxter, 48 Me. Patten v. Tallman, 27 Me 17 ; Spar- 103. hawk v. Sparhawk, 10 Allen (Mass.) 193 Holdfast V. Downing, 2 Strange 157 ; In re Holt's Will, 56 Minn. 1253; Thorpe v. Bestwick, 50 L. 33; Hine v. McConnel,, 2 Jones' , J. Q. B. 320; 6 Q. B. D. 311; 44 L. Law (N. C.) 455; Carlton v. Carl- T. 180; Slingloff v. Bruner, 174 111. ton, 40 N. H. 14; Vrooman v. Pow- 501 ; Gill's Will, 2 Dana (Ky.) 447; ers, 47 O. S. 191 ; Workman v. Domi- Patten V. Tallman, 27 Me. 17 ; War- nick, 3 Strobh. (S. Car.), 589; Ten V. Baxter, 48 Me. 193; Jenkins Smith v. Jones, 68 Vt. 132. V. Dawes. 115 Mass. 599; Sullivan i97 Lowe v. Joliflfe, 1 W. Bla. 365; V. Sullivan, 106 Mass. 474 ; Pease V. Goodtitle v. Welford, Dougl. 139; Allis, 110 Mass. 157; Sullivan v. or by statute, Miltenberger v. Mil- Sullivan, 114 Mich. 189; Holt's tenberger, 78 Mo. 27; Grimm V. Will, 50 Minn. 33; Carlton v. Carl- Tittman, 113 Mo. 56. ton, 40 N. H. 14; Stewart v. Har- LAW OF WILLS. 213 §193. Who are competent attesting witnesses. The general rule is that any person of sound mind, and old enough to receive a just impression of the facts of execution and to relate them ti-uly, may act as an attesting witness.^ ^^ Thus, a youth of twenty may act as an attesting witness, mi- nority not being a disqualification.^^^ This general rule is so well settled as to be rarely questioned. By far the greatest amount of litigation on this subject arises over the ahnost uniform exception to this general rule. This exception is that no person having an immediate beneficial in- terest under the will can act as an attesting witness thereto.^"*^ This is the usual form of stating the disqualification. It is, of course, physically possible for such persons to write their names as subscribing witnesses to the will in which they are beneficially interested. The meaning of the rule is, of course, that even though they act as attesting witnesses, they can not be counted as such witnesses to make up the number required by statute; and if the number is not made up without them the will is invalid. In Tennessee, however, while a beneficiary can not be a sub- scribing witness to a will, he may prove an unattested testa- ment of personalty.2*^i So, where a testament of personalty is good without subscribing witnesses, a legatee to whom no realty is devised may act as attesting witness to a will disposing of both realty and personalty.^®^ §194. Who are beneficiaries. — Nature of interest. The beneficiaries mider a will, within the meaning of this rule, are those who have a direct and immediate beneficial in- i9« See discussion of subject v. Stagner, 55 Tex. 393. These cases mostly obiter in Carlton v. Carlton, are only a few out of the many that 40 N. H. 14. might be cited. The cases on this 190 Jones V. Tebbetts, 57 Me. 574. subject in the following notes all 200 Clark v. Hoskins,6 Conn. 106; sustain the proposition in the text. Frink v. Pond, 46 N. H. 125; Lord 201 Franklin v. Franklin, 90 Tenn. V. Lord, 58 N. H. 7 : Allison v. Al- 44. lison, 4 Hawks (N. C.) 141; Nixon 202 Walker v. Skeene, 3 Head. V. Armstrong, 38 Tex. 296; Fowler (Tenn.) 1. 214 LAW OF WILLS. terest therein. This interest must be a real and not an apparent one in order to incapacitate the witness. Thus, an heir could act as attesting witness to a will which gave him a less share of the estate than he would have taken had the ancestor died intestate — a will, in other words, which wholly or partially disinherited the witness."*^^ The interest must further be beneficial. Thus, a trustee can act as an attesting witness to a will whereby a devise is made to him in trust for others.^*'^ But where trustee was entitled to commissions it was held that these commissions disqualified him as a witness f^^ and a trustee is competent even if the real beneficiaries are his children.^*^^ So, a gift to a church "to be disposed of" as A should wish was held not to be a beneficial gift to A.^*''' A beneficial interest further might be so remote ihat even though some indirect benefit might accrue to the witness, it was not recognized by the common law as a disqualifying interest. The interest must be one which under the rules of evidence in force in common law jurisdictions was recognized as inmie- diate. Thus, an inhabitant of a town could act as a subscribing witness to a will by which a devise was given to such town,^°^ and a member of a religious corporation could act as attesting witness to a will by which a devise was given to such cor- poration,""^ as could also an employee of such corporation.^^ *^ 203 Smalley v. Smalley, 70 Me. 207 Greswell v. Creswell, 37 L. 545; Sparhawk v. Sparhawk, 10 J. Ch. 521; L. R. 6 Eq. 69; 18 L. Allen (Mass) 157; Grimm v. Titt- T. 392; 16 W. R. 699. (Hence A's man, 113 Mo. 56; Moore v. McWil- wife could act as a subscribing wit- liaras, 3 Rich. Eq. (S. Car.) 10; ness. Hoppe's Will, 102 Wis. 54 ; 78 N. 208 Cornwell v. Isham, 1 Day W. 183; Clark v. Clark, 54 Vt. (Conn.) 35; Jones v. Habersham, 489; Maxwell v. Hill, 89 Tenn. 63 Ga. 146; Marston v. Judge of 594. Probate, ? 9 Me. 25 ; Hawes v. Hum- The husband of a disinherited phrey, 9 Pick. (Mass.) 3.50; Hitch- ■daughter is therefore competent. cock v. Shaw, 160 Mass. 140; Eus- .SlingloflF V. Bruner, 174 111. 561. tis v. Parker, 1 N. H. 273. 204 Loring v. Park, 7 Gray 209 Jones v. Habersham, 63 Ga. (Mass.) 42; Marston v. Judge of 146; Warren v. Baxter, 48 Me. 193; Probate, 79 Me. 25. Haven v. Hilliard, 23 Pick. (Mass.) 205 Allison V. Allison, 4 Hawks 10; Will's Estate, 67 Minn. 335. (N. Car.) 141. 210 Comb's Appeal, 105 Pa. St. 206 Key V. Weatherlee, 43 S. Car. 155. 414. 215 LAW OF WILLS. So a stockholder in a corporation owning a hall is a com- petent witness to a will in which a legacy was given to secure the use of such hall for objects of public interest.^^^ This interest is not necessarily an absolute one, however. Thus, where a devise was made to A if he survived testator and if he died before testator, then to B, it was held that B had an immediate beneficial interest under the will, and could not, therefore, be counted among the subscribing witnesses. By statutes, in some jurisdictions, however, a remainder-man under . the will can act as attesting witness.^^^ §195. Effect of release. The attempt is often made to restore the competency of an attesting witness who is incompetent because a beneficiary, by having him release all interest under the will. The weight of authority is, as before said, that the witness must be competent at the time of attestation. From this view it follows that such attempt to restore competency to the witness by a release executed after the attestation, accomplishes nothing, and the beneficiary can not be counted among the subscribing witnesses. Some jurisdictions, however, take the view that if the witness is competent, on the ground of interest, either at the attestation of the will or at the time that it is produced for pr(> bate he can be counted among the attesting witnesses; and accordinglv such jurisdictions hold that a beneficiary, on re- leasing his interest, becomes, as far as interest is concerned, a competent witness.-^* §196. Effect of modem statutes. The competency of a beneficiary as an attesting witness is generally modified by statute. Many jurisdictions have adopted statutes 'substantially to the effect that if a beneficiary acts as a subscribing witness to a will, and the will can not be proved 2iiMarston v. Judge of Probate, Garland v. Crow, 2 Bail. (S. Car.) 79 Me. 25. 24. , , , ^ ^ . , ^iff 2X2 Trinitarian, etc., Society. Ap- -* So by statute. Gnmm v. Titt- ellant 91 Me. 416. man, 113 Mo. 56, citing and follow- J r\ t"o Alo 4J.8 • infT In re Wilson, 103 N. Y. 374. 2i3Kumpe V. Coons, 63 Ala. 44» , mg iri ^e wi , 21d I^AW OF WILLS. without his testimony as a subscribing witness, the devise or be(^uest to him shall be void. A provision is generally added that he shall take such share as he would have received if the testator had died intestate, so much as does not exceed the inter- est given him by the will.^^^ Where the will can be proved without a certain subscribing witness, a legacy to him is not aifected by this statute.* Thus, where a legacy was left to a subscribing witness by will, and the will was afterwards repub- lished by a codicil to which legatee was not a witness, it was held that his legacy was not affected by the fact that he acted as a subscribing witness to the will. Nor was his right to take aifected by the fact that he subsequently acted as witness to another codicil. ^ ^ ^ Thus, where a legacy was left to a subscribing witness by w^ill, and the will was afterwards republished by a codicil to which legatee was not a witness, it was held that his legacy was not affected by the fact that he acted as a subscribing witness to the will, xior was his right to take affected b}' the fact that he subsequently acted as witness to another codicil.^^^ The effect of such statutory provisions is to make such attest- ing witness competent by preventing him from taking any in- terest under the will, thus recognizing that the witness must be competent at the time of the attestation. In other jurisdictions the statute gives to the beneficiary witness the option of renouncing his interest or of invalidating the will.217 These statutes are never to be extended beyond their express terms. Thus, a statute of this sort referring to written wills has no application to witnesses to nuncupative wills.^-^^ §197. Husband or wife of beneficiary Common law rule. Under the rules of the common law a husband or wife could not testify when the other would be excluded from testifying by reason of interest. This being the law except where mod- 215 /n re Trotter (1899), 1 Ch. * Davis v. Davis, 43 W. Va. 300, 764; Denne v. Wood, 4 L. J. Ch. 57; 27 S. E. 323. Perkins v. Windham, 4 Ala. 634; 2i6/n re Trotter (1899) 1 Ch. Kumpe V. Coons, 63 Ala. 448 ; Clark 764 ; In re Owen, 56 N. Y. Supp. V. Hoskins, 6 Conn. 106; Elliott v. 853. Brent, Mp'-k. (D. C.) 98 ; Harp v. 217 Miltenberger v. Miltenberger, I'arr, 168 Til. 459; Fisher v. Spence, 78 Mo. 27; Grimm v. Tittman, 113 150 111. 253; In re Noble, 124 111. Mo. 56; Nixon v. Armstrong, 38 266; Grimm v. Tittmann, 113 Mo. Tex. 296. 56; Key v. Weatherlee, 43 S. Car. sisVrooman v. Powers, 47 O. S. 414; 49 Am. St. Rep. 846; Clark 191. V. Clark, 54 Vt. 489: Croft v. Croft, 4 nvatt rvn ^ ins LAW OF WILLS. 217 ified by statute, a husband or wife can not act as attesting witness to a will under which the other is a beneficiary.^i^ Since the competency of attesting witnesses is to be deter- mined as of the date of the will, the subsequent intermarriage of a beneficiary and a subscribing witness does not render such witness incompetent or avoid the devise.^^o But there is no rule of law forbidding the husband of testator's sister, who is not a beneficiary under the will, to act as a subscribing witness to the will. Since he is competent, he can testify at probate, and the certificate of his oath can be introduced at contest, even where his wife is a contestant.^^-^ §198. Effect of modern statutes. This rule of law is affected by statutes of two different classes. a. The first class of statutes provides that a husband or wife may be a competent witness in a case where the other is a party in interest. This is generally effected by a sweeping provision that all persons are competent witnesses, with the exceptions therein enumerated.^^^ If such a statute is so drawn as to apply to probate matters, as well as to ordinary common law jurisdictions, its effect is to allow a husband or wife to act as an attesting witness to a will by which the other is a beneficiary ; or, if after passage of such 219 Hatfield v. Thorp, 5 B. & Aid. Gamble v. Butchee, 87 Tex. 643. No 589; Fortune v. Buck, 23 Conn. 1; distinction is made under these stat- Fisher v. Spence, 150 111. 253; Sul- utes between -wills and testaments. livan V. Sullivan, 106 M&ss. 474; The statute applies equally to dis- Winslow V. Kimball, 25 Me. 493; position of personalty, Hawkins v. Hodgman v. Kittredge, 67 N. H. Hawkins, 54 lo. 443; and of realty, 254 ; Key V. Weatherebee, 43 S. Car. Bates v. Officer, 70 lo. 343. The 414; 49 Am. St. Hep. 846. legacy given to the spouse of such 220 Thorpes v. Bestwick, 50 L. J. attesting witness is not held void in Q. B. 320; 6 Q. B. D. 311; 44 L. T. all jurisdictions. Holt's Will, 56 180 ; 29 W. R. 631 ; 45 J. P. 440. Minn. 33. And the fact that the 221 SlinglofT V. Bruner, 174 HI. spouse is a competent attesting wit- 561. ncss does not always render him 222 Hawkins v. Hawkins, 54 lo. competent generally on contest if 443; Bates v. Officer, 70 To. 343; the other spouse is a party. Holt's Holt's Will, 56 Minn. 33; Lippin- Will, 56 Minn. 33. cott v. Wikoff, 54 N. J. Eq. 107; 218 LAW OF WJLLS. a statute, the statutes which control probate matters recognize such rule of comj^etencv directly or indirectly, the husband or wife of a beneficiary is rendered competent.^^^ Thus, a statute making husband or wife competent where the other is a party in interest "in any proceeding in any court" is held to make such husband or wife a competent wit- ness to a will by which the other is made a beneficiary.^^'* But if the statute refers only to common law tribunals, and is not recognized afterward by the statutes which control probate tribunals, such statute does not alter the common law rule of the incompetency of such husband or wife to act as attesting witness to a will under which the other spouse is a beneficiary.^^^ 6. The second class of statutes affecting the competency of husband or wife provides that bequests or devises to an attesting witness without whom the will can not be proved, are void. There is a difference of judicial opinion as to the effect of such statutes upon the competency of the husband or wife of a beneficiary as an attesting witness. Some jurisdictions hold that such statutes are not to be extended in meaning beyond their express terms, and hence that they do not make such husband or wife a competent witness.^^® Other jurisdictions, by a very liberal construction, treat a devise to husband or wife as a beneficial interest of the other. Hence, under such statutes, they hold that the devise to the 223 See cases in preceding note. Kittredge v. Hodgman, 67 N. H. 224 Lippincott v. Wikoff, 54 X. J. 254; 32 Atl. 158. Eq. 107. (Even if such subscribing Referring to the opposite view witness is also executor.) hereinafter given, the court said, in 225 Fisher v. Spence, 150 111. 253; Sullivan v. Sullivan, 106 Mass. 474: Sullivan v. Sullivan, 106 Mass. 474. "It is founded rather upon a con- Thus in Kentucky it was held that jecture of unexpressed intent of the the code of civil procedure did not legislature, or a consideration of affect the competency of witnesses what they might wisely have enact- to a will. Mercer v. Mackin, 14 ed, than upon a sound judicial ex- Bush. 434. position of the statute by which 226 Fortune v. Buck, 23 Conn. their intent has been manifested.". 1; Sloan's Estate, 184 111. 579; Quoted in Fisher v. Spencer, 150 Fisher v. Spence, 150 111. 253; Sul- 111. 253. livan V. Sullivan, 106 Mass. 474; 219 LAW OF WILLS. husband or wife is void, and that the attesting witness is com- ^^ir*some jurisdictions statutes have been passed which, in express terms, make void gifts to the husband or wife of an attesting witness.^^^ While some difficulties arise under these statutes, they are only the uniform result of a modification of the common aw by statutes which are framed without a full and complete understanding of their bearing and effect upon the pre-existmg rules of law. Where the legislature, while modifymg the general law of evidence, has expressly provided what effect such statute shall bave upon the competency of subscribmg wit- nesses to a will, little or no litigation upon that subject arises. §199. Competency of heir of beneficiary.— Probate j^dge, ex- ecutor, etc. The son of a beneficiary has no immediate interest under the will. Hence he may act as an attesting witness.^^^ This is true even where the beneficiary dies before contest, so that such subscribing witness is directly affected by the outcome of the litigation, since he was competent at the execution of the will.^^''^ So may the probate judge before whom the will is to be proved.231 Where the person named in the will as executor subscribes the will as an attesting witness his competency is a subject of some doubt. The objections to his competency rest on two different grounds. First. That he has such an interest m his commissions that he is a beneficiary; second, that where by the law of procedure, the executor is personally liable lor costs if the will is refused probate, he has, irrespective of his 227Wi<^an V. Rowland, U Hare =^- Nash v. Reed 46 Me. 168; 157. 1 Eq R 213; 17 Jur. 910; Jones v. Tebbetts, 57 Me. 572; Max- 1 W R 383; Jackson v. Wood, 1 well v. Hill, 89 Tenn. 584^ JoL. Cas. 163 ; Jackson v. Durland, -o Maxwell v. Hill 89 Tenn. 584; 2 Johns. Cas. (N. Y.), 314; Wins- -^ Panaud v. ^^^^^l^t''^' low V. Kimball, 25 Me. 493 ; Key v. M'Lean v. Barnard, 1 Root Conn. Weatherslee 43 S. Car. 414. 462; Ford's Case, 2 Ro«; jConn.) weatnersiee, to c.. Patten v. Tallman, 27 Me. 17. 228 Giddings v. Turgeon, 58 Yt. /^^ , fatten 106; So 1 Vict. C. 26, Sec. 15. 220 LAW OF WILLS, commissions a direct interest in the result of the case. Ac- cordino-ly, in some of the earlier cases it was held that one named as executor had such an interest in his commissions that he was a beneficiary under the will, and thus incompetent as a subscribing witness.^^^ Under this theory the incompetency existed at the time of execution and could not be removed by his subsequent renim- ciation of his office.^^^ While under this ruling an executor was not a competent witness to a testament of personalty, he was treated as a competent witness to a will of realty.^^^ Tinder the English statute removing the interest of a sub- scribing witness,^^^ it was finally held that an executor was a competent witness to a mixed will of realty and personalty.^^^ On account of his liability for costs an executor has been held to be an incompetent subscribing witness.^^'^ The reasons given by the older cases for holding an executor to be incompetent have been entirely abandoned by the courts. His commissions are looked upon as merely a compensation for services rendered, and as givi"ng him no financial interest in the probating of the will. He is, as a rule, not personally responsible for costs ; and further, in most states this ground for incompetency is removed by statute. Accordingly, it is now held by the great weight of modern authority that an executor has, at the time of the execution of the will, no such beneficial interest thereunder as renders him incomptent.^^^ It has been 232 Tucker v. Tucker, 5 Ired. L. (S. Car.) 505, modifying Taylor v. (N. Car.) IGl; Morton v. Ingra- Taylor, 1 Rich. L. (S. Car.) 531. ham, 11 Ired. L. (N. Car.) 368; 237 Adams v. Sandige, 29 Ga. 563. Taylor v. Taylor, 1 Rich. L. (S. (In this case the executor deposited Car.), 531; Wilkins v Taylor, 8 the money for the costs before he Rich. Eq. (S. Car.) 291. offered himself as a witness; but 233 Morton v. Ingraham, 11 Ired. it was held that he was still dis- L. (K Car.) 368. qualified because of his right to 234 (Wills of personalty.) Work- recover the costs from the estate, if man v. Dominick, 3 Strobh. (S.Car.) the will were admitted to probate.) 589; Taylor v. Taylor, 1 Rich. L. 238 Spiegelhalter's Will, 1 Pemi (S. Car.) 531. (Will of realty.) (Del.) 5 ; Meyer v. Fogg, 7 Fla. 292 Henderson V. Kenner, 1 Rich. L. ( S. Baker v. Bancroft. 79 Ga. 672 Car.) 474. Jones v. Larrabee, 47 Me. 474 235 25 Geo- n. C. 6. Sears v. Dillingham. 12 Mass. 358 23", Noble V. Burnett, 10 Rich. L. Wyman v. Symmes. 13 All. 153 LAW OF WILLS. 221 said, "This principle is too well settled to justify discussion." ^^® The reason for holding an executor competent has been said in some decisions to be that, as the will is necessarily offered for probate before the executor is appointed, he is not then an executor and may never be.^^*^ Where an executor may be competent, his wife is, of course, competent; ^■^^ and his brother is also competent.^'*^ One who signs testatrix's name to her will at her request may also act as a subscribing witness to such will.^^^ Originally, a creditor of testator could not act as an attesting witnesses where the will benefited creditors by making the debts a charge upon the real estate.^'*'* This rule is now practically obsolete, either by statutes expressly making such creditors competent witnesses, or by statutes which charge the real estate of all testators with their debts.^'^^ Under modern statutes a convict may act as an attesting witness.^^® §200. Husband of testatrix. Under the policy of the common law a husband could not be an attesting witness to his wife's will ; nor could a wife be an attesting witness to her husband's will.^^'^ This rule has been modified by statute in many jurisdictions. Holt's Will, 56 Minn. 33; Rucker 155 ; Lyon's Will, 96 Wis. 339. V. Lambdin, 12 S. & M. (Miss.) 242 Lord v. Lord, 58 N. H. 7. 230; Stewart v. Harriman, 56 N. 243^0; parte Leonard, 39 S. Car. H. 25; Hodgman v. Kittredge, 67 N. 518. H. 254 ; Society, etc., v. Loveridge, 244 Blackstone's Comra., Bk. 3, p. 70 N. Y. 387; Lippincott v. Wi- 377. koff, 54 N. J. Eq. 107; Jordan's 245 Young's Will, 123 N. Car. Estate, 161 Pa. St. 393; Snedekers 358, disting. Pepper v. Broughton, V. Allen, 1 Penn. 24; Lyon's Will, 80 N. Car. 251; and see local stat- 96 Wis. 339. utes. 239 Holt's Will, 56 Minn. 33. 246 Xoble's Estate, 124 111. 266; 240 Hawley v. Brown, 1 Root Diehl v. Rogers, 169 Pa. St. 316 (Conn.) 494 (executor had re- (after pardon). nounced) ; Millay v. Wiley, 46 Me. 247 Pease v. Allis, 110 Mass. 157; 230. Dickinson v. Dickinson, 61 Pa. St. 241 Stewart v. Harriman, 56 N". 401. H. 25; Piper v. Moulton, 72 Me. 222 LAW OF WILLS. §201. What subscribing witnesses are required to attest. The subscribing witnesses are required by statute for the pur- pose of attesting certain requisites of the will. "What these requisites are depends upon the local statute. In most jurisdic- tions the subscribing witnesses are required for the purpose of attesting : ( 1 ) , the signature of the testator, and ( 2 ) , the capac- ity of the testator to make a will. In a few jurisdictions they are also required to attest the publication of the will. §202. The signature of testator to be attested by witnesses. The subscribing witnesses are required to attest that the sig- nature of the testator was made by him, or by some person lawfully authorized by him, as before explained, in the presence of the witnesses.^^^ The only point which needs discussion in this connection is the meaning of the word 'presence'. This will be discussed when the word "presence" is considered as used of witnesses subscribing their names in the presence of testator.^^** §203. Acknowledgment of signature by testator to be attested. Most statutes provide as an alternative to the signature by testator in the presence of the subscribing witnesses, that the testator may acknowledge in the presence of the witnesses, his signature made out of their presence.^^^ This alternative is allowed only when the provisions of the statute permit it. In jurisdictions where the statute is modelled upon the Statute of Frauds, 29 Car. II, c. 3, Sec. 5, the requirement of which is that the will be "attested and subscribed in his presence by three or four credible witnesses," it is well settled by judicial construction that testator may, if he chooses, sign his name out of the presence of the witnesses and afterwards make acknowl- 248 Ela V. Edwards, 16 Gray 249 See Sec. 209, et seq. (Mass.) 91; Jackson v. Jackson, 230 Orimm v. Tittman, 113 Mo. 39 N. Y. 153; Woolley v. Woolley, 56; Skinner v. Am. Bible Soc. 92 95 N. Y. 231 ; Keyl v. Feuchter, 56 Wis. 209. See notes to Sec. 202. O. S. 424 ; Simmons v. Leonard, 91 Tenn. 183. LAW OF WILLS. 223 edgment before them.^^^ But where the statute requires that the will must be attested and subscribed by witnesses who saw testator sign, acknowledgment will not be sufficient unless the statute further adds 'or who heard him acknowledge' his sig- nature, or words substantially equivalent thereto.^^^ As said before, this alternative is added by the codes of most states.^^^ If the witnesses neither see the testator subscribe, nor hear him acknowledge, the Avill is invalid. 254 §204. Acknowledgment of signature by other. This statute allowing testator to acknowledge his signature before attesting witnesses, does not relax the rule as to the actual signing of the will. The will must, in most jurisdictions, as said before, be signed by the testator or by some person in his presence by him duly authorized. If testator acknowledges a signature to attesting witness as his, a prima facie presump- tion arises that the signature was affixed in the form required by law.^^^ But if the evidence shows that the will was signed neither by testator nor by some person in his presence, duly au- thorized, the will is invalid, even though testator has acknowl- edged such signature as his own before attesting witnesses.^^® Where the will has been signed in the presence of testator by 251 Ellis V. Smith, 1 Ves. Jr. 11; Shelley, 6 O. S. 307; Simmons v. Morrison v. Tourman, 18 Ves. Jr. Leonard, 91 Tenn. 183; Roberts v. 183; O'Neill v. Owen, 25 Can. L. J. Welch, 46 Vt. 164; Allen v. Grif- 376; 9 Can. L. J. 297. fin, 69 Wis. 529. 252 So in New Jersey under the 254 Reed v. Watson, 27 Ind. 443 ; act of 1814. Compton v. Milton, 12 Keyl v. Feuchter, 50 0. S. 424; Sim- N. J. L. 70; Mundy v. Mundy, 15 mons v. Leonard, 91 Tenn. 183. N. J. Eq. 290; McElwaine's Will, 25.-, Toomes's Estate, 54 Cal. 509 18 N. J. Ch. 499. Cleveland v. Spilman, 25 Ind. 95 253 Canada's Appeal, 47 Conn. 450 ; Walton v. Kendrick, 122 Mo. 504 Crowley v. Crowley, 80 111. 469; Robins v. Coryell, 27 Barb. 556 In re Convey's Will, 52 lo. 197 : Den- Haynes v. Haynes, 33 O. S. 598 ton V.Franklin, 9 B. Mon. (Ky.) 28; Rosser v. Franklin, 6 Gratt. (Va.) Hall V. Hall. 17 Pick. 273: Nick- 1. erson v. Buck, 12 Cush. 332; Welch 256 Walton v. Kendrick, 122 Mo. V. Adams, 63 N. H. 344; Cravens 504; Main v. Ryder, 84 Pa. St. 217. v. Fauleoner, 28 Mo. 19: Grimm v. Contra. In the matter of Mer- Tittman, 113 Mo. 56; Tonnele v. chant's Will, 1 Tuck. (N. Y.) 17 Hall, 4 N. Y. 140; Radebaugh v. 224 LAW OF WILLS. a person duly authorized bj testator, it is not necessary that testator explain the method of the signature to the witnesses when he acknowledges it. All that is necessary is that he in- dicate to them that the signature to the will is his, as in legal effect it is.2" §205. Form of acknowledgment. No formal or exact set of words is required by law for the acknowledgment of testator's signature. The express words of testator constitute the best form of acknowledgement as being the least subject to mistake. So, reading the attestation clause in the presence of the witnesses, testator's signature being visi- ble, is a sufficient acknowledgment of his signature.^^® Informal statements of testator. As this acknowledgment need not he in any set form, where testator showed the instrument to witnesses with his signature visible thereon, stated that it was his will, and asked them if they 'recognized his signature,' and they answered 'yes' and he then asked them to sign as witnesses, it was held to be a suffi- cient acknowledgment of testator's signature.^^® In Illinois the statute requires the testator to acknowledge the will as his act and deed. It is held that this statute is satisfied by an acknowledgment of the will as testator's act and deed, without his acknowledging his signature, even though the witnesses did not see him sign.^^o jf testator declares the in- strument to be his free and voluntary act and deed, it is a suffi' cient acknowledgment in Pennsylvania.^*^^ 257 Haynes V. Haynes, 33 O. S. ficient to authorize the inference 598; Rosser v. Franklin, 6 Gratt. that he executed the paper as a (Va.) 1. will, and is equivalent to an ac- 258 Allison V. Allison, 46 111. 61. knowledgment that he signed the 259 Stewart v. Stewart, 56 N. J. paper as a will." Harp v. Parr, 168 Eq. 761. 111. 459; Hobart v. Hobart, 154 111. 200 Harp v. Parr, 168 111. 459. 610. "Where a testator requests the 26i Loy v. Kennedy, 1 W. & S. witness to attest his will, this is suf- 396. LAW OF WILLS. ^^"^ Gestures of testator. Acknowledgment may also be made by the acts and gestures of the testator, without using any words about the signature itself. Thus, exhibiting the instrument with testator's signa- ture thereon, and referring to it as testator's will, amounts to an acknowledgment of the signature.^^^ Or if without referring to such instrument as his will the testator produce it with his signature visible and request witness to sign it, this has been held to be sufficient acknowledgment's^ So where testator shows a paper to witnesses with a cross between the words of his name and refers to such paper as his will, this is sufficient ac- knowledgment of the mark as his signature,'"-* and it has been held a sufficient asknowledgment where testator placed before the subscribing witnesses an instrnment which was clearly his will and was named as such on the envelope, and was in^ fact signed by him, when his signature is well known to them.'"^ Statement of others. The statements of others made in testator's presence and hear- ing, such as the statements of the attorney or scrivener who drafts the will and supervises the execution, may be so ac- quiesced in and acted upon by testator as to amount to an ac- knowledgment by him.'ss 262llott y. Genge, 3 Curt. 160; (Mass.) 332; Dewey v. Dewey 1 Smith V. Holden, 58 Kan. 535; Met. (Mass.) 349; Ela v Edwards. Gilbert V. Knox, 52 N. Y. 125. 16 Gray. (Mass.) 91; Grimm v. 263 In re Porter's Will, 20 D. C. Tittman, 113 Mo. 56 ; Odenwaelder v. 493- Turner v. Cook, 36 Ind. 129; Schorr, 8 Mo. App. 458; Peck v. FM V. Pragoff, 79 Ky. 607; Til- Gary, 27 N. Y. 9; Gilbert v. Knox, den V. Tildent 13 Gray. 110 ; Allen 52 N. Y. 125 -In re Nelson 141 N. V. Griffin, 69 Wis. 529. Y. 152 ; Radebaugh v. Shelley, 6 O. 264 Guilfovle's Will, 96 Cal. 598 ; S. 307. Cravens v Vaulconer, 28 Mo. 19; "The silence and presence of the Grimm v Tittman, 113 Mo. 56; testator gave consent to these dec- Stephens V. Stephens, 129 Mo. 422. larations on the part of the person "L Grimm v. Tittman, 113 Mo. superintending the execution of the will, and amounted to an acknowl- ^^oeelncrlesant v. Inglesant, L. R. cdgment by the testator of the will 3 Prob i D^. 172; Harp v. Parr, as his act and deed." Harp v. Parr, 1G8 111. 459; Allison v. Allison, 46 168 111. 459. Hi. 61 ; Nickerson v. Buck, 12 Cush. 226 LAW OF WILLS. Signature of testator visible. In order to constitute a valid acknowledgment, the signature of testator must be visible to the witnesses, so that they can identify it as the signature which testator acknowledged.^^^ If the attesting witnesses can not see the signature of testator at the time of the execution of the will, it is not an acknowl- edgment of the signature within the meaning of the statute.^^^ So where testatrix apparently wrote her name at the foot of an instrument in the presence of witnesses, but they could not see whether she was really writing her name or only pretend- ing to do so; and she then handed the paper to them to sign, so covered up that only the place where they were to sign was left exposed, it was held to be neither a valid subscription in their presence, nor a valid acknowledgment of such subscrip- tion.2<59 What is not an acTcnowledgment. In the absence of any acts of testator, however, the mere as- sumption by the subscribing witnesses that it was in fact tes- tator's will, and was signed by him, is not a substitute for ac- knowledgment by him.^'^*^ The statement that the instrument was testator's, when made by the person supervising the ex- ecution of the will, where testator did not hear it, was not a sufficient acknowledgment by testator.^'^^ §206. Acknowledgment of will instead of signature. The Statute of Frauds required the will to be in writing, signed by testator or by some one in his presence and at his direction, and attested and subscribed by three or four credi- ble witnesses in testator's presence. IS'o provision was inserted 267Mackay's Will, 110 N. Y. 611 ; tin, 121 N. Y. 664; 45 Hun, 1. 1 L. R. A. 491; 18 Am. St. Rep. 268 Lewis v. Lewis, 11 N. Y. 220; 558 ; Smith v. Holden, 58 Kan. 535 ; Mitchell v. Mitchell, 77 N. Y. 596. Stewart v. Stewart, 56 N. J. Eq. 269 Ludwig's Estate, — Minn. 761; Basldn v. Baskin, 36 N. Y. — ; 81 N. W. 758. 416; Willis v. Mott, 36 N. Y. 486; 270 Luper v. Werts, 19 Ore. 122. In re Higgins, 94 N. Y. 554 ; In re 271 Ludlow v. Ludlow, 8 Stew. Phillips, "98 N. Y, 267; In re Aus- (N. J.) 480; 9 Stew. (N. J.) 597. LAW OF WILLS. 227 requiring witnesses to see testator sign or hear him acknowl- edge his signature, nor did the statute specifically provide what the witness was to attest. Where this statute or one like it is in force, it has heen held in some jurisdictions that the witnesses need not see testator's signature. If testator ac- knowledges the instrument as his will, in the presence of the subscribing witnesses, it is sufficient. He does not need to ac- knowledge his signature to the witnesses.^^^ It has been said in some text-books and oUter dicta that under many modern American statutes, the witnesses need not see testator's signature if testator acknowledges the instrument as his will. (3f the cases generally cited in support of this view, some Massachusetts cases are those in which wills were upheld where one or more of the attesting witnesses had no recollec- tion of seeing testator's name before he signed as witness ; but the record was consistent with the theory that testator had ac- knowledged his signature in due form, although the witnesses had forgotten that fact.^^^ Many American cases which are often cited to sustain the proposition that testator need not acknowledge his signature, but that if he acknowledges his will, the witnesses need not see his simature, are reallv cases where the signature was plainly visible to the subscribing witnesses.^^^ In spite, there- fore, of occasional obiters it may be said to be the weight of authority under the modern Wills Acts that an acknowledg- ment of a will by testator is not sufficient unless the witnesses have an opportunity of seeing his signature. 272 White V. Trustees of British 2-3 Dewey v. Dewey, 1 Met. 349; Museum, 6 Bing. 310; Wright v. Hogan v. Grosvenor, 10 Met. 54; Wright, 7 Bing. 457; Johnson v. Tilden v. Tilden, 13 Gray. 110. Johnson, 1 Cr. & M. 140. 274 Canada's Appeal. 47 Conn. 450 ; In the above cases there was a Allison v. Allison, 4G 111. 61 : Brown specific finding of fact that the at- v. McAllister, 34 Ind. 375; Turner testing witnesses did not see the v. Cook, 36 Ind. 129; Flood v. signature of testator. Pragoflf, 79 Ky. 607; Allen v. Grif- fin, 69 Wis. 529, 228 LAW OF WILLS. §207. Effect of failure to sign or acknowledge before witnesses. It is indispensable to tlie validity of the will that it be either signed by testator in the presence of witnesses or ac- knowledged by him in their presence. Where the testator pro- duced his unsigned will and requested the witnesses to sign their names as witnesses to the document, and they signed in his presence, and afterwards in their absence he signed the will, and the attesting witnesses did not, see the signature of testator till the will was produced for probate after testator's death, it was held to be invalid.^'^ §208. Capacity of testator to be attested by witnesses. Further, the subscribing witnesses are required to attest to the capacity of the testator, including his legal age, sanity and freedom from undue inlluence.^^^ This point is often misun- derstood by the witnesses who think that they are attesting only the legal formalities of the execution.^ ^^ §209. Presence. — Mental cognition. The codes generally require the subscribing witness to sign his name in the "presence" of the testator.^^^ In the absence of such statutory provision this is not necessary.^'^^ 275 Keyl V. Feuehter, 56 O. S. 424 Simmons v. Leonard, 91 Tenn. 183 276 Field's Appeal, 36 Conn. 277 Allison V. Allison, 46 111. 61 ; Steph enson v. Stephenson, 62 lo. 163 Withington v.. Withington, 7 Mo 589 ; Chappell v. Trent, 90 Va. 849 Scribner v. Crane, 2 Paige 147 compos to sign — that is, of sound mind, as every will on the face of it imports." Heyward v. Hazard, 1 Bay { S. Car. ) 335, quoted and fol- lowed in Kaufman v. Caughman, 49 S. Car. 159. Contra, that the subscribing wit- nesses do not impliedly attest the und see Whitenack v. Stryker, 2 mental capacity of testator so as to N. J. Eq. 8. discredit their subsequent testi- "The witnesses are not called on mony to the contrary. D'Avignon's ... to attest the mere factum of Will, 12 Colo. App. 489. signing, but the capacity of the 277 See Sec. 374. testator." . . . "The business, then, 27.S Snider v. Burks, 84 Ala. 53; of the persons required by statute Mays v. Mays, 114 Mo. 536. to be present at executing a will is 279 Rogers v. Diamond, 13 Ark. not barely to attest the corporal act 473; In re Cornelius' Will, 14 Ark. of signing, but to try. judge and 675; Abraham v. Wilkins, 17 Ark. determine whether the testator is 292. LAW OF WILLS. 229 The word 'presence' is used in the Statutes of Wills in three connections. A person signing the will for testator must sign in his presence; a testator must sign the will in the presence of the attesting witnesses, or acknowledge the signa- ture as his own ; and the subscribing witnesses must subscribe in the presence of the testator. The word 'presence' has a technical meaning, which is the same in these three contexts. It involves two ideas. (a) ]\[ental cognition of the act. (b) Physical contiguity. The person in whose presence the act is done must be able mentally to know what is being done.^^^ Thus, if he is so faint as not to be able to know what is being done it is impossible within the technical meaning of the term for the act to be done in his presence.^*^ So if his inability to know arises from his being asleep, in a stupor or dying.^^2 Further, in addition to his being able mentally to know what is being done, the person in whose presence the act is to be done must be informed of what is taking place, so that he actually does know what is being done.^^^ Thus, if the witness sign the will close to testator, but in a surreptitious manner, so that he does not know what they are doing, the act is not done in his presence.^^^ If the person in whose presence the act is to be done is mentally capable of knowing what is being done, and is in- formed of what is being done, but through inattention or in- advertence does not take notice, at the time, of what is being 280 Hill V. Barge, 12 Ala. 687; 282 Longford v. Eyre, 1 P. Wms. Hall V. Hall, 18 Ga. 40; Jackson 740; Walters v. Walters, 89 Va. V. Moore, 14 La. Ann. 213; Etch- 849. ison V. Etchison, 53 Md. 348; Wat- 283 Jenner v. Finch, 49 L. J. P. son V. Pipes, 32 Miss. 451 ; Baldwin 25; 5 P. D. lOG; 42 L. T. 327; V. Baldwin, 81 Va. 405; Tucker v. 28 W. R. 520. Sandige, 85 Va. 54G ; Meurer's Will, 2.s4 Waite v. Frisbie, 45 Minn. 44 Wis. 392. 361. 281 Right V. Price, 1 Doug. 241. 280 LAW OF WILLS. done; is the act done in his presence? Upon this point there is a decided difference of judicial opinion chiefly in obiter.^*^ §210. Presence Physical proximity. Further, the word 'presence' implies that what is to be done in a person's presence must take place in physical proximity to such person. "^*^ Exactly what degree of proximity is required has been the subject of a great deal of judicial discussion. The majority of the courts have agreed upon the following principles on this point : 1. Distance is not the test. An act done very near one may not be in his presence, while one done much farther away may be.^^''' l^'or is it a test that the act be done in the same room. It may not be done in the presence of one, though it be done in the room where he is.^^* While it is possible that an act done in an adjoining room may be done in his presence.^^^ 2. However, if the act is done in the same room with a person, it is priyna facie done in his presenco.^^*^ While if done in another room it is prima facie done out of his presence.^^^ In either case the presumption is only prima fade, and may be rebutted.^^^ 2S.5 In Robbins v. Robbins, 50 N. 289 Lamb v. Girtman, 26 Ga. 625; J. Eq. 742, it was said that if a wit- Ambre v. Weishaar, 74 111. 109; Me- ness does not notice what is done, Elfresh v. Guard, 32 Ind. 408 ; Bol- through inattention, it is not done dry v. Parris, 2 Gush.. 433; Mande'- in his presence. In Smith v. Hoi- ville v. Parker, 31 N. J. Eq. 242; den, 58 Kan. 535, the opposite view 34 N. J. Eq. 211 ; Hopkins v. Wheel- is taken, provided the witness saw er, R. I. (1900), 45 Atl. 551; Meur- the result of the act done, upon the er's Will, 44 Wis. 392. same occasion. 290 Ayers v. Ayers, 43 N. J. Eq 286 The use of "personal and ac- 565; Stewart v. Stewart, 56 N. J tual presence" was held to be re- Eq. 761. dundant, but not an erroneous syn- 291 Lamb v. Girtman, 26 Ga. 625, onym for "presence" in Green v. Lamb v. Girtman, 33 Ga. 289. Green, 145 111. 264. 292 Hopkins v. Wheeler, R. ] 287 Neil V. Neil, 1 Leigh (Va.) 6. (19001, 45 Atl. 551. 288 Hamlin v. Fletcher, 64 Ga. 549; Walker v. Walker, 67 Miss. 529. LAW OF WILLS. 231 3. For one who can see the test of presence, as far as physi- cal proximity is concerned, is that the act must be done where he can with reasonable effort see what is being done so as to identify the whole act.^^^ If he can with reasonable effort see what is being done, it is not necessary that he actually see it.^^^ Of course, if the person does actually see the act performed, so as to identify it clearly, such act is done in his presence.^^^ The complicated cases are those in Avhich it can not be shown that such person did actuall ysee what was taking place, so that the courts are obliged to consider his opportunity for seeing what took place at the execution of the will. §211. What is a reasonable effort. What degree of exertion amounts to a reasonable effort is a matter about which there has been considerable discus- 293 Hill V. Barge, 12 Ala. 687; Reed v. Roberts, 26 Ga. 294; Ham- lin V. Fletcher, 64 Ga. 549; How- ard's Will, 5 T. B. Mon. (Ky.) 199; Edelen v. Hardy, 7 Har. & J. (Md. ) 61; Dewey v. Dewey, 1 Met. (Mass.) 349; Allen's Will, 25 Minn. 39; Compton v. Mitton, 7 Hal. (N. J.) 70: Sprague v. Smith, 8 R. I. 252; Wright v. Lewis, 5 Rich. (S. Car.) 212; Drury v. Connell, 177 111. 43; Mendell v. Dunbar, 169 Mass. 74 ; citing Boldry v. Parris, 2 Gush. (Mass.) 433; Spratt v. Spratt, 76 Mich. 384; Maynard v. Vinton, 50 Mich. 139; Hopkins v Wheeler, R. I. 1900: 45 Atl. 551; 294 Baldwin v. Baldwin, 81 Va. 405. Hill V. Barge. 12 Ala. 687; Robinson v. King. 6 Ga. 539 ; Hamlin V. Fletcher, 64 Ga. 549; Turner v. Cook, 36 Ind. 129; McElfresh v. Guard, 32 Ind. 408: Bundy v. Me- Knight, 48 Ind. 502: Shafer v. Smith, 7 H. & J. (Md.) 67; Dewey V Dewey, 1 Met. 349; Aiken v. Weckerly, 19 Mich. 482; Maynard V. Vinton, 59 Mich. 139; Allen's Wills, 25 Minn. 39; Rucker v. Lambdin, 12 S. & M. 230; Wat- son V. Pipes, 32 Miss. 451; Camp- bell V. McGuiggan (N. J. Prer.), 34 Atl. 383; Reynolds v. Reynolds, 1 Speer (S. Car.) 253. "Contiguity with an uninterrupt- ed view between testator and the subscribing witnesses is the indis- pensable element of the physical signing in the testator's presence. It is immaterial that he does not see if he might have done so, but no mere contiguity of the witnesses will be sufficient, if the testator can not see them sign. Nothing will constitute a 'presence' within the meaning of the statute unless the testator can from his actual posi- tion see the act of attestation." Drury v. Connell, 177 111. 43. 29i Bundy v. McKnight, 48 Ind. 502; Allen's Will, 25 Minn. 39. 232 LAW OF WILLS. sioTi. An analysis of the adjudicated eases will show that the weight of authority establishes the following propositions: 1. If the person in wliose presence the act is to be done can see what is taking place by changing the direction of his o-aze, without moving from the place where he is at the time; and he is able to change the direction of his gaze without pain, discomfort or danger, the act thus done is done in his presence.^^® 2. If testator Is so situated that he can not see what is tak- ing place without leaving his place, and he does not leave it, the act is not done in his presence; even though he was able to move with comfort.^^^ Thus, where a door-shutter was partially closed so that testator could not see the witnesses sign witliout moving, and he did not move, it was held that the act Avas not done in his presence.^^^ Where the witnesses signed in an adjoining room, and testator could have seen them sign by walking to the door and looking into the next room, which he did not do, the will was not attested in his presence. ^^'^ 3. If the exertion necessary for such person to change the direction of his gaze, is painful but not dangerous, it seems that the act is not done in his presence, unless it is done where he can see the transaction without making such painful exer- tion to change the direction of his gaze.^"*^ 4. Likewise, if the exertion necessary for him to change the direction of his gaze is dangerous to his life, an act done where he does not in fact see it, but where he could see it by chang- ing the direction of his gaze, can not be said to be done in his presence.^^^ 5. If it is physically impossible for him to move, so as to 296 Campbell v. MeGuiggan (N. J. 30i Witt v. Gardiner, 15^ 111. 176. Prer.) 34 Atl. 383; Maynard v. In this case testator had physical Vinton, 59 Mich. 139; Walker v. strength enough to lean on his bed Walker, 67 Miss. 529. and thus watch the witnesses sign 297 Brooks V. Duffell, 23 Ga. 441 ; the will in the adjoining room, or Downie's Will, 42 Wis. 66. even go into such room; but such 298 Brooks V. Duffell, 23 Ga. 441 ; exertion would have been at the 299 Doe d Wright v. Manifold, 1 risk of his life. Held, the attesta- M. & S. 294. tion was not in his presence. 800 Keed v. Roberts, 26 Ga. 294. LAW OF WILLS. 233 see the act done, such act can not be said to be done in his presence. ^^^ §212. What testator or witness must be able to see. In order to identify tlie act, it is necessary that the testator be able to see either the paper on which the writing is done,^"^ or the motion of the pen as the letters are formed, where he subsequently sees the signature as thus written.^^"* It is not necessary that he be able to see the letters as they are formed.^^^ But where the witnesses see the motion of testa- trix's hand, apparently writing her name, but do not see tlie name while being written, and do not see it afterwards, it is not written in their presence.^^^ On the other hand, if he is not able to see either the paper or the motion of the pen, it is not in his presence even though he can see the parties while they write their names.^^''' §213. Minority view of meaning of presence. In some recent cases the settled meaning of presence, as stated in the text, has been attacked and condemned as too narrow. As we have seen,^^^ the majority rule is that the ability to see constitutes "presence" where testator has phys- ical ability to see at all. The rule suggested by the cases referred to seems to be substantially the same rule as in the case of the blind,^"^ namely, that if, by the exercise of all his available faculties, the person in whose presence the act 302Drury v. Connell, 177 111. 43. ^04 Ayres v. Ayres, 43 JST. J. Eq. The court said in this case: "It 565; Maynard v. Vinton, 59 Mich, would not be attestation in the pres- 139. ence of the testator if he could not 305 Ayers v. Ayers, 43 N. J. Eq. see the act of attestation, but merely 565. understood from the surrounding 306 Ludwig's Estate, — Minn. — ; circumstances that the act was tak- 81 N. W. 758. ing place." 307 Graham v, Graham, 10 Ired. 303 Nock V. Nock. 10 Gratt. (Va.) (K C), 219. 106; Burney v. Allen, 125 N. C. 308 See Sec. 210. 315. 309 See Sec. 214. 234 LAW OF WILLS. is to be done knows what is taking place, the act is done in his presence, whether he sees it done or not.* §214. What is presence of one who is blind. In the case of those who can not see two different tests have been snggested : a. It has been held bj some authorities that the act, if done so that it would be in the presence of one who could see situated in the place of the blind person, is done in the pres- ence of such person.^^*^ b. A safer test and one indorsed by the better line of au- * Gallagher v. Kinkeary, 29 111. App. 415; Smith v. Holden, 58 Kan. 535; Riggs v. Riggs, 135 Mass. 238; Cook V. Winchester, 81 Mich. 581. In Riggs V. Riggs, 135 Mass. 238, the witnesses signed in the same room with the testator about nine feet away from him. He lay on the bed flat on his back and by reason of an injury to his neck could not turn his head so as to see the witnesses sign the will, though his sight was unimpaired. He knew what was taking place and had re- quested the witnesses to sign. Held, such signature was in his presence, citing and refusing to fol- low Aiken v. Weckerly, 19 Mich. 482; Downie's Will, 42 Wis. 66; Jones V. Tuck, 3 Jones (N. Car.), 202; Graham v. Graham, 10 Ired. 219. On similar facts the same view of what 'presence' means was taken in Cook V. Winchester, 81 Mich. 581; 8 L. R. A. 822. In Smith v. Holden, 58 Kan. 535, the evidence developed that a wit- ness had been inattentive and ap- parently had gone into an adioin- ing room at the moment of sig- nature by testatrix and returning had found the act done. The court held that even if the witness did not see the signature written and heard no acknowledgment thereof, it was nevertheless signed in his pres- ence. Speaking of the witnesses, the court said: "If not at all times within her (the testatrix's) sight and hearing, they were within the circle and contiguity of her pres- ence." In Cunningham v. Cunningham, 83 N. W. (Minn.) (1900) 58, tes- tator signed the will in the pres- ence of the witnesses. They then stepped into the next room to a table and subscribed their names to the will. Testator could have seen them sign by arising from the chair in which he was sitting and' stepping forward about three feet; but by preference he remained in the chair from which he could not see the table. In less than two minutes the witnesses returned with the will and pointed out their signatures to testator who looked over and pronounced it "all right." This was held to be* a valid attes- tation in the presence of testator. 310 In re Piercy, 1 Rob. 278. LAW OF WILLS. 235 thorities is that the act must be done in such proximity to the blind person that he can, by means of his remaining senses, know what is being done.^^^ §215. Effect of acknowledgment by witness of his signature not made in presence of testator. Most statutes require the witness to sign in the presence of the testator, and make no mention of any acknowledgment by the witness of his signature made without testator's pres- ence. Where the statutory provisions are of this nature the requirement that the witnesses sign in the presence of the testator is imperative."'^ If they sign out of his presence and afterwar.is acknowledge in his presence that they signed their names, the will is invalid."^^^ Retracing their signatures with a dry pen is nothing more than an acknowledgment. Re- tracing a former signature with a dry pen is not a signing by the witness; ^^'* nor is adding a cross stroke to change a T to an F.^^^ These acts amount to nothing more than an acknowl- edgment of such signature. §216. Presence of each other. Unless the statute expressly requires it, the witnesses are not required to sign in the presence of each other, but may sign at different times and places.^^^ In some few jurisdie- 311 See dicta in Riggs v. Riggs, ^'^* Goods of Maddock, 43 L. J. 135 Mass. 238; Ray v. Hill, 3 P. 29; L. R. 3 P. & M. 169; 30 Strobh. (S. Car.), 297; Reynolds L. T. 696 ; 22 W. R. 741. Goods of V. Reynolds, 1 Spears (S. Car.), Cunningham, 4 Sw. & Tr. 194; 29 253. L. J. P. 71 ; Home v. Feather stone, 312 See cases cited in following 73 Law. T. 32. notes. 315 Hindmarsh v. Charlton, 8 H. 3i3Duffie V. Corridon, 40 Ga. 122; L. Cas. 160; 7 Jur. (N. S.), 611: Lamb v. Girtman, 33 Ga. 289; Men- 4 L. T. 125; 9 W. R. 521. dell V. Dunbar, 169 Mass. 74; Chase 3i6 Grayson v. Atkinson, 2 Ves. V. Kittredge, 11 Atl. (Mass.) 49; 454; Ellis v. Smith. 1 Ves. Jr. 11; Pawtucket v. Ballon, 15 R. I. .58. Hoffman v. Hoffman. 26 Ala. 535; Contra, Sturdivant v. Birehett, 10 Moore v. Spie, 80 Ala. 129 ; Rogers G-ratt. (Va.). 67 : Parramore V. Tay- v. Diamond. 13 Ark. 474; Porter's lor, 11 Graft. (Va.). 220. Estate, 9 Maekey (D. C), 493; 236 LAW OF WILLS. tions the presence of all the subscribing witnesses together is required by statute.^^^ The English statute requires thai the signature be "made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator." This has been construed to require that the witnesses subscribe in the presence of each other.^^^ A similar statute in Virginia has been construed not to require witnesses to subscribe in the presence of each other.319 However, when the will has been changed between the time that the first witness signed it and the time when the others sign, it is not properly attested. The same instrument must be atttested by the proper number of witnesses as a prerequi- site to its validity.^^^ §217. Animus attestandi. The witness must act with the intention of being a "v\at- ness — ^with the animus attestandi. This is always neces- sary,^-^ but it becomes important only when he has sub- scribed his name to the will, as without such subscription his intention is immaterial. So where one signs the will as an amanuensis to indicate that he wrote testator's name, as "A B by C D," he does not sign animo attestandi, and he must sign again with such in- Webb V. Fleming, 30 Ga. 808; Flinn (Va.), 239; Smith's Will, 52 Wis. V. Owen, 58 111. Ill; Johnson v. 543. Johnson, 106 Ind. 475; Grubbs v. sit /^j, re Simmons, 3 Curt. 79; Marshall, Ky., no off. rep.; 13 S. Moore v. King, 3 Curt. 243; Lane's W. 447; Hogan v. Grosvenor, 10 Appeal, 57 Conn. 182; 4 L. R. A. Met. (Mass.), 54; Dewey v. Dewey, 45; Roberts v. Welch, 46 Vt. 164. 1 Met. 349; Cravens v. Faulconer, 3i 8 Moore v. King, 3 Curt. 243; 28 Mo. 19; Grimm v. Tittman, 113 Wyatt v. Berry (1893), P. 5. Mo. 56; Welch v. Adams, 63 N. 3i9 Green v. Grain. 12 Gratt. H. 344: Haysradt v. Kingman, 22 (Va.),252. N. Y. 372; Willis v. Mott, 36 N. 320 Patterson v. Ransom, 55 Ind. Y. 486; Raudebaugh v. Shelley, 6 402. 0. S. 307; Simmons v. Leonard, 91 321 Boone v. Lewis, 103 N. Car. Tenn. 183: Logue v. Stanton, 5 40: Fowler v. Stagner, 55 Tex. Sneed 97; Beane v.Yerbv. 12 Gratt. 303: Peake v. Jenkins. 80 Va. 29.3. 2H7 LAW OF WILLS. tent in order to be an attesting witness.^^^ So where lie at- tempts to write his name as an attesting witness and aban- dons the attempt, or where, in order to deceive, he writes an assumed nanie.^^^ So where one writes his name as a wit- ness to certain interlineations, and not to the will, he does not thereby become a subscribing witness.^- So where a testator indorsed on his will ^lie within is the basis on which I wish to have my affairs disposed of, should no other will be made bv me " and a witness attested this indorsement, it was held that such attestation was evidently not made with the intent of witnessing the will, and that parol evidence would not be admissible to show such intention.^^s \lso where the receiver, who was nominated executor writes his name upon the will as an indication of his acceptance he was held not to be a subscribing witness.^^^ But where a tes- tator, tlirough a mistake in the law, formally acknowledges the instrument as his will before a magistrate, who adds his official certificate of such fact, such magistrate may be counted as an attesting witness.^ ^^ §218. Request of testator. • The statutes generally require that the witness sign at the request of the testator, omitting the word express.^^^s The re- quest of testator is undoubtedly made in the best way by the express words of the testator himself ;^^^ but a request made bv some other person in the presence of testator and assented to by testator is sufficient.^^^ Thus it was held a good request 32. Burton v. Brown, -Miss. -; 3.7 Payne v. Payne, 54 Ark. 415; 25 So 01- Peake v. Jenkins, 80 Murray v. Murphy, 39 Miss. 214. Va 29.3 distinguishing P6llock V. 328 The Nebraska Statute does not Glassell' 2 Gratt. (Va.), 439. make the request of the testator 323 Goods .of LeveringtoH, 55 L. necessary. Thompson v. Thompson, J P 62- 11 P r> 80. 49 Neb. 157. 'z.lln re Cunningham, 1 S. & 329 Bundy v. McKnight, 48 Ind g J32 - 502; Dyer v. Dyer, 87 Ind. 13; ■325 Patterson v. Ransom, 55 Ind. Whitenack v. Stryker, 2 N. J. Eq 402. 326 Snelgrove v. Snelgrove, 4 De Saus. 274. Combs V. Jolly, 3 N. J. Eq 625. 330 Huff V. Huff, 41 Ga. 695 238 LAW OF WILLS. of testator when his attorney said to him in the presence of A and B : "Do you wish A and B to witness your will ?" and the testator answered "Yes." ^^^ And the request may be im- plied from the acts, conduct and gestures of the testator, as well as from his words.^^^ So testator may make his request by acquiescence in the suggestion of a witness.^^^ But as the necessity of testator's request is created by statute, where the statute omits the requirement of testator's request it is not nec- essarv.^^^ §219. Signature by witness. The witness is required by the statute to "subscribe" the ivill. This subscription should be his full name, but such for- mality is not indispensable. The witness may sign his ini- tials^^^ or an assumed name,^^^ unless such name is assumed to deceive the court into believing that another j^erson signed Bundy v. McKnight, 48 Ind. 502; Dyer v. Dyer, 87 Ind. 13; Elkin- ton V. Brick, 44 N. J. Eq. 154; Peck V. Carey, 27 N. Y. 9; Coffin V. Coffin, 23 N. Y. 9; Gilbert v. Knox, 52 N. Y. 125; Nelson's Will, 141 X. Y. 152; Whitenack v. Stry- ker, 2 N. J. Eq. 8 ; Combs v. Jolly, 3 N. J. Eq. 625; Mundy v. Mundy, 15 N. .T. Eq. 290; Biirney v. Allen, 125 N. C. 315; Cheatham v. Hatch- er, 30 Gratt. (Va.), 56. 33iMullin's Estate, 110 Cal. 252. 332 Payne v. Payne, 54 Ark. 415; Higgins V. Carleton, 28 Md. 115: Allen's Will, 25 Minn. 39; White- nack V. Stryker, 2 N. J. Eq. 8; Raaidebaugh v. Shelley, 6 0. S. 307; Meurer's Wills, 44 Wis. 392. 333 Coffin V. Coffin, 23 N. Y. 9. 334 Mulligan v. Leonard, 46 lo. 692 ; Thompson v. Thompson, 49 Neb. 157. 335 [n re Christian, 2 Rob. Ecc. Rep. 110; Jackson v. Van Duzen, 5 Johns. (N. Y. ), 144; Adams v. Chaplin, 1 Hill Eq. ( S. Car.), 265. ^36 In re Olliver, 2 Spinks, 57. Contra, where witness by inadver- tence wrote testator's name instead of his own. In re Walker's Estate, 110 Cal. 387. In this case the will was attested under a statute requiring each wit- ness to "sign his name." The court distinguished the fol- ]r>'ving cases as decided under stat- utes that merely required each wit- ness to 'subscribe.' Goods of Eynon, 3 L. R. Pro. & D. 92: Goods of Christian, 2 Rob. Ecc. 110; In re Olliver, 2 Spinks, 57 ; and distin- guished the following case under a statute like the California Stat- ute, as one where the witness signed by a mark and another wrote the correct name of the witness. Mee- han V. Rourke, 2 Bradf. 385. LAW OF WILLS. 239 the will in which case the animus attestand^ is lacking. A the will, m wn c ^^,.1,338 Where the statute allows witness may sign by his maik. wne a witness to ^'attest by his mark provided he ^^^^^^^^^ same" a competent witness is not disqualified by mab ity to « his Lk when the will is o W ^^^^;;^ even if the wrong name is written by the mark by mistake t le ^aUire is goofs- As in the case of the testate^ the wU ne^' hand may be glided by some other person while he h d pen-^ It has been held to be a good sigiiature by the wi n"s where he touches the pen with which another writes hi. name.^ 342 §220. Signature of witness by another. But there is this difference between the signature of the testator and that of the witness: The codes general y provide hat some other person niay sign ior testator >f duly author- ized No such provisions are made for the signature of a wit ness. Where no such provision is made the signature of a witness made hy some other person is of no effect, even though the witness and the testator are both present and request such signature, and the will is invalid unless, excluding such wit- ness, it is subscribed by the required number of witnesses. 337 Pryor v. Pryor, 29 L. J. P. 114; Goods of Lever ington, 55 L. J. P. 62; 11 P. 1). 80. 338 Goods of Enyon, 42 L. J. P. 52; L. R. 3 P. 92; 29 L. T. 45; 21 W. R. 856; Doe d Davis v. Davis, 9 Q. B. 648 ; 16 L. J. Q. B. 97 ; U Jur. 182; In re Amiss, 2 Rob. Rep. 116; Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, 8 Ves. 504; Wright V. Wakeford, 17 Ves. 459; Grayson v. Atkinson, 2 Ves. 454; Dick. 158; Garrett v. Heflin, 98 Ala. 615 ; Davis v. Semmes, 51 Ark. 48; Thompson v. Davitte, 59 Ga. 472 ; Gilis v. Gilis, 96 Ga. 1 ; Need- ham' v. Needham, 3 Dane. Abr. 452; Compton v. Mitton, 12 N. J. L. 70; Meehan v. Roiirke, 2 Bradf. 385; Prigden v. Prigden, 13 Ired. (N. Car.), 259; Ford v. Ford, 7 Ihimph. (Tenn.), 92; Rose v. Allen, 1 Cold. (Tenn.), 23. 339Gillis v. Gillis, 96 Ga. 1. 340 In re Ashmore, 3 Cush. 756. 341 Lewis V. Lewis, 2 Sw. & Tr. 153: 4 L. T. 583; Goods of Lewis, 31 L. J. P. 153: 7 Jur. (N. S.), 688: Goods of FrHh, 1 Sw. & Tr. 8; 27 L. J. P. 6; 4 Jur. (N. S.), 288; 6 W. R. 262; Harrison v. Elvin, 3 Q. B. 117; 6 Jur. 849; Campbell v. Logan. 2 Brad. 90. 342 Bell v. Hughes, 5 L. R. Ir. 407. This, however, has been doubt- ed in In re Kelcher, 6 No. Cas. 15. 343 7„ re White, 7 Jur. 1045; In 240 I'AW OF WILLS. In some states, however, a contrary view is taken. It is a well- recooiiized principle of common law that where A signs or seals for B in B's presence and by B's direction, this is, in legal effect, B's act. This principle applies to contracts and convey- ances. And the states which entertain this contrary view and hold that a witness' name may be written by another reach their conclusion by extending this common law principle to wills.344 §221. Place of signature of witness. The statutes of wills generally require the attesting wit- nesses to "subscribe" their names to the will as such witnesses. The weight of authority is that the word "subscribe" has not the same meaning when used in the Wills Act of the signa- ture of the subscribing witnesses, that it has when used in the Statute of Frauds of the signature "of the party to be charged therewith." In the latter case "subscribe" means to write be- neath, i. e., at the end of the document. But when the wit- nesses are required by the Wills Act to subscribe their names it is held that they may ^vrite them in any part of the will so that it appears on the face of the will that they were written animo attestandi.^^^ Thus the subscribing witnesses may write their names above the attestation clause,^^*' or where the will recites the presence of the witnesses, each witness may sign his name where it appears in the body of the will,^-*^ or the names of the witnesses may appear on the back of the will.^^^ re Leveiington, 11 Pro. Div. 80; Crawford's Will, 46 S. Car. 299; Goods of Diiggins, 39 L. J. P. Jesse v. Parker, G Gratt. (Va.) , 57 : 24; Riley v. Pdley, 36 Ala. 496; 52 Am. Dec. 102. Horton v. Johnson, 18 Ga. 396; 34d Goods of Streatly 0891), Pr. In re Lossee's Will, 34 N. Y. S. 172; Potts v. Felton, 70 Ind. 166; 1120; Simmons v. Leonard, 91 Tenn. Heady's Will, 15 Abb. Pr. (X. S.), 183; McFarland v. Bush, 94 Tenn. 211. 538 ; 27 L. R. A. 662. 3*6 Moale v. Cutting, 59 Md. 510. 344 Schnee v. Schnee (Kan.) 347 Franks v. Chapman, 64 Tex. (1900), 60 Pac. 738; Upchurch v. 159. ■ Upchurch, 16 B. Mon. (Ky.), 102; 348 Goods of Braddock, 1 Pro. Lord V. Lord, 58 N. H. 7; In re Div. 433. Strong, 39 St. Rep. (N. Y.), 852; LAW OF WILLS. 241 A considerable space between the signature of testator and those of the witnesses, as where, testator signed his will at the end of the dispositive part on the first page, and the attestation clause was at the top of the fourth page, two blank pages inter- vening between the signature and the attestation clause, does not invalidate such will.^'^ Where a will and codicil were executed at the same time and were written on the same piece of paper, it was held, where the witnesses signed their names under the will only, that it was a good attestation as to both will and codicil.^^^ Where witnesses wrote their names on the margins of the first and second sheets of the will, opposite certain alterations, this was held to be a valid attestation and subscription, since the evidence showed that they signed as witnesses to the signature of the testator, and not as witnesses merely to the alterations.^^^ Contrary view. — But where the will was folded and sealed up after it was written and signed by the testator, and the sub- scribing witnesses, at the request of testator, wrote their names on the back of the will, it was held not to be a good subscrip- tion.-'^^2 Statutory Rule. — In some jurisdictions by special statute the witnesses are required to subscribe their names at the end of the will.^"^ Hence a will signed by the testator before a no- tary and then placed in an envelope, which was sealed, and on the back of which the witnesses wrote their names, was held not to be sigiied at the end thereof.^^^ §222. Order of signing. If subscribing witnesses sign their names to a will before testator signs it, and leave while the will is still unsigned, it is 349 Singers Will, 44 N. Y. Supp. 354 Vogel v. Lehritter, 139 N. Y. 606. 223. This case differs from Soward 350 Fowler v. Stagiier, 55 Tex. 393. v. Soward, supra, in that it was de- ■'«5i/n re Streatley (1891). P. cided under a statute which required 172. the witnesses to sign at the end 352 Soward v. Soward, 1 Duv. of the will, while in Soward v. (Ky. ), 126. Soward the statute only required 353 Conway's Will, 124 N. Y. 455. the witnesses to subscribe the will. 242 LAW OF WILLS. evident that the will is not executed in compliance with law, for the witnesses neither saw testator sign the will nor heard him acknowledge his signature thereto. In such cases the will is held not to be executed in compliance with the law.^^^ A different case, however, is presented where one or more of the witnesses sign the will before the testator ; but immediately afterwards and as a part of the same transaction the testator signs his name to the will. In this latter case the attesting witnesses see testator sign his name. The only question to determine is whether the fact that the witnesses signed before testator invalidates the will. Upon this question there is some difference in judicial decision and still greater confusion in discussing the question. The view that seems to have the weight of modern authority is that "in acts substantially con- temporaneous it can not be said that there is any substantial priority,'' ^°^ and that where the execution is completed at one transaction it can not be held that the will is rendered invalid because one or more of the witnesses signed before testator.^^'^ It must be admitted that there is a line of cases in which it is held, contrary to the weight of authority, that if the witnesses or one of them sign before testator, even at the same transaction, 355 Duffie V. Corridon, 40 Ga. 122. 356 Kaufman v. Caughman, 49 (In this case three witnesses were S. Car. 159. necessary. Two signed the will 357 O'Brien v. Gallagher, 25 Conn, before testator. At a subsequent 229; Swift v. Wiley, 1 B. Mon. occasion testator and the third wit- (Ky. ) 114; Upchurch v. Upchurch, ness signed in the presence of one 16 B. Mon. (Ky. ), 102; Gibson v. of the first two witnesses. The Nelson, 181 111. 122; Mundy v. other witness did not see testator Mundy, 15 N. J. Eq. 290; Moale v. sign the will nor hear him acknowl- Cutting, 59 Md. 510; Miller v. Mc- edge his signature. The will was Neil, 35 Pa. St. 217; Kaufman v. held to be invalid.) Reed v. Wat- Caughman, 49 S. Car. 159; Rosser son, 27 Ind. 443 (one of two wit- v. Franklin, 6 Gratt. (Va.), 1. nesses neither saw testator sign There seems to be no distinction the will nor heard him acknowledge between such cases as Mundy v. his signature); Chisholm v. Ben, Mundy, 15 N. J. Eq. 290; where 7 B. Mon. 408 ; Keyle v. Feuchter, one witness signed before testator 56 0. S. 424 (neither witness saw and one after, and cases where both testator sign or heard him acknowl- witnesses signed before testator, edge his signature ) . LAW OF WILLS. 243 the will is not properly executed, and should be refused admis- sion to probate.'^^* In another line of cases the question of the effect of the wit- nesses' signing before the testator is indeed presented, but with the additional fact that the witnesses left before testator sif-ned. These cases are undoubtedly correct in holding that the will is not properly executed, but are not precedents against the weight of authority, though often cited as such.^^^ So another line of cases presents the question of the validity of a will, where the witnesses sign l)efore testator and not in his presence, and afterwards testator signs in their presence, and they then acknowledge their signatures. These wills are held to be invalid in most jurisdictions, as it is settled by the weight of authority that a witness must sign in the presence of testator, and that his acknowledgment is not a substitute for such signature.^'"' But these cases are not in support of the view here given as the minority view, though often cited in support of it.^^'^ 358 Goods of Olding, 2 Curt. Ecc. 865 ; Cooper v. Bockett, 3 Curt. Ecc. 643; Shaw v. Neville, 1 Jur. (N. S.), 408; Brooks v. Woodson, 87 Ga. 379; 14 L. R. A. 160; Marshall V. Mason [Mass. 1900], 57 N. E. 340; Jackson v. Jackson, 39 N. Y. 153 ; Sisters of Charity v. Kelly, 67 N. Y. 409 ; Knapp v. Reilly, 3 Dem. 427 ; In re McMulkin, 6 Dem. 347 ; Simmons v. Leonard, 91 Tenn. 183. These cases are squarely on this point. In deciding them, however, the courts have rested on the sup- posed authority of other cases which do not turn upon this point, though some obiter dicta in the opinions of the courts discuss it. Among the latter are some cases in which the question has merely been raised. Lewis's Will, 51 Wis. 101, or in which it is a pure obiter, Welty V. Welty, 8 Md. 15. 359 See the first note in this sec- tion. 360 Chase v. Kittredge, 11 All. (Mass.), 49. 3G1 Another case sometimes cited on this subject is one in which a witness signed testator's name, then the witnesses wrote their names and then the testator made his mark, it was hold that the will was valid, on the theory that as the testator authorized the writing of his name the signature Avas complete befort the witnesses signed and his mark was superfluous. Sechrest v. Ed- wards, 4 Met. (Ky.), 163. While correctly decided, this case has evi- dently no bearing upon the topic under discussion, since testator ac- tually signed before the witnesses. 244 LAW OF WILLS. §223. Necessity and value of attestation clanse. Under the statutes in force in most states a formal attesta- tion clause is not necessarv.^^^ ^^^\T form of signing wliicL shows that it is done animo attestandi is sufficient.^^"^ It is sufficient for the witnesses to subscribe their names after the word "witnesses." ^'^'^ So an incomplete attestation clause, such as "signed and sealed in the presence of/' does not render the will invalid.^^^ The signatures of the witnesses, without any additional word explanatory of their purpose in signing is held sufficient.^^^ But while not indispensable, a full attestation clause is of the highest value. It removes all doubt as to the animus attestandi, and on proof of the signatures is prima facie evidence that tlie acts therein recited have all been properly done.^^^ This is true even where the subscribing witnesses have forgotten what took place at the time of executing the will.^"^ 362 Berberet v. Berberet, 131 Mo. 399; Forsaith v. Clark, 21 X. H. 409; Allaire v. Allaire, 37 X. J. L. (8 Vr.), 312: 39 X. J. L. (10 Vr.), 113; Baskin v, Baskin, 36 X". Y. 416. 363 Roberts v. Phillips, 4 El. & Bl. 450; Bryan v. White, 5 E. L. & Eq. 579; Pots v. Felton, 70 Ind. 166; Olerick v. Ross, 146 Ind. 282: Robinson v. Brewster, 140 111. 649; Ela V. Edwards, 16 Gray (Mass.), 91; Osborn v. Cook, 11 Cush. (Mass.), 532; Fatheree v. Lawrence, 33 Miss. 585 ; Jackson v. Jackson, 39 N. Y. 153 : Waddington v. Buzby, 45 X. J. Eq. 173; Fry's Will, 2 E. I. 88. 384 Olerick v. Ross, 146 Ind. 282. 365 Herbert v. Berrier, 81 Ind. 1 : Hallowell v. Hallowell, 81 Ind. 251. S66 Berberet v. Berberet, 131 Mo. 399; See Sec. 221. 367 Denpree v. Deupree, 45 Ga. 415; Swain v. Edmunds, 54 X. J. Eq. 438: 53 N. J. Eq. 142: Darnell V. Buzby, 50 N. J. Eq. 725; Far- ley V. Farley, 50 X. J. Eq. 434; Avers v. Ayers, 43 X. J. Eq. 565; Allaire v. Allaire, 37 N. J. La. 312; Mundy v, Mundy, 15 X. J. Eq. 290 : McCurdy v. Xeal, 42 X. J. Eq. 333 ; Turnure v. Turnure, 35 X. J. Eq. 437; Mandeville v. Par- ker, 31 X'. J. Eq. 242; Boylan Ads. Meeker, 4 Dutch. 274; Compton V. Mitton, 7 Hal. 70; Tappen v. Davidson, 27 X. J. Eq. 459; Jack- son V. Jackson, 39 X. Y. 153; Rugg V. Rugg, 83 X. Y. 592; In re Cott- rell, 95 X^. Y. 329; In re Hunt, 110 X. Y. 278; Clark v. Duunavant, 10 Leigh (Va.), 13. Thus an attestation clause which recites the facts is prima facie evi- dence that testator signed the will in due form : Alpaugh's Will, 23 X'. J. Eq. 507 : and that the wit- nesses were present. Kirkpatrick's Will, 22 X. J. Eq. 463. 368 Thompson v. Owen, 174 111. 220 : Barnes v. Barnes, 06 Me. 286: Farley v. Farley, 50 X. J. Eq. 434; Tappen v. Davidson, 12 C, E. Gr. 459. 245 LAW OF WILLS. §224. Residence of witnesses. In some states it is required by statute that the witness write his place of residence opposite his name. Such provi- sions are held txD be directory only, and the omission ol the place of residence does not invalidate the will unless the stat- ute expressly gives such effect to the omission.=^«« PART V— PUBLICATION. §225. Publication. — Definition. Publication is the act of making it known in the presence of witnesses that the instrument U> be executed is the last will and testament of the testator.^^^ §226. Form of publication. It is not necessary to constitute publication that the con- tents of the will be made known to tlie witnesses,^^^^ nor is it material whether publication precedes or follows the signing of the will.^^2 Publication may be made before the will is signed if it is signed as part of the same transaction,^^ ^^ and it may also be made while the witness is in the act of signing his name.^"^^ But if made after execution is complete, at another time, it is not sufficient.^'^ ^ Publication mav be made by the express declaration ot the testator that the instrument is his will, or by that of some third person, as the attorney who draws the will, in the presence of testator when adopted by the words or acts of testator as his 369 Succession of Justus, 47 La. 372 Ayres v. Ayres 43 N- J^ ^q- Ann. 302; In re Phillips, 98 N. Y. 565; Jackson v. Jackson, 39 N. Y. 267 ; Dodge v. Finlay, 57 N. Y. 153. t^- i^ -,0 ^ T „" 373Errickson v. Fields, 30 M. J. bupp. '■ • ,T 1 n Ki -KT TTn 634- Mickle V. Matlack, 17 sToHildreth v. Marshall, 51 -N. ii.q. d^-i , luicivic J Eq. 241 ; Gilbert v. Knox, 52 N. N. J. L. 86. Y 125; Thonipson v. Stevens, -62 -. /. .. Phillips 98 N. Y^ 267. N. Y. 634; In re Beckett, 103 N. 375 /n re Dale, 56 Hun, 169. Y. 167. 371 Coffin V. Coffin, 23 N. Y. 9; Voorhis's Will, 125 N. Y. 765. 246 LAW OF WJLLS. own.^'^'' Thus Avliere the scrivener told testatrix in the pres- ence of the attesting witnesses that he had brought them to witness her will, and she thereupon signed it in their presence, with full knowledge of its contents, it was held to be a valid execution including publication.^^' It may be made by ref- erence to the instrument as a "will" without any formal decla- ration.^^^ Or such description of the scope of the instrument as shows that it is testamentary in its nature has been held a valid publication.^^'' It is also a good publication when made by the acts and gestures of testator, as well as by his words. Any method whereby he communicates to the witnesses that the instrument is his last will and testament is suificient.^^*^ And where testator asks the subscribing witnesses to meet him at a certain place to witness his will, and on their meeting at such place testator's acts in having them sign as witnesses, will, together with his previous conversation, be a sufficient publication.3^^ But a declaration that leaves the nature of the instrument in doubt will not be a sufficient publication. Thus, where the testator said to the witnesses "I declare the within to be my will and deed," such declaration was held not to be a sufficient publication.^^^ So where testatrix concealed from the witnesses the fact that the instrument was a will, and always referred to it a "a writing." ^^^ The witnesses before whom publication is required to be made are by statute required to be the witnesses who attest and subscribe the will.^^'* 3T6Mundy v. Mundy, 15 N. J. L. 86; Elkinton v. Brick, 44 N. J. Eq. 290; Elkinton v. Brick, 44 N. J. Eq. 154; 1 K R. A. 161; Lane v. Eq. 154; Hildreth v. Marshall, 51 Lane, 95 N. Y. 494; In re Hunt, 110 N. J. Eq. 241; Voorhis's Will, 125 N. Y. 278; In re Beckett, 103 N. N. Y. 765. Y. 167 : Coffin v. Coffin, 23 N. Y. 9. 377 Hildreth v. Marshall, 51 N. ssi Robbins v. Robbins, 50 N. J. J. Eq. 241; Denny v. Pinney, 60 Eq. 742. Vt. 524; 12 Atl. 108. 382 Lewis v. Lewis, 11 N. Y. 220. 378 Porter v. Ford, 82 Ky. 191. 3S3 Darnell v. Buzby, 50 N. J. 379 Beckett's Will, 103 N. Y. Eq. 725. 167; In re Hunt, 110 N. Y. 278. 384 Darnell v. Buzby, 50 K J 380Corapton v. Mitton, 7 Hal. Eq. 725; In re Phillips, 98 K i 70; Buzby v. Darnell, 52 N. J. Eq. 267. 337; Mickle v. Matlock, 17 N. J. LAW OF WILLS. 247 §227. Necessity of publication. In some jurisdictions publication is expressly required bj statute as a requisite to the validity of a will. States of this class are N^ew York and New Jersey.^^^ In the absence of a statute requiring publication is it neces- sary that the attesting witnesses know that the instrument to which they subscribe their names is a will ? While there is some diversity of judicial opinion on this point, especially in the obiter dicta, the great weight of au- thority is that in the absence of express statute it is not neces- sary that witnesses be informed that the instrument attested is a will.^^*^ Thus, where the testator showed witnesses a pa- per with his signature and asked them to attest it, it was held to be a sufficient acknowledgment of the signature and a valid attestation.^ ^'^ The fundamental reason for this rule is that the legislature has prescribed in full all the formalities neces- 385 Mundy v. Mundy, 2 McCart. 290; Combs v. Jolly, 3 N. J. Eq, 625; Swain v, Edmunds, 54 N. J. Eq. 438; 53 N. J. Eq. 142; Sey- mour V. Van Wyck, 6 N. Y. 120. 386 Wyndham v. Chetwynd, 1 Bur. 414; Bond v. Seavvell, 3 Bur. 1773; Trimmer v. Jackson, reported 4 Burns Ece. Law, 9th ed. 102 ; Moodie V. Read, 7 Taunt. 361; Leverett v. Carlisle, 19 Ala. 80; Barnewall v. Murrell, 108 Ala. 366; Canada's Appeal, 47 Conn. 450; Porter's Es- tate, 9 Mackey, 493; Dichie, v. Car- ter, 42 111. 376; Brown v. McAllis- ter, 34 Ind. 375 ; Turner v. Cook, 36 Ind. 129; Scott v. Hawk, 107 lo. 723; Convey's Will, 52 lo. 199; Hulse's Will, 52 lo. 662; Flood v. Pragoff, 79 Ky. 607 ; Welty v. Welty, 8 Md. 15; Watson v. Pipes. 32 Miss. 451; Tilden v. Tilden, 13 Gray, 110; Osborn v. Cook, 11 Cush. 532 (modifying Swett v. Board- man, 1 Mass. 258) ; Cilley v. Cil- ley, 34 Me. 162; Linton's Appeal, 104 Pa. St. 228; Gable v. Ranch, 50 S. Car. 95; Verdier v. Verdier, 8 Rich. 135; Dean v. Dean, 27 Vt. 746; Allen v. Griffin, 69 Wis. 529; Skinner v. American Bible Society, 92 Wis. 209. (This point was que- ried in Downie's Will, 42 Wis. 66.) "Neither is it necessary, as has been insisted, that there should be proof of formal publication of the will by the testator. The will may be good without any words of the testator declaratory of the nature of the instrument or any formal recognition of the instrument or allusion to it." Verdier v. Verdier, 8 Rich. 135, quoted in Gable v. Ranch, 50 S. Car. 95. 387 In re Porter's Will, 20 D. C. 493; citing and following White v. Trustees, 6 Bing. 310; Osborn v. Cook, 11 Cush. (Mass.), 532; Hogan V. Grosvenor (10 Mete), 54; Can- ada's Appeal, 47 Conn. 450; Tilden V. Tilden, 13 Gray, 110. 248 LAW OF WILLS. sarv to a valid will, and the courts can not add to such requi- sites.^^^ It has been claimed that the word "attestation" implies that the subscribing witnesses must know the nature of the instru- ment which they attest/^^^ This meaning of the word "at- test" is not, however, the one usually accepted.'^^" Some doubt has been raised upon this point in Ohio by a recent decision of the Supreme Court. The Ohio statute does not expressly require publication, l)ut the court held that "one essential to the admission of a writing purporting to be a written will to probate is that it shall have been acknowledged by the maker as his will, and his signature acknowledged in the presence of two subscribing witnesses."^*^^ This is quoted from the syllabus, which under the rule in force in Ohio is "confined to the points of laAV arising from the facts of the cause that have been determined by the court."* In spite of this rule, analysis of this case shows that the syllabus is an ohiter dic- tum. The facts were that the witnesses signed a will before the testator signed it, and that they never saw him sign, or heard him acknowledge the will or his signature. Under the Ohio statute there was clearly no valid execution, irrespective of the question of publication, which question was not pre- sented by the record as necessary to the determination of the case.t Accordingly in a later Ohio case decided by a trial court, the court held that a will was valid where the testator signed in the presence of the subscribing witnesses, but did not notify them that the instrument was a will.^^^ In some other states it has been held that, even though the statute does not require publication, the attesting witnesses must be in- formed that the instrument is a will.^^^ 3S8"The legislature has prescribed 39i Keyl v. Feuehter, 56 O. S. such formalities as it dfeemed proper, 124. and we ought not to add to them * Rule VI. Rules of Supreme formalities by construction." Flood Court. V. Pragoff, 79 Ky. 007; quoted in fSee Sec. 222 3 92 wmiamson's Will, Allen V. Griffin, 69 Wis. 529. 6 Ohio, N. P. 79. 389 Roberts v. Welch, 46 Vt. 164. 393 Qdenwaelder v. Schorr, 8 Mo. 390 Canada's Appeal, 47 Conn. App. 458 ; Roberts v. Welch, 46 450; See Sec. 189. Vt. 164. (Compare Dean v. Dean, 27 Vt. 746. ) LAW OF WILLS. 249 It is well settled that the subscribing witnesses need not know the contents of the instruments^'* §228. Publication not a substitute for acknowledgment of signature. Publication is not a substitute for the acknowledgment of the signature by a testator who has not signed in the pres- ence of the attesting witnesses. Where the statute requires both, both must be done.^^^ It is possible, however, for one statement to constitute both acknowledgment and publication. Thus, where testator produces the instrument already signed, shows it to the witnesses in such a way that they can see his signature and declares that it is his will, such acts and decla- ration will constitute an acknowledgment of the signature and a publication of the wilL^*^^ But where, under similar circum- ' stances, the will is so presented to the witnesses that they can not see the signature of testator, such declaration is a good publication but not a good acknowledgment of the signature of the testator.s^'^ 304 Leverett v. Carlisle, 19 Ala. 306 Ludlow v. Ludlow, 36 N. J. 80; Barker v. Bell, 49 Ala. 284; Eq. 597; Baskin v. Baskin, 36 N. Grimm v. Tittman, 113 Mo. 56. Y. 416; Gilbert v. Knox, 52 N. 395Laing's Will, 17 N. J. L. J. Y. 125; In re Higgins, 94 N. Y. 266; Den v. Mitton, 12 N. J. L. 544; In re Phillips, 98 N. Y. 267; 70; Ludlow V. Ludlow, 30 N. J. In re Hunt 110 N. Y. 278. Eq. 597; Robbins v. Bobbins, 50 N. so- Lewis v. Lewis, 11 N. Y. 220; J. Eq. 742. Baskin v. Baskin, 36 N. Y. 418. 250 LAW OF WILLS. CHAPTER Xlll. EXTRINSIC ELEMENTS OF HOLOGRAPHIC, MYSTIC AND NUNCUPATIVE WILLS. PART I— HOLOGRAPHIC WILLS. §229. General nature of Holographic wills. The holographic or olographic will is a will written entirely by testator and signed by him.-^ It is valid where written by testator, even though the handwriting is disguised.^ It is a type of will which in the main originates in those states of the Union in which the Roman law was once in force. From these states it has been adopted by statute into other states. Its origin may also be found in the law of testaments in England before the legislation of this century added to the extrinsic elements of the will. The holographic will, arising from these two sources, is by statute merged into a common type, which is found, with slight variations, in about a third of the American states. The holo- graphic will is not different in its inherent elements from the formally executed wills. Xo set form of words is necessary 1 Pearson's Estate, 99 Cal. 30; Ann. 868: Wilborn v. Shell, 59 Soher's Estate, 78 Cal. 477; In re Miss. 205; Alston v. Davis, 118 N. Shillaber, 74 Cal. 144; 5 Am. St. Car. 202; White v. Helmes, 1 McC. Rep. 4.3.3; Toeble v. Williams, 80 430. Ky. 001 ; Baker v. Dobyns, 4 Dana, 2 Hannah v. Peake, 2 Mar. (Ky.), 221 ; Pobertson's Succession, 49 La. 133. LAW OF WILLS. 251 to express testamentary intent, but it must appear from the instrument that testator's intention was to make a testamentary disposition.^ If testamentary intent is plain on the face of the instrument it may be in the form of a letter, and need not term itself a will.^ Thus, an informal instrument reciting "This is to serifey that ie levet to mey wife Real and persnal and she to dispose for them as she wis" was held to be a valid holographic will.^ And. a clause in a letter, "If I should die or get killed in Texas the place must belong to you and I should not wish you to sell it" was held a good holographic will, although part of the letter in which this clause was found was not testamentary in its nature.** But where the instrument is a narrative of what dis- position testator intends to make, and not or itself purporting to dispose of his property, it is not entitled to probate as a will.'^ §230. Formalities of Holographic wills. The peculiarities of the holographic will lie entirely in the extrinsic elements of execution, attestation and the like. Witnesses. First. In most states the holographic will needs no wit- nesses as requisite to its validity.^ Tiandwriting. Second. The holographic will must be entirely in the hand- writing of testator, at least as to every part necessary to its 3/w re Spratt (1897), P. 28; 66 found that it was a will, and the L. J. P. D. & A. N. S. 25; 75 Law T. question of the admissibility of evi- Rep. 518; Mitchell v. Donahue, 100 dence was not passed upon by the Cal. 202 ; Pena v. New Orleans, 13 Supreme Court. La. Ann. 86; Morvaut's Succession, 6 Alston v. Davis, 118 N. Car. 45 La. Ann. 207; Alston v. Davis, 202. 118 N. Car. 202 7 Easton's Estate (D. C), 23 *In re Shillaber, 74 Cal. 144; Wash. L. Rep. 789. 5 Am. St. Rep. 433 ; Alston V. Davis, « Morris v. Morton, — Ky. — ; 118 N. Car. 202. 20 S. W. 287; and see the cases 5 Mitchell V. Donahue, 100 Cal. cited in this chapter. Mclntire v. 202. In this case the trial court Mclntire, 8 Maekey (D. C), 482. admitted evidence to the effect that • Contra, in Wyoming, Neer v. Cow- the paper was not intended as a hick, 4 (Wyom.) 49; 31 Pac. 862; will but as a certificate that the 18 L. R. A. 588. signer had made a will. The jury 252 LAW OF WILLS. validity. A will written on the printed form by filling in blanks is not a good holographic will f nor is a will a good holograph where written under a printed heading where the figures "189 — " were printed and testator completed the date by filling in the blank.^^ But the addition in the handwriting of an- other, of words which can be rejected, leaving the residue in the handwriting of testator a valid will, does not prevent the will from being a good holograph.^ ^ And, while the will must be written, it is proper to use figures instead of words to indicate the amount of the legacy, and the will is not thereby inval- idated.^^ As in other wills the writing may be in lead pencil.^^ Date. Third. It is generally provided that a holographic will must be dated. The date must show the year, month and day in order to make the will valid.^^ The date may appear any- where upon the will. It may appear at the beginning of the will or in the body of it,^^ or it may follow the signature of testator; ^^ and the fact that a hologTaphic will is composed of two parts each signed by testator, but the whole dated only once, does not raise a presumption that the two parts were written on different days.^''' Place of signature. If the statute specifically requires testator's signature to be placed at the end of the holographic will, a will headed with testator's name and entirely in his handwriting, but not signed by him at the end thereof, is invalid.^* Unless the statute specifically require it, the signature is not necessarily at the 9 Rand's Estate, 61 Cal. 468; Heffner v. Heftner, 48 La. Ann. Billing's Estate, 64 Cal. 427. 1088; Fuentes v. Gaines, 25 La. Ann. 10 Kobertson's Succession, 49 La. 85. -^^- 868. 15 Zerega v. Percival, 46 La. Ann. iiMcMichael v. Bankston, 24 La. 590. ■^^- ^^1- ^^ Fuqua's Succession, 27 La. Ann. 12 Vanhille's Succession, 49 La. 271. ^^"- lO''- i^Lagrave v. Merle, 5 La. Ann. 13 Philbrick v. Spangler, 15 La. 278. ^"- 4^- 18 Armani's Will, 43 La. Ann. 14 Martin's Estate, 58 Cal. 530; 310; 26 Am. St. Rep. 183. LAW OF WILLS. 253 end of the will, but may appear in the body of the will as well, if inserted there with intent to make such name a signature.-^ ^ But the insertion of testator's name in such place is an am- biguous act at the most, and is 'prima facie not a final signa- ture.^^ Xor is an endorsement by a testator named Roy on the back of his will "Roy's will" a sufficient signing where it does not appear from the will that testator intended such name as a signature.^^ While a holographic will does not need witnesses, the ad- dition of the names of witnesses to a holographic will does not thereby invalidate it as a holographic will.^^ On the other hand, a will which is entirely in the handwriting of testator and signed by him is a good holographic will, al- though an unsigned attestation clause follows his signature.^* §231. Place of deposit of Holographic will. In some states it is provided by statute that, in order to be valid, a holographic will must be found at testator's death among his "valuable papers ;" ^^ and in such jurisdictions when found among articles and papers of small value it is not a valid holographic will.^^ And' the sending of a letter con- taining holographic testamentary provisions to the person in- dicated therein as the beneficiary was a placing it in the hands of such person "for safe keeping" within the meaning of the statute.^® 19 Tate V. Tate, 11 Humph. So where testator thought that (Tenn. ) 465. witnesses were necessary to the va- 20 Ramsey v. Ramsey, 13 Gratt. lidity of the will. Toebbe v. Will- (Va.) 664. iams, 80 Ky. 661. 21 Roy V. Roy, 16 Gratt. (Va.) 24 Hughes v. Smith, 64 N. Car. 418. 493; Winstead v. Bowman, 68 N". 22 Langley V. Langley, 12 La. Rep. Car. 170; Hooper v. MeQuary, .5 114; Roth's Succession, 31 La. Ann. Coldw. (Tenn.) 129. 315; 38 La, Ann. 320; Brown v. 2-, Little v. Lockman, 4 Jones (N. Beaver, 3 Jones (N. Car.) 516. Car.) 494. 23 Allen V. Jeter, 6 Lea (Tenn.) 26 Alston v. Davis, 118 N. Car. 672; Perkins v. Jones, 84 Va. 3.58; 202. Hill V. Bell, Pliil. L. (N. CarO 132. 254 LAW OF WILLS. The fact that after testator's death attorney opened the en- velope in which the holographic will was sealed at the request of the custodian of such will, does not invalidate it.^^ PART II— NUNCUPATIVE WILLS AT COMMON LAW. §232. Definition and history of law of nuncupative will. The term nuncupative will at the Roman law denoted a will which Avas published orally in the presence of witnesses. It may be questioned if the term was originally used of oral wills. It is contended that the primary meaning was that of a written will published orally.^^ The nuncupative will at common law is a very different thing from the nuncupative will of Louisiana. At common law it is an oral testament made under such circumstances that it is en- forceable at law.29 What the circumstances are which make an oral will enforceable is the subject of discussion in the fol- lowing sections. At the common law, as we have seen, no will could be made whereby real property was devised before the Statute of Wills, except by special custom. The statement sometimes made, that at the common law no oral will of lands could be made is true, but as no written will could be made, either, it does not add much to the history of the oral will. The Statute of Wills pro- vided that lands might be devised 'by will and testament in writing.' ^o Under such statute there was no opportunity for an oral will ; and no land could, of course, be devised except by writing. But by special custom in some isolated cases land might pass by a nuncupative will at the common law. "In some cities and boroughs lands may pass as chattels by will nuncupa- tive or parol without writing." ^i 27 Stewart's Succession, 51 La. ally a testament, it Ts very gener- Ann. 1553. ally spoken of as a nuncupative 2s Maine's -Ancient Law, p. 212; will, and this term is accordingly Schouler on Wills, Sec. 361. here employed. While a nuncupative instrument 3o 32 Hen. VIII, C. 1. See Sec. 15 could not in most jurisdictions pass 3i Coke on Littleton, Sec. 1G7; realty, and therefore was technic- citing Britton, fol. 164, 212, b. LAW OF WILLS. 255 The ecclesiastical law, as we have seen, did not require any formalities in the execution of a testament passing personalty.^'^ It seems to be the general opinion of writers that originally the ecclesiastical law did not require the formality of writing in any case, but that nuncupative testaments were as valid for all purposes as written ones.^^ This was possibly a necessary rule of law in a community where but few could write. Any other rule would no doubt have resulted in almost universal intestacy. But as the act of writ- ing became generally known the ecclesiastical courts began to look with suspicion upon oral testaments, where no good reason existed for not having them in writing. The exact time at which this feeling of distrust developed into a rule of law for- bidding nuncupative testaments, except in certain cases, is hard to determine. It is generally placed from the reign of Henry VIIT to that of Elizabeth.^^ Other writers appear to take the view that a nuncupative tes- tament might be valid generally in the reign of James I. Thus, Swinburne said of nuncupative testaments merely: "This kind of testament is commonly made when the testator is now very sick, weak and past all recovery.^^ The Statute of Wills, 32 Hen. VIII, c. 1, did not affect testaments of personal property in any way; and the law de- veloped by gradually restricting nuncupative testaments to cases where the testator was in extremis, but not attempting to con- trol them further. The case of Cole v. Mordaunt, 4 Ves. 196, called the atten- tion of the public to the great danger of so lax a rule. In that case testator when advanced in years had married a young woman. Her conduct during her married life was imprudent if not depraved. He died leaving a written will by which a considerable part of his property was bequeathed to charitable purposes. The widow by subornation of perjury induced nine witnesses to swear that testator had made a nuncupative testa- 32 See Sec. 157. Hazelion, 20 Johns. (N. Y.) 502. 33 Kent's Commentaries, Vol. IV, 35 Swinburne, pt. 1, Seq. 12, par, p. 516. 1. 34 Perkins, See. 476 ; Prince v. 256 LAW OF WILLS. ment in extremis, hj which he revoked his written testament and bequeathed his property to his widow. The conspiracy failed, and the fictitious testament was defeated. At the hear- ing of this case Lord Nottingham made the famous remark, that it was his hope "to see one day a law, that no written will should ever be revoked except by writing." The next year was passed the Statute of Frauds, 29 Car. II, c. 3. The question as to who was the author of this famous statute is involved in much dispute ; but it seems extremely prob- able that Lord Xottingham's support greatly facilitated its pas- sage ; and that certain sections of that statute were formed to meet the case of Cole v. Mordaunt.^*^ 36 i>!) Car. II, C. 3. And for prevention of fraudulent practices in setting up nuncupative wills, which have been the occasion of much perjury, be it enacted by the authority aforesaid, that from and after the aforesaid four and twen- tieth day of June no nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three wit- nesses (at the least) that were present at the making thereof ; not unless it be proved that the testa- tor, at the time of pronouncing the same, did bid the persons present or some of them, bear witness that such was his will or to that ef- fect; nor unless such nuncupative will were made at the time of the last sickness of the deceased, and in the house of his or her habita- tion or dwelling or where he or she hath been resident for the space of ten days or more next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling. See. 20. And be it fiu'ther enact- ed. That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said tes- timony, or the substance thereof, were committed to writing within six days after the making of the said will. Sec. 21. And be it further enacted, That no letters testamentary or probate of any nuncupative will, shall pass the seal of any court, till fourteen days at the least after the decease of the testator be fully expired ; nor shall any nuncupa- tive will be at any time received to be proved unless process have first issue to call in the widow or next of kindred to the deceased, to the end that they may contest the same if they pleasa Sec. 2.3. Provided always. That notwithstanding this act, any sole heir being in actual military service, or any mariner or seaman being at sea, may dispose of his movables, wages and personal estate as he or they might have done before the making of this act. The Wills Act of 1837, 1 Vict. C. 2G, also provided for nuncupative testaments. LAW OF WILLS. ^^' These statutes have been reenacted with variations through- out the United States. Their general etiect is to forbid all oral testaments except such as are speciticallj provided for by the terms of the statute. The common law rules as to when an oral testament may be held valid are abrogated. The only effect of the old rules is to modify the construction of the statute m cer- tain cases. Since this is the case, any attempt to make an exact statement of the rules as to nuncupative testaments, which are in force in each jurisdiction, would be useless. The general provisions of the statutes are, however, substantially the same m England and the United States. The difference between the different statutes is that some statutes include more classes of nuncupative testaments than others. The provisions control- ling each class are substantially uniform. §233. Nuncupative wills made by testators of favored classes. The first classification in nuncupative wills is that of favored and unfavored classes of testators. Testators of the favored class may make nuncupative wills without regard to the sur- rounding circumstances or to the specific form of the will.^^ Soldiers and sailors. The first class of favored testators is composed of 'soldiers' and 'sailors' or 'mariners' in 'actual service,' and testators who dispose of estates below a certain value. A soldier is any person serving the government in a military capacity irrespec- tive of rank. In an English case, an army surgeon in the em- ployment of the East India Company was hold to be a 'soldier' within the meaning of the statute.^s g^ volunteers in the serv- ice of the government are 'soldiers'.^^ But between the time that a volunteer enters his name as offering his services to the o-overnment, and the time that he is formally accepted and mus- 37 In some jurisdictions these fa- 38 Goods of Donaldson, 2 Curt, vored classes do not exist. Since 386. nuncupative wills now exist only 39 Leathers v. Greenacre, 53 Me. where specifically allowed by stat- 561; Van Deuzer v. Gordon, 39 ute, these favorea classes have no . Vt. 111. existence where not created by stat- ute. 268 I^W OF WILLS. tered in, such volunteer is not a 'soldier' in the sense of the statute.'^ "^ Victual sendee' undoubtedly includes every military move- ment against the enemy. It begins at least upon entering the country of the enemy, or reaching the neighboi-hood of the enemy so that the army has begun the campaign.^^ It prob- ably begins upon the commencement of the movement which has for its object the attack upon the enemy, whether such move- ment is within or without the country of the testator and whether the army has reached the neighborhood of the enemy or not. Thus, it was held that the Union- army was 'in actual service,' in 1864 as soon as the movement on Eichmond began.^^ 'Actual service is not confined to "those excursions from camps and quarters in the enemy's country, which are designed to bring on an immediate engagement." '*^ Testators owning small estates. In some jurisdictions nuncupative wills were good to dis- pose of a limited amount of property.^ ^ Under this statute if a testator attempted to dispose of an indivisible chattel, such as a promissory note, the value of which was in excess of the amount fixed by law, the will was invalid as a whole,^^ while if the property given was divisible, it was good as to the amount allowed by statute.^ ^ §234. When nuncupative wills can be made by testators of un- favored classes. In jurisdictions where others than the especially favored classes are allowed to make nuncupative wills at all, these others are nearly always allowed to make them only in their 'last ill- 40 Pierce v. Pierce, 46 Ind. 86. 4* Mulligan v. Leonard, 46 lo. 41 Leathers v. Greenacre, 53 Me. 692. 561 ; Van Deuzer v. Gordon, 39 45 Strieker v. Oldenburgh, 39 lo. Vt. Ill; Gould V. Safford, 39 Vt. 653. 498. 46 Mulligan v. Leonard, 46 lo. 42Botsford V. Krake, 1 Abb. Pr. 692. N. S. (X. Y.), 112. 43 Leathers v. Greenacre, 53 Me. 561. LAW OF WILLS. 259 ness.' By 'last illness' is undoubtedly meant the illness of which testator actually dies. If he makes an oral will in what he thinks at the time is his last illness, and recovers therefrom, such will is invalid as not being made in the last illness of testator.^'^ These cases are chiefly obiter dicta upon this point ; but they seem to show the current of judicial opinion. A 'last illness' furthermore, is not merely a delicate physical condition in which death may at any time intervene as a re- sult of further development. Thus, where decedent was a con- sumptive, but Avas still able to go about, he was not in his 'last illness' in the sense of the statute so that he could make a nuncupative will even where he died on the following day of a sudden hemorrhage."^^ It is therefore an acute disease, or the last stage of a chronic disease in which it assumes the form in Avhich death directly ensues, that is meant by a 'last illness,' and not the entire duration of a progressive disease which ul- timately results in death.'*^ The discussion of the meaning of 'last illness' is complicated, as will be seen in the opinions of the court in the cases already cited, by the question whether a nuncupative will made by a testator in the acute disease from which death ensues is valid where the testator lived so long after making his nuncupative will that he could have made a written will had he so desired. Undoubtedly the provision of the statute allowing nuncupa- tive wills to be made in testator's last illness was meant only to prevent an enforced intestacy in cases where approaching death made it impossible to reduce testator's wishes to writing in legal form. But as the question in construing a statute is not what did the legislature mean to say, but what does it mean by what it has said, the question is really one of the meaning of the term 'last illness'. 47 Morgan v. Stevens, 78 111. 287; W. & S. (Pa.), 184. On this point Donald v. Unger, 75 Miss. 294; see O'Neil v. Smith, 33 Md. 569; Sadler v. Sadler, GO Miss. 251; Donald v. Unger, 75 Miss. 294; Carroll v. Bonham, 42 NS J. Eq. Harrington v. Stees, 82 111. 50. 625; Martinez v. Martinez, 19 Tex. 49 Donald v. Unger, 75 Miss. ■€94; Civ. App. 661 ; 48 S. W. 532. Carroll v. Bonham, 42 N. J. Eq. 48 Werkheiser v. Werkheiser, 6 625 ; Jones v. Norton, 10 Tex. 120. 260 LAW OF WILLS. Upon tliis question there is a difference of judicial opinion- In the majority of states it is held that the temi 'last illness' means an illness so violent that testator had not the time, op- portunity and means at hand, after making his oral will, to make a written will in legal form.^*' Thus, testatrix had been sick for two or three months. She gave verbal directions for the disposition of her property which were subsequently offered as a nuncupative will. She lived about ten days longer in possession of her faculties, with ample opportunity to make a written will. It was held that this will was not made during the 'last sickness' of testatrix within the meaning of the statute.^ ^ So where the evidence disclosed that after making a nuncupative will testatrix lived twenty hours in possession of her faculties, that she then became unconscious and died the following day, the trial court, on this point, charo-ed : "A nuncupative will must be made in the last sick- ness, and if you believe from the evidence that (the alleged testatrix) after making the alleged nuncupative will, had the time and opportunity and means at hand to have reduced it to writing, but failed to do so, then said alleged will is invalid." The Supreme Court, Lumpkin, J., said: "We think the charge actually given, is about as accurate and proper an in- struction as the court could well have given." ^^ In other states it is held that a will made during the 'last ill- ness,' as already defined, is a valid nuncupative will even though testator had opportunity after making such will, and before his death, to make a written will.^^ It is apparently not neces- 50 Johnston v. Glasscock, 2 Ala. point). Jones v. Norton, 10 Tex, 218; Scaife v. Emmons, 84 Ga. 120 ; Reese v. Hawthorne, 10 Gratt. 619; Ellington v. Dillard, 42 Ga. (Va.), 548. 361 ; Bellamy v. Peeler, 96 Ga. si Donald v. Unger, 75 Miss. 294. 467; O'Neill v. Smith, 33 Md. 569; 52 Bellamy v. Peeler, 96 Ga. 467. Donald v. Unger, 75 Miss. 294 ; 53 Bradford v. Glower, 60 111. App. Lucas V. Goff, 33 Miss. 629 ; Parki- 55 ; Harrington v. Stees, 82 111. son V. Parkison, 12 Smed. pative will, that it be reduced to writing and subscribed by ths requisite number of competent witnesses within the time fixed by statute, which is generally a very short one. Omission to comply with this provision renders the will a nullity.*^ Even if reduced to writing within the time limit, the will is avoide'l 78 Long V. Foust, 109 N. Car. so Vrooman v. Powers, supra. 114. 81 Vrooman v. Powers, supra. 77 Wester v. Wester, 5 Jones (N. 82 Askins's Estate, 9 Mackey (D. Car.) 95. C.) 12; Taylor's Appeal, 47 Pa. 78 Vrooman v. Powers, 47 0. S. St. 31; George v. Greer, 53 Miss. 191; Haus v. Palmer, 21 Pa. St. 495; Martinez v. Martinez, 19 Tex. 296; Baker v. Dodson, 4 Humph. Civ. App. 661; 48 S. W. 532. (Tenn.) 342. 79 Vrooman v. Powers, 47 O. S. 191. LAW OF WILLS. 267 if not also subscribed by the required number of witnesses with- in the time fixed by statute.^^ In view of the necessities of the case it is held that the exact words used bj testator need not be reduced to writing. It is sufficient if their substance can be thus reduced.^"* But if the words of testator are not reduced to writing, at least substan- tially, his will can not be probated,^^ and if probated can be contested on the ground of the failure to reduce the will sub- stantially to writing.®^ §240. What can pass by nuncupative will. Under a few of the earlier statutes real as well as per- sonal property might pass by a nuncupative will.®^ In most states it is provided that real property can not pass by a nuncu- pative will;^^ nor can the income of realty be devised by a nuncupative will.^^ It has been held, however, that a nuncupative will may give a legacy chargeable on realty.*^" But it is held that a nuncupa- tive will of all the property which testator owned, will pass the personal property, though not the realty ; and where the debts are equal to the personal estate, that such will can charge the payment of testator's debts upon the realty, exonerating the personalty.^^ 83 Welling V. Owings, 9 Gill. Mich. 438; Sadler v. Sadler, 60 (Md.) 467. Miss. 251; Smithdeal v. Smith, 84Bolles V. Harris, 34 O. S. 38. 64 N. Car. 52; Skinner v. Black- 85 Bolles V. Harris, supra. burn, 4 Ohio C. C. 325 ; Cooper v. 86 Bolles V. Harris, supra. Pogue, 92 Pa. St. 254 ; 37 Am. Rep. S7 Gillis V. Weller, 10 Ohio, 462: 681; Johnson v. Johnson, 92 Tenn. Ashworth v. Carleton, 12 Ohio St. 559; Lewis v. Aylott, 45 Tex. 190; 381. Moffett V. Moffett, 67 Tex. 642; But this has since been changed Page v. Page, 2 Rob. (Va.) 424; in Ohio by statute. R. S. of Ohio, Davis's Will, 103 Wis. 455. Sec. 5991. 89 Page v. Page, 2 Rob. (Va.) 8s McLead v. Dell, 9 Fla. 451 ; 424. Pierce v. Pierce, 46 Ind. 86 ; Cooke "o Seever v. Seever, 2 Ohio V. Cooke, 3 Litt. (Ky.) 238; Palmer C. C. 298. V. Palmer, 2 Dana. (Ky.) 391; si Skinner v. Blackburn, 4 Ohio McCans v. Board, 1 Dana. (Ky.), C. C. 325. 341: Campbell v. Campbell, 21 268 i^w OF WILLS. PART Ill-NUNCUPATIVE TESTAMENTS AT LOUISIANA LAW. §241. Nuncupative testaments by public act. In Louisiana the expression 'nnncupative testament' is al- ways used by the statute. A nuncupative testament in Louisiana is a very different thing from a nuncupative will at common law, as in Louisiana it is of two kinds, nuncupative testament by public act, and nuncupative testament by private act. They may be best defined separately. A nuncupative will by public act is one dictated by testator to a notary public, and written down by him from such dicta- tion. This must be done in the presence of three witnesses re- siding in the place where the will is executed, or of five not residing in such place. It must be read to testator in the pres- ence of the witnesses, and testator must in their presence de- clare that he understands it perfectly, and that he persists therein. ^^ A will is not invalidated by the fact that the notary omitted to record his bond in the auditor's office, a fact which was ground for suspension, when he was not in fact suspended.^^ It is sufficient if the notary takes do^vn the substance of the will as dictated to him. He must "put doAvn all of her inten- tions expressed by her, with a due regard to identity of thoughts, and not of words." ^"^ And if the notary suggests the appropriate language in which to express the intent of testator, it does not invalidate the will.^^ So if counsel suggests expressions un- derstood and adopted by testator, the will is valid.^*^ 92 La. Code 1808, p. 288, art. 92; Ann. 1376; Saiix's Succession, 46 Civ. Code-La. 1571: Monroe v. La. Ann. 142.3. Liebman, 47 La. Ann. 1.55. »6 Landry v. Tomatis, 32 La. 03 Monroe v. Liebman, 47 La. Ann. 113. So if the notary ques- Ann. 155. tions testator to discover his ex- 94 Cauvien's Succession, 46 La. act meaning. Saux's Succession, Ann. 1412. 46 La. Ann. 1423. 95 Ilennessv v. Woulfe, 49 La. LAW OF WILLS. 269 The addition by the notary of an omitted word on the margin of the will does not invalidate the will, where such word may be rejected and the will is clear without it.^^ The will must then be signed by testator if he can write. If he can not, the notary certifies such fact, and signature or mark by testator is then un- necessary.^^ The will must be signed by the witnesses, or at least one for all, if the others can not. Express mention must be made in the will by the notary of the performance of these necessary acts.^^ The notary's certificate must show the presence of witnesses when the will was dictated ;^*^'^ and that it was written down by the notary from dictation ;^^^ and the reading of the will in the presence of witnesses ;^^^ and the facts that constitute com- petency of the witnesses.^ "^ But it does not have to show af- firmatively that the witnesses were not disqualified, as being women, children under sixteen, insane and the like.^^^ All this must be done at one time, and without turning aside to any other act ; but this fact does not have to be certified in the will, but its absence is a matter to allege and prove in order to set the will aside. ^^^ Where the notary interrupted the execution of the will to insist that the mtnesses should remain in the room till the will was executed, this was held not to be a turning aside to another act.^^*' The fact of signature of the will need not be stated in the certificate.^ '^''^ 97 Diipuy V. Esnard, 51 La. Ann. Ann. 593 (not simply hia opinion 797. and legal conclusion that they were 98 Hennessy v. Woulfe, 49 La. 'competent' ) . Ann. 1376. io4 Marquez's Succession, 50 La. 99 Civ. Code. 1578; Dalton v. Ann. 66; Del Escobal's Succession, Wickliffe, 35 La. Ann. 355; Dor- 42 La. Ann. 1086; 9 L. R. A. 829. ries's Succession, 37 La. Ann. 833. los Featherstone v. Robinson, 7 100 Connor v. Brashear, 25 La. La. 596 ; Keller v. McCalop, 12 Rob. Ann. 663; Wilkin's Succession, 21 638; Saux's Succession, 46 La. La. Ann. 115. Ann. 142,'}. 101 Miller v. Shumaker, 42 La. iog Depuy v. Esnard, 51 La. Ann. Ann. 398. 797. 102 Wilkin's Succession, 50 La. 107 Saux's Succession, 46 La. Ann. 115. Ann. 1423. 103 Voilmer's Succession, 40 La. 270 LAW OF WILLS. §242. Nuncupative testaments by private act. A nuncupative will by private act is one written either by testator or by some one else at his dictation in the presence of five witnesses residing in the place where the will is made, or of seven residing elsewhere ; or by testator's presenting to the above number of witnesses his will written out of their pres- ence and declaring it to be his last will.^^* This will must then be read to the witnesses by testator or by one of the wit- nesses ; and must be sigTied by testator if he can write ; and by the witnesses, if they can write. At least two of them must write their names and the others must sign by mark.^^^ The amanuensis may act as one of the witnesses.-' ^^ The declaration that it is testator's will may be made in- formally. Thus, where the amanuensis reads the paper and then says to testator : "Is this paper that has just been read your will ?" and the testator rays : "It is," this is a good declaration by him that it is his will.^^^ Publication is all that is necessary where the will is written out of the presence of the witnesses. It need not be shown whether testator wrote it or dictated it.^^^ A witness who can not understand the language in which the will is written, and is read, is not a competent witness to such a will ; and the fact that the will was translated to him by an in- terpreter does not render him competent. ^^"^ PART IV— MYSTIC TESTAMENTS. §243. Mystic testaments. A mystic will is one which is sigTied by testator, whether written by himself or another, which is then placed in a paper 108 Civil Code, Sec. 1574. 112 Pfarr v. Belmont, 39 La. Ann. 109 Civil Code, Sec. 1576. 294. 110 Wood V. Roane 35 La. Ann. ii3 Dauterive's Succession, 39 La. 865. Ann. 1092. 111 Bourke v. Wilson, 38 La. Ann. 320. LAW OF WILLS. 271 or envelope This paper or envelope is then closed and sealed ; and si ; closed"d sealed is presented to the notary and o sev n witnesses, unless the act of enclosing and sealmg was do^ in their presence. Testator then declares to the nota^ in the presence of the witnesses that the paper contains Ins estament, written by himself or by another at his direction and si W by him, the testator. The notary must then dra.v up tlie^ act of superscription upon the paper or envelope m which the testament is enclosed, which act is to be signed by testator, notary and the witnesses.^^^ The act of ;uperscription must recite the facts necessary irn^ der the statute to the validity of the mystic ^^all. Thus, i± it does not show testator's declaration that the wi 1 was signed by him and written by him, or by another by his direction or if it does not show that it was presented to the notary or closed or sealed by testator,^^^ the will is invalid. While the will must be "sealed" the use of a wax seal is not imperative. The sealing may be done with wafers. So the use of an ordinary mucilaged envelope is a compliance with the statute.^ ^^ 114 Civ. Code La. Sec. 1584. iisBroutin v. Vassant, 2 Martin, 432; Lewis v. Lewis, 5 Louisiana Reports, 387. 116 Stafford v. Villain, 10 Louis- iana Reports, 319. iiT Hart V. Thompson, 15 Louis- iana Reports, 88. (In this case the witnesses signed their names across and between the wafers, so that it was difficult to open the wiil unobservedly. ) 118 Saint V. Charity Hospital, 48 La. Ann. 236. (In this case the superscription was written across the flap of the envelope where it adhered to the paper.) 272 LAW OF WILLS. CHAPTER XIV. REVOCATION. §244. Nature of revocation and history of doctrine of revoca- tion. As we have seen already^ revocabilitj is an inherent and essential element of a will, without which the instrument in question can not properly he classed as a will. Revocation is avoiding, and invalidating an instrument, which but for revocation would have been the last will and tes- tament of the party by whom it was executed. A revoked will is of no legal effect whatever. It can not be used as a method of transferring testator's property to the beneficiaries named therein,^ and it has been held that a revoked will can not be used as a written declaration of a trust.^ A revoked will may, however, be used as evidence of a contract to make a will, if its contents show such contract."* The Statute of Wills contained no provisions on the subject of revocation. The courts proceeded to build up a set of rules partly based on the ecclesiastical law, and partly by pure ju- dicial legislation. These rules had for their general founda- tion the theory that the intention of the testator to re- 1 See Sec. 50. ^ Davis v. Stambaugh, 163 111. 2 This elementary proposition is 557. sustained by any of the eases of * See Sec. 74. revocation cited in the following sections. LAW OF WILLS. 273 voke should be given effect hj tlie courts, and that the form of the revocatory act was immateriaL It was accordingly held that the declaration of testator that he regarded his will as revoked, would be sufficient to effect a revocation.^ Thus, where devisee prevented testator from destroying his will by falsely and fraudulently represent- ing it to be destroyed, it was held that testator's intention and declarations operated as a revocation.^ This laxity of judicial view had its natural result in bold attempts to defeat wills by fabricating evidence of the declarations of testator. The history of one of the most glaring of these conspiracies is given in a note to Mathews v. Warner,'^ This particular attempt to defeat justice met with disastrous failure; but the wish already quoted that there should some day be "a law that no written will shall be revoked but by a writ- ing " was entertained by the whole English bar ; and soon found expression in the Statute of Frauds.^ This statute has been 5 6 Cruise's Dig., 79 tit. 38, c. 6, Sec. 2; Burton v. Gowell, Cro. Eliz, pt. 1, 306; Ash v. Abdy, 3 Swanst. 664; Matthews v. Warner, 4 Ves. Jr. 186, note; Card v. Grin- man 6 Conn. 164; Prince v. Hazle- ton, 20 Johns. 502; Clark v. Eborn, 2 Murph. (N. C.) 234. " Card V. Grinman, 5 Conn. 164, "• Mathews v. Warner, 4 Ves. Jr. 180, and see Sec. 232. S29 Car. II, c. 3, Sec. 6 (wills) ; Sec. 22 (testaments). See. 6. And moreover, no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June be revocable, otherwise than by some other will or codicil in writ- ing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the testator himself, or in his pres- ence and by his directions and con- sent; but all devises and bequests of lands and tenements shall remain and continue in force, until the same be burnt, cancelled, torn or obliterated by the testator or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing, of the devisor, signed in the presence of three or four witnesses, declaring the same; any former law or usage to the con- trary notwithstanding. Sec. 22. And be it further en- acted. That no will in writing con- cerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise or be- quest therein be altered or changed by any words, or by will, by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him and proved to be done by three witnesses at the least. 274 LAW OF WILLS. copied with variations in every American state. While different in detail, these statutes agree in this: that apart from the methods of revoking a written Avill laid down by the statutes, no revocation is possible. Accordingly, the mere wishes and declarations of testator can never effect a revocation,'^ no matter how clear may be testator's intention to revoke his will.^° So where a testator declared his intention to execute certain convey- ances of his real estate, and then revoke his will, but he never in fact did so, his will was held not to be revoked by such state- ments of his intention.^ 1 But a verbal agi-eement made between testator and a beneficiary under his will that in consideration of a provision in the will for such beneficiary the latter would pay a certain sum to a third person, is a valid contract enforce- able at law, and not an attempt to revoke the will by parol evidence.^ ^ These statutes, however, prescribe formalities only for revoca- tion by act manifest on the will. They do not affect the other classes of revocations, as by later instrument, by alteration of testator's estate, and by change of circumstances.^^ §245. Classes of revocation. At modern law the methods of revocation may be grouped under four general classes. The first two of these classes re- 9 Atkinson v. Morris, (1897), P. Boylan ads. Meeker, 4 Dutch. 274; 40; Slaugliter v. Slaugliter, 81 Ala. Sliaw v. Shaw, 1 Dem. 21; Coe v. 418 ; Barnewell v. Murrell, 108 Ala. Kniffen, 2 Johns. 31 ; Dan v. Brown, 366; Taylor v. Cox, 153 111. 220; 4 Cow. 483; McCune v. House, 8 Kent V. Maliaflfey, 10 0. S. 204, Ohio 144; Boudinot v. Bradford, 2 and see Sec. 255. Dall. (Pa.) 266 ; 2 Yeates (Pa.) 170; 10 Taylor v. Pegram, 151 111. 106; Clark v. Morrison, 25 Pa. St. 453; Belshaw V. Chitwood, 141 Ind. 377 ; Kirkpatrick's Will, 96 Tenn. 85; Woodfill V. Patton, 76 Ind. 575; Greer v. McC-ackin Peck (7 Tenn.) Forbing v. Weber, 99 Ind. 588; 301; Allen v. Huff, 1 Yerg. (9 Sneed v. Ewing, 5 J. J. Marsh. Tenn.^ 404; Marr v. Marr, 2 Head (Ky.) 459; Herbert v. Long, 15 (Tenn.) 303; Allen v. Jeter, 6 Lea Ky. Law Rep. 427; 23 S. W. (Ky.) (Tenn.) 672. 658; Collagan v. Burns, 57 Me. nBelshaw v. Chitwood, 141 Ind. 449 ; Succession of Hill, 47 La. Ann. 377. 329; Byers v. Hoppe, 61 Md. 206; i2Lawrence v. Oglesby, 178 111. Sewell V. Slingluff, 57 Md. 537; 122. Brewer v. Barrett, 58 Md. 587 ; is See Sec. 262 et seq. 276 LAW OF WILLS. voke the will by reason of the actual intention of the testator to do so, accompanied by the required legal formalities, ihey are '11 (1) The doing of some specified act manifest on the will, with the intention of revoking the sajne. (2) Revocation of a will by a later will, codicil or other m- strument. i j? ^i The two remaining classes revoke the will m disregard of the actual intention of the testator, and sometimes m defiance ol it. Tbey are often spoken of as revocation by operation oi law. They consist of : (3) Certain specified changes in the domestic relations ot testator, and (4) Alterations in the estate of testator. §246. Revocation by means of acts manifest on the face of the will. The acts, manifest on the face of the will, which may re- voke the will, may, under modern statutes, be one or more of the following: burning ,tearing, cancelling, obliterating or de- stroying Not all of these are included in every statute, can- celling bein,- the one most frequently omitted. As the statutes generally provide that a will shall not be revoked in any method except as therein provided, the omission from the statute of any one of these methods generally makes it impossible to revoke a will bv such omitted methofl. However, as will appear from a discussion of the meanings of the separate terms, the courts do not distinguish sharply between these methods, and often class under one heading facts which might seem appropriately to belong under another. §247. Act manifest on instrument. — Burning. The act of burning must at least consist in burning a por- tion of the paper upon which the mil is written, so that such burning is visible. It is not necessary that any part of the writing be burned or rendered .illegible, but the mark of fire must appear upon the paper itself.^ ^ i4Bibb V. Thomas, 2 W. Bl. quoted ease the testator crnmple^ 1043. In this celebrated and most the ^^^ll up so as to tear it slight- 276 LAW OF WILLS. Where the envelope in which the instrument is contained is burnt, but the will itself is untouched, this is not burning the will in compliance with the statute.^ ^ And where the will is not touched bv fire, but another paper is burned by mistake, this is not a burning within the meaning of the statute. This is true even where the mistake of testator was caused bj the fraud and deceit of other persons who represented to him that the palmer burned was his will.^^ §248. Tearing. Tearing the paper or parchment on which the will is written with intention of revoking the will, is, by the terms of these statutes, a revocation. As has been often said, tearing in the Wills Act includes cutting.^ ^ Any act of tearing which is manifest upon the paper on which the will is written, how- ever slight it may be, is an act of tearing within the meaning of the statute, if done with the intention of revoking the will.^^ This is equally true whether a necessary part of the will is torn off, like the signature of testator or of witnesses,^ ^ ly and tlirew it on the fire where it was scorched. It was surrep- titiously removed without his knowledge before it burned. It was held that this amounted to a revo- cation. Another case in point is White V. Casten, 1 Jones's Law (X. Car.) 197. 15 Doe d. Read v. Harris, 6 Ad. & El. 209 ; 33 E. C. L. 57 : 8 Ad. & El. 1; 35 E. C. L. 290; 1 N. & P. 405; W. W. & D. 106; 6 L. J. K. B. 84. 16 Graham V. Burch, 47 Minn. 171; Mundy v. Mundy, 15 N. J. Eq. 290; Kent v. Maffey, 10 O. S. 204; Clingan v. Micheltree, 31 Pa. St. 25; Hise v. Fincher, 10 Ired. (N. C.) 139. Contra, Pryor v. Coggin, 17 Ga. 444; Smiley v. Gambill, 2 Head (Tenn.) 164. 17 Goods of Harris,- 3 Sw. & Tr. 485; 10 Jur. (X. S.) 684; Hobbs V. Knight, 1 Curt. 768; Clarke v. Scripps 2 Rob. 563; Goods of Marshall, l7 W. R. 687 ; Maynes v. Hazleton, 44 L. T. 586; 45 J. P. 816; Brown's Will, 1 B. Mon. (Ky.) 56; Smock v. Smock, 3 Stock. (N. J.) 156. 18 Bibb V. Thomas, 2 W. Bl. 1043; Sanders v. Babbitt, Ky. (1899) 51 S. W. 163; Evan's Ap- peal, 58 Pa. St. 238. 19 Maynes v. Hazleton, 44 L. T. 586; 45 J. P. 816; Goods of Mar- shall, 17 W. R. 687; Goods of -Le\vis, 1 Sw. & Tr. 31; 27 L. J. P. 31; 4 Jur. IST. S. 243; Youse v. Foreman, 5 Bush (Ky.) 337; Sanders v. Babbitt. Ky. 1899; 51 S. W. 163; 21 Ky. L. R. 240; White's Will, 25 N. .J. Eq. 501; Smock V. Smock, 3 Stock. (N. J.) 156; Jones's Estate, 2 Ohio N. P. 209. LAW OF WILLS. 277 or a part of the dispositive part of the will, leaving the res - due •- or whether tears are made in the paper on which the will t written withont taking away any of the words -or whether an unnecessary part of the will is torn away, such as a seal tlere a will need not be under seal,- or unnecessary signatures from separate sheets.^' Where testator has scratched ou an Lntiafpart of the will by means of a hnife, this has been held to be a revocation on the theory that it is a lateral cutting."^* §249. Cancelling. Cancelling originally meant drawing crossed lines upon the paper! so as°to deface the writing thereon.- The court, have held that this original meaning is too narrow for the sense of the statute.=^« Under the view of modern law a will may be cancelled by drawing an ink line through sufficient words 20 Brown's Will, 1 B. . Mon. (Ky.) 56; Varnon v. Varnon, 67 Mo. App. 534. 21 Goods of White, 3 L. R. Ir. 413; Evan's Will, 58 Pa. St. 238. 22 Price V. Price, 3 H. & N. 341 ; 6 W. R. 597; Avery v. Pixley, 4 Mass. 460; White's Will, 10 C. E. Gr. (N. J.) 501; Johnson v. Brails- ford, 2 Nott & McC. (S. Car.) 272. 23 Williams v. Tyley, Johns. 530; 5 Jur. (N. S.) 35; 7 W. R. 116; Goods of Harris, 3 Sw. & Tr. 485; 10 Jur. N. S. 684. 24 Goods of Morton, 12 P. D. 141; 56 L. J. P. 96; 51 J. P. 580. 25 Warner v. Warner, 37 Vt. 356. 26 "The statute does not declare what shall amount to cancella- tion. The word is not a technical one and therefore the legislature must be presumed to have used it in its ordinary and commonly un-. derstood sense. It amounts to nothing to show what the original etymological meaning of the word 'cancel' was. Long before the statute was passed it had ac- quired an accommodated meaning plain to the common understand- ing. . . Revocation by ca-ncella- tion is not then to be understood to mean exclusively drawing crossed lines upon the paper, but it means any act done to it which in common understanding is re- garded as cancellation when done to any other instrument." Evan's Appeal, 58 Pa. St. 238. "In its primal significance the word means a lattice work. As ap- plied to writings it means the nul- lification of a writing by drawing upon its face lines in the form of lattice-work, "criss-cross." Usually, in legal as well as in common ac- ceptance, cancellation is accom- plished by the drawing of any lines over or across words with the intent to nullify them. It is common business practice to can- cel negotiable instruments and 278 LAW OF WJLLS, thereof with intent to revoke,-"^ or by drawing lead pencil lines.^^ In England drawing a lead pencil line through a will written in ink has always been held to be prima facie a delib- erative act, and not a finality, and hence not a revocation.-'' In some English cases, where the signature of a witness was cancelled, a fac-simile probate was ordered.^° Erasure of the words of a will, when done with intent to re- voke, may constitute a cancellation f^ and tearing off an unnec- essary seal, with part of testator's signature, and erasing the r^t of testator's name and the names of the witnesses, has been called a ''cancellation. "•"- r In a recent California case^^ testator, made a will, in 1893, which he enclosed in an envelope. On his death there was found written on this envelope, in the handwriting of testator : " July 4. — ]\rake over ;" on the other side of the envelope was, " This has not been renewed up to this 15th day of October, 1895. Neglected it, thinking I would sell something." Testa- tor's seven sig-natures on margin of .each page and at foot of will were cancelled by two ink lines drawTi through the length of each. On the last page, under signature of wat- otlier written contracts by draw- ing such lines through the signa- tures of the makers. Such was the method adopted in this case. It is a well recognized method, as has been said, and one clearly within the letter and spirit of the statute." Olmstead's Estate, 122 Cal. 224. 27 Goods of Harris, 3 Sw. & Tr. 485; 10 Jur. (N. S.) 684; In re Godfrey, (1893), 1 Rep. 484; 69 Law. T. 22; Olmstead's Estate, 122 Cal. 224: Glass's Estate, (Colo. App. 1900), 60 Pac. 186; Succession of Batchelor, 48 La. Ann. 278 V Miih's Succe^ssion, 35 La. Ann. 394; Danimann v. Dani- mann- (Md.), 28 Atl. 408; Bige- low V. Gillott, 123 Mass. 102; Baptist Church v. Robbarts, 2 Pa. St. 110; Evan's Appeal, 58 Pa. St. 238; Kirkpatrick's Will, 7 C. E. Gr. 463. 28 Townshend v. Howard, 86 Me. 285; Tomlinson's Appeal, 133 Pa. St. 245. 29 Francis v. Grover, 5 Hare 39; 15 L. J. Ch. 99; 10 Jur. 280. 30 Goods of Smith, 3 Sw. & Tr. 589; 10 Jur. (N. S.) 1243; 34 L. J. P. 19; Goods of Raine, 34 L. J. P. 125; 11 Jur. (N. S.) 587. 31 Goods of Morton, 12 Prob. Div. 141; 56 L. J. P. 96; 51 J. P. 580; Miles's Appeal, 68 Conn. 237. 32 White's Will, 25 N. J. Eq. 501, citing Avery v. Pixley, 4 Mass. 460; Hobbs v. Knight, 1 Curteis 768; Goods of James, 7 Jur. N. S. 52; Price v. Powell, 3 H. & N. 341; Smock v. Smock, 3 Stockt. 156. 33 Olmstead's Estate, 122 Cal. 224. 279 LAW OF WILLS. nesses, was written by testator: "Owing to the depreciation in my property I will make a new will." Some of the clauses were cancelled by ink bnes dra™ the Ml length of every line, and by cross lines extending from t«p to bottom. Several changes were made m amonnt of e^acies Testator had often, and within fifteen days of h dt;, declared that he had made an iron-clad w.l that conUl not be broken. The Probate Court found as a fact that he in- tended to cancel his will, and on this record the Supreme Court affirmed decision. , Drawing an ink line through an indorsement, "last will and testament " upon the envelope in which the will was contained^ and writing "superseded by a later will," does not of itself constitute a cancellation of tlie will;" nor does a change of the date of the will.'' , . , ,, „,j In some cases wills have been presented on which the word "cancelled" was written by testator with the intention of re- voking it, and the question is presented if this is a cancellation withi^ the meaning of the statute. The decisions are reconcil- able, though not reconciled by the courts. Where the word is written across the writing on the face of the will it is held to amonnt to a cancellation. "A repeal is effected by the act of writing upon the will itself a word that manifests an intention lo annul it."'" ^ ^. In an earlier Pennsylvania case" the testator wrote tvpon he margin of the will, so as not to cover any of the writing, the ^ n „ rorthwaite 2 So in Goods of Harris, 3 Sw. & 3*Grantley v. Garthwarte, ^r. 485; 10 Jur. (N. S.) 684, a will Kuss. 90. „ T i* SpI was found with the signatures cut 3.Averal v AveraU, L,t. Sel. was^^^^_^ ^^^ ^^^^ ^^^ ^^_^^^_ ^,^^ '''^Evan: Estate, 58 Pa. St. «-' ^'^"f '^ ^ "' U ^1:1^' .38, Citing ana toUowing Warner ^J^- ^j "H'"^: rsTLt'- V. Warner, 37 Vt. 356; so Mrkpat- Canoe, ed, A^ ,__^^^ ^^_^^ ^^^^ the word 'cancelled' as a cancella- tion. 280 LAW OF WILLS. word "obsolete." This was held not to revoke the will. This case was distinguished in Evans' estate, supra, upon two grounds : first, that the word "obsolete" did not necessarily im- port a revocation, while the word "cancelled" did; second, that in the early case the word did not cover any of the writ- ing of the will, thus appearing as a memorandum on the mar- gin, while in the later case it covered the writing, and appeared more as an intended cancellation. In a later Wisconsin case^^ testatrix wrote on the back of the fourth page of her will: "I revoke this will." This was signed by testatrix, but not witnessed. The entire will was writ- ten on the first page, so that the sheet of which the third and fourth pages consisted formed a cover to the will. It was held that these words did not constitute a cancellation, and the court,, while liolding that, while on the facts it might be distinguished from Warner v. Warner and Evans' Estate, and be classed with Lewis V. Lewis, preferred to decide upon the theory that the former cases named were incorrectly decided. In some jurisdictions the statute on the subject of "Revoca- tion" omits the word "cancellation." In such jurisdiction?;, drawing lines through words do not effect a revocation ; not be- cause it is not a cancellation, but because cancellation alone does not revoke under these statutes.^^ The effect of the par- tial destruction of a will which is sometimes spoken of as can- cellation is discussed under "Partial Revocation." "^^ §250. Mutilation. Where the statute provides that if a will is "mutilated" with intent to revoke it, such will is revoked ; drawing pencil lines across the signature, so as to deface, but still leaving the signature legible, was held to constitute a "mutilation. "^^ 88 Ladd's Will, 60 Wis. 187. Lovell v. Quitman, 88 N. Y. 377; 39 /» re Godfrey (1893), 1 Rep. Law v. Law, 83 Ala. 432. 484 ; 69 L. T. 22 ; Bethell v. Moore, 4o See Sec. 254. 2 Dev. & B. 311: Ladd's Will, 60 « Woodfill v. Patton, 7G Ini Wis. 187; Gay v. Gay, 60 lo. 415; 575. Grace v. Association, 87 Wis. 562; LAW OF WILLS. 281 j251. Obliterating. Under some statutes obliteratiiig a will, with the intention of revoking, will operate as a revocation. But elsewhere, by stat- ute, obliteration has been withdrawn from the methods of re- voking a M'ill, and the will as originally executed must be ad- mitted to probate, if it is possible to distinguish the original words, unless it was re-executed or re-published subsequently to the alteration.'*^ Where such provisions are contained in the statute it is held that if an expert can, with the help of a microscope, decipher the writing, as it stood before alteration, such writng as it stood is "apparent" within the meaning of the statute and must be regarded as part of the will.'*"* But where the writing of a material part of the will is so obliterated as to be illegible, it may be regarded as a "destruction," and hence a revocation.'*^ §252. Destruction. The destruction of a will by testator, with intent of revoking it, operates as a revocation under all the codes, and needs no further discussion where the destruction is actual and total. The doctrine of constructive destruction, however, is one of con- siderable importance, especially in jurisdictions where the stat- ute on the subject of revocation omits the methods of cancel- lation, obliteration and the like, referred to in this chapter. In some jurisdictions it is held that the word "destroy" includes burning, tearing, cancelling and the like. "A will burnt, can- celled, or torn, animo revocandi, is destroyed,"^^ and, con- 43 Ffinch V. Combe (1894), P. lined and crossed out a considerable 191 ; Goods of Godfrey, 69 L. T. 22 ; part of the will and wrote upon the Pringle v. McPherson, 2 De S. (S. will "I think my will at this time Car. ) 524. unequal ; with God's permission I 44 Brasier's Estate (1899), P 36; mean to alter it," etc. This was 68 L. J. P. D. & A. , N. S. 6. held to amount to a "destruction." 45 Goods of Morton, 56 L. J. P. But while this is true, where the 96; 51 J. P. 680: Goods of James, burning and the like aflfect substan- 7 Jur. (N. S. ) 52. tially the whole will, it is, as a gen- 46 Johnson v. Brailsford, 2 Nott eral statement, somewhat more ex- & McC. (S. Car.) 272. In this case treme than is warranted by the ad- the testator tore off the seals, inter- judicated cases. 282 LAW OF WILLS. versely, the words "burning, tearing, cancelling, or obliterat- ing" in the statute were held to be included and summed up in the word "destroyed,""*'^ Tearing a will "into fragments is un- questionably destruction," eyen though the fragments are not destroyed.^* So apparently is tearing or burning an essential part of the will, such as testator's signature.*^ So is such cancel- lation or obliteration of an essential part of the will as makes it impossible to decij)her the original writing, or "entirely ob- literates" it.^*^ But anything short of this, such as a cancellation or partial erasure, which leayes the original writing legi- ble, is not a destruction within the meaning of the statute.^^ Thus, drawing a pen through part of the will, writing upon it, "This is revoked," and throwing it away, was held not to amount to "otherwise destroying" it within the statute.^^ Still less does an intention to destroy not manifest by any act upon the will, but by some extrinsic act, such as throwing the will among waste j^apers and intending to destroy it after- wards, amount to a destruction.^^ The destruction of a docu- ment which was by reference incorporated in the will does not operate as a reyocation of the will.^^ §253. Destruction of duplicate will. Where a will has been executed in duplicate, the destruction by testator of that copy which he retains in his possession, with intent to revoke the will, operates as a reyocation. * 47 Barksdale v. Davis, 114 Ala. GG : 2 Prob. Div. 251; 25 W. R- 623; 22 So. 17. 853; Law v. Law, 83 Ala. 432; Gay 48 Evan's Appeal, 58 Pa. St. 244. v. Gay, GO lo. 415; Lovell v. Quit- 49 Goods of Gullon, 1 Sw. & Tr. man, 88 N. Y. 377. 31 ; 4 Jur. (N. S.) 243; Gay v. Gay, 52 Cheese v. Lovejoy, 46 L. J. P. 60 lo. 415. 66; 2 P. D. 251; 25 W. R. 853. 50 Goods of Morton, 56 L. J. P. ss Cheese v. Lovejoy, 46 L. J.. P. 96; 51 J. P. 680; Goods of James, 66; 2 Prob. Div. 251; 25 W. R. 853; 7 Jur. (N. S.) 52, obiter; Gay v. Blakemore's Succession, 43 La. Ann. Gay, 60 To. 415, citing Hob- 845; Succession of Hill, 47 La. bes V. Knight, 1 Curt. 779; Ann. 329; Hoit v. Hoit, 63 N. H. Price V. Powell, 3 H. & N. 341 ; In 475 ; Fellows v. Allen, 60 N. H. 439. re Harris, 3 S. & T. 485; Goods of 54 /„ re Coyte, 56 L. T. 510. Gullan, 1 S. & T. 23 ; Goods of Cole- * Paige v. Brooks. 75 Law T. man, 2 S. & T. 314. Rep. 455. 51 Cheese v. Lovejoy, 46 L. J. P. LAW OF WILLS. 288 §254. Partial revocation by act manifest on the will. The Statute of Frauds provided that a will devising land, "or any part thereof," might be revoked by the acts there speci- fied, with intention to revoke the same. Under statutes con- taining similar provisions, it is held that a will mav be par- tially revoked by cancelling or burning, etc., one or more clauses, with intention to revoke such clause or clauses, pro- vided that such cancellation and the like merely revokes pre- vious devises, and does not make a new devise.^^ Thus a devise of a fee could be cut down to a life estate by striking out the words "her heirs and assigns forever" after execution.^^ But where the words cancelled or cut out are so connected with the rest of the will that if such a partial revocation were al- lowed it would effect a new devise without any re-publication, such partial revocation is not allowed unless the statutes permit revivor of a will without re-publication.^''' The act of erasing or cancelling one or more clauses of a will, with intent to revoke them alone, does not as a rule revoke the will as a whole, as the intention to revoke is clearly wanting.^** 55 Swinton v. Bailey, 48 L. J. Ex. 534 ; In re Kirkpatrick, 22 N. J. 57; 4 App. Cas. 70; Goods of Leach, Eq. 463; Tomlinson's Appeal, 133 63 L. T. Ill; Goods of Woodward, Pa. St. 245; Johnson v. Brailsford, L. R. 2 P. 206 ; 19 W. R. 448 ; 40 2 Nott & M. 272. L. J. P. 17; 24 L. T. 40; Sutton v. 56 Swinton v. Bailey, 48 L. J. Ex. Sutton, Cowp. 812; Larkins v. Lar- 57; 4 App. Cas. 70. kins, 3 Bos. & P. 16; Roberts v. 57 Larkins v. Larkins, 3 Bos. & Round, 3 Hagg. 548; Short v. P. 16; Miles's Appeal, 68 Conn. Smith, 4 East, 418; Martins v. 237; Esohback v. Collins, 61 Md. Gardner, 8 Sim. 73, 5 L. J. Ch. 478 (where the words cancelled 305; Swinton v. Bailey, 45 L. J. would have enlarged a life estate Ex. 427; Mence v. Mence, 18 Ves. to a fee.) Jr. 348 ; Francis v. Grover, 5 Hare ss Goods ot Woodward, L. R. 2 P. 39 (obiter) ; Miles's Appeal, 68 206; Hesterberg v. Clark, 166 111. Conn. 237; Wolf v. Bollinger, 62 241; Wheeler v. Bent, 7 Pick. 111. 368; Brown's Will, 1 B. Mon. (Mass.) 61: Goods of Penniman, (Ky.) 56; Wells v. Wells, 4 T. B. 20 Minn. 220; Simrell's Estate, Mon. (Ky.) 152; Tudor v. Tudor, 154 Pa. St. 604; Pringle v. McPher- 17 T. B. Mon. (Ky.) 383; Batche- son, 2 Desaus. (S. Car.) 524; lor's Succession, 48 La. Ann. 278 Bigelow V. Gillott, 123 Mass. 102 Esohback v. Collins, 61 Md. 478 Varnon v. Varnon, 67 Mo. App. Stover V. Kendall, 1 Cold. (Tenn.) 557; Cogbill v. Cogbill, 2 Hen. & M. (Va.) 467. 284 LAW OF WILLS. A cancelation of parts of a will which leaves the remainder un- intelligible is held to operate as a revocation of the entire will.59^ This exception to the general rule rests on the theory that testator intended a revocation of the clauses cancelled at least ; and that he could not have intended the remainder of his will to be enforced in the condition assumed. Furthermore, the courts will not enforce a vague and uncertain will, whether it is so because of cancellations or because of defects in the original scheme of dispositon. Recent statutes either expressly provide that no alteration in the contents of a will shall have any effect unless executed with the form.alities required for the execution of a will, or omit all reference to revocation of a part of a will. Under such statutes it is held that if the words sought to be cancelled are still legible no partial revocation of the will can be permitted even if the testator intended such revocation.^*' Thus, testator pasted pieces of paper over parts of his will and on his death the will was admitted to probate in 1874, with the parts thus covered probated in blank. In 1893 it was found that these parts could be read, and as experts testified that they could be read without resort to artificial means these parts were admitted to probate.^^ But if the words cancelled are illegible, and can not be proved otherwise, the court will necessarily be unable to probate them ; and as it does not appear to be the in- 59 Olmstead's Estate, 122 Cal. Ecc. 5; Cooper v. Brockett, 4 224; Miih's Succession, 35 La. Ann. Moore, P. C. 419; Goods of Green- 394. (Where sixteen out of twenty wood (1892), Prob. 7; Ffinch v. legacies were cancelled and testa- Combe (1894), Prob. 191; 6 Rep. tor's signature was so blotted as to 54.5; Locke v. James, 13 Law J. Ex. be legible only by experts.) Dam- 186; Law v. Law, 83 Ala. 432; man v. Damman (Md.) 1894, 28 Lovell v. Quitman, 88 N. Y. 377; Atl. 408. (One-third of the items Giffin v. Brooke, 48 O. S. 211. were erased, the remainder being ei Ffinch v. Combe (1894), Prob. thus left in part unintelligible; 191; 6 Rep. 545. testator's signature not canceled.) «" Burgoyne v. Showier, 1 Rob. LAW OF WILLS. 285 tention of the testator to revoke the entire will, it must be pro- bated with the cancelled parts blank. *^^ The only point upon which there seems to be actual conflict of authority in this connection is where the statute omits all reference to the revocation of part of a will, neither expressly permitting it nor expressly prohibiting it. The weight of au- thority seems to be that under such statute a partial revocation of a will is impossible in law, if the words sought to be revoked are still legible.^^ A contrary view is entertained in Massachusetts. In that state their statute of 1783 permitted expressly a revocation of a devise of land "or of any clause thereof" in the manner spec- ified. The revision of 1836 omitted the words "or of any clause thereof." The court held that under the revision the right of partial revocation still existed, saying: "The power to revoke a will includes the power to revoke any part of it. If we were to hold that, under this provision, a testator could not revoke a part of a will by cancelling or obliterating it, we should be obliged by the same rule of construction to hold that he could not revoke a part by a codicil, which would be against the uni- form practice of this commonwealth, sanctioned by numerous decisions. We are therefore of the opinion that, in this case, the cancellation by the testator of the sixth and thirteenth clauses of his will by drawing lines through them, with inten- tion of revoking them, was a legal revocation of those clauses."*^^ §255. Revocation prevented by fraud. As we have seen,*^^ prior to the Statute of Frauds, or Amer- ican statutes of revocation based thereon, a written will might be revoked by the acts and declarations of testator, whether apparent on the will or not. Where the law was in such con- 62Hobbs V. Knight, 1 Curt. 768; 8 L. R. A. 383; Giffin v. Brooke, Townley v. Watson, 3 Curt. 761; In 48 0. S. 211. re Brewster, 29 L. J. P. 69 ; Goods 64 Bigelow v. Gillott, 123 Mass. of James, 1 S. & T. 238. 102. 63 Law V. Law, 83 Ala. 4,32 : er, jciec Sec. 244. Gardiner v. Gardiner, 65 N. H. 230 ; 286 LAW OF WILLS. ditioii testator's attempt to destroy his will, which was frus- trated by the fraud of devisee, who represented that the will was already destroyed, might act as a revocation of such will.^® Subsequent to the passage of these statutes, since their pro- visions require that one of the specified acts be manifest upon the will in order to effect a revocation, a question of consider- able difficulty is presented where testator intends to and wishes to revoke his will, but is prevented from so doing by fraud, deceit and the like. The weight of authority is that, in the absence of all the acts specified as necessary in the statute, to be manifest on the will, the will can not ^be revoked at law by testator's intention alone, no matter by what deceit this inten- tion may be prevented from manifesting itself by one of the required acts.^'^ This rule is followed even where the testator is by fraud and deceit induced to believe that his will has actually been de- stroyed in obedience to his instructions.®* Thus, a blind testator ordered his will to be brought to him, felt it and recognized it by the seals on it, and then ordered his grandson to destroy it; and the grandson threw another paper into the fire, and the testator heard the noise of the burning and obser\"ed the smell, and was assured by his grandson that the will was burning, and was thus induced to believe that his will was destroyed, in which belief he died. It was held that such acts did not amount to a revocation.®^ 66 Card V. Grinman, 5 Conn. 164. to be explained fully as much on 67 Doe V. Harris, 8 Ad. & El. 1 ; the theory that testator abandoned 35 E. C. L. 299 ; Gains v. his intention to revoke at the pres- Gains, 2 A. K. Marsh. (Ky. ) ent time and merely intended to re- 190 ; Graham v. Burch, 47 voke in the future ; for it appears Minn. 171; Hise v. Fincher, 10 Ired. very doubtful if testator was de- (N. Car.) 139; Giles v Giles, (N. ceived into thinking his will was C. ) Taylor's Conf. Rpt. 290, 174; destroyed, though devisee undoubt- Delafield v. Parish, 25 N. Y. 9 ; edly tried so to deceive him. Kent V. Mahaffey, 10 0. S. 204: es Hise v. Fincher, 10 Ired (N. Boyd V. Cook, 3 Leigh (Va.) 32; Car.) 139: Kent v. Mahaffey, 10 O. Malone v. Hobbs. 1 Rob. (Va.) S. 204; Boyd v. Cook, 3 Leigh 346; Blanchard v. Blanchard, 32 (Va. ) 32 : Marlowe v. Hobbs, 1 Rob. Vt. 62. (Va.) 346. Doe V. Harris, supra, is probably 69 Kent v. ]\Iahaffey. 10 0. S. 204. 287 LAW OF WILL^. So wbere testator put his will in a stove upon the kmdlmgs, wUch were uot yet set on five, meaning to bum >t and testator . toghter. a heneiiciary under the will, removed .t before the fire was started, this was held not to be a revocation. Some of the cases often cited on this po.nt are hardly appU- cable Thus, where testator's wife informed hnn that she had uled his will without his authority, and thereby mduced hnn to desist from searching for it to destroy, it was held that fraud Ih not operat. as a revocation, and that, furthermore, even Tthe statements of the wife were true they would not a,nou t to a revocation, as the destruction alleged was neither by tes- tator nor bv his previous authority." . , . .1 •»,. A few iurisdictions hold, contrary to the weight of author ty, that where testator is deceived into thinking that his wi 1 is destroyed, it operates as a revocation." Thus, in a case where testatrix Lept a red ribbon tied around her will and in some wav, probably by fraud, this ribbon was transferred to another document, which latter document testatrix burned without look- in. at it it was held that if testatrix believed she was burning her will it would operate as a revocation. The last case well illustrates the danger of attempting by judicial legislation to add to the statutory requirements for revoking a written will. An attempt has been made to treat such acts as practically effecting a revocation in equity though not in law, and to work out this theorv by holding the beneficiary as a trustee for those who would have taken the property had the will been revoked Obiters are found to this effect in cases where the only point TO Graham v. Burch, 47 Minn. practiced this deceit (i. e substi- ^70 Graham v. ^^^^.^^^ ^^ ^^^ j^^^^^. ^^^, ^^^^ ^^^ID ^"^' , ,r q iKxr T Fn upon the old man and the latter .;;.''olt:v''SHrfe;stP:; Z. ^^^-oy.. «.e lette. tM„..n. 290, unngan v. .^ ^^^^ ^^^ ^.jl^ ^^^.^ circurast.iiiccs ®*;.Cavd V. Grinman. 5 Conn. 168. were equivalent to »««';-""" ";, ,. .. .ee.,e. .e.re t.e ...ate revocation o * » w„ ,«<. a„a rv:rTC"n.TrG:::r,44S>. rt,,.. o,. not .,.. .et. we. i- in this case the court said: "The proof. Judge ... should have told the - Smdey v. Gambill, 2 Head jury in effect that if Matthews had (Tenn.) 164. 288 LAW OF WILLS. presented for adjudication was the effect of these acts in law/^ But where the question has been presented squarely by the record the courts have held that equity could not ignore the words of the statute of revocation. ''The statute was designed to prevent the frauds and perjuries arising out of mere parol revocations, and to sanction a recovery in this case would open the door for the very evils which the statute intended to ex- clude." '^ In all the cases cited, however, testator was under no coercion or restraint whereby he was prevented from revoking his will by making a new will or resorting to other statutory methods. As to what view the courts would take of a case where testator was not only misled into thinking his will revoked, but also prevented by actual coercion from doing some further act which would revoke it in any event, we have only a few scattered obiters to guide us. While these seem adverse to giving any remedy not specified by statute, it seems difficult to believe that a wrong so extreme will not in some way be remedied by the law. §256. Animus revocandi. — In general. In revocation by a specific act manifest upon the will, the statutes provide that such act shall be a revocation only when done animo revocandi, with intent to revoke the will. If such intention is absent, the mere act of tearing, cancelling and the like has no effect to revoke the will.'^^ ■4 Card V. Grinman, 5 Conn. 1G8 ; sufficient, for that may have been Gaines v. Gaines, 2 A. K. Harsh. occasioned by mistake or fraud, or (Ky. ) 190; Blanchard v. Blanch- as in the case of a testator who ard, 32 Vt. 62. In Graham v. Burch, since the making of his will has be- 47 Minn. 171, the question was come insane, it may be accomp- raised in argument, but the court lished A\nthout any lawful intent refused to consider it in a proceed- whatever. Again, the mere intent, ing to contest a will as "not prop- without some physical act tending erly before us for our considera- to the destruction of the will, and tion." sufficient to fulfill the requirements 75 Kent V. Mahafl'ey, 10 O. S. 204. of the statute, for very ob\ious rea- 76 "Mere physical destruction, sons is insufficient, since the Stat- however complete it may be, is not ute expressly requires the joint LAW OF WILLS. 289 §257. Animus revocandi. — Who is capable of revoking a will. The act of revocation may take place without the intention to revoke in any one of several different ways. First. The testator may not, at the time that he performs the act, be competent to make a will ; and in such case he can not form the intention to revoke a will. A will can be revoked only by a person of sufficient age, mind and memory to make a valid will. The rules already given as to capacity for making a will apply here fully.*^^ Thus, where a person suffering from softening of the brain tore his will in five pieces, it was held that these pieces con- stituted his valid will, it appearing that he did not at that time possess sufficient mind and memory to make a valid will.'^^ So the act of an insane man can not revoke a will,'^^ nor the act of one who is suffering from delirium tremens.^^ Since the intention to revoke is an essential element of revo- cation by act manifest on the will, it follows that where such outward act is caused by the undue influence of another, it is not a revocation.^^ It is possible for a testator under guardianship to possess testamentary capacity.^^ Accordingly, when one under guar- dianship destroys his will with the intention of revoking it, union of act and intent." 01m- Pa. St. 218 ; Ford v. Ford, 7 Hump, stead's Estate, 122 Cal. 224; Pot- (Tenn.) 92; Jones v. Roberts, 84 ter's Will, 33 N. Y. S. R. 93G; 12 Wis. 4G5. N. Y. Supp. 105. 78 Goods of Hine (1893), Prob. 77 Brunt V. Brunt, L. R. 3 P. 282. 37: 21 W. R. 392. 28 L. T. 368: 79 Lang's Estate, 65 Cal. 19; Goods of Hine (1893), Prob. 282: Forbing v. Weber, 99 Ind. 588; Lang's Estate, 65 Cal. 19; John- Ford v. Ford, 7 Hump. 92 (26 son's Will, 40 Conn. 587; Link- Tenn.). meyer v. Brandt, 107 lo. 750 ; so Brunt v. Brunt, L. R. 3 P. 37 ; Forbing v. Weber, 99 Ind. 588 ; 28 L. T. 368 ; 21 W. R. 392. Allison V. Allison. 7 Dana (Ky.) si Button v. Watson, 13 Ga. 63; 94 ; Gregory v. Gates, 92 Ky. 532 ; Laughton v. Atkins, 1 Pick. Connelly v. Beal, 77 Md. 116; (Mass.) 535; Rich v. Gilkey, 72 Rhodes v. Vinson, 9 Gill. (Md.) Me. 595; Mclntire v. Worthington, 169; Mclntire v. Worthington, 68 68 Md. 203; Vorhees v. Vorhees, Md. 203; Waldron's Will, 44 N. Y. 73 Me. 595. Supp. 353; Delafield v. Parish, 25 82 See Sec. 115. N. Y. 9; Gardner v. Gardner, 177 290 LAW OF WILLS. this effects a revocation if such person had at that time capacity to make a will.** §258. Animus revocandi. — Mistake of fact. Second. The act of revocation may be done by a competent testator under a mistake of fact. If testator acts through a mistake of fact as to the identity of the paper or as to the nature of the act he does, no revocation is effected, even though there is such act manifest upon the paper as would constitute a revo- cation if done with intent to revoke.*"* So, where the act mani- fest upon the instrument is done unintentionally, no revocation is effected. Thus, in an early English case a testator threw ink upon his will by mistake instead of sand, to blot it. It was held that this was not such a cancellation as would revoke the will.*^ Conditional revocation is really a branch of this subject; but as it applies to wills revoked by a later instrument, as well as by acts manifest upon the face of the will, it will be discussed subsequently.*^ §259. Animus revocandi. — Mistake of law. Where the will is cancelled, torn, etc., by reason of a mis- take of law, the weight of authority is that this does not effect a revocation if the evidence shows that the revoking act was done solely by reason of the mistake of law.*'^ So, where testator revokes a later will, the destruction of which under the law then in force does not revive the earlier will, under a mistake of law, thinking that such earlier will will thereby be revived, it is held that the intention to revoke 83Linkmeyer v. Brandt, 107 lo. Smiley v. Gambill, (39 Tenn.) 2 750. ' Head. (Tenn.) 164. 84 Goods of Wheeler, 49 L. J. P. §5 Burtenshaw v. Gilbert, Cowp. 29; 44 J. P. 285; Smock v. Smock, 52; L®fft, 465. 3 Stock. 156; Beauchamp's Appeal, 86 See Sees. 275-277. 4 Mar. (Ivy.) 363; Burns v. 87 Semmes v. Semmes, 7 H. & J. Burns, 4 S.' & R. (Pa.) 295; 'Md.) 388. LAW OF WILLS. 291 the later will was conditioned upon the revivor of the earlier, and the condition failing, the intention to revoke does not exist.^* Thus, where the testator believed that the will was invalid, and for that reason alone tore it, it was held that such acts did not of themselves amount to a revocation. In this case, however, the intention to revoke was caused by a mistake of fact, and, furthermore, was abandoned before the act of revo- cation was completed.^® So, where a will was cancelled by testator by reason of a mistake as to the legal effect of a deed, it was held that such will was not revoked, though probate should be in solemn form.^^ §260. Animus revocandi. — Attempt to alter v/ill. The ai^t of revocation may be done by testator as a part of an unsuccessful attempt to alter his will by the erasure of a part of the will and the insertion of new provisions. Where this is the object of such erasure, and the interlineations are invalid because they are not executed in the manner prescribed by statute, the intention to revoke does not exist, and the will as originally drafted is in force.®^ 88 Powell V. Powell, 35 L. J. P. 100; L. R. 1 P. 209; 14 L. T. 800; Eckersley v. Piatt, 36 L. J. P. 7; L. R. 1 P. 282; 15 L. T. 327; 15 W. R. 232. James v. Shrimpton, 1 Prob. Div. 431. (This case may be explained on a different theory of the law. The second will ( here a codocil ) could not be found, but there was no direct evidence to show that he had destroyed it; while his declara- tions showed that he looked upon bis will as being in force. The court may have found that he had not destroyed the second will. It, however, assumed that he destroyed it, but explained the case on the theor}^ given in the text.) 89 Giles V. Warren, 41 L. J. P. 59; L. R. 2 P. 401; 26 L. T. 780; 20 W. R. 827; Semmes v. Semmes, 7 H. & J. 388. 90 Goods of James, 19 L. T. 610. 91 Onions v. Tyrer, 1 P. Wms. 343; Wolf V. Bollinger, 62 111. 368; Youse V. Foreman, 5 Bush (Ky.) 337; Thomas's Will, Minn. 79 N. W. 104; Varnon v. Varnon, 67 Mo. App. 534: Pringle v. McPher- son, 2 Des. 524; Stover v. Kendall, 1 Cold. 557. 292 LAW OF WILLS. §261, Animus revocandi. — Destruction without testator's au- thority. Where the will is cancelled, destroyed and the like without the previous permission and authority of testator, such acts are, of course, done without any intent on testator's part to revoke, and do not effect a revocation.^^ Where the evidence left it doubtful how the will was de- stroyed or by whom, or whether testator, who was present, was conscious at the time, it was held that since it was destroyed in the lifetime of testator, it must be sliown, in order to pre- vent a revocation, that the destruction was fraudulent.^^ In other states a destruction by some one other than testator in testator's lifetime, while not operating as a revocation, may leave the will in the anomalous condition of being unrevoked and yet impossible to probate.^"* While it has been queried whether testator can, by subsequent ratification, make an unauthorzed destruction operate as a revocation,^^ the better view seems to be that he can not.^^ So, where the intention to revoke is abandoned before the act of revocation is completed, it has been held that the act done is not to be considered done with intent to revoke, and does not effect a revocation.^"^ §262. Revocation by later instrument. — In general. Since a will is always revocable, a will valid when made may be superseded or revoked by a later instrument. The questions under this topic may be grouped iinder two heads: First. By what sort of instrument a testator may revoke his 92 Mills V. Millward, 59 L. J. P. es Mills v. Millward, 59 L. J. P. 23; 15 P. D. 20; 61 L. T. 651; 23; 15 P. D. 20: 61 L. T. 651. Cheever v. North, 106 Mich. 390, 96 Mundy v. Mundy, 2 McCart. Mundy v. Mundy, 64 N. W. 455; (K J.) 15 N. J. Eq. 290; Clin- 2 MeCart. (N. J.) 15 N. J. Eq. 290; gan v. Mitcheltree, 31 Pa. St. 25. Clingan v. Mitcheltree, 31 Pa. 97 Giles v. Warren, 41 L. J. P. St. 25; Means v. Moore, 3 McC. (S. 59; 20 W. R. 827; L. R. 2 P. 401; Car.) 282: Harp. 314. 26 L. T. 780; Doe d. Perkes v. 93 Kidder's Estate, 66 Cal. 487. Perkes, 3 B. & Aid. 489. 94 See Sec. .348. LAW OF WILLS. ^""^ will; and second, assuming that the instrument is sufficiently formal to eli'ect a revocation, ifsuch is testator's intention, to determine whether his intention to revoke appears upon the face of the later instrument. The doctrine of revocation by a later will is not affected by statutes on the subject of revocation, which prescribe the for- malities of burning- tearing and the like. Even under such statutes a later will inconsistent with the earlier one, or con- taining an express revocation clause, revokes the earlier.^^ §263. Revocation by informal instrument. In the absence of any statute upon the subject, a will was held to be revoked by any writing, no matter how informal, which showed testator's intention that his will should thereby be revoked.''^ But even where a will may be revoked by a "writing," it is held that a codicil not properly executed is not a "writing" within the meaning of the statute. This distinction is based upon the doctrine of dependent relative revocation. The assumption is made that the revocation clause of the cod- icil is inserted in order to permit of the dispositive provisions therein; and if the codicil is not so executed as to give effect to these provisions, it is treated as entirely void, including the clause of revocation.^ "^^ §264. Revocation by formal instrument. As the dangers arising out of loose revocation became ap- parent, and statutes were passed limiting and controlling revocation by act manifest on the will, the legislatures began to pass other statutes providing that a will could be revoked 98 Dempsey v. Lawson, 2 P. D. 98. wife shall claim no right of dower 99 Witter \. Mott, 2 Conn. 67. and bound himself accordingly. (In this case the will was held r*- Samuel Nott.") Brown v. Thorn- voked by the following writing on dike, 15 Pick. 388; Johnson v. the back of the will: "This will Brailsford, 2 N. & McC. 272. is invalid March 9, 1813, as Mr. loo Boylan v. Meeker, 4 Dutch. Suther Smith has agreed that my 274 ; Heise v. Heise, 31 Pa. St. 246. 294 LAW OF WILLS. by a later instmment only when executed with the same formalities as a new will. Owing to the fact that testaments of personalty required a less formal execution than wills of realty, they remained for a time subject to revocation by informal instruments.^^' It is now settled by statute, in most jurisdictions, that if a will is to be revoked by a later instrument; that instrument must be executed with the formalities of a will, and that no matter how clear testator's intention may be, an instrument executed without these forms can not revoke a will.'°^ Hence, where a will must be attested by three witnesses, a paper attested by two can not revoke a written will.'*^^ In jurisdictions where testaments of personalty may be ex- ecuted with less formality than wills of real estate, an instru- ment which is valid as a testament, but not valid as a will, may revoke an earlier instrument, good both as a will and as a testament, as far as the personal property of testator is con- cerned.^^'* So a holographic will, as far as it is valid, will revoke a will executed with the formalities required of ordinary written wills.1^5 101 Brown v. Thorndike, 15 Pick. io4 I inberry v. Mason, 2 Comyn's 388. Rpp- 451 ; Montefiore v. Montefiore, 102 Cheese v. Lovejoy, 40 L. J. P. 2 Addams, 354 ; 2 Eng. Ece. Rep. 66; 2 P. D. 251; 25 W. R. 853; 342; Brown v. Tilden, 5 Har. & J. Barksdale v. Hopkins, 23 Ga. 332; (Md.) 371; Marston v. Marston, 17 Hollingshead v. Sturgis, 21 La. X. H. 503; Orgain v. Irvine, 100 Ann. 450; Seymour's Succession, Tenn. 193; Guthrie v. Owens, 2 48 La. Ann. 993; Eschbach v. Hum. (Tenn.) 202; Glasscock v. Collins, 61 Md. 478; Reid v. Bor- Smither, 1 Call. (Va.) 479; Cog- land, 14 Mass. 208; Laugh ton v. bill v. Cogbill, 2 Hen. & M. (Va.) Atkins, 1 Pick. 535 ; West v. West, 467. 144 Mo. 119; Morey v. Sohier, 63 los Goods of Tumour, 56 L, T. N. H. 507; Rudy v. Ulrieh, 69 Pa. 671; Ennis v. Smith, 14 How. St. 177; Reese v. Portsmouth 400; Hooper v. McQuary, 5 Cold. Probate Court, 9 R. I. 434; Ken- (Tenn.) 129; Gordon v. Whitlock, nedy v. Upshaw, 64 Tex. 411: 92 Va. 723. Noyes's Will, 61 Vt. 14. Contra, In re Sober, 78 Cal. 477. 103 Morey v. Sohier, 63 N. H. 507. LAW OF WILLS. 295 As under the modern statutes words alone can not revoke a written will, it follows that a nuncupative will, even though of itself valid, can not revoke a prior written will,^*^*^ except where the statute makes a special exception in its favor. Thus, in Tennessee it is provided that if the nuncupative will is reduced to writing in the lifetme of the testator and read over to him and approved, it may operate to revoke a written will.io^ §265. Revocation by later instrument not a will. The instrument by which a previously executed will is re- voked may be an instrument executed solely for that purpose, and containing only a provision for revocation.^ °^ Such an in- strument will be held to revoke an earlier will even in juris- dictions in which the later revoking instrument is itself held not to be a will.-^^^ It is not necessary that the second instrument be probated in order that it may be used in the contest of the first will to show a revocation thereof.^ ^^ The revoking instrument may also be a deed.^^^ 100 McCune v. Hause, 8 Ohio 144; It was duly executed.) Seymour's Brook V. Chappell, 34 Wis. 405. Succession, 48 La. Ann. 993; 107 Woodward v. Woodward, 5 Noyes's Will, 61 Vt. 14. Sneed (Tenn.) 49. los Barksdale v. Hopkins, 23 Ga. 108 Goods of Gosling, 55 L. J. P. 332 ; Seymour's Succession, 48 La. 27; 11 P. D. 79; 34 W. R. 492; Ann. 993; Noyes's Will, 61 Vt. 14. 50 J. P. 263. (In this case the no Barksdale v. Hopkins, 23 Ga. codicil and testator's signature 332; (obiter) Noyes's Will, 61 Vt. were obliterated by black marks. 14. Testator then wrote "We are wit- m In a recent Maine case the nesses of the erasure of the above." grantor of real property reserved This was duly signed by testator the power to appoint to the use by and two witnesses. It was held a will or other written instrument. good revocation by a writing de- He executed a will in which he ap-- elaring testator's intention to re- pointed to the use. Subsequently voke.) Barksdale v. Hopkins, 23 by another written instrument he Ga. 332 ; Bayley v. Bayley, 5 Gush. made a different appointment. It 245. (The revoking instrument in , was held that the second appoint- this case was "It is my wish that ment revoked the will.. Paine v. the will T made be destroyed and Forsythe, 86 Me. 357. my estate settled according to law. 296 LAW OF WILLS. §266. "What shows testator's intention to revoke will. The intention of testator to revoke his earlier will must ap- pear on the face of the revoking instrument in jurisdictions where revocation by parol is abolished.^ ^^ The question of what shows testator's intention to revoke an earlier will is thus one of construction inserted here for con- venience of treatment. Thus, a will in which testator disin- herits a daughter, denying that she is his child, is not revoked bj a subsequent contract to support her, made by way of com- promise to terminate a suit to compel him to support her, even if the contract recognized her as his daughter, and purported to be based on "love and affection." ^^^ If the later instrument is not a will, makes no disposition of testator's realty, and shows on its face that testator merely intended to revoke his will at some subsequent time, such in- strument is not sufficient to effect a revocation.^ ^^ §267. Revocation by later will. — Express revocation clause. The later revoking instrument is much oftener a will or codicil. In the discussion of this branch of the subject a distinction must be noted between wills which contain an express clause of revocation and those which do not contain such a clause. If the later will contains an express clause of revocation, the earlier will is thereby rendered invalid, irrespective of the dis- position of property made by the second will; ^^^ and this is true even if the other provisions of the revoking will proved ineffectual.^ ^^ 112 Taylor v. Pegram, 151 111. Burns v. Travis, 117 Ind. 44; lOG; Hill's Succession, 47 La. Ann. Smith v. McChesney, 2 McCart. 329; Kirkpatrick v. Jenkins, 96 359, 15 N. J. Eq. 359; Snowhill v. Tenn. 85. Snowhill, 3 Zab. 448 (21 N. J. L. 113 Padelford's Estate, 190 Pa. 448) ; Pierpont v. Patrick, 53 N. Y. St. 35. 591; Price v. Maxwell, 28 Pa. St. 114 Ray V. Walton, 2 Mar. (Ky.) 23; Lutheran, etc.. Appeal, 113 Pa. 71. St. 32; Teacle's Estate, 153 Pa. St. 115 Collins V. Elstone (1893), 219; Walls v. Walls, 182 Pa. St. Prob. 1; 1 Rep. 458; Paton v. Or- 226. merod (1892), Prob. 247; Goods us Burns v. Travis, 117 Ind. 44; of Carritt, 66 Law T. 379; Price v. Maxwell, 28 Pa. St. 23. LAW OF WILLS. 297 Revocation is effected even where it may be doubtful if testator intended to revoke his first will by his second. In the absence of fraud, at least, the execution of a will with an express clause of revocation operates as a revocation.^ ^'^ The revocation clause need not avoid the whole of the earlier will. If it expressly revokes a specified part of such will it will effect a partial revocation only.^^^ The will which contains the revocation clause may, by its phraseology, show that revocation was not intended. Thus, a testator by codicil provided "I hereby annul and revoke" a specified bequest. The rest of the codicil provided that said bequest, instead of vesting on testator's death, should not vest till the death of two other persons. It was held that testator did not intend a revocation by this codicil.^ ^^ So, where a codicil began "I hereby revoke and annul all wills by me heretofore made," but by constant reference in the codicil to the will to which codicil was annexed, it appeared that the testator intended such will to be in full force, sup- plemented by the codicil, the will was not revoked.^ ^*^ A will is not revoked by a later will, the revocation clause of which was crossed out by a lead pencil before execution, except as far as the second will was inconsistent with the first. ^^^ And where the revocation clause in the printed blank on which the will was written was not filled up and was not read to testatrix 117 Collins V. Elstone (1893), not revocation. Ilie fact that the Prob. 1 ; 1 Reports, 458. testator called it by that name 118 /m re Fence's Estate (1895), does not make it so. Revoke means 2 Ch. 778; Home for Incurables v. to recall, to take back, to repeal. Noble, 172 U. S. 383; Johns Hop- Annul means to abrogate, to make kins University v. Pinckey, 55 Md. void. The codocil did not recall 365; McGehee v. McGehee, 74 Miss. or make void the bequest in any 386 ; Jackson v. Shinnick, 6 Ohio particular except as to the time Dec. 37; 3 Onio N. P. 211; Nel- of payment, and this it changed, son's Estate, 147 Pa. St. 160. It left the donee, the gift and the 119 Watt's Estate, 168 Pa. St. purpose to which it was to be ap- 422. "What the testator did and plied, unchanged." Watt's Estate all that he intended to do was to 168 Pa. St. 422. change the time for the payment 120 Gelbke v. Gelbke, 88 Ala. of the bequest so as to give the in- 427. terest to the persons named in the 121 Goods of Tonge, 66 Law T. N. codicil while thev lived. This is S. 60. 298 LAW OF WILLS. when the rest of the will was read, it was held not to operate as an absolute revocation of a prior will.^^^ §268. Revocation by later will. — No clause of express revo- cation. If the later will does not contain a clause of express revo- cation, the question to be considered is, whether or not the later will is consistent with the earlier will. If it is consistent no revocation is effected, and the two wills are to be taken together as one in effect.^ "^ If the later will is inconsistent with the earlier will, it revokes the earlier will just so far as it is consistent with it, and no farther ;^^'* and the absence of a revocation clause does not prevent revocation to this extent.^ ^^ Hence, where there is no revocation clause, if the second instrmnent fails of effect for any cause, as for invalidity of the disposition made therein, the earlier will is not thereby revoked.^ ^^ 122 Goods of Moore, (1892), Prob. 378. i23Goods of Rawlings, 41 L. T. 559: Bringhurst v. Orth (Del. Cli.), 44 Atl. 783; Snowhill v. Snowhill, 3 Zab. 448 (21 N. J. L. 448) ; Wet- more V. Parker, 52 N. Y. 450 ; Vom Vechten v. Keator, 63 N. Y. 52; Aubert's Appeal, 109 Pa. St. 447; Carl's Appeal, 106 Pa. St. 635; Gordon v. Whitlock, 92 Va. 723; Barksdale v. Barksdale, 12 Leigh 535. Contra, In Barker v. Bell, 49 Ala. 384, it was said that a later will per se revokes an earlier one, and that no proof of inconsistency be- tween them was necessary. 124 Dempsey v. Lawson, 2 P. D. 98; Goods of Hodgkinson (1893), P. 339 ; Home for Incurables V. Noble, 172 U. S. 383; 19 S. Ct. 226; Kelly v. Richardson, 100 Ala. 584; 13 So. 785; Giddings V. Giddings, 65 Conn. 149: De La- veaga's Estate, 119 Cal. 051; Stur- gis V. Work, 122 Ind. 134; Mer- cer's Succession, 28 La. Ann. 564 : Coffin V. Otis, 11 Met. 156 (52 Mass.) ; McGehee v. McGehee, 74 Miss. 386; Marston v. Marston, 17 N. H. 503; Snowhill v. Snowhill, 3 Zab. (21 N. J. L.) 448: Lane v. Hill (N. H.), (1895), 44 Atl. 393; Newcomb v. Webster, 113 N. Y. 191: Hoffner's Estate, 161 Pa. St. 331: McRainey v. Clark, Tayl. (N. Car. ) , 278 and 698 ; Gordon v. Whit- lock, 92 Va. 723. i25Cadel] V. Wilcocks (1898), P. 21; 78 L. T. Rep. 83: Tournoir V. Tournoir, 12 La. Report, 19: Jones V. Murphy, 8 W. & S. 275 (Pa.) l26i^ustin V. Oakes, 117 N. Y. 577: Godbold v. Vance, 14 S. Car. 458. LAW OF WILLS. 299 §269. Revocation by later instrument.- will and codicil. Distinction between If the later iustrument is termed a codicil, a strong effort will be made to construe it so as to reconcile it with the will as far as can possibly be done.^^^ The codicil will be held to revoke the will only when necessary to give effect to the pro- visons of the codicil.^ ^® So, if the will clearly gives an estate, 127 Van Grutten v. Foxwell, (1897), A. C. 658; Howell v. Shepherd (1894), 3 Ch. 649; 64 L. J. Ch. (N. S.), 42; /«, re Chifferiel, 73 Law T. 53; Homer v. Brown, 16 How. (U. S.), 354; Home for In- curables V. Noble, 172 U. S. 383; Hitchcock V. Bank, 7 Ala. 386; Grimball v. Patton, 70 Ala. 626; Mason v. Smith, 49 Ala. 71 ; In re Zeile, 74 Cal. 125; Pendle- ton V. Larrabee, 62 Conn. 393; Wheeler v. Fellows, 52 Conn. 238; Bringhurst v. Orth (Del. Ch.) 44 Atl. 783; Ellis v. Dick, 165 111. 637; Sharp v. Wallace, 83 Ky. 584; Bedford v. Bedford, 99 Ky. 273; Johns Hopkins University v. Pinckney, 55 Md. 365 ; Thomas v. Levering, 73 Md. 451; Tilden v. Tilden, 13 Gray (Mass.), 103; Holden v. Blaney, 119 Mass. 421; Pendergast v. Tib- betts, 164 Mass. 270; Chapin v. Parker, 157 Mass. 63; Richardson V. Willis, 163 Mass. 130; Holly- burton V. Carson, 86 K Car. 290 Hackett v. Hackett, 67 K H. 424 Hard v. Ashley, 117 N. Y. 606 Wetmore v. Parker, 52 N. Y. 450 Crozier v. Bray, 120 N. Y. 366 Newcomb v. Webster, 113 N. Y, 191; Collier v. Collier, 3 O. S. 369 Jones V. Strong, 142 Pa. St. 496 Rhodes's Estate, 147 Pa. St. 227 Whelen's Estate, 175 Pa. St. 23 Reichard's Appeal, 116 Pa. St. 232 Neff's Appeal, 48 Pa. St, 501 ; Pad el ford's Estate, 190 Pa. St. 35 Otis V. Brown, 20 S. Car. 586; Rodgers v. Rodgers, 6 Heisk. (Tenn. ), 489; Brown v. Cannon, 3 Head. (Tenn.) 354; Barnes v. Hanks, 55 Vt. 317; Lyman v. Morse, Vt, 37 Atl. 1047 ; Gordon v. Whitlock, 92 Va. 723; 24 S. E. 342. "The codicil is part of the will and they must be construed to- gether as one instrument. If the codicil expressly revokes any part of the will, then the part revoked must be stricken out. If any part or clause of the codicil be irrecon- cilably repugnant to a clause or clauses of the will, then to that extent the codicile supplants the will, and the latter becomes inoper- ative. But it supplants the will only to the extent the repugnancy is irreconcilable." Grimball v. Patton, 70 Ala. 626. "The Avill and codicil are to be taken and construed together as parts of one and the same instru- ment speaking the language of the testator at the time of his death." Gray v. Sherman, 5 Allen (Mass.) 198, quoted in Richardson v. Willis. 163 Mass. 130. 128 Vaughan v. Bunch, 53 Miss. 513; Crozier v. Bray, 120 N. Y. 366; Hard v. Ashley, 117 N. Y. 606; Reichard's Appeal, 116 Pa. St. 232 ; Rodgers v. Rodgers, 6 Heisk. 489 ; Jinkins v. Lawrence, 86 Va. 35. 300 LAW OF WILLS. the codicil must be equally clear in order to revoke such gift.^^^ So a codicil does not revoke an earlier codicil, unless such result is absolutely necessary to give effect to the later codicil.^ ^"^ If, however, the codicil is clearly inconsistent with the will it re- vokes so far as it is inconsistent; ■'^^ and the fact that the cod- icil disposes of the whole of testator's estate shows that it is inconsistent with a will which makes a different disposition thereof.^ ^^ Thus a residuary clause in the codicil operates as a revocation of a partial residuary clause in the will.^^^ Where the second instrument is a will, as distinguished from a codicil, the courts do not make so great an effort to reconcile it with the former will as they do in the case of a codicil. The reason for this distinction lies in the fact that a codicil is or- dinarily intended merely to effect some alteration in the will, leaving the rest of it in force ; while a later will may quite as well be intended to dispose of testator's property in disregard of the former will. In fact, if the second will assumes to dispose of the entire estate of testator it is treated as revoking the earlier will as being necessarily inconsistent with it.^^'* If it does not, the presumption against partial intestacy will induce the court to construe the two wills together as far as can reasonably be done.^^^ Even where the later will, which disposed of only 129 Bedford v. Bedford, 99 Ky. Vt. 274; Dawson v. Dawson, 10 273; Sturgis v. Work, 122 Ind. Leigh, 602. 134; Goodwin v. Coddington, 154 i32 piicher v. Hole, 7 Sim. 208; N. Y. 283; Freeman v. Coit, 96 N. Hallyburton v. Carson, 86 N. Car. Y. 63; Viele v. Keeler, 129 N. Y. 290. 190; Redfield V. Redfield, 126 N. Y. iss Sturgis v. Work, 122 Ind. 466. 134. 130 Green v. Tribe, 9 Ch. Div. i34 Moorhouse v. Lord, 10 H. L. 231 ; Goods of De La Saussaye, Cas. 272 ; Bobb's Succession, 42 La. 3 P. & D. 42. Ann. 40; Swan v. Houseman, 90 131 Kelly V. Richardson, 100 Ala. Va. 816; In re Fisher, 4 Wis. 254. 584; De Laveaga's Estate, 119 Cal. i35 Geaves v. Price, 3 S. & T. 651; Giddings v. Giddings, 65 Conn. 71; Sarce v. Dunoyer, 11 La. 149; Read v. Manning, 30 Miss. Rep. 220; Austin v. Oakes, 117 N. 308; Hard v. Ashley, 117 N. Y. Y. 577; Price v. Maxwell, 28 Pa. 606; Homer v. Brown, 16 How. St. 23; Gordon v. Whitlock, 92 Va. 354 (U. S.) ; Holley v. Larrabee, 28 723. LAW OF WILLS. 301 a twentieth of the estate, began "This is mj last will," it was construed together with the earlier wills.^^^ Especially are the two wills to be construed together where the second will expressly disclaims any intention of revoking a prior will ;^^'^ and where they are duplicates, with the exception of one dispositive clause, the remainder in the case cited being given after death of the life-tenant to different persons in the two wills, and it is impossible to ascertain which was executed last, neither is revoked, and both should be probated.^^^ Where two wills are executed at the same time, and they are exact duplicates, the later one does not revoke the earlier.^^^ So two wills executed on the same day are to be taken together as far as they are consistent with each other.-^^^ §270. Effect of loss of later instrument. Where the later revoking instrument is lost, but not revoked or intentionally destroyed by testator, it may still be effective to operate as a revocation of the earlier will.-^*^ The fact, however, that testator executed a second will which can not be found at his death, does not of itself revoke the first will. First, In order to effect a revocation, it must be shown that the second will was executed in compliance with the Statute of Wills there in force.^^^ Second, The contents of the lost will must be proved. In the absence of such proof it will not be presumed that the 136 Gordon v. Whitlock, 92 Va. 510 ; Day v. Day, 2 Gr. Ch. (3 N. J. 723. E.), 550; Segare v. Ash, 1 Bay, 137 Succession of Shaffer. 50 La. (S. Car.), 464. Ann. 601; 23 lo. 739. "2 West v. West, 144 Mo. 119; 138 Murphy's Estate, 104 Cal. 46 S. W. 139; McKenna v. Michael, 554. 189 Pa. St. 440; 42 Atl. 14. 139 Odenuaelder v. Schorr, 8 Mo. Where the second will is sup- App. 458. pressed by a beneficiary under the 140 phipp V. Anglesy, 7 Bro. F.X). first will, the law presumes that 443; Murphy's Estate, 104 Cal. the second will was legally drawn 554; Grossman v. Grossman, 95 N. and executed. Lambie's Estate, 97 Y. 145. Mich. 49; See Sec. 439. i4iWallis V. Wallis, 114 Mass. 302 LAW OF WILLS. second will was so inconsistent with the first as to revoke it.^^^ Third, Unless it is shown that the second will was incon- sistent with the first, and was in force at testator's death, it must, in order to effect a revocation, be shown, in addition to the facts of execution, that the lost will contained a clause of revocation. Unless this can be done the first will is in force.^'*^ If the lost will is shown to have contained a clause of ex- press revocation, the first will is not in force, even where it is impossible to prove the contents of the lost will further than such revocation clause.^ ^^ §271, Effect of revocation of later instrument at common law. When the revoking will is itself revoked, the question of the validity of the first will arises. Is it still revoked, or is it revived bj the revocation of the later will ? In this connection the courts have usually discussed two dis- tinct topics : first, is it possible by such revocation of the second will to revive the first ; and second, assuming that the first will may be revived in this manner, what presumption arises from the revocation of the second will as to the intention of testator to revive the first. As far as possible, these two subjects will be discussed separately, the question of the possibility of such revivor being treated of in this chapter, and the subject of the presumptions that arise from the revocation of the later will being reserved for the chapter on Evidence. The English law prior to statutes upon this difiicult ques- tion was in great confusion. The ecclesiastical courts seemed 1*3 Hungerford v. Nosworthy, was suppressed or destroyed by the Shower's cases in Pari. 146; Good- beneficiaries under the first will, it right V. Harwood, 7 Bro. P. C. 344 ; might be assumed that the later Hellier v. Hellier, 9 P. D. 237 ; Mc- will was inconsistent with the Intire v. Mclntire, 162 U. S. 383; earlier will and operated as a revo- In re Sternberg, 94 To. 305 ; Lawson cation thereof. Jones v. Murphy, V. Morrison, 2 Dall. (Pa.) 286; 8 W. & S. 275 (Pa.) Hylton V. Hylton, 1 Gratt. (Va.) i44 Knox v. Knox, 95 Ala. 495; 161. Cheever v. North, 106 Mich. 390. But in an early Pennsylvania "s Wallis v. Wallis, 114 Mass. case it was held that when the evi- 510; Day v. Day, 2 Gr. Ch. 550; dence showed that the second will Segare v. Ashe, 1 Bay, 464. LAW OF WILLS. disposed to hold, in cases of testaments, that no presumption arose either for or against the validity of the first will upon such a state of facts, and that the question was to be settled by the intention of the testator as disclosed by the evidence. The common law tribunals in dealing with wills were m- clined to adopt the theory that the revocation of the second will raised a presumption that testator thereby intended the first will to be in full force and effect. This was a prima facie presumption only and might be rebutted by evidence of a contrary intention.^^^ The two sets of tribunals thus seemed to agree that the testator might revive his first will by the revocation of his second if he intended to do so. Further doubt, however, arises upon attempting an analysis of the aerlier English cases for two different reasons. First, it is not always clear whether the English courte are discus- sing a case where the second will exprassly revoked the fifst, or where it was merely inconsistent with it.^^^ Second, m . many of the cases, especially in the ecclesiastical courts, the declarations of the testator might have been sufficient to re- publish his first will, as no set form was required for the ex- ecution of wills of personal property. It is therefore at times hard to determine whether the first will is valid because^ it has been rc^published after the revocation of the second will, or whether the mere revocation of the second will, with intent to revive the first, revived it without re-publioation.^^^ §272. Effect of revocation of later instrument under modern statutes in England. This condition of uncertainty upon an important and often i46Usticke V. Baudeii, 2 Add. Cow. 49 ; Bates v. Holman, 3 H. & Ecc 116; Moore v. Moore, 1 Phil- M. 503. lim 375, 406; Wilson v. Wilson. 3 But where the earlier will was Phillim ' 543 ; Kirkcudbright v. destroyed the revocation of the Kirkcudbright, 1 Hagg. Ecc. 325j later will did not revive the dupli- Welsh V. Philips, 1 Moore P. C. cate copy of the first will. E(C 299- Helyar v. Helyar, 1 Lee Ecc. parte Hellier, 3 Atk. 798. j^ ' 4--2 "® Goodright v. Glazier, 4 Burr. i4TGoodright v. Glazier, 4 Burr. 2512. 2512; Burtonshaw v. Gilbert. 1 i49 Harvard v. Davis, 2 Bmn. 406. 304 LAW OF WILLS. occurring question Avas ended in England by the statute 1 Vict, c. 26 Sec. 22, which provides in substance that a will once revoked can be revived but by a new codicil or re-execution. This statute has always been held to apply with equal force to a will revoked either by a later will containing a clause of revocation, or by a later inconsistent will.^^*^ Where such a statute is in force, the revocation of a later will by a testator who intends thereby to revive his earlier will, and who so declares his intention, has no effect to revive his earlier will unless there is a re-execution or re-publica- tion as contemplated by the statute.^^^ §273. Effect of revocation of later instrument — American rule. In the United States, in the absence of a statute on this sub- ject, the decisions are by no means uniform. The better line of authority made a distinction between the cases where the later will contained an express revocation clause, and where it was merely inconsistent with the earlier will. "There seems to have been material distinction, and on good ground, between the state of a former will after second one merely inconsistent with it, and its state after a second one with a declaration expressly revoking it. In the first case the only chance for the second to operate in revocation of the first, according to the prevalent theories of the courts, was by its coming to a head as an active will, which it could do only by surviving its author. Being the last expression of the decedent, and at the same time practically inconsistent with the prior one, the intent to repeal the first by it was to be implied. In case, however, of its being recalled by the tes- tator in his lifetime, it could not, on the theory referred to, be taken to have had the effect to do away with its predeces- 150 Major v. Williams, 3 Curt. Ecc. 432; James v. Cohen, 3 Cure. Ecc. 432 ; James v. Cohen, 3 Curt. Ecc. 770 ; Dickinson v. Swatman, 30 Ecc. 770; Brown v. Bro^\^^, 8 El. & L. J. P. 84; Wood v. Wood, L. R. Bl. 876; Dickinson v. Swatman, 30 1 P. 309; Goods of Hodgkinson L. J. P. 84; Wood v. Wood, L. R. (1893), P. 339; In re Brown, 4 Jur. 1 P. 309. N. S. 244. 161 Major V. Williams, 3 Curt. LAW OF WILLS. 305 sor Being cut off before having its disposition of property awlkened into life it could have no ^^affirmative operation through its dispositions upon the estate." ^^^ Where such distinction is recogiiized, the destruction of a later will inconsistent with an earlier will, but containing no clause of express revocation, revives the first will.^^=^ Where the second will contains a clause of revocation, it is held m numy jurisdictions in the United States, in accordance with the distinction already given, that the destruction of the sec- ond will does not revive the first.^^^ But even in states holding the contrary view the unauthorized destruction by another than testator of a will containing a clause of revocation, does not revive the first will.^^^ 152 Scott V. Fink, 45 Mich. 241, quoted and followed in Cheever v. North, 106 Mich. 390. 153 Knox V. Knox, 95 Ala. 495; Peck's Appeal, 50 Conn. 502 (dis- tinguishing James v. Marvin, 3 Conn. 576) ; Dawson v. Smith, 3 Houst. (Del.), 92; Colvin v. War- ford, 20 Md. 357 ; Cheever v. North, 106 Mich. 390; Johnston's Will, 69 Hun, 157; Lawson v. Morrison, 2 Dall. (Pa.) 286; Jones v. Murphy, 8 W. & S. (Pa.) 275; Flintham v. Bradford, 10 Pa. St. 82; McClure V. McClure, 86 Tenn. 173; Pringle V. McPherson, 2 De Saus. 524. Contra, Hartwell v. Lively, 30 Ga. 315. 154 James v. Marvin, 3 Conn. 576; Barksdale v. Hopkins, 23 Ga. 332; Scott v. Fink, 45 Mich. 241; Stevens v. Hope, Mich., 17 N. W. 698; Bohanon v. Walcot, 1 How. (Miss.), 336; Beaumont v. Keim, 50 Mo. 28; Lane v. Hill (N. H.), (1895), 44 Atl. 393; Hawes v.. Nicholas, 72 Tex. 481; Pickens v. Davis, 134 Mass. 252; Williams v. Williams, 142 Mass. 515; Marsh v. Marsh, 3 Jones L. (N. Car.), 77. Contra, Linginfetter v. Linginfet- ter, 1 Hardin (Ky.), 127; Randall V. Beatty, 31 N. J. Eq. 643; Taylor v. Taylor, 2 Nott & McC. (S. Car.), 482 ; Bates v. Holman, 3 Hen. & M. (Va.), 502. In these cases a revo- cation of a later will containing an express clause of revocation re- vives the entire will. In Peck's Appeal, 50 Conn. 562, it was said in an obiter, to be prob- ably the weight of authority in the United States, that the revocation of a will containing a clause of express revocation, of itself re- vived an earlier will. The reason given for this view was that under modern statutes a will could not be revoked by an informal writing, as in James v. Marvin, 3 Conn. 576; but by no later instrument but a will; and an instrument executed as a will, but revoked before testa- tor's death, could not be called a will within the meaning of the statute. The court cited as par- tially supporting this view Hyde v. Hyde, 3 Chan. Rep. 155. Reid v. Borland, 14 Mass. 208 ; Laughton v. Atkins, 1 Pick. 535. 155 Day V. Day, 2 Gr. Ch. (3 N. J. E.), 550. 306 LAW OF WILLS. This holding rests on the theory that upon the execution in due form of a will containing a clause of express revocation the first will is absolutely and immediately revoked. To give it validity by the revocation of the second will might be to al- low the first will to be made of force and effect, without the execution and attestation required by the Statute of Wills. As is indicated by the note this distinction is not recognized by all the courts. In some states it was held that in no class of wills did the revocation of the second effect a revision of the first; in others, that in all cases of wills a revivor might be thus effected. §274. Effect of revocation of later instrument American statutes. In the United States this subject has been to a considerable extent modified by statutes, which may be divided into two general classes. The statutes of the one class declare that the revocation of the second will shall revive the first only in case it shall appear from the terms of the revocation that it was the intention of testator to revive it. Such statutes affect at least the rule of presumptions arising from the revocation of the revoking will, and require evidence of testator's inten- tion to revive the first will, over and above the mere act of revoking the second will. In some states parol evidence is not excluded, that is, the testator by his mere declarations may revive the first will.^^^ Where the statute expressly provides that the destruction of the second will shall revive the first only when such ap- pears to be testator's intention from the terms of the revoca- tion, the better view is that such intention does not appear from the mere fact that at testator's death the second will can not be found.^^'^ 156 Williams v. Williams, 142 is? Kern v. Kern (Ind.), (1900), Mass. ,515; Pickens v. Davis, 134 55 N. E. 1004; Williams v. Wil- Mass. 252; Marsh v. Marsh, 30 liams, 142 Mass. 515: So McClure L. J. P. 77. V. McClure, 86 Tenn. 173. LAW OF WILLS. 307 In a recent New York case a statute of this class was care- fully analyzed. It was held that the clause providing for a revivor in case it so appeared by the terms of the revocation, applied to revocation only by an instrument in writing; and that if the will was revoked by a later will or codicil, the other clause of the statute applied and testator must duly re- publish his first will in order to revive it.^''*® Another class of statutes follows the statute of 1st Victoria in substance, and provides that the first will in such a case can be revived only by a re-execution of some sort, with the formalities required by the Wills Act. Under such statutes the testator can not revive his first will by any declarations, no matter how explicit. ■'^^ §275. Conditional revocation. — In general. As a will may be executed to take effect only upon certain conditions, so an act of revocation may be made to take effect only on the performance of certain conditions. This statement applies to revocation by act manifest upon the instrument, and to revocation b}' a subsequent will, codicil, or other instrument in writing; since revocation by these methods exists only when testator intended to revoke and manifested his intention in some manner indicated by the law. It does not apply to revocation by act of the law, such as revocation by changes of testator's circumstances, or revocation by alteration of testator's estate. This doctrine, known as that of conditional revocation or dependent relative revocation,^ ^^ is recognized in many juris- dictions, and may be stated in this form. If the revocation is of a class in which testator's intention to revoke is essential, and 158 Stickney's Will, 101 X. Y. 42. In re Lones, 108 Cal. 688; Wolf v. (Accordingly the oral declarations Bollinger, 62 111. 368; Stewart V. of testator made to persons who Mulholland, 88 Ky. 38 : Beaumont were not attesting witnesses can v. Keim. 50 Mo. 28 ; Beaumont not serve as a revivor of the first , Rodes, 29 Gratt. (Va.), 147. will, no matter how clear testator's leo Eggleston v. Speke, 3 Mod intention may have been.) 259; Semmes V. Semmes, 7 H. & J. 159 Barker v. Bell, 49 Ala. 284; (Md.), 388. 308 LAW OF WILLS. testator's intention is in fact conditioned upon a certain state of fact, there is no revocation if such state of fact does not exist.i«i §276. Conditional revocation by act manifest on instrument. The doctrine of conditional revocation applies where the act required by state was done, but testator's intention to revoke depended on the supposed existence of certain facts which prove not to have existed. Cancellations and erasures are often made by testator for the purpose of writing in other M'-ords to alter his will. The modern rule is that these altera- tions are invalid where the will is not re-executed after it is altered.^ ^'^ The question is, What effect shall be given the cancella- tion or erasure thus made by testator? Testator intended his act of erasure to operate as a partial revocation at least; but only on condition that the alterations made by him shall stand as his will. Accordingly, even where partial revocation is rec- ognized, it is held that a cancellation, solely for the purpose of interlineation or alteration, does not operate as a revoca- tion.^^? So where testator tore out and destroyed one page of his will, with intention to substitute another page for the one torn out, and the substituted page failed because the will was not re-executed after the substitution, it was held that the page torn out was not to be regarded as revoked, the condition upon which testator meant to revoke having failed.^ ®^ Where testator cancelled a part of his will, in order to sub- stitute an interlineation which failed of effect, it was held that as the revocation was conditional, and the condition failed, leiEggleston v. Speke, 3 Mod. P. 79; L. R. 3 P. 94; 29 L. T. 249; 259; Onions v. Tyrer, 1 P. Wms. Hesterherg v. Clark, 166 111. 241; 343; Goods of James, 19 L. T. 610; Camp. v. Shaw, 163 Til. 144 Aflf. 52 Burns v. Travis, 117 Ind. 44. 111. App. 241; Doane v. Hadlock, "2 See See. 2,54, 258, 260, and 42 Me. 72; Varnon v. Varnon, 67 Chapt. XV. Mo. App. 534. 163 Goods of Nelson, Ir. R. 6 Eq. i64 Varnon v. Vamon, 67 Mo. 569 ; Brooke V. Kent, 3 Moore, P. C. App. 534. 334; Goods of McCabe, 42 L. J. LAW OF WILLS. the intent to revoke the cancelled clanses was lacking.^ <^^ So where a part of the will is erased as a part of an attempted re-execution, snch erasure not being done animo revocandt, does not revoke the w'AV Or where testator revokes his will in order to execute another which fails of effect, the first will being conditionally revoked is held not to be revoked on failure of the condition ;i«'^ and this rule has been enforced ' where the later will failed because it was not duly executed.|"« But where the act done upon the will is intended as a finality for the time being, the revocation is complete, even though testator intended to execute another will in the future,^ and performed the act of revocation as a preliminary thereto.^^^ §277. Conditional revocation by later instrument. The principles of conditional revocation are as applicable to revocation by a later will as they are to revocation by some specified act evident upon the mil. If the testator revoked the prior will conditionally upon the existence of a certain state of facts or upon the validity of a subsequent bequest, 165 Wolf V. Bollinger, 62 111. 308. Sewall v. Robbins, 139 Mass. 1G4; Contrary to the weight of authority Stickney v. Hammond, 138 Mass. is the view expressed in Wilson's 116; Wilbourn v. Shell, 59 Miss. Will 8 Wis 171, to the effect that 205; Gardiner v. Gardiner, 65 N. an unexplained alteration would H. 230; 8L. R. A. 383; Pringle v. avoid the will. McPherson, 2 Desaus, 524; Stover 166 /n re Kennett, 2 N. R. 461; v. Kendall, 1 Cold. (Tenn.) 55/; Goods of Applebee, 1 Hagg. 143: Carpenter v. Miller, 3 W Va 174. Wilbourn V. Shell, 59 Miss. 205; "s Scott v. Scott, 1 Sw. & Ir Frear v. Williams, 7 Baxt. (Tenn.), 258; 5 Jur. (N. S.), 298; Goods of ggQ Middleton, 3 Sw. & Tr. 583; 34 L. leiGoods of Cockayne, Deane, J. P. 16; 10 Jur. (N. S.), 1109; 11 Ecc. R. 177; 2 Jur. (N. S.) 454; 4 L. T. 684. W R 555 ; Powell v. Powell, L. R. !«» Dickinson v. Swatman, 4 bw. 1 P 209 • 35 L J. P. 100 ; 14 & Tr. 205 ; Goods of Mitehelson, 32 L t'sOO; Dickinson V. Swatman, 4 L. J. P. 202; Olmsted's Estate, S &T. 205; Dancer v.Crabb, 42 L. 122 Cal. 224; Youse v. For- J P 53- L R 3 P. 98; man, 5 Bush, (Ky.) 337; Town- 08 l't 914- Doe v. Evans, 10 send v. Howard. 86 Me. 285 ; Brown Ad & EI 228; Dunham v. Averill, v. Thorndike, 15 Pick. (Mass.), 45"conn. 61; Mendenhall's Appeal, .388; Banks v. Banks, 65 Mo 4J3 2 ; 124 Pa St 387- 23 W. N. C. 379; Skipwith v. Cabell, 19 Gratt. <58. 310 LAW OF V/^rLLS. such revocation is of no effect unless the conditions are com- plied with.^''^*^ Thus where a testator had executed two wills, and by codicil revoked the first, and declared the second to be his last will if he should die on or after a given date, but if he should die before such date his second will was revoked, and his first executed will was to be his last will and testa- ment, full force was given to such codicil.^^^ The difficulties in this branch of the law lie in determining what forms of expression indicate a conditional revocation, and what an absolute one; and also in determining what evi- dence may be adduced to show this intention. If the second will is invalid either by reason of defective execution, or through lack of capacity of testator to make a valid will, the revocation clause is also invalid, and the first will is not affected thereby in any way.^^^ And of course an invalid codicil has no effect to revoke any part of the will to which it is meant to be appended.^ "^ Testator may revoke his prior will by a later one, which contains a clause of absolute revocation and is properly ex- ecuted, but which by reason of something outside the will is ineffectual to pass the property sought to be devised. This differs from the cases where the second instrument contains a revoking clause and nothing more, for in the cases under consideration the instrument contains a revoking clause and a dispositive portion which fails of effect. The question is whether the revoking clause is conditioned upon the validity of the dispositive part or not. The general rule upon this point is that "a second will inconsistent with the first, perfect 170 See ca-ses cited in this section. St.; 12 Atl. 1026; Price v. Maxwell, 171 Hamilton's Estate, 74 Pa. St. 28 Pa. St. 23 ; Rudy v. Ulrich, 69 69; Bradish v. McClelland, 100 Pa. Pa. St. 177; Reese v. Ct. of Probate, St. 607. 9 H. I. 434; /,j re Noyes, 61 Vt. 172 Caeman v. Van Harke, 33 14; Domer v. Seeds, 28 W. Va., 113; Kan. 333; Breathitt v. Whittaker, In re Fisher. 4 Wis. 2.54. 8 B. Mon. (Ky.) 530; Hollings- "3 Kirke v. Kirke, 4 Russ. 43.5; head v. Sturgis, 21 La. Ann. 450; Boylan v. Meeker, 28 N. J. L. Colvin V. Warford, 20 Md. 357; 274; Austin v. Oakes, 117 N. Y. Reid V. Borland, 14 Mass. 208; 577; Delafield v. Parish, 25 N. Y. Laughton v. Atkins, 1 Pick. 9; Heise v. Heise, 31 Pa. St. 246. (Mass.), 535; Jacoby's Estate, Pa. LAW OF WILLS. 311 in form and execution, but incapable of operating as a^ will on account of some circumstance deJiors the instrument," re- vokes the first instrument, where the second contains a clause of express revocation.^ ^'* The revoking instrument may recite certain facts as the reason for the revocation. If these facts are not true the ques- tion arises as to the effect upon the clause of revocation. The general rule is that if the facts are so recited that tlie revoca- tion is based entirely upon them and conditioned upon their existence, the prior will is not revoked, if the facts recited are not true.^^^ Thus in an early and leading case a gift to cer- tain grandchildren was revoked, "they being all dead," though in point of fact they were living. It was held that the revoca- tion clause did not take effect.^ ^^ A possible exception to this rule exists where the fact is one peculiarly within the knowledge of testator, and within his power to accomplish. Thus, where testator revoked a bequest 174 Laughton v. Atkins, 1 Pick. (Mass.), 535. To the same effect are James v. Marvin, 3 Conn. 576; Barksdale v. Hopkins, 23 Ga. 332; Burns v. Travis, 117 Ind. 44; Col- vin, V. Warford, 20 Md. 357; Vin- ing V. Hall, 40 Miss. 83; Hoffner's Estate, 161 Pa. St. 331; Price v. Maxwell, 28 Pa. St. 23; Boudinot v. Bradford, 2 Dall. 266; Carpenter v. Miller, 3 W. Va. 174. The case of James v. Marvin is treated in Connecticut as being no longer a precedent, and the doctrine just given in the text is attacked in a recent case. Security Co. v. Snow, 70 Conn. 288: see also Peck's Appeal, 50 Conn. 562. In the case of Security Co. V. Snow, supra, the codicil ex- pressly revoked a former gift to A and bequeathed such gift to B in trust for A, with discretionary power to B; and on A's death to A's heirs. Under the Connecticut law the limitation to A's heirs was void for remoteness, and on B's death, the discretion being personal, no trustee could be appointed to act. It was held that the revocation clause of the codicil must be treated as conditional upon the validity of its dispositive provisions; and on their failure in part, the gift passed to A absolutely. This view of the law treats the codicil in effect as if it contained no revoking clause, but as if it revoked by implication merely; and it is subject to the ob- jection that it ignores the express wishes of the testator that the gift should be revoked, and enforces his conjectured wish that the will should stand in so far as the codicil failed of effect. 175 Campbell v. French, 3 Ves. Jr. 321 ; Doe v. Evans, 10 Add. & El. 228; Mendinhall's Appeal, 124 Pa. St. 387. i7fi Campbell v. French, 3 Ves. .Tr. 321. 312 LAW OF WILLS. on the ground that he had 'given' the beneficiary certain prop- erty, which had in fact been transferred, but as a sale, and not as a gift;^" or where testator revoked a legacy because he had provided the legatees with a permanent home, when in fact he had not done so, it was held that in each case the revo- cation clause took effect, the matter being one over which testator had full control, and of which he had full knowl- edge.^ '^^ Where the revoking clause is based upon a mistake of law a^ to the legal effect of the will, the courts seem disposed to treat this as a conditional revocation, ineffective if condi- tioned on the correctness of a mistaken belief.^ ^'^ But where the facts recited are not the conditions upon which the will is revoked, but merely accompanying circumstances, their fals- ity can not affect the revocation. If the facts recited are clearly such as could not cause the revocation, or if it ap- peared that the testator was content to act upon his under- standing of them without regard to the ultimate fact of their truth or falsity, the revocation will take effect in any event.^^^ Where the testator revoked a legacy to certain beneficiary, reciting his reason as ''I do not know whether any of them are alive and if they are well provided for,' the revocation was held to be an absolute one.^^^ Where a testator had devised a piece of land to a son, and in a codicil recited that he had sold such land, and revoked the devise to such son, it was held that the revocation was absolute and operated, though testator had not in fact sold the land.182 If the clause of revocation is absolute in form, the fact that it was caused by a mistake of testator upon a material fact 177 Mendinhall's Appeal, 124 Pa. Lloyd. 3 Atk. 551; Giddings v. St. 387. Giddings: 65 Conn. 149; Morde- 178 Hayes v. Hayes, 21 N. J. Eq. cai v. Boylan, 6 Jones Eq. (N. 265. Car), 365; Skipwith v. Cabell, 19 179 Barclay v. Maskelyne, 4 Jur. Gratt. (Va.), 785. N. S. 292. 181 Attorney General v. Ward, 3 180 Campbell v. French, 3 Ves. Ves. Jr. 327. Jr. 321; Doe v. Evans, 10 Ad. & i82 Giddings v. Giddings, 65 Ell. 228; Attorney General v. Conn. 149. 313 LAW OF WILLS. does not prevent the revocation from taking effect."= If this t'e not the la., a formal written revocation executed m dne form by a competent testator conld be overthrow by parol, clearly "a most nndesirable state of the law. §278. Kevocatlon hy alteration of estate.-At common law and equity. At common law a will devising real property was revoked entirely by an alteration in testator's estate in all the realty devised, and pro tanto by an alteration of testator's estate rn part of the real property devised.'" If the en rre rea ly devised by a will which devised only realty, were ^bsequently convft'ed. the will was entirely revoked thereby It" not necessary that the deed conveying all of testators realty be recorded in order to operate as a revocation of tes- '^WherTall of testator's realty is conveyed after the execu- tion of a will devising only real estate, the revocation of the will is so complete that the deed may be pleaded as a revo- cation at probate."' , i ■ j ,i;j „„t A conveyance of a part of the property devised did no however, work a total revocation, but only revoked the will as far as the property conveyed was concerned.'- A will dis- ,., Dunham V. -^^vevill. 4.5 Conn. 246; Mullock ■••/»""<■'■%!'•* „ , ., o R T c|^.:T^oIL Zl S. 3..; Bailie., App. 14 Pa. S. Skipwitl, V.Cabell. 19 Gratt.(Va.), 451.^^^^^ ^^ ^^^^^ ^^ ^^ ^^^ ''L GooOtitle V. Otway.^ 2 H. Bl. Bowen v. .To„nso„ 6 Ind. UO; Co.- TT If A Q Voc Tr hm V. Smith. 89 Va. Zo». 5,6, Cave v. HoHo.- Warren v. Taylor. 5b lo. lo-, ^ T \ Tn 2 RIO- Don- Hawes v. Humphrey, 9 Pick. 350; Borden v Borden. 2 B I. 94 Do Edminster. 9 Pick, (note), ohoo V. Lea^l S^" '^^^ "^j;^ . 35G / Webster v. Webster, 105 Mass. Bowen v. Johnson 6 Ind 110 Terry ^^^^^^^,,, Appeal, 77 Pa. St. V. Edniinst.r, Pick, not^) , 6 5 8 P^^^_^^^^ P^^^ ^^ ^^ ^^ Hawes v. Humphrey, 9 Pick 350 , ^ ^^^^^^^^^ 3^ ^ ^^^. Cozzens v. Jamison, 12 Mo. App. 252; Skerrett v. Burd, 1 Whart. 21. 314 LAW OF WILLS. posing of realty and personalty is not revoked by a convey- ance of all the realty.^ ^^ This rule at common law rested upon the principle that testator by a devise of his property could dispose only of the real property then owned by him ; while after-acquired prop- erty could not be devised, but passed to the heirs. As we have seen, this was the result of the common law theories of seisin.^ ^" PTeiice, if testator after making his will altered his estate in such a way as to divest himself of the seisin, even for a short time, his new estate in the .property was looked upon as an after-acquired estate, and could not pass by will. To make a valid devise, testator had to be seized at his death of the same estate that he was seized of at the date of the will.^^^ Thus a tax sale operates as a revocation.^ ^^ So a conveyance of realty in fee, reserving a ground rent, operates as a revocation as to such realty, and the ground-rent does not pass by such will.^^^ Thus the renewal of a lease to testator after his making his will revoked it as to such land,^^'* If the testator parted with his land by an instrument, whereby title instantly revested in him, the will was re- voked,^ ^^ or by an instrument which conveys the legal title, though equity might set it aside, or hold the grantee as a trustee for the grantor on account of fraud. ^^^ So a convey- ance of the equitable estate, testator retaining the legal title, as by a valid contract to convey real estate, enforceable in equity, revoked a prior devise of such real estate, even where 189 Kent V. Mahaffey, iO O. S. 204. i93 Skerrett v. Burd, 1 Whart. 190 See Sec. 142. (Pa.), 246; Mullock v. Souder, 5 191 Marwood v. Turner, 3 P. Wms 103 ; Knollys v. Alcock, 5 Ves 648; Vawser v. Jeffrey, 16 Ves. Jr 519; Bennett v. Tankerville, 19 Ves 171 ; Parker v. Lamb, 2 Vern. 495 Walton V. Walton, 7 Johns. Ch 258; Adams v. Winne, 7 Paige, 97 Skerrett v. Burd, 1 Whart. 246; Borden v. Borden, 2 R. I. 94. 1 ; Hick v. Mors, Ambl. 215. 192 Borden v. Borden, 2 R. I. 94. W. & S. (Pa.), 198. 194 Marwood v. Turner, 3 P. Wms. 163. 195 Cave V. Holford, 3 Ves. Jr. 653 Contra, Woolery v. Woolery, 48 Ind. 523. 196 Simpson V. Walker, 5 Sim. 315 LAW OF WILLS. such contract was afterwards rescinded.-^ However, convey- a^c s n bankruptcy or to pay testator's debts were no. held revoke his will Is to any property that niightrema.n after the purpose of such conveyance had been accomplished/- and vl ere testator had an equitable estate in the property dev.sed :hich he retained unaltered, the change of legal title from one trustee to another did not revoke the will^_ So where testator retained a part of his estate m the real property unaltered, the will was not entirely revoked as to such property by the creation of a particular estate m such property,' asVere testator having devised a fee in ceHain realtv afterward granted a life estate therein. The will as to such property was still good to pass the reversion, though o. course it co'uld not aifect the life interest.- So a ease for years did not operate as a revocation of a devise of the realty ^'T^l^rrtition was not such alteration of estate as revoked a devise of testator's estate therein prior to partition. An in- effective attempt to execute a conveyance has never been held to amount to a revocation;-^ and still less has a change m the value of testator's property, the title remaining un- chano-ed;-^ nor does a sale of a part of the realty devised and the incurring of debte to such an extent that the residue of the realty must^be sold, of itself operate as a revocation of the will.^^"^ However, it was said in an early case that where tes- .9T Mayer v. Gowland, Dick. 563; -o Parker v. Lamb 2 Vern. 495^ Knollys v. Alcock, 7 Ves. Jr. 558 ; ==- Zimmerman v. Zimmerman, 23 Curre v. Bo^vTer, 5 Beav. 6; Dono- Pa. St. 3<5. hoo V. Lea, 1 Swan (31 Tenn.) 202 Luther v. Kidby, 3 P. Wms. Ill 169n; Attorney General v. Vigor, i98Vernon v. Jones, 2 Freem. 117; 8 Ves. Jr. 281. Temple v. Chandos, 3 Ves. Jr. C85 ; ^o^ Bennett v. Gaddis, 79 Ind^347. i! pv^.r^nn UVes Jr 204 Webster V. Webster, 105 Mass. Charman v. Charman, l* ves. ui. 580; Jones v. Hartley, 2 Whart. 538; Verdier v. Verdier, 8 Rich. (S. iVa ) 103 Car.), io5. lo'o Parsons v. Freeman, 3 Atk. 205 Wogan v. Small, H S- & R- 749; Seaman v. Woods, 24 Beav. 141; Marshall v. Marshall, 11 Pa. 372. St. 430. 316 LAW OF WILLS. tator had conveyed so much realty as to make it impossible to execute the provisions of the will, it would operate as a revocation of the entire will.^"^ A testament bequeathing personal property was not revoked by any subsequent alteration of testator's estate except in so far as the property bequeathed did not belong to testator at his death. Of course, property specifically bequeathed passed by testament only if testator owned it at his death p*^^ but in- asmuch as after-acquired personalty might pass by t-estament, the transfer of testator's entire personal estate after the ex- ecution of his testament did not revoke it.^^^ §279. Revocation by alteration of estate Modem statutes. The subject of revocation by alteration of estate is prac- tically obsolete at modem law. Nearly all the jurisdictions in which common law is in force have passed statutes to the effect that no alteration in the estate of testator in property devised or bequeathed shall effect a revocation of his will as to such, unless he is whollj^ divested of his interest therein, or unless in the instrument by which such alteration is made he declares his intention that it shall operate as a revocation of such previous devise.^^^ Under these statutes a conveyance of land in trust, so worded that the trust, as to part, was not declared, and ac- cordingly was a resulting trust for testator, did not revoke a previous devise of such land, further than as far as testator had ceased to oa^ti the same at his death, but the will took effect upon the resulting trust r^*^ nor does a conveyance in 206 Cooper's Estate, 4 Pa. St. 88. Paine v. Forsaith, 86 Me. 357 ; Coz- 207 See Sec. 135. zens v. Jamison, 12 Mo. App. 452; 208 See Sec. 141. Kent v. Mahaffey, 10 0. S. 204; 209 Slaughter v. Stephens, 81 Ala. Brush v. Brush, 11 Ohio, 287; For- 418; Welsh v. Powndes, 36 Ala. ney's Estate, 161 Pa. St. 209; 668 ; Powell v. Powell, 30 Ala. 697 ; Maul's Estate, 186 Pa. St. 477 ; Tillman's Estate, —Cal. — ; 31 Pac. Fuller's Estate, 71 Vt. 73; 42 Atl. 563; Giddings v. Giddings, 65 Conn. 981. 149; Swails v. Swails, 98 Ind. 511; 210 Brush v. Brush, 11 O. 287. Belshaw v. Clitwood, 141 Ind. 377; LAW OF WILLS. 317 trust for the devisee effect a revocation.^^^ And a contract by testator, made after the execution of his will, to sell cer- tain realty devised by such will, does not of itself revoke such win.212 A contract to sell land followed by a change of possession, and part payment did not of itself revoke the devise. Ac- cordingly, when the contract of sale was rescinded after tes- tator's death, the realty passed by will.^^^ ISTor does a sale of realty revoke the will by which it is devised, where part of the purchase price remains unpaid, unless the intention to revoke appears from an instrument in writing.^^'* And where an oral contract for land has been folloAved by change of pos- session, such facts afford no ground for treating the will as revoked, though they may be the basis for an action against the devisees to obtain title to the realty.^^^ Where testator by will created a trust for controlling a news- paper which he owned, together with the rest of his estate, the sale of the newspaper did not effect a revocation of the will.^^'^ And a statement by one who was about to enter a home for the aged that he had no property, together with a contract on his part to transfer to tlie home any property that he should subsequently acquire, has no effect as a revocation of a will previously made by such person.^^''' And where the will is intended to pass after-acquired property, and does so under the law in force, a subsequent conveyance of testator's entire property by a trust deed reserving the power of revok- ing the trust, is of itself no revocation of the will;^^^ and a receipt given by a son and devisee of testator to testator for money advanced on his share under the will, does not of itself effect a revocation of the will.^^^ 211 Brush V. Brush, 11 Ohio, 287; Wright v. Minshall, 72 III. 584; Clingan v. Micheltree 31 Pa. St. Lefebrve's Estate, 100 Wis. 192. 25. 215 James v. Sutton, 36 Neb. 393. 212 Hall V. Bray, Coxe (N. J.), 216 Forney's Estate, 161 Pa. St. 212; Lefebrve's Estate, 100 Wis. 209. 192. 217 Maul's Estate, 186 Pa. St. 477. 213 Fuller's Estate, 71 Vt. 73;. 218 Morey v. Sohier, 63 N. H. 42 Atl. 981. 507. 214 Slaughter v. Stephens, 81 Ala. 219 Burnham v. Comfort, 108 N. 418; Powell v. Powell, 30 Ala. 697; Y. 533; 37 Hun, 316. Welsh V. Powndes, 36 Ala. 668 : 318 LAW OF WILLS. Under these statutes an invalid deed does not effect a revoca- tion of a prior will,^^^ unless (under some statutes) it further manifests a clear intention to revoke the will absolutely. A mortgage does not operate as a revocation,^^^ even if it is a mortgage to the devisee.^^^ The distinction has been suggested that a deed, executed by one who is a competent testator, with intent to revoke his will in whole or in part, operates as a revocation even if it fails as a deed for some defect in form ; but if made by one who is incompetent, mentally, or who is induced to execute the deed by reason of fraud or undue influence, it does not operate as a revocation.^^^ But even under modern statutes a conveyance of the entire estate of testator in the property devised acts as a revocation of a will previously executed, as far as specific bequests and de- vises given by such will are concerned. Still some authorities hold, however, that even a deed of testator's entire property can not act as a revocation of a will previously executed, so as to prevent probate, as property rights can not be finally determined in a proceeding to probate the will.^^^ §280. Revocation by change of circumstances. — In general. Both at common law, and under modern statutes, certain specified changes in the status, or in the family relations of testator, or testatrix, revoked any will executed before such change. The changes, which effected revocation, as will be seen later, were specifically enumerated at the common law or in the statutes, and no others can have this effect. Occasionally it has been said in obiter dicta, that any change in circumstances which creates new moral duties operates as a revocation.^^^ 220 Bennett v. Gaddis, 79 Ind. 347. 224 Tillman's Estate, — Cal. — ; 221 Stiibbs V. Houston, 33 Ala. 31 Pac. 563; James v. Sutton, 36 555; McTaggart v. Thompson, 14 Neb. 393; Morey v. Sohier, 63 N. Pa. St. 149. H. 507. 222 Baxter v. Dyer, 5 Ves. Jr. 225 Morgan v. Ireland, 1 Ida. 7.S6; 656; McTaggart v. Thompson, 14 Young's Appeal, 39 Pa. St. 11."). Pa. St. 149. 223 Graham v. Burch, 47 Minn. 171. LAW OF WILLS. 319 In its literal form this doctrine would evidently be so far- reaching as to apply to most wills which had been executed any length of time. The cases in which it appears as an obiter can all be reduced to one of the well-defined classes to be given. But the actual decisions have never gone to this ex- tent. On the contrary, they recognize specific sets of changes in circumstances which effect a revocation of the will, and de- ,cline to recognize any others.^-*^ The theory underlying the doctrine of revocation by change of circumstances was originally that the testator must be pre- sumed, in view of the change, to have desired a different dis- position of his property from that indicated in his will. While this was the theory, the rules of revocation were absolute, and were not changed in cases where it could be shown affirma- tively that the testator did not wish or intend the revoca- tion.227 §281. Effect of marriage on will of husband. — Common law and statute. At the common law the will of a man was not revoked by his subsequent marriage alone, without birth of children. The reason generally given for this rule was that as the wife could not, under the laws of descent, inherit from the husband, she would not be benefited by the revocation of the will; and there was no reason for making the marriage act as a revocation of the will for the benefit of the collateral heirs of the husband. This being the accepted reason for the rule, the modern statutes of descent which do not in terms deal with wills, but which provide that if a husband dies intestate, and without issue, the wife shall inherit part or all of his property, pre- sent an interesting question. Such statutes destroy the reason 226 See Sec. 285. as it exists if this can be proved, or 227 Brown v. Clark, 77 N. Y. 369; as the Law presumes it to be in the Hale V. Hale, 90 Va. 728. absence of proof, still finds expres- The old theory that the revoca- sion in some cases. Miller v. Phil- tion rests upon testator's intention lips, 9 R. I. 141. 320 LAW OF WILLS. generally given for the common law rule. Do tliey destroy the rule? Some jurisdictions hold that they do. Where the testator dies without issue, such courts hold that a will ex- ecuted prior to his marriage is revoked ; but where testator has issue by a prior marriage, the will is not revoked, as in no case would the widow be benefitted by its revocation.^^^ In other states it is held that such a statute has no effect of any sort upon the law of wills, and that marriage alone does not revoke the will of the man.^-'' In some states it is espe- cially provided by statute that a will is revoked by the sub- sequent marriage of testator. Some of these statutes provide that an exception shall exist if such will was expressly made in contemplation of marriage.^^^ Where the statute contains no exception, the fact that the will was made in contemplation of marriage does not prevent such marriage from revoking it.^^^ These statutes are constitutional, even where the constitu- tional requirement that each statute must be upon one subject clearly expressed in its title, is held mandatory, and the statute is called a statute of descent.^^^ And where such statute is in force, the fact that after the marriage the husband and wife separated under an agreement does not prevent revoca- tion of the will by the marriage.^^^ Such statutes are usually so worded as to apply only where the marriage was contracted 228 Sherrer v. Brown, 21 Colo. 481, Ellis v. Darden, 86 Ga. 368; Hud affirming 5 Colo. App. 255; Tyler nail v. Ham, 172 111. 76; 183 111 V. Tyler, 19 111. 151; American 486; Sloniger v. Sloniger, 161 111 Board v. Nelson, 72 111. 564; Dur- 270; Crum v. Sawyer, 132 111. 443 yea v. Duryea, 85 111. 41 ; Swan v. Biggerstaff v. Biggerstaff, 95 Ky Hammond, 138 Mass. 45; Garrett v. 154; Ransom v. Connelly, 93 Ky Dabney, 27 Miss. 335. 63; Stewart v. Powell, 90 Ky. 511 229 Goodsell's Appeal, 55 Conn. Swan v. Sayles, 165 Mass. 177 171; Bowers v. Bowers, 53 Ind. Ingersoll v. Hopkins, 170 Mass 430 ; Hulett's Estate, 66 Minn. 327 ; 401 ; 49 N. E. 623 ; 40 L. R. A 34 L. R. A. 384; Hoitt v. Hoitt, 191. 63 N. H. 475; 56 Am. Rep. 530; 231 Pransen's Appeal, 26 Pa. St, Mundy v. Mundy, 15 Ohio C. C. 202; Walker v. Hall, 34 Pa. St, 155. 4S3. 230 Corker v. Corker, 87 Cal. 643; 2.-?2 Hudnall v. Ham, 172 111. 76 GoodseH's Appeal, 55 Conn. 171; 233 Corker v. Corker, 87 Cal. 643 LAW OF WILLS. ^^■'■ after the statute took effect.-^'' But the statute applies to a will made before the passage of the statute, where the mar- riage follows the passage of the statute.^^^ Under statutes which provide that marriage does not revoke a will made in contemplation of marriage, the fact that mar- riage was contemplated must appear from the will itself. 2=^*^^ Where a testator devised all his property to "a certain sin- gle woman," naming her, and making her executrix without bond, and a year afterwards married her, it was held that by force of the statute the will was thereby revoked; and the fact that they were engaged to be married at the time that the will was made (such fact not appearing on the will) did not prevent the revocation, as the statute only excepted cases where the fact that the will was made in contemplation of marriage appeared from the will itself.-" And even when the mar- riage takes place a very short time after the execution of the will, it can not be held to be made in contemplation of mar- riage unless such intention appears on the face of the will itself. 2^* So where a man makes a devise to a woman who is living with him as his mistress,^^^ or who has been married to him by a marriage invalid in law,^^*^ and subsequently marries her, such marriage revokes the will. A valid ante-nuptial contract whereby the wife releases all claims against the husband's estate, for a valuable considera- tion, bars the wife from claiming that the husband's will, ex- ecuted before marriage, was revoked by marriage.^^^ 234 Swan V. Sayles, 165 Mass. 177. 11 L. R. A. 51; Goods of Russell, 235 ino-ersoll v. Hopkins, 170 L. R. 15 P. D. 111. Mass. 401; 40 L. R. A. 191. 239 Gall's Will, 32 N. Y. S. R. 236 Ellis V. Darden, 86 Ga. 368; 695; 10 N. Y. Siipp. 661n. Swan V. Sayles, 165 Mass. 177 ; In- 24o Waiter v. Waiter, L. R. 15 gersoll V. Hopkins, 170 Mass. 401 ; P. D. 152. 40 L. R. A. 191. 241 Biggerstatt' v. Biggerstaflf, 95 237lngersoll v. Hopkins, 170 Ky. 154; Stewart v. Mulholland, Mass. 401 ; 49 N. E. 623, citing 88 Ky. 38 : Morton v. Onion, 45 Vt. and ' following Otway v. Sadlier. 145. See Ransome v. Connelly, 93 33 L. T. 46; Goods of Cadywold, Ky. 63; 14 Ky. Law Rep. 73; 18 1 Sw. & Tr. 34; Ellis v. Darden, S. W. 1029; Stewart v. Powell, 86 Ga. 368 ; 11 L. R. A. 51. (Ky.) 90 Ky. 511 ; 10 L. R. A. 57. 238 Ellis V. Darden, 86 Ga. 368; In this last case it was held 322 LAW OF WILLS. In other jurisdictions marriage of a testator is i^nma facie a revocation of Ms will, but this prima facie presumption may be overthrown by showing that the will was made in con- templation of marriage, or that testator Avished it to be in force, notwithstanding his marriage."'" 242 S282. Effect of birth of child on will of father.— Common law. At the common law the birth of a child alone did not re- voke the will made by its father after his marriage, and before the birth of a child as the offspring of such marriage, since after marriage he must have been presumed to contemplate the birth of children, and to make his will with reference thereto.^ ^^ §283. Effect of marriage and birth of child on man's will. At ecclesiastical law it was held that the marriage of tes- tator, and the birth of a child capable of inheriting his prop- erty and unprovided for, would together revoke a prior will, though neither of such facts taken by itself would have such effect. Tliis doctrine was finally adopted by the common law.2^* It was based by the courts upon the theory that if testator's attention had been called to his prior will, he would presumably have revoked it.^'*'^ When this change of circumstances was shown to have oc- curred, a presumption arose that testator intended to revoke his will. This presumption was, however, only a prima facie one, and might be rebutted.-'*'' that while the heirs of testator S. 10: R. R. v. Wasserman, 22 Fed. may claim revocation, the widow Rep. 872; McCullum v. McKenzie, can not, since, nnder the ante-nup- 26 lo. 510; Hoit v. Hoit, G3 N. tial contract, she would take the H. 475; Yerby v. Yei-by, 3 Call, same whether the Avill is upheld or 289. not. See Sec. 325. 24* Spraage v. Stone, 2 Ambler 242 Lant's Appeal, 95 Pa. St. 279 ; 721 ; Kenebel v. Scrafton, 2 East, Wheeler v. Wheeler, 1 R. I. 364; 530. Miller v. Phillips. 9 R. I. 141. 245 Brady v. Cubitt. Dougl. 31. 243 Wellinffton v. Wellington, 4 246 Brady v. Cubitt, Dougl. 31. Burr. 2165: Doe v. Barford. 4 M. & LAW OF WILLS. 828 In this country it has been adopted as settled law that the marriage of a man, and the birth of a child, both occurring sub- sequent to the execution of his will, will revoke such will.^^'^ The reason given for the rule b}^ modern authorities is rather that the law annexes to a will made by any man a condition that the will is not to take effect if he afterwards marries and has a child capable of inheriting his property.^""* In order to effect a revocation the child must not have been provided for in any way. Hence, it is held by some courts where the will does not pass the entire estate of testator, but leaves a substantial portion to descend, according to the laws of intestacy, that a provision is made for the child and the will is not revoked.^'*^ If, however, the will disposes of the entire estate of the testator, the fact tliat he subsequently acquired property which would not pass by the terms of the will, but would descend to his child, would not be such provi- sion as would prevent revocation.^^^ If the children born of the subsequent marriage are expressly provided for, either by the will or by an ante-nuptial settlement, the will is not of course revoked.^^^ 247 Gay V. Gay, 84 A^. 38 : San- ders V. Simcich, 65 Cal. 50; Good- sell's Appeal, 55 Conn. 171; Bel- ton V. Summer, 31 Fla. 139; 21 L. R. A. 146; Hart v. Hart, 70 Ga. 764; Shorten v. Judd, 60 Kan. 73; 53 Pac. 286; Baldwin v. Spriggs, 65 Md. 273; Warner v. Beach, 4 Gray (Mass.), 162; Lan- sing V. Hayues, 95 Mich. 16; Mor- gan V. Davenport, 60 Tex. 230; Wilcox V. Rootes, 1 Wash. (Va.), 140 ; Sneed v. Ewing, 5 J. J. Marsh. (Ky.), 460. 248 Marston v. Roe, 8 Ad. & EI. 14; Corker v. Corker, 87 Cal. 643; Hoitt V. Hoitt, 63 N. H. 498. Contra, Yerby v. Yerby, 3 Call (Va.), 289; apparently adopts the theory of the ecclesiastical law that the question is one of prima facie intention only, as do Sanders v. Simcich, 65 Cal. 50: Brush v. Wil- kins, 4 .Tohns. Ch. 506; Havens v. Van den Burgh, 1 Den. 27. These cases are not on their facts as diverse as would appear from the statement of the underlying theory; as the fact relied on to rebut the presumption of implied revocation is the provision for the child by way of settlement. 249 Doe V. Edlin, 4 Ad. & El. 582; Marston v. Roe, 8 Ad. & El. 14; Brady v. Cubitt, Dougl. 31. 250 Baldwin v. Spriggs, 65 Md. 273. 251 Gay V. Gay, 84 Ala. 38; San- ders v. Simcich, 65 Cal. 50; War- ner V. Beach, 4 Gray (Mass.), 162; Brush V. Wilkins, 4 Johns. Ch. 50C ;: Kurtz V. Savior, 20 Pa. St. 205: Fransen's Will. 26 Pa. St. 202; Phaup V. Wooldridge, 14 Gratt. (Va.), 332. 324 LAW OF WILLS. This common law rule that marriage and the birth of a child revoked testator's will has been enacted hj statute in many American states.^^^ §284. Effect of marriage on will of wife. — Common law and statute. At coimnon law the will of a woman was, ipso faeto, re- voked by her marriage. This rule was based upon the theory that the same degree of capacity was required to revoke a will as to make one; that a married woman not being able to make a will could not revoke one -made before marriage; and therefore, unless the marriage itself revoked the will, it would be irrevocable during coverture.^^^ This rule was very generally adopted as the common law rule in the United States,^^"* and has been re-enacted by statute in many states.^^^ In some states, on the other hand, this rule has been expressly repealed by statute.^"^*^ In other states where the statutes are silent as to the effect of marriage as a revocation of a woman's will, an interesting question is presented by the passage of statutes authorizing 252Nutt V. Norton, 142 Mass. 242; Swan v. Hammond, 138 Mass. 242; Blodget v. Moore, 141 Mass. 45; Lansing v. Haynes, 95 Mich. 75; Swan v. Hammond, 138 Mass. 16; Garrett v. Dabney, 27 Miss. 45; Edward's Appeal, 47 Pa. St. 335; Cotheal v. Cotheal, 40 N. Y. 144. 405 ; Fidelity Trust Co.'s Appeal, 253Forse v. Hambley's Case, 4 121 Pa. St. 1; Carey's Estate, 49 Coke, 60; Hodsden v. Lloyd, 2 Bro. Vt. 236; Vandeveer v. Higgins, Ch. 534: Doe v. Staples, 2 T. R. —Neb.—, 1899. 684. 255 Ellis V. Darden, 86 Ga. 368; "It is contrary to the nature of 11 L. K A. 51; McAnnulty v. Mc- the instrument which must be am- Annuity, 120 111. 26; Blodgett v. bulatory during the life of the tes- Moore, 141 Mass. 75; Swan v. Ham- tatrix, and as by the marriage she mond, 138 Mass. 45; McLarney v. disables herself from making any Phelan, 153 N. Y. 416; Craft's Es- other will, the instrument ceases tate, 164 Pa. St. 520; Hale v. Hale, to be of that sort and must be 90 Va. 728; Phaup v. Wooldridge, void." Hodsden v. Lloyd, 2 Bro. 14 Gratt. 332. Ch. 534. 230 Emery's Appeal, 81 Me. 275; 254Co1cord V. Conroy, 40 Fla. 97; Church v. Crocker, 3 Mass. 17: 23 So. 561: Cruni v. SawT^er, 132 Webb v. Jones, 9 Stew. (N. J.),163. IlL 443; Nutt v. Norton. 142 Mass. LAW OF WILLS. 325 married women to make wills. This evidently does away with the reason underlying the common law rnle, and the ques- tion is often presented whether it destroys the rule together with the reason. A majority of the courts hold that such a statute prevents the marriage of a woman from acting ipso facto, as a revocation of a prior wilh^^^ In a Delaware case it was held, recognizing the principle just stated but distinguishing the facts, that where the will was made before the passage of the act, and the marriage took place after, the will was revoked since the statute applied only to wills executed after its passage.^^s Under statutes where a married woman might make a will of realty, but not of personalty, marriage revoked the latter, but not the former.^^^ A minority of the courts adhere to the common law rule, and treat the marriage of a woman as a revocation of a prior will, where no statute specifically provides for such case.-^^ Where the statutes give a married woman the power to make a will, and also provide expressly that her marriage shall act as a revocation of a prior will, the statute on the subject of revocation is strictly construed. As it provides generally that the will of any 'unmarried woman' shall be revoked by a subsequent marriage, it includes the will of a widow made during her widowhood, where she afterwards remarries.^*'^ But it does not apply to a will made by a married woman 257Tuller's Will, 79 111. 99; 259 Carey's Estate, 49 Vt. 236. Hunt's Will, 81 Me. 275; Roane 260 Shorten v. Judd, 60 Kan. 73; V. Hollingshead, 76 Md. 369; 17 L. Stewart v. Mulholland, 88 Ky. 38; R. A. 592; Noyes v. Southworth, Blodgett v. Moore, 141 Mass. 75; 55 Midi. 173; 54 Am. Rep. 359; Fel- Swan v. Hammond, 138 Mass. 45; lows V. Allen, 56 Am. Rep. 530; Brown v. Clark, 77 N. Y. 369. 60 N. H. 439; Morey v. Sohier, 63 This is said to be still the rule N. H. 507 ; Hoitt v. Hoitt, 63 N. in Nebraska as far at least as the H. 475 ; Webb v. Jones, 36 N. J. curtesy of the husband is concerned. Eq. 163: Morton v. Onion, 45 Vt. Vandeveer v. Higgins, — , Neb. — , 145; Ward's Will, 70 Wis. 251; 1899; 80 N. W. 1043. Lyon's Will, 96 Wis. 339. 261 Blodgett v. Moore, 141 Mass. 25S Smith V. Clemson, 6 Houst. 75; In re Kaufman, 131 N. Y. 620. (Del.), 171. 32(3 LAW OF WILLS. during coverture, though her husband afterwards dies and she remarries.^^^ These statutes are generally so worded as not to apply where the marriage whereby the will is sought to be revoked was solemnized before the statute took elfect.-^^ Since a married woman could always execute a power conferred upon her, even if such power was to be executed by will, her marriage did not revoke a will made to execute a power.-^'* And where the woman expressly reserved, by an ante-nuptial agreement, the power to dispose of her property by will, her subsequent mar- riage did not effect a revocation.^^^ An ante-nuptial contract may refer to a previously executed will in such a way as to make it an execution of the power created by the contract. In such case the marriage will not revoke the will.^^^ In such case, however, the birth of a child not provided for by will or otherwise might revoke the will ; even though the husband could not avoid it at his option.^^'^ But an agreement that the woman shall retain control of her own property does not prevent the marriage from revoking the will, since the property becomes the husband's on mar- riage.- As appears from the foregoing sections, modern legislation has, in many jurisdictions, made the same rules applicable to the wills of men and women. In some jurisdictions marriage revokes the wills of both ; in others, of neither. In the latter 262 Chapman v. Dismer, 14 App. 141 ; Phaup v. Wooldridge, 14 D. C. 446: In re McLarney, 153 N. Gratt. (Va.), 332. Y. 416. 265 Osgood V. Bliss, 141 Mass. A married woman made a will. 474 ; Lant's Appeal, 95 Pa. St. Then her husband died: she then 279; Morton v. Onion, 45 Vt. 145. aciopted a child ; married a second 266 Boyes v. Cook, 14 Ch. D. 53 ; time, and was divorced from her Logan v. Bell, 1 C. B. 872 ; Osgood second husband. These facts did v. Bliss, 141 Mass. 474; Lant's Ap- not effect a revocation of her will. peal, 95 Pa. St. 279. Comassi's Estate, 107 Cal. 1. 267 Nutt v. Norton, 142 Mass. 263GoodEeirs Appeal, 55 Conn. 242; Craft's Estate, 164 Pa. St. 171; McAnnulty v. McAnnulty, 120 520. 111. 26 : Swan v. Sayles, 165 Mass. 268 Xutt v. Norton, 142 Mass. 177. 242; Lathrop v. Dunlap, 63 N. Y. 264 Cutter V. Butler, 25 N. H. 610 ; Carey's Estate, 49 Vt. 236. 343; Miller v. Phillips. 9 R. 1. LAW Of wills. 327 class of states the birth of a child revokes the will either en- tirely or pro tanto. §285. Effect of change not specified by law. While there is considerable diversity among the different states as to what constitutes a revocation by change of cir- cumstances (a diversity almost entirely confined to statute law), it is well settled that combinations of fact other than those specifically recognized by law will not effect a revoca- tion of a prior will, no matter how strongly it may be con- jectured that testator would have revoked his will if his at- tention had been called to it. The death of the chief benefi- ciary before the testator does not revoke the will,^*"^ nor does the death of the sole legatee where an executor is appointed,^^*^ nor probably even where no executor is appointed.^'^^ A great increase in testator's property, the birth of a chihl contemplated in the will, the death of testator's wife, and the insanity of testator for years so that he could not revoke his will, are not facts which amount in law to a revocation of his will.2^2 The fact that testator, who had made a will in favor of his wife, was afterwards divorced from her does not revoke the will, even where they settled and adjusted their property rights on separation.-^^ So where a testator made a will in favor of a woman whom he was about to marry, and they were afterwards married and then divorced, it was held that such facts did not revoke his will.^'^^ But where testator de- vised property to his wife, and ten years afterwards they were divorced and by agreement terminated all their property re- lations, in pursuance of which agreement he deeded part of 269 Brown v. Just, 118 Mich. 492; Baacke v. Baacke, 50 Neb. 18. 678 ; 77 N. W. 263. This case does not refer to Lan- 270 In re Hiclcman, 101 Cal. 609. sing v. HajTies, 95 Mich. 16. 2T1 Hoitt V. Hoitt, 63 N. H. 475. 274 Charlton v. Miller, 27 O. S. 272 Warner v. Beach, 4 Gray, 70 298. While n^^t on the exact point Mass. 162. Corker v. Corker, 87 Cal. 643, sup- 273 Card V. Alexander, 48 Conn. ports this case by its reasoning. 328 LAW OF WILLS. his property to her, it was held that such facts effected a . revocation by implication.^'^^ §286. Effect of alteration of circumstances after revocation is complete. If a will is revoked by change of testator's circumstances no subsequent change of circumstances can revive it.^*^^ Thus, a will revoked by the birth of a child, testator having none when he made the will, is not revived by the fact that testator survives the child.^'^'^ This rule, of course, does not appl3' where by statute, the will is revoked only where the wife or child survives the testator. So a will revoked by the sub- sequent marriage of testator is not revived by the subsequent separation of the parties.^'^^ §287. Effect of birth of child upon will of childless parent. At the common law the birth of a child did not of itself re- voke a will previously executed by its parent,^^^ nor did such child have any rights in testator's estate as against the de- visee."^^ In Iowa, however, it was held at common law that the birth of a child to testator revoked a previously executed will. This view was held in a case where testator was childless when the will was made,^^^ but was extended to the case where testator had children living when the will was executed f^^ and was held to amount to a total revocation.^^^ 275 Lansing v. Haynes, 95 Mich. ers, 53 Ind. 430; Hulett v. Carey, 16. G6 Minn. 327. This case distinguishes Charlton 2-9 See Sec. 282. V. Miller, on the ground that there ssowild v. Brewer, 2 Mass. 570 was no settlement of property Prentiss v. Prentiss, 11 All. 47 rights in that case. Peters v. Siders, 126 Mass. 135 270 Emerson v. Boville, 1 Phill. Cotheal v. Cotheal, 40 N. Y. 405 342; Ash v. Ash, 9 O. S. 383. Chace v. Chace, 6 R. I. 407. 277 Cases cited in preceding note. 2si McCulluni v. McKenzie, 26 lo. 278 Corker v. Corker, 87 Cal. 643; 510. or by their divorce. Stewart v. 2S2 Alden v. Johnson, 63 To. 121. Powell, 90 Ky. 511; Bowers v. Bow- ass Negus v. Negus, 46 lo. 487; Fallon V. Chidestor, 46 lo. 588. LAW OF WILLS. J29 "Nor did a child omitted without any intention of excluding it from its share of testator's estate, as where it was believed at the time of the execution of the will to be dead, have any rights in testator's estate as against the devisee.^^'* In many states these common law principles have been al- tered or abrogat-ed by statute. The details of these statutes are almost as many as the jurisdictions in which they are in force; but in their essential features they may be reduced to three classes: 1. Statutes of the first class provide that the birth of a child to testator shall revoke the will if such child is not provided for by will, or is not intentionally excluded. Statutes of tliic class usually by their terms apply only when testator had no children at the time of executing his will.^^^ Where testator had had children, who were dead when the will was made, the birth of subsequent children operated under these statutes as a revocation.-^^ Where a will is thus revoked by the birth of a child, the subsequent death of the child before testator does not revive the wilL"^'' §288. Effect of birth of child upon will of parent who has other children living-. 2. Statutes of the second class usually apply where testator had a child or children living at the time of the execution of his will, and provide that in case of the birth of a child (or in some cases the discovery of the existence of a child who was thought to be dead) subsequent to the execution of a will in which such child is not provided for, and where intention to exclude 'iuch child is not shown, such child shall take the 284Gifford V. Dyer, 2 R. I. 99. 210; Ash v. Ash, 9 O. S. 383; 285 Belton V. Sumner, 31 Fla. Evans v. Anderson, 15 O. S. 324; 139: 21 L. R. A. 146; Baldwin v. Rhodes v. Weldy, 46 O. S. 234. Spriggs, 65 Md. 373; Coudert v. 286 Coudert v. Coudert, 43 N. J. Coudert, 43 N. J. Eq. 407; Smith Eq. 407. V. Robertson, 89 N. Y. 555; 24 Huri, 287 Ash v. Ash, 9 0. S. 383. 330 LAW OF WILLS. share of testator's estate that it would have taken had testator died intestate.^^^ Under these statutes a will of a married woman made in execution of a power is avoided by the birth of a child after such execution, as far as the interests of such child are concerned.^^^ Statutes of the second class do not provide for a revocation of the will by the subsequent birth of a child, but only that the after-born child shall take as if his parent had died intes- tate. Accordingly, if such after-born child dies without issue before testator, the will of testator is not avoided even to the extent of the interest of such child. §289. Construction of these statutes. — "Having no child." One of the questions which has been presented to the courts mider statutes of these classes is. What is 'having no child' with- in the meaning of the provision of the statute referring to a child bom after the execution of the will ? Where the mother of the child was pregnant at the time of the execution of the will, and the child was born after the ex- ecution of the will, it is held that under such circumstances the testator or testatrix 'had no child' within the meaning of the statute, and the birth of such child avoids the will.^^^ 288Clarkson v. Stevens, 106 U. 224; Walker v. Hall, 34 Pa. St. S. 505; Holloman v. Copeland. 10 48.3; Grosvenor v. Fogg, 81 Pa. St. Ga. 79; Tyler v. Tyler, 19 111 151 : Hughes v. Hughes, 37 Ind 183; In re Minot, 164 Mass. 38 Bowen v. Hoxie, 137 Mass. 527 Peters v. Siders, 126 Mass. 135 Bancroft v. Ives, 3 Gray (Mass.) 367; Beck v. Metz, 25 Mo. 70 Horkensmith v. Slusher, 26 Mo 237 ; Stevens v. Shippen, 1 Stew (N. J.), 487; 2 Stew. (N. J.), 602 Wilson v. Fritts, 5 Stew. (N. J.) 50 : Rhodes v. Weldy, 46 O. S. 234 400; Potter v. Brown. 11 R. I. 232; Burns v. Allen, 93 Tenn. 149; 2.3 S. W. Ill; Verrinder v. Winter, 98 Wis. 287. 289 Young's Appeal, 39 Pa. St. 115. 290 Waterman v. Hawkins, 63 Me. 156; Evans v. Anderson, 15 O. S. 324; Rhodes v. Weldy, 46 O. S. 234; Willard's Estate, 68 Pa. St. 327; Burns v. Allen, 93 Tenn. 149: 23 S. W. Ill; Verrinder v. Winter, Tomlinson v. Tomlinson, 1 Ash. 98 Wis. 287. LAW OF WILLS. ^^^ §290. Construction of these statutes.— "Subsequent" birth, or having child "afterward." Another point which has been the subject of adjudication is, What is the meaning of "subsequent" or "afterward'-' with- in the meaning of this provision of the statute? It is held that the birth of a posthumous child avoids a prior will under the terms of these statutes.-^^ In some states the statutes originally protected the interests of posthumous children only ,2^2 and children bom after the execution of the will and before the death of testator could take only what the will gave them."^''^ The birth of an illegitimate child, after execution of the will, if followed by such recog-nition by both parents as to give' it capacitv of inheriting under the local statutes of descent, is sufficient tJ avoid or revoke the will.^^^ But if the statute does not provide for the legitimation of an illegitimate child by recognition, or if no such recognition takes place, the sub- sequent birth of an illegitimate child does not avoid the will of its parent, even of its mother.-^^ Where the illegitimate child was bom before the will was executed, its recognition and legitimation after the will is ex- ecuted is not a constructive birth so as to avoid the will.^^® The adoption of a child is not of itself sufficient to revoke a prior valid will.^^'^ Some statutes of these two classes entirely deprive testator of the power of disinheriting his after-born children; and avoid the will, at least so far as such after-born children are 291 Hart V. Hart. 70 Ga. 764; 295 Kent v. Barker, 2 Gray Bowen v. Hoxie. 137 Mass. 527; (Mass.), 535. Evans v. Anderson. 15 O. S. 324; 296 McCulloch's Appeal, 113 Pa. Wilson V. Otto, 160 Pa. St. 433 : Mc- St. 247. Knight V. Read, 1 Whart. (Pa.), 297 Comassi's Estate, 107 Cal. 1 .,j3 (Will of a woman). Davis v. Fogle, ^ 292^70^ parte Warner. Dud. Eq. (S. 124 Ind. 41; Davis v. King, 89 N. CaT.K 154; Talbird v. Bell, 1 De Car. 441. S (S Car ) 592. Contra. Hilpipre v. Claude (lo.) "'"293 Ellis v. ElHs, 2 De S. 55&. (1899) 80 N. W. 332; Woods v. 294Milburn v. Milburn, 60 lo. Drake, 135 Mo. 393. 411. 332 LAW OF WILLS. conceraed. No attention is paid, under statutes of this class, to the actual intention of testator. Even if it appears from the will that it was the intention of testator to disinherit his after-boni children, they will take as though testator died intestate, and the will will be revoked as to them. Statutes of this class provide that after-born children shall take as if testator had died intestate unless some provision is made for such children.^^^ §291. Omission of children from a will, 3. The third class of statutes provide in substance that if tes- tator does not provide for his children by will, or show his intention to omit such provision, such omitted children will take as if testator had died intestate.^^^ This rule applies as well to community property as to testator's separate prop- erty.=^«« The statutes of this class were originally framed on the theory that a testator who neither provided for his children, nor expressly indicated his intention not to provide for them, must have omitted to provide for them through inadvertence, and that his probable intention could be best enforced by giv- ing the omitted children such share as they would have taken had testator died intestate. By their terms and the constnic- tion placed upon them by the courts, however, they go farther than this and operate as a restriction upon the power of tes- tamentary disposition. 298 Holloman v. Copeland, 10 Ga. under Arkansas law): Merrill v. 79; Waterman v. Hawkins, 63 Me. Hayden, 86 Me. 133; Ramsdill v. 156; Hollingsworth's Appeal, 51 Wentworth, 101 Mass. 125; Forbes Pa. St. 518: Walker v. Hall, 10 v. Darling, 94 Mich. 621: Steb- Casey (Pa.), 483. bin's Estate, 94 Mich. 304: Woods 299Boman v. Boman, 49 Fed. 329 v. Drake, 135 Mo. 393: Thomas v. reversing (Wash.) 47 Fed. 849; Black, 113 Mo. 66: Smith v. Shee- Trotter v. Trotter, 31 Ark. 145 ; han, 67 N. H. 344 ; Bower v. Bower, Smith V. Olmstead, 88 Cal. 582; 5 Wash. 225; 31 Pac. 598; Bark- 12 L. R. A. 46; Rhoton v. Blevin, er's Estate, 5 Wash. 390; Mason v. 99 Cal. 645 ; Hawhe v. Chicago & W. McLean, 6 Wash. 31 ; Hill v. Hill, I. Ry. Co., 165 111. 561 ; Lurie v. 7 Wash. 409. Radiiitzer, 166 111. 609: Arnold v. 3oo Hill v. Hill, 7 Wash. 409. Arnold 62 Ga. 627 (a case arising LAW OF WILLS. 333 Some of the statutes provide that the child shall take the share of the estate which he would have had if testator had died intestate unless such child is named or provided for by the will.=^*^i §292. What shows intentional omission of a child. Under statutes which provide that an omitted child shall take such share of his parent's estate as he would have received if his parent had died intestate, unless such child is provided for, or it appears that testator intended to make no provision for him, no set form of words is necessary to show that the omission was intentional. Any form of expression from which testator's intention can be inferred is sufficient to exclude such child.'^^" Unless such intention does appear, the omission will be presumed to have been uniutentional and the child will take as if his parent had died intestate.^"^ But the courts do not agree as to what provisions show an in- tentional omission. In some cases it is held that where testator, with full knowledge of the facts, disposes of all his property by will to his wife, he shows an intention not to provide for his minor children.^^* This holding seems clearly contrary to the spirit of the statute, and is not entertained in otber jurisdic- tions. The Vx'eight of authority is that a devise of all of testator's property, where the children are not named, does not show an intention to make no provision for them.^®'^ Where testator expressly provides that he leaves all his property to his wife to the exclusion of his children, not from want of affection for them, but because he is sure 301 Schneider v. Koester, 54 Mo. Ill; Bank v. White, 159 111. 136; 500. Bancroft v. Ives, 3 Gray (Mass.), 302 Merrill v. Hayden. 86 Me. 133. 307; Carpenter v. Snow, 117 Mich. 303 Thomas v. ^Black, 113 Mo. 489; 41 L. R. A. 820; Breese v. 66; Mason v. McLean. 6 Wash. 31. Stiles, 22 Wis. 120: Thomas v. 304Hawhe v. Chicago & W. I. Ry. Black, 113 Mo. 66; Biirch v. Brown, Co. 165 111. 561; Lurie v. Radnitzer, 46 Mo. 441; Bradley v. Bradley, 24 166 111. 609. ' Mo. 311 ; Mason v. McLean, 6 Wash. 305 R. R. V. Wasseman, 22 Fed. 31. Rep. 872; Ward v. Ward, 120 111. 334 LAW OF WILLS. that she will always be a kind and devoted mother to them, it is held that this shows an intention not to provide for the children.^''^ A will leaving all the property of testatrix to her husband, to the exclusion of everyone else who might be entitled to it, was held not to show an intention to exclude the children of testatrix.^^'^ Under the terms of some of these statutes, naming a child is sufficient to show an intent to make no further provision for such child than is made by the will.^^^ Where testator's illegitimate child is clearly referred to by mentioning its mother, such child is not 'omitted,' even though testator recites its first name incorrectly.^^^ But a bequest of $100 to each of the "heirs at law" of testator is not such a naming of his children as to comply with the provisions of this statute.^^^ But a devise to testator's "legal heirs" is a sufficient reference to his children,^^^ A gift over to the heirs of testator's wife does not show an intention not to provide for testator's children.^^^ So a de- vise to testator's wife "and her heirs forever," is not a provi- sion for testator's children by her or a naming of theni.^^^ Where testator specifically refers to his unborn children, his intention is clear to exclude them from any share other than that given by will. Thus, where testator by will provided that if his widow should remarry, an unborn child should re- 306 Rhoton V. Blevin, 99 Cal. 645 ; L. R. A. 46 : Rhoton v. Blevin, 99 (but in an almost identical case, Cal. 645: Woods v. Drake, 135 Walker v. Hall. 34 Pa. St. 483. it Mo. 393; Thomas v. Black, 113 Mo. was held that not even such a pro- 66. vision could exclude after-born ehil- 309 Gorkow's Estate, 20 Wash, dren. Under the Pennsylvania Stat- 563. ute, however, the after-born chil- sio Boman v. Boman, 49 Fed. 329, dren took as in intestacy, unless reversing 47 Fed. 849, (Wash.), provided for). 3ii Smith v. feheehan, 67 N. H. 307 Barker's Estate. 5 Wash. 390; 344 (in this case, however, a gift So of a gift to the wife, Hargadine was made direct to the 'legal heirs' V. Pulte. 27 Mo. 423. of testator ). 308 Boman v. Boman, 49 Fed. 329. 3i2 Rhodes v. Weldy. 46 O. S. reversing 47 Fed. 849, (Wash.) : 234. Smith V. Olmstead, 88 Cal. 582: 12 3 1.-? Bower v. Bower, 5 Wash. 22.5. LAW OF 'WILLS. 335 ceive one-third of his property, but that otherwise the widow should receive such part, it was shown that the testator either provided for such unborn child or intended to make no provi- sion.^^ ^ So, where a testatrix- provided that her property should go to her husband if he survived her, but if not, "and I shall die leaving a child or children," then to such child or children, it was held to be a provision for them, and to show an intention not to provide for them further.^^^ In some jurisdictions, however, the word 'heir' in a gift to the surviving spouse and his heirs, is held to show testator's intention to exclude his children.^^*^ A gift to one to the exclusion of 'any one. else' who.. might be entitled to such prop- erty, is not a naming- of the disinherited children.^^'^ A reference to testator's minor children is not a naming of his adult children. ^^'^ But a bequest to the children of an adopted daughter is a sufficient naming of such adopted daughter.^^^ A reference to a deceased daughter shows testator's inten- tion to make no provision for her children where none is made by wiil.^-*^ And a gift by name to one who had married tes- tator's daughter was held to be a sufficient naming of such daughter.^^^ An express declaration that a given child shall have no part of testator's estate is a sufficient naming,^^^ as is a devise to testator's wife to dispose of "with reference to her child or chil- dren," where the only child that they had was then alive.^^^ A recent case seems at variance with the principle just laid down in the text. Testator devised all his estate to his 314 Verrinder v. Winter, 98 Wis. or the court found that some pro- 287. vision had been made for them ) . 3i5 0sborn v. Bank, 116 111. 130. si? Barker's Estate, 5 Wash. 390. 3i6 0sborn v. Bank, 116 111. 130; sis Wetherall v. Harris, 51 Mo. Leonard v. Enochs, 92 Ky. 186; 65. Minot. Petitioner, 164 Mass. 38; 3i9 Woods v. Drake, 135 Mo. 393. Verrinder v. Winter, 98 Wis. 287 32o Guitar v. Gordon, 17 Mo. 408. (in these cases there was either 32i Hockensmith v. Slusher, 26 such a wording of the will as to Mo. 237. lend color to the inference that tes- 322 Block v. Block, 3 Mo. 594. tator meant to exclude his children ; 32.s Beck v. Metz, 25 Mo. 70. 336 LAW OF WILLS. wife, ''giving my said wife full power and authority to col- lect all debts," etc., and "to sell any and all of my estate, ' and to convey the same '"as fully, amply and completely as I could have done in my lifetime." The testator then had two children; a third was born in two months. It was held that the intention was apparent that after-born children should not take.^^^ §293. What is a provision for a child. By the terms of these statutes a child for whom a "pro- vision" is made is not included among those who may take as in cases of intestacy. Such child- can take what the will gives it, and no more. It is often important, therefore, to determine what is a "provision" within the meaning of these statutes.^^^ The "provision" must be a present vested interest to take immediate effect in possession upon the death of the testator. A vested interest in futuro, such as a remainder or reversion, is not sufficient "A reversionary interest, whether vested or contingent, is not a provision for an after-born child within the words or spirit of the statute." ^^^ Thus, a devise to testator's wife for life, and on her death to the heirs of her body, no child being in existence when the will was made, is no "provision" for an after-born child.^-''' Where testator devised property to his wife and each of his children then living, and provided that the residue should be divided among his "surviving children," it was held that 324Hawhe v. R. R. Ck)., 165 III 325 Clarkson v. Stevens, 106 U. 561. S. 505 : Stevens v. Shippen, 1 Stew. In this case the court laid great 487 : 2 Stew. 602. stress upon the fact that the chil- 326 WiHard's Estate, 68 Pa. St. dren already born were disinherited, 327. To the same effect are Alden v. as showing that testator did not Johnson, 63 To. 124: Waterman v. mean to provide for those born Hawkins, 63 Me. 156: Rhodes v. later. It assumes to distinguish Weldy, 46 O. S. 234 ; Hollingsworth's the earlier cases there cited which Appeal. 51 Pa. St. 518 : Potter v. support the text, except R. R. v. Brown. 11 R. I. 232. Wasseman, which it refuses to fol- 327 Rhodes v. Weldy, 46 0. S. low. 234. 337 I.AW OF' WILLS. a posthumous child was not provided for withiu the meaning %t. statute nor did the fact that the residuary clause was l; acl^nt so worded as to include such child show a.^ intent to exclude it further.^^^ . , ,, a tmany other cases, however, this view is held unsound and any beneficial gift of property, either m the nature of a "version or a remainder, is a "provision" withm the mean- ino- of the statute.^- .« Thus in a recent case testator, knowing that h.s wife was pregnant, left his pror^rty, after some specific f^'J<2 of which were to such untorn child, to trustees, to pay the entire income to his wife during her life, and on her death the reversion "to those persons who if my death occurred at the time of her death would then he my heir, at aw hy blood." It was held that a provision was made for this un- born child within the meaning of the statute."!'" So, where testator provided that his widow sho"\^ -™ ^ bis property in fee, but if she remarried "her heir hould Z!l third of the property, it was held that this contingen remainder either was a provision for an unborn child or Twed an intention to exclude such child from a share m • testator's will.^^^ , -, , mi So, a devise of testator's real estate to his wife to hold till his youngest child ''if any be born to me" should come of ate and if no child of testator is alive at his death to the :ff'e absolutely, is an implied gift to the children when the 32. Bowen v. Hoxie. 137 Mass. 527. ently testator did not know of its s-gTJhoton V Blevin, 99 Cal. 645; existence. , • i.^ 3.9 Rhoton V. ^' ' (. This case might have been decided Hawhe v. Chicago & W. 1. K. »^o., j^'i s „f „ii +vp faoU ndvviit^ o showing, m view of all the lacts, iRc; in "ifil • Leonard v. Enochs, J^ ^is biiuwinoi Z Is! m.«t. Petitioner. 164 - i"'™""" .'» ^''"'f J'* mI t mL 38 Verrinder v. Winter. 98 as the mtent.on "«'»"»" 'f';,'^ r.-2S: ; Don.es. Estate. .03 Wis. --'^--r- ^ rL'^- ''IjoMinot. Petitioner. 164 Mass. sion on the 'P«'.«; l^"-" *"* 3S. c,istin,nisHing Bowen v^ Hoxie ^l^^^^^^^^tt^: ,, wis. 137 Mass. 527, as a case where the ^.i veinnaer child was posthumous and appar- 287. 338 LAW OF WILLS. youngest comes of age, and is a "provision" within the mean- ing of the statute.^^^ A gift to the surviving spouse ''and his heirs" (or "her heirs," as tlie case may be) is usually held neither to be a provision for after-born children nor to show an intent to exclude them.'^^^ Since the word "heirs" in this connection is one of limit- ation, and not of purchase, the children of the surviving spouse by the decedent have no interest under the will, vested or contingent, and are very clearly not provided for. Where the surviving spouse is a second wife, so that chil- dren of testator by his first wife can not be her heirs, a gift to her and her heirs is no provision for testator's children by his first wife.^'^^ A gift for the maintenance and support of after-bom chil- dren during their minority is a provision for them ; ^^^ and a devise of certain land in a county named is a "provision" for the beneficiaries, even if at the time of making the will testatrix did not own any land in such countv.^^® But a gift of a family bible, if another child did not wish it, with the privilege of selecting some books and clothing, is not a provision ;^^'^ nor is a gift of one dollar to each of the heirs at law of t-estator a provision.^^^ A deed to a divorced wife for alimony and maintenance of minor children is not a provision, especially where the decree of divorce specifically provides that this deed shall not affect the interests of the unborn child.^^^ 332Donges's Estate. 10.3 Wis. 497 333 Holloman v. Copeland, 10 Ga 79; Bancroft v. Ives, 3 Gray, 367 Ramsdill v. Wentworth, 101 Mass 125; Potter v. Brown, 11 R. I 232: Bower v. Bower, 5 Wash. 225; 621 : Jackson v. Jackson, 2 Pa. St. 212. 336 Callaghan's Estate, 119 Cal. 571: 39 L. R. A. 689. 337 Stebbins v. Stebbins, 94 Mich. 304. Barker's Estate, 5 Wash. 390. 338 Boman v. Boman, 49 Fed. 329, 334 Thomas v. Black, 113 Mo. 66. reversing 47 Fed. 849 (Wash.). 335 Forbes v. Darling, 94 Mich. 339 Burns v. Allen, 93 Tenn. 149; 23 S. W. 111. LAW OF WILLS. ^^^ §294. Evidence.— How intention to omit must be shown. As these statutes usually apply where the will does not make a provision for such children or show an intent not to provide for them, extrinsic evidence is not admissible, either to show that the omission was intentional,=^^° or that the omitted children were otherwise provided for.^^^^ Nor cau clauses in a will which were erased before execution be used to show that the omission was intentional.^^^ Where the statute does not require testator's intention to exclude his children from his estate to appear on the face of the will, evidence of testator's intention to provide for his children or not to do so may be shown outside the will.^" §295. Necessity of contest by omitted children. As those statutes make testator's will absolutely void, as far as the rights of the child or children protected by statute are concerned, it is not necessary that such child contest the will. The will may be probated without contest, and yet treated as a nullity as to the interests of such cliild.^^-'^ 340 Carpenter v. Snow. 117 Mich. admitted to show that testator had 489- 41 L. R. A. 820; Thomas v. disinherited his children by reason Black 113 Mo. 66; Burns v. Allen. of a mistake of law, believing that 93 Te'nn. 149; 23 S. W. 111. his wife would take a life estate, ».iHill V Hill, 7 Wash. 409. citing and following Lorings v. 34.Lurie V. Radnit^-.er, 166 111. March. 6 Wall. 337; Wilson v. Fos- 609 (In this case testator made ket, 6 Met. 400: Bancroft v. Ives, a provision for an unborn child. 3 Gray. 307; Converse v. Wals, 4 which clause he erased before ex- All. 512. So Carpenter v. Snow, ecution, adding a certificate to the 117 Mich. 489; 41 L. R. A. 820. effect that the erasure was made Thus in Michigan, intention to with his approval. It was held exclude children in existence at the that as such erased clause formed execution of the will need not ap- no part of the will, and as tes- pear on the will, but intention to tator's intention to exclude an af- exclude children not in existence at ter-born child must appear on the he execution of the will must ap- face of the will, such child took as if pear on the will. Carpenter v. testator died intestate. Snow, 117 Mich. 489; 41 L. R. A. 343llamsdill v. Wentworth, 101 820. Mass 125. (This case involves dis- 344 Morse v. Morse, 42 Ind. 565; inheriting children alive when the- Fallon v. Chidester, 46 lo^ 588; will was made. Parol evidence was Evans v. Anderson, 15 O. S. 324. 340 LAW OF WILLS. This is upon the theory that, while probate establishes the capacity of testator and the due execution of the will, it does not for other purposes "establish the testamentary character of the instrument and give validity to a title based upon it." ^^^ Indeed, it is held that these children can not have the will set aside even if they bring suit for that purpose.^"*'' §296. Effect of omission upon other provisions of will. The question is sometimes raised whether provisions of a will not dispositive in their nature, such as the appointment of an executor or the creation of a power of sale, are super- seded by the birth or existence of children as to whom the will is a nullity. In some jurisdictions it seems to be held that whether the will is entirely revoked, or is merely a nullity as to certain children, no provisions of the will have any force as against their interests by descent.*"^^^ In other states a distinction is made, and where the will is not revoked the power of sale or the appointment of an ex- ecutor is held operative as to their interests.^^^ While if the facts are such as to operate as a revocation of the will, the power of sale is invalid.^^® 345 1'allon V. Cihidester, 46 lo. "The will stands, except so far 588. as the disposition of property under 346 Barker's Estate, .5 Wash. 390. it is disturbed by the necessity Contra, that its validity may thus of contribution to make up the por- be tested at once, Meyers v. Bar- tion of the posthumous child." row, 3 Ohio C. C. 91. Wilson v. Fritts, 32 X. J. Eq. 347 Smith V. Olmstead, 88 Cal. 59. 582 : 12 L. R. A. 46. ( In this ease 349 Smith v. Robertson, 24 Hun, a power of sale was held ineffective 210; 89 N*. Y. 555. as to the shares of omitted child, Whether the subsequent birth of neither named nor provided for by a child revokes a prior will of its will.) parent, or only secures the child's 348 Van Wickle v. Van Wickle, share of the estate independent of X. J. Eq. — , 1899; 44 Atl. 877 ; Wil- the will is, of course, purely a ques- son V. Fritts, 32 X. J. Eq. 59 ; tion of the wording and meaning of Coates V. Hughes, 3 Binn. (Pa.), the statute. 498. 841 LAW OF WILLS. An appointment of a guardian for testator's minor children was not avoided by the subsequent birth ol a child. It will be noticed at once that statutes of the second c ass effect only a partial revocation; while statutes of the third class do not effect a revocation at all. A discussion of statutes of the third class in this chapter is therefore illogical. But a sep- arate discussion of them would necessitate a repetition of the discussion of what is a provision, what is a naming, and what shows testator's intention Uy exclude children from a share m his estate; and to save space, therefore, this topic is taken up out of its order. 350 Hollingsworth v. Hollingsworth, 51 Pa, St. 318. 342 LAW OF WILLS. CHAPTER XV. ALTERATION AND PARTIAL SPOLIATION. §297. General principles. Since revocabilitv is an essential and inherent element of a valid will, the testator has fnll and absolute power to revoke and alter his will as he sees fit.^ It is further clear that no one else has any right to alter the will of testator without his consent and authority.^ The general principles being well settled, the practical ques- tions presented to the courts for adjudication concern the practical effect of such changes in the will when actually made. §298. Definition of alteration. Alteration is a change in the words of a will, by addition, or erasure, or both, made by testator, or some one acting under his authority, after the execution of the will.^ Changes made in the wording of a will before execution are not included in this definition, since such changes become by execution an in- tegral part of the will.* §299. Effect of alteration. Under our modem statutes an alteration made by testator ^Sec. 50. 8 L. R. A. 38.3: Simreirs Estate, 2 Sec. 300. 154 Pa. St. 004. sFfinch v. Combe (1894) P. 191 Hesterberg v. Clark, 166 111. 241 Grardiner v. Gardiner, 65 N. H. 230 4Liirie v. Radnitzer, 166 111. 609; Wright V. Wright, 5 Ind. 389. LAW OF WILLS. ^^^ in his will a-fter execution is of no effect whatever, unless the will has subsequently been re-executed or republished. The part inserted is treated as if it did not exist. The part stricken out is treated as if it were still part of the will.^ But a correction of an error, as in the name of an executor, does not invalidate the will in whole, or in part.*^ There are two exceptions to this general rule: First, in those states where partial revocation is allowed, an alteration in the will may take effect if it merely takes from the pro- visions of the will, though it can not be given effect where it adds to them unless the will is after^vards re-published."^ Second, where it is impossible either from the will itself or from extrinsic evidence to determine the words which were erased or stricken out, such words must be disregarded, and the will probated with such clauses blank.^ The effect of republication upon alterations in a will after execution is discussed under the subject "Republication." ^ §300. Definition of spoliation. Spoliation is a change in the wording of a will, made after execution by one who is neither the testator nor is authorized by him. The word is also used of the destruction of a will by some one other than testator or one authorized by him. This branch of the subject is treated under the head of Lost and Spoliated Wills.^^ Spoliation is often called alteration. The sFfinch V. Combe (1894) P. 191; man, 88 N. Y. 377; Lang's Will, Brasier's Estate (1899), P. 36; 68 61 N. Y. S. 675; 30 N. Y. Supp. L. J. P. D. & A. N. S. 6; In re Law- 388; Simrell's Estate, 154 Pa. St. son 25 N. S. 454 ; Hindmarsh v. 604 ; Stover v. Kendall, 1 Cold. Charlix)n. 8 H. L. Cas. 160 ; Goods of (Tenn.) 557 : Varnon v. Varnon, 67 Madlock, L. R. 3 P. & M. 169; Mo. App. 534. ^ Tyler v. Merchant Tailor Co. L. R. 6 Lang's Will, 61 N. Y. S. 675; 15 Prob. D. 216: Hesterberg v. 30 N. Y. Supp. 388. Clark, 166 111. 241 : Camp v. Shaw, ^ See Sec 254. 52 111 241, affirmed, 163 111. App. » See Sec. 254. 144: Doane v. Hadlock, 42 Me. 72 » See Chap. XVI, Republication. Gardiner v. Gardiner. 65 N. H. 230; lo See also Sec. 261 ; See Sec. 434 8 L. R. A. 383; Lovell v. Quit- et seq. ; Sec. 347, et seq. 344 LAW OF WILLS. names are not always kept distinct, but the principles controll- ing the two are rarely confused.^ ^ §301. Effect of spoliation by a stranger to the will. The effect of a spoliation depends upon who changed the will or caused it to be changed. If a stranger to the instru- ment changed it, such spoliation is a nullity. The part in- serted by the stranger is disregarded. The part erased by him is to be read as it was originally written, if it is possible either from the will itself or from extrinsic evidence to de- termine the words originally employed.?^ §302. Effect of spoliation by a beneficiary. But where a beneficiary .under a will alters a provision in such will, it avoids the provision thus altered as far as his in- terest is concerned. Tt does not, however, avoid the interests of other beneficiaries not parties to the spoliation, nor does it avoid other provisions in the same will in favor of the spoliator not altered by him.^^ The foregoing proposition is amply sustained by authority where the spoliation is material. But where it is immaterial it has been held, in the absence of evidence showing additional reasons for avoiding a bequest to the spoliating beneficiary^ that the will should not be affected in any way by such im- material alteration.' ■* 11 Miles's Appeal. 68 Conn. 237 ; 72 : Thomas v. Thomas. 76 Minn Thomas v. Thomas, 76 Minn. 237. 237. 12 Miles's Appeal, 68 Conn. 237: In Wilson's Will, 8 Wis. 171, it Camp V. Shaw, 163 111. 144, affirm- was laid down as a general proposi- ing 5z 111. App. 241 : Doane v. Had- tion that any alteration in a will lock, 42 Me. 72; 'Thomas v. Thom- avoided the whole will. But in that as, 76 Minn. 237 ; Holman v. Rid- case the evidence made it very prob- dle, 8 O. S. 384; Widdowson's Es- able that the beneficiary had al- tate, 189 Pa. St. 338; 41 Atl. 977; tered it, and the observations of Grubbs v. McDonald, 91 Pa. St. the court are probably confined to 236; Means v. Moore, 3 McCord, those facts. 282. i4McIntire v. Mclntire, 8 Mack- 13 Smith v. Fenncr., 1 Gall. (U. ey (D. C.) 482. S.) 170; Doane v. Hadlock, 42 Me. LAW OF WILLS. 345 CHAPTER XVI. REPUBLICATION. §303. Definition. Republication is any act which gives new validity in law, as of the date of republication, to a will which has already been, executed.-^ §304. History of law of republication. At the common law, in the absence of statute, it was held that- no set form was necessary to constitute republication. It was not necessary that any writing be made, nor was sig- nature by testator necessary. The only requisites to a good re- publication were that testator should, by his acts and words, recognize the will as being in full force and effect.^ Thus, in cases where the testator had kept the will after revocation, and had spoken of it as his will and had referred to it as suiting him, it was held that these acts amounted to a republication.^ And at the common law the mere fact of keeping the will among valuable papers might, without fur- ther acts, amount to a republication."* 1 Whiting's Appeal, 67 Conn. 379. 3 Miller v. Brown, 2 Hagg, 209; 2Alford V. Earle, 2 Vern. 209; Braham v. Burchell, 3 Add. 243; Long V. Alfred, 3 Add. 48 ; Abney Brotlierton v. Hellier, 6 Eng. Ecc. V. Miller, 2 Atk. 593 so in Penn- Cas. 33. sylvania before 1833; Havard v. 4 Braham v. Burchell, 3 Add. 243. Davis, 2 Binn. (Pa.) 406; Jones V. Hartley, 2 Whart. 103. 346 LAW OF WILLS. Tiie republication of a will once revoked was thus entirely a matter of parol evidence of the intention of the testator. The law was reduced to such an unfortunate condition that Parliament interfered, and in the Statute of Frauds, 29 Car. II, ch. 3, abolished these rules as to wills of lands, and required that wills of realty could be republished in no manner except by formal re-execution, or by a properly executed codicil. This statute did not make any change in the law of republication of testaments of personalty, and they could be republished by the acts, conduct and declarations of testator as before.^ §305. Modern statutes. In the United States statutes were passed at different times during the present century and the latter part of the last century which abolished the common law rules on the subject of republication, and substituted for them the general prin- ciples of the Statute of Frauds. Wills can not henceforth in such jurisdictions be republished except by a compliance with the statute; and the statute in most states calls for either re-execution of the will itself, with the same formal- ities as those necessary for the execution of a new will, or such reference to it in a properly executed codicil as will in- corporate it therein.^ Under such statutes the acts of keeping the revoked will and speaking about it as a will do not effect a republication.^ §306. Methods of republication. — Re-execution. While under the modern statutes a will is no longer subject to republication by testator's keeping such document in his possession after revocation, speaking of it as his will and the like,^ and in most states these statutes apply to both wills and 5 Long V. Aldred, 3 Add. 48 ; Mil- Mitchell v. Kimbrough, 98 Tenn. ler V. Brown. 2 Hagg. 209. 535, and see In re Smith, L. R. 45 6 Barker v. Bell, 46 Ala. 216: 49 Ch. D. 632. Ala. 284 ; Stewart V. Mulholland, 88 « Battle v. Speight, 9 Ired. (N. Ky. 38; Stickney's Will, 161 N. Y. Car.) 288; Mitchell v. Kimbrough, 42. 98 Tenn. 535; Warner v. Warner, 7 Stickney's Will, 161 N. Y. 42; 37 Vt. 356. LAW OF WILLS. 347 testaments, there are still some states in wkich a testament of personalty may be republished by the words and acts of the testator. The methods of republication prescribed by our mod- ern statutes are two: re-execution and by codocil. Re- execution must be had with all the formalities necessary for original execution.^ 'No further formalities, however, are nec- essary. Thus, in Pennsylvania, where execution before two witnesses is necessary, but they need not subscribe the will, it IS sufficient in republication for testator to declare the instrument to be his will before the requisite number of wit- nesses. Thus, a testator may acknowledge his signature be- fore the witnesses in republication instead of making a new signature, since the statute gives him that privilege in orig- inal execution. But the witnesses can not acknowledge their signatures, since the statute gives them no such permission.^® They must sign the instrument once more in the presence of testator, and at his request, just as in original execution. §307. Methods of re-execution. — Codicil, A properly executed codicil which is attached to a will,^^ or which refers to it specifically, as by its date and contents,^^ acts as a republication of the will as of the date of the codicil.^ ^ There is one very obvious exception to the doctrine that a valid codicil republishes the will of which it is a part. Where holographic wills are recognized, a holographic un- 9 Jackson v. Holloway, 7 Johns. vey v. Chouteau, 14 Mo. 587; Bar- (N. Y.) 394: Havard v. Davis, 2 ney v. Hayes, 11 Mont. 571; Gass v. Binn. (Pa.) 406; Jones v. Hart- Gass, 3 Humph. (Tenn.) 278. ley, 2 Whart. (Pa.) 103 ; NeflF's Ap- i3 Shaw v. Camp, 163 111. 144; peal, 48 Pa. St. 509. Pope v. Pope, 95 Ga. 87; Hawke 10 O'Neill V. Owen, 25 Conn. L. J. v. Euyart, 30 Neb. 149 ; Gilmer's Es- 376: 9 Conn. L. T. 297. tate, 1.54 Pa. St. 523; Baker's Ap- 11 Barnes V. Crowe, 1 Ves. Jr. 485; peal, 107 Pa. St. 381; Skinner v. Shaw V. Camp, 1G3 111. 144; Ho- American Bible Society, 92 Wis. bart V. Hobart, 154 111. 610, 209: BrovATi v. Clark, 77 N. Y. 369; 12 Pope V. Pope, 95 Ga. 87; Ho- Vogel v. Lehritter, 139 N". Y. 223. bart V. Hobart, 154 111. 610; Har- 348 LAW OF WILLS. attested codicil does not republish a previously executed will not in the handwriting of testator.^ ^ An improperly executed codicil has not, of course, the effect of republishing a will;^^ and where the codicil refers to a will already revoked in such a manner as to show that tes- tator does not intend to revive this will, there is not repub- lication.^^ Thus, a reference to a revoked codicil by inserting in a subsequent codicil the statement that "my two sisters named in my codicil of are both dead" did not revive the cod- icil referred to.^^ In some jurisdictions, by statute, a codicil does not revive a will once revoked unless such intention shall expressly ap- pear on the face of the codicil, or unless the disposition of the estate in such codicil is inconsistent with any other in- tent than that of republishing the will.^** §308. General effect of republication. The effect of republication of a will is to make it in legal effect a valid will as executed at the time of such re-publication, and speaking as of such time.^^ But while the execution of a codicil republishes the original will, it docs not prevent the ademption of specific legacies given therein, nor does it make valid such as have been adeemed.^" But where a general leg- acy was adeemed by payment in whole or in part, it was held that such legacy was revived by a subsequent will giving a legacy of the same amount to the same legatee,^^ or by a codi- cil republishing the will.^^ 14 Sharp V. Wallace, 83 Ky. 584. ney v. Hayes. 11 Mont. 571: Hawke 15 Vestry of St. John's Parish v. v. Euyart, 30 Neb. 149; 27 Am. Bostwick, 8 App. D. C. 452 ; Love v. St. Rep. 391 ; Gilmor's Estate, 154 Johnston. 12 Ired. L. (N. Car.) Pa. St 523. 355; Dunlap v. Dunlap, 4 De Saus aoTanton v. Keller, 167 111. 129, (S. Car.) 305. aff. 61 111. App. 625, citing Payne 16 Zn re Dennis (1891) Prob. 326. v. Parsons, 14 Pick. 318; Richards 17 /n. re Dennis (1891), Prob. v. Humphreys, 15 Pick. 133; Lang- 326 don v. Astor, 16 N. Y. 57; Hawzo IS Madonnell v. Purcell, 23 Can. v. Mallet, 4 Jones Eq. 194. Sup. 101. 21 Jacques v. Swasey, 153 Mass. 19 Whiting's Appeal, 67 Conn. 596; 12 L. R. A. 566. 379; Pope v. Pope, 95 Ga. 87; Bar- 22 Bird's Estate, 132 Pa. St. 164. 349 LAW OF WILLS. §309. Application of the doctrine of republication—After ac- quired realty. At commmL law the doctrine of republication was one of Z .Zort^nce We have already seen that at common law great mipoitance. v» after-acqnired realty no :r:r:"M^— r.-.,.. ^.- RepuhU^Uon Tadtthe .viU in legal effect as of tie date of ^e-pu^^^- tion and not of the date of the will. Thus if the will at l^ted to devise land which the testator did not ow at the artf tt execution of the will, but which he had acquired Irlrd, and before republication, republication would make the will good to pass the title t« such land.- Thi application of the doctrine of republication has lost mol of il' importance since statutes ha.e een P^sed a low- ing a testator to devise after-acquired realty by will, if ' £ t- 25 intention so to do is manifest. §310. Eevivor of prior revoked will. The doctrine of republication is still of great practical importance when a will once properly executed has been re- vled and it is sought to show that it has been again put in -farce bv republication. „ ^ , Whet a will is revoked by the execution of a lat.r incon- sistent will, which contains no clause of express r6vo<,ation Thave se^n that, by the weight of ^o^- -th»ri 5-, ^ revocation of the second will leaves Ae first in full force and effect without any republication. The reason underlying this- rule is that the -^sj- - consistent will, since it does not contain a c ause of express revocation, does not work a revocation at all until, by the death of testator, it takes effect. Up ^ that time .^ de- struction prevents it from ever taking effect either as a d.s position of property or negatively by way of revocation. „ „ ,., !5Sce Sec. 142. »,See Seo. 142. .6 Pickens v. Davis, 134 Ma»8. «;„ re Champion (C A.) ^^^ ^.^^ (IRtni 1 Ch. 101; Reynolds v. 25.:. cneevei ^- ' Shirley, 7 Ohio, 2d part, 39. 850 LAW OF WILLS. But where the will was revoked in any other manner, as bj some act manifest on the face of the instrument, such as tearing, destroying and the like, or by a change of circum- stances, or by the execution of a later will containing a clause of express revocation, it must, under most modern statutes, be republished as provided for in the statute.^^ §311. Re-execution cures a defectively executed will. Republication is also still of practical importance when the will sought to be revived by republication is defectively executed, or was executed when testator had not capacity in law to make a will. In such a case if the will is republished, as required by statute, it is valid, no matter what defects may have originally existed in its execution.^^ Improperly executed codicils annexed to a will are repub- lished by a subsequent codicil properly executed, which refers to the whole will, including the codicjls.^^ But where the second codicil covers the same ground as the first codicil, and is inconsistent therewith, it is held to be a substitute for the first and not a republication ; ^^ and the omission of all ref- erence to a pre-existing codicil may, in connection with other facts and circumstances, show an intention not to republish such codicil.^^ So, where the original will was executed when testator did not possess testamentary capacity,'^^ or was constrained to execute the will by undue influence,''^ subse- 27Chilcott's Estate (1897) P. 223: 66 L. .T. P. 108 Shaw v. Camp, 223; 60 L. J. P. 108: Brown 163 111. 144; 36 L. R. A. 112. affiim- V. Clark; 77 N. Y. 369; Kurt;^ ing 52 111. App. 241; Walton's V. Saylor, 20 Pa. St. 205. Estate, 194 Pa. St. 528. 28 Burge V. Hamilton, 72 Ga. 568 : so Chichester v. Quatreiages In re Murfield, 74 lo. 479; Harvey (1895) P. 186. V. Chouteau. 14 Mo. 587 ; Barney V. 3i McLeod v. McNab (P. C.) Hays, 11 Mont. 571: McCurdy v. (1891) A. C. 471. Neall. 42 N. .1. Eq. 333: Stover v. 32 Brown v. Riggin. 94 111. 560; Kendall. 1 Coldw. (Tenn.), 557; Gass v. Gass, 3 Humph. (Tenn.) Skinner v. American Bible Society, 278. 92 Wis. 209. 33 Campbell v. Barrera (Tex. Civ. 29Chilcott's Estate (1897) P. App.) 32 S. W. 724. LAW OF WILLS. 351 quent republication, when testator is free from these dis- abilities, will make the will valid. So, where a will has been altered after execution a subsequent republication will give effect to the will including these alterations.^* Where the prior will was intended to incorporate an extrinsic instrument, and was so drawn as to fail in this attempt by reason of a lack of some element necessary, there is no doubt that a subsequent codicil may so refer to the document as to incorporate it. But if the codicil and will taken together do not so refer to the extrinsic document as to incorporate it, the fact that the codicil republishes the will does not make valid the original invalid attempt to incorporate.^^ Thus, where the will spoke of the funds to be used in cre- ating a trust as those which the trustees would find noted by the testator, and this noting consisted in writing out a list of the funds to be applied in trust after the will was executed, it was held that a subsequent codicil confirming the will did not effect an incorporation of this document in the will, since the will did not refer to it as in existence at the date that the will was made, and the codicil did not attempt to incorporate it.36 34Goods of Heath (1892) P. 253; 66: 6 Rep. 582; Goods of Reid, 38 L. Shaw V. Camp, 163 111. 144, affirm- J. P. 1. ing 52 111. App. 241. -le Durham v. Northern (1895), 35 Durham V. Northern (1895) P. Prob. 66. 362 LAW OF WILLS. CHAPTER XVII. PROBATE AND CONTEST. §312. History and general nature. At common law there was nothing corresponding to probate in case of a will devising real property. If testator died leaving a valid will, it went into force and effect at once mth- out any fnrther formalities. If any qnestion arose as to the validity of the will as a muniment of title to the realty de- vised it was proved in the ejectment or partition suit, whereby the title to the real estate was being tested, just as a deed would be proved, allowing for the difference in the nature of the two instruments and the formalities of execution.^ At ecclesiastical law testaments bequeathing personalty were required to be probated after the death of testator as a prerequisite to their taking effect in law. There were two kinds of probate at the ecclesiastical law: probate "in the com- mon form" and probate "in the solemn form," or "in the form of law," or "per testes." Probate in the common form was an ex parte proceeding without notice to the next of kin. Probate in the solemn form was a proceeding upon citation of all persons interested, and upon full proof by witnesses for and against the will.^ 1 Kirk V. Bowline-, 20 Neb. 260: emn form, in which all the parties Floyd V. Herrincr. 64 N. Car. 409. interested were cited to appear at 2 "At common law there were two the time of probate, and in which modes of proving a will : The sol- the order admitting the will to pro- LAW OF WILLS. 353 In tracing the origin of their probate jurisdiction, many of the American courts have discussed in more or less detail the history of the English law.^ In England the distinction between the probate of wills and of testaments was expressly abolished by statute in 1857, and since that date both must be probated.^ In the United States the distinction between wills and testaments, as to the necessity of probating each, was recog- nized by a few states in earlier cases,^ and is persisted in in some jurisdictions still.^ In E^ew York probate is "presumptive only" as to wills devising realty,"^ but in practically all the American states bate was conclusive upon all par- ties so cited unless fraud or col- lusion could be shown ; and the common form, in which the will was proved and admitted to probate ex parte, without citation to any one, and in which the probate could be called in question by interested par- ties, and the executor required to repropound the will de novo by original proof in the same manner as if no probate thereof had been had. Both of these modes have been adopted in several of the states by statute, but in this state the common form is the only one which has been adopted. Hubbard v. Hub- bard, 7 Oreg. 42." Malone v. Cornelius, 34 Oreg. 192; 55 P. 536; Luper v. Werts, 19 Oreg. 122. 3 Tompkins v. Tompkins, 1 Story (U. S.) 547); Knox v. Paull. 95 Ala. 505; Luther v. Luther, 122 111. 558; Mears v. Mears, 15 O. S. 90 ; Domestic Missionary Society v. Eells, 68 Vt. 497; Keene v. Corse, 80 Md. 20. * Stats. 20 and 21 Vict. C. 77. s Waters v. Waters, 35 Md. 531; Bell V. Newman, 5 S. & R. (Pa.) 78 ; Brown v. Gibson, 1 Nott & McC. (S. Car.) 326. 6 Webb V. Janney, 9 App. D. C. 41; Perry v. Sweeny, 11 App. D. C. 404, disapproving Barbour v. Moore, 4 App. D. C. 535, citing Tompkins V. Tompkins, 1 Story, 542; Harri- son V. Rowan, 3 Wash. C. C. 580; Den, Thomas v. Ayres, 13 N. J. L. 153; Smith v. Bonsall, 5 Rawle, 80; Rowland v. Evans, 6 Pa. St. 435; Crosland v. Murdock, 4 Mc- Cord Law. 217; Parker v. Parker, 11 Cush. 519; Ballow v. Hudson, 13 Gratt. 672; Hume v. Burton, 1 Ridgw. P. C. 277 ; Montgomery v. Clark, 2 Atk. 379; Massey v. Mas- sey, 4 Harr. & J. 141 ; Warford v. Colvin, 14 Md. 532; Johns v. Hodges, 62 Md. 525; Darby v. Mayer, 10 Wheat. (U. S.) 465; Robertson v. Pickrell, 109 U. S. 608 ; Campbell v. Porter, 162 U. S. 478; White v. Keller, 68 Fed. 796 7Corley v. McElmeel, 149 N. Y. 228 ; so in Florida, Belton v. Sum- mer, 31 Fla. 139. 354 LAW OF WILLS. today wills and testaments alike must be probated as a pre- requisite to their validity.^ Probate may be defined as the solemn judicial act of an officer authorized by law adjudging and decreeing that the instruments offered to be proved or recorded as the last will and testament of deceased is such last will and testament.* The word "probate" is often so used as to include the offering of proof before such authorized officer; and even the entire judicial proceeding which results in the admission of the will to probate. The different states of the Union have statutes upon the subject of Probate, differing widely in form, and yet in most cases strikingly alike in all essentials. There is always an opportunity given for probating a will in an ex parte proceeding before the court having such ju- risdiction in what is practically the old ecclesiastical "pro- bate in common form." In this proceeding only those witnesses offered by the par- ties interested in having the will admitted to probate may testify. Is'o chance is given to those opposing the admission of the will to probate to adduce any evidence to support the issues on their side, though they may cross examine the wit- nesses offered by those who are interested in having the will admitted to probate.^'' Probate in the common form is usually said to be an ex parte proceeding. This is a term which is used by the courts in two distinct senses. In some states it means only that the parties opposed to the admission of the will to probate have no right to introduce evidence opposed to that introduced by 8 Knox V. Paull, 95 Ala. 505; 328; Wall v. Wall, 123 Pa. St. 545; Cummins v. Cummins, 1 Marv. Wilson v. Gaston, 92 Pa. St. 207; (Del.) 423: Luther v. Luther, 122 Wright v. Smithson, 7 Lea (Tenn.) 111. 558; Kostelecky v. Scherhart, 12; Domestic Missionary Society v. 99 lo. 120; Meyers v. Smith, 50 Eells, 68 Vt. 497; O'Dell v. Rog- Kan. 1; Allen v. Froman, 96 Ky. ers, 44 Wis. 136. 313; Babcock v. Collins, 60 Minn. 9 Adapted from Bouvier'a Law 73; Osborne v. Leak, 89 N. Car. Dictionary. 433; Swazey v. Blackman, 8 Ohio lo See Sec. 320. 5; Woodbridge v. Banning, 14 O. S. LAW OF WILLS. ^^^ those who are interested in having the will admitted to pro- bate, though such adverse parties are entitled to notice of the application for admission of the will to probate.^^ In other states it means that the will may be offered for probate without any notice to the parties opposed to its admission.^^ Then there is another proceeding corresponding to the ec- clesiastical "probate per testes," in which those who are in- terested in resisting probate may introduce evidence to sup- port the issues on their side to be established, and may submit the question of the validity of the will to a proper tribunal upon a full and ample hearing, after probate in common form. This second proceeding is generally known as Con- test It is always regarded as a direct attack upon the order admitting the will to probate.^ ^ It is brought about in the different states in different ways. In some, contest is had by appealing from the order of pro- bate to the court which hears the contest.^ ^ In others it is had by a new and independent suit to contest the will, which is, however, always said to be, while not an appeal,^ ^ still in the nature of an appeal from the order admitting the will to probate, and hence a direct attack upon such order.^^ In other jurisdictions this new suit to contest the will assumes the form of a suit to revoke the order admitting the will to probate.^^ Again, in a remaining class of jurisdic- tions probate in common form is the method of commencing every probate, but by the filing of a formal denial of the validity of the will, and a notice of an intention to resist its admission to probate, the probate in common form is changed into probate in solemn form. In a text-book of this size and scope no attempt can be 11 See Sec. 319. Haynes v. Haynes, 33 O. S. 598 ; 12 See Sec. 319. Jones v. Dove, 6 Ore. 188; Brown isMears v. Mears, 15 0. S. 90; v. Brown, 7 Or. 285; Clark v. El- Haynes v. Haynes, 33 O. S. 598. lis, 9 Or. 128 ; Chrisman v. Chris- iiCorly V. Wayne Co. Prob. man, 16 Or. 127; Potter v. Jones, Judge, 96 Mich. 11; 55 N. W. 38j6. 20 Or. 239; Rothrock v. Roth- 15 Bradford v. Andrews, 20 O. S. rock, 22 Or. 551. 2og i'^ Larson's Estate, 71 Minn. 250. ifiOaklev v. Tavlor, 64 Fed. 245: 356 LAW OF WILLS. made to collect the statutes of the different jurisdictions and to cite the cases decided thereunder; nor would such an attempt be ])rofitable in comparison with the value of the material that would necessarily be excluded thereby. Fur- ther, the statutes are changed in outward form from time to time. What is sought in this chapter is to discuss the gen- eral principles which underlie these diverse statutes, prin- ciples which are substantially uniform, partly from their common descent from the English law and partly from the necessities of the case. While these proceedings are purely statutory, the legislature can not, under guise of changing the procedure, alter the law so as to prevent contest of wills executed by testators who have died before the change of the law, since property rights are fixed at testator's death.^* §313. Necessity of probate. Under the common law probate was not necessary for a will passing real property, though it was for a testament passing personalty.^'' By modern statutes this distinction has been abolished in almost every jurisdiction.^*' In the District of Columbia the probate of a will devis- ing lands was formerly of no effect whatever, but by subse- quent statute it was made prima facie evidence of the validity of such will.^^ Under modem statutes a devisee can not acquire any title to the realty devised to him until the will whereby it is devised has been probated.^^ 18 Jones V. Robinson, 17 O. S. 423; Luther v. Luther, 122 111. 171. See Sec. 22. .558; Seery v. Murray, — lo. — ; 77 19 See Sec. 312 and cases there N. W. 10.58; Meyers v. Smith, 50 cited. Kan. 1; Miller v. Swan, 91 Ky. 36; 20 See cases cited in note follow- Pratt v. Hargreaves, 76 Miss. 955 ; ing the next note. 71 Am. St. Rep. 551; Fotheree v. 21 Robertson v. Piekrell, 109 U. S. Lawrence, 30 Miss. 416; London 608 ; Barbour v. Moore, 4 App. D. v. R. R. Co., 88 N. Car. 584 ; Swazey C. 535. V. Blackman, 8 Ohio, 5; Wilson v. 22McClaskey v. Barr, 54 Fed. Tappan, 6 Ohio 172; Douglass v. 781; Trawick v. Davis, 85 Ala. 342; Miller (Common Pleas), 3 Ohio N. Knox V. Paull, 95 Ala. 505; Cum- P. 220; Roelke v. Roelke, 103 Wis. mins V. Cummins, 1 Marv. (Del.) 204. LAW OF WILLS. A will which has not been probated can not be used m evi- dence to support the title of the devisee ;^^ and when a .vill was probated but the order of confirmation was vacated by the order of the court, such court having power to make tiiis order, such will was not admissible to support devisee s title in an ejectment suit.^* Attaching an instrument, in effect a will, to a pleading as an exhibit does not avoid the necessity for the adversary party to show that such instrument was probated.^^ Probate has always been regarded as indispensable to allow a testament passing personal property to take effect. bo essential is probate to the validity of a will and testament that some methods of approaching the subject of wills treat the topics of capacity, execution, the inherent elements and the like as merely of importance because they are conditions pre- cedent to probate; and regard probate as the essentially im- portant step, in the Law of Wills. This is merely an example of the temptation, always present even under modem procedure, of classifying substantive law upon a basis of procedure and treating substantive law as- of importance simply because upon certain conditions of law and fact, the courts take certain judicial action. This is, of course, an inversion of the true basis of modern law. ^ Judi- cial action follows substantive law as dependent upon it and secondary to it. If the cause is correctly presented and de- cided an order admitting the will to probate will always fol- low, if the facts show a will valid by the rules of substantive law'. In actual practice, however, blunders are occasionally made by the attorney in presenting a cause, and error is some- times made bv the court in deciding the case. The actual workma: of the system of law, as far as wills are concerned, Is with^few exceptions, that any dispositive paper actually ad- mitted to probate is good as a will until set aside by direct attack in the proper manner, no matter what defects there may 23 Inge V. Johnston. 110 Ala. 650. 2.5 Trawick v. Davis, 85 Ala. 342. 24 Snuffer v. Howerton, 124 Mo. 26 See Sec. 312. 637. 358 LAW OF WILLS. have been in the execution of the will, the capacity of the tes- tator and the like; while a perfect will is of no validity if refused probate, until the error is corrected in the manner prescribed by the rules of procedure. From a practical stand- point, then, probate and contest are the critical periods for a will. §314. What must be probated. The probate acts are so general in their terms as to require every instrument of a testamentary character to be probated as a pre-requisite to its validity. When only testaments of personalty were required to be probated, a will which disposed of both realty and personalty had to be probated.^'^ In some special cases questions have arisen as to the neces- sity of probating particular instruments. Thus, where an extrinsic document is so referred to in the will as to be a part thereof, it is held that such document need not be pro- bated.28 On the same principle it is held that where a codicil refers to a will, and makes specific changes therein, the probate of the codicil operates as a probate of the unrevoked parts of the will, and no further proof is necessary.^^ Where the codicil refers clearly to the will, the will need not be proved if the codicil is.^*^ Ordinarily a codicil is so con- nected with the will to which it refers, that it can not be pro- bated apart from such will.^^ While it may be possible in some cases to probate a codicil without the will to which it refers, it is only where the inten- 27Rumph V. Hiatt, 35 S. Car. 3i /,j re Harris, 2 Prob. & D. 83 ; 444. In re Crawford, 15 Prob. Div, 212; 28Balme's Estate (1897), P. 261; De La Saussaye, Goods of, L. R. 3 66 L. J. P. 161 (where the docu- P. & D. 42; In re Honeywood, 2 ment referred to was a lengthy li- Prob. & D. 251 ; Lord Howden's brary catalogue); Willey's Estate Case, 43 L. J. P. 26; Fry v. Mor- (Cal.), 56 Pac. f50; 60 Pac. 471; rison, 159 111. 244; Pepper's Estate, Tuttle V, Berryman, 94 Ky. 553. 148 Pa. St. 5; Hood's Estate, 21 29 Hobart v. Hobart, 154 111. 610. Pa. St. 106. 30 Fry V. Morrison, 159 111. 244. LAW OF WILLS. 359 tion of the testator that the codicil is to operate independent of the will is manifest.'^ If a codicil to a will can not be found the original will may nevertheless be probated without it.33 In some jurisdictions where a will is not signed at the end, the part above the signature will be regarded as a valid will and admitted to probate as such.^^ While this case is open to dispute concerning the validity of the will as a whole, there is no doubt that the addition of a writ- ing below the signature after execution does not invalidate the will, but such writing should not be admitted to probate.^^ But a will, in form a joint will, can not be pro- bated as the will of both parties thereto during the lifetime of either of them, but it may be offered as the separate will of each.^^ A will which is executed in due form, and is partly valid and partly invalid, must be admitted to probate.^^ It was said in an obiter that a will appointing a testamentary guard- ian only need not be offered for probate.^^ Where testator executes separate wills, one referring to property in England, and the other to property in a foreign country, and appoints separate executors for each of such wills, the English courts will not admit to probate the will referring exclusively to property in a foreign country, even though at his death testator was domiciled in England.^^ But it was required to show by affidavit that the personalty disposed of by each will was in fact, at the time of testator's death, within the country to which the will made reference,^^ and where a will, which passed property in one jurisdiction, con- 32 Youse V. Forman, 5 Bugli Crane's Will, 42 N. Y. Supp. 904. (Ky.) 337; Pepper's Estate, 148 38 Slach v. Perrine (D. C. App.), Pa. St. 5. 23 Wash. L. Rep. 853. 33 Sternberg's Estate, 94 lo. 305; 39 Goods of Murray (1896), Prob. St In re Gee, 78 Law T. Rep. 843. 65: Tn re Eraser (1891), Prob. 285; 35 /n re Gilbert's Estate, 78 Law Tamplin, Goods of, (1894), Prob. T. Rep. 762. See Sec. 186. 39; In re Seaman (1891), Prob. 36 Davis's Will. 120 N. Car. 9; 38 253; In re De La Rue, L. R. 15 P. L. R. A. 289; Bank v. Bliss, 67 D. 185; In re Calloway, L. R. 15 P. Conn. 317. D. 147. 37McClary v. Stull, 44 Neb. 175; *o /» re Seaman, 1891 (P.), 253. 360 LAW OF WILLS. firmed an earlier will which passed property in another juris- diction, it was held that both wills should be probated to- gether.^ ^ In some jurisdictions a will may be corrected at probate for mistake, and probated as corrected.'*^ §315. The court of probate powers. In the different states, tribunals are generally established having jurisdiction in matters of probate in common form, or of probate generally, known variously as the orphan's courts, courts of surrogate, probate courts and the like,"*^ and in some states probate power is left to the clerk of the specified court.^^ Probate jurisdiction is generally exclusively vested in these courts. When this is the case, equity can not interfere in mat- ters of probate.'*^ ISTor can equity in a suit brought against one who had altered a deed, and suppressed a will, decree pro- bate of such will as incidental relief ; ^^ especially where full relief can be had in probate tribunals.^''' A court of equity can not enjoin the custodian of an al- leged invalid will from offering it for probate,^^ and can not order such will to be cancelled.^^ Further, the federal court 41 In re Lockhart, 1 Rep. 481 ; 69 46 McDaniel v. Pattison, 98 Cal. Law T. 21; 57 J. P. 313. 86. 42 /n re Boehm (1891) P. 247. 47 Wells, Fargo & Co. v. Walsh, 43 Foley's Estate, — Nev. — ; 87 Wis. 67. (Thus a creditor can 51 Pac. 834; Merriam's Will, 136 not compel the executor to prove N. Y. 58; Walker's Will, 136 N. a will of his non-resident testator Y. 20; Walton v. Williams (Okl.), by a suit in equity. The creditor 49 Pac. 1022; Tozer v. Jackson, has a complete remedy by produc- 164 Pa. St. 373. ing an authenticated copy of the 44 Davie v. Davie, 1892, — Ark. will and having t recorded in the — ; 18 S. W. 935; De las Fuentes county court.) v. McDonald, 85 Tex. 132; Blanch- 48 Israel v. Wolf, 100 Ga. 339. ard V. Wilbur, 153 Ind. 387; 55 N. {Contra in Cobb v. Hanford, 88 E- 99- Hun, 21, where an executor named 45 Cilley v. Patten, 62 Fed. 498 ; in a will was enjoined from offer- Oakley V. Taylor, 64 Fed. 245: Ew- ing it for probate on the ground ell V. Tidwell, 20 Ark. 136; Israel that the property named in it did V. Wolf, 100 Ga. 339; Cousens v. not belong to decedent.) Advent Church of Biddeford, 93 49 Israel v. Wolf, 100 Ga. 339 ; Me. 292, Langdon v. Blackburn, 109 Cal. 19. LAW of' wills. 361 will not order a will to be cancelled when the state equity courts have no such jurisdiction.^^ But in a New York case an injunction was allowed against probating a will by which a pre-existing will made in pui^uance of a contract upon val- uable consideration was revoked.^^ Where the powers of the probate tribunals are inadequate, equity will aid.^^ But in many jurisdictions, courts having equity powers, or courts in code states, which correspond to the courts of equity powers, may hear and determine the con- test of a will which has been presented for probate, and pro- bated in common form f^ and where the state courts of equit- able jurisdiction have power to hear and determine contests of wills already probated, the United States courts may, in cases where the parties are citizens of different states and the amount involved is sufficient, take jurisdiction of such contests.^^ In any case, a court not especially authorized by law can not ad- mit a will to probate, as incidental to its general judicial func tions.^^ A will disposing of property should be offered for original probate in the court within whose jurisdiction testator was domiciled at the time of his death, irrespective of where he might have died.®^ In case of a married woman this is prima facie the jurisdic- tion in which her surviving husband is domiciled ; so that her will must be offered for probate there, irrespective of where she may have died.^''' Under most systems of law a will may be offered for pro- bate where the property of decedent is situated, without ref- erence to his domicile. But this is an ancillary probate only, soCilley v. Patten, 62 Fed. 498. pra, the court sustained a suit to 51 Cobb V Hanford, 88 Hun, 21. contest a will instituted before* the 53. Rote V. Stratton, 2 Ohio N. will was probated. P. 27; 3 Ohio Dec. 156. ss Campbell v. Porter, 162 U. S. S3 Wright V. Jewell, 9 Manitoba, 478. 607; see Sec. 312. se Miller v. Swan, 91 Ky. 36; 5* Gaines V. Fuentes, 92 U. S. 10 ; Manuel v. Manuel, 13 O. S. 458: Ellis V. Davis. 109 U. S. 485 ; Brod- Converse v. Starr, 23 0. S. 491 ; erick's Will, 21 Wall. 503: Rich- Walton v. Hall, 66 Vt. 455. ardson v. Green, 61 Fed. 423, dis- 57 Wicke's Estate (Cal.) (1900), tinguishing In re Cilley, 58 Fed. 60 Pac. 867. 977. In Richardson v. Green, su- 362 LAW OF WILLS. and aifects the property situated in such jurisdiction alone.^* The court within whose jurisdiction property is situated is not precluded from admitting the will to probate by the ac- tion of the court of testator's domicile in admitting the will to probate there.^^ In some cases courts have refused to admit to probate the will of testator domiciled in their jurisdiction where it ap- pears that no property rights can be controlled thereby. Where the only property disposed of by will is realty situated in an- other jurisdiction,^*^ or is personal property situated in a for- eign country, the courts of the jurisdiction where testator was domiciled at the time of his death, have refused to entertain probate jurisdiction thereof.®^ A provision in a will dispensing with bond and with all pro- ceedings in the court having probate powers, after inventory and appraisement, does not oust such court of its jurisdic- tion.62 A court of probate powers may, if due notice is given, ad- mit a will to probate in any part of the county.^^ §316. Effect of delay in probate. In many states some penalty is imposed for delay in probate. Where a beneficiary withholds a will from probate beyond a specified time, it is generally provided that he for- feits his rights thereunder.®^ If he was entitled by the law 58 Robertson v. Pickrell, 109 U. S. ei Goods of Tamplin (1894), 608; Gordon's Will, 50 N. J. Eq. Prob. 39; 6 Rep. 533. 397 ; Fisher's Will, 49 N. J. Eq. 62 Prather v. McClelland, 76 Tex. 517; Blymeyer's Will, Goebel 574. (Ohio), 14; Pepper's Estate, 148 63 La Grange v. Ward, 11 Ohio, Pa. St. 5; Tarbell v. Walton, 71 Vt. 257. (At any rate such order is 406; 45 Atl. 748; Walton v. valid against collateral attack.) Hall, 66 Vt. 455; Frame v. Thor- 64 Foote v. Foote, 61 Mich. 181. mann, 102 Wis. 653. Doubted in This does not apply to foreign wills. Kansas, Meyers v. Smith, 50 Kan. Carpenter v. Denoon, 29 O. S. 379, 1, on same theory as administra- but though the rights of the devisee tion case of Perry v. Railroad, 29 may be thus forfeited, the will may Kan. 420. be probated nevertheless. Blymey- 59 Frame v. Thormann, 102 Wis. er's Will, Goebel (Ohio), 14, 653. 60 In re Earhart, 50 La. Ann. 524: 23 So. 476. LAW OF WILLS. ^^^ or the will to administer the estate of testator, he is held to renounce his rights by such delay, and his ignorance of the law is no excuse/*^ no exuuisc. As an additional means of coercing the custodian of a will to produce it, power is usually given to the court of probate to enforce its production by contempt proceedings, and it is m many states made a crime to conceal, suppress or destroy a will. Long delay in the production of a will does not m most states operate to prevent its admission to probate.«« Still it is a circumstance of suspicion and may justify the court of probate jurisdiction in revoking an order of probate made on formal proof, and in requiring full proof of the validity of the will in a contest." But in a recent Kentucky case it was held that an application for admission of a will to probate was an action in the sense of the statutes of limitation of actions, since the word action included a proceeding in any court. The right to offer a will for probate was not therefore limited by the time for granting original administration, but was limited by the statute fixing ten years as the period^of limitation for an action for relief not otherwise limited.^* §317. Who may propound a will for probate. Under early procedure it was often said that the executor was the proper person to propound the will for admission to probate,^^ and where the executor is erroneously named and described in the will, he may have it probated upon showing his correct name and description.'^*^ Under modern statutes any person interested in having the will admitted to probate may propound it. The expres- 65 Keith V. Proctor, 114 Ala. 676; «» Allen v. Froman, 96 Ky. 313. 21 So 50'> 69Baskett'9 Estate, 78 Law T. 66 Waters v. Stickney, 12 Allen Rep. 843; Redmond v. Collins, 4 (Mass.)l; Besancon v. Brownson, Dev. L. (N. Car.) 430; Ford v. 39 Mich. 388; Vance v. Upson, 64 Ford, 7 Hump. (Tenn.) 92. ^g^ 266. 7f>Baskett's Estate, 78 Law T. 67 Gordon v. Old, 52 N. J. Eq. Rep. 843. 317. 364 LAW OF WILLS. sion 'any person interested' means any person having a bene- ficial interest under the will, such as a devisee or legateeJ^ And where such a party appears in support of the will the executor who propounded it can not dismiss his application for probate/^ It is generally, under these statutes, held that one who is named executor under the will may propound it for probate.^^ One who is a creditor of testator, and of a legatee, has been held to be such a "party interested" as to have a right to propound the will. "Whoever has a right to offer a will in evidence, or to make title under it, may in- sist on having it proved." "^^ Where the will attempts to pass title to property, ov to give control thereof to any person, such person is re^avded as » 'party interested in having the wdll admitted to probate^' though subsequent proceedings may prevent Fueh gift froiu taking effect. Thus, where testator attempted! to establish a charitable home, which was to be in charge of a certain church, and to bequeath property to such home, it was held that the church niight propound the will, for admission to probate. '^^ An application which fails to show that the parties pro- pounding the will are beneficially interested in its admis- sion to probate is insufficient.'''® §318. Procedure at probate. — Petition. In the absence of a statute expressly requiring it, a written petition for admitting a will to probate is not necessary to give the court jurisdiction over the probate of the ^vill.'^" In 71 Eliot V. Eliot, 10 Allen (Mass.) 75 Vestry of St. John's Parish v. 357 ; Mower v. Verplanke, 105 Mich. Bostwick, 8 App. D. C. 452. 398; Taylor v. Bennett, 1 Ohio C. 76 Doane v. Mercantile Trust C. 95; Elwell v. Convention, 76 Company. 160 N. Y. 494. Tex. 514; Schultz v. Schultz, 10 7- Deslonde v. Darrington, 29 Gratt. (Va.) 358 Ala. 92: St. Leger's Appeal, 34 72Lasak's Will, 131 K Y. 624. Conn. 434: In re Storey, 120 111. 73 Kennard v. Kennard, 63 N. H. 244 ; Seery v. Murray, 107 lo. 303. 384; 77 N. W. 1058. 74 Stebbins v. Lathrop. 4 Pick. (Mass.) 33: Wells, Fargo Co. v. Walsh, 87 Wis. 67. LAW OF WILLS. 865 some jurisdictions, however, such written petition is required by statute.'^* §319. Notice. Upon the filing of the petition for admitting the will to probate, or upon oral application made therefor, it is usual y required that a proper notice of the pendency of the appli- cation be served, either by sending a copy of such notice to the persons interested, or by publication in a newspaper, or both.'^^ 78Malone v. Cornelius, 34 Oreg. 192; 55 Pac. 536. Where not re- quired by statute, a written appli- cation is often required by the rules of the probate court. A form in use in many Ohio courts is here given: In the matter of the last will and testament of A B, deceased. Probate court, Franklin County, State of Ohio. To the Probate court of Franklin County, Stete of Ohio. The undersigned — . - respectfully represents to this court that he is a of A B, deceased, late of Township County, fetate of , and that said A. B. died on the — (jf^y of , A. D. — ; that at and im- mediately prior to his death he was domiciled in said Township, County, State of ; that he left surviving him his widow, C. D., who resides at , and the following named persons, who are all the heirs and next of kin of said A. B., deceased, to wit: E. F., a son of said A. B., deceased, H. I. (etc.). Your petitioner further rep- resents that said A. B., deceased, left a last will and testament, which he herewith produces, offers for pro- bate and files with this court. Your petitioner therefore respectfully re- quests this court to direct the man- ner in which notice of the pendency and object of this proceeding shall be given to said C. D., widow of said A. B., deceased, and to said , next of kin (resident of the State of ), and the time at which such notice shall be given; and to fix a time for the hearing of this application; and youft- peititioner prays that upon said hearing said last will and testament may be ad- mitted to probate and recorded. Sworn to before me by the afore- said T. M., and by him subscribed in my presence this — day of , A. D. 19—. , Prob. Judge. 79 Curtis V. Underwood, 101 Cal. 661; 36 Pac. 110, 397; Bacigalupo V. Superior Ct., 40 Pac. 1055; 120 Cal. 421; 52 Pac. 708; Dugan v. Northcutt, 7 App. D. C. 351; Lar- son's Estate, 71 Minn. 250; 73 N. W. 966; Heminway v. Reynolds, 98 Wis. 501. A form of the order fixing tlie time for hearing upon the applica- tion to admit the will to probate, and prescribing the notice to be giv- en, is as follows: In the matter of the will of A. B., deceased. Court, County, , Ohio, A. D. 19 — . This day an instrument in writing, purporting to be the last will and testament of A. B., deceased, late of Town- 366 LAW OF WILLS. Where notice is required, the order admitting the will to probate may be vacated upon petition of the next of kin upon whom proper notice of the pendency of the probate pro- ceedings has not been served.*^ In direct attack, an order of probate can not be sustained where the record shows that the hearing was not had on the day for which it was set, and the evidence, while showing that notice was published, does not disclose the contents of the notice or the length of time for which it was published.*^ So where a will was admitted to probate upon insufficient evidence, and without any notice to testator's father or broth- ers, his heirs, and on application to vacate order of pro- bate the only contradiction of evidence tending to establish these facts, was an affidavit of the administrator that he be- lieved that these heirs had received notice in time to appearand object, it was held that in the absence of any facts on which ship, in this county, was produced in open court for probate, and the application of L. M., a of said A. B., deceased, for the admission of said will to probate, was filed. It is now ordered that said instru- ment in writing be filed in this court, and that due notice thereof and of said application to admit the same to probate and record as the last will and testament of said A. B., deceased, be given to the widow and next of kin of the testator, resident of (the State of ), — days prior there- to that the application will be for hearing before this court on the — day of , A. D. 19—, at — o'clock, — M. ; and that said no- tice shall be in writing and shall be served on said parties person- ally or by leaving copies thereof at their usual place of residence. A form of notice approved by many courts is as follows: Notice. — Probate Court, County, State of Ohio. In the mat- ter of the last will and testament of A. B., deceased. Notice. To . You are hereby commanded to noti- fy , giving at least — days' notice! thereof in writing, that on the — day of A. D. 19 — , an instrument in writing, purporting to be the last will and testament of A. B., deceased, late of -^ Township, in said county, deceased, was produced in open court, and an application to admit the same to probate was on the same day made to said court. Said applica- tion will be for hearing before this court on the — day of , A. D. 1900, at — o'clock, — M. Hereof fail not, but of this writ and serv- ice thereon make due return. Wit- ness my signature, as Judge of the Court, and the seal of said court, this — day of , A. D. 1900. , Probate Judge. 80 Herring v. Ricketts, 101 Ala. 340; In re Harlow, 73 Hun, 433. 81 Heminway v. Reynolds, 98 Wis. 501. LAW OF WILLS. ^^* to base sucli belief, it was error for tbe court to refuse to vacate such order.^^ Where the parties actually appear in the case, the ques- tion of defective publication of the notice for application for probate can not be raised.^^ A contestant can not take advantage of failure to notify one of the next of kin. This omission is not prejudicial to him as "probate upon a proper application without notice to any of the parties entitled thereto would not be void but merely voidable." ^^ The fact that the notice was served as required by the spe- cial statute, and not as required by the statute on the sub- ject of service in general, is no reason for attacking the probate.®^ Nor where notice is served upon the person in- tended, will a slight mistake in the name, such as "Helen Majora Hamilton," instead of "Ellen Majora Hamilton," pre- vent the court from obtaining jurisdiction.^^ Notice to the executor does not bind non-resident heirs.«^ In other states the probate in common form is even more closely modelled upon the English ecclesiastical probate, and no notice whatever is required.^^ 82 Heminway v. Reynolds, 98 Wis. sary to give the court jurisdiction, gQj and the production of competent 83 Dugan V. Northcutt, 7 App. evidence of its validity. Whenever jj (-, ggj an instrument purporting to be the 84 Reese" T. Nolan, 99 Ala. last will and testament of a de- 203- 13 So 677; Hall v. Hall, 47 ceased is presented for probate, it Ala.' 290; Otis v. Dargan, 53 Ala. is the duty of the court to hear ,„g the witnesses as to its due execu- 85 Hamilton's Estate, 120 Cal. tion, and if they show eo. parie the 421- 52 Pac. 708. instrument offered to be the will 86 Hamilton's Estate, 120 Cal. of the deceased, it must be admitted ^j to probate and letters testamentary 87Feuchter v. Keyl, 48 O. S. 357. issued as a matter of course." Ma- ss-Under our statute no cita- lone v. Cornelius, 34 Oreg 192 ; tion is necessary or required, but 55 P^536; Yo. v McCord 74 IlL the probate of a will is wholly an 33; Capper's Will, 85 lo. 82 5. ex parte proceeding. It is made by N. W. 6; Bent v. Thompson 5 N. the presentation of the will to the M. 408; 23 Pac. 234; Laughton v. proper county court, together with Atkins. 1 Pick. 53^5; Lonng v.Stein- a verified petition for its admission eman, 1 Met. 204; Marcy v. Mar- to probate, setting forth facts neces- 368 LAW OF WILLS. Where no notice is required for probate in the common form, it is error for the court to refuse to proceed to take proof, or to probate the will, until notice can be given to the parties interested.^^ §330. Examination of witnesses ex parte. Where a separate proceeding is provided for by statute in order to contest the will, the proceeding in the nature of pro- bate in common form is usually ex parte, in the sense that only the subscribing witnesses, and such others as those in- terested in having the will admitted to probate may see fit to offer, are allowed to testify, and no opportunity is given to those who are interested in opposing the probate of the will to introduce evidence.^'^ But the adversary parties who are present may cross-examine the witnesses offered by those who are interested in having the will admitted to probate.^^ cy, 6 Met. 360; Crippen v. Dexter, 13 Gray, 330; Arnold v. Sabin, 1 Cush. 525; Bonnemort v. Gill, 167 Mass. 338. 89 Malone v. Cornelius, 34 Oreg. 192; 55 Pac. 536. 90 Richardson v. Green, 61 Fed. Rep. 423; Feuchter v. Key], 48 0. S. 357; M. E. Missionary Society V. Ely, 56 O. S. 405; Hathaway's Will, 4 O. S. 383; In re Stacey, 6 Ohio Dec. 499; Malone v. Corne- lius, 34 Oregon, 192; 55 Pac. 536. Where such rule is in force the legatees are not always parties "in- terested in having such will admit- ted to probate." If their interest appears adverse to the probate of the will, they can not offer evi- dence. In re Jones, 2 Ohio N. P. 194. 91 St. Leger's Appeal, 34 Conn. 434; Gray v. Gray, 60 N. H. 28. In Gray v. Gray, 60 N. H. 28, it was held that on probate in com- mon form, the appearance of the heirs and next of kin by attor- ney, who cross-examined the wit- nesses offered by proponent, did not of itself waive the notice re- quired by statute so as to amount in legal effect to probate in sol- emn form. The right of cross-ex- amination was tacitly recognized rather than expressly adjudicated. In Ohio the local practice in the Probate Courts is not uniform upon the question of the right to cross-examine witnesses at probate. In some courts the right is refused; in others it is granted. In Jones's Estate, 2 Ohio N. P. 190, cross-ex- amination of witnesses at probate of ordinary wills was spoken of as a practice which h§id grown up, "which may not be commendable," but which was "the proper view to take of a case like this"; that is, in an application to admit a spoliated will to probate. Under the peculiarities of Ohio practice it is almost impossible that this question should be pre- sented for decision to a reviewing court on error. See Sec. 323. LAW OF WILLS. 309 This point is in dispute in many jurisdictions. If the local statute is specific it, of course, controls, but it rarely is, and the law must be reasoned out .on analogy. In jurisdictions where upon contest the order of probate has no force at all, and the burden is upon proponents throughout, it must be admitted that no injustice is done by refusing the right of cross-examination at probate. But where the effect of the order of probate is to make out a j)rima facie case on contest in favor of the will,* or where the evidence of the subscribing witnesses given at probate is admissible on contest as if it were a deposition,''^ it seems clear upon principle that unless the statute very clearly precludes it, cross-examination should be allowed at probate. If it is not allowed, some witness who is examined at probate may be dead, sick or beyond the juris- diction of the court on contest. In such case, it might easily happen that the will might be established on contest by the evidence of witnesses whom contestants had no opportunity to examine, and who might have modified their testimony very materially on cross-examination. In probate in the common form the subscribing witnesses should be called if in the jurisdiction of the court, and avail- able.^^ Otherwise, if they are alive, it is usually provided that a commission issue with the will annexed to take their depositions. If the subscribing witnesses do not make out a prima facie case in favor of the will, the parties interested in having the will admitted to probate are not concluded thereby, but may call other witnesses in order to make out a prima facie case;^^ unless, of course, the statute specifically pro- vides that only the subscribing witnesses may testify at pro- bate in common form. It is only required that the proponents of the will make out a prima facie case, to entitle the will to admission to probate.^^ It is often provided that the testimony of witnesses offered at probate shall be reduced to writing and signed by them. * See Sec. 330. Exrs. v. Sims, 90 Va. 588 ; Lough- 92 See Sec. 367. ney v. Loughney, 87 Wis. 92. See 83 See Sec. 366. ' ?ec. 366. 64 Ludlow's Estate, 7 Ohio Dec. 95 Ludlow's Will, 6 Ohio Dec. 104; 4 Ohio N. P. 155; Whitelaw's 344; 4 Ohio N. P. 155. 370 LAW OF WILLS. Such provision has been held to mean that the affidavits of these witnesses should be offered in evidence, instead of viva voce testimony.^*' Such provisions are directory not juris- dictional. Where the court omitted to comply with this pro- vision literally, but set out on the record the substance of their testimony, it was held to be a sufficient compliance with the statute. ^^ Whether the statute requiring the testimony of the witnesses to be reduced to writing makes it necessary to take their testimony by affidavit, or not, the practice is very ancient and is well established in manv courts.^^ »6 Baker v. Cravens, 150 Ind. 199. "We have no doubt that the stat- utory requirement that the proof shall be entered of record contem- plated that, ordinarily, proof should be made by affidavit.' Baker v. Cravens, 150 Ind. 199. 97 Reese v. Nolan, 99 Ala. 203. 98 The following form of affi- davit of subscribing witness is in common use: (Affidavit of subscribing wit- ness.) (Style of case and court.) The State of , County, ss. I, C D , being first duly sworn in open court this — day of — , A. D. 19 — , do depose and make oath that I was present upon the — day of , A. D. 19 — , at the execution of the last will and testament of A B, deceased, hereunto annexed; that I saw said testator, A B, sub- scribe said will (and heard him publish and declare the same to be his last will and testament), and that I subscribed my name as witness to said will at the request of said A B, and in his presence (and in the presence of (the other subscribing witness).) I do further depose that at the time of the execution of said will by said A B , that said A B was of full age (to wit, of about the age of ) ; that he was of sound mind and memory, and that he was under no restraint. (Signed) C D. Sworn to before me by the afore- said C D in open court on the day and year above mentioned and by him then and there subscribed in my presence. , Probate Judge. (Form of reduction of the evi- dence of the subscribing witnesses to writing.) The subscribing wit- nesses to said will, after being duly sworn to speak the truth, the whole truth and nothing but the truth, in relation to the execution of said will, testified in open court which testimony was reduced to writing and by them respectively subscribed, and is in words and figures follow- ing, to wit: The State of , County, s. s.: Court. I, C D , being first duly sworn in open court this — day of — , A. D. 19 — , depose and say that I was present at the exe- cution of the last will and testa- ment of A B, deceased, hereunto annexed, on the — day of A. D. 19 — ; that I saw said testator, A B, subscribe his name to said will (and heard him publish and declare the same to be his last will and testament) ; and I further de- pose and say that said A B at the time of the execution of said last will and testament was of full age, of sound mind and memory, and not under any restraint, and that I signed the same as a witness LAW OF WILLS. 871 §321. Contest. — Limitations. In most states a certain period is fixed by statute within which a will once admitted to probate may be contested. This period of time is different in different jurisdictions, extend- ing from one to five years. Whatever the limit, however, it is well settled that contest is not governed by the ordinary statute of limitations, but by its own special statute, wherever such a one exists.^^ In Pennsylvania, the fact that a caveat thereto in the presence of said tes- tator, A B, and at his request. Sworn to before me by the afore- said C D, and by him subscribed in my presence, the day and year above written. , Judge. (Form of order admitting will to probate.) In the matter of the will of A B, deceased. Be it re- membered: That heretofore, to wit, on the day of , A. D. I'J — , an instrument in writing pur- porting to be the last will and tes- tament of A B, deceased, late of Township, in this county, was produced in open court for probate, and application was made for ad- mission of said instrument to pro- bate as the last will and testament of A B, deceased, by L M, a of said A B, deceased; and it was ordered by the court that said in- strument be filed in this court, and that notice in writing of the filing of said instrument and of the ap- plication to admit said instrument to probate as the last will and tes- tament of A B, deceased, and of the time of the hearing of said ap- plication be given to the widow and next of kin ( resident in the State of ) at least — daj^s prior to said hearing; and it now being shown to the satisfaction of the court that due notice of the filing of said will and of the application to admit the same to probate and record in this court has been given to the widow and next of kin of the tes- tator, pursuant to said former order of this court, thereupon this day came C D and E F, the subscribing witnesses to said will, who, being first duly sworn and qualified, tes- tified to the due execution and at- testation of said will ; which testi- mony was reduced to writing, by them respectively subscribed and filed with said will. Whereupon the court finds that the aforesaid instrument in writing is the last will and testament of A B, de- ceased ; that the same was duly exe- cuted and attested as required by law; that the said testator at the time of signing the same was of lawful age, of sound and disposing mind and memory, and under no undue or unlawful restraint what- soever. It is therefore by the court ordered that the said will be admitted to probate, and the same, together witb the testimony of the witnesses above named, be entered to record in this court. 99 Bacigalupo v. San Francisco, Super. Court, 108 Cal. 92; Sbar- boro's Estate, 63 Cal. 5; Storrs V. St. Luke's Hospital, 180 111. 368 ; Keister v. Keister, 178 111. 103; Evansville, etc., Co. v. Winsor, 148 Ind. 682; Bartlett v. Manor, 146 Ind. 621; Duff v. Duff, — Ky. — ; 45 S. W. 102; Justus's Succession, 45 La. Ann. 100: Meyer v. Hender- son, 88 Md. 585; 42 Atl. 241; Schlottman v. Hoffman, 73 Miss. 1S8: Stowe v. Stowe, 140 Mo. 594; 372 LAW OF WILLS. was filed, does not prevent the judgment from becoming con- clusive upon the lapse of the time fixed by statute.^ '^'^ The statute of limitations in contests differs from the or- dinary statute in that it is jurisdictional in its nature, and can not be waived by consent of the parties, since after the limit fixed by statute, the court has no jurisdiction over the subject-matter of the contest.^ °^ Where the ground of contest was unkno\\Ti to the heir, and was not discovered by him until after the limit for contest had elapsed, it was held that such heir could not contest the will under the statute, and that equity would grant him no relief ;^°^ even where the cause of contest was fraud, and this was concealed till the statutory time for contest had elapsed.i*^^ In jurisdictions where the grounds of contest must be set out, no addition can be made thereto after the time fixed by statute has expired.^ °^ But where the amendment offered only re-stated in a fuller manner the issuable facts of the original petition, it may be permitted.^ °^ In some states it is held that a decree admitting a will to probate may be vacated for fraud or mistake without regard to the time for contesting the wilL^^*^ This right generally rests on specific statutory provisions. Its exercise prevents the good results of stability and certainty which a fixed peyiod for con- test was designed to give. In some states wliere this right is recognized it is said that interv'ening rights obtained under the will can not be disturbed.^ "^^ In other states this right is de- nied after the end of the term at which the order admitting 41 S. W. 951 ; Hughes v. Boone, los Luther v. Luther, 122 111. 558. 81 N. Car. 204; Cox's Estate, 167 lo* Meyer v. Henderson, supra. Pa. St. 501; Miller's Estate, 166 los Wilson's Estate, 117 Cal. 280, Pa. St. 97; Nichol's Estate, 174 Pa. modifying same case, 117 Cal. 262. St. 405. 106 Snuffer v. Howerton, 124 Mo. 100 Nichol's Estate, 174 Pa. St. 637; Gordon v. Old, 52 N. J. Eq. 405. 317; In re Janes, 87 Hun, 57; Ham- iwi Meyer v. Henderson, 88 Md. bleton v. Yocum, 108 Pa. St. 304 ; 585; 42 Atl. 241. Vance v. Upson, 64 Tex. 266; Good- 102 Bartlett v. Manor, 146 Ind. ell v. Pike, 40 Vt. 319. 621; 45 N. E. 1060; Stowe v. Stowe, iot Waters v. Stickney, 12 Allen 140 Mo. 594; 41 S. W. 951. (Mass.) 1. LAW OF WILLS. 873 the will to probate was rendered,^ ^** It is fairly well settled, however, that the probate court will not have any authority to set aside an order admitting a will to probate, unless specific- ally authorized by statute.^ '^'^ The statutes limiting the time within which a will may be contested generally contain certain exceptions in favor of in- fants, persons of unsound mind, and the like. These excep- tions exist only by force of the statute, and the statutes are to be strictly construed. Thus, where the statute made an excep- tion in favor of those who were absent from the state, it was held that, where an heiress came into the state for a short visit when she was a child, after the probate of the will, she could not, after the expiration of the time limit, claim exemption from the provisions of the statute on the ground that she had been without the state.-'^^ Where an exception to the statute of contest generally, such as infancy, is omitted from the stat- ute controlling the contest of wills of a particular class, as foreign wills, the courts can not add such exception to the pro- visions of the statute controlling the particular class.^^^ The legislature has ample power to omit all disabilities as bars to the ojieration of the statute, if it sees fit.-^^^ In analogy to a familiar principle of the Statute of Limi- tations, disabilities can not be tacked together to take the case out of the statute. Thus, where an heiress left the state after the will was probated, before coming of age, and remained out- side till after coming of age, it was held that the time of limi- tations was to be counted from the time of coming of age, and that the period of absence from the state could not be added to tlie time of minority to postpone the operation of the stat- ute.113 los Walters v. Ratliff, 5 Bush. no Powell v. Koehler, 52 0. S. (Ky.) 575 Taylor v. Tibbatts, 13 103. B. Mon. (Ky.) 177. m Wheeler v. Wheeler, 134 111. 109 Corly V. Wayne Co., Prob. 522 ; Evansville, etc. Co. v. Winsor, Judge, 96 Mich. 11; Beatty's Will 148 Ind. 682; Bent v. Thompson, 193 Pa. St. 304, 45 Atl. 1057 5 N. M. 408; 23 Pac. (1890), 234. Contra Hotchkiss v. Ladd, 62 Vt. 112 Garrison v. Hill, 81 Md. 551. 209. 113 Powell V. Koehler, 52 0. S. 103. 374 LAW OF WILLS. But these statutes do not apply where contest is not sought, but simply the correction of an error in the record- ing of a will. Errors in recording the order of the court may be corrected after the time for contest has elapsed.^ ^^ §322. Inconsistent wills. Where two separate wills are probated together, and as one instrument, and no appeal is taken, such action precludes any claim that the second will operates as a revocation of the first.115 When one will is probated, another will inconsistent with the first can not be probated at a later time as a codicil, since this in effect operates as a revocation of the earlier will. The earlier will should be contested. Hence an application to substitute a will discovered after an earlier will had been ad- mited to probate necessarily involves a contest of the will pro- bated, and must be made within the time limited for contest. It follows that where a will is discovered so long after the ear- lier will was admitted to probate that the limit fixed by stat- ute for contest has elapsed, such will can not be probated.^ ^^ In some earlier cases this principle has been ignored without discussion, and inconsistent wills have been admitted to pro- bate after the time for contesting the first will has elapsed,^ ^'^ or a later inconsistent codicil has been probated without any proceeding in the nature of a contest.^ ^^ It has been held recently that the probate court has power to admit a will to probate when offered, and if such will effects a revocation of a will previously admitted to probate, the court has power to reverse or revoke the former decree as far as may be necessary to give effect to the later will.^^^ 11* Hamilton-Brown Shoe Co. v. ht Waters v. Stickney 12 Alien Whitaker, 4 Tex. Civ. App. 380. (Mass.) 1; Vance v. Upson, 64 115 Dicke V. Wagner, 95 Wis. 260; Tex. 266. 70 N. W. 159. 118 Bracken's Estate, 138 Pa. St. 116 Watson V. Turner, 89 Ala. 104. 220; Bartlett v. Manor, 146 Ind. na Cousens v. Advent Church of 621. Biddeford, 93 Me. 292. LAW OF AVIL.LS. 375 §323. Nature of contest. Contest is, under most modem systems of jurisprudence, en- tirely a statutory proceeding. It is not an action at law or a suit in equity,^ ^° and is not a civil action, though it is a civil case.^2^ In some states it is an action at law by statute.^22 Under some of the older systems contest was treated as a suit in equity, independent of statute; and this view of the pro- ceeding is still entertained in some states in spite of statutory changes.^2^ Contest is in the nature of an appeal ;^2* but it is still an original action, and not an appeal.^ ^^ As contest is usually either an appeal or an action in the nature of an ap- peal, there must be an order admitting the will to probate in order to authorize a contest.^ ^^ The court may, in its discretion, consolidate proceedings in- stituted by different persons for the purpose of having differ- ent instruments each probated as the last will and testament of decedent.^ 2'^ Separate contests of a will and a codicil, or of two wills, each claimed to be the last will of testator, may be consolidated by the court and heard together.^^s In contest, the question whether the will was admitted to probate properly or improperly does not exist. Contest does not review the action of the court below on error.^^^ The question of the validity of the will as offered for probate is raised for adjudication on its merits in a contest, and the court i2ociough V. Clough, 10 Colo. 124 Haynes v. Haynes, 33 0. S. App. 433; Grady v. Hughes, 64 598. Mich. 540 ; Corly v. Wayne Co., 125 Bradford v. Andrews, 20 O. S. Prob. Judge, 96 Mich. 11; 55 N. 208. W. 386. ^2" Olmstead v. Webb, 5 App. 121 Carpenter v. Bailey, 127 D. C. 38; Hoope's Estate, 152 Pa. Cal. 582: 53 Pac. 842. St. 105. 122 Garland v. Smith, 127 Mo. Apparently contra, Richardson v. 567; 28 S. W. 191; 29 S. W. 830; Green, 61 Fed. 423. Lilly V. Tobbein, 103 Mo. 477 ; Ap- 127 Roulett v. Mulherm, 100 Ga. pleby V. Brock, 70 Mo. 314. 591. 123 Shaw V. Camp, 163 111. 144, 128 Roulett v. Mulherin, 100 Ga. affirming 61 111. App. 68; Hudnall 591; Wilson's Estate, 117 Cal. 280; V. Ham, 172 111. 76; Claussenius v. 117 Cal. 262; 49 Pac. 172. Claussenius, 179 111. 545; Keister v. . 120 Watson's Will, 131 N. Y. 587: Keister, 178 111. 103. Clark v. Ellis, 9 Oreg. 128; Con- verse V. Starr, 23 0. S. 491. 376 LAW OF WILLS. is not restricted in its inqiiirj by the action of the court be- low.-^ ^^ The court may, therefore, in a contest proceeding, ad- mit on cross-petition a part of the will which was rejected by the trial court.^^^ Further, in case of erroneous recording of the will in the probate court, the question is whether the instru- ment offered at the trial on contest is the last will and testament of testator.^ ^^ On appeal in the nature of a contest the court may bring in new parties.-*^^ Where contest takes the form of filing a caveat, such act puts a stop to all further proceedings in the probate in common form until the caveat is disposed q£ 134 -j-jjg method provided by statute for reviewing an order admitting a will to probate is usually e:s:clusive. Thus, if ap- peal on contest is provided, error will not lie.-^^^ In order to promote justice, a suit brought to set aside a will and the probate thereof, on the ground that such will is re- voked, is treated as a statutory proceeding to contest such will.^^*^ But contest can not be made the means of trying the validity of certain devises in a will.^^'' It is often required that, uj)on instituting proceedings in contest, the court of pro- bate powers shall, after due notice, transmit the will and a transcript of the probate proceedings to the court before which contest is pending. This requirement is not jurisdictional, and the failure of the court to transmit such papers is not ground for dismissing the contest.-' ^^ isoMcIntire v. Mclntire, 162 U. Corse, 80 Md. 20; 30 Atl. 569; S. 383; Mack's Appeal, 71 Conn. Fischer's Case, 49 N. J. Eq. 517. 122; 41 Atl. 242; Shaw v. Camp, iss Mosier v. Harmon, 29 O. S. 163 111. 144, affirming 01 111. App. 220. 68 ; Preston v. Fidelity, etc., Co. i36 Evansville, etc., Company v. — Ky. — ; 22 S. W. 318; Sander- Winsor, 148 Ind. 682. son V. Sanderson, 52 N. J. Eq. i37 Cox v. Cox, 101 Mo. 168; 13 243; Smith v. Smith, 48 N. J. Eq. S. W. 1055: Lilly v. Tobbein, 103 566; Commonwealth V. Thomas, 163 Mo. 477; 13 S. W. 1060; Mears Pa. St. 446; Berg's Estate, 173 v. Mears, 15 0. S. 90; Anderson Pa. St. 647. V. Anderson, 112 N. Y. 104; 2 L. R. 131 Shaw V. Camp, 163 111. 144. A. 175; Prather v. McClelland, 76 132 Haynes v. Haynes, 33 O. S. Tex. 574. 598. 138 Johnson v. Cochrane, 91 Hun, 133 Miller's Will, 166 Pa. St. 97. 165; aflf. 159 N. Y. 555; 54 N. E. 134 King's Administrator v. Rose, 1092. — Ky. — ; 38 S. W. 844 ; Keene v. 377 LAW Ol^ WILLS. §324. Necessity of parties. — Notice. As to the necessity of parties in a will contest the states may be divided into two classes. In states of one class all parties interested must be made parties to the proceeding, and served either actually or constructively.^ ^^ If the attention of the trial court is called to this omission it may dismiss the appeal at once for defect of parties, without prejudice to a new appeal ''' In courts of this class the omission of a necessary party, as a legatee, is reversible error,^- and the objection of a defect of parties may be made for the first time in the upper ^^^,^t''^ But where a beneficiary under an earlier will con^ tested the probate of a later will, and was plaintiff because of his interest under such earlier will, it was held unnecessary to make him a defendant, too, because of his interest under the later will ''^ And, where an unborn child of testator was in existence at testator's death, the court might nevertheless pro- ceed as in ordinary cases of probate and contest.^ :Notice is also required where opposition to probate is filed under the local statute, as a means of demanding probate m^ solemn form^^^ And where this notice was in fact served m time, and proof of service was filed before the actual hearing of the contest, proponent could not take advantage of the fact that the proof of service was not filed before the time originally fixed for the hearing.i^^ In states of the other class contest is treated in its general theory more like a strict proceeding m and it is not necessary to make those in interest parties rem; 130 Scott's Estate, 124 Cal. 671; -^ Wells v. Wells, 144 MoJOS; Moore v. Gubbins 54 111. App. 163; Reformed, etc., Church v. Nelson, Storey's Will, 20 111. App. 183; 35 0. S. 638. 120 111 244; McDonald v. McDon- -3 McDonald v. McDonald, 142 aid, 142 Ind. 55; Wells v. Wells, Ind. 55. 144 Mo. 198; Holt v. Lamb, 17 O. i*^ Hamilton's Estate, 120 Cal. S 374; Reformed, etc., Church v. 421. xt' , Q^ n s fi-^R 145 Protestant Orphan Asylum v. Nelson, 35 O. b. b.5». j. nft Pnl 44'^- Rtew- 140 Miller's Estate, 159 Pa. St. Superior Court, 116 Cal 443^ btew art V. Hall, 100 Cal. 246; Bacigal- iIiMcMaken v. McMaken, 18 Ala. upo v. Superior Court, 108 Cal. 92; 576; Moore v. Gubbins, 54 111. App. 40 Pac 1055 163 ; Reformed, etc.. Church v. Nel- "« Stewart v. Hall, 100 Cal. .4b. son, 35 O. S. 638; Holt v. Lamb, 17 O. S. 375. 378 LAW OF WILLS. to the appeal or contest. It is sufficient to give such, notice as is required by the local statute.^ ^^ §325. Who may contest. The statutes generally provide that 'any person interested' adversely to the will or 'any person aggrieved' by its admis- sion to probate, may contest such will..^'** Under these stat- utes a person who would take more if the will were denied pro- bate than if it were admitted to probate is a person interested adversely to the will.^'*^ Thus a legatee under a prior will may contest a later will which revokes the earlier one,^^° even before the earlier will has been formally probated.^ ^^ So a widow who would take as heir under the statute, in addition to her dower rights, may contest a will by which she is given less than she would receive if her husband had died intestate.^^^ In addition to this class of persons, it is also held that such persons as have the first right to administer the estate may contest a will whereby an executor is appointed, even though the will does not affect their share in testator's estate adversely to their interests.^ ^^ But one whose share in testator's estate 147 Tompkins v. Tompkins, 1 Sto- 536; Shepard's Esta.te, 170 Pa. St. ry, C. C. 547; Hunt v. Acre, 28 323; Kenyon v. Saunders, 18 R. I. Ala. 580; Thomas v. Wood, 61 Ind. 590; 30 Atl. 470. 132; Parker v. Parker, 11 Cush. 1*9 Kostelecky v. Scherhart, 99 (Mass.) 519; Wells v. Child, 12 To. 120; Murry v. Hennessy, 48 Neb- Allen (Mass.) 330; Crippen v. Dex- 008; Snow v. Hamilton, 90 Hun, ter, 13 Gray (Mass., 330; Bonne- 157; Cochran v. Young, 104 Pa. St. mort V. Gill, 167 Mass. 338; Brig- 333; Kenyon v. Saunders, 18 R. I. ham V. Fayerweather, 140 Mass. 590. 411; Miller's Estate, 166 Pa. St. iso McCutehen v. Loggins, 109 97; Linch v. Linch, 1 Lea (Tenn.) Ala. 457; McDonald v. McDonald, 526 ; WoodruflF V. Taylor, 20 Vt. 65 ; 142 Ind. 55; Kostelecky v. Scher- Wills V. Spraggins, 3 Gratt. (Va.) hart, 99 lo. 120; Dower v. Church, 555; Sehultz v. Sehultz, 10 Gratt. 21 W. Va. 23. (Va.) 358. 151 Kostelecky v. Scherhart, 99 148 Lockard v. Stephenson, 120 To. 120. Ala. 641; 24 So. 996; Hickman's i52 Moyses v. Neilson, t) Ohio Estate, 101 Cal. 609; 36 Pac. 118; S. & C. P. Dec. (Ohio Dec), 623. .Tele V. Lemberger, 163 111. 338; ir.3 Watson v. Alderson, 146 Mo. Kostelecky V. Scherhart, 99 lo. 120: 333. "The next of kin were en- Biles V. Dean, — Miss. — ; 14 So. abled to contest the validity of the ■LAW OF WILLS. 379 is affected adversely by the will, may contest -^f^^^"^:^^ he is debarred by law from administering testators estate. Thus in Rhode Island it is held that a convict, though not al- lowed to administer his wife's estate, may contest 1-^ w^^^ ^- eluding him from the share which he would have had m her estate had she died intestate.^^^ One who is not benefited by having the will set aside either by taking a share of decedent's estate, or by obtaining the hrst Xht to administer, can not contest the will.-^ Thus one who would have taken had testator died intestate, but who took xnore under the will than he would have taken had testator died intestate, can not contest such will.-^ Nor can a non-resi- dent alien, who is by the law of the state incapable of inheri^ ing real estate, contest a will devising real estate. A widow of decedent who, by an ante-nuptial agreement, has determined her property rights so that they are in no way af- fected by the will, can not contest,-^ nor can a creditor of de- cedent contest the will.^^^ And one in possession of rea ty, not an heir of decedent, can not resist the probate of a will by pur- chasers of such realty from devisees under such will though they can not make out title to such realty until the will is pro- will 'as of common right.' Of com- mon right, because to them the ad- ministration of the goods of the de- ceased 'ought to be committed if he died intestate.' This common right is secured to them by our statute, and is independent of the pecuniary results to them of the contest." Watson v. Alderson, 146 Mo. 333; Fallon's Will, 107 lo. 120, citing Sanborn's Estate, 98 Cal. 103; Hickman's Estate, 101 Cal. 609; Maurer v. Naill, 5 Md. 324; Middleditch v. Williams, 47 N. J. Eq. 58.5 ; Franke v. Shipley, 22 Or. 104. i5*Kenyon v. Saunders, 18 E. I. 590. i55Lockhart v. Stephenson, 120 Ala. 641 ; 24 So. 996 ; McCutchen v. Loggins, 109 Ala. 457; Sanborn's Estate, 98 Cal. 103; 32 Pac. 865; Jele V. Lemberger, 163 111. 338 ; Wil- coxon V. Wilcoxon, 165 111. 454; Biggerstaflf v. Biggerstaff, 95 Ky. 154; Biles v. Dean, — Miss. — ; 14 So. 536; Middleditch v. Williams 47 N. J. Eq. 585; Lewis v. Cook, 150 N. Y. 163; Franke v. Shipley, 22 Oreg. 104; Shepard's Estate, 170 Pa. St. 323. 156 Biles V. Dean, — Miss. — ; 14 So. 536. 157 Jele V. Lemberger, 163 111. 338. 158 Biggerstaflf v. Biggerstaff, 95 Ky. 154. 159 Montgomery v. Foster, 91 Ala. 613. 380 LAW OF "WILLS. bated and an ejectment suit is pending to which such possessor is defendant.i*5° In some states a public administrator is appointed by law to administer the estates of decedents under certain circum- stances specified in the statutes — generally in case decedent dies intestate, and has within the state no relative competent to act as administrator. Such administrator can not, by reason of his interest in the fees, contest decedent's will,^^^ nor can an executor, in his official capacity, contest the probate of a codi- cil which revokes his appointment.-^^" The creditor of an heir of decedent can not contest decedent's will disinheriting such heir by reason of creditor's hopes or expectations of being paid out of the heir's share of decedent's estate.-' ^^ But where, be- fore probate of the will, a judgment creditor of one heir levies upon such interest in testator's real estate as the heir would have inherited had testator died intestate, and upon ju- dicial sale of the heir's interest in such property such judg- ment creditor buys it in, it is held that the judgment creditor has such interest that he may contest the will.-*^"* One who purchases land from an heir of testator after the probate of a will whereby the heir is disinherited, can not con- test such will, even though the heir had a contingent remain- der in the land after the death of testatrix, subject to be de- feated by disposition by will.^^^ If the proponents of the will deny the fact of contestant's interest in the estate of testator, he must prove such interest as entitles him to contest the will, in order to establish his standing in court.^*^^ It is said that 160 Johnson v. Bard (Ky.) iC4 Smith v. Bradstreet, 16 Pick. (1900), 54 S. W. 721. (Mass.) 264; In re Lange\an, 45 161 Sanlx)rn'8 Estate, 98 Cal. 103 ; Minn. 429, Watson v. Alderson, 140 32 Pac. 865; Hickman's Estate, 101 Mo. 333. Cal. 609; 36 Pac. 118. iss McDonald v. White, 130 111. 162 Stewart's Estate, 107 lo. 117, 493. citing In re Langevin, 45 Minn. ise Solari v. Barras, 45 La. Ann. 429; Meyer v. Fogg, 7 Fla. 292; 1128: Pattee v. Stetson, 170 Mass. 68 Am. Dec. 441; Reid v. Vander- 93 (where it was denied that con- heyden, 5 Cow. 719. testant was wife of testator) ; Rog- i63Lockhard v. Stephenson, 120 er's Estate, 154 Pa. St. 217 (where' Ala. 641 ; 24 So. 996 ; Shepard's it was denied that contestant was Estate, 170 Pa. St. 323; Cochran son of testator). V. Young, 104 Pa. St. 333. oo-j LAW OF WILLS. this issue should be tried first.^«^ When contestants claim no more ^or their interest in testator's estate than that thev thmk that thev were legally adopted by testator, and believe that they can prove it, they have no standing in court to contest the wilL^^« It is held that the right to contest does not survive where a party who had a right to contest dies before suit is brought. In this case the party having the right to contest was non compos mentis when testator died, and he died after the time for con- test had elapsed although the statute made an exception m his favor, it was held that neither his heirs nor his administra- tor could contest.1^^ But where contestant died after suit was brought, the court assumed, rather than expressly decided that the action would survive, discussing at length the necessity of giving the heirs notice, and deciding that such notice need not be given.^^'^ Local practice differs as to the right of one who was not formallv made a partv to the probate in common form to con- test thJ will by calling for probate in solemn form. Where the contest is had in a new action there is no restriction upon parties interested adversely to the will, who were not parties to the probate in common form; but any party interested may contest, whether he took part in the proceedings of original probate or not. Where the contest assumes the form of an ap- peal some courts hold that any party interested may appeal, whether he took part in the probate or not,^^i ^^^nle other courts hold that they must become parties to the proceedmg below, in order to have a right to appeal from the order ad- mitting the will to probate.1^2 parties not notified of the pendency of probate proceedings may, "by petition to the pro- 167 Meyer v. Henderson, 88 Md. i7i Ouachita Baptist College v. 585; Roger's Estate, 154 Pa. St. Scott, 64 Ark. 349; Meyer v. Hen- 217 derson, 88 Md. 585. lesRenton's Estate, 10 Wash. i72 Blakely v. Blakely, .33 Ala. 533 611; Leslie v. Sims, 39 Ala. 161: i69Storrs V. St. Luke's Hospital, Reese v. Nolen, 99 Ala. 203; 13 So. 180 HI. 368, affirming 75 HI. App. 677; Dugan v. Northcutt, 7 App. 152. ^- C- 351. iToBonnemort v. Gill, 167 Mass. 338. 382 l^W OF WILLS. bate court, propound their interest, and after giving notice to the party having an interest, have themselves made parties to such a decree, so as to prosecute appeal therefrom." ^"^^ §326. Estoppel. Parties who would ordinarily be included under the gene- ral class of those having a right to contest a will may, how- ever, have so acted as to estop themselves from contesting its validity. The general and well-recognized principles of the law of estoppel are applicable, and need no discussion further than an illustration of their application to the facts which arise on contest. Where a testator has made a contract with his children or other heirs and. next of kin, by which they agree upon valuable consideration not to contest his will for any reason, circuity of action is avoided by treating such a contract as estopping them from contesting testator's will.^^^ Such a contract is held to be valid and enforceable, and not contrary to public policy, and may be pleaded as defense by the executor in a suit to contest the will.^'^^ Such a contract binds only the parties thereto. It is ac- cordingly reversible error to exclude evidence tending to show that one of the plaintiffs did not enter into the agreement.-' ^^ So upon the familiar principle that no one can be pennitted to occupy antagonistic and inconsistent positions upon an issue in litigation, no one who is a beneficiary under the will and with full knowledge of the facts, receives and retains his legacy, can contest the will.^'^^ Where the facts material to the contest are not known to 173 Reese v. Nolan, 99 Ala. 203; Gore v. Howard, 94 Tenn. 577. 13 So. 677; Lyons v. Hammer, 84 Ala. I's Garcelon's Estate, 104 Cal. 570. 197; Kumpe v. Coons, 63 Ala. 448; i'« Gore v. Howard, 94 Tenn. 577. Hall V. Hall, 47 Ala. 290 ; Clemens v. i " Bartlett v. Manor, 146 Ind. Patterson, 38 Ala. 721. 621; Madison v. Larmon, 170 1'* Garcelon's Estate, 104 Cal. 570; 111. 65; Andrews v. Andrews, LAW OF WILLS. ^8? contestant, or, are fraudulently concealed from him, he is not estopped to contest by his conduct in accepting the legacy.^ ^^ It is held, in some jurisdictions, that a beneficiary who re- turns his legacy to the executor before bringing suit to contest the will, is not estopped from contesting.^ ^^ But where bene- ficiary was induced to accept the legacy by fraudulent conceal- ment of material facts, it was held that beneficiary was not obliged to return the legacy as a condition precedent to bring- ing suit.^*^ Where the share of the beneficiary under the will is less than it would be if it were set aside, it is held in some jurisdic- tions that the beneficiary may accept and retain his legacy under the will without being thereby estopped to contest the wilL^si An executor, however, is not estopped to contest the will, or to claim property disposed of by it as his own.^®* §827. Who may defend. The executor, under the practice now prevalent in most states, should be a party to the contest, and may defend the will.^^^ It is proper even after contest has begun to appoint an administrator with the will annexed, and make him a party to the contest if the executor does not qualify.^ *^ And it is held that an executor, named by the first will, may contest pro- bate of a second will, whereby the first is revoked, as part of his duty of defending the will.^^^ But where the will affects 110 111. 223; Gorham v. Dodge, 122 iso White v. Mayhall, — Ky. — ; 111. 528; White v. Mayhall, — Ky. 25 S. W. 881. — ; 25 S. W. 881; Miller's Estate, isi Bates v. Smith, 3 Cincinnati 159 Pa. St. 562; Miller's Estate, Law Bull. 344 (Ohio). 166 Pa. St. 97; Pryor v. Pendle- 1 82 Tyler v. Wheeler, 160 Mass. ton, 92 Tex. 384. 206. Apparenthj contra, Fifield v. Van iss Whetton's Will, 98 Cal. 203 ; Wyck, 94 Va. 557. Campbell v. Campbell, 130 111. 466; 178 White V. Mayhall, — Ky. — ; Hesterberg v. Clark, 166 111. 241; 25 S. W. 881 (where the fact of the Bardell v. Brady, 172 111. 420. incapacity of testator was fraudu- is* Crocker v. Balch, — Tenn. lently concealed). ^900) ; 55 S. W. 307. 179 Miller's Estate, 159 Pa. St. ise Connelly v. Sullivan, 50 111. 562; Miller's Estate, 166 Pa. St.. Anp. Q27. 97. 384 LAW OF WILLS. the title to real estate onlj, and no interest in or power con- cerning the same is devised to the executor, he is held not to be a necessary party to a contest.^ ^^ The legatees are necessary parties/ ^''^ and the husband of a legatee is a proper and necessary party. -^^^ One who has acquired the legal title to testator's real estate from a devisee under a probated will, is a proper party defend- ant to a suit to contest such will.^*^^ §328. Pleadings. In contest proceeding some pleading on the part of contestant at least is required. The form of the petition filed by contest- ant depends largely upon local procedure and upon the issue in probate and contest.^ ^'^ 186 Fox V. Fee, 49 N. Y. Supp. 292, citing Miller v. R. R. 132 U. S. 662, distinguishing McArthur v. Scott, 113 U. S. 340. 187 Moore v. Gubbins, 54 111. App. 163. 188 Burnett v. Milnes, 148 Ind. 230 (A suit to vacate a judgment refusing to admit a will to pro- bate. ) 189 Roberts v. Abbott, 127 Ind. 83. 190 See Sec. 329. Where the issue is fixed by stat- ute, and is the common law issue, 'devisavit vel non' ( ) is the writing, purporting to be the last will and testament of A. B. de- ceased, the last will and testament of A. B. deceased ( ), an ap- proved form of petition is as fol- lows: In the Court of , State of County, E. F. and G. H., PlaintiflFs, V. K. L., as executor of the last will and testament of A. B., de- ceased, M. N. and O. P., Defendants. Petition. A. B. died on the day of , A. D. 19—. Plaintiffs are his children and his sole heirs at law. On the day of A. D. 19 — , a certain paper writing pur- porting to be the last will and testament of the said A. B. de- ceased, which said writing was dated the day of • A. D. 19 — , was presented to the court of said County and was admitted to probate by the said court of said County on the day of A. D. 19 — , and is recorded in Volume page of the Record of Wills in said court. Letters testamentary thereon were thereupon issued by said court to the defendant, K. L. as sole ex- ecutor thereof, who thereon gave bond and qualified. By the terms of said paper %vTit- ing all the defendants herein are named as the several legatees and devisees of said A. B. deceased. Said paper writing is not the last will and testament of said A. B. deceased. LAW OF WILLS. 385 Under some codes, the separate grounds of attack, such as lack of mental capacity, undue influence, duress, fraud and the like, need not be separately paragraphed.^"^ But the petition must make out a piima facie case of the invalidity of the will.^"^ Thus, a contest on the ground of mistake, can not be maintained when it appears from the whole caveat that the mistake was not such as was contemplated by statute.-^ "^ §329. Issue in prol)ate and contest. The different jurisdictions may be divided into two classes according to the rule as to the issue in probate and contest. In the first class the issue is fixed by statute and is practically the old common law issue devisavlt vel non — is it the last will and testament of testator or not. In jurisdictions of this class since the issue is fixed by statute, and can not be varied by the plead- ings, the form which the issue assumes in the pleadings is immaterial.-^"'* Wherefore plaintiffs pray • that an issue may be made up whether said paper writing is the last will and testament of said A. B. de- ceased, or not ; that upon the trial of said issue, said paper writing may be declared not to be the last will and testament of said A. B. deceased, and for such other and further relief as plaintiffs may be entitled to in law or equity by rea- son of the premises. Attorney for PlaintiflTs. State of County, ss. E. F. being first duly sworn says that he is one of the plaintiffs herein, and that the allegations of the foregoing petition are true as he verily believes. Sworn to before me by the afore- said E. F. and by him subscribed in my presence this day of A. D. 19—. [Official Capacity.] In Dew V. Reid, 52 0. S. 519, this form of petition was used with the addition of certain grounds of contest, which were treated by the court as surplusage. 19 i McDonald v. McDonald, 142 Ind. 55. 192 Lyons v. Campbell, 88 Ala. 462. io3Meeks v. Lofley, 99 Ga. 170. 194 Eraser v. Jennison, 106 U. S. 191; Sinnett v. Bowman, 151 111. 146 ; 37 N. E. 885 ; In re Hathaway, 46 Mich. 326; Pratt v. Hargreaves, 75 Miss. 8918; 23 So. 519; Carl v. 386 LAW OF WII.LS. Hence, the petition may in such states be amended after the limit for contesting the probate has expired by adding new grounds of contest, since imder the statutory issue every ground of attack upon the validity of the will may be employed.^^^ Nor need the petition allege such specific grounds as undue in- fluence and insanity in order to introduce evidence upon such points.^*^^ Thus it is sufficient to assign as the only groimd of appeal that "said instrument was not the last will and tes- tament of said deceased." ^^^ And where the petition in con- test alleges only want of sound mind and memory, and imdue influence as the grounds of contest, contestant may at the trial introduce evidence tending to show that the will offered was not executed in accordance with the law.^^® Where such issue is prescribed by statute, no advantage can be taken of an omission to file an answer,^ ^^ and it is error to render judgment upon demurrer to the answer, without the in- tervention of a jury.2^" In jurisdictions of the other class either the statutes or the rules of court require that the grounds of contest shall be specifically stated, and that no evidence shall Gabel, 120 Mo. 28.3; 25 S. W. 214; In states of this class by statuta Gordon v. Burris, 141 Mo. 602; the issue may be made up by a jour. Dew V. Reid, 52 O. S. 519; Win- nal entry. disch, etc., Co. v. Opp, 17 Oliio In the Court of , C. C. 4G5; Liscomb v. Eldredge, 20 County, R. I. 335 ; 38 Atl. 1052. E. F. and G. H., 195 Sinnett v. Bownan, 151 111. Plaintiffs, 146; 37 N. E. 885. v. 196 Pratt V. Hargreaves, 75 Miss. K. L., as executor of the last will 808; 23 So. 519; Carl v. Gabel, and testament of A. B., de- 120 Mo. 283; 25 S. W. 214. ceased, M. N. and O. P., 197 Lane v. Hill, 68 N. H. 275 and Defendants. 398. Entry. 198 Dew V. Reid, 52 0. S. 519, It is hereby ordered by the court citing and following Green v. Green, that an issue be and the same is 5 0. 279; Brown v. Griffiths, 11 hereby made according to law, 0. S. 329 ; Walker v. Walker, 1 1 whether the paper writing produced, O. S. 157; Haynes v. Haynes, 33 purporting to be the last will and O. S. 598. testament of A. B. deceased, is the 199 Crenshaw v. Johnson, 120 N. last will and testament of said A. Car. 270; Green v. Green, 5 O. 279. B. deceased, and that a jury be im- 200 Walker v. Walker, 14 O. S. paneled to try said issues. 157: Holt V. Lamb; 17 O. S. 374. LAW OF WIIXS. 387 be introduced upon issues not thus specified.^"! But where this is required it is held sufficient to state the ultimate facts, with- out pleading the evidence by which such ultimate facts are to be established. Thus it is sufficient to allege that the will "was not duly executed."^*^^ An issue as to whether the will were caused bv the "undue importunities, suggestions and persuasions of another person or other persons" was sustained as not too general,-"^ and con- testants mav allege as many gTounds as they expect to attempt to establish by evidence. Thus, it is error to compel them to elect between an allegation of forgery and one of undue in- fluence.^^'^ The issue should not, however, be duplicated. Thus, where one issue was made up as to the statutory definition of testa- mentary capacity — if testator had a sound and disposing mind and was capable of making a valid deed or contract, it was held proper to refuse to permit an additional issue as to whether testator had 'sufficient mental capacity to know his property,' etc., under the common law definition of testamen- tary capacity."*^^ Where an issue had been awarded in the language of the statute as to whether testator was of "sound and disposing mind and capable of executing a valid deed or contract," it was proper to refuse another issue on insane delusion.20« 201 Barksdale v. Davis, 114 Ala. 144 Ind. 189; National Safe De- 623; Thompson V. Rainier, 117 Ala. posit, etc., Company v. Sweeney, 3 318; Redfiold's Estate, 116 Cal. 637 App. D. C. 401. (construction of petition); In re 203 National Safe Deposit, etc., Kile, 72 Cal. 131; Learned's Estate, Company v. Sweeney, 3 App. D. C. 70 Cal. 141; Dalrymple's Estate, 401.. 67 Cal. 444; Livingston's Appeal, 204 McDonald v. McDonald, 142 63 Conn. 68 ; 26 Atl. 470 ; McDon- Ind. 55. aid V. McDonald, 142 Ind. 55; Wen- 205 National Safe Deposit, etc., ning V. Teeple, 144 Ind. 189; Hud- Co. v. Sweeney, 3 App. D. C 401;' son V. Hughan, 56 Kan. 152; Meyer Connelly v. Beal, 77 Md. 116; Pegg V. Henderson, 88 Md. 585; 42 Atl. v. Warford, 4 Md. 385; Warford v. 241. Van Sickle, 4 Md. 397. 202 Barksdale v. Davis, 114 Ala. 206 National Safe Deposit, etc. 623; Thompson v. Rainier, 117 Ala. Co. v. Sweenev, 3 App. D. C. 401 318; 23 So. 782: Wenningv. Teeple. 388 LAW OF WILLS. The issue in a contest ought not to be obscured by intro- ducing questions as to the title of certain realty ,^*^'^ or as to the question of the satisfaction of a legacy,^"^ or as to the legitimacy of an alleged child.^*^^ It was held error to frame the issue "whether the execution of said paper writing was procured by undue influence ex- eijcised and practiced upon said J. V. and constraining his will therein," as the court thereby attempted to define the degree of undue influence which would invalidate the will.^^^ §330. Procedure at trial. — Open and close. The order of introducing evidence upoii the trial of a will contest difters greatly in the different states, and it is usually controlled by statute. In most states the proponent h-a& the right to open and close since he has the burden of proof as to the validity of the will, under the theory entertained in most jurisdictions.^^ ^ This is also the rule where the question is as to the domicile of dece- dent and the location of his personal property, in order to de- termine the jurisdiction of the court, and no question is made as to the validity of the will.^^" Concurrent with this right is the right of the proponent to open and close the argument.^^^ Where the object of the suit is on the part of proponents to establish one will, and on the part of contestants to have this will declared invalid and an earlier one admitted to probate, 207 Vidal's Succession, 44 La. Ann. v. Wilton, 13 111. 15; Sheehan v. 41. Kearney (Miss.), 21 So. 41; 35 L. 208 Owens v. Sinklear, 110 Mo. R. A. 102; Patten v. Cilley, 67 N. 54. H. 520; Green v. Green, 5 Ohio, 278 ; 209Warter v, Warter, L. R. 15 Brown v. Griffiths, 11 O. S. 329; P. D. 35. Banning v. Banning, 12 O. S. 437; 210 Brewer v. Barrett, 58 Md. 587 ; Gable v. Ranch, 50 S. Car. 95 ; In re Sumwalt V. Sumwalt, 52 Md. 338. Bock, 37 S. Car. 348. 211 Overby v. Gordon, 13 App. D. 212 Qverby v. Gordon, 13 App. C. 392; Bardell v. Brady, 172 111. D. C. 392. 420; Bevelot v. Lestrade, 153 111. 213 Banning v. Banning, 12 O. S. 625; Moyer v. Swygart, 125 111. 437; Raudebaugh v. Shelley, 6 O. 262 ; Tate v. Tate, 89 111. 42 ; Rigg S. 307. LAW OF WILLS. 389 the court has discretion to direct which party shall open and close.^^^ The rule is the same where the contestant assails the validity of the earlier will on the ground that it has been revoked by a later will.^^^ While in most states the proponent has the right to open and close, the states may be divided into two classes upon the ques- tion of the extent to which contestant must go into his case in the first instance. In some states, by special statute, proponents open, make out a prmia facie case by introducing in evidence the will and a certified transcript of the evidence taken in the probate court, and the order of probate, and rest. Contestants then offer their evidence, and in rebuttal proponents may offer further evi- dence as to the execution of the will, the capacity of testator and the like.^^^ In other states proponent must offer all his evidence in chief upon opening his case. After he rests, contestants offer their evidence. Proponent is then limited strictly to rebutting evi- dence, and may be refused to offer further evidence as to ex- ecution, capacity of testator and the like.^'^'^ Even in these states the proponent may rest on the prima facie case made out by the will, the order of probate and the evidence of the sub- scribing witnesses in the form allowed by local procedure; ^^* and if the court in its discretion sees fit to allow proponent to introduce evidence of testator's capacity and the like after con- testants have introduced their evidence, it will not be rever- sible error, unless contestants are prevented from having a fair trial by exceptional circumstances.^^ ^ After the jury has answered part of the questions of fact, which dispose of part of the issues, and before the evidence on 214 Bardell V. Brady, 172 in. 420. 218 Slingloflf v, Brimer, 174 111. 2i5McCutchen v. Logging, 109 561 j Hesterberg v. Clark, 106 111. Ala. 457; 19 So. 810. 241. 2i6Sheehan v. Kearney, — Miss. 219 Slingloff v. Brimer, 174 111. — ; 21 So. 41 ; 35 L. R. A. 102; Run- 561 ; Craig v. Southard, 148 111. 37; yan v. Price, 15 O. S. 1 ; Mears v. Titus v. Gage, 70 Vt. 13: 39 Atl. Mears, 15 O. S. 90. 246. 217 Craig V. Southard, 1 IS TU. 37. 390 LAW OF WILLS. the remaiuing issues lias been submitted, contestant may dis- miss the action without prejudice to a new action.^^" The right to withdraw objections to the probate of a will before a hearing thereon, is clearly recognized in some states.^^^ But it is held in other jurisdictions that, as there are no parties to probate proceedings, it is impossi- ble to withdraw or dismiss proceedings.^"^ The proponent has a right to be present at the hearing and can not be excluded because he is also a witness.^^^ §331. Right to a jury in contest. Since the right to make a will is a creature of statute law,^^"^ it is regularly held that in a contest of a will, the constitutional right to a jury, in such cases as were triable to a jury at the course of the common law, does not exist.^^^ In many states the parties have no right by statute law to have a jury trial in a contest of a will,^^'^ In some states the court having probate powers may direct an issue of devisavit vel non to the law courts for a jury trial. This may be dis- cretionary with the court."^"^ In other jurisdictions it is man- datory.--* In others the court directs the issue only after a preliminary hearing, in which the evidence adduced against the will is such that the court would not feel obliged to disturb a verdict against the proponents of the will. If such evidence is not adduced the court refuses the issue.^-^ 220 Osborne v. Davies, 60 Kan. 225 Cummins v. Cummins, 1 Marv. 695. (Del.) ('95), 423; 31 Atl. 816. 22iYovmg V. Wark, 76 Miss. 829. 226 Cummins v. Cummins, 1 Marv. Where this is done, the legal effect (Del.), 31 Atl. 816. as to further procedure is as if no 227 Cummins v. Cummins, 1 Marv. objections had ever been filed. Lane (Del.) 423; 31 Atl. 816. V. Hill, 68 K H. 275, 398. But it 22s Dugan v. Northcutt, 7 App. is too late after submission to a D. C. 351 ; Lane v. Hill, 68 N. H. jury. ■ 275. 398. 222 Collins V. Collins, 125 N. C. 229 Lillibridge's Estate, 133 Pa. 98. St. 211; Stewart's Will, 149 Pa. St. 223Heaton v. Dennis (Tenn.), 52 111; Fow's Estate, 147 Pa. St. 264; S. W. 175. Loeser's Estate, 167 Pa. St. 498; 224 See Sec. 323. Pensyl's Estate, 157 Pa. St. 465; 391 LAW OF WILLS. Thus where the subscribing witnesses testified positively to the genuineness of the signature and the facts of execution, and the only adverse evidence was the opinion of certain wit- nesses that the signature of testator was a forgery, the contest was properly refused.^^" But if the evidence is such as to sustain a verdict in favor of parties desiring the issue the issue will be awarded.^^i And where the evidence tends to show both mental incapacity and undue influence, an issue should be awarded on both grounds.232 In other jurisdictions the parties in cases where contest as- sumes the form of a petition to revoke probate, may have a jury only where the original probate was "without contest." Hence, where written opposition to the admission of a will to probate was filed, which was demurred to, and the demurrer^was sus- tained, it was held that this did not amount to a "contest.^ The petitioner might, therefore, have a jury trial in his suit to revoke probate.^^^ Where the court transmits such issues it can not transmit issues on the validity of part of the will only, such part not being distinct from the rest^^^ nor can it transmit new issues after directing prior issues on the validity of the will.^^^ In other states a jury trial is allowed in will contests as in actions at law.^^^^ And in some states the statute not only allows a jury, but makes its intervention necessary, so that it Rowson's Estate, 175 Pa. St. 150; from its nonexistence at his death, Rice's Estate, 173 Pa. St. 298 ; Har- raised an issue for the jury.) vey's Estate, 181 Pa. St. 207; Cole- 232 Armor's Estate, 154 Pa. bt. man's Estate, 185 Pa. St. 437 ; Ca- 517. in«rnl hill'sEstate, 180Pa. St. 131; Wid- 233 Robinson's Estate, 106 Cal. dowson's Estate, 189 Pa. St. 338; 493. 41 Atl. 977; Hope v. Campbell (H. -^Fisher v. Boyce, 81 Md. 46^ L) (1899), A. C. 1. 235 Meyer v. Henderson, 88 Md. 230Bouglass's Estate, 162 Pa. St. ^^l^^^J^^'^;^^ ^, ,,. ^,p. ''Lcardner'sEstate, 164Pa. St. 241; ''\ '''^ 'ttl "^^''^l s 420 (Where the impossibility of Smith. 127 Mo. 567, 583, 28 b. 4^u. ^vviiei ' . . , . w 191- 29 S. W. 836; In re Lau- testator's getting possession of. his ^"^^^'^^^ ""„ will as balanced against the pre- dy, 148 N. Y. 4U^. sumption of its revocation arising 392 LAW OF WILLS. is error for the court to render judgment on demiirrer.^^'^ And in other jurisdictions the court has no power to grant a non- suit in a contest.^^* In some jurisdictions the parties may, by agreement, waive a jury and submit the issues -to the court ; ^^^ and in Illinois, even though the statute says that will contests "shall" be tried to a jury, the jury can be waived, since "shall" is construed as "may,""^^ In still other jurisdictions a jury is allowed in will contests, but its verdict is not conclusive as at common law, but is ad- visory merely, as in feigned issues in equity.^^^ §332. General powers of the court. Where notice is to be given to interested parties, it is not reversible error for the court, after assigning an application to probate a will for hearing, to take it off the assignment docket in order to give an absent heir fuller notice than he was, strictly speaking, entitled to.-^^ Where the parties interested are not entitled to notice, it is error for the court to refuse to hear an application for ad- mission of a will to probate until notice has been given.^'*^ After an application for admission of a will to probate, the court may allow proponent to withdraw the will before a final submission of the case, and such withdrawal, even after a caveat has been filed, will work a discontinuance, so that the will may subsequently be re-propounded.^*^ 237 Walker v. Walker, 14 0. S. 111. 545; Whipple v. Eddy, 161 111. 157; Holt V. Lamb, 17 0. S. 374; 114. Cooch V. Cooch, 18 Ohio, 146. In 210 Whipple v. Eddy, 161 111. 114. Ohio a court has power to direct 241 Medill v. Snyder, 61 Kan. a nonsuit in case of a total failure 15 ; 58 Pac. 962 ; Jones v. Roberts, of evidence upon a material point. 96 Wis. 427 ; 70 N. W. 685 ; Bryant Edwards v. Davis, 30 Weekly Law v. Pierce, 95 Wis. 331; 70 N. W. Bull. 283; Wagner v. Ziegler, 44 297. 0. S. 59. 242 state v. Buckner, 45 La. Ann, 238 McMahon v. McMahon, 100 247. Mo. 97; Young's Will, 123 N. Car. 243 Cornelius v. Malone, 34 Oreg. 358 ; Hulson v. Sawyer, 104 N. Car. 192. 1. 244 Fisher's Will, 49 N. J. Eq. 517. 239 Clausenius v. Clausenius, 179 393 LAW OF WILLS. Evidence as to when witness beard of testator's death is >i armless error and not reversible."'*'' '1!::; trial nuay be .Uowed in a will contest on n^ot.on m a nroner caser" and snch motion is usually necessary o allow r^ew of the weight and suiBciency of the evidence rn error proceedings.^" And even where there is no opposition to a p Xte ot^a testament of personalty, the court may be justrfied hrefusing to admit it to probate, where the same instrument had been found to be procured from an incompetent testator by fraud and undue influence iu^a contest by the bcir to test its validity as a devise of realty.-^^ §333. Charge of court. Tliere are but few rules on the subject of the charge of the court to the jury which are peculiar ^ the law of wills or fin-l there a different fomi of expression from ordinary cases. No attempt can be made here either to repeat in detail the rules ^vhich govern the charge of the court in general, or to repeat the rule of substantive law which have been given already, and which in proper cases the court must give in its charge to the jury.^^^ „ , , ,v?ii 07 Tn 192 (Full charge as to sanity.) "It 245renton's Will, 97 io. u^. v ^.i, + „+ +1,^ +imp 2.6 Ellis V. Ellis, - Ky. -; 46 is not necessary that at the time of the execution of said instrument ^•.?/Tu;ker V. Cole, 169 111. 150. said A B should be possessed of 24sBa.rtholick's Will, Ul N. Y. all the physical or mental health 01 vi<^or of a person enjoying the 01- ''L Since many forms of charges, di^ary strength and facailties of either Approved or specifically crit- body and mind. He might indeed sed by courts of la's t resort, have harbor insane delusions and be an been -ven under the respective top- actual monomaniac on a topic en- ics to wMch they refer, no attempt tirely disconnected from the dispo- w 11 be made to give an exhaustive sition of his estate, and at the same reofoTmso charges here. Three time be fully capable of making a set of forms 01 g ^^.^^ ^^^^ ^^^^ re^une^ mere- '^(ChaitTs :esr;tion of ly that he should be possessed of sanity) ''Everv person is presumed sufficient intelligence and memory r;r f so!nd\n-nd until the con- fairly -^/f -^J^'/^^^X^f, Lrv is shown." Sturdevant's Ap- comprehend the effect of ^hat he 7-nC.Z 390 • Blough V. Parry, was doing, to appreciate his rela- ^' " . .?, tions to the natural objects of his 144 Tnd. 403. 394 LAW OF WILLS. All that will be attempted here will be to state some of the applications, peculiar to will contests, of the general rules ou the subject of the charge of the court. The court, in its charge to the jury, must, in some way, refer to the instrument offered as the last will of testator, but how to do so without expressing in some wav the court's opinion of the instrument has pro\'ed of some difficulty. It is not erro- neous for the court to refer to such instrument as a "will" or to decedent as "testator" f^^ nor is it reversible error for the court to refer to such instrument as the "pretended will" where the rest of the charge made it clear that the trial court used this expression only to identify the instrument and not to ex- press the oj^inion that the will was not valid. This expression was, however, criticized by the supreme court.^^^ The ex- pression "j)urported will" has met with more expression of ap- proval from the court of last resort than the others.^^^ If the court has charged correctly upon a point it is not error to refuse to give an additional correct charge upon such jDoint.^^^ If the court has charged fully upon the general question of unsoundness of mind and the different forms thereof, it is bounty, and understand the charac- feeting part of the will.) "A will ter and consequences of the provis- may be void in part and valid in ions of his %vill; and that he should part; if the jury should find that be possessed of sufficient intelligence the legacy given to A N by the pro- and memory to understand the na-. visions of the will was obtained ture of the business in which he was by her undue influence, then the leg- engaged, to recollect the property acy only would be void, and not the of which he wished to dispose, the remaining provisions of the will, persons to whom he wished to con- imless the jury should further find vey it and the manner in which that the undue influence extended to he desired to distribute it among the entire will." Harrison's Ap- them. If testator, at the time of peal, 48 Conn. 202. the execution of said instrument 250 Hollenbeck v. Cook, 180 111. had the degree of understanding 65 ; Goble v. Ranch, 50 S. Car. 95 ; and memory here stated, he pos- 27 S. E. 555. sessed testamentary capacity and 251 Keithley v, Stafford, 126 111. was in legal contemplation of sound 507. mind and could make a valid will. 252 Egbers v. Egbers, 177 111. 82. St. Leger's App. 34 Conn. 434. 253 Daly v. Daly, 183 111. 269 ; 55 (Charge as to imdue influence af- N. E. 671. LAW OF WILLS. 395 not error to refuse to charge specifically upon illusions and liallucinations,^^'* nor to refuse to give a further definition of "insane dehision."-^^ If no evidence is offered upon a certain issue the court may instruct the jury to disregard that issue,^^^ or may ignore that issue entirely ; ^^'^ hut it will be error to charge upon such issue.-'^* But the charge should not ignore the presumptions and inferences which may be considered by the jury together with direct evidence.^^^ So, where the issue is that of undue influence it is not error to assume due execution of the will in the charge to the jury.-^'^ If the evidence is conflicting it is error for the court either to grant a non-suit or to direct a verdict.^*^^ Where the court is not requested by either party to charge upon an issue upon which evidence is adduced, such omission is not reversible error ; ^^^ and where too many issues were sent to the jury and the court instructed them to find only on the proper issues, it was held not to be reversible error.^*^^ If the jury, upon sufficient evidence, find specially for con- testants on two issues, error in the charge on one issue is no ground for reversal, as the other finding supports the judg- ment. ^^^ If the charge, as a whole, is so clear as not to mislead, it is not erroneous, even though detached clauses might be subject to criticism. Thus, a charge, which is well based on evidence, to find for the propounders if the testator was of sound mind, 254 Wallis V. Luhring, 134 Ind. 259 Hudson v. Adams, 20 Ky. Law 447; 34 N. E. 231. Rep. 1267; 49 S. W. 192. 2->3 Farmer v. Farmer, 129 Mo. 260 Graybeal v. Gardiner, 146 111. 530. 337 ; 34 N. E. 528. 256 Entwistle v. Meikle, 180 111. 261 Gay v. Sanders, 101 Ga. 601 9; West v. West, 144 Mo. 119; 46 262 Turner's Guardian v. King, S. W. 139; Stevens v. Leonard 32 S. W. 941. 154 Ind. 67 ; 56 N. E. 27. 263 Adams v. Rodman, 102 Wis. 257 Ellis V. Ellis, — Ky. — ; 46 456; modified 102 Wis. 464. S. W. 521. , 26-tPutt V. Putt, 149 Ind. 30; 258Nieman v, Schnitker, 181 111. 48 N. E. 356. 400; Boone v. Ritchie (Ky.), 1899; 53 S. W. 518. 396 LAW OF WILLS. and against them if the will was caused by undue influence, was not so inconsistent as to require reversal.^^^ An omission to charge fully upon incapacity is a harmless error where a subsequent charge supplies the omission.^*''^ So, where certain facts, if true, clearly were undue influence, it was held not to be reversible error for the court in one part of his charge to tell the jury that such facts ''tended to show undue influence," where in the rest of his charge he made it clear that such facts were undue influence if true.^®'^ An erroneous charge to the effect that one of contestants would take as much if the will were sustained as if it were overthrown, is reversible error.^^^ A charge that withdraws competent evidence from the con- sideration of the jury is erroneous. Thus, it is error to charge that forgetfulness has no tendency to prove want of capacity.^^^ A charge which assumes certain facts as proved which were not in evidence is also erroneous.'^*^ The court should not, in its charge, give excessive and undue prominence to part of the evidence to the exclusion of the rest.-" The court is not obliged to charge the jury upon abstract law questions. Thus where the executor was not offered as a witness by either party, but his competency was disputed in argument by counsel, the court is not obliged to charge as to his com- petency.^"^^ 265Bramel v. Bramel, — Ky. — ; Wis. 581: 80 X. W. 921; MclntosL 39 S. W. 520; Barkley v. Cemetery v. Moore (Tex. Civ. App.) (1899), Association, 15.3 Mo. 300; Gordon v. 53 S. W. 611. But a charge which Burris, 153 Mo. 223. states an hypothetical case is not 26G Folks V. Folks, — Ky. (1900) ; objectionable as assuming such case. 54 S. W. 837; Gordon v. Burris Gordon v. Burris (Mo.) (1899), 153 Mo. 223; Turner's Appeal, 72 153 Mo. 223. Thus a charge that Conn. 305. a will was invalid if caused by un- 267 Manley's Exr. v. Staples, 65 due influence is not objectionable Vt. 370. as assuming the existence of the un- 2C.S Culp V. Gulp, 142 Ind. 159. due influence. 260 Bush V. Delano, 113 Mich. 34. 2-1 Coats v. Lynch. 1.52 Mo. 161. 270 Nieman v. Schnitker, 181 111. 272 Crenshaw v. Johnson, 120 N. 400 : Powers' Ex'r v. Powers ( Ky. ) , Car. 270. 52 S. W. 845; Fox v. Martin. 104 LAW OF WILLS. 397 As the credibility of witnesses and weight of evidence, es- pecially of opinion evidence, is peculiarly for the jury, the court should decline to charge upon such points.^'^^ It is, therefore, error for the court to charge the jury that other wit- nesses may have had better opportunities for observation than the subscribing witnesses, where there is no evidence that other witnesses were present.^'^^ In Pennsylvania the court may, in its charge, show its own opinion as to the credibility of the witnesses without com- m.itting error.^''^^ It is error for the court to coerce the jury into an agreement, by refusing to discharge them after it is evident that they will not agree voluntarily, by threatening to retain them an in- definite time and to have them published as unfit to be jury- men, and by charging them that their agreement is not a matter of conscience but of judgment.^'^^ It is error for the court to allow an attorney, after a witness has testified that testatrix had a very strong mind and remark- able memory to say, "I agree with you; I have known her most of my life." ^"^ But where the verdict of the jury is ad- visory merely the admission of incompetent and immaterial evidence can not be ground for reversal.^'^^ JSTor is error in urging an agreement reversible.^'^^ §334. Evidence sufficient to support a verdict. Where a juiy is allowed by statute in will contests, and its verdict is not advisory merely, but has the effect of the verdict of a jury at common law, the same principles of law that apply to the verdicts of juries in other cases are applicable. If the evidence upon a point in issue is conflicting the ques- 273Burney v. Torrey, 100 Ala. 2-7 Goldthorp v. Goldthorp. 106 157: Turner's Appeal, 72 Conn. 305. To. 722; 77 N. W. 471. 274Xieman v. Schnitker, 181 111. 27s ftj-yant v. Pierce, 95 Wis. 331; 400. 70 N. W. 207. 275McCormick v. McCormick, 194 279 Jones v. Roberts, 96 Wis. 427; Pa. St. 107; 45 Atl. 88. ' 70 N. W. 685. 276 Miller v. Miller, 187 Pa. St. 572; 41 Atl. 277. 398 LAW OF WILLS. tion is for the consideration of the jury, including not only the direct evidence, but the inferences that may be drawn there- from ; ^^° and this jDroiDosition is especially true in cases of mental capacity and undue influence.^^^ Where the evidence is conflicting, therefore, the jury should pass upon the question of the validity of the will under proper instructions from the court, and the verdict should not be disturbed unless clearly and manifestly against the weight of the evidence.^*- Thus, when the evidence tended to show that two of testa- tor's sons exerted influence over him, and that immediately after interviews with them testator spoke of changing his will, and did change it, it was held enough to go to the jury.^^^ But where the verdict is entirely unsupported by the evi- dence, or in some jurisdictions where it is clearly contrary to the weight of the evidence, the court will set it aside.^*^ Thus, where the only evidence of mental incapacity is that testator was in bad health and somewhat absent-minded, a verdict against his capacity should be set aside.'^^ So, where the only evidence as to capacity is that testator was old and feeble, and that his mind at the date of making the will was not as good as formerly; ^^® and so where the only evidence 28oCaven v, Agnew, 186 Pa. St. 314. 281 Lischy v. Schrader, — Ky. — ; 47 S. W. 611; Crockett v. Davis, 81 Md. 134; Gordon v. Burris. 141 Mo. 602; Rivard v. Rivard, 109 Mich. 98; Caven v. Agnew, 186 Pa. St. 314. 282 Brooke's Appeal 68 Conn. 294 ; Harp V. Parr, 168 111. 459; Kelley V. Kelley, 168 111. 501; Petefish v. Becker, 176 111. 448 ; Bever v. Spang- ler, 93 To. 576; Allison's Estate, 104 lo. 130; Hudson v. Hughan, 56 Han. 152; Morris v. Morton's Ex'r, — Ky. — ; 20 S. W. 287: Wills v. Tanner, — Ky. — ; 39 S. W. 422; Howat V. Howat's Ex'r, — Ky. — ; 41 S. W. 771 ; Hudson v. Adams, — Ky. — ; 49 S. W. 192; Johnson v. Johnson, — Ky. — ; 46 S. W. 456 ; Hiss V. Wick, 78 Md. 439 ; Campbell V. McGuiggan (N. J. Prer.), 34 Atl. 383; Hurley y. O'Brien, — Greg. — : 54 Pac. 947 ; McMaster v. Scriven, 85 Wis. 162: Spehn v. Huebschen, 83 Wis. 313; West v. West, 144 Mo. 119; 46 S. W. 139. 285 Rivard v. Rivard, 109 Mich. 98. 284 Wilcoxon V. Wilcoxon, 165 111. 454; Farnum v. Boyd, 56 N. J. Eq. 766. 286McFadin \. Catron, 138 Mo. 197; In re Cline, 24 Ore. 175. 286 O'Connor v. Madison. 98 Mich. 183; Von de Veld v. Judj^ 143 Mo. 348. LAW OF WILLS. 399 of incapacity was that testator was becoming forgetful, inco- herent and garrulous.^*^ Where the evidence is totally wanting on a necessary point the court may sustain a demurrer to the evidence,^^^ or may direct a verdict on the issue upon which there is a total failure of proof,^^^ even in jurisdictions where the intervention of a jury is necessary. Where there are two issues, such as incapacity and undue^ influence, a verdict for contestants on both issues will not be set aside because of a total failure of proof on one issue only.290 As the credibility of the witnesses is peculiarly a question for the jury, a verdict of the jury on the finding of the trial court where the case is tried to the court, is not necessarily contrary to the weight of the evidence, where tlie testimony of a trustee of a secret trust was not believed, though uncontra- dicted, the evidence disclosing a very strong bias on his part.2^1 §335. Form of verdict and judgment. The form of the judgment in contest proceedings is largely detennined by local statutes and procedure. The issue usually is merely the validity of the will in dispute, and therefore in a suit to contest a will as a forgery, where the evidence disclosed that a lost will was the last will and testament of testator, under which lost will contestants were beneficiaries, the court should merely pass on the validity of the alleged forgery, and not establish the lost will.^^^ Where the finding in the contest is that the purported will is not the last will of testator, the decree may revoke probate and all proceedings thereunder.^^^ 287 Wood V. Lane, 102 Ga. 199; Holmberg v. Phillips, — To. — ; 78 N. W. 66; Riley v. Sherwood, 144 Mo. 354. 28S Von de Veld v. Judy, 143 Mo. 348. 289 Ellis V. Ellis, — Ky. — ; 46 S. W. 521 ; West v. West. 144 Mo. 119; 46 S. W. 139. See Sec. 333. 290Fenton's Will, 97 lo. 192; 66 N. W. 99. 291 Trustees of Amherst Colleije v. Eitch, 151 N. Y. 282. 292 McDonald v. McDonald, 142 Ind. 55. 293 Sinnet v. Bowman, 151 111. 146. 400 I.AW OF WILLS. In Missouri the verdict of the jury is final, and it is not necessary to -enter judgment, thereon.-^'* In some states the jury is required to bring in a general verdict for or against the will.^^^ In other states the verdict must be a special one.-^^ In any case the findings upon which the judgment is based must be consistent. It is, therefore, error to enter judgment on a finding that testator was competent, that he made his will under the influence of an insane delusion, and that he made it under undue influence.^^^ But it is not ordinarily held necessary that the order of probate should make a separate finding as to each fact necessary to establish the validity of the will.-^« Thus, an order which shows that the witnesses were exam- ined, and that thereupon the will was ordered filed and ad- mitted to probate, is sufficient without a special finding of due execution.^^^ Where, on formal and regular hearing, the probate court orders the will admitted to probate and record, such will is considered as recorded, even though the actual writing out of the record has not yet been done.^^*^ In some states the fonnal order of probate is not necessary to make a record which establishes the validity of the will. Where the law authorizes record only after the court has or- dered the will admitted to probate, a record which shows that the will is exhibited, filed and recorded, establishes presimip- tively at least that the will was properly recorded in compli- ance with an order admitting it to probate.^^^ And where the court of probate jurisdiction allows the executor to act as such, it may be presumed that the court first secured proof of such will and ordered its admission to probate.^"^ 294 Gordon V. Burris, 141 Mo. 602. soo McClaskey v. Barr, 54 Fed. 295 See Sec. 324. 781, affirming 47 Fed. 154. 29fi In re Langan, 74 Cal. 353. 3oi Keister v. Keister, 178 111. 297Gwin V. Gwin, — Ida. — ; 103; Lawrence v. Oglesby, 178 111. 48 Pac. 295. 123; Rothwell v. Jamison, — Mo. 298 Baker v. Cravens, 150 Ind. — ; 49 S. W. .503. 199; Evansville, etc. Company v. 302 Witt v. Cutter. 38 Mich. 189; Winsor, 148 Ind. 682. Holliday v. Ward, 19 Pa. St. 405; 299 Ilolman v. Puddle. 8 0. S. 384. Counts v. Wilson, 45 S. Car. 571. LAW OF 'WILLS. 401 Clerical irregularities in making out the order of probate or in recording the will do not invalidate the proceedings if otherwise regular. So, where the will of Martha V. Baker was offered for probate, which fact clearly appeared from the record, the va- lidity of the probate was not defeated by the fact that the entry of probate recited that the will of "Mary Baker" was filed.^*'^ And where the will was executed in due form and presented for probate and admitted to probate, the fact that the clerk copied it erroneously was not allowed to defeat the rights of the parties claiming thereunder.^"'* And a statute requiring orders to be entered at length and signed was held to be direc- tory only.^°^ A statute that the evidence of subscribing wit- nesses should be reduced to writing was held to be directory only, and its violation did not invalidate the will.^°^ But where the instrument offered for probate was not executed according to law, an order of the court having probate powers that it be admitted to record "to have such effect as it may" is not an order admitting it to probate as the last will of de- cedent.^"'^ §336. Effect and operation of order of probate. An order of j)robate in common form is in almost every state as binding as a probate in solemn form where not con- tested in the manner prescribed by statute. The effect of such order will be considered with the effect of an order of probate in solemn form in the following sections. It is conclusive not only in the state in which it is probated, but in sister states.^''^ §337. Direct attack. As has already been said, the modern statutes generally pro- vide for direct attack upon probate in common form by means of appeal, suit to contest will in the nature of appeal, and the 303 Baker v. Cravens, 150 Ind. 146; Hillyer v. Schenck, 15 N. J. Eq. 199. 398. 304MeNeely v. Pearson (Tenn. 306 Reese v. Nolan, 99 Ala. 203. Ch. App.) 42 S. W. 165. sot Chase v. Stockett, 72 Md. 235. 305McCrea v. Haraszthy, 51 Cal. sos Martin v. Stovall (Tenn.) 52 ' S. W. 206. 402 LAW or WILLS. like. Such direct attack is provided for by statute or by set- tled rules of law and equity. It is not only permitted but is actually provided for by law, and its validity is beyond all question.^"^ In Louisiana a will may be attacked on the final "homologa- tion" of executor's accounts if all the parties interested are before the court. As this is said to be a species of direct at- tack, it is not regarded by the court as an exception to the rule forbidding collateral attack.^ ^° In other states one interested adversely to the will who is not notified of the pendency of proceedings to admit such will to probate, may move to have the order admitting such will to probate vacated ; and upon such hearing no presumption exists as to 'the validity of the original probate, and the will is prac- tically offered for probate de novo.^^^ But these states all treat such an application as a direct attack upon the order of probate, and not a collateral attack. In allowing such application they do not, in form, at least, recognize collateral attack.^^^ But where an application by one not properly notified of the pendency of the original pro- ceedings to probate the will, to vacate the order of probate, is held to be a collateral attack upon such order, it is not al- lowed.^ ^^ 300 See Sec. 323; Herring v. Rick- settled that any distributee of th6 etts, 101 Ala. (93), 340; 13 So. 502; estate of the testator, entitled to Justus's Succession, 45 La. Ann. notice of the probate of the will, and 190. not having received such notice pri- 310 Shaffer's Succession, 50 La. or to the probate, may make an Ann. 601 ; Fuentes v. Gaines, 25 La. application to the court in which Ann. 85. the will was probated to vacate and 311 Herring v. Ricketts, 101 Ala. revoke the probate, and that the 340 ; Knox v. Paull, 95 Ala. 505 ; same should be granted if it appear Dickey v. Vann, 81 Ala. 425; Hall that the applicant was entitled to V. Hall, 47 Ala. 290; Randolph v. notice and none was given." Hughes, 89 N. Car. 428 ; Feuchter Kirby v. Kirby, 40 Ala. 492, quot- V. Keyl, 48 O. S. 357; Hotehkiss ed in Herring v. Ricketts, 101 Ala. v. Ladd, 62 Vt. 209: Heminway v. (1893) 340; 13 So. 502, citing Dick- Roberts, 98 Wis. 501. ey v. Vann, 81 Ala. 425; Hall v. 312 "Under a practice established Hall. 47 Ala. 290; Lovett v. Chis- in this state by a series of decisions holm. 30 Ala. 88. which, from their long standing 3i3 Twombley's Will, 120 Cal. 3.50. should not now be questioned, it is LAW OF WILLS. ^03 §338. Appeal and error. Appeal, using the word as a name for a proceeding wKich takes the law and the facts up- together for review by the ap- pellate court, is allowed from a judgment in a will contest only when specifically provided for by statute. Thus, appeal from a contest was once allowed in Ohio,^'^-* but by subsequent change of statute this right has been abolished.^^^ The right of prosecuting error to a judgment in a contest proceeding is usually the same as in other civil cases,^^^ and exceptions may be taken on trial.^^^ An order admitting a will to probate is a final order in a "case," and may be reviewed on error if the provisions of the general statutes on the subject of error are complied with.=^^^ §339. Collateral attack. — On whom is probate binding. In some jurisdictions an order of probate, whether made on probate in common form or probate in solemn form, is bind- ing only upon those who are made parties to the proceeding or else are properly notified of the pendency of such proceed- jj^g_3i9 ]3^-,^ where notice is not given as required this can be taken advantage of only by those who were entitled to have notice. Thus where notice to heirs residing in a foreigni coun- try was not given to consul of such country, as required by stat- ute, no advantage of such omission can be taken by the debtors of testator.^^^ In other jurisdictions the order of probate is binding, not only upon those who are notified of the pendency of such pro- ceedings, but also upon such as were entitled to become parties to such proceedings and had actual knowledge of the same m time to become parties thereto.^^^i j^^ o^i^er jurisdictions the siiMitcliell V. Hogg, 10 0. S. 3i9Med]ock v. Merritt. 102 Ga. 447 212 ; 29 S. E. 185 : Hightower v. Wil- 3i5McMaster v. Keller, 1 Ohio C. liams, — Ga. — : 30 S. E. 862: Lar- Q 47(5, son V. How, 71 Minn. 250; Holt v. 3i6Glancy v. Glancy, 17 0. S. Lamb, 17 0. S. ,374. 134_ . 320 Rice V. Hosking, 105 Mich. siTHolman v. Riddle, 8 0. S. 384. 303; 63 N. W. 311. sisOrmsby v. Webb, 134 U. S. . 321 Young v. Holloway (1895), 47. Prob. 87; 11 Rep. 596. 404 LAW OF WILLS. order of probate is strictly a proceeding i/i rem, and is binding upon the whole world, irrespective of their knowledge of the pendency of proceedings.^^^ §340. Collateral attack not allowed. It is a o-eneral principle of law that collateral attack is not permitted to be made upon any judg-ment or order of court by anyone who is bound thereby. The general rule applies to orders and decrees admitting a will to probate. I^o person who is bound thereby can afterwards attack such order collat- erally when its validity is involved in another judicial pro- ceedino-.^^^ Thus an order of probate after contest can be set aside for fraud only on direct application for such purpose under the statute. It can not be attacked collaterally by in- stituting new proceedings in contest ;^-^ nor by raising the question of the validity of the will in an action by the execu- 322 Dugan V. Northcutt, 7 App. D. C. 351; Crippen v. Dexter, 13 Gray, 330; Brigham v. Faj^er- weather, 140 Mass. 411; McDaniel V. McDaniel, 86 Md. 623; McCam- bridge v. Walraven, 88 Md. 378; Bogardus v. Clark, 4 Paige, 623; Tompkins v. Tompkins, 1 Story C. C. 472 ; Woodruff v. Taylor, 20 Vt. 65 ; Wills V. Spraggins, 3 Grat. 555 ; In re Storey, 20 111. App. 183. 323 Gaines v. Chew, 2 How. 619; Armstrong v. Lear, 12 Wheat. 169; Tarvor v. Tarver, 9 Pet. 174; Brod- erick's Will, 21 Wall. 503: Gaines V. Fuentes 92 U. S. 10; Richardson V. Green, 61 Fed. 423; Boyer v. Decker, 5 App. Div. 623 (N. Y.) ; 40 N. Y. Supp. 469; Maund v. Maund, 94 Ga. 479; Gay v. San- ders, 101 Ga. 601; 28 S. E. 1019; Calloway v. Cooley, 50 Kan. 743 (judgment as a validity of foreign will ) ; Smith v. Holden, 58 Kan. 535; McDaniel v. McDaniel, 86 Md. 623: McCambridge v. Walraven, 88 Md. 378: 41 Atl. 928; Stanley v. Safe Deposit Co. 87 Md. 4,50; Sly V. Hunt, 159 Mass. 151; 21 L. R. A. 680 ; 38 Am. St. Rep. 403 ; Holman v. Perry, 4 Met. ( Mass. ) 492 ; Wilkins V. Hukill, 115 Mich. 594; 73 N. W. 898; Varner v. Johnston, 112 N. Car. 570; 17 S. E. 483: McClure v. Spivey, 123 N. Car. 678: Bolton V. Schriever, 135 N. Y. 65: Le Grange v. Ward, 11 Ohio, 257; Brown v. Bnrdick, 25 O. S. 260; Mosier v. Harmon, 29 O. S. 220; Davis V. Kirksey, 14 Tex. Cir. App. 380; McSpadden v. Farmer (Tex. Civ. Apn.), 23 S. W. 814: Halbert v. De Bode (Tex. Cir. App.), 28 S. W. 58; Dicke v. Wagner, 95 Wis. 260; Carey's Estate, 49 Vt. 236; Morton v. Onion, 45 Vt. 145. But see In re Craft's Estate, 164 Pa. St. 520; Appeal of Martin, 30 Atl. 493: Hegarty's Appeal, 75 Pa. St. 503; Robeno v. Marlatt, 136 Pa. St. 35; 20 Atl. 512. 324 McCambridge v. Walraven, 88 Md. 378 ; 41 Atl. 928. LAW OF WILLS. ^^^ tor to sell testator's real estate to pay his debte;^^^ nor m an action to recover property in which the will is offered m evi- dence to show title.=^26 This is true even if contest proceedings are pending.^'^^ But in some states the probate of a will devising real prop- erty is oiily prinm facie evidence of its validity, and is there- ^ fore liable to collateral attack in any suit in which such will ' may be offered in evidence.^^^s where probate is only prima facie evidence of the validity of the will, it may be attacked collaterally in a suit in equity to set aside a decree of foreclos- ure rendered in a suit against the executor under the will, by showing that the will was not made in contemplation of mar- riage, and was therefore revoked by testator's subsequent mar- riage and the birth of a posthumous child, and that therefore the executor acting as such was not the lawful executor.^ ^9 And where such probate is prima facie evidence of the validity of the will, it is error to charge that it is of no effect what- gygj. 330 §341. What questions are determined by probate. An order admitting a will to probate, if made by a court of competent jurisdiction, is conclusive upon all who, under the local rules of procedure, are bound thereby, as to every fact necessary to be established in order to authorize the admission of the will to probate, except in some states as to certain facts which are jurisdictional in their nature and which the court can not adjudicate. Thus a finding by a court of competent 325Maimd v. Maund, 94 Ga. 479. (probate's) effect as prima facie ev- 320Varner v. Johnston, 112 N. idence of the validity of the will Car. .570; 17 S. E. 483: Warfield v. as to real property, may be over- Fox, 53 Pa. St. 382 ; Wilson v. Gas- come by other evidence showing ton,' "92 Pa. St. 207: Cochran v. the will to be invalid." Young, 104 Pa. St. 333. Belton v. Summer, 31 Fla. 139, 327 Brown v. Burdick, 25 O. S. citing Troy v. Evans, 97 U. S. 1; ogQ Kelly v. Jackson, 6 Pet. (U. S.) 32S Barbour v. Moore, 4 App. D. 622. C. 535 ; Belton v. Summer, 31 Fla. 329 Belton v. Summer, 31 Fla. 139; Corley v. McElmeel, 149 N. 139. Y 998 330 Barbour v. Moore, 4 App. D. C. "In a collateral proceeding its 535. 406 LAW OF WILLS. jurisdiction that a certain instrument is "the last will and tes- tament of deceased" is conclusive as to the mental capacity of testator at the time he made such will with reference to his testamentary capacity and as far as such will is concerned.^^^ But it is held in Kentucky that probate is not conclusive as to the power of a testatrix to dispose of her estate by will.^^- Probate also establishes the absence of such undue influence as in law vitiates a will, as far as the will in question is con- cerned."^^ It also establishes the fact that the will probated was not fraudulently substituted for the genuine will."^^ An order of probate made by a court of competent jurisdiction is conclusive as to the form and regularity of the proceedings in probate,^^^ and can not be attacked collaterally by showing that the will was admitted to probate upon the evidence of only one subscribing witness. ^^^ Unless the statute specially requires it, the record of probata does not have to show a finding as to each element of proof. Thus where the record discloses that only one witness testified the probate was nevertheless valid.^^''' It is said that an order of probate is conclusive as to the legality of the form of the will.^^'^ Where one of the subscribing witnesses was incom- petent, but this fact did not appear on the face of the will, an order admitting such will to probate was not a nullity and could not be attacked collaterally.^^'' An order dismissing an appeal because of defect of parties is no bar to an appeal to which all 331 Smith V. Holden, .58 Kan. 535; v. Maund, 94 Ga. 479; McClure v. Sly V. Hunt, 159 Mass. 151; 21 L. Spivey, 123 N. Car. 678; 31 S. E. E. A. 680; 38 Am. St. Rep. 403; 857. Varner v. Johnston, 112 N. Car. 336 McClure v. Spivey, 123 X. Car. .570; 17 S. E. 483. 678: 31 S. E. 857: Mosier v. Har- 332 Gregory v. Gates, 92 Ky. 532 ; mon, 29 O. S. 220. 13 Ky. L. Rep. 761: 18 S. W. 231; 337 Baker v. Cravens, 150 Ind. Craine v. Edwards, 13 Ky. L. Rep. 199. 499: 17 S. W. 211; 92 Ken. 33s Tygart V. Peeples, 9 Rich. Eq. 109. 46: Craig v. Beatty, 11 S. Car. 375; 333Wilkins v. Hukill, 115 Mich. Blount v. Walker. 28 S. Car. 545, 594; 73 N. W. 898. Burkett v. Whittemore, 36 S. Car. 334 Harp V. Parr, 168 111. 459. 428. 335 Stanley v. Safe Deposit and 33n Chicago Title and Trust Co. v. Trust Company, 88 Md. 401 : Maund Brown, 183 111. 42. LAW OF WILLS. ^^' interested are made parties,=^^^ nor does a decree entered by consent dismissing an appeal bar others who were not parties to such appeal.^^^ A probate court has as a rule jurisdiction to admit to pro- bate only the wills and testaments of persons domiciled within their territorial jurisdictions or owning property therein. An interesting question is presented when it is sought to attack the validity of the order of probate by showing that testator was not domiciled within the jurisdiction of such probate court at the time of his death, and that the order admitting the will to probate is therefore a nullity. It is generally held that though such fact is jurisdictional the court has nevertheless upon such point jurisdiction to hear and determine the fact; and where the court passes upon such fact, either directly or inferen- tially, no collateral attack can be made upon the order of pro- bate by showing that testator did not, in fact, have his domi- cile within the jurisdiction of said court.^^^ Hence, where a will has been admitted to probate in a county of which testa- tor was not a resident at his death, upon false testimony, this order can not be attacked collaterally by a proceeding to pro- bate the will de novo in the proper county.^^^ An order of probate obtained in another jurisdiction after the will has been probated and contest proceedings instituted in the first jurisdiction, is not such an adjudication of testa- tor's domicile in the second jurisdiction that it can not be attacked in the original suit. Indeed, it is not even evidence of testator's domicile in the second jurisdiction.=^^^ The pro- bate court has also authority to pass on the validity of the notice o-iven. No collateral attack can be made on this ground.^^s 340 Miller's Estate, 159 Pa. St. Bolton v. Schriever, 135 N. Y. 65: 562 18 L. R. A. 242 ; Fisher v. Bassett, 34iLischy V. Schrader (Ky.), 47 9 Leigh (Va.) 119. S. W. 611-! 20 Ky. L. R. 843. Contra in Kentucky, Miller v. 342 Hahn v. Kelly, 34 Cal. 391 ; Swan, 91 Ky. 36. Wight V. Wallbaum, 39 111. 554; 343 Cunningham v. Tuley, 154 Ind- Dequindre v. Williams, 31 Ind. 444; 270, 56 N. E. 27. Stewart v. Row, 10 La. Rep. 530; 344 Overby v. Gordon, 13 App. D. McDaniel V. McDaniel, 86 Md. 623 ; C. 392. Johnson V. Beazley. 65 Mo. 250; ■ 345 Stanley v. Safe Deposit Co., 8 / Obert V. Hammel. "18 N. J. L. 73; Md. 450; 88 Md. 401. 408 LAW OF WILLS. A court of probate in admitting a will to probate does not in most states have any jurisdiction to construe the will so as to conclude the parties to such proceeding. Its action does not conclude the parties as to any facts except that the testa- tor possessed the requisite capacity, was not under undue in- fluence and made the will in the manner required by statute.^'' ^ In accordance with this principle a court can not exclude from probate an instrument executed in due form by a com- j)etent testator who was not under restraint, on the sole ground that the instrument itself was not testamentary in its charac- ^gp_347 When a court of probate powers admits a will to pro- bate, this action of the court is conclusive as to the form of the will, but is not conclusive upon the parties as to its con- struction, its legal effect, or its validity, except so far as the form of the instrument, testator's capacity and freedom from restraint, and the fact that the will was not revoked are con- cerned.^'*^ Thus the order of the probate court in admitting a will to probate and allowing the residuary legatee to give bond did not conclusively establish the validity of such resid- uary bequests, nor did it work a transfer of the estate to such residuary legatee.^'*'^ Nor does the admission of a will to pro- bate preclude inquiry as to whether such will was a valid exe- cution of a power f^^ nor does the probate of a will devising real estate determine the capacity of the devisee to take there- 346 Vestry of St. John's Parish v. is obvious that the statute supra Bostwick, 8 App. D. C. 452; Mer- and the authorities preclude such riam's Estate, 136 N. Y. 58; Heg- view of the subject." Barney v. arty's Appeal, 75 Pa. St. 503; Bur- Hayes, 11 Mont, 99, citing Cobb's kett V. Whittemore, 36 S. Car. 428; Estate, 49 Cal, 599; Sanderson's Jones V. Roberts (Jones's Estate), Estate, 74 Cal. 199. 84 Wis. 465; 54 N. W. 917. 348 Merriam's Estate, 136 N. Y. 347 Barney v. Hays, 11 Mont. 99. 58; Burkett v. Whittemore, 36 S. "The respondent claims that these Car. 428; Jones v. Roberts, 84 Wis. instruments when examined and 465 ; Jones v. Roberts, 54 N. W. construed are not of a testamentary 917. character ; that the issues which 349 Jones v. Roberts ( Jones's Es- have been commented on are irrele- tate), 84 Wis. 465, 54 N. W. 917. vant and immaterial and therefore 350 Burkett v. Whittemore, 36 S. there was no error in denying the Car. 428. probate of said will and codicil. It LAW OF WILLS. 409 under. Hence a devise to the United States was not, after admission to probate, liable to direct attack by the heirs on the sole ground that the United States was not authorized to take such devise, as the decree of probate was not an adjudication of such fact.^^^ So where a will written in one language is probated as translated, the court is not bound by the transla- tion, if inaccurate, but may look to the original.^^^ But in some states the probate court is given jurisdiction to construe the will and to decide what interest is passed thereby; and such finding is conculsive if not appealed from.^^^ Where the order of probate is not a nullity, the acts of the executor before the will is set aside are valid and are not subject to attack even if the will is set aside afterward on a direct proceeding.^^^ Where the court had no jurisdiction to make the order admitting the will to probate, such order is a nullity and may be attacked collaterally wherever relied on. What facts prevent the jurisdiction of the court from at- taching is often a question of great difficulty. Where the rec- ord of probate shows affirmatively that the alleged will was not executed in accordance with law, it is held in some jurisdic- tions that the court had no jurisdiction to admit such instru- ment to probate as a will, and the order of probate is there- fore a nullity and may be attacked coUaterally.^^^ But the 351 Merriam's Estate, 136 N. Y. "A judgment of the court of or- 58. dinary ordering the probate of such 352 Cliff's Trusts (1892), 2 Ch. a paper attested by one witness 229 ; Williamson's Will, 6 Ohio N. only, gives the paper no effect as a P. 79. A different view was taken will in any proceeding in which in Caulfield v. Sullivan, 85 N. Y. its validity may be called into ques- 153, where it was held that the tion. The court of ordinary is translation was proof against col- without jurisdiction to render such lateral attack. judgment, which is therefore void. 353 Brown v. Stark, 47 Mo. App. The will . . . had been proved and 370 ; Ward v. Congregational admitted to record ; and yet it had Church, 66 Vt. 490; 29 Atl. 770. no attesting witnesses, as appears 354 Smith V. Smith, 168 111. 488; from the probate itself. . . It is Jones V. Jones, 14 B. Mon. 464; conceded that it had no subscribing Woods V. Nelson, 9 B. Mon. 600. ' witnesses. The will was therefore 355 Hooks V. Stamper, 18 Ga. 471 ; utterly void and of no effect. It Gay V. Sanders, 101 Ga. 601 ; Wall was competent, therefore, to move V. Wall, 123 Pa. St. 545; Bowlby at any time, to set aside the judg- V. Thunder, 105 Pa. St. 173. ment of the ordinary admitting 410 LAW OF WILLS. appearance and consent of adult heirs at the probate of such a will, will bind them where the estate is afterwards distributed, though such probate is of no effect as to minors.^^^ As a court of probate has, as a rule, jurisdiction to admit to probate only wills of deceased testators, an order admitting to ^probate a will of a living man is held to be without the juris- diction of the court, and may be attacked collaterally. The text-book Avriters have discussed the question of the effect of the probate of the will of one who is thought to be dead but who subsequently proves to be alive at the time. The unanimous opinion of the writers upon this subject is that the court of pro- bate powers has no jurisdiction to admit -to probate the will of one who is alive, and that the order admitting the will to pro- bate may be attacked collaterally Avhenever the validity of the will is presented for adjudication. This question does not seem to have been presented to the courts for adjudication, and the authorities cited in support of the proposition are all of them cases where no will was left by the person alleged to have de- ceased ; and his estate was settled on the theory that he died in- testate. In such a case the authorities are almost unanimous to the effect that the court had no jurisdiction to make an order appointing an administrator, or to order any sale of the prop- erty of the alleged decedent; and that such orders may be at- tacked collaterally by the alleged decedent in an action to re- cover his property.^^^ this paper to probate. It was a ssc Gay v. Sanders, 101 Ga. 601 . nullity on its face; and in favor 357 "The general question as to of such a judgment nothing can be whether any court has or can have presumed." Hooker v. Stamper, 18 jurisdiction to grant letters of ad- Ga. 471. ministration on the estate of a liv- " 'A will attested by only two wit- ing person has been much discussed, nesses is void, and can derive no and while the authorities are not aid from probate and being admit- entirely harmonious, yet the great ted to record. The judgment of pro- weight thereof is clearly against the bate is not merely erroneous, but existence of any such jurisdiction. a nullity on its face. Xo motion The ground upon which most of the to set it aside is requisite, nor is decisions rest is that in order to it ever too late to urge its in- confer jurisdiction upon a court to validity.' Cureton v. Taylor, 89 grant letters of administration upon Ga. 490." Gay v. Sanders, 101 Ga. a person's estate, that person must 601. in fact be dead." LAW OF "WILLS. 411 Carr v. Brown, 20 R. I. 215, cit- ing Griffith V. Frazier, 8 Cranch, ■9; Scott V. McNeal, 154 U. S. 34; Duncan v. Stewart," 25 Ala. 408 ; Stevenson v. Superior Court, 62 Cal. 60 ; French v. Frazier, 7 J. J. Marsh. (Ky.) 425; Thomas v. The People, 107 111. 517; Johnson v. Beazley, 65 Mo. 250; Jochumsen v. Bank, 3 Allen (Mass.) 87 ; Waters v. Stick- ney, 12 Allen (Mass.) 1; Day v. Floyd, 130 Mass. 488; Morgan v. Dodge, 44 N. H. 255 ; State v. White, 7 Ired. (N. Car.) 116; Devlin v. Commonwealth, 101 Pa. St. 273; D'Arusment v. Jones, 72 Tenn. 251 ; Withers v. Patterson, 27 Tex. 491; Melia v. Simmons, 45 Wis. 334, and the notes to Bolton v. Schriever, 18 L. R. A. 242, 135 N. Y. 65. Of these cases, Johnson v. Beaz- ley, Waters v. Stickney, Day v. Floyd, Morgan v. Dodge and With- ers V. Patterson, contain merely ob- iter dicta on this point. The other cases cited are express adjudications upon the point. To the same effect are Burns v. Van Loam, 29 La. Ann. 560; Andrews v. Avory, 14 Gratt. (Va.) 229. This case overrules Southwick v. Probate Court, 18 R. I. 402, 28 Atl. 334, insofar as that case recog- nizes the validity of the statute authorizing probate of the will and settlement of the will of one who has been absent and unheard of for seven years. This last case, however, presented for direct adju- dication only the question of the form and sufficiency of the notice of such hearing, and the validity of the statute was tacitly assumed by both parties and the court. To the same eflfect is Smith v. Combs, 49 N. J. Eq. 420. The only cases opposed to this weight of authority are Roderigas. V. East End Savings Institution, 63 N. Y. 460; 76 N. Y. 316; Plume v. Howard Savings Institution, 40 N. J. L. 211. In Roderigas v. East End Savings Institution, 63 N. Y. 460, an administrator was appoint- ed for the estate of a person absent in Cuba. This administrator drew the money of his alleged decedent out of the bank. On the return of the person who was alleged to have died, such person sued to recover this money from the bank. It was held that he could not attack the order finding that he was dead. This decision was rendered by four jiidges, three dissenting. Subse- quently, in 76 N. Y. 316, when this case came before the Court of Ap- peals for the second time, the rec- ord disclosed that the petition for the appointment of an administra- tor only alleged the death of al- leged decedent "upon the best of the knowledge, information and be- lief" of the i^etitioner. It was held that as no proof was offered of death of alleged decedent, and , the pe- tition did not allege such death positively, the court never acquired jurisdiction over his estate, and its orders were nullities subject to col- lateral attack. This case, in 63 N. Y. 460, has been approved only in two later cases. In a New Jersey case, Plume v. Savings Institution, 46 N. J. L. 211, the authority of an administrator was attacked collat- erally, but only because the record did not show specifically that the intestate was dead. It was not claimed that in point of fact he was alive. In an obiter the court ex- pressed approval of Roderigas v. East End Savings Institution, upra, but this case can not be regarded as following the New York decision. In Lavin v. Emigrant Industrial Savings Bank, 18 B'atch. 1, the court said that Roderigas v. Sav- ings Institution had no support else where in tlie authorities of the Ensrlish or American courts. 412 LAW OF WILLS. In a recent Ehode Island case^^^ a state statute specifically gave the court of probate jurisdiction, the right to administer the estate of anyone who should be absent over seven years as if he were dead. This statute was held to be unconstitutional as taking private property without due process of law. A recent Washington case^^^ followed the case of Roderigas V. Savings Bank, 63 N. Y. 460, but was reversed by United States Suj)reme Court,^^^ as taking property without due pro^ cess of law. Under this decision the attempt to administer the estate of one who is alive raises a federal question, and a deci- sion of a state supreme court upholding such administration will be reversed by the United States Sui3reme Court on error. In some courts it is held that an administrator who pays only after suit, is protected, even if supposed decedent is alive.^®^ §342. Effect of saving right of contest to certain parties. Where in a contest proceeding the alleged last will of testa- tor is found invalid, the rule supported by the weight of au- thority is that it is not invalid alone as to those contesting the will, but that it is invalid in toto as to all parties interested therein.^ ^^ In California the general doctrine is qualified by holding that where one of the heirs was a minor, and brought suit to contest the will within the time limit after his disability, was removed, it would not enure to the benefit of the other heirs who allowed the time limit after their disabilities were removed to expire.^*'^ If the right to contest the will is saved for one of the par- ties interested, it is saved for all f^"^ and if the judgment in the contest is erroneous as to one it is erroneous as to all.^^^ 358 Carr v. Brown, 20 R. I. 215. 363 Samson v. Samson, 64 Cal. 359 Scott V. McNeal, 5 Wash. 309. 327. 360 Scott V. McNeal, 154 U. S. 34. 364 Powell v. Koehler, 52 O. S. 361 bay V. Floyd, 130 Mass. 488. 10.3. 362 Clements v. McGinn, — Cal. 365 Wells v. Wells, 144 Mo. 198; — ; 33 Pac. 920: Freud's Estate, 73 45 S. W.. 1095. Cal. 555: Bartholick's Estate, 141 N. Y. 166. •LAW OF WILLS. 413 §343. Effect of judgment refusing to admit will to probate. — Re-propounding. In some jurisdictions, usually under early systems of pro- cedure, no means is given by appeal or error of direct attack upon a judgment of the probate court refusing to admit a will to probate. In such jurisdictions it is usually permitted any party interested in having a will admitted to probate to re- propound it after it has been refused admission to probate, if he adduces new evidence.^®^ In some jurisdictions an order refusing to admit a will to probate is not a final order, and is not appealable.^^''" The policy of modern legislation is to pro- vide a means of finally determining the validity of a will when offered for probate. It is often provided that an appeal may be taken from an order of the court of probate jurisdiction, refusing to admit the will to probate. When the final order is made, whether in the probate court or the appellate court, from which no appeal can be taken to a higher court — that is to say, from which order it is impossible to take both facts and evidence to a higher court for another trial — it is generally held that error will lie from such final order to the courts of last resort, as in other cases.^^^ Where such means of direct attack upon an order refusing to admit a will to probate is al- lowed, the rule in force generally is that no person who was served with notice of the proceedings in the probate court, in time to appeal therefrom, can re-propound the Avill which has been refused admission to probate. The methods of direct at- tack provided by statute are exclusive as far as such parties are concerned.^^^ But such order refusing admission of the will to probate is not binding upon parties interested in having the will admitted to probate who were not notified of the pend- ency of proceedings in the prol)ate court. Such parties not 866 Swazey v. Blackman, 8 Ohio, Contra, Preston v. Trust Co., 94 5 ; Hunter's Will. 6 Ohio, 499 ; Chap- Ky. 295. man's Will, 6 Ohio, 148 ; Feuchter aes M. E. Missionary Society v. V. Keyl. 48 O. S. .1.57 : Lopez's Sue- Ely, .56 O. S. 405. cession. 3.3 La. Ann. 368. - 369 M. E. Missionary Society v. 367 Smith's Estate, 98 Cal. 636. Ely, 56 0. S. 405. 414 LAW OF Wills. being concluded bj this order may re-propound the will for pro- bate.=^^« In New York the statute makes no provision as to the effect of a refusal to admit to probate a will passing real estate for which probate is imnecessary. Such order is not binding upon devisee, but he may subsequently, in a partition suit between the heirs to which he is made a party, offer the will already re- fused, and have its validity tried to a jury.^^^ As the reasons given for refusing to allow a will, once refused admission to probate, to be re-propounded, do not apply where a later will is offered for probate, it is held that a will which has once been refused admission to probate may be re-propounded with a codicil whereby it is republished.^^^ §344. Costs. In a few jurisdictions contestant must file a bond to secure costs,-^^^ but usually this is not required."'^^ The theory of costs in probate and contest proceedings, entertained by most courts, is that in the absence of a statute directing that costs be taxed against the losing party, as in an action at law, the court has the same discretionary power as in equity cases to tax costs ac- cording to right and to the equities of the case.^^^ Courts which entertain this view of their power over costs may allow to the executor his costs for successfully defending the will, 370 Vestry of St. John's Parish v. partition suit. Putt v. Putt, 14f) Bostwick, 8 App. D. C. 452; Feuch- Ind. 30. ter V. Keyle, 48 O. S. 357; In re 374 Cash v. Lust, 142 Mo. 630. Stacey's Will, 6 Ohio Dec. 142; 4 375 McKinney's Estate, 112 Cal. Ohio N. P. 143. 447 (this rule is enacted into a stat- 37iCorley v. McElmeel, 149 N. Y. ute in California) ; Shaw v. Camp, 56 111. App. 23, affirmed, 163 111 372 Barney v. Hays, 11 Mont. 99. 144; Wilbur v. Wilbur, 138 111. 446; 373 Harrison v. Stanton, 146 Ind. Alvord v. Stone, 78 Me. 296; Wall 366; Starkweather v. Bell (S. D.) ace v. Sheldon, 56 Neb. 55; 76 N. W (1899), 80 N. W. 183: Grover's 418; McClary v. Stull, 44 Neb. 175 Succession, 49 La. Ann. 1050. But Mayo v. Jones, 78 jSL Qr^y 490 this statute applies only to formal Jones v. Roberts, 96 Wis. 427 : 71 N contests and does not apply where W. 883; Gorkow's Estate, 20 Wash, similar questions are raised in a 563. 228. 415 LAW OF WILLS. tot)e paid out of the funds of the estate in his hands,^^'' while ^f the exexcutor exerted undue influence over testator, whereby he induced him to make the will in litigation, costs may be awarded against such executor upon a judgment adverse to the AvilL^^"^ A defeated contestant, who has carried on litigation in o-ood faitli, and upon reasonable cause for appeal, may have his'costs paid out of the estate.^^« So where one who is named iu a will as executor and legatee offers a will for probate and fails the court may in its discretion allow him his costs,^^^ and such allowance is not made invalid by the fact that at the time of such allowance there was no administrator of such estate.^^^ When this view is entertained, an administrator with the will annexed can not take the pauper's oath on appeal, as the costs are payable out of the estate.^^^ In the absence of special rea- sons for making the costs payable out of the estate, the courts, in the furtherance of justice, often compel the unsuccessful proponent of the will to pay the costs of the application,^^«^^ and the same rule will apply to unsuccessful contestants.=^8 The word "costs," as used in this connection, means actual tax- able costs, and not expenses other than taxable costs,^«^ and when contestants have multiplied costs unnecessarily by acting separatelv, the court will allow only necessary costs.^^^ When defeated "'contestant has, through a mistaken view of the law, which proponent shared, resisted probate upon immaterial is- 376 Brilliant v. Wayne Circuit 447, citing Jackman's Will, 26 Wis. Judges, 110 Mich. 68; 67 N. W. 143; Downie's Will 42 Wis 66^ 1101; Hoppe's Will, 102 Wis. 54. asi CrocKer v. Balch,lenn. (1900) , 3T7 McKinney's Estate, 112 Cal. 55 S. W. 307. 44 3S2 ]Moyer v. Swyart, 125 111. 262 ; 3Ts01mstead's Estate, 120 Cal. Shaw v. Moderwell, 104 111. 64 447 • 52 Pac. 804 ; Cheever v. North, 3S3 Crawford v. . Thomas (Ivy.) 106 Mich. 390; Jones v. Roberts, 90 (1899), 54 S. W. 197. Wis 427- 71 N. W. 883; Clapp v. 384 Cheever v. North, 106 Mich Fuilerton,34N.Y.190;LeFevrev. 390; Brilliant v. Wayne Circuit Le Fevre, 59 N. Y. 434; In re Wil- Judges, 110 Mich. 68; 6< N. W . son, 103 N. Y. 374 (the rule given 1101. ^^ t t in the text was questioned in this as. Browning v. Mostyn, 66 L. J. X p. 37. So when unnecessary amend- 3T9 01mstead's Estate, 120 Cal. ments have been made. Coke v. case ) . 447. 3S0 Olmstead's Estate, 120 Cal. French, 76 Law. T. 103. 416 LAW OF WILLS. sues, there is in law no reasonable ground for such resistance, and contestant can not have costs out of the estate.^^*^ While no fixed line can be drawn between the different courts, since the taxation of costs in such cases as contest is peculiarly with- in the discretion of the court, the rule practically enforced in many courts ordinarily is, in the absence of special circum- stances, that the defeated party should pay the costs of the pro- ceeding.^^'^ §345. Attorney fees. In most jurisdictions attorney's fees are not regarded as costs unless by virtue of a statutory provision, and accordingly are not to be paid out of the estate, but by the party incurring them, even where the circumstances are such that he may re- cover his costs.^^^ In some states the opinion is expressed that attorney's fees are to be allowed in the discretion of the court.^^^ But even where such view is taken, attorney's fees are not allowed where attorney had a contract with defeated contestants for a certain proportion of the estate if success- ful,^^^ nor for ser^dces rendered to one legatee alone,^^^ nor for services rendered to unsuccessful proponent f^^ nor to unsuc- cessful contestant, unless some circumstances stronger than good faith on his part and probable cause for contest render them proper.^^^ There is a diversity of opinion upon this last point, however, some courts allowing a defeated contestant his sse Burr v. Burr, 53 N. J. Eq. ssn Turner's Guardian v. King, 32 627. (Ky.) S. W. 941; McClary v. Stull, 3X' Browning v. Mostyn, 6G L. J. 44 Neb. 175. 37; Egbers v. Egbers, 177 111. 82; 39o McClary v. Stull, 44 Neb. 175. Wallace v. Sheldon, 56 Neb. 55 ; 76 39i Atkinson v. May's Estate, 57 N. W. 418. Neb. 137; 77 N. W. 343. 3SS oimstead's Estate, 120 Cal. 392 Clark v. Turner, 50 Neb. 290; 447 ; 52 Pac. 804 ; Morvant's Succes- 69 N. W. 843. At any rate, no sion, 46 La. Ann. 301 ; Bonanza's allowance can be made in the con- Succession, 47 La. Ann. 1451 ; Beau- test proceeding, but application regard's Succession, 49 La. Ann. should be made to the court of pro- 1176; Bro^vn v. Corey. 134 Mass. bate powers in settling the estate. 249; Titlow's Estate, 163 Pa. St. 393 Wallace v. Sheldon, 56 Neb. 35. 55; 76 N. W. 418. LAW OF WILLS. ^' costs and attorney's fees where there was probable cause for contest.^ ^"^ Where the executor is a necessary party to the contest he may employ counsel to defend the will, and charge their expen- ses "^against the estate.=^^^ Where the executor is not a necessary party to the contest he can not charge the services of such coun- sel as he may see fit to employ against the estate/^^*' and wher'3 fees are allowed, the court will grant reasonable ones. Thus when the estate was worth about five thousand dollars, and the questions presented by the contest were simple, and the trial lasted six days, it was held that fees should be allowed not to exceed three hundred dollars a side, and to but one attorney on a side.^^^ When the executor defends the will in his ofiicial capacity unsuccessfully, he is usually not personally responsible for the attorney's fees thus incurred.^^^ §346. Validity of agreements with reference to contest. A contract between the parties interested respectively in ob- taining and resisting the probate of a will, if made with full knowledge of the facts, and if free from misrepresentation, fraud, and deceit, is upheld by the courts as a valid contract. Thus contracts between the heirs or next of kin on the one hand, and the beneficiaries on the other, by which the heirs or next of kin acree not to contest the will, are upheld.^^^ So are similar contracts made between the testator, in his lifetime, 30-t Gorkow's Estate, 20 Wash. 39s Fenner v. McCan, 49 La. Ann. 563. 600. 395HeflFner's Succession, 49 La. 399 Boughey v. Minor (1893), P. Ann. 407; Bower's Accounts (Ohio), 18L Waller v. Marlvs, 100 Ky. 541 17 Weekly Law Bull. 80; Fitz- (a contract not to oppose probate Simmons v. Safe Deposit Co., 189 and to withdraw contest in consid- Pa. St. 514; 42 Atl. 41; Lassiter eration of the payment by the pro- V. Travis, 98 Tenn. 330; 39 S. W. ponent, if successful, of the legacy 226. which testatrix had intended to give 390 Andrews v. ^Vndrews, 7 O. S.- promisor). 148. 397 Camplwll v. McGuiggan (N". J. Prer.), 34 Atl. 383. 418 LAW OF WILLS. and his heirs or next of kin.^^^ So a contract entered into between the heirs and devisees, to distribute the estate as in cases of intestacy on consideration of abstaining from litiga- tion, is valid.^°^ So is a contract to distribute the estate accord- ing to the will without probating it;^*^^ or to set "aside an order admitting the will to probate with consent of the court, and distribute the estate without reference to the will.^*^^ And in a proceeding to probate a will it was held that a contract to sup- press the will and distribute the estate as in intestacy was a valid defense.^^'* The propriety of this view of the law is very doubtful. After the will is probated the beneficiaries m-ay contract with refer- ence to the property given them by will just as they may with reference to property acquired in any other way.^°^ If two legatees agree upon any division of their legacies between them- selves, another legatee can not be heard to object.^^^ But, to concede to the beneficiaries the right to suppress a will, us- ually a criminal act, and to refuse probate to a will which is in itself perfectly valid, by reason of a subsequent agreement be- tween the heirs and the beneficiaries, is so contrary to the policy of the law of wills that on sound principle the position seems untenable. Where the contract is made between certain of the oppos- ing claimants in fraud of other claimants, it is void."**^^ Thus an agreement between two of the heirs of testator by which one of them was to furnish the money necessary to conduct a col- lusive contest, in which B, the other, was to be plaintiff, and A one of the defendants, A to receive compensation for the loss of his legacy by being paid by B, if successful, was held *oo Garcelon's Estate, 104 Cal. 404 Stringfellow v. Early, 15 Tex. 570; Gore v. Howard, 94 Term. 577. Civ. App. 597. 401 Stringfellow v. Early, 15 Tex. Contra Finch v. Finch, 14 Ga. Civ. App. 597, citing Phillips v. 362. Phillips, 8 Watts, 195. 405 Napier v. Anderson, 95 Ga. •402 Knight V. Knight, 113 Ala. 618. 697. ^oeWilkins v. Hukill, 115 Mich. 403 L. & N. R. R. V. Sanders 594. (Ky.), 44 S. W. 644. 407 See following note. 419 LAW OF WILLS. void where the object of the agreement was to exclude a dev- isee from any share under the wilL-« It is held that where probate binds the world, the heirs and beneficiaries can not sub- mit a contest to arbitration.-*^ Where the court enters a con- sent decree setting the will aside, the parties who consented thereto can not afterwards be heard to complain of the de- cree ''' But an attorney has not, by virtue of his employment, authority to consent to a verdict without evidence to support it; and his acts do not bind any of his clients except, such as consented thereto.'*** 408 Gray v. McReynolds, 65 lo. 4" Cooch v. Cooch, 18 Ohio 146. 461; Ridenbaugh v. Yo-uig, 145 Mo. -i Jordan v. Russell, 8 Weekly 2Y4 Law Bull. 91. 409 Carpenter v. Bailey, 121 Cal. 582; GO Fac. Ifj2 420 LAW OF WILLS. CHAPTER. XVIII. PROBATE AND CONTEST OF LOST AND SPOLIATED WILLS AND FOREIGN WILLS. I— LOST AND SPOLIATED WILLS §347. Definition. The term ^'lost will" is used to denote all wills which have not been revoked bv testator, but can not be produced for ad- mission to probate.^ A totally spoliated will is a special type of lost will, which has been entirely destroyed by some one other than testator without his authority.^ §348. Effect on probate of loss or total spoliation of will. The effect of the inability of proponents to produce the will for probate is different in the different states, according to the importance which the state attaches to its production. On the one hand, the party who destroyed the will ought not to be per- mitted to gain by his wrongful act; while on the other, many 1 If the will was destroyed, torn ~ We have seen that the destruc- cancelled, and the like, by testator, tion of the will through accident, with intent to revoke it, or by some or by testator while incompetent, one by the testator duly authorized, or by some one not authorized by it is, of course, revoked, and is of testator in the manner prescribed no validity whatever. See Chapter by law, does not work a revoca- XIV, Sees. 246-252. tion. See Sec. 261. LAW OF WILLS. 421 revoked wills might be probated under a liberal admission of lost wills to probate. Accordingly the states may be divided as to their views upon this point into two classes. In states of one class, any lost will may l)e admitted to probate upon proper evi- dence of its execution and contents, and of the fact that it was not revoked by testator.^ In states of the other class only such lost wills as can be proved to have existed, in due legal form, and unrevoked after the death of testator, or his insanity, or other cause which deprived him of capacity to revoke his will, can be admitted to probate.^ An omission in the finding that the will was in existence after testator's death does not, how- ever, make such order subject to collateral attack.^ The sub- ject of probate of lost wills is the subject of very exhaustive legislation, more minute in detail than the legislation upon ordinary prol)ate matters-; and a lost will can be admitted to probate only when it comes within the provisions of the stat- ute.^ §349. The court. The statutes provide what court shall have jurisdiction to admit a lost will to probate. It is usually the court of ordi- nary probate jurisdiction.'^ In some other states courts of gene- ral equity powers have jurisdiction to entertain actions to es- tablish a lost will.* 3 Mills V. Milhvard, L. R. 15 P. in his lifetime. Hence, under no D. 20; Sullivan v. Sullivan, 114 circumstances could a lost will be Mich. 189; Coddington v. Jenner, probated where it was destroyed 57 N. J. Eq. 528; 41 Atl. 874: Gard- by testator's own act. Perry v. ner's Estate, 164 Pa. St. 420; Valen- Perry, 49 N. Y, S. R. 291; 21 N. Y. tine's Will, 93 Wis. 45; 67 N. W. Supp. 133. 12; Steinke's Will, 95 Wis. 121. 5 Converse v. Starr, 23 O. S. 491. 4 Kidder's Estate, 57 Cal. 282; e Jones v. Casler, 139 Ind. 382; Jones V. Caster, 139 Ind. 38*2; Sin- Sinclair's Will, 5 O. S. 290. Clair's Will, 5 O. S. 290; Laurence's 7 Morningstar v. Selby, 15 0. 345; Estate, 7 Ohio Dec. 246; 5 Ohio, N. Domestic, etc. Missionary Society v. P. 20; Harris v. Harris, 10 Wash. Eells, 68 Vt. 497; Valentine's Will, 555. In New York a will may be 93 Wis. 45 ; 67 N. W. 12. admitted to probate only if it was s Hall v. Allen. 31 Wis. 691;,Val- in existence at the death of testa- entinc's Will, 93 Wis. 45. tor, or was fraudulently destroyed 422 LAW OF WILLS. §350. Parties. In an action to admit a lost will to probate the beneficiaries under the will, and those who would take if such will were not admitted to probate, are parties.^ §351. Notice! Notice is almost always specifically provided for in cases of probate of lost wills, even where notice may be dispensed with in ordinary wills.^*^ If the parties interested do not reside in the county, notice must be given by publication, notice to the administrator not being sufiicient.^^ §352. Petition. The statute and the peculiarities of the case make a peti- tion in action to establish a lost will far more necessary than in an ordinary probate proceeding, where the will can be of- fered and an oral motion to admit to probate can be made. Ac- cordingly it is usually required that a lost will be admitted to probate only on petition,^ ^ and this petition must allege all necessary facts to entitle the will to be admitted to probate as a lost will. Thus, where it is required that the will, in order to be admitted to probate, shall be in existence after the death of testator, the petition must allege that fact,^^ and, unless the statute requires it, an answer need not be verified,^'* §353. Jury. The rules applicable to ordinary probate generally control here, unless expressly altered by statute. Thus, .unless ex- 9 Taylor v. Bennett, 1 Ohio C. C. i3 Jones v. Casler, 1,39 Ind. 382 95; Valentine's Will, 93 Wis. 45; 67 (where an allegation that the will N. W. 12. was destroyed after the death of 10 Goods of Pearson (1896), P. testator shows this with sufficient 289. certainty) : Harris v. Harris, 10 11 Baugarth v. Miller, 26 O. S. 541. Wash. 555 (where an allegation that 12 Wright V. Fultz, 138 Ind. 594; "deceased at the time of his death Jones V. Casler, 139 Ind. 382; Har- left a will" is held sufficient). ris V. Harris. 10 Wash. 555. i* Wright v. Fultz, 138 Ind. 594. 423 LAW OF -WILLS. pressly provided by statute, no right to a jury trial exists in an action to admit a lost will to probate - and the court need no duplicate instructions to the jury. Thus, after charging that the jury may consider the declarations of testator only on one point, it is not error to refuse to charge that such declarations can not be considered on another point.^^ §354. Contest. Where the statute provides a proceeding like contest as a di- rect attack upon an order admitting a lost will to probate such method is exclusive, and error will not lie to the order of pro- bate ^^ Upon contest of a lost or spoliated will, it is lor the jury to determine what the provisions of the will, as legally ex- ecuted by testator, were.^« The issue in such cases is not re^- stricted to the validity of the will as admitted to probate. However, a verdict and judgment will not be set aside where the evidence is insufficient as to some property of small value, but clear as to the bulk of the property. II— FOREIGN WILLS. §355. Definition of foreign will. A foreign will, in the sense that the term is used in the law of probate, is a will executed in a state or country by a testator there domiciled, admitted to probate there upon the death of such testator, and subsequently offered for probate or registry in another state. The question of what law controls the valid- ity of such will is discussed elsewhere.^^ Accordingly, where a will is admitted to probate in a state in which testator was not domiciled at his death, but in which he left property, a sub- sequent probate in the jurisdiction in which the testator was domiciled at his death, must be an original probate of the will 15 Wright V. Fultz, 138 Ind. 594. 437; Holman v. Riddle, 8 0S. 16 McDonald v. McDonald, 142 384 ; Brundige v. Benton, 17 Weekly j^^ gg Law Bull. (Ohio), 243. __ ', , T £•<> r> c i9TTiivnes v. Havnes, 33 O. S. iTlIollrah V. Lasance, 63 0. S. is llaynes v. Havnes, 58 598. 18 Behrens v. Behrens, 47 0. S. ^o Banning v. Banning, 12 O. S. 323; Havnes v. Havnes 33, O. S. 437. 598; Banning v. Banning, 12 O. S. 2^ See Chapter IV. 424 LAW OF WILLS. as a domestic will, and not as a foreign will."- In this chapter it is assumed that the will is valid as to its form in the juris- diction in which testator was not domiciled ; and that the only question for discussion is as to the necessity, method, and ef- fect of probating it in such jurisdiction. §356. Nature of probate of foreign will. In some states original probate of a foreign will is allowed, though such probate can only affect the property of testator within the state where the will is admitted to probate.^^ The usual practice, however, is to provide that after the will is ad- mitted to probate in the state of testator's domicile it be pro- pounded in any other state in which testator has property.-^ The court having jurisdiction to admit such will to probate is the court within whose territorial jurisdiction such property of testator is situated,^^ and it is error to admit the will to pro- bate unless evidence is offered to show that there is property of testator to administer within the territorial jurisdiction of the court before which the will is offered for probate.-*^ The stat- utes for admitting a domestic will to probate, and for the effect of the order of probate, are generally taken as analogies in cases of foreign wills where applicable.^''' However, the legis- lature often provides different statutes for the two classes of wills. When this is the case it is very dangerous to assume that the statute for domestic wills can have any effect in case of for- eign wills.28 Further, in details of procedure a distinction is 22 Tar bell V. Walton (Vt.) (1899), 26 Southard's Will, 48 Minn. ,37. 45 Atl. 748. 27Whalen v. Nesbet, 95 Ky. 464. 23 Walton V. Hall, 66 Vt. 455. 28 Barr v. Chapman (Ohio C. 24 Calloway v. Cooley, 50 Kan. P.) ; 30 W. L. B. 264 (right of ap- 743; Clow V. Plummer, 85 Mich. peal from refusal to admit to pro- 550 ; Mower v. Verplanke, 101 Mich. bate exists in domestic, but not in 209; 105 Mich. 398 ; Putnam v. Pit- foreign, wills) : Hardin v. Jamison, ney, 45 Minn. 242: Southard's Will. 60 (Minn.) 112; 61 N. W. 1018 (ex- 48 Minn. 37; Babcock v. Collins, ecutor named in domestic will has 60 Minn. 73; 61 N. W. 1020. first right to be appointed, but not 25 Putnam v. Pitney, 45 Minn. where named in foreign will ) . 242; Southard's Estate, 48 Minn. 37. LAW OF WILLS. 425 often made in the states of the United States between a for- eign will admitted to probate in a sister state and a foreigii will from a country other than the United States.^^ Upon the admission of the foreign will to probate, even if delayed until after a sale made in pursuance of a power conferred by will, the probate in such foreign state will relate back to testator's death and perfect such sale.^" §357. Parties and procedure. Any j)erson having a legal interest under the foreign will may apply for its admission to probate.^^ An allegation in the petition that proponent was "interested as a subsequent pur- chaser of the estate of the deceased" was held sufficient to show a legal interest.^^ Unless the statute requires a petition for admitting such will to probate, none is necessary.^^ iN^otice is usually required to be given by publication, and as the will is offered for probate where testator's property is situate, but where testator was not domiciled, the proceeding is even more in the nature of a proceeding m rem, than the probate of a domestic will.^'* xVt the hearing in a proceeding to admit a foreign will to probate, the certified copy of the will and of the order admitting it to probate in the foreign jurisdiction are necessary to be offered in evidence,^^ and the court has no jurisdiction to admit the will to probate unless the certified transcript of the order of probate in the foreign court is pro- duced.^*^ The certified copy of the will and the transcript of the order of probate in the f oreigii state raise a presumption that all necessary legal formalities at such probate were complied 29 Carpenter v. Denoon, 29 O. S. tion M'as required only in case of 379. wills made out of the United States. . 30 Babcock v. Collins, 60 Minn. Carpenter v. Denoon, 29 O. S. 379. 73; 61 N. W. 1020. The question is entirely one of stat- 31 Mower v. Verplanke, 101 Mich. iitory requirement. 209 : 105 Mich. 398. ss Mower v. Verplanke, 101 Mich. 32 Mower V. Verplanke, 101 Mich. 209; Clow v. Plummer, 8.5 Mich. 209 ; 105 Mich. 398. - 550. 33 Evansville Ice, etc. Company 36 Mower v. Verplanke, 101 Mich. V. Winsor, 148 Ind. 682. 209: Clow v. Plummer, 85 Mich. 34 But in Ohio notice by publica- 550. 426 LAW OF WILLS. with,^^ and such evidence is conclusive of the validity of the foreign probate, and is not subject to collateral attack,^® unless such transcript shows on its face that the will was not properly admitted to probate, in which case it is held that the order of the foreign court is not conclusive.^ ^ Where both parties pro- ceed on the theory that real estate of testator is in the juris- diction of the court, the omission to introduce formal proof of that fact is not reversible error.^*^ Admission to probate and record of a foreign will in one county passes title to all the real estate in that state, unless the statute specifically requires such will to be recorded in each county where the land is situate.'*^ • It has been held error to admit the copy of the will to probate, as the order should show that the original will was admitted.^'-^ The rules applicable to probate of domestic wills are not always made applicable by statute to the probate of foreign wills. Thus even where probate of a domestic will is an ex parte proceeding, no resistance being allowed, the probate of a foreign will may give opportunity for contest,^^ and error, and not appeal, is the remedy for a refusal to admit the will to probate ;^^ or the will may be repropounded on new evidence.'*^ When a for- eign will is admitted to probate it has the same standing in la^v as a domestic will.'*® 37 Newman v. Steel Company, 80 eous, such decree could not be at- Fed. 228; Moody v. Johnston, 112 tacked collaterally. N. Car. 798. 43 Barr's Will, 30 Weekly Law 38 Dickey v. Vann, 81 Ala. 425; Bull. 386; Barr v. Closterman, 2 Calloway v. Cooley, 50 Kan. 743; Ohio C. C. 387. 32 P. 372; Babcock v. Collins, 60 4* Barr v. Closterman, 2 Ohio C. Minn. 73; 61 N. W. 1020. C. 387. 39 Currell v. Villars, 72 Fed. 330 ; 45 Barr v. Closterman, 3 Ohio C. Nelson v. Potter, 50 N. J. L. 324; C. 441. The court may revoke an Barr v. Closterman, 2 Ohio, C. C. order admitting a foreign will to 387. probate where such order is ob- 40 Barr v, Closterman, 2 Ohio, C. tained by fraud. Barr v. Closter- C. 387. man, 7 Ohio C. C. 371. 41 Carpenter v. Denoon, 29 O. S. 46 Hoysradt v. Tionesta Gas Com- 379. pany, 194 Pa. St. 251; 45 Atl. 42 St. Joseph's Convent of Mercy 62. (Hence a power of sale given V. Garner, 53 S. W. 298 ; 66 Ark. by such will is effective to pass a 623. However, being merely erron- valid legal title.) LAW OF ' WILLS. ^^ §358. Registry of foreign will. Ill other states where the foreign will af=fects the title to real property situate within such state, it is merely required that the foreign will shall be recorded in the county where the land ig situate— usually in the recorder's office^^— and Unless the for- eign will is thus recorded, it can not affect the title to such realty.^*^ But such will may be recorded even after litigation upon the title to the realty has been taken to the state supreme court, and when recorded will date back to testator's death.^^ 47 Wells, Fareo & Co. v. Walsh, *" Wells, Fargo & Co. v. Walsh, 88 Wis. 534 ^^- ^'^^^^ ^^'^' ^*^ Carpenter v. De- 48 Wells, Fargo & Co. v. Walsh, noon, 29 O. S. 379. 87 Wis. 67. 428 LAW OF WILLS. CHAPTER XIX. EVIUENCe IN PROBaTE AND CONTES" I— COMPETENCY OF WITNESSES AND GENERAL PRIN- CIPLES CONTROLLING ADMISSIBILITY OF EVIDENCE. §359. Scope of discussion. The law of evidence in probate and contest is connected with the substantive law of wills even more closely than the law of evidence upon most topics is connected with the correspond- ing substantive law. This is true especially in the topics of mental capacity and undue influence. On account of this importance arising out of the close and vital connection be- tween the substantive law of wills and the law of evidence, i discussion of the latter will be undertaken here ; not with the purpose of investigating the law of evidence in general, but only of presenting those questions which from their nature most frequently arise, and which serve to explain and illustrate the doctrines of the substantive law. §360. Common law rule as to competency. As we have seen, the common law absolutely excluded the tes- timony of certain classes of persons from the consideration of the jury. The reason and extent of the rule is thus stated by LAW OF WILLS. 429 the standard American authority on Evidence: "It is obvi- ously impossible that any test of credibility can be infallible. All that can be done is to approximate to such a degree of cer- tainty as will ordinarily meet the justice of the case. The question is not whether any rule of exclusion may not sometimes shut out credible testimony, but whether it is expedient that there should be any rule of exclusion at all. If the purposes of justice require that the decision of causes should not be em- barrassed by statements generally found to be deceptive, or totally false, there must be some rule designating the class of evidence to be excluded ; and in this case, as in determining the ages of discretion, and of majority, and in deciding as to the liability of the wife for crimes committed in company with the husband, and in numerous other instances, the common law has merely followed the common experience of mankind. It rejects the testimony (1) of parties; (2) of persons deficient in understanding; (3) of persons insensible to the obliga- tions of an oath; and (-4) of persons whose pecuniary interest is directly involved in the matter at issue ; not because they may not sometimes state the truth, but because it would be ordinarily unsafe to rely upon their testimony."^ Under the rules of coverture neither husband nor wife could testify when the other was a party, nor when the pecuniary interest of the other was directly involved.^ And the principle of excluding parties as well as that of excluding those who were directly interested financially applied to exclude an executor under the will, as he was a party to the record, and liable in the first instance for costs.^ At common law one convicted of certain infamous crimes was thereby rendered incompetent as a witness. But where the witness had been convicted of perjury, and under the local statute was incompetent to testify, it was held that the pardon of the executive given to one who wrote and signed a will for testator at his request, before such pardon, rendered him a competent Avitness to the will 1 4 1 Greenleaf on Evidence, Vol. I, 3 Greenleaf on Evidence, Vol. I, Sec. 326. Sec. .347. 2 Greenleaf, Vol. I, Sees. 334, * Dielil v. Rogers, 169 Pa. St. 335. 310: 47 Am. St. Rep. 908. 430 LAW OF WILLS. §361. Modern statutory rules. — Communications with aecedent held inadmissible. The rules of common law, as to competency of witnesses, will not be discussed in detail as they have been greatly modi- fied or abolished by statute in most states. Persons deficient in understanding, such as the insane, the young, and the like, are not allowed to testify. The other classes of incompetents at common law are, except in some specified cases, allowed to testify, their former disqualification possibly affecting their credibility but not their competency.^ An exceptional case in which parties are not allowed to tes- tify as to certain facts, in many states, exists where among other capacities the adversary party sues or defends as executor, ad- ministrator, heir, devisee or legatee of a deceased person. This case, of course, always arises in a contest of a will. The ad- missibility of the evidence of the heirs, devisees, and the like, depends upon the terms of the statute already referred to. If no exception is made in favor of will contests, no person who is a party to the contest can testify as to facts occurring before the death of the alleged testator. Under these statutes heirs and devisees are, of course^ in- competent,*^^' so is the executor,'^ and by statute in many states so is husband or wife of a party,^ as is the husband of a residuary legatee.^ Under this rule the question is not who are adverse parties on the record, but who are adverse in interest. Thus, in a suit to establish a will, the executor under such will was made a co-defendant with the disinherited heirs, and was then 5 See Sees. 196, 198. 9 Valentine's Will, 93 Wis. 45 6 Hopkins v. Wheeler (R. I.) (held incompetent to testify that (1900), 45 Atl. 551; Perkin's Es- on the day before the death of tate, 109 lo. 216; 80 N. W. 335; testatrix the will was in her posses- Furenes v. Eide, 109 lo. 511; 80 sion). Where one of the parties N. W. 539. has died, pending contest, an ad- And see Allison's Est. 104 lo. versary party can not testify to ad- 130. missions made by decedent against 7 Bardell v. Brady, 172 111. 420. his interest. Manogue v. Herrell, 13 8 Smith V. Smith, 168 111. 488; App. D. C. 455. Bevelot v. Lestrade, 153 111. 625. LAW or WILLS. ^■'■ called as witness by plaintiffs. His co-defendants objected, and it was held that he was incompetent.^ « An executor who has resigned is a competent witness under this rule, even where his account is unsettled and his fees unpaid.^^ Where the surviving attesting witness testifies to the facts of execution, without contradiction, it is not reversible error to allow a legatee to testify to the same facts.^^ Even where the statute forbids testimony of a partj as to any transaction with deceased, without exception in favor of wills, a son, who is also a devisee, may testify to finding the will among the valuable papers of testator, where this is material. This is not a transaction with the deceased.^ ^ In Kentucky the statute forlnds evidence of transactions with a decedent "to the extent of affecting one who is living." Under this statute a devisee may testify to the facts of execu- tion.^^ §362. Communications with decedent admissible in will con- test. In many other states an express statutory provision al- lows parties to testify in a suit involving the validity of a will, even where the adversary party is heir, devisee, executor, and the like. Under such statute the competency of parties in interest is clearly recognized.^ ^ Thus, in contest the execu- loBardell v. Brady, 172 111. 420. Mich. 411; Wilson's Will, 103 N. 11 Smith V. Smith, 168 111. 488. Y. 374; Children's Aid Society v. 12 Hopkins v. Wheeler, R. I. Loveridge, 70 N. Y. 387 ; Rugg v. (1900), 45 Atl. 551. ^^gg, 83 N. Y. 592; Wilson's Will, 13 Cox V. Lumber Co. 124 N. Car. 103 N. Y. 374 ; Bradshaw v. Rob- 78. erts (Tex. Civ. App.) 52 S. W. 14 Flood V. Pragoff, 79 Ky. 607 ; 574 ; Richardson v. Richardson, 35 Hardin V. Taylor, 78 Ky. 593. Vt. 238; Buckman's Will, 64 Vt. 15 Henry v. Hall, 106 Ala. 84; 313; Foster v. DicKerson, 64 Vt. Spiegelhalter's Will, 1 Penn. (Del.) 233; Manley v. Staples, 65 Vt. 370; 5: Denning v. Butcher, 91 lo. 425; Martin v. McAdams, 87 Tex. 225; King V. King, — Ky. — ; 42 S. 27 S. W. 255; Hays v. Ernest, 32 W. 347; Stewart v. Harriman, 56 Fla. 18; 13 So. 451. N. H. 25; Lawyer v. Smith, 8 432 LAW OF WILLS. tor may testify j^*^ and so may his wife.^^ The devisees may testify in contest under such statutes/^ and so may the hiis- l)and or wife of a legatee or devisee/'-^ §363. Competency of subscribing witnesses. The testimony of a hiwful subscribing witness can not bo rejected on account of the incompetency of such witness.^'^ Accordin2:ly a subscribing witness who was competent at the time of execution may testify concerning the facts of execu- tion even where by reason of facts subsequently arising he has become incompetent through interest, or because the ad- versary party is an executor, heir or the like.^^ A probate jurlge may act as subscribing witness to a will,-^ but he can not testify in a j)roceeding before himself, against objection.-^ §364. Confidential communications to one not a subscribing' witness. Under modem statutes, which alter the common law rules of competency, it is generally provided that an attorney or a physician can not testify as to confidential communications made to them in their professional capacities, by a client or patient, without the consent of such client or patient. This exception often causes complications where an attending phy- sician or an attorney is offered as a witness to the facts of ex- ecution or tlie capacity of testator. A physician who is not a subscribing witness can not be leBettison v. Bromley, 12 East. is Holt's Will, 56 Minn. 33 ; Gam- 250; Hays v. Ernest, 32 Fla. 18; ble v. Butchee, 87 Tex. 643; 30 Millay v. Wiley, 46 Me. 230; Kit- - S. W. 861. tredge v. Hadgman, 67 N. H. 254 ; 20 Entwistle v. Meikle, 180 111. 9. Jordan's Estate, 161 Pa. St. 393. 21 Sullivan's Will, 114 Mich. 17 Lyon's Will, 96 Wis. 339. 189; Holt's Will, 56 Minn. 33; 22 18 Hays V. Ernest, 32 Fla. 18; L. R. A. 481; Lyon's Will, 96 Wis. Goldthorp's Estate, 94 To. 336; Cox 339. V. Lumber Co. 124 N. Car. 78; 22 See Sec. 199. Franklin v. Franklin, 90 Tenn. 44; 23 Estes v. Bridgforth, 114 Ala. Gamble v. Buchtee, 87 Tex. 643; 221. Martin v. McAdams, 87 Tex. 225; 27 S. W. 255. LAW OF WILLS. ^^" called upon to testify to facts learned by him in kis profes- sional capacity.'^^ It has been held that an attorney of the testator may testify as to the facts of execution, that he in- corporated testator's instructions into the will as executed, and that testator was sane.^^ And testator's attorney has been allowed to testify that a compromise agreement, by which tes- tator was to support a child which he claimed was not his o%vn, was not a revocation of a will disinheriting such child.^^ It was held proper to require an attorney to testify to con- versations had between himself and decedent, which were con- fidential, but not professional, as a basis for inquiring into his opinion of the mental condition of decedent.^^ Upon the issue as to the destruction of a will during tes- tator's lifetime, an attorney is not competent to testify that contestant had consulted him during testator's life in a pro- fessional capacity as to the effect of such destruction of such will.28 §365. Confidential comiminications to a subscribing witness. Where the attorney who drew the will is an attesting wit- ness, it is held that he may testify even to such facts of ex- ecution as were communicated to him in his professional capa- city by testator.2^ This rule rests on the theory that by voluntarily calliTig his attorney as an attesting witness, the testator impliedly con- sents that the attorney may testify to any confidential com- munications made to him with reference to the execution of the will. In Louisiana the notary may be called as a witness to^ im- peach his formal certificate of his acts, attached to the will.=^" 24Gurley v. Peck, 135 Ind. 440. 28 Melntosli v. Moore (Tex. Civ. 25 O'Brien v. Spalding, 102 Ga. App.^ 1899, 53 S. W. 611. 490: Harp v. Parr. 168 111. 459. 29 MeMaster v. Scriven, 85 Wis. 16 35. 26 pade'iford's Estate, 190 Pa. St. 162. 30 Solari v. Barras, 45 La. Ann. 27 Turner's Appeal, 72 Conn. 305. 1128. 434 LAW OF WILLS. An attorney who drew decedent's will, and was a subscrib- ing witness thereto, is competent to testify to its contents.^ ^ §366. Evidence of subscribing witnesses. In some jurisdictions great weight is given to the evidence of the subscribing witnesses.^^ In other jurisdictions it is held that the evidence of a subscribing witness is of no greater weight than that of other persons having equal opportunity to know the facts,^^ and it is error to charge that their evidence is paramount.^^ Unless specially required by statute, it is not necessary on contest to call the attesting witnesses to tes- tify at all.^^ Under the statutes regiilating the probate of Avills it is often required that all of the subscribing witnesses who are in the jurisdiction should be called as witnesses.^® They need not all, however, be examined at the outset before the will is offered in evidence.^'^ Even where it is error to admit the will to probate in the absence of any of the subscribing wit- nesses, the probate can not be attacked collaterally because less than all were called.'"*' And in some jurisdictions it is specifically provided that a will may be proved by the tes- timony of one subscribing witness alone,^^ though even in such jurisdictions it is held, as to facts of execution, that 31 Kern v. Kern, 154 Ind. 29; left undecided in Hobart v. Cook, 55 N. E. 1004. (The reason here 167 Mass. 55. suggested is that the rule forbid- 36 Howes v. Colburn, 165 Mass. ding an attorney to testify applies 385 : Hobart v. Cook, 167 Mass. 55. only during the client's lifetime.) 37 Howes v. Colburn. 165 Mass. 32 Ball V. Kane, 1 Penn. (Del.), 385; Morton v. Heidorn, 135 Mo. 90. 608 ; Crenshaw v. Johnson, 120 X. 33 Eurney v. Torrey, 100 Ala. 157 ; Car. 270. Crandall's Appeal, 63 Conn. 365. 38 Brinkley v. Sanford, 99 Ga. 3-i Higinbotham v. Higinbotham, 130; 25 S. E. 32; Mosier v. Har- 106 Ala. 314. (Issue of undue in- mon, 29 O. S. 220. fluence and insanity. ) McTaggart v. 39 /^ re Page, 118 111. 576; Thompson 14 Pa. St. 149. (Issue of Welch v. Welch, 9 Rich. (S. Car.) insanity.) 133: Stephenson v. Stephenson, Tex. 35 Harp V. Parr, 168 111. 459: In- Civ. App., 25 S. W. 649; Lambert gall's Will, 148 111. 287: Rigg v. v. Cooper's, 29 Graft. (Va.), 61; Wilton, 13 111. 15. This point was Thornton v. Thornton, 39 Vt. 122. LAW OF WILLS. 435 when the subscribing witness who is summoned can not tes- tify to the necessary facts, it is necessary to call all the sub- scribing witnesses or to account for their absence satisfactorily before calling other witnesses.^^ On the issue of sanity it is not necessary in contest pro- ceedings to call all the subscribing witnesses.^^ On contest proof of execution is not limited to subscribing witnesses. Any competent witness who has knowledge of the facts may testify as to what occurred at the execution of the will.^^ The fact that one of the subscribing witnesses omitted to testify to the mental capacity of testatrix does not prevent the will from being admitted in evidence in probate proceed- ings,^^ and it is error to exclude others than subscribing wit- nesses who have opportunity of knowing the capacity of tes- tator,'*"* or the facts of the execution of the will."*^ It is not error, when the execution of the will is not in issue, to admit the will in evidence and afterwards call the subscribing witnesses.^^ §367. Record of evidence given at probate. In some states, by statute, proponent may introduce the copy of the testimony of the subscribing witnesses adduced at probate in common form, instead of offering the witnesses themselves.'*'^ In such states the use of the original affidavit of subscribing witnesses, instead of a certified copy of such affidavit, is, if erroneous at all, not such error as can be raised in the appellate court where not raised on trial.'** In other 40 Elwell V. Convention, 76 Tex. subscribing witness testified to the 514. capacity of testator.) 41 Kaufman v. Caughman, 49 S. 4* Whitelaw v. Sims, 90 Va. 588. Car. 159. 45 Trembly v. Trembly, 11 Weekly 42 Robinson v. Brewster, 140 111. Law Bull. (Sup.), 50. 649; Hobart V. Hobart, 154 111. 610; 46 Hobart v. Cook, 167 Mass. 55. Morton v. Heidorn, 135 Mo. 608; 47 Meek s v. Lofley, 99 Ga. 170; Mays V. Mays, 114 Mo. 536; Hesterberg v. Clark, 166 111. 241 ; Holmes v. Holloman, 12 Mo. 535. Slingloff v. Bruner, 174 111. 561, 43 Kaufman v. Caughman, 49 S. 48 Harp v. Parr, 168 111. 459. Car. 159. (In this case the otlier 486 LAW OF WILLS. states the will must be proved de novo, and the record of the l^roof on probate is inadmissible.^^ On contest, evidence may be taken by deposition in con- formity to the general statutes on the subject. 50 §368. Admissibility of will. The will is always admissible after due proof of execution, and should be introduced in evidence. It is provided in many states that a certified copy of the will may be introduced in evidence to make a prima facie case. In such case the orig- inal will is also admissible, and it is error to compel election between the original will and the authenticated copy.^^ Unless the statute provides that a certified copy of the will may be introduced in evidence, the original will should be of- fered in evidence, and a certified copy thereof is inadmissi- ble.^^ But where it is not claimed that the will is a forgery, and contestant had the original, it is harmless error to allow proponent to introduce a certified copy.^^ And where the petition set out the will, and alleged probate, it was held not to be reversible error to refuse to allow defendant to introduce the will in evidence.^"* In ]\Iaryland the original will must remain in the custody of the register, and be produced at trial in obedience to a suh- pena duces tecum. It is, therefore, error to order the original will to be transmitted to the probate court.^^ Under some systems of foreign law the original will must be held by the ofiiccr before whom it was executed. In such case, if the will is offered for original probate in the juris- diction of the domicile of such testator, it .has been held proper to permit a copy to be offered in evidence and admitted to probate.^^ 49 Thomas's Will, 111 IST. Car. 54 Kosteleckey v. Scherliart, 99 409. lo. 120; 68 N. W. 591. 50 Schnee v. Schnee, 61 Kan. 643; 55 Connelly v. Beall, 77 Md. 116. 60 Pac. 738. se Goods of Lemme (1892), P. 51 Pratt V. Hargreaves, 75 Miss. 89. (In this ease, under the Lim- 897. jted Probate allowed in English 52 Craig V. Southard, 148 111. 37. law, the probate was limited until 53 Nicewander v. Nioewander, 151 the original might be produced.) 111. 156: 37 N. E. 698. 437 LAW OF WILLS. ^^' §369. Definition of burden of proof. The term ''burden of proofs' is used of every issue raised in probate and contest, whether execution, mental capacity, undue influence or revocation is involved. The meaning of the term is, therefore, properly discussed at the outset. "Bur- den of proof" means the necessity of maintaining the affirm- ative side of the issue by a preponderance of the evidence, that is, by offering more admissible evidence, estimated by its impression on the mind of the tribunal which decides ques- tions of fact, than the adversary adduces. If the evidence is evenly balanced, the party upon whom the burden of proof rests must fail. It is in this sense that this phrase is here used. Another meaning given to "burden of proof," by good authority, is the necessity of establishing one's side of the issue prima facie in the first instance. Ordinarily there is no inconsistency between these two defi- nitions. The party who is bound to establish his side of the issue prima facie is also bound to maintain the issue on his part by a preponderance of the evidence. But in some classes of cases special statutes direct specifically which party shall open the case, how far he shall proceed, and what evidence on his part shall make a prima facie case for him. Such statutes do not change the pre-existing rules as to which party must establish the issue on his part by a preponderance of the evidence, unless they expressly so state. There is no impli- cation as to the preponderance of the evidence to be drawn from a statute which merely directs the conduct of the trial. In cases where such statutes control, it is, therefore, pos- sible for one side to be obliged to open and to make out a prima facie case, while the other side is bound to maintain the issue on its part by a preponderance of evidence. In manv states proceedings for probate and contest of wills are controlled by such statutes as have been described. In discussing upon which side the burden of proof rests in cases, the expression "burden of proof" will, as has already been stated, be used in the sense of the necessity of maintaining the issue by a preponderance of evidence. 488 LAW OF WILLS. It is sometimes said not only in cases involving the validity of wills, but in cases of all kinds, that the burden of proof shifts from side to side during the trial of the case. With all defer- ence to the authorities which use this expression, it must be either an erroneous statement of what does actually happen, or neither of the definitions of burden of proof is the correct one. The issues determine which side is obliged to maintain the issue by a preponderance of the evidence.^ ''^ The general rules of procedure, or the special statutes which apply in the particular case, determine which side must open and make out a prima facie case. On neither of these points can there be any change during the progress of the trial. When it is said that the burden of proof shifts, it is evi- dently another way of saying that now one side, and now the other has a preponderance of the evidence adduced up to that time. As the phrase "burden of proof" has two meanings al- ready, which are to some extent contradictory, it is inadvis- able to add a third meaning which is inconsistent with both of the meanings already in use, and which is synonomous with the expression "preponderance of evidence" — a phrase which has a technical legal meaning. Our legal nomenclature is defective enough arid possesses enough names with two or more meanings, and enough synonyms for the same legal idea, without adding to the ex- isting confusion by mixing "burden of proof" and "preponder- ance of evidence" further. As a rule, however, the distinction between preponderance of evidence and the burden of proof is a technical one. The meaning of the court will usually appear, whichever mode of 57 "Generally speaking the burden upon the party asserting the affirm- of proof in the sense of the duty ative of the issue, and unless he of producing evidence passes from meets this obligation upon the whole party to party as the case pro- case, he fails. This burden of proof gresses, while the burden of proof, never shifts during the course of meaning the obligation to estab- a trial, but remains with him to lish the claim by a preponderance the end." Egbers v. Egbers, 177 of the evidence, rests throughout 111. 82. LAW OF WILLS. 439 expression is used. It is, therefore, generally not reversible error to tell the jury that the burden of proof shifts.^® II— EVIDENCE OF EXECUTION. §370. Burden of proof. The burden of proof of the execution of a will in legal form is upon the parties propounding such will for probate, to 2:)rove each fact necessary to a valid execution. ^^ This is especially true where there is no attestation clause.^*^ So under the English practice Avhere the attestation clause is insufficient, the will can not be probated informally by the affidavit of the executor, but the witnesses must attend and test if y.^^ Where the law imposes the burden of proof upon pro- ponents on certain issues, and requires contestants to specify the points upon which tliey intend to rely in showing tliat the purported will is not the last will and testament of testator, the burden is not removed from proponents by failure of con- testants to attack the will upon the issues upon which pro- ponents have the burden of proof.*'- But if contestants prove execution as part of their case, proponents need not offer evi- dence on that point. •'^ However, even if contestants express- ly admit execution, the subscribing witnesses may be called to testify as to execution.^"* This burden of proof is the duty of establishing the facts necessary to the validity of the will by a preponderance of 58 Slingloff V. Bruner, 174 111. Kennedy v. Upshaw, 66 Tex. 442; 561. Roberts v. Welch, 46 Vt. 164. 50 Overby V. Gordon, 13 App. D.C. so Swain v. Edmunds, 54 N. J. 392: Smith v. Henline, 174 111. 184; Eq. 438; 53 N. J. Eq. 142. Barlow v. Waters, — Ky. — ; 28 ei /^ re Sweet (1891), P. 400. S. W. 785; McFadin v. Catron, 120 62 Livingston's Appeal, 63 Conn. Mo. 252; Gordon v. Burris, 141 68; 26 Atl. 470. Mo. 602; Murry v. Hennessy, 48 os Hesterberg v. Clark, 166 III. Neb. 608; Seebrock v. Fedawa, ?0 241. Neb. 424; Swain v. Edmunds, 54 e* Commonwealth v. McCarthy, N. .J. Eq. 438; 53 N. J. Eq. 142; 119 Mass. 354. Thomas's Will, 111 N. Car. 409; 440 LAW OF WILLS. evidence. Accordingly it is error to charge the jury that if there is a doubt in their minds as to the validity of the will they must find against the will.*^^ Where the will is claimed b} contestants to be a forgery, it is unquestionably not necessary to establish the criminal act in the proceeding in contest beyond a reasonable doubt.®*^ It is sometimes said that the burden of proof may be increased by circumstances, as where a testator was accustomed to write his name in full, and after his death a will was offered for probate signed by a mark and witnessed by two relatives of the beneficiaries.^^ In other jurisdictions this same idea would probably be expressed by saying that .evidence which on iU face suggested fraud would not, unsupported, amount to a pre- ponderance in favor of proponents. The case given is rather one of failure of evidence than of increase in burden of proof. §371. Presumption where signatures of testator and subscrib- ing witnesses are duly proved. In their duty of establishing the facts essential to the validity of the will by a preponderance of the evidence, pro- ponents are, however, not obliged in all cases to prove each fact by direct evidence ; but they may rely upon presmnp- tions. There is, at the outset, no presumption that the al- leged testator executed the will in question or any will. But "when a paper propounded as a will is sho\^^l to have been signed by the alleged testator and the requisite number of witnesses, in the absence of any satisfactory evidence to the contrary the presumption is that all the formalities have been complied with." '^^ This presumption, as has been said before, is especially strong where the attestation clause is perfect, and recites the performance of all the facts necessary to the validity of the 65 Brown v. Walker, — Miss. — ; 67 Donnelly v. Broughton (1801), 11 So. 724. App. Cas. 435. 66 McDonald v. McDonald, 142 68 [n re Brock, 37 S. Car. 348; Ind. 55. 16 S. E. 38. 441 LAW OF WILLS. will«^ although the presence of an attestation clause does not 'dispense with direct evidence of the facts of execution where this is availableJ^ But where the will recites that certain acts were done, and omits certain essential facts, there is no presumption that these omitted facts were done.^^ §372. Presumption where subscribing witness forgets facts of execution. It is not necessary to interrogate each subscribing witness upon all of the requisite elements of the will. It is sufficient where all are called, if their evidence put together establishes the requisite facts.'^^ In view of the principles already laid down it is evident that the forgetfulness of the accessible subscribing witness, as to certain necessary facts of execution, does not avoid the prima facie case made out by proof of the genuineness of the signatures of testator and the subscribing witnesses.^=^ So, where the subscribing witnesses identify their signatures, but have no recollection of having attested the instrument, or of the circumstances of execution, the presumption that it was properly executed will uphold it in the absence of clear and satisfactory proof to the contrary.^'^ Thus, where the accessi- 69Hobart V. Hobart, 154 111. 610, 73 Tyler's Estate, 121 Cal. 405; affirming 53 111. App. 133; Farley 53 Pac. 928; Gillis v. Gillis, 96 Ga. V Farley, 50 N. J. Eq. 434; Tap- 1; Canatsey v. Canatsey, 130 111. pen V. Davidson, 12 C. E. Gr. 459; 397; Slingloff v. Bruner, 174 111. Barnes V. Barnes, 66 Me. 286; Car- 561; Hobart v. Hobart, 1.54 111. penter v. Denoon, 29 O. S. 379. 610; Nickerson v. Buck, 12 Gush. ToEaleigh, etc., Rv. Co. v. Glen- (Mass.), 3.32; In re Kellum, 52 N. don, etc., Co., 113^ K Car. 241. Y. 517 ; /n re Hunt. 110 N. Y. 2/8; (Thus in a foreign will either the Luper v. Werts, 19 Ore. 122; hul- foreign certificate of probate, or livan's Will, 114 Mich. 189; Abbot the evidence of the subscribing wit- v. Abbot, 41 Mich. 540; Gable v. nesses was held necessary to estab- Eauch, 50 S. Car. 95; 2/ S. K lish the validity of the will.) 555; Welch v. Welch, 9 Rich. (S 71 Swain V. Edmunds, 54 N. J. Car.), 133; Will of O'Hagan, /3 Eq. 438 ; 53 N. J. Eq. 142. - Wis. 78. 72 Welch V. Welch, 9 Rich. (S. 74 Will of O'Hagan, 73 Wis. 78; Car.), 133; Kaufman v. Caughman, . In re Hunt, 110 N. Y. 2^8. 49 S. Car. 159. 442 LAW OF WILLS. ble subscribing witness testiiied that she signed as witness in the presence of testator and at his request, but could not re- member that she saw the signature of testator, it was held to make out a prima facie case for the validity of the will."^ Where one of the subscribing witnesses did not remember seeing the signature of testatrix upon the will when he signed, but did remember that he signed below the other witness, and the other witness testified that he was requested by testatrix to sign below her signature, and that there was a signature to the will before he signed, it was held error to take the case from the juryJ® §373. Presumption where subscribing witness is beyond the juris- diction of court. If one or more of the subscribing witnesses to a will are dead, or absent from the jurisdiction of the court before which the will is offered for j^robatc, proof of the genuine- ness of the sigiiatures of such attesting winesses and of tes- tator is sufficient, with the aid of this presumption that the remaining acts were jn-operly done, to establish the validity of the will."^^ The same rule applies where one of the subscribing wit- nesses is dead or beyond the jurisdiction of the court, and the rest do not remember the facts of execution. Proof of the genuineness of the signatures of testator and the witnesses will, with the aid of the presumption under discussion, estab- lish the validity of the will."^ This legal presumption is, of course, greatly aided by .the direct testimony of such subscribing witnesses as can be pro- duced at probate, or whose evidence can be taken by deposi- ts Hobart V. Hobart, 154 111. 610. Hawk, 107 To. 723; Allison's Estate, 76Laudy's Will, 161 N. Y. 429; 104 lo. 130; 73 N. W. 489; Nicker- so Gwillim V. Gwillim, 3 Sw. & Tr. son v. Buck, 12 Gush. 332; Sulli- 200; 29 L. J. P. 31. van's Will, 114 Mich. 189; Jackson 77 Earnewall v. Murrell, 108 Ala. v. Van Dusen, 5 Johns. (N". Y.), 366; Robinson v. Brewster, 140 111. 144. 649; Hobart V. Hobart, 1,54 111. 610: 78 Tyler's Estate, 121 Cal. 405; Taylor v. Cox, 153 111. 220; Scott v. SlinHoff v. Bruner. 174 111. 561. 443 LAW OF WILLS. tion, that the acts necessary to a legal execution actually too. nlace Uuder these circumstances a will may be admitted to probate upon such evidence." This presumption obtains even vhere th deposition of such absent subscribing witness has teen taken olitside the jurisdiction of the probate court on Other issues.^*^ §374. Presumption where subscribing witness denies facts of execution. Even where a subscribing witness denies the existence of certain facts necessary for the legal execution of the will, the maxim "omrda praesumuntur rite acta" may prevail over such direct evidence. The subscribing witness, by acting as such in eftect formally declares that all the facts necessary tx> the leo-al execution of the will exist, and he has in advance seriously discredited his subsequent denial of these facts under oath The presumption of the performance of the necessary acts'mav, therefore, not be overcome by such adverse tesi- mony,«^^and a will may be admitted to probate, though the subscribing witnesses testify adversely thereto. The subscribing witnesses are especially discredited where they testify in favor of the will at probate and against it_ at contest ;«^ or where they hesitate and evade before denying the validity of the execution of the will.^^ §375. Presumption from character of scrivener who supervised execution. Evidence that the will was drawn and the execution super- 79 (Jones's Will), Jones V. Jones, -Mays v. Mays, 114 Mo^ 536 .Jr TJ (issue of sanity) ; Orser v. Orser, 96 Wis. 42/. T^, T. T^o- 94 N Y. 51; Loughney v. Lough- so Allison's Estate, 104 lo. 130. -4^N^_ ^^j^^^ ^^^^^^^^^^^ ^^^._ 73 N. W. 489. . 25 N. Y. 422. 81 Dayman v. Dajonan, t\ Law "^'-^ . ^ ,,oqqx a T. 699; Gillis v. Gillis, 96 Ga. 1; ^J^f ^^^^ ^^ ^^^ ''^''l\t, Gwin V. Gwin (Ida.) , 48 Pac. 295 ; C. ^^l = 68 K -I- R C. ^^ Bei-nsee'B Will, 141 N. Y. 389 ; Orser ^^-^ J^^^^ w H Ul N Y. 389. V. Orser, 24 N. Y. 51 ; In re Stacey. «^ Bernsee s Will, 6 Ohio Dec. 499; Rice's Estate, 1.3 Pa. St. 298. 444 LAW OF WILLS. vised by one who was exj^erienced in sncli subjects is com- petent, as a presumption of fact may thereupon arise that the execution was properly accomplished.^^ Evidence that testator himself was an experienced lawyer is also admissible to raise this presumiition.*''^ This evidence is, of course, not conclusive as to due execution. ^^ §376, Declarations of testator Res gestae. The ordinary rule is that the declarations of a testator are admissible only when they are contemporaneous with and explanatory of the facts of execution.** It is a little difficult to tell exactly what declarations are so" contemporaneous as to be admissible under the res gestae rule and what are not. Declarations of testator at execution that he had heard the will read to him upon a previous occasion are admissible to show that he was ac(iuainted with its contents.*^ Thus, the declarations of testator to his attorney that the specific paper was his will were held admissible.*^^ In an extreme case declarations of testator before the ex- ecution of the will made to his son who brought the attorney to draft the will, and declarations made to such son imme- diately after the execution of the will in the son's absence, were held sufficient to establish due execution.^^ Testator's declarations to subscribing witnesses at execu- tion that the will was his, and that he had fully witnessed it, constitute some evidence that his name was written by another in his presence and at his request, where it was shown that he did not sign it himself.^^ 85 Sullivan's Will, 114 Mich. ss Walton v. Kendrick, 122 Mo. 189; Nelson's Will, 141 jST. Y. 152; 504; Waterman v. Whitney, 11 N. Gable v. Ranch, 50 S. Car. 95. Y. 157; Gordon's Will, 50 N. J. (Where the scrivener, who was also Eq. 397. attesting witness, had been probate 89 McCommon v. McCommon, 151 judge for twelve years.) III. 428. 86 Stewart v. Stewart, 56 N. J. so Scott v. Hawk, 107 lo. 723. Eq. 761 ; Nelson's Will, 141 N. Y. 9i Scott's Estate, 147 Pa. St. 89. 152. 92 Walton v. Kendrick, 122 Mo. 87 Purdy's Will, 25 Misc. (N. Y.), 504: 25 L. R. A. 701. 458 : 55 N. Y. Supp. 644. LAW OF WILLS. 445 §377. Declarations of testator. — Not res gestae. The great weight of authority is that declarations made at any period of time after execution, no matter how short, are narratives of past events, and are inadmissible to establish due execution.^^ Thus, declarations by testator that he had not made a will are inadmissible to show that the will offered for probate was a forgery.^^ So, declarations of testator made before the execution of the will, as to his intentions, are inadmissible upon the question of the execution of the will.^^ But testator's declarations that he had made a will have been held admissible to corroborate other testimony to that effect.^° The declarations of testator are admissible to show the genuineness of his handwriting, but not as to his intention.^^ Since declarations are usually admissible to show mental con- dition and states of feeling, testator's declarations made af- ter execution are admissible to show that he knew that the instrument which he was executing was a will.^^ §378. Expert evidence. The opinions of experts in handwriting are admissible upon questions of the genuineness of the signatures to the will.^^ So are the opinions of persons who, though not ex- perts, are familiar with the handwriting in dispute.^ °^ Papers admitted or proven to be the genuine handwriting of the person whose handwriting is in dispute are also ad- missible as standards of comparison.^ *^^ 93 Leslie v. McMurty, GO Ark. on Lane v. Hill, 68 N. H. 275 ; 301 ; Walton v. Kendrick, 122 Mo. 44 Atl. 393. 504; Wells v. Wells, 144 Mo. 198; 97 Morvant's Succession, 45 La. Gordon's Will, 50 N. J. Eq. 397. Ann. 207. 94 Leslie v. McMuity, 60 Ark. 98 Nelson's Will, 141 N. Y. 152; 301; Wells v. Wells, 144 Mo. 198. Sullivan's Will, 114 Mich. 189. But in Risse v. Gasch, 43 Neb. 287, 99 Clark v. Ellis, 28 S. W. (Ky.) testator's declarations that he had 148; Berg's Estate, 173 Pa. St. 647. not made a will were put in evi- For a general discussion of what dence; and the Supreme Court re- an expert is, see Sec. 389. fused to disturb the verdict. _ loo Berg's Estate, 173 Pa. St. 95 Throckmorton v. Holt, 12 App. 647. D. C. 552; Swope v. Donnelly, 190 loi Clark v. Ellis, — Ky. — ; 28 Pa. St. 417; 42 Atl. 882. S. W. 148. 446 LAW OF WILLS. The opinions of experts, adverse to the genuineness of the signatures, are, however, of little weight in comparison with the direct evidence of persons present at the execution of the will,^°^ unless they are fortified and strengthened by other suspicious circumstances. Thus, where the will was suppressed until after the death of the onlv subscribing witness who was unbiased, this fact, together with testimony of experts adverse to the genuineness of the signatures, was held sufficient evi- dence on which to find against the will, though the other sub- scribing witness, a son of the chief beneficiary, testified to its genuineness.^ ^^ §379. Evidence negativing execution. Evidence tending to show that the will was not, and could not have been, executed as alleged is admissible. Thus, evi- dence is admissible that testator,^'''* or one of the alleged sub- scribing witnesses,^ "^^ was not present at the time and place of the alleged execution of the will. The fact that the sigTiature appended to the will is in sub- stantially different form from the usual signature of testator is a circumstance to be considered in determining the genuine- ness of snch signature.-^ °^ Where the subscribing witnesses make out a pinma facie case of due execution, this is not rebutted by the evidence of one of the subscribing witnesses who testifies that he thoughu that the will was written on a differently shaped piece of pa- per from that which was offered for probate as the will.^^''' So the mere fact that the will was written on two pieces of paper, so pasted together that the execution clause was en- tirely on one sheet,^^^ or the fact that the signature of tes- 102 Conway v. Ewald. — (N. J. lofi Risse v. Gascli, 43 Xeb. 287. Prer.), — ; 42 Atl. 338; Douglass's io7 Harp v. Parr, 168 111. 459. Estate, 162 Pa. St. 567; 29 Atl. (On this point he was contradicted 715. by the scrivener and the other sub- 103 Clark v. Ellis, — Ky. — ; 28 scribing witness.) S. W. 148. 108 Lamb V. Lippencott, 115 Mich. 104 Risse V. Gasch, 43 Neb. 287. 611; 73 X. W. 887. 105 Barbour v. Moore, 10 App. D. C. 30. 447 LAW OF WILLS. tator was in ink of a different kind from tliat in wind, the bX of the will was .vritten"^ were each held .nsnfcc.ent Jttablish forgery. So, where the only evidence tnoppos- tion to the prima facie, case made out by proof of the hand w ing is that of one witness who admits that the signature Resembled that of testatrix, bnt that it was -^ l^ers "becanse Ihenever wanted to make snch a will," it was held that there was nothing to go to the jury.^'° §380. Evidence of animus testandi. Where it is show that testator signed the will, it is pnm» facie evidence that he signed it nnderstandmgly. Where he instnnnent is regular in form, and testamentary » o.- Lssion it requires the clearest and most convincing evidence tosh" that it was not executed by testator with testamentary intent ^^^ In order to show the anhnus testandi it is not necessary to show that the testator actually read the will -^ ^ ^or where he is illiterate is it necessary to show that the will was read to him^^^ Even where the desire of testator would have originallv violated the rule against perpetuities and when thi^ was" explained to him he asked that the wdl be drawn as near his original wish as could be done under the law, it was held unnecessary to show that the will as finally drawn was, in fact, read over to testator.-^ But where the evidence disclosed that the will as dra^vn was in partial disregard of tie expressed wishes of testatrix, and it was never read over xoo Davis V. Elliott, 55 N. J. Eq. -3 Walton v. Kendrick, 122 Mo. 473; 36 Atl. 1092. (In this case 504; Boehm v. Kress, 179 Pa. St. the evidence tended to show that 386. while there were several bottles ^^* ^^^--^ ^- ^^•"' f^^'"^' f,'" of ink on the table only one pen "-^^ Sheer v. Sheer, 159 II. 59 and ^nd of ink were used.) (The scrivener who drew the w.U no Berg's Estate, 173 Pa. St. testified: "I drew it as near hke ^ ^ Ms directions as it could be done "'L Sheer v Sheer, 159 111. 591. under the law"; and no evidence 1X2 Sullivan's Will, lU Mich. contradicted this.) 189; Boehm V. Kress, 179 Pa. St. 386. 448 LAW OF WILLS. to her in its final form, it was held that the j)resumption of the animus testandi was rebutted.^ ^^ The statement of a subscribing witness that testator knew what he was about is not sufficient where the evidence shows that testator did not recognize anyone and was unconscious.^ ^"^ §381. Questions of law and fact. What facts are necessary to the due execution of a will is a question of law to be determined by the court.^^^ Whether in the particular case these facts exist, is a question of fact peculiarly for the tribunal which is to decide the facts, whether that is the jury or the court. Ill— EVIDENCE OF INCAPACITY §382. Burden of proof. Upon the question of whether the proponent of the will — the party who contends that the will is valid, or the con- testant — the party who contends that the will is not valid, has the burden of jDroof upon the question of mental capacity, the courts are hopelessly divided. The weight of authority seems to be that the burden of proof is upon the party alleging in- capacity; that is, upon the contestant.^ ^'^ iieWaite v. Frisbie, 45 Minn. Helm, 2 Marv. (Del.), 237; Smith 301. V. Day (Del.), 45 Atl. 396; Blough 1" Chappell V. Trent, 90 Va. 849. v. Parry, 144 Ind. 463, disapprov- iisHarp V. Parr, 168 111. 459; ing Durham v. Smith, 120 Ind. 463, Bramel v. Bramel, — Ky. — ; 39 overruling Kenworthy v. Williams, S. W. 520. 5 Ind. 375; Young v. Miller, 145 119 Barnewall v. Murrell, 108 Ala. Ind. 652 ; Turner v. Cook, 36 Ind. 366; Eastis v. Montgomery, 95 Ala. 129; Moore v. Allen, 5 Ind. 521; 486; Knox v. Knox, 95 Ala. 495; Blake v. Rourke, 74 lo. 519; Boone Daniel v. Hill, 52 Ala. 430; Stubbs v. Ritchie (Ky.), 53 S. W. 518; V. Houston, 33 Ala. 555, overrul- King v. King (Ky.), 42 S. W. 347; ing Dunlap v. Robinson, 28 Ala. Howat v. Howat (Ky.), 41 S. W. 100; McCulloch v. Campbell, 49 771 ; Barnes v. Barnes, 66 Me. 286; Ark. 367 : Jenkins v. Tobin, 31 Ark. Tyson v. Tyson, 37 Md. 567 ; Hig- 306; Scott's Estate, — Cal. — gins v. Carlton. 28 Md. 115; Carl (1900), 60 Pac. 527; Steele v. v. Gabel, 120 Mo. 283; Payne v. LAW OF WILLS. 449 Where this is the rule the verdict must be in favor of pro- ponents, if the evidence adduced is so evenly balanced that there can not be said to be a preponderance either way.^^*^ This is the rule even where the testator was a monomaniac. The burden of proof is on the party alleging incapacity to show that the will was affected thereby.-^ -^ The burden of proof is on contestants to establish incapacity of permanent type be- fore jjroponent could.be called upon to show that the will was made in a lucid interval.^ "^ . A very large and respectable minority of the courts, however, take the position that the party propounding the will has the burden of proof as to every fact necessary to the validity of the will, including the mental capacity of the testator.^ -^ The reason given for this view is not without force. It is that the right to make a will, of real estate at least, is not a Banks, 32 Miss. 292; Sheelian v. Kearney, — Miss. — ; 21 So. 41; Perkins v. Perkins, 39 N. H. 163; In re Burn's Will, 121 N. Car. 336; McCoon v. Allen, 45 N. J. Eq. 708; Elkinton v. Brick, 44 N. J. Eq. 154; Harris v. Van- derveer, 21 N. J. Eq. 561 ; Sanderson v. Sanderson, 52 N. J. Eq. 243; Delafield v. Parish, 25 N. Y. 9; Howard v. Moot, 64 N. Y. 262; Messner v. Elliott, 184 Pa. St. 41 ; Linton's Appeal, 104 Pa. St. 228; Grubbs v. McDonald, 91 Pa. St. 236; Egbert V. Egbert, 78 Pa. St. 326; Bartee v. Thompson, 8 Baxt. (Tenn.), 508; Key v. Hol- loway, 7 Baxt. (Tenn.), 575; Burton v. Scott, 3 Rand. (Va.), 399; Allen v. Griffin, 69 Wis. 529. 120 Roller V. Kling, 150 Ind. 159. 121 Young V. Miller, 145 Ind. 652 ; Edwards v. Davis, 30 Weekly Law Bull. 283; Taylor v. Trich, 165 Pa. St. 586. i22Murphree v. Senn, 107 Ala.- 424; O'Donnell v. Rodiger, 76 Ala. 222; Henry v. Hall. 106 Ala. 84. 123 Harrison's Will, 30 N. B. 164; Livingstone's Appeal, 63 Conn. 68 ; In re Barber's Estate, 63 Conn. 393 ; Comstock V. Society, 8 Conn. 254 : Evans v. Arnold, 52 Ga. 169; John- ston V. Stevens (Ky.), 23 S. W. 957; Baldwin v. Parker, 99 Mass. 79 ; Crowninshield v. Crowninshield, 2 Gray (Mass.), 524; Baxter v. Abbott, 7 Gray (Mass.), 71; Hall V. Perry, 87 Me. 569 ; In re Thomp- son, 92 Me. 563; Moriarity v. Mo- riarity, 108 Mich. 249; Prentis v. Bates, 93 Mich. 234, overruling same case, 88 Mich. 567; Taff v. Hosmer, 14 Mich. 309; In re Lay- man's Will, 40 Minn. 371 ; Mad- dox V. Maddox, 114 Mo. 35; Nor- ton V. Paxton, 110 Mo. 456; Patten V. Cilley, 67 N. H. 520; Hardy v. Merrill, 56 N". H. 227; Murry v. Hennessey, 48 Neb. 608 ; Seebrock V. Fedawa, 30 Neb. 424; Hubbard v. Hubbard, 7 Ore. 42, Chrisman v. Chrisman, 16 Oreg. 127; Williams V. Robinson, 42 Vt. 658 ; In re Bald- win's Estate, 13 Wash. 666; Me- Mechen v. McMechen, 17 W. Va. .683. 450 LAW OF WILLS. common law right, but depends npon the statute in deroga- tion of the common law ; that a will to be valid must be proved to be within the terms of this statute, and that as one of the requisites of the statute is that the testator must be of sound mind, tlie proponent of the will has the duty of maintaining the issue on this fact by a preponderance of evidence.-^ ^"^ Thus, where this rule is in force it is reversible error for the trial court to place the burden of proof upon contestants by charging "if there is more of the evidence ... on the side of the contestants . . . the will ought to be overruled." ^^^ In other jurisdictions the rule is expressed as follows: It is incumbent upon the proponents of the will to make a prima facie case by the evidence of the subscribing witnesses of all the requisites of a valid will, including the capacity of the testator. After proponents have made out such prima facie case, contestants must overcome this pritna facie showing by substantial evidence ;^^^ or, as is said in other jurisdictions, by a preponderance of the evidence.^ ^'^ Or it is sometimes said that the burden of making out a prima facie case is upon the proponents in the first instance, but that when they have done this by means of the evidence of the subscribing witnesses, the burden of j)roof is upon con- testants to show lack of capacity.^ ^^ 124 Crowninshield v. Crownin- 125 Moriarity v. Moriarity, 108 shield, 2 Gray (Mass.), 524; Bald- Mich. 249. win V. Parker 99 Mass. 79; In re 126 Barber's Estate, 63 Conn. 393: Baldwin's Estate, 13 Wash. 666; 22 L. R. A. 90; Fulbright v. Perry McMechen v. McMechen, 17 W. Va. County, 145 Mo. 432. 683. 12- Smith v. Henline, 174 111. 184 "The general rule that all persons Craig v. Southard, 162 111. 209 are presumed sane until the con- Graybeal v. Gardner, 146 111. 337 trary appears . . . does not apply Taylor v. Cox, 153 III. 220; Bevelot in cases of this kind. There must v. Lestrade, 153 111. 625 ; Pendlay be sufficient proof to make out a v. Eaton, 130 111. 69; Hawkins v. prima facie case of the sanity of Grimes, 13 B. Mon. (Ky. ), 257. testator at the time the will is 12s Hollenbeck v. Cook, 180 111. made as one of the jurisdictional 65; Egbers v. Egbers, 177 111. 82. facts." In re Baldwin's Estate, 13 Wash. 666. 1,AW OF WILLS. 451 In Canada the bnrden rests npon proponent, if he was active in procuring the execution of the will.^-^ §383. Presumption of sanity. In most cases there is a presumption tliat any person whose capacity is under discussion is sane. The weight of authority is that this presumption obtains in cases involving the validity of wills, and that the testator is always presumed sane until evidence discloses the contrary state of miiid.^^" It is, accordingly, proper to charge the jury that if the other evidence is equally balanced the presumption of sanity has probative force enough to turn the scale in favor of the will,^^^ and it is error to refuse to charge that "every person is bf sound mind until the contrary is shown." ^^^ This presumption is not, of course, conclusive. It is at the utmost a prima facie presumption of law, liable to be re- butted by evidence. In other jurisdictions it is said that there is no presump- tion of sanity.^ "2 wi^ie the rules as to presumption of sanity 129 Currie v. Currie, 24 Can. S. C. 712. And a similar view is ex- pressed in Hegney v. Head, 126 Mo. 619. 130 Barnewall v. Murrell, 108 Ala. 366; In re Barber's Estate, 63 Conn. 393; Sturdevant's Appeal, 71 Conn. 393; Ethridge v. Bennett, 9 Houst. (Del.), 295; Craig v. South- ard, 162 111. 209; Blough v. Parry, 144 Ind. 463; Mayo v. .Tones, 78 N. Car. 402 ; Perking v. Perkins, 39 N. H. 163; Delafield v. Parish, 25 N. Y. 9; Messner v. Elliott, 184 Pa. St. 41 ; Grubbs v. McDonald, 91 Pa. St. 236 ; Newhard v. Yundt, 132 Pa. St. 324; Dean v. Dean, 27 Vt. 746. "When proponent proves the formal execution of a will, including the attestation and subscription of the witnesses as required by law, a presumption of testamentary ca- pacity arises, since every adult is presumed to be sane until the con- trary appears, and since witnesses, when they attest and subscribe a Avill as such, not only attest the fact of the testator's signing, but also the' testator's sanity." Kauf- man V. Caughman, 49 S. Car. 159. 131 Sturdevant's Appeal, 71 Conn. 393. In this case the court said: "The presumption of sanity is not in itself evidence, but it may serve the purpose and supply the place of evidence by setting up something which must be overcome by proof to the contrary." 132 sturdevant's Appeal, 71 Conn. 392; Blough v. Parry, 144 Ind. 463. 13.-5 In re Thompson, 92 Me. 563 ; Barnes v. Barnes, 66 Me. 286; Hub- bard V. Hubbard, 7 Oreg. 42 ; Beaz- ley V. Denson, 40 Tex. 416; Bald- win's Estate, 13 Wash. 666. This proposition is so qualified, however, as not to be as completely in con- tradiction of the rule held in most states as at first appears. 452 LAW OF WILLS. are closely interwoven with those as to the burden of proof, they are nevertheless not identical, and they should be con- sidered separately. In some jurisdictions, where the burden of proof is upon the proponents of the will, they are aided by the presumption of sanity, which may turn the preponderance in their favor where the other evidence is equally balanced,^ ^* and where the court has refused to charge that "every person is presumed of sound mind until the contrary is sho^vn," this error is not cured by a charge that the "burden is on plain- tiffs to show, by a fair preponderance, unsoundness of mind." 13^ §384. Presumption of continuance of mental condition. Where evidence is introduced which shows that testator, prior to the date of making the will, suffered from some form of mental disorder, which would deprive him of testamentary capacity, and this disorder is shown to be of a permanent type, a presumption arises that such incapacity continued do^\^l to and including the time of making the will.^^^ Thus, a lunatic without lucid intervals,^^'^ and a person suffering from senile demeniia^^^ are presumed, in the absence of proof to the contrary, to remain in that condition, and to be there- after incapable of making a valid will. It is necessary, in order to raise this presimiption, to show that the insanity, or other form of incapacity, was of a per- manent type; and a general charge that insanity is presumed to continue is properly refused.^ ^^ It is held, however, im- proper in such a case to charge that the burden of proving that the will was made in a lucid interval rests on pro- ponents.-^'**^ 134 Barber's Estate, 63 Conn. 393; 348; In re Hoopes' Estate, 174 Pa. Sturdevant's Appeal, 71 Conn. 393; St. 373; Ely's Estate, 39 K Y. 42 Atl. 70; Trish v. Newell, 62 111. Supp. 177. 196. 137 /ii re Hoopes' Estate, 174 Pa. 135 Blough V. Parry, 144 Ind. 463. St. 373. 136 O'Donnell v. Rodiger, 76 Ala. i3s Bever v. Spangler, 93 lo. 576. 222; Harrison v. Bishop, 131 Ind. i39 Murphree v. Senn, 107 Ala. 161; Roller v. Kling, 1.50 Ind. 1.59; 424; Manley's Exr. v. Staples, 65 Bever v. Spangler, 93 lo. 576; Vt. 370. Chandler v. Barrett, 21 La. Ann. i4o Merriman v. Merriman, 153 58: Von de Veld v. Judv, 143 Mo. Ind. 631 (1899), 55 N. E. 7.34; and LAW OF WILLS. 453 But where the evidence discloses that at some time prior to the date of making the will testator suffered from some form of mental disorder, which deprived him at the time of testamentary capacity, and that this incapacity was of a temporary nature, no presumption of the continuance of such incapacity arises, and the presumption of sanity, if in force in that jurisdiction, will prevail.^^^ Thus, evidence that tes- tator suffered at one time from religious insanity, of a tem- porary type, raises no presumption of its continuance; ^^^ nor does the fact that testator was shown to be given to the habit- ual use of drugs'^^ or stimulants ^'*'* raise a presumption that the effect of such drugs and stimulants operated at the time of the execution of the will, and affected testator's mental capacity then. Evidence that testator had a fit of epilepsy on the day he made his will, before its execution, does not establish a lack of capacity during the whole day.^^^ Hence, the fact that testator once attempted suicide does not raise any presump- tion that, if such attempt was caused by insanity, the insanity existed at the date of the will.^''^ And suicide by testator six weeks after the execution of his will does not raise a presumption that he was insane at the date of the execution of the will.^^'^ ISTor is evidence that testator was very irrita- ble three years before the execution of the will admissible.^ ■^^^ in Louisiana it is said that the exe- 348 ; Frost v. Wheeler, 43 N. J. Eq. eution of a sensible will raises the 573; Miller v. Oestrich, 157 Pa. St. presumption that it was executed 264. in a lucid interval. Kingsbury v. i*'* Wilson's Estate, 117 Cal. 2G2 ; Whitaker, 32 La. Ann. 1055. Ball v. Kane, I Penne. (Del.), 90; 141 Johnson v. Armstrong, 97 Ala. Lee's Will, 46 N. J. Eq. 193; Koe- 731; /n re Wilson's Estate, 117 Cal. gel v. Egner, 54 N. J. Eq. 623; 262; Taylor v. Pegram, 151 111. 106; Woolsey's Will, 41 N. Y. Supp. 263. Williams v. Williams, 90 Ky. 28; Apparently contra, Cockran's Von de Veld v. Judy, 143 Mo. 348; Will, 1 T. B. Mon. (Ky.), 263. Hix V. Whittemore, 4 Met. (Mass.), i^s Johnson's Will, 27 N. Y. Supp. 545 ; Koegel v. Egner, 54 N". J. Eq. 649 ; 57 N. Y. S. R. 846. 623; Miller v. Oestrich, 157 Pa. St. i*o Koegel v. Egner, 54 N. J. Eq. 264. ' 623. 142 Williams v. Williams, 90 Ky. i*'^ Bey's Succession, 46 La. Ann. 28. 773. 143 Von de Veld v. Judy, 143 Mo. i48 Blood's Estate, 62 Vt. 359. 454 LAW OF WILLS. i^SSS. Nature of will as evidence of capacity. With the exception of certain statutory ])rovisions, which are elsewhere considered, a testator who has sound and dis- posing mind and memory, and is not under restraint, may make a will excluding the natural objects of his bounty in part, or entirely, from sharing in his estate.^ "^^ Under the civil law a will whereby the testator without just cause excluded from his estate those who were near to him in blood, as where a parent disinherited a child, or a child excluded a parent, was known as an inofficious will, and might be set aside by a form of contest known as querela inofjiciosi testamenti}^^ But the common law recognizes no such limitation upon the testamentary power of a testator who possesses testamentary capacity, though in some jurisdic- tions special statutes, which are elsewhere considered, limit testator's power of devising his property to the exclusion of his immediate family. However, the nature of the will itself is clearly one of the controlling facts in passing upon doubtful testamentary capacity. Popular feeling upon this point coincides with the rules of law, and the jury or the court M'hich decides upon the facts must be allowed to con- sider the nature of the will in connection with the other evi- dence in the case.^^-^ In some jurisdictions the effect of a sensible will made by the testator, unaided, is to raise a presumption of sanity so strong that even if testator has been shown to be habitually insane it is presumed that the will was made in a lucid interval.^''" i«See Sec. 23. G04 ; Rivard v. Rivard, 109 Mich. 150 Bouv. Law Diet., "In officio- 98; Prather v. McClelland (Tex. sum." Dig. 2, 5, 3, 13. Paiilus. Lib. Civ. App.), 20 S. W. 657; Prather 4, tit. 5, Sec. 1. V. McClelland, 76 Tex. 574; Silver- 151 Wilson's Will, 117 Cal. 262: thorn's Will, 68 Wis. 372. Stiirdevant's Appeal. 71 Conn. 393; Contra, Barbour v. Moore, 4 App. 42 Atl. 70; Smith v. Smith, 75 Ga. D. C. 535, 477 ; Kaenders v. Montague, 180 111. i52 Succession of Bey, 46 La. Ann. 300; Hollenbeck v. f'ook, 180 111. 773; Kingsbury v. Whitaker, 32 65; Aylward v. Briggs, 145 Mo. La. Ann. 1055. LAW OF WILLS. 455 In jurisdictions which hold that the burden of proof shifts during the progress of the trial, the rule that a rational will raises a presmnption of sanity is thus stated: If the will is "consistent in its provisions and rational on its face the pre- sumption is that" the testator "was of sound mind at the time of its execution, and the burden shifts to contestant to show that he was not of sound mind at that time."^''^ And on the other hand, if the will is unfair and unreasonable, it is said that the burden of proof shifts to the proponents to establish the mental capacity of the testator.^ ^'^ The theory that the burden of proof never shifts has al- ready been explained. In states where this theory is held, the nature of the will is to be considered merely as evidence, and the burden is, of course, unchanged.^ ^^ If the will is unjust and unreasonable in view of the rela- tions of the parties, this fact may be shown by proper evidence, and may be considered by the jury as bearing upon testator's capacity.-^ ^^ Such injustice may be considered even where the party who is unfairly treated makes no objection to the validity of the will. As it bears upon testator's capacity, any person having a right to contest the will may introduce evidence tending to establish its injustice. Thus, where testator's wife i53Bramel v. Bramel, — (Ky.), 106 lo. 203; Newcomb's Exrs. v. — ; 39 S. W. 520; Newcomb v, NeM'Comb, 90 Ky. 120; Maddox v. Newcomb, 96 Ky. 120; Maddox v. Maddox, 114 Mo. 35; In re Burns'a Maddox, 114 Mo. 35. Will, 121 N. Car. 336. 154 Gay V. Gillilan, 92 Mo. 250 ; "That the inequities of a will Maddox v. Maddox, 114 Mo. 35; may be taken into consideration in Budlong's Will, 126 N. Y. 423: determining the mental capacity of Caldwell v. Anderson, 104 Pa. St. testator or whether undue influence 199. has been used, is too well settled 155 Ousley V. Witheron, 13 Ohio to require an extended examination C. C. 298. of the authorities." Manatt v. 156 Pooler V. Cristman, 145 111. Scott, 106 lo. 203, citing and fol- 405 (overruling Rutherford v. Mor- lowing Crandall's Appeal, 63 Conn, ris, 77 111. 397; Nicewander v. 365; Sim v. Russell, 90 lo. 656; Nicewander. 151 111. 156; Sim V. Davis v. Calvert, 5 Gill. & J. (Md.) , Russell. 90 lo. 656: Manatt v. Scott, 269; Peck v. Carv, 27 N. Y. 9. 456 LAW or WILLS. had, hj her property, given him the means of accumulating his property, and she was very unfairly treated in his will, but she did not contest it, it was held that the heirs might introduce evidence of these facts to show that the will was an unjust one.-^^'^ While the jury may consider the nature of the will, and its justice or injustice, this is only one out of many things to be considered, insufficient of itself to show lack of mental capac- ity.-^ ^® Since the propriety of testators' will is not a matter for court or jury to pass upon, it is error to submit such ques- tion to the jury in any form.^^^ So while circumstances of inequality and unfairness in the will, may be considered in connection with other evidence as bearing upon the question of capacity, they must not be given undue prominence by the court in its charge. Thus, a charge that testamentary capac- ity is ability ''to understand the obligations of testator, if any are shown to exist, towards any person," is erroneous as giving undue prominence to such obligations.-^ ^"^ And a charge that the injustice of the will is to be considered to- 157 Pergason v. Etclierson, 91 Ga. i^^ Barbour v. Moore, 4 App. D. 785. C. 535; Nieman v. Schnitker, 181 158 Henry v. Hall, 106 Ala. 84; 111. 400; Carpenter v. Calvert, 83 Knox V. Knox, 95 Ala. 495; In re III. 62; Freeman v. Easly, 117 111. Kaufman's Will, 117 Cal. 288; 317. Barbour v. Moore, 4 App. D. C. Thus where no evidence tending 535; Bennett V. Hibbert, 88 lo. 154; to show an insane delusion had Barlow v. Waters (Ky. ), 28 S. W. been introduced it was held error 785 ; Kaufman v. Caughman, 49 S. to charge : "A person may have Car. 159 (disinheritance of child). upon some subjects, and even gener- "Apparent inequality or inequity ally, mind and memory and sense in the provisions of a will will not to know and comprehend ordinary alone warrant the presumption of transactions, and yet upon the sub- mental capacity or undue influence. ject of those who would naturally These may be considered as cir- be the objects of his care and cumstanees in connection with other bounty, and of a reasonable and facts bearing on the condition of proper disposition to them of his the testator's mind." Manatt v. estate, he may be of unsound Scott, 106 lo. 203, citing and fol- mind," since this directed the atten- lowing Knox v. Knox, 95 Ala. 495; tion of the jury to the propriety of In re Hess's Will, 48 Minn. 504; the will. Nieman v. Schnitker, 181 Maddox v. Maddox, 114 Mo. 35; 111. 400. Turnure v. Turnure, 35 N. J. Eq. i6o Bulger v. Ross, 98 Ala. 267. 437. 457 LAW OT? WILLS. getter with other facts, is erroneo^, as it gives undue promi- ^pnf'p to the iniustice of the wilL^*^^ . . • . "'^ rther, if L court charges, as it properly n.y, tha^ a p. will is strong evidence of capacity, aud an unjust will the ; r , U is°error for the court to point out certain uatura benefic aries only t« the exclusion of others, as to refer to the brothers aud sisters of the testator as the natural objects of b s boult' to the exclusion of certain nephews, sons of a de- c^Ised brother.'- And it is error to assume, as a matte ol u'that a will which^excludes all of testator's relations is . just and natural one.'"^ §386 Evidence of financial standing of parties. Since the great weight of authority allows the jury to JZr the ustice or injustice of the will - ^-™g ;» testator's capacity, it would naturally ollow th=it ^ ;-^_ free inquiry should be permitted into the history of the finan c andi;g of the parties to the suit, and of their previous rrilt 1 IS wtth testator, in order to determine whether the V U was fair and reasonable or not. Accordingly we find 1^ he Irts allow inquiry into these facts, yet with more t ^in admitting evidence than would be expected froin ■ tTeTroad principle laid down as to the effect of the nature ot %:l,ce is admissible as to how testator acquired the prop- erty disposed of by will,'- and to show the value of the d Xt's estate.'- Evidence is admissible to show advancements .tfbv testator in his life U> the father of his grandchildren, and to "show the size of their father's estate as showing tha. the will was a reasonable one.^^° v^. _• 162 Sturdevant's Appeal, 71 Conn. 161 Herbert v. Long. — 1"^>- ' „ ,^ ..i -n .3 S. W. 658; Zi,nlicli v. Zin^liC, 303 . 43^A.K -0. ^^^^^^ ^^ ^^^ ^^^_ ^^ ^^- ^^'- , ,0,, eourt ^^*In re Wilson's Estate, 117 Cal. Another case ^vhere the oouit Etcherson, 91 Ga. erred in giving such prominence to 262 , i er^ason the justice of the will as to lead the -So ^^^ ^^^^_ jury to pass on its propriety, rather e., m^e t than its validity, is Couch v. Gen-. 301.^^^^^^^^^^^ ^ ^^^^^^ ^^^^ ^^ ^^3 try, 113 Mo. 248. 458 LAW OF WJLLS. Evidence of financial standing of the contestants has been held to be immaterial, where advancements by testator were not involved/ ^^ and so has evidence of the financial stand- ing of the father of the beneficiaries.-^^* Upon this point the conrts are not in accord. In a recent Missouri case it was held that evidence of the financial stand- ing of the parties to the contest was admissible/ ^^ and the wealth of the contestant seems to have been properly admitted in a Maine case. This latter case is not a precedent, as the only evidence of incapacity was that the testatrix was old, was subject to attacks of faintness and dizziness, and left her property to an adopted child to the exclusion of her own child, who was, however, already comfortably provided for; and this was held not to establish insanity conclusively.^ ''''' But where the method by which testator acquired his prop- erty could not affect the testamentary disposition which he would naturally make of it, evidence of such method of ac- quisition is immaterial.-^ '^ §387. Evidence of relations between testator, beneficiaries, and natural objects of bounty. Evidence of services rendered and favors done by excluded relatives for testator in his lifetime is inadmissible.^ '^^ So is evidence of the extent to wliich the decedent aided his rel- atives in his lifetime.-^ ''^^ And where feeling was shown to exist, caused by quarrels between testator's father and the lat^ 167 Pooler V. Cristman, 145 111. disposed of more than she possessed 405; Merriman's Ajjpeal, 108 Mich. was held not conclusive as to her 454. lack of testamentary capacity. Hall IBS ]\Iurphree v. Senn, 107 Ala. v. Perry, 87 Me. 569. 424. 171 Ormsby v. Webb, 134 U. S. 47. i69McFadin v. Catron, 138 Mo. 1^2 Couch v. Gentry, 113 Mo. 197; 120 Mo. 252; Thompson v. Ish, 248; Maddox v. Maddox, 114 Mo. 99 Mo. 160; so Powers v. Powers 35. (Ky.), (1899),. .52 S. W. 845. Contra. Held admissible. Burk- Compare Manatt v. Scott, 106 lo. hart v. Gladish, 123 Ind. 337. 203. 173 Kelley v. Kelley, 168 111. 501. 170 Hall V. Perry. 87 Me. 569. But in Bush v. Delano, 113 Mich. The fact that testatrix in her will 321, such evidence was said to be "a circumstance of slight impor- tance" but admissible. LxVW OF WILLS. 459 ter's wife and brothers, the causes and merits of the original quarrels were held to be immaterial.^ ^^ The fact that the relations of testator with his family were always pleasant is competent ' where for no apparent reason certain children were disinherited ;i^^ so is the fact of a feeling of affection long entertained by testator for a beneficiary/'^*^ as well as tlie fact of a long-standing mutual dislike between tes- tator and his brother,^^^ and so are the causes which induced testatrix so to dispose of her property.^^^ And it is held com- petent to show where testator, a man of seventy, and a paralytic, was living in illicit relations with a woman who he said was his illegitimate daughter, that this woman had a strong family resemblance to one of testator's daughters, and was in fact an illegitimate child.^'^^ Where it was slio\vn that testatrix had always disliked the mother of contestant, and had opposed the marriage of con- testant's mother with the son of testatrix, it was held that such evidence was not admissible to show insanity of testatrix.^ *'^ §388. Opinion evidence. — Subscribing witnesses. It is settled by the almost unanimous weight of authority that the subscribing witnesses to a will may give their opinion as to the sanity or insanty of the testator without any refer- ence to their means of determining his mental capacity, or their ability to judge of his capacity with the means at their disposal.^ '^^ 1T4 Turner's Guardian v. King, its Patten v. Cilley, 67 N. H. — Ky. — ; 32 S. W. 941. 520. 175 "/« re Burn's Will, 121 N. Car. i^o Johnson v. Armstrong, 97 336. Ala. 731. 176 Slingloff V. Bruner, 174 111. i^o Spencer's Estate, 96 Cal. 448. 561; Harp v. Parr, 108 111. 459. isi "The witnesses are chosen by 177 Stevens v. Leonard, 154 Ind. the testator, and are under the law 67 (1900), 56N. E. 27. In this case charged with an important duty in the declarations of the brother relation to the execution and proof showing his hatred of testator were of the will. It may be presiuned lield ndmissible where the claim of that in the performance of that duty insanity was that testator's hatred they will observe carefully the ap- for this brother was due to insane delusion. 460 LAW OF WILLS. The subscribing witnesses may give their opinions as to the sanity of testator without hrst stating the facts upon which they base their opinions,^ **^ though they may afterwards be ex- amined as to such facts.^^^ But where, as in Massachusetts, a non-expert, non-subscribing witness can not give his opinion, a subscribing witness can not be examined as to his opinion of testator's sanity based on facts occurring after the execution of the win.^84 The subscribing witnesses are allowed to testify directly as to the sanity of the testator, "because that is one of the facts nec- essary to the validity of the will, which the law places them around the testator to attest and testify to." ^^^ The testimony of subscribing witnesses who testify to the mental capacity of testator is not, as a matter of law, to be given greater weight by the jury than the testimony of other witnesses.-^ ^^ And where the subscribing witnesses testify adversely to the capacity of testator, they have under oath stated that he was incompetent to make a will, while by their solemn acts in subscribing as witnesses the}^ have in eifect formally declared that he was competent. Accordingly, their testimony adverse to the caj^acity of testator is, under such pearance of the testator at the stances attending its execution, and time and form an opinion as to his upon them to give an opinion that sanity." Williams v. Spencer, 150 the testator was mentally corape- Mass. 346. tent to execute it." Denning v. 182 Ethridge v. Bennett, 9 Houst. Butcher, 91 To. 425, citing In re (Del.), 295; Scott v. McKee, 105 Coleman's Will, 111 N. Y. 220; Ga. 256; 31 S. E. 183; Rob- Doherty v O'Callaghan, 157 Mass. inson v. Adams, 62 Me. 369; Wil- 90; 31 N. E. 720 ; Layman's Will, 40 liams V. Spencer, 150 Mass. 346; Minn. 371: 42 N. W. 286: Scott v. Hardy v. Merrill, 56 N. H. 227; Harris, 113 111. 447: Blackburn v. Holcomb V. Holcomb, 95 N. Y. 316; Crawford, 3 Wall. 175: Fossler v. Potter's Will, 45 N. Y. Supp. 563; Schriber, 38 111. 172: Russell v. Titlow V. Titlow, 54 Pa. St. 216; Jackson, 10 Hare, 204; Graham Kaufman v. Caughman, 49 S. Car. v. O'Fallon, 4 Mo. 338; Pence v. 159; Van Huss V. Rainbolt, 2 Coldw, Waugh, — Ind. — ; 34 N. E. 860. (Tenn.), 139. i"^* Williams v. Spencer, 150 Mass. 183 "We have no doubt upon both 346. reason and authority that one who is^ Hastings v. Rider, 99 Mass. becomes a witness to a will at the 622. testator's request is comnetent to isfi See Sec. 366. testify to all facts and circum- LAW OF WILLS. 461 trying circumstances, of but little value,^*'^ and it is not error for the court to so instruct the jury.-^*'* §389. Opinion evidence. — Witnesses other than subscribing wit nesses. — Experts. An expert, in cases involving mental capacity to make a will, is one who from special study and experience is familiar with the symptoms of mental disease.-^''^ A physician who has made a specialty in study of mental diseases, and has practiced in treating such diseases, is an expert and may testify as such.^°° A physician in general practice is regarded in most juris- dictions as an expert upon questions of sanity. While his qualifications have been challenged in some jurisdictions in criminal cases, it has been conceded in the cases involving the validity of wills that he is an expert,^ ®^ though it has been intimated that he should at least be the physician who attend- ed the testator.1^2 By the weight of authority, where a subscribing witness tes- tified that he was a physician and surgeon, had had several years' experience, had attended to testator in his last illness and believed him to have been of sound mind, may be cross- examined as to his qualifications as an expert.-^ ^^ A superintendent of an insane asylum who has made a study of the diseases of those under his charge is an expert, inasmuch as such superintendents are generally and very properly physicians and specialists in mental diseases.^^'* 187 Chappell V. Trent, 90 Ya. 849 ; Davis, 81 Md. 134; McHugh v. See Sec. 374. Fitzgerald, 103 Mich. 21; Pideociv 188 Stevens v. Leonard, Ind. v. Potter, 68 Pa. St. 342 ; Foster (1900) ; 56 N. E. 27. v. Dickerson, 64 Vt. 233. 189 Crockett v. Davis, 81 Md. i92 Hall v. Perry, 87 Me. 560. 134; Toomes's Estate, 54 Cal. 509. This restriction is contrary to tlie i9'0' General Convention, etc., v. great weight of authority as set Crockett, 7 Ohio C. C. 327. forth in the cases in the preceding 191 7n re Mullin's Estate, 110 Cal. note. Hutchins v. Ford. 82 Me. 363. 252; Barber's Appeal, 63 Conn..393; i93 Mullin's Estate, 110 Cal. 252. Potts V. House, 6 Ga. 324 ; Bever i94 General Convention, etc., v. V. Spangler, 93 lo. 576; In re Fenr Crocker, 7 Ohio C. C. 327; Pren- ton's Will, 97 la. 192: Crocker v. tis v. Bates, 93 Mich. 234. 462 LAW OF WILLS. A priest who had studied mental diseases and made a regu- lar use of his studies in determining the mental capacity of those who confessed to him and applied for absolution, was held to be an expert.-^ ^^ But a chaplain who has regularly visited insane asylums is not necessarily an expert in in- sanity.-' ^^ An expert in mental diseases may give his opinion as to the sanity of testator without giving the facts upon which he bases his opinion.-' ^'^ This opinion may be based upon facts ob- tained by the expert in either of two ways : (a) He may have learned the facts upon which he bases his opinion by personal acquaintance with testator extending over a period of time long enough to enable the expert to form an opinion.-' ^^ (b) The facts upon which the opinion is based may be communicated to the expert in the form of an hypothetical question, in which the attorney narrates the facts involved, and asks the expert his opinion of tlie mental capacity of the man described in such question.^ '^^ He may also give his opinion upon an hypothetical question supplemented by facts which he knows personally, and concerning which he has tes- tified fully.200 If the expert gives his opinion upon the facts put before him by a hypothetical question the value of such opinion de- pends upon whether the evidence establishes such facts or not. If the evidence establishes such facts the jury will then give to the opinion such weight as in their judgment it deserves. But if the evidence fails to establish all the facts set forth In a former decision upon this los Ledwith v. Claifey, 4.5 X. Y. same case it was held that the Supp. G12. superintendent of an insane asylum ^^'i See preceding cases cited under could not trive his opinion as to this section. the condition of a patient whom i^s Crockett v. Davis, 81 Md. 134 ; he had never seen, where such opin- McHugh v. Fitzgerald, 103 Mich, ion was based upon the absence of 21. certain facts from the records of io9 Kempsey v. McC4inniss, 21 the asylum. Prentis v. Bates, 88 Mich. 123; Brown v. Mitchell, 88 Mich. .567. Tex. 350. i9.-3 Toomes's Estate, 54 Cal. 509. 200 Foster v. Dickerson. 64 Vt. 233. LAW OF ' WILLS. 463 in the hypothetical question, the opinion based upon such facts is worthless, for the facts which the jury reject may be the controlling facts on the question of sanity. Accordingly it is error for the court to charge the jury that the value of the opinion of the expert will vary, as the facts set forth in the hypothetical question fail to coincide with the facts as found by the jury.^*^^ Sometimes the expert, who is present at the trial, is asked if from the evidence adduced he believes that the testator was sane or insane. Such a question is, at best, very objectionable. The facts should be put in the form of an hypothetical ques- tion. It is possibly not error to permit it, however, where the evidence referred to is consistent, and is adduced by one of the parties to the suit. Even this is objectionable, as the expert might not deduce the same facts from the evidence as the jury might. But where the evidence is conflicting, and is adduced by both parties to the suit, it is error to allow the expert to express bis opinion as to the sanity of the testator upon such evidence; for this is allowing the expert to usurp the function of the jury, and decide what evidence should be believed and what should be rejected. The jury, furthermore, if not actually misled by such opinion, can not be aided by it, for they can not tell upon which of the facts in dispute the expert based his opinion. ^'^- The value of expert evidence is, at best, doubtful. The witness is often rather the advocate of one side than the unbiassed and impartial scientist, whose opinion impresses the jury as sound and fair. In actual practice his opinions have less weight than would be expected at first thought. The courts have sharply criticised the character of much expert testimony, in no case perhaps more sharply than in one from Illinois. "Upon the question whether (the insanity) had reached such a stage that the subject of it was incapable of making a contract or irresponsible for his acts, the opinion 201 General Convention, etc., v. (Mass.) 467; Kempsey v. Mc&in- Crocker. 7 Ohio C. C. 327. niss, 21 Mich. 123. 202 Woodbury v. Obear, 7 Gray ' 464 LAW OF WILLS. of his neighbors, if men of good common sense, would be worth more than that of all the experts in the country." ^^^ §390. Opinion evidence. — Non-experts. A non-expert witness who is not a subscribing witness can not give his opinion of the testator's sanity without first giv- ing the facts upon which he bases his opinion.^^^ In some jurisdictions by special statute an exception is made in favor of intimate acquaintances of testator, who may give their opinions as to his sanity without first stating the facts upon which such opinion is based.^^^ It rests in a very large measure with the discretion of the trial court as to whether upon the evidence, the witness offered was an "intimate acquaintance" of testator or not.^^^ The general rule is that if a non-expert witness first states the facts upon Avhich he bases his opinion, and shows that he has the means of knowing the condition of testator's mind, he may state his opinion as to testator's sanity.^^'^ And where such non-expert witness has ample opportunities for know- ing testator, and judging of his mental condition, it is held 203 Rutherford v. Morris, 77 111. 397. To the same effect are Carpen- ter V. Calvert, 83 111. G2; Ran- kin V. Rankin, 61 Mo. 295; Cox's Estate, 167 Pa. St. 501; Camp v. Shaw, 52 111. App. 241. 204 Murphree v. Senn, 107 Ala. 424; O'Connor v. Madison, 98 Mich. 183; I.amb v. Lippincott, 115 Mich. 611; 73 ]Sr. W. 887; In re Hoopes's Estate, 174 Pa. St. 373; Dickinson V. Dickinson, 61 Pa. St. 401; Tit- low V. Titlow, 54 Pa. St. 216; Shaver v. McCarthy, 110 Pa. St. 339; Elcessor v. Elcessor, 146 Pa. St. 359. 205 Wax's Estate, 106 Cal. 343. 206 Wax's Estate. 106 Cal. 343; Carnenter's Estate, 94 Cal. 406. 207 Bulger v. Ross, 98 Ala. 267 ; Burney v. Torrey, 100 Ala. 157; Brook's Estate, 54 Cal. 471; Grant V. Thompson, 4 Conn. 203: Turner's Appeal, 72 Conn. 305 ; Ethridge v. Bennett Exrs. 9 Houst. (Del.), 295; Potts V. House, 6 Ga. 324 ; Craig v. Southard, 148 111. 37; Bower v. Bower, 142 Ind. 194; Denning v. Butcher, 91 lo. 425; In re Gold- thorp's Estate, 94 lo. 336; In re Fenton's Will, 97 lo. 192; Beau- bien v. Cicotte, 12 Mich. 459 ; Pren- tis V. Bates, 93 Mich. 234 ; Lamb v. Lippincott, 115 Mich. 611; 73 N. W. 887; Hardy v. Merrill, 56 X. H. 227; Roush v. Wensel, 15 Ohio C. C. 133; Pidcock v. Potter, 68 Pa. St. 342; Bro^Ti v. Mitchell. 87 Tex. 140: 75 Tex. 9; Foster v. Dick- erson, 64 Vt. 233; Whitelaw v. Sims, 90 Va. 588 ; Young v. Bar- ner. 27 Gratt. (Va.). 96. LAW OF WILLS. 4(55 that lie may give his opinion as to his sanity, even if he can not give in detail the conversations or specific facts upon which he bases his opinion.-^^ Considerable liberality is shown by the courts in allowing persons who are comparatively slightly acquainted with tes- tator to testify as to their opinion of his sanity. A clergyman who visited testatrix in her last illness was allowed to give his opinion as to her mental condition after stating the facts on which such opinion was based.^*^'' A stenographer who took the deposition of testatrix for a period of about two hours, and testified that testatrix hesitated and was prompted often, was allowed to give her opinion that testatrix was feeble- minded.-^" And a non-expert witness was allowed to testify to a conversation with testator about four years before the date of his will, and upon that as a basis give an opinion as to his sanity.^^^ In some jurisdictions, if not all, a different rule exists for lavins: a foundation for an opinion of sanitv from that which is required for an opinion of insanity. Any old acquaintance who has had opportunities for knowing testator's mental con- dition can testify that he believes that testator was sane; but before a non-expert witness, who is not a subscribing witness, can give his opinion that testator was insane, he must give the facts upon which he bases his opinion, which facts must fairly justify the inference of insanity.^^^ But if the witness shows 208 Stanley's Appeal, 62 Conn. and intimate acquaintance with an- 325 ; Newcomb's Exrs. v. aSTewcomb, other to enable the formation of a 96 Ky. 120; Prentis v. Bates, 93 correct judgment as to the mental Mich. 234; Foster v. Dickerson, 64 condition of such other person a Vt. 233. (non-expert) witness may give his 209 Ethridge v. Bennett's Execu- opinion that the person is- of sound tors, 9 Houst. (Del.), 295. mind. Sanity is thje normal condi- 210 Zn re Fenton's Will, 97 lo. tion of mankind. . . . ]^92. To authorize a non-expert to give 211 Bower v. Bower, 142 Ind. 194. his opinion of the existence of an 212 Murphree v. Senn, 107 Ala. unsound condition of mind he must 424; Lamb v. Lippencott, 115 INIich. not only have had the opportunity 611; Prentis v. Bates, 93 Mich. to form a judgment, but he must 234; Buvs v. Buvs. 99 Mich. 354; state the facts on which it is based." O'Connor v. Madison, 98 Mich. 183. Burney v. Torrey, 100 Ala. 157. "Where there has been that long 466 T.AW OF WILLS. that he has not the means of forming an opinion he will not be allowed to state his opinion. Thns, a witness who had not commnnicated with testator for five years out of the last nine of his life was not allowed to give his opinion as to testator's sanity during those nine years.^^^ In Massachusetts it is held that a witness, who is neither an expert nor a subscribing witness, can not give his opinion as to testator's sanity, no matter what his opportunities for observation.^^ ^ Where the non-expert witness has some means of forming an opinion, the value of his evidence depends on his oppor- tunities for forming an opinion.^^^ If the witnesses testify that testator is insane, but give as a basis for such opinion facts which do not justify it, their evidence on this point is worthless, and can not support a verdict in favor of con- testants.^-^ ^ §391. Form of questions not calling for opinion. In order to direct the mind of a witness who is being ex- amined as to the conduct and behavior of testator, to the par- ticular kind of conduct or behavior to be testified to, it is often necessary to characterize such conduct as 'peculiar,' 'extraordinary' and the like, and ask if such kind of conduct was observed. Such questions, if properly framed, are not 213 Denning v. Butcher, 91 lo. edge and skill to judge intelligently, 425. as to which every unskilled wit- 214 Smith V. Smith, 157 Mass. ness has a different standard, and 389. (Where the witness had known which can be quite as well under- testator for twenty years.) See stood by the court or jury from the long line of cases cited upon proof of the details of the acts this point in Massachusetts courts. and conduct of the person whose In this case an earnest but fruit- mental capacity is in question." less effort was made to induce the Hastings v. Rider, 99 Mass. court to overrule its previous deci- 622, cited and followed in Smith v. sions and follow the weight of au- Smith, 157 Mass. 389. thority. ^^^ Merriman's Appeal, 108 Mich. "They are not facts but opin- 454. ions of those having no peculiar 216 Sanders v. Blakeley, (Ky.) duty or capacity to form them upon (1900), 55 S. W. 10. a matter requiring special knowl- T.AW OF WILLS. ^^' objectionable as calling for an opinion. They are merely questions as to facts observed, and if they were not allowed, it would be practically impossible to get them before the jury without ooing over each occasion when witness saw testator in his wliole life. Accordingly, it is not calling for an opin- ion to ask a non-expert witness if he noticed any difference in the appearance of testatrix between the first time he saw her and the last, indicating mental strength or weakness.^^^ I^or is it calling for an opinion to ask a witness Avho had testified that testator had been on a particular occasion ''making faces and slapping himself and making manoeuvers" if he saw "anything strange or unusual in his conduct,''-^ ^ nor to ask if on a certain occasion when testator had transacted business he acted in a rational manner ;2^9 or if he saw anything to indicate mental unsoundness."^'^ But the question put to witness must not be so expressed as to usurp the functions of the jury. Thus, it is not proper to ask a witness if certain accusations of theft made by tes- tatrix against her neighbors were not understood by witness to be '^improbable and impossible." ^-^ §392. Form of questions calling for opinion. The form of the question which calls for an opinion as to testator's sanity from a. Avitness competent to give an opinion, and the nature of the opinion thus called for, are very im- portant topics in the actual trial of a case. A form not infrequent is something like this: "In your judgment was testator competent to make a will ?" This form finds justification in the language used in many cases where the precise point has not been presented for con- sideration,222 but it is inherently vicious, as it presupposes 217 Manatt v. Scott, 106 lo. 203. 222 Ethridge v. Bennett, 9 Hoiist. 2isPetefish V. Becker, 176 111. (Del.), 295. (Where the objection 448, was not to the form of the question 219 In re Wax's Estate, 100 Cal.' but to the admissibility of the opin- 343 ion and the question 'what was her 220 Kimberly's Appeal, OS Conn. capacity to make a will' was held 428. to be proper.) 221 Titus V. Gage, 70 Vt. 13. 468 LAW OF WILLS. that the witness knows what degree of capacity the law re- quires in order that testator may make a valid will, and in addition to the opinion of the witness as to testator's sanity, such a question calls for the opinion of the witness as to the law.--^ Accordingly the courts which have considered this exact point have held that such question is improper, and should not be allowed.^-'* So the witness can not be asked if testator had "mental capacity to make a will" or any sim- ilar form of question which assumes that the witness knows what the legal requirement of testatmentary capacity is.^^^ IsoY is it j^roper to ask a non-expert witness if, in his opinion, the testator was capable of transacting ordinary business.^"^ Some courts hold that the expert should be asked simply to state his opinion of testator's capacity in his own language.^^^ Or he may be asked, ""Was the testator, in your opinion, ca- pable of planning and executing such a paper as is here offered as his will ?" ^^^ But it was held that a subscribing witness could not be asked if testatrix had strength of mind sufficient to comprehend a clause creating charitable trusts.^-^ 223 "What degree of mental capa- city is necessary to enable testator to make a valid will, to what ex- tent and with what degree of per- fection he must understand the will, and the persons and property af- fected by it, or to what extent his mind must be impaired to render him incapable, is a question of law exclusively for the court, with which witnesses have notliing to do." Kempsey v. McGinniss, 21 Mich. 123, cited in Brown v. Mitchell, 88 Tex. 350. 224 Walker v. Walker, 34 Ala 469; Schneider v. Manning, 121 111 376; White v. Bailey, 10 Mich. 155 Kempsey v. McGinniss, 21 IMich 123; Buys v. Buys, 99 Mich. 354 Farrell v. Brennan, 32 Mo. 328 Clapp V. Fullerton, 34 N. Y. 190 Hewlett V. Wood, 55 N. Y. 634; Runyan v. Price, lu O. S. 1; Gib- son V. Gibson, 9 Yerg. 329 ; Brown V. 3Iitchell, 88 Tex. 350; In re Blood's Will, 62 Vt. 359; 19 Atl. 770. 225]\Iay V. Bradlee, 127 Mass. 414; Hall v. Perry, 87 Me. 569; Kempsey v. McGinniss, 21 Mich. 123; Crowell v. Kirk, 3 Dev. 355; Fairchild v. Bascomb, 35 Vt. 398. 226 Torrey v. Burney, 113 Ala. 496. 22- Crowell V. Kirk, 3 Dev. (N. Car. ) , 355 ; Fairchild v. Bascomb, 35 Vt. 398. 228 Beaubien V. Cicotte, 12 Mich. 459; Kempsey v. McGinniss, 21 Mich. 123. 229 "It involved an opinion on a subject about which jurors and wit- nesses might have differed, and which would not furnish a safe standard for comparison." Melaney V. Morrison, 152 Mass. 473. LAW OF WILLS. ^"" Another form that has been approved is: "What would you say as to whether at that time her mind was clear ?" ^^o §393. Tims at which opinion must exist. The subscribing witness should be examined as to his opin- ion concerning the capacity of testator which he held at the date of the execution of the wiU.^^^^ The opposite view is held in Ohio. The witness must there be examined as to the opin- ion of testator's sanity entertained by him at the date of examination.232 j^ ^^s been held that evidence may be in- troduced to show that prior to testator's death contestant reo-arded testator as mentally competent to do business.^ -^^ §394. Time to which evidence must relate. The evidence in questions of capacity must be, as in other eases, confined to the point at issue. This point is the con- dition of the testator at the time that he made the will.^^^ This is the ultimate fact to be established. But in order to place the condition of testator's mind clearly before a jury ar a court it is necessary to receive evidence of his condition before and after the time of the execution of the will. Any other rule would leave those who were present at the time of the execution as the only witnesses whose evidence would be admissible as to capacity, and would render fraud easy and safe. Accordingly evidence of the mental condition of tes- tator, both before and after the execution of the will, is ad- missible to show his condition at the moment of making the will.2^^ Thus, evidence of the condition of testatrix upon 230 McHugh V. Fitzgerald, 103 233 Sim v. Russell, 00 To. G56. -^[ch. 21. 234 Smith v. Day (Del.), 45 Atl. 23iEthridge v. Bennett, 9 Houst. 39G ; Harp v. Parr, 1G8 111. 459; (Del.), 295; Gwin v. Gwin (Ida.), Von de Veld v. Judy, 143 Mo. 348. 48 Pac. 295; In re Will of Ingalls, 235 Moore v. Heincke, 119 Ala. 148 111. 287; Williams v. Spencer, 627; 24 So. 376; Moore v. Spier, 150 Mass. 346 ; citing Poole V. Rich- 80 Ala. 129; Terry v. Buffmqton, ardson, 3 Mass. 330; Robinson v. 11 Ga. 337; Green v. Green. 145 Adams, 62 Me. 369. HI. 264; Harp v. Parr, 168 111. 232 Runyan v. Price, 15 0. S. 1. 470 LAW OF WILLS. the evening of the day that she made her will,^^^^ j^^^j evidence, of condition within four days of tlie execution of the will,-^^ or for five months before and eleven months after the execu- tion of the will, has been held admissible.^^^^ So, where the disease was of long standing and progressive development, evi- dence of the action and manners of the testator for a period of six years after making the will was admissible.^^^ The courts have gone so far as to intimate that in a proper case the whole life of testator may be gone into, in order to determine his mental condition at the time that he made his wilL^-io The right of one party to go into. the history of testator's life for a given period is especially clear where the adversary party has been allowed to go over the same period.^"*! And where the court has of its o^^^l motion charged as to the effect of testator's conduct prior to the execution of his will upon the validity of such will, it is error for the court to refuse a correct charge as to the effect of testator's conduct subsequent to the execution of said will.^'*^ The right to go into the history of testator's life is within the reasonable control of the court, however. It was held not to 1)0 error for the trial court to limit evidence of specific acts tending to show unsoundness of mind to a period reaching from eight years before the will to two and one-half years after, even though experts testified that they could give a better estimate of his condition if the time limit were ex- tended.2^3 459; Moore v. Gubbins, 54 111. App. 237 Moore v. Gubbins, 54 111. App. 1G3. 238 Messner v. Elliott, 184 Pa. St 41. 239 Bever v. Spangler, '93 lo. 57G. 240 Dale's Appeal, 57 Conn. 127 ; Ross V. McQuiston, 45 lo. 145; Shailer v. Bumstead, 99 Mass. 112. 163; Stoser v. Hogan, 120 Ind 207 ; Bower v. Bower, 142 Ind 194 ; Bever v. Spangler, 93 lo. 576 Von de Veld v. Judy, 143 Mo 348; Hegney v. Head, 126 Mo. 619: Turner v. Cheesman, 15 N. J. Eq 243; Messner v. Elliott, 184 Pa St. 41; Reichenbach v. Ruddach, 2.41 Petefiali v. Becker, 176 III 127 Pa. St. 564; Mitchell v. Cor- 448. pening, 124 N. Car. 472. 2*2 Lamb v. Lynch, 56 Neb. 135. 236McHugh V. Fitzgerald, 103 243 Howes v. Colburn, 165 Mass. Mich. 21. 385. LAW OF WILLS. 471 But where the evidence is not such as to throw light upon the condition of testator at the time of making the will, it is inadmissible. Thus, evidence of an insane delusion is inadmissible to show the condition of testator's mind where the evidence shows that the will was made long before the delusion existed.^^'* And the record of the appointment of a guardian two or three years after the execution of the will is inadmissible.^^^ §395. Evidence of insanity of testator's relatives. It is proper to admit evidence tending to show that the an- cestors of testator suffered from a type of insanity which was hereditary in its character,^"'^ as it is also to admit evidence of the insanity of the sister and niece of testatrix when such insanity was of a type which might be hereditary.^^''^ But unless the evidence tends to show that the insanity of testator's ancestors or relatives was of a type that might be transmissible by inheritance, evidence of such insanity is in- admissible. So evidence that the father of testator had been so given to habits of intoxication that he became insane therefrom is inadmissible to show that testator was insane. ^^^ And evi- dence that the father of testatrix was intemperate in his youth was inadmissible where no medical expert evidence was intro- duced to show that such intemperance might result in hered- itary insanity.^'*® §396. Evidence of res gestae of execution. The facts and circumstances of the execution are admis- sible in evidence as reflecting upon the capacity of testator. Thus, a conversation at the time of execution between persons 244 Merriman's Appeal, 108 Mich. ton, 28 111. 300; Baxter v. Abbott, 454, distinguishing Haines v. Hay- 7 Gray (Mass.), 71. den, 95 Mich. 332, 247 Prontis v. Bates, 93 Mich. 234. 2-in Entwistle v. Meikle, ISO 111. 24s Keichenbach v. Ruddaeh, 127 9. Pa. St. 504. 24sCoughlin v. Poulson, 2 Mc- 249 Titus v. Gage, 70 Vt. 13. Arthur (D. C), 308; Snow v. Ben- 472 I'AW OF WILLS. there present with reference to the condition of testatrix is admissible as part of the res gestae. 250 S397. Conduct of testator. o Among the facts of the life of testator which may be in- quired into to determine his capacity, his business transac- tions and dealings are of great importance. Some courts go so far as to say that "it is a rule of law that a person who \& capable cf transacting ordinary business is capable of making a valid will."^^^ And when this statement is made, as in these cases, of a person not suffering under an insane delu- sion, it is clearly correct. Accordingly evidence of the nature and extent of the business transactions carried on by testator during the period when contestants claim that he was incom- petent to make a will is admissible.-"" Thus, a witness may testify to the details of a business transaction, and testify that testator performed this business like a rational man;^^^ and it is admissible to show that testator did not make out his own tax lists for two years after he made his will, and in troduce the tax lists made out for him;-^** and to show tha, a person, whose unsecured note testator accepted in place of a mortgage, owned no property except such as was exempt.^^" A witness may testify to specific acts of testator from which insanity may be inferred without being called on for his opinion of the insanity of testator.^"® But evidence which fails to tend to show that testator acted in an irrational manner may be excluded if offered by con- testants, as it can not aid them to establish the issue on their 250 Kostelecky V. Scherhart, 99 lo. 252 Wax's Estate, 106 Cal. 343; 120. Morris v. Morton's Exr's, — Ky. — ; 251 Entwistle v. Meikle, 180 111. 20 S. W. 287 ; Bonnemort v. Gill, 9, quoting and approving Meeker 165 Mass. 493; In re Cox's Estate, V. Meeker, 75 111. 260, and citing 167 Pa. St. 501 ; Messner v. Elliott, Lilly V. Waggoner, 27 111. 395; 184 Pa. St. 41. Myatt V. Walker, 44 111. 485 ; Brown 253 Wax's Estate, 106 Cal. 343. V. Riggin, 94 111. 560; Campbell v. 254 Bower v. Bower, 142 Ind. 194. Campbell, 130 111. 466; Greene v. 255 Titus v. Gage. 70 Vt. 13. Greene, 145 111. 264; also Harp v. 256 Bower v. Bower, 142 Ind. 194. Parr, 168 111. 459. 473 LAW OF WILLS. „n,-t to he established. Thus, the fact that testatrix once paid Ttt a cUn a child as heir of her husband's estate rather than have litigation over her husband's will is no adnus- iTe- Nor ts evidence that testator was absentn>tnded, and :!s sad a,Kl afflicted over the death of h.s w>fe suffietent to show a lack of testamentary capacity. As the law does not in any case require ability to manage complicated business, evidence that testator was not able to mau- ao-e complicated business is not admissible." ° E .idence that persons failed to persi.de testatrix ^ qui the use of opium, and that testatrix talked foolishly on this Z>Z has been held admissible; while evidence that tes- ;Sadually came to use more whiskey in the later years of her life is held inadmissihle.^^^ In determining testator's capacity to make a will evidence is admissible eoncei-ning the weakness of his memory and bi. thet mental trait..- In order to show Uie ^^J^^^ of testatrix, it is proper U> show jiow she acted when suJ. mental condition was spoken of.^'*" §398. Ability to answer questions. ' It mav be here observed that the ability to answer ques- tions does not of itself show that the testator poss^ses the men .tal ability requisite for testamentary capacity. §399. Sudden change of feeling. The fact that testator apparently changed his feelings for a natural object of his bounty in a comparatively short time o . . .„ 14^ Til 26S Feiiton's Will, 97 lo. in2. ^,, Pooler v. Cr.tnmn 4 III. ^^^ _^^ ,^^^ ^ ^^^_^._^_^ ^_^ ^^ ,,^ ^ 405. amrmmg 45 111. App. 66*. , , n ,, T„T,cratp 95 Kv. 208 25S Ouachita Baptist College v. Mendenhall v. Tungate J5 Ky. .Tai Qdo (ability to answer "yes' and no ). Scott, 64 Ark. 349 ^ ^ ^^^^^_ ^^ ^,^_ 849: 19 ..pMaddox V. Maddox, 114 Mo. Cha^ ^^^^ ^^^.^.^^^ ^^ ^^^^^^ ^^^.. ^^' .r T^iUnff 184 Pa St narv questions); Baker v. Baker, 260Messner v. Elliott, 184 Fa. bt. ^^^ ^,^ ^26: 78 N. W. 453 (abil- *^- _, -n 1,. 1^-^ Til '>69- itv to answer "yes" and "no") ; .Of Daly v^ Daly, 183 111. tucker v. Sandidge, 85 Va. 546. 55 N. E. 6a. 474 LAW OF WILLS. and without any apparently adequate cause, has been held not admissible as tending to show the existence of an insane de- lusion with reference to such person if unsupported by other evidence of such delusion.^^^ §400. Declarations of testator. Any declarations of testator which tend to show the con- dition of his mind at the time that he made his will are ad- missible to determine his mental capacity at that date.^*^^ So, statements made by testator relative to his intention of disposing of his property are admissible, not for the purpose of contradicting the contents of his written will, but to show his state of mind at the time that he executed such will."^^ Letters written by testator are admissible, not as evideiioe of the facts stated therein, but to show the state of mind of testatoy.^*^^ So is a sworn answer in a suit against testatfix in which she swore that she was weak and unable to read, write or transact business prior to the date of the wCU;^^^ and so are entries in a diarv made bv testator"*^^ 264 Riley v. Sherwood, 144 Mo. 354; McGovran's Estate, 185 Pa. St. 203. Contra, Manatt v. Scott, 106 lo. 203. 265 Coghill V. Kennedy, 119 Ala. 641; 24 So. 459; Ball v. Kane, 1 Penne. (Del.), 90. ("I did not make it. Jimmie and the old wo- man made it," was the declaration admitted) ; Barbour v. Moore, 4 App. D. C. 535; Mallery v. Young, 94 Ga. 804; American Bible Soci- ety V. Price, 115 111. 623; Reynolds V. Adams, 90 111. 134; Hill v. Bahrns, 158 111. 314; Manatt v. Scott, 106 lo. 203 : Bever v. Spang- ler, 93Io. 576; Stephenson v. Steph- enson, 62 lo. 163; Bates v. Bates, 27 lo. 110; Goldthorp's Estate, 94 lo. 336; Lane v. Moore, 151 Mass. 87; Sheehan v. Kearney (Miss.), 21 So. 41 ; Potter's Will. 161 N. y. 84; Waterman v. Whitney, 11 N. Y. 157; Burns's VVill, 121 X. Car. 336 ; McTaggarr v. Thompson, 14 Pa. St. 149 ; Mclmosh v. Moore, (Tex. Civ. App.) 1899; 53 S. W. 611; Kirkpatrick v, Jenkins, 9fl Tenn. 85; Barney's Will, 71 Vt 217. 266 Scale V. Chambliss, 35 Ala. 19; Bundy v. McKnight, 48 Ind 502; Bever v. Spangler, 93 lo. 576; Estate of Lefever, 102 Mich. 568;. Hammond v. Dike, 42 Minn. 273; Prather v. McClelland, 76 Tex. 574. 267 Bulger V. Ross, 98 Ala. 267 ; Slingoff V. Bruner, 178 111. 561: Harp V. Parr, 168 111. 459 ; Wood- ward V. Sullivan, 152 Mass. 470; In re Brunor, 47 N. Y''. S. 681 : :vic- Ninch V. Charles, 2 Rich. (S. Car.), 229: Foster v. Dickerson, 64 Vt. 233; Blakeley's Will, 48 Wis. 294. 26S Manatt v. Scott, 106 lo. 203. 2C9 Barber's Estate, 63 Conn. 393. LAW OF WILLS. 475 Under this general rule his oral declarations which tend to show his condition or state of mind at the time that he made his will are admissible in evidence. For this purpose it makes no difference whether testator's declarations were made at the time of the execution of the will or at other times be- fore or after, provided that the time was so near to the time of execution that the declarations offered tend to show testa- tor's mental condition at that time.* The declarations of tes- tator may be made before the execution of the will,^'^*^ or they may be made after the execution of the will in question.^'^^ Previous wills executed by testator when sane have been held to be admissible, upon the theory that such will tends to show the fixed and settled purpose of testator, and any sudden change in such purpose without adequate cause may be evidence from which insanity may be inferred ; while a per- sistence in a purpose formed when sane may be evidence that, until the time of the execution of the latest will, testator re- mained sane."^^ This theory is ignored in a recent Texas case, where it is said that on an issue solely as to mental capacity it is inad- missible to introduce a previous will unless it was drawn under such circumstances as make it admissible as a declara- tion.^^^ The declarations of testator as to the conduct of a son, made *Petefish V. Becker, 176 111. 448; Will, 121 N. Car. 336; Kirkpat- Hill V. Bahrns, 158 111. 314; Taylor rick v. Jenkins's Exr's, 96 Tenn. V. Pegram, 151 111. 106; Craig v. 85. Southard, 148 111. 37. 272 Barlow v. Waters, — Ky. 2T0Goodbar v. Lidikey, 136 Ind. (1894); 28 S. W. 785, citing and 1; Manatt v. Scott, 106 la. 203; following Harrison's Will, 1 B. Mon. Estate of Lefever, 102 Mich. 568; (Ky.), 351; Carrico v. Neal, 1 Sheehan v. Kearney, — Miss. — ; Dana (Ky. ), 162; to the same effect 21 So. 41 ; Rambler v. Tryon, 7 S. are Hughes v. Hughes, 31 Ala. & R. (Pa.) 90; In re Burns's Will, 519 (overruling Roberts v. Tra- 121 N. Car. 336; Chappell v. Trent, wick, 13 Ala. 68) ; Love v. Johnson, 90 Va. 849. 12 Ired. (X. Car.), 355; Taylor v. 271 Ball v. Kane, 1 Penne, (Del.), Pegram, 151 111. 106; Nieman v. 90; (Del.), 39 Atl. 778: Dennis v. Schnitker, 181 111. 400; Hammond Weekes, 51 Ga. 24; Hill v. Bahrns, v. Dike, 42 Minn. 273. 158 111. 314; Sheehan v. Kearney, 273 Brown v. Mitchell, 87 Tex. — Miss. — ; 21 So. 41; Pratte v. 140; 88 Tex. 350. CofTman, 33 Mo. 71; In re Burns's 476 LAW OF WILLS. to the attorney who was taking the instructions of testator for drawing up his will, as a reason for disinheriting such son, do not show an insane delusion. ^^'^ As has been stated, the evidence must tend to show testator's condition at the time that he executed his will.^'''^ In every case the declarations offered in evidence must be such as, in view of the other evidence in the case, tend to es- tablish the state of mind of testator at the time that he made the will in question. !N"o hard and fast rule can be laid down as to the distance in point of time from the date of the will the declarations may be. In one case declarations made five or six years before the date of the will as to what testator meant to do with his property were held to be too remote.^'^*' The declaration must, moreover, be of such sort as to tend to show the state of mind of the testator at the time that he made the will. Thus, where testator had once, years before the date of his will, said that the law made a good enough will for him, and no other evidence of his intention ap- peared, such declaration was held inadmissible.^^''^ The dec- larations of testator made at least seventeen years before the execution of his will are inadmissible.^"^ And in another ease, declarations made three years after the date of the will, which did not concern the mental ea])acity of testatrix at the date of the will, were held to be inadmissible.^'''^ §401. Declarations of legatees, devisees, and contestants. It is so well settled as a principle of evidence that declara- tions which make for the interest of declarant are not admis- sible upon the sole ground of their being his declarations, that accordingly, without discussion, it may be assumed that the declarations of a devisee or legatee under a will, which decla- 274 Kidney's Will, 33 N. B. 9. 397, followed in Pyle v. Pyle, 158 275 See Sec. 394. 111. 289 ; a similar ruling was made 276Bonnemort v. Gill, LGS Mass. in Hill v. Bahrns, 158 111. 314. 493; Langford's Estate, 108 Cal. 278 Langford's Estate, 108 Cal. 608 (declarations made seventeen G08. years before held too remote). 2-9 Crocker v. Chase, 57 Vt. 413. 277 Rutherford v. Morris, 77 111. LAW OF WILLS. 477 rations are to the effect that testator was competent to make a will, are inadmissible. The question of the admissibility of the declarations of a beneficiary nnder the will, which declarations are to the effect that testator was insane at the time of making the will, or otherwise was incompetent, is a matter of considerable com- plexity. It is held that declarations made before any interest arose nnder the will by one who after the time of such decla- rations becomes a beneficiary, are inadmissible upon the famil- iar principle of law that snch declarations were not adverse to his interest when they were made.^**^ The execution of the will is pointed out as the time when the interest arises. "These declarations may have been made before the execution of the will, and therefore at a time when the legatees whose interests arise out of the will had no interest to be affected by the declarations." -^^ Where declarations adverse to the competency of testator were made by a devisee or legatee after their interest arose, the only objection to their admissibility is that the declarations of one devisee or legatee, even if admissible against himself, should not be admitted against other devisees or legatees whose in- terests are separate from those of the one who made the ad- mission. Accordingly, where the legatee is the sole benefici- ary under the will, his declarations aiid admissions adverse to the competency of the testator, and made after legatee's interest arose, are held to be admissible.^^^ But where there are several devisees or legatees whose interests are several, and not joint, the weight of authority is that the declarations and admissions of one of these devisees and legatees are not admissible, as if admitted they would operate to the prejudice 280 7,^ re Ames's Estate, 51 lo. 2S2 Egbers v. Egbers, 177 111. 82; 596; Thompson v. Thompson, 13 0. Wallis v. Luhring. 134 Ind. 447; S. 356; Burton v. Scott, 3 Rand. 34 N. E. 231; Brick v. Brick, 66 (Va.), 399. N. Y. 144. 281 Thompson v. Thompson, 13 O. S. 356 ; Burton v. Scott, 3 Rand. (Va.), 399. 478 lAw OF WII.LS. of the other devisees.-^^ But in some jurisdictions the decla- rations of one of several legatees are admissible whenever similar declarations made by a sole legatee would be admis- sible.-^^ When the feeling of the contestant towards testator is mate- rial, the declarations of the contestant expressing such feelings are admissible, even if it is not shown that testator was in- formed of such declarations.^^^ §402. Adjudication of insanity and record of guardianship. We have already seen that one adjudicated insane and under guardianship may be capable of making a valid wall, but that such guardianship is prima facie evidence of his in- capacity. Accordingly, the record establishing the existence of the guardianship on the ground of insanity, or adjudging testator insane, is admissible in evidence, and makes a prima facie case of testator's incompetency from the date of the guardianship and during its continuance.-^^ And very clear evidence is required to overthrow the presimaption of insan- ity arising from such an adjudication.-^''' But the record of a guardianship which did not exist for several years after the will is inadmissible to show a want of mental capacity at the date of making the will.^^^ 283 Blakely v. Blakely, 33 Ala. 284 Williamson v. Xabers, 14 Ga. 611; Appeal of Livingstone, 63 28G; Beall v. Cunningham, 1 B. Conn. 68; Campbell v. Campbell, Mon. (Kv.), 399; Peebles v. Ste- 138 111. 612; McMillan v. McDill, vens, 8 Rich. (S. Car.), 198. 110 111. 47; Roller v. Kling, 150 285 Stevens v Leonard, 154 Ind. Ind. 159; Phelps v. Hartwell, 1 67; 56 N. E. 27. Mass. 71 ; Shailer v. Bumstead, 99 286 Estate of Johnson, 57 Cal. Mass. 112; Estate of Lefever, 102 529; Harrison v. Bishop, 131 Ind. Mich. 568; Thompson v. Thompson, 161; In re Fenton's Will, 97 lo. 13 0. S. 356; Roush v. Wensel, 15 192; Rice v. Rice, 50 Mich. 448; Ohio C. C. 133; Titlow v. Titlow, 54 Hamilton v. Hamilton, 10 R. I. 538. Pa. St. 216; Fairchild v. Bascomb, 287 Stevens v. Stevens, 127 Ind. 35 Vt. 398 ; Whitelaw v. Whitelaw's 560. Adm'r, 96 Va. 712; 32 8. E. 4.58 ; 2ss Entwistle v. Meikle. 180 111. In re Goldthorp's Estate, 94 lo. 336 ; 9. Parsons v. Parsons, 66 lo. 754; Dye V. Young, 55 lo. 433 ; In re Ame? 51 lo. 596. LAW OF WILLS. 479 In some jurisdictions it is held that an adjudication of lu- nacy is conclusive as to the mental condition of testator at the date of the adjudication, and that only evidence to show a cure after such adjudication is admissible.^^^ The record of discharge from a guardianship of insanity as cured i& further only prima facie evidence of such cure.^^" §403. Miscellaneous questions of evidence. Evidence of the opinions of testator's sanity entertained by persons who are not called as witnesses is hearsay and inad- missible.^^^ Thus, evidence that the bo^'s on the street made fun of testatrix was held inadmissible."^^ The photograph of testator is not admissible on the issue of capacity.^^^ Since an insane delusion is not based on evidence, the ques tion of whether a peculiar belief of testator's had any apparent fomidation in fact or not is material, and evidence on that point is admissible.^^'* Thus, where testator's alleged insane delusion was as to his wife's infidelity, the evidence of the alleged adul- terer as to her innocence was admissible.^^^ IV— EVIDENCE OF UNDUE INFLUENCE. §404. Evidence of undue influence largely circumstantial. As undue influence is generally employed surreptitiously, the evidence by which it is established is, in a very large degree, 289 In re Hoopes's Estate, 174 Pa. 293 Varner v. Varner, IG Ohio Cir. St. 373. Ct. 38G. '-ooFenton's Will, 97 la. 192. 204 Titus v. Gage, 70 Vt. 13: 291 Townsend v. Peperell, 99 Mass. Burkliart v. Gladish, 123 Ind. 337. 40; Brinkman v. Paieggesick, 71 Mo. 295 Burkhart v. Gladish, 123 Ind. 553; Vance v. Upson, 66 Tex. 476. 337. 292/11 re Hine, G8 Conn. 551. 480 LAW OF WILLS. circumstaiitial,^'^'^ and the question of undue iniluence is espe- cially one for the jurj.^^^ §405. Burden of proof. Upon the issue of undue influence the burden of proof, as established by the weight of authority, is upon the party alleg- ing it; that is, upon the contestant. In this sense the burden of proof is the duty of establishing the issue by a preponder- ance of the evidence.^^^ Undue influence is not presumed in absence of evidence to warrant such presumption. ^^^ Whe7-e the evidence discloses nothinc: more than a motive to exert ivndue influence and an 290 "From the natme of the case, the evidence of undue influence is mainly circumstantial. It is not unsually exercised openly in the presence of others so that it can be directly proven. But the cir- cumstances relied on to show it, must be such as, taken altogether point unmistakably to the fact that the mind of the testator was sub- jected to that of some other per- son so that the will is that of the latter and not of the former." Stor- er's Will, 28 Minn. 9, quoted in Hess's Will, 48 Minn. 504; Camp- bell V. Barrera, Tex. Civ. App. 32 S. W. 724. 29T Caven v. Agnew, 186 Pa. St. 314. 298 Fitch's Estate, 26 N. S. 195; Chandler v. Jost, 90 Ala. 59G; Bulger v. Ross, 96 Ala. 267 ; Liv- ingstone's Appeal, 63 Conn. 68; Rockwell's Appeal, 54 Conn. 119; Allison's Estate, 104 la. 130: Web- ber V. Sullivan, 58 la. 260 ; Johnson V. Stevens, 95 Ky. 128; Barlow v. Waters, — Ky. — ; 28 S. W. 785; Sheehan v. Kearney, — Miss. — ; 21 So. 41 ; 35 L. R. A. 102 ; Prentis V. Bates, 93 Mich. 234; 17 L. R A. 494; Gay v. Gillilan, 92 Mo 250; Maddox v. Maddox, 114 Mo 35; Carl v. Gabel, 120 Mo. 283 Berber et v. Berberet, 131 Mo. 399 Morton v. Heidorn, 135 Mo. 608 Doherty v. Gilmore, 136 Mo. 414 Gordon v. Burris, 141 Mo. 602 Riley v. Sherwood, 144 Mo. 354 Tibbe v. Kamp (Mo.), 54 S. W 879; 55 S. W. 440; Stewart v Stewart, 56 X. J. Eq. 761 ; Salter V. Ely, 56 N. J. Eq. 357 ; Runyan v. Price, 15 O. S. 1; 86 Am. Dec. 459; Messner v. Elliott, 184 Pa. St. 41; Yorke's Estate/ 185 Pa. St. 61 ; McGraw's Will, 41 N. Y. Supp. 481 ; Van Ormen v. Van Ormen, 58 Hun, 606; Seebrock v. Fedawa, 30 Neb. 424 ; Chappell v. Trent, 90 Va. 849; McMaster v. Scriven, 85 Wis. 162; Armstrong v. Armstrong, 63 Wis. 162. 299 Post V. Mason, 91 N. Y. 539; Baldwin v. Parker, 99 Mass. 79; Kei'rigan v. Leonard, N. J. Eq. ; 8 Atl. 503; Rutherford v. Morris, 77 111. 397; Carpenter v. Hatch, 64 N. II. 573; 15 Atl. 219. LAW OF WILLS. 481 opportunity to exert it, there is a failure of proof of undue influence ;^*^^ and so, where the circumstances of execution, though suspicious, were perfectly consistent with a freedom, from undue influcnce.^'^^ The doctrine that the burden of proof should rest upon con- testant has been sharply criticised by some of our ablest text- books. But, while undue influence in jurisdictions where the only issue is devisavit vel non assumes the form of a traverse, in reality it admits the capacity and formal execution and relics upon new matter. In this point it is like a defense of duress in contract law, u]:)on which issue there is no doubt that th(3 burden is upon the party alleging it. The only consistent theory upon which the doctrine that the burden of proof rests ui)on the parties alleging it could be crit- icised is this : The right to make a will depends on statute. The class specified as competent to make a will is that of per- sons of full age, sound mind and memory and not under re- straint. It might be urged that a party offering a will must establish every fact necessary to bring the case within the wills act. Similar reasoning has been employed to uphold the theory that proponent must establish the sanity of testator, but never, as far as observed, has it been employed in cases of undue in- fluence to place the burden of proof upon proponents. §406. Shifting the burden of proof. But wliilo the courts are unanimous upon this proposition, as a fundamental rule, it is sometimes said that, when circum- stances of suspicion exist, the burden shifts to the beneficiaries imder the will to show that there was no undue influence. ^''^ sooMcFadin v. Catron, 138 Mo. Eq. 428; Fritz v. Turner, 46 N. J. 197; Doherty v. Gilmore, 13fi Mo. Eq. 515. 414; Maddox v. Maddox, 114 Mo. 302 Tyrrel v. Painton (1894), 35; Eedlow's Will, 67 Hun, 408; Prob. 151 ; 6 Rep. 540, citing Barry Phalen's Will, 47 N. Y. S. 44; v. Butlin, 2 Moore P. C. 480; Fui- McMaster v. Scriven, 85 Wis. 162; ton v. Andrew, L. R. 7 H. L. 448; Trezevant v. Rains, 85 Tex. 320. Brown v. Fisher, 63 Law T. (N. 301 Howell V. Taylor, 50 X. J. S.), 405; Slieehan v. Kearney, — 482 LAW OF WILLS. Thus, in a recent Iowa case it was said that the burden of proof does not shift to proponents until evidence is introduced sufficient "to warrant the presumption that the will was not the free act of testator, as in a case like that at bar, that the con- fidential agent and legatee Avas actually instrumental in the dictation and procurement of the execution of the will."* Thus, it has been held that where the evidence discloses that a beneficiary under a will to the exclusion of other children of testator was a son who occupied a relation of trust and especial confidence Avith his father, the testator, a presumption arises that such Avill was obtained by undue influence.^°^ A like pre- sumption arises where the evidence shows that the devise was made entirely on account of the confidential relations between testatrix and doAnsee.^*^"* It is even said that the fact that the beneficiaries procured the Avill, and were in a position to exercise undue influence, shifts the burden to them to shoAv that there Avas no undue in- fluence.^°^ So, AAdiere the beneficiaries take an active part in preparing the Avill, the burden is said to be shifted upon them to shoAV an absence of undue influence. ^*^^ But thf; facts that testatrix Avas eighty-six years old, and made a Avill in faA^or of her niece, Avhose husband was her confidential adviser, are not enough to shift the burden of proof Avhere the evidence shoAvs affirmatiA^ely that testatrix had a clear under- standing of the transaction, and the husband of the niece Avas absent Avhen the Avill Avas made.^^^ Where the CAddence fails to show the existence of confidential relations between proponents and testator, it is error to charge Miss — ; 21 So. 41; Hegney v. Head, * Denning v. Butcher, 91 lo. 425. 126 Mo. 619; McFadin v. Catron, 303 Miller v. Miller, 187 Pa. St. 120 Mo. 252; 138 Mo. 197; Stew art V. Stewart, 56 N. J. Eq. 761 Claffey v. Ledwith, 56 N. J. Eq 333; Dale v. Dale, 38 N. J. Eq 274; Waddington v. Buzby, 43 N J. Eq. 154; 45 N. J. Eq. 173; Mil ler V. Miller, 187 Pa. St. 572 ; Chap pel V. Trent, 90 Va. 849; Whitelaws V. Sims, 90 Va. 588. 572. 304Messner v. Elliott, 184 Pa. St. 4L 305 Wright V. Jewell, 9 Manitoba, 607. 306 Chandler v. Jost, 96 Ala. 596. 307Yorke's Estate, 185 Pa.- St. 61. LAW OF WILLS. 483 that the burden of proof on the issue of undue influence is on proponents.^'^* The objection to this form of stating the rule is given be- fore.^"^ In tlie technical sense the burden of proof never shifts. The law and the nature of tlie issue determine upon which party the burden of proof rests at the outset, and this never shifts during the progress of the trial. What is really meant by this form of statement is this : If the evidence of execution introduced by proponent does not of itself tend to establish undue influence, proponent is not obliged to go further and offer affirmative evidence that there was no undue influence. If, however, proponent's evidence tends directly to show that there was undue influence, or es- tablishes facts from which undue influence may be inferred, proponent must, in order to go before the jury, introduce other and further evidence to disprove the existence of undue influ- ence. If, when he rests, the uncontradicted evidence introduced by proponent establishes imdue influence, he may be non-suited, or the jury may be directed to return a verdict against him, in accordance with the method of procedure prevailing in that jurisdiction. If proponent's evidence is conflicting, it may be considered by the jury together with the evidence introduced by contestant, including all presumptions which may be drawn from the evidence introduced. If u})on the whole evidence, in- cluding such presumptions, the preponderance of evidence is with contestants, they will prevail; otherwise proponents will prevail. The so-called shifting of the burden of proof is therefore really the raising of presumptions which must be overcome by the proponent in order to prevent contestant from prevailing, by establishing the issue on his part by a preponderance of the evidence. From this standpoint the subject can be best con- sidered under the head of presumptions in the following sec- tions. sosTibbe v. Kanip, Mo. (1899), 309 See Sec. 3G9. 54 S. W. 879; (1900), 55 S. W. 440. 484 LAW OF WILLS. S407. Extent of burden. o The burden of proof is never greater upon the issue of undue influence than the duty of establishing the issue by a prepon- derance uf the evidence.^^^ It is therefore error to charge the jury that in order to avoid the will the circumstances of exe- cution must be inconsistent with any hypothesis except that of undue influence ;^^i and after the court has charged the jury that, on proof of due execution and capacity of testator, the will is presumed to be his free and voluntary act, it is error to add that undue influence must be "proven to your satisfaction by a preponderance of evidence," as this doubles the burden upon contestants by giving proponents the benefit of a presimip- tion of fact as a presumption of law.^^^ In some cases the extreme rule is applied that the contestant must adduce such evidence that no hypothesis except that of undue influence will be consistent with the evidence which the jury believes.^^^ §408. Presumptions In general. Presumptions of undue influence are said to arise out of cer- tain combinations of fact. These presumptions are presump- tions of fact merely, and not presumptions of law,^^"* and it is error for the court to charge the jury that a certain state of facts creates a presumption of undue influence, and that unless the adversary party rebuts this presumption the jury must find against him.^^^ 310 Gay V. Gillilan, 92 Mo. 250. 3i2 Morton v. Heidorn, 135 Mo. 311 Bush V. Delano, 11.3 Mich. 321. 608. The earlier case of Maynard 3i3 Adams v. McBeath, 27 Can. S. V. Vinton, 59 Mich. 139, had fol- C. 13. lowed the language used in the 3i4 Morton v. Heidorn, 135 Mo. English cases and had held that to 608 : Patten v. Cilley, 67 N. H. establish undue influence the proof 520; Mauley's Ex'r v. Staples, 65 must be inconsistent with any other Vt. 370. hypothesis. 3i5 See cases cited in preceding This case was quoted in Sever- note, ance v. Seswance, 90 Mich. 417, but was specifically overruled in Bush V. Delano, supra. LAW OF WILLS. 485 A recent Virginia case sccnis to hold a different opinion, and to regard these presumptions as prima facie presumptions of law. The evidence showed that testatrix was eighty-eight years old, and that she had made a will totally different from her previous intentions, and in favor of persons in confidential relation toward her. The trial court refused to charge that if these facts were found to be true they raised a violent presump- tion of undue influence, to be overcome only by satisfactory "testimony." This refusal was held to be error.^^^ These presumptions are best considered in connection with the relations between the testator and the beneficiaries out of which the presumptions arise, or which constitute part of the combinations of fact out of which the presumptions arise. In order to save repetition, therefore, each class of relations be- tween testator and beneficiaries will be considered first with regard to the presumption, if any, arising out of the relation- ship itself, and second with regard to the additional facts which may, in connection with such relationship, give rise to a pre- sumption of undue influence, or strengthen a presumption al- ready raised. ^409. Parent and child. The fact that the testator and beneficiary bore the relation of parent and child does not of itself give rise to any presump- tion of undue influence.^^'^ This rule applies both to wills made by parents in favor- of their children,^^^ and to wills made by children in favor of their parents.^^^ It also applies to a son- in-law who is a beneficiary under the will of his father-in- 316 Whitelaw's Executor v. Sims, 437 ; Foster's Appeal, 142 Pa. St. 90 Va. 588, citing Hartman v Strickler, 82 Va. 225. 317 Dale's Appeal, 57 Conn. 127 Teegarden v. Lewis, 145 Ind. 98 Lamb v. Lippencott, 115 Mich. 611 Cash V. Lust, 142 Mo. 630; Ayl ward V. Briggs, 145 Mo. 604; 47' S W. 510; In re Martin, 98 N. Y, 103: Coleman's Estate, 185 Ta. St 62. 31S Bundy v. McKnight, 48 Ind 502; Lamb v. Lippencott, 115 Mich 611; Cash v. Lust, 142 Mo. 630 \yhite V. Starr, 47 N. J. Eq. 244 319 7m re Andrews, 33 N. J. Eq 514; Coleman's Estate, 185 Pa. St 437. 486 LAW OF WILLS. law ;^-^ and to brothers and sisters who are beneficiaries under the will of each other,^^^ and to members of the same household generally.^"^ The fact that the beneficiary in such relationship transacted business for the testator does not raise a presumption of undue influence.^2^ go the mere fact that a son lived with his par- ents, and managed their property for them, does not of itself make out even a privia facie case of undue influence.^^'* Nor does the fact that one of such parties suggested and urged the testator to make such will, unless such urging amounted to ac- tual undue influence.^^^G ^^^j. jogg the fact that the will did not distribute the property equally among the natural objects of testator's bounty raise a presumption of undue influence in such relations.^"^*^ Indeed, from the adjudicated cases, it may safely be laid down, as a general rule, that in such relations no presumption of undue influence arises, but, on the contrary, the evidence must be even stronger to establish actual undue in- fluence where the beneficiary is so close a relation of testator than where beneficiary is a stranger.^-^ But, where a child of testator also is his confidentinl agent, the rule of presumption as to confidential agents applies, and not the rule as to parent and child,328 and where a child of testator is guilty of such 320 Lamb v. Lippeneott, 115 Mich. 611, citing Maynard v. Vinton, 59 Mich. 139; Severance v. Severance, 90 Mich. 417. 321 In re McDevitt, 95 Cal. 17. 322 Doherty v. Gilmore, 136 Mo. 414; McMaster v. Scriven, 85 Wis. 162. 323 Lamb v. Lippeneott, 115 Mich. 611; Cash v. Lust, 142 Mo. 630; Aylward v. Briggs, 145 Mo. 604; 47 S. W. 510. 324 Aylward v. Briggs, 145 Mo. 604 : 47 S. W. 510 ; Meats v, Mears, 15 0. S. 90. 325 Harrison's Will. 1 B. Mon. (Kv.), 351: Gilreath v. Gilreath, 4 Jones Eq. (N. Car.), 142; Coleman's Estate, 185 Pa. St. 437; Woodward V. James, 3 Strobh (S. Car.), 552; Hartman v. Striekler, 82 Va. 225. 320 McLane's Estate, 21 D. C. 554; McFadin v. Catron, 120 Mo. 252; Myers v. Hauger, 98 Mo. 433 ; Mad- dox V. Maddox, 114 Mo. 35: Pen- syl's Estate, 157 Pa. St. 465;Kaugh- man v. Caughman, 49 S. Car. 159; Kerr v. Lunsford, 31 W. Va. 660; Mears v. Mears, 15 O. S. 90. 327 Dale's Appeal, 57 Ccnn. 127: Lamb v. Lippeneott. 115 Mich. 611. 328 Miller v. Miller, 187 Pa. St. 572; 41 Atl. 277. LAW OF WILLS. 487 fraud^^^ or force and violence^"^ as would amount to actual undue influence in a stranger, it is none the less undue influence because of the relationship. And where the evidence tended to show actual undue influence, and further, that the brother of testator, who took under the will, was instrumental in having the will dra^vn, and was present at its execution, the rules re- lating to a beneficiary who drafts the will apply, rather than the rules relating to brothers, and a jDresun^jtion of undue in- fluence arises.^^^ §410. Husband and wife. 1^0 presumption of undue influence arises where the bene- ficiary is either the husband or wife of testator on account of such relationship f^^ nor does the fact that the beneficiary in such relationship urged and solicited testator to make such will create a presumption,^^^ even where beneficiary had great and continuous influence over testator.^^^ 329 Jones V. Simpson, 171 Mass. 474; 50 N. E. 940. 330 Capper v. Capper, 172 Mass. 262; Dale v. Dale, 38 N. J. Eq. 274; Moore v. Blauvelt, 15 N. J. Eq. 3G7. 331 Boisaubin v. Boisaubin, 51 N. J. Eq. 252 ; a similar case is Lyons V. Campbell, 88 Ala. 402. 332 Bulger V. Ross, 98 Ala. 267 ; Herwick v. Langford, 108 Cal. 608; Orth V. Orth, 145 Ind. 184; 145 Ind. 206; 32 L. R. A. 298, 308; Gwin V. Gwin, — Ida. — ; 48 Pac. 295; Small v. Small, 4 Me. 220; Pierce v. Pierce, 38 Mich. 412; De- foe V. Defoe, 144 Mo. 458; Rankin V. Rankin, 61 Mo. 295; Black v. Foljambe, 39 N. J. Eq. 234. 333 Herwick v. Langford, 108 Cal. 608; Gwin v. Gwin, — Ida.— ; 48 Pac. 295; Black v. Foljambe, 39 N. J. Eq. 234; Hughes v. Murtha, 32 N. J. Eq. 288 ; Lide v. Lide, 2 Brev. (S. Car.). 403. 334pit.rwick V. Langford, 108 Cal. 608; Meeker v. Meeker, 75 111. 260; Small V. Small, 4 Me. 220; Storer's Will, 28 Minn. 9; Peery v. Peery, 94 Tenn. 328; McClure v. McClure, 86 Tenn. 173; Smith v. Harrison, 2 Heis. (Tenn.). 230: Simerly v. Hurley, 9 Lea (Tenn.), 711. "There is no legal presumption against the validity of any pro- vision which a husband may make in a wife's favor, for she may justly influence the making of her hus- band's will for her own benefit or that of others, so long as she does not act fraudulently or extort benefits from her husband when he is not in condition to exercise his faculties as a free agent." Latham v. Udell, 38 Mich. 2.38, cited and fol- lowed In re Langford, 108 Cal. 608; also citing Hughes v. ]\Iurtha, 32 N. J. Eq. 288; Rankin v. Ran- kin, 61 Mo. 295; Nelson's Will, 39 Minn. 204; and see Richmond's Appeal, 21 Am. St. R. 95. 488 LAW OF WILLS. It is, indeed, not even correct to say that beneficiary must use such a degree of solicitation as woukl amount to undue in- fluence if exerted by a stranger, in order to constitute undue in- fluence. The law recognizes the fact that on account of the closeness and intimacy of such relationship, like that of parent and child, the parties thereto should each be allowed great free- dom in urging mutual claims upon the consideration of the other. Accordingly the husband is allowed somewhat greater latitude in persuading his wife to make a will in his favor than would be permitted to a stranger,=^^^ and on account of the supposed difference of natural influence of the two sexes the wife is allowed still gi'cater latitude.^^^" When, how^ever, the will of testator is actually overcome, and the will of the bene- ficiary is substituted for his, undue influence exists.^^'^ The distinction in actual practice between the cases of un- due influence between husband and wife, or parent and child, on the one hand, and testator and a beneficiary on the other, • is that the courts, and still more the juries, recognize that solic- itation and importunity may go to a considerably greater ex- tent in the domestic circle than between persons not so related, before the will of testator is actually broken dow^n. §411. Wills in favor of those living in improper sexual rela- tions with testator. In some of the earlier cases it was held that the mere fact that testator made a will in favor of a woman who was liv- ing with him as his mistress raised a presumption of fact of un- due influence, and that such state of facts was of itself enough to justify a finding of undue influence.^^^ The great weight of modern authority, however, holds that the mere fact that the 335 Bulger V. Ross, 98 Ala. 267; v. Lide, 2 Brev. (S. Car.), 403. Armstrong v. Armstrong, 63 Wis. 337 Pierce v. Pierce, 38 Mich. 412; 162. Messnor v. Elliott, 184 Pa. St. 41. 336 Berwick v. Langford. 108 Cal. 338 Dean v. Negley, 41 Pa. St. 608; Storey's Will, 20 111. App. 312: see Hess's Will, 31 Am. St. 183: (not affected on this point Rep. 605 for cases that will to a bv the reversal in 120 111. 244) ; mistress shows per se undue in- Tliompson v. Tsh, 00 Mo. 160: Ma- fluenee. son V. Williams, 53 Hun, 398 ; Lide LAW OF WILLS. 489 , -, 1 1 -f,.! covnnl relations with testator is, beneficiary holds -^'^^'^J^ ^ . „, „,,,„, influence, of itself, not sufticent to justilj a nn „ ^^^ „nd tluU upon such facts no presumption aiises. Tl a y cases have not been overruled by the second hne of ca e btU distinguished. In the earlier bne there was in irtase enough ^ddenee of actual undue inflneuce to jus- ti-fv thp findinc; of the coiirt.^"*^ L 11 the existence of the unlawful relationship does nof lount per se to undue influence, it is in many cases ol innnortance-^ Accordingly, where there is some evi- ^ 3 Ho show actual ^ndue influence, the fact th^ ttaL or testatrix occupied unlawful ^sexual relations with each other is admissible in evidence. 339Wingrove v. Wingrove, L. R. 11 P. D. 81; Moore v. Heineke, 119 Ala. 627; Dunlap v. Robinson, 28 Ala. 100; Richmond's Appeal, 59 Conn. 226; Smith v. Henline, 174 111. 184; Kessinger v. Kessinger, 37 Ind. 341 ; Porsehett v. Porschott, 82 Ky. 93; Davis v. Calvert, 5 Gill. & J. (Md.) 209; Wallace v. Harris, 32 Mich. 380; Hess's Will, 48 Minn. 504 ; Sunderland v. Hood, 84 Mo. 293; Arnault v. Arnault, 52 N. J. Eq. 801; 31 Atl. 606; Smith V. Smith, 48 N. J. Eq. .506; :^Iondorfs Will, 110 N. Y. 450; Monroe v. Barclay, 17 O. S. 302; Johnson's Appeal, 159 Pa. St. 630; Wainright v. Wainright, 89 Pa. St. 220; Rudy v. Ulrich, 69 Pa. St. 177; Main v. Ryder, 81 Pa. St. 217; Farr v. Thompson, 1 Clevcs (S Car.), 37; O'Neall v. Farr, 1 Rich. (S. Car.), SO; McClure v. McClure, 80 Tenn. 173. 3+0 Johnson's Appeal, 159 Pa. St. 630, distinguishing Dean v. Neg- ley, 41 Pa. St. 312. 341 "The existence of an illicit re- lationship between a deceased^ tes- tator and his mistress will not give rise to a presumption of undue in- fluence as a matter of law, but un- due influence is more readily in- ferred in case of a will made in favor of a mistress than in the case of a will made in favor of a wife. The existence of the rela- tion is a circumstance to be con- sidered by the jury along with other facts in the case." Smith v. Henline, 174 111. 184. 342 In re RufTino's Estate, 116 Cal. 304 ; Kessinger v. Kessinger, 37 Ind. 341 ; Baldwin v. Robinson, 93 Mich. 438; ( facts in reported case are very meager) ; Dean v. Negley, 41 Pa. St 312 ; Reichenbach v. Ruddach, 127 Pa.' St. 564; Bryant v. Pierce, 95 Wis. 331 ; McClure v. McClure, 86 Tenn. 173. "The jury have a right to con- sider the fact of the unlawful re- lationship when there is proof, as there is in the case at bar, tending to show constraint and inference, impaired mental capacity, loss of will power, and sickness or disease at the time of the making of the will." ^.. Smith V. Henline, 1-4 HI. 184, citing INIonroe v. Barclay, 17 0. S. 302: Johnson's Estate, 159 Pa. St. 630: INTcClure v. McClure. 86 Tenn. 173. 490 LAW OF WILLS. §412. Subsequent marriage of parties in unlawful sexual re- lations. In accordance with these principles, it is not competent to show that testator and his wife had illicit and unlawful sexual relations prior to their marriage,^-*^ unless the evidence dis- closes that there was actual undue influence.^^^ §413. Attorney and client. The fact that the attorney who is consulted upon the execu- tion of the will suggests the legal phraseology appropriate to carry the wish of testator into effect, or even dictates and re- vises the will, does not of itself raise a presumption of undue in- fluence.^'*^ And where the attorney who is employed to draw the will is made the executor of the will by the terms thereof, no presumption of undue influence arises on that ground alone.^'*^ Where a will leaves property to the attorney of testator, who had nothing to do with the execution of the will, no presmnp- tion is said to arise. This point is touched upon in dicta far more often than in adjudications, for the question of undue in- fluence of an attorney is rarely raised except where the attor- ney drew the will. Where the attorney draws the will and re- ceives a beneficial interest thereunder, the case is one of those discussed in the next section, where the beneficiary, who is in confidential relations with testator, draws the will, and the rules there given apply ;^'*'^ but where the attorney who draws the will suggests such a change in the phraseology as to change an interest given to him as trustee to an absolute interest, such conduct avoids the will.^^^ \Yhere the attorney drafts the 343 In re Flint's Estate, 100 Cal. 3*6 Livingstone's Appeal, 63 Conn 391; Tn re Langford, 108 Cal. 608; 68; Richmond's Appeal, 59 Conn Maynard v. Tyler, 168 Mass. 107. 226; Dale's Appeal, 57 Conn. 127 34tMaynard v. Tyler, 168 Mass. St. Leger's Appeal, 34 Conn. 434 107; Baldwin v. Robinson, 93 Mich. Berberet v. Berberet, 131 Mo. 399; 438; Reichenbach v. Riiddach, 127 Edson's Will, 70 Hun, 122. Pa. St. 564. 317 Bennett v. Bennett, 50 N. J. 345 Hennessey's Heirs v. Woulfe, Eq. 439. 49 La. Ann. 1376; King v. Holmes, 348 Jones v. Simpson, 171 Mass. 84 Me. 219. 474; Lyon v, Dada, 111 Mich. 340. LAW OF WILLS. 491 will in which he is named a beneficiary the ordinary rules ap- ply which control a will drawn by a beneficiary.^"*^ §414. Effect of beneficiary's drawing will. At Roman Law, if a person wrote a will in his own favor such will was void.^^^ At our law the rule is by no means as strict as at Roman law. The rule established by the weight of authority is that where the will is drawn by beneficiary, who was also in confidential relations with testator, a presumption of undue influence arises.^^^ This rule is not limited to those related by blood, but 34!) See Sec. 414. 350. Dig. Lib. 48 Tit, 10 §15; Paske V. Ollat, 2 rhil. Ecc. Cas. 323; Barney's Will, 70 Vt. 352; Bennett v. Bennett, 50 N. J. Eq. 439. 35iCoghill V. Kennedy, 119 Ala. 641; 24 So. 459; Garrett v. Hef- lin, 98 Ala. 615; Henry v. Hall, 106 Ala. 84; Higginbotliam v. Hig- ginbotham, 106 Ala. 314; Silvany's Estate, 127 Cal. 226, 59 Pac. 571; Drake's Appeal, 45 Conn. 9 ; Hughes V. Meredith, 24 Ga. 325; Adair v, Adair, 30 Ga. 102; Gerrish v. Nason. 22 Me. 438; Bush v. Del- ano, 113 Mich. 321; Brown v. Bell, 58 Mich. 58 ; Farnum v. Boyd, 50 N. J. Eq. 760; Delafield v. Parish, 25 N. y. 9 ; Yardley v. Cuthbertson, 108 Pa. St. 395; Scattergood v. Kirk, 192 Pa. St. 195; Cuthbert- son's Appeal, 97 Pa. St. 163; Blunie V. Hartman, 115 Pa. St. 32; Hoope's Estate, 174 Pa. St. 373; Tomkins V. Tomkins, 1 Bail. (S. Car.), 92; Smith's Exr's v. Smith, 67 Vt. 443; Barney's Will, 70 Vt. 352; Montague v. Allan's Exr's, 78 Va. 592; Armor's Estate, 154 Pa. St. 517; Wilson's Appeal, 99 Pa.' St. 545. "In all cases the burden is on the proponent to establish that the instrument is the will of the tes- tator. Williams v Robinson, 42 Vt. 658; Roberts v, Welch, 46 Vt. 164. In general the law presumes this vital fact from the proven facts that the instrument was executed by the testator with the formali- ties required by law, and that he was of testamentary capacity so that affirmative proof that the will was not procured by the undue in- fluence of others is not required. But where the relations between the! testator and the proponent were confidential and the proponent drew the will taking the entire estate or a large bequest and would have taken nothing as heir, while near, needy and deserving relations take nothing, then the law not only re- gards the transaction with suspi- cion, but the burden should he cast upon the proponent to show that he did not, nor did anyone in his behalf, unduly influence the testator, and that the instrument propounded is the testa- tor's will and not the will of another person." Barney's Will, 70 Vt. 352, citing Paske v. Ollat, 2 Phillim. Ecc. R. 323: Barry v. Butlin, 1 Curt. Ecc. 637; 2 Moore P. C. 480; 492 LAW OF WILLS. applies to any confidential relations.^^- A similar presumption arises when the will is drawn by a hnsband of the beneficiary.^^ ^ But where the will was drawn by an attorney who held a share in a cemetery association, and was a director in such association, and by the Avill a legacy was given to such association, no pre- sumption of undue influence arises.''^^ But this presumption is neither a conclusive presumption, nor even a presumption of law, but merely a presumption of fact. "There is a 'long stride' between any inference that can be drawn from the evidence offered at the trial .and the established fact of undue influence upon the testa- tor."^^^ And, as has been said, these are facts, "in no case amounting to more than a circimistance of suspicion." ^^^ So, while the jury may find undue influence as a fact from the fact that a beneficiary in confidential relations with testator drew the will, the court must not charge the jury as a matter of law so to find.^^^ Accordingly the circumstances as intro- duced in evidence may rebut the presumption of fact of un- due influence in these cases, and the jury may find that no un- due influence existed without bringing in a verdict contrary to Burling v. Loveland, 2 Curt. 225; W. 1; Tvler v. Gardinier, 35 N. Tyrrell v. Painton (1894), P. 151; Y. 559; Delafield v. Parish, 25 N. Higginbotham v. Higginbotliam, 106 Y. 9; Greenwood v. Cline, 7 Ore. Ala. 314; Moore v. Spier, 80 Ala. 17; Swails v. White, 149 Pa. St. 129; Lyons v. Campbell, 88 Ala. 261. 462 ; Bancroft v. Otis, 91 Ala. 279 ; 352 Soattergood v. Kirk, 192 Pa. Eastis V. Montgomery, 95 Ala. 48(): St. 263; Darlington's Estate, 147 Richmond's Appeal, 59 Conn. 226; Pa. St. 624. Hughes V. Meredith, 24 Ga. 325; 353 Bromley's Estate, 113 Mich. Hess's Will, 48 Minn. 504; 31 Am. 53. St. Hep. 665 ; Maddox v. Maddox, 35i Earkley v. Cemetery Associa- 114 Mo. 35: Carroll v. House, 48 tion (Mo.) (1899), 54 S. W. 482. N. J. Eq. 269; Dale v. Dale, 38 N. 353 King v. Holmes, 84 Me. 219: J. Eq. 274; Post v. Mason, 91 N. Logan's Estate, 195 Pa. St. 282. Y. 539 ; In re Smith, 95 N. Y. 35g Bennett v. Bennett, 50 N. J. 517; Tyler v. Gardiner, 35 N. Y. Eq. 439. 559; on the same point are Blew- 357 Stirling v. Stirling. 64 Md. itt V. Blewitt, 4 Hagg. Ecc. R. 463: 138: Griffith v. Diffendeffer, 50 Md. Smith V. Henline, 174 HI. 184; 466. Wood V. Devers (Ky.), 19 S. LA^7 OF WILLS. 493 the law and the evidence.^^* X^i^^s, where the evidence shows an absence of actual undue influence, and, further, that testa- trix kept the will a year after execution, the jury may find that no undue influence existed though the residuary legatee, an old friend, drew the will;*"*^^ and so, where an attorney, who was also a legatee, drew the will, but the clause giving him the legacy was inserted by testatrix in her own handwriting after she took independent legal advice.^^*^ Where the will was drawn, at request of testatrix, by a per- son who had no confidential relations with her, and who was the father of a beneficiary under the will, it was held that no pre- sumption of undue influence arose f^'^ and where the attorney who drew the will was a beneficiary thereunder, and was also guardian of testator, these facts did not constitute undue influ- ence where such attorney had always been regarded by testa- tor as his father.^*^^ And the facts that a lei2;acv was s-iven to the attorney who drew the will, and who was also named as ex- ecutor, and was trustee of three corporations to which bequests were given, were held not to constitute undue influence where testatrix retained possession of the will thereafter, and no di- rect evidence of fraud or undue influence appeared.^*^^ And where the evidence discloses that the proponent was active in causing the will to be executed by reason entirely of his desire to aid testatrix and carry out her wishes, no presumption of un- due influence arises.^^'* So, where the beneficiary, who was a son of testatrix, furnished the data for the will to the scrive- ner, whom he had called in to draw the will, it was held that 35H Henry v. Hall, 106 Ala. 84; N. Y. 539; Logan's Estate, 195 Pa. Lyons v. Campbell, 88 Ala. 462: St. 282. Garrett v. Heflin, 98 Ala. 615; ^59 Garrett v. Heflin, 98 Ala. 615. Daniel v. Hill, 52 Ala. 430; White seo Bromley's Estate, 113 Mici. V. Cole, — Ky.— ; 47 S. W. 759; 53. King V. Holmes, 84 Me. 219; Stir- sei Henry v. Hall, 106 Ala. 84. ling V. Stirling, 64 Md. 138; Brom- 362 White v. Cole (Ky.), 47 S. W. ley's Estate, 113 Mich. 53; Car- 759. p-^nter v. Hatch, 64 N. H. 573: 363 Farnum v. Boyd, 56 N. J. Eq. Bennett v. Bennett, 50 N. J. E-p 766. 439; liuslino- V. Rusling, 36 N. J. 364 Eastis v. Montgomery, 95 Ala. Eq. 603: Waddinirton v. Buzby 45 486; 11 So. 204. N. J. Eq. 173; Post v. Mason, 91 494 LAW OF WILLS. such conduct did not establish undue influence where testatrix had the will read over to her before execution in the absence of the beneficiarv.^*^^ But in some extreme cases it is said that only the clearest evidence can rebut the presumption of undue influence. Thus, where testator was advanced in years, and of very doubtful capacity, and the attorney who prepared the will wrote himself as executor and chief beneficiary, it was said that in order to rebut the presumption of undue influence he must offer evidence of the clearest and most convincing char- acter; and his claim that this legacy was in compensation for legal services, which were worth far less than the legacy, was not suflicient to rebut such presumption.^*^" §415. Effect of presence of legatees at execution. The mere fact that legatees were present when the will was made, without any evidence that they induced or procured the execution of the will, does not raise any presumption of undue influence.^^''^ And even though beneficiaries were present at the execution of the will, and employed the attorney who drew the will, no presumption of undue influence arises where the evi- dence does not disclose that they even knew the provisions of the will.3«8 §416. Effect of business relations between testator and bene- ficiaries. The fact that the devisee under a will had been for a long time the partner of the testator does not raise a presumption of undue influence ; ^^^ nor does the fact that devisee was the 3fi3 Logan's Estate, 195 Pa. St. Wilcoxon, 1G5 111. 454; Dieffen- 282. Similar facts were presented bach v. Grece, 56 N. J. Eq. 365; in Scattergood v. Kirk, 195 Pa. St. Delgado v. Gonzales, (Tex. Civ, 195. App.), 28 S. W. 459. 36GHoopes's Estate, 174 Pa. St. sosMcMaster v. Scriven, 85 Wis. 373_ 162. (See cases in preceding note.) 367Henry v. Hall, 106 Ala. 84; 369 Goodbar v. Lidikay, 136 Ind. Ethridge v. Bennett's Executors, 9 1. IToust. (Del.), 295; Wilcoxon v. 495 LAW OF WILLS. business manager of testator,"" or his confidential agent,"' or 'Tn°a"cl Kew Jersey case where the partner of a testator who was an habitnal drunkard drew the will, jn wMch he was lamed as executor though not a beneficiary, and the benefic.ary ^tat^r's son, was ordered U, continue *!>« P-"--'"P J' ^^ ecutor and not to sell bis interest wUbout las permission, rt was held that such facts do not constitute undue influence The nature and extent of the dealings between testator and beneficiary may show that they did not occupy ordinary busi- ness relations Lard each other, but that the relations were Th L of especial trust and confidence."* Where the henefl- ciarv occupies relations of trust and confidence with testator i is slid that the burden is cast upon beneficiary to prove that there was no undue iiifluence."^ Thus, where ^^^^'f/ J^ quired absolute control over testatrix, and thus obtained a will in his favor, it was held void for undue influence. §417. Effect of intimacy. The fact that beneficiary was an old friend of testator's does not of itself raise a presumption of undue influence."' Indeed, ,, • „ n„M,CT 91 lo. V. Butcher, 91 la. 425; Bancroft V. .,.Dcnmng v. Butcher, ^^^^^ ^^ ^^^ ^^^^ ^ ^^ ^^^. ^^^^^^ *'^^' , t n,»* the V Whelnley, 111 N. Y. 239; Mon- "Nor will the mere fact that the v ""^'I! «?• testator gave a legacy to oue ..ot "or s « m 110 K Y 450^ of his blood and who had been his «•> Fatten v. cmey, confidential , ''"f'-^,,;^ ";,^;^^^. ''L Douglass's Estate, 162 Pa. St. upon such legatee the bvuden or s showing that the will was not made 56/. r.. xt T Fn snowiiie, ^ ^ „^a„+'' STsKoec^el v. Egner, 54 N. J. l^q- by his influence or procurement. ivoe^ei ^ Denning v. Butcher, 91 lo. 425, 623. o ^^ mr t^ 9m ueniiLu^ 374Manatt v. Scott, 106 lo. 20J. oitino' Webber v. Sullivan, 58 io. -^^^'^^ ^,. „, ai o7o '".rr^- M.r^r.-n 28 To 375 Bancroft V. Otis, 91 Ala. 2/9. 260; Mclntire v. McConn, Z8 io. ' .^, T „= 70 Tn p;iq- 376 Grove V. Spiker, il ma. 6W. 480; Smith v. James, /2 io. oi.J. Blake V. Rourke, li Io. 519. 377 Garrett v^ Hefl n^ 98 Ala. "The rule as to the burden of 615; Harp v Pan. ^ '^ "^ 4.39 proof in cases relating to gifts in- Goodbar v. ^^^^^^ay 136 Ind. , L viros. where a confidential re- Lamb v. L^P;:;-';f'/^^/p^"^-/; l lation exists between the parties, Ressner v. Elliott^ 184 Pa. S. 41 , has often been held inapplicable Green's Appeal, 140 Pa. St. 137. to cases touching wills." Denning 496 LAW OF WILLS. it is said rather to show absence of imdiie influence, since such a will would be just and natural.^^* §418. Physician, nurse, etc. The physician and nurse of testator stand in a relation of peculiar trust and confidence to the testator, especially when the will is made in his last sickness. Accordingly, devises and bequests in favor of a physician or nurse have been held by the courts to be subject to suspicion, and it has even been said that a presumption of fact arises of undue influence.^^^ But this presumption is, of course, rebuttable by showing that tes- tator did in fact make his will in favor of his nurse at a time when he was entirely free from influence.^^" Even if this presumption may arise, it must be shown that the will was made during testator's sickness, while under med- ical care of the persons who were claimed to have exercised such undue influence.^^^ Undue influence can not be presumed from the mere fact that the physician informed testator that his condition was dangerous, and urged him to arrange his business affairs.' 382 §419. Religious adviser. The fact that the beneficiary under a will is the religious adviser of testator is said to raise a presumption of undue in- fluence. This presumption is like otlier presumptions in undue influence, a presumption of fact, not law.^^^ 378" Harp V. Parr, IGS 111. 459. affirmed on grounds stated in opin- 379 Pike's Will, 83 Hun, 327; ion below in 73 Mo. 242; Marx v. Chappell V. Trent, 90 Va. 849. McGIvnn, 88 N. Y. 357. 380 Bush V. Lisle, — Ky. — ; 12 In the cases cited in the notes S. W. 7G2. sustaining this proposition, the 381 Eidwell's Succession, 52 La. point in question is found chiefly Ann. 744. in obitcrs. Tn Marx v. McClynn 382 Folks V. Folks (Ky.) (1900), the whole evidence showed no un- 54 S. W. 837. due influence : in Zerega v. Perceval 383 Zerega v. Percival, 46 La. the ground of attack was barred by Ann. 590; Hegney v. Head, 126 the efllux of time, and further the Mo. 619; Muller v. St. Louis Hos- religious adviser was also the hus- pital Association, 5 Mo. App. .390: band of testatrix; and in the Mis- 4Q7 LAW OF ^yILLS. A spiritual adviser is ordinarily in a relation of peculiar confidence toward his congregation or parishioners. Accord- ino-lj, as in other cases of those in confidential relations, un- due influence may be inferred as a presumption of fact from the additional circumstances that such adviser drew the will or procured it to be drawn.=^«^ And suggestions from a spirit- ual adviser may amount to undue influence, when similar sug- gestions from a stranger would not.^^^ ^420. Spiritualistic adviser. The doctrine applying to priests and clergymen is applica- ble to spiritualistic advisers and mediums. A will bequeath- ing property to a spiritualistic adviser is not on that ground alone presumed to be caused by undue influence. And a rea- sonable will has been held valid, even where testator believed that he was advised to make it by spirits.=^«*^ But evidence ot fraud and deceit, together with using testator's belief in spirit- ualism as a means of inducing him to make such will, is undue influence.^^^ In a recent Illinois case testatrix was induced by an al- leged medium to believe that he had a mission from the dead to^ reform the world, and that in order for him to do this it souri cases there were complicat- 384 Lyons v. Campbell, 88 Ala. ing facts. The legatees were spir- 462; Drake's Appeal, 45 Conn. 9; itual advisers or else institutions Hegney v. Head, 126 Mo. 619; with which they were connected, Miller v. St. Louis Hospital Asso- dnd these spiritual advisers drew elation, 5 Mo. App. 390; 73 Mo. the will. These cases might well 242. be decided on the theory that the sss Carroll v. Hause, 48 N. J. E. legatee drew the will. In a later 269. case where the pastor of testa- ssc Storey's Will, 20 111. App. tor's church refused to draw a will 183, also in 120 111. 244. In this for testator, leaving a large part of ease the advice seems to have been his property to the church, but was the very general and safe' advice present when it was executed, it to provide for those that he loved was held not sufficient to justify best. submitting the question of undue 387 Thompson v. Hawks, 14 Fed. influence to the jury. Tibbe y. 902 ; Greenwood v. Cline, 7 Ore. 17. Kamp. r,h S. W. 440; 54 S. W. 879; (Mo.) (1900). 498 LAW OF WILLS. was Decessary that he be provided with funds to eiiable him to print and publish a book. lie thereby induced her to make a will in his favor.^®^ This case, wliile a very interesting one, is so affected by the fraud of the beneficiary, and the in- sane delusion of testatrix, as not to be a precedent on undue influence alone. §421. General rules of presumption. As a general deduction from the specific instances of pre- sumptions, it may be said that a presumption does not arise from the mere fact that the beneficiary takes under the will, even if his share is much greater than he would receive had testator died intestate,^^^ nor is a presumption created by the facts that beneficiaries had an opportunity to exert undue in- fluence, and that the will actually made discriminates in their favor.^^^ §422. Former intention of testator. A testator has full power of revoking former wills, and, by a new will, disposing of his property in a manner entirely dif- ferent from his previous intentions. At the same time it is proper for the jury to consider whether the will offered for probate, and alleged to be caused by undue influence, is con- sistent AAdth the previous intentions of tlie testator or not.^^^ 38S In discussing this case the 39o /„ re Langford, 108 Cal. 608; court said: "It is not every in- Maddox v. Maddox, 114 Mo. 35 ; Ber- fluence exercised over a testator by beret v. Berberet, 131 Mo. 399; Mc- the beneficiary under a will which Fadin v. Catron, 138 Mo. 197 ; Turn- will justify a decree setting it aside ; ure v. Turnure, 35 N. J. Eq. 437 ; but when the relative positions of McMaster v. Scriven, 85 Wis. 162. the parties are considered, she being ^qi Higginbotham v. Higginboth- an aged and feeble woman, labor- am, 100 Ala. 314; Bulger v. Ross, ing under the influences of an in- 98 Ala. 267; Kaenders v. Monta- sane delusion brought upon her gue, 180 111. 300; Pen. Trust Co. through his machinations, the rule v. Barker, 116 Mich. 333; 74 N. W. can have no proper application." Or- 508 ; Horn v. Pullman, 72 N. Y. chardson v. Cofield, 171 111. 14. 269; Varner v. Varner, 16 Ohio, C. 389 Denning v. Butcher, 91 lo. C. 386; Whitelaws v. Sims, 90 Va. 425; Blake v. Rourke, 74 lo. 519; 588. Maddox v. Maddox, 114 Mo. 35. 4-QQ LAW OF 'WILLS. ^^^ The fact that testator's intentions, as expressed in the will, had existed for years prior to any claim of undue influence, is ordinarily sufficient to show that there was no undue in- fluence ;2''^ and where testatrix - had hrought up a child and always 'had expressed her intention of providing for it by will,'' and then married again and left her property by will to her 'second husband, it was competent on the question of undue- influence to show that testatrix, when married the first time, had made a will in favor of her first husband.^^' So it is proper to show that the disposition of property made by tes- tatrix was in accordance with the understanding which had ex- isted for years between herself and her husband, as to the disposition of their property to be made by the survivor of them, and entries in a bank book made years before by tes- tatrix are admissible to prove and corroborate evidence of such understanding.^^^ §423. Declarations of testator. The declarations of testator are generally objectionable as being mere hearsay. Where these declarations are narrations by testator of past events they are not competent for this rea- son, even where the events narrated constitute the acts of un- due influence.^''^ But testator's declarations may be admissible on one of two grounds : First. The declarations may be made at the very time of the execution of the will, so that in order to understand what was done at the execution it is necessary to hear evidence of 392 Pen. Trust Co. v. Barker, 110 163; Bevplot v. Lestrade, 153 111. Mich. 333; 74 N. W. 508. 625; Griffith v. Diffenderffer, 50 Md. 393 Bulger V. Ross, 98 Ala. 267. 566; Shailer v. Bumstead, 99 Mass. 394 Perry" V. Moore, 66 Vt. 519. 112; McFadin v. Catron, 138 Mo 395 Calkins v. Calkins, 112 Cal 296; Comstock v. Society, 8 Conn 254; Jones v. Grogan, 98 Ga. 552 :Mallery v. Young, 94 Ga. 804 Gwin V. Gwin, Ida. 48 Pac. 295 Stephenson v. Stephenson, 62 lo 197; 120 Mo. 252; Doherty v. Gil- more, 136 Mo. 414; Middleditch v. Williams, 45 N. J. Eq. 726 ; Water- man V. Whitney, 11 N. Y. 157 ; Hers- ter V. Herster, 122 Pa. St. 239; Kirkpatrick v. Jenkins, 96 Tenn. 85. 500 LAW OF WILLS. what the testator said. In such case these declarations are ad- missible under the theory of res qeslae. Second. The declarations of testator may be admissible as being in their very nature the best evidence by which that particular fact can be proved. On this principle the testator's declarations, as to how he means to dispose of his property, are admissible.^^® In some states a declaration by testator, after the execution of his will, that he had disposed of or meant to dispose of his property in a given manner is held admissible when the scheme of disposition stated by testator coincides with his will ; but inadmissible when different.^^"^ This ruling is on the theory that declarations for the will tend to show the absence of undue influence, as testator is still satisfied with it when under no restraint, while, if his subsequent declarations are antagonistic to the will, it may be a willfully false statement of testator meant to mislead the heirs. So it is held that testator's decla- rations to the effect that he is not satisfied with the will as made, and intends to change it, are not admissible.^^^ Testator's declarations are also admissible to show the state and condition of his mind and feelings,^^^ and the motives which actuate him in his disposition of his property.^'^° Thus, 396 Harp v. Parr, 168 111. 459; soo Coghill v. Kennedy, 119 Ala. In re Goldthorp's Estate, 94 lo. 641; Canada's Appeal, 47 Conn. 336; McHugh v. Fitzgerald, 103 450; Ball v. Kane, 1 Penn. (Del.) Mich. 21; Xeel v. Potter, 40 Pa. St. 90; Goldtliorp's Estate, 94 la. 336; 483; Kaufman v. Caughman, 49 S. May v. Bradlee, 127 Mass. 414; Car. 159; Patterson v. Lamb, 21 Bush v. Delano, 113 Mich. 321 ; Sey- Tex. Cir. App. 512. mour's Estate, 111 Mich. 203: 60 397 Kaufman's Estate, 117 Cal. X. W. 494; Bush v. Bush, 87 Mo. 288; Calkin's Estate, 112 Cal. 296; 480; Waterman v. Whitney, 11 N. Jones V. Grogan, 98 Ga. 552; Mai- Y. 157; Robinson v. Hutchinson, lery v. Young, 94 Ga. 804 : Muir v. 26 Vt. 38 ; Bryant v. Pierce. 95 Miller, 72 lo. 585 ; Goodbar v. Lidi- Wis. 331 ; Campbell v. Barrera, key, 136 Ind. 1. Tex. Cir. App. 32 S. W. 724. "398Calkins v. Calkins, 112 Cal. 4on Manatt v. Scott, 106 lo. 203; 296; Manogue v. Herrell, 13 App. Lane v. Moore, 151 Mass. 87; King D. C. 455; Jones v. Grogan, 98 Ga. v. Holmes, 84 Me. 219; Hess's Wi^^. 552; Gwin v. Gwin, — Ida. — ; 48 Minn. 504; Gordon v. Biirris. 48 Pae. 295; Bevelot v. Lestrade, 141 Mo. 602; Waterman v. Whit- 153 111. 625; Dickie v. Carter, 42 ney, 11 N. Y. 157; Hindman v. Van 111. 376. Dyke. 153 Pa. St. 243. LAW OF WILLS. ^^^ testator's declaration to the effect that he had already given his son as much as the rest would get serves to show that his leaving such son only ten dollars was not due to false accusa- tion against his honesty made hy his sisters to testator,^^^ and testato^r's declarations are admissible to rehut evidence that he was happv and contented during the year before his death.^^^ In some cases the declarations of testator include both a statement of the acts of others and of his own feelings, so closely connected that it is impossible to separate them. In such case they are held admissible as far as they tend to show testator's motives and feelings and the like.'*"^ A statement that "the clique made me get mad at you, and made me do what I did not intend to," was achnitted.^^^^ So, where testator said: "I don't know anything about it; the'y got around me and confuddled me. It is to be done over again," ^''^ or, "I have not made my will as I wanted to; I know I did wrong, but I could not help it." ^°« But in such cases these declarations have no weight as evidence of the acts of undue influence, and the jury should be so in- structed.^^'^ The declarations of testator made at a considerable dis- tance in time from the execution of the will, both before and after, are admissible in evidence as long as there is room for fair inference that they indicate testator's feelings, mo^ tives, and the like, at tlie time of making the will.^*^^ 4oiCahill's Estate, 180 Pa. St. 414; Herster v. Herster, 122 Pa. S<.. 131 239; Evan's Will, 123 N. Car. 113-, 402 Barney's Will, 71 Vt. 217. 31 S. E. 267; Kaufman v. Caugh- 403 Hollingsworth's Will, 58 lo. man, 49 S. Car. 159; Peerv v. Pee- 526; Hess's Will, 48 Minn. 504; ry, 94 Tenn. 328, citing Beadles v. Doherty v. Gilmore, 136 Mo. 414; Alexander, 9 Bax. (Tf-.m.) 604; Evan's Will, 123 N. Car. 113; 31 Linch v. Lincli, 1 Lea. (Tenn.) 526; S. E. 267; Ray v. Ray, 98 N. Car. Maxwell v. Hill, 89 Tenn. 584. 5(3,; ' 40S Moore v. Gnbbins, 54 111. App. 404 Doherty v. Gilmore, 136 Mo. 163; Dye v. Young, 55 lo. 433; Par^ 414 sons V. Parsons, 6w lo. 754; Shee- 4or, Stephenson v. Stephenson, 62 han v. Kearney, — Miss. — ; 21 lo. 168. ' So. 41; Peery v, Peery, 94 Tenn. 40fi Dennis v. Weeks, 51 Ga. 24. 328 ; Campbell v^. Barrera, Tex. Cir. 407Dohertv v. Gilmore, 136 Mo. ' App.; 32 S. W. 724. 502 LAW OF WILLS. While the declarations of testator are, in the cases already given, admissible, it must be remembered that "such declara- tions have no weight unless introduced in connection with evi- dence tending to prove undue influence, mental incompetency or fraud at the time of the testamentary act.""*"^ Whenever declarations of testator are put in evidence, with- out objection, the adversary party may introduce evidence of other declarations of testator to rebut those put in evidence,^^" and even if such declarations are resisted when offered in evidence, they may be opposed by contrary declarations of testator made before the execution of the will.^^^ But a letter alleged to have been written by testator must first be sho^\ii to be such before it can be used in evidence as a written declaration.'*^^ Declarations made at a time so remote from the date of the will as to throw no light upon the condition of testator at the time of the execution of the will are inadmissible.^^^ §424, Declarations of beneficiaries. Declarations made by beneficiaries under the will are, as a general rule, inadmissible. There are two classes of exceptions to this rule : Eirst. When the declarations of a beneficiary ai'e so con- nected with the facts of the execution of the will or with other facts admissible in evidence, as to be part of the res gestae, or when such declarations are designed to influence the testator, and the fact of making them is itself a material fact, such declarations are admissible.^^^ When the declara- 409 In re Langford, 108 Cal. 608; ney v. Cudney, 68 N. Y. 148; Evan's citin(7 In re McDevitt, 95 Cal. 17; Will, 123 N. Car. 113; 31 S. E. Waterman v. Whitney, 11 N. Y. 267; Tallman's Estate, 148 Pa. St. 157. (See Hess's Will, 31 Am. St. 286; Tawney v. Long, 76 Pa. St. R. 665.) 106; Hoshauer v. Hoshauer, 26 Pa. 410 Perry v. Moore, 66 Vt. 519. St. 404. 411 Kaenders v. Montague, 180 111. 4i4 Higginbotham v. Higginboth- 300. am, 106 Ala. 314; Smith v. Hen- 412 Clements v. McGinn, — Cal. line, 174 111. 184; Wallis v. Lnhr- (1893); 33 Pac. 920. ing, 1.34 Ind. 447; 34 N. E. 231; 413 Garland v. Smith, 127 Mo. Potter's Will, 161 N. Y. 84; Per- 583. To the same point are Do- ret v. Perret, 184 Pa. St. 131. hertv V. Gilmore, 136 Mo. 414: Cud- 503 LAW OF 'WILLS. tions of legatee, o«ered in evidenee, are claimed t^tavej^en n,ade bv Um in a conversation w.tk testator, ^.t^ is error to exclude" wkat testator said in sueli conversation Second Declarations of a beneficiary may be admitted on the tbeorv that they are declarations against interest. In order b^^ admissible on this ground, such declaraUons nrust have leen n.ade after the interest arose that i, ^f^r t e — » of the will,'-" except where the declaration is in the natuie rf a threat to infltLce testator's action, ^vhen, of course, it is made before the will is executed. I the declarations oiTered are admissible, as being against in^rest, the further question is presented as to their admis- sibility as affecting the validity of the will. If Uie declaration offered in evidence was made by the only beneficiary under the will it is, of course, admissible as the in- teTst of declarant is the only interest that can be affected *'"fltlnent. by one ioint devisee are f-^^^ ^^^ denee to affect the interest of his co-devisee where sncb interest ^^ Vhte rieficiaries under a will have several interests, the question of the adn.issibnity ^^^^J^:; :!-,L visee presents some difficulty. Un princ p^ .ipvisoes may be used against himself, but not against other devisees whose interest are diverse from his. In some jurisdictions, as we have seen, a part of a will ma^ be declared void on the ground of undue influence, leaving Uie L in force. In such inrisdictions th. declarations of a de- visee may be admitted as affecting his interests alone. ^ .. . .vii ifil K Y 84 (This declaration was made in the 415 Potters \Mn, 161 N. \ . 84^ ^ ^^^^^ ^^^^.^^^^ ^„d ..e Ames's Will, 51Io. _596 ; Gar- pre enc ^^ ^^^^^^^^ ^^ ^^^^ land V. Smith, 127 Mo. o83. was g devisees, before .iTHigginbotham V. Higginboth- ''''\'' .f ^^%^'J° , inrAlp S14- Kino- V. Holmes, a codicil was added. ) am, 106 Ala. 314, lUn v. 4i9 Thus in a Georgia case the 84 Me. 219 ; Capper v. C^ppe , 1^2 T^^ ^^^^^ ^^^^ ^^^ ^^^^^^^^^^^ Mass. 262; 52 N E. 98 Garland ^.^^^ ^^ ^^^.^^^^ " ^™''^;oP ^t fifs Pevetv against himself, but not against the Estate, ;j^%^- St. 645, Pei.et ^.^^^ ^ ^^^^^ .^^^^ ^^^^^^ ,. ^r L^^h ^■^^^: 174 111. 184. .cient proof may stri.e out h.s leg- 504 LAW OF WILLS. In jurisdictions where the will is treated as a unit, as far as undue influence is concerned, the declarations of a devisee are not admissible where there are several whose interests are separate.'*^" Declarations, where admissible on the grounds already stated, must be considered further as to their nature. A declaration of a fact material or relevant to the issue is ad- missible. So is a declaration in the nature of a threat to exercise undue influence where the will was actually made of the sort threatened.'^-^ Thus, where the chief beneficiary acy and establish the balance of the will, so that the will may be good as to one party and not good as to another." Morris v. Stokes, 21 Ga. 552. This statement was an obiter, as the evidence had been in- troduced so as to affect the inter- ests of all. See Sec. 131. 420 Livingstone's Appeal, 63 Conn. 68 ; Hayes v. Biirkram, 67 Ind. 359; McMillan v. McDill, 110 111. 47 ; Rogers v. Rogers, 2 B. Mon. (Ky.) 324; Phelps v. Hartwell, 1 Mass. 71 ; Shailer v. Bumstead, 09 Mass. 112; Thompson v. Thomp- son, 13 O. S. 356; Nussear v. Arn- old, 13 Serg. & R. (Pa.) 323; Clark V. Morrison, 25 Pa. St. 453 ; Irwin V. West, 81* Pa. St. 157; Forney V. Ferrell, 4 W. Va. 729. "If our mode of procedure in the settlement of the estates of deceased persons had permitted the appel- lant to take three appeals, one as against each legatee, and try each alone, or had pei'mitted each leg- atee to have a separate trial of the issues raised by the appellant, then upon the trial of (C's) appeal it would have been quite permissible to the appellant to prove that, al- though (C) was claiming in the Superior Court his rights under the will as legatee, he yet had insisted before the probate court that his mother, was without capacity to make a will. In such case his con- tradictory declarations would have affected the only person whom he representea or for whom he was au- thorized to speak, namely, himself. But inasmuch as the law has com- pelled (A) and (F) to submit their several and individual rights of jjroperty in this estate to the issue of a proceeding which also deter- mines those of ( C ) , it in avoidance of great injustice, has suspended in their favor the operation of the rule that a party to a proceeding may prove the admissions of his adver- sary. Of necessity the use of C's admission against him would be to use it against all the other leg- atees." Dale's Appeal, 57 Conn. 127, followed in Livingston's Ap- peal, 63 Conn. 68, and distinguish- ing Saunder's Appeal, 54 Conn. 108, as a case in which the declarations admitted appeared on the record as an impeachment of his evidence al- ready given that he never had ex- ercised any i .fluence over testator. Apparently contra, Gordon v. Bur- ris, 141 Mo. 602. 421 Higgmbotham v. Higginboth- am, 106 Ala. 314; Smith v. Hen- line. 174 111. 184; Miller's Estate, 179 Pa. St. 645; Perret v. Perret, 184 Pa. St. 131. . -LAW OF 'WILLS. •^^^ under the will had said before its execution: "Mother's got to make a will some of these days. She is not going to live very long- and T am going t« have all the property or raise hell " such declaration was admissible in evidence.^^ Such a threat is not conclusive evidence of undue influence, and where the facts of execution show that the testator's act was free and voluntarv, the will must be held to be valid.^- Whcre the threat to use influence may have referred to influence to do other things than mahe a will, it is not admis- sible ^^^ And declarations of intention to injure contestant, which threats were never known to testatrix, are inadmissi- ble.^'^ Declarations of a legatee, which merely express her opin- ion, that under other circumstances testatrix would have made a dift'erent will, are not admissible, or where admitted have no weight.^'*' §425 Miscellaneous declarations. O * It has been held that the declarations of testator, which are merely a narrative of past- conduct of others and past con- versations between testator and others, are inadmissible as hearsay, although testator's evidence would be admissible if it were not impossible to obtain it.* Declarations made by those not legatees may be admissible as being part of the res gestae. Thus the declarations of a nurse that she would put certain relatives of testator out ol the sickroom are admissible as tending to show a plan to control him absolutely, in order to induce him to make a will.^-"^ - Otherwise such declarations are mere hearsay, and not admissible. Tlius, a letter written by testator's wife, whom he survived, to defendant, reflecting upon the character of defendant, and possibly on that of plaintifl-, is inadmissible; .2.wallis V. Luhring, 134 Ind. ^.oMcHugh v. Fitzgerald 103 447; 34 N. E. 231. . Mich. 21; Renaud v. Pageot, 102 423Peery v. Peery, 94 Tenn. 328. Mich. 5G8. 42. King V. Hohnes, 84 Me. 219. . * Gordon v. Burns, 141 Mo 602. 425 Garland v. Smith, 127 Mo. 427 CoghiU v. Kennedy. 119 Ala. 583. G41 ; 24 So. 459. 506 LAW OF WILLS. SO is a letter from a stranger to testator concerning the habits of his son-in-law/^-^ And statements made bv one not a beneficiary under a will, as to the intention of beneficiaries to exclude contestants from testator's presence, are inadmissible since they are hearsay.'*^^ The declarations of a subscribing witness, since deceased, concerning the sanity of testator is, of course, mere hearsay and inadmissible.'*^'^ §426. Nature of will and conduct of beneficiaries. While an unjust will does not of itself raise a presumption of undue influence, the nature of the will may be considered by the jury upon the issue of undue- influence as a circum- stance.'*^^ Thus, the fact that a wife who was claimed to have procured a will by undue influence took less under the will than she would have had by law had testator died intestate, is of great weight in disproving undue influence.*^^ The will, however, can not show on its face whether it is fair or not. First, in order to determine the question of its justice or injustice it is necessary to know the relationship by con- sanguinity or afiinity between beneficiaries, heirs and tes- tator. Second, it is not a rule of law that a will which dis- inherits the relatives of testator in favor of strangers to his blood is an unnatural or unjust will.^^^ The question whether a will is natural and fair or unnat- ural and unjust, is a question of fact for the jury upon all 428 Miller v. Miller, 187 Pa. St. Rutherford v. Morris, 77 111. 397; 572; 41 Atl. 277. Kaendors v. Montague, 180 111. 300; 429Hurton v. Hurton, 113 Mich. Hollenbeck v. Cook, 180 111. G5 ; 634. White v. Cole, — Ky. — ; 47 S. W. 430 Cronshaw v. Johnson, 120 N. 759 ; Mitchell's Estate, 43 Minn. Car. 270. 73. Contra, that it may be put in evi- 432 Maynard v. Tyler, 168 Mass. dence where such witness has since 107. died, to contradict his former tes- 433 Denning v. Butcher, 91 lo. timony at probate. Abraham V. Wil- 425; Smith v. James, 72 lo. 515; kins, 17 Ark. 292. Merriman's Appeal, 108 Mich. 454; 43iCrandairs Appeal, 63 Conn. Webber v. Sullivan, 58 lo. 260; Mc- 365; McCommon v. McCommon, 151 Intire v. McConn. 28 lo. 480; Smith 111. 428; 31 N. E. 491; Pooler v. v. James, 72 lo. 515; Blake v. Christman, 145 111. 405, overruling Rourke, 74 lo. 519. LAW OF WILLS. 507 the evidence in the case.^"'* Accordingly evidence is admis- sible to show the actual conduct of beneficiaries and heirs re- spectively toward testator, and of his actual feelings towards them.^^^ Thus, the fact that beneficiaries had advanced money to testator to aid him in emergencies is admissible ;'*^^ and it is admissible, as tending to show undue influence, to introduce in evidence the fact that proponents had managed the prop- erty of testatrix for years ; and further, the report made by. testatrix as executrix of her husband's estate, which report was prepared by proponents, is admissible in evidence to show by the omission of some of said husband's property, which was in custody of proponents, that testatrix was not aware of her estate, and that proponent had concealed it from her.^^''^ But where such evidence is introduced, proponent may go further and explain the entire transaction. Thus, where the evidence showed that jiroponent had managed the estate of deceased for a long time, and in his dual capacity of such agent and of administrator of another estate, had compro- mised a note due deceased at twenty-five cents on the dollar, it was admissible for proponent to show that in this transaction he had acted under legal advice.'*^* The fact that two of the sons of testatrix tried to have her declared a lunatic and placed under guardianship is important as explaining their exclusion under the will.'*^^ Where the facts of the dealings between the parties relate to a time so remote from the date of execution of the will that it can not be inferred that such dealings could or would affect the will, such facts are not admissible. Thus, evidence 434 Henry v. Hall, 106 Ala. 84; 21; Merriman's Appeal, 108 Mien. Burney v. Torrey, 100 Ala. 157; 454; Stewart v. Jordan, 50 N. J. Eastis V. Montgomery, 95 Ala. 48G. Eq. 7r>3; Hindman v. Van Dyke, 435 Higginbotham v. Higginboth- 153 Pa. St. 243 ; Barney's Will, 70 am, 106 Ala. 314; Burney V. Torrey, Vt. 352; Slinger's Will, 72 Wis. 100 Ala. 157; Kaufman's Estate, 117 22; Bryant v. Pierce, 95 Wis. 331. Cal. 288 ; Manatt v. Scott, 106 lo. 43o Chandler v. Jost, 96 Ala. 596. 203; Denning v. Butcher, 91 la. 437 Manatt v. Scott, 106 lo. 203. 425; King v. Holmes, 84 Me. 219; 438 ^^ re Hine, 68 Conn. 551. McHugh V. Fitzgerald, 103 Mich. 439 Pensyl's Will, 157 Pa. St. 465. 508 LAW OF WILLS. that twenty-five years before the execution of the will con- testants had worked for testator as farm hands is inadmis- sible."*^'' So evidence of a contract between testator and pro- ponent — testator's widow — entered into some time before their marriage was contemplated, by the terms of which she was to receive three dollars a week, her mother and brother were to live with them, and she was to receive the further sum of fifteen hundred dollars if she served him till his death, was inadmissible, no evidence being offered to show any connec- tion between such contract and the will of testator raade after his marriage,^"*^ and the fact that the beneficiary under a will drew out all the money of testator on deposit in the bank, on checks given him by testator, does not show undue in- fluence.^^^ Evidence concerning the conduct and character of the bene- ficiaries is inadmissible where it does not tend to show the fact of undue influence or its absence. Thus, evidence that the person who was claimed to have exerted undue influence was stingy and miserly does not so tend to show that she influenced testator to make a will in favor of her son as to be admissible.^''" So, evidence that the chief legatee spec- ulated on 'change is inadmissible.^"*'* §427, Facts explanatory of the nature of the will. As the nature of the will may be considered by the jury on the issue of undue influence, facts and circumstances which tend to show that the will was either just or unjust are ad- missible. Evidence is admissible to explain the actual re- lations existing between testator and the legatees under the will, and the relations between testator and the natural objects 44oMaddox v. Maddox, 114 Mo. 4*43 Calkins v. Calkins, 112 Cal. 35. 296: 44 Pac. 577. **i Smith V. Smith, 168 III. 4S8. 4-44 Garland v. Smith, 127 Mo. 442Doherty v. Gilmore, 136 Mo. 583. 414. LAW OF ,WILLS. 509 of his bonnty.^^^ Tims, it is proper to show where the next of kin were excluded in favor of strangers to the blood, that these "strangers" had been brought up from extreme youth by testator as a member of his household.^'**^ Thus, in order to show the reason for the hostile feeling of testator toward a grandchild it was proper to show that testator and the parents of this grandchild had engaged in litigation,^^^ and similar facts may be introduced to show testator's feeling towards a legatee.'^ ■^^ Where contestant claimed that he had been falsely accused of bigamy to testator, it was competent to show that such charge was true.^^^ But where testator and his daughter had quarreled just before the will was made, it was held imma- terial what the ground of the quarrel was, it not appearing that the quarrel was incited by beneficiary.'*^*^ In some cases it is held proper to show the financial stand- ing of children of testator on other natural objects of testa- tor's bounty.'*^-^ In other cases such evidence is held to be immaterial and inadmissible,'*^^ and the fact that the benefi- ciaries under a will who were not the relatives of testatrix were supported by her in her lifetime was held inadmissible as tending to show undue influence.'*^^ In order to show that the will was either just or unjust, it is proper to show how testator obtained the property of 445 Clough V. Clough, 10 Colo. 4r,o Kaufman's Estate, 117 Cal. App. 433; Henry v. Hall, lOG Ala. 288. 84; Staser v. Hogan, 120 Ind. 21G; 45i Barbour v. Moore, 10 App. D. Denning v. Butcher, 91 lo. 425; C. 30; Gurley v. Park, 135 Ind. Allison's Estate. 104 lo. 130; Marx 440: Manatt v. Scott, lOG lo. 203. V. McGlynn, 88 N. Y. 357; Miller 452 Kaufman's Estate, 117 Cal. V. Miller, 187 Pa. St. 572: Slin- 288. ger's Will, 72 Wis. 22; Bryant v. 453 Messner v. Elliott, 184 Pa. St. Pierce, 95 Wis. 331. 41; Henry v. Hall, 106 Ala. 84, 440 Henry v. Hall, 100 Ala. 84. can be distinguished from Messner 447 Estes V. Bridgeforth, 114 Ala. v. Elliott as a case in which testa- 221. tor not only supported the benefic- 448 Canada's Appeal, 47 Conn. iary, but occupied a quasi-parental 450. , relatio?! to him. 449 Torrey v. Burney, 100 Ala. 157. 510 LAW OF WILLS. which he is making disposition Ly will.'*^'* Thus, it is proper to show that testator obtained his property from his wife and her sister by deed, and that at the tiine they deeded it to him they expressed a desire that he shoiild leave it to the persons to whom he actually did devise it.^^^ But evidence of this nature is, of course, not conclusive, as the mere fact that the will is unjust is not of itself evidence of undue influence."*^^ §428. Condition of testator. As the question on the issue of undue influence is not whether the influence exerted would have overpowered the will of the average man, but whether it' did actually overpower the will of the testator, evidence of testator's age, health and physical condition is admissible,'*^^ and so is evidence of his strength of mind and memory, '^^^ and of the fact that testator has been under gniardianship,^^^ and of testator's extreme cruelty, disgusting eccentricities and the like.'*^*' It is admissible to show that testator was intoxicated when he made his will, even if the intoxication was not such as to incapacitate him, as it would affect his susceptibility to the influence of others.^^-^ Evidence that testator ceased taking care of his property as he had been doing is admissible as tending to show greater susceptibility to the undue influence of others,^ ''^ and it may 454Gunii's Appeal, 63 Conn. 254; 45s Messner v. Elliott, 184 Pa. St. Ruffino's Estate, 116 Cal. 304; Glo- 41; Tallman's Estate, 148 Pa. St. ver V. Hayden, 4 Cush. (Mass.) 286; Patten v. Cilley, 67 N. H. 580; Belknap v. Robinson, 67 N. H. 520; Foster v. Dickinson, 64 Vt. 194; 29 Atl. 450. 233. 455 Qunn's Appeal, 63 Conn. 254. 459 Lamb v. Lippincott, 115 Mich. 456 Ruffino's Estate, 116 Cal. 304. 611. 457 0Imstead v. Webb, 5 App. D. 46o Eivard v. Rivard, 108 Mich. C. 38; Pooler v. Christman, 145 98; Bittner v. Bittner, 65 Pa. St. 111. 405, affirming 45 111. App. 334; 347. Sullivan v. Foley, 112 Mich. 1; 4gi Smith's Executory. Smith, 67 Hess's Will, 48 Minn. 504; Gordon Vt. 443. V. Burris, 141 Mo. 602; Periet v. 462 Bryant v. Pierce, 95 Wis. 331. Perret, 184 Pa. St. 131; Peery v. Peery, 94 Tenn. 328; McClure v Mcciure, 86 Tenn. 173. 511 LAW OF WILLS. be sho^™ that after the execution of the wlU testator wa. ig- norant of its contents.*'^^ . . On the other hand, evidence that testator acquiesced m hi. .ill after its execution, when free from undue influence and capabt of revoking, is admissil.lo, not as shownig a rat.fica- ion for this could be done only by repubhcaUon, but as showing that the will was made without undue influence m he fir^^t instance."* Of course if the will were executed under undue influence the act of retaining in testator s pos- Lsion would not give it validity. Kepubhcation would be "There' the fact that testator did not destroy his will after the alleged undue influence ceased is used to disprove undue influenci it is competent to show that testator, by reason of his physical condition, defective memory, and the like, was un- able to revoke it."» As tending to show that the will was not in the custody of testator, and that he could not revoke it evidence that the envelope in which it was placed was endorsed Jn the handwriting of a beneficiary, who was also the husband of the principal legatee, is admissible.*" S429. Circumstances of execution. As the circumstances attending the execution of a will are especially valuable in determining whether undue influence .., "There was evidence tending to 14 ; Peery v. P-'^'. »^ l"™^' ^f^ Show that afte. it, e.ee,,t.o„ ,,e -"="^ ^^^v.^S' H A,:.' Sec'. was not aware of its contents, ihis o^o, was competent." Barney's Will, 70 648. vt 352, citing Shalerv.Bumstead, ^^-^i Chaddick v. Haley, 81 Tex. 99 Mass. 112^ ^^L Barbour v. Moore, 10 App. D. 464 T-ii rp Coleman s rjState, loj -^ . i.„j,, P Vt 4S7. Deck V Deck (Wis.) C. 30 (where will was m custody ItoO^OK :fN.r.03^ TO the .a,ne . hn^ ot ^^^ ^^ effect are Garrett v. Heflm. 98 Ala. v. na>aen, el5; Ta„n,an. Estate^ US Pa. St. -i^o, 4^M.eh. 313. ^^ ^^^ ^ 286; Hoshaucr v. Hoshauer, Zb i a. St. 404 ; Kaul v. Brown, 17 R. I. C. 30. 512 LAW OF WILLS. existed then or not, such circumstances are admissible in evi- dence.'* ^^ The fact that at the time of the execution of the will tes- tator was under the actual physical control of beneficiaries, and that the natural objects of testator's bounty were excluded from testator's presence, is admissible and usually of great weight.**^^ Eyidence of such conduct is said bj some courts to raise a presumption of undue influenee.'*'^^ Such evidence may, of course, be contradicted or explained away by proponent. Thus, where contestants introduced evi- dence to show that contestant, who was testator's father, was not sent for during testator's sickness, when the will was made, because proponent, testator's ^vife, did not want him there, it was held competent for the wife to show that she invited him to be present and that he refused to come, as he was too old, and so asked another person to go in his place.^'^^ The subscribing witness may testify that at the execution of the will, he saw no signi of undue influence.'*'^ However, the mere fact that the will was executed secretly does not create a presumption of undue influence.^ '^^. But while direct evidence, as to the facts and circumstances of execution, the exclusion of friends and relatives from testator, and the like, is admissible, hearsay evidence of such facts is, of course, incompetent.^'''^ 46s'wilcoxon V. Wilcoxon, 165 111. Atl. 2.55: Boisaubin v. Boisaubin, 454; King v. Holmes, 84 Me. 219; 51 N. J. Eq. 252. In re Bromley's Estate, 113 Mich. 47o Chappell v. Trent, 90 Va. 849. 5.3; 71X.W. 323; Sullivan v. Foley, 47i Allison's Estate, 104 lo. 1.30. 112 Mich. 1 ; Bennett V. Bennett, 50 472 Taylor v. Pegram, 151 111. X. J. Eq. 439. 106; 37 N. E. 837. 469Coghill V. Kennedy, 119 Ala. 473 Tibbe v. Kamp (Mo.) (1900). 641; 24 So. 459; Frye v. Jones, 55 S. W. 440; .54 S. W. 879; Fox Ky. — ; 24 S. W. 5; Green's v. Martin, 104 Wis. 581; 80 IST. Will, 67 Hun, 527; Seymour's Es- W. 921: Logan's Estate, 195 Pa. St. tate. 111 Mich. 203; 69 N. W. 494: 282. Claffey v. Ledwith. 56 X. .J. Eq. 474 Hurton v. Hurton. 113 Mich. 333; Chappell v. Trent. 90 Va. 849: 634; 71 X. W. 1078. Smith V. Smith, 07 Vt. 443; 32 LAW OF WILLS. 513 §430. Opinion evidence. If the witness first details the facts upon which he bases his opinion he may be asked his opinion whether the testator was under restraint when he made his wilL'*'^^ A beneficiary, however, can net be asked his opinion as to the injustice of the will, for this is peculiarly a question for the jury.'*'^*^ Evidence that "something in the manner or conduct" of third persons made witness believe that testator was under their control was inadmissible where the evidence did not show that testator was present, nor what this "manner or con- duct" was,^'^^ and evidence that the person who was claimed to exert undue influence "always looked shy, and was generally confused," and looked as if he wanted to do something that he was ashamed to do, was inadmissible where not part of the res gestae.'^'^^ V— EVIDENCE OF ALTERATION AND PARTIAL SPOLIATION. §431. Burden of proof. Where a will is offered for probate, with alterations ap- parent upon its face, it is often said that the burden of proof is upon the parties offering it for probate, to show that the al- terations were made before execution.'* ^'^ This proposition means first, that in every will the burden of proof is upon proponents to establish the execution in the form in which it is offered for probate ;'*^° and second, that in cases of certain alterations the presumption arises that they were made after execution. 475 Jones V. Grogan, 98 Ga. 552 ; 479 Cooper v. Bockett, 4 Moore. P. McLean v. Clark, 47 Ga. 24; How- C. C. 419; 10 Jur. 931; Lushington ell V. Howell, 59 Ga. 145; Rollwag- v. Onslow, 6 Not. Cas. 183; Doe v. en V. Rollwagen, 63 N. Y. 504. Palmer, 15 Jur. 836; In re Lawson, 476 Aylward v. Briggs, 145 Mo. 25 Nova Scotia, 454 ; Camp v. Shaw, 604; 47 S. W. 510. 52 111. App. 241, also 163 HI. 144; 477 Jones V. Grogan, 98 Ga. 552. In re Wilson, 8 Wis. 171. 478 /n re Merriman's Appeal, 108 48o Holman v. Riddle, 8 0. S. 384. Mich. 454 ; 66 N. W. 372. 51-4 LAW OF \\lLLi>. §432. Presumptions. An alteration in a will is, as a general rule, presumed, in the absence of evidence, to have been made by the testator after the execution of the will."^^ This rule is different from that often said to obtain in the case of other written instruments for this reason : In the case of other instruments it is a civil wrong, if not a crime, to alter a written instrument. In case of wills the testator may alter the will as much as he pleases, without wronging anyone. "There is no crime in a testator choosing to make alterations in his will, but he can not re- serve to himself a power of making future testamentary gifts by unattested instruments."*^^ This presumption obtains where the will is in the custody of testator and subject to his control.-*^^ But where the evi- dence shows that the will was in the custody of those who were interested in suppressing it, alterations apparent on the will are not ordinarily presumed to have been made by tes- tator.^^^ At least one important qualification must be made to this general rule of presumption. If the words, claimed to be an alteration, are necessary to the sense of the will, the law will presume that they were accidentally omitted in drafting the will, and were inserted before execution. ^^^ The New York courts seem to entertain a co-ntrary view, and to hold that an interlineation in the handwriting of tes- tator, reasonable and fair, and without anything suspicious about it, except that it is an interlineation, is not presumed to have been made after execution. "Where an interlineation on a will is fair upon its face, and it is entirely unexplained, 481 Cooper V. Bockett, 4 Moore, P. *83 See cases cited in last two C. C. 419; Goods of Sykes, L. R. notes. 3 P. 26; Burgoyne v. Shawler, *84 Miles's Appeal, 68 Conn. 237: 1 Rob. 5; hi re Lawson, 25 N. S. Bennett v. Sherrod, 3 Ired. (N. 454; Camp v. Shaw, 52 111. App. Car.) 303. 241 ; Toebbe v. Williams, 80 Ky. 485 Goods of Cadge, L. R. 1 P. & 661; Baptist Church v. Robbarts, 2 D. 543; Goods of Bist, L. R. 2 P. Pa. St. 110. 214; Goods of Adams, L. R. 2 P. 482 Williams v. Ashton, 1 Johns 367 ; Martin v. King, 72 Ala. 354. & H. 115. LAW OF WILLS. 515 there being no circumstances whatever to cast suspicion upon it, it would not be proper for any court to hold that the al- teration was made after execution." ^^^ §433. Evidence contradicting or supporting presumption. These presumptions, in cases where they obtain, are prima facie only, and may be rebutted. A certificate in the attesta- tion clause that the alterations were made before execution is admissible to prove such fact, and, if genuine, is conclu- sive.*" Extrinsic evidence from those who saw the will at the time of execution is admissible to show whether the altera- tions were made before execution or not.*®^ According to the English authorities declarations of testator before or at the time of the execution of the will are admis- sible to show whether the alterations then existed; *^^ but his declarations after the execution of his will as to the time when the alterations Avere made is inadmissible.*'^^ Expert evidence based on the appearance of the will, the color of the ink, the handwriting, and the like, is admissible to show whether the alteration was made before or after ex- ecution. VI— EVIDENCE OF LOST AND SPOLIATED WILLS. §434. Degree of proof necessary. — Burden of proof. The statutes upon the subject of lost wills are generally framed upon the theory that within limits of safety the spolia- tor of a will should be prevented from gaining anything by 486 Grossman v. Grossman, 95 N. 489 Doe v. Palmer, 16 Q. B. 747;; Y. 145. Goods of Sykes, L. R. 3 P. 20. 487 Lurie v. Radnitzer, 166 III. 49o Goods of Adamson, L. R. 3 P. 609 ; Grossman v. Grossman, 95 N. 253. Y. 145. Contra, Ravenscroft v. Hunter, 2, 488 Goods of Hindmarch, L. R. Hagg, 65. 1 P. 307 ; Wright v. Wright, 5 InJ. 389. 516 LAW OF WILLS. liis wrongful act, and these statutes are construed by the courts as being in odium spoliatoris^^^ It is not necessary to prove the contents of the lost will literally, but a substantial proof of such contents is all that is reqnired,^^^ and if only a part of the lost will can be proved such part may be admitted to probate.^^^ It is clearly settled that the burden of proof in probate of lost wills is upon the parties offering such lost mil for pro- bate.'*^'* To what degree this burden of proof extends is not so well settled. The courts exact a greater amount of evidence than a preponderance. In some cases it is said that the evidence must be "clear" ;^^^ in others it is said that the evidence must be "full and satisfactory" ;^^^ in still other cases it is put in the superlative degree, and it is said that the proof must be "very clear" ; or the "clearest, most conclusive and satisfactory." ''*^^ In other cases it is said that the proof must be "beyond all reasonable doubt." ^^^ This degree has been held too high in Alabama.^^^ In other cases it is said that it should be "free from all doubt." ^^^ But while exacts ing.a high degree of proof the courts hold that upon the facts of the destruction, circumstantial evidence alone may be suffi- cient to justify a finding for the will.^^^ 491 Anderson v. Irwin, 101 111. 41 Vt. 59; McNeely v. Pearson 411; Pomery v. Benton, 77 Mo. 64; (Tenn. Ch. App.), 42 S. W. 165, Lambie's Estate, 97 Mich. 49; Ban- "clear and satisfactory." ning V. Banning, 12 O. S. 437; 49- Kitchens v. Kitchens, 39 Ga. Brown v. Brown, 10 Yerg. (Tenn.) 168; Vining v. Hall, 40 Miss. 83; g4, Buchanan v. Matlock, 8 Hump. 492 Jones V. easier, 139 Ind. 382; (Tenn.) 390. Banning v. Banning, 12 O. S. 437. 49s Woodward v. Goulstone, 11 493 Jones V. easier, 139 Ind. 382; App. Cas. 469. eahill V. Owens, 2 Gaz. (Ohio), 89. 499 Skeggs v. Horton, 82 Ala. 352; 494Xewell V. Homer, 120 Mass. Apperson v. eottrell, 3 Porter 277; Graham v. O'Fallon, 3 Mo. (Ala.), 51. 507 ; Coddington v. Jenner, 57 N. soo Johnson's Will, 40 Conn. 587 ; J. Eq. 528; 41 Atl. 874; affirmed, 45 Davis v. Sigourney, 8 Met. (Mass.), Atl. 1090. 487. 495 eoddington v. Jenner, 57 N. J. soi Schultz v. Sehultz, 35 N. Y. Eq. .528; 41 Atl. 874; affirmed, 45 653; Harris v, Harris, 10 Wash. Atl. 1090. 555. 496 Morris v. Swaney, 7 Heisk (Tenn.), 591; Dudley v. Wardner, LAW OF WILLS. "-^' §435. Witnesses. In some jurisdictions it is required that tlie contents of a lost will must be proved by the testimony of two credible wit- nesses, as a condition precedent to its admission to probate.^*^ Where such a rule is in force, and the beneficiaries under a will are held to be incompetent witnesses at probate, the con- tents of a lost will can not be proved by the sole beneficiary and by a disinterested party.^<^^ Nor can the declarations of testator be offered as a substitute for one witness.^"^ §436. Evidence of existence of will. In order to establish a lost will the evidence must first dis- close the fact that such will was once in existence. Direct evidence of those who saw the will before its loss or destruc- tion is of course desirable.^*'^ §437. Declarations of testator as to existence of will. In the absence of such evidence, however, proponents are not precluded from establishing the will, but may introduce other evidence. The weight of authority is that the declara- tions of testator are admissible as tending to prove the exist- ence of the will.^^^ 502 Jones V. Casler, 139 Ind. 382; Page, 118 III. 57G; Steele v. Price, Keesy v. Dimon, 91 Hun. 642; Har- 5 B. Mon. (Ky.), 58; Collagan v. ris V." Harris, 10 Wash. 555. Burns, 57 Me. 449 ; Pickens v. Davis, 503 Keesy v. Dinion, 91 Hun, 642. 134 Mass. 252; Commonwealth v. 504 Clark v. Turner, 50 Neb. 290: Trefethen, 157 Mass. 180; Williams Harris v. Harris, 10 Wash. 555. v. Williams, 142 Mass. 515; Lane 505 Kotz V. Belz, 178 111. 434. v. Moore, 151 Mass. 87 ; Lawyer 506 Sugden V.St. Leonards, 1 Prob. v. Smith, 8 Mich. 412; Lambie's Div. 154; Keen v. Keen, L. R. 3 Estate, 97 Mich. 49; Harring v. Prob. ADiv. 105; Woodward v. Allen, 25 Mich. 505; Collyer v. Goulstone, 11 App. Cas. 469; Harris Collyer, 110 N. Y. 481; Knapp v. V. Knight, 15 Prob. Div. 170; Goods Knapp, 10 N. Y. 276; Behrens v. of Ball, 25 L. R. Ir. 556; Boudinot Behrens, 47 0. S. 323; Youndt v. v. Bradford, 2 Dall. 266; South worth Youndt, 3 Grant's Cas. (Pa.), 140; V. Adams, 11 Biss. 256; Weeks v. Foster's Appeal, 87 Pa. St. 67; McBeth, 14 Ala. 474; Johnsoh's Durant v. Ashmore, 2 Rich. Law Will, 40 Conn. 587: Dawson v. (S. Car.), 184; Minkler v. Mink- Smith, 3 Houst. (Del.), 335: Pat- ler, 14 Vt. 125; Valentine's Will, terson v. Hickey, 32 Ga. 156; In re 93 Wis. 45. 518 LAW OF WILLS. §438. Proof of execution. The execution of a will must, as a rule, be proved with the same strictness with which the execution of an ordinary will must be proved,^"^ except that from the necessities of the case such proof of handwriting as is admissible in probate of or- dinary wills is of course impossible.^'^'* Generally, the execution should be proven by the subscrib- ing witnesses if accessible ; if not, some one who saw the will executed, other than a subscribing witness may testify.^^^ The declarations of testator can not be admitted in evidence to show execution in the manner prescribed by law.^^® §439. When presumption of execution arises. But where the evidence discloses that the will was in the possession of a party interested in suppressing the will, it is held that a presumption arises that the will which such in- terested party has suppressed was executed in the form pre- scribed by law.^^^ Where the will was admitted to probate before it was lost, evidence of that fact disi>enses with proof of execution, as the presumption of due execution is then conclusive,^^^ and the fact of admission to probate is sufficiently established by the testimony of an abstracter of title that the will was filed and recorded in the probate court.^^^ §440. Evidence of contents. After the existence and execution of the lost will have been proved, evidence of the contents is admissible. While this is BOiLasance's Estate, 7 Ohio Dec. 411; Lambie's Estate, 97 Mich. 49. 246; 5 Ohio, N. P. 20. 5i2 Kotz v. Belz, 178 111. 434 (a 50S In re Page, 118 111. 576; Har- will burned in the Chicago fire); ris V. Harris, 10 Wash. 555. Marshall v. Marshall, 42 S. Car. 509Lasance's Estate, 7 Ohio Dec. 436 (a will destroyed during the 246; 5 Ohio, N. P. 20. Civil War) ; Counts v. Wilson, 45 S. 510 McDonald v. McDonald, 142 Cat. 571; McNeefly v. Pearson Ind. 55; Mercer v. Mackin, 14 Bush. (Tenn. Ch. App.), affirmed Sup. Ct. (Ky.) 434; Cheever v. North, 106 42 S. W. 165. Mich. 390. ^^3 Kotz v. Belz, 178 111. 434. 511 Anderson v. Irvin, 101 111. LAW OF WILLS. the logical order of evidence, it is not, however, necessary that it follow this order in actual time of introduction It is su&- cient if all the necessary evidence is introduced before the case is submitted to the jury.* After the loss of the original has been proved, secondary evidence may be introduced to show its contents. The weight of authoritv in America is that there are degrees m secondary evidence, and that secondary evidence of the highest degree should either be offered, or its absence accounted for before evidence of a lower degree is offered. Thus, if a copy of the will is iu existence, and it can be identified as a copy by one who has compared it with the original, such copy should be introduced in evidence to prove the contents of the original will^^' So, where the will was recorded for probate pur- poses, during the life of testator, such record is admissible in evidence, though the clerk who ^ade^ the record and com- pared his copv with the original is dead.^^^ It was held, however, whpre the will was recorded, m a suit for its construction, merely as a matter of formal certifi- cation of evidence in that suit that such record was not of itself admissible to establish the existence and contents of the will-'"' , . , . M 1 The testimony of one who read over the will is admissible to show its contents, and such witness may use a certified copy of the will to refresh his memory, where the will was lost after probate, and, therefore, such certified copy could be had.^^^ But the evidence of a witness who saw the will, but did not read it, is, of course, of no effect whatever as to its contents."^ And a witness to whom testator read over the will can not testify to its contents, as his testimony would be either hear- * Marshall V. Marshall, 42 S. Car. and testator had spoken of this 436 20 S E 298 record of his will in his lifetime. 514 Coddington V. Jenner, 57 N. J. ^^^ McNeely v. Pearson (Tenn. Ch. Eq. 528; 41 Atl. 874; affirmed, 45 App.), 42 S. W. 165, affirmed by Atl 1090; Lasance's Estate, 5 Ohio, Sup. Ct. N P 90- 7 Ohio Dec. 246. 5i7 McNeely v. Pearson (Tenn. 515 Harris v. Harris, 10 Wash. Ch. App.) , 42 S. W. 165. 555. In this case the deputy clerk 5i8 Harris v. Harris, 10 Wash, who recorded the will was also one 555. of the subscribing witnesses thereto. .520 LAW Oli' WILLS. saj, or else evidence of the declarations of testator concern- ing the contents of his will, unless the circumstances are such as to make testator's declarations admissible.^ ^* §441. Declarations of testator as to contents. The rule in force in most jurisdictions is that the declara- tions of testator are admissible to establish the contents of tke lost will in whole or in part.^^^ In some states it is required bv statute that the contents of a lost will shall be established by the testimony of at least two witnesses before it can be admitted to probate.^^^ Wkere such rule is in force the declarations of testator are held in- admissible to establish the contents of the written will, at least where the direct evidence of two witnesses who saw the will is not offered.^^^ In the cases cited but little attention was given to the ques- tion whether the declarations of testator are sufficient to es- tablish the contents of the will, when such declarations are the sole evidence upon the subject. It seems to be settled that such declarations are admissible to corroborate other evidence of the contents.^^^ But where this question has been passed upon specifically by the courts, it has been held that the dec- larations of testator taken alone are not sufficient to establish the contents of the lost will, at least where there is no evidence to show that the will was fraudulently suppressed.^^^ 519 Clark V. Turner, 50 Neb. 290. 522 Clark v. Turrrer, 50 Neb. 290 ; 520 McDonald v. McDonald, 142 Harris v. Harris, 10 Wash. 555. Tnd. 55; Schnee v. Schnee, 61 Kan. 523 Sugden v. St. Leonard's, L. R. G43; 60 Pac. 738; Cheever \. 1, P. 154; Southwortli v. Ad- North, 106 Mich. 390; Lambie's Es- aras, 11 Biss. (U. S.), 256; In re tate, 97 Mich. 49; Lautenschlager Page, 118 111. 570: Hope's Appeal. V. Lautenschlager, 80 Mich. 285; 48 Mich. 518; Lambie's Estate, 97 Penny v. Croul, 87 Mich. 15; Brown Mich. 49. V. Bell, 58 Mich. .58; Schofield v. 524 Quick v. Quick, 3 Sw. & T. Walker, 58 Mich. 96; Hope's Ap- 442; Woodward v. Goulstone, 11 peal, 48 Mich. 518 ; Lane v. Hill App. Cas. 469 ; Chisholm v. Ben, 7 B. 68 N. H. 275, 398; Valentine's Mon. (Ky.), 408; Mercer v. Mack- Will, 93 Wis. 45. in, 14 Bush. (Ky.), 434; Clark v. 521 Jones V. easier, 139 Ind. 382; Turner, 50 Neb. 290; Clark v. Mor- Harris v. Harris, 10 Wash. 555. See ton, 5 Rawle (Pa.), 235. Sec. 435. LAW OF WILLS. 521 Willie the question of tlie sufficiency of tlie unsupported declarations of testator to establish the contents of a lost will has not been adjudicated it has been discussed by the courts to some extent.^^^ §442. Evidence of circumstances of destruction. In the absence of any evidence, as to the circumstances of destruction, a presumption arises that a will which was m the custody of testator, and which can not be found at his death, was destroyed by him with intention of revoking it.^^e But where the will was not in the custody of testator, the fact that it can not be found at his death does not raise the pre- sumption that he destroyed it with the intention of revoking it, and, accordingly, evidence of the custody of the will is al- ways admissible.^^^ But where the will was kept in the custody of the drafts- 525 In Clark v. Turner, 50 Neb. 290, the court said: "Chisholm v. Ben [7 B. Mon. (Ky.) 408] intimated that on ade- quate proof that the will had been fraudulently suppressed by the heirs, the evidence referred to might be sufficient by virtue of the maxim, 'omnia praesumuntur contra spolia- tor em.' This maxim is not easy to apply. It has sometimes been held to justify the production of slighter proof than would otherwise be re- quired. Its most frequent appli- cation is for the purpose of allow- ing secondary evidence. It would ■ certainly be very dangerous to ex- tend it so far as to relieve a party charged with proving the contents of a written instrument from all obligation to produce some evidence of a competent character; but this phase of the ease was not submitted to the jury by any instruction given or asked, at least so far as the con- tents of the will are concerned. The general verdict for the contest- ants precludes us from examining the evidence on this point on the theory that spoliation by the con- testant was established. The policy of the statute of wills, like the statute of frauds, is that it is bet- ter that occasional injustice should be done in exceptional cases upon failure of legal proof, than that transactions within the statute should in all cases be left to the un- certainties of parol evidence. So the courts in giving eflfect to the statutes should pursue the same policy and should avoid meeting hard cases by adopting rules which generally applied would defeat the objects of the legislature." 526 Gardner v. Gardner, 177 Pa. St. 218 ; Harris v. Harris, 10 Wash. 555; Steinke's Will, 95 Wis. 121. 527 Coddington v. Jenner, 57 N. J. E. 528; 41 Atl. 874, affirmed 45 Atl. 1090; Gardner's Estate, 164 Pa. St. 420; Harris v. Harris, 10 Wash. 555; Steinke's Will, 95 Wis. 121. 522 LAW Off WILLS. man in his safe, to which testator had access, and which he had frequent opportunities to destroy, it was held that this was insufficient to overcome the presumption of destruction by testator, arising from its non-production.^^^ §443. Declarations of testator as to circumstances of destruction. The declarations of testator are held to be admissible in evi- dence, both to rebut the presumption of revocation which arises from the disappearance of a will which was in tes- tator's custody, and to strengthen such jiresumption.^^^ Thus, the declarations of testatrix made within three days of her death, that her will was still in existence, and that the notary with whom she had originally left it, still had it, were held sufficient to rebut any presumption of revocation arising from the fact that the will could not be found, and that the notary testified that he did not have the will, and believed that tes- tatrix had it last.^^*^ 528 Keesy v. Dimon, 91 Hun, G42. (The court was further strengthened in this conclusion by the fact that testator had subsequently made and revoked another will.) cioLambie's Estate, 97 Mich. 49 Belirens v. Behrens, 47 O. S. 323 Gardner's Estate, 164 Pa. St. 420 Harri:i v. Harris, 10 Wash. 555 Steinke's Will, 95 Wis. 121. "Where, as here, it is established that the testatrix properly executed a valid will, and the same was last known to be in her possession, but can not be found on her death, there is a prima facie presumption that she destroyed it with the in- tention of revoking it, but such pre- sumption may be overcome by com- petent evidence. . . Of course, if such subsequent declarations are ad- missible in evidence to overcome such presumption they are also ad- missible to support such presump- tion. True, upon the principles al- ready stated in respect to admit- ing such declarations on the ques- tion of undue influence, her subse- quent declarations to the effect that she had destroyed her will by burn- ing the same or by any other of the prescribed methods, would not be evidence of the fact so declared, much less that such destruction was with the intent to revoke, but they would tend to prove that she died, in the belief that she had left no will, and thus support the presump- tion of revocation arising from the fact that it Avas last known to be in her j^ossession, but could not be found upon her death." Valentine's Will, 93 Wis. 45. 530 Steinke's Will, 95 Wis. 121. LAW OF WILLS. 523 5444, Admissions against interest. The admissions of parties interested- made against their interest are said to be admissible in questions of revocation and spoliation.'^^^ §445. Evidence of character and motives of testator and alleged spoliator. Evidence of testator's character is admissible, in so far as it shows his tenacity of purpose, and thereby the probability of his revoking his will.^^^ So, in evidence of testator's feel- ing towards those who would take if he were to die inte- state.^""^^ So evidence of the conduct, character, and interest of those who were about testator, and had opportunity to de- stroy his will, is admissible as bearing upon the question whether testator destroyed his will or someone else.^^^ VII— EVIDENCE IN CASES OF HOLOGRAPHIC AND NUNCUPATIVE WILLS. §446. Holographic wills. The only evidence which is ordinarily necessary or admis- sible at the probate of a holographic will is evidence of tes- tator's handwriting. This may be proved by any competent wit- ness who has such knowledge of testator's handwriting that he can testify thereto. Under most modem statutes the beneficiaries under the will are coni})etent witnesses.^^^ However, it has been said that in case of doubt, as to whether the writing 531 Sugden v. St. Leonard's, 1 P. the person who would be benefited D. 154 ; Lambie's Estate, 97 Mich. by the revocation.] 49; Nelson v. Whitfield, 82 N. Car. 534 Gardner v. Gardner, 177 Pa. 46. St. 218. 532 Gardner's Estate, 164 Pa. St. 535 Morvant's Succession, 4.5 La. 420; Gardner v. Gardner, 177 Pa. Ann. 207; Martin v, MeAdams, 87 St. 218. Tex. 22.5: 27 S. W. 255. distinguish- 533 Brown v. Brown, 10 Yerg. ing Lewis v. Aylott., 45 Tex. 190 (Tenn.), 84. [Where evidence was (attesting witnesses to a nuncupa- received as to testator's hatred for tive will ) . 624 LAW OF WILLS. was meant as a will, declarations of testator to the effect that he would not make a will are admissible.^^^ The burden of proof is upon the propounder of a holographic will.^^^ Where a holographic instrument is treated as a will, only when found among testator's valuable papers, the fact that testator had such an instrument in his possession before his death, and that it was found among his valuable papers on the day after his death, makes out a prima facie case that it is his will.* It is said that a holographic will should not be held -a forgery, except on clear evidence, where the handwriting is positively identiiied. "The weight of the testimony to justify a judgment annulling a will should make it appear with some certainty that the will is a forged paper." ^^^ §447. Nuncupative wills. The rules applicable to the execution of ordinary written wills apply for the most part to nuncupative wills. Owing to the fact that the nuncupative will is oral, some differences must necessarily exist. Some courts have apparently held that the burden of proof in nuncupative wills is greater than in ordinary wills. Thus it has been said that evidence of nuncupative wills must be of "the clearest and most convinc- ing character." ^^^ The requisite number of witnesses must state under oath the existence of all facts necessary to its validity, including the rogafio testiumJ''^^ Since the statutes controlling nuncu- pative wills usually provide that the witnesses must be dis- interested, the beneficiaries are not competent.^^^ 536Crutcher v. Crutcher, 11 539 Lewis v. Aylott, 45 Tex. 190; Hump. (Tenn.), 377. Mitchell v. Vickers, 20 Tex. 377. 537 Gaines's Succession, 38 La. 540 Bundrick v, Haygood, 106 N. Ann. 123; Collins v. Collins (N. Car. 4G8. Car.), 1899, 34 S. E. 195. 54i Vrooman v. Powers, 47 O. S. 538 Barlaw v. Harrison, 51 La. 191 ; Lewis V. Aylott, 45 Tex. 190. Ann. 875; 25 bo. 378. See Sec. 238. 525 LAW OF- WILLS. Viii-EVIDENCE OF REVOCATION. §448. Burden of proof. Upon the issue of revocation the burden of proof is always upon the .arty alleging such revocation-^" and in the absence of any evidence of the existence of a later w.ll it is error to charge that it is for proponents to show that the will had not been revoked or cancelled.'^^^ _ This statement, of course, assumes that evidence of execu- tion and the like has been offered, tending to establish the facts necessary to the validity of the will. §449. Presumptions where will is missing. If a will or codicil, known to have been in existence dur- ing testator's lifetime, and in his custody, can not be found at his death, a presumption arises that such will was destroyed bv testator in his lifetime with the intention of revoking, akd in the absence of rebutting evidence this presumption is sufficent to justify a finding that the will was revoked The reason underlying this rule was given by Chancellor Walworth in Betts v. Jackson.-'^ -Legal presumptions are founded upon the experience .*2 01mstead's Estate, 122 Cal. ner, 120 ^--27^7^^698' 224- 54 Pac. 745; Behrens v. Beh- Hope, 52 Mich. 65; 17 N W. 698 rens: 47 0. S. 323 (modified by pe- Cheever v. North, 106 M.eh. culiarity of practice in Ohio) ; Behrens v. Behrens 47 OS 323 B^:: V. HartLn, 115 Pa. St. 32; ;7-^"^^^^"^^;^tl^,?'Tohi^) Padelford's Estate, 190 Pa. St. 35. Blymeyer's Will, Goebd (Oh.o) 5.3 Brown v. Walker, - Miss. 14; loser's Appeal 87 Pa^ St. 67 _ j^ g^ -04 Stewart's Will, 149 Pa. St. ill, 544Wargent ;. HoUings, 5 Hagg. Gardner v. Gardnei"^ 177 Pa^ St Ecc 245- Lillie v. LiUie, 3 Hagg. 218; Durants v. Ashmore, 2 Rich. ?cc' 184 Jacques v. Horton, 76 (S. Car.) , 184 ; Minkler v. Minkler 2:238;'johln.Wn.40(>i.. 14^- ^^^^^^ ^:^' I ^Jtu.^uZr\^. SLejre..Cir.App.)nS99),53 434; Minor v. Guthrie, — Ky. -; S- ^^ • bU- 4 S. W. 179; Davis v. Sigourney. 8- ^^^ 6 Wend. 173. Met. (Mass.), 487; Howell v. Hor- 526 LAW OF WILLS. and observation of distinguished jurists as to what is usually found to be the fact resulting from any given circumstances, and the result being thus ascertained, whenever such circum- stances occur they are prima facie evidence of the fact pre- sumed; and I have no doubt that five wills, made with all due formality, have been destroyed by the testators either in secret or when no one was present to be a witness to prove the fact, to where there has been one destroyed or suppressed bv fraud, or lost by time or accident before the death of the testator." ^"^^ For the same reason the finding among the papers of, tes- tator, apparently in his custody during his lifetime, of a will torn, cancelled and the like, raises a presumption that such act, manifest upon the will, wasv done by testator in his lifetime with intent to revoke the will.^^'^ This presumption is not conclusive. At the utmost it is a prima facie presumption of law, and may be rebutted by showing either that the act was not done by testator or was not done animo revocandi.^'^^ Where the will is destroyed the burden of proof is upon the party alleging that it was not destroyed by testator, or was destroyed by him while incompetent to revoke his will.^"*^ Whether any presumption arises where a will was executed in duplicate, and one of the originals can not be found, was 546 Quoted and approved in Beh- Eq. 501 ; Smock v. Smock, 3 Stock- rens v. Behrens, 47 O. S. 323. et, 156; Tomlinson's Estate, 133 Pa. 547 Christmas v. Whinyates, 3 Sw. St. 245. & Tr. 81; 32 L. J. P. 73; 9 Jur. 548 Whitely v. King, 17 C. B. N. (N. S.), 283; 8 L. T. 801; 11 W. S. 756; Johnson's Will, 40 Conn. R. 371; Davies v. Davies, 1 Lee, 587; Smiley v. Gambill, 2 Head. 444; Lambell v. Lambell, 3 Hagg. (Tenn.), 164; Mcintosh v. Moore 568; Baptist Church v. Robbarts, (Tex. Civ. App.), 1899; 53 S. W. 2 Barr 110; King v. Ponton, 82 611; Valentine's Will, 93 Wis. 45; Cal. 420; Olmstead's Estate, 122 Steinke's Will, 95 Wis. 121; Shack- Cal. 224; Woodfill v. Patton, 76 Ind- lett v. Roller (Va.) (1899) ; 34 S. 575; Steele v. Price, 5 B. Mon. E. 492. (Ky. ), 58; Townshend v. Howard, 549 Mcintosh v. Moore (Tex. Cir. 86 Me. 285; Bennett v, Sherrod, 3 App. 1899); Shacklett v. Roller Ired. 303; White's Will, 25 N. J. (Va.) (1899) ; 34 S. E. 492. LAW OF -WILLS. 527 discussed in a recent Michigan case, but as the record did not present the question properly it was not decided.^ ^° §450. Declarations of testator. ■ The declarations of testator, by the weight of authority, are admissible to show his intention to revoke or not to re- voke, where such intention is material, whether such decla- rations strengthen or rebut any presumption raised from the established facts ; ^^^ even where such declarations are made subsequent to the time of the alleged revocation.^^^ Thus, where a will could not be found at the death of testatrix a presumption arose that testatrix had destroyed it, since the notary who drew it testified that he thought that testatrix had it ; but her declarations were admissible to rebut this presumption ; and such declarations made within three days of her death to the effect that the will was in existence and unrevoked, and that it was in the notary's custody, were sufficient to justify a finding that the will was not revoked.^^^ Where a will could not be found at testator's death, the declarations of testator to the effect that he had destroyed it were admissible to strengthen the presumption of revoca- tion.^^^ Testator's declarations tending to show that an act of destruction was committed while he was insane are admis- 550 Hurton v. Hurton, 113 Mich. Youndt v. Youndt, 3 Gr. (Pa.), 634. See Sec. 253. 140; Stekike's Will, 95 Wis. 121. 551 Keen v. Keene, 42 L. J. P. 61 ; Contra, Caenian v. Van Harke, 33 L. R. 3 P. 105 ; 29 L. T. 247 ; John- Kan. 333. holding that such decla- son's Will, 40 Conn. 587 ; Chisholm rations are admissible only when V. Ben, 7 B. Mon. (Ky.), 408; Col- part of the res gestae, citing Hayes logan V. Burns, 57 Me. 449 ; Town- v. West, 37 Ind. 21 ; Mooney v. send V. Howard, 86 Me. 285; Pick- Olsen, 22 Kan. 69; Waterman v. ens V. Davis, 134 Mass. 252; Gage v. Whitney, 11 N. Y. 157. Gage, 12 N. H. 371; Smock v. 553 steinke's Will, 95 Wis. 121. Smock, 11 N. J. Eq. 156; Behrens So Blymeyer's Will, Goebel (Ohio). V. Behrens, 47 O. S. 323; Smiley v. 14; Wiswell's Will, Goebel (Ohio), Gambill, 2 Head (Tenn.), 164; Val- 19. entine's Will, 93 Wis. 45 ; Steinke's 554 Behrens v. Behrens, 47 O. S. Will, 95 Wis. 121. 323; Shacklett v. Roller (Va. 552 Boyle V. Boyle, 158 111. 228; 1899) ; 34 S. E. 492. Behrens v. Behrens, 47 0. S. 323; 528 LAW OF WILLS. sible.^^'^ So are his declarations made before he became in- sane, tending to show that he had revoked the will before that time.^^^ Where a Mall had been torn and then pasted together, the declarations and acts of testator while collecting the pieces of the will and pasting them together were admissible to show that no revocation was intended.^^''^ A memorandum made bj testatrix on the will was admis- sible to show that the act of revocation was done by her and with intention to revoke the will.^^* But the declarations of testator are not admissible to estab- lish the fact of the revocatory act,^^^ and his declarations are not admissible to establish the existence of a later will revoking the one offered for probate ; ^^^ nor are declarations of the testator that he had made his -will in duplicate and had de- stroyed one of the originals in order to revoke both, admis- sible.^^^ And where the will is in fact cancelled, the declara- tions of testator, while admitted in evidence without criticism from the reviewing court, were held not conclusive as to the fact of revocation.^ ^^ Where the will is in fact cancelled, declarations of testator tending to show his dissatisfaction with the old will and his intention to make a new will are admissible.^^^ Where no fact of revocation is sho%vn, the declarations of testator that he intended to revoke his will are inadmissible.^^^ 555 Johnson's Will, 40 Conn. 587. sei Atkinson v. Morris (1897), 556Shack]ett v. Roller, (Va. Prob. 40. 1899); 34 S. E, 492. 562 Olmstead's Estate, 122 Cal. 557 Collagan v. Burns, 57 Me. 449. 224. 55sKirkpatrick's Will, 7 C. E. 563 Townsend v. Howard, 86 Me. Gr. (N. J.), 463. 285; Semmes v. Semmes, 7 Harr. 559 Slaughter v. Stevens, 81 Ala. & J. (Md.), 388; Johnson v. Brails- 418; Toebbe v. Williams, 80 Ky. ford, 2 Nott. & McC. 272: Hairs- 661 ; Lewis v. Lewis, 2 W. & S. ton v. Hairston, 30 Miss. 276. (Pa.), 455. 564 IJarnewall v. Murrell, 108 Ala. 560 White's Will, 25 X. J. Eq. 366; Taylor v. Cox, 153 111. 220. 501; Noyes's Will, 61 Vt. 14. 529 LAW OF WILLS. §451. Declarations of legatees. The declarations of a legatee or devisee under a will, as to the fact of revocation of such will, are admissible m evi- dence if made after the interest of such beneficiary arose, and if they do not affect the interests of other beneficiaries.^*'^ §452. Declarations of others. The declarations of others than testator or legatees are almost alwavs inadmissible as being hearsay evidence. Thus, declarations made by testator's sister to the effect that she had destroyed his will without his knowledge or con- sent are inadmissible to rebut the presumption of revocation which arises from the fact that the will which was in testa- tor's custody can not be found at his death.^*'^ §453. Revocation by lost will.— Burden of proof. When a lost or missing will is sought to be established as a means of effecting a revocation of the will offered for pro- bate, the burden of proof is upon those alleging it to show that it was properly execnted,^*'^ and also that its contents were such as to revoke the former will, by revocation clause or inconsistency with such will.^^^ §454. Presumptions. However, where beneficiaries under an earlier will sup- press a later one, the presumption arises that the later will was duly and legally dra^vn and executed.^^^ In many jurisdictions, as we have seen, the revocation of a later revoking will can not revive an earlier will at all where 5fi5 Lambie's Estate, 97 Mich. 49. Johnson's Will, 40 Conn. 587 ; Stern- r.fi6 Boyle V. Boyle, 158 111. 228. berg's Estate, 94 lo. 305; Davis r.67\Vest V. West, 144 Mo. 119; v. Sigourney, 8 Met. (Mass.), 487; 4G S. W. 139; McKenna v. Mc- Cheever v. North, 106 Mich. 390; Michael, 189 Pa. St. 440. Day v. Day (N. J. Eq.) ; 2 Gr. 568McIntire v. Melntir6, 102 U. Ch. 549; Knapp v. Knapp, 10 N. S. 383; Knox v. Knox, 95 Ala. 495 ; Y. 270. 569 Lambie's Estate, 97 Mich. 49. 580 LAW OF WJLLS. the later will contained a clause of express revocation, unless the earlier will is republished.^ ^"^ In such jurisdictions as permit the revocation of a later will to revive the earlier one without formal republication, there is considerable diversity as to the presumptions arising upon the revocation of the later will. In one class of jurisdictions, by force of the statute, the intention to revive the earlier will must appear expressly from the terms of such revocation, there being no presump- tion of an intention to revive the earlier will from the revo- cation of the earlier will alone.^'^^ As we have seen, parol evidence is sufficient in some ju- risdictions to show testator's intention to revive the earlier will.^^^ But such evidence must clearly show his intention to revive his earlier will when he revoked his later one. Thus, where testator had made three wills at different times, the two later ones containing clauses of express rev- ocation, and had at different times said that he would keep them all till he decided which one he wanted, the fact that only the second will could be found at his death was not, to- gether with his declarations, sufficient to establish the fact that he had revoked the third will with the intention of re- viving the second.* Under statutes which require that the evidence of the in- tention to revive the earlier will by revoking the later be in writing, parol evidence is, of course, inadmissible.^''^^ It is said by some courts that, since very person is pro- sumed to know the law, a testator who marries while dom- iciled in a jurisdiction where marriage alone operated as a revocation of a will, must be conclusively presumed to know that such act on his part revokes the will.^"^^ But this same result may be reached better from the theory that the mar- 570 See Sees. 271-274. 573 /„ re Lones, 108 Cal. 688-, 5T1 See Sec. 274. Stickney's Will, 161 N. Y. 42. 572 Pickens v. Davis, 134 Mass. 574 Sloniger v Sloniger, 161 111. 252. See Sees. 273, 274. 270. ■ Williams v. Williams, 142 Mass. 515. LAW OF WILLS. 531 riage acts as a revocation of the will independent of testa- tor's intention. The fact that testator drew an ink line through a legacy creates a presumption that he intended the natural conse- quence of his act, where by the local law this act effects a partial revocation.^'^^ §455. Proof of revoking deed. If the ground for claiming a revocation is that the will has been revoked by alteration of testator's estate, as by a deed conveying all the property disposed of by will, the deed must be proved and offered in evidence in order to establish the fact of revocation.^ '^^ 575 Batchelor's Succession, 48 La. s^e Gable v. Rauch, 50 S. Car. &5. .^n, 278. 532 LAW Ol'" W1LL.I3. CHAPTER XX. CONSTRUCTION. GENERAL PRINCIPLES UNDERLYING GONSTRUCnO*^ §456. General scope of construction. Upon the death of a testator the practical question which the law is called upon to answer is, What disposition shall be made of his property? With but few exceptions no appeal is ever made to the courts, except to settle disputed property rights. The question when a decedent can properly be said to be a testator has been discussed in the preceding chapters. This implies that he is, at the time of making the will, of full age, of sound mind and memory and under no restraint; that his will was executed with the formalities prescribed by law; that it was not subsequently revoked, and that it has been properly admitted to probate. The instrument thus established as the last will and testament of the decedent is recognized by the law as a guide to the disposition of testator's estate in deter- mining to whom testator's property is to pass. The question which is, under these circumstances, presented for judicial decision is, What does the will mean ? This topic is generally comprehended under the name of "C^onstruction." r.QQ LAW OF WILLS. §457. Definition. Constri^ction in the law of wills is the ascertaining and de- terminincr of testator's intention as expressed in his will, and its application tc existing facts and circumstances with which such intention deals.^ §458. Discussion of distinctions and classifications of construe- tion. In the most technical^ uccurate use of language Construction should probably be distinguished from Definition on the one hand and Interpretation on the other. Definition refers solely to determining the meaning of a word or phrase used in the will, either taken by itself in its prmary meaning, or as modified and affected by the context and sur- rounding circumstances. Interpretation is defined by one of our most profound writers as the ascertaining ''of the true sense of the special form of words used."^ Construction is "the drawing of conclusions respecting sub- jects which lie beyond the direct expression of the text— con- clusions which are within the spirit but not the letter of the text."^ These distinctions have been suggested by the highest au- thorities on the philosophical side of jurisprudence. Acting upon these suggestions, occasionally writers and courts have at- tempted to rewrite the Law of Construction of Wills upon this classification. While the work that has been done upon, these bases is profound and philosophical, the fundamental arrange- ment is subject to at least two serious objections. The first is that the attempt to treat Construction in the narrower meaning of the term as distinct from Definition and Interpretation re- sults in either confusion or repetition. No clear and accurate presentation of any topic under the iPhayer v. Kennedy, 109 111. = Leiber on Political Hermeneu- 360; Garth v. Garth, 139 Mo. 450; ties. Hadley v. Hadley, 100 Tenn. 440; 3 Leiher on Political Herraeneu- Pack V. Shanklin, 43 W. Va. 304. tics. 534: LAW OF WILLS. head of Construction in the broad and general sense can be given without a careful consideration of each of these three subdi- visions. It is, therefore, necessary either to repeat what has already been given under one heading after each of the other two, or to treat a given topic in detail under one heading and refer back and forth to the other two as incidental to the topic selected as the main one. A second serious objection to this arrangement is that it cuts sharply across the distinctions and classifications which have in the past in actual practice been observed by courts in deciding adjudicated cases. While the influence of philosophical juris- prudence upon the current of judicial decision is deservedly great, the mass of precedent that has ali'eady accumulated upon the subject of construction is so enormous that it is impossible to induce the courts to rearrange and reclassify these prece- dents upon bases which were not present in the minds of the judges who decided these cases. For these reasons, after careful consideration, it has been thought best to present the law on Construction on the bases or classification and general outlines of distinction which the courts today recognize in adjudicating cases. §459. Value of precedents. In determining testator's intention as expressed in his will, courts are often asked to decide the case in dispute in the same way as some previous case in which somewhat similar expres- sions were employed in the will there construed. In most cases courts are unwilling to construe a will in a certain manner merely because in a previous case they have construed a will containing similar expressions in the same manner. While such a method of construction is, at first glance, very tempting, it is radically at variance with what we shall see is the fundamental rule of construction, namely, that the intention of the testator is to be ascertained, and is to be ascertained from the language used in the entire will. An attempt, therefore, to construe the separate phrases and clauses of the will in ac- cordance with precedents is likely to lead at once to a total dis- LAW OF WILLS. '^'^^ regard of testator's intention, unless it happens that in the two wills taken each as a whole testator's intention is snhstantially the same, and to be carried out in the same way. Such a co- incidence rarely happens except in the introductory clause and attestation clause of a will. Wills are almost never drawn in any set form. In this re- spect they are strikingly different from instruments like deeds, leases, mortgages and certain types of business contracts, like insurance policies, bills of lading, etc. Instruments of each of these different classes are dra^vn each substantially alike. A precedent for construing a phrase in a deed, therefore, is likely to be a most valuable precedent for construing the same phrase in another deed, since the effective parts of the two instruments are likely to l>e almost identical. On the other hand, the construction of a phrase in a will is likely to give but little help in construing a similar phrase in another will, since the remaining effective parts of the two in- struments are likely to be widely dissimilar. While precedents are of great weight in aiding construction, they have not the controlling force that they have in most branches of law. These views have been expressed with substantial unanimity by the courts for many years.'^ *Thus in a recent Maine case of universal application in the iu- of Wentworth v. Fernald, 92 Me. terpretation of wills must continue 282, the court said: to be, as it has been, a task, if not "As is usual in this class of cases. utterly hopeless, at least of ex- many respectable authorities have traordinarily difficulty.' The analo- been cited and many rules of con- gies afforded by precedents are struction invoked by the learned helpful servants but dangerous counsel in support of their respec- masters. The same clause or tive contentions. ' With reference to phrase may appear to demand this perplexing branch of the law, the same construction m the Judon the property which did not belong to him, and over which he had no control, the will will be so construed as to apply to testator's property only.^'^ Under this doctrine the testator is also presumed to know the rules of law which control the constructon of his will. The ordinary rules of construction will, therefore, be applied, unless it clearly appears from the will itself that the testator had a different intention from that which is presumed by the ordinary rules of construction.^^ §466. Presumption against partial intestacy. Under ordinary circumstances a man makes a will to dispose of his entire estate, or, at least, of his estate as it exists at the time he makes his wilL If, therefore, a will is susceptible of two constructions, by one of which testator disposes of the whole of his estate, and by the other of which he disposes of a part of his estate only, and dies intestate as to the re- mainder, the courts will prefer the construction by which the whole of testator's estate is disposed of, if this construction is reasonable and consistent with the general scope and provi- sions of the will.-^ Th'e court is very keen sighted to Loper, 147 111. 41, affirming 49 111. discover a construction which will App. 53; Boston Safe Deposit & not violate this rule. Ingraham v. Trust Co. v. Coffin, 152 Mass. 95; Ingraham, 169 111. 432; 169 111. 25 N. E. 30; 8 L. R. A. 740; 472. Johnson v. Brasington, 156 N. Y. 27 Moore v. Powell, 95 Va. 285. 181; rev. 86 Hun, 106; Collier v. 28Bonnell v. Bonnell, 47 N. J. Collier, 3 O. S. 369; Gilpin v. Will- Eq. 540; Griggs v. Veghte, 47 N. J. iams, 17 0. S. 396; Davis v. Cor- Eq. 179; 19 Atl. 867. wine, 25 O. S. 668; Dull's Estate, 29 Leake v. Robinson, 2 Mer. 203; 137 Pa. St. 112; Cox's Estate, 180 Lett V. Randall, 10 Sim. 112; also Pa. St. 139; Oldham v. York (Tenn. 16 Eng. Chancery Rep'ts, 112; Pin- Syp.), 41 S. W, 333; Deadrick v. ney v. Newton, 66 Conn. 141; Scho- Armour (Tenn.), 10 Humph. 588; field V. Ocott, 120 111. 362 ; Tauben- Gourley v. Tliompson, 2 Sneed han V. Dunz, 20 111. App. 262, aff'd (Tenn.), 387; Jarnagin v. Conway in 125 111. 524; Whitcomb v. Rod- (Tenn.), 2 Humph. 50; Saxton v. man, 156 111. 116; 28 L. R. A. 149: Webber, 83 Wis. 617; 20 L. R. A. Winkler v. Simons, 172 111. 323, 509; Carney v. Kain, 40 W. Va. rev'g 71 IIL App. 422; Hayward v. 758. LAW OF WILLS. 545 "It will be presumed that a person when he makes and publishes a will intends to dispose of his whole estate, unless the presunjption is rebutted by its provisions or evidence to the contrary."^" Where testator provided that if his son survives his wife, the whole net income should go to his son, while ^'in case my son should die leaving my wife surviving, then during the life of my said wife, the widow of my son is to receive one- third of my son's share of said income and the issue of my son two-thirds, and upon the decease of my wife, then thp widow of my said son is to receive one-third of the principal of the trust fund, and the issue two-thirds," it was held that testator did not die intestate where his wife survived him, but died before the son, and the son then died ; but that the fund passed to the widow and children of such son.^^ But where testator has not disposed of his property by will, the courts can not, under guise of construction, make a new or corrected will for him to pass such property.^^ 30 Whitcomb v. Eodman, 156 111. 110; 28 L. R. A. 149, citing Higgins V. Dwen, 100 111. 554 ; so Woman's Union Missionary Society v. Mead, 131 111. 338; Kennard v. Kennard, 63 N. H. 303 ; Hoitt v. Hoitt, 63 N. H. 475; 56 Am. Rep. 530; Weath- erhead v. Stoddard, 58 Vt. 623. 31 Cox's Estate, 180 Pa. St. 139. 32 "It is true that courts have always leaned to constructions which will avoid intestacy, and their swift willingness in this regard has passed into a rule of construction, but there are well-defined limits, be- yond w hich the courts have not gone, and beyond which they could not go without subverting all rules and leaving the interpretation of every will to the mere cajjrice and whim of the chancellor. One of these rules, firmly established and never departed from or even criticised, is that the expressed intent will not be varied under the guise of cor- rection, because the testator mis- apprehended its legal effect. The testator is presumed to know the law. If the legal effect of his ex- pressed intent is intestacy, it will be presumed that he designed that intent. The inquiry will not go to the secret workings of the mind of the testator. It is not, what did he mean? but it is, what do his words mean? In Bingel v. Volz, 142 111. 214; 34 Am. St. Rep. 64. it is well said: "The purpose of consti'uction as applied to wills is unquestionably to arrive if possible at the intention of the testator, but the intention to be sought for is not that which existed in the mind of the testator, but that which is expressed in the language of the will." Estate of Young, 123 Cal. 337, citing and following Abercrom- bie V. Abercrombie, 27 Ala. 489; Arthur v. Arthur, 10 Barb. 9 ; Cald- well V. Caldwell, 7 Bush. 515; Stur- 546 LAW OF WILLS. Where testator attempts to dispose of his property bj a gift which is void at law, and there is no residuary clause, such property descends as intestate.^^ Income to be accumulated in excess of the period allowed by statute descends as intestate property, where the gift of the accumulated fund is contingent, and the beneficiaries can not be ascertained until the end of the accumulation period. •"^'^ So where the persons to whom certain stock is bequeathed can not be ascertained, the dividends are intestate property.^^ But where the legacy was lawful on its face, and failed only because the evidence showed it was held on an unlawful parol trust, it was held on a resulting trust for testator's heirs and next of kin, but was not intestate property.^^ So where the residuary clause merely attempts to pass any property "not hereinbefore disposed of," a void devise does not pass under such clause, but passes as intestate property.'^" So, in the absence of a residuary clause, a lapsed devise or legacy descends as intestate property,^^ unless testator has specifically provided for its disposition in case of such lapse. Such provision of testator must, of course, be followed.^^ Where testator intends to make a disposition of his prop- erty, but fails to do so by reason of an ambiguity in the dis- positive clauses,''^ or where testator, in providing for his prop- gis V. Cargill, 1 Sand. Ch. 318; Rosborough v. Hemphill, 5 Rich. Eq. 95. To the same effect are. Given V. Hilton, 95 U. S. 591; Cleghorn V. Scott, 86 Ga. 496; Collins v. Col- lins, 126 Ind. 559; Daman v. Bib- ber, 135 Mass. 458; State v. Holmes, 115 Mich. 456; Leigh v. Savidge, 14 N. J. Eq. 124; Booth v. Baptist Church, 126 N. Y. 215; Smith v. Jones, 4 Ohio, 115; Gilpin v. Wil- liams, 17 O. S. 396; Colston v. Bishop, 1 Ohio C. C. 460; Alexan- der V. Mendenhall, 32 Weekly Law Bull. 173; Martin's Estate, 185 Pa. St. 51; Gourley v. Thompson, 2 Sneed. 387. 33 State V. Holmes, 115 Mich. 456; Booth v. Baptist Church, 126 N. Y. 215 ; Martin's Estate, 185 Pa. St. 51. 34 Martin's Estate, 185 Pa. St. 51. 35 Cleghorn v. Scott, 86 Ga. 496. 36Fairchild v. Edson, 154 N. Y. 199, affirming 77 Hun. 298. 37 Kelly V. Nichols, 17 R. I. 306; 19 L. R. A. 413. 38 Collins V. Collins, 126 Ind. 559; see Sec. 744. 39 Smith V. Secor, 157 N. Y. 402. 40 Lippincott v. Davis, — N. J. — (1894) ; 28 Atl. 587. LAW OF WILLS. 547 erty under various contingencies, omits to make provisions for the contingency which actually arises,^^ such property de- scends as intestate. Where testator devised to his widow his entire residuary estate in fee, and provided that if she remarried she should have one-third of such residue, it was held that on her re- marriage two-thirds of the residue was unprovided for and was intestate property."*^ So wliere testator grants a life estate to one with a con- tingent remainder to unborn children, the fee subject to the first taker descends to testator's heirs as intestate property, subject to be divested by the subsequent birth of the children to whom the remainder was given.^^ So where testator devised a life estate to one with power to dispose of the remainder by will, such remainder descends as intestate property, subject to be divested by the execution of the power to convey.^^ So where testator devised property to his daughter for life, with power to devise this property by will, and such daughter was his only heir at law, it was held that she took a fee by descent, although testator clearly intended that she should take only a life estate.^ ^ Where a devise is revoked by codicil, and no disposition is made of it, it descends as intestate property.^^ §467. Presumptions as to disinheritance. The presumptions on the subject of disinheritance must, in construing a will, be carefully balanced against those upon 41 Bennett v. Packer, 70 Conn. 67; 9 L. R. A. 211; Nightingale v. 357; De Silver's Estate, 142 Pa. St. Burrell, 15 Piclc. 104; Harris v. 74; Nebinger's Estate, 185 Pa. St. McLaren, 30 Miss. 533; Robinson v. 399; Wood v. Mason, 17 R. I. 99. Palmer, 90 Me. 246; Gilpin v. 42 Bennett v. Paclver, 70 Conn. Williams, 25 O. St. 295.; Stokes v. 357. ( Hence the widow was entitled Vanwyck, 83 Va. 724; In re Ken- to a distributive share of such per- yon, Petitioner, 17 R. I. 149 ; Bigley sonalty.) v. Watson, 98 Tenn. 353; 38 L. R. A. 43 .Joslin V. Hammond. 3 Myl. & 679. K. 110; Rand v. Butler, 48 Conn. 4* Folger v. Titcomb, 92 Me. 184; 293; Harrison v. Weatherby, 180 Collins v. Wickwire, 162 Mass. 143. HI. 418; Coots v. Yewell, 95 Ky. 45 Wilder v. Howland. 102 Ga. 44. 367; Hills v. Barnard, 152 Mass. 46 Minkler v. Simons, 172 HI. 323. 5-18 LAW OF WILLS. the subject of partial intestacy, since the two are sharply con- trasted, and possibly in some cases may even prove antagon- istic. The older law books and many cases insist quite strenuously that every reasonable construction in the will must be made in favor of the heir at law ; and that he can be disinherited only by words clearly and necessarily producing that effect.^ ^ "In construing a will under which title is asserted by a stranger or person not claiming by immediate descent, all doubts will be resolved in favor of the heir or next of kin, it being a maxim that the heir will not be disinherited except by express words or by necessary implication."^^ The earlier statements of this legal principle are possi- bly somewhat modified by modern authority. If the tes- tator in any particular case had chosen to revoke his will and to die intestate, his property would descend in accord- ance with the Statutes of Descent and Distribution. This possibility that his relatives may succeed to his property un- der these statutes is one which is looked upon by many peo- ple as almost in the nature of a right, and there is a strong feeling that the testator owes a legal duty to provide for them by will. Further, if testator had made a will which disposed of but part of his property, the residue of his estate would pass under these laws. The courts are nearly unanimous in holding that where tes- tator does not by will dispose of the whole of his estate, no negative words of exclusion can prevent the rest of the property from passing under the Statutes of Descent and Dis- 47Wilkins v. Allen, 18 How. (U. 279; Mathews v. Krisher, 59 O. S. S.), 385; Walker V. Parker, 13 Pet. 562; Mclntire v. Ramsey, 23 Pa. (U. S.), 166; Pendleton V. Larrabee, St. 317; Stewart's Estate, 147 Pa. 62 Conn. 393; Bill v. Payne, 62 St. 383; Hoover v. Gregory, 10 Conn. 140; Downing V. Bain, 24 Ga. Yerg. (Tenn.), 444; Wootton V. 372; Wilder v. Holland, 102 Ga. Redd, 12 Gratt. (Va.),196. 44; Andrews v. Harron, 59 Kan. This extreme statement is some- 771 ; Howard v. American Peace So- what qualified by other cases. Ban- ciety, 49 Me. 288 : Mullarky v. Sul- ning v. Banning. 12 O. S. 437. livan, 136 N. Y. 227 ; Bane v. Wick, 48 Stewart's Estate, 147 Pa. St 19 Ohio, 328 ; Crane v. Doty, 1 O. S. 383. 549 LAW OF WILLS. tribntion. It not infrequently ^lappens that testator by name specifically provides that certain of his relatives _ shall not receive any part of liis estate. Such a provision is entirely ineffectual as to his intestate property."^^ \nd so where testator makes specific bequests of his prop- erty, and leaves a part of the same undisposed of, such part will descend in accordance with the law of descent and distri- bution, irrespective of the actual intention or expectation oi testator ^^ So where testator shows by his whole will that his intention is to exclude certain near relatives in favor of more distant ones, any property undisposed of will, nevertheless descend as intestate property to such near relatives to the exclusion of those more remote.^ ^ ^ So where testator left his wife a life estate m his realty, and made no disposition of the remainder, which, under the statutes then in force, would descend to his brothers and sisters, it was held that where the law of descent was changed before testator's death so that this intestate realty, being non- ancestral property, descended to his wife in preference to his brothers and sisters, such property must descend m accord- ance with the statutes in force at testator's death, although testator clearly did not intend that his wife should have a fee.^2 In some states, however, this rule is not in force. The courts attempt in these states to carry out testator's intention by construing these negative words as a gift to the remammg heirs or next^of kin, to the exclusion of the heir excepted.^s This effect was given to a will as follows: "For sundry 40Laurencev. Smith, 103 111. 149; State v. Holmes, 115 Mich. 456 Zimmerman v. Hafer, 81 Md. 347; Clarkson v. Poll, 17 K L 646 32 Atl. 316; Wells v. Anderson (N. Mathews v. Krisher, 59 O. S. 5b- H ) 44 Atl. 103 : Andrews v. Har- Youn- v. Kinkead, 101 Ky. 252. von,' 59 Kan. 771; Gallagher v. 5i Bill v. Payne, 62 Conn. 140 Crooks, 132 N. Y. 338; Crane v. 52 State v. Holmes, 115 Mich 456 ; Doty, 1 0. S. 279. Mathows v. Krisher, 59 O St. 562. 50 Bill V. Pavne, 62 Conn. 140: ^« Tabor t. Mclntire, 79 Ky. 505; Wilder V. Holland, 102 Ga. 44; Allen's Succession, 49 L. A. Ann. Andrews v. Harron, 59 Kan. 771; 1096. 550 LAW OF WILLS. reasons and bad treatment, it is my will that Boone Tabor shan't have any of my property and Thos. Mclntire only through a trustee in the way of clothes and something to keep him from suflfering."^'* Courts, however, go considerably farther than this in pro- tecting the interests. of the heirs and next of kin. In the con- struction of the provisions of a will in some jurisdictions the general rule is laid down in almost the same language as in the common law rule, that the heir at law is not to be disinherited unless such an intent clearly appears from the language of the will, either expressly or necessarily implied.^^ Where this principle is not expressed in such sweeping language, it is always held by the courts where the will is equally susceptible of two constructions, one in favor of the heirs and the other in favor of some more distant relative, that the one in favor of the heir will be preferred.^® So in construing a will, the courts, in case of doubt, lean toward a construction which conforms as nearly as possible to the Statutes of Descent and Distribution.^'^ Thus, in a devise to testator's children in existence at the time of his death, it will be presumed that testator intended an equality of distribution among them.^^ In the case of the death of some of testator's children, the law will, unless the contrary appear on the face of the will, assume that a distribution per stirpes in accordance with the prin- ciple of lineal representation is intended,^^ if lapse is pre- vented in any way. 54 Tabor v. Mclntire, 79 Ky. 505. 499 ; Fahnestock's Estate, 147 Pa. 55 Pendleton v. Larrabee, 62 Conn. St. 327. 393; Wilder v. Holland, 102 Ga. 5S pinkham v. Blair, 57 N. H. 44; Mathews v. Krisher, 59 0. S. 226; Patterson's App., 128 Pa. St. 562; Bell's Estate, 147 Pa. St. .389, 269. 1892; 23 Atl. 577; Stewart's Es- so Doe v. Considine, 6 Wall. 458 ; tate, 147 Pa. St. 383. Dale v. White, 33 Conn. 294; Teele 56 Pendleton v. Larrabee, 62 Conn. v. Hathaway, 129 Mass. 164; Edger- 393; Do\\Tiing v. Bain, 24 Ga. 372; ly v. Barker, 66 N. H. 434; 28 L. Thompson v. Shackelford, 6 Tex. R. A. 328; Goebel v. Wolf, 113 N. Civ. App. 121. Y. 405; Dunlap's Appeal, 116 Pa. 57Geery v. Skelding, 62 Conn. St. 500; Chess's Appeal, 87 Pa. St. 362; .30 Am. Rep. 361. LAW OF WILLS. 551 Where a residuary clause is capaWe of two constructions, one of which, making it a general residuary clause, will result in the exclusion of testator's heirs, and the other of which, ■ making it a particular residuary clause, will leave a provision for testator's heirs under the intestate laws, that provision will be preferred which leaves a provision for the heirs.^^ §468. Devise by implication. Since the courts endeavor to ascertain the intention of testa- tor from his whole will, rather than disjointed parts thereof, and enforce this intention, if lawful, when thus ascertained, it follows that it is possible for testator to dispose of property, not by any formal disposition in his will, but by necessary implication from his will taken as a whole. The presumption is very strong, however, against his having intended any devise or bequest which he has not set forth in his will. There must, as has been quoted in recent cases, be a probability arising from the whole will that testator intended to make the bequest or devise, which he has not set forth expressly, so strong that it can not be supposed that anv other intention existed in the mind of testator.^^ But where testator clearly intends to dispose of property by his will to certain beneficiaries, the courts will enforce such a provision though no gift is made in formal language,^^ Where an estate is devised to the heirs or next of kin of testator by such description, after the death of another, a life estate is by implication created in that other.^^ 60 Davis V. Davis, 62 O. S. 411. 62 Boston Safe Deposit & Trust eiMcMichael v. Pye, 75 Ga. 189; Co. v. Coffin, 152 Mass. 95 ; 8 L. R. Reinhardt's Estate, 74 Cal. 365; A. 740; Masterson v. Townshend, Eneberg v. Carter, 98 Mo. 647; 123 N. Y. 458 ; 10 L. R. A. 816, cit- Barnhard v. Barlow, 50 N. J. Eq. ing Goodright v. Hoskins, 9 East. 131; De Silver's Estate, 142 Pa. 306 ; Jackson v. Billinger, 18 Johns. St. 74; Sutherland v. Sydnor, 84 386. Va. 880; Bartlett v. Patton, 33 W. 63 /„, re Springfield (1894), 3 Ch. Va. 71 ; 5 L. R. A. 523. This is sub- 603; 64 L. J. Ch. (N. S.) 201; stantially the language used by Smith's Trusts, L. R. 1 Eq. 79; Lord Eldon in Wilkinson v. Adam, Blake's Trusts, L. R. 3 Eq. 799; 1 Ves. & B. 445. Masterson v. To^vnshend, 123 N. Y, 458. 552 LAW OF WILLS. But where the devise after the death of another is to strangers to testator's blood"'^ or to persons, describing them bj name, who happen to be heirs or next of kin of testator,*^'^ there will be no devise by implication to the person at whose death the estate is to take effect. The reason for this dis- tinction is, that where the testator specifically devises property to his heirs or next of kin at the termination of a life estate, he can not intend that they should take any sooner; and since he evidently means to dispose of the beneficiary interest en- tirely, the person at whose death the estate is to take effect must be intended by testator as the beneficiary in the mean- time. But where the devise or bequest is to strangers at the termination of the life estate, it is simply a case of partial intestacy; and the undisposed of interest in the property during the life of the person indicated goes to the heirs and next of kin. Where the testator recites in his will that he has made a specified provision for a designated person in another part of the will, and this recital incorrectly, but nevertheless clearly, shows the intention on the part of testator to make such dis- position of his property by will, it is therefore held to create a devise by implication.^^ But where the testator in his will recites erroneously that he has conveyed certain of his real estate by deed to a certain named person, it does not show an intention to dispose of the property by will, but merely testa- tor's opinion as to the legal 'effect of some pre-existing instru- ment. If, therefore, such pre-existing deed is for any reason invalid, the reference to it in the will can not be held to amount to a devise by implication of the property described in such deed to the grantee therein.^''' 64 Ralph V. Carriek, 11 Ch. Div. v. Geiger, 69 Ga. 498: Hunt ex rel 8"3. V. Evans, 134 111. 496; 11 L. R. A. 65 7?e Springfield (1894), 3 Ch. 185. 603; 64 L. J. Ch. (N. S.) 201: Gil- 67 Hunt ex rel v. Evans, 134 111. pin V. Williams. 25 0. S. 283. 496; 11 L. R. A. 185; Benson v. 66Farrer v. St. Catharine's Col- Hall, 150 111. 60: Williams v. lege, L. R. 16 Eq. 19; Jordan v. Allen, 17 Ga. 81; Zimmerman v. Fortescue, 10 Beav. 259; Harris v. Hafer, 81 Md. ,347; 32 Atl. Harris, Ir. Rep. 3 Eq. 610; Atwood 316: Swenson's Estate, 55 Minn. LAW OF WILLS. 553 So other declarations, merely showing testator's opinion as to the ownership of certain property, can not be construed so as to amount to devise by implication. Thus, a declaration in a will to the effect that testator had no separate property of his o^vn, but that his entire estate consisted in his interest in the community property owned by himself and his wife, has not the effect of converting his separate property into community property, nor does it amount to an implied devise to his wife of one half of his separate estate.^^ iSTor do testa- tor's declarations, showing a mistake as to law of descent, amount to a devise by implication. Thus, where community property would descend to the wife in case of intestacy, no devise by implication was created by a provision that such property should go "according to law, except my sister A shall be excluded from. any share in my estate," though testator evidently believed that his half of the community property would, in case of intestacy, go to his brothers and sisters.*^^ Where the testator provided that his estate should remain as it is during his wife's lifetime, and at her death it should be equally divided among his children, it was held that his wife took a life estate by implication.'^*^ And where the testator ex- pressly devises a life estate to his wife, and then made a devise over "of so much thereof as may remain unexpended," it was held that such a provision conferred by implication a power of disposition upon the widow.'^^ And where testator devised land in trust to pay a fixed annuity to his wife as long as she should remain unmarried, with power of sale if necessary, in which case his widow was to receive the same annuity as long as she remained unmarried, in which case, upon her death or second marriage, the proceeds should be paid to the brother of testator, it was held that this constituted 300; Tn re Bagot (1893), 3 Ch. 69 MeCown v. Owens, Tex. Civ. 348; Langslow v. Langslow, 21 App. ( 1897 ), 40 S. W. 336. Beav. 552 ; Ralph v. Watson, 9 L. J. 7o Nicholson v. Drennan, 35 S. C. Ch. 328; Bowles v. Caudle (N. C), 333; so Anders v. Gerhard, 140 Pa. 35 S. E. 604. St. 153. 68 Hatch V. Ferguson, 57 Fed. 7i Cashman's Estate, 28 111. App. Rep. 966 ; C'laniorgan v. Lane, 9 Mo. 346 ; see Sec. 695. 446. 554 LAW OF WILLS. a devise of the property itself to testator's brother, subject to the annuity to the widow. '^^ And where testator devised to a son a certain fann, ex- cluding the minerals, and then provided that each of his re- maining seven children should receive an eighth interest in the estate, it is held that, since it appeared to be the general intention of testator to make an equal disposition of his prop- erty among his children, a devise by implication of the undis- posed of eighth of the minerals was created in favor of the son to whom the farm was devised.'^^ A devise to A of all the property of testator, with a pro- vision "I desire the said A and B to have the exclusive benefit of the above bequeathed estate, free from any control of C" [C being the husband, A the wife and B the daughter], was held not to be a gift by implication to B.'^^ A devise to one for life with a remainder over, if the life tenant dies without leaving children, does not of itself create a gift by implication to the children of the life tenant.'^^ §469. Construction of wills passing both realty and personalty. While in some particular cases the prima facie meaning of words which refer to realty may be different from the meaning of the same words referring to personalty j"^^ yet where the same words are used in a will, as applying generally to both real and personal property, it will not be presumed that testator in- tended these words to refer to one thing with reference to his realty and to another thing with reference to his personal property.'^''' 72 Masterson V. Townshend, 123 N". v. Restal, 24 Beav. 218; Turner v. Y. 458; 10 L. R. A. 816. Withers, 23 Md. 18; Hoopes's Es- 73 Christie v. Christie, 162 Pa. St. tate, 18.5 Pa. St. 172. 485. 76 See Chapt. XXI. T4Balliett v. Veal, 140 Mo. 187; 77 Heilman v. Heilman, 129 Ind. 41 S. W. 736. 59; Adams v. Farley, — Miss. — 75Rawlin's Trust (C. A.), L. R. (1898); 18 So. 390; Morrison v. 45 Ch. D. 299; Scale v. Rawlins (H. Truby, 145 Pa. St. 540; Sellers v. L. E.), (1892), A. C. 342; Sparks Reed, 88 Va. 377. LAW OF WILLS. 555 §470. Inconsistent provisions. We have seen that a fundamental rule of construction is that the court, in construing a will, will endeavor to give effect to every part of the same.'''^ As a particular application of this rule rather than a separate rule, it follows that, within all reasonable limits, the courts will endeavor to reconcile two apparently inconsistent provisions of a will rather than to absolutely ignore either, or to declare that they are both void or uncertain."^^ This is especially true when the effect of the subsequent clause is not to cut dowT^i the preceding gift, but to enlarge it. "It has never been held, however, that a sub- sequent provision which diminishes a preceding gift, as by cut- ting down to a life estate a prior devise, is so far conflicting and irreconcilable with that gift as to be in a legal sense repugnant thereto, and emphatically never when the effect of the later gift is to enlarge the former."^*^ The rule already referred to,^^ that a codicil is to be con- strued, as far as is possible, so as to harmonize with the pro- visions of the will to which it is attached, is simply an applica- tion of the principle under discussion to a particular case.^^ As a last resort, in case of an absolute and irreconcilable discrepancy between two clauses of a will, the courts will enforce the clause which is last in place in the will and abro- gate the one which comes first.^^ 78 See Sec. 462. peal, 53 Pa. St. 106; Dill v. Dill, 1 79Wriglit V. Denn,10 Wheat. 239; De Saus (S. Car.), 237; Duncan v. Vandiver v. Vandiver, 115 Ala. 328 ; Philips, 3 Head. (Tenn.), 415; Co- Warner V. Willard, 54 Conn. 470; nant v. Palmer, 63 Vt. 310; 21 Jenks V. Jackson, 127 111. 341 ; Davis Atl. 1101 ; Houser v. Ruffner, 18 W. V. Hoover, 112 Ind. 423; Claflin v. Va. 244. Ashton, 128 Mass. 441 ; Cushing v. so Fahnestock's Estate, 147 Pa. Burrell, 137 Mass. 21; Prosser v. St. 327. Hardesty, 101 Mo. 593; Baxter v. si See Sec. 462. Bowyer, 19 0. S. 490; James v. §2 Sturgis v. Work, 122 Ind. 134; Pruden, 14 0. S. 251: Young v. Mc- Goodwinn v. Coddington, 154 N. Y. Intire, 3 Ohio, 498; Worman v. Tea- 283. garden, 2 O. S. 380; Parker v. Par- 83 Griffin v. Pringle, 56 Ala. 486; ker, 13 O. S. 95; Sullivan v. Strauss, Parks v. Kimes, 100 Ind. 148; Jor- 161 Pa. St. 145; Fahnestock's Es- dan v. Woodin, 93 lo. 453; Covert tate, 147 Pa. St. 327 ; Shreiner's Ap- v. Sebern, 73 lo. 564; Carter v. 556 LAW OF WILLS. This rule, however, is resorted to onlv when two clauses are so irreconcilable that they can not stand together, and is in- applicable when the will can be so construed as to give effect to the whole of it. ^^ ''Both clauses are contained in the same instrument and are both, therefore, simultaneous expressions of the testator's intent," "and, beside, as already stated, the rule which gives effect to the later expression of the testator's intent is to be resorted to only when all attempts to reconcile inharmonious provisions have proved unavailing." * §471. General rules controlling definitions. The law recognizes that in many cases wills are drawn by the testator without the assistance of legal advice. From this arose one of the most valuable maxims of- law in the construc- tion of wills, '^benigne interprefamur chartas propter sirapli- citatem laicorum."^^ It is presumed, therefore, that the words of the will are used in their popular and conventional meaning, unless from the face of the will they appear to be otherwise used.^^ Thus, a provision that the w^ife of testator should be "sole controller" of the property of testator, and charging all his just debts upon a certain fund, was held to constitute his wife his executrix, but not sole legatee.^'^ If, however, testator uses words which have a definite and well understood technical meaning, the prima facie presump- Alexander, 71 Mo. 585; Hendershot 85 Blackstone's Com., Book 2, p. V. Shields, 42 N. J. Eq. 317; Rogers 379. V. Rogers, 49 N. J. Eq. 98; Kin- se Hamilton v. Ritchie, (H. L.), kele V. Wilson, 151 N. Y. 269; (1894) ; A. C. 310; Crosby v. Mason, Coonrod v. Coonrod, 6 Ohio, 114; 32 Conn. 482; Robertson v. John- Young V. Mclntire, 3 Ohio, 498; son, 24 Ga. 102; Cowles v. Henry, Davis V. Boggs, 20 0. S. 550; Par- 61 Minn. 459; 63 JST. W. 1028; Tan- ker V. Parker, 13 0. S. 95; Howe benhau v. Dunz, 125 111. 524, affirm- V. Fuller, 19 Ohio, 51 ; Sheetz Ap- ing 20 111. App. 262 ; Vannerson v. peal, 82 Pa. St. 213; Eraser v. Culbertson, 18 Miss. 150; Edgerly Boone, 1 Hill (S. Car.), 360. v. Barker, 66 N. H. 4.34; 28 L. R. A. 84 Rogers v. Rogers, 49 N. J. Eq. 328 ; Carter v. Reddish, 32 0. S. 1 ; 98. Hart v. White, 26 Vt. 260 ; Wallace * In re Eisher, 19 R. I. 53. v. Minor. 86 Va. 5.50: 10 S. E. 23. 87Wolffe V. Loeb, 98 Ala. 426. LAW OF WILLS. 557 tion will be that he intended to use them in this sense, unless it appears plainly from the context that another meaning was intended.^^ These rules are not to be disturbed by the fact that the tes- tator was illiterate and uneducated. The presumption will be, notwithstanding that the words employed are used in their correct meaning, unless, from the will itself or from admissible evidence, it appears that some other meaning was intended.*^ Still the illiteracy of testator and his inability to express him- self in language technically correct are important in arriving- at the meaning of the language actually used by him.^^ The context of the will may show that even technical words were used in some meaning other than the one which is technically correct.^-^ §472. Punctuation and grammar. Since the law deduces testator's intention from the whole will, the courts are within the proper scope of their powers in inserting punctuation, when necessary to explain the mean- ing, where the testator has omitted this aid to clearness.^^ Further, if the intention of testator is clear the courts will give effect to it, although in so doing they may ignore in part the punctuation which the testator has actually employed.^ ^ 88 Wallace v. Minor, 8G Va. 550 ; 92 Napier v. Davis, 7 J. J. Marsh 10 S. E. 423; Marshall v. Hadley, (Ky.), 283; Lycan v. Miller, 112 50 N. J. Eq. 547; Evans v. God- Mo. 548; 20 S. W. 36. bold, 6 Rich. Eq. 26 ; Townsend v. 93 Black v. Herring, 79 Md. 146. Townsend, 25 O. S. 477. (A gift was to be paid by executors 89 Ihrie's Estate, 162 Pa. St. 369. to A "should they think proper so 90 Strong v. Cummin, 2 Burr. 770; to do to pay over from time to Davis v. Boggs, 20 O. S. 550. time" the net income to B, testa- 91 Stevenson v. Evans, 10 O. S. tor's son. As from the context the 307 ; Davis v. Boggs, 20 0. S. 550. testator evidently meant to dispose "Although the phrase 'in trust' of the income, it was held that the has a well-defined and legal mean- phrase "should they think proper" ing, it must be remembered that it applied to the gift to A, and not to is a technical phrase and peculiarly the gift to B.) Rose v. Hale, 185 liable, therefore, to be misapplied 111. 378; Wildberger v. Cheek, 94 or used in some secondary sense by Va. 517. persons not learned in the law." Davis V. Boggs. 20 O. S. 550. 558 LAW OF WILLS. And where the punctuation in the will is in evident accord with the intention of the testator, the use of capitals in the middle of a sentence may be regarded as unintentional.^^ Where testator's intention appears from the will taken as a whole, this intention can not be defeated because testator's intention is expressed in ungrammatical language.^^ §473. Modification by context. A still more striking application of the principle that tes- tator's intention is to be deduced from the whole will, is found where certain words are rejected, altered or transposed by the courts in order to give effect to his intention which appears from the consideration of the whole will. The courts are reluctant to do this. "Doubtless, unless forbidden by what appears to be the clear intention of the testator, effect should be given to every word used by him ; but cases sometimes occur where from the misuse of terms this can not be done, and the meaning of terms have to be modified, and sometimes words even rejected in order to preserve and give effect to what is the manifest intention of the testator." ^^ Still it not infrequently happens that testator makes use of words which, in their common and literal meaning, if umnodified by the context of the will, will either be inconsistent with the remainder of the will or will cause illegal dispositions of the property; in such case "the meaning of words and phrases used in some parts of the will must be derived from that which would attach to them standing alone, and then must be 94 Eberhardt v. Perolin, 49 N. J. tor's intentions. Of all instruments Eq. 570; Kinkele v. Wilson, 151 N. that need the benefit of a liberal Y. 2G9. construction — a construction that 95 Thompson v. Thompson, 4 0. S. prefers substance to mere form — 333. wills need it the most." Thompson "The terms of a will are not, of v. Thompson, supra; so Brasher v. necessity, to be construed techni- Marsh, 15 O. S. 103. cally and with strict reference to 96 Dulaney v. Middleton, 72 Md. grammatical accuracy; but they are 67, citing Thelluson v. Woodford, to be viewed sensibly and liberally 4 Ves. 227. in order to give effect to the testa- 559 LAW OF WILLS. compared with other language "-^ V Tnd thu ^e i„stn.ment, and limitations must be imphed, «"unds, but the part to *•* Groves v. Culph, 132 Ind. 186. 45 Webb V. Carney (N. J. Eq.), 1896; 32 Atl. 705. 46Higgms V. Gwenn, 100 111. 554 Priest V. Lackey, 140 Ind. 399 ; Gun diff V. Seaton, Ky. (1899), 49 S W. 179; Hobbs v. Peyson, 85 Me 498; Pickett v. Leonard, 104 N. C 326 ; Portland Trust Company v Beatie, 32 Or. 305; Jones v. Quat tlebaum, 31 S. C. 606; Oldham v, York, 99 Tenn. 68. 47Cundiff V. Seaton, — Ky. ~ (1899) ; 49 S. W. 179. * Pickett V. Leonard, 104 N. C. 326: Portland Trust Company v. Beatie, 32 Or. 305; Jones v. Quat- tlebaum, 31 S. C. 606; Oldham v. York, 99 Tenn. 68. So where testator intends to dis- pose of an entire tract, but by mis- take as to the number of acres in the tract the aggregate number of acres given to the devise is less than the entire tract, the surplus acreage must be divided pro rata among the other devisees of such tract. Ben- nett V. Simon, 152 Ind. 490; Porter V. Gaines, 151 Mo. 560. 48 0Mham v. York, 99 Tenn. 68. 49 Chace v. Gregg, 88 Tex. 552. LAW OF WILLS. 571 be given to beneficiary is not described with certainty, it may be rendered certain where the remaining clauses of the will dispose of the rest of such tract.^'* §486. Unimproved real estate. A devise of ^'unimproved" real estate does not pass realty purchased by testator to be platted into city lots on which are three dwelling houses and which is leased out by testator,^ ^ But real estate does not cease to be "unimproved" because it is leased to a tenant who has erected buildings upon such realty, which buildings, in law, remain tenant's personal property.^ ^ §487. Effect of mistake in description of real estate. It not infrequently happens that a testator devises land by a description which is correct in some respects and erroneous in others. This most frequently happens where he attempts to describe the land devised by a reference to its location in a given county, or its lot number in a given plat, or its location in a- specified section of a government survey. The general principles which control the effect of such mistakes are well settled. Upon the application of these principles of particu- lar states of fact there is a wide divergence of authority. Practically all the courts agree that if, after the false descrip- tion or part of a description is discarded, there remains in the devise language sufiiciently full and accurate to identify the subject of the gift with sufficient certainty, the property thus indicated will pass ; if, on the other hand, when the false description is eliminated from the will there is not enough left to afford a basis for identifying the subject of the gift, nothing can pass.^^ The difficulty is in determining what is a suffi- 50 Dun ford v. Jackson, — Va. — 111. 341; Pocock v. Redinger, 108 (1896) ; 22 S. E. 853. Ind. 573; Cleveland v. Spilman, 25 siEobb V. Robb, 173 Pa. St. 620. Ind. 95; Groves v. Culph, 132 Ind. 52 Coles V. Coles, — N. J. Eq. — 186; Covert v. Sebern, 73 lo. 564; (1897) ; 37 Ail. 1025. Christy v. Badger, 72 lo. 581; Eck- 53 Patch V. White, 117 U. S. 210; ford v. Eckford, 91 lo. ,54; 26 L. R. Whitcomb v. Rodman, 156 111. 116; A. 370; Thomson v. Thomson, 115 28 L. .R. A. 149 ; Allen v. Bowen, Mo. 56. 105 111. 361; Decker v. Dedker, 121 572 LAW OF WILLS. cient description of the real estate intended to be conveyed after the false description is stricken out. If the will describes the property by reference to the person from whom the testator acquired it,'^'* or by its location with reference to well known natural objects,^^ or by reference to the name which popularly attaches to the property ,^^ the fact that a further description contains an erroneous lot number, or a ref- erence to a wrong part of a government survey, does not avoid the valid and accurate description already given.^'^ So where a testator showed in his will a clear intention of disposing of the whole of his real estate, as where he devises "my real estate'" or "all my lands,'' the addition of a further and more particularly erroneous description does not avoid the effect of the general description.^^ Thus a devise of land, correctly describing it by metes and bounds, is not avoided by an erroneous statement in a will that it adjoins lands of the devisees f^ nor was a devise of the only house and lot belonging to testatrix avoided by the fact that she described it as being in a named city when it was in fact situated in a suburb of said city.^^ And a devise of a tract of land for which devisee "has a quitclaim deed of me, and that he now occupies," passes only land which has been quitclaimed by the testator and is also occupied by devisee, and does not pass another tract of land ocupied by devisee but never quitclaimed.^^ "If, after the false description is s^ Emmert v, Hayes, 89 111. 11; discarded, there remains in the de- Riggs v. Myers, 20 Mo. 239; Winkley vise language sufficient to direct to v. Kaime, 32 N. H. 268 ; Allen v. the identification of the subject with Lyons, 2 Wash. C. C. ( U. S. ) , 475. sufficient certainty, an estate will 58 Priest v. Lackey, 140 Ind. 399 ; pass thereby. But when false Ian- Pocock v. Redinger, 108 Ind. 573: guage is eliminated, and nothing re- Black v. Richards, 95 Ind. 184 : mains directing inquiry which may Judy v. Guilbert, 77 Ind. 96; Cleve- result in discovering the true subject land v. Spilman, 25 Ind. 95. of the devise, it is void." Christy 59 Wales v. Templeton, 83 Mich. V. Badger, 72 lo. 581; Eckford v. 177. Eckford, 91 lo. 54. 6o Hawkins v. Young, 52 N. J. 54 Winkley v, Kaime, 32 N. H. Eq. ,508 : 28 Atl. 511. 268. eiOgsbury v. Ogsbury, 115 N. Y. 55 Riggs v. Myers, 20 Mo. 239. 290. 56Emmert v. Hayes. 89 111. 11. LAW OF WILLS. 57g Where the real property devised is correctly described, the fact that testator did not describe the nature of his interest correctly does not prevent the property thus described from passing.**^ Where a tract of land is given to two or more in fixed proportions, and testator does not attempt to set off the por- tions by metes and bounds, the division of the property must be made according to value and not according to the number of acres. This rule holds good even where testator provides that, in the division, the part of the farm containing the home- stead buildings must be given to a designated beneficiary.*^^ A devise of real estate may be so vague and uncertain as to pass no interest. This usually occurs where the property has not been referred to by ownership or by location. Thus where testator directed his executors to purchase "a tract of land at or near the residence" of beneficiaries for their use for life, it was held that such a devise was too vague to pass any interest in any real estate.^^ Up to this point the authorities are comparatively unani- mous. The conflict of authority arises in cases where there is no sufficient description of the property, by reference to its location, or its ownership, outside of the description which is in part erroneous. In these cases the question presented was whether the courts can reject a part of the description, such as the lot number, or the description of a quarter section, and treat the rest of the description as the plat, survey, or addition to the city, or the number of the section, township and range, as sufficient to pass the real estate. The greater weight of modern authority probably is that where the will is so worded as to show testator's intention to pass his lands in the given plat or section and the like, the description of the particular lot, quarter section and the like may be rejected if erroneous.^^ 62 Hatch V. Ferguson, 68 Fed. Rep. 64 Taylor's Estate, 81 Cal. 9. 43; 3,3 L. R. A. 759; Pearson's Es- tate, 99 Cal. 30; In re Smith, 154 ss Doughten v. Vandever, 5 Del. Mass. 479. Ch. 51 ; Whitcomb v. Rodman, 156 esMeClure v. Taylor, 109 N. C. 111. 116: 28 L. R. A. 149 (tacitly 641; Sanderson v. Bigham, 40 S. C. overruling Single v. Volz, 142 111. 501. 214, 16 L. R. A. 321) ; Seebrock v. 674 LAW OF WILLS. In some cases the courts refuse to allow any part of the description by lot number or section to be varied or rejected, even though partial intestacy should result.®^ Where testator did not describe the land devised as belonging to him, and he did not own the quarter section devised, but owned another quarter section in the same section, it was held that such other quarter section could not pass under the devise.^''^ So a devise of a ''small farm in Wayne County, Iowa, near the Missouri line," was held not to pass a small farm in Lucas County un- disposed of by will, though testator owned no land in Wayne County.^^ §488. Description of realty by popular name. Since the courts endeavor to enforce the intention of testa- tor whenever the same can be ascertained by the will, it is not necessary that the estate devised by wall should be described with the accuracy necessary in the case of a deed. Devises are constantly upheld where the testator has devised real estate by its popular name without any attempt at formal descrip- Fedawa, 33 Neb. 413; Patch v. quarter of the southeast quarter of White, 117 U. S. 210. (An extreme such section, being the only land case where a devise of Lot 6, owned by testator.) Square 403, in a given town was held Stewart v. Stewart, 96 la. 620; to pass Lot 3, Square 406, being 65 N. W. 976. (A devise of the the only lot owned by testator in "south half of the northeast quar- that town otherwise undisposed of ter" of a section held to devise the by will.) Eckford v. Eckford, 91 south half of the southeast quarter To. 54 ; 26 L. R. A. 370 ; Merrick v. of that section, the latter property Merrick, 37 O. S. 126. not being devised, and testator not Huffman v. Young, 170 111. 290. owning the first tract.) Zirkle v. (A devise "off the east side of the Leonard, 61 Kan. 636; 60 Pac. north-east quarter" of a certain sec- 318; Moreland v. Brady, 8 Oreg. tion held to pass the same number 303. of acres off the north side of such 66 Bingle v. Volz, 142 111. 214; 16 section, testator owning the latter L. R. A. 331: (ignored in Whit- tract, and not the former. ) comb v. Rodman, 156 111. 116); Rook V. Wilson, 142 Ind. 24. (A Hull v. Hull, 9 Ohio Dec. 19. devise of the "southwest quarter of 67 McGovern v. McGovern, 75 the southeast quarter" of a given Minn. 314. section held to devise the northeast sa Christy v. Badger, 72 lo. 581. LAW OF WILLS. 575 tion.®^ And such general descriptions as "all the property I possess," or ''the residue of my estate," and the like are suffi- cient to pass real estate."^ So a devise of "mountain lands,"^^ or "upland,"'^^ is suffi- ciently definite. A devise of property by such popular name includes the entire tract Mdiich is generally known by that name, and not merely the smallest portion thereof to which the name might be applied, nor does it include a larger tract which might come under a general designation. Thus a devise of the '"old mill quarry" includes the entire tract known as the quarry property, although the quarry itself formed but a part thereof. '^^ A gift of a farm by its popular name passes only the tract known by such name, and not an additional tract used at times in connection with it, but not spoken of as a part of it.'^^ A devise of the residence occupied by the testator during his lifetime and "premises thereto as the same are now oc- cupied by me," does not entitle the beneficiary to the entire stable and coach house, but only to so much as actually was used by the testator.'^^ So a devise of the "homestead" in- cludes only the part of the tract of land used by testator for residence purposes, and not a building on another part of the same tract leased by testator for business purposes. '^^ A devise of the "home place where I now live," carries only the farm- «9ln re Seal (C. A.) (1894), 1 188 Pa. St. 234; Harris v. Dyer, 18 Ch. 316; Beers v. Narramore, 61 R. I. 540. Conn. 13; McAleer v. Schneider, 2 7i Horneby v. Davis (Tenn. Ch. App. D. C. 461; Myers v. Norman, App.) (1806), 36 S. W. 159. Ky. (1898), 46 S. W. 214; Hammel 72 Vandiver v. Vandiver, 115 Ala. V. Palmer, (1 Toledo Legal News, 328. 301) ; 12 Ohio C. C. 184. 73 Beers v. Narramoore, 61 Conn. 70 Le Breton v. Cook, 107 Cal. 13, citing and following Minor v. 410; Rockwell v. Swift, .i9 Conn. Ferris, 22 Conn. 371; Holbrook v. 289; Taubenham v. Dimz, 125 111. Bentley, 32 Conn. 502; Peckhara v. 524, affirming 20 App. 262; Mor- Lego, 57 Conn. 553. gan V. McNeeley, 126 Ind. 537; 74 Chaee v. Lamphere, 148 N, Y. Eckford v. Eckford, 91 lo. 54 ; Three 206. States Lumber Co. v. Rogers, 145 75 /n re Seal (C. A.) (1894), 1 Mo. 445; Shumate v. Bailey, 110 Ch. 316. Mo. 411; Darlington v. Darlington, 76 Smith v. Dennis, 163 111. 631. 160 Pa. St. 65; Stevenson v. Scott, 576 LAW OF WILLS house, surrounding enclosure and out-building used by testator in connection therewith, together with a wagon entrance.^ ^ It i^ not necessary that the land devised by its popular name should" be contiguous. Separate tracts used together and known by the name used by testator will pass under such devised* A devise of the "old homestead" prima facie passes the property used by testator as a .residence at the time of the execution of his will and thereafter till his death, although he owned another tract of land on which he formerly had livedJ^ A devise of an acre, to be taken oS the west side of a given tract in the shape of a square, was held void as it was possible to lay off any number of such tracts along the west line.^^ Burial Ground. This tract was to be reserved for use as a private burial ground, and was to include as part of itself the burial ground used during testator's lifetime. While the reservation of the whole acre was invalid, it was held good as to the tract already used as a burial ground.^^ But a de- vise for the improvement of a "burial lot," was held to au- thorize the executors to select the burial lot from the family burial ground.®^ §489. After-acquired realty. As has been stated at common law, a testator had no power to devise land acquired after the making of the will.^^ Stat- utes were subsequently passed in most jurisdictions giving a testator power to pass after-acquired realty. These statutes are not retrospective in their operation, and do not apply to Avills made before the passage of such statutes where the testa- tor died afterward.**^ In wills made after the passage of these statutes, the only 77McKeough's Estate v. McKe- 82 Joy v. Fesler, 67 N. H. 257; oiigh, 69 Vt. 34, 41 ; 37 Atl. 275. 29 Atl. 448. Ts Lord V. Simonson (N. J.), 42 §3 See Sec. 142. Dodge v. Galla- Atl. 741. tin. 130 N. Y. 117. 79 Moore v. Powell, 95 Va. 258. »* Morgan v. Huggins, 42 Fed. soBdens v. Miller, 147 Ind. 208. 869; 9 L. 11. A. 540. 81 Edens v. Miller, 147 Ind. ?^S. 577 LAW OF WILLS. question involved is one of construction. Has the testator xnan- ifested his intention to dispose of after-acquired real estate with sufficient clearness? The statutes on this subject are not identical, and may be roughly grouped under two heads. Statutes of the more liberal class substantially provide that after-acquired property will pass by such provisions of the will as would pass such property if owned at the time of the making of the will.«^ Under this rule a devise of all the estate I now own and possess" passes after-acquired prop- erty «« and a general gift of all of testator's property, or a re- siduary clause, will pass after-acquired property «^ Even under these statutes a gift clearly intended to apply only to realty owned at the date of the will does not pass after-acquired realty.- Thus a devise of "the residue of my real estate, being a lot of land adjoining" a described tract, does not pass after-acquired realty not answering this descrip- tion ^^ The other class of statutes is somewhat less liberal in its terms, and provides that testator may pass after-acquired property where such intention clearly appears m the wii.. Under such statutes a residuary clause does not pass after- acquired real estate.^*^ S5Hardenbergh v. Kay, 151 U. S. R. A. 767: Welborn v. To^vnsend. 112; McClaskey v. Barr, 54 Fed '^f^^^^'V Brewster, 86 Conr.. 781-; Woman's Missionary Society ss \\ heeler v. xivev.i,i , V Mead 131 111. 338; Flummer- 177. Lt V Fhunmerfelt, 51 N. J. Eq. -Wheeler v. Brewster, 68 Conn. 432; Jacob's Estate, 140 Pa. St. 17/. 268- 11 L. R. A. 767; Haley v. -Webb v. Archibold, 128 Mo^ f / ' -, rp^^. 9m 299; 28 S. W. 80 ; /n re Pearce, 20 ^tTl y V. Gatfood, 74 Tex. R. I. 380; Webster v. Wi..in, 19 sbnaiey v. R I 73; 28 L. R. A. 510; Church ''I; Euckle V. Grafflin, 86 Md. 627 ; v. Warren Mfg. Co., 14 R. I. 539 ; Webb V. Archibald, 128 Mo. 299; Lonllard s Petition, 16 I^- /• -54' Woman's Missionary Society v. Bedell v. Fradenburgh, 65 Mmn MeaT 1 1 111. 338 : Morgan v. Mc- 361 ; 68 N. W. 41. Nor^does a gift Neele'y 126 Ind. 537; Blackmore's of all of testator's "belongings, Su ceI;ion, 43 La. Ann. 845; Paine even though coupled with a sug- V Forsaith, 84 Me. 66; Flummer- gestion that devisee may give her felt V Flummerfelt, 51 N. J. Eq. sister a certain amount ^f f ^^^^^^^^ 4.32; Lamb V.Lamb, 131 N.Y. 227; to make a P^-^.^^^f^- ^• Jacob's Estate, 140 Pa. 268; 11 L. Schneider, 2 App. D. C. 461. 578 LAW OF WILLS. A gift of all testator's ''real estate" has been held sufficient to pass after-acquired realty/^^ A gift of the "real estate I may now have or hereafter may acquire" is sufficient to show testator's intention to pass after-acquired realty/^- And even where the will specifically describes the property devised, h may still appear from the will as a whole to be testator's inten- tion to dispose of all his property.^^ Testator's intention to pass after-acquired realty must, of course, appear on the will, and can not be shown by extrin- sic evidence.^'* §490. Gift of realty at fixed valuation. A gift of real estate to one ''to be valued at" a certain sum, is an ambiguous disposition of property. Where testator di- rects this valuation to be made in the settlement of his estate, and there are other words showing an intention that the prop- erty shall pass by will, it is held that the direction for val- uation merely shows how to estimate the value in determining the shares of the estate that each beneficiary receives.^^ But where there is no other language tending to show the intention of testator to devise the property, it is held that such a gift gives to the parties named merely an option to purchase the land at such price from the residuary devisee.^ "^ §491. Gifts of rents. Eents, both in the technical common law sense and in the siPruden v. Pruden, U 0. S. 92 Hale v. Aiidsley, 122 Mo. 316 ; 251. But a gift of "all my prop- Applegate v. Smith, 31 Mo. 166; erty" was held insufficient to pass Liggatt v. Hart, 23 Mo. 127. after acquired realty; McCall v. ■ 93 Parrar v. Fallestine, 4 Ohio C. Jones, 4 W. L. M. 627. A gift of C. 235. "all my other property consisting s* Banning v. Banning, 12 0. S. of horses, cattle, hogs, money ; iid 437. effects whatsoever" was held not 95 Fleming v. Carr, 47 N. J. Eq. to pass after acquired realty ; but 549. solely on the ground that such realty 96 Wyckoff v. Wyckoff, 49 N. J. being of a different class from the Eq. 344; 48 N. J. Eq. 113. property enumerated was excluded by such enumeration. Smith v. Hut- chinson, 61 Mo. 83. LAW OF WILLS. *"*' popular modern sense, form a very important item in many estates.^ ^ A devise of rents which are due and payable in the future may be held to pass with it the reversionary interest in the property, especially where the purpose of the gift as given could not be carried out from the accruing rents alone.^^ "^ A bequest to testator's wife- of a sum equal to the rental value of her land which had been used by testator in his life- time, means the rental value for the entire time testator used it, both before and after the time of making the will. It nieans the gross rental value without deducting taxes or im- provements.^^ And a gift of rents and profits includes real estate which was purchased with the proceeds of these rents.^^^ An absolute gift of the income of realty, in the absence of anything to indicate a contrary intention, passes the realty.^ °^ Biit a gift of the "profits and benefits" of certain real estate, followed by a provision for the sale of such real estate at a fixed time,' shows that testator did not mean to pass the fee.-^^- So a gift of the income of personalty without any limitation passes the personalty.^ ^^ It is held in some jurisdictions, further, that a gift of the income for life, or an absolute direction to the trustee to pav the income for life, gives a life interest of a legal or equit- able nature, as the case may be, in the property from which the income is to arise.^^^ A devise of realty does not carry the rent of such realty from the last rent day to testator's death, even though under the lease it was not payable till after testator's death.^^^ 97 Ogle V. RejTiolds, 75 Md. 145; 102 Collier v. Grimesey, 36 0. S. Gao-e V. Wood, 171 Mass. 465; 17, Brady v. Brady, 78 Md. 461. i"3 Angell v. Springfield Home for 98 Ogle V. Reynolds, 75 Md. 145; Aged Women, 157 Mass. 241: Alexander v. Paxson, 47 Pa. St. 12. Thomae v. Thomae ( N. J. Ch.), 18 99 Bush V. Couchman, — Ky.— Atl. 355; Hatch v. Bassett, 52 X. (1892); 17 S. W. 1020. Y. 359; Collier v. Collier, 3 0. S. 100 Roe V. Vingut, 117 N. Y. 204. 369; Pendleton v. Bowler, 27 Bull. 101 Baker v. Scott, 62 111. 86; 313. Bowen v. Swander, 121 Ind. 164; io4 Sampson v. Randall, 72 Me. Hunt V. Williams. 126 Ind. 493. 600; 109; Brombacher v. Berking, 50 N. Earle v. Rowe, 35 Me. 414 ; Cassilly J. Eq. 251 ; Monarque v. Monarque, V. Meyer, 4 Md. 1 ; France's Estate, 80 N. Y. 320. 75 Pa St. 220. ' ^°'''' Anderson v. Richards, 99 Ky. 661. 580 LAW OF WILLS. §492. Bequests of personalty — Furniture. In passing from words descriptive of realty to those describ- ing personalty, the word "furniture" will first be considered. A bequest of "furniture" was originally held to include all property used in connection with a house to make it habitable and reasonably convenient for living purposes.^ ^^ The popu- lar meaning of the word "furniture" has undoubtedly changed since the early precedents were decided. "Eurniture" then meant anything used to furnish a house. A house and its fur- niture was equvalent to a furnished house. This meaning of the word was fixed by early precedents, and is still retained by many courts. Thus, under a gift of "furniture," it has been held that china,^^''' pictures and statuary,^ °* gold and silver plate,^^^ ornaments,^ ^^ and linen for ' household use, are all included.^ ^^ But it does not include money,^^^ or securi- ties.113 The popular meaning of the word today is narrower than the original meaning, though its limits are not easy to define. "Furniture," in popular use, includes such articles as chairs, tables, desks, and the like, and excludes silverware, glass, plate, books, pictures and other similar articles. Some courts have gone a considerable way towards adopting the mod- em meaning of the word. Thus a bequest of furniture was held to include carpets and cook stove, together with utensils used in connection with such stove, but it did not include silver ware, china, glass ware, or portraits.^ ^^ The context may, how- ever, show that such articles were included under the heading of furniture. Thus a gift of all the furniture in the house, ex- cepting family portraits and silver ware, shows that the 106 Cole V. Fitzgerald, 3 Russ. 301 ; "o Field v. Peckett, 29 Beav. 573. Manton v. Taboia, 54 L. J. Ch. m Endicott v. Endicott, 41 N. J. 1008. Eq. 93. 107 Field V. Peckett, 29 Beav. 112 Kelly v. Richardson, 100 Ala. 573: Endicott v. Endicott, 41 N. J. 584: In re Reynolds, 124 N. Y. 388; Eq. 93. Smith v. Jewett, 40 N. H. 513. 108 Cremorne v. Antrobus, 5 Russ. ii3 Andrews v. Schoppe, 84 Me. 312; 7 L. J. Ch. 88; Richardson v. 170; Blackmer v. Blackmer, 63 Vt. Hall, 124 Mass. 228. 236. 109 Stuart V. Bute, 11 Ves. Jr. n* Ruffin v. Ruffin, 112 N. C. 102 657 ; Nieholls v. Osborn, 2 P. Wms. 421. 681 LAW OF WILLS. testator had included them under the general heading of fui- ^ture because of his exception thereof; and hence china and Mated ware will pass under such a gift.'- Articles of per- on : use, such as I gold watch and chain, do -<>' P--^;- gift of "household furniture, silver ware, musical instrument Lks and pictures" ; since the word "furniture" does not pnma Zl iiicl ide a watch, and the words associated herewith show that only articles of household use are intended th the' hooks pass as "furniture" under the oWer meaning o the word has always been a matter of some doubt. Perhapo Z leight of authority is that "furniture ' does not pn^ facie include books,- but that slight i-lications f«>in ^h context that testator intended books to pass as "^/^ be sufficient to give that effect to the word. Under the ^ewer meaning of the word, books are clearly excluded. §493. Household goods. "Household Goods" is a term of substantially the same meaning as "furniture," though of somewhat wider scope.^^^ Thus coal and a shot gun may pass as "househo d goods. Jewelry and clothing do not, on the other hand, pass under of gift of "household goods and effects."'*' §494. Personal property described by its location. A very interesting question is presented by gifts of all the - furniture and personal property in a house when testator has stored his money, notes, securities and other choses in action therein. A gift of "all that therein exists" is, of oourse.^broad enough to pass money contained in a safe m the house. - But .» Chase T. Stockett, 72 Md. 235. S. 514 : Carnagy v. Woodcock 2 ...rorter V. Tourney, 3 Ve. Jr. Munf. ,Va.,, ^^^'-^^ ^^^^^^^ '"> ' 311 . Le Farrant v. Spencer, 1 Ve,. /» re Fra«r, 92 N^ Y^ 239^ 120 In re Frazer, 92 M. i- ^-i-f- ^'n, Ondey v. Anstruthev, 10 Beav. - Kimball's Will, 20 E. I. (Part 3) 619 '"ns Kuffln v. Ruffin, 112 N. Car. -= Garcia y Perea v. Barela, 5 N. 107. 119 Pellew V. Horsford, 2 Jur. N. M. 458; 23 Pac. 766. 582 LAW OF WILLS. a gift of ^'everything the house contains" was held to be so restrained by the preceding words "household eltects, books, and papers of value" as to exclude a note.^^^ The difficulty is generally presented in determining whether the words allied with and used in connection with the general words do not so restrict their meaning as to exclude money. Thus it was held in a gift of ''all the furniture and personal property in and upon the same (building), or in any manner connected there- with," did not include money and securities situated in a vault in this building.^ ^^ So a gift of household goods, furniture, possessions and other goods and chattels for life, did not pass a life interest in certain promissory notes,^^^ even though these notes were contained in the house.^^^ And a gift of a desk and its con- tents was held to pass everything situated therein, including negotiable notes, but not to pass the contents of a box which contained some securities, where this box was not situated in the desk, although the key which opened it was found there,^-'^ nor real estate, the deed to which was in the desk.^-^ A bequest of household goods, furniture, etc., upon the testa- tor's home place, includes all the articles corresponding to that description upon the home place, whether situated in the dwelling house or in other buildings used in connection there- with ;^^^ but a gift of the contents of the "barns" to testator's wife does not pass cotton stored in a buggy-house.^ ^^ Where a farm is devised with all the "personal property" on such farm at testator's death, it is held that growing crops pass by such a bequest.-' ^^ 123 Webster v. Wier, .51 Conn. 569. 12s Parrot v. Avery, 159 Mass. 124 In re Reynolds, 124 N. Y. 388 ; 594 ; 22 L. R. A. 153. to the same etfect is Kelly v. Rich- 129 Blaekraer v. Blackmer, 63 Vt. ardson, 100 Ala. 584. 236. 125 Andrews v. Schoppe, 84 Me. i3o Johnson v. Johnson, 48 S. Car. 170. 408; 26 S. E. 722. 126 Blackmer v. Blackmer, 63 Vt. i3i Dunford v. Jackson, — Va. 236. (1896), 22 S. E. 853. . 127 /,i re Robson- (1891), 2 Ch. 559. LAW OF WILLS. 583 A bequest of crops "growing or maturing" upon certain tracts of land does not pass corn stored in cribs upon such land.i=^- §495. Personalty described by its use. Under a bequest of "all my household furniture . . . and other articles of household or domestic use or ornament," it was held that certain orchids, which were used occasionally for ornamenting the house passed, although they ordinarily were not kept in the house or upon the premises; but other orchids kept in the sam^ place, which were never used to or- nament the house did not pass.^^^ A bequest of articles of "personal use and ornament" in- cludes only articles coming under such description, and does not extend to all personal property; hence, it does not in- clude a sailing yacht.^" 134 §496. Money. A bequest of "money" will prima facie pass such money as was in testator's possession at the time of his death, or is in deposit in bank subject to check.^^^ But it does not include money deposited in a savings bank not subject to check, an'l which can be drawn out only at certain times in compliance with the rules of the bank;^^*' nor does it include personal chattels generally ;^^'^ nor does it include land which testator has ineffectually attempted to dispose of by oral contract, es- pecially where there is money on hand ;^^^ nor does it include a balance not drawn out of a partnership of which the de- ceased husband of testatrix was a member ;^^^ nor securities and obligations of others o\\aied by testator.^ ^*^ 132 Edwards v. Rainier, 17 O. S. 216; 29 Atl. 638: Beatty v. Lalor, 597. 15 N. J. Eq. 108. 133 In re Owen, 78 Law T. Rep. i37 Levy's Estate, 161 Pa. St. 189. 643. 138 Sweet v. Burnett, 136 N. Y. 134 Parry's Estate, 188 Pa. St. 33. 204. 135 Manning v. Pureell, 7 De Gex i39 Levy's Estate, 161 Pa. St. 189. M. & G. 55; Dowson v. Gaskoin, 2 i4o Beales v. Crisford, 13 Sim. Keen 14. 592; Smith v. Burch, 92 N. Y. 228. 130 Hancock v. Lyons, 67 ,N. H. 684 LAW OF Wil.l.S. However, where the context shows that the word "money" was meant to apply to other property, such as securities,^ '*^ or reversionary interests in personalty,^ '^^ it may include such property. Thus a gift of money on deposit in a designated bank may pass stock in such bank where testator owned stock to the value designated in the will but had no money on deposit there.^"*^ A gift of "money" may even, from the context, include in- terest in realty. ^"^"^ §497. Stocks and bonds. Bequests of stocks and bonds are especially likely to be couched in informal language, and the nature of the subject of the gift must be especially regarded in determining the meaning of the will. A bequest of a specified number of bonds, or all of testator's stock, will include bonds or stock owned in fact by testator though not transferred to testator's name upon the books of the corporation.^ ^^ Where the amount of stock is indicated in dollars, it passes a proportionate amount of the given stock at par, irrespective of the market value of the stock when the bequest takes effect.^'*'' The context may, however, modify this rule. Thus, where the will evidently contemplated an equal division of testator's property, a gift of a certain amount of money to testator's son, providing that if he pleases he may take his legacy in cer- tain bank stock at "par or market value," was held to be a gift of the stock at the market value only, since the equality of distribution would be entirely destroyed if it were esti- mated at par.^^"^ "iMosse V. Cranfield (1895), 1 143 Mosse v. Cranfield (1895), 1 Ir. 80 ; Gillen v. Kimball, 34 O. S. Ir. 80. 352; Hinckley v. Primm, 41 111. i** Miller's Estate, 48 Cal. 165. App. 759 ; Fulkerson v. Chitty, 4 145 Angell v. Springfield Home for Jones Eq. 244; Dillard v. Dillard Aged Women, 157 Mass. 241; Cum- (Va.) (1899), 34 S. E. 60. ming's Estate, 153 Pa. St. 397. 142 7n re Egan (1899), 1 Ch. 688; "6 Johnston's Estate, 170 Pa. St. 08 Law Journal Ch. N. S. 307 ; Prit- 177. chard v. Pritchard, L. E,. 11 Eq. 1*7 Tandy v. Cook, — Ky. — ; 42 Cas. 232. S. W. 741. 585 LAW OF WILLb. Where the testator devises the stock by mdicaUng the num ber of shares, such bequest is usually taken htera ly Bvrt u. I recent case it was shown that a testator owned stock m a lambarge company, to which company he had sold the barge and that te had always estimated this stock as cons.stxng ot oLtwentieth of the actual number of shares owned, and - timated each share as being worth twenty times what it ac- t™ily was. These facts were admitted to show the meaning of Iblest of a specified number of shares i. testator's clul- dren especially L view of the fact that a literal construction of the Jill would leave testator's children without any prop r provision; and the bulk of testator's property, consisting of the remaining nine,een-t.ventieths of his stock, would pass under a residuary clause. , Where a bequest is made of specified stock owned by tlie testator, and subsequent to the making of the .v^ll, such s^ock is exchanged for other stock in the same corporation, it is he d in some jurisdictions, that under these facts the converted stock will pass by the bequest. This is specially provided m England by statute.^^^ A bequest of ''shares" in a corporation does not, howeve pass debenture stock -« And where testatrix bequeathed all ihe consols standing in her name and belonging to her at the time of her death, it was held that this did not pass consols which were purchased under order of the court ^as an invest- ment of her property after she became msane. In view of the maxim noscitur a sociis, a bequest of notes, bonds, stock and money does not include live stock, such as horses and mules.^^^ Where, from the entire will, testator's intention to pass a specified block of stock is clear, the gift is not i^f ^;l-^^^ l'. _; 41 Atl. 576. 598 I^W OF WILLS. CHAPTER XXII. DESCRIPTION OF BENEFICIARIES. §511. Husband and wife. The term "husband" and "wife" have for their primary meaning, undoubtedly, only those who are actually and law- fully in the designated relation. The context and the sur- roim.ding circumstances may extend the meaning of the term to one who was in the ostensible relation of husband or wife, although not legally so related. Thus, where testator had de- serted his first wife, and had subsequently gone through the form of marriage with another woman, with whom he was living at the time of his death, and in his will he referred to her daughter by a former husband as his "stepdaughter" and to his ehildren by his lawful wife as "my only children by my first wife," it was held that a devise to testat-or's "wife" meant the woman with whom he was living at the time of his dcath.-^ Where the will refers by name to a woman with whom testator is living unlawfully as his "wife," the fact that she is not testator's lawful wife does not affect her rights as created by the will. Thus, a devise to such a person with an additional direction that "she shall be entitled besides the above bequest, to all under the law in such case made and iPastene v. Bonini, IGG Mass. 85. LAW OF WILLS. 599 provided as my widow" gives her in addition to such bequest the same interest that she would have been entitled to if she had been his lawful wife.^ A devise to the wife of a designated person often raises some question, where the wife who was living at the date of the execution of the will dies, and the person designated mar- ries a second time. Where the first wife dies and the person designated remarries in the lifetime of testator, it is held that such second wife is entitled to a bequest in trust for the maintenance of such person "his wife and children." It was said in this case that the usual presumption would be that such a devise was for the benefit of wife living at the time of the execution of the will, but that the context rebutted this presumption by showing an intent to provide for the family of the person designated as it existed at testator's death.^ So a gift in support of A's "family" was held to include A's wife B, though A was not then married to B."* But where the wife dies after the testator, and the person designated remarries, or where such person had never mar- ried before testator's death and marries afterward, it is usually held that such a devise, if construed as including the wife married after testator's death, would constitute a perpetuity. Accordingly, in such cases, the word "wife" is held not to include such wife married after testator's death.^ §512. Heirs. — Primary meaning. Heirs is a term whose primary meaning, in law, has long been recognized and defined. "An heir is he upon whom the 2 Dicke V. Wagner, 95 Wis. 260 ; tator's nephew and his wife and the 70 N. W. 159. survivor for their natural lives, 3/n. re Drew (1899), 1 Ch. 336, or the widowhood of the wife. 68 L. J. Ch. N. S. 157. Such a gift is held to be a per- 4 Smith V. Greely, 67 N. H. 377. petuity for the reason that a wife 5 Beers v. Narramore, 61 Conn. of tRe beneficiary by a marriage 13; Dean v. Mumford, 102 Mich. after testator's death might be a 510; Van Syckel v. Van Syckel person not in being at the testator's 51 N. J. Eq. 194; 26 Atl. 156. death, whose parents were not then But in Wilmot v. De Mill, 32 N. in being. This is a possible though B. 8, it was held that such wife not a usual combination. For the could take under a devise to tes- rule against Perpetuities see Sec. 625. 600 LAW OF WILLS. law casts the estate immediately npou the death of the an- cestor." " This definition must of course be understood as applying primarily to real estate, and to denote those who would be entitled to inherit the real estate of the deceased an- cestor by descent if he died intestate.^ This primary mean- ing of '"heirs" is the meaning which should be given to it when employed in a will in the absence of anything in the will or in the surrounding circumstances to suggest a different meaning.^ This rule applies even where the heirs are non- resident aliens, and can only take under limited conditions.® §513. Husband or wife as ''heir." Where the statutes of descent and distribution limit the amount which the widow may take as heir, a provision in a will which divided a sum among the ''heirs at law" of a deceased child of testator's enures to the benefit of the sur- viving widow of such child, but only to the amount which she could take from the estate of her husband as "heir" had he 6 2 Black. Com. 201; Rawson v. Rawson, 52 111. 62 ; Kellett v. Shep- ard, 139 111. 433; Fabens v. Fabens, 141 Mass. 395 ; Lincoln v. Perry, 149 Mass. 368 ; Johnson v. Brasing- ton, 156 N. Y. 181 ; Ashton's Rstate, 134 Pa. St. 390. 7 Ruggles V. Randall, 70 Conn. 44 ; Philadelphia Trust, etc., Co. v. Isaac, 167 Pa. St. 270. 8/?i re Ferguson, 28 Can. S. C. 38; Allen v. Craft, 109 Ind. 476; Irvine v. Newlin, 63 Miss. 192; Woodward v. James, 115 N. Y. 346; Lawton v. Corlies, 127 N. Y'. 100, affirming 12 N. Y". S. 484 ; Bodine v. Brown, 154 N. Y''. 778; Johnson v. Brasington, 156 N. Y. 181; Ashton's Estate, 134 Pa. St. 390; Harman's Appeal. 135 Pa. St. 441; Wallace V. Minor, 86 Va. 550; 10 S. E. 423. "Although in the case at bar the heirs of (the life tenant) do not take from her by inheritance, but take as persons designated by the will, yet we know no way of de- termining the person intended by the will except by ascertaining the persons who by law would have in- herited the estate from her if she had died seized of it and intestate." Lavery v. Egan, 143 Mass. 389. 3 Furenes v. Severtson, 102 lo. 322. In this case, testator devised his real estate to his wife for life, and on her death one-half to her heirs and one-half to his. He had no children and no relatives except some non-resident aliens who were prohibited from acquiring land in Iowa by descent. Where the land was acquired by purchase, they can hold it for only ten years. It was held that the word "heirs" meant those who would have inherited but for the restrictions imposed by reason of alienage ; hence the aliens took under the will." Furenes v. Severtson, 102 lo. 322; 71 N. W. 196. LAW OF WILLS. 601 died intestate - So a husband may take as heir Thus, imder modern statutes it is provided that in case husband or wife dies intestate, and leaving no children or their repre- sentatives, the property of the decedent shall pass to the sur- viving spouse. Under these statutes such surviving spouse may 'Vith strict regard to the significance of the term, be desLated as (an) heir," and the term heir as used m a will mav" in the absence of anything to show a contrary intent, be treated as including such surviving spouse.^ §514. Heirs. — Extended meaning. But the word ''heirs" may be modified by the context of the rest of the will or surrounding facts and circumstances so as to have a very different meaning from this technical meaning. As has been said, there is no inflexible rule for de- termining the meaning of the words -'heirs at law. 10 Olney v. Lovering, 167 Mass. 446 (in this case $5000); Weston V. Weston, 38 O. S. 473. iiNeeley's Estate, 15.5 Pa. St. 133; Olney v. Lovering, 167 Mass. 46 (in this case $5000). Contra, that wife does not take in devise to heirs and next of kin. Morris v. Bolles, 65 Conn. 45; Dodge's Appeal. 106 Pa. St. 216; Richardson v. Martin, 55 N. H. 45 ; Piatt v. Mickle, 137 N. Y. 106; nor does the husband; Mason v. Baily, 6 Del. Ch. 129; Wilkins v. Ordway, 59 N. H. 378 ; Irvin's Ap- peal, 106 Pa. St. 176 i2Durbin V. Redman, 140 Ind. 694; Lawrence v. Crane, 158 Mass. 392; Holmes v. Hancock, 158 Mass. 398; Durfee v. MacNeil, 58 0. S. 238; Neeley's Estate, 155 Pa. St. 133. The context may show that a different meaning was intended. Thus, where the wife of testator would have been a statutory heir, a devise to the wife in lieu of dower, but if she should claim dower then to the "heirs" of testator was held to be a devise to testator's brothers and sisters, there being no children. Jones V. Lloyd, 33 0. S. 572; so Stewart v. Powers, 9 Ohio C. C. 143. 13 Swenson's Estate, 55 Minn. 300 ; Townscnd v. Townsend, 25 0. S. 477. "It is well known that persons un- skilled in the law, use the word "heirs" as descriptive of a class of persons who can not, in fact, take as heirs. In recognition of this doctrine, the words "heirs at law" have been construed to mean adopted children; next of kin,. heirs of a particular class or description, heirs presumptive, heirs apparent, heirs at the date of the will, heirs at the decease of the testator, or heirs at even a later date, the con- struction resting in each particu- lar case upon an ascertainment of the testator's intention from the words used, from the context of the instrument and from the surround- ing circumstances." Furenes v. Severtson, 102 la. 322. 602 LAW OF WILLS. "The word 'heirs' is a flexible one, and when used ir. the will should be so construed as to give effect to the manifest intention of the testator/' and the sense in which it is used is '"alwajs open to inquiry." ^^ The word "heir" or "legal heir" of a person who is liv- ing may mean the "heir apparent," or the j^erson who would be entitled to inherit from the person named if he were dead.^^ So where testator's intent is clear, "heirs" may be held to mean those who would be regarded as testator's heirs if tho parents of such persons were dead.^^ This primary meaning may either be extended by the couv text or surrounding circumstances so as to include meanings outside of its primary signification, or it may be so restricted by context or surrounding circumstances as to exclude classes of persons who otherwise would be included under the primary meaning. To consider first, cases where the meaning is extended. §515. Meaning" of "heirs" in bequests of personalty. When in the will the word "heirs" is used as indicating the beneficidiy of a bequest of personalty, the prima facie pre- sumption is that it means the next of kin under the Statute of Distribution of Personal Property.-^ '^ 1* Jones V. Lloyd, 33 O. S. 572. 9 L. R. A. 509 ; Swasey v. Jaqvies, 15 Barber v. R. R., 166 U. S. 83; 144 Mass. 135; Harraden v. Lar- Healey v. Healey, 70 Conn. 467; rabee, 113 Mass. 430; Houghton v. Strain \. Sweeney, 163 111. 603; Kendall, 7 All. 72; Swenson's Es- ( construction adopted in order to tate, 55 Minn. 300 ; Reen v. Wagner, keep the title to realty from being in 51 N. J. Eq. 1; 26 Atl. 467; Mon- abeyance) ; Barton v. Tuttle, 62 K tignani v. Blade, 145 N. Y. Ill; H. 518; or "next of kin," Montig- Corbitt v. Corbitt, 1 Jones Eq. 114; nani v. Blade, 145 N. Y. Ill: Cush- Nelson v. Blue, 63 N. Car. 659"; man v. Horton, 59 X. Y. 149. Cosbn^ v. Lee, 3 Gaz. 173 (Ohio) ; leMcKelvey v. McKelvey, 43 O. 2 Dis. 460; Ashton's Estate, 134 S. 213. Pa. St. 390; Comly's Estate, 136 "Thompson's Trusts, 9 Ch. D. Pa. St. 153; Croom v. Herring, 4 607 ; Keay v. Boultonj 25 Ch. D. Hawks, 393 ; see on the same point, 212; Eddings v. Long, 10 Ala. 203; Fabens v. Fabens, 141 Mass. 395; Lord V. Bourne, 63 Me. 368, overrul- Merrill v. Preston, 135 Mass. 451 ; ing Mace v. Cushman, 45 Me. 250; Minot v. Harris, 132 Mass. 528; Kendall v. Gleason, 152 Mass. 457; Sweet v. Button, 109 Mass. 589. LAW OF WILLS. "^^ "The word 'heirs,' when used to denote succession in a gift of personalty is always a misnomer, because 'heirs' is a word of limitation, and there can be no limitation, in strict- ness, of a chattel interest. Its popular meaning comprehends those who succeed to the property of an ancestor, and hence includes next of kin and those who take under the statutes of distribution as well as heirs at law." The courts are forced to accept this definition where a gift of personalty is to one and his heirs, or to one for life and then to his heirs.^^ And "where certain personalty of a testator who was child- less and whose wife was past the age of childbearing ^vas bequeathed to his 'heirs at law,' and upon the death of his widow his realty was devised to his 'heirs at law,' it was held that this term had the same meaning in both provisions, and that was 'next of kin.' " ^^ On the other hand,^ when a testator made a devise of realty with remainder to his "heirs at law," and also provided for a division of personalty among his "heirs at law," it was held that the phrase had the same meaning in both places, and that meaning was those who would take land by descent if testator had died intestate.^^' And where the will provides for a conversion of realty into personalty, and bequeaths the proceeds arising by such con- version to the "legal heirs," this expression means those who would take personalty under the Statute of Distributions gov- eming.2i -q^^^ this is only a prima facie rule of presumption as to the meaning of the term. The rest of the will may show that the word "heirs" was used of a beneficiary of a. bequest of personalty in its technical legal sense in the pri- mary meaning of the term- The provisions disposing of per- sonaltv mav ^show an intent not to use "heirs" as meaning "next of kin." Thus a bequest to the "heirs" of a niece of testa- is McCrea's Estate. 180 Pa. St. 241; Patterson v. Hawthon, 12 S. 81, citing (where the gift is to A & R., 112; McGill's App. 61 Pa. St. for life and then to his heirs) 46. Comly's Estate, 136 Pa. St. 1.53; i9 Swenson's Estate, 55 Minn. 300. Neeley's Estate, 155 Pa. St. 133; 20 Forrest v. Porch, 100 Tenn. 391. Ashton's Estate, 134 Pa. gt. 390; (where the gift is to "A and his 21 Kendall v. Gleason, 152 Mass. heirs") Eby's Appeal, 84 Pa. St. 457: 9 L. R. A. 509. 604 LAW OF WILLS, tor's was held to be the ''heirs" in the technical sense where such niece was domiciled in another state, the laws of. which could control as to who was the next of kin, and where such a bequest was connected with another bequest to the "heirs" of another niece in the same state.^- In some jurisdictions "heirs" is held, even in bequests of personalty, to mean those upon whom the law would cast the descent of realty.^^ Where the word "heir" is used, not with reference to a beneficiary under the will but to a testator, it is held in some courts that even in gifts of personalty it means the common law heirs.^* §516. "Heirs" including legatees. The word "heir" may be extended to include "legatee." Thus a bequest was made to "heirs resident in the state." There were no heirs or next of kin of testatrix resident in the state, but there were legatees under the will resident in the state, and the term "heirs" was construed to include all the legatees resident in the state who were natural persons, but excluding cor])orations.^^ §517. "Heirs" — restricted meanings — "children." The word "heir" may be so restricted by the context as to have a meaning more limited than its technical one. Of these restricted meanings "children" is perhaps the one most fre- 22 Ruggles V. Randall, 70 Conn. Pa. St. 383. "His 'right heirs' were 44. his heirs at common law, and he 23 Mason v. Baily, 6 Del. Ch. 129; used the words properly as words Gordon v. Small, 53 Md. 550. of purchase." McCrea's Estate, 180 24Mounsey v. Blamire, 4 Russ. Pa. St. 81. 384; Hamilton v. Mills, 29 Beav. 25 Graham v. De Yampert, 106 193; De Beauvoir v. De Beauvoir, 3 Ala. 279; 17 So. 355; McKelvey v. H. L. 524; In re Rootes, 1 Dr. & McKelvey, 43 O. S. 213; Corbley v. Sm. 228; Southgate v. Clinch, 27 Patterson, 3 Ohio N. P.. 315; Col- L. J. Ch. 651 ; McCrea's Estate, 180 Her v. Collier, 3 O. S. 369. Pa. St. 81; Stewart' Estate, 147 LAW OF WILLS. 605 quently thus suggested. ^*^ Tkus a devise is not infrequently given to one of two or more brothers and sisters, with a pro- vision that if such devisee should die without heirs capable of inheriting, the share of such decedent shall pass to the survivor or survivors. In such case, since the surviving brothers and sisters are heirs in the technical sense of the word, and under the provisions of the will one can not die without technical "heirs" while his brothers and sisters sur- vive him, the word must have a restricted meaning, which must be that of "children." ^'^ So a devise to "the heirs of S. D. that she now has, and to the heirs of A. M., should they arrive to the age of twenty- one, and in case they should not I give and devise" to others, the word heirs was held to mean children.^® §518. "Heirs of the body." The word "heirs" may be so used as to show an intention to restrict its meaning to "heirs of the body," or lineal de- scendants or issue living at his decease.^^ So where "lawful 26 xAnthony v. Anthony, 55 Conn. tate of Mrs. MacNeil should upon 256; McCartney v. Osburn, 118 her death without heirs, pass to 111. 403; Kellett v. Shephard, 139 her brother by way of executory 111. 433; Fishback v. Joesting, 183 devise in the ease that the term 111. 463; Allen v. Craft, 109 Ind. was not \ised in that sense. The 476; Barton v. Tuttle, 62 N. H. testator could not have contempla- 558 ; Eldridf^e v. Eldridge, 41 N. J. ted the death of one of his children Eq. 89; Bunnell v. Evans, 26 0. S. without heirs while the other sur- 409; Hoag^land v. Marsh. 4 Ohio C. vived. We think the testator used C. 31 ; Evan's Estate, 155 Pa. St. the term as meaning children." Dur- 646; Hayne v. Irvine, 25 S. C. 289; fee v. Mac Neil, 58 0. S. 238. Franklin v. Franklin, 91 Tenn. 119. 28 Barton v. Tuttle, 62 N. H. 558. 2T Young V. Harkleroad, 166 111. 29 Rollins v. Keel, 115 N. Car. 68. 318; Francks v. Whitaker, 116 N. (A devise to A, and if he died Car. 518 ; Durfee v. Mac Neil, 58 "without lawful heir" to his widow 0. S. 238 ; Jones v. Lloyd, 33 O. for life, with remainder over. The S. 572 ; Boyd v. Robinson, 93 Tenn. widow was heir by statute, but as 1 ; Franklin v. Franklin, 91 Tenn. the context showed that "lawful 119. heir" meant "issue," she did not In construing one of these wills take the fee.) So Snider v. Snider, the court said: "Since a brother 160 N. Y. 151; Canfield v. Fallon, is an heir in the general sense of 161 N. Y. 623; 162 N. Y. 605; 55 N. the term, the provision that the es- E. 1093. 606 LAW OF WILLS. begotten heirs'' is used, it means "heirs of the body." ^^ Thus a devise over if a son should die "without heirs of his own" has been held to mean heirs of the bodj.^^ §519. "Heir" meaning grandchildren. The word "heir" may, bj force of the context, exclude chil- dren and include only grandchildren. Thus, where testator devised one-half of his real estate to a named son and the other half to be divided among testator's "legal heirs," it was held that the term "legal heirs" could only apply to testator's grandchildren and that the named son must be excluded.^^ §520. "Heir" including illegitimate children. The primary meaning of the word "heir" is, under com- mon law definitions, restricted to legitimate descendants of the stock of the ancestor who trace each step of descent through legitimacy. Under our modern statutes it is provided in many states that a child born illegitimate may be subsequently made legitimate. In some states this is to be effected simply by open recognition on the part of the father of the child as his. In other jurisdictions an illegitimate child can be made legitimate only by the subsequent intermarriage of his parents and their recog- nition of the child as their own ; and it is also provided in many jurisdictions that an illegitimate child may inherit from its mother. The question under construction presented by these statutes is as to the effect of a devise to the "heirs" of a specified person when such person had an illegitimate child who would inherit from him under the statutes already referred to. The weight of authority is that a devise to "heirs" includes such illegitimate descendants as would inherit from the designated ancestor under the statutes of descent and distribution.^^ 30 Good V. Good, 7 El. & Bl. 295; citing Jones v. Miller, 13 Ind. 337; Holt V. Pickett, 111 Ala. 362; Clarke Ridgeway v. Lanphear, 99 Ind. 251 ; V. Smith, 49 Md. 106. Underwood v. Robbins, 117 Ind. 31 Abbott V. Essex Co., 18 How. 308. (U. S.) 202. 33 Johnson v. Bodine, 108 lo. 594: 32 Griffin v. Ulen, 139 Ind. 505, Ives v. McNicoll, 59 0. S. 402. LAW OF WILLS. 607 A devise to the "heirs by blood" of testator's niece includes her illegitimate son where, ulider the statute of descent, he would take as heir of his mother if she died intestate.^* Since status is fixed hj domicile, a natural child, who io legitimated by marriage of parents domiciled in Cuba under the laws thereof, can take under a devise to "heirs." ^^ Thus where testator devised property to his son A for life, remainder to the "heirs of his body," it was held that the term "heirs of his body" included a child born illegitimate, the offspring of adulterous intercourse with a married woman, whose parents had intermarried after the divorce of its mother from her first husband, and whose father had recognized it a^^ his child.^^ §521. Next of kin. "The words 'next of kin' do not of themselves impart "suc- cession ab intestato,' and, taken alone, mean nothing more than nearest blood relations ; and unless there is something more in the will indicating that the testator intended statutory next of kin, or that the property should be distributed as in- testate property, the words must have their customary mean- ing." 37 The words "next of kin" in a will mean the nearest blood relations, and not all those who would take under the Statute of Distributions.^^ Thus "next of kin" means a brother in preference to nephews, sons of a deceased brother f^ and nieces in preference to grandnieces.'*^ 34llayden v. Barrett, 172 Mass. 690; 150 Mass. 225; Swasey v. 472. Jaques, 144 Mass. 135; Redmond v. 35 De Wolfe v. Middleton, 18 R. Burroughs, 63 N. Car. 242 ; Daven- I. 810. port V. Hassel, Busb. Eq. (N. Car.), 36 Ives V. McNicoll, 59 0. S. 402. 29 ; Wright v. M. E. Church, Hoff. 37 Swasey v. Jaques, 144 Mass. Ch. (N. Y.),202. 135. 39 Swaaiey v. Jaques, 144 Mass. 38 Withy V. Mangles, 10 CI. & F. 135. 215; Harris v. Newton, 25 W. R. 4o McComas v. Amos, 29 Md. 120; 228; Fargo v. Miller, 5 L. R. A. Garrison v. Hill- 81 Md. 206. 608 LAW OF WILLS. §522. Children. — Primary meaning. The primary meaning of "children" is the immediate legiti- mate olf spring of the person indicated as the parent."*^ A bequest to a "child" includes "children" when there is more than one.''^ A child en ventre sa mere is considered in law as a child m esse, and is included in a devise to the "children" of its parents generally,^^ Stepchildren are not ordinarily included in a devise to "children.^^ And where testator married for his second wife a widow with one child, and in his will made a devise to "my first children," and then provided "I desire that my present wife and her children shall have" certain specified property, it was held that the devise to "her children" included only her children by testator.*'^ A devise to "children" does not ordinarily include illegiti- mate children.""^ But children born illegitimate, who are sub- sequently rendered legitimate by the means provided by stat- ute, are included under a devise to the "children" of such parent.^'' More remote legitimate descendants, such as grand- children and great-grandchildren, are not included in a de- 41 Arnold v. Alden, 173 111. 229 ; Pugh V. Pugh, 105 Ind. 552; Ward V. Cooper, 69 Miss. 789; Dunn v. Cory, 56 N. J. Eq. 507 ; Hone v. Van Schaick, 3 N. Y. 538; Shannon v. Pickell, 8 N. Y. S. 584; 55 Hun, 127; Guernsey v. Guernsey, 36 N. Y 267 ; Magaw v. Field, 48 N. Y. 668 Palmer v. Horn, 84 N. Y. 516 Wylie V. Loekwood, 86 N. Y. 291 Hunt's Estate, 133 Pa. St. 260 Mcintosh's Estate, 158 Pa. St. 528 Lytle V. Beveridge, 58 N. Y. 592 42 Dunn V. Cory, 56 N. J. Eq 507. 43 /n re Burrows (1895). 2 Ch. 497; 13 Reports, 689; McLain v. Howald, 120 Mich. 274; 79 N. W. 182; Starling v. Price, 16 O. S. 29. 44 Kurtz's Estate, 145 Pa. St. 637. (This is especially where as in this case testator carefully distinguished step-children from his own children by providing in the will for them as children which came to him by marriage.) Lawrence v. Hebbard, 1 Bradf. 252 ; In re Hallet, 8 Paige, 375. 45 Blankenbaker v. Snyder ( Ky. ) , 36 S. W. 1124; Bolton v. Bolton, 73 Me. 299. 46Dorin v. Dorin, L. R. 7 H. L. 568; Hill v. Crook, L. R. 6 H. L. 265; Flora v. Anderson, 67 Fed. Rep. 182; Hicks v. Smith, 94 Ga. 809; Kent v. Barker, 2 Gray, 535; Adams v. Adams, 154 Mass. 290: Haraden v. Larrabee, 113 Mass. 430. 47 Grey's Trusts (1892), 3 Ch. 88. Contra, Hicks v. Smith, 94 Ga, 809. LAW OF WILLS. ^^^ vise to "children" when there are chiklren in existence to whom the name evidently applies, and there is nothing in the context to show that testator used the word in a more extended meaning ,. 4S A devise was to testator's children for life, "and on the de- cease of either of the above-named children leaving a child or children, the proportion of such deceased's child's income to such child or children.'^ A child who had a life interest died leaving a child and some grandchildren, children of a deceased child. "^ It was held that the devise inured only to the benefit of the surviving- child to the exclusion of the grandchildren.^^ §523. Extended meaning of "children." But the primary meaning of children is not an unyielding and rigid one. The will itself, or the surrounding facts and circumstances, mav give to it a broader meaning, though hard- ly a narrower one.^« Thus a devise by a testator who had been married twice, and left children by each marriage, to "our children" was held to include his children by each marriage.^^ Thus in a gift to two sons, and if they or either should die without issue then to "my other children," it was held that on the death of one son without issue the other son was one of the "ether children" to Avhom the estate passed.^^ How Ftrong the necessity of the case, or the necessary impli- cations must be in order to extend the meaning, is a proposi- tion upon which in the abstract form of statement the courts 48 Arnold V. Aklen, 173 111. 229 ; 333 ; Tillmghast v. De Wolfe 8 R. I. Annable v. Patch, 3 Pick. 360; 09: Winsor v. Odd Fellow sAsso- Ward V. Cooper, G9 Miss. 789 ; Feit elation, 13 R. L 149 : Neal v^ Hodges V Van Atta, 21 K J. Eq. 83; Howe (Tenn. Ch. App. 1899). 48 S. W. V Van Schaick, 3 N. Y. 538; In 263 ( affirmed Supreme Court ) . re Sanders, 4 Paige, 293; Stokes ''o Bragg v. Carter, 1/1 Mass. V. Stokes (Ohio), 12 Weekly Law 324. Bull. 135; Hunt's Estate, 133 Pa. -Ward v. Cooper, 69 ^I.ss. 789 St 260; Guthrie's Appeal, 37 Pa. ^i Crosson v. Dwyer, 9 Tex. Cir. St. 9: Tinglev v. Harris, 20 R. I. App. 482. 517; Williams v. Knight, 18 R. I. ^^ Brooks v. Iv>p, 54 N. J. Eq. 462. 610 LAW OF WILLS. do not fully agree,^^ and which is better presented in the con- crete by a discussion of the various extended meanings which the word may assume. §524. "Children" including grandchildren. The context and the surrounding circumstances may show that the word "child" means grandchild.^^ Children may mean grandchildren ;^^ or great-grandchildren.^^ Thus, where a will save a devise to certain of testator's children and their "heirs," providing that "if any of said heirs of mine should die leaving no child or children" the share of such person should be divided among the survivors, it was held that the context showed that the words "child" or "children" were sjTionymous with the word "heirs" in the prior devise and thus included grandchildren and great-grandchildren.^'^ Facts out- side the Vvill may, furthermore, show that the intention of the testator was to use the word "children" as inclusive of grand- children and great-grandchildren, and as practically synony- mous with issue.^* Where a devise is made to the "children" of one vho has been married and had children and grand- children, and the children have died, so that at the time of making the will he has only grandchildren, such devise to the "children" is held to include grandchildren.^^ 53 Arnold v. Alden, 173 111. 229 Cummings v. Plummer, 94 Ind. 403 Ward V. Cooper, 69 Miss. 789 55 Bowker v. Bowker, 148 Mass. 198 ; Brokau v. Peterson, 2 MeCart. 194; Feit v. Vanatta, 6 C. E. Green, Hunt's Estate, 133 Pa. St. 260. 84. A mere marginal note, or memo- 56 Miller v. Carlisle (Ky. ) randum, on a will devising all tes- (1890). 14 S. W. 75. tator's property to his children, to st Miller v. Carlisle (Ky.) the effect that the personal estate (1890), 14 S. W. 75. is to be divided equally among the 58 See cases in preceding notes un- "heirs," will not have the effect of der this section, extending the sense of the word 59 Gale v. Bennett, Amb. 681; "children" so as to comprehend Fenn v. Death, 2 Jur. (N. S.), 700; grandchildren. 7n re Hunt's Estate, 23 Beav. 73: Earl of Oxford v. 133 Pa. St. 260. Churchill, 3 V. & B., 59: Crook v. 5* Prowitt v. Rodman, 37 N. Y. Brookeing, 2 Vern. 107 ; Reeves v. 42 ; Scott V. Guernsey. 48 N. Y. Brymer. 4 Ves. 692 : B^rry v. Ber- 106; Douglass v. James. 66 Vt. ry, 3 Giff. 134, 7 Jur. (X. S) . 752; 21; Radcliffe v. Buckley, 10 Ves. 195. LAW OF WILLS. 611 §525. "Children" including illegitimate children. The term "children" may be extended by the terms of the will itself,''*^ or by the surrounding facts and circumstances,^^ so as to include illegitimate children. Thus where the illegiti- mate child was the otTspring of open and notorious cohabita- tion, and the will speaks of the parties as husband and wife, and refers to the illegitimate offspring specifically as "chil- dren" of the designated parents, it is held that a subsequent de- vise generally to the "children" of such parents will include illegitimate children.^^ Extrinsic evidence of the surrounding facts and circum- stances may serve to extend the meaning of "children" to illegitimate children. Thus, evidence that the parents of the illegitimate children lived together as husband and wife, and were recognized as such by testator^ may serve to show that in the "children" of such parents, spoken of in the will, the illegitimate children were included.^^ Where the illegitimate child is not testator's, it is held, in some jurisdictions, that even though it is legitimated subse- quently, it can not take under a devise to the "children" of its parent without anything further to show that such children were to be included, as the statute making them legitimate did not have such effect for all purposes, but only to enable them to take by descent from their f ather.^^ §526. Issue and offspring Issue is a word whose primary meaning, in the absence of anything to show a contrary intent, is that of legitimate lineal In re Smith, 35 Ch. Div. 558: Dunn ^^ In re Harrison (1894), 1 Ch. V. Cory, 56 N. J. Eq. 507. 561 ; In re Humphries, 24 Ch. Div. A devise to "the youngest child 691; Hill v. Crook, L. R. 6 H. L. which shall hereafter be born of 265 ; Dickison v. Dickison, 39 111. all my said children," was held to App. 503; Sullivan v. Parker, U3 mean testator's youngest grand- N. Car. 301. child. Otterback v. Bohrer, 87 Va. ^^In re Harrison (1894). 1 Ch. 548. 501; Sullivan v. Parker, 113 N. 60 Flora v. Anderson, 67 Fed. Car. 301. 182. 64 Hicks v. Smith, 94 Ga. 809. 61 In re Jeans, 13 Rep. 627;^ In re Bvron, 30 Ch. Div. 112. 612 LAW OF WILLS. descendants indefinitely.^'' Tke rule tLerefore is, that the word "issue" in its general sense, in the absence of any indi- cation of intention to the contrary, includes in its meaning de- scendants generally. "^"^ But the context, the entire will, or the surrounding circumstances may modify this primary meaning.^^ The courts which adhere,- to the first meaning concede that "issue" is amhiguous.^^ Thus where "issue" is correlated with "parent," as where the "issue" are indicated as the sub- stitutional beneficiaries of their deceased "parent," it ordina- rily means children.^^ "Where the word ^issue' is used with reference to the parent of such issue, as where the issue is to take the shares of the deceased parent, it must mean his chil- dren; that is, the word 'parent' confines the word 'issue'. "'''^ This me&ning may be rebutted by the context. Thus, in a gift of eleven legacies to "children" and a twelfth to "issue," it was held that the word "issue" in the twelfth legacy was carefully inserted as not synonymous with "children." "^^ Where the word "issue" is used in this manner in one clause of the will with the meaning of "children," it will be pre- sumed to be used in the same sense in another clause of the will with the same meaning.'^- The primary meaning of 65 Weldon v. Hoyland, 4 De G. F. statute they could inherit from her. & J. 504; Bigelow v. Moiong, 103 Gibson v. McNeely, 11 0. S. 131. Mass. 287; Hall v. Hall, 140 Mass. 66 Chwatal v. Schreiner,148 N. Y. 267; Dexter v. Inches, 147 Mass. 683. 324; Jackson v. Jackson, 153 Mags. 67 Arnold v. Alden, 173 111. 229. 374; 11 L. R. A. 305: Hills v. Bar- 68 Palmer v. Horn, 84 N. Y. 510: nard, 152 Mass. 07 : 9 L. R. A. Chwatal v. Schreiner, 148 N. Y. 683. 211; Weehawken Ferry Co. v. Sis- 69 Arnold v. Alden, 173 111. 229; son, 17 N". J. Eq. 475; Chwatal v. Chwatal v. Schreiner, 148 N". Y. Schreiner, 148 N. Y. 683; Drake 683. V. Drake, 134 N. Y. 220; Soper v, to Madison v. Larmon, 170 111. Brown, 136 N. Y. 244: Ward v. 65, citing Fairchild v. Buchell. 32 Stow, 2 Der. Eq. 509; Moon v. Bear. 158; Sibley v. Perry, 7 Ves. Hapford (Com. PL), 2 Ohio N. P. Jun. 552; Arnold v. Alden, 173 365; 3 Ohio Dee. 508: Robins v. 111. 229: Drake v. Drake, 134 N. Quinliven, 79 Pa. St. 333; Pearce Y. 220: 17 L. R. A. 004. V. Rickard, 18 R. I. 142; 19 L. R. A. " /„ re Birks (1899), 1 Ch. 703; 472. 68 L. J. Ch. N. S. 319. Illegitimate children are therefore 72 Madison v. Larmon, 170 111. excluded even though the devise 05. is to their mother, and by the local LAW OF WILLS. 613 "issue" as given above has been questioned. " ^Issue/ in its primary signification, imports 'children' ... It is a second- ary meaning by which it has been hehl to include the issue of issue in an indefinitely descending line." '^^ So in another case a devise in trust for A, and at his decease to his issue, was held to mean to his children.'^^ It is possible for testator, by the context and associations of the will, to restrict the meaning of "children" to that of "sons," though such restriction can be made only or a very clear intent of testator as manifest in the will.'^^ An adopted illegitimate child is not "issue" of the adopting parent so as to defeat a remainder contingent upon the death of such person without issue.'^^ "Offspring" is said to be synonymous with issue. '^^ It in- cludes lineal descendants, however remote in degree. '^^ §527. Descendants. A descendant is "one who descends as offspring, however re- motely; correlative to ancestor or ascendant." '^^ The term includes the most remote lineal offspring, and is practically sjTionymous with "issue" in its legal meaning.^*^ Hence it 73 Thomas v. Levering, 73 Md. son v. Sykes, 23 Beav. 40, 51; Or- 451, citing Carter v. Bentall, 2 ton's Trust, L. R. 3, Eq. 375. Beav. 552; 2 Redf. on Wills, p. 75 Weatherhead v. Baskerville, 11 38 n. 5: In this case a devise vpas How. (U. S. ), 329. made to devisee's "issue, children 76 Wyeth v. Stone, 144 Mass. 441 ; or descendants," per capita, and not Jenkins v. Jenkins, 64 N. H. 407. per stirpes; and the living children Contra, Hartwell v. TefYt, 19 R. and the descendants of the deceased I. 644; 34 L. A. R. 500 (adopted children were held to take to the only, not illegitimate) . exclusion of the children of the liv- 77 Mitchell v. Ry. 165 Pa. St. 645. ing children. 78 Thompson v. Beasley, 3 Drew- 74 Dexter v. Inches, 147 Mass. ry, 7 ; Young v. Davies, 2 Dr. & Sm. 324. The court said that they en- 167; Barber v. Ry. 166 U. S. 83; tertained this view, "however the Allen v. Markle, 36 Pa. St. 117. English courts would construe the 79 Tichenor v. Brewer's Ex'r, 98 word 'issue' in the clause before Ky. .349; 33 S. W. 86. us," and citing, but not following, «" Bates v. Gillett, 132 111. 287: the following cases in which "issue" Tichenor v. Brewer's Ex'r, 98 Ky. was held to show representation. 349; 33 S. W. 86. Ross V. Ross, 20 Beav. 645 ; Ivobin- 614 LAW OF WILLS. excludes collateral relations f^ nor does it include relatives in the ascending line.*^ §528. Family. At one time the word "family" was held to be of a meaning so uncertain that a devise to a "family" of a named person was void for uncertainty;*^ and trusts generally for the bene- fit of the "family" of a designated person have been held void for uncertainty.^^ This extreme view has since been aban- doned by the courts with substantial unanimity, and "family" is held to be a word of such definite meaning when employed in a will that a devise to a "family" of a person is valid. But what that meaning is, is not so unanimously agreed upon by the courts. Probably the statement once made by an Alabama court that it is a term "of more or less extensive import, ac- cording as the context of the will may indicate," may stand as fairly representative of the consensus of judicial opinion.*' Thus in some jurisdictions "family" includes the wife and children of testator resident at the homestead together with such servants as are there residing.*^ And in carrying out this theory to a logical conclusion, children of the party designated who have reached full age, and who live away from the paren- 81 Bates V. Cxillett, 132 111. 287; Tichenor v. Brewer's Ex'r, 98 Ky. 349 (such as half-brothers and sis- ters) ; Baker v. Baker, 8 Gray (Mass.), 101. Contra as to the meaning in Ohio, Turler v. Turley, 11 0. S. 173, where it is said that the word descendants "includes both lineal and collateral relations — all, in short, that would take the estate under the statute of descents if ( tes- tator) had died intestate. All such persons may not be in fact, but they are in laic, the descendants of the person from whom they receive the estate." 82 Tichenor v. Brewer's Ex'r, 98 Ky. 349; 33 S. W. 86 (such as mother) ; Mitchell v. Thorne, 134 N. Y. 536; Schmaunz v. Goss, 132 Mass. 141. (A devise to A and his "descend- ants" was held not to mean a de- vise to A and "the heirs of his body," since the devise to A was prima facie a fee simple, and, there- fore, was not cut down by words of doubtful import. ) 83 Harland v. Trigg, 1 Bro. C. C. 142: Robinson v. Waddelow, 8 Sim. 134. 84 Warner v Rice, 66 Md. 436. 85 Rugely v. Robinson, 10 Ala. 702. 86 IRickabee v. Swoope, 20 Ala. 491; Wood v. Wood, 63 Conn. 324. LAW OF WILLS. 615 tal domicile, are held to be not included within the meaning of "family." ^^ In other jurisdictions the primary meaning of ''family" is held to be that of "children" unless the context indicates a different signification.^^ So a devise to A's family has always been held to exclude A.^^ It has also been said to mean "next of kin" in its primary signification.^*' In juris- dictions where the word "family" means either "children" or "next of kin," it makes no difference whether the children or next of kin live with the person whose "family" is the object of testator's bounty or not. Thus, where a son of A by A's first marriage removed from A's home upon A's second mar- riage, it was held that a devise to support A or his "family" would include the support of this son.^^ The term "family," as used in a will to indicate beneficiaries, does not in its pri- mary signification include stepchildren, even when they live with the person designated as the head of the family.^- Whether the term "family" includes the wife or widow of the person designated as the head of the family is a question of some difficulty. In jurisdictions in which the primary sense of "family" is members of the same household, a devise to one's family is held to include his wife.®^ And a devise to be used for the support of "the family" of a designated person is usually held to include the wife of such person.®^ But in a 87 Wood 7. Wood, 63 Conn. 324, 604 ; Wallace v. M'Micken, 2 Dis- citing and following Hart v. Gold- ney (Ohio), 564. smith, 51 Conn. 479; Bradlee v. so Smith v. Greeley, 67 N. H. Andrews, 137 Maas. 50; Bates v. 377. Dewson, 128 Mass. 334; Kain v. 9i Smith v Greeley, 67 N. H. 377 ; Fisher, 6 N. Y. 597. 30 Atl. 413. 88 pigg V. Clarke, 3 Ch. 672 ; 92 Bates v. Dewson, 128 Mass. Gregory v. Smith, 9 Hare, 708; 15 334. Eng. L. & Eq. 202 ; Snow v. Teed. 93 Cosgrove v. Cosgrove, 69 Conn. L. R. 9 Eq. 622 ; Beales V. Crisford, 416; Bates v. Dewson, 128 Mass. 13 Sim. 592; In re Muflfett, 55 L. 334; Langmaid v. Hurd, 64 N. H. J. 671; Flournoy v. Johnson, 526. 7 B. Mon. (Ky.), 693; Heck v. 94 Ruprpiy v. Robinson, 10 Ala. Clippenger, 5 Pa. St. 385; Alsop's 702; Bowditch v. Andrew, 8 Allen App. 9 Pa. 374; White v. White, 30 (Mass.), 339; Bradlee v. Andrew, Vt. 338; Phillips v. Ferguson, 85 137 Mass. 50; Smith v. Greeley, Va. 509; 1 L. R. A. 897. 67 N. H. 377; White v. White, 89 Barnes v. Patch, 8 Ves. Jr. 30 Vt. 338. 616 LAW OF WILLS. gift to "the surviving members of mj brother's and sister's families, which are above named, in equal parts," it was held that "family" meant "stock," and the beneficiaries were the children of the persons named, excluding surviving spouses.''^ §529. Relatives. The popular meaning of the word "relatives" or "relations" is that of all persons within any degree whatever of consan- guinity or affinity.^^ But when the word "relations" is used in a will to denote a class of beneficiaries, it is settled that the law imposes a technical meaning and not the popular one. The primary meaning of "relatives" or "relations" is, such per- sons as would take under the statutes of descent and distribu- tions if testator had died intestate.^'^ This primary meaning may, however, be modified by the con- text or by the surrounding circumstances. Thus where testator has in one clause of his will enumerated certain persons as his "nearest relations," it will be presmned that the same ex- pression in a later clause includes the same persons. ^^ The primary meaning of "relatives," of course, imports le- gitimacy. But this meaning may be extended by the context. Thus certain persons who were related to testator by blood, but were illegitimates, were referred to by him in his will as "cousins." It was held that these persons could take under a be- quest to testator's "relatives hereinbefore named," especially since the bequest to these "relatives" would be a bequest to one person only, if the illegitimate relations were excluded.^^ 95 Hoadley v. Wood, 71 Conn. 201 ; Handley v. Wrio^htson, 60 Md. 452. (The court laid down the 198; Varrell v. Wendell, 20 N. H. general rule that "family" in a 4,31 : Hall v. Wiggin, 67 N. H. 89 gift to the "family" of A, seldom (1894); 29 Atl. 671. includes the wife unless A (the hus- as Hall v. Wiggin, 67 N. H. 89; band) is to share in the bounty.) 29 Atl. 671. 96Esty V. Clark, 101 Mass. 36; ^^ In re Jodrell (C. C. A.), L. E. Huling V. Fenner, 9 R. I. 410. 44, Ch. D. 590; Seale-Hayne v. 97 Ross V. Ross, 25 Can. S. C. R. Jodrell, 65 L. J. 57— H. L. (E.) ; 307; Drew v. Wakefield, 54 Me. (1891), A. C. 304. LAW OF WILLS. 617 §530. Brothers and sisters. The word "brothers" in a devise to the brothers of testa- tor has been held under special circumstances to include a brother who was dead when the will was executed. In this case there was but one brother living when the will was exe- cuted, in which there was a devise to testator's "brothers," and the children of deceased brothers were otherwise unprovided for.^^^ A direction for the distribution of a fund among the "brothers and sisters" of testator and their lineal heirs includes brothers and sisters of the half blood as well as those of the whole blood.^"^ §531. Nephews and nieces. The words "nephews" and "nieces" do not ordinarily in- clude grandnephews and grandnieces. This is especially true where these grandnephews and grandnieces have been already referred to in the will as the children of a deceased niece.^"- The context and extrinsic evidence, however, may show that "niece" was used for "grandniece." Thus a devise to the three "nieces" of testator was held to menn a devise to his grand- nieces where he had no nieces at the time of the making of the will but had grandnieces, with which facts he was acquaint- g(j.io3 j^Qj, (jQpg ||-^g tei-j^i "nephews" ordinarily include nephews of the wife of the party designated.^ "^"^ §532. Cousins. When used in a will to denote a beneficiary, the word "cousin" ordinarily means a first cousin; that is, a son or daughter of an uncle or an aunt.^°^ And a legacy to each of 100 Fuller v. Martin — Ky. — , lo^ Root's Estate, 187 Pa. St. 118. (1895) : 29 S. W. .315. ins Stevenson v. Abington, 8 Jur. loiYetter's Estate, 160 Pa. St. (N. S.) 811; 6 L. J. 345: 10 W. R. 506. 591 ; Stoddart v. Nelson, 6 De G. M. 102/^ re Woodward, 117 N. Y. & G. 68 ; White v. Mass. Inst, of 522; 7 L. R. A. 367. Tech., 171 Mass. 84, distinguishing 103 Jn re Davis — R. I. — , Nutter v. Vickery, 64 Me. 490. (1896) ; 35 A. 1046. 618 LAW OF WILLS. the "cousins" of testatrix passes to the first cousins only, and not to lirst cousins once removed. ^^^ But where testator in his will specifically refers to his first cousins once removed as his '^cousins," they will be included under a subsequent legacy to his cousins.^ ^'^ ' The term "second cousin" is one whose meaning is open to much popular dispute though it seems well settled at law. By "second cousin" in a will is meant a child of a first cousin of a parent of the person whose relationship to such child is in ques- tion.^ ^^ It does not include the child of testator's first cousin, who is technically the first cousin once removed.^ *^^ But the con- text and the surrounding circumstances may show that by a de- vise to a "second cousin" is meant a devise to a first cousin once removed. Thus where testator had no second cousins but had first cousins once removed, it was held that a devise to his "second cousins" would enure to the benefit of his first cousins once removed.^ ^^ The term "cousin," like other terms indicating relationship, ordinarily imports legitimacy, but this rule yields to testa- tor's clear intention, as where he specifically describes cer- tain illegitimate relations as his "cousins." ^^^ 106 Sanderson v. Bayley, 4 Myl & doubt about its meaning suggested C. 56 ; White v. Mass. Inst, of Tech., by anybody that I am aware of." 171 Mass. 84; Rowland v. Slade, Popular American usage is by no 155 Mass. 415 (to "all my first means as accurate, but except where cousins" does not include first cous- altered by the context the legal ins once removed, citing Merriam meaning of the word seems well set- V. Simonds, 121 Mass. 198) ; Web- tied, as being the same meaning ster's Estate, 23 Ch. D. 737; In re as that given by the English courts. Chinery, 39 Ch. D. 614; Groves In popular language, "second cous- V Musther, 43 Ch. D. 569; In re in" is used of the child of a first Hotchkiss, L. R. 8 Eq. 643 ; Haberg- cousin of the person whose rela- ham V. Ridehalgh, L. R. 9 Eq. 395. tionship to such person is in ques- 107 Wilkes V. Bannister, 30 Ch. tion. Div. 512. 109 In re Parker, 15 Ch. Div. 528. 108 In re Parker, 15 Ch. Div. 528. no In re Bonner, 19 Ch. Div. In this case the court said: "The 201. relationship is a perfectly well- m 7u re Jodrell (C. A.), L. R. known and perfectly well-settled re- 44, Ch. D. 590. lationship. There never was any LAW OF WILLS. 619 §533. Representatives. While tlie word "representatives" is a word which "may mean almost anything, especially in wills," ^^^ it has a pri- mary meaning which is adhered to in the absence of anything to suggest a different meaning. This primary meaning is that of "legal personal representatives;" that is, of executors and administrators.^ ^ ^ But this primary meaning is not a firm one. The context often shows that the word "representative" does not mean the executor or administrator, but those persons who would take, if the person to whose "representatives" the devise is made had died intestate.^ ^* Thus a devise to testator's grandchildren and "the representatives of any deceased grandchild" is a devise to those who would take on the death of such deceased grandchild, intestate, under the statute of descent and distribution.^ ^^ The context may limit the meaning of "legal representa- tives" even more. Thus, where testator devised to his sisters, and if either of them died "without legal representatives," then to the survivor's, it was held that "legal representatives" meant lineal descendants.^ ^^ §534. Servants. A devise to "such persons as shall be in my employ at the time of my death" does not include persons who were hired a day or so at a time to assist the regular servants ;^^^ nor does a devise "to my other employees and laborers" include employees in a public park under testator as a park commis- 112 Walter v. Hensel, 42 Minn. liams v. Knight, 18 R. I. 333; In re 204. It has "no precise determinate Bates, 159 Mass. 252 ; 34 N. E. 266 ; meaning." Staples v. Lewis, 71 Halsey v. Paterson, 37 N. J. Eq. Conn. 288. 445. 113 Zn re Ware, L. R. 45 Ch. D. ns /« re Bates, 159 Mass. 252; 209. 34 N. E. 266. 114 Bains v. Ottey, 1 M & K. ne Staples v. Lewiis, 71 Conn. 465: Cotton v. Cotton, 2 Beav. 67; 288. Long V. Black-all, 3 Ves. 486; Sta- ht Metcalfe v. Sweeney, 17 R. pies V. Lewis, 71 Conn. 288; Wil- I. 213. 620 LAW OF WILLS. siouer, where he had employees in a private garden, and the clause of his will immediately preceding the clause in dispute had given legacies to certain of these private laborers.^ ^^ But a devise to the servants who have been in the employment of testator for ten years in a certain place includes a servant who was in the employment of testator for the required time at the place specified, even if he was not in testator's employ- ment at testator's death.^^^ §535. Legatees, A ''deceased legatee" in a gift to a certain class, "the issue of any deceased legatee to take its parent's legacy," means a person included within such class, who would have been a bene- ficiary under the will if he had survived. ^^'^ In a devise to the legatees, share and share alike, the executor to whom certain property is bequeathed in trust is to be included among the "legatees," taking his share on the same trusts as the preced- ing bequest.^ ^^ So a further l:;equest to be divided among the "legatees" includes a corporation to which a bequest has been made.-'^^ A gift of small mementos by will does not make the re- cipient a legatee,^ ^^ yet it has been held that a gift of a pair of rifles makes the recipient a legatee.-'-^ §536. Survivors. The word "survivors," when used of a class, is limited to the individuals of such a class, and does not include their children. Thus a devise to testator's grandchildren, subject to be defeated on their death without issue, in which event such share is to go to the survivors, is not a devise to any of the children of these grandchildren.^ ^^ 118 Shaw's Estate, 51 Mo. App. 122 Gray's Estate, 147 Pa. St. 112. 67. 119 /n re Sharland, (1896), 1 Ch. 123 White v. Massachusetts Insti- 517. tute of Technology, 171 Mass. 84. 120 Hills V. Barnard, 152 Mass. 124 Neville v. Dulaney, 89 Va. 842. 67; 9 L. K. A. 211. 125 Coleman Bush Investment Co. 121 Logan's Estate, 1.31 N. Y. 456. v. Figg (Ky.), (1894), 25 S. W. 888. 621 LAW OF WILLb. §537. Miscellaneous.— Occupations. a' devise of a law Ul-vary to testator's "nephews who may read Uw" includes those who have begun the study o la. Tth the intention of being admitted to the bar and prac Uctng Hw nd also those who have already been adnutted, but does to 'ilude a nephew who had registered as a law student,, ".t had abandon«l the study, and did not intend to apply fov ^' w'::Uwile to'lTof certain persons as should be ';prepar- in:for the ministry" includes such as have begun a strict theo- o:ica course of stndv, but it docs not include one who .s study- bleneral collegiate work as a preparation for tins theological courio study.-' So a devise to be expended in educating oeln designated persons at a college to be erected on a specified piece of ground dedicated by testator fails en ire and passes under an alternative clause to other named col- iTi' Xre the college was not erected because testator did not dedicate the land."" . „:„„„^" wn^s A devise to testator's "spinster or unmarried nieces wa Held to include such as were widows at testators death in adition to such as had never been married. - §538. Misdescription of beneficiary .-Natural persons. ' The indulgence shown to the intention of testator man- ifests itself in a striking manner in cases of misdescription. 1 a fundamental rule in these cases that a mere matter of m s description does not vitiate-that is, if no person exists w^^ corresponds in all particulars with the description given in tie will but if a person does erist who corresponds to the de cri;tion in eno'ngh particulars to make it ~% certain that he was intended and no other person exists who corre spends sufficiently to the description to raise a doubt as to the ,=, Benin's E.tate, 16!) Pa. St. College v. S„oen»kev College, 9-2 Va. 320. ^^^- ^ u ^ ri ATn 129 Convav's Estate, 181 Pa. St. 127 Clayton v. Robards, 54 Mo. ^'J' . App. 539. ^^^• 128 Trustees of Emory and Henry 622 LAW OF WILLS. identity of the beneficiary, the beneficiary thus indicated will be held to be the beneficiary intended under the will, even though he does not in all respects correspond to the descrip- tion in the will.^^^ There is, however, no need of applying this doctrine where there is no real misdescription or ambiguity in view of the established rules of law. Thus a legacy was given "unto my nephew, William Hoot." There were two persons of that name, one a relative of testator's by blood, the other a nephew of testator's wife. Since the primary meaning of "nephew" is that of a blood relative, it was held that there was no ambiguity of any sort in such devise.-^ ^^ A bequest was made to one who was designated as testator's "sister, Anastasia Cummings." Testator had only two sisters, Maria Cummings and Katherine Kelly. A similar bequest was made to Katherine Kelly. It was held that, in spite of the misnomer, Maria Cummings was entitled to the bequest to Anastasia Cummings.^ ^^ So where testator made a bequest to the children of "Dr. James B. S.," testator having a brother named Joseph B. S., who was a doctor, and a nephew named James B. S., who was not, it was held that the name of devisee, referring to a person in existence, was clear, notwithstanding a possible misdescription.^ ^^ §539. Misdescription of beneficiary. — Corporations. Misnomer is especially frequent in devises to charitable corporations. The real names of such corporations are often never used and never known by people generally; and many testators do not feel the need, in preparing a Avill, of getting the real name of the proposed beneficiary. They prefer to 130 /n re Whitty, 30 Ont. Rep. i^i Root's Estate, 187 Pa. St. 118. 300: Doughten v. Vandever, 5 Del. i32 /^ re Whitty, 30 Ont. Rep. Ch. 51 ; Woman's, etc.. Missionary 300. Society v. Mead, 131 111. 338: Reil- i33 Atterbury v. Strafford (N. J.) ly V. Union Protest. Infirmarv. 87 ( 1899 ) , 44 Atl. 160. An additional Md. 664: Smith v. Kimball. 62 N. fact in this case was that James H. 606: Elwell v. General Univer- B. S. was once a clerk in a drug- salist Convention, 76 Tex. 514. store and was nicknamed "Doc." LAW OF WILLS. ^^^ guess at the name. Hence the number of adjudicated cases upon this point. It is an elementary principle that where a corporation is indicated in a will by an erroneous name, such a mistake will not avoid the gift if it is possible by means of the name used, or by extrinsic evidence, to identify the corporation intended as beneficiary with sufficient certainty.^ ^^ :N'o difficulty is presented where a bequest is made to the board of trustees of a specified corporation, and their suc- cessors and assigns, and the name has been changed before the execution of the will; while a technical misnomer, the inten- tion of testator in such a case is too clear for mistake.^^^^ A more difficult question is presented where the name given^ in the will is not the name of any existing corporation. If such corporation can be identified by the location of its build- ins-s the misnomer will not invalidate the gift. Thus a be- quest to the "Presbyterian Infirmary" situated on a certam street was held to mean the "Union Protestant Infirmary" situated on the named street. But there was no other organ- ization which could have taken under this bequest.^^^^ Where the name given to the corporation is not that of any ex- isting organization, but closely resembles the name of a cor- poration engaged in similar work, the gift will be held a gift to such corporation if the evidence indicates that this corporation was intended by testator.^ ^^ i34Reilly V. Union Protestant In- mean the "Woman's Missionary So- flrmary 87 Md. 664; Moore v. cietv of America for Heathen Moore '50 N. J. Eq. 554; 25 Atl. Lands"; a gift to the "Hahnemann 403; Van Nostrand v. Board of Do- Hospital at Chicago" was held to mestie Missions (N. J.) (1899), 44 mean the "Board of Trustees of the Atl 47'>- Elwell v. Universalist Hahnemann Medical College ; a General Convention. 76 Tex. 514. gift to the "Fund for Disabled Min- 133 Elwell V. Universalist General isters of the Presbyterian Church Convention, 76 Tex. 514. was held to mean the "Presbytenan issReilly V. Union Protestant In- Board of Relief for Disabled Min- firmarv, 87 Md. 664. inters," and a legacy to the Chi- 137 Woman's, etc.. Missionary So- cago Training School for Nurses. ciety v Mead, 131 111. 338. was held to mean the "Illinois ( \ crift to the "Woman's Union Training School for Nurses." which Mission" (of Chicago) was held to was located at Chicago. The soci- 624 LAW Oh' WILLS. Where two organizations each claim the same name, a some- what difficult question is presented by a devise to a corporation of this name without indicating which corporation was in- tended. In a recent Pennsylvania case, where a bequest was made in this manner, the old organization was empowered to hold property. It was affiliated with a general church, but nothing in the constitution of the general church, or the agree- ment of affiliation, operated to transfer the property of the in- dividual churches to the general organization. Subsequently the old society, by a majority vote, severed its connection with the general church, and thereupon the minority seceded from the majority, and, under direction of the general church, formed a new society. In the absence of anything to indicate a contrary intention it was held that the legacy was meant for the original local organization.^ ^^ Where a devise is unmistakably meant to go to certain named natural persons as trustees for a charitable purpose (establishing a home for destitute children) it could not be construed as intended for a corporation of which these natural persons were the incorporators, formed for the same pur- pose.-^ ^^ eties which received the bequests (A legacy to the "Home Mission were the only ones in any way cor- of the Presbyterian Church" of a responamg to the names used in named city was held to mean the the will, and testatrix was person- "Trustees of the Presbytery" of ally interested in each of them.) this city. In this case the com- Chambers v. Higgins (Ky. ), mittee of the trustees of the Pres- (1899), 49 S. W. 4.36. bytery which had charge of the (A devise to the "Christian Mis- home missionary work was the most sionary Society or Convention of prominent part of tlie organiza- the Christian Church of Kentucky," tion.) was held to mean an incorporated iss Aitkin's Estate, 158 Pa St. association kno-\vn as the "Kentucky 541. Christian Missionary Convention." iso Woodruff v. Marsh, 03 Conn. lleilly V. Union Protestant In- 125. firmarv, 87 Md. 664. LAW OF n'lLLS. 625 CHAPTER XXlll. GIFTS TO A CLASS. §540. Definition. "In legal contemplation a gift to a class is an aggregate sum to a body of persons, uncertain in number at the time of the gift, to be ascertained at a future time, who are to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number." ^ This definition is the favorite one and has the sanction of authority. It is defective, however, in restricting the time of ascertainment of the numbers of the class to a future time. It is possible for testator to devise to a class as fixed at the time that he makes the will.^ A similar definiton was given in a recent Tennessee case. The court said that the beneficiaries take as a class under the will, the bequest being to a class of persons subject to fluc- tuation by an increase or diminution of its number in con- sequence of future births or deaths, and the time of payment or distribution of such fund being fixed at a subsequent period, on the happening of a designated event, and the bequest being 1 In re Bro\vn, 154 N. Y. 313, cit- 67; Jarman on Wills, Sth Ed. *269. ing In re Kimberly, 150 N. Y. 2 See Sec. 546. 00; Dulanv v. Middleton, 72 Md. 6.26 — W OF WILLS. of an aggregate fund given to the children as a unit and pass- ing a joint interest.^ §541. Examples of gifts to a class. Where a devise does not indicate the individual members of the class by name or by description, but merely designates the class, such as '^children," ^ or ''nephews," ^ the courts treat such devise as a gift to a class and apply the rules peculiar to such gifts. §542. Examples of gifts held not to a class. When a testator devises property to persons who are desig- nated individually, as by name or description, or where he de- vises property in severalty to a number of persons, the courts do not treat such devises as devises to a class, since the share of each does not depend upon the ultimate number of those who com- pose the class.^ A gift to "each" of testator's two children was held to be a gift to them individually and not as a class.'^ §543. Effect of naming members of a class. Where there is a gift to a number of persons who are in- dicated by name, and also further described by reference to the class to which they belong, the gift is held yrima facie to be a distributive gift and not a gift to a class.^ 3 Franklin v. Franklin, 91 Tenn. 251; Horton v. Earle, 162 Mass. 119, citing Frierson v. Van Buren, 448: Markle's Estate, 187 Pa. St. 7 Yer. G06; Satterrield v. Mayes, 11 639; Hick's Estate, 134 Pa. St. Hum. 58; Womack v. Smith, 11 507. Hum. 478 ; Bridgewater v. Gordon, 7 Rogers v. Strobach, 15 Wash. 2 Sneed. 5. 472. 4 Dryer V. Crawford, 90 Ala. 131 ; § Bill v. Payne, 62 Conn. 140; Haas V. Atkinson, 9 Mackey (D. Eockwell v. Bradshaw, 67 Conn. 8 C), 537. Frost v. Courtis, 167 Mass. 251; 5 Pendleton v. Kinney, 65 Conn. Dildine v. Dildine, 32 N. J. Eq. 78 ; 222. Moffett v. Elmendorf, 152 N. Y. 475. 6 Sturgis V. Work, 122 Ind. 134; (In such eases if one of the bene- Townsend v. Townsend, 156 Mass. ficiaries dies before the testator, 454: Frost v. Courtis, 167 Mass. LAW OF WILLS. 627 The context, however, may show that the names of the bene- ficiaries were added to the description of them as members of a class for the purpose of greater certainty, and that the par- amount intention of testator was to make the gift to a class. In such case the gift will be treated as one to a class even if their names are given in the will.^ So a devise to "the heirs" of A, "namely, B, C and D," was held to be a gift to a class.^° §544. Exclusion from a class. A testator has full power to exclude any designated person or persons from a general class of beneficiaries under his will if he makes clear his intention so to do.^^ Thus a devise to testator's "children" does not include children to whom testa- tor, as in the preceding clause, bequeathed property "to be in full of their portion of my estate, both real and personal. "^^ And where the testator provides in his will that the rest of his estate should be distributed amonff his "children and there is, therefore, no right of sur- vivorship to the other named bene- ficiaries.) Saxton V, Webber, 83 Wis. 617; 20 L. R. A. 509 Thus a gift "to my brothers Ealph and Abram" is not a gift to the brothers as a class, although they were in fact the only brothers of testator. Dildine v. Dildine, 32 N. J. Eq. 78. oBolles V. Smith, 39 Conn. 217; Warner's Appeal, 39 Conn. 253 "to the Sons of my two sisters, deceased, II and C," where the sisters had b:'en the wives of the same husband, successively, and H was the son of one sister and C of the other. Tal- cott v. Talcott, 39 Conn. 186 (to A, C and D and all the children of A, where C and D were children of A). Springer v. Congelton, 30 Ga. 976 (to all the children of X, name- ly, A, B and C). Jackson v. Rob- erts, 14 Gray, 546 (to A, B, C, D and E, the children of X). Sted- man v. Priest, 103 Mass. 293 (to A, B and C, grandchildren of X). Swallow V. Swallow, 166 Mass. 241 ; Rixey v. Stuckey, 129 Mo. 377 (to the children of X, namely, A, B and C). Church V. Church, 15 R. I. 138. 10 Swallow V. Swallow, 166 Mass. 241. (Hence where only one of the three heirs survived at testator's death he took the entire gift to the three.) 11 Griffin v. Ulen, 139 Ind. 565; Dickison v. Dickison, 39 111. Appeal, 503; Sullivan v. Straus, 161 Pa. State, 145 ; Wildberger v. Cheek, 94 Va. 517 distinguishing Patch v. White, 117 U. S. 210. 12 Dickison v. Dickison, 138 111. 541, affirming 39 111. Appeal, 503; so "heirs," Ober v. Hickox, 10 Ohio C. D. 128. Contra, Fahnestoek's Estate, 147 Pa. St. .-527. 628 LAW OF WILLS. grandchildren/' it does not include a son whom he had pre- viously expressly disinherited by the will /^ nor a son to whom he had expressly given half his estate where he devises the rest to his ''heirs." ^'^ But the intention of testator to exclude those who would naturally be included within the class designated must be clear.^^ Thus where testator had given reason for excluding his brother-in-law and children on account of their wealth, such children, nevertheless, are included in a bequest to the surviving heirs of the father and mother of testator/^ and so a devise to the "other legal heirs and representatives not hereinbefore named" of testator, is not held to exclude a brother who had been named previously in the will, but only in a phrase describing beneficiaries named as the children of such brother, naming liim.^'^ §545. Time of determining the members of a class. — General rule where possession is immediate. Since a will speaks from the day of testator's death, that is, since it must prima facie be considered with reference to the state of affairs as they exist at the date of his death, the num- bers of the class of beneficiaries, where a devise is made to a class, is prima facie, in the absence of anything showing a contrary intention, to be determined upon the death of the testator.^ ^ Thus, ordinarily, a devise over after life estate 13 Sullivan v. Straus, 161 Pa. 163 Mass. 130; Shaw v. Eckley, 169 State, 145. Mass. 119; Marsh v. Hoyt, 161 14 Griffin v. Ulmer, 135 Ind. 565. Mass. 459; Whall v. Converse, 146 15 Fahenstock's Estate, 147 Pa. Mass. 345; Hall v. Smith, 61 N. State 327. H. 144; Starling v. Price, 16 0. S. 16 Deiter v. Shatter, 70 Vt. 150. 29; In re Smith, 131 N. Y. 239: So- 17 Faulstich's Estate, 154 Pa. St. teldo v. Clement, 29 Weekly Law 188. Bull. 384; Landwehr's Estate, 147 18 Ruggles V. Randall, 70 Conn. Pa. State, 121 ; Striewig's Estate, 44; Hoadly V. Wood, 71 Conn. 452: 169 Pa. St. 61: Chase v. Peck- Kellett V. Shepard, 139 111. 433: ham, 17 R. I. 385; Sherman v. Hill V. Harding, Ky. (1892), 17 S. Baker, 20 R. I. 446; 40 L. R. A. W. 437; Sevier v. Douglas, 44 La. 717; Tucker's Will, 63 Vt. 104: Ann. 605; Coggins v. Flythe, 113 Buzby v. Roberts, 53 N. J. Eq. 566. N. C. 102; Clark v. Benton, 124 1895 ; 32 Atl. 9. N. r. 200; Richardson v. Willis, "LAW OF WILLS. 629 to the "heirs" of a designated person, means to the heirs of such person as determined at the death of testator.^ '^ '^Speaking- generally, when a gift is made to a class of per- sons to take effect immediately in possession, those who con- stitute the class at the death of testator, when the will becomes operative, take unless a different intent appears from the will or from such intrinsic circumstances as may properly be taken into account."-'^ So a gift of "as many thousand dollars as I have grandchildren at my decease" specifically fixes tes- tator's death as the time for determining the class.^^ Since the class is to be determined at the death of the testator, it follows that those who have died before testator can not be counted in the class, so that the devise will inure to their heirs or representatives.^^ And members of the class born after t<^sta tor's death can not be counted in the class so as to af- fect the share of those living at testator's death, or so as to become beneficiaries themselves.^^ But, in accordance with the usual rule of construction, all unborn members of the class may be counted in such class where potentially in exist- ence at the time of testator's death, en ventre sa mere.^'^ Thus a devise to testator's "children" by his wife inures to the bene- fit of a posthumous child.^^ Where no class of beneficiaries under the will is entirely un- represented at the death of testator, those born after the death of testator and not en ventre sa mere at his death, can not take, 26 19 Johnson v. Webber, G5 Conn. Chase v. Peckham, 17 R. I. 385; 501; Rnggles v. Randall, 70 Conn. Buzby v. Roberts, 53 N. J. Eq. 506, 44; Kellett v. Shepard, 139 111. 1895 ; 32 Atl. 9. 433; Tucker's Will, 63 Vt. 104. 23 Hill v. Harding, Ky. (1892), 17 20 Howland v. Slade, 155 Mass. S. W. 437 ; Sevier v. Douglass, 44 415, citing Worcester v. Worees- La. Ann. 605; In re Smith, 131 N. ter, 101 Mass. 128: Merriam v. Si- Y. 239. monds, 121 Mass. 198; Campbell v. 24 Gulp v. Lee, 109 N. C. 675; Rawden, 18 N. Y. 412: Baldwin v. Clark v. Benton, 124 N. C. 197; Rogers, 3 De G. M. & G. 649. Evans v. Opperman, 76 Tex. 293. 21 Richardson v. Willis, 163 Mass. 25 Clark v. Benton, 124 N. C. 130; Chapin v. Parker, 157 Mass. 197. 63. 26 Parker v. Churchill, 104 Ga. '22Hoadly V. Wood, 71 Conn. 452: 122: Martin v. Trustees. 98 Ga. Striewig's Estate, 169 Pa. St. 61; 320: Wood v. McGuire, 15 Ga. 202. 630 LAW OF WILLS. But a gift to "mj daughter-in-law (A) and her children," has been held to pass an estate to all the children of A by her husband, who was testator's son, whether such children were born before or after the death of the testator,^'^ §546. Where time for determining' members of class is fixed by will. But the rule that the members of the class are to be deter- mined at the day of the death of testator is not, by any means, an unyielding rule.^^ The will may specifically fix some time other than that of the death of testator as the time at which the members of the class are to be determined. It not infrequently happens that the time thus fixed by will is the date of the ex- ecution of the will.^^ Thus a devise to .the members of a class living at the date of the execution of the will fixes such date as the time for determining the members.^*^ The same result is sometimes obtained by providing that if any member of a class die before testator the share of such member shall pass to his children.^^ The time fixed by will as the time at which the members of a class are to be determined may also be some time after the death of the testator, as long as this time fixed is not so remoie as to violate the rule against the perpetuities.^^ This time may be either indicated by the express language of the will or may be inferred from the general nature of its provisions. Thus where a particular estate is devised by will with the remainder to the "living children,"^^ or to issue "then living," ^^ the 27 Lynn v. Hall, 101 Kv. 738, dis- so /^ re Wood (1894), 3 Ch. 381. tinguishing Williams v. Duncan, 92 si /^ re Musther (C. A. ), 43 Ch. Ky. 125, as a case in which testa- D. 569; Palmer v. Dunham, tor's intention to exclude after- 125 N. Y. 68 ; Morrison's Estate, born children was clear. 139 Pa. State, 306. 28 Swenson's Estate, 55 Minn. 30 ; 32 See Sec. 625, et seq. 56 N. W. 1115. 33Larby v. Crewson, 21 Ont. 29 In re Wood (1894), 3 Ch. 93; Blass v. Helms. 93 Tenn. 166; 381: Tn re Musther, 43 Ch. D. 569; Inge v. .Jones. 109 Ala. 175. Palmer v. Dunham, 125 N. Y. 68; 34 Patchen v. Patchen. 121 N. Y. Morrison's Estate, 139 Pa. St. 306; 432: Madison v. Larmon, 170 111. Dunn V. Cory, 56 N. J. Eq. 507. 65; Heard v. Eead, 169 Mass. 216; LAW OF WILLS. 631 class is to be determined not as of the testator's death, but as it existed at the expiration of the particular estate. So where a devise is made to the "then heirs" of a person, provided that person was not living at the death of another, the heirs are to be determined as of the moment of the death of that otlier.^^ Sp in a devise at the expiration of a life estate which was given by will to testator's ne})hew "at his death to his surviving children," it was held that the class of children were to be determined as of the death of the life tenant f^ and so where a gift after the death of the particular tenant is to pass to "surviving children" or "survivors," the class is to be deter- mined as of the death of the life tenant.^'^ And where a tes- tator devised a life estate to his wife, with direction that after his death the property should be sold and the proceeds should be paid to his legal heirs in the same proportions as they would have inherited the same if testator "had died the survivor" of his wife, and had thus died intestate, it was held that the class of his legal heirs should be determined as if he had died in- testate immediately after the death of his wife.^® The use of the word "survivors" does not always, how- ever, refer to those surviving at the time of taking possession. In these cases as in many others "we have to go upon slight differences." ^^ Where the will shoAvs an intention that the descendants of deceased children shall take, and an evident in- tention of equality of distribution is manifested, the word "surviving" has been held to apply to the death of testator.^" So where a Avill manifests an intention to provide for testa- tor's grandchildren equally, it was held that the expression Wood V. Bullard, 151 Mass. 324; 7 450; Simpson v. Cherry, 34 S. Car. L. R. A. 304 ; Hemenway v. Hemen- 68 ; Selman v. Robertson, 46 S. Car. way, 171 Mass. 42; Shank v. Mills, 202 ("surviving legatees" held to 25 S. Car. 358. mean those surviving at the de- 35 Procter v. Clark, 154 Mass. feazance of a conditional fee). 45; 12 L. R. A. 721. 38 Peck v. Carlton, 154 Mass. 231; 36 Cheatham v. Gower, 94 Va. Smith v. Greene, 19 R. I. 558; 35 383; 26 S. E., 853, citing Slack v. Atl. 148. Bird, 23 N. J. Eq. 238. 39 Lee v. Welsh, 163 Mass. 312. 37 Winter's Estate, 114 Cal. 186; 4o Grimmer v. Friederich, 164 111. Button V. Pugh, 45 N. J. Eq. 426; 245; Lee v. Welsh, 103 Mass. 312 Roundtree v. Roundtree, 26 S., Car. 632 LAW OF WILLS. "any child who shall survive me" might be either rejected or construed as meaning "any child who shall live after me" where the literal interpretation would exclude a number of grandchildren born after the death of testator and whom it was the evident intention of testator to benefit.'*^ The intention of the testator to postpone the time , for determining the members of a class of beneficiaries may also be inferred from the will without any specific provision to that effect. Thus where the testator devises to the "brothers and sisters" of certain of testator's grandchildren, and it appeared from the will in a provision providing for testator's grand- children that he contemplated that a grandchild would be born to him in addition to those named in the will, it was held that such ]:)rovision would inure to the benefit of grandchild- ren born after testator's death and in existence at the death of the life tenants."*^ §547. Effect of postponement of time of distribution. — Gift to "heirs." When the testator in his will makes a provision for a de- vise to a class, and provides that the property shall be dis- tributed among such class at some fixed time after testator's death, an important question is presented in determining wheth- er the class of beneficiaries is to be ascertained at testator's death or at the time of the distribution of the gift. The authorities are not in absolute harmony on this subject. The general rules are clear and well defined. Where the class of beneficiaries is described by the word "heir," the class must be determined as of the death of the tes- tator, unless the will plainly indicates otherwise. "The word 'heir,' in its strict and technical import, applies to the person or persons appointed by law to succeed to the estate ; hence, where the word occurs in the will it will be held to apply to those who are heirs of the testator at his death, unless the intention of the testator to refer to those who shall be his lueirs at a period subsequent to his death is plainly manifest in the will. This con- struction or definition is not changed by the fact that a life 41 Bailey v. Brown, 19 R. I. fi69 ; 42 Madison v. Larmon, 170 111. 36 Atl. 581. 65. LAW OF WILLS. 633 estate may precede the bequest to the heirs at law, or by the circumstances that the bequest to the heirs is contingent on an event that may or may not happen.'"*^ But while a gift to the heirs or next of km of testator is ordinarily to be construed as calling for a determination ol the classes of testator's death, this rule is not an inflexible one The context may show that the testator intended even these classes to be determined at a subsequent time. It is held that where a devise is made for life to one of the heirs of tes- tatx^r and the remainder over is to go to the "heirs' of testator, this does not take the gift to the heirs out of the general rue, but that the class of heirs is still to be determined as of the death of the testator.^"' . But where a bequest is to a person who is the sole next ol kin or heir of the testator, with the provision that the remainder shall pass to the next of kin of testator, it has been held, where the context of the will showed clearly that the testator did not intend the remainder to pass to the life tenant, the next ol km shall be determined as of the date of the termination of the life estate.'*^ 43Kellett V. Shepard, 139 111. 433. In support of the proposition in the text, the following cases may also be cited: Bullock v. Downes, 9 H. L. Cas. 1 ; Mortimore v. Mort- imore, L. R. 4 App. Cas. 448 ; Elms- ley V. Young, 2 Myl. & K. 780; In re Ford, 72 Law. T. 5; Ruggles v. Kandall, 70 Conn. 44; Morris v. Belles, 65 Conn. 45; Abbott v. Bradstreet, 3 Allen (Mass.), 587; Minot V. Tappan, 122 Mass. 536; Dore V. Torr, 128 Mass. 38; Mi- not V. Harris, 132 Mass. 528 ; Whall V. Converse, 146 Mass. 345; Shaw V. Eckley, 169 Mass. 119; Rotch V. Rotch, 173 Mass. 125; Lawrence V. McArter, 10 Ohio. 37. 44 Minot V. Tappan, 122 Mass. 536: Stewart's Estate, 147 Pa. St. 383. In support of this proposition are: Bullock v. Downes, 9 H. L. Cas. 1 : Mortimore v. Mortimore, 40 L. J. Ch. 470, 27 N. R. 575; H. L. (E.), 4 App. Cas. 448; Elmg|ley v. Young, 2 Myl. & K. 780; Cable v. Cable, 16 Beav. 507 ; Ware v. Row- land, 2 PhiU. C. C. 635; Buzby's Appeal, 61 Pa. St. Ill; Rupp v. Eberly, 79 Pa. St. 141; Cowles v. Cowles, 53 Pa. S. 175; Brendlin- ger V. Brendlinger, 26 Pa. St. 131. 45 Lay V. Creed, 5 Hare, 580; Clapton V. Bulmer, 5 Myl. & C. 108 ; Jones V. Colbeck, 8 Ves. 38; Long V. Blackall, 3 Ves. 486; Butler v. Bushnell, 3 Myl. & K. 232; Bird V. Luckie, 8 Hare, 301: Wharton V. Barker, 4 Kay & J. 483; Bullock V. Downes, 9 H. L. Cas. 1; Morti- more V. Mortimore, L. R. 4 App. Cas. 448; Welch v. Brimmer, 169 Mass. 204 ; Sears v. Russell, 8 Gray (Mass.), 86; Hardy v. Gage, 66 N. H. 552: Pinkham v. Blair, 57 N. H. 226; Delany v. McCormack, 88 N. Y. 174. 634 LAW OF WILLS. Tims where the testatrix bequeathed all her property for the support and maintenance of her father during his life- time, with the direction that, if necessary, the whole estate shonid be used for his support, and that upon his death or remarriage the estate should pass to her next of kin, it waa held that the intention of testatrix was clear that this remain- der should not, under any circumstances, pass to her father, and that the next of kin must be determined as of his death.^® In the same will where part of the estate of testatrix was to pass to the next of kin of the husband of testatrix, it was held that this next of kin must be determined as of the same time as to the next of kin of testatrix.'*'^ 46 Fargo V. Miller, 150 Mass. 225 ; 5 L. R. A. 690. 47 Fargo V. Miller, 150 Mass. 225. In a recent Rhode Island case property was left after the terms of a life estate to "my heirs at law according to the Statute of De- scents." A son of testator was at that time domiciled in a foreign country, and as an alien could not at that time take title to real es- tate by devise. Testator died in 1829. The last life tenant died in 1890. In the meantime statutes al- lowed aliens to take by devise. In deciding whether tiie heir was to be determined as of the death of testator in 1829, or as of the death of the life tenant in 1890, the court in holding that date for fix- ing the heirs was in 1890, sa^d: "While the general rule is that the heirs of a testator are to be taken from the time of his death, yet the rule gives way to a contrary in- tent to be found in the will. As- suming, then, that the cases re- ferred to go no further than this, we think that the will in this case shows such an intent. The prop- ertv given to Charlotte or Maria is to go 'on their decease' in the sec- ond clause, and on 'both of their decease', in the fifth clause, to the heirs at law of the testator. In making such a gift his mind would naturally look forward to the time when the estate might vest in pos- session, and so the words used comport with an intent to point out the time and mode of ascertaining who the heirs will be by desig- nating a class to take as execu- tory devisees. The agreed facts also point to such an intent. When the will was made, the son William was a domiciled resident of Cuba, who, being an alien, was incapable, as our law then stood, to take by descent ; but that there can be no inference of an attempt to exclu- sion on this account, appears by the fact of a devise of real estate to him, and the fact that he, with the other children, was one of the residuary legatees in the will. Of course the testator could not foresee changes in our law in regard to alienage, but it is not improbable that he looked forward to a return of his son or his family to citizenship in this country when he or they could stand as legatees in the class which he LAW OF WILLS. §548. Effect of postponement of time of distribution.— Gift to others than "heirs." In a devise to a class described in any other way than as al- ready stated, the effect of postponing the period of distribution to some time subsequent to testator's death, is to cause such a de- vise to pass to all who are in existence at the time allowed for the distribution among such class who answer the descrip- tion in the will.'*^ "Wherever a personal estate or interest is carved out with a gift over to the children of a person taking that interest, or of^any other person, the limitations will embrace not only the objects living at the death of testator, but all who shall subsequently come into existence before the period of distri- bution. Such a remainder vests in the objects to whom the dis- tribution applies at the death of the testator, subject to open and let in others answering the description as they are born successively." '^^ So in a gift to one for life of the interest of a fund, and a direction that at his death the principal "is to go to his chil- designated them. Moreover, the v. Terryn, 3 T. R. 484) ; Mc.lrthur words are that the estate 'on their v. Scott, 113 U. S. 340; Baker v. decease U divided among my heirs McLeod, 79 Wis 534; Wilson v. at law' The division was to be White, 109 N. Y. 59; Taggart v. prospective, and we see no reason Murray, 53 K Y. 233 ; L Estor- Ihy the class should not also be neau v. Henqu.net, 89 Mich. 428 ; ta/en to be so. For this reason as Fitzhugh v Townsend, 59 Mk^. well as those given in the previous 427 ; Campbell v. Stokes, 142 N. opinion, we think that these words Y. 23; Evan s Estate, 155 Pa were intended to fix the time for State, ^46; Frankhn v Frankhn 91 the vesting of the estate and the as- Tenn. 119 ; Blass v^He ms, 93 Tenn. certaining of the persons to take 16G; DeWolfe v ^^dd eton, 18 R. in the possession. They .re not sub" I. 810 ; In re Allen, 151 N. Y. 243, stantially different from cases where affirming 81 Hun, 91; Goebel v. the devise is to those who shall Wolf, 113 N. Y. 405; Rmgqujst v. tne aevibe . .■ „ » Youns 112 Mo. 25 ; Sinton v. Boyd, then answer the description. loung, ii- mu. , -r, , (. DeWolf V. Middleton, 18 R. I. 19 0. S. 30; Peterson v. Beach, 6 gjQ Rec. (Ohio), 513. 48 Doe V. Sheffield, 13 East, 526: 49 Evan's Estate, 155 Pa. St 646, Phini.v V. Foster, 90 Ala. 262; Cav- citing Bower's Estate, 11 P^iiladel^ alry's Estate. 119 Cal. 406; Hovey phia, 620; Minnig v. Batdorf, 5 V. Nellis, 98 Mich. 374 (citing Doe Pa. St. 503. 636 LAW OF WILLS. (Iren if he has any," the children of such life tenant who are in existence at his death take as a class.^^ So a legacy payable to the children of A, begotten by him during his natural life, passes to A's children, whether be- gotten before or after the death of testator.^ ^ And a gift to A's children 'hereafter to be born or begotten," is construed to include those already begotten.^^ So, on the other hand, a gift to the "grandchildren," pay- able as each arrives at majority, does not include a grand- child born after testator's death and after the oldest grand- child who was living at testator's death had attained his ma- jority.^^ But where the postponement of the distribution among the beneficiaries is not to create an intermediate estate, but simply to give the executors, having power of the distriljution, a reasonable time in which to convert the property into money ; and the distribution to the class of beneficiaries will be ascer- tained as of the time of testator's death and not as of the pe- riod of distribution.^^ §549. Time of vesting taken as time for determining members of class. It has been suggested by some courts that where the inter- est does not vest until a future time, as in case of a contin- gent remainder or an executory devise, that the class should be determined at the time when such interest finally vests. This rule has been suggested even in the case of the word "heirs," and with greater insistence in the other classes."^ 50 Franklin v. Franklin, 91 Tenn. 53 Thomas v. Thomas, 149 Mo. 119. To the same effect are For- 426. • rest Oil Company v. Crawford, 77 54 Landwher's Estate, 147 Pa. Fed. 106; Knorr v. Millard, 57 State, 121. Mich. 265; Hovey v. Nellis, 98 Mich. ss Bullock v. Downes, 9 H. L. Cas. 374. 1 ; Mortimore v. Mortimore, L. R. 4 51 Parker v. Leach, 66 N. H. 416; App. Cas. 448: Coltsman v. Colts- Benton v. Benton, 66 N. H. 169; man. L. R. 3 H. L. 121; Doe v. Ordway V. Dow, 55 N. H. 11. Frost, 3 B. & Aid. 546: Doe v. 52 Parker v. Leach, 66 N. H. 416. Pratt, 5 B. & Aid. 731 ; Stewart's Estate, 187 Pa. St. 383: Ken- LAW OF WILLS. 637 So a devise to one for life and at his "decease" to his chil- dren, was hold to include all his children living at testator's death, whether alive at the death of the life tenant or not.^*^ A gift to A for life and on his death to go to his issue ''per stirpes" was held, to be a gift to the issue in existence at A'9 death.^"^ This distinction possesses the advantage of simplicity and accuracy of statement, but is not acquiesced in by sufficient ju- risdictions to justify the statement of it as a general rule. §550. Lapse in case of gift to a class. — Common law rule. When a member of a class of beneficiaries dies before the time fixed under the will for determining the members of that class, the common-law rule applying to gifts to classes generally was that the children and descendants of such deceased mem- ber could not take in place of their ancestor.^^ This rule is, of course, subject to modification where testator, in his will, specifically provides that upon the death of a member of a class before the time of the distribution leaving descendants, the share of such member shall pass to such descendants.^^ yon, Petitioner, 17 R. I. 149; De in trust for the parent for life, Wolfe V. Middleton, 18 R. I. 810, subject to open and let in after- citing Goodright v. Searle, 2 Wils. born children, and to be divested by 29 ; Cain v. Teare, 7 Jur. 567 ; their death before their parents." Tucker's Will, 63 Vt. 104. Campbell v. Stokes, 142 N. Y. 23. 56 "These words are construed to ss Wilhelm v. Calder, 102 lo. 242 ; refer to the time of payment or pos- 71 N. W. 214; Ashhurst v. Potter, session, and do not postpone the 53 N. J. Eq. 608; In re Truslow, moment when the gift shall oper- 140 X. Y. 599, modifying 71 Hun, ate." Lombard v. Willis, 147 Mass. 77; Gammell v. Ernst, 19 R. I. 13, citing and following Shattuck 292: 33 Atl. 222; Roundtree v. V. Stedman, 2 Pick. 468: Childs v. Roundtree, 26 S. C. 450. Nor does Russell, 11 Met. 16; Wright v. the husband or wife of such de- Shaw, 5 Cush. 56 ; Fay v. Sylves- ceased beneficiary take any interest ter, 2 Gray, 171; Bowditch v. An- in such property. Hardin v. Ar- drew, 8 Allen, 339; Pike v. Steph- teburg (Ky.), 46, 718; 20 Ky. L. R. enson, 99 Mass. 188. 486. 57 "It is plain that upon settled 59 Crozier v. Cundall, 99 Ky. rules of construction, the issue of 202 ; Hopkins v. Keazer, 89 Me. any child of the testator living at 347; Lee v. Welch, 163 Mass. 312; his death, took under the will a Bragg v. Carter, 171 Mass. 324; vested remainder in the share held Dawson v. Shaefer, 52 N. J. Eq, 341 ; 638 LAW OF WILLS. §551. Lapse in case of gift to a class. — Modern statutory rule. This rule is further modified by statutes which have been passed in different jurisdictions, providing that if certain named beneficiaries die before testator, or before their in- tersts vest, that their descendants shall take the share to which their ancestor would have been entitled.®^ These statutes ap- ply generally when the beneficiary is a descendant or blood- relative of testator.^^ In some states it has been held that these statutes do not affect the pre-existing rule upon the subject of gifts to classes.®^ The reason which the courts give for this rule is that in- dicated by the preceding note, that is, that the statutes against lapse apply only where something is given by will to one who dies before testator, and, therefore, have no application to gifts to a class where the gift is in legal effect only to the mem- bers of the class in existence at a designated time. Where the class contains only one member, it is an interesting question whether a gift, which in terms is a gift to a class, will lapse by reason of the death of the one member of the class before the death of testator. Upon this point the authorities are at variance. In an English case testator gave property to the child of A, or to his children if there should be more than one. At the time of making the will A had but one child, and never had more than one. This child died before testator, affirmed Shaefer v Dawson, 53 N. J E. 238, 341 ; Van Houten v. Penning ton, 4 Halst. Ch. 272, 745; Wurt v, Page, 4 C. E. Greene, 365; Casca den's Estate, 153 Pa. St. 170; Denlinger's Estate, 170 Pa. St 104; Kelley v. Kelley, 182 Pa. St 131; Haszard v. Haszard, 19 R. I 210; Springer v. Congleton, 30 Ga. 976; Davie v. Wynn, 80 Ga. 673; Martin v. Trustees of Mercer Uni- versity, 98 Ga. 320 (decided by a divided court). "The effect of the devise . . . was to give to children living at the death (of testator) and. therefore. 374; ,34 Atl. 150; R. I. Hospital there was no gift to Mrs. F., and Co. v. Peckham, 20 R. I. 332. the statute only applies to the rep- 60 See See. 742, et seq. resentatives of children or issue to 61 Bradley's Estate, 166 Pa. St. whom something is given." In re 300; Swallow v. Swallow, 166 Mass. Harvey, Harvey v. Gillow (1893), 1 241. And see Sec. 743. Ch. 567, quoting Olney v. Bates, 3 62 /n re Harvey (1893). 1 Ch. Drew, 319. 567 ; Browne v. Hammond, Johns. LAW OF WILLS. 639 leaving issue. The co„rt held that the statnt. preventing lapse had no appUeation, since this was a gift to a class and no mem- ber of the class was in existence at the time fixed for determm- ing it. In 'a Georgia case testator gave property to the "children of A " At the death of testator A ^^as dead and her only child .vas dead, leaving surviving two children ^.^ --^f/ f J^ ^vas held that the statute against lapse applied and that such children of the deceased child took.^"* In most states these statutes are held to apply to gift, to classes as well as to gifts to individuals.- "It makes no dif- ference whether the hequest is such to a relative by name or .vhether he is designated in the will only by his relation- '^ These statutes preventing a lapse in cases of a gift to a class are merely vrima facie rules, -versing the rules of the common law, but subject to be contradicted by the contex of the will. Thus a gift specifically to those of a certain clas. .'Svho may then be living," or any similar expression, is held to prevent the application of the statute. Under such gift, the issue of deceased members of a class do not take. 63 In re Harvey (1893) , 1 Ch. 567 €4 Cheney v. Selnian, 71 Ga. 384. esHowland v. Slade, 155 Mass. 415; In re Stockbridge, 145 Mass. 517; Moore v. Weaver, 16 Gray, 305- Bray v. Piillen, 84 Me. 185; Strong V. Smith, 84 Mich. 567 ; Par- ker vl Leach, 66 N. H. 416; Benton V Benton, 66 N. H. 169: Edgerly V. Barker, 66 N. H. 434; 28 L. R. A. C88; Mather v. Copeland, 5 Ohio X. P. 151; Woolley v. Paxson, 46 S. 307 ; 7 Ohio Dec. 257 ; Brad- ley's Estate, 166 Pa. St. 300; Moore V. Dimond, 5 R. I. 121: Jones v. Hunt, 96 Tenn. 369 ; Wildberger v. Cheeck, 94 Va. 517, 1897; 27 S. E. 441. 66 Bray v. Pullen, 84 Me. 185. "Its effect, however, will be modi- fied by the Pub. Sts. C. 127, Sec. 23, which provide that where a leg- acy is given to a child or other re- lation of the testator, and such child or other relative dies before the testator, leaving issue surviving the testator, such issue shall take leg- acy unless a different intent is man- ifested by the will. It does not matter, as has been held, that such child or other relative is treated as one of a class by the testator; the issue will still take the legacy which the deceased person would have taken had he survived the tes- tator." Howland v. Slade, 155 Mass. 415. 67Bigelow v. Clap, 166 Mass. 88; Bragg v. Carter, 171 Mass. 324 : Almy v. Jones, 17 R. I. 265 ; 12 L. R. A. 414. 040 LAW OF WILLS. A provision that a legacy should be paid to "their or each of their heirs" in case the beneficiary should die before the testator, gives a legacy of the amount specified to be divided among all the heirs of such person, and does not give a leg- acy of such amount to each of the heirs separately.*'* The courts prefer, wherever possible, a construction which allows the issue of the deceased beneficiary to take the share which its j)arent would have taken had he lived, esi^ecially where such parent is a descendant of testator. ''^ The direction for a substitution of a deceased beneficiary may be made by the general intention of the will without any specific provision to that effect.'''*^ A special application of this principle is found in a devise to a class with a provision that if any of the class died without issue their interest shall pass to the survivor. Under such a gift -if A, one of the class, has died leaving children, and subsequently B, another of the class, dies without issue, the question is presented whether the children of A will share in the property given to B, or whether it will pass only to the surviving members of the orig- inal class. It is held in some jurisdictions that such a gift is to be divided among the surviving members of the original class to the exclusion of the children of a member previously de- ceased.'^^ Where the general intention of the will, however, is manifestly that the property disposed of is to be equally di- vided among the stocks representing members of the original class, the children of A will share in the jiroj^erty devised to B.'2 68 Ruggles V. Randall, 70 Conn. mainder man who was not of tes- 44. Cleghorn v. Scott, 80 Ga. 496, tatoi"s blood should not take aa [inferred from a direction to divide long as any of testator's blood sur- certain property "on the same prin- vived. ) eiple last provided," which direct- 7i Ashhurst v. Potter, 53 IST. J. ed a substitution of children for de- Eq. 6()S ; In re Truslow, 140 N. Y. ceased parents]. ,599, modifying 71 Hun, 77; Gam- es Soper V. Brown, 136 N. Y. 244, mell v. Ernst, 19 R. I. 292; 33 Atl. affirming 65 Hun, 155. But a gift 222: Roundtree v. Roundtree, 26 S. to the "surviving" members ov the C. 450. class is so clear as te leave no t2 Graves v. Spurr, 97 Ky. 051, room for construction. ]\Iullarky citing Wilmot v. Wilmot. 8 Ves. V. Sullivan, 136 N. Y. 227. Jr. 10, Birney v. Richardson. 5 "0 Cooper V. Cooper, 7 Houst. Del. Dana, 424 ; Harris v. Berry, 7 Bush. 488. (Inferred from an expression 113: Cummings v. Stearns, 161 of the testator's wish that the re- Mass. 506. LAW OF WILLS. 641 CHAPTER XXIV. DISTRIBUTION PER STIRPES AND PER CAPITA. §552. General principles of distribution in intestacy. A very important question that presents itself for consid- eration under the law of intestate succession, and under the law of wills alike, is the question whether distribution amonc those who are to take shall be per stirpes pr per capita. The diflference between these two clases of distribution manifests itself in two different methods: first, with reference to the de- termination of the persons who shall take ; second, with refer- ence to the share which passes to each person thus ascer- tained. First, with reference to the determination of the persons who shall take, a distribution per stirpes means that the prin- ciple of representation so applies that the heirs or represen- tatives of one previously deceased, who would have taken if alive, will take by the right of their ancestor. A distribution per capita means that no representation applies, and that the favored class is to be determined upon as it exists at the time prescribed by the law or the will, and that the heirs or represen- tatives of one previously deceased can not take, although such decedent would have taken in his own right, as a member of the favored class, had he survived. 642 LAW OF WILLS. Tke question of distribution per stirpes or per capita also affects the determination of the beneficiaries under a will in another way. Under a distribution per stirpes the children of living parents take nothing, the share which passes to that branch or stock being taken by such living parents. A gift per capita pasess to all who are included within the descrip- tion of the beneficiaries, irrespective of whether their parents are alive or not. Second, with reference to the share which the beneficiaries thus indicated are to take, the question whether the distribu- tion is per stirpes or per capita is often of great importance. A distribution per capita is an equal division of the property to be divided among the beneficiaries, each receiving the same share as each of the others, without reference to the interme- diate course of descent from the ancestor. A distribution per stirpes, on the other hand, is a distribution with reference to the intermediate course of descent from the ancestor. It is literally a distribution according to "stock." It gives the bene- ficiaries each a share in the property to be distributed, not nec- essarily equal, but the proper fraction of the fraction to which the person through whom he claims from the ancestor would have been entitled.^ 1 An elementary illustration may to those claiming through C. B's make this clear. A has two sons, two children will then divide B's B and C. B dies before A, leav- share between them, each thus re- ing two children, D and E. C also ceiving one-fourth of the original dies before A, leaving three chil- estate. C's three children will di- dren, F, G and H. On A's death divide C's share among them, each there are thus five grandchildren, thus receiving one-sixth of the orig- whom we will suppose are the bene- inal estate. This principle of dis- ficiaries of his will. If the will tribution per stirpes is, of course, calls for a distribution of the prop- capable of indefinite extension, erty per capita, each of these five Thus, if D and H had each died grandchildren will receiA^e one-fifth before A, D leaving one child and of the property. If the distribu- H two, D's one child would, on dis- tion is to be made per stirpes, the tribution per stirpes, receive one- property is first divided according fourth of the original estate, and to the stock, or immediate course H's two children would each re- of descent — that is, one-half to those ceive a twelfth of the original es- claiming through B, and one-half tate. LAW OF WILLS. ^^'^ Whether in cases of intestacy realty descends per stirpes or per capita is a question which should be considered here only so far as it afi'ects the construction of wills. It is some- times laid down as a general proposition, both at common law and under modern statutes of descent and distribution, that where the heirs are all in the' same degree of relationship to the ancestor they take per capita, but if in unequal degrees thev take per stirpes. This is without doubt correct as a broad and general proposition, but like most legal principles it has its exceptions and qualifications. Under modern statutes it is generally indicated in a clear manner by the use of such expressions' as '^or legal representatives," where the doctrine of representation applies. Where the statute provides that the property shall descend to a certain class, and omits or their legal representatives," or some similar phrase, the prin- ciple of representation does not apply.^ The same princi- ples, of course, apply to distribution of personalty under the statute. §553. Statutory distribution adopted in absence of testator's manifest' intention. The nature of descent and distribution under the statute is important because, unless the intention of testator is clearly 2 Clavton V. Drake, 17 0. S. provided for by the words 'or their legal representatives,' and as there "The plaintiffs, therefore, are not are no such words in this clause, entitled under the statute to share it is not easy to perceive how the in the inheritance, unless, as is words 'next of km' can be construed claimed by their counsel, they can as embracing those not next of km. be let in as the legal representatives These words describe a class of per- of the deceased grand-uncle whose sons to be ascertamed by the rules children and grandchildren they are. of law ; and, when ascertamed, the But the clause of the statute which words become as deflmte and^spe- governs the descent in this case cific as the words children or gives the estate to the next of kin 'brothers and sisters, ^^\^'' ^ without any reference to the prin- effectually exclusive of all other ciple of representation. In the prior persons. None of these words e. clauses of the same section, when vi termini, import /-epresenta ion the estate is given to 'children' or and whether that principle sha 1 be to 'brothers and sisters' the princi- applied in respect to any of them, pie of representation is expressly must depend on the express provi- 644 LAW OF WILLS. manifest in bis will, the courts construe a will by wbicli prop- erty is to be divided among a specified class as contemplating a division in analogy to the statute of descent and distribution.'^ Thus when the persons designated stand in equal degree or degrees of relationship to testator, and the devise or bequest is to enure to the benefit of all of them, the court will order a division per capita.'^ Thus a devise to the '^issue" of testatrix was held to call for an equal division among the children and grandchildren of testatrix where all the children of testatrix were living and there was no opportunity for any substitutional taking.^ While if the devisees or legatees stand in unequal degrees of relationship to testator the law favors a construction which results in a distribution pe?' stirpes among the beneficiaries.^ §554. Intention clear. — Construction of specific forms of devise. — Per capita. When the will shows a clear intention of testator of devis- ing either per capita or per stirpes, the courts give effect to such intention without reference to the statute of descents and sions of the statute. If they di- 3 Huggins v. Huggins. 72 Ga. rect the admission of 'legal rep- 825; Kelley v. Vigas, 112 111. 242: resentatives' into any class of de- Hills, v. Barnard, 152 Mass. G7 ; 9 scendants, they must, of course, be L. E. A. 211; Ferer v. Pyne, 80 X. admitted, but if they exclude rep- Y. 281 ; Gerrish v. Hinman, 8 Ore. resentatives, or are silent on the 348 : Pearce v. Rickard, 18 R. I. subject, courts have no power to 142; 19 L. R. A. 472; Lett v. enlarge the plain terms of the stat- Thompson, 36 S. Car. 38. ute, by admitting into any class * Pearce v. Rickard, 18 R. I. 142 ; those who do not come within the 19 L. R. A. 472; Hodges v. Phelps, meaning of the words descriptive 65 Vt. 303 ; 26 Atl. 625. of that class." Clayton v. Drake, s Pearce v. Rickard, 18 R. I. 142 ; 17 O. S. 367. While in this partic- 19 L. R. A. 472. ular respect the statute construed s Wright v. Bell, 18 Ont. App. in the case cited in the note has 25; Kilgore v. Kilgore, 127 Ind. since been so amended as to permit 276; Hills v. Barnard, 152 Mass. representation in case of the next 67; 9 L. R. A. 211; Lott v. Tliomp- of kin, the principle of the case son, 36 S. Car. 38. holds good in statutes where rep- resentation is not specifically pro- vided for. LAW OF WILLS. 645 distributions, since testator has in this respect full and ample power to direct the descent of his property.'^ What intention is expressed by the words used is the practical question, then, under this subject, and one which is best answered by discuss- ing the effect of the common phrases used in wills. A direction in a will that property is to be divided among the members of a specified class '^equally," is held to call for a dis- tribution per capita.^ And this rule is not altered by the fact that the income is to be divided per stirpes until the time when the "equal" division of the property is to be made.^ By the terms of a will one person may be balanced against a class. Thus a provision that an income should be "equally divided" between the widow of testator and the heirs of tes- tator's mother, was held to mean that the widow should re- ceive half the income.^ *^ The devisees take per capita and not per stirpes under a will directing an equal division "between" the testator's broth- ers and sisters and his wife's brothers and sisters.^ ^ A direction for the division of certain specified property 7 Howard v. Howard, 30 Ala. 391; McCartney v. Osburn, 118 HI. 404; West v. Rassman, 135 Ind. 278; McQueen v. Lilly, 131 Mo. 9; Bodin v. Brown, 154 N. Y. 778. sin re Stone (C. A.), (1895), 2 Ch. 196; Houghton v. Bell, 23 Can. S. C. 498; West v. Rassman, 135 Ind. 278. ("The children of these parties above named, without any regard to numbers, shall be counted as one family and equally divided among them all.") In re Bates, 159 Mass. 252 ; McQueeu v. Lilly, 131 Mo. 9 ("equal interests" given to several ) ; Johnson v. Knight, 117 N. Car. 122; Freeman V. Knight, 2 Ired. Eq. 72 ; Tuttle v. Puitt, 68 N. Car. 543; Bodin v. Brown, 154 N. Y. 778; McKelvey V. McKelvey, 43 O. S. 213; Chafee V. Maker, 17 R. I. 739; Walker v. Webster, 95 Va. 377. 9//X re Stone (C. A.), (1895), 2 Ch. 196; 12 Rep. 415. 10 Perkins v. Stearns, 103 Mass. 247. Contra, Hick's Estate, 134 Pa. St. 507, where a provision that testa- tor's property should be "equally divided between" his wife and his two daughters, was held to give one-third of his property to each. So In re Holder, 21 R. I. 48. 11 Kling V. Schnellbecker, 107 lo. 630 (distinguishing Fissel's Appeal, 27 Pa. St. 55: Young's Appeal, 83 Pa. 59 ; Bassett v. Granger, 100 Mass. 348 ; Holbrook v. Harrington, 16 Gray, 102: Congreve v. Palmer, 16 Beav. 435: Crow v. Crow, 1 Leigh, 74: Hoxton v. Griffith, 18 Gratt. 574. 646 LAW OF WILLS. between the members of a group "share and share alike" is construed as a direction to distribute j^c capita} ~ So a direc- tion to distribute an estate share and share alike, directing that testator's sister should receive a share, his stepdaughter to receive one share, and then "to each of mj nephews and nieces then living, one share," is a direction for a per capita distribution in which the nephews share individually and not as a class.-^^ §555. Per stirpes. — Substitution specifically directed. A devise to members of a class, containing the express pro- vision that if any member of such class shall die, the "issue" or "heirs" of such decedent, or his "descendants," shall take his share, is held to direct a distribution per stirpes}'^ So a devise to testator's nephews and nieces named, "in equal shares by right of representation," calls for a division per stirpes}^ §556. Per stirpes. — "Heirs." A devise to the "heirs" of a named person, whether the tes- tator or another is, ordinarily, in the absence of any expression showing a contrary intention, taken as a direction for a dis- tribution per stirpes}^ 12 Copeland v. Copeland, 64 111 App. 100; MeFatridge v. Holtz claw, 94 Ky. 352; 22 S. W. 439 Shattuck V. Balcom, 170 Mass 245; Gulp v. Lee, 109 N. C. 675 Budd V. Haines, 52 N. J. Eq. 488 29 Atl. 170; Bisson v. R. R. 143 N Y. 125; Scott's Estate, 163 Pa St. 165; Dukes v. Faulk, 37 S. C 255. isPenney's Estate, 159 Pa. St. 346. 1* Geery v. Skelding, 62 Conn. 499 ("issue" of decedent) ; Jackson V. Alsop, 67 Conn. 249; Johnson V. Bodine, 108 lo, 594; Fields v. Fields, (1893), — Ky. — ; 20 S. W. 1042 ("issue" of decedent) ; Cum- mings V. Cummings, 146 Mass. 501 : Niles v. Almy, 161 Mass. 29 ("issue" of decedent) ; Dawson v. Schaefer, 52 X. J. Eq. 341 (to "heir or heirs" of decedent) ; Wood- ward V. James, 115 X. Y. 346, Patrick's Estate, 162 Pa. St. 175 ("descendants" of decedent) ; Rhode Island Hospital Trust Company v. Harris, 20 R. I. 408. 15 Siders v. Siders, 169 Mass. 523. So Merrill v. Curtis (X. H.) 39 Atl. 973. 16 Conklin v. Davis, 63 Conn. 377; Healy v. Healy, 70 Conn. 467 (to "legal heirs") ; Jackson v. Al- sop, 67 Conn. 249 ; Richey v. John- son, 30 O. S. 288; Asliburner's Es- tate, 159 Pa. St. 545; Rowland's Estate, 151 Pa. St. 25; Forrest v Porch, 100 Tenn. 391. LAW OF WILLS. 647 And a devise to "children and heirs" of two persons named, to be divided among them "equally," was held to call for a dis- tribution per stirpes, since the word "heirs" so strongly im- plies representation that it overcomes the force of the word "children" and "equally," both of which call for a distribu- tion per capita}'^ But where the word "heirs" is 'used as descriptive of persons otherwise indicated, it does not call for a distribution per stirpes. Thus a devise to "my nephews and nieces, they being my lawful heirs," was held to indicate a distribution per capita}^ §557. Ambiguous gifts. Whether the testator, in directing a division, combines an ex- pression which indicates a division per capita with one which indicates a division per stirpes, a more difficult question arises. ^"Equally" to "HeirsJ" — Thus, a devise to the "heirs" of a designated person or persons "equally" has been held in some jurisdictions to call for a division per stirpes}^ In other jurisdictions such a form of expression is construed to call for distribution per capita?^ And a devise to be di- vided among the "heirs" of a designated person "share and share alike" is held to call for a division per capita?^ 17 Ashburner's Estate, 159 Pa. Lockart, 3 Jones Eq. 205; Johnston St. 545. V. Knight, 117 K Car. 122; McKel- is Post V. Jackson, 70 Conn. 283. vey v. McKelvey, 43 0. S. 213; isHoch's Estate, 154 Pa. St. 417 Ramsey v. Stephenson (Or.), 57 ("to bo, divided in equal shares to" Pac. 105; 56 Pac. 520. the legal heirs of testator); Tay- 21 McFatridge v. Holtzclaw, 94 lor Y. Fauver (Va.), (1898), 28 Ky. 352; 22 S. W. 439; Bisson S. E. 317 ("to my sisters or their v. R. R. 143 N. Y. 125; Scott's Es- heirs equal to all"). tate, 163 Pa. St. 165; Dukes v. 20 Best V. Farris, 21 111. App. 49 Faulk, 37 S. Car. 255. So a gift ("equally divided among my to be divided "between the heirs" of heirs") ; Kelley v. Vigas, 112 111. A calls for a division per capita. 242; 54 Am. Rep. 235; Brittain v. Record v. Fields (Mo.) 55 S. W. Carson, 46 Md. 186; Maguire v. 1021. Moore, 108 Mo. 267; Lockart v. 648 LAW OF WILLS. §558. Gift to children of two or more persons. When testator devises property to the "children" of two or more persons who are not intermarried with each other, the general rule is said to be that this calls for a distribution per capita, in the absence of distributive words, or other form of expression showing a different intent.^" Thus, a gift to the two married daughters of testatrix for life, and at their death to their children share and share alike, was held to be a gift per capita.^^ Where testatrix gave a certain fund to two granddaughters for life, and provided that upon their decease the same should "be divided and distributed equally to their children /jer capita/' two of whom were then in being, such a devise is a gift to the great-grandchildren as a class; vesting in point of right, at death of testatrix, in the then two members constituting the class, and in those after-born as soon as born.-^ But this rule is not unyielding. The form of the devise may show an intention to give per stirpes, and such expressed in- tention will be given full force and effect. This intention is often expresed by the use of distributive words,^^ A gift "to the families of my brother A's four children and to the five children of my sister B" was held to be a gift to the children of A and of B per stirpes?^ When testatrix directs the residuum of her property to be equally divided 22Bethea v. Bethea, 116 Ala. Henry v. Thomas, 118 Ind. 23, 265; Wells v. Hutton, 77 Mich. Baleom v. Haynes, 14 All. 204; Rec- 129; Budd v. Haines, 52 N. J. Eq. ord v. Fields (Mo.), 55 S. W. 1021. 488. (Gift to be divided "between" the 23 Budd V. Haines, 52 N. J, Eq. heirs of testator's two brothers); 488. Ihrie's Estate, 162 Pa. St. 369 24 Johnson v. Webber, 65 Conn. (devise to be divided "between" 501. the children of a person named and 25 Bethea v. Bethea, 116 Ala. 265 the grandchildren of her husband) ; (a devise to the children that Ashburner's Estate, 159 Pa. St. 545 "each" of testator's sons may have (to be divided between the "chil- surviving him) ; White v. Holland, dren and heirs" of testator's sons). 92 Ga. 216; 18 S. E. 17 (evi- 26 Allen's Succession, 48 La. Ann. dence of relationship of bene- 1036. ficiaries to testator admitted). LAW or WILLS. 649 "between her heirs and her husband's he.rs" it should h divided into two equal parts, giving to her heirs one half and ; her hushand's heirs one-half per sUrpes^^nA not per caprf«, since they do not all stand in the same relation to testatrix So where it is to be divided "between" the relatives of testa- tor and those of his wife.^* §559. Gift to pass as In intestacy. ^ devise to pass according to the intestate law calls for a distribution among the persons and -^f 7™P~ ^^^ the law prescribes in case of intestacy.'^'' Thus, if the widow s one I the beneficiaries, she is to receive the year's al ow- ance and the personal property which she -"'^ ™ j° case of intestacy.='« Where the will provides that certain property should pass "in equal parts" to the persons who would be entirted to i under the statute of descents and distr bu- dons it is held that the statute must be followed to ascertain X the beneficiaries are, but that a division among them must be made per capita.^^ 27Bassett v. Granger, 100 Mass. 348; Ross's Ex'r v. Kiger, 42 W. Va. 402. 2s Young's Appeal, 83 Pa. St. 59. 2'.> Schwartz's Estate, 168 Pa. St. 204. 30 Wilson V. Morris, 94 Tenn. 547. 31 Walker v. Webster, 95 Va. 377, citing Freeman v. Knight, 2 Irecl. Eq. 72; Tuttle v. Puitt, 68 N. Car. 543. 650 LAW OF WILLS. CHAPTER XXV. NATURE OF ESTATE GIVEN BY WILL. §560. Fee simple. — General common law rule. At the common law the heir was especially favored in the construction of a will, and could be disinherited only by words which disposed of testator's entire estate.^^ This general rule is still stated in this form by many courts, but in several im- portant matters its application has been entirely changed. In none is it more marked than in the rules determining what kind of an estate as to duration passes by a devise. At com- mon law it was well settled that a devise to one, it not ap- pearing from the will whether the devise meant to pass a life estate or an estate of inheritance, passed a life estate only.^^ §561. Examples of words passing a fee simple at common law. But it has always been a recognized principle of the law construction that wills were to be construed more liberally than deeds in order that the intention of testator might be carried into effect.^"* In order to pass a fee, therefore, 32 See Sec. 407; Robinson v. Os- iclis, U5 Ind. 1,34; Roy v. Rowe, 90 tendorff, 38 S. Car. 66. Ind. .54; Varney v. Stevens, 22 Me. 33 Robinson v. Randolph, 21 Fla. 331. 629; Mulvane v. Rude, 140 Ind. 3* Cleveland v. Spilman, 25 Ind. 476 : 4.5 N. E. 659 ; Korf v. Ger- 95 ; Roy v. Rowe, 90 Ind. 54. LAW OF WILLS. 651 it was not absolutely necessary to nse the technical word "heirs," though, of course, a grant to A and his heirs was the most appropriate and unmistakable method of devising a fee simple to A.^^ Thus a devise to one "forever" was held to pass a fee,=^'^ as was a devise to A "and his children forever ;"3' so a gift to A and "her heirs on ier father's side" passes a fee ;=^» so is a devise "to hold the same absolute" f"" or a devise pro- viding "this property is entirely hers and at her disposal." ^"' A devise whereby some personal charge was imposed upon the devisee, as a devise subject to the payment of specified sums to other beneficiaries, was held to show testator's inten- tion to pass a fee to such devisee, since otherwise the devise might not prove a beneficial interest.*^ So where real prop- erty was devised to one for life and then to another, it was generally held to pass a fee to such other, especially where the taker of the life estate was younger than the person to whom the devise over was made.^"^ So a devise to A of certain realty for life, remainder in part of such realty to B and C, and the residue of such realty to A to dispose of as she thinks fit at her death, gives A a fee in that part of the realty not disposed of to B and C.^^ 35 Georgia, etc., Co. v. Archer, 87 Ga. 237; Wolfer v. Hemmer, 144 111. .554; Young v. Kinkead, 101 Ky. 252 (1897), 40 S. W. 77G; Mc- Cauley v. Buekner, 87 Ky. 191; Stafford v. Martin, — Md. — , 1892; 23 Atl. 734; In re Allen, 151 N. Y. 243; Darlington v. Darlington, IGO Pa. St. G5. 36 Toman v. Dunlop, 18 Pa. St. 72. 37 Hood V. Dawson, 98 Ky. 285. 38 Johnson V. Whiton, 159 Mass. 424. 39 Anders v. Gerhard, 140 Pa. St, 153. 40 Dills V. Adams (Ky.), 43 S.W 680. 41 Ross V. Ross, 135 Ind. 367 Korf V. Gerichs, 145 Ind. 134 Donohue v. Donohue, 54 Kai;i. 136 McLellan v. Turner, 15 Me. 436 V,"ait V. Belding, 24 Pick. (Mass.) 129; Fuller v. Fuller, 84 Me. 475; Snyder v. Nesbitt, 77 Md. 576; Brooks V. Kip, 54 N. J. Eq. 462; Jackson v. Bull, 10 Johns. (N. Y.) 148. But not where the gift was expressly limited to a life estate. Koff V. Herrman, 82 Md. 339; Henry v. Pittsburg Clay Mfg. Co., 80 Fed. 485. 42 Mills V. Franklin, 128 Ind. 444; Backus V. Baltimore Pres. Assoc., 77 Md. 50; Kuykendall v. Devec- mon, 78 Md. 573; Flickinger v. Saimi, 40 0. S. 591; Boutelle v. Bank, 17 R. I. 781 ; Stead v. Man- ton, 18 R. I. 163. (But not where there was a devise over after the second life estate. Smathers v. Moody, 112 N. Car. 791; Goodrich V. Pearce, 83 Ga. 781. 43 Byrne v. Weller, 61 Ark. 366. 652 LAW OF WILLS. A gift of all of testator's "estate," "property," or some, such word, when used to describe the nature of the estate granted, passed a fee simple.'*'* But when used merely as words of description of the property devised, without any reference to the estate created, such words did not pass a fee.'** So a gift to several of certain realty, followed by a clause revoking such devise as to all but one of the devisees, was held to give such devisee a fee in the property devised.'*^ A devise of the "proceeds" of testator's real estate passes the real estate itself in fee.'*^ So a devise of the "rents and profits" of certain real estate, without any limitation, devises such real estate itself in fee.^^ A question sometimes arising in determining whether a fee simple passes or not is whether such phrases as "to A and his children," "heirs" and the like, give A a fee simple, or give A a life estate only, with remainder over to the chil- dren. This question is sometimes stated as being whether the words "children" and the like are words of limitation; that is, are words which are used to show the nature of the estate given to A, or are words of purchase ; that is, words which are used to show that a beneficial interest is devised to the "children." Testator's intention, which must, of course, be deduced from his entire will,"*^ determines the nature of the estate devised to the first taker, A. Unless modified by the context, the word "heirs" in a gift to A "his heirs or assigns forever" is a word of limitation.^^ *4 Dewey v. Morgan, 18 Pick. v. Cannon, 3 Rawle, 489 (Pa.); 295; Den v. Schenck, 8 X. J. L. 29; Drusadon v. Wilde, 63 Pa. St. 170; Morehouse v. Cotheal, 22 X. J. L. Bennett v. Robinson, 10 "Watts, 348 430; Piatt v. Sinton, 37 O. S. 353; (Pa.) : Davis v. Williams, 85 Tenn. Niles V. Gray, 12 0. S. 320; Hart 646. V. Wliite, 26 Vt. 260. 4s Baines v. Dixon, 1 Ves. 42 ; 45 Hill V. Brown (1894), App. Baker v. Scott, 62 111. 86: Earl v. Cas. 125. Rowe, 35 Me. 414; Traphagen v. 46 Marion v. Williams, 20 D. C. Levy, 45 X. J. Eq. 448; France's 20; 19 Wash. L. Rep. 532. Estate, 75 Pa. St. 220. See Sec. *"! leberwood v. Isherwood, 8 Ohio 491. C. D. 409; 16 Ohio C. C. 279, af- 49 See Sec. 462. firmed in 57 O. St. 660, citing Bow- so Jackson v. Alsop. 67 Conn, en V. Swander, 121 Ind. 175; Grain 249: Bryson v. Holbrook, 159 Mass. V. Wright, 114 N. Y. 307; Garlyle 280. LAW OF WILLS. 653 The context may show that even such a word as "heirs" is used as a word of purchase.* Thus a gift to A and B for life, the remainder "to go to their heirs forever," shows that the word "heirs" is used as a word of purchase.^^ Where the word heirs is used as a direction for a substitution as a gift to A and B "or their heirs," it is clearly intended as a word of purchase. ^^' In the case of other words, such as "children" the presump- tion is in favor of their being used as words of purchase.^ ^ This presumption determines the construction even in cases which seem at best ambiguous. Thus, a gift to A "and her children after her" was held to pass an estate to the children as purchasers.^^ The context, however, taken together with the form of dispositive words employed, may show testator's intention to use the word "children" or other similar word as a word of limitation. Thus, in a gift to A and "his children forever," "children" is used as a word of limitation, practi- cally sjTionymous with "heirs" ; ^^ and "lineage" in a gift to A and "her lineage" is similarly used.^^ The effect upon the words "heir," "children" and the like, produced by the rules known as the Rule in Shelley's Case and the rule in Wild's Case, are considered later.^^ §562. Modern statutory rule. The common law rule that only a life estate in real prop- erty would 23ass, operated in many cases to defeat the inten- * Campbell v. Noble, _ (Ala.), 52 Gilmor's Estate, 154 Pa. St. (189G); 19 So. 28; Leake v. Wat- 523. son, 60 Conn. 498 ; Ruggles v. Ran- ss .Johnson v. Webber, 63 Conn, dall, 70 Conn. 44; Kellett v. Shep- 501; Eidgeway v. Lanphear, 99 Ind. ard, 139 111. 433; 28 N. E. 751 ; Fur- 251 ; Anderson v. Anderson, 164 Pa. enes v. Severtson (la), (1898) ; 71 St. 338; Williams v. Knight, 18 R. N. W. 196; Lee v. Welch, 163 Mass 312; Lawrence v. Crane, 158 Mass 392; O'Rourke v. Beard, 151 Mass 9 ; Lincoln v. Perry, 149 Mass. 368 Piatt V. Mickle, 137 N. Y. 106 Gilmor's Estate, 154 Pa. St. 523 51 Leake v. Watson, 60 Conn. 498 I. 333. 54 Williams v. Knight, 18 R. I. 333. 55 Hood V. Dawson, 98 Ky. 285. 56 Lockett V. Lockett, 94 Ky. 289. 5T See Sees. 564 and 565 for the Rule in Shelley's Case. See Sec. So Campbell v. Xoble \ Wa.) , 567 for the Rule in Wild's Case. (1896), in So. 28. 654 LAW OF WILLS. tion of the testator, since there is no question that most tes- tators intend that a gift of a specified piece of property should carry their entire interest in it. This confusion is increased by the fact that a set of words which would carry absolute ownership, if applied to personal property alone, would carry only a life estate when applied to real property alone. Ac- cordingly, in most states, the common law rule that a devise is presumed to be for life only has been abrogated by statute, and it is commonly provided in analogy to the rule applying to personal property that a devise of lands should be con- strued to convey the entire estate of the testator in such lands, as far as he can lawfully dispose of the same, unless it clearly appears from the will that the testator meant to dispose of a smaller interest.^^ A devise to testator's wife providing that "she may will ssBowey v. Ardill, 21 Ont. 361; Potter V. Couch, 141 U. S. 296; Whorton v. Morgane, 62 Ala. 201 ; White V. White, 52 Conn. 518; Georgia, etc., Co. v. Archer, 87 Ga. 2.37; Rickner v. Kessler, 138 111. 636; Wolfer v. Hemmer, 144 111. 554; Korf v. Gerichs, 145 Ind. 134; Eoss V. Ross, 135 Ind. 367 ; Mul- vane v. Rude, 146 Ind. 476; 46 N. E. 659: Miller v. Tilton (Ky.) (1899), 49 S. W. 967; Bedford v. Bedford, 99 Ky. 273; Calmes v. Eubank, — Ky. — (1897) ; 40 S. W. 669; Young v. Kinkead, 101 Ky. 252 (1897); 40 S. W. 776; Mudd V. Mullican (Ky.) (1890), 12 S. W. 263; Fuller v. Fuller, 84 Me. 475; Kuykendall v. De- vecman, 78 Md. 537 ; Backus v. Baltimore Pres. Assoc. 77 Md. 50; Reid v. Walbach, 75 Md. 205; Johnston v. Safe Deposit & Trust Co., 79 Md. 18 ; Bentz v. Maryland Bible Soc. 86 Md. 102; Foster v. Smith, 156 Mass. 379; Simonds v. Simonds, 168 Mass. 144; 46 N. E. 421 ; Joslin v. Rhoades, 150 Mass. 301; Goodwin v. McDonald, 153 Mass. 481; Robinson v. Finch, 116 Mich. 180; Schult v. Moll, 132 N. Y. 122; Kinkele v. Wilson, 151 N. Y. 269 ; Moushand v. Rodetsky, 5 0. N. P. 256; 7 O. D. 225; Smith v. Berry, 8 Ohio, 365 ; Niles v. Gray, 12 0. S. 320; Piatt v. Sinton, 37 O. S. 353 ; Flickinger v. Saum, 40 O. S. 591; Ahl V. Bosler, 175 Pa. St. 526; Wilkinson v. Chambers, 181 Pa. St. 437 ; Snyder v. Baer, 144 Pa. St. 278: 13 L. R. A. 259: Fisher V. Wister, 154 Pa. St. 65: Hart v. Stoyer, 164 Pa. St. 523: Seitz v. Pier, 154 Pa. St. 467; Sugden v. McKenna, 147 Pa. St. 55: White V. Commonwealth, 110 Pa. St. 90; Harris v. Ih^er, 18 R. I. 540. 1894; 28 Atl. 971 : Johnston v. .Johnston, 92 Tenn. 559: 22 L. R. A. 179; May V. San Antonio, 83 Tex. 502; Gas- kins V. Hunton.92 Va. 528 : 23 S. E. 885; Dew v. Kuehn, 64 Wis. 293. This statute has no application where the will uses such technical language as "heirs and assigns." Wolfer V. Hemmer, 144 111. 554. iAW OF WILLS. 6^^ it, I mean the old homestead, to any of my children at her o4n discretion" does not under this statute show an intention to give less than a fee;«« nor does a devise to testator's son with a provision that at testator's death such son ''shall have and o^^m in his ovm name" the realty devised.^^ So where testator devised to a woman who was not his lawful wife, but who had lived with him as his wife, one-third of his real estate, describing it as "one-third, that is to say, her dower right of my estate," it was held that the reference to dower was not sufficient to show his intention to pass only a life estate, and hence the devisee took a fee;*'^ nor does a pro- vision attempting to prevent the devisee from selling the prop- erty out of the family, and providing that on the death of the devisee, intestate and without direct heirs, his part should pass to his sister, operate to reduce a devise to a life estate.*^=^ Where, in a will, several devises are made to certain de- visees "and their heirs forever," a later devise to one, omit- ting the words "his heirs forever," is, nevertheless, held under the statutory rule given to pass a fee simple ; ^^ and, on the other hand, a devise is not reduced to a life estate by the fact that a former devise to the same devisee was for life only.*'^ §563. Defeasible fees. Like other estates, a fee may be given defeasible upon con- dition subsequent. Such an estate is a fee with all the in- cidents thereof, subject to be divested upon the happening of the condition subsequent.^^ 60Ahl V. Bosler, 175 Pa. St. 526. Daix, 141 Pa. St. 505; Pierce v. 61 Korf V. Gerichs, 145 Ind. 134. Simmons, 16 R. I. 680. 62Shult V. Moll, 132 N. Y. 122; 64 Bedford v. Bedford, 99 Ivy. so Dilworthv V. Gusky. 131 Pa. St. 273; Miller v. Carlisle, - Ky. -, 343; White v. Commonwealth, 110 1890; 14 S. W. 75. p^ p^. gQ_ 65Reid V. Walbach, 75 Md. 205. 63 Fisher" V. Wister, 154 Pa. St. So Boston Safe Deposit & Trust 65 (in this case apart from the Company v. Stich, 61 Kan. 474; possible invalidity of the restraint 59 Pac. 1082. on alienation no attempt was made 66 Thorington v. Thorington, - to prevent devisee from disposing of (Ala.) -, 1896: 20 So. 407; Pate Mb property by will) Gillmer v. v. French, 122 Ind. 10: Malona v. 656 LAW OF WILLS. §564. The Rule in Shelley's Case. — Common Law. The rule of law which has become famous under the name of the Rule in Shelley's Case, though it was, no doubt, rec- ognized and established long before that decision, provided in effect that where an instrument gave a man a freehold estate, and in the same instrument the remainder was given to his "heirs," the first taker had a fee simple if the remainder was to his heirs generally, and a fee -tail if the remainder was to the heirs of his body.^^ This rule was merely the logical outgrowth of certain fixed and technical ideas of the common law. It was well settled in instruments other than wills that no word except "heirs" could create an estate of inheritance, and, conversely, that the word "heirs" created an estate of inheritance, in both cases the intention of grantor was ignored. It was inevitable, then, that a gift to one for life only, Avith a remainder over to his heirs, should be held to create a fee -simple irrespective of the intention of the testator. The origin of the rnle, however, is deeper than this, for eventnally, after some fluctuation in judicial decision,^^ it was held to apply to wills as well as deeds, though technical words have always been of less im- perative effect in wills than in deeds. Further, in wills the Rule has been applied to cases where the technical word "heirs" was not employed ; as, for instance, where "dying with- out issue" was held to import an indefinite failure of issue.^** The Rule in Shelley's Case is an example of the tendency of the law which finds manifestation in so many different Schwing (Ky.), 39 S. W. 523; Har- Pa. St. 9; Doebler's Appeal, 64 Pa. per V. Baird (Ky.), 3.5 S. W. 638; St. 9; Steiner v. Kolb, 57 Pa. St. Crozier v. Cundall (Ky.), 35 S. W. 123; Sims v. Buist, 52 S. Car. 554. 546; Redding v. Rice, 171 Pa. St. es rerrin v. Blake, 4 Burr. 2579. 301 ; Gaskins v. Hunton, 92 Va. "Whensoever tlie ancestor takes an 528 ; 23 S. E. 885. estate for life, and after a limi- 07 Shelley's Case, 1 Rep. 93; tation is made to his right heirs, Doe V. Smith, 7 T. R. 531 ; Allen v. the right heirs shall not be pur- Craft, 109 Tnd. 476; 58 Am, chasers." Coke on Littleton, Sec. Rep. 425; McFeely v. Moore, 19. To the same effect, 22 (b), is 5 Ohio, 464 ; Anders v. Gerhard, 140 Sec. 578, same author. Pa. St. 153: Guthrie's Appeal, 37 sd See Sec. 593. LAW 0¥ WILLS. ^^' forms to treat the first estate .as a fee and the interests of subsequent takers, if such interests ever accrue, as by descent rather than by purchase. Various and inconsistent reasons have been suggested lor the Kule. It has been declared that the Eule originated in the desire of the Law to make the transfer, of hmd easy and free from such restraints as would necessarily exist if the owner held a life estate only. The Taile, as it first appears, is so well set- tled that it must date back to a time when the law cared but little for ease in conveying realty. It is more probable that tlie underlying reason of the Kule was that if the ''heirs" took by descent the incidents of the feudal system, such as ward- ship, primer seisin and the like attached to the great benefit of the superior lord, an advantage which he would lose if the "heirs" took bv purchase. The Kule in Shelley's Case was not a rule of construction at common law. After a vain effort to treat it as merely a rule of construction,'^^ the courts abandoned that view, and treated it thenceforth as a rule of property. In its subse- quent application and enforcement it had, as has been re- peated again and again by the courts, nothing to do with the discovery of the intention of testator. This intention is to be ascertained and determined by the recognized rules of con- struction.'^^ . . When, by the exercise of these rules of construction, it is determined that testator's intention was to create a life estate in A, with the remainder to the heirs of A, the rule in Shel- 70 Perrin v. Blake, 4 Burr. 2579. discovering the intention." List v. ■ TiEwin- V. Barnes, 156 111. 61; Rodney, 83 Pa. St. 483. So Sheeley Allen V. Craft, 109 Ind. 476; 58 v. Neidhammer, 182 Pa. St. 163: Am Rep 425: Seeger v. Leakin, 76 King v^. Beck, 15 Ohio, 559. Hence Md 500; Turley v. Turley, 11 O. S. where the word "heirs" is evidently 173- Sheeley v. Neidhammer, 182 used as meaning "children and is Pa' St 163; Sims v. Buist, 52 S. a word of purchase, a devise to A ./" gg^ ' for life, and on his death to his """It i's " only after the intention "heirs" if any, if not, to another, has been discovered that the Rule was held to give A a life estate in Shelley's Case can be applied: only. King v. Beck, supra. it can not be used as a means of 658 LAW OF WILLS. ley's case then applies, whether testator intended that it should or not, as a rule of property, and fixes A's estate as a fee.'^^ Where the Kule in Shelley's Case is in force, a devise to A for life, and at his death "to be equally divided between the heirs of her body" gives A a fee.'^^ Where the rule is not in force such a devise gives A a life estate onlyJ^ And by analogy this rule has been applied to a bequest of a leasehold estate to A for life, and remainder to A's "bodily heirs." "^^ The Eule in Shelley's Case applies to equitable estates as well as to legalJ^ The Rule in Shelley's Case never had the effect of converting a fee tail into a fee simple.'' 77 §565. The Rule in Shdley's Case. — Modern statutes. The tendency of modern law in respect to the Rule in Shel- ley's Case is clearly to treat it, wherever possible, as a rule of construction, and not a rule of property. This change has been brought about in some states by statutes which either abolish the rule altogether or provide that it shall not apply to wills in defiance of the clear intention of the test-ator.'''* 72 Georgia, etc., Co. v. Archer, 87 vided share and share alike and to Ga. 237; Wolfer v. Hemmer, 144 their lawful heirs"). 111. 554; Ewing v. Barnes, 156 111. ^4 De Vaughn v. De Vaughn, 3 61; Hughes v. Clark, Ky. (1894), App. D. C. 50. 16 Ky. L. Reps. 41 ; 26 S. W. 187 ; " Seeger v. Leakin, 76 Md. 500. Young V. Kinkead, 101 Ky. 252; 40 For the application of the Rule in S. W. 776; Allen v. Craft, 109 Shelley's Case to gifts of personal- Ind. 476; 58 Am. Rep. 425; War- ty, see Sec. 595. ner v. Sprigg, 62 Md. 14; Crockett t 6 Armstrong v. Zane, 12 Ohio, V. Robinson, 46 N. H. 454; Cham- 287. blee V. Broughton, 120 N. C. 170; 77 Pollock v. Speidel, 27 O. S. In re Allen, 151 N. Y. 243; Grimes 86. This result, if produced at all, V. Shirk, 169 Pa. St. 74; Sheeley was caused by special statute (see V. Neidhammer, 182 Pa. St. 163; Sec. 568). At Common Law, if the 8erfass v. Serfass, 190 Pa. St. devise were to A and his heirs, A's 484 ; Cowing v. Dodge, 19 R. T. estate was a fee simple : if to A and 605 ; 35 Atl. 309 ; Simms v. Buist, the heirs of his body, A's estate was 52 S. C. 554. a fee-tail. 73 Holt V. Pickett, — Ala. — , 7s King v. Evans, 24 Can. S. C. 1896; 20 So. 432; Silva v. Hopkin- 356; Evans v. King, 21 Ont. App. son, 158 111. 386 ("to be equally di- 519; Healey v. Healey, 70 Conn. 467; Leake v. Watson, 60 Conn. LAW OF WILLS. 659 In other states the same result has been obtained by judicial decision, the courts taking the position that only so much of the English law as was applicable to the condition of affairs in this country was to be adopted by our courts, and that, as a rule of property, the Kule in Shelley's Case was suited Lo a feudal system of land ownership, and was, therefore, un- suitable for our system,'^^ Under this rule a devise to A for life, and on his death to the "heirs of his body by him begotten" does not give A a fee, but a life estate only, and his heirs take by purchase.^° This statute has no application where the intention of testator is in accord with the Kule in Shelley's Case.^^ §566. Fee tail. — General rule. A fee tail , that is, an estate of inheritance descending on the death of the owner to the heirs of his body, and not to his heirs generally, can be, of course, created as well by will as by deed. The technical words "and the heirs of his body," are, of course, sufficient to pass an estate tail by will.^" These technical words are not, however, indispensable to create an estate-tail, any words which especially show testator's inten- tion to create such an estate being sufficient. Thus, a devise 498; Trumbull v. Trumbull, 149 Zavitz v. Preston, 96 lo. 52; 64 Mass. 200; Defreese v. Lake, 109 X. W. 608. Mich. 415; Bird v. Gilliam, 121 N. so Granger v. Granger, 147 Ind. C. 326; Crawford v. Wearn, 115 N. 95; 36 L. R. A. 186. C. 540; Archer v. Brocksehmidt, 5 si Carter v. Reddish, 32 0. S. 1. Ohio N. P. 349 ; Sanborn v. Sanborn, In this case testator devised his 62 N. H. 631 ; Gilpin v. Williams, real estate to certain named chil- 25 O. S. 283; Bunnell v. Evans, dren "to have and to hold the same 26 O. S. 409; Bucklin v. Creighton, during their natural lives and to 18 R. I. 325; Wood v. Wood, 45 their heirs." Xo further provision S. Car. 590; 23 S. E. 950 (to A was made of the remainder after the for life and at her death "to such death of the children named as issue of her body" as shall then beneficiaries; and it was accord- be living). iiigly held that they took a fee, even 79 De Vaughn v. Hutchinson, 165 under the statute. U. S. 566; Granger v. Granger, 147 82 Pearsol v. Maxwell, 76 Fed. Ind. 95; 36 L. R. A. 186; Westcott 428, affirming 68 Fed. 513; Ralston V. Binford, 104 lo. 645: Kiene v. v. Truesdell, 178 Pa. St. 429; Du Ginehle, 85 lo. 312 : 52 X. W. 232 ; Pont v. Du Bose, 52 S. C. 244. (5(50 LAW OF WILLS. to X, his heirs and assigns, providing that, if he should die leaving no heirs, it should go to another, is held to create au estate-tail.^^ A devise to A ''and her issue and their heirs" pass an estate-tail to A.^^ So where words are used showing an intention to devise an estate of inheritance, but limited by o-ift over in case of dving without issue, and the phrase "without issue" is so used as to import an indefinite failure of issue, this was held to pass an estate-tail.^^ So, a gift to A and his "issue," or words of similar import, has uniformly been held to pass an estate-tail, where the context does not show an effective intent to give A a life estate only.^*^ The law, however, prefers to construe a will so as to create an estate in fee instead of an estate in fee-tail, where the language used in the will is ambiguous.^^ §567. The Rule in Wild's Case. An old and well-recognized rule, which takes its name from one of the early English cases in which it w^as recognized and applied (Wild's Case, 6 Kep. 17), is that a devise to A and his children, A at that time having no children, is equivalent in effect to a devise to A and to the heirs of his body.^* Such a form of devise, accordingly, created an estate-tail. 83Cliesebro v. Palmer, 68 Conn. Hawkins, 18 R. I. 573; Holden v. 207. Wells, 18 R. I. 802. 84Harkness v. Corning, 24 O. S. se Slater v. Dangerfield, 15 M. 416, & W. 263; Hockley v. Mawbry, 1 85 Barber v. Pittsburg, etc., Ry. Ves. Jr. 143; O'Byrne v. Feeley, Co. 166 U. S. 83; Barber v. Pitts- 61 Ga. 77; Jackson v. Jackson, 153 burg, etc., Ry. Co. 69 Fed. 501; Mass. 374; King v. Savage, 121 St. John V. Dann, 66 Conn. 402; Mass. 303: Patterson v. Madden, . Turrill v. jSTortlirop, 51 Conn. 33; 54 N. J. Eq. 714; Wistar v. Scott, Gonzales v. Barton, 45 Ind. 295; 105 Pa. St. 200. Fisk V. Keene, 35 Me. 349; Simons st Collins v. Collins, 40 0. S. V. Simons, 112 Mass. 157; Brown v. 353. Hospital, 155 Mass. 323; Patter- ss Tate v. Clark, 1 Beav. 100; son V. Madden, 54 N. J. 714; 33 Atl. Hood v. Dawson, 98 Ky. 285; Bentz 51; Lawrence v. Lawrence, 105 Pa. v. Maryland Bible Soc. 80 Md. 102: St. 335; Sheeley v. Neidhammer, Crawford v. Forest Oil Co. 77 Fed. 182 Pa. St. 163; Palethorp v. Pale- 534; Silliman v. Whitaker, 119 N. thorp, 194 Pa. St. 408: Bailey v. C. 89: Cote v. Von Bonnhorst. 41 LAW OF WILLS. 661 §568. Modern statutory rules Fee-tail changed to fee-simple. The policy of modern legislation, being opposed to restraint upon alienation generally,**^ has in most states greatly changed the nature of an estate-tail, or, to speak more exactly, has pro- vided that words, which at common law would create an es- tate-tail, would henceforth create other and different estates therein specified. The statutes are not unanimous as to what estate these words shall create, however. In some states the first taker takes a fee-simple which he may bar by a deed. Under these statutes a deed by the first taker conveying the property has practically the effect of a common recovery at the common law.^*^ §569. Modern statutory rules. — Fee-tail in first taker. Fee- simple in remainderman. In other states the first taker takes a life estate only, with a remainder in fee-simple to the person who would take at his decease. ^^ In other states the first taker takes an estate-tail ; that is, an estate of inheritance subject to dower and curtesy, but an estate whose disposition he can not control beyond his own life by deed or will,^^ with remainder in fee-simple to those who would take under the gift at his death. §570. Life estates in realty. — Created by express words. Under common law a devise was prima facie a devise for the life of the devisee, unless a contrary intention appeared in the will.^^ This rule has been changed in most jurisdic- Pa. St. 243; Blair v. Miller, 30 W. fi St. John v. Dann, GG Conn. NT. C. 486. 401; Welliver v. Jones, 16G 111. 80; 89 See Sec. — . Wood v. Kice, 103 Mo. 329 ; Kelso's 90 Slayton v. Blount, 93 Ala. 575; Estate, 69 Vt. 272; 37 Atl. 747. Granger v. Granger, 147 Ind. 95; 92 Pollock v. Speidel, 17 0. S. 36 L. R. A. 18G; Leathers v. Gray, 439; Harl^ness v. Corning, 'Zi O. 101 N. Car. 162; Silliman v. Whit- S. 416; Pollock v. Speidel, 27 O. S. akcr, 119 N. Car. 89; Bodine V. Ar- 8u: Phillips v. Herron, 55 0. S. thur, 91 Ky. 53: 34 Am. St. Rep. 478. See Sec. 560. 162; Robinson's Estate, 149 Pa. St. 93 McAleer v. Schneider, 2 App. 418; Sheeley v. Neidhammer, 182 D. C. 461. Pa St. 163. 662 LAW OF WILLS. tions, and a devise is now prima facie a devise of the entire interest of testator in the property devised, unless a contrary intention appears in the will.^^ This contrary intention may be manifested in many different ways. A devise to one to hold '^'during his life" or "for the full term of his natural life/' or by any similar expression, will pass a life estate only, unless modified by some other provision of the will.^° So a devise to one "for his life and the life of his heir" gives him a life estate, followed by an estate to the person who should be determined to be his heir at the time of his death.''*' So a devise to A "and to his children" has been held to be an estate to A for life, remainder to his children.^'^ So, where the Kule in Shelley's Case is not in force, a life estate is cre- ated by a gift to one for life, with remainder to his heirs,^^ An estate may also be created to last during the lifetime of some one other than the tenant. In wills this estate jmr auter vie, is usually created by a gift to members of a class for the life of one member.^^ Such estate may be expressly created by a gift to A for the life of B.^°*^ Where testator's intention to pass a freehold is clear from the context, the use of the word "loan" instead of "give" or 94 See Sec. 562. 257 ; Howe v. Gregg, 52 S. C. 88 ; 9=5 Smith V. Runnels, 97 lo. 55 ; Harrison v. Foote, 9 Tex. Civ. App. «5 N. W. 1002; Stivers v. Gard- 576. ner, 88 lo. 307; Everett v.Croskrey, ^^ In re Amos (1891), 3 Ch. 150. 02 lo. 333 ; Perry v. Bowman, 151 97 Crawford v. Forest Oil Co. 77 HI. 25; McGraw v. Minor (Ky.), Fed. 534. 15 S. W. 6; McConnell v. Wilcox, 98 King v. Evans, 24 Can. S. C. — Ky. — (1890); 12 S. W. 409: R. 356; Rosenau v. Childers, 111 Louisville Trust Co. v. Todd, — Ala. 214; 20 So. 95; Thomas v. Ky. — : 22 S. W. 438; Young v. Miller, 101 111. 60; Zavitz v. Morehead, 94 Ky. 608; Linde- Preston, 96 lo. 52 ; 64 N. W. 668 : nieier v. Lindemeier, 91 Ky. 264; Rice v. Moyer, 97 lo. 96; 66 N. W. Cousino V. Cousino, 86 Mich. 323; 94; Defreese v. Lake, 109 Mich. Sillcocks V. Sillcocks, 50 N. J. Eq. 415; Wood v. Wood, 45 S. Car. 25; Brook's Will (N. Car.), (1809^ 590; 23 S. E. 950. 34 S. E. 265; Hull v. Hull, 16 Ohio 99 Madison v. Larmon, 170 111. C. C. App. 688; 9 Ohio C. D. 19; 65; Coraly's Estate, 136 Pa. St. SwartK V. Gehring, 11 Ohio C. C. 153. 625; High's P:state, 136 Pa. St. 222, io« Stevenson v. Stevenson, 91 236; Reynold's Estate, 175 Pa. St. Ky. 50. LAW OF WILLS. 663 "devise" does not cut the estate given to any less estate.^ °^ A gift to A expressly for life is not cut do^vn to an estate for the life of another by a direction to the life tenant to support such other.-^"" §571. Estates for widowhood. A life estate may also be created by a devise to the widow of testator "during her widowhood" or "during the time she lives a widow" or some similar expression.^ °^ The interest conveyed by such a devise is a conditional one, since restraint upon second marriages, are enforced, and terminates either with the death or remarriage of the devisee.^*^^ A similar estate is created by a devise to a husband with a devise over upon his death or remarriage.-^ °^ §572. Life estate created by gifts over. A life estate may also be created by a gift to the first taker with remainder over to others upon his death, where such will does not clearly bestow a fee in the first. As the persons to whom the remainder over is given are usually the heirs or issue of the first tenant, the rule must be modified in such cases by limiting it to jurisdictions where the Rule in Shel- ley's Case is not in force, or to such states where the Rule in Shelley's Case is in force as have treated a failure of issue as definite rather than indefinite.^*'*^ 101 Woodley v. Findlay, 9 Ala. 509 ; Nash v. Simpson, 78 Me. 142 716; Ewing v. Standefer, 18 Ala. Beddaid v. Harrington, 124 N. C 400; Lloyd v. Rambo, 35 Ala. 709; 51; Cooper v. Cooper, 56 N. J. Eq Holt V. Pickett, 111 Ala. 362; Britt 48; Miller v. Gilbert, 144 N. Y V. Rawlings, 87 Ga. 146; Robert- G8 ; Brotznian's App. 133 Pa. St son V. Hardy, — Va. — , 1896; 478; Cooper v. Pogue, 92 Pa. St 23 S. E. 766. 254. 102 Bigelow V. Barr, 4 Ohio, 358. lo* See cases cited in preceding if>3 Evan's App. 51 Conn. 435; note. See Sec. 681. Rose V. Hale, 185 111. 378 ; Siddons los Stivers v. Gardner, 88 lo. V. Cockrell, 131 111. 653; Roberts 307. V. Roberts, 140 111. 345; 29 N. E. i"6 Terrell v. Reeves, 103 Ala. 264 ; 886; Levengood v. Hoople, 124 Ind. Rosenau v. Childers, 111 Ala. 214; 27; Fuller v. Wilbur, 170 Mass. Healey v. Eastiake, 152 111. 424; 506; Mansfield v. Mansfield, 75 Me. Turner v. Wilson, 55 111. App. 543; 664 LAW OF WILLS. jSIo set rule can be laid down for determining whether tes- tator's intention, in making a devise over after the death of the devisee to whom an estate in fee has already been given, is to restrict the interest of the first taker to a life estate or to create a fee which lacks certain necessary inci- dents. This intention must be gathered from the whole will. It seems well settled, however, that a devise of any "unex- pended part," or a devise of "whatever is left," shows that tes- tator intended the first taker to have a fee, since power of absolute alienation is recognized, although not exj^ressly con- ferred.io^ §573. Life estate created by directions to support, etc. In cases of doubt the purpose and object of testator in mak- ing a devise may be of importance, although, of course, where an intention is clearly to give a certain estate, the court will not ignore the will and create a different estate merely be- cause the court may think some other disposition better suited to the accomplishment of the purpose of testator than the one actually made.^^^ Accordingly, where an estate is given to one in such terms as to make its duration doubtful, a pro- vision showing that the devise was intended for the support Eubank v. Smiley,130 Ind.393 ("to 362; Anderson v. Anderson, 164 Pa. do with and dispose of after my St. 338; Peirce v. Hubbard, 152 decease as slie thinks best"; at her Pa. St. 18; Nes v. Kamsey, 155 Pa. death the real estate to be "equal- St. 628; O'Eourke v. Sherwin, 156 ]y divided among my heirs") ; Wil- Pa. St. 285; Gadsden v. Desportes, liams V. Dvmcan, — Ky. — ; 17 39 S. C. 131 ; Dwight v. Eastman, 62 S. W. 330; Adams v. Adams, Ky. Vt. 398; Robinson v. Robinson, 89 (1898); 47 S. W. 335; Hopkins v. Va. 910; Allen v. Boomer, 82 Wis, Keazer, 89 Me. 347; Rodney v. 364; Jones v. Jones, 66 Wis. 310; Landau, 104 Mo. 251 ; Hull v. Hull, Littlewoad's Will, 96 Wis. 608 ; 16 Ohio C. C. App. 688; 9 Ohio 71 X. W. 1047. C. D. 19; Wood v. Wood, 45 S. Car. io7 Howard v. Carusi, 109 U. S. 590; Downes v. Long, 79 Md. 382; 725; Burleigh v. Clough, 52 X. H. Eldred v. Shaw, 112 Mich. 237; 267; Bentz v. Fabian, 54 X. J. Eq. Schorr v. Carter, 120 Mo. 409: 615; Wolfer v. Hammer, 114 111. Dimning v. Burden, 114 N. C. 554. 33; Lewis v. Bryce, 187 Pa. St. los See Sec. 460. LAW OF WILLS. 665 of the beneficiary during liig life may determine that the estate given was only a life interest.^ ^^ On the other hand, a gift to testator's widow, with power to manage the jiroperty so as to educate the children during her lifetime or widowhood, gives her an estate for life or widowhood, without reference -to the time at which the chil- dren come of age.^^^ So, where testator provided in his will that certain land should he "loaned" to his wife in lieu of dower, it was held that such expression clearly showed that he intended her to have only a life interest.-^ ^^ The intention to create a life estate only is especially clear where there is a gift over to another upon the death of the person for whose support the property is said in the wdll to be devised. Such form of devise is always held to pass a life estate only.-^^^ §574. Language restricting a fee to a life estate. Since a will is to be construed as a whole, and effect given to every part of it where possible, and in case of irreconcilable conflict the last clause is to prevail, it follows that it is pos- sible, by subsequent words in a will, to reduce a fee previously given to a life estate.^ ^^ Thus a provision "I devise and be- queath to my wife certain property ; at her death it goes to her daughter" shows that testator's wife is to receive only a life-estate.^ ^^ So a gift to A, apparently in fee, followed 109 Fields v. Bush, 94 Ga. 664; rie's App. 132 Pa. St. 157; Pres. Perkins v. Stearns, 163 Mass. 247 ; Board of Foi-eign Missions v. Gulp, Smathers v. Moody, 112 N. C. 791; 151 Pa. St. 467; Taylor v. Bell, Hays V. Davis, 105 N. C. 482; Tay- 158 Pa. St. 651; Patton v. Church, lor V. Bell, 158 Pa. St. 651 ; Patton 168 Pa. St. 321. V. Church, 168 Pa. St. 321 ("for us Imas v. Neidt, 101 lo. 348; a family home during widowhood"). Wolfer v. Hemmer, 144 111. 554; 28 110 Fields v. Bush, 94 Ga. 664. N. E. 806; Lomax v. Shinn, 162 iiiBritt V. Rawlings, 87 Ga. 146. 111. 124; Sheet's Estate, 52 Pa. St. 112 Weaver v. Weaver, — Ky. — 257 ; Pennock's Estate, 20 Pa. St. (1892); IS S. W. 228; Brand v. 268; Gaskins v. Hunton, 92 Va. Rhodes, — Ky. — (1895); 30 S. 528; Stark V. Lipscomb, 29 Gratt. W. 597; Frank v. Unz, 91 Ky. (Va.) 3^; Haymond v. Jones, 33 621; Ladd v. Chase, 155 Mass. 417; Gratt. (Va.), 317. Rose V. Eaton, 77 Mich. 247 ; Barnes n* Rice v. Moyer, 97 lo. 96; 66 V. Marshall, 102 Mich. 248; Smath- N. W. 94. ers V. Moody, 112 N. C. 791; Mazu- 666 LAW OF WILLS. by a gift to A which can apply only to the same property, of such property for life, cuts A's interest down to a life estate.-^ ^^ A gift to A of certain projDerty "in fee-simple forever, that is to say that A shall have all the benefits therefrom until the expiration of her life, at which time my son Anton shall be the only heir of real and personal estate what may be left," was held to cut down the fee to a life estate.-^ ^^ An estate in fee given to testator's widow is reduced to a life estate with a possibility of a merger in a fee, in case the wi- dow survives her son, by a subsequent provision that upon the death of either the son or the widow the survivor should have the entire property.-^ ^" However, language which cuts down an estate in fee to a less estate must be as clear and decisive as the words by which the estate in fee was given in the first 'instance.-^ •'^ Thus a de- vise in fee is not reduced to a life estate by a subsequent pro- vision that only a life estate shall pass in "my personal estate "and whatever belonging to m© at my death whatsoever and wheresoever of what nature, kind and quality, soever may be;" ^^^ nor is a fee cut down to a life estate by a provision that the devisee shall have "the sole control" of the property de- vised during his lifetime.-^ ^"^ And a devise to one, and in the event of her death to other named devisees, was held to pass a fee and not a life estate where the evidence disclosed that the first beneficiary was at the point of death at the time the will was exe<3uted. In such a case the devise over was held to iisLomax v. Shinn, 162 111. 124. Bull. 313: Hoeveler v. Hume, 138 116 Siegw-ald v. Sieg^vald, 37 111. Pa. St. 442 ; Keating v. McAdoo, 180 430. Pa. St. 5; Oyster v. Orris, 191 Pa. 117 Littlewood's Will, 96 Wis. St. 606; Kimball's Will, 20 R. I. 608; Gaskins v. Hunton, 92 Va. 528. 619; 20 R. I. (Part 3), 224; Teese 118 Pratt V. Shepard, etc., Hospit- v. Kyle, 96 Va. 387; Stowell v. al, 88 Md. 610; Jones v Bacon, 68 Hastings, 59 Vt. 494; 59 Am. Rep. Me. 34; 28 Am. Rep. 1; Gifford v. 748; Haymond v. Jones, 33 Gratt. Choate, 100 Mass. 343; Carter v. (Va.) 317. Gray (N. ,T.), 43 Atl. 711; Ban- na Banzer v. Banzer 156 N. Y. zer V. Banzer, 156 N. Y. 429; Col- 429. lins V. Collins, 40 O. S.*353; Pen- 120 Snyder v. Baer, 144 Pa. St. dleton V. Bowler, 27 Weekly Law 278; 13 L. R. A. 359. > 667 X.AW OF WILLS. be conditioned npon tl.e deatli of the beneficiary during the lifetime of testator. " .• „. Where testator devises realty to one, with suggestions a. to its ultimate disposition by devisee, which do not amount to 1 precatory trust, the devisee takes a fee-simple So :;::L L certlm real estate devised to A "shall>e for their use and support during tlieir natural lives -^^ '^ - death shall descend to their children, if any if no children, Zl to descend to the brothers and sisters and their children, • J? 1 23 was held to give a tee. . . , So a -ift to A "in fee," followed by a provision that it A should die without issue "the estate .... above given for life shall go to such persons as it would go by law if they had an estate in fee and should die intestate,' gives A a fee Where the words are mandatory and not precatory, however, the estate given may be cut down to a life estate. - 8575. Effect of conferring power to dispose of property. o It not infrequently happens that testator confers either special or limited powers of disposing of property upon one who has an estate in such property. Some interesting ques- tions are presented as to what effect conferring such pow has upon duration of the estate given by the will. Where the estate given by the will is clearly a f-'/fis esta e is no cut down to a life estate or any less interest by the fact that .,.G,ee„-s Estate, 140 Pa. St. - Potts v. ^^J'^nl't-Kr -, 513. So Hilger v. Uolle, r^y. > ''';.. Rogers v. Winldepleck, 14.3 1896; 37 S. W. 492. "= . i +^ A 124 Briscoe v. Briscoe, — Ky. — , Ind. 3-3 (. gift of property to A "nsc "subject to a division among afor - 1**;?; =^\°- ™o,b,,,„_ 83 Md. 198 said heirs, at her death, ,n accord- ;-^^''"" ^ ^ ^ ^ ^i„,. T r';^''''^?otr "terd r;;eT ionntat^e^-r,! arran'.e his af- ?;,t 'C>.r, Metr,ade. fairs that at his .^eath whatever between certain persons). Bellas's O. S. 4bl. Estate, 176 Pa. St. 122 : Heck's Es- tate, no Pa. St. 232. 668 LAW OF WILLS. testator, out of abundant caution, has thought it necessary to give specific power of disposition to the tenant.-^ ^^ And where the testator's intention to give a fee clearly appears upon the will, his attempt to direct the course of descent upon the death of the first taker is repugnant to the nature of the estate and void.^^^ Where a will is so drawn as to leave it doubtful whether a life estate or a fee simple was intended to be conveyed, the addition of powers of alienation and disposition of the property devised may be very useful in determining testator's intent. It is not safe, however, to lay down the general rule that the addition of these powers is always conclusive that the estate created is a fee. If the will shows that the testator, in enumerating the powers, was describing the estate, and if the powers thus enumerated constitute substantially the incidents 'of absolute ownership, the estate will be held to be a fee.^^* So a gift of an am- biguous estate, coupled with a power of absolute disposal, passes the fee.^^^ On the other hand, if the will is drawn so as to show that testator intended, in his enumeration of powers, to add to the 126 Xew Eng. Mortgage Security bury, 144 Mass. 542; Pratt v. Doug- Co. V. Buice, 98 Ga. 795; Veeder v. lass, 38 N. J. Eq. 516; Rodenfels Meader. 157 Mass. 413; Forbes v. v. Schumann, 45 N. J. Eq. 383; Mc- Darling, 94 Mich. 621; Cressler's Clellaii v. Larchar, 45 N. J. Eq. 17; Estate, 161 Pa. St. 427; Good v, Dodson v. Sevans, 52 N. J.- Eq. 611 ; Fichthorn, 144 Pa. St. 287 ; Brad- Contine v Brown, 17 Vr. 599 ; Bor- ley V. Carnes, 94 Tenn. 27. den v. Downey, 6 Vr. 74: 1 Vr. 460; 127 Bradley v. Carnes, 94 Tenn. Dutch Church v. Snock, Sax. 148 ; 27. See Sec. 576: Such as was Annin v. Vandoren, 14 N. J. Eq. an attempt by testator to compel 135; Sharp v. Humphreys, 1 Harr. the devisee in fee, to make a spe- 25 ; Armstrong v. Kent, 1 Zab. 509 ; cific disposition of the property de- 2 Hal. Ch. 559. vised, by such devisee's will. Good 129 Snyder v. Baer, 144 Pa. St. V. Fichthorn, 144 Pa. St. 287. 278; 13 L. R. A. 359 (a gift to A 128 Brandt v. Virginia Coal Co. with "power to dispose of the same 93 U. S. 326: Elyton Land Co. v. by bequeath, or as she directs"): McElrath, 53 Fed. 763; Peckham v. Kieffel v. Keppler, 173 Pa. St. 181. Lego, 57 Conn. 553; Glover v. Still- son, 56 Conn. 316; Welsh v. Wood- LAW OF WILLS. 669 estate already devised, and if the exercise of all these powers is necessary to absolute ownership, it will then be held that he did not intend to pass a fee simple.^ ^° §576. Gift of life estate with power to dispose of remainder. — When held life estate. If testator devises an estate which is clearly a life estate, and adds to such devise limited powers of disposition and alienation, the authorities are nearly unanimous in holding that such a power of disposition does not enlarge the life es- tate into a fee, but that the estate created is exactly what it purports to be; that is to say, a life interest with power to testator under certain conditions and in certain methods to dispose of the fee.^^^ The limitation upon the power of disposition, in most of the cases cited in the preceding note, consists in a restriction 130 rellizzaro v. Reppert, 83 la. 497; Robeson v. Sliotwell, 55 N. J. Eq. 318; Stableton v. Ellison, 21 O. S. .527. 131 Mansfield v. Shelton, G7 Conn. 390; Hull V. Holloway, 58 Conn. 210; Peckham v. Lego, 57 Conn. 553; 7 L. R. A. 419; Wetter v. Walker, 62 Ga. 142; Rusk v. Zuck, 147 Ind. 388; Rowley v. Sanns. 141 Ind. 179; Proctor's Estate, 95 To. 172; Stumpenliousen's Estate, 108 To. 555 ; Jones v. Jones, 93 Ky. 532 ; McCallister v. Bethel (Ky.), 29 S. W. 745; 16 Ky. L. Rep. 774; Mills V. Bailey, 88 Md. 320; Collins v. Wickwire, 162 Mass. 143; Chase v. Ladd, 153 Mass. 126; Glover v. Reid. 80 Mich. 228; Gadd v. Stoner, 113 Mich. 689; Jones v. Deming, 91 Mich. 481; Greffet v. Willman, 114 Mo. 106; Jackson v. Robins, 16 Johns (K Y.), 537 (one of the leading American cases on this sub- ject) ; McClure's Will, 136 K Y. 238; Swarthout v. Ranier, 143 N. Y. 499 ; Langley v. Tilton, 67 N. H. 88; Corey v. Corey, 37 N. J. Eq. 198; Stephens v. Flower, 46 N. J. Eq. 340 ; Bradway v. Holmes, 50 N. J. Eq. 311; Hensler v. Senfert, 52 N. J. Eq. 754; Robeson v. Shot- well, 55 N. J. Eq. 318, affirmed 55 N. J. Eq. 824; Borden v. Downey, 6 Vr. (N. J.), 74; 7 Vr. (N. J.), 460; Wooster v. Cooper, 53 jST. J. Eq. 682; 33 Atl. 1050; Donley V. Shields, 14 Ohio, 359; Stableton V. Ellison, 21 0. S. 527 Hinkle's Appeal, 116 Pa. St. 490: Machem- er's Estate, 140 Pa. St. 544; Yet- ter's Estate, 160 Pa. St. 506: Rhode Island, etc., Trust Co. v. Commer- cial National Bank, 14 R. I. 625 In re Tilton (R. I.), 44 Atl. 223 Bradley v. Westcott, 13 Ves. 452 Parks V. American, etc., Miss. Soc. 62 Vt. 19: Miller v. Potterfield, 86 Va. 876 ; Cresap v. Cresap, 34 W. Va. 310; Derse v. Derse, 103 Wis. 113. 670 LAW OF WJLLS. to sell only so much of the property devised as may be neces- sary for the support and maintenance of the life tenant.^ ^- Under such a devise the life tenant can not dispose of the property by will unless this power is especially conferred upon him and at his death it will not descend to his heirs.^^^ He can use only so much of such property as is necessary for his reasonable support and maintenance, and he will not be allowed to waste or squander the estate.^ ^'^ And if the life tenant should deed the property fraudulently and gratuitously the persons entitled under the will to what is left of the es- tate at the death of the life tenant may maintain a suit to compel a conveyance of the property from the grantee to themselves.-*^^ A power of sale intended to be exercised for the support of the widow and children does not authorize the donee of the power to transfer the property to some of the children to the exclusion of others.-*"^^ The power of appointment can not extend a life estate into a fee if limited in any other manner,^^'^ as where the right to sell is limited to a right to sell with the consent of some other person ;^^^ or where power to sell is given in order to pro- vide for reinvestment of the proceeds.-^ ^^ Where the testator devises land for life, and confers upon the life tenant an absolute and unlimited power of disposition of the property thus devised, there is very serious conflict of 132 Chase v. Ladd, 153 Mass. 126; ise Huston v. Craighead, 23 O. S. Bradway v. Holmes, 50 X. J. Eq. 198; Cassidy w HjTiton, 44 O. S. 311; McGavock v. Pugsley, 12 530; Johnson v. Johnson, 51 0. S. Heiss. 689; Poole v. Poole, 10 Lea. 446. 486; Downing v. Johnson, 5 Cold. i37 Hensler v, Senfert, 52 X. J. 229; Parks v. American, etc., Miss. Eq. 754. Soc. 62 Vt. 19; Cresap V. Cresap, 34 iss Greffet v. \Yillman, 114 Mo. W. Va. 310, and other cases cited 106; McClure's Will, 136 N. Y. in the preceding note. 238 ; Deadrick v. Armour, 10 Hum. 133 See cases cited in preceding 588. notes. 130 ]Machemer's Estate, 140 Pa. 134 Glover v. Reid, 80 Mich. 228. St. 544. 135 Johnston v. .Johnston, 51 0. St. 446; Shibla v. Ely, 2 Halst. (X. J. Eq.), 181. LAW OF WILLS. 671 authority, caused in part by peculiarities of statute law in some states, as to whether such a devise gives a life estate with power of disposition, or a fee-simple. There can be no question that the real intent of testator in such^ cases is merely to give a life interest, power of disposition be- ing added, generally, to provide for the maintenance of life tenant, but no restriction of any sort being imposed upon the method of disposition. The weight of authority upon this point is that such a devise gives only a life estate.^ ''^ If the life tenant does not exercise the power thus conferred by will it passes to the persons designated by the will as remainder- men after the life estate}''^ If the life tenant exercises his power of disposing of the property in the manner authorized 140 Smith V. Bell, 6 Pet. U. S. 68 ; Giles v. Little, 104 U. S. 291 ; Roberts v. Lewis, 153 U. S. 367 ; Douglass V. Sharp, 52 Ark. 113; Patty V. Goolsby, 51 Ark. 61 ; Morf- few V. Ey. Co., 107 Cal. 587 ; Mans- field V. Shelton, 67 Conn. 390 ; Wil- son V. Wright, 91 Ga. 774; In re Proctor, 95 lo. 172; Lomaxv. Shinn, 162 111. 124; Skinner v. McDowell, 169 111. 365; Wolfer v. Hemmer, 144 111. 554; 28 N. E. 806; Wiley V. Gregory, 135 Ind. 647; Jenkins v. Compton, 123 Ind. 117; Rusk V. Zuck, 147 Ind. 388; 46 N. E. 674; Bowser v. Matler, 137 Ind. 649; 137 Ind. 653; Crew v. Dickson, 129 Ind. 85 ; Green v. Hew- itt, ,97 111. 113; Ernst v. Foster, 58 Kan. 438 ; Graham v. Botner, — Ky. — (1896); 37 S. W. 583; Jones V. Jones, 93 Ky. 532; Payne v. Johnston, 95 Ky. 175; McCullough V. Anderson, — Ky. — (1890) ; 7 L. R. A. 836; 13 S. W. 353; Loeb V. Struck (Ky.) , 42 S. W. 401 ; Degman v. Degman ( Ky. ) , 34 S. W. 523; Sise v. Willard, 164 Mass. 48; Baker v. Thompson, 162 Mass. 40; Collins v. Wickwire, 102 Mass. 143; Kent v. Morrison, 153 Mass. 137; 10 L. R. A. 756; Small v. Thompson, 92 Me. 539; Lewis v. Pittman, 101 Mo. 281; Harbison V. James, 90 Mo. 411; Evans v. Folkes, 135 Mo. 397; McMillan V. Farrow, 141 Mo. 55; Little v. Giles, 25 Neb. 313; Rhyne v. Tor- rence, 109 N. C. 652 ; Long v. Wald- raven, 113 N. C. 337; Robeson v. Shotwell, 55 N. J. Eq. 318, affirmed 55 N. J. Eq. 824; Wooster v. Coop- er, 53 N. J. Eq. 683; Benz v. Fab- ian, 54 N. J. Eq. 615; Leggett v. Firth, 132 N. Y. 7; Shmid's Es- tate, 182 Pa. St. 267; Kennedy v. Kennedy, 159 Pa. St. 327; Dye v. Beaver Creek Church, 48 S. C. 444; Sires v. Sires, 43 S. C. 266; Young V. Mut. Life Ins. Co. 101 Tenn. 311 ; Davis v. Kirksey, — Tex. — (1896); 37 S. W. 994; Smythe v. Smythe, 90 Va. 638; Thrall v. Spear, 63 Vt. 266. 141 See cases cited in preceding note. ' ()72 LAW OF WILLS. by will, it is generally held, on the fair interpretation of the will, that a fee passes to the devisee under the power.^^^ In some cases, however, this power of disposition has been limited to a disposition for the life of the life tenant. Thus, under a devise to testator's wife for life "and to disjDose of according to her owti free will and judgment, provided that she never marries the second time," it was held that she could not transfer any greater interest than one for her own life.^^^ Where the life tenant is also executor, and a power of sale in the land devised to him as tenant is conferred upon him in his capacity as executor for the benefit of the estate only, the life estate is, of course, not enlarged into a fee; ^^* nor is it where the power is conferred upon him as trustee.-^ '*^ §577. Gife of life estate with power to dispose of remainder. — When held fee, A life estate with absolute power of disposition of the re- mainder gives to the life tenant no interest in the remainder which can be reached by his creditors in any way, and yet gives him an oj^portunity to dispose of this remainder at any time for his own use. Accordingly, it is held in some juris- dictions that such devise vests a fee-simple in the first taker. This holding is generally, however, based upon special stat- utes, which were intended to enable the creditors of the first taker to reach his interest in the remainder. -^^^ 1*:^ Roberts v. Lewis, 153 U. S. i** Robertson v. Robertson, 120 3G7; Skinner v. McDowell, 169 111. Ind. 333. 305; Bowser v. Matler, 137 Ind. i45 Neeley v. Boyce, 128 Ind. 1; 649; 137 Ind. 653; Ernst v. Foster, Cook v. Dyer, 17 R. I. 90. 58 Kan. 438 ; Hemhaviser v. Decker, i^s Hood v. Bramlett, 105 Ala. 38 N. J. Eq. 426 ; Yetzer v. Brisse, 660 ; Adams v. Mason, 85 Ala. 452 ; 190 I'a. St. 346; Dye v. Beaver Alford v. Alford, 56 Ala. 350 (so Creek Church, 48 S. C. 444; at common law as to creditors) ; In 26 S. E. 717. So he may consvmie re Jones (1898), 1 Ch. 438; 67 L. all the personal property if neces- .1. Ch. N. S. ; 78 Law Times Reps, sary for his sni)port. Howe v. Ful- 474; Martin v. Fort, 83 Fed. Rep. ler, 19 Ohio, 51. page 19; Pellizzarro v. Reppert. 83 i43Dono'lass v. Sharp. 52 Ark. To. 497; Halliday \. Strickler, 78 113: Patty v. GooLsby. 51 Ark. 61. lo. 388; llershey v. Meeker Coun- ty Bank, 71 Minn. 255: In re Moer- LAW OF WILLS. 673 In states taking this view of such a devise, the devisee is regarded as owner of the fee, and may confer upon another the power of disposing of the same;^'*^ and a limitation over after a devise for life with absolute power of alienation, is repugnant to the nature of the estate and void.^'*^ In some states, by statute, such a devise is treated as a fee onlv when there is no remainder over.^'^^ It is very generally held in these jurisdictions that in order to create a fee, the power must be exclusively for the benefit of the life-tenant. If for the bene- fit of anotlier or for the benefit of the first taker and others, the estate is not a fee.-^^^ A devise to A for life with power to dispose of one-half of the property by wall gives A a fee in one-half of the property.-^^^ A power to dispose of realty by will is absolute power of dis- position so as to give the first taker a fee where this rule is in force.^^^ §578. Remainders and executory devises. — Definition. An estate in remainder is an estate created by the same instrument by which a prior estate in the same property is created, to take efi^ect upon the determination of the prior estate. -^^^ hing, 154 X. Y. 423; Lepley v. i49 Hood v. Bramlett, 105 Ala. Smith, 13 0. C. C. 189 (an obiter, 660. as the case is decided upon another I'o Johns v. Johns, 86 Va. 333; point) ; Davis v. Richardson, 10 Miller v. Potterlield, 86 Va. 876. Yer. 290 ; Bean v. Myers, 1 Cold. isi Hood v. Bramlett, 105 Ala. 226 ; Bradley v, Carnes, 94 Tenn. 660 ; Adams v. Mason, 85 Ala. 452. 27; Turner v. Durham, 12 Lea. i32 Hood v. Bramlett, 105 Ala. 316; Bowman v. Bowman, 87 Va. 660; Hershey v. Meeker County 354; Farish v. Wayman, 91 Va. Bank, 71 Minn. 255; Jackson v. 430: Hall v. Palmer, 87 Va. 354; Edwards, 7 Paige (X. Y.) 386; May V. Joynes, 20 Gratt. 692 ; Carr Freeborn v. Wagner, 49 Barb. ( X. V. Effinger, 78 Va. 197; Cole v. Y.), 43; Leonard v. Am. Baptist Cole, 79 Va. 251; Dillard v. Dil- Miss. Society, 35 Hun (X. Y.), lard, 78 Va. 208; 21 S. E. 669. 290; Hume v. Randall, 141 X. Y. i*T Dillard v. Dillard, 78 Va. 208; 499; Cutting v. Cutting, 86 X. Y. 21 S. E. 669. 522; Brown v. Farmers' Loan Co. 148 Pellizzarro v. Reppert, 83 To. 51 Hun, 386. 497; Parish v. Wayman, 91 Va. iss Fleming v. Ray, 86 Ga. 533; 430; May v. Joynes, 20 Gratt. 692; Barclay v. Piatt, 170 111. 384; Ru- Bowen v. Bowen, 87 Va. 438; Hall dy's Estate, 185 Pa. St. 359. V. Palmer, 87 Va. 354. 674 LAW or WILLS. An executory devise is an estate created by will to take effect at some time in the future after the death of testator without any reference to the existence or continuance of an intermediate estate.^ ^"* While it is a general rule that a power of disposition in the first taker, by which he might defeat a subsequent estate, prevents the gift of such subsequent estate from operating as a valid executory devise,^ ^''' still a power to the first taker to dispose of the property in some specified man- ner so as to destroy the ultimate estate, as where a power to devise was impliedly given by making the gift over condi- tional upon the death of the first taker intestate^ ^^ does not in- validate the executory devise.^ ^'^ §579. Remainder. — How created. No particular form of words is necessary in a will to create a remainder. Any expression which shows testator's intent that the prior estate shall cease at the end of a certain time, or upon the happening of a certain event, and that a subse- quent estate shall vest in others, creates a remainder.^^^ Thus 154 Dean v. Dean (1891), 3 Ch. 150 In re Thomas, 30 Ont. Rep. 49; St. John v. Dann, 66 Conn. 401; Glover v. Condell, 163 111. 566; Bank's Will, 87 Md. 425; Fish- er V. Wister, 154 Pa. St. 65; Sel- man v. Robertson, 46 S. Car. 262. "As applied to land, an executory devise is (such a limitation of a future estate or interest in lands as the law admits in 'the case of a will, though contrary to the rules of lim- itation in conveyance at common law). 2 Washburn on Real Prop- erty, 5th Ed. Marg. p. 341." Glo- ver V. Condell, 163 111. 566. 155 Ide V. Ide, 5 Mass. 500; Bur- bank V. Whitney, 24 Pick. 146; Burleigh v. Clough, 52 X. H. 267; Armstrong v. Kent, 21 N. J. L. 509; -Jauretche v. Proctor, 48 Pa. St. 466; Gillmer v. Daix, 141 Pa. St. 505. 156 Fisher v. Wister, 154 Pa. St. 65. 157 See Sec. 575, et seq. 158 7,i re Brooke (1894), 1 Ch. 43; Smith v Chadwick, 111 Ala. 542 (1896), 436: Marshall v. Au- gusta, 5 App. 1). C. 183 (a devise to be under the exclusive control of A for her life, and on her death to be distributed among her children) ; Fleming V. Ray, 86 Ga. 533; Tin- dall v. Miller, 143 Ind. 337; Moor'^s V. Hare, 144 Ind. 573; 43 N. E. 870; Furnish v. Rogers, 154 111. 569; Barclay v. Piatt, 170 111. 384 (a devise of property to be placed "in the hands of the admin- istrators for the benefit of my daughter and my son, for them and their children should they have any") Terry v. Bourne, — Ky — LAW or WILLS. 676 a devise to the daughters of testator, followed bj the state- ment that it is the wish and desire of testator that at the death of these daughters the property shall descend from them to their children, was held to create a life estate in the daughters with remainder in the children.^ ^^ A gift to A, remainder to the lawful heirs of her body, and if she dies without lawful heirs, to B, gives B a remainder.^ ^"^ A devise to testator's wife for life, and at her death "absolute- ly to my daughter A, if she still survive. If she shall be de- ceased, it is my desire that the property do pass to her heirs," gives A a vested remainder at testator's death.^^^ A freehold in trust for A for life, and then to A's children, as he should ap- point, was held to give an equitable remainder to such children, which is not divested by A's failure to appoint.^ ^^ As in other cases of construction, testator's intention to determine a particular estate at a given contingency, must be gathered from the whole will and not from disjointed clauses.^ ^^ Thus a remainder over of the shares of three beneficiaries to their children respectively, means upon the death of all of the beneficiaries, and not upon the death of each, where, in an- other clause of the will, the income from the entire fund is disposed of during the life of the survivor of these benefi- ciaries.^ ^^ (1896) ; 33 S. W. 403; McQuire v. Moore, 108 Mo. 267; Bird v. Gil- liam, 121 N. Car. 326; Brombacher V. Berking, 56 N. J. Eq. 251; Hens- ler V. Senfert, 52 N. J. Eq. 754 Duclos V. Benner, 136 N. Y. 560 Shadden v. Hembree, 17 Or. 14 Wallace v. Dening, 152 Pa. St 251; Rudy's Estate, 185 Pa. St 359; Simpson v. Cherry, 34 S. C 68; Hurt v. Brooks, 89 Va. 496. 159 Collins V. Williams, 98 Tenn. 525. This is distinguishable from the cases given in Sec. 574. In those cases the intent was clearly to create a fee, but to direct its de- scent from the first taker. In this case the intent of testator from the whole will was to create a life-es- tate only. leoBird v. Gilliam, 121 N. Car. 326. leiTindall v. Miller, 143 Ind. 337. A similar view of a similar devise is taken in Moores v. Hare, 144 Ind. 573; 43 N. E. 870. 162 In re Brooke (1894), 1 Ch. 43. 163 Shadden v. Hembree, 17 Or, 14. 164/^ re Rubbins (Ch.), 78 L. T. R. 218. 676 LAW OF WILLS. §580. Kemainder after fee-simple. A remainder over after a gift of a fee simple, or upon an absolute gift of personal property is void at common law, and this rule is now in force except where specifically modified by statute.^ ^'^ The rule that the remainder over is void is ap- plied, however, only where it clearly appears that the first beneficiary is to get an absolute interest. Where it is pos- sible to reconcile the two gifts by construing the first as a life estate only, this will be done.^^^ §581. Remainder after life estate with power of disposition of fee. A remainder over after a life estate, in which the life ten- ant has a power of absolute disposition, is valid as to the property not disposed of, in jurisdictions where such a power does not enlarge the life estate into a fee.^^" Such a re- mainder is, of course, ended as to property transferred by vir- tue of the power of disposition ;^^^ but the proceeds of such sale, no matter how changed in form, pass to the remainder- men if undisposed oi}^^ 165 Central M. E. Church v. Har- Wilhelm v. Calder, 102 lo. 342 ; ris, 62 Conn. 93; Glover v. Condell, Collins v. Williams, 98 Tenn. 525. 163 111. 566; Dodson v. Sevars, 52 i67 Coulson v. Alspaugh, 163 111. N. J. Eq. 611; Fisher v. Wister, 298; Kenney v. Keplinger, 172 111. 154 Pa. St. 65; Bowen v. Bowen, 449; Walker v. Pritchard, 121 111. 87 Va. 438; In re 'Lowman (C. A.), 221; Kaufman v. Breckinridge, 117 (1895), 2 Ch. 348 (where absolute 111. 305; Hamlin v. U. S. Express estates are limited over to several Co. 107 111. 443; Keniston v. May- in succession, the first of such per- hew, 169 Mass. 166; Crozier v. sons surviving the testator has been Bray, 120 N. Y. 306. held to take absolutely to the ex- i68 Hovey v. Walbank, 100 Cal. elusion of those whose estates fol- 192. lowed his, even though, had any leo Keniston v. Mayhew, 109 •of the beneficiaries in interest pre- Mass. 166; Redman v. Barger, 118 ceding sur\nved the testator, he Mo. 568 (and where the life ten- would have received nothing). So ant deposited the proceeds of such a gift over after an absolute gift a sale in a savings bank in her own of personalty is void. Robertson name in trust for another, it was V. Hardy, — Va. — , 1896; 23 S. E. held that this w^as not such a dis- 766; Wilmoth v. Wilmoth, 34 W. position of proceeds as to provent Va. 426. them from passing to the reminder- 166 Stivers v. Gardner, 88 lo. 307 : men ^ . LAW OF WILLS. 677 §582. Remainder over on condition broken. A remainder may be created hy a gift over upon condition, broken, where the original estate was defeasible by condition subsequent. Thus, a remainder is created by a gift to A in fee, but if, at the time of his death, no issue survive him (or upon any similar contingency, importing a definite failure of issue) then to B.^'^^ This form of remainder is usually created by a gift to the members of a class, either as a class or indi- vidually by name, with a gift over, in case of the death of any one of the members without issue, to the remaining mem- bers.^ '^^ In such a devise where A died without issue and his share passed to B and C, the other members of the class, and then B died without issue, it was held that his share received under the will directly, passed to C, but his interest in A's share passed to his heirs.-^'^^ §583. Validity of remainder. A remainder over is void if it conflicts with the rule against perpetuities, or if it creates an unlawful restraint upon aliena- tion in conflict with the statute of the state where the land is situated.-^ '^'* A remainder over may, furthermore, be void be- cause the beneficiary is not sufliciently definite.-^ ^^ A re- mainder is not void because the remaindermen Avould have taken the property by descent in the absence of a will.^'^^ i7iEosenau v. Childress, 111 W. 86G; 16 Ky. L. R. 689; Davis Ala. 214; Holcomb v. Wright, 5 v. Davis, 118 N. Y. 411. App. D. C. 76; Johnson v. John- i" McGee v. Hall, 26 S. C. 179; son, 128 Ind. 93. see Sec. 677. 172 King V. Frost, L. R. 15 App. i74 Post v. Rohrbach, 142 HI. Cas. 548; Baxter v. Winn, 87 Ga. 600; see See. 625. 239; Madison v. Larmon, 170 III. i"5 Keaney v. Keaney, 72 Md. 41 65; Best v. Van Hook (Ky. ), 13 (a devise over the death of testa- S. W. 119; 11 Ky. L. R. 753; Louis- tor's son "to the next heirs"), villa Driving, etc. Association v. i"6 Rowley v. Sauns, 141 Ind. Louisville Trust Co. (Ky.), 29 S. 179. 678 LAW OF WILLS. §584. Waiver of remainder. Where a remainder is clearly created by will, it is not waived by any conduct of the remainderman in recognition of the rights of the life tenant, not amounting to an estoppel.^ '^''' §585. What property passes in remainder. The property passed in remainder must be ascertained from the provisions of the entire will.^'^^ Ordinarily, where a re- mainder is clearly created, a subsequent provision affecting the property in which the particular estate is created, will have the same effect upon the remainder.^ '^^ And a specific provision for particular property supersedes general provi- sions not applying specifically to the property in question.^ ^*^ §586. Power of life tenant to bind remaindermen. Where specific pieces of property were devised to two or more for life, with direction to them to equalize their shares, remainder to their respective heirs, it was held that a par- tition between the life tenants bound the lieirs.^*^ Property devised to A for life, remainder to her children, may be sold upon the petition of A (who was testator's widow) and her children.^ ®^ §587. Distinctions between interests in severalty, interests in common and joint interests. In determining the interests passed by will it is often im- portant to ascertain whether testator intended to confer upon beneficiaries, interests in severalty, or in common, or joint iTTDurfee v. MacNeil, 58 O. S. Pa. St. 501; In re Lewis, 17 R. I. 238; Semmig v. Mirrihew, 67 Vt. 642. 38. 181 Hadley v. Hadley, 100 Tenn. 178 Keaney v. Keaney, 72 Md. 446. 41. 182 0x parte, Yancey, 124 N. Car. 179 Lyon V. Clawson, 56 N. J. Eq. 151. (The objection was made to 642; Lyman v. Turner, 62 Vt. 465. the sale and title thereunder that 180 Ellis V. Throckmorton, 52 N. A might have other children who J. Eq. 702; Hiestand v. Meyer, 150 would take under the will.) LAW OF WILLS. ^'^ interests. If an interest in severalty is created the benefi- ciary is vested with the only estate created in the property and has exclusive right of possession. If the interest is one in common, beneficiary ha^ not the ex- clusive right of possession, but his enjoyment of the property devised is limited by similar rights of others in the same prop- erty. The interest of the beneficiary, however, will descend just as a several interest of the same extent of duration would de- scend.^ ^^ A joint interest is one in which but one estate is created which vests in all the beneficiaries as one tenant. ^ An incident of this estate and its distinguishing characteristic is the right of survivorship. On the death of a joint tenant, his joint interest survives to the remaining joint tenants, and does not descend as a similar estate held in severalty would de- scend. So where a joint estate was devised to two upon condition subsequent, which was broken as to one, the entire interest passed to the other.^^* This statement of the differences between these classes of es- tates is imperfect, but still is sufficient to show the importance to the beneficiary of distinguishing between them. §588. Words creating an estate in common, as distinguished from an estate in severalty. Ordinarily testator's intention to create an estate in sev- eralty is so plainly worded as to be easy of enforcement, and immistakable. In such cases there will, of course, be few express precedents. An estate in common is sometimes created where testator was attempting unsuccessfully to create an estate in sev- eralty.^ ^^ Thus, where testator owned a tract of land, on the front of which were several buildings, so built that they must be used together, some of which overhung others, and on the rear of which was a building used in connection with all the i83Tompkin's Estate, 154 N. Y. i85 Heller v. Heller, 147 HI. 621; ^^34 Byrn v. Kleas, 15 Tex. Civ. App. 184 Rockwell V. Swift, 59 Conn. 205. 289. 680 LAW OF WILLS. buildings in the front of the lot, it was held that a devise of the various buildings by street numbers could not give interests in severalty.-^ ^^ So a devise of a certain number of acres out of a tract, not setting it off by metes and bounds, or otherwise specifying it, gives such devisee an interest in common with the devisee of the residue of the tract.^^^ So a gift of income, arising out of an entire tract of realty, may be held to be in common to those to whom the realty itself is devised in severalty. This principle applies with especial force to oil and gas leases.^ ^^ §589. Distinction between joint tenancies and estates in com- mon. — Common law rule. At common law a devise to two or more was presumed to be a devise to them jointly, unless testator's intention to create an estate in common appeared clearly upon the will. This rule is still in force in most jurisdictions where joint tenancies still exist.^^^ Thus a devise to the wife of testator's son and her children was held, in the absence of anything in the will showing a contrary intention, to be a devise in joint ten- ancy,^ ^^ and a devise to testator's surviving children is held to create a joint tenancy.^ ^^ If testator's intention to create an interest not in its nature joint, appeared on the will, the estate devised to two or more was held to be an estate in com- mon. Thus a devise to several "share and share alike," ^^^ ^^ 186 Heller v. Heller, 147 111. 621, and should be divided among them isTMcClure ^A. Taylor, 109 N. in proportion to the number of Car. 641; Sanderson v. Bigham, acres devised to each. Wettengel 40 S. Car. 501; Byrn v. Kleas, 15 v. Gormley, 160 Pa. St. 559. Tex. Civ. App. 205; Midgett v. isa /)i re Yates ( 1891 ) , 3 Ch. 53; Midgett, 117 N. Car. 8. In re Atkinson (1892), 3 Ch. 52; 18S Testator devised a tract of Binning v. Binning, 13 Reports, land, which was leased as an en- 054; O'Brien v. Dougherty, 1 App. tirety to an oil company, to several, D. C. 148 ; Noble v. Teeple, 58 Kan. alloting specific tracts to each. It 398. was held that although all the wells iQO Noble v. Teeple, 58 Kan. 398. were upon the tract devised to one, isi O'Brien v. Dougherty, 1 App. the royalties reserved in the lease D. C. 148. passing to the devisees in common, i92 /n re Yates (1891), 3 Ch. 53. LAW OF WILLS. 681 a devise of a remainder to the "respective" heirs of certain life tenants created estates in common. But a devise to "all and every" children did not create an estate in common.^ ^^ §590. Modern statutory rule. The common law rule that a devise or grant to two or more is presumed to create a joint tenancy has been abolished in many jurisdictions, partly by change in judicial decision, but more generally by statute. In some states joint tenancies have been abolished, and in others it is provided that a devise or grant to two or more shall be presumed to create an estate in common.^ ^"^ §591. Definite and indefinite failure of issue. — Distinction and definition. Where the gift over, in the event of dying without issue, is not substitutional in its nature, and it appears that the death contemplated might take place after testator's deatli, the ques- tion presented for consideration is at what time this failure of issue is to exist. The will may be so worded as to show that the failure of issue spoken of was to occur at the death of a specified person, generally the first taker. Under such a construction the estate granted was a fee simple, conditioned upon the existence of issue of the first taker at the specific time indicated. This was known as a definite failure of issue. -^^^ On the other hand, the will might be so worded as to show that testator did not contemplate the failure of issue at any specified time, but that he intended the limitation over to take effect only if the issue of the first taker should ever fail 193 Binning v. Binning, 13 Rep. Estate, 154 N. Y. 634; Kimberly, in 654. re, 150 N. Y. 90; Sturm v. 19* Humason V. Andrews (Conn.), Sawyer, 2 Pa. Sup. Ct. 254; Gil- (1900), 45 Atl. 354; Bonner v. man v. Morrill, 8 Vt. 74. Hastey, 90 Ga. 208; McCord v. 19- Glover v. Condell, 163 111. Whitehead, 98 Ga. 381; Noble v. 566; Moorehead's Estate, 180 Pa. Teeple, 58 Kan. 398; Tompkin's St. 119. 682 LAW OF WILLS. at any time in the future. Under such a construction the es- tate granted was an estate-tail in the first taker with limita- tion over at the termination of such estate-tail.^^*' §592. Construction of "dying without issue." — Gifts of per- sonalty. The expression "dying without issue/' when used with ref- erence to a gift of personal property, has been held prima facie to mean issue living at the death of the first taker.^^'^ Another statement of this rule is that in bequests of person- alty the courts seize "slight circumstances," as showing that testator intended an indefinite failure of issue.^^^ Thus, a gift over on the death of A "without living issue" has been held to imply a definite failure of issue at the death of A.^^^ §593. Construction of "dying without issue." — Devises of realty at common law. When the testator provides in his will for a devise over in the event of the first taker's "dying without issue," or "dying without heirs of his body," or some similar expression, the common law held quite uniformly, though apparently contrary to the ordinary meaning of the words, that the failure of issue thus indicated was an indefinite failure of issue; hence, under such gift of realty, the first taker took a fee-tail with limitation over to the person indicated ; while a gift of person- alty passed an absolute interest therein, the courts not recog- nizing any interest after a fee-tail of personal property.^*^*^ 19G Barber v. Pittsburg, etc. Ry. lo" Glover v. Condell, 163 111. Co. 166 U. S. 83; Hoff's Estate, 147 566; Smith v. Kirabell, 153 111. Pa. St. 636; Selman v. Robert- 368. •son, 46 S. C. 262; Mendenhall v. 200 Wilson v. Wilson, 46 N. J. Mower, 16 S. C. 303; McCorkle v. Eq. 321: Morehouse v. Cotheal, 1 Black, 17 Rich. Eq. 407; Terry v. Zab. 480; Moore v. Rake, 2 Dutch. Brunson, 1 Rich. Eq. 78: De Tre- 574; Chetwood v. Winston, 11 Vr. ville V. Elis, Bail. Eq. 40. 337; so "in case of his death . . . 197 Moorehead's Estate, 180 Pa. without issue"; Barber v. Pitts- gt. 119. burg. etc. Ry. Co. 166 U. S. 83; 19S Glover v. Condell, 163 111. Shearer v. Miller, 185 Pa. St. 149. 566; Ladd v. Harvey, 21 N. H. 514; Bedford's Appeal, 40 Pa. St. 18. LAW OF WILLS. 683 In jurisdictions which took the former view of the meaning of "dying without issue," the rule that it imported an indefi- nite failure of issue was only a prima facie rule, and might be re- butted by the context of the will.-^^ Thus a provision that upon the death of the beneficiary without issue his share of the estate shall be divided among certain persons who survive him, the reference to survivors fixes the death of the first taker as to the time for determining the failure of issue.^*^^ So a gift to A, and if she "die without leaving any heir or heirs" to B, was held to import a definite failure of issue.^*'^ In accordance with this principle of construction a gift over in case of the beneficiaries' "dying without offspring," was held to impart an indefinite failure of issue, "offspring" being re- garded as synonymous with "issue." ^^'^ §594. Modern rule. This common law construction was so contrary to the in- tention of the average testator drawing his will without legal advice that it was repudiated from the first by some American courts, and, unless the context of the will clearly called for a different construction, failure of issue was construed as meaning definite failure of issue.^*^^ In other states this common law rule has been changed by statute, so that the rule today, in the majority of jurisdictions, is that the use of the words "dying without issue" after wor-ds which would give an estate in fee, simply created a fee con- ditioned upon the existence of issue of the first taker at the 201 Wilson V. Wilson, 46 N". J. Eq. Sm. 167. A contrary view was 321 ; Moorehead's Estate, 180 Pa. taken of this phrase in the same St. 119. will hy the courts of Pennsylvania. 202 Moorehead's Estate, 180 Pa. Mitchell v. Ry. 165 Pa. St. 645. St. 119. 203 Collins V. Thompson, — Ky. 203 Fairchild v. Crane, 2 Beav. — , 43 S. W. 227 : Parish v. Fer- 105; Wilson v. Wilson, 46 N. J. Eq. ris, 6 0. S. 56.3; Niles v. Gray, 12 321; Groves v. Cox, 11 Vr. 40. 0. S. 320; Taylor v. Foster, 17 O. 204 Barber v. Ry. 166 U. S. 83, S. 166; Smith v, Hankins, 27 O. S. citing Young v. Davies, 2 Dr. & 371 ; Piatt v. Sinton, 37 O. S. 353. 684 LAW OF WILLS. time designated, which is generally the death of the first taker.-°^ The time at which this failure of issue is to occur may also be the termination of the life estate in some one other than the first taker, as> for example, a grant to testator's wife for life, with remainder over to testator's children, but if they should die without issue, then to others designated.^"'*^ So a gift to the daughter of testator in trust, to be held in trust until her majority when it was to be paid over to her, and in case of her death without lawful issue living, such property to go to certain specified devisees, it was held that the time fixed for the failure of issue was the termination of the minority of the daughter, and that by her "death without issue" was meant her death during her minority.^°® §595. Personal property. — Absolute ownership. — Rule in Shel- ley's Case. In bequests of personal property the rule was very dif- ferent from that obtaining in devises of real estate. A gift of personal property by will was held, if nothing to the con- trary appeared in the will, to pass the entire interest which the testator had in such property.^*^*^ At common law, there- fore, the question in bequests of personal property was whether 206 /jj re Edwards (1894), 3 Ch. 194; Brooks v. Kipp, 54 X. J. Eq. 644, 64 L. J. Ch. (N. S.) , 179 ; First 462; Fairchild v. Crane, 13 jST. J. National Bank v. De Pauw, 75 Fed. Eq. 105; Kelley v. Williams, 113 775; St. John v. Dann, 66 Conn, N. C. 437; Nes v. Ramsay, 155 Pa. 401; Lednum v. Cecil, 76 Md. 149; St. 028; Shearer v. Miller, 185 Pa. Anderson v. Brown, 84 Md. 261; St. 149; De Wolf v. Middleton, 18 Weybright v. Powell, 86 Md. 573; R. I. 810; Bethea v. Bethea, 48 S. Welch V. Brimmer, 169 Mass. 204; Car. 440. Schmaunz v. Goss, 132 Mass. 141; 207 Corey v. Springer, 138 Ind. Whitcomb V. Taylor, 122 Mass. 243; 506; Crozier v. Cundall, 99 Ky. Brightman v. Brightman, 100 Mass. 202; Dunlap v. Fant, 74 Miss. 197; 238; Nightingale v. Burrell, 15 Pick- 20 So. 1828. ering, 104: Nowland v. Welch, 88 208 Colby v. Doty, 158 N. Y. 323, Md. 48; Mnllreed v. Clark. 110 affirming 92 Hun, 607. Mich. 229; 68 N. W. 138; Dunlap 209 Mulvane v. Rude, 146 Ind. V. Fant, 74 Miss. 197; 20 So. 874: 476. Brokaw v. Peterson, 15 N. J. Eq. LAW OF WILLS. ^^^ the context of the will showed an intention to giving any- thing less that the absolute ownership of such property, and, if no such intention appeared, the absolute ownership was held to pass. This rule applies with even greater force under modern law, where the prima facie rule of construction is that testator is disposing of his entire estate. Accordingly, it was held thar gifts of personal property are absolute gifts unless something appears in the will to the contrary.^^^ A gift of personalty to A fc^r life, to be divided among her children at her death, with a power to her to give to any of her children anything that "she was able or thinks proper to give,'' was held to give A absolute ownership of such personalty.^^^ The rule that a life estate only passes by a gift of a life estate with full power of disposition is said to apply to personalty as well as to realty.^^^ While the Rule in Shelley's Case could, from its terms, ap- ply only to devises of real property, a corresponding rule was, by analogy, applied to personal property, and a gift of personal property to one for his life, with remainder over to his heirs, was held to pass an absolute interest in the first taker.^^^ The Paile in Shelley's Case was never, even at common law, as arbitrary in gifts of personalty as in devises of real estate. In bequests of personalty, the courts paid more attention to the actual wishes of the testator, and were more likely to treat the estate of the first taker as a life estate with a remainder over to his children or descendants than they were in devises of real property similarly expressed, if the law permitted life estates in such personalty. Accordingly, it was well settled, even at common law, that 210 Browning v. Southworth, 71 211 Eobertson v. Hardy, — (Va.) Conn. 224; Loring v. Hayes, 86 — 1896; 23 S. E. 766. Me. 351; Thomae v. Thomae, — 212 Godshalk v. Akey, 109 Mich. N. J. _; 18 Atl. 355; Brombacher 350, 1896; 7 N. W. 336; Wooster v. V. Berking, 56 N. J. 251 ; Washbon Cooper, 53 N. J. Eq. 682. V. Cope, 144 N. Y. 287 ; McCune v. 213 Nealis v. Jack, N. B. Eq. Cas. Baker, 155 Pa. St. 503; Cook v. 426; Smith v. McCormick, 46 Ind. Bucklin, 18 R. I. 666; Bailey v. 135. Hawkins, 18 R. 1. 573. 686 LAW OF WILLS. any gift of personal property, in terms which would pass a fee-simple in realty ,^^^ or a fee-tail,^^^ would pass an absolute interest in personal property. So wdiere the income in j)er- sonalty is given to one, without limiting it to his life, it is held that absolute ownership of the property from which the income is derived passes to legatee.^^^ A life estate in personalty without any gift over is held in Delaware to pass an absolute interest.^^'^ Since the abolition of the Rule in Shelley's Case, a bequest of the income of personal property with remainder over to the heirs and children of the first taker passes merely a life estate to the first taker and not an absolute interest."^* §596. Life interests in personalty. — Possibility of creation. While at one time it was questioned v/hether a life estate could be created in personalty, it is now well settled that, as a general rule, such estate may be created.^^^ There are still some exceptions to this general proposition. If the personalty is perishable in its nature, and of such sort that it can be used only by consuming it, a gift to the first taker for life passes the property absolutely.^^*^ A controlling reason for this view is that if testator wishes to prevent the life ten- ant from holding the perishable personalty as absolute owner, he may provide in the will for the sale of such property, and to invest the proceeds at interest, the income only to be paid to the first taker.^^^ 214 Mason v. Pate, 34 Ala. 379. Pniden v. Pruden, 14 0. S. 251; 215 Hughes V. Nicklas, 70 Md. Keating v. Reynolds, 1 Bay ( S. 484; 14 Am. St. Rep. 377. Car.), 80; Williamson v. Hall, 10 2i6Wellford v. Snyder, 137 U. S. Am. Law Reg. N. S. 466; see Sec. 521 : Lorton v. Woodward, 5 Del. 597 and cases there cited. Ch. 505 ; Brombacher v. Berking, 220 Dunbar v. Woodcock, 10 Leigh 56 N. J. Eq. 251. (Va.), 628: Markley's Appeal, 132 217 Derickson v. Garden, 5 Del. Pa. St. 352; Drennan's Appeal, 118 Ch. 323; Pepper v. Warrington, 4 Pa. St. 176; Bartlett v. Patton, 33 Harr. (Del.) 55. W. Va. 71; 5 L. R. A. 523. 21s Eichelberger's Estate, 135 Pa. 221 in Pennsylvania it is held St. 160; Clemens v. Heekscher, 185 that a gift of personalty to testa- Pa. St. 476. tor's widow for life is an abso- 219 King V. Beck, 15 Ohio, 559 ; lute gift if no trustee is inter- 687 LAW or WILLS. In many jurisdictions another exception to the general ru e exists when a life estate is given to the first taker with absolute power to dispose of the corpus of the property if he sees fit. Such a bequest is held to pass an absolute interest m the prop- erty to the first taker.^^^ ^ . +t, A limited right of disposition as to use such part ol the principal as is necessary for the support and maintenance of the first taker does not create an absolute interest in the property 22^ And in such case if the first taker wastes the corpus of the property or appropriates it unreasonably he may be restrained by a court of equity upon complaint of the next taker.^^'* §597. Life interests in personalty.— How created. A life Interest in personalty may, in most cases, be created by any form of words which expresses testator's intent to create such interest. Thus, after an absolute and unqualified bequest of personal property, a subsequent clause, showing testator s intent to pass but a life interest, will limit and qualify the absolute gift."-^ ,^ . ,, The intention of tf^stator to cut down a gift of personalty from an absolute estate to a life estate must be manifest by clear and unmistakable language. And such intention can not be inferred from the fact that the interest was to be a life interest in certv-ri contingencies which did not exist; nor posed. Drennan'. Appeal, 118 Pa. 350; Tyson's Estate, 191 Pa^ St. St. 176. But vhere the fund given 218; Gross v. Strommger, 1.8 Pa. is min"-led v'^"sonalty and realty St. 64. ^ ,,, a lif"e:tate Ly in both is created -^ Little v. Geer, 69 Conn. 411 ; even if no trustee is interposed. see Sec. 598. Kane's Estate, 185 Pa. St. 544. -^ Smith v. Bell 6 Pet U. S. L.Kni^^ht V. Knight, 162 Mass. 68; Hamlin v. United States Ex- ,, , . 1 no Pr, <^t nress Co 107 111. 443: Peirsol v. 460; Markley's Appeal, 118 Pa. bt. press v.o., i Ppi-hard's 176- Gold's Estate, 133 Pa. St. Roop, 56 N. J. Eq 739 Geihard s ; Heppenstall's Estate, 144 Pa. Estate, 160 Pa. St. 253; Byer s St 059- Meacbam v. Graham, 98 Estate, 186 Pa St., 404. ?e.n 190; 39 S. W. 12. "^^ Wellford v. Snyder, 13. U. S. 1^3 Godsbalk v. Abbey, 109 Mich. 521. 688 LAW OF WILLS. can such intention be inferred from an attempt to direct the methods in which the beneficiary shall use the same in his life- time,^-'^ or shall dispose of the same at his death ;^^* nor from a provision reducing the interest in other chattel property to a life interest.^^^ A life estate may be created by specific direction that the interest shall exist for life only; as for example, the in- come of a certain fund is to pass to one for his natural life.^^° And this direction may be implied from a direction to trustees to pay "the income only" to a certain person.^^^ A life estate in personal property may also be created by a gift of personal property which, expressly stated to be for life or not, gives the principal, on the death of the first taker, to other beneficiaries named. In order to give effect to every part of such a bequest, the interest of the first taker is con- strued as a life interest only.^^^ Thus, a bequest of one-third of the income of a fund to testator's widow for life and two- thirds to the children for life, with the provision tliat upon the death of the widow her share of the income shall be pay- able to the children pro rata, and that, in the case of any child dying leaving issue, the corpus of the fund representing hia share of the income should go to such issue, was held to pass a life estate only in the first taker.^^^ 227 Holt V. Holt, 114 N. C. 241. v. Hollyday, 74 Md. 458; Robinson 228Rozell V. Thomas, Tenn. Ch. v. Finch, 116 Mich. 180-; Peirsol App. (1896); 39 S. W. 350. v. Roop, 56 N. J. Eq. 739; Brom- 229 Waring v. Bosher, 91 Va. 286. bacher v. Berking, 56 N. J. Eq. 230 Chubbock v. Murray, 30 N. S. 251 ; Hooker v. Montague, 123 N. 23; Thieme v. Zumpe, 152 Ind. C. 154; Howland v. Clendenin, 134 359; Nevin's Estate, 192 Pa. St. N. Y. 305; Noble's Estate, 182 Pa. 258 ; Ritter's Estate, 148 Pa. St. St. 188 ; Neeley's Estate, 155 Pa. St. 577. 133 231 Winn V. Bartlett, 167 Mass. 253 295. 404 232 Gross V. Sheeler, 7 Houst. Del. 517 Gerhard's Estate, 160 Pa. St. Byers's Estate, 186 Pa. St. Tingley v. Harris, 20 R. I. Covar V. Cantelou, 25 S. C. 35. 280; 34 Atl. 812; Holcomb v. 233 Brombacher v. Berking, 56 N. Wright, 5 App. D. C. 76; Nading .T. Eq. 251: Howland v. Clendenin, V. Elliott, 137 Tnd. 261; Bedford 134 N. Y. 305. V. Bedford, 99 Ky. 273; Hollyday LAW OF WILLS. 689 §598. Life interests in personalty — Protection of remainder- man. Where personal property is bequeathed to one for life only with remainder over, it sometimes becomes an important ques- tion whether the first taker is entitled to the possession and control of the corpus of the property, and, if so, whether the first taker must give bond for the repayment of the same at the expiration of the life estate. Where the property is bequeathed in this way in trust, the first taker has no right to the possession of the corpus of the property.-^'* Where the property is given for life, and no trust is created, the beneficiary has a right to the possession of the corpus of the property without the intervention of a trustee.^^^ Where a trustee is appointed by will during the minority of the life tenant, the tenant is entitled to the possession of the property on coming of age.^"*' Where personal property is given one for life, without the inteiwention of a trustee, it is held in some jurisdic- tions that the life tenant may be required, if he wishes to assume possession of the corpus of the property, to give bond for its safe keeping and repayment--^^"^ In other jurisdictions it is held that the life tenant is en- titled to the possession of the personal property without giv- ing any bond for the repayment of the same, unless some special showing is made which will induce the court in its discretion to require such.^^s j^ ^ew Jersey it seems to be 234LaBar's Estate, 181 Pa. St. McDougall, 141 N. Y. 21; Meis 1; Reynold's Estate, 175 Pa. St. v. Meis, — (N. J. Eq.) — 1896; 257. 35 Atl. 369. (So by statute, to 235 Fox V. Senter, 83 Me. 295; protect contingent interests.) Al- Kuykendall v. Devecmon, 78 Md. len v. Boomer, 82 Wis. 364. 537 ; White v. Massachusetts In- 238 Hunter v. Green, 22 Ala. 329 ; stitute of Technology, 171 Mass. Lynde v. Estabrook, 7 Allen, 68; 84 ■ Henderson V. Kinard, 29 S. Car. Bethea v. Bethea, 116 Ala. 265; 15 ' Garrity's Estate, 108 Cal. 463; 236 Kuykendall v. Devecmon, 78 Godwin v. Watford, 107 N. Car. ]y[(j 537 168; Weeks v. Jewett, 45 N. H. 237 Pendleton v. Kinney, 65 Conn. 540 ; Hitchcock v. Peaslee, 145 N. Y. 222; Little v. Geer, 69 Conn. 411; 547: Martin v. Martin, 69 Miss. Fuller V. Fuller, 84 Me. 475; In re 315; Bierce v. Bierce, 41 O. S. 241; 690 LAW OF WILLS. held that at his option the executor may surrender the per- sonalty to the life tenant without bond,^^^ or may exact bond.^^** Where life tenant has power to dispose of the corpus as he sees fit, his right to the possession of the property without giving bond is generally recognized.^^-^ Under the Connecticut statutes, bond in this case is held nee- essary.^^^ Posegate v. South, 46 O. S. 391; Lapham v. Martin, 33 O. S. 99; Martin v. Lapham, 38 O. S. 538; RatliflF V. Warner, 32 0. S. 334. This doctrine has been applied even where the life-tenant is a non- resident and is financially irrespon- sible, it being held that security can be required only upon a show- ing that the life tenant intends to squander the corpvs. Martin v. Lapham, 38 O. S. 538. 239Rowe V. White, 1 C. E. Gr. 411. 240 /„ re Ryerson, 11 C. E. Gr. 43. 241 Langley v. Farmington, G6 N. H. 431 : Posegate ^\ South, 46 0. S. 391. 242 Security Company v. Pratt, 65 Conn.' 161. LAW OF WILLS. ^^^ CHAPTER XXVI. GIFTS OF INCOME, AND ANNUITIES. §599. Gifts of income in general. Within the limits of the rule against perpetuities the law recognizes the right of the testator to dispose of the income of his property by will, and gifts of this sort are constantly upheld.^ And where testator manifests a clear intention, he may give the income separate and apart from the princi- pal, so that the beneficiary has no interest whatever in the property from which the income is derived.^ The intention to separate the income from the principal 'is generally manifested either by creating an express trust or by limiting the interest to a life interest in the income only.^ An absolute gift of income is not diminished by subse- quent power to use the principal if necessary,^ nor by the 1 Beers v. Narramore, 61 Conn. 171 111. 229; Nelson v. Nelson, 57 13; Security Company v. Cone, 64 N. J. Eq. 118; 36 Atl. 280; Harb- Conn 579; Pitkin v. Peet, 87 lo. ster's Estate, 133 Pa. St. 351; 268; Morse v. Morrell, 82 Me. 80; Eichelberger's Estate, 135 Pa. St. Smith V. Greeley, 67 N. H. 377; 160; Walker v. Gibson, 164 Pa. St. Cain V. Hooper (N. J. Ch.). 29 Atl. 512; Beirne v. Beirne, 33 W. Va. 327; 7n re Fisher, 19 R. I. 53; Max- 663. well V. Sargent, 90 Wis. 3.52. 3 See oases cited in preceding 2Mackay v.Mackay,107 Cal. 303; note. Dehaven v. Sherman, 131 111. 115; -^ Cowles v. Henry, 61 Minn. 459. 6 L. R. A. 745; Bigelow v. Cady, 692 LAW OF WILLS. fact that the beneficiary is given sufficient property for his support by other provisions of the will.^ Where by arrangement between testatrix and her husband she directed that the support of certain children should be paid one-half out of her estate and one-half out of that of her husband's, it was held that if the husband should refuse to pay, the entire support of the children should be paid out of the wife's property, drawing upon the principal if neces- sary.^ §600. For what time income is payable. Within the limits of the rule against perpetuities, the pay- ment of the income is to extend for. as long a period as tes- tator shall designate in his will.'^ The only question in- volved is that of the intention of testator. Thus, a gift to A absolutely for the life of B, does not terminate with A's death, but the income must be paid to A's administrator.^ A gift of income to testator's grandchildren until the youngest comes of age "and as long as one or either of them shall live," was held, in view of the context of the will, to mean "or as long as one or either of them shall live" ; and the income was accordingly payable only till the surviving child became of age.® The duration of the time for paying the income may be otherwise modified by the context. Thus a gift of testator's homestead, furniture, and all his residuary property, to A for one year after testator's death, and as much longer as testator should choose to stay and use the same was modi- fied by a subsequent provision of the will that upon the set- tlement of the estate A was to receive a certain bequest out 5 Hills V. Putnam, 152 Mass. 123. more Presbyterian Association, 77 6 Allen V. Boomer, 82 Wis. 364. Md. 50; Shimer v. Shimer, 50 N. J. Tin re Holford (C. A.) (1894), Eq. 300; McBride's Estate, 152 Pa. 3 Ch. 30; Morris v. Bolles, 65 Conn. St. 192; Engle's Estate, 166 Pa. St. 45 ; Angell v. Springfield Home for 280. Aged \Yomen, 157 Mass. 241; New s Morris v. Bolles, 65 Conn. 45. England Trust Company v. Pitkin. 9 Shimer v. Shimer, 50 N. J. Eq. 103 Mass. 506; Backus v. Balti- 300. LAW OF WILLS. "^^ of the residuary clause, so that the right to use the residuary property uuder the first clause was held to last only till the estate was settled.^ "^ Where testator had provided for the investment of his prop- erty so as to produce an income, and then provided for the payment "out of said net income 'of the sum of $260 to my father for the term of his natural life," it was held to mean an annual payment.^ ^ §601. Time from which income is to be estimated. Where the income given to beneficiary arises from cer- tain securities, the income or dividends upon which are not collected by the trustees or executors until some time after testator's decease, the question arises whether the income should be estimated from testator's death or from the time that the dividends or interest is received by the executor. This is entirely a question of testator's intention. Where he abso- lutely gives the beneficiary a given income and merely indi- cates in his will the source from which it is to be obtained, the general rule is that the income in such cases is to be es- timated from the death of testator, enough of the capital, if necessary, being retained to pay the income during the period in whicii the fund is non-productive.^^ xhis rule holds good even where the first payment is to be made only when ''suflicient funds for that purpose shall come" into the hands of the trus- tee.i^ But where the bequest is only of the income to be obtained from a certain specified fund, for instance, one to be raised by converting realty into money, it is held that the beneficiary can receive only the actual income when received from such fund.^"* 10 Angell V. Springfield Home for i* Hite v, Hite, 93 Ky. 257 ; 40 Aged Women, 157 Mass. 241. Am. St. Rep. 189; 19 L. R. A. 173. n Jenkins v. Guaranty Trust This is only a special application of Company, 53 N. J. Eq. 194; 30 Atl. the question whether the gift is lim- 33^^ ited to the income of the fund, or in- 12 Griggs V. Veghte, 47 N. J. Eq. eluded the right to use the princi- 179; Stanfield's Estate, 135 N. Y. pal if necessary to the comfort 292. of the life-tenant. See Sec. 607. 13 Crew V. Pratt, 119 Cal. 131. Ii94 LAW OF WILLS. ii602. Rules for ascertaining income. A gift of the income generally means a gift of the net in- come aft^r deducting taxes and other expenses necessary to the preservation of the property from which the income is derived.^ ^ The testator can, of course, charge the expenses upon some other fund, giving a named beneficiary the gross income i^*^ and in such case if the estate is to be distributed before the life estate terminates, suthcient propeity should be retained to pay the taxes and other expenses during the continuance of the life estate.^" So where the education of minors is charged upon testator's estate, the estate may be distributed upon withholding a sum adequate for such education.^ ^ The intention of testator to give to the beneficiary the en- tire income of a given fund must be given full effect. Thus where testator directed that the fund be so invested as to produce •4'^. giving authority to trustees to retain any secur- ities they might see fit, without converting them, and the trus- tees retained some securities which paid 6%, it was held that the beneficiaries were entitled to the entire income, and not merely of 4/c upon the par value of the securities.-^ ^ But a direction to invest a fund so as to produce a certain net income can not impose upon trustee the duty of paying taxe^ out of his own means.-*^ WTiere testator bequeathed one-half of the gross income of certain property to his widow and the other half to the heir, charged with taxes and current expenses, it was held that if the taxes and expenses exceeded the heirs's part of the incom.e they must be charged upon that given to the widow.-^ 15 Duke of Cleaveland's Estate i • Wordin's Estate. 64 Conn. 40 • 11894 1 Ch. 164) : Heard v. Read. hi re Fisher. 19 R. I. 53. 169 Mass. 216: Morse v. Monell. is XefT v. Xeff. 3 Weekly Law 82 Me. 80: Dickinson v. Henderson Gaz. 67. (Mich.) (1900), 81 X. W. 583: ^^In re Thomas (1891), 3 Ch. Dewey's Estate, 153 X. Y. 63: 4S2. Bo^jrs V. Taylor, 29 O. S. 172. 20 Thiebaud v. Tait, — Ind. 18 Wordin's Estate. 64 Cona. 40 : ( 1894 ) 36 X. E. 525. Woodward v. .James. 115 X. Y. 346: 21 Woodward v. Jaones, 115 X. Starr v. Starr. 132 X. Y. 1.54. Y. .346. LAW OF WILLS. 695 A bequest of an income from a certain business carries with it the profits arising from the sale of property dedicated to such business before testator's death, or entitles beneficiary to the benefit of the consumption of such property, where it is property which is consumed in using.^^ So a gift of the income of testator's estate for life carries with it the profits of a partnership in which funds of the es- tate were to be invested.^" The appreciation or depreciation of securities in which the funds are invested is usually held to be a risk which must be borne by the parties entitled to the securities subject to the rights of the beneficiary to receive the income for a certain time.^^ Where the income of a specific fund of $5,000 was be- queathed to A for life and it was provided that on A's death "the five thousand dollars of which A receives the interest" for life should go to B, it was held that B took the fund as invested and hence any appreciation in the value of the in- vestment enured to B's benefit.^^ So where executors invest in bonds at the premium, they can not retain the income in order to make the premium pay for such bonds.^^ But in some states it is held that profit arising from a change of form of investment must be apportioned where by reason of such change there has been a loss or diminution of income. Thus where the fund is invested in a mortgage upon which a foreclosure suit is brought, it has been held that any profit thus made should be apportioned between life tenant and remainderman in the proportion that the principal in- 22 Allen's Succession, 48 La. Ann. Am. St. Rep. 189 ; 19 L. R. A. 1036. (A gift of the income of 17.3: Monson v. New York Security a sugar plantation gave legatee the & Trust Company, 140 X. Y. 498 ; right to have coal which was stored Boyer's Estate, 174 Pa. St. 16. upon the plantation for use in mak- 23 Boyer's Estate, 174 Pa. St. 16. ing sugar, used in such business 26 mte v. Hite, 9.3 Ky. 257. But without paying the estate its val- where executors have by mistake ue. ) paid the entire income of certain 23 Buckingham v. Morrison. 130 property to A instead of only pay- Ill. 437. ing the balance thereof after deduct- 21 Hite v. Hite, 93 Kv. 257 : 40 ing some annuities, it is held that 696 TA.W OF WILLS. vested bears to the arrearages of interest.^' The same rule is said to apply if there is a deficiency.-^ But where the fund is invested in more than one security, it is held that profit on one security should be set off against loss on another, and may be withheld for that purpose.^^ Where the realty, the income of which is bequeathed, is operated for oil, the oil is income and belongs absolutely to the life tenant.^^ Courts are decidedly at variance upon the question whether stock dividends are to be treated as income or capitaL In some states they are treated as merely another form of cap- ital of the corporation ; and hence the income only goes to the life tenant, and the stock issued as a dividend goes to the remainderman irrespective of when the dividend is earned. ^^ Where, instead of issuing a stock dividend the right is given to stockholders to subscribe for the new stock at a cer- tain figure, and this right is a valuable one which may be sold, it is held that if the new issue of stock will increase the cap- ital stock of the corporation in which the stock is held, and thereby diminishes the par value of each share, the value of executors may retain sufficient in- come to replace the amount thus erroneously paid to the wrong bene- ficiary. Hammond v. Hammond, 169 Mass. 82. 27 Parker v. Seeley, 56 N. J. Eq. 110. 28Hagan v. Piatt, 48 N. J. Eq. 206; Tuttle's Case, 49 N. J. Eq. 259. 29 Parker v. Johnson, 37 N. J. Eq. 366. soWoodburn's Estate, 138 Pa. St. 606. It is held, however, that where the realty covered by one oil-lease is devised in severalty and the lease is held to pass to such devisees in common, the devisee of a portion of the land is entitled to have the damage done to the rental value of his realty for ordinary purposes deducted from the royalties paid by the lessees under the oil-lease before such royalties are distrib- uted among the devisees ; but the cost of repairing the permanent in- juries to the freehold should be postponed until the termination of the lease. Wettengel v. Gormlty, 184 Pa. St. 354, following the pre- vious holding in the same case in 160 Pa. St. 559. In Ohio, on the other hand, royalties for the min- ing of coal are held to be principal. Brooks V. Hanna, 19 Ohio C. C. 216. 31 Minot V. Paine. 99 Mass. 101 ; Mills V. Britton, 64 Conn. 4; In re Brown, 14 R. I. 371; Greene v. Smith, 17 R. I. 28. LAW OF WILLS. ^'^^ 32 this right to subscribe for stock must be charged as capital^ But where the right is given to the stockholders of one com- pany to subscribe for stock in another company, and the in- crease of the capital stock of the second company does not decrease the value of the stock of the first, it is held that such right, even when of money value, is merely incidental, and is to be classed as income, not as principal.^^ In other jurisdictions a stock dividend is held to be income like a cash dividend.^"* When the trust fund is invested in stocks, cash dividends are usually held to be income, whether ordinary dividends or special distributions.^-^ Some courts, however, attempt to ap- portion the dividend, holding the part of it earned before tes- tator's death to be principal and the part earned subsequently to be income.2^ j^ other jurisdictions an attempt is made to apportion stock dividends, giving the amount which repre- sents the earnings up to testator's death to the remainder- man and the rest to the life tenant.^^ A gift of the net income of certain realty, which was to be managed in connection with other realty, gives the benefi- ciary the gross income less taxes, and a proportionate share of the repairs, wages of workingraen and salary of agent ne- cessary to keep up the entire realty.^^ Where executors were directed to manage a plantation so as to pay "taxes and other charges," the rest of the income to be paid to A, it was held that the expenses incurred by testa- tor for the crop standing at the time of his death can not be 32 Eisner's Estate, 175 Pa. St. In re James, 14G N. Y. 78: (even j^3 when derived from proceeds of the 33 Eisner's Estate, 175 Pa. St. sale of real estate). 143; Wiltbank's Appeal, 64 Pa. St. 36 Smith's Estate, 140 Pa. St. 344. 25(5 37 Eisner's Appeal, 17.5 Pa. St. " slnite V Kite, 93 Ky. 257; 40 143; Smith's Estate, 140 Pa. St. Am. St. 189; 19 L. P. A. 173. 344; Pritchitt v. Trust Co. 96 Tenn. 35Hopkin's Trusts, L. R. 18 Eq. 472. 696; Gibbons v. Mahon, 136 U. S. 38 Duke of Cleveland's Estate 549; Gilkey v. Paine, SO Me. 319; (1894) 1 Ch. 164. Rand v. Hubl)oll, 115 Mass. 461. 698 LAW OF WJLLS. deducted from the price of such crop, but the price received less taxes and expenses, after testator's death must be paid to Assessments for sewers and street paving must be deducted from the income under a will providing that ''all reasonable repairs and improvements" shall be deducted from the in- come.'*° But where "taxes" were made payable out of the in- come given to life tenant, it was held that sewer assessments could not be deducted from such income.'*^ A direction to pay over the income of certain stock after first paying the debts and funeral expenses, does not charge such income with the commissions of executor and the costs of administration in addition.^^ §603. Gift of income charged with support of others. A gift of the income of a fund to A for "his use and bene- fit, and for the maintenance and education" of other persons named, or any similar form of expression, is generally held to give to A the income of the fund for life, but charged, how- ever, with the duty of supporting and educating the persons designated."*^ In such a case A may sell his interest in the property devised, subject to the liability to support the other beneficiaries.^^ Whether the court will inquire, in litigation, after the time which the beneficiaries are to be supported has expired, into the question of the sufficiency and adequacy of their support, is a question upon which the courts are not harmonious.'*^ 39 Allen's Succession, 49 La. Ann. ** Dixon v. Bentley, 50 N. J. Eq. 1096. 4S6. 40 Warren v. Warren, 148 111. 45 Forbes v. Darling, 94 Mich. 021. 641. (In this case it was held that, 41 Chambers v. Chambers, 20 K. after the trust had been fully per- I. 370. formed, no inquiry would be per- 4^ Nash V. Obei-, 2 App. D. C. mitted into the sufficiency and ade- 304 : 22 Wash. L. Rep. 92. quacy of the maintenance and edu- 43 7n re Booth (1894) 2 Ch. 282; cation where there was some sort Hurd V. Shelton. 04 Conn. 496; of maintenance and education giv- Griffin v. Griffin (Ky.) (1893), 21 en.) S. W. 38 : Dixon v. Bentley, 50 New England Mortgage Security N. J. Eq. 486. Co. v. Buice, 98 Ga. 795. In LAW OF WILLS. 699 §604. Beneficiaries. A gift to be expended for the benefit of the family of a des- ignated person does not ordinarily give him the right to con- trol such income as his own property.-*" And unless such gift specifically excludes adult members of the family, they have a right to support out of the income.'*^ On the other hand a gift to testator's widow and chidren for support, gives the wife a right to support from the in- come as well as the children. A gift of income to support testator's family at the home- stead' is ordinarily held to terminate when the family sepa- rate, and is not revived by the fact that some of the members, years after, live at the homestead once more.^® The direction to support the beneficiary may be condi- tioned on beneficiary's receiving the support at the designated place.^^ But such a condition is not to be inferred from an expression of the wish of testator that, if agreeable to all concerned, his parents and sisters were to live with his family after his death.^^ Under rather peculiar circumstances, a provision that tes- tator's aged and invalid sister and her daughter, who was act- ing as her nurse, should have a home in testator's house, and that the executors should attend to it, was held to imply a this case the court held that lows Leach v. Leach, 13 Sim. 304; the interest in remainder vested in Browne v. Paull, 1 Sim. (N. S.), the children subject to be divested 92; Scott v. Key, 35 Beav. 29L on their receiving support from 46 Brooks v. Raynolds, 59 Fed. their mother; subsequently the Rep. 923 : Gaston v. Brokaw (N. J. nother deeded the property, and, in Ch.) (1893), 26 Atl. 90G. determining whether the entire in- ^t Barlow v. Barnard, 51 N. J. terest passed, or whether the vested Eq. G20. interest of the children still re- *« Sheffield v. Parker, 158 Mass. maincd. it was held that the court 330. might enquire into the sufficiency 49 Hopkins v. Coleson, 158 Mass. and adequacy of support and edu- 407; (support to be furnished at an cation furnished, in order to de- old ladies' home), termine whether the will had been so Ward v. Ward, 95 Ala. 331 ; complied with or not). Forbes y. 10 So. 832; Tope v. Tope, 18 Ohio, Darling, 94 Mich. 621 cites and fol- 520. 700 LAW OF WILLS, direction to furnish at least the absolute necessities of life^ including food and fire-wood but not clothing.^^ A gift of income for the support and education of testator's children, or testator's family, or some similar expression, is ordinarily construed as a direction to keep the income to- gether in one fund, out of which the family is to be supported and educated, unless a contrary intention clearly appears.^^ §605. Whether income or support passes. One of the interesting questions presented by gifts of in- come for support is whether the entire income of the fund passes, or only so much thereof as is sufficient for the sup- port of the life tenant. This question becomes very impor- tant when there is a considerable excess of income over ex- penditure, and the question is presented whether it goes to the life tenant or passes as property of the testator. The general rule upon this subject is that, if the income is given absolutely, the fact that the purpose for which it was given is expressed as for the support and maintenance of testator's family does not cut down the gift of the entire income.^^ But where the gift is not of the income absolutely, but simply a gift of support and maintenance, or a gift of so much of the income as may be necessary for the support and mainte- nance, the beneficiaries have a right only to a reasonable and 51 //i, re Denfield, 156 Mass. 265, Jones, 45 S. C. 102; 22 S. E. 748; citing Gibson v. Taylor, 6 Gray (this construction is especially fa- 310; Willett v. Carroll, 13 Md. 459. vored when the income is adequate Contra, Nelson v. IMelson, 19 Ohio, for the support of the family as 282. a unit, but not for the support of (In this case, however, the pro- the respective members, vision was that the daughters of 53 See cases cited in preceding testator should have a "home" upon note. A gift of the income of a the farm devised to his son while trust fund or so much thereof as they were unmajried, and it ap- might be necessary to support and peared that the value of the support, educate A till she reached the age if the provision included support of 18, when the net income was to and maintenance, was greater than to be paid to her, was held to the income from the farm.) pass the accumulated income during 52 Bunch V.Ray (Ky.) , 49 S. W. minority. Burt v. Gill, 89 Md. 3.36: 20 Ky. L. P. 1.373: Gates v. 145. Pond. 12 O. C. C. 50: Beard v. LAW OF WILLS. 701 proper support out of the income, and the accumulations, if any, belong to testator's estate.^^ Under such a gift of sup- port the beneficiary has a right to the support and mainte- nance given even though he may be able ordinarily to sup- port himself and even to save money.^^ An amount paid for support may be increased when, under change of circum- stances, extra care and attention is necessary.^^ When a life tenant does not expend the entire income of the estate in which he has an interest, a question is pre- sented as to the proper disposition to make of such accumula- tion at his death. If he has a life estate, it was held that the income was his absolutely, and that any accumulations are the property of the life tenant, and at his death are to be distributed as part of his estate.^'^ If, however, the first tenant has not a life estate, but is merely given a proper and suitable maintenance and support out of the estate for his life, the life tenant only has a right to so much of the income of the estate as is reasonably necessary and proper for his support, and the accumulations will pass either under a re- siduary clause or as property not disposed of by, will.^^ And 54 Fearson v. Dunlop, 21 D. C. her determines her right to sup- 236; (a gift of income for support, port as long as such facts Con- or so much thereof as should be tinue. Taylor v. Elder, 39 O. S. needed). Brunson v. Martin, 152 535. Ind. Ill; Thome v. Allen (Ky.), 56 Schubart's Estate, 154 Pa. St. 49 S. W. 10G8; So. Ky. L. R. 230; (in this case a stroke of par- 1728; Wentworth v. Fernald, 92 alyisis greatly increased the care Me. 282; McKnight v. Walsh, 24 and trouble necessary to take care N. J. Eq. 498; Cox v. Wills, 49 N. of the beneficiary. J. Eq. 573. Thus a gift to testa- st Eldred v. Shaw, 112 Mich. 237; tor's wife for life of the "use and Swartz v. Gehring, 7 O. C. C. 426 ; maintenance" of certain realty, 2 0. D. 328; (in this case the gives her only a right to support will gave the life-tenant "the use out of such property. Jackson v. of all my real and personal prop- Jackson, 56 S. Car. 346; Esman v. erty during her life"). Esman', 18 Ohio C. C. 603; 10 58 Little v. Geer, 69 Conn. 411 Ohio C. D. 257. Wentworth v. Fernald, 92 Me. 282 55Holden v. Strong, 116 N. Y. Brady v. Brady, 78 Md. 461 471. Sehehr v. Look, 84 Mich 263 Contra, that if beneficiary is a Bramell v. Cole, 136 Mo. 201 woman, her marriage at least to one Steinmetz's Estate, 168 Pa. St. 171 who is financially able to support 702 LAW OF WILLS. under such a devise the devisee is not ordinarily entitled to the possession and control of the property devised unless this is especially given by the will; but his sole interest in ths property consists in the right to so much of the income as is sufficient for his support and maintenance.^^ Where beneficiary attempts to dispose of property by will, and the evidence makes it probable that the amount thus dis- posed of was received by her from sources other than the gift for her support, it will be presumed that she was disposing only of property of which she could make disposition.^*^ §606. Apportionment of income at death of beneficiary. If the beneficiary dies between the periods for the payment of income, it is now held that the income should, in such case, be apportioned, provided it is an absolute gift of in- come and not a gift of support merely.^^ But where testa- tor in his will especially provides that the income shall be paid semi-annually to such of the beneficiaries as shall be living at the time of the payment, the income can not be ap- portioned.^^ §607. Annuities in general. An annuity is a right to the payment of a specified sum of money at stated intervals, usually annually or at aliquot parts of a year.^^ One of the chief points of difference between a gift of in- come and an annuity is, that a gift of income fails if the prin- cipal of the estate is not sufiicient on investment to pay the income bequeathed f^ while an annuity does not fail be- cause the net income is insufficient to pay it in full, but is 59 Brady v. Brady, 78 Md. 461; Hemenway v. Hemenway, 171 Mass. Schehr v. Look, 84 Mich. 263. 52. «oMann v. Martin, 172 111. 18, 63 Dewey's Estate, 153 N. Y. 63; affirininf? 69 111. App. 501. Kearney v. Cruikshank. 117 N. Y. 61 Shattuck V. Balcom, 170 Mass. 95. It need not be paid annually. 245; Brombacher v. Berking, 56 N. Cummings v. Cummings, 146 Mass. J. Kq. 251. r,01; Pierce's Estate, 56 Wis. 560. 62 Nading V. Elliott, 137 Ind. 261; 64 Dewey's Estate, 153 N. Y. 63. 70S LAW OF WILLS. '" payaWe out of the principaL^^ Thus where an annuity ls given to a beneficiary, and testator directs his estate to be 30 invested as to produce such annuity, it is held that m case the income of the estate is not sufficient to pay the annuity in full the principal should be used to pay it.«« So where a testator directs that a certain fund be so invested as to produce a given annuitv, it is held that in case of a deficiency of the in- come from the fuod the principal may be drawn upon.^ Wliere, however, the annuity is, in specific terms, made pay- able out of the income of the estate, the deficiency can not be made out of the principal.«« Where it is doubtful whether testator intended to make a gift of income, or to create an an- nuity, the question is one of his intention, to be determine'l usually by finding from the will whether the gift was to be paid out of the principal in any event, or only the income 01 the principal was to pass.''^ Thus a gift of the income of a certain fund is not an annuity ;^« but a gift of "the whole in- terest and income" to a certain amount, with power to draw on the principal for deficiencies, was held to be an annuity. §608. Duration of annuities. If testator specifies in his will the time for which such an- nuity is to be paid, full effect, of course, is given to such ex- pression of intention.'^^ _ Thus, where testator provides that certain annuities shall be paid until his estate is settled, such direction must be fol- 65Additon V. Smith, 83 Me. 551; HI- 207; (in this case the annuity Merrit. v. Merritt, 48 N. J. Eq. was payable out of "the moneys so 1; Whitson V. Whitson, 53 N. Y. arising from the estate )^ 479- Curran v. Green, 18 R. I. ^9 Dewey's Estate, 153 N \ 63. '^' ToEartlett v. Slater, 53 Conn. e; Addibon V. Smith, 83 Me. 551; 102; Dewey's Estate, 153 N Y. Merritt v. Merritt, 48 N. J. Eq. 63. (Hence if testator s estate does 1- Cooper's Estate, 147 Pa. St. not amount to the sum indicated, 322- Curran v. Green, 18 R. I. the income must abate proportion- 329 ately. ) «; Boomhower v. Babbitt, 67 Vt. " Cushing's Will, 58 Vt 393. 72 Bates V. Barry, 125 Mass. 83; ^Is Machray v. Higgins, 8 Manito- Stephens v. Milnor, 24 N. J. Eq. ba, 29; Einbecker v. Einbecker, 162 358. 704 LAW OF WILLS. lowed, although the estate is held open for the collection of some outstanding claims.'^^ If testator does not specify in his will the time for which the annuity is to be paid, it is then ^ question of the construction of the whole will for the pur- pose of determining testator's intention. The weight of au thority and of sound reason is that, unless it appear otherwi^st, from the context, the annuity is payable during the life of the beneficiary.'^'* But where testator did not specify the time for which an annuity is to last, but bequeatlied a yearly income of $4,000 to his wife, to be paid from his estate by his executors, it was held, in view of the facts that no trustee was appointed and that the property was valuable but unproductive, that tes- tator intended the annuity to last only during administra' tion.'^^ g609. Apportionment of annuities. Common law and equity were opposed to apportionment oi annuities where the annuitant died between the days of pay- ment.'^^ An exception was always made to this rule in ju- risdictions when a widow who elected to take in lieu of dower was held to be a purchaser for value, in favor of annuities bequeathed in lieu of dower. '^'^ By statute in most jurisdictions correcting the arbitrary rule of equity and common law an annuity is apportionable where the annuitant dies between the days of payment.''^* A gift in trust, to pay to the divorced wife of testator an annuity is not revoked by her obtaining a judgment for ali- monv for the same amount.^^ 73 Batchelor's Estate, 119 Mich. (Mass.), 194; 39 Am. Dec. 716: 239. Kearney v. Cruikshank, 117 N. Y. 74 Grove's Trusts, 5 Jiir. (N 95. S.), 855; 1 Giff. 74; 7 W. R. 522; 77 Ciishing's Will, 58 Vt. 393. 28 L. J. Ch. 536; McDermott v. 78 Parker v. Seeley, 56 N. J. Eq. Wallace, 5 Beav. 142; 6 ,Tur. .547. 110. 75 Cleveland v. Cleveland, 89 Tex. 79 Maxwell v. Sawyeir, 90 Wis. 445; 35 S. W. 145. 352. (The alimony thus decreed 76 W'iggin v. Swett, G Met. ceased at testator's death.) I^W OF WILLS. 101 CHAPTER XXVIl. TESTAMENTARY TRUSTS OTHER THAN CHARITABLE. §610. Elements of a trust. A tnist is the general name for all the estates and prop- erty interest which are recognized and enforced by a court of equity but not by a court of law. In a testamentary trust, the legal title of the property devised or bequeathed passes to one who is known as the trustee; certain property rights in the property thus devised to a trustee are given to another who is known as the cestui que trust. The legal title during the continuance and existence of a trust is, therefore, separated from the equitable. The ordinary classification of trusts into express and im- plied is of comparatively small importance in the law of wills, since, in almost every case, it is merely a question of the construction of testator's will and the determination of his intention thereto. "In order to constitute a valid trust, three things must concur: words sufficient to raise it, a certain sub- ject and a definite object." ^ This propositon, often repeated in substantially the same language as here given, means, when applied to testamentary trusts: First, that testator must, in his will, use the language as shows his intention to pass the legal estate to the trustee but 1 Coulson V. Alpaugh, 163 111. 298: Hill v. Page, — Tenn. — (1896) ; Mills V. Newberry, 112 111. 123; 36 S. W. 735. 706 LAW OF WILLS. the equitable interest to the cestui que trust? Thus if tes- tator shows his intention that the trustee shall hold the prop- erty for his own benefit, no trust is created; for the legal title must be separated from the equitable interest in order to constitute a trust.^ Second, except in case of charitable trusts, which will be discussed hereafter,^ testator must, by his will, indicate a beneficiary to whom the equitable interest is to pass in terms so definite and certain that he can thereby, with the aid of extrinsic evidence, be identified. This rule is not peculiar to testamentary trustees, but ap- plies equally to the indentifieation of legatees and devisees. It finds a special application, towever, in the law of testamen- tary trustees, since it is in the attempt to create trusts that testators most frequently fail to identify the beneficiary with sufficient certainty. Except in charitable trusts, if it is not possible, with the aid of admissible extrinsic evidence, to identify the beneficiary properly, it is, of course, impos- sible for a court of equity to enforce the trust, and the devise will, on that account, be void.^ Third, the remaining necessary element of a valid trust is that the property conveyed by the will must be described with such certainty as is necessary in other bequests;^ and furthermore, that the purpose for which the trust is created be set forth in the will in such clear and definite language that a court of equity can enforce the wishes of the testator." Thus a jrift in trust of "what remained" after a life ten- ant, with power of disposition of the fee to the extent neces- 2 See Sees. 611 to 614 inclusive. 199; People v. Powers, 147 N. Y. Hill V. Page, — Tenn. — (1896; 104; Johnson v. Johnson, 92 Tenn. 36 S. W. 735. 559; 22 L. R. A. 179; 36 Am. St. 3/J^ re Denfield, 156 Mass. 265; Rep. 104; Fifield v. Van Wyck, 94 Rose V. Hatch, 125 N. Y. 427 ; Hop- Va. 557. kins V. Kent, 145 N. Y. 363; Mimms e (See Sees. 48 and 822.) V. Macklin, 53 S. Car. 6. 7 Coulson v. Alpaugh, 163 HI. 4 (See Sees. 639-655) 298; Tilden v. Green, 130 N. Y. 5 Wlieelock v. American Tract So- 29 ; 14 L. R. A. ; Beurhaus v. ciety, 109 Mich. 141 ; Tilden v. Watertown, 94 Wis. 617 ; 69 N. W. Green, 130 N. Y. 29; 14 L. R. A. 986. 29: Fairchild v. Edson. 154 N. Y. LAW OF WILLS. 707 sary for her support had exercised such power, is sufficiently definite;^ as is a gift of a sum for several charitable pur- poses which does not apportion the amount to be used for each purpose, all being valid.^ If the purpose of the will does not appear with sufficient certainty, and it is impossible for a court of equity to deter- mine whether it is complying with the will of testator or not, the trust will be declared void.^" It might be suggested that a fourth element to a valid trust is a competent trustee. In most cases, however, this, while it may be very desirable, is not essential. If the in- tention of testator to create a trust was present, and the other elements to a valid trust concur, and the trust thus created is not discretionary with the trustee, equity will not suffer the trust to fail for want of a trustee, but will appoint a trustee in order to prevent the failure of the trust.^^ If, however, the trust is one which can be carried into effect only by the exercise of the personal discretion of the trustee, this trust will, ordinarily, be held not to be exercised by any per- son other than the trustee named in the will; and, accord- ingly, if for any reason such trustee can not take, the trust must fail.^^ A trust for an unlawful purpose will never be implied Avhere the language of the will can be fairly construed to bear any other construction.^^ However, if testator's intention to create a trust is clear, full effect must be given to such in- tention ; even if the trust thus created must be declared unlaw- ful and ineffectual.^* Since the intention of the testator is to be deduced from the 8 Coulson V. AJpaugh, 163 111. court would not allow a trust to 298_ fail for want of a trustee." Keith 9 Beurhaus V. WatertowTi, 94 Wis. v. Scales, 124 N. Car. 497. 617 ; 69 N. W. 986. ^~ See Sec. 619. 10 See Sec. 621. ^^ Greene v. Greene, 125 N. Y. 11 Keith V. Scales, 124 N. Car. 506; see Sec. 465. 497; John's Will, 30 Ore. 494; 36 i* Cottman v. Grace, 112 N. Y. L. R. A. 242; Frazier v. St. Luke's 299; McHusrh v. McCole, 97 Wis. Church, 147' Pa. St. 256. "The 166; 40 L. R. A. 724. 708 LAW OF WILLS. will as a whole, it follows that the use of the words "in trust'' is not conclusive in determining whether a trust has been created.^ ^ §611. Precatory words not creating trust. In determining the nature and existence of trust estates by will, the difficulties presented may be grouped roughly un- der two heads: First, It is often difficult to ascertain whether the will gives the devisee or legatee an absolute interest, or whether the property is given in trust for the benefit of another. Second, it is often equally difficult to detennine whether the property . given is given to the beneficiary absolutely, both legal and equitable title passing, or whether a trustee is in- terposed who is to take legal title. In determining whether the testator intended to give the devisee or legatee named an absolute estate for his own bene- fit, or whether he intended to make the devisee or legatee a trustee, merely, for some designated beneficiary, the most serious difficulty is presented by the use of precatory words. Testators often add to a gift words which show their wishes and desires on the one hand or their suggestion and advice on the other as to the use which shall be made of the property given. In determining whether these words create a trust or not the intention of testator is always to be sought, an in- tention which is especially difficult to ascertain, because the testator often does not know exactly what sort of an estate he wishes to create. If the language used by him in the will shows that the beneficiary is left with discretion to make use of the advice given him or to disregard it, the precatory Avords are held not to create a trust.^^ Thus a suggestion or 15 Davis V. Boggs, 20 0. S. 550. ib Lambe v. Eames, L. R. 10 Eq. In this case a devise was made to 267 ; In re Hutchinson, L. R. 8 Ch. testator's wif6 in trust. It ap- Div. 540; Mussoorie Bank v. Ray- peared from the whole will that the nor, L. R. 7 App. Cas. 321 ; Par- beneficial interest was to pass to nail v. Parnall, L. R. 9 Ch. Div. the wife, and the words "in trust" 96; Eaton v. Watts, L. R. 4 Eq. were accordingly rejected. 151; Meredith v. Heneage, 1 Sim. LAW OF WILLS. 709 recommendation as to the disposition wliich the devisees shall make of their property upon their death which does not go to the extent of controlling their discretion, is held not to create a trnst.^^ So where testator expresses a request or makes a suggestion as to the disposition at the death of the de- 542; Sale v. Moore, 1 Sim. 534; Hoy V. Master, 6 Sim. 568; In re Adams, L. R. 27 Ch. Div. 394; In re Williams (1897) 2 Ch. 12; In re Hamilton (1895) 2 Ch. 370; 12 Rep. 355; Mills v. Newberry, 112 111. 123; Coulson v. Alpaugh, 163 111. 298; Randall v. Randall, 135 111. 398; Pellizzaro v. Reppart, 83 To. 497; Mitchell v. Mitchell, 143 Ind. 113; Dravo v. Seebolt, — Ky. -- 1896; 33 S. W. 1106; Pratt V. Sheppard, etc. Hospital, 88 Md. 610; Halsey v. Convention of P. E. Church, 75 Md. 275; Aldrich v. Aldrich, 172 Mass. 101; Durant v. Smith, 159 Mass. 229; Fairchild v. Edson, 154 N. Y. 199; affirming 77 Hun, 298; rehearing refused, 154 N. Y. Appendix, 38 ; Clay v. Wood, 153 N. Y. 134; Crane's Will (N. Y.), 54 N. E. 1089, Sturgis v. Paine, 146 Mass. 354; Davis v. Mailey, 134 Mass. 588; Barrett v. Marsh, 126 Mass. 213; Whelen's Estate, 175 Pa. St. 23; Warner's Estate, 130 Pa. St. 359. (A clause that testator would prefer not to have a division made of his property by the heirs until a certian person should arrive at age, was held not to restrict their division.) Good v. Fitchthron, 144 Pa. St. 287; Bowlby v. Thunder, 105 Pa. St. 173; Hopkins v. Glunt, 111 Pa. St. 2S7: Pennock's Estate, 20 Pa. St. 208; Hill v. Page, — Tenn. — 1896; 36 S. W. 735. "This was intended by the tes- tator, it seems to us, to express his reason for the gift to his wife, and his conf.dence in her, and not to cut down or affect the absolute character of the gift which he had previously made to her." Aldrich V, Aldrich, 172 Mass. 101; Durant V. Smith, 159 Mass. 229. 17 7/1 re Hamilton (1895), 2 Ch. 370; 12 Rep. 355, affirming (1895) 1 Ch., 373; 64 L.J. Ch. N. S., 365; (a trust not created by the words, "I wish them to bequeath the same equally between" certain families "in such mode as they shall con- sider right"). Whitcomb's Estate, 86 Cal. 265; (the word "recom- mend" held not to create a preca- tory trust). Hill V. Page — Tenn. — 1896; 36 S. W. 735; (a gift to A "believing she will do justice between her relatives and mine at her death" held not a trust). Nunn V. O'Brien, 83 Md. 198, 1896; 34 All. 244; Aldrich v. Aldrich, 172 Mass. 101; Eberhardt v. Perolin, 49 N. J. Eq. 570, reversing 48 N. J. Eq. 592 ; ( to give A an -amount "at her Plaisure if my wife feel dispose to do so, but it is not obligatory to increase the donation" - to B, held optional as to A and B). Tabor v. Tabor, 85 Wis. 313. (An ex- pression of testator's confidence that his wife, the devisee of his prop- erty, will have it distributed among their children in such proportion as would be just and right, and fol-j lowed by a clause providing that! this expression on his part should not be interpreted as limiting her right of ownership or power of dis- tribution, held not to create a trust. ) 710 LAW OF WILLS. visee of such property as the devisee does not dispose of during liis lifetime, such words do not create a trust.^* A suggestion that devisee may, at his option, make gifts to certain designated persons or corporations, or increase gifts made by testator, does not create a precatory trust, where the direction is so as not to restrain the discretion of the bene- ficiary.^^ §612. Precatory words creating trust. Where, however, the will shows that the intention of testator is that the provision to be made for the persons designated is not left to the discretion of the devisee, but is to be carried out at all events, the fact that he uses words milder than those of absolute command, such as "wish,", "desire," or "in full confidence that" and the like, does not prevent the gift from being in trust, and the devisee will be held as a trustee for the purposes indicated,^*' 18 Toms V. Owen, 52 Fed. Rep. 417. (A direction that the prop- erty undisposed of at the death of testator's wife, the devisee in the will, should be willed and devised to certain named persons, followed by a provision that if any cause makes it unwise in her judgment she need not carry out such wish, does not create a precatory wish.) Bryan V. Milby, 6 Del. Eq. 208; 13 L. R. A. 563; 24 Atl. 333; Bills v. Bills, 80 lo. 269 ; 8 L. R. A. 696 ; Durant v. Smith, 159 Mass. 229; (nor does a gift for life with power to expend the principal, and a remainder over to another, necessarily create a trust for the benefit of such other ) . Mer- rill V. Hayden, 86 Me. 133; Ed- Igar V. Edgar, 26 Ore. 65. 19 Eberhardt v. Perolin, 49 N. J. Eq. 570, reversing 48 N. J. Eq. 592 ; ( a recommendation to testa- tor's wife, the residuary devisee, to give a sum to a given church equal to an amount given in tes- tator's will, providing, however, that it is "at her Plaisure if my wife feel dispose to do so, but it is not obligatory Also to increase the, donation" to another benefi- ciary, was held not to impose the increase of either gift upon the wife). Kelemen's Will, 126 N. Y. 73; Clark v. Hill, 98 Tenn. 300; 39 S. W. 3.39; Hunt v. Hunt, 18 Wash. 14. 20 Abend v. Endowment Fund Commission, 174 111. 96, affirming 74 111. App. 654 ; Ingraham v. In- graham, 169 111. 4.32, 471, citing Colton V. Colton, 127 U. S. 300; Bronson v. Strouse, 57 Conn. 147 ; Hunt v Fowler, 121 111. 269; John- son V. Billups, 23 W. Va. 685; Blanchard v. Chapman, 22 111. App. 341; Cox V. Wills, 49 N. .1. Eq. 130, 573; Forster v. Winfield, 142 N. Y. 327; Ide v. Clark, 5 0. C. C. 239; Oyster v. Knull, 137 Pa. St. 448. LAW OF WILLS. 711 Thus a bequest to A reciting that testator has entire confi- dence that A will distribute the property among certain per- sons, will create a trust for their benefit unless the context of the will shows that testator intends to leave it to A's dis- cretion whether to make such distribution or not.^^ And where such a direction in the will is given, and the devisee , does not make any provision for the person indicated, equity ^-^ will make suitable provision out of the estate of testator.^^ In a recent Connecticut case testator had given legacies to his wife to help her brothers and sisters as she might see fit, and the remainder of the property thus given to go, at her death, to A for the same purpose, unless the wife saw fit to dispose of the remainder by will, in which case it was provided that "then they go as she wills." It was held that this did not authorize the wife to defeat the trust, but merely gave her power to appoint some other person than A as her succes- sor in the trust.^^ Where the will shows an intention to provide for a certain son, the language will be construed, where possible, as creat- ing a trust, even though, as punctuated, it may seem to leave the gift in the discretion of the trustee.^^ §613. Words showing the motive for the gift. Words, while possibly not strictly precatory, but which should be considered in connection with precatory words, are those which explain testator's motive and purpose in making a gift. It is often difficult to determine whether these words 21 Blanehard v. Chapman, 22 111. would make a suitable provision for App. 341 ; Cox V. Wills, 49 N. J. him, and that a provision of Eq. l.SO, 573: Forster v. Winfield, $10,000 out of an estate worth 142 N. Y. 327. $86,000 was not unreasonable.) 22 Murphy v. Carlin, 113 Mo. 112. 23 Dexter v. Evans, 63 Conn. 58. (A wish was so expressed as to be 24 Black v. Herring, 79 Md. 146. obligatory that testator's wife (A gift after paying a given de- should make a suitable provision vise to another, "should they for one raised a member of testa- (trustees) think proper so to do, tor's family, if he should continue to pay over from time to time" to to be a dutiful child. Testator's the son, was held to create a trust wife died without making any such for the son.) provision ; it was held that euity 712 LAW OF WILLS. create a trust or not. The test as laid down by the courts is a simple one, the application alone being difficult. If the will clearly shows that the use of the property indicated is merely the motive which leads testator to make the gift, and if the beneficiary is not limited in his discretion as to the use which he is to make of it, the gift does not impose a trust. Thus a gift to testator's wife to support herself and her children is generally held to give an absolute estate to the wife, free from any trust for the benefit of the children, this being merely testator's motive in making the gift.^^ A devise to testator's wddow of all his personal property, for her use and the maintenance of the minor children, gives her the personal property absolutely as legatee and not as executrix, though she is appointed executrix in the same will and given power as such administratrix to sell real estate.^^ So a devise to one for his own use during his lifetime is held to be an absolute gift and not a trust.^'^ Even where a gift to one for the support of himself and his family is held not to be a trust, it has been held that the chil- dren in the family who were to be supported by the benefi- ciary, though they can not assert any interest as against the beneficiary, may do so as against his creditors by having a reasonable part of the income set apart for their support.-^ Where, however, the will shows clearly testator's intention to charge the property with the support and maintenance of the 25 Pellizzaro v. Reppart, 83 lo. cate the children is also construed 497; Zimmer v. Sennott, 134 111. as not creating a trust). 505; Randall v. Randall, 135 111. The case of Forbes v. Darling, 398; Jones v. Jones, 93 Ky. 532; 94 Mich. 621, is at variance with Lloyd V. Lloyd, 173 Mass. 97; Small the cases cited in this note, in that V. Field, 102 Mo. 104; Elkinton the language showing testator's in- V. Elkinton (N. J. Eq.). 18 Atl. tention in making the gift was so 587 ; Cressler's Estate, 161 Pa. St. strong as to create a trust. See Sec. 427; Mazurie's Estate, 132 Pa. St. 605. 157; Paisley's App. 70 Pa. St. 153; 26 Heppenstall's Estate, 144 Pa. Citizens' Bank and Trust Company St. 259. V. Bradt (Tenn.), 50 S. W. 778; 27 .Justus' Succession, 45 La. Wilmoth V. Wilmoth, 34 W. Va. Ann. 190; Roundtree v. Roundtree, 426; Seamonds v. Hodge, 36 W. Va 26 S. C. 450. 304; (and of course a devise to 28 Allen v. Furness, 20 Ont. App. a husband to provide for and edu- 34. 713 LAW OF WILLS. children and that the furnishing of snch support was no lett to the discretion of the devisee, a trust is held to be ereated.- In a recent South Carolina case a gift to a parent, in order to enable him to furnish a borne and support for his children, was said to be a "quasi trust.'"" , ,, , In an Illinois ease a provision, "I now place the house in the hands of the administrators for the benefit of my daug^iter and my son for them and their children should they have any," was held to be a gift to the son and daughter for life, one-half to each, with remainder over to their children. A devise of the residue of testator's estate to the executors from which to pay testator's debts by sale, mortgage, collec- tion of rents or in any other way that they may see fit, created a triist.^^ §614. Words creating an express trust. An express trust may be created in a will by any form of words which shows testator's intention to give the legal inter- est in the property devised, to c«ie, and the equitable interest in the same property to another.^^ ..S„eerv.Stutz,!l3Io. 62;Con. lecting debts from decedent's es- 7'.i::^^^^:^^^^<^- ""h„„ v. Honow., .S 00 t 333. Fo..es v. Da.Ung. U Mic. .>«■, --P-'J; ^f -^,:;^,J^: ^^^' . f +v,p oa«Ps in Fuller V. Fuller, 84 Md. 475; Black A comparison of the cases in ^^^^ ^^11,, ^. which no trust is held to be created ^ « "ng, 79 M. , ^ with this case in which a trust l^^^'^'^'l'/l '..7. Traphac^en MS been held to be created, will ^^'^^^ ^^ ^^^.'^Jg ^o^T show that, while courts agree upon ^- ^f^' *^ ^- ^- f_^ ^ ' 346. the general rule for determining the ward v. James, 115 N. Y 346, rt^tJnofthe^rdsusedin ---. -^f ^s "a t "To Howe : Gregg, 52 S. C. 88. vi!e of property to the daughter of 31 B.Tclay V. Plfu, 170 111. 384. testator, appointing trustees to take 32Seitzinger's Estate, 170 Pa. St. possession and control of the prop- 531 Hence, the creditors of the erty and apply the income to her Estate may ei^force such trust after support and education, un il, n the t'r fixed bv statute for col- their judgment, she is compet^t to 714 LAW OF WILLS. A gift of property in trust for a named beneficiary for liis life, and at kis death the remainder to go to persons designated, creates a trust only during the life estate, the legal and equi- table interests passing together to the remaindermen.^^ Where the income is given for life to a beneficiary and the executors are directed to deposit the principal with a se- curity company for investment, unless they invest it them- selves, a trust is create d.^^ A gift of the residue of testator's estate to certain named trustees to administer it for ten years and then account for it to the residuary legatees, creates a trust, and the legatees do not acquire any legal title except through trustee.^^ But where the only duty of the trustee was to receive the money, and pay it at once to the beneficiaries, it was held to be proper for the executor to pay the money to the beneficiaries, ignoring the trustee.^^ control it, in which case they may surrender it to her, creates a trust. The legal title is, therefore, in trust- ees until they surrender it to the daughter.) Meek v. Briggs, 87 lo. CIO. (So a bequest in trust for the niece of testator, the income to be paid to her for life and the remain- der over, with a direction that if she should desire her income to be increased by an annuity, the trust- ee could, at such request, invest part of the fund in such annuity, was held to create a trust, and not authorize the trustee to pay the trust fund directly to the niece.) Lejee's Estate, 181 Pa. St. 416. (So where testator, in one clause of his will, bequeathed property to A, and in a subsequent clause di- rected that the property thus be- queathed be held by a trustee to in- vest it and pay the income to A during his life, and after his death the principal to be held "in trust to and for the only proper use and benefit of" A's children bv his first wife, it was held that A took merely an equitable life estate, in which his second wife had no interest whatever.) Fetherman's Estate, 181 Pa. St. 349. (And where testator gave all his property by will to his son, and pro- vided that the executor should in- vest this property and use the in- come for the son's support during his minority, it was held that a trust was thereby created, and that the executor in his trust capacity, and not the guardian of the minor, had a right to the possession of the trust funds.) Chandler v. Mills (N. J. Eq.) (1897), 37 Atl. 603. 34 Baxter v. Wolfe, 93 Ga. 334; Charleston, etc. By. Co. v. Hughes, 105 Ga. 1 ; Simms v. Buist, 52 S. C. 554. 35 Pinney v. Newton, 66 Conn. 141. 36 Simpson V. Molson's Bank (1895), App. Cas. 270; 11 Rep. 427 P. C. 37 Hamlin v. Mansfield, 88 Me. 131. 715 LAW OF WILLS. A provision that a certain firm of attorneys shall receive the rents and attend to the "minor details" does not create an express trnst.^^ . A R-ift to one which in itself wonld he absolute is not treated as a trnst, hecanse in the same will other gifts m trnst are made to the same beneficiary.^*^ A gift in terms absolute is not considered as a trust because of a direction as to the disposition of the income to the bene- ficiary.^° , . ^ j. -,. A o-ift of all of testator's property to A m trust for his childr^'en, the remainder of such estate to A for life,^ gives A a life estate in testator's property free from the trust. §615. Dry trusts. In states in which the statute of uses is in force, words which are intended to create a trust in which no duties of any kind are imposed upon the trustee can not be given the eftect intended by testator. .This form of trust fs known as a pas- sive trust, or sometimes a dry trust, and under the statute the legal title vests in the cestui que triist}^ Thus a gift to A to be held in trust for the issue of his body gives A no bene- ficial interest and the trust is at once executed on the birth as Toland v. Toland, 123 Cal. 140. though there was a P^^-.^^^';;;* 30 Jackson v. Thompson, 84 Me. the interest should be paid to the 44. (A direction to pay certain church as it became due ) legacis to testator's daughter, to ^^ ^-Z^"' f .^f". vt 178 pay testator's son only the income -Buck v. Sn.th, ^0 Vt^ 1 8. of $5,000 during his natural life, (In this case the two gi t are in Tndi there should be a surplus left consistent, taken separately. The to d vide the remainder among all only posible method of reconci ing of t tator's children, was held to them is to treat A's as an absoKite create a trust for the benefit of life-interest with an equitable re- testator's son in the $5,000, but mainder to th. '^^'^^^^-^ to give him a shar. of the surplus - In re ^--^f '/f ^%^- ^f '. absolutely) Hopkins v. Kent, 145 N. Y. 363, ^ Rote V.' Warner, 17 Ohio C. C. Robinson v. OstendorfF, 38 S. Car. 66; Mims v. Maoklin, 53 b. Car. b; 40 Rhodes V. Rhodes, 88 Tenn. 637. Sims v. Sims, 94 Va. 580 ( 18n7|^; (Thus a bequest of a bond to a 27 S. E. 436; Schinz v. Schmz, 90 church was held to be a direct gift, Wis. 236. 716 LAW OF WILLS. of issue.^^ But where certain active duties are imposed upon the trustee, as to take charge of the realty in certain contin- gencies, the trust is not a dry one.^^ §616. Effect of failure of trusts. Where testator uses words which clearly show an intem- I tion to benefit the cestui que trust, and as a means to that end he attempts to create a trust which subsequently proves im- possible of literal fulfillment, it is held that the intention of testator will be given effect by treating the gift as an ab- solute one, free from any trust.''^ Testator by will created a trust for life of A, income pay- able to A for life, then to B, daughter of A. The will showed that the trust was created to protect B's .interests. It was held that on B's conveying all her interests in the trust fund to A, Awas entitled to the possession of the corpus of the property, discharged from the trust. '^^ This is a particular application of the doctrine of general and particular intent."*'^ In the cases cited the paramount intention of testator was to benefit the cestui que trust, hence the particular intent, that of accomplishing this result by means of a trust, was disregarded in order to enforce tlie paramount intent. Accord- ingly in other cases, where the purpose of the trust, as ex- pressed in the will, fails for any reason, the' devise as a whole fails or a resulting trust for testator's heirs or next of kin arises. Where the event becomes imposible, the trust ordinarily terminates at once.^^ Thus a trust to last until the marriage of A, terminates upon the death of A ;^^ and a trust to be ex- 43 Mims V. Macklin, 53 S. Car. 6. trust, where the property can not 44 People's Loan & Exchange Bank be planted to advantage.) Neely V. Garlington, 54 S. Car. 413; 71 v. Phelps, 63 Conn. 251; Mansfield Am. St. Rep. 800. v. Mix, 71 Conn. 72. 45 /n re Bowes (1896) 1 Ch., 507. 46 Sharpless's Estate, 151 Pa. St. (A gift of 5,000 pounds in trust 214. to benefit the devisees of real prop- 47 See Sec. 463. erty by planting trees upon the prop- 48 Mansfield v. Mix, 71 Conn. 72. erty, was treated as an absolute 49 Toner v. Collins. 67 To. 360 ; gift to the devisees, free from any Baker v. McAden, 118 N. Car. 740. 717 LAW OF WILLS. '^* ercised in the personal discretion of a trustee terminates upon the death of such trustee.^*^ Where property is devised in trust during the minority of testator's son and afterwards if he should continue to use intoxicating liquors to excess, it was held that on testator's death after such son came of age the legal title to the prop- erty given passed to the son.^^ §617. Resulting trusts. Where the testator creates a trust evidently not for the ben- efit of the trustees, but for the benefit of others, and does not designate the cestui que trust, the trust is held in such cases to be for the benefit of testator's heirs or next of kin.^^ §618. Duration of trusts. Where testator indicates by his will a specific duration of the trust created in the will, his intention, if not in violation of the rule against perpetuities, will be given effect and the trust will continue for the time indicated.^^ Where the trust is expressly given to continue for the life of the trustee, such effect will be given to it.^^ Where testator does not specifically indicate the time for which the trust is to continue, his intention must, if pos- sible, be deduced from the entire will. Where the evident purpose of a trust is the accomplishment of the particular 50 Neeley v. Phelps, 63 Conn. 251 ; Hardy, 120 Ma.ss. 524 ; Heidenheim- Hadley v] Hadley, 147 Ind. 423; er v. Bauman, 84 Tex. 174; Sims v. Mobley V. Cumniings, 35 S. Car. Sims, 94 Va. 580. ,, ^ « ,Qj 53 Hamilton v. Rodgers, 38 O. b.. 51 Mansfield v. Mix, 71 Conn. 72. 242. (Hence, where the trust was In some jurisdictions this doctrine to terminate with the termination does not apply in cases of chari- of certain annuities, a provision for table trust. See Sec. 655. furnishing support to others does 52 In re Brown, 8 Manitoba, 391 ; not extend the period for which the Jacob y. Jacob, 78 Law T. Rep. trust is to exist. ) 825. affirming 78 Law T. Rep. 451; ^^In re Hudson, 13 Rep. 546. Abell y. Abell, 75 Md. 44 ; Sears y. 718 LAW OF WILLS. object, the trust continues, if possible, to exist until such, ob- ject is accomplished.*^^ Thus where a trust is created for controlling property until testator's children reach a certain age, when the property is to be divided among the children, it is held that the truest does not terminate of itself upon the arrival of testator's children at such age ; but continues until the trustees have exercised the power given them by dividing and distributing the prop- erty.5® On the other hand, the fact that a fee is given to trustees does not show testator's intention that the trust estate shall continue after the active duties connected with the trust have been accomplished.^"^ Where the purpose of the creation of the trust is to pro- vide the support of one for life, the trust thus created will, 'prima facie, continue for the life of such beneficiary, and will not be terminated before that time by the death of the remaindermen.^^ On the death of such beneficiary the trust property will vest in the remaindermen.^^ Thus a trust, the income to be paid to certain named persons for life, or their descendants respectively, was held to create a trust for the lives of the original takers only, the gift to their de- scendants being merely substitution al.^° A trust for the benefit of certain named persons for their respective lives with remainder over terminates upon the death of any beneficiary, as to his share of the estate, and as to that alone.^^ While, if the trust is so created as to last during the life of several persons, or to the survivor of them, the death of any number of the persons indicated less than all does not affect the duration of the estate.^^ 55 Grand Prairie Seminary v. Mor- 740 ; Hopkins v. Kent, 145 N. Y. gan, 171 III. 444, affirming 70 111. 363; Pendleton v. Bowler, 27 O. App. 57.5; Abell v. Abell, 75 Md. L. J. 313 44; Marshall's Estate, 147 Pa. St. so /„ re Morgan (C. A.) (1893), 77. 3 Ch. 222. 56 Potter V. Couch, 141 U. S. ei Tarrant v. Backus, 63 Conn. 296; Marshall's Estate, 147 Pa. St. 277; Smith v. Hall, 20 R. I. 170. 77. 62 Abell V. Abell, 75 Md. 44 : Shat- 57 Abell V. Abell, 75 Md. 44. tuck v. Balcum, 170 Mass. 245; ssAsche V. Asche, 113 N. Y. 232. Comly's Estate, 136 Pa. St. 153. 59 Baker v. McAden, 118 N. Car. 719 LAW OF \VILI.S. A gift to certain designated persons to be held in trust until the happening of a certam event, becomes absolute upon the happening of such event.*'^ A -ift in trust for A for life, and on his death to his chil- dren by his first wife, gives A an equitable life estate only, in which his second wife has no interest as widow or as ex- ecutrix.^* . . , When the will is not specific as to the exact duration ol the estate given to the trustee, the law presumes that the testa- tor intended to give the trustee an estate of such duration as would make it possible for him to execute the duties im- posed upon him by the trust.^^ Thus a direction t^iat the trustees sell certain property, and that, until such sale, they lease it and control it, vests the legal title of the property m the trustee until the accomplishment of the trust. So a trust which, by the terms of its creation, may amount to a fee simple, passes an estate of inheritance to the trus- tee.«^ On the other hand, a mere power of sale does not vest the leo-al title in the donee of the power as a trustec'^^ It may be laid down as a general rule that a devise to trustees, even in general terms, will create no greater estate in such trustees than is necessary for the purposes of the trust.^^ §619. Discretionary power of trustees. A trust mav be so created by the terms of the will that the trustee, at his' discretion, may give or withhold the trust funds 63 /n re Bogle (Ch.), 78 Law e. Fetterman's Estate, 181 Pa. St. Times Rep. 457. (Property given 349. c- r^ «in in trust to become absolute if bene- ^5 Meeks v. Br.ggs, 8 . lo. 610^ ficiarv should have two children -Crane v. Bolles 49 N. J Eq^ who Attain the age of twenty-one.) 373; Webster v. Thorndyke, 11 Mackrell v. Walker, 172 Pa. St. Wash. 390. Contracts 154- Fetherman's Estate, 181 Pa. ^^ In re Townsend s Contracts St. 349; /nr« Clarke, 19 R. I. 110; (189.5) , 1 Ch. 71G. 33 Atti. 585 (a trust to last till es Steinhardt v. Cunningham, 130 majority of either child) ; Meacham N. Y. 292 i .. W Y V. Graham, 98 Tenn. 190 (1897), 39 69 Tompkm's Estate, 154 N. Y. S. W. 12; Mason v. Broyles, — 634. Tenn. — (1896) ; 38 S. W. 92. 720 LAW OF WILLS. in the performance of the trust. Such a trust is upheld in some jurisdictions.^*^ The discretionary power given to the trustee will not, however, be so construed as to allow the trustee to ignore another and independent provision of the will,''^ nor can a discretion, to be exercised if circumstances should alter, be exercised where there was no change of cir- cumstances.'^^ If the trust created by the will is dependent for its exer- cise upon the personal discretion of the trustee, it is generally held that such a trust must be terminated upon the death or resignation of the trustee, since the testator allowed the ex- ercise of this discretion because of his reliance on the judg- ment and discretion of the trustee.'^^ But where the intention of the testator is evidently that the trust shall continue, sub- ject to modification at the discretion of the first trustee, it is held that upon his death the trust does not terminate, but only the discretionary right of modification.'^^ But where a dis- cretionary power is expressly vested in certain trustees and their successors, such discretion is not personal to the first named trustees."^^ 70 Gichrist v. Eduoational Trust port of B according to his condition (1895), 1 Ch. 3G7; 66 L. J. Ch. N. .in life, was held to be sufficiently S. 298; In re Percy, 65 L. J. Ch. N. certain.) S. 364 ; In re Dudgeon ( Ch. ) , 74 ti National Bank of Commerce v. Law T. Hep. 613; Delmar's Char- Smith, 17 R. I. 244. itable Trust (1897), 2 Ch. 163; 66 "Morgan v. Halsey, 97 Ky. 789. L. J. Ch. N. S. 555 ; Security Com- 73 Hadley v. Hadley, 147 Ind. 423; pany v. Snow, 70 Conn. 288; Cre- Gambel v. Trippe, 75 Md. 252; 15 rar v. Williams, 145 111. 625, Had- L. R. A. 235; Baker v. McAden, ley V. Hadlej% 147 Ind. 423; Rotch 18 K C. 740; Young v. Young, 97 V. Emerson, 105 Mass. 431; Weber N. C. 132. V. Bryant, 161 Mass. 400; Baker 74 Security Company v. Snow, 70 V. McAden, 118 N. C. 740; Good- Conn. 288. (Thus where testator ale V. Mooney, 60 N. H. 528; 49 made his wife a trustee to pay the Am. Rep. 334; Murphy's Estate, income to testator's daughter as the 184 Pa. St. 310; Kinike's Estate, wife should think best for the inter- 155 Pa. St. 101 ; Sawtelle v. With- est and welfare of the daughter, it am, 94 Wis. 412. The fact that the was held that upon the death of the performance is left in the discre- mother, the succeeding trustee had tion of the trustees does not make no discretion to withhold the daugh- the trust void for uncertainty. ter's share.) Cresap v. Cresap, 34 W. Va. 310. 75 Security Co. v. Cone, 64 Conn. (A devise to A in trust for the sup- 579. LAW OF WILLS. 721 Where the duties of trustees are specifically indicated by the will, and no room is left- for the exercise of discretion, the death of the first trustee does not terminate the trust; and on the failure of the trustees indicated by the will, equity will appoint a trustee to carry the provisions of the trust into executionJ^ In other jurisdictions, however, the validity of a trust to be exercised at the discretion of the executor acting as trustee, or of a regularly named trustee, has been denied. The grounds given for this position have been twofold : first, that such a trust would be void for uncertainty since it could not be enforced or directed by a court of equity. Such a reason, of course, applies with somewhat less weight to charitable trusts than to other trusts, especially where the discretion of the trustee is to be exercised in the selection of the beneficiaries.'^''' The second ground of attack is that this form of devise really leaves it to trustee to make a will for the testator after testator's death. This objection seems inconsistent in view of the fact that the validity of powers created by will is un- questioned.'^^ But whether strictly consistent or not, the courts in many states have on one or both of these grounds declared that trusts were void where the selection of the ben- eficiaries and the plan and execution of the main scheme was left in the discretion of the trustees.'^^ §620. Parol trusts. In some cases a devise is made absolute on its face, and it is sought, by evidence of an extrinsic oral agreement between the testator and the devisee, to hold the devisee as trustee for the beneficiary indicated by such agreement. To enforce such a trust is apparently to disregard both the Statute of Wills and the Statute of Frauds. And it is held in some cases 76 Hemphill's Estate, 180 Pa. St. 29; Fairehild v. Edson, 154 N. Y. 95; see Sec. 610. 199; People v. Powers, 147 N. Y, 77 See Sec. 643. 104 ; Johnson v. Johnson, 92 Tenn. 88 See Sec. 689-698. 559 ; 36 Am. St. Rep. 104 ; 22 L. R 79 Wheelock V. American Tract So- A. 179; Fifield v. Van Wyck, 94 ciety, 109 Mich. 141; Tilden v. Va. 557. Green, 130 N. Y. 29; 14 L. R. A. 722 LAW OF WILLS. that no attention can be paid to such arrangements, except in so far as the same appear upon the face of the will.®^ Buc such an arrangement is often made in order to evade some rule of law which would render the trust invalid if expressed upon the face of the will. Thus oral trusts have been used as a means of devising property to a corporation, where the circumstances were such that a direct devise would have been invalid,*^ or as a means of devising property to testator's il- legitimate children, in excess of the amount which testator, by statute, might dispose of to the exclusion of his legiti- mate children.**^ Accordingly, in some states these trusts may be proved by parol, and if a direct gift would have been invalid, the secret tnist can not be sustained; further, the nominal beneficiary is not allowed to hold the gift for his owti use.®^ A devise to testator's son for life will be reconciled with a subsequent devise of the same property in trust for his wife and children, by construing the will to give to the son the right to occupy such property together with his wife and children.^* §621. Validity of trusts. In order to be valid and enforceable a trust must, of course, possess the elements already indicated as essential to a trust.®^ In addition to these requirements, the trust must be so cre- ated as not to violate any settled rule of law or equity. Thus a trust violating the rule against perpetuities is invalid.* So a trust created for the accomplishment of an unlawful purpose is invalid. In some jurisdictions the purpose for which a trust may be created are sufRciently designated by statute. In such juris- dictions a trust can not be created for any other purpose.^^ ' 80 Sims V. Sims, 94 Va. 580. 84 Brown v. Brown (Ky.), 18 S. 81 Trustees of Amherst College v. W. .521 ; 13 Ky. Law Reporter, 808. Ritch, 151 N. Y. 282. s^ See Sec. 610. 82 Gore V. Clark, 37 S. C. 537 ; 20 * See Chapter XXVIII. L. R. A. 4G5. ^^ Bennalack v. Richards, 116 83 Trustees of Amherst College v. Cal. 405 (thus in California the Ritch, 151 N. y. 282: Gore v. Clark, 37 S. C. 537 ; 20 L. R. A. 465. LAW OF WILLS. 723 A bequest in trust for purposes which can not be carried out is, as we have seen, either regarded as invalid®"^ or is con- sidered as a resulting trust for testator's heirs and next of kin.^^ §622. Extent of interest of beneficiary. The nature and extent of the interest given to a cestui que trust under a will are to be determined from the will itself, and can not be modified by the subsequent exercise of powers of conversion, except in accordance with the terms of the will.s^ A gift in irust of all the property coming to one under a will includes not merely the property devised directly, but also property devised by way of remainder.^" And a pro- vision adding a certain amount to an estate already given in trust, gives the addition upon the same trusts.^^ A devise to testator's children in trust for their children creates no benrficial interest in the children of testator, al- though subsequently he refers to one of these devisees in trust as a "child's portion." ^^ A gift in trust for the benefit of two or more legatees is ordinarily to be treated as a separate trust for the use of each beneficiary, and not a joint trust for the use of all f^ espe- cially where construing the trusts as one joint trust would violate the rule against perpetuities.®* statute), in enumerating the pur- so Shaw v. Eckley, 169 Mass. 119. poses for which a trust may be 9i Lejee's Estate, 181 Pa. St. 416. created, does not authorize a trust 92 Mims v. Maeklin, 53 S. C. 6. to sell property, and no such trust 93 Stein v. Stein, 79 Md. 464; can be created in California). Weston v. Massachusetts General 87 liigersoll's Will, 131 N. Y. Hospital, 169 Mass. 76; 47 N. E. 573. 444; Dean v. Mumford, 102 Mich. 88 Trustees of Amherst College v. 510; Morse v. Macrum, 22 Or. 229. Ritch, 151 N. Y. 282. See Sec. 617. o* Dean v. Mumford, 102 Mich. s» Wilson V. Wright, 91 Ga. 774; 510. Reed v. Davis, 95 Ga. 202. 724 LAW OK WILI^S. Where no restriction is imposed by will, a beneficiary of a trust may devise his estate,^^ or sell it.^^ The purchaser, however, takes no greater interest than the beneficiary from whom he bought. Accordingly if the will provides for re- investment of the trust funds in the discretion of trustees, the purchaser can not prevent such reinvestment.^'^ §623. Accumulations. A trust for the accumulation of the income, which does not violate the rule against perpetuities, nor the local statute of accumulations, is valid.^^ Thus a gift of the income of $20,000 to testator's son for life and of the remainder of per- sonal property after the death of testator's widow to a trustee to hold in trust to be paid over at the death of the son to cer- tain persons, was held to be a direction for accumulation of all the income arising from the joroperty after the pajnnent of the income of $20,000.^^ A gift in trust to apply the income to the pa^anent of cer- tain mortgages was held to last not merely until the mort- gages were satisfied, but also until the amount which was taken from the principal of such gift was accumulated from the income, so that the princij^al should ultimately be un- touched.^ '^^^ §624. Separate estates of married women. In jurisdictions where a husband has still, by common law, certain property rights in his wife's realty and personalty, other than curtesy or dower, equity recognizes and protects property devised or granted to a married woman free from the control of her husband. This equitable estate is known as a married woman's separate estate. 95Boies's Estate, 177 Pa. St. 190. (1897); 47 N. E. 413; Eldred v. 96Kean v. Kean (Ky.), 18 S. W. Shaw, 112 Mich. 237; see Sec. 638, 1032. et seq. 97 Dickison v. Ogden, — Ky. — oo Brown v. Wright, 168 Mass. (1890) ; 12 S. W. 191. 506 (1897) ; 47 N. E. 413. 98 /n re Mason ( 1891 ) , 3 Ch. 467 ; loo Hart v. Allen, 166 Mass. 78. Brown v. Wright, 168 Mass. 506 LAW OF WILLS. 725 1^0 set form of words is nec^^sary in a will to create a separate estate. Any expression of testator's intention to free the property devised from the legal rights of the hus- band is given full effect by treating her estate in the property devised as her separate estate.^ ^^ The question whether a separate estate is created is one of testator's intention. Hence the use of the words "free from her husband's control," or other words of similar character, is not conclusive in determining the character of the estate.^ °^ Thus where testator's intention is solely to protect the interest of the beneficiary if she should marry, and during minority, it was held that she had an absolute estate on coming of age when unmarried.^ ^^ So where, in addition to words which by themselves might create a separate estate, the devise was expressly stated to be •'absolutely and in fee simple," and testator's property was so invested in valuable unimproved realty that if a separate es- tate was created the devise would be of little or no value, it has been held that a fee simple and not a separate estate was created.^ ^^ Testator's intention to create a separate estate must ap- pear on the face of the will. It can not be presumed from a devise to a woman and her children that a separate estate was intended.^ °^ 101 Easberry v. Harville, 90 Ga. rate estate). Dezendorf v. Hum- 530 (a devise to a married woman phreys, 95 Va. 473 (a devise "to "in her own right," and a devise to her sole and separate use," held to her "in her own right free from create a separate estate ) . the debts and contracts of her pres- 102 MacConnell v. Wright, 150 Pa. ent or any future husband," were St. 275 ; Meacham v. Graham, 98 both held to create separate es- Tenn. 190; 39 S. W. 12. tates). 103 Meacham v. Graham, 98 Tenn. Lushy V. Taylor (Ky.), 30 S. W. 190 (1897) ; 39 S. W. 12. 396; 17 Ky. L. Rep. 65; Small v. lo* MacConnell v. Wright, 150 Field, 102 Mo. 104 (to a married Pa. St. 275, distinguished in Hays woman "for the sole use of herself v. Leonard, 155 Pa. St. 474, where and her ehild'-en.") Hays v. Leon- the words prima facie creating a ard, 155 Pa. St. 474 (a devise to a separate estate were not modified married woman "to her sole and by the context, separate use" held to create a sepa- los Hixey v. Deitrick, 85 Va. 42. 726 LAW OF WILLS. A devise to women "in their own rights" does not create an equitable separate estate.^ ^^ In some jurisdictions property given to a married woman as her separate estate becomes hers absolutely upon the termination of coverture.^"' In most jurisdictions it is provided by statute that a married woman shall retain her own property upon mar- riage (subject, of course, to her husband's right of curtesy or dower) as if she were unmarried.^^^ Under such statutes a devise to one "for her sole use and comfort during her natural life and to her heirs and assigns forever" passes a fee.^*^^ 106 Merrill v. Bullock, 105 Mass. woman and her husband and the 486; Leete v. State Bank, 141 Mo. survivor of them was held not wlth- 574; Hart v. Leete, 104 Mo. 315. in that rule. Phelps v. Simons, lOT Martin v. Fort (Tenn.), 83 159 Mass. 415. Fed. 19; Harding v. St. Louis Life loo Kendall v. Clapp, 163 Mass. Insurance Co. 2 Tenn. Ch. 465. 69; Cresaey v. Wallace, 66 i^". K. 108 But a devise to a married 566. LAW OF WILLS. * ^* CHAPTER XXVIII. THE RULE AGAINST PERPETUITIES, AND CHAR- ITABLE TRUSTS. §625. Perpetuities. — General discussion. Among the restraints upon testamentary power is a clast of restrictions which apply to wills, deeds, powers and all othei instruments by which estates in property may be created. This is the class of restrictions which is sometimes rather vaguely referred as created by the rules against perpetuities. There rules ought, on the one hand, to be considered in con- nection with restraint upon testamentary powers, for they affect the validity of a great many wills and impose a very serious obstacle in many cases to the fulfillment of the wishes of the testator; but on the other, they are so involved with questions of construction that it seems better to discuss them at this point in connection with the rules controlling the na- ture of the estate created, and with trusts. Under the restraints created by the rules against perpetu- ities are grouped three topics which must, for purposes of convenience, be discussed separately. These are: (1) Per- petuities in the technical sense, that is, unlawful postpone- ments of the vesting of estates; (2) Perpetuities in the pop- ular sense, that is, unlawful restraints on alienation; and (3^) Unlawful accumulations of property. The same devise of property is often a violation of the rules on more than one of these topics, and to this fact is due the 728 LAW OF WILLS. occasional confusion between these different subjects to which text-writers and courts have been liable. These rules, furthermore, are not matters peculiar to the law of wills, but apply equally to all conveyances of property of whatever kind ; and they are topics of such vast scope that a thorough discussion of them here would expand this work far beyond the limits assigned to it. An elementary discussion of this subject will therefore be undertaken here; and for an exhaustive investigation the reader will be referred to the excellent special works upon that subject. §626. Perpetuities. — Definition and application. As the term "perpetuity" is an ambiguous term in law, its different meanings must be distinguished carefully, in order to avoid confusion. In the technical sense a perpetuity is a grant of property "wherein the vesting of an estate or in- terest is unlawfully postponed ; and they are called perpetu- ities not because the grant as written would make them per- petual, but because they transgress the limits which the law has set in restraint of grants that tend to a perpetual suspense of the title or its vesting." ^ This technical meaning of Perpetuity will be considered first; and this meaning must be carefully distinguished from the rules against restraint of alienation.^ The rule, in this sense, refers solely to the time when the estate under considera^ tion is to vest, and has nothing at all to do with its termina- tion.^ So that if an estate is to vest at all within the time fixed by statute, the fact that it may last beyond the time fixed by statute does not avoid the estate under the rule against 1 Johnston's Estate, 185 Pa. St. 169 111. 432; 169 111. 472; Daven- 179, quoting Philadelphia v. Gi- port v. Kirkland, 156 111. 169; rard's Heirs, 45 Pa. St. 9 ; Law- Brool^s v. Belfast, 90 Me. 318 ; Hill- renee's Estate, 136 Pa. St. 354; yer v. Vandewater, 121 N. Y. 681 112 Vx. A. 85. Johnston's Estate, 185 Pa. St. 179 2 Brooks V. Belfast, 90 Me. 318. Lawrence's Estate, 136 Pa. St. 354 3 Chamberlayne v. Brockett, L. R. 11 L. R. A. 85: Webster v. Wiggin, 8 Ch. 206; Riiasell v. Allen. 107 19 R. I. 73; 28 L. R. A. 510. LT. S. 163; Ingraham v. Ingraham, LAW OF WILLS. 729 perpetuities.^ On the other hand, it does not concern itself with the time at which the estate granted is to take effect in possession, but solely with the time at which such estate vests.' When the question of the validity of a will under the rules against perpetuities, or in restraint of alienation, is under consideration, the state of facts existing at testator's death controls, and not that existing at the date of the execution of the will.^ When a will creates a power, the question whether the estate created in pursuance of the power violates the rule against per- petuities is to be determined as of the date of the will, and not of the time Avhen the power was executed.''^ And where a deed creates a power, which is exercised by a will, the ques- tion of the violation of the rule against perpetuities is to be solved by referring to the condition of affairs at the date of the deed.* Where the devise is dependent on future governmental ac- tion, subsequent to testator's death, control of which is, of course, impossible, and such a devise will be in violation of the rule against perpetuities or restraints on alienation unless the government does so act, it is held void.^ §627. Origin of rule. Under the early common law there was practically nothing upon which the rule could operate, and the rule itself was therefore non-existent. A freehold estate could not be created to begin in the future without the intervention of some inter- mediate estate, the determination of which before the sub- sequent estate could take effect in possession would defeat such subsequent estate, and by means of collusive matters of 4 Howe V. Hodge, 152 111. 252; 7 Lawrence's Estate, 136 Pa. St. Madison v. Larmon, 170 111. 65; 354; 11 L. R. A. 85. Lawrence v. Smith, 1G3 111. 149, s Dana v. Murray, 122 N. Y. 604. 3 Madison v. Larmon, 170 111. 65; 9 People v. Simonson, 126 N. Y. Rhodes's Estate, 147 Pa. St. 227. 299; Fowler v. Ingersoll, 127 N. 6 Whitney v. Dodge, 105 Cal. 192 ; Y. 472. Mullreed v. Clark, 110 Mich. 229 Fargo V. Squiers, 154 N. Y. 250 Dana v. Murray, 122 N. Y. 604. Contra, Field v. Drew Theological Seminary, 41 Fed. 371. 730 LAW OF WILLS. record, such as fines and recoveries, it was in the power of the particular tenant in tail to bar the reversion after his estate. But when long terms of years began to be employed as af- fording a means of family settlements, and when trust estates and devises by ^vill began to be employed for similar pur- poses, and estates were thereby created which were not de- pendent upon intermediate estates, the courts awoke to the fact that, unless some new restraints were imposed on aliena- tions and devises, property would in a few generations be so encumbered and involved as to be practically inalienable thereafter. By judicial legislation, originally in the courts of chancery, and subsequently acted upon on analogy by the law courts, the rule against perpetuities was gradually evolved. The old rule against a possibility upon a possibility, was an attempt to prevent perpetuities, and is practically enforced by the modern rule.^*^ §628. Original rule and statutory modifications. As finally settled upon by the courts, the rule against per- petuities was as follows: jSTo interest subject to a condition precedent is good unless the condition is to be fulfilled, if at all, within twenty-one years after some life, or lives, in being at the creation of the estate.-^ ^ The number of lives upon which the vesting of the estate depends is immaterial if all the lives are in existence at the time the estate is created.^ ^ To this length of time is added .the period of gestation, whenever gestation in fact exists, whether it is the gestation period of a person in ventre sa mere, who is the person in being whose life determines the 10 Zn re Frost, L. R. 43 Ch. D. worth. 171 Mass. 496; Whitby v. 246; Whitby v. Mitchell, C. A. L. Mitchell (C. A.), L. R. 44 Ch. R. 44 Ch. D. 85. D. 85; In re Hargreaves (C. A., 11 Madison v. Larmon, 170 111. L. R. 43 Ch. D. 401. 65, quoting Gray on Perpetuities, 12 xMadison v. Larmon, 170 111. Sec. 201 ; Terrell v. Reeves, 103 Ala. 65. 264; 16 So. 54; Leonard v. Ha- LAW OF WILLS. 131 estate/^ or the gestation period of the person whose minority is the' twenty-one year period after a life in being.^^ By the wording of the rule it can not apply to vested es- tates i^^ but it does apply to every sort of property right other than a vested interest, such as a contingent remainder •/« or an executory devise ;i^ and it includes both legal and equitable estates.-^ ^ §629. Effect of violation of rule. — Examples. A devise in violation of the rule against perpetuities is void, and the property passes to the residuary devisee or legatee, if there are such, or to the heir or personal represent- ative if there are not, just as if testator had not included such provision in his will, or had died intestate as to such property.^ ^ Where the devise is one which may or may not vest withm the time limited, it is held to be a devise within the rule and void, even though it probably will vest within the time lim- ited.2o In such case the fact that the person, to whose descendants the perpetuity is limited, is past the age of child-bearing, does not prevent the application of the rule against perpetuities.^^ 13 Phillips V. Herron, 55 O. S. 478. 14 Long V. Blackall, 7 T. R. 100; GoUiver v. Mickett, 1 Wils. 105. 15 Terrell V. Reeves, 103 Ala. 264; 16 So. 54; Johnson v. Webber, 65 Conn. 501; Lawrence v. Smith, 163 111. 149. 16 Madison v. Larmon, 170 111. S5. 17 Carney v. Kain, 40 W. Va. 458. isBigelow V. Cody, 171 111. 229; Booth V. Baptist Church, 126 N. Y. 215. 19 In re Wood (1894), 3 Ch. 381; In re Daveron (1893), 3 Ch. 421; Walker ly's Estate, 108 Cal. 627; Morris v. Boiled, 65 Conn. 45; Bel- field V. Booth, 63 Conn. 299; Tin- gier V. Chamberlain, 71 Conn. 466, Lawrence v. Smith, 163 111. 149 Hamlin v. Mansfield, 88 Me. 131 State V. Holmes, 115 Mich. 456 Johnston's Estate, 185 Pa. St. 179 Adams v. Farley (Miss.), 18 So. 390. 20 Jn re Bowen (1893), 2 Ch. 491; Tingier v. Chamberlain, 71 Conn. 446; Landers v. Dell, 61 Conn. 189; 26 Atl. 103; Lawrence v. Smith, 163 111. 149; Palmer v. Union Bank, 17 R. L 627. Contra, In re Russell (1895), 2 Ch. 698. 21 7n re Powell (1898), 1 Ch. 227 (the mother was eighty years old). See In re Dawson (1888), 39 Ch. D. 155. 732 LAW OF WILLS. But where a time within the limit fixed by the rule is to intervene between the settlement of testator's estate and the vesting of the gift over, such gift is valid where a settlement of decedent's estate or a sale of realty may be had within such reasonable time as will bring the whole period within the time limited by the rule, as the presumption is that the ex- excutors or trustees will settle within such reasonable time.^^ So a direction in a will that the executors shall sell the realty as soon after testator's death as can be done convenient- ly, does not create an unlaAvful perpetuity, as the sale must be had within a reasonable time.^^ §630. Partial violation of rule. If a limitation in a will is to vest within the time allowed by the rule against perpetuities, it is not avoided by the fact that another or an alternative provision in the will is void as against perpetuities.^^ Thus a gift to charity, to which the rule against perpetu- ities does not apply, is not avoided by a direction that in the event that testator's nephews and nieces become poor and needy the trustees shall support them out of the fund given to charity even if the second gift violates the rule.^^ But where the void provision is so closely connected with the valid provision as to be inseparable from it, the whole gift is EA^oided. Thus a devise for different purposes, one valid and the rest void, is invalid as to all where the will provides that " a 22 /u re Lord Sudeley (1894), 1 mond, 65 Conn. 492; Howe v. Ch. 334; Belfield v. Booth, 63 Conn. Hodge, 152 111. 252; Ingraham v. 299; Atwater v. Russell, 49 Minn. Ingraham, 169 III. 432; 169 111. 22 (to be sold as soon as trustees 472; In re Stickney's Will, 85 Md. can get a reasonable price, and in 79; 35 L. R. A. 693; Hascall v. any event in ten years). King, 162 N. Y. 134; Mears v. 23 Hope V. Brewer, 136 N. Y. Mears, 15 O. S. 90. 126; 18 L. R. A. 458; Cooper's Es- 25 Ingraham v. Ingraham, 169 tate, 150 Pa. St. 576. HI. 432; 169 HI. 472 (this visw 24 /« re Lo^vman (C. A.), (1895), was taken since the gift to the 2 Ch. 348; Halsey v. Goddard, 86 nephews and nieces was incidental Fed. 25; Perkins v. Fisher, 59 to that of charity) ; Mears v. Mears, Fed. 801;; Terrell v. Reeves, 103 15 0. S. 90. Ala. 264; 16 So. 54- .Tohnson v. Ed- LAW OF WILLS. '^ part" of the property devised shall be devoted to the valid pur- pose, without saying what specific part was intended.^^ When successive gifts are made, some of which are in vio- lation of the rule against perpetuities and others of which are not, the question of the validity of the gifts which are not themselves in violation of the. rule against perpetuities de- pends upon the closeness of the connection between the in- valid gifts and the other gifts. If consistent with the general scheme of the will, the valid gifts can be separated from the invalid, this will be done, and the valid gifts will be sus- tained, while the gifts in violation of the rule will be de- feated.2^ jf^ on the other hand, the valid and invalid gifts are so closely connected by will that it is evidently testator's intention that all shall stand or fall together, the invalidity of one gift will defeat the others.^s Thus, where a devise in trust for seventy-five years is not within the rule, but is created simply as a means of effecting a gift over at the end of the seventy-five year period, the valid term will fail together with the invalid gift over.^^ §631. Examples of gifts not within the rule against perpetuities. Bequests and devises which are to vest at the death of a person in being, are always held to be valid as far as this rule is concerned.^^ 26 Kelly V. Nichols, 17 R. I. 306. 473; Johnston's Estate, 185 Pa. St. 27 Perkins v. Fisher, 59 Fed. 801 ; 179. Beers v. Narramore, 61 Conn. 13; 29 Johnston's Estate, 185 Pa. St. Ketchum v. Corse, 65 Conn. 85; 179. Bullard V. Shirley, 153 Mass. 559; ao /» re Powell (1898), 1 Ch. 12 L. R. A. 110; Underwood v. 227; Hendy's Estate, i;8 Cal. 656 Curtis, 127 N. Y. 523; Hatch v. Healy v. Healy, 70 Conn. 467 Hatch, 31 W. L. B. 57; Lawrence's Johnson v. Webber, 65 Conn. 501 Estate', 130 Pa. St. 354; 11 L. R. St. John v. Dann. 66 Conn. 401 j^ 35, Parker v. Churchill, 104 Ga. 122 28 Potter V. Couch, 141 U. S. 296; Wentworth v. Fernald, 92 Me. 282 Lockridge v. Mace, 109 Mo. 162; Schermerhorn v. Cotting, 131 N. Y, Lockridge v. Mariner, 109 Mo 48 ; Hillen v. Iselin, 144 N. Y. 365 169; Butterfield's Will, 133 N. Y. Stevenson v. Evans, 10 0. S. 307 734 LAW OF WILLS. So a bequest in trust, the income to go to testator's wife for life, then to her two children till they reached the age of twenty-five, was upheld, the children being in existence at testators' death, when the will took affect, as such bequest must vest during a life in being.^^ And where a devise is limited to one for life, and over to his heirs as they come of age, the rule against perpetuities is not violated f^ nor where a devise is to take effect after the death of the wife and daughter of testator and after twenty years af- ter testator's death. ^^ And a bequest in trust for A and 'liis family," until he shall pay certain specified debts and then the balance of the fund to him, is valid, as the word "family" is so construed as to exclude all but those in being or their children.^^ And a devise after the death of the taker of the life estate to his "heirs" or "legal representatives," is upheld. The term "legal representatives" is construed as meaning "executors or administrators," and the estate passes by descent and not by purchase.^^ Where a devise is made to one for life, and if he die "with- out issue," or "childless," or "without being heirs of their body," then over to another, the first question presented is one of construction. Is the devise one limited over if at the death of the person named as taking the first estate he has no living descendants, or is it a devise over if at any time thereafter the line of descendants of the first taker should fail? The first contingency is spoken of as a "definite fail- Lennig's Estate, 154 Pa. St. 209; 32 Earnshaw v. Daly, 1 App. D. Armstrong v. Douglass, 89 Tenn. C. 218; Siddall's Estate, 180 Pa. 219; 10 L. R. A. 85. St. 127; Hughes v. Hughes, 91 Wis. So a devise to A for life and then 138; Otterback v. Bohrer, 87 Va. to his children or to the children 548. lawfully begotten of the body of 33 Potter v. Couch, 141 U. S. 296. such children is valid, as the gift 34 St. John v. Dann, 66 Conn, is to the class existing at the death 401. of the life tenant. Stevenson v. 35 Tarrant v. Backus, 63 Conn. Evans, 10 0. S. 307. 277; 63 Conn. 277; Johnson v. Ed- 3iHondy's Estate, 118 Cal. 656 ; niond, 65 Conn. 492 ; Healy v, Healy, Schermerhorn v. Cotting, 131 N. Y. 70 Conn. 467. 48. 7S5 LAW OF WILLS. lire of issue," the second as an ''indefinite failure of issue. If the devise is over on a definite failure of issue, it vests im- mediately on the death of a person in being, and is, therefore, not too remote.^'^ So a devise to trustees to pay to a charitable corporation the income of testator's estate after the death of his wife and all his children, until the aggregate of the payments is twenty thousand dollars, and then to another charitable corporation nntil the aggregate amount of these payments is twenty thou- sand dollars, does not violate the rule against perpetuities where the income from the estate is such that the entire sums will be paid within twenty-one years after the death of the last surviving member of testator's immediate family. But where the words "without issue" are held to mean an in- definite failure of issue, a devise over upon such failure is void, since it may not vest till after a life or lives m being QQ and twenty-one years. The words "die without leaving issue" were, as we have seen, held at common law to mean prima fane an indefinite failure of issue.^^ §632. Examples of gifts Within the rule against perpetuities. Where the original rule against perpetuities is in force, and no estate can be so devised as to vest at a period more remote „^ , St 119- Boutelle v. City Savings r^TiP-tliird to wife of such child), f^- vv. i", , , i.- „ Terrel V Reeves. 103 Ala. 264; 388 ("should I at any fu ure time 16 So. 54 (devise to surviving chil- fail to have heirs hy -^ ^-1^ ^ " dren and "descendants" of such as 3s Lennig's Estate, 154 Pa. St. are dead; if none ---^'^^-^ ''t Lurman v. Hubner, 75 Md. over); Glover v. Condell, 163 ill. ^^'' 566 (die "without living heirs of 268; Rea v. Bell. 47 Pa. St. 118, their body") ; Strain v. Sweeny, 163 Hackney v. Tracy 137 ^^;^J^'^'\ Til 603 (d e "without issue of his - Hackett v. Tracy, 137 Pa. St. bodv ) Madisl V. Larmon, 170 53 (even when the limitation over mM- wlbrenner's Estate, 173 was to one living, designating him Pa. St. 440 (die "without leaving by name) ; see Sec. 591. issue Morehead's Estate, 180 Pa. 736 LAW OF WILLS. than after a life or lives in being and twenty-one years, a de- vise to vest at the end of a fixed period of time, without re- o-ard to lives in being, is void under the rule, where the time fixed exceeds twenty-one years, even though the aggregate term will probably be less than a life in being and twenty- one years.^^ A devise to vest when the children of persons in being (which children may not all be in being at the death of tes- tator) are twenty-five, is too remote.^- So a devise to children born or to be born, for their lives, is void, since it may ex- tend past any life in being and twenty-one years.^^ And a devise to take effect upon the happening of a future event which is not dependent on any life or lives in being, and which may or may not happen before the time limited by the rule against perpetuities, is void under the rule.'*'* Where a gift to the "wife" of some one other than testator is held to include a wife married after testator's death, it is held in some jurisdictions that such a gift violates the rule against perpetuities, since it is possible, but not probable, that such gift may not vest within a life or lives in being and twenty-one years. •ti/M, re Daveron (1893), 3 Ch. 2 Ch. 381 (a devise to vest when 421 (after forty-nine years); certain gravel pits owned by testa- Walkerly's Estate, 108 Cal. 627 (af- tor in freehold should be exhaust- ter twenty-five years) ; Stephen's ed) ; In re Lord Stratheden and Succession, 45 La. Ann. 962; John- Campbell (1894), 3 Ch. 265 (a ston's Estate, 185 Pa. St. 179 (af- bequest to a volunteer corps upon ter seventy- five years ) . the appointment of the next lieu- i'^Jn re Mervin (1^91), 3 Ch. tenant-colonel): Hamlin v. Mans- 197; Lawrence v. Smith, 163 111. field, 88 Me. 131 (a devise to take 149; Armstrong v. Douglass, 89 effect on the cessation of a busi- Tenn. 219: 10 L. R. A. 85 (at- ness, the business to be carried on tempt to entail by settlement). as long as the son of testator or 43 Thomas v. Gregg, 76 Md. 169; any of his children should wish to Dayton v. Phillips, 28 W. L. B. carry it on) : Dana v. Murray, 122 327. N. Y. 604; Palmer v. Union Bank, 44 /n re Gyde, 78 Law T. R. 449 17 R. I. 627 (a devise over if trus- (a bequest to vest when land should tees should omit to execute the trust be given or obtained for a speci- for a year), fied purpose) ; In re Wood (1894), LAW OF WILLS. 737 A devise to "a widow" of A is good if it means his present wife, and it is so construed,^^ but bad if it means any wife he may have thereafter."**^ §633. Statutory modifications of the rule against perpetuities. In some states the common law rule has been modified by statutes, which provide that an estate can be devised only in a person in being at the time of making the will, or his im- mediate issue or descendants. A statute of this kind "super- sedes inquiry as to the scope of the common law rule on the subject," and furnishes a rule complete in itself.^^ The expression "time of making the will," is construed to mean the death of the testator."*^ In Connecticut the "immediate issue or descendants" means the children of such as are in being; and a devise to "grand- children," "heirs," and the like, is held too remote.^^ But in Ohio, though their statute is copied from that of Connecticut,^*^ the words "immediate issue or descendants," is extended to include grandchildren of one in being where the parent of such grandchildren, who was the child of such person in being, 45 Beers v. Narramore, Gl Conn. children of testator in being; then 13_ to tes-tator's "grandchilden and 46 So as to husband, In re Frost, their heirs" ) ; Ketchem v. Corse, 65 L. R. 43 Ch. D. 246. Conn. 85 (to the "heirs and legal 47 Phillips V. Herron, 55 0. S. representatives" of persons in be- 478. ing) ; Johnson v. Webber, 65 Conn. 48 Johnson v. Webber, 65 Conn. 501 (a devise to granddaughters 504. in being for life, and on their death 49Anyn V. Mather, 9 Conn. 114; among their children is valid: but Jocelyn v. Nott, 44 Conn. 55 ; Leake a devise on their death to the "then V. Watson, 60 Conn. 498; Landers lineal descendants" of testatrix is V. Dell, 61 Conn. 189; 23 Atl. 1083 invalid); Security Company v. (to daughter, on her death to her Snow, 70 Conn. 288 (to the "law- children; the issue of any de- ful heirs" of one in being) ; Tin- ceased child to take their parents' gier v. Chamberlain, 71 Conn. 466 share); Anthony v. Anthony, 55 (to "those persons who are the nat- Conn. 256 (to the "heirs" of one ural heirs at law of my said son in beinf) ; Beers v. Narra- at the time of his decease"), more, 61 Conn. 13 (to "heirs"); so Harkness v. Corning, 24 0. S. Morris v. Bolles, 65 Conn. 45 (to 416. 738 LAW OF WILLS. dies before such person in being ;^^ and a person m ventre sa mere is, of course, a j^erson in being within the meaning of this statute.^^ §634. Restraints on alienation. The general rules of property law do not recognize such an anomaly as an estate of inheritance, or an absolute ownership of personalty, in which the owner is restrained from alienat- ing such property. The whole history of the law of realty since the Norman Conquest is a succession of struggles to shake off restraints upon the free alienation of property im- posed by the feudal system, and now that the restraints im- posed by the military organization of society are done away with, the courts are very unwilling to allow the caprice of tes- tators to reimpose similar limitations. §635. Extension of rule against alienation to prevent perpetu- ities. The rule against restraints upon alienation was an entirely different one from the rule against perpetuities. The latter referred to the time when the devise should be vested ; the former to the power of the devisee over his devise after it had vested. The confusion between them arose from the fact that a provision in a will might be forbidden by both rules at the same time. Thus, a devise for a fixed space of time without a reference to a life in being, and to be devoted to a named purpose which would prevent alienation, and then over to a named beneficiary, would be a violation of both rules. This confusion has been further increased by the statutory change in the rule against perpetuities which has been made in some states. The common law rule has been discarded, and in its stead a rule which with slight variations is substantially that the absolute power of alienation of a fee shall not be BiMcArthur v. Scott, 113 U. S. 52 Phillips v. Herron, 55 O. S. 340; Stevenson v. Evans, 10 O. S. 478. 307; Turley v. Turley, 11 0. S. 173. LAW OF WILLS. 739 suspended for a longer period than during the continuance of not more than two lives in being at the creation of the es- tate.^2 In some states a period of minority, where minority exists, is added to the foregoing period; in others, the absolute pe- riod of twenty-one years may be added. The statutes are not always the same as to certain exceptions allowed to this rule, and personal property is included under some of these stat- utes,^^ while under others it is not included,^^ or alienation may be restrained for any number of lives in being at the death of the testator.'^ ^' But with the exception of these matters of detail the general principles of these statutes are substan- tially uniform in the different states. A recent California case illustrates the distinction between the common laAv rule and the statutory rule. In that case testator bequeathed bonds in trust to pay interest and divi- dends to his granddaughter for life, and on her death to her children until the youngest should reach his majority, when the fund was to be divided among these children equally. This bequest was void under the statutory rule in force in California, as the power of alienation was restrained for more than lives in being, but it was valid under the common law 53 "Our statute is not, properly speaking, against perpetuities. It simply prohibits restraints on alien- ation. The declaration that a fu- ture estate is void in its creation, which thus suspends the power of alienation, is to the same end. It is void if by any possibility it may suspend the absolute power of alien- ation beyond the prescribed period. The doctrine of remoteness therefore hajs no materiality except as it affects alienability." Estate of Cavalry, 119 Cal. 406. "The statute does not prohibit all limitations of estates by which the power of alienation is suspend- ed, but permits a suspension of such power, with the restriction that the suspension shall not continue be- yond the period of lives in being at the creation of fhe limitation, and in Section 710 defines this re- striction as follows. 'Such power of alienation is suspended when there are no persons in being by whom an absolute interest in pos- session can be conveyed.' Conse- quently, whenever there are persons in being by whom an absolute in- terest in possession in the land can be conveyed, the power of alien- ation is not suspended." Toland v. Toland, 123 Cal. 140. 54 Walkerley's Estate, 108 Cal. 627. 55 Tower's Estate, 49 Minn. 371. sePenfield v. Tower, 1. N. D. 210. 740 LAW OF WILLS. rule. In this case testator was domiciled in Pennsylvania at the time of his death, and the property disposed of was personalty. It was held that the bequest was controlled by Pennsylvania law and was valid, even in California courts.^^ The same distinction is made in a case where the devise was in violation of the statute as to realty, but good at common law as to personalty and such realty as was to be converted into person alty.^^ §636. Illustrations of violations of statutory rule. Under the rule against perpetuities, as modified by modern statutes, the question is not primarily one of the vesting of the estate, but of the length of time during which the aliena- tion of the fee is necessarily prevented. Thus, a devise which is settled by trust or otherwise to last forever, is clearly .for- bidden by the statutory rule.^^ So is a devise for a fixed term of years without any reference to a life in being.^*^ But where a suspension of the power of alienation might have been valid for infancy, a trust preventing alienation until the youngest child should reach the age of forty was held valid up to the age of twenty-one.^^ And where a devise is measured by lives so as to exceed the number of two lives in being permitted by statute the devise 57 Whitney v. Dodge, 105 Cal. named should reach twenty-five, 192. and other half till he should reach 58 Tower's Estate, 49 Minn. 371. thirty); Booth v. Baptist Church, 59 Brown v. Esterhazy, — (D. 126 N. Y, 21.^ (a bequest to a C. ), 1897; 25 Wash, L. Rep. 478; church to help pay its debts if the In re Bartlett, 163 Mass. 509; Beur- church should within two years iaus V. Cole, 94 Wis. 617. raiae enough to pay its debts; if 60 Cavarly's Estate, 119 Cal. 406 not, then the bequest to lapse to the (alienation prevented till young- residuum of testator's estate) ; est child should reach the age of Haynes v. Sherman, 117 N. Y. 30); Crew v. Pratt, 119 Cal. 139 433 ("until our youngest child now (alienation prevented for seven living shall have arrived at the years ) ; Farrand v. Pettit, 84 Mich. age of twenty-one years or would 671; Fargo v. Squiers, 154 N. Y. arrive at that age if living"). 250 (alienation prevented as to si Edgerly v. Barker, 66 N. H. one-half the property till child 434; 28 L. R. A. 328. 741 LAW OV WILLS. '^-^ is forbidden by the riile.^^ And wliere such a restraint is made, a provision allowing a sale if the supreme court shall consent, docs not make the bequest valid, since the supreme court may not consent.^' A bequest of stock was made in a national bank in a non- charitable trust to last during the corporate existence of the bank ^'either undev its present character or by virtue of any renewals or extension thereof." At the time of testator's death the charter of the bank was limited to expire in less than the period of tvventv years, which the New Jersey statute allowed for the restraint of alienation, and no statute allowed a re- newal. It was held that inasmuch as the will expressly pro- vided for renewals of the charter, which were within the power of the government, the bequest might extend beyond the time limited, and was therefore void.«^ The view of the court in this case was possibly affected by the fact that after the death of testator a statute was passed providing for an extension ol the bank's charter, which was acted upon by the bank. And a devise of the use of the homestead to the widow for life, charging the taxes, repairs and annuity for the widow for 'her life upon the residue of the estate, restrains aliena- tion for the widow's life; hence a limitation over for two ad- ditional lives is void as creating a perpetuity.^^ A devise to the state after the death of testator's wife if the state shall formally accept it within five years after ^ such death, for a public, educational or charitable use, and if the 62 Whitney v. Dodge, 105 Cal. death of the widow); Greenland 192 (for life of devise and on her v. Waddell, 116 N. Y. 234 (a gift death till her youngest child reaches to a woman for life if she does not majority) ; McCan's Succession, 48 survive her husband, remainder to La Ann. 145;Trufantv. Nunneley.. her children if they survive her 106 Mich. 554 (specific tracts to and reach the age of twenty-one; each of three children for life; re- otherwise to others), mainder to the bodily heirs of all 63 Fowler v. Ingersoll, 127 N. Y. such children share and share 472. ^. xr t Vn alike); Underwood v. Curtis, 127 ^64 Siedler v. Syms, 56 N. J. Eq. N Y 52.3 (a devise to a widow 275. ^ ,^. , L her life, and remainder to be -Dean v. Mumford, 102 Mich, sold within ten years after the 510. 742 LAW OF WILLS. state will not accept, then to a grandson, is void as suspending the power of conveying an absolute fee for more than two lives in being, as the state has no title to the realty devised until the state accepts, and the grandson has no title till the expiration of fi-s'e years after the death of testator's wife.^^ §637. Cases not within the statutory rule. Under the statutory rule a devise or bequest is valid where a trust is created to last for only two lives in being, '^^ Thus, a devise in trust to executors, to pay the income to testator's widow and son for their lives, and then in trust for a char- ity, with a provision that certain pieces of realty should "not be sold or incumbered," was held valid, the clause in restraint of alienation not being construed to apply to any but the first trust which was only for two lives in being.^^ A devise to a person named, ^to be distributed by her among her descendants, children and grandchildren, according to her discretion," is valid, for under such a devise, distribution must take place at the death of the beneficiary at the latest. *^^ A will devising the income of a fund to a daughter and two cousins of testator is valid, where there is a provision that if the cousins die before the daughter the daughter shall take absolutely; and if the daughter dies first, the income shall go to such as she shall name. In no event can the trust outlasi the lives of the two cousins.'^ *^ So where a will att-empted to settle life interests upon three persons, but one of them died before testator, such devise did not violate the statutory rule, as the condition of facts at tes- tator's death determines the validity of the will."^^ And where a devise is made to two, jointly, the two may be counted as one tenant in estimating the number of lives, and a remainder over 66 state V. Holmes, 115 Mich. 20 L. R. A. 509; Beurhaus v. Cole, 456. 94 Wis. 617. 67Goldtree v. Thompson, 79 Cal. es Beurhaus v. Cole, 94 Wis. 617. 613; Meek v. Briggs, 87 lo. 610; 69 Woodbridge v. Winslow, 170 Cochrane v. Schell, 140 N. Y. 516; Mass. 388. Corse V. Chapman, 153 N. Y. 466; to Bird v. Pickford, 141 N. Y. 18. McClelland v. McClelland (Tex. ti Mullreed v. Clark, 110 Mich. Civ. App. 1898). 37 S. W. .3.50. 232. Saxton V. ^Vebber, 83 Wis. 617; 743 LAW OF WILLS. and a provision for a sale on tlie death of the remainderman, and distribntion of the proceeds among the legatees is valid. - Where the will creates two or more trusts, none of which will last more than two lives in being, each of such trusts is valid, although by such a will the entire property of testator is not set free until after more than two lives m being. And a devise in trust for a fixed number of years may be made valid by a further provision that if a life, or two lives, m being should terminate before the time limited that the estate should be vested in certain named persons.^^ And where upon a cor- rect construction of the will certain bequests vest absolutely within the time limited, they are valid, even though trusts as to the residue of testator's estate are prolonged."^^ A direction to receive certain rents until the leases are can- celled and pom3r to sell when the leases are cancelled, does not forbid sale before the leases are cancelled, and is therefore not a statutory perpetuity.^« And direction to executors to sell certain realtv during the spring months of a certain year, a few months after testator's death, is not a perpetuity, as . it only gives a reasonable time for sale and does not prevent an earlier sale.'^'^ §638, Accumulations. After the adoption of the rule against perpetuities the at- tention of the courts was not especially directed for a con- siderable time to the dangers that lay in permitting accumu- lations; that is, devises and bequests in trust, the net income not to be expended but to be added to the principal, and the entire sum thus obtained to be used at the end of the ac- cumulation period as provided by will. It thus became es- T2 Hughes V. Hughes. 91 Wis. ^5 Sawyer v. Cubby, 146 K Y. * 192; Durfee v. Pomeroy, 154 :N. \. loo. 73 Allen V. Allen, 149 N. Y. 280. 583. .„ ^ , ,,n T, V. . TH+lP T^4 N Y 147- TGToland v. Taland, 123 Cal. 140. Buchanan v. Little, 154 rs. i. J.'** , 144 xr v Schermerhorn v. Cotting. 131 N. " Deegan v. ^ade, 144 N^ Y. Y. 48; Surdam.v. Cornell, 116 N. Y. 573; Atwater v. Russell, 49 Mmn. 305. 74 Montignani v. Blade, 145 N. Y. 111. 22. See Sec. 629. 744 LAW OF WILLS. tablished law without much discussion that accumulations might be permitted for as long a time as the rule against per- petuities would permit any estate to be held on a con- tingency J^ The "will of Mr. Thelluson called the attention of the courts and the public to the abuses possible under this rule. This remarkable document settled an estate worth about three mil- lion dollars upon certain trustees to invest and accumulate the income till the death of the last survivor of a number se- lected, in being at testator's death, and then to divide the ac- cumulated funds among testator's descendants in designated proportions, and failing them, to the crown of England for the sinking fund. This devise was perfectly valid as the law then stood and was accordingly upheld.'^^ The comment caused by the case arose from the fact that it was discovered by careful computation that the trust would probably last for about seventy-five years, and the total ac- cumulation would be upwards of one hundred and twenty-five million dollars. This state of the law was at once remedied by the act of 39 and 40 Geo. Ill, ch. 98, which is popularly known as the "Thelluson Act." As far as this statute and the American statutes, which are based upon it, affect wills, they limit accum- ulation periods to tw^enty-one years after the death of testa- tor, or during a period of minority where such period exists at the death of testator. Accumulations can not be made for any longer period than that provided for by the act.^*' But where a bequest to a named beneficiary is to accumulate for his benefit beyond the time limited, such bequest is not void except as to the pro- 78 Scarisbrick v. Skelmersdale, 17 439 (accumulation directed for six- Sim. 187; Green v. Ekins, 2 Atk. ty years); Cochrane v. Schell, 140 473; Harrison v. Rowley, 4 Ves. N. Y. 516 (accumulation to go to 212; Boughton v. Boughton, 1 H. persons not in being at death of L. Cas. 406. testator) ; Farnum's Estate, 191 Pa. TO Thelluson v. Woodford, 4 Ves. St. 75; Edward's Estate, 190 Pa. 227. St. 177 (accumulation for life). 80 Baker v. Stuart, 28 Ont. Rep. LAW OF WILLS. 745 vision for alienation, and the beneficiary can take imme- diately.*^ A direction for accumulation which is evidently not in- tended to extend beyond the time fixed by law is not invali- dated by a provision that trustees shall delay the erection of a certain building until the city decides in regard to a pro- posed change of grade affecting the property upon which the building is to be erected.^^ §639. Charitable Devises. — Definition. A charitable devise is one for the benefit of an indefinite class of persons which may include the whole public, which devise is intended to promote the well-being of such class, within the limits allowed by the law.^^ Other definitions to the same effect in substance are given.*"* Where the statute or the constitution permits relaxation of the ordinary rules in favor of "eleemosynary" devises, this is held equivalent to the common law meaning of "charit- able," as here discussed.*^ The size and scope of this book do not permit of a thorough and detailed investigation of the great subject of charitable trusts, yet a discusion of the nature and extent of a testamen- tary power would be incomplete without some reference to a subject which is of such importance by reason of its frequent recurrence in the law of wills. All that can be undertaken here is a brief resume of the main principles of the subject as il- lustrated by a few of the adjudicated cases, chiefly those re- cently decided. 81 Wharton v. Masterman ( 1895) ; Tilden v. Green, 130 N. Y. 46 ; Towle A. C. 186; 64 L. J. Ch. (N. S.), v. Nessniith, — N. H. — ; 42 Atl. 369. 900. 82Eoger's Estate, 179 Pa. St. s* Jackson v. Phillips, 14 Allen 602. . (Mass.), 539; Pennoyer v. Wad- 83Willey's Estate, — Cal. — ; hams, 20 Ore. 274 ; Vidal v. Girard, 50 Pae. 550; Mack's Appeal, — 2 How. (N. S.), 127. Conn. — ; 41 Atl. 242; Old South ss People, Ellert v. Cogswell, 113 Society v. Crocker, 119 Mass. 1; Cal. 129. 746 LAW OF WILLS. §640. Rule against perpetuities as applied to gifts to charitable uses. — Time of vesting. Charitable devises must be considered by themselves be- cause of certain peculiarities which they possess. They are generally said not to be within the rule against perpetuities. Since the term "rule against perpetuities" is, as we have seen, ambiguous, the cases in which charitable devises are not with- in the rule must be considered in detail. Where a devise to a charity is so given as not to vest with- in the time fixed by the rule against perpetuities, the devise is void. In this sense of the term, a devise to a charitable trust is within the rule against perpetuities.^*^ A devise to a charitable organization to be incorporated after testator's death, is held in some states not to be contrary to the rule against perpetuities, as the corporation is supposed to be created at once.^'^ In others it is held invalid as con- trary to the rule against perpetuities, since the corporation may not be formed for a considerable time after testator's death, and the delay is not limited to a life in being.*^ Even where the will provided that the act of incorporation, the de- tails of which differ from the general statute, is to be ob- tained during the lifetime of the executors, or one of them, such gift was held too remote.^'' But where the devise is to a religious society, at the death of the wife of testator, to be 86 /n re Gyde (Ch.), 78 Law. T. Comstock, 51 Conn. 352; First So- Rep. 449; Chamberlayne v. Brock- ciety of M. E, Church v. ett, L. R. 8 Ch. 206; Jocelyn v Nott, 44 Conn. 55; Parker v Churchill, 104 Ga. 122; 30 S. E 642; Crerar v. Williams, 145 111 625, affirming, 44 111. App. 487 Brooks V. Belfast, 90 Me. 318 State V. Holmes, 115 Mich. 456; John's V7ill, 30 Ore. 494; 47 Pac 341; 36 L. R. A. 242. 87 Vidal V. Philadelphia, 2 How 127; Hayes v. Pratt, 147 U. S 557; Jones v. Habersham, 107 U S. 174; Quid v. Hospital. 95 U Clark, 41 Mich. 730; Chase v. Stockett, 72 Md. 235 (the trustees to become incorporated if they wished) ; Lane v. Eeaton, 69 Minn. 141; 71 N. W. 1031; 38 L. R. A. 669; Keith v. Scales, 124 N. Car. 497; Pepper's Estate, 154 Pa. St. 331 ; Emory College v. Shoemaker College, 92 Va. 320. 88 Bond V. Home for Aged Wo- men, 94 la. 458; 62 N. W. 838; Booth V. Church, 126 N. Y. 215; Leonard v. Burr, 18 N. Y. 96. S. 303 ; Field v. Drew Theological 89 People v. Simonson, 126 N. Y. Seminary, 41 Fed. 371; Coit v. 299. LAW OF WILLS. *^" used as a parsonage only, to revert to testator's heirs if such use shall cease, and such society incorporates during the con- tinuance of the life estate, it may take.^*^ But where the devise is to a charity, and upon a given event over to another charity, the gift is generally upheld, even though the event is so remote" that it may not occur during the time limit fixed hy the rule. The reason of this exception is generally said to be that since restraints on alienation are tolerated in charitable bequests, and since the estate has vested in the first charity within the time limited by the rule, the policy of the law is no more violated by a change of use from charity to charity, than by a continuance of the use in the first charity.^^ A devise to a charity after a life estate is, of course, not contrary to the rule against perpetuities.^^ §641. Rule against perpetuities as applied to gifts to charitable uses, — Restraint on alienation. A charitable devise is, in another sense, an exception to the rule against perpetuities. If the devise is such that it is rec- ognized by the law as charitable, it may restrain the aliena- tion of property beyond the time fixed by such rule, and hold the property for such charitable use.»» But such restraint soLougheed v. Dykeman's Bap- 93 Russell v. Allen, 107 U. S. 163 ; tist Church, 129 N. Y. 2U; 14 L. Ould v. Washington Hospital, 95 j^ A. 410. ' U. S. 303; Field v. Drew Theologi- ^lin re' Tyler (C. A.), (1891), cal Sera. 41 Fed. 371; Spence v. 3 Ch. 252; Ould v- Washington Widney (Cal.), (1896), 46 Pac. Hospital, 95 U. S. ?03; Russell v. 463; W^oodruff v. Marsh, 63 Conn. Allen 107 U. 8. 163; Jones v. Hab- 125; 26 Atl. 846; Pendleton v. Kin- ersham, 107 U. S. 174; Church v. ney, 65 Conn. 222; Parker v. Trustees, 67 Conn. 554 (to vest Churchill, 104 Ga. 122; Alden v. when first beneficiary should cease St. Peter's Parish, 158 111. 631 ; In- to be in communion with a given . graham v. Ingraham, 169 111. 432; denomination); Odell v. Odell, 10 169 HI. 472; Crerar v. Williams, Allen uviass.), 1; John's Will, 30 145 HI. 625; 34 N. E. 467; Rush Ore. 494; 47 Pac.'341; 36 L. R. A. County v. Dinwiddle, 139 Ind. 128; 242] ' Brooks V. Belfast, 90 Me. 318 ; In re 92Mack's Appeal, 71 Conn. 122 ;p Bartlett, 163 Mass, 509; 40 N. E. 41 Atl. 242; Pendleton v. Kinney, 899; Teele v. Bishop of Derry, 168 65 Conn. 222. Mass. 341; 47 N. E. 422; Wardens, 748 LAW OF WILLS. is to be construed in accordance with the general purpose of the will/'*^ Thus, where a will devised lands for a homo for disabled clergymen, and provided that no part of the land should be sold or devoted to other purposes, is not held to forbid the sale of isolated parcels which could not be used with the bulk of the estate.^" §642. Accumulations for charitable purposes. In the third sense of the word charitable devises are ex- ceptions to the rule against perpetuities. Property may be granted to accumulate for a period beyond the time fixed for ordinary accumulations, and if the fund is to be devoted to charity, and if it vests within the time limited, the devise will be upheld.^® Thus, a devise in which ten thousand dol- lars of the income was to be added annually to the principal for one hundred years, and the residue of the income was to be devoted to educational purposes was held valid.^'^ But accumulations may be for too long a period to be permitted by the local statute even for charitable uses.^* §643. Who may be beneficiaries of a charitable devise. Any class of individuals may be beneficiaries under a char- itable devise. Under the definition of a charitable trust^^ it is etc. V. Attorney General, 164 Mass. berlayne v. Brockett, L. R. 8 Ch. 188; Jackson v. Phillips, 14 Allen 206 (Mass), 539; Odell v. Odell, 10 Al- 244 len (Mass.), 1; Penny v. Croul, 76 125 Duggan V. Slocum, 83 Fed. Woodruff V. Marsh, 63 Conn. Tngraham v. Ingraham, 169 Mich. 471; 5 L. R. A. 858; Lane v. 111. 432; 169 111. 472: Phillips v. Eaton, 69 Minn. 141; 30 L. R. A. Harrow, 93 lo. 92; Wardens, etc. 669; Moore v. Moore, 25 Atl. 403; v. Attorney General, 164 Mass. 188; In re John Mercer Home, 162 Pa. In re Bartlett, 163 Mass. 509; Odell St. 232; Mills v. Davison, 54 N. J. v. Odell, 10 Allen, 1; Tainter v. Eq. 659; Webster v. Wiggin, 19 R. Clark, 5 Allen, 66; Nelson v. Cush- I. 73; Staines v. Burton, 17 Utah, ing, 2 Cush. 519; American Acad- 331. emy v. Harvard College, 12 Gray 94 See Sees. 634-637. 582; Webster v. Wiggin, 19 R. I. 95 In re John C. Mercer Home, 73. 162 Pa. St. 232. ot Woodruff v. Marsh, 63 Conn. 96 Harbin v. Masterman (1894), 125 : 26 Atl. 846. 2 Ch. 184; Society v. Attorney Gen- 98 ingraham v. Ingraham, 169 eral, 3 Russ. 142 ; Attorney General 111. 432, 472. v. Bishop, 1 Bro. Ch. 444 ; Cham- 99 See Sec. 639. LAW OF WILLS. 749 not necessary that the beneficiary be described with that cer- tainty that is necessary in ordinary devises and bequests. In- deed, it is said that the uncertainty of the beneficiary is an essential characteristic of the charitable devise.^ °^ The extent to which uncertainty is allowed is by no means the same in the different jurisdictions. There is the widest divergence, from the utmost liberality on down to the very narrowest constructions in determining the validity of char- itable trusts with reference to the certainty of the benefi- ciaries. Thus a devise to the executors "to distribute among such charitable institutions as they may see fit" is held valid in some states,^*^^ and is held invalid elsewhere.^^^ Thus a gift to the executors "for any charitable institution they may select or think of benefiting, to perpetuate my memory," was held void, being too specific for a general charity, and too in- definite for an ordinary devise.^ ^^ So where the general outlines of the charity are indicated and trustees selected, with discretionary powers for selecting the beneficiaries, such a devise is held in some states as void for indefiniteness.^^^ But in the greater number of states a more liberal rule is adopted, and where the general purpose of 100 Russell V. Allen, 107 U. S. "boys and girls of California"); 163; Wood v. Paine, 66 Fed. Rep. Long v. Gloyd, 25 Wash. L. 807; Hinckley's Estate, 58 Cal. 457; Rep. 50; Moran v. Moran, 104 lo. Old South vSociety v. Crocker, 119 216; 3fl L. R. A. 204 (a bequest to Mass. 1; Weber v. Bryant, 161 be divided among the Sisters of Mass. 400; Sowers v. Cyrenius, 39 Charity without any further de- O. S. 29. scription of the beneficiaries. Here 101 Sickles v. New Orleans, 80 Fed. no discretionary power was given 868; Powell v. Hatch, 100 Mo. 592; to the trustees) ; Tingling v. Mil- Kinike's Estate, 155 Pa. St. 101; ler, 77 Md. 104; 26 Atl. 491; (a Murphy's Estate, 184 Pa. St. 310; devise to the "needy poor of said Sawtelle v. Witham, 94 Wis. 412. church," the church being unincor- 102 Burke's Succession, 51 La. porated) ; Wheelock v. American Ann. 538; 25 So. 387; People v. Tract Society, 109 Mich. 141 (a Powers, 147 N. Y. 104; Fairchild devise to trustees to pay money to V. Edson, 154 N. Y. 199 ; Read v. certain charities in such sums as Williams, 125 N. Y. 560. they deemed proper, or to such 103 Burke's Succession, 51 La. worthy poor girls as they should Ann. 538. select) ; Society v. Moll, 51 Minn. 104 People' ca; re?. V. Cogswell. 113 277; 53 N. W. 648 (a devise to Cal. 129; L. R. A. (in trust for the "those members of the 'Society of 750 LAW OF WILLS. the charity is indicated discretionary powers in the trustees for the selection of the beneficiaries do not vitiate the tiiist.^°^ the Most Precious Blood' who are under my control and subject to my authority at my death") ; Fair- child V. Edson, 154 N. Y. 199 (a bequest to trustees to be by them divided among such "incorporated religious, benevolent and charitable societies of the City of New York" as they should select) ; People v. Powers, 147 N. Y. 104 (a like de- vise in the City of Rochester) ; Fosdick V. Hempstead, 125 N. Y. 581; 11 L. R. A. 715; Alberyv. Ses- sions, 2 Ohio N. P. 237; 3 Ohio Dec. 330; Brennan v. Winkler, 37 S. Car. 457; 16 S. E. 190 (a devise "to educate young men for the priesthood or to educate individual boys and girls" ) ; Jones v. Green, Tenn. Ch. App. 36 S. W. 729; Fi- field V. Van Wyck, 94 Va. 557 (a bequest to trustees "for the bene- fit of the New Jerusalem Church as they shall deem best") ; Pack v. Shanklin, 43 W. Va. 304; 27 S. E. 389 (a devise to the "trustees of each of these causes, home missions, foreign missions, American Bible Society of the Southern Presbyte- rian Church," where there were no such trustees. This could not be treated as a devise to the trustees of the general assembly of the Pres- byterian Church in the United States) ; McHugh v. McCole, 97 Wis. 166; 40 L. R. A. 724; 72 N. W. 631 (a bequest to a bishop "to be used by him for the benefit and be- hoof of th6 Roman Catholic Church at X," where the church was not incorporated and consisted of sever- al associations and organizations; and also a bequest to him "to be used for the benefit and behoof of the Roman Catholic Church") ; Fuller's Will, 75 Wis. 431 (to pay income to the American Baptist Publication Society of Philadelphia to support a Baptist colporteur and missionary in Wisconsin). 105 Phelps V. Lord, 25 Ont. Rep. 259 (for "the cause of our Lord") ; In re Darling (1896), 1 Ch. 50 (to "the poor and the service of God") ; Wood V. Paine, 66 Fed. 807; Dug- gan V. Slocum, 83 Fed. 244 (a be- quest to trustees to establish a pub- lic library and a protectory for boys, no means for selecting the beneficiaries being indicated) ; John V. Smith, 91 Fed. 827; Strong's Ap- peal, 68 Conn. 527 (a bequest to "the worthy poor of said town . . . as may be in needy and necessitous circumstances . . . always exclud- ing . . . the criminal classes") ; Mack's Appeal, 71 Conn. 122; 41 Atl. 242 ; Grand Prairie Seminary v. Morgan, 171 111. 444, affirming 70 111. App. 575; Phillips v. Harrow, 93 lo. 92; 61 N. W. 434; Bedford V. Bedford, 99 Ky., 273; 35 S. W. 926: Tichenor v. Brewer, 98 Ky. 349 ; 33 S. W. 86 (devise to a bishop "to be by him used for the Roman Catholic charitable institutions in his diocese") ; Fox v. Gibbs, 86 Me. 87 (devise to trustees to use at their discretion for "benevolent and charitable purposes") ; Darcy v Kelly, 153 Mass. 433; Towle v. Nes smith, — N. H. — ; 42 Atl. 900 Bird v. Merklee, 144 N. Y. 544 O'Neal V. Caufleld, 5 Ohio N. P 149; Pennoyer v. Wadhams, 20 Ore. 274: 11 L. R. A. 210 Trim's Estate, 168 Pa. St. 395: Dye V. Beaver Creek Church, 48 S. Car. 444 (a devise to trus- tees "for poor children for their tuition") ; Staines v. Burton, 17 Utah, 331: 53 Pac. 1015 (a devise LAW OF WILLS. 751 A comparison of these sets of cases will show that in some states a devise of realty may be upheld as definite if made to trustees where a similar devise would be held as too indefinite if made directly to the class without the intervention of trustees.^ "^ In many states a devise, either directly or in trust, for an ''unincorporated voluntary association whose membership is fluctuating and uncertain," is void for uncertainty, whether a trustee is interposed or not.^^'^ In Tennessee a devise or bequest to the persons who are in fact trustees of a voluntary unincorporated society, where the will takes effect is valid ; while a similar gift to such trustees as the society may select is invalid.i*^^ j^ some states a dis- tinction is made between bequests of personalty to a voluntary unincorporated association, and devises of realty the former being upheld when the latter would not be.^^^ Legislation also has been busy upon this subject and many apparent conflicts in judicial decision are due solely to pecu- to a bishop of the Mormon Church to spend the income in his discretion for the benefit of church members, where almost all the inhabitants of the community were members of that church) ; Sheldon v. Stock- bridge, 67 Vt. 299; 31 Atl. 414 (a devise to the town of Stockbridge for the relief of the poor -of said town ) ; Protestant Episcopal Educa- tion Society v. Churchman, 80 Va. 718 ( a devise "to be used exclusive- ly for educating poor young men for the Episcopal ministry"). 106 Thus compare Brennan v. Winkler, 37 S. Car. 457 and Dye v. Church, 48 S. Car. 444; Stone V. Griffin, 3 Vt. 400 ; Conklin v. Da- vis, 03 Conn. 377; Alden v. St. Pe- ter's Parish, 158 111. 631 ; Cruse v. Axtell, 50 Ind. 49; Tappan v. Deblois, 45 Me. 130; Halsey v. Prot- estant Episcopal Convention, 75 Md. 275; Jackson v. Phillips, 14 All. 539. 107 Philadelphia Baptist Associa- tion v. Hart, 4 Wheat. 1 ; Brewster v. McCall, 15 Conn. 274; First So- ciety of M. E. Church v. Clark, 41 Mich. 730; Lane v. Eatom, 69 Minn. 141 ; 38 L. R. A. 669 ; White v. Howard, 46 N. Y. 144 ; Downing v. Marshall, 23 N. Y. 366; 80 Am. Dec. 290 ; Holland v. Alcock, 108 N. Y. 312; Fairchild v. Edson, 154 N. Y. 199; Rhodes v. Rhodes, 88 Tenn. 637; Wilmoth v. Wilmoth, 34 W. Va. 426. 108 Sheets v. Hardin (Tenn.), 48 S. W. 207 ; Daniel v. Fain, 5 Lea. 319; Reeves v. Reeves, 5 Lea. 644. 109 Wellbeloveu v. Jones, 1 Sim. & Stu. 40; Johnstone v. Harrowby, 1 De G. F. & J. 183; Williams v. Pearson, 38 Ala. 299; Hadden v. Dandy, 51 N. J. Eq. 154; 32 L. R. A. 625; Evangelical Association's Appeal, 35 Pa. St. 316; Witman v. Lex. 17 Serg. & R. 88 ; 17 Am. Dec. 644. 752 LAW OF WILLS. liarities of statute law. Thus, after the magnificent devise of Samuel J. Tilden was held void for uncertainty/^" the legislature altered the rule to prevent a recurrence of such a failure, and now allows much greater liberality in indefinite beneficiaries.^ ^^ §644. Charitable devises to public corporations. A public corporation may ordinarily be the beneficiary of a charitable devise; or may take as trustee for the benefit of its members or of certain specified classes of them. The state may be the beneficiary of a charitable devise,^^^ but the state treasurer can not accept the devise for the state. The state legislature alone has this power.^^^ A devise may be made to a town, city or other municipal corporation as trustee for charitable purposes,^ ^'^ or to a hoard, of county conmiissioners,^^^ or to a board of water commis- sioners,^ ^^ and if the town should be imwilling to accept,^ ^'^ or be not authorized by its charter to accept,^ ^^ equity will ap- point a new trustee and the devise will not fail. The fact that the city could not have levied a tax for the char- itable purpose specified in the will does not prevent the devise 110 Tilden v. Green, 130 N. Y. v. Cole, 94 Wis. 617; 69 N. W. 29. 986. 111 Dammert v. Osborn, 140 N. Contra, as to a city • Daily v. New Y. 30. Haven, 60 Conn. 314; 14 L. R. A. 112 Jn re Yale University, 67 69. Conn. 237 ; State v. Blake, 69 Conn. us Rush County Commissioners v. 64; Bedford v. Bedford, 99 Ky. Dinwiddie, 139 Ind. 128 (the stat- 273. ute authorized the board to appro- 113 State v. Blake, 69 Conn. 64. priate money to aid in establish- 114 Wood v. Paine, 66 Fed. 807; ing an Old Woman's Home when a Phillips v. Harrow, 93 To. 92 ; Sears certain amount had been given or V. Chapman, 158 Mass. 400; Higgin- devised for such home). son V. Turner, 171 Mass. 586; 51 us Penny v. Croul, 76 Mich. 471; N. E. 172; Barkley v. Donnelly, 5 L. R. A. 8.58. 112 Mo. 561; Mcintosh v. Charles- ii7 Phillips v. Harrow, 93 lo. 92. town, 45 S. Car. 584; Sheldon v. us Wood v. Paine, 66 Fed. 807. Stockbridge, 67 Vt. 299; Beurhaus LAW OF WILLS. 753 from vesting,^ ^^ and the fact that the district to which the devise is made for school purj)oses is not incorporated does not avoid the gift.^"*^ , A devise in tiiist for "charitable and benevolent institu- tions" is a devise to those institutions with the named district which are both charitable and benevolent.^ ^^ A church con- vention which has power by statute to take property by de- vise may act as trustee in a charitable trust.^^^ §645. What are charitable purposes. — Education. Upon the details of what constitute charitable purposes, the courts are not entirely in accord, although there is less marked divergence upon this topic than upon some others under the title of Charitable Trusts. • Education is . held to be a charitable use, where the recipi- ents of the gift are so indefinite as to render the grant char- itable.^ ^^ Thus, a devise to a state to establish a permanent school fund is a charitable devise.^-"* So a devise for the benefit of public schools generally is a charitable devise, even though taxation provides such schools already.^-^ A pro- vision prohibiting religious or denominational teaching in 119 Phillips V. Harrow, 93 lo. 92- (to aid the religious societies of the city to build and maintain a foundling hospital and to aid the poor and needy of the city). Contra, Darley v. New Haven, 60 Conn. 314; 14 L. R. A. 69; Bullard V. Shirley, 153 Mass. 559; 12 L. R. A. 110 120 Sears v. Chapman. 158 Mass. 400. 121 People V. Powers, 147 N. Y. 104. 122 Halsey v. Coaivention of P. E. Church, 75 Md. 275. i23Birchard v. Scott, 39 Conn. 63 ; Doughten v. Vandever, 5 Del. Ch. 51; Fox v. Gibbs, 86 Me. 87; Grand Prairie Seminary v. Morgan, 171 111. 444; John's Will. 30 Ore. 494 ; Attorney General v. Parker, 126 Mass. 216; DeCamp v. Dobbins, 29 N. J. Eq. 36; Clement v. Hyde, 50 Vt. 716; Dodge v.' Williams, 46 Wis. 70; Alniy v. Jones, 17 R. I. 265. 124 Bedford v. Bedford, 99 Ky. 273; 35 S. W. 926; Sears v. Chap- man, 158 Mass. 400; In re Bartlett, 163 Mass. 509 ; Attorney General v. Briggg, 164 Mass. 56l ; Almy v. Jones, 17 R. I. 265. 125 John V. Smith, 91 Fed. 827 ; Handley v. Palmer, 91 Fed. 948; Green v. Blackwell (N. J. Eq.) ; 35 Atl. 375; John's Will, 30 Ore. 494: 47 Pac. 341: 36 L. R. A. 242; Bedford v. Bedford, 99 Ky. 273; Davis v. Barnstable, 154 Mass. 224. 754 LAW OF WILLS. such school, is valid.^^e ^-^^ ^ devise to an unincorporated state university is a valid charitable devise.^ ^^ So is a devise to establish a poMechnic institute.^^s g^ ^g ^ devise to existing educational institutions of a private nature,^ ^^ and to parochial schools,^ ^° and a devise to trustees for paying the tuition of poor children.^ ^^ So are devises to educate young men, one at a time, for the priesthood.^ ^^ So a bequest in trust to offer prizes for essays upon med- ical subjects, and to pay for printing and circulating such essays, is a valid charitable bequest.^ ^^ So is a devise to pro- vide prizes for works of art, the fund ultimately to go to an art institute„^^^ Also devises for the education of specific classes, such as the deaf, is a charitable devise.^ ^^ But a de- vise to the public charities in certain specified districts was held not to include a theological seminary.^ ^^ §646. Public libraries. Public libraries are recognized by the courts a most val- uable means of education, and devises for such purposes are 126 John's Will, 30 Ore. 494; 36 i3i Dye v. Beaver Creek Church, L. R. A. 242. 48 S. Car. 444; to the same effect i27RQyer's Estate, 123 Cal. 614; is White v. McKeon, 92 Ga. 343. 56 Pac. 461. 132 O'Neal v. Caufield, 5 Ohio N. 128 People, Ellert v. Cogswell, P. 149. (General Education) : /n re 113 Cal. 129. Rymer (C. A.), (1895), 1 Ch. 19; 129 Spence v. Widney, — Cal. — ; 64 L. J. Ch. (N. S), 86 (Theologi- 46 Pac. 463; Abend v. Endowment cal Seminary) ; Barnard v. Adams, Fund Commission, 174 111. 96, af- 58 Fed. Rep. 313 (2 at a time); firming 74 111. App. 654; Grand Field a'. Drew Theol. Sem. 41 Fed. Prairie Seminary v. IN'organ, 171 111. 371. 444; Curling v. Curling, 8 Dana i33 Palmer v. Union Bark, 17 R. (Ky. ) , 38 ; Blackbourn v. Tucker, 72 I. 627. Miss. 735; 17 So. 737 (though void "4 Almy v. Jones, 17 R. I. 265; as to realty, yet valid as to person- 12 L. R. A. 414. alty) ; Taylor v. Bryn Mawr Col- 135 Farrington v. Putnam, 90 Me. lege, 34 N. J. Eq. 101 ; Franklin v. 405 ; 37 Atl. 652 ; North Carolina Armfield, 2 Sneed (Tenn.), 305. School v. North Carolina Institute, 130 Hanson v. Little Sisters of 117 N. Car. 164. the Poor, 79 Md. 434; 32 L. R. A. i36 Ross v. Ross, 25 Can. S. C. 293; Andrews v. Andrews, 110 111. 307. 223; Keith v. Scales, 124 N. Car. 497. LAW OF WILLS. 756 upheld as charitable.^ ^7 ^nd a library whose reading-room is free to the general public, ' though only paying subscribers can take out books, the money thus obtained being used to buy new books, is held to be a public library, so that a devise to it is charitable.^3* So is a devise for a club and reading- room for the village, which by terms of the devise was to be kept up ''for the furtherance of conservative principles and religious and mental improvement, and to be kept free from intoxicants and dancing." ^^^ An astronomical observatory is i^rima facie for public bene- fit, and is therefore a charity.^^*^ §647. Aid of poor and destitute. Devises in aid of the poor and destitute are always upheld as charitable devises if the other requisite elements of a char- ity are present.^^^ The beneficiaries may be limited to the poor of a certain avea,''^ and in some states the beneficiaries 137 Duggan V. Slocum, 83 Fed. 244; Creerar v. Williams, 145 111. 625, affirming 44 111. App. 497 ; Das- comb V. Marston, 80 Me. 223 : Weber V. Bryant, 161 Mass. 400; In re Bartlett, 163 Mass. 509; St. Paul's Church V. Attorney General, 164 Mass. 188; Manners v. Library Co. 93 Pa. St. 165; Penny v. Croul, 76 Mich. 471; 5 L. P. A. 858 (Scien- tific Library). 138 Phillips V. Harrow, 93 lo. 92. 139 /«, re Scowcroft (1898), 2 Ch. 638. 140 Spence v. Widney, — Cal. — ; 46 Pac. 463. 141 Zn re Geek, 69 L. T. N. S. 819; In re Darling (1896); 1 Ch. 50 (a devise "to the poor") ; Dug- gan V. Slocumb, 83 Fed. 244; Wood V. Paine, 66 Fed. 807; Strong's Ap- peal, 68 Conn. 527 (devises to the "worthy poor of said towTi") ; Phil- lips V. Harrow, 93 lo. 92 (a devise to the "poor and needy people" of a given city "who are dependent on their own labor for a livelihood") ; Doughten v. Vandever, 5 Del. Ch. 51; "Hunt V. Fowler, 121 111. 269; Dascomb v. Marsten, 80 Me. 223; McAlister v. Burgess, 161 Mass. 269; 24 L. R. A. 158; Bullard v. Chandler, 149 Mass. 532; 5 L. R. A. 104; Kelly v. Nichols, 18 R. I. 62; 19 L, R. A. 413; Tichenor v. Brew- er, — Ky. — ; 33 S. W. 86 ; Fox v. Gibbs, 86 Me. 87: Wardens, etc. of St. Paul's Church v. Attorney Gen- eral, 164 Mass. 188; Chadwick v. Livesey, 56 N. J. Eq. 453: 41 Atl. 1115, affirming 55 N. J. Eq. 204; Trim's Estate, 168 Pa. St. 395 (a devise "for the benefit of the poor" of a named township) ; Staines v. Burton, 17 Utah, 331 ; 53 Pac. 1015. 142 See some cases especially quot- ed in last note; and Hunt v. Fow- ler, 121 111. 269: Fellows v. Miner, 119 Mass. 541 : Towle v. Nessmith, N. H. — : 42 Atl. 900: Urmey v. Wooden, 1.0. S. 160; Scott v. 756 LAW OF WILLS. may be restricted to the poor of a certain church/'*''^ or to tke 230or of a non-charitable association.^'*"* But in some states a devise to the poor of an unincorporated church or association is held void as too indefinite.^ ^^ Such devises are upheld even where taxation already provides for the poor who are to be benefited by the charity.-^ '**^ So a devise to such institutions a give shelter at night to the poor and homeless is a valid charitable devise.^^'^ Whether the poor may be restricted to the poor relations of testator, so as to form a permanent trust in their behalf, i^ a question of considerable difficulty. The English authori- ties, and some American, hold that a devise in trust for testa- tor's poor relations is valid as a charitable devise ;^'*^ while in others it is held not a public charity, but is held lacking all the peculiarities of a devise to public charity.-'-^^ ;^648. Hospitals and asylums. Devises to establish free hospitals are held to be charita- ble.-^^*^ And a hospital, incorporated without capital stock, and not for any financial benefit of its members, is a charity within this sense.^^^ So devises to establish homes and asy- Trustees, 39 0. S. 153; Trim's Es- "s Yingling v. Miller, 77 (Md.) tate, 168 Pa. St. 395; Sheldon v. 104; 26 Atl. 491. Stockbridge, 67 Vt. 299 ; Sawtelle i^e Strong's Appeal, 68 Conn. V. Witham, 94 Wis. 412; 69 N. W. 527. 72. i^TCroxall's Estate, 162 Pa. St. 143EOSS V. Koss, 25 Can. S. C. 579. 307 ; Conklin v. Davis, 63 Conn. i*8 Attorney General v. College, 377; Penick v. Thorn, 90 Ky. 665; L. R. 4 Ch. 722; Gillam v. Taylor, Bird V. Merklee, 144 N. Y. 544 L. R. 16 Eq. 581 ; Gafney v. Keni- (a devise to certain-named churches son, 64 N. H. 354. "according to the number of mem- i-ts Kent v. Dunham, 142 JNIass. bers to buy coal for the poor of 216 (distinguished, but not over- said churches") ; O'Neal v. Cau- ruled in Darcy v. Kelley, 153 Mass. field, 5 Ohio N. P. 149. 433, where a devise to the use of in In re Buck (1896), 2 Ch. 727; testator's poor relatives, and then Willey's Estate, — Cal. — ; 56 Pac. for the use of the poor generally 550 (a devise to the 'Svidows' and was upheld). See Sec. 643. orphans' fund" of a non-charitable iso Hayden v. Connecticut Hos- association) ; Guilfoil v. Arthur, pital for Insane, 64 Conn. 320; 158 111. 600; Heiskell v. Chickasaw Hearns v. Waterbury, 66 Conn. 98. Lodge, 87 Tenn. 608. i^i Hearns v. Waterbury Hospit- al, 60 Conn. 98. 7!^7 LAW OF WILLS. lums for the orphan, the aged and the infirm are charitable.^ ^^ So is a devise for the benefit of the disabled soldiers and sea- men of the United States, who were engaged in the war of the rebellion.^ ^^ A gift of a farm in trnst for a county home for orphans and the friendless is not invalid because it provides for the establishment of a church therein.^^^ §649. Support of religion. In most jurisdictions the maintenance and support of re- ligion is held to be a charitable use, and a devise for that purpose is upheld if it contains the elements of a valid chari- table devise.i^^ Thus, devises for the erection of buildings for public worship, for keeping them in repair, and the like, are upheld as charitable devises ;i^« or for erecting a church build- ing and a parsonage.^^^ So are devises for supporting preach- ing and other religious work.^^^ So are devises for missionary purposes, whether domestic or foreign.^^^ So is a bequest m trust to publish religious books, where the character of such books is described with sufiicient definiteness.^«*^ So is a de- 152 Hayes v. Pratt, 147 U. S. 557; 509; Teele v. Bishop of Derry 108 Woodruff V. Marsh, 63 Conn. 125; Mass. 341; 38 L. R. A -; 47 N. 26 Atl 846; State v. BLake, 69 E. 422; St. George's, etc. Society v. Conn. 64; Bond v. Home for Aged Branch, 120 Mo. 226 Women, 94 lo. 458; 62 N.W. 838; i^t Pennoyer v. Wadhams, 20 Ingraham v. Ingraham, 169 111. Ore. 274; 11 L. R. A. 210 43l- 169 111 472; Rush County v. iss Conklin v. Davis, 63 Conn. Dinwiddle, 139 Ind. 128; Pell v. 377; Mack's Appeal, 71 Conn. 122; Mercer 14 R. I. 412; Barkley v. Alden v. St. Peter; 158 111. 631, Donnelly, 112 Mo. 561; Chase v. 30 L. R. A. 232; Church v. Stockett' 72 Md. 235. Shively, 67 mi. 493; Sowers v. 153 Holmes v. Coates, 159 Mass. Cyrenius, 39 0. S. 29. 296- 34 N. E. 190. ^=« Dom. etc. Missionary Society \54Rush County v. Dinwiddie, v. Gaither, 62 Fed. Rep 422; Hew- 139 Ind 128 5tt's Estate, 94 Cal. 376; Lane v. ■i55McAmster v. Burgess, 161 Etaon. 69 Minn. 141; 71 N. W. Mass 269- 24 L. R. A. 158; Mur- 1031; Congregational, etc. Mission- phy's Estate, 184 Pa. St. 310. ary Society v. Van Arsdall, - N ..em re Hunter, C. A. (1897), 2 J. Eq. -; 42 Atl. 1047 ; Board o Ch 105 (1897), 1 Ch. 518; Foreign Missions, etc. v. Gulp, 151 Mack's Appeal, 71 Conn. 122; 41 Pa. St 467. .-p x 306- Atl 242- In re Bartlett, 163 llass. leo Kelly v. Nichols, 1/ R. L 306,. 758 LAW OF WILLS. vise to a church directly, Avithout any limitation upon its use,^*'^ and a condition that the minister of such religious society shall always wear a black gown in the pulpit is valid and enforceable.^®^ A gift to a Sunday school is a valid gift to a charity.^ ^'^ And a devise to a religious organization which is not Chris- tian in its claims is a charitable devise.^ *^^ But a private chapel used only by members of testator's family is not such a religious use that the rules of charitable uses apply.^*^^ §650. Masses. At the common law of England devises for masses, and the like, were held to be void as against public policy.^ *^*^ This rule was the outgrowth of judicial decision resting upon the statute of 1 Edw. VI, a statute passed largely for political considerations. In the United States no such statutes are in force, and a devise for the purpose of causing prayers to be said for tes- tator is upheld in some jurisdictions,^®'^ and where such de- vises are not upheld it is not because the nature of the use is against public policy, but because there is in such devise no living beneficiary at all, for whose benefit such devise could be enforced.^®* §651. Cemeteries. A devise to maintain a cemetery is generally upheld as a charity.^ ®^ But a devise to maintain and keep up a private 161 /n re White (C. A.), (1892). is? Hoeffer v. Clogan, 171 111. 462 2 Ch. 41; Hewitt's Estate, 94 Cal. (where it was presumed that the 376. masses would be said in public) ; In te^in re Robinson (1892), 1 Ch. re Sehouler, 134 Mass. 426; Harri- 95. son V. Brophy, 59 Kan. 1 ; 40 L. R. 163 Knight's Estate, 159 Pa. St. A. 721. 500. 168 Festorazzi v. St. Joseph's Cath- 164 Knight's Estate, 159 Pa. St. olic Church of Mobile, 104 Ala. 500. 327; 25 L. R. A. 360; O'Connor v. 165 Butler V. Trustees. 92 Hun, Gifford, 117 N. Y. 275. 96. 169 Moore v. Moore, 50 N. J. Eq. 166 /n re Blundell, 30 Beav. 360; 554; 25 Atl. 403; Sheldon v. Stock- West V. Shuttleworth, 2 Myl. & K. bridge, 67 Vt. 299. 684. 759 LAW OF WILLS. tomb is not held to be a good charitable devise/ ^^unless espe- cially authorized by statute.^^^ But a provision not for creating a trust, but merely ior providing for the funeral of testator's widow, and for erect- ing a suitable monument over her grave, is not a charitable use, since it can Ix. completely -performed immediately upon the death of the widow, thus ending with one life in being A trust, the income to be expended on the burial^ bt and monument of testator has in some cases been upheld. §652. Parks. The establishment of a public park and playground for children, to contain statues of prominent army and navy officers of the civil war, was held a good charitable devise.' So a bequest of a fund, the income of which is m part to be used to ornament the grounds on which the city waterworks is situated is a valid charitable bequest.^^^ §653. Miscellaneous charitable uses. A devise to protect and aid the negroes of the United States has been held valid.^^^ Bequests for the advancement of woman suffrage have been upheld as valid,^^« and a devise for the purpose of promulgating the views of Henry George as to XTO Piper V. Moulton. 72 Me. 155 : said in Ford v. Ford 91 Ky. 572 to Bates V Bates, 134 Mass. 110 ; Hart- come under the heading charitable Tl/- Tl'olf n kMoo'Io ''^:T^^ Estate, 181 Pa. St. r I A Tl3 ShLt ;. Ba'Jr, 109 ; In re Bartlett, 163 Mass. 509 ; 90 r'i 446- 40 L. R. A. 717. 40 N. E. 899. 20 K. 1. 440, *u J.. 1^7 TT S 174 Penny v. Croul, 7G Mich. 471: 171 Jones V. Habersham, 10/ U. b. -reuuy 174; Bronson v. Strouse, 57 Conn. 5 L. R. A 858. ^ ^^ ^^ „ . ,_- 147 Hartson v. Elden, 50 N. J. Eq. i" Lewis' Estate. 52 Pa. St. 4^7^ 5.9. Moore v. Moore, 50 N. J. Eq. Contra, where the land was %Z Nauman v. Weidman, 182 Pa. devised in Canada. Lewis v. Doerle, St. 263; Sheldon v. Stockbridge, 67 28 Ont. Rep. 412. -. 176 Garrison v. Little. 7o 111. App. * Leonard V. Haworth, 171 Mass. 402. T,a,-iUr.« 14 Al Contra, JacksoTi v. Phillips, 14 Al- ^172 Green v. Hogan, 153 Mass. len (Mass.), 539. 462 ; so a similar provision was 760 LAW OF WFLLS. land ownership is upheld as valid/ "^ and for the suppression of vivisection/ '^^ and for volunteer regiment.^ '^^ Powers ancillarv to the execution of a charitable devise may be passed bv will without invalidating the devise. Thus, a devise to build an opera house and orphan asylum, the rents of the opera house to be used in supporting the orphan asylum, was upheld.^ ^'^ Thus power to the trustees to invest personal property in real securities does not render the trust invalid.^ ^^ And such powers as are reasonable must be implied in a chari- table trust. Thus a devise to pay teachers is not void because the will made no specific provision for fuel, janitor service, and the like,^''^^ nor is the trust invalidated by a grant of authority to the judges who appoint the trustees to make rules for their government.-^ ^^ §654. Uses not charitable. Uses which do not come within the definition of charitable use can not be created by devise if vesting at a further time than that limited by the rule against perpetuities, or if the beneficiary is indefinite. Thus, a devise in trust to provide an annual trophy cup as a prize in yachting is not a charity.^ ^** ISTor is an order to trustees to keep testator's house open for ''ministers and others travelling in the service of the truth." i'^^ Where an object not regarded as charitable is included among charitable objects, the devise is avoided. Thus a devise ''for some one or more purposes, charitable, religious, phil- 177 George v. Braddock, 4C K. J. isi /n re Hamilton (1896), 2 Ch. Eq. 757; G L. E. A. 511, reversing 617. 44 N. J. Eq. 124. i^^ Grand Prairie Seminary v. 178 /n, re Foveaux (1895), 2 Ch. Morgan, 171 111. 444. 501 ; 04 L. J. Ch. N. S. 856. i83 John's Will, 30 Oreg. 494 ; 47 179 /n- re Lord Stratheden and Pac. 341; 36 L. R. A. 242. Campbell (1894), 3 Ch. 265; Phil- is* /w re Nottage (1895), 2 Ch. adelphia v. Keystone Battery, 169 649. Pa. St. 526. 185 Kelly v. Nichols, 17 R. I. 306; isoBarkley v. Donnelly, 112 Mo. 19 L. R. A. 413. 561. LAW OF WILLS. 761 anthropic or ," was by very strict construction held bad, not only because of the blank, but as not purely a charitable purpose,^ *^^ and by like construction a devise "to humanity's friend A ... to use and expend the same for the promotion of the religious, moral or social welfare of the people in any locality," was held to include objects not charitable.^ ^'^ §655. The doctrine of cy pres. The question of the validity of charitable devises, and the control of equity courts over them, is somewhat complicated by the different views taken by different courts of the extent of the application of the doctrine which is generally known as the "doctrine of cy pres." The English chancery courts, according to the more prob- able view of the development of equity, assumed, at a very early date, that where it appeared from the will to be tes- tator's intention that the property disposed of by will should be applied to charity in general, and indicated in his will the means whereby such application should be made, and it sub- sequently, by change of circumstances or a change of the law, became impracticable to administer the charitable trust in the manner provided for by testator in his will, the court of equity was empowered to construct a scheme of charitable disposition as near as possible to the original purpose de- scribed by testator in his will, and to apply the property dis- posed of by will to the purposes of the kindred trust. This statement of the origin of the doctrine of cy pres is not unanimously acquiesced in. It is undoubtedly true that equity originated at a time when the distinction between ex- ecutive, legislative and judicial power Avere not marked and distinguished as they now are. The gift was undoul)tedly a source of both executive and judicial power ; the judicial power of a court of equity being a delegation from the crown. In some cases, the courts of chancery exercised powers which were generally held not to be part of their normal judicial 186 /to re Macduff (1896), 2 Ch. 204, affirmed as Cliadwick v. Live- 451. sey, 56 N. J. Eq. 453; 41 Atl. 1115. isT Livesey v. Jones, 55 N. J. Eq. 762 LAW OF WILLS. functions, but to be especially delegated to them under the sign manual of the crown. By this delegated prerogative power the courts of equity often practically create schemes of charitable disposition, and thus preserve a gift which, as it originally stood, would have been too vague and indistinct for execution. The English courts still apply the doctrine of cy pres in the fullest and widest sense of the doctrine. Under their system of government, being unrestrained by a written constitution, the English courts may safely follow their old precedents without disturbing themselves as to whether it is strictly judicial power or power originally of the royal prerogative that they are exercising. A somewhat different question is presented in the United States of America. The written constitution of these states separate executive and judicial power almost entirely, and if a power is recognized in its nature to be executive, the judi- ciary can not exercise it, even though English courts under similar circmnstances might exercise similar power. Accordingly, the question of the extent to which the doc- trine of cy pres originated in principles of equity on the one hand, or in the prerogative of the royal crown on the other, is a very important question for the American courts to solve, in determining the extent to which they will recog- nize the doctrine of cy pres as in force in their jurisdiction. The states which do not recog-nize charitable trusts as a branch distinct from other trusts need not be considered here. Of the states which recognize charitable trusts as a class of trust having peculiarities of its own, three classes may be made, according to the view which they taie of the doctrine of cy pres. States of the first class reject the doctrine of cy pres en- tirely. They take the view that it is not a power strictly ju- dicial in its nature; that it originates in the exercise of the royal prerogative, and could not under our form of gov- ernment be exercised by a court.^^^ 188 Keith V. Scales, 124 N. C. "It is settled that the doctrine of 497; MeHugh v. McCole, 97 Wis. vy pres— as it is exists in England, 166; 40 L. R. A. 724. and as it has been applied in some LAW OF WILLS. ' ^^ The second class of states takes the view upon the histor- ical side of the question that the doctrine of cy pres orig- inated to a very considerable extent in the doctrines of equity as distingiiished from the exercise of the royal prerogative, and accordingly hold that they have a right to apply the doc- trine as fully as it was recognized and applied in England, apart from the exercise of power in England under the sign manual of the cro^vn.^^^ In states of this class will be found some in which the doctrine of cy pres was not recognized originally, but in which it has been to some extent recognized and adopted by stat- ute.i^° In states taking this view of the doctrine of cy pres it has been held that where the will shows the intention of the testator to promote the cause of education in a certain school district, and that a bequest in the will for the support of the public school of the specified district is a means of carrying out this general intention, upon the abolition of the school district the^fund should be applied to the education of persons residing in the territory comprised in the former district, even though an incidental benefit to others should result.^ ^^ In these states the applicability of the doctrine of cy pres turns upon the question of whether the will shows that testator's general intention was that the property disposed of by will should be applied to charity in any event, the form which the of the states of the American Union, 27G; Ruth v. Oberbrunner, 40 Wis. whereby trust provisions are admin- 238. istered and executed as near to the i89 Church of Jesus Christ of the presumed intention of the donor or Latter Day Saints v. The United founder as may b^is not recog- States, 136 U. S. 1 ; Ingraham nized or acted upon by the courts v. Ingraham, 169 111. 432, 472; of this state as a part of the ju- Forbes v. The Ft. Scott Board of dicial power of the state. The doc- Education, 7 Kansas App. 452; At- trine rests upon a prerogative or torney General v. Briggs, 164 Mass. sovereign power, is not strictly ju- 561; 38 U. R. A. 629. dicial in its nature, and consequent- i9o Woodruff v. Marsh. 63 Conn. Iv the courts of the state could not 125; 38 American State Reports. exercise it." 346 ; Allen v. Stevens. 22 Misc. (N. McHugh V. McCole, 97 Wis. 166; N.). 158; 49 N. Y. Supplement. 431. 40 L. R. A. 724 ; Fuller's Will, 75 i^i Attorney General v. Briggs, Wis. 431 ; Heiss v. Murphy, 40 Wis. 164 Mass, 561. 764 LAW OF WILLS. charitable gift assumes being testator's particular intent; or whether he intended the gift not to be devoted to charity at all unless in the manner specified in his will.-^^^ Thus where a testa- tor devised property for the purpose of building a chapel, which purpose failed because the population of that place was de- creasing in numbers so as to no longer support a chapel, and the ecclesiastical authorities had abolished the official standing of the church at such place, it was held that as the will did not show the testator's general intention to benefit the people of that town, the court could not, under the doctrine of cy pres, allow the property devised to be devoted to repairing a neighboring parish church, or to enlarge a graveyard for the parish. The bequest was held to fail entirely.^ ^^ States of the third class take a position intermediate between the states of the other two classes. They decline to recognize the English doctrine of the courts of chancery to construct a scheme of charitable disposition as a complete substitute for one which has failed. On the other hand, they do recognize the power of the courts to provide different methods of carrying out the scheme created by testator, where such scLeme as a whole is practicable, though certain details may not be. Thus, where testator created a trust fund for educational purposes, and provided that it should be invested in certain specified securities, it was held that the court could direct its investment in other securities where those specified in testator's will had become non-existing or worth- less.^®^ 192 "In the administration of purpose as possible. This is corn- trusts, under the general equity ju- monly known as the doctrine of cy risdiction of the court, it is an old pres, which, in its last analysis, is and familiar principle that if the found to be a similar rule of ju- original purpose of a public charity dicial construction designed to aid failed and there are no other ob- the court to ascertain and carry jects to which, under the specified out, as near as may be, the true terms of the trust, the funds can intention of the donor.'' Doyle v. be applied, the court may dtermine Whalen, 87 Me. 414; Jackson v. whether, in the event that has hap- Phillips, 14 All. ,539. pened, it was not the probable in- iss Teele v. The Bishop of Der- tention of the donor that his gift ry, 168 Mass. 341; 38 L. R. A. 629. should be applied to some kindred i94 Mclntire v. Zanesville, 17 O. charity, as near like the original S. 352. •LAW OF WILLS. 765 Where testator had created a trust fund for the education of the poor children of a certain city, which plan subsequently became impracticable by reason of the creation of free public schools supported by taxation, it was held that the trust fund should not be paid into the treasury of the school board, but that it should be devoted to any other means in aid of the education of the poor children incidentally to and ancillary of the public school system, as the trustees might deem advis- able.^ ^^ Where testator provided for the education of children of a certain city it was held that this included the city as sub- sequently enlarged by annexation of territory.^ ^"^ 195 Mclntire v. Zanesville, 17 0. ment of night schools for such poor S. 352. (The decree in this case children as could not attend the day pointed out the relief of the wants schools, would be a substantial com- and interests of poor children in pliance with the trust.) such a way as to make their edu- i9<5 Mclntire v. Zanesville, 17 O, cation in the public schools possi- S. 352; Zanesville Canal and Manu- ble, as a proper expenditure of the facturing Company v. The City of trust fund; and in its opinion the Zanesville, 20 Ohio. 483. court intimated that the establish- 766 LAW OF WILLS. CHAPTER XXIX. VESTED AND CONTINGENT INTERESTS. §656. Vested and contingent interests Definitions, A vested interest is one in which there is a present fixed right, either of present enjoyment or of future enjojTnent.^ A contingent interest is one in which there is no present fixed right of either present or fntnre enjovment; but in which a fixed right will arise in the future under certain specified contingencies.^ It can readily be seen that it is often a matter of great im- portance to determine whether a beneficiary imder a will takes a vested or a contingent interest. We are met at the outset, however, with considerable confusion in definition. The courts are, by no means, harmonious as to the true test for determining whether an interest is vested or contingent. It is well settled that where, under the terms of the gift, there is an ascertained person in existence who could take the remainder in possession immediately upon the determin- ation of the particular estate, and, by the terms of the gift, 1 Cox V. Handy, 78 Md. 108. in presenti, although to be enjoyed 2 Kingman v. Harmon, 131 111. in the future. A contingent re- 171; Hale v. Hobson, 167 Mass. mainder is an estate to vest upon ^^'' the happening of some future "A vested remainder is an estate event." Spear v. Fogg, 87 Me. 132. LAW OF WILLS. '"' the particular estate must determine by the mere efflux of time, the estate is vested.^ Where, under tiie terms of the gift, there is no ascertained person in being who could take if the particular estate were at once to determine, or where the remainderman is ascer- tained by the terms of the gift but he can not take upon the determination of the praticular estate, unless some other or further event occurs before such determination, it is well settled that the estate is a contingent one.^ There is, however, a large class of cases which some courts class as vested and others as contingent. These are cases where there are in existence persons who, by the terms of the gift, could take if the particular estate were to determine at once, but who may bv conditions subsequent, be incapable of taking if the particular estate should determine at a future time. In this class of cases the usual contingency inserted is either an ex- press or implied provision that any of the beneficiaries who die before determination of the particular estate shall thereby be divested of all their interest in remainder, and that sub- sequently born beneficiaries may take; as where the estate is given' to one for life and upon his death to such of his chil- dren as may be alive at the death of the life tenant. It is, m such cases, impossible to determine who the beneficiaries will be, until the particular estate determines. In cases like this, some authorities call the interest of the children a vested in- terest, subject to be divested by a condition subsequent. 3Mc4rthur v. Scott, 113 U. S. 119, citing and following Putnam 340 ; Cox V. Handy, 78 Md. 108. v. Story, 132 Mas. 205 ^ Darhng v. ^kingman v. Harmon, 131 111. Blanchard, 109 Mass 16; Blan 171; Hale v. Hobson, 167 Mass. chard v. Blanchard 1 Allen, 223 397; Shaw v. Eckley, 169 Mass. Smither v. W^ock, ^ V-. 233, 119; Wright V. Brown, 116 N. Car. L'Etorneau v. Henquenet 89 Mich. 26; Richey v. Johnson, 30 O. S. 428; 28 Am. St. Rep^ 310. 288; Hamilton v. Rodgers, 38 O. S. "When the remainder is so lim- 2^2 ited as to take effect in possession, 5Ke Pickworth (C. A.), 1809, if ever, immediately upon the deter- 1 Ch 642- 68 L. J. Ch. N. S. 324; mination of a particular estate, Kean V. Tilford, 81 Ky. 600; Gough which estate is to determine by an V Clifton Land Co. (Ky.). 43 S. event which must unavoidably ha p- W 405- Shaw V. Ecklev, 169 Mass. pen by efflux of time, the remainder 768 LAW Ol'' WILLS. A remainder to A on the determination of a particular estate which, is made conditional upon his surviving until the determination of the particular estate, and adding a gift over in case the remainderman dies without issue before the par- ticular estate determines, is held to be a vested and not a con- tingent one.^ In other cases such a gift is treated as a contingent devise on the theory that it is impossible to determine who the re- maindermen are until the determination of the particular es- tate.'^ So a remainder to the children of A or the survivors of them at the time of taking possession is said in some juris- dictions to be a contingent remainder.^ The view taken in these cases makes every gift to a class to be determined at the determination of the particular estate a contingent remainder. Thus a gift tp A for life and at hia death to his children and the heirs of such as might be de- ceased,^ or to. A's children or the survivors of them,^*^ or to A's legal heirs,-^^ is held, where such view obtains, to be a con- tingent remainder. vested in interest as soon as the remainder man is in esse and ascer- tained; providing that nothing but his o\^'n death, before the determi- nation of the particular estate, will prevent such remainder from vest- ing in possession." Moore v. Lj-ons, 25 Wend. (N. Y.), 119, quoted in Cox v. Handy, 78 Md. 108, citing and following Doe, lessee of Poor v. Considine, 6 Wall. U. S. 458 ; McArthur v. Scott, 113 U. S. 340; Blanchard v. Blan- chard, 1 Allen, Mass. 223. 6 See cases cited in last note. The reason, which on principle, seems sound, is that during A's life there is a remainderman in being capable of taking at once if the particular estate were to determine. 7 Owen V. Eaton, 56 Mo. App. 563; Sager v. Galloway, 113 Pa. St. 500 (a gift to A on his reaching 21). sMcClain v. Capper, 98 lo. 145; 67 N. W. 102; Spear v. Fogg, 87 Me. 132, citing Richardson v. Wheatland, 7 Met. 169; Putnam V. Gleason, 99 Mass. 454; Smith V. Rice, 130 Mass. 441. "Our conclusion ( in holding the devise contingent) is much aided by the language of the will, mak- ing the devise in this; that the division is to be made between the children named, their heirs or sur- vivors of them; indicating that the property was to rest in Mar- garet if she survived, and if not, in her heirs, or their survivors, as they might be living to receiA^e it." McClain v. Capper, 98 lo. 145. 9 Hunt v. Hall, 37 Me. 363. 10 Spear v. Fogg, 87 Me. 132; Denny v. Kettle, 135 Mass. 138. 11 Read v. Fogg, 60 Me. 479. LAW OF WILLS. 769 §657. Importance of distinction between vested and contingent interests. The distinction between a vested and contingent interest is of practical importance in many cases. For instance^ if the remainderman dies before the life tenant his interest, if vested and unconditional, passes, to his heirs or next of kin,^^ or to his devisee.-^^ Under the laws njion the subject of the set- tlement of decedent's estate, however, payment of a legacy in money or a bequest of personal property should be made to the executor or administrator of the deceased beneficiary, and not directly to his next of kin.^^ A contingent remainder fails under such circumstances.^^ A contingent interest may, of course, be assigned when the contingency is one of the person, subject, of course, to the contingency that the interest may never vest.-^^ §658. General rule of construction as between vested and con- tingent interests. As between the vested and contingent interests the law, wherever possible, construes the interest as vested. "The law alwaj^s gives preference to vested over contingent remainders. It does not favor the abeyance of estates. Where it is a remain- der after a life estate, it is regarded as a vested remainder, and the possession only is postponed."^''' The law favors early vesting 12 Holcomb V. Wiig'lit, 5 Appeal "Such interest is devisable, trans- D. C. 76; Cliapin v. Parker, 157 ferable and assignable, subject, of Mass. 63; Bancroft v. Fitch, 164 course, to the contingency upon the Mass. 401 ; In re Seebeck, 140 N. Y. happening of which its value de- 241. pends." Curamings v. Sterns, 161 isMcClain v. Cappei-, 98 To. Mass. 506. 145. iTMcConnell v. Stewart, 169 111. 14 Banning V. Gottshall, 62 0. S. 374; Bethea v. Bcthea, 116 Ala. 210: Chafee v. Maker, 17 B. I. 739. 265; Beckley v. Leffingwell, 57 Conn. isMcClain v. Capper, 98 To. 145; 163; Newberry v. Hinman, 49 Conn. Spear v. Fogg, 87 Me. 132; Hale 130; Legwin v. McBee, 79 Ga. 430: v. Hobson, 167 Mass. 397. Gingrich v. Gingrich, 146 Ind. 227 ; 16 Shaw V. Eckley, 169 Mass. 119; Hoover v. Hoover, 116 Ind. 498; Wright V. Bro^vn, 116 N. C. 26; Borgner v. Brown, 133 Ind. 391; Watson v. Smith, 110 N. C. 6; Wright v. Charley, 129 Ind. 257; Foster v. Hackett, 112 N. C. 546. Scofield v. Olcott, 120 111. 262; 770 LAW OF WILLS. of estates with especial insistence when a possible construc- tion is presented which will delay vesting so long as to violate the rule against perpetuities. In such case, if it can be done consistently with testator's intention, the law will adopt the construction which causes the estate to vest within the period fixed by the rule.^* As long as testator does not violate the rule against perpetuities, the law will permit him to create a contingent remainder, and while a construction which favors early vesting rather than deferred vesting is always pre- ferred, the question is, after all, one of the intention of the testator. If he clearly shows his intention to defer the vest- ing of the estate, that intention must be given effect as long as it does not violate the rule against perpetuities.^^ In determining testator's intention, great difficulty is some- times experienced on account of the fact that testator has often no clear idea himself when the estate is to become vested, and probably does not appreciate the difference between vested and contingent interests. Some general rules have been worked out for ascertaining testator's probable intention, whicii are given in the following sections. These rules are strictly rules of construction, and have no application where the will clearly shows whether testator intended to create a vested or a contingent interest. §659. Interests in realty Effect of postponement of possession. Where testator devises real property by will to specified per- sons in being, without imposing any additional contingencies upon their taking the property, the fact that they are not to enter into enjo\mient of possession of the land devised until after the determination of the particular estate given by will Grimme v. Friodlieh, 104 111. 245; Eq. 28; Linton v. Laycock, 33 O. S. Pike V. Stephenson, 99 Mass. 188; 128; Bridgewater v. Gordon, 2 Crisp V. Crisp, 61 Md. 149; Cox Sneed. (Tenn.), 5; Weatherhead v. V. Handy, 78 Md. 108; Stokes v. Stoddard. 58 V\. 529; Stokes v. Weston. 142 X. Y. 433; Byrnes v. Van Wyck, 83 Va. 724; Baker v. Stilwell, 103 N. Y. 453; Campbell McLeod. 79 Wis. 534; Scott v. V. Beaumont. 91 N. Y. 464; Penn- West, 63 Wis. 562. sylvania Co.'s Appeal, 109 Pa. St. ^ See Sec. 465. 489; Smith v. Hilliard, 3 Strobh, is Denn v. Baorshaw, 6 T R. 512; 211; Kimble v. White, 50 X. .T. Shaw v. Eckley, 169 Mass. 119; LAW OF WILLS. 771 to some other person, does not prevent the interest of tke re- maindermen from being a vested interest upon the death of the testator.-" Where the devise is to a remainderman 'from and after," the death of the life tenant, it is held that the remainders vest at the death of testator.^^ So where there is a direction to ex- ecutors to take charge of and improve real estate until a cer- tain time, when it is to belong to designated persons, these per- sons take a vested remainder at testator's death.^^ Equitable estates, the enjoyment of which is postponed until the determination of the life estate, vest upon testator's death in the same manner as legal estates,^^ So where the remain- dermen were to enter into possession on arriving at a certain age, an intermediate estate being created and no contingency or limitation being expressed, the remainder vests at once on testator's death.^'* Hayes v. Tabor, 41 N. H. 521; Stri- ker V. Mott, 28 N. Y. 82; Wright V. BrowTi, 116 N. Car. 20; Hamil- ton V. Rodgers, 38 O. S. 242; Bald- win V. Humphrey, 4 Ohio C. C. 57; In re Spencer, 16 R. I. 25. 20Halsey v. Goddard, 86 Fed. 25; Harrison v. Moore, 64 Conn. 344; Wright V. Gooden, 6 Hous. (Del.), 397 ; Marshall v. Augusta, 5 App. D. C. 183; Woodward v. Stubbs, 102 Ga. 187; Knight v. Pottgieser, 176 111. 368; Springer v. Savage, 143 III. 301; Aspey v. Lewis, 152 Ind. 493 ; McKensey v. McKensey, — Ky. — (1895) ; 28 S. W. 782; Wil- liams V. Williams, 91 Ky. 547; Ernst V. Northern Bank (Ky.), (1899); 49 S. W. 333; Woodman V. Woodman, 89 Me. 128 ; Dulaney V. Middletown, 72 Md. 67 ; State ex rel. V. Willrich, 72 Minn. 165; Col- lier's Will, 40 Mo. 287; Linton v. Laycock, 33 O. S. 128; Foster v. W?ek, 17 Ohio, B50; Brasher V. Marsh, 15 0. S. 103; Jeremy' si Es- tate, 178 Pa. St. 477; Snyder's Es- tate, ISO Pa. St. 70; Brabham V. Crosland, 25 S. C. 525; MeComb ~v. McComb, 96 Va. 779; Hall v. Hall, 98 Wis. 193, 21 Gingrich v. Gingrich, 146 Ind. 227; Hoover v. Hoover, 116 Ind. 498; Nelson v. Russell, 135 N. Y. 137 ; Hersee v. Simpson, 154 N. Y. 496. 22 Heinrichsen v. Heinrichsen, 172 111. 462: Toner v. Collins, 67 lo. 369 ; Lowe v. Barnett, 38 Miss. 329 ; Christofferson v. Pfennig, 16 Wash. 491. 23 Bolton V. Banks, 50 0. S. 290. 24 Poor's Lessee v. Considine, 6 Wall. 458; Cropley v. Cooper, 19 Wall. 167; Danforth v. Talbot, 7 B. Mon. 623: McArthur v. Scott, 113 U. S. 340; Watkins v. Quarles, 23 Ark. 179: Tayloe v. Mosher, 2^ Md. 443 ; Hancock v. Titus. 39 Miss. 224; Byrne v. France, 131 Mo. 639; Linton v. Laycock, 33 O. S. 128; Harris v. Alderson. 4 Sneed. 250. Contra, McClain v. Capper, 98 lo. 145; 67 N. W. 102 (where, how- ever, the gift was "when my young- est son arrives at full age. I desire- that the real estate be equally di- vided between my children, their heirs or the survivors of them"). 772 LAW OF WILLS. Where the devise to beneficiary creates no intermediate es- tate and postpones the enjoyment of the realty devised to some future time, testator's intention is so much the more doubtful. The test for determining testator's intention prima facie in case of such a gift is this. If the devise is given in terms absolute on its ;face and is followed by a provision that devisee is not to receive the devise until the future time or future event speci- fied, the devise is treated as a vested one, subject, of course, to be divested upon non-performance of the conditions speci- fied in the will.^^ But where the condition is so closely con- nected with the devise as to qualify its very existence, a de- vise to rest in the future where no intermediate estate is cre- ated and the condition refers to the capacity of the beneficiary, as his reaching a certain age and the like, is prima facie held to be a contingent devise.^^ Where the condition does not refer to the devisee but to testator's estate, a different result is generally reached by the courts. Since it is in every case a question of testator's inten- tion, and the presumption is always in favor of vested interests, it is held that postponement of possession for purposes con- nected with the settlement of testator's estate does not show an intention to postpone the vesting of the interest until that time.^'^ The context may qualify the general rule that a devise to one to begin in the future without any intervening estate is contingent if postponed on account of the devisee, by any form of expression showing that testator regarded the interest as in its nature vested. The commonest type of such modify- ing context is found wdiere testator, after devising property to A upon his reaching some given age, or upon some similar event, provides for a gift over to B in case A dies before 25 Andrew v. Andrew, 1 Ch. D. Colt v. Hubbard, 33 Conn. 281; 410; Shrimpton v. Shrimpton, 31 Phayer v. Kennedy, 169 111. 360; Beav. 425 ; Mont^omerie v. Woodley, McClain v. Capper, '98 lo. 145 ; Daw- 5 Ves. Jr. 522 ; Meyer v. Eisler. 29 son v. Schaefer, 52 N. J. Eq. 341 ; Md. 28; Packard v. Packard, 16 Whitesides v. Cooper, 115 N. Car. Pick. 191; Foster v. Wick, 17 Ohio, 570; Handy's Estate, 182 Pa. St. 250. 68. 26 Travis V. Morrison, 28 Ala. 494; 27 J^eeley v. Boyce, 128 Ind. 1. LAW OF WILLS. '*^ reacliing such age, or in case the contingency in general should fail. The provision for a gift over is held to show that tes- tator intended the gift to A to vest at once, subject to be divested upon his death before reaching the age specified, or other failure of the specified event.^^ §660. Effect of power of sale. Where the enjoyment of property devised is postponed till after the determination of the life estate, and testator further gives to executors a power to sell this land, if necessary to pay debts of testator or for other specified purposes, the re- maindermen take a vested interest upon the death of testator, subject to be divested by the exercise of the power to sell.-'^ So, where the life tenant is given power to sell the real prop- erty, if necessary for his support and maintenance, the re- mainders after such life estate are, nevertheless, vested re- mainders, subject to be defeated by the exercise of power of sale.^° And the fact that the amount which the remainder men will take is uncertain does not make the remainder con- tingent.^^ §661. Vested remainders opening to let in after-bom remainder- men. Where a devise in remainder is made to a class who may be increased after the death of testator by the birth of others answering the description before the estate takes effect in 28Boraston's Case, 3 Coke, 51 so Lehnard v. Specht, 180 111. (one of the oldest and most often 208; Woodman v. Woodman, 89 quoted cases on this subject) ; Col- Me. 128. lier's Will, 40 Mo. 287 ; Roome v. si Bancroft v. Fitch, 164 Mass. Phillips,, 24 N. Y. 463; Engle's Es- 401; Min Young v. Min Young, 47 tate, 167 Pa. St. 463. 0. S. 501. 29 Allen V. McFaiiand. 150 111. Apparently contra, Watson v. 455; Drake v. Paige, 127 N. Y, Conrad, 38 W. Va. 536, where it was 562; Bonnell v. Bonnell, 47 N. J. held that the interest of the re- Eq. 540; Todd v. Wortman, 45 N. maindorm'an in such case did not J. Eq. 723; Barkman v. Hain, 5 O. pass by a sale in bankruptcy pro- N. P. 508; Moores v. Moores, 12 ceedinga of his interest in such Vroom, 440; Romaine v. Hendrick- property, son, 9 C. E. Green, 231. 774 LAW OF WILLS. possession, the courts will, if possible, construe this as a vested remainder in those of the class answering the description at the death of testator. Such remainder, however, can not by the terms of the will vest absolutely in those beneficiaries to the exclusion of those born thereafter, and before the time of taking possession who answer to the description. The remain- der, therefore, while vesting on testator's death, will open to let in the after-born, and to that extent the original benfici- aries will be divested of a proportionate interest.^" Thus, a gift to be divided upon A's death among the children that he "may hereafter have" opens to let in the children of A born after testator's death. ^^ S662. Vested defeasible remainders. o Under the definition of vested remainder employed by the courts in many jurisdictions, a vested remainder does not always take effect even if the remainderman is in existence at the time of the determination of the particular estate. Like all other es- tates classified upon the basis of duration or time of enjojTiient, a vested remainder may be conditional. We have already seen that any condition precedent other than that of remainder- man's surviving the duration of the particular estate, makes the remainder a contingent one ; but a remainder once vested may be divested upon a condition subseqiient.^^ Thus where land is devised to one for life, remainder to tes- tator's son upon coming of age, or if he should come of age, 32 Johnson v. Webber, 65 Conn. ss Cherbonnier v. Goodwin, 79 Md. 501: Field v. Peoples, 180 111. 376; 55. Green v. Hewitt, 97 111. 113; Allen 3* Richardson v. Penicks, 1 App. V. Mayfield, 20 Ind. 293 ; Middle- D. C. 261 ; Gingrich v. Gingrich, 146 ton V. Middleton, — Ky. — ; 43 S. Ind. 227; Mullreed v. Clark, 110 W. 677 ; Hovey v. Nellis, 98 Mich. Mich. 229 ; Patterson v. Madden, 54 374; Budd v. Haines, 52 N. J. Eq. N. .T. Eq. 714; Brasher v. Marsh, 488 ; Haggerty V. Hockenberry, 52 N. 15 O. S. 103; Jeffers v. Lampson, J. Eq. 354; Tn re Seaman's, 147 N. 10 O. S. 101; Baker v. McLeod. Y. 69; Losey v. Stanley, 147 N. Y. 79 Wis. 534; Marshall v. Marshall, 560; Gourley v. Woodberry, 42 Vt. 42 S. C. 436. 395 ; Leeming v. Sherratt, 2 Hare, 14. LAW OF WILLS. 775 was construed as passing an estate vested in the son upon tes- tator's death, subject to be defeated bj the death of the son before arriving at the age named.^^ Remainders are often granted after a life estate with a pro- vision that if the remainderman shall die without issue the property shall pass to another. As is hereafter stated, the clause "dying without issue" is, wherever possible, construed to mean death in the lifetime of the testator.^** Where "dying without issue" is held to mean without issue at the death of the person named as ancestor, and an estate granted to one for life with a remainder to another named, but if the remainderman dies without issue, then to others, the remainder man takes a vested remainder defeasible upon the condition subsequent to his dying without issue surviv- ing him.^^ Vested defeasible remainders are often created by a gift to A but providing that if he should die before a cer- tain time leaving issue, his interest shall pass to such issue.^^ Such a devise is not defeated by the death of the devisee with- out issue.^^ Since estates are held to be vested rather than contingent, a devise to testator's ^vife for life, remainder to testator's son A, on condition that he should take care of his mother and pro- vide for her support as long as she lived, was held to give to S5 Richardson v. Penicks, 1 App. Brasher v. Marsh, 15 O. S. 103. D. C. 261 ; Dickison v. Ogden, — so Bonnell v. Bonnell, 47 N. J. Kv. — (1890) ; 12 S. W. 191. Eq. 540. 36 Hamilton v. Ritchie (H. L. As conditions are not favored in Scot), (1894), A. C. 310; Lee v. construction, and estates are held Mumford, — Ky. — ; 44 S. W. 91; to be absolute rather than condi- Small V. Marburg, 77 Md. 11; tional. (See Sec. 674), a devise Tienken v. Tienken, 131 N. Y. 391; to testator's "children then living," Tompkins's Estate, 154 N. Y. 634; i. e., at the death of the life ten- Reams V. Span, 26 S. C. 561. See ant "or their heirs," is held to be Sec. 676. vested and not defeasible upon the 37Mullreed v. Clark, 110 Mich. death of one of testator's children 229; Patterson v. Madden, 54 N. J. after testator, the phrase "or their Eq. 714; Powers v. Bullwinkle, 33 heirs" applying to the heirs of such S. C. 293; Marshall v. Marshall, 42 children of testator as had died be- S. C. 436. fore testator. Linton v. Laycock, 38 Shaw V. Eckley, 109 Mass. 119; 33 0. S. 128. Putnam v. Story, 132 Mass. 205; 776 LAW OF WILLS, A a vested remainder upon testator's death, and not a remain- der whose vesting was deferred to his mother's death and was contingent upon his support of her. In this case the mother died before the testator, and under the construction placed upon the will it was held that A took in fee upon testator's death.'*'^ A similar view was taken where the son did not re- main with the widow and support her during her lifetime, because he died before she did.^^ On the same principle it was held that, where a life es- tate is created for the benefit of the life tenant and the re- mainder over is given to remaindermen upon the death of the life tenant, the remainder is vested in the remaindermen ; and if the life tenant dies before the testator, the remainder takes effect in possession upon the testator's death.^^ §663. When contingent interests become vested. Since the law favors the early vesting of interests, a remain- der which is contingent at testator's death is to be so con- strued as to be converted into a vested remainder at the ear- liest moment possible consistent with testator's intention.'*^ Thus where there was a life estate to testator's wife, sub- ject to be determined by her remarriage, with remainder over to testator's son, upon the death or remarriage of the widow with a remainder to the daughter of testator, contingent upon the death of the son before the wife, it was held that upon the remarriage of the widow the estate vested in the son, and was not divested by his death before that of the widow."*^ So where there was a devise to A in case he survived the testa- trix and attained to the age of twenty-one, though modified by 40 Gingrich v. Gingrich, 146 Ind. ton v. Laycock, 33 O. S. 128 ; Scott 227. V. Best, — Ky. — (1894); 25 S. 4iMcCall V. McCall, 161 Pa. St. W. 745; Dorr v. Johnson, 170 Mass. 412. 540; Boyd v. Sachs. 78 Md. 491; isHoaly v. Healy, 70 Conn. 467. Herriot v. Prime, 155 N. Y. 5;' 43 Poor's Lessee v. Considine, 6 Moore's Estate, 152 N. Y. 602; Wall. 4.58; Cropley v. Cooper, 19 Hinkson v. Lees. 181 Pa. St. 225. Wall. 167; McArthur v. Scott, 113 44 Boyd v. Sachs, 78 Md. 491, U. S. 340; Gindrat v. Western Ry. citing Snider v. Nesbitt, 77 Md. 96 Ala. 162; 19 L. R. A. 8.39: Young 576. V. Harkleroad, 166 III. 318: Lin- 1,AW OF WILLS. 777 cod'cil, providinji' that if he died leaving no lawful issue at the time of his death to be entitled to the trust property, the property should pass to others, it Avas held that upon A's surviving the testatrix, and attaining the age of twenty-one he took a vested interest in the fund although he subsequently died Avithout lawful issue. '^^ Where a will provides for subsequent division of prop- erty in such a way as to prevent the vesting of the estate be- fore the division, it is held that the interests vested absolutely upon the division.'**^ So where a will provided that a house should be divided among testator's children at the death of testator's wife, but that since division was impossible, it should be appraised and taken by the devisee or devisees who should take the farm at- tached to it, securing the others for their shares in money by bond and mortgage, it is held that the remainder in this house vested absolutely in the person who took the farm, im- mediately upon his taking such farm.'*''' Where the terms of the will vesting is postponed until the beneficiary shall reach a certain age, it is held that, upon his reaching that age, the estate vests, though the enjoyment there- of may be postponed until the determination of the life es- tate."*^ So a devise to testator's two sons, to be equally divided between them when the younger son came of age, remainder to the widow for life, in case both of the sons died without heirs, and on her death over to others, was held to vest absolutely in one son upon the death of the other after majority leaving issue.^^ So where a contingent remainder is devised to named persons upon the death of the first taker, without issue, the es- tate vests at once upon such contingency.^*^ So in a devise to A, but if she die without issue to B for life, remainder to the 45 Bailey v. Hawkins, 18 R. I. 48 Keepers v. Fidelity, Title & 573 (1894), affirming on rehearing Deposit Co., 56 N. J. Law, 302: 18 R. I., 27 Atl. 512. Dimmick v. Patterson, 142 N. Y. 46 Wilson V. Bryan, 90 Ky. 482; 322. Welder v. McComb, 10 Tex. Cir. 49 Seott v. Best, Ky, (1894); 25 App. 85. S. W. 745. 47 Dean v. Winton, 150 Pa. St. so Dorr v. .Johnson, 170 Mass. 227. ■ 540; Moore's Estate, 152 N. Y. 602. 778 LAW OF WILLS. children of C, C's children take a vested interest on the death of A.^^ So where a will devised property to testator's widow for life, with remainder to his brothers and sisters, and, in a codicil, he provided that, in case of a birth of child to testator, the will should remain in force until the child should reach the age of twenty-one, when the wife and the child should di- vide the property between them ; and further providing that, if the wife should die or marry before the child should reach the age of twenty-one, and that, if both wife and child died before the child reached the age of twenty-one, the property should go to the brothers and sisters, it was held that, upon the death of the wife before the child reached the age of twenty- one, the remainder vested in such child, subject to be divested by the death of the child before reaching the age of twenty- one.^^ Where property was devised to one if he should "have an heir of his body," and if he died leaving no heir, to others, it is held that the estate vested absolutely and undefeasably, upon the birth of a child, to such person, although the child might die before such person.^^ A provision that, after the death of testator's wife, a planta- tion should be "equally divided among my children that may be. alive at that time", and further providing that, if the chil- dren could not stay on the place together, their guardians should "receive and pay out to them what may be coming to them of my estate", was held to give vested remainders to the children upon their removal from the plantation. At any event, upon the death of all the children except one, immarried and childless, a deed from the survivor and the widow will pass the absolute estate.^^ Where property is devised to one for life, remainder over to another, providing that other survives the life tenant, it is said in some jurisdictions that this interest of the remainder-man 51 Nathan v. Hendricks, 147 N. Y. 53 Moore v. Feig, 17 0. C. C. 27. 348. 54Xioholson v. Cousar, 50 S. C. 52 Herriot v. Prime, 155 N. Y. 206 ; 27 S. E. 628. 5. 779 LAW OF WILLS. • * " is a contingent remainder.^^ At any event, such interest is one that can not be fairly appraised and sold, and the courts are, accordingly, unwilling to allow it to be subject to attach- ment.^*' §664. Contingent remainders. A contingent remainder exists where, under the terms of the gift, there is either no definite or ascertained person in exist- ence who will take, if the particular estate were to determine at once, or where, although the person who is to take is defi- nite and ascertained, some contingency or event other than that of the determination of the particular estate must occur before such remainder-man can take.^'^ From this definition, it is evident that there are two kinds of contingencies: contingencies of the event and contingencies of the person. A third class might undoubtedly be suggested in cases where there is a contingency of both the event and per- son, thoudi this latter class has never been recognized by the courts as^distinct from the other two. A contingency of the event exists where the person who is to take upon the determi- nation of the life estate is in existence, and is sufficiently desig- nated; but some event other than the determination of the par- ticular estate must occur before the remainder-man can take at such detemiination.^^ Any lawful event which testator may select may be the sub- ject of the contingency. A common contingency is where the remainder is to pass to the remainder-man, provided he sur- vives some designated person. In such cnse, at least as long as the desi'gnated person is alive, the remainder-man has only a contingent remainder,^^ or the contingency may be the re- 55Watsonv. Adams, 103 Ga. 733; 80; Phayer v. Kennedy, 169 IH. Madison v. Larmon, 170 111. 65; 360; Lapps v. Lee, — J^^- Brooks V. Kipp, 54 N. J. Eq. 462; (1892) ; 17 S. W- 146 ; Hopper v. Rip.^an V. Lamkin, 120 N. C. 44. Harrod, - Ky. - (1894) ; 24 S. W. 56 Smith V. Gilbert, 71 Conn. 149; 870. xxT . Ai ifiQ no T^"? 59 Turner v. Balfovir, 62 Lonn. Watson V. Adams, 103 Ga. i ■'i.i. j.uiuci 5- SLaw V Ecklev, 169 Mass. 119 89; Phayer v. Kennedy, 169 (remainder to A if C died before 111. 360: ^epps v. Lee, -- Ky_-- life tenant B held contingent). See (1892), 17 S. W. 1^6; High ^ E- Sec. 656. tate, 136 Pa. St. 222, 236; Gorm- 58 Turner v. Balfour, 62 Conn. ley's Estate, 154 Pa. St. 378. 780 LAW OF WILLS. marriage of a specified person.^^ So where testator devised land to his wife, and provided that if a certain designated person married and had issue, and, if the wife thought it ad- visable, she might convey the land to such issue or children, and if she did not so convey, the land should go to a desig- nated township, the interest of the children of the desig- nated person was held to depend entirely upon the fact of the conveyance. So when the wife conveyed to one child only, the other children were held to acquire no interest whatever in such land.^^ A devise to A, but if he should die without issue to B, gives B a contingent remainder, dependent on the death of A without issue.^- So a devise to be divided by trustees among certain persons at their discretion does not, until such division, give any interest to such beneficiary that f'an be bound by a lien.'^^ Since testator does not usually understand the difference between vested and contingent interests, especial care m-ust be taken in determining the nature of the interest given when it is expressly made to dependent upon the happening of speci- fied events. These interests are, under the definition, ordi- narily contingent; but analysis of the will may disclose that the contingencies, when put together, merely amount to a de- scription of the particular estate. A vested remainder is necessarily dependent upon the determination of the par- ticular estate. It therefore follows that no extension or repe- tition of the description of the particular estate will make the remainder dependent thereon contingent instead of vested.^^ §665. Contingencies of the person. A remainder may also be contingent because of the contin- gency of the person. This estate exists where, by the terms of eoCarr v. Bredenberg, 50 S. C. 128: Nelson v. Faissell, 135 N. Y. 471. '^ 137; Sellers v. Reed, 88 Va. 377. 61 Crist V. Schank, 146 Ind. 277 ; But a line of eases consider that 45 N. E. 190. a contingent remainder is created 62 St. John V. Dann, 66 Conn. where it is expressly provided by 401 _ will that the remainder man must f'SHandy's Estate, 182 Pa. St. survive the life-tenant. See Sees. 68. 656 and 663. 64 Woodman v. Woodman, 89 Me. LAW OF WILLS. 781 the gift, the beneficiary can not be ascertained until the hap- pening of some future event. ' Thus, where a devise is made to a class in such terms that the class can not be ascertained at the death of the testator, but must be ascertained at some fu- ture time, it is held in many states that, until such class is definitely ascertained, the interest of the members of such class corresponding to such description is a mere contingency;^"'^ hence the bankruptcy of one, who may take a contingent inter- est at the time for fixing the class of beneficiaries, passes no title to assigiiee or trustee in bankruptcy.*'^ And on the death of such person no interest passes to his issue unless specific- ally so provided by the terms of the will, and, in this case, tlie issue take, not by descent, but by purchase f nor has the surviving wife or husband of such person any interest in the property in which decedent had such contingent remainder. ^^ §666. Contingent legacies. As in devises, contingent legacies may be of two kinds : legacies contingent on account of some event and legacies con- tingent because of the uncertainty of the beneficiaries. A legacy contingent on account of the event is created by will which provides that the legatee shall take at a future time' only in case some other and further event happens.^^ And a beneficiary who has no vested interest is still entitled to pro- tection against the acts of the widow or executor in so dealing with the estate, as to make it impossible to pay his legacy should the contingency happen.'^'^ 65 Buchanan v. Denig, 84 Fed. se Buchanan v. Denig, 84 Fed. Rep. 863; Gindrat v. Western Ry. 864. 96 Ala. 162; 19 L. R. A. 839; Bates 67 Fitzhugh v. Townsend, 59 Mich. V. Gillett, 132 111. 287; Madison v. 427; Whitesides v. Cooper, 115 N. Larmon, 170 111. 6.5; Loeb v. C. 570. Struck (Ky.), 42 S. W. 401; Ried es-Wilson v. Denig, 166 Pa. St. V. Walbach, 75 Md. 205; Fitzhugh 29. V. Townsend, 59 Mich. 427 ; White- 69 Duggan v. Duggan, 17 Can. S. sides V. Cooper, 115 N. C. 570; Wil- C. 343; Lapham v. Martin, 33 O. son V. Denig, 166 Pa. St. 29; Nich- S. 99; Rebman v. Dierdorf, 186 Pa. Olson V. Cousar, 50 S. C. 206; 27 St. 401. S. W. 628; Forest v. Porch, 100 to Duggan v. Duggan, 17 Can. S. Tenn. 391. C. 343; see Sec. 598. 782 LAW OF WILLS. A legacy may also be contingent on account of the uncer- tainty of the beneficiar}'. This usually occurs when the bene- ficiaries are not named but are described, as for example, by reference to the class to which they belong in such terms that they can not be ascertained accurately until the happening of some future event. Such a legacy is contingent until the hap- pening of the event by which the legatees can be definitely as- certained.'^^ Thus, a legacy to such of x\'s children as shall be alive at the death of A, is contingent until A's death.'^^ §667. Vested and contingent legacies. — General rule of con- struction. The law in the case of legacies, as in the case of devises, pre- fers, wherever testator's language is ambiguous, or obscure, or doubtful, a construction which will make a legacy vested rather than contingent, or, if contingent, will make it vested as soon as possible ;'^'^ nor will the fact that the legatee may die before the time of the pa\Tnent of the legacy conclusively show that it is a contingent and not a vested interest.'^^ So a legacy payable "within one year after the death of my wife, if she survive me " is held to be vested, and not contingent, the condition referring solely to the time of payment. '^^ Within the limits of the rule against perpetuities, however, testator has absolute right to dispose of his property as he pleases, as far as the time of the vesting is concerned ; and he may, therefore, create either vested or contingent legacies at his pleasure; and, when he specifically provides in his will 71 Zn re Marvin (1891), 3 Ch. Hopkins v. Keazer, 89 Me. 347; 197; McCartney v. Osburn, 118 Jones v. Jones, 46 N. J. Eq. 554; 111. 403; Wilhelm v. Calder, 102 Rhode Island Hospital Trust Co. lo. 342; Hopkins v. Keazer, 89 Me. v. Harris, 20 R. I. 408. 347; Hale v. Hobson, 167 Mass. 73 Bethea v. Bethea, 116 Ala. 265 ; 397; Hall v. Wiggin, 67 N. H. 89 Hills v. Barnard, 152 Mass. 67, (1894) : 29 Atl. 671 : Jones v. .Jones, 9 L. R. A. 211. 46 N. J. Eq. 554, affirming Button "* Spencer v. Greene. 17 R. I. V. Pugh, 45 N. J. 426; Rhode Island 727: Lovass v. Olson, 92 Wis. 616; Trust Company v. Harris, 20 R. 67 X. W. 605. I. 408. 7-, Lovass v. Olson, 92 Wis. 616; 72 Wilhelm v. Calder 102 lo. 342: G7 N. W. 605. LAW OF WILLS. '^ at what moment the legacies shall vest, the courts will give full effect and force to his wishes. Cases of this kind are, how- ever, rarely presented to the courts for construction. The wills in which testator did not provide specifically as to the time of the vesting of the legacies are the ones commonly pre- sented for judicial decision. The rules most frequently in- voked are those for determining testator's probable intention. In such cases, while, as usual, each will is to be construed by itself, and depends for its meaning largely upon its own con- text and subject matter, some prima facie rules have become well settled. Where the legacy is to be paid as soon as testa- tor's estate is settled, such legacy is vested at once upon testa- tor's death. This proposition is so well settled that but few cases arise involving it. §668. Effect of postponing time of payment to create intermedi- ate interest. ^Yhere testator postpones the papnent of the legacy simply for the purpose of creating an intermediate interest in some other person, upon the determination of which interest the legacy is to be paid, such legacies are prima facie treated as vested upon testator's death, and not contingent.^^ And 76D^^Ter v. Mapother, 2G N. S. 248 ; Collier v. Grinisey, 36 O. S. 22; 294; Walker v.Atmore, 50 Fed. 644; Bartholomew's Estate, 155 Pa. St. Bethea v. Bethea, 116 Ala. 265; .314 ; Thomman's Estate, 161 Pa. St. Scofield V. Clcott, 120 111. 362; 444; Eckert's Estate, 157 Pa. St. Everett v. Mount, 22 Ga. 323: Owen 585; Wengerd's App. 143 Pa. bt. V. Eaton, 56 Mo. App. 563; Cook v. 615; 13 L. K. A. 360; Bitters Es- Hayward, 172 Mass. 195; Marsh v. tate, 190 Pa. St. 102; Rowlands HoTt, 161 Mass. 459; Hall v. Wig- Estate, 141 Pa. St. 553; Mull v. mn 67 N H 89 • 29 Atl. 671: Ben- Mull, 81 Pa. St. 393; Littles Ap- ton V.Benton, 66 N.H. 169 (1891); peal, 117 Pa. St. 14; MeClure's 20 Atl 365; Budd v. Haines, 52 N. Appeal, 72 Pa. St. 414; Patterson v. J Eq 489: Conant v. Bassett, 52 Hawthorne, 12 S. & R. 112; Shej- N .T Eq I''- Cook v. McDowell, 52 man v. Baker, 20 R. I. 446; 40 L. N J Eq 351; Adams v. Woolman, R. A. 717; Newport Bank v. Hayes_. 50 N J F.q. 516; Kimble v. White, 18 R. I. 464; Spencer v. Greene, 1/ 50 N J Eq 28: Crane v. Bolles, R. L 727: .Tones v. Knappen, 63 49 N J Eq. 373: Booraem's Es- Vt. 391; 14 L. R. A. 292: Chapman tate '5=^ N J Eq. 759; Bowditch v. Chapman. 90 Va. 409: Stanley v. V Avrault; 138 N. Y. 222; Wey- Stanley, 92 Va 534, 1896; 24 S. E. mouth V. Irwin, 7 0. D. 91 ; 5 O. N. P. 229 : Baker v. McLeod, > 9 Wis. 534 , 784 LAW OF WILLS. where such legacy is given absolutely, the payment being post- poned to let in a life estate, the interest of the legatee, if he dies before the period of payment, passes to his legatees or next of kin. Such a legacy may be, however, granted upon a condition subsequent to be divested if the legatee dies without issue. Although a vested legacy, it is, of course, divested by such a contingency.''^^ Such a legacy may be further so given that, although it vests in the legatees at testator's death, or as they afterwards come into being, it will open to let in after- born legatees. Thus, where a bequest is given to one for life, or until the youngest child of such person came of age, and then to sTieh children, it was held that the interest in this leg- acy vested in the children as they were born, subject to open and let in after-born children.'''^ §669. Effect of postponing' time of payment where no inter- mediate interest exists. Where a will bequeaths outright a certain sum of money to a legatee, and further provides that the i^ayment of this money shall be postponed until a future time, it is held that the legatee ^-ests at once upon the death of the testator, al- though the period of enjoyment is to he postponed until the time indicated, generally the arrival of the beneficiary at a certain age.'''^ "If testator gives a legacy to A. B., at the end TiHickling v. Fair (1807), A. C. 265; Nixon v. Robbins, 24 Ala. 663; 15; G8 L. J. P. C. X. S. 12: Web- Harrison v. Moore, 64 Conn. 344; ater v. Webster, 93 Ky. 632. Ingrahara v. Ingraham, 169 III. 7s Male V. Williams, 48 X. J. Eq. 432, 472 ; Eldridge v. Eldridge, 9 43; Campbell v. Stokes, 142 N. Y. Cush. 516; Wardwell v. Hale, 161 23; Bradley's Estate, 166 Pa. St. Mass. 396; Furness v. Fox, 1 Cush. 300. (Mass.), 134; 48 Am. Dec. 593 79 Bruce V. Charlton, 13 Sim. 68; Claflin v. Claflin, 149 Mass. 19 Marsh v. Wheeler, 2 Edw. Ch. 162; Smith v. Parsons, 164 N. Y. 116 Walkerly's Estate, 108 Cal. 627; Goebel v. Wolfe, 113 N. Y. 405 Hibler v. Hibler, 104 Mich. 274; Nelson v. Blue, 63 N. C. 659; Reed Srnith v. Jackson, 115 Mich. 192: v. Buckley, 5 Wats. & S. 517; McCarty v. Fish, 87 Mich. 48; Rood McReynolds v. Graham (Tenn. Ch. V. Hovey, 50 Mich. 395: Bishop v. App.), 43 S. W. 138; Lovass v. McClelland, 44 ¥. J. Eq. 4.50; 1 L. Olson, 92 Wis. 616; 67 N. W. 605. R. A. 551 : Atmore v. Walker, 46 So where one bequeathes to his Fed. 429; Bethea v. Bethea, 116 Ala. orrandchildren who were over twen- LAW OF WILLS. 785 of ten years after liis death the legacy is contingent ; but if he gives it .to A. B. to be paid to him at the end of ten years, it is vested."^^ Thus, Avhere a will gave a legacy to testator's son, payable when he was twenty-one, and provided: ''I also give him the sum of $:2 0,000 to be paid to him when he shall attain the age of twenty-five years, together with the further sum of $20,000 to be paid to him when he shall attain the age of thirty years," it Avas held that these legacies were vested.^' So, where a legatee is given, in absolute terms, a provision that the payment shall not be made until the legatee reforms, and if he shall not reform within five years of testator's death his share shall be held in trust for his children, shall not pre- vent the vesting of the legacy so that where he dies mthin five years it descends as intestate property to his widow and children ; ^^ nor is a legacy prevented from vesting by the fact that trustees were appointed to pay the income to legatee, and not pay him the principal until they think it proper.*^ Where a will gives a legacy in such terms as would other- wise pass a vested interest, the fact that a power of disposing of the property in some other manner, generally for the support of testator's widow, is given, does not render the legacy contin- gent, although, of course, it may be defeated by the exercise of the power.^'* A somewhat different case, however, was presented where the testator's son was emi^owered to "use the principal for his ty-one years, a certain sum out- quoted in Hibler v. Hibler, 104 Mich, right, and bequeaths a like sum to 274. those under twenty-one, payable si Wardwell v. Hale, 161 Mass. ■when they arrive at tlie age of twen- 396. ( So as the son died at the age ty-one, and appointed a trustee to of 26 his administrator could re- manage the sum in tlie meantime, it cover the legacy payable when he was held that the legacy vested in was [or would have been] 30. those under age at the death of tes- ^- Burnham v. Burnham, 79 Wis. tator. "The appointment of a trus- 557. tee in connection with the language §3 Lippincott v. Stottenburg, 47 of the defendant clearly shows that N. J. Eq. 21. the legatees are to be paid as other S4 ]Teilnian v. Heilman, 129 Ind. legatees upon the settlement of the 59 : INIcCarty v. Fish, 87 Mich. 48 ; estate." Nelson v. Pomeroy, 64 Conn. In re Brown, 154 K. Y. 313; Chafee 257. V. Maker, 17 R. I. 739. 80 Bruce v. Charlton, 13 Sim. 68, 786 LAW OF WILLS. children, or any of them, equally or unequally." By the exer- cise of the power of appointment, the parent could substantially defeat the interest of any of his children. The interests of his children were accordingly held to be contingent during the lifetime of their fnther.^^ It seems well settled that a legacy to the "heirs" of testator vests the interest in the legacy at the death of testator.^^ And a legacy given absolutely is vested, although not payabie till the death of the life tenant.^ ^ WTiere a legacy is not given in specific language, but is only to be implied from the direction to pay the legacy to the legatees at some time subsequent to the death of testator, it is a prima facie rule of construction that such a legacy does not vest at the death of testator, but is contingent until the time fixed for its pa\Tnent.®* Thus, a direction to pay a cer- tain sum to a named legatee at the end. of two years, if in the judgment of the executor he has then reformed, does not create a vested interest in such legatee at testator's death.^*^ This presumption may be, of course, strengthened by the con- text of the will showing that testator does not regard the leg- acy as vested until the time of payment.^^ This rule, however, while a prhna facie rule of construction, is subordinate t-o the primary rule that the intention of testator must be collected from the whole will, and any form of lan- 85 Lewis V. Citizens' National tate, 155 Pa. St. 314; Pleasanton's Bank, 95 Ky. 7^9. Appeal, 99 Pa. St. 3G3. 86 Muhlenburg's App. 103 Pa. St. 89 Markham v. Huflford (Mich.) 587. (1900), 82 N. W. 222. 87 Carper v. Crowd, 149 III. 465; so "it is, therefore, apparent that Kelly V. Gonce, 49 111. App. 82. the concluding clause of the will of 88 Walker V. Mower, 16 Beav. 365; the father providing that no de- Gardiner V. Slater, 25 Beav. 509 In re Soules, 30 Ont. Rep. 140 Scofield V. Oleott, 120 111. 363 Powers V. Egelhoflf, 56 111. App. 606 Owen V. Eaton, 56 Mo. App. 563 scendants of his survive his wife, the property shall belong and be delivered over by the executors to the persons named by him, of ne- cessitv shows that he did not in- Snow v. Snow, 49 Me. 159; Eager tend that his children should have V. Whitney, 163 Mass. 463; Garland a vested interest during the life- V. Smiley, 51 N. J. Eq. 198 ; Paget time of his wife so as to make it V. Mekher, 156 N. Y. 399; Green pass under their wills or go to their V. Green, 86 N. Car. 546 ; Union next of kin." Paget v. Melcher, 156 Savings and Trust Co. v. Darr, 10 N. Y. 399. Ohio C. D. 554; Bartholomew's Es- I-AW OF WILLS. 787 guage in the will which clearly shows that testator intends the legacies to vest before the time of pavnient must be given full effect by the courts.^ ^ "If there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution happens to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other in- terest, the vesting will not be deferred till the period in ques- tion." * §670. When contingent legacies become vested. Since the law favors the vesting of legacies as soon as pos- sible, a contingent legacy is held to vest in the beneficiary the instant that the contingency happens; even though the pay- ment of the legacy may be postponed until some future event occurring thereafter.^^ Thus, a provision that testator's daugh- ter, who had received a specified gift by the will, should re- ceive an additional gift if she became insane, was held to give her an interest which vested at tlie moment of her becoming insane, and, accordingly, descended to her legal representatives in event of her death before receiving it.''^ Where a legacy was given to one for life, and "from and after her death" to such of life tenant's children as were living at the period, not exceeding nine months after the death of the testator, it was held that at the expiration of such nine months the legacies vested and were not subject to be divested by the death of one of these children during the lifetime of the life tenant.^^ So, in a gift of the income of a fund, Avith a right to use the principal on demand, the right to the principal vests on demand.^^ Hence, where the legatee demands the principal before her death, but it is not paid to her, it should be paid to her estate.^® 91 In re Brown, 154 N. Y. 313. si Hudgins v. Leggett, 84 Tex. 207. * McClure's Appeal, 72 Pa. St. 9* Mann's Estate, IGO Pa. St. 009. 414, quoted in Little's Appeal, 117 ss Smith v. Jacknian, 115 Mich. Pa. St. 14. 192; Godshalk v. Akey, 109 Mich, 92Goldtree v. Thompson, 79 Cal. 350. 613; Stephen's Estate, 164 Pa. St. 96 Smith v. Jackman, 115 Mich, 209; Bailey v. Hawkins, 18 R. I. 192. 573; MoGill v. Gardner (Tenn. Gh. Ap.) (1898). 40 S. W. 707. 788 LAW OF WILLS. §671. Destruction of contingent legacy. Likewise, upon the occurrence of such contingencies as make it impossible for the contingency upon which the legacy is given ever to occur, the contingent interest is absolutely extinguished. Thus, where a legacy was given to testator's daughter, and it provided that if she should die before her husband, without children, the legacy should go to the children of a son of tes- tator immediately upon the death of the daughter, it was held that the contingent interest of these children of testator's son was destroyed by the death of the husband of the daughter before the daughter, although she was childless at the time.^' 9T Rebman v. Bierdoif, 186 Pa. St. 40i. LAW OF WILLS. . '°" CHAPTER XXX. CONDITIONS. §672. Classes of conditions. Estates may be devised either absolutely or upon condition. It is therefore, often of great practical importance to deter- mine whether a will devises an estate absolutely or upon con- dition ; and, if upon condition, to determine the exact nature and effect thereof. Conditions as to their effect upon the estate to which they are annexed are of two kinds, precedent and subsequent, and they are best defined separately instead of by a general defini- tion of a condition. A condition precedent is an event the happening or not hap- pening of which causes a conditional estate to vest or to be enlarged.^ A condition subsequent is an event the happening or not happening of which determines an estate already vested.^ §673. Condition distinguished from motive. It is often diflicult to determine whether a declaration that a certain devise was on account of something to be done by the de- 1 Moore v. Perry, 42 S. Car. 369. 412; Tilley v. King, 109 N. Car. 2 McKinnon v. Lundy. 21 Ont. 461. App. 560; Tappan's Appeal, .52 Conn. 790 LAW OF WJLLS. visee before the death of testator or before the time of the vest ing of the estate, is a condition, or merely a declaration of the motive which leads testator to bestow the gift. The question, how- ever, is purely one of construction of the whole will. Where it clearly appears that the gift was only upon condition pre- cedent that the devisee should perform some act, the devise will not take effect unless the condition is complied with ; and if It appears that the gift is to fail upon the happening or non- happening of the event, such event is a condition subsequent.^ Although there is some authority to the contrary, it seems not to be necessary that the devisee should be informed of the condition."* The devise may further refer to servuce as to be made, and yet not be conditioned upon the rendition of such service.^ A recital in a will that the legacy given is in consideration of the legatee's attention to testatrix and her husband,'^ or an expression of gratitude toward a legatee for his services to be rendered as executor,'^ was held to be an expression of motive of testator in making the gift, and not a condition upon which 3 Whiting's Appeal, 67 Conn. 379; Tilley v. King, 109 N. Car. 461 (a devise was on condition that de- visee "stays with us until after our deaths." Although there was no devise over, it was held that if he did not stay his devise was for- feited ) . 4 Whiting's Appeal, 67 Conn. 379 ; (In this case a deviss was made to one provided he should pay the tes- tatrix a certain sum equal in value to the property which he had re- ceived from her. Subsequently by agreement between the testatrix and the devisee, the interest only was to be paid during the life of the testa- trix, and it was agreed that in case of the death of testatrix before that of the devisee, the debts should be given to the devisee. Subsequently the testatrix executed a codicil re- affirming the will. It was held that the pajment of interest under the contract did not prevent the for- feiture of the devise unless the de- visee should pay the sums speci- field. ) Merrill v. Wisconsin Fe- male College, 74 Wis. 415. 5 Bigstaff V. Lumpkins (Ky.). 16 S. W. 449; 13 Ky. L. Rep. 448. (In this case testator devised the ser- vices of his slaves to his heirs, until his slaves reached the age of thirty years respectively, when they were to be freed and receive cer- tain liinds. The heirs freed the slaves at once. It was held that this did not destroy the devise, as it was not conditioned upon the rendition of the services.) 6 McCarty v. Fish. 87 Mich. 48. 7 Chassaing v. Durrand. 85 Md. 420. (After the srift was added "I thank him in advance for services in closing up my estate as testa- mentary executor.") LAW OF WILLS. 791 he made it. Accordiiiglv, the faihire of the beneficiary to act as expected by testator does not avoid a gift. So a gift of a homestead to testator's wife ''for a home for her and my chil dren" shows testator's motive in making the gift, and does not impose a condition that testator's wife shall continue to reside thereon.* A gift to one upon condition that after receiving the gift he pay certain sums of money to persons designated, is generally considered not strictly a condition, the breach of which may for- feit the estate, but rather as imposing a personal liability upon such devisee, or as creating a trust. '^ But where the payment to a class is especially made a condition precedent to the vest- ing of the devise, it is held to be a valid condition.^*' §674. Construction of conditions in general. As a general and broad proposition it may be said that the law favors such construction as will create an absolute rather than a conditional estate.^ ^ Thus, where testator devised cer- 8 Davis V. Hardin, 80 Ky. G72; Talbot V. Schneider, 151 Mo. 299. 9 Young V. Grove, 4 C. B. G(38 ; Woodward v. Walling, 31 la. 533; Cunningham v. Parker, 140 N. Y. 29. (This is recognized by the courts especially where there is no gift over. ) 10 Moore v. Perry, 42 S. C. 369. (A gift of a house and lot encum- bered by a mortgage" to be owned by all the children as soon as the mortgage is satisfied, provided," that they pay to one of the chil- dren what he has paid or may pay to ward satisfying the mortgage, is held to be a gift upmi condition precedent, not vesting until all the beneficiaries have repaid the amovmt advanced, and a delay of several years was held to be a re- nunciation of their right to ac- quire an interest in the property.) 11 Tarver v. Tarver, 9 Pet. (U, S.) 174; Ponner v. Young, 08 Ala. 35; Likefield v. Likefield, 82 Ky. 589; Bentz V. Maryland Bible Society, 86 Md. 102, 1897 ; 37 Atl. 708 ; Mc- Elwaine v. Holyoke First Congrega- tional Society, 153 Mass. 238; Van Giesen v. White, 53 N. J. Eq. 1; Acken v. Osborn, 18 Stew. Eq. 377 ; 1 Dick. Ch. 607; Crane v. Bolles, 4 Dick. 373; Newell v. Nichols, 75 N. Y. 78 ; Smith's Appeal, 23 Pa. St. 9; Casey v. Casey, 55 Vt. 518; Lovass V. Olson, 92 Wis. 616 (a leg- acy to A to be paid within one year after the death of testator's wife "if she survive me," was held conditional as to the time of pay- ment only, not as to the existence of the legacy). A construction which creates a covenant upon the part of devisee to do certain acts is preferred to one which creates a condition divest- ing hio estate upon failure to do such acts. Worman v. Teagarden, 2 O. S. 380. 792 LAW OF WILLS. tain lands to his son on condition that testator gained a cer- tain law suit, and then inimediately after devised "also four sections of my Texas land," it was held that the devise of the Texas land was not contingent upon the result of the litiga- tion.^" Conditions as to the gift of the principal will not he extended by construction to apply to gifts of the income in preceding clauses,^ ^ nor will conditions as to residuum be extended to pre- vious gifts.-^^ Conditions attached to a legacy in a will, are, however, pre- sumed to attach to a substituted legacy given in a codicil,^ ^ and if the estate is clearly intended to be conditional, the law will construe it an as estate upon condition subsequent rather than upon condition precedent, since the law favors the early vesting of estates.^ ^ In actual practice, conditions which tend to defeat estates are quite strictly construed.^ ^ Thus, where land was devised to testator's widow for life or during widowhood, with re- mainder over upon her remarriage or death to testator's son, and, in the event of his dying before majority and her remarry- ing before his death, to testator's mother and brother equally, it was held that where the son died before coming of age, and before the remarriage of the widow, she took the land in fee as the heir of such son.^^ Where an estate is to cease upon the performance of two conditions, both must be performed in order to determine the estate.^ ^ Thus, \\»hcre a gift to two sons provided that if neither have issue the fund was to go to another, it is held 12 Yeatman v. Haney, 79 Tex. 67. i7 McFarland v. McFarland, 177 13 McElwain v. Holyoke First Con- 111. 208. gregational Society, 153 Mass. 238. is McGurry v. Wall, 122 Mo. 614; 14 Bedford v. Bedford, 99 Ky. 273. 614 ; Patterson v. Madden, 54 N. 15 DeLaveaga's Estate, 119 Cal. J. Eq. 714. 651. 19 Laurence v. McQuarrie, 26 N. leMcKinnon v. Lundy, 21 Ont. S. 164; Bedford v. Bedford, 99 Ky. App. 560; Gingrich v. Ginrich, 146 273; Forsyth v. Forsyth, 46 N. J. Ind. 227; Hoss v. Hoss, 140 Ind. Eq. 400; Kennedy's Estate, 190 Pa. 551 ; Marwick v. Andrews, 25 Me. St. 79. 525; Yeatman v. Haney, 79 Tex. 67. LAW OF WILLS. 793 that such other docs not take where either of the sons have issue.^*^ So a devise to A, with a reversion if she died ''be- fore her son shall have arrived at the age of maturity, and should her son die without issue," was held conditioned upon the double contingency of the death of A during her son's minority, and his death without issue.^^ A gift to testator' wife for life or during widowhood, with remainder over to A upon her remarriage, is held to give A a remainder taking effect upon the death of the widow.^^ §675. Effect of failure of condition. If a condition precedent becomes impossible, the estate which depended upon it can never take effect.^^ If a condi- tion is clearly created, breach of such condition defeats the estate, even where the condition was beyond the control of the beneficiary, and he Avas entirely free from blame.^^ Thus a direction to executor to pay a legacy to A when he attains the age of thirty, if the executor thinks that he will make a prudent use of it, fails where A dies before the testator."^ Where a condition subsequent becomes impossible, the gen- eral rule is that an estate granted upon it can never be di- vested.^*' Thus a devise of realty on condition that devisee pay oif a mortgage was held to be on condition subsequent and not defeated by pajTuent of the mortgage by testator,^'^ So 20 Collins V. Collins, 40 0. S. Boston, 172 111. 439; Johnson v. 353; Kennedy's Estate, 190 Pa. St. Warren, 74 Mich. 491; West v. 79. Moore, 37 Miss. 114; Wilson v. Hall, 21 Bedford v. Bedford. t)9 Ky. 273. 6 Ohio C. C. 570; Stark v. Conde, 22 Smith V Chadwick, 111 Ala. 100 Wis. 633. 542, 1896; 20 So. 43G ; Terry v. 24 Stark v. Conde, 100 Wis. 633. Bourne, — Ky. — 1896 ; 33 S.- W. 25 Starke v. Conde, 100 Wis. 633. 403. (The whole will showed testa- 26 McKinnon v. Lundy, 21 Ont. tor's intention to create a remain- App. 560 ; Derickson v. Garden, der in A upon the termination of 5 Del. Ch. 323; Morse v. Hayden, the widow's estate, which intention 82 Me. 227 ; Parker v. Parker, 123 the courts would not defeat be- ]\Iass. 584 ; Conrad v. Long, 33 Mich, cause re-marriage only was express- 78 ; Dukes v. Faulk, 37 S. C. 2'iu ; ly mentioned.) Burnhani v. Burnham, 79 Wis. 557. 23 Boyce v. Boyce, 16 Sim. 476: 27 MeKinnon v. Lundy, 21 Ont. Davis V. Angel, 4 De G. F. & J. App. 560. 524; 31 Beav. 223; Ransdell v. 794 LAW OF WILLS. a gift to A on condition that he support B was held to be on condition subsequent, and was not defeated by B's death before testator.^* A gift to A of certain property, for the purpose of giving him a collegiate education, with a gift over if he did not make such use of it by reason of his indifference is not defeated by A's death while j)ursuing his studies.^^ Where, however, a condition subsequent is made to a legatee which, as in case of corporation, has no legal powers to per- form the condition, it has been held that the gift can never take effect.^*' But if the nominal condition is in reality a gift of a life estate to A, with remainder over to the corpora- tion, it is, of course, valid.^^ §676. Conditions concerning- death of devisee. Where the testator devises property to a named beneficiary with the condition that if this beneficiary shall die ''without issue" or "without heirs" the property devised shall go to some other designated person, several interesting questions are presented. The first question to consider is whether this is a devise upon condition or not. The termination of this question turns on the construction of the phrase "dying with- out issue." The weight of modern authority is that such a phrase, without anything further in the will to indicate the intention of testator, and when inserted in order to provide for 28 Morse v. Hayden, 82 Me. 227. 3i A gift to a corporation upon 29 Ellicott y. Ellicott (Md. ), condition that the corporation pay 1900; 45 Atl. 183; 48 L. R. A. 58. an annual sum equal to the interest 30 Bullard v. Shirley, 153 Mass. on such gift to certain named per- 559; 12 L. R. A. 110. sons for life has been held to be Contra, Carder v. Fayette County, valid, although the corporation had 16 O. S. 353. In this case a devise no legal power to make such per- was made to a county upon con- sons its beneficiaries, since the con- dition that it paid an annuity to dition is in effect only to hoUl testator's widow. In a suit i^i- the principle as trustee for the life volving the validity of this annuity of the beneficiaries, and upon their it was held that the question of the death to trustee's own use. Booth power of the county to pay such an- v. Baptist Church, 12C X. Y. 215. nuity or to impose a tax for such purpose was immaterial. LAW OF WILLS. 795 a gift to another in the event of dying without issue, means death in the lifetime of testator. Accordingly, if the bene- ficiary named in the will dies before the testator, neither his estate nor his heirs can claim any interest in the devise, while, if he survives testator, he takes an absolute fee simple free from any conditions.^" This construction treats these words as not strictly condi- tions, but as directions for substitution in order to prevent lapse ; and, if at the death of testator, the designated beneficiary sur- vives him, he takes the estate given absolutely, and is not divested thereof by his subsequent death without issue, but it passes by his will, or descends as his property in case of in- testacy.^^ 32 Burdge v. Walling, 45 N. J. Eq. 10; Pennington v. Van Houten, 4 Hal. Ch. 272 ; 4 Hal. Ch. 745 ; Wil- liamson V. Chamberlain, 2 Stock. 373; Baldwin v. Taylor, 37 N. J. Eq. 78; 38 N. J. Eq. 637; Barreil V. Bariell, 38 N. J. Eq. 60; Lafoy V. Campbell, 42 N. J. Eq. 34 ; Walsh V. McCutcheon, 71 Conn. 283; Law- lor V. Holohan, 70 Conn, page 87 ; Morgan v. Robbins, 152 Ind. 362; Moore v. Schindehette, 102 Mich. 612; In re N. Y. L. & W. R. Co., 105 N. Y. 89; Stokes v. Weston, 142 N. Y. 433; Benson v. Cor- bin, 145 N. Y. 351 : Wash- bon V. Cope, 144 N. Y. 287; Baker v. McGrew, 41 0. S. 113; Smith v. Hankins, 27 O. S. 371; Patterson v. Earhart, 29 W. L. B. 313; Sugden v. McKenna, 147 Pa. St. 55; Mitchell v. Pittsburg, etc., Ry., 165 Pa. St. 645; Morrison V. Truby, 145 Pa. St. 540: Keating V. McAdoo, 180 Pa. St. 5; Engel's Estate, 180 Pa. St. 215; Flick v. Forest Oil Co., 188 Pa.' St. 317; Bethea v. Bethea, 48 S. Car. 440; 20 S. E. 716; Lovass v. Olson, 92 Wis. 616. "It may be regarded as a settled rule of construction that where there is a devise to one person in fee and in case of his death to another, the contingency referred to is the death of the first named beneficiary dur- ing the lifetime of the testator, and that if such devisee survives the testator, he takes an absolute fee ; that the words of contingency do not create a remainder over, to take effect upon the death at any time of the first taker, nor an ex- ecutory devise, but are merely sub- stitutionary and used for the pur- pose of preventing a lapse in case the devise first named should not be living at the time of the death of the testator." In re N. Y. L. & W. R. Co., 105 N. Y. 89, quoted in Stokes v. Weston. 142 N. Y. 432. 33 Pendleton v. Bowler, 27 W. L. B. 313: Patterson v. Earhart, 6 Ohio Dec. 16: Engel's Estate, 180 Pa. St. 215: .Jackson's Estate, 17'9 Pa. St. 77 ; Meacham v. Graham, 98 Tenn. 190; 39 S. W. 12. 796 LAW OF WILLS. This rule, while occasionally open to criticism as in indi- vidual cases tending to defeat the will of testator, probably enforces the intention of testator in the average number of cases as well as any which could be suggested. The rule itself grows out of the principle that the law favors absolute rather than conditional estates.'^^ Testator's intention is, at best, doubt- ful in such oases ; and the law accordingly settles such doubt by construing the will as creating an absolute estate, with a sub- stitution of the beneficiary in case the first named beneficiary dies before testator."^^ Such presumption is strengthened where it appears from the will that testator meant to give to the ben- eficiary such estate as he could sell and dispose of absolutely ; ^^ and such presumption is not overcome by a provision that if any rents and profits accumulate before the death of the first devisee they shall pass to a second.^ ^ The presumption that "dying without issue" in such case means death during the life- time of testator may be overcome by an express provision in the will. The rule that "death" means death during the life- time of testator is only a prima facie rule of construction. Thq context of the will may show that testator had fixed some other point of time as that upon which such death, or death without 34 See Sec. 674. 1 Am. Rep. 30 ; Embury v. Sheldon, ssLifford v. Sparrow, 13 East. 68 N. Y. 227 ; Stokes v. Weston, 142 359; Gee v. Manchester, 17 Ad. & K Y. 433; rev. 69 Hun, 608; Black Ell. 737; Woodburne v. Woodburne, v. Williams, 51 Hun, (N. Y.), 280; 23 L. J. Ch. 336; First National Moore v. Lyons, 25 Wend. N. Y. Bank v. DePauw, 86 Fed. 722; 30 119; Nelson v. Russell, 135 N. Y^ C. C. App. 360; Austin v. Bristol, 137; Vanderzee v. Slingerland, 103 40 Conn. 120; 16 Am. Rep. 23; Gay N. Y". 47; Brown v. Lippincott, 49 V. Dibble (Conn.), (1900), 45 Atl. N. J. Eq. 44; Cowley v. Knapp, 13 359; Rickards v. Gray, 6 Hous. Vr. 297; King v. Frick, 135 Pa. (Del.), 232; Jones v. Webb, 5 Del. St. 575; Morrison v. Truby, 145 Ch. 132; Arnold v. Alden, 173 111. Pa. St. 540; Coles v. Ayres, 156 229; Wright v. Charley, 129 Ind. Pa. St. 197; Harris v. Dyer, 18 R. 257; Borgner v. Brown, 133 Ind. I. 540; In re Durfee, 17 R. I. 639; 391; Fowler v. Duhme, 143 Ind. Lovass's Estate, 92 Wis. 616; see 248 ; Antioch College v. Branson, Sec. 582. 145 Ind. 312; Cornwall V. Falls City 36 Benson v. Corbin, 145 N. Y. Bank (Ky.), 18 S. W. 452; 13 Ky. 351. L. Rep. 606; Small v. Marburg, 37 Lawlor v. Holohan, 70 Conn. 77 Md. 11; Cox V. Handy, 78 Md. 87. 108: Branson v. Hill, 31 Md. 181; LAW OF WILLS. 797 issue, is to occur in order to divest the estate.^^ Thus the testator may fix the arrival of the legatee or devisee at a certain age as the time before which the death is to occur,^^ or he may fix the marriage of the legatee or devisee as such time."*^ Even where testator does not fix the time, before which the death is to occur in order to defeat the estate, as subsequent to his ovm death, the context of the will may show that such was his intention. One of the commonest forms wliich the context assumes in order to show such intention is where testator creates a life estate to one, and subsequent to that a remainder to another, provided that on the death of such other (generally "without issue") the estate shall go to a third beneficiary. Under such devise the testator contemplates death of the first remainderman subsequent to his o^^m.^^ This rule has especial application where the life tenant is also executrix, and provision is made by will for the appoint- ment of another person as executor upon the "death" of the wife.^2 Where the "death," or "death without issue," is to occur subsequent to the death of testator, a conditional estate is created defeasible upon a condition subsequent in the event of the occurrence of the death as specified in the will, provided the condition is one which the law will enforce in other respects.^^ Hence, a devise to one and his heirs provided that, ssHollister v. Butterworth, 71 St. 587; McMasters v. Negley, 152 Conn. 57; Kinney v. Keplinger, 172 Pa. St. 303. 111. 449; Jordan v. Hinkle, 82 N. W. ■io Forman v. Woods (Ky.) 426; Nayior v. Godman, 109 Mo. ( 1899) , ,50 S. W. Gl. 543; Kornegay v. Morris, 122 N. ti Hollister v. Butterworth, 71 C. 199, modified on rehearing 123 N. Conn. 57 ; Naylor v. Godman, 109 C. 128; 31 S. E. 375; Brown v. Lip- Mo. 543; Kornegay v. Morris, 122 N. pincott, 49 N. J. Eq. 444; Shim- C. 199, modified on rehearing 123 er V. Shinier. 50 N. J. Eq. 300; (N. C.) 128; 31 S. E. .375; In re In re Denton, 137 N. Y. 428; Mead Denton, 173 N. Y. 428. V. Maben, 60 Hun, 208; Pendleton 42 Kinney v. Keplinger, 172 111. V. Bowler (Cin. S. 0.), 27 W. L. 449, reversing 71 111. App. 334. J3 ^]^_ 43 Xewson v. Holesapple, 101 Ala. 39 Rogers' Estate, 94 Cal. 526; 682 : Bethea v. Bethea, 116 Ala. 265 limas V. Neidt, 101 la. 348, Me- Koeffler v. Koeffler, 185 111. 261 Daniel V. McDaniel (Ky.), 15 S. W. Smith V. Kimball, 153 111. .368 129; Shinier v. Shinier, 50 N. J. Pate v. French, 122 Ind. page 10 Eq. 300; Smith's Estate, 1S9 Pa. Jones v. Moore, 96 Kv. 273; Pruitt 798 LAW OF WILLS. if the first taker should die without lawful issue, the estate should go over to another, gives the first taker a fee defeasible upon his death without issue; and in case of his death with issue, such issue have no interest in the property devised as against grantees or devisees of the first taker.^^ The intention of testator that dying without issue may mean a death after the death of testator may also be inferred from other provisions in the will. Thus, a provision that, in case of the death of the beneficiary without issue, her share shall revert to the estate of testator shows that he contemplates her death without issue after his own.^^ So a provision that certain lands shall pass to testator's sons after the death of testator's widow, provided that if either dies without issue his estate shall pass to another, shows that the death without issue meant a death after that of testator.^^ Where a life estate is created and interests of the remainder- men are postponed simply in order to permit of the creation of the life estate for the benefit of the life tenant, the remainder vests immediately in possession upon testator's death if the life tenant has died before testator ; and the vesting of a life estate in the remainderman is not condition precedent to the vesting of the remainder.^''' Where the condition on which the estate is to pass over is the death of the one without "leaving" a child, it was held that the estate goes over where such named V. Holland (Ky.), 18 S. W. 852; dies without heirs of her ovv-n body," 13 K\. L. Rep. 867; Brooks v. then to B. Held a fee in A, de- Kip, 54 N. J. Eq. 462; Hinkson feasible on event of her death with- V. Lees, 181 Pa. St. 225; Thomson out issue surviving her.) Shaw v. V. Peake, 38 S. C. 450 (440) ; Shaw Erwin, 41 S. C. 209; Malona v. V. Erwin, 4 S. C. 209; Jennings v. Schwing, 101 Ky. 56. Parr, 51 S. C. 191 ; Waring v. War- 45 Hutchins v. Pearce, 80 Md. ing, 96 Va. 641. 434; Trexler v. Holler, 107 N. C. 44 Bethea v. Bethea, 116 Ala, 265; 617. Mitchell v. Campbell, 94 Ky. 347. 46 Daniel v. Daniel, 102 Ga. 181; (A devise to A providing that A Lafoy v. Campbell, 42 X. J. Eq. 34. •'shall continue the ownership of 47 Healy v. Healy, 70 Conn. 467 ; the estate and do as she pleases Hollister v. Butterworth, 71 Conn, with it at her death, provided she 57; In re Burrows (1895), 2 Ch. leaves heirs of her own body, which 497. heirs are to take it. But if she LAW OF WILLS. 799 person had a child, but the child died before snch parent.^ "^ But where the devisee dies leaving a posthumous child, the condition is complied with.'*^ Where the evident intention of testator is to create an estate which will descend to the heirs of the first taker, the courts often allow considerable latitude in moulding the language of a condition to make it conform to such an intention. Thus it is not uncommon for testator to devise property to one and his heirs, and then provide that if such taker should die under a certaiH age the property given should pass to another. Unless the context clearly shows a contrary intention such a condition is construed to mean if the first taker shall die under age and without issue. ^^ This doctrine has been extended to a case where there was a gift to A without any reference in the will to his heirs, tlu? statute making such gift carry a fee simple unless a con- trary intention appears. In this case a devise was created in trust for the daughter of testator until she should become twenty-one, when the principal should be paid over to her ab- solutely. The will provided further that if she should die before she became twenty-one years of age the estate should go over to another. The court construed this condition as mean- ing if she should die under twenty-one and without issue ; so, if she had married, had a child-, and died under the age of twenty -one, such child took by descent from her.^^ So, where testator left real pro]3erty to certain devisees with a gift over, if the devisees or "any of them" should die, it was held that this condition, though literally divesting all the devisees of their shares, applied only to the share of the one dying.^^ So, in a gift to a married woman for life, and 48 /n re Hemingway, L. R. 45 Sprig, 7 Gill. (M. D.), 197; 48 Am. Ch. D. 453. Dec. 557; Prosser v. Hardesty, 101 49 Smitli's Estate, 189 Pa. St. Mo. 593 ; Nelson v. Combs, 18 N. J. 587. L. 27; Liston v. Jenkins, 2 W. Va. 50 Spalding v. Spalding, Cio. Car. 62. 185; Strong v. Cummin, 2 Burr. si Baker v. McLeod, 79 Wis. 534: 767; Abbott v. Middleton, 21 Beav. so Prosser v. Hardesty, 101 Mo. 143; 7 H. L. Cas. 68; Phelps v. 593. Bates, 54 Conn. 11; Young v. Har- 52 Xichols v. Boswell, 103 Mo. kleroad, 166 111. 318; Janney v. 151. 800 LAW OF WILLS. at lier death to the heirs of her body, subject to her husband's life estate, with a gift over if she died without issue, it was held that the life estate of the husband was not affected by the condition. ^^ In a gift over if devisee died under age, or without issue and without having disposed of the property, it was held that the condition was complied with by a deed to the father of such beneficiary subject to a trust for beneficiary for life, and on his death for his wife and child ren.^^ Whether the ''death" referred to is death before or after testator's, the will provides for a substitution of the persons designated in the alternative for the first beneficiary named in the will.^^ §677. Conditions as to birth of issue. A condition dependent on the birth of issue is valid if not in violation of the rule against perpetuities, and is one of the commonest conditions imposed.^^ Where the birth of issue is so remote as to violate the rule against perpetuities, the condition is, of course, invalid.^' Such a condition is usually held not to be broken until the death of the person indicated by the condition as the parent of the prospective issue, or the lapse of the time within which, by the provisions of the will, the issue are to be born. The fact that it is extremely improba1)lc, or in fact imposible, as where the woman who is indicated as the mother of the issue is past the age of child-bearing, does not amount to a breach of the condition. ^^ In a recent English case, however, it was held where a fund was given to A unless B, a woman, should have a child, and B was childless and past the age of child-bearing, that the income might be paid to A.^^ 53 Hatchett v. Henderson Trust elusive; see Sec. 676 for "dying Co. — (Ky.), 1897; 39 S. W. 23.5. without issue." 5t Miles V. Strong:, 68 Conn. 273. ^i Jn re Benee (C. A.), 1891, 3 55 Exton V. Hutchinson, .53 N. J. Ch. 242. Eq. 688; Fahnestock's Estate, 147 ss Carney v. Kain, 40 W. Va. 7.58. Pa. St. 327 : Minis V. Macklin, 53 S. 597^,1 re Lowman (C. A.) 1895, Car. 6. 2 Ch. 348. 5G See Sec. 591 to Sec. 594 in- LAW OF WILLS. 801 §678. Conditions as to support or services. A condition that a devisee shall support a person named, or work for such person, is perfectly reasonable and consis- tent with the policy of the law, and is constantly upheld.^*^ In most states such conditions are, wherever possible, held to be conditions subsequent.*^ ^ And hence the gift is not avoided because the support is not given by reason of the fact that the person to be supported dies before testator ;^2 ^y^ by the death of the person who is bound to furnish support and attention before that of the person who is to be supported.*^^ Where a part of a farm is devised to a son upon the condi- tion that he should work the whole farm, taking two-thirds of the crops, and giving one-third to the wife of testator, and sub- sequently all the farm, except that devised to the son, was sold in a partition suit brought by the widow, it was held that the son was bound to pay to the widow one-third of the crops raised on the part devised to him, but nothing further.^^ Where testator provides that certain devisees shall receive specified devises on condition of performing certain services for persons named, or for the estate of testator, it is held that the persons for whom the services are to be rendered can not avoid the devise by making the rendition of the services impossible.^^ Thus testator provided that if two former slaves 00 Gingrich v. Gingrich, 146 Ind. the payment is made. Barfield v. 227; Irvine v. Irvine (Ky.), 15 S. Barlleld, 113 N. Car. 230; Thomp- W. 511; 12 Ky. L. Rep. 827; Pearl son v. Hoop, 6 O. S. 480; Case v. V. Lockwood (Mich.) (1900), 81 N. Hall, 52 O. S. 24. VV. 1087; Harris v. Wright, 118 N. 62 Hoss v. Hoss, 140 Ind. 551; C. 422; McCall v. McCall, 161 Pa. Burdid v. Biirdis, 96 Va. 81. St. 412; McFadden v. Hefley, 28 S. 63 McCall v. McCall, 161 Pa. St. C. 317; 13 Am. St. Rep. 675. 412. 61 Gingrich v. Gingrich, 146 Ind. In Kentucky such conditions ara 227 ; Allen V. Allen, 121 N. Car. 328, treated as conditions precedent; Ir- criticising Erwin v. Erwin, 115 N. vine v. Irvine (Ky.), 15 S. W. 511; Car. 366. So a condition that be- 12 Ky. Law Rep. 827; Hopper v. fore devisee takes possession of the Harrod, Ky. (1894), 24 S. W. 870. realty devised to him, he shall pay 64 Richards v. Richards, 90 lo. a certain sum to his sisters, or 606. secure the payment of such sum, 65 Seeley v. Hincks, 65 Conn. 1 : does not entitle the sisters to re- Harris v. Wright, 118 N. C. 422. tain possession of the realty until 802 LAW OF WILLS. should remain with his wife and nephew until the death of the wife, working for them, they should have each fifty acres of land. While this seems to have been treated as a condi- tion precedent, it was held that such a will gave the slaves the right to remain upon the plantation, to use the land de- vised to them without rent, and that their devise could not be defeated by ejecting them from the plantation for non-pay- ment of the rent, or by insisting that tliey leave the planta- tion, go to the city and there render the services indicated.*^*^ Like other devises, however, a devise of this sort may be void for uncertainty. Thus a devise to the one of A's sons who should live on the land devised, and support certain benefi- ciaries, was held to be void for uncertainty where the evidence disclosed that A had several sons, and did not disclose which, if any of them, had complied with the conditions of the de- vise.^^ These conditions, while valid as far as the necessity for pay- ment is concerned, may be otherwise unenforceable. Thus a devise to A was upon condition that he paid $80 per acre for the land devised and gave a mortgage securing payment. A en- tered into possession of the land but did not give the mortgage. It was held that his interest was not thereby defeated, since tlie unpaid purchase money was a lien upon the realty by the provisions of the will itself.^^ §679. Conditions as to reformation and conduct of beneficiary. A condition that the estate given shall not pass to the devi- see until he settles down and marries, or reforms from in- temperate habits, and the like, is held to be valid.*^^ Such con- ditions are as strictly construed as others, however. Thus where there was a gift over, if the first devisee became a vagabond and drunkard, it was held not to pass where he became a drunkard and not a vagabond.^*^ 66 Harris v. Wright, 118 N. C. 660; Markham v. Hufford (Mich.), 422. 82 N. W. 222 ; Hawke v. Euyart, 30 67 McFadden v. Hefley, 28 S. C. Neb. 149 ; 27 Am. St. Rep. 149. 317, 13 Am. St. Rep. 675. '"^ Forsyth v. Forsyth, 46 N. J. Eq. 68 Hanes v. Hunger, 40 O. S. 493. 400. 69 Cassem v. Kennedy, 147 111. LAW OF WILLS. 803 §680. Conditions as to presenting claims against testator's estate. A condition that a devise shall be void if devisee presents a bill against the testator's estate, has been upheld as valid.'^^ Where a condition provided that a legacy given should be forfeited in case legatee presented a claim against testator's estate and there was no gift over, it was held to be a condition in terrorem only, and the representation of a valid claim is held not to work a forfeiture.'^^ Where a condition was imposed upon a life estate that the interest therein should cease if a claim held by some one other than devisee should be enforced, it was held that the in- terest of the life tenant was not ended but merely suspended until the claim was satisfied out of the rents and profits of the life estate.^^ A will provided that the value of the services of a devisee should be added to the property given him by the will, if such claim should be recovered against testator's estate by ''due course of law," it was held that a presentation of the claim to an estate and the allowance by the court was "due course of law" and was a sufficient compliance with the conditions of the will.'^^ §681. Conditions in restraint of marriage. The validity of conditions in restraint of marriage involves a number of distinctions upon which the courts are not en- tirely harmonious. It seems well established that a condition in restraint of a second marriage of testator's widow is valid, and upheld by the courts."^^ So a condition in a will of tes- Ti Rockwell V. Smft, 59 Conn. (P.O.) (1895), A. C. 264; 64 L. J. 289. p. C. N. S. 49; 11 Rep. 423; Giles 72Vandevort's Estate, 62 Hun (N. v. Little, 104 U. S. 291; Helm v. Y.), 612. Leggett, 66 Ark. 23; Bennett v. 73 Williams v. Jenkins (1893), 1 Packer, 70 Conn. 357; Collins v. Ch. 700. Burge (Ky.), 1899; 47 S. W. 444: 7* Knauss's Estate, 148 Pa. St. Opel v. Shoup, 100 la. 407 : Boyd 265. V. Sachs. 78' Md. 491 ; Clark v. 75 Trew V. Perpetual Trustee Co. Tennison. 33 Md. 85 ; Nash v. Simp- 804 LAW OF WILLS. tatrix that her husband shall not remarry is undoubtedly val- idJ« The doctrine that a condition in restraint of a second mar- riage is valid is not limited to conditions against the remar- riage of the surviving spouse of the testator. Thus a con- dition avoiding a devise if testator's widowed daughter should marry again, Avas held to be validJ''' Where a condition in restraint of a first marriage is sought to be imposed, there is no question that a condition in general restraint of marriage which is imposed in order to cause the beneficiary to live unmarried, is contrary to public policy and void.^^ Thus a condition that a legacy should cease if the leg- atee, testator's niece, should cease to be member of the So- ciety of Friends, was held void, there being no gift over, where the extrinsic evidence showed that there were only three un- married men of that denomination in that neighborhood, and that marriage outside of the church forfeited membership'^'* Eestraints against marrying persons belonging to specified classes have been upheld,^^ and so have restraints against mar- rying a specified individual.^^ Where the language of the Mdiole will shows that testator's intention was to provide for a designated beneficiary as long as she should remain single, but upon her marriage he expected her husband to support her, and for that reason alone limited son 78 Me. 142 ; Knight v. Mahoney, Beaumont, 3 Ves. Jr. 89 ; Mourning 152 Mass. 523; 9 L. R. A. 573; In re v. Missouri Coal Mining Co., 99 Mo. Allen, 151 N. Y. 243; Redding v. 320; In re Denfield, 156 Massi 265; Rice, 171 Pa. St. 301; Nash v. Hogan v. Curtin, 88 N. Y. 162; Simpson, 78 Me. 142; Boyer v. Al- Maddox v. Maddox, 11 Gratt. (Va.), len, 76 Mo. 498; Martin v. Seigler, 804. 32 S. C. 267; Wooten v. House 79 Maddox v. Maddox, 11 Gratt. (Tenn.), Ch. App. (1896); 36 S. (Va.), 804. W. 932; Duncan v. Philips, 3 Head. so Greene v. Kirkwood (1895), 1 (Tenn.), 415; Lane v. Crutchfield, Ir. 130; (a condition against de- 3 Head. 452. visees marrying a man "below her 76 Allen V. Jackson, 1 Ch. Div. social station"); Hodgson v. Hal- 399; Stivers v. Gardner, 88 lo. 307. ford, 11 Ch. Div. 959. 77 Herd v. Catron, 97 Tenn. 662. si Finlay v. King, 3 Pet. (U. S.), 7sMoreley v. Rennoldson (1895), 346; Gi;aydon v. Graydon, 23 N. J. 1 Ch. 449; 12 Rep. 158 ; Stackpole v. Eq. 229. LAW OF WILLS. 805 the gift over, such limitation is held not to be void.^^ .At one time the courts upon this point seemed disposed to make a dis- tinction between a condition subsequent and a conditional limi- tation, and to hold that if the devise were to the beneficiary until the event of her marrying and then over, it would be void, but that if it were to her as long as she remained unmarried, it would be valid.^^ This distinction seems by modern au- thority to be repudiated, and where the intention of the testator is clearly to support the beneficiary until marriage, such in- tention is upheld, whether it tends to a form of a condition subsequent or to a conditional limitation.*^ A condition precedent that upon marrying with consent of trustee an additional annuity shall be given to testator's son, is held to be valid.*^ Where condition in restraint of marriage is a condition precedent to the vesting of the estate, it is held by some author- ities to be valid.*® A condition in a will by which an inducement is offered to a married j^erson to obtain a divorce, or to live separate and apart from the other spouse, is contrary to public policy, and held to be invalid.*'^ However, where the husband and wife had lived apart and divorce proceedings were pending at the date of the will, a condition that certain property shall vest 82 Mann V. Jackson, 84 Me. 400 ; that conditions precedent in re- 16 L. R. A. 707 ; Graydon v. Gray- straint of marriage were always don, 23 N. J. Eq. 229 ; Courter v. valid in case of a devise no matter Stagg, 27 N. J. Eq. 305 ; Hotz's how restrictive, while in case of a Estate, 38 Pa. St. 422; Cornell v. bequest they were valid unless in Lovett, 35 Pa. St. 100; Bruch's general and unreasonable restraint Estate, 185 Pa. St. 194. of marriage. In this case a clause 83 Heath v. Lewis, 3 De. G. M. & revoking a prior gift to any of tes- G. 954. tator's children who should marry 84 Jones V. Jones, L. R. 1 Q. B. into the family of A was held valid, Div. 279 ; Mann v. Jackson, 84 Me. and where such marriage took place 400; 10 L. R. A. 707; Bodwell v. before the death of testator it was Nutter, 63 N. H. 446; Morgan v, treated as a condition precedent.) Morgan, 41 N. J. Eq. 235. 87 Brown v. Peck, 1 Eden, 140; 85 /n re Nourse (1899), 1 Ch. 63; Wrenn v. Bradley, 2 De Gex & S. 68 L. J. N. S. 15. 49; Conrad v. Long, 33 Mich. 78; 86Ransdell v. Boston, 172 111. 439. Ilawke v. Euyart, 30 Neb, 149; 27 Phillips v. Ferguson, 85 Va. 509. Am. St. Rep. 149. (In the case last cited it was said 806 LAW or WILLS. in the -husband at the termination of the life estate, if he should have obtained a divorce from his wife, has been upheld as valid.^^ And where there was a devise to a married woman, the income to be paid to her while she remains married, and the principal to be paid to her upon the death of her husband, or upon her separation from him, such a condition is not void where it appears from the whole will to be the purpose of the testator to provide an annual income for the wife as long as her husband is supporting her, and to pay the principal when bv reason of the cessation of such support, she may need the en- tire sum for her maintenance.^^ §682. Conditions as to religious belief. In some jurisdictions conditions avoiding a devise, if the devisee should not be a member of a certain church, or avoid- ing a devise if he should be a member of a certain church, have been held to be contrary to public policy as interfering with the liberty of conscience.^^ Thus where a devise to rel- atives of testator was to be avoided if they should cease to be members of the Quaker Church, it was held that such condi- tion was void.^^ In other jurisdictions these conditions seem to be treated as valid, though very strictly construed.^^ Thus a devise to be void if the devisee turns Catholic, and after his majority acknowledges himself a member of that Church, is not avoided by secret change of belief, where there was no acknowledge- ment of membership.^^ And where some of the devisees of 88 Ransdell v. Boston, 172 111. bequest requiring as a condition of 439, citing Cooper v. Remsen, 5 its enjoyment that the legatee Johns. Ch. 459. should be a member of any reli- 89 Born V. Horstman, 80 Cal. 452 ; gious sect or denomination as di- 5 L. R. A. 577 ; Thayer v. Spear, rectly violative of ... . policy and 58 Vt. 327. pregnant with evil consequences." 9oMaddox v. Maddox, 11 Gratt. 92 Laurence v. McQuarrie, 26 N. Va. 804. S. 164; McBride's Estate, 152 Pa. 91 Maddox v. Maddox, 11 Gratt. St. 192. Va. 804. 93 Laurence v, McQuarrie, 26 N. The court said: "I regard a re- S. 164. striction imposed by the terms of a 807 LAW OF WILLS. the cla^, in a devise to such children as were members of a given church, have complied with the conditions, the church can not object if some of the children were not members, since the church would not, under the will take the benefit of a failure of condition in such case, but it would^inure to those children who had complied with the conditions.^^ §683. Conditions against contesting will. The validitv of conditions imposed by a will against contest- in- the validitv of the will or interfering or trying to inter- fere with the administration of the estate or with the interests of the other beneficiaries, is a question, upon the details of which the courts are by no means unif oi-m. The weight of authority undoubtedly is that where there is a condition against disputing the. validity of a will, followed bv a gift over upon the performance of the condition, the con- dition must be given effect ancMhe beneficiary who contests loses his rights under the will.^^ _ Thus a condition attached to certain legacies that legatees "acquiesce" in the will is broken by attacking the devise of a specific tract of realty on the ground that it belonged to tes- tator's wife«« In such cases, however, if the contest is success- ful of course the conditions fall with the rest of the will. The policy of allowing such a condition, where there is prob- able cause for contesting the will, is unquestionably a bad one. In cases of fraud and undue influence, they offer a most effective means of terrorizing the heirs and next of kin who are given any substantial benefits under the will, and thus preventing them from contesting the will. Some cases have sharply challenged the wisdom of enforcing these conditions where there is any reason- able cause for contesting. Where there is no gift over upon a breach of condition, the authorities are not harmonious as ..McBride's Estate, 152 Pa. St. Schley, 2 Gill. 181; ^1 A,n De. 415- Bradford v. Bradford, 19 U. 192. 95 Smithsonian Institution v. S. 54fi. Tn«fUntion v Meech, 169 U. S. 398; Morrison v. - Smithsonian Institution v. Bowman, 29 Cal. 337; Beall v. Meech, 169 L. S. 398. 808 LAW OF WILLS. to the validity of the condition. In some jurisdictions it 13 held that the condition is valid in devises of land where there is no gift over;^'^ but that it is invalid in bequests of person- alty, the condition being, in such cases, held to be in terro- rem.^^ A residuary clause has been held not to be such a gift over where there was no especial provision that this bequest should, upon the happening of the condition, pass into the residuum.^^ In other jurisdictions the validity of these conditions has been assumed whether there is any gift over or not, and whether the property disposed of is realty or personalty.-^ ^'^ These conditions are strictly construed. Thus where the condi- tion is that a devise shall be forfeited if the devisee opposes the conditions of the will, such devise is not forfeited by his filing a bill to have the will construed,^ ^^ nor by his cross examining at probate, and filing objections, and suing executor to recover property which was disposed of by the will.^*^^ However, a beneficiary under such a conditon, who procures and obtains another heir to institute proceedings to contest a will, for- feits his interest thereon.^ ^^ §684. Conditions repugnant to the nature of the estate devised. The law recognizes a certain number of classes of estates ia real property, and will not allow the creation of new kinds of estates, nor will it allow a testator to take from existing classes of estates any necessary incident thereto; accordingly any attempt by will to create a new class of estate, or to pass a recognized estate without certain necessary incidents, is a nul- lity.^ '^'^ Thus a gift of land in fee, followed by a provision that devisee shall not sell this property during his life, can not 97 Adams v. Adams (C. A.) loo Bradford v. Bradford, 19 0. C1892), 1 Ch. 3G9, affirming 45 Ch. S. 546. Div. 426. (In this case the eon- loi Black v. Herring, 79 Md. 146. test was groundless and malicious, 102 in re Bratt, 32 N. Y. Supp. and the forfeiture was enforced.) 168. 98 Donegan v. Wade, 70 Ala. 501 ; 103 Donegan v. Wade, 70 Ala. 501. Fifleld V. Van Wyck, 94 Va. 557. io4 Law v. Douglas, 107 la. 606. 99Fifield V. Van Wyck, 94 Va. 557. LAW OF WILLS. 809 be entirely enforced, since the restraint upon alienation is re- pugnant to the nature of the estate conveyed. In such cases the intention to pass the property, being the paramount in- tention of testator, is enforced, and the restraint upon alien- ation is ignored, and held void.^«" Thus a condition that cer- tain property devised in fee shall not be sold until the oldest of the children reaches the age of twenty-five,^"^ and a condi- tion that certain realty devised in fee should not be sold, mort- gaged or encumbered for thirty years, was held void.^"^ So a restraint on alienation for twenty-five years,^"^ and a pro- hibition to sell or mortgage except to other devisees for ten years after the youngest devisee arrived at age,^°^ have been held void.ii" g^iH j^^ore is a permanent restraint on aliena- tion void. Hence attempts to devote realty to permanent uses which are not charitable in their nature, is void.^^^ Where the condition forbids the sale during minority, it 105 In re Thomas, 30 Ont. 49 ; McRae v. McRae, 30 Ont. 54; Pot- ter V. Couch, 141 U. S. 296; Jones V. Port Huron Engine, etc., Co., 171 111. 502; Hunt v. Hawes, 181 111. 343; Allen v. Craft, 109 Ind. 476; Conger v. Lowe, 124 Ind. 368; Pel- lizzaro v. Reppert, 83 la. 497 ; Hal- liday v. Slickler, 78 la. 388; Mc- Nutt V. McComb (Kan.) (1899), 58 Pac. 965; Fristoe v. Latham, — Ky. — (1896); 36 S. W. 920; Ernst V. Shinkle (Ky.), 1894; 26 S. W. 813; In re Bartlett, 163 Mass. 509 ; Cushing v. Spalding, 164 Mass. 287; Mandleuaum v, McDonell, 29 Mich. 78 ; Todd v. Sawyer, 147 Mass. 570; DePeyster v. Machiel, 6 N. Y. 467 ; Van Horn v. Campbell, 100 N. Y. 287 ; Kaufman v. Burgert, 195 Pa. St. 274 ; Jauretche v. Proctor, 48 Pa. St. 466; Naglee's App. 33 Pa. St. 89; Williams v. Leech, 28 Pa. St. 89; In re Van Horn, 18 R. I. 389; Williams v. Herrick, 19 R. I. 197; Zillmer v. Langduth, 94 Wis. 607. Contra, In re Bell, 30 Ont. 318 (condition against disposing of property or charging it except by will upheld. Mortgage forfeits es- tate ) . 106 Fowlkes V. Wagoner (Tenn.), 46 S. W. 586; Zillmer v. Laiid^'uth, 94 Wis. 607. 107 Jones V. Port Huron Engine, etc., Co., 171 111. 502. 108 Fowler v. Duhme, 143 Ind. 248. 100 Anderson v. Cary, 36 O. S. 506. 110 On the same point are Mandle- baum V. McDonnell, 29 Mich. 78; Conger v. Lowe, 124 Ind. 368; 9 L. R. A. 165; DePeyster v. Michiel, 6 N. Y. 467; 57 Am. Dec. 494; Roosevelt v. Thurman, 1 Johns. Ch., 220. iii/n re Bartlett, 163 Mass. 509; Cushing V. Spalding, 164 Mass. 287 ; Williams v. Hertick, 19 R. I. These cases were attempts to create per- manent trusts in realty for the ben- efit of testator's heirs or other ben- eficiaries. 810 LAW OF WILLS. has been said, in some jurisdictions, to be a valid condition. It maj be questioned, however, whether under the statutes authorizing a guardian, upon proper proceedings had for that purpose, to sell real estate where necessary to support a minor, any condition may prevent this power of sale. Where the restraint upon alienation is not general, but is partial, the authorities are not harmonious as to the extent "X) which conditions will be upheld. Courts also treat as void a provision that the devisee to whom a fee has passed can not dispose of the same without the consent of some designated person.-^ ^^ A similar view is taken of a provision that upon the sale of a fee by the devisee, certain siuns were to be paid to designated persons out of the proceeds.^ ^^ It not infrequently happens that a testator disposes of prop- erty in fee, and then attempts to provide for the disposition of the property after the death of the devisee in fee simple. A pro- vision of this sort is to be carefully distinguished from the cases where a fee simple is cut down to a life estate by a devise over after the death of the first taker.-^^'* The distinction be- tween the two classes of cases, though not strongly marked, is well recognized by the courts. If the devise over upon the death of A is intended to pass the entire property, it is evi- dent that the testator contemplated that A should take only a life estate, without any power of disposing of his property for a longer term than his own life.^^^ But where the devise over upon the death of A shows that A was vested ^^dth a fee simple estate, and that testator wishes him to have such an estate, but to direct the course of its descent upon his death, the limitation over after the fee, is repugnant to the nature of the estate and void.^^® So an absolute devise of land for life ii2McRae v. McRae, 30 Ont. Rep. 725; Ewing v. Barnes, 156 111. 61; 54; Muhlke v. Tiedemann, 177 111. Wolfer v. Hemraer, 144 111. 554; 606. Mulvane v. Rude, 146 Ind. 476; N. 113 /m re Elliott (1896), 2 Ch., E. 659; Law v. Douglass, 107 la. 353. 606; Barth v. Barth, — Ky. — ; 114 See Sec. 574. 38 S. W. 511; Ramsdell v. Rams- 115 See See. 574. dell. 21 Me. 288; Backus v. Presby- 116 Eowman v. Oram, 26 N. S. terian Association, 77 Md. 50; Ide 318; Howard v. Carusi, 109 U. S. v. Idc, 5 Mass. 500; Burbank v. oil LAW OF WILLS. prevents the subsequent creation of a spendthrift trust, so that the life estate of the devisee can not be encumbered or made liable for any of his debts.^^^ So a direction in a will that the devisee shall devise his fee simple estate to certain named persons is void for repugnancy.^ ^« So a condition that if de- visee does not dispose of his property in any way during his lifetime, it shall pass to certain named persons, is held to be void "« So conditions annexed to a fee simple estate, that the beneficiaries shall not dispose of it by will to certain named per- sons, have been held to be void.^^^ A similar view is taken ot absolute gifts of personalty by will with restriction as to the methods of disposing of the same.^^i Where the will provides that in case of alienation, or attempt- ed alienation, the interest of the first takes shall cease, and this has been put in the form of a limitation, the validity of such a condition has been upheld in some cases.^^^ Where the estate given by will is less than a fee simple, as a life estate or an estate for years, there is also a lack of har- mony as to the extent to which conditions in restraint of alien- ation should be upheld.i^^^ But such conditions are strictly con- Whitney, 24 Pick. 146; Burleigh v. 122 Metcalfe v. Metcalfe (C. AJ Clouoh 52 N. H. 267; Benz v. Fa- (1891), 3 Ch. 1, reversing L. R. bian"54 N J Eq. 615; McClellan 4.3 Ch. D. 633. /n re Porter (1892). V Lurcher, 45 N. J. Eq. 17; Annin 3 Ch. 481 (a condition forfeiting a v Vandoren, 1 McCart. 135; Arm- devise of a reversion upon assign- strong V. Kent, 1 Zab. 509; Hoxsey ing or attempting to assign held V Hoxsey, 10 Stew. Eq. 21; Hall v. valid and the interest forfeited by Palmer 87 Va. 354; 11 L. R. A. an attempted but ineffective post- 610- Robinson V. Ostendorff, 38 S. nuptial settlement). However, an in- ^ gg tesest is not forfeited by a previous * 117 Erhrisman v. Sener, 162 Pa. nuptial contract to settle upon the St 577 : Bank of Charleston v. Dow- wife of a devisee any further sums line. 52 S. Car. 345. which he might receive under the iTs Good V. Fitchthorn, 144 Pa. St. will of his mother. In re Crawshay 287- Johnson v. Johnson, 48 S. C. (1891), 3 Ch. 176. 408- 26 S E 7'>2 123 Eutterfield v. Reed, 160 Mass. 119 L Ve Gardner, 140 N. Y. 122; 361 (a restraint on alienation of a Clay V Wood, 153 N. Y. 134. Hfe estate held invalid ) . Roberts v. ifo Ludlow V. Bunbury, 35 Beav. Stevens, 84 Me. 325 (a restriction 36; Barnard v. Bailey, 2Har. on alienating a trust estate for life iDen 56- Morse V. Blood, 68 Minn. held valid). Pans v. Wmterburn, 7I 6 Ohio C. C. 635 (a restraint on 121 Wilson V. Turner, 164 HI. 398. alienation upheld). 812 LAW OF WILLS. strued. Thus a life estate, conditioned to end on its being sold, encumbered or permitted to be sold for taxes by the life tenant, is not forfeited by a sale on execution.^ ^"^ Thus where the life es- tates were granted upon a condition that the life tenants should reside on the property given, such conditions have been held void.^^^ In other jurisdictions they have been held to be valid.126 Where some collateral benefit is to cease if the beneficiaries remove from the land devised for life, the courts are not in accord as to the validit}^ of the condition.^ ^''' A gift of the income of certain property to testator's wife for life was restrict-ed by the condition that she should not dis- pose of any of such income by will. The condition was held void.^^^ The English and Canadian authorities, while in some con- fusion, are much more liberal to restraints on alienation than the United States authorities. Conditions against alienation except by w^ill have been upheld.^ ^^ And while conditions not to sell except to a member of the family have been up- held,^ ^^ a better reasoned line of cases holds that such re- straints on alienation are invalid.^ ^^ A devise to a bishop and his successors to use as he shall deem of the greatest advantage to his church in his diocese is not a restraint of alienation.^ ^^ 124 Henderson v. Harness, 176 111. ices oi certain persons should be 302 ; Paris v. VVinterburn, 6 Ohio rendered to the beneficiaries only C. C. 635. as loni^ as they lived upon the plan- 125 Eastman's Settled Estate, 68 tation devised to them, it was held L. J. Ch. N. S. 122: Howell v. to be valid. Harris v. Wright, 118 Fatry, 50 N. J. Eq. 265. N. C. 422; so In re Smith (1899), 126 Lowe V. Cloud, 45 Ga. 481; 1 Ch., 331. Marston v. Marston, 47 Me. 495; i28 Levy's Estate, 153 Pa. St. 174. Harrison v. Foote, 9 Tex. Civ. App. i29 /n re Bell, 30 Ont. Rep., 318; 576. In re Winstanley, 6 Ont. Rep., 315. 127 Thus a condition that an an- i so Doe v. Pearson, 6 East.. 173; nuity be given to a widow for life In re Macleay, L. R. 20 Eq. 186. should be reduced if she removed isi Attwater v. Attwater, 18 from premises devised to her for Beav. 330; In re Rosher, 26 Ch. life was held to be void. Eastman's Div. 801. Settled Estate, 68 L. J. Ch.. N. S. i32 Lamb v. Lynch, 56 Xeb. 135. 122. Where a condition that serv- LAW OF WILLS. ^^^ §685. Conditions against bankruptcy. — Spendthrift trusts. Conditions precedent that an estate shall not vest until the de- visee has discharged certain obligations, are held to be valid.^^s A condition that the devise shall vest when the devisee shall discharge ''his present liabilities" is held to refer to the lia- bilities which were in existence at the date of the death of the testator.i^^ Where testator evidently intends that the estate shall vest free from a trnst when the beneficiary named can no longer be held upon his debts, the fact that testator specified a dis- charge from the creditors or by proceedings in bankruptcy will not limit the release of beneficiary from his indebted- ness to these two means.^^^ Conditions subsequent that interest shall cease upon the bankruptcy of the devisee are upheld as valid.^^*' Where such conditions are imposed, the property is held forfeited where the bankruptcy exists at any time during which the gift vests or is payable, even though subsequently, before the gift is actuallv paid, the devisee is able to pay off his debts and ter- minate" the bankruptcy ;^^' or although the petition in invol- untary bankruptcy was dismissed upon appeal.^ ^^ A condition that the interest of the first taker shall cease and that there shall be a gift over to another upon the taking of propertv devised on execution, subjecting it to the debts of the devisee, and the like, are also held to be valid.^so And when the condition was that the trust should terminate, if the propertv were taken on execution, it was held that the appoint- ment of a receiver to collect the rents and profits was a^tak- ing on execution within the meaning of the condition.^^^ 133 St. John V. Dann, 66 Conn. way (1895), 2 Ch., 235; 13 Rep. 401 ; Johnson V. Gooch, 116 N. Car. 536. ,, ,n ^^ 64- In re Ames (R. D, 46 Atl. i37 Metcalfe v. Metcalfe (C. A.) 47 (1891), 3 Ch., 1. 134 St. John V. Dann, 66 Conn. i38 Jn re Loftus-Otway (1895), 2 4QJ Ch., 235: 13 Rep., 536. 13. Zn re Ames, (R. D, 46 Atl. i30 Brandon v. Robinson 18 Ves. „ Jr. 429 ; Thornton v. Stanley, 55 U. 130 Metcalfe v. Metcalfe (C. A.) S. 199. (1891) 3 Ch 1 ; Zn re Loftus-Ot- i40 Blackmann v. Fish (C. A.) (1892), 3 Ch.. 209. 814 LAW OF WJLLS. Where, however, the condition on which the estate was tj- end. was, in case it should be ''subjected or sought to be sub- jected by process of law" to the debts of devisee, it was held that obtaining judgment and issuing an execution thereon which was returned "no property" was not such an attempt to take by process of law, although the judgment was a lien upon the land of the judgment debtor in the county.^ '*^ . These conditions are not especially favored in construction. Thus where there was a condition that on the death of the life tenant an estate should pass to testator's son, unless at such time he should be under "any legal disability in consequence whereof he would be hindered in, or prevented from, taking the same for his own personal and exclusive benefit," it was held that while an act of bankruptcy might avoid his estate within the meaning of the gift, a judgment against him for a debt would not.^^^ Where the legal estate was devised for ninety-nine years, it was held that a condition that the property devised should not be taken for the debts of the devisee, was void.^'*' Whether it is possible to devise equitable interests in such a way that the beneficial interest of the cestui que trust can not be reached by his creditors is a question upon which the the courts are not unanimous. In the absence of re- straining statutes the great weight of American authority is that if testator expresses his intention in apt and suitable lan- guage, it is possible to create such an estate in equity as to exclude the creditors of the beneficiary from reaching such estate and subjecting it to their claims.^^^ 141 Bryan v. Dunn, 120 N. Car. 36. his debts. This is simply impos- es /n re Carew (1896), 2 Ch., sible." 311. 1*4 Nichols V. Eaton, 91 U. S. i43Hobbs V. Smith, 15 0. S. 419; 716; St. John v. Dann, 66 Conn. Wallace v. Smith, 2 Handy, 78. 401 ; Leavitt v. Beirne, 21 Conn. 1 ; The same will was involved in both Barnett v. Montgomery, 79 Ga. 726 ; cases. In these cases there was no Steib v. Whitehead, 111 111. 247; gift over. The court said: "The Meek v. Briggs, 87 la. 610; Pope general object of the testator seems v. Elliott, 8 B. Mon. 56; Roberts v. to have been to give the devisee the Stevens, 84 Me. 325 ; Smith v. Tow- absolute ownership of the land and ers, 69 Md. 77; Wemyss v. \Vhite, yet shield it from the pavment of 159 Mass. 484; Sears v. Choate, LAW OF WILLS. 815 The form of devise necessary to express this intention m such a way that the courts will give it etiect is a question upon which there is no unanimity of authority. The English de- cisions recognize and enforce such intent only when there is a provision that upon the insolvency of the beneficiary and the attempt of his creditors to reach his equitable interest, such interest shall thereupon cease and shall pass to another spe-- cified beneficiary; or when the estate created is a married wo- man's separate equitable estate; or where the trustees have a discretionary power to give or withhold the gift.^^^ The extent to which the English rule is enforced m this country is a matter of doubt. In some states the view is taken that where there is no discretionary power given to trustees and no limitation over upon the insolvency of the beneficiary, the interest of the beneficiary can be reached by his credit- ors}'^ In other states the addition of an express provision that the estate shall not be transferred by beneficiary during his lifetime, or that it shall not be taken for his debts, is sufficient to prevent such estate from being taken for his debts;''' and in some jurisdictions the intention of testator that the gift shall not be liable for the debts of the beneficiary may be m- 146 Mass. 395; Broadway National Bank v. Adams, 133 Mass. 170 43 Am. Rep., 504; Leigh v. Har risen, 69 Miss. 923; 18 L. R. A. 49 Lampert v. Haydel, 96 Mo. 439 2 L. R. A. 113; 9 Am. St. Rep. 358 Partridge v. Cavender, 96 Mo. 452 Handy's Estate, 1G7 Pa. St. 552 Seitzinger's Estate, 170 Pa. St. 500 Baeder's Estate, 190 Pa. St. 606 Jourolmon v. Massengill, 86 Tenn 81; Patten v. Herring, 9 Tex. Civ App. 640 ; Wales v. Bowditch, 61 Vt, 23; Barnes v. Dow, 59 Vt. 530 Garland v. Garland, 87 Va. 758 13 L. R. A. 212; 24 Am. St. Rep. 682. 145 Cooper V. Wyatt, 5 Madd. 482 ; Shee V. Hale, 13 Ves. Jr. 404 ; Bran- don V. Robinson, 18 Ves. Jr. 429 The creditors of the beneficiary can not reach a legacy which the ex- ecutor has discretion to pay or withhold. Brinker v. Speer, 9 W. L. B. 292. 140 Thornton v. Stanley, 55 O. S. 199. (In this case a gift of income to A for life "for her education and support during the life" of A, was held subject to her debts. Some im- portance was given to the fact that the income was fixed at $300 per year, as a minimum.) 147 Sears v. Choate, 146 Mas.s. 395; Sparhawk v. Cloon, 125 Mass. 263; Lampert v. Haydel, 96 Mo. 439; 2 L. R. A. 113; 9 Am. St. Rep. 358: Seitzinger's Estate, 170 Pa. St. 500. 816 LAW OF WILLS. ferred from the fact that the gift is expressly stated to he for the support, maintenance and the like, of the beneficiary.^*'^ "Where a devise is for the support and maintenance of A and his family, the attempt to subject A's interest to the pay- ment of his debts is open to the further objection that it is verv difficult to sever A's share from that of his family. The weight of authority is that this can not be done.^'*^ An absolute devise of income to one for life, however, does not of itself show testator's intention to create a spendthrift trust.^^'^ Where the trustees have discretionary power to pay a cer- tain fund to A on his arriving at a certain age, which fund is to be paid out of the principal settled on a spendthrift trust in favor of A, it was held that when A reached the age speci- fied and the trustees decided not to pay such sum to A, it thereupon became fixed as part of such spendthrift trust and could not be reached by A's creditors.^ ^^ Even when the trustees have discretion in paying the income to the beneficiary, the income, when once paid over, may be seized for the debts of the beneficiary like any other prop- ertv.152 148 Meek v. Briggs, 87 lo. 610; Leigh V. Harrison, 69 Miss. 923; 18 L. R. A. 49. Contra, Raynolds v. Hanna, 55 Fed. 783; Thornton v. Stanley, 55 O. S. 199, affirming 7 Ohio C. C. 455, citing Slattery v. Wason, 151 Mass. 266. 149 Godden v. Crowhurst, 10 Sim. 642; Hill v. McRea, 27 A\-a. 175; St. John V. Dann, 66 Conn. 401. In one federal case, ho^vever, such severance was permitted. Raynolds V. Hanna, 55 Fed. 783. 130 Kingman v. Winchell, — Mo. — ; 20 S. W. 296. isiEaeder's Estate, 190 Pa. St. 614. On application for instructions by a trustee who was authorized to pay tlie principal to A in such sums as trustee should think proper and if A did not make proper use of the money, to furnish him with support merely, it was held that on A's ar- riving at the age of sixty and saving a thousand dollars out of an an- nual income of eight hundred, the trustee should pay him the principal even though A had failed in one or two business enterprises. Ped- rick v. Pedrick, 50 N. J. Eq. 479. 152 Kruse v. Baeder, 31 W. L. B. 112. L,AW OF WILLS. 817 §686. Conditions as to use of property. Conditions that if the property given by will shall cease to be used for the purpose for which it is given the interest of the beneficiary shall cease, have been upheld where the gift was for a charitable use.^^^ Where a devise was made to a town, with a provision that the income from whatever source obtained should be kept as a perpetual fund guaranteed by the to\vn with G% forever, it was held that the gift was not conditioned upon the town's granting that rate of interest; nor could the gift be forfeited by reason of the town's borrowing the fund on interest.^^'* A devise of land to a to^vn for "a common" was held to give the land subject to the same public uses as the original com- mon, and there was no implied condition against using part of it for a school building.^ ^^ §687. Implied condition against murder of testator by devisee. The question whether devisee, who murders testator in order to take under the will, thereby forfeits his rights under the will as upon a breach of an implied condition, is fortunately a question which is rarely presented for adjudication and upon which precedents are few. Where the question has been presented for adjudication, it was held that the devisee by such conduct forfeits his rights under the will and takes nothing.^ ^^ This doctrine applies 153 Keith V. Scales, 124 N. Car. should be built thereon within one 497. year.) In re Van Horn, 18 R. I. (It has been held, however, that 389. where a house was devised for use 154 Quincy v. Attorney General, as a parsonage, with the condition 160 Mass. 431. that if it should be allowed to de- 155 Newell v. Hancock, 67 N. H. eay for one year, it should go to 244. the town, it was held that under ise Lundy v. Lundy, 24 Can. S. C. a subsequent statute the specific 650, reversing McKinnon v. Lundy, property might be sold and the pro- 21 Ont. App, 560; Riggs v. Palmer, ceeds reinvested in property to be 115 N. Y. 506. The grant UT^on which used for the same purpose, provided this holding rests is expressed by the that if vacant land were bought Court of Appeals of NewYork in with the proceeds a parsonage Riggs v. Palmer, supra. "Here there 818 LAW OF WILLS. alike whether the devisee is guilty of murder,^ ^^ or of man- slaughter only.^^^ The forfeiture of a devise in such a case may be declared by the court of equity in a suit to have the will cancelled and annulled in so far as it conveys property to the murderer,^ ^'^ but it does not render the devise void. Hence the question of the title of the devisee can not be raised collater- ally in a suit by an heir to partition land which was devised to the murderer.^ ^° was no certainty that this murder- er would survive testator or that the testator would not change his will, and there was no certainty that he would get this property if nature was allowed to take its course. He, therefore murdered testator ex- pressly to vest himself with an estate. Under such circumstances what law, human or divine, will al- low him to take the estate and en- joy the fruits of his crime?" In this case testator had made a will in favor of his grandson, and was contemplating revising it. The grandson poisoned his grandfather in order to prevent such revocation. The court said that to allow him to take under such circumstances "would be a reproach to the juris- diction of our state, and an offence against public policy." 157 Piggs V. Palmer, 115 N. Y. 500. 158 Lundy v. Lundy, 24 Can. S. C. P. fi.iO. iB9Riggs V. Palmer, 115 N. Y. 500. 160 Ellerson v. Westcott, 148 N. Y. 149. This was a partition suit brought by a disinherited heir to partition real estate devised to the murderer. The question arose on his asking leave to amend so as to show that the beneficiary poi- soned the testator in order to ob- tain the benefit of the will. The Supreme Court held that this ques- tion might be thus raised. Ellerson V. Westcott, 88 Hun. 389, was re- versed by the N. Y. Court of Ap- peals in Ellerson v. Westcott, 148 N. Y. 149. The court gave its reason for refusing to allow this question to be presented in a partition suit on the ground that if the facts al- leged in the assignment were true "a court of equity will intervene and deprive her (the murderer) of the benefit of the devise. It would defeat the fraud by staying her hand and enjoining her from claim- ing under the will. But the devise took effect upon the death of the testator; and transferred the legal right and title given her by the will. The relief which may be ob- tained against her is equitable and injunctive. The court in a proper action, will, by forbidding the en- forcement of the legal right, pre- vent her from enjoying the fruits of her iniquity. It will not and can not set aside the will that is valid but it will act upon the facts aris- ing subsequent to its execution, and deprive her of the use of the prop- erty." LAW OF WILLS. °^^ §688. Miscellaneous conditions. Testator devised land to one for life and provided that if, at his death, there shonld be pending litigation concerning the title, devisee should receive other lands in lieu thereof. At testator's death litigation was pending between testator and de- visee concerning the title. It was held that devisee took the lands originally devised, the condition being inserted merely to prevent his receiving land under a doubtful title. A devise to a college upon condition that it change its name, failed where the trustees had instructed the president and secretary to obtain the legislation necessary to allow it to change its name, but the legislature had not changed such name.^^^ A condition that a legacy to a minor should be revoked if any attempt were made "at law or otherwise" to withdraw him from the control of the executors, is not broken by a sur- render of such child by the executors tx) his father under di- rection .of their attorney.^*'^ A bequest to a son of testator's wife by her former marriage upon condition that the said wife should take under the will, and waive her rights under the statutes, was held to be valid.^*^* The testator devised a tannery to his son A, and a mill race to his son B, A to have the privilege of taking water from the mill race and B to have the privilege of having A tan every year two hides which B should furnish. It was held that this privilege was personal to B, and that A did not have to tan hides for remote heirs or alienees.^ ^^ A legacy to the executor, naming him, "over and above (his) legal fees and compensation" was held to be on condition that he qualify as executor.^^^ So a gift conditional on the con- 161 riatt V. WithiTif?ton, 121 N. Y. lee Harris v. Harris (Ky.), 49 S. 138, reversing 47 Hun, 558. W. 106 ; 20 Ky. L. Rep. 1313, rehear- 162 Merrill v. Wisconsin Female ing refused, 50 S. W. 533 ; 20 Ky. L. College, 74 Wis. 415. Rep. inil. (Hence the condition 103 White's Estate, 163 Pa. St. was broken when such pe^^on ^did 388 not qualify and made no further effort to qualify than moving to re- voke the appointment of an ad- 2,4 ' ~~ ministrator (inn testamento an- 164 Carr's Estate, 138 Pa. St. 352. effort to qualify than moving to re- i65Mosser v. Lesher, 154 Pa. St. voke the appointment of an ad- 820 LAW OF WILLS. tinned success of a certain business should not be paid where the profits in the years following testator's death do not average one twentieth of the profits for the year immediately preced- ing his death, and the profits for the ten years following his death would pay about one-eighth of the conditional legacies.^ ®^ nexo, which motion was overruled le? Patterson's Estate, 173 Pa. St. and no appeal was taken.) Com- 185. pare with Sec. 673. LAW OF WILLS. 821 CHAPTER XXXI. POWERS. §689. Definition. — Creation of power of sale. A power is "an authority whereby a person is enabled to dispose of an interest in real estate vested in himself or an- other." ^ While a power is often given in connection with an interest in realty, such as a life estate or an interest as trustee, this is not necesarily the case. From its definition it will be seen that a power does not itself confer any estate upon the donee of the power.^ A power of sale may be conferred by will without the em- ployment of any technical words. Any expression of testator's intention to confer upon the designated persons the power to dispose of testator's property by deed of conveyance will be sufficient.^ Thus a power of sale is often implied from a di- 1 Hadley v. Hadley, 147 Ind. 423. was held that a general power of 2Bennalack v. Richards, 116 Cal. sale to executors vests the fee in 405 ; Todd v. Wortman, 45 N. J. Eq. them. •jno 3 Lee V. Simpson, 134 U. S. 572; It has heen held, however, that Smith v. Mclntire, 83 Fed. Rep. 456. power to the executors to "apportion A power of disposition given by a and distribute" certain realty vests gift of property to testator's wife the leoal title to such realty in them "during her natural life (she, how- as trustees until such distribution. ever, first disposin- of a sufficiency Nimmons v. Westfall, 33 O. S. 213; to pay my just debts"). and in Williams v. Burrows, 4 W. Chase v. Cartwright, 53 Ark. 358. L J 527 (Ohio Supreme Court), it (Power to convey given by a power 822 LAW OF WJLLS. rection to executors or trustees to divide property, where from the nature of the property or the context of the will it is evi- dent that a division in specie is either impossible or is not con- templated by testator.^ An implied j)ower of sale does not extend any further than the necessity from which the power arises.^ A power of sale of realty may also be implied from a direction that some part to executors to dispose of property ■devised to them in trust as they think best for the support of minors. ) Stoff v. McGinn, 178 111. 46; Mul- ligan v. Lamb, 178 111. 130. (Pow- er of sale given by a devise of the whole estate to executor with direc- tion to equalize advancements and divide equally among the beneficia- ries.) Trimble v. Lebus, — (Ky.) — ; 22 S. W. 329; 15Ky. L. R. 85; Bailey v. Fisher, — Ky. — , 1896, 38 S. W. 140. (A power of sale given by a de- base to testator's son A with a pro- vision that the other children should have an equal part out of the pro- ceeds of the lands.) Fink v. Leisman, — (Ky. ) — , 38 S. W. 6 ; Hughes v. Rhodes, — Ky. — (1896), 37 S. W. 489; Hill v. Bean, 86 Me. 200. Seeger v. Leakin, 76 Md. 500; Hughes v. Bank, 86 Md. 418. (A power of disposition given by a di- rection that certain bank stock ishould be transferred to A "in her own name to use the interest there- of as long as she may live, and at her death to be equally divided ^mong her children.") Stein V. Stein, 79 Md. 464. (A power of sale implied from a direc- tion to hold property upon separate trust where such holding is impos- sible without a sale.) lasigi v. lasigi, 161 Mass. 75 ; Lovejoy v. McDonald, 59 Minn. 393. (A power of sale of land implied from a power to pay debts, funeral expenses, together with a power to make deeds which should be neces- sary therefor.) Ness V. Davidson, 45 Minn, 424; Tomkins v. Miller. — N. J. Eq. — 27 Atl. 484. . (A power of sale implied from a power to distribute, where the only projjerty to be distributed consisted of one building, a sale being necessary to make the distri- bution possible.) Story V. Palmer, 46 N. J. Eq. 1 ; Cruikshank v. Parker, 52 N. J. Eq. 310; Lindley v. O'Reilly, 50 N. J. L. 636, 7 Amt. St. Rep. 802 ; Cahill v. Russell, 140 X. Y. 402. Pennsylvania Company for Insu- rance V. Leggate, 166 Pa. St. 147. (A power to sell implied from a power to convert unproductive land.) Bilderbach v. Boyce, 14 S. Car. 528. 4 Stoff V. McGinn, 178 111. 46; Mulligan v. Lambe, 178 111. 130; la- sigi V. lasigi, 171 Mass. 75; Thomp- kins V. Miller, — N. J. Eq. — , 27 Atl. 484; Story v. Palmer, 46 N. J. Eq. 1; Wilson v. Wilson, 46 N. J. Eq. 321; Parker v. Seeley, 56 N. J. Eq. 110; Mimms v. Delk, 42 S. C. 195. 5 Smith V. Hall, 20 R. I. 170. (An implied power of sale to equalize certain shares does not extend any further than sufficient to equalize such share.) LAW OF WILL3. 823 of testator's property, it not appearing clearly what, was to be sold and paid upon testator's debts, where the debts ex- ceeded the amount of the personal property.*^ And where the devisees may take personalty but can not take realty, as where they are non-resident aliens, it was held that a general power of sale in the executor imposes on him a duty to convert realty into money and distribute.'^ A power of sale was implied from a devise of the use of certain realty "until the sale and conveyance of said premises by my executor as hereinafter provided," there being no subsequent provision.^ A power of sale expressly conferred to pay specific legacies and the residuum given after paying them, was held not to be revoked by subsequent revocation of the residuary clause, and the substitution therefor of specific gifts.^ A power to divide property among the beneficiaries, where the division may be made in specie, does not impliedly give a power of sale;^'-* and where the land is by statute liable for the payment of the debts of testator, a devise of land, after the payment of debts, does not impliedly create a power of sale.^^ A direction to gather the estate into one fund does not of itself empower the executor to sell the realty.^ ^ A power to executors to lease lands may be implied from a gift of a third of the net rents, after deducting costs of repair, expenses of collection and the like, followed by a power of sale to executors, though .no specific provision is inserted di- recting the executors to lease the realty. -^^ 6 Schroeder V. Wilcox, — Neb. — ; rejected the words "as hereinafter 57 N. VV. 1031, provided.") 7 Greenwood v. Greenwood, 178 111. » Secgar v. Leakin, 76 Md. 500. 387, citing Hunt's Appeal, 105 Pa. lo Gammon v. The Gammon The- St. 128; Penfield v. Tower, 1 N. D. ological Seminary, 153 111. 41; Pot- 216; Cook v. Cook, 20 N. J. Eq. 375; ter v. Ranlett, 116 Mich. 454. Frazer v. United Presbyterian n Crudup v. Holding, 118 N. Car. Church, 124 N. Y. 479; Lent v. 222; 24 S. E. 7. ; Worley v. Taylor, Howard, 89 N. Y. 169; Re Gantert, 21 Or. 589. 136 N. Y. 106. 12 Smalley v. Snialley, 54 N. J. Eq. Cahil V. Russell, 140 N. Y. 402. 591. (To reach this conclusion the courts i3 Peirce v. Peirce, 195 Pa. St. 417. 824 LAW OF WILLS. §690. How a power to devise may be created. A donee of a power may be given power to dispose of his property by his will to take effect upon his death. This power may be given by such general words as give authority to dis- pose of the property described, if the grantee of the jDOwer should deem expedient.^'* A power to dispose of property by will may, of course, be given in specific terms, such as a devise of property to any one Avhom A should, by will, direct.^ ^ A power of disposition by will is not given, however, by a life estate coupled with power to sell.^^ This is especially true where the power of sale is evidently for the exclusive benefit of the life tenant to furnish support and maintenance for him.i^ A power given by will to A to dispose of certain realty by his will, may be exercised by A's will even if A dies before the donor of the power. -^^ §691. Construction of powers. A power of sale for a specific purpose, such as for the pay- ment of testator's debts and for the support of the donee of the power, does not confer a general power of sale for all purposes ;^^ therefore, a power of sale to pay debts of testator can not be exercised if the personal property undisposed of is sufiicient to pay the debts.''^'' And such a power of sale can not be exercised where the debts of testator are barred by the Statute of Limitations.^^ i4Burbank v. Sweeney, 161 Mass. L. 3f.3 ; affirmed 01 N. J. L. 687, 490. (And under such a gift the citing Herring v. Barrow, L. R. 13 power to devise is not taken away Ch. Div. by a provision that, if the donee i^ Keniiston v. Mayhew, 169 Mass. should not dispose of the property 166; Ford v. Ticknor, 109 Mass. 276. during her lifetime it should go to is Condit v. De Hart, — N. J. — ; a designated person.) 40 Atl. 776. 15 Krause v. Klucken, 13.5 Mass. i9 Griffin v. Griffin. 141 111. 373. 482; OIney v. Balch, 154 Mass. 318; 20 S^veeney v. Warren, 127 N. Y. Austin V. Oakes, 117 N. Y. 577; 426; 24 Am. St. Rep. 468; Seeds Thurston v. Bissel, 13 O. C. C. 293; v. Burke, 181 Pa. St. 281. 7 O. 1). 235. 21 Hemphill v. Pry, 183 Pa. St. 16 Wooster v. Fitzgerald, 61 N. J. 593. LAW OF WILLS. 825 A power to sell, to provide for the support of testator's widow in her lifetime, and for her burial, with a provision that the trustees shall divide the residue of the proceeds, does not authorize a sale for the mere purpose of dividing the prop- erty."^ Where an express power of sale is given, but the purpose for which it is to be used is not specified, it is held to be a power of sale in order to pay the proceeds to the devisees in lieu of the devise,^^ and, therefore, such a power of sale is not re- pugnant to the devise of tlie property in fee.^* A power of appointment among certain persons impliedly gives a power to make advances.^^ A power specifically given to make advancement on marriage is exhausted by an advance- ment made at that time, and can not be further exercised by making advancement thereafter."*" Where it appears from the will that testator's intention was to allow the donee of the power to select out of a given class, he can not appoint those not members of the class.^'^ Ordinarily, however, a power to divide among a given class, as testator's children, gives the donee of the power a right to use his own discretion as to the proportions which each will receive, but does not allow him to disinherit any one of them absolutely.^* A power of apportionment which is given in terms to indicate that the proportions are to be left to the discretion of the donee of the power is limited by a subsequent provision that the shares of the children are to be made equal.^^ 22 Hammond v. Conkright, 47 N. J. 27 Huber v. Free, 5 O. C. D. 537 ; Eq. 447. Horwitz v. Norris, 49 Pa. St. 213. 23 Ness V. Davidson, 45 Minn. 424. 28 Hatchett v. Ilatchett, 103 Ala. 24 Sneer v. Stutz, 93 lo. 62 (dis- 556: Clay v. Smallwood, 100 Ky. tinguishing Halliday V. Strickler, 78 212; Faloon v. Flannery, 74 Minn, lo. 388.); Mellen v. Mellen, 139 N. 38; Wright v. Wright, 41 N. J. Y. 210. Eq. 382; Thrasher v. Ballard, 35 2n Franke v. Auerbach, 72 Md. W. Va. 524. 580; In re Hocking (C. A.) (1898). 29 McCamant v. Nuckolls, 85 Va. 2 Ch. 567. 333. 26 /n re Croft, 162 Mass. 22. 826 LAW OF WiLL8.\ Where the executors are given uncontrolled powers ©f ap- pointment, they may appoint for themselves.^'^ A power to sell and convey if given to life tenants may be exercised by a partition by agreement among themselves. ^^ A power given for a specific purpose exists until the accom- plishment of such purpose.^^ In a devise to executors to sell realty and to divide the pro- ceeds in four shares, one of which was to be held during the life of the beneficiary, the power of sale existed after divi- sion of the realty into four shares.^^ A power of sale to be exercised under specific contingencies can not be exercised unless tJiose contingencies exist.^'* Thus a power to sell under direction of the probate judge could not be exercised by a sale without such direction.^^ And where power of sale of certain described property under specific con- tingencies is given, it is not enlarged by a subsequent general power of sale of testator's property.^® Higginson v. Kerr, 30 Ont. 62. •■ii O'Rourke v. Sherwin, 156 Pa, St. 285. 32 Johns Hopkins University v. Middleton, 76 Md. 186. (A devise in trust for testator's children to terminate when each should reacli the age of thirty, with power of sale to make a division of the prop- erty between the children, was held to confer a power which lasted after the first child reached the age of thirty.) Hallum v. Silliman, 78 Tex. 347. (A direction that, upon the arrival of the eldest son at majority, the balance of the prop- erty left after the exercise of a power of sale, the proceeds to be devoted to the support and educa- tion of the children, should be di- vided, was held to create a power of sale for the education of the minor children which did not ter- minate with the arrival of the eldest son at majority.) 34 Petit V. Flint, etc., Ry. Co. 114 Mich. 302. (A power to sell land after it was platted does not authorize the exercise of sale before it is platted.) Mersman v. Mers- man, 136 Mo. 244. (A power to sell a homestead when none of tes- tator's unmarried children desire to reside there, does not authorize a sale to reinvest the proceeds in another dwelling to be used as a homestead by such children.) 35 Bates V. Leonard, 99 Mich. 296; 58 N. W. 311. 36 Petit V. Flint, etc., Ry. Co. 114 Mich. 362. (A power to sell certain real estate when surveyed and platted can not be exercised before survey.) So Rice v. Tav- ernier, 8 Minn. 248 ; Mersman v. Mersman. 136 Mo. 244. LAW OF WILLS. 827 When the contingencies have been complied with, however, the power of sale may be exercised.^^ A power of sale in a certain time is not destroyed by failure to exercise it within the time limited.^^ Where a power of sale is given solely as a means of ac- complishing some purpose which the law will not permit, the power itself is invalid.^*^ However, an absolute power of sale, given without any reference to its purpose, is not avoided by the fact that the disposition of its proceeds may be in part in- valid.^« A power to executor to mortgage testator's realty, the pro- ceeds to be used to pay testator's debts, is not prejudicial co the rigths of the creditors and is valid."* ^ kSuch power may be implied and heed not be expressedly given.^^ On the other hand, a life estate to testator's widow, with a power to sell real 37 Harp V. Wallin, 93 Ga. 811. {A power to sell lands in case de- visee saw fit to send testator's widow to an insane asylum may be exercised validly, and will pass good title if in good faith where the devisee decides to send testa- tor's widow to an asylum and gets an order adjudging her insane, even though she may not actually be sent. ) 38 Fahnestock v. Fahnestock, 152 Pa. St. 50 ; Marsh v. Love. 42 N". T. Eq. 112: Hale v. Hale, 137 Maas. 168. 39 /« re Piercey (1898), 1 Ch. 565 ; 67 L. J. Ch. N. S. 297 ; 78 Law T. Rop. 277 ; Dana v. Mur- ray, 122 N. Y. G04 ; Petit v. Flint, etc., Ry. Co. 114 Mich. 362. (In the above cases the power of sale was void as given in order to carry out a scheme which involved an in- valid restraint of alienation.) Hn- idekoper v. Perry, 14 O. C. C. 68; 7 Ohio Dec. 326. 40 Pearson's Estate, 98 Cal. 002. 41 Aimes v. Holderbaum, 44 Fed, 224. 42 /n re Bellinger (1898), 2 Ch. 534; 67 L. J. Ch. N. S. 508 (a pow- er to trustees to lease the premises pending a sale, and to expend money necessary to improve them so that they can be leased autho- rizes them to mortgage the prop- erty in order to raise such money ) . Faulk v. Daahiell, 62 Tex. 642, 50 Am. Rep. 542 ; Lardner v. Will- iams, 98 Wis. 514 (power to tes- tator's WH^ow to carry on a busi- ness, and to hold the property by the same right as testator had done, together with an express pow^r to sell, gives her the pow^se, to decide whether a simple power of sale would include a pow- er to mortgage). 828 LAW OF WILLS. estate and pay testator's debts, does not give her authority to mortgage more than her life interest.^ ^ The weight of authority apparently is that power to sell and convey does not carry with it the power to mortgage.'*'* A power to sell and convey real estate to pay testator's debts can not be exercised by a conveyance to one of the heirs who is to mortgage it to secure money for the executors and then reconvey it to the executors subject to the mortgage.^^ A power given to dispose of property in some specified way can not be validly exercised in an entirely different way.'*^ Thus a power to dispose of property by will can not be validly exercised by deed.^'^ A power to distribute after a life estate "by cash sale or division" does not give a power to confirm a lease made by the life tenant.'** A power of sale can jiot be exercised by an exchange.^^ A restriction of power, whether to one who is merely a donee 43 Columbia Ave., etc., Co. v. Lewis, 190 Pa. St. 558 (in this case the mortgagee knew that the money was raised in order to en- able testator to carry on a busi- ness ) . 44 Hoyt V. Jaques, 129 Mass. 286; Arlington State Bank v. Paul- sen, 57 Neb. 717; but see same case, 80 N. W. 263, in which, on rehearing, the judgment in 57 Neb. 717 was set aside on the ground of estoppel, without apparently mod- ifying the provisions of the text , Ferry v. Laible, 31 N. J. Eq. 566: Bloomer v. Waldron, 3 Hill, 361 ; Quisenberry v. Watkins Land Mortgage Company, 92 Tex. 247 ; qixestion left undecided in Lardner V. Williams, 98 Wis. 514. In Penn- sylvania, however, it is held that a general power of sale includes a power to mortgage: Zane v. Ken- nedy, 73 Pa. St. 182. 45 Arlington State Bank v. Paul- sen, 57 Neb. 717; but see same case in 80 N. W. 263, in which on re- hearing the devisees and general creditors were held to be estopped to deny the validity of the mort- f^ao'es. 46 Wooster v. Fitzgerald, 61 N. J. L. 368; affirmed, 61. N J. L. 687. 47Gaskins v. Finks, 90 Va. 381 ( in this case it was held that thi.-i was not even a defective exercite of a power which equity would aid, but was no exercise at all ) . In Franke v. Auerbach, 72 Md. 580, it was held that a gift to A for life, with a power to indicate by appointment which of the testator's children should take and in what shares implies if the donee of the power wishes so to do, a power to convey to a child of testator's by M^ay of advancem.ent. 48 Johnson v. Granthan, 104 Ga. 558. 49 Taylor v. Galloway, 1 Ohio, 232. LAW OF WILLS. 829 of a power, or to one who is also a trustee, is not held to ex- tend to the disposition of property after the purpose for which the power was created is at an end.^^ Whether a power of sale terminates with other rights given by the will or whether it may be exercised independently of them, is entirely a question of the intention of testator. A power given solely for a designated purpose can not be exer- cised after that purpose has ceased.^ ^ Power to dispose of the income indefinitely is held to in- clude power to dispose of the principal.^^ Where the power is to be exercised in the personal discre- tion of the donee of the power, such discretion can not be con- trolled.^^ The donee of a power sometimes attempts to exercise the power so as to obtain some advantage from the bene- fiiciary of such power. Where the power is exercised upon such conditions, it is treated as fraudulent and a nullity ;^^ but where the power is exercised only in the hope that the bene- ficiary will provide for others, without any express agreement to that effect, the gift is valid.^=^ A power clearly given is not limited except by clear lan- 50 Attorney General v. Newberry Library, 150 111. 229; 51 111. App. 166 (in this case a restric- tion upon a power of making leases, to leases for twenty years, was held to apply only to the power of executors during distribution, and not to the power of the ultimate beneficiaries) ; Harvard College v. Weld, 159 Mass. 114. 51 Heard v. Read, 171 Mass. .374 (a power of sale which, from the context, was evidently given for the purpose of reinvestment during a trust ends with the termi- nation of the trust) . ( On the other hand when the power of sale is in- dependent and for other purposes, it will not be terminated) ; Cot- ton v. Burkelman, 142 N. Y. 160 (a power to a life tenant to sell and reinvest as she might deem best for the benefit of the remain- derman does not terminate with the death of the remainderman). ^>-^ In re L'Herminier (1894), 1 Ch. 675; Johnson v. Childs, 61 Conn. 06. 53 Beers v. Narramore, 61 Conn. 13. 54 /rt re Perkins (1893), 1 Ch. 283 (a devise to A if h6 would resign certain benefits under the will) ; 3 Rep. 40. 55 In re Crawshay, L. R. 43 Ch. D. 615. 830 LAW OF WILLS. guage.^^ Thus a direction to convert certain real estate into other property at "schedule prices" was held to be an absolute power of sale, the price being advisory only.^^ §692. Who may exercise power. Where a power of sale is clearly given, but the will does not provide who is to exercise it, the omission may be sup- plied by construction. Thus if the context of the will shows that the executors are to receive and expend the proceeds of the sale, it is held that the power of sale is given to them.^* "Where a testator directs that his real estate shall be sold and the proceeds of the sale are to be disbursed or distributed by the executors, the power to sell is an implication of law." ^^ But a gift in trust for the use of the children of testatrix for seven years, providing that the property might be sold within such time if a majority of the children should elect, does not confer a power of sale upon the trustee. "The legal estate in the property here devised is clearly vested in the chil- dren of the testatrix, and they can exercise control over the transfer of title." ^^ While if the proceeds are to be expended by trustee, the power of sale may be exercised by such trus- teV*5i Where no interest or estate is given to the donee, and dis- cretionary power is given to several in such a way as to show that their united discretion is relied upon by testator, it is 56 Pope V. Sullivan, 156 Mass. Collier v. Grimesey, 36 0. S. 17; 585; Cochran v. Elwell, 46 N. J. Wood v. Hammond, 16 R. I. 98. Eq. 333. 59 Ogle v. Rejmolds, 75 Md. 150, 57 Ford V. Ford, 80 Mich. 42. quoted in Porterfield v. Porterfield, ssRathbone v. Hamilton, 4 App. 85 Md. 663. D. C. 475 ; Van Brocklin's Estate, so Porterfield v. Porterfield, 85 74 lo. 412; Mandlebaum v. Mc- Md. 663. Donell, 29 Mich. 78 ; Ogle v. Rey- ei Lindley v. O'Reilly, 50 N. J. nolds, 75 Md. 145; Porterfield v. L. 636: 7 Am. St. Rep. 802: Law- Porterfield, 85 Md. 663; Belcher ton v. Lawton, 5 O. X. S. 441; 7 V. Belcher, 38 N. .T. Eq. 126 ; O. D. 493. Vaughan v. Farmer, 90 N. Car. 607 ; 881 LAW OF WILLS. held that no number less than all of them can exercise the ''T plwer of sale given to the executor is substantially com- plied with by a sale by the devisee of the property subject to Lh power of sale, when the proceeds of the sale are given o the executor and are applied by him to the purposes set fortli in the will."' ■ j i, ii A power coupled with an interest may be exercised by the survivors of the donees of the power, unless expressly pro- vided otherwise by will."' In South Carolina a statute provides that powers conferred upon several executors may be exercised by the survivors. When all the trnstees or executors, to whom the power of sale was originally given, have died or resigned, the q"-'-" ^ P^ sented whether this power of sale may be exercised by their nccessors as such, or whether the power of sale is terminated In the latter case, if it is necessary to sell the real es ate to pay the testator's debt«, it can be done in most jurisdictions by a snit for that purpose in the court having probate jurisdiction. The question, as to the right of the successors, or executors or trnstees to exercise the power, turns entirely upon the in en- tion of the testator as manifest in the will. If he absolutely directs a power of sale, and leaves the executors or trustees only to the ministerial duty of carrying this mandatory power into execution, it is generally held that the successors may ex- e=Wa,:; ^' ^* ^^^' ^^r .. 74 Ala their interests to C. It was held 6. Robinson v. Alhson 74 Ala. the ^^^^.^^ ^^^^ ^^^^^^^^. 254; Bredenburg v. Bardm, 36 b hat C ^ ^^^ ^ ^^^^^^ C. 197. (The court sa.d m th. und th ^^^^^ ^^.^^^ ^^ case: "If it be a power coupled er ne coum with a trust, it survives and may not. be executed by one executor where 832 LAW OF WILLS. ercise this power without any suit for that purpose, or without the authority of the court. *^*^ Where the power of sale is given absolutely and uncondi- tionally, the fact that the executrix is to sell when she thinks it most advantageous, does not make such a discretionary power as can be exercised by her successor in office.^^ So where a will directed that the executors should pay certain sums of money to testator's relatives for their support in executors' best judg- ment and discretion, and administrator with the will annexed might, in his reasonable discretion, fix the sum thus to be paid.^^ But if the power of sale conferred is not absolutely and unconditionally, but is entirely discretionary with the person to whom it is given, his successors in office can not ex- ercise it.^^ Interesting questions are sometimes presented where a power of sale is given to one who is at once life tenant, exec- utor and trustee, and the will does not clearly specify in which capacity the sale is to be made. The question is one of the tes- tator's intention which must often be determined by the careful study of the whole will. If the power of sale is to be exer- cised for trust purposes, the donees of the power may sell as trustees without qualifying as executors.'^^ While, on the other hand, if the power of sale is for the purpose of settling the es- tate, the power is to be exercised by the donees as executors, and upon their discharge as executors their power to sell deter- mines.^^ So in jurisdictions where the power of an executrix 66 Meddis v. Bull (Ky. )> 18 S. cretion as to paying the support, W. 6; Bay v. Posner, 78 Md. 42; but only as to fixing the amount, 26 Atl. 1084; Venable v. Mercan- and the view taken by the court tile Trust Co., 74 Md. 187 ; Schi-o- was the one best designed to car- eder v. Wilcox, 39 Neb. 136; 57 ry testator's general intention into N. W. 1031; Potts V. Breneman, execution). 182 Pa. St. 295; O'Rourke v. Sher- 69 Chgfmbers v. Tulane, '9 N. J. win, 156 Pa. St. 285; Boutelle v. , Eq. 146; Farrar v, McCue, 89 N. Bank, 17 R. I. 781: In re Blakely, Y. 139. 19 R. I. 324; Smith v. Hall, 20 R. to Green v. Alden, 92 Me. 177: I. 170; Bredenburg v. Bardin, 36 Hall v. Bliss, 118 Mass. 559: 19 S. Car. 197. Am. Rep. 476; Mordecai v. Schir- 67 Potts V. Breneman, 182 Pa. mer, 38 S. C. 294. St. 295. '^'^ Goad v. Montgomery, 119 Cal. 68 Allen V. Barnes, 5 Utah, 100 552 : 03 Am. St. Rep. 145. (in this case there was no dls- LAW OF WILLS. 833 terminates by marriage, a power of sale to testator's widow, to be exercised for purposes of settling the estate, terminates upon her second marriageJ^ A general power of disposition may be exercised by the attorney in fact of the donee of such powerJ^ §693. Powers to be exercised with the consent of designated persons. A testator may create a power of sale to be exercised only with the consent of all of a certain number of persons. In such a case any number of the designated persons, less than the whole, can not exercise such power.''''* Thus authority to sell in case widow, son and daughter should agree can not be ex- ercised by the widow and daughter alone.'''^ Where some of the persons whose consent is to obtained die before the sale, it has usually been assumed by the court that the surviving members might authorize the sale.'''^ How- ever, a power to sell upon the request of a majority of certain children of testator was held, after the death of some, to be capable of exercise in case a majority of the whole number con- curred.'^^ And a power of sale to be exercised, providing the widow would sigTi the deed, was held to be incapable of ex- ercise after the death of the widow.''* §694. Effect of failure to exercise power. Testator may, by Avill, give power of appointment in such terms that the donee of the power may exercise his owm discre- tion in selecting the persons to 1)6 benefited by the power. 72Bartels v. Froehlich (Kv.), 16 St. 1; Carney v. Byron, 19 R. I. S. W. 358. * 283; 36 Atl. 5. 73Coates V. L. & N. Ry. Co. 77 Crane v. Bolles, 49 N. J. Eq. (Ky.), 17 S. W. 564; 13 Ky. L. R. 373. 557. "« Piersol v. Roop, 56 N. J. Eq. 74 Poole V. Anderson. 80 Md. 739. 454; Porterfield v. Porterficld, 85 . Contra in Marshall v. Wheeler, Md. 663; McDonald v. O'Hara, 144 7 Mack. 414, it was held a power N. • Y. 566 ; Gordon v. Gordon to trustee to sell with consent of (Tcnn. Ch. App.). 46 S. W. 357. testator's father, who was to join 7r. Goebel v. Thieme. 85 Wis. 286. in the deed, could be exercised af- 76 Hackett v. Milnor, 156 Pa. ter the death of the father. 834 LAW OF WILLS. The class from which they are to be selected is generally, how- ever, indicated by testator. In such case the members of the class can not assert any interest in the property covered by the power unless the donee of the power exercises such power.'^'^ A power to devise may be mandatory, in which case it will be held to create an interest in the beneficiary of the power, which equity will protect even if the donee of the power does not exercise it.^'^ If the power of appointment is not exer- cised, and the testator's intention is clearly that the benefi- ciaries named shall receive the property, it is to be divided equally among them.^^ §695. Power of sale g^ven to life tenants. A power of sale of the remainder may be given to one to whom a life estate in the property, covered by the power, is devised.**^ This power may be given expressly.^^ Such a power may also be implied from a gift to one for life, and a gift over of the unexpended portion at the death of the life 79 Drake v. Drake, 134 N. Y. 220; 17 L. R. A. 664 (a power of appointment to all, or any, or either of the testator's sisters, or to all, or any, or either of the issue of such sisters was held to give the donee of the power a right of ap- pointment either to the sisters or to their issue, in his discretion) ; Boyle V. Boyle, 152 Pa. St. 108 (a power to testator's wife, "any remainder at her decease to be disposed of by her as she may think just and right among my children," is held to give the wife the power of exclud- ing one of testator's children) ; Hillen v. Iselin, 144 N. Y. 365. 80 Smith V. Floyd, 140 N. Y. 337, affirming 71 Hun, 56 (a life estate to A "with the right and privilege of disposing of the same by will or de^^se to his children if any" was held mandatory) ; so Ad- ams v. Mason, 85 Ala. 452. 81 In re Jack (1899), 1 Ch. 374, 68 L. J. Ch. N. S. 188. (In this case the donee of the power did not exercise it as to part of the prop- erty, but expressed a desire that it should go to two of the three children. It was held, however, that it should be equally . divided among the three.) 82 See Sec. 575, et seq. 83 Security Co. v. Pratt, 65 Conn. 161 (a power to life tenant to sell any part of "said life es- tate" and use or invest the pro- ceeds, was held to give the power to pass in fee) ; Larsen v. John- son, 78 Wis. 300 (a devise to A for life with "power to dispose of the same if it should be necessary for her support and comfort" was held to give power to dispose of the fee). LAW OF WILLS. 835 tenant to another.^'* So a power of sale may be implied from a gift for life with general power to possess and enjoy the property as if it belonged to the life tenant, especially where the gift is for a specific pnrpose, snch as the support of the life tenant or the education of children, where the prin- cipal may not be sufficient.*'^ This power may also be implied from the context of the will.^^ ' Power given to life tenant to dispose of property for his own use must be clearly given. Thus a gift of real and per- sonal property to one for life, to have full control of the same, and after her death "what is left" to go to beneficiaries named, was held to convey only a life estate without power to sell, the expression "what is left" being used only to show that the life tenant was not to be charged witli necessary loss of perishable personal property.*^ A power clearly given to a life tenant, who is also an ex- ecutor, may be exercised by such life tenant without quali- fying as executor.^^ And when such a power is exercised, the life tenant does not have to account for the proceeds as exec- utor.*^ 84 Attorney General v. Hall, Fitz, Davis v. Kirksey, 14 Tex. Cir. 314; Howard v. Carusi, 109 U. S. App. 380; King v. Bock, 80 Tex. 72.5; Gaffield v. Plumber, 175 111. 156. 521; Pfingst v. Dolfinger (Ky.), ^^ Qffutt v. Divine (Ky.) ,( 1899), 20 S. W. 534; 14 Ky. L. R. 489; 49 S. W. 1065 (an extreme case Ide V. Ide, 5 Mass. 500; Burbank in which a provision that the cap- V. Whitney, 24 Pick. 146; Hale v. ital should not be diminished was Marsh, 100 Mass. 468 ; Bowen v. ignored in order to carry out tes- Dean, 110 Mass. 438; Ladd v. tator's, general intention to sup- Chase, 155 Mass. 417 (a devise to a port his daughter and her chil- widow for her use forever, with a dren, and by reason of deprecia- devise over of the unexpended por- tion of the property the income tion upon her death to another. was entirely insufficient for such was held to give a life estate with purpose). power of sale); Bramell v. Cole, 87 Bramell v. Cole, 136 Mo. 201. 136 Mo. 201; Pierce v. Simmons, ss Smith v. Beardsley, 51 Fed. 17 R. I. 545. 122. 85 Gold's Estate, 133 Pa. St. 495; 89 Meicur's Estate, 151 Pa. St. Martin's Estate, 160 Pa. St. 32; 49. 836 LAW OF WILLS. §696. Exercise of power of sale by life tenants. Where a power of sale is given to a life tenant to sell for a specified purpose, the vendee, if he buys in good faith, takes an absolute title which can not be set aside upon the applica- tion of the remainderman.^'' And the bona fide purchaser takes a title, the validity of which is not dependent upon ac- tual necessity for the sale.^^ Whether the power of sale for purpose of support, when used for that purpose alone and in good faith, is subject to control, is a matter in which the courts seem somewhat at variance. It has been held that the life tenant is the only person to de- termine the necessity of the sale.^^ On the other hand, it has been held that where the life tenants have been authorized to use as much of the principal as is necessary for their comfort, the amount to be taken by them is under the control of the court considering their situation, condition in life, and amount of property available.^^ Whether the life tenant who has power to sell the principal and dispose of the proceeds for her support is authorized to convey the property, covered by a power, in consideration of services to be rendered to her by the grantee, is another question upon which the courts are at variance.^^ It is, however, well settled that a power to resort to the. prin- cipal, where necessary for the support of the life tenant, caa 90 Clark v. Clark, 172 111. 355; for life and a payment of funeral Harp V. Wallin, 93 Ga. 811; expenses was valid. So in Gadd Hardy v. Sanborn, 172 Mass. 405 v. Stoner, — Mich. — (1897), (especially where realty was sold 71 N. W. 1111, a conveyance by at appraised value). the widow in consideration of an 91 Griffin v. Griffin, 141 111. 373; agreement to support her for life Doran v. Piper, 164 Pa. St. 430. was held not to convey the fee, 92 Paxton V. Bond (Ky.), 15 S. but to give the grantee a lien on W. 875; 12 Ky. L. R. 949. the land for the value of the sup- 93 Peckham v. Lego, 57 Conn. port furnished less the value of 553; 7 L. R. A. 419. the use and occupation of the iand. 94 In Barnard v. Stone, 159 Mass. The power in this case was to the 224, it was held that a conveyance widow to convey the fee, but to of the entire property of the life have a Hfe estate only in the pro- tenant in consideration of support ceeds. 887 X,AW OF WILLS. not be exercised for the purpose of making presents, and a con- veyance for that purpose is unauthorized.''^ Where A, tlie o^vner of a life estate and donee of a power, transferred the realty to B for a purpose on its face authorize , but not so in reality, and B mortgaged the and to C, a mo gagee in good faith, it was held that V. could e.Jorce the mo t- ga^e upon the whole of the realty as far as that part of the Lney loaned which was applied to the support of the widow and payment of her debts, while as to the rest of the money which B retained, it could be enforced on that part of the realty descending to B."" ,, • i ,„ „=. And where the life tenant was expressly authorized to us„ the principal "for her necessary and comfortable support and for charitable and benevolent purposes and contributions for worthy obiects," it was held that that did not authorize her to make" gifts of the principal in return for kindnesses done The exercise of a power of sale by a life tenant is held to ter- minate the life estate and convey the property free rom the liens of any judgments obtained against the ife tenant. The power is not exercised by an appointment by a wiU^ winch is made conditional that the death of the testatrix during co.-cr^ ture, where such testatrix outlived her linsband, and the w. is not republished subsequently to the death of such husband. • A power t» a life tenant to convey a certain number of sep- arate tracts of land in fee-simple, is not exhausted by the cmi- vevance of a part of such tracts, it not being necessary that the donee of the power should select or convey all of the tracts at one time.^'^^ §697. Rights of creditors of the donee of a power. ' Where authority is given to nse the principal. for the sup- port of the beneliciary, if the income is insufficient, the power onLehnara v. Specht, 180 111. -Hose v. Hatch 125 N. Y. 427, 208; Griffin v. Griffin, 141 111. 373; affirnung 55 Hun. 45. Greene v. Smith, 17 R. I- 28. ^^ ^ re Cuno, L. R. 43 Ch. D. 96 Griffin V. Griffin, 141 HI. 373. 12. ^ ^ ,01 ill -^41 . • Ti^v,n« Mi^- 100 Hunt V. Hawes, 181 HI. -M.J. 97 Park V. American Home Mis- sionary Society, 62 Vt. 19. 838 LAW OF WILLS. may be exercised after the support is furnished as well as before.^ ^^ So where the life tenant, in pursuance of a power of sale of the principal for her maintenance, had directed such a sale and died before completing it, it was held that one who had furnished her with support upon credit had a right to have such property sold for the payment of his claim.^°^ But where ',the donee of the power has not ordered such sale in her life- time, a sale can not he had at the instance of her creditors, the power being purely a personal one,^^^ In the absence of statute, the donee of a power can not charge the estate with his debts,^"^ and a judicial sale of the life tenant's property passes no more than his life interest.^ ^^ By statute in some jurisdictions, a donee of an absolute power of appointment may exercise such power so as to pay his debts.io^ §698. Necessity of reference to power. In the absence of statute it is well settled that in order to constitute a valid exercise of power, the instrument by which it was to be exercised must refer specifically to the power, or must, from the nature of its provisions, show testator's inten- tion to exercise the power conferred.^ *^'^ The donee of the j^ower, however, may exercise the power without referring in express terms to the instrument by which it is created.^ "^^ Where the instrument exercising such power 101 Smith V. Greeley, 67 N. H. band's debts where the debt is ac- 377; Luckenbach's Estate, 175 Pa. curately aescribed.) St. 484. 107 Shore v. Shore, 21 Ont. 54; 102 Luckenbach's Estate, 175 Pa. Lee v. Simpson, 134 U. S. 572; Har- St. 484. vard College v. Balch, 171 111. 103 Ryan V. Mahan, 20 E. I. 417. 275 (general residuary clause); 104 Roundtree v. Dickson, 105 N. South v. South, 91 Ind. 221; 46 C. 350. Am. Rep. 501; Cotting v. De Sar- 105 Ritchie V. Ritchie, 171 Mass. tiges, 17 R. I. 668. 504. losCoxen v. Rowland (1894), 1 106 In re Hodgs'on (1899), 1 Ch. 406 (a devise of all property Ch. 666; 68 L. J. Ch. N. S. 313. which testatrix was competent to (Undeir* such statute a married dispose of by any power was said woman may exercise such power of to be a good exercise of a power appointment so as to pay her hus- of appointment). O'JQ LAW OF WILLS. shows that the donee of the power descrfbes the property as "my property," or in some other way showing an assump- tion of absolute ownership, this does not prevent the instrument from executing the power.^*^*^ This rule in actual practice often defeated the exercise of the power. . A donee of a power, especially if he has a life estate in the property covered by the power, is very likely to think and speak of the property as his omi, and to attempt to exercise the power by giving the property without any specific description and without any reference to the power to be ex- ercised. In order to prevent this failure of intention, stat- utes have been passed in some states providing that a devise or bequest shall extend to property over which testator has a power of appointment, unless a contrary intention shall ap- pear in the will. Under such statute a general gift of all the property of testator, or his entire estate, or any similar form of words, will pass property over which he has a power of appointment.^ ^'^ So under such statutes a general residuary clause will be a valid exercise of a power of appointment^^! And a power looBullerdick v. Wright, US Life Ins., etc., Co v Livingston^ Ind. 477, citing Powell v. Roake, 2 133 N. Y. 125; K.mball v. New Bin. 497; Madison v. Andrew, 1 Hampshire Bible Society, 65 N. H. Ves^ S. R. 57; Blaggs v. Miles, 1 139; Forsythe v. ForsyUie, 08 Pa. Story, 427; Aniory v. Meredith, 7 St. 129; Di Ion v. Faloon, lo8 Pa. Allen, 397; White v. Hicks, 33 St. ^68 ;_ Weir v. Smithy 62 Tex. N Y 383; Andrews v. Brumfield, 1; Maehir v. Funk, 90 Va. 264. 32 Miss. 107; Cooper v. Haines, "It do^s not appear that she was 70 Md 282; Lee v Simpson. 134 so familiar with legal views of her IT S ■57-- White V. Hicks, 33 N. husband's will as to understand y' 383: Keefer v. Schwartz, 47 Pa. the difference between a fee and ^: :^ her rights of holding, using and ' -rr MQOi^ -^ Ch managing property as she saw fit 110 /n re Harmon 1894), 6 «^ii. nuuui^ "" ,.1 , j •;!•„„ „ri,ri 607; compare /„ re Huddleston duHng ho,- he and a. -84. 840 LAW OF WILLS. has been held to be exercised validly by a will made by the donee of the power before the power was given.^^^ In other states statutes of narrower types are in force. Thus, it is in some states provided that a conveyance of prop- erty, which grantor Vv^ould liave no right to convey but by power, shall be deemed a valid exercise of the power, even though there was no reference to such power in the convey- ance.^ ^^ Under such a statute, where a grantor has both an interest and a power in the property, it is held that a convey- ance, or a devise without reference to the power, will pass only the interest of the grantor, and will not be deemed a valid exercise of the power.-^^'* 112 Burkett v. Whittemore, 36 S. n* Mutual Life Insurance Co. v. C. 428. Shipman, 119 N. Y. 324; Lardner 113 Hutton V. Benkard, 92 N. Y. v. Williams, 98 Wis. 514. 295. LAW OF WILLS. 841 CHAPTER XXXII. CONVERSION. §699. Conversion in general. It is a doctrine well recognized in equity that under proper circumstances an agreement or direction to change property from one legal class to another, as from real to personal or personal to real, will have the effect in equity of changing the legal character of such property at once before it is in fact changed. This doctrine rests upon the maxim that equity looks ujion that as done which ought to he done, and is kno^\^l as the doctrine of Conversion. The forms which conversion assumes, where the direction to convert is found in a will, arc the only ones to he consid- ered here. In determining questions of conversion by will, the fundamental principle is that conversion is effected only by a clear and unequivocal direction to convert. Equity looks upon that as done which is clearly required to be done, not that which may be clone. Where provisions of the will with reference to the power of sale are conflicting, the property is ordinarily treated as not converted.^ So an alternative direction to convert, as where the will provides that a fund should be used to pur- chase realty, or else it should be put out at interest, does not effect a conversion.^ 1 Beadle v Beadle, 40 Fed. 31.5; 2 Becker's Estate, 150 Pa. St. Forsyth v. Forsyth, 46 N. J. Eq. .524. 400. 842 LAW OF WILLS. §700. Power of sale without discretion. This doctrine finds freqnent application in the law of wills. Thus a positive and unqualified direction to the executors or trustees to sell realty operates as a conversion of such realty; and for purposes of distribution as indicated by the will, the real property or its proceeds will be treated as personal prop- ,erty.3 §701. Power of sale with limited discretion. Where the direction to sell is absolute, the fact that some discretion is given as to time and place does not prevent the direction to sell from working a conversion.'* ISTor does dis- cretionary power to pay outright to beneficiaries or to hold in trust prevent the direction to sell from' working a conver- sion.^ §702. Discretionary power of sale. A direction to change the class of property must, however, be both absolute and effective in order to work a conversion.^ A power of sale, which is not peremptory and absolute, but 3 Tyrrell v. Painton (1895), 1 Y. 126; 18 L. R. A. 458; McDon- Q. B. 202; 64 L. J., P. D. A., N. S., aid v. O'Harra, 144 N. Y. 566; 33; In re Richerson (1892), 1 Collier v. Grimesey, 36 O. S. 17; Ch. 379; Allen v. Watts, 98 Ala. Helfrich v. Helfrich, 25 O. L. J. 384; Duffield v. Pike, 71 Conn. 313 : Fahnestock v. Fahnestock, 1.52 521; Gross v. Sheeler (Del.), 7 Pa. St. 56: Thomnian's Estate, 161 Houst. 280; Ebey v. Adams, 135 Pa. St. 444; Klotz's Estate, 190 111. 80; 10 L. R. A. 162; Creerar Pa. St. 152: Newport Water Works V. Williams, 145 111. 625, affirming v. Sisson. 18 R. I. 411: In re Hol- 44 111. App. 492; Glover v. Con- der, 21 R. I. 48: 21 R. I. (Part 1), dell, 163 111. 566; Abell v. Abell, 49: Brown v. Miller, 45 W. Va. 75 Md. 44; Johnson v. Conover, 211; McHugh v. McCole, 97 Wis. 54 N. J. Eq. 333; Roy v. Monroe, 166; 40 L. R. A. 724. 47 N. J. Eq. 356; Jones v. Jones, * Underwood v. Curtis, 127 N. Y. 46 N. J. Eq. 554, affirming Dut- 523; Crane v. Bolles, 49 N. J. Eq. ton V. Pugh, 45 N. J. Eq. 426; 373: Bell v. Bell. 25 S. Car. 149. Fisher v. Banta, 66 N. Y. 468 : ^ Marshall's Estate, 147 Pa. St. Fraser v. United Presbyterian As- 77. soc, 124 N. Y. 479, modifying 58 o Goodier v. Edmunds (1893), 3 Hun, 30; Hope v. Brewer, 136 N. Ch. 455; see Sec. 699. LAW OF WILLS. °^^ may be exercised entirely at the discretion of the executors or trustees, does not, of itself, work a conversion.^ So a power to sell land with the consent of certain heirs does not effect a conversion.^ A discretionary power of conversion does not affect a con- version unless actually exercised. Title to realty to be sold under such power descends, therefore, to the heir at law until the sale.^ The heir at law may, accordingly, sue to recover possession of the property.^^ A judgment against the legatees may become a lien upon such property,^ ^ and a mortgage given by the beneficiary is a lien upon his interest in such property, and the mortgagee will be protected upon the sale of the property.^ ^ Where testator by will directed that the executors sell cer- tain real estate to A, at a fair price to be fixed by certain per- sons to be agreed upon by A and the executors, such a^ provi- sion was held to work a conversion where the sale is in fact made.^^ §703. Implied power of sale. A conversion may be effected by an implied power of sale as well as an express one. Thus a direction to executor to loan out at interest a certain amount of testator's property, which consisted of both personalty and realty, was held to 7 Mills V. Harris, 104 N. C. 626: 647; Mills v. Harris, 104 N C. Clift V Aloses, 116 N. Y. 144; 626,; Guarantee Trust and Safe Sheridan v. Sheridan, 136 Pa. St. Deposit Company v. Maxwell, o3 14 (In Pvott's Estate, 160 Pa. N. .T. Eq. 194; 30 Atl. 339 ; Ble.ght St 441, testator devised realty to v. Bank, 10 Pa. St. 131 ; Domimck his wife with a power to her to v. Michael, 4 Sand. (N. 1), 3/4; sell if she thought advantagemis. Pratt v. Taliaferro, 3 Leigh. (\a.) This was held not to affect a con- 419. version until the sale was made.) i" Estep v. Armstrong, 91 Cal. sGreenough v. Small, 137 Pa. St. 659. 128; Sill V. Blaney, 159 Pa. St. ^ Eneberg v. Carter, 98 Mo. 264-! Irvin v. Patchen, 164 Pa. St. 647. 12 Lawton v. Lawton, 5 U. JN- 9 Walters v. Maunde, 19 Ves. S. 441 : 7 O. Dec. 493. 424; Estep v. Armstrono-. 91 Cal. i--^ Benbow v. Moore, 114 N. C. 659- Eneberg v. Carter, 98 Mo. 263. 844 LAW OF WILLS. work a conversion in equity, since the provisions of the will could be complied with only by converting the realty into per- sonalty.-'^ §704. What sales do not effect a conversion. Where testator's real property is sold, not by virtue of anv direction in his will, but in order to pay his debts, under pro- ceeding prescribed by law for that purpose,^ ^ or upon fore- closure proceedings,^^ such a sale does not alter the legal character of the property. And a sale made by trustees, en- tirely for the convenient management of the trust and not un- der a peremptory direction of the will, does not change the legal title of the proceeds of the will as far as distribution is concerned.^ ^ An oral unenforcible contract made by the executors to sell real estate, over which they have discretionary power of sale, does not amount to a conversion. ^^ §705. Double conversion. A double conversion is also recognized by courts of equity. Thus, where testator directs that certain real estate be sold and that the proceeds be used in purchasing other real estate, the property is treated as realty, even at the time when it exists in the form of money.-' ^ The doctrine of conversion is intended as a means of carry- ing out the intention of testator. Accordingly, if in his will he makes it clear that, although the property is to be con- verted, he desires it to pass in its converted form as if it were still in its original form, full effect will be given to this in- tention.^^ 14 Davenport v. Kirkland, 156 is Mills v. Harris, 104 N. C. 111. 169; see Sec. 689. 626. 15 Pence v. Pence, 11 O. St. 290. 1 9 Ford v. Ford, 80 Mich. 42. 16 7n re Jamieson, 18 E. I. 385. 20/^ re Bingham, 127 N. Y. "Hovey v. Dary. 154 Mass. 7; 296. llhode Island Hospital Trust Com- pany V. Harris, 20 R. I. 408. 845 LAW OF WILLS. Thus a devise of the residuum to the "heirs and next of km in the same proportion" as the property would have been dis- tributed had testator died intestate, together with a power of sale of such property, the residuum to he distributed m cash was held to show testator's intention that the proeeeds of realty should pass as realty, sinee he used the word "heirs' with reference tliereto.^^ §706. Conversion of personalty into realty. Personal property may also be converted into realty, as by an absolnte direction to purchase land^with a certain fund or witb the proceeds of the personalty.^^ §707. Effect of failure of purpose upon conversion.— Re-con- version. Where testator, in his will, directs a conversion of his prop- erty for certain specific purposes, the property will not be re- garded in equity as converted, any further than necessary for carrying such purposes into effect, and a failin-e of such pur- poses p^-events a conversion- And, unless the specific pur- le is assi^ied in the will, it will be presumed that the power of sale is g^ven in order to carry into execution the remaining provisions of the will, and if Aose remaining provisions fail, the nronertv is not converted. In c se rf a total failure of conversion, the property to be coi»" Id descends according to its original and "'l--*;!;- acter. unaffected by conversion- But - --;7™;f- ^^^^ directed by will for the purpose of paymg t-'^* ; /*' ; the balance t« be distributed as personalty, in a la.ge pa.t .. ,n ,. Bin,ha™, 127 N. Y. 206. v. McCo.e, 07 Wis. 106; 40 L. R. 23 Rov V. Monroe, 47 N. J. Eq. A. 724. Smithson 1 Bro. 356; Holmes v. Pickett, 51 S. C. ^^ ^^^ ^^^^ ^^^^^ ^ ^o\.\A^^, 53 271- ^ T Ea 137; Luflfberry's Appeal, 23 Ackroyd v. Smithson, 1 Bro. C. N. ^-J^' [^'^ C 503- Roy v. Monroe, 47 N. -T. 125 Pa. St 513. Kj. ouo, rvuj^ „,.„. 1.0- 05 Apk-rovd V. Smithson, 1 i^io. Eq. 356; Read v. Wxlhams. 12o "^ ^f;7^3 . Luffberry's Estate, N. Y. 560: Gallagher v. Rowan, Ch. ^as. olM 86 Va. 823; Fifield v. Van Wyck, 125 Pa. St. 513. 94 Va. 557 : 27 S. E. 446 ; McHugli 846 LAW OF WILLS. as intestate property, it was held that the creditors and leg- atees could not effect a reconversion by releasing their debts and legacies.^*" Where there is a partial and not a total failure of the pur- poses for which the power of sale was conferred, the property must be treated as converted, and must descend as property of the class to which it was, by will, to be couverted.^"^ Where a power of sale fails of execution, the property to be converted passes to the beneficiary in its unconverted form, if the gift itself is valid.^^ So by agreement between the beneficiaries, the property to be converted may be taken in its unconverted form.^^ §708. Effect of conversion. The effect of conversion of property is to impress the prop- erty converted with the character of the property into which it is to be converted, even before a change in form. Thus, where there is a conversion of realty, the realty to be converted will be distributed as if it were personalty.^^ And where the Rule in Shelley's Case applies to the devises of realty, but does not apply to bequests of personalty, conversion may prevent the application of the rule.^^ And in jurisdictions where bequests of personalty can be made at an earlier age than devises of realty, it has been held where a testator directs that his realty be converted into personalty, and the proceeds given to certain designated individuals, that one of these individ- uals can dispose of his interest thus given as soon as he is old enough to dispose of personal property.^^ 26 Adam's Estate, 148 Pa. St. 29 Howell v. Mellen, 169 Pa. St. 394, on rehearing, 148 Pa. St. 399 139; see Sec. 718. (accordingly the realty covered by so /^ re Richerson (1892), 1 Ch. the direction to convert was added 379 ; Hand v. Marcy, 28 N. J. Eq. to the residuum of personalty). 59; Ingersoll's Estate, 167 Pa. St. 2-! In re Pucherson (1892), 1 Ch. 536; Lackey's Estate, 149 Pa. St 379. 7 ; Newport Water Works v. Sis- 28 /n re Bingham, 127 N. Y. son, 18 R. I. 411. 296; Parker v. Linden, 113 N. Y. si Gross v. Sheeler, 7 Houst. 28; Chamberlain v. Taylor, 105 (Del.), 280. N. Y. 185; Gourley v. Campbell, 32 Allen v. Watts, 98 Ala. 384. 66 N. Y. 169. LAW OF WILLS. ^47 §709. Time at which conversion takes effect. Where a will contains a direction to convert, in terms so possitive as to eifect a conversion, and no time is fixed at which such conversion shall take effect, the general rule is that the property is to be regarded as converted from the death of testator, and not from the time when the property is actually sold.^^ But where conversion is discretionary with the trustees or donees of the power of sale, no conversion takes place in law until the character of the property is changed iu fact.^-* asEbey v. Adams, 135 111. 80; — N. J. Eq. — ; 24 Atl. 365. 10 L. R. A. 162; Snover v. Squire, 34 See Sec. 702. 348 LAW OF WILLS. CHAPTER XXXIII ELECTION. §710. Election in general. There is a broad principle originating in equity and running through many different subjects of law to the effect that one upon whom inconsistent rights are conferred has his choice as to which he will take, but can not have both. This right to choose between these inconsistent rights is known as elec- tion. The abandonment of the other right when the one is elected is known as a waiver. This general principle of the necessity of election between inconsistent rights, finds manv applications in the law of wills. In many different forms testators attempt to dispose of property which belongs, either in whole or in part, to others. Where nothing is given in place of such property rights thus defeated, the doctrine of election does not, strictly speaking, apply, there not being anv inconsistent rights between which the own^ier must elect.^ But iHall V. Smith, 103 Mo. 289 : means a choice between two courses .Tacob V. Jacob, 78 Law T. 825, af- of action, acquiescence by the wid- firming 78 Law T. 451) ; Sumerel V. ow in her husband's disposition Sumerel, 34 S. Car. 85; Cook v. of his property or disregard of it Couch, 100 Mo. 29; Burgess v. and assertion of the rights the law Bowles, 99 Mo. 543; Bennett v. gives her. There is no third Harper, 36 W. Va. 546. course." Cunningham's Estate, 137 "Election in the sense that ap- Pa. St. 621. plies to the present contention. LAW OF WILLS. 849 where the will gives some right to the person whose property interest is sought to be defeated, a case for election arises.^ Wherever the rights conferred are not inconsistent, no case for election arises. Thus a gift of the income of a fund to testator's widow, together with the right to use any part of the principal u])on three months' notice, does not require the widow to elect between her right to use the income and the principal. But after using the income as long as she thinks necessary, she may on demand have the principal paid over.^ The intention of testator must ordinarily be clear to put the devise to his election.'* Thus, where the property devised did not exceed that given by the law, no election is necessary in the absence of statute.^ In determining whether an election is necessary or not, the test is, is the property right given by law so inconsistent with that devised by will that both can not stand.*' The right of election, however, is a unit, unless the will specifically provides otherwise; that is, the person having the 2 Clark V. Clark, 1.32 Ind. 25; 4 Jacob v. Jacob (C. A.), 78 Smith's Estate, GO Mich. 130; Law T. 825 (affirming 78 Law T. Haack v. Weiken, 118 N. Y. 67; 451). Melick V. Darling, 11 Ohio, 343; s Burgess v. Bowles, 99 Mo. 543. White V. Brocaw, 14 O. S. 339; (In this case testator devised to Huston V. Cone, 24 O. S. 11 ; Cun- his wife as long as she remained ningham's Estate, 137 Pa. St. 621. his widow certain property to which 3 Smith V. Jackman, 115 Mich. she was entitled under the homc- 192 (of course upon payment of stead law. She occupied the prop- the principal, her right to the in- erty and remarried. It was held come ceased. The doctrine stated that no case for election existed, in the text is worked out in de- and that she could still claim her tail in the application of the gen- rights under the law). eral principle of election of par- s Hair v. Goldsmith, 22 S. Car. ticular rights which follows in 566; Callaham v. Robinson, 20 S. this chapter): Cook v. Couch, 100 Car. 249; Sumerel v. Sumerel, 34 Mo. 29 (a provision that testator's S. Car. 85. An express provision property shall go to his wife and that a bequest to testator's wife children, that his wife shall retain was not intended to be in lieu of her lawful dower and may will her dower was held ineffective where portion as she pleases, gives her her testator had disposed of all his dower and an equal share in the property by will. Parker v. Park- fee with the children). er, 13 O. S. 95. 860 LAW OF WJLLS. right of election may elect either of the inconsistent rights, but can not take both nor can he take a part of eachJ The doctrine of election and waiver can apply only to rights given for the sole benefit of the person who seeks to make the election. If they are given for any other purpose they can not be waived.^ These principles, in so far as they affect the law of wills, are better illustrated by a discussion of the types of cases in which they are applied than by discussion of them in the abstract. §711. Election between dower and devise under the will, where testator intends devise to be in lieu of dower. The surviving husband or wife of a decedent is given by law certain rights in the real and personal property of such decedent. The right of dower at common law was a right to a surviving widow to a life interest in a third part of the real estate which her husband had o^vned by such title that her children by him might have inherited.^ Curtesy was the right of her husband to a life estate in the whole of his wife's real property which she owned by such title that a child bom to that marriage might have inherited it, provided that a child had been born alive capable of inheriting the property.^ *^ These rights have been greatly modified by modern statute law. The nature and extent of these rights belong rather to real property than to the law of will's, and will not be considered here any further than it may be neces- sary to explain the application of the principles of election to these cases. Where it is clear, either from specific provisions in a will, or from the will as a whole, that testator intends a provision for the surviving spouse to be in lieu of the curtesy or dower ■ T Hainer v. Iowa Legion of Hon- 621; Eichelberger's Estate, 135 Pa. or, 78 lo. 245; Welch v. Adams, St. 160. 152 Mass. 74; 9 L. R. A. 244: § Leonard v. Haworth, 171 Mass. Bird V. Hawkins (N. J.). 42 Atl. 496. 588; Haack v. Weicken, 118 N. Y. » See Sec. 23 and Sec. 137. 67; Jones v. Lloyd. 33 O. S. 572; lo See Sec. 23 and Sec. 137. Cunningham's Estate, 137 Pa. St. LAW OF WILLS. 861 rights of such surviving spouse full affect is given to such intention, and the surviving spouse must then elect between the two provisions.^ ^ The intention to put the surviving spouse to an election between the dower interest and the provisions of the will may be by using express language, such as "in lieu of dower." ^^ ISTecessity of election may also be created by necessary im- plication from the context of the will, as where it is impos- sible to carry the provisions of the will into effect if both the property devised by the will and the dower interest are given to the surviving spouse. Such a will makes the case which exists wherever the doctrine of election becomes material; one, namely in which testator makes a gift to A, and also gives some right of A's to B, in which case A must elect whether to take under the will and allow B to take A's prop- erty or whether to repudiate the will and stand upon his own rights. -^^ Thus where all the real estate, except that devised to the widow, is specifically disposed of by the Avill in such way as to show testator's intention that it should pass free from her dower, it is sufficient to put her to her election.^^ §712. Common law rule that devise was presumed to be in ad- dition to dower. Where testator does not in his will either expressly or im- pliedly indicate whether the devise is given in addition to 11 Bennett v. Packer, 70 Conn. is Bennett v. Packer, 70 Conn. 357; Clark v. Clark, 132 Ind. 25; 357; Clark v. Clark, 132 Ind. 25; Von Phul V. Hay, 122 Mo. 300; Hovey v. Hovey, 61 N. H. 599; Hovey v. Hovey, 61 N. H. 599 ; Cooper v. Cooper, 56 N. J. Eq. 48 : Cooper V. Cooper, 56 N. J. Eq. 48 ; Helme v. Strater, 52 N. J. Eq. Helme v. Strater, 52 N. J. Eq. 591 ; 591 ; Griggs v. Veghte, 47 N. J. Griggs V. Veghte, 47 N. J. Eq, Eq. 179; Cunningham's Estate, 137 179; Bannister v. Bannister, 37 S. Pa. St. 621; Bannister v. Bannis- C. 529; Stokes v. Norwood, 44 S ter, 37 S. Car. 529; Callaham v. C. 424. Robinson, 30 S. Car. 249. 12 Von Phul V. Hay, 122 Mo. i-* Cooper v. Cooper, 56 N. J. Eq. 300 ; Brown v. Brown 55 N. H. 48 ; Bannister v. Bannister, 37 S. C. 106; Stokes v. Norwood, 44 S. C. 529. 424. 852 LAW OF WILLS. dower or in lieu of dower, it is necessarily an arbitrary rule of law that determines which, of these two possible intentions it should be assumed that testator entertained. At the com- mon law it is held that where testator's intention was not ap- parent upon the will, the devise would be 23resimied to be in addition to dower.^^ The fact that testator in his will declared his intention to dispose of his entire estate does not prevent the application of this common law rule where the assignment of dower will not interfere with any provision of the will;^® nor in a juris- diction where dower is an estate in fee-simple does a de- vise to ' the widow for life, of testator's entire realty, show his intention to deprive her of the remainder in fee of one third of such realty.-^ '^ §713. Statutory rule that devise is presumed to be in lieu of dower. By statute this common law rule has been abridged in many states, and the opposite rule established, to the effect that a provision in a will for the benefit of the surviving sjDOUse shall be presumed to be in lieu of dower or curtesy rights, un- less it appears to be testator's intention that such provision shall be in addition to such rights.^ ^ Under such a statute a devise to testator's widow is pre- sumed to be in lieu of dower in any real estate which she might 15 Parker v. Hayden, 84 lo. 493; S. C. 428; Hatch's Estate, 62 Vt. Herr v. Herr, 90 lo. 538; Richards 300. V. Richards, 90 lo. 606; Bare v. is Hatch's Estate, 62 Vt. 300. Bare, 91 lo. 143; Sutherland v. it Proctor's Estate, 103 lo. 232. Sutherland, 102 lo. 535; Proctor's " Stunz v. Stunz, 131 111. 210 Estate, 103 lo. 232; Hunter v. Stone v. Vandermark, 146 HI. 312 Hunter, 95 lo. 728; 64 N". W. 656; Warren v. Warren, 148 111. 641 Watson V. Watson, 98 lo. 132; 67 Like v. Cooper, 132 Ind. 391 N. W. 83; Frankes v. Weigand, Huhlein v. Huhlein, 87 Ky. 247 66 N. Y. 918; McGowan v. Bald- Kelly v. Ball (Ky.), 1892, 19 S win, 46 Minn. 477; Cook v. Couch, W. 581; Luigart v. Ripley, 19 O. S 100 Mo. 29; Hiers v. Gooding, 43 24; Boiling v. Boiling, 88 Va. 524 LAW OF WILLS. O^*^ claim, including real estate sold testator previous to his death, by deed in which the wife did not join.^^ Since the statutes requiring written election are strictly construed, the statute may not require election if the Avidow seeks to claim dower in land conveyed by her husband before his death. Thus a statute requiring election between a de- vise by will and dower in land of which the husband "died seized," has been held not to apply to dower rights in land conveyed by the husband before his death, in which the Avidow did not release her dower right.^^ In Virginia this rule does not apply to wills executed by testator domiciled in other jurisdictions. Accordingly, where, by the law of the jurisdictions of the domicile, a gift to a widow would prima facie be in addition to her dower, it will not bar her dower in Virginia.^! And a devise of the use of testator's real property to his widow until his son reaches majority, at which time testa- tor's property is to be distributed, Imt in case testator's widow should remarry before such distribution, the executor of the estate Avas to collect the rents from the real estate and pay the widow only her doAver interest therein, shoAvs testator's inten- .tion to give to the widoAV, in addition to her doAver rights 'therein, the use of the real estate until her second marriage, or until the son came of age.^^ EA-en where this statute is in force a devise which neces- sarily includes doAver, as an absolute devise of all testator's 19 Sanders v. \Yallace, 118 Ala. property to testator's widow in 418 ; Haynie v. Dickens. 68 111. 2G7 ; lieu of all her rights in testator's Warren v. Warren, 148 111. 641; estate, and she elects to take under Fairchild V. Marshall, 42 Minn. the will, she is estopped from su- 14- Buffinton v. Fall River Na- ing to recover property conveyed tional Bank, 113 Mass. 246; Spald- away by her husband as being in ing V. Hershfield 15 Mont. 253; fraud of her rights. Cooke v. Fi- Nelson v. Brown, 144 N. Y. 384; delity Trust, etc.. Company (Ky.), Corry v. Lamb, 45 0. S. 203; Evans 47 S. W. 325: 20 Ky. L. Rep. 667. V Pierson, Rich. (S. Car.), 9. ^o Hall v. Smith. 103 Mo. 289. Contra, Borland v. Nichols, 12 21 Boiling v. Boiling, 88 Va. Pa. St. 38; 51 Am. Dec. 576; West- 524. brook T. Vanderburgh, 36 Midi 22 Kelly v. Ball (Ky.), (1892), 30. So where the will devised certain 19 S. W. 581. 854 LAW OF WILLS. realty to his wife for her life, is presumed to be in addition to dower.^^ If, however, the devise does not necessarily in- clude dower, as a devise of all realty to the wife during her widowhood, under the statute it is presumed to be in lieu of dower.^'* §714. Election between life insurance and gifts under the will. A testator frequently attempts by will to dispose of the proceeds of life insurance policies, payable to certain desig- nated beneficiaries, and not subject to his disposition by will. In such a case if testator makes some other provision by his will for the beneficiaries under the life insurance policy, a case for election is created, and the beneficiaries under the will have their choice between taking the life insurance and accepting the benefits of the will, and their election of either waives their right to the other.^^ But if the policy is pay- able to one not a beneficiary no case for elecwn arises. Thus, where the bequest was made to A, testator's grandson, and the policy was payable to B, testator's son, there was no neces- sity of election, even though B had died, since the policy was payable to B's administrator.^*^ Testator's intention to dis- pose of a policy which belongs to another must appear clearly upon the will and can not be inferred from ambiguous ex- pressions.^^ §715. Election between community rights and gifts by will. In some states a wife acquires a vested interest in a frac- tion, generally one-half, of all property accum.ulated by the 23 Baxter v. Bowyer, 19 O. S. 25 Hainer v. Iowa Legion of Hon- 490. Hence the widow who takes or, 78 la. 245 ; Van Schaack v. under the will is protected from Leonard, 164 111. 602; Hartwig v. the claims of her husband's credi- Schiefer, 147 Ind. 64. tors to the extent of her dower 26 Hartwig v. Schiefer, 147 Ind. right. 64 (modifying on rehearing 42 "N". 24Lingart v. Ripley, 19 O. S. E. 471). 24. If the widow takes under the 27 Charch v. Charch, 57 O. S. will and then remarries, her dower 561. is therefore lost. LAW OF WILLS. 855 husband subsequent to marriage. If the husband in his will attempts to dispose of the entire ownership of the property thus accumulated, and in his will makes some provision for his wife, a case of election is created, and the wife may take the property given to her by the will, or may stand upon her rights as part owner of the community property.^^ But where testator's will refers only to his own property rights, and does not attempt to dispose of those of the widow, no case for election is created.-^ §716, Election between homestead rights and gifts by will. Under modern statutes property rights in real estate used as a residence or homestead are recognized and enforced. Where a homestead is treated as a peculiar form of property, a surviving widow is put to an election between the provi- sions of the will and her homestead rights only where the pro- visions of the will will be defeated, in whole, or in part, by setting off the homestead to her.^'' Thus a devise to widow, of testator's real estate,^^ or of "one-half of all I own," ^^ does not put the widow to her election between her homestead rights and the provisions of the will, where the remaining provisions of the will can be carried into effect after giving the widow both.^^ JSTor does a devise to the widow of specific real 28 Smith's Estate, 108 Cal. 115 ; 3i Stokes v. Pillow, G4 Ark. p. Smith V. Butler, 85 Tex. 126; Mayo 1. V. Tudor, 74 Tex. 471; Chace v. 32 McGowan v. Baldwin, 4G Minn. Gregg, Tex. Civ. App. (1895), 31 477. S. W. 76. 33 (An apparent conflict which 29 Haby v. Fuos, — Tex. Civ. can possibly be reconciled has App. (1894), 25 S. W. 1121. arisen on this point. 30 Helm V. Legpjett, 66 Ark. 23; In Stokes v. Pillow, 64 Ark. 1. Stokes V. Pillow, 64 Ark. 1 ; Nich- a devise of all of testator's real ols V. Lancaster, — Ky. — , 1896 ; estate to his widow was held not 32 S. W. 676; McGowan v. Bald- to be inconsistent with her home- win, 46 Minn. 477 ; Schorr v. Et- stead right, so that by using the ling, 124 Mo. 42 ; Kouvalinka v. property she did not lose her home- Schlegel, 104 N. Y. 125; Wells v. stead rights, and might subsequently Congregational Church, 63 Vt. 116; assert them as aginst her husband's Nelson v. Kownslar, 79 Va. 468; creditors. Lewis V. Lichty, 3 Wash. 213. In Carr v. Carr, 177 111. 454, it 856 LAW or WILLS. property, and all of testator's mixed and personal property, followed by a provision that all the property of any kind which she may own at her death is to be equally divided be- tween her heirs and the heirs of testator, show such intention to exclude her from the homestead and after-acquired real estate to put her to an election between the two.^'* But where testator has so disposed of his property by will that some provision of the will will be defeated if the widow is given both the property devised to her by will and the homestead, the widow must elect between her rights under the homestead law and her rights under the will.^^ §717. Election between general property rights and devises by will. While election generally arises in cases where testator has attempted to deprive his surviving spouse of dower, cour- tesy, community interests, homestead rights, or other estates or interests in property, growing out of the marriage rela- tion, it may arise in any case where testator disposes of prop- erty by will to A, and gives A's property to B. Thus, a co- tenant in certain real estate by devising such real estate to some one other than his co-tenant, and then giving such co- tenant other property by will, puts co-tenant to an elec- tion between retaining his original interest in such real estate or accepting the benefits of the will.^^ Such title is, however, an equitable title merely, and under the recording statutes can not be asserted against a bona fide purchaser or mortgagee who relies upon the state of the legal title as the same appears on the record.^'^ was held that the widow's accept- G41 : Carr v. Carr, 177 111. 454; ance under the will gave her an Burgess v. Bowles, 99 Mo. 543 ; estate in property which differed Wells v. Congregational Church, from her prior homestead estate, 63 Vt. 116; Blackmer's Estate, 60 in that it was not terminated by Vt. 46. her abandoning it.) se Brossenne v. Schmitt, 91 Ky. The latter view was taken in 465 : Brown v. Brown, 42 Minn. Nichols V. Lancaster (Ky.) 1896, 270: Ide v. Clark. 5 Ohio C. C. 32 S. W. 676. 239: Huston v. Cone, 24 O. S. 11; 34 Schorr v. Etling. 124 Mo. 42. Hibbs v. Insurance Company, 40 35 Warren v. Warren, 148 111. O. S. 543. LAW OF WILLS. 857 So a devise of property to the husband of testatrix, together with a devise after his death of her estate and his to their heirs in equal shares, makes it necessary for the husband to elect whether to retain his own property or to take under the will.=^» Where a trustee bequeaths his own property to the cestm que trust, and bequeaths trust property to another, the cestui que trust must elect whether to assert the trust or take under the will.3^ A provision that designated persons may purchase from tes- tator's estate certain property at a designated price,^*^ or a provision that the devisee of certain property shall care and provide for another,^ ^ creates a case for election. But where the provisions of the will are not inconsistent with the assertion by the beneficiary of property interests in testator's estate, such beneficiary can not be put to an election between waiving his pre-existing interests in testator's estate and tak- ing under the will."*^ And the necessity for the election must appear upon the face of the will and can not be shown by any extrinsic evi- dence.43 xhus a devisee of certain lands of testator may claim an interest in part or all of such land under a contract of sale with testator,^-* or under a deed from testator.^s And a son of testator whose debts to his father have been re- leased bv will may claim that certain land transferred by him to his father, by\n instrument on its face, a deed, was in reality mortgaged to secure the debts which were released by 37Hibbs V. Insurance Company, 40 O, S. 543. 38 Allen V. Boomer, 82 Wis. 364. 39 Hyatt V. Vanneck, 82 Md. 465. 40 Bayer v. Walsh, 166 Pa. St. 38; (in such a case if the benefi- ciaries elect to purchase the prop- erty they take under the will and not as vendees). 41 Huhlein v. Huhlein, 87 Ky. 247. 42 Sherman v. Lewis, 44 Minn. 107; Hitchcock v. Genesee Probate Jud.i^'e, 99 Mich. 128; Tompkins v. Merriman, 155 Pa. St. 440; Beirne V. Beirne, 33 W. Va. 663. 43 Sherman v. Lewis, 44 Minn. 107. 44 Mills. V. McCaustland, 105 lo. 187; Brownficld v. Brownfield, 151 Pa. St. 505. 45 Hattersley v Bissett, 50 N. J. Eq. 577. 858 LAW OF WILLS. will, where such property is not specifically conveyed by the will.^« A bequest of the same amount as that provided for in an ante-nuptial contract, has been held to be in lieu of such ante- nuptial contract, and to put the widow to her election.^ ^ But where the will gave much less than the ante-nuptial contract, and testator's estate had increased considerably after his marriage, the bequest was held to be in addition to the ante-nuptial contract, and the widow was not put to her elec- tion.^s §718. Election to take property in specie free from power of sale. Where a power of sale or conversion is given for the benefit of certain desig-nated persons, such persons may, at their elec- tion, take the property in specie, w^here the rights of others will not be interfered with.'*^ And where the executor, upon whom a discretionary power of sale was conferred, the pro- ceeds to go to the children of testator, decided not to exer- cise such power, the children acquired such an interest in the property covered by the power that they might convey the same to one of their co-tenants.^^ The control and management of the realty for three years after the death of testator, and the commencement of a par- tition suit, are not such acts as show an election to take free from the power of sale ;^^ nor is an incomplete and unex- ecuted agreement between the Ijeneficiarics to take the prop- erty without sale such election.^- 46 Tompkins v. Merriman, 155 Pa. 210; Huber v. Donoghue, 49 N. J. St. 440. Eq. 125. 47 Graves v. Mitchell, 90 Wis. so Battersby v. Castor, 181 Pa. 306. St. 555. 48Taft V. Taft, 16,3 Mass. 467. si Mellen v. Mellen, 139 N. Y. 49 People V. Lease, 71 111. Api" 210. 380 ; Bowen v. Swander, 121 Ind. 52 Baldwin v. Vreeland, 43 N. J. 164; Mellen v. Mellen, 139 N. Y. Eq. 446. LAW OF WILLS. 859 §719. Who may elect. The right of election is ordinarily purely a personal right, and can be exercised only by the party entitled thereto in per- son. A widow's right of election can not be exercised after her death by her personal representatives or her heirs.^"^ Thus, where a father had, under a will, the right to take certain property as realty, or to take the proceeds thereof, it was held that where he did not exercise such right during his lifetime his legatee can not exercise it.^* ISTor can a creditor of the beneficiary elect for him, as by levy and sale of prop- erty.^ ^ Under special circumstances, however, the right of election has been exercised by others than the beneficiary to whom it primarily belonged. As for instance, where such beneficiary is mentally incapable of making such election, it is usually provided that his guardian may elect for him, subject to the approval of the court appointing such guardian, or that such court itself may elect.^*' Where guardian, who was also executor, petitioned the court for direction in making election for his ward, was advised to act as if he were not executor, and at once elected not to take under the will, it was held that this was a sufficient approval of such election by the court, and omission to record such ap- proval formally might be supplied by a nunc pro tunc order.^'^ Where one who had a right of election to purchase certain real estate at a designated price, and orally expressed his in- 53 Fosher v. Guilliams, 120 Ind. the original legatee in his lifetime. 172; Penhallow v. Kimball, 61 N. It was held that his executors H. 596; Page v. Eldredge Public could not change such election by Library Association (N. H.). 45 their own acts. ) Atl. 411; Millikin v. Welliver, 37 ss Cunningham v. Simpson, 1 Cin- O. S. 460; Anderson's Estate, 185 cinnati L. B. (Ohio), 173; so Car- Pa. St. 179; Church v. McLaren, 85 ter v. Harvey (Miss.), 25 So. 862. Wis. 122. ffi Bassett v. Durfee, 87 Mich. R4 Howell V. Craft, — N. J. — 167; Penhallow v. Kimball. 61 N. (1894) ; 27 Atl. 485. (In this case, H. 596. however, the right of election had -'^ Bassett v. Durfee, 87 Mich. been exercised to some extent by 167. 860 LAW OF WILLS. tention to take such purchase, but did not make formal elec- tion by reason in part of continued ill health, it was held tluit his children might elect upon his death.^^ Where bj accident the will was concealed during the life of the widow, and she had no opportunity for election, a court of election has exercised the right, of election for her after her death.^^ This result is reached occasionally by a somewhat different reasoning. It is expressed by saying that the person having the right of election, who dies before making any elec- tion in fact, will be presumed to have elected the more valuable right, where one is clearly more valuable than the other.^° Where by reason of the incapacity of the beneficiaries to make election, the court elects for them, the court will look only to the benefit of those who are incapacitated to make the election, and will not consider what election will be beneficial to other parties in interest.*^^ A right of election which may be exercised by the option of several can not be exercised by the concurrence of any less than that number.^- Thus, where the will provides for the conversion of certain real estate into money for the benefit of certain designated persons, the court will not allow any number less than all of the whole to take such property as real estate.*^^ A gift to be divided among several conferring separate and distinct interests may be ac- cepted or rejected by each individual separate from the others.^^ §720. How election is effected at common law. In the absence of a statute requiring the filing of a written election, and making such a mode of election exclusive, it is well settled that a party who has right of election, may ex- 38 Parker v. Seeley, 56 N. J. Eq. 62 Brown v. ]\liller, 45 W. Va. 110. 211. 59 Spruance v. Darlington, 7 Del. «•'' Howell v. Craft, — N. J. Eq. Eq. Ill (1895), 30 Atl. 663. (1894), 27 Atl. 485: BYO^vn v. Mil- 60 Merrill v. Emery, 10 Pick. ler, 45 W. Va. 21 1. Mass. 507 ; Yawger v. Yawger, 10 6* Webster v. Wiggin, 19 R. I. Stew. Eq. 216. 73; 28 L. R. A. 510. 61 Spruance v. Darlington, 7 Del. Eq. Ill (1895). 30 Atl. 663. LAW OF WILLS. °"^ ercise sucli riglit as well by his conduct as by any written election tiled in the propef conrt.«^ What facts and what conduct constitute an election is, however, a question upon which there is considerable diversity of judicial opinion. Where the beneficiary attempts to retain and enforce both inconsistent rights, such conduct does not operate as an elec- tion of either.'^'^ But where 'his conduct is such as is incon- sistent with the assertion of one of the two conflicting rights he is held to have thereby made an election to take the other. The question of what conduct is inconsistent with one of the conflicting rights is taken up in detail in the following sections. §721. Effect of qualifying as executor. In some jurisdictions it is said that one who offers a will for probate and qualifies as executor has thereby elected to take under the will; and that such acts are so final and definite an election that he can not claim any interests in opposition to the will^'-^ Where qualification as executor operates as election the reason given for the doctrine is that the executor takes oath to execute the provisions of the will, and thereby renders it impossible for him to elect to take in opposition to its provisions.^« In some states this doctrine is entirely re- pudiated, and the acts of causing a will to be probated and qualifying as executor do not constitute an election. 65 Cunningham's Estate, 137 Pa. 312; Allen v. Allen 121 N. Car^ ^ 3->8- Mendenhall v. Mendenhall, 8 ^';o In Defreese V.Lake, 109 Mich. Jones, 287; Syme v. Badger, 92 415-32 L. R. A. 744, it was said N. Car. 70G ; Allen v. Boomer, 8- to be a question of fact whether Wis. 364. an occupant of property had taken ''^ Allen v. Allen, 121 N. Car. possession of the property under a 328. ^^^ ^^ ^^^^_^^^^ ^^^^^^^ ^ ^^^ devise or under a tax deed^ ^ ^^^ ^ ^ 3^^ . -, OT Huston V. Cone, 24 0^ S^ 11. 63^- ^^^ ^^^^^^^,^ ^^^^^^^^ csXimmons V. Westfal 33 O. S- Law P ^ ^^^^^ ^^^ 213; Cunningham's Estate, 137 Pa. U)-3 io- ^ ' o^ « W 1121 St. 621. 69 Stone V. Vandermark, 146 111. Civ. App. 1894; 25 S. W. 1121. 862 LAW OF WILLS. §722. Taking part in litigation. One who acts in litigation over the subject matter, claiming title thereto under the will, is held to make his election thereby to take under the will and to waive rights inconsistent there- withJ^ Where the part taken in litigation is such as to show clearlv that no electon is intended, the court will not arbi- trarily treat such conduct as an election.^^ An election may also be shown by the report of the ex- ecutor, who is also the beneficiary to exercise the election, recommending a disposition of testator's property, which neces- sarily involves the enforcement of all of the provisions of the wiU.'^^ §723. Election by taking possession of property. Where the beneficiary has no right to the possession and occupation of certain property, except by virtue of the pro- visions of testator's will, his conduct, in entering into pos- session of such property and using and occupying it as his own, 72 Hunkypillar v. Harrison, 59 Ark. 453. (The election was held iu this case to be made by filing an answer in a suit to set aside a conveyance of real estate by tes- tatrix, claiming title to such real estate as her devisee and receiving the proceeds of such suit without accounting therefor.) Gullett v. Farley, 164 111. 506; Davis v. Bad- lam, 105 Mass. 248; (election ef- fected by appealing as devisee from an award for damages for taking the realty devised under -proceedings in eminent domain). Smith v. But- ler, 85 Tex. 126; (election effected by applying to have the property delivered to the custody of such person as beneficiary). In Gul- lett V. Farley, 164 111. 566, the court said that filing a bill for partition as devisee was "the very best and most notorious election." 73 Carpenter v. Strange, 141 U. S. 87. (Where testator devised to cestui que trust a tract of land upon condition that she renounce all claims upon his estate for the trust funds, and the cestui que trust brought suit against testa- trix to have the land devised de- clared to be hers free from any con- dition, and to have other poperty of testator subjected to the trust, it was held that such act did not amount to an election.) 74 Craig V. Conover, 80 lo. 355. ( So an executor's report w^hicli shows that the property disposed of by will was surrendered by the grantee of the widow, may be used to show the election of such widow to take under the will.) Pellizzarro V. Reppert, 83 lo. 497. LAW OF WILLS. 863 will be held to be a sufficient indication of his purpose to take under the will to constitute an electionJ^ Where the beneficiary has subsequently sold such prop- erty,"° or leased such property, "^ such conduct still more clearly shows an election. An election may also be made by a refusal to occupy the property given by will, especially where such occupancy is made a condition to the enjoyment of the devise.^^ Where, however, the occupancy of the property by the beneficiary is not necessarily referable to the will, but may be referred as well to his pre-existing title, such occupancy will not constitute an election either to take under the wilF^ or against it.^'* So the receipt of property not disposed of by will, which the recipient would have taken if testator had died intestate, is not an election to take under the will.^^ Where different pieces of property are given to one by will, his acceptance of one does not bind him to accept the others. Hence, where testator gave a legacy to A without restriction, and some realty charged with tlie pa^mient of legacies to others, A's acceptance of the legacy was not an election to take the realty and pay the legacies.^^ 75 Smith's Estate, 108 Cal. 115; ^7 Wilson v. Wilson, 145 Ind. Bennett v. Packer, 70 Conn. 357; 659. (property used and enjoyed for ten 78 Grindem v. Grindem, 89 lo. years). Fry v. Morrison, 159 111. 295. 244; (property used for six years). Such conduct was held to be an Wilson V. Wilson, 145 Ind. 659; election to take a designated sum (property used for ten years). of money which was given as an Davidson v. Davis, 86 Mo. 440: alternative to the homestead. Hovey v. Hovey, Gl N. H. 599; 79 Smith's Estate, 108 Cal. 115: (property used for nine years). Hill Hunter v. Hunter, 95 lo. 728; 64 V. Hill, G2 N. J. L. 442; Davison ^T. W. 566; Mayo v. Tudor, 74 Tex. V. Davison, 15 N. J. L. 235: Baxter 471. V. Bowyer, 19 0. S. 490; Cannon v. so Frankes. v. Wiegand, 97 lo. Apperson, 14 Lea, 553; (property 704; 66 N. W. 918; Mellon v. Mel- used for twelve years). Chace v. Ion, 139 N. Y. 210. Gregg, 88 Tex. 552 ; Meech v. Meech, si Pryor v. Pendleton, 92 Tex. 37 Vt. 414; Wells v. Congregational 384; (not affected on this point by Church, 63 Vt. 110; Drake v. Wild, reversal on rehearing) ; 49 S. W. 70 Vt. 52; (property occupied for 212; Williams v Emberson (Tex. thirteen years). Civ. App.), 55 S. W. 595; see Sec. 76 Smith's Estate, 108 Cal. 115; 326. Chace v. Griggs, 8 Tex. 552. 82 Collett v. Cook, 3 Ohio C. C. 119. 864 LAW OF WILLS. §724. Keceipt of money as election. A receipt of money given by a will may be unquestionably an election where such money is retained and where its pay- ment can be referred only to the provisions of the will.^^ But a payment of money which might as well be referred to some other obligation,^^ or to a gift/^^ will not, of itself, constitute an election to take under the will. It is even held that the mere receipt of money paid as a legacy does not constitute an election, since the party receiving the money may, by re- paying the same, put all parties in interest in statu quo.^''^ And where a widow accepted from one who was named as executor, but not qualified as such, his promissory note for a legacy which was given in the Avill in lieu of her dower, it was held that this did not amount to such an election as to prevent her from claiming her dower if she did not receive the legacy.^'^ Acquiescence in the sale of realty in accordance with the provisions of the will operates as an election.^* §725. Effect of election. — Where election not necessary. It sometimes happens that through a misapprehension as to the legal rights of the parties in interest some party who is entitled to two or more distinct rights vdll think that he is bound to elect between them, and will, accordingly, make a statutory or a common law election. In STich a case, where no bona fide purchaser has been misled by such conduct, the 83 Martien v. Norris, 91 Mo. 465 ; of the will. It was held that the Bryant v. McCune, 49 Mo. 546. conduct of the husband in accepting S4 Thome v. Thorne (1893), 3 the check and presenting it for Ch. 196. payment did not amount to an 85 May V. Jons, 87 lo. 188. (A election to take under the will.) will was executed givng a legacy s« English v. English, 3 N. J. Eq. to the husband of testatrix. Be- 504 ; Young v. Young, 51 N. J. Eq. for the execution of the will, testa- 491. trix gave her husband a check for 8^ Hill v. Hill. 88 Ga. 612. the same amount as the legacy. 8s Cunningham's Estate, 137 Pa. The chock was not presented for St. 621. payment until after the execution I.AW OF WILLS. ^"^ election to take one of these rights will have no effect as a renunciation of the other.^^ This doctrine rests upon the ohvious reason that even an express promise on the part of the person assuming to make such election to waive all of his property rights except such as he elects to take, would be without consideration, and void. There is nothing in the conduct'of the parties to affect a trans- fer title directly; and where no innocent third person has acted in reliance upon such conduct there is no ground for alleging an estoppel. §726. Where election necessary. In cases where inconsistent rights vest in a designated per- son, and the doctrine of election applies, the effect of such eleJtion upon the part of such person to take a specified right operates as a renunciation of the incousistent right, and is a bar to any subsequent assertion of any legal right inconsistent therewith.^*^ A partial election is of course an impossibility; that is, the beneficiary can not accept in part the benefits of the will 89 Richards V. Richards, 90 lo. 247; and where the ^yidow elects 606: Baldwin v. Hill, 97 lo. 586; to take a provision in lieu of dow- 66 N W. 89; Hall v. Smith, lO:] er, it bars her right to enforce Mo 289; Sumerel v. Sumerel, 34 S. dower in property which her hus- ^^^ gg band had disposed of by warrant ''s'i)' Baldwin v. Hill, 97 lo. 586; deed during coverture, although of 66 N W 889; Huhlein v. Huhlein, course such property was not con- 87 Ky 247- Brossenne v. Schmitt, veyed by will. Fairchild v. Mar- 91 Ky"465; Knight vMahoney, 152 shall, 42 Minn. 14; nor can a Mass 5'>3- 9 L. R. A. 573; In re widow to whom several pieces of Smith, 60' Mich. 130; Bro^^m v. property are given by will, one of Brown, 42 Minn. 270; Fairchild v. which was stated to be m lieu of Marshall, 42 Minn. 14; In re Mar- dower, take her dower and the chemer's Estate, 140 Pa. St. 544; pieces of property given her bj the Colvert V Wood, 93 Tenn. 454. will other than the one which was Thus where testator devised land expressly stated to b« ^^ 1;^" '^ to his wife, and gave by will to dower. In re Smith, 60 Mich. 10. another an insurance policy pay- So where a husband accepts under able to his wife, it was held that his wife's will, he is barred oi her acceptance of the devise pre- rights of courtesy inconsistent with eluded her from collecting the pol- such will. Weller v. NoEEsinger, 5. iey. Huhlein v. Huhlein, 87 Ky. Nob. 455. 866 LAW OF WILLS. and in part retain inconsistent rights.^^ Thus, a widow can not take under the will as to the real property and reject the will as to personal property j^^ nor reject the will as to testator's omi property and take under it as to property over which he had power of appointment.^^ But the complicated question presented in discussing the effect of election really involves the same principle as that of the necessity of elec- tion; that is, whether the several rights are so inconsistent that the claims can not be all insisted upon. §727. Full knowledge of rights necessary in common law elec- tion. — Right to revoke election. In a common law election the party whose acts and con- duct are relied upon as an election binds himself only when he acts mth adequate knowledge of his rights and the sur- rounding circumstances which modify and effect their value.®* "Nothing but unequivocal acts will prove an election, and they must be done with knowledge of the party's rights as well as of the circumstances of the case." ®^ One who has elected without full knowledge of the me- terial facts may subsequently change his original intention and alter his election unless the situation has so changed that this can not be done without prejudice to the subsequently acquired rights of others.^^ Where an election is made at common law under a mistake li fact it may be revoked "unless the situation has so changed since her election that it can not be done without prejudice 91 Codrington v. Lindsay, L. R., 8 »* Clark v. Hershy, 52 Ark. 473 : Ch. App. 578 ; Bristow v. Warde, 2 Goodrura v. Goodrum, 56 Ark. 532 ; Ves. Jr. 336; Cooper v. Cooper, Spangler v. Dukes, 39 0. S. 642; L. R. 7 Eng. & lo. A: C. 53; Herbert Medill v. Snyder (Kan.), 58 Pao. V. Wren, 7 Cranch (U. S.), 370; 962: Geiger v. Geiger (S. C.) Schley V. Collis (U. S. C. C.) Ga. (1900), 35 S. E. 1031. 47 Fed. Rep. 250; 13 L. R. A. 567: 95 Woodburn's Estate, 138 Pa. St, In re Smith, 60 Mich. 136; Farnum 606; so Bierer's Appeal, 92 Pa. St. V. Bryant, 34 N. H. 9; Allen v. 266; Cox v. Rogers., 77 Pa. St. 160. Boomer. 82 Wis. 364. o" Wake v. Wake, 1 Ves. Jr. 335 : 92Bloss's Estate, 114 Mich. 204. Hill v. Hill, 62 N. J. L. 442; Young 93Fiske V. Fiske 173 Mass. 413. v. Young, 51 N. J. Eq. 491. LAW OF WILLS. 867 to the subsequently acquired rights of others."^^ Where, how- ever, property is accepted under the will the person receiving it is bound to show that he did so under a mistake of fact. In the absence of such explanation his conduct amounts to an election.*'* In order, however, to change an election once made the other parties in interest may be placed in statu quo. This can be done either by returning the property or by making adequate compensation therefor.^^ In jurisdictions where formal written election is not re- quired by statute the filing of a written election is only val- uable as preserving evidence of the fact of tlie common law election; and a beneficiary who signs such an election under a misapprehension of facts may alter such election.^ "^ Where, however, a beneficiary receives and retains property given by the will, without any explanation of his conduct in so doing, it is treated as a final election.^^^ Mere delay in inquiring into one's rights does not amount to a final election, at least where a valid excuse can be sho^vm for such a delay.^^^ §728. Statutory election. — When necessary. In many states the method of election between rights of dower or curtesy and rights given by the will of a deceased spouse is controlled largely by statute. These statutes are usually held to require an election only in cases when by the prin- 97Macknet v. Macknet, 29 N. J. St. 451; Cunningham's Estate, 137 Eq. 54, quoted in Hill v. Hill, 02 Pa. St. 621 ; Woodburn's Estate, 138 N. J. L. 442. Pa. St. 006 ; ( in this ease there was 98 Davison v. Davison, 15 N. J. L. no fraud or misrepresentation of 235. any kind, the parties in interest 89 Young V. Young, 51 N. J. Eq. being equally ignorant of their re- 491; (in this case the court said spective rights. The widow was in speaking of the beneficiary who held not to be bound by her written wished to change his election : "He election made in ignorance of such is permitted, after having claimed facts). under the will, to claim against the loi Hill v. Hill, 02 N. J. L. 442. will if out of the claim against the 102 Clark v. Horshey, 52 Ark. will he will make compensation for 473: (delay in this case was caused what he has claimed under the by the Civil War in consequence of ^[]\;') which the courts were closed and 100 Bradford v. Rents, 43 Pa. St. the husband of devisee fled from 474; Kennedy v. Johnston. 65 Pa. his home). 868 LAW OF WILLS. ciples of equity an election is necessary; that is, when the devisee is required to choose between rights given by the will and inconsistent rights by the law.^^^ A question occasionally discussed, but not settled by de- cisions of courts of last resort, arises under the peculiar word- ing of some of the statutes on the subject of election. By the terms of some of these statutes a widow or widower for whom "any provision" is made by the will is required to elect whether to take under the will or under the law. Does such a provision make election necessary where the Avill gives rights in addition to those given by the law, and not in lieu of them ? The literal wording of such statutes seems to require a written elec- tion in any case, although an election to take both the rights given by the will and those given by the law is an absurdity upon its face. Of course in the absence of statute, equity did not recognize the doctrine of election as applying to such u case.^*^^ So the 'New Jersey statute, requiring written elec- tion, does not apply w^here the devise is to one in trust for the widow.-^^^ §729. At what time statutory election must be made. The statutes which require written election generally require that a notice or citation issue to the person upon whom the duty to make the election is cast; and the time within which the election is made runs from the service of the citation.^ '^'^ In some states the time within v.diich the written election is to be made runs from the death of testator or admission of the will to probate, the surviving spouse being required to take notice of the necessity for election without any citation.^ *^''' 103 Burgess v. Bowles, 99 Mo. 543. lo^ Whited v. Pearson, 90 lo. 48, 104 In Hall V. Smith, 103 Mo. 289, 756 (and) 87 lo. 513; Bowen v. it was said that if the will showed Bowen, 34 O. S. 164; (the refusal testator's intention to give property of the widow to elect does not waive in addition to dower, no election the issuing and service of the cita- is necessary. In this case, how- tion ; Bowen v. Bowen). Spreen v. ever, written election was unneces- Sandman, 2 Ohio C. C. 441. sary for other reasons. Pemberton iot Akin v. Kellogg, 119 N. Y. V. Pemberton, 29 Mo. 408. 441. 105 Hill V. Hill, 62 N. J. L. 442; Van Arsdale v. Van Arsdale, 26 N. J. L. 404. I^W OF WILLS. 869 A written election to take under the will or to take under the law must be filed by the party upon whom the duty of election is cast within the time limited by statute. The effect of the failure of such an election depends, of course, upon the stat- utory provisions. Under perhaps a majority of the statutes a failure to file a written renunciation of the provisions of the will and election to take dower operates as a waiver of dower and an election to take under the will.^°^ Under other statutes a failure to file a written election to take under the will is a waiver of rights under the will and an election to take the rights given by the law.^^^ §730. What is "filing" under statutes. Under these statutes the written election is required to be filed with some designated court or official, usually with the court of probate powers before which the estate is being ad- ministered. An execution of renunciation in writing has no legal effect without actual filing.^ ^° Where such renunciation is not in fact filed, attaching it to a pleading as an exhibit is not a compliance with the statute,^ ^^ nor is the act of depositing it in a post-office, sealed, stamped and properly addressed to the probate judge a sufii- cient filing, where such written election was not in fact re- ceived and filed by the probate judge.^^^ 108 Sanders v. Wallace, 118 Ala. in certain realty were determined, 418; Cribben v. Cribben, 136 111. where such suit was pending at 609; Warren v. Warren, 148 111. his death, even though the time of 641; Fosher v. Guilliams, 120 Ind. making election is thereby post- 172; Draper v. Morris, 137 Ind. 169; poned beyond that fixed by stat- Archibald v. Long, 144 Ind. 451; ute. Tracy's Estate (Minn.) (1900) ( 1896 ) 43 N. E. 439 ; Morse v. Hay- 82 N. W. 635. den, 82 Me. 227; Chadwick v. Ta- lo® Everett v. Croskerey, 92 lo. tem, 9 Mont. 354; Bassett v. Dur- 333; Stilley v. Folger, 14 O. 610. fee, 87 Mich. 167; Jones's Estate, no Draper v. Morris, 137 Ind. 75 Minn. 53; Cooper v Cooper, 56 169; Allen v. Harnett, 116 Mo. N. J. Eq. 48; McGlaughlin v. Mc- 278; Church v. McLaren, 85 Wis. Glaughlin, 43 W. Va. 226. Even 122. under such statutes it has been m Draper v. Morris, 137 Ind. held, however, that the widow may 169. withhold her election until a suit 112 Allen v. Harnett, IIG Mo. by which her husband's interests 278. 870 LAW OF WILLS. §731. Can a written election be revoked? After a surviving spouse has filed a written election, either to take under the will or to take under the law, can such an election be withdrawn before it is acted upon, or is the m^re act of the filing conclusive ? Upon this subject there is some difference of judicial opinion, chiefly owing to the language of the different statutes. The \\Titten election can certainly not be mthdrawn without an order of the court before which it was filed.^^^ In some jurisdictions it is held iJiat such an election may be withdra^^^l by order of the court before which it was filed upon showing good reason therefor, if the application is made before the election has been so acted upon as to estop the party electing from withdrawing such an election.^ ^^ Where this view of the right of the party electing to with- draw the election is entertained, the question of what is a good ground for withdrawing is quite important In some states false statements as to the effect and consequences of election made by parties interested adversely to the widow, are held to be less sufficient reasons for permitting her to withdraw her election.^ ^^ In other states such false statements are not treated as suffi- cient grounds for allo^Hng an election to be withdra^vn, es- pecially where the party electing made no effort to assert her rights from independent sources.^ -"^ In other jurisdictions the election is a finality, and after it is once made and entered upon the journal of the court, can- not be withdra^Ti.-^-^^ 113 Coles V. Terrell, 162 111. 167. expired. The court held that the 11* Gam V. Gam, 13,5 Ind. 687; probate judge ri.ijhtly refused to en- Dudley V. Pigg, 149 Ind. 363. tertain the right of application 115 Garn v. Garn, 135 Ind. 687. which was rrjade upon the gound lie Akin v. Kellogg, 119 N. Y. of mistake, intimating that such 441. relief could be had only in a court 117 Davis V. Davis, 11 O. S. 386. of equity powers, and that, if suf- (In this case application was made ficient circumstances of fraud or to the judge of probate powers be- mistake should be sho\vn to ex- fore the time within which the wid- ist such court might order the entry ow might have made election had of election to be cancelled, even LAW OF WILLS. ^^^ §732. Estoppel to deny written election. Even where the election is required to be in writing the parties intereste3 Board of Education v. Ladd, 26 O. St. 210. LAW OF WILLS. °''^ had if such a contingency had occurred to him as that of the death of the beneficiary befoi^e his own. Accordingly, if tes- tator clearly showed his intention that the legacy should not lapse in case beneficiary died before testator, but should pass to the heirs or next of kin of such beneficiary, such intention will be given full force and effect.^^^ Thus, where testator clearly intends that his gifts shall pass to the beneficiaries as a class, there is no lapse by reason of the death of any one of them before the class is determined; that is, the entire gift passes to the members of the class in existence when the class is to be determined.1^5 ^or ig there a lapse where testator specifically provides for the gift over in case of the death of the first benefieiary.i^^ go where, after the death of certain beneficiaries, testator added to their names the words "de- ceased," and interlined "or to their legal heirs," and re-exe- cuted the Avill, it was held that this prevented lapse.^^^ A provision in a codicil that "in the final division of my estate I desire that the grandchildren shall be taken into con- sideration, and that the estate shall be so divided that the grandchildren shall have equal shares," is not a gift to the grandchildren whose parents are living, but a provision to prevent lapse.^^^ The common law favored such reasonable construction of the will as would prevent lapse.^^^ §742. Effect of modern statutes upon the common law doctrine of lapse. In many jurisdictions statutes have been passed which mod- ify the common law doctrine of lapse of a devise or legacy in case of the death of the beneficiary before the devise or legacy 154 7n re Pinhorne (1894), 2 Ch. iss Rivers v. Rivers, 36 S. C. 276- Kerrigan v. Tabb (N.J.),39 302; Brice v. Horner, — Tenn. — Atl. 701; Gilmore's Estate, 154 Pa. (189G), 38 S. W. 440. St. 523; McGovran's Estate, 190 Pa. i" Gihnore's Estate, 154 Pa. St. St. 375; Rivers v. Rivers, 36 S. 523. C 302- Brice v. Horner, — Tenn. iss McDowell's Estate (Pa.) _ (1806), 38 S. W. 440. (1900), 45 Atl. 419. 155 Gordon v. Jackson (N. -J.) ^'^^ In re Smith, L. R. 35. Ch. D. 43 Atl. 98; McGovran's Estate, 190 558= Vanderzee v. Slingerland, 103 Pa. St. 375. ^'- Y. 47. 880 LAW OF WILLS. vests. These statutes are by no means uniform, and for the purpose of convenience may be divided into three groups. In jurisdictions of the first group lapse is prevented only where the beneficiary is a lineal descendant of the testator. In jurisdictions of this class, if the legatee or devisee is a descendant of testator, and dies before interest vests, leaving issue which survive at the death of testator, the devise or legacy does not lapse in the common law sense of the term, but passes to such issue.^*^^ In jurisdictions of the second Qlass the statute prevents lapse where the beneficiary is a child or other relative of testator, and dies leaving issue surviving testator.^ *^^ The South Caro- lina statutes on the subject of lapse apply only where the bene- ficiary is a ''child" of testator; and have no application where the beneficiary is a grandchild or greatgrandchild.^*^- In some states of this group the statute applies only to certain classes of relatives who are clearly named in the statute.^ ^^ Statutes of the first and second groups leave the common law of lapse unmodified, except in cases where the devisee or legatee stands in one of the designated classes of relationship to testator. In states of the third group, however, the statute provides that devises or legacies should not lapse where the devisee or legatee dies before testator, if such devisee or lega- tee leaves children or lineal descendants alive at testator's death.^*'^ This statute; however, modifies the common law only where beneficiary left is?je surviving testator. Accord- iiigly, where the beneficiary dies without leaving issue sur- viving, the statute has no application, and the common law rule of lapse applies.^ ^'^ In some states the statutes on the subject of lapse are so broad that they prevent lapse in any case, no matter what re- 160 Morse v. Hayden, 82 Me. 227. i64 Williams v. Knight, 18 R. I. 161 Woolley V. Paxson, 46 0. S. 333 ; Wildberger v. Cheek, 94 Va. 307. 517. 162 Logan V. Brunson, 56 S. Car. les Stetson v. Eastman, 84 Me. 7. 366; Smith v. Smith, 141 N. V. 163 See Sec. 743. 29. LAW OF WILLS. 881 lation the beneficiary is to the testator, and entirely irrespec- tive of whether beneficiary 1-eaves sur\dving descendants or not.^^^ These statutes do not ordinarily, in their terms, ap- ply where the beneficiary^ died before the will was exe- cuted.^ ^^ jSTor do they apply where the interest has vested in the beneficiary upon testator's death, and he dies before talc- ing possession of the property devised.^ ^^ §743. "Relations" or "descendants" under the statute. Where the statute against lapse applies only where* the beneficiary is a "relation" of testator, a relation by marriage is not a relation within the meaning of the statute ;^^^ nor is a wife a "relative" of her husband in this sense ;^'^° nor is a husband a "relative" of his wife.-"^^ Where the statute pre- vents lapse, and in case beneficiary leaves a "lineal descendant," it is held that a mother of beneficiary is not a "lineal de- scendant" ;^''^^ nor indeed are any of the heirs not in the de- scending line from the beneficiary •,^'^^ nor is an adopted child a descendant so as to pre-vent lapse.^''^^ Under statutes preventing lapse, the beneficiary who died before testator can not, by his will, alter the devolution of the gift from that in- dicated by statute.-' '^^ 166 Garrison v. Hill, 81 Md. 206; i69 Horton r. Earle, 162 Mass. Halsey v. Convention of the Prot- 448; (a brother-in-law held not to estant Episcopal Church, 75 Md. be a relation in this sense). Bram- 275; Wallace v: Du Bois, 65 Md. ell v. Adams, 146 Mo. 70. 153; Glenn v. Belt, 7 G. & J. (Md.) ito Renton's Estate, 10 Wash. 3G2. 533. 167 Williams v. Knight, 18 R. I. i^i Norwood v. Mills, 1 O. N. S. 333. It is held to apply where the 314. beneficiary died before the will was ^'^~ Morse v. Hayden, 82 Me. 227. executed. Wildberger v. Cheek, 94 1^3 Loveren v. Donaldson (N. H. ), Va. 517; Nutter v. Vickery, 64 Me. 45 Atl. 715. 490; Taylor v. Conner, 7 Ind. 115; it* Phillips v. McConica, 59 O. S. Minter's Appeal, 40 Pa. St. Ill; 1. Darden v. Harrill, 10 Lea, 421. i^s Halsey v. Convention of P. K. 168 Patton V. Ludington, 103 Wis. Church, 75 Md. 275. 629. 882 LAW OF WILLS. §744, Disposition of lapsed legacies and devises. If testator has expressed his intention in his will as to dis- position of lapsed legacies and devises, such disposition will, if legal, be given full effect.^ ^^ Where testator has expressed his intention, however, the legacy or devise is not always spoken of as lapsed. It is rather a case of a substitutional gift. Where testator does not express his intention as to the disposition of his devise or legacy, and there is no general re- siduary clause in the will, the legacies or devises pass as in- testate property.^ '^'^ The persons taking are those who were designated by the statutes of distribution to take at testator's death if he had died intestate, even though the lapsed gift was not to be paid till the termination of two lives in being at tes- tator's death.^'^^ If there is a general residuary clause in the will, a lapsed legacy given by any part of the will other than such residuary clause becomes a part of residuum upon the lapse, and passes to the residuary legatee.^ '''^ If, however, the lapsed legacy is given by a residuary clause, it does not be- come part of the residuum upon such lapse. Of course, if there is only one residuary legatee, the proposition that if the legacy to him lapses it must go to the next of kin as intestate property is so clear as to need no discussion. But where the residuum of estate is given to two or more, and the gift to one of them lapses, it has often been questioned whether such lapse should pass under the residuary clause to the remaining resid- uary legatees, or whether it should be regarded as intestate property. It is now well settled that a lapsed share of the re- siduum is not a part of the residuum, but is intestate prop- 176 Leake v. Watson. 60 Conn. i"s Clark v. Cammann, 160 N. Y. 498: McGreevy v. McGrath, 152 315. Mass. 24; Smith v. Secor, 157 N. it9 Crerar v. \Yilliams, 44 111. Y. 402; Hoopes' Estate, 185 Pa. App. 497, affirmed 145 111. 625; 21 St. 172. L. R. A. 454; New Orleans v. Har- 177 Collins V. Collins, 126 Ind. die. 43 La. Ann. 251 ; Dulaney v. 559 ; Hunter's Succession, 45 La. Middleton, 72 Md. 67 ; Pollock v. App. 262; Clark v. Cammann, 160 Farnham, 156 Mass. 388; Roy v. N. Y. 315. Monroe, 47 N. J. Eq. 356. LAW OF WILLS. 883 gj.|.y]8o gQ where gifts were made to A and B separately, and the residuary estate was given to them, and A died with- out descendants before the testator, it was held that the spe- cific legacy to A became a part of the residiunn ; and that the residuum, as increased by this lapsed legacy, was to be divided equally between B and those who would take if testator had died intestate.^ ^^ As in a case of lapse because of the death of the beneficiary, legacies which fail because of the refusal of the beneficiary to take pass to the residuary legatee if no provision in the will is fund providing for such contingency.^ ^^ Thus, a testa- tor gave legacies to three charitable corporations, but pro- vided that if these corporations ever "in any manner gave any support and sympathy or countenance to what I consider the pernicious fallacy of prohibition or its bantling local op- tion," the legacies should be forfeited, and the amounts given should pass to a public library. The trustees of these chari- table corporations refused to adopt the legacies because of their affiliation with their religious body, whose princi2de.s were op- posed to traffic in intoxicating liquors. It was held that, upon these facts, the legacies passed to the public library.^^^ At common law it seemed well settled that a lapsed devise of real estate descended to the heir as intestate property.-^ ^^ In deciding thus, the courts practically held that every devise of real estate, even though residuary in form, was in legal effect a specific devise, and could pass only such property as corresponded to that description at the time the will was made. The reason given for the distinction between the devolu- tion of lapsed legacies and lapsed devises is hardly a satisfac- 180 Buffinton v. Maxam, 152 sary to compensate those who are Mass. 477 ; Gray's Estate, 147 Pa. disappointed by the refusal of the St. 67; Gorgas's Estate, 166 Pa. widow to take under the will.) St. 269; Kimball's Will, 20 R. I. iss White's Estate, 174 Pa. St. 619; 20 R. I. (Part 3) 688. 642. 181 Stetson V. Eastman, 84 Me. is* Thomas v. Thomas, 108 Ind. 366. 576; Prescott v. Prescott, 7 Met. 182 Sawyer V. Freeman, 161 Mass. (Mass.) 141; Williams v. NeflT. 543. (This rule, of course, applies 52 Pa. St. 326; Stonestreet v. only where such legacy is not neces- Doyle, 75 Va. 356. 884 LAW Ol-^ WILLS. torv one. The courts placed the distinction upon the ground that a residuary chiuse of personalty could pass all the per- sonalty owned by testator at his death, while a residuary clause of realty could pass only such realty that testator owned at the time of the execution of the will.^^^ In most states, as we have seen already, statutes have been passed making it possible for testator to devise after-ac- quired real estate. Where statutes of this sort have been passed they destroy the common law reason for holding that a lapsed devise descends to the heir, and does not pass to the residuary devisee. Accordingly, in most states it is held that where such statutes are in force a lapsed devise passes to the residuary devisee, and not to the heir.^^^ §745. "Void legacies and devises in general. A void legacy or devise is one which never could have taken effect upon testator's death.^^^ Void legacies may, for pur- poses of convenience, be divided into two general classes: those which are void by reason of some condition in testator's will which is not complied with, and those which are void by reason of the existence of some positive rule of law which pre- vents testator from making the disposition of his property which he contemplates. 185 "At common law whenever a tator at the time of his death not devise lapsed by the death of a otherwise given, no matter when ac- devisee before the death of testa- quired." Molineaux v. Raynolds, 55 tor, the property passed to the N. J. Eq. 187. heirs-at-law, while lapsed legacies, iss Drew v. Wakefield, 54 Me. instead of passing to the next of 291; Lovering v. Levering, 129 kin, fell in the residuum and so Mass. 97 ; Shreve v. Shreve, 2 passed under a will to the resid- Stock, 385 (N. J.). (This question uary legatees. This distinction be- was raised in this case but not de- tween the course taken under the cided.) Smith v. Curtis, 5 Dutch, same' condition of affairs by lapsed 345; Molineaux v. Raynolds, 55 N. devises and lapsed legacies, seems J. Eq. 187; Cruikshank v. Home, to have sprung from the fact that etc., 113 N. Y. 337. no real estate acquired by the testa- is^ Potter v. Couch, 141 U. S. tor after the execution of his will, 296; Ketchum v. Corse, 65 Conn, passed under the residuary clause, 85; State v. Holmes, 115 Mich while such a clause included all 456. personal property owned by tes- LAW or WILLS. 885 Legacies which are void by reason of some condition in tes- tator's will which is not complied with have already been dis- cussed under the heading of Conditions.^ ^^ Legacies which are void by reason of the existence of some positive rule of law may be illustrated by gifts of remainders over on breach of a condition in restraint of alienation,^ ^'^ or by gifts which are void as being in contravention of the rule against per- petuities.^''^ So a gift may be void, because the description of the property given is so ambiguous that it is impossible to tell to which part of testator's estate it applies.^^^ A gift may also be void because the legatee never had the capacity to take the ffift.^^2 to^ §746. Devolution of void legacies and devises. The rules which govern the devolution of void legacies are substantially the same as those which control in case of lapsed legacies. In the absence of a residuary clause the property which is the subject of a void gift descends as in case of in- testacy.^''^ Where there is a valid general residuary clause void legacies pass under such residuary clause to the residu- ary legatees.^'''* While at common law void devises descended to the heir, they pass now under a residuary clause which con- tains apt words to pass such property.^ ''^ But where the re- siduary clause passes only the property "not hereinbefore dis- 188 See Chapt. XXXI. Harris v. i93 Levy v. Levy, 33 N. Y. 97 ; Harris (Ky.), L. R. 1313, rehearing State v. Holmes, 115 Mich. 456; refused, 50 S. W. 533; 20 Ky. L. R. McHugh v. McCole, 97 Wis. 166; 1911; Wilson v. Hall, 6 O. C. C. 40 L. R. A. 724. 570; Starke v. Cond6, 100 Wis. 19* Dulany v. Middleton, 72 Md. g33_ 67 ; Carter v. Presbyterian Church 189 Potter v. Couch, 141 U. S. Board of Education, 144 N. Y. 296. 621; In re Allen, 151 N. Y. 243; 190 Perkins v. Fisher, 59 Fed. Davis v. Hatchings, 15 Ohio C. 0. 801; Ketchum v. Corse, 65 Conn. 174 ; 8 Ohio C. D. 52 ; rev. 4 Ohio N. 85; State v. Holmes, 115 Mich. P. 276 ; 6 Ohio Dec. 371. 456; Kelly v. Nichols, 17 R. I. i95 Giddings v. Giddings, 65 Conn. 306. 149; Davis v. Hutchings, 15 Ohio loiAsten v. Asten (1894), 3 Ch. C. C. 174; 8 Ohio C. D. 52; revers- 2G0. ing 4 Ohio N. P. 276; 6 Ohio Dec. 192 House of Mercy v. Davidson, 371; Milwaukee Protestant Home 90 Tex. 529: 39 S. W. 924. v. Becher, 87 Wis. 409. 886 LAW OF WILLS. posed of," it does not pass land devised, though the devise is void as in violation of the rule against perpetuities.^ ^^ The well recognized exception to the rule that void legacies and devises pass under a residuary clause is where the void legacy or devise is itself given by a residuary clause. In such case the property w^hich is the subject of the void gift does not pass to the other residuary legatee, but descends as intes- tate property.^ ^^ Of course, if there is a specific gift over of the property which -was the subject of the void gift, in case of the failure of such gift, effect will be given to this specific pro- vision, and the property given will pass neither under the re- siduary clause nor as intestate property.^ ^^ 196 Kelly V. Nichols, 17 R. I. las Hamlin v. Mansfield, 88 Me. 306; 19 L. R. A. 413. 131; White's Estate, 174 Pa. St. 197 Powers V. Codwise, 172 Mass. 042. 425; Temple v. Pasquotank Coun- ty, 111 N. C. 36; Booth v. Baptist Church, 126 N. Y. 215. RS7 LAW OF WILLS. ^' CHAPTER XXXV. CHARGES OF DEBTS AND LEGACIES UPON SPECIFIC PROPERTY. S747. General rule.— Legacies payable out of personalty. At common law, and independent of any statute, "the per- sonal estate is the primary fund for the payment of legacies, unless, from the will, it clearly appears that testator's inten- tion was otherwise."^ In the absence, therefore, of anything in the will to indicate testator's intention that a legacy shall be charoed upon the estate, or paid out of the proceeds thereof, the personalty is the fund devoted to the payment of legacies; and, in case of a deficiency in the personalty, the legacy abates in whole or in part.^ §748. Charging legacies upon realty — in general. This rule, however, did not prevent testator from charging legacies upon realty, but applied only in the absence of such intention. When testator's intention was clear, legacies could be charged upon realty either by express words or by clear im- 1 McQueen v Lilly, 131 Mo. 9; affirming 61 111. App. 539 ; McQueen Duncan v. Wallace/lU Ind. 169; v. Lilly, 131 Mo. 9; Bevan v. Davidson v. Coon, 125 Ind. 497; Cooper, 72 N. Y. 317 ; Hogan v. Geiger v. Worth, 17 O. S. 564. Kavanaugh, 138 N. 1.417; Lee v. 2 Wetitworth V. Read, 166 111. 139. Leo, 88 Va. 805. 888 LAW OF WILLS. plication.^ It need hardly be observed that testator could not, by anj wording- of his will, give legacies a pi*iority of pay- ment over his debts.^ §749. Words which charge legacies upon realty. When, upon consideration of the whole will, it is evident that testator's intention in charging a legacy upon some or all of his realty, the courts will enforce such an intention. Some very close questions of construction are presented, however, in determining when this intention exists, since the litigated cases generally arise where testator has disposed by will of more property than he possesses. A gift of testator's estate, "after" a certain legacy is to be paid, charges such legacy upon the realty thus disposed of.^ A charge may be created by a specific direction to take a certain sum "out" of the prop- erty devised to a named beneficiary.^ A legacy may be charged upon realty by a will which refers to a certain deed, where testator's intention to charge the legacy is apparent from the two instruments.'^ A provision that certain prop- erty, part of which is realty, is "to be used for the payment of my debts," clearly charges the debts upon such realty.^ §750. Implied charge of legacies upon realty. Legacies may be charged upon realty without the use of ex- press words where testator's intention so to do is clear from the will as a whole. A charge of a legacy upon real property may be implied from a direction to pay the legacy without sacri- 3 Dickerman V. Eddinger, 1G8 Pa. 6 Robert's Estate, 163 Pa. St. St. 240; Webster v. Wiggin, 19 R. 408; Albright v. Albright, 128 Pa. I. 73; 34 Atl. 990. See cases cited St. .381. in following sections. ^ Mortgage Trust Company v. 4 Webster v. Wiggin, 19 R. I. Moore, 150 Ind. 465. (The fact that 73; 34 Atl. 990. the deed was never delivered does 5 Atmore v. Walker (Del.), 46 not prevent the charging of the Fed. 429 ; Cunningham v. Cunning- legacy. ) ham, 72 Conn. 253; Davidson v. « Watts v. Watts, 38 0. S. 480. Coon, 125 Ind. 497 ; 9 L. R. A. 584 ; McQueen v. Lilly, 131 Mo. 9; Smith V. Cairns, 92 Tex. G67. LAW OF WILLS. 889 ficing the real estate if possible.^ A charge of a legacy upon real property is created by a poAver of sale for the purpose of paying such legacy/" and a direction to the executors to pay an annuity during the life of the beneficiary impliedly charges such annuity upon testator's entire estate.-^ ^ Where testator, by will, gives legacies in excess of the amount of his personal property, which fact is at the time known to him, and his will clearly manifests an intention th«.t such legacies shall be paid in full, it is held to manifest an in- tention to charge the legacies upon the realty.-^ ^ The i|;iiere fact that testator's personalty will not be sufficient to pay the legacies in full is said, however, in some cases, not of itself to show an intention to charge the legacies upon the realty.^ "^ This is especially true where legacies are charged specifically upon personalty ;^^ or where, at the execution of the will, tes- tator does not know of the deficiency of personalty.-^ ^ An intention not to charge the legacy upon the specific realty is also evident where the specific realty is excepted from the general power of sale to raise money for the legacy,^ ^ or 9 Price V. Price, 52 N. J. Eq 326. 10 Clark v. Marlow, 149 Ind. 41 Stevens v. Flower, 46 N. J. Eq. 340 Dean v. Lowenstein, 6 0. C. C. 587 Blake's Estate, 134 Pa. St. 240 n Hunt V. Hayes, 19 Ohio C. C 151 ; 10 Ohio C. D. 388. 12 Cross V. Kennington, 9 Beav 150; Elliot V. Hancock, 2 Vern 143; Miller v. Cooch, 5 Del. Ch 161 ; O'Brien v. Dougherty, 1 App D. C. 148; Duncan v. Wallace, 114 Ind. 169; Hoyt v. Hoyt, 85 N. Y 142; McCorn v. McCorn, 100 N. Y 511; Briggs v. Carroll, 117 K Y 288. affirming 50 Hun, 586 ; Town send V. To^^^^send, 25 0. S. 477 Dean v. Lowenstein, 6 Ohio C. C 529: Pryer v. Mark, 129 Pa. St 529. 13 Bishop V. Howarth, 59 Conn. 455; Colder v. Chandler, 87 Me. 63; Blouin v. Phaneuf, 81 Me. 176; Lawton v. Fitchburg Savings Bank, 160 Mass. 154; Turner v. Gibb, 48 N. J. Eq. 526. i4Hibler v. Hibler, 104 Mich. 274. (In this, ease other legacies were specifically charged upon realty. The legacy in question was charged specifically upon personalty and was said to be in consideration of what was justly due the legatee. It was held that this did not charge the legacy upon the realty.) Smith V. Mason, 89 Va. 713. i'5 Bishop V Howarth, 59 Conn. 455. 16 .lohnson v. Home for Aged Men, 152 Mass. 89. 890 I^^W OF WILLS. where it appears from the will that any deficiency of legacies is to be divided pro rata among the legatees.^" 17 §751. Direction for support and maintenance as a charge. A devise is often given to one coupled with a direction that ■he shall support and maintain another. The effect of such a provision is usually very difficult to determine. It may im- pose a personal charge upon the devisee merely, it may be a charge upon the property devised, it may be both a personal charge and a charge upon the property, it may be so worded as to amount to a trust, or it may be a condition subsequent.^ ^ Where it appears from the will that testator merely recom- mends that the devisee named shall support and care for an- other, no charge is imposed upon the realty thus devised, nor upon the devisee individually.^^ So where testator gave his mother an annuity for life, a direction that she live with his widow was held not to charge her support upon testator's es- tate.^^Where the direction to care for the designated person calls for personal care and attention, and can not be complied with by simply paying him a sum sufficient to support him, the support and care of the person named is personal to the devisee, and is not a charge upon the real estate.-^ Where 17 Bragaw v. Bolles, 51 N. J. Eq. mendation or a request"). Well- 84. (In this case the testator gave ons v. .Tordan, 83 N. C. 371; Tay- certain pecuniary legacies, but died lor v. Lanier, 7 N. C. 98; Arnold intestate and without heirs as to v. Arnold, 41 S. C. 291. his realty. Although his personalty 20 Martin v. Goode, 111 N. Car. was insvifficient to pay the legacies, 288. it was held that the legacies could 21 South Mahoning Township v. not be charged upon the realty, as Marshall, 138 Pa. St. 570. (A de- his intention was clearly otherwise. vised a farm to B whom he made The realty, therefore, escheated to C's guardian, C being an imbe- the state.) cile, though strong and active. The 18 See Sees. 678, 612. will provided that C should live on 19 Perdue v. Perdue, 124 N. C. the farm with B "who should cafe 161; (the expression in this case for him in his actual wants." It was, "my will and desire that [the was held that this did not charge devisee] shall take care of" certain C's support upon the land, as the relatives named. The court said of care contemplated was entirely per- these words, "It is only a recom- sonal in its nature.) LAW or WILLS. 891 the direction that a devisee shall support a named person is imperative, and not precatory, the support of such other is held to be a charge upon the land devised.^^ The courts, how- ever, do not always distinguish carefully between a charge upon the realty for the support of one and a gift in trust. Such a gift is. spoken of as "a trust, or a charge in the nature of a trust."^^ For practical purposes, as regards the enforce- ment of such a claim, there is but little difference between the tAvo. However, where the devisee is given an estate for life if he supports his sister, and is authorized to dispose of the fee, if necessary for her support, it was held that by exercising such power he passed the fee free from the charge for the sup- port of the sister.^'^ 22 Bell V. Watkins, 104 Ga. 345. (The expression in the will was: "I further will that my grand- daughter .... do receive a sup- port during her lifetime or until she should marry." The court said that these words were ''neither prec- atory nor recommendatory.") Hun- ter V. Stembridge, 12 Ga. 192; Clark V. Marlow, 149 Ind. 41; Crossett v. Clements, — (Miss.) (1980), 7 So. 207; Cady v. Cady,67 Miss. 42,5 ; Outland v. Outland, 113 N. C. 138. (A gift to E & C, with a provision "in consideration of the property I have given to E & C, they are to have the care of and sup- port J, and it is my will that he shall have his choice which of them he will live with and the other pay half of the expenses," was held to create a charge upon the land de- vised to E & C. Citing and follow- ing Laxton v. Tilley, 66 N. C. 327 : Carter v. Worrell, 96 N. C. 358; Thayer v. Finnegan, 134 Mass. 62; Meisenheimer v. SifTord, 94 N. C. 592. (A devise to A "provided" he would support B was held to create a charge upon the land devised.) Gray v. West, 93 N. C. 442; (the provision creating the charge was "Arey Gray is to have her support out of the land.") Tope v. Tope, 13 Ohio, 520. A provision that testator's widow shall have her maintenance from the farm devised to testator's son, and shall have the use of the house upon such farm during her life, docs not oblige her to reside upon such farm, but she may receive a sum equal to the value of the use of the house and the cost of her sup- port upon the farm if she resides elsewhere. Tope v. Tope, 13 Ohio, 520 ; Bank of Florence v. Gregg, 40 S. C. 169. A devise to A of "all the residue of my estate both real and personal and to his care the protection and support of my daugh- ter C during her natural life" was held to create a charge upon the realty which could be enforced in equity, even in the hands of a bona fide holder. Rivers v. Rivers, 36 S. C. 302. 23 Bell V. Watkins, 104 Ga. 345. 24Huey V. Thomas, 23 O. S. 645. 892 LAW OF WILI.S. §752. Direction that devisee pay money to another as a charge. Devises are often made to one with the direction that he pay a certain sum to another. Whetlier tJie sum thus to be paid is made a charge upon the land by such gift is a question involving some difference of judicial opinion; but it can, in general, be determined by the same principles as those which determine whether a direction to support is a charge upon property devised or not. A gift to one, subject to the pay- ment of a specified amount to another, is held to make the payment of such amount a charge upon the land devised. ^^ A charge upon the realty of a sum to be paid by the devisee is clearly made by a direction that the sum be paid out of the proceeds of the property devised.^*^ The death of the benefi- ciary after the legacy is payable by the terms of the will does not release the devisee from such payment. ^^ But a provision that the devisee. A, shall, on B's arriving at 18, pay B $1,000 in land situate where A can buy it, does not create a charge upon the land devised to A.^* In order to constitute a charge upon the land, the devise must be to the person who is to fur- 25/^1 re Williams, 13 Rep. 31G; Lloyd's Esate, 174 Pa. St. 184; Henry v. Griffis, 89 la. 543. (A Wise's Estate, 188 Pa. St. 258. (A legacy was given to the daughter charge was created by a gift of a and a devise to sons with a pro- farm to A, and a direction that 4 vision that, if the personal prop- "is to pay in consideration for the erty was insufficient to pay the leg- farm bequeathed to him by me the acy "the boys is to pay enough balance to make the fire daughters to make the amount." This was held equal.") Lefevre's Estate, 171 Pa. to create a charge upon the realty.) St. 404; Block v. Mauck (Tenn. Ch. Curd V. Field (Ky.), 45 S. W. App.), 52 S. W. 689. 92; Whitehouse v. Cargill, 86 Me. 26 Hunkypillar v. Harrison, 59 60 ; Buchanan V. Lloyd, 88 Md. 642 ; Ark. 453; Lloyd's Estate, 174 Pa. Chase v. Warner, 106 Mich. 695; St. 184; Semple's Estate, 189 Pa. 64 N. W. 730; Tucker v. Moye, 115 St. 385. N. C. 71; Hunt v. Wheeler, 116 N. 27 McDowell v. Stiger (N. J.), C. 422; Allen v. Allen. 121 N. C. 42 Atl. 575. 328 ; Wyckoff v. Wyckoflf , 49 N. J. 28 Cocmrad v. Coonrad, 6 Ohio, Eq. 344, affirming 48 N. J. Eq. 114. Hence a purchaser from A 113; McDowell v. Stiger (N. J.), takes the realty free from the 42 Atl. 575 ; Clyde v. Simpson, 4 O. charge ; and is not bound to see S. 445; Nellons v. Truax, 6 O. S. to the application of the purchase 97; Weiler's Estate. 169 Pa. St. money. 66 ; Pryer v. Mark, 129 Pa. St. 529 ; LAW OF WILLS. 893 nish the support or make the payment. Thus a direction, "the hahmce, if any, to be paid by my three sons in equal j)ro- portions," referring to the payment of the legacy already given, does not charge the legacy upon real estate given to a trustee in trust for one of the sons and his family.^^ Gifts of this sort are held to impose charges on the land de- ri'sed, rather than to constitute conditions precedent, when there is no gift over in case of failure to pay the beneficiary designated. In cases of doubt the presence or absence of a gift over is held to determine whether the will creates a charge or imposes a condition precedent.^*^ And where it is left to the honor of the devisees to pay or withhold annuities, no in- tention is manifested to make such annuities a charge upon the realty devised.^^ §753. Valuation of property devised. A devise to one of specified land, for a certain amount, where construed as an option to the devisees named to pur- cliase land at that price, is held, in some cases, to make a charge upon such land of the amount indicated.^^ But the valuation of the property devised, made by the testator in his will, may be simply inserted for the purpose of indicating the proportionate value of the estate which he wishes each devisee to have. Where such a provision is inserted, and it does not amount to an option to devisee to purchase, the sums named are not legacies charged upon the realty.^^ 29 Cissell V. Cashell, 76 Md. 330. ate a charge upon the real estate 30 Allen V. Allen, 121 N. C. 328; devised. In this case, Erwin v. Er- Whitehead v. Thompson, 79 N. C. win, 115 N. C. 366, in which it was 450 ; Patterson v. Patterson, 63 N. held under a similar provision that, C. 322 ; Woods v. Woods, 2 Jones' as a payment was a condition pre- Eq. 420; Erwin v. Erwin, 115 N. C. cedent, the sum to be paid could 366, is criticized as being a "mere not be charged upon the land, was dictum." criticized and not followed.) 31 Larkin v. Larkin, 17 R. I. 461. 33 Knaub's Estate, 144 Pa. St. 32Wyckoff v. Wyckoflf, 49 N. J. 322. (A devise of a farm to A "at Eq. 344, affirming 48 N. J. Eq. 113; ,$5,000, and another tract to B it Weiler's Estate, 169 Pa. St. 66. ,$2,650 and $5 to the daughter," was (In Allen v. Allen, 121 N. C. 328, a held not to be a charge, of the sums similar provision was held to ere- named, upon the realty devised for 894 LAW OF WILLS. §754. Personal liability of devisee. It is sometimes important to determine whether a devisee who accepts a devise given to him upon condition of his pay- ing specified amounts, or his furnishing support and main- tenance for certain persons, merely takes subject to a charge upon property devised, or whether a personal liability is im- posed upon the devisee. This question becomes of especial im- portance when it develops after the election of the devisee to take the property, that the amount devised is insufficient to pay the amounts which he agreed 'to pay. The election of the dev- isee to take under the will makes, in effect, a contract on his part; and the provisions of the will must, therefore, be looked to, to determine the nature of his liability. The general rule laid down is that, where the will shows an intention of imposing a personal liability upon the devisee, he becomes personally liable upon accepting the devise.^^ A direction that the legatee of testator's interest in a certain business should pay testator's debts was held to mean all his debts, and not merely those secured by mortgage on the prop- erty invested in the business.^^ So where land was devised to one in fee simple, upon condition of paying certain legacies to certain designated persons, and the devisee accepted the de- vise and died intestate before paying all the legacies, and his the benefit of the personal estate 254; Millington v. Hill, 47 Ark. of testator which was not disposeil 301; Bishop v. Howarth, 59 Conn, of by will.) Shenk v. Shenk, 150 455; Porter v. Jackson. 95 Ind. Pa. St. 521. (A devise to A of 210; Gilbert v. Taylor, 148 N. Y. lands "valued and appraised at 298; McEwen v. Fuller, 17 O. S. $2,000," with a provision that the 288; Case v. Hall, 52 0. S. 24; widow should receive one-third of Sauer v. Mollinger, 138 Pa. St. 338. the yearly interest at the valuation ("If the devisee in such case accepts made in the will, and that the the devise, he becomes personally brothers and sisters of the testator bound to pay the legacies; and he should have the first option of pur- becomes thus bound, even if the chasing at the valuation named land devised to him proves to be should he wish to sell, it was held less in value than the amount of not to be a charge upon the prop- the legacy.") Brown v. Knapp, 79 erty devised of the sum of $2,000 N". Y. 136. for the benefit of the other chil- 35 Bishop v. Howarth, 59 Conn, dren.) 455. S4 Williams v. Nichol, 47 Ark. LAW OF WILLS. 895 real estate descended to the persons to whom the legacies were payable, it was held that the personal estate of such devisee was liable for the legacies as upon a debt which he had as- sumed and agreed to pay.^^ In no case, of course, does the devisee become personally liable unless he accepts the de- vise.^^ But, where the direction either directly or impliedly shows that the devisee is required to pay the legacy out of the proceeds of the property devised to him, he is not held liable in excess of the amount of such property.^^ Where the devise or bequest is merely of the net proceeds of testator's interest in a firm, the beneficiary does not become personally liable for the debts of the firm if they exceed the assets.*^^ After the beneficiary has made his election lo take the prop- erty devised to him, and to assume the personal liability im- posed upon him, he can not repudiate the devise and thereby re- lease himself from the personal liability.^^ §755. Effect of residuary clause blending realty and personalty. — Charge of debts and legacies on realty. In many cases where a testator, after giving certain legacies and making disposition of specific articles, gives the rest, or residuum, or remainder (or employing some expression of similar import), to the residuary legatee, such a form of gift is held, to show testator's intention in case of a deficiency in personalty to charge the unpaid legacies upon the realty devised by such a residuary clause.^^ In order to 36 Case V. Hall, 52 0. S. 24. 4o Bird v. Hawkins (N". J.), 42 37 Wyckoff V. Wyckoflf, 48 N. J. Atl. 588. Eq. 113; also 49 N. J. E. 344. ^i /n re Boards (1895) .1 Ch. 499 : 38 Hunkypillar v. Harrison, 59 64 L. J. Ch. N. S. 305; In re Ark. 453; Pitkin v. Peet, 87 lo. 268. Bawden (1894), 1 Ch. 693; Cameron (This is the official opinion on the v. Harper, 21 Can. S. C. 273; Walk- final hearing. The original opinion er v. Atmore, 50 Fed. 644 ; Readman was reported in 50 N. W. 282, but v. Ferguson, 13 App. D. C. 60; was subsequently withdrawn, and Brooks v. Brooks, 65 111. App. 326: was never published officially.) Reid v. Corrigan. 143 HI. 402, re- Crawford V. McCarthy, 159 N. Y. versing 40 111. App. 404; American 514. Cannel Coal Co. v. Clemens, 132 39 Robertson v. Junkin, 26 Can. Ind. 16.3: Newcomb's Will. 98 la. S. C. R. 192. 175: 67 N. W. 587; Peebles v. Ack- 896 LAW OF WILLS. charge the general legacies upon the real estate devised Lj the residuary clause, such residuary clause must blend real and personal property into one general residuum.*^ Where from the context of the whole will the expression "balance of my estate, real, personal and mixed," was so used that the word "balance" referred exclusively to the personal property it was held that general legacies were not charged upon this real estate.^ ^ So a gift of all testator's real property and all the rest and residue of his personal property does not charge legacies previously given by the will upon the real estate.'*'* In some states, however the mere use of the residuary clause blending realty and personalty into one fund does not, of itself, show testator's intention to charge general legacies upon the real estate devised by such a residuary clause*^ In such jurisdic- tions additional circumstances are necessary to show testator's intention to charge the legacies upon the realty. Thus a life er, 70 Miss. 356; McQueen v. Lilly, 131 Mo. 9; Carter v. Gray (N. J.), 43 Atl. 711;; Hoboken First Bap- tist Church V. Syms, 51 N. J. Eq. 363; Turner v. Gibb, 48 N. J. Eq. 520; Hassel v. Hassel (2 Dickens), 527 ; Townsend v. Townsend, 25 0. S. 477; Moore v. Beckwith, 14 0. S. 129; Long-ley v. Stump, 11 W. L. B. 247; Markley's Estate, 148 Pa. St. 538; Dennis' Estate, 169 Pa. St. 493; Collins v. Reid, — (Pa. St.) — ; 23 Atl. 1108; Bird V. Stout, 40 W. Va. 43. This rule applies although the residuary devise may lapse, testa- tor's intention to charge the specific legacies upon the residuary property not being dependent upon a valid devise of such property. Bennett's Estate, 148 Pa. St. 139. Where the residuary clause failed and the personalty, if properly ad- ministered, would be sufficient to pay all legacies, it was held that testator did not intend to charge legacies upon the realty. • Allen V. Mattison ( R. I. ) , 39 Atl. 241, 3 Prob. Rep. Ann. 428. [Hence, if the executor wastes the person- alty, the realty could not be re- sorted to.] 42 See cases cited in preceding note. 43 Allen V. Rudell, 51 S. C. 366 (distinguishing Moore v. Davidson, 22 S. C. 92 and Jaudon v. Ducker, 27 S. C. 295, a case in which the residuary clause was so worded as to blend realty and personalty). So, McMahon v. McGuire, 6 Ohio C. C. 303. 44 In re Jamieson, 18 R. I. 385. 45 Stevens v. Gregg, 10 G. & .J. (Md.), 143; Power v Jenkins, 13 Md. 443; White v. Kaufmann, 66 Md. 89; Pearson v. Wartman, 80 Md. 528; McCorn v. McCorn, 100 N. Y. 511; Brill v. Wright, 112 N. Y. 129; Morris v. Sickly, 133 N. Y. 456. LAW OF WILLS. ^^"^ estate in the first taJ^er, with power to dispose of tlie personal property absolutely with remainder over to certain designated persons, and a gift of a legacy payable upon the determination of the life estate was held to show testator's intention to charge tlie legacy upon the realty, since under the power of disposi- tion of personal property in the first taker there might be no personal estate at the termination of the life estate, no matter how large it may have been at testator's death.''^ Extrinsic evidence of surrounding circumstances may be used to show testator's intention to charge the legacies upon the realty."^^ Thus a residuary clause blending realty and personalty to- gether with the fact that the legacies were largely in excess of the personalty at the time of the execution of the will, were held to show testator's intention to charge the legacies upon the realty.'** §756. Effect of blending realty and personalty.— Exoneration of personalty. A residuary clause in which realty and personalty arc blended shows testator's intention that the legacies should be charged upon the realty if the personal property is insufficient, but it does not, without further evidence of testator's inten- tion, exonerate the personalty from the pa.^anent of the lega- cies and cast their pavment upon the realty. The realty should be used only to pay any deficiency remaining after the person- alty has been exhausted.-'^ So where the residue after the pay- ment of certain lea^acies is given to testator's heirs or is by any form of words disposed of, as in case of intestacy, the realty is charged with the payment of the legacies whether the heirs are to be considered as taking by descent or by devise. .6 O^le V. Tavloe. 49 Md. 158. McCorn v. MeCorn. 100 N. Y^ 511 ; 47 Brill V. Wright, 112 N. Y. C_orwine v. Corwine, 24 N. J. Eq. • ''!;Bri..s V. Carroll, 117 N. Y. ".'o /n re Boards (1805), iCh 499 . " 288; 50^Hun, 58G ; Cross v. Kea- G4 L. J. Ch >. S. 305 : MUler v. ninmon. 9 Beav. 150; Duncan v. Cooch, 5 Del. Ch 101 Wallace, 114 Ind. 109: Davidson ^ J-^c^^Ios v. Ackor. .0 M.ss. 3oG , V. Coon, 125 Ind. 497: 9 L. R. A. Root's ^^.ll, 81 Wis. 2G3. 584; Hoyt v. Hovt, 85 N. Y. 142 -. 398 ^-^^ o^ WILLS. 8757. What words show testator's intention to blend realty and personalty. In most states which recognize the rnle already given, the use of the word "residne" or ''rest," or some similar expression, is held to be sufficient to show testator's intention to blend real and personal property.^ ^ So the expression "my real and personal estate not herein disposed of" shows snch intention.^- Where the residnary clanse shows testator's intention not to charo-e previous legacies upon the real estate, such intention will of course be given effect and will prevail over the prima facie presumption in the absence of any express intention that the legacies were charged upon the real estate.^^ §758. Charging legacies upon realty specifically devised. Realty specifically devised can only be charged with lega- cies either by specific provision in testator's will, or by clear and unmistakable implication from the whole will, read in connection with tlie surrounding circumstances.^^ "Si>ecific legacies and specific devises are not chargeable with the pay- ment of demonstrative or general legacies unless made so ex- pressly or by clear implication."^^ Thus in some jurisdic- tions it is held that a legacy greatly in excess of testa- tor's personal estate, together with a specific devise of so much 51 See cases already cited in Sec. as to show an intention to charge 755, and Bench v. Biles, 4 Madd. the legacies upon the proceeds of the 187; Greville v. Browne, 7 H. L. realty.) Distinguishing Smith v. Cas. 689; Clarke v. Clarke, 46 S. C. First Presbyterian Church, 11 C. E. 230. Green, 132; Smith v. Mason, 89 Va. 52 /n re Bawden (1894), 1 Ch. 713 (a residuary devise of realty 693; Hassel v. Hassel, 2 Dickens, and personalty, blended expressly 527. for the purpose of seF-ing and vest- 53 Johnson v. Conover, 54 N. J. ing, was held not to charge the Eq. 333. (A direction to convert legacies upon the realty) . the real property into personal prop- ^4 Hibler v. Hibler. 104 Mich. 274 ; erty for the purpose of distribution Johnson v. Poulson, 32 N. J. Eq. among certain designated benefic- 390; Bevan v. Cooper, 72 N. Y. iaries, and a residuary devise of 317. the proceeds of the real estate and ss Hibler v. Hibler, 104 Mich, the personal property separately, 274. was held not to be such a blending LAW OF WILLS. 899 of testator's real property to others that the residue is entirely inadequate for the payment of legacies, shows testator's inten- tion to charge the legacy upon the real property specifically devised.^^ A gift of an annuity to testator's widow and a devise of his realty, one-third to widow and two-thirds to others, "saving and excepting" the gifts to the wife, was held to show testator's intention to charge the annuity upon the two-thirds of the realty devised to others.^^ But a residuary clause, blending realty and personalty does not charge specific legacies upon realty specifically devised,^^ nor does a charge of legacies in general terms upon all of testator's real and personal estate show his intention to charge realty siDccificall^ devised.^^ Where testator devised certain realty to his widow during widowhood with a gift over if she re-married, the widow to have an annuity, it was held that the annuity was not charged upon the land thus devised over.'^° Where a leg- acy is specifically devised upon land which is devised to an- other, the lapse of such devise does not pre^'ent the legacy from being charged upon such land,"^ nor is the lien thus created by will divested by a failure to specify the lien in a deed given pursuant to a sale of the premises in partition proceed- ings.^" Where an annuity is charged upon the land devised to two devisees, the charge of such annuity is not modified by subsequent codicil changing the proportions of the devisees of such land;^^ but one of such devisees may by his will, de- vising his share for the payment of the annuity, the residue to a specified person, charge the annuity jirimarily upon his 56 Bank of Ireland v. McCarthy 627; Todd v. McFall. !)(; Va. 754 (H. L.) (1898), A. C. 181, affirm- especially where the real e.state spe- ing C. A. 1894, 1 Ir. Rep. 86. eifically devised was executed from 57 Kinkele v. Wilson, 151 N. Y. the operation of a power of sale of 269. realty in order to pay the legacy; 58 Peet's Estate, 99 lo. 314; 68 Johnson v. Home for Aged Men. N. W. 705; Phillips v. Clark, 18 152 IMass. 89. R. I. 627. 00 linias v. Neidt, 101 la. .34*^ ; 59 Conron v. Conron, 7 H. L. Cas. 70 N. W. 20.3. 168 ; Davenport v. Sargeant, 63 N. ei Cady v. Cady, 67 Miss. 425. H. 538; Hill v. Toms, 87 N. C. 492; C2 Nesbit v. Wood (Ky.) (1900), Worth V. Worth, 95 N. C. 2.39: 56 S. W. 714. Kitchell V. Young, 46 N. J. Eq. bs Redfield v. Redfield, 126 N. Y. 506; Phillips v. Clark, 18 R. I. 466. 900 LAW OF WILLS. share.^* A charge upon a specific tract in favor of a bene- ficiaiy is not a charge upon the interest of such beneficiary in such tract.^^ 8759. Charging legacies upon personalty specifically bequeathed. Testator may also by will charge a legacy upon personalty which is specifically bequeathed to others.'^'^ Thus a gift of property invested in a certain business ''after payment of my debts which are to be paid from said personal property," was held to charge the payment of all of testator's debts upon such personal property ;'^^ and a gift to A of a certain portion of testator's estate free of all legacies and a gift to others of the rest of testator's estate after pa^mient of such legacies, charges the legacies upon the property bequeathed to such others.*^* So a gift of the residuum of 'testator's estate to A, with a provision that A shall pay the general indebtedness of a certain corporation as well as a mortgage owing by it, charges such residuum with the payment of such debts.^^ A charge of any deficiency in one fund at the time of the division upon the other fund does not authorize the appropriation of a part of such other fund after the final division to make up a deficiency in the first fund caused by depreciation in in- vestments,'*' nor can a deficiency in one fund expressly charged 64 Brown v. Hord (Kt.)< 15 S. W. 874; 12 Ky. Law Rep. 916. 65 Southworth v. Sebree, — Ky. — , 1897 ; 41 S. W. 769. 66 Wethered v. Safe Deposit and Trust Co. 79 Md. 421 ; Hale v. St. Paul, 54 Minn. 521 ; Coane v. Ear- ned, 51 N. J. Eq. 554; Woodward V. James. 115 X. Y. .340: Fargo v. Squiers, 154 N. Y. 250; Addeman V.Rice, 19 R. I. 30, 1896: 31 Atl. 429; Webster v. Wiggin, 19 R. I. 73; 34 Atl. 990; Patten v. Herring, 9 Tex. Cir. App. 640. Prima facie rules for determining out of what part of testator's property his debts are payable are, of course, subject to be varied by specific directions in his will. Such directions can not, of course, go to the extent of pre- venting the payment of his debts. If testator provides for the payment of his debts, he may charge such payment ujjon property bequeathed or devised to the exoneration of oth- er property at his discretion. In re Campbell (1893), 2 Ch. 200; Parker v. First National Bank, 12 O. C. C. 287 ; 1 O. Dec. 549. 67 Bishop V. Howarth, 59 Conn. 455. 68 Coane v. Harned, 51 N. J. Fq. 554; Woodward v. James, 115 N. Y. 346. 69 Cowherd v. Kitchen, 57 Xeb. 420. 70 Weston v. Massachusetts Gen- eral Hospital, 169 Mass. 76; 47 X. E. 444. LAW OF WILLS. 901 on a second be taken out of a third.'^^ A charge of certain debts and legacies upon an annual income is held to mean that each year's income must be paid as it accrues, less such debts and legacies. Hence the income can not be accumulated to meet future payments, even if in some years the debts and legacies payable will exceed the income.^^ §760. Enforcement of lien of legacy. Where a legacy is specifically charged upon certain realty this lien may be enforced under some system of settlement of decedent's estate or by sale of realty under proceedings in the Probate Court. Unless the right to enforce such liens is by statut-e expressly or impliedly taken away from equity courts and vested exclusively in probate courts, equity courts may, in the exercise of their ordinary jurisdiction, enforce such liens at the instance of the legatee.'^^ Where a legacy is charged upon land which is described as being the property devised to a given beneficiary, the legacy is held to be charged upon the fee of such land although the first taker received only a life estate-'''^ So where a life estate was devised to one upon condition that the income from such estate be applied to pay certain legacies in full and the life tenant died before the lega- cies were paid it was held that the legacies were charged upon the fee of such property.'^^ Where there is no question as to the validity of the lien, the devisee can not object to a decree declaring the legacy a lien on the ground that the court erred in determining the priority of liens, the adversary' lien-holder himself making no objection.'^'^ The question whether a lien imposed by will in favor of a legatee may be subsequently di- vested by judicial action by which the devisee's interest in the realty is sought to be subjected to the payment of claims against him, and the question whether the lien of the legacy is there- TiMorse V. Macrum, 22 Oreg. 229; Breck v. Parkes (Ky.) (1896), 37 237. S. W. 271. '2 Hale V. St. Paul, 54 Minn. 421. ^5 Pendleton v. Kinney, 65 Conn. 73 Smith V. Jackman, 115 Mich. 222. 192. 76 McFarland v. McFarland, 177 74 Miller v. Miller, 100 Ky. 37; III. 208. 902 LAW OF WILLS. bj transferred to such fund, are questions in the law of real property, the discussion of which would carry us far beyond the domains of our subject. Whether the lien is divested or not, it is held that the legatee may, if he choose, follow the fund."^' If the purchase price is unpaid, the legatee may enforce pay- ment of the legacy out of the unpaid purchase price.* In Pennsylvania it has been held that a sale on execution against the devisee cuts off all liens created by devise except (1) liens created for a permanent provision for testator's wife and children, (2) incumbrances which from their nature readily permit of a valuation, (3) liens which testator evi- dently intended to run with the land."^^ §761. Enforcing personal liability of devisee. Where by accepting the devise, the devisee becomes person- ally liable for the payment of the legacies and an action may be maintained against him at law.'^ Where the devisee has conveyed his interest in realty which was subject to the lien of a legacy an action at law may be maintained against the grantee of such devisee, who agreed to pay such legacy and retains in his hands sufficient purchase money for that pur- pose.^^ The right of a beneficiary to be supported by a de- visee is not waived by his offer to release his rights for a cer- tain sum if paid within a specified time ;^^ it may, however, be waived for the time being where the right is merely a right to support, by accepting support from others.^^ 77 Phillips V. Clark, 18 R. I. 627. It was, therefore, cut off by a sale (In this case it was held that the on execution directed against the lien was not divested.) last beneficiary. Washburn's Es- *Elstner v. Fife, 32 O. S. 358. tate. 187 Pa. St. 162. 78 Stewartson v. Watts, 8 Watts 79 Miller v. Lake, 24 W. Va. 54.). (Pa.), 392: Heister v. Green, 48 Pa. See Sees. 751, 754. St. 96; Helfrich v. Weaver, 61 Pa. so Bird v. Stout. 40 W. Va. 43. St. 385; Pierce v. Gardner. 83 Pa. si Hunt v. Wheeler, 116 N. C. St. 211; Bryan's App. 101 Pa. St. 422. 389: Rohn v. Odenwelder, 162 Pa. sa Dickson v. Field, 77 Wis. 439: St. 346. Ihus a devise of the in- 9 L. R. A. 537. (A woman's right come of certain realty to a daughter to receive support from a devisee for life, and then a specific legacy was held to be waived by her re- to a granddaughter and the residue ceiving such support from her hus- to a named beneficiary, was held band, but was held to revive upon not to be a continuing lien of realty. the death of such husband.) LAW OF WILLS. ^^"^ §762. General rules as to charge of testator's debts. The subject of the payment of debts of testator out of his estate involves the whole of the subject of the settlement of decedent's estate, and can be discussed in this work only so far as the specitic provisions of testator's will affect the subject. Originally the common law did not permit lands to be charo-e'd with general debts either during the lifetime of the owner or at his death. The debts of the living man might bo enforced out of his personal property, or by execution against his person. The debts of the decedent could be enforced only out of his personal estate unless, by his will, he specifically charged debts upon his real estate, and at this time wills of realty existed only by local custom. The necessities of trade and commerce forced a series of statutes provided for taking a part or all of the real property of a debtor for the pa:>mient of his debts.* It became established then, that debts of record and debts upon specialties could be enforced against the heir of the debtor to the extent of the assets received by him from his ancestor. It was possible, however, for the ancestor to defeat the payment of all debts not liens upon his realty by devising it to some one other than the heir.t These rules of the common law have been swept away by a series of statutory enactments until, with the exception of cer- tain specified exemptions, homestead rights and the like, a debtor's entire estate both real and personal may be taken for his debts while he lives and is charged with them at his death. At his death his debts under modern statutes become a lien upon his realtv, which lien can not be divested by devising the realtv to one not an heir, nor by sale by the heirs. It is di- vested either by actual payment of all testator's debts or by sale under authority of the law for the purpose of paying such debts, usually by proceeding brought for that purpose by the executor or administrator in the court of probate powers before which decedent's estate is in process of settlement or m whose jurisdiction the realty to be sold is situate. * Blacks. Com., Bk. II, 160-162. t Blacks. Com., Bk. II, 244. 904 LAW or WILLS. Under common law rules the question whether a will charged debts upon the realty or not was a very important and vital one to the creditors, since without some such provision the debts could not be collected in case of deficiency in personalty. Under our modern statutes, this subject is usually of no practical im- portance to creditors, since testator can not so dispose of his property by will as to prevent the payment of his debts out of his estate. In some eases, however, even under modern statutes, the question whether testator charged his real estate specifically with the payment of his debts may be a very important one for the creditors. Thus under our modern statute a time limit is set within which debts must be presented to the executor or administrator. After the expiration of tliis time the personal representatives may with safety settle the estate and distribute the proceeds, and after such distribution the extent to which the creditors of the testator may follow the proceeds of his estate into the hands of the legatee or devisee depends upon the provisions of the statute. In some cases where the creditors have delayed so long that, under the law, they are unable to enforce their liens upon the estate of the decedent, a specific provision in his will, charging the debts upon the real estate, may still protect their riglits.^^ The usual practical importance of the question whether a will charges debts upon the realty or not remains in determin- ing the respective rights of those who would take personal property of the decedent and those who would take in the real property whether under the law or by the will as between them- selves. Under modern statutes they have, apart from certaia statutory exemptions, like homestead rights, no rights as against testator's creditors where property devised was neces- sary for the payment of testator's debts. As between them- selves, however, in case the property of testator is insufficient to pay his debts and leave a surplus, it is very important to determine whether the debts are to be paid out of the realty or personalty. In the absence of any specific provision in the will, testa- tor's debts are payable primarily out of his personal property ; 83 Clift V. Moses, 116 N. Y. 144. LAW OF WILLS. • ^^ his realty may be resorted to only in case of a deficiency in personal property.«^ Where the income of the realty is de- vised in trust, the income can not be taken for testator's debts until the personalty is exhausted.«^ Testator may, of course, change this order of paying his debts, as long as he does not interfere with the rights of his .creditors, and may charge some, or all of his realty with the payment of his debts to the exon- eration of his personalty. §763. Exoneration of personalty from debts. If testator leaves sufficient property devoted te) the payment of his debts, he may provide that certain personalty shall pass to the legatees free from any charge or contribution for the payment of his debts-^*^ Thus a gift of one-third of the re- siduum of testator's estate "free and clear from the payment ot all debts, legacies, expenses of administration and other charo-es," exonerates such third from the payment oi these items and charges them upon the other two-thirds of the resid- 07 uum. Testator's intention to exonerate a bequest from his debts may be inferred from the context of the will. Thus a o-ift of a certain fund for the support of a designatea person has" been held to be exonerated from payment of tes- tator's debts, it being testator's evident intention that m ail events this support should be funushed.«« A bequest to testator's widow in lieu of her dower has been held to be impliedly exonerated from the payment of testator s debts «^ Where testator attempted to pass his ovm residuary estate and that over which he had power of appointment by a bequest which was valid as to his own property, but m vio- lation of the rule against perpetuities as to the fund over s. Morse v. Hayden, 82 Me. 227 ; «. Addeman v Rice, 19 R. I. 30, Newport v. Newport, 5 Wash. 114. 1895: 31 Atl. 429. S5 Newport v. Newport, 5 Wash. bs Patten v. Herring, 9 Tex. Cn. App. 640. , , T o nr; >J Y soCalder v. Curry, 17 R. I. CIO. 86 Woodward v. James, 115 JN. X. 346; Fargo v. Squiers, 154 N. Y. See Sec. -76. 250; Addeman v. Rice, 19 R. I. 30; 31 Atl. 429: Patten v. Herring, 9 Tex. Cir. App. 040. 906 LAW OF WILLS. which he had power of appointment, the court will carry his intention into effect as nearly as can be done by applying the fund over which he had the power of appointment to the payment of specific bequests, leaving testator's property for the residuary beneficiaries.^*^ §764. What words charge debts upon realty. The question to be determined, therefore, is that of the testa- tor's intention. One of the clauses presented most frequently for adjudica- tion is a direction to the executor to pay testator's debts out of his estate. This clause is found in most wills, and under our modern statutes is considered as nothing more than a direction to executor to do what the law would compel him to do in any event. It, therefore, does not charge the debts primarily upon the real ©state to the exoneration of personalty, though if the personalty is insufficient, it will operate to charge the debts on the realty.^^ A direction to mortgage realty to meet the debts thereon is held to authorize a mortgage only to pay off liens on such realty.'^- Even where testator charges certain realty with the payment of his debts it is held not to make the realty the primary fund for their payment or to exonerate the personalty, unless the will further shows his intention so to do-^^ It is held contrary to this view, that where the debts are 90 Fargo v. Squiers, 154 N. Y. In re Bate, L. R. 43 Ch. Div. 600. 250. This case was disapproved by In re 91 Ames V. Holderbaum, 44 Fed. Salt, 1895, 2 Ch. 203; 13 Rep. 499, 224 (To.) ; Iowa Loan & Trust Co. which followed In re Stokes, 07 L. V. Holderbaum, 86 Jo. 1; 52 N. W. T. (N. S.), 223. While these cases 550 ; Morse v. Hayden, 82 Me. 227 ; are distinguishable on other grounds Hamilton v. Smith, 110 N. Y. 159; they seem in conflict upon this par- In re Power, 124 N. Y. 361 ; In re ticular point. Bingham, 127 N. Y. 296; In re City 92 Iowa Loan & Trust Company of Rochester, 110 N. Y. 159; Clift v. Holderbaum, 86 lo. 1; 52 N. W. V. Moses, 116 N. Y. 144; Brill v. 550. Wright, 112 N. Y. 129; Cunning- 93 Suydam v. Voorhees (X. J.). ham V. Parker, 146 N. Y^ 29 : Mc- 43 Atl. 4 ; Higbie v. Morris, 53 N. J. Glaughlin v. McGlaughlin, 43 W. Eq. 173; Slack v. Emery, 3 Stew. Va. 226. A somewhat similar view Eq. (N. J.), 458; Whitehead v. Gib- was expressed in the English case, bens^ 2 Stock, 230 (IST. J.). LAW OF WILLS. 907 charged upon the realty, the personalty is exonerated to that extent, and a legatee is entitled to be subrogated to the rights of the creditor against the realty to the extent to which the personalty was used for the debts.^^ A gift of property by a residuary clause, after specific legacies and devises have been given, charges the property thus given with the payment of debts in case the personalty is not sufficient.*^" So where testa- tor gives his interest in a certain business to bo determined by winding up the business and ascertaining the proceeds, the debts incurred by testator in such business are to be charged first against the business and deducted from the property thus given, and the beneficiaries can not insist that these debts be paid first out of his general estate.^*^ A peremptory direction to executor to pay the debts of testator out of the real or per- sonal estate is regarded as a trust, the execution of which can be specifically enforced at the instance of the creditors.^^ A discretionary power, however, to use the proceeds of real estate,^^ or life insurance,*^^ in the payment of such debts as executor might see fit to pay in this way, does not create a trust for the benefit of the creditors and can not be enforced by them. 94 /» re Salt (1895), 2 Ch. 203; my just debts and funeral expenses" 13 Rep. 499, following In re Stokes. to the trustee in trust for testator's 67 L. T. (X. S.), 223, and refusing children. It was held that the en- to follow In re Bate, 43 Ch. Div. tire residue, including that part goo. given to testator's wife, was equal- as 7» re Bawden (1894), 1 Ch. ly liable for the debts and expenses 693; Turner v. Laird, 68 Conn. 198: of administration. Stevens v. Un- Mulligan's Estate, 157 Pa. St. 98; derhill, — (N. H.) (1883); 36 Atl. Thompson's Estate, 182 Pa. St. 370. 340. This is especially evident 96 Froelich v, Froelich Trading where the testator devised the res- Co. 120 N. C. 39. idue remaining after the payment 9T Morse v. Hackensack Savings of his debts and funeral expenses. Bank, 47 N. J. Eq. 279; 12 L. R. A. Turner v. Laird, 68 Conn. 198. And 62; Suydam v. Voorhees (N. J.), this rule has been applied where tes- 43 Atl. 4. tator devised to his wife "one-third »« In re Head, L. R. 45 Ch. Div. part of the residue and remainder 310. of all my estate" and gave "the re- 99 Woods v. Woods, 99 Tenn. 50. mainder of my estate after of all 908 LAW OF WJLLS. §765. Payment of liens out of personalty. The rule that testator's debts are primarily payable out of his personalty applies not only to his general debts but to such debts as have become liens upon specified property of testator, whether real or personal. Unless the contrary appears in his will these debts are payable primarily out of his personal estate not specifically bequeathed.^ °" The omission of mort- gagees to present their claims to the executor does not destroy the right of the devisee of mortgaged property to have the debt paid out of the personalty.^ °^ In some jurisdictions certain judgments are by statute payable primarily out of the realty.^ "^ Personalty disposed of by residuary clause may be applied to the payment of testator's mortgage indebted- ness.^*'^ The opinion has been expressed in some courts that a pecuniary legacy can not be defeated or abated by the appro- priation of the personalty to the pa^nnent of the mortgage debt in the absence of any specific direction to that affect.^ ''^ Per- sonalty specifically bequeathed can not be applied to the pay- ment of a mortgage debt, since testator's evident intention is to benefit the legatee by the specific gift at all events.^ ''^ itfo Turner v. Laird, 68 Conn. the mortgagee. Dean v. Rounds, 198; Bassett v. Rogers, 162 Mass. 18 R. I. 436. 47; Hale v. St. Paul, 54 Minn. 421; w* Howel v. Price, 1 P. Wms. Higbie V. Morris, 53 N. J. Eq. 173; 291; O'Neil v. Mead, 1 P. Wms. Slack V. Emery, 3 Stew. Eq. 458; 693; Serle v.St. Eloy, 2 P.Wms.386; McLenahan v. McLenahan, 3 C. E. Bickliam v. Cruttwell, 3 Mylne & Green, 101; Keene v. Munn, 1 C. E. Cr. 763; Hawes v. Warner, 2 Vern. Greene, 398; In re Riegelman's Es- 477; Wythe v. Henniker, 2 Myl. & tate, 174 Pa. St. 476; Gould v. K. 635; Selby v. Selby, 4 Russ. Winthrop, 5 R. I. 319. 336; Harris v. Dodge, 72 Md. 186- 101 Turner v. Laird, 68 Conn. 198. Gould v. Winthrop, 5 R. I. 319. 102 /n re Anthony (1892), 1 Ch. io5 Johnson v. Child, 4 Hare, 87; 450 (a judgment in elegit). In re Butler (1894), 3 Ch. 250; 103 Dean v. Rounds, 18 R. I. 436. Cost's Succession, 43 La. Ann. 144; And the residuary legatee, whose Thomas v. Thomas, 2 C. E. Green, legacies have been diminished by 356 ; Tucker v. Lungren, 12 O. C. C. an appropriation of the personalty 622; 1 0. C. C. Dec. 577; Glass v. to payment of such mortgage debt, Dunn, 17 0. St. 413. can be subrogated to the rights of LAW OF WILLS. 909 §766. Where liens are not payable out of personalty. — Gifts cum onere. Where the property devised was subject to a mortgage, or to other incumbrance, which was not created by testator, and for which he had, not become personally liable, and which there- fore is not his debt, it is held, in the absence of any express direction in his will, that such debt is not to be paid out of the j^ersonalty, but that the devisee takes the property cum onere}^^ WLere the incumbrance was not created by testator, and he was not originally liable for the debt, the fact that he has covenanted with his vendor at the time he purchased such property, to pay off such incumbrance, does not make such debt payable primarily out of his personal estate in jurisdictions where such a covenant does not make him personally liable to the original mortgagee.-^ ^" Where the incumbrance was not created by testator, a devise of the incumbered property "out- right" does not show testator's intention to devise it free from the mortgage.-^ ^** Where the lien is not created by testator he may, nevertheless, direct its payment out of the personalty. This may be done by express direction, or by a general scheme of disposition inconsistent with the theory that the devisee must discharge the lien.^*^^ Where testator expressly devises his property, subject to the incumbrances thereon, such incumbrances are not primarily payable out of the personalty.^ ^*^ The intention to devise cer- tain property cum onere may be implied from the general pro- losCarlisle v. Green (Ky.), 19 los Creesy v. Willis, 159 Mass. S. W. 925; 14 Ky. Law. R. 37.3; 249. Hewes v. Dehon, 3 Gray, 205 ; An- io9 Cumberland v. Codrington, 3 drews v. Bishop, 5 Allen, 490; Cree- Johns. Gas. 229; Thompson v. sy V. Wills, 159 Mass. 249. Thompson. 4 O. S. 333. A direc- 107 Tweddell v. Tweddell, 2 Bro. tion in testator's will that his just C. C. 101 ; Billinghurst v. Walker, 2 debts be paid out of his personalty Bro. C. C. 604; Butler v. Butler. 5 may include liens not created by Ves. 534; Creesy v. Willis, 159 testator. Thompson v. Thompson, Mass. 249 ; McLenahan v. McLena- 4 0. S. 333. han, 3 C. E. Green, 101 ; Mount v. no Harris v. Dodge, 72 Md. 186. Van Ness, 6 Stew. — 262; Cum- berland V. Codington, 3 Johns. Ch. (N. Y.) 229. 910 LAW OF WILLS. visions of the will. Thus a gift of certain legacies, followed by a devise of a farm upon which there was a purchase money lien to others, which purchase money lien was so large that its payment would exhaust the personal estate and leave nothin"- for the legacies, it was held to show testator's intention to de- vise the land subject to the purchase money lien,^^^ iiiHedger v. Judy, — (Ky.) — : abated in -order to pay mortgage 26 S. W. 586. (While this case debts, the court decided the case might be explained on the theory upon the reasoning indicated in the that pecuniary legacies can not be text.) LAW OF WILLS. «^11 CHAPTER XXXVI. CLASSES OF DEVISES AND LEGACIES. §767. Classes of devises and legacies. — General legacies. In determining questions as to priority of payment of de- vises and legacies, three classes of devises and legacies have been established : general, specific and demonstrative. A gene- ral legacy or devise is one which may be satisfied by any part of testator's estate, corresponding either in value or general de- scription to the provisions of the will.^ The characteristic of the general legacy or devise is that it does no,t attempt to dis- pose of specific pieces of property. Any pecuniary legacy, which, from the terms of the will, is payable generally from testator's estate, is a general legacy.^ A bequest of "all mon- eys or legacies coming to me from any source" is said not to be a specific legacy.^ A bequest of money due the testatrix from the estate of her deceased husband, subject to payment of cer- tain other legacies, was held to be a general and not a specific legacy.^ A bequest of all testator's property except certain 1 Kelly V. Richardson, 100 Ala. coming to me from" A was said to .58 4; Dean v. Rounds, IS R. I. 43G. be a specific and not a general leg- 2 Kelly V. Richardson, 100 Ala. acy.) Derby v. Derby, 4 R. I. 584; Oolder v. Chandler, 87 Me. 414. 6.3; Huffhes v. Hughes, 91 Wis. * Littig v. Hance, 81 Md. 410. J 3^ ' (In this case the court laid down 3 Dean v. Rounds, 18 R. I. 430. the general proposition that "when (A o-ift, however, of the "moneys a fund is given subject to debts or 912 LAW OF WILLS. specified articles is a general bequest.^ In case of doubt of tes- tator's intention, the courts always presume that he intended to give a general legacy instead of a specific one.^ Thus, cer- tain legacies which aggregate in amount the principal of a fund given by testator in trust for other legatees, and which are pay- able on the decease of such other legatees, are held to be gen- eral legacies, there being no direction that they be paid out of such trust fundJ §768. Specific legacies. A specific legacy or devise is a gift of a particular, specified, and determined piece of property as distinguished from a gen- eral gift.^ It differs from a general legacy in that it is not in- tended by testator to be paid out of his estate generally, but is to be paid solely by delivering to the beneficiary the specific thing given by will.^ A specific legacy is given by words subject to other legacies, the gift of the residue is not specific," cit- ing Harley v. Moon, 1 Dr. Sm. G23; Baker v. Farmer, L. Rep. 3 Ch. App. 537. The court further indicated in the following language a distinction which runs through many cases : "There is a broad distinction between the gift of a debt as a debt, and the sum of money produced when the debt has been recovered and has ceased to be a debt. In the one instance the legacy is specific, and the collec- tion of the debt in the testator's lifetime will adeem the legacy. On the other hand, the gift extends to and includes the fund in the altered state, because, being a gift of the fund, the thing given will pass though it be not in the precise state that it was when the will was executed.") 5 Kelly V. Richardson, 100 Ala. 584. eDryden v. Owing, 49 Md. 356; Littig V. Hance, 81 Md. 41G; Briggs V. Hosford, 22 Rick. (Mass.) 288; Wallace v. Wallace, 23 N. H. 149; Gilbreath v. Winter, 10 Ohio 64; Dean v. Rounds, 18 R. I. 436. TTeel v. Hilton, 21 R. I. (Part 2) 227. sin re Xottage (1895), 2 Ch. 657 ; ShaflFer's Succession, 50 La. Ann. 601 ; Byrne v. Hume, 86 Mich. 546; Wheeler v. Wood, 104 Mich. 414; Page v. Eldredge Public Li- brary Association (N. H.) (1899), 45 Atl. 411: Moore v. Moore, 50 K J. Eq. 554. 9 "A specific legacy is a particu- lar and specified thing singled out, or a particular fund, and if this fund fail, or the specific thing be- queathed is not in existence to be carried over to the legatee, the leg- acy can not be paid out of the as- sets of the estate." Byrne v. Hume^ 86 Mich. 546. LAW OF WILLS. 913 wliich particularly describe the property which testator gives to the beneficiary. Thus, a gift of testator's property invested in his mercantile business is a specific gift.-^*^ So a gift of the horses, farming implements, etc., upon a given plantation, is a specific bequest.^ ^ So a devise of land owned by testator at the date of the will is a specific devise.-^^ Money may be the subject of a specific legacy. A gift of money deposited at a certain named bank is a specific legacy.-^ ^ A gift of a certain sum out of a certain described deposit has been held to be a specific legacy.-^ ^ So a gift to the beneficiary of a debt specif- ically described by indicating the debtor is a specific bc- quest.-^^ So a gift of a debt, secured by a mortgage, the execu- tor being directed to assign the mortgage to the legatee, is a specific bequest.-^ *^ And a gift of a certain amount to be paid by allowing the legatee to select such amount out of a specified number of bonds and mortgages held by testator's executors was treated as a specific gift.^^ A gift of certain encumbered realty, with a direction that the executors pay off the encum- brances thereon, is a specific devise of such realty free from all encumbrances.-^^ A specific legacy may be a gift of property to be afterguards acquired, if described with sufficient particu- larity.^^ 10 Kelly V. Richardson, 100 Ala. i6 Wheeler v. Wood, 104 Mich. 584. 414. (The will provided: "I give 11 McFadden v. Heffley, 28 S. C. and bequeath" to A "the sum of 317; 13 Am. State Rep. 675. $400, the said $400 to be paid by 12 Kelley v. Richardson, 100 Ala. my executor assigning and trans- 584. f erring to the said (A) a certain 13 Barber v. Davidson, 73 111. App. real estate mortgage," describing 441; Prendergast V. Walsh (N. J.). it by the amount, the debtor and 42 Atl. 1049; Towle v. Swasey, 100 the land mortgaged.) Mass. 100; Crawford v. McCarthy, it Blundell v. Pope (N". J.), 21 159 N. Y. 514. Atl. 4.50). (And being a specific 1* Crawford v. McCarthy, 159 X. gift it carried with it interest from Y. 514. testator's death.) 15 Sinnott v. Kenaday, 14 App. is Porter v. Howe, 173 Mass. 521. D. C. 1 ; Gelbaeh v. Shively, G7 Md. According such encumbrances must 489; Tomlinson v. Bury, 145 Mass. be paid in full even if the general 346; Gilbreath v. Winter, 10 Ohio. legacies must abate or fail. 64; Derby v. Derby, 4 R. I. 414; i9 Kelly v. Richardson, 100 Ala. Gardner v. Printup, 2 Barb. ( S. C. ) , 584 ; Shaffer's Succession, 50 La. 83. Ann. 601. 914 LAW OF WILLS. §769. Gifts of stocks, bonds and other securities. When a testator, by will, disposes of a certain number of bonds and stocks, or bonds and stocks of a certain value, it is often very difficult to determine whether the gift is general or specific ; and there is some difference of judicial opinion in particular cases. The general principle which controls in this case is that, if it appears from the entire will that testator in- tended to pass particular, designated bonds or stocks, that the gift is specific ; while, if the will can be complied with by giv- ing any bonds or stocks of the kind, value, and amount named, the gift is a general one. Thus, a gift of a certain amount of money in certain named securities, not identifying them, is a general gift, and not a specific one, though testator had exactly that amount at his death.^*^ A gift of a certain value of securities, to be selected by executors from his estate generally, is a general and not a specific gift.^^ A gift of a certain sum, "either in stock or money," is, of course, a general gift.^^ But where testator gives stocks, bonds, or other securities in such way as to show that he gives specific bonds or specific shares of stock or particular securities, the gift is regarded as a specific and not a general one.^^ Thus, where testator gives a specified number of shares of stock of a certain kind to one beneficiary, and another specified number to another, the two together being exactly equal to the amount of stock owned by testator when he made his will, the gift is treated as a specific one es- pecially, as a subsequent clause, he gives "balance of my stock," that is, the rest of his stock of other kinds, to other 20 Evans v. Hunter, 86 la. 413. of the sum named and not the' face 21 Blundell v. Pope (N. J.) , 21 value where the stocks are above Atl. 450; Booth v. Baptist Church, par.) 120 N. Y. 21,5. But we have seen 2s /^ re Xottage (1895), 2 Ch. that where the beneficiary is to se- 657; In re Pratt (1894), 1 Ch. lect the securities from a specified 491; Douglass v. Douglass, 13 App. number, the gift is treated as spe- D. C. 21; Sinnott v. Kenaday, 14 cific. Blundell v. Pope, — ( N. J. ) App. D. C. 1 ; Unitarian Society — , 21 Atl. 456. V. Tufts, 151 Mnss. 76: 7 L. R. A. 22 Graham v. De Yampert, 106 390; Yerkes's Estate, 22 Pa. Co. Ala. 279. (Being a general gift, if 263; 8 Pa. Co. 263; 8 Pa. Dist. Rep. beneficiary elects to take the stocks, 37 & 83; McFadden v. Heffley. 28 S. he can take only the actual value C. 317; 13 Am. St. Rep. 675. LAW OF WILLS. 915 beneficiaries.^'* A gift of the dividends of a specified block of stock, being considered in law as a gift of the stock itself, is a specific bequest.^^ Where testator's intention to make a specific gift is clear, a slight misdescription of the security to be given does not pre- sent the gift from being a specific one.^'^ In a case which is a departure from the normal, a gift to legatees of certain num- ber of shares of a particular kind of stock "now owned by me and standing in my name" on the corporation stock books, amounted in all to 2200 shares; at the date of the will testator owned over 3000 shares; at the time of his death he o^vned only 200 shares. The court held that this was a general and not a specific legacy. This result was to some extent aided by a statute providing that a will should be construed as if it had been made immediately prior to testator's death, imless his in- tention clearly appears otherwise. The legacies were, there- fore, treated as general pecuniary legacies.^'^ Where testator directs that a certain sum of money derived from his estate generally be invested in a certain manner, this is held to be a general, and not a specific legacy, the fund thus invested being raised from testator's e-eneral estate.-^ &"- §770. Demonstrative legacies. A demonstrative legacy is one which is general in its nature, but which is made payable out of certain specified property either real or personal. ^^ A gift of a certain amount "to be 24 Unitarian Society v. Tufts, 151 McFadden v. Heffley, 28 S. C. 317; Mass. 76; 7 L. R. A. 390. 13 Am. State Rep. 675. 25 McFadden v. Heffley, 28 S. C. 29 Ives v. Canby, 48 Fed. 718; 317; 13 Am. St. Rep. 675. Hibler v. Hibler, 104 Mich. 274. 26 7re re Nottage (1895), 2 Ch. Johnson v. Conover, 54 N. J. Eq. 657 (debentures miscalled deben- 333; In re Hodgman. 140 N. Y. ture stock or shares) ; Tn re Pratt 421; Hammer's Estate. 158 Pa. St. (1894), 1 Ch. 491 (mistake in de- 6.32; Glass v. Dunn. 17 O. S. 413; scribing the rate of interest which Lake v. Copeland, 82 Tex. 464. In the securities bore). Byrne v. Hume, 86 Mich. 546. a de 27]Vfehoney v. Holt, 19 R. I. 660 monstrative legacy was said to be (1896) ; 36 Atl. 1. "a pecuniary legacy, the particular 28 Moore v. Moore, 50 N. J. Eq. fund being pointed out from which 554; /n re Hodgman, 140 N. Y. 421; it is to be paid." This definition 916 LAW OF WILLS. paid out of my personal property on hand after the death of my said wife," is a demonstrative legacy ;^*^ so is a gift of "the sum of $8,000 invested in stocks" ;^^ and a gift of a certain sum "which may be invested in bank stock" has been held demonstrative."^" A demonstrative legacy has been held to be created by a gift which, in its terms, is apparently specific where it is evidently given as a means of carrying out testator's intention of divid- ing his estate equal ly.^^ Demonstrative legacies thus combine most of the advantages of both general and specific legacies. If the property out of which it is made payable is in existence, the demonstrative legacy is payable out of such fund before other legacies.^'* If the property out of which it is payable is not in existence, the demonstrative legacy is payable out of testator's property generally.^^ is open to criticism in as much as a demonstrative legacy may be pay- able out of property other than the fund, and it seems need not nec- essarily be in the form of a pe- cuniary legacy.) Hence, if such gift is paid by delivering part of the stock, it does not carry with it interest or the dividends. Giddings v. Seward, 16 N. Y. 365; Newton v. Stanley, 28 N. Y. 61. Hence a provision that an annuity should be paid out of certain tolls which were bequeathed in trust is not a demonstrative legacy, but the creation of a trust ; and if the proceeds of the tolls are insufficient to pay the annuity, re- sort can not be had to the gen- eral estate of testator. Morris v. Harris, 19 O. S. 15. soHibler v. Hibler, 104 Mich. 274. 31 Johnson v. Conover, 54 N. J. Eq. 333. 32 In re Hodgman, 140 N. Y. 421. (This is really a general legacy. The real point at issue was whether the gift was specific on the one hand, in which case it would car- ry interest, or general or demonstra- tive on the other, in either of which cases it would not.) 33 Hammer's Estate, 158 Pa. St. 632 ; Lake v. Copeland, 82 Tex. 464. ( The result is reached in these liaseS by holding that from the whole will it is testator's intention that the gift shall be paid, in any event, even if it is necessary to pay it out of the general estate, and that he did not intend that the gift should depend upon continued existence cf the property out of which it is to be paid.) 3* Dunford v. .Jackson, — Va. — (1896) ; 22 S. E. 853. 35 See cases cited in this sec- tion. LAW OF WILLS. 917 CHAPTER XXXVII. ABATEMENT, ADEMPTION. ADVANCEMENTS AND CONTRIBUTION. 1— ABATEMENT. §771. Where testator directs order of abatement. The debts of a testator have, of course, a priority of pay- ment over legacies given by him. If, after payment of debts, there is not sufficient property to pay all the legacies which he has given by will, it is evident that some or all must fail in whole or in part by reason of such deficiency in his estate. This failure is known as abatement. The question presented in such cases for determination is whether the legacies shall abate pro rata, or whether certain ones shall be paid in full and others either completely defeated or disproportionately re- dnced in order to pay such others in full. If testator in his will indicates that certain legacies are to be given priority over others in case of a deficiency in the es- tate, his wishes will be enforced.^ Thus, a direction that a cer- 1 Chester County Hospital v. Hay- 398 ; Eames v. Protestant Episco- den, 83 ]\Id. 104; Towle v. Swnsey, pal Church, G8 N. H. 203: Moore v. 106 Mass. 100; Richardson v. Hall, Moore, 50 N. J. Eq. 554; Bright's 124 Mass. 228; Weston v. Mass. Appeal, 100 Pa. St. 602; Spencer, General Hospital, 169 Mass. 76; Mc- Petitioner, 16 R. I. 25; Lee v. Lean v. Robertson, 126 Mass. 537 ; Smith, 84 Va. 289. Heath v. McLaughlin, 115 N. C. 918 LAW OF WILLS. tain legacy shall be first paid, and then, after such legacy is paid, another legacy shall be paid out of his estate, such an expression is ordinarily held to give the first legacy a priority of payment over the subsequent ones.^ So testator may provide in his will that certain specified property shall not be applied to the payment of his debts until the rest of his estate is con- sumed in their payment.^ Where testator's intention is clear in his will, he may even make a legacy, in its nature residuary, a preferred legacy over pecuniary ones. Thus, where testator bequeathed all his prop- erty to his wife, directing her to pay certain legacies out of such property, but providing that under no other provisions of the will her share shall be less than $7,000, which was to in- clude two life insurance policies aggregating $5,000 and pay- able to her, it was held that his intention was clear that she should be a preferred legatee out of his general estate to the amount of $2,000.'* So where testatrix directed that the sum of $10,000 be kept as a fund for the use and maintenance of her father for life, and at his death "the whole amount of $10,- 000" to go to a designated charity, and gave subsequently two general legacies, it was held to be the intention of testatrix that the fund of $10,000 for the support of her father should be devoted to that purpose, in any event, and that such legacy Avas to be preferred to the other two. Hence, upon his death, the fund was to be paid in full to the trust, even though the general legacies might be abated or defeated.^ Still, expres- sions in a will which show the order in which the bequests are made, or even the order of time in which they are to be paid, do not of themselves show testator's intention to give certain legacies a priority of payment over others in ease of insufli- 2 Shaffer's Succession, 50 La. App. of testator's grandson, and then to GOl; Hammond v. Hammond, 169 pay the "followin.o- legacies" was Mass 82 (thus a gift of a certain held to g've no priority to the leg- annuity to A and the balance of the acy to grandson.) income, if any, to B. gives A's leg- ^ Hammet v. Hammet, 38 S. C. acy a priority) ; Richardson v. Bow- 50. en, 18 R. I. 138. See Sec. 749. 4 Phillips's Estate, 18 ]\ront. 311. Contra Lindsay v. Waldbrook, 24 ^ Chester County Hospital v. Hay Ont. App. 604 ( a direction to pay den, 83 Md. 104. a certain legacy for the education LAW OF WILLS. 919 ciency of assets.® A legacy which is charged upon certain property has, as to such property, a priority over general lega- cies.'^ §772. Where no direction in will. — Residuary legacies. Testator's will does not, however, often contain provisions directing the course in which the legacies given shall abate, since testator rarely contemplates the possibility of his estate failing to pay his debts and legacies in full. In the absence of specific provisions in the will, the law must provide in what order the different classes of legacies shall abate. This result is reached by general rules which are intended to express and enforce the probable intention of the average testator. It is another of those difficult cases where courts must determine the intention of testator upon a subject upon which he never had any intention. If testator's estate is insufficient to pay off all his legacies and devises in full after paying his debts, the legacies given in the residuary clauses abate first. ISTo payment can be made to a residuary legatee until all other legacies have been paid in full.^ Thus, in a gift of certain sums to legatees named, with a provision in case of a deficiency in the funds avail- able for the payment of such legacies, followed by a residuary clause, it was held that the rents collected from realty pending its sale under a power should be paid to the first legatees rather than to the residuary legatees.^ A gift, after providing for certain legacies, of "one-sixth of the rest, residue and remain- der" of his estate, was held to give only what was left after 6 Porter v. Howe, 173 Mass. 521; Alsop v. Bowers, 76 N. Car. 168; Sumner v. American Home Mission- Burke v. Stiles, 65 N. H. 163; In ary Society, 64 N. H. 321. re Hodgman, 140 N. Y. 421 ; Fer- 7 Young V. Benton (N. H.) guson's Appeal, 138 Pa. St. 208; (1900) ; 46 Atl. 51. Vance's Estate, 141 Pa. St. 201; s/nreBawden (1894) , 1 Ch. 693; 12 L. R. A. 227; Lyon v. Brown Warren v. Morris, 4 Del. Ch. 289; University, 20 R. I. 53; rehearing Carper v. Crowl, 149 111. 465; Por- denied, 20 R. I. 337; Zentner's Es- ter V. Howe, 173 Mass. 521 ; Tom- tate, 90 \Yis. 236. linson v. Bury, 145 Mass. 346; 9 Lyon v. Brown University, 20 E. Svkes V. Van Bibber. 88 Md. 98; I. 53 ; rehearing denied, 20 R. L 337. 920 LAW OF WILLS. payment of the debts and legacies.^ *^ The reason underlying this rule is that, as testator bequeaths in a residuary clause only that jDart of his property left after tlie pa^anent of the be- quests and devises previously given, his intention will be best, given effect by using the residuum first in paying testator's debts. The purpose of all these rules is to approximate testa- tor's intention as it would probably express itself if he had been aware of the actual relation of the value of his property to the amount of his debts, since it is impossible to give literal effect to testator's intention. Where there is no residuary clause, any property which testator has not disposed of by will is applied to the pa}^nent of his debts before any which is spe- cifically bequeathed. §773. General legacies. If, after appropriating the entire residuum, testator's estate is not sufficient to pay the other legacies in full, the general legacies will next abate pro rata}^ ''Between specific and gen- eral devises or legacies, the loss is to be borne wholly by the latter."^ ^ Even though it appears quite probable that testa- tor's wishes, if expressed, would have been that one or more of the general legacies should be preferred in paym-ent to others, the rule that the general legacies abate -pro rata will not be de- 10 Zentner's Estate, 90 Wis. 236. Mass. 38 ; Lawton v. Fitehburg Sav- 11 /m re Bate, L. R. 43 Ch. D. ings Bank, 160 Mass. 1.54; Phillip's 600; Schweder's Estate (1891), 3 Estate, 18 Mont. 311; Rumsey v. Ch. 44; /n re Staebler, 21 Ont. App. Otis, 133 Mo. 8.5; Hall v. Smith, 266: Botsford's Appeal. 33 N. B. 5.5: 61 N. H. 144: Meis v. Meis, — N. Kelly V. Richardson, 100 Ala. 584; J. Eq. — , 1896; 35 Atl. 369: United Duffield V. Pike, 71 Conn. 521 ; Nash States Trust Co. v. Black. 146 N. Y. V. Ober, 2 App. D. C. 304 ; Showalter 1; Ferguson's Appeal, 138 Pa. St. V. Showalter, 38 111. App. 208; 208; Duvall's Estate, 146 Pa. St. Henry v. Griffis, 89 To. 543; Mur- 176; Myers v. Myers. 88 Va. 131; ray v. Murray (Ky.), 27 S. W. Morris v. Garland, 78 Va. 215; 977; 16 Ky. L. R. 332; Coste's Broderick v. Broderick, 35 W. Va. Succession, 43 La. App. 144 ; John- 620 ; Dunn v. Rennick, 40 W. Va.. son V. Home for Aged Men, 152 349; Bradford v. McConihay, 15 W. Mass. 89; Richardson v. Hall, 124 Va. 732. Mass. 228 ; Farnum v. Bascom, 122 12 Johnson v. Home for Aged Men, Mass. 282 ; Towle v. Swasey, 106 152 Mass. 89. Mass. 100; Babidge v. Vittum, 156 t,AW OF WILLS. ^^■*' parted from, in the absence of any expression in the will show- ing an intention to give a preference to such legacies.^^ Even where testator directs that certain legacies shall abate last, this direction, while it saves the specified legacies, does not change the rule as to the other legacies given by will.^^ A bequest given by will of five per cent, of so much of testator's estate as should be in existence at the death of his widow was held to have no priority over pecuniary legacies.^ ^ In many individual cases, testator would no doubt have pro- vided that certain specific legacies should abate in favor of cer- tain general ones, if his attention had been called to the subject and he had appreciated its practical importance. To deter- mine in what cases his intention existed would require the courts to enter upon the forbidden field of direct extrinsic evi- dence of testator's intention. In avoiding such extrinsic evi- dence, the courts are thrown back on the rule that general lega- cies abate first as the rule most probably conforming to testa- tor's actual intention in the majority of cases. §774. Demonstrative legacies. A demonstrative legacy is, of course, a first charge upon the fimd or property which testator designates as to the source of payment of such legacy.^^ A demonstrative legacy is not de- feated, however, by the partial or total failure of the fund out of which such legacy is payable, but in such case the deficiency is to be made up out of testator's personal estate not specif- ically bequeathed.^ ^ Thus, where testator directs that certain 13 Schweder's Estate (1891), 3 son v. Bragg, 21 R. I. 296; 21 R. Ch. 44. (In this case a legacy to I. (Part 1), 87. testator's wife for her immediate i* Heath v. McLaughlin, 115 N. needs was held to abate pro rata C. 398. with other legacies.) Duffield v. is Ferguson's Appeal, 138 Pa. St. Pike, 71 Conn. 521 ; Babvidge v. Vit- 208. turn, 156 Mass. 38 (a legacy to tes- i" See Chap. XXXVI. tator's children held to abate pro i^ Ives v. Canby, 48 Fed. 718: rata with lesacies to more distant GoVler v. Chandler. 87 Me. 63.; relatives): Porter v. Howe, 173 Byrne v. Hume, 86 Mich. .546 : Rote Mass. 521 (legacies to testator's v. Warner, 17 0. C. C. 842; Lake near relatives held to abate pro rata v. Copeland, 82 Tex. 464. with legacies to charities): Nicker- "The gift is unconditional and 922 LAW or WILLS. real estate be sold in no event for less than a certain sum, and that out of the proceeds a legacy given to another shall be paid, such legacy was not defeated by sale of the property for less than such smn, under judicial sale instituted by a creditor of the estate.^ ^ Where testator makes a gift of certain legacies out of a fund or proceeds of property, and gives the remainder or residuum of the fund or proceeds of such property, after the sale, to a designated beneficiary, the question is often presented for de- termination whether the gift, which is in fonn a residuary gift, is really such, or whether it is a specific legacy like the others. The distinction adopted by the courts is as follows: If the fund out of which the legacies are given is fixed and ascertained in amount, the residuary gift is construed as in ef- fect a gift of a certain part of the original fund. Accordingly, in case of a deficit in such fund, the legacies will abate pro rata}^ On the other hand, if the fund from which the lega- cies are given is not settled and determined in amount, so that the amount of the residuum can not be determined, it is, of course, impossible to determine what fraction of the whole fund testator intended to give to the residuary beneficiary. In such cases, therefore, a gift of the residuum is treated in the same way as other residuary gifts, and a deficiency in u fund must be borne entirely by the residuary legatee, the other absolute, although, as is often tlie is Broderick v. Broderick, 35 W. case, he overestimates the sources Va. 620. of supply which were to assure its is Page v. Leapingwell, 18 Ves. payment. The source indicated Jr. 463; WalpoJe v. Apthorp, L. R. turning out to be insufficient, others 4 Eq. 37. (This rule rests upon the must be taken to supply the de- fact that the entire fund is fixed, ficiency. It is a demonstrative leg- as for instance .$1,000, a fund of aey, not lost because of the non- a certain amount out of such to one, existence of the property specially as, for example, $500, with a gift of pointed out as a means of satis- the remainder to another, is exactly, fyipg it." in legal effect and contemplation, Moore v. Alden, 80 Me. 301, cit- the same thing as a gift of one- ing Smith v. Fellows, 131 Mass. half of the! fund to one and the 20; McLean v. Robertson, 126 Mass. other half to another; and accord- 537; Potter v. Brown, 11 R. I. 232: ingly it was treated in law in ex- Wells V. Berwick, L. R. 17 Ch. D. actly the same manner.) 798. LAW OF WILLS. 923 beneficiaries being paid in full if the fund is sufficient.^^ Thus, a provision that in event of the death of a certain legatee without issue his legacy of $30,000, and whatever else he might be entitled to under the will, should, in such case, be divided into four bequests of $5,000 each, and the residue to another beneficiary, shows that testator did not intend to limit his gift to the fixed sum of $30,000, but that it was an uncer- tain sum which testator thought would be in excess of that amount. Accordingly, when, after the death of the legatee without issue, it proved that the estate of the testator would not be sufficient to pay the legacy of $30,000, it was held that the four legacies of $5,000 each were to be paid in full, and that the deficit was to be borne entirely by the gift of the resi- due.2i §775. Specific legacies. Specific legacies do not abate until the entire amount of the general and residuary legacies has been consumed in paying testator's debts ; and specific legacies do not abate in favor of general legacies unless the contrary intention is manifested in the will.-^ Thus, where testator by will gives the principal of a designated mortgage to his children equally, it was held that such mortgage can not be applied to the payment of other 20 Currie v. Kimberley, 57 L. J. Ch. N. S. 743; Elwes v. Causton, 30 Beav. 554; Booth v. Alington, 6 De. G. M. & G. 613; Wright v. Weston, 2G Beav. 429; Haslewood V. Green, 28 Beav. 1 ; Miller v. Huddlestone, L. R. 6 Eq. 65; Petre V. Petre, 14 Beav. 197 ; Harley v. Moon, 1 Drew & S. 623 ; Wilday v. Barnett, L. R. 6 Eq. 193; Re Har- ries, Johns Ch. R. 199 ; Aston v. Wood, 43 L. J. Ch. N. S. 715; Cor- ballis V. Corballis, 9 L. R. Ir. 309; 1)1 re Tunno, L. R. 45 Ch. Div. 66 ; In re Carbery, 30 Ont. Rep. 40; Sykes v. Van Bibber, 88 Md. 98; Van Nest V. Van Nest, 43 N. J. Eq. 12G ; Broderick v. Broderick, 35 W. Va. 620. 21 Sykes v. Van Bibber, 88 Md. 98. 22 Kelly V. Richardson, 100 Ala. 584; Woodworth's Estate, 31 Cal. 595 ; HolTecker v. Clark, 6 Del. Ch. 125 ; Johnson v. Home for Aged Men, 152 Mass. 89; Meiss v. Meiss, — N. J. Eq. — ; 35 Atl. 369; Page V. Eldredge Public Library Asso- ciation (N. H.) (1899), 45 Atl. 411; McMahon's Appeal, 132 Pa. St. 175; Myers v. Myers, 88 Va. 131; Morris v. Garland, 78 Va. 215; Dunn V. Renick, 40 W. Va. 349. (A specific legacy is liable to ademp- tion, but not to abatement.) Dunn V. Renick, 40 W. Va. 349 ; Bradford V. McConnihav, 15 W. Va. 732. 924 LAW OF WILLS. legacies, or in any way be diverted from the named benefi- ciaries, except for the payment of testator's debts.^^ Where property specifically devised is necessarily sold to pay testa- tor's debts, the surplus proceeds of the sale of such property, after payment of the debts, go to specific beneficiary, and can not be applied to general bequests and legacies.^'* While spe- cific legacies usually abate pro rata if they abate at all, the cir- cumstances of the case and the context of the will may show that testator intended to give one specific gift a preference over the other.^^ Thus, testator provided that his property should be subject to a trust to support certain minors ; and, at the time of making his will, testator anticipated that he would die soon. He then had one fund available at once ; the other, available on the death of one having a life interest in such fund, who, by the tables of mortality, might live twenty years. It was held that the trust was payable of the first fund, though testator had made specific gifts of each.^^ §776. Legacies given upon valuable consideration. Where a legacy is given upon a valuable consideration a different rule applies, if abatement of legacies is necessary. The common types of legacy upon consideration are legacies in lieu of dower^''^ and legacies in satisfaction of a debt due from testator to legatee.-* In these eases the legatee, by elect- ing to take under the will, parts with a valuable right. It is 23McMahon's Appeal, 132 Pa. St. 132; Moore v. Alden. 80 Me. 301; 175. Towle V. Swasey, 106 Mass. 100; 24Golder v. Chandler, 87 Me. 63. Taylor's Estate, 175 Pa. St. 60. 25 Emery v. Batchelder, 78 Me. But where the widow claims a 233; Thurber v. Battey, 105 Mich. homestead by virtue of her hus- 718; Farnum v.. Bascom, 122 Mass. band's will, it has been held in 282; Boston Safe Deposit Co. v. Kentucky that as to his creditors, Plummer, 142 Mass. 257. See See. she is not a purchaser for value. 771. Nichols V. Lancaster (Ky.) (1896). 20 Thurber v. Battey, 105 Mich. .32 S. W. 670. 718. 28 McLean v. Robertson, 126 Mass, 27 Security Company v. Bryant, 537 : Richardson v. Hall, 124 Mass. 52 Conn. 311; Reed v. Corrig^n, 228 : Duncan v. Franklin Township. 143 111. 402; Allen v. Pray, 12 Me. 43 X. J. Eq. 143. 138: Hastings v. Cli.Tord, 32 Me. LAW OF WILLS. ^^5 probably testator's intention that the legacy indicated by will as a suitable recompense for such valuable right should be paid in full, even if other legacies are thereby defeated. Accord- ingly, it is settled that general legacies given on valuable con- sideration have a priority over other general legacies.^^ A legacy to obtain masses for testator was held to be upon con- sideration, and not to abate pro rata with other general lega- cies-^*"^ On the same principle, specific legacies on considera- tion should have priority over other specific legacies.=^^ Even where the will directed that bequests should abate pro rata in case of a deficiency of assets, it was hold that such provision did not apply to a legacy given upon consideration.^^ Whether a general legacy on consideration will have prior- ity over a specific legacy is a question upon which there is a divergence of authority. On principle a general legacy should have priority in such case, at least if the often-repeated state- ment that such a legatee is a purchaser, for value means what it says ; and this position has been taken in some cases.^^ This view does not seem to be uniformly held, however.^^ §777. Abatement of devises. At common law testator's personalty was liable for his debts and legacies ; and his realty could not be applied to the pay- ment of either debts or legacies unless they were specifically charged upon the realty. This rule has been every^vhere changed by statute as to the debts of a decedent; and his 29 Burridge v. Bradyl, 1 P. Wms. si Taylor's Estate, 175 Pa. St. log- Blower v. Morret, 2 Ves. Sr. 60 (abatement of devises). 420 '; Davenhill v. Fletcher. Amb. 32 McLean v. llobertson, 120 Mass. 244; Norcott v. Gordon, 14 Sim. 537. 258; Warren v. Morris, 4 Del. Ch. "3 Lord v. Lord, 23 Conn. 32. ; 289; ISIoore v. Alden, 80 Me. 301; Clayton v. Aikin, 38 Ga. 320; Bor- Hastinf^s V.Clifford, 32 Me. 132; Al- den v. Jenks, 140 Mass. 562; .o4 len V Pray, 12 Me. 138; Towle v. Am. Rep. 507; Loocock v. Clark- Swasev, 106 Mass. 100; Farnam v. son, 1 Desaus Eq. 471; Stuart v. Bascom 122 Mass. 282 ; Taylor's Carson, 1 Desaus Eq. 500. Estate 175 Pa. St. 60; Brovvn v. 34 Warren v. Morris, 4 Del. Ch. Brown. 79 Va. 648. 289; Hinson v. Ennis, 81 Ky: 363; 30 Sherman v. Baker. 20 R. L Boykin v. Boykin, 21 S. Car. 513. 613; 20R. L (Part 3), 218. 926 LAW OF WILLS. realty may be subjected to his debts if his personalty proves insufhcient. The statutes of the different states are by no means uniform upon the question of the extent to which testa- tor's realty can be applied to payment of his debts and legacies in the absence of a specific charge upon the realty In many states the common law rules apply, and all specific legacies abate entirely before any land specifically devised can be sold for testator's debts.^^ Thus, it is said that in the absence of any provision in the will for testator's debts, they are to be paid first, out of the personalty ; second, out of lapsed devises, and other intestate realty; third, out of specific devises.^*^ In other states devises abate with legacies, according to the class ; that is, general devises will abate pro rata with general lega- cies, contributing ratably to the payment of testator's debts; and specific devises will abate pro rata with specific legacies.^^ §778. Legacies given under a power. A legacy given by virtue of a power of appointment does not abate ratably with legacies payable out of the property of tes- tatrix where her property is insufficient to pay the legacies which she has given.^^ II— ADEMPTION. §779. Ademption. — Definition. Ademption, in its technical signification, is the destruction of a bequest by means of the sale or destruction of the thing specifically bequeathed, or by payment by the testator to the legatee in the lifetime of the testator in the nature of an ad- vancement. Ademption thus includes two separate titles, 35 Morse v. Hayden, 82 Me. 227; 36 Morse v. Hayden, 82 Me. 227. McFadden v, Hefley, 28 S. Car. 317 •, 37 Kelly v. Richardson, 100 Ala. 13 Am. St. Rep. 675; Warley v. 584. Warley, — Bail Eq. 397 ; Hull v. 38 White v. Massachusetts Insti- Hull, 3 Rich. Eq. 65; Farmer v. tute of Technology, 171 Mass. 84. Spell, 11 Rich. Eq. 541. LAW OF WILLS. 927 which have in common the extinction of a legacy for some canse other than a general deficiency in the assets of the estate of testator. ^^ §780. Ademption by change of ownership. When a chattel, specifically bequeathed by testator, is sold or conveyed by testator in his lifetime, the beneficiary does not take anything under the bequest to him, and the bequest is said to be adeemed.^'^ So a gift of the proceeds of certain specific real estate upon the death of the life tenant is adeemed by the sale of such real estate in the lifetime of tcstator.^^ So a legacy of certain specific notes secured by mortgage is adeemed by the subsequent surrender of these notes by testator in his lifetime, and by his accepting a deed of the mortgaged prop- erty,^^ or by testator's collecting such notes.^^ On the other hand, where testator gave a legacy to a certain named son, to be paid by deducting this legacy from the amount due from such son to testator upon certain notes, it was held thai such legacy is adeemed, when the testator gave these notes to such son in his nfetime.-*^ A bequest to testa- tor's three sons of his twenty-one shares in a partnership is not adeemed by tlie subsequent purchase by one of the sons, for value, of two of the shares ; but the remaining nineteen are to be divided equally among the three.'^^ So a legacy to A to en- able him to pay B's debt is adeemed where, after making the will, testator pays B's debt.^^ A devise to the minor children of A is not revoked or adeemed by a finding that testator had 39 Fisher v. Keithley, 142 Mo. 42 Tolman v. Tolman, 85 Me. 317. 244 ; 64 Am. St. Rep. 560 ; Burn- 43 Batehelor's Succession, 48 La. bam V. Comfort, 108 N. Y. 535. Ann. 278 ; Gilbreath v. Winter, 10 40 Tolman v. Tolman, 85 Me. 317: Ohio, 64. Brady v. Brady, 78 Md. 461; Uni- 44 Davis v. Close, 104 lo. 264; tarian Society v. Tufts, 151 Mass. Wheeler v. Wood, 104 Jlich. 414. 76: 7 L. R. A. 390; Starbuck v. 45 /„, re Lacon (C. A.) (1891), 2 Starbuck, 93 K Car. 183; Ford Ch. 482. V. Ford, 23 N. h. 212; Hood v. 46 Tanton v. Keller, 61 III. App Haden, 82 Va. 588. 625. 41 Sharp V. McPherson, 10 0. C. C. 181; McMurry V. Whitfield (Tenn. Ch. App.), 52 S. W. 336. 928 LAW OF WJLLS. contracted to leave to A a share of his estate on an equality with testator's children ; and that A can enforce such contract against the estate of testator.-*^ §781. What changes do not affect ademption. Where property specifically bequeathed remains in existence in specie, slight and immaterial changes in its form do not adeem the legacj.^*^ Thus, a devise of certain specific notes is not adeemed bv a renewal of such notes with sureties;^® nor is a specific bequest adeemed by a transfer of the personalty bequeathed, in trust for testator, with the understanding that this property was to be retransf erred to him f^ nor is a devise of a ground rent adeemed by a subsequent extension of the time of the original lease.^^ A devise of a- specific ground rent is, however, adeemed by the sale and extinguishment thereof by testator in his lifetime; and a ground rent subsequently purchased with the proceeds of the first does not pass under the devise.^^ A change in the form of property made after the insanity of the testator, by the guardian, does not work an ademption where such property can be traced. Thus, a trans- fer of certain consols, specifically bequeathed, from the name of the testatrix to that of the paymaster general does not adeem such bequest/'^^ The doctrine of ademption by sale, de- struction or change, applies only to specific bequests. From its nature it can have no application to general legacies.^* Where a devise of real property is rendered inoperative by a subsequent sale of such realty, this is technically spoken of as a revocation, and not as an ademption.^^ A sale or destruction of the whole of the property bequeathed effects an ademption, 47 Nowack V. Berger, 133 Mo. 24 49 Shaffer's Succession, 50 La. (hence the shares devised to A's Ann. 617. children can not be applied in part so Blakemore's Succession, 43 La. on A's share). Ann. 845. 48 Brady v. Brady, 78 Md. 461. si Brady v. Brady, 78 Md. 461. So a bequest of "my money not on 52 Harshaw v. Harshaw, 184 Pa. deposit" in a certain bank is not St. 401. adeemed by testatrix's withdrawing 53 /^ re Wood (1894). 2 Ch. 577. the money from such bank and de- 54 Sittig v. Hance, 81 Md. 416. positing it in another bank. Pren- ss See Sec. 278, et seq. dergast v. Walsh (N. J.) 42 Atl. l049. LAW OF WILLS. 929 as has been said. But a sale or destruction of part of the prop- erty bequeathed effects an ademption of that part, but not of the residue undestroyed and belonging to testator at his death. §782. Ademption by compensation. — Realty. A legacy may also be adeemed by the delivery by testator to legatee, during the lifetime of testator, of some thing of value, intended as a compensation for such legatee. This branch of the doctrine of ademption is often classed under the head of Satisfaction.^*^ Satisfaction has, however, another technical meaning which will be discussed subsequently.^'^ This branch of the doctrine of ademption is also sometimes spoken of as Advancements.^^ Technically, however, the doctrine of ad- vancements is applicable only to cases where testator dies in- testate, unless where on his will he specifically directs certain gifts already made by him to be counted as advancements in equalizing the distribution of his estatc.^^ In Virginia it has been held that the doctrine of ademption by gift in the lifetime of testator applies to devises of real es- tate as well as to personal property.*'*^ In Delaware it has been said that a deed of the same land as that devised adeems the devise.^^ But the great weight of authority is contrary to this view, and in most jurisdictions it is well established that a de- vise of realty can not be adeemed by a payment of money in the lifetime of testator. °^ A devise of specific realty is not adeemed by deed of other realty.^^ "While no reason, on prin- 56 Carmichael v. Lathrop, 108 by conveyance of 400 acres of other Mich. 473. (In this case this doe- land together with certain person- trine is spoken of as "ademption or al property.) satisfaction," and the court, in ^i Marshall v. Rench, 3 Del. Ch. speaking of such gift, says that 239. the will "is to that extent satis- ^2 Marshall v. Rench, 3 Del. Ch. fied.") Fisher v. Keithley, 142 239; Weston v. Johnston, 48 Ind. Mo. 244; 64 Am. St. Rep. 56. 1; Campbell v. Martin, 87 Ind. 57 See Sec. 794. 577 ; Burnham v. Comfort, 108 N. 58 Fisher v. Keithley, 142 Mo. Y. 535 ; 2 Am. St. Rep. 462 ; Al- 244; 64 Am. St. Rep. 560. len v. Allen, 13 S. Car. 512; Clark 59 See Sec. 786. v. Jetton, 5 Sneed (Tenn.), 229. 6oHansbrough v. Hooe, 12 Leigh. 63 gwails v. Swails, 98 Ind. 511; (Va.), 316; 37 Am. Dec. 659. (In Fisher v. Keithley, 142 Mo. 244; 64 this case a devise of 2,000 acres of Am. St. Rep. 560. (In this ease land to A was held to be adeemed the court said: "All the authorities 930 LAW OF WILLS. ciples of justice and equitv, seems to exist for the distinction made between a bequest of personal property and a devise of real estate, yet the distinction has ever been most uniformly made by the courts, not because the equities are not the same, but because of the safeguards that have ever been thrown around the transfers of realty and contracts by which titles are affected."*'* §783. Ademption by compensation. — Personalty. — Where testa- tor in loco parentis. The doctrine of ademption by gift in testator's lifetime ap- plies, therefore, only to the ademption of bequests and legacies of personal property by means of a gift made by testator to such legatee as a substitute for such legacy. Where the inten- tion of testator that the gift shall be a substitute for the legacy is clearly established, the legacy is adeemed.^^ Where, on the other hand, testator specifically provides that "advances made, and that may hereafter be made, be treated not as advances, but as gifts, not in any manner to be accounted for," his in- tention that the advancement shall not adeem the legacy is clear, and must be enforced.*'*' Where, however, testator's intention does not appear clearly, the question presented is what presumption arises as to testator's intention? In deter- mining what testator's intention shall be presumed to be, the so far as we are advised, except one, receipt as part of such amount as which we will notice further on, testatrix might see fit to give, was agree that the doctrine of ademp- held not to be an ademption of a tion only applies to a bequest of legacy given thereafter by will, personal property. We find but one Robbins v. Swain, 7 Ind. App. 486. case in the absence of statute in In this case the will made no ref- which it has been held applicable erence to the receipt, and it ap- to the devises of real estate.") The peared from the subsequent decla- one case referred to is Hansbrough rations of testatrix that she in- V. Hooe, 12 Leigh, 316, already cited. tended the legacy to be in addition 04 Fisher v. Keithley. 142 Mo. to the gift inter vivos. So Jones 244; 64 Am. St. Eep. 560. v. Eichardson, 5 Met. 247. 68 Gray v. Bailey, 42 Ind. 349 ; 66 Adams v. Cowen ( U. S. ) Jaques v. Swasey, 153 Mass. 596. (1900), 20 S. Ct. 608, affirming 80 A gift before the execution of the Fed. 448. will, for which the donee gave a LAW OF WILLS. 931 first distinction is between the cases in which testator stands in loco parentis to the beneficiary, and those in which he does not. Where the testator stands in loco parentis to the benefi- ciary, a gift of an amount equal to or greater than the legacy will be presumed to be an ademption of the legacy, and a gift of a less amount will be presumed to be a pro tanto ademp- tion.^^ At one time it was held that a gift in the nature of an advance of a part of the legacy operated as an ademption of the whole legacy on the theory that testator was presumed to intend the gift as a substitute for the legacy, and he was the best and only judge of how much the legatee ought to receive by way of compensation.*58 Tliis rule is probably not in force now in any jurisdictions and a gift of a part of the legacy is held a pro tanto ademption only.^^ At one time it was apparently held that implied ademption did not exist where the original gift by will was of an indefinite amount, impossible of estimation, such as' a residuary gift.'^° In order to operate as an ademption the gift must be an absolute one. A gift to the son for his life with remainder to the parent mating the gift is not to be regarded as ademp- tion.-^! The rule that an ademption is presumed where a gift is made by one in loco parentis to the beneficiary, is purely a rule of prima facie presumption and is always subject to be rebutted by shoAving that testator intended such gift as a sep- arate and additional gratuity, and not as a substitute for the legacy.'^^ 67 Trimmer v. Bayne, 7 Ves. 508 ; 565 ; Hopwood v. Hopwood, 7 H I Ex parte Pye, 18 Ves. 140; Shudall Cas. 728; Wallace v. Du Bois, 65 V. Jeykl, 2 Atk. 518; Tanton v. Md. 153; Carmichael v. Lath'rop Keller, 167 111. 129; 47 N. E. 376; 108 Mich. 473. Weston V. Johnson, 48 Ind. 1 ; Car- to Freemantle v. Banks, 5 Ves. miehael v. Lathrop, 108 Mich. 473: 79; Clendening v. Clymer, 17 Ind. Van Houton v. Post, 33 N. J. Eq. 155. 344; Cory v. Lentner, 10 W. L. 7 1 Wheeler v. Humphries^, [H. J. (Ohio), 246. L.]; 67 L. .T. Ch. N. S. 499, af- <^^Ex parte Pye, 18 Ves. 140. firming 66 L. .1. Ch. X. R. 236. 69Pym V. Lockyer, 5 Myl. & C. t2 Robbins v. Swain, 7 Ind. App. 29 ; Montague v. Montague, 15 Beav. 486. 932 LAW OF WILLS. §784. Where testator not in loco parentis. Where testator does not occupy the relation of the parent to the beneficiary, a gift made by testator to the beneficiary is not presumed to be an ademption of the legacy.''^ This dis- tinction has often been criticised as harsh and unjust, since it gives an advantage to legatees who are not closely related to testator over those who are, but, even where criticised, has been recognized as too firmly established to be shaken.'^^ The reason given for such distinction is that the law must presume that one standing in the relation of a parent intends to depart from equality in the distribution of his estate only in so far as indicated by his will. The old reasons given by Lord Hardwick are : "This court inclines against double portions. Another good one: the court considers it as a performance of what was intended to be done and paying the debt of nature which he owed to his child." '^^ Similar reasons have been repeated in later de- cisions.^^ But where testator, though not in loco parentis to the beneficiary, makes a provision for the beneficiary by will which appears to have been a compensation for services, and thus intended as a satisfaction of the debt, it is held that such leg- acy is adeemed by giving a subsequent check for the amount of the legacy.'^'^ §785. By what gifts ademption is affected. The presumption that a gift by testator standing in loco parentis to the beneficiary is intended as an ademption of a legacy, applies only where the thing given is of the same kind 73 Watson V. Lincoln, 1 Amb. 609. The doctrine of this case 325 ; Wallace v. Du Bois, 65 Md. is a combination of the doctrine of 153; Carmichael v. Lathrop, 108 satisfaction and ademption. The Mich. 473. legacy given is regarded as condi- 74 Carmichael v. Lathrop, 108 tioned iipon the existence of the Mich. 473. debt which it was to satisfy, and 75 Watson V. Lincoln, 1 Amb. 325. accordingly is adeemed by the pay- 70 Wallace v. Du Bois, 65 Md. ment of such debt, even though the 153; Fisher v. Keithley, 142 Mo. testator did not occupy the paren- 244; 64 Am. St. Rep. 560. tal relation to the beneficiary. 77 Turner's Estate, 167 Pa. St. LAW OF WILLS. 933 as that bequeathed.'^® Thus, where testator left a certain sum of money for the education of the minor children during their minority, it was held that this legacy was not adeemed by the fact that testator expended some money for educating one of such children and that they had come of age before his death.'^^ A legacy may be adeemed, according to modern authority, by a gratuitous conveyance by testator to legatees of certain realty.®" Ill— ADVANCEMENTS. §786. Advancements. — General rule. The general rules for the subject of advancements apply, ordinarily, only in case of intestacy and have no application where testator by will disposes of his entire estate, since the will merges all advancements made by testator to the bene- ficiaries up to the date of the execution of the will.®^ The effect of testator's giving the property to the beneficiaries after making the will comes under the title Ademption and is there discussed.®^ But where testator, by will, specifically provides that in certain contingencies which eventually occur, the resi- due of his estate shall descend as if he had died intestate, advancements made by him must be taken into account just as in cases of intestacy.®^ §787. Advancements provided for by testator. A testator, however, may and often does provide expressly in his will that advancements which he has made to his chil- dren in his lifetime shall be deducted from the shares given to T8 Goodfellow V. Biirchett, 2 Vern. (1900). 20 S. Ct. 668, affirming 298 ; Saville v. Saville, 2 Atk. 458 ; 80 Fed. 448 : Condell v. Glover, 56 Ray V. Stanhope, 2 Ch. Rep. 159. 111. App. 107 ; Lyon's Estate, 70 79 Bird's Estate, 132 Pa. St. 164. To. 375; Jones v. Richardson, 5 For the effect of republication upon Met. 247. ademption, see Sec. 308. 82 See Sees. 782 to 785. 80 Carmichael v. Lathrop, 108 83 Trammel v. Trammel, 148 Ind. Mich. 473. 487. 81 Cowen V. Adams (U. S.) 984 LAW OF WILLS. them by will. Full effect is, of course, given to such direc- tions.*^ A provision that in case testator's account-books do not show that he has paid a certain amount annually for a certain pur- pose, his executor shall pay such sum as will make up such amounts, is in legal effect a direction to j)i\y the entire annual sum multiplied by the number of years prescribed, less such amounts as testator had paid and is a valid bequest.*^ The use of the word "advancements" is not, however, con- clusive. Thus, a provision in a codicil modifying the provi- sions of the will because of "larger advances" made by testator to some of his children than to others, shows that testator does not intend such gifts to be charged as advances under the codicil.*^ A specific direction to charge certain advancements against A's share is not avoided because the will further at- tempts to limit A's share upon a trust void as against per- petuities.*^ While testator's will is conclusive as to what are to be counted advancements and what a.e not, the omission to enumerate among the advancements sums loaned to a son for which notes and a mortgage were given by such son does not prevent such notes and mortgage from being a part of testa- tor's estate.** Where testator provides in his will that any advancements or loans made by him to certain named legatees shall be treated as gifts and shall not be accounted for, full effect is, of course, given to such provision and the property is distributed in accordance with the provisions of the "will, irre- spective of advances.*^ The questions presented under this topic for judicial discussion are chiefly those of the construc- 84 Stewart v. Stewart, L. R. 15 ss Holmes v. Coates, 159 Maas. Ch. D. 539; Blackstone's App. 64 226. Conn. 414; Eller v. Lillard, 107 se Whitman v. White, 19 R. I. N. C. 486; Eickelberger's Estate, 431. 1.35 Pa. St. 160; Snider v. Snider, st Dean v. Mumford, 102 Mich. 149 Pa. St. 362; McConoray's Es- 510. tate, 170 Pa. St. 140; Kennedy y. ss Eisenbrey's Estate, 180 Pa. St. Badgett, 26 S. C. 591; Fielden v. 125. Ballanger (Tenn. Ch. App.), 35 S. so Cowen v. Adams. 78 Fed. 533; W. 758. Vitt V. Clark, 66 Mo. App. 214. LAW OF WILLS. 935 tioii of such provisions, the usual questions being how the ad- vances are to be estimated, and from what the advances are to be deducted. §788. How advances are to be estimated. Where testator does not indicate any method of ascertaining the value of advancements, but merely directs that the advancements made by him be deducted from the shares of certain legatees, the word "advancements" is construed with its ordinary common law meaning. Advancement at common law is a gift to a presumptive heir^ devisee or legatee by way of anticipation of his share of donor's estate.^^ In the absence of evidence showing testator's in- tention, property conveyed by him as a permanent provision for donee is I'egarded as an advancement. But gifts of small sums to donor's children to be used for actual support and maintenance will not be regarded as an advancement in the absence of evidence of testator's intention.^^ If testator in his will states the amount of advances which are to be deducted from the shares given by will, full effect must be given to this provision, even though the advances treated as debts would be barred by limitations, and no other evidence exists as to what amounts are.^^ But a direction in a codicil that $900 be deducted from the share of A, and the balance paid to A's wife, is not a gift to the six other beneficiaries of $900, but only six-se\"entlis of nine hundred dollars, since A's share is charged with an advancement in favor of all the beneficiaries including A. * So where testator in his will provides a means for estimating the value of real estate conveyed by him as an advancement, this method must be followed.^^ 9" Millar's App. 31 Pa. St. 337; 600; 69 N. W. 1033 (69 N. W. Farnum's Estate, 176 Pa. St. 366. 438). In this case testator provided 91 Carmichael v. Lathrop, 112 that the value of the advancements Mich. 301. should be estimated as follo^vs: 92 Eichelberger's Estate, 135 Pa. "The consideration named in the St. 160. conveyance to be considered for pur- *McConomy's Estate, 170 Pa. St. pose of settlement; the amount of 140. advances or if no sum is named, the 93 Ballinger v. Connable, 100 lo. actual cash value of the same at 936 LAW OF WILLS. Testator's provisions concerning advancements are con- strued as far as possible in accordance with the general rules on the subject of advancements. Thus, a direction that testa- tor's son shall, in settling up the estate, charge himself with a bond given to him by testator, is treated as merely a direc- tion that snch bond shall be regarded as an advancement and is not a gift of the entire amount of the bond to the other legatees.^^ Where testator makes no provision in the will for determining the amount of advancements it is held that the actual value of advancements made bv testator at any time before his death must be taken as the means for determining their value.^^ The value at testator's death is sometimes said to be the value at which such advancements should be charged.^^ As advancements are gifts outright, interest is not to be charged upon such advancements against the legatee or devisee unless testator expressed such an intention clearly in his mll.^^ A direction to reduce the shares of income given to certain leg- atees "by an amount equal to the interest at 6 per cent of said sums . . . advanced" is not a clear expression of testator's intention to charge interest on the advancements.^* Where testator leaves a fixed amount to certain beneficiary, less the amount of certain notes which testator held against the father of such beneficiary, it was held that only the face of the notes, the time of the division of the es- distributed the property to this son, tate, shall be considered its va^ue." including improvements made by In one deed the ccmsideration re- the son, must be taken as its value cited was $1.00 and natural love for purposes of advancement. and affection. The son, however, at ^* Moorman v. Crockett, 90 Va. the same time signed an agreement 185; so McConomy's Estate, 170 fixing the value of the realty for Pa. St. 140 ( hence the maker of the purposes of charging him as an ad- bond retains his share of the debt vancement. It was held that the in the settlement). amount thus agreed upon and not 95 Vitt v. Clark, 66 Mo. App. 214. the cash value of the realty should as Young v. Sadler, (Ky.), 24 S. be taken in estimating the value of ^^- 877: 15 Ky. L. R. 531. the advancement. It was also held ^"^ Farnum's Estate, 176 Pa. St. where testator had allowed a son to 366 ; Porter's Appeal, 94 Pa. St. take possession of certain realty and 332 ; Miller's Appeal, 31 Pa. St. make valuable improvements there- 337. on. but had not transferred the title ®^ Farnum's Estate, 176 Pa. St. thereto, that the cash value of this 366. property, at the time the executors LAW OF WILLS. ^*" without interest, should be deducted from the legacy, where testator evidently intended the amount given to provide for the maintenance and education of beneficiary and leave a residuum, a result which would be impossible if interest were to be charged upon the notes.^^ Where testator specifically directs that inter- est is to be charged upon advancements, full effect must be given to such provision.^'^o Where testator gave to his daughter "the advances she has received as per private account," it was held that it gave to the daughter the balance which she owed testator, as shown by his private account at the time of his death.^*'^ A direction in testator's will that no deduction should be made "from any share of any of my children by reason of any sums which I have given or advanced to or account of either of them," does not release liability for a loan made by testator to a firm to which one of his children was a mem- ber.i«2 §789. Legacies from which advancements may be deducted. Where testator makes specific devises and bequests and dis- poses of his property by a residuary clause with a direction that advancements be accounted for, it is usually held that ad- vancements are to be deducted only from the residuary gift,^*'^ and where testator directed that if certain advancments should exceed a certain son's share in the estate, his share should then consist of what he already received and his note should be canceled, it was held that the "share" referred to the distribu- tion in the Probate Court and that the son was not thereby debarred from an interest in an executory contingent bequest which depended upon the death of a brother without issue.^"" Advancements made to one can not be deducted from the legacy 90 Garth V. Cxarth, 139 Mo. 456; taken the note of the firm together 41 S W 238 "^^'^^^ coHateral security.) looHaysv.' Freshwater (W. Va.) los Eller v. LiUard, 107 S. C. ( 1899) , 34 S. E. 831. 486 ; Hughes v. Kirkpatrick, 37 S. C. loiVitt V. Clark, 66 Mo. App. 161. .104 Glover v. Condell, 163 111. 566. 102 Rogers V. Maguire, 153 N. Y. reversing 56 App. 107. 343. (The testator in this casQ had 988 LAW OF WILLS. to another/"^ unless testator by his will specifically so pro- vides.^ ^"^ In the absence of any provision in the will, it is not admissible to show by parol that testator intended that a loan to a son-in-law should be deducted as an advancement from the legacy to testator's daughter, the wife of such son- in-law.i^"^ §790. Where advances exceed legacy. It is sometimes impossible to carry testator's intention into effect literally. Thus, where the advances made to certain bene- ficiaries exceeded the shares from which such advances are to be deducted, the court will apply this legacy to equalizing the shares of those receiving the smallest advancements as far as the legacies available will so do.^*^^ A direction that the notes held by testator against a certain son are to be treated as ad- vancements and deducted from his share operates as a gift of such indebtedness, although the son received no share of the estate from which the note could be deducted.^^^ IV— CONTRIBUTION. §791. Property taken for testator's debts in order of priority. Since the rights of creditors of testator are paramount to those of the devisees and legatees, property either specifically or generally devised or bequeathed is not infrequently sold for 105 Erwin v. Smith, 95 Ga. 699 ; should be set off against a certain Albert v. Albert, 74 Md. 526 (the legacy. This legacy was payable amount charged on testator's books in equal proportions to A and his against a deceased son can not be children. It was held that in th(! charged against the children of such settlement, the advancements to A son) ; Coyne v. Boyce, 78 Md. 22. were to be deducted from the entire (Thus a direction to pay the debts legacy, and not merely from A's of a certain son and to charge such share thereof.) debt and advances made to him iot Erwin v. Smith, 95 Ga. 699. against his share of the estate, was los Board v. Love (Ky.). 42 S. held to direct that such debt be W. 733; 19 Ky. L. Rep. 1121; Cope paid out of the son's share only.) v. Farmer, 8 O. C. C. 145. 106 Price v. Douglass, 150 Mass. io9 Snider v. Snider, 149 Pa. St. 96. (In this case testator provid- 362. ed that certain advances made to A LAW OF WILLS. 939 the payment of testator's debts. When this is done, the question arises whether the beneficiaries whose interests have been dis- appointed by such sale have a right to call on other beneficiaries for compensation for the entire amount of the devise or legacy of which they are thus deprived, or for a pro rata contribution in order that the burden may be borne equally or whether the loss must lie with such devisee or legatee. The doctrines ap- plicable to this subject are but little more than a re-statement of the doctrine of abatement and charge of legacies. If the property devoted to the payment of testator's debts has been taken in the order of priority required by the doctrines of abatement and a charge upon legacies, a disappointed lega- tee can not call upon other beneficiaries whose gifts have a priority over his for either compensation or contribution.^^'* Thus, where devised land is encumbered with a lien incurred by testator for which lie is personally liable, and the entire personal property of testator has been applied to the payment of such lien, a disappointed legatee can not call upon the de- visee of such property for contribution.^^* §792. Property taken for testator's debts out of order of priority. Where property is taken for the pavment of testator's debts, which is given by a legacy or devise having priority over gifts of other pieces of property which are not taken for testator's debts, the disappointed beneficiary may have compensation for the loss of his property in full from such beneficiaries, and where several legatees or devisees are on a footing of equality with reference to the pavment of their devises or legacies, and property given to one of them is taken for payment of testa- tor's debts, that one may have pro rata contribution from the other devisees and legatees for the loss of his gift.-^*^ Where a fund which should have been taken first for paying debts and 110 Duffield V. Pike, 71 Conn. ,521 ; "2 Coapland v. Lake, 87 Tex. 261 ; Todd V. McFall, — Va. — (1899) : 9 Tex. Civ. Apj). 39. 1 Va. S. C. Rep. 166; 32 S. E. 47-?. 111 Todd V. McFall. — Va. — (1899) ; 32 S. E. 272. 940 LAW OF WILLS. taxes is paid to certain legatees, the amount thus taken may- be withheld from other funds payable to them, so that the burden may not be cast upon a preferred beneficiary.^ ^^ Where testator by will specifically provides that certain legatees must contribute for any loss to the estate which the executor may have to pay on account of testator's being a security for others, it is held that such direction does not call for contribution for losses which testator paid before his death.^^^ §793. Failure of title. The question of contribution and compensation is sometimes raised where the title to property bequeathed or allotted fails. Ordinarily, where the title to a chattel or piece of realty specif- ically given by will fails, the specific devisee or legatee has no right of contribution against other beneficiaries; however, where testator's intention is evidently that his estate shall be equally divided, and he allotted specific property merely for the purpose of creating an equal division, it has been held that where title to certain property fails because of facts which were not known to testator, the disappointed beneficiary may have contribution from other beneficiaries. ^^^ The right of contri- bution where title fails is specifically given by statute in some jurisdictions. This rule applies, however, only to specific gifts, and does not apply where the property is allotted by decree of distribution and is not specifically given by the will.^^*' Where a fund is lost by the conduct of the executors after it has been set apart out of testator's general estate, the beneficiary thus disappointed can not have compensation.^ ^'^ 113 Nelson v. Worthington, 3 App. compare Henry v. Griffis, 89 lo. D. C. 503. 543, where contribution was had 114 Ahalt V. Hersperger, 75 Md. for a pecuniary legacy lost by the 88. wrongful act of the executor. In 113 Lake v. Copeland, 82 Tex. this case, however, the will provided 464. that if there were not enough per- 116 Pusey V. Wathen, 90 Ky. 473. sonalty to pay the legacy, "the boys iiT Mills V. Smith, 141 N. Y. 256; is to pay enough to make it good." LAW OF WILLS. 941 Where a specific devise fails by the election of the widow to take her dower instead of under the will, the disap- pointed devisee can not have contribution from the residuary devisee. ■'^^ us Devecmon v. Kuykendall, 89 Md. 23. 942 LAW Oh' WJLLB. CHAPTER XXXVllI. SATISFACTION; AND CUMULATIVE AND SUBSTITU- TIONAL LEGACIES. . §794. By gift to debtor. In discussing the subject of advaiTcements we have already seen that if testator specifically releases a debt due him from another, full effect is given to such direction if it docs not in- terfere with the rights of testator's creditors.^ Where testator gives a legacy to one who is indebted to him, without any ex- pression of testator's intention to release such debt, the mere fact of giving such legacy does not of itsolf operate as a release of the debt.^ In such case the indebtedness may bo deducted from the legacy where the legacy exceeds the indebtedness as a convenient means of adjusting the mutual credits.^ Where part of the debt due to testator is secured, and part is unse- cured, the legacy may be deducted from tlie secured portion."* The right to credit the legacy against the indebtedness exists even where the indebtedness is evidenced by a note which, by iSee Sec. 787. ^ In re Taylor (1894), 1 Ch. 671: 2 Hayward v. Loper, 147 I"il. 41, Hayward v. Loper, 147 111. 41 ; affirming 49 111. App. 53; Spath Sleeper v. Kelley, 05 N. H. 200: V. Zie.cler. 48 La. Ann. 1168; Sleep- Chaffee v. Maker, 17 R. I. 739. er V. Kelley, 65 N. H. 206 ; Bailey's * Sleeper v. Kelley, 65 N. H. 200 Estate, 153 Pa. St. 402; Chaffee V. Maker, 17 R. I. 739. LAW OF WILLS. "^ mistake, was drawn to nm for tbe life of the maker instead of the life of the testator.^ Xor is the debt released by the omis- sion to enumerate it among the advances made by testator to his children, where the debtor (testator's son) had given his notes and mortgage for such debt.« A gift to a debtor of a cer- tain sum "inclusive of" the note of such debtor, held by testa- tor, does not show an intention to give the legacy and the debt.'' ^795. By gift to creditor.— Where satisfaction presumed. If testator gives property by will to one to whom he is in- debted, it is often difficult to determine whether testator in- tended this legacy in satisfaction of the debt, or in addition to it. If testator's intention does not appear in the will, the fol- lowing distinction is generally adopted by the courts : If the legacy given to the creditor is equal to or greater than the amount of the existing debt, and is of the same nature, is payable in a manner equally advantageous to the creditor, and no specific motive is assigned for the gift, the legacy will be considered as a satisfaction of the debt.^ In some jurisdictions it is held that there is never a pre- sumption that a gift is intended as a satisfaction of a debt, but that testator's intention must appear on the will to cause this result.^ §796. By gift to creditor.— Where no satisfaction presumed. But, in the absence of any of these elements, the legacy is not considered as a satisfaction of the debt. Thus, where the legacv is less in amount than the debt,^^ or is payable at a longer time than the original debt,^^ or upon terms less ad- .Ha.-M-ard v. Loper, 147 111. 41, 17 S. W. 742; so by statute. Jack- affirming 49 111. App. 53. son's Succession 47 La^ Ann. 108 J. eEisenbrev's Estate, 180 Pa. St. lo /„ re Horlock 189.3), 1 Cb. 516; Thompson v. ^^ ilson, 82 111. 7 Pepper's Estate, 154 Pa. St. 340. App. 29; Stone v. Pennock, 31 Mo. sFetrow v. Krause, 61 111. App. App. 544. ^ , ^ ^,^.., . ^, 238; Adams v. Adams,- 55 X. J. Eq. ^^ /« re Horlock {189o), 1 Ch. 42. » Lisle V. Tribble (Ky.), 1892: 510. 944 LAW OF WILLS. vantageous to the creditor/^ the legacy is considered as a gift, independent of the debt, and not a satisfaction. A bequest to a creditor contained in a will, executed after the debt was incurred, but before the exact amount was ascer- tained, was not considered prima facie as a satisfaction of such debt.^^ So where testatrix was indebted to her children in various indefinite amounts, arising out of her guardianship of their estate during minority, and she bequeathed all her estate to them, share and share alike, it was held that this was not in- tended in satisfaction of the debts due from her to them. Hence, where she subsequently paid one of her children in full, it was held that upon final distribution of her estate the one thus paid was not preferred to the others by the amount of the debt.^^ It is still clearer that where the indebtedness is in- curred after the will is executed a legacy given by will can not be considered prima facie as a satisfaction of such indebted- ness.^^ §797. Where testator directs satisfaction. Where testator's intention is clearly expressed in the will, either that the legacy is a satisfaction or is not, full effect will be given to this direction ; subject, of course, to this condition that, if the legacy is given as a satisfaction of the debt, the creditor has the election whether to adopt the legacy or to col- lect the debt.^^ Thus, testator provided by will for the pay- ment of a note described as a note of $12,000 due to A. The only note which testator owed A was one for $10,000. It was held that testator merely intended a satisfaction of the debt actually due to A ; and did not intend to give A a legacy of $12,000, of which $10,000 was in satisfaction of the note.^^ 12 stone V. Pennock, 31 Mo. App. i* Glover v. Patten, 165 U. S. 544. 394. 13 Glover v. Patten, 165 U. S. is Sullivan v. Latimer, 38 S. C. 394; Reynolds v. Robinson, 82 N. Y. 158. 103; Heisler v. Sharp, 44 N. .T. Eq. is .Jackson's Succession, 47 La. 167; Crouch v. Davis, 23 Gratt. Ann. 1089. (Va.) 62. 17 Wildberger v. Cheek, 94 Va. 517. LAW OF WILLS. 946 A general direction by testator that his debts should be paid has been held sufficient to show his intention that a legacy to a creditor should not be treated as a satisfaction of the debt due to such creditor. ^^ Where the reference to the creditor as such is intended merely as a description, it will not be held to be a direction for satisfaction.^^ II— CUMULATIVE AND SUBSTITUTIONAL LEGACIES. §798. Cumulative and substitutional legacies. — Where testa- tor's intention is expressed. If testator, by will, or by will and codicil or codicils, makes two or more gifts to the same person or persons, the question arises whether the second gift is intended by testator to be in addition to the first, or as a substitute for the first. If the sec- ond legacy is intended by testator to be given in addition to the first legacy, the second is commonly spoken of as a ''cumulative legacy." If the second legacy is intended by testator to be given in the place of the first, it is commonly spoken of as a "substitutional legacy." If testator has expressed his intention that the second legacy shall either be a substitute for the first, or in addition to it, the question is a simple one, for testator, of course, has power to give more than one legacy to the same person, or to revoke the first legacy, and, if he pleases, to substitute another therefor. Accordingly, where language is used which shows that testator intended to revoke the first legacy and give the second as a sub- stitute for the first, full effect is given to such intention. ^^ Any form of language which shows the testator's intention to substitute the second gift for the first will be sufficient. The 18 In re Huish, L. R. 43 Ch. Div. as a satisfaction of his claim of pro- 260; Wade v. Dean (Ky. ), 43 S. W. fessional services). 441; 19 Ky. L. Rep. 1426. 20/^ re Freme's Estate (1895). 19 Swing V. Gatch, 7 Am. Law 2 Ch. 778 ; Hollyday vs. HoUyday. Rec. 5; 3 Weekly Law Bull. 571 (a 74 Md. 458; Hard v. Ashley, 117 gift to "my good, kind, attentive N. Y. 606; Whelen's Estate, 175 physician," held not to be intended Pa. St. 23. 946 LAW OF WILLS. expressions commonly used are "instead tliereof,"^^ or, "in lieu thereof,"^^ or, "in place and stead thereof. "^^ So, where tes- tator expresses his intention to give a devise or legacy in addi- tion to that given by will, the legacy or devise is unquestion- ably cumulative. Thus, where testator provided that the sec- ond legacy should be "in addition to the same,"^^ or that it should be paid "further,""^ it was held to be cumulative. §799, Presumption where testator's intention is not expressed. It very frequently happens, however, that testator does not indicate whether his intention was to give a substitutional or a cumulative legacy. In such a case, the courts endeavor to dis- cover the intention of the testator from the whole instrument, and have built up a series of rules as to the presumptions which arise under given states of fact. These presumptions, how- ever, yield very readily to anything in the will which shows tes- tator's intention.^^ The presumption either way, whether against cumulation because the legacy is repeated in the same instrument, or whether in favor of it because the legacy is by different instru- ments, is liable to be controlled and repelled by internal evi- dence and the circumstances of the case.^^ Where the gift is specific, little question can arise as to whether it was substitutional or cumulative. If the evidence 21 Freme's Estate (1895), 2 Cli. and courts of equity upon the sub- 778; Hollyday v Hollyday, 74 Md. ject of single or cumulative lega- 458. cies, we must come down to the 22 Hard v. Ashley, 117 N. Y. 600. plain, common-sense question of, 23 VVhelen's Estate, 175 Pa. St. what was the intention of the testa- 23. tor?" Jones v. Creveling, 19 N. J. 24 Thompson v. Churchill, 60 Vt. Law, 127. (While this case was 371 ; so Townsend v. Mostyn, 26 reversed in 21 N. J. Law. 573, by Beav. 72. a divided court, as to the particular 25 Burkinshaw v. Hodge, 22 W. application of the rules of presump- R. 484; Ledger v. Hooker, 18 Jur. tion to the particular facts, the 481. general principle stated was rec- 26 "After a careful examination ognized. ) of the cases cited on the argument, 27 DeWitt v. Yates, 10 .Johnson, and of many others, notwithstand- 156. These cases are quoted and ing all the nice distinctions that cited with approval in Edwards v. have been taken by courts of law Rainier, 17 O. S. 597. LAW OF WILLS. 947 identifying the language given shows that the same property was disposed of twice by the same person, there can, of course, be no claim that other property was disposed of. The question is purely one of the identification of the property referred to in the will.^^ The real difficulty arises where 'the gift is a general legacy — such as the gift of a sum of money. In such case, it is a priina facie rule of presumption that if two or more legacies are given to the same person, each by a different instrument — such as by a will and a codicil, or by more than one codicil — the presump- tion will be that the gifts are intended by the testator as cumu- lative.2^ If the second gift is different in nature or in amount, the prima facie presumption is that it is intended as a cumula- tive gift, even if given in the same instrument.^^ Where testator expressed his motive or reason for making the gift, and the motive or reason is the same for the two gifts, it may show that the second gift is substitutional, and not 2? Suisse V. Lowther, 2 Hare, 424. 20 Manifold's Appeal, 126 Pa. St. 508, citing and quoting Roper on Legacies, 996: "If the legacies are given by the same instrument, and are of the same nature and amount, the presumption is that the secoml is a substitutional and not a cum- ulative legacy," Creveling v. Jones, 21 N. J. Law, 573. In this case the provision of the will was as follows: "I give unto C. J. & D. J. each, four hundred dollars, to be paid to them by my executors ; if they are not of age at my decease, I order my executors to pay each of them yearly, and every year, the interest on four hun- dred dollars until they arrive at age. I further order my execu- tors to pay out of my estate to C. J. four hundred dollars one year after my decease, and to pay D. J. four hundred dollars two years after my decease, in full of their legacies, be- queathed to them." The court was urged to consider the word "further," as showing tes- tator's intention to make a cumu- lative legacy. This view was taken below in Jones v. Creveling, 19 N. J. Law, 127, but this decision was finally reversed by a divided court, where it was held that the last clause was merely a direction for the payment of the legacy given in the preceding clause. So Wray v. Field, 6 Madd. 300; Dickinson v. Overton, 57 N. J. Eq. 26. 3oAdnam v. Cole, 6 Beav. 353: Curry v. Pile, 2 Bro. C. C. 225. Contra where given in same in- strument. Dickinson v. Overton, 57 N. J. Eq. 26. 948 LAW OF WILLS. cumulative, even though it is given by a later instrument,^'' or it is different in amount from the first gift.^^ A slightly different case involving the same principle is that in which the question for the court to determine is, whether a second provision for payment is intended as an additional gift, or is merely a direction as to the manner of paying the legacy previously given. If any provision is made for the payment of the first legacy, and if the second provision directs the time or means of paying a legacy of the same amount to the same per- son, the presum])tion is that the second provision is not an ad- ditional gift, but is merely a provision for paying the legacy already given."*^ If the two legacies are payable at different times and places, the presumption is that they are cumulative, even though they are given in the same instrument.^^ Where the two gifts are given in the same instrument to the same beneficiary, and are of the same amount and value, the prima facie rule is that, in the absence of anything showing a con- trary intention, the legacies are presmned to be substitu- tional.^^ 31 Hurst V. Beach, 5 Madd. 358; 21 R. R. 304. 32 Sears v. Hardy, 120 Mass. 524. In this case the provision was that testator's son should receive $30.- 000, to be paid to him at the age of 21 ; and when he should be 21 years old, "I direct that four thou- sand dollars be paid to him annu- ally : when he shall be twenty-five years old, six thousand dollars per year, and ten thousand dollars per year when he shall be thirty years old." It was held that the annuity of six thousand dollars a year, being for the support of the son, was a substitution for that of four thou- sand dollars, and the annuity of ten thousand dollars was a substitute for that of six thousand dollars. 33 Creveling v. Jones, 21 N. J. Law, 573. (In this case the second provision fixed tne time of pay- ment.) Powell's Estate, 138 Pa. St. 322. (In this ease, testator devised three thousand dollars to his daugh- ter, one thousand dollars each to two of his sisters, and then by will provided that certain stock should be sold in order to pay "the above funeral expenses, and five thousand dollars to my daughter and sis- ters.") It was held that this was a direc- tion for the means of paying a leg- acy already given, and not an ad- ditional legacy. So Early v. Ben- bow, 2 Coll. C. C. 342; 15 L. J. Ch. 169; 10 .lur. 169. 34lngelfield v. Coghlan, 2 Coll. C. C. 247; Thompson v. Teulon, 22 L. J. Ch. 243 ; 1 W. R. 97. 35 Brennan v. Mo ran, 16 Ir. Ch. 126: Garth v. Meyrick, 1 Bro. C. C . 30 ; Manning v. Thesiger, 3 Myl. & K. 29; 4 L. J. Ch. 285; Dickin- son V. Overton, 57 N. J. Eq. 26. LAW OF WILLS. 949 §800. Incidents of substitutional and cumulative legacies. Where a testator makes a devise or bequest by a later instru- ment, such as a codicil which is held to be substitutional in its nature, and in lieu of the legacy or devise previously given by will, it is held that if the original legacy or devise con- tained any qualifications or limitations of any sort the substi- tutional legacy or devise is to be considered as given subject to the same qualifications and limitations, unless testator's inten- tion to the contrary clearly appears.^^ Thus, a testator, by a will, devised the proceeds of a certain ranch to A, subject to the payment of certain specified legacies out of such proceeds ; and, by a codicil executed after the death of A, he provided that "the amount I did bequest" to A should be paid to B. It was held that B took the. proceeds of the ranch subject to the payment of the legacies mentioned in the will.^'^ Where the residuum was to be equally divided among the children, deducting advancements made to them, and a subse- quent codicil revoked the gift to one of testator's sons and gave it instead to the wife of such son, it was held that she took sub- ject to advances made to the son.^* On the principle already stated in the text, a substitutional gift, or a legacy which Avas made a charge on a specific fund, was payable out of the same fund as the original gift.^^ Where 36 Freme's Estate (1895), 2 Ch. as is the original legacy, irrespec- 778 ; Duncan v. Duncan, 27 Beav. tive of whether the result is ad- 392; Bristow v. Bristow, 5 Beav. vantageous to the legatee." De 289; Johnstone v. Harrowly, 1 De Laveaga's Estate, 119 Cal. 651. G. F. & J. 183; 29 L. J. Ch. 145; 37 De Laveaga's Estate, 119 Cal. 6 Jur. (N. S.), 153; 1 L. T. 390; 651; Whelan's Estate, 175 Pa. St. 8 W. R. 105; De Laveaga's Estate, 23. 119 CaL 651; Tilden v. Tilden, 13 38 Buehler's Appeal, 100 Pa. SL Gray, 103; Buehler's Appeal, 100 385. P(a. St. 385 ; Hollyday v. Hollyday, 39 Hollyday v. Hollyday, 74 Md. 74 Md. 458; Hard v. Ashley, 117 458. In this case the codicil pro- N. Y. 606; Fife v. Miller, 165 Pa. vided: "I do hereby revoke said St. 612; Whelen's Estate, 175 Pa. legacy, and instead of four thousand St. 23. dollars I hereby give to my said "A substitutional or additional sister, at my death, three thousand legacy is prima facie payable cnit dollars." The claim was made that of the' same funds, and subject to this was an independent, and not a the same incidents and conditions substitutional, gift; but the court 950 LAW OF WILLS. a bequest is specifically given as additional to one already made, the additional bequest is held to be upon the same con- tingencies as the original one, if such construction will not cause inconsistencies in the will.'*'^ Where, however, a subse- quent gift is not properly substitutional, but is made by reason of a failure or revocation of a preceding gift, it will not be pre- sumed that the latter gift was upon the same conditions as the earlier one. Thus, where testator bequeathed property to a granddaughter, to be paid upon her arrival at majority, and she subsequently died, and in a codicil executed afterwards tes- tator gave the same amount to another granddaughter, a sister of the deceased, it was held that, not being a case of substitu- tion, it was not presumed to be upon the same conditions.^^ held it to be a substitutional gift, codicil provided, "I hereby alter that with all the incidents of the or- part of my will ... so that it shall iginal. A similar view was taken read that my son-in-law, Samuel in Hard v. Ashley, 117 N. Y. 606, Fife, instead of only having a life where the will gave A a life estate estate in it, shall possess it as his with remainder to her children, and own, without let or hindrance," it the codicil revoked the devise, and was held that the son-in-law took o-ave a legacy to "A and her heirs a fee upon the same contingencies in lieu of the original gift." This as he would have taken the life es- was held to be a substitutional leg- tate, namely, upon the death of his aey, the word "heirs" being, under wife without children. Fife v. Mil- the circumstances, synonomous with ler, 165 Pa. St. 612. "children," and A taking a life es- 4o Thompson v. Churchill, 60 Vt. tate only. So, where by will a life 371. estate was given to one in case his *i Fry's Estate, 163 Pa. St. 30. wife died without children, and the LAW OF WILLS. 951 CHAPTER XXXIX. RIGHTS OF DEVISEES AND LEGATEES TO THE ENJOY- MENT OF PROPERTY GIVEN BY WILL. §801. Payment of legacies. The question when a legacy given by will is payable is a topic on the border-line between the law of wills and the settle- ment of decedent's estate, but, as it is affected by the nature of testator's will, it will be discussed in this connection. That a legatee has no interest in the legacy during the life of the testator is almost too elementary for mention.^ L^der most systems of law for settling decedents' estates, a legatee can not enforce the payment of his legacy out of debts due testator's estate. Payment can be enforced only by means of an execu- tor 2 §802. Where time is fixed by will. If testator provides specifically in his will at what time a legacy is to be paid, this direction will be enforced, provided, of course, it is not in violation of the rule against perpetuities. Thus, testator may devote part or all of his property to the sup- port of a designated person for life, and may provide either ex pressly or impliedly that other legacies given by will shall not 1 Hart V. West, 16 Tex. Civ. App. -' Nicholson v. Commissioners of 30.5. Dare County. 119 X. Car. 20. 952 LAW OF WILLS. be payable until the death of the life tenant.^ Thus, where tes- tator devised his estate to his wife for life, subject to the an- nual support of certain designated grandchildren, and further devised his land to one grandchild and specific legacies to other grandchildren, it was held that, although the time for paying such legacies was not specifically stated, they were clearly not payable until the termination of the life estate.^ In such case the fund can not be distributed until the death of the life ten- ant.^ Where a legacy is payable after a life estate, it is often difii- cult to determine what is the effect of the cessation of the life estate before the death of the life tenant. Where the will shows that the payment of the legacy is postponed till the death of the life tenant simply by reason of the creation of the life estate, the legacy is held payable upon the determination of the life estate, before the death of the life tenant.^ Thus, where a widow refuses to take a life estate, and elects to take under the law, legacies whose pa;\Tuent was postponed merely in order to provide for the life estate become payable at onceJ But, where testator expressly makes the legacy payable upon the death of the life tenant, the payment of such legacy is not ac- celerated by the determination of the life estate before the death of the life tenant.^ Where a legacy is given in such terms, neither the renunciation of the life estate,^ nor its conveyance to the remainder-man,^'^ nor the re-marriage of the widow to 3/» re Tredwell (1891), 2 Ch. e Trustees of Church Home, etc., 640; Johnson v. Webber, 65 Comi. v. Morris, — Ky. — (1896); 36 501 ; De Vaughn v. McLeroy, 82 Ga. S. W. 2 ; Hall v. Smith, 61 N. H. 687; Harvey v. Miller, 95 Ga. 766; 144. Bowling V. Miller, 133 Ind. 602; 7 Trustees of Church Home, etc., McChord v Caldwell, 96 Ky. 617; v Morris, — Ky. — (1896); 36 Southworth V. Sebree, — Ky. — S. W. 2 ; Hall v. Smith, 61 N. H. (1897); 41 S. W. 769; Lindsay v. 144. Zanoni, 6 O. C. C. 474; Hubert's »In re Tredwell (1891), 2 Ch. Estate, 181 Pa. St. 551; Lazier v. 640; Ford v. Krarabeer, 92 lo. 521; Lazier, 35 W. Va. 567. Lovell v. Charlestown, 66 N. H. 584, 4 McChord y. Caldwell, 96 Ky. 9 Lovell v. Charlestown, 66 N. H 617. 584. 5 Johnson v. Webber, 65 Conn. lo Ford v. Krambeer, 92 lo. 521. 501; Hubert's Estate, 181 Pa. St. 551. LAW OF WILLS. 953 whom a life estate had been given, provided she remained tes- tator's widow,^^ will hasten the time for the payment of the legacy. So, where testator provides that a certain legacy shall be paid to the beneficiary upon his arrival at majority, or some other specified age, the legacy is payable at the time fixed.^^ A provision that certain legacies are to be paid "whenever the youngest child of any daughter in being at my decease shall have reached the age of twenty-one years" was held to be pay- able when the youngest grandchild of testator reached the age of twenty-one.-^ ^ In case of the death of the beneficiary before reaching such age, the legacy, if vested, is payable at once to his administrator.^^ So the bankruptcy of the legatee may make the legacy payable at once.-^^ Testator may, for purposes of preservation of his estate, pro- vide for keeping it intact for a certain period. Where such a provision is made, legacies are not payable until the expira- tion of such period.^ ^ Testator may also make a legacy pay- able upon demand of the legatee.^'^ And, where testator made a legacy payable when legatee was eighteen years of age, or when she was of competent age to choose a guardian, or when she married, it was held to be payable upon demand of the guardian chosen by her upon arriving at the age of fourteen.^ ^ Where testator provides that a legacy shall be payable at a given time, the pa^^ment can not be postponed merely because payment at such time will be inconvenient for the estate.^ ^ Thus, where an annuity was payable on the first of April of each year, and made a lien upon certain real estate specifically ii/?i re Tredwell (1891), 2 Ch. " McReynolds v. Graham, 43 S. 640. W. 138; (Tenn. Ch. App). 12 Stein V. Gordon, 92 Ala. 532 •, is Sanford v. Lackland, 2 Dill. 6. Fair's Estate, 103 Cal. 342; Cline is Fogarty v. Fogarty, 22 Can. V. Scott (Ky. 1896), 32 S. W. 215; S. C 103; Seawright's Estate, 163 Kuykendall v. Devecmon, 78 Md. Pa. St. 218. 537; In re Beilstein, 147 Pa. St. "Smith v. Jackman, 115 Mich. 85; Arnold v. Arnold, 41 S. Car. 192: Martin's Estate, 178 Pa. St. 291. 416. 13 Robinson v. Greene, 17 R. I is Probate Judge v. Page, 61 N. 771. (The words "in being" were H. 500. held to refer to "child" not "daugh- i9 Cray v. Herder, 46 N. J. Eq. ter," distribution in case of doubt 416. beinff made at the earliest date.) 954 LAW OF WILLS. devised, it was held that the payment of a legacy could not be postponed until the harvesting of the annual crops.^° But, where the v/ill gives to a legatee a vested and absolute interest in the fund, and the pa^mient of such legacy is postponed for the period beyond his majority, no intermediate estate inter- vening, it is held by some very eminent authorities that the di- rection postponing payment is repugnant to the gift of the ab- solute interest, and, accordingly, such legatee has a right, on reaching majority, to demand and receive the legacy.^^ A gift may be made payable personally to the legatees even though they are not of age.^^ Where the will provides that the income of the estate is to be accumulated by the executor until sufficient to pay the debts and legacies, it is held that the legatee has no right to bring suit to collect such legacy until it is evidence that the income will not be sufficient for such purpose in any "reasonable time."^''' While ordinarily a legacy payable to a class, which may include those after born, is not payable until the possi- bility of such subsequent issue is in law extinct by the death of the parent, it has been held that such legacy may be paid where the woman whose issue are the beneficiaries is past the age of childbearing.^^ §803. Rule where the will does not fix the time of payment. Where the will does not specifically fix the time at which the legacies are to be paid, their payment is not delayed by the crea- tion of trusts or other interests by will except in case where, by the very terms of the will, the legacy can not be paid until the trust determines.^^ The law fixes a time for the payment of legacies which is presumably sufficient to enable the personal representative to collect the assets of the estate and to determine what legacies, 20 Cray v. Herder, 46 N. J. Eq. 23 Cronan v. Holland, 19 R. T. 416. 368; .36 Atl. 92: 33 Atl. 872. 21 Rocke V. Rocke, 9 Beav. 66 ; 24 Male v. Williams, 48 N. J. Eq. Dado's Estate, 71 Mo. App. 641; 33. Compare Sec. 677. Randolph v. Randolph, 40 N. J. Eq. 25 Thyng v. Moses, 65 N. H. 56. 73. Brown v. Lippincott, 49 N. J. Eq. 22 /n re Deneken, 13 Reports, 294. 44. LAW OF WILLS. 955 if any, must abate. At common law, and by the statutes of many states, the time for payment of legacies, where the will did not provide specifically, is fixed at one year from the death of testator.2^ Q^t^e statutory rule is so firm in some jurisdic- tions that even a direction that the executors are not to pay the legacies "until such time as it. may be practicable to do so, hav- ing regard to the beneficial management of my said estate," does not postpone the time of paying legacies beyond that fixed by statute.^^ In other jurisdictions the time fixed for the pay- ment of legacies by statute is different from that fixed by the common law rules; the same principles, however, apply. It has been held, however, where the will does not fix a time for i^ayment, tliat the legacy is payable in a reasonable time after testator's death.^^ Two exceptions, however, are generally recognized to the rule making legacies payable a year after the death of testator. The first exception is that, if the testator by will has given annuities, the time for the payment of these an- nuities begins at the death of testator.^^ Where testator spe- cifically bequeathed the income of a certain fund to a named legatee, in the absence of anything in the will to show a con- trary intent, this passes the income of the fund from the death of tiie testator.30 ^^^^ ^^^^^ exception is, that a legacy for tes- tator's infant children, for whom no other provision is made in the will, bears interest from testator's death, though its payment may necessarily be postponed pending the settle- rs Williams' Estate, 112 Cal. 521, 44 ciety, 50 O. S. 1 ; Gray v. Case School, Pac. 808; Kent v. Dunham, 106 Mass. 62 O. S. 1. ,,„ ^ , ^oi 586- Welch V. Adams, 152 Mass. 74; ^^ Williams' Estate, 112 Cal., 521; Ash'ton V. Wilkinson, 53 X. J. Eq. 227 ; 44 Pac. 808. Flummerfelt v Flummcrfelt, 51 X. J. 28 Moore v. Moore (N. H.) (1899) Eq. 432; Eichelberger's Estate, 170 Pa. 45 Atl. 233. St. 242; Huston's Appeal, 9 Watts. 29 In re Williams, 64 L. J. Ch. (Pa.) 472; Sear's Estate, 18 Utah 193. -j^_ g_ 349. Welch v. Brown, 14 Vr. By some Statutes the time for paying ^-^^ j_^^ 37. Eichelberger's Estate, legacies is fixed at a year from tht ^„^ p^^ g^_ 242; Eyre v. Golding, issuing of letters testamentary. In re _ ^.^^" ^^ ^^^_ Curran. v. Green. McGowan, 124 N. Y. 526; Thorn v. ' j, x. 'y 329. Sear's Estate, 18 Garner, 113 N. Y. 198; Davis v. J^ *"• „ (Vandell 101 X. Y. 311; or from the ^^^^' ^'^''- c A^r. n d^ of the notice of the appointment 30 McLane v. Cropper, 5 App. D. of an executor. Webster v. Bible So- C. 276. 956 LAW or WILLS. ment of the estate.^^ Where the will is ambiguous as to which of two funds is charged with the education of children, it will be held to be the fund available immediately, and not one avail- able only after a life estate of twenty years expectancy.^^ Even before the time of the payment of the legacy a legatee may have a sum sufficient to pay such legacy set apart for its payment,^^ and so an annuitant is entitled to have a sum retain- ed upon the general distribution sufficient to pay the annuity.^'' But an annuity charged on a particular fund, the deficiency, if any, to be made up out of the residuum, can not operate to postpone the payment of other legacies, even if testator has dis- posed of his entire estate.^^ §804. Interest upon legacies. A legacy draws interest as between legatees and the estate of the decedent from the time when it becomes payable, in the ab- sence of anything in the will to show that testator entertained a different intent."** But, if testator's intention as to the date from which the legacy is to bear interest can be determined, this is paramount.^^ So a gift to trustees to retain for three years, if they saw fit, and to hold in trust for such persons as testator might appoint by will, carries interest from the death of testator.^ ^ 31 Flummerfelt v. Flummerfelt, ^4 Jn re Bates, 159 Mass. 252. 51 N. J. Eq. 432; Marsh v. Taylor, 35 Morse v. Macrum, 22 Ore. 229. 16 Stew. Eq. 1 ; Stout v. Stout, 17 36 Cline v. Scott, — Ky. — Stew. 479; Davison v. Rake, 17 (1896), 32 S. W. 215; Kent v. Stew. 506. Durham, 106 Mass. 586; Ashton However, where) the legacy Is v. Wilkinson, 53 N. J. Eq. 227; given in pursuance of an ante-nup- Adams v. Adams, 55 N. J. Eq. 42; tial contract by which the widow 35 Atl. 827; Webster v. Bible So- was to receive $4,000 in lieu of ciety, 50 O. S .1; Gray v. Case dower within a reasonable! time School, 62 O. S. 1; Langhrost v. after testator's death, it was held Ahlers, 7 Ohio N. P. 40; Eichel- that such legacy was not payable berger's Estate, 170 Pa. St. 242; and did not bear interest until a Koon's Estate, 113 Pa. St. 621; reasonable time, which by analogy Webster v. Wiggin, 19 R. I. 73: was held to be one year. Krig- 35 Atl. 961. baum V. Southard, 23 W. L. B. 438. 3^ Loring v. Massachusetts Hor- azThurber v. Battey, 105 Mich. ticultural Society, 171 Mass. 401; 71g, Yost's Estate, 134 Pa. St. 426. 33 Leslie V. Moser, 62 111. App. 38 Loring v. Massachusetts Hor- 555^ ticultural Society, 171 Mass. 401. LAW OF WILLS. 957 A legacy payable at any time in executor's discretion before the distribution of testator's estate, given to equalize the bene- ficiaries' share with that of others who had secured advance- ments from testator, which sum was to equal the advancements without interest, does not bear interest.^^ While legacies ordinarily become due and bear interest a year after testator's death, they do not bear interest from that date if they are payable subsequently.^" Accordingly, where testator gave certain conditional legacies, and provided that the legatees should notify the executors of their acceptance within six months after the receipt of notice from the executors, and executors de- layed sending the notice for more than a year after testator's death, and the legatee accepted within six months thereafter, it was held that the legacy bore interest from the year after testa- tor's death, and not from the time of the acceptance of the legacy. ^^ Where the property has been surrendered either to the re- mainder-mien, residuary legatees, and the like, it is held, how- ever, that they can not be charged with interest for legacies payable out of the property which they have received, unless demand is made of them for such payment.^ ^ Where, at the time for paying the legacies, contest proceedings are pending, and on that account the executor withholds payment of lega- cies, it is often questioned whether the legatee can recover in- terest upon the legacies thus withheld. On this point there seems to be a decided difference of judicial opinion. In some jurisdictions it is held that no interest can be recovered upon the legacies until the date at which the contest is decided."*^ In other jurisdictions it is held to be the duty of executors to pay the legacies if proper security is given to him for the repay- ment of the same in case the contest is decided adversely to the will. This question depends largely upon the wording and con- struction of local statutes for the settlement of decedents' es- 39 Brooks V. Hanna, 19 Ohio C. *'^ Adams v. Adams, 55 N. J. Eq. C. 216. 42; 35 Atl. 827; Gilbert v. Tay- "Cline V. Scott (Ky.) (1896), lor, 148 N. Y. 298. 32 S. W. 215. 43 Trustees of Church Home, etc. ■41 Webster v. Wiggin. 19 R. I. v. Morris, Ky. (1896), 36 S. W. 2. 73; 35 Atl. 961. 958 LAW OF WILLS. tates. An executor is not justified in refusing to pay legacies on account of a rumor that some one in existence claimed to be testator's wife.^* §805. Right of devisees to possession of realty. The right of a devisee to the possession of the realty devised rests upon principles which have already been discussed. Under modern statutes, in most jurisdictions, a devisee can not assert any title to realty until the will has been admitted to probate.'*^ After the will has been admitted to probate, the right of the devisee to the possession of the realty is in the first instance dependent upon whether such realty is necessary for the payment of the debts of testator, taken in the order in which the law or the will directs testator's property to be taken for his debts.^^ If the realty devised is not necessary for the pay- ment of testator's debts, the right of the devisee to the posses- sion of such realty depends upon testator's intention as ex- pressed in the will.^"^ 44 Eichelberger's Estate, 170 Pa. 46 See Sec. 777. St. 242. 47 See Chapt. XXXI. 45 See Sec. 313. LAW or WILLS. 9^^ CHAPTER XL. SUITS TO CONSTRUE WILLS. §806. When suits to construe will lie. In their origin, suits to construe wills were equitable in their nature, and were necessary consequence of the general power of equity to manage and control trusts and to direct the con- duct of trusts when such direction was sought. In many juris- dictions this principle is still in force, and a construction of a will can be sought only when necessary in directing the conduct of the trustee or some one acting in a general trust capacity.' And where this principle is in force, equity will not construe a will in which no trust is created, simply because of the un- certainly of the devisees.^ In some jurisdictions, however, equity will entertain suits to construe wills irrespective of the existence of a trust.^ In other jurisdictions the right of bringing a suit to construe a will has been extended by statute. Thus it is provided under iBonnell v. Bonnell, 47 N. J. v. Torrey, 55 N. J. Eq. 410; Edgar Eq 540; Torrey v. Torrey, 55 N. J. v. Edgar, 26 Ore. 65. Eq 410; Bailey V. Briggs, 56 N. Y. 3 Becton v. Alexander, 27 Tex. 407; Chipman v. Montgomery, 63 659; Hawes v. Foote, 64 Tex. 22; N Y 221 ; Dill v. Wisner, 88 N. Y. Groesbeck v. Groesbeck, 78 Tex. ^gg ' " ' 664; Crosson v. Dwyer, 9 Tex. Civ. 2 Minkler v. Simons, 172 111. 323, App. 482. reversing 71 111. App. 462; Torrey 960 LAW OF WILLS. some statutes that a widow, before making her election, may bring suit to have her rights, under the will, determined by a court of equity. Leaving the subject of the court in which the suit must be brought for the following section, it must be observed that under the general equity rules a bill may be filed to construe an ambiguous or doubtful \^all under proper circumstances.^ But where the will is plain and unambiguous upon its face, equity courts will not entertain a suit to construe, and will not charge the costs against the estate, but will dismiss such a bill at the costs of the plaintiff.^ Equity will not entertain a suit to construe a will in order to answer merely abstract questions f nor will equity determine questions not then necessary to direct the conduct of the trustee.'^ Thus an administrator with the will annexed can not ask questions as to his power to sell real estate, and appropri- ate the proceeds to the use of the life tenant, where the life tenant has not asked for the sale ;^ and equity will not in- struct a trustee as to a future event which may or may not take place.^ Thus equity Avill not construe a will, ordinarily, to determine the nature of a remainder during the life of the life tenant.^'' 4 Caroll T. Richardson, 87 Ala. 605; Stevens v. Dewey, 55 N. J. Eq. 232. 5 Baxter v. Baxter, 43 N. J. Eq. 82; Mellen v. Mellen, 139 N. Y. 210; Hollister v. Hcwe, 6 O. Dec, 157; 4 O. N. P. 168. 6 Siddall V. Harrison, 73 Cal. 560. ' May V. May, 5 App. D. C. 552 : Fahy v. Fahy (N. J.), 42 Atl. 726; Tyson v, Tyson, 100 N. C. 360. 8 Security Co. v. Pratt, 65 Conn. 161. 9 Bullard v. Att. Gen., 153 Mass. 249 ; Griggs v. Veghte, 47 N. J. Eq. 179; Traphagen v. Levy, 45 N. .F. Eq. 448. It has been said that even if such decree were rendered, it would not be binding. Meacham v. Graham, 98 Tenn. 190, 10 Stumpenhousen's Estate, 108 la. 555; Wethered v. Safe Deposit & Trust Co. 79 Md. 153; Minor v, Taylor, 129 Mass. 160; Heald v. Heald, 56 Md. 300; Devecmon v. Shaw, 70 Md. 219; Woods v. Ful- ler, 61 Md. 457 ; Powell v. Demming, 22 Hun, 2.35 (N. Y.) ; Hayday v. Hayday (N. J.), .39 Atl. 373; Morse V. Lyman, 64 Vt. 167; Blair v. Johnson 64 Vt. 598; Well's Estate, 69 Vt. 388: Schinz v. Schinz, 90 Wis. 236: 2 Pom. Eq. Jur. {2nd Ed.) 1157. LAW OF WILLS. *'"■*• An additional reason for refusing sucli constmction is that If remainders may pass by purchase to persons not ascer- tained at the time of the bringing of suit, the rights of such persons can not be determined in the suit." As a court of equity will only advise a trustee as to his conduct in the -immediate future, he ordinarily can not main- tain a suit to determine what has been the effect of a distribu- tion made by him.^- But where the immediate conduct of an executor or a trustee will be determined by the construction of the will, the court Avill entertain an action to construe. Thus where a will directs that the husband of testator shall not be required to pay more of his debts to her estate than such annual payments as \\all stop the statute of limitations from running, the legatees may receive instructions from a court of equity as to their conduct with reference to such debts.^^ So where executor has assets in his hands which he is ready to distribute,^-' or where on construction of the will, is ])0und to sell land at once to pay a legacy ,i^ he may file a bill to ob- tain instruction. Where the present conduct of the executor or trustee is af- fected by the nature of the remainder after the life interest, he may have the nature of such remainder construed.^ ^^ Where questions concerning which construction is sought do not impose any duty upon the executor or trustee, and per- tain exclusively to the question of legal title passed by the will as between a devisee and an heir, or as between two or more iiTrapha!?en v. Levy, 45 N. J. a right to a bequest absolutely, Eq. 448; Montignani v. Blade, 145 while other legatees claimed they N. Y. Ill; Ward v. Ward, 95 Ala. had a contingent remainder in such 331-10 So. 832. legacy. The latter claimants con- 12 Miles V. Strong, 00 Conn. 393; tended that the executor was per- Littl'e V. Thorne, 93 N. C. 09. sonally responsible for the pay- is Miller V. Drane, 100 Wis. 1. ments which he had made already i4Balsley v. Balsley, 116 N. G. to the first taker of the legacy, ,.,(, " and that he should make no fur- is Van Gioson V. White, 53 N. J. ther payments without taking bond -p, ' for the repayment of the fund '^leMeacham v. Hraham, 98 Tenn. upon the happening of the eontin- 190; 39 S. W. 12. f'^c'icy. In this case one legatee claimed 962 LAW OF WILLS. antagonistic devisees, equity will not generally entertain a suit to construe a will, but will leave the adversary parties to their remedies at law.^^ In such case the court will not as- sume jurisdiction, because the suit was brought by an ex- ecutor, where he has not been charged with any duties in refer- ence to such estate.^ ^ However, where the facts are such that no adequate remedy can be had at law, as where the devisee is in possession under a devise which clearly gives him a life estate, and the dis- pute is as to the remainder, equity in the exercise of its juris- diction of entertaining suits to quiet title may, as incidental to such relief, construe the will under which devisee claims/^ Whether equity can pass upon the force and effect of instru- ments executed after the will either by testator or by benefi- ciaries in an action to construe a will, is a question upon which the authorities are at variance.-*^ 17 Minkler v. Simons, 172 111 323, reversing 71 111. App. 462 Peverly v. Peverly, 173 Mass. 203 Austin V. Bailey, 1G3 Mass. 270 Torrey v. Torrey, 55 N. J. Eq 410; Kennedy v. Merrick, 46 Nob 260; Kelley v. Kelley, 80 Wis. 486 In Austin v. Bailey, 163 Mass 270, which was an action by one who claimed a devise to determine his title to certain real estate as against the heirs, the court ex- pressed it reasons for dismissing the petition without a decision on its merits in the folloAving language: "It is plain that this is not a case in which the petitioner has any duty to perform under the will in which he needs the instructions of the court as to anv duties arising in the administration of the estate of Jane Manning. So far as appears the dispute does not, in any way. concern the administration of the estate. See Healy v. Reed, 153 Mass. 197. The whole question in the case relates to the extent of the title of the parties to the real estate of which respondent is in pos- session. Both parties receive their titles from Jane Manning, but this does not entitle either to ask this court by petition for instruction upon the proper construction of the will. . . . The true remedy of the petitioner is by right of entry in the trial of which it would be necessary to determine the meaning of this article of the will." In this case, however, Avhile the court re- fused to render any decision as to the construction since the question was fully argued, and all the par- ties in interest were before the court, it expressed its opinion in such terms as to obviate the ne- cessity of future litigation. 18 Miles v. Strong, 60 Conn. 393 ; Torrey v. Torrey, 55 N. J. Eq. 410. 19 Ewing v. Barnes. 156 111. 61 ; Pennington v. Pennington, 70 Md. 418: 3 L. R. A. 816. 20 In Lenz v. Prescott. 144 Mass. 505, equity took jurisdiction upon the ground that one of the questions involved was an assignment by leg- LAW OF WILLS. 963 §807. Jurisdiction of courts in actions to construe a will. State courts of general equity powers are the tribunals before which the construction of the domestic will should be brought. ^^ Courts of probate powers have, ordinarily, jurisdiction to construe wills only so far as is- necesary in exercising their jurisdiction over decedent's estate, such as hearing exceptions to accounts and the like.^^ By statute in some jurisdictions, courts of probate powers are given especial authority to direct the payment of legacies. Where such powers exist, probate courts may construe wills in so far as is necessary to direct the payments of legacies.^'' The power of a probate court to construe a will in settling the estate does not, however, exclude courts of equity from en- tertaining suits to construe wills in proper cases.^'* And, on the other hand, a proceeding in a court of equity to obtain a construction of a will and enforce a trust does not deprive a court of probate powers of its jurisdiction in settling the estate. ^^ Where foreign wills provide for separate dispositions of prop- erty situated in an American state, the court of that state may, upon the application of the executor of the will for this country, determine whether a given legacy had lapsed ; but as atees of tlifir interest whicli the 22 Burton's Estate, 93 Cnl. 459 : probate court had no jurisdiction to Mclntire v. Mclntire, 14 App. D. C. determine. In Jaclcson v. Thonip- 337; Dunham v. Marsh, 52 N. .1. son, 84 Me. 44, it was held that Eq. 250, affirmed 52 N. J. Eq. 831 ; equity could not determine the va- Stevens v. Dewey, 55 N. J. Eq. lidity of such an assignment. In 232; Rosborough v. Mills, 35 S. C. Montignani v. Blade, 145 N. Y. Ill, 578. it was held that equity could not, 23 Burton's Estate, 93 Cal. 459 : in a suit to construe a will, deter- Rosborough v. Mills, 35 S. C. 578 : mine the validity of an assignment Hudgins v. Leggett, 84 Tex. 207 made by a beneficiary under the 24 Stevens v. Dewey, 55 N". J. will, the assignee not being a party Eq. 232 ; Davis v. Hutchings, 15 to the suit. 0. C. C. 174: 8 O. C. Dec. 52, re- 2iLongwith v. Riggs, 123 111. versing G O. Dec. 371, 4 O. N. P. 258; Minklcr v. Simons, 172 111. 276. Burnham v. Norton, 100 Wis. 8. 323 ; Richardson v. Richardson, 80 25 Minkler v. Simons, 172 111. Me. 585; Ladd v. Chase, 155 Mass. 323, reversing 71 111. App. 462; 417. 964 LAW OF WILLS. there was a residuary bequest to the foreign executors, the American court could not determine who wouhl benefit by such lapse.^*^ If the parties adverse in interest are citizens of different states, the United States Courts have jurisdiction to construe and interpret a wiU.-'^ But where the parties really adverse in interest reside in the same state, the fact that upon the record a resident of a different state who had no real interest in the controversy appears as the party adversary to both of the real parties, does not give the United States Courts jurisdiction of the case.^^ §808. Parties to suits to construe wills. The proper plaintiff in a suit to construe a will is usually the executor,-^ or an administrator with the \vill annexed,^*^ or a testamentary trustee^ ^ upon whom some duty is cast by the will concerning which he needs the instruction and direc- tion of the court for his immediate action. It is generally held that beneficiaries under the will, whose immiediate interests may be affected, may bring suit for con- struction. ^- In some jurisdictions the beneficiaries under a will can not bring a suit to construe if their rights can be adjudicated in an action at law.'^^ An administrator of the deceased's next of kin^^ or the guardian of an insane beneficiary cestui que trust may sue for construction. 2s Hockwell V. Bradshaw, 67 Stevens v. Dewey, 55 N. J. Eq. Conn. 8. 232. 2 7 Wood V. Paine, 66 Fed. 807: 3i Readman v. Ferguson, 13 App. Security Co. v. Pratt, 65 Conn. D. C. 60. 161. 32 Crerar v. Williams, 145 111. 28Patton V. Cilley, 62 Fed. 408. 625; Wintermute v. Heinly, 81 lo. 29Belfield v. Booth, 63 Conn. 169; Read v. Williams, 125 N. Y. 299: In re Batchelder, 147 Mass. 560. Where their immediate inter- 465 ; Lodd v. Chase, 155 Mass. ests are not affected, they can not 417; Kilburn v. Dodd (K J. Eq.) sue. Well's Estate. 69 Vt. 388. 30 Atl. 868 ; Davis v. Hutehinirs. 33 Torrev v. Torrey, 55 N. J. Eq. 15 Ohio C. C. 174, reversing 4 Ohio 410; Minkler v. Simons, 172 111. N. P. 276. 323, reversing 71 111. App. 462. soStofF v. McGinn, 178 111. 46; 34 Healy v. Reed, 153 Mass. 197. LAW OF WILLS. 965 There is, however, a conflict as to whether the assignee of a beneficiary under a will may Sue to obtain instruction.^^ Even where the facts are not such as to wan-ant the execu- tor or administrator or trustee in obtaining the direction of the court, an action may be brought by a devisee or heir for that purpose, if necessary to determine his immediate rights.^^ Thus the . cestui que trust can not maintain an action to con- strue a will in order to determine who will take a continffent remainder at his death.^' In such case, of course, the creditor of the life tenant can not bring suit to determine what rights, if any, lie would have to the balance after the life estate was exhausted, where under the will the life estate may be sold on execution. "^^ But those who have no interest in the outcome of either con- struction claimed, can not be heard to raise the question of the correct construction of the will. Thus heirs can not attack the validity of certain devises where the will as a whole is admitted to be valid and it contains a residuary clause, since the heirs can not be benefited by defeating the devise.^^ Whether tlie proper party brings the suit or not, if the parties affected by the construction are properly made parties to the suit, and if the executors by their answer submit the question of construction to the court, the court has jurisdiction to con- strue the will,'*^ and when the wrong party sues, it has been 35 In Lyon v. Clawson, 56 N. J. Eq. 042, affirmed 58 (N. J. Eq.).,584, 43 Atl. 1898, it wns held that an assignee of an interest in a legacy in remainder might, upon the deter- mination of the precedent estate, sue to obtain a construction of the will and compel the executor to pay over the trust fund to the as- signee of such remainder man. In Mellon V. Mellen, 139 N. Y. 210, it was held that the grantee of a devisee could not maintain such an action. 36 Kennedy v. Merrick, 46 Neb. 2G0. 37 Horton v. Cantwell, 108 N. Y. 255. 38 Coleman v. Sumrall ( Ky. ) (1890), 15 S. W. 667; 12 Ky.L. Rep. 770. 39Crerar v. Williams, 145 111. 625; 34 N. E. 467, affirming 44 111. App. 497-; Widdowson's Estate, 189 Pa. St. 338. 40 Dean v. Mumford, 102 Mich. 510. 906 LAW OF WILLS. held to be only error, provided all the parties affected are made parties to the suit; and, hence, a decree construing the will is a bar if error procedings are not brought.-*^ All the parties whose interest will be affected by the de- cree of the construction should be parties to the record f- and if the parties whose interests may be affected can not be made parties to the record, as where they are not in being, the court should not entertain a suit for construction.^^ Where, however, the executors who were plaintiffs in the suit to construe the will did not make themselves defendants in their individual capacities, it was held not such irregularity as would prevent the Supreme Court from deciding law ques- tions reserved to it by the superior courf*"* §809. Suit for construction not contest or reformation. Since a suit for construction is not a contest and assumes the validity of the will, neither the heir nor next of kin can main- tain any action to declare certain provisions of the will void where the property given by such provisions will pass under the will to the residuary devisees or legatees and not the heir or next of kin.*^ It has been held, however, that on filing a cross-petition al- leging the necessary facts and on complying with the formali- ties necessary to contest, a suit to construe may be made the means of contesting the validity of the will before passing on the construction.'*^ It is very generally conceded that in a suit to construe a will equity can not reform the same, as it would a deed or a contract.'*'^ 4iStoff V. McGinn, 178 111. 46. 625; Mason v. Roll, 130 Ind. 260; 42 Ward V. Ward, 95 Ala. 331; Barkley v. Donnelly, 112 Mo. 561; 10 So. 832; Ex parte Whalen, — 19 S. W. 305: Anderson v. Apple- Ky. — 1897; 39 S. W. 35; Montig- ton. 112 N. Y. 104; 2 L. R. A. nani v. Blade, 145 N. Y. 111. 175; Onderdonk v. Onderdonk, 127 43 Traphagen V. Levy, 45 N. J. Eq. N. Y. 196; Sawtelle v. Ripley, 85 448. Wis. 72. 44 Cunningham v. Cunningham, 72 46 Mason v. Roll. 130 Ind. 200. Conn. 253. 47 Eckford v. Eckford. 91 lo. 54; 45 Crerar v. Williams, 145 111. Bingel v. Volz, 142 111. 214 ; 16 L. R. Qfi7 LAW OF WILLS. '^"' §810. Pleadings. Written pleadings are necessary in a suit to contest a will."'^ Where a distinction in equity proceedings is made between informal applications by petition and form^al application by bill, a suit to construe a will must be by bill.'^^ §811. Notice. Xotice of a suit to construe a will is usually provided for by statute, in the same manner as notice of any other suit. As the usual rules of the issuing and service of process apply here, this subject will not be entered upon further. §812. Decree. A decree construing the will and determining the rights of the parties to such proceeding, if rendered by a court of com- petent jurisdiction, is binding upon all parties to the suit to construe until attacked directly by appeal or error.^*^ Thus a decree that A had a life estate only, binds A where he was a party to the construction suit, although the remainder-men were not made parties.^^ Such decree can not be attacked col- laterally on the ground that the will did not require construc- tion,^2 oj. that the construction suit was not brought by the proper partv plaintiif.^^ While a decree of construction is binding on the parties there- to, it is not binding upon the descendants of a party, who A. 322; Sturgis v. Work, 122 Ind. ao Fayerweather v Ritch. 91 Fed. 134; Schlottman v. Hoffman, 73 Rep. 721 ; Stoif v. McG.nn, 1 . 8 II • ^^„ 4G; Coghlan v. Dana, 1/3 Mas:,. Miss. ^^ ■ , .o-i . Hershety v. Meeker County "The rule is fundamental that ^^^ . nei&ucj' ^ 4.- r.t T?«Tik 71 Minn. 255; Stevens v. Hiere can be no reformation of iJank, il miiin. ^o^ , cnere can uc . ^ . •„ -Hpwpv ^5 N J Eq. 232 ; Hawthorn (a will) on the ground of mis- 'l^'^'^^^; ^^ f- ^^ ^^J ^J,. .7 c E take, accident or surprise as in v. Beckwith, 89 Va. 786, 1/ S. E. the case of conveyances of real es- 241. tate or in other contracts." Eck- ^i Hawthorn v. Beckwith. 89 \ a. ford v. Eckford, 91 To. 54. 786 ; 17 S. E 241. „ „ c n„^ f;a V T 52 Stoff v. McGinn, 1/8 ill. 40. 48Sinalley v. Smalley, 54 N. J. ^, ^^^^ ,^ ^,^^._ ^^^ ni. 46. Eq. 591. 49 Smalley v. Smalley, 54 N. J. F>q. 591. 53 Stoff v. McGinn, 178 HI. 46. 968 "LAW OF WILLS. claim not by descent from such party but by purchase under the will."'* But it is binding upon those claiming under such a party by descent.^^ Where no application is made to the probate court for for- mal construction, a decree of distribution does not operate as a final adjudication of the ultimate rights of beneficiaries under the will.^^ But where the probate court has full power to construe the will so as to determine the ultimate proj)erty rights of the beneficiaries, a decree to that effect rendered by such court^''^ or the prior pendency of a suit to construe the will in such probate court^^ is a bar to a suljscquent suit to con- strue. Where, however, the court of probate powers refers the peti- tion for construction to a commissioner to take testimony and report as to the debts of decedent, the transactions of the ex- ecutor and the like, such decree is interlocutory merely, and not final.^^ §813. Costs and attorney fees. In suits to construe wills the courts are not in harmony as to their powers and duties in matters of costs and attorney's fees. In some jurisdictions it is held that in a suit for construc- tion, the defeated claimant who has resisted a certain construc- tion can not have his costs or attorney's fees out of the estate.^*^ In other jurisdictions, the apportionment of costs and at- torney's fees is within the sound discretion of the court, and it is held that if the ambiguity of the will caused the difficulty SI Malona v. Schwin?, 101 Ky. 56. may be a complete! determination 55 Lawe V. Holder, 106 Gm. 879. of the rights of the parties.) 56 Hershey v. Meeker County ss Garlock v. Vandevort. 128 N. Bank, 71 Minn. 2.5.5; Stevens v. Y. 374; In re VerpLanck, 91 N. Y. Dewey, ,55 N. J. Eq. 2.32. 439: Riggs v. Cragg, 89 N. Y. 479. sTGoldtree v. Thompson (Cal.), so Sims v. Sims, 94 Va. .580. 20 Pac. 414. (At least where such so Kimball v. New Hampshire decree is not set out in full and Bible Society, 65 N. H. 139. LAW OF WILLS. 969 in construction, tlie defeated party, as well as the successful party, is entitled to his costs out of the estate,®^ Where the apportionment of costs is within the discretion of the court, such costs can not be taxed by the clerk as in or- dinary cases.*^^ The allowance of attorney fees to the defeated party is ques- tioned somewhat more than the allowance of costs, but is generally recognized as proper if costs are allowed.^^ Allow- ance of costs and attorney fees to the defeated party can be justified as follows: The difficulty in construction was created by the testator, not by the defeated party. Hence the costs of ob- taining a judicial construction of such a will should be borne by testator's estate.^'* In accordance with this reasoning, attorney fees are not al- lowed to one who is really suing, under cover of construc- tion, to have the will declared void.®^ §814. Estoppel. Where the beneficiaries under a will have themselves placed a practical construction upon such will, and have released their interests as thus construed, for a valuable consideration, they are bound by such construction.^^ But the interests of others not parties to such instrument, can not be affected by estoppel.^'^ The doctrine of estoppel also applies to cases where devisee has an election between taking under the will, and standing on his legal rights outside the will.*'^ Thus a widow to whom 61 Charter v. Charter, L. R. 7 H. tween solicitor and client, should L. 364 ; Ingraham v. Ingraham, come out of the general estate." 169 111.432; Moore v. Alden, 80 Me. Charter v. Charter, L. R. 7 H. L. 301 ; Morse v. Stearns, 131 Mass. 364. 38(). 65 Thornton v. Zea (Tex. Civ. 62Horton v. Upham, 72 Conn. App.) (1899), 55 S. W. 798. 29. 66 Thornington v. Hall, 111 Ala. 63Donges's Estate, 103 Wis. 497. 323; Pate v. French, 122 Ind. 10. 64 "The difficulty having beon e^ Pate v. French, 122 Ind. 10. created by act of the testatrix, the es See Sec. 726, Election. Hodg- costs of all parties, taxed as be- man's Estate, 140 N. Y. 421. 970 LAW OF WILLS. property has been given by will in full satisfaction of her dower and distribnti^•e share, can not after taking the prop- erty thus bequeathed take lapsed legacies.^^ A devisee or legatee who is not put to an election, is not estopped to claim that certain recitals of fact in the will are erroneous,''^ '^ or that certain items of the will are of no effect in lawJ^ Thus a beneficiary under a will is not estopped by a o-eneral residuary clause containing no specific description of the property involved, to claim that a deed given by him to testator was understood to be a mortgage in equity, and that the debt secured thereby had been dischargedJ^ A devisee who claimed under a will which forbade the de- visees to contest it or to attempt to set aside any of its pro- visions, is not estopped from a suit to construe the vriW and to enforce it as construedJ^ §815. Error. A decree of a court construing a will upon suit brought for that purjwse may be reversed, if erroneous, by a petition in er- ror brought as in other cases."^^ 69Hodgman's Estate, 140 N. Y. 72 Tompkins v. Meniman, 155 Pa. 421. St. 440. TO Hatch V. Ferguson, 68 Fed. 73 Black v. Herring, 79 Md. 14G; 43. Nor is the recipient of a gift 28 Atl. 1063. causa mortis estopped to claim t* Davis v. Coflfman, 55 0. S. under the will. May v. Jones, 87 556. lo. 188: 54 N. W. 231. 71 Schmidt's Estate, — Mont. — ; 38 Pac. 547. LAW OF WILLS. ^'^ CHAPTER XLl. EVIDENCE IN AID OF CONSTRUCTION. §816. General principles controlling admissibility of evidence in construction. As will be seen from an inspection of the cases cited under the heading of Construction, the question of the admissibility of evidence in the construction is not, by any means, limited to suits to construe a will. Almost any litigation which in- volves the title to property, such as, for example, partition suits or suits in ejectment, may involve the question of the con- struction of a will under which title to such property is claimed. Questions of admissil)ility of extrinsic evidence to aid in con- struction may, therefore, arise in any kind of a suit in which a will is relied upon as a means of tracing title, in addition to suits brought for the sole purpose of construing a will. The rules controlling the admissibility of evidence in the construction of wills and testaments have developed in par- allel lines with the developement of the rules controlling the formality of the execution of such instruments. The rules con- trolling the admissibility of evidence to determine the meaning of devises of real estate have remained substantially the same, from the first introduction of wills into our system of law; for a will passing real estate has always been required to be in writing. As society has developed, new questions and new com- binations have, from time to time, arisen, and the form in 972 LA.W OF WILLS. which the general niles of evidence have been stated has va- ried accordingly. Testaments passing personalty, on the other hand, might at first be nuncupative, and consequently there was little or no restriction on the admissibility of any sort of evi- dence which would serve to show testator's intention. At modem law, a testatment must be in writing and executed with the same formalities in most states as are requisite in the case of a will passing realty. Accordingly, the rules controlling the admissibility of extrinsic evidence to determine testator's inten- tion, in reference to personalty, have gradually been restricted until at present the rules of evidence are substantially the same in cases of wills and testaments. Since both wills and tes- taments are required to be in writing, no part of either can be created by mere oral statement ; as we have seen already,^ "the intention of the testator is always to be deduced from the words actually written in the will." ^ In determining testator's in- tention "the true inquiry is not what a testator meant to ex- press, but what the words used do express." =^ Accordingly, the fundamental principle controlling the admissibility of ex- trinsic evidence is, that extrinsic evidence can not be received as evidence of testator's intention outside of, and independent of, the wi-itten words employed by testator.^ The only purpose and justification of the admission of ex- trinsic evidence is to explain testator's meaning which is set forth in the words of the will. Assuming that it is testator's will which is to be construed, it is the place of the court to find the meaning of such will, if there is one, and not under guise of construction or under general powers of equity to assume to correct or redraft the will in which testator has expressed his intentions.^ 1 See Sec. 460. v. Huston. 37 To. 668 : Elliott v. 2 Sturgis V. Work, 122 Ind. 134. Tapp, 63 Miss. 139; Burke v. Lee, sBurk'e v. Lee, 76 Va. 386. 76 Va. .386; Couch v. Eastham, 29 4 Starkweather v. Society. 72 111. W. Va. 784. 50; Decker v. Decker, 121 111. 341; s Bingel v. Volz, 142 111. 214: 31 Bingel v. Volz, 142 111. 214; 31 N. E. 13; 16 L. R. A. 321: Whit- N. E. 13; 16 L. R. A. .321; Sturgis comb v. Rodman, 156 111. 116; V. Work, 122 Ind. 134; Huston Sturgis v. Work, 122 Ind. 134; LAW OF WILLS. 973 §817. Evidence admissible to show surrounding circumstances. At tlie outset it may be observed, as a matter of fact rather than of law, that there is but little need of, or little question concerning, extrinsic evidence if the will is i)hiiii uj)()n its face, and if the persons and things therein mentioned are shown to exist exactly as they are described in the will, and there is no question as to their identity. Such questions as are raised upon a will of this sort are generally attempts to contradict the instrument and are discussed hereafter.'^ The question of the admissibility of parol evidcnice, there- fore, is generally raised where the will, either upon its face, or by reason of imiierfoct description of the subject matter of the gift or the object of testator's bounty, is ambiguous or uncertain. In any case, wherever it is necessary to in^'oke ex- trinsic evidence to assist in the construction of a will, it is recognized by the great weight of authority that evidence of the facts and circumstances, existing at the time of the ex- ecution of the will, and kno^vn to testator, with reference to which he drew the instrument of which the meaning is in question, is necessary, not to contradict the meaning of the will, but to "enable the court to place itself in his situation, to see things as he saw them, and to apply his language as he under- stood and intended it." "^ While in some of these cases considerable stress is put on the fact that evidence is admissible because of the ambiguity of the will,^ this is only because that in such cases extrin- sic evidence is necessary ; and it seems to l>e laid doAvni that in any case, whether the will is ambiguous or not, the court Funk V. Davis, 103 Ind. 281; Fitz- L. R. A. 149; Ernst v. Foster, 58 Patrick v. Fitzpatrick, 36 lo. 674; Kan. 438; Nichols v. Boswell, lO.S Eckford v. Eckford, 91 lo. 54: 26 Mo. 151; Barnard v. Barlow, 50 N. L. R. A. 370; Sherwood v. Sher- J. Eq. 131; Morris v. Sickly. 133 wood, 45 Wis. 357 ; 30 Am. Rep. N. Y. 456 ; .Jasper v. Jasper, 17 Ore. 757. 590; Bank v. Gregg, 46 S. C. 169. 6 See See. 820. « Whitcomb v. Rodman, 156 111. TPr^den v. Pruden, 14 O. St. 116 ; 28 L. R. A. 249 ; Ernst v. Fos- 251. To the same effect are, Lee ter, 58 Kan. 438; Bank v. Gregg. V. Simpson. 134 U. S. 572; Whit- 46 S. C. 169. comb V. Rodman, 156 111. 116; 28 974 LAW OF WILLS. is entitled to hear such extrinsic evidence of the surround- ing circumstances as will j)ut it in the place of testator.^ Among the surrounding facts most frequently admitted in evidence, we naturally find that the most usual is evidence of the condition of testator's property, and the relationshij) be- tween him and the natural object of his bounty.^ "^ §818. Evidence necessary where there is no ambiguity. While but few cases arise upon the admissibility of evidence where the will is free from ambiguity, extrinsic evidence is, nevertheless, not only admissible, but necessary for the pur- pose of identifying the beneficiaries and the property disposed of by will.^^ This arises from the evident fact that no amount of detailed description in a will can show whether there are any extrinsic objects or persons which correspcaid to such descrip- tion. This fact underlies the rules concerning the admission of evidence to explain any written instrument, and is made neces- sary from the very nature of the case. Thus where testator, by will, described certain land as deeded to him by A by deed re- corded in a place named in the will, extrinsic evidence was ad- missible to show that a search of the records at such place dis- closed only one deed from A to testator, in order to show what property was devised.^ ^ 9 Hawhe v. Chicago, etc., Eail- atees, the affection existing between road Co. 165 111. 561. (On this them, the motives which might rea- point this case is a good authority, sonably be supposed to operate with although the latitude allowed by him and to influence him in the the court in the evidence admit- disposition of his property, are all ted is greater that the weight of entitled to the consideration in ex- authority will justify.) pounding doubtful words and ascer- 10 Smith V. Bell, 6 Pet. 68 ; taining the meaning in which testa- Ernst V. Foster, 58 Kan. 438; tor used them." Smith v. Bell, Nichols V. Boswell, 103 Mo. 151. Pet. 68. "In the construction of ambigu- n Daugherty v. Eodgers, 119 Ind. ous expressions, the situation of 254; Ikard v. Thompson. 81 Tex. the parties may very properly be 285. taken into view. The ties which 12 Ikard v. Thompson, 81 Tex. 285. connect the testator with his leg- LAW OF WILLS. 075 §819. Admissibility of evidence where description is ambiguous. The question of the admissibility of extrinsic evidence is very frequently invoked where the description of either the property is to be disj^osed of by will, or the beneficiary to whom the property is to be disposed of, is ambiguous. An ambiguous description in this connection is said to be one which is true in part and false in part, the correct part of which, when the false is rejected, applies equally well to two or more things or per- sons. This definition is possibly too narrow, since an ambiguous de- scription may not be false in any part, but may simply be so insufiicient as to fail to distinguish between two or more things or persons. Where the description in the v-^ill of the property disposed of does not apply completely to any property which testator owned, but does apply in part to property owned by testator, extrinsic evidence is admissible to show the surrounding facts and circumstances in order to aid the court in detemiining what property testitor m.eant to dispose of.^^ We have already seen that where testator devises realty by its popular name, considerable latitude is allowed in the con- struction, in detemiining what realty was conveyed by such devise. -^^ In such cases extrinsic evidence is admissible to show what tract of land was known by such name.-^^ Thus where testator devised his "upland," it appearing that he had no up- land in the strict sense of the word, evidence was admissible to show that he o^med bottom land and what is known as bench land intermediate between bottom land and upland, 13 Masters v. Masters, 1 P. Wms. St. Rep. 276; Winkley v. Kainie, 425; Beaumont v. Fell, 2 P. Wms. 32 N. H. 268. 141; Lee v. Paine, 4 Hare, 2.')3: i4 See Sec. 488 ; also Sec. 487. Charter v. Charter, L. R. 2 P. & D. is Vandiver v. Vandiver, 115 Ala. 315; L. R. 7 H. L. 364; Gilmer v. 328; 22 So. 1.54; Flannery v. High- Stone, 120 U. S. 586; Priest v. tower, 97 Ga. 592; Thomson v. Lackey, 140 Ind. 399; Black v. Thomson, 115 Mo. 56; McKeough's Richards, 95 Ind. 184 ; Pocock v. Estate v. MoKeough, 69 Vt. 34, 41 ; Redinger, 108 Ind. 573; Chappell v. 37 Atl. 275. Society, 3 Ind. App. 356; 50 Am. 976 LAW or WILLS. and that he referred to this bench hind as upland.^ *^ So where testator devised his "home place" or "the tract of land on which I now live," it was held that extrinsic evidence was ad- missible to show what laud testator regarded as included within the boundaries of such description.^''' So where testator de- vised "my two farms," extrinsic evidence is admissible to show in what sense testator used those words, and whether a sixty- acre tract was regarded by him as a part of "the home farm."^^ In such cases, however, extrinsic evidence of what persons residing in the neighborhood meant by the expression "home farm" or other poi3ular name given to that tract of land is inadmissible.^* So in determining the meaning of the will, extrin- sic evidence is admissible to show the extent of testator's property, and that the property disposed of by him by will was the whole of his real estate.^*^ So where testator devises the balance of his estate, extrinsic evidence is not only admissible, but necessary, to show what was included in the term "bal- ance."^^ So where testator devised a "lot," extrinsic evidence is admissible to identify such "lot."-" So where testator de- vised the house where he lived "being part of lots num- bered 15 & 16" to his wife for life, and further devised on his wife's death the "same lot" to his daughter, and described the lot as "numbered 15," it was held that extrinsic evidence was admissible to show that the property where he resided included parts of lots 15 and 16."^ Where testator describes the property devised by township, range, section and quarter section, but does not locate it in the correct section or range or the like, the Aveight of authority is that extrinsic evidence is admissible to show exactly what real estate testator owned. Under this view if he owns any real estate isVandlvev v. Vandiver, 115 Ala. is Taylor v. Boggs, 20 0. S. 510. 328; 22 So. 154. 20 Lomax v. Shinn, 162 III. 124. 17 Thomson v. Thomson, 115 21 Lomax v. Shinn, 162 111. 124, Mo. 56: Boggs v. Taylor, 26 0. S. 214; Frick v. Frick, 82 Md. 218, 604 : McKeousrh's Estate, v. Mc- 22 Warner v. Miltenberger, 21 Md. Keough, 69 Vt. 34, 41; 37 Atl. 264. 275. 23 Groves v. Culph, 132 Ind. 186. 18 Black V. Hill, 32 O. S. 313. LAW OF WILLS. 977 wliicli corresponds in part to the description in the will, the court will reject the incorrect part of the description and will pass the realty conveyed hy the correct description. This sub- ject has already been discussed in detail.^^ Even greater latitude in the admission of extrinsic evidence is allowed in gifts of personal property, not from any difference at modern law as to the formality of the will passing the two kinds of property, but from the nature of the property itself, and the difficult}' of exact description of personalty. Thus where testator, by will, bequeathed ''my life insurance policy amount- ing to $1000," it was held that extrinsic evidence was admissible to identify such property.^^ The courts have gone even further than allowing extrinsic evidence of the surrounding facts and circumstances in deter- mining testator's intention in cases of ambiguity. Thus tes- tator provided for a bequest to A of an amount of money which was wintten in the will by the figure 5, preceded by the dol- lar sign and followed by two ciphers a little distance from the figure 5, and some distance above the line. There was no dec- imal mark after the figure 5, and no line drawn under the ciphers; it was, therefore, impossible to tell whether he in- tended the bequest to be $5 or $500 ; it was held that extrinsic evidence was admissible to show which of these two sums testa- tor meant to give, thus permitting direct evidence of his inten- tion.26 Where the description of the beneficiary is ambiguous, the court allows considerable latitude in the admission of extrin- sic evidence to identify such beneficiary.^^ Thus where testator devised property to the "sisters of my late friend A," and A, at the time of the execution of the will, was alive, it was held that evidence was admissible to show that in former wills be- quests, evidently to the same persons, were made, describing 24 gee Sec. 487. ^^ ^^ Waller, 68 L. J. Ch. 25Hartwig v. Schiefer, 147 Ind. (X. S.) 107; Wilson v. Stephens, 64, affirming 42 N. E. 471. 59 Kan. 771. 26 Schlottmau v. Hoffman, 73 Miss. 188. 978 LAW OF WILLS. them as the sisters of A's father.^*^ So a beijuest was made to certain daughters ''of my okl friend A B." A B was unmar- ried, was a Catholic priest and never had any illegitimate children. It was held admissible to show that another friend of testator's had the same family name as A B but a different Christian name, and had daughters.^^ In another will testator devised property to his "nephew A" ; testator had two nephews of that name, one a legitimate child and the other illegitimate. In the same will A had referred to two other illegitimate relatives as his nephew and neice. It was held that extrinsic evidence was admissible to show which of the two nephews of the same name was intended."'" The commonest form of misnomer or misdescription of a beneficiary is found where testator attempts to make a devise or bequest in favor of a corporation, generally a church or char- itable institution. In such cases, where either the name or the description given in the will corresponds in part to the name or description of any existing corporation, extrinsic evidence of the relation of testator to such corporation is admissible as tending to show his intention to devise or bequeath property to such corporation.^^ Thus where no corporation existed of the name given in the will, but there were two corporations of sim- ilar names, evidence was admissible to show testator's knowl- 28 /n re Waller, 68 L. J. Ch. /« re Fish (C. A.) (18n4),2Ch. (N. S. ) 107, affirmed in part and 83. In this case, as distinguished reversed in part, 68 L. J. Ch. (N. from the preceding, testator had S.) 526. not, in his will, recognized any of 29 In re Waller, 68 L. J. Ch. his illegitimate relatives as his own (N. S.) 526. relatives in specific terms.) 30 /n re Ashton (1892), P. 83. si Bristol v. Ontario Orphan Asy- (In another English case, however, lum, 60 Conn. 472; Faulkner v. testator devised property to his The National Sailors' Home, 155 "niece A." He had no niece, but his Mass. 458; Tilley v. Ellis, 119 N. wife had a legitimate grand-niece C. 233 ; Keith v. Scales, 124 N. C. and an illegitimate grand-niece 497; Smith v. Kimball, 62 N. H. each named A; it was held that 606 ; Trustees v. Guthrie, 86 Va. 125 ; the legal presumption in favor of the 6 L. R. A. 321 ; Fifield v. Van Wyck, legitimate grand-niece could not be 94 Va. 557 ; 27 S. E. 446 ; Ross v. contradicted by extrinsic evidence Kiger, 42 W. Va. 402. to show that testator intended to devise to the illegitimate grand- niece. LAW OF WILLS. 979 edge of, and interest in, one of such corporations, which was being organized at the time he made his will, although it was not incorporated.^^ Where a gift was made to the "N"ew Jerusalem Church (Swe- denborgian)" and the evidence disclosed that there was a gen- eral corporation known as "The General Convention of the New Jerusalem Church in the United States of America," and a like voluntary association known as the "iSTew Jerusalem Church," it was held admissible to show that testator knew of the voluntary association and had contributed to it, but did not know of the existence of the corporation.^-"' So where testator devised to the "Methodist Episcopal. Church" and the evidence disclosed that there were two branches under similar names, neither of them bearing the exact name given in the will, it was held admissible as aiding in discovering testator's intention to show that one of these branches had an organization and church building in testator's neighborhood and the other did not.^^ So where testator made a bequest to the "Methodist Episcopal Church School situated in A," and the evidence disclosed that there was no school in that place of that name, it was held admissible to show by extrinsic evidence that there was a school at that place of a different name, but controlled by that church, and that the testator intended such school should be the beneficiary.^^ It may be laid down as a general proposition, supported by the substantially unanimous opinion of the courts, that where the name of the beneficiary corporation, as given in the will, does not correspond to the name of any coporation in existence, it is always admissible to show testator's acquaintance with, 32 Faulkner v. The National Sail- any other, the one thus shown to be ors' Home. 155 Mass. 458. intended will take." Dunham v. "Where the name used does not Averill. 45 Conn. 8G. quoted in desicrnate with precision ^ny cor- Bristol v. Ontario Orphan Asylum, poration. but when the circum- 60 Conn. 4/2. stances come to be proved so manv 33 Fifield v. Van Wyck, 94 \ a. of them concur to indicate that 557; 27 S. E. 446. a particular one was intended, and 34 Tilley v. Ellis. 119 NC. 233. no similar conclusive circumstances 35 Ross v. Kiger, 42 W. Va. 402. appear to distinguish and identify 980 LAW OF WILLS. and interest in, an existing corporation or institntion which cor- responds in some respects, either in name or description, to that spoken of in the wilL^'^ In some cases the courts have gone even farther than merely admitting evidence of the surrounding circumstances, and have admitted direct evidence of testator's intention to show that a given corporation or institution was intended by him to take under the will where the name of such corporation is given in the will so erroneously as not to apply to any existing in- stitution. While the admission of such evidence goes to the very limit of the rules controlling the admissibility of ex- trinsic evidence, it still seems to be a well recognized rule.^'^ Thus testator made a devise to the "Meredith Institution, located at Meredith New Hampshire," and there was no in- stitution of that name. The devise was claimed by the Kim- ball Academy, which was situated at Meriden, New Hamp- shire. It was held that in order to determine testator's inten- tion, evidence might be introduced of his intention direct by showing testator's statement of the motives that induced him to make such a devise on account of his relationship to one of the teachers of that institution, and thus show that claim- ant was the institution really intended as the beneficiary.^^ Where testator devised property to his granddaughter "Lucy May Gordon," and the evidence disclosed that he had no grand- daughter of that name, but that he had one named Mary Jo- sephine Gordon, it was held admissible to show by extrinsic 36 Gilmore v. Stone, 120 U. S. will were made to different insti- 580; Bristol v. Ontario Orphans' tutions connected with the Pres- Asylum, GO Conn. 472 ; Brewster v. byterian Churcli, a gift to "the McCall, 15 Conn. 274; Ayers v. Board of Foreign and Home Mis- Weed, 16 Conn. 291 ; American sions" was held to be a gift to such Bible Society v. Wetmore, 17 Conn. a board of the Presbyterian Church, 181; King V. Grant, 55 Conn. 166; although the evidence disclosed that Hinckley v. Thatcher, 139 Mlass. similar boards were connected with 477; Keith v. Scales, 124 N. C. other Churches; Gilmore v. Stone, 497 ; Hawkins v. Garland, 76 Va. 120 U. S. 586. 149 ; Wilson v. Perry, 29 W. Va. 37 Smith v. Kimball, 62 N. H. 169, Ross V. Kiger, 42 W. Va. 606. 402. 3s Smith v. Kimball. 62 X. H. By means of such evidence and 606. the fact that other gifts in the LAW OF WILLS. 981 evidence that he always called this granddaughter May, and, at the time of the execution of the will, he referred clearly to this granddaughter and declared at that time that she was the beneficiary intended, and that her name was Lucy May Gor- don. ^^ It has been said that where the evidence is clear, equity may correct a description of land contained in a will.^^ An exami- nation of this case, however, shows that by "correction" the court simply meant that by the admission of extrinsic evidence they would allow the property devised to be identified, and that they expressly repudiated the idea of reframing the will as if it were a deed or a contract."*^ Where testator devised the southeast quarter of Section 14, Township 98, Range 17, and the evidence disclosed that he did not own that tract of land, it was held admissible to show exactly what land he owned. The evidence in this case dis- closed that all the real estate he owned was specifically devised except the southwest quarter of Section 14, Township 98, Range 17; the court held that in view of such evidence tliey might reject the erroneous part of the description, viz., that the block was the southeast quarter, and might construe in the will as passing the southwest quarter.'*^ So testator devised "the tract of land on which I now reside," and gave the boundaries of such tract. The evidence disclosed that the description of the boundaries was erroneous, since it was de- scribed as reaching to the public road, which it did not reach by one-fourth of a mile. It was held that extrinsic evidence was admissible to show Avhat testator regarded and treated in his lifetime as being the tract upon which he resided, and by means of such evidence to correct the description by 39 Gordon v. Burris, 141 Mo. G02, ,5G, citing on this point Goode v. citing and following Riggs v. Goode, 22 Mo. 518. Extrinsic evi- Mvers 20 Mo. 239 ; Bradley v. dence admitted in this case was of Rees, 113 111. 327. the sort held by the weight of au- ■10 Thomson v. Thomson, 115 Mo. thority to be admissible. See cases 5f5 cited in this section generally. 41 Thomson v. Thomson, 115 Mo. 42 Eckford v. Eckford, 91 lo. 54. 982 LAW OF WILLS. a boundary so as to insert one more side in the tract, which was irregular in shape, so as to bring the tract to the pub- lic road."^^ §820. Admissibility of evidence where description is not am- biguous. Before it is possible for a court to saj that a description either of a beneliciarj or of property given by will is not am- biguous, it is necessary to admit evidence to identify such bene- ficiary or such property.^^ If such evidence discloses that there is such person or such piece of property, as the case may be, which corresponds to the name or description given in the will, the will is said to be not ambiguous. In such cases the attempt is often made, even by evidence of the surrounding facts and circumstances, or by a direct evidence of testator's intention, to show that he did not mean what the words em- ployed in the will mean when tested by the ordinary rules of construction, and when applied to the surrounding facts. To uphold such attempt would be, of course, to recognize a will the most important part of which would be oral. This would not only violate all ordinary rules of evidence, but would also ignore the statute of wills. Accordingly, where the language of the will has a definite meaning, as interpreted by the rules of construction, and applies, without ambiguity, to the benefi- ciary and property in existence, extrinsic evidence is not ad- missible to contradict testator's intention. This applies equally to evidence of the surrounding facts and circumstances and to direct evidence of the intention, with this one distinction be- tween them, that evidence of the surrounding facts and cir- cumstances is likely to be introduced of necessity in deter- 43 Thomson v. Thomson, 115 Mo. what tract was intended was chiefly 56. ( In this case some difficulty testator's conduct in fencined, 819 Aylward v. Briggs, 385, 409, 430 994 TABLE OF CASES. (References are to sections.) B Baaeke v. Baacke, 285 Babb V. Harrison, 57 Babcock v. Collins, 312, 356, 357 Babidge v. Vittum, 773 Backus V. Baltimore Pres. Assoc, 501, 562, 600, 084 Bacigalupo v. Superior Court. 319, 321, 324 Baeder's Estate, 685 Bagot, In re, 46t, 507 Bagwell V. Dry, 507 Bailey v. Bailey, 28, 166, 173 Bailey, Goods of, 94 Bailey's Estate, 794 Bailey v. Briggs, 806 Bailey v. Brown, 546 Bailey v. Fisher, 089 Bailey v. Hawkins, 566, 595, 663, 670 Bailey v. Hoppin, 145 Bain v. Cline, 116 Baines v. Dixon, 561 Bains v. Ottey, 533 Baker v. Baker, 46, 47, 119, 123, 186, 398, 527 Baker v. Bancroft, 199 Baker v. Chastang, 93 Baker v. Cravens, 320, 335, 341 Baker v. Dobyns, 229 Baker v. Dodson, 237, 238 Baker v. Farmer, 767 Baker v. Lewis, 105 Baker v. McAden, 616, 618, 619 Baker v. McGrew, 676 Baker v. McLeod, 548, 658, 6^2, 668, 676 Baker v. Riley, 462 Baker v. Scott, 491, 561 Baker v. Stuairt, 638 Baker v. Thompson, 576 Baker's Appeal, 162, 164, 186, 307 Balch V. Pickering, 463 Balcom v. Hayes, 558 Baldwin v. Baldwin, 209, 210 Baldwin v. Hill, 726 Baldwin v. Humphrey. 658 Baldwin v. Parker, 382, 405 Baldwin v. Robinson, 411, 412 Baldwin v. Rogers, 545 Baldwin v. Spriggs, 283, 287 Baldwin v. Taylor, 463, 676 Baldwin v. Vreeland, 718 Baldwin's Estate, 382, 383 Baldwin, In re, 39 Ball V. Kane, 112, 116, 127, 366, 384, 400, 423 Ball, Goods of, 437 Ballard v. Carter, 142 Ballantine v. Proudfoot, 105 Balliett v. Veal, 468 Balliet's Appeal, 278 Ballinger v. Connable, 788 Ballow V. Hudson, 312 Balme's Estate, 314 Balsley v. Balsley, 806 Bancroft v. Fitch, 657, 660 Bancroft v. Ives, 288, 292, 293, 294 Bancroft v. Otis, 133. 414, 416 Bane v. Wick, 467, 733 Bank v. Bliss, 66, 67, 68, 314 Bank' of Charleston v. Dowling, 684 Bank v. Gregg, 817 Bank of Ireland v. McCarthy, 758 Bank v. White, 292 Banks v. Banks, 276 Banks v. Goodfellow, 94, 106 Banks' Will, 473, 578 Bannatyne v. Bannatyne, 100 Banning v. Banning, 330, 354, 434, 489 Banning v. Gottshall, 657 Bannister v. Bannister, 711 Bannister v. Jackson. 97, 112 Banzer v. Banzer, 574 Baptist V. Baptist, 97, 116 Baptist Church v. Robbarts, 249, 432, 449 Barber v. Davidson, 768 Barber v. Pittsburgh, etc., Ry. Co., 514, 526, 566. 591. 593 Barber's Appeal, 389 TABLE OF CASES. 995 (References are Barber's Estate, 382, 383, 400 Barber's Will, 47 Barbour v. Moore, 96, 125, 312, 313, 340, 3/9, 385, 400, 427, 128 Barclay v. Maskelyne, 277 Barclay v. Piatt, 578, 579, 613 Bardell v. Brady, 327, 330, 361 Bare v. Bare, 712 Barfield v. Barfield, 678 Barksdale \f. Hopkins, 264, 265, 273, 277 Barker v. Bell, 158, 227, 268, 274, 305 Barker v. Donnelly, 25, 644, 648, 653, 809 Barker's Estate, 291, 292, 293, 295 Barkley v. Cemetery Association, 333, 414 Barkman v. Hain, 660 Barksdale v. Barksdale, 268 Barksdale v. Davis, 252, 329 Barlaw v. Harrison, 446 Barlow v. Barnard, 604 Barlow v. Waters, 23, 127, 128, 370, 385, 400 Barnard v. Adams, 645 Barnard v. Bailey, 684 Barnard v. Barlow, 817 Barnard v. Stone, 696 Barnes V. Barnes, 223, 371, 382 383 Barnes v. Crowe, 307 Barnes v. Dow, 685 Barnes v. Hanks, 269 Barnes v. Irwin, 92 Barnes v. Marshall, 573 Barnes v. Patch. 528 Barnes v. Stephens, 53 Barnet v. Barnet, 507 Barnett v. Montgomery, 685 Barnewall v. Murrell, 161, 184, 227' 244, 373, 382, 383, 450 Barney v. Hayes, 34, 58, 307, 308, 311, 343 Barney's Will. 129. 131, 400, 414, 426, 428 Barnhard v. Barlow. 467 Barr v. Chapman, 356 to sections.) Barr v. Clostemian, 357 Barr v. Graybill, 21 Barr's Will, 357 Barrel! v. Barrell, 676 Barrett v. Geisinger, 79 Barrett v. Marsh, 611 Barry v. Butlin, 406, 414 Bartee v. Thompson, 188, 382 Bartels v. Froehlich, 692 Barth v. Barth, 684 Bartholick's Estate, 332, 342 Bartholomew's Estate, 668, 669 Bartlett v. Manor, 321, 326 r5artlett v. Monroe, 157 Bartlett v. Patton, 467, 596 Bartlett v. Bemington, 823 Bartlett v. Slater, G07 Bartlett, In re. 636, 641, 642, 645, 646, 649, 652, 684 Barton v. Tuttle, 514, 517 Bascom v. Albertson, 35 Baskett's Estate. 317 Baskin v. Baskin, 205, 223, 228 Bass V. Bass, 53 Basset v. St. Levan, 482 Bassett v. Durfee, 719, 729 Bassett v. Granger, 554, 558 Bassett v. Rogers, 765 Batchelder v. Batchelder, 130 Batchelder, In re, 808 Batchelor's Estate, 608 Bat,che)lor's Succession, 249, 254, 454, 780 Bate, In re, 764, 773 Bates V. Barry, 608 Bates V. Bates, 400, 651 Bates V. Dewson, 528 Bates V. Gillett, 527, 665 Bates V. Hoi man, 271, 273 Bates V. Leonard. 691 Bates V. Officer, 198 Bates V. Smith. 326 Bates V. Zinsmeister. 574 Bates. In re. 533. 554, 803 Batione's Appeal. 737 Battle V. Speight, 306 Batton V. Watson. 257 Battersbv v. Castor. 718 996 TABLE OF CASES. (References are to sections.) Baugarth v. Miller, 351 Bawden, In re, 459, 460, 755, 757 764, 772 Baxter v. Abbott, 382, 395 Baxter v. Baxter, 806 Baxter v. Bowyer, 470, 713, 723 732 Baxter v. Dyer, 279 Baxter v. Kitch, 74 Baxter v. Winn, 582 Baxter v. Wolfe, 614 Bay V. Posner, 692 Bayer v. Walsh, 717 Bayley v. Bailey, tQ, 53, 265 Bayliss v. Pricture, 73 Baylies v. Spaulding, 111 Beadle v. Beadle, 699 Beadles v. Alexander, 423 Beales v. Cri-sford, 496, 528 Beall V. Cunningham, 401 Beall V. Schley, 683 Bean v. Myers, 577 Beane v. Yerby, 216 Beard v. Jones, 604 Beatty v. Lalor, 496 Beatty's Will, 321 Beaty v. Richardson, 24 Beaubien v. Cicotte, 390, 392 Beauchamp's Appeal, 258 Beaumont v. Fell, 819 Beaumont v. Keim, 273, 274 Beauregard's Succession, 345 Beazley v. Denson, 383 Beck V. Metz, 288, 292 Becker's Estate, 699 Beckett, In re, 225 Beckley v. Leffingwell, 658 Becton v Alexander, 806 Beddard v. Harrington, 571 Bedell v. Fradenburgh, 142, 489 Bedford v. Bedford, 269, 462, 562, 597, 643, 645, 674 Bedford's Appeal, 592 Bedlow's Will. 405 Beebe v. McKenzie, 52 Beekman v. Bonson, 508 Beers v. Naramoore, 488, 511, 599, 630, 632, 633, 691 Behrens v. Behrens, 354, 437, 443, 448, 449, 450 Beilstein, In re, 802 Beirne v. Beirne, 599, 717 Belcher v. Belcher, 692 Belcher's Will, 58 Belfield v. Booth, 029, 8C8 Belknap v. Robinson, 427 Bell Co. V. Alexander, 159 Bell V. Bell, 701 Bell V. Hewitt, 74 Bell V. Hughes, 219 Bell V. Newman, 3i2 Bell V. Watkins, 751 Bell's Estate, 467 Bell, In re, 684 Bellamy v. Peeler, 234 Bellas's Estate, 574 Bellinger, In re, 691 Belshaw v. Chitwood, 244, 279 Belshoover v. Brandt, 461 Belton V. Summer, 283, 287, 312, 340 Benbow v. Moore, 41, 702 Bence, In re, 677 Bench v. Biles, 75" Benge v. Hiatt, 72, 73, 78 Benn, In re, 463 Bennalack v. Richards, 621, 689 Bennett v. Bennett, 97, 100, 132, 413, 414, 429 Bennett v. Crane, 156 Bennett v. Gaddis, 278, 279 Bennett v. Harper, 710 Bennett v. Hibbert, 23, 110, 151, 385 Bennett v. Hutchinson, 93 Bennett v. Packer, 466, 681, 711. 723 Bennett v Robinson, 561 Bennett v. Snerrod, 432, 449 Bennett v. Simon, 485 Bennett v. Tankerville, 278 Bennett's Estate, 765 Benson v. Corbin, 676 Benson v. Hall, 468 Benson's Estate, 537 Benson, In re, 507, 736 TABLE OF CASES. 997 (References are to sections.) Benoist v. Murrin, 94, 96 Bent V. Thompson, 319, 321 Benton v. Benton, 548, 551, 6G8 Bentz V. Fabian, 572, 576, 684 Bentz V. Maryland Bible Society, 5G2, 567, 674 Berberet v. Berberet, 127, 223, 405, 413, 421 Berg's Estate, 323, 378, 379 Bernard v. Minsliall, 507 Bernsee's Will, 374 Berry v. Berry, 524 Besancon v. Bronson, 316 Best V. Ferris, 557 Best V. Hammond, 820 Best V. Van Hook, 582 Bethea v. Bethea, 558, 594, 598, 658, 667, 668, 669, 676 Bethell v. Moore, 249 Bettison v. Bromley, 191, 362 Betts V. Harper, 66, 67, 68 Beurhaus v. Cole, 636, 637 Beurhaus v. Watertown, 154, 610, 644 Bevan v. Cooper, 747, 758 Bevelot v. Lestrade, 112, 116, 127, 128, 173, 330, 361, 382, 423 Bever v. Spangler, 102, 333, 384, 389, 394, 400 Bevins v. Phillips, 49, 52 Bey's Succession, 384, 385 Bibb V. Thomas, 247, 248 Bice V. Hall, 98 Bickham v. Cruttwell, 765 Biddle v. Biddle, 237, 238 Bidwell's Succession, 418 Bierce v. Bierce, 598 Bierer's Appeal, 72/ Bigelow V. Barr, 573 Bigelow V. Cady, 599, 629 Bigelow V. Clapp, 551 Bigelow V. Gillott, 249, 254 Bigelow V. Morong, 526 Bigley v. Souvey, 53 Bigley v. Watson. 140, 466 Biggerstaff v. Biggerstaff, 281, 325 Bigstaff V. Lnmpkins, 673 Bilderbacli v. Boyce, 689 Biles V. Dean, 325 Bill V. Payne, 467, 543 Billinghurst v. Walker, 766 Billings V. Warren, 52 Bills V. Bills, on Bingel v. Volz, 466, 809, 816 Bingham's Appeal, 39 Bingham, In re, 705, 707, 764 Binning \. Binning, 589 Birchard v. Scott, 645 Bird V. Gilliam, 565, 579 Bird V. Hawkins, 710, 754 Bird V. Lucicie, 547 Bird V. Merklee, 643, 647 Bird V. Pickford, 637 Bird V. Pope, 70, 79 Bird V. Stout, 507, 755, 761 Bird's Estate, 308, 785 Birks, In re, 526 Birney v. Richardson, 551 Bishop V. Blair, 89 Bishop V. Howarth, 750, 754, 759, 820 Bishop V. McClelland, 669 Bishop V. Sharp, 88 Bisson V. R. R., 554, 557 Bist, Goods of, 432 Bittner v. Bittner, 428 Bivins v. CraAvford, 462 Bizzey v. Flight, 166 Black V. Ellis, 47, 112 Black V. Foljambe, 410 Black V. Herring, 59, 472, 612, 614, 683, 814 Black V. Hill, 819 Black V. Richards, 66, 67, 487, 819 Black V. Williams, 676 Blackburn v. Crawford, 388 Blackbourn v. Tucker, 21, 25. 645, Blackman v. Preston, 53 Blackmann v. Fish, 685 Blackmer v. Blackmer, 492, 494 Blackmer's Estate, 138, 716 Blackmore's Succession, 489 Blaekstone's Appeal, 787 Blaggs V. Miles. 698 Blair v, Johnson, 806 998 TABLE OF CASES. (References are to sections.) Blair v. Miller, 56/ Blair, In re, 186 Blair's Will, 102 Blake v. Rourke, 382, 416, 421, 426 Blake's Estate, 750 Blake's Trusts, 468 Blakely v. Blakely, 325, 401 Blakelj' v. Quinlaii, 482 Blakely, In re, 692 Blakemore's Succession, 142, 252, 781 Blakley's Will, 108 Blanchard v. Blanchard, 255, 656 Blanchard v. Chapman, 461, 612 Blanchard v. Wilbur, 315 Bland v. Lamb, 141 Blankenbaker v. Snyder, 522 Blass V. Helms, 546, 548 Bleight V. Bank, 702 Blewitt V. Blewitt, .14 Block V. Association, 136 Block V. Block, 292 Block V. Mauck, 752 Blockman v. Gordon, 21 Blodgett V. Moore, 283, 284 Blood's Estate, 384 Blood's Will, 392 Bloomer v. Waldron, 691 Bloss's Estate, 726 Blough V. Parry, 94, 97, 108, 333, 382, 383 Blouin V. Phaneuf, 750 Blount V. Walker, 341 Blower v. Morret, 776 Blume V. Hartman, 414, 448 Blundell v. Pope, 768, 769 Blundell, In^ re, 650 Blymeyer's Will, 315, 316, 449, 450 Board v. Love, 790 Boards, In re, 755, 758 Board of Education v. Ladd, 740 Board of Foreign Missions v. Gulp, 649 Boardman v. Woodman, 104, 108 Bobb's Succession, 269 Bock, In re, 330 Bodine v. Arthur. 568 Bodine v. Brown, 512, 554 Bodman, In re, 497 Bodwell V. Nutter, 681 Boehm v. Kress, 380 Boehm, In re, 314 Bogan V. Hamilton, 482 Bogardus v. Clark, 339 Boggs V. Taylor, 602, 819 Bogle, In re, 618 Bohanon v. Walcot, 273 Boies' Estate, 614, 622 Boisaubin v. Boisaubin, 409, 429 Boldry v. Parr is, 210 Boling V. Bolin, 52 Bolin V. Miller, 802 Bolles V. Harries, 239 Bolles V. Smith, 543 Boiling y. Boiling, 38. 713 Bolman v. Overall, 70, 79 Bolton V. Banks, 659 Bolton V. Bolton, 522 Bolton V. Schriever, 340, 341 Bolton. In re, 156 Boman v. Boman, 291, 292, 293 Bonanza's Succession, 345 Bond V. Home for Aged Women, 640, 648 Bond V. Seawell, 161, 227 Bonnell v. Bonnell, 405, 660, 662. 806 Bonnemort v. Gill, 319, 324, 325, 397, 400 Bonner v. Hastey, 590 Bonner, In re, 532 Bonner v. Young, 674 Bonnet, In re, 507 Book V. Book, 52 Boomhower v. Babbitt, 607 Boone v. Lewis. 190, 217 Boone v. Ritchie. 333. 382 Booraem's Estate. 668 Booth V. Arlington, 774 Booth V. Baptist Church, 162. 466, 507, 508. 629, 636, 640, 675, 746. 769 Booth, In re, 603 Booth's Will. 181 Boraston's Case, 659 TABLE OF CASES. 999 ( References are to sections.) Borden v. Borden, 278 Borden v. Downey, 575, 576 Borden v. Jenks, VV6 Borgner v. Brown, 058, 676 Borland v. Nichols, 713 Born V. Hortsman, 681 Bo.stick V. Chovin, 138 Boston Safe Deposit and Trust Co. V. Coffin, 4G3, 406, 408, 473 Boston Safe Deposit Co. v. Plum- mer, 775 Boston Safe Deposit and Trust Co. V. Stich, 562 Botsford \% Krake, 233 Botsford's Appeal, 773 Boudinot v. Bradford, 244, 277, 437 Boughey v. Minor, 346 Boughton V. Boughton, 638 Boughton V. Knight, 96 Bourke v. Wilson, 242 Boutelle v. City Savings Bank, 5S1, 631, 692 Bowditch V. Andrew, 528, 549 Bowditch V. Ayrauit, 608 Bowdoin, College v. Merritt, 25 Bowen v. Bowen, 577, 580, 729 Bowen v. Dean, 695 Bowen v. Hoxie, 288, 290, 293 Bowen v. Johnson, 278 Bowen v. Swander, 491, 561, 718 Bowen, In re, 93, 629 Bower v. Bower, 94, 96, 291, 292^ 293, 390, 394, 39V, 820 Bowers v. Bowers, 281 Bowers v. Bowman, 286 Bower's Accounts, 345 Bower's Estate, 548 Bowes, In re, 010 Bowey v. Ardill, 562 Bowker v. Bowker, 524 Bowler v. Bowler, 52 Bowles '^\ Caudle, 468 Bowlby ». Thunder, 341, 611 Bowma v. Bowman, 577 Bowman, In re, 540 Bowser v. Matler, 576 Boyce v. Boyce, 675 Boyd V. Cook, 255 Boyd V. Sachs, 663, 681 Boyens' Will, 188 Boyer v. Allen, 681 Boyer v. Decker, 340 Boyer's Estate, 102, 602 Boyes v. Cook, 284 Bovkin v. Boykin, 776 Boylan v. Meeker, 23, 223, 244, 203, 277 Boyle V. Boyle, 449, 450, 452, 694 Box V. Word, 139 Brabham v. Crosland, 059 Bracken's Estate, 322 Braddock, Goods oi, 221 Bradford v. Andrews, 312, 323 Bradford v. Bradford, 683 Bradford v. Clower, 234, 236 Bradford v. Kents, 727 Bradford v. McConihay, 773, 775 Bradish v. Gibbs, 89, 90 Bradish v. McClelland, 277 Bradlee v. Andrews, 528 Bradley v. Bradley, 292 Bradley v. Carnes. 575, 577 Bradley v. Rees, 819 Bradley v. Westcott, 576 Bradley's Estate, 551, 668 Bradshaw v. Roberts. 302 Bradsher v. Hightower, 149 Bradway v. Holmes, 570 Brady v. Brady. ^8\, 491, 005, 780, 781 Brady v. Cubitt, 283 Brady v. McBride, 115 Brady v. Smith, 72, 73 Bragaw v. Bolles, 750 Bragg V. Carter. 522, 550, 551 Brahm v. Burchell, 304 Bramell v. Adams, 743 Bramel v. Bramel, 333, 381, .385 Bramell v. Cole, 605. 695 Brand v. Rhodes, 573 Brandon v. Robinson, 685 Brandon v. Yeakle, 498 Brandt v. Virginia Coal Co., 575 Branson v. Hill, 676 lOOO TABLE OF CASES. Brasher v. Marsh, 459, 4(31, 462, 472, 659, 662 Brasier's Estate, 251, 299 Bratt, In re, 683 Brawley v. Collins, 477 Bray v. Pullen, 475, 551 Brearley v. Brearley, 461 Breathitt v. Whittaker, 67, 69, 277 Breck v. Parkes, 760 Bredenburg v. Barlin, 22, 692 Breed v. Pratt, 115 Breese v. Stiles, 292 Breithaupt v. Bauskett, 24 Brennan v. Moran, 799 Brennan v. Winkler, 643 Brendlinger v. Brendlinger, 547 Brewer v. Barrett, 244, 329 Brewer v. Baxter, 53 Brewer v. Hieronymous, 73 Brewster v. McCall, 142, 643, 819 Brewster, In re, 254 Briant v. Garrison, 473 Briee v. Horner, 741 Brick V. Brick, 47, 401 Bridger, In re, 21 Bridgewater v. Gordon, 540, 658 Briggs V. Carroll, 750, 755 Briggs V. Hosford, 767 Brigham v. Fayerweather, 324, 339 Brigham v. Kenyon, 150 Bright V. Adams, 53 Bright's Appeal, 1 1 1 Brightman v. Brightman, 594 Brill V. Wright, 755, 764 Brilliant v. Wayne Circuit Judges, 344 Bringhurst v. Orth, 268, 269 Brinker v. Brinker, 79 Brinker v. Speer, 685 Brinkley v. Sanford, 366 Brinkman v. Rueggesick, 96, 403 Brinton v. Van Cott, 70, 75, 79 Briscoe v. Briscoe, 574 Bristol V. Ontario Orphan Asylum, 819, 823 Bristow V. Bristow, 800 Bristow V. Warde, 726 (References are to sections.) Brit, Goods of, 164 Britt V. Eawlings, 570, 573 Brittain v. Carson, 557 Broadway National Bank v. Ad- ams, 685 Broach v. Sing, 237 Brock, In re, 371 Broderick v. Broderick, 773, 774 Broderick's Will, 315, 340 Brogden v. Brown, 113 Brokaw v. Peterson, 524, 594 Brombacher v. Berking, 491, 579, 595, 597, 606 Bromley v. Mitchell, 52 Bromley's Estate. 414, 429 Bronson v. Strouse, 612, 651 Brook V. Chappell, 264 Brook V. Turner, 89 Brooke v. Kent, 276 Brooke. In re, 579 Brooke's Appeal, 333 Brooke's Estate, 72, 390 Brooks V. Belfast, 626, 640, 641 Brooks V. Brooks, 755 Brooks V. Duff ell, 211 Brooks V. Hanna, 602, 804 Brooks V. Kipp, 523, 561, 594, 663, 676 Brooks V. Raynolds, 604 Brooks V. Woodson. 222 Brook's Will, 570 Broome v. Monck, 143, 148 Brossenne v. Schmitt, .717, 726 Brotherton v. Hellier, 304 Brotzman's Appeal, 571 Broutin v. Vassant. 243 Brown v. Beaver, 230 Brown v. Bell, 414, 441 Brown v. Boyd. 482 Bro^^^l v. Brown. 237. 272. 312, 434, 445. 461, 620, 711. 717, 726, 776 Brown v. Bur dick, 340 Brown v. Cannon, 269 Brown v. Clark, 162. 280, 284, 307, 310 Brown v. Corey. 345 BroAvn V. Eaton. 58 Bro^\^l v. Esterhazy, 636 TABLE OF CASES. 1001 (References are to sections.) Brown v. Farmers' Loan Co., 577 Brown v. i^'isher, 4U0 Brown v. Garten, 80 Brown v. Gibson, 312 Brown v. Grifliths, 329, 330 Browne v. Hammond, 551 Brown' V. Hord, 758 Brown v. Hospital, 50G Brown v. Just, 285 Brown v. Knapp, 754 Brown v. Lippincott, 676, 803 Brown v. McAllister, 227 Brown v. Miller, 700, 719 Brown v. Mitchell, 90, 98, 389, 390, 392, 400 Brown v. Moore, 52 Brown v. Peck, 681 Brown v. Riggin, 113, 311, 397 Brown v. Stark, 341 Brown v. Sutton, 75, 79 Brown v. Tilden, 264 Brown v. Tompkins, 153 Brown v. Thorndike, 203, 264, 276 Brown v. Walker, 370, 448 Brown v. Ward, 105, 111 Bro^vn v. Wright, 023 Brown- Sequard, Goods of, 31 Brown, In re, 272, 002, 617, 669 Brown's W^ill, 181, 248, 254 Browne v. Paull, 603 Brownfield v. Browifield, 130, 717 Browning v. Mostyn, 344 Browning v. Reanie, 100 Browning v. Southworth, 595 Bruce v. Charlton, 609 Bruce v. Moon, 74 Bruch's Estate, 681 Brundige v. Benton, 354 Brunor, In re, 400 Brunson v. Martin, 605 Brunt V. Brunt, 257 Brush V. Brush, 279 Brush V. Wilkins, 283 Bryan v. Bradley, 52 Bryan v. Dunn, 685 Bryan v. Millby, 611 Bryan v. White. 223 Bryan's Appeal, 760 Bryant v. McCune, 724 Bryant v. Pierce, 331, 333, 411,.423, 426, 427, 462 Bryce, In re, 173, Brydges v. Chandos, 142 Bryson v. Holbrook, 561, 739 Buchanan v. Denig, 005 Buchanan v. Little, 037 Buchanan v. Lloyd, 507, 752 Buchanan v. Matlock, 434 Buck V. Lantz, 145 Buck V. Smith. 614 Buck, In re, 647 Buckingham v. Morrison, 602 Bucklin v. Creighton, 565 Buckman's Will, 302 Buekmaster v. Harrop, 148 Budd V. Haines, 554, 558, 001, 008 Budlong's Will, 118, 120, 128, 131, 385 Buehler's Appeal, 800 Buffinton v. Fall River National Bank, 713 Buffinton v. Moxam, 744 Buffon V. Tiverton. 504 Bulger V. Ross, 94, 127, 385, 390, 400, 405, 410, 422 Bullard v. Attorney, General, 806 Bullard v. Chandler, 647 Bullard V. Shirley. 630, 044, 675 Bullerdick v. Wright, 098 Bullock V. Downs. 547, 549 Bunch V. I\icks, 52 Bunch V. Ray, 004 Bundrick v. Haygood, 237, 447 Bundy V. McKnight, 210, 218, 400, 409 Bunnell v. Evans, 517, 565 Bunter v. Coke, 142 Burbank v. Sweeney, 690 Burbank v. Whitney, 578, 684, 695 Burch V. Brown, 292 Burdge v. Walling, 676 Burdid v. Burdis, 678 Burge V. Hamilton, 311 Burgess v. Bowles, 710. 716, 728 Burgovne v. Showier, 254, 432 1002 TABLE OF CASES. (References are to sections.) Burke v. Lee, 816 Burke v. Stiles, 507, 772 Burke'a Succession, 643 Burkett v. Whittemore, 21, 85, 89, 93, 341, 698 Burkhart v. Gladdish, 94, 96, 105, 387, 403, 776 Burkinshaw v. Hodge, 798 Burleigh v. Clough, 572, 578, 684 BVirnett v. Milnes, 327 Burney v. Allen, 2i2, 218 Burney v. Torrey, 97, 132, 133, 333, 366, 390, 426 Burnham v. Burnham, 669, 675 Burnham v. Comfort, 279, 779, 782 Burnham v. Norton, 807 Burnham v. Porter, 161 Burns v. Allen, 288, 289, 293, 294, 820 Burns v. Burns, 258 Burns v. Smith, 70, 72, 73, 76, 77, 79, 81 Burns v. Travis, 2ti7, 275, 277 Burns v. Van Loan, 341 Burns' Will, 123, 382, 385, 387, 400 Burr V. Burr, 344 Burrow v. Burrow, 151 Burrows, In re, 522, 676 Burt V. Gill, 605 Burton v. Brown, 217 Burton v. Gowell, 244 Burton v. Holly, 89 Burton v. Scott, 382, 401 Burton's Estate, 80/ Burtonshaw v. Gilbert, 258, 271 Bush V. Bush, 423 Bush V. Couchman, 491 Bush V. Delano, 333, 407, 414, 423 Bush V. Lisle, 112, 418 Bush V. McFarland, 220 Butler V. Bushnell, 547 Butler V. Butler, 463, 766 Butler V. Parochial Fund, 21 Butler V. Trustees, 649 Butler, In re, 765 Butterfield v. Reed, 684 Butterfield's Will, 630 Buys V. Buys, 390, 392 Buzby V. Darnell, 226 Buzby V. Roberts, 545 Buzby's Appeal, 54/ By bee v. Bybee, 510 Byers v. Hoppe, 58, 244 Byer's Estate, 597 Byles V. Cox, 65 Byrn v. Kleas, 588 Byrne v. France, 659 Byrne v. Hume, 768, 770, 774 Byrne v. Weller, 561 Byrnes v. Baer, 479 Byrnes v. Stilwell, 658 Byron, In re, 525 Cable V. Cable, 547 Cadell V. Wilcocks, 268 Cadge, Goods of, 432 Cady V. Cady, 7 58, 751 Cadywold, Goods of, 281 Caeman v. Van Harke, 277, 450 Cahill V. Owens, 434 Cahill V. Russell, 089 Cahill's Estate, 331, 423 Cain V. Bernkley, 93 Cain V. Hooper, 599 Cain V. Teare, 549 Calder v. Curry, 703 Caldwell v. Anderson, 385 Caldwell v. Caldwell, 466 Calef V. Parsons. 52 Calkins v. Calkins, 423, 426 Calkin's Estate, 423 Calkins, In re, 12/ Callagan v. Burns, 437 Callaghan's Estate. 293 Callahan v. Robinson, 710, 711 Calmes v. Eubank, 562 Calloway v. Cooley, 340, 356, 357 Calloway v. Doe, 28 Calloway, In re. 314 Cameron v. Cameron, 7.32 Cameron v. Harper, 755 TABLE OF CASES. 1003 (References are to sections.) Camp V. Shaw, 112, 276, 299, 301, 331, 389, 431, 432 Camp V. Stark, 21 Campbell v. Barrera, 126, 130, 311, 404, 423 Campbell v. Beaumont, 658 Campbell v. Campbell, 98, 240, 327,- 397, 401 Campbell v. Carnahan, 97, 102 Campbell v. French, 277 Campbell v. i^ogan, 219 Campbell v. McGuiggan, 127, 180, 210, 211, 334, 345 Campbell v. ]McKerricher, 75 Campbell v. Martin, 782 Campbell v. Noble, 561 Campbell v. Porter, 312, 315 Campljell v. Rawden, 545 Campbell v. Stokes, 548, 549, 668 Campbell, In re, 759 Canada's Appeal, 203, 206, 227, 423, 427 Canatsey v. Canatsey, 372 Cannon v. Apperson, 723 Canterbury v. Wyburn, 25, 35, 36 Capel V. Girdler, 143 Capp V. Brunner, 498 Capper v. Capper, 133, 409, 424 Capper's Will, 319 Carberry, In re, 774 Card V. Alexander, 285 Card V. Grinman, 244, 255 Carder v. Fayette County, 154, 675, 733 Carey v. Dennis, 55 Carey's Estate, 284, 340 Carew, In re, 685 Carl V. Gabel, 329, 382, 405 Carl's Appeal, 268 Carlisle v. Green, 766 Carlton v. Carlton, 191, 192, 193 Carlyle v. Cannon, 561 Carmichael v. Carmichael, 79 Carmichael v. Lathrop. 782, 783, 784, 785, 788 Carnagy v. Woodcock, 493 Carney v. Byron, 603 Carney v. Kain, 145, 466, 628, 677 Carpenter v. Bell, 28 Carper v. Crowl, 669, 772 Carpenter v. Bailey, 105, 323, 346 Carpenter v. Calvert, 385, 389 Carpenter v. Denoon, 316, 356, 357, 358, 371 Carpenter v. Hannig, 52 Carpenter v. Hatch, 405, 414 Carpenter v. Miller, 276, 277 Carpenter v. Snow, 292, 294 Carpenter v. Strange, 722 Carpenter's Estate, 127, 390 Carr v. Bredenberg, 664 Carr v. Brown, 341 Carr v. Carr, 716 Carr v. Effinger, 577 Carr's Estate, 688 Carrico v. Neal, 400 Carriger, In re, 127 Carritt, Goods of, 267 Carroll v. Bonham, 234 Carroll v. Carroll, 142 Carroll v. House, 127, 414, 419 Carroll v. Norton, i90 Carroll v. Richardson, 806 Carter v. Alexander, 470 Carter v. Bentall, 526 Carter v. Gray, 574, 755 Carter v. Harvey, 719 Carter v. Presbyterian Church, 31, 33, 746 Carter v. Reddish, 462, 471, 565 Carter v. Thomas, 278 Carter v. Worrell, 751 Cascaden's Estate, 550 Case V. Hall, 078, 754 Casey v. Casey, 6V4 Cash V. Lust, 97, 344, 409 Cashman's Estate, 461, 462, 468 Cassilly v. Meyer, 491 Cassell V. Vernon, 89 Cassem v. Kennedy. 679 Cassidy v. Hynton, 576 Cassmore, Goods of, 183, 186 Castle V. Fox. 142 Castor V. Jones, 57 Cates V. Gates, 49, 52 Catlett V. Catlett, 1.58, 175, 181 1004 TABLE OF CASES. (References are Caulfield v. Sullivan, 341 Cauvien's Succession, 241 Cavalry's Estate, 548, 635, 636 Cave V. Holford, 278 Caven v. Agnew, 333, 404 Caverlye's Estate, 90 Cavett's Appeal, 173 Caviness v. Rushton, 70 Cawley v. Knapp, 58 Cawley's Appeal, 44, 69 Cawley's Estate, 67 Chace v. Chace, 287 Chace v. Gregg, 485, 631, 715, 725 Chace v. Lamphere, 488 Chaddick v. Haley, 428 Chadwick v. Chadwick, 508 Chadwick v. Livesey, 646, 654 Chadwick v. Tatem, 482, 729 Chafee v. Maker, 554, 657, 669, 794 Chaffee v. Baptist Convention, 174 Chafin's Will, 111 Chamberlain v. Berry, 737 Chamberlain v. Chamberlain, 31, 35 Chamberlain v. Taylor, 707 Chamberlayne v. Brockett, 626, 640, 642 Chambers v. Chambers, 509, 602 Chambers v. Higgins, 25, 539 Chambers v. McDaniel, 162, 166 Chambers v. Tulane, 692 Chamblee v. Broughton, 564, 820 Champion, In re, 309 Chaney v. Missionary Soc, 65 Chandler v. Barrett, 96, 109, 384 Chandler v. Ferris, 97 Chandler v. Jost, 132, 405, 406, 426 Chandler v. Mills, 614 Chandler's Appeal, 479 Chappell V. Society, 819 Chappell V. Trent, 97, 116, 123. 125. 126, 133, 175, 208, 380, 385, 388, 398, 400, 405, 406, 418, 429 Chapin v. I'arker, 269, 545, 657 Chapman v. Chapman, 668 Chapman v. Dismer, 284 Chapman's Will, 343 to sections.) Charch v. Charch, 136, 715 Charlemont v. Spencer, 92 Charleston, etc., Ky. Co. v. Hughes, 614 Charlton v. Miller, 285 Charman v. Charman, 278 Charter v. Charter, 813, 819 Chase v. Warner, 752 Chase v. Cartwright, 689 Chassaing v. Durrand, 673 Chase v. Kittredge, 215, 222 Chase v. Ladd, 576 Chase v. Lackerman, 463 Chase v. Peckham, 545 Chase v. Stockett, 162, 335, 481, 492, 640, 648 Chavez v. Chavez, 52 Cheatham v, Gowar, 546 Cheatham v. Hatcher, 218 Cheese v. Lovejoy, 252, 264 Cheever v. North, 261, 270, 273, 310, 344, 438, 441. 449, 453 Cheney v. Plumb, 506 Cheney v. Selman, 551 Cherbonnier v. Goodwin, 661 Chesebro v. Palmer, 566 Cheshire v. Purcell, 462 Chess's Appeal, 145, 467 Chester County Hospital v. Hay- den, 771 Chicago Title & Trust Co. v. Brown, 341 Chichester v. Quatrefages, 311 Chifferiel, In re. 269 Chilcott's Estate, 310, 311 Children's Aid Society v. Loveridge, 362 Childs V. Eussell, 549 Chinery, In re. 532 Chipman v. Montgomery, 806 Chisholm v. Ben, 222, 441, 450 Chrisman v. Chrisman, 97, 312, 382 Chrisman v. Wyatt, 52 Christian, Goods of, 219 Christie v. Christie, 468 Christmas v. Whinyates, 449 Christy v. Badger, 487 Christy v. Christv. 461 TABLE OF CASES. 1005 (References are Christoflferson v. Pfennig, 659 Chubbock v. Murray, 597 Church V. Church, 543 Church V. Crocker, 284 Church, Central M. E., v. Harris, 580 Church V. McLaren, 719, 730 Church V. Shively, 649 Church V. Sniitli, 153 Church V, Trustees, 640 . Church of Jesus Christ of the Lat- ter Day Saints v. The United States, 655 Church V. Warren Mfg. Co., 489 Chwatal v. Schreiner, r2, 526 Cilley V. Patten. 227, 315 Cilley, In re, 315 Cissell V. Cashell, 752 Citizens' Bank & Trust Co. v. Bradt, 613 Chaffey v. Ledwith, 97, 406, 429 Claflin V. Ashton, 470 Claflin V. Claflin, 669 Clamorgan v. Lane, 468 Clapp V. Fullerton, 94, 105, 120, 344, 392 Clapton V. Buhner, 547 Clark V. Benton, 545 Clark V. Cammann, 744 Clark V. Clark, 2, 145, 194, 196, 696, 710, 711 Clark V. Cordry, 78 Clark V. Dunnavant, 223 Clark V. Elborn, 244 Clark V. Ellis, 113, 312, 323. 378 Clark V. Hershy. 727 Ciark V. Hill. Oil Clark V. Hoskins, 193, 196 Clark V. Jetton, 782 Clark V. Marlow, 750, 751 Clark V. Morison, 244, 424 Clark V. Moi'ton, 441 Clark V. Tennison. 6R1 Clark V. Turner, 345. 435, 440, 441 Clark's Appeal, 28, 34 Clark, Goods of, 173 Clark, In re, 178, 618 Clarke v. Clarke, 473, 757, 820 to sections.) Clarke v Scripps, 247 Clarke v. Smith, 518 Clarkson v. Pell, 467 Clarkson v. Stevens, 288, 293 Claussenius v. Claussenius, 323, 331 Clay V. Smallwood, 691 Clay V. Wood, 611, 684 Clayson's Will, 21 Clayton v. Aikin, 7/6 Clayton v. Drake, 552 Clayton v. Liverman, 67 Clayton v. Robards, 537 Cleghorn v. Scott, 466, 551 Clemens v. Heckscher, 595 Clemens v. Patterson, 325 Clement v. Hyde, 645 Clements v. McGinn, 342, 423 Clendening v. Clymer, 783 Gierke v. Cartwright, 85 Cleveland v. Cleveland, 608 Cleveland v. Spilman, 173, 179, 204, 561, 487 Cleveland's Estate, Duke of, 482, 602 CliiT's Trusts, 160, 341 Clift V. Moses, 702, 762, 764 Clifton V. Clifton, 97, 102 Clifton V. Murray, 117 Cline V. Scott, 802, 804 Cline, In re, 102, 105, 106, 333 Clingan v. Micheltree, 247, 255, 261, 279 Clinton v. McKeown, 278 Clough V. Clough. 323, 427 Clow V. Plummer, 356, 357 Clowes, In re, 483 Clyde V. Simpson, 752 Coakley v. Daniel, 462 Coane v. Harned, 759 Coapland v. Lake, 792 Coates V. Hughes, 296 Coates V. L. & N. Ry. Co., 692 Coats V. Johnson, 333 Cobb V. Hanford, 70, 315 Cobb's Estate, 341 Cochran v. Elwell, 691 Cochrane v. Schell, 507, 637, 638 Cochran v. Young, 325, 340 1006 TABLE OF CASES. (Keferences are to sections.) Cock V. Cooke, 59 Cockayne, Goods of, 276 Cockran's Will, 384 Coddington v. Jenner, 348, 434, 440, 442 Codman v. Kreli, 34 Codrington v. Lindsay, 726 Cody V. Bunn, 461, 473 Coe V. Kniffen, 244 Coffin V. Coffin, 218, 226 Coffin V. Otis, 268 Coffman v. Coffman, 46 Cogbill V. Cogbill, 254, 264 Cogdell V. Widow, Heirs, etc., 148 Coggeshall v. Home for Friendless Children, 153 Coggins V. Flythe, 545 Coghill V. ivennedy, 118, 120, 122, 125, 126, 128, 129, 400, 414, 423, 425, 429 Coghlan v. Dana, 812 Cohen's Will, 183 Coit V. Comstock, 640 Coit V. Patchen, 105 Coke V, French, 344 Colby V. Doty, 594 Colcord V. Conroy, 284 Cole V. Cole, 577 Cole V. Fitzgerald, 492 Coleman v. Camp, 462 Coleman Bush Investment Co. v. Figg, 536 Coleman v. Robertson, 96, 97 Coleman v. Sumrall, 808 Coletaan's Estate, 6G, 125, 331, 409, 428 Coleman, Goods of, 252 Coleman's Will, 388 Coles V. Avers, 676 Coles V. Coles, 483, 486 Coles V. Terrell, 731 Collagan v. Burns, 244, 450 College V. McKinstry, 190 Collett V. Cook, 723 Collier v. Collier, 269, 462, 466, 491, 516, 734 Collier v. Grimesey, 491, 668, 692. 700 Collier's Will, 659 Collins V. Burge, 681 Collins V. Collins, 330, 436, 466, 566, 574, 674, 733, 744 Collins V. Elstone, 267 Collins V. Eead, 755 Collins V. Smith, 145 Collins V. Thompson, 594 Collins V. Wickwire, 466, 576 Collins V. Williams, 5/ 9, 580 Collins, Goods of, 187 Collyer v. Collyer, 437 CoUup V. Smith, 278 Colston V. Bishop, 466 Colt V. Hubbard, 659 Colton V. Burkelraan, 691 Colton V. Colton, 2, 461, 612 Columbia Ave. etc. Co. v. Lewis, 691 Col vert V. Wood, 720 Colvin V. Warford, 273. 277 Coltsman v. Coltsman, 549 Comassi's Estate, 284, 290 Combs V. Jolly, 44, 218, 227 Comb's Appeal, 191. 194 Comer v. Comer, 45, 49, 56 Comly's Estate, 515, 570, 618 Commonwealth v. McCarthy, 370 Commonwealth v. Thomas, 323 Commonwealth v. Trefethen, 437 Compton V. JMitton, 203, 223, 210, 226, 219 Compton V. Pierson, 93 Comstock V. Society, 382, 423 Conant v. Bassett, 668 Conant v. Palmer, 470 Conboy v. Jennings, 186 Condeli v. Glover, 786 Condit V. De Hart, 690 Conger v. Lowe, 684 Congregational Society v. Hale. 36 Congregational, etc. Missionary So- ciety V. Van Arsdall, 649 Congreve v. Palmer, 554 Conklln V. Davis, 556. 643. 647 Connelly v. Beal, 96, 257, 329, 368 Connelly v. Sullivan, 327 Connor v. Brashear, 241 TABLE OF CASES. 1007 (References are to sections.) Conoly V. Gayle, 190 Conover v. Fisher, 613 Conrad v. Douglass, 49 Conrad v. Long, 675, 681 Conron v. Conron, 758 Contine v. Brown, 575 Convay's Estate, 537 Converse v. Converse, 96 Converse v. Starr, 315, 323, 348 Converse v. Wals, 294 Convey's Will, 203, 227 Conway v. Ewald, 378 Conway v. Vizzard, 132 Conway's Will, 164, 221 Cooch v. Cooch, 331, 346 Cook V. Adams, 137 Cook V. Bucklin, 595 Cook V. Cook, 689 Cook V. Couch, 710, 712 Cook V. Dyer, 576 Cook V. Hayward, 668 Cook V. Hohnes, 462 Cook V. Lambert, 161 Cook V. Lanning, 476 Cook V. McDowell, 668 Cook V. Winchester, 213 Cooke V. Cooke, 240 Cooke V. Fidelity Trust, etc. Com- pany, 713 Coombs, Goods of, 187 Coomes v. Clements, 137 Coonrod v. Coonrod, 470, 752 Coop v. Coop, 55 Cooper V. Brockett, 222, 254, 431, 432 Cooper V. Cooper, 473, 551,, 971, 711, 726, 729 Cooper V. Haines, 698 Cooper V. Pogue, 240, 571 Cooper v. Remsen, 681 Cooper v. Wyatt, 685 Cooper's Estate, 278, 607, 629 Cooper, Goods of, 61 Coots V. Yewell, 466 Coover's Appeal, 737 Cope V. Cope, 48 Cope V. Farmer, 790 Copehart v. Burrus, 497 Copeland v. Copeland, 116, 554. Corballis v. Corballis, 774 Corbitt ,v. Corbitt, 515 , Corbley v. Patterson, 516 Corey v. Corey, 576 Corey v. Springer, 594 Corker v. Corker, 281, 283, 286, 285 Corley v, McElmeel, 312, 340, 343 Corley v. Wayne Co. Prob. Judge, 312, 321, 323 Cornelison v. Browning, 28 Cornelius v. Malone, 332 Cornelius' Will, 178, 179, 209 Cornell v. Lovett, 681 Cornwall v. Falls City Bank, 676 Corn well v. Isham, 1C4 Corry v. Lamb, 713 Corse V. Chapman, 637 Corwine v. Corwine, 755 Cory V. Lentner, 783 Cosl>ey V. Lee, 515 Cosgrove v. Cosgrove, 528 Cost's Succession, 765, 773 Cote v. Van Bonnhorst, 567 Cotheal v. Cotheal, 284, 287 Getting v. De Sartiges, 39, 698 Cottman v. Grace, 610 Cotton V. Cotton, 533 Cottrell's Estate, 73 Cottrell, In re, 223 Couch V. Eastham, 816 Couch V. Gentry, 23, 94, 97, 385 Conchman v. Conchman, 326 Coudert v. Coudert, 287 Coughlin V. Poulson, 395 Coulson V. Alpaugh, 59, 581, 610, 611 Counts V. Wilson, 335, 439 Courter v. Stagg, 681 Cousens v. Advent Church of Bidde ford, 315, 322 Cousino v. Covisino, 570 Covar v. Cantelon, 597 Cover V. Stem, 55 Covert V. Sebcrn, 4)0, 487 Coward, Goods of, 89 Cowen V. Adams, 786, 787 1008 TABLE OF CASES. (References are to sections.) Cowherd v. Kitchen, 759 Cowing V. Dodge, 564 Cowles V. Cowies, 547 Cowles V. Henry, 599 Cowley V. Knapp, 676 Uox V. Cox, 77, 323 Cox V. Handy, 461, 656, 658, 676 Cox V. Lumber Co., 361, 362 Cox V. Rogers, 727 Cox V. Von Ahlenfeldt, 139 Cox V. Wills, 59, 605, 612 Cox's Estate, 321, 389, 397, 466 Coxen V. Rowland, 698 Coyte, In re, 252 Cozzens v. Jamison, 278, 279 Cozzen's Will, 180 Craft's Estate, 284, 340 Craig V. Beatty, 341 Craig V. Conover, 722 Craig V. Leslie, 150 Craig V. Southard, 96, 330, 368, 382, 383, 390, 400 Craighead v. Given, 507 Crain v. Wright, 561 Craine v. Edwards, 341 Cranch v. Davis, 796 Crandall's Appeal, 366, 385, 426 Crandell v. Barker, 31 Crane v. BoUes, 618, 668, 674, 693, 701 Crane v. Doty, 467 Crane v. Reeder, 150 Crane's Will, 25, 314, 611 Craven v. Winter, 52 Cravens v. Faulconer, 203, 205, 216 Craw^ford v. Forest Oil Co., 567, 570 Crawford v. INIcCartliy, 754, 768 Crawford v. Wearn, 565 Crawford v. Thomas, 344 r-awford, In re, 314 Crawford's Will, 221 Crawshay, In re, 684, 691 Cray v. Herder. 802 Creesy v. Wills, 766 Cremorne v. Antrobus. 492 Crenshaw v. Xohnson, 329, 333, 366, 425 Crerar v. Williams, 461, 619, 640, 641, 646, 700, 744, 808, 809 Cresap v. Cresap, 461, 576, 619 Cressey v. Wallace, 624 Cressinger v. Welch, 144 Cressler's Estate, 575, 613 Creswell v. Creswell, 194 Creveling v. Jones, 473, 799 Crew v. Dickson, 576 Crew V. Pratt, 601, 636 Cribben v. Cribben, 729 Crider v. Shelby, 54 Crippen v. Dexter, 319, 324, 339 Crisp V. Crisp, 658 Crist V. Schank, 664 Crocker v. Balch, 327, 344 Crocker v. Chase, 400 Crocker v. Smith, 53 Crockett v. Davis, 333, 389 Crockett v. Robinson, 564 Croft V. Croft, 196 Croft, In re, 691 Crofut V. Layton, 70, 72, 77 Crolly V, Clark, 28 Cronan v. Holland, 802 Groom v. Herring, 515 Crook V. Brooking, 524 Cropley v. Cooper, 659, 663 Crosby v. Mason, 471 Crosland v. Murdock, 312 Cross V. Kennington, 750, 755 Cross V. U. S. Trust Co., 35 Crossett v. Clements, 751 Crossman v. Crossman, 269, 432, 433 Crosson v. Dwyer, 523, 806 Crow V. Crow, 554 Crowell V. Kirk, 392 Crowninsliield v. Crowninshield, 382 Crowley v. Crowley, 203 Crowley v. Hicks, 692 Croxall's Estate, 647 Crozier v. Bray, 269, 463, 465, 581 Crozier v. Cimdall, 550, 563, 594 Crudup V. Holding, 689 Cruikshank v. Home for the Friend- less, 507, 744 Cruikshank v. ParKer, 689 TABLE OF CASES. 1009 (References are to sections.) Crum V. Sa\vyer, 281, 284 dumb, In re, 47 Cruse V. Axtell, 643 Crusoe v. Butler* 31 Crutcher v. Crutcher, 446 Cudney v. Cudney, 423 Culley V. Doe, 144, 148 Culp V. Culp, 333 Culp V. Lee, 545, 554 Cumberland /. Cardington, 706 Cummings v. Cummin'gs, 555, 607 Cummings v. Daniei, 137 Cummings v. Plummer, 523 Cummings v. Stearns, 551, 657 Cumming's Estate, 497 Cummins v. Cummins, 52, 312, 313, 331 Cundiff V. Seaton, 485 Cunningham v. Cunningham, 213, 749. 808 Cunningham v. Pariver, 673, 704 Cunningham v. Simpson, 719 Cunningham v. Tulej^ 341 Cunningham's Estate, 137, 710, 720, 724, 727, 737 Cunningham, Goods of, 215 Cunningham, In re, 217 Cuno, In re, 61, 696 Curd V. Field, 752 Cureton v. Taylor, 190, 341 Curling v. Curling, 645 Cur ran v. Gieen, 607, 803 Curre v. Bowyer, 278 Currell v. Villars, 357 Currie v. Currie, 382 C'nrrie v. Kimberley, 774 Curtis V. Underwood, 319 Curry v. Pile, 799 Cushing V. Alyivin, 142 Cushing V. Burrell, 470 Cushing V. Spakl.ng, 684 Cushing's Will, 007 Cushman v. Horton, 514 Cuthbertson's Appeal, 414 • Cutler V. Cutler. 2.3, 132 Cutter V. Butler, 89. 92, 284 Cutting V. Cutting, 577 Dado's Estate, 802 Dailey v. New Haven, 644 Davidson v. Cook, 749 Dale V. Dale, 406, 409, 414 Dale V. White, 467 Dale's Appeal, 394, 409, 413, 424 Dale, In re, 226 Dalrymple v. Gamble, 141, 142 Dal rym pie's Estate, 329 Dal ton V. Wicklitle, 241 Daly V. Daly. 333, 397 Daman v. Bibler, 406 Damman v. Damman, 249, 254 Dammert v. Osborn, 31, 35, 643 Damon v. Damon, CO, 64 Dan V. Brown, 244 Dana v. Murray, 026, 632, 691 Dancer v. Crabb, 276 Danforth v. Talbot, 659 Daniel v. Daniel, 98, 676 Daniel v. Fain, 643 Daniel v. Hill, 49, 53, 382, 414 Daniel v. Veal, 53 Daniels v. Pratt, 136 Darby v. Mayer, 312 Darcy v. Kelly, 643 Darden v. Harrill, 742 Darling v. Blanchard, 656 Darling, In re, 643, 647 Darlington v. Darlington, 488. 561 Darlington. Earl of. v. Pulteny. 67 Darlington's Estate, 414 Darnell v. Buzby, 223 D'Arusnient v. Jones. 341 Dascomb v. Marston, 646 Daugherty v. Rodgers, 818 Dautevivo's Succession, 242 Davenhill v. Fletcher, 776 Davenport v. Hassel, 521 Davenport v. Kirkland. 401. 402. 014, 026, 703 Davenport v. Savgeant. 758 Daveson. In re, 629. 032 Davidson v. Coon. 747. 755 Davidson v. Davidson. 75, 79, 723 1010 TABLE OF CASES. (References are to sections.) Davidson v. Davis, 723 Davie v. Davie, 315 Davie v. VVynn, 551 Davies v. Davies, 449 Davies, In re, 130, 500 D'Avignon's Will, 208 Davis V. Angel, 675 Davis V. Badlam, 722 Davis V. Barnstable, 645 Davis V. Boggs, 470, 471, 610 Davis V. Calvert, 385, 411 Davis V. Close, V80 Davis V. Cofl'man, 815 Davis V. Corwine, 466 Davis v. Crandell, 803 Davis v. Davis, 196, 467, 506, 582, 731 Davis V. Elliott, 379 Davis V. Fogle, 290 Davis V. Hardin, 673 Davis V. Hoover, 470 Davis V. Hutchings, 506, 746, 807, 808 Davis v. Jones, 73 Davis V. King, 290 Davis V. Kirksey, 340, 576, 695 Davis V. Mailey, 611 Davis V. Richardson, 577 Davis V. Semmes, 219 Davis V. Sigourney, 434, 449, 453 Davis V. Stambiugh, 244 Davis V. Strange, 127 Davis V. Williams, 561 Davis' Will, 66, 67, 68, 109, 240, 314, 531 Davison v. Gibson, 41 Davison v. Rake, 803 Daw?on v. Dawson, 269 Dawson v. Schaefer, 550, 555, 659 Dawson v. Smith, 273, 437 Dawson, In re, 629 Day V. Day, 47, 270, 273, 453 Day V. Floyd, 341 Day, ex parte, 66, 67 Dayger, In re, 183 Dayman v. Dayman, 374 Dayton v. Phillips, 632 Deadrick v. Armour, 466, 576 Dean v. Dean, 227, 383, 578 Dean v. Lowenstein, 692, 750 Dean v. Mumford, 511, 622, 636, 787, 808 Dean v. Ntgley, 132, 411 Dean v. Rounds, 765, 767 Dean v. W^inton, 507, 663 De Bajligethy v. Johnson, 53 De Beauvoir v. De Beauvoir, 515 DeCamp v. Dobbins, 36, 153, 644 Deck V. Deck, 428 Decker v. Decker, 461. 462, 487, 497, 816 Deegan v. Wade, 637 Defoe V. Defoe, 127, 128, 410 Defreese v. Lake, 565, 570, 720, 820 De Geofroy v. Riggs, 150 Degman v. Degman, 576 De Graff v. Went, 151 De Grandmont v. Societe, 139 D?haven v. Sherman, 599 Deiter v. Shafter, 544 Delafield v. Parish, 97, 98, 101, 255, 277, 382, 383, 414 Del Escobal's Succession, 241 Delgado v. Gonzales, 415 Delmar's Charitable Trust, 619 Delany v. McCormack, 547, 739 De La Rue, In re, 314 De La Saussaye, Goods of, 269. 314 De las Fuentes v. McDonald, 315 De Laveaga's Estate, 268, 269, 674, 800 Dempsey v. Lawson, 262, 268 Dempsey v. Taylor, 475 Den, Thomas v. Ayers, 312 Den V. Drew, 476 Den V. Johnson, 47 Den V. Mitton. 228 Den V. Pa;yme, 477 Den V. Schenck, 561 Den V. Taylor, 473 Deneken, In re, 802 Denfield, In re, 604, 610, 615. 681, 820 Denlinger's Estate, 550 Denn v. Bagshaw, 658 TABLE OF CASES. 1011 (References are to sections.) Denne v. Wood, 196 Denning v. Butcher, 85, 127, 362, 388, 390, 406, 416, 421, 426, 427 D.nnis v. Holsapple, 48, 162, 169 Dennis v. Weekes, 400, 423 Dennis' Estate, 755 Dennis, In re, 307 Denson v. Beazley, 107 Denton v. Franklin, 203 Denton, In re, 676 Denny v. Kettle, 656 Denny v. Pinney, 226 Dennyssen v. Mostert, 69 De Silva v. Supreme Council, 136 De Silver's Estate, 466, 467 Despard v. Churchill, 33, 35 De Peyster v. Machiel, 684 Dcquindre v. Williams, 341 Derby v. Derby, 767, 768 Derickson v. Garden, 595, 675 Derinzy v. Turner, 185 Derse v. Derse, 576 Deslonde v. Darrington, 318 De Treville v. Elis, 591 Deupree v. Deupree, 223 De Vaughn v. De Vaughn, 564 De Vaughn v. Hutchinson, 28, 565 De Vaughn v. McLeroy, 802 Deveeraon v. Shaw, 806 Devlin v. Commonwealth. 341 Devocmon v. Kuykendall, 793 Dew V. Clark, 94, 104, 106, 107 Dew V. Kuehn, 562 Dew V. Reid, 328, 329 Dewey v. Dewey, 205, 206, 210, 216 Dewey v. Morgan, 461, 476, 561 Dewey's Estate, 602, 607 De Witt V. Yates, 799 De Wolf V. Middleton, 29, 520, 547, 548. 549, .594 Dexter v. Evans, 612 Dexter v. Inches, 526 Dezendorf v. Humphreys, 624 Dias V. De Livera, 69 Dichie v. Carter, 227, 423 Dicke V. Wagner, 322, 340, 511 Dicken v. McKinley, 74, 75 DicVerman v. Eddinger, 748 Dickey v. Vann, 28, 337, 357 Dickinson v. Dickinson, 47, 160, 200, 390, 481 Dickinson v. Henderson, 602 Dickinson v. Overton, 799 Dickinson v. Swatnian, 272, 276 Dickinson v. United States, 154 Dickison v. Dickison, 525, 544 Dickison v. Ogdcn, 622, 662 Dickson v. Field, 761 Dietlenbach v. Grece, 112, 415 Diefendorf v. Diefendorf, 52 Diehl V. Rogers, 176, 199, 360 Diez's Will, 66, 67. 68, 170 Dildine v. Dildine, 543 Dill V. Dill, 470 Dill V. Wisner, 806 Dillard v. Dillard, 496, 577 Dillard v. Dillard's Ex'rs, 89, 93 Dillon V. Faloon, 698 Dills V. Adams, 501 Dilworthy v. Gusky, 562 Dimmiek v. Patterson, 663 Dixon V. Bentley, 003 Doane v. Hadlock, 276, 299, .301, 302 Doane v. Mercantile Trust Co., 317 Dobie V. Armstrong, 105, 132 Dockvun V. Robison, 234, 236 Dodge V. Finlay, 224 Dodge V. Gallatin, 142, 148, 489 Dodge V. Williams, 645 Dodge's Appeal, 513 Dodson V. Sevans, 575, 580 Doe V. Barford, 282 Doe V. Considine. 467 Doe V. Edlin, 283 Doe V. Evans, 276, 277 Doe V. Frost. 549 Doe V. Harris,, 2'^'^ Doe V. Palmer, 431, 433 Doe V. PaUison, 170 Doe V. Pearson, 684 Doe V. Perryn, 548 Doe V. Pratt, 549 Doe V. Smith, 564 Doe V. Staples, 284 Doebler's Appeal, 473, 564 Doe d. Davis v. Davis. 219 1012 TABLE OF CASES. (References are to sections.) Doe d. Perkes v. Perkes, 261 Doe d. Kead v. Harris. 247 Doe d. Wright v. Manifold, 211 Doe d. York v. Walker, 142 Doehrel v. Hilhner, 151 Doherty v. Gilmore, 127, 132, 405, 409, 423, 426 Doherty v. O'Callaghan, 388 Dobson, In re, 63 Donier v. Seeds, 277 Domestic Missionary Society v. Eells, 312, 349 Domestic, etc., Missionary Society V. Gaither, 649 Dominick v. Michael, 702 Donald v. Nesbit, 53 Donald v. Unger, 234 Donaldson, Goods of, 233 Donegan v. Wade, 683 Donges's Estate, 293, 813 Donley v. Shields, 576 Donnelly v. Broughton, 370 Donohoo V. Lea, 278 Donohue v. Donohue, 561 Doran v. Piper, 696 Dore V. Torr, 547 Dorin v. Dorin, 522 Dorion v. Dorion, 140 Dorr V. Johnson, 663 Dorries's Succession, 241 Douce, Goods of, 173 Dougherty v. Dougherty, 61, 62 Dougherty v. Moore, 56 Doughten v. Vandever, 461, 487, 538, 645, 647 Douglass V. Douglass, 769 Douglass V. James, 524 Douglass V. Miller, 313 Douglass V. Sharp, 576 Douglass's Estate, 98, 127, 129, 331, 378, 416 Dower v. Church, 325 Do^\^les v. Long, 572 Downie's Will, 211. 213, 227, 344 Downing v. Bain, 467 Downiing v. .Johnson, 576 DoAvning v. Marshall, 643 Dowson V. Gaskoin, 406 Doyle V. Doyle, 137 Doyle V. Whalen, 655 Drake v. Drake, 526, 694 Drake v. Lanning, 72, 73 Drake v. Paige, 659 Drake v. Wild, 723 Drake's Appeal, 129, 419 Draper v. Morris, 729, 730 Dravo v. Seebolt, 611 Drennan v. Douglass, 72 Drennan's Appeal, 596 Drew V. Drew, 473 Drew V. Wakefield, 482, 529, 744 Drew, In re, 511 Drusadoruv. Wilde, 561 Drury v. Connell, 189, 210, 211 Dryden v. Owing, 767 Duclos V. Benner, 579 Dudgeon, In re, 619 Dudley v. Pigg, 731 Dudley v. Wardner, 434 Dudley v. Weinhart, 61 Dufar V. Croft, 117 Duff V. Duff, 321 Duffie V. Corridon, 215, 222 Duffield V. Morris, 94 Duffield V. Pike, 700, 773, 791 Duffield V. Robeson, 104 Dufour V. Pereira, 72 Dugan V. Northcutt. 319. 325. 331, 339 Duggan V. Duggan, 666 Duggan V. Slocum, 642, 643, 646 Duggins, Goods of, 220 Dukes V. Faulk, 554, 557, 675 Dulany v. Middleton, 473, 540, 659, 744. 746 Bull's Estate, 466 Duniont v. Dumont, 126 Dunbar v. Woodcock, 596 Duncan v. Duncan, 800 Duncan v. Franklin To^vnship, 776 Duncan v. Philips, 470, 473, 681 Duncan v. Stewart, 341 Duncan v. Wallace, 747, 750. 755 Dunford v. Jackson. 485, 494. 770 Dunham v. Averill. 276, 277, 819 Dunham v. Marsh, 477, 807 TABLE OF CASES. 1013 f References are to sections.) Dunham's Appeal, 108 Dunlap V. i*'aiit, 594 Dunlap V. Robinson, 156, 382, 411 Duiilap's Appeal, 467 Dunlop V. Dunlop, 175, 307 Dunlop V. Watts, 180 Dunn V. Bank, 53 Dunn V. Cory, 522, 524, 546 Dunn V. Renick, 773, 775 Dunn's Appeal, 91 Dunning v. Burden, 572 Dupont V. Du Bose, 474, 566 Dupuy V. Esnard, 241 Durant v. Smith, 59, 611 Durants v. Ashmore, 437, 449 Durbin v. Redman, 513 Durfee v. MacNeil, 513, 584 Durfee v. Pomeroy, 637 Durfee, In re, 676 Durfour v. Pereira, 69 Durham v. Northern, 162, 163, 311, Durham v. Smith, 94, 96, 97, 382 Durling v. Loveland, 414 Duryea v. Duryea, 281 Dutch Church v. Snock, 575 Dutton V. Pugh, 546, 666, 700 Duvale v. Duvale, 70, 72, 79 Duvall's Estate, 773 Dwight V. Eastman, 572 Dwyer v. Mapother, 608 Dye V. Beaver Creek Church, 576, 643, 645 Dye V. Dye, 53 Dye V. Young, 423, 401 Dyer v. Crawford, 541 Dyer v. Dyer, 218 E Eager v. Whitney, 069 Eames v. Protestant Episcopal Church. 771 Earhart, In re, 315 Earhart's Succession, 28 Earl V. Rowe, 561 Early v Benbow, 799 Earnshaw v. Daly, 631 Eastis V. Montgomery, 127, 131, 133, 382, 414, 426, 473, 684 Easton v. Huott, 151 Easton's Estate, 229 Eaton V. Watts, 611 Eberhardt v. Parolin, 59, 472, 474, 611 Ebey v. Adams, 700, 709 Eby's Appeal, 515 Eckersley v. Piatt, 259 Eckert v. Flowry, 130 Eckert's Estate, 668 Eckford v. Eckford, 460, 487, 488, 809, 810, 819 Eckstein v. Radl, 138 Eddings v. Long, 515 Edelen v. Hardy, 210 Edens v. Miller, 488 Edgar v. Edgar, 611, 806 Edge V. Edge, 114 Edgerly v. Barker, 467, 471, 551, 636 Edson V. Parsons, 65, 66, 70, 72, 81 Edson's Will, 413 Edwards v. Davis, 331, 382 Edwards v. Fincham, 117 Edwards v. Rainier, 462, 494, 799 Edwards v. Smith, 57 Edward's Appeal, 283 Edward's Estate, 638 Edwards, In re, 594 Egan, In re, 496 Egbers v. Egbert, 333, 344, 369, 382, 401 Egbert v. Egbert, 382 Eggers V. Eggers, 94 Eggleston v. Speke, 275 Eihrman v. Haskins. 820 Eichelberger's Estate, 595, 599, 710, 787, 803, 804 Einbecker v. Einbecker, 607 Eisenbrey's Estate, 788, 794 Eisiminger v. Eisiminger, 482 Eisner's Estate, 602 Ela V. Edwards, 161, 202. 205, 223 Elcessor v. Elcessor, 390 Elcock's Will. 21 Elder v. Elder. 461 1014 TABLE OF CASES. (References are to sections.) Eldred v. Shaw, 572, 605, 623 Eldridge v. Eldridge, 517, 669 Eliot V. Carter, 431 Eliot V. Eliot, 317 Elkinton V. Brick, 218, 226, 382 Elkinton v. Elkinton, 613 Eller V. Lillard, 787, 789 Ellerson v. Westcott, 687 Ellicott V. Ellicott, 675 Ellington v. Dillard, 234, 236 Elliot V. Hancock, 750 Elliott V. Brent, 196 Elliott V. Tapp, 816 Elliott's Estate, 739 Elliott, In re, 684 Ellis V. Darden, 281, 284 Ellis V. Davis. 315 Ellis V. Dick, 269 Ellis V. Ellis, 290, 332, 333, 334 Ellis V. Smith, 203, 216 Ellis V. Throckmorton, 585 Ellis V. Woods, 461 Elmore v. Mustin, 52, 53 Elmsley v. Young, 547 Elstner v. Fife, 760 Elwell V. Convention, 317, 366, 538, 539 Elwes V. Causton, 774 Ely's Estate, 384 Elyton Land Co. v. MeElrath, 575 Embury v. Sheldon, 676 Emeric v. Alvarado, 238 Emerson v. Boville, 286 Emerson, Goods of, 172 Emery v; Babcock, /2 Emery v. Batchelder, 775 Emery v. Burbank, 40 Emery v. Darling, 72, 79 Emery v. Haven, 698, 820 Emery's Appeal, 284 Emory College, v. Shoemaker, 640 Emmert v. Hays, 92, 93, 487 Eneberg v. Carter, 467, 702 Endicott v. Endicott. 492 Engle's Estate, 600, 659, 676 English V. English, 724 Ennis v. Smith, 264 Entwistle v. Meikle, 96, 97, 333, 363, 394, 397, 402 Epps V. Dean, 278 Erhen v. Lorillard, 78 Erhrisman v. Sener, 684 Ernst V. Foster, 462, 463. 576, 817 Ernst V. Northern Bank, 659 Ernst V. Shinkle, 684 Errickson v. Fields, 100, 226 Er\vin v. Erwin, 678, 752, 753 Erwin v. Smith, 789, 820 Eschback v. Collins, 254, 264 Esman v. Esman, t05 Estep v. Armstrong, 702 Estep v. Morris, 191 Estes v. Bridgforth, 133, 363, 427 Esty v. Clark. 529 p]tohison V. Etchison, 209 Ethridge v. Bennett, 127, 383, 388. 390, 392, 393, 415 Etter V. Armstrong, 85 Eubank v. Smiley, 572 Eustis V. Parker. 194 Evans v. Anderson. 287, 289, 290. 295 Evans v. Arnold. 382 Evans v. FolKes, 57 i Evans v. Godbold, 471 Evans v. Hunter, 769 Evans v. King, 565 Evans v. Opperman, 461, 500 Evans v. Pierson, 713 Evans v. Price, 2 Evans v.. Smith, G6, 67, 68 Evans's Appeal, 150, 248, 249, 252. 571 Evan's Estate, 249, 517, 548 Evan's Will, 423 Evangelical Association's Appeal, 643 Evansville, etc. Co. v. Winsor, 28, 321, 323, 3.35, 357 Everett v. Croskrey, 570, 729. 737 Everhardt v. Everhardt, 173 Ewell V. Tidwell. 315 Ewing V. Barnes. 564, 684, 806 Ewing V. Richards, 75 TABLE OF CASES. 1015 (References are Ewing V. Standefer, 570 Ji,xton V. Hutchinson, 676 Eyer v. Beck, 461 Eynon, Goods of, 219 Eyre v. Golding, 803 Eyre v. Storer, 28 Eyres' Estate, 138 F Fa bens v. Fabens, 512, 515 Fahnestock v. Fahnestock, 691, 700 Fahnestock's Estate, 467, 470, 544, 676 Fahy v. Faliy, 806 Fairchild v. Bascomb, 392, 401 Fairchild v. Buchell, 526 Fairchild v. Crane, 593, 594 Fairchild v. Edson, 25, 59, 466, 610, 611, 619, 643 Fairchild v. Marshall, 713, 726 Fair's Estate, 802 Fallon V. Chidester, 295 Falcon v. Flannery, 691 Fallon's Will, 325 Fane, Ex parte, 89 Fargo V. Miller, 52i, 547 Fargo V. Squiers, 626, 636, 759, 763 Farish v. WajTnan, 577 Farley v. Farley, 223, 371 Farmer v. Farmer, 23, 104, 132, 333 Farmer v. Spell, 777 Farnsworth's Will, 97 Farnum v. Bascom, 776, 773, 775 Farnum v. Boyd, 110, 333, 414 Farnum v. Bryant, 726 Farnum's Estate, 506, 638, 787, 788 Farr v. Thompson, 411 Farrand v. Pettit, 636 Farrar v. Fallestine, 489 Farrar v. McCue, 692 Farrell v. Brennan, 392 Farrer v. St. Catherine's College, 468 Farrington v. Putnam, 153, 645 Fassler v. Schriber, 388 to sections.) Foster v. Smith, 562 Fatheree v. Lawrence, 223 Faulk V. Dashiell, 091 Faulkner v. The XNational Sailors' Home, 819 Faulstich's Estate, 544 Fay V. Sylvester, 549 Fayerweather v. Ritch 812 Fearson v. Dunlop, 605 Featherstone v. Robinson, 241 Feit V. Van Atta, 522 Fellows V. Allen, 252, 284 Fellows V. Miner, 647 Fenton v. Emblers, 74 Penn v. Death, 524 Fenner v. McCan, 345 Fenton's Will, 103, 115, 332, 334, 389, 390, 397, 402 Ferguson's Appeal, 737, 772, 773 Ferguson, In re, 512 Ferguson-Davie v. Ferguson-Davie, 46, 59 Ferer v. Pyne, 553 Ferry's Appeal, 473 Fesler v. Simpson, 162, 166 Festorazzi v. St. Joseph's Catholic Church of Mobile, 650 Fetherman's Estate, 618 Fetrow v. Krause, 795 Fetterman's Estate, 614 Fettiplace v. Gorges, 92 Feuchter v. Keyl, 319, 320, 337, 343 Ffinch V. Combe, 251, 254, 298, 299 Fickle V. Snepp, 166 Fidelity Trust Co.'s Appeal, 284 Field V. Drew Theological Semi- nary, 626, 640, 641, 645 Field V. Peckett, 492 Field V. Peoples, 661 Field's Appeal, 208 Fielden v. Ballanger, 787 Fields V. Bush, 573 Fields V. Fields. 555 Fife V. Miller, 800 Fifield v. Van Wyck, 320, 610, 619, 643, 683, 707, 819 Finch V. Finch, 346 1016 TABLE OF CASES. (References are to sections.) Finelite v. Sinnot, 484 Fink V. Eggleston, 698 Fink V. Leisman, 689 Finlay v. King, 461, 681 First Society of M. E. Church v. Clark, 640, 643 First National Bank v. De Pauw, 594, 676 Fischer's Case, 323 Fish, In re, 819 Fishback v. Joesting, 517 Fisher v. Banta, 700 Fisher v. Bassett, 341 Fisher v. Boyce, 331 Fisher v. Keithley, 779, 782, 784 Fisher v. Spence, 191, 192, 196, 197, 198 Fisher v. Wister, 562, 578, 580 Fisher, In re, 269, 277, 470, 599, 602 Fisher's Will, 315, 332 Fissel's Appeal, 554 Fisk V. Keene, 566 Fiske V. Fiske, 726 Fitch V. Brainerd, 90 Fitch's Estate, 405 Fitzhugh V. Townsend, 548, 665 Fitzpatrick v. Fitzpatrick, 816 Fitzsimmons v. Johnson, 31 Fitzsimmons v. Safe Deposit Co., 345 Flanagan v. Nash, 56 Flannery v. Hightower, 476, 819 Flannery's Will, 173 Flansburgh's Will, 102 Fleming v. Carr, 490, 498, 499 Fleming v. Ray, 578, 579 Flick V. Forest Oil Co., 676 Flickinger v. Saum, 561, 562 Flinn v. Owen, 216 Flint's Estate, 386, 412 Flintham v. Bradford, 273 Flood V. Pragott, 186, 205, 206, 227, 361 Flora V. Anderson, 522, 525 Florey v. Florey, 131 Flournoy v. Johnson, 528 Floyd V. Carow, 507, 508 Floyd V. Floyd, 130, 428 Floyd V. Herring. 312 Fluck V. Rea, 112 Flummerfelt v. Flummerfelt, 142. 489, 803 Fogarty v. Fogarty, 802 Fogle V. Church, 79, 82 Foley's Estate, 315 Folger V. Titcomb, 466 Folks V. Folks, 333, 418 I'oote V. Foote, 316 Forbes v. Darling, 291, 293, 575, 603, 613, 820 Forbes v. The Ft. Scott Board of Education, 655 Forbes, In' re, 47 Forbing v. Weber, 244, 257 Ford V. Ford, 29, 35, 97, 162, 167, 219, 259, 317, 461, 691, 705 Ford V. Krambeer, 802 Ford V. Ticknor, 690 Ford's Case, 199 Ford, In re, 547 Forman v. Woods, 676 Forney v. Ferrell, 424 Forney's Estate, 279 Forrest Oil Co. v. Crawford, 548 Forrest v. Porch, 515, 556, 665 Forsaith v. Clark, 223 Forse v. Hambley's Case, 284 Forster v. Winfield, 59, 612 Forsyth v, Forsyth, 674, 679, 698, 699 Forsythe v. Mintier, 473 Fortescue v. Hennah, 79 Fortune v. Buck, 197, 198 Fosdick V. Hempstead, 643 Foselman v. Elder, 58 Foster v. Dickerson, 362, 428, 400, 390, 389 Fosher v. Guilliams, 719, 729 Foster v. Hackett, 657 Foster v. Wick, 659 Foster's Appeal, 409, 437, 449 Fotheree v. Lawrence, 313 Fouche's Estate, 58, 186 Fourdin v. Gowdey, 87 Foveaux, In re, 653 Fowe's Estate, 102, 331 TABLE OF CASES. 1017 (References are Fowler v. Diihme, 676, 684 Fowler v. IngersoU, 626, 636 Fowler v. Stagner, 193, 217, 221 Fowlkes V. Wagoner, 684 Fox V. Fee, 327 Fox V. Fox, 614 Fox V. Gibbs, 643, 645, 647 Fox V. Martin, 127, 132, 133, 429 Fox V. Senter, 136, 500, 598 Fox's Will, 154 Fozer v. Jackson, 58 Frame v. Thormann, 315 France's Estate, 491, 561 Francis v. Grover, 249, 254 Francis v. Wilkinson, 96 Frank v. Unz, 573 Franke v. Auerbach, 691 Franke v. Sliiplcy, 97, 325 Franke, In re, 138 Frankes v. Weigand, 712, 723, 732 Franks v. Chapman, 221 Franklin v. Arnifield. 643 Franklin v. Franklin, 188, 193, 362, 540, 548 Frausen's Appeal, 281, 283 Eraser v. Boone, 470 Eraser v. Chene, 820 Eraser v. Jennison, 329 Eraser, In re, 314 Frazer v. St. Luke's Church, 610 Frazer v. United Presbyterian Church, 689, 700 Frazer, In re, 493 Frazier v. Boggs, 28, 142 Frazier v. Church, 25 Erear v. Williams, 276 Freeborn v. W^agner, 577 Frederick's Appeal, 53 Freeman v. Coft, 269 Freeman v. Easly, 385 Freeman y. Knight, 554, 559 Freemantle v. Banks, 783 Freme's Estate, 267, 798, 800 French v. Frazier, 341 French v. French, 63 Freud's Estate, 342 Frew V. Clarke, 53, 55, 57, 188 to sections.) Frick V. Frick, 141, 142, 482, 819, 820 irierson v. Beali, 157 Frierson v. Van Buren, 540 Erink v. Pond, 193 Fristoe v. Latham, 684 Frith, Goods of, 219 Fritz V. Turner, 174, 180, 405 Froelich v. Froelich Trading Co., 764 Frost V. Curtis, 542, 543 Frost V. Dingier, 127 Frost V. Tarr, 78 Frost V. Wheeler, 384 Frost, In re, 627, 632 Fry V. Morrison, 314, 723 Fry V. Shipley, 477 Fry's Estate, 800 Fry's Will, 223 Frye v. Jones, 133, 429 Fuchs V. Fuchs, 75 Fuentes v. Gaines, 230, 337 Eulbright v. Perry Co., 110, 111, 382 Fulkerson v. Chitty, 496 Fuller V. Fuller. 561, 562, 598, 614 Fuller V. Martin, 530 Fuller V. Wilbur, 571 Fuller's Estate, 279 Fuller, Goods of, 185 EuUer's Will, 643, 655 Fulton V. Andrew. 406 Funk V. Davis, 816 Fuqua's Succession, 230 Eurenes v. Eide, 361 Furenes v. Micelson, 151 Eurenes v. Severtson, 512, 514, 561 Furnish v. Rogers, 579 Furness v. Fox, 669 Fuss V. Fuss, 40 G Gable v. Daub, 142 Gable V. Rauch, 96, 130, 227, 330, 372, 375, 455 Gadd V. Stoner, 576, 696 1018 TABLE OF CASES. (References Gadtres v. Desportes, 572 Gaffield v. Plumber, 461, 695 Gafney v. Kenison, 647 Gage V. Gage, 53, 157, 450 Gage V. Wood, 491, 507 Gaines v. Chew, 340 Gaines v. Fuentes, 315, 340 Gaines v. Gaines, 255 Gaines v. Hennen, 156 Gaines's Succession, 31, 446 Gale V. Bennett, 524 Gall's Will, 281 Gallagher v. Crooks, 467 Gallagher v. Kinkeary, 213 Gallagher v. Rowan, 507, 707 Gallagher's Appeal, 737 Gait V. Provan, 102 Gambel v. Trippe, 619, 692 Gamble v. Butchee, 191, 198, 362 Gammell v. Ernst, 550, 551 Gammon v. The Gammon Theolog- ical Seminary, 689 Gantert, In re, 689 Garcelon's Estate, 326, 346 Garcia y Perea v. Barlea, 190, 494 Gardiner v. Gardiner, 125, 254, 276, 298, 299 Gardiner v. Slater, 669 Gardner v. Gardner, 442, 70, 81, 257, 449 Gardner v. Lambach, 94 Gardner v. Printup, 768 Gardner's Estate, 331, 342, 343, 348, 445 Gardner, In re, 684, 739 Garland v. Crow, 194 Garland v. Garland, 685 Garland v. Smiley, 669 Garland v. Smith, 323, 331, 423, 424, 426 Garlock v. Vandevort, 812 Garn v. Garn, 731 Garner v. Langsford, 237 Garrard v. Yeager, 70, 73 Garraud's Estate, 820 (Jarrett v. Dabney, 281, 284 Garrett v. Heflin, 219, 414, 417, 428 Garnett's Estate, 166 are to sections.) Garison v. Hill, 321, 521, 742 Garrison v. Little, 653 Garrity's Estate, 598 Garth v. Garth, 457, 461, 499, 501, 788 Garth v. Meyrick, 799 Gary v. James, 73, 79 Gascarth v. Lowther, 143 Gaskins v. Finks, 691 Gaskins v. Hunton, 562, 563, 574 Gass V. Gass, 107, 161, 307, 311 Gaston v. Brokaw, 604 Gaston's Estate, 48, 58, 59 Gates V. Pond, 604 Gaullagher v. Gaullagher, 72 Gawley's Estate, 66 Gay V. Dibble, 676 Gay V. Gay, 249, 252, 283 Gay V. Gillilan, 385, 405, 407 Gay V. Sanders, 33, 190, 340, 341 Geale, Goods of, 117 Geek, In re, 647 Gee V. Manchester, 676 Gee, In re, 314 Geere v. Stone, 87 Geery v. Skelding, 467, 55o Geiger v. Geiger, 727, 747 Gelbach v. Shively, 768 Gilbert v. Taylor, 804 Gelbke v. Gelbke, 267 General Convention v. Crocker, 111, 389 George v. Braddock, 633 George v. Green, 142 George v. Greer, 239 Georgia, etc. Co. v. Archer, 501, 562, 564 Gerhard's Estate, 597 Gerrish v. Gerrish, 162 Gerrish v. Hinman, 553 Gerrish v. Nason, 47, 414 Gibbon v. Gibbon, 142, 499 Gibbons v. Mahon, 602 Gibson v. Dooley, 24 Gibson v. Gibson, 392 Gibson v. McNeely, 526 Gibson v. Nelson, 222 Gibson v. Taylor, 504 TABLE OF CASES. 1019 (References are Giddings v. Giddings, 268, 2G9, 277, 279, 746 Giddings v. Seward, 770 Giddings v. Turgeon, 21, 198 Giflin V. Brooke, 254 Gifford V. Choate, 574 Gifford V. Dyer, 277, 287 Gilbert v. Gilbert, 125, 278 Gilbert v. Knox, 205, 218, 228, 225 Gilbert v. Taylor, 754 Gilbert's Estate, In re, 314 Gilbreath v. Winter, 767, 768, 780 Gilreath v. Gilreath, 409 Gilchrist v. Educational Trust, 619 Giles V. Giles, 255 Giles V, Little, 576, 681 Giles V. Warren, 161, 259 Gilkey v.- Paine, 602 Gill's Will, 192 Gillen v. Kimball, 496 Gillam v. Taylor, 647 Gillham v. Muston, 52, 53 Gillis V. Gillis, 219, 372, 374 Gillis V. Weller, 240 Gil man v. Morrill, 590 Gilman's Will, 185 Gilmer v. Daix, 562, 578 Gilmer v. Stone, 819 Gilmer's Estate, 307, 308 Gilmore v. Stone, 819 Gilmore's Estate, 504, 561, 741 Gilpin V. Williams, 466, 468, 565 Ginder v. Farnum, 161 Gindrat v. Western Ry., 663, 665 Gingrich v. Ginrich, 658, 659, 662 674, 678 Girard v. Philadelphia, 142 Gist V. Robinet, 482 Given v. Hilton, 466 Glancy v. Glancy, 182, 186, 338 Glass V. Dunn, 765, 770 Glass's Estate, 249 Glasscock v. Smither, 264 Glenn v. Belt, 742 Gloucester's Will, 70 Glover v. Condell, 473. 578, 580, 590, 592, 631, 700, 789 Glover v. Hayden, 427 to sections.) Glover v. Patten, 796 Glover v. Keid, 576 Glover v. Stillson, 575 Glover, In re, 172 Goad v. Montgomery, 692 Goble V. Grant, 109 Godbold V. Vance, 268 Godden v. Crowhurst, 685 Godfrey, Goods of, 249, 251 Godshalk v. Akey, 595, 596, 670 Godwin v. Watford, 598 Goebel v. Thieme, 693 Goebel v. Wolf, 467, 548, 669, 739 Goff V. Davenport, 52 Gold's Estate, 596, 695 Golder v. Chandler. 136, 141, 750, 767, 774, 775, 820 Golding V. Golding, 52 Goldthorpe v. Goldthorpc, 333 Goldthorpe's Estate, 362, 390, 400, 401, 423 Goldtree v. Thompson, 637, 670, 812 Golliver v. Mickett, 628 Gonzales v. Barton, 566 Good v. Fichthorn, 575, 611, 684 Good V. Good, 518 Goodale v. Mooney, 619 Goodbar v. Lidikey, 129, 400, 416, 417, 423 Goode V. Goode, 819 Goodell V. Pike, 321 Goodfellow V. Burehett, 7S5 Goodier v. Edmunds, 7C2 Goodman v. Winter, 28 Goodrich v. Lambert, 463 Goodrich v. Pearee, 561 Goodright v. Glazier, 271 Goodright v. Forester, 144 Goodright v. Harwood, 270 Goodright v. Haskins, 468 Goodright v. Searle. 549 Goodrum v. Goodrum. 727 Goodsell's Appeal, 281, 283, 284 Goodtitle v. Welford, 192 Goodtitle v. Otway, 278 Goodwin v. Coddington, 209, 470 Goodwin v. McDonald, 562 1020 TA.BLE OF CASES. (References are to sections.) Goon Gar v. Richardson, 150 Gordon v. Burris, 72, 128, 131, 329, 333, 335, 370, 405, 423, 424, 428, 819 Gordon v. Gordon, 693 Gordon v. Jackson, 739, 741 Gordon v. Old, 316, 321 Gordon v. Small, 515 Gordon v. Whitlock, 66, 264, 268, 269 Gordon's Will, 315, 376, 377 Gore V. Clark, 24, 620 Gore V. Howard, 326, 346 Gorgas's Estate, 744 Gorham v. Dodge, 326 Gorkow's Estate, 97, 112, 116, 292, 344, 345 Gormley's Estate, 664 Gosling, Goods of, 265 Gough V. Clifton Land Co., 656 Gould V. Safford, 233 Gourley v. Thompson, 466 Gould V. Winthrop, 765 Gourley v. Campbell, 707 Gourley v. Woodberry, 661 Grabill v. Bear, 176 Grace v. Association, 249 Grady v. Hughes, 323 Graham v. Botner, 576 Graham v. Burch, 247, 255, 279 Graham v. De Yampert, 516, 769 Graham v. Graham, 73, 78, 212, 213 Graham v. Grugan, 480 Graham v. Knowles, 480 Graham v. O'Fallon, 388, 434 Grand Fountain U. 0. T. R., etc., v. Wilson, 44, 56 Grand Prairie Seminaiy v. Morgan, 618, 643, 645, 653 Grange v. Ward, 340 Granger v. Granger, 565, 568 Grant v. Thompson, 390 Grantley v. Garthwaite, 249 Grass v. Sheeler, 597 Graves v. Mitchell, 717 Graves v. Spurr, 551 Gray v. Bailey, 783 Gray v. Case School, 803, 804 Gray v. Gray, 320 Gray v. Kauffman, 150 Gray v. McReynolds, 346 Gray v. Sherman, 269, 462 Gray v. West, 751 Gray's Estate, 25, 507, 508, 509, 535, 744 Graybeal v. Gardiner, 333, 382 Graydon v. Graydon, 681 Grayson v. Atkinson, 216, 219 Greaves v. Price, 269 Green v. Green, 210, 329, 330, 394, 507, 669 Green's Appeal, 417 Green's Estate, 574 Green's Will, 429 Green v. Alden, 30, 692 Green v. Blackwell, 645 • Green v. Broyles, 70 Green v. Grain, 216 Green v. Elvins, 638 Green v. Hewitt, 576, 661 Green v. Hogan, 651 Green v. Orgain, 76, 78 Green v. Shipworth, 236 Green v. Tribe, 269 Greene v. Greene, 96, 102, 397, 610 Greene v. Kirkwood, 681 Greene v. Smith, 602, 696 Greenheld v. Morrison, 150 Greenhill v. Greenhill, 143 Greenland v. Waddell, 636 Greenough v. Cass, 473 Greenough v. Greenough, 21, 173, 176 Greenough v. Small, 702 Greenwood v. Cline, 414, 420 Greenwood v. Greenwood, 689 Greenwood, Goods of, 164, 254 Greer v. Greer, 97 Greer v. McCrackin, 244 Greffet v. Willman, 576 Gregor v. Kemp, 79 Gregory v. Gates, 21, 85, 89, 93. 257, 341 Gregory v. Smith, 528 Gresley v. Movisley, 148 Greves, Goods of, 166 TABLE OF CASES. 1021 (References are to sections.) Greville v. Bro\vne, 757 Grey v. Pearson, 459 Grey's Trusts, 522 Griffen v. Ulen, 520, 544 Griffin v. Griffin, 603. 691, 696 Griffin v. Pringle, 470 Griffith V. Dieftenderfer, 126, 414, 423 Griffith V. Frazier, 341 Griffith V. Marsh, 53 Griggs V. Veghte, 465, 601, 711, 806 Grimball v. Patton, 269 Grindem v. Grindem, 723 Grimes v. Shirk, 564 Grimm v. Tittman, 192, 194, 195, 196, 203, 205, 216, 227 Grimmer v. Friederieh, 546, 658 Grimke v. Grimke, 89 Groesbeck v. Groesbeek, 806 Gross V. Shuler, 700, 708 Gross V. Strominger, 596 Grossman's Estate, 236, 237 Grosvenor v. Fogg, 288 Grove v. Spiker, 127, 416 Grove's Estate, 462 Grove's Trusts, 608 Grover's Succession, 344 Groves v. Cox, 593 Groves v. Gulp, 484, 487, 819 Groves v. Musther, 532 Grubb V. Darlington, 161 Grubbs v. McDonald, 301, 382, 383 Grubbs v. Marshall, 216 Gryle v. Gryle, 173 Guaranty Trust Co. v. Maxwell, 28, 34, 702 Guernsey v. Guernsey, 522 Guery v. Vernon, 461 Guild V. Hull, 130 Guilfoil V. Arthur, 647 Guilfoyle's Will, 172, 173, 205 Guitar v. Gordon, 292 Gullan. Goods of, 252 GuUett V. Farley, 722 Gunn's Appeal, 427 Gupton V. Gupton. 75 Gurley v. Park, 116, 126, 364, 427 Guthrie v. Guthrie, 52 Guthrie v. Owen, 236, 264 Guthrie v. Price, 173 Guthrie's Appeal, 522, 564 Gwillim V. Gwillim, 372 Gwin V. Gwin, 108, 126, 128, 335, 374, 393, 410, 423 Gwin V. Wright, 234, 235, 237 Gyde, In re, 632, 640 H Haack v. Weiken, 710 Haas V. Atkinson, 541 Habergham v. Ridehalgh, 532 Habergham v. Vincent, 44, 166 Haby v. Fuos, 715, 721 Hackett v. Hackett, 269 Hackett v. Milnor. 693 Hackney v. Tracy, 631 Hadden v. Dandy, 643 Hadley v. Hadley, 457, 461, 462, 586, 616, 619, 689, 692 Hagan v. Piatt, 602 Haggerty v. Hockenberry, 661 Hahn v. Kelly, 341 Hainer v. Iowa Legion ot Honor, 136, 710, 714 Haines v. Haines, 79 Haines v. Hayden, 104, 105, 108. 118, 120, 128, 130, 394, 428 Hair v. Goldsmith, 710 Hairston v. Hairston, 450 Halbert v. De Boae, 340 Halcomb v. Wright, 582 Hale V. Audesley. 142, 489, 506 Hale V. Hale. 74, 280. 284. 691 Hale V. Hobson. 656. 657, 666 Hale V. Marsh, 695 Hale V. St. Paul, 759. 765 Haley v. Gatewood, 139. i42, 489, 504 Halford v. Halford. 64 Halfield v. Thorp. 197 Hall V. Allen. 349 Hall V. Bliss, 692 Hall V. Bragg, 52 ]022 TABLE OF CASES. (References are to sections.) Hall V. Bray, 279 Hall V. Burkham, 52 Hall V. Chaflee, 461 Hall v. Hall, 105, 106, 116, 133, 141, 146, 181, 203, 209, 319, 325, 337, 478, 526, 659 Hall V. Palmer, 577, 684 Hall V. Perry, 97, 98, 382, 386, 389, 392 Hall V. Smith, 545, 710, 713, 728, 738, 739, 773, 802 Hall V. Wiggin, 529, 666, 668 Hall V. Waterhouse, 92 Hallet, In re, 522 Halliday v. Strickler, 577. 684. 691 Hallowell v. Hallowell, 183, 223 Hallum V. Silliman, 691 Hallyburton v. Carson, 269 Halsey v. Convention of P. E. Church, 59, 611, 643, 644, 742, 743 Halsey v. Goddard, 630, 659 Halsey v. Paterson, 533 Ham V. Goodrich, )4. 78 Hambleton v. Yocum, 321 Hamilton-Brown Shoe Co. v. Whit- taker, 321 Hamilton v. Flinn, 21, 23, 142 Hamilton v. Hamilton, 115, 402 Hamilton v. Mills, 515 Hamilton v. Ritcher, 662 Hamilton v. Ritchie, 471 Hamilton v. Rodgers, 618, 656, 658 Hamilton v. Smith, 764 Hamilton's Estate, 277, 319, 324 Hamilton, In re, 59, 611, 653 Hamlin v. Fletcher, 210 Hamlin v. Mansfield, 614, 629, 632, 746 Hamlin v. U. S. Express Co., 581, 597 Hammel v. Palmer, 484, 488 Hammer's Estate, 770 Hammet v. Hammet, 771 Hammond v. Conkright, 691 Hammond v. Dike, 400 Hammond v. Hammond, 602, 771 Hampton v. Westcott, 97, 127 Hancock v. Lyon, 496 Hancock v. Titus, 659 Hand v. Marcy, 708 Handley v. Palmer, 31, 48, 645 Handley v. Wrightson, 529 Handy's Estate, 659, 664, 685 Hanes v. Munger, 678 Hannah v. Peake, 229 Hannigan v. Ingraham, 136 Hannon v. Honnihan, 150 Hansbrough v. Hooe, 782 Hanson v. Little Sisters of the Poor, 36, 643 Hapwood V. Hapwood, 783 Harbin v. Masterman, 642 Harbison v. James, 576 Ilarbster's Estate, 599 Hard v. Ashley, 269, 462, 798, 800 Hardenbergh v. Ray, 142, 489 Harder v. Harder, 74 Hardin v. Artebnrg, 550 Hardin v. Jamison, 356 Hardin v. Taylor, 361 Harding v. St. Lotiis Life Insurance Co., 624 Hardy v. Gage, 547 Hardy v. Merrill. 382, 388., 390 Hardy v. Sanborn. 696 Hardy's Estate, 614 Hargadine v. Pulte, 292 Hargreaves, In re, 628 Hargroves v. Redd, 21 Harkness v. Corming, 566, 569, 633 Harkness v. Harkey, 507 Harland v. Trigg, 528 Harley v. :Moon. 767, 774 Harley v. State, 150 Harlow, In re, 319 Harmon, In re, 698 Harney v. Donohtie. 150 Harp V. Parr, 85, 96, 127, 129. 161, 191, 196, 205, 333, 341, 364, 366, 367, 379, 381, 387, 394, 397, 400, 417, 423 Harp V. Wallin, 691, 696 Harper v. Baird, 563 Harraden v. Larrabee, 515, 522 Harris v. Alderson. 659 TABLE OF CASES. 1023 (References are to sections.) Harris v. Berry, 551 Harris v. Dodge, 765, 766 Harris v. Dyer, 488, 562, 676 Harris v. Harris, 348, 352, 434, 438, 440, 441, 442, 443, 468, 688, 745 Harris v. Knight, 437 Harris v. McLaren, 466 Harris v. iNewton, 521 Harris v. Pue, 159 Harris v. Vanderveer, 382 Harris v. Wright, 678, 684 Harris, Goods of, 183, 248, 249 Harris, In re, 249, 252, 314 Harries, In re, 114: Harring v. Allen, 437 Harrington v. Stees, 234, 237 Harrison v. Bishop, 96, 115, 384, 402 Harrison v. Brophy, 650 Harrison v. Elvin, 219 Harrison v. Foote, 570, 684 Harrison v. Harrison, 219 Harrison v. Moore, 88, 659, 669 Harrison v. Nixon, 31 Harrison v. Rowan, 47, 312 Harrison v. Rowley, 638 Harrison v.Stanton, 344 Harrison v. Weatherby, 28, 466 Harrison's Appeal, 131 Harrison, In re, 156, 525 Harrison's Will, 382, 400, 409 Harshaw v. Harshavv, 781 Harshbarger v. Carroll, 52 Hart V. Allen, 623 Hart V. Goldsmith, 528 Hart V. Hart, 70, 283, 290 Hart V. Leete, 624 Hart V. Stoyer, 503, 562 Hart V. Thompson. 243 Hart V. West, 801 Hart V. White, 471, 561 Hartman v. Strickler, 408, 409 Hartson v. Elder, 22, 651 Hartwell v. Lively. 273 Hartwell v. McMaster, 173 - Hartwell v. Tefft, 526 Hartwig v. Sohiefer. 136, 715, 819 Harvard v. Davis, 271, 304 Harvard College v. Balch, 145, 698 Harvard College v. Weld, 091 Harvey v. Chouteau, 307, 311 Harvey v. Miller, 802 Harvey v. Sullens, 102 Harvey v. Van Cott, 136 Harvey's Estate, 331 Harvey, In re, 551 Hascall v. King, 630 Haslewood v. Green, 774 Hassam v. Hazen, 698 Hassel v. Hassel, 755, 757 Hastings v. Clifford, 776 Hastings v. Rider, 388, 390 Hatch v. Bassett, 491 Hatch v. Fergiison, 468, 487, 814, 820 Hatch V. Hatch, 630 Hatch's Estate, 712 Hatchett v. Hatchett, 691 Hatchett v. Henderson Trust Co., 676 Hathaway, In re, 329 Hathaway's Will, 320 Hathorn v. King, 116 Hattersley v. Bissett, 717 Hatton, Goods of, 190 Hauenstein v. Lynham, 150 Haus v. Palmer, 238 Havard v. Davis, 306 Haven v. Hilliard, 191, 194 Hawes v. Foote, 806 Hawes v. Humphrey, 101, 194, 278 Hawes v. Nicholas, 44, 273 Hawes v. Warner, 765 Hawke v. Chicago & W. I. Ry. Co., 291, 292, 293, 817 Hawke v. Enyart, 307, 308, 679, 681 Hawkins v. Garland, 819 Hawkins v. Grimes. 382 Hawkins v. Hawkins, 198 Hawkins v. Kemp, 91 Hawkins v. Young, 487 Hawley v. Brown, 199 Hawthorn v. Beokwith, 812 Hawze v. Mallet. 308 Haydoek v. Haydock. 133 Hayday v. Hayday, 806 1024 TABLE OF CASES. (References are Hayden v. Barrett, 156, 520 Hayden v. Connecticut Hospital for Insane, 648 Hayes v. Burkram, 424 Hayes v. Hayes, 277 Hayes v. Freshwater, 788 Hayes v. Pratt, o40, 648 Hayes v. Seavey, 23 Hayes v. Tabor, 658 Hayes v. West, 450 Haymond v. Jones, 574 Hayne v. Irvine, 517 Haynes v. Haynes, 174, 178, 204, 312, 323, 329, 354 Haynes v. Sherman, 636 Haynie v. Dickens, 713 Hays V. Davis, 573 Hays V. Ernest, 188, 190, 362 Hays V. Harden, 186 Hays V. Leonard, 624 Hayward v. Brailsford, 461 Hayward v. Loper. 464, 794, 820 Haszard v. Haszard, 550 Hazard v. Hazard, 735 Hazelett v. Farthing, 138 Hazelton v. Reed, 50 Head, In re, 764 Heady's Will, 221 Heald v. Heald, 473, 806 Healey v. Eastlake, 572 Healey v. Simpson, 70, 72, 73, 79 Healy v. Healy, 462, 514, 556, 565, 631, 662, 676 Healy v. Reed, 25, 31, 806, 808 Heard v. Reed, 546, 602, 691 Hearle v. Greenbank, 92 Hearns v. Waterbiiry Hospital, 648 Heater v. Van Auken, 156 Heath v. Heath, 72, 75 Heath v. Lewis. 681 Heath v. McLaughlin, 771, 773 ITeath, Goods of, 311 Heaton v. Dennis, 330 Hebden's Estate, 236 Heck v. Clippenger, 528 Heck's Estate, 574 Hedger v. Judy, 767 Heffner v. Heffner, 230 to sections.) Heffner's Succession, 345 Hegarty's Appeal, 340, 341 Hegeman v. Moore, 54 Hegney v. Head, 132, 382, 394, 406, 419 Heidenheimer v. Bauman, 617, 821 Heilman v. Heilman, 469, 069 Heinrichsen v. Heinrichsen, 659 Heise v. Heise, 186. 263, 277 Heiskell v. Chickasaw Lodge, 153, 647 Heisler v. Sharp, 796 Heiss v. Murphy, 655 Heister v. Green, 760 Helfrich v. Helfrich, 700 Helfrich v. Warner, 760 Heller v. Heller, 588 Hellier v. Hellier, 270 Hellier, Ex parte, 271 Helm v. Leggett, 681, 716 Helme v. Strater, 711 Helyar v. Helyar, 271 Hemenway v. Hemenway. 546, 606 Hemingway's Estate, 104, 108 Hemingway, In re, 676 Heminway v. Reynolds, 319 Heminway v. Roberts, 337. Hemhauser v. Decker, 576 Hemphill v. Pry, 691 Hemphill's Estate, 619 Hendershot v. Shields, 470, 473 Henderson v. Harness, 684 Henderson v. Kenner, 199 Henderson v. Kinard, 598 Henderson v. Ryan, 21, 23, 141 Henderson v. Smith, 698 Hendy's Estate. 631 Hennessey's Heirs v. Woulfe, 112, 241. 413 Henry v. Griffis, 752, 773, 793 Henry v. Hall, 23, 98. 126, 131, 362, 382, 385, 414, 415. 426, 427 Henry, Ex parte, 157, 188 Henry v. Pittsburgh Clay Mfg. Co., 561 Henry v. Thomas. 558 Henshaw v. Foster, 159 Hensler v. Senfret, 576, 579 TABLE OF CASES. 1026 (References are to sections.) Heppenstall's Estate, 596, 613 Herbert v. Benier, 94, 174, 177, 223 Hershey v. Meeker County Bank, 577, 812 Herster v. Herster, 423 Hertzog v. Hertzog, 78 Herwick v. Langford (also cited as In re Langiord), 128, 410, 421, 423, 472 Hess's Will, 23, 385, 404, 411, 414, 423, 428 Hester v. Young, 53 Hesterberg v. Clark, 254, 276, 298, 299, 327, 367, 370 Hewes v. Dehon, 766 Hewlett V. Wood, 392 Herbert v. Long, 127, 244, 385 Herbert v. Wren, 726 Herd v. Catron, 681 Herman's Appeal, 512 Herr v. Herr, 712 Herring v. Barrow, 690 Herring v. Ricketts, 319, 336, 337 Herriott v. Prime, 663 Hersey v. Simpson, 659 Hershy v. Clark, 66, 67, 68 Hewitt's Estate, 649 Hewitt's Will, 164. 186 Hiatt V. Williams, 79 Hibbs V. Insurance Co., 137, 717 Hibler V. Hibler, 461, 669, 738, 739, 750, 758, 770 Hick V. Mors, 278 Hick's Estate, 542, 554 Hickling v. Fair, 668 Hickman's Estate, o25 Hickman, In re. 45, 285 hicks V. Smith, 522, 525 Hiers v. Gooding, 712 Hiestand v. Meyer, 585 Higbie v. Morris, 764, 765 Higffir.botham v. Higginbotham, 128, 131, 133, 366, 414, 422, 424, 426 Higgins V. Carlton, 97, 173, 180. 218, 382 Higgins V. Dwen. 466, 485 Higgins, In re, 205, 228 Higginson v. Kerr, 691 Higginson v. Turner, 644 High's Estate, 570, 664 Hight V. Wilson, 170 Hightower v. Williams, 339 Hildreth v. Marshall, 47, 119, 123, 225, 226 Hilger v. Dolle, 574 Hill V. Bean, 689 Hill V. Bahrns, 400 Hill V. Barge, 209, 210 Hill V. Bell, 230 Hill V. Brown, 561 Hill V. Crook, 156, 522, 525 Hill V. Harding, 66, 67, 68, 69, 545 Hill V. Hill, 291, 2;94, 723, 724, 727, 728 Hill V. McRae, 685 Hill V. Page, 610, 611 Hill V. Toms, 758 Hill's Estate, 139 Hill's Succession, 244, 252, 266 Hillen v. Iselin, 631, 694 Hills V. Barnard, 460, 526, 535, 553, 667 Hills V. Putnam, 599 Hillyer v. Schenck, 335 Hillyer v. Vandewater, 626 Hilpipre v. Claude, 290 Hinckley v. Primm, 496 Hinckley v. Thatcher, 819 Hmckley's Estate, 643 Hine, In re, 403, 426 Hine, Goods of, 257 Hine v. McConnel, 192 Hindman v. Van Dyke, 423, 426 Hindmarch, Goods of, 433 Hindmarsh v. Charlton, 215, 299 Hinkle v. Landis, 54 Hinkle's Appeal, 576 Hinkson v. Lees, 663, 676 Hinson v. Booth. 138 Hise V. Fincher, 247, 255 Hiss V, Wick, 333 Hitchcock V. Bank, 269 Hitchcock V. Genesee Probate Judge, 717 Hitchcock V. Peaslee, 598 1026 TABLE OF CASES. (References are Hitchcock V. Shaw, 191, 194 Hite V. Hite, 601, 602 Hite V. Sims, 105 Hix V. Whittemore, 113, 384 Hoadley v. Wood, 528, 545 Hoagland v. Marsh, 517 Hoban v. Campau, 100 Hobart v. Cook, 3G6 Hobart v. Hobait, 205, 307, 314, 366, 371, 372, 373 Hobbs V. Knight, 248, 249, 252, 254 Hobbs V. Smith, 685 Hobbs V. Pyson, 485 Hobokefl First Baptist Church v. Syms, 755 Hobson V. Blackburn, 67 Hock's Estate, 55/ Hockensmith v. Slusher, 288, 292 Hocking, In re, 691 Hockley v. Mawbry, 5BG Hodges V. Phelps, 553 Hodges, Appeal of, 66 Hodgkinson, Goods of, 268, 272 Hodgman v. Kittredge, 191, 197, 199 Hodgman's Estate, 814 Hodgman, In re, 736, 769, 770, 772 Hodgson V. Halford, 681 Hodgson, In re, 697 Hodnett's Estate, 25, 72 Hodsden v. Lloyd, 284 Hoeflfer v. Clogan, 650 Hoesford, Goods of, 185 Hoeveler v. Hume, 574 Hoff's Estate, 591 Hoffecker v. Clark, 775 Hoffner's Estate, 25, 70, 72, 76 79, 268, 277 Hoflfman v. Hoffman, 21, 216 Hofius V. Hofius, 476 Hogan V. Curtin, 681 Hogan V. Grosvenor, 206, 216, 227 Hogan V. Kavanaugh, 747 Hoge V. Hoge, 72 Hoit V. Hoit, 252, 281, 282, 283, 284, 285, 466 Holbrook v Bentley, 488 Holbrook v. Harrington, 554 to sections.) Holcomb V. Holcomb, 388 Holcomb V. Wright, 597, 657 Holden v. Blaney, 269 Holden v. Meadows, 97 Holden v. Strong, 605 Holden v. Welis, 566 Holder, In re, 510, 554, 700 Holdfast V. Downing, 192 Holford, In re, 600 Holland v. Alcock, 643 Holland v. Taylor, 136 HoUenbeck v. Cook, 132, 333, 382, 385, 426 HoUenbeck v. Van Valken burgh, 178 Holley V. Larrabee, 269 Holliday v. Ward, 335 Hollingshead v. Sturgis, 264, 277 Hollingsworth v. Hollingsworth, 296 Hollingsworth's Appeal, 290, 293 Hollingsworth's Will, 423 Hollis V. Hollis, 483 Holloraan v. Copeland, 288, 290, 293 Hollister v. Butterworth, 676 Hollister v. Howe, 806 Hollrah v. Lasance, 354 Holman v. Hopkins, 28 Holraan v. Perry, 340 Holman v. Riddle, 301, 338, 354, 431 Holmberg v. Phillips, 102, 334 Holmes v. Coates, 648, 787 Holmes v. Hancock, 513 Holmes v. Holloman, 366 Holmes v. Mitchell, 461 Holmes v. Pickett, 706 Holt V. Holt, 597 Holt V. Lamb, 324, 329, 331. 339 Holt V. Pickett, 518, 5G4, 570 Holt's Will, 192, 198, 199, 362, 363 Hollyday v. Hollyday, 597, 798, 800 Holyland, Ex parte, 88 Hollyburton v. Carson, 269 Home for Incurable v. Noble, 267, 268, 269 Homer v. Brown, 269 Homer's Estate, 463 Hone V. Van Schaick, 522 TABLE OF CASES. 1027 (References are to sections.) Honejn^'ood, In re, 314 Hood V. Dawson, 5G1, 566 Hood V. Haden, 780 Hood's Estate, 314 Hooks V. Stamper, 341 Hooker v. Montague, 597 Hoope's Estate, 97, 102, 103, 115, 323, 384, 390, 402, 414, 468, 744 Hooper v. McQuary, 231, 264 Hoover v. Gregory, 467 Hoover v. Hoover, 658, 659 Hope's Appeal, 35, 441, 629, 700 Hopkins v. Coleson, 604 Hopkins v. Gliint, 611 Hopkins v. Grimes, 462 Hopkins v. Keazer, 550, 572, 666 Hopkins v, Kent, 610, 615, 618 Hopkins v. Lee, 78 Hopkins v. Wheeler, 210, 361 Hopkin's Trusts, 602 Hoppe's Will, 194, 344 Hopper V, Harrod, 664, 678 Hopple V. Hopple, 74 Horlock, In re, 796 Horn V. Pullman, 102, 422 Hornbuckle, In re, 91 Home V. Feather stone, 215 Horneby v. Davis, 488 Homer v. Brown, 269 Horton v. Cantwell, 808 Horton v. Earle, 542, 743 Hortoi! V. Jolmson, 220 Horton v. Upham, 813 Horwitz V. Norris, 691 Hoss V. Hoss, 674, 678 Hoshauer v. Hoshauer, 47, 160, 423, 428 Hotaling v. Marsh, 473 Hotchkiss V. Ladd, 321, 337 Hotchkiss, In re, 532 Hotz's Estate, 681 Houghton V. Bell, 554 Houghton V. Kendall, 515 House of Mercy v. Davidson, 36, 153, 745 Houser v. Moore, 48 Houser v. RuflFner, 463, 470 Hovey v. Chase, 100 Hovey v. Dary, 704 Hovey v. Hovey, 710, 723 Hovey v. Nellis, 548, 661 Hovey v. Walbank, 581 Howard v. American Peace Society, 467 Howard v. Carusi, 572, 684, 695 Howard v. Howard, 554 Howard v. Moot, 382 Howard v. Hazard, 208 Howard's Will, 210 Howat v. Howat, 97, 334, 382 Howden's Case, Lord, 314 Howe V. Fuller, 470, 576 Howe V. Gregg, 570, 613 Howe V. Hodge, 626, 630 Howel V. Price, 705 Howell V. Craft, 719 Howell V. Horner, 449 Howell V. Howell, 430 Howell V. Mellen, 707 Howell V. Patry, 684 Howell V. Taylor, 100, 405 Howell-Shepherd, In re, 269, 497 Howerton v. Henderson, 473 Howes V. Colburn, 306, 394 Howland v. Clendenin, 597 Howland v. Slade, 532, 545, 551 Hoxsey v. Hoxsey, 684 Hoxton V. Griffith, 554 Hoy V. Master, 611 Hoyt V. Jaques, 691 Hoyt V. Hoyt, 750, 755 Hoysradt v. Tionesta Gas Co., 357 Hubard v. Goodwin, 150 Hubbard v. Hubbard, 23, 97, 312, 382, 383 Huber v. Donoghue, 718 Huber v. Free, 613, 691 Huber, Goods of, 39 Hubert's Estate, 802 Huckabee v. Swoope, 528 Huckvale, Goods of, 183 Huddleston, In re, 698, 820 Hudgins v. Leggett, 670, 807 Hudson V. Hudson, 78 Hudson V. Hughan, 94, 97, 101, 102, 329, 333 1028 TABLE OF CASES. (References are to sections.) Hudnall v. Ham, 281, 32.3 Hudson V. Adams, 333 Hudson, In re, 618 Huey V. Thomas, 751 Huff V. Huff, 218 Huffman v. Young, 403, 473, 487 Huggins V. Huggins, 553 Hughes V. Bank, C89 Hughes V. Boone. 321 Hughes V. Clark, 564 Hughes V. Faulkner, 89 Hughes V. Hughes, 288, 400, 631, 637, 767 Hughes V. Kirkpatrick, 789 Hughes V. Knowlton, 156 Hughes V. Meredith, 414 Hughes V. Murtha, 127, 410 Hughes V. Nicklas, 595 Hughes V. Rhodes, 689 Plughes V. Smith, 231 Hughes V. Wells, 91 Huhlein v. Huhlein, 713, 717, 726 Huidekoper v. Perry, 691 Huish, In re, 797 Hulett V. Carey, 286 Hulett's Estate, 281 Huling V. Fenner, 529 Hull V. Holloway, 576, 614 Hull V. Hull, 24, 487 570, 572, 777 Hulse's Will, 227 Hulson V. Sawyer, 331 Humason v. Andrews, 590 Hume V. Burton, 312 Hume V. Randall, 577 Hume, In re, 145 Humes v. McFarlane, 144 Humphrey v. Richards, 91 Humphries, In re, 525 Hungerford v. Nosworthy, 270 Hunkypillar v. Harrison, 722, 752, 754 Hunt V. Acre, 324 Hunt ex rel. v. Evans, 162, 468 Hunt V. Fowler, 612, 647 Hunt V. Hall, 656 Hunt V. Hawes, 684, 696 Hunt V. Hayes, 750 Hunt V. Hunt, 58, 157, 185, 611 Hunt V. Johnson, 473 Hunt V. Wheeler, 752, 761 Hunt V. White, 236 Hunt V. Williams, 491 Hunt's Appeal, 689 Hunt's Estate, 522, 523 Hunt, Goods of, 47 Hunt, In re, 223, 226, 228, 372 Hunt's Will, 284 Hunter v. Green, 598 Hunter v. Hunter, 712, 723 Hunter v. Stembridge, 751 Hunter, In re, 649 Hunter's Succession, 744 Hunter's Will, 343 Hurd V. Shelton, 603, 737 Hurley v. O'Brien, 127, 333 Hurst V. Beach, 799 Hurt V. Brooks, 463, 579 Hurton v. Hurton. 425, 429, 449 Huss, In re, 35. 36 Huston V. Cone, 710, 717, 720 Huston V. Craighead, 576 Huston V. Huston, 816 Huston's Appeal, 803 Hutchins v. Ford, 389 Hutchins v. Pearce, 676 Hutchinson v. Hutchinson, 110 Hutchinson, //( re, 611 Hutton V. Benkard, 698 Hyatt V. Vanneck, 717 % Hyde v. Hyde, 88, 273 Hylton V. Hylton, 270 Hysradt v. Kingman, 216 lasigi V. lasigi, 689 Iddings V. Iddings, 820 Ide V. Clark, 612, 717 Ide V. Ide, 578, 684, 695 Ihrie's Estate, 471. 558 limas V. Neidt, 462, 574, 676, 758 Ikard v. Thompson, 818 Ilott V. Genge, 205 TAB1.E OF CASES. 1029 (References are to sections.) Ingall's Will, 366, 393 Inge V. Johnston, 313 Inge V. Jonas, 546 Ingelfield v. Coghlan, 799 Ingersoll v. Hopkins, 281 Ingersoll's Esta4;e, 61, 708 Ingersoll's Will, 621 Ingilby v. Amcotts, 145 Inglesant v. Inglesant, 205 Ingraham v. Ingraham, 59, 465, 612, 626, 630, 641, 642, 648, 655, 669, 813 Inman, In re, 507 Iowa Loan Trust Co. v. Holderbaum, 764 Irish V. Smith, 428 IrvJn V. Patchen, 702 Irvin's Appeal, 513 Irvine v. Irvine, 678 Irvine v. Newlin, 512 Irwin v. West, 424 Isherwood v. Isherwood, 561 Israel v. Wolf, 315 Ives V. Canby, 770, 774 Ives V. McNicoIl, 520 Izard V. Middleton, 74 Jack V. McKee, 78 Jack, In re, 694 Jackman's Will, 344 Jackson v. Alsop, 555, 556, 561, 820 Jackson v. Billinger, 468 Jackson v. Bull, 561 Jackson v. Delancey, 482 Jackson v. Durland, 198 Jackson v. Edwards, 577 Jackson v. Hardin, 96 •Jackson v. Holloway, 306 Jackson v. Hoover, 462 Jackson v. Jackson, 58, 173, 179, 202, 222, 223, 226, 293, 526, 566, 605 Jackson v. Moore, 209 Jackson v. Phillips, 639, 641, 643, 653, 655 - Jackson v. Roberts, 543 Jackson v. Robins, 576 Jackson v. Shinnick, 267 Jackson v. Thompson, 614, 806 Jackson v. Van Duzen, 219, 373 Jackson v. Wood, 198 Jackson's Estate, 67u Jackson's Succession, 795, 797 Jacob V. Jacob, 617, 710 Jacob's Estate, 142, 489 Jacob's Will, 172 Jacobson, In re, 186 Jacoby's Estate, 48, 277 Jacques v. Horton, 449 Jacques v. Swasey, 308 Jaffee v. Jacobson, 79 James v. Cohen, 272 James v. Dean, 141 James v. Marvin, 273, 277 James v. Pruden, 465, 470 James v. Shrimpton, 259 James v. Sutton, 116, 132, 279 James, Goods of, 249, 251, 252, 254, • 259, 275 James, In re, 602 Jamieson, In re, 704, 755 Janes, In re, 321 Janney v. Sprigg, 473, 676 Jaques v. Swasey, 783 Jarnagin v. Conway, 466 Jasper v. Jasper, 461, 463, 817 Jaudon v. Ducker, 755 Jauretche v. Proctor, 578, 684 Jeans, In re, 525 Jeflfers v. Lampson, 662 Jele v. Lemberger, 151, 325 Jenkins v. Adcock, 52 Jenkins v. Compton, 576 Jenkins v. Dawes, 192 Jenkins v. Jenkins, 520 Jenkins v. Tobin, 382 Jenkins v. Trust Co., 31, 33, 35, 600 ..Jenkins's Will, 173, 174 Jenks V. Jackson, 470 Jenkyns v. Gaisford, 172 1030 TABLE OF CASES. (References are to sections.) Jenner v. Finch, 209 Jenness v. Hazelton, 47 Jennings v. Jennings, 137, 737 Jennings v. Tarr, 676 Jepson V. Key, 142 Jeremy's Estate, G59 Jesse V. Parker, 221 Jilson V. Gilbert, 74 Jinkins v. Lawrence, 269 Jocelyn v. Nott, 633, 640 Jochumsen v. Bank, 341 Jodrell, In re, 529, 532 John V. Smith, 643, 645 Johns V. Hodges, 312 Johns V. Johns, 577 John's Will, 45, 610, 640, G45, 653 Johns Hopkins University v. Mid- dleton, 691 Johns Hopkins University v. Pinck- ney, 207, 269 John Mercer Home, In re, 641 Johnson v. Armstrong, 125, 384, 387 Johnson v. Bard, 325 Johnson v. Beazley, 341 Johnson v. Billups, 612 Johnson v. Bodine, 520, 554 Johnson v. Brailsford, 242, 248, 254, 263, 450 Johnson v. Brasington, 466, 512 Johnson v. Childs, 691, 765 Johnson v. Cochrane, 116, 323 Johnson v. Conover, 700, 757, 700 Johnson v. Edmond, 630, 631 Johnson v. Fry, 157 Johnston v. Glasscock, 234 Johnson v. Gooch, 685 Johnson v. Goss, 477 Johnson v. Granthen, 691 Johnson v. Home for Aged Men, 750, 758, 773, 775 Johnson v. Hubbell, 79 Johnson v. Johnson, 52, 92, 206, 216, 240, 333, 481, 494, 576, 582, 610, 619, 684 Johnson v. Knight, 554 Johnson v. Poulson, 758 Johnson v. Stevens, 405 Johnson v. Warren, 675 Johnson v. Webber, 545, 558, 561, 628, 631, 633, 661, 802 Johnson v. Whiton, 561 Johnson v. Yancey, 55 Johnson's Appeal, 411 Johnson's Estate, 402 Johnson's Will, 257, 384, 434, 437, 449, 450, 453 Johnston v. Johnston, 5G2, 576. Johnston v. Knight, 557 Johnston v. Safe Deposit & Trust Co., 562 Johnston' v. Stevens, S!s2 Johnston's Estate, 112, 115, 497, 626, 629, 6.30, 632 Johnston's WMll, 273 Johnstone v. Harrowby, G43, 800 Joliffe v. Fanning, 45 Jolly's Will, 181 .Tones v. Bacon, 574 Jones v. Caster, 348, 352, 434, 435, 441 Jones V. Colbeck, 547 Jones V. Creveling, 799 Jones V. Deming, 576 Jones V. Dove, 312 Jones V. Green, 643 Jones V. Grogan, 97, 121, 423, 4.30 Jones V. Habersham, 28, 36, 153. 161, 194, 640, 651 Jones V. Hartley, 278, 304, 306 Jones V. Hunt, 459, 551 Jones V. Jones, 182, .341, 373, 572, 576, 613, 666, 681, 700 Jones V. Knappen, 668 Jones V. Larrabee, 191, 199 Jones V. Lloyd, 513, 514, 710 Jones V. Martin, 70, 79 Jones V. Miller, 520 Jones V. Moore, 676 .Jones V. Murphy, 268, 270, 273 Jones V. Norton, 234 .Tones v. Perkins, 83 Jones V. Port Huron Engine, etc. Co., 684 .Tones v. Quattlebaum, 485, 820 Jones V. Richardson, 786 TABLE OF CASES. 1031 (References are to sections.) Jones V. Roberts, 127, 257, 331, 333, 341, 344 Jones V. Robinson, 22, 312 Jones' V. Simpson, 123, 128, 409, 413 Jones V. Strong, 209 Jones V. Tebbetts, 193, 199 Jones V. Tuck, 213 Jones V. Webb, 676 Jones's Estate, 248, 320, 341, 729 Jones, Goods of, 187 Jones, In re, 320, 577 Jordan v. Fortescue, 468 Jordan v. Hinkle, 676 Jordan v. Jordan, 53 Jordan v. Russell, 346 Jordan v. Woodin, 470 Jordan's Estate, 199, 362 Joslin V. Hammond, 466 Joslin V. Rhoades, 562 Joslyn V. Sedam, 105 Jourolmon v. Massengill, 685 Joy V. Fesler, 488 Judevine v. Judevine, 507 Judy V. Guilbert, 487 Jupp, In re, 478, 506 Justus, Succession of, 224, 613, 321, 336 K Kaenders v. Montague, 132, 385, 422, 423, 426 Kain v. Fisher, 528 Kain v. Gibboney, 31 Kane's Estate, 596 Kanouse v. Stockbower, 473, 502 Kastell V. Hilman, 79 Kaufman v. Breckinridge, 581 Kaufman v. Burgert, 684 Kaufman v. Caughman, 132, 208, 222, 366, 372, 383, 388, 409, 423 Kaufman v. Ehrlich, 52 Kaufman's Estate, 23, 130, 423, 426, 427 Kaufman, In re, 284 Kaufman's Will, 385 Kaul V. Brown, 428 Kavanaugli's Will, 25 Keagle v. Pessell, 70 Kean v. Kean, 622 Kean v. Tilford, 656 Keaney v. Keaney, 583, 585 Kearney v. Cruikshank, 607, G09 Keating v. McAdoo, 2, 473, 574, 676 Keating v. Reynolds, 596 Keay v. Boulton, 515 Keebler v. Shute, 97 Keenan v. Keenan, 150 Keen v. Keen, 437, 450 Keene v. Corse, 312, 323 Keene v. Munn, 765 Keeney v. Whitmarsh, 173 Keepers v. Fidelity, Title & Deposit Co., 663 Keesy v. Dimon, 435, 442 Kehoe, Goods of, 162 Keister v. Keister, 321, 323, 335 Keith V. Eaton, 29 Keith V. Keith, 28 Keith V. Miller, 66, 68, 70 Keith V. Proctor, 316 Keith V. Scales, 610, 614, 640, 645. 655, 686, 819, 823 Keifer v. Schwartz, 698 Keithley v. Stafford, 96, 333 Kelcher. In re, 219 Kelemen's Will, 611 Keller v. McCalop, 241 Kellett V. Shepard, 512, 517, 545, 561, 547 Kellher v. Kernan, 58 Kellogg V. Mix, 473 Kellum, In re, 372 Kelly V. Aired, 92, 93 Kelly V. Ball, 713 Kelly V. Gonce, 669 Kelly V. Jackson, 340 Kelly V. Kelly, 333, 387, 550, 806, 820 Kelly V. Miller, 111 Kelly V. Nichols, 466, 630, 647, 649, 651. 654, 745. 746 Kelly V. Parker, 52 Kelly V. Richardson. 49, 53. 268, ■ 269, 492, 494, 767, 768, 773, 775 1032 TABLE OF CASES. (References are to sections.) Kelley v. Shimer, 52 Kelley v. Vigas, 553, 557 Kelley v. Welborne, 25 Kelley v. Williams, 594 Kelso's Estate, 569 Kerapsey v. McGinniss, 389, 392 Kendall v. Clapp. 624 Kendall v. Gleason, 515 Kendall v. Kendall, 157 Kenebel v. Scrafton, 283 Keniston v. Mayhew, 581, 690 Kennard v. Kennard, 317, 466 Kennedy v. Badgett, 787 Kennedy v. Johnston, 727 Kennedy v. Kennedy, 576 Kennedy v. Merrick, 806, 808 Kennedy v. Upshaw, 264, 370 Kennedy's Estate, 674 Kennett, in re, 276 Kenney v. Keplinger, 581 Kent V. Barker, 290, 522 Kent V. Dunham, 647, 803, 804 Kent V. Kent, 74 Kent V. Mahaflfey, 244, 247, 255, 278, 279 Kent V. Morrison, 576 Kent V. Tapley, 499 Kenworthy v. Williams, 382 Kenyon v. Saunders, 86, 155, 325 Kenyon, Petitioner, 466, 549 Kerf V. Gerichs, 562 Kern v. Kern, 274, 365 Kerr v. Dougherty, 508 Kerr v. Lunsford, 85, 96, 409 Kerr v. Moon, 28 Kerrigan v. Tabb, 739, 741 Kessinger v. Kessinger, 132, 411 Ketchum v. Corse, 630, 633, 745 Ketchum v. Stearns, 130, 170 Key V. Holloway, 112, 382 Key V. Weathersbee, 194, 196, 197, 198 ' Keyl V. Feuchter, 202, 203, 207, 222' 227 Kidd, In re, 135 Kidder's Estate, 261, 348 Kidney's Will, 105, 120, 400 Kieflfel v. Keppler, 575 Kiene v. Ginehle, 565 Kilburn v. Dodd. 808 Kile, In re, 329 Kilgore v. Kilgore, 462, 553 Kimball v. New Hampshire Bible Soc, 135, 698, 813 Kimball v. Story, 820 Kimball's Will, 493, 574, 744 Kimberly's Appeal, 97, 104, 105, 111, 120, 391 Kimberley, In re, 540, 590 Kimble v. White, 658, 668 Kimpton^ Goods of, 186 Kinaid v. Kinaid, 53 King V. Beck, 564, 596 King V. Berry, 117 King V. Bock, 695 King V. Evans, 370, 565 King V. Frost, 582 King V. Frick, 676 King V. Grant, 819 King V. Holmes, 413, 414, 423, 424, 426, 429 King V. King, 97, 362, 382 King V. Ponton, 449 King V. Savage, 566 King's Administrator v. Rose, 323 Kingman v. Harmon, 656 Kingman v. Winchell, 685, 820 Kingsbury v. Whitaker, 384, 385 Kinike's Estate, 619, 643 Kinkele v. Wilson, 470, 472, 562. 758 Kinney v. Keplinger, 676 Kinney v. Kinney, 820 Kiracofe v. Kiracofe, 93 Kirby v. Kirby, 337 Kirk V. Bowling, 312 Kirkcudbright v. Kirkcudbright, 271 Kirke v. Kirke, 277 Kirkpatrick v. Jenkins, 266, 400, 423 Kirkpatrick v. Pyle, 54 Kirkpatrick, /n re, 254 Kirkpatrick's Will, 181, 223, 244, 249, 450 Kisecker's Estate, 49, 188 TABLE OF CASES. 1033 (References are to sections.) Kitchell V. Young, 758 Kitchens v. Kitchens, 434 Kittredge v. Hodgnian, 198, 362 Kleeburg v. Schrader, 70, 73, 77 Kleinman v. Geiselman, 138 Kling V. Schnelbecker, 554 Klotz's Estate, 700 Knapp V. Knapp, 437, 453 Knapps V. Reilly, 173, 222 Knaub's Estate, 753 Knauss's Appeal, 98 Knauss's Estate, 461, 680 Knight V. Knight, 346, 596 Knight V. Mahoney, 681, 726 Knight v. Pottgeiser, 659 Knight V. Read, 290 Knight V. Tripp, 44, 55, 56, 159 Knight V. Weedon, 28 Knight's Estate, 25, 110, 649 Knollys v. Alcock, 278 Knoppel V. Holm, 28 Knorr v. Millard, 548 Knowlson v. Fleming, 52 Knox V. Barker, 31 Knox V. Jones, 28 Knox V. Knox, 23, 125, 126, 131, 133, 270, 273, 382, 385, 453 Knox V. Paull, 312, 313, 337 Knox V. Richards, 236 Knox's Appeal, 172 Knox's Estate. 58, 159 Koeffler v. Koeffler, 676 Koegel V. Egner, 94, 384, 416 Koff V. Herrman, 561 Kohl V. Schober, 47 Konvalinka v. Schlegel, 716 Koon's Estate, 804 Kopp V. Gunther, 52 Korf V. Gerichs, 560, 561 Kornegay v. Morris, 676 Kostelecky v. Scherhart, 312, 325, 368, 396 Kotz V. Belz, 436, 439 Krankel v. Krankel, 126 Krause v. Kliicken, 690 Krell V. Codman, 54 Krigbaum v. Southard, 803 Kruse v. Baeder, 685 Kumpe V. Coons, 194, 196, 325 Kunnen v. Zurline, 65, 732 Kurtz V. Saylor, 21, 89, 283, 310 Kurtz's Estate, 522 Kuykendall v. Devecmon, 561, 562, 598, 802 Kyle V. Perdue, 53 La Bar's Estate, 598 La Chapelle v. Burpee, 155 Lackey's Estate, 708 Lacon, In re, 780 Ladd V. Chase, 573, 695, 698, 807, 808 Ladd V. Harvey, 592 Ladd's Estate, 503 Ladd's Will, 249 Lafoy V. Campbell, 676 La Grange v. Ward, 315 Lagrave v. Merle, 230 Laing's Will, 228 Laird v. Laird, 78, 80 Lake v. Copeland, 770, 774, 793 Lamb v. Girtman, 210, 215 Lamb v. Lamb, 2, 142, 459, 473, 479, 489, 507 Lamb v. Lippincott, 161, 379, 390, 409, 417, 428 Lamb v. Lynch, 394, 684 Lambell v. Lambell, 449 Lambert v. Coopers, 366 Lambe v. Eames, 611 Lambie's Estate, 270, 434, 437, 439, 441, 443, 444, 451, 454 Lampert v. Haydel, 685 Landers v. Dell, 629, 033 Landwehr's Estate, 545, 548 Landry v. Tomatis, 241 Lane v. Crutchfield, 681 Lane v. Eaton, 640, 641, 643, 649 Lane v. Hill, 268, 273, 329, 330, 331, 377, 441 Lane v. Lane, 226 Lane v. Moore, 400, 423, 437 Lane's Appeal. 21, 216 1034 TABLE OF CASES. (References are Lang's Estate, 112, 257 Lang's Will, 299 Langan, In re, 177, 335 Langdale v. Briggs, 142 Langdon v. Astor, 102, 165, 308 Langdon v. Blackburn, 315 Langevin, In, re, 325 Langford v. Pitt, 142, 143 Langford, In re, 128, 410, 412, 421, 423 Langford's Estate, 400 Langhrost v. Ahlers, 804 Langmaid v. Hurd, 528 Langley v. Farmington, 598 Langley v. Langley, 21, 230 Langley v. Tilton, 576 Langslow v. Langslow, 4G8 Lansing v. Haynes, 283, 284, 285 Lant's Appeal, 281, 284 Lapham v. Martin, 598, 666 Larby v. Crewson, 546 Lardner v. Williams, 691, 698 Larkin v. Larkin, 752 Larkins v. Larkins, 254 Larsen v. Johnson, 695 Larson v. How, 339 Larson's Estate, 312, 319 Lasak's W^ill, 317 Lasanee's Estate, 438, 440 Lassee's Will, 220 Lassiter v. gravis, 345 Latham v. Latham, 473 Latham v. Udell, 410 Lathrop v. Dunlap, 284 Latimer v. Latimer, 52 Latta V. Brown, 737 Lauck V. Logan, 44, 49, 52 Landy, In re, 331 Landy's Will, 372 Laugh ton v. Atkins, 257, 264, 273, 277, 319 Laurence v. McQuarrie, 674, 682 Lawrence v. Smith, 467, 626 Lawrence's Estate, 348 Lautenschlager v. Lautenschlager, 441 Lautenshlager, In re, 44, 53 Lavery v. Egan, 512 to sections.) Lavin v. Emigrant Industrial Sav- ings Bank, 341 Law V. Douglas, 684 Law V. Law, 249, 252, 254 La we V. Holder, 812 Lawes v. Bennett, 482 Lawlor v. Holohan, 676 Lawren's Estate, 626 Lawrence v. Crane, 513, 5(51 Lawrence v. Hebbard, 522 Lawrence v. Lawrence, 566 Lawrence v. Oglesby, 72, 244, 335 Lawrence v. McArter, 547 Lawrence v. Smith, 628, 629, 632 Lawrence v. Steel, 97 Lawrence's Estate, 626, 630 Lawson v. Dawson's Estate, 181 Lawson v. Morrison, 270, 273 Lawson, In re, 299, 431, 432 Lawton v. Corlies, 512 Lawton v. Fitchburg Savings Bank, 750, 773 La\vton v. Lawton, 692, 702 Lawyer v. Smith, 362, 437 Laxton v. Tilley, 751 Lay V. Creed, 547 Layman v. Conrey, 133 Layman's Will, 382, 388 Leach v. McFadden, 70 Leach v. Leach, 603 Leach, Goods of, 254 Leake v. Robinson, 466, 507 Leake v. Watson, 561, 565, 633, 736. 744 Learned's Estate, 21, 329 Leathers v. Gray, 568 Leathers v. Greenacre, 57, 58, 188, 233 Leaver v. Ganss, 53 Leavitt v. Beirne, 685 Lebeau v. Trudeau, 462 Le Breton v. Cook, 488 Ledger v. Hooker, 798 Lednum v. Cecil, 594 Ledwith v. Claffey, 389 Lee V. Bennett, 89 Lee V. Carter, 75 Lee V. Lee, 110, 747 TABLE OF CASES. 1035 (References are to sections.) Lee V. Mumford, GG2 Lee V. Paine, 819 ' Lee V. Scudder, 108 Lee V. Simpson, 689, 098, 817 Lee V. Smith, 771 Lee V. Tower, V36 Lee V. Welch, 546, 550, 561 Lee, In re, 501 Lee's Will, 97, 384 Leeming v. Sherratt, 661 Leete v. State Bank, 624 Le Farrant v. Sijeneer, 492 Lefebre's Estate, 279, 400, 401, 752 Le Fevre v. Le Fevre, 344 Leffingwell v. Bentley, 822 Leggett V. Firth, 576 Legwin v. McRee, 658 Lehnard v. Specht, 660, 696 Leigh V. Harrison, 685 Leigh V. Savidge, 466 Lejee's Estate, 614, 622 Lemme, Goods of, 368 Lcnehan v. Spaulding, 150 Lenning's Estate, 72, 631 Lent V. Howard, 689 Lenz V. Prescott, 806 Leonard v. Am. Baptist Mis. Soci- ety, 577 Leonard v. Burr, 640 Leonard v. Enochs, 292, 293 Leonard v. Haworth, 628, 651, 710 T^onai-d v. Leonard, 115 Leonard, Ex parte, 175, 177, 199 Lepard v. Skinner, 507 Lepley v. Smith, 577 Lepps .V Lee, 664 Leslie v. McKinney, 52 Leslie v. McMurty, 377 Leslie v. Moser, 803 Leslie v. Sims, 325 L'Estorneau v. Herquenet, 548, 656 Lett V. Randall, 466 Levengood v. Hoople, 571 Leverington, Goods of, 217, 219, 220 Leverett v. Carlisle, 227 Levis's Estate, 112 Levy V. Levy, 746 Levy's Estate, 496, 684 Lewis V. Aylott, 240, 446, 447 .Lewis V. Bryce, 572 Lewis V. Citizens' National Bank, 669 Lewis V. Doerle, 653 Lewis V. Lewis, 205, 219, 226, 228, 236, 243, 249, 450 Lewis V. Lichty, 716 Lewis V. Palmer, 575 Lewis V. Pitman, 407, 576 Lewis V. Scofield, 66, 67, 68 Lewis, Goods of, 219, 248 Lewis' Estate, 653 Lewis, In re, 501, 585 Lewis's Will, 222 Leyson v. Davis, 79 L'Herminier, In re, 691 Lide V. Lide, 410 Lifford V. Sparrow, 676 Liggatt V. Hart, 489 Like V. Cooper, 713 Likefield v. Likefield, 61, 62, 674 Lillibridge's Estate, 331 Lillie V. Lillie, 449 Lilly V. Menke, 737 Lilly V. Tobbein, 323 Lilly V. Waggoner, 397 Linberry v. Mason, 264 Linch V. Linch, 324, 423 Lincoln- v. Perry. 29, 34, 512, 561 Lindemeier v. Lindemeier, 570 Lindley v. O'Reilly, 689, 692 Lindsay v. Waldbrook, 771 Lindsay v. Zanoni, 8C2 Lindsay, Ex parte, 63, 64 Lines v. Lines, 57 Lingart v. Ripley, 713 Linginfetter v. Linginfetter, 273 Linkmeyer v. Brandt, 96, 115, 257 Linton V. Laycock, 461, 658, 659, 662, 663 Linton's Appeal, 227, 382 Lippincott v. Davis, 48, 466 Lippincott v. Stottenburg, 669 Lippincott V. Wikoff, 191, 198, 199 Lippincott's Estate, 478 Lischy v. Schrader, 333, 341 Liscomb v. Eldredge, 329 1036 TABLE OF CASES. (References are to sections.) Lisk V. Sherman, 74, 79 Lisle V. Tribbie, 78, 79, 795 List V. Rodney, 564 Listen V. Jenkins, 676 Littig V. Hance, 459, 767 Little V. Geer, 596, 598, 605 Little V. Giles, 576 Little V. Lockman, 231 Little V. Thome, 806 Little's Appeal, 668, 669 Littlewood's Will, 572, 574 Livesey v. Jones, 654 Livingston's Appeal, 329, 370, 382, 401, 405, 413, 424 Livingstone's Will, 98, 120 Lloyd V. Lloyd, 613 Lloyd V. Rambo, 570 Lloyd's Estate, 752 Locke V. James, 254 Lockart v. Lockart, 557 Lockhart v. Stephenson, 325 Lockhart, /n re, 314 Lockett v. Lockett, 561 Lockridge v. Mace, 630 Lockridge v. Mariner, 630 Lockwood V. Mildeberger, 698 Loder v. Whelpley, 416 Lodge's Will, 97 Loeb V. Struck, 576, 665 Loeser's Estate, 102, 331 Loftus-Otway, In re, 685 Logan V. Bell, 284 Logan V. Brunson, 742 Logan V. McGinnis, 78 Logan V. Wienholt, 79 Logan's Estate, 414, 429, 506, 535 Logue V. Stanton, 216 Lomax v. Shinn, 574, 576, 819 Lombard v. Willis. 549 London v. R. R. Co., 313 Lones, In re, 274, 454 Long v. Alfred, 304 ' Long v. Blackall, 533, 547, 628 Long V. Foust, 238 Long v. Gloyd, 643 Long V. Hess, 40, 73 Long V. Waldraven, 576 Long V. Zook, 21, 173 Longer's Estate, 55 Longford v. Eyre, 209 Longley v. Stump, 755 Longwith v. Riggs, 807 Loocock v. Clarkson, 776 Lopez's Succession, 343 Loring v. Arnold, 145 Jjord V. Bourne, 515 Lord V. Lord, 191, 193, 199, 221, 776 Lord V. Simonson, 488 Lorillard's Petition, 489 Loring v. Hayer, 474 Loring v. Hayes, 595 Loring v. Massachusetts Horticul- aural Society, 804 Loring v. Park, 194 Loring v. Steineman, 319 Loring v. Summer, 166 Lorings v. March, 294 Lorton v. W'oodward, 595 Losey v. Stanley. 661 Lott v. Thompson, 553 Lougheed v. Dykeman's Baptist Church, 640 Loughney v. Loughney, 97, 320, 394 Louisville Driving, etc. Association V. Louisville Trust Co., 582 L. & X. R. R. V. Sanders, 346 Louisville Trust Co. v. Todd, 570 Lovass V. Olson, 667, 669, 674, 676 Lovass's Estate, 676 Love v. Blann, 52 Love V. Johnson, 307, 400 Lovejoy v. ^McDonald, 689 Lovell V. Charlestown. 802 Lovell V. Quitman, 249, 252, 254, 299 Loveren v. Donaldson, 743 Loveren v. Lamphrey, 21, 141 Lovering v. Lovering, 744 Lovett V. Chisholm, 337 Loving V. Rainey, 507 Lowe V. Barnett, 659 Lowe V. Cloud, 684 Lowe V. Joliffe, 192 Lowe V. Williamson, 102 TABLE OF CASES. 1037 (References are to sections.) Lowman, In re, 482, 580, 630, 677 Lowndes v. Cooch, 37 Loy V. Kennedy, 205 Lucas V. Goff, 234, 236 Lucas V. Parsons, 109, 115 Lucas V. Tucker, 28 Luchenbach's Estate, 697 I;iidlow V. Bunbury, 684 * Ludlow V. Ludlow, 205, 228 Ludlow's Estate, 320 Ludlow's Will, 320 Ludwig's Estate, 205, 212 Luebbe's Estate, 25 Lufl'berry's Appeal, 707 Luigart v. Ripley, 713 Luudway v. Croft, 103 Lundy v. Lundy, 687 Luper V. Werts, 88, 158, 205. 312, 372 Lurie v. Radnitzer, 291, 292, 294, 298, 433 Lurman v. Hubner, 631 Lushington v. Onslow, 431 Lushington v. Sewell, 143 Lushy V. Taylor, 624 Luther v. Kidby, 278 Luther v. Luther, 312, 313, 321 Lutheran, etc.. Appeal, 267 Lycan v. Miller, 472 Lymam v. Morse, 209 Lyman v. Turner, 585 Lynch v. Miller, 28 Lynde v. Estabrook, 598 Lynn v. Hall, 545 Lyon V. Brown University, 772 Lyon V. Clawson, 585, 808 Lyon V. Dada, 122, 123, 128, 413 Lyon V. Home, 111 Lyon V. Ogden, 30 Lyons v. Campbell, 127, 131. 328, 409, 414, 419 Lyons v. Hammer, 325 Lyons v. Van Riper, 47 Lyon's Estate, 786 Lyon's Will, 199, 284, 362, 363 Lytle V. Beveridge, 522 M McAleer v. Schneider, 488, 489, 570 McAllister v. Burgess, 647, 649 McAnnulty v. McAnnulty, 284 McArthur v. Scott, 327, 548, 633, 656, 659, 663 McBride v. McBride, 46 McBride's Estate, 465, 600, 681 McCabe, Goods of, 270 McCall V. Jones, 489 McCall V. McCall, 662, 678 McCallister v. Bethel, 57 6 McCamant v. Nuckolls, 461, 691 McCambridge v. Walraven, 339, 340 McCans v. Board, 240 McCan's Succession, 636 McCarthy, In re, 98 McCartney v. Osborn, 517, 554, 666 McCarty v. Fish, 669, 673 McCarty v. Hoffman, 22 McCauley v. Buckner, 561 McChord v. Caldwell, 802 McClain v. Capper, 656, 657, 659 McClanahan v. Williams, 137 McClary v. Stull, 111, 314, 344, 345 McClellan v. Larchar, 575, 684 McClelland v. McClelland, 637 IMcCloskey v. Barr, 313, 335, 489 McClure v. McClure, 132, 273, 274, 410, 411, 428 McClure v. Spivey, 340, 341 McClure v. Taylor, 487, 588 McClure's Appeal, 668, 669 McClure's Will, 576 IMcComas v. Amos, 521 McComb V. McComb, 659 McCommon v. McCommon, 23, 97, 376, 426 McConnell v. Stewart, 658 McConnell v. Wilcox, 570 MacConnell v. Wright, 624 McConomy's Estate, 787, 788 McCoon V. Allen, 382 McCord V. Whitehead, 590 McCorkle v. Black, 591 1038 TABLE OF CASES. (References are to sections.) McCormick v. McCormiek, 333 McCormick v. Sullivant, 28 McCorn v. McCorn, 750, 755 McCown V. Owens, 4G8 McCrea v. Haraszthy, 335 McCrea's Estate, 515 McCullough V. Anderson, 576 McCulloch V. Campbell, 382 McCulloch's Appeal, 290 McCullough's Estate, 186 McCullum V. McKenzie, 282, 287 McCune v. Baker, 595 McCune v. House, 31, 32, 244, 264 McCurdy v. Neal, 223, 311 McCutcher v. Loggins. 325, 330 McDaniel v. McDaniel. 339, 340, 341, 676 McDaniel v. Pattison, 315 McDermott v. Wallace, 608 McDevitfs Estate, 127 McDevitt, In re, 409, 423 McDonald v. McDonald, 324, 328, 329, 335, 353, 370, 438, 441 McDonald v, Moak, 734 McDonald v. O'Hara, 693, 700 McDonald v. White, 325 McDonald's Estate, 736 McDougall, /m re, 598 McDowell V. Oyer, 78 McDowell V. Stiger, 752 McDowell's Estate, 741 McEl fresh v. Gnard, 210 McElwaine v. Holyoke First Congre" gational Society, 674 ]\IcElwaine, In re, 174 McElwaine's Will, 203 McEwen v. Fuller, 754 McFadden v. Heffley, 678, 768, 769, 777 McFadin v. Catron, 23, 98, 102, 125, 127, 132, 133, 159, 333, 370, 380, 405, 406, 409, 421, 423 McFarland v. McFarland, 672, 760 McFatridge v. Haltzclaw, 554, 557 McFeely v. Moore, 564 McGavock v. Pugsley, 576 MfOee V. Hall, 474, 582 McGee v. Porter, 158, 177 McGehee v. McGehee, 267, 268 McGill V. Gardner, 670 McGill's Appeal, 515 McGillis V. McGillis, 22, 151 McGlaughlin v. McGlaughlin, 729, 764 McGovern v. McGovern, 487 McGovran's Estate, 399, 741 McC.ough V. Hughes, 820 McGowan v. Baldwin, 712, 716 McGraw v. Minor, 570 McGraw's Estate, 36, 153 McGraw's Will, 405 McGreevy v. McGrath, 744 McGuire v. Bank, 52 McGurry v. Wall, 674 McHugh V. Fitzgerald, 389, 392, 394, 423, 424, 426 McHugh V. ilcCole, 610, 643, 655, 700, 707, 746 Mclntire v. McConn, 416, 426 Mclntire v. Mclntire, 230, 270, 302, 323, 453. 807 Mclntire v. Ramsey, 467 Mclntire v. Worthington, 257 Mclntire v. Wright, 102 Mclntire v. Zanesville, 655 Mcintosh V. Charleston, 152, 154, 644 Mcintosh V. Moore, 333, 304, 400, 449 Mcintosh's Estate, 522, 737 McKeegan v. O'Neil, 79 McKelvey v. McKelvey, 514, 516, 554, 557 McKenna v. McMichael, 270, 453 McKensey v. McKensey, 659 McKeough's Estate v. McKeough, 488, 819 ilcKibbon v. Feegan, 136 McKinney's Estate, 344 McKinnon v. Lundy, 672, 674, 675, 687 McKiuT^ou V. McKinnon, 54 McKnight v. Walsh, 605 McLane v. Cropper, 803 McLane's Estate, 132. 409 McLain v. Howald, 522 TABLE OF CASES. 1039 (References are McLarney v. Phelan, 284 McLarney, In re, 284 McLaughlin v. McLellan, 116 McLead v. Dell, 240 M'Leaii v. Barnard, 199 McLean v. Clark, 430 McLean v. McLean, 157 McLean v. Robertson, 771, 774, 776 McLellan v. Turner, 561 McLenahan v. McLenahan, 765, 766 McLeod V. McNab, 311 McMahon v. McGuire, 755 McMahon v. McMahon, 331 McMahon's Appeal, 775 McMaken v. McMaken, 324 McMaster v. Keller, 338 McMaster v. Seriven, 333, 365, 405 409, 415, 421 McMasters v. Blair, 98 McMasters v. Negley, 676 McMechen v. McMechen, 180, 382 McMichael v. Bankston, 230 McMichael v. Pye, 467 McMicken v. McMicken University, 492 McMillan v. Farrow, 576 McMillan v. McDill, 401, 424 McMulkin, In re, 222 McMuch V. Charles, 400 McMurry v. Stanley, 463, 473 McMurry v. Whitfield, 780 McNamara, Succession of, 78 McXaughton v. McNaughton, 141 McXeely v. Pearson, 335, 434, 439 440 McNeil V. Masterson, 506 McNicoll V. Ives, 29 McNutt V. McConib, 684 McOnie v. Whyte, 52 McRae V. McRae, 684 McRainey v. Clark, 268 McReynolds v. Counts, 737 McRejmolds v. Graham, 669-802 McSpadden v. Farmer, 340 McQueen v. Lilly, 554, 747, 749, 755 820 McQuire v. Moore, 579 to sections.) McTaggart v. Thompson, 95, 279, 366, 400 Maas V. Sheffield, 89 Mace V. Cushman, 515 Macduff, In re, 654 Machener's Estate, 576 Machir v. Funk, 698 Machray v. Higgins, 607 Mack's Appeal, 323, 639, 641, 643 649 Mackall v. Mackall, 23 Mackay v. Mackay, 599 Mackay's Will, 205 Mackenzie v. Mackenzie, 141 Macknet v. Macknet, 727 Mackrell v. Walker, 618 Macleay, In re, 684 Maddock, Goods of, 215 Maddox v. Maadox, 23, 96, 102, 127 132, 382, 385, 387, 397. 405, 409, 414, 421, 426, 681, 682 Maddox v. Rowe, 79 Madison v. Andrew, 698 Madison v. Larmon, 326, 526, 546 570, 582, 626, 628, 631, 663, 665 Madlock, Goods of, 299 Madonnell v. Purcell, 307 Magaw V. Field, 522 Ma»ee v. McNeil, 61, 62 Magoohan's Appeal, 162 Maguire v. Moore, 557 Mahoney v. Holt, 769 Main v. Ryder, 132, 204, 411 Major V. Williams, 272 Male V. Williams, 668, 802 Male's Case, 237 Male's Will, 236 Mallery v. Young, 121, 400, 423 Malona v. Schwing, 563, 676, 812 Malone v. Cornelius, 312, 318, 319, 320 Malone v, Hobbs, 255 Manatt v. Scott, 23, 116, 385, 386, 391, 399, 400, 416, 423, 426, 427 Mandeville v. Parker, 210, 223 Mandlebaum v. McDonnell, 684 692 l040 TABLE OF CASES. (References are Manifold's Appeal, 799 Manley's Executor v. Staples, 109, 126, 333, 362, 384, 408 Manners v. Library Co., 646 Mann v. Jackson, 681 Mann v. Martin, 504, 605 Mann, Goods of, 183 Mann's Estate, 670 Manning v. Pippen, 70, 74, 83 Manning v. Purcell, 496 Manning v. Thesiger, 799 Manogue v. Herrell, 102, 361, 423 Mansfield v. Mansfield, 571 Mansfield v. Mix. 616 Mansfield v. Shelton, 576 Manton v. Tabois, 492 Manuel v. Manuel, 31, 315 Manuel v. WulflF, 150 March v. Huyter, 66, 67, 68 Marchant's Estate, 166, 167 Marchemer's Estate, 726 Marcy v. Marcy, 319 Margary v. Robinson, 182 Mark's Succession, 476 Markham v. Huflord, 669, 679 Markle's Estate, 507, 542 Markley's Estate, 7 55 Markley's Appeal, 596 Marks v. Bryant, 235 Marlborough v Godolphin, 89 Marlow v. Hobbs, 255 Marquez's Succession, 241 Marr v. Marr, 244 Marsh v. Hoyt, 545, 668 Marsh v. Love, 691 Marsh v. Marsh, 101, 273, 274 Marsh v. Taylor. 803 ■ Marsh v. Wheeler. 669 Marshall v. Augusta, 579, 659 Marshall v. Hadley, 464, 471, 473, 483 Marshall v. Marshall, 278, 439, 440, 662 Marshall v. Mason, 222 Marshall v. Porter, 141 Marshall v. Reuch, 782 Marshall v. Wheeler, 693 Marshall's Appeal, 463 to sections.) Marshall's Estate, 618, 701 :\Iarshall, Goods of, 248 Marston v. Judge of Probate, 194 Marston v. Ma.rston, 157, 264, 268 284 Marston v. Norton, 89, 90, 93 Marston v. Roe, 143, 148, 283 Martien v. Norris, 724 Martin v. Fort, 624 Martins v. Gardner, 254 Martin v. Good, 751 Martin v. Hamlin, 161 Martin v. King, 432 Martin v. Mc Adams, 446, 362 Martin v. Martin, 56, 598 Martin v. Mitchell, 117 Martin v. Seigler, 681 Martin v. Smith, 483 Martin v. Stovall, 336 Martin v. Stubbings, 136 Martin v. Thayer, 85, 94, 97, 105, 120, 132 Martin v. Toet. 577 Martin v. Trustees of Mercer Uni- versity, 545, 551 Martin, Appeal of, 340 Martin's Estate, 230, 466, 695, 802 Martin, Goods of, 63 Martin, In re, 409, 666 Martindale v. Smith, 138 Martinez v. Martinez, 234, 239 Marvin v. Ledwith, 737 Marwick v. Andrews, 674 Marwood v. Turner, 278 Marx v. McGlynn, 150, 419, 427 Mason v. Baily, 513, 515 Mason v. Broyles, 618 Mason v. McLean, 280, 291, 292 Mason v. Pate, 595 Mason v. Roll, 809 Mason v. Smith, 269 Mason v. Williams, 410 INIason. In re, 623 Masonic Benevolent Association v. Bunch, 136 Masonic Association v. Jones, I.j'j Masonic Association v. Severson, 136 TABLE OF CASES. 1041 (References are to sections.) Maskell v. Goodall, 737 Massey v. Huntington, 52, 57 Massey v. Massey, 312 Massie v. Griffin, 64 Master v. Scriven, 127 Masters v. Masters, 819 Masterson v. Townsliend, 468 Mather v. Copeland, 551 Matheny's Estate, 138 Mathews v. Kirshner, 467 Matthews v. Moses, 52 Matthews v. Warner, 244 Mauck V. Melton, 75 Maud V. Maud, 79 Maul's Estate, 54, 279 Maund v. Maund, 340, 341 Maurer v. Bowman, 464 Maurer v. Naill, 325 Maverick v. Reynolds, 102 Maxwell v. Hill, 194, 199, 380, 423 Maxwell v. Maxwell, 62 Maxwell v. Sargent, 599 Maxwell v.Sawyer, 609 Maxwell's Will, 47 May V. Bradlee, 392, 423 May V. Jones, 577, 724, 814 May V. May, 806 May V. San Antonio, 562 May V. Slaughter, 144 Mayd, In re, 63 Mayer v. Gowland, 278 Maynard v. Tyler, 105, 108, 120, 127, 412, 426 Ma^Tiard v. Vinton, 127, 210, 211, 212, 407, 409 Maynes v. Hazleton, 248 Mayo V. Jones, 344, 383 Mayo V. Tudor, 139, 715, 723 Mayo V. Mayo, 209, 366, 374 Mazurie's Appeal, 573, 613 Meacham v. Graham, 596, 618, 624, 676, 806 Mead v. Maben, 676 Meade's Estate, 46 Mealing v. Pace, 157, 188 Means v. Means, 44 Means v. Moore, 261, 301 Mears v. Mears, 312, 323, 330, 409, 630 •Meck's Appeal, 49 Meddis v. Bull, 692 Medill V. Snyder, 106, 107, 331, 727 Medlock v. Merritt, 339 Meech v. Meech, 723 Meehan v. Rourke, 219, 385 Meek v. Briggs, 614, 618, 637, 685 Meeker v. Meeker, 397, 410 Meeks v. Lofley, 121, 329, 367 Meese v. Keefe, 28 Meier v. Lee, 151 Meis V. Meis, 398, 773, 775 Meisenheimer v. Bost, 507 Meisenheimer v. Sifford, 751 Melaney v. Morrison, 392 Melia v. Simmons, 341 Melick V. Darling, 710 Melizet's Appeal, 137 Mellen v. Mellen, 691, 718, 806, 808 Mellon V. Mellon, 723 Mellows V. Mellows, 136 Mence v. Mence, 254 Mendell v. Dunbar, 210, 215 Mendenhall v. Mendenhall, 721 Mendenhall v. Mower, 591 Mendenhall v. Tungate, 97, 102, 116, 398 Mendenhall's Appeal, 276, 277 Mercer v. Kelso, 110 Mercer v, Mackin, 198, 438, 441, 449 Mercer's Sviccession, 268 Merchant's Will, 204 Mercur's Estate, 695 Meredith v. Heneage, 611 Merkle's Appeal, 473 Merriam v. Simonds, 532, 545 ISIerriam's Estate, 341 Merriam's Will, 315 Merrick v. Merrick, 487 Merrill v. Bullock, 624 Merrill v. Curtis, 555 Merrill v. Emery, 719 1042 TABLE OF CASES. (References are Merrill v. Hayden, 291, 292, 611, 740 Merrill v. Preston, 515 Merrill v. Rush, 102 Merrill v. Wisconsin Female Col- lege, 6/3, 688 Merriman v. Merriman, 384 Merriman's Appeal 23, 85, 132, 386, 390, 394, 426, 430 Merritt v. Merritt, 607 Mersman v. Mersman, 691, 820 Mervin, In re, 632 Meserve v. Meserve, 142, 382, 383, 394, 397, 405, 406, 410, 417, 427, 428 Metcalfe v. Metcalfe, 684, 685 Metcalfe v. Sweeney, 534 Metropolitan Savings Bank v. Mur- phy, 56 M. E. Missionary Society v. Ely, 320, 343 Meurer's Will, 209, 210, 218 Meyer v. Eisler, 659 Meyer v. Fogg, 199, 325 Meyer v. Henderson, 321, 325, 329, 331 Meyers v. Barrow, 295 Meyers v. Smith, 312, 313 Mickle V. Matlock, 226 Midgett V. Midgett, 588 Middleditch v. Williams, 104, 105, 106, 111, 325, 423 Middleton v. Middleton, 661 Middleton, Goods of, 276 Mies, In re, 186 Milburn v. Milburn, 290 Miles's Appeal, 249, 254, 300, 301, 432, 676 Millar's Appeal, 788 Millay v. Wiley, 199, 362 Miller v. Brown, 304 Miller v. Carlisle, 524, 562 Miller v. College, 54 Miller v. Cooch, 750, 756 Miller v. Drane, 800 Miller v. Gilbert, 571 Miller v. Huddlestone, 474 Miller v. Holt, 49 to sections.) Miller v. Lake, 761 Miller v. McNeil, 222 Miller v. Miller, 333, 406, 409, 425, 427, 760 Miller v. Oestrich, 97, 112, 127, 128, 384 Miller v. Phillips, 280, 281, 284 Miller v. Potterfield, 576, 577 Miller v. Shumaker, 241 Miller v. Stepper, 137 Miller v. Swan, 313, 315, 341 Miller v. Tilton, 562 Miller's Appeal, 507, 788 Miller's Estate, 112, 321, 324, 326, 341, 424, 496 Miller's Will, 323 Millican v. Millican, 52, 53 Millikin v. Welliver, 719, 732 Millington v. Hill, 754 Mills V. Bailey, 570 Mills V. Britton, 602 Mills V. Davison, 641 Mills V. Franklin, 561 Mills V. Harris, 702, 704 Mills V. McCaustland, 717 Mills V. Millward, 261, 348 Mills V. Newberry, 610, 611 Mills V. Smith, 793 Mill's Appeal, 104 Milner, In re, 698 Milnes v. Foden, 49, 53 Milnes v. Slater, 142 Miltenberger v. Miltetaberger, 47, IGO, 192, 190 Milwaukee Protestant Home v. Becher, 25, 746 Mimms v. Delk, 689 Mims v. Macklin, 610, 615, 622, 676 Miner's Will, 506 Minkler v. Minkler, 437, 449 Minkler v. Simons, 466, 806, 807, 808 Minnig v. Batdorf, 548 Minor v. Ferris, 488 Minor v. Guthrie, 449 Minor v. Taylor, 806 Minor v. Thomas, 102 TABLE OF CASES. 1043 (References are Minot V. Baker, 507 Minot V. Harris; 515, 547 Minot V. Paine, 602 Minot V. Tappan, 547 Minot, Petitioner, 288, 292, 293 Minter's Appeal, 742 Min Young v. Min Young, 600 Mitchell V. Campbell, 676 Mitchell V. Corpening, 116, 394 Mitchell V. Donahue, 58, 130, 229 Mitchell V. Hogg, 338 Mitchell V. Kimbrough, 21, 305, 306 Mitchell V. Mitchell, 59, 205, 611 Mitchell V. Pittsburg, etc. Ry., 526, 593 Mitchell V. Thomas, 117 Mitchell V. Thorne, 527 Mitchell V. Viekers, 238, 447 Mitchell's Estate, 127, 132, 426 Mitchelson, In re, 276 Mitchener v. Atkinson, 462 Moale V. Cutting, 221, 222 Mobley v. Cummings, 616 Moerhing, In re, 577 Moflfet V. Elmendorf, 507, 543 Moffett V. Moffett, 240 Moffew V. Ry. Co., 576 Molineaux v. Reynolds, 507, 744 Monarque v. Monarque, 4^1 Mondorf's Will, 132, 411, 410 Monnsey v. Blamire, 515 Monroe v. Barclay, 132, 411 Monroe v. Liebman, 241 Monson \. New York Security & Trust Company, 602 Montague v. Allen, 98, 414 Montefiore v. Montefiore, 264 Montgomerie v. Woodley, 659 Montgomery v. Clark, 312 Montgomery v, Foster, 325 Montignani v. Blade, 514, 515, 637, 806 Moodie v. Read, 227 Moody V. Johnston, 357 ^Tnon V. Moon, 474 Moon V. Hapford, 520 to sections.) Mooney v. Olsen, 126, 450 Moore v. Alden, 774, 776, 813 Moore v. Allen, 382 Moore v. Beckwith, 755 Moore v. Blauvelt, 409 Moore v. Davidson, 755 Moore v. Davison, 803 Moore v. Dimond, 551 Moore v. Feig, 663 Moore v. Gubbins, 324, 327, 394, 423 Moore v. Hawkins, 146 Moore v. Heineke, 124, 394, 411 Moore v. King, 216 Moore v. Lyons, 650, 676 Moore v. McWilliams, 194 Moore v. Moore, 149, 152, 271, 539, 641, 651, 768, 769, 771, 803 Moore v. Perry, 672, 673 Moore v, Powell, 464, 465, 488 Moore v. Rake, 593 Moore v. Robbins, 707 Moore v. Schindehette, 676 Moore v. Spier, 216, 394, 414 Moore v. Stephens, 72 Moore v. Steele, 157 Moore v. Weaver, 551 Moore's Estate, 663 Moore, Goods of, 207 Moorehead's Estate, 591, 592, 593, 631 Moorehouse v. Cotheal, 561, 593 Moores v. Hare, 579 Moores v. Moores, 660 Mooreland v. Brady, 173 Moorhouse v. Lord, 269 Moorman v. Crockett, 788 Moran v. Moran, 461, 643 Mordecai v. Boylan, 277 Mordecai v. Schirmer, 692 Moreland v. Brady, 179, 487 Morey v. Sohier, 264, 279, 284 Morgan v. Davenport, 283 Morgan v. Dodge, 341 Morgan v. Halsey, 619 Morgan v, Holford, 143 1044 TABLE OF CASES. (References are to sections.) Morgan v. Huggins, 489, 506 Morgan v. Ingram, 192 Morgan v. Ireland, 280 Morgan v. McXeely, 142, 477, 488, 489 Morgan v. Morgan, 681 Morgan v. Robbins, 676 Morgan v. Stevens, 234 Morgan, In re, 459, 618 Moriarity v. Moriarity, 97, 382 Morison v. Turnour, 181 Morley v. Rennoldson, 462, 681 Morningstar v. Selby, 349 Morse v. Blood, 684 Morse v. Hackensack Sav. Bank, 764 Morse v. Hayden, 675, 729, 739, 742, 743, 762, 764, 777 Morse v. Lyman, 806 Morse v. Macrum, 622. 759, 803 Morse v. Morrell, 599, 602 Morse v. Morse, 295 Morse v. Scott, 105 Morse v. Sterns, 813 Morse v. Thompson, 89 Morrell v. Dickey, 53 Morris v. Bolles, 29, 513, 547, 600, 629, 633 Morris v. Clark, 79 Morris v. Garland, 773, 775 Morris v. Harris, 770 Morris v. Henderson, 477 Morris v. Morton's Ex'rs, 90, 230, 333. 397 Morris v. Sickly, 755, 817 Morris v. Stokes, 131, 424 Morris v. Swaney, 157, 434 Morrison v. Bowman, 683 Morrison v. Truby, 469, 676 Morrison v. Tourman, 203 Morrison's Estate, 546 Morrow's Appeal. 61, 62 Mortgage Trust Company v. Moore, 162, 167, 749 Morrill v. Morrill, 192 Mortimore v. Mortimore, 547. 549 Morton v. Heidorn, 366, 405, 407, 408 Morton v. Ingraham, 199 Morton v. Onion, 281, 284, 340 Morton v. Woodbury, 506, 507, 510 Morton, Goods of, 248, 249, 251, 252 Morvant's Succession, 229, 345, 377 446 Mosier v. Horman, 323, 340, 341, 366 Mosse V. Cranfield, 496 Mosser v. Lesher, 688 Mosser v. Mosser, 53, 57, 65, 93, 105 • Mount V. Van Ness, 766 Mourning v. Missouri Coal Mining Co., 681 Moushand v. Rodetsky, 562 . Mower v. Verplanke, 317, 356, 357 Mowry v. Heney, 52 Moyer v. Swygart, 47, 330, 344 Moyses v. Neilson, 325 Mudd V. Mullican, 562 Muffett, In re, 528 Muh's Succession, 249, 254 Muhlenburg's Appeal, 669 Mulilke V. Tiedemann, 684 Muir V. Miller, 423 Muirhead v. Muirhead, 737 Muldoon V. Trewhitt, 614 Mull V. Mull, 668 Mullarky v. Sullivan, 467, 551 Mullen V. McKehy, 21 Muller V. St. Louis Hospital Asso- ciation, 419 Mulligan v. Lamb, 689 Mulligan v. Leonard, 218, 233, 236, 237 Mulligan's Estate, 507, 764 Mullin's Estate. 176. 218, 389 Mullock V. Souder, 278 Mullreed v. Clark, 594, 626, 637, 662. Mulvane v. Rude, 560, 562, 595. 684 Mundorflf v. Kilbourn. 79 Mundy v. Mundy. 21, 203. 218. 222. 223, 226, 227, 247, 255, 261. 281 Murdock v. Bridges, 56 TABLE OF CASES. 1045 (References are to sections.) Murfett V. Smith, 94 Mur field, In re, 311 Murphey v. Whitney, 75 Murphree v. Senn, 382, 384, 386, 390 Murphy v. Carlin, 59, 612 Mtirphy v. McKeon, 738, 739 Murphy's Estate, 269, 619, 643, 649 Murray v. Murphy, 217 Murray v. Murray, 773 Murray, Goods of, 314 Murry v. Hennessy, 176, 325, 370, 382 Murry v. Murry, 21 Mussoorie Bank v. Raynor, 611 Musther, In re, 546 Mutler's Estate, 462 Mutual Life Insurance Co. v. Ship- man, 698 Myatt V. Walker, 397 Myers v. Hauger, 96, 409 Myers v. Myers, 138, 773, 775 Myers v. Norman, 488 Myers v. Vanderbilt, 159 N Nading v. Elliott, 597, 606 Naglee's Appeal, 684 Naglee's Estate, 476 Nailing v. Nailing, 133 Namioc'k v. Horton, 141, 142 Napfle's Estate, 102. 117 Napier v. Anderson, 346 Napier v. Davis, 472 Nash V. Ober, 602, 773 Nash V. Reed. 199 Nash V. Simpson, 571, 681 Nat V. Coons, 32 Nathan v. Hendricks, 663 National Bank of Commerce v. Smith, 619 National Bank v. Wheelock, 133 National Safe Deposit, etc. Com- pany V. Sweeney. 329 Naugher v. Patterson, 53 Nauman v. Weidman, 651 Naylor v. Godman, 676 Neal V. Hodges, 522 Nealis v. Jack, 595 Nebinger's Estate, 466 Needham v. Needham, 219 Needham v. Rourke, 219 Needles v. Needles, 146 Neel V. Potter, 423 Neeley v. Boyce, 576, 659 Neeley's Estate, 513, 515, 597 Neely v. Phelps, 616 Neer v. Cowhick, 230 Neff V. Nef}', 602 Neff's Appeal, 269, 306, 507 Negley v. Gard, 462 Negus V. Negus, 287 Neil V. Neil, 117, 210 Nellons v. Truax, 752 Nelson v. Biue, 515, 669 >lelson V. Brown, 713 Nelson v. Combs, 473, 676 Nelson v. Gushing, 642 Nelson v. Kownslar, 716 Nelson v. ]SJelson, 599, 604 Nelson v. Ponicroy, 509, 669, 735 736 Nelson v. Potter, 28, 357 Nelson v. Russell, 659, 664, 676 Nelson v. Whitfield, 444 Nelson v. Worthington, 792 Nelson, Goods of, 276 Nelson's Will. 205, 218, 267, 375, 377, 410 Nes V. Ramsay, 572, 594 Nesbit V. Wood, 758 Ness V. Davidson, 689, 691 Neuber v. Shoel, 139 Neville v. Dulaney, 2, 474, 535 Nevin's Estate, 597 Newberry v. Hinman, 658 Newcomb v. Newcomb, 97, 385, 390 Newcomb v. Webster. 268, 269 Newconib's Will, 755 Newell V. Hancock, 686 Newell V. Homer, 434 Newell V. Nichols, 674 1046 TABLE OF CASES. (References are to sections.) New England Mortgage Security Co. V. Buice, 575, 603 Kew England Trust Company v. Pitkin, 600 Newhard v. Gundt, 383 Newman v. Clyburn, 480 Newman v. Steel Co., 357 New Orleans v. Hardie, 461, 744 Newport v. Newport, 762 Newport Bank v. Hayes, 668 Newport Water Works v. Sisson, 700, 708 Newsonie v. Bowyer, 89 Newson v. Holesapple, 676 Newton v. Field, 81 Newton v. Society 162, 166 Newton v. Stanley, 770 New York Life Ins. etc. Co. v. Liv- ingston, 698 N. Y. L. & W. R. Co., In re, 676 Nicewander v. Nicewander, 97, 104, 132, 368, 385 Nichols V. Allen, 141 Nichols V. Boswell, 676, 817 Nichols V. Chandler, 49, 53 Nichols V. Eaton, 685 Nichols V. Emery, 49, 52 Nichols V. Lancaster, 716, 776 Nichol's Estate, 321 Nicholas v. Kershner, 23 Nicholls V. Nicholls, 47 Nicholls V. Osborn, 492 Nicholson v. Commissioners of Dare County, 801 Nicholson v. Cousar, 663, 665 Nicholson v. Drennan, 468 Nickerson v. Bragg, 773 Nickerson v. Buck, 173, 203, 205, 372, 373 Nicrosi v. Phillipi, 150 Nieman v. Schnitker, 94, 333, 385, 400 Nightingale v. Burrell, 466, 594 Niles V. Alray, 555 Niles V. Gray, 561, 562, 594 Nimmons v. Westfall, 689, 720, 732 Nixon V. Armstrong. 193, 196 Nixon V. Bobbins, 669 Noble V. Ayres, 474 Noble V. Burnett, 199 Noble V. Enos, 93 Noble V. Teeple, 589, 590 Noble's Estate, 597 Noble, In re, 191, 196, 199 Nock V. Nock, 212 Nolan V. Gardner, 234 Norcott V. Gordon, 776 Norris v. Clark, 73, 476 North Carolina School v. North Car olina Institute, 645 Northcutt V. Northcutt, 173, 178, 179 Nor they v. Paxton, 478 Norton v. Paxton, 102, 127, 382 Norway Savings Bank v. Merriam, 56 Norwood V. Mills, 743 Nottage, In re, 054, 768, 769 Nourse, In re, 681 Nowack V. Berger, 70, 73, 75, 780 Nowland v. Welch, 594 Noyes v. Southworth, 284 Noyes's Will, 264, 265, 277, 450 Nueber v. Shoel, 23 Nunn V. O'Brien, 574, 611 Nussear v. Arnold, 424 Nutt V. Norton, 283. 284 Nutter V. Vickerv, 532, 742 Oades v. Marsh, 497 Oakley v. Taylor, 312, 315 Ober V. Hickox, 544 Obert V. Hammel, 341 O'Brien v. Dougherty. 589, 750 O'Brien v. Dwyer, 116 O'Brien v. Gallagher, 222 O'Brien v. Spalding, 97. 364 O'Byrne v. Feeley, 566 Occleston v. FuUalove, 156 O'Connor v. Gifford, 650 O'Connor v. Madison, 102, 333. 390 Odell V. Odell, 640, 641, 642 TABLE OF CASES. 1047 (References are to sections.) O'Dell V. Rogers, 312 Odenwaelder v. Shorr, 205, 227, 269 O'Donnell v. Rodiger, 382, 384 Offut V. Divine, 695 Offut V. Offut, 236 Ogier's Estate, 46 Ogle V. Reynolds, 491, 692 Ogle V. Tayloe, 755 Ogle's Estate, 49, 52 Ogsbury v. Ogsbury, 487 O'Hagan, Will of, 372 Oldham v. York, 466, 485 Olding, Goods of, 222 Old South Society v. Crocker, 639, 643 Olerick v. Ross, 223 Oliffe V. Wells, 168 Olliver, In re, 219 Olmstead v. Webb, 126, 323, 428 Olmstead's Estate, 249, 254, 256, 276, 344, 345, 448, 449, 450 Olney v. Balch, 690 OIney v. Lovering, 513 O'Loughlin, Goods of, 478 Onderdonk v. Onderdonk, 809 O'Neall V. Boozer, 473 O'Neal V. Caulfield, 643, 645, 647 O'Neall V. Farr, 125, 411 O'Neil V. Mead, 765 O'Neil V. Smith, 234 O'Neil's Estate, 58 O'Neil's Will, 164 O'Neill V. Owen, 203 O'Neill V. Smith, 234, 306 O'Neill's Will, 162, 186 Onions v. Tyrer, 260, 275 Opel V. Shoup, 151, 681 Orchardson v. Cofield, 96, 104, 108, 111, 126, 128, 420 Ordway v. Dow, 548 Oregon Moitgage Co. v. Carsters, 150 Orgain v. Irvine, 47, 157, 171, 188, 264 Ormsby v. Webb, 338, 386 O'Rourk V. Sherwin, 572 Orr V. Moses, 462 Orr V. Orr, 820 Orser v. Orser, 374 Orth V. Orth, 74, 124, 410 Orton's Trust, 526 O'Rourke v. Beard, 561 O'Rourke v. Sherwin, 691, 692 Osborn v. Bank, 292 Osborn v. Cook, 223, 227 Osborn v. Damniert, 21, 35 Osborne v. Davies, 330 Osborne v. Leak, 312 Osgood v. Bliss, 284 Osgood V. Breed, 85, 90, 91, 93 Osterman v. Baldwin, 150 Otis V. Brown, 209 Otis V. Dargon, 319 O'Toole V. Brown, 473, 507 Otterbach v. Bohrer. 524, 631 Otto V. Doty, 111 Otway V. Sadleiv, 281 Ouachita Baptist College v. Scott, 110, 325, 397 Ould V. Washington Hospital, 640, 641 Ousley V. Anstruther, 492 Ousley V. Witheron, 385 Outland v. Outland, 751 Overby v. Gordon, 330, 341, 370 Overall v. Bland, 130 Owen V. Bryant, 156 Owen v. Eaton, 656, 668, 669 Owen V. Smith, 52 Owen, In re, 196, 495 Owens V. McNally, 70, 79 Owens V. Sinklear, 329 Owens V. Williams, 32 Owings' Case, 113 Owston, Goods of, 117 Oxford, Earl of, v. Churchill, 524 Oyster v. Knull, 59, 612 Oyster v. Orris, 574 1048 TABLE OF CASES. (References are to sections.) Packard v. Packard, 659 Pack V. Shanklin, 48, 457, 460 Packer v. Packer, 21 Paddleford's Estate, 206, 269, 277, 364, 448 Page V. Eldredge Public Library Association, 719, 768, 775 Page V. Foust, 478 Page V. Leapiiigwell, 774 Page V. Page, 240 Page's Estate, 28, 34 Page, In re, 366, 437, 438, 441 Page's Will, 237 Paget V. Melcher, 669 Paine v. Forsaith, 142, 265, 279, 489 Paige V. Brooks, 249 Paisley's Appeal, 613 Palethorp v. Palethorp, 566 Palmer v. Dunham, 546 Palmer v. Horn, 522, 526 Palmer, In re, 507 Palmer v. Palmer, 240 Palmer v. Union Bank, 629, 632, 645 Panaud v. Jones, 199 Parish v. Ferris, 594 Paris V. Winterburn, 684 Park V. American Home Missionary Society, 576. 696 Parker v. Churchill, 545, 631, 640, 641 Parker v. First National Bank, 759 Parker v. Hayden, 712 Parker v. Parker, 312, 324, 470, 675. 710 Parker v. Johnson, 602 Parker v. Lamb, 278 Parker v. Seeley, 602, 609, 689, 719 Parker v. Stephens, 49 Parker v. Leach, 548, 551 Parker v. Linden, 707 Parker, In re. 25, 532, Parkison v. Parkison, 234 Parks V, Kimes, 470 Parnell v. Parnell, 611 Parramore v. Taylor, 215 Parrot v. Avery, 494 Parrott v. Graves, 77 Parry's Estate, 495 Par sell v. Stryker, 79 Parsons v. Freeman, 278 Parsons v. Lanoe, 02 Parsons v. Parsons. 401, 423 Partridge v. Cavender, 685 Paschal v. Acklin, 23 Paske v..Onat, 414 Pastene v. Bonini, 511 Patch V. White, 487, 544 Patchen v. Patchen, 546 Pate V. French, 563, 676, 814 Pate V. Pate, 146 Paton V. Ovmerod, 267, 820 Patrick's Estate, 555 Patrick v. Simpson, 475 Patten v. Cilley, 330, 382, 387, 408, 416, 428, 807 Patten v. Herring, 685, 763, 759 Patten v. Tallman, 192, 199 Pattee v. Stetson, 325 Patterson v. Earhart, 676 Patterson v. Hawthorne, 515, 668 Patterson v. Hickey, 437 Patterson v. Lamb, 423 Patterson v. Madden, 566, 662, 674 Patterson v. Patterson, 752 Patterson v. Ransome, 216, 217 Patterson v. Read, 473 Patterson's Appeal, 467 Patterson's Estate, 688 Patton V. Church, 373 Patton V. Hope, 47 Patton V. Ludington, 742 Patton V. Patton, 21 Patty V. Goolsby, 576 Pawtucket v. Ballou, 215 Paxton V. Bond, 696 Payne v. Banks, 382 Payne v. Johnson, 576, 698 Payne v. Parsons, 308 Payne v. Payne, 139, 217, 218 TABLE OF CASES. 1049 (References are Peacock v. Monk, 92 Peake v. Jenkins, 174, 190, 217 Pearce v. Rickard, 526, 553 Pearce, In re, 142, 489 Pearl v. Lockwood, 678 Pearn, Goods of, 183 Pearsol v. Maxwell, 566 Pearson v. Wartman, 755 Pearson's Estate, 229, 487, 691 Pearson, Goods of, 351 Pease v. Allis, 192, 200 Peck V. Carlton, 546 Peck V. Cary, 112, 114, 205, 218, 385 Peck's Appeal, 273, 277 Peckham v. Lego, 488, 575, 576, 696 Pedrick v. Pedrick, 685 Peebles v. Acker, 755, 756 Peebles v. Bunting, 138 Peebles v. Stevens, 401 Peery v. Peery, 127, 133, 410, 423, 424, 428 Peet's Estate, 758 Pegg V. Warford, 329 Peirce v. Hubbard, 572 Peirce v. Peirce, 689 Peirsol v. Poop, 477, 597 Pell V. Mercer, 648 Pelley v. Earles, 55 Pellew V. Horsford, 493 Pellizzaro v. Reppert, 59, 462, 575. 577, 611, 613. 684, 722 Pemberton v. Barnes, 147 Pemberton v. Pemberton. 728 Pena v. New Orleans, 229 Pence v. Pence, 704 Pence v. Waugh, 388 Pendergast v. Tibbetts, 269 Pendergest v. Heekin, 138 Pendlay v. Eaton, 382 Pendleton v. Bowler, 491, 574, 618, 676 Pendleton v. Kinney, 541, 598, 640, 641. 760 Pendleton v. Larrabee, 269, 467 Penfield v. Tower. 34, 35, 635, 689 Penhallow v. Kimbnll, 719 Penick v. Thorn, 647 to sections.) Peninsular Trust Co. v. Barkeir, 97, 108 Penney's Estate, 554 Penniman, Goods of, 254 Pennington v. Pennington, 806 Pennington v . Van Houten, 462, 676 Pennock's Estate, 574, 611 Pennoyer v. Wadhams, 639, 64.3, 649 Pennsylvania Company for Insur- ance V. Leggate, 689 Pen. Trust Co. v. Barker, 422 Pennsylvania Co.'s Appeal, 658 Penny v. Croul, 441, 641, 644, 646, 652 Penstock v. Wentwortli, 138 Pensyl's Estate, 127, 331, 409, 426 People, ex rel, Ellert v. Cogswell, 639, 643, 645 People v. Lease, 718 People V. Powers, 22, 610, 619, 043, 644 People V. Simonson, 626, 640 People's Loan & Exchange Bank v. Garlington, 615 Pepper v. Broughton, 199 Pepper v. Thomas, 137 Pepper v. Warrington, 595 Pepper's Estate, 28, 314, 315, 640, 794 Percy, In re, 619 Perdue v. Perdue, 751 Pero-ason v. Etcherson, 385, 386 Perkins v. Fisher, 630, 745 Perkins v. George, 21 Perkins v. Jones, 230 Perkins v. Little, 137 Perkins v. Perkins, 382, 383 Perkins v. Stearns, 554, 573 Perkins v. Windham, 196 Perkin's Estate, 361 Perkins, In re, 691 Perrett v. Perrett, 126, 128, 131, 424, 428 Perrin v. Blake, 564 Perrine's Case, 117 Perry v. Bftwman, 570 Perry v. Hunter, 146 1050 TABLE OF CASES. (References are to sections.) Perry v. Moore, 422, 423 Perry v. Perry, 348 Perry v. Phelips, 143, 14G Perry v. Sweeny, 312 Petefish v. Becker, 96, 105, 106, 108, 333, 391, 394, 400 .Peters v. Siders, 287, 288 Peterson v. Beach, 548 Petit V. Flint, etc. Ry. Co., 691 Petre v. Petre, 774 Peverly v. Peverly, 800 Pfarr v. Belmont, 242 Pfingst V. Dol finger, 695 Pflugar V. Pultz, 79 Phalen's Will, 405 Phaup V. Wooldridge, 283, 284 Phayer v. Kennedy, 457, 461, 659, 664 Phelps V. Bates, 676 Phelps V. Hartwell, 401, 424 Phelps V. Lord, 043 Phelps V. Bobbins, 162, 166 Phelps V. Simon, 624 Philadelphia v. Girard's Heirs, 62'! Philadelphia v. Keystone Battery. 653 Philadelphia Baptist Association v. Hart, 643 Philadelphia Trust, etc. Co. v. Isaac, 512 Philbrick v. Spangler, 230 Philleo V. Holliday, 461 Phillips V. Clark, 758, 760 Phillips V. Ferguson, 528, 081 Phillips V. Moore, 150 Phillips V. Harrow, 642, 643, 644, 646, 647 Phillips V. Herron, 569, 628, 633 Phillips V. McConica, 743 Phillips V. Phillips, 346 Phillip's Estate, 771, 773 Phillips, In re, 205, 224, 226, 228 Phinizy v. Foster, 548 Phipp V. Anglesy, 269 Phipps V. Hope, 70 Piatt V. Sinton, 561, 562, 594 Pickens v. Davis, 273, 27^, 310, 437, 450, 454 Pickering v. Langdon, 278 Pickering v. Stamford, 736 Pickett V. Leonard, 485 Pickworth, In re, 656 Picquet v. Swan, 90 Pidcock V. Potter, 94, 108, 389, 390 Pierce v. Gardner, 760 Pierce v. Pierce, 112, 233, 240, 410, 734 Pierce v. Simmons, 562, 695 Pierce's Estate, 607 Piercy, In re, 28, 214, 691 Pierpont V. Patrick, 267 Piersol v. Roop, 597, 693 Piflfard's Estate, 169 Pigg V. Clarke, 528 Pike V. Stephenson, 549, 638 Pike's Will, 418 Pilcher v. Hole, 269 Pilkin V. Peet, 599 Pilkington v. Gray, 374 Pinckney v. Pinckney, 736 Pingrey v. Ins. Co. 136 Pinkham v. Blair, 467, 547 Pinkham v. Pinkham, 52, 53 Pinhorne, In re, 741 Pinney v. Newton, 463, 466,. 614 Piper V. Moulton, 199, 651 Pitkin V. Peet, 754 Pitt's Estate, 98 Piatt V. Mickle, 513, 561 Piatt V. Withington, 688 Plate's Estate, 173 Pleasant's Appeal, 278, 669 Pleasanton's Estate, 72 Plume V. Howard Savings Institu- tion, 341 Pocock V. Redinger, 487, 819 Pollock V. Farnham, 744 Pollock V. Glassell, 217 Pollock V. Speidel, 564, 569 Pomeroy v. Benton, 434 Pond V. Sheean, 75 Pool V. Buffum, 173, 178, 179 Poole V. Anderson, 693 Poole V. Poole, 576 Poole V. Richardson, 393 TABLE OF CASES. 1051 (References are Pooler V. Cristman, 130, 132, 385, 386, 397, 426, 428 Poor V. Considine, 656, 659, 663 Poor V. Robinson, 144 Poore V. Poore, 53, 190 Pope V. Elliott, 085 Pope V. Pope, 307, 308 Pope V. Sullivan, 691 Porschett v. Porsghett, 411 Porter v. Dunn, 78 Porter v. Ford, 226 Porter v. Gaines, 485 Porter v. Howe, 771, 772, 773. 708 Porter v. Jackson, 754 Porter v. Throop, 428 Porter v. Tourney, 492 Porter's Appeal, 236, 788 Porter's Estate, 216, 227 Porter, Goods of, 62 Porter, In re, 684 Porter's Will, 205, 227 Porterfield v. Porterfield, 692, mZ Portland, Countess of, v. Prodgers, 89 Portland Trust Company v. Beatie, 485 Portuondo's Estate, 737 Posegate v. South, 598 Post V. Jackson, 556 Post V. Mason, 405, 414 Post V. Rohrbach, 583 Potter V. Brown, 288, 293, 774 Potter V. Couch, 562, 618, 630, 631, 684, 745 Potter V. Jones, 104, 106, 108, 312 Potter V. Ranlitt, 689 Potter V. Titcomb, 28 Potter's Will, 256, 388, 400, 424 Potts V. Breneman, 692 Potts V. Felton, 221, 223 Potts V. House, 47, 103, 109, 117, 125, 389, 390 Potts V. Jones, 106 Potts V. Kline, 574 Powell V. Demming, 806 Powell V. Hatch, 643 Powell V. Koehler, 321, 342 Powell V. Powell, 21, 259. 276, 278 to sections.) Powell V. Roake, 698 Powell's Estate, 799 Powell, Goods of, 187 Powell, In re, 629, 631 Power V. Hafley, 73 Power V. Jenkins, 755 Power, In re, 764 Powers V. Bullwinkle, 662 Powers V. Codwise, 746 Powers V. EgelhoflF, 669, 739 Powers' Ex'r v. Powers, 333, 386 Pratt V. Doughlass, 28, 575 Pratt V. Hargreaves, 313, 329, 368 Pratt V. Pratt, 138 Pratt V. Shepard, etc. Hospital, 574, 611 Pratt V. Taliaferro, 702 Pratt, In re, 769 Prather v. McClelland, 96, 97, 315. 323, 385, 400 Pratte v. Coffman, 400 Prendergast v. Walsh, 768 Prentis v. Bates, 110, 382, 389, 390, 395, 405 Prentiss v. Prentiss, 287 Presbyterian Church v. Venable, 147 Preseott v. Prescott, 744 Pres. Board of Foreign Missions v. Culp, 573 President, etc. of Bowdoin College V. Merritt, 42, 49, 52 Preston v. Fidelity, etc. Co., 323 Preston v. Trust Co. 343 Price V. Cole, 463 Price V. Douglass, 789 Price V. Hutchins, 476 Price V. Jones, 54 Price V. Maxwell, 267, 269, 277 Price V. Powell, 249, 252 Price V. Price, 248, 750 Price, In re, 93 Pride v. Bubb, 91 Prideaux v. Gibbon, 143 Priest V. Lackey. 485, 487, 819 Prigden v. Prigden, 219 Primmer v. Primmer, 101 Prince v. Hazelton, 2.32, 2.34, 244 1052 TABLE OF CASES. Pringle v. McPherson, 251, 254, 260, 273, 276 Prior V. Pendleton, 326 Pritehard v. Pritchard, 496 Pritchard v. Walker, 461, 462 Pritchard's Will, 237 Pritchitt V. Trust Co., 602 Probate Judge v. Page, 802 Proctor V. Clark, 31, 34, 546 Proctor's Estate, 576, 712, 721 Proctor, In re, 576 Prosser v. Hardesty, 462, 470, 676 Protestant Episcopal Education So- ciety V. Churchman, 643 Protestant Orphan Asylum v. Su- perior Court, 324 Prowitt V. Rodman, 524 Pruden v. Pruden, 142, 489, 59G, 817 Pruitt V. Holland, 676 Pryer v. Mark, 750, 752 Pryor v. Coggin, 247, 255 Pryor v. Pendleton, 723 Pryor v. Pryor, 219 Puddephatt, Goods of, 183 Pugh V. Pugh, 522 Purdy's ^Vill, 375 Purnell v. Reed, 137, 138 Purviance v. Purviance, 72, 81 Purvianee v. Shultz, 78 Pusey V. Wathen, 793 Putnam v. Gleason, 656 Putnam v. Pitney, 356 Putnam v. Story, 656, 662 Putt V. Putt, 333, 344 Putters V. Dawson, 150 Pye, Ex parte, 783 Pyle V. Pyle, 400 Pyle, In re, 482 Pym V. Lockyer, 783 Q Quackenbush v. Ehle, 74 Quick V. Quick, 441 Quigley v. Birdseye, 150 (References are to sections.) Quincy v. Attorney General, 154, 462, 465, 686 Quisenberry v. Watkins Land Mort- gage Company, 691 R Raeonillat v. Sansevain, 150 Radcliflfe v. Buckley, 524 Radl V. Radl, 138 Raine, Goods, of, 249 Raine, In re, 66, 68 Raines v. Barker, 142 Raleigh, etc. Ry. Co. v. Glendon, 371 Ralph V. Carrick, 468 Ralph V. Watson, 4G8 Ralston v. Truesdell, 566 Rambler v. Tryon, 400 Ramsdell v. Ramsdell, 684 Ramsdill v. Wentworth, 291, 293, 294 Ramsey v. Ramsey, 230 Ramsey v. Stephenson, 557 Rand v. Butler, 466 Rand v. Hubbell, 602 Rand's Estate, 230 Randall v. Beatty, 273 Randall v. Randall, 59, 611, 613, 737 Randall v. Willis, 79 Randolph v. Hughes, 337 Randolph v. Lampkin, 131 Randolph v. Randolph, 802 Rankin v. Rankin, 389, 410 Ransdell v. Boston. 675, 681 Ransome v. Connelly, 281 Rapp V. Reehling, 820 Rasberry v. Harville, 624 Rathbone v. Hamilton. 93, 692 Ratliff V. Warner, 598 Raudebaugh v. Shelly, 203. 205, 216, 218, 330 Ravenscroft v. Hunter, 433 Rawlin's Trust,- 468 Rawlings v. Jennings, 478 TABLE OF CASES. 1053 (References are to sections.) Rawlings v. McRoberts, 52 Kawling's Estate, 737 Rawlings, Goods of, 268 Eawson v. Rawson, 512 Hay V. Hill, 117, 173, 214 Ray V. Ray, 423 Ray V. Stauliope, 785 Ray.v. Walton, 266 Raynolds v. Hanna, 685 Rea V. Bell, 631 Read v. Fogg, 656 Read v. Manning, 269 Read V. Williams, 643, 707, 808 Readman v. Ferguson, 28, 755, 808 Reagan v. Stanley, 57, 58 Reams v. Span. 662 Rebman v. Bierdorf, 671 Rebman v. Dierdorf, 666 Record v. Fields, 557, 558 Redding v. Rice, 503, 681 Redding, In re, 172 Eedfield V. Redfield, 269, 758 Redfield's Estate, 104, 108, 329 Redford v. Redford, 481 Redman v, Barger, 581 Redmond v. Burroughs, 521 Redmond v. Collins, 317 Reed v. Blaisdell, 89 Reed v. Buckley, 669 Reed v. Corrigan, 776 Reed v. Davis, 622 Reed v. Hazelton, 49, 55 Reed v. Roberts, 210, 211 Reed V. Talley, 138 Reed V. Watson, 189, 203, 222 Reed v. Woodward, 159 Reed's Will, 102 Reen v. Wagner, 515 Rees V. Rees, 161 Rees, In re, 739 Reese v. Cochran, 93 Reese v. Hawthorne, 234, 23r> Reese v. Nolan, 319, 320, 325, 335 Reese v. Portsmouth Probata Court, 264, 277 Reeves v. Brymer, 524 Reeves v. Reeves, 643 Reformed, etc. Church v. Nelson, 324 Regers' Estate, 676 Reichard's Appeal, 269 Reichenbach v. Ruddach, 85, 98, 112, 126, 130, 394, 395, 411, 412 Reid V. Borland, 264, 273, 277 Reid V. Corrigan, 755 Reid V. Hancock, 473 Reid V. Walbach, 474, 482, 502, 665 Reid V. Vanderheyden, 325 Reid, Goods of, 311 Reilly V. Union Protestant Infirm- ary, 461, 538, 539 Reimensnyder v. Gans, 25 Reimer's Estate, 478 Reinhardt's Estate, 467 Remington v. Bank, 22, 45, 56, 171 Renaud v. Pageot, 424 Reno v. Davis, 461 Renton's Estate, 325, 743 Renz V. Drury, 81 Reville v. Dubach, 732 Rex V. Bettefworth, 89 Reynolds v. Adams, 400 Reynolds v. Reynolds, 117, 210, 214 Reynolds v. Robinson, 796 Reynolds v. Shirley, 309 Reynold's Estate, 570, 598 Reynolds, In re, 478, 492, 494 Rhode Island Hospital Trust Com- pany V. Harris, 555, 600, 704 R. I. Hospital Co. v. Peckham, 5.50 Rhode Island, etc. Trust Co. v. Com- mercial National Bank, 576 Rhodes V. Rhodes, 75, 79, 614, 643 Rhodes v. Vinson, 257 Rhodes v.Weldy, 287, 288, 289, 292. 293 Rhodes's Estate, 269, 626 Rhorer v. Stehman, 170 Rhoton V. Blevin, 291, 292, 293 Rhyne v. Torrence, 576 Rice v. Hosking, 339 Rice v. Moyer, 570, 574 Rice V. Rice, 108, 115, 402 1054 TABLE OF CASES. (References are to sections.) Rice V. Tavernier, 691 Rice's Estate, 331, 374 Rice, Goods of, 185 Rich V. Cockell, 92 Rich V. Gilkey, 257 Richards v. Mollis, 734 Richards v. Humphreys, 308 Richards v. Richards, 678, 712, 725 Richardson v. Bowen, 771 Richardson v. Green, 315, 320, 323, 340 Richardson v. Hall, 492, 771, 773. 776 Richardson v. Martin, 513 Richardson v. Penicks, 662 Richardson v. Richardson, 362, 807 Richardson v. Wheatland, 656 Richardson v. Willis, 269, 462, 545 Richardson's Estate, 58 Richardson, In re, 46, 48 Richerson, In re, 700, 707, 708 Richey v. Johnson, 556, 656 Richmond's Appeal, 410, 411, 413, 414 Richter v. Bohnsack, 22, 23, 138 Rickards v. Gray, 676 Rickner v. Kessler, 562 Ridenbaugh v. Young, 346 Ridgeway v. Lanphear, 520, 561 Ridley v. Ridley, 74 Ridley v. Coleman, 236 Riegelman, In re, 765 Rigg V. Wilton, 330, 366 Riggan v. Lamkin, 663 Riggs V. Cragg, 812 Riggs V. Myers, 487, 819 Riggs V. Palmer, 687 Riggs V. Riggs, 213, 214 Right V. Price, 209 Riker v. Cornwell, 507 Riley v. Allen, 72, 76, 79 Riley v. Riley, 174. 177, 178, 220 Riley v. Sherwood, 96, 102, 125, 127, 128, 130, 131, 133, 334, 399, 405 Ringquist v. Young, 548 Risse V. Gasch, 377, 379 Ritchie v. Ritchie, 697 Ritter's Appeal, 52 Ritter's Estate, 597, 668 Rivard v. Rivard, 108, 128, 131, 333, 385, 428 Rivers v. Rivers, 70, 73, 462, 741, 751 Rixey v. Deitrick, 624 Rixey v. Stuckey, 543 Rixner's Succession, 151 Roane v. Hollingshead, 284 Robb v. Robb, 480 Bobbins v. Bobbins, 209, 226, 228 Robbins v. Swain, 783 Robeno v. Marlatt, 340 Roberts v. Abbott, 327 Roberts v. Coleman, 49 Roberts v. Cooke, 507 Roberts v. Hall, 72, 75 Roberts v. Lewis, 576 Roberts v. Phillips, 223 Roberts v. Roberts, 571 Roberts v. Round, 254 Roberts v. Ruffin, 499 Roberts v. Stevens, 684, 685 Roberts v. Trawick, 400 Roberts v. Welch, 203, 216, 227, 370 Robert's Estate, 749 Robertson v. Barbour, 28 Robertson v. Hardy, 570. 580, 595 Robertson v. Johnson, 471 Robertson v. Junkin, 754 Robertson v. Pickrell, 312, 313, 315 Robertson v. Robertson. 576 Robertson's Succession. 220, 2.30 Robeson v. Shotwell, 462, 575. 576 Robins v. Coryell, 174, 204 Robins v. Quinliven, 526 Robinson v. Adams, 104, 107, 111. 388, 393 Robinson v. Allison, 692 Robinson v. Brewster, 53, 173, 223, 366, 373 Robinson v. Finch, 562. 597 Robinson v. Greene, 802 Robinson v. Hutchinson. 423 Robinson v. Ingram, 52 Robinson v. King, 210 TABLE OF CASES. 1055 (References are Robinson v. Ostendorflf, 560, 615, 084 Robinson v. Palmer, 466 Robinson v. Randolph, 560 Robinson v. Robinson, 115, 572 Robinson v. Stuart, 127 Robinson v. Sykes, 526 Robinson v. Waddelow, 528 Robinson's Estate, 331, 568 Robinson, In re, 649 Robnett v. Ashlock, 61, 62 Robson, In re, 494 Rochester, City of, In re, 764 Rocke V. Roeke, 802 Rock Island & Peoria Ry. Co. v. Dimick, 73 Rockwell V. Bradshaw, 543, 807 Rockwell V. Swift, 147, 488, 507, 587, 680 Rockwell's Appeal, 405 Rodenfels v. Schuman, 575 Roderigas v. East End Savings ■ Institution, 341 Rodgers v. Rodgers, 209 Rodney v. Landeau, 572 Roe V. Nix, 115 Roe V. Sheffield, 548 Roe V. Vingut, 462, 463, 465, 473, 491 Roelke v. Roelke, 313 Rogers v. Bayley, 482 Rogers v. Diamond, 209, 216 Rogers v. Maguire, 788 Rogers v. Rogers, 424, 462, 470 Rogers v. Strobach, 542 Rogers v. Winklepleck, 574 Rogers, Appellant, 65 Roger's Estate, 325, 638 Rogge's Succession, 28 Rohe's Will, In re, 111. Rohn V. Odenwelder, 760 Rohrer v. Stehman. 188 Roller V. Kling, 97, 98, 382, .?84, 401 Rollwagen v. Rollwagen, 47, 12G, 430 Romaine v. Hendickson, 660 to sections.) Rood V. Hovey, 669 Rook V. Wilson, 173, 179, 487 Roome v. Phillips, 659 Roosevelt v. Thurnian, 684 Root's Estate, 531, 538, 820 Root's Will, 756 Rootes, In re, 515 Rosborough v. Hemphill, 466, 820 Rosborough v. Mills, 807 Rose V. Allen, 219 Rose V. Eaton, 573 Rose V. Hale, 472, 571 Rose V. Hatch, 610, 696 Rose V. Quick, 57 Rosenau v. Childers, 570, 572, 582 Rosenbaum v. Garrett, 31, 35 Rosenburg v. Frank, 509 Rosher, In re, 684 Ross V. Ewer, 91 Ross V. Kiger, 473, 819 Ross V. McQuiston, 394 Ross V. Ross, 31, 142, 526, 529, 561, 562, 645, 647 Ross, Ex'r, V, Kiger, 558 Rosser v. Franklin, 173, 204, 222.. Rossetter v. Simmons, 188 Rotch v. Emerson, 619 Rotch V. Loring, 507 Rotch V. Rotch, 547 Rote V. Stratton, 315 Rote V. Warner, 614, 774 Roth V. Michalis, 53 Roth's Succession, 230 Rothrock v. Rothrock, 101, 116, 312 Rothwell V. .Jamison, 335 Roulette v. ISIulherin, 323 Roundtree v. Dickson, 697 Roundtree v. Roundtree, 546, 550, 551, 613 Roush V. Wensel, 159, 390, 401 Rowe V. White, 598 Rowe, In re, 498 Rowland v. Evans, 312 Rowland's Estate, 556, 668 Rowley v. Sanns, 576, 583, 732 Rowman v. Oram, 684 Rowson's Estate, 331 1056 TABLE OF CASES. ( References are to sections.) -Roy V. Monroe, 507, 700, 706, 707, 444 Roy V. Rowe, 560, 561 Roy V. Roy, 230 Royer's Estate, 25, 154, 645 Royle V. Harris, 187 Rozell V. Thomas, 597 R. R. V. Wasserman, 282, 292 Rubbins, In re, 579 Ruch V. Rock Island, 147 Rucker v. Lambdin, 199, 210 Ruckle V. Grafflin, 142, 478, 489 Rudisill V. Rodes, 274 Rudy V. Ulrich, 132, 264, 277, 411 Rudy's Estate, 578, 579 Ruffin V. Ruffin, 492 Ruffino's Estate, 105, 120, 411, 427 Rugely V. Robinson, 528 Rugg V. Rugg, 223, 362 Ruggles V. Randall, 512, 515, 545, 547, 551, 561 Rumph V. Hiatt, 314 Rumsey v. Otis, 773 Runyan v. Price, 330, 392, 393, 405 Rupp V. Eberly, 547 Rush County Commissioners v. Din- widdie, 506, 641, 644, 648 Rusk V. Zuck, 474, 576 Rusling V. Rusling, 414 Russell V. Agar, 73, 79 Russell V. Allen, 626, 640, 641, 643 Russell V. Jackson, 388 Russell, Goods of, 281 Russell, In re, 629 Ruth V. Oberbrunner, 655 Rutherford v. Mayo, 137 Rutherford v. Morris, 389, 400, 405, 426 Ryan v. Egan, 151 Ryan v. Mahan, 697 Ryan v. Martin, 823 Ryerson, In re, 598 Rymer, In re, 645 Rymes v. Clarkson, 159 Sadler v. Sadler, 234, 240 Sager v. Galloway, 656 Saint V. Charity Hospital, 243 St. George's, etc. Society v. Branch, 649 St. John V. Dann, 566, 569, 578, 594, 631, 664, 685 St. John's Parish v. Bostwiek, 49 St. Joseph's Convent of Mercy v. Garner, 94, 100, 357 St. Leger's Appeal, 97, 126, 318, 320, 333, 413 St. Louis Hospital v. Wegman, 173, 179 St. Louis Hospital v. Williams, 158, 173, 179 St. Margaret's Hospital v. Pa. Com- pany, 484 St. Paul's Church v. Attorney Gen- eral, 646 Sale V. Moore, Oil Salmon's Estate, 820 Salt, In re, 764 Salter v. Ely, 10.5, 120, 124, 120, 128, 405, 404 Sampson v. Browning, 237 Sampson v. Randall, 491 Samson v. Samson, 342 Sanborn v. Batchelder, 93 Sanborn v. Sanborn, 565 Sanborn's Estate, 325 Sanders v. Babbitt, 248 Sanders v. Blakeley, 390 Sanders v. Simcich, 283 Sanders v. Wallace, 713, 729 Sanders, In re, 522 Sanderson v. Bayley, 532 Sanderson v. Bigham, 487, 588 Sanderson v. Sanderson, 323, 382 Sanderson's Estate, 341 Sanford v. Lackland, 802 Sarce v. Dunoyer, 269 Satterfield v. Mayes, 540 Sauer v. Mollinger, 754, 820 Saunder's Appeal, 424 Saunders v. Stiles, 47 TABLE OF CAiSEcJ. 1057 (References are to sections.) Saux's Succession, 241 Savage v. Robertson, 156 Saville v. Saville, 785 Savory, In re, 172 Sawtelle v. Ripley, 809 Sawtelle v. Witliam, 619, 643, 647 Sawyer v. Baldwin, 461 Sawyer v. Cubby, 637 Sawyer v. Freeman, 738, 744 Saxton V. Webber, 466, 543, 637 Scaife v. Emmons, 234 Scale V. Rawlins, 468 Scanlan v. Wright, 150 Scarisbrick v. Skelmersdale, 638 Scattergood v. Kirk, 190, 414 Schad's Appeal, 56 Schardt v. Schardt, 136 Scharpf v. Schmidt, 151 Schehr v. Look, 605 Schermerhorn v. Getting, 631, 637 Schermerhorn v. Merritt, 181 Schildnecht v. Rompf, 111 Schinz v. Schinz, 615, 806 Schley v. Collis, 726 Schley v. McCeney, 91 Schlottman v. Hoflfman, 321, 809, 819 Schmaunz v. Goss, 527, 594 Schmidt v. Schmidt, 97 Schmidt's Estate, 25, 814 Schnee v. Schnee, 220, 367, 441 Schneider v. Koester, 291 Schneider v. Manning, 392 Schofield V. Walker, 441 Scholl's Will, 156 Schorr v. Carter, 572 Schorr v. Etling, 716 Schouler, In re, 650 Schreiner v. Schreiner, 94 Schroeder v. Wilcox, 689, 692 Sdmbart's Estate, 605 Schulenberg v. Harriman, 147 Schult V. Moll, 562 Schultze V. Schultze, 151, 317, 324 434 Schultz's Estate, 737 Schumaker v. Schmidt, 66, 67, 08, 69 Schwartz v. Gehring, 605 Schwartz's Estate, 559 Schwa then v. Daudt, 735 Schweder's Estate, 773 Scofield V. Olcoit, 466, 658, 668, 669 Scott V. Best, 663 Scott V. Fink, 273 Scott V. Guernsey, 524 Scott V. Harkness, 93 Scott V. Harris, 388 Scott V. Hawk, 173, 227, 373, 376 Scott V. Ives, 153 Scott V. Key, 603 Scott V. McKee, 388 Scott V. McNeal, 341 Scott V. Neeves, 501 Scott V. Price, 473 Scott V. Scott, 276 Scott V. Ward, 139 Scott V. West, 658 Scott's Estate, 35, 58, 105, 324, 376, 382, 554, 557 Scowcrost, In re, 646 Scribner v. Crane, 208 Scull v. Beatty, 138 Seal, In re, 488 Scale V. Chambliss, 400 Seale-HajTie v. Jodrell, 529 Seals v. Pierce, 53, 57 Seaman v. Woods, 278 Seaman, In re, 314, 661 Seamonds v. Hodge, 613 Sears v. Chapman, 644, 645 Sears v. Choate, 685 Sears v. Dillingham, 191, 199 Sears v. Hardy, 617, 799 Sears v. Russell, 547 Sear's Estate, 803 Seawright's Estate, 802 Sechrest v. Edwards, 222 Security Co. v. Bryant, 776 Security Company v. Cone, 599, 619 Security Co. v. Pratt, 598. 695, 806, 807 Security Co. v. Snow, 277, 619, 633 1058 TABLE OF CASES. (References are to sections.) Seebeck, In re, 657 Seebrock v. Fedawa, 370, 382, 405, 487 Seeds v. Burke, 691 Seeger v. Leakin, 564, 689 Seeley v. Huicks, 678 Seery v. Murray, 313, 318 Seever v. Seever, 237, 240 Segare v. Ash, 270 Segur's Will, 96, 108 Sehr V. Lindemann, 102, 117, 132 Seitz V. Pier, 562 Seitzinger's Estate, 613, 685 Selby V. Selby, 765 Sellers v. Reed, 469, 664 Selman v. Robertson, 546, 578, 591, 631 Semmes v. Semmes, 259, 275, 450 Semmig v. Mirrihew, 584 Scrapie's Estate, 752 Senger v. Senger, 820 Serfass v. Serfass, 564 Serle v. St. Eloy, 765 Seton V. Slade, 143 Severance v. Severance, 407, 409 Sevier v. Douglass, 28, 545 Sevier v. Douglas, 545 Sewall V. Robbins, 276 Sewall V. Wilmer, 39 Sewell V. Slingluff, 47, 244 Seymour v. Van Wyck, 227 SejTTiour's Estate, 423, 429 Seymour's Succession, 264, 265 Shacklett v. Roller, 449, 450 Shackleton v. Sebree, 52 Shadden v. Hembree, 461, 579, 738, 739 Shaefer v. Dawson, 550 Shafer v. Smith, 210 Shaffer v. Shaffer, 734 Shaffer's Succession, 48, 269, 337, 768, 771, 781 Shahan v. Swan, 74, 75 Shailer v. Bumstead, 85, 126, 394, 401, 423, 424 Shakespeare v. Markham, 79 Shaler v. Bumstead, 428 Shank v. Mills, 546 Shanley's Appeal, 390 Shannon v. Pickell, 522 Shapleigh v. Shapleigh, 480 Sharboro's Estate, 321 Sharland, In re, 534 Sharp V. Hall, 52, 53 Sharp V. Humphreys, 575 Sharp V. McPherson, 780 Sharp V. Wallace, 307 Sharp V. Wallis, 269 Sharp's Appeal, 98, 102 Sharpe v. Soupe, 139 Sharkey v. McDermott, 72, 75, 79 Sharpless's Estate, 016 Shattuck V. Balcom. 554, 606, 618 Shattuck V. Stedman, 549 Shaver v. McCarthy, 390 Shaw V. Camp, 307, 311, 323, 344 Shaw V. Eckley, 545, 547, 622, 656, 657, 658, 662, 664 Shaw V. Erwin, 676 Shaw V. Moderwell, 344 Shaw V. Neville, 222 Shaw V. Shaw, 244 Shaw V. Schoonover, 73 Shaw's Estate, 534 Shearer v. Miller. 593, 594 Shee v. Hale, 685 Sheehan v. Kearney, 173, 180, 330, 382, 400, 405, 406, 423 Sheeley v. Neidhammer, 564, 566, 568 Sheer v. Sheer. 380, 744 Sheets v. Hardin, 643 Sheets v. Wetsel, 461 Sheet's Estate, 574 Sheffield v. Parker, 499, 604 Sheldon v. Sheldon, 166 Sheldon v. Stockbridge, 154, 643, 644, 647, 651. 740 Shelley's Case, 564 Shelton v. Homer, 692 Shenk v. Shenk, 753 Shepard's Estate, 325 Sheridan v. Sheridan. 702 Sherley v. Sherley. 105 Sherman v. Baker, 507, 575, 651, 668, 737, 776 TABLE OF CASES. 1059 (References are Sherman v. Kitsmiller, 79 Sherman v. Lewis, 717 Sherman v. New Bedford Savings Bank, 56 Sherrer v. Brown, 281 Sherwood v. Sherwood, 810 Shibla V. Ely, 576 Shillaber, In re, 162, 165, 229 Shinier v. Shimer, 600, 670 Shinkle v. McCrock, 21 Shipman v. Furness, 122, 125 Shipman v. Keyes, 734 Shipman v. Rollins, 739 Shmid's Estate, 576 Shorb V. Brubaker, 105 Shore v. Shore, 098 Short V. Etling, 138 Short V. Smith, 254 Shorten v. Judd, 283, 284 Showalter v. Showalter, 773 Shower's Cases, 270 Shreiner v. Shreiner, 98 Shreiner's Appeal, 97, 108, 462, 403, 470 Shrimpton v. Shrimpton, 059 Shudall V. JeykI, 783 Shumate v. Bailey, 476, 488, 500 Shute V. Sargent, 32, 33 Shutz's Appeal, 470 Sibley v. Perry, 520 Sickles V. New Orleans, 31, 35, 643 Siders v. Siders, 555 Siddall V. Harrison, 800 Siddall's Estate, 031 Siddons v. Cockrell, 571 Siedler v. Syms, 636 Siegwald v. Siegwald, 574 Silcox V. Nelson, 508 Sill V. Blaney, 702 Sillcocks V. Sillcocks, 570 Silliman v. Whitaker, 567, 568 Silva V. Hopkinson, 564 Silvany's Estate, 414 Silverthorn's Will, 102, 385 Sim V. Russell, 96, 385, 393 Simerly v. Hurley, 410 Simmons v. AUinson, 823 to sections.) Simmons v. Beazel, 477 Simmons v. l^eonard, 190, 202, 203, 207, 210, 220, 222 Simmons v. Spratt, 506 Simmons, In re, 210 Simms v. Buist, 504, 614 Simon v. Wildt, 44, 52, 55 Simonds v. Simonds, 562, 566 Simpson v. Cherry, 158, 540, 579 Simpson v. Molson's Bank, 014 Simpson v. Simpson, 178 Simpson v. Walker, 278 Simrell's Estate, 254, 298, 299 Sims V. Sims, 108, 401, 015, 017, 020, 812 Sinclair's Will, 348 Singer's Will, 221 Singleton v. Tomlinson, 103 Sinnett v. Bowman, 90, 329, 335 Sinnott v. Kennedy, 708, 709 Sinton v. Boyd, 548 Sires v. Sires, 576 Sise V. Willard, 576 Sisson V. Seabury, 459 Sister v. Smith, 47 Sisters of Charity v. Kelly, 164, 222, 186 Sites V. Eldredge, 475 Sittig V. Hance, 781 Skair, In re, 163 Skeggs V. Horton, 434 Skerrett v. Burd, 278 Skerrett's Estate, 57, 58, 162, 166, 167 Skinner v. American Bible Society,. 102, 189, 203, 227, 307, 311 Skinner v. Blackburn, 240- Skinner v. McDowell, 570 Skipwith V. Cabell, 270, 277, 508 ■ Skrymser v. Northcote, 507 . Slack V. Bird, 540 Slack V. Emery, 704, 705 Slach V. Perrine, 314 Slater v. Dangerfield, 566 Slattery v, Wason, 685 Slaughter v. Slaughter, 244 1060 TABLE OF CASES. (References are to sections.) Slaughter v. Stephens, 279 Slaughter v. Stevens, 450 Slayton v. Blount, 568 Sleeper v. Kelley, 794 Slinn, Goods of, 53 Slingloff V. Bruner, 112, 192, 194, 197, 330, 367, 369, 372, 373, 387, 400 Slinger's Will, 115, 426, 427 Slingluff V. Johns, 473 Sloan V. Sloan, 189, 190 Sloan's Estate, 198 Slocum V. Hagaman, 737 Sloniger v. Sloniger, 70, 73, 281, 454 Sly V. Hunt, 340, 341 Small V. Field, 613, 624 Small V. Jose, 136, 500 Small V. Marburg, 662, 676, 737 Small V. Small, 410 Small V. Thompson, 576 Smalley v Smalley, 191, 194, 689, 810 Smart v. Prujean, 166 Smathers v. Moody, 561, 573 Smee v. Bryer, 185 Smee v. Smee, 94 Smelie v. Reynolds, 89 Smiley v. Gambill, 247, 255, 258, 449, 450 Smith V. Beardsley, 695 Smith V. Bell, 576, 597, 817 Smith V. Berry, 562 Smith V. Bonsall, 312 Smith V. Bradstreet, 325 Smith V. Burch, 496 Smith V. Butler, 722, 715 Smith V. Cairns, 749 Smith V. Chadwick, 579, 674 Smith V. Clemson, 284 Smith V. Combs, 341 Smith V. Curtis, 744 Smith V. Day, 382, 394 Smith V. Dennis, 488 Smith V. Donnell, 461 Smith V. DuBrose, 156 Smith V. Edrington, 141 Smith V. Evans, 170 Smith V. Fenner, 302 Smith V. Fellows, 774 Smith V. First Presb. Church, 757 Smith V. Floyd, 694 Smith V. Gilbert, 663 Smith V. Greeley, 511, 528, 599, 697 Smith V. Greene, 546 Smith V. Hall, 618, 689, 692 Smith V. Hankins, 594, 676 Smith V. Harrison, 410 Smith V. Henline, 97. 122, 123, 125, 128, 131, 370, 382, 398, 411, 414, 424 Smith V. Hilliard, 658 Smith V. Holden, 44, 49, 53, 65, 205, 209, 213, 340, 341 Smith V Hutchinson, 489 Smith V. Jackman, 669, 670, 710, 760, 802 Smith V. James, 416, 426 Smith V. Jewett, 492 Smith V. Jones, 142, 148, 191, 192, 466, 482 Smith V. Kimball, 538, 592, 676, 819, 823 Smith V. Mason, 750, 757 Smith V. McChesney, 267 Smith V. McCormick, 595 Smith V. Mclntire, 689 Smith V. Olmstead, 291, 292, 296 Smith V. Parsons, 669 Smith V. Pierce, 75, 79 Smith V. Rice, 656 Smith V. Robertson, 287, 296 Smith V. Runnels, 570 Smith V. Secor, 466, 744 Smith V. Sheehan, 56, 291, 292 Smith V. Smith, 23, 70, 74, 97, 101, 105, 106, 120, 132, 159, 162, 168, 323, 341, 301, 385, 390, 411, 426, 429, 476, 507, 742 Smith V. Tebbitt, 94, 105 Smith V. Towers, 685 Smith's Appeal, 674 Smith's Estate. 343, 602, 652, 670, 710, 715, 723, 735 Smith, Goods of, 61, 249 TABLE OF CASES. 1061 (References are to sections.) Smith, In re, 49, 65, 305, 414, 487, 524, 545, 684, 726, 741 Smith's Trusts, 468 Smith's Will, 111, 216 Smith's Exr's v. Smith, 414, 428 Smithdeal v. Smith, 240 Smither v. Willcock, 656 Smithers v. Jackson, 462 Smithsonian Institution v. Meech, 683 Smock V. Smock, 248, 249, 258, 449, 450 Smythe v. Smythe, 576 Snedekers v. Allen, 199 Sneed v. Ewing, 244, 283 Sneer v. Stutz, 613, 691 Snelgrove v. Snelgrove, 217 Snelling's Estate, 102 Snider v .Burks, 209 Snider v. Nesbitt, 663 Snider v. Snider, 787, 790 Snow V. Hamilton, 325 Snow V. Snow, 669 Snow V. 'leed, 528 Snowhill V. Snowhill, 267, 268 Snover v. Squire, 709 Snuffer v. Howerton, 313, 321 Snyder v. Baer, 562, 574, 575 Snyder v. Castor, 72 Snyder v. Nesbitt, 561 Snyder's Estate, 659 Society v. Attorney General, 642 Society v. Hatch, 823 Society, etc., v. Lover idge, 199 Society v. Moll, 643 Soher's Estate, 167, 229, 264 Solari v. Barras, 325, 365 Soper V. Brown, 526, 551 Sorsiby v. Vance, 461 Soteldo V. Clement, 545 Soules, In re, 669 South V. South, 698 South Mahoning Township v. Marshall, 463. 751 Southard v. R. R., 147 Southard's Will, 356 Southgate v. Clinch, 515 Southworth v. Adams, 437, 441 Southworth v. Sebree, 758, 802 Soward v. Soward, 185, 221 Sowers v. Cyrenius, 843, 649 Spalding v. Spalding, 676, 713 Spangler v. Dukes, 727 Sparhawk v. Cloon, 685 Sparhawk v. Sparhawk, 191, 192, 194 Sparks v. Restal, 468 Spath V. Ziegler, 794 Spear v. Fogg, 656, 657 Speedling v. Worth County, 100, 101 Spehn V. Huebschen, 333 Spence v. Widney, 641, 645, 646 Spencer v. Green, 667, 668 Spencer v. Higgins, 820 Spencer v. Bobbins, 5z Spencer's Estate, 111, 127, 387 Spencer, In re, 659 Spencer, Petitioner, 771 Spiegelhalter's Will, 199, 362 Spraage v. Stone, 283 Sprague v. Smith, 210 Spratt V. Spratt, 97, 210 Spratt, In re, 229 Spreen v. Sandman, 729, 732 Springfield, In re, 468 Springer v. Coughton, 543, 551 Springer v. Savage, 659 Sprinkle v. Hayworth, 79 Spruance v. Darlington, 719 Stacey, In re, 320 Stacey's Will, 343 Stackpole v. Beaumont, 681 Stableton v. Ellison, 575, 576 Staebler, In re, 25, 773 Stafford v. Martin, 561 Stafford v. Villain, 243 Staines v. Burton, 641, 643, 647 Stamm v. Bostwick, 150 Stamper v. Hooks, 236 Stancell v. Kenon, 97, 102 1062 TABLE OF CASES. (References are to sections.) Stanfield's Estate. 601 Stanley v. Safe Deposit Co., 340, 341 Stanley v. Stanley, 668 Stannard v. Barnum, 141 Stanton v. Miller, 79 Staples V. Lewis, 533 Staples V. Wellington, 113 Starbuck v. Starbuck, 780 Stark V. Lipscomb, 574 Starke v. Conde, 675, 745 Starkweather v. American Bible Society, 36, 153 Starkweather v. Bell, 344 Starkweather v. Society, 816 Starling v. Price, 462, 522, 545 Starr v. Starr, 602 Staser v. Hogan, 427 State V. Blake, 644, 648 State V. Buckner, 332 State V. Holmes, 466, 467, 629, 636, 640, 745, 746 State V. White, 341 State ex rel. v. Willrich. 659 Stead V. Manton, 561 Stebbins v. Lathrop, 317 Stebbins v. Stebbins, 293, 507 Stebbin's Estate, 291. 820 Stedman v. Priest, 543 Steele v. Helm, 97, 125, 382 Steele v. Price, 437, 449 Steib V. Whitehead, 685 Stein V. Gordon. 802 Stein V. Stein, 622, 689 Steiner v. Kolb, 564 Steinhardt v. Cunningham, 618 Steinke's Will, 348, 442, 443, 449, 450 Steinmetz's Estate, 605 Stephens v. Flower, 576 Stephens v. Milnor, 608 Stephens v. Stephens, 173 Stephen's Estate, 670 Stephen's Succession, 632 Stephenson v. Stephenson, 208, 366, 400, 423 Sternberg's Estate, 314, 453 Sternberg, In re, 270 Sternmetz's Estate, 463 Stetson V. Eastman, 742, 744 Stevens v. Bagwell, 89 Stevens v. Dewey, 806, 807, 808, 812 Stevenson v. Dunlap, 150 Stevens v. Flower, 750 Stevens v. Gregg, (55 Stevens v. Hope, 273, 449 Stevens v. Leonard, 333, 387, 388, 401 Stevens v. Shippen, 288, 293 Stevens v. Stevens, 115, 402 Stevens v. Underbill, 507, 764 Stevens v. Van Cleve, 174, 180 Stevens, In re, 820 Stevenson v. Abington, 532 Stevenson v. Brown, 473 Stevenson v. Evans, 461, 471, 631, 633 Stevenson v. Scott, 488 Stevenson v. Stevenson, 570 Stevenson v. Superior Court, 341 Stewart v. Hall, 324 Stewart v. Harriman, 192, 199, 362 Stewart v. Jordan, 120, 124, 1.32, 426 Stewart v. Mulholland, 274, 281, 284, 305 Stewart v. Pattison, 461 Stewart v. Powell, 281, 286 Stewart v. Powers, 513 Stewart v. Row, 341 Stewart v. Stewart, 52, 205, 210, 375, 405, 406. 487, 760, 787 Stewart's Estate, 325, 467, 515, 547 549 Stewart's Succession, 231 Stewart's Will, 331, 449 Stickney's Will, 36, 153, 274, 276, 305, 454 Still V, Spear, 461 Stilley V. Folger, 729 Stirling v. Stirling, 414 Stivers v. Gardner, 570, 571, 580, 681 Stoakes, Goods of, 187 Stockbridge, In re, 551 TABLE OF CASES. 1063 (References are Stockier v. Thornton, 136, 141 Stockton V. Wooley, 732 Stoddart v. Melson, 532 Stoff V. McGinn, 689, 808, 812 Stokes V. Pillow, 138, 716 Stokes V. Norwood, 711 Stokes V. Stokes, 31, 522 Stokes V. Vanwyck, 466, 658 Stokes V. Weston, 658, 676 Stokes, In re, 764 Stone V. Damon, 115 Stone V. Griffin, 643 Stone V. Pennock, 796 Stone V. Vandermark, 713, 721 Stone, In re, 554 Stonestreet v. Doyle, 744 Story V. Palmer, 689 Storey, In re, 318, 339 Storey's Will, 127, 324, 410, 420 Storer's Will, 404, 410 Storrs V. St. Luke's Hospital, 321, 325 Stoser V. Hogan, 394 Stout V. Rayle, 52 Stout V. Stout, 803 Stover V. Kendall, 254, 260, 276, 299, 311 Stowe V. Stowe, 321 Stowell V. Hastings, 574 Strain v. Sweeney, 514, 631 Stratheden and Campbell, In re. Lord, 632, 653 Stratton v. Morgan, 820 Streatly, Goods of, 221 Strieker v. Oldenburgli, 233 Strieker v. Groves, 195 Striewig's Estate, 506, 545 Striker v. Mott, 658 Stringfellow v. Early, 346 Stringfellow v. Somerville, 45 Strong V. Cummin, 462, 471, 676 Strong V. Smith, 551 Strong's Appeal, 643, 647 Strong, In re, 221 Stroup V. Stroup, 52, 53 Strum V. Sawyer, 590 Stubbs V. Houston, 279, 382 Studdard v. Wells, 140, 147 to sections.) Stumpeuhousen's Estate, 44, 473, 576, 806 Stunz V. Stunz, 138, 713 Stuart V. Carson, 776 Sturdevant's Appeal, 85, 97, 333, 383, 385 Sturdivant v. Birchett, 215 Stuart V. Bute, 492 Sturgis V. Cargill, 466 Sturgis V. Paine, 611 Sturgis V. Work, 268, 269, 460. 462, 470, 542, 809, 816 Sudeley, In re, 629 Sugden v. McKenna, 562, 676 Sugden v. St. Leonards, 437, 441, 444 Suggett V. Kitchell, 157 Suisse V. Lowther, 799 Sullivan v. Foley, 125, 126, 127, 133, 191, 428, 429 Sullivan v. Latimer, 504, 796 Sullivan v. Parker, 156, 525 Sullivan v. Strauss. 470, 544 Sullivan v. Sullivan, 192, 197, 198, 348 Sullivan's Estate, 58 Sullivan's Will, 363, 372, 373, 375, 377, 380 Sumerel v. Sumerel, 710 Sumner v. American Home Mis- sionary Society, 771 Sumwalt V. Sumwalt, 329 Sunday's Estate, 54 Sunderland v. Hood, 411 Sutherland v. Sutherland, 712 Sutherland v. Sydnor. 46, 407 Sutton V. Hayden, 75, 79 Sutton V. Reid, 733 Sutton V. Sutton, 254 Surdam v. Cornell, 637 Suydam v. Voorhees, 764 Svanburg v. Fosseen, 75, 79 Swails V. Swails, 278, 279, 782 Swails V. White, 414 Swain v. Edmunds, 223, 227, 370, 371 Swallow V. Swallow, 543, 551 Swan V. Hammond, 281, 283, 284 1064 TABLE OF CASES. (References are to sections.) Swan V. Sayles, 21, 281, 284 Swann v. Housman, 44, 55, 269 Swarthout v. Ranier, 57G Swartz V. Gehring, 570 Swartz V. Steel, 75 Swasey v. Jaques, 515, 521 Swash V. Sharpstein, 74 Swazey v. Blackmail, 312, 313, 343 Sweeney v. Warren, 691 Sweet V. Burnett, 496 Sweet V. Dutton, 515 Sweet, In re, 370 Sweetland v. Sweetland, 186 Sweitzer's Estate, 475, 507 Swenson's Estate, 468, 514, 515, 546 Swett V. Boardman, 44, 47, 227 Swift V. Wiley, 189, 222 Swihart v. Swihart, 736 Swing V. Gateh, 797 Swinton v. Bailey, 254 Swope V. Donnelly, 377 Sykes v. Van Bibber, 772, 774 Sykes, Goods of, 432, 433 Syme v. Badger, 721 » Tabler v. Tabler, 44, 236 Tabor v. Mclntire, 467 Tabor v. Tabor, 611 Taff V. Hosmer, 382 Taft V. Taft, 717 Taggart v. Murray, 548 ,Tainter v. Clark, 642 Tallbird v. Bell, 290 Talbot V. Schneider, 673 Talcott V. Talcott, 543 Tallman's Estate, 423, 428 Tallman's Will, 110 Tamplin, Goods of, 314, 315 Tandy v. Cook, 497 Tanton v. Keller, 308, 780, 783 Tappan v. Deblois, 643 Tappan's Appeal, 672 Tappen v. Davidson, 223, 371 Tarbell v. Walton, 315, 355 Tarrant v. Backus, 618, 631 Tarver v. Tarver, 61, 63, 340, 674 Tate V. Clark, 567 Tate V. Tate, 230, 330 Tatnall v. Hankey, 39 Taubenhan v. Dunz, 466, 471, 475, 477, 488, 820 Taylor v. Bell, 373, 573 Taylor v. Benham, 150 Taylor v. Bennett, 317, 350 Taylor v.. Brown, 574 Taylor v. Bryn Mawr College, 645 Taylor v. Cox, 23, 96, 244, 373, 382, 450, 742 Taylor (or Baker) v. Dening, 173 Taylor v. Elder, 605 Taylor v. Fauver, 557 Taylor v. Foster, 594 Taylor v. Galloway, 691 Taylor v. Kelly, 102, 278 Taylor v. Lanier, 751 Taylor v. McRa, 24 Taylor v. Meads, 92 Taylor v. Mosher, 659 Taylor v. Pegram, 98, 102, 244, 266, 384, 400, 429 Taylor v. Taylor, 199, 273 Taylor v. Tibbatts, 321 Taylor v. Trich, 104, 111, 382 Taylor's Appeal, 237, 239 Taylor's Estate, 487, 776 Taylor, In re, 794 Tawney v. Long, 108, 423 Teacle's Estate, 267 Teats V. Flanders, 70, 81 Teegarden v. Lewis, 409 Teel V. Hilton, 767 Teele v. Bishop of Derry, 641, 649, 655 Teese v. Kyle, 574 Temple v. Chandos, 278 Temple v. Mead, 159 Temple v. Pasquotank County, 746 Terrell v. Reeves, 572, 628, 630, 631 Terry v. Bourne, 579 TABLE OF CASES. 1065 (References are to sections.) Terry v. Brunson, 591 Terry v. Buffington, 394 Terry v. Edminster, 278 Thayer v. Finnegan, 751 Thayer v. Spear, 681 Thayer v. Wellington, 165 Thelluson v. Woodford, 473, 638 Theological Seminary v. Calhoun, 374 Theurer's Succession, 23 Thieband v. Tait, 602 Thieme v. Zumpe, 597 Thomas v. Black, 291, 292, 293, 294 Thomas v. Carter, 108 Thomas v. Gregg, 632 Thomas v. Levering, 269, 462, 526 Thomas v. Miller, 570 Thomas v. The People, 341 Thomas v. Thomas, 300, 301, 302, 491, 548, 595, 744, 765 Thomas v. Wall, 236 Thomas v. Wood, 324 Thomas, In re, 578, 602, 631, 684 Thomas's Will, 260, 367, 370 Thomman's Estate, 668, 700 Thompkins v. Miller, 689 Thompson v. Beasley, 526 Thompson v. Churchill, 798, 800 Thompson v. Davitte, 219 Thompson v. Hawks, 111, 420 Thompson v. Hoop, 678, 732 Thompson v. Ish, 97, 127, 386, 410 Thompson v. Johnson, 49 Thompson v. Kyner, 96, 98, 126 Thompson v. Newlin, 465 Thompson v. Owen, 223 Thompson v. Peake, 676 Thompson v. Rainier, 329 Thompson v. Shackleford, 467 Thompson v. Stevens, 72, 73, 225 Thompson v. Swoope, 153 Thompson v. Teulon, 799 Thompson v. Thompson, 173, 21 S 401, 424, 472, 766, 819 Thompson v. Tucker-Osborne, 73 Thompson v. Wilson, 796 Thompson's Estate, 764 Thompson, In re, 25, 382, 383 Thompson's Trusts, 515 Thomson v. Thomson, 473, 487 Thorald v. Thorald, 55 Thorington v. Thorington, 563 Thorn v. Garner, 803 Thorndike v. Reynolds, 91 Thorne v. Allen, 005 Thorne v. Thorne, 724 Thornington v. Hall, 814 Thornton v. Stanley, 685 Thornton v. Thornton, 366 Thornton v. Zea, 813 Thorpe v. Bestwick, 192, 197 Thrasher v. Ballard, 691 Thrasher v. Ingram, 461 Thrall v. Spear, 576 Three States Lumhir Co. v. Rogers, 488 Throckmorton v. Holt, 377 Thurber v. Battey, 459, 461, 775, 803 Thurston v. Bissel, 690 Thurston v. Prather, 326 Thyng v. Moses, 803 Tibbe v. Kamp, 405, 406, 419, 429 Tichenor v. Brewer, 527, 643, 647 Tichenor v. Tichenor, 803 Teele v. Hathaway, 467 Tienken v. Tienken, 662 Tilden v. Green, 610. 619, 639, 643 Tilden v. Tilden, 205, 206, 227, 269, 800 Tilley v. Ellis, 819, 823 Tilley v. King, 672, 673 Tillinghast v. De Wolfe, 522 Tillman's Estate, 279 Tilton v. Society, 823 Tilton. In re, 576 Tindall v. Miller, 579 Tindall v. Tindall, 507 Tingier v. Chamberlain, 629, 633 Tingley v. Harris, 522, 597 Titlmv V. Titlow, 388, 390, 401 Titlow's Estate, 345 Titus V. Gage, 105, 330, 391, 395, 397. 403 1066 TABLE OF CASES. (References are to sections.) Tobin V. Jenkins, 97 Todd V. Fenton, 96 Todd V. McFall, 758, 791 Todd V. Sawyer, 684 Todd V. Wortman, 660, 689 Toebbe v. Williams, 44, 229, 230, 432, 450 Toland v. Toland, 614, 635, 637 Tolman v. Tolman, 780 Toman v. Dunlop, 561 Tomlinson v. Bury, 768, 772 Tomlinson v. Tomlinson, 288 Tomlinson's Appeal, 249, 254 Tomlinson's Estate, 159, 449 Tomkins v. Griffin, 500 Tomkins v. Miller, 689 Tomkins v. Tomkins, 97, 414 Tompkins v. Merriman, 717, 814 Tompkins v. Tompkins, 312, 324, 339 Tompkin's Estate, 145, 506, 587, 590, -618, 662 Toms V. Owen, 611 Toner v. Collins, 659, 616 Tonge, Goods of, 267 Tonnele v. Hall, 162, 186, 203 Tonnele v. Zabriskie, 34 Toomes's Estate, 174, 177, 204, 389 Tope V. Top.e, 604, 751 Torrey v. Burney, 392, 427 Torrey v. Torrey, 806, 808 Tourinoir v. Tourinoir, 208 Tower's Estate, 635 Towle V. Xessmitb, 639, 643, 647 Towle V. Swasey, ^68, 771, 773, 776 Towle V. Wood, 56, 57 Townley v. Watson, 254 Townsend v. Bogart, 100 Townsend v. Howard, 276, 450 Townsend v. Mostyn, 798 Townsend v. Pearce, 173 Townsend v. Peperell, 403 Townsend v. Rackham, 49 Townsend v. Townsend, 461, 471, 514. 542, 750, 755 Townsend v. Vanderwerker, 70. 79 Townsend's Contracts, In re, 618 Townsend v. Howard, 249, 449 Tozer v. Jackson, 315 Tracy's Estate, 729 ' Trammel v. Trammel, 786 Traphagen v. Le\y, 561, 614, 806, 808 Trapnell v. ConkljTi, 22 Travis v. Morrison, 659 Trawick v. Davis, 53, 313 Treasy v. Ireasy, 737 Tredwell, In re, 802 Trembly V. Trembly, 177, 366 Trew V. Perpetual Trustee Com- pany, 681 Trexler v. Holler, 676 Trezevant v. Rains, 102, 127, 132, 180, 405 Trich's Will, 108 Trim's Estate, 643, 647 Trimble v. Lebus, 689 Trimlestown v. D'Alton, 131 Trimmer v. Bayne, 783 Trimmer v. Jackson, 227 Trinitarian, etc.. Society, Appell- ant, 194 Trish V. Xewell, 98, 383 . Trost V. Dingier, 130 Trotter v. Trotter, 291 Trotter, In re, 196 Trowbridge v. Metcalf, 28 Troy V. Evans, 340 Trufant v. Xunneley, 636 Trumbull v. Trumbull, 565 Truslow, In re, 550, 551 Trustees v. Guthrie, 819 Trustees of Amherst College v. Ritch, 334. 620, 621 Trustees of Church Home, etc., v. Morris, 802, 804 Trustees of Emory and Henry Col- lege V. Shoemaker College, 537 Trustees 0. S. U. v. Folsom, 25 Tucker v. Cole. 332 Tucker v. Inman, 89 Tucker v. Lungren, 765 Tucker v. Move, 752 TABLE OF CASES. 1067 (References are Tucker v. Sandidge, 116, 179, 209, 398 Tucker v. Tucker, 199 Tucker's Will, 545, 549 Tudor V. Tudor, 254 Tuller's Will, 284 Turley v. Turley, 527, 564, 633 Turner v. Balfour, 664 Turner v. Clieesman, 125 Turner v. Cook, 94, 205, 206, 210, 227, 382 Turner v. Durham, 577 Turner v, Gibb, 750, 755 Turner v. Laird, 764, 765 Turner v. Patterson, 462 Turner v. Rusk, 111 Turner v. Scott, 53 Turner v. Wilson, 572 Turner v. Withers, 468 Turner's Guardian v. King, 333 345, 387 Turner's Appeal, 96, 127, 333, 364, 390 Turner's Estate, 784 Turnour, Goods of, 264 Turnure v. Turnure, 223, 385, 421 Turrill v, Northrop, 566 Tusch V. Savings Bank, 57 Tuttle V. Berryman, 166, 167, 314 Tuttle V, Puitt, 554, 559 Tuttle's Case, 602 Tweddell v. Tweddell, 766 Twombley's. Will, 337 Tygart v. Peeples, 341 Tyler v. Gardiner, 414 Tyler v. Merchant Tailor Co., 299 Tyler v. Tyler, 281, 288 Tyler v. Wheeler, 89, 137, 326 Tjier's Estate, 372, 373 Tyler, In re, 690 Tyrrell v. Painton, 406, 414, 700 Tyson v. Tyson, 382, 806 Tyson's Estate, 596 to sections.) u. Underwood v. Curtis, 630, 636, 701 Underwood v. Bobbins, 520 Union Savings & Trusti Co., v. Darr, 669 Unitarian Society v. Tufts, 769, 780 United States v. Fox, 154 United States Trust Company v. Block, 773 University v. Barrett, 52 Upchurch v. Upchurch, 173, 221, 222 Updike V. Ten Broeck, 74 Uppington v. Bullen, 148 Upington v. Corrigan, 147 Urich's Appeal, 463 Urmey v. Wooden, 647 Usticke V. Bauden, 271 Utasey v. Giedinghagen, 150 V. Valentine's Will 348, 349, 350, 361, 437, 441, 443, 449, 450 Van Arsdale v. Van Arsdale, 728 Van Brocklin's Estate, 692 Vance v. Upson, 316, 321, 322, 403 Vance's Estate, 737, 772 Van Denzer v. Gordon, 233 Vanderzee v. Slingerland, 676, 741 Vandeveer v. Higgins, 284 Vandeveer's Will, 47 Vandervort's Estate, 680 Vnndiver v. Vandiveir, 470, 488, 819 Vandruff v. Rinehart, 180 Van Duyne v. Vreeland, 47, 72, 73, 75, 79 Van Giesen v. White, 674, 806 Van Grutten v. Foxwell, 269 Van Guysling v. Van Kuren, 97, 111 Van Hanswyck v. Wiese, 173 Vanhille's Succession, 230 1068 TABLE OF CASES. (References are Van Horn v. Campbell, 684 Van Horn, In re, 684, 686 Van Houten v. Pennington, 473, 550 Van Houton v. Post, 783 Van Huss v. Rainbolt, 388 Vannerson v. Culbertson, 471 Van Xest v. Van Nest, 774 Van Nostrand v. Board of Do- mestic Missions, 539 Van Ormen v. Van Ormen, 405 Vansant v. Roberts, 153 Van Schaack v. Leonard, 500, 715 Van Svckel v. Beam, 138 Van Svckel v. Van Svckel. 511 Van Wickle v. Van Wickle, 296 Varner v. Bevil, 28 Varner v. Johnston, 340, 341 Varner v. Varner, 403, 422 Varney v. Stevens, 560 Varnon v. Varnon, 161, 248, 254, 260, 276, 299 Varrell v. Wendell, 529 Vaughan v. Bunch, 269 Vaughan v. Farmer, 692 Vawser v. Jeffrey, 278 Veeder v. Meader, 575 Venable v. Mercantile Trust Co., 692 Verdier v. Verdier, 227, 278 Vernon v. Jones, 278 Vernon v. Kirk, 178 Verplank, In re, 812 Verrinder v. Winter, 288, 289, 292, 293 Very v. Very, 157 Vestry of St. John's Parish v. Bostwick, 157, 161, 162, 165, .307, 317, 341, 343 Vidal V. Girard, 639, 640 Vidal's Succession, 329 Viele V. Keeler, 269 Vincent v. Xewhouse, 739 Vines v. Clingfost, ISO Vining v. Hall, 277, 434 Vinson v. Vinson, 52 Vitt V. Clark. 787, 788 Vogel V. Lehritter, 221, 307 to sections.) Vollmer's Succession, 241 Vom Vechten v. Keator, 268 Von de Veld v. Judy, 85, 96, 102, 333, 334, 384, 394 Von Phul V. Hay, 711 Vorhees v. Vorhees, 257 Voorhis's Will, 158, 226 Vrooman v. Powers, 191, 192, 196, 238, 447 W. Waddell v.- Waddell, 81 Waddington v. Buzby, 102, 223, 406. 414 Wade V. Dean, 797 Wadsworth v. Sharpsteene, 115 Wagner v. Ellis, 91 Wagner v. Ziegler, 331 Wainwright v. Wainwright, 411 Wait V. Belding. 141. 561 Waite V. Frisbie. 44, 119, 123, 176. 180. 209. 380 Wake V. Wake, 727 Wakefield v. Phelps. 21, 93, 156 Waldron v. Waldron, 820 Waldron's Will, 257 Wales V. Bowditch, 685 Wales V. Templeton, 487, 502 Walker v. Atmore, 668, 755 Walker v. Boughner, 73 Walker v. Gibson, 599 Walker v. Hall, 281. 288. 290, 202 Walker v. Jones, 53 Walker v. Mower, 669 Walker v. Parker, 467 Walker v. Pritchard, 581 Walker v. Redding. 138 Walker v. Skeene, 193 Walker v. Walker, 67, 210, 211, 329, 331, 392 Walker v. Webster, 554, 559 Walker's Estate, 189, 219 Walker, Goods of, 156 Walker, In re, 186 Walker's Will, 183. 315 Walkerly's Estate, 137, 629, 632, 635, 669 TABLE OF CASE8. 1069 (References are Wall V. Dickins, 733 Wall V. Wall, 44, 52, 312, 341 Wall's Appeal, 73 Wallace v. Dening, 579 Wallace v. Du Bois, 742, 783. 784 Wallace v. Harris, 411 Wallace v. Long, 74, 75, 78 Wallace v. McMicken, 528 Wallace v. Minor, 471, 512 Wallace v. Rappleye, 72, 79 Wallace v. Sheldon, 344, 345 Wallace v. Smith, 685 Wallace v. Wallace, 767 Waller v. Marks, 346 Waller. In re. 819 Wallis V. Luhring. 94, 333: 401. 424 Wallis T. Wallis, 270 Walls V. Walls, 267, 501 Wain's Estate, 738, 739 Walpole V. Apthorp, 774 Walpole T. Orford, 69, 70, 72, 74 Walsh V. McCutcheon, 670 Walter v. Hensell, 533 Walters v. Maunde, 702 Walters v. RatlifF, 321 Walters v. Walters, 116, 209 Walter's Will. 160 Walton V. Hall, 315. 356 Walton v. Kendrick, 158, 204, 376, 377, 380 Walton V. Walton. 278 Walton V. Williams, 315 Walton's Estate, 311 Ward V. Barrows, 473 Ward V. Bush, 739 W*ard T. Congregational Church, 341 Ward V. Cooper. 522. 523 Ward V. Saunders, 462 Ward V. Stow, 526 Ward V. Ward. 44. 52. 202. 604, 806, 808 Ward's Will, 284 Wardens, etc., of St. Paul's Church V. Attorney General. 641. 642, 647 Wardwell v. Hale. 669 to sections.) Wardwell v. McDowell, 692 Wardwell v. Wardwell, 45 Ware v. Rowland, 547 Ware, In re, 533 Warfield v. Fox, 340 Warford v. Colvin, 312 Warford v. Van Sickle, 329 Wargent v. Hollings, 449 Waring v. Bosher, 597 Waring v. Waring 94, 104, 676 Warley v. Warley, 777 Warner v. Beach. 283, 285 Warner v. Miltenberger, 819 Warner v. Rice, 528 Warner v. Sprigg, 564 Warner 'v. Warner, 249, 306 Warner v. Williard, 463, 470 Warner's Appeal, 543 Warner's Estate, 611 Warner. Ex parte, 290 Warren v. Baxter, 191, 192, 194 Warren v. Morris, 772, 776 Warren v. Taylor, 278 Warren v. Warren, 137, 138, 602, 713. 716, 729 Warter v. Warter, 281, 329 Warwick v. Warwick, 181 Washbon v. Cope, 595, 676 Washburn v. Van Steenwyck, 29 Washburn's Estate, 760 Waterman v. Alden, 501 Waterman v. Hawkins, 289, 290, 293 Waterman v. Whitney, 376, 400, 423, 450 Waters v. Stickney. 316, 322. 341 Waters v. Waters, 312, 473, 507 Watkins v. Dean, 53, 57 Watkins v. Quarles, 659 Watson V. Adams, 663 Watson V. Alderson. 325 Watson T. Blackwood, 463 Watson V. Conrad. 660 Watson V. Lincoln, 784 Watson V. Pipes, 180. 209. 210, 227 Watson V. Smith, 657 Watson V. Turner, 322 1070 TABLE OF CASES. (References are to sections.) Watson V. Watson, 49, 52, 482, 712, 732 Watson's Estate, 323 Watts V. Cole, 144 Watts V. Public Administrator' 157 Watts V. Watts, 749 Watt's Estate, 25, 267 Wax's Estate, 96, 390, 391, 397 Weathers v. McFarland, 72 Weatherhead v. Baskerville, 526 Weatherhead v. Stoddard, 466, 658 Weaver v. Weaver, 573 Webb V. Archibold, 142, 489 Webb V. Carney, 484 Webb V. Fleming, 216 Webb V. Janney, 312 Webb V. Jones, 284 Webber v. Sullivan, 405, 416, 426 Weber v. Bryant, 619, 643, 646 Webster v. Bible Society, 804 Webster v. Lowe, 58 Webster v. Thorndyke, 618 Webster v. Webster, 278, 279, 668 W^ebster v. Wies, 494 Webster v. Wiggin, 142, 483, 489. 626, 641, 642, 719, 748, 759, 803 804 Webster's Estate, 532 Weeding, In re, 497 Weehawken Ferry Co. v. Sisson, 526 Weeks v. Jewett, 598 Weeks v. McBeth, 437 Wehle V. Umpfenbach, 135 Weiler's Estate, 752, 753 Weinbrenner's Estate, 631 Weingaertner v. Pabst, 76^ 77 Weir V. Fitzgerald, 117 Weir V. Smith, 698 Weir's Will, 109 Weisert v. Muehl, 136 Welborn v. Tewnsend, 142, 489 Welch V. Adams, 191, 203. 216, 710, 803 Welch V. Brimmer, 547, 594 Welch V. Brown, 803 Welch V. Welch, 366, 372 Welder v. McComb, 663 Weldon v. Hoyland, 526 Well's Estate, 631, 806, 808 Wellbeloved v. Jones, 643 Weller v. Noffsinger, 614, 726 Welford v. Snyder, 595, 597 Welling v. Owings, 239 Wellington v. Apthorp, 74 Wellington v. Wellington, 282 Welliver v. Jones, 569 Wellons V. Jordan, 751 Wells V. Anderson, 467 Wells V. Borwick, 774 Wells V. Child, 324 Wells V. Congregational Church, 138, 716, 723 Wells V. Hutton, 558 Wells V. Wells, 254, 278, 324, 342, 377 Wells, Fargo & Co. v, Walsh, 315, 317, 358 Welman v. Neufville, 507 Welsh V. Philips, 271 Welsh V. Powndes, 279 Welsh V. Welsh, 372 W^elsh V. Woodbury, 575 Welty V. Welty, 222, 227 Wemyss v. White, 685 Wengerd's Appeal, 668 Wenning v. Teeple, 120, 124, 329 Wentworth v. Fernald, 459, 461, 462, 605, 631 Wentworth v. Read, 747, 820 Werkheiser v. Werkheiser, 234, 237 West V. Moore, 675 West V. Rassman, 554 West V. Shuttleworth, 650 West V. West, 89, 92, 264, 270, 333, 334, 453 Westbrook v. Vanderburgh, 713 Westcott V. Binford, 565 Westcott V. Sheppard, 102, 127 Wester v. Wester, 238 Weston V. Johnson, 782. 783 Weston V. Massachusetts General Hospital, 622. 771, 7.59 Weston V. Weston, 513 TABLE OF CASES. 1071 (References are to sections.) Wetherall v. Harris, 292 Wethered v. Safe Deposit & Trust Company, 759, 806 Wetmore v. Parker, 268, 269 Wetmore v. St. Luke's Hospital, 461 Wettengel v. Gormley, 588, 602 Wetter v. Habersham, 25, 108 Wetter v. Walker, 576 Weybright v. Powell, 594 Weymouth v. Irwin, 668 Whall V. Converse, 545, 547 Whalen, Ex parte, 808 Whalen v. Nesbet, 356 Wharton v. Barker, 547 Wharton v. Masterman, 638 Wheeler v. Bent, 254 Wheeler v. Brewster, 489, 507, 510 Wheeler v. Fellows, 269 Wheeler v. Humphries, 783 Wheeler v. Wheeler, 281, 321 Wheeler v. Wood, 768 Wheeler, Goods of, 258 Wheelock v. American Tract So- ciety, 610, 619 Whelen's Estate, 59, 269, 611, 798, 800 Whetton's Will, 327 Whetwood v. Winston, 593 Whipple V. Eddy, 111, 128, 331 Whisnand v. Fee, 734 Whitby V. Mitchell, 627, 628 Whitcomb v. Rodman, 461, 46(6, 487, 816, 817 Whitcomb v. Taylor, 594 Whitcomb's Estate, 611 White V. Bailey, 392 White V. Brocaw, 710 White V. Casten, 247 White V. Cole, 414, 426 White V. Commonwealth, 562 White V. Dillon, 92 White V. Helmes, 229 White V. Hicks, 698 White V. Holland, 558 White V. Hopkins, 52 White V. Howard, 28, 34, 152, 153, 607, 673 White V. Kaufmann, 755 White V. Keller, 22, 152, 312 477, 478 White V. McKeon, 25, 645 White V. Massachusetts Institute of Technology, 2, 473, 474, 503, 532, 535, 598, 778 White V. Mayhall, 326 White V. Starr, 102, 409 White V. Trustees of British Mu- seum, 206, 227 Whitney v. Twombley, 108 White V. Wilson, 109 White V. White, 528, 562 White's Estate, 688, 744, 746 White, Goods of, 248 White, In re, 2, 220, 473, 649 White's Will, 104, 105, 106, 120, 132, 248, 249, 449, 450 Whited V. Pearson, 729 Whitehead v. Gibbons, 764 Whitehead v. Thompson, 752 Whitehouse v. Curgill, 752 Whitelaw's Ex'r. v. Sims, 320, 366, 390, 406, 408, 422 Whitelaw v. Whitelaw's Adm., 401 Whitely v. King, 449 Whiteman v. Whiteman, 96, 98 Whitenack v. Stryker, 208, 218 Whitesides v. Cooper, 659, 665 Whitesides v. Whitesides. 48 Whiting's Appeal, 303, 308, 673 Whitman v. White, 787 Whitney v. Dodge, 31, 35, 626, 635, 636 Whitney v. Twombley, 97 Whitney's Will, 164 Whiton V. Whiton, 49, 74, 79 Whitty, In re, 538 Whorton v. Morgane, 562 W^icke's Estate, 315 Widowson's Estate, 301, 331, 808 Wigan V. Rowland, 198 Wicgin V. Swett, 609 Wight V. Wallbaum, 341 Wikoff's Appeal, 161, 186 Wilber v. Wilber, 137 Wilburn v. Wilburn, 136 1072 TABLE OF CASES. (References are Wilbourn v. Shell, 229, 276 Wilbur V. Wilbur, 344 Wilcke V. Wilcke, 151 Wilcox V. Rootes, 283 Wilcoxon V. Wilcoxon, 127, 325, 333, 415, 429 Wiidberger v. Cheek, 472, 498, 544, 551, 742, 797, 820 Wild V. Brewer, 287 Wilday v. Barnett, 774 Wilde V. Holtzmeyer, 141 Wilder v. Rowland, 466, 467 Wilder v. Ranney, 692 Wiley V. Gregory, 576 Wiley's Estate, 234, 236, 237, 238 Wilhelm v. Calder. 550, 580, 666 Wilkes V. Bannister, 532 W^ilkes V. Burns, 50 Wilkins v. Allen, 467 Wilkins V. Hukill, 340, 341, 346 Wilkins v. Ordway, 513 Wilkins v. Taylor, 199 Wilkins v. Young, 140 Wilkin's Succession, 241 W^ilkinson v. Adam, 467 Wilkinson v. Chambers, 562 Will's Estate, 127, 194 Willard's Estate, 289, 293, 820 Willett V. Carroll, 604 Willett V. Porter, 94 Willey's Estate, 162, 314, 639, 647 Williams v. Allen, 468 Williams v. Ashton, 432 Williams v. Burnet, 170 Williams v. Burrows, 689 Williams v. Duncan, 545, 572 Williams v. Emberson, 723 Williams v. Freeman, 162 Williams v. Herriek, 684 Williams v. Jenkins, 680 Williams v. Knight, 522, 533, 561, 742 Williams v. Leech, 684 Williams v. McKeand, 506 Williams v. Neff, 744 Williams v. Nichol, 754 Williams v. ISToland, 46 Williams v. Pearson, 643 to sections.) Williams v. Pope, 236 W'illiams v. Robinson, 382 Williams v. Spencer, 388, 393 Williams v. Tolbert, 53 Williams v. Tyley, 248 Williams v. Veach, 459 Williams v. Williams, 94, 108, 273 274, 384, 437, 659 Williams' Estate, 507, 803 Williams, Goods of, 183, 185 Williams, In re, 59, 611, 752, 803 Williamson v. Chamberlain, 076 Williamson v. Hall, 596 Williamson v. Nabers, 401 Williamson's Will, 46, 227, 341 Willis V. Mott, 205, 216 Willock V. Xoble, 89, 93 Willoughby v. Motley, 73 Wills V. Spraggins, 324, 339 Wills V. Tanner, 333 Wilmer v. Borer, 73 Wilmot V. DeMill, 511 Wilmot V. Wilmot, 551, 580, 613, 643 Wilson V. Anderson, 52 Wilson V. Beddard, 180 Wilson V. Bryan, 663 Wilson V. Carrico, 52 Wilson V. Denig, 665 Wilson V. Fosket, 294 Wilson V. Fritts, 288, 296 Wilson V. Gaston, 312, 340 Wilson V. Hall, 675, 739, 745 Wilson V. Mitchell, 97, 102, 117 Wilson V. Morris, 559 Wilson V. Ott, 290 Wilson V. Perry, 819 Wilson V. Stephens, 819 Wilson V. Tappan, 313 Wilson V. Turner, 684 Wilson V. White, 548 Wilson V. Wilson, 271, 593, 689, 723 Wilson V. Wright, 576, 622 Wilson's Appeal, 414 Wilson's Estate, 23, 112, 122, 321, 323, 384, 386 TABLE OF CASES. 1073 (References are to sections.) Wilson, In re, 195, 344, 431 Wilson's Will, 276, 302, 362, 385 Wiltbank's Appeal, 602 Windham v. Chetwynd, 191 Windisch, etc., Co. v. Opp, 329 Wineland's Appeal, 186 Wing V. Mix, 462 Wingrove v Wingrove, 411 Winkler v. Simons, 466 Winkley v. Kaime, 487, 819 Winn V. Bartlett, 597 Winn V. Bob, 237 Winslow V. Kimball, 197, 198 Winslow, Ex parte, 188 Winsor v. Odd Fellows Associa- tion, 522 Winstanley, In re, 684 Winstead v. Bowman, 231 Winter's Estate, 546 Winter mute v. Heinly, 808 Wise V. Foote, 97 Wise's Estate, 752 Wisener v. Maupin, 133 Wistar v. Scott, 566 Wiswell's Will, 450 Withers v. Patterson, 341 Withington v. Withington, 208 Withy V. Mangles, 521 Witt V. Cutter, 335 Witt V. Gardiner, 211 Witter V. Mott, 203 Wogan V. Small, 278 Wolf V. Bollinger, 254, 260, 274, 276 Wolfe V. Wilsey, 54 Wolfer V. Hemmer, 561, 562, 564, 572, 574, 576, 684 Wolff e V. Loeb, 471 Woman's Missionary Society v. Mead, 142, 466, 489, 538, 539 Wood V. Bullard, 546 Wood V. Devers, 414 Wood V. Hammond, 153, 692 Wood V. Kice, 569 Wood V. Lane, 96, 102, 334 Wood V. McGuire, 545 Wood V. Mason, 466, 473 Wood V. Paine, 28, 643, 644, 647, 807 'Wood V. Roane, 242 Wood V. Seaver, 739 Wood V. Wood, 272, 528, 565, 570, 572 Wood's Estate, 44, 473 Wood, In re, 497, 546, 629, 632, 781 Woodbridge V. Banning, 312 Woodbridge v. Winslow, 637 Woodburn's Estate, 602, 727, 737 Woodburne v. W^oodburne, 676 Woodbury v. Obear, 105, 389 Woodlill V. Patton, 244, 250, 449' Woodhouse v. Meredith, 483 Woodley v. Findlay, 571 Woodley, In re, 186 Woodman v. Woodman, 482, 659, 660, 664 Woodruff V. Marsh, 539, 641, 642, C48, 655 Woodruff V. Taylor, 324, 339 Woods V, Drake, 290, 291, 292 Woods V. Evans, 72, 73 Woods V. Fuller, 806 Woods V. Nelson, 341 Woods V. Woods, 752, 764 Woodside's Estate, 475 Woodward v. Goulstone, 434, 437, 441 Woodward v. James, 409, 512, 555, 602, 614, 7,59, 763 Woodward v. Stubbs, 659 Woodward v. Sullivan, 400 Woodward v. Walling, 673 Woodward v. Woodward, 264 Woodward, Goods of, 254 Woodward, In re, 531 Woodworth's Estate, 775 WooUey v. Paxson, 551, 742 WooUey v. Woolley, 202, 278 Woolery v. Woolery, 278 Woolmer's Appeal, 507 Woolsey's Will, 384 Wooster v. Cooper, 576, 595 Wooster v. Fitzgerald, 690, 691 Wooten v. House, 681 1074 TABLE OF CASES. (References are to sections.) Wooten V. Redd, 461, 467, 473 Worcester v. Worcester, 545 Word V. Whipps, 172 Wordin's Estate, 602 Workman v. Dominick, 191, 192, 199 Worley v. Daniel, 52 Worley v. Taylor, 689 Worman v. Teagarden, 470, 674 Wornack v. Smith, 540 Worth V. Worth, 758 Worthington v. Klemm, 47 Wotton, Goods of, 186 Wray, v. Field, 799 Wren v. Coffey, 53 Wrenn v, Bradley, 681 Wright V. Bell, 553 Wright V. Brown, 656, 657, 658 Wright V. Charley, 658, 676 Wriglit V. Denn, 470 Wright V. Fultz. 352, 353 Wright V. Gooden, 659 Wright V. Jewell, 315, 406 Wright V. Lewis, 109, 210 Wright V. M. E. Church, 521 Wright V. Minshall, 279 Wright V. Shaw, 549 Wright V. Smithson, 312 Wright V. Tinsley, 79 Wright V. Wakeford, 219 Wright V. Weston, 774 Wright V. Wright, 70, 206, 298, 433, 691 Wright, Goods of, 187 Wuesthoff V. Germania Life Ins. Co., 44 Wunderle v. Wunderle, 150 Wurt V. Page, 550 Wyatt V. Berry, 216 Wyche v. Clapp, 66, 67, 68, 69 Wyeth V. Stone, 526 Wyckoff V. Wyckoff, 490, 752, 753, 754 Wylie V. Lockwood, 522 Wyman v. Brown, 52 Wyman v. Symmes, 199 Wyndham v. Chetwynd, 227 Wythe V. Henniker, 765 Yale University, In re, 154, 644 Yancey, Ex parte, 586 Y'ardley v. Cuthbertson, 414 Yarnall's Will, 237 Y'ates, In re, 589 Yawger v. Y'awger, 719 Yearance v. Powell, 72 Yeatman v. Haney, 674 Y'erby v. Yerby, 282, 283 Yerkes'i Estate, 769 Yetter's Estate, 530, 576 Yetzer v. Brisse, 576 Yingling v. Miller, 643, 647 Yoe V. McCord, 319 Y'ong V. Sant, 117 Y^ore V. Cook, 31 Yorke's Estate, 405, 406 Yost's Estate, 804 Youndt V. Y^oundt, 437, 450 Young V. Earner, 390 Y^oung V. Benton, 771 Young V. Davies, 526, 593 Young V. Grove, 673 Young V. Harkleroad, 462, 663, 676 Y'oung V. Holloway, 339 Y^oung V. Kinkead, 467, 561, 562, 564 Young V. Mclntire, 470, 503 Y'nung V. Mallory, 121 Y'oung V. Miller 94, 97, 108, 382 Y^oung V. Morehead, 570 Y^oung V. Mut. Life Ins. Co., 576 Y'oung V. Sadler, 788 Y^oung V. Snow, 135, 140 Young V. Wark, 48, 330 Young V. Young, 70, 619, 724, 727 Youngs V. Youngs, 507 Young's Appeal, 280, 288, 554, 5.58 Young's Estate, 46, 58, 162, 166, 466, 820 Young, In re, 93 Young's Will, 199, 331 Younger v. Duffie, 183 Youse V. Forman, 248, 260, 276. 314 TABLE OF CASES. 1075 (References are to sections.) Zane v. Kennedy, 691 Zanesville Canal & Manufacturing Company v. The City of Zanes- ville, (J55 Zavitz V. Preston, 565, 570 Zeile, In re, 269 Zentner's Lstate, 772 Zerega v. Pereival, 230, 419 Ziegler v. His Creditors, 139 Zillmer v. Langduth, 684 Zimlich v. Zimlich, 385 Zinimer v. Sennott, 613 Zimmerman v. Hafer, 162, 467, 468 Zimmerman v. Zimmerman, 278 Zirkle v. l-eonard, 487 INDEX. (References are to sections.) ABATEMENT (of legacy), definition, 771, 747 where order of abatement directed by testator, 7/1 ^_ order of abatement where no provision by testator, 7/2-/78 residuary legacies, 772 general legacies, 773 demonstrative legacies, 774 division of fund, 774 specific legacies, 775 no abatement of legacies for value, 763, 7/6 ABANDONMENT (of legacy or devise), effect on devolution, 744 efl"ect on charge, 754 ABATEMENT of contest by death of party, 325 ABILITY, degree of, requisite to make will, 97 to transact business not conclusive of testamentary capacity, 9b but is inconsistent with idiocy, 100 admissible in evidence as affecting capacity, 397 to answer questions not conclusive, 398 ABOVE, meaning of, 474 ABSENCE of subscribing witness from probate does not invalidate will, 373 ABSOLUTE passed fee at common law% 501 ABSOLUTE INTEREST (in personalty) is the interest prima facie created by testament, 595 , created by words that would create a tee-tail m realty, &9o whether created by power of disposition, 595 ABSTRACT QUESTIONS, charge upon, not reversible error, 333 equity will not permit suit for construction upon, 806 ABSTRACTER (of title) may testify to probate and contents of will de- stroyed after probate, 439 ABSURD WILL. See Injustice of Will ACCELERATION of payment of legacy by termination of life estate, 802 of remainder by refusal to accept life estate, 737 See Legacies ACCEPTANCE necessary to vesting of gift, 663 of devise, when constituting election, 723 , . _^ , of devise, when fixing personal liability for charge upon devisee, /o4 of devise charged with legacy gives what remedies to legatee, /bl ACCRUAL to surviving members of class, 550, 551 of income, 604 ACCRUED SHARES. See Accrual ACCUMULATIONS valid if not perpetuity, 638 Thelluson's will, 638 statutory rule, where in force, 638 for charitable purposes, 642 during life estate, to whom payable, 605 trust for, when valid, 623 1077 1078 INDEX. (References are to sections.) ACKNOWLEDGMENT of will as deed does not invalidate, 44 of signature by testator to witness a substitute for signing in pres- ence, 215 but not of signature by witness to testator, 215 of will before magistrate equivalent to one witness, 217 of signature by other than testator, how made, 215 of signature not substitute for publication, 228 ACQUAINTANCE may express opinion of sanity if he testifies as to facts on which opinion is based, 390 ACQUIESCENCE in statements of others may be good rogatio testiin, 237 of testator in statements of others may be good acknowledgment or publication, 226 ACRE, gife of, void for uncertainty, 488 ACREAGE, when gift by, passes estate in common, 588 ACTION. Contest not civil action, 323. See Contest. conditions restraining beneficiary from bringing, 680, 683 to construe will, 806, 817 See Construction, Suit to Obtain. ACTIVE SERVICE defined, 233 ACTIVE USES, 614 See Trusts. ADDING WORDS, by parol, 168, 810, 820 by construction. 473, 676 after execution by, testator, 299 by legatee, 302 by stranger, 301 ADDITIONAL LEGACIES, 798-800 See Cumulative and Substitutional Legacies. ADEMPTION, definition, 779 is not revocation. 279 by sale of chattel bequeathed, 780 no ademption by slight change in form, 781 distinguished from revocation, 781 from satisfaction applying to realty, 782 by compensation, 783, 784 by testator in loco parentis, 783 by testator not in loco parentis, 784 by what gifts eflected. 785 distinguished from advancement, 786 what is not ademption of release of debt, 501 ADJUDICATION. Order admitting will to probate is adjudication of necessary facts, 313 ADMINISTRATION. See Probate. right of person entitled to, to contest, 325 ADMINISTRATION EXPENSES, whether debts, 602 ADMINISTRATOR, person entitled to be, as next of kin, may contest will, 325. but public administrator can not, 325 included under "Representative," 533 of beneficiary under will may sue for construction, 808 ADMISSIONS. See Spoliated Will, Evidence. ADOPTED CHILD, not "issue" to prevent lapse, 526 whether causing revocation, 290 INDEX. ^^'^^ (References are to sections.) ADOPTION (of child) is consideration for contract to devise, 72 whether part of performance, t5^ what is breach of contract for, iV . , 4- ^„A ADULTERINE BASTARD, legitimated by intermarriage of parents and andTlfuf included under "Heirs of the Body," 520 adulter" if consideration for contract to make a will, vitiates con- mi's taken 'belief in existence of, when not insane delusion, 106, 107 gift to one living in, with testator, 411 ADVANCEMENTS, definition, 788 crenerally merged in will, 78b constitutes ademption if made after will, i86 specifically provided for by te^stator, 78/ what gifts are advancements, '88 when evidence of, is inadmissible, 38b "ADVANCES," meaning of, 787 . ADVICE, whether words of, create trust, 611 "ADVISE," whether creating trust, 611 ADVISORY when verdict of jury is, 331, 333 1?FEC1T0N of testator for beneficiary important as affecting justice of will in undue influence, 426, 427 MSirS t;SJ^'Sissible to show affection or lack of it, AFFIDAVITS (of subscribing witnesses) used at probate, 320 whether admissible on contest, 367 AFFINITY relative by, not included under name of class 531 538 nfphew by affinit/not included in gift to nephew. 531, 538 "AFrER.'" Gift of property "after" payment, when amounting to charge. after 'payment of debts, whether charge, 764 when Rebutting presumption of satisfaction, -0. AFTER-ACQUIRED REALTY not devisable at common law, 142, 489 ^but-iSht^pass^tVtUieation after realty was acquired, 309 made devisable by statute, 142, 48J statute not retroactive. 489 classes of statutes, 489 o-eneral gift, 489 statutes making after-acquired f^^tyPass by general g statutes making it pass only when intention clea , AFTER-BORN, vested remainder opening to let m, bbl AGE (of legatee) effect on payment of legacy, 618 ^(StsTatirnraW'anced on testamentary capacity, 102 ^^™ irS^Snt' dl^^f beLficiary, presumption of undue influence, 414 AGENT, will in favor of. See Business Relation. AGREEMENT to make will. See Contract to make Will. as to probate and contest of will, 340 1080 INDEX. (References are to sections.) ALIBI, evidence of, admissible to disprove execution, 379 ALIEN. Devise of realty to alien at common law, 150 bequest of personalty to alien at common law, 150 devises and bequests to aliens by modern statutes, 151 Iowa Rule, 151 New York Rule, 151 can not contest, if not qualified to inherit, 325 non-resident, included in heirs, 512 ALIENAGE as affecting testamentary capacity, 87. . ALIENATION, absolute power of, when inconsistent with mere life es- tate, 572 ALIENATION, RESTRAINT ON, in general, G25 is not concerned with time of vesting, 02G is not made valid by possibility of future legislation, 62G validity of restranits on, 634, G35 rule against alienation extended to prevent iierpetuities, G35 what classes of jJi'operty included, G35 what gifts violate rule, G35, G36 term of years, violation of rule, G36 partial validity of restraint for a term, 636 condition in total restraint of alienation invalid, G8i validity of conditions in partial restraint of alienation, 684 ALIMONY, gift for, not "provision," 293 judgment for, does not operate as revocation of gift to wife, 609 "ALL and every" children, gift to, not in 'common, 589 ALLOWANCE of widow, affected by election, 734 "ALSO," efi'ect of, 414 ALTERATION in circumstances as revocation, 280-286 in estate as revocation, 278, 279 SUBSTANTIVE LAW. ALTERATION OF WILL, definition, 298 ineffective attempt at, is not revocation, 260 before execution valid, but can not show testator's intention to ex- clude child, 298 certificate of, in attestation clause, 433 power of testator to alter will, 297 effect of alteration, 299 by other than testator, 300, 302. See Spoliation. EVIDENCE OF ALTERATION. extrinsic evidence of date of, 433 burden of proof as to alteration, 431 New York Rule, 432 presumptions, if will in custody of testator, alteration presumed to have been made after execution, by testator, 432 if will not in custody of testator, no presumption that testator made alterations, 432 ALTERNATIVE CONTINGENCY, 674 See Conditions. ALTERNATIVE GIFTS, See Alternath^ Provision. ALTERNATIVE PROVISION, invalidity of, as a perpetuity, docs not in- validate entire will, 630 AMANUENSIS, signature of testator by, 174 signatui-e of witness by, 220 AMBIGUITIES, patent and latent, distinction once insisted on, 823 ignored on sound principle at modern law, 823 INDEX. l-OSl (References are to sections.) AMBIGUITY IN WILL, 817, 818, 819 whether necessary for admission of extrinsic evidence, 81/, 818, 81J, 820. A]\IBULATORY, will is essentially, 49, 50 "AMONG," calls for per capita division, 554 AMOUNT (of gift), uncertainty as to, does not make interest contingent, 660 AMUSEMENT, gift for, not valid charity, 654 ANCESTOR. Gift to "heir" in life of ancestor means "children" or "hen- apparent," 514 -■■, i^rOQ devise by ancestor to heir treated as descent, 5»J ANIMALS, whether given by bequest of stock, 497 ANCILLARY PROBATE, 315 "AND" construed "or," 473 ANGLO-SAXON WILL, 8 ANIMUS ATTEST ANDI, necessary in execution, 217 ANIMUS MANENDI, in questions of domicile, 27, 32 ANIMUS NUNCUPANDI necessary in nuncupative will, 236 ANIMUS REVOCUNDI necessary to revocation by act on instrument, 256 ANIMUS TESTANDI defined, 44 Tint dpnendent on use of word "will,' 44 preveX hislrument from taking effect till death of testator, 49 necessary at execution, 180 absence of, invalidates will, 173, 175 lacking where undue influence, 126 necessary in nuncupative wills, 236 evidence of animus testandi, 380 See ExECX^TioN, Evidence of. presumed from execution, 47 ANNUAL PAYMENT of income is presumed, 600 ANNUITY, definition, 607 distinguished from gift of income, 607 gift of annuity out of income, 607 duration, 608 apportionment, 609 whether cnargecl on realty, 758 from what time computed, 8u3 ANTE-NUPTIAL CONTRACT, effect of, on capacity of femme-covert. 91, JZ prevents wife from claiming against will, 281 prevents widow from contesting, 325 bequest in lieu of, creates case for election, /I/ , , «o. ANTICIPATION (restraint upon) of married woman's separate estate, 624 "ANY" read as "all," 473 •, n j- p-p gift over if "any" of several devisees should die, b/b ANSWER in contest, 329 APOPLEXY does not necessarily destroy testamentary capacity, 116, 384 APPEAL, contest is not, 323 but is in nature of, 323 from judgment in contest, 337, 338 from decree in construction suit, 812 APPENDANT POWERS, hoAV created, 468, 689, 695 what powers are not appendant, 690, 691. See Powers. APPOINTEES, when not affected by failure to exercise power, 579 1082 INDEX. (References are to sections.) APPOINTMENT, power of, failure to exercise does not defeat equitable remainder, 579 of power, what is a valid, 698 APPORTIONMENT of appreciation of fund, 602 of income on death of beneficiary, 606 of annuities, 609 APPOSITE, signature opposite end of will, 187 APPOSITIVE use of "heir," 556 APPRECIATION of securities, 602 APPURTENANCES. See Realty. ARBITRATION, whether contest can be submitted to, 346 AREA, gift of, void for uncertainty, 488 ARREARS of annuities payable out of principal if income deficient, 607, 803 ARRANGEMENT of residuary clause, 507 ART, gift to promote study of, is charity, 645 ASCENDANTS not included in descendants, 527 "AS HEREINAFTER PROVIDED" treated as surplusage, 689 ASSENT to devise of homestead, 138 ASSESSMENTS not "taxes," 602 but are "repairs and improvements," 602 ASSETS, 762, 766. See Debts. ASSIGNEE, of beneficiary, whether, can sue for construction, 808 ASSIGNMENT of chose in action, when testamentary, 56 where a will good as assignment of policy, 136 ASSIGNS does not affect rule as to lapse, 739, 740 and successors of trustees, extent to which they may exercise powers, 739 of donees, of powers, 692 ASTERISKS, incorporation by, 164 ASTRONOMICAL OBSERVATORY is educational charity, 646 ASSUMPSIT lies for breach of contract to make a will, 78 lies for legacy, when, 802, 803 ASSURANCE. See Insurance, Fire Insurance, Life Insurance. ASYLUMS, gifts to, are charities, 648 "AT MY DECEASE," gift to those living at, fixes class then, 545 ATTACHMENT, contingent remainder not subject to, 663 ATTAINDER, effect on testamentary capacity, 84 ATTESTATION, 188, 224 See Extrinsic Elements. what is subject of, 201-208 whether attestation requires publication, 228 ATTESTATION CLAUSE, signature above, is at end, 183 not necessary, 223 valuable as evidence, 223 if unsigned, does not invalidate holographic will, 230 certificate of alteration, 433 ATTESTING WITNESS attests capacity of testator, 207 must see testator sign or hear him acknowledge signature, 203-207 must sign in presence of testator, 209-214 can not validate will by acknowledging his signature not made in presence of testator, 215 INDEX. 1083 (References are to sections.) ATTESTING WITNESS— Continued . simultaneous presence not necessary, 216 must sign animo attestandi, 217 at request of testator, 218 form of signature, 219, 220 validity of signature by other, 220 place of signature, 221 necessity of publication before, 225-228 competency of, 191-200 See Competency. competency of witnesses to nuncupative will, 238 validity of gift to, 196 may sign will for testator, 177 if competent at execution is competent on contest, 363 weight given to evidence of ,necessity of calling, 366, 367 absence of, does not invalidate will, 373 nor death, 373 nor lack of memory, 372 nor denial of facts of execution, 374 may give opinion as to insanity of testator, 388 may testify to absence of undue influence, 429 ATTORNEY, appointment of, to settle estate, not will, 40 statements of, may serve as acknowledgment or publication, 226 when statements of, are error, 333 can not consent to verdict unsupported by evidence in contest, 346 can not testify to confidential communications, 364 unless not professional, 364 or unless subscribing witness, 365 presumption arises from character of attorney who supervises exe- tion, 375 drafting will by, 413 where attorney is executor, 413 where attorney is beneficiary, 413, 414 of beneficiary, will drawn by, 414, 415 authority to attorneys in management of estate is not trust, 614 ATTORNEY IN FACT can act for donee of power, 692 ATTORNEY FEES in probate and contest, 345 in construction suits, 813 ATTORNEY GENERAL represents the state in charitable trusts, 655 AUTRE VIE, estate per, 570 AUTHORITIES, value of, in construction, 459 B BAD GRAIVIMAR may be ignored if intention manifest, 471 BALANCE of specific fund held specific, 767 "BALAJ^CE" equivalent to residuum, 506 BANISHMENT of husband as affecting testamentary capacity of wife, 89 BANK, when deposit in, passes as money, 496 BANK-BOOK, when assignment of held will, 56 BANK NOTES. See Money. BANHv STOCK. See Stock. BANKER, gift of money passes money deposited with, when. 496 order on, when testamentary, 56 BANKRUPTCY of beneficiary accelerates payment of legacy, 802 1084 INDEX. (References are to sectious.) BAKE TRUSTEE, See Trusts. "BARN" does not include buggy-house, 494 BASE FEE. See Conditions, Issue. BASTARDS. See Illegitimates. BEING, child in. See En Ventre sa Mere. gift to those in being at testator's death not perpetuity, 631 BELIEF of witnesses not substitute for acknowledgment, 205 BENEFICIARY, law controlling as to capacity of, 36 not exerting influence, 129 may be identified by unincorporated document, 169 may sign will for testator, 177 are not competent witnesses, 193, 194 spoliation by, avoids interest, 302 may propound will for probate, 317 can not contest where not disinherited in part, 325 error by court in indicating beneficiaries tq jury, reversible, 385 will drawn by, who is relation of testator, undue influence presumed, 409 will drawn by, void at Roman law, 414 presumption of undue influence where will is drawn by, 414 competent to prove handwriting of testator, 446 how designated, where gift to husband and wufe, 511 to "heirs," 512 who may be beneficiaries in charitable gifts, 643, 644 in charitable trusts, 643 uncertainty of beneficiary allowed, 643 in gifts of income, 604 restriction of, under power, 690 whether beneficiary can sue to construe, 808 BENEFIT, whether devisee can take for his own, 685 BENEFIT CERTIFICATE, when assignment of, held will, 56 BENEVOLENT PURPOSE, not neciessarily limited to charitable, 654 BEQUEATH, definition, 2 prima facie applies to personalty, 473 but may be used of realty, 473 BEQUEATHABLE, what is. See Property. BEQUEST, definition, 2 "BETWEEN" read as if "through," 473 requires per capita division, 554 heirs of two or more, 558 relatives of two or more, 558 BIGAMY a material circumstance where causing will, 427 BILL (in equity) necessary in construction suit, 810 BILL OF EXCHANGE, whether testamentary, 55 BILL OF SALE, when testamentary, 55 BIRTH (of issue), condition as to, 677 what is subsequent birth of child. 290 revocation of will by, 282, 28V, 296 BISHOP, devise to, not restraint on alienation, 15LENDING of realty and personalty in residuary clause, encct of. T") how done, 757 BLANKS, effect of, in will, 184, 185 in purpose, prevents charitable gift, 654 , INDEX. 1<^SS (References are to sections.) BLIND, testamentary capacity of, 117 Hcc Testamentary Capacity. what is presence of, 214 _ whether will must be read over to, 4/, ^8^ fraud upon, by pretended ix-v'ocation, 2o5 BLOOD RELATIONS, iicc Relations, Relatres. BON \ FIDE PURCHASER, under power, takes good title, 696 when not bound by equitable election, /I/. BOND not required of life tenant of personalty who has power of dispo- sition, 5i)8 1 rua whether required of life tenant in general, 51)8 ^"^heuSfgifl orspecinc. genera, or ae.non.tvative, 707-770 BONUS, whether income or principal, 602 BOOK DEBTS. See Debts. BOOK ENTRIES, of advancements to beneficiary, (87 are conclusive, 788 BOOKS, whether furniture or not 492 gift to publish religious, is charity, b4J BORN, meaning of, 545 See Class, En Ventre sa Mere. BOUNTY, whether devisable, 146 BREACH of contract, to devise, 76 _ of contract to make a will, when it exists, <9 of condition. -S'ec Condition ,i„,,;«,hip 147 interest on breach of condition, whether devisable, 147 devolution of, 507, 582 BREACH OF TRUST. See Trusts, Protection of Remainderman. BROTHER of executor competent, 199 "BROTHERS" may include in deed at execution, 530 includes half-blood, 5.30 when not indicating class, 543 BUGGY HOUSE is not a barn, 494 BUILDING, gift of, for charity, 646, 647 BURDEN OF PROOF, definitions, 369 in contest generally, 330 ambiguous term, 369 whether it shifts, 369, 385, 400 as to execution, 370 as to mental capacity, 382 as to undue influence, 405 where beneficiary draws will, 414 as to revocation, 448 revocation bv lost will, 45.5 as to spoliation, 431, 434, 449 in alteration and spoliation, 431 in lost and spoliated wills, 434 in destroyed wills, 449 in holographic wills, 446 in nuncupative wills, 447 BURIAL, expression of wish concerning, not will, 40 BURIAL GROUND, devise for, 488 BURNING, revocation by, 247 1086 INDEX. (References are to sections.) BUSINESS. Ability to transact business as test for testamentary ca- pacity, 96 inconsistent with idiocy, 100 admissible in evidence as affecting capacity, 397 share in, passes as credits, 498 BUSINESS MANAGER, gift to, raises no presumption of undue iuflu- ence, 416 BUSINESS RELATIONS between testator and beneficiary raise no pre- sumption of undue influence, 416 CALCULATION. Erroneous calculation of amount, when ignored, 797 when binding on beneficiary, 788 CANCELLATION as revocation, 249 (S'ee Revocation. "CANCELLED," whether writing word "cancelled" on will is a cancella- tion, 249 CANCELLING, revocation by, 249 presumption of. /S'ee Presumption. CAPACITY to make will. See Testamentart Capacity, law controlling capacity of beneficiary to take, 36 to commit crime, not test of testamentary capacity, 96 to make contract, not test of testamentary capacity, 96 of testator is attested by subscribing witnesses, 208 of devise, not determined by order of probate, 341 gift void for want of capacity of beneficiary, 745 CAPITA PER. See Per Capita and Per Stirpes. CAPITAL, when applicable to annuity if income deficient, 607 CARRIAGE-HOUSE is not a barn, 494 CASES. Value of adjudicated cases in construction, 459 CASH, gift of. See Money. CATHOLIC (Roman), condition as to professing religion, 682 CELIBACY, condition requiring, when void, 681 CEMETERIES, gift for public, is charity, 651 but not for private, 651 except by special statute, 651 CERTAINTY. Names of members of class added for certainty, 543 of beneficiary, 610 of purpose of trust, 610 CERTIFICATE of notary in Louisiana law for nuncupative will, 241, 242 CESTUI QUE TRUST. Extent of interest, 662 power of, over estate, 622 when allowed to sue for construction, 808 CHAMPERTY, rule against, effect on devise of disseised realty, 144 CHANGi; OF DOMICILE, effect on will, 32 CHANGE OF INTENTION, evidence of, in undue influence, 422 CHANGE OF LAW, effect on evolution of property, 467 CHANGING WORDS by construction, when permitted, 473, 676 by parol, not allowed, 816 See Extrinsic Evidence. CHAPEL, gift for private, 649 INDEX. 1087 (References are to sections.) CHARACTER of attorney who supervises execution, admissible in evi- dence, 375 of testator admissible on question of spoliation, 445 of persons interested in destroying will, 445 CHARGE (of debts) does not include commission of executor, 602 on realty, iice Debts. CHARGE (of court), form of charge as to testamentary capacity, 97 in contest of lost will, 353 inferences of fact must not be charged as law, 414 CHARGE ( of legacies ) . See also Legacies. essentials of, 333 show intention to create fee, 561 of support of others does not reduce estate to one pur auter ril, 570, 573 for support determines duration of indefinite devise, 573 for support, whether trust, 613 distinguished from condition, 751, 752 of legacy, how enforced, 760 of annuity, effect on payment of legacies, 803 interest on legacies charged on property, 804 of taxes on property, 602 CHARITABLE DEVISE. See Charity. CHARITABLE TRUSTS. See Cy Pees. CHARITY. In general — what time before testator, will in favor of charity, must be exe- cuted, 25 what amount can be given to charity, 25 what law co'ntrols in gift to, 31 definition, 639 equivalent to eleemosynary, 639 rule against perpetuities subject to, as to time of vesting, 640 gift to non-existent corporation, 640 not subject to rule against restraint on alienation, 641 gift over from one charity to another, 640 Beneficiaries — who may be, 643 need not be certain, 643 discretionary power of executor, 643 unincorporated, voluntary association, 643 public corporation, 644 private corporation, 644 Charitable purposes — what are — education, 645 public libraries, 646 astronomical observatory, 646 aid of poor and destitute, 647 lodging houses, 647 hospitals and asylums, 648 religion, 649 masses and prayers, 650 cemeteries, 651 parks, 651 condition of negroes, improvement of, 652 change in legislation. 652 1088 INDEX. (References are to sections.) CHARITY— Continued. purposes not charitable — sport, t)54 hospitality, 654 See Cy Pkes. CHAKTER. Uift during extension of charter is a perpetuity GS6 CHATTELS. See Peksonalty. CHATTELS, REAL. See Leaseholds. CHECK, bank deposit, subject to passes as "money," 490 CHILD. And see also Children. power of testator to disinherit, 23-25. expression of wish for care of, not will, 46 surrender of, consideration for contract to devise, 72 birth of, did not revoke will of father at common law, 282, 287 effect of birth of child at modern statute, 287-296 where parent is childless when will is made, 287 where parent is not childless when will is made, 288 omission of child by mistake, 121, 288, 291 "having no child," meaning of, 289 "subsequent birth" of child, meaning of, 290 pretermitted child, rights of, by statute, 291, 296 not presumed to exert undue influence over parent. 409 includes children, 522 does not inchide grandchild, 522 unless by context, 524 does not include step-children, 522 nor illegitimates, 522 may include illegitimates by context, 525 restricted by context to "sons," 526 en ventre sa mere, a member of class, 545 when vested remainder opens to let in after-born, 661 gift over on death without "leaving," 676 CHILD (en ventre sa mere) as affecting revocation, 289 is a "child," 521 is member of class, 545 gift to, as affected by rule against perpetuity, 628 is person in being, 633 CHILDREN. .S'cp also Child. gift to, is not naming of after-born child, 293 when equivalent to heirs, 517 definition, 522 does not include step-children, 522 nor illegitimates, 522 by context may be synoymous with issue, 524 describing class, 541 gift to, of two or more, 558 when words of limitation, 561 prima facie a word of purchase, 561 when gift to A and his children creates a fee-tail. Rule in Wik^s Case, 567 CHILD-B'EARING, effect upon meaning of "heir," of passing age r ", 515 passing age of, not affecting rule against perpetuities, 629 effect of passing age of, on condition, 677 effect of passing age of, 802 CHINA included in furniture, 492 CHURCH, gift to poor of, is charity, 647 gift for chtirch purposes is charity, 649 INDEX. 1089 (References are to sections.) CHOSES IN ACTION. See Personalty, Notes, Stock. ClRCUMSTANEiJ, alteration in, as revocation, 280, 286 CIKCUMSTANTIAL evidence of undue influence is, 404 OITIZENSHir. Diverse gives U. S. courts jurisdiction in will cases, 807 CITY, gift to, 154 charitable gift to, 644 CIVIL ACTION, contest is not, 323 CIVIL LAW. See Roman Lavv^. CLAIMS, condition as to presenting, against estate of testator. 680 CLASS, gift to a, defined, 540 when ascertained, 540, 546 what constitutes gift to, 541 what does not constitute gift to, 542 gift in severalty not gift to, 542 effecting of naming members of, 543 exclusion from, 543 when ascertained, 545 when fixed at execution of will, 545 prima facie fixed at death of testator, 545 time for fixing, given by will, 545 when fixed after death of testator, 546 child, en ventre sa mere, a member of, 545 efl'ect of postponing time of distribution, gift to "heir," 547 gift to others, 548 when fixed at time of vesting, 549 lapse in gift to common law rule, 550 lapse in gift to modern statutory rule, where .lot applying, 551 where appljing. 551 context shows whether lapse is intended, 551 whether gift to, vested or contingent, 656 efiect upon vesting of gift to class to be determined in the future, 656 restriction to class of gift under power, 690 CLASSES, of mentally afflicted, 99 CLAUSE OF ATTESTATION. See Attestation Clause CLAUSE OF REVOCATION. See Revocation Clause. CLEAR LANGUAGE necessary to cut fee down to less estate, 574 CLERGYMAN, gift to. See Undue Influence — Pkesumption. condition as to costume of, is valid, 649 CLOSE. See Realty. CLOSET, gift of articles in, 494 COAL included in "household goods," 493 CODE NAPOLEON as affecting American Law of Wills, 20 CODICIL, defective, does not revoke will, 263 valid, republishes will, 307 can not be probated without will, 314 construed with will. 462, 470 revoking disposition in will causes intestacy, 466 does not revoke will beyond absolute inconsistency, 758 COERCION, eftect on will, 133 See Duress. COHABITATION. Condition to prevent cohabitation of husband and wife is void. 681 effect of unlawful cohabitation on presumption of undue influence, 411 1090 INDEX. (References are to sections.) COLLATERAL ATTACK upon order of Probate, 313 not allowed where court probates will away from county seat, 315 on judgment not allowed, 339, 340 on decree in construction suit, 808 COLLATERAL ISSUES can not be tried in contest, 330 COLLATERAL POWERS. See Powers. COLLATERALS not included in descendants, 527 COLLEGE, gift to, as charity, 645 COMMISSION of executor, whether included in charge of debts, 602 COMMITTEE. See Guakdian, Guardianship. COMMON, gift to town for, 686 COMMON DISASTER, death in, 740 COMMON, ESTATE IN, how created, 588, 589 gift, "share and share alike," 589 created at common law by gift to two or more, 590 COMMON FORM of probate, 312 COMMON, INTEREST IN, distinguished from joint interest, 579 COMMON LAW. Court will take notice where common law prevails, 41 COMMON, tenancy in. See Common, Estate in. COMMON, tenants in. See Common, Estate in, COMMUNITIES as beneficiaries, 154 COMMUNITY PROPERTY, testator can devise only his share of, 139 election between, and gift by will, 715 COMPARISON of genuine papers admissible to show handwriting, 378 COMPENSATION. See Contribution. COMPETENCY of witnesses in action on contract to make a will, 81 COMPETENCY (of subscribing witness), what constitutes, 191 of beneficiary, 193-196 of spouse of beneficiary, 197, 198 of heir of beneficiary, 199 of probate judge, 199 of executor, 199 of creditor, 199 of convict, 199 of husband of testatrix, 200 to what extent statutes upon competency apply in Probate, 198 of witnesses to nuncupative will, 238 of witnesses at Louisiana law, 242 of witness at common law, 3^0 at modern statutes, 361, 365 of attesting witness at execution renders him competent on contest, 363 of beneficiary to prove handwriting of test, 446 of beneficiaries in nuncupative wills, 447 COMPLETION (of will), date of, 25 COMPROMISE, agreements as to contest by way of compromise, 346 COMPl'TATION (of time) to determine violation of rule against perpetu- ities, 626 CONCUBINE, gift to, where void, 24 CONCURRENT WILLS, 66 CONDITION, PHYSICAL, of testator important in undue influence, 126 428 See Undue Influence — Evidence. CONDITIONS important as showing that instrument is will, 53 ali'ecting part of will preferred to one affecting whole, 64 INDEX. 1091 (References are to sections.) CONDITIONS— Continued. in restraint of second marriage of widow, 466 gifts deieated by, pass under residuary clause, 507 subsequent, fee on, 563 in restraint of second marriages, valid, 571 remainder over on breach of, 582 when "dying without issue" treated as, 593, 594 gift of life interest upon happening of, does not show intent to create that interest in any event, 597 residence at specified place condition of receiving support, 6U4 as to costume of minister is valid, 649 requiring remaindermen to survive till determination of life estate to take, creates vested interest, 062 subsequent, to support, effect of failure of, 662 subsequent, vested remainder on, 662 "if he had an heir" fulfilled on birth of heir, 663 that remainderman survive life tenant, whether creating vested in- terest, 663 upon which estate vests, 664 subsequent, divesting vested legacy, 608 classes, 672 precedent and subsequent, distinguished, 672 condition distinguished from motive, 6/3 legatee need not be notified of, 673 trust distinguished from condition, 673 construction of conditions, 674 double condition, 674 failure of condition precedent, 675 failure of condition subsequent, 675 "dying without issue" or "death without issue," as condition, 676 death without "leaving" child, 676 death "under" given age held to mean death under age without issue, 676 gift over, if "any" if several devises should die, 676 birth of issue, 677 support or services, 678 of paying for realty devised, 678 reformation of beneficiary, 679 presenting claims against testator's estate, 680 restraint of first marriage, 681 restraint of second marriage, 681 partial restraint of first marriage, 681 • distinguished from limitation, 681 enforced where condition precedent, 681 condition requiring divorce, 681 religion — whether condition that devisee shall profess certain religion, valid, 682 preventing contest of will or litigation thereon, (J83 validity of conditions in restraint of contest as to devises and lega- cies," 083 repugnant to nature of estate devised, 684 in restraint of alienation of fee, 684 compared with limitation, 084 compared with gift of life estate only, 084 in restraint of alienation of estate less than fee, 084 against bankruptcy, 685 gift over on insolvency, 685 as to use of property, 686 against murder of testator, 687 as to exercise of power of sale, 090 precedent, when consent to exercise of power is. 603 1092 INDEX. (References are to sections.) CONDITIONS— Continued. distinguished from cliarge, 751, 752 against contest does not forbid construction suit, 814 wills on. /S'ee Contingent Wills. CONDITIONAL FEE. ^S'ee Conditions, Fee, Fee-tail. CONDITIONAL LIMITATION on marriage or remarriage, 4GG, G81 distinguished from condition, 681 CONDITIONAL REVOCATION, 263, 275-277 See Kevocation. CONDUCT may constitute acknowledgment, 205 of testator admissible on qixestion of capacity, 397 of beneficiaries when admissible to show undue influence, 426 good, of beneflciary, condition precedent to payment of legacy, 679 when amounting to election, 720 may estop from denying written election, 7.32 CONFIDENCE, expressions of, as creating trust. See Precatory Trust. •CONFIDING," whether creating trust. See Precatory Trust. CONFIDENTIAL COMMUNICATIONS inadmissible if made to attorney, physician, etc., who is not subscribing witness, 364 testator waives disability by calling upon such confidant to act as subscribing witness, 365 CONFIDENTIAL RELATIONS between testator and beneficiary may cre- ate presumption of undue influence, 416 CONFLICT OF LAW. See Law Governing Will. in case of revocation, 454 CONFIRMATION (of will). /S'ee Republication. CONFLICTING WILLS, effect of, as revocation, 268, 269 probate of, 322 CONJECTURE, court can not resort to, in construction, 48, 745, 822 CONSANGUINITY, relations by, prima facie intended, 522, 529, 531 CONSENT of husband to testament of wife, 89 what is consent, 89 to marriage, condition requiring, 571 CONSEQUENCES of will must not be misstated by court to jury, 333 of will as alfecting mental capacity and undue influence, 642 See Injustice of Will. CONSIDERATION, what is, for contract to devise, 72 legacies upon, 776 CONSOLIDATION of contest proceedings, 323 CONSTRUCTIVE CONVERSION. See Conversion. CONSTRUCTIVE TRUST. See Trust, Resulting Trust. CONSTRUCTION, by what law governed, 29 prefers condition afl'ecting part of will to one affecting whole, 64 scope of, 456 defined, 457, 458 value of precedent in, 459 compared with Rules of Property, 459 not means of altering will, 460, 461 strives to determine intention of testator, 461 can not prevent injustice of will, 464 against partial intestacy, 466, 475 against disinheritance, 467 when particular residuary clause preferred, 467 implication by recital, 468 of will passing both realty and personalty, 469 harmonizes inconsistent provisions if possible, 470 not affected by illiteracy or ignorance of testator, 471 effect of context, 471, 473 vested interests in personalty preferred in construction. 667 INDEX. 1093 (Rtfeyen^s are to sections.) CONSTRUCTION— Ct^ntinued. of conditions, ST'i of condiiioiis in partial restraint of alienation, G84, 688 of conditions against bankruptcy, 685 of coiiditicns as to use of property, iJ86 of powers, 690 suit to obtain, 806-817 when suit will lie, 806 wquity will determine immediate conduct only, 806 equity will not determine legal rights, 80o except in quieting will, 806 what court has jurisdiction, 807 who are proper parties, 808 can not be made means of contest or reformation, SO'J pleadings, 810 notice, 811 decree, 812 on whom binding, 812 costs, 813 attorney fees, 813 estoppel, 814 error, 815 evidence admissible to determine, 816, 823 not restricted to construction suits, 816 not admissible to show intention direct, 816 admissible to show surrounding facts, 817. See also ExTRmsic Evidence. CONSTRUCTION of statutes upon spoliated wills, 434 CONSTRUCTIVE DESTRUCTION as revocation, 252 CONSUMABLE ARTICLES not subject to life interest, 596 CONTEMPLATION. Will made in contemplation of marriage, 281 CONTENTS (of will), subscribing witnesses need not know, 227 of lost will, 354 of spoliated will, how proved, 440 CONTENTS, gift of, of house, chest, etc., 494 CONTEST. Omitted children, as to whom will is void, need not contest. 295 period within which contest may be brought, 321 is jurisdictional, 321 but decree may be vacated for fraud or mistake, 321 statute does not apply to infants, insane persons, etc., 321 whether contest necessary if inconsistent wills are oflered for probate, 322 nature of contest, 323 statutory proceeding, 323 is not appeal, 323 nor error, 323 does not test validity of specific gift, 323 parties necessary to contest, 324 who may contest, 325 ■ ' application of estoppel to contest, 320 who may defend, 327 pleadings, 328 petition, 328 form, 328 issue in contest, .329, 331 whether fixed by pleadings, 329 whether demurrer available, 329 whether answer necessarv, 329 1094 INDEX. (References are to sections.) CONTEST— Continued. procedure at trial, 330 right to open and close, 330 right to dismiss contest, 330 right to jury purely statutory, 331 power of court, 332 charge of court, 333 reference to contested will, 333 must not usurp functions of jury, 333 what evidence supports verdict, 334 verdict, form of, 335 judgment, form of, 335 efiect of judgment, 335 direct attack on judgment in contest, 337 appeal from judgment, 337, 338 error to judgment, 338 collateral attack on judgment not allowed, 339, 340, 341 except where court had no jurisdiction, 341 as where testator is alive, 341 /S'ce Judgment — Jurisdiction. power of court over costs, 344 and attorney fees, 345 contracts concerning contest, 346 upheld unless fraudulent, 346 condition in restraint of, C83 what is, in construing condition against, 683 efiect of delay on account of, on interest, 804 can not be had in construction suit, 809 condition against, does not forbid construction suit, 814 CONTEXT, modifying meaning of "efTects," 478 effect of, on gift of contents, 494 may pass realty or chattels as "money," 496 when prevents interest from passing, 499 may extend meaning of heirs. 514 modifying meaning of children, grandchildren and great-grandchil- dren, 523, 524, 525 effect on term "issue," 526 limited to children, 526 affecting meaning of "family," 528 affecting meaning of "relatives," 529 extends meaning of "nephew and nieces" to grandnephew and grand- niece, 531 modifies meaning of cousin, 532 affecting use of "surviving," 546 affecting time of fixing assets in gift to "heirs." 547 may show that "death" or "dying without issue" means death after testator, 676 See also Construction. CONTINGENT ESTATE. See Contingent Interest. .CONTINGENT GIFT. See Contingent Interest, Contingent Will. CONTINGENT INTEREST is devisable, 145 disqualifies beneficiary thereof as attesting witness, 194 when income from is intestate property, 466 devolution before time for vesting, 466 is subject to rule against perpetuities, 628 definition. 656 distinguished from vested interests, 657 early vesting preferred in construction, 663 INDEX. 1095 (References are to sections.) CONTINGENT INTEREST— Continued, interest in realty. gilts to a class, 656, 665 Classes of contingencies, 664 contingency of event, 664 what may be selected as contingency, 664 contingency of person, 665 created by gift to class, 665 interests in personalty. possession, 66ii legatee entitled to protection of, 666 vested interests preferred in construction, 667 postponement of possession for intermediate interest creates vested legacy, 668 not for intermediate interest passes vested interest, 669 unless given only by direction to pay legacy, 669 power of disposition, does not create, 669 early vesting of, preferred, 670 how defeated, 671 CONTINGENT REMAINDER. See Contingent Interest. CONTINGENT WILLS. Definition, 60 includes what wills, 60 does not include conditions affecting part of will, 60 validity of contingent wills, 61 examples of contingent wills, 62-63 are void on breach of condition, 696 contingency distinguished from recital of motive, 62, 63 partial contingency preferred in construction to total contingency, 64 CONTINUANCE of mental condition of permanent type presumed, 384 CONTRACT, confused with wills, 54, 55 to make a will, where really will, 55 instrument may be part contract and part will, 55 by beneficiary with testator is not revocation, 244 to support alleged child does not revoke will disinheriting child, 266 to sell realty, effect as revocation, 279 to distribute estate, bars contest, 326 not to probate will, upheld, 346 concerning contest, 346 upheld if not fraudulent, 346 land contracted to be purchased passes by will, 482 land contracted be sold passes by will, 482 of sale, is not conversion if not enforceable, 704 antenuptial, bequest in lieu of causes election, 717 acceptance by devisee is contract to pay charge, 754 (to make will), law controlling, 40 will made in pursuance of, is revocable, (59 validity of contract, 70 revocability of will, make in pursuance of contract, 70 necessity of all elements of valid contract, 71 including consideration, 72 what is valid consideration, 72 certainty of terms, 73 statute of frauds, 74 part performance, what is, if contract to devise, 75 breach of contract, 76 construction of contract, 77 performance of contract, 77 remedies at law for breach, 78 1096 INDEX. (References are to sections.) CONTRACT— Continued. remedies in equity, 79 when equity will grant relief, 79 election of remedies, 80 evidence of contract, 81 competency of witnesses in suit on contract to devise, 81 parties to action, 82 limitations, when statute of, runs, 83 when contract does not adeem devise, 780 CONTRADICTION. Extrinsic evidence not available for, 820 CONTRIBUTION, definition, 791 does not exist if property applied to debts in order of abatement, 791 exists of property taken out of order of abatement, 792 failure of title, 793 CONTROL of husband, whether gift free from, creates separate estate, 624 CONVENIENCE, postponement for, is not perpetuity, 629, 637 sale for convenience of estate does not effect conversion, 704 CONVERSION. Law controlling in, 34 of money for purchase of realty, 148 converted stock, 497 gift of property to "heirs" after, 515 direction to convert creates power of sale, 690 definition, 699 how directed, 699 conversion of realty, 700-705 effect of mandatory general power of sale, 700 if mandatory limited power, 701 if discretionary power, 702 implied power of sale, 703 judicial sale does not affect conversion, 704 sales for convenience of estate do not effect conversion, 704 • double conversion, 705 of personalty into realty, 706 reconversion, 707 effect of conversion, 708 time at which conversion is effected, 709 election to take property, free from, 718 extrinsic evidence inadmissible to show intention to convert. 820 CONVEYANCE. What is, 676 effect of conveyance of testator in his lifetime upon dower, 713 CONVICT, will of, 86 gift to, 155 may act as attesting witness, 199, 360 may contest will, 325 COPARCENER. See Common, Estate ix. COPY. Whether certified copy of will is admissible, 368 CORN stored in cribs does not pass under gift of growing crop, 494 CORPORATION, restriction on gift to, as to amount, 153 member of, competent attesting witness to devise to corporation, 194 included in "legatees," 535 misnomer in gift to, 539 gift to, where two crops have same name, 539 when gift to trustees, not gift to, 539 gift to non-existent, whether perpetuity, 640 INDEX. 1097 (References are to sections.) CORPOKATION— Continued. gift to, on ultra vires condition, 675 dissolution of, before vesting, cauwes lapse, 740 misdescription or misnomer, 819 See also Private Corporation, Municipal Corporations. CORPUS. One entitled to support can not have possession of, 605 CORRECTION OF WILL at probate, 314 of erroneous description by construction, 487 not attempted in equity, 816, 819 CORRESPONDENCE. See Letters. COSTS in probate and contest, 344 in construction suits, 813 CO-TENANTS. See Common, Estate in. COUNTY. Charitable gift to, 644 COURT of probate powers, 315 powers of, in contest, 332 having jurisdiction to admit foreign will to probate, 356 gift dependent on consent of, a perpetuity, 636 what court has jurisdiction in suit to construe will, 807 COURTHOUSE, Will may be probated outside of, 315 COUSIN excludes illegitimates, 532 unless by context, 532 when including illegitimates, 529 prima facte is first cousin, 532 excludes first cousins once removed, 532 excludes second cousins, 532 unless by context, 532 meaning of second cousin, 532 COVENANT. See Contract. COVERTURE as affecting testamentary capacity, 89, 93 See Testamentary Capacity. CREDIBLE, what is credible witness, 191 See Competency. CREDIBILITY of witness, question for jury, 333, 334 CREDITORS can not be prejudicially affected by devise, 149 of testator, competency of, as subscribing witness, 199 of legatee may propound will for probate, 317 of testator can not contest, 325 of heir, whether allowed to contest, 325 ^ of life tenant defeated by sale under power, 696 of donee of power, rights of, 577, 697 when satisfaction presumed froin gift to creditor, 795 when satisfaction not directed in will, 796 when directed, 797 of life tenant, when can sue to construe, 808 "CREDITS," passes interest in business, 498 CREED, condition restricting marriage to spouse of certain, 681 condition requiring devisee to profess certain, 682 CREMATION, expression of desire for, not will, 46 CRIME, loss of testamentary capacity on account of conviction of, 86 incompetency as witness, 199 CRIMINAL RESPONSIBILITY not test of testamentary capacity, 95 "CROPS," gift of "growing," does not pass harvested crops, 494 CROSS EXAMINATION of witness at Probate, whether allowed, 320 1098 INDEX. (References are to sections.) CilOSS-REMAIXDER. See Issue, Failure of Issue, Remainder. CRUELTY OF TESTATOR, admissible in, undue influence, 428. CUM ONERE, when realty is devised, 7(36 CUMULATIVE AND SUBSTITUTIONAL LEGACIES, definition. 798 express provision in will conclusive, 798 presumptions in absence of express provision, 7C9 motive, effect of assigning, 799 incidents of substitutional and cumulative legacies, 800 CURIOSITIES. See Furniture, Household Good.s. CURRENCY. See Money. CURTESY, husband can not be deprived of, 137 CUSTODY of will as affecting presumption of revocation, 449, 450 CUSTOM. Wills valid by local custom, 12 realty devisable by parol by special custpm, 232 CUSTOMARY LANDS. See Custom. CUTTING included in tearing, 248 CY PRES, history of, 655 whether judicial or executive, 655 class of American jurisdiction, 655 D DANCING, prohibition of, in club for educational purposes, 646 DATA for will, furnishing, by beneficiary, is not undue influence, 414 DATE of will, what is, 25 of alteration may be shown by declarations of testator, 423 DAUGHTERS. See Child, Children. DAUGHTER-IN-LAW. See Child, Children, Consanguinity. DE DONIS. See Fee Tail. DEAF, testamentary capacity of, 117 See Testamentary Capacity gift for education of, is charity, 645 DEATH. Will can not take effect until death of testator, 49 will in contemplation of, 62, 63 effect of approach of, 16 if beneficiary does not revoke will, 285 will dates back to death of testator on probate, 358 of subscribing witness does not invalidate will, 373 of legatee, before execution, when gift not v^oid, 530 of testator, when time for fixing class, 545 of testator, class of "heirs," prima facie fixed at, 548 "without issue," gift over on, creates an estate-tail if indefinite failure of issue, 564 of testator, income estimated from. 601 of life tenant, apportionment of income on, 606 of annuitant, apportionment of annuity on, 609 of trustee does not defeat ordinary trust, 619 of trustee defeats discretionary power, 619 unless express provision for successors, 619 of testator, facts at, determine validity as to Rule against Per- petuities, 626 of testator, gift vesting at, not perpetuity, 631 gift to one in being at, not perpetuity, 631 INDEX. 1099 (References are to sections.) ^^"^i^^c^s^if g!lf over on, is prima facie, death in lifetime of testator. time at which death defeats, if fixed in will, controls 07 G under given age construed to mean death without issue, 67 b condition as to, (370 j^f^o+a when death of person whose consent is necessary to power, defeats power, 093 . . , . ^- f. 7oo of testator, election must be made within certain time after, 7Zy of beneticiary before vesting causes lapse, 739 of trustee does not cause lapse, 739 of beneficiary accelerates payment of legacy, mi legacy payable in one year after, of testator, 803 DEBENTURES. /See Stock. DEBT, admission of, not testamentary, 58 of testator paramount to devise, 149, 7/7, ^U5 may be charged on realty by nuncupative will, 240 creation of new, no revocation, 278 Whether general, specific or demonstrative, 767, 768, 770 etiect of direction to pay unenforceable, 498 ,,.,.„, of partnership not released by gift of individual debt, 501 "debts and expenses" include legacies, 507 condition as to requiring payment of testator's debt to legatee 680 when donee of power may exercise power to pay his own debt, 691, 695, 697 charge of, on specific personalty, ^59 out of what fund payable at common law, /b^ at modern law, 762 charge of debts, 702 exoneration of personalty from debts, 703 how debts are charged on realty, 764 liens on realty payable out of personalty, 765 unless not to secure debts of testator, 7bb legacy in satisfaction of debt, for value, 77b when gift of, is adeemed, 780 of legatee may be set ofl' against legacy, 794 direction to pay. rebuts presumption of satisfaction, /97 DEBTOR, gift to, whether satisfaction, 794 "DECEASED LEGATEE," meaning of, in gift to class, 535 • DECEDENT, communications with, when incompetent, 361 DECEIT, when undue influence, 128 .„ . , . i onr. inducing testator to believe that his will is destroyed, 255 ASfee Fraud. DECLARATIONS OF HEIR as to his own feelings admissible to show feelings of testator, 387 . ■, • -v.^^ Aor. of subscribing witness as to sanity of testator, inadmissible, 425 of strangers admissible if res gestae, 425 otherwise, not, 452 DECLARATIONS OF BENEFICIARIES inadmissible where for inter- est of beneficiary, 401 primissible where against sole interest of beneficiary, 401 ■ £ not WW against interest of others than party making them, 401 admissible to show feelings, 401 in undue influence, 424 in revocation, 451 1100 INDEX. (References are to sections.) DECLARATIONS OF TESTATOR. I — In general — when incompetent as declarations of decedent, 361 when made competent by statute, 362 not admissible if made in course of professional consultation, 3(54 unless made to subscribing witness, 365 II — As to execution, 376, 377 admissible if res gestae, 376 or as to handwriting, 377 or mental condition, 377 otherwise inadmissible, 377 III — As to capacity, 400 admissible to show state of mind, feeling, etc., 400 but not to show truth of facts thus stated, 400 not admissible if too remote, 400 IV — Undue influence — when admissible to show, 423 V — Alteration and spoliation — to show date, 433 in spoliation, 435, 437, 438, 441 as to contents of spoliated will, 441 VI — Holographic will — when admissible, 446 VII — Revocation — as to circumstances of destruction, 443 as to revocation, 450 VIII — Construction — whether admissible to show intent, 820 DECREE. In construction, 812 See Judgment. DEDUCTIONS of advancements from share of legatee when directed by testator, 787 of debt of legatee from legacy, 794 DEED. Confusion of will with, does not invalidate, 44 direction to deliver, on death of testator, not enforceable, 46 confused with will, 52, 53 may be incorporated in will, 106 revocation of will by, 265 revoking deed must be proved, 455 gift of, does not pass realty, 494 may be shown to be mortgage, 814 DEFAULT in exercise of power, eflfect of, 694 of heirs, or of issue. See Failure of Issue, Issue. DEFEASANCE of estate by non-performance of condition subsequent, 675 DEFEASIBLE FEE, 563 DEFECT of parties in suit, to construe, 808 DEFECTIVE written will is not nuncupative will, 236 will can not revoke. 264 codicil does not republish will. 307 deficiency of personalty as creating charge, 750 DEFINITE FAILURE OF ISSUE. Gift over on, not perpetuity, 631 See Issue. And see Abatement. DEFINITE AND INDEFINITE failure of issue, 572 591—594. INDEX. 1101 (References are to sections.) DEFINITIONS. Abatement, 771 ademi^tion, 779 alteration, 298 advancement, 788 bequeath, 2 bequest, 2 burden of proof, 309 class, 540 construction, 457, 458 contingent interest, 656 contingent will, 60 conversion, 699 cousin, 532 cumulative legacy, 798 "deceased legatee," 535 definition, 458 delirium, 113 delirium tremens, 114 descendant, 527 devise, 2 devisee, 2 devisor, 2 duress, 133 eccentricity, 110 election, 710 executory devise, 578 foreign will, 355 "hereinbefore disposed of," 466 heirs, holographic will, 229 idiot, 100 imbecile, 101 inherent elements, 42 insane delusion, 104 insanity, 103 interpretation, 458 "issue," 526 lapse, 738 legatee, 2 legacy, 2 lost will, 347 lucid interval, 109 monomania, 108 mystic will, 243 next of kin, 521 nuncupative will, 232 nuncupative will at Louisiana Law, 241, 242 off'spring, 526 power, 689 preparing for the ministry, 537 probate, 312 publication, 225 "read law," 537 "relatives," 529 remainder, 578 republication, 303 residuary clause, 507 residuum, 507 revocation, 244 senile dementia, 102 1102 INDEX. (References are to sections.) DEFINITIONS — Continued, servants, 534 spoliated will, 347 spoliation, 300 substitutional legacy,, 798 survivors, 536 testament, 2 testator, 2 undue influence, 125 vested interest, 656 void gift, 745 waiver, 710 will, 2 And see also Words. DELAY in offering will for probate, effect of, 316 DELIRIUM. Definition, 113 See Testamentary Capacity. * DELIRIUM TREMENS. Definition, 114 one suffering from, can not revoke will, 257 See Testamentary Capacity. DELIVERY of deed, important as determining whether instrument can be will, 52 DELUSION. (Insane), 104, 108 See Testamentary Capacity. DEMAND. When legacy payable on, 802 DEMENTIA. Senile, 102 See Testamentary Capacity. DEMURRER in contest, 329 to evidence, when sustainable, 334 DEMONSTRATIVE LEGACY defined, 770 examples, 770 abates with general legacies, 774 DENIZATION. Effect of, on testamentary capacity, 87 DENOMINATION. (Religious). condition limiting marriage to, 681 condition requiring devisee to adhere to certain, 682 DENOMINATIONAL TEACHING. Prohibition of, in school is valid, 645 DEPENDENT RELATIVE REVOCATION, 263, 275-277 See Revocation. DEPOSITION permitted at probate, 320 may be used at contest, 367 DEPRECIATION of securities, 602 DESCENDANTS synonjanouc with "issue" in primary meaning, 527 excludes collaterals, 527 excludes ascendants, 527 included under representative, 533 requires distribution per stirpes, 555 meaning of in statutes against perpetuities, 633 who are, in statutes preventing lapse, 743 DESCENT AND DISTRIBUTION. Statute of, effect on construction of will, 467 DESCRIPTION of document to be incorporated, 166 of realty by reference to plat, 484 of realty by metes and bounds, 485 of realty by popular name, 488 INDEX. 1103 (References are to sections.) DESCRIPTION— Continued. general and particular, 502 inconsistency in, reconciled, 503 when name of class added to names of beneficiaries, 543 when names of members of class added for description, 543 when "heir" description, not class, 55G of property given in remainder, 585 can not be supplied by parol, 821 DESIRE. Effect of words showing. See Precatouy Trust. DESK. Gift of contents of, 494 DESTITUTE. Gift in aid of, is charity, 647 DESTROYED WILL. See Destruction, Revocation, Spoliation DESTRUCTION (of will) as revocation, 252 effect on probate, 348 causes presumption of revocation, 442 DESTRUCTION of contingent legacy, 671 DEVASTAVIT by executor does not create right of contribution, 793 See Waste. DEVISABLE INTEREST. What property is devisable, 18, 29, 676 vested interests are, 657 and contingent interests, when, 657 on death without issue, 676 interest of legatee dying before vesting is not, 743 See Property. DEVISE. Definition. 2 of realty, by what law governed, 28 may be used if personalty, 473 prima facie passes fee-simple at modern law, 482 of realty may carry money, 482 by value, 487 of realty at valuation, 490 of rents, 491 ■ See Rents. power of, does not restrict fee, 562 where distinguished from legacy as to condition in restraint of con- test, 683 direction to devisee in fee to make certain devise, void, 684 power of, not included in power of sale, 690 charge of legacy upon specific, 758 abatement of, 777 failure of title to, 793 DEVISEE. Definition, 2 who can be, 150, 156 aliens, 150, 151 coi-povations, private, 152, 153 corporations, public, 154 convicts, 155 illegitimates, 156 subscribing witnesses, 196 has no title till probate. 313, 805 nor against creditors, 777^ 805 may defend in contest, 327 taking same interest as heir, 583 when personally liable for charge, 754 personal liability of, how enforced, 761 equity will not determine legal rights of, 806 1104 INDEX. (References are to sections.) DEVISOR. Definition of, 2 DiiVOLUTION of void legacies, 507 of lapsed legacies, 507 of void legacies and devises, 746 of lapsed legacies and devises, 744 DISAPPEARANCE (of will). Revocation presumed when, 449 of one of duplicate wills, 253 DISAPPEARANCE (of testator). Presumption of death, not conclusive, 341 DIARY when testamentary, 58 DIE WITHOUT ISSUE. -S'ee Dying without Issue, Issue. DIRECT ATTACK on order of probate for want of notice, 319 on judgment of contest, 337 DIRECTION by testator for signature, by oth^r 176 to support determines duration of indefinue devise, 573 DISABILITIES preventing limitation as to contest from running, 321 can not be tacked, 321 of some heirs enures to all, 342 of testator, See Testamentary Capacity. DISCLAIMER, of devise or legacy, devolution upon, 744 effect on charge, 754 DISCREPANCY IN WILL. See Inconsistent Provisions. DISCRETION (of trustee or executor), whether valid, 619 of executors in distribution of charitable gift, whether valid, 643 of trustees to make division creates vested interest, 664 of trustees to pay beneficiary, 685 power of sale at discretion of donee, is not controllable by court, 69G can not be exercised by survivor or successor, 692 whether power of sale to support rests in discretion of life tenants, 696 power of sale at. does not effect conversion, 702 of executor is not controllable, 764 DISCRIMINATION in distribution is not conclusive as to lack of men- tal capacity, 385 nor as to undue influence, 132 but is admissible in evidence, 385, 426 DISEASE. Effect of on testamentary capacity, 116 See Testamentary Capacity. DISINHERITANCE. Expression of, intent to cause, not wiW, 46 power of testator to cause, 385 not presumed. 467 not caused by negative words, 467 when words of exclude from class, 543 DISINTERESTED. What is disinterested witness, 191 DISMISSAL. Right to, of contest, 3.30 DISPOSING OF PROPERTY. What is. 676 DISPOSITION, Power of, effect on life estate, 576. 577 DISPOSITIVE. What words are, 58 DISPOSITIVE CLAUSE. End of, is technical end of will. 183. 186 addition of. after legacy will, 186 DISPUTING WILL. Validity of conditions against. 683 DISSEISIN. Testamentary power over realty in case of, 144 election to acquiesce in, See Election. INDEX. 1105 (References are to sections.) DISSOLUTION of corporation, causes lapse, 740 DISTRIBUTION. Class prima facie fixed at time of, 548 as in intestacy adopted in absence of contrary intention, 533 fund for future income nuist be retained, 602 when necessary to terminate trust, 618 DISTRIBUTION, Statute of. Construction of will in analogy to, pre- ferred, 467, 553, 559 DISTRIBUTIVE gift, not gift to class, 542 DISTRIBUTIVE SHARE OF PERSONALTY. Widow can not be de- prived of, 137 affected by election, 735 DIVESTING of vested gift, 656 vested remainder, 661 vested legacy, 668 DIVIDENDS. Whether income or principal, 602 DIVISION. Vesting postponed till, 663, 664 DIVORCE. Mistake as to, 120 does not revoke will, 285 condition requiring, 681 DOMESTIC ANIMALS whether passed by gift of stock, 497 DOMESTIC SERVANTS. Gift to, 534 DOMICILE. Change of, 32 effect of change of on law governing will, 32 nuncupative will made in absence from, 235 of testator at death determines jurisdiction of probate court, 315 of testator conclusively establishetl by judgment in contest, 341 law of controls as to revocation, 454 law of, determines status. 520 effect of, on question of family, 528 effect of on jurisdiction of United States courts, 807 DONEE (of power). Rights of, 600 ^vlren helan use power for his own benefit, 690, 691, 695, 697 or for that of his creditors, 697 who can act as, 692 . . , -, ^^ power of successor or survivor of original donees, bJZ when attorney can act for, 692 necessity of referring to power, 698 "DONORS" construed "donees," 473 DOUBLE CAPACITY of executor and donee of power, 695 DOUBLE CONDITION. Construction of, 674 each must be fulfilled, 676, 679 DOUBLE CONVERSION, 704 DOUBLE PORTIONS not favored in construction, 783 See Ademption DOUBLE WILL, 66 DOWER interest of wife can not be ^controlled by husband, 23 widow can not be deprived of, 13/ gift described as. is fee by modern statutes, 562 oift to step-son on condition that his mother release dower, 688 presumed in addition to devise at common law ill presumed to be superseded by devise by statute, 713 election between, and benefit under will, 711 common law rule, 712 statutorv will, 713 used with reference to personalty. 735 legacies in lieu of dower, for value, 776 1106 INDEX. (References are to sections.) DRAFT OF WILL admissible show contents of lost will, 440 not to contradict contents of existing will, 294, 816 DRAUGHTSMAN. Employment of, by beneficiary, does not raise pre sumption of undue influence, 414, 415 legacy to, creates presumption of undue influence, 414 DRUGS. Efi'ect of use of, 112 ;S'ee Testamentary Capacity. use of, does not raise presumption of permanent incapacity, 385 DRUNKENNESS, 112 iSee Testamentary Capacity. admissible to show undue influence, 428 DRY TRUST. See Trusts. DUE BILL. When testamentary, 55 DUMB. Testamentary capacity of, 117 8ee Testamentary Capacity. DUPLICATE WILL. Destruction of, is revocation, 253 effect of witnesses signing different instruments, 190 DURATION of gift of income, 599 of annuities, 607 of trust, 618 "DURING" widowhood creates life estate, 571 DURESS. Defined, 133 compared with undue influence, 133 effect of duress on validity of will, 133 DWELLING HOUSE. Condition on occupation of, 686 effect of testator's making nuncupative will away from, 235 "DYING WITHOUT ISSUE," 591, 592, 593, 594 See Issue. prima facie in life of testator, substitutional, 662 vested remainder defeasible on, 662 when estate vests on, 663 when substitutional and preventing lapse, 676 E "EACH." Gift to, not gift to class, 542 EASEMENTS pass under gift of property. See Realty. ECCENTRICITY affecting testamentary capacity, 110 See Testamentary Capacity. complicated with old age, 102 admissible as affecting undue influence, 428 ECCLESIASTICAL COURTS. Probate originated in, 312 ECCLESIASTICAL LAW. Parol will at, 232 EDUCATION. Gift for, 537 gift for, at specified college fails if college is not erected. 537 is charity, 645 cy pres applied to gifts for, 655 gift for, not defeated by death, 675 gift for, wliether adeemed, 785 "EFFECTS" prima facie passes personalty only, 478 provision for sale of, 478 including realty, 478 EFFORT. What is reasonable effort to see, 211 INDEX. . 1107 (References are to sections.) p]JECTMENT can not be maintained by devisee until after probate, 313, 805 questions of construction raised in action on, 806, 816 EJUSDEM GENERIS. 8ee Context. ELDEST, See Child, Children, Grandchild. ELECTION. Law controlling as to, in conflict, 38 of remedies for breach of contract to devise, 80 case for, not presumed, 504 definition, 710 test for necessity of, 710 partial election impossible, 710, 726 who can make election, 710, 719 election between dower and benefits under will, 711 common law rule as to necessity of election — election not necessary, 712 statutory rule — election prima facie necessary, 713 between life insurance and gilt by will, 714 when necessary, 714 between community property and gift by will, 715 between homestead rights and gifts by will, 716 between general property rights and gifts by will, 717 between trust property and gift from trustee, 717 between antenuptial contract and gift in lieu thereof, 717 to take property unconverted, 707. 718 what constitutes election to take unconverted, 718 can be exercised only by all, 719 when representatives may elect, 719 election by the court, 719 effected by common law by oral agreement, 720 or by conduct, 720 by qualifying as executor, 721 by engaging in litigation, 722 by accepting property, 723 unless by title independent of will, 723 by receipt of money, 724 effect of election, 725, 727 effect when election not necessary, 725 effect when election necessary, 726 effects estoppel, 726, 814 knowledge of rights necessary to valid election, 727 written election required by statute, 728 time at which statutory election necessary, 729 what constitutes filing, 730 whether written election can be withdrawn, 731 estoppel to deny written election, 732 effect of election, 733, 737 upon rights as heir, 733 upon rights to year's allowance, 734 upon right to distributive share in personalty, 735 upon dower in intestate property, 736 upon dependent estates, 737 causes acceleration, 737 disappointed devisees to be compensated out of refused gift, 737 when creating right of contribution, 793 "ELEEMOSYNARY." Equivalent to charitable, 639 ELEMENTS of insane, delusion, 105, 107 of undue influence, 127 of will. Sec Inherent Elements, Extrinsic Elements and Will. 11 OS INDEX. (References are to sections.) EMBLEjVIENTS pass with devise of realty, 494 EMPLOYEE of corporation, competent witness to will devising to cor- poration, 194 will in favor of. See Business Relation. EMPLOYMENT. Eflect of leaving, on gift to servants, 535 of attorney to draw will does not create presumption undue influence, 414, 415 EN" VENTRE SA MERE. See Child (en ventre sa mere). END. Whether signature of testator must be at, l&l, 187 what is end of will, 183, 187 testator must sign at, 181, 187 witnesses need not sign at, 221 ENDOWMENT. Gift for, of charity 653 ENGLISH. Early English period, 8 ENTREATY to make will, not of itself undue influence, 127 ENTRY. Right of, whether devisable, 147 in book, when conclusive, 788 ENUMERATION of specific property, when not affecting gift of entire estate, 475 eii'ect of on general description. 502 of residuar}' estate, etlect of, 506 of attributes of estate does not mcdifj' nature, 575 ENVELOPE. Burning of, does not revoke will, 247 EPILEPSY no presumption of continuance, 384 Sec Testamentary Capacity. EQUAL DISTRIBUTION of residuum, 510 "EQUAL PARTS" among those entitled to estate in intestacy, 559 EQUALITY' of distribution presumed, 468 "EQUALLY"" requires per capita distribution, 554 among "ueirs," 557 EQUITABLE RELIEF. See Equity. EQUITABLE INTERESTS are devisable, 144, 148 even if legal title is afterwards acquired, 148 conveyance of, operated as revocation, 278 subject to rule in Shelley's Case, 564 whether joint or several, 622 power of cestui que trust over, 622 rule against perpetuities applies to, 628 subject in vesting to same rules as legal, 659 created by mandatory jDower, 694 EQUITABLE SEPARATE ESTATE. Testamentary power of feme covert over, 92 EQUITY. Validity of wills at, 13 enjoins against revocation, when, 70 testamentary capacity of married woman in, 92 gives no relief where testator is prevented from revoking by fraud, 255 will not probate will. 315 nor enjoin probate, 315 can not relieve where period for contesting has elapsed, 321 contest not suit in. 323 may admit lost will to probate, 349 restrains waste of personalty by life tenant, 596 prevents murderer of testator from enjoying property, 687 INDEX. 1109 (References are to sections.) EQUITY— Continued. when equity entertains suit to -construe, 806 will not relorm a will, 809, 816 can not correct will, 816 EQUITY (of redemption), passes under will, 278, 279 EQUIVOCATION, 538, 539, 819 /S'ee Uncertainty, Misnomek, Extrinsic Evidence. ERASURE. When a "tearing," 248 ERRONEOUS description of realty, 487 ERRONEOUS RECITALS. See Mistake, Error. ERROR (proceeding in). Contest is not proceeding in, 323 does not lie to an order probating a will, 323 in charge of court, 333 lies, to judgment in contest, 338 enuring to one heir enures to all, 342 not reversible, to admit certified copy of will if no question as to genuineness on contest, 368 lies to decree in construction suit, 812, 815 ERROR, revocation by, 258, 259 ESCROW. Delivery in, directed by will, invalid, 46 ESTATE. Effect of size of, on testamentary capacity, 98 whether costs payable out of, 344 source of testator's, admissible, 386 what words pass entire, 475 passes realty and personalty, 476 of testator, in realty, effect of misstatement, 487 postponement for convenience of settling, does not violate rule against perpetuities, 629 power of sale does not per se create any, 689 what estate donee of power may convey, 690 in common, .SVc Common. in fee. See Fee. in fee-tail, See Fee-tail. in joint tenancy. See Joint Tenancy. for life. See Life Estate. in severalty, See Severalty. pur auter vie, 570 ESTATE-TAIL. Sec Fee-tail. ESTOPPEL to contest will, 326 Sec Election. to deny written election, 732 to deny construction of will, 814 EVIDENCE of contract to devise, 81 mistake not based on, is insane delusion, 105, lOf can not remove insane delusion, 107 of lops and contents of spoliated will, 270 at probate. 320 what, is sufficient to support veVdict, 334 of mental capacity. 334 at probate of foreitrn will, 357 general scope of discussion, 359 1110 INDEX. (References are to sections.) EVIDENCE— Continued. competency, common law rule, 3G0 competency at modern statutes, 361-365 communications with decedent inadmissible, 361 unless made competent by statute, 362 subscribing: witness competent at execution is competent at trial, 363 confidential coumiunicatious inadmissible if made to one not a sub- scribing witness, 364 disability waived where made to subscribing witness, 365 importance of testimony of subscribing witness, 366 necessity of calling subscribing witnesses, 367 admissibility on contest of record of evidence at probate, 368 will is admissible, 368 of alteration, 433 declarations of testator as to alteration, 433 See Execution, Testamentaky "Capacitt, Undue Influ- ence, Extrinsic Elements (of will). Revocation, Spoliated Wills, Construction, Extrinsic Evidence. EX PAETE proceeding. Probate is in nature of, 312 EXCEPTION from general bequest, 481 of property from residuary clause, 507 EXCHANGE. Power of sale does not include power of, 690 EXCLUSION from class, what is, 543 must be clear, 543 EXECUTION (of will). I — Substantive law — upon what date completed, 25 must precede death by what time, 25 of will passing realty controlled by lex rei sitae, 28 by mistake, 47 in jest, 47 formalities of, essential, 58 by one not testator does not vitiate will, 65 mistake in, 119 to invalidate will undue influence must exist at date of, 130 changes in will before, neither alteration nor spoliation, 298 defect in, cured by republication, 308, 311 whether due execution conclusively established by judgment, 341 facts of, admissible in undue influence, 429 of will, when class fixed at, 545 II- — Evidence — 1. Burden of proof, 370 extends only to preponderance of evidence, 370 2. Fresvmiptions, 371-375 of due execution if signatures are proved, 371 aided by attestation clause, 371 may prevail if witnesses forget facts of execution, 372 or are beyond jurisdiction of court, 373 or deny facts of execution, 374 presumption arising from character of scrivener who supervises execution, 375 that will on several pieces of paper was executed as found, 161 3. Declarations of testator, 376, 377 admissible if res gestae, 376 or as to handwriting. 377 or as to mental condition. 377 otherwise inadmissible, 377 INDEX. im (References are to sections.) EXECUTION (of will) — Continued. 4. Expert evidence as to handwriting, 378 comparison of genuine papers, 378 , ^ ^ o-o evidence of those familiar with handwriting of testator, 3/8 5. In general — intention of testator to make will, 380 whether opinion of witness must exist at, 393 facts of, admissible, 395 of spoliated will, 438 of spoliated will when presumed, 439 EXECUTION. When sale on, defeats lien of legacy, 760 EXECUTOR. Liability of, for contract of decedent to devise, 78 where clause appointing, added below signature invalidates wnl, 186 competency of as subscribing witness, 19'J may propound will for probate, 317 may defend contest, 327 not personally liable for costs and attorney fees, 345 is competent witness at contest, 361 included in "representatives," 533 taking as trustee is a legatee, 535 power of sale to, does not enlarge life estate in fee, 57 b discretion of, 643 gift to, in addition to legal fees, held conditional, 688 When donees of power by implication, 692 donee of power to be distinguished from, 695 qualifying as, when election, 721 necessary for collection of debts due decedent, 801 EXECUTORY DEVISE. Definition, 578 how defeated, 578, 575 rule against perpetuities applies to, 628 EXECUTORY TRUST. See Trust. EXEMPTION. See Homestead. EXILE of husband, effect on testamentary power of wife, 89 EXONERATION of personalty from debts, by nuncupative will, 24§ of personalty by charge on realty, 756 of personalty from debts, 763 of realty prima facie from personalty, 762 EXPECTATION of heir can not be devised, 146 words of, effect, See Precatory Trust. "EXPENSES." What are, 002 EXPERT EVIDENCE as to handwriting, 378 as to sanity, 389, 392 who are experts as to testamentary capacity, ^89 can not supplant jury, 392 or give opinion on domestic law, 392 EXPLANATORY WORDS may reduce fee to life estate, 474 See Context. EXPRESS CONDITIONS See Conditions. EXPRESS REVOCATION, See Revocation. EXPRESS TRUST. -See Trust, 613 EXTINCxUISHMENT OF CHARGE. See Charge. of power. See Power. 1112 INDEX. (References are to sections.) EXTRINSIC ELEMENTS of ordinary written will, I — History — History of Law of Wills, 157 Statute of Wills, 157 Statute of B'rauds, 157 History of Law of Testaments, 157 Modern Statutes, 158 II — Writing — will must be in, 159 materials necessary, 159 language in which will may be written, IGO writing on several pieces of paper, IGl so where pieces are pasted together. Kil incorporation of documents, 1(32-109, 180 requisites to incorporation, 102-100 document must be properly referred to, 162, 103 and must be in existence at execution of will, 162, 165 and must correspond to description, 102, 100 incorporation by asterisks, 104 New York rule, 104 eli'ect of incorporation, 167 reference to oral instructions, 108 unincorporated document may be used for identification, 169 III — Signature of testator — seal not necessary, 170 how signature may be affixed, 171 form of signature, name of testator, 172 signature by mark, 173 what is mark, 173 signature by other than testator, 174 formalities of signature by other person, 174 signature by other must be in presence of testator, 175 and at his express request, 176 form of request, 176 by whom signature may be affixed, 177 form of signature by other for testator, 178 efiect of adding name of testator to mark, i79 guiding hand of testator is signature by testator, 180 place of signature upon will, 181-187 under wil's act, 181 under modern statutes, 182 what is end of will, 183-187 signature in 'attestation clause, 183 blanks in body of will, 184 efTect of blanks immediately before signature, 185 additions after signature, 186 where made after complete execution, 186 where incorporated by reference, 180 where dispositive clause is added, 186 where clause not dispositive is added, 186 where clause appointing executor is added, 186 signature opposite end of will, 187 IV — Attestation and subscription — only necessary where required by statute, 188 distinction between wills and testaments as to, 188 distinction between attestation and subscription, 189 subscribing witnesses, number of, 190 effect of addition of disqualified witness, 190 competency of subscribing witness, what is "credible" witness, 191 test of competency, 191 INDEX. ^^^^ (References are to sections.) EXTRINSIC ELE^rENTS— Continued at what time competency must exist, 1J2 who are competent witnesses 11)3 beneficiary not competent, 1J3, u* who are beneficiaries, 194 effect of release, 195 eflect of modern statutes, 190 ,107 competency of spouse of beneficiary at common law. 19 < under modern statutes, 198 _ competency of heir of beneficiary, 1J9 competency of probate judge, 199 competency of executor, 199 competency of creditor of testator, 19 J competency of convict, 199 StS t ' u'Ted t1uWrM,rwitnesses, 201-208 227 SgnaC of'tlul:: to J.„ade i„ pre-nce of witnesses, 202 may be by informal statements, 205 or by gestures, 205 or bv conduct, 205 • j. .„ onr; witnesses must have opportunity to see ^;snatuie 205 acknowledgment of will instead of signature, 200 . under statute of frauds, 206 under modern statutes, 206 ",„,,«„„ to sign or ad<„ow,edg,. attesting witness must see testaioi hi^n signature, 203, 207 ono 9ld s^o^s ■"ri;"":..t'nrots\Su.;"o.t ot ,.3.,. o^ t.. tator insufficient, 21o simultaneous presence not necessary, 2ib must attest capacity, 207 presence in what cases necessary, 209 involves mental cognizance, 209 and physical proximity, 210 what constitutes proximity, 210 _ abilitv to see with reasonable effort is essential, 210 what" is reasonable effort, 210 what witness must be able to see. 21. presence held to depend upon perception in general, 213 presence of blind, 214 witnesses must sign amnio attestadi, -i/ and at request of testator, 218 form of request, 218 what is signature of witness, 219, ^-u Tignature f? witness can not be made by other, 220 place of signature by witness, 221 order in which signatures must be affixed, 222 necessity of '-attestation clause 223 necessity of stating residence of witnesses, ^--i publication, definition, 225 what constitutes publication. 226 necessity of publication, 227 witnesses need not know contents of will, ^-' Ses nofdispense without acknowledgment of signature, 2-8 1114 INDEX. (References are to sections.) EXTRINSIC EVIDENCE. Eflfect of, in determining nature of iuBtru- ment, 53 to identify beneficiary, 169 admissible to show that name in middle of will was meant as sig- nature, 181 to show intention of testator to marry inadmissible to affect revoca- tion, 281 of intention to omit inadmissible, 294 of date of alteration, 433 to show that "children" includes all issue, 524 shows that "children" includes illegitimates, 525 to show that "nieces" includes grandnieces, 531 not admissible to create election, 717 when admissible to charge legacy on realty, 755 in what cases offered, 816 comparison of wills and testaments, 816 of intention, when admissible, 816 not admissible for reformation, 816 admissible to show surrounding facts and circumstances, 817 effect of ambiguity upon admissibility of, 817-820 admissible to identify persons and property referred to in will, 818 incorrect or ambiguous description of property or beneficiaries, 819 direct evidence of intention of testator, 819, 820 contradiction of intention of testator, 820 defective description, 821 which fails to explain will, 822 distinction between patent and latent ambiguities, 823 EXTRINSIC WRITINGS. Incorporation of, in will, 162-169 F "FACT." Meaning of, in insane delusion, 105 no revocation by mistake of, 258 FACTS AND CIRCUMSTANCES admissible to aid construction, 817 FAILURE OF ISSUE, if indefinite, creates estate-tail, 564 S^e Issue. FAILURE of gift for education at specified college, because of non-erec- tion of college, 537 of conditions, 075 FAITH CURE. Belief in, not insane delusion, 111 FALSA DEMONSTRATIO NON NOCET. See Misdescription. FALSE DESCRIPTION does not vitiate gift, when, 819 FALSE STATEMENTS. See Misdescription, Misnomer, Mistake. FAMILY. Once held indefinite, 528 when including those resident at homestead, 528 where equivalent to "children," 528 where held not to include stepchildren, 528 w'hether including wife or not, 528 where meaning "stock," 528 when including wife, 511 of person, excludes such person, 528, 604 includes adults, 604 gift for support of, income to be kept together, 604 gift to one and his, 685 FARM. Gift of personal property on, passes crops, 494 INDEX. ^^^^ (References are to sections.) FATHER OF BENEFICIARY. Will drawn by, no presumption of undue influence, 414 , i ^ oic FEDERAL COURT. Jurisdiction of, in probate and contest, 315 FEE SIMPLE. How cut down to life interest, 474 words of inheritance not necessary "OW' 182 o62 prima facie now passes by devise of realty, 482 passes by residuary clause, 482 passes by absolute gift of rents, 491 at common law, prima facte not given. 560 words of limitation necessary at common law, 560 "heirs" not necessary, 561 passed by gift "forever," 561 passed by gift "absolute, 561 passed by charge at common law, 561 mssed by gift of remainder, 561 treated by'gift to "children" or "lineage "561 Sodern statutory rule, prima Jacte created, 562 indefinite devise gives, 562, 5<0 effect of other gifts in same will, 56-, gift of "dower" is prima facte fee, o6Z not cut down by adding power of devise, o62 ^vdieTS' modern statutes created by gift which at common law created estate-tail, 568 gift over reduces, to life estate, 5/4 so limited as to be life estate only, 574 El ^^vit:.s^%7^i:z s^:L^ofSi^.ng ufe of nof reduced U'life estate by recommendation to beneficiary to dispose ■ reduci^ to' life_ estate by mandatory direction to first taker as to disposition, 574 _ not reduced to life estate by power f^ «*lf' J f when shown by power of sale, m indefinite gift, 5/5 wh n power o/ sale does not ^how intention to create, 575 not created by addition of limited power of sale ^o life estate 5/0 whethe? creatid by adding general power of sale to life estate, 576 passes absolute interest in personalty, 595 Wy be created by life tenant under PO^er 696 on condition. See Conditions. See bHELLEY s Case, kul*. FEE CONDITIONAL, 563 See Conditions, Fee Iatl. FEE TAIL, defined, 564 how created, 564 not favored in construction, 564 words creating; "heirs of body. ^^564 gift over on death "without heirs, 564 "wfflSut'issue" if indefinite f^^^^^^ ^^^X^^',;'*^ c\,e 564 not changed to fee simple by rule in .f;^"^> ^i-^'^' when created by gift tx> A and his children, 567 8ce Wild's Case. • i cpq under modern statutes where changed to fee simple, 568 where Hfe estate in first taker, fee simple m remainderman 569 wiere fee tS in first taker, fee simple in remainderman, 569 created by indefinite failure of issue 591 in personalty is absolute interest. 595 1116 INDEX. (References are to sections.) FEELINGS of testator for beneficiaries and relatives admissible as to ca- pacity, 387 evidence of change in, held inadmissible as to capacity, o99 declarations of beneficiary admissible to show, 401 admissible on question of spoliation, 445 FELO DE SE, will of, 384 FELON, will of, 86 gift to, 155 _ competency as attesting witness, 199, 360 capacity to contest will, 325 FEME COVERT, will of, 89-93 /S'ee Testamentary Capacity. FEAIE SOLE, revocation of will of, by marriage, 284 FEOFFMENT, effect of, necessity of, on law of w.ills, 10 FENDALISM, effect of, on law of wills, 9 abolition of, 16 FIGURES. Holographic will may indicate amount of legacy by figures, 230 FILING of statutory election necessary, 729 what constitutes, 730 FIRE INSURANCE does not pass under residuary clause, 507 FIRST COUSIN. See Cousin. FIXTURES, whether included in furniture, 492 /See Realty. FLATTERY, when undue influence, 128 FLOWERS, whether "articles of domestic use and ornament," 495 FORCE, See Duress. FORECLOSURE of mortgage, apportionment of profits between life tenant and remainderman, 602 as adeeming gift of mortgage, 483 FOREIGN COUNTRY, law of. *S'ee Law Controlling Will. FOREIGN JUDGMENT of Probate, conclusive, 335 FOREIGN LANGUAGE, correctness of translation from, not determined by judgment in contest, 341 will written in, is valid, 160 FOREIGN LAW, to what extent court will take notice of, 41 presumption in absence of, 41 when court will not determine, 807 Bee Law Governing Will. FOREIGN PROBATE, effect of, 335 See Foreign Will. FOREIGN WILL, definition, 355 probate of, 355-358 FOREIGNER, will of. See Alien, Denization. FORGERY (of will), burden of proof, 370 evidence of, 378 expert evidence admissible, 378 "FOREVER," passed fee at Common Law, 561 FORFEITURE, right to. not devisable, 147 of devise declared where testator is murdered by devisee, 687 FORGETFULNESS of subscribing witness as to facts of execution does not invalidate will. 372 FORM (of will). .S'ee Extrinsic Elements. INDEX. 1117 (References are to sections.) FORMALITIES of valid will, 157 et seq. Hee Extrinsic Elements. FORMS, application for, admission to Probate, 318 order fixing time for hearing, 319 notice of hearing, 315) petition in contest, 328 journal entry making issue, 329 charge of court, 333 FORTUNE, gift of entire, 475, 476 FRAUD, nature of, 122 classes, 122 fraud in execution, 123 fraud in inducement, 124 when amounting to undue influence, 127, 128 when not amounting to undue influence, 132 preventing act of revocation, 255 inducing legatee to accept legacy does not bar contest, 326 judgment in contest can not be attacked collaterally for, 340 contract with reference to probate which defrauds heir not party thereto, void, 340 as ground for revocation of written election, 731 FREE AGENCY, influence must overpower, to constitute undue influ- ence, 127 "FREE FROM HUSBAND'S CONTROL," whether creating equitable sep- arate estate, 624 FREEHOLD not cut down by use of word "loan," 570 FRIEND, will in favor of, not presumed to be product of undue in- fluence, 417 FRIENDLESS, gift to home for, is charity, 648 ' FRIENDLY SOCIETY, gift to, 643 FRIENDS, donation for hospitality to members of Society of, 054 "FROM AND AFTER" DEATH OF LIFE TENANT, gift, rests at once, 659 FRUCTUS INDUSTRIALES, disposition of, 494 FUND, gift of, carries interest, 499 division of, 774 FUNERAL EXPENSES, provision for, 651 "FURNITURE," once included everything used to furnish a house, 492 modern use, 492 does not include money, 492 FUTURE-BORN CHILDREN, effect on revocation of will, 282, 287-296 may take where gift is to class, 661 FUTURE ESTATE, can be devised when, 145-147 FUTURE EVENT. See Condition. FUTURE MARRIAGE, when children by, may take, 528, 085 FUTURE USES. See Trusts. G GARDEN. See Realty. ^ GARDENER, gift to, 535 GARRULITY, efi'ect of, on testamentary capacity, 102 GAS LEASE, 588 GENERAL BEQUEST, when passing life insurance, 500 1118 INDEX. (References are to sections. 1 GENERAL CLAUSE. See Residuary Clause. GENERAL DESCRIPTION, modified by particular, 502 GENERAL GIFT, when valid exercise of power, 698 GENERAL GUARDIAN appointed by will, 45 GENERAL INTENT prevails over particular, 462, 463, 616 GENERAL LEGACY defined, 767 examples, 767 construction favors, 767 abate before specific abate pro rata, 773 not subject to ademption, 781 GENERAL RESIDUARY CLAUSE, 505 GENERAL PERSONAL ESTATE, gift of, 475, 476 GENERAL POWER, effect of conferring. See Life Estate, Powebs. GENERAL WORDS, effect of, 462, 463, 500, 502, 616, 698 GENUINENESS of will conclusively established by judgment in contest, 341 GESTATION, period of, added to time of postponing vesting, 628 GESTURES equivalent to acknowledgment, 205 GIFT can not be made out of legacy for support only, 696 inter vivos, whether ademption, 783 GIFT OVER, after fee, held repugnant. 577 creates life interest in personalty, 597 shows that first interest is vested, 659 effect of, on validity of condition restraining contest, 683 GOOD FAITH necessarj' to valid exercise of power, 576 See Powers. GOOD HABITS, condition precedent to payment of gift, 679 "GOODS." See Household Goods. GOVERNMENTAL ACTION, gift dependent on, is perpetuity, 636, 640 gift contingent on future, violates rule against perpetuities, 626 GOVERNMENT BONDS, gift of, 497 GRATITUDE, not necessarily undue influence, 417 GRATUITY, hope of receiving, is not devisable, 140 GRANDCHILDREN, when equivalent to heirs, 519 not included with children, 522 unless by context, 524 included under children by context, 524 GRANTEE of heir can not contest, 325 of devisee may defend in contest, 327 GRAVE, gift for adornment of, valid, 651 GREAT-GRANDCHILDREN included under "children" by context, 524 GREAT-NEPHEW included under nephew by context, 531 GREAT-NIECE included under niece by context, 531 GREEK LAW, will at, 6 GROUND, gift of, how described. See Realty. GROUND RENT reserved on deed of realtv is after-acquired interest, 278 gift of, 491 GROWING CROPS pass by gift of personalty on farm, 494 GUARDIAN, whether appointment of, avoided by invalidity of other pro- visions, 296 INDEX. 1119 (References are to sections.) GUARDIANSHIP, eflfect of, on testamentary capacity, 115 one under, can revoke, competent, 257 admissibility of record of, to show capacity, 402 GUIDING, hand of witness. 219 hand of testator is signature by testator, 180 H HABITUAL DRUNKARD, testamentary capacity of, 112 susceptible to undue inlluence, 428 HALF-BLOOD included under "brother and sisters," 530 HANDWRITING. Holographic will must be entirely In handwriting of testator, 230 expert evidence upon, 378 evidence of persons familiar with, 378 comparison of genuine papers, 378 clause in, may rebut presumption of undue influence, 414 of testator may be proved by beneficiary, 446 HARDWICKE'S, (LORD), explanation of ademption, 784 HATRED is not insane delusion if based on any evidence, 105, 106 "HAVING NO CHILD," construction of, 289 HEARSAY of facts of execution inadmissible, 429 of contents of spoliated will, 440 declarations of strangers, 452 HEIR. Whether illegitimate adopted son is heir, 29 agreement to make one heir not enforceable, 73 contract to allow one to heir estate, 77 held in equity for contract of ancestor to make will, 79 is competent witness to will, 194 gift to, not a naming, 292 may contest, 325 if party entitled to contest, when can not contest, 325 favored in construction, 467 may include devisee, 479 primary meaning, 512 when including husband or wife, 513 may include heir apparent, 514 may include those who would be heirs if their parents were dead, 514 meaning extended by context, 514 meaning of, in gift of personalty, 515 same meaning presumed in whole will, 515 gift of converted property to, 515 when equivalent to next of kin, 515 when including legatees, 516 when restricted to children, 517 when restricted to heirs of the body, 518 when restricted to grandchildren, 519 when including illegitimates, 520 gift to, when class fixed, 547 gift of remainder to, when first taker is an heir, 547 gift to, requires per stirpes distribution, 555, 556 used as descriptive only, 556 "equally to," whether per capita or per stirpes, 557 ^hare and share alike, 557 when words of put-chase, 561 not necessary at common law to pass fee, 561 1120 INDEX. (References are to sections.) HEIR— Continued. prima facie word of limitation, 561 of body, estate-tail, 564 without heirs, estate-tail, 564 words of limitation by Rule in Shelley's Case, 565 devise to same persons who take as, 583 gift to, shows intention to pass as realty, 705 right of, as affected by election, 733 /S'ee Fee. as word of limitation, 561, 564 See Lapse. as word of purchase, 561, 564 HEIR APPARENT included in "heirs," 514 "HEIRS BY BLOOD" when including illegitimates, 520 HEIRS OF BODY when equivalent to heirs, 518 when including adulterine bastard, 520 /Sec Fee-tail. HENRY GEORGE. Gift to promulgate views of, valid, 653 HEREAFTER TO BE BORN, 548 HEREDITAMENTS made devisable by Wills Act, 15 HEREDITARY INSANITY admissible in evidence, 395 HEREINBEFORE, 474 HEREINBEFORE DISPOSED OF. Defined, 466 construction of particular residuary clause, 746 HISTORY OF LAW OF WILLS, where property rudimentary, 3 effect of advance in property rights, 4, 5 at Greek and Roman law, 6 effect of Roman law on English law, 7 early English law, 8 wills of realty, 8-16 feudalism, 9, 10 abolition of will by feudalism, 10 statute de donis, 11 ' local custom, 12 equity, 13 statute of uses, 14 statute of wills, 32 Hen. 8 C. 1, 15 abolition of feudalism, 16 testaments of personalty, 17-19 early English law, 17 what property disposable, 18, 19 in United States, 20 of testamentary capacity, 84 formalities requisite for wills under Wills Act, 157 formalities requisite for testaments at ecclesiastical law, 157 nuncupative wills, 232 republication, 304 probate, 312 rule against perpetuities, 626 HISTORY OF TESTATOR admissible on question of capacity, 394, 39? within limits of discretion of courts, 394 rule as to history of family, 395 HOLOGRAPHIC WILL. I — In general — definition, 229 origin of, at Roman law, 229 informal writing may be, 229 INDEX. 1121 (References are to sections.) HOLOGRAPHIC WILI^-Continued. 11 — Extrinsic formalities — witnesses not necessary, 230 must be entirely in handwriting of testator, 230 must usually be dated, 230 must be signed by testator, 230 place of deposit of will, 231 may revoke will of ordinary type, 264 holographic codicil does not republish will not in handwritijig of testator, 307 III— Evidence- burden of proof, 446 existence of will among valuable papers, 446 beneficiary, competent witness, 446 declarations of testator, 446 HOME. Nuncupative will made in absence from. 235 whether gift of, includes support, 604 gifts to homes for destitute are charities, 648 HOME PLACE. Gift of, 488 gift of articles upon, 494 evidence in devise of, 819 HOMESTEAD rights not devisable, 138 what passes by gift of, 488 gift for support at, terminates when, 604 election between homestead rights and gifts by will, 716 HOPE. Expressions of, eflfect on will, 59 See Precatory Trusts. HORSES. \Mien not stock, 497 HOSPITALITY. Gift for, not charity, 654 HOSPITALS. Gifts to free, are charities, 647 HOSTILE WITNESS. When not allowed to defeat will, 374 conduct at probate may determine character, 374 HOSTILITY. Mistake as to hostility of heirs, 120 HOUSE. Gift of contents of, 494 HOUSEHOLD FURNITURE AND EFFECTS does not pass jewelry, 478 See Furniture. HOUSEHOLD GOODS. Meaning nearly synonymous with furniture, 493 HOUSEHOLD SERVANTS. Gift to, who included, 534 HUSBAND might consent to testament of wife, 89 devise to husband by wife, where invalid, 156 of beneficiary, competency as subscribing witness, 197 of testatrix, competency, 200 not presumed to exert undue influence over wife, 410 relations with wife before marriage do not show undue influence, 412 of beneficiary, will drawn by, 414 meaning. 511 when included in "heirs," 513 right of over separate estate of wife, 624 HUSBAND AND WIFE. Joint will of, 67 HYPOTHETICAL QUESTIONS as to insanity, may be put to an expert, 389 form of, 389 1122 INDEX. (References are to sections.) I. IDENTIFICATION of property and beneficiaries admissible, 818 IDIOT, 100 See Testamentary Capacity. IGNORANCE of testator as to contents of will, admissible, 428 of existence of will gives right of election after death of beneficiary, 719 of facts prevents election from binding, 727 ILLEGAL CONSIDERATION does not support contract to make will, 72 ILLEGAL OBJECT. See Illegality. ILLEGAL PURPOSE. Trust for, is void, 610 ILLEGALITY. Construction avoiding, preferred, 621 avoided by construction if possible, 658 of purpose, defeats power, 690 partial, does not affect separable provision, 787 ILLEGITIMATES. Gift to illegitimates in esse, 156 gift to illegitimate not in esse, 156 recognition of, as affecting revocation, 290 children, when included under "heirs," 520 not included under children, 522 unless subsequently legitimated, 522 included imder "children" by context, 525 not included in "relatives," 529 unless by context, 529 not included in cousins, 532 ILLITERACY (of testator). Effect on construction, 471 ILLNESS. What is last illness, 234 ILLUSORY APPOINTMENT. Equity relieves against, 691 IMBECILE, 101 See Testamentary Capacity. IMMEDIATE GIFT vests at death of testator, 656 "IMMEDIATE ISSUE OR DESCENDANTS," meaning, 633 IMMOVABLE PROPERTY. Law controlling, 28 See Realty. IMPEACHMENT of hostile attesting witness, 374 IMPLIED REVOCATION. See Revocation. IMPLICATION. Gift by, 468 when remainder created by, 468 from erroneous recitals, 468 of power from recital, 468 power of sale created by, 689 power of sale by, may work conversion, 703 IMPORTLTNITY. When not undue influence, 127 promise to desist from, not sufficient consideration for promise lo make will, 72 IMPOSSIBILITY of event, when terminating trust, 616 of performance of condition, partv causing can not take advantage of, 678 IMPROVEMENTS. Cost of, how borne by tenant for life and remainder- man, 602 "IN ADDITION TO." Cumulative, 798 "IN CASE OF DEATH," 676 "IN LIEU THEREOF." Substitutional gift, 798 "IN ODIUM SPOLIATORIS," 434 INDEX. 1123 (References are to sections.) "IN PLACE AND STEAD THEREOF." Substitutional gift, 798 "IN TERROREM." Whether condition is, G80, 693, 085 INCIDENTS of substitutional and cumulative legacies, 800 INCLUDING meaning of, 794 "INCLUSIVE," meaning of, 794 INCOME. Gift of, pass absolute property, 491 gift of, for life passes life estate, 491 undisposed of, passes under residuary clause, 507 gift of, paisses absolute interest in personalty, 595 gift of, for life only, passes life estate, 597. gift of, apart from, principal, 599 how created, 599 not limited to support, 599 duration of gift, 600, 604 time from which income estimated, 601 how ascertained, 602 taxes, 602 stock dividends, 602 charge of support upon income, 603 who may be beneficiary, 604 whether income or support passes, 604 apportionment on death of beneficiary, 606 distinguished from annuity, 607 charge of debts and legacies on, 759 INCOMPETENT witness, signature of, does not invalidate will other- wise good, 190 communications with decedent, when, 361 court will elect for, 719 INCOMPLETE DESTRUCTION. See Revocation. INCOMPLETE WILL. Validity of, 47, 48 INCONSISTENCY in description, reconciled if possible, 503 efTect of, between two residuary clauses, 510 INCONSISTENT. Later will revokes if, 268 INCONSISTENT PROVISIONS reconciled if possible, 462, 463, 470 later prevails, 470 INCONSISTENT RIGHTS. Election between, 715 INCONSISTENT WILLS. Whether probate of, involves contest, 322 INCORPORATION of extrinsic writing in will, 162. 169 destruction of document made part of will by, does not revoke will, 252 republication need not effect, 311 INCORPORATION of partnership, efli'ect of, on gift, 497 INCREASE. 8ee Income. INCUMBRANCE on realty, when primarily payable out of personalty, 765 INDEFINITE DEVISE. Duration determined by direction to support, 573 INDEFINITE FAILURE OF ISSUE affecting Rule in Shelley's Case, 572 gift over on, not perpetuity, 631 See Issue. INDEFINITE GIFT of acreage, when passing estate in common, 588 INDEFINITE TRUST. See Misdescription, Misnomer, Uncertaintt. INDEFINITENESS. Will void for, 48 of beneficiary avoids gift, 583 INDETERMINATE WORDS. See Misdescription, Misnomer, Uncer- tainty. 1124 INDEX. (References are to sections.) INDIVIDUALS. Distinction between, gifts to, and gifts to class, 540- 542 INDORSEMENT. When testamentary, 58 INDUCEMENT. Mistake in, 120 INDUSTRY of legatee as condition to payment of legacy, 679 INEQUALITY of will not undue influence, 132 INFANCY, 88 See Testamentary Capacity. INFANTS not barred by statute fixing period for contest, 321 INFLUENCE not always undue, 127 See Ukdl'e Ixfluexce. INFORMAL INSTRUMENT as revocation of will, 263 INFORMAL ^VILLS, 58 INFORMAL WRITINGS may be testamentary, -229 INFORMATION. See Data. INHABITANTS of a town competent witnesses to will devising to town, 194 INHERENT ELEMENTS OF WILL. See Will, Elements of. INHERITANCE. Necessity of words of, at common law to create fee, 560 at modern law, 562 what are words of, 561 INITIALS of testator may be good signature, 172 signature by initials sufficient for signature, 219 INJUNCTION against revocation of will for value. "^ against probate not allowed, 315 INJUSTICE of will not undue influence, 132 if will does not show want of capacity, 385 but may strengthen other evidence, 385 of will,' court can not avoid, by ignoring intention, 464 INK. Signature in different ink, not conclusive as forgery, 379 INSANE person can not revoke, 257 not barred by statute fixing period for contest, 321 See Testamentary Capacity, Insanity. INSANITY. Slight insanity does not destroy testamentary capacity, 94 what degree of insanity destroys capacity, 95 See Testamentary Capacity, 103, 109 charge of court in, 33^3 adjudication of, admissible in evidence, 402 "INSTEAD OF" substitutional gift, 798 INSOLVENCY. Condition against, of legatee. See Conditions, Spendthrift, Trusts. INSTITUTION. Contract to devise to, 70, 76 INSTRUCTIONS in drafting mil not admissible to show intention. 820 See Data. INSTRUMENT. Incorporation of extrinsic, 162-169 INSURANCE (fire). Insurance does not pass under residuary clause, 507 INSURANCE (life). Payable to other than testator, not devisable, 136 INSURANCE POLICY. When assignment of held will, 56 INSURED can not bequeath policy unless payee, 136 INTELLIGENCE. Degree of, required to make will, 94 INDEX. 1125 (References are to sections.) INTENTION (of testator). When testamentary, though informal, 58 to make written will invalidates nuncupative will, 23b to i^Joke necessary to revocation by act manifest on instrument, 25G to revoke must appear on revoking instrument, 2bb to omit child, how shown, 292 to be deduced from words of wnll, 400 paramount rule of construction, 46 1 to be deduced from whole will, 402 to comply with law presumed, 405 to dispose of entire estate presumed, 406 to disinherit not shown by negative words, 407 to pass after-acquired realty, 489 of testator to prevent lapse, 741 of testator as to order of abatement, 771 of testator to deduct advancements, 787 of testator that legacy be paid at certain trnie, 802 of testator to be deduced from written words, 810 of testator, direct evidence of, 810 surrounding facts, etc., admissible to sh^w, 817 direct evidence of, whether admissible, hlU, S^O INTEREST on specific fund passes, 499 when context shows intention not to pass, 4JJ does not pass by gift of amount equal to specific fund, 499 undisposed of, passes under residuary clause 50/ not allowed on advancements unless specifically directed, 788 INTEREST (on legacies). /See Legacies. INTEREST (of beneficiary). Of party contesting must be proved, 325 erroneous charge as to, reversible error, 333 declarations admissible if against interest of party making them, 401 but not against interest of others, 401 of beneficiary, nature of, 022 INTEREST OF TESTATOR. Effect of misstatement, 487 INTERESTED WITNESS. See Attesting Witness, Competency. INTERLINEATION. Witness to, not witness to whole will, 217 INTERMEDIATE RENTS AND INCOME. See Income. INTERPRETATION. Defined, 458 INTERSTATE LAW. Sec Law Governing Will. INTESTACY. Result from failure of part of residuary clause, 508 distribution as in, favored, 553 gift as in, 559 INTESTATE PROPERTY. What is, 466 devolution of, 407 effect of change of law upon devolution ot, 40 i share in, as affected by election. 73.5, 7.36 when lapsed gift is intestate property, <44 INTIIMACY. See Friend. INTOXICANTS. Prohibition of, in club for educational purposes, 64fa INTOXICATION, 112 See Testamentary Capacity. not presumed to continue, 384 , , , ^ ■ j • ■u^^ -jof; evidence of intoxication of ancestors of testator, inadmissible, 395 admissible as showing undue influence, 428 INTRODUCTORY CLAUSE as creating charge, 764 as rebutting presumption of satisfaction, /9/ INVALID CONVEYANCE effect as revocation, 278 1126 INDEX. (References are to sections.) INVALID WILL. No rights accrue under, 158 INVENTORY. Whether made part of will, 163, 166 INVESTMENT. Power of trustee as to, not defeated by alienation by beneficiary, 622 ISSUE (in contest). Whether general or special, 329 "ISSUE" meaning lineal descendants, 526 alternative meaning, children, 526 does not include adopted children, 526 and "descendants" synonymous, 527 calls for per capita distribution, 553 gift to, wlien requiring per stirpes division, 555 to A, and issue cre:ites estate-tail, 564 failure of definite, what is, 591 indefinite, what is, 591 "dying without," meaning of in gift of personalty, 591 dying without, gift of personalty, 592 gift of realty, 593 fee-tail at common law, 593 dying without, modern rule, 594 "dying without," definite failure, at what time failure must exist, 594 meaning of in statute against perpetuities, 433 condition as to birth of, 677 ISSUE. Male. See Issue. ISSUE. Death without. See Issue, Death, JEALOUSY not insane delusion if founded on evidence, 105 JEWELRY. Whether "furniture," 492 not "household goods," 493 JOINT INTEREST can not be devised, 140 distinguished from others, 379 whether created in equity or not, 622 JOINT TENANCY favored at common law, 589 abolished at modern law, 590 JOINT TENANTS. Counted as one life in determining perpetuities, G37 JOINT WILLS. What wills are not joint, 65 what wills are joint, 66 validity of joint wills, 67 admissibility to probate, 68 revocability, 69 JOURNAL ENTRY. Where issue made by, 329 JOURNEY\ Will in contemplation of, 62, 63 "JUDGE OF PROBATE," 474 JUDGMENT (in contest). Form of, 335 open to direct attack, 337 appeal from judgment, 338 error to judgment, 338 collateral attack not allowed, 339, 340 except where judgment is only prima facie, 340 upon whom order of probate is binding, 339 judgment is conclusive as to mental capacity of testator, 341 and absence of undue inflvience, 341 INDEX. 1^27 (References are to sections.) JUDGMENT (in contest ) —Continued, and genuineness of will, 341 and due execution, 341 ^ except in certain jurisdictions, 341 conclusive as to domicile of testator, 341 and notice, 341 but not as to construction, 341 or validity of specific bequests, 341 or capacity of devisee, 341 or translation of will from foreign language, 341 ISS^^gn^^nriA contest can bind part of the parties in interest, whether iud"-nient refusing probate is conclusive 343 lieu ol on share of life tenant is divested by sale under power, 696 JUDGMENT CREDITOR of heir, when may contest will, 325 JUDGMENT DEBT, whether primarily payable out of realty, 765 JUDICIAL NOTICE of foreign law not taken 41 except that existence of common law. is noticed, 41 JUDICIAL SALE does not eflfect conversion, 704 JURISDICTION. Judgment of court without, is a nullity, 341 and open to collateral attack, 341 ^ , <. qS'ec Void Legacies aad Devises. LAPSED LEGACY. See Lapse. LAPSED SPECIFIC DEVISE. See Lapse. LAST CLAUSE given effect in repugnancy, 503 LAST ILLNESS. What is, 234 LAST WILL does not revoke prior consistent will, 269 LATENT AMBIGUITIES, 823 See Ambiguities. LATER CLAUSE of two residuary clauses does not prevail, 510 LAW. Relation of law of wills to other titles, 1 no revocation by mistake of, 259 contest not action at, 323 witness can not give opinion involving domestic law, 392 knowledge of, presumed, 465 what is reading law, 537 LAW, ALTERATION IN, 21, 22 See Legislative Control. LAW OF FOREIGN COUNTRY. See Law Governing Will LAW GOVERNING WILL, 27 In general — Devises of realty — form and execution, 28 construction, 29 statutory rule, 30 Personalty — form and execution, 31 change of domicile, 32 Distinction between realty and personalty, 33 Special cases — where sale of realty necessary, 33 in conversion, 34 trusts of realty, 35 trusts of personalty, 35 capacity of beneficiary, 36 lapse, 37 election, 38 powers, 39 contracts to make will, 40 dower, 7 1 3 Presumption in absence of evidence as to law, 41 INDEX. 1129 (References are to sections.) "LAWFUL BEGOTTEN HEIRS" equivalent to heirs of the body, 518 LAWFUL HEIRS. See Heirs. LEAD PENCIL. Will may be written in, 159 cancellation by, 249 LEASE, renewal of, no ademption, 781 LEASEHOLDS. Whether realty or personalty, 33 subject to Rule in Shelley's Case, 564 LEAVING CHILDREN. Gift over on death without, 676 LEAVING ISSUE, 591-594 See Issue. LEFT. Gift of what is, implies power of sale, 689 LEGACY. Definition, 2 I — In general — acceptance of, bars contest, 326 use of term, 474 included under "debts and expenses," 507 primarily payable out of personalty, 747 II— Charged may be charged on realty, 748 how charge effected, 749-759 express charge, 749 implied charge, 750 deficiency of personalty as charge, 750 direction for support creating charge, 751 direction for payment of money as charge, 752 gift at valuation, 753 liability of devisee for legacy charged. 754 blending realty and personalty in residuary clause, 755, 757 exoneration of personalty, 756 charge of, legacy vipon realty specifically devised, 758 charge of legacy upon personalty specifically bequeathed, 759 enforcement of lien, 760 enforcement of personal liability of devisee, 761 III — Classes — general, specific and demonstrative distinguished, 767-770 when satisfaction of debt, 795, 797 when not satisfaction of debt, 796 whether substitutional or cumulative, 798-800 incidents of substitutional and cumulative legacies, 800 IV — Payment — how payable, 801 when payable if will fixes time. 802 acceleration by determination of particular estate, 802 acceleration by death or bankruptcy of beneficiary, 802 postponement of payment beyond majority. 802 wlien payable if will does not fix time, 803 except annuities, 803 and gifts to infant children, 803 V — Interst on legacies — when provided for by will, 804 when not provided for by will, 804 on legacies specifically charged, 804 effect of delay on account of contest, 804 See also Ab.^tement, Ademption, Advancement, Contribu- tion. 1130 INDEX. (References are to sections.) LEGACIES FOR VALUE. Examples, 776 order of abatement, 776 of legacies given under a power, 778 of devises, 777 LEGAL ESTATE IN TRUSTS. See Trusts. LEGAL REPRESENTATIVES used of lineal descendants, 533 implies representation in case of decease, 552 LEGATEE. Definition, 2 imder prior will may contest, 325 included in "heirs," 516 includes corporation, 535 including executor, 535 can not collect debts due estate of decedent, 801 declarations of. See Declarations. LEGISLATION. Gift contingent on future, violates rule against perpetu- ities, 626 gift to cause change in, valid, 653 LEGISLATIVE CONTROL over testamentary power, 21-26 before testator's death, 21 after testator's death, 23, 312 See Testamentary Power. LEGITIMACY. Mistake as to, 120 LEGITIMATION. Effect of. on term "children," 522, 525 LETTERS OF TESTATOR admissible in undue influence, 423 LEX DOMICILI controls gifts of personalty, 31 LEX LOCI controls gifts of realty, 28-30 LIBRARIES are charities, 646 LICENSE of court when necessary to power of sale, 091 LIEN. Contingent interest not subject to, 664 of purchase money to be paid by devisee, 678 of judgment against life tenant divested by sale under power' 696 of charged legacy, enforcement of, 760 payable out of personalty if debt of testator, 765, 766 on realty paid out of personalty, 791 LIFE ESTATE can not be devised by life tenant, 140 cut down from fee, 474 created by gift of income for life, 491 at common law, created by indefinite devise, 560, 570 at modern statutes, 562-574 not created unless intent clear, 562 not presumed to be intended, 562 when fee-tail at common law is life estate in first taker and fee- simple in second taker, 569 created by express words, 570 words expressly creating, 570 created by gift "during life," 570 created by gift "for the term of his life," 570 direction to support another does not cut life estate down to estate 'pur auter vie, 570 pur auter vie, 570 estate for widowhood, 571, 573 created by gifts over, 572, 574 created by direction to support, 573 created by gift over on death of person to be supported, 573 misdescribed as fee-simple, 574 not created by recommendation to beneficiary as to disposition of property, 574 INDEX. 1131 (References are to sections.) LIFE ESTATE— Continued. not enlarged fee by limited power of sale 5/ fa whether addition of general power of sale to creates fee, 5/6 enlarged to fee by general power of disposition, 5^7 creation of, leaves remainder, 579 created by trust, 618 ... ...a gift over on determination, not perpetuity, b4U gift of, compared with restraint on alienation, 684 when determined by sale under power of, 696 premature ending of, as acceleration of payment of legacy, 802 for gifts of personalty. -S'ce Life Interest. LIFE IN BEING. Limit upon postponement of vesting beyond, 628 number of, unlimited, 628 gift vesting at end of, not perpetuity, 37, 640 LIFE INSURANCE is not appointed by general clause in will, 500 passes under general gift, if devisable. 500 does not pass by gift of community property, 580 does not pass when not devisable, 500_ election between, and gift under will, 714 LIFE INSURANCE POLICY. Evidence in gift of, 819 LIFE INTEREST (in personalty). How created, 595 when held to pass absolute interest, 595 in personalty is possible, 596 can not be created in consumables, 596 in personalty, how created, 597 ;« ,^ovcr.Ticiltv pvoated bv aift over, 597 "roSr S^emaindennan, whether bond required from life tenant. 598 LIFE TENANT. Restriction on powers. 576 power of, to bind remainderman, 586 of personalty may be prevented from waste 596 of personaltv, whether required to give bond 598 entitled to inaintenance can not have corpus, 605 apportionment of income on death of, 606 gift over on death not perpetuity, 631 death of; before testator does not .affect rema_inder, 662 creditors of, have no lien on remainder, 69* LIMITATION over on attempted sale, when held valid, 684 LIMITATION, ESTATE ON, compared in effect with estate on condition, 681 , ^.1 LIMITATION, WORDS OF, necessary in fee at common law, 56 i what are words of, 561 "heirs," 561 children, 561 lineage, 561 ^ . j • ^ LIMITATIONS. When statute of, begins to run on contract to devise, 83 on time allowed for offering will for probate, 316 period of, for contesting will, 321 LINEAGE word of limitation, 561 LINEN, household, included in furniture, 492 LITIGATION Condition in restraint of, 683 what is, in construing condition ^against, 683 taking part in, when election, 722 LIVE STOCK. Whether passing under gift of "stock," 497 LIVERY OF SEIZIN, theory of, destroyed will at common law, 10 1132 INDEX. (References are to sections.) "LIVING." Gift to those. Bee Survivor. LIVING CHILDREN. /See Children, Class. "LOAN" does not cut freehold down^ 570 LOCAL LAW. See Law Go\'erxing Will. LOCATION. Property described by, 494 LOCO PARENTIS (IN). Status of, important in ademption, 783 LOSS of sight and hearing, 117 8ee Blixd, Deaf, Dumb, Testamentary Capacity. of later will, efl'ect on earlier, 270 of codicil does not invalidate will, 314 LOST AND SPOLIATED WILLS. Burden of proof, 434 LOST WILL. Probate of, 347-354 /See Probate. presumption as to. /S'ec Presumptions. "LOT." How used, 484 number of controlled by description as of lot of residence, 484 evidence in devise of, 819 LOUISIANA LAW. Nuncupative will at, 241, 242 See Nuncupative Will. LUCID INTERVAL, 109 LUNACY effect on testamentary capacity, 103, 108 LUNATIC. When can not make will, 103-108 M MAILING ^VTitten election to probate judge not filing unless received, 730 MAINTENANCE. Gift for, not advancement, 788 jMAJORITY. Postponement of vesting till, 663 MAN. Marriage of, did not revoke will, 281 nor birth of child to, 282 but both marriage and birth of child to, did revoke, 283 effect of modern statutes, 281, 283 MANAGE]MENT. Direction for, not trust, 46 MANAGER. Gift to business manager not caused by undue influence, 416 MANDATORY P0\^T:R creates equitable interest, 694 of sale effects conversion, 700, 701 MANDATORY WORDS. Cut fee ^o\\n to life estate, 574 MANIA,103-109 See Testamentary Capacity. MANSION. Rights of wife in. See Homestead. MAP. Annexed to will, not incorporation, but does not vitiate will, 186 MARINER. Will of, 233 See Sailor. MARK. Signature of testator by, 173 name of testator need not be written by, 173 effect of adding name of testator to, 179 signature of witness by, 219 MARRIAGE is part performance of contract to devise, 75 whether effecting revocation. 281. 28.3, 284 as revocation. 454 conditions in restraint of. 681 of executrix terminates power of sale, when. 692 INDEX. 1133 (References are to sections.) MARRIAGE SETTLEMENT. Necessity of election between, and provision in will, 717 MARITAL RIGHTS at common law., 89 MARRIED WOMAN. Testamentary capacity of, 89, 93 See Testamentary Capacity. separate estate of, (J24: when can not act as executrix, 692 MARRIED WOMEN'S ACTS aflfecting testamentary capacity, 93 MARSHALING. Order of, in absence of direction, 7G2, 7(55 charge of debts on realty, 702, 7U4 exoneration of personalty, 703 See Debts. MASSES. Gift for, invalid in England, 650 valid in United States, 650 unless because no beneficiary, 650 MATHEWS V. WARNER, instance of fraud, 232, 244 MEANING OF WORDS. See Words, Definitions. MEDICAL ATTENDANT. Gift to, 418 MEDICINE. Gift to promote study of, is charity, 645 MEDIUM. Gift to. See Spiritualistic Adviser. gift by advice of. See Undue Influence. MEMBER of religious society, competency of as attesting witness, 194 MEMORANDUM. Incorporation in will, 163 165 of will, admissibility to show contents of lost will, 440 MEMORY. Degree of requisite to testamentary capacity, 98 of testator admissible on question of capacity, 397 effect of slight failure, 102 MEMENTO. Gift of, not provision, 293 gift of, does not make recipient a legatee, 535 MENACES. See Threats. , . n .oa MENTAL CONDITION of testator admissible in undue influence, 4^» See Undue Influence, Evidence. evidence of generally, 382-403 MERGER of charge of legacy with realty charged, 758 METES AND BOUNDS control acreage, 485 MICROSCOPE. Use of, to read illegible writing, 251 MILITARY SERVICE. Gift to aid, is valid, 653 MINISTER. Gift to, 419 MINISTRY. What is preparing for the, 537 MINORITY. Gift over on death during, 676 accumulation for, 638 MINORS. When gifts for support of minors, when due. 803 MISDESCRIPTION of beneficiary, natural person, 538 corporation, 539 ^ of amount of note, not fatal, /97 See Mtsnomer. of realty. See Mistake, Lot. MISNOMER of beneficiary, natural person, 538, 819 corporation, 539, 819 ., ,- , kqo where two corporations have identical name, oS3 MISREPRESENTATION as ground for revocation of written election, 731 1134 INDEX. (References are to sections.) MISSING WILL. Presumption in. See Peesumption. MISSIONARY WORK. Gift for, is charity, 649 MISTAKE as to nature of instrument, 47 of fact not insane delusion, 105, 106 classes, 118 effect of mistake in execution, 119 effect of mistake in inducement, 120 statutory rule, 121 if fact, prevents revocation by act on will, 258 or by later will if mistake appears on face of will, 277 of law prevents revocation by act on will, 259 or by later will if mistake appears in will, 277 in name of party in giving notice, 319 in transcribing will in probate, corrected in contest, 323 in language may be corrected from context, 473 in lot number, 484, 487 in description of realty, 487 not fatal if sufficient description left after rejecting error, 487 minority rule, 487 in name of corporation in which stock is given, 497 in number of shares given, 497 in description of realty, 819 MISTAKEN RECITALS. See Mistake, Revocation. MISTRESS. Gift to, where void, 24 will in favor of, to what extent undue influence is presumed, 411 MISUSE of technical words not fatal, 2 of words "will," "deed," etc., 44 MIXED FUND. Gift of, may be separated if void as to realty, 25 creates charge, 755 MONEY not passed by gift of furniture, 492 includes deposit in bank subject to check, 496 not deposit, not subject to check, 496 does not include realty or chattels unless by context, 496 does not include securities unless by context, 496 whether receipt of, is election, 724 whether gift of, specific, general or demon-strative, 767, 768, 769, 770 evidence of amount of, 819 MODIFICATION OF WILL. Courts will not make under guise of con struction, 461, 466 MONOMANIA. Defined, 108 See Testamentary Capacity. MONUMENT. Gift for, over grave, is valid, 651 MORPHINE. L^se of, effect on testamentary capacity, 112 MORTGAGE on realty devised, whether revocation, 278, 279 does not pass by general devise of realty, 483 passes by devise of specific realty, 483 power of, not included in power of sale, 690 payable out of personalty if debt of testator, 765, 766 MORTGAGE DEBT of testator payable out of personalty, 765 See Mortgage. MORTMAIN. Statutes of, 25 MOTIVE. Words showing motive distinguished from condition, 64 whether words showing, create trust, 613 distinguished from condition, 673 effect of assigning 799 See Undue Inflttence, Evidence. INDEX. 1135 (References are to sections.) MOULDING language of will, 473, 676 MOVABLES. Law controlling gifts of, 31 MUNICIPAL CaRPORATION may be devisee, 154 may be trustee, 154 inhabitant of, competent witness to will devising to corporation, 194 charitable gift to, 644 MURDER. Whether legatee can take if he murders testator, 687 MUSEUM. Gift for, whether charity, 645 MUTE. Will of. See Deaf, Dumb, Testamentary Capacity. MUTILATION. Revocation by, 250 MUTUAL WILLS. What wills are mutual, 66 validity of mutual wills, 67 whether admissible to probate, 68 revocability, 69 MYSTIC TESTAMENTS. Definition, 243 formalities, 243 N NAME. Misspelling of name of testator, 172 what is good signature, 172 whether name of person signing will for testator must appear, 1(8 of testator added to mark effect of, 179 where wrong name, 179 prevails over description of beneficiary, 538 condition as to change, 688 what is change of, 688 NAMING members of class, effect of, 543 NATIONAL DEBT. Validity of gift to reduce, 154 NATURALIZATION. Effect of, on capacity of a lien to take realty by will, 150 NATURAL-BORN CHILDREN. See Illegitimates. NATURE OF WILL. Important in undue influence, 426 NAVAL SERVICE. Will of one in, 233 NEAREST BLOOD RELATIVES indicated by "next of kin," 521 NEAREST RELATIONS. Who are. 521 See Relations, Relatives. NECESSARY IMPLICATION. See Implication. NEEDY RELATIVES. Gift to, whether charity, 647 NEGATIVE WORDS of disinheritance not will, 46 do not disinherit, 467 minority rule as to, 467 NEGROES. Gifts to protect, held charity, 653 NEPHEW. Prima facie excludes grandnephew, 531 unless by context, 531 does not include nephew by marriage, 531 used in describing class. 541 NEW YORK RULE as to presumption of alteration. 432 NEXT OF KIN. When "heir" is equivalent to, 515 definition, 521 gift to, when class fixed, 547 NICKNAME may be shown to identify beneficiary. 538 1136 INDEX. (References are to sections.) NIECE excludes grandniece, 531 unless by context, 531 NONAGE, 87 (S'ee Testamentary Capacity. NOX-CHEISTIAN ORGANIZATION. Gift to, if religious, is charity, 649 NON-EXPERT EVIDENCE, 490 /S'ee Opinion, Evidence. NON-RESIDENT ALIENS. Discriminations against, 151 NON-REVOCATION OF WILL may rebut presumption of undue in- fluence, 414, 428 NON-TESTAJMENTARY WRITINGS. What are, 45, 48 NOSCITUR A SOCIIS. See Context. NOT PREVIOUSLY disposed of, 503 NOTARY duty of, in nuncupative will in Louisiana, 241, 242 NOTE. When promissory note held testamentary, 54, 55 gift of, 498 payment or surrender of, causes ademption, 780 renewal of, no ademption, 781 NOTICE necessary for probate, 319 effect of omitting, in probate or contest, 337, 339 judgment in contest conclusive as to, 341 of application to admit lost will to probate, 351 of admission of foreign will to probate, 357 in construction suit, 811 "NOW." When use of word makes will speak from death of testator, 546 NUMBER. Effect of, to extend "relatives" to illegitimates, 529 NUMBER OF WITNESSES necessary to will, 190 NUNCUPATIVE WILL. I — In general — not affected by statute on written wills, 19G common law" use of term distinguished from Roman law, 232 history of, at common law, 232 could not pass realty, 232, 240 passed personalty at ecclesiastical law, 232 effect of statute of frauds. 232 II — Who can make nuncupative will. 233-235 testators of favored classes. 233 testators leaving small estates, 233 testators in extremis, 234 what is last illness, 234 where nuncupative will can be made, 235 III — Distinctive inherent elements — animus testandi must be present, 236 animus nuncupandi must be present, 236 TV — Extrinsic formalities — rogatio testium necessary, 237 form of, 237 number of witnesses, 238 competency of witnesses, 238 reduction to writing. 239 V — What can pass by nuncupative will — realty can not pass. 232. 240 personalty can pass. 240 debts may be charged on realty by, 240 can not revoke written will, 264 INDEX. 1137 (References are to sections.) NUNCUPATIVE WILI^Continued. VI — Evidence — burden of proof in, 447 must establish rogatio testium, 447 NUNCUPATIVE WILL AT LOUISIANA LAW, classes, 241 definition, 241 formalities for testament by public act, 241 for testament by by private act, 242 NURSE, gift to. See Undue Influence, PBESUMrxioN. O OBLITERATION, when held cancellation, 251 revocation by, 251 OBSERVATORY is educational charity, 64G "OBSOLETE," writing word, is not cancellation, 249 OCCUPATION, description of realty by, 487 condition as to occupation of realty devised, G84 "OFFSPRING," definition, 526 synonymous with issue, 52G OIL, whether income or principal, 602 OIL LEASE, 588 "OLD HOMESTEAD," 488 OLD PERSONS, wills of, 102 See Testamentary Capacity. OMISSION— I— Of children— of child by mistake did not invalidate will at common law, 287 effect of modern^ statutes. 288-296 where parent' is childless when will is made, 287 where parent is not childless when will is made, 288 of child by mistake, 288 construction of statute, 289, 293 "having no child," 289 "subsequent birth" of child, 290 omission of child from will where no provision given, 291-296 how intentional omission is shown, 292, 293 provision for child, what is, 293 omitted children need not contest, 295 efl'eet on remaining provisions of will, 296 II Miscellaneous of parties to contest, 324 of reference to debt, is not release, 787 ON DEATH, gift over, 676 ONEROUS GIFT, acceptance of, creates personal liability, 751, 754, 761 ONUS PROBANDI. See Burden of Proof. OPINION of competent witness admissible on handwriting, 378 but not if not based on facts, 379 of beneficiary as to what sort of will testator wished inadmissible, 424 OPINION EVIDENCE as to handwriting, 378 as to sanity, 388-393 what is mere opinion, 392 what is not mere opinion, 391 can not extend to questions of domestic law, 392 1138 INDEX. (References are to sections.) OPINION EVIDENCE— Continued. at what time opinion must exist, 393 evidence must refer to condition of testator at execution, 393 of undue influence, admissible, 430 as to justice of will inadmissible, 430 as to appearance of others than testator, inadmissible, 430 OPPORTUNITY to exert undue influence not conclusive that it was exerted, 12/, 409-420 OPTION. When valuation of realty devised gives devisee an option to purchase, 753 "OR" construed "and," 473 "OR EACH OF THEIR HEIRS," meaning, 551 ORAL INSTRUCTIONS, reference to, in will, 168 ORAL WILLS, validity, 157, 158, 232-239 ORCHIDS do not pass under gift of furniture, 495 ORDERS confused with wills, 56 ORIGINAL WILL, when production dispensed with, 368 admissible on contest, 368 ORPHANS, gift to home for, is charity. 648 ORNAMENT, what is article of, 495 whether furniture, 492 "OTHER ARTICLES OF HOUSEHOLD USE," 495 "OTHER CHILDREN." 523 "OTHER CREDITS," 498 "OUR CHILDREN" includes children by first marriage, 523 OUTLAWRY, effect on testamentary capacity, 86 "OWN AT DEATH," 475 OWNERSHIP of property affecting construction, 504 property disposed of, prima facie testator's .only, 605 of land, gift to advance reform in, 653 "PAR OR MARKET VALUE," 497 PARALYSIS, effect of, on testamentary capacity, 116 See Testamentary Capacity. PARALYTIC, will of, 116 PARAMOUR, gift to, where void, 24 will in favor of, to what extent undue influence is presumed, 411 PARCELS of realty, description of, 482. 484-487 use of popular name to indicate, 488 PARDON restores competency to convict, 360 PARENT. Undue influence not presumed to exist between parent and child, 409 use of term, limits "issue" to children, 520 unless by context, 526 PARK, gift for public, is charity, 652 PAROL, will can not be party in, 168, 816-820 republication by, at common law, 304 forbidden at modern statute, 305 PAROL CONTRACT not revocation, 244 does not effect conversion, 704 INDEX. 1139 (References are to sections.) PAROL EVIDENCE, of intention to revoke is inadmissible, 2GG of revivor of early will in case of revocation of later will, 273, 274 454 . declarations of testator in undue influence, 423 as to date of alterations, 433 as to contents of spoliated will, 440 See ExTai>\src Evidence. PAROL PROMISE, to pay money in consideration of devise, 72 PAROL TRUSTS. See Trusts. PARSONAGE, gift for, is charity, 649 "PART." Gift of "part" of realty, when certain, 485 PART of will avoided for undue influence, 131 PART PERFORMANCE of contract to devise, 75 PARTIAL CANCELLATION, when eflfecting revocation of entire will, 254 PARTIAL CONTINGENCY preferred to one afl^ecting entire will, 64 PARTIAL ELECTION not permitted, 710 PARTIAL INTESTACY not presumed, 466 avaoided in construction, 475 PARTIAL INVALIDITY, whether invalidating entire will, 630 PARTIAL PROBATE, when permitted, 314 PARTIAL REVOCATION by canceling, etc., validity of, 254 PARTICULAR ESTATE, creation of, did not revoke will, 278 See Life Estate. PARTICULAR INTENT yields to general, 462, 463, 616 when controlling general, 690 PARTICULAR RESIDUARY CLAUSE, what passes, 466 PARTICULAR AND GENERAL RESIDUARY CLAUSE, construction, 467, 505 when particular residuary clause preferred in construction, 467 PARTIES to action on contract to devise, 82 in contest. 325. 326, 327 to probate of lost will, 350 to action to probate foreign will, 357 to contest, when incompetent as witness, 361 bound by decree in construction, 806 in suits for construction, 808 PARTITION does not revoke will, 278 PARTNER, will in favor of. See Business Relations. PARTNERSHIP, eflect of, incorporation on specific gift, 497 PARTNERSHIP DEBT not released by gift of individual indebtedness, 501 PASSIVE TRUSTS, 615 See Trusts. PASTING paper over part of will, 254 PATENT AMBIGUITY, 823 See Ambiguities. PAUPERS, gifts for, when charities, 647 PAYMENT is consideration, for contract to devise, 72 by devisee for realty devised, enforceable by lien in equity, 678 if legacy, when direction for, is charge, 752 of debts, direction for, rebuts presumption of satisfaction, 797 of legacies, ■ 801 See Legacies. 1140 INDEX. (References are to sections.) PECUNIARY LEGACIES. Hee Legacies. PENCIL, will written with, 159 cancellation with, 249 PER CAPITA AND PER STIRPES, DISTRIBUTION— I — Per capita gifts — distinguished from gift per stirpes, 525 where equal degree, 553 required by gift "equally," 554 required by gift "between," 554 required by gift "shall share alike," 554 extrinsic evidence inadmissible to change to per stirpes, 820 11— PER STIRPES GIFTS— gift to class, 549 distinguished from per capita gift, 552 words implying representation, 552 gift to issue, heirs or descendants, requires, 553 gift to "heirs," "children and heirs," 556 III Ambiguous gifts requiring especial consideration — to "heirs 'share and share alike,' " 557 "equally to heirs," 557 gift to children of two or more, 558 gift "between" heirs of two or more, 558 "between" relatives of two or more, 558 gift as in intestacy, 559 "equal parts" among those entitled under statute of descents and distributions, 559 PER STIRPES. -See Per Capita and Per Stirpes. PERCEPTION essential to presence, 210 PERISHABLE PROPERTY. Life estate in, not possible, 595 PERFORMANCE of conditions. Sec Conditions. PERIOD. What must intervene between execution of will and death of testator, in case of gift to corporation, 25 PERPETUITIES (RULE AGAINST), intention to violate rule against, not presumed, 465 gifts in violation of, passes under residuary clause, 507, 746 rule against, when violated by gift to wife, 511 class must not be fixed at so remote a time as to violate rule against, 546 rule against, remainder must not violate, 583 trusts in violation of rule against, void, 621 construction avoiding, preferred, 622, 658 triple meaning of perpetuity, 625 perpetuity in technical sense, 625 original rule, definition, 6:^6 applies to time of vesting, 626 depends on facts at death of testator, 626 power, refers to date of creation of, 626 governmental action, gift depending on contingent, violates, 626, 636 history of rule, 627 not important at early common law, 627 statement of rule, 628 length of time for which vesting may be postponed, 628 does not apply to vested interests, 628, 631 applies to contingent interests, 620 applies to equitable interests, 628 effect of gift in violation of rule, 629 applies to gift which may not vest within time, 629 INDEX. 1141 (References are to sections.) PERPETUITIES (RULE AGAINST)— Continued invalidity of alternative provision does not invalidate will, b30 partial invalidity may invalidate entire gift, 630 successive gifts, 030 gifts not violating rule, 631 gift over on failure of issue, 631 gifts violating rule, 632 gift vesting at end of fixed term, 632 statutory moditication, 633 rule against restraint on alienation extended to prevent perpetu- ities, 635 wl^at classes of property included, 635 what gifts violate rule, 635, 636 rule violated bv preventing alienation for fixed term, 63b. but may be valid for part of term, 636 what gifts do not violate rule, 637 gift for one life, 637 gift for two lives, 637 joint gift, 637 separate trusts, 637 c ■ ^ cm condition as to birth of issue in violation of, void, 67/ devolution of gift in violation of, 746 gift in violation of, how treated, 763 accumulations valid unless perpetuity, 638 Thelluson's Will, 638 statutory rule, 038 for charity, 642 . « charity subject to rule against perpetuities as to vesting, 640 not subject as to restraint on alienation, 641 accumulations for, 642 PERSONAL CHARGE, what constitutes a, 754 may show intent to pass fee, 561 to "pass life-estate, 573 PERSONAL LIABILITY of devisee, how enforced, 761 PERSONAL PRIVILEGES not descendible or assignable, 688 election is, 719 PERSONAL PROPERTY, passes by "estate," 475 passes bv "property," 476 gift of, on farm includes growing crops, 494 PERSONAL REPRESENTATIVES. Hee Representatives. "PERSONAL USE AND ORNAMENT" does not pass yacht, 495 PERSONALTY distinguished from realty, 33 ,,,,,, acquired after execution of will may be bequeathed, 141 "furniture," 492 household goods, 493 gift of, by location, 494 described by use, 495 "money," 496 stocksand bonds, 497 gift of notes and debts, 498 meaning of "heir" in gift of, 515 944 crift oi%rima facie, passes absolute interest, 59.j life interest on. how created, clear language necessary, 597 life interest, created by gift over, 597 converted into realty, 700 legacy primarily payable out of, 747 ^ deficiency of, when creating a charge, 750, 755, ( 5» exoneration of, 7.56 1142 INDEX. (References ai-e to sections.) FEllSGNALTY— Continued. when charged with legacy, though si^ecifically bequeathed, 759 charged with debts, 759 exonerated from debts, 7(53 first liable for testator's debts, even if liens on realty, 705, 7(j6 for deficiency in, ISee Abatement. PERSUASION, when not undue influence, 127 PETITION for probate of will, 318 in contest, 328 for admission of lost will to probate, 352 to admit foreign will to probate, 357 PHILANTHROPIC held not charitable, 654 PHOTOGRAPH of testator not admissible on issue of capacity, 403 PHYSICAL CONDITION OF TESTATOR admissible in undue influ- ence, 428 PHYSICIAN can not testify to confidential communications, 364 unless he is called as subscribing witness, 365 gift to. See Undue Influence, Presumption. PICTURES, whether furniture or not, 492 PIECES. Will written on several pieces, valid, 101, 378 PIOUS PURPOSES, gifts for, whether valid charities, 649, 650 PLACE of making nuncupative will, 235 PLAT, reference to, controls, 484 PLATE, whether furniture, 492 PLAYGROUND, gift for public, charity, 652 PLEADINGS in construction suit, 810 in contest, 328 PLURAL number as affecting construction to include illegitimates, 529 POLICY OF INSURANCE. See Insurance. POLYTECHNIC SCHOOL, gift to, is charity, 645 POOR, aid of, is charity, 647 POOR RELATIONS, whether gift to, is charity, 647 POPULAR NAjME of realty, 488 POPULAR MEANING of words, See Words, Definitions. "PORTION AFTER MY FATHER'S DEATH," 479 PORTRAITS, whether furniture, 492 "POSSESS" in gift of property, whether passing after-acquired realty, 489 POSSESSION, will can not pass right of immedjate, 49 whether surrender of, is part performance, 75 postponement of, does not defer vesting, 659 POSSIBILITY (OF ISSUE), when ceasing, 515, 629, 677, 802 gift over after. See Issue. POSSIBILITY (OF REVERTER), whether devisable, 146 POSSIBILITY^, whether devisable, 146 POSSIBILITY ON POSSIBILITY. Early form of rule against perpetu- ities, 627 POSTHUMOUS. See Child, Children. POSTPONEMENT of distribution sets time for fixing class, 548 except where for convenience of settling estate, 548 of possession does not defer vesting, 659 INDEX. ^^"^^ (References are to sections.) POSTERIOR CLAUSE, when prevailing, 503 POVERTY of legatee, whether admissible, 386, 427 gift to relieve, 047 POWERS, law controlling as to, 39 capacity of married woman to execute, Jl whether avoided by invalidity of dispositive provisions, 296 devolution of property pending exercise of, 400 implied from recital, 468 does not reduce tee to life estate, 5/5 . , ^7 = when important as showing intention to create fee, 575 gift'to^iemaiifdermen where fraudulent conveyance by life tenant. under power of sale, 5/6 f„„ ctr limited, held not to enlarge life estate to fee, 570 must be exercised in good faith, 5' 6 whether general power enlarges life-estate to fee, 5(0 whether passing fee or life estate, 5/0 Tdifferent capacity, does not enlarge life-estat_e to fee, 576 general, held to enlarge life estate to fee, 5// of disposition of personalty — . general, when creating absolute interest in personalty, 595 general, creates absolute interest, 596 limited, does not, 596 . , , ^ . ^q^ for support, does not give right to waste, 596 obviates bond, 598 ..^ r • ^„ koq power, 626 ... am does not make devise contingent, 600 does not create contingent legacy, 609 definition, 689 _ how a power of sale is created 689 695 • how a power to devise is created, 09U sale, 691 conditional power of sale, 691 power of sale for illegal purpose, 691 power of sale does not include power to mortgage 691 method of exercising power indicated by testator must be power'of III does not include power to exchange, 691 by whom power is exercisable, 692 by survivors, 692 by successors, 692 unless discretionary power, 09Z consent of specified persons, when necessary, 693 failure to exercise po^yer, 694 where discretionary, 694 where mandatory, 694 conferred upon life tenant, 695 how exercised by life tenant, 6d6 by creditors of donee of power, 0J7 reference to power, whether necessary. 698 if mandatory, causes conversion, iW even if restricted. 701 not, if discretionary, 702 when charging legacy, 750 lecracies given under power, abatement ot, /(» extrSnsic^vidence to' show intention to execute. 820 1144 INDEX. (References are to sections.) POWER OF APPOINTMENT, failure to exercise, does not defeat equi- table remainder, 579 POWER OF ATTORNEY, when testamentary, 57 POWER TO DEVISE, passes fee, when, 576 POWER OF DISPOSAL. See Power. POWER OF SALK See Power. PRAYERS (for the dead), gift for, invalid in England as superstitious, 650 valid in United States, 650 except because of absence of living beneficiary, 650 PREACHING, gift for, is charity, 449 PRECATORY WORDS, strictly, not will, 46 when discretionary, not testamentary, 59 when mandatory, testamentary, 59 PRECATORY TRUST, discretionary advice aoes'not create, 611 nor recommendation to make certain disposition by will, 611 imperative words create, even if mild in form, 612 may be created by "wish," "desire" or "recommend," 612 motive, effect of words showing, 613 PRECEDENT CONDITIONS, 672 See Conditions. PRECEDENTS ia construction. See Authorities. PREFERENCE of testator for certain children does not invalidate will, 23 is not undue influence, 127, 132 PREJUDICE causing will is not undue influence, 132 PREMATURE TERMINATION of particular estate, effect on payment of legacy, 802 "PREMISES," what passes by gift of, 488 PREMIUM on bonds, how made up, 602 "PREPARING FOR THE MINISTRY," 537 PRESENCE. Will must be signed in presence of testator, 175 See Extrinsic Elements. what constitutes, 209-216 testator must sign in presence of witness, 222 of beneficiaries at execution does not create presumption of undue influence, 415 PRESENT TENSE, words of, as showing time of fixing class, 546 as passing after-acquired realty, 489 PRESENT DEBTS, release of, does not release subsequent debts, 501 PRESUMPTIONS, as to foreign law, in absence of evidence, 41 as to continuance of delirium, 113 of construction, against revocation by codicil, 269 of revivor of earlier will by revocation of later, 271, 273 of sanity, 383 of continuance of mental condition, 384 in undue influence, 408 will in custody of testator, alterations presumed to have been made after execution, 432 where will not in custody of testator, 4.32 as to alteration, New York Rule. 432 of date of alteration may be rebutted by certificate in attestation clause, 433 or by extrinsic evidence. 433 of revocation of missing will, 442 INDEX. 1145 (References are to sections.) PRESUMPTIONS— Continued. arising from destiuction, may be rebutted by declaration of testa- tor, 443 of revocation, if will missing, 449 from torn will, 449 iSec Undue Influence. PRETERMITTED CHILDREN, 287-296 PREVENTION (of lapse). See Lapse. PRICE. Devise at fixed price makes case for election, 717 gift at fixed price, v^hen charge, 753 PRIEST, gift to. See Undue Influence, Peesumption. PRIMA FACIE CASE necessary at Probate, 320 PRIMARY SENSE of words used if not modified by context, 471 PRIMOGENITURE increases practical importance of testamentary power, 5 PRINTED FORM. See Printing. PRINTING, will valid if in, 159 holographic will can not be partially in, 230 revocation clause in printed form, when ignored, 207 PRIORITY (in abatement), 776 See Legacies (for value). PRISONER, capacity to make will, 86 capacity to take gift, 155 PRIVATE ACT. Nuncupative will by, at Louisiana law, 242 PRIVATE CEMETERIES, 651 See Cemeteries. PRIVATE CHARITY, gift to, can not be perpetuity. 647, 651, 653 PRIVATE CORPORATIONS could not take by devise under Wills Act. 152 may take at modern law, 152 special statutory restrictions, 153 gift to, for charitable purposes, 645 PRIVILEGE. Release of communications to attorney or physician from bar of, 365 bars confidential communications if not waived, 304 PRIZE for promotion of study is charity, 045 PRO RATA, distribution of residuum. 509 PROBATE OF DOMESTIC WILLS, admissibility of joint will to, 08 whether statutes of procedure afl'ect competency of witnesses in Probate Courts, 191 whether statute applying to evidence generally applies to Probate courts, 197 of revoking instrument other than will not necessary, 205 evidence at, of spoliated will, 270 history of law. 312 wills not subject to probate, 312 except by statute, 312 testaments always subject to probate, 312 classes of probate, 312 whether probate is conclusive or not, 312, 313 definition of probate, 312 nature of probate in common form. 312 nature of probate in solemn form, 312 modern statutes aflfecting probate. 312 necessity of probate at modern law, 313 1146 INDEX. (References are to sections.) PROBATE OF DOMESTIC WILLS— Continued. necessary to give title to realty, 313, 805 what must be probated, 314 probate of codicil without will, 314 probate of will without codicil, 314 probate of separate wills, 314 court of probate powers, 315 jurisdiction of equity over probate, 315 efl'ect of delay in presenting will for probate, 316 who may propound will for probate, 317 beneficiary may propound, 317 executor may propound, 317 creditor of legatee may projiound, 317 procedure in probate, 318-320 petition, 318 notice, 319 Examination of witnesses, 320 prima facie case only, necessary, 320 transcript of evidence introduced at, may be admitted at contest, 3G7 of will afterwards lost establishes execution, 439 See Contest. PROBATE OF FOREIGN WILLS. Definition of foreign will, 355 law controlling. Sec Conflict of Law. nature of probate of foreign will, 356 court having jurdisdiction to admit foreign will to probate, 356 parties, 357 petition, 357 notice, 357 evidence, 357 effect of order admitting to probate, 357 registry of foreign will, 358 PROBATE OF LOST AND SPOLIATED WILLS. Definition of lost will, 347 of spoliated will, 347 admissibility of lost will to probate, 348 what court may admit lost will to probate, 349 parties to probate of lost will, 350 notice, 351 petition, 352 jury, 353 charge of court, 353 contest, 354 PROBATE COURT should determine allowance of attorney fees in con- test, 345 power of, to construe, 812 PROBATE JUDGE, competency of, as subscribing witness, 199 PROCEDURE. See Probate Contest. PROCEEDS, gift of, when creates power of sale, 689 PROCESS OF LAW^ what is taking property by, 685 PROCREATION, words of. See Fee-tail. PRODUCTION (of original will), required at contest, when, 368 PROFESSION, condition requiring study for, 537 PROFESSIONAL ADVICE, declarations of testator while asking, inad- missible, 364 unless made to subscribing witness, 366 PROHIBITION, what is support of cause of, 744 INDEX. 1147 (References are to sections.) PROMISE confused with will, 54, 55 to make will, not testamentary, 58 to make will, is good consideration for reciprocal promise, 72 PROMISSORY NOTE, v/hen testamentary, 54, 55 PRONOUNS, misuse of, does not defeat gift if intention clear, 473 PROOF of spoliated will, 270 PROPERTY, what, subject to testamentary power, 18, 19 will need not dispose of, 45 in general is now subject to disposition by will, 134 restrictions on testamentary power over property at common law, 9- 11, 18, 19 ownership of property disposed of by will must be in testator, 135-139 in general, 135 insurance policies, 136 not devisable where payable to others, 136 dower, interest of widow can not be devised without her con- sent, 137 curtesy, 137 distributive share of personalty, 137 homestead rights, 138 community property, 139 life interests, 140 joint interests, 140 after-acquired personalty may be bequeathed, 141 after-acquired realty not devisable under Wills Act, 142 equitable interest devisable, though legal title afterward ac- quired, 143 devisable by modern statute, 142 Classes of property disposed of by will — realty, in general, 143 where testator is disseised, 144 interest in futuro, 145 possibilities — not devisable, 146 except where coupled with interest, 146 rights of entry, 147 equitable interests, 148 creditors can not be prejudicially affected by devise, 149 testator presumed to devise only his own, 465, 605 what words pass entire, 475 passes realty and personalty, 476 passes fee-simple, 476 context may confine to personalty, 476 described by reference to its source, 480, 483 excepted from general bequest, 481 passes realty, 488 testator, prima facie, disposes only of his own, 504 excepted from residuary clause, 507 subject to substitutional gift over in case of death before testator is devisable if legatee survives, 676 when acceptance constitutes legacy, 723 of testator, extrinsic evidence of, admissible, 817 evidence of, to show intention of testator, S17 PROPERTY RIGHTS, questions of construction raised by, 456 PROTECTION of remainderman, 803 of annuitant, 803 1148 INDEX. (References are to sections.) PROVISION for child prevents revocation, 283 failure to make provision for children, 291-296 what is, 293 PROXY, signature of will by, 174 PUBLIC ACT. Nuncupative will at Louisiana law, 241 PUBLIC ADMINISTRATOR can not contest, 325 PUBLIC CORPORATION, gift to city, 154 gift to state, 154 gift to United States, 154 charitable gift to, as trustee, 644 PUBLIC EuVIPLOYEES not included under "servants/' 534 PUBLIC LIBRARIES, charities, 646 what is a public library, 646 PUBLIC PARKS, gift for, a charity, 652 PUBLIC POLICY, not opposed to gifts to cause change in law, 653 opposed to restraints on alienation, 634, 637, 684 and perpetuities, 625, 633 and conditions in restraint of marriage, 681 and as to religious belief, when, 682 PUBLIC SCHOOLS, gift for, is charity, 645 even if causing reduction in taxation, 645 PUBLICATION (of will), 225-228 See Extrinsic Elements. at Louisiana law, 242 PUBLICATION of religious books is charity, 649 PUNCTUATION may be corrected, 471 may be ignored, 471, 612 PUR AUTRE VIE, estate for, how created, 570 PURCHASE, what are words of, 561 heirs, as, word of, 561 option to devisee to purchase at price named, when charge, 753 those claiming by purchase not bound by decree against ancestor, 812 PURCHASE PRICE of realty sold by testator does not pass by devise, 482 unless by context, 482 PURCHASER (FOR VALUE). See Legacies (for Value.) "PURPORTED WILL" proper in description of will at probate, 333 PURPOSE of gift, effect as creating spendthrift trust, 685 QUAKER, condition requiring legatee to remain a, 681, 682 QUARREL, disinheritance caused by, is not product of undue influ- ence, 132 cause of, between testator and beneficiaries, whether admissible, 427 QUESTIONS, ability to answer, not conclusive as to capacity. 398 QUIATIMET, suit in nature of, to enforce contract to make will, 79 QUIET TITLE, equity construes will in suit to, 806 INDEX. 1149 (References are to sections.) R RATIFICATION of invalid will does not give it validity unless amount- ing to republication, 303-311, 428 "READ LAW," meaning of, 537 READING WILL to testator, whether necessary, 47, 380 may rebut presumption of fraud, 414 READING-ROOM, free, is charity, 646 REALTY, by what law devise of, governed, 28 distinguished from personalty, 33 contract to devise realty within statute of frauds, 74 after-acquired realty, 142 can not pass by nuncupative will, 232, Z4U title to depends on prjabate, 313 passes by "effects," 478 passes by "surplus," 479 described by reference to plat, 484 described by metes and bounds, 485 misdescription of, 487 , .qt misstatement of interest of testator, 48/ described by popular name, 488 gift of, at valuation, 490 does not pass by gift of deed 494 converted into personalty, 700-705 how charged with legacies, 749 how charged with debts, 764 whether subject to ademption, 782 right of devisee to possession of, 805 effect of incorrect description of, ^19 , ,. ^ , . ,. „ a9(\ extrinsic evidence inadmissible to contradict description, 820 See After-acquirkd Realty. "REAL ESTATE" does not pass mortgage, 483 what is "unimproved," 486 REASON. Effect of assigning reason as limiting gift, 64, 613, 6/3, RECEIPT of legatee for share is not revocation, 279 of monev, whether election, 724 _ RECEIVER,^ appointment of, as violation of condition against execu- tion, 685 RECIPROCAL WILLS, 66 RECITAL, when no implied gift from, 468 implied gift from erroneous, 468 of motive, whether condition, 673 _ RECOGNITION of illegitimate child, whether causing revocation, 290 RECOMMENDATION, words of. whether creating trust, 611 RECONVERSION in failure of original purpose 707 RECONVEYANCE does not prevent revocation by change of estate, 278 RECORD, filing instrument for, does not show it is not will, 44 RE-EXECUTION effects republication, 306 , , ,.„ ,.^ REFERENCE in will to document to be incorporated. 162, 163 to power, whether necessary, 698 _ REFORM Gift to promote Cause of land reform is valid, 653 Formation (OF beneficiary). Condition precedent to pay. ment of legacy, 679 REFORMATION (OF WILL) not allowed, 809, 816, 819 1150 INDEX. (References are to sections.) REFUSAL to admit will to probate is not conclusive, 343 REFUSED DEVISE accelerates remarnder, 737 disappointed legatee compensated out of, 737 REFUSED LEGACY, devolution ol, 744 REGIMENT, gift to support volunteer, valid, 653 REGISTRATION of domestic will not necessary, 44 REGISTRY of foreign will, 358 REJECTION of erroneous description, 487 RELATIONS, whether gift to poor, is charity, 647 who are, under statutes, preventing lapse, 743 RELATIONSHIP of testator and beneficiaries admissible to show inten- tion, 817 RELATIVES. Evidence of insanity of relatives of testator, whether ad- missible, 395 definition, 529 modified by context, 529 RELEASE, effect of, on competency of witness, 192 of interest of beneficiary, eflect of, 195, 196 of obligations, what obligations released, 501 of what, informal, 790 RELIGION, gift for, is charity, 649 condition requiring devisee to adhere to certain, 682 RELIGIOUS ADVISER, gift to. »S'ee. Undue Influence, Presumption. RELIGIOUS AND DENOMINATIONAL TEACHING, prohibition of, in school, is valid, 645 RELIGIOUS BOOKS, gift to publish, is charity, 649 RELIGIOUS CORPORATION, gift to is valid, 152, 153, 649 restrictions on gift, 25 RELIGIOUS EXERCISES, provision for, at conuty orphans' home is valid, 648 RELIGIOUS SECTS. Condition as to joining or not joining, 681, 682 REMAINDER. Devisable. 145 even if contingent, 145 created by implication, 468 term equivalent to residuum, 506 passed fee, 561 gift of, reduces preceding interest, 574 defined, 578 how created. 579 when taking efl'ect, 579 after fee-simple, void for repugnancy, 580 after life estate with power of distribution, whether void for re- pugnancy, 581 on breach of condition, 582 must not violate rule against perpetuities, 583 waiver of, 584 what property passes in, 585 where passing life estate, 614 vested, opening to let in after-born, 661 not subject to claims of creditors of life tenant, 697 accelerated by refusal of life estate. 737 REMAINDERMAN. Power of life tenant to bind, 586 of personalty may prevent waste, 596 protection of. 598 whether bond required of life tenant, 598 entitled to protection even if interest contingent, 666 INDEX. 1151 (References are to sections.) REMARRIAGE. Validity of, conditions against, 681 REMEDIES for breach of contract to make 'a will at law, 78 in equity, 79 of remainderman where life tenant fraudulently conveys property under power, 576 of remainderman to prevent waste of personalty, 596 REMOTE declarations, not admissible in evidence, 400 REMOTENESS. Poweij when void for, 626 gift over on failure of issue, when void for, 633 (S'ce Perpetuities, Vesting. REMOVAL from domicile, effect on will, 32 RENEWAL of note or lease does not work ademption, 781 RENT— CHARGE. See Charge. RENTS, how ascertained, 491 gift of for life, passes life estate, 491 absolute gift passes fee, 491 gift of, may pass reversion, 491 direction for collection of rents is not trust, 614 RENUNCIATION OF DEVISE, 584 "REPAIRS OR IMPROVEMENTS," does not include street assessments, 602 REPETITION of legacy, 798 See Substitutional, Legacy. REPRESENTATION. Words of, preventing lapse. See Lapse. "REPRESENTATIVE." Prima facie means executor or administrator, 533 meaning is not definite, 533 used of descendants, 533 used of heirs or legal successors, 533 REPROPOUNDING will for probate, 343 REPUBLICATION by parol, 271 of will revoked by later will, 271-274 definition, 303 history of law, 304 republication at common law, 304 at modern statutes, 305-311 methods of republication, 306-311 re-execution, 306 by codicil. 307 effect of republication, 308 validates defective will, 308, 311 upon devises of after-acquired realty, 309 revives revoked will, 310 REPUGNANCY. Last clause prevails, 503 between two residuary clauses, 510 gift over after fee is case of, 575, 577 gift over after life estate with general power of disposition, 577 remainder after fee, void for, 580 whether remainder after life estate with power of disposing of fee, void for, 581 of conditions to estate, 684 postponing payment beyond majority held void for, 802 See Inconsistent ProvisTons. REPUTATION of testator for insanity not admissible, 403 1152 INDEX. (References are to sections.) REQUESTS in will, when testamentary, 59 of testator for signature -by other, necessary, 176 witness signing without request of testator, does not invalidate will otherwise good, 190 of testator for witness is to sign, necessary, 218 REQUISITES of valid A^-ill, See Extrinsic Elements. RES GESTAE. Declaration of testator admissible as to undue influence, when, 423 of execution admissible in undtie influence, 429 RESCISSION of equitable transfer did not prevent revocation, 278 RESIDENCE. Where residence of witness is necessary to appear on will, 224 devise of, controls lot number, 484 held material in determining meaning of "family," 528 RESIDUARY BEQUEST. See Residuary Clause, Residuary Legacies. RESIDUARY CLAUSE in codicil supersedes residuary clause in will, 269 passes fee-simple, 482 when passing after-acquired realty, 489 general a.id particular distinguished, 505 defined, 505 form, 506 effect of enumeration of articles included in, 506 does not pass fire insurance, 507 position of, in will, 507 liberally construed, 507 what passes by, 507 failure of part of, 508 effect of failure of part of, 508 when good exercise of power, 698 when passing lapsed legacies and devises, 744 when passing void gift, 746 blending realty and personalty as charge, 755, 757 RESIDUARY DEVISE. See Residuary Clause, Residum. RESIDUARY LEGACIES abate first, 772 "RESIDUE" passes realty, 488 special meaning, 507 shows intent to blend realty and personalty, 757 of specific fund held specific, 767 RESIDUUM. Definition, 507 pro rata distribtition of, 509 eff"ect of equal distribution. 510 when lapsed gift becomes part of, 744 lapse of part of residuum, 744 when void gift becomes part of, 746 devolution where gift of, is void, 746 charged with debts, 764 of specific fund, whether specific, 774 "RESPECTIVE." Gift to heirs, creates estate in common, 589 RESTRAINT. Condition in, of marriage, 681 condition in, of litigation, 683 RESTRAINT OR ALIENATION. See Alienation, Restraint on, RESULTING TRUST may be devised, 145 what is, 617 in realty devised, passes by will, 279 RETROACTR^E statutes not favored by construction, 21 not constitutional after death of testator, 22 will retroacts to death of testator on probate, 358 INDEX. 1153 (References are to sections.) RETURN (of legatee). Condition requiring return and demand for legacy, 802 REVERSION is not "provision," 293 REVERSIBLE ERROR. What is, 333 REVIVAL. See Republication, Revivok. REVIVOR of will by revocation of revoking v^ill, 273 change of circumstances after revocation does not effect, 286 8ee Republication, 303-311 REVOCABLE. Whether written election is, 731 REVOCATION. I — In general — what constitutes revocation, 25 instrument effecting is not necessary will, 46 will always liable to, 50 even if joint, 68 or mutual, G8 or made in pursuance of a contract, 70 whether instrument as to which power of revocation is reserved is necessarily will, 52 definition, 244 history of law of, 244 distinguished from ademption, 781 definition, 244 history of law, 244 11 — Classes of revocation — 1. Revocation by act manifest on will, 245-261 burning, 247 what is burning, 247 tearing, 248 cutting, 248 scratching, 248 cancelling, 249 cancelling by writing, 249 when partial cancellation revokes entire will, 254 mutilation, 250 obliteration, 251 destruction, 252 actual, 252 constructive, 252 of duplicate will, 253 whether effecting partial revocation, 254 revocation does not exist if revoking act is prevented by fraud, 255 intention to revoke necessary to revocation, 256 who can revoke, 257 insane person can not revoke, 257 nor person suffering from delirium tremens, 257 no revocation if act done under mistake of fact, 258 or of law, 259 ineffective attempt to alter will is not revocation, 200 destruction without authority of testator is not revoca- tion. 261 2. Revocation by later instrument, 262-277 statutes as to revocation by act on instrument do not apply, 262 revocation by informal instrument, 263 by formal instrument, 264 by holographic will, 264 1154 INDEX. (References are to sections.) REVOCATION— Continued. by nuncupative will, 264 by revoking instrument which is not a will, 265 intention to revoke must appear on face of instrument, 266 express revocation clause shows intent to revoke, 267 except where cancelled, 267 or inadvertently inserted, 267 later will revokes if inconsistent, 268 codicil prima facie supplemental to, not inconsistent with, will, 269, 758 second will prima facie supersedes first will, 269 except where intention not to revoke appears, 269 effect of loss of later will, 270 effect of revocation of later will at English common law, 271 at modern English statutes, 272 at American common law, 273 at American statutes, 274 conditional revocation, 275-277 knov/n as dependent relative revocation, 275 revocation by act manifest on instrument to carry out in- effective alteration is not revocation, 2i6 or to execute ineffective will or codicil, 276 no revocation by later ineffective instrument, 277 except where second instrument fails by facts dehors the in- strument, 277 no revocation where later instrument is executed under mis- take of law or fact appearing ori will. 277 otherwise of mistake does not appear on will, 277 3. Revocation by alteration of estate, 278. 279 rule at common law, 278 conveyance of realty devised worked partial or total revoca- tion, 278 creation of particular estate did not revoke will, 278 transfer of personalty did not cause revocation, 278 rule at modern statutes, 279 4. Revocation by change of circumstances, 280-286 what change in circumstances operates as revocation, 280, 285 marriage of man, no revocation at common law, 281 of woman, revocation at common law, 284 under modern statutes, 281. 284 birth of child did not revoke will of father, 282 marriage and birth of child revoked will if child not pro- vided for, 282 marriage of woman operated as revocation, 284 effect of modern statutes, 284 effect of change not specified by law, 285 after revocation, further change can not revive will, 283 effect of birth of child, at common law, 287 under modern statutes. 287-296 gift to wife not revoked by judgment for alimony.^ 609 murder of testator by devisee is not revocation of will, 687 III — Evidence — 1. Burden of proof — in general, 448 if will is destroyed. 449 where revoking will itself is lost, 453 INDEX. 1155 (References are to sections.) KEVOCATION— Continued. 2. Presumptions — where will is missing, 449 or torn, 44!) where one of duplicate wills is lost, 253, 449 where second will is suppressed, 454 3. Admissibility— declarations of testator as to act of revocation are not ad missible, 450 but are as to his intention, 450 declarations of legatees, 451 of strangers, 452 when revoking will is revoked, evidence of intention, 271- 274, 454 proof of revoking deed, 455 REVOCATION (of election). See Election. EEVOCATION CLAUSE. EfTect of, 267, 268 REVOKED. Writing word not destruction, 252 REVOKED DEVISE is intestate property, 406 REVOKING WILL. Whether probate of. involves contest of first will, 322 RIFLES. Gift of, malces recipient a "legatee," 535 "RIGHT HEIRS." Meaning of, 515 RIGHT OF ACTION on contracts to make a will, 76 RIGHTS OF ENTRY. Whether devisable, 147 ROGATIO TESTIUM. What is, 237 must be proved for valid nuncupative will, 447 ROMAN CATHOLIC. Condition against legatee's becoming a, 682 ROMAN LAW. Will at, 6 effect on English law, 6 origin of holographic will, 229 use of "nuncupative will'" in, 232 will drawn by beneficiary void, 414 ROOM. Act done in same room, prima facie in presence, 210 RULE AGAINST PERPETUITIES. See Pekpetxjities, Rule Against. RULE IN SHELLEY'S CASE. See Shelley's Case, Rule in. RULE IN WILD'S CASE. Sec Wild's Case, Rule in. RULES 01' PROPERTY compared with rules of construction, 459 S SAILOR. Who is, 233 nuncupative will of, 233 SAILORS. Gift to home for, is charity, 648 SALE. When judicial sale defeats lien of legacy, 760 of chattel bequeathed causes ademption, 780 of realty works ademption, 781 See Power of Sale. SALVATION ARMY. Validity of gift to, 643 SANITY. Perfect, not requisite to testamentary capacity, 94 declaration of subscribing witness as to, inadmissible, 425 1156 INDEX. (References are to sections.) SATISFACTION of legacy, not to be tried in contest, 329 express provision that gift to creditor is in lieu of, 680 whether devise is in satisfaction of antenuptial contract, 717 distinguished from ademption, 782 of debt, informal, 790 not presumed in gift to debtor, 794 right of set-ofi' exists, 794 presumed where gift to creditor is of same nature as claim and equally advantageous, 795 not presumed otherwise, 796 express provision for satisfaction, 797 SAVINGS BANK. Order on, when testamentary, 56 SCHEDULE. Incorporation of, annexed to will, 162-167 SCHEME (of charity). Power of court over, 655 See Cy Pres. SCHOOLS. Gift for public, is charity, 645 ' SCIENCE. Gift to promote, is charity, 645 SCRATCHING surface of will is tearing, 24 SEAL. Addition of, does not invalidate will, 44 not necessary in will, 170 tearing off seal, as revocation, 248, 249 SEALING. What is, in mystic will, 243 SEAMEN. Wills of, 233 See Sailor. SECOND COUSIN. Definition, 532 excludes first cousin once removed, 532 SECONDARY EVIDENCE of contents of spoliated will, 440 SECRET EXECUTION OF WILL no presumption of undue infiuence, 429 SECRET TRUST. Devolution of, 466 when intestate property, 406 SECURITIES. Whether gift of, general, specific or demonstrative, 767- 770 SEIZIN. Effect of theory of, in will, 10 necessity of seizin in testator for valid devise, 144 SELECTION, conferring right of, on legatee creates specific legacy, 768 SENILE DEMENTIA. Effect on testamentary capacity, 102 See Testamextary Capacity. SEPARATE WILLS. Probate of, 314 SEPARATE TRACTS may pass under popular name, 488 SEPARATE ESTATE (of married woman). Power of feme covert over, 92 how created. 624 nature of, 624 SEPARATE USE, 624 See Separate Estate. SEPARATION. Gift for support during, valid, 681 condition requiring, invalid, 681 SEVERAL PIECES. Will may be Avritten on, 161 SERVANTS. Definition, 534 do not include public employees, 535 SERVICE in army' or navy, what is, 233 SERVICES. Rendition of, consideration for contract to devise, 72 condition as to, 678 held condition subsequent, 678 INDEX. 11^'7 (References are to sections.) SETTLING ESTATE, rostponement for convenience of, 548 postponeinent for convenience of, does not violate rule against per- petuities, 029 SET-OFF of legacy to debtor against debt, 794 SEVERALTY. Gift in, not gift to class, 542 , • • . • interests in, distinguished from interests in common and joint in- terests, 587 SEVERANCE. Words of, create estate in common in gifts to two or more, 588 . ^ SEXUAL INTERCOURSE. Unlawful, no consideration for contract .o devise, 72 "SHARES." When passes contingent _remainders, 482 does not pass debenture stock, 497 "SHARE." When excludes contingent interests, 789 "SHARE AND SHARE ALIKE" requires distribution per capita, 554 in gift to heir, 557 creates estate in common, 589 SHELLEY'S CASE (Rule in), at common law, 564 underlying reasons, 564 feudal in origin, 564 not rule of construction, 564 applies to leaseholds and equitable estates, 564 did not change fee-tail to fee-simple, 564 classes of statutes, 565 , ,- -^ +;„„ kak statute doe6 not apply if words are used as limitotion, 565 at modern statute, when rule of construction, 5bo efl'ect of gift over to "heirs" of first taker, 5*2 application to personalty, 595 SHIFTING of burden of proof, 369, 385 uses. See Trusts. SHOTGUN included in household goods, 493 SIGNATURE of testator, 170-187 what is, 170 See Extrinsic Elements. by testator, 170-187 by other at direction of testator, 174-179 must be made or acknowledged before witnesses, 201-20/ must be visible to witnesses to constitute acknowledgement. 205 what is presence during writing^ 212 form of, as denying execution, 379 SIGN MANUAL. Cij pres exercised under, 655 SIGNS. Will made by, 47 acknowledgment of signature by. 204, 205 witnesses requested to attest by, 218 SILENCE. When equivalent to request, 204, 205, 218 SILVER PLATE. Whether furniture, 492 SIMULTANEOUS PRESENCE of subscribing witness not necessary un- ices specifically required by statute, 216 SINGULAR includes plural, 522 SISTERS may include half-blood, 530 shown to be mistake for nieces, 819 SITUS of property determines jurisdiction of ancillary probate, 315 SLATE. Will written on, is invalid, 159 1158 INDEX. (References are to sections.) SOCIAL REFORM. Gift to advance, is charity, 653 SOCIATE WORDS. See Context. SOCIETIES. Gift to unincorporated, 643 SOLDIER. Who is, 233 nuncupative will of, 233 SOLDIERS AND SAILORS. Gift to home for, is charity, 648 SOLEJVIN FORM of probate, 312 SOLICITATION to make wiU, promise to cease, no consideration, 72 SON. See Child, Children, Consanguinity. SOUND MIND. See Testamentary Capacity. SOURCE. Description of property by reference to, 480 SPECIAL POWDER. Sec Powers. SPECIFIC BEQUEST. See Specific Legacy. SPECIFIC DEVISE passes mortgage, 483 charge of legacy upon, 758 no charge by blending in residuary clause, 758 SPECIFIC ENJOYMENT. Right of beneficiary to, 689, 707 SPECIFIC LEGACY. Defined, 768 examples, 768 not favored in construction, 767 abatement of, 775 * SPECIAL RESIDUARY CLAUSE, 466 SPECIE. Gift in, does not imply power of sale, 689 does not require conversion, 689 SPECIFIC PERFORMANCE of contract to devise, 79 SPENDTHRIFT TRUSTS definition and validity, 685 "SPINSTER OR UNMARRIED" includes widow, 537 SPIRITUALISM, 111 See Testamentary Capacity. SPIRITUALISTIC AD"\^SER. Gift to, not conclusively product of un- due influence, 420 SPOLIATION (partial). Definition, 300 effect of spoliation by stranger to will, 301 effect of spoliation by beneficiary, 302 SPOLIATION (total). • I — In general — definition, 261 is not revocation, 261 of later will, effeT?VTR Reference to, not laid out, 4S4 , •,• „ ftvc; STREKib. muit- mirsuing certain studies, Gto STUDENT. Gift to. on condition of pursuing gift to, by such description. 5.U SUBScTlBING WITNESS. «.. a™..o W.N.S.. SUBSCRIPTION, ^S8-224^_^ ^^^ risht of, whether income or principal, Wl- 1160 INDEX. (References are to sections.) SUBSEQUENT CONDITIONS, 672 See Conditions. SUBSTITUTION of children for deceased parents, 551 SUBSTITUTIONAL LEGACY. Definition, 798 subject to same condition as original, 674 provision in will for, 676 See Cumulative and Substitutional Legacies. SUCCESS of business, what is, 688 SUCCESSIVE GIFTS, effect of, when first gifts void as perpetuities, 630 SUCCESSOR of executor, whether power of sale exercisable by, 692 SUICIDE does not raise presumption of permanent insanity, 384 SUIT to construe will, 806-816 See Construction, Suit fob. SUMMONS in construction suit, 811 SUNDAY SCHOOL. Gift to, is charity, 649 SUPERSTITIOUS USES. Validity of gift for, 650 SUPPLYING WORDS from context, 473 SUPPORT as consideration for contract to devise, 72 direction to support does not reduce estate charged, 570, 573 charge of determines duration of indefinite devise, 573 power of sale for, does not enlarge fee, 576 power of sale of personalty for, does not give right to waste, 596 gift of income not limited to support, 599 duration of gift for support at homestead, 604 what is direction to, 604 whether included in gift of "home," 604 whether support or income given, 605 one entitled can not have possession of corpus, 605 charge for, whether trust, 613 estate on condition to, is vested, 662 condition as to, 678 held condition subsequent, 678 gift for support during separation from husband valid, 681 when amount necessary for, is to be determined by life tenant, 696 gift for, can not be used for donations, 696 when direction for, is charge, 751 when devisee personally liable for. 754 gift for support of minors, when due, 803 SUPPRESSION of vivisection, gift for, is valid, 653 "SURPLUS" may pass realty, 479 SURPLUSAGE as "hereinafter provided," treated as, 689 SURROUNDING FACTS. Evidence of, admissible, 817 "SURVIVING." When referring to death of testator by context, 546 "SURVIVING CHILDREN" indicates time of fixing class, 546 SURNAME. See Name. SURVIVOR. Definition, 536 when, in gift to class, does not include children of deceased mem- bers, 536 indicates time of fixing class, 546 when gift to includes children of pre-deceased members, 551 gift over to, reduces interests if others to life estates, 574 trust for life of, 618 when survivors of donees may exercise power of sale, 692 SURVIVORSHIP. Interest in joint tenancy not devisable because of, 140 SUSPICION. Unjust, not insane delusion, 105 INDEX. 1161 (References are to sections.) T TAIL. Estate in. See Fee-tail. TAX SALE as revocation, 278 TAXATION. Gift in reduction of, is valid, 644, 645 "TAXES," does not include street assessments, G02 TAXES deducted from income, 602 unless charged on other property, 6U2 TEACHERS. Gift for salary of, held charity, 645 TEARING. Revocation by, 248 when held cancelling, 249 presumption from. See Presumption. TECHNICAL WORDS. Misuse of, does not vitiate will, 2 TEMPORARY INSANITY. Effect on testamentary capacity, 109 no presumption of continuance, 384 TEMPORARY WILL. See Contingent Wills. TENANCY IN COMMON, ^ee Common, Estate in. TENANT FOR LIFE. See Life Estate. TENANT IN TAIL. See Fee-tail. TENEMENTS made devisable by wills act, 15 TERM. Gift vesting at end of, is perpetuity, 632 of years. See Leaseholds. TEST. What is, for presence, 210 TESTAJVIENT. Definition, 2 when made at age earlier than that at which will can be made, 88 where requiring fewer witnesses than wills, 188 beneficiary may prove unattested testament, 193 whether revoked by marriage of testatrix, 284 and will compared as to admissibility of evidence, 816 evidence to explain testaments, compared with wills, 816 history of. See History of Law^ of Wills. TESTAJMENTARY CAPACITY. I — Substantive law — under original wills act, 15 history of law of, 84 time at which capacity must exist, 85 is assumed in undue influeoice, 126 specific disqualifications. outlawry, 86 attainder, 86 alienage, 87 nonage, 88 coverture, 89-93 coverture at common law, testaments, 89 coverture at common law, wills, 90 coverture under powers, 91 coverture in equity, 92 insanity, 94-117 slight insanity does not destroy testamentary capacity , 94 criminal responsibility not test, 95 contractual capacity not test, 96 actual test enforced, 97 degree of memory necessary, 98 effect of size of estate, 98 classes of mentally afflicted, 99 J IG2, INDEX. (References are to sections.) TESTAMENTARY CAPACITY— Continued, idiocy, 100 idiocy incompatible with testamentary capacity, 100 imbecility, 101 comparison of imbecility with idiocy, 101 senile dementia, 102 old age, effect of, 102 insanity, 103-109 definition, 103 what degree destroys testamentary capacity, 103 . - Insane dehision — definition, 104 delusion must be genuine, 104 must consist of mistake of fact, 105 mistake must not be based on evidence, 106 nor removable by evidence, 107 effect of insane delusion on testamentary capacity, 108 Lucid interval — definition, 109 effect of lucid interval on testamentary capacity, 109 Eccentricity — definition, 110 effect on testamentary capacity, 110 Spiritualism — belief in, not insane delusion, 111 whether amounting to undue influence. 111 Witchcraft, belief in, not insane delusion, 111 Faith cure, belief in, not insane delusion. 111 Intoxication — effect of, on testamentary capacity, 112 effect at date of execution material, 112 effect of use of drugs, 112 Delirium — definition, 113 presumption as to continuance, 113 lucid interval in, 113 effect on testamentary capacity, 113 Delirium Tremens — ■ definition, 114 effect on testamentary capacity, 114 guardianship, effect of, on testamentary capacity, 115 disease, physical weakness and approaching death, effect of, on testamentary capacity, 116 Deaf, dumb and blind — common law rule as to testamentary capacity of, 117 modern rule, 117. judgment admitting will to probate conclusively determines, 341 II — Evidence — burden of proof, 382 rests upon contestant by majority view, 382 rests upon proponent by minority view, 382 presumption of sanity, 383 presumption of, continuance of, mental condition, 113, 384 does not exist where insanity of temporary type js shown, 384 injustice of will not sufficient to establish incapacity, 385 biit may corroborate affirmative evidence of, 385 financial standing of parties, whether admissible. 386 acquisition of property by testator admissible, 386 advancements admissible, 386 INDEX. "°3 (References are to sections.) opinion, evidence, 388-393 of subscribing witnesses, SbH of experts, 389 :?'l,i,>erts, who know facts on which to base opinion. 390 ^^Sintuon-Ure^n n,.e'af?o opinion of sanity and one of insanity, 390 . . what questions call for opinion, 392 what questions do not call for opinion, 391 at what time opinion must exist ^^^ execution, 394 ^rJ'^^ ^^cfito^'XttStLis'siUe. 3M, S., of testator's family, 395 il'iHt;'tranr; ,'uestio„s not eonCusive 398 Change of feelings, whether >nadm,ss,ble, 399 Tirior will admissible, 4UU , ■u^^ Ann record of guardianship admissible, 402 unless long after ^vill, 402 SutTtlnT'teta'toff-o. insanity not atoissible, 403 SfoT which Wi»< '' 'j-;,terty"S4ect tl IS, 19 ^r,'"o?7egiSonMStoVs .U. 2i. t5S ^prer':fte';:u\ort'o\-x;i;rwife and children, 23 in favor of mistress or illegitimates, 24 in favor of charities, 25 perpetuities, 2G .pijNST -See Property. See Perpetuities, Rule AOAiNbi. TESTAMENTARY TRUSTS. See Trusts. TESTATOR, definition, 2 ^^ g^g "THEN," use of word, as indicating time tor nxin„ "THEIR" read as "my," 473 THELLUSON'S WILL, 638 "THEN HEIRS" indicates time of fixing class, 546 "THEN LIVING" indicates time of fixing class, 546 provides for lapse, 551 _ THEOLOGICAL SEMINARY gift to - chanty, 64 ^^^^^^^^^ ^^^^ THREATS of beneficiaries admissible to show u THREATS of stranger to will, when admissible, 425 TILDEN'S WILL, 643 TIME for statutory election, ^29 of ascertaining members of class, 54& TITLE, failure of, to devise, 793 TOMB, gift providing for, 488 TOWN, charitable gift to, 644 ^„>,^tp ^57 ?HANSCRfPT of P^«edingv»t^^^^^^^^^^ ^^SmIs'sIBLE iTtEUESTS a.e aione devisahie. UO 1164 INDEX. (References are to sections.) TKAIJ^SPORTATION (of husband) as aflecting testamentary capacity of wife, 89 TRANSPOSITION (of clauses) allowed in construction, 473 TREATIES may protect right of alien to take by devise, 151 TRUST AND CONFIDENCE, relations of. -S'ee Confidential Rela- tions. TRUSTEE, whether competent subscribing witness, 194 of beneficiary corporation, will drawn by, no presumption of undue influence, 414 gift to, for corporation, 539 gift to natural persons as, is not gift to corporation, 539 power of sale to, does not enlarge life estate to fee, 576 necessity of, 610 takes legal estate, 614 powers in dry trustee, 615 rights of, on failure of trust, 616 takes estate necessary to perform trust, 618 discretionary power, 619 death of trustee, defeats discretionary power, 619 death of, does not defeat ordinary trust, 019 effect of appointment in charitable trust, 643 discretion of, to make division, creates contingent interest, 664 when trustee puts cestui que trust to election, 717 death of, does not cause lapse, 739 bare trustee. See Trusts (Dry). TRUSTS, law controlling in, 35 declared against heirs on contract to make a will, 79 resulting, may be devised, 145 ex maleficio, created by power, 413 elements, 610 whether created by precatory words, 611, 612 whether created by words showing motive, 613 express trust, how created, 614 Dry trust — defined, 615 efl["ect of, 615 payment may be direct to cestui que trust, 614 ^ failure of purpose, effect of, 616 duration, 618 discretion of trustee, 619 Parol — not enforceable, 620 unless ex tnalificio, 621 validity, 621 void if in violation of rule against perpetuity, 621 interest of beneficiary, nature of, 622 for accumulations, 623 separate estate of married woman, 623 separate trusts can not be added to make perpetuity, 637 distinguished from condition, 673 spendthrift, 685 does not lapse by death of trustee, 739 whether direction for support is trust or charge, 751 what is, to pay debts, 764 TRUSTS EX MALEFICIO. Hce Trusts. TWO LIVES, gift for, not perpetuity. 637 TYPE-WRITING, will valid if in. 159 INDEX. 1165 (References are to sections.) U ULTRA VIRES condition, gift to- corporation on, 675 UNATTACHED WRITINGS. See Incorporation. UNATTESTED will or codicil is invalid, 158, 190 UNBORN CHILD as affecting revocation, 289 UNCERTAINTY, will void for, 487, 822 avoids contract to devise, 73 gift void for, devolution of, 466 of devise of realty rendered clear by other devises, 485 in description of realty avoids devise, 487 devise void for, of description of property, 488 pro rata distribution of residuum void for, 509 gift to "family" once held void for, 528 in description of natural person, 538 name prevails over description, 538 in description of corporation, 539 in name does not avoid gift if beneficiary ascertainable, 539 where two corporations have identical name, 539 as to duration of estate, aided by direction to support, 573 of subsequent gift, will not cut down fee already given, 574 of beneficiary avoids gift, 583 of beneficiary in trust GIO of purpose of trust, 610 may exist, of beneficiaries under charitable trust, 643 in purpose, when invalidating charity, 654 of beneficiary, devise void for, 678 gift void for, 745 UNCONSCIOUSNESS, act done during, is not in presence, 209 UNCONVERTED, election to take property, 718 UNCHASTITY, false belief in, not insane delusion, 105 UNDERVALUATION of property disposed of by will is binding, 490 UNDISPOSED OF INTEREST. See Intestacy, Intestate Property. UNDUE INFLUENCE I-^General principles — belief in spiritualism, 112 definition, 125 compared with duress, 133 theory underlying doctrine, 126 testamentary capacity exists if undue influence is material, 126 test of undue influence, 126 Elements of undue influence — influence must exist, 127 must overpower mind of testator, 127 classes of undue influence, 128 actual undue influence, 128 special forms, 128 constructive undue influence, 408-421 by whom undue influence may be exerted, 129 at what time undue influence must exist, 130 effect of undue influence, 131 may avoid part of will only. 131 is not shown by injustice of will, only, 132 one under, can not revoke, 257 gift to medium not per se undue influence, 420 will made under advice of spirits, 420 gift to medium caused by deceit and undue influence, 420 1166 INDEX. (References are to sections.) UNDUE INFLUENCE— Continued, charge of court on, 333 absence of, conclusively established by judgment in contest, 341 II — Evidence — 1. Burden of proof — evidence in such cases largely circumstantial, 404, 406 burden of proof, 405, 416 shifting of burden, 406 burden extends only to preponderance of evidence, 407 burden where beneficiary is in confidential relations with testa- tator, 416 2. Presumptions — of fact are available to proAe. 406 in undue influence are generally presumptions of fact mere- ly, 408 no presumption arises out of relation of parent and child, 409 nor out of relation between husband and wife, 410 w'nere unlawful sexual relations, presumption of undue in- fluence formerly arose, 411 but not at modern law, 411 relation is important, 411 relation between husband and wife before marriage imma- terial, 412 no presumption arises as between attorney and client, 413 except where attorney drafts the will, making himself bene- ficiary, 413 rule does not apply when attorney is merely executor, 413 presumption arises from beneficiary's drawing will. 414 from beneficiary's drawing will is of fact, not law, 414 from beneficiary's drawing will may be rebutted, 414 fact from beneficiary's drawing will, how rebutted, 414 furnishing data for will does not create, 414 no presumption where father of beneficiary draws will, 414 no presumption of, where attorney of beneficiary draws will, 414, 415 emploATiient of draughtsman by beneficiaries does not create, 414^ 415 presence of beneficiaries at execution does not create, 415 arises where beneficiary is in confidential relations with testa- tor, 416 will in favor of one business relation with testator does not create, 416 does not arise where beneficiary is friend of testator, 417 arises from gift to nurse or physician in last illness. 418 does not arise when physician advises testator to arrange his afl'airs, 418 arises from gift to religious adviser, 419 does not arise from gift to church of pastor, 419 opportunity of exerting undue influence does not create pre- sumption, 421 inequality of distribution does not create, 421 3. Questions of admissibility — physical condition of testator material, 126 that beneficiary did not exert influence, 129 former intention of testator admissible. 422 declarations of testator admissible to show feelings and motives, 423 declarations of testator not sufiicient to show, without other evidence. 423 INDEX. ll®*^ (References are to sections.) TODUE I^^,l^US^E-^,-;;SrSe contradict deC.ratious offered i. evi- dence, 423 , • •,, .oq remote declarations not admissible, 4Zc5 ^- e 4- declarations of testator inadmissible if narratives of past event, 423, 425 .^ . .oi declarations of beneficiaries admissible if res gestae, 424 declarations of beneficiaries admissible if material 424 declarations of beneficiaries, admissible if against sole in- terest, 424 n ■ • AOA but not if against interest of other beneficiaries, 424 or if showing opinion, 424 , . ^ i.- ^f threats of beneficiary admissible if referring to execution of will, 424 otherwise inadmissible, 424 . r r 4. f declarations of strangers admissible when part of facts ot execution, 425 otherwise inadmissible, 425 fairness of will important, 42f, fairness and justice of will a question of fact, 42b _ relations between tes_tator, beneficiaries and heirs important generallv, 426, 427 but inadmissible if too remote, 426 when conduct of beneficiary admissible, 420 facts explanatory of will, 427 _ wealth of beneficiary, whether admissible 427 source of testator's wealth admissible when affecting will, 497 men'tal and physical condition of testator admissible, 428 fact of non-revocation of will admissible, 428 causes of explaining non-revocation admissible, 428 ignorance of testator as to contents of will, admissible, 428 circumstances of execution, admissible 42J hearsay evidence as to facts of execution, admissible, 429 opii^ioJs of persons knowing facts as to existence of undue influence, admissible, 430 but not as to fairness of will, 430 See Duress, Fraud, Mistake. UNENFORCEABLE DEBT, eflfect of direction to pay, 498 UNEQUAL- DIVISION of property by will is not undue influence, L3- but may be evidence of it, 426 "UNEXPENDED PART," gift of, shows that first taker had fee, 5/. UNGRAMMATICAL WILL, how to be construed, 471 UNFINISHED will of no validity at modem If^^^' If?, .,, ■ ^^^. document incorporated in will can not be furnished after will is exe cuted, 162, 163 UNIFORMITY of, meaning of, words in ^viH, 469 of meaning of words presumed, 515, 529, 53- of "cousins" in Avill, 532 of "relatives," 529 UNIMPROVED REAL ESTATE, what is, 4S6 UNINCORPORATED ASSOCIATION, charitable devise to, 643 gift to poor of, is charity, 647 gift to Sunday school is valid, 649 UNITED STATES, gift to, 154 , . i ,.cf '?T=; UNITED STATES COURTS, jurisdiction of, in probate and contest, UNIVERSITY. Gift to unincorporated state university, 154 1168 INDEX. (References are to sections.) GNJUST WILL. See Injustice of Will. UNLAWFUL INTENTION not presumed, 465 UNLAWFUL TRUST, effect of, 466 not implied in construction, 610 •'UNMARRIED WOMAN" includes widow, 284, 537 but not married woman, 284 UNREASONABLE DISPOSITION. See Injustice of Wnx. 'UPLAND/' devise of, 819 USE, personalty described by, 495 USE AND OCCUPATION, gift of, when passing property, 561 USES, STATUTE OF, effect on wills, 14 VALIDITY of devises can not be tested by contest, 323 of specific bequest not determined by order of probate, 341 VALUABLE PAPERS, when holographic will must be found among, 231 446 party may testify to finding will among, 361 VALUATION of realty, 490 gift at, when charge, 753 VALUE, change in, of testator's estate, no revocation, 278 gift at fixed value makes case for election, 717 set by testator upon devise is conclusive, 788 legacies for, 776 legacy for, not liable to abatement, 763, 776 VENDEE, devise by, of realty, contracted for, 482 V'ENDOR, devise by, of realty to be sold, 482 l^ENTRE SA MERE. See Child (en ventre sa mere). VERACITY of attesting witness may be attacked, 374 VERBAL INSTRUCTIONS, reference to, in will, 168 VERDICT, in contest, form of, 335 VESTED INTEREST is devisable, 657 power of disposition of, 669 early vesting of legacies preferred, 670 rule against perpetuities does not apply to, 628, 631 VESTED REMAINDER. See Vested Interest. VESTING, when time of, fixes class, 549 time of, controlled by rule against perpetuities, 620 does not affect restraints on alienation, 626 gift not capable of vesting within proper time, void by rule against perpeituities, 629 defined, 656 elements involved in, 656 divesting vested gift, 656, 662, 666 effect of gift to class to be determined in future. 656, 665 practical distinction between vested and contingent interests, 657 early vesting preferred in construction, 658, 603 Interests in realty — postponing possession does not defer vesting, if for interme diate estate, 659, 663 rule where no intermediate estate, 659 modification by context, 659 effect of gift over, 659 INDEX. 1169 (References are to sections.) VESTING — Continued. eflect of power of sale, 6G0 uncertainty of amount of gift, 660 opening to let in atter-born, 001 defeated on condition subsequent, 662 death of life tenant before testator, 662 classes of contingencies,. 604 Interests in personalty — postponement of possession, 666 vested interest preferred in construction, 667 postponement of possession for intermediate interest, jreatea vested le'gaoy, 608 not for intermediate interest, vested right unless not given except by direction to pay legacy, '669 VIVISECTION, gift for suppression of, is valid, 653 VOID CONDITION in total restraint of first marriages, 681 in furtherance of divorce, 681 VOID DEED does not revoke will, 278 VOID judgment in contest open to collateral attack, 341 VOID LEGACIES AND DEVISES. Who- may attack gift as void, 25 Classes of void gifts — to paramour, 25 to illegitimates, 25 to charities, when, 26 uncertain gifts, 48, 822 part of will for undue influence, 131 to subscribing witness, 196 to spouse of subscribing witness, when, 198 to beneficiary who spoliates will, 302 in violation of Rule against Perpetuities, 629, 677 definition and examples, 745 devolution, 746 where part of residuum, 746 where not part of residuum, 507, 746 where no residuary clause, 466 of gift in violation of Rule against Perpetuities, 629 See Conditions, Perpetuities, Rule against. VOIDABLE DEED operated as revocation, 278 VOLUNTARY ASSOCIATION, charitable devise to, 643 gift to poor of, is charity, 607 VOLUNTEER, whether soldier, 233 VOLUNTEER REGIMENT, gift to, is charity, 653 W WAIVER, of remainder, 584 definition, 710 WASTE by life tenant, prevented, 576 prevented in life interest in personalty, 596 by executor, does not create contribution, 793 WASTE PAPERS, putting will in, is not destruction, 252 WATCH AND CHAIN are not "furniture," 492 WATER WORKS, gift to, ornament grounds of, charity, 652 WEAKNESS, physical, 116 See Testamentary Capacity. 1170 INDEX. (References are to sections.) WEALTH of beneficiaries, inadmissible in evidence, 386, 427 of testator, source of, admissible to explain will, 427 WEARING APPAREL, gift of, 495 ''WHAT IS LEFT," effect of gift of, 695 WIDOW, whether included in "family," 528 include under gift to "spinster or unmarried" nieces, 537 condition against remarriage, valid, 571 gift to, is perpetuity when including future wife, 632 WIDOW'S ALLOWANCE affected by election, 734 WIDOWER. Condition against remarriage is valid, 571 WIDOWHOOD, estate for, a life estate, 571 WIFE. Power of testator to exclude wife, 23-25 could not devise to husband, 156 of beneficiary competency as subscribing witness, 197 of executor, competent, 199 of testator, competency, 200 not presumed to exert undue influence over husband, 410 relations with husband before marriage do not show undue influence, 412 meaning of term. 511 may include mistress, 511 when including subsequent wife, 511 when gift to, violates rule against perpetuities, 511 when included in "heirs," 513 whether included in "family," 528 gift to future, is perpetuity, 632 WILD'S CASE, rule on, 567 WILI^ I — General nature — relation of law of, to other titles, 1 definition, 2 what property could be disposed of by, 18, 19 word, not conclusive as to character of instrument, 44 distinguished from testaments as to attestation by witness, 188 acknowledgment of, instead of signature, 206 revoking instrument is not, 265 not probated at common law, 312 must be probated at modern statute, 314 probated without codicil, 314 how to be described in contest proceedings, 333 is admissible in evidence at contest, 368 admissibility of previous will on question of incapacity, 400 when not "appointment of life insurance, 500 and testaments compared to admissibility of evidence. 816 former, admissible in construction, 819 what property can pass by. See Property. made in pursuance of contract. See Contract to Make Wills. history of law. See History of Law of Wills. revocation of. See Revocatton. II — Inherent elements — definition, 42 distinguished from extrinsic, 42 origin and classes. 43 use of word "will" not necessary, 44 nor conclusive, 44 animus testandi, 44-49 what wishes are testamentary, 45 INDEX. 1171 (References are to sections.) WILL — Continued. what wishes are not testamentary, 46 realty of intention, 47 eixpression of intention in definite terms, 48 intention that will shall take effect only at death of testator, 49 must be revocable, 50 effect of omission of inherent elements, 51 wills and deeds confused, 52, 53 wills and contracts confused, 54, 55 wills and orders confused, 50 wills and powers of attorney confused, 57 informal wills, 58 precatory words, 59 contingent wills, 60, 61 WILLS ACT, original, 15 WISH of testator, whether binding, 59 See Precatory Trust. WITCHCRAFT belief in, not insane delusion. 111 WITHDRAWAL of written election, 731 "WITHOUT" HEIRS, ISSUE, ETC. See Dying without Issue, Issue. WITNESS, who is competent in suit on contract to devise, 81 subscribing, attests capacity of testator, 208 effect of, signing before testator, 222 word, sufficient as attestation clause, 223 not necessary to holographic will, 229 addition of, does not invalidate holographic wull, 230 testator must call on witness in nuncupative will, 237 who can be at Louisiana law, 241, 242 examination of, at probate, 320 at probate, not limited to subscribing witnesses, 366 number of, in nuncupative will, 238 competency of, 238 in spoliated wills, 435 WOMAN, marriage of, revoked her will at common law, 284 efiect of modern statutes, 284 WOMAN SUFFRAGE, gift to promote, is valid, 053 WORDS (of will) show intention of testator, 400 presumed to have same meaning throughout ^^^ll, 469 presumed to have popular meaning, 471 WORDS, when amounting to election, 720 WORDS AND PHRASES. Above, 474 and. 473 any, 473 bequeath, 473 between, 473 devise, 473 donors, 473 effects, 478 estate, 476 heir, 479 hereinbefore, 474 home place, 488 homstead. 488 judge of probate, 474 lawfully begotten heirs, 518. legacy, 474 lot, 484 1172 INDEX. (References are to sections.) WORDS AXD PHRASES — Continued. mountain land, 488 next oi kin, 521 not previously disposed of, 503 old homestead, 488 or, 473 own at death, 475 portion after my father's death, 479 premises, 488 property, 476, 488 residue, 488 - shares, 482 surplus, 479 their, 473 theirs. 513, 514 unimproved real estate, 486 /S'ee also Definitions. WORDLY ESTATE. See Estate. WRITING, will requires to be in, 816 nuncupative will must be reduced to, 239 m face of will, when cancelling, 249 WRITTEN ELECTION, evidential only, unless required by statute, 727 WRITTEN WILL, whether opportunity to make written will, invalidates nuncupative will, 234 YACHT not article of "personal use and ornament," 495 YACHTING, gift to promote, not charity, 654 YEAR. Legacy payable in one year after death of testator, 803 "YOUNGEST GRANDCHILD," 473 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 836 333 5