4ft illlllfsf Masr Usss UTS' R77 (2}flrn?U Katu ^uriynnl lOibranj Cornell University Library KF 755.R77 A treatise on the law of wills :includin 3 1924 018 799 050 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018799050 STANDARD LAW SCHOOL CASE BOOKS Administration and Government— Goodnow's Cases on Government and Administra- tion, by Frank J. Goodnow, Eaton Professor of Administrative Law and Municipal Science in Columbia University. 1 volume 92.50 net. Agency — Mechem's Gases on the Law of Agency, by Floyd R. Mechem. Professor of Law In the University of Chicago. 1 volume 93.00 net. American Administrative Law — Goodnow's Cases on American Administrative Law Including Public Officers and Extraordinary Legal Remedies, by Frank J. Good- now. 1 volume 96.00 net. 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[In preparation]. Wills— Rood. Including also Gifts Causa Mortis and a summary of the law of Descent, Distribution and Administration, by John R. Rood, Professor of Law University of Michigan. $4.00 net. CALLAGHAN & COMPANY General Offices 401-409 E. OHIO ST. CHICAGO Retail Store •8 W. WASHINGTON ST. A TREATISE ON THE LAW OF WILLS INCLUDING ALSO GIFTS CAUSA MOETIS AND A SUMMARY OF THE LAW OF DESCENT, DISTRIBUTION AND ADMINISTRATION BY JOHN It. ROOD CHICAGO CALLAGHAN & COMPANY 1904 iv PREFACE. Am. Dec, Am. Rep., Am. St. Rep., L. R. A., Pro. R. A., official reports, or law magazines. It is surprising how many questions have been thus treated. By looking through the text it will be observed that there is a refer- ence to such notes in almost every other section, and often several notes are found on the matter of one section. Many of these notes are very valuable and not readily found or thought of when the particular question comes up. It is hoped that reference to these will serve greatly to amplify the scope of the text, and to extend its useful- ness as an index to the decided cases. In discussing questions on which the statutes differ an attempt has been made to indicate what the statute of each state is, citing the latest compilation, and arranging the states by groups and in alphabetical order. Likewise, in considering the questions on which the courts are not agreed, the states have been tabulated in alphabetical order, and reference made to the principal and the latest decision in each state where decisions on the question are found. It is due my excellent friend, Professor Floyd R. Mech- em, to say, that he encouraged me' to undertake the pres- ent work, often materially aided me in the execution of it, gave me free use of the material prepared by him while teaching these subjects at the University of Michi- gan (much of which I have used), and that his scheme of treatment has been substantially followed throughout. JOHN R. ROOD. Ann Arbor, Mich., Feb. 1st, 1904. TABLE OF CONTENTS. Preface page ill Table of Contents page vii Table of Cases page xi PART I. INTRODUCTION. Introduction, Chapter I, §§ 1-14. 1. Philosophy of Property and Succession, §§ 1-8. 2. History of Property Transfers by Tradition and Succes- sion, §§ 9-12. 3. Outline of the subject, §§ 13-14. PART II. GIFTS CAUSA MORTIS. Gifts Causa Mortis, Chapter II, §§ 15-43. 1. Nature and Essentials, §§ 15-36. 2. How Defeasible, §§ 37-43. PART III. WILLS. Plan of Treatment, Chapter III, § 44. Definition, Nature, and Kinds of Wills, Chapter IV, §§ 45-76. What May Be Disposed of oy Will, Chapter V, §§ 77-102. 1. What is a Devisable Estate, §§ 77-88. 2. Disposition of Property Prevented by Testator's Obliga- tions", §§ 89-102. Who May Make a Will, Chapter VI, §§ 103-151. 1. Any Person, §§ 104-5. 2. Of Pull Age, §§ 106-7. 3. Of Sound Mind, §§ 108-137. 4. Persons Under Constraint (legal), §§ 138-151. Error, Fraud, and Undue Influence, Chapter VII, §§ 152-191. 1. Errors, §§ 152-168. 2. Fraud, §§ 169-174. 3. Undue Influence, §§ 175-191. Who May Take oy Will, Chapter VIII, §§ 192-213. 1. May be Made to Any Person, §§ 192-196. 2. Unless Forbidden by Express Statute, §§ 197-210. 3.' Or Opposed to Public Policy, §§ 211-213. V vi , TABLE OF CONTENTS. Formal Requisites m Making Wills, Chapter IX, §§ 214-318. 1. Formal Eequisites Before the Statute of Frauds, §§ 215- 218. 2. Formalities Required by Statute of Frauds and Subse- quent Acts, §§ 219-318. Revocation of Wills, Chapter X, §§ 319-391. 1. Revocation by Act of the Testator, §§ 321-365. 2. Revocation by Operation of Law, §§ 366-391. Republication and Re-execution of Wills, Chapter XI, §§ 392-397. By What Law Wills are Governed, Chapter XII, §§ 399-409. 1. As to Time, §§ 400-407. 2. As to Place, §§ 408-409. Construction and Effect of Wills, In General, Chapter XIII, §§ 410-434. Ascertaining the Beneficiaries and Their Respective Shares, Chapter XTV, §§ 435-489. 1. As to Certainty of Description, §§ 436-441. 2. Particular Terms Considered, §§ 442-461. 3. Description Refers to What Time, §§ 462-482. 4. Division Per Capita or Per Stirpes, §§ 483-489. Ascertaining What Property is Included, Chapter XV, §§ 490-529. 1. General Rules as to Description of Property, §§ 491-497. 2. Construction of Particular Expressions, §§ 498-502. 3. Construction of General Devises, §§ 503-505. 4. Construction of Specific Devises, § 506. 5. Conflicting Descriptions, §§ 507-512. 6. False Descriptions, §§ 513-4. 7. Uncertain and Insufficient Descriptions, §§ 515-516. 8. Personal Property Described by Location, §§ 517-519. 9. Residuary Clauses, §§ 520-522. 10. From What Time the Will Speaks, §§ 523-529. Ascertaining the Quantity or Duration of the Estate, Chapter XVT, §§ 530- 561. 1. As to Personal Property, §§ 530-538. 2. As to Real Property, §§ 539-561. As to Time of Enjoyment of the Estate, Chapter XVII, §§ 562-577. As to Vesting and Divesting of Future Estates, Chapter XVIII, §§ 580-591. Nature, Construction, and Effect of Conditions, Chapter XIX, §§ 594-665. 1. General Nature and Effect of Conditions, §§ 594-604. 2. Legality and Construction of Particular Provisions, §§ 605- 665. Lapse and Substitution, Chapter XX, §§ 666-702. 1. Lapse, §§ 667-672. 2. Statutes Providing for Substitution, §§ 673-679. 3. Substitution by Provisions in the Will, §§ 680-702. TABLE OF CONTENTS. vii Bights and Liabilities of Devisees and Legatees, Chapter XXI, §§ 703-756. .1. Nature and Kinds of Gifts as to Subject-Matter, §§ 703-709. 2. Ademption of Legacies, §§ 710-734. 3. Satisfaction of Debts by Legacies, §§ 735-740. 4. Abatement of Legacies, §§ 741-747. 5. General Legacies Charged on Land and Specific Legacies, §§ 748-756. PART IV. DESCENT AND DISTRIBUTION. Descent and Distribution, Chapter XXII, §§ 757-787. 1. Descent, §§ 757-778. 2. Distribution, §§ 779-787. FART V. ADMINISTRATION OF ESTATES. Jurisdiction of Court and Appointment of Officers, Chapter XXIII, §§ 788- 819. 1. Preliminary Questions — Jurisdiction and Nature of Pro- ceedings, §§ 788-798. 2. Official Titles of Several Administrative Officers, §§ 799-804. 3. . Who are Competent to Act, §§ 805-807. 4. Who are Entitled to Preference, §§ 808-810. 5. Qualification for the Office, §§ 811-814. 6. Appointment, Eemoval and Evidence of Authority, 8§ 815- 819.' Administering and Settling the Estate, Chapter XXIV, §§ 820-895. 1. Acts Done Before Appointment, §§ 820-1. 2. Officer's Eight and Title to Property of Deceased, §§ 822- 840. 3. Inventory and Appraisement, §§ 841-845. 4. Collection and Possession of Assets, §§ 846-848. 5. Powers and Duties in the Management of the Estate, §J 849-861.' 6. Liability of Eepresentative, §§ 862-867. 7. As to the Paying of Debts and Legacies, §§ 868-878. 8. Co-executors and Administrators, §§ 879-883. 9. Foreign Eepresentatives, §§ 884-888. 10. Administrator with the Will Annexed, § 889. 11. Administrator de Bonis Non, §§ 890-1. 12. Accounting and Discharge of the Officer, §§ 892-895. Topical Index ..,,,,.., iinmii page 555 TABLE OF CASES CITED. [references are to sections.] Aaron v. Aaron, 3 DeG. & S. 475 . . 396 Abbott v. Bradstreet, 3 Allen 587.. 470, 471 Abbott v. Jenkins, 10 Serg. & R. 296 683 Abel v. Abel, 202 Pa. St. 543 440 Abraham v. Wllkins, 17 Ark. 292 . . 265, 294 Abrams v. Winshup, 3 Russell 350.. 539 Acken v. Osborn, 45 N. J. Eq. 377. . : 587, 687, 694 Ackland v. Ackland, 2 Vera. 687... 539 Acton v. Lloyd, 37 N. J. Eq. 5... 437 Adair v. Adair (1902, N. Dak.), 90 N. W. 804 413 Adair v. Adair, 11 N. Dak. 175.. 705 Adams, Goods of, L. R. 2 P. & D. 367 246 Adams v. Adams, 45 Ch. D. 426.. 622 Adams v. Adams, 1 Hare 537 .... 495 Adams v. Adams (1898, Ky.), 47 S. W. 335 554 Adams v. Adams, 154 Mass. 290... 442 Adams v. Adams, 55 N. J. Eq. 42.. 739 Adams v. Akerlund, 168 111. 632.. 502 Adams v. Atherton, 132 Cal. 164 . . 39 Adams v. Chaplin, 1 Hill. Ch. 265.. 298 Adams v. Cowan, 177 U. S. 471 . . 716, 719 Adama v. Farley, 18 So. 390 433 Adams v. Field, 21 Vt. 256 256, 257, 260, 273 Adams v. Jones, 176 Mass. 185 .... 431, 448, 682 Adams v. Lllllbrldge, 73 Conn. 655.. 470, 537, 546 Adams v. Logan, 6 T. B. Mon. 175 482 Adam's Estate, 201 Pa. St. 502... 191 Additon v. Smith, 83 Me. 551 707, 708, 743 Aiken v. Wickerly, 19 Mich. 482.. 303 Akerman v. Akerman, 71 N. H. 55.. 468, 475 Akers v. Clark, 184 111. 136 448 Albee v. Carpenter, 12 Cush. 382.. 637 Albert v. Albert, 68 Md. 353 458 Albert v. Albert, 74 Md. 526 719 Alden v. Johnson, 63 Iowa 124 . . 381, 386 Aldrich v. Gaskill, 10 Cush. 155.. 506 Alexander v. Alexander, 5 Beavan 518 699 Alexander v. Alexander, 156 Mo. 413 623 Alexander v. ToIIeston Club, 110 111. 65 199 Alf ord v. Earle, 2 Vera. Ch. 209 . . 393 Alger's Will, 38 Misc. 143 352 Allanson v. Clitherow, 1 Ves. Sr. 24 632, 641, 642 Allbright v. Hannah, 103 Iowa 98... 53, 57 Allen, In re, 151 N. T. 243 521 Allen v. Allen, 18 How. 385 526 Allen v. Allen, 75 Minn. 116 26 Allen v. Allen, 13 S. Car. 512 715, 721, 728, 731 Allen v. Allen, 2 Tenn. 172 210 Allen v. Griffin, 69 Wis. 529 279 Allen v. Jackson, 1 Ch. D. 399 . . 612 Allen v. Jeter, 6 Lea 672. .271, 325, 337 Allen v. Little, 5 Ohio 65 146 Allen v. McPherson, L. R. 1 H. L. Cas. 191 167, 170, 172, 174 Allen v. Maddock, 11 Moore P. C. C 427 250, 396, 395 Allen v. Mattison (1898, R. I.), 39 Atl. 241 748 Allen v. Merwin, 121 Mass. 378... 739 Allen v. Richards, 5 Pick. 512 .... 506 Allen v. Ruddell, 51 S. Car. 366.. 749 Allen's Appeal, 69 Conn. 702 434 Allen's Matter, 151 N. V. 243..682, 692 Allen's Succession, 48 La. An. 1036 421, 424, 492 Allen's Will, 25 Minn. 39 255, 289 Allender v. Sussan, 33 Md. 11 648 Allison V. Allison (1903, Va.), 44 S. E. 904 453,470,659 Allison v. Allison, 46 HI. 61 283 Almand v. Whitaker, 113 Ga. 889.. 483 Almy v. Jones, 17 R. I. 265 677 Alters' Appeal, 67 Pa. St. 341 58, 154, 155, 400 Alverson v. Randall, 13 R. I. 71 . . 551 Ambre v. Welshaar, 74 111. 109... 303 Amer. Bible Soc. v. Marshall, 15 Oh. St. 537 201 American Bible Society v. Price, 115 111. 623 122,136 IX TABLE OF CASES CITED. [references are to sections.] Amer. Bible Soc. v. Wetmore, 17 Conn. 181 439 Amer. Board of C. P. M. v. Nelson, 72 111. 564 378 Ames v. Ames, 40 Ore. 495 283 Ametrano v. Downs, 70 N. Y. S. 833 711 Amherst College v. Ritch, 151 N. Y. 282 173, 201 Ammon v. Martin, - 59 Ark. 191.. 31, 32 Amory v. Fellowes, 5 Mass. 219 . . 312 Amory v. Meredith, 7 Allen 397.. 504 Amos, In re, 3 Ch. D. 159 (1891).. 439 Amosnino, Goods of, 1 Sw. & Tr. 508 250 Amphlett v. Farke, 2 Rus. & M. 221 672 Anderson v. Anderson, L. E. 13 Eq. 381 210 Anderson v. Berkley, 86 Law Times 443 436 Anderson v. Brown, 84 Md. 261 . . 660, 665 Anderson v. Cary, 36 Ohio St. 506.. 607 Anderson v. Eggers, 61 N. J. E. 85 52, 54 Anderson y. Jackson, 16 Johns. 382 574, 630, 631, 633, 637, 648, 649 Andree v. Ward, 1 Russell Ch. 620.. 604, 641 Andress v. Weller, 3 N. J. Eq. 604.. 160 Andrew v. Andrew, 1 Ch. D. 410 1 .. 539 Andrews, Matter of, 162 N. Y. 1... 259 Andrews v. Andrews, 48 Miss. 220.. 225 Andrews v. Brumfield, 32 Miss. 107.. 500 Andrews v. Emmot, 2 Brown Ch. 297 504 Andrews v. Partington, 3 Brown Ch. 401 469, 475 Andrews v. Roye, 12 Rich. L. 536.. 547 Andrews v. Russell, 127 Ala. 195., 586 Andrews v. Sargent, 71 Vt. 257.. 655 Andrews v. Schoppe, 84 Me. 170. . 492, 517 Andrews' Estate, 92 Mich. 449 101 Angle v. Brosius, 43 Pa. St. 187. . 556, 557 Angus v. Noble, 73 Conn. 56 440, 441, 485, 541 Annable v. Patch, 3 Pick. 360... 400, 468, 553, 554 Annable, In goods of, 14 Jurist 402 154 Anonymous, 1 Dyer 74b 570 Anonymous, Freem. Ch. 206 534 Anshutz f. Miller, 81 Pa. St. 212.. 464 Anstey v. Dowsing, 2 Strange 1253. 205, 311 Appeal of, see name of party. Appel v. Byers, 98 Pa. St. 479... 437 Arbery v. Ashe, 1 Hagg. Ecc. 214.. 124 Arkell v. Fletcher, 10 Simons 299.. 503 Armant's Succession, 43 La. An. 310 257, 269 Armistead v. Dangerfleld, 3 Munf. 20 386, 477 Armitage v. Williams, 27 Beav. 346.. 473 Armstrong v. Williams, 27 Beav. 346 473 Armstrong v. Armstrong, 29 Ala. 538 257 Armstrong v. Armstrong, 63 Wis. 162 177 Armstrong v. Crapo, 72 Iowa 604 . . 425 Armstrong v. Douglass, 89 Tenn. 219 639 Armstrong v. Kent, 21 N. J. L. 509.. 547 Arnald v. Arnald, 1 Brown Ch. 401.. 369 Arnault v. Arnault, 52 N. J. Eq. 801 212 Arnett v. Arnett, 27 111. 247 233 Arnold v. Alden, 173 III. 229 445 Arnold v. Earle, 2 Lee 529 106 Arnot v. Arnot, 75 N. Y. App. Div. 230 472 Arrow v. Melllsh, 1 De Gex & Sm. 355 577 Ash v. Ash, 9 Ohio St. 383 383 Ashbrook v. Ryon, 2 Bush. 228....28, 29 Ashburner's Estate, 159 Pa. St. 545 488, 489 Ashburnham v. Bradshaw, 7 Mod. 239 404 Asher v. Whitlock, L. R. 1 Q. B. 1.. 82 Ashforth v. Bower, 3 Barn. & Ad. 453 508 Ashling v. Knowles, 3 Drew. 593 . . 479, 695 Ashmore, Goods of, 3 Curteis 756.. 298 Ashton v. Gt. Northern Ry. Co., 78 Minn. 201 543 Ashton's Estate, 134 Pa. St. 390.. 453 Ashworth v. Carleton, 12 Ohio St. 381 226 Ashworth v. Outram, L. R. 5 Ch. Div. 923 150 Askin's Estate, 20 D. C. 12 236, 237 Aspy v. Lewis, 152 Ind. 493 .... 582, 652, 659 Astley v. Essex, 18 Eq. Cas. 290 . . 628 Atkinson v. Morris, 1897 L. R. P. 40 345, 357 Atkinson v. Webb, 2 Vern. 478.. 739, 740 Atkyns v. Atkyns, 2 Cowper 808... 503 Atter v. Atkinson, L. R. 1 P. & D. 665 170, 174 Atterbury v. Strafford, 58 N. J. Eq. 186 437 TABLE OF CASES CITED. XI [references are to sections.] Attorney Gen. v. Andrews, 1 Ves. Sr. 225 . . . : 404 Atty. Gen. v. Bowyer, 3 Ves. 714.. 503 Attorney Gen. v. Downing, Dick- ens 414 404 Attorney Gen. v. Heartwell, Ambler 451 404 Atty. Gen. v. Jolly, 1 Rich. Eq. 99.. 439 Atty. Gen. v. Malkin, 2 Phillips 64.. 458 Atty. Gen. v. Sutton, 1 P. Wms. 753 642 Atty. Gen. v. Vigor, 8 Ves. 256.. 368, 369, 503 Attorney General v. Ward, 3 Ves. Jr. 327 329 Atwood, In re, 14 Utah 1 163 Atwood v. Weems, 99 U. S. 183.. 83, 84, 503 Augustus v. Seabolt, 3 Mete. 155.. 576 Austin v. Cambridgeport Parish, 21 Pick. 215 80 Austin v. Fielder, 40 Ark. 144 262 Austin v. Hyndman, 119 Mich. 615.. 542 Austin v. Oakes, 117 N. T. 577 338 Avery v. Everett, 110 N. T. 317.. 194 Avery v. Pixley, 4 Mass. 460 351 Ayer v. Estabrooks, 2 N. B. Eq. 392 528 Aylward v. Briggs, 145 Mo. 604... 178 Ayres v. Ayres, 43 N. J. Eq. 565 . . 285, 289, 305 Ayton v. Ayton, 1 Cox Ch. 326 475 Baacke v. Baacke, 50 Neb. 18 391 Babb v. Harrison, 9 Rich. Eq. 111.. 73 Backus v. Chapman, 111 Mass. 386.. 506 Backus v. Presbyterian Assn., 77 Md. 50 539, 597 Baer v. Forbes, 48 W. Va. 208..472, 451 Bailey v. Bailey, 35 Ala. 687 255 Bailey v. Bailey, 25 Mich. 185 . . 434, 450, 453 Bailey v. Bailey, 8 Ohio 239 408 Bailey v. Brown, 19 R. I. 669 661 Bailey v. Hoppin, i2 R. I. 560 80 Baily's Estate, 156 Pa. St. 634 735 Bain v. Lescher, 11 Sim. 397 552 Baker v. Baker, 202 111. 595 187 Baker v. Baker, 8 Gray 101 446 Baker v. Baker, 51 Ohio St. 217..68, 259 Baker v. Baker, 102 Wis. 226.. 187, 190 Baker v. Chastang, 18 Ala. 417 146 Baker v. Dening, 8 Ad. & El. 94 . . 255 Baker v. Dodson, 23 Tenn. 342 233 Baker v. Hacking. Cro. Car. 387. . 81 Baker v. Safe Dep. & T. Co., 93 U6. 368 717, 719, 720 Baker v. Smith, 66 N. Hamp. 422..22,. 43 Baker v. Story, 31 L. T. n. s. 631. . 338 Baker v. Tuoker, 3 H. I. Cas. 106. . 641 Baker's Appeal, 107 Pa. St. 381.. 249, 250, 259 Balch v. Pickering, 154 Mass. 363 . . 421, 665 Balcom v. Haynes, 14 Allen 204 . . 488 Baldwin v. Baldwin, 81 Va. 405 . . 303 Baldwin v. Morford,' 117 Iowa 72.. 536, 544 Baldwin v. Rogers, 3 DeG. M. & G. 649 476 Baldwin v. Sheldon, 48 Mich. 580. . 735, 736 Baldwin v. Spriggs, 65 Md. 373.. 375, 376, 377, 386 Baldwin v. Tucker, 61 N. J. Eq. 412 660, 677 Balgue v. Gold, Cro. Car. 473 514 Ball v. Ball, 40 La. Ann. 284 425 Ballantine v. Proudfoot, 62 Wis. 216 137 Ballard v. Camplin (1902, Ind. App.), 64 N. E. 931 674 Ballentine v. Foster, 128 Ala. 638.. 478, 486 Balliett v. Veal, 140 Mo. 187 494 Ballinger v. Connable, 100 Iowa 121 719 Balm v. Balm, 3 Sim. 492 475, 476 Bamfleld v. Popham, 1 P. Wms. 54.. 641 Bancroft v. Ives, 3 Gray 367 382 Bancroft v. Otis, 91 Ala. 279 191 Bangham, In re, L. R. 1 P. & D. 429 67 Bangs v. Parker, 71 Me. 458 506 Banks, In re, 87 Md. 425 572 Banks v. Banks, 65 Mo. 432 359 Banks v. Goodfellow, L. R. 52 B. 549 135 Bannatyne v. Bannatyne, 14 Eng. L. & Eq. 581 Ill Bannister v. Jackson, 45 , N. J. Eq. 702 Ill Banzer v. Banzer, 156 N. T. 429 . .. 494, 546 Barber v. Pittsburgh, &c, Ry., 166 U. S. 83 447, 451, 632, 637, 646, 651, 656 Barber's Trust, 1 Sim. & Gif. 118.. 471 Barclay v. Piatt, 170 111. 384 552 Barker v. Bell, 46 Ala. 216 361, 393 Barker v. Comins, 110 Mass. 477.. 156, 165, 168 Barker v. Pearce, 30 Pa. St. 173 . . 477 Barker's Appeal (1886, Pa.), 3 Atl. 377 659 Barkert v. Barkert, 86 Mo. App. 83.. 754 Barksdale v. Barksdale, 12 Leigh. 535 340 Barksdale v. Davis, 114 Ala. 623.. 354 Barksdale v. Hopkins, 23 Ga. 332. . 328 xn TABLE OF CASES CITED. [references are to sections.] Barksdale v. White, 28 Gratt. 224.. 494 Barlow v. Barnard, 51 N. J. Eq. 620 495, 496 Barlow v. Salter, 17 Ves. 479 649 Barnard v. Barlow, 50 N. J. Eq. 131 495 Barnardiston v. Carter, 3 Brown P. C. 64 558 Barnes v. Barnes, 66 Me. 286 177 Barnes v. Crowe, 1 Ves. Jr. 486.. 395 Barnes v. Greenzebach, 1 Ed. Ch. 41 443 Barnes v. Hanks, 55 Vt. 317 701 Barnes v. Marshall, 102 Mich. 248 . . 537, 546 Barnett v. Dickinson, 93 Md. 258 . . 626 Barnett v. Montgomery, 79 Ga. 727.. 609 Barnett's Appeal, 104 Pa. St. 342. . 682 Barnewall v. Murrell, 108 Ala. 366.. 248 Barney v. Allen, 125 N. Car. 314.. 289 Barney v. Hayes, 11 Mont. 571 . . . 300 Barney's Will, 70 Vt. 352 191 Barnum v. Mayor of Baltimore, 62 Md. 275 203, 439, 629 Barr v. Weaver, 132 Ala. 212. .459, 535 Barrett's Will, 111 Iowa 570 530, 540, 543 Barrlnger v. Cowan, 2 Jones Eq. 436 477 Barrow v. Greenough, 3 Ves. Jr. 152 173 Barry v. Batlin, 1 Curteis Ecc. 637.. 191 Barstow v. Black, L. E. 1 Scotch & Div. App. in H. L 392, 547 Bartholomew's Estate, 155 Pa. St. 314 665 Bartine v. Davis, 60 N. J. Eq. 202.. 683, 699, 719 Bartlett, petitioner, 163 Mass. 509.. 203 Bartlett v. Nye, 4 Mete. 378 439 Bartlett v. Patton, 33 W. Va. 71 . . 497, 533, 535 Basket v. Hassel, 107 U. S. 602.. ...'. 20, 30, 37 Baskin v. Baskin, 36 N. T. 416.. 273, 281 Bassett v. Granger, 100 Mass. 348.. 487 Bassett's Estate, 14 Eq. Cas. 54 . . 481 Batchelder, In re, 147 Mass. 465.. 458, 521 Bates, Petitioner, 159 Mass. 252.. 457 Bates v. Dewson, 128 Mass. 334.. 454, 576 Bates v. Gillett, 132 111. 287 446 Bates v. Officer, 70 Iowa 343 209 Battershy's Trust (1896), 1 L. R. Ir. 600 454 Battle v. Speight, 9 Ired. L. 288.. 405, 529 Bauskett v. Keitt, 22 S. Car. 187. . 357 v. Prescott, 79 Ky. 252 660 Bayley v. Bailey, 5 Cush. 245 68 Baylies v. Hamilton, 55 N. Y. S. 390 475 Beach v. Jersey, 1 Barn. & Aid. 550.. 509 Beak, In re, 13 Eq. Cas. 489 29 Beall v. Blake, 16 Ga. 119 712 Beall v. Cunningham, 3 B. Mon. 390. 396 Beall v. Shelly, 2 Gill 181 88 Beane v. Terby, 12 Gratt. 239 279 Beard v. Beard, 3 Atk. 72 370 Beard v. Knox, 5 Cal. 252 79 Beardsley v. Lacey, 78 L. T. 25 359 Beatty v. Lalor, 15 N. J. Eq. 108.. 499 Beaubien v. Cicotte, 12 Mich. 459 . . 187 Beauclerk v. Dormer, 2 Atk. 308 . . 649 Beaufort v. Dundonald, 2 Vera. 739.. 518 Beaumont v. Keim, 50 Mo. 28 363 Beaver v. Nowell, 25 Beav. 551 .... 556 Bedell v. Pradenburgh, 65 Minn. 361 508, 527 Bedford v. Bedford, 99 Ky. 273 203 Bedford's Appeal, 40 Pa. St. 18. . 431, 641 Beebe, In re, 6 Dem. Sur. 43 59 Beers v. Narramore, 61 Conn. 13 . . 464, 506 Behrens v. Behrens, 47 Ohio St. 323 356, 357 Beilstein v. Beilstein, 194 Pa. St. 152 495, 541 Bell v. Bell, 84 Ala. 64 101 Bell v. Hughes, L. R. 5 Ir. 407 299 Bell v. Scammon, 15 N. H. Am. 381 539, 633, 646 Bell County v. Alexander, 22 Tex. 351 200 Bell's Estate, 147 Pa. St. 389 470 Bell's Estate, 13 S. Dak. 475 356 Bellamy v. Peeler, 96 Ga. 468 234 Belledin v. Gooley, 157 Ind. 49 . . 209, 311 Belshaw v. Chitwood, 141 Ind. 377.. 371 Belt v. Belt, 1 H. & McH. 409 340 Belton v. Sumner, 31 Fla. 139 378 Bendall v. Bendall, 24 Ala. 295 . . 479, 671 Benesch v. Clark, 49 Md. 497. .536, 543 Benn v. Benn, 29 Ch. D. 839 665 Bennet v. Bennet, 10 Ch. D. 474 . . 726 Bennett v. Earl of Tankerville, 19 Ves. 170 368 Bennett v. Gaddis, 79 Ind. 347.... 370 Bennett v. Hibbert, 88 Iowa 154 . . 121 Bennett v. Hutchinson, 11 Kan. 398. 146 Bennett v. Packer, 70 Conn. 357. . 494, 497, 613 Bennett v. Sherrod, 3 Ired. L. 303 . . 357 Bennett v. Simon, 152 Ind. 490.. 614 TABLE OF CASES CITED. xill [references are to sections.] Bennett v. Van Riper, 47 N. J. Eq. 563 455 Bennett's Estate, 134 Cal. 320..413, 673 BenninghofC v. Evangelical A. C. • C, 28 Ind. App. 374 546 Benson, Matter of, 96 N. Y. 499.. 521, 671 Benson v. Corbln, 145 N. T. 351 . . 656 Benson v. Hall, 150 111. 60 495 Benton v. Benton, 63 N. H. 289 . . 492, 517 Bentz T. Maryland B. S., 86 Md. 102 \ 553 Berberet v. Berberet, 131 Mo. 399 . . 189, 287 Berkeley v. Palling, 1 Russell 496.. 481 Besant v. Cox, 6 Ch. D. 604 «. 653 Best v. Conn, 10 Bush. 36 665 Best v. Stonehewer, 34 Beav. 66 . . 446 Bethea v. Bethea, 116 Ala. 265... 486 Bethea v. Betbea, 48 S. Car. 440. . 639 Bethel v. Major (1902, Ky.), 68 S. W. 631 488 Bethell v. Moore, 2 D. & B. 311 359 Betts v. Betts, 113 Iowa 111 187 Betts v. Harper, 39 Ohio St. 639..70, 71 Betts v. Jackson, 6 Wend. 173 357 Beuhler's Appeal, 100 Pa. St. 385.. 699 Beurhaus v. Cole, 94 Wis. 617 203 Bevan v. Cooper, 72 N. T. 317 752 Bevelot v. Lestrode, 153 111. 625.. Ill Bibb d. Mole v. Thomas, 2 Wm. Bl. 1043 348, 350 Biddle v. Biddel, 36 Md. 630 233 Bigelow v. Gillott, 123 Mass. 102.. 358 Bigge v. Bensley, 1 Brown Ch. 187.. 649 Biggs v. McCarty, 86 Ind. 352 468, 477, 553, 554 Bilderback v. Boyce, 14 S. Car. 528.. 504 Bill v. Payne, 62 Conn. 140 668 Billings, Estate of, 64 Cal. 427 270 Billingsley v. Tongue, 9 Md. 575.. 677 Blllington v. Jones, 108 Tenn. 234 . . 321, 352 Bingel v. Volz, 142 111. 214.. 413, 516 Bingham's Appeal, 64 Pa. St. 345.. 309 Bird v. Jacobus, 113 Iowa 194.... 55 Bird v. Luekie, 8 Hare 301 471 Bird v. Pope, 73 Mich. 483 57 Bird's Estate, 132 Pa. St. 164.. 397, 722 Birdsall v. Hewlett, 1 Paige Ch. 32.. 670 Birks, In re (1900), 1 Ch. 417 445 Birmingham v. Lesan, 77 Me. 494 . . 599, 624 Birney v. Richardson, 5 Dana 424 . . 665 Birt, Goods of, L. R. 2 P. & D. 214.. 259 Bishop v. Bishop, 4 Hill 138 679 Bishop v. Curtis, 18 Q. B. 878 85 Bishop v. Wall, L. R. 3 Ch. Diy. 194 148, 150 BIssell, In re, 63 Neb. 585 211 Black v. Herring, 79 Md. 146. .413, 622 Black v. Hill, 32 Ohio St. 313 506 Black v. Jobllng, L. R. 1 P. & D. 685 346 Black v. Richards, 95 Ind. 184 . . 70, 71 Black's Estate, 132 Cal. 392 189 Blackborn v. Edgley, 1 P. Wms. 605 641 Blackbourn v. Tucker, 72 Miss. 735.. 404 Blackler v. Boott, 114 Mass. 24. 735, 736, 738 Blackler v. Webb, 2 P. Wms. 383 . . 488 Blackman v. Wadsworth, 65 Iowa 80 673 Blackmer's Estate, 66 Vt. 46 506 Blackwell v. Scouten, 199 Pa. St. 446 678 Blagge v. Miles, 1 Story 426 504 Blake v. Gibbs, 5 Russell Ch. 13 . . 505 Blake v. Hawkins, 98 U. S. 315... 504 Blake's Estate, 137 Cal. 429 259 Blakemore's Succession, 43 La. An. 845 343 Blanchard v. Blanchard, 32 Vt. 62.. 290, 344 Bland v. Bland, 90 Ky. 400 608, 609 Bland v. Lamb, 2 Jac. & Walk. 406.. 521 Blandin v. Blandin, 9 Vt. 210 389 Blankenbaker v. Snyder (1896, Ky.), 36 S. W. 1124 442 Blass v. Helms, 93 Tenn. 166 475 Blatchford v. Newberry, 99 111. 11 587, 576, 590, 660 Blazo v. Cochrane, 71 N. Hamp. 585 28, 35, 40 Bleckley, Goods of, L. R. 8 P. 169 . . 346 Blinston v. Warburton, 2 Kay & J. 400 539 Blisson v. West Shore Ry. Co., 143 N. T. 125 470, 485 Blower v. Morret, 2 Ves. Sr. 420. . 743 Blue v. Patterson, 21 N. Car. 457.. 172 Board v. Ladd, 26 Ohio St. 210... 668 Board of Comrs. Rush County v. Dinwiddie, 139 Ind. 128 203 Board of Comrs. v. Rogers, 55 Ind. 297 203 Board of Ed. Fairfield v. Ladd, 26 Ohio St. 210 467 Bobb, Succession of, 42 La. An. 40.. 336 Boddlngton, In re, 25 Ch. D. 685.. 436 Boehm's Goods, 16 P. 247 158 Bogan v. Swearingen, 199 111. 454 . . 24 Bogart, Matter of, 43 N. T. App. Div. 582 203 Boggs v. Boggs, 62 Neb. 274 176, 177, 189 Bohanon v. Walcott, 1 How. 336. . 351, 354, 361 XIV TABLE OF CASES CITED. [references are to sections.] Boisseau v. Aldridges, 5 Leigh. 222. 497 Boles t. Caudle, 126 N. Car. 352.. 495 Bolles v. Harris, 34 Ohio St. 38 . . 229, 237 Bolles v. Smith, 39 Conn. 217 479 Boiling v. Boiling, 88 Va. 524 409 Bollinger v. Knox (1902, Neb.), 92 N. W. 994 684 Bolman v. Overall, 80 Ala. 451.. 52, 57 Bolton, In re, 4 L. R. 31 Ch. Div. 542 212 Bolton, Goods of, L. R. 12 P. 202 . . 331 Bond v. Seawell, 3 Burr. 1773. .248, 278 Bone v. Cook (1824), McCleland 168 683 Bonner v. Bonner, 28 Ind. App. 147 551 Boofter v. Rogers, 9 Gill. 44 225 Boomhower v. Babbitt, .67 Vt. 327. . 707 Boone v. Lewis, 103 N. Car. 40 . . 208, 210, 294 Booth, Matter of, 127 N. Y. 109.. 257 Booth v. Baptist Church, 126 N. T. 215 249 Booth v. Vikars, 1 Coll. Ch. 6 485 Booth's Will, 40 Ore. 154 374 Boraston's Case, 3 Coke 19a. .583, 586 Boreham v. Bignall, 8 Hare 131 464 Borgner v. Brown, 133 Ind. 391 695 Born v. Horstmann, 80 Cal. 452... 212 Borneman v. Sidlinger, 15 Me. 429 . . 42 Bostick v. Blades, 59 Md. 231. .602, 612 Boston S. D. & T. Co. v. Coffin, 152 Mass. 95 421, 495, 496 Boston S. D. & T. Co. v. Stich, 61 Kan. 474 494, 540 Boudenot v. Bradfore, 2 Dall. 266.. 362 Boughton v. Knight, L. R. 3 P. & D. 64 122, 123 Boughton v. West, 8 Ga. 248 553 Bourke v. Boone, 94 Md. 472 496, 497, 508, 527 Bourke v. Wilson, 38 La. An. 320 . . 283 Boutelle f. City Sav. Bank, .17 R. I. 781 539 Bouthemy v. Dreux, 12 Martin 639.. 285 Bouts v. Ellis, 4 DeG. M. & G. 249.. 29 Bowdwitch v. Andrew, 8 Allen 339. 454 Bowen v. Bowen, 87 Va. 438 545 Bowen v. Evans, 70 Iowa 368 738 Bowen v. Hoxie, 137 Mass. 527 386 Bowen v. Johnson, 6 Ind. 110 371 Bowen v. Swanders, 121 Ind. 164.. 541 Bower v. Bower, 5 Wash. 225 1163 Bowerman v. Sissel, 191 111. 651 . . 535, 537 Bowers v. Bowers, 53 Ind. 430 378 Bowker v. Bowker, 148 Mass. 198 . . 430, 442, 693 Bowman, In re, 41 Ch. D. 525 665 Boyd v. Cook, 3 Leigh. 32 276, 344 Boyd's Estate, 199 Pa. St. 487 450 Boyes v. Cook, 14 Ch. D. 53 504 Boyeus, Matter of, 23 Iowa 354 . . . 286 Boykin v. Ancrum, 28 S. Car. 486. . 551 Boylan v. Meeker, 28 N. J. 274 326 Boyle v. Boyle, 158 111. 228 356 Boyse v. Rossborough, 6 H. L. Cas. 2 187 Bracken v. Bentley, 1 Rep. Ch. 59. . 534 Braddock, Goods of, L. R. 1 P. D. 433 248, 297 Bradenburg v. Bardin, 36 S. Car. 197 400 Bradford v. Belfleld, 2 Simons 264.. 539 Bradford v. Bradford, 19 Ohio St. 546 619, 620 Bradish v. Gibbs, 3 Johns Ch. 523 . . 150 Bradish v. McClellan, 100 Pa. St. 607 67, 330 Bradlee v. Andrews, 137 Mass. 50.. 454 Bradley v. Bradley, 24 Mo. 311 163 Bradley v. Carnes, 94 Tenn. 27..544, 545 Bradley v. Cartwright, L. R. 2 C. P. 511 559 Bradley v. Peixoto, 3 Ves. 324 607 Bradley v. Rees, 113 111. 327.. 437, 482 Bradley v. Richardson, 62 S. Car. 494 : 665 Bradley's Estate, 166 Pa. St. 300. . 676 Bradley's Will, 73 Vt. 253.. .514, 712, 714 Bradshaw v. Ellis, 2 Dev. & Bat. 20 : . . 506 Bradstreet v. Supervisors, 13 Wend. 546 140 Brady v. Brady, 78 Md. 461 711, 712 Bramell v. Adams, 146 Mo. 70. .536, 674 Bramball v.. Ferris, 14 N. T. 41 . . . . 608 Brandon v. Brandon, 3 Swanst. 312. 456 Brandon v. Robinson, 18 Ves. 429. . 608 Branson v. Hill, 31 Md. 181 659 Brasher v. Marsh, 15 Ohio St. 103.. 416 Brattle Square Church v. Grant, 3 Gray 142 573, 600, 601, 610, 632 Bray v. Pullen, 84 Me. 185 676, 677 Brayfield v. Brayfleld, 3 H. & J. 208 230 Breathitt v. Whittaker, 8 B. Mon. 530 340 Breckinridge v. Breckinridge, 89 Va. 561 699, 719 Breed v. Pratt, 18 Pick. 115 191 Brenchley v. Lynn, 2 Rob. 441 68 Brenchley v. Still, 2 Rob. 162 68 Brent v. Washington, 18 Gratt. 526 457, 472, 683 Bresee v. Stiles, 22 Wis. 120 387 Brett v. Donaghe (1903, Va.), 45 S. E. 324 431, 442, 454 Brewster v. Bull, 10 Johns. 19.... 547 TABLE OF CASES CITED. XV, [references are to sections.] Brewster v. McCall, 15 Conn. 274 . . 436, 439, 529 Briant v. Garrison, 150 Mo. 655 . . 514 Brice v. Horner (1896, Tenn. Ch.), 38 S. W. 440 682 Bridge v. Bridge, 146 Mass. 373.. 506 Bridger, In re (1894), 1 Ch. D. 297.. 404 Bridger v. Bamsey, 10 Hare 311.. 642 Bridges v. Pleasants, 4 Ired. Eq. 26 439 Bridgman v. Dove, 3 Atk. 201 498 Bridgwater v. Bolton, 3 Salk. 315 . . 369 Bridwell v. Swank, 84 Mo. 544 191. Briggs v. Briggs, 69 Iowa 617. .524, 526 Briggs v. Shaw, 9 Allen 516 651 Briggs v. Walker, 171 U. S. 466... 457 Brigham v. Kenyon, 76 Fed. Rep. 30 213 Brightman v. Brightman, 100 Mass. 238 665 Brill v. Wright, 112 N. T. 129. .748, 749 Brimmer v. Sohier, 1 Cush. 118.. 524, 660 Brinkerhoff v. Farias, 65 N. T. S. 358 498 Bristol v. Ontario O. S., 60 Conn. 472 437 Britton v. Miller, 63 N. Car. 268. . 476 Britton v. Thornton, 112 U. S. 526.. 653 Broadway Nat. Bank v. Adams, 133 Mass. 170 609 Brokaw v. Hudson, 27 N. J. Eq. 135 682 Brombacher v. Berking, 56 N. J. Eq. 251 540, 541 Bromley v. Mitchell, 155 Mass. 509. 73, 75 Bromley's Estate, 113 Mich. 53 191 Bronson v. Henry, 140 Ind. 455 .... 35 Brook v. Chappell, 34 Wis. 405 326 Brook v. Warde, 3 Dyer 310b 321 Brooke v. Turner, 7 Simons 671.. 517 Brooke v. Warwick, 2 De Gex & Smale 425 518 Brooking v. White, 2 Wm. Bl. 1010.. 451 Brooks v. Belfast, 90 Me. 318 668 Brooks v. Kip, 54 N. J. Eq. 462..80, 539 Brooks v. Woodson, 87 Ga. 379... 292 Brooks's Will, 125 N. Car. 136 540 Broome v. Monck, 10 Ves. 597... 84, 503 Brothers v. Cartwright, 2 Jones Eq. 133 ...: 452 Brown v. Addison Gilbert Hosp., 155 Mass. 323 !575, 632, 637 Brown v. Beaver, 3 Jones L. 516.. 271 Brown v. Brown, 18 Conn. 410. ... 28 Brown V. Brown, 8 El. & Bl. 876. . 328, 337, 356 Brown v. Brown, 97 Ga. 531 555 Brown v. Brown, 137 Mass. 539 699 Brown v. Brown, 43 N. Ham. 17.. 576 Brown v. Bryant, 17 Tex. Civ. App. 454 551 Brown v. Carroll, 36 Ga. 568 208 Brown v. Clark, 77 N. Y. 369. .374, 396 Browne v. Hammond, Johns Ch. 210 676 Brown v. Knapp, 79 N. T. 136 750 Brown v. Llpp'incott, 49 N. J. Eq. 44 651, 660 Brown v. Moore, 14 Tenn. 272 .... 171 Brown v. Pridgen, 56 Tex. 124.. 80, 310 Brown v. Eiggin, 94 111. 560 396 Brown v. Sackville, 1 Dyer 72a 217 Brown v. Scherrer, 5 Col. App. 255.. 378 Brown v. Selwin, Cas. T. Talb. 240.. 735 Brown v. ""Thompson, 1 Eq. Cas. Abr. 413 375 Brown v. Thorndyke, 15 Pick. 388.. 321, 330 Brown v. Ward, 53 Md. 376 129 Brown's Estate, 86 Me. 572 479 Brown's Matter, 154 N. Y. 313 478, 581, 590 Brown's Matter, 66 How. Pr. 289 . . 208 Brown's Will, 1 B. Mon. 56 358 Browning v. Southworth, 71 Conn. 224 536 Brownrigg v. Pike, L. E. 7 P. D. 61.. 68 Bruce v. Bissell, 119 Ind. 525 494 Bruce v. Goodbar, 104 Tenn. 638.. 478, 530, 665 Bruce v. Howe, 19 W. E. 116 518 Bruce v. Moon, 57 S. Car. 60 53, 57 Bruch's Estate, 185 Pa. St. 194 . . 576, 602 Bruck v. Tucker, 32 Cal. 426 371 Bruen v. Bragaw, 4 N. J. Eq. 261 . . 88 Brunker v. Cook, 11 Mod. 121 88 Brunson v. Henry, 140 Ind. 455 .... 21 Brunt v. Brunt, L. R. 3 P. & D. 37.. 355 Brush v. Brush, 11 Ohio 287 371 Brush v. Wilkins, 4 Johns Ch. 506.. ...375, 377, 378 Brush, Matter of, 35 Misc. 689.. 128, 131 Bryan v. Mansion, 5 DeGex & Sm. 737 641 Bryan v. Milby, 6 Del. Ch. 208. . 494 Bryan's Trusts, 2 Simons Ch. (n. s.) 103 464 Bryant v. Pierce, 95 Wis. 331 190 Bryant v. Thompson, 59 Hun 545 . . 619, 622 Bryce, Goods of, 2 Curt. 325 255 Bryne v. Bryne, 3 S. & R. 54 740 Bryson v. Davidson, 1 Murphey 143 649 Bryson v. Holbrook, 159 Mass. 280.. 682 Buchanan v. Buchanan, 99 N. Car. 308 639, <}53 XVI TABLE OF CASES CITED. [references are to sections.] Buchanan v. Lloyd, 64 Md. 306 701 Buchanan v. Lloyd, 88 Md. 642 ... 754 Buchanan v. Turner, 26 Md. 1..149, 150 Buckingham y. Morrison, 136 111. 437 534 Buckley v. Gerard, 123 Mass. 8..163, 387 Budd v. Haines, 52 N. J. Eq. 488.. 475 Budlong, Matter of, 126 N. Y. 423.. 170 Buecker v. Carr, 60 N. J. Eq. 300. . 26 Buffar v. Bradford, 2 Atkins 220.. 553 Buffum v. Town Council, 16 R. I. 643 503 Bull v. Kentucky Nat. Bank, 90 Ky. 452 608 Bullard v. Shirley, 153 Mass. 559.. 203 Bullerdick v. Wright, 148 Ind. 477.. 504 Bullmer v. Jay, 4 Simons 48 458 Bnlmer's Estate, 59 Cal. 131 200 Bullmore, In re, 22 Ch. D. 619 465 Bullock v. Downes, 9 H. L. Cas. 1.. 471 Bullock v. Stones, 2 Ves. Sr. 521 . . 473 Bunch v. Nicks, 50 Ark. 367 73 Bundy v. Knight, 48 Ind. 502 289 Bunn v. Markham, 7 Taunt. 224 . . 27 Burbank v. Whitney, 24 Pick. 146.. 547 Burdine v. Burdine, 98 Va. 515 . . 57 Burdis v. Burdis, 96 Va. 81..595, 596, 623 Bnrge v. Hamilton, 72 Ga. 568.... 396 Burger v. Hill, 1 Brad. 360 170 Burke v. Annis, 11 Hare 232 539 Burke v. Stiles, 65 N. Ham. 163 . . 521 Burke v. Wilder, 1 McCord 551 477 Burke's Succession, 51 La. 538.... 64 Burkett v. Whittemore, 36 S. Car. 428 148, 151, 405, 504 Burleigh v. Clough, 52 N. Ham. 267- 536, 543, 546 Burlington University v. Barrett, 22 Iowa 60 73 Burney v. Allen, 125 N. Car. 314.. 305 Burnham v. Burnham, 79 Wis. 557 595, 627 Burnham v. Comfort, 108 N. T. 535 326, 716, 728 Burnham v. Porter, 24 N. Hamp. 570 248 Burns y. Allen, 93 Tenn. 149 .... 163, 386, 387 Burns v. Burns, 4 S. & E. 295 355 Burns v. Smith, 21 Mont. 251.. 53, 55 Burns v. Travis, 117 Ind. 44 328 Burnsall v. Davy, 1 Bos. & Pul. 215 556 Burnsden v. Woolridge, 1 Dick. 380 455 Burr v. Smith, 7 Vt. 241 439 Burridge v. Bradyl, 1 P. Wms. 127.. 743 Burrough v. Poster, 6 R. I. 534 . . 632, 648 Burrows, In re (1895), 2 Ch. Div. 497 193 Burtenshaw v. Gilbert, 1 Cowper 49 345, 361 Burton v. Black, 30 Ga. 638 633 Burton v. Brown (1898, Miss.), 25 South. 61 294 Bush v. Lisle, 89 Ky. 393 179 Butler & Baker's Case, 3 Coke 25. . 217 Butler v. Butler, 28 Ch. D. 66 503 Butler v. Love, 10 Sim. 317 474 Butler v. Ralston, 69 Ga. 485 552 Butler v. Stratton, 3 Brown Ch. 367 446 Butter v. Ommaney, 4 Rus. Ch. 70.. 554 Butter's Will, 110 Wis. 70 178 Buzby v. Roberts, 53 N. J. Eq. 566 684 Byard v. Conover, 39 N. J. Eq. 244.. 187 Byers v. Hoppe, 61 Md. 206 .... 59, 60 Byng v. Byng, 10 H. L. Cas. 171. . 553 Byrd, Goods of, 3 Curteis, 117 292 Byrn v. Godfrey, 4 Ves. 6 173 Byrn v. Kleas, 15 Tex. Civ. App. 203 515 Byrne v. Hume, 86 Mich. 546 707 Byrnes v. Stilwell, 103 N. T. 453.. 582, 587 Byrom v. Brandreth, L. R. 16 Eq. Cas. 475 499 Cadogan, In re, 25 Ch. D. 154 499 Cadogan v. Ewart, 7 Ad. & El. 636. 635, 648, 583, 574 Cady v. Cady, 67 Miss. 425 670 Caeman v. Van Harke, 33 Kan. 333 337, 357 Cain v. Moon (1896), 2 Q. B. Div. 283 26 Cain v. Robertson, 27 Ind. App. 198 536 Caldecott v. Johnson, 7 Man. & G. 1047 504 Caldwell v. Renfrew, 33 Vt. 213 31 Calham v. Smith (1895), 1 Ch. D. 516 740 Call v. Shewmaker (1902, Ky.), 69 S. W. 749 540 Callaghan's Estate, 119 Cal. 571... : 162, 386 Callanan v. Clement, 18 Misc. 621.28, 31 Calvin V. Free (1903, Kan.), 71 Pac. 823 30, 35 Cambridge v. Rous, 8 Ves. 12 650 Camp v. Clark, 81% Pa. St. 235.. 400 Camp v. Shaw, 160 111. 425 29 Camp v. Stark, 81% Pa. St. 235... 311 Camp's Estate, 134 Cal. 233 269 Campbell, Matter of, 170 N. Y. 84. 395, 396 Campbell v. Barrera (1895, Tex. Civ. App.), 32 S. W. 724 396 TABLE OF CASES CITED. XVII [references are to sections.] Campbell v. Campbell, 21 Mich. 438. 226 Campbell v. Carlisle, 162 Mo. 634. 175, 179, 190 Campbell v. Foster, 35 N. Y. 361 . . 609 Campbell v. French, 3 Ves. Jr. 321. 329 Campbell y. Harding, 2 Euss. & M. 390 637, 641 Campbell v. Logan, 2 Brad. Sur. 90. 299 Campbell v. Prescott, 15 Ves. 500a. 502 Campbell v. Eawdon, 18 N. Y. 412.. 451 Campbell v. Stokes, 142 N. Y. 23.. 476 Campbell's Estate, 202 Pa. St. 459.. 684 Canada's Appeal, 47 Conn. 450.156, 279 Canfleld v. Bostwlck, 21 Conn. 550 ' 87, 88, 524 Canfleld v. Canfleld, 62 N. J. Eq. 578 521, 671 Canfleld v. Crandall, 4 Dem. Sur. Ill 328 Canfleld v. Fallon, 43 N. Y. App. Div. 561 451 Cannon v. Rucastle, 8 C. B. 876 557 Card v. Grinman, 5 Conn. 164.. 321, 343 Careless y. Careless, 19 Ves. 601... 438 Carey v. Goodinge, 3 Brown Ch. 110 735 Carey's Appeal, 75 Pa. St. 201 405 Carey's Estate, In re, 49 Vt. 236.. 144, 146, 147, 373 Carl's Appeal, 106 Pa. St. 635 397 Carleton v. Griffin, 1 Burr. 549..296, 396 Carlton v. Carlton, 40 N. Hamp. 14 310, 312, 316 Carmichael v. Carmichael, 72 Mich. 76 53, 57 Carmichael v. Lathrop, 108 Mich. 473. .716, 721, 725, 728, 729, 731, 733 Carnagy v. Woodcock, 2 Munf. 234 432, 493, 498 Caroll v. Bonham, 42 N. J. Eq. 625.. 234 Carpenter y. Bell, 96 Tenn. 294 408 Carpenter v. Bott, 15 Simons, 606. . 455 Carpenter v. Hazelrigg, 103 Ky. 538 659 Carpenter v. Miller, 3 W. Va. 174. 328, 338, 439 Carpenter v. Snow, 117 Mich. 489.. 387 Carpenter v. Soule, 88 N. Y. 251... 716 Carpenter v. Van Olinder, 127 111. 42 551 Carr v. Estill, 16 B. Mon. 309 552 Carroll v. Carroll, 20 Tex. 731 442 Carroll v. Hause, 48 N. J. Eq. 269.. 190 Carroll's Succession, 28 La. An. 388 287 Carson v. Carson, 1 Mete. 300 675 Carstensen's Estate, 196 Pa. St. 325 583 Carter, In re (1900), 1 Ch. D. 801.. 506 Carter v. Gray, 58 N. J. Eq. 411. . . 749 | Carter v. Seaton, 85 Law Times 76.. 306 Carter v. Thomas, 4 Me. 341 369 Carthew v. Euraght, 26 L. T. 834.. 481 Cartwright v. Cartwright, 1 Phil- lim. 90 123, 124, 134 Case, Matter of, 4 Dem. Sur. 124 .. . 295 Case v. Young, 3 Minn. 209 163 Casement v. Fulton, 5 Moore P. C. 130 290 Casey y. Lockwood (1902, E. 1,\, 52 Atl. 803 457 Cash v. Lust, 142 Mo. 630 189 Casper v. Walker, 33 N. J. Eq. 35 596, 626 Cassem v. Kennedy, 147 111. 660... 627 Casson v. Dade, 1 Bro. Ch. 99 303 Cathey v. Cathey, 9 Humph. 470. . . 504 Catlett y. Catlett, 55 Mo. 330.. 253, 257 Caulfield v. Sullivan, 85 N. Y. 153. 245 Cavarly's Estate, 119 Cal. 406 445 Caye v. Holford, 3 Ves. 650 368 Cawley's Estate, 136 Pa. St. 628.. 51, 52, 70, 72 Cawthorn, In re Goods of, 3 Sw. & Tr. 417 66 Caylor y. Caylor, 22 Ind. App. 666. 31 Chace v. Lamphere, 148 N. Y. 206.. 506, 507, 509 Chaddick y. Haley, 81 Tex. 617 185 Chadwick v. Tatem, 9 Mont. 354... 371 Chaffee v. Baptist M. C, 10 Paige Ch. 85 287 Chamberlain y. Chamberlain, 43 N. Y. 424 199 Chamberlaine v. Turner, Cro. Car. 129 509 Chambers v. Higgins (1899, Ky.), 49 S. W. 436 439 Chambers v. McDaniel, 6 Ired. L. 226 250 Chambers v. Shaw, 52 Mich. 18 193 Chambers y. Watson, 56 Iowa, 676. 159 Chamney, Goods of, 1 Bob. Ecc. 757 296 Champion, In re, 1 Ch. 101 (1893). 397 Champney v. Blanchard, 39 N. Y. "1 28 Chancey's Case, 1 P. Wms. 408..739, 740 Channell v. Aldlnger (1903, Iowa), 96 N. W. 781 547 Chant v. Lemon (1900), 2 Ch. D. 345 604 Chapin v. Cooke, 73 Conn. 72 612 Chapin v. Parker, 157 Mass. 63 . . . 336 Chaplin v. Doty, 60 Vt. 712., 656 Chapman v. BHssett, Cas, Tem. Tal- bot 145 473 Chapman v. Chick, 81 Me. 109..500, 501 Chapman ?. Dismer, 14 App. D. C. 446 873 XV111 TABLE OF CASES CITED. [references are to sections.] Chapman v. Hart, 1 Ves. Sr. 271... 503, 518 Chappell v. Missionary Soc, 3 Ind. App. 356 437 Charch v. Charch, 57 Ohio St. 561.. 437 Charge v. Goodyer, 3 Russell Ch. 140 444 Charles v. Huber, 78 Pa. St. 448.. 393, 394 Charlton v. Miller, 27 Ohio St. 298. 391 Charter v. Charter, L. E. 7 H. L. 364 437 Chase v. Chase, 2 Allen 101 454 Chase v. Howie, 64 Kan. 320 533 Chase v. Kittredge, 11 Allen 49 304 Chase v. Ladd, 153 Mass. 126 546 Chase y. Lockerman, 11 Gill. & J. 185 467 Chase v. Peckham, 17 R. I. 385 479 Chase v. Redding, 13 Gray 418 .... 42 Chase v. Stockett, 72 Md. 235 498 Chassaing v. Durand, 85 Md. 420. .. 458 Chasy v. Gowdy, 43 N. J. Eq. 95...- 457, 683 Cheairs v. Smith, 37 Miss. 646 669 Cheatham v. Gower, 94 Va. 383.475, 659 Cheatham v. Hatcher, 30 Gratt. 56.. 289 Cheever v. North, 106 Mich. 390... 333, 356, 361 Cheese v. Lovejoy, L. R. 2 P. D. 251 343, 354 Chenault v. Chenault, 88 Ky. 83. . . 677 Cheney v. Selman, 71 Ga. 384. . .676, 677 Chester v. Chester, Fitzg. 150 503 Chew's Appeal, 37 Pa. St. 23 555 Chew's Appeal, 45 Pa. St. 228..620, 622 Chicago, B. & Q. Ry. v. Wasserman, 22 Fed. Rep. 872 387 Chilcot v. Bromley, 12 Ves. 114... 460 Childers v. Logan (1901, Ky.), 65 S. W. 124 553 Chism v. Williams, 29 Mo. 288 649 Cholmondeley v. Ashburton, 6 Beav. 86 456 Christian, Goods of, 2 Rob. Ecc. 110 298 Christmas v. Whinyates, 3 Sw. & Tr. 81 356 Christopher v. Christopher, 2 Dick- ens 445 366, 375 Christy v. Badger, 72 Iowa, 581..'.. 508 Christy v. Commrs. of Ashtabula Co., 41 Ohio St. 711 206 Church v. Church, 15 R. I. 138..479, 671 Church v. Warren, 14 R. I. 539 526 Churchill v. Churchill (1902, Ky.), 67 S. W. 265 510 Churchill v. Churchill, L. R. 5 Eq. Cas. 44 338 Chwatal v. Schreiner, 148 N. Y. 683 445 Cilley v. Cilley, 34 Me. 162 276 Claflin v. Ashton, 128 Mass, 441... 425 Claflin's Will, 73 Vt. 129 273, 279 Claflin's Will (1902, Vt), 52 Atl. 1053 279, 282, 290 Clanton v. Estes, 77 Ga. 352 659 Clapp v. Fullerton, 34 N. Y. 190... 131 Clark, Goods of, 2 Curteis 329 265 Clark, In re, 38 Misc. 617 664 Clark v. Cammann, 160 N. T. 315.. 457 Clark v. Clark (1902, N. J. Eq.), 52 Atl. 225 . 285, 290 Clark v. Clark, 54 Vt. 489 208 Clark v. Eborn, 2 Murphey 234 321 Clark v. Fisher, 1 Paige Ch. 171 170 Clark v. Jetton, 5 Sneed 229.-728, 729 Clark v. Mosely, 1 Rich. Eq. 396 . . . 451 Clark v. Sewell, 3 Atk. 96 740 Clark's Will (1900, ' N. J. Eq.), 52 Atl. 222 290 Clarke v. Bogardus, 12 Wend. 67. . 735, 738 Clarke v. Boorman, 18 Wall. 493... 416 Clarke v. Cotton, 2 Dev. Eq. 301 . . . 521 Clarke v. Ransom, 50 Cal. 595.... 60, 62, 336 Clarke's Appeal, 70 Conn. 195 408 Clarke's Estate,. 82 Pa. St. 528 523 Clarke's Estate, 3 DeGex J. & S. Ill 661 Clarkson v. Clarkson, 2 Sw. & Tr. 497 359 Clarkson v. Clarkson, 8 Bush. 655.. 163 Claverly v. Claverly, 124 Mass. 314. 506 Clay v. Chenault, 108 Ky. 77... 540, 547 Clayson's Will, 24 Ore. 542 408 Clayton v. Hallett (1902, Col.), 70 Pac. 429 526 Clayton v. Liverman, 19 N. Car. 558 (2 Dev. & Bal. L. 558)... 51a, 70 Cleaver v. Cleaver, 39 Wis. 96 674 Clements v. Horn, 44 N. J. Eq. 595.. 369 Clendening v. Clymer, 17 Ind. 155.. 731 Clere's Case, 6 Coke 17b 504 Cleveland v. Havens, 13 N. J. Eq. 101 531 Cliff's Trusts (1892), 2 Ch. Div. 229 245 Cliffe v. Kadwell, 2 Ld. Raym. 1324 500 Clifford v. Coe, 5 App. Cas. 447 552 CMngan v. Mitcheltree, 31 Pa. St. *5 344 Clotilde v. Lutz, 157 Mo. 439. ..750, 751 Cloud v. Clinklnbeard, 8 B. Mon. 397 739, 740 Clough v. Clough, 117 Mass. 83 ... . 31 Clough v. Clough, 71 N. Ham. 412.. 603 TABLE OF CASES CITED. XIX [references are to sections.] Clowdsley v. Pelham, 1 Vera. Ch. 411 750 Cobb v. Denton, 65 Tenn. 235 439 Coffin v. Coffin, 23 N. Y. 9.. 187, 285, 289 Coffin v. Otis, 11 Mete. 157 331, 336 Coffman v. Coffman, 85 Va. 459.. 60, 497 Cogan t. McCabe, 23 N. Y. Misc. 739 464 Coggeshall v. Home for Children, 18 R. I. 696 199 Coggins v. Flythe, 113 N. Car. 102.. 467 Coggins's Appeal, 124 Pa. St. 10.. . 478, 587 Coghill v. Kennedy, 119 Ala. 641. .. 171 Colby v. Dean, 70 N. Ham. 591 603 Colcord v. Conroy, 40 Fla. 97 373 Cole v. Covington, 86 N. Car. 295 . . 738 Cole v. Creyon, 1 Hill Ch. 311 488 Cole v. Goble, 13 C. B. 445 637 Cole v. Mordaunt, 4 Ves. 196 218 Cole's Will, 49 Wis. 181 131 Cole's Will (1900, N. J. Eq.), 47 Atl. 385 281, 282 Coleman v. Bberly, 76 Pa. St. 197. . 510 Coleman v. O'Leary (1902, Ky.), 70 S. W. 1068 196, 400 Coley v. Ballance, 2 Winst. 89 479 Collagan v. Burns, 57 Me. 449. ..356, 357 Colleton v. Garth, 6 Simons Ch. 19. 518 Collier v. Rutledge, 136 N. Y. 621 . . 55 Collington v. Pace, 1 Ventr. 413. .. 456 Collins, Matter of, 5 Redf. Sur. 20.. 297 Collins v. Brasill, 63 Iowa 434. . . . 191 Collins v. Burge (1898, Ky.), 47 S. W. 444 540 Collins v. Collins, 11 Iowa 703 656 Collins v. Feather, 52 W. Va. 107. . 488 Collins v. Townley, 21 N. J. Eq. 353 HI Collins v. Wickwire, 162 Mass. 143 : 543, 547 Collison v. Girling, 4 Mylne & Cr. 63 503 Collyer v. Collyer, 110 N. Y. 481... 356, 357 Colton v. Colton, 127 TJ. S. 300 428 Coltsmann v. Coltsmann, L. R. 3 H. L. Rep. 121 649 Colvin v. Fraser, 2 Hagg. 266 345 Colvin v. Warford, 20 Md. 357.328, 362 Comassi, In re, 107 Cal. 1 374, 385 Combs v. Combs, 67 Md. 11 545, 546, 547 Combs v. Jelly, 3 N. J. Eq. 625 273 Combs' Appeal, 105 Pa. St. 155 210 Comer v. Comer, 120 111. 420 60 Comfort v. Mather, 2 W. & S. 450.. 668 Commonwealth v. Hackett, 102 Pa. St. 505 500 Commonwealth v. Stauffer, 10 Pa. St. 350 612 Compton v. Mitton, 7 Halst. 70.273, 298 Comstock v. Hadlyme, 8 Conn. 254. 160 Condict v. King, 13 N. J. Eq. 375.. 699, 702 Conger v. Lowe, 124 Ind. 368 607 Congregational Church v. Benedict, 59 N. J. Eq. 136 756 Congregational C. B. S. v. Everett, 85 Md. 79 409 Congreve v. Palmer, 16 Beavan 435. 692 Connecticut T. & S. D. Co. v. Chase, 75 Conn. 683 369, 710, 712 Connecticut T. & S. D. Co. v. Hol- lister, 74 Conn. 228 457, 485 Connelly v. O'Brien, 166 N. Y. 406.. 478 Conner v. Root, 11 Col. 183. ...... 28 Conrad v. Douglas, 59 Minn. 498 ... 73 Conrad v. Long, 33 Mich. 78 212 Conser v. Snowden, 54 Md. 175.. 20, 40 Converse v. Converse, 21 Vt. 168.. Ill, 112 Convey's Will, 52 Iowa 197 273 Conway, Matter of, 124 N. Y. 455 . . 259 Conway's Estate, 181 Pa. St. 156.. 461 Conyngham v. Conyngham, 1 Ves. Sr. 522 541 Cooch v. Cooch, 5 Houston, 540. . . . 705, 706, 741, 747 Coogan v. Hayden, 4 L. R. Ir. 585 . . 461 Cook v. Collier (1901, Tenn. Ch. App.), 62 S. W. 658 535 Cook v. Cook, 2 Vern. Ch. 545 445, 468, 476 Cook v. Lambert, 3 Sw. & Tr. 46... 248 Cook v. Lanning, 40 N. J. Eq. 369 . . 670 Cook v. McDowell, 52 N. J. Eq. 351 584, 590 Cook v. Munn, 65 How. Pr. 514 675 Cook v. Parsons, Finch's Prec. Ch. 184 273 Cook v. Winchester, 81 Mich. 581 . . . 306 Cooke v. Bucklin, 18 R. I. 666. . . . 531, 634, 637 Cooke v. Turner, 15 Mses! & W. 727 619 Cooksey v. Hill, 106 Ky. 297 655 Coombs, Goods of, L. R. 1 P. & D. 302 259 Cooper, In re, 1 Deane 9 67 Cooper v. Bockett, 3 Curt. 648 292 Cooper v. Cooper, 7 Houst. 488 .... 665 Cooper v. Day, 3 Meriv. 154 699 Cooper v. Haines, 70 Md. 282 504 Cooper v. Pogue, 92 Pa. St. 254 .. . 540 Cooper v. Remsen, 5 Johns Ch. 459.. 212 Cooper's Estate, 4 Pa. St. 88 389 Coppage v. Alexander, 2 B. Mon. 313 602, 612 XX TABLE OF CASES CITED. [references ake to sections.] Corby v. Durfee, 96 Mich. 11 172 Corbyn v. French, 4 Ves. 418 683 Corker v. Corker, 87 Cal. 643 . . 380, 391 Corle v. Monkhouse, 47 N. J. Eq. 73. 534 Corle's Case, 61 N. J. Eq. 409 439 Cornell v. Lovett, 35 Pa. St. 100 .. . 612 Cornell's Will, 43 App. Div. 241 Cornell Univ. v. Fiske, 136 U. 152' Cornewall v. Cornewall, 12 Simons 298 Corporation of Bridgnorth v. Col lins, 11 Simon Ch. 538 Corr's Estate, 202 Pa. St. 391 522 Corrie's Will, 32 Beavan 426 699 Cort v. Winder, 1 Collier Ch. 321.. 688 Cory v. Cory, 37 N. J. Eq. 198 543 Cosgrove v. Cosgrove, 69 Conn. 416. 452 Cossey v. Cossey, 69 L. J. P. 17. . . Cotheal v. Cotheal, 40 N. Y. 405. . . Cotteen v. Missing, 1 Madd. 103 . . . Cotting v. DeSartiges, 17 R. I, 668 409, Cotton v. Scarancke, 1 Madd. 35 . . . Cottrell v. Cottrell, L. E. 2 P. & D. 397 Couch t. Eastham, 27 W. Va. 796.. Coudert v. Coudert, 43 N. J. Eq. 407 Coulam v. Doull, 133 D. S. 216 Coulter v. Shelmadine, 204 Pa. St. 120 75, 540 Coulthurst v. Carter, 15 Beayan 421 687 Coursay v. Davis, 46 Pa. St. 25 554 Covenhoven v. Shuler, 2 Paige Ch. 122 413, 425, 533 Coventry v. Coventry, 2 Drew. & Sm. 470 468 Coveny v. McLaughlin, 148 Mass. 576 660 Cover v. Stem, 67 Md. 449 54, 60 Covert v. Sebern, 73 Iowa 564 . .425, 437 Cowell v. Spring Co., 100 U. S. 55 Cox v. Anderson (1902, Ky.), 69 S. W. 953 Cox v. Curwen, 118 Mass. 198 Cox v. Handy, 78 Md. 108 Cox v. Wisher, 43 App. Div. 591... Cozens v. Crout, 42 L. J. Ch. 840... Cozzen's Will, 61 Pa. St. 196 Craft v. Snook, 3 N. J. Eq. 121 Craft's Estate, 164 Pa. St. 520 Craig v. Leslie, 16 U. S. 563 213 Craig v. Secrist, 54 Ind. 419 203 Craighead v. Given, 10 I. & R. 351.. 671 Cram v. Wright, 114 N. Y. 307 540 Cramer's Matter, 170 N. Y. 271 656 Crandall v. Barker, 8 N. Dak. 263 . . 555 191 199 498 444 359 384 18 504 456 332 159 386 163 607 536 457 478 587 210 255 530 380 Crane, Matter of, 164 N. Y. 71 470 Crane v. Bolles, 49 N. J. Eq. 373. . 590, 652, 694 Crane v. Reader, 21 Mich. 24 140 Cranvel v. Saunders, Cro. Jac. 497 321, 330 Cravens v. Falconer, 28 Mo. 19.273, 290 Crawford, In re, 113 N. Y. 560..727, 733 Crawford v. Clark, 110 Ga. 729... 478, 533, 555, 641, 659 Crawford v. McCarthy, 159 N. Y. 514 705 Crawford v. Thomas (1899, Ky.), 54 S. W. 197 400 Crawford's Matter, 113 N. Y. 366.. 424, 689 Crawford's Trusts, 2 Drewry, 230.. 457 Crawhall's Estate, 8 DeG. M. & G. 480 ' 493 Crecelius v. Horst, 78 Mo. 566 479 Cremorne v. Antrobus, 5 Russell 312 498 Crenshaw v. McCormick (1902), 19 App. Cas. 494 526 Crerar v. Williams, 145 111. 625.439, 671 Cresswell v. Cresswell, L. R. 6 Eq. 69 210 Creveling v. Jones, 21 N. J. L. 573.. 698 Crew v. Dixon, 129 Ind. 85 500 Cripps v. Wolcott, 4 Madd. 11 660 Crofut v. Layton, 68 Conn. 91 56 Crolly v. Clark, 20 Fla. 849 408 Cromie v. Louisville O. H. Soc., 3 Bush. 365 199 Crooks v. Whitford, 47 Mich. 283 . . 160 Crosbie v. McDougal, 4 Ves. 610 . . . 395 Crosgrove v. Crosgrove, 69 Conn. 416 454, 530, 539; 554 Crosley v. Clare, 3 Swanson 320 . . . 446 Cross v. United States T. Co., 131 N. Y. 330 201, 409 Crossly v. Clare, 1 Amb. 397 467 Crossman v. Crossman, 95 N. Y. 145 345 Crouzeilles's Succession, 106 La. 442 265 Crowder v. Clowes, 2 Ves. Jr. 449.. 701 Crowder v. Stone, 3 Russ. 217.... 647, 664, 665 Crowley v. Crowley, 80 111. 469 283 Crozier v. Bray, 39 Hun 121 547 Crozier v. Bray, 120 N. Y. 366 426 Cruger v. Phelps, 21 Misc. 252..212, 626 Cruikshank v. Home for Friendless, 113 N. Y. 337 671, 672 Crum v. Bliss, 47 Conn. 592. . .667, 668 Crump v. Fancett, 70 N. Car. 345. . . 486 Cruse v. Axtell, 50 Ind. 49 439 Cruse v. Howell, 4 Drew Ch. 215 . . . 479 Cruwys v. Colman, 9 Ves. 319 454 TABLE OF CASES CITED. XXI [references are to sections.] Cudney v. Cudney, 68 N. Y. 148.. . 189 Cullen v. Woolverton, 65 N. J. L. 279 ; 53 Culp t. Lee, 109 N. Car. 675 477 Cummings v. Cummings, 146 Mass. 501 455, 470, 485 Cummings v. Stearns, 161 Mass. 506 80, 665 Cumming's Estate (1903, Iowa), 94 N. W. 1117 727 Cumston v. Bartlett, 149 Mass. 243. 504 Cundiff v. Seaton (1899, Ky.), 49 S. W. 179 510 Cunllffe v. Brancker, 3 Ch. D. 393. 473, 575 Cunningham, In re, 38 Minn. 169 . . . 328 Cunningham v. Cunningham, 80 Minn. 180 306 Cunningham v. Cunningham, 72 Conn. 253 751 Cunningham v. Cunningham, 30 W. Va. 599 383 Cureton v. Massey, 13 Rich. Eg. 104 668, 671, 672 Curie v. Bowyer, 5 Bear. 6 368 Currie v. Pye, 17 Ves. 462 698 Curry v. Patterson, 183 Pa. St. 238. 541 Curtis v. Portland Sav. Bank, 77 Me. 151 26 Curtiss v. Barrus, 38 Hun 165 24 Cushing v. Aylwin, 12 Mete. 169... 526, 529 Cushing v. Spalding, 164 Mass. 287. 607 Cushman v. Goodwin, 95 Me. 353... 470 Cutler v. Cutler, 130 N. Car. 1..292, 365 Cutler v. Cutler, 103 Wis. 258 1$9 Cutter v. Butler, 25 N. Ham. 343... 144 Cutting v. Gilman, 41 N. Hamp. 147 26 Cutto v. Gilbert, 9 Moore P. C. C. 131 337 Daintree v. Fasulo, L. R. 13 P. D. 67 279, 381 Dale's Appeal, 57 Conn. 127.... 188, 191 Daley v. Koons, 90 Pa. St. 246 641 Dalrymple v. Gamble, 68 Md. 523.. 87 Dalrymple v. Leaeh, 192 111. 51 546 Dammann v. Dammann (1894, Md.), 28 Atl. 408 358 Damon v. Damon, 90 Mass. (8 Allen) 192 63, 65 Dana v. Murray, 122 N. Y. 604 610 Dancer v. Crabb, L. R. 3 P. & D. 98 359 Daniel v. Whartenby, 17 Wall. 639.. 558 Daniell v. Daniell, 3 DeG. & S. 337. 481 Danvers v. Claronden, 1 Vern. Ch. 35 "4T2 Darden v. Harrill, 78 Tenn. 421. ... 677 Darland v. Taylor, 52 Iowa 503. .28, 32 Darling v. Emery, 74 Vt. 167 31 Darnell v. Buzby, 50 N. J. Eq. 725.. 285 Dart v. Dart, 7 Conn. 250 632 Dascomb v. Marston, 80 Me. 223 . . . 203 Dauterive's Succession, 39 La. An. 1092 275 Davenport v. Hanbury, 3 Ves. 257.. 445 Davenport v. Johnson, 182 Mass. 269 187 Davidson v. Coon, 125 Ind. 497..751, 749 Davie v. Wynn, 80 Ga. 673 676 Davies v. Davies, 55 Conn. 319.... 457 Davies v. Hughes, 86 Va. 909 720 Davies v. Lowndes, 1 Bing. N. C. 597 628 Davis, In re (1896, R. I.), 35 Atl. 1046 444 Davis v. Barnstable, 154 Mass. 224. 203 Davis v. Calvert, 5 Gill & J. 289. .. 170 Davis v. Chase, 181 Mass. 39 521 Davis v. Close, 104 Iowa, 261.. 719, 730 Davis v. Crandell, 101 N. Y. 311... 708 Davis v. Davis, 62 Ohio 411.... 521, 671 Davis v. Davis, 118 N. Y. 411 661 Davis v. Davis, 6 Lea 543 271 Davis v. Davis, 43 W. Va. 300.. 208, 209 Davis v. Fogle, 124 Ind. 41 385 Davis v. King, 89 N. Car. 441 379 Davis v. Ripley, 194 111. 399 552 Davis v. Semmes, 51 Ark. 49 298 Davis v. Whittaker, 38 Ark.' 435... 731 Davis v. Williams, 85 Tenn. 646 541 Davis v. Williams, 57 Miss. 843 75 Davis's Appeal, 83 Pa. St. 348 749 Davis's Will, 120 N. Car. 9 70, 71 Davis's Will, 103 Wis. 455 226, 243 Davy v. Burnsall, 6 Term 30 556 Davy v. Smith, 3 Salk. 395 303 Dawning v. Marshall, 23 N. Y. 366.. 480 Dawson v. Schaefer, 52 N. J. Eq. 341 453, 584, 655 Dawson's Appeal, 23 Wis. 69 233 Day, Ex parte, 1 Brad. Sur. 476... 51a Day v. Day, 3 N. J. Eq. 449 337 Day v. Slaughter (Va.), 13 L. R. A. 212 609 Day v. Wallace, 144 111. 256 425 Dayger, Matter of, 47 Hun 127... 259, 295 Dazey v. Killam (1864, Ky.), 1 Duvall 403 679 Deake's Appeal, 80 Me. 50.279, 287, 290 Deakins v. Hollis, 7 Gill & J. 311 .. . 262 Dean v. Mumford, 102 Mich. 510.. 465 Dearing v. Selvey, 50 W. Va. 4 526 Deas v. Horry, 2 Hill Ch. 244 80 Deaves's Estate, 140 Pa. St. 242. . . 365 DeBajligethy v. Johnson, 23 Tex. Civ. App. 272 73 TABLE OF CASES CITED. [references are to sections.] DeBauvoir v. DeBauvoir, L. E. 3 H. L. Cas. 524 453 Debinson v. Emmons, 158 Mass. 592 27 DeCamp v. Dobbins, 31 N. J. Eq. 671 199 Deck v. Deck, 106 Wis. 470 177, 185 Deegan v. Wade, 144 N. Y. 573 610 Defiiis v. Goldschmidt, 1 Meriv. 417 474 Defreese v. Lake, 109 Mich. 415 551 DeGiaff t. Went, 164 111. 485 213 Dehaven v. Oglesby (1896, Ky.), 38 S. W. 145 693 Deichman v. Arndt, 49 N. J. Eq. 106 ' 740 Deihl v. King, 6 S. & R. 29 646, 649 Deihl v. Rodgers, 169 Pa. St. 316. .. 310 Delaney v. Salina, 34 Kan. 532. . . . 203 Delany's Estate, 49 Cal. 76 576 DeLavillain v. Evans, 39' Cal. 120. . 193 Dempsey t. Lawson, L. R. 2 P. 98 . . 336 Den t. Gibbons, 22 N. J. L. 117 54.7 Den v. Snitcher, 14 N. J. L. 53 649 Den d. Compton v. Mitton, 7 Halst. 70 273, 298 Den d. Snowhill v. Snowhill, 3 Zeb. 447 336 Den d. Wills v. Cooper, 25 N. J. L. 137 503 Denise v. Denise, 37 N. J. Eq. 163. . 675 Denn v. Roake, 6 Bing. 475 504 Dennin y. Hilton (1901, N. J. Eq.), 50 Atl. 600 30, 31 Dennis v. Holsapple, 148 Ind. 297.. 438 Dennis v. Weekes, 51 Ga. 24 188 Denny v. Kettell, 135 Mass. 138. ... 660 Denton, In re, 137 N. Y. 428. .655, 656 Denton v. Franklin, 9 B. Mon. 28. . 283 Denton's Matter, 137 N. Y. 428 659 DePeyster v. Clendining, 8 Paige Cb. 295 404 De Peyster v. Michael, 6 N. Y. 467. 607 Derse v. Derse, 103 Wis. 113 544 Desesbats v. Berquier, 1 Binney. 336 409 D'Estes's Settlement (1903), 1 Ch. D. 898 : 504 Detroit Second Nat. Bank v. Wil- liams, 13 Mich. 282 29 Deupree v. Deupree, 45 Ga. 415... 386 DeVaughn v. Hutchinson, 165 U. S. 566 408, 551 DeVeaux v. DeVeaux, 1 Strobh. Eq. 283 475 Devecmon v. Devecmon, 43 Md. 335 242, 243 Devisme v. Mellish, 5 Ves. 529 455 Devisme v. Mello, 1 Brown Ch. 537 476 Devoe, In re, 171 N. Y. 281 456 Dew v. Clark, 3 Addams Ecc. 79. . 122, 125, 137 Dewey v. Dewey, 1 Mete. 349 280 Dewey v. Morgan, 18 Pick. 295 413 DeWitt v. Yates, 10 Johns 156.. 697, 698 DeWolf v. Middleton, 18 R. I. 810. 470, 572, 633, 648, 649 Dexter v. Harvard College, 176 Mass. 192 521 Dexter v. Inches, 147 Mass. 324 . . . 445 Diament v. Lore, 31 N. J. L. 220. .. 541 Dicke v. Wagner, 95 Wis. 260 436 Dicken v. McKinley, 163 111. 318. . . 55 Dickerman v. Eddinger, 168 Pa. St. 240 752 Dickerson's Appeal, 55 Conn. 223.. 527 Dickey v. Malechi, 6 Mo. 177 355 Dickie v. Carter, 42 111. 376 182 Dickinson v. Byron, 8 S. & R. 71 . . . 682 Dickinson v. Dickinson, 61 Pa. St. 401 318 Dickinson v. Overton, 57 N. J. Eq. 26 698 Dickison v. Dickison, 138 111. 541. 424, 441, 521 Dickson, Ex parte, 1 Simon N. S. 37 629 Dickson v. Montgomery, 1 Swan 348 439 Dickson v. U. S., 125 Mass. 311 193 Diez, Matter of, 50 N. Y. 88..70, 73, 261 Dillard v. Dillard, 97 Va. 434 499 Dilley v. Matthews, 8 L. T. (n. s.) 762 436 Dills v. Adams (1897, Ky.), 43 S. W. 6S0 539 Dingley v. Dingley, 5 Mass. 535 .... 467 Dister v. Dister, 3 Lev. 108... 366, 368 Dixon v. Cooper, 88 Tenn. 177.... 80, 674, 675, 676 Doane v. Hadlock, 42 Me. 72 355 Doane v. Lake, 32 Me. 268 164 Dobie v. Armstrong, 160 N. Y. 584.. 122 Dobson, In re. Goods of, L. R. 1 P. & D. 88 65 Dockum v. Robinson, 26 N. Hamp. 372 225 Dodd v. Doe d. Dodd, 2 Houst. 76.. 539 Dodge v. Gallatin, 130 N. Y. 117. . . 84 Dodge v. Williams, 46 Wis. 70 404 Dodge's Appeal, 106 Pa. St. 216. . . 450 Dodson v. Ball, 60 Pa. St. 492..544, 555 Dodson v. Grew, 2 Wilson 322.... 558 Dodson v. Sevars, 52 N. J. Eq. 611 534, 543 Doe v. Clarke, 2 H. Bl. 399 477 Doe v. Collins, 2 Term 498 506 Doe v. Cranstoun, 7 Mees & W. 1 . . 510 Doe v. Hull, 2 Dow. & Ry. 38 81 TABLE OF CASES CITED. xxill [references aee to sections.] Doe v. Tompkinson, 2 M. & Sel. 165. 80 Doe d. Ashforth v. Bower, 3 Barn. & Ad. 453 508 Doe d. Beach v. Jersey, 1 Barn & Aid. 550 509 Doe d. Cadogan v. Ewart, 7 Ad. & El. 636 574, 583, 635, 648 Doe d. Caldeeott v. Johnson, 7 Man. & G. 1047 504 Doe d. Cannon v. Bucastle, 8 C. B. 876 S57 Doe d. Davy v. Burnsall, 6 Term 30 556 Doe d. Evans v. Evans, 10 Ad. & El. 228 329 Doe d. Ferguson v. Roe, 1 Har. 524. 672 Doe d. Gallini v. Gallinl, 3 Ad. & El. 340 642 Doe d. Garner v. Lawson, 3 East 27S 470 Doe d. Garrod v. Garrod, 2 Barn & Ad. 87 5S7 Doe d. Gilman v. Elvey, 4 East 313. 556 Doe d. Haw v. Earles, 15 M. & W. 450 502 Doe d. Hayter v. Joinville, 3 East 172 454 Doe d. Hearn v. Cannon, 4 Houst. 20 479, 521 Doe d. Herbert v. Selby, 2 Barn & C. 926 568, 575 Doe d. Hindson v. Hersey, 4 Burn Sec. 07 205 Doe d. Hitch v. Patten, 8 Houst. 334 539 Doe d. Hodsden v. Staple, 2 Term 684 372 Doe d. King v. Frost, 3 Barn. & Aid. 546 649 Doe d. Lancashire v. Lancashire, 5 Term 49 375 Doe d. Lushington v. Bishop of Landaff, 2 Bos. & Pul. N. R. 491. 370 Doe d. Lyde v. Lyde, 1 Term 593 . . . 641 Doe d. Perkes v. Perkes, 3 Barn. & Aid. 489 347 Doe d. Reed v. Harris, 6 Ad. & El. 209 344, 349 Doe d. Rew v. Lucraft, 8 Bing. 386. 641 Doe d. Smith v. Webber, 1 Barn., & Aid. 713 649 Doe d. Stevenson v. Glover, 1 C. B. 448 547 Doe d. Strickland v. Strickland, 8 C. B. 724 345 Doe d. Thwaites v. Over, 1 Taunton 263 455 Doe d. Wheedon v. Lea, 3 Term 41. 586 Doe d. White v. Barford, 4 Maule & S. 10 381 Doe d. Winter v. Perratt, 5 Barn. & C. 48 452 Doe d. Wynne v. Wynne, 23 Miss. 251 526 Doe ex dem Small v. Allen, 8 Term 147 170 Doerner v. Doerner, 161 Mo. 399.. 475 Dole v. Johnson, 3 Allen 364 492 Dole v. Lincoln, 31 Me. 422 22 Donald v. Unger, 73 Miss. 104..225, 234 Donaldson's Goods, 2 Curt. 3S6. . . . 238 Donegan v. Wade, 70 Ala. 501.. 619,' 622 Donges's Estate, 103 Wis. 497 386 Donnell v. Newberryport Hos., 179 Mass. 187 653 Donnelly v. Broughton, L. R. 16 App. C. 435 190 Donnelly's Will, 68 Iowa, 126.. 165, 170 Donohoo v. Lea, 1 Swan 119.... 368, 521, 524 Donohue v. Donohue, 54 Kan. 136. . 539 Donovan v. St. Anthony &c. Co., 8 N. Dak. 585 204 Doran v. Doran, 99 Cal. 311 39 Dormey v. Parkhurst, 18 Vin. Abr. 413 635 Dorr v. Johnson, 170 Mass. 540... 653 Dorsey v. Dodson, 203 III. 32 671 Dorsey v. Sheppard, 12 Gill & J. 192 225 Dorsey's Com. v. Maddox, 103 Ky. 253 639 Douce, Goods of, 2 Sw. & Tr. 593.. 255 Dougherty v. Dougherty, 61 Ky. (4 Mete.) 25 65 Douglas v. Harkrender, 3 Baxter 114 271 Douglass v. Douglass, 13 App. D. C. 21 711 Dove v. Johnson, 141 Mass. 287.... 676 Dovel v. Dye, 123 Ind. 321 27 Dower v. Seeds, 28 W. Va. 113... 340, 359, 364 Down v. Down, 7 Taunton, 343 .... 509 Downie's Will, 42 Wis. 66.. 304, 305, 306 Downing v. Nicholson, 115 Iowa 493 444, 467, 676, 677 Downing v. Wherrin, 19 N. Ham. 9 '. 574, 630, 646, 649 Dowsett, In re (1901), 1 Ch. D. 398 712 Drayton v. Rose, 7 Rich. Eq. 328.. 397 Dresser v. Dresser, 46 Me. 48 31 Drew v. Drew (1899), 1 Ch. D. 336 464 Drew v. Drew, 28 N. Ham. 489 . . 508, 509, 510, 511 Drew v. Hagerty, 81 Me. 231 26. Drew v. Wakefield, 54 Me. 291 455, 503, 521, 669, 672 XXIV TABLE OF CASES CITED. [references are to sections.] Dries'B Will, N. J. 55 Atl. 814. 165, 436 Druke v. Heiken, 61 Cal. 346 28 Drummond v. Parish, 3 Curt. 522. . 238 305 31 158 294 299 540 612 Drury t. Connell, 177 111. 43 Drury v. Smith, 1 Peere Wms. 404. Duane, In Goods of, 2 Sw. & T. 590. Dubois v. Van Valen, 61 N. J. Eq. 331 540, 544 Ducker v. Burnham, 146 111. 9... 543, 584 Dudley v. Gates, 124 Mich. 440 328 Dudley v. Milton, 176 Mass. 167... 506 Dudley v. Weinhart, 93 Ky. 401.64, 319 Duffy v. Hargan, 62 N. J. Eq. 588.. 456 Dugan v. Hollins, 4 Md. Ch. 139... 729 Dugdale v. Dugdale, 38 Ch. D. 176. 607 Duggins, Goods of, 22 L. T. (n. s.) 182 Duggins, Goods of, 39 L. J. (n. s.) P. 24 Duguid v. Fraser, L. E. 31 Ch. Div. 449 338 Dukes v. Faulk, 37 S. Car. 255 .. . 449, 452, 485 Dulin v. Moore (1902, Tex. Civ. App.), 69 S. W. 94 Dumey v. Schoeffler, 24 Mo. 170 . . Duncan v. Clay, 13 Bush. 48 731 Duncan v. Forrer, 6 Bin. 198 79 Duncan v. Inhabitants, 43 N. J. Eq. 143 743 Duncan v. Martin, 7 Yerger 519. . . 531 Duncan v. Wallace, 114 Ind. 169.. 752 Dunford v. Jackson (1895, Va.), 22 S. E. 853 505 Dunham v. Averill, 45 Conn. 61. . .. 159 Dunham v. Deraismes, 165 N. T. 65. 756 Dunham's Appeal, 27 Conn. 192... 129, 135 Dunlap v. Fant, 74 Miss. 197 448 Dunlap's Appeal, 116 Pa. St. 500.. 456 Dunn v. Cory, 56 N. J. Eq. 507 688, 691, 442 Dunn v. Dunn, L. E. 1 P. & D. 277 . 294 Dunn v. German Am. Bank, 109 Mo. 90 20, 37, 41, 43 Dunn v. Houghton (1902, N. J. Eq.), 51 Atl. 71 27 Dupuy V. Wurtz, 53 N. Y. 556 405" Durance, Goods of, L. E. 2 P. & D. 406 330, 341 Durant v. Ashmore, 2 Eich. L. 184. 357 Durbin v. Eedman, 140 Ind. 694 450 Durboraw v. Durboraw (1903, Kan.), 72 Pac. 566 510, 526 Durfee v. MacNeil, 58 Ohio St. 238 452, 653 Durfee v. Pomeroy, 154 N. T. 583.. 541 Durham v. Averill, 45 Conn. 61 ... . 329 Duryea v. Duryea, 85 111. 41 Dutton v. Pugh, 45 N. J. Eq. 426. .. Duvale v. Duvale, 54 N. J. Eq. 581. Dye v. Beacer Creek Church, 48 S. Car. 444 Dyer, Goods of, 1 Hagg. 219 Eager v. Furnivall, 17 Ch. D. 115.. Earl v. Grim, 1 Johns Ck. 494.. 530, Earl of Darlington v. Pulteney, 1 Cowper 260 ...' Earl of Buston v. Seymour, 2 Curt. 338 Earl of Ilchester, Ex parte, 7 Ves. 348 321, Earle v. Botsford, 23 New Bruns. 407 Earp v. Edgington, 107 Tenn. 23 . . 171, Eastman v. Baker, 1 Taunton 174 . . 603, Eastwood v. Avison, L. E. 4 Excli. 141 Eaton v. Straw, 18 N. Ham. 320.. Eberts v. Eberts, 42 Mich. 404 . .659, Eccleston v. Petty alias Speke, Car- thew 97 340, Eckford v. Eckford, 91 Iowa 54 Edens v. Miller, 147 Ind. 208 Edge v. Salisbury, Ambler 70 Edgerly v. Barker, 66 N. H. 434.. 430, Edlestone v. Speake, 1 Shower 89.. Edson v. Parsons, 155 N. Y. 555. . . Edwards v. Bender, 121 Ala. 77. . .. Edwards v. Eanier, 17 Ohio St. 597 517, Edwards v. Wagner, 121 Cal. 376. . Egan, In re (1899), 1 Ch. 688 Eggleston v. Merriam, 83 Minn. 254 Eggleston v. Speke, 3 Mod. 259 Eichelberger v. Barnitz, 9 Watts 447 575, Eilbeck v. Wood, 1 Euss. Ch. 564 . . Ekersley v. Piatt, L. E. 1 P. & D. 281 Ela v. Edwards, 16 Gray 91 248, 277, 283, 287, Elcock's Will, 4 McCord 39... 405, Eldred v. Shaw, 112 Mich. 237 Eldridge v. Eldridge, 9 Cush. 516.. Eliot v. Carter, 12 Pick. 436... 506, Ellerson v. Westcott, 148 N. Y. 149. Ellicombe v. Gompertz, 4 Mylne & Cr. 127 Elliot v. Davenport, 1 P. Wms. 83 682, Elliot v. Fessenden, 83 Me. 197.. Elliott v. Brent, 6 Mackey 98. . . . Elliott v. Elliott, 12 Sim. 276. .-. , 378 660 57 439 246 675 541 70 239 340 35 185 646 644 547 660 366 514 515 455 431 340 72 442 697 28 499 707 340 649 370 357 290 523 653 588 434 211 641 66S 674 208 475 TABLE OF CASES CITED. XXV - [references are to sections.] Elliott v. Elliott, 117 Ind. 380 415, 428, 442 Elliott's Will, 25 Ky. 2 J. J. Mar- shall, 340 178 Ellis v. Aldrich, 70 N. Hamp. 219. . 743 Ellis v. Birkhead (1902, Tex. Civ. App.), 71 S. W. 31 212 Ellis v. Cary, 74 Wis. 176 55 Ellis v. Darden, 86 Ga. 368 374, 380, 384, 387 Ellis v. Davis, 109 TJ. S. 485.. 167, 172 Ellis v. Ellis, 2 Dessau 556 381 Ellis v. Pearson, 104 Tenn. 591 ... 73 Ellis v. Secor, 31 Mich. 185 27, 247 Ellis v. Smith, 1 Ves. Jr. 11. . .273, 339 Ellison v. Airey, 1 Ves. Sr. Ill 475 Elms v. Elms, 1 Sw. & Tr. 155... 347 Elton v. Eason, 19 Ves. 73 558 Elton v. Shephard, 1 Brown Ch. 532 541 Emanuel v. Constable, 3 Eussell Ch. 436 204, 206 Emerson, Goods of, L. R. 9 Ir. 443. 255, 256 Emery, Appellant, 81 Me. 275 373 Emery v. Clough, 63 N. Hamp. 552 21, 31 Emery v. Darling, 50 Ohio St. 160 51a, 57 Emery v. Haven, 67 N. Ham. 503 . . . 504 Emery v. Union Soe., 79 Me. 334 . . . 368 Emery's Estate, 3 Ch. D. 300 482 Emmert v. Hays, 89 III. 9 150, 151 Emmet v. Emmet, 67 N. T. App. Div. 183 445 Endicott v. Endicott, 41 N. J. Eq. 93 498 Englert v. Englert, 198 Pa. St. 326 183, 189 Englerth v. Rowland, 50 W. Va. 259 545 English f. Cooper, 183 III. 203..522, 671 Ennis v. Pentz, 3 Bradford Sur. 382 455 Enos v. Snyder, 131 Cal. 68 68 Enyon, Goods of, L. R. 3 P. & D. 92 / 294 Epps v. Dean, 28 Ga. 533 370 Ernst v. Foster, 58 Kan. 438 543 Erwin v. Smith, 95 Ga. 699 727 Eschbaek v. Collins, 61 Md. 478.. 358, 359 Essick v. Caple, 131 Ind. 207 656 Estate of, see name of party. Estep v. Morris, 38 Md. 417... 310, 314 Esty v. Clark, 101 Mass. 36 674 Eustace, Goods of, L. R. 3 P. & D. 183 332 Evans v. Anderson, 15 Ohio St. 324 383, 385 Evans v. Charles, 1 Anst. 128 457 Evans v. Evans, 10 Ad. & El. 228 . . 329 Evans v. Polks, 135 Mo. 397 543 Evans v. Harris, 5 Beav. 45 474 Evans v. Hunter, 86 Iowa 413..705, 714 Evans v. Inglehart, 6 Gill & J. 171. 533 Evans v. Opperman, 76 Tex. 293 . . 442 Evans v. Smith, 28 Ga. 98 70, 71 Evans v. Smith, 166 Pa. St. 625 . . . 546 Evan's Appeal, 58 Pa. St. 238. .349, 352 Evans's Estate, 155 Pa. St. 646. . 470, 453 Evan's Will, 123 N. Car. 113 190 Evansville Ice & C. S. Co. v. Win- sor, 148 Ind. 682 408, 409 Evenson v. Webster, 3 S. Dak. 382. 75 Everett v. Carr, 59 Me. 325 160 Everett's Estate, 195 Pa. St. 450... 456 Everhart v. Everhart, 34 Fed. Rep. 82 256 Ex parte, see name of party. Eyer v. Beck, 70 Mich. 179 488 Fabens v. Fabens, 141 Mass. 395. .. 453 Faber v. Police, 10 S. Car. 376 581 Fahnestock's Estate, 147 Pa. St. 327 693 Fair's Estate, 132 Cal. 523 422 Fairchild v. Bascomb, 35 Vt. 398... 187 Fairfax v. Hunter, 7 Cranch 603.. 140, 213 Fairfield v. Bushell, 32 Beav. 158. . 445 Fallon v. Chidester, 46 Iowa 588. . 383, 381 Fargo v. Miller, 150 Mass. 225... 471 Farmer v. Kimball, 46 N. Ham. 435 488, 489 Farnham v. Phillips, 2 Atk. 215... 731 Farnum v. Bascom, 122 Mass. 282. 704, 743, 747, 705 Farrar v. Earl of Wintrington, 5 Beav. 1 368 Farrer v. St. Catherine's College, L. R. 16 Eq. Cas. 19 331 Farrington v. Putnam, 90 Me. 405.. 199 Faulkner v. Nat'l S. H., 155 Mass. 458 437 Fawcett v. Jones, 3 Phillim. Ecc. 434 157 Fearing v. Jones, 149 Mass. 12 ... . 18 Feit v. Richard (1902, N. J. Eq.), 53 Atl. 824 540 Fellows v. Allen, 60 N. Ham. 439.. 146, 373 Fellows v. Miner, 119 Mass. 541.... 409 Fenn v. Death, 23 Beav. 73 442 Fenstermaker v. Holman, 158 Ind. 71 494, 540, 546 Fenton v. Fenton, 35 Misc. 479 . . . 492, 517 Ferguson v. Dunbar, 3 Bro. Ch. 469 665 XXVI TABLE OF CASES CT.TED. [references are to sections.] Ferguson v. Roe, 1 Har. 524 672 Ferguson v. Stuart, 14 Ohio St. 340 453 Ferguson-Davie v. Ferguson-Davie, L. E. 15 Pro. Div. 109 59 Ferrer v. Pyne, 81 N. Y. 281. .445, 488 Ferris v. Neville, 127 Mich. 444.. 75, 287 Festing t. Allen, 12 Mees. & W. 279 587 Festorazzi v. St. Joseph's C. C. M., 104 Ala. 327 196 Fettiplaee v. Gorges, 1 Ves. Jr. 46... 150 Fickle t. Snepp, 97 Ind. 289... 250, 251 Fickus, In re (1900), 1 Ch. Div. 331 54 Fidelity Co.'s Appeal, 108 Pa. St. 492 523, 524 Fidelity Ins. T. & S. D. Co.'s Ap- peal, 121 Pa. St. 1 380 Fidelity T. & G. Co., Matter of, 57 App. Div. (N. Y.) 532 453 Field v. Peckett, 29 Beav. 573 498 Field v. Peeples, 180 111. 376 653 Fifleld v. Van Wyck, 94 Va. 557. . 439, 616, 620 Finch v. Finch, L. R. 1 P. & D. 371. 357 FineHte v. Sinnott, 125 N. Y. 683.. 511 Finlay v. King, 3 Peters 346 595 Fischer v. Popham, L. R. 3 P. & D. 246 281 Fish, In re (1894), 2 Ch. D. 83.. 437, 444 Fish, Matter of, 88 Hun 56... 291, 302 Fishback v. Joesting, 183 III. 463. 651, 682 Fisher, In re, 4 Wis. 254 .336, 338 Fisher v. Hill, 7 Mass. 86 674, 675 Fisher t. Keithley, 142 Mo. 244... '. . 728, 734 Fisher v. Spence, 150 111. 253. .209, 311 Fisher v. Wister, 154 Pa. St. 65. . . 547 Fisk v. Fisk, 60 N. J. Eq. 195 485 Fissel's Appeal, 27 Pa. St. 55 488 Fitzpatrick v. Fitzpatrick, 36 Iowa 674 516 Fitzpatrick v. Fitzpatrick, 100 Va. 552 553 Fitzroy v. Howard, 3 Russell 225 . . 503 Flannery's Will, 24 Pa. St. 502..408, 409 Flannigan v. Howard, 200 111. 396.. 385 Fleetwood, Re, 15 Ch. Div. 594 210 Fletcher v. Williams (1902, Tex. Civ. App.), 66 S. W. 860 85 Flick v. Forest Oil Co., 188 Pa. St. 317 656 Flinn v. Owen, 58 111. Ill 290 Flintham v. Bradford, 10 Pa. St. 82 362 Flood v. Pragoff, 79 Ey. 607 .... ' 259, 262, 279 Flora v. Anderson, 67 Fed. Rep. 182 442, 445 Florey v. Florey, 24 Ala. 241 170 Floyd v. Floyd, 3 Strobh. 44 344 Flummerfelt v. Flummerfelt, 51 N. J. Eq. 432 526 Flynn v. Holman (1903, Iowa), 94 N. W. 447 417, 426, 515, 526 Follansbee v. Folansbee (1895), 7 App. D. C. 282 486 Folger v. Tilcoinb, 92 Me. 184..416, 537 Foos v. Scarf, 55 Md. 301 504 Forbes v. Jason, 6 111. App. 395 32 Forbing v. Weber, 99 Ind. 588 355 Ford f. Fleming, 2 P. Wms. 469... 707 Ford v. Ford, 80 Mich. 42 433 Ford y. Ford, 70 Wis. 19. .408, 409, 433 Ford v. Ford, 7 Hump. 92 298 Ford v. Ford, 2 Root. 232 315 Ford v. Gill, 109 Ga. 691 540 Ford v. Ticknor, 169 Mass. 276.... 536 Forepaugh's Estate, 199 Pa. St. 484 743 Forest Oil Co. v. Crawford, 77 Fed. 106 539, 553, 554 Forest Oil Co. v. Erskine, 83 Fed. 109 554 Forman v. Troup, 30 Ga. 496 649 Forney's Estate, 161 Pa. St. 209. . . 389 Forrest v. Porch, 100 Lenn. 391 433, 449, 453, 468, 470, 4'85 Forrester v. Leigh, Ambler 171 .... 503 Forse & Hembling's Case, 4 Coke 60b 372 Forshaw v. Welsby, 30 Beavan 243 24 Forsyth v. Forsyth, 46 N. J. Eq. 400 ,.. 627 Forsythe v. Lansing, 109 Ky. 518. 581, 584, 655 Forth v. Chapman, 1 P. Wms. 663 637, 648 Fortune v. Buck, 23 Conn. 1 209 Fosdick v. Cornell, 1 Johns 440 649 Fosdick v. Fosdick, 6 Allen 41 475 Fosselman v. Elder, 98 Pa. St. 159.. 60 Foster v. Banbury, 3 Simons Ch. 40 204, 206 Foster v. Romney, 11 East 594. . . . 633 Foster v. Smith, 156 Mass. 379 540 Foster's Appeal, 87 Pa. St. 67 357 Fouke v. Kemp, 5 H. & J. 135 442 Fowler v. Duhme, 143 Ind. 248 656 Fowler v. Stagner, 55 Tex. 393 . . .210, 292, 296 Fowlkes v. Wagoner (1898, Tenn.), 46 S. W. 586 606, 607 Fox v. Martin, 104 Wis. 580 187 Fox v. Rumery, 68 Me. 121 576 Fox's Will, 52 N. Y. 530 ' 201 Frahm's Estate (1903, Iowa), 94 N. W. 444 711, 712 TABLE OF CASES CITED. xxvil [references are to sections.] Frail v. Carstalrs, 187 111. 310... 591, 674, 675, 678 Frank v. Frank, 71 Iowa 646 707 Franklin v. Franklin, 90 Tenn. 44. . 242 Franklin v. Lay, 6 Madd. 258 556 Franks v. Brooker, 27 Beav. 635 . . 464 Franks v. Chapman, 64 Tex. 159.. 294, 296 Fransen's Will, 26 Pa. St. 202 374 Frantz v. Porter, 132 Cal. 49 29 Fraser, Goods of, L. E. 2 P. & D. 40 68, 330 Fraser v. Boone, 1 Hill Ch. 360... 425 Fraser v. Dillon, 78 Ga. 474 488 Fraser v. Jennison, 42 Mich. 206.. 135 Frazer v. Weld, 177 Mass. 513 . . . 460 Frazier v. Boggs, 37 Fla. 307..408, 526 Freeman v. Coit, 96 N. Y. 63 494 Freeman v. Parsley, 3 Ves. 421 .... 445 Freeman v. Phillips, 113 Ga. 589. .. 607 Freemantle v. Bankes, 5 Ves. 79 . . . 731 French v. Caddell, 3 Brown P. C. 257 645 French v. French, 14 W. Va. 458.. 65, 66 French's Case, 1 Roll. Abr. 614 328 Frere v. Peacocke, 1 Rob. Ecc. 442.. 121 Frew v. Clarke, 80 Pa. St. 170. .73, 286 Friefleld v. Minkowski, 37 Misc. 303 751 Friend's Estate, 198 Pa. St. 363... 190 Frith, Goods of, 1 Sw. & Tr. 8 299 Frith, In re, 85 L. T. 455 470 Frith v. Pearce, 105 La. 186 227 Fritz v. Turner, 46 N. J. Eq. 515. . 255 Frost v. Courtis, 167 Mass. 251... 479 Fry v. Shipley, 94 Tenn. 252 . .501, 520 Fry's Estate, 163 Pa. St. 30 696 Frye v. Avritt (1902, Ky.), 68 S. W. 420 ..718, 732 Fulbright v. Perry County, 145 Mo. 432 200 Fullenwider v. Watson, 113 Ind. 18. 536 Fuller, Goods of, 17 Pro. Div. 377.. 259 Fuller v. Fuller, 83 Ky. 345... 310, 311 Fuller v. Fuller, 84 Me. 475 534, 539, 540 Fuller v. Martin, 96 Ky. 500 444 Fuller v. Wilbur, 170 Mass. 506... 540 Fuller's Estate, 71 Vt. 73 368, 371, 503, 505 Fulton v. Andrews, L. R. 7 H. L. 448 .158 Funk v. Davis, 103 Ind. 281 . . f . . . 514 Funk v. Eggleston, 92 111. 515 504 Fuqua, Succession of, 27 La. Ann. 271 270 Furbee v. Furbee, 49 W. Va. 191 . . i 413, 515 Furenes v. Severtson, 102 Iowa 322 452 Furlong v. Carraher, 108 Iowa 492.. 178 Furness, In re (1901), 2 Ch. D. 346 722, 729, 732 Gable v. Daub, 40 Pa. St. 217..407, 529 Gable v. Rauch, 50 S. Car. 95 279 Gadd v. Stoner, 113 Mich. 689 544 Gadsden v. Desportes, 39 S. Car. 131 560 Gafney v. Kenison, 64 N. Ham. 354 506 Gage v. Gage, 29 N. Hamp. 533 ... 163 Gains v. Gains, 2 A. K. Marsh 190.. 344 Gale v. Bennett, Ambler 681 442 Gallagher v. Crooks, 132 N. Y. 338 455, 497 Gallagher v. Rowan, 86 Va. 823 . . . 672 Gallagher's Appeal, 48 Pa. St. 121. 749 Gallavan v. Gallavan, 64 N. Y. S. 329 521 Gallego v. Atty. Gen., 3 Leigh 450.. 439 Gallini v. Gallini, 3 Ad. & El. 340.. 642 Galloway v. Carter, 100 N. Car. Ill 582, 603, 653 Gamble v. Butchee, 87 Tex. 643... 208, 209 Gammell v. Ernst, 19 R. I. 292. . . , 556 Gannon v. Peterson, 193 111. 372.! 641 Gano v. Fisk, 43 Ohio St. 462 31 Gardiner v. Courthope, L. R. 12 P. 14 346 Gardiner v. Gardiner, 65 N. Hamp. 230 359 Gardiner v. Savage, 182 Mass. 521. 577 Gardner, Goods of, 1 Sw. & Tr. 109. 357 Gardner v. Gardner, 177 Pa. St. 218 357 Gardner v. Gardner, 22 Wend. 526 . 28, 177 Gardner v. Parker, 3 Madd. 184... 36 Garland v. Garland, 87 Va.,758 609 Garman v. Glass, 197 Pa. St. 101 . . 603 Garner v. Lawson, 3 East 278 470 Garnett v. Dabney, 27 Miss. 335... 366, 372 Garratt v. Niblock, 1 Russell &. M. 629 464 Garraud's Estate, 35 Cal. 336 163 Garrett v. Heflin, 9S Ala. 615 298 Garrick v. Camden, 14 Ves. 372... 456 Garrison v. Hill, 81 Md. 206 673 Garrity, In re, 108 Cal. 463 534 Garrod v. Garrod, 2 Barn. & Ad. 87 557 Garth v. Garth, 139 Mo. 456 720 Garth v. Meyrick, 1 Brown Ch. 30. 481, 698 Garthwaite v. Lewis, 25 N. J. Eq. 351 671 Garvey v. Hibbert, 19 Ves. 125 481 Garvin v. Williams, 50 Mo. 206 191 Gass v. Gass, 22 Tenn. 278 248 XXV111 TABLE OF CASES CITED. [references are to sections.] Gass v. Simpson, 44 Tenn. 288 35. Gaston's Estate, 188 Pa. St. 374. . . 59 Gates v. Seibert, 157 Mo. 254 442, 475, 478 Gay v. Gay, 84 Ala. 38 380 Gay v. Gay, 60 Iowa, 415 352, 354, 360, 364 Gaylor's Appeal, 43 Conn. 82. ..400, 405 Ge0. 270 Shailer v. Bumstead, 99 Mass. 12.. 188 Shires v. Glascock, 2 Salk. 688 303 Shorb v. Brubaker, 94 Ind. 165. . . . 131 Short v. Smith, 4 East 418 358, 359 Shorten v. Judd, 60 Kan. 73 378 Shotts v. Poe, 47 Md. 513 468 Shove v. Pincke, 5 Term 124 370 Showers v. Showers, 27 Pa. St. 485. 253 TABLE OF CASES CITED. lv [references are to sections.] Shreve v. Shreve, 43 Md. 382 558 Shull v. Johnson, 2 Jones Eq. 202 . . 444, 468, 486 Shumaker v. Pearson, 67 Ohio St. 320 676 Shumaker v. Schmidt, 44 Ala. 454. 72 Shuman v. Heldman, 63 S. Car. 474. 595, 626 Shumate v. Bailey, 110 Mo. 411 . . . 500 Sibley v. Cook, 3 Atk. 572 668, 682 Sibley v. Perry, 7 Ves. 522 445 Sickles's Will, 63 N. J. E. 233 176 Siddons v. Cockrell, 131 111. 653... 478 Sidney v. Shelley, 19 Ves. 352 669 Silliman v. Whitaker, 119 N. Car. 89 552 Sills v. Logan, 28 Ind. App. 170. . . 546 Silsby v. Sawyer, 64 N. H. 580 454 Silvany's Estate, 127 Cal. 226 190 Sim v. Russell, 90 Iowa 656 187 Simmons v. Beazel, 125 Ind. 362 . . . 371 Simmons v. Leonard, 91 Tenn. 183. 273, 275, 280, 284, 299 Simmons v. Spratt, 26 Fla. 449 79 Simonds v. Simonds, 168 Mass. 144 . 539, 540 Simonton v. White, 93 Tex. 50 551 Simpson v. Cherry, 34 S. Car. 68 . . 660 Simpson v. Simpson, 27 Mo. 288 265 Simpson v. Spence, 5 Jones Eq. 208 . 475 Simpson v. Walker, 5 Sim. Ch. 1 . . 368 Simrell's Estate, 154 Pa. St. 604. . . 358 Sims v. Conger, 39 Miss. 231 432, 639, 653 Singleton v. Gilbert, 1 Cox. Ch. 68. 476 Singleton v. Tomlinson, L. K. 3 App. Cas. 404 250 Sinnott v. Kenaday, 14 App. Cas. D. C. 1 523 Sinnott v. Moore, 113 Ga. 908 609 Sinton v. Boyd, 19 Ohio St. 30 660 Sipthorp v. Moxton, 1 Ves. 49 668 Sisson y. Seabury, 1 Sumn. 235. . . . 416 Sisters of Charity v. Kelly, 67 N. T. 409 259 Sisters of Charity v. Kelly, 67 N. T. 413 292 Skellenger v. Skellenger, 32 N. J. Eq. 659 497 Skerrett's Estate, 67 Cal. 585. . .59, 60 Skey v. Barnes, 3 Merivale 335 603 Skinner v. Amer. Bible Soc. 92 Wis. 209 .282, 294, 396 Skinner v. Harrison Tp., 116 Ind. 139 203 Skinner v. Lamb, 3 Ired. L. 155 665 Skinner v. Lewis, 40 Ore. 571.. 279, 289 Skipwith v. Cabell, 19 Gratt. 758.. 329 Slack v. Bird, 23 N. J. Eq. 238 660 Slagel v. Payne (1899, Tex. Civ. App.), 50 S. W. 500 508 Slater v. Nason, 15 Pick. 345 140 Slaughter v. Stephens, 81 Ala. 418. 326, 371 Sleech v. Thorington, 2 Ves. Sr. 560. 481 Slingluff v. Johns, 87 Md. 273 487 Sloan v. Sloan, 184 111. 579 209, 272, 284, 286 Sloan v. Thornton, 102 Ky. 443 676 Small v. AHen, 8 Term. 147 170, 174 Small v. Jose, 86 Me. 121 85 Small v. Marburg, 77 Md. 11 521 Small v. Small, 4 Me. 220 177 Small v. Thompson, 92 Me. 539 536 Smalley v. Smalley, 70 Me. 545 313 Smalley v. Smalley, 49 L. T. 632 . . . 527 Smart, Goods of, L. E. 9 P. 64 331 Smart v. King, Meigs 149 477 Smart v. Tranter, L. R. 40 Ch. Div. 165 149 Smathers v. Moody, 112 N. Car. 791 540 Smiley v. Gambill, 2 Head. 164 343 Smith, In re, 45 Ch. Div. 632 395 Smith, In re Goods of, L. R. 1 P. & D. 717 64, 67, 319 Smith, Matter of, 131 K. T. 239 475 Smith v. Bell, 6 Peters 68 537, 546 Smith v. Biddall, 2 Mod. 289 572 Smith v. Block, 29 Ohio St. 488 660 Smith v. Boyd, 127 Mich. 417 167, 170, 172 Smith v. Bryan, 12 Ired. 11 82 Smith v. Burch, 92 N. T. 228 499 Smith v. Cairns, 92 Tex. 667 734 Smith v. Campbell, 19 Ves. 400 455 Smith v. Clemson, 6 Houst. 171 373, 406 Smith v. Curtis, 29 N. J. L. 345 488 Smith v. Dennis, 163 111. 631 506 Smith v. Dorsey, 38 Ind. 451 35 Smith v. Du Bose, 78 Ga. 413. . 212 Smith v. Evans, 1 Wils. 313 256 Smith v. Fellows, 131 Mass. 20.707, 708 Smith v. Gates, 2 Root 522 530 Smith v. Greeley, 67 N. H. 377 454, 475, 554 Smith v. Henline, 174 111. 184 175, 182, 190 Smith v. Holden, 58 Kan. 535 62, 75, 283 Smith v. Jackman, 115 Mich. 192. . 756 Smith v. Jones, 68 Vt. 132 311, 318 Smith v. Kimball, 62 N. Ham. 606. 437 Smith v. Kittridge, 21 Vt. 238 29 Smith v. McChesney, 2 McCart. 359. 328, 331, 332, 336 Smith v. Miller (1898, Ky.), 47 S. W. 1074 659 lvi TABLE OF CASES CITED. [references are to sections.] Smith v. Phillips, 131 Ala. 629 540 Smith v. Salter, 115 Ga. 286. . .233, 234 Smith v. Schlegel, 51 W. Va. 245 . . 494, 540, 545, 546 Smith v. Secor, 157 N. Y. 402. .478, 687 Smith v. Smith (1902, Neb.), 90 N. W. 560 628 Smith v. Smith, 141 N. Y. 29. .468, 473 Smith v. Smith, 5 Jones Bq. 305 .. . 675 Smith v. Smith, 8 Simons 353 687 Smith v. Smith, 108 Tenn. 21 554 Smith v. Smith, 17 Gratt. 268 500 Smith v. Tibbits, L. E. 1 P. & D. 398 136 Smith v. Towers, 69 Md. 77 609 Smith v. Webber, 1 Barn. & Aid. 713 649 Smith v. Williams, 89 Ga. 9 675 Smith v. Youngblood, 68 Ark. 255 . . 35 Smith d. Dormey v. Parkhurst, 18 Viner Abr. 413 635 Smith's Trusts, 9 Ch. D. 117 482 Smith's Will, 6 Phila. 104 -. . 238 Smith's Will, 52 Wis. 543 129, 290 Smithdeal v. Smith, 64 N. Car. 52. . 225 Smither, Matter of, 30 Hun. 632 ... 29 Smithsonian Inst. v. Meech, 169 T7. S. 398 621 Smock v. Smock, 3 Stock. 156. .355, 356 Smyth t. Smyth, 8 Ch. D. 561 502 Smythe v. Irick, 46 S. Car. 299 299 Snell, Matter of, 32 N. Y. Misc. 611. 248 Snelling's Case, 5 Coke 82b 97 Snider v. Burks, 84 Ala. 53 208, 256 Snider v. Snider, 160 N. Y. 151 452 Snow v. Foley, 119 Mass. 102 701 Snow v. Tucker, 1 Slderfin 153. . . . 571 Snowhill v. Snowhill, 3 Zeb. 447. . . 336 Snyder v. Bull, 17 Pa. St. 54 314 Snyder v. Snyder, 149 Pa. St. 362. . 719 Snyder v. Warbasse, 11 N. J. Bq. 463 168 Snyder's Appeal, 95 Pa. St. 174... 649 Soher, Estate of, 78 Cal. 477. . .270, 339 Sohier v. Inches, 12 Gray 385 672 Soileau v. Eougeau, 2 La. An. 766. 33 Soper v. Brown, 136 N. Y. 244.430, Sorrells v. Collins, 110 Ga. 518 Sorrey v. Bright, 1 Dev. & Bat. 113. 409, 521, Souder's Estate, 203 Pa. St. 293. . . Soulle v. Gerrard, Cro. Eliz. 525 . . . 572, 646, South v. Williams, 12 Simon 566. . Soward v. Soward, 1 Duvall 126 258, 259, 295, 296 Spaan v. Anderson, 115 Iowa 121 . . 543 Sparhawk v. Sparhawk, 10 Allen 155 313 445 35 671 535 649 668 Spark's Will, In re, 63 N. J. Bq. 242 191 Sparrow v. Shaw, 3 Brown P. C. 120 557 Spath v. Ziegler, 48 La. An. 1168. . 735 Spear v. Fogg, 87 Me. 132 660 Spencer, In re, 96 Cal. 448 122 Spencer v. Spencer, 21 Beav. 548 . . 518 Spencer v. Spencer, 11 Paige Ch. 159 454 Spencer v. Ward, 9 Eq. Cas. 506. . . 481 Sperling, Goods of, 3 Sw. & Tr. 272 . 298 Spink v. Lewis, 3 Brown Ch. 355 . . . 470 Spivey t. Spivey, 2 Ired. Bq. 100 . . . 487 Sponsler's Appeal, 107 Pa. St. 95 . . 697, 705 Sprague v. Luther, 8 K. I. 252. .280, 281 Spratt, In re Goods of, L. R. (1897), Prob. Div. 28 65 Sprenkle's Appeal, 15 Atl. 773 728 Sprigge v. Sprigge, L. E. 1 P. & D. 608 357 Spring v. Biles, 1 Term 435 455 Springer v. Congleton, 30 Ga. 976. . 479 Springfield, In re (1894), 3 Ch. D. 603 495 Spruance v. Darlington, 7 Del. Ch. Ill 193 Spruill v. Moore, 5 Ired. Eq. 284. . . 664 Stackhouse v. Horton, 15 N. J. Eq. 202 122, 135 Stackpole v. Beaumont, 3 Ves. 89 . . 612 Stafford v. Stafford, 28 Ch. Div. 709 151 Staines v. Stewart, 2 Sw. & Tr. 320 357 Stamford v. White (1901), P. 46. . . 359 Stamper v. Hooks, 22 Ga. 603 225 Standen v. Standen, 2 Ves. Jr. 589 . 436 Staniland v. Willott, 3 Macn. &' G. 664 40 Stanwood v. Stanwood, 179 Mass. 223 478 Staples v. Lewis, 71 Conn. 288 .... 457 Stark v. Conde, 100 Wis. 633 588, 596, 627 Starkweather v. American Bible. Soc, 72 111. 50 199, 201 Starling v. Price, 16 Ohio St. 29.'. 477 Starnes v. Hill, 112 N. Car. 1 551 Starr v. McBwan, 69 Me. 334 534 Staser v. Hogan, 120 Ind. 207 187 State v. Crossley, 69 Ind. 203 733 State v. Holmes, 115 Mich* 456 496, 497, 610 State v. Lyons, 5 Harring 196 695 State t. Warren, 28 Md. 338 439 State Bank v. Bliss, 67 Conn. 317. . 70 Stebbing v. Walkey, 2 Brown Ch. 85 . 481 Stebbins v. Stebbins, 86 Mich. 474 . . 430 TABLE OF CASES CITED. lvii [references are to sections.] Stebbins' Estate, 94 Mich. 304 163 Stedman v. Priest, 103 Mass. 293 . . 479 Steel v. Cook, 1 Mete. 281 80, 503 Steele v. Price, 5 B. Mon. 58 365 Steele v. Steele, 161 Mo. 566 5T Steele v. Thompson, 14 S. & B. 84. 539 Steib v. Whitehead, 111 111. 247... 609 Steinke's Will, 95 Wis. 121 357 Steinmetz's Estate, 194 Pa. St. 611.. 442, 665 Steinway v. Steinway, 163 N. Y. 183 683 Stellmacher v. Bruder (1903, Minn.), 95 N. W. 324 57 Stephens v. Stephens, 129 Mo. 422. . 255 Stephenson, In re (1897), 1 Ch. D. 75 417, 481, 482 Stephenson v. King, 81 Ky. 425... 27 Stephenson v. Stephenson, 62 Iowa 163 188 Stert v. Burn, 5 Bing. (n. c.) 434. 470 Stetson v. Eastman, 84 Me. 366 . . . 671 Stetson v. Stetson, 200 111. 601 . 361, 341 Stevens v. Bagwell, 15 Ves. 156 . . . 144 Stevens v. Douglass, 68 N. Hamp. 209 586 Stevens v. Hope, 52 Mich. 65 337, 357, 361, Stevens v. Leonard, 154 Ind. 67.131, 187 Stevens v. Leonard, 77 Am. St. Rep. 459 309 Stevens v. Shippen, 28 N. J. Eq. 487 387 Stevens v. Van Cleve, 4 Wash. C. C. 262 Ill Stevenson v. Abington, 31 Beav. 305 444 Stevenson v. Fox, 125 Pa. St. 568 . . 656 Stevenson v. Glover, 1 C. B. 448. . . 547 Stevenson v. Lesley, 70 N. Y. 512. . 659 Stewart v. Brady, 3 Bush. 623 607 Stewart v. Conrad, 100 Va. 128 740 Stewart v. Garnett, 3 Simons 398. . 539 Stewart v. Harriman, 56 N. Hamp. 25 314 Stewart v. Jordan, 50 N. J. Eq. 733. 171 Stewart v. Mulholland, 88 Ky. 38.. 380 Stewart v. Powell, 90 Ky. 511 380 Stewart v. Stewart, 96 Iowa 620. . . 514 Stewart v. Stewart, 177 Mass. 493. 68, 73 Stewart v. Stewart, 61 N. J. Eq. 25 . 434 Stewart v. Stewart, 15 Ch. D. 539 . . 727 Stewart's Estate, 26 Wash. 32 408 Stewart's Succession, 51 La. An. 1553 181 Stickel v. Crane, 189 111. 211.. 749, 756 Stickland v. Aldridge, 9 Ves. 516.. 173 Stickney's Will, In re, 85 Md. 79. . . • • - 199, 595, 598 Stickney's Will, 161 N. Y. 42 . . 363, 394 Stigera v. Dinsmore, 193 Pa. St. 482 551 Still v. Spear, 45 Pa. St. 168 413 Stirling v. Stirling, 64 Md. 138 273 Stivers v. Gardner, 88 Iowa 307 . . . 612 Stockbridge, Petitioner, 145 Mass. 517 , 676 Stockwell v. Bowman (1902, Ky.), 67 S. W. 379 587, 672 Stockwell v. Eitherdon, 6 Notes of Cases 409 319 Stokes v. Sprague, 110 Iowa 89. .26, 31 Stokes v. Weston, 142 N. Y. 433 656 Stone v. Franklin, 89 Ga. 195 639 Stone v. Greening, 13 Simons 390.. 503 Stone v. Lewis, 84 Va. 474 659 Stone v. Maule, 2 Simons 490 641 Stone v. Stone, 18 Mo. 389 43 Stone's Appeal, 74 Conn. 301 226 Stonehouse v. Evelyn, 3 P. Wms. 252 273 Storer v. Wheatley, 1 Pa. St. 506 . . 455 Storrs v. Benbow, 2 Mylne & K. 46 . 469, 474 Stoughtenburgh v. Hopkins, 43 N. J. Eq. 577 151 Stout v. Stout, 44 N. J. Eq. 479 521 Strain v. Sweeny, 163 111. 603 572, 640, 649 Stratton's Estate, 112 Cal. 513 258, 269 Streatley, Goods of, L. E. 16 P. D. 172 296 Strieker v. Groves, 5 Whart. 386 . . . 253 Strieker v. Oldenburg, 39 Iowa 653. 228 Strickland v. Strickland, 8 C. B. 724 345 Striewig's Estate, 169 Pa. St. 61 . . . 479 Stringer's Estate, 6 Ch. D. 1 547 Strong v. Ready, 28 Tenn. 168 479 Strong v. Smith, 84 Mich. 567 676 Strong v. Williams, 12 Mass. 390 . . 739, 740 Strong's Will, 39 N. Y. St. 852 299 Strutt v. Finck, 2 S. & S. 229 510 Stuart v. Bute, 11 Ves. 657 498, 517 Stuart v. City of Easton, 74 Fed. E. 854 203 . Stuart v. Boblnson, 80 Miss. 290. . . 751 Stubbs'v. Houston, 33 Ala. 555 369 Stumpenhousen's Estate, 108 Iowa 555 434, 544 Sturdivant v. Birchett, 10 Grat. 67 . 306 Sturge v. Great Western Ey. 19 Ch. D: 444 .' 470 Sturgis v. Work, 122 Ind. 134 336, 423, 479, 494, 516 Succession of. See name of party. lriii TABLE OP CASES CITED. [EEFEBENCES ABE TO SECTIONS.] Sugden y. Lord St. Leonards, L. R. 1 P. D. 154 357 Sullivan y. Larkin, 60 Kan. 545 ... 503, 521 Sullivan v. Latimer, 38 S. Car. 158. 740 Sullivan v. Parker, 113 N. Car. 301. 212, 442 Sullivan v. Straus, 161 Pa. St. 145. 441 Sullivan v. Sullivan, 106 Mass. 474. 208, 209 Sullivan's Estate, 130 Pa. St. 342.. 60 Summers v. Smith, 127 111. 645 .... 649, 653 Summit v. Yount, 109 Ind. 506 602 Sumner v. Crane, 155 Mass. 483 ... 52 Sumpter v. Carter, 115 Ga. 893 .552, 554, 580, 582, 584, 591, 603, 655 Sutherland v. Sydnor, 84 Va. 880.. 497, 495 Sutphen v. Ellis, 35 Mich. 446 534 Sutro's Estate, 139 Cal. 87 668 Sutton, In re, 28 Ch. D. 464 499 Sutton v. Chenault, 18 Ga. 1 405 Sutton v. Hancock, 115 Ga. 857. . . . 386, 387 Suydam v. Voorhees, 58 N. J. Eq. 157 675 Svanburg v. Fosseen, 75 Minn. 350. 53, 55 Swade's Matter (1901), 65 App. Div. N. Y. 592 36, 39 Swails v. Swails, 98 Ind. 511 371, 723, 728 Swain v. Rascoe, 3 Ired. L. 200 . . . 531 Swallow v. Swallow, 166 Mass. 241. 479 Swallow v. Swallow, 27 N. J. Eq. 278 464 Swan v. Hammond, 138 Mass. 45 . . 373 Swan v. Sayles, 165 Mass. 177.378, 406 Swarthout v. Ranier, 143 N. Y. 499 . 536 Swasey v. Jaques, 144 Mass v 135 . . . 456 Swearingen v. Inman, 198 111. 437. 189 Sweet v. Burnett, 136 N. Y. 204... 499 Sweet v. Sweet, 1 Redf. Sur. 451.. 348 Swenson's Estate, 55 Minn. 300 . . . 433, 453 Swift v. Duffleld, 5 S. & R. 38 477 Swift v. Swift, 1 DeG. F. & J. 160. 503 Swift v. Wiley, 1 B. Mon. 114. .272, 292 Swinbroad v. Bright (1901, Ky.), 62 S. W. 484 725 Swinburne's Petition, 16 R. I. 208. 656 Swinton v. Bailey, L. R. 4 App. Cas. 70 353, 358 Sykee v. Sykes, 2 Stew. 364 234 Taber v. Packwood, 2 Day 52 533 Tabor v. Mclntire, 79 Ky. 505 497 Taggart v. Ho&per, 1 Curteis 289. . 346 Taggart v. Piper, 118 Mass. 315 . . . 534 Talbot v. Field, 173 Mass. 188 504 Talbott v. Hamill, 151 Mo. 292.542, 626 Tally v. Butterworth, 18 Tenn. 501. 231 Tanner v. Wise, 3 P. Wms. 295 539 Tanton v. Keller, 167 111. 129 397, 669, 722, 727, 730 Tappenden v. Walsh, 1 Philli. 352 . . 150 Target v. Gaunt, 1 P. Wms. 432 . . . 644 Tarrant V. Backus, 63 Conn. 277.. 457 Tarver v. Tarver, 34 U. S. 174, 9 Peters 65 Tate v. Tate, 11 Humph. 465 268 Taubenham y. Dunz, 125 111. 524... 501, 520 Tawney v. Long, 76 Pa. St. 106 183 Taylor, Goods of, 63 L. T. 230 351 Taylor, In re, 34 Ch. Div. 255 444 Taylor v. Brinkley, 131 N. Car. 8.. 57 Taylor v. Cox, 153 111. 220 102 Taylor v. Fauver (1897, Va.), 28 S. E. 317 488 Taylor v. Kelly, 31 Ala. 59 171, 185 Taylor v. Lindsay, 14 R. I. 518.532, 539 Taylor v. Martin (1887, Pa.), 8 Atl. 920 546 Taylor v. Mason, 9 Wheat. 325 628 Taylor v. Meads, 69 Eng. Eq. 597.. 150, 151 Taylor v. Mills, 1 Moody & R. 288. 210 Taylor v. Mitchell, 57 Pa. St. 209. 404, 405 Taylor v. Mitchell, 87 Pa. St. 518. 53 Taylor v. Taylor, 47 Md. 295 503 Taylor v. Taylor, 2 Nott & McC. 482 361 Taylor v. Taylor, 1 Rich. L. 531... 314 Taylor v. Taylor, 63 Pa. St. 481.. 574, 633, 635, 641, 649 Taylor v. Tolen, 38 N. J. Eq. 91.. 722 Taylor v. Trich, 165 Pa. St. 586 . . 136 Taylor v. Watson, ' 35 Md. 519 454 Taylor's Appeal, 47 Pa. St. 31 237 Taylor's Estate, 154 Pa. St. 183... 29 Taylor d. Smith v. Biddall, 2/ Mod. 289 ' 572 Teackle's Estate, 153 Pa. St. 219.. 338 Teed y. Morton, 60 N. Y. 502 687 Teel v. Hilton, 21 R. I. 277 526, 527, 743 Telfair v. Howe, 3 Rich. Eq. 235.. 479 Tempest v. Tempest, 2 Kay & J. 635. 498 Temple v. Duchess of Chandos, 3 Ves. 685 369 Temple v. Mead, 4 Vt. 535 246 Temple t. Nelson, 4 Mete. 584 670 Terry v. Rodahan, 79 Ga. 278 504' Terry v. Smith, 42 N. J. Eq. 504 . . 422 Teske v. Dittberner (1902, Neb.), 91 N. W. 181 55, 57 Tevil V. Pitohsr, 10 Cal. 466... 294, 317 TABLE OF CASES CITED. lix [REFEBENCWS ABE TO SECTIONS.] Thackara v. Mintzer, 100 Pa. St. 151 609 Thayer v. Finnegan, 134 Mass. 62, 624, 749, 750, 751, 752, 753, 756 Thayer v. Spear, 58 Vt. 327 212 Thayer v. Wellington, 9 Allen 283 250, 671, 672 Theobald v. Fugman, 64 Ohio St 473 751 Thomas v. Carter, 170 Pa. St. 272. 137 Thomas v. Evans, 2 East. 487 .... 330 Thomas v. Hole, Cas. temp. Talbot. 251 455 Thomas v. Howell, 1 Salt. 170 596 Thomas v. Levering, 73 Md. 451.. 559 Thomas v. Lewis, 89 Va. 1 27 Thomas v. Thomas, 76 Minn. 237.. 359 Thomas v. Thomas, 149 Mo. 426... 468, 473, 475 Thompson, Ex parte, 4 Bradf. 154. 239 Thompson v. Beasley, 3 Drewry 7.. 447 Thompson v. Bennett, 194 111. 57.. 190 Thompson v. Churchill, 60 Vt. 371. 701 Thompson v. Davitte, 59 Ga. 472 . . 298 Thompson v. Garwood, 3 Wharton 287 473 Thompson v. Gaut, 82 Tenn. 310... 619 Thompson v. Hawks, 14 Fed. 902. . 191 Thompson v. Ish, 99 Mo. 160 . . 178, 187 Thompson v. Lawley, 5 Ves. 476 . . 503 Thompson v. Myers, 95 Ky. 597... 675 Thompson v. Swoope, 24 Pa. St. 474 201 Thompson v. Thompson, 49 Neb. 157 255, 289 Thompson v. Thompson, 13 Ohio St. 356 188 Thompson v. Waters, 25 Mich. 214. 140 Thompson v. Young, 25 Md. 450 . . .421, 481, 485, 494 Thompson, to Curzon, In re, 52 L. T. 498 539 Thompson's Estate, 133 Pa. St. 245. 352 Thompson's Trusts, 9 Ch. Div. 607. 456 Thomson v. Thomson, 155 Mo. 56 509, 511 Thorn v. Hall, 41 N. Y. S. 1054 . . . 461 Thornhill v. Thornhill, 4 Madd. 377. 692 Thornton, Goods of, L. R. 14 P. 82. 359 Thornton v. Zea, 22 Tex. Civ. App. 509 475 Thorpe v. Bestwick, 6 Q. B. Div. 311 209 Threadgill v. Ingram, 1 Ired. L. 577 649 Thresher's Appeal, 74 Conn. 40 ... . 654 Throckmorton v. Holt, 180 U. 3. 552 356, 357, 360 Thrupp v. Collertt, 26 Beav. 147 . . 460 Thurber v. Battey, 105 Mich. 718 416, 752, 755 Thwaites v. Over, 1 Taunton 263 . . 455 Thynne v. Glengall, 2 H. L. Cas. 131 731 Tibbett's Estate, 137 Cal. 123 . . 187, 190 Tichnor v. Brewer, 98 Ky. 349 446 Ticknor v. Harris, 14 N. Hamp. 283 98 Ticknor's Estate, 13 Mich. 44 439 Tidwell v. Ariel, 3 Madd. 403 683 Tiffany v. Emmet, 24 R. I. 411.689, 456 Tiffin v. Longman, 15 Beav. 275 .. . 485 Tilden v. Tilden, 13 Gray. 103 . . 699, 702 Tilden v. Tilden, 13 Gray. 110 283 Tillinghast, In re (1903, R. I.), 55 Atl. 879 531, 551 Tillinghast, In re, 23 R. I. 121.523, 712 Tillman's Estate (1892, Cal.), 31 Pac. 563 370 Tilton v. Amer. Bib. Soc, 60 N: Ham. 377 . . . ^ 437 Tilton's Petition, 11 R. I. 426 . . 543, 546 Timberlake v. Graves, 6 Munf. 174. 649 Timon v. Claffy, 45 Barb. 438 364 Tindall v. Miller, 143 Ind. 337 659 Tindall v. Tindall, 24 N. J. Eq. 512 521, 671 Tinsley v. Jones, 13 Gratt. 289 649 Tobin, In re, 196 111. 484 305, 306 Tobin v.' Haack, 79 Minn. 101.. 272, 280 Todd y. McFall, 96 Va. 754. . . 503, 754 Todd v. Sawyer, 147 Mass. 570.606, 607 Todd's Will, 2 W. & S. 145 67 Toebbe v. Williams, 80 Ky. 661 271 Tolar v. Tolar, 3 Hawks 74 502 Tolbert v. Burns, 82 Ga. 213 676 Tolson v. Tolson, 10 Gill. & J. 159. 454 Tomlin v. Hatfield, 12 Sim. Ch. 167. 486 Tonflinson v. Bury, 145 Mass. 346 . . 705 Tomlinson v. Ellison, 104 Mo. 105.18, 31 Tomlinson's Estate, 133 Pa. St 245 246, 358 Tongue v. Nutwell, 13 Md. 415.637, 672 Tookey's Trust, 21 L. J. Ch. 402 . . . 643 Toomes, Estate of, 54 Cal. 509 264, 265, 267, 283 Towle v. Swasey, 106 Mass. 100. . 743, 744 Townsend v. Bogart, 5 Redf. Sur. 93 109, 111 Townsend v. Radcliffe, 44 111. 446.. 456 Townsend v. Townsend, 156 Mass. 454 446, 454 Townsend v. Townsend, 44 Tenn. 70. 172 Townshend v. Howard, 86 Me. 285 352, 359 Towson v. Moore, 11 App. D. C. 377. 179 lx TABLE OF CASES CITED. [befeeettces aee to sections.] Tozer v. Jackson, 164 Pa. St. 373.. 60 Tracy v. Alvord, 118 Cal. 654 29 Trafford v. Ashton, 2 Vera. Ch. 660. 466 Trammel v. Trammel, 148 Ind. 487. 727 Traphagen v. Levy, 45 N. J. Eq. 448 541 Trask v. Sturges, 170 N. Y. 482 . . 546 Treasury Sol. v. Lewis (1900), 2 Ch. Div. 812 30 Trenton T. S. D. Co. v. Donnelly (1903, N. J. Eq.), 55 Atl. 92 470 Trenton T. &. S. D. Co. v. Sibbits, 62 N. J. Eq. 131 676 Trevanion, Goods of, 2 Rob. Ecc. 311 ; 294 Trevelyan v. Trevelyan, 1 Phillim. 149 355 Tribe v. Tribe, 1 Rob. Bcc. 775 .... 305 Trice v. Shipton (1902, Ky.), 67 S. W. 377 344 Trickey v. Trickey, 3 Mylne & K. 560 641 Trimmer v. Jackson, 4 Burns Bcc. L. 102 279 Trimnell, Goods of, 11 Jur. (n. s.) 248 305 Trinitarian Cong. Appellant, 91 Me. 416 208 Trost v. Dingier, 118 Pa. St. 259 . . 183 Trotter v. Oswald, 1 Cox. Ch. 317 . . 649 Trout y. Rominger, 198 Pa. St. 91 540, 544 Trower v. Butts, 1 Sim. & Stu. 181. 477 Truitt v. Cullen (1901, Del.), 50 Atl. 174 Ill Trumbell v. Gibbons, 22 N. J. L. 117 170, 180 Trustees v. Chambers, 3 Jones Bq. 253 : 199 Trustees v. Venable, 150 111. 215. . -80 Trusty v. Trusty (1900, Ky.), 59 S. W. 1094 521 Tucker v. Billing, 2 Jur. (n. s.) 483 446 Tucker v. Boston, 18 Pick. 162 .... 163 Tucker v. Moye, 115 N. Car. 71 719 Tucker v. Sandige, 85 Va. 546.... 302 Tucker v. Seaman's Aid Soc, 7 Mete. 188 439 Tucker v. Tucker, 5 Ired. L. 161 . . . 314 Tucker v. Whitehead, 59 Miss. 594 356, 357 Tucker's Will. 63 Vt. 104 470 Tuit v. Smith, 137 Pa. St. 35 57 Tuller, In re, 79 111. 99 373, 406 Tupper v. Tupper, 1 Kay & J. 665. 328 Turell, Matter of, 166 N. Y. 330.. M8 Turell, Matter of, 47 App. Div. 560. 281 Turley v. Turley, 11 Ohio St. 173 . . 446 Turner. Bx parte, 24 S. Car. 211 . . 223 Turner, Goods of, 2 P. & D. 403 . . 346 Turner, In re, 2 Dr. & Sm. 501.... 457, 472, 694 Turner v. Cook, 36 Ind. 129 279 Turner v. Gibb, 48 N. J. Bq. 526 . . 749 Turner v. Scott, 51 Pa. St. 126... 75 Turner v. Timberlake, 53 Mo. 371. 504 Turner v. Turner (1901, Ind. Ter.), 64 S. W. 543 533, 536 Turner v. Whittaker, 23 Beav. 196. 577 Turner v. Withers, 23 Md. 18 665 Turner's Appeal, 72 Conn. 305.... 183 Turnipseed v. Slrrine, 57 S. Car. 559 72 Tumour, Goods of, 56 L. T. 671.. 336 Tuttle v. Berryman, 94 Ky. 553... 250 Tuttle v. Raish, 116 Iowa 331 73 Tuttle v. Tuttle, 2 Dem. Sur. 48.. 675 Tuttle v. Woolworth, 62 N. J. Eq. 532 453, 470, 471, 655 Twitty v. Martin,. 90 N. Car. 643. 479, 668 Tyler v. Gardiner, 35 N. Y. 559. 170, 174, 178, 186, 187 Tyler v. Tyler, 19 111. 151. ... 378 Tyler v. Wheeler, 160 Mass. 206.. 151 Tynan v. Paschal, 27 Texas 286 . . 330 Tyrone v. Waterford, 1 DeG. F. & J- 613 5 oi Tyson's Estate, 191 Pa. St. 218. 536, 537 Tytherleigh v. Harbin, 6 Simons 329 6 87 Ulrich's Appeal, 86 Pa. St. 386 494 Underwood v. Cave (19,03, Mo.), 75 S. W. 451 494, 543, 546 Underwood v. Thurman, 111 Ga. 325 188 Union Trust Co. v. St. Luke's Hos- pital, 74 N. Y. App. Div. 330 437 U. S. v. Fox, 94 U. S. 315 .. . 193, 201 United States T. Co., Matter of, 26 N. Y. Misc. 378 445 U. S. Trust Co v. Lee, 73 111. 142 . . 202 University Trustees' Appeal, 97 Pa. St. 187 '.,. 668 Upchurch v. Upchurch, 16 B. Mon. 102 299 Updegraff v. McCormick, 199 Pa. St. 590 506 Updike v. Thompson, 100 111. 406.. 523 Upham's Estate, 127 Cal. 90 672 Upington v. Corrigan, 151 N. Y. 143. 80 ' Urie \. Irvine, 21 Pa. St. 310.... 481 Utley v. Titcomb, 63 N. Hamp. 129. 697 Utterson v. Utterson, 3 Ves. & Beam. 122 346 Utterton v. Robbins, 1 Ad. & El. 423 395 Valentine's Will, 93 Wis. 45 . . . 357, 3«» TABLE OF CASES CITED. Ixi [BEFEBENCES ABE TO SECTIONS.] Van Alst t. Hunter, 5 Johns. Ch. 148 Ill Van Alstyne v. Van Alstyne, 28 N. Y. 375 523 Van Beuren v. Dash, 30 N. Y. 393. . 674 Van Brunt v. Van Brunt, 111 N. Y. 178 465 Vandemark v. Vandemark, 26 Barb. 416 371 Vanderveer, Matter of, 20 N. J. Eq. 463 170 Vandeveer v. Higgins, 59 Neb. 333 373, 374 Vandevort, Matter of, 62 Hun 612. 625 Vandezeur v. Gordon, 39 Vt. 111.. 238. Vandiver v. Vandiver, 115 Ala. 328. 507 Van Hanswyck v. Wiese, 44 Barb. 494 255 Vanhille, Succession of, 49 La. An. 107 269 Van Home v. Campbell, 100 N. Y. 287 547 Van Hauten v. Post, 32 N. J. Eq. 709 731 Van Houten v. Post, 33 N. J. Eq. 344 721, 727, 733 Vanluven v. Allison (1901), 2 On- tario D. R. 198 653 Van Nostrand v. Board of D. M. R. C. A., 59 N. J. Eq. 19 : . . 437 Van Syckel v. Van Syckel, 51 N* J. Eq. 194 464 Van Tilburgh v. Hollinshead, 1 MeCart. 32 400 Van Wickle v. Van Wickle, 59 N. J. Eq. 317 162, 383, 385 Van Winkle v. Van Houten, 3 N. J. Eq. 172 750, 753 Varley t. Winn, 2 Kay & J. 700 . . 695 Varnon v. Varnon, 67 Mo. App. 534. 359 Varrell v. Wendell, 20 N. Ham. 431. 455 Vaughan v. Vaughan, 97 Va. 322 . . 659 Vedder, In re, 6 Dem. Sur. 92 127 Verdier v. Verdier, 8 Rich. L. 135 . . 279, 290, 389 Vernon v. Fisher, Brightly, 412... 481 Vernon v. Jones, Freem. Ch. 117 . . 369 Vernon v. Kirk, 30 Pa. St. 218.255, 265 Vernor v. Henry, 6 Watts 192 481 Vestal v. Garrett, 197 111. 398.. 336, 514 Vestry v. Bostwick, 8 D. C. App. Cas. 452 242, 250 Vidal v. Girard, 2 How. 127 193, 198, 200, 202, 203, 629 Viele v. Keeler, 129 N. Y. 190 336 Vincent v. Newhouse, 83 N. Y. 505. 488 Viner v. Francis, 2 Cox. Ch. 190.. 479 Vines v. Clingfost, 21 Ark. 309 255 Vining v. Willis, 40 Kan. 609 101 Virgin v. Gaither, 42 111. 39 35, 42 Vivian's Appeal, 74 Conn. 257 188 Vogel v. Lehritter, 139 N. Y. 223. 294, 295, 297 Voorhis, Matter of, 125 N. Y. 765. 285 Vrooman v. P«wers, 47 Ohio St. 191 230, 311 Waddington v. Buzby, 45 N. J. Eq. 173 Ill, 191 Wade v. Dean, 43 S. W. 441 740 Wagner v. Varner, 50 Iowa 532 . . 8 Wait v. Belding, 24 Pick. 129... 524, 525, 539 Wainwright v. Tuckerman, 120 Mass. 232 698 Wainwright's Appeal, 89 Pa. St. 220 182 Waite v. Frisbie, 45 Minn. 361 . . . 267 Wakefield v. Phelps, 37 N. Ham. 295 404, 405 Walch v. Sexton, 55 Barb. 251 ... 28 Walcott v. Ochterlong, 7 Curteis 580 330 Walcott v. Walcott, 140 Mass. 194. 172 Wales v. Bowdish, 61 Vt. 23 609 Wales v. Templeton, 83 Mich. 177. Ell Walke v. Moore, 95 Va. 720 504 Walker, In re (1897), 2 Ch. D. 238 445 Walker v. Atmore, 50 Fed. 644. . . 749 Walker v. GrifBn, 24 U. S. 375 . . . 454 Walker v. Hall, 34 Pa. St. 483... 386 Walker v. Johnston, 70 N. Car. 576 467, 475 Walker v. Milligan, 45 Pa. St. 178 641 Walker t. Shore, 15 Ves. 122 476 Walker v. Skeene, 40 Tenn. 1 210 Walker v. Walker, 67 Miss. 529.. 305 Walker v. Walker, 14 Ohio St. 157 70 Walker v. Webster, 95 Va. 377.485, 489 Walker's Estate, 110 Cal. 387 298 Wall v. Wall, 30 Miss. 91 73 Wall's Appeal, 111 Pa. St. 460 .... 54 Wallace v. Dubois, 65 Md. 153.. 673, 675, 723 Wallace v. Minor, 86 Va. 550 449 Wallace v. Smith (1902, Ky.), 68 S. W. 131 607 Wallach v. Van Riskirk, 92 U. S. 202 143 Waller, In re, 68 L. J. Ch. 526 . . 437 Waller v. Waller, 1 Grat. 454 . .'. . 269 Wallis v. Taylor, 8 Simons 241... 458 Wallis V. Wallis, 114 Mass. 510.. 328 Wallize v. Wallize, 55 Pa. St. 242. 160 Wallop, Ex parte, 4 Brown C. C. 90 170 Walls v. Walls, 182 Pa. St. 226 523 Wain's Estate, 156 Pa. St. 194 671 Walpole v. Orford,' 3 Ves. 402.. 395, 396 Walsh v. McCutcheon, 71 Conn. 283. 656 lxii TABLE OF CASES CITED. rREFEBENCES ABE TO SECTIONS.] Walsh v. Walsh, Pinch's Prec. Ch. 54 486 Walsh's Appeal, 122 Pa. St. 177.. 28 Walter v. Ford, 74 Mo. 195 31 Walter's Estate, 197 Pa. St. 555 624, 754, 756 Walter's Will, 64 Wis. 487 245 Walton v. Kendrick, 122 Mo. 504. 265, 267 Walton v. Walton, 7 Johns Chy. 258 368 Walton's Estate, 194 Pa. St. 528.. 187 Walts v. Walts, 127 Mich. 607.. 187, 190 Ward v. Board of Com'rs (1902, Okl.), 70 Pac. 378 172, -287 Ward v. Bush, 59 N. J. Eq. 144. . 668 Ward v. Stow, 2 Dev. Eq. 509 486 Ward v. Tomkins, 30 N. J. Eq. 3 . . 475 Ward v. Turner, 2 Ves. Sr. 431.26, 29 Ward's Will, 70 Wis. 251 373 Wardwell v. Wardwell, 91 Mass. 518 (9 Allen) 68 Ware v. Murph, 1 Rice L. 54.... 539 Ware v. Wisner, 50 Fed. Hep. 310. 381 Waring v. Edmonds, 11 Md. 424.. 27 Warnecke v. Lembca, 71 111. 91... 457 Warner v. Beach, 4 Gray. 162 .... 389 Warner v. Rice, 66 Md. 436 454 Warner v. Warner, 37 Vt. 356 352 Warner v. Willard, 54 Conn. 470 . . 500 Warner's Appeal, 39 Conn. 253... 479 Warner's Exrs. v. Swearingen, 36 Ky. 6 Dana 195 , . 87 Warren v. Baxter, 48 Me. 193.210, 310 Warren v. Durfee, 126 Mass. 338. 54 Warren v. Harding, 2 R. I. 133 . . . 239 Warren v. Taylor, 56 Iowa 182 . . 369, 389 Warren v. Prescott, 84 Me. 483 . . . 674 Warwick v. Hawkins, 5 DeGex £ S. 481 701 Warwick v. Warwick, 86 Va. 596. 257 Washbon v. Cope, 144 N. Y. 287 . . 656 Washington & L. Univ. App., Ill Pa. St. 572 437 Waterman v. Alden, 143 U. S. 196. 736 Waterman v. Greene, 12 R. I. 483. 539, 540 Waterman v. Hawkins, 63 Me. 156. 386 Waterman v. Whitney, 11 N. Y. 157 357 Waters v. Reed, 129 Mich. 131 182 Watkins, Goods of, L. R. 1 P. & D. 19 250 Watkins v. Lea, 6 Ves. 633 503 Watkins v. Snadon, 93 Ky. 501... 421 Watkins v. Williams, 3 Macn. & G. 622 537 Watson v. Child, 9 Rich. Eq. 129.. 88 Watson v. Lincoln, Ambler 325... "25 Watson v. Pipes, 32 Miss. 451 . . . 279, 303 Watson v. Watson, 33 Beaven 574 726, 733 Watson v. Williamson, 129 Ala. 362. 551 Watts v. Cole, 2 Leigh 653 81 Waugh v. Riley, 8 Mete. 290 140 Wead v. Gray, 78 Mo. 59 547 Weakley v. Hanna (1899, Ky.), 51 S. W. 570 655 Webb v. Archibald, 128 Mo. 299. 496, 501, 508, 526, 527 Webb v. Carney (1895, N. J. Ch.), 32 Atl. 705 506 Webb v. Carpenter, 16 R. I. 68 336 Webb v. Day, 2 Dem. Sur. 459 .... 250 Webb v. Fleming, 30 Ga. 808. 273, 290 Webb v. Hitchins, 105 Pa. St. 91 . . 440 Webb v. Jones, 36 N. J. Eq. 163.. 373 Webb v. Temple, 1 Freem. K. B. 542 369 Webber v. Jones, 94 Me. 429 475 Webber v. Stanley, 16 C. B. 698 . . 508 Webber v. Webber, 108 Wis. 626.. 656 Webster v. Cooper, 14 How. 488 . . 628 Webster v. Lowe (1899, Ky.), 53 S. W. 1030 269 Webster v. Morris, 66 Wis. 366... 437 Webster v. Webster, 105 Mass. 538. 389 Webster -v. Welton, 53 Conn. 183 . . 475 Webster v. Wiers, 51 Conn. 569... 517 Webster v. Wiggin, 19 R. I. 73.203, 503 Webster v. Yorty, 194 111. 408.189, 283 Weed v. Scofield, 73 Conn. 670.437, 521 Weeden, Matter of, 37 Misc. 716. . 536 Weeden v. Bartlett, 6 Munf. 123 . . 231 Weeks v. McBeth, 14 Ala. 474 357 Weems v. Weems, 19 Md. 334.. 225, 230 Weigall v. Brome, 6 Simons 99 ... . 503 Weiss, In re, 78 N. Y. S. 877 725 Welborn v. Townsend, 31 S. Car. 408 529 Welcden v. Elkington, 3 Dyer 358b. 570 Welch v. Adams, 63 N. Ham. 344. 273, 279 Weld v. Bradbury, 2 Vern. Ch. 705. 468 Weller v. Nofisinger, 57 Neb. 455. 608, 609 Weller v. Weller, 22 Tex. Civ. App. 247 441 Weller's Succession, 107 La. 466. . 535 Wellford v. Snyder, 137 U. S. 521. 530 Welling v. Owings, 9 Gill. 467 237 Wellington v. Apthorp, 145 Mass. 69 53, 55 Wellington v. Drummer, 69 N. Hamp. 295 461 Wellington v. Wellington, 1 Wm. Bl. 645 645 TABLE OF CASES CITED. Lxiii [references are to sections.] Wellons v. Jordan, 83 N. Car. 371 595, 599, 624 Wells, In re, 113 N. Y. 396 428, 668, 682 Wells v. Anderson, 69 N. H. 561. .. 497 Wells v. Wells, 35 Miss. 638 369 Wells v. Wells, 4 T. B. Mon. 152... 355 Wells v. Wells, L. R. 18 Eq. Cas. 504 444 Welsh, In re, 1 Redf. 238 170 Welsh v. Pounders, 36 Ala. 668 371 Wenmoth, In re, 37 Ch. D. 266.469, 475 Wenning v. Teeple, 144 Ind. 189.. 165 Wentworth v. Fernald, 92 Me. 282. 416 Wentworth v. Shibles, 89 Me. 167. 24 Wescott v. Higgins, 42 App. Div. 69 689 West, Ex parte, 1 Bro. Ch. 575 664 West v. Lawday, 11 H. L. Cas. 375. 508 West v. Moore, 37 Miss. 114 627 West y. Rassman, 135 Ind. 278. . . . 442 West v. Shuttleworth, 2 Mylne & K. 684 196 West v. West, 10 Serg. & R. 447. . 150 West v. West, 89 Ind. 529 672, 674 Westcott v. Binford, 104 Iowa 645. 551 Wester v. Wester, 5 Jones L. 95... 231 Westerlo v. DeWltt, 36 N. Y. 340.. 28 Weston v. Poster, 7 Mete. 297 . . 475, 486 Weston v. Hight, 17 Me. 287 40 Weston v. Johnson, 48 Ind. 1 . . 726, 728, 730 Weston v. Weston, 38 Ohio St. 473 . 450 Westwood v. Southey, 17 Simons, Ch. 192 643, 649 Wetherall v. Harris, 51 Mo. 65 163 Wetmore v. St. Luke's Hospital, 56 Hun 313 521 Wettach v. Horn, 201 Pa. St. 201. 674, 682 Wetter v. Walker, 62 Ga. 142... 456, 543 Weybright v. Powell, 86 Md. 573. .. 639 Whall t. Converse, 146 Mass. 345.. 582 Wheatland v. Dodge, 10 Mete. 502. 553 Wheedon v. Lea, 3 Term 41 586 Wheeler, Goods of, 49 L. J. P. 29.. 355 Wheeler, In re, 32 N. T. App. D. 183 439 Wheeler v. Allan, 54 Me. 232.. 685, 691 Wheeler v. Bent, 7 Pick. 61 355 Wheeler v. Brewster, 68 Conn. 177. 527 Wheeler v. Wheeler, 1 R. I. 364 . . . 377 Wheeler v. Whipple, 44 N. J. Eq. 141 191 Wheeler v. Wood, 104 Mich. 414. 705, 708 Whelan v. Reilly, 3 W. Va. 597 454 Whitaker v. Ambler, 1 Eden 151 .. . 503 Whitchurch v. Whitchurch, 2 P. Wms. 236 243 Whltcomb v. Rodman, 156 111. 116. 421, 496, 514 White, Goods of, L. R. 3 Ir. 413 . . 351 White, Matter of, 10 E. C. Gr. 501 356, 357 White v. Baker, 2 DeGex P. & J. 55 660 White v. Barford, 4 Maule & S. 10. 381 White v. Casten, 1 Jones L. 197.. 348, 350 White v. Cole (1898, Ky.), 47 S. W. 759 191 White v. Hicks, 33 N. T. 383 504 White v. Holland, 92 Ga. 216 488 White v. Howard, 46 N. T. 144 400 White v. Howard, 38 Conn. 342 . . . 201 White v. Keller, 68 Fed. R. 797... 501 White v. Mass. Inst. Tech., 171 Mass. 84 444, 461, 467, 677 White v. Repton, 3 Curt. 818 238 White v. Stanfleld, 146 Mass. 424. 453, 485 White v. Trustees British Museum, 6 Bing. 310 279, 280 White v. White, Willes 348 641 White v. White, 52 Conn. 518.. 539, 540 White v. White, 30 Vt. 338 609 White v. White, 7 Ves. 423 455 White v. Winchester, 6 Pick. 48.. 705, 711 White's Exrs. v. White, 30 Vt. 338. 454 White's Will, 121 N. T. 406 131 White's Will, 25 N. J. Eq. 501 352 Whitebread v. St. John, 10 Ves. 152 473, 475 Whitelaw v. Whitelaw, L. R. Ir. 5 Ch. 120 644 Whiteman v. Whiteman, 152 Ind. 263 159 Whiteside v. Cooper, 115 N. Car. 570 581, 665 Whitfield v. Garriss, 131 N. Car. 148 540 Whiting, In re, 33 N. Y. Misc. 274 461, 671 Whitney, Matter of, 153 N. Y. 259 248, 259 Whitney v. Dodge, 105 Cal. 192... 409 Whitney v. Olney, 3 Mason 281 506 Whiton v. Whiton, 179 111. 32... 55, 56 Whittaker v. Whittaker, 4 Brown Ch. 31 503 Whittemore v. Bean, 6 N. Hamp. 47 81, 83 Whittemore v. Russell, 80 Me. 297 163, 533, 534 Whittington's Succession, 26 La. An. 89 255 Whyte v. Pollock, 7 App. Cas. 400 59, 62 lxiv TABLE OF CASES CITED. [REFERENCES ABE TO SECTIONS.] Wickes' Estate (1903, Cal.), 72 Pac. 902 191 Wicoff's Appeal, 15 Pa. St. 128 .. . 395 Wigan v. Rowland, 11 Hare 157... 210 Wigg v. Wigg, 1 Atk. 382 670 Wikoff's Appeal, 15 Pa. St. 281 248 Wllbourn v. Shell, 59 Miss. 205 .. . 359 Wilcox v. Matteson, 53 Wis. 23. . . . 31 Wilcox y. Wilcox, 13 Allen 252. . .'. 705 Wild's Case, 6 Coke 17a 552, 553 Wildberger v. Cheek, 94 Va. 517.. 441, 482, 676, 677 Wilder v. Goss, 14 Mass. 357 163 Wilder v. Holland, 102 Ga. 44 497 Wiley v. Gregory, 135 Ind. 647 543 Wiley's Estate, 187 Pa. St. 82... 225, 229, 233, 234 Wilhelm v. Calder, 102 Iowa 342. .. 587 Wilkerson v. Clark, 80 Ga. 367 551 Wilkins v. Ordway, 59 N. Ham. 378 450 Wilkins v. Wilkins, 43 N. J. Eq. 595 720 Wilkins v. Young, 144 Ind. 1 79 Wilkinson v. South, 7 Term 555 .. . 649 Wilkinson v. Wilkinson, 12 Eg. Cas. 604 626 Wilkinson's Estate, 192 Pa. St. 127. 499 Wilks v. Bannister, 30 Ch. Div. 512 444 Will of, see name of party. Willard v. Darrah, 168 Mo. 660... 428, 436, 437 Willard's Estate, 68 Pa. St. 327. . . 386 Willey's Estate, 128 Cal. 1 249, 278 The William Bagaley, 72 U. S. (5 Wall.) 377 139 Williams v. Allen, 17 Ga. 81 495 Williams v. Brice, 201 Pa. St. 595 510, 527, 528 Williams v. Cowden, 13 Mo. 211... 611 Williams v. Duncan, 92 Ky. 125... 552 Williams v. Guile, 117 N. Y. 343.. 31, 35, 36 Williams v. Jenkins (1893), 1 Ch. D. 700 625 Williams v. Jones, 166 N. Y. 522.. 600 Williams v. Knight, 1? R. I. 333.. 457, 682 Williams v. McKeand, 119 Mich. 507 520, 521, 527 Williams v. Miles (1903, Neb.), 94 N. W. 705 ... 287, 337, 356, 357, 362 Williams v. Nichol, 47 Ark. 268... 756- Williams v. Noland, 10 Tex. Civ. App. 629 68 Williams v. Tyley, Johns. Eng. Ch. 530 351 Williams v. Williams, h. R. 20 Ch. Div. 659 49, 68 Williams v. Williams, 189 HI. 500 516, 749, 751 Williams v. Williams, 142 Mass. 515 362 Williams' Estate, 106 Mich. 490. . . 55 Williamson v. Chamberlain, 10 N. J. Eq. 373 655, 660 Willing v. Baine, 3 P. Wms. 113. .. 695 Willis V. Mott, 36 N. Y. 486 290 Willis v. Mott, 36 N. Y. 497 281 Willis's Will (1903, R. I.), 55 Atl. 889 507 Willock v. Noble, L. R. 7 H. L. 580 144, 146, 147, 148 Wills v. Cooper, 25 N. J. L. 137. . . 503 Wills v. Wills, L. R. 20 Eq. Cas. 342 577 Wills V. Wills, 85 Ky. 486 654 Wilmot v. Wilmot, 8 Ves. 10 665 Wilson, Goods of, L. R. 1 P. & D. 269 294 Wilson v. Alston, 122 Ala. 630 551 Wilson v. Carrico, 140 Ind. 533... 24 Wilson v. Curtis, 90 Me. 463 542 Wilson v. Posket, 6 Mete. 400.. 161, 163 Wilson v. Poss (1902, Neb.), 89 . N. W. 300 749, 756 Wilson v. Hays (1900, Ky.), 58 S. W. 773 60 Wilson v. Jourdan, 79 Miss. 133.. 24, 36 Wilson v. Moran, 3 Brad. Sur. 172. 187 Wilson v. Ott, 160 Pa. St. 433 383 Wilson v. Smith, 117 Fed. 707. . . . 723 Wilson v. Wilson, 46 N. J. Eq. 321 633, 649 Winchester v. Porster, 3 Cush. 366. 526 Winchester v. Hoover, 42 Ore. 310. 543 Wind v. Jekyl, 1 Peere Wms. 575 87, 524 Windham v. Chetwynd, 1 Burr. 414. 205 Wineland's Appeal, 118 Pa. St. 37.. 259 Wingrove v. Wingrove, 11 Prob. Div. 81 175 Winn, In re Goods of, 2 Sw. & Tr. 147 6 e Winn v. Littleton, 1 Vern. 3 503 Winne v. Winne, 166 N. Y. 263... 57 Winslow, Appellant, 14 Mass. 422. 243, 321 Winslow v. Goodwin, 48 Mass. 363 (7 Mete.) so Winslow v. Kimball, 25 Me. 492 . . . 209 Winter, In re, 114 Cal. 186 660 Winter v. Perratt, 5 Barn. & C. 48. 542 Wise v. Foote,. 81 Ky. 10 175 Wise v. Leonhardt, 128 N. Car. 289 468, 476 Wise's Estate, 188 Pa. St. 258 754 Wistar v. Scott, 105 Pa. St. 200. . 445 TABLE OF CASES CITED. lXY [references are to sections.] Witherspoon v. Brokaw, 85 Mo. App. 169 211 Witherspoon v. Witherspoon, 2 Mc- Cord 520 75 Withy v. Mangles, 10 CI. & Fin. 215 456 Witt v. Gardiner, 158 111. 176 305 Wittman v. Goodhand, 26 Md. 95 175, 326, 344 Woelpper's Appeal, 126 Pa. St. 526. 659 Wogan v. Small, 11 S. & B. 141 .. . 389 Wolf v. Bollinger, 62 111. 368 359 Wolf v. Schoeffner, 51 Wis. 53 499 Wolfer v. Hemmer, 144 111. 554.. 546, 547 Wolfer's Estate (1899, Pa.), 43 Atl. 392 756 Wqlffe v. Loeb, 98 Ala. 426 387 Woman's Foreign Missionary Soc. v. Mitchell, 93 Md. 199 437 Woman's Union M. S. A. v. Mead, 131 111. 338 526 Wombacher v. Barthelme, 194 111. 425 170 Wood v. Bullard, 151 Mass. 324. 470, 452 Wood v. Carpenter, 166 Mo. 465... 165 Wood v. Hammond, 16 E. I. 98. . . . 199 Wood v. Lane, 102 Ga. 199 Ill Wood v. McGuire, 15 Ga. 202 468 Wood v. Mitcham, 92 N. X. 375 .. , 444 Wood v. Eobertson, 113 Ind. 323.. 488 Wood v. Seaver, 158 Mass. 411 682 Wood t. Wood, 3 Hare 65 454 Wood v. Wood, 63 Conn. 324 454 Wood v. Zibble (1902, Mich.), 92 N. W. 348 187, 188 Woodburn v. Woodburn, 123 111. 608 28, 31 Woodbury v. Woodbury, 141 Mass. 329 34 Woodcock v. Woodcock, Cro. Eliz. 795 570 Woodflll v. Patton, 76 Ind. 575. 352, 353, 354 Woodhouse v. Meredith, 2 Maule & S. 5 395, 397 Woodruff v. Hundley, 127 Ala. 640 248, 273, 287, 343 Woods, Goods of, L. E. 1 P. & D. 556 259 Woodside's Estate, 188 Pa. St. 45 518, 520 Woodward, Goods of, L. E. 2 P. & D. 206 356, 358 Woodward, In re, 117 N. X. 522. . . 444 Woodward v. James, 115 N. X. 346. 485 Woodworth's Estate, 31 Cal. 595. 704, 747 Wooldrodge v. Hancock, 70 Tex. 18. 226 Wooley v. Paxson, 46 Ohio St. 307 576, 676 Wooster v. Cooper, 53 N. J. Eq. 682 536, 543 Wootton v. Eedd, 12 Gratt. 196... 417 Worchester v. Worchester, 101 Mass. 128 468 Word v. Whipps (1894, Ky.), 28 S. W. 151 255 Wordsworth v. Wood, 1 H. L. Cas. 129 660 Worlidge v. Churchill, 3 Brown Ch. 465 664 Worsley v. Johnson, 3 Atkyns 758. 455 Wright v. Atkins, 17 Ves. 255..... 454 Wright v. Denn, 10 Wheat. 204... 539 Wright v. Lord Codogan, 2 Eden 239 150 Wright v. Mayer, 47 N. X. App. Div. 604 212 Wright t. Wakeford, 17 Ves. 454.. 256 Wright v. Wright, 5 Ind. 389 . . . 262, 293, 394 Wrightson v. Calvert, 1 Johns. & H. Ch. 250 482 Wrigley's Estate, 32 Ontario 108.. 682 Wuesthoff v. Germania Life Ins. Co., 107 N. X. 580 261 Wyatt v. Berry, L. E. 18 P. D. 5 . . 290 Wyche v. Clapp, 43 Tex. 543.. 70, 71, 72 Wyckoff v. Perrine, 37 N. J. Eq. 118 705, 711 Wylie v. Lockwood, 86 N. Y. 291 . . . 665 Wyman v. Johnson, 68 Ark. 369. 468, 470 Wyman v. Symmes, 10 Allen 153. . 314 Wyndham v. Chetwynd, 1 Burrows 414 215, 275 Wynn v. Wynn, 112 Ga. 214.... 73, 75 Wynne v. Wynne, 2 Swan 404 . . , 526, 529 Wynne v. Wynne, 23 Miss. 251.. 408, 526 Yancey v. Field, 85 Va. 756 26 Xardley v. Cuthbertson, 108 Pa. St. 395 191 Xarnall's Will, 4 Eawle 46 231, 233, 234 Yates v. Shern, 84 Minn. 161 428 Yearance v. Powell, 55 N. J. Eq. 577 742 Yeates v. Gill, 9 B. Mon. 203.. .443, 676 Yeates v. Shern, 84 Minn. 161 . .442, 691 Yeaton v. Eoberts, 28 N. Ham. 459 476, 576 Yeats v. Yeats, 16 Beav. 170 481 Xerby v. Xerby, 3 Call. 334 377 Xetzer v. Brisse, 190 Pa. St. 346 . . 544, 543 Yocum v. Siler, 160 Mo. 281 540 lxvi TABLE OP CASES CITED. [references are to sections.] Yost v. McKee, 179 Pa. St. 381.494, 607 Young v. Alford, 118 N. Car. 215 268, 269 Young v. Davles, 2 Drew. & S. 167. 447 Young v. Ins. Co., 101 Tenn. 311. .. 545 Young v. Mallory, 110 Ga. 10 165 Young v. Robertson, 8 Jur. (n. s.) 825 660 Young v. Robinson, 11 Gill. & J. 328 676 Young's Appeal, 39 Pa. St. 115... 384 Young's Appeal, 83 Pa. St. 59 487 Young's Estate, 123 Cal. 337 165, 250, 413, 422, 496 Younger v. Duffle, 94 N. Y. 535 . . . 259 Youse y. Forman, 5 Bush. 337.... 359 Zabriskie v. Huyler, 62 N. J. Eq. 697 „ 682 Zelgler v. Eckert, 6 Pa. St. 13.. 735, 737 Zelle, In re, 74 Cal. 125 697 Zeller v. Jordan, 105 Cal. 143 35 Zerbe v. Zerbe, 84 Pa. St. 147 500 Zerega y. Perclvll, 46 La. An. 590.. 270 Zeust v. Staffan, 16 App. Cas. D. C. 141 151 Zillmer v. Landguth, 94 Wis. 607. . 607 Zimmerman y. Hafer, 81 Md. 347.. 495 Zimmerman y. Schoenfeldt, S Hun 692 107. 151 Zimmerman y. Zimmerman, 23 Pa. St. 375 369 Zlrkle y. Leonard, 61 Kan. 636... 514 WILLS AND ADMINISTEATION. CHAPTER I. ORIGIN AND NATURE OF PROPERTY AND SUC- CESSION. 1. Philosophy of Property and Suc- § 8. Appointing and Enjoying > cession. Succession are of Grace § i. Forecast. — Power to Tax. § 2. Foundation of Man's Es- 2. History of Property Transfers by tate. Tradition and Succession. § 3. Foundation of Individual § 9. Supposed Order of Estab- Ownership. lishment. § 4. Some Grounds of Opposi- § 10. Prehistoric Origin. tion. § 11. Mosaic Law. § 5. Theory of Sale and §12. Egyptian and Greek Transfer. Wills. § 6. Theory of Intestate Sue- 3. Outline of the Subject. cession. § 13. Methods of Transfer. § 7. Why the State Interferes. § 14. Plan of Treatment. 1. PHILOSOPHY OP PEOPEETY AND SUCCESSION. § 1. Forecast. If a man die owning property, what shall be done with it? That is the question this book is written to answer. The Law of Succession may be de- fined as that body of law which determines the disposi- tion of property after the death of the owner. Before entering on the study of the law of this sub- ject, the student can well afford to pause a moment to contemplate the foundation of property rights; and ask whether, and if so, why, the state should recognize any estate as lasting longer than the owner lives. §2. Foundation of Man's Estate. Man's ownership of the world is said to come by direct gift from the Cre- ator, as to which the Bible declares that He gave to man "dominion over all the earth, and over the fish of the sea, over the cattle, and over the fowl of the air, and over every living thing that moveth upon the earth." l §§ 3-4 OEIGIN AND NATURE OF PROPERTY. Q But power makes right in most things, and if we could read the inspired scriptures written by the fish of the sea and the fowl of the air, the story might run differ- ently. § 3. Foundation of Individual Ownership. The right of individual persons to exercise dominion over specific movables and parcels of land, to the exclusion of all other persons, is asserted on three grounds, namely: 1, the act of such individuals in first taking exclusive pos- session of such specific parcels of land or movables; 2, their improvement of those specific parcels of land and movables by their personal skill and labor; and, 3, that peace in society and incentive to labor could not be maintained without such exclusive dominion. §4. Some Grounds of Opposition. In opposition to the first and second of these grounds, it has been said, that he who takes the property of others (in this case the property of the whole public) and improves it, ac- quires no rights against the owners either by the taking or the improvement; and that the owners may retake it in its improved condition, and usually without com- pensating for the improvement. And such is the law. It has been further said that the claim is inconsistent with the law which allows the exclusive dominion over an entirely new creation for only a limited time; as is the law concerning patents and copyrights on inventions, literary compositions, works of art, etc. As to the third ground, it has been said that any man would rather work than starve, that those who have the most, often work the least and set bad examples, and that more secure peace and less oppression would exist under public than under private ownership. To pass judgment upon these opposing claims, or to enter upon any extended discus- sion of them would be beyond the scope of this work. They are mentioned here only because a true understand- ing of the law of property, which we are discussing, could not be obtained without some notion of the foundation on 3 ORIGIN AND NATURE OF PROPERTY. §§ 5.6 which the title rests. With this explanation it is suf- ficient to say that governments in general grant titles on these foundations and protect them. 1 § 5. Theory of Sale and Transfer. Such being the basis of ownership, let us see how long it could endure and how it could be transferred from one person to an- other. Property being acquired in the first place by the mere act of taking possession, the estate would be equally lost by an abandonment of possession. "If I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property; and Titius, being the only or the first man acquainted with my intention, immediately steps in and seizes the vacant possession: thus the consent expressed by the conveyance gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides." 2 § 6. Theory of Intestate Succession— Duration of Ownership. "The most universal and effectual way of abandoning property is by the death of the occupant: when, both the actual possession and intention of keep- ing possession ceasing, the property which is founded upon such possession and intention ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him: which would be highly absurd and inconvenient. All property must, therefore, cease upon death, considering men as abso- lute individuals, and unconnected with civil society: for, then, by the principles before established, the next im- mediate occupant would acquire a right in all ^ that the deceased "possessed. ' ' 3 1 Those interested in a further dis- Bellamy, Richard T. Ely, or any work cussion of the subject will find it in the on political economy, writings of John Stewart Mill, Henry 2 Bl. Com. *10. George, Francis A. Walker, Edward s Bl. Com. *10. §§ 7-9 ORIGIN AND NATUBE OF PROPERTY. 4 § 7. Why the State Interferes. "But as, under civil- ized governments, which are calculated for the peace of mankind, such a constitution would be productive of end- less disturbances, the universal law of almost every na- tion (which is a kind of secondary law of nature) has either given to the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the suc- cessor, representative, or heir of the deceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion." 4 §8. Appointing and Enjoying Succession Are of Grace— Power to Tax. From what has been said it will be seen that the liberty of willing and inheriting prop- erty is a mere matter of grace, allowed by the state for practical reasons. "The right to take property by de- vise or take property by descent is the creature of the law, and not a natural right— a privilege, and, therefore, the authority which confers it may impose conditions upon it. From these principles it is deduced that the states may tax the privilege, discriminate between rela- tives, and between these and strangers, and grant excep- tions; and are not precluded from this power by the provision of the respective state constitutions requiring uniformity and equality of taxation." 5 2. HISTORY OF PBOPERTY TRANSFERS BY TRADITION AND SUCCESSION. § 9. Supposed Order of Establishment. It has been supposed that all movables which would please the fancy or serve the needs of men were appropriated by 4 2 Blackstone's Com. *10. 41. See also, Wagner v. Varner (1879), 5 Magoun v. Illinois Trust & Savings 50 Iowa, 532, Abbott Cas. p. 123. See Bank (1898), 170 U. S. 283, 288; also, notes on Inheritance Taxes, 5 Knowlton v. Moore (1900), 178 U. S. Pz °- R - ■*■• 44 " 51 '• 2 Pro - »• A - 38-45. 5 ORIGIN AND NATTJKE OF PROPERTY. §§ 10 11 individuals, and their claims of exclusive ownership recognized, long before anyone conceived the idea of claiming to own the earth itself, or staking off any part of it, and saying to the rest of his kind, Keep off, this is mine. It is also very probable that transfers of chattels were common before transfers of land were thought of; and that trading in both was introduced before claims to either by succession were allowed. Also, that succes- sion by inheritance and distribution was well established much earlier than the right of the owner to dispose by will. These conjectures have been supported by very good reasoning; 8 but it is well to remember that they are principally mere speculation. § 10. Prehistoric Origin. The earliest historic traces of recognized individual ownership are such as are found in the records of transfers of property by tradition, in- heritance, and will. We find these common among all the ancient nations. They were familiar to the Egypt- tians, Hebrews, Greeks, and Eomans, in their earliest periods. § 11. Mosaic Law. We read in the Mosaic law a command from God that "the land shall not be sold for ever; for the land is mine." 7 But this applied only to land in the country within the promised land; for if a man bought a dwelling in a walled city, it should belong to him throughout his generations. 8 Ephron sold Abra- ham the field containing the cave of Machpelah for four hundred sheckles of silver; and the field, all the trees within its borders, and the cave, were made sure to Abraham for a possession, in the presence of the children of Heth, before all that went in at the gate of the city. 9 Abraham, thinking that he would die childless, declared that his steward, one born in his house, should be his heir; but the Lord said: "He that shall come forth out 6 See the first chapter of the second 8 25 Leviticus 30. book of Blaekstone's Commentaries. 9 23 Genesis 9-18. 7 25 Leviticus 23. §§ 12-13 ORIGIN AND NATURE OF PROPERTY. 6 of thine own bowels shall be thine heir." 10 Afterward Abraham put aside his son Ishmael, and willed his whole estate to his son Isaac; 11 and after the death of Abraham, this title was the basis of Isaac's claim of ownership of the wells dug by his father. 12 These records show that all forms of transfer were familiar to the Hebrews— tradition, wills, and inheritance. § 12. Other Ancient Codes. A complete code of dispo- sition by inheritance and will is found in the fifth of the twelve tables of Roman law; but these may have been, and probably were, only a codification of rules long before established. Wills were made at Athens in the time of Solon, and it has been said that the custom was intro- duced by him. 1 3 Recently some wills have been unearthed in Egypt that were made in the 44th year of the reign of Amenemhat III (B. C. 2550). These wills were witnessed by two scribes, with attestation clauses so nearly resem- bling those now in use that you might almost suppose they were drawn yesterday. 14 The explorers for the French government, in A. D. 1902, at Susa, the old Persepolis, in Persia, discovered a stone monument on which was in- scribed a copy of the code promulgated by Hammurabi, king of Babylon, B. C. 2285-2242; by which full provi- sions are made for both testate and intestate succession, some extracts from which are given below. 15 3. OUTLINE OF THE SUBJECT. §13. Methods of Transfer Classified. All transfers of property are either between the living or by succession. In this treatise we are considering only transfers by suc- cession; and these are either by the acts of the parties, called testate succession, or by operation of law, called intestate succession. Succession by acts of the parties 10 15 Genesis 4. wills i n 24 Irish Law Times & Solici- 1121 Genesis 10-14. tor's Journal (April 26, 1890) p. 223. 12 26 Genesis 18-25. 15 § 165. If a man has apportioned to is 1 Eedfleld on Wills 1, 2. his son, the first in his eyes, field, gar- u See extended account of these den, and bouse, has written him a ORIGIN AND NATURE OF PROPERTY. §14 demands attention first, because succession by operation of law becomes important only in case the parties bave not determined tbe succession. Succession by tbe acts of tbe parties may be by gift causa mortis or by will. Succession to real property by operation of law is called title by descent; and in tbe case of personal property is called title by distribution. Wben tbe owner of prop- erty transfers it during bis life, be executes tbe transfer bimself and tbere is no need of anyone to complete it for bim. But wben tbe transfer is by succession, someone else must of necessity administer or execute it in bis stead. Tbe act of dividing tbe property among tbe per- sons to wbom it is given by tbe wisb of tbe deceased or by law is called administering tbe estate. § 14. Plan of Treatment. Sucb being tbe natural parts of tbe subject to be treated, sucb must of necessity be the divisions of tbe treatise. For tbe sake of clear- ness, let me state them again: First, Tbe Substantive Law: 1, Succession by tbe Acts of the Parties, (a) by Gifts Causa Mortis, (b) by Will; 2, Succession by Opera- tion of Law, (a) by Descent, (b) by Distribution; Second, The Adjective Law, or Administration of tbe Estate. We will now proceed to tbe consideration of these in the order named, and the student is urged to make sure that he knows what are the parts of tbe subject, as above named, at the very outset, without which be cannot hope to avoid confusion. sealed deed, after the father has gone judge shall bring back his face ; If he to his fate, when the brothers divide, has committed a heavy crime for the the present his father gave him he shall second time, the father shall cut off his take, and over and above he shall share son from sonship. equally in the goods of the father's § 172. If her husband did not give house. her a settlement, one shall pay her her § 168. If a man has set his face to marriage portion, and from the goods cut off his son, has said to the judge, of her husband's house she shall take I will cut off my son, the judge shall a share like one son. If her sons worry inquire into his reasons, and if the son her to leave the house, the judge shall has not committed a heavy crime which inquire Into her reasons and shall lay cuts off from sonship, the father shall the blame on the sons, that woman not cut off the son from sonship. shall not go out of her husband's house. § 169. If he has committed against The above Is according to the trans- his father a heavy crime which cuts lation by C. H. W. Johns, M. A., pub- off from sonship, for the first time the lished by T. & T. Clark, Edinburgh. PART II. CHAPTER n. GIFTS CAUSA MORTIS. Nature and Essentials. § 15. Definition. § 16. "Gifts." § 17. ''Voluntary." §18. "Executed Transfer " § 19. "Intended as a Gift." § 20. "Of a Present Interest" — Essential to Validity. §21. Proof that Title Passes. § 22. Objections Answered. § 23. "In Personal Property" — Why not Land. § 24. Application of Doc trine. I 25. "To any Amount." § 26. "Accompanied by Deliv- ery" — Why Necessary. § 27. Delivery of Corporeal Property. 1. NATURE AND ESSENTIALS. § 15. Definition— A gift Causa Mortis is a voluntary, executed transfer, intended as a gift, of a present interest, in personal property, to any amount, accompanied by de- livery and acceptance, made by an owner having testa- mentary capacity, in peril of death, and because of such peril. 1 §28. Delivery of Choses in Action. §29. Insufficient Delivery of Choses. §30. Reserving Control. §31. To Whom Delivered. §32. "Acceptance." §33. "Made by an Owner." §34. ' "Having Testamentary Capacity." §35. "In Peril of Death." §36. "Because of Such Peril." How Defeasible. §37. General Statement. §38. "Liable to be Divested." §39. "By the Donor Revoking." §40. "Recovering from the Peril." §41. "Surviving the Donee." §42. "Claims of Creditors." §43. "The Surviving Spouse." l Attempts at definition with a view to fixing precise boundaries are danger- ous for many reasons. The writer may not have a clear and accurate con- ception of the thing In all its parts ; or having that, could scarcely imagine every contingency, so as not to include too much on one side nor too little on another ; or happily succeeding thus far, would seldom find apt words to express his whole meaning certainly, exactly, and clearly ; or If he should be so fortunate as to pass all these per- ils safely, he might fail in the very end, by the reader being unable or too listless to give the whole a proper in- terpretation. Then discovering or im- agining a defect in some part, the read- er would be likely to lose faith in the whole. Propositions like the above, scattered through this book, are not framed in the expectation or hope of 9 GIFTS CAUSA MOBTIS. §§16-20 § 16. "Gifts" are of two kinds; gifts inter vivos, and gifts causa mortis. They are alike in many particulars; but they differ in this important respect: a gift inter vivos is irrevocable, while a gift causa mortis may be revoked by the donor at any time before his death. Gifts causa mortis are not strictly testamentary, as we shall presently see; but there is so much of the testa- mentary character mixed in them that they demand treatment in this connection. §17. "Voluntary." If there be a valuable consid- eration for the transfer, it is not a gift but a sale. 2 If it be involuntary in the sense of being coerced, it is void. 3 §18. "Executed Transfer." An intention and fixed purpose to make a gift, whether secret or expressed, a promise to the donee to make it, whether oral or written, the doing of acts to carry such intention or promise into effect— any of these alone, and all combined, are not enough. 4 ' ' To make a complete gift, there must not only be a clear intention, but the intention must be executed and carried into effect." 5 § 19. "Intended as a Gift." If the giver intended a will, and that intention failed for want of some requisite of a will, such as subscribing witnesses, the intention cannot be effected by sustaining the transaction as a gift, though all the acts essential to a gift were present. To sustain it as a gift, a gift must have been intended. 6 § 20. "Of a Present Interest"— Essential to Validity. All gifts that are not to take effect at once are void. A gift in futuro cannot be sustained even as a gift causa mortis. 7 If the donor so arranges that neither the donee making any such miraculous escape 4 Fearing v. Jones (1889), 149 Mass. from many evils ; but because the stu- 12, 20 N. E. 199 ; Tomlinson v. Ellison dent who will remember these few (1891), 104 Mo. 105, 16 S. W. 201. words has In them a key to all that 6 Cotteen v. Missing (1815), 1 Madd. need be said upon the subject, the va- 103. , riety and extent of which matters make 6 Mitchell v. Smith (1864), 69 Eng. it impossible to remember them separ- Ch. (4 DeG. J. & S.) 422, 33 L. J. Ch. ately. 596, 12 W. R. 941. 2 Thornton on Gifts, §§4, 101. 7 Kidder v. Kidder (1859), 33 Pa. St. 3 See post §§ 175-191. 268. §§21-22 GIFTS CAUSA M0ETI8. 10 nor any one for him can exercise the rights of an owner till after the death of the donor, the gift is void. It may be that the donor thought he could make a valid gift to take effect in future; his mistake does not make the gift good. 8 § 21. Proof that Title Passes. A gift valid accord- ing to the law of the place where made is good, though it does not comply with the law of the donor's domicile, and so would be void as an oral will. This is because the title passes when the gift is made. 9 That the title passes when the gift is made is further proved by the rule that such gifts cannot be revoked by will. The title which has passed before becomes absolute the very moment the will takes effect. 10 Again, a statute which enables mar- ried women to dispose of their property during life, but does not enable them to make wills, enables them to make gifts causa mortis. That the donee has perfect title without probate distinguishes these from transfers purely by succession. 11 If title passed at the same time as under the will, we would expect to see the donees required to contribute pro rata with legatees to pay creditors. The donees claim against the administrator or executor and not through him, and are liable to creditors only when there is no other property to pay with. 12 § 22. Objections Answered. Yet it has been argued that title does not pass to the donee till the death of the donor, because the gift is subject to the claims of the s Basket v. Hassel (1882), 107 TJ. S. Struttmann (1897), 71 Mo. App. 399; 602; Dole v. Lincoln (1850), 31 Me. Nicholas v. Adams (1836), 2 Whart 422; Conser v. Snowden (1880), 54 (Pa.) 17. Md. 175, 39 Am. Rep. 368 ; Logenfiel v. „ t , Richter (1895), 60 Minn-49, 61 N. W. "Marshall v. Berry (1866), 95 826 ; Dunn v. German-Am. Bank, Mass " (1S AIlen > 43 - (1891), 109 Mo. 90, 99, 18 S. W. 1139. 12 Marshall v. Berry (1866), 95 9 Emery v. Clough (1885), 63 N. Mass. (13 Allen) 43 ; Seybold r. Grand Hamp. 552, 4 Atl. 796, 56 Am. Rep. Forks N. B. (1896),. 5 N. Dak. 460, 67 543 - N. W. 682; Emery v. Clough (1885), loBrunson v. Henry (1894), 140 63 N. Ham. 552, 4 Atl. 796, 56 Am. Ind. 455, 39 N. E. 256; Hoehn v. Rep. 543. 11 GIFTS CAUSA MOETIS. §§ 23-24 widow and creditors. 13 The answer to this contention is that the law requires givers to be just before they are generous. 14 §23. "In Personal Property."— Why Not Land. iWhy cannot real property be given causa mortis? No very satisfactory answer can be found in the books. The reason most commonly given, that such gifts extend only to personal property, is no reason at all. That such gifts are odious sounds better, but is not sustained by the modern decisions. The liability of such transactions to be set up through fraud and perjury might well make such gifts of chattels odious; but land cannot be given inter vivos or transferred at all without a writing duly executed. There is no room for fraud here. The only other reason I have known to be given is that land can- not be so given because it is not capable of delivery. It is certainly capable of all the delivery that has been required in the case of chattels. § 24. Application of Doctrine. Indeed, the case usu- ally cited to sustain the contention, probably because of the eminence of the man who wrote the opinion, was one in which a man dying of consumption deeded his land and domestic animals to his wife; and Judge Eedfield sustained the deed of the animals as a gift causa mortis, accompanied by "all the actual delivery of this property of which it was susceptible," but held the deed of the land void. The action was one between the widow and the heirs to quiet title. 15 Other courts have given the same reason for refusing to set aside such a deed on com- plaint filed by the donor on his recovery. 16 Still other courts have given the same reason for setting aside the 13 Hatcher v. Buford (1895), 60 14 Michener v. Dale (1854), 23 Pa. Ark. 169, 29 S. W. 641, 27 L. R. A. St. 59. 507. Compare Baker v. Smith (1891), 66 N. Ham. 422, 23 Atl. 82, holding the wife's gift causa mortis subject to the husband's rights under the statutes of distribution. So also, as to , gifts to df-fraud the widow. Manikee v. Beard 16 Wentworth v. Shibles (1896), 89 (1887), 85 Ky. 20, 2 S. W. 545. Me. 167, 36 Atl. 108. l5Meach v. Meach (1852), 24 Vt. 591, Redfleld's Cas. 701, Abbott, p. 162 ; Wilson v. Jourdan (1901), 79 Miss. 133, 29 So. 823. § 25 GIFTS CAUSA MOBTIS. 12 deeds on such complaints. 17 These last decisions would seem more consistent with the view that land may be given causa mortis, for they give the right to revoke which would not exist after a gift inter vivos of land by deed. In numerous cases deeds of land have been sus- tained which expressly provided that "this deed is not to take effect during my life-time, nor to be recorded till after my death." 19 There can be no possible doubt of the validity of such deeds, whether made in health or in the last sickness. They vest in the grantees a present right to a future enjoyment, a vested estate, which the grantee can sell while the grantor lives. The grantor can avoid such deeds only by bill in equity on a ground for which other deeds would be set aside. 20 If there be a desire to prevent this and reserve the power to revoke, the deed may convey the property to trustees to dispose of according to such will or other direction as the grantor may make, what is not so disposed of to go to the intended grantee. 21 §25. "To Any Amount." In a few old cases at- tempts were made to limit the amount of property that could be disposed of by gifts causa mortis; but these attempts were soon abandoned. In one such case Judge Eedfield seems to have repented after the case was de- cided, for he added a note to the opinion, in which he said: "An examination of the cases will show a wonder- ful variety in the character and extent of property dis- posed of in this mode, often including all one possesses. * * * And still I find no case, except the late case in Pennsylvania, 22 where any attempt has been made to limit its operation, on account of the comparative or 17 Houghton v. Houghton (1884), 34 20 Wilson v. Carrico (1894), 140 Ind. Hun 212 (Citing Forshaw v. Welsby, 533, 40 N. E. 50. See also the numer- 30 Beavan 243) ; Curtiss v. Barrus ous decisions cited in the opinion in (1885), 38 Hun 165. this case. 18 Shackelton v. Sebree (1877), 86 21 Kelly y. Parker (1899), 181 111. 111. 616. And even when delivered to 49, 54 N. B. 615. a third party with directions not to de- 22 Headley v. Kirby (1852), 18 Pa. liver to the grantee till the death of St. 326, 1 Am. L. Reg. (0. s.) 25. Dls- the grantor. Bogan v. Swearingen credited in Michener r. Dale (1854), (1902), 199 111. 454, 65 N. E. 426. 23 Pa. St. 59. 13 GIFTS CAUSA MORTIS. § 26 absolute extent of the property disposed of. And the more I have reflected upon the subject and compared the cases, with a view to evolve some rational and prac-' ticable principle of limitation to the extent of its opera- tion, the more I have felt constrained to declare that it cannot be done by any powers of abstraction or general- ization, which my short sight is able to command." 23 No later attempts seem to have been made, and it is now generally admitted that there is no legal limit to the amount. 24 § 26. "Accompanied by Delivery."— Why Necessary. To sustain such a gift without a delivery of the subject of it would be to sustain a nuncupative will without the requisites of such a will. There is so little in such gifts by which fraud and perjury can be detected that the courts are bound to look upon all alleged gifts of this kind with jealousy and disfavor. They are unlimited as to amount and no writing or witnesses are required for their proof, as in case of oral wills. The delivery is their only safeguard. Mere words may be falsified more easily, may be misunderstood or misinterpreted, or may be mere idle talk. The delivery is more solemn and more certain. For these reasons the courts usually re- quire as complete a delivery as the nature of the prop- erty will permit. A delivery for any other purpose than to execute the gift will not do. 25 Delivery is the impor- tant thing, not possession. Subsequently acquired or previous and continued possession are equally unavail- ing; they do not tend to prove the gift. 26 An unexecuted direction by the donor to the donee to go and take pos- session will not suffice, though the donor supposed that 23 Note to Meach v. .Meach (1852), is good. Curtis v. Portland Sav. Bank 24 Tt. 591, 601, Redfield's Cas. 701, (1885), 77 Me. 151, 52 Am. Rep. 750. Abbott, p. 162. 26 Drew v. Hagerty (1889), 81 Me. 24 Keepers v. Fidelity Title & D. Co. 231, 10 Am. St. 255, 17 Atl. 63, Me- (1893), 56 N. J. L. 302, 28 Atl. 585, chem 9; Allen v. Allen (1898), 75 23 L. R. A. 184, 44 Am. St. Rep. 397. Minn. 116, 77 N. W. 567; Cutting v. 25McCord v. McCord (1882), 77 Mo. Gilman (1860), 41 N. Hamp. 147; Bu- 166, 46 Am. Rep. 9, Ward v. Turner ecker v. Carr (1900), 60 N. J. Eq. 300, (1752), 2 Ves. Sr. 431, 1 White & T. 47 Atl. 34; Yancey v. Field (1889), 85 L. C Eq. 905. Va. 756, 8 S. E. 721. Contra, Cain v. A Gift Subject to a Trust, however, Moon (1896), 2 Q. B. Div. 283. § 27 GIFTS CAUSA MOETIS. 14 his request had been complied with; compliance after the donor's death will not do. 27 § 27. Delivery of Corporeal Property. A herd of cat- tle and other things not capable of manual tradition, were held to have been sufficiently delivered from hus- band to wife, donatio mortis causa, by execution and delivery of a deed of assignment of them. 28 And donor, donee, and the subject of the gift being present, it would seem to be sufficient that the donor says, "There is your property, take it," and the donee thereupon immediately assumes possession, though there be no writing or manual tradition. 29 The delivery of the key to a trunk then in the presence of both parties in the room occupied by them jointly was held to be a sufficient constructive deliv- ery of the trunk and contents. 30 Delivery of the keys to an absent box, trunk, or other depository, has often been held to be a sufficient delivery of the contents, be- cause actual manual delivery was either impracticable or inconvenient. 31 But there are also decisions holding such a delivery insufficient. 32 27 Stokes v. Sprague (1899), 110 was found a slate on which she had Iowa 89, 81 N. W. 195. Delivery un- written these words : "I wish Dr. L. der previous order, after donor had he- S. Ellis to take possession of all, both come unconscious, was held good in personal, real and mixed. Rachael King v. Smith (1901), 110 Fed. 95, 54 BUI. I am so sick, I believe I shall L. R. A. 708. die ; look in valise." In the valise by 28Meach v. Meach (1852), 24 Vt. her side were found the securities in 591, Redf. Cas. 701, Abbott 162. question and an envelope addressed to 29 Waring v. Edmonds (1857), 11 Dr. L. S. Ellis, containing the follow- Md. 424 ; McDowell v. Murdock (1818), ing memorandum: "I wish you to 1 Nott & McCord (S. Car.) 237, 9 Am. take possession of all my effects, to do Dec. 684. with them as you see fit. Dunlap has 30Debinson v. Emmons (1893), 158 the Higgins and Parr papers, the rest Mass. 592, 33 N. E. 706. you will find in my valise. I have paid 3iDovel v. Dye (1889), 123 Ind. Dunlap $34. Push these according to 321, 24 N. E. 246 ; Newman v. Bost your own judgment. » « * Raehael (1898), 122 N. Car. 524, 29 S. E. 848; Bill." These facts were held to con- Thomas v. Lewis (1892), 89 Va. 1, 37 stitute a valid gift causa mortis. El- Am. St. 848, 15 S. E. 389. lis v. Secor (1875), 31 Mich. 185, 18 _ Am. Rep. 178. See also, Stephenson v. A Few Extreme Decisions have King (1883), 81 Ky. 425, 50 Rep. 172. sustained such gifts without any deliv- 32 Hatch v. Atkinson (1868), 56 Me. ery at all being made, because the do- 324, 96 Am. Dec. 464 ; Keepers v. Fidel- nor was unable to make any delivery. A ity Title & D. Co. (1893), 56 N. J. L. woman was found dead in her house 302, 44 Am. St. 397, 28 Atl. 585 23 where she lived alone. By her side L. R. A. 184; Bunn v. Markham 15 GIFTS CAUSA MOETIS. §§ 28-29 § 28. Delivery of Choses in Action.* It is admitted on all hands, and the decisions prove, that a gift of a chose in action may be made and executed by a mere delivery without indorsement of the written evidence of it; such as a certificate of deposit, 33 promissory note payable to the order of the donor, 34 savings bank pass-book, 35 draft payable to the order of the donor, 36 corporation stock, government bond, 37 or receipt for the right of action against the donee, 38 or the note evidencing such debt, 39 and in the last case even a destruction of the evi- dence of indebtedness, accompanied by a declaration of purpose thereby to discharge the obligation. 40 § 29. Insufficient Delivery of Choses. But a similar delivery of the donor's receipt for stock in possession of another, 41 or of his pass-book concerning his commercial deposit in the bank, or of his check on that deposit in favor of the donee, unless paid before the donor's death, 42 or of the donor's own promissory note payable to the donee, would not be sufficient. The note would (1816), 7 Taunton (2 Eng. C. L.), 224. (1900), 162 N. Y. 618, 57 N. B. 1105. Though the key was used and the pa- Contra: Walsh's Appeal (1888), 122 pers obtained while the donor lived. Pa. St. 177, 9 Am. St. 83, 15 Atl. 470 ; Dunn v. Houghton (1902, N. J. Ch.), Ashbrook v. Eyon (1867), 65 Ky. (2 51 Atl. 71. Bush), 228, 92 Am. Dec. 481. *See notes 17 L. R. A. 170; 37 Am. 36 Edwards v. Wagner (1898), 121 St. Rep. 878. Cal. 376, 53 Pac. 821. 33 Conner v. Root (1887), 11 Col. 3T Wa , ch y s ext on (1869), 55 183, 17 Pac. 773. Barb , (N _ Y .) 251 ; Leyson v. Davis 34Druke v. Heiken (1882), 61 Cal. ^895), 17 Mont. 220, 42 Pac. 775, 346, 44 Am. Rep. 553 ; Brown v. 31 L R A 429 _ Brown (1847), 18 Conn. 410, 46 Am. 3a Moore v. Darton (1851), 7 Eng. Dec. 328; Ashbrook v. Ryon (1867), 65 Law & Eq 134 . champney v. Blanch- Ky. (2 Bush), 228, 92 Am. Dec. 481; ar(J (i 8 68), 39 N. Y. 111. Grover v. Grover (1837), 41 Mass. (24 39 Woodburn v. Woodburn (1887), Pick.), 261, 35 Am. Dec. 319; Blazo v. 12 3 m. 608, 14 N. E. 58; Richardson Cochrane (1902), 71 N. Hamp. 585, 53 v . Adams (1837), 18 Tenn. (10 Terg.) Atl. 1026; Westerlo v. DeWitt (1867), 273. 36 N. Y. 340; In re Mead, 15 Ch. D. 40 Darland v. Taylor (1879), 52 651. Iowa, 503, 35 Am. Rep. 285, 3 N. W. 35 Hill v. Stevenson (1873), 63 Me. 510 ; Gardner v. Gardner (1839), 22 364, 18 Am. Rep. 231 ; Pierce v. Boston Wend. (N. Y.) 526, 34 Am. Dec. 340. Five Cents Sav. Bank (1880), 129 41 Ward v. Turner (1752), 2 Ves. Mass. 425, 37 Am. Rep. 371 ; Ridden v. Sr. 431, 1 White & Tudor's L. C. Eq. Thrall (1891), 125 N. Y. 572, 21 Am. 905. St. 758, 26 N. E. 627; Callanan v. Cle- 42 Bouts v. Ellis (1853), 4 DeG. M. ment (1896), 18 Misc. 621, 42 N. Y. & G. 249, 17 Jurist 585, 21 Eng. Law S. 514, affirmed without opinion & Eq. 337. §§ 30-31 GIFTS CAUSA MORTIS. 16 not be enough because it is only the promise of the donor to make a future gift. It is not symbolic of his prop- erty. 43 The check is not enough, because it is not an assignment of the fund; the first check presented gets the money. 44 The delivery of such a pass-book is not enough, for it neither represents the fund nor gives con- trol of it; 45 and it has even been held that such a deposit is not sufficiently delivered to support a gift causa mortis by the execution and delivery of a formal assignment of it. 46 § 30. Reserving Control. An indorsement on a note given, forbidding payment to the donee till after the death of the donor, has also been held to defeat the gift. 47 Any reserve of control defeats the gift. 47a § 31. To Whom Delivered. A gift causa mortis may be made and delivered to one in trust for another; 48 or the delivery may be to another as the agent of the donee; and a third person to whom delivery is made is usually treated as the agent for the donee unless he appears to have been considered by the donor as his own agent. 49 43 Tracy v. Alvord (1897), 118 Cal. Grymes v. Hone (1872), 49 N. Y. 17, 654, 50 Pac. 757 ; Camp v. Shaw 10 Am. Rep. 313. (1896), 160 111. 425, 43 N. E. 608; 47 Basket v. Hassel (1882), 107 V. Parish v. Stone (1833), 31 Mass. (14 S. 602; Logenflel v. Richter (1895), 60 Pick.) 198, 25 Am. Dec. 378; San- Minn. 49, 61 N. W. 826. born v. Sanborn (1889), 65 N. Hamp. 47a Calvin v. Free (1903), ::: Kan. 172, 18 Atl. 233 ; In re James (1895), : : :, 71 Pac. 823. But see Hogan v. 146 N. T. 78, 48 Am. St. 774, 40 N. E. Sullivan (1901), 114 Iowa, 456, 87 N. 876; Smith v. KIttridge (1849), 21 Vt. W. 447; Dennin v. Hilton (1901), N. 238. J. Ch.), 50 Atl. 600; Treasury Sol. v. 44 In re Beak (1872), 13 Eq. Cas. Lewis (1900), 2 Ch. D. 812, 69 L. J. (Eng.) 489; Detroit Second Nat. Bank Ch. 833, 83 L. T. 139, 48 W. R. 694. v. Williams (1865), 13 Mich. 282; 48 Dresser v. Dresser (1858), 46 Me. Matter of Smither (1883), 30 Hun (N. 48; Clough v. Clough (1875), 117 Y.) 632. But see Taylor's Estate Mass. 83 ; Caldwell v. Renfrew (1860), (1893), 154 Pa. St. 183, 25 Atl. 1061. 33 Vt. 213. But a check presented and paid while 49 Ammon v. Martin (1894), 59 Ark. the donor lived would be a good gift. 191, 26 S. W. 826 ; Woodburn v. Wood- Frantz v. Porter (1901), 132 Cal. 49, ' burn, 123 III. 608, 14 N. E. 58, 16 N. 64 Pac. 92. E. 209; Caylor v. Caylor (1899), 22 45 Jones v. Weakley (1892), 99 Ala. Ind. App. 666, 52 N. E. 465; Hogan v. 441, 42 Am. St. 84, 12 South. 420; Sullivan (1901), 114 Iowa, 456, 87 N. Ashbrook v. Ryon (1867), 65 Ky. (2 W. 447; Dennin v. Hilton (1901, N. Bush) 228, 92 Am. Dec. 481. J. Ch.) 50 Atl. 600; Emery v. Clough 46McGrath v. Reynolds (1875), 116 (1885), 63 N. Hamp. 552, 56 Am. Rep. Mass. 566; Jiimball v. Tripp (1902), 543, 4 Atl. 796; Drury v. Smith 136 Cal. 631, 69 Pac. 428. But see (1717), 1 Peere Williams, 404 ; Williams 17 GIFTS CAUSA MOETIS. §§ 32-34 In either of these cases the gift is good though the prop- erty does not reach the hand of the donee till after the death of the donor. 50 But if the third party was the agent of the donor, the gift is not good unless the agent made delivery to the donee before the donor's death, 51 though the donor expressly directed the agent to make the delivery only after that event, for the death revoked the agency. 52 Delivery by the servant during the un- consciousness preceding the death would not make good a gift to be delivered after death. 53 § 32. "Accepted." Acceptance is essential to a com- plete gift, because no one can be compelled to take what he does not want, even as a gift. But if beneficial to the donee his acceptance will be presumed, and the gift sus- tained, though the delivery was to a third person for him and not known to him till the donor was dead. 54 §33. "Made By an Owner." An estate that will pass by sale will pass by gift. 55 No other will. The gift will not pass an estate that did not vest till after the gift was made. 56 §34. "Having Testamentary Capacity." The same mental vigor 57 and freedom from fraud and undue influ- ence 58 are essential to a valid gift as to a valid will; and, v. Guile (1889), 117 N. Y. 343, 22 N. B. 52 Gilmore v. Whitesides (1834), 1071, 6 L. B. A. 366; Callanan v. Cle- Dudley Eg. (S. Car.) 14, 31 Am. Dec. ment (1896), 18 Misc. 621, 42 N. Y. S. 563; Walter v. Ford (1881), 74 Mo. 514, affirmed without opinion (1900), 195, 41 Am. Eep. 312. 162 N. Y. 618, 57 N. B. 1105. 03 Hemphill's Estate (1897), 180 Pa. bo Ibid. And though a will was aft- St. 87, 36 Atl. 406, 2 Pro. E. A. 136. erward made confirming the gift. Dar- 54 Ammon v. Martin (1894), 59 Ark. ling v. Emery (1902), 74 Vt. 167, 52 191, 26 S. W. 826; Dar land v. Taylor Atl. 517. (1879), 52 Iowa, 503, 35 Am. Eep. 51 Newman v. Snyder (1884), 44 285; Forbes v. Jason (1880), 6 III. Ark. 42, 51 Am. Eep. 587; Stokes v. App. 395. Sprague (1899), 110 Iowa, 89, 81 N. 55 Hatch v. Lamos, 65 N. Ham. 1, 17 W. 195; Jennings v. Neville (1899), Atl. 979. 180 111. 270, 54 N. E. 202; Tomlinson 66 Soileau v. Eougeau (1847), 2 La. v. Ellison (1891), 104 Mo. 105, 16 S. An. 766. W. 201; Gano v. Fisk (1885), 43 Ohio 57 Sass v. McCormack (1895), 62 St. 462, 3 N. E. 532; Hemphill's Es- Minn. 234, 64 N. W. 385. tate (1897), 180 Pa. St. 87, 36 Atl. 58 Woodbury v. Woodbury (1886), 406, 2 Pro. E. A. 136, delivered after 141 Mass. 329, 55 Am. Eep. 479 ; Boss donor became unconscious; Wilcox v. v. Conway (1892), 92 Cal. 632, 28 Pac. Matteson (1881), 53 Wis. 23 ; 9 N. W. 785. 814. 2 § 35 GIFTS CAUSA MOETIS. 18 therefore, these matters will be considered when we come to speak of capacity to make wills. 59 §35. "In Peril of Death." If a gift made in the absence of sufficient peril of death be conditioned to take, effect only on the death of the donor, the condition pre- vents the title passing and makes the gift void. 60 If there be no peril to sustain a gift causa mortis, a gift made without condition is a gift inter vivos absolute and irrevocable. 61 It is hard to say just what constitutes a sufficient peril. The peril of ultimate death which awaits all mortals is not enough to sustain such a gift by a person in health. 62 That is about all that can be asserted with assurance. The rule applied to oral wills, that they are good only when made in such extremity that there might not be time to make a written will, does not apply. In many of the reported cases the gift was made weeks, and even months, before the death of the donor, when there was abundant time and opportunity to have made a written will. For example, such gifts have been sustained when made by one about to submit to a surgical operation which might and did result fatally; 63 or by a man of seventy years who had suffered two strokes of paralysis and died from a third six weeks later; 64 again, by a man so ill that he needed the attend- ance of a nurse and died six weeks later; 65 and, again, by one who had merely enlisted, or was about to enlist, in the army for active service in time of war. 66 But the E9 See post §§ 108-137, 169-191. Infirm age and declining health is held eozeller v. Jordan (1894), 105 Cal. insufficient. Robson v. Jones (1866), 143, 38 Pac. 640 ; Knott v. Hogan 3 Del. Ch. 51. (1862), 4 Mete. (Ky.) 99. 63 Bidden v. Thrall (1891), 125 N. A Present Gift in Trust would be Y. 572, 26 N. E. 627, 21 Am. St. Eep. valid though the trustee was not to 758, 11 L. R. A. 684. make delivery to the beneficiary till 64 Williams v. Guile (1889), 117 N. after the death of the donor. Smith Y. 343, 22 N. B. 107, 6 L. R. A. 366. v. Youngblood (1900), 68 Ark. 255, 58 65 Larrabee v. Hascall (1896), 88 S. W. 42; Sorrells v. Collins (1900), Me. 511, 34 Atl. 408, 51 Am. St. Rep. 110 Ga. 518, 36 S. E. 74. 440. Similar, but died after five 61 Bronson v. Henry (1894), 140 months, Grymes v. Hone (1872), 49 N. Ind. 455, 39 N. E. 256. Y. 17, 10 Am. Rep. 313. G2Zeller v. Jordan (1894), 105 Cal. 66 Virgin v. Gaither (1866), 42 111. 143, 38 Pac. 640; Calvin v. Free 39; Gass v. Simpson (1867), 44 Tenn. (1903), — Kan. — . 71 Pac. 823. (4 Cold.) 288. 19 GIFTS CAUSA MORTIS. § 36 last proposition is contrary to several decisions. 67 A gift made in anticipation of suicide has been held not made in peril of death. 08 § 36. "Because of Such Peril." The existence of the peril of death is not what makes the transaction a gift causa mortis. It is such because the donor would not have made it but for the existence of the peril. It is not necessary that he shall think he will die within any par- ticular time, nor that he shall say he makes the gift because of the peril. It is enough that the fact appears from all the circumstances. Indeed, a gift made during the last sickness or when the donor knew he was in peril of death will be presumed in absence of proof to have been made for that reason. 69 Yet a person in the pos- session of sufficient capacity to make any disposition may, if he wishes, make an absolute gift, though he knows he is sick almost to death. 70 67 Smith v. Dorsey (1872), 38 Ind. which attend all human affairs, but 451, 10 Am. Rep. 118 ; Gourley v. Lin- which are still too remote and uncer- senbigler (1867), 51 Pa. St. 345, 56 tain to be regarded as objects of pres- Pa. St. 166, 94 Am. Dec. 51. ent contemplation and apprehended Gift by Soldier Enlisting — What danger, is not sufficient to sustain such is Peril of Death. "The alleged donor a gift as the one which is claimed in was in good health, many miles from this case. The party must be in a the seat of war ; and if he 'snuffed the condition to fear approaching death battle, the thunder of the captains, and from proximate and impending peril, the shouting,' it was, indeed, 'afar off' or from illness preceding expected dis- — too far to give to any one not utterly solution." Irish v. Nutting (1867), craven hearted the least apprehension 47 Barb (N. Y.) 370, 387. or disturbance. The only expression 68 Blazo v. Cochrane (1902), 71 N. he made, having any relevancy to a Hamp. 585, 53 Atl. 1026 ; Barle v. possibly expected peril, was, that he Botsford (1883), 23 New Bruns. 407. was going to a dangerous place, and 69 Gardner v. Parker (1818), 3 might never return. So, it is danger- Madd. *184 ; Hatcher v. Buford ous to leave home on a railroad jour- (1895), 60 Ark. 169, 29 S. W. 641; ney, or a steamboat excursion, or a Williams v. Guile (1889), 117 N. Y. ride forth after a pair of spirited 343, 22 N. B. 107, 6 L. R. A. 366; horses; but no one would think either Swade's Matter (1901), 65 App. Div. of these such an impending peril as to 592, 72 N. Y. S. 1030. justify a man in giving away his earth- to Hatcher v. Buford ( 1895 ) , 60 ly goods, under the conception that Ark. 169, 29 S. W. 641, 27 L. R. A. death was near at hand, if not already 507; Henschel v. Maurer (1889), 69 knocking at the door. In short, a Wis. 576, 2 Am. St. Rep. 757, 34 N. vague and general impression that W. 926; Wilson v. Jourdan (1901), 79 death may occur from those casualties Miss. 133, 29 So. 823. §§ 37-39 GIFTS CAUSA MOBTIS. 20 2. HOW DEFEASIBLE. § 37. General Statement. The estate of the donee un- der a gift causa mortis is liable to be divested by the donor revoking the gift, recovering from the peril, sur- viving the donee, or not leaving sufficient other property to satisfy the claims of creditors and of the surviving spouse. 71 §38. "Liable to Be Divested." It has often been said that one of the essentials of such a gift is that it be made subject to the conditions above mentioned, that it must be so made. 72 The statement is not true. These conditions subsequent are not essentials of such gifts, but incidents of them. The trjith is that the whole doc- trine of revocation is a rule of law. The law declares that a donation causa mortis is revocable, notwithstand- ing the gift was in express terms absolute, and the deliv- ery absolute. It is not a gift causa mortis because con- ditional, but conditional because a gift causa mortis. 73 A gift inter vivos would be void if the donor reserved the right to revoke it at will; but such provisions expressed in making gifts causa mortis do not vitiate them. §39. "By the Donor Revoking." The existence of peril seems essential to a gift causa mortis, but not to the donor's right to revoke. A gift made because he supposed he was about to die would be revocable, though no peril really existed. 74 A gift causa mortis is revoked by the donor recovering possession and treating the property as his own; 75 but recovery is not essential to a 71 Basket v. Hassell (1882), 107 U. 74, Nicholas v. Adams (1836), 2 S. 602; Dunn v. German-Am. Bank Wharton (Pa.), 17. (1891), 109 Mo. 90, 98, 18 S. W. 1139. 76 Merchant v. Merchant (1853), 2 72Kenistons v. Sceva (1873), 54 N. * radf ° r , d S " r : < N ' J-\ 432 ' *? & f* Ham 24 37 s defeated ' ' by the donee locking the things up in 73 Merchant v. Merchant (1853), 2 the same place from which she got Bradford Sur. (N. Y.) 432, Reeyes 127, them to enable the donor to make de- Abbott 170, Mechem 3, Redfield Cas. livery. Swade's Matter (1901), 65 713. App. Div. 592, 72 N. Y. S. 1030. 21 GIFTS CAUSA MOETIS. §§ 40-41 valid revocation. It is revoked if lie afterwards gives the same thing to another, 78 or sends a messenger to get it and bring it to him for the purpose of revoking the gift, though the donor dies before the messenger re- turns f most certainly by his suing the donee to recover the property, for the very act of suing is a repudiation; 78 but not by will, because the testator does not intend the will to speak till after his death. An intention to revoke in the future is not enough. 79 A present revocation must be intended. §40. "Recovering from the Peril." The mere fact of recovery revokes the gift. 80 It is often said that it is not valid unless the donor died of the very peril which prompted it. 81 But the better rule would seem to be that it is not avoided by his dying from another cause before recovering. 82 The gift is not disturbed by the alternation of hope and despair; 83 but a complete recovery of health has been held not essential to avoid it. A man dying of consumption made such a gift; and it was held, in a suit against the administrator, that the gift had been revoked by the donor so far recovering as to attend to his busi- ness for a few weeks. 84 § 41. "Surviving the Donee." It is often said by the courts that the gift is revoked by the donor surviving the donee. 85 Such was the rule of the civil law in which 76 Parker v. Marston (1847), 27 Me. Atl. 1026, it was held that the cause 196. of death must have existed when the 77Doran v. Doran (1893), 99 Cal. gift was made. 311, 33 Pac. 929. 83 Nicholas v. Adams (1836), 2 78 Adams v. Atherton (1901), 132 Wharton (Pa.) 17, 23. Cal. 164, 64 Pac. 283. 84 Weston v. Hight (1840), 17 Me. 79 See ante § 21, and post § 330. But 287, 35 Am. Dec. 250. The donor hav- see Adams v. Atherton, above ; Jayne ing recovered sufficiently to go abroad v. Murphy (1889), 31 111. App. 28. and afterward becoming insane, an ac- 80 Conser v. Snowden (1880), 54 tion by his committee against the do- Md. 175, 39 Am. Eep. 368. nee to recover the property was sus- 81 See Conser v. Snowden (1880), tained. Staniland v. Willott (1852), 54 Md. 175, 39 Am. Rep. 368. 3 Macn. & G. (49 Eng. Ch.) 664. 82 Bidden v. Thrall (1891), 125 N. 85 Merchant v. Merchant (1853), 2 Y. 572, 26 N. E. 627, 21 Am. St. Eep. Bradford Sur. (N. Y.) 432, Eedfleld 758, 11 L. B. A. 684 ; Larrabee v. Has- 713, Mechem 3, Abbott p. 170, Beeves kail (1896), 88 Me. 511, 34 Atl. 408, 127; Dunn v. German-Am. Bank 51 Am. St. Eep. 440. In Blazo v. (1891), 109 Mo. 90, 98, 18 S. W. Cochrane (1902), 71 N. Hamp. 585, 53 1139. §§42-43 GIFTS CAUSA MORTIS. 22 such gifts occupied a place more kindred to wills than under our law. 86 I am not aware of any case in which the question has been involved. § 42. "Claims of Creditors." Gifts causa mortis are subject to the claims of creditors, but not void as to creditors. The administrator can recover the property of the donee only by showing that there are claims against the estate to be paid, and not enough other prop- erty to pay them. 87 Even then the donee may retain the property by paying the claims and costs; 88 and if he sur- renders the property to the administrator he is entitled to any surplus remaining after the claims are paid. 89 §43. "The Surviving Spouse." Attempts to de- fraud the surviving spouse by such gifts will not be per- mitted to succeed. The property is treated as a part of the estate in determining the amount of his or her distributive share under the statute; and if enough other property does not remain, it must be made up out of the property given, 90 86 Inst. lib. 2, tit. 7, §1 ; Dig. 1, 30, 89 Kiff v. Weaver (1886), 94 N. Car. tit. 6, §16, item 30. 274, 55 Am. Rep. 601 ; Seybold v. Grand Forks N. B. (1896), 5 N. Dak. 460, 67 N. W. 682. 90 Hatcher v. Buford (1895), 60 87 Virgin v. Gaitber (1866), 42 111. 39; Borneman v. Sidlinger (1839), 15 Me. 429, 33 Am. Dec. 626; Seybold v. Grand Forks N. B. (1896), 5 N. Dak. f "?«?? o.^" H \ ¥Z l*. T- 460 67 N W 682 Beard < 1887 >> 85 K y- 20 . 2 s - W. 545; Stone v. Stone (1853), 18 Mo. 389; 88 Chase v. Redding (1859), 79 Dunn v. German-Am. Bank (1891), 109 Mass. (13 Gray) 418. In this case it Mo. 90, 18 S. W. 1139 ; Baker v. Smith was held that the donee could not de- (1891), 66 N. H. 422, 23 Atl. 82; Prin- feat the action by showing that the gle v. Pringle (1868), 59 Pa. St. 281. creditors had relied on the promises Contra: Marshall v. Berry (1866), 5 of the administrator till it was too Mass. (13 Allen) 43 ; Lightfoot v. Col- late to file their claims. gin (1813), 5 Munf. (Ya.) 42. PART III —WILLS. CHAPTEE in. § 44. Plan of Treatment. § 44. Plan of Treatment. Our examination of gifts causa mortis has disclosed that they are not strictly transfers by succession, and resemble such transfers only in being revocable, and in being made in view of death. That topic disposed of, we are ready to consider the only other method by which the owner can direct the succes- sion, namely, by will. The principal legal questions that can arise concerning wills are these: 1. Is the transac- tion in question in this case a will, or what is it? 2. If so, can the things be disposed of by will which this will attempts to dispose of? 3. Can such a person as this testator, and under his circumstances, make a will? 4. May such a person as the one to whom this will gives, take by will? 5. Was this will made with sufficient regard to formal requirements? 6. Is this will still in force, or has it been revoked? 7. What are the mean- ing and effect of the words of the will? These questions will be taken up and answered in their order, under the following titles: 1. Definitions, Nature and Kinds of Wills. 2. What May Be Disposed of By Will. 3. Who May Make a Will (including error, fraud, and undue in- fluence). 4. Who May Take By Will. 5. Formalities Required in Making Wills. 6. Eevocation of Wills. 7. What Laws Govern Wills, as to Time and Place. 8. Con- struction of Wills. 9. Lapse, Ademption, Abatement, &<$., of Gifts. 23 CHAPTER IV. DEFINITIONS, NATURE, AND KINDS OF WILLS. 8 45. §46. §47. §48. §49. §50. §51. §51a. §52. §53. §54. §55. §56. §57. §58. §59. §60. Some Common Terms Defined. § 61. Will Defined. § 62. "Will or Testament." Kinds of Wills. § 63. "Lawful." "Voluntary" — Effect of Coer- § 64. cion. Contracts to Make Wills. § 65. Effect of Contract on Eight to and Necessity for — Knowledge of Contents. Evidence to prove Inten- tion. Conditional and Alternative Wills— Validity. Creating Power in Will to Avoid It. — Construction of Expressions Probate. Effect on Eight to Probate § after Eevocation. Effect of such Contracts on § the Title. Must have all Essentials of § a Contract. Promises within the Stat- § ute of Frauds. Eemedies of the Promisee of Bequests. Eemedies of the Promisee § 72. of Devises. § 73. "Disposition" — As to Papers in Eegular Form of Wills. § 74. Memoranda and Statements of Intention. § 75. Peculiar Papers Sustained as Wills. § 76. 66. 67. 68. 69. 70. §71. — Condition or Inducement. Evidence to Prove Condi- tion. Probate of Conditional and Alternative Wills. "Of Property" — Wills not Dis- posing of Property. "To a Competent Donee by Any- one Competent." Joint, Double, Mutual, and Simultaneous Wills — Validity. Time and Manner of Pro- bating Such Wills. Eevocability of Such Wills. "To Take Effect on the Death of the Testator." Difficulty in Discovering Intent. Circumstances Indicating Intention. "Unless Sooner Eevoked." § 45. Some Common Terms Defined. The person making a will is called the testator, if a man; the testa- trix, if a woman. When a person dies leaving a will he is said to die testate; if without a will, intestate. The words usually employed in disposing of property by will are give, devise, and bequeath. Of these the word give has the widest meaning. All transfers of property, real or personal, may properly be termed gifts if they are without consideration— voluntary, gratuitous. Techni- cally, a devise is a gift of real property by will or a will disposing of real property, and a bequest or legacy is a gift of personal property by will. But the actual inten- tion of the testator appearing from the context, it will 24 25 DEFINITION, NATUEE AND KINDS. §§ 46-48 be given effect, though, he said devise "when he meant bequest, or vice versa. A devisor is one who has made a devise; a devisee, one to whom a devise has been given. § 46. Will Denned. A will or testament is a lawful voluntary disposition, of property, to a competent donee, by anyone competent, and to take effect upon the death of the testator, unless sooner revoked. This definition suggests almost all of the questions above mentioned as those which may arise concerning wills. But in commenting on it, it seems advisable to dwell principally on the distinctive and distinguishing qualities of wills, reserving the other questions for future topics. § 47. "Will or Testament." The word will indicates decision from choice, with volition unrestrained. The testator must have a will of his own, and the writing must, be a free expression of it. 1 The word testament is now used as synonymous with the word will, and is often coupled with it; thus, "last will and testament." But the word testament (testatio mentis) directs atten- tion particularly to the expression of the will, as in " this testament concerning my last will." Formerly testa- ment signified a will disposing of personal property, as distinguished from a devise; and under the civil and canon law was used to signify those wills in which an executor was appointed. 2 §48. Kinds of Wills. Wills are either written or oral. Oral wills are called nuncupative. Wills written entirely by the hand of the testator are good under some statutes without witnessing, and are called holographic or olographic wills. The secret or mystic testament, pro- vided for by the Louisiana Code, is a will sealed up by the testator and so delivered by him to a notary public in the presence of seven witnesses, who, with the notary, write their names on the envelope. Mystic and holo- graphic testaments are derived from the French and i Swinburne on Wills *11. 2 Swinburne on Wills *2, *7. §§ 49-51 WILLS. 26 Spanish codes. A codicil (little writing) is a will ex- plaining, adding to, or subtracting from some former will. Other wills, distinguished by their peculiarities as conditional, alternative, mutual, joint, on consideration, etc., will be considered presently. 3 §49. "Lawful." The term lawful in the definition signifies that the disposition is executed in due form to comply with the requirements of the law, a matter we will have occasion to consider at length later, 4 and also that it is not illegal in its nature. Says Swinburne: 5 "The testator cannot command anything that is wicked, or against justice, piety, equity, etc. * * * There- fore, if the testator should command any such thing in his testament, the same is not to be observed. As if he should will any man to be murdered, for this is against the law of God; or if he should command his body to be cast into the river, 6 for this is against humanity; or if he should command his goods to be burned, for this is against policy ; 6a or if he should command any ridiculous act, or pre judical only to his own credit and dignity; as if he should will his burial or funeral to be solemnized with May-games or Morris-dances, for this were to mani- fest his own folly, or at least to make question whether he were of sound mind and memory." §50. "Voluntary"— Effect of Coercion. What one is coerced to do is clearly not his will, nor entitled to probate as such. What amounts to such coercion as will overthrow the will is a question we will have occasion to consider at length later. 7 § 51. Contracts to Make Wills* The fundamental notion of a will, that it is purely voluntary, marks a strong contrast between it and a contract. The will 3 See post §§ 51-67. ea Scott's Will (1903), — Minn.—, 4, See post §§ 214-318. 93 N. W. 109. 5 Swinburne on Wills 5. 7 See post §§ 175-191. c Or that his body be cremated. "The whole subject of contracts to Williams v. Williams (1881), L. R. 20 make wills is treated in notes 66 Am. Ch. Div. 659. Dec. 783-790, 60 Am. Rep. Ill, 4 Pro. R. A. 542-547, 40 Ore. 252. 27 DEFINITION, NATURE AND KINDS. § 51 a gives the proposed beneficiary no claim, legal or equi- table, against the testator, nor against his property, while the testator lives. The testator may change it to suit his varying fancy at any time, or destroy it alto- gether, without becoming liable in any way; and the will being revoked, the intended beneficiaries will have no claim on his estate. 8 § 51a. Effect of Contract on Right to and Necessity for Probate. If a competent person, upon a sufficient consideration, binds himself to will his estate, or any specified part of it, to a named person, or thus agrees that upon his death such person shall have such prop- erty, there being no promise to make a will in execution of the agreement; that contract is not a will, nor entitled to probate as such. Contracts cannot be probated. 9 Courts have generally allowed probate of wills that were made for a valuable consideration; and in a few it is ex- pressly held that an unrevoked will should not be denied probate on account of the consideration which bound the maker. 10 But writings purporting to be wills made as parts of and in execution of such contracts have been denied probate by several courts, solely on the ground that the consideration made them irrevocable, though the makers had never attempted to revoke them. 11 For the same reason, it has been held that an action against the executor or administrator or a claim against the es- tate could be maintained on such writing without hav- ing offered it for probate as a will. 12 § 52. Effect on Right to Probate After Revocation. When such a writing was offered as a will after the sCawley's Estate (1890), 136 Pa. R. 1 Pro. & Div. 383; Clayton v. Liv- St. 628, 20 Atl. 567, 10 L. E. A. 93, erman (1837), 2 Dev. & Bat. L. (N. Mechem 32. Car.) 558. 9Huguley v. Lanier (1890), 86 Ga. 12 Huguley v. Lanier (1890), 86 Ga. 636, 12 S. E. 922, 22 Am. St. Rep. 636, 12 S. E. 922, 22 Am. St. Rep. 487. "I agree to will" was held, un- 487 • Kleeberg v. Schrader (1897), 69 der the facts, to he a will. Longer's Minn. 136, 72 N. W. 59. Estate (1899), 108 Iowa, 34, 78 N. The Law Of Wills Need Not W. 834. be Complied With to make the contract 10 Day, ex parte (1851), 1 Brad. Sur. valid. Emery v. Darling (1893), 50 (N. T.) 476. Ohio St. 160, 33 N. E. 715. 11 Robinson, in goods of (1867), L. §§ 52-53 WILLS. 28 maker had revoked it, Sir John Nicholl said: "The allegation plainly proceeds upon a notion of the irrevo- cability of the instrument which it propounds as the will of the deceased. Why that very circumstance de- stroys its very essence as a will, and converts it into a contract, a species of instrument over which this court has no jurisdiction." 13 That such a writing cannot be probated as a will after it has been revoked by the maker is agreed to by all courts; and it is generally and prop- erly held that the revoking will is entitled to probate, notwithstanding the fact that the contract had deprived the testator of power to dispose of the property thus, for that is a matter touching the effect of the will, not its validity. 14 § 53. Effect of Such Contracts on the Title. From what has been said it is not to be inferred that such con- tracts are void; the contrary is well settled. 15 A man may bind himself to make a certain disposition of his property by will, or to allow it to descend according to law, by making no will. 16 But the substance of all these contracts is that a certain future conveyance of the prop- erty shall be made; that the transfer is to be effected by some specified means, by deed, by dying intestate, or by making a devise or bequest, is of no particular impor- tance. "The law permits a man to dispose of his own property at his pleasure; and no good reason can be as- signed why he may not make a legal agreement to dispose 13 Hobson v. Blackburn (1822), 1 Ad- Ala. 451, 60 Am. Eep. 107, 2 South. 624. dams, 274, 278. To same effect see: is Wellington v. Apthorp (1887), Schumaker v. Schmidt (1870), 44 Ala. 145 Mass. 69, 13 N. E. 10, Mechem 454, 4 Am. Eep. 135 ; Anderson v. Eg- 85, Abbott No. 43 ; Carmichael v. Car- gers (1901), 61 N. J. E. 85, 49 Atl. michael (1888), 72 Mich. 76, 40 N. 578. W. 173, 16 Am. St. Eep. 528, 1 L. E. liPohlman v. Untzellman (1756), 2 A. 596; Johnson v. Hubbell (1855), Lee Eccl. (6 Eng. Eccl.) 142; Sumner 10 N. J. Eq. 332, 66 Am. Dec. 773, 5 v. Crane (1892), 155 Mass. 483, 29 N. Am. L. Eeg. 177; Cullen v. Woolver- E. 1151; Cawley's Estate (1890), 136 ton (1900), 65 N. J. L. 279, 47 Atl. Pa. St. 628, 20 Atl. 567, 10 L. E. A. 626; Albright v. Hannah (1897), 103 93, Mechem 32. Held, that when the Iowa, 98, 72 N. W. 421. instrument was part will and part con- 16 Taylor v. Mitchell (1878), 87 Pa. tract, the probate of the subsequent St. 518, 30 Am. Eep. 383, Chaplin 414 ; mill was no bar to an action on the Quinn v. Quinn (1894), 5 S. Dak. 328, contract. Bolman v. Overall (1886), 80 58 N. W. 808, 49 Am. St. Eep. 875. 29 DEFINITION, NATURE AND KINDS. §§ 54-55 of his property to a particular person, or for a particular purpose, as well by will as by conveyance, to be made at some specified future period, or on the happening of some future event. It may be unwise for a man to em- barrass himself as to the final disposition of his prop- erty; but he is the disposer by law of his fortune, and the sole and best judge as to the manner and time of dispos- ing of it." 17 Contracts to will to a certain person all the property the party shall own at the time of his death have sometimes been thought contrary to public policy; 18 they have also been sustained as sufficiently certain and un- objectionable. 19 § 54. Must Have All Essentials of a Contract. There is nothing peculiar about contracts to make provisions by will. An actual contract must be shown. The parties must have been competent. Their minds must have met on a certain and definite agreement; 20 unless the facts imply a promise which would sustain an action on quantum meruit. 21 Declaration of purpose to will, and hope of reward for offices performed, are both unavail- ing: these do not make out a contract. 21 a A promise without consideration is not enough unless it was a prom- ise under seal. 22 § 55. Promises Within the Statute of Frauds. An agreement to give a money legacy is not required by the it Johnson v. Hubbell (1855), 10 N. 331, 69 Law J. Ch. 161, 81 Law T. (N. J. Bq. 332, 66 Am. Dec. 773, 5 Am. L. S.) 749, 48 Wkly. Kep. 250. Eeg. 177. Quoted in Parsell v. Stryker 2ia Warren v. Durfee (1879), 126 (1869), 41 N. Y. 480, Chaplin 411. Mass. 338; Lennig's Estate (1897), 182 is Owens v. McNally (1896), 113 Pa. St. 485, 38 Atl. 466, 38 L. E. A. Cal. 444, 45 Pae. 710 ; Hershy v. 378. But when assistance was ob- Clark (1879), 35 Ark. 17, 37 Am. Eep. tained from a benevolent society by 1. an executed promise to make a will in 19 Svanburg v. Fosseen (1899), 75 its favor, the estate was liable for the Minn. 350, 78 N. W. 4, 43 L. B. A. services, though the society made no 427, 74 Am. St. Rep. 490 ; Burns v. promise to continue them. Anderson Smith (1898), 21 Mont. 25.1, 53 Pac. v. Eggers (1900), 61 N. J. Eq. 85, 47 742; Bruce v. Moon (1899), 57 S. Car. Atl. 727. 60, 35 S. E. 415; Howe v. Watson 22 Krell v. Codman (1891), 154 (1901), 179 Mass. 30, 60 N. E. 415. Mass. 454, 28 N. E. 578, 14 L. R. A. 20 Owens v. McNally (1896), 113 860. Compare Cover v. Stem (1887), Cal. 444, 45 Pac. 710; Wall's Appeal 67 Md. 449, 10 Atl. 231, Abbott No. (1886), 111 Pa. St. 460, 5 Atl. 220. 38. The consideration must be ade- 21 In re Fickus (1900), 1 Ch. Div. quate to get specific relief. Richard- § 55 WILLS. 30 statute of frauds to be in writing; for it is not for the sale of lands or goods, and may be performed within- a year. 23 But contracts to allow land to descend by mak- ing no will, 24 contracts to devise lands, 26 and indivisible contracts to devise lands and goods, 26 must be in writ- ing, signed by the testator, unless there has been such a part performance as will take the case out of the opera- tion of the statute. 26a Where the promise was in con- sideration of the promisee living with the promisor, as his or her child or servant, several courts have held that the operation of the statute is avoided by the promisee performing his part faithfully till the death of the promisor; 27 but other courts have held these acts insuf- ficient. 28 Though the contract be void for want of writ- ing, it may be given in evidence in an action on a quantum meruit, for the purpose of rebutting the pre- sumption that the services, being rendered by a member of the family, were gratuitous, and the promisee must be allowed to recover, 29 the measure of damages in such cases being the value of the services, not the value of the promised devise. 30 son v. Orth (1901), 40 Ore. 252, 66 427, 74 Am. St. Rep. 490; Burns v. Pac. 925. See also Hart v. Hart Smith (1898), 21 Mont. 251, 53 Pac. (1898), 57 N. J. Eq. 543, 42 Atl. 153. 742; Quinn v. Quinn (1894), 5 S. Dak. 23 Wellington v. Apthorp (1887), 328, 58 N. W. 808, 49 Am. St. Eep. 145 Mass. 69, 13 N. E. 10, Mechem 85. 875; Healey v. Simpson (1892), 113 But see Orth v, Orth (1896), 145 Ind. Mo. 340, 20 S. W. 881 ; Teske v. Ditt- 184, 42 N. E. 277, 57 Am. St. Rep. 185 ; berner (1902), Neb. 91 N. W. 181; Whiton v. Whiton (1899), 179 111. 32, Lipe v. Houck (1901), 128 N. Car. 115, 53 N. E. 722. 38 S. E. 297. Though death occurred 24 Dicken v. McKinley (1896), 163 38 hours after promisee's arrival. 111. 318, 45 N. E. 134. Howe v. Watson (1901), 179 Mass. 30, 26 Manning v. Pippen (1888), 86 60 N. E. 415. Ala. 357, 5 South. 572, 11 Am. St. 28 Shahan v. Swan (1891), 48 Rep. 46. Ohio St. 25, 26 N. E. 222; Grant v. 20 Shahan v. Swan (1891), 48 Ohio Grant (1893), 63 Conn. 530, 29 Atl. St. 25, 26 N. E. 222 ; Pond v. Sheean 15, 38 Am. St. Rep. 379 ; Pond v. (1890), 132 111. 312, 23 N. E. 1018, 8 Sheean (1890), 132 111. 312, 23 N. E. L, R. A. 414. 1018, 8 L. R. A. 414. 26a A parol promise by a grantee in 29 Williams' Estate (1895), 106 consideration of the conveyance to him Mich. 490, 64 N. W. 490 ; Ellis v. Cary that he will give it to another by will (1889), 74 Wis. 176, 42 N. W. 253, 17 is not within the statute of frauds. Am. St. Rep. 125. Bird v. Jacobus (1901), 113 Iowa 194, 30 Collier v. Rutledge (1892), 136 84 N. W. 1062. N. Y. 621, 32 N. E. 626 ; Hudson v. 27Svanberg v. Fosseen (1899), 75 Hudson (1891), 87 Ga. 678, 13 S. H. Minn. 350, 78 N. W. 4, 43 L. R. A. 583. 31 DEFINITION, NATURE AND KINDS. § 56-57 § 56. Remedies of the Promisee of Bequests. There is little that is peculiar about remedies under such con- tracts. If the contract is broken by the promisor the promisee may recover the consideration paid by him 31 and recover damages for the breach of the contract; or have the specific property, unless it be personal property for which damages would be an adequate remedy, 32 or unless the property has passed into the hands of a bona fide purchaser. But the remedies being inconsistent, the election of one prevents further resort to the others. 33 § 57.— —Remedies of Promisee of Devises. In any case damages for breach of a valid contract to devise may be recovered against the estate. 33a When contracts to de- vise lands have been carried into effect in the lifetime of the promisor, by his putting the promisee into posses- sion, he may defend against all acts of the promisor and his assignee seeking to avoid the contract. 34 If the agree- ment has not been carried out and the promisor repudi- ates and endeavors to avoid it, the promisee is not bound to wait till the death of the promisor, when it may be too late, but may file a bill quia timet at once and have a de- cree that the land is held in trust for him. 35 If the promisor has died without making the proposed will, has devised the land to another, given it away by deed, or sold it for value to one having notice of the prior con- tract, a court of equity will declare the property subject to the trust and compel the holder of the legal title to 31 Lisle v. Tribble (1891), 92 Ky. 33 Laird v. Laird (1897), 115 Mich. 304, IT S. W. 742. Or the value of 352, 73 N. W. 382. his services. Clark v. West (1903), 33a Allbright v. Hannah (1897), 103 — Tex. — , 73 S. W. 797. i ow a, 98, 72 N. W. 421. See also Tay- 32 The promisor having died in pos- j or v . Brinkley (1902), 131 N. Car. 8, session without having made the prom- 42 s. B. 336. ised will, the administrator was or- 34 BM v pope (lg89)j 73 Mjch dered at the suit of the promisee to 483i 41 N w 514 . Carmicnael v . Car . deliver the specific stocks. Crofut v. micnael (188g) 72 Micn 76 16 Am Layton (1896), 68 Conn. 91, 35 Atl gt Rep 528 _ 1 L R A 596> 4Q N 783. Specific recovery was allowed w . 173 . Tuit v . gmitn ( i 890 ), 137 Pa. . against a purchaser with notice m gt 2Q At , Cna p lin 4 i 8 , 26 W. Newton v. Newton (1891), 46 Minn. N c 56g 33, 48 N. W. 450 ; and against a donee in Whiton v. Whiton (1899), 179 111. 35 Duvale v. Duvale (1896), 54 N. 32, 53 N. B. 722. J Bq. 581, 40 Atl. 440. § 58 WILLS. 32 convey it to the promisee. 36 This is often spoken of as specific performance ; but it is not strictly such. It would be useless to compel the party to make the agreed will, for wills are revocable; and after his death the court cannot make a will for him, nor incorporate the provision into any will he may have made. The proof of the fact and terms of the contract must be clear and cogent and the arrangement equitable or relief will not be given. 37 A slight digression on the law of contracts has seemed necessary in connection with the remarks made to dis- tinguish wills from contracts, a distinction suggested by the word "voluntary," in the definition. §58. "Disposition." — -As to Papers in Regular Form of Wills. The word "disposition" suggests the purpose and intention, technically termed the animus testandi, or animus disponendi which is the very essence of the will. The transaction cannot operate as a disposi- tion unless a disposition was intended. The design to have it so operate is the very soul of the instrument. A will in form may be executed by one who has not sufficient mental capacity to understand the nature of the act ; but the essential intent is lacking; it is not a will. 38 If the deceased was coerced to make it, the form may be regular, but it lacks the essential sanction; it is not his will. 39 If, in executing it, he supposed he was executing some other instrument, a certain deed or another will, there is the same fatal defect; it is not his will. 40 If he started out to 36Bolman v. Overall (1886), 80 Ala. Winne (1901), 166 N. T. 263, 59 N. 451, 2 South. 624, 60 Am. Eep. 107 ; E. 832, 82 Am. St. Rep. 647 ; Richard- McCabe v. Healy (1902), 138 Cal. 81, son v. Orth (1901), 40 Ore. 252, 66 70 Pac. 1008; Parsell v. Stryker Pac. 925; Stellmacher v. Bruder (1869), 41 N. T. 480, Chaplin 411; (1903, Minn.), 95 N. W. 324; Steele Teske v. Dittberner (1902), Neb., 91 v. Steele (1900), 161 Mo. 566, 61 S. N. W. 181; Burdlne v. Burdlne (1900), W. 815; McElvain v. McElvain (1902), 98 Va. 515, 36 S. E. 992, 81 Am. St. 171 Mo. 244, 71 S. W. 142. Rep. 741; Emery v. Darling (1893), 38 See post §§ 109-114. 50 Ohio St. 160, 33 N. B. 715 ; New- 39 See post §§ 175-191. ton v. Newton (1891), 46 Minn. 33, 40 In re Goods of Hunt (1875), L. 48 N. W. 450; Bruce v. Moon (1899), R. 3 P. & D. 250, Mechem 30, Abbott, 57 S. Car. 60, 35 S. E. 415. p. 264; Nelson v. McDonald (1891), 37 Holmes v. Connable (1900), 111 61 Hun (N. Y.), 406; Alter's Appeal Iowa, 298, 82 N. W. 780; Winne v. (1871), 67 Pa. St. 341. 33 DEFINITION, NATURE AND KINDS. 59 make a will, but never completed it, he had never intended it as a disposition; it is not his will. 41 If he made it in sport, or to show how a will might or should be drawn, the intention to have it operate is equally lacking; it is not a will. 42 Any of these facts may be shown by parol to prove that an instrument perfectly regular in form is not a will, because never intended to operate as such. 43 §59. Memoranda and Statements of Intention. A statement made by the deceased to inform others as to how he intended at some future time to make his will, 44 or prepared as a memorandum for the use of himself or his scrivener, in drawing such future will, 45 equally lacks 4i See post § 225. 42 Nichols v. Nichols (1814), 2 Phil- lim. Ecc. 180, Abbott p. 270, Chaplin 253; Lister v. Smith (1863), 3 Swab. & Tr. 282, Chaplin 250. 43 See the cases referred to under each of the above heads. 44 In some of the following cases a testamentary intention was found ; in others none was discovered. Richard- son's Estate (1892), 94 Cal. 63, 29 Pac. 484; 15 L. E. A. 635; Skerrett's Estate (1885), 67 Cal. 585; Byers v. Hoppe (1883), 61 Md. 206, 48 Am. Rep. 89; Meade's Estate (1897), 118 Cal. 428, 50 Pac. 541. "If a man, when he is in perfect health, be demanded who shall be his executor, or have his goods after his death (which question is very com- mon), and he forthwith nameth some person to whom he saith he will leave his goods after his death ; this is not to be taken for a testament or last will, neither is that person .named to be admitted executor, nor to have his goods ; unless it be proved, that the testator, at the time when the words were spoken, has animus testandi, that is to say, a mind and purpose then and thereby to make his testament or last will. Which mind and purpose must be proved by circumstances, as words alone are not sufficient : as that he set- tled himself seriously to the making of his last will, being then perhaps very sick, or required them which were present to bear witness of his will. Otherwise, even as the opinion of a judge, being delivered privately, or ex- 3 trajudicially, touching the event of any suit, is but. a prediction of that which is likely to ensue, and not the sentence itself or final judgment, whereby the controversy is decided ; which sentence ought to be pronounced judicially, after due examination of the cause : so, when the testator doth only foretell whom at some other time he doth in- tend to make his executor, this is but a signification of a future act, and so not the testament itself ; wherein is required present and perfect consent." Swinburne on Wills f8. 45 "Directions how I want my will wrote," written at the beginning of a plan of disposition in the hand and signed by the deceased, was held to show want of testamentary intent. Hocker v. Hocker (1848), 4 Gratt. (Va.) 277. Compare Mathews v. War- ner (1798), 4 Ves. 186, 209. Several disconnected entries in a pocket memorandum book, being of- fered, probate was denied, the court saying, "There is then no intrinsic evi- dence that the decedent, in writing down the items in question in his mem- orandum book, intended them as his will. Is there any extrinsic evidence that he Intended them as such? His declarations, as to the will he had made and the bequests he had given, are relied on for this purpose. But there is no evidence that he referred to the items in the memorandum book as the will he had made." Patterson v. English (1872), 71 Pa. St. 454, 45.9. Compare In re Gaston's Estate (1898), 188 Pa. St. 374, 41 Atl. 529; §60 WILLS. 34 the animus testandi, without which a will is impossible. It is not material that the deceased did not call the thing a will himself, nor that he did not know what a will is. Did the deceased intend by this transaction to direct the disposition of his property after his death? That is the question. If he did it is a will; if he did not, it is not. §60. Peculiar Papers Sustained as Wills. The in- tention is the whole question; the form is unimportant ex- cept as it sheds light on this question. "This is to serif y that ie levet to mey wife Eeal and personal and she to dis- pose for them as she wis," was recently, and very prop- erly, sustained as a will. 46 In form the writing may be an indorsement on the back of a promisory note, 47 an entry in a diary, 48 a letter to the donee or some other person, 49 an order, a deed, a contract, a power of attor- Jacoby's Estate (1899), 190 Pa. . St. 382, 42 Atl. 1026. A will in regular form was held en- titled to probate without proof that it was intended to operate as a will, though the deceased' had entitled it, "Notes of Intended Settlement," be- cause the indorsement was not suffi- cient to rebut the inference raised by the form of the instrument. Whyte v. Pollok (1882), 7 App. Cas. 400. Com- pare In re Beebe (1888), 6 Dem. Sur. (N. Y.) 43. "This is not meant as a legal will, but as a guide," was held to prevent probate of a. letter of instructions to the executors of the deceased's will. Ferguson-Davie v. Ferguson-Davie (1890), L. B.-15 Pro. Div. 109. "Hon. John Dalzell, attorney. Dear Sir : Will you kindly, at your earliest convenience, cause a will to be made for me. First, providing," etc. This letter being witnessed, was admitted to probate as a will on proof that de- ceased called it his will. Scott's Es- tate (1892), 147 Pa. St. 89, 23 Atl. 212, 29 W. N. C. 176. 46 Mitchell v. Donohue (1893), 100 Cal. 202, 34 Pac. 614. "March th 4 will my Properti to my wief my death John Sullivan," was a valid will. Sul- livan's Estate (1889), 130 Pa. St. 342, 18 Atl. 1120. 47 Hunt v. Hunt (1828), 4 N. Hamp. 434, 17 Am. Dec. 438. 48 Reagan v. Stanley (1883), 79 Tenn. (11 Lea) 316. 49 Letters as Wills. "I have pros- pered and accumulated, * * * and 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 ; Ann, keep this to yourself. J. Henry Hoppe. To Eliza Ann Byers." Held to be a will. Byers v. Hoppe (1883), 61 Md. 207, 48 Am. Rep. 89. "Dear Old Nance : I wish to give yon my watch, two shawls, and also $5,000. Your old friend, E. A. Gor- don." This was held to be a will. Clarke v. Ransom (1875), 50 Cal. 595. In a box kept by the deceased were found a deed of land from him to his sister, and a letter in his hand, ad- dressed to her, in which he informed her that he had executed the deed, and that it could be made operative at any time by recording it. In the letter he said, "We all know that life is uncer- tain 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 circum- stances." The deed and letter together were held to constitute a will. Sker- rett's Estate (1885), 67 Cal. 585. A letter was allowed probate as a will, which had been written by the de- ceased to a friend, and contained the following: "A thousand accidents 35 DEFINITION, NATUBE AND KINDS. §61 ney, or a nondescript. 4981 It need not dispose of all of the decedent's property 50 nor appoint an executor. Of course, it cannot be given effect as a will unless it com- plies with the statutes of the state as to signing, wit- nesses, publication, etc. ; 51 but the point I am now trying to emphasize, is, that a will is a testamentary disposi- tion, something intended to operate as a disposition; if a disposition was not intended it can not be a will. 52 If a posthumous disposition was intended it is a will— valid if the statute as to executing wills is complied with, otherwise void; but no precise language is essential. § 61. Knowledge of Contents. The law gives effect to the will of no other than the testator. He must know what the will provides. On demurrer to a plea that the testator did not know the contents of the will, the plea was held good. The question will not often arise ; but the court said in this case that if the testator should deliber- may occur to me which might deprive my sisters of that protection which it would be my study to afford ; and in that event I must beg that you will at- tend to putting them in possession of two-thirds of what I may be worth, appropriating one-third to Miss C. and her child, in any manner that may ap- pear most proper." Morrell v. Dickey (1814), 1 Johns. Ch. (N. T.) 153. Similar cases are High's Appeal (1847), 2 Doug. (Mich.) 515; Grattan v. Appleton (1847), 3 Story C. C. 755, Fed. Cas. No. 5707 ; Mundy, Goods of (1860), 2 Sw. & Tr. 119. On an envelope were the words, •'Dear Bella, this is for you to open." Inside were a note for $2,000, and a letter reading, "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 sustained as a will. Fosselman v. Elder (1881), 98 Pa. St. 159. A similar case is Tozer v. Jackson (1894), 164 Pa. St. 373, 30 Atl. 400. But see Jacoby's Estate (1899), 190 Pa. St. 382, 42 Atl. 1026. A letter was addressed to no one in particular, precatory in form. "A few things I would love to have done. * * * Please let sister have my house rent as long as she may live." This was held to be a will. Knox's Estate (1890), 131 Pa. St. 220, 18 Atl. 1021. See also note 15 L. R. A. 635. 49a See post §§ 73-75 to distinguish deeds &c, from wills. 50 Wilson v. Hays (1900), — Ky. — , 58 S. W. 773. 51 Cover v. Stem (1887), 67 Md. 449, 10 Atl. 231, Abbott p. 187. "Gents: of the 730 government 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 pos- session. * * * At her death to re- vert to my heirs. The above assign- ment to take effect at my death, I con- trolling them in the meantime." This was held to have been made as a will, and therefore void for want of wit- nesses. Comer v. Comer (1887), 120 111. 420, 11 N. E. 848. 52 A paper in due form as a will was denied probate on the ground that it was not intended as a disposition. It declared : "I, Hiram Coffman « * « do make and ordain this to be my last will. * * * It is my will that my son William * * * be excluded from all my estate at my death, and have no heirship in the same." Coff- man v. Coffman (1888), 85 Va. 459, 8 S. E. 672. See also post § 497. §§ 62-64 WILLS. 36 ately execute an instrument as his will, which he had delegated another to draw, and as to the provisions of which he had no knowledge, it could not be allowed as his will. 53 Knowledge of the contents will usually be presumed on proof of due execution by one having testa- mentary capacity; and able .to see, hear, and read. 54 §62. Evidence to Prove Intention. Usually no proof of testamentary intent is required, for it sufficiently appears on the face of the paper. 55 But if there be any doubt on the matter, the circumstances under which the will was executed may be shown in detail. 56 § 63. Conditional and Alternative Wills— Validity. From what has been said it must not be inferred that the thing is a will only when the disposition is absolute. There seems never to have been any doubt of the validity of provisions which were to have effect only upon a cer- tain event happening, or for one disposition in one event and for a different one in another event ; provided always that they were not void for uncertainty, and violated no positive rule of law, for example, the rule against per- petuities. There is no reason on principle why the condi- tion or alternative may not be made to apply to the whole will as well as to any part of it; and that it may be, has always been held whenever the point has been raised. 57 §64. Creating Power in Will to Avoid It. The event named is usually a casualty; but the condition on which the effect of the will or any provision of it is made to depend, may be the approval of a third person, to be ex- pressed after the death of the testator. Though one can- not delegate to another the power to make his will for him, he may by will create a power, and that power may 53 Hastilow v. Stobie (1865), L. E. St. 476, 42 Atl. 886; Smith v. Holden 1 P. & D. 64, Abbott p. 290. (189T), 58 Kan. 535, 50 Pac. 447; 54 Maxwell v. Hill (1891), 89 Tenn. Clarke v. Ransom (1875), 50 Cal. 595. 584, 15 S. W. 253, Chaplin 258. And 67 Parsons v. Lanoe (1748), 1 Ves. see post § 276. Sr. 189, Ambler 557 ; Damon v. Da- 56Whyte v. Pollok (1882), L. E. 7 mon (1864), 90 Mass. (8 Allen) 192, App. Cas. 400. Abbott p. 189. 56 K.isecker's Estate (1899), 190 Pa. 37 DEFINITION, NATURE AND KINDS. 65 be to declare the will itself, or any part of it, operative or not, as the donee of the power may choose. 58 §6*5. Construction of Expression, Condition or In- ducement. There is often a question as to whether the event is named as a circumstance which induced the mak- ing of the will at that time, or is intended to create a con- dition to its operation; and if as a condition, whether it is intended to apply to the whole will, or only to the provi- sion next to which it stands. This is a question for the court, not for the jury. 59 Scarcely two cases will be found in which the form of expression is exactly the same; and different courts, or the same court at different times, might come to different conclusions as to the meaning of similar language. It is purely a question of intention. 60 The courts generally treat the statement as inducement for making the will, if possible; and if clearly a condi- tion, to restrict its operation to the immediate clause or 58 Dudley v. Weinhart (1892), 93 Ky. 401, 20 S. W. 308. "What the tes- tator has tried to do in this case is, he has endeavored to leave it to his wife to say whether or not this testa- mentary paper shall he operative. He has declared it to be operative or not, according to a certain event, namely, his wife's determination. The court will be anxious to carry out his wishes, if it be able to do so within the pro- visions of the law ; and the question is, whether the object of the testator is illegal. I think not. It is true that a testator cannot confide to another the right to make a will for him, and it is equally true that he cannot leave to another a power to revoke his will after his death, because the statute says that wills shall be revoked only in the manner prescribed by it, and if a will be destroyed by some person other than the testator, it must be de- stroyed in the presence of the testator, and by his direction ; but there is noth- ing in the statute to prevent a man from saying that the question whether a paper shall be operative or other- wise shall depend upon an event to happen after his death. Neither com- mon sense nor the words of the stat- ute are opposed to such a proposition. * * * I think the intention of the testator in this case was lawful, and as his wife has exercised her option by refusing to recognize the second co- dicil as testamentary, I decree probate of the will and first codicil only." Smith, in goods of (1869), L. R. 1 P. & D. 717. See Burke's Succession (1899), 51 La. An. 538, 25 So. 387, holding that the selection of a resi- duary legatee cannot be left to the executors of the will. 69Magee v. McNeil (1866), 41 Miss. 17. 60 Wills Held Conditional. "I am going to town with my drill and i aint feeling good and in case if i shouldend get back do as i say in this paper," was held to be a conditonal will, and was denied probate because the testa- tor did not die before his return. In this case the testator became seriously ill on the way, was brought home sick, grew rapidly worse, and died six days later. The court reviews a number of decisions. Morrow's Appeal (1887), 116 Pa. St. 440, 9 Atl. 660, 2 Am. St. Eep. 616, Chaplin, 401. In the fol- lowing cases wiils were held to be conditional on events which had turned out against them, for which reason probate was denied. Lindsay §§ 66-67 WILLS. 38 provision, rather than believe that the testator meant it to affect the whole will. 61 § 66. Evidence to Prove Condition. Parol evidence is not competent to show that a will absolute on its face was intended to have effect only on a certain condition, 62 that a will expressly conditional was intended to be abso- • lute, 63 nor that after the event turned out against the instrument the testator declared it to be his will never- theless; 64 for that would be making out a will by parol which the statute requires to be in writing. But in case of doubt, parol evidence is competent for the purpose of showing the circumstances under which it was made, so that the language may be correctly interpreted. 65 § 67. Probate of Conditional and Alternative Wills. The instrument is denied probate when the whole of it is made to depend on an event which turns out against it during the lifetime of the testator, 66 or after his death but before probate, 67 or which had not happened when T. Lindsay (1872), L. E. 2 P. & D. 192, Abbott p. 189; Ex Parte Lindsay 459; Dougherty v. Dougherty (1862), (1852), 2 Bradf. Sur. (N. T.) 204. 61 Ky. (4 Mete.) 25; Magee v. Me- 62 Sewell v. Slingluff (1881), 57 Md. Neil (1866), 41 Miss. 17; Robnett v. 537, Abbott p. 707. Ashlock (1872), 49 Mo. 171. 63 Parsons v. Lanoe (1748), 1 Ves. Statements Held to 6e Mere Induce- Sr. 189, Ambler 557. ment. "If any accident should hap- 64 Winn, in Goods of (1861), 2 Sw. pen to me that I die from home, my & Tr 147 _ C haplin 398 ; French v. wife, J. A. L., shall have everything French (1878), 14 W. Va. 458. A will I possess," was held to be mere induce- appearing on its face to be conditional, ment for making the will, which was paroI ev i de nce was received to show given effect though he died at home. that the eTent turne( i out againgt tne The court reviews a number of de- instrument before it was executed; cisions. Likefield v. Likefield (1885), wnicn provided the will to have been 82 Ky. 589, 56 Am. Rep. 908. For int ended to be absolute. Cawthron, in other cases see: Dobson, in Goods of g 00- 60 Md. 440. And see French v. French (1878), 14 W. Va. 458. That the tes- tator carefully kept the will after the event happened which would have de- feated it as a condition was held com- Prob. Div. 28 ; Tarver v. Tarver (1835), 34 TJ. S. (9 Peters) 174 ; Kel- leher v. Kernan (1883), 60 Md. 440; Damon v. Damon (1864), 90 Mass. (8 Allen) 192, Abbott p. 189; French v. , . ., French (1878), 14 W. Va. 458. £*"*■ ^ k ff* v " Llkefield (1885 >> 6! Spratt, in Go.* of (1896), L. 82 Ky - 589 ' 56 Am " Re P- 908 - R. 1897, P. D. 28, reviewing numerous 6e See cases clt ed above as illustra- cases; Likefield v. Likefield (1885), tlons of wills conditional. 82 Ky. 589, 56 Am. Rep. 908; Damon 67 Smith, in Goods of (1869), L. R. v. Damon (1864), 90 Mass. (8 Allen) 1 P. & D. 717. 39 DEFINITION, NATUBE AND KINDS. § 68 the testator died and by any possibility might happen later than the time allowed by the rule against per- petuities. In like manner, when the testator has made two wills, one to have effect in one event, and the other in the other event, if the event has happened by the time of probate, that one will be admitted which is favored by the event, and the other will be rejected. 68 If the event is not too remote, but has not happened by the time of probate, the will depending on the condition must be al- lowed probate as the will of the deceased, and when there are two wills and the effect of both or either is made to depend on an event which has not yet happened, both must be allowed probate as if they were one instrument or a will and codicil. 69 The effect of the conditional will, in the one case, and of the alternative wills in the other, remains unsettled by the probate, and depends on how the event turns out. It would seem more logical to admit the wills conditional or alternative to probate in every case, whether the event has happened or not; since the happening of the event touches the effect and operation, rather than the execution and existence of the will, is a matter more appropriate for the consideration of a court of construction than of a court of probate; but such has not been the practice, 70 except in a few cases in which the court of probate preferred to leave the doubt to be de- cided by the superior courts when the will should be brought up for construction. 71 § 68. "Of Property"— Wills not Disposing of Proper- ty. On the ground that a will is a disposition of property, it has been held, that a will executed under a statute re- 88 Hamilton's Estate (1873), 74 Pa. 70 This matter seems to have re- st. 69; Bradish v. McClellan (1882), eeived little attention since the case of 100 Pa. St. 607; Smith, in Goods of Parsons v. Lanoe (1748), 1 Ves. Sr. (1869), L. R. 1 P. & D. 717. An 189. "Why should it be proved as a earlier will was received of probate be- will when it could have no effect as cause the event had turned out against one." Morrow's Appeal (1887), 116 the revoking will. Robinson, in Goods Pa. St. 440, 9 Atl. 660, 2 Am. St. Rep. of (1870), L. R. 2 P. & D. 171. 616, Chaplin 401. See also, Todd's 69 In re Bangham (1876), L. R. 1 Will (1841), 2 W. & S. (Pa.) 145. P. D. 429 ; In re Cooper (1855), 1 71 Ex parte Lindsay (1852), 2 Bradf. Deane 9. Sur. (N. T.) 204, 209. § 68 WILLS. 40 quiring wills to be signed at the end is not vitiated by a provision after the signature if that provision did not attempt to dispose of property; 72 that a writing simply declaring whom the deceased wished to have appointed as guardian of his children in case of his death is not a will nor entitled to probate; 73 that a direction in the will as to who should have the testator's corpse and what he should do with it is not binding; 74 and that a writing which simply revoked all former wills is not a will nor entitled to probate. 75 The ruling that a simple revoking instrument is not a will finds support in the statute which provides that a will may be revoked by a later will or "other writing." But there are good reasons why such writings should be probated and kept on record; and they have several times been held to be testamentary instru- ments entitled to probate. 76 Again, the statutes in many of the states authorize the appointment of guardians by will, which a father might appoint at common law ; 7T and wills merely making such appointments are entitled to probate. 78 Moreover, it has always been held that a writ- ing which merely appoints an executor is a will entitled to probate, though it makes no attempt to dispose of any property at all. 79 So that the stoutest defenders of the definition are bound to admit that it is lame in that respect. Yet it is certainly true that most wills are made for the purpose of disposing of property. 72 Baker v. Baker (1894), 51 Ohio Still. (1850), same 162 ; Goods of Hub- St. 217, 37 N. E. 125. bard (1850), L. E. 1 P. & D. 53; Bay- 73 Morton, Goods of (1864), 3 Sw. ley v. Bailey (1849), 59 Mass. (5 & Tr. 422; Williams v. Noland (1895), Cusn.) 245, by Shaw, C. J. 10 Tex. CiT. App. 629, 32 S. W. 328. 77 Swinburne Wills, *209 et seq. ; 1 74Enos v. Snyder (1900), 131 Cal. B1- Com _ 453j iQ2 . 68, 63 Pac. 170, 82 Am. St. Rep. 330, , ow . * ., tt „ ,, ,,„»,-» „„ «U%.r. « oi« j ..cot 78Wardwell v. Wardwell (1865), 91 6 Prob. Rep. An. 314 and notes, 53 L. .. ,. ,„ . _,_ _\ '- _ R. A. 221, and see note 75 Am. St. Rep. r~ - <9 „ ^'foo 518 : W ° erner ° n 424; Williams v. Williams (1882), L. Guard.anship §20. R. 20 Ch. Div. 659. 79 Williams on Executors, *227 ; 75 Eraser, Goods of (1869), L. R. 2 Brownrigg v. Pike (1882), L. R. 7 P. P. & D. 40; or need not be probated: D. 61 ; Stewart v. Stewart (1901), 177 Rudy v. Ulrich (1871), 69 Pa. St. 177. Mass. 493, 59 N. E. 116; Mulholland 76Brenehley v. Lynn (1852), 2 Rob. v. Gillan (1903), 25 R. I. 67, 54 Atl. (Eng. Ecc.) 441, 468; Brenchley v. 928, reviewing many cases. 41 DEFINITION, NATCJEE AND KINDS. §§ 69-70 §69. "To a Competent Donee. By Anyone Compe- tent." The comptence of the donee 80 and donor 81 will he considered later. §70. Joint, Double, Mutual, and Simultaneous Wills — Validity. t In connection with the phrase "any one," in the definition, let it be remembered, that, in the nature of things, a will cannot be the will of more than onesperson; it cannot be joint. It must take effect on the death of the maker, and not before. If it becomes effect- ive before, it is not a will ; 82 if it cannot take effect then, it cannot take effect at all. 83 This makes joint wills impos- sible; for one of several persons cannot die for all; they cannot arrange to die simultaneously; and if such a thing should happen, the deaths would be none the less several. Contracts may be joint; for it may be agreed that a joint delivery shall be made by one for all. Therefore, a joint will is an instrument unknown to the law. 84 Yet there is no reason why several persons may not execute the same paper as expressing the disposition of their property, which they desire to have made after their deaths, whether the property thus disposed of be owned by them severally or jointly; and such wills should be and gener- ally have been sustained— not as the joint will of all, but as the several will of each; 85 provided, of course, that if it appears, on the face of the paper that to give effect to it as the sole will of any, would be contrary to his inten- tion, or it is impossible to ascertain how he would have 80 See post §§ 193-213. Richards (1883), 95 Ind. 184; Hill v. 81 See post §§ 103-151. Harding (1891), 92 Ky. 76, 17 S. W. tSee notes 10 L. E. A. 94, 68 Am. 199; In re Davis's Will (1897), 120 N. Dec. 407-410. Car. 9, 26 S. E. 636, 38 L. R. A. 289 82 See post §§ 73-75. and note, 58 Am. St. Rep. 771, over- 83 Hershy v. Clark (1879), 35 Ark. ruling Clayton v. Liverman (1837), 19 17, 37 Am. Rep. 1 ; State Bank v. Bliss N. Car. (2 Dev. & B.) 558 ; In re Diez's (1896), 67 Conn. 317, 35 Atl. 255. But Will (1872), 50 N. T. 88, Mechem 81; see ante § 67. Betts v. Harper (1884), 39 Ohio St. 84 Earl of Darlington v. Pulteney 639, 48 Am. Rep. 477, Mechem 83, Ab- (1775), 1 Cowp. 260. hott p. 193; In re Cawley's Estate 85 Lewis v. Scofleld (1857), 26 Conn. (1890), 136 Pa. St. 628, 20 Atl. 567, 452, and note to same case in 68 Am. 10 L. R. A. 93, Mechem 32 ; Wyche v. Dec. 404, 407; Evans v. Smith (1859), Clapp (1875), 43 Tex. 543; March v. 28 Ga. 98; 73 Am. Dec. 751; Black v. Huyter (1878), 50 Tex. 243. §§ 71-72 WILLS. 42 it operate as his sole will, it cannot operate as his will. 86 § 71. Time and Manner of Probating Such Wills. If all the makers die before it has been probated, it may be probated as the sole will of each at the same time. 87 But it may and should be probated as the will of the one who dies first, without waiting for the death of the other; 88 and cannot then be probated as the will of the other, for no man's will can be probated while he lives. 89 When the other afterward dies, it should be probated as his will 90 unless he has revoked it in the meantime. § 72. Revocability of Such Wills. A revoked double, joint, or mutual will, cannot be probated as the will of him who revoked it, though the other testator executed in consideration of his executing. 91 The mere execution of the wills cannot support a claim against the estate of one who has executed and afterwards revoked a mutual or reciprocal will; for the wills are not such writings as satisfy the statute of frauds, and the maker of the will has parted with nothing and can still revoke his will. 92 But if to the making of the will be added the death of the maker without revoking it, a sufficient valuable con- sideration is found to bind the other party and his es- tate, 93 a matter already discussed at some length in speaking of contracts to make wills. 94 The mere fact that sisters make wills containing similar provisions at 86 State Bank v. Bliss (1896), 67 91 Hobson v. Blackburn (1822), 1 Conn. 317, 35 Atl. 255 ; Walker v. Addams Bcc. 274 ; Shumaker v. Schmidt Walker (1862), 14 Ohio St. 157, 82 (1890), 44 Ala. 454, 4 Am. Rep. 135; Am. Dec. 474. Abbott p. 194 ; In re Cawley's Estate, 87Betts v. Harper (1884), 39 Ohio 136 Pa. St. 628, 20 Atl. 567, 10 L. B. St. 639, 48 Am. Eep. 477, Mechem 83, A. 93, Mechem 32 ; Hale v. Hale Abbott p. 193; Black v. Richards (1894), 90 Va. 728, 19 S. E. 739. (1883), 95 Ind. 184. 92 Hale v. Hale (1894), 90 Va. 728, ss Evans v. Smith (1859), 28 Ga. 19 S. E. 739; Gould v. Mansfield 98, 73 Am. Dec. 751; In re Davis's (1869), 103 Mass. 408, 4 Am. Rep. Will (1897), 120 N. Car. 9, 26 S. E. 573, Chaplin 416. Contra: ' Turnlp- 636, 38 L. R. A. 289, 58 Am. St. Rep. seed v. Sirrine (1899), 57 S. Car. 559, 771 ; Wyche v. Clapp (1875), 43 Tex. 76 Am. St. Rep. 580, 35 S. E. 757. 543. 93 In re Cawley's Estate (1890), 136 89 In re Davis's Will, supra; Wyche Pa. St. 628, 20 Atl. 567, 10 L. R. A. v. Clapp (1875), 43 Tex. 543. 93, Mechem 32. 90 Lovegrove, in Goods of (1862), 2 94 See ante §§ 53-56. Sw. & Tr. 453, Chaplin 421. 43 DEFINITION, NATUBE AND KINDS. § 73 the same time raises no presumption that one was made in consideration of the other; to bind the estate of either, a contract must he clearly shown. 95 § 73. "To Take Effect upon the Death of the Testa- tor. " 95a To take effect suggests the matters discussed in considering the word disposition, that is, that the instru- ment is intended to take effect; but in this connection, at- tention is directed to the posthumous operation of the in- strument, as one of the essentials of a will. The practical importance of the question arises from the difference in the essentials of validity. A will is valid without deliv- ery; a deed is not. A deed is usually valid without wit- nesses, a will is not. A will is a disposition intended to become operative only upon the death of the maker. One instrument may consist of several parts, some of which are intended to become effective at once, and others to operate as a will; and such intention appearing, the testa- mentary part will be given effect and allowed probate as a will. 96 But in so far as the instrument was to be given effect before the death of the maker, it cannot be allowed probate or given effect as a will. If it passes a present in- terest it is a deed or contract and not a will, although the right of the grantee to possession and enjoyment of his estate be postponed and made to depend and accrue on the death of the grantor. And on the other hand, if the interest is not to vest in the claimant nor to pass out of the maker till the death of the maker, the instrument can- not be given effect as a deed, but only as a will; and it matters not that the form and disposing words are those usually found in deeds. 97 95 Edson v. Parsons (1898), 155 N. University v. Barrett (1867), 22 Iowa, T. 555, 50 N. E. 265 ; Wyche v. Clapp 60, 73, 92 Am. Dec. 376 ; Hazleton v. (1875), 43 Tex. 543. Reed (1891), 46 Kan. 73, 15 Pac. 177, 95a See extended notes on convey- 26 Am. St. Rep. 86 ; In Goods of Rob- ances to take effect on death. 49 Am. inson (1867), 1 P. & D. 383; Stewart St. Rep. 219-222, 89 Id. 486-500, 92 v. Stewart (1901), 177 Mass. 493, 59 Am. Dec. 383-389, 4 Pro. R. A. 217-225. N. E. 116. 96 Kinnebrew v. Kinnebrew (1860), 97 Habergham v. Vincent (1793), 2 35 Ala. 628; Gomez v. Higglns (1900), Ves. Jr. 204, 4 Bro. C. C. 355 (a lead- 130 Ala. 493, 30 So. 417; Robinson v. ing case) ; Sharp v. Hall (1889), 86 Schley (1899), 6 Ga. 515; Burlington Ala. 110, 5 South. 497, Mechem 34, 11 §§ 74-75 WILLS.- 44 § 74. Difficulty is in Discovering Intent. This is a subject as to which the courts find much less difficulty in agreeing upon the true test of distinction than in apply- ing the test to particular cases as they arise. The pos- sible variety of expression is limitless, and the circum- stances are equally varied. "Almost every conceivable form of conveyance, obligation, or writing, by which men attempt to convey, bind, or declare the legal status of property, have, even in courts of the highest character, been adjudicated to be wills. The form of the instrument stands for but little. * * * The intention of the maker is the controlling inquiry, and that intention is to be gathered primarily from the language of the instru- ment itself." 98 § 75. Circumstances Indicating Intention. That the form and words are more appropriate for a deed than for a will deserves consideration when it is doubtful whether the maker intended a present or a posthumous transfer. But the presumption raised by this fact is very weak, for it is quite as likely to be due to ignorance of proper form. That he called it a will, deed, contract, or something Am. St. Rep. 28; Bunch v. Nicks (1855), 30 Miss. 91, 64 Am. Dec. 147; (1888), 50 Ark. 367, 7 S. W. 563; Piukham v. Pinkham (1898), 55 Neb. Nichols v. Emery (1895), 109 Cal. 323, 729, 76 N. W. 411 ; Diez's Will (1872), 41 Pac. 1089, 50 Am. St. Rep. 43 ; 50 N. Y. 88, Mechem 81 ; Robinson v. Wynn v. Wynn (1900), 112 Ga. 214, Ingram (1900), 126 N. Car. 327,' 35 37 S. B. 378; Robinson v. Brewster S. B. 612; Frew v. Clarke (1875), 80 (1892), 140 111. 649, 30 N. E. 683, Pa. St. 170; Babb v. Harrison (1856), Abbott 295, Chaplin 395, 33 Am. St. 9 Rich Eq. (S. Car.) Ill, 70 Am. Dec. Rep. 265; Kelley v. Shimer (1899), 152 203; Ellis v. Pearson (1900), 104 Ind. 290, 53 N. B. 233, reviewing nu- Tenn. 591, 58 S. W. 318 ; DeBajligethy merous decisions holding writings were v. Johnson (1900), 23 Tex. Civ. App. deeds; Leaver v. Gauss (1883), 62 272, 56 S. W. 95; Lauek v. Logan Iowa, 314, 17 N. W. 522, 19 Cent. L. (1898), 45 W. Va. 251, 31 S. E. 986. J. 46; Tuttle v. Raish (1902), 116 Since the statutes now permit lands Iowa 331, 90 N. W. 66 ; Hazleton v. to be conveyed without livery of seizin, Reed (1891), 46 Kan. 73, 15 Pac. 177, it is no longer any objection that a fu- 26 Am. St. Rep. 86 ; Phillips v. Thomas ture estate is created without an in- L. Co. (1893), 93 Ky. 445, 22 S. W. termediate estate to support it. It 652, 42 Am. St. Rep. 367 ; Bromley v. may still take effect as a deed. Lati- Mitchell (1892), 155 Mass. 509, 30 N. mer v. Latimer (1898), 174 111. 418, E. 83; Hitchcock v. Simpkins (1894), 51 N. B. 548. 99 Mich. 198, 58 N. W. 47; Lincoln v. 98 Sharp v. Hall (1889), 86 Ala. 110, Felt (1902), — Mich. — , 92 N. W. 5 South. 497, Mechem 34, 11 Am. St 780; Conrad v. Douglas (1894), 59 Rep. 28. Minn. 498, 61 N. W. 673 ; Wall v. Wall 45 DEFINITION, NATURE AND KINDS. 75 else, is not very important; for the chances are that his notion of the meaning of these terms was not very accu- rate. Yet his declaration that the paper was his will, and his orders to the scrivener to draw a will, have sufficient weight to make parol proof of them competent, to aid the court in determining the purpose of a doubtful writ- ing." That the instrument was never delivered, or had not enough witnesses subscribing to make it operative as a will, or had more than a deed requires, are f acts which the court will consider in endeavoring to discover the in- tention, 1 and will incline to that construction which would make the instrument a valid one and operative. 2 The whole question is one of intention, to be gathered from the four corners of the instrument and all the cir- 90 Sharp v. Hall (1889), 86 Ala. 110, 5 South. 497, Mechem 34, 11 Am. St. Rep. 28; Robinson v. Brewster (1892), 140 111. 649, 30 N. E. 683, Abbott p. 295, 33 Am. St. Rep. 265, Chaplin 395 ; Scott's Estate (1892), 147 Pa. St. 89, 23 Atl. 212, 29 W. N. C. 176; Wither- spoon v. Witherspoon (1823), 2 McCord (S. Car.), 520; Smith v. Holden (1897), 58 Kan. 535, 50 Pac. 447. Effect of Form and Title. Wood- ward, C. J. "Not whether the parties called it a deed, not whether it con- tained the customary words of a deed ; but whether, according to the inten- tions expressed upon the face of the instrument, it can, in law, have the ef- fect and operation of a deed — this is our question ; and it is very important to place before our minds, in a very distinct light, the instrument to be in- terpreted. John Scott, an old man living on his farm, made, what is called, 'This Indenture' to his son, John W. Scott, at the above mentioned date, upon a consideration of natural love and affection, and 'also that the said John W. Scott hath this day agreed to live with said John Scott, and labor for and assist him.' * * • The testator called and treated the deed as a will, but not until after he had quarreled with his son and turned him out of possession. When he made the instrument he called it an inden- ture, and permitted his son to record it as a deed. His treatment of it as a will therefore proves nothing." The court held the instrument was a will. Turner v. Scott (1866), 51 Pa. St. 126 ; followed in Coulter v. Shelmadine (1902), 204 Pa. St. 120, 53 Atl. 638. An instrument in form "I agree to will" was sustained as a will in Lon- ger's Estate (1899), 108 Iowa, 34, 78 N. W. 834. "A will between Staale Simonson and Hans Larson. I, Staale Simonson, being a single man, about sixty-four years of age, and have never been mar- ried, and have no children, I have made agreement with Hans Larson that h$ is and shall take care of me from this day to my death day ; and I, Staale Simonson, give him all my goods and chattels and real estate," &c. This was held to be a deed. Evenson v. Webster (1892), 3 S. Dak. 382, 53 N. W. 747, 44 Am. St. Rep. 802. "To whom it may concern : This is good to P. for $800, as payment for care * * * to be collected out of my es- tate," was sustained as a will, being duly executed. Ferris v. Neville (1901), 127 Mich. 444, 86 N. W. 960, 54 L. R. A. 464. i Lautenshlager v. Lautenshlager (1890), 80 Mich. 285, 45 N. W. 147; Bromley v. Mitchell (1892), 155 Mass. 509, 30 N. E. 83 ; compare Davis v. Williams (1880), 57 Miss. 843. 2Wynn v. Wynn (1900), 112 Ga. 214, 37 S. E. 378; Jacoby v. Nichols (1901, Ky.), 62 S. W. 734. § 76 WILLS. 46 cumstances of its execution. Did the maker intend to create a present right to a future enjoyment? If he did it is not a will; for a will is a disposition to take effect upon the death of the testator. §76. "Unless Sooner Revoked." This is the only phrase of the definition of a will not yet discussed. Stress is often laid upon revocability as one of the essentials of a will. This is a mistake. It is a characteristic or quality rather than an essential of a will. The thing is revocable because it is a will. "We cannot ascertain its testamentary nature by considering its revocability; but as soon as we learn that it is testamentary we know it is revocable. 3 What amounts to a revocation is a question that will be reserved for a future topic. 4 3 See ante §§ 52, 72. 4 See post §§ 319-39T. CHAPTER V. WHAT MAY BE DISPOSED OP BY WILL. § 77. Forecast. § 91. "Feudal Obstructions." What is a Devisable Estate. § 92. Effect of the Intro- § 78. General Rule. duction of Feudalism. § 79. Joint and Undivided In- terests. § 93. Effect of Estates Tail. § 80. Contingent and Execu- § 94. Effect of Uses. tory Interests. § 95. Statutes Eemoving § 81. Eight of Property with- Feudal Eestraints. out Possession. § 96. "Eights of Creditors." § 82. Naked Possession. § 97. To Personalty at § 83. Naked Legal Title. Common Law. § 84. A Mere Equity. § 98. Modern Law. § 85. A Chose in Action. § 99. "Eights of the Surviv- § 86. Chattels Real and Crops. ing Spouse and Child- § 87. After-Acquired Person- alty. ren" — To realty at Common Law. § 88. After-Acquired Eealty. §100. In Personalty at Disposition of Property Prevented Common Law. by Testator's Obligations. §101. Modern Trend in § 89. Forecast. America. § 90. General Statement. § 102. Same. § 77. Forecast. Having ascertained the nature and essentials of a will, we come next to inquire what may be disposed of by will. That nothing but property can be disposed of by will, we have seen to be true as a general rule. 1 Starting with the proposition that any property may be given by will, the most general limitation upon it would be, that a person may be unable to dispose of property by will, either, 1, because the estate in him is in- sufficient, or, 2, because obligations to other persons pre- vent. Of these in their order. 1. WHAT IS A DEVISABLE ESTATE. § 78. General Rule. The power of testamentary dis- position extends to all interests in real or personal prop- erty, corporeal or incorporeal, which, if not disposed of, 1 See ante § 68. 47 §§ 79-80 WILLS. 48 would devolve to the heirs or personal representatives of the testator. 2 The converse of this proposition is equally true, namely, that an interest that is not transmissible cannot be devised. 3 §79. Joint and Undivided Interests. Tried by this test, a devise of the interest of a joint tenant, in real or personal property, would be void; and the courts hold that it is, unless the statutes otherwise provide. A joint tenant can defeat the survivorship by a conveyance dur- ing life, which renders the remaining tenant and the new one owners in common. But the same thing cannot be done by will, for the right of the survivor becomes abso- lute the moment before the will speaks. 4 The interests of co-owners, other than joint tenants would devolve to their heirs or personal representatives, and accordingly may be devised. 5 To this class, would belong, property acquired by common effort during marriage where the statutes make such acquisitions community property. Either spouse could by will dispose of only his or her share. 6 § 80. Contingent and Executory Interests in realty or personalty which would devolve to the heirs or personal representatives may be devised or bequeathed. It is no objection that the estate had not vested when the testator died and might never vest. 8 In this respect, a distinction is taken between a possibility coupled with an interest such as a contingent remainder or an executory devise, 2 1 Bigelow's Jarman, *48 ; Jones v. 63 Am. Dec. 125 ; Moss v. Helsey Roe (1789), 3 Term 88; Roe v. Jones (1883), 60 Tex. 426, 434. (1788), 1 H. Bl. 30; Gist y. Robinet 7 Brown v. Pridgen (1882), 56 Tex. (1813), 3 Bibb (Ky.), 2. 124. 3 1 Bigelow's Jarman, *49. 8 Jones v. Roe (1789), 3 Term 88; 4 1 Bigelow's Jarman, *48 ; Coke Lit. Ba " ey Y -^SSHi \ 2 E ' *' 56 ° ! L ° rlnS 185a; Swinburne Wills, *189 ; Wilkins v \ Arnold < 1887 >' 15 R " L 428 = Cum " V. Young (1895), 144 Ind. 1, 41 N. E. jf^A, S * earnS (1894) ' 161 Mass " 68, 55 Am. St. Rep. 162; Duncan y. 5 f> fl*\* 7o8 : Wlnslow v ' Good - Forrer (1813), 6 Bin. (Pa.) 198. * in (1844) ' 48 Mass - < 7 Metc -> 363 ; «, Bi , , t .,n ci Brooks '• Ki P (1896), 54 N. J. Eq. 5 1 Bigelow's Jarman «49; Sim- 462, 35 Atl. 658 ; Jackson y. Waldron mons y. Spratt (1890), 26 Fla. 449, 8 (1834)i 13 Wend . (N . Y) 178 But South. 123. gee Doe T Tompkinson (1814), 2 M. 6 Beard y. Knox (1855), 5 Cal. 252, & Sel. 165. 49 WHAT MAY BE DISPOSED OF. §§ 81-82 and a mere possibility, 9 such as that one who has made a will containing a devise to the testator will die without revoking or altering it, and the devisee survive him, 10 or that a son will inherit property now owned by his living parent. Such a mere possibility cannot be disposed of by will. §81. Right of Property Without Possession. While there was no doubt that the heir could recover land from one who had ousted the ancestor, it was once thought in England that the same feudal considerations which for- bade a sale by the ancestor of his right to sue, made his devise void. 11 The question was put to rest there by a statute authorizing such devises; 12 and in this country there has seldom been any doubt that the devise by the disseisee passed good title to the devisee both against the heirs and the disseisor, for the feudal objections never applied under our law. 13 §82. Naked Possession, without other title, gives the possessor a devisable claim, and upon the right thus acquired, the devisee can recover the property of anyone 9 Jones v. Eoe (1789), 3 Term 88; A Reversion Expectant on the Ter- 4 Kent Com. 511. mbnation of an Estate Tail is a vested Whether a possibility of reverter estate, and is certainly devisable. Steel is a devisable estate is a mooted question, v. Cook (1840), 42 Mass. (1 Mete.) Chancellor Kent believing that the 281. right is established beyond reasonable lOPate v. Pate (1866), 10 Miss, doubt by Jones v. Roe (1789), 3 Term 750; Dixon v. Cooper (1889), 88 Tenn. 88, and Mr. Preston and others doubt- 177, 12 S. W. 445. ing. 4 Kent Com. *511 ; Deas v. Horry n Baker v. Hacking (1635), Cro. (1835), 2 Hill Ch. (S. Car.) 244, 249. Car. 387, 405; Goodright v. Forrester The interest of the grantor under a (1807),' 8 East 564, affirmed on appeal, deed conveying land subject to a. con- 1 Taunton 578, but on another ground, dition subsequent was held to be a de- Mansfield, C. J., disapproving the opin- visable estate before breach, and the ion of the court below on this point, devisee's action to recover was sus- See also Doe v. Hull (1822), 2 Dow. & tained. Austin v. Cambridgeport Par- Ry. 38. ish (1838), 38 Mass. (21 Pick.) 215. "1 Vic. (1837), C. 26 §3. Oontra: TJpington v. Corrigan (1896), is Patly v. Goolsby (1888), 51 Ark. 151 N. Y. 143, 45 N. E. 359, 37 L. R. 61, 9 S. W. 846 ; Whittemore v. Bean A. 794. Held, that the right of entry (1832),- 6 N. Hamp. 47; Jackson v. belongs to the heirs, not to the de- Varick (1827), 7 Cow. (N. Y.) 238, 2 visees. TJpington v. Corrigan (1896), Wend. 166; Humes v. McFarlane 151 N. Y. 143, 45 N. E. 359; Methodist (1818), 4 Serg. & R. (Pa.) 427, 435; Prot. Ch. v. Young (1902), 130 N. Car. Watts v. Cole (1830), 2 Leigh (Va.) 8, 40 S. E. 691 ; Trustees v. Venable 653, 664. Contra : Poor v. Robinson (1896), 159 111. 215, 42 N. E. 836. (1813), 10 Mass. 131. §§ 83-87 wills. 50 who cannot show a title superior to that of the testator. 14 § 83. A Naked Legal Title may be devised. 18 § 84. A Mere Equity, which the testator has, to have a deed executed by him set aside or decreed void, may be devised. 16 The right of a person who has contracted for the purchase of land is clearly a devisable interest in the land. 17 § 85. A Chose in Action. The testator may bequeath by general, specific, or residuary legacy, anything due him from another, or simply owing and to become due. 18 He may even bequeath money to become due and pay- able to him as insurance on his own life 19 or on the life of one who survives him. 19a When the person whose life is insured afterwards dies, the right of action in favor of the executor is complete. 20 "Whenever specific bequests are made of choses in action, the suit must be brought by or in the name of the executor, and not in the name of the legatee. 21 § 86. Chattels Real and Crops to be grown in the future during the term were treated as personal property and could always be disposed of by will. 22 §87. After-Acquired Personalty. The Eoman will was a declaration by the testator appointing the persons who should be his heirs, so that the persons named were i4Asher v. Whitlock (1865), L. R. Ch. Div. 499; Sargent v. Simpson 1 Q. B. 1. But see Smith v. Bryan (1831), 8 Green. (Me.) 148; Dodge v. (1851), 12 Ired. (N. Car.) 11. Gallatin (1891), 130 N. T. 117, 124, lsAtwood v. Weems (1878), 99 U. 29 N. B. 107. S. 183. One who had sold land and 18 Hayes v. Hayes (1889), 45 N. J. executed a deed therefor, afterwards Eq. 461, 17 Atl. 634. made a will devising the same land and 19 Fletcher v. Williams (1902), Tex. died. The devisee transferred the land Civ. App. 66 S. W. 860. for value to one who had no notice of lsaLaughlin v. Norcross (1902), 97 the testator's deed, which had never Me. 33, 53 Atl. 834. been recorded. The court correctly 20 Small v. Jose (1893), 86 Me. 120, held that the title of the purchaser 29 Atl. 976. from the devisee was perfect. Whitte- 21 Hayes v. Hayes (1889), 45 N. J. more v. Bean (1832), 6 N. Hamp. 47. Eq. 461, 17 Atl. 634; Bishop v. Cur- 16 Gresley v. Mousley (1859), 4 DeG. tls (1852), 18 Q. B. (83 E. C. L.) & J. (61 Eng. Ch.) 78, 90; Atwood v. 878. Weems (1878), 99 TJ. S. 183. 22 Swinburne Wills "185, 189, 196- 17 Broome v. Monck (1805), 10 Ves. 204. 597; Lysaght v. Edwards (1876), 2 51 WHAT MAY BE DISPOSED OF. § 88 entitled to all the property the testator owned when he died. The common law rule that wills speak from the death of the testator, not from their date, unless a differ- ent intention appears from their language, 23 is said to come by adoption from the Eoman law. At all events, it is certain that personal property acquired after the will is made, may be bequeathed by it; 24 and such has always been the rule, both as to personal chattels and chattels real. 25 §88. After- Acquired Realty. The same would have been true of realty, had it not been held in England, that a devise of realty is in the nature of a conveyance by way of appointment, concerning a specific thing, rather than declaring who should be the general heir of the testator. And upon that theory, it was held that a devise of land which the testator did not have at the time of making the will was void, though his intention thereby to devise lands to be acquired afterwards were explicitly stated. There could be no legal conveyance at common law of what a man should acquire in the future, for without pos- session livery of seizin could not be given, and without that the conveyance was void. 26 The application of this doctrine to wills was strained and technical, because no livery could be made in any devise; but the rule had be- come so well settled by Lord Mansfield's time that he felt constrained to follow it, though he said it might as well have been decided the other way in the first place. 27 This rule was accepted as part of the common law in sev- 23 See post § 429. Bragaw (1842), 4 N. J. Eq. (3 Gr.' 24 Swinburne Wills, *194 ; Harwood Ch.) 261; Meador v. Sorsby (1841), v. Goodright (1775), 1 Cowper 87, 90; 2 Ala. 712, 36 Am. Dec. 432; Beall v. Canfleld v. Bostwick (1852), 21 Conn. Schley (1844), 2 Gill (Md.), 181, 41 550 ; Warner's Exrs. v. Swearingen Am. Dec. 415. (1838), 36 Ky. (6 Dana) 195; Dal- 27 Pistol v. Ficcardson (1784), 3 rymple v. Gamble (1888), 68 Md. 523, Doug. (Eng.) 361. This rule does not 13 Atl. 156; George v. Green (1843), arise, as is sometimes supposed, from 13 N. Hamp. 521 ; Nichols v. Allen the words of the Statute of Wills, 32 (1888), 87 Tenn. 131, 9 S. W. 430. & 34 Henry 8, but was equally appllca- 25 1 Bigelow's Jarman, *59 ; Wind ble to wills devising lands devisable v. Jekyl (1719), 1 Peere Wms. 575. by special custom before the statute. 26 McKinnon v. Thompson (1818), Brunker v. Cook (1708), 11 Mod. 121, 3 Johns. Ch. (N. T.) 307; Bruen v. Fitz. 225; Harwood v. Goodright §§89-90 WILLS. 52 eral of the United States; 28 while in a few states, statutes similar in terms to the Statutes of Wills, 32 & 34 Henry VIII, have been held to enable testators to devise lands to be acquired after the will is made. 29 Now it has been pro- vided by statute, in all the other states 30 and in England, 31 that after-acquired lands may be devised; so that the only question now is one of intention of the testator, some statutes including after-acquired lands in the absence of excluding expression, others only when expressly in- cluded. 32 2. DISPOSITION OF PROPERTY PEE VENTED BY TESTATOR'S OBLIGATIONS. § 89. Forecast. In what has been said up to this point, concerning what may be disposed of by will, the attention has been directed to the nature of the testator's estate in the thing; and we have found that he may will any estate which his heirs or personal representatives would acquire through him. Under the present head, the attention is to be directed to the obligations of the testator to other per- sons which would render his will ineffective, regardless of the extent of his estate in the thing. The obligations which seem worthy of attention in this connection, are: 1, feudal obstructions, now entirely removed, but still giv- ing color to many topics of the law of wills, and as appro- priate for consideration here as anywhere; 2, obligations to creditors; 3, to the surviving spouse and offspring. Of each of these in the order named. § 90. General Statement. Disposition might be pre- vented by feudal obstructions, rights of creditors, and rights of the surviving spouse and children. (1774), 1 Cowp. 87. See especially (Pa.), 323, 26 Am. Dee. 145; Watson the review of the decisions by Gibson, v. Child (1856), 9 Rich. Eq. (S. Car.) C. J., in Girard v. Philadelphia (1833), 129. 4 Bawle (Pa.), 323, 335, 26 Am. Dec. 28 See post § 526. 145. 30 See post § 526, where the statutes 28Canfleld v. Bostwick (1852), 21 of all the states on this subject are Conn. 550; Hays v. Jackson (1809), cited and reviewed. 6 Mass. 149, Mechem 150 ; George v. 31 1 Vic. C. 26 § 3. Green (1843), 13 N. Hamp. 521; Gl- 32 See post §§ 526-529. rard v. Philadelphia (1833), 4 Bawle 53 WHAT MAT BE DISPOSED OF. §§ 91.93 § 91. "Feudal Obstructions. ' '—Situation When Feud- alism Began. History discloses no trace of any time when personal property could not be disposed of by will; and the free disposition of it was not materially inter- fered with by the feudal system at any time except by the right of lord to his heriot, the deceased's best chattel. It seems sufficiently clear also, that lands were devisable by will in England till the Norman conquest, A. D. 1066. 33 § 92. Effect of the Introduction of Feudalism. Upon the establishment of feudal tenures, which became gen- eral soon after the conquest, restraints upon devising freeholds naturally arose, as a branch of the feudal doc- trine of non-alienation without the consent of the superior lord. SSa Such a disposition would have defeated the most valuable rights of the lord— escheats, reliefs, wardships, and marriages. 34 But in a great many buroughs and in gavelkind lands, notably in Kent and London, local cus- toms were sufficiently strong to preserve the ancient liberty of disposing of lands by will; and cases relating to "burgages devisable" are common in the year-books. 35 Terms less than a freehold were regarded of little account, and transmission of them by will was never interfered with by the feudal system. § 93. Effect of Estates Tail. Devises of lands were further hampered by conveyances made under the protec- tion of the statute de Donis Conditionalibus ; which was the first chapter of the Statute of Westminster 2d, enacted in the year A. D. 1285, 13 Edward I, c. 1; which provided that when lands were conveyed to one and the heirs of his body, the first taker should not have power to dispose of the lands in any manner, but that they should remain to his issue according to the wish of the giver, and revert to the giver or his heirs if the donee died without heirs S3 Digby Hist. Real Prop. 375; 2 Bl. Com. 34 As to power of feoffor by express 373, 491; 2 Pollock & Maitland Hist. Ed g. L. charter to enable feoffee to devise, see 2 Pol- 312-353. Acase of an oral deviseinthe reign lock & Mait. Hist. E. L. 26, and Maitland's of Edward Confessor is reported in Bige- introduction (§5. p. 36) to Bracton's Note low's Placita Anglo Normanica p. 39. Book. In 1292 a devise without mention of 33a Martyn de Hereford's Case (1292), special custom is discussed. Pike's Year Pike's Year Book, 20 Edw. I. pp. 263, 266, Book, 20 and 21 Edw. I. p. 104. finding a custom permitting devises of pur- 35 See the books above cited; also chases. So of a casein York, Anon., Year Sharpe's Calendar of Wills of London Book, 30 and 31 Edw. III. p. 460. Court of Husting. §§ 94-95 WILLS. 54 living. 36 The lords would not consent to the repeal of the statute, and no escape from its operation was invented till some two hundred years later,- when Edward IV suf- fered Taltarum's Case 37 to be brought as a test case, wherein it was first held that a common recovery barred the entail. 38 § 94. Effect of Uses. During this period, a means of escaping the feudal restraints was discovered, in the practice of conveying lands to uses, which the grantor would nominate by his will, the first recorded case yet discovered being in the year A. D. 1383, 6 Richard LT. 39 The law courts held that the title of the feoffee was abso- lute, and that the declaration of uses amounted to noth- ing; so that those in whose favor the uses were declared were without remedy beyond the good faith of the feoffee. But the chancellor soon assumed jurisdiction to compel the feoffee to obey the declaration as to the use, as an obligation binding on his conscience. From this time the practice, of conveying lands to uses to be named by the will of the feoffor, grew constantly, and to such ex- tent, that, when the Statute of Uses was enacted, A. D. 1535, 27 Henry VTII, 40 such devises were the rule and intestacy as to lands was exceptional. The avowed pur- pose of the statute, as appears by its preamble, was to put a stop to such devises; and it had that effect except in those buroughs where the right of devising legal titles in freehold was still maintained by local custom. §95. Statutes Removing Feudal Restraints. But the protest against the Statute of Uses was too strong to be resisted; and accordingly five years later, A. D. 1540, 32 Henry VIII c. I, 41 a statute was passed, afterwards known as the first statute of wills; by which this "mer- 36 See the statute in the original in Ch. 3, Digfcy Hist. Eeal Prop. 326, language with translation in Digby 379. Hist. Eeal Prop. 224-228. 40 This statute will be found in 37 Tear-book, 12 Bdw. IV, 14, 19; Digby Hist. Eeal Prop. 347. Digby Hist. Eeal Prop. 253. 41 Statute may be seen in Digby 38 See 2 Bl. Com. 116. Hist. Eeal Prop. 387. 39 Eothanbale v. Wychlngham, 2 Cal. 55 WHAT MAY BE DISPOSED OP. §§ 95.97 ciful, loving, benevolent, and most gracious sovereign," or such the statute declared him to be, by authority of his parliament, permitted free disposal, by will, of all lands, tenements, and hereditaments, held in free socage tenure, and two thirds of all lands held in knight service tenure; which statute was declared by a statute enacted two years later, A. D. 1542-3, 34 & 35 Henry VIII, c. 5, §3, to extend only to estates in fee simple. A hundred and twenty years later, all lands became devisable, by virtue of a statute reducing all tenures to free and com- mon socage: 12 Car. II c. 24, A. D. 1660. In the year A. D. 1677, estates pur auter vie in lands became devisable by virtue of the Statute of Frauds, 29 Car. II. c. 3, § 12. 42 Such was the course of feudal restraints upon disposing of property by will; which found lands freely devisable, and left them equally so. § 96. "Rights of Creditors"— To Real Estate at Com- mon Law. Lands were bound at common law, in the hands of the heir, for the payment of the ancestor's debts to the crown, and for such other debts of his as were evi- denced by deeds expressly binding the heir. 43 But if devised, the devisee took them free from all claims of private creditors, till a statute was passed in the year A. D. 1692, 3 & 4 William and Mary c. 14, providing that all wills, dispositions, and appointments by will, of real estates, shall (as to specialty creditors only) be deemed fraudulent and void, and enabling such creditors to sue the heirs and devisees jointly. And it was not till A. ,D. 1807 that any remedy was provided for other creditors, either against heirs, devisees, or the land in their hands. 44 §97. To Personalty at Common Law. Executors seem to have been liable at common law, to the extent of the property received by them, to all creditors of the de- ceased; but the ordinary, who was entitled to dispose of 42 Amended by 1 Vie. c. 26 § 3. 44 Digby Hist. Real Prop. 283 ; 47 43 Glanville 7 lib. 8 ; Digby Hist. Real Geo. Ill, c. 74, amended by 32 & 34 Prop. 283 ; 2 Bl. Com. 378 ; Harbert's Vic. c. 46. Case (1584), 3 Coke lib, Rood on At- tach. &c. 137. §§ 98-99 WILLS. 56 the personal estate of intestates, has been thought not to have been similarly liable; 45 and these suppositions are based on the Statute of Westminster 2d c. 19, 13 Edward I, A. D. 1285; which— after reciting that the goods of intestates, beyond the reasonable parts of the widow and children, had been appropriated by the ordinary with- out paying the lawful debts of the intestate— enacted that the ordinary should be bound to pay the debts as far as the goods would extend, in the same manner as executors under wills had been liable. But on the other hand, it has been thought that this statute was only declaratory of the common law, as it had before existed, and to remove doubt as to the method of proceeding. 46 § 98. Modern Law. The extent to which these stat- utes are binding in any state depends on the decisions and statutes declaring to what extent the English statutes are a part of the common law of the state; 47 and also on the statutes of the state touching the exact points cov- ered by the old English statutes. These matters are gen- erally controlled by statutes in each state making all de- vises and bequests subject to the debts of the deceased, and thus far limiting the power of testamentary disposi- tion. The order in which claims are to be paid, and in which legacies and devises must a"bate to afford funds to satisfy them, are matters more appropriate for considera- tion in another place. 48 § 99. "Rights of the Surviving Spouse and Children" —To Realty at Common Law. When a member of a family dies intestate, the law usually gives his property to some or all of the survivors, and the present question is as to the extent of his power to divert the succession. Neither spouse can nor ever could, by devise or other- wise, defeat the estate of the other in dower or curtesy. 49 45 2 Bl. Com. 495. (1898), 67 Mo. 654; Ticknor v. Harris 46 1 Williams on Exrs. *402 ; Snell- (1843), 14 N. Hamp. 283, 40 Am. Dec. Ing's Case (1595), 5 Coke 82b; Hens- 186. loe's Case (1600), 9 Coke 39b. 48 See post §§ 741-747. 4T People v. Brooks (1887), 123 HI. 49 Maine's Ancient Law 217, 218; 246, 14 N. B. 39 ; Sauer v. Griffin 4 Kent. Com. 50 ; Woerner Administra- 57 WHAT MAY BE DISPOSED OF. § 100 Pure feuds being originally inalienable, the inheritance of the heir was equally secure; and after alienation was by degrees allowed, only certain parts of the inheritance could be diverted at first; but these barriers were gradu- ally broken down till they were destroyed entirely. 50 § 100. In Personalty at Common Law. Writing in the reign of Henry HE, about the years A. D. 1256-7, Brac- ton stated the common law of his day to be, that the funer- al expenses, support of the widow during quarantine till dower assigned, and the other debts of the deceased, were first to be paid out of the personal estate; and what re- mained after these were paid was to be divided: into three equal parts if he left a widow and children, one part for the widow, one for the children, and one according to the will of the deceased; into two parts if he left sur- viving only a widow or only children, one part for the widow or children, and one according to his will; and if he left neither widow nor children nor debts, the whole was at his disposal. 61 The third Magna Charta of Henry m, c. 18, granted in the year A. D. 1224, agrees with this statement of Bracton, as do also Fleta, Fitzherbert, Finch, and the Year Books; 52 and Glanville, Chief Justi- cary under Henry II, writing about the years A. D. 1185-8, similarly states the law of his time. 53 By Lord Coke's time the law had changed so much, and by such imperceptible degrees, that he fell into the error of sup- posing the right of the widow and children to any part of the personal estate against the will of the testator had never existed except by local custom; 54 and these local remnants were finally swept away by various statutes, so that testators in any part of England became enabled to tion §113; Lilly v. Menke (1897), 143 to sell or devise his land free from his Mo. 137, 44 S. W. 730. In Glanville's wife's dower and without her consent, time the husband could sell his wife's bo 2 Bl. Com. 287-290; Glanville lib. dower without her consent, and she 7 c. 1. could not recover it after his death bi Bracton lib. 2 c. 26 § 2. unless he left no other land from 62 Cited In 2 Bl. Com. 493. which she could be endowed. Glanville us Glanville lib. 7 c. 1. lib. 7 cc. 3, 12. The statute 4 & 5 64 Coke's 2d Institutes 33. William IV c. 105 enables the husband § 101 WILLS. 58 will all their personal property away from their widows and children. 65 But the right of the widow to her para- phernalia never could be cut off by her husband's will, either before or after these statutes. 58 We do not read of the husband being entitled to any of the personal estate left by the death of his wife, because the old law gave him all her personal property absolutely on their wedding day or whenever it was afterward acquired. §101. Modern Trend in America. In recent years the legislative pendulum has been swinging the other way; and there is good reason for it. 56a The real and personal estates of married women have been secured to them, with power to buy, sell, will, and manage them, as free from the control of their husbands as if unmarried. The proportion of the estate which de- volves to the surviving spouse in case of intestacy has been increased. The right of the surviving spouse to re- tain the old homestead, in spite of the will of the other devising it away, has been very generally secured ; some- times in lieu of the common law estates in dower and curtesy, sometimes in addition to them. 57 In remember- ing the spouses, the children have not been forgotten; the homestead has been secured them also. 58 The right 55 2 Bl. Com. 493. tions makes a better disposition of Still the law in Utah. Little's Es- property than the testator. The mak- tate (1900), 22 Utah, 204, 61 Pac. 899. ing of unnatural wills, for old and su- 66 2 BI. Com. 436, Beeves Dom. Eel. perannuated people, has got to be just •37 ; Rogers Dom. Bel. § 179. as much of a trade as selling subjects sea It is doubtful if more wills are to the dissecting surgeons in cities ; not dictated by pique or induced by and is becoming, we regret to say, the the machinations of schemers, than are fruitful source of the bitterest family the result of good sense applied to the feuds among our people." Horton v. particular case. Certainly it does not Johnson (1855), 18 Ga. 396, 398. often occur that a disposition by will 67 Bell v. Bell (1887), 84 Ala. 64, 4 is more Impartial than the intestate South. 189; Scull v. Beatty (1891), 27 laws now prevailing, or tends so much Fla. 426, 9 South. 4 ; Vining v. Willis to break up collected masses of prop- (1889), 40 Kan. 609, 20 Pac. 232; eity into small parcels, to counteract Pratt v. Pratt (1894), 161 Mass. 276, the congestion naturally produced by 37 N. B. 435; Radl v. Radl (1898), 72 commerce. Minn. 81, 75 N. W. Ill ; Rockhey v. In an old case the court said: "We Bockhey (1889), 97 Mo. 76, 11 S. W. affirm the judgment of the court below, 225. See also : Homestead §§ 245-306, and we do not regret it. In nine cases Century Digest, vol. 25. out of ten — perhaps in ninety-nine out 58 Same; McGee v. McGee (1879), of a hundred — the statute of distribu- 91 111. 548. 59 WHAT MAY BE DISPOSED OF. § 102 of the widow at the old common law to her "reasonable part" of the personal estate, contrary to the will of the testator, has been restored in a number of states, with the proportion increased; and similar provisions have been made for the husband. 59 The power of parents to disin- herit their children has also been restricted in some states to the extent of limiting the proportion of the estate which can be willed to charitable purposes, and in Louisi- ana parents and children can wholly disinherit each other only when the disinherited has committed against the testator some one of ten named wrongs. 60 §102. Same. Except as curtailed by these provi- sions for the family and creditors, and by the inheritance and bequest tax laws now to be found in a number of states, the power to dispose by will is unrestricted. The testator may select such of his children or other relatives as he pleases as his beneficiaries; or he may pass them all by, and leave his whole fortune to strangers. 61 There is a notion in the minds of many people that a man must mention all of his- children or relatives in his will or it will be void. This is not the law; and is due, no doubt, to the presumption, usually indulged, that the omission was unintentional, and to the common statutory provi- 59 In several states the widow may Hampshire it is one third for either elect to take under the will, if pro- husband or wife if they have children, vision is made for her in it; or may otherwise a half. Pub. Stat. (1901) have the same part of the personal c. 197 §§10-14; Hayes v. Seavey estate as would have devolved to her (1898), 69 N. Hamp. 308, 46 Atl. 189. if the husband had died intestate. Ala- So in Missouri : Rev. Stat. (1899) bama Code (1896) §4259; Hubbard v. §§2937-2941; Lilly v. Menke (1897), Russell (1883), 73 Ala. 578; Mich. 143 Mo. 137, 44 S. W. 730. In Wy- Comp. Laws (1897), §9300; Andrews oming it is provided that the testator Estate (1892), 92 Mich. 449; Mis- may not by will dispose of what would sissippi Code (1892), §§ 4496, 4497; be set apart for the family, which in- Kelly v. Aired (1888), 65 Miss. 495, eludes all that would be exempt from 4 South. 551. In Kansas neither the execution. Wy. Rev. St. (1899) §§4565, husband' nor wife can will away from 4736. the other more than half of his or her 60 Louisiana Civil Code (1900), Arts, property. Kan. Gen. Stat. (1901) 1621, 1622, 1493, 1494. §7972; Vining v. Willis (1889), 40 ei Taylor v. Cox (1894), 153 III. Kan. 609, 20 Pac. 232. Held to mean 220, 228, 38 N. E. 656; Goldthorp's the whole of specific property to half Estate (1902), 115 Iowa, 430, 88 N. of the estate. Neuber v. Shoel (1898), W. 944 ; In re Rausch (1886), 35 Minn. 8 Kan. App. 345, 55 Pac. 350. In New 291, 28 N. W. 920. § 102 WILLS. 60 sion that posthumous children 62 shall take as if no will had been made, and that all children not provided for shall take in the same manner unless the omission appears to have been intentional. 62 As to right of pertermltted children Bee post §§ 161-164, 382-387, and note 7 Fro. R. A. 504. CHAPTER VI. WHO MAY MAKE A WILL. § 103. General Statement. 1. "Any Person." § 104. Corporations. § 105. The Three Limitations Compared. 2. "Of Full Age." § 106. Roman and English Law. § 107. American Law. 3. "Of Sound Mind." § 108. Forms of Unsoundness. A. Deficiency of Power. § 109. Idiocy. i 110. Dementia. § 111. The Test of Strength Required. § 112. Business Capacity Com- pared. § 113. The Nature of the Will. § 114. Deaf, Dumb, and Blind Persons. B. Deranged Mental Action. § 115. Scope of this Topic. § 116. The Point of View. S 117. Manifestations of Men- tal Derangement. § 118. Accounting for Conduct. § 119. The True Standard for Comparison. § 120. Eccentrics. § 121. Monstrous Likes and Dislikes. 5 122. Hatred for Off-Spring. § 123. Unjust Wills. § 124. Conduct Strange or Nat- ural. § 125. Preposterous Beliefs as a Test of Insanity. §126. Application of This Test — Danger of Error. 1 127. Belief in Witchcraft. §128. Belief In Christian Sci- ence. § 129. Belief in Spiritualism. § 130. Conclusions from above. § 131. Effect of Error. § 132. Distinction between Er- ror and Insane Delu- sion. §133. Effect of Mental De- rangement on Testa- mentary Capacity. § 134. Lucid Intervals. § 135. What Insane Delusions Destroy Testamentary Capacity. § 136. Delusions Concerning the Beneficiaries. § 137. Delusions Concerning Anyone Prejudiced. "Under Constraint." § 138. Kinds of Constraint. § 139. Aliens — As to Person- alty. § 140. As to Land. § 141. Traitors and Felons at Common Law. § 142. S t a t u t e s and Constitutional Provi- sions. Effect of Above. Married Women — As to Personalty at Common Law. As to Real Prop- erty at Common Law. -Effect of Early §143. §144. §145. §146. 8147. §148. §149. §150. §151. Statutes of Wills. Wills Always Ef- fectual without Con- sent. Effect of Surviv- ing Her Husband. Whether .to be Al- lowed Probate. In Equity. Under the Mod- ern Statutes. §103. General Statement. Any person of full age, sound mind, and not under constraint, may make a will. 61 §§ 104-106 WILLS. 62 1. "ANT PEKSON." § 104. Corporations. The word person, as here used, means only natural persons of course. Only creditors attend the obsequies of corporations; they never leave orphans nor widows to mourn at their funerals, and the orphan courts have no jurisdiction to administer their estates. §105. The Three Limitations Compared. That any person may make a will, would seem, from the rule stated above, to be a statement subject to three limitations— age, mind, and volition. But it does not require very careful examination to discover that all stand on one founda- tion. Voluntary action is of course an essential part of the legal conception of a will; but that is not all. That action must be controlled by reason. An idiot has voli- tion; he can move himself and make noises at will; but he lacks reason. When a retraction, of the assertion that the world is round, was extorted from Galileo on the rack, he possessed reason but was under constraint. Conceiving of a will therefore as voluntary action in re- sponse to reason, it will be seen at once that all these limitations are essential to it. A child has volition at birth; but acquires little discretion for years, some get- ting it sooner than others, some having more than others. The law arbitrarily fixes an age before which the infant shall be conclusively deemed not to have enough discre- tion to make a will. A person above that age may have no sense, or not enough to make a will understandingly. The objection is the same as in the case of the infant, lack of reason, whether it was lacking from birth or has been lost since. The limitations upon testamentary ca- pacity, all based, as I have attempted to show, on want of reason or obstructions to the expression of it, will now be considered in the order named in stating the rule. 2. "OF FULL AGE." §106. Roman and English Law. The rule of the civil law, adopted by the ecclesiastical courts in England, 63 WHO MAY MAKE A WILL. § 107 was, that males of fourteen and females of twelve might make wills without the consent of their guardians, and could not at any earlier age, even with their guardians' consent. 1 The age required to make a valid devise, of lands devisable by virtue of statute, was raised to twenty- one, for both sexes, by the statute 34 and 35 Henry VIII, c. 5 § 14, A. D. 1542-3 ; and for wills of personalty as well, for both sexes, by the Statute of Wills, 1 Vic. c. 26 § 7, A.D. 1837 ; and such is the law in England today. § 107. American Law. In Georgia the age limit is the lowest of any I have noticed in the statutory pro- visions ; where it is enacted that, ' ' infants under fourteen years of age are considered wanting in that discretion necessary to make a will." 2 This statute is held to en- able all persons of fourteen to dispose of realty or per- sonalty by will. 3 In nearly a quarter of the states, both males and females may dispose of all their realty and personalty, by will, at the age of eighteen years, as noted below. 4 The privilege of disposing of both realty and per- sonalty at eighteen is accorded only to females in Illinois, Maryland, and Missouri; 5 only to unmarried females in Colorado and the District of Columbia; 6 and, for the sake of variety, only to married females in Wisconsin. 7 In several other states, while no one can dispose of realty by will till twenty-one years of age, either sex may dis- pose of any personalty, by will, at eighteen, as noted 1 Swinburne Wills *75 ; Shep. Touch. Oklahoma — Statutes (1893) § 6165. 403 ; 2 Bl. Com. 497 ; 4 Kent Com. South Dakota— Annotated Statutes 506; Arnold v. Barle (1758), 2 Lee (6 (1901) §4494. Eng. Ecc.) 529. Utah — Revised Statutes (1898) 2 Georgia Code (1895), §3265. §2731. 3 O'Byrne v. Feeley (1878), 61 Ga. a Illinois — Hurd's Statutes (1901) 77. Ch. 148 § 1. 4 California — Civil Code (1901) Maryland — Public General Statutes § 1270. (1888) Art. 93, § 309. Connecticut — General Statutes Missouri — Revised Statutes (1899) (1888) §537. §§ 4602, 4603. Hawaii — Civil Laws (1897) §2122. 8 Colorado— M i 1 1 s ' « Ann. Stat. Idaho— Rev. Stat. (1887) § 5725. (1891) § 4652. Montana — Civil Code (1895) §1720. District of Columbia— Compiled Nevada— Compiled Laws (1900) Statutes (1887-9) Ch. 70 § 3. § 307i ' 7 Wisconsin — San. & B. Statutes North Dakota— Civil Code (1899) < 1898 ) §S 2 277, 2281. § 3639. § 108 WILLS. 64 below. 8 In New York the law is the same, except that females of sixteen may make wills of personalty. 9 The statutes in South Carolina deny all persons power to devise lands till twenty-one years old, and this is held not to prevent persons making wills bequeathing person- alty at the age at which they would be competent at common law. 10 In the remaining half of the states and territories, and in all other cases in those above named, I believe the testator is required to be at least twenty- one years of age. A will executed by one under age does not become good by his living till he is over age. 11 But if one competent to make a will executed a codicil affirm- ing a will made when he was incompetent, or republishes the old will with all the formalities required to make a will, it becomes a good will from the date of the codicil or republication. 11 * 3. "OF SOUND MIND. ' ' § 108. Forms of Unsoundness. All manifestations of mental unsoundness, whether temporary or permanent, are of two general classes: 1, deficiency of power, mere mental weakness, lack of vigor, imbecility; 2, deranged, erratic, distorted, or delirious action. These defects in the understanding may be compared with defects in vision. Deficient power of understanding would corre- spond with imperfect vision caused by lack of light, being greater or less according to the intensity of the darkness. Defective understanding from derangement would cor- respond with the defective vision of one looking through 8 Alabama — Code (1896) § 4247; Al- by act No. 723, approved March 8th, len v. Watts, 98 Ala. 384. 1900. Arkansas — Digest of Statutes (1894) West Virginia — Code (1899) Ch. 77 § 7391. ; 2. Indian Territory — Statutes (1899) »Wew Tor* — Revised Statutes § 3563. (1896) vol. 2 pp. 1874, 1876, §§ 1, 21 ; Missouri — Rev. Stat. (1899) S 4602, Zimmerman v. Schoenfeldt (1875), 3 4603 (allowing females of eighteen to Hun 692. devise realty also). 10 South Carolina — Revised Statutes Oregon — Hill's Ann. Laws (1892) (1893) 5 1987; Posey v. Posey (1848), §$3066, 3067. 3 Strobh. L. 167. Rhode Island — General Laws (1896) n Swinburne Wills *74. Ch. 203 5 5. liaSee post § 397. Virginia — Code S 2513, as amended 65 "WHO MAY MAKE A WILL. §§ 109-110 prisms or defective glass. Though the light were suf- ficiently powerful, he would not be able to see things as they are, but rather in distorted forms. Temporary loss of mental power or of consciousness may be induced by drugs, disease, physical or nervous shock, and many other causes. The lack of power, and not the cause, is the important fact in considering testamentary capacity. Permanent deficiency of mental powers is either idiocy or dementia. A. Deficiency op Power.* § 109. Idiocy exists where a person is wanting in ordi- nary intelligence, and has been so from birth. Medical men have sometimes classed idiots into three orders: 1, mere masses of flesh and bone without power of percep- tion or locomotion; 2, fools, who can go where they please and have faint sparks of sense; and, 3, simpletons, who have sense enough to serve their common wants, but not enough to do business. These are differences of degree rather than of kind, not marked by sharp divisions, nor of much use to lawyers. The idiot is recognized with tolerable ease; and is indicated, says Swinburne, by be- ing so witless "that he cannot number twenty, nor can tell what age he is of, nor knoweth who is his father or mother, nor is able to answer any such easy question; whereby it may plainly appear, that he hath not reason to discern what is to his profit or damage, though it be notorious, nor is apt to be informed or instructed by any other." 12 Simpletons sometimes speak such wisdom as to astonish men of good sense ; but testamentary capacity depends upon the understanding, not upon accidents. § 110. Dementia exists where a mind once sound has become weakened or decayed. Weakness of mind in consequence of old age is termed senile dementia. Like idiocy, dementia presents a question difficult to deter- mine, not because the type is hard to recognize, but be- 12 Swinburne Wills 79 ; see also 'Notes 1 L. K. A. 165, 6 Fro. E. A. Townsend v. Bogart (1881), 5 Eedf. 382. Sur. (N. Y.) 93, Chaplin 34. § in WILLS. 66 cause it is hard in close cases to determine on which side of the line the case lies. In dementia we find a new difficulty in the ever increasing weakness. The loss is usually a gradual process, sense fading from the mind like the twilight of evening, till all is dark. §111. The Test of Strength Required.* The same degree of mental power is required in the case of one whose mind has become impaired as in the case of one of weak mind from birth. What constitutes a sound mind cannot be determined by any inflexible rule. In- telligence ranges through all degrees, the highest of which is not required, nor will the lowest suffice. Yet the intelligence of an average man is not necessary. One almost a simpleton or nearly collapsed may make a will. It may be said in general terms, that the will should be sustained if the court or jury is satisfied, that, at the time it was executed, the deceased possessed sufficient reason to understand, and did understand, the meaning and general effect of the business in which he was en- gaged, and that he had a memory sufficiently strong and active to collect the elements of the business in his mind, without prompting, and hold them there long enough to perceive their ipore obvious relations to each other, and form some rational judgment in relation to them, so as to comprehend the scope and effect of the dispositions he was making. The elements to be thus remembered and passed upon are: 1, the persons who would naturally be the objects of his bounty; 2, their deseits, with refer- ence to conduct and capacity, as well as need, and what he has before done for them, relatively to each other; and, 3, the amount and condition of his property. The essential matter is power to remember; failure in fact to remember all these elements does not make the will void. Forgetting a child, for example, does not avoid the will. The child takes as if there were no will. According as this test is satisfied or not, wills are held valid or void, which were executed by persons whom age or disease •Notes 1 L. R. A. 161, 5 Pro. R. A. 382. 67 WHO MAY MAKE A WILL. §§ 112-114 has rendered feeble and forgetful, 13 who were on their death beds and rapidly sinking, 14 who were habitual drunkards, and much impaired in strength and somewhat besotted by intoxicants when the will was made, 15 weak- ened by disease and suffering great pain, 18 or who never had much sense. 17 § 112. Business Capacity Compared. More capacity is required to do business and make contracts than to plan and execute a will when there is no opposing mind to meet. 18 But this observation has no application to instruments executed by one beset by an army of harpies, in the shape of hungry expectants, altogether more em- barrassing than the opposition usually presented by the other party to a contract. 19 § 113. The Nature of the Will is an element to be con- sidered in this connection. The question is not whether the deceased had capacity to make a will, but whether he had capacity to make the particular will. Less ca- pacity is needed to execute a will disposing of a small estate in two or three bequests, than to plan or compre- hend a will of numerous complex provisions disposing of a larger estate. § 114. Deaf, Dumb, and Blind Persons. It has been 13 Stevens v. Van Cleve (1822), 4 1056; Wood v. Lane (1897), 102 Oa. Wash. C. C. 262, Fed. Cas. No. 13,412, 199, 29 S. B. 180. Abbott p. 235; Converse v. Converse 15 Bannister v. Jackson (1889), 45 (1849), 21 Vt. 168, Chaplin 25, Red- N. J. Eq. 702, 17 Atl. 692, Mechem 19; field Cases 171; Waddington v. Buzby Peck v. Cary (1863), 27 N. Y. 9 ; Tru- (1888), 45 N. J. Eq. 173, 16 Atl. 690, itt v. Cullen (1901), Del. 50 Atl. 174, Mechem 11 ; Collins v. Townley (1871), and see note, 39 L. E. A. 220; same 21 N. J. Eq. 353, Chaplin 29; Pooler 263; 6 Pro. E. A. 200. v. Christman (1893), 145 111. 405, 34 16 McMaster v. Scriven (1893), 85 N. E. 57. Courts are liberal in bus- Wis. 162, 39 Am. St. 828, 55 N. W. taining wills of old persons, because 149. the power to reward by will frequently 17 Townsend v. Bogart (1881), 5 commands respect when other motives Redf. Sur. (N. Y.) 93, Chaplin 34 ; have ceased to influence. Van Alst v. Howell v. Taylor (1892), 50 N. J. Eq. Hunter (1821), 5 Johns. Ch. 148, Ab- 428, 26 Atl. 566; Bannatyne v. Banna- bott 240; see note 6 L. E. A. 167. tyne (1852), 2 Eob. Ecc. 472, 14 Eng. nHathorn v. King (1811), 8 Mass. L. & Eq. 581, 590, 16 Jur. 864. 371, Chaplin 29; Jackson v. Jackson 18 Ring v. Lawless (1901), 190 III. (1868), 39 N. V. 153; Bevelot v. Les- 520, 60 N. E. 881. trode (1894), 153 111. 625, 38 N. E. 19 Converse v. Converse (1849), 21 Vt. 168, Chaplin 25, Redfleld Cas. 171. § 115 WILLS. 68 said that persons who have never been able to hear, see, or speak, should be classed with imbeciles and held in- competent to make a will, becanse they have always wanted the common inlets of understanding. 20 But this statement must be understood in connection with the rea- son given for it. In so far as stress is laid on the exist- ence of the defect from birth, as raising a presumption of mental weakness, the notion was exploded long ago. 21 In so far as the rule may be said to be based on the inability of the testator to make his wishes known, ascer- tain that the will prepared truly expresses them, and prove to the witnesses and scrivener that he understands and approves, the rule would have no application to any case in which he does succeed by any means in acquiring and imparting such information. 22 B. Deranged Mental Action.* § 115. Scope of This Topic. In what has been said up to the present point, concerning soundness of mind, the attention has been directed to deficiency of power in the mental faculties — perception, memory, reason — as incapacitating the person to make a will. This lack of power may and often does exist in a deranged mind. But it may also exist in a mind that is not deranged* Indeed, it is a common saying that fools never become insane. In the present topic, I desire to direct attention to derangement of mental action, as an obstacle to testa- mentary capacity, admitting for this purpose that the person's mental faculties were sufficiently powerful. A person who has vigorous mental powers, and ability to transact most business, may, by reason of an insane de- lusion, be incompetent to make a will. 23 20 1 Blgelow's Jarman *35 ; Coke Lit. *See extended notes on "Insane De- 42b. lusions," 63 Am. St. Rep. 80-108, 37 21 See 2 Cooley's Bl. Com. (3d ed.) L. R. A. 261-283 ; 5 Pro. R. A. 224- •497. 228. 22 As to the proof required to <>us- 23 Schneider v. Manning (1887), 121 tain wills executed by such persons see 111. 376, 384, 12 N. E. 267 ; Segur's Will post § (1899), 71 Vt. 224, 44 Atl. 342. 69 WHO MAY MAKE A WILL. §§ 116-117 § 116. The Point of View. If a physician were ex- amining a case of mental derangement, it would usually be for the purpose of ascertaining the cause of the trouble; since his purpose is to improve the patient's condition, and effect a cure if the malady be curable. Approaching the matter from this point of view, physi- cians have classified the infirmities of mind by their . causes : 1, local, as fracture or pressure of the skull, pres- ence of foreign matter in the cranial cavity, rupture of the cerebral tissues, or a morbid condition of the brain; 2, systemic, as by drugs taken into the stomach or in- jected into the circulation, the bite of a reptile or mad- dog, or some disease of the body. On an inquisition for insanity, the investigation of the court might take a direction somewhat similar. But this classification is of little service when the question is on the probate of a will; since the point of importance in such cases is the extent and effect of the derangement, not its cause. Our purposes will therefore be satisfied by discovering the forms in which the derangement may be manifested. § 117. Manifestations of Mental Derangement. Whether temporary or permanent, whether induced by drugs, disease of the brain, disease in some other part of the body, or other cause, whether affecting every thought or only extending to certain subjects, deranged action of the mind is discovered by observing the likes and dislikes, conduct, and beliefs of the person. These may disclose such marked evidences of derangement that the most unskilled observer could not mistake them; or they may only serve to perplex the most experienced. Yet the case must be decided, and we must not be sur- prised to find some discord in the decisions. There is no infallible test by which every case can be decided. The greater the degree of extravagance observed in the likes and dislikes, conduct, and beliefs of the person, the stronger is their tendency to produce a conviction that the person is not in his right mind; till finally an extreme may be reached, as to any one of these or as to all three §§ 118-120 WILLS. 70 combined, which we cannot account for on any other hypothesis than that the person was not in possession of his senses. § 118. Accounting for Conduct. So on the other hand, What might ordinarily seem otherwise inexplicable, may be fully accounted for by the other facts of the particular case. In so far as a monstrous belief, desire, or act is accounted for by the temperament and past life of the person, or by some other cause, its force as proof of insanity is destroyed. 233, §119. The True Standard for Comparison. The thought, desire, or act which is claimed to show insanity must not be tried by any ideal of propriety, but by com- parison with the character of the same person when he was sane, and in view of any circumstances of the par- ticular time which might have induced the peculiar act, belief, or desire. It is the prolonged departure, without adequate external cause, from the state of feeling and modes of thinking usual to the individual when in health, that is the true feature of a disordered mind. 23b Has he who was refined, mild, kind, and affectionate, become vulgar, scurrilous, abusive, and hateful, or was he always so? Has anything occurred which could produce such a change in a sane person? Insanity produces sudden changes in the whole nature without any external cause. § 120. Eccentrics— The consciousness of the person also usually serves to distinguish the sane from the in- sane. The eccentric realizes that he is odd, and often glories in it. He can understand how others differ from him. The insane person does not usually realize that he is peculiar. He is surprised that any other person should feel or see otherwise, and becomes impatient or angry when contradicted. But sometimes insane per- sons are shrewd enough to discover their malady, and to conceal it, even from the skilled physician. 24 23a See post § 122. 24 Ray's Med. Juris. §§ 114, 115, 23b See post § 122. 369 ; Ewell's Med. Juris. 333-336. 71 WHO MAY MAKE A WILL. § 121 §121. Monstrous Likes and Dislikes. A sane man may delight in what is distasteful or revolting to most men or to all other persons. Or on the other hand, he may despise or abhor what all others love and reverence. These peculiarities may be accounted for by his peculiar habits, temperament, experiences, and education. They may be shown to be of slow and long growth. They may be explained by other causes. But unless explained, the inference of insanity from them becomes stronger in the same degree to which they appear unnatural. 25 But in- capacity must not be presumed from every peculiarity. Depravity does not incapacitate. A moral leper may make a will. 26 A will cannot be denied probate for in- sanity of the testator, shown only by his living in a dirty little room behind his apothecary shop, wearing ill-fitting unfastened clothing, allowing his face and hands to remain dirty, eating with his fingers, and laughing at his own vulgar and often repeated jokes. 27 Insanity was held not to be shown by a fiendish delight often exhibited by the testator in tantalizing the poor with insincere offers of assistance; such as by offering to let them ride with him to market, and when they accepted driving with them at a furious rate in the wrong direction, and setting them down many miles farther from their destination than when they started. 28 In one remarkable case the testator directed that part of his bowels should be made into fiddle-strings, the remainder sublimed into smelling salts, and the rest of his body vitrified into lenses; which he explained by saying that these would be likely to seem whimsical provisions, but were made because "he had a mortal aversion to funeral pomp, and preferred that his body should be converted to useful purposes. The heir, who was disinherited in favor of a stranger, con- tended that these strange feelings proved insanity; but the court held that they were merely manifestations of 25 Miller v. White . (1881), 5 Bedf. 27 Knight's Estate (1895), 167 Pa. Sur. (N. T.) 320. St. 453, 31 Atl. 682. 26Gorkow's Estate (1899), 20 Wash. as Frere v. Peacocke (1846), 1 Bob. 563, 56 Pac. 385. Ecc. 442. §§ 122-123 WILLS. 72 eccentricity. 29 Yet, insanity has been found on proof of disgusting fondness for the lower animals, exhibited by a lone female, who kept several dogs of both sexes in kennels in her drawing-room, and furnished meals to a multitude of cats provided with plates and napkins. 30 The contrary was held of a man who allowed his cats and dogs to eat with him, played a violin while the corpse of his wife was in the house, slept in the box in which she was to be buried, and said he* did not thank God for killing his sheep. 31 § 122. Hatred for Offspring. It is so natural for par- ents to love their children and wish them well that a find- ing of insanity has often been made because of an aver- sion or hatred by the parent for which no cause whatever could be discovered. 32 When this unaccountable hatred and aversion appears to have been preceded by a feeling of love, the strength of the inference is greatly augu- mented and has been made the basis of a finding of in- sanity, though the object of the hatred was not a direct descendant. 34 So on the other hand, the prejudice or hatred may be entirely accounted for by circumstances which would naturally produce it. 35 § 123. Unjust Wills. Human nature in courts and juries alike is prone to seek for an excuse to deny effect to wills which seem to them unjust. And it frequently happens that a finding that the testator was insane is made to serve the purpose, though the finding would not have been made if the will had pleased the court or jury. That the will makes an unnatural disposition is 29 Morgan v. Boys, cited in 1 Bed- Mich. 98, 66 N. W. 681. But see : field Wills *82, Taylor Med. Juris. Stackhouse v. Horton (1854), 15 N. J. •657. Eq. 202, 228, Eedf. Cas. 110, 125. 30 Taylor Med. Juris. »658. 34 Dew v. Clark (1826), 3 Addams 31 Bennett v. Hibbert (1893), 88 Ecc. 79, 5 Russ. Ch. 163; Merrill v. Iowa, 154, 55 N. W. 93. Holston (1881), 5 Eedf. Sur. (N. T.) 32Boughton v. Knight (1873), L. 220, Chaplin 48. R. 3 P. & D. 64, 69, Chaplin 38, Ab- 36 In re Spencer (1892), 96 Cal. bott 221 ; American Bible Society v. 448, 31 Pac. 453 ; Dobie v. Armstrong Price (1886), 115 111. 623, 641, 5 N. (1899), 160 N. Y. 584, 55 N. E. 302, E. 126; Rlvard v. Rlvard (1896), 109 5 Prob. Rep. An. 170. 73 WHO MAY MAKE A WILL. § 124 indeed a fact worthy of consideration with others tending to prove insanity. 38 Yet there is no question but that the will of a sane person is valid, notwithstanding it may be very unjust or unnatural. The testator may do as he will with his fortune. 37 That the will is just and natural may equally serve to sustain it when the sanity of the testator is questioned. 38 § 124. Conduct Strange or Natural. The actions of the person justly receive considerable attention in these cases. Did he act like a sane man? Are the noticed peculiarities in his conduct accounted for by his former habits when undoubtedly sane, by his temperament, or by the circumstances of the occasion? If the will was drawn by him in person does it contain foolish provisions, incoherent language, or other evidence of insanity; 39 or on the other hand, does it appear to be a rational act rationally done, in keeping with the desires and affec- tions of the person when undoubtedly sane? 40 § 125. Preposterous Beliefs as a Test of Insanity. 4 " The following is a test of insanity given by Sir John Nicholl, in the leading case of Dew v. Clark (1826), 41 and which has been received with much favor. "Whenever the patient once conceives something extravagant to exist which still has no existence whatever but in his own heated imagination; and wherever, at the same time, having once so conceived, he is incapable of being, or at least of being permanently, reasoned out of that concep- tion, such a patient is said to be under a delusion in a peculiar, half -technical sense of the term; and the absence 36Riyard v. Rivard (1896), 109 63 Pac. 413, 53 L. R. A. 387; and see Mich. 98, 66 N. W. 681; Logan's Es- note 1 L. R. A. 161. tate (1900), 195 Pa. St. 282, 45 Atl. 38 Cartwright v. Cartwright (1793), 729; Bough ton v. Knight (1873), L. 1 Phillim. 90, Chaplin 62. R. 3 P. & D. 64, Chaplin 38, Abbott 39 Arbery v. Ashe (1828), 1 Hagg. 221. Ecc. 214; Maynard v. Tyler (1897), 3TBoughton v. Knight (1873), L. R. J68 Mass. 107, 46 N. El. 413. 3 P. & D. 64, Chaplin 38, Abbott 221; 40 Cartwright v. Cartwright (1793), Middleditch v. Williams (1889), 45 I Phillim. 90, Chaplin 62. N. J. Eq. 726, 17 Atl. 826, Mechem * See note 12 L. R. A. 161, 63 Am. 13; Shell Estate (1900), 28 Col. 167, St. Rep. 80-108. « 3 Addams Ecc. 79, 90. § 126 WILLS. 74 or presence of delusion, so understood, forms, in my judg- ment, the true and only test of absent or present insanity. In short, I look upon delusion in this sense of it, and insanity, to be almost, if not altogether, convertable terms; so that a patient, under a delusion, so understood, on any subject or subjects in any degree, is for that rea- son essentially mad or insane on such subject or subjects in that degree." §126. Application of this Test— Danger of Error. Let us try the sanity of the great philosopher Galileo by this test. The men of his time agreed that he conceived something extravagant to exist which had no existence whatever except in his own heated imagination, a thing which according to all known laws was impossible; and they found by trial that he could not be reasoned out of that conception, at least not permanently. By this test he was insane, and such has been the fate of many a noble mind, surpassing the wisdom of the age, and therefore declared insane. § 127. Belief in Witchcraft. Two hundred years ago the great body of Christians believed in witches, and hundreds of poor old ladies, condemned as witches, were burned to death. Cotton Mather, John Wesley, Martin Luther, Sir Edward Coke, the mighty Bacon, the wise Sir Matthew Hale— the acknowledged intellectual leaders of their day, in common with the ordinary folk, all be- lieved in witches. Tried by the above test and the senti- ments of today, all of these are made out to be insane. Belief in witches today is less common, but that does not make it insanity. 42 § 128. Belief in Christian Science.* A will bequeath- ing the major part of the testatrix's estate to a society for the promotion of Christian Science and revoking a former will in favor of her sisters was held valid and properly allowed probate, although it appeared that it 42 Matter of Vedder (1888), 6 Dem. *See note 63 Am. St. Rep. 92. Sur. (N, T.) 92, Chaplin 76. 75 WHO MAT MAKE A WILL. § 129 was induced by an erroneous belief that the testatrix had recovered her health by means of the treatment, and had been persecuted by her relatives for her beliefs. Her sisters had opposed her and their relations had become unpleasant. 43 § 129. Belief in Spiritualism.* "Dr. Johnson was con- fident that he heard the voice of his deceased mother calling his name. * * * The second Lord Littleton was equally persuaded that a divine warning had ad- monished him of his approaching death. The same was true of the Earl of Chesterfield. Abercrombie gives an instance of an habitual hallucination, which at the same time was consistent with reason." 44 Many people of more than ordinary intelligence believe in spiritualism today, and such belief is everywhere admitted to be con- sistent with sanity. It is not even evidence of insanity. 45 § 130. Conclusions From Above. A sane person may be superstitious or over credulous, and many are so. If infallible judgment were essential to testamentary ca- pacity, who of us could make a will? Are not rational persons frequently pertinacious in error? Is it not beg- ging the question to affirm that a rational person would not believe it? Perhaps the party condemning is the one really in error. And yet can we judge of others (and we must judge) except by our own experience? § 131. Effect of Error. As sane persons may be prejudiced, credulous, illogical, and inconsistent, insanity cannot be predicated upon these things alone. The cor- rectness of the belief is immaterial, except in so far as its extravagance is evidence of insanity. No belief how- ever erroneous, can be certainly affirmed to be an insane 43 Matter of Brush (1901), 35 Misc. 45 Robinson v. Adams (1870), 62 Me. 689, 72 N. Y. S. 421. 369, Eedfleld Caa. 367; Otto v. Doty •See notes 63 Am. St. Eep. 91, 36 (1883), 61 Iowa 23, 15 N. W. 578; Am. Eep. 426, et seq. Brown v. Ward (1879), 53 Md. 376, 44 Dunham's Appeal (1858), 27 36 Am. Eep. 422; Middleditch v. Conn. 192, 203, Eedfleld Cas. 93. See Williams (1889), 45 N. J. Eq. 726, also Wharton & Stille Med. Juris. §§ 17 Atl. 826, Mechem 13 ; Smith's Will 52-57. (1881), 52 Wis. 543, 8 N. W. 616. § 131 WILLS. 76 delusion if it might be based on reasoning, no matter how illogical, or on evidence, no matter how weak. Was there anything to produce such a belief in a very super- stitious, suspicious, credulous, prejudiced, and illogical mind? If there was, we cannot call the belief an insane delusion. Such has been held of an erroneous belief that a spouse was unfaithful; 46 that a child was illegiti- mate; 47 that his son was in conspiracy to defraud him of his land, because he had taken sides with a neighbor on a boundary dispute, the son and neighbor being Masons; 48 that his children had treated him unkindly; 49 that his brother was a rogue and a hypocrite; 50 that his former will had been hid by his grandchild to prevent change; 51 that, in contesting his mother's will, his father was trying to injure him; 52 that a double dose of mor- phine given by a sister was intended to kill; 53 that she was "persecuted" by her brothers for belief in Christian Science which had cured her; 54 and that every attention of the contestant was mercenary, with a view to obtain- ing favor under the testator's will. 65 In each of these cases the court was convinced that the belief was without any foundation in fact, and it was certain that the con- testant was deprived of the succession because the testa- tor entertained such mistaken belief. But the falseness of the belief was not ground for denying effect to the will, since the delusion was not an insane delusion. That the will would not have been made but for such belief did not make it any less the testator's will. 46 Scott's Estate (1900), 128 Cal. 57, 48 Short) v. Brubaker (1883), 94 Ind. 60 Pac. 527, 5 Prob. Rep. An. 498; 165. Cole's Will (1880), 49 Wis. 181, 5 N. bo Stevens v. Leonard (1900), 154 W. 346; Potter v. Jones (1891), 20 Ind. 67, 56 N. B. 27, 5 Prob. Reji. An. Ore. 239, 251, 25 Pac. 772, 12 h. R. A. 369. 165. 51 Martin v. Thayer (1892), 37 W. 47 Clapp v. Fullerton (1866), 34 N. Va. 38, 16 S. B. 489. Y 190, Redfield Cas. 105. Compare 62 Merriman's Appeal (1896), 108 Haines v. Hayden (1893), 95 Mich. Mich. 454, 66 N. W. 372. 332, 54 'N. W. 911. 53 Kendrick Estate (1900), 130 Cal. 48 White's Will (1890), 121 N. Y. 360, 62 Pac. 605. 406, 24 N. E. 935; compare Heming- 64 Matter of Brush (1901), 35 Misc. way's Estate (1900), 195 Pa. St. 291, (N. Y.) 689, 72 N. Y. S. 421. 45 Atl. 726; Schneider v. Manning 56 In re McGovcrn (1898), 185 Pa. (1887), 121 111. 376, 12 N. E. 267. St. 208, 39 Atl. 816, 3 Prob. Rep. An. 1. 77 WHO MAY MAKE A WILL. § 132 §132. Distinction Between Error and Insane Delu- sion. An insane delusion has been variously defined to be a belief in something extravagant, something which no sane person would or could believe, something in the nature of things impossible, or which has no foundation in fact. It is none of these. I submit that an insane person might entertain a delusion that is not extravagant, that is not in the nature of things impossible, that a sane person might believe, and that even coincides exactly with the true facts. An insane delusion is a belief in- duced by insanity, yet it might possibly be correct. The error is simply a means of detecting it, and not always very satisfactory at that. 56 § 133. Effect of Mental Derangement on Testamentary Capacity. Having surveyed the various means of dis- covering whether the mind is disordered, temporarily or permanently, on some matters or on all matters, let us consider the effect of such derangement when it is found to exist. Only the will of the testator can be al- lowed probate as his will. Nothing done by him when he was not in possession of his faculties can be said to be an expression of his will. It matters not whether the loss of his senses is due to insanity, arduous spirits, other drugs, delirium from disease, or other cause. § 134. Lucid Intervals. "When the delusions are in- termittent, coming and going at regular or irregular periods, as is usually the case with delusions accompany- ing paroxysms of excitement or depression, the period of time during which the mind is free from the delusion and acts normally is called a lucid interval. No delusion incapacitates the person from making a will, except while such delusion lasts. The insane person may make a will during any such lucid interval, though the disease still remains and is growing constantly worse. 57 seMedlll v. Snyder (1899), 61 Kan. 18, Chaplin 58; Cartwrlght y. Cart- 15, 58 Pac. 962, 5 Prob. Rep. An. 216. wright (1793), 1 Philllm. 90, Chaplin 87 MacPheraon'g Will (1889), 20 N. 62. I. St 868, 4 N. Y. Supp. 181, Mechem § 135 wills. 78 § 135. What Insane Delusions Destroy Testamentary Capacity. A person may make a valid will while suf- fering from an insane delusion, whether such delusion is constant or recurrent, unless it touches the subject-mat- ter of the will; B7a that is to say, unless it pertains to the property, the beneficiaries, or those who would succeed to the property if the will were not made. 58 "Instance the case of an individual having two sons, his only heirs- at-law, and a nephew, to whom he is under peculiar moral obligations to leave a liberal portion of his estate. He acknowledges his obligation, and he intends that his nephew shall be an object of his bounty, and shall share with his legal heirs his whole property. He suddenly conceives the notion that his nephew has become a king, or an inheritor of immense wealth, and under this vain delusion he makes his will, leaving his whole estate to his sons— to one of them two-thirds, and the remaining third to the other, the proportion between the two sons being in no wise affected or having no connection with the delusion towards the nephew. Can the validity of such a will be questioned? Cui bono? Not by the nephew. The delusion, it is true, has lost to him a valuable es- tate; but the interposition of a court, by refusing pro- bate to the will, cannot make him an heir-at-law or a participator in the inheritance. Nor can the son who takes the lesser portion of the estate impeach the will, for the delusion in no way affected the disposition made to him." 59 But let us change the facts of this supposed case slightly. Suppose there were an earlier will in 57a See note 63 Am. St. Rep. 94. the will. Banks v. Goodfellow (1870), 68 Kendrick's Bstate(1900), 130 Cal. L. R. 5 Q. B. 549, Abbott p. 211. "A 360, 62 Pae. 605 ; Dunham's Appeal man may believe himself to be the Su- (1858), 27 Conn. 192, Redfield Cas. 93; preme Ruler of the universe, and never- Morse v. Scott (1885), 4 Dem. Sur. theless make a perfectly sensible dispo- (N. T.) 507, Abbott p. 209. A delu- sition of his property, and the courts sion that strange people were in will sustain it when it appears that the house does not destroy tes- his mania did not dictate its provi- tamentary capacity. Shreiner v. sions." Cooley, J., in Fraser v. Jen- Shreiner (1896), 178 Pa. St. 57, nison (1879), 42 Mich, 206, 232, 3 N. 35 Atl. 974. A will was sustained W. 882. though made by a man under a delu- 59 Stackhouse v. Horton (1854), 15 sion that another long dead was pur- N. J. Bq. 202, 225, Bedfield Cas. 110, nilni* htwn Thu rlnlnoi^n A I A nit* affartt- 194 79 WHO MAY MAKE A WILL. § 13ft favor of this nephew, which was revoked by the last one. Now we have an insane delusion concerning one who would succeed to the property if the will affected by the insane delusion had not been made. The courts will not suffer the course of succession to be changed by an insane delusion, though that course be one of testate, not of intestate, succession. 60 § 136. Delusions Concerning the Beneficiaries. No will can stand which is induced by insane delusions concern- ing the beneficiaries under it. Such has been held of wills induced by the insane delusion that the testator was morally bound to leave his property to the chari- ties made beneficiaries under it; 61 that the Lord had commanded him to make the will in question, directing the disposition to be made by it; 62 that the beneficiary was a supernatural person sent by God to redeem the world from its sins; 63 and again that the testatrix was the Holy Ghost, that her physician (the beneficiary) was the Father, that her deceased husband was the devil, and that all her children (born of the devil) were doomed to eternal perdition. 64 A will in favor of the trustees of a church, requiring them to provide for the perpetual pres- ervation of the testator's tomb was held void because it was induced by an insane delusion that the testator's body was to be preserved till the end of time. The court said that a similar will for the same purpose, by a sane person entertaining such a belief would have been sus- tained. 65 § 137. Delusions Concerning Anyone Prejudiced. No will can stand that is induced by an insane delusion con- cerning anyone who, but for such will would succeed to the property, either by virtue of a former will 66 or by 60 Merrill v. Rolston (1881), 5 Redf. 63 Orchardson v. Cofield (1898), 171 Sur. (N. T.) 220, Chaplin 48. 111. 14, 49 N. E. 197. 61 American Bible Society v. Price 64 Smith v. Tebbltt (1867), L. E. 1 (1886), 115 111. 623, 5 N. E. 126. P. & D. 398. 62 Taylor v. Trlch (1895), 165 Pa. 65 Morse v. Scott (1885), 4 Dem. St. 586, 30 Atl. 1053, 44 Am. St. Rep. Sur. (N. T.) 507, Abbott p. 209. 679; Robinson v. Adams (1870), 62 66 Merrill v. Rolston (1881), 5 Redf. Me. 369, Redfield Cas. 367. Sur. (N. Y.) 220, Chaplin 48. § 138 WILLS. 80 intestate succession; and it is for this class of delusions that wills are most frequently assailed. For example, the will is avoided by a mere insane hatred for the per- son prejudiced by such hatred, 68 or by an insane belief of any prejudicial thing concerning him or her 69 — that she was not his child, 70 that she was a prostitute, 71 or that the testatrix had been wronged by her children. 72 4. PEBSONS "UNDEB CONSTBAINT." § 138. Kinds of Constraint. I began the discussion of testamentary capacity by asserting the general prop- osition that anyone of full age, sound mind, and not under constraint may make a will. "What constitutes full age and sound mind has now been sufficiently ex- plained; but constraints yet remain to be considered. All constraints are either in law or in fact. In his treatise on Wills, first published about A.D. 1590, Henry Swinburne gives a long list of persons constrained by law from making wills; of which the following are a few: traitors, felons, suicides, heretics, apostates, usurers, libellers, sodomites, ecclesiastics, married women, pris- oners of war, slaves, villains, and aliens. 73 Nearly all of these legal constraints have been removed long ago; and usurers, libellers, heretics, and prisoners of war were never incompetent at common law, but only under the civil and ecclesiastical law. 73a Aliens, traitors, felons, and married women, deserve special mention before we pro- ceed to consider constraints in fact. § 139. Aliens— As to Personalty. At common law, an alien friend could make an indefeasible will of per- sonal property to any amount, 74 and the property of an 68 Dew T. Clark (1826), 3 Addams 71 Bivard v. Rivard (1896), 109 Bcc. 79; Merrill v. Eollston (1881), 5 Mich. 98, 66 N. W. 681. Eedf. Sur. (N. Y.) 220, Chaplin 48; 72 Ballantine v. Proudfoot (1885), Lucas v. Parsons (1859), 27 Ga. 593. 62 Wis. 216, 22 N. W. 392. 69 Segur's Will (1899), 71 Tt. 224, 73 Swinburne Wills, book 1, part 2. 44 Atl. 342; Thomas v. Carter (1895), 73a 2 BI. Com. 492-499. 170 Pa. St. 272, 33 Atl. 81. 74 1 Bl. Com. 372. 70 Haines v. Hayden (1893), 95 Mich. 332, 54 N. W. 911. 81 WHO MAY MAKE A WILL. § 140 alien enemy domiciled within the country is equally pro- tected. But the wills of alien enemies domiciled else- where, though transiently residing here, are less se- cure, by reason of the liability of all property of such persons to seizure and confiscation unless removed or sold to a citizen or neutral within a reasonable time after war declared. 75 § 140. Aliens— As to Land. At common law, an alien could take land by grant or devise, 76 though not by descent; 77 and the title thus acquired was good, in defense at least, against all the world except the sov- ereign; 78 who might avoid it and have the land for- feited to the state: by office found and entry while at peace with the nation of the alien, or by entry and con- fiscation during war, but not without entry in any case except by office found when the land was vacant. 79 As aliens have no inheritable blood, their lands would escheat to the sovereign without office found if they should die intestate. But the alien's will, whether he be friend or enemy, passes to his devisee all the estate the alien had; and the title of the devisee can be divested only by proceedings instituted for that purpose in the name and behalf of the state, as above indicated. 80 Such has been the accepted law since the time of the yearbooks. Statutes have been passed in England 81 and in many of the United States 82 abolishing all these restrictions upon aliens; but in some states the restrictions have been re- moved in part only or not at all. It all depends on the statutes, which should be consulted. 75 The William Bagaley (1866), 72 80 Tear-book 11 Henry IV, 26; Coke U. S. (5 Wall.) 377, 408. Lit. 2b; Page's Case (1788), 5 Coke 76 Fairfax v. Hunter (1813), 11 U. 52; Fairfax v. Hunter (1813), 11 TJ. S. (7 Cranch) 603. S. (7 Cranch) 603, 619, containing an 77 Slater v. Nason (1834), 32 Mass. extended review of authorities by Story, (15 Pick.) 345; Crane v. Reader J. (1870), 21 Mich. 24, 70. 8133 Vic. c. 14 § 2 (1870). 78Waugh v. Riley (1844), 49 Mass. 82 Lumb v. Jenkins (1868), 10ff (8 Mete.) 290, 295; Bradstreet v. Su- Mass. 527; Mich. Const. Art. XVIII pervisors (1835), 13 Wend. (N. T.) § 13; Thompson v. Waters (1872), 25 546. Mich. 214, 227. 79 Fairfax v. Hunter (1813), 11 TJ. S. (7 Cranch) 603. 6 § 141 WILLS. 82 § 141. Traitors and Felons— At Common Law. The wills of traitors, felons, suicides, and the like, were in- effectual in England at common law, not for any lack of testamentary capacity, but solely for want of anything to bequeath; 83 which appears from Shepherd's Touch- stone, *404; where it is said, "A man that is attainted or convicted of felony cannot make a testament of his lands or goods, for they are forfeited; but if a man be only indicted, and die before attainder, his testament is good for his lands and goods both." Lands were never forfeited without an attainder in due course of law, which was not always necessary to a forfeiture of goods. For example, a suicide could not pass goods by will, for they were forfeited by the manner of his death; but he might make a devise of his lands. 84 § 142. Statutes and Constitutional Provisions. Now attainders, corruptions, and forfeitures, are abolished in England, by statute, 33 and 34 Vic. (1870) c. 23; and it is provided by the United States Constitution that no state shall pass any bill of attainder (Art. I § 10), and that no attainder of treason against the United States shall work corruption of blood or forfeiture except dur- ing the life of the person attainted (Art. Ill § 3). It is also provided in the constitutions or statutes of most of the states that no conviction shall work forfeiture or cor- ruption of blood. 85 §143. Effect of Above. Forfeitures being thus abolished for the benefit of the children, congress has power to deprive the traitor of the estate during his life, and of the remainder so far as to prevent his disposing of it by will or otherwise; 86 and it has been provided in some of the state statutes that convicts may not make 83 Rankin v. Rankin (1827), 22 Ky. Art. I § 19 ; Minn. Const. Art. I § 11 ; (6T, B. Mon.) 531. Mo. Const. Art. II § 13 ; Wis. Const 84 2 Bl. Com. 499. See also Bacon Art. I § 12. Abr. tit. Wills and Testaments B. 88 Wallach v. Van Rlskirk (1875), 85 111. Const. Art. II § 11 ; Ind. Const. 92 U. S. 202 ; Illinois Cent. By. Co. V Art. I § 75; Ky. Const. § 20; Ohio Bosworth (1890), 133 U. S. 92. Const. Art. I § 12 ; Penn. Const. 83 WHO MAT MAKE A WILL. § 144 wills. 87 But where no such provision exists the traitor or convict may make a will; 88 and it is held that a person convicted and sentenced to be hanged is not yet so far civilly dead as to prevent him making a valid will at any time before the sentence is executed; 89 § 144. Married Women*— As to Personalty at Com- mon Law. It is not easy to ascribe the precise legal reason for the incapacity of married women to make wills at common law. It was not sex, for maids and widows were early allowed the same liberty as men in making wills. 90 Among the Romans there was no distinction; a married woman was as capable of bequeathing as a feme sole. 91 By the common law the marriage operated as an absolute gift by the wife to her husband of all her chattels then possessed or afterwards acquired and which the husband should reduce to his possession during cov- erture; and he might dispose of her chattels real, and had them to himself if he survived her without disposing of them; 92 which was inconsistent with her power to bequeath them to another. Her will made before mar- riage was equally ineffectual, being revoked by the mar- riage. 93 Yet if she should dispose of any of his chattels by a will made with his consent or assented to expressly or impliedly afterward, he would be estopped to deny her right to make such disposition unless he revoked his consent before the will was probated; and acknowledg- ment of the validity of the will after her death was held to conclude him even before probate. 94 His consent that she should make a will would not do ; he must have given his assent to the particular will with a knowledge of its 87 Pub. Stat. E. I. (1882), c. 248 § 82 Ibid. 52; Kenyon t. Saunders (1894), 18 E. 93 In re Carey's Estate (1877), 49 I. 590, 592, 30 Atl. 470. Vt. 236. And see post § 372. 88 1 Bigelow's Jarman *47. 94 Cutter v. Butler (1852), 25 N. 89Eankin v. nankin (1827), 22 Ky. Ham. (5 Foster) 343, 357, 57 Am. Dec. (6 T. B. Mon.) 531. 330. And such consent was held pre-, ♦See note 57 Am. Dec. 340-349. sumed from the husband participating so Bracton lib. 2 c. 26, f. 60b ; Olan- in the preparation of the will. Eeed ville lib. 7c. 5. v. Blaisdell (1844), 16 N. H. 194, 41 91 2 Bl. Com. *497. Am. Dec. 722. § 145 wills. 84 terms; 95 and even then the assent would have been in- effectual if he did not survive his wife, 96 or if he did survive her but revoked his consent before the will was probated. 97 Which would indicate that the property passed from the husband rather than from the wife, by his act rather than by her will. 98 § 145. As to Real Property at Common Law. The marriage did not transfer the wife's real property abso- lutely to the husband at common law; but only gave him the right to use and manage it during coverture, and to an estate in it for the remainder of his life after his wife's death if living issue was born of the marriage. Possibly married women were allowed to dispose of uses by will before the statute of uses, 27 Hen. VILT, A. D. 1535; but legal titles in freehold estates in lands not be- ing devisable according to the feudal doctrines, no ques- tion of a married woman's power to devise the interest not acquired in her lands by her husband could arise till it was provided by statute 32 Hen. VHI, c. 1, A. D. 1540, "that all and every person and persons" having any interest in lands might devise them. §146. Effect of Early Statutes of Wills. These terms were broad enough to include married women, and seem to have been so interpreted by the ecclesiastical courts ; 99 but three years later it was provided in an act of parliament, passed to settle numerous doubts as to the meaning of this statute, "that wills or testaments made of any manors, lands, tenements, or hereditaments, by any woman covert, shall not be taken to be good or effec- tual in law. 1 It has been argued that aside from this pro- vision the only difficulty in the way of a married woman making a will at common law was the fact that she had QsWillock v. Noble (1875), L. B. 7 Ecc. 364, 10 Jur. 417; George v. Buss- H. L. 580; Cutter t. Butler (1852), 25 Ing (1855), 54 Ky. (15 B. Mon.) 558. N. Ham. 343, 357, 57 Am. Dec. 330. 08 Osgood v. Breed (1815), 12 Mass. oeWlllock v. Noble (1875), L. R. 7 532. H. L. 580; Stevens v. Bagwell (1808), 99 Burns's Ecc. Law 47. 15 Ves. 139, 156. l 33-34 Hen. VIII c. 5 § 14, A. D. 97 Mass v. Sheffield (1845), 1 Bob. 1542-3. g5 WHO MAY MAKE A WILL. § 147 nothing to dispose of. 2 But the courts held that it was "not merely because marriage was a gift of her person- alty to her husband, but because in the eye of the law the wife had no existence separate from her husband, and no separate disposing or contracting power." 3 Hers was "a civil disqualification arising from want of free agency." 4 Under statutes providing in terms quite as comprehensive as the first statute of wills, 32 Hen. VTII c. 1, and even with exceptions added, for example, that "every person lawfully seized and possessed of any real estate in this state, and of the age of twenty-one years and upwards, and of sane mind, shall have power to give, devise, and dispose of the same by a will in writ- ing;" it has been held in the United States that a married woman could not make a valid devise of her lands to any person whatever, 5 even with the written consent of her husband. 6 Yet there are decisions holding that such statutes enabled married women to devise their lands. 7 §147. Wills Always Effectual Without Consent. The reasons assigned above for the incapacity of married women to make wills are not entirely satisfactory, be- cause there were some purposes for which a married woman's will was always admitted to be effectual at law though made without the consent of her husband, and in many cases the reason assigned for the exception was the husband's lack of right to the property. For ex- ample, "any feme-covert may make her will of goods which are in her possession in auter droit, as executrix or administratrix; 8 for these can never be the property 2 See the arguments in Willock v. s Osgood v. Breed (1815), 12 Mass. Noble (1875), L. E. 7 H. L. 580; Mars- 525; Baker v. Chastang (1850), 18 Ala. ton v. Norton (1830), 5 N. Ham. 205. 417; Newlin v. Freeman (1841), 23 N. 3 Willock v. Noble (1875), L. R. 7 Car. (1 Ired. L.) 514. H. L. 580; Osgood v. Breed (1815), 12 6 Marston v. Norton (1830), 5 N. Mass. 525. Ham. 205. i Marston v. Norton (1830), 5 N. 7 Allen t. Little (1831), 5 Ohio 65. Ham. 205, 212 ; In re Carey's Estate And to the same effect see : Bennett v. (1877), 49 Vt. 236, 246. But see Fel- Hutchinson (1873), 11 Kan. 398. lows v. Allen (1881), 60 N. Ham. 439, 8 Scammell v. Wilkinson (1802), 2 442, 49 Am. Bep. 328. East 552. § 148 WILLS. 86 of her husband." 9 Wills disposing of personalty never reduced to possession by the husband have been sustained for the same reason, though made without his consent and never approved by him. 9a But this is contrary to later decisions. 10 A will made during coverture was denied effect as a disposition of property acquired after the death of the husband. 11 The wife of a felon-convict, person transported and forbidden to return, or alien non- resident, could at common law make a will as a feme sole. 12 §148. Effect of Surviving Her Husband. A will well made without the consent of the husband was not in- validated by the death of the husband before the wife; 13 nor did a will made during coverture and bad then be- come good by her surviving her husband 14 and affirming the will after his death, unless the affirmance amounted to a re-execution of the will. 15 § 149. Whether to Be Allowed Probate. From the effect of a married woman's will in disposing of some property, the question would seem to be one of power to dispose rather than of power to make a will; so that the logical course would seem to be to admit the will to probate whenever it appears to have been executed in due form by one having sufficient understanding, age, and freedom of will, leaving the effect of the instrument to be determined in an action instituted for that purpose in a proper court. This course has been adopted in a few states; 16 but the more common practice has been to 9 2 Bl. Com. »498. 13 Bishop v. Wall (1876), L. R. 3 9a Scammell v. Wilkinson (1802), 2 Ch. Diy. 194. East 552. 14 Osgood 7. Breed (1815), 12 Mass. lOWlllock v. Noble (1875), L. R. 525;. Scammell v. Wilkinson (1802), 2 7 H. L. 580 ; In re Carey's Estate East 552. (1877), 49 Vt. 236. Compare Hood v. 15 Willock v. Noble (1875), L. R. 7 Archer (1819), 1 McCord (S. Car.) H. L. 580. And see Burkett v. Whitte- 225. more (1891), 36 S. Car. 428, 15 S. E. li Willock v. Noble (1875), L. R. 7 616. Contra: Porter v. Ford (1884), H. L. 580; Scammell v. Wilkinson 82 Ky. 191. (1802), 2 East 552. 16 Buchanan v. Turner (1866), 26 12 1 Bigelow's Jarman *42. Md. 1. And see Holman v. Perry (1842), 45 Mass. (4 Mete.) 492. 87 WHO MAY MAKE A WILL. § 150 deny the will probate unless it appeared that something was well disposed of by it. 17 § 150. In Equity. The English chancellors did not regard married women as any more capable of devising their ordinary equitable interests than their legal es- tates; but they interpreted the statute 34-35 Hen. VIII c. 5 § 14, A. D. 1542-3, not to extend to the equitable sepa- rate estates of married women, because these estates were creatures of the courts of equity and unknown till some time after this statute was enacted. 18 In this country the separate estates of married women have been more regu- lated by statutes, and the courts have not always gone so far as the English chancery in holding property to be part of the married woman's equitable separate estate. But in so far as such estates have been recognized, it has long been well established that the will of a married woman made without the consent of her husband and without any enabling statute was effectual to dispose of any property settled upon her to her sole and separate use, without any provision being made authorizing her to dispose of it by will or otherwise, 19 whether the estate were vested in her during coverture or contingent on her surviving her husband, 20 whether the property were realty 21 or personalty, 22 and whether she owned it before and with consent of her intended, conveyed it to trustees for her use in view of her marriage, 23 or acquired it by marriage settlement, 24 by gift from her husband it Hickman v. Brown (1889), 88 Ky. Ch. (4 DeG. J. & S.-) 597; Pride v. 377, 11 S. W. 199; Smart v. Tranter Bubb (1871), L. E. 7 Ch. App. 64; Hall (1888) L. R. 40 Ch. Div. 165; In Goods v. Waterhouse (1865), 5 Giff. 64; Hol- of Price (1887), L. K. 12 P. D. 137. man v. Perry (1842), 45 Mass. (4 is Taylor v. Meads (1865), 69 Eng. Mete.) 492; Schull v. Murray (1869), Eq. (4 DeG. J. & S.) 597. 32 Md. 9. 19 Because the right to dispose of it 22 Fettiplace v. Gorges (1789), 1 Ves. is a necessary incident of ownership. Jr. 46, 3 Bro. C. C. 8, Abbott p. 201 ; Fettiplace v. Gorges (1789), 1 Ves. Jr. Ash worth v. Outram (1877), L. E. 5 46, 3 Bro. C. C. 8, Abbott p. 201 ; Rich Ch. Div. 923. v. Cockell (1802), 9 Ves. 369. 23 Holman v. Perry (1842), 45 Mass. 20 Bishop v. Wall (1876), L. B. 3 Ch. (4 Mete.) 492. Div. 194. 24 Bishop v. Wall (1876), L. E. 3 21 Taylor v. Meads (1865), 69 Eng. Ch. Div. 194. § 151 WILLS. 88 through trustees after marriage, 25 by gift from another to trustees for her use 26 or to her for her separate use without the intervention of trustees, 27 or acquired by her earnings or business conducted apart from her husband's control. 28 A mere contract entered into between her and her intended husband before mar- riage, providing that she should retain power to dispose of specific lands 29 or goods was held sufficient to support her devise or bequest of them, though no conveyance to trustees was made, the court of chancery giving effect to the agreement as a trust imposed upon the husband. 30 A power given her by will or deed, before or during cover- ture, to dispose of certain lands or personalty notwith- standing coverture, could be exercised by will made dur- ing such or any subsequent coverture, without consent of her husband, unless the instrument creating the power provided that it should be exercised by deed. 31 § 151. Under the Modern Statutes. The Statutes of Wills, 1 Victoria c. 26, § 7, A. D. 1837, provided, "that no will made by a married woman shall be valid, except such a will as might have been made by a married woman before the passage of this act." The Married Women's Property Act, 45 and 46 Victoria c. 75, A. D. 1882, en- 25 By deed of separation conveying sufficient. Hickman v. Brown (1889), land, held by her husband in his own 88 Ky. 377, 11 S. W. 199. right and other land held by him in her 30 Peacock v. Monk (1750), 2 Ves. right, to trustees for her use. Pride v. Sr. 190; Fettiplace v. Gorges (1789), Bubb (1871), L. R. 7 Ch. App. 64. 1 Ves. Jr. 46, 3 Bro. C. C. 8, Abbott p. 26 Hall v. Waterhouse (1865), 5 Gift. 201 ; Pride v. Bubb (1871), L. R. 7 Ch. 64; Buchanan v. Turner (1866), 26 App. 64. Md. 1; Picquet v. Swan (1827), 4 Ma- si 1 Bigelow's Jarman *40 ; Taylor son 443, Fed. Cas. 11,133. v. Meads (1865), 69 Eng. Ch. (4 DeG. 27 Tappenden v. Walsh (1811), 1 J. & S.) 597. Lack of intent renders Eng. Bcc. (1 Pbilli. 352) 100; Bmmert a will ineffectual as an exercise of a v. Hayes (1878), 89 111. 9. power given after the will was made. 28 Haddon v. Fladgate (1858), 1 Sw. Burkett v. Whittemore (1891), 36 S. & T. 48; Ashworth v. Outram (1877), Car. 428, 15 S. B. 616. It has been L. R. 5 Ch. Div. 923. held that the writing made in form of a 29 Wright v. Lord Codogan (1764), will in execution of the power should 2 Eden 239; Bradish v. Gibbs (1818), be probated as to the personalty but 3 Johns. Ch. (N. T.) 523, 540; West v. not as to the realty and that denial of West (1824), 10 Serg. & R. (Pa.) 447; probate would not prevent giving effect Johnson v. Johnson (1894 Ky.), 24 to the instrument afterward as an exer- S W. 628. A parol agreement held in- cise of a power. Newlin v. Freeman (1841), 23 N. Car. (1 Ired. L.) 514. 89 WHO MAY MAKE A WILL. § 151 abled married women to hold and dispose of all of their property real and personal the same as a feme sole. 32 During the past fifty years statutes have been enacted in most if not in all of the states of the United States giving to married women independent control of all property owned by them at marriage or acquired afterward, and giving them power to dispose of all such property as if unmarried. Sometimes these provisions are found only in the statutes prescribing the rights and powers of mar- ried women, and sometimes the statutes concerning wills expressly empower married women. The statutes differ considerably in their terms and scope, and few of them have received any considerable judicial interpretation with regard to wills. The exact law in any state can be ascertained only by examining the statutes of that state and the decisions upon that and similar statutes. But the general trend and effect of tbe statutes is to put married women on a footing with men in making wills. 33 Many of them do not enable the wife to cut her husband off without anything, unless he waives his claim; 34 but others allow her to defeat his curtesy and deprive him of any part of her personalty. 35 32 In Goods of Price (1887), L. R. Bq. 890; Michigan Const. Art. 16, § 5 ; 12 P. D. 137. But eee narrow construe- Mich. Comp. Laws 1897, § 8690 ; Zim- tion in Stafford v. Stafford (1885), 28 merman v. Schoenfeldt (1875), 3 Hun Ch. Diy. 709. (N. T.) 692. See also post, §§ 373, 33Emmert v. Hays (1878), 89 111. 374. 9; Thornton Ind. Stat. (1,897), || 2778, 34 Tyler v. Wheeler (1893), 160 2779; Hickman v. Brown (1889), 88 Mass. 206, 35 N. E. 666; Kelly v. Ky. 377, 11 S. W. 199; Hughes v. Aired (1888), 65 Miss. 495, 4 South. Palkner (1900, Ky.), 56 S. W. 642; 551; Hayes v. Seavey (1898), 69 N. Sehull v. Murray (1869), 32 Md. 9; Ham. 308, 46 Atl. 189. Mass. Rev. Laws (1902), Ch. 135, § 35 Klracofe v. Kiracofe (1896), 93 1; Stoughtenburgh v. Hopkins (1887), Va. 591, 25 S. E. 601; Zeust v. Staffan 43 N. J. Eg. 577, affirmed in 45 N. J. (1900), 16 App. Cas. D. C. 141. CHAPTER Vn. ERROR, FRAUD, AND UNDUE INFLUENCE. §152. 1. Errors. §153. §154. §155. §156. §157. § 158. §159. §160. §161. §162. §163. §164. §165. §166. §167. §168. 2. Fraud. §169. §170. §171. §172. Retrospect and Forecast. Kinds of Errors. Errors as to Identity of Instrument — Mutual Wills. — Not Curable by Reformation nor by Curative Act. O t b e r ments. Instru- -Clauses and Words Erroneously In- cluded. English Cases. American Cases. Clauses and Words Er- roneously Omitted. Omission of Provision for Child. — Effect. What is Provi- sion and Who are Children. Proof of Inten- tion. Right to Probate. Provisions Induced by Mistakes. Reformation In Equity — No Consideration. Probate Conclus- ive on Validity. Construction not Determined by Probate. Nature. Effect. Essentials. Jurisdiction to Declare Will Void for Fraud. § 173. Remedies of Persons Prejudiced by the Fraud. § 174. Evidence to Establish Fraud. Undue Influence. § 175. What Constitutes Undue Influence. § 176. Same — Comparison of Powers. § 177. Influence of Confidence in or Affection for Wife. § 178. Influence of Children. , § 179. Influence of Kind Treat- ment and Services. § 180. Influence of Hatred, An- ger, and Prejudices. § 181. Influence of Flattery. § 182. Influence of Illicit Rela- tions. § 183. Influence by Persuasion, Appeals to Affection, Gratitude, or Pity. § 184. Effect of Undue Influ- ence. § 185. Effect of Ratification or Repentance. § 186. Evidence Competent and Relevant. Principal Eviden- §187. §188. §189. §190. §191. tiary Facts. E v i d e n c e not Competent. Burden and Sufficiency of Proof. C i r c u m stantial Evidence to Satisfy. Confidential Rela- tions. § 152. Retrospect and Forecast. Having disposed of the legal constraints on will making, I have yet to dis- cuss constraints in fact. The mil to which the law seeks to give effect is that which represents the voluntary and intelligent desire of the testator. Nothing else can be said to be his will. A will made by one having sufficient 90 91 EEEOE, FBAUD, AND UNDUE INFLUENCE. § 153 understanding, of sufficient age, and not under any other legal disability, may fail to represent this desire by rea- son of error of, or fraud or undue influence imposed upon, the testator. It may appear at first that these cannot all be included under the head of constraints; but broadly interpreted, constraint may be said to include every influ- ence which produces a will not representing the voluntary and intelligent wish of the testator; and these influences all fall within one or another of the groups above men- tioned—error, fraud, or coercion. Of these in the order named. 1. EEEOES. § 153. Kinds of Errors. Errors as to the identity or contents of the instrument are fatal, because the writing never was the testator's will. Errors of law or fact which indueed the testator to make the will or certain provisions in it are not fatal to it, because the will as written ex- presses what the testator desired, though he might not have desired it if he had understood the law and facts correctly. § 154. Errors as to Identity of Instrument— Mutual Wills. In several cases persons intending to make mu- tual wills in favor of each other have, by mistake, each executed the one prepared for the other to sign, and failed to discover the blunder till the death of one of them. All of these wills have necessarily been held incurably void. 36 The paper as executed could not be allowed as the will, for the deceased never intended such a will. In one of these cases Sir J. Hannen, in giving the opinion of the court said, "If I were to attempt to read it as her will, it would lead to a variety of absurdities. She leaves to her sister Sarah, that is to herself, a life interest * * * which she holds in part with herself. I am asked to treat 36 In Goods of (1849), 14 433; Nelson v. McDonald (1891), 61 Jur. 402; In Goods of Hunt (1875), L. Hun 406, 16 N. T. Supp. 273, 41 N. T. K. 3 Pro. & Div. 250, Mechem 30, Ab- St. 1. See also article In 5 Law Notes bott p. 264, Reeves 18 ; Alter's Appeal 204. (1871), 67 Pa. St. 341, 5 Am. Kep. § 155 WILLS. 92 this as a misdescription. * * * No court ought to base its judgment on something wholly artificial and con- trary to what everyone must see is the real state of the circumstances. * * * As regards this legacy it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not in fact know and approve of any part of the con- tents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it." 37 It cannot, therefore, be allowed unchanged and entire. § 155. Not Curable by Reformation nor by Curative Act. On the other hand, it cannot be reformed. The rea- son is well stated by the court in another case, as follows : ' ' Suppose, instead of signing the will of his wife, he had, through a similar mistake, signed a deed or a blank piece of paper, is it possible that the court could, when satisfied that he intended to make a will containing certain ascer- tained provisions, transform such deed or blank paper into the will he intended to make? If not how does this case differ? In either case the will he intended to make is not executed by him. * * * The fundamental error in this case was not in the employment in his will of lan- guage that was ambiguous, uncertain, or which did not correctly express the decedent's intention. It lies in the fact that the paper sought to be established as his will was never intended by him as such. His intention was to make another will which he had prepared but not exe- cuted." 38 In one of the other cases, after the will had been denied probate, the legislature passed a special act authorizing the register to admit the will if the facts could be established by parol. The court held the act void, saying, "The objection * * * lies not in a want of power in the legislature to establish a will upon parol proof of the fact of making it, and of the intent to execute the proper paper, but in its want of power to divest 37 In Goods of Hunt, supra. 38 Nelson v. McDonald, supra. 93 EEEOE, FEAUD, AND UNDUE INFLUENCE. § 157 estates already vested at law on the death of George A. Alter without a will. ' ' 39 §156. Other Instruments. The mistake is equally- fatal, and for the same reasons, when it consists in execut- ing one will when the testator supposed he was executing another will, or some instrument for some other purpose, though it were originally prepared by or for him. There would seem to be little doubt but that these facts may be shown by extrinsic and even parol evidence. 40 § 157. Clauses and Words Erroneously Included. It may happen that a page, clause, or word is innocently in- serted in the executed draft of the will, without the knowledge and contrary to the wish of the testator. Clearly the matter so inserted is no part of the will, and should be excluded from the probate if it can be done. If the fact and nature of the mistake appear on the face of the instrument or are admitted, the case is not difficult. More liberty was allowed before the statutes required all wills to be in writing unless in special cases named. 41 § 158. English Cases. An important case under the English statute 1 Vic. c. 27 was Guardhouse v. Black- burn (1866), 42 in which there was an offer to show that the words "therein and," having the effect of requiring all legacies to be paid out of the personal estate, and thereby defeating several of them, were inserted in the codicil without the testatrix's knowledge or consent; and the evidence was excluded, on the ground that the whole will had to be in writing, and it was as easy to add to a will by striking out words as by putting them in, which latter all admit could not be done, and because it ap- peared that the testatrix had read the paper, and no sus- 39Alter's Appeal, supra. Sewell v. Slinglult (1881), 57 40 Canada's Appeal (1880), 47 Conn. Md. 537, Abbott p. 707; Hildreth 450; Barker v. Comins, 110 Mass. 477, v. Marshall (1893), 51 N. J. 488. See also: Nichols v. Nichols Eq. 241, 27 Atl. 465. (1814), 2 Phillim. 180, Abbott p. 270, 41 Pawcett v. Jones (1810), 3 Phill. Chaplin 253; Lister y. Smith (1863), Ecc. 434, 458. 3 Sw. & T. 282, Chaplin 250; 42 L. R. 1 P. & D. 108. § 159 WILLS. 94 picion attached to it. The court admitted that the court of probate must be satisfied that the testator knew and approved the contents of the will when he signed it, but that the fact that he executed it when of sound mind and intended it to operate as a will ought to be treated as sufficient proof that he knew and approved of the con- tents, unless suspicion should be attached to the partic- ular clause by its containing an unnatural bequest or one in favor of someone instrumental in preparing the will; and then the fact that the will had been duly read over to a competent testator or its contents brought to his notice in- any other way at the time of execution should be held in connection with the fact of execution to be conclusive evidence that he knew and approved of its contents. 43 This decision and the rules declared in it have been ap- proved in later cases; 44 but the more recent decisions in England have been more liberal in admitting parol proof, 45 and in a case in which the matter was extensively argued in the House of Lords, that court expressly re- fused to recognize any general rule to be applied to all cases. 46 Where the rejection of words results in changing the effect of those which remain, as by carrying the same property under another clause, the court would seldom allow it. 47 § 159. American Cases. I do not find much adjudica- tion on the matter in the United States. 48 Cases holding parol evidence incompetent to aid erroneous descriptions of legatees or property devised are frequently cited under 43 A residuary clause in a printed 46 Fulton v. Andrews (1876), L. E. 7 form executed by the testator without H. L. 448. reading or hearing it read was excluded 47 Rhodes v. Rhodes (1882), L. R. 7 on the affidavit of the scrivener. In App. Cas. 192, 198. Goods of Duane (1862), 2 Sw. & T. 48 Parol evidence excluded in Iddings 590, Abbott p. 265. V. Iddings (1821), 7 Serg. & R. (Pa.) 44Harter v. Harter (1873), L. R. S 111, 10 Am. Dec. 450; Dunham v. Aver- P. & D. 11. ill (1877), 45 Conn. 61, 29 Am. Rep. 46Morrell v. Morrell (1882), L. R. 7 642; Griscom v. Evans (1878), 40 N. P. D. 68; Boehm's Goods (1891), 16 J. L. (11 Vroom) 402, 29 Am. Rep. 251. r. 247; In re Gordon (1892), 17 P. See dictum In Couch v. Eastham 228; Goods of Oswald (1874), L. R. (1886), 27 W. Va. 796, 799; and see S P. & D. 162. note 50 Am. St. Rep. 279-294. 95 ERBOB, FBAUD AND UNDUE INFLUENCE. § 160 this head, but are entirely inapplicable. They are not cases in which the testator did not desire the words in- cluded, but where he was mistaken as to their application. Certainly no such errors could be corrected. 49 § 160. Clauses and Words Erroneously Omitted. If, on the other hand, a clause or word was erroneously omitted from the will as executed— if the amount of a bequest, 50 the description of the property, 61 or the name of the beneficiary, 62 was left blank— it cannot be supplied by parol. 63 If one name, description, or amount was given, parol evidence is not competent to show that some other was intended. 5 3a An unconditional devise or be- quest cannot be shown by parol to have been intended to be conditional, 64 nor is parol competent to show that a clause charging the devise with a trust was omitted by mistake. 66 That would be allowing parol to show what the statute requires to be in writing. "To assume such a jurisdiction would in effect be to repeal the statute of frauds in all cases where the devisor failed to comply with the statutes by mistake or accident, and to operate this repeal by admitting parol evidence of the intention of the devisor, which it was the very object of the statute to avoid." 56 Though it shall appear by extrinsic evi- dence that an accidental omission has changed the whole scope and tenor of the will, the instrument must be allowed probate as it was executed; it is not void. 67 49 See Kurtz v. Hibner (1870), 55 68 See also note' 50 Am. St. Eep. 283 111. 514, 10 Am. L. Reg. 93, 8 Am. Rep. et seq. 665; Whlteman v. Whiteman (1899), 63a See ante § 150, and post §437. 152 Ind. 263, 53 N. B. 225, 5 Prob. Rep. 54 See ante § 66. An.; Chambers v. Watson (1881), 56 65 Andreas v. Weller (1832), 3 N. Iowa 676, 10 N. W. 239, 60 Iowa 339, J. Eq. 604. 14 N. W. 336, 46 Am. Rep. 70; Sher- 66 Newburgh v. Newburgh (1820), 5 wood v. Sherwood (1878), 45 Wis. 357, Madd. Ch. 364, 1 M. & Sc. 352; Miller 30 Am. Rep. 757. And see post, § 513. v. Travers (1832), 21 B. C. L. (8 Blng. 50 Comstock v. Hadlyme (1830), 8 244) 524. "Admit this doctrine, and Conn. 254, 20 Am. Dec. 100 ; Everett v. you may as well repeal the statute re- Carr (1871), 59 Me. 325, 331. quiring wills to be in writing, at once. 61 Crooks v. Whitford (1882), 47 Witnesses will then make wills." Goode Mich. 283, 11 N. W. 159, and cases v. Goode (1856), 22 Mo. 518, 66 Am. cited. Dec. 630. 62 Hunt v. Hort (1791), 3 Brown's 57 Comstock v. Hadlyme (1830), 8 Ch. 311 ; Wallize v. Wallize (1866), 55 Conn. 254, 265, 20 Am. Dec. 100 ; Wall- Pa. St. 242. lze v. Wallize (1866), 55 Pa. St. 242. § 162 WILLS. 96 § 161. Omission of Provision for Child— Effect. There are statutes in most of the states enacting that any child of the testator, and the issue of any deceased child, not provided .for in the will nor during the lifetime of the testator, shall take as if no will had been made, unless it shall appear that the omission was intentional. The decisions on these statutes are not entirely in harmony, and the difference is to a considerable extent accounted for by the different terms of the statutes. 58 §162. What Is Provision and Who Are Children. Posthumous children are generally held entitled under these statutes. 69 Providing for children is generally held to be equivalent to mentioning them, and not that any substantial provision shall be made. Thus a gift of tes- tator's land in a county where he had none was held to be a provision, and it was immaterial whether he thought he had some there or not, as wills cannot be reformed or denied effect on account of mistakes of inducement. 593, § 163. Proof of Intention. In some states it is held that parol evidence of the testator's declarations is com- petent to show that the omission was intentional. 60 In others it is held that unless the intention to omit does appear on the face of the will the child or issue must be allowed a share as if the deceased had died intestate, and that extrinsic evidence to prove the intention to 68 See an extended note on these stat- 1037; Newman v. Waterman (1885), utes In 39 Am. Dec. 740-744, appended 63 Wis. 612, 23 N. W. 696, 53 Am. Rep. to Wilson v. Fosket. 310. 69 Van Wickle v. Van Wickle (1899), The Principal Case on this side of 59 N. J. Eq. 317, 44 Atl. 877. the question, or at least the one most 69a Callaghan's Estate (1898), 119 cited, is Wilson v. Fosket (1843), 47 Cal. 571, 575, 51 Pac. 860. See also Mass. (6 Mete.) 400, and see note to post § 386. same case in 39 Am. Dec. 736-744 ; fol- aoCoulam v. Doull (1890), 133 XT. S. lowed in Eamsdill v. Wentworth 216, affirming same case in 4 Utah 267, (1869), 101 Mass. 125, 106 Mass. 320; 9 Pac. 568; Lorleux v. Keller (1857), Buckley v. Gerard (1877), 123 Mass. 5 Iowa 196, 68 Am. Dec. 696; Whitte- 8. more v. Russell (1888), 80 Me. 297, 6 A Case for the Jury. The intention Am. St. Rep. 200, 14 Atl. 197 ; Stebbins' to omit has been held to be a question Estate (1892), 94 Mich. 304, 54 N. W. for the Jury though the will contained 159, 34 Am. St. Rep. 345 ; In re O'Con- a bequest of some keepsakes of no nor, 21 R. I. 465, 44 Atl. 591, 79 Am. value to the claimant. Stebbins Estate St. Rep. 814; In re Atwood (1896), 14 (1892), 94 Mich. 304, 54 N. W. 159, 34 Utah 1, 60 Am. St. Rep. 879, 45 Pac. Am. St. Rep. 345. 97 EBBOR, FRAUD, AND UNDUE INFLUENCE. §164 omit is not competent. 61 The indication of intention on the face of the will not to provide for the child or issue may be sufficient without an express statement of the intention, and even without mentioning the child at all, unless the statute otherwise provides. 62 The matters by which it has been claimed that an intention to omit appeared have naturally differed in each case. 63 The only safe course under these statutes is to state the inten- tion specifically and name each child. 64 § 164. Right to Probate. The question as to whether the child was forgotten is not one involved in allowing probate of the will. The will is not void because chil- dren were forgotten. An unconditional allowance of probate must be given as in all other cases of valid wills. The rights of the person claiming a distributive share of his ancestor's estate under these statutes is not con- cluded by the order admitting the will to probate. 65 61 Estate of Garraud (1868), 35 Cal. 336; Estate of Salmon (1895), 107 Cal. 614, 48 Am. St. Rep. 164, 40 Pac. 1030 ; Bradley v. Bradley (1857), 24 Mo. 311 ; Burns v. Allen (1893), 93 Tenn. 149, 23 S. W. Ill; Bower v. Bower (1892), 5 Wash. 225, 31 Pac. 598; Hill v. Hill (1893), 7 Wash. 409, 35 Pac. 360. The Wisconsin statute seems to put the burden on the claimant to show that the failure to provide for him was unintentional. Moon v. Estate of Ev- ans (1887), 69 Wis. 667, 35 N. W. 20. See also as to the Michigan statute : Estate of Stebbins (1892), 94 Mich. 304, 54 N. W. 159, 34 Am. St. Rep. 345. Why not Parol Proof. "These pro- visions exhibit the intention of the leg- islature, not only to adhere to the safe- guards which the common law provided as a protection against fraud, but rather to increase and strengthen them by new enactments. With this in view, nothing short of an explicit enactment, leaving no room for construction, would lead us to the conclusion that the leg- islature intended to substitute for the written will, as the exponent of the testator's intentions, the loose and al- ways uncertain evidence of acts and declarations resting in parol, and which 7 are liable to be perverted by the frail memories, obtuse understandings, or fraudulent motives of persons called to testify after the death of the testator." Estate of Garraud (1868), 35 Cal. 336; quoted in Estate of Salmon (1895), 107 Cal. 614. 62 As the Missouri statute seems to : Wetherall v. Harris (1872), 51 Mo. 65. 63 What Shows Intention. See the following decisions as to what indicates an intention to omit : Estate of Sal- mon (1895), 107 Cal. 614, 48 Am. St. Rep. 164, 40 Pac. 1030 ; Wilder v. Goss (1817), 14 Mass. 357 ; Tucker v. Boston (1836), 35 Mass. (18 Pick.) 162; Case v. Young (1859), 3 Minn. 209; Pounds v. Dale (1871), 48 Mo. 270; Gage v. Gage (1854), 29 N. Ham. 533; McMII- len's Estate (1903), — N. Mex. — 71 Pac. 1083; Gerrish v. Gerrish (1880), 8 Ore. 351, 34 Am. Rep. 585. See re- view of these and other cases in note to Wilson v. Posket, 39 Am. Dec. 736- 744. 64 As was done in Clarkson v. Clark- son (1871), 71 Ky. (8 Bush) 655. The child intentionally omitted can claim nothing under these statutes. Gerrish v. Gerrish (1880), 8 Ore. 351, 34 Am. Rep. 585. esLorieux v. Keller (1857), 5 Iowa § 165 WILLS. 98 § 165. Provisions Induced by Mistakes. Neither the will nor any part of it is affected hy any mistake of law or fact which induced the testator to make it, and the courts cannot amend or modify it so as to conform to what they imagine the testator would have done but for such mistake. For example, the will cannot be denied probate nor any of its provisions limited or enlarged in effect because the testator did not understand their legal effect nor truly appreciate the proportions in which his property would be thereby distributed; 66 nor because he would or might have made a different will, if he had not mistakenly supposed that the child not provided for was dead, 67 or not related to him, 68 or was in league against him, immoral, unfilial, or illegitimate; 69 nor because of erroneously supposing the principal beneficiary to be the lawful spouse of the testator, and that no duty was owing to any other, the fact being that either or both had a spouse of a prior marriage living and had no valid divorce. 70 So if a gift to children was induced by a 196, 68 Am. Dec. 696 ; Doane v. Lake marked out ? This consequence, I ap- (1850), 32 Me. 268, 52 Am. Dec. 654; prehend, will not follow by any rules Schneider v. Koester (1874), 54 Mo. of law or logic. For then it must be 500. Contra : Newman v. Waterman supposed that every man who has so in (1885), 63 Wis. 612, 23 N. W. 696, 53 view a particular end, knows also and Am. Rep. 310. is sure to employ the most effectual 66 Jackson v. Payne (1859), 59 Ky. means to carry It into execution ; which ( 2 Mete. ) 567 ; Barker v. Comins is paying too great a compliment to (1872), 110 Mass. 477, 488; Wood v. human wisdom." From the opinion of Carpenter (1901), 166 Mo. 465, 485, 66 Sir Wm. Blackstone In Perrin v. Blake S. W. 172. (1771), Hargrave's Law Tracts 489, Why Not Reform Wills. "Will it 509, 10 Bng. Eul. Cas. 689. To the same be said that when the testator's intent effect see Young's Estate (.1899), 123 i3 manifest, the law will supply the Cal. 337, 343, 55 Pac. 1011. proper means to carry it into exeeu- 67 Gifford v. Dyer (1852), 2 E. I. 99, tion, though he may have used im- 57 Am. Dec. 708, Mechem 31. proper ones? This would be turning 68 Young v. Mallory (1900), 110 Ga. every devise into an executory trust, 10, 35 S. E. 278. and would be arming every court of law 69 See ante § 131. with more than the jurisdiction of a 70 Wenning v. Teeple (1895), 144 court of equity — a power to frame a Ind. 189, 41 N. E. 600; Donnely Will conveyance for the testator, instead of (1885), 68 Iowa 126, 26 N. W. 23; construing that which he has already Monroe v. Barclay (1867), 17 Ohio St. framed. Will it be said, that, because 302, 93 Am. Dec. 620, Mechem 25 ; Ken- the means marked out by the testator nell v. Abbott (1799), 4 Ves. 802, Ab- will not answer the end proposed, bott p. 258; Dries's Will (1903), — therefore he intended to use other N. J. Eq. — . 55 Atl. 814. means and not those which he has 99 ERROR, FRAUD, AND UNDUE INFLUENCE. § X67 supposition that they had become legitimate by the mar- riage of their parents. 7081 §166. Reformation in Equity— No Consideration. 71 To any demand for reformation of a will in equity, so as to correct mistakes and make it express the testator's wish, a sufficient answer in any case would seem to be found in the fact that an action to reform any written instrument is in the nature of an action for specific per- formance; and a will being purely voluntary, there is no consideration to support the action. Equity will not in- terpose to perfect any imperfect voluntary transfer. 7 ^ § 167. Probate Conclusive on Validity. But there is another and a more serious obstacle in the way of maintaining such actions. The jurisdiction of the pro- bate courts is exclusive; wills can be probated only in the courts of probate; which prevents any resort to a court of chancery before the will is probated. After the instrument has been admitted to or denied probate by the probate court, the judgment of the probate court admitting or rejecting it is a final adjudication in rem, that the instrument is in whole, in part, or in no part, the will of the deceased. While that judgment stands it is conclusive in every court within the jurisdiction that the instrument rejected is not the will, and that the instrument received, or the part admitted to probate, is the will and the whole will of the deceased, and that the words of the instrument as admitted are the exact words of the testator. 73 This is not so in Michigan, where it is held that probate courts have no power to . vacate their decrees. Eesort to equity is allowed of ne- cessity under such rulings. 74 §168. Construction not Determined by Probate. But the judgment that the instrument is the testator's roa Plant in re (1899), 47 Wkly. Wis. 357, 30 Am. Rep. 757; Allen v. Kep 183 McPherson (1847), 1 H. L. Cas. 191, 71 See note 66 Am. Dec. 633-637. 11 Jur. 785 ; Ellis v. Davis (1883), 109 72 See notes 65 Am. St. Eep. 521, 50 TJ. S. 485 ; 1 Bigelow's Jarman *28. Am. St. Rep. 283. 74 Smith v. Boyd (1901), 127 Mich. 73 Sherwood v. Sherwood (1878), 45 417, 86 N. W. 953. § 169 WILLS. 100 will, which is all the probate court settles, leaves the intention of the testator still to be determined; and when' a court of equity is afterward asked to enforce any claim under the will, it gathers the intention from the whole will, read in the light of the testator's surroundings. From these a legacy of fifteen hundred has been found to mean a legacy of fifteen hundred dollars. 75 An inten- tion to give enough to make the legatee's fortune £10,000 has been found in the following language: "I give to my daughter Mary £3,500, which, with £6,000 she is entitled to by my marriage settlement, and £500 from her father-in-law, make up £10,000, which I design she shall have for her fortune." 76 The fact was that the marriage settlement gave Mary only £5,000. The court held that the executors must give her enough to make her whole fortune £10,000. Such decisions have been made in a number of cases; 77 but it will be seen that these are only decisions construing the terms of the will. From these decisions the rule has been extracted, that a provision in a will, induced by mistake, can be corrected only when the fact and nature of the error, and what the will would have been but for such error, all appear on the face of the will. 2. FKATJD. § 169. Nature. In a broad sense a will induced by force or fear may be said to be induced by fraud; but in its more accurate definition, fraud does not involve coercion. It is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. 78 § 170. Effect. Unlike mistake, fraud vitiates as much 75 Snyder v. Warbasse (1857), 3 competent in chancery to show that Stockt. (11 N. J. Eq.) 463. two wills of different dates and signed 76Milner v. Milner (1748), 1 Ves. Sr. by different witnesses and both admit- 106. ted to probate were really duplicates, 77 See Jordan v. Fortescue (1847), on an issue as to whether the legatees 10 Beav. 259 ; Ouseley v. Anstruther, were entitled to double legacies. Hub- 10 Beav. 459; and other cases cited in bard v. Alexander (1876), L. R. 3 Ch. 1 Bigelow's Jarman *495. But see Jack- Div. 738. son v. Payne (1859), 59 Ky. (2 Mete.) 78 Bigelow on Fraud *571 ; Moore v. 567; Barker v. Comins (1872), 110 Heineke (1898), 119 Ala. 627, 638, 24 Mass. 477. Parol evidence was held South. 374. 101 EKBOK, FBATJD, AND UNDUK IN! 170 of the will as is affected by it, whether the imposition relates to the identity and contents of the instrument or to the inducement which moves the testator to make it. If one instrument was fraudulently procured to be exe- cuted when the testator supposed he was executing an- other; 79 if any provision was inserted fraudulently in a will prepared at his request and executed by him; 80 if he was induced to make the will or make or modify any provision in it by reason of any deception practiced upon him; 81 or if he was by like means induced to disinherit any heir, 82 or revoke a bequest in favor of anyone in any 79 Doe ex dem Small v. Allen (1799), 8 Term 147, 8 Dura. & E. 147, Chaplin 98. 80Atter v. Atkinson (1869), L. B. 1 P & D. 665 ; Wombacher v. Barthelme (1902), 194 111. 425, 62 N. B. 800; Eollwagen v. Rollwagen (1876), 63 N. Y. 504, Mechem 22, Reeves 11 ; Harri- son V. Eowan (1820), 3 Wash. C. C. 580, Fed. Cas. 6141, Abbott p. 227. 81 Evidence to show that children provided for by a will were supposed by the testator to be his own, and that such belief was induced by the false representations of their mother, with whom the testator lived in illicit rela- tions, was held competent to show that the bequests were procured by fraud. Bequests induced by such impositions were deemed void. Davis v. Calvert (1833), 5 Gill & J. (Md.) 289, 25 Am. Dec. 282; Ex parte Wallop (1792), 4 Brown C. C. 90 ; Clark v. Fisher (1828), 1 Paige Ch. (N. T.) 171, 19 Am. Dec. 402. Assuming False Character. "Nei- ther would I have it understood, that if a testator, in consequence of sup- posed affectionate conduct of his wife, being deceived by her, gives her a leg- acy, as to his chaste wife, evidence of her violation of her marriage vow could be given against that. It would open too wide a field. But this decision steers clear of that point. This is a legacy to her supposed husband and under that name. He was the husband of an- other person. He had certainly done this lady the grossest injury a man can do to a woman ; and I am called upon now to determine whether the law of England will permit this legacy to be claimed by him. Under the circum- stances I am warranted to make a prec- edent ; and to determine, that, wherever a legacy is given to a person under a particular character, which he has falsely assumed, and which alone can be supposed the motive of the boun- ty, the law will not permit him to avail himself of it ; and therefore he cannot demand his legacy." Kennell v. Abbott (1799), 4 Ves. 802, Abbott p. 258. Distinguished in Eishton v. Cobb (1839), 5 Mylne & C. 145, Abbott p. 261. And see Moore v. Heineke (1898), 119 Ala. 627, 24 South. 374; Meluish v. Milton (1876), 3 Ch. Div. 27; Don- nely Will (1885), 68 Iowa 126, 26 N. W. 23. 82 Slandering Children to Induce "Will. A disinherited daughter contested her father's will on the ground that he was induced to disinherit her by state- ments of her brother, intentionally mis- representing her as counselling and aid- ing the brother's wife to defeat his suit for divorce. The court charged the jury that if they should find these to be the facts, a case of fraud was made out which would avoid the will. Verdict and judgment against the will were sustained on appeal. Matter of Budlong (1891), 126 N. Y. 423, 27 N. E. 945, Chaplin 108. Compare Haines v. Hay- den (1893), 95 Mich. 332, 54 N. W. 911, 35 Am. St. Eep. 566 ; Trumbell v. Gibbons (1849), 22 N. J. L. 117, 51 Am. Dec. 253. And see note 31 Am. St. Eep. 680. A will favoring a daughter, and drawn from memoranda in her hand, was held void, it appearing that she had poisoned the mind of the testatrix, § 171 WILLS. 102 duly estecuted prior will: 88 in none of these cases can the will be given effect as to any provision so fraudulently procured. But if a part of the will was induced by fraud, and a part of it would have been the same if no fraud had been practiced, that part of the will which was not induced by the fraud must be allowed and the rest rejected. 84 § 171. Essentials. Fraud may take so many forms and be practiced under so various circumstances that it is impossible to enumerate the impositions which will avoid a will. New schemes have been invented ever since Jacob obtained the blessing Isaac meant for Esau. "What- ever the form, the will or provision induced by the impo- sition is void. It does not matter that the person bene- fited by the provision was not a party to the fraud. 85 But unless there was an intention to defraud there can be no fraud; 86 the intent is an essential element. But it need not have been the original intention. 87 And although the testator was deceived and deception was intended, the will or provision is valid unless the deception induced or affected it. 88 For example, the testator having de- cided not to give any of his property to two girls because they had espoused the Roman Catholic faith, his will cutting them off was not avoided by fraudulent repre- to a belief that the disinherited son 84 Allen v. McPherson (1847), 1 H. had defrauded her. Tyler v. Gardiner L. Cas. 191, 11 Jur. 785 ; Matter of (1866), 35 N. Y. 559, Chaplin 173. Vanderveer (1869), 20 N. J. Eq. 463; Deception as to Law. A will drawn Ogden v. Greenleaf (1887), 143 Mass. hy the testatrix's brother, who was a 349; Florey v. Florey (1854), 24 Ala. lawyer enjoying her entire confidence, 241; In re Welsh (1849), 1 Redf. (N. and leaving nearly all her property to Y.) 238, 247; Burger v. Hill (1850), 1 him and his brothers to the exclusion Brad. (N. Y.) 360, 373. See also post of testatrix's grandson, was held void § 184. on proof that a clause charging a trust 86 Coghill v. Kennedy (1898), 119 on the devise to the brothers was omit- Ala. 641, 24 South. 459 ; Brown v. ted on representations by the lawyer Moore (1834), 14 Tenn. (6 Terg.) 272. to the testatrix that such a clause 86 Rishton v. Cobb (1834), 5 Mylne would make the devise void. Lyon v. & C. 145, Abbott p. 261. Dada (1896), 111 Mich. 340, 69 N. W. 87 Gilpatrick v. Glidden (1888), 81 654. Me. 137, 16 Atl. 464. 83 Smith v. Boyd (1901), 127 Mich. 88 Meluish v. Milton (1876), 3 Ch. 417, 86 N. W. 953; Allen v. McPher- Div. 27; Taylor ▼. Kelly (1857), 31 son (1847), 1 H. L. Cas. 191, 11 Jur. Ala. 59, 68 Am. Dec. 150. 785. 103 ERROR, FRAUD, AND UNDUE INFLUENCE. § 172 sentations made to him concerning them with a purpose to induce him to give them nothing, though he believed the statements. 89 § 172. Jurisdiction to Declare Will Void for Fraud. One of the questions to be determined when the will is offered for probate is whether it speaks the will of the testator; and if the court of probate finds that the execu- tion of the will, or the testator's approval of a part of it, was obtained by fraud, it may and should refuse probate of so much as was affected by the fraud. But after the court of probate has approved and allowed the will, it cannot be declared void in any other court because of the fraud, either as to realty or as to personalty, though the fraud was not discovered till the will had been allowed probate and the estate completely settled. The remedy is not in a court of equity to avoid the will for the fraud, but in the court that allowed the probate to have the decree allowing probate opened. 90 This is the general rule. But in Michigan it is held that the probate courts have no power to vacate their decrees even on the ground that they were obtained by fraud, 91 This decision com- pelled the court to hold that a bill in equity might be 89 Stewart v. Jordan (1893), 50 N. (1847), L. E. 1 H. L. Cas. 191, 11 Jur. J Eq. 733, 26 Atl. 706. 785 ; 1 Phil. Ch. 133, 5 Beav. 469 ; Me- A bequest in favor of the mulatto luish v. Milton (1876), L. E. 3 Ch. Div. child of a white man's white house- 27. keeper was held valid though she had United States — Ellis v. Davis (1883), . induced him to believe he was its fath- 109 U. S. 485. er. "The truth is that the old man, Massachusetts — Walcott v. Walcott being childless by his wife, took a (1885), 140 Mass. 194. strange fancy to the child of his house- Missouri — Lyne v. Guardian (1823), keeper ; and whether it was his or not, 1 Mo. 410, 13 Am. Dec. 509. he had a father's love for it, and our New York— Post v. Mason (1883), 91 law imposes no prohibition upon a man N. Y. 539, 43 Am. Eep. 689, Chaplin preventing him from bestowing his 203. property upon the object of his affec- North Carolina — Blue v. Patterson tion." Howell v. Troutman (1860), 8 (1836), 21 N. Car. (1 Dev. & Bat. Eq.) Jones L. (N. Car.) 304, Abbott p. 263. 457. A will induced by fraudulent repre- Oklahoma — Ward v. Board of Corn's sentations was held ratified by preser- (1902), — Okl. — , 70 Pac. 378. vation for many years after discovery Tennessee — Townsend v. Townsend by the testator that he had been de- (1867), 44 Tenn. (4 Cold.) 70, 94 Am. ceived. Earp v. Edgington (1901), 107 Dec. 185. Tenn. 23, 38, 64 S. W. 40. »i Corby v. Durfee (1893), 96 Mich. so England— Allen v. McPherson 11, 55 N. W. 386. § 173 WILLS. 104 maintained to avoid the decree, as there was no other remedy. 92 § 173. Remedies of Persons Prejudiced by the Fraud. The person deprived of the testator's bounty by the fraud can maintain no action in tort against the wrongdoer, for there has been no injury which the law can recognize. The mere possibility of receiving a gift is too shadowy and evanescent to be dealt with as a property right. 93 But when one makes a promise to perform the wishes of another having property to dispose of, if such person will allow a testament or devise already made in favor of the promisor to stand, 94 or will devise or be- queath the property to him, or allow it to descend to him as heir, 95 or if by his silence he induces the testator to believe that he will do so, 96 a court of equity will impress the property in his hands with a trust ex maleficio in favor of the person or object the deceased would other- wise have benefited. It may be enforced as a con- structive trust on parol proof, though the design to repu- diate the trust was not formed till after the will was made. 97 If the devise or bequest was to several on the promise of part in behalf of all that the trust would be executed, those who made no promise cannot accept the bequest or devise and repudiate the trust. 98 An action of assumpsit by the person to be benefited against the person making the promise to the testator has been sus- tained at law. 99 92 Smith v. Boyd ( 1901 ) , 127 Mich, which a valuable review of numerous 417, 86 N. W. 953. A limited jurisdic- cases will he found; Hooker v. Axford tion in chancery is given in such cases (1876), 33 Mich. 453. by statute in Alabama. Lyons v. Camp- 96 Russell v. Jackson (1852), 10 hell (1889), 88 Ala. 462, 7 South. 250. Hare (44 Bng. Ch.), 204 ; Byrn v. God- 93 Hutchins v. Hutchins (1845), 7 frey (1798), 4 Ves. 6, 10; Paine v. Hill (N. T.), 104. Hall (1812), 18 Ves. 475. 94 Eeech v. Kennegal (1748), 1 Ves. 97 Gilpatrick v. Glidden, supra; Sr. 123, Amb. 67, 1 Wils. 227 ; Barrow Hooker v. Axford, supra. v Greenough (1796), 3 Ves. Jr. 152. 98 Hooker v. Axford (1876), 33 Mich. 95 Stickland v. Aldridge (1804), 9 453 ; Amherst College v. Eitch (1897), Ves. 516; Amherst College v. Eitch 151 N. Y. 282, 328, 37 L. E. A. 305, (1897), 151 N. T. 282, 37 L. E. A. 305, 323, 45 N. E. 876. 45 N. E. 876; Gilpatrick v. Glidden 99 Eookwood's Case (1690), Croke (1888), 81 Me. 137, 16 Atl. 464, in Eliz. 164. 105 ERROR, FRAUD, AND UNDUE INFLUENCE. § 174 §174. Evidence to Establish Fraud. When courts have declared that mistakes as to the contents of wills, or as to matters of law or fact inducing the execution of them, cannot be proved by parol or extrinsic evidence, they have usually been careful to say that such proof is always competent to establish fraud. The declarations of the deceased and all the circumstances of the case are competent for this purpose. 1 And although fraud is never to be presumed, yet it is not necessary to show it by any direct or positive testimony. Fraud most com- monly veils itself in mystery; and it is only by circum- stances that it can generally be detected and brought to light. 2 If the testator was blind, or from any other cause unable to read the will, or if he was old or infirm, or for any other reason liable to be imposed upon, 3 and espe- cially if the dispositions are disproportionate in favor of one in a position enabling him to deceive the testator, these facts alone will often be held sufficient to make out a case of fraud unless clearly explained. 4 Under such cir- cumstances the onus is on the proponent to show that the deceased knew the contents of the instrument when it was executed. 8 3. UNDUE INFLUENCED §175. What Constitutes. To be undue influence in the eye of the law there must be coercion. The wish of 1 Matter of Keleman (1891), 126 N. mother, was denied probate, the court T. 73, 26 N. B. 968 ; Atter v. Atkinson saying : "Whether the contents of the (1869), L. R. 1 P. & D. 665; Small v. alleged will were known to Mrs. Simp- Allen (1799), 8 Term 147, 8 Durn. & son, and whether they expressed her B. 147, Chaplin 98 ; Allen v. McPher- intentions, depend wholly on the testl- son (1847), 1 H. L. Cas. 191, 11 Jur. mony of the son in whose handwriting 785. See also post §§ 186-191. the instrument is. It is impossible for 2 Harrison v. Rowan (1820), 3 Wash, us to believe his account of the inter- C. C. 580, Fed. Cas. No. 6,141, Abbott views between himself and Mrs. Simp- p. 227. son resulting in the execution of the 3 Rollwagen v. Rollwagen (1876), 63 instrument." Jones v. Simpson (1898), N. Y. 504, Mechem 22, Reeves 11. 171 Mass. 474, 50 N. B. 940. 4 Tyler v. Gardiner (1866), 35 N. Y. 6 Lyons v. Campbell (1889), 88 Ala. 559, Chaplin 173 ; Lyon v. Dada (1896), 462, 7 South. 250; Kelly v. Settegast 111 Mich. 340, 69 N. W. 654; Hildreth (1887), 68 Texas, 13, 2 S. W. 870; V- Marshall (1893), 51 N. J. Bq. 24i, Montague v. Allan (1884), 78 Va. 592, 27 Atl. 465. 40 Am. Rep. 384. A will, giving most of the estate to 6 See extended note 31 Am. St. Rep. the son who drew it and not made 670-691 ; 16 Am. Dec. 257-263. known till after the death of the § 176 WILLS. 106 the testator must be subdued and displaced by some influ- ence which he has not the power to resist though it has not convinced his judgment nor changed his desire. The coercion may consist of actual violence, of threats ex- pressed or implied, or of harassing importunity. The testator may be so feeble that a very little pressure will overcome his wish and substitute that of another. Merely talking to him may so fatigue him that he would do anything for the sake of peace and quiet. A will pro- cured by such means is void because of the undue influ- ence. 7 § 176. Same— Comparison of Powers. "What con- stitutes undue influence can never be precisely defined. It must necessarily depend, in each case, on the means of coercion or influence possessed by one party over the other; upon the power, authority, or control of the one— the age, the sex, the temper, the mental and physical condition and dependence of the other. Whatever de- stroys the free agency of the testator constitutes undue influence. Whether that object be effected by physical force, or mental coercion, by threats which occasion fear, or by importunity which the testator is too weak to resist, or which extorts compliance, in the hope of peace, is immaterial. In considering the question of undue influ- ence, therefore, it becomes essential to ascertain, as far as practicable, the power of coercion upon the one hand, the liability to its influence upon the other." 8 "It may be exercised through threats, fraud, or impor- tunity, or by the silent resistless power which the strong often exercise over the weak and infirm; but, however exercised, it must, in order to avoid the will, destroy the free agency of the testator at the time it was made, so 7 Wingrove v. Wingrove (1885), 11 253; Wise v. Poote (1883), 81 Ky. 10; Probate Div. (Eng.), 81, Mechem 29, Mooney v. Olsen (1879), 22 Kan. 69. Abbott p. 256; Smith v. Henline But see Wlttman v. Goodhand (1866), (1898), 174 111. 184, 51 N. E. 227, 4 26 Md. 95; Campbell v. Carlisle (1901), rrob. Eep. An. 61 ; Herster v. Herster 162 Mo. 634, 63 S. W. 701. (1888), 122 Pa. St. 239, 16 Atl. 342, 8 Moore's Exrs. v. Blauvelt (1862), S Am. St. Rep. 95 ; Robinson v. Robin- 15 N. J. Eq. 368. son (1902), 203 Pa. St. 400, 53 Atl. 107 EEEOB, FRAUD, AND UNDUE INFLUENCE. § 177 that the instrument, in effect, expresses the mind and intent of someone else, and not his own." 9 § 177. Influence of Confidence in or Affection for Wife. ' 'If a wife, by her virtues, has gained such an ascendency- over her husband, and so riveted his affections that her good pleasure is a law to him, such an influence can never be a reason for impeaching a will in her favor, even to the exclnsion of the residue of his family." 10 "We do 8 Schmidt v. Schmidt (1891), 47 Minn. 451, 50 N. W. 598; Bbgga v. Boggs (1901), 62 Neb. 274, 87 N. W. 39. An Illustration. "In deciding facts which are suitable for the jury tri- bunal, I feel a disposition to be some- what influenced by what I think an in- telligent and fair-minded jury, properly instructed, would be likely to do upon the same testimony. Certain important facts appear to me to be unquestion- able, namely: That for Miss Gilkey, the beneficiary under the destroyed codicil, the testator had the fondest and warmest affection. Its depth and strength are disclosed by a continuous stream of evidence in his letters pro- duced, which I think could never have been fully appreciated, had it come merely from the mouth of witnesses. He spoke it, wrote it, acted it. * * * He resolutely adhered to the codicil till his last sickness, at least. Now, after he had lain a month on his death- bed, a very aged man, weighed down and weakened by disease, so far into the sunset of his life that the shadows of its twilight were fast settling over his understanding, surrounded by per- sons naturally disturbed by the exist- ence of the codicil, with no notice to the beneficiary, with no after mention of it to her, the affection between her and him lasting till his last sands of life ran out, — he destroyed the codicil. What cause was there for this change which so suddenly came over his mind? I think the inference is irresistible that the act was caused by another or others, whether the influence exerted over his mind was an undue influence or not. What his strength did, his weakness would not have repudiated. How much truth in the situation script- urally described : 'Verily, verily, I say unto you, when thou wast young, thou girdest thyself, and walkest whither thou wouldat; hut when thou shalt be old, thou shalt stretch forth thy hands, and another shall gird thee and carry thee where thou wouldst not !' " Rich v. Gilkey (1881), 73 Me. 595, Mechem 61, Beeves 43. A will obtained from a bed-ridden man of 81 by a threat to desert him was held to be the result of undue in- fluence, though he expressed his grati- tude to the beneficiaries afterwards. Sickles's Will (1901), 63 N. J. Eq. 233, 50 Atl. 577. io An Illustration. The above is quoted from the opinion of the court, by Mellen C. J., in Small v. Small (1826), 4 Me. 220, 16 Am. Dec. 253, in which the daughter contesting the will was disinherited in favor of the second wife, who appealed from a decree deny- ing the will probate. The evidence showed "that prior to the testator's marriage to the appellant he was re- markably fond of his daughter Mary ; but that afterward there was not only a coolness, but a great degree of aliena- tion ; his affections were withdrawn from her, and in several Instances he treated her with extreme harshness and severity. It appears also that the mother-in-law said she could not live with her ; and that she ought not to share in the estate equally with the rest, as she had been so troublesome. It is also in proof that the husband often said his wife was the best woman in the country ; and that such an angel of a woman could not do wrong." The decree was reversed and the will ap- proved and allowed. To the same ef- fect see: Shell's Estate (1900), 28 Colo. 167, 63 Pac. 413, 53 L. R. A. 387, 6 Pro. R. A. 293 ; Gardner v. Gardner (1839), 22 Wend. (N. Y.) 526, 34 Am. Dec. 340; Barnes v. Barnes (1876), 66 Me. 286; Hughes v. Murtha (1880), 32 §178 WILLS. 108 not know of any rule of law or of morals which makes it unlawful or improper for a wife to use her wifely influ- ence for her own benefit or that of others, unless she acts fraudulently, or extorts benefits from her husband when he is not in a condition to exercise his faculties as a free agent." 11 § 178. Influence of Children. The same is true of the influence of a child by reason of the affection for him or confidence reposed in him by his parent. 12 A disposi- tion to a son, who had taken part, shared confidence, and lived with his father, after the separation of the father from the mother and other children, was attacked on the ground of undue influence thereby acquired and exer- cised by the son over the father; but the disposition was sustained; the court saying, "That the relation between this father and his several children during the score of N J. Eq. 288; Rankin v. Rankin (1875), 61 Mo. 295; Will of Nelson (1888), 39 Minn. 204, 39 N. W. 143; Armstrong v. Armstrong (1885), 63 Wis. 162, 23 N. W. 407 ; Deck v. Deck (1900), 106 Wis. 470, 82 N. W. 293. 11 Latham v. Udell (1878), 38 Mich. 238. To same effect : Perkins v. Perk- ins (1902), 116 Iowa 253, 90 N. W. 55 ; Boggs v. Boggs (1901), 62 Neb. 274, 87 N. W. 39. 12 Thompson v. Ish (1889), 99 Mo. 160, 12 S. W. 510, 17 Am. St. 552; Miller v. Miller (1817), 3 Serg. & R. (Pa.) 267, 8 Am. Dec. 651. An Illustration. A will by a father 70 years old and afflicted with disease and infirmity, devising his whole estate to his wife for life with remainder to his son William, with whom he lived, to the exclusion of all his other children, was attacked on the ground of mental unsoundness and un- due influence. The court sustained the will, saying : "Many witnesses detailed conversations had with William Elliott, the son of the testator, which evince much anxiety on his part, to secure to himself the property of his father. » * * It was also shown that for some time before his death his son William managed his affairs for him, and that he sometimes declined trans- acting business with those who visited him, and referred them to his son. Un- der these circumstances, it may be readily believed that the son's influ- ence was not inconsiderable with his father. It is moreover shown that the testator was illiterate. He declared to one of the witnesses he could not write. Hence, there Is great reason, at his ad- vanced age, to rely on the assistance of his son in doing business, and it would be very natural for him to yield his assent to almost every proposition, in relation to business, that his son would make. But there is no proof that Will- iam Elliott junior exercised any influ- ence which the ascendency he had ac- quired rendered possible, in controlling his father and inducing him to dispose of his property by will contrary to his settled inclination and judgment. A weak mind, if left to itself, may make a will which we would not disturb, but which would be set aside, if it were shown that the thoughts and arrange- ments of such a mind were operated upon by the Influence of a child, who thereby promoted his interest at the expense of his brothers and sisters. But such undue and improper influence must be exercised and proved. In this case it has not been done. * * * The testator complained that his chil- dren, except William, had forsaken him." Elliott's Will (1829), 25 Ky. 109 ERROR, FRAUD, AND UNDUE INFLUENCE. § 179 years preceding his death naturally inclined him towards the one and against the others is evident, and to have been expected. It would have been strange if such a result had not followed; but such partiality towards the one, and the influence resulting therefrom, are not only natural, but just and reasonable, and come far short of presenting the undue influence which the law denounces. Eight or wrong, it is to be expected that a parent will favor the child who stands by him, and give to him rather than to others." 13 § 179. Influence of Kind Treatment and Services. The same is true of the effect of a place acquired in the regard and affections of the testator by friendly offices, kind and considerate treatment. That these may have had powerful influence on the testator, and in fact may have caused him to make the will as he did, shows that the writing expresses the will of the testator rather than the contrary. 14 § 180. Influence of Hatred, Anger, and Prejudices. As with love, so with hatred and aversion— the character of the testament may be thereby entirely controlled; but the court cannot inquire as to the motive unless it amount to an insane delusion. If the will expresses the testator's desire it must be sustained, though the testator disin- (2 J. J. Marshall) 340. To same ef- An Illustration. "As to the argu- fect compare Tyler v. Gardiner 11866), ment derived from the influence ac- 35 N. Y. 559, Chaplin 173 ; Aylward v. quired over the testator by kind offices, Briggs (1899), 145 Mo. 604, 47 S. W. that alone can never be a good ground 510; Furlong v. Carraher (1899), 108 for setting aside a will, unconnected Iowa 492, 79 N. W. 277. with any fraud or contrivance. So far 13 Mackall v. Mackall (1890), 135 U. as that went in the present case, I con- S. 167, 172, 10 S. Ct. 705. See also sider it creditable to Williamson and Butter's Will (1901), 110 Wis. 70, 85 his family. They did take good care N. W. 678. of these old people, and if that circum- i4McCulloch v. Campbell (1887), 49 stance has had, as it no doubt had, an Ark. 367, 5 S. W. 590 ; Bush v. Lisle influence on the testator's mind in mak- (1889), 89 Ky. 393, 12 S. W. 762, ing this will, it was lawful and proper." Chaplin 103; Goodbar v. Lidikey Lowe v. Williamson (1838), 2 N. J. (1893), 136 Ind. 1, 43 Am. St. 296, 35 Eq. (1 Green) 82; Campbell v. Carlisle N. E. 691; Riley v. Sherwood (1898), (1901), 162 Mo. 634, 63 S. W- 701. 144 Mo. 354, 45 S. W. 1077, 3 Prob. And see notes 16 Am. Dec. 259 ; 31 Am. Rep. An. 519 ; Towson v. Moore (1897), St. Rep. 676. 11 App. D. C 377 ; Roberts v. Clemens (1902), 202 Pa. St. 198, 51 Atl. 758. §181 WILLS. ' HO herited some because of a dislike fostered and encour- aged by the beneficiaries under the will. 18 § 181. Influence of Flattery. Swinburne said ' ' Neither is it altogether unlawful for a man, even with fair and flattering speeches to move the testator," but he inti- mated that the will would be void if the flatteries were immoderate, the legacy great, and the testator a person of weak judgment and easily persuaded. 16 Similar state- ments obiter are frequently made by the courts; 17 but I have not found a decision refusing a will probate on the ground that the testator was induced to make it by sweet speeches made with the design of procuring the will. 17a § 182. Influence of Illicit Relations. 18 Wills in favor of mistresses have been frequently attacked on the ground of the immoral influence which the relation gives the mistress over her paramour; but the courts are uniform in holding that this unlawful influence will not avoid a will which expresses the testator's desire. "It has often happened, and will happen again, that a mistress will so captivate the affections of her paramour that he shall give her his whole estate, to the exclusion of his lawful wife and children. Such an act all would condemn, and concur in denouncing as immoral and improper the influ- ence which had produced it; but if it be done under the influence of affection merely, however unworthy the object may be, such wills have been, and must be, sup- is Trumbell v. Gibbons (1849), 22 N. tionate in manner and speech, J. L. 117; Salter v. Ely (1899), 58 N. and often brought her fruits and J. Bq. 581, 43 Atl. 1098. And see note other delicacies which she liked. 31 Am. St. Rep. 680. Meanwhile, her '" opinion and feel- 16 Swinburne on Wills, 478. ings concerning him changed entirely ; 17 See Schofleld v. Walker (1885), and before he left the city, she made a 58 Mich. 96, 106, 24 N. W. 624 ; will giving a large part of her property Stewart's Succession (1899), 51 La. to his wife. The will was attacked for An. 1553, 26 So. 460. undue influence and a verdict found for 17a An Illustration. A woman had the contestants on the evidence above a considerable dislike for one of her recited. The judgment thereon was re- sons-in-law ; but after she was over 75 versed on appeal for want of evidence years old he visited her and made his to support the verdict. Eiley v. Sher- headquarters at her house while on wood (1898), 144 Mo. 354, 45 S. W. business in the city where she lived. 1077, 3 Prob. Rep. An. 519. While there he showed her consider- 18 See notes 4 Pro. R. A. 75, 31 Am. able attention, was kind and affec- St. Rep. 677. HI ERBOB, FRAUD, AND UNDUE INFLUENCE. § 183 ported, so long as the law allows a man to dispose of his property according to his own wishes. It has never been supposed to be essential to a will or deed that the motive which led to the act should be virtuous, or that the object of the donor's bounty should be meritorious, but it is essential that it should be the free and voluntary act of a sane mind. If in making it he has been influenced by modest persuasion, by arguments addressed to his under- standing, or by appeals to affection merely, the act is a valid one. If it be in conformity to his wishes, it is emphatically his will, and not the will of another, and we are bound to give it effect, without reference to the motive of the testator, or the unworthiness of the legatee, until the legislature, upon considerations of public policy, shall think proper further to abridge the right of an owner to dispose of his property." 19 § 183. Influence by Persuasion, Appeals to Affection, Gratitude, or Pity. 20 ' ' To make a good will, a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like,— these are all legitimate and may be fairly pressed on the testator. On the other hand, pressure, of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist; moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort,— these if carried 19 Quoted from O'Neall v. Farr Dec. 620; Wainrtght's Appeal (1879), (1844), 1 Richardson Law (S. Car.) 89 Pa. St. 220; Porschet v. Porschet 80, 84, Abbott p. 337. See also: Wat- (1884), 82 Ky. 93, 56 Am. Rep. 880; ers v. Reed (1901), 129 Mich. 131; 88 Dickie v. Carter (1866), 42 III. 376; N. W. 394; In re Ruffino (1897), Smith v. Henline (1898), 174 111. 184, 116 Cal. 304, 48 Pac. 127; Matter 51 N. E. 227, 4 Prob. Rep. An. 61. of Mondorf (1888), 110 N. T. .450, 20 See notes 16 Am. Dec. 257, 31 Am. 18 N. E. 256; Monroe v. Barclay St. Rep. 678. (1867), 17 Ohio St. 302, 93 Am. §184 WILLS. 112 to a degree in which the free play of the testator's judg- ment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threat- ened. In a word, a testator may be led, but not driven; his will must be the offspring of his own volition." 21 § 184. Effect of Undue Influence. If the undue influ- ence affects the whole will, the whole is void; but if it appears that only a part of it was so induced, that part must be rejected and the remainder allowed and admitted to probate. 22 §185. Effect of Ratification or Repentance. A will procured by undue influence does not become valid by being approved by the testator afterwards, 23 and one 21 Hall v. Hall (1868), L. E. 1 Prob. & Div. (Eng.) 481, Chaplin 99, Abbott p. 255; Maynard v. Vinton (1886), 59 Micb. 139, 60 Am. Rep. 276, 26 N. W. 401; Robinson v. Robinson (1902), 203 Pa. St. 400, 53 Atl. 253 ; Turner's Ap- peal (1899), 72 Conn. 305, 44 Atl. 310. Argument and Persuasion. "All the Inference that the testimony tends, In the slightest degree, to establish, was an influence, by argument and per- suaslbn, to induce him to give one share of his estate to the children of the deceased sister, who were poor, so as to place them on an equality with his children. * * * If by argument or reasons presented to the mind of a parent, by children or others, he be- comes convinced and makes his will accordingly, it is no less his will than if made by the voluntary action of his own mind independent of such argu- ments or reasons." Will sustained. Harrison's Wills (1841), 40 Ky. (1 B. Mon. ) 351, and see note 16 Am. Dec. 257. "Solicitations, however importunate, cannot of themselves constitute undue influence ; for though these may have a constraining effect, they do not destroy the testator's power to freely dispose of his estate." Trost v. Dingier (1888), 118 Pa. St. 259, 270, 12 Atl. 296, 4 Am. St. 593; Englert v. Englert (1901), 198 Pa. St. 326, 47 Atl. 940, 82 Am. St. Rep. 809. "Even importunate persuasion, from which a delicate mind would shrink, will not invalidate a devise." Tawney v. Long (1874), 76 Pa. St. 106, 115. Procuring a Will to be Made. On an issue of devisavit vel non, contest- ants offered to prove that John Miller, the son with whom the testator lived and a devisee under the writing of- fered for probate, had intimated that he procured the making of the will and had given the reasons why his brothers and sisters got so small a portion. The testimony was held to have been rightly excluded, because, "the procuring a will to be made, unless by foul means, is nothing against its validity." "Neither," said the court, "was it at all material that the will was read to John Miller or that be had given the reasons why his brothers and sisters had got so small a portion. * * * A man has a right, by fair argument or persuasion, to induce another to make a will, and even to make it in his own favor." Miller v. Miller (1817), 3 Serg. & R. (Pa.), 267, 8 Am. Dec. 651. 22 Harrison's Appeal (1880), 48 Conn. 202; Lyons v. Campbell (1889), 88 Ala. 462, 7 South. 250. See also ante, § 170. 23 Haines v. Hayden (1893), 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 566; Lamb v. Girtman (1859), 26 Ga. 625; Chaddick v. Haley (1891), 81 Tex. 617, 17 S. W. 233. But see Taylor v. Kelly (1857), 31 Ala. 59 ; Harp v. Edg- ington (1901), 107 Tenn. 23, 38. 113 ERBOE, FRAUD, AND UNDUE INFLUENCE. § 186 induced by lawful persuasion does not become void by reason of the testator subsequently repenting of it. 24 § 186. Evidence Competent and Relevant— Nature of Issue. 25 In determining the materiality of evidence to prove undue influence it is important to bear in mind the point in issue. The question is whether the instru- ment offered was, at the time it was made, an expression of the will of the deceased, or expressed the will of some other or others, and was executed by him under con- straint and not because he wanted it so. In the nature of things this it not often susceptible of positive direct proof. We can only compare the deceased's powers and disposition to resist with the pressure brought to bear on them, and from the comparison determine which was the stronger; and in determining which really did prevail, we may derive material assistance by examining the cir- cumstances under which the will was made— by observ- ing the conduct of the testator and his oppressors before, at the time, and after the act, and by comparing the will as made with what he and they respectively would have been most likely to desire it to be. 26 §187. Principal Evidentiary Facts. First, then, any evidence is material which tends to show the extent of the mental and physical powers of the deceased. 27 Attempts at undue influence would seldom succeed, and are not often charged, as to dispositions made by testators who have wills of their own and are in possession of health and vigor. 28 Second, the position and power of those accused are quite as important. To what extent was the deceased under the dominion of or dependent on them, and what were their opportunities to make him express their will in the instrument? Any evidence 24 Deck v. Deck (1900), 106 Wis. — , 92 N. W. 348; Robinson v. Robin- 470, 82 N. W. 293. son (1902), 203 Pa. St. 400, 53 Atl. 25 See note 31 Am. St. Rep. 686 et 253. See note 16 Am. Dec. 262. Be q. 28 Sim v. Russell (1894), 90 Iowa 26 Tyler v. Gardiner (1866), 35 N. T. 656, 57 N. W. 601; Rollwagen v. Roll- 559, Chaplin 173; Mooney v. Olsen wagen (1876), 63 N. X. 504, Mechem (1879), 22 Kan. 69. 22. 27 Wood v. Zibble (1902), — Mich. .8 §187 WILLS. 114 throwing light on these matters is material. 29 Third, any evidence is material which indicates what sort of a will the deceased would have made if left to himself. For this purpose it is worth while to observe whether the will offered is just and natural or disproportionate in favor of those accused; 30 and reasons stated by the testator at the time, or appearing from circumstances, may be proved to explain why he made such a will. 31 Evidence is mate- rial which shows the friendly or hostile relations exist- ing between the deceased, the objects favored, and the objects not favored, by the contested will, at about the time the pressure is claimed to have been applied, and the will extorted, and his purpose and intention at that time as to the disposition of his property. 32 Previous or subsequent wills, 33 though never formally executed, 34 any previous or subsequent declarations of the testator, 2»RolIwagen v. Rollwagen (1876), 63 N. T. 504, Mechem 22 ; Beaubien v. Cicotte (1864), 12 Mich. 459, 487. Evidence that the accused domineered over the deceased at other times and that he submitted is material. Lewis v. Mason (1872), 109 Mass. 169. But acts nine years after the will was executed are too remote. O'Neall v Farr (1844), 1 Rich. L. (S. Car.) 80, 86, Abbott p. 337. But testimony of acts after the will was executed is competent. Walts v. Walts (1901), 127 Mich. 607, 86 N. W. 1030. That the accused asked others to in- duce testator to provide for her tends to show that testator was not in her power. Perkins v. Perkins (1902), 116 Iowa 253, 90 N. W. 55. 30 Tyler v. Gardiner (1866), 35 N. T. 559, Chaplin 173; Hiss v. Weik (1894), 78 Md. 439, 28 Atl. 400; Boyse v. Rossborough (1857), 6 H. L. Cas. 2, Abbott p. 247. Evidence of the wealth or poverty of those favored and those cut off and the testator's knowledge of the facts has been held material to show the reason- ableness of the will or the reverse. Sim v. Russell (1894), 90 Iowa_ 656, 57 N. W. 601 ; Davenport v. Johnson (1902), 182 Mass. 269, 65 N. E. 392; Fairchild v. Bascomb (1862), 35 Vt. 398, 417. Contra: Merriman's Appeal (1896), 108 Mich. 454, 461, 66 N. W. 372. It is a fact of little weight. Stevens v. Leonard (1900), 154 Ind. 67, 56 N. E. 27, 77 Am. St. Rep. 446. 31 Fox v. Martin (1899), 104 Wis. 581, 80 N. W. 921, 5 Prob. Rep. An. 185. 32Staser v. Hogan (1889), 120 Ind. 207, 21 N. E. 911 ; Mooney v. Olsen (3879), 22 Kan. 69; Hiss v. Weik (1894), 78 Md. 439, 28 Atl. 400; Gor- don v. Burris (1897), 141 Mo. 602, 43 S. W. 642. Page v. Beach (1903), — Mich. — , 95 N. W. 981. See note on provisions of will as evidence of undue influence, 6 Pro. R. A. 300. 33 Perkins v. Perkins (1902), 116 Iowa 253, 90 N. W. 55; Hughes v. Hughes (1858), 31 Ala. 519; Kaenders v. Montague (1899), 180 111. 300, 54 In. E. 321 ; Thompson v. Ish (1889), 99 Mo. 160, 12 S. W. 510, 17 Am. St Rep. 552; Beaubien v. Cicotte (1864), 12 Mich. 459, 489; Walton's Estate (1900), 194 Pa. St. 528, 45 Atl. 426; Irish v. Smith (1822), 8 Serg. & R. (Pa.) 573, 579, 11 Am. Dec. 648. As to subsequent wills see O'Neall v. Farr (1844), 1 Rich. L. (S. Car.) 80. 86, Abbott p. 337. 34 Love v. Johnston (1851), 34 N. Car. (12 Ired. L.) 355. 115 ERBOR, FRAUD, AND UNDUE INFLUENCE. §187 and not too remote in time, 38 and any letters or other writings made by him, 38 may be proved; not to establish the truth of any matter stated in them, but to show the state of his feelings, and in the case of statements made before the will was executed to show his purpose and desires then as to the disposition of his property. For this purpose it is also material to show what opportuni- ties he had to revoke the will afterward when the influ- ence had been removed, 37 or that he had no such oppor- tunities. 38 Fourth, evidence to show the conduct of the accused is material. For example, threats to procure such a will as was made, 39 that they did not inform the other relatives when the deceased became seriously ill, that they endeavored to keep the will a secret, 40 that they were present and officious in procuring the execution of the will, 41 that they endeavored to prevent communica- tion with the testator, 42 and how they treated the con- testant and felt concerning him at about the time the will was made. 43 ss Alabama — Roberts v. Trawick (1849), 17 Ala. 55, and extended note to same case in 52 Am. Dec. 164-169. Indiana — Goodbar v. Lidikey (1893), 136 Ind. 1, 43 Am. St. Rep. 295, 35 N. E. 691. Iowa — Goldthorp Estate (1895), 94 Iowa, 336, 58 Am. St. Rep. 400, 62 N. W. 845. Kansas — Mooney v. Olsen (1879), 22 Kan. 69. Massachusetts — L ane v. Moore (1890), 151 Mass. 87, 21 Am. St. 430, 23 N. E. 828. Michigan — Wood v. Zibble (1902), — Mich. — , 92 N. W. 348; Haines v. Hayden (1893), 95 Mich. 332, 35 Am. St. Rep. 566, 54 N. W. 911. Missouri — Thompson v. Ish (1889), 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510. Pennsylvania — Herster v. Herster (1888), 122 Pa. St. 239, 9 Am. St. Rep. 95, 16 Atl. 342. And see notes 3 Am. Dec. 395, 399 ; 31 Am. St. Rep. 690. See also ante § 174. 36 Marx v. McGlynn (1882), 88 N. T. 357, 374 ; Scheiffelin v. Scheiffelin (1899), 127 Ala. 14, 28 South. 687; Baker v. Baker (1903), 202 111. 595, 67 N. E. 410. 37 Haines v. Hayden (1893), 95 Mich. 332, 35 Am. St. Rep. 556, 54 N. W. 911; Wilson v. Moran (1855), 3 Brad. Sur. (N. T.) 172. 38 Irish v. Smith (1822), 8 Serg. & R. (Pa.) 573, 580, 11 Am. Dec. 648. 39 Perret v. Perret (1898), 184 Pa. St. 131, 39 Atl. 33. 40Byard v. Conover (1884), 39 N. J. Eq. 244; Greenwood v. Cline (1879), 7 Ore. 18; Pox v. Martin (1899), 104 Wis. 580, 80 N. W. 921, 5 Prob. Rep. An. 185. That the testator kept the will secret does not indicate undue influence. Fox v. Martin, supra ; Coffin v. Coffin (1861), 23 N. Y. 9, 80 Am. Dec. 235. And see note 31 Am. St. Rep. 684. 41 Perret v. Perret, above. 42 Tyler v. Gardiner (1866), 35 N. T 559, Chaplin 173 ; Davenport v. Johnson (1902), 182 Mass. 269, 65 N. E. 392; Walts v. Walts (1901), 127 Mich. 607, 86 N. W. 1030; Baker v. Baker (1899), 102 Wis. 226. 43Betts v. Betts (1901), 113 Iowa 111, 84 N. W. 975; Tibbetts's Estate (1902), 137 Cal. 123, 69 Pac. 978. § 188 WILLS. 116 § 188. Evidence not Competent. Declarations made by the testator to tlie effect that the will was procured by undue influence, or as to any other reason why he made it so, are usually considered mere hearsay and incompetent, except when made as a part of the res gestae, or offered for the purpose of showing the condition of the testator's feelings. 44 When anyone claimed to have obtained a will by undue influence has admitted the fact the admission would be competent against him; but if he was not a legatee, or even if he was, his admission would not be competent if it might prejudice some other legatees; the legatees are not persons jointly interested in such a sense that the admission of one is competent against another. 45 § 189. Burden and Sufficiency of Proof. 46 Undue in- fluence cannot be presumed. He who contests the pro- bate on that ground must prove that the will was so procured. 47 It cannot be presumed from the mere fact 44 Underwood v. Thurman (1900), nls v. Weekes (1874), 51 Ga. 24. To 111 Ga. 325, 36 S. B. 788; Vivian's the same effect see Griffith v. Diffen- Appeal (1901), 74 Conn. 257, 50 Atl. derffer (1878), 50 Md. 466; Herster v. 797; Goodbar v. Lldlkey (1893), 136 Herster (1888), 122 Pa. St. 239, 9 Am. Ind. 1, 43 Am. St. Eep. 296, 35 N. E. St. Rep. 95, 16 Atl. 342. 691; Schierbaum v. Schemme (1900), 45 Dale's Appeal (1889), 57 Conn. 157 Mo. 1, 80 Am. St. Eep. 604, 57 S. 127, 17 Atl. 757; Shailer v. Bumstead W. 526; Klrkpatrick v. Jenkins (1895), (1868), 99 Mass. 112, 127; O'Connor v. 96 Tenn. 85, 33 S. W. 819; Wood v. Madison (1893), 98 Mich. 183, 57 N. Zibble (1902), — Mich. — , 92 N. W. W. 105; Schierbaum v. Schemme 348; Loennecker's Will (1901), 112 (1900), 157 Mo. 1, 80 Am. St. Eep. Wis. 461, 88 N. W. 215. 604, 57 S. W. 526 ; Thompson v. "They got around me and con- Thompson (1862), 13 Ohio St. 356. fuddled me," was held competent to 46 See extended notes 21 Am. St. Eep. show the effect on testator's mind of 94-104 ; 2 Am. St. Eep. '361 ; 1 Pro. E. the acts done. Stephenson v. Stephen- A. 117. son (1883), 62 Iowa 163, 17 N. W. 456. 47 Motz's Estate (1902), 136 Cal. Declarations by the testator before 558, 69 Pac. 294 ; Mallow v. Walker the will was made, to the effect that he (1901), 115 Iowa 238, 88 N. W. 452; could not resist any demands made by Swearingen v. Inman (1902), 198 111. the accused, were held competent. Pot- 437, 65 N. E. 80 ; Gustafson v. Eger ter v. Baldwin (1882), 133 Mass. 427. (1901), 126 Mich. 454, 85 N. W. 1082 ; But declarations of testatrix that Cash v. Lust (1897), 142 Mo. 630, 64 they were hounding her nearly to death Am. St. Eep. 576, 44 S. W. 724 ; Mc- to get a Will were held Incompetent in Master v. Scriven (1893), 85 Wis. 162, Gregory's Estate (1901), 133 Cal. 131, 39 Am. St. Eep. 828, 55 N. W. 149; 65 Pac. 315. Cutler v. Cutler (1899), 103 Wis. 258, "I know I did wrong, but I could not 79 N. W. 240. help it. Lord God Almighty, whoever If the evidence is hot sufficient to heard of such a will? But I can't sustain a finding of undue influence, a change it," was held admissible, Den- refusal to direct the jury to find in 117 ERROR, FRAUD, AND UNDUE INFLUENCE. 190 that the principal legatees had both the motive and the opportunity to exercise undue influence; 48 nor from the additional fact that the will is unreasonable and unjust, 49 and the principal legatee had lived in illicit relations with the testator; 50 nor though it be shown, in addition to all this, that the testator had said that he was sorry- he had married the proponent, who had made trouble between him and the children of his former marriage. 51 § 190. Circumstantial Evidence to Satisfy. But the exercise of undue influence need not be proved by direct and positive testimony. Indeed, that would seldom be possible. It is peculiarly a question for the jury, and slight evidence entitles the contestant to have it sub- mitted. It is enough that there are circumstances from which the jury can find it. 58 Whenever a will at variance with the known previous intentions of the testator, or opposed to what would naturally be his desires, is shown to have been executed while he was in the power of the favor of the will Is error. Englert v. Englert (1901), 198 Pa. St. 326, 47 Atl. 940. The showing should be inconsistent with any other hypothesis than undue influence. It is not enough to prove facts consistent with the theory of un- due influence. Boggs v. Boggs (1901), 62 Neb. 274, 87 N. W. 40, In Oregon it is held that the burden is on the proponent, but that proof of due execution makes a prima facie case. Holman's Estate (1902), — Ore. — . 70 Pac. 908. 48 Black's Estate (1901), 132 Cal. 392, 64 Pac. 695; Shell Estate (1900), 28 Colo. 167, 63 Pac. 413, 53 L. B. A. 387, 6 Pro. R. A. 293 ; Schierbaum v. Scnemme (1900), 157 Mo. 1, 80 Am. St. Eep. 604, 57 S. W. 528; Cudney v. Cudney (1877), 68 N. T. 148; Gihon's Will (1899), 44 App. Div. 621, 60 N. X. Supp. 65, affirmed in 163 N. T. 595. 49 Ibid; Webster v. Torty (1902), 194 III. 408, 62 N. E. 907 ; Berberet v. Berberet (1895), 131 Mo. 399, 52 Am. St. Eep. 634, 33 S. W. 61. Verdict against will set aside for want of evidence in such a case. Hess Will (1892), 48 Minn. 504, 31 Am. St. Kep. 665, 51 N. W. 614. BOPorschet v. Porschet (1884), 82 Ky. 93, 56 Am. Eep. 880 ; Johnson's Estate (1894), 159 Pa. St. 630, 28 Atl. 448. Especially if married to the testator afterward : Ruffino's Estate (1897), 116 Cal. 304, 48 Pac. 127 ; Maynard v. Tyler (1897), 168 Mass. 107, 46 N. E. 413. 51 Shell Estate (1900), 28 Colo. 167, 63 Pac. 413, 53 L. B. A. 387, 6 Pro. R A. 293. 52 A Case for the Jury on the 'cir- cumstances was held to be made in the following cases : California — Tibbett's Estate (1902), 137 Cal. 123, 69 Pac. 978; Sil- vany's Estate (1899), 127 Cal. 226, 59 Pac. 571. IlUnoia-^-Keyes v. Kimmel (1900), 186 111. 109, 57 N. E. 851. Kentucky — Marshall v. Kendrick (1899, Ky.), 51 S. W. 563; Lischey v. Schrader (1898, Ky.), 47 S. W. 611. Massachusetts — Jones v. Simpson (1898), 171 Mass. 474, 50 N. E. 940. Maryland — Hiss v. Weik (1894), 78 Md. 439, 28 Atl. 400. Michigan*- Walts v. Walts (1901), 127 Mich. 607, 86 N. W. 1030. § 191 WILLS. 118 beneficiaries or their emissaries, and at a time when he was too weak, mentally or physically, to resist them, and might easily be deceived, a prima facie case of undue influence or fraud is made out, so that the finding must be against the will unless the proponents prove that no unfair advantage was taken of the testator, especially if the persons suspected were active in procuring the will. 53 Undue influence is not to be inferred from the scrivener being procured by the principal legatee though the testator lived with him and was old and sick. 64 If the testator was well and strong there arises no pre- sumption of undue influence or fraud from the fact that the person who drew it up was favored by it. 55 But if the testator was weak and the scrivener benefited, slight circumstances in addition may suffice to cast the burden upon him to show that there was no fraud prac- ticed and no undue influence exercised. 56 §191. Confidential Relations. The rule as stated by Baron Parke and often approved, is this: "If a per- son, whether an attorney or taken between wills and transactions inter vivos, as to the effect of confidential relations on presumption of undue influence, because the 67 Barry v. Batlin (1838), 1 Curteis Ecc. 637. Quoted and approved in Fost v. Mason (1883), 91 N. T. 539, 43 Am. Rep. 689, Chaplin 203 ; Yardley v. Cuthbertson (1885), 108 Pa. St. 395, 56 Am. Rep. 218, 1 Atl. 765 ; White v. Cole (1898, Ky.), 47 S. W. 759; Bar- ney's Will (1898), 70 Vt. 352, 40 Atl. 1027. See extended note on wills prepared b;' beneficiary in 71 Am. Dec. 129-134. 58 Spiritual Advisers. So held of a bequest in favor of testatrix's spiritual adviser. Marx v. McGlynn (1882), 88 N T. 357. Gifts in favor of spiritualist me- diums are treated with very great sus- picion. Lyon v. Home (1868), L. R. 6 Eq. Cas. 655 ; Thompson v. Hawks (1883), 14 Fed. 902; Leighton v. Orr (1876), 44 Iowa 679. Guardians. This statement applies especially to legacies in favor of guard- ians, or the guardian's wife. Brid- well v. Swank (1884), 84 Mo. 455. The gift was held void, though the ward was discharged from guard- ianship a little while before the will was made. Meek v. Perry (1858), 36 Miss. 190 ; Garvin v. Williams (1872), 50 Mo. 206; s. c. 44 Mo. 465, 100 Am. Dec. 314. The same presump- tion holds though the order of appoint- ment was void, but the presumption may be rebutted. Breed v. Pratt (1836), 35 Mass. (18 Pick.) 115. See also: Seiter v. Straub (1883), 1 Dem. Sur. (N. Y.) 264, in which the guard- ian procured a will from a sick girl of sixteen, and the circumstances were suspicious. bo Gifts to Confidant Sustained- No Participation. Bancroft v. Otis (1890), 91 Ala. 279, 24 Am. St. Rep. 904, 8 So. 286, an excellent case, re- viewing many cases and overruling Moore v. Spier (1885), 80 Ala. 129; Wheeler v. Whipple (1888), 44 N. J. Eq. 141, 14 Atl. 275, a legacy in favor of a confidential agent. The presumption of undue influence by the testatrix's attorney was held to be rebutted by the fact that she copied his draft. Bromley's Estate (1897), 113 Mich. 53, 71 N. W. 523. Gifts to the Testator's Medical Ad- viser are not presumed to be obtained bj undue influence in the absence of any facts indicating it. Wickes' Es- tate (1903), — Cal. — , 72 Pac. 902; Keefe's Will (1900), 47 App. Div. 214, 62 N. T. S. 124, the physician having opportunity to exercise influence, his wife being the beneficiary ; Cornell's Will (1899), 43 App. Div. 241, 60 N. T. S. 53, affirmed without opinion in 163 N. T. 608, 57 N. E. 1107. Gifts to a Spiritual Adviser who does not participate in the execution of the will are not presumed to be obtained by undue influence. Martin v. Bowdern (1900), 158 Mo. 379, 59 S. W. 227, a legacy to the arch-bishop traveling in Europe, drawn by the local priest; Collins v. Braslll (1884), 63 Iowa 434, 19 N. W. 338, a legacy to a spiritual §191 WILLS. 120 beneficiary need not be a party to making the will. 60 If, in addition to the existence of the confidential relation, the presence and participation of the beneficiary or his agent in drawing or procuring the will is shown, there may be a prima facie case for the jury, and it has been held that the finding must be against the bequest unless the proponents show that the testator was not imposed on. 61 Ordinarily there is not sufficient confidential rela- tion with the testator's house-keeper, 62 or the head of the house where he makes his home, 63 to cast the burden on them to disprove undue influence though they drew the will bequeathing the property to themselves or their rela- tives. 64 adviser sustained though testatrix called him to consult with her about her will, and informed him of her in- tention to give to him ; McEnroe t. McEnroe (1902), 201 Pa. St. 477, 51 Atl. 327, like the preceding case ; Hoi- man's Will (1902), — Ore. — , 70 Pac. 908. eo Bancroft v. Otis (1890), 91 Ala. 279, 8 So. 286, 24 Am. St. Eep. 904; Holman's Estate (1902), — Ore. — , 70 Pac. 908; Parfltt v. Lawless (1872), L. R 2 P. & D. 462. ei McQueen v. Wilson (1901), 131 Ala. 606, 31 So. 94 ; In re Spark's Will (1901), 63 N. J. Eg. 242, 51 Atl. 118. The cases on this point are reviewed in a note to Richmond's Appeal (1890), 21 Am. St. Rep. 85 (s. c. 59 Conn. 226, 22 Atl. 82), in which it was held that proof that the confidential agent pro- cured the attorney and witnesses made a case for the Jury, though he was not present when the testatrix gave the items to the attorney, and did not see or hear the will read till it had been executed. See also note to Hess's Will (1892), 31 Am. St. Rep. 681. Limitation. Under similar circum- stances the court held there was no case for the jury. The facts differed in that the beneficiary was the testa- trix's son, and general agent and at- torney, and concealed the making of the will from his sister, who was dis- inherited. Logan's Estate (1900), 195 Pa. St. 282, 45 Atl. 729. To the same effect see Dale's Appeal (1889), 57 Conn. 127, 17 Atl. 757; Gilman v. Ayer (1902), 63 N. J. Bq. 806, 52 Atl. 1131, affirming decree on opinion of lower court (1901), 47 Atl. 1049. Mor- gan's Will (1901), 110 Wis. 7, 85 N. W. 644. 62 Richardson v. Bly (1902), 181 Mass. 97, 63 N. E. 3. 63 Though on intimate relations with and doing much business for the tes- tator. Messner v. Elliott (1898), 184 Pa. St. 41, 39 Atl. 46. 64 Adams' Estate (1902), 201 Pa. St. 502, 51 Atl. 368 ; Waddington v. Buzby (1889), 45 N. J. Eq. 173, 16 Atl. 690, 14 Am. St. Rep. 706, Mechem 11 ; Lamb v. Lippincott (1898), 115 Mich. 611, 73 N. W. 887. CHAPTER VOX WHO MAY TAKE BY WILL. i 192. General Statement. "May be Made to any Person." § 193. Persons Incapable of Making Wills. §194. Persons Civilly Dead. § 195. Certainty As to the Do- nee. § 196. Bequests for Masses. "Unless Forbidden by Express Stat- ute." § 197. §198. §199. §200. §201. Corporations — English Common Law and Stat- utes. American Com- mon Law. American Dis- abling Statutes. ■ — Public Corpora- tions. Capacity of For- eign Corporations. §202. §203. §204. §205. §206. §207. §208. §209. §210. "Opposed trary §211. §212. §213. —Corporations Trustees — Capacity Act. Illustrations as to of Scope of Powers. Subscribing Witness — At Common Law. Under the Statute of Frauds. Under 25 Geo. II, c. 6. Under the Statute of Wills, 1 Vic. c. 26. American Law. Gifts to Husband or Wife of Witness. What Gifts the Statutes Avoid, to Good Morals or Con- to Public Policy." Illegal Objects. Tending to Immorality. Impairing National De- fense — Devise to Al- iens. § 192. General Statement. A devise or bequest may be made to any person, unless forbidden by express statute, opposed to good morals, or contrary to public policy. The objection may be to the particular donee taking at all, to his taking under the particular circum- stances, or to his taking for the particular purpose. 1. "MAY BE MADE TO ANY PEBSON." §193. Persons Incapable of Making Wills. Many persons who cannot make wills may take by will. Only natural persons make wills. Artificial persons may take by will. We scarcely think of the government as a per- son at all; yet unquestionably the United States or any of the states may take a devise or bequest. 1 Again, one l Dickson v. United States (1878), 125 Mass. 311, 28 Am. Rep. 230 ; Vidal v. Girard (1844), 2 How. (43 U. S.), 127. Exception. A devise to the United States was held void under the statutes of New York, which provided that de- vises might be made to "any person" 121 § 194 WILLS. 122 cannot make a will unless he has legal capacity to deal with his property, which married women could not do at common law; nor unless he has sufficient mental capacity to do business, which infants and insane persons lack. But neither of these is necessary to take by will. "In- fants, femes covert, and insane persons are not incapaci- tated from taking by devise or bequest, though they cannot manifest their acceptance; for acceptance will be presumed unless it would work injury to the devisee or legatee." 2 A child in its mother's womb may be a devisee or legatee. 3 § 194. Persons Civilly Dead. The doctrine that one dedicating himself for life to religious work and taking a vow of poverty thereby became civilly dead never ob- tained in this country, and has not been the law in Eng- land since the Reformation. Such a person is clearly competent to take a devise or legacy. 4 A person civilly dead by reason of conviction of a felony and being in prison serving sentence when the testator dies may still take a devise or bequest under his will. 5 Nor did such death ever render one entirely incompetent, as I am in- clined to believe. Before attainders were abolished the mere fact of conviction so corrupted the convict 's inherit- able blood that he could not take by intestate succession, and it might work a forfeiture of his goods ; but the con- vict 's estates in lands remained in him till declared for- feited in due course of proceedings instituted in the name of the sovereign for that purpose. And therefore competent to hold except corporations. (32 Mass.) 255, 26 Am. Dec. 598 ; It was held that the United States can- Chambers v. Shaw (1883), 52 Mich. 18, not be understood to be "any person" 17 N. W. 223. See also post § 477. The within the meaning of this statute, nor legacy must be paid to the infant's was it within the prohibition as a cor- guardian ; payment to his parent will poration. United States v. Fox (1876), not discharge the executor. Spruance 94 U. S. 315, affirming the same case v. Darlington (1894), 7 Del. Ch. Ill, reported in 52 N. Y. 530, 11 Am. Rep. 30 Atl. 663. 751. 4 Lynch v. Loretta (1886), 4 Dem. 2 1 Bigelow's Jarman *75. See also Sur. (N. Y.) 312. De Levillain v. Evans (1870), 39 Cal. 5 So held in ejectment by the devisee 120. against the heir after the term of im- 3 In re Burrows (1895), 2 Ch. Div. prisonment had expired. LaChapelle 497; Hall v. Hancock (1834), 15 Pick. v. Burpee (1893), 69 Hun (N. Y.) 436. 123 WHO MAY TAKE BY WILL. § 195 a devise of land to him must always have been good; and he would hold till his estate was divested on due proceedings for that purpose by the state. 6 § 195. Certainty As to the Donee. From the state- ment that anyone may take, it must not be supposed that the taker can be left uncertain. As we will see later, the devise or bequest is void for uncertainty unless the bene- ficiary can be pointed. out, though greater uncertainty is allowed in most states in the case of bequests for public charities. But even then the gift fails if the beneficiaries are left wholly uncertain. The question most frequently arises in connection with gifts to unincorporated socie- ties. 7 § 196. Bequests for Masses. 8 Bequests in trust to be used in paying for masses to be said for the repose of the soul of the testator or others have been held void for uncertainty of the object, there being no living person entitled to the benefit of the trust to call the court to action, 9 and in England such trusts have been held void as superstitious uses. 10 But in a number of our states such gifts have been sustained, as public trusts to advance religion, masses being part of the public wor- ship by which the living are benefited; 11 as a private trust imposed on the priest or other person named to have the masses said, the same as though it were to an undertaker to furnish a coffin and pay for testator's funeral; 12 or as a direct gift to the priest. 13 6 For a discussion of this matter see L. R. A. 360 ; Shanahan v. Kelly (1903), Avery v. Everett (1888), 110 N. T. (88 Minn.), 92 N. W. 948; McHugh 317, 18 N. B. 148, 6 Am. St. Rep. 368, v. McCole (1897), 97 Wis. 166, 72 N. 1 L. R. A. 264 ; in which a devise over W. 631, 65 Am. St. Rep. 106, 40 L. R. in case of the death of the first named, A. 724. unmarried and without issue was held lowest v. Shuttleworth (1835), 2 not to take effect on the death of the Mylne & K. 684. testator while the first named was n Hoeffer v. Clogan (1898), 171 111. serving a sentence of imprisonment for 462, 49 N. B. 527, 40 L. R. A. 731 ; life, never having married. Coleman v. O'Leary (1902), — Ky. — , 7 See post §§ 438-439. 70 S. W. 1068 ; Rhymer's Appeal 8 See Monographic Notes, 65 Am. St. (1880), 93 Pa. St. 142, 39 Am. Rep. Rep. 118, 40 L. R. A. 717, 39 Am. Rep. 736. 738 i2Moran v. Moran (1897), 104 Iowa, 9Pestorazzl v. St. Joseph's C. C. M. 216, 73 N. W. 617, 39 L. R. A. 204. (1894), 104 Ala. 327, 18 So. 394, 25 13 Harrison v. Brophy (1898), 59 § 197 WILLS. 124 2. "UNLESS FORBIDDEN BY EXPRESS STATUTE." § 197. Corporations— English Common Law and Stat- utes. Under the early English law, corporations might take by will and hold either real or personal property. 14 But the statute of wills, 34 Hen. VIII, c. 5, expressly excepted out of its enabling clause devises to bodies politic and corporate; and, accordingly, a devise to a corporation, either aggregate or sole, for its own benefit or as trustee, was void; and the lands so devised de- scended to the heir, either beneficially or charged with the trust, as the case might be. The incapacity of corpo- rations to take devises being a consequence of this excep- tion, the repeal of this statute by the statute of will, 1 Vic. c. 26, was held to enable corporations to take devises, though still under disability, by reason of the mortmain statutes, to hold against the king without his licence. 15 § 198. American Common Law. It has been held in this country, that the statute of wills, 34 Hen. VIII, c. 5, does not prevent corporations taking devises under stat- utes enabling persons generally to devise and not for- bidding devises to corporations. 1 5a The English mort- main statutes have not been recognized as part of the American common law. 18 §199.— —American Disabling Statutes. Statutes dis- qualifying corporations from taking realty or personalty, by will or otherwise, are not general in this country. But the New York statute of wills provides that "no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or by statute to Kan. 1, 51 Pac. 883, 40 L. B. A. 721; Estate (1888), 111 N. T. 66, 19 N. H. Sherman v. Baker (1898), 20 E. I. 233, 2 L. R. A. 387, Wilgus Corp. Caa. 446, 40 Atl. 11, 40 L. R. A. 717. 1034. 14 Rivanna Navig Co. v. Dawsbns 16 2 Kent Com. 282 ; Morawitz Cor- (1846), 3 Gratt. (44 Va.) 19, 46 Am. porations § 328; Perln v. Carey (1860), Dec. 183. 65 TT. S. (24 How.) 465. is 1 Bigelow's Jarman *63. The statutes prohibiting devises to 16a Rivanna Nav. Co. v. Dawsons superstitious uses have been held to be (1846), 3 Gratt. (44 Va.) 19, 46 Am. a part of the common law of Pennsyl- Pec. 183; Vidal v. Girard (1844), 2 vania. Miller v. Porter (1866), 53 Pa. How. (43 D. S.) 127, 187; McGraw'a St. 292. 125 WHO MAT TAKE BY WILL. § 200 take by devise;" and in a number of states there are pro- visions in the statutes relating to private corporations, limiting the amount of property, both real and personal, that the particular corporations may hold. In a few states these statutes are held to make the forbidden de- vises void; 17 but the more prevalent doctrine is that the heirs of the testator cannot complain, and the objection can be made only by the state in a direct proceeding. 18 These provisions must be distinguished from those de- signed, not to prevent corporations from taking, but to prevent the testator from giving so much of his estate to charities as to leave his wife and children unprovided for. Of course they cOuld complain of the violation of these. 19 §200. Public Corporations. There are seldom ex- press restrictions by statute on public corporations taking by will, and the disabling English statutes being no part of our common law, there is no reason why devises and bequests to any public corporation, without any trust imposed as to the use, should not be good; and they are valid. 20 § 201. Capacity of Foreign Corporations. A foreign corporation may take by devise. 21 So held of a bequest 17 In re McGraw's Estate (1888), 111 Will (1896), 85 Md. 79, 60 Am. St. K T. 66, 19 N. E. 233, 2 L. R. A. 387, Rep. 308, 36 Atl. 654 ; Heiskell v. Wilgus Corp. Cas. 1034; affirmed In Chickasaw Lodge (1889), 87 Tenn. 668, Cornell TJniv. v. Flske (1889), 136 TJ. 11 S. W. 825; Rivanna Nav. Co. v. S. 152; strongly approved and followed Dawsons (1846), 3 Gratt. (44 Va.) 19, in Wood v. Hammond (1888}, 16 R. I. 46 Am. Dec. 183. 98, 17 Atl. 324. See also Trustees v. is Chamberlain v. Chamberlain Chambers (1857), 3 Jones Eq. (N. (1871), 43 N. Y. 424. Car.) 253; Cromie v. Louisville O. H. 2.0 So held of a devise to a school- Soc. (1867), 66 Ky. (3 Bush) 365; De- district. Bulmer Estate (1881), 59 Cal. Camp v. Dobbins (1879), 31 N. J. Eq. 131. So held of a devise to a county. 671; Coggeshall v. Home for Children Pulbright v. Perry County (1898), 145 (1894), 18 R. I. 696, 31 Atl. 694; Mo. 432,' 46 S. W. 955; Bell County v. Starkweather v. American Bib. Soc. Alexander (1858), 22 Tex. 351. For (1874), 72 111. 50, 22 Am. Rep. 133. more extended discussion see cases 18 Farrington v. Putnam (1897), 90 cited below as to municipal corpora- Me. 405, 37 Atl. 652, 38 L. R. A. 339, tions as trustees, especially Vidal v. Wiigus Corp. Cas. 1029; Jones v. Ha- Gtrard (1844), 43 V. S. (2 How.) 127, bersham (1882), 107 U. S. 174, 188; 186. Alexander V. Tolleston Club (1884), 21 Santa Clara Female Academy v. 110 111. 65; Hayward v. Davidson Sullivan (1886), 116 111. 375, 6 N. B. (1872), 41 Ind. 212; In re Stickney's 183, 56 Am. Rep. 776. § 202 WILLS. 126 to a municipality of the German Empire. 22 Though a corporation be enabled by the law of its origin to take by devise, a devise to it of land situated in a state where devises to corporations are forbidden would be void; 23 and a devise in trust for the benefit of such a corporation would be equally void. 24 On the other hand, a similar prohibition in the statute concerning wills in the state of the corporation's origin does not prevent a valid devise to it of land situated in another state; 25 in which respect a distinction is recognized between these and similar pro- visions in the corporate charter or the laws under which the corporation is organized, the latter being admitted to adhere to the corporation and disable it everywhere. 26 In case of devises it is not important where the testator was domiciled, as it would be in cases of bequests. §202. Corporations as Trustees— Capacity to Act. It has been thought that, for want of a conscience, a cor- poration could not hold in trust; and it has been urged that arrest for contempt of court could not be made as in case of natural persons. 27 The matter was elaborately discussed before the Supreme Court of the United States in the celebrated case of Vidal v. Girard's Executors (1844) ; 28 and Justice Story, speaking for the court, de- clared that the doctrine of incapacity from want of confi- dence in the person was exploded, adding: "It is now held that where the corporation has legal capacity to take real or personal estate, there it may take and hold it upon trust, in the same manner and to the same extent as a private person may do. It is true that if the trust 22 Matter of Huss (1891), 126 N. T. St. Rep. 597, 30 N. B. 125. Contra: 537, 27 N. B. 784. Starkweather v. American Bib. Soc. 23 Fox's Will (1873), 52 N. T. 530, (1874), 72 111. 50, 22 Am. Rep. 133. 11 Am. Rep. 751, affirmed in United 26 Ibid. States v. Fox (1876), 94 U. S. 315. 27 So held of a foreign corporation, 24 Amherst College v. Ritch (1897), stress being also laid on the fact that 151 N. Y. 282, 332, 37 L. R. A. 305, it was not created under the laws of 324, 45 N. E. 876. the state, and could hold land there 25 White v. Howard (1871), 38 Conn, only for the purposes of its business, 342, Wilgus Corp. Cas. 1026 ; American though created solely to execute trusts. Bib. Soc. v. Marshall (1864), 15 Ohio United States Trust Co. v. Lee (1874), St. 537; Thompson v. Swoope (1855), 73 III. 142, 24 Am. Rep. 236. 24 Pa. St. 474 ; Cross v. United States 28 43 U. S. (2 How.) 127. T. Co. (1892), 131 N. X. 330, 27 Am. 127 WHO MAY TAKE BY WILL. § 203 be repugnant to, or inconsistent with, the proper pur- poses for which the corporation was created, that may furnish a ground why it may not be compellable to exe- cute it. But that will furnish no ground to declare the trust itself void, if otherwise unobjectionable, but will simply require a new trustee to be substituted by the proper court, possessing equity jurisdiction to enforce and perfect the object of the trust." 29 No corporation would be required to accept a trust any more than a natural person; but the rule here stated, that a corpora- tion may take and administer a devise or bequest in trust if the object be germane to the purpose of the corpo- ration, is clearly established. §203. Illustrations of Scope of Powers. On this principle, the following devises and bequests in trust have been sustained, and the trustee named permitted to administer them: to a township, a bequest in trust to divide the yearly income equally between the widows of the town owning less than $500, 30 for the use of the public schools of the town, 31 or to purchase and display the flag of the United States ; 32 to a village, a bequest in trust for its public library, 33 or to establish and maintain a high school; 34 to a city board of water commissioners, devises and bequests to improve and beautify the city water-works; 35 to cities, devises and bequests in trust to establish and maintain schools for the poor and orphans, 36 for a public park and library, 37 to improve the highways 29 43 U. S. (2 How.) 187. 36 VIdal v. Girard (1844), 43 U. S. 30 Lovell v. CharleBtown (1891), 66 (2 How.) 127; McDonough v. Murdoch N. Hamp. 584, 32 Atl. 160. (1853), 56 U. S. (15 How.) 367; Perin 31 Skinner v. Harrison Tp. (1888), v. Carey (1860), 65 U. S. (24 How.) 116 Ind. 139, 18 N. B. 529; Davis v. 465; Philadelphia v. Fox (1870), 64 Barnstable (1891), 154 Mass. 224, 28 Pa. St. 169. It is no objection that the N. E. 165. school is to be located outside of the 32 Sargent t. Cornish (1873), 54 N. city limits. Barnum v. Mayor of Bal- Hamp. 18. timore (1884), 62 Md. 275, 50 Am. 33 Webster v. Wiggin (1895), 19 B. Rep. 219. I. 73, 31 Atl. 824, 28 L. R. A. 510. 87 Bartlett, petitioner (1895), 163 S4Hatheway v. Sackett (1875), 32 Mass. 509, 40 N. B. 899; Penny v. Mich. 97; Hathaway v. New Baltimore Croul (1889), 76 Mich. 471, 43 N. W. (1882), 48 Mich. 251, 12 N. W. 186. 649. 35 Penny v. Croul (1889), 76 Mich. 471, 43 N. W. 649. § 204 WILLS. 128 and other public works of the city, 38 to establish and maintain a public library and a home for the aged poor, 39 for the support of the worthy poor of the city, 40 to main- tain a foundling hospital for the relief of unfortunate fe- males and care for their offspring, 41 to aid and support a library association serving the inhabitants of the city, 42 to distribute in aid of religious societies regardless of sect, 43 to pay the salaries of the teachers in the public schools of the city, 44 to buy ground and build neat cot- tages to be rented to the laboring classes, 46 and to develop a coal mine near the city to be owned by it; 46 to a school district, a bequest in trust to pay the current expenses of the school; 47 to counties, devises and bequests in trust to erect a court-house, 48 support the public schools of the county, 49 to educate the colored children of the county, 60 for the benefit of the poor people of the county, 61 or to establish a home for worthy homeless persons to be se- lected by the county board, though a church was to be sustained in connection; 52 and to the state to sustain schools for the poor. 63 It is generally held that a public corporation cannot administer a devise in trust for any particular religious sect; 54 and such gifts have been held void because of such incapacity of the trustee to take, and the property given to the heir or next of kin. 66 § 204. Subscribing Witnesses— At Common Law. No 88 Higginson v. Turner (1898), 171 48 Stuart v. City of Eastern (1896), Mass. 586, 51 N. E. 172, will of B. 71 Fed. Rep. 854, 21 C. C. A. 146 ; af- Franklin. firmed 1898, 170 U. S. 383, 18 S. Ct. 39Beurhaus v. Cole (1897), 94 Wis. 650. 617, 69 N. W. 986. 49 Christy v. Com'rs of Ashtabula 40Dascomb v. Marston (1888), 80 Co. (1885), 41 Ohio St. 711. Me. 223, 13 Atl. 888. so Craig y. Secrist (1876), 54 Ind. 41 Phillips v. Harrow (1894), 93 419. Iowa 92, 61 N. W. 434. 51 Board of Com'rs v. Rogers (1876), 42 Ibid. 55 Ind. 297. 43 Ibid. 52 Board of Com'rs Rush Co. v. Din- 44 Webster v. Wiggin (1895), 19 R. widdie (1894), 139 Ind. 128, 37 N. E. I. 73, 31 Atl. 824, 28 L. R. A. 510. 795. 46 Ibid. 53 Bedford v. Bedford (1896), 99 46Delaney v. Salina (1886), 34 Kan. Ky. 273, 35 S. W. 926. 532, 9 Pac. 271. 54 Maysville v. Wood (1897), 102 47 Matter of Bogart (1899), 43 N. Ky. 263, 43 S. W. 403. Y. App. Div. 582; School Dist. v. Shel- 55 Bullard v. Shirley (1891), 153 don (1898), 71 Vt. 95, 41 Atl. 1041. Mass. 559, 27 N. E. 766. 129 WHO MAY TAKE BY WILL. § 205 other proof can be given to establish a writing signed by witnesses till they or some of them have been examined, or failure to produce them accounted f or. 56 No one could testify at common law in any cause in the event of which he was directly interested; 57 and no case could present stronger reasons for the application of this rule than when persons claiming an interest under an alleged will seek to establish it by their own testimony after death has sealed the lips of the only one who could expose them. It would never do to permit the beneficiaries to prove the will; but the fact that they have subscribed it as witnesses would not prevent proof by other evidence, and the will would be good if no law required it to be witnessed; and being well proved, the gift to the sub- scribing witness would be as valid as any other. 58 Pos- sibly the proponent would have to produce the subscrib- ing witness, but objection to his testimony because of interest would be a waiver of right to demand it, and would open the door to other proof. 69 § 205. Under the Statute of Frauds. When it was provided by the Statute of Frauds in 1677, 29 Car. II, e. 3, § 5, that devises of land should be attested and sub- scribed by three or four credible witnesses, the judges did not agree as to whether the whole will was void if any of these witnesses were beneficiaries under it. It will be observed that the statute leaves the law un- changed as to the manner of proving devises, simply providing how they shall be executed; and clearly the will could be proved by parol after the writing had been lost and all the subscribing witnesses were dead. Hel- liard v. Jennings (1699) 60 involved a devise subscribed by the only devisee and two others as witnesses; and it 06 Green leaf on Evidence 9 569. 8 N. Dak. 585, 73 Am. St Bep. 779, 80 57 Id. § 386 et seq. N. W. 772. 58 Emanuel v. Constable (1827), 3 eoMost fully reported In 1 L. Ray- Russell Ch. (Eng.) 436; Foster v. Ban- mond 505, but also reported in Freem. bury (1829), 3 Simons Ch. (Eng.) 40. K. B. 509, Carthew 514, as Hilliard v. 59 Compare : Seibold v. Rogers Jennings in 1 Comyns 90, and as H1I- (1895), 110 Ala. 438, 18 South. 312; ard v. Gennings in 12 Modern 276, 4 Donovan v. St Anthony &c. Co. (1899), Burn Ecel. L. 75. 9 § 206 WILLS. 130 was argued that the devisee was a man above suspicion, and though he could not testify, the will was subscribed by the required number, and could be proved by the others; but the court held the devise void. Before this time a practice had arisen, in cases of wills containing bequests to subscribing witnesses, of sustaining the de- vises and other bequests if the subscribing witnesses released their bequests, whereupon they were held com- petent. 61 To this a vigorous protest was made by some of the judges, and finally in 1746 in Holdfast d. Anstey v. Dowsing, 62 often cited as Anstey v. Dowsing, a will consisting of devises and bequests was held entirely void, because all the property, real and personal, was charged with payment of ten pounds each to one of the subscrib- ing witnesses and his wife, and gave an annual annuity of twenty pounds to the separate use of the wife for life. § 206. Under 25 Geo. II, c. 6. The people are said to have become alarmed by this decision, 63 especially be- cause it was said that the whole will was void if any of the witnesses were interested; and those most commonly called, because at hand, were usually interested in some way — the physician and scrivener for their fees, the nurse and other servants for their wages; and if the testator simply directed his debts to be paid, the will would be wholly void. It was therefore provided by statute six years later, 1752, 64 applying to England and the American colonies, that devises and bequests to subscribing wit- nesses, so far only as concerns such witnesses and those claiming under them, shall be void, except charges on land for the payment of debts so far as ascertained; and that the witnesses shall be admitted to prove the will. ei See Pyke v. Crouch (1692, 8 Wm. appeal 1 W. BI. 8. See the elaborate 3), 1 L. Raymond 730. opinion of Lord Mansfield to the con- See the able dissenting, opinion of trary in the celebrated case of Wind- Lord Camden, Ch. J., in Doe d. Hind- ham v. Chetwynd, in 1757, reported in son v. Hersey (1760), reported in 4 1 Burrows 414, 4 Burn Bccl. L. 90, Ab- Burn Eccl. L. 97, and quoted from in bott p. 305, 1 W. Bl. 95. 1 Eedf. Wills *253n, Cassoday on Wills 63 2 Bl. Com. 377. § 175. 64 25 Geo. II c. 6. 62 2 Strange 1253, Abbott p. 302 ; on 131 WHO MAY TAKE BY WILL. § 207 This statute did not make bequests to the wife of a wit- ness void, and the courts held that such a bequest dis- qualified the witness and thus defeated the whole will. 85 Inasmuch as wills of personalty did not have to be witnessed, it was held that this statute did not make void a bequest in a will of personalty only, when the legatee signed as a witness. 66 § 207. Under the Statute of Wills, 1 Vic. c. 26. The Statute of Wills, 1 Vic. c. 26, further provided that de- vises and bequests to the husband or wife of a subscrib- ing witness shall be void, and that a witness shall not be incompetent by reason of being named as executor in the will. 67 This statute further required all wills to be in writing and witnessed, so that bequests to subscrib- ing witnesses to wills of personalty only were made void. § 208. American Law. The statute 25 Geo. II, c. 6, has been held to be a part of the common law here; 68 but in most states the matter has been legislated on. In a few states devises and bequests to subscribing witnesses, other than charges to pay debts, are made void, unless the required number of competent witnesses have signed besides. 69 In Connecticut and Vermont a similar saving is also made of devises and bequests to heirs. 70 But in most of the states it has been provided that subscribing witnesses shall be competent notwithstanding devises or bequests to them; and, if the will would not be duly executed without them, they shall take only so much es Hatfield v. Thorp (1822), 5 Barn. Massachusetts — Public Statutes & Aid. 589, 7 E. C. L. 322. (1882), c. 127 § 3 ; Sullivan v. Sullivan ee Emanuel v. Constable (1827), 3 (1871), 106 Mass. 474 ; Powers v. Cod- Eussell Ch. (Eng.) 436; Foster v. Ban- wise (1899), 172 Mass. 425. bury (1829), 3 Simons Ch. (Eng.) 40. New Hampshire — Pub. Stat. (1901), Contra: Lees v. Summersgill (1811), c. 186 § 3; Hodgman v. Kittrecige 17 Ves. 508, overruled. (1892), 67 N. Hamp. 254, 68 Am. St. 67 1 Vic. c. 26 §§ 15-17. Rep. 661. 68 Elliott v. Brent (1887), 6 Mackey West Virginia — Code (1899), c. 77 (D. C) 98. The saving clause having § 18; Davis v. Davis (1897), 43 W. Va. been omitted from the revised statutes 300. a devise or bequest to a witness was to Connecticut — Gen. Stat. (1888), held to avoid the whole will. Trinita- § 539. rian Cong., appellant (1898), 91 Me. Vermont— Statutes (1894), § 2352; 416. Clark v. Clark (1882), 54 Vt. 489. 69 Georgia — Code (1895), § 3275. §209 WILLS. 132 as they would if the will were not sustained, not to exceed the amount given them by it. 71 These statutes do not entitle the witness to take under the will as much as he would get without it and also an equal share of what was left intestate; but only so much altogether as he would have without a will. 72 It has been held in Alabama that the statutes on this subject are superseded by their statute making parties and interested persons competent witnesses in actions generally, so that devises to the subscribing witnesses were held to be valid and well proved by their testimony. 73 But the contrary has been held elsewhere. 74 There are also statutes in some states providing that witnesses given bequests shall be competent on renouncing the gift. 75 §209. Gifts to Husband or Wife of Witness. In a few states gifts to the husband or wife of a subscribing witness (necessary to make the will valid) are declared 71 Arkansas — Sand. & H. Dig. of Stat. (1894), Si 7433-7435. California — Civil Code (Pom. 1901), §§ 1282-1283. Colorado — Mills An. Stat. (1891), § 4656. Illinois — Hurd Stat. (1901), Ch. 148 ' { 8; Harp v. Parr (1897), 168 111. 459, 473. Indiana — Thornton E e v. Stat. (1897), § 2807. Iowa — Code (1897), § 3275. Kansas — Gen. Stat. (1901), 5 7947. Michigan — Comp. Laws (1897), §§ 9268, 9269. Minnesota — Gen. Stat. (1894), §§ 4428, 4429. Missouri— Rev. Stat. (1899), §§4637- 4640; Grimm v. Tittman (1892), 113 Mo. 56. Montana — Civil Code (1895), §§ 1729-1730. Nebraska — Comp. Stat. (1901), §§ 2644, 2645. New York — Rev. Stat. (1827), pt. 2, c. 6, t. 1, §§ 50, 51 ; 3 Birdseye's (1901), p. 4021, §§18, 19; Matter of Brown (1884), 66 How. Pr. 289. North Carolina — Code (1883), § 2147; Boone v. Lewis (1889), 103 N. Car. 40. North Dakota — Rev. Codes (1899), §§ 3679, 3680. Ohio— Bates Stat. (1898), § 5925. Oklahoma — Statutes (1893), §§6199- 6201. Oregon — Hill An. Laws (1892), §§ 3085, 3086. South Carolina — Rev. Stat. (1893), § 1991 ; Key v. Weathersbee (1894), 43 S. Car. 414, 49 Am. St. 846. South Dakota — Annotated Stat. (1901), §§ 4528, 4529. Tewas — Civil Stat. (1889), § 4872; Gamble v. Butchee (1895), 87 Tex. 643. Wisconsin — Gen. Stat. (1898), §§ 2284, 2285. 72 Grimm v. Tittman (1892), 113 Mo. 56, 20 S. W. 664. 7S Henry v. Hall (1894), 106 Ala. 84, 101, 17 South. 187; Snider v. Burks (1887), 84 Ala. 53; Kumpe v. Coons (1879), 63 Ala. 448. And see Brown v. Carroll (1867), 36 Ga. 568, in which a legatee under an oral will was al- lowed to prove his own legacy. Com- pare Jones v. Habersham (1879), 63 Ga. 146. 74 Elliott v. Brent (1887), 6 Mackey (D. C.) 98. See also: Miltenberger v. Miltenberger (1883), 78 Mo. 27. 75 Grimm v. Tittman (1892), 113 Mo. 56, 20 B. W. 664. X33 WHO MAT TAKE BY WILL. § 210 by express statute to be void; 76 in others they have been held void under statutes making devises and bequests to subscribing witnesses void, because husband and wife are one; 77 in others they have been held not to be thus avoided, and the whole will has therefore been held void for want of the required number of competent witnesses, 78 as had been held by the English courts under 25 Geo. II, c. 6; 79 and in still others it has been held that, under the modern married women's acts and other statutes touch- ing the relation of husband and wife, the gift to the husband or wife of a subscribing witness is valid, and that the witness is not rendered incompetent by it, as he or she has no interest in it. 80 It is never held that marriage between a witness and a beneficiary after the will is executed in any way affects the validity of the will as a whole or of the particular gift. 81 § 210. What Gifts the Statutes Avoid. Only bene- ficial gifts are made void. A gift to a subscribing witness, or to the husband or wife of one, in trust is valid. 82 A 78 Connecticut — Gen. Stat. (1888), Mississippi — Rucker v. Lambdln j 539. (1849), 12 S. & M. (20 Miss.) 230, 257. Massachusetts — Eev. Laws (1902), New Hampshire — Hodgman v. Kitt- c 135 §3; Powers v. Codwise (1899), redge (1894), 67 N. Hamp. 254, 32 Atl. 172 Mass. 425. 158, 68 Am. St. Rep. 661. North Carolina — Code (1883), § Vermont — Giddings v. Turgeon 2147. (1886), 58 Vt. 106, 4 Atl. 711. South Carolina — Rev. Stat. (1893), 79 Hatfield v. Thorp (1822), 5 Barn. § 1991. & Aid. 589, 7 E. C. L. 322., Vermont — Statutes (1894), § 2353. so Iowa — Hawkins y. Hawkins West Virginia — Code (1899), c. 77 (1880), 54 Iowa 443, 6 N. W. 699, $ 18; Davis v. Davis (1897), 43 W. Va. Chaplin 304; Bates v. Officer (1886), 300. 70 Iowa 343, 30 N. W. 608. 77 Jackson v. Wood (1799), 1 Johns. Minnesota — Holt's Will (1893), 56 Cas. (N. T.) 163; Jackson v. Durand Minn. 33, 57 N. W. 219, 45 Am. St. (1801), 2 Id. 314, 1 Am. Dec. 117; Rep. 434. Winslow v. Kimball (1846), 25 Me. 492, New Jersey — Llppincott v, Wikoff Chaplin 305. (1895), 54 N. J. Eq. 107, 33 Atl. 305. 78 Connecticut — Fortune v. Buck Temas — Gamble v. Butchee (1895), (1854), 23 Conn. 1. 87 Tex. 643, 30 S. W. 861. Illinois — Fisher v. Spence (1894), Georgia — So by statute in Georgia: 150 111. 253, 37 N. B. 314, 41 Am. St. Code (1895), § 3275. Rep. 360; Sloan v. Sloan (1900), 184 81 Thorpe v. Bestwick (1881), 6 Q. III. 579, 56 N. E. 952. B. Div. 311. Indiana — Belledin v. Gooley (1901), 82 Cresswell v. Cresswell (1868), L. 157 Ind. 49, 60 N. E. 706. R. 6 Bq. 69 ; Hogan v. Wyman (1868), Massachusetts — Sullivan v. Sullivan 2 Ore. 302 ; Pruyn v. Brinkerhoff (1871), 106 Mass. 474, 8 Am. Rep. 356, (1867), 57 Barb. (N. T.) 176. Abbott p. 309, Chaplin 299. § 210 WILLS. 134 gift to one in trust for a subscribing witness is void, though the trust be secret. 83 The statute only avoids gifts under the same written 84 will. The residuary clause of the will is not made void by the beneficiary under it subscribing as a witness to a codicil, though the codicil revokes gifts in the will. 85 The statute only avoids gifts of direct benefit to the witness. A gift to a church is not void because a member of it was a subscribing wit- ness. 86 The devise is not void because the presumptive heir of the devisee witnessed it, 87 though the land devised descended to the witness by the death of the devisee before the will was proved. 88 Where such gifts are not excepted out of the operation of the statute, devises and bequests have been held void by reason of the devisee or legatee subscribing as a witness, though there were enough competent witnesses who subscribed before him. 89 And statutes making bequests to subscribing witnesses void only when^such witnesses are necessary to prove the will, render all bequests to witnesses void, though more signed than the statute required, unless there were the required number to whom no bequests were given. 90 But parol evidence is competent to show that he did not sub- scribe as a witness, in which case the gift would be good. 91 83 Re Fleetwood (1878), 15 Ch. Dlv. cause the son of the legatee was a nec- 594. But see Walker v. Skeene (1859), essary witness and incompetent. Gill's 40 Tenn. (3 Head), 1. Will (1834), 2 Dana (33 Ky.) 447. 84 See post 230 and ante § 206. 89 Taylor v. Mills (1833), 1 Moody 85 Gurney v. Gurney (1855), 3 Drew- & R. 288 ; Cozens t. Crout, 42 L. J. Ch. ry, 208. 840; Randfleld v. Randfleld (1862), 32 86 Goodrich's Appeal (1889), 57 L. J. Ch. 668. See same case 8 H. L. Conn. 275, 18 Atl. 49 ; Quinn v. Cas. 225. Shields (1883), 62 Iowa, 129, 17 N. W. so Nixon v. Armstrong (1873), 38 437, 49 Am. Rep. 141 ; Warren v. Bax- Tex. 297. The statute does not mean ter (1859), 48 Me. 193. that if there is one disinterested wit- So if an employee of the charitable ness to swear to the will at the pro- society witnessed the will. Comhs's hate, the bequests to the others will be Appeal (1884), 105 Pa. St. 155. good. Fowler v. Stagner (1881), 55 87 Jones v. Tibbetts (1870), 57 Me. Tex. 393. 572; Old v. Old (1834), 4 Dev. (15 91 Re Sharman (1869), L. R. 1 P. & N. Car.) 500; Allen v. Allen (1812), D. 661, 38 L. J. P. 47; Boone v. Lewis 2 Overt. (2 Tenn.) 172. (1889), 103 N. Car. 40, 9 S. B. 644, 14 88 Maxwell v. Hill (1891), 89 Tenn. Am. St. Rep. 783. But see Wigan v. 584, 15 S. W. 253. But a legatee under Rowland (1853), 11 Hare 157, 45 Eng. a nuncupative will having died after Ch. 158. the testator, the whole will failed be- 135 WHO MAT TAKE BY WILL. § 211 The gift is made good in any case by affirming the will in a codicil or re-executing it before other witnesses. 98 3. "OPPOSED TO GOOD MORALS OB CONTRARY TO PUBLIC POL- ICY." §211. Illegal Objects. Whatever is opposed to good morals is contrary to public policy, so that the two objec- tions may be considered together. Public policy changes ; and, aside from this fact, it is impossible to lay down any definite rule as to what is opposed to public policy. I can only illustrate. A gift in furtherance of an illegal purpose is certainly void on grounds of public policy. 92 a A gift in trust to obtain by legal means the overthrow of an established legal body or institution is not void, 93 unless by not limiting the time the rule against perpetui- ties might be violated. 94 One who murders the testator to secure the benefit under the will is not permitted to take. 95 §212. Tending to Immorality. A gift to a woman on condition that she shall not live with her husband is void if the condition is made precedent; but if it were a condition subsequent the gift would be absolute and the condition void. 96 The proportion of the estate which can 92 Anderson v. Anderson (1872), L. the gift should terminate if legatee E. 13 Eq. 381. should ever live with her husband 92a See ante § 49. again. Witherspoon v. Brokaw (1900), 98 Bissell In re (1902), 63 Neb. 585, 85 Mo. App. 169; same ruling on 88 N. W. 683 antimason. But see similar facts. Kansdell v. Boston Manners v. Philadelphia Library Co. (1898), 172 111. 439, 50 N. E. Ill, 43 (1880), 93 Pa. St. 165, 39 Am. Rep. L. E. A. 526, 3 Pro. R. A. 156, dis- 741, and extended note to last ; Zeis- missing a bill in equity filed to have a weiss v. James (1870), 62 Pa. St, 465, condition in a will declared void,' by 3 Am. Eep. 556. which complainant's father gave him 94 Jackson v. Phillips (1867), 96 the use of a farm till he should be- Mass. (14 Allen) 539, 571, Hutch. & B. come sole and unmarried, and then to Eq. Cas. 402, 411. A bequest of a fund him absolutely, but If his wife, Julia, to be used as a continual trust in agi- should survive him without being tation in favor of woman's suffrage, divorced, then to his children, if any, 95 Eiggs v. Palmer (1889), 115 N. T. and if none, then to the other devisees; 506, 12 Am. St. Rep. 819, 5 L. E. A. Conrad v. Long (1875), 33 Mich. 78, 340, 22 N. E. 188. But the devise is holding that the following words cre- not void. Ellerson v. Westcott (1896), ated a condition subsequent, and conse- 148 N. T. 149, 42 N. E. 540. quently void : "But if she should con- 96 Conditions Tending to Separate tinue so to live as the wife of said Husband and Wife. — Wright v. Henry Long until her death, then, and Mayer (1900), 47 N. T. App. Div. 604, in that case, I give," etc.; Cooper v. 62 N. T. S. 610, holding void as a con- Eemsen (1821), 5 Johns. Ch. (N. T.) dition subsequent, a provision that 459, holding that no cause of action 212 WILLS. 136 be given to the testator's mistress or illegitimate chil- dren is limited by statute in a very few states; 97 but in absence of such statutes devises and bequests are not void because the testator and beneficiary lived in illicit relations; 98 and devises and bequests to illegitimate chil- dren are valid, even as to children not yet born. 99 Since the law will not enquire into the paternity of bastards, they must be described by name, maternity, or reputed paternity. 1 No public policy makes gifts to the one drawing the will void. Such gifts are at most pre- sumptively obtained by fraud, under some circum- stances. 2 for recovery of any annuity during separation, was made by proof of a voluntary separation by plaintiff from ber husband after deatb of testator, the will having been made while she was not living with ber husband. There being a direction in the will to the executors to pay to the testa- tor's son twelve years after the death of the testator, if at that time they should be convinced that the son had completely and permanently severed his relations with S. G., it was held that the execution of a codicil to the will, after the son had married S. G. and the testator had been in- formed of the fact, rendered the con- dition void, though the gift to the son was not mentioned in the codicil. Hawke v. Euyart (1890), 30 Neb. 149, 48 N. W. 422, 27 Am. St. Kep. 391. See also Cruger v. Phelps (1897), 21 Misc. 252, 47 N. T. S. 61. In Thayer v. Spear (1885), 58 Vt. 327, 2 Atl. 161, a gift to testatrix's daughter of the income of property "so long as said Alice shall remain the wife of Ira," etc., and whenever for any cause she should cease to be the wife of said Ira, the executors were directed to pay her the principal, was held unobjectionable. The court said : "It was a wise and prudent provision to make for her daughter. While she remained a wife, her husband would be under obligation to support her ; and hence the income, only, was absolutely left to her during the continuance of that relation. But when she should cease to be a wife and so become de- pendent on her own resources, it was just and wise to provide that she should have the entire estate." Fol- lowed on facts very similar in Born v. Horstmann (1889), 80 Cal. 452, 22 Pac. 338, 5 L. R. A. 577 ; and in Ellis v. Birkhead (1902), — Tex. Civ. App. — , 71 S. W. 31, reviewing several cases. But in Matter of Haight (1900), 51 N. Y. App. Div. 310, 64 N. T. S. 1029, the cases are reviewed at length and the court held that the gift should be given effect free from the condition, regardless of whether it was in form a condition precedent or subsequent, if the evident purpose was to induce or continue separation of husband and wife, the gift in that case being of a small annuity till permanent separa- tion or divorce, "and then the whole of said income." 97 See Massey v. Wallace (1889), 32 S. Car. 149, 10 S. E. 937; Gore v. Clarke (1892), 37 S. Car. 537, 16 S. E. 614; Gibson v. Dooley (1880), 32 La. Ann. 959. 98 Smith v. Du Bose (1887), 78 Ga. 413, 6 Am. St. Eep. 260 ; Arnault v. Arnault (1894), 52 N. J. Eq. 801, 31 Atl. 606; Monroe v. Barclay (1867), 17 Ohio St. 302, 93 Am. Dec. 620, Me- chem 25. See also ante % 182. 9»Occleston v. Pullalove (1873), L. R. 9 Ch. App. 147; In re Hastie (1887), L. E. 35 Ch. Div. 728; Sulli- van v. Parker (1893), 113 N. Car. 301, 18 S. E. 347. l In re Bolton (1885), L. E. 31 Ch. Div. 542. z See ante §§ 190, 191. 137 WHO MAY TAKE BY WILL. § 213 §213. Impairing National Safety— Devise to Aliens. While the public defense depended on the feudal tenures, it was clearly against public policy to allow aliens to acquire lands by devise or otherwise; but the main rea- sons for the rule ceased long ago, and it is now generally provided by statute that aliens may acquire lands by purchase or descent. Bequests of personalty to aliens were always unobjectionable, 3 and devises of lands even to alien enemies were never void, but only voidable by the state in a direct proceeding for the purpose. 4 If the alien became naturalized before the government acted, his title became unimpeachable. 5 Statutes expressly dis- abling aliens to take or hold are sometimes held to make the gift void, so that advantage of it may be taken by the heirs. 6 Other statutes are held only to enable the state to avoid, and the heir cannot object. 7 3 Craig T. Leslie (1818), 16 U. S. 6 People v. Conklin (1841), 2 Hill (3 Wheat.) 563, Hutchins Bq. Cas. 38. (N. T.) 67; Manuel v. Wulff (1894), 4 1 Bigelow's Jarman *67 ; Fairfax 152 V. S. 505. v. Hunter (1812), 11 U. S. (7 Cranch.) eDeGraff v. Went (1897), 164 111. 603. For numerous decisions citing 485,' 45 N. E. 1075. and approving this case see 1 Rose's t Brigham v. Eenyon (1896), 76 Fed. Notes on U. S. Rep. 585-589. Rep. 30. CHAPTER IX. FORMALITIES REQUIRED IN MAKING WILLS. § 214. Retrospect and Forecast Formalities Before the Statute of Frauds 29 Car. II, c. 3. § 215. Roman Form. § 216. Original English Law. § 217. Under the Statute of Wills 32 Henry VIII c. 1. 8 218. Why Statute of Frauds Was Enacted. Formalities Required by Statute of Frauds and Subsequent Acts. A. Requisites of Oral Wills. § 219. Forecast. § 220. Statute of Frauds 29 Car. II c. 3 § 18. § 221. Same, § 19. §222. Same, §22. § 223. Corresponding A m e r - ican Statutes. Who May Make Oral Wills. Testamentary Capacity and Intent. What May be Given. "Nuncupative." "Where Estate There- by Bequeathed Shall Exceed the Value." "That Is Not Proved By the Oaths." "Of Three Witnesses at the Least." "That Were Present at the Making Thereof." "Did Bid the Persons Present or Some of Them Bear Witness." "Or to That Effect." §224. §225. §226. §227. §228. ,229. §230. §231. §232. §233. § 234. "Time of the Last Sick- ness." § 235. "In the House of His Habitation." §236. "After Six Months * * * No Testimony Shall be Received." § 237. "Committed to Writing Within Six Days." § 238. "Any Soldier Being in Actual Military Ser- vice or a Mariner or Seaman Being at Sea." §239. The Privilege as a Seaman. B. Requisites of Written Wills. §240. Statute of Frauds 29 Car. II c. 3 § 5. § 241. American Statutes, o. "All Devises * * of any Lands or Tenements." §242. Written Wills of Per- sonalty Unaffected. § 243. What is Land. 6. "Shall be In Writing." § 244. Scope Note. § 245. Language. § 246. In Pencil, Print, or Typewriting. § 247. Material Written on. § 248. Loose Sheets. § 249. Incorporation by Refer- ence. Proof Essential to Incorporation. Nature of Writing §250. §251. Incorporated. The Proper Parts of a Will. "Signed by the Party so Devising." American Statutes. What Constitutes Sign- ing. Peculiar Signatures Held Sufficient. Approval Necessary. Place of Signature un- der 29 Car. II. Where Signing at End Required. What is Signing at End. Time of Signing. Sealing. Dating. by Some Other Per- son In His Presence and by His Directions." §252. i253. J254. 1255. 5 256. S257. i 258. 259. 260. 261. 262. "Or 138 JJ39 FORMALITIES REQUIRED IN MAKING WILLS. § 214 § 263. Whether Another May Sign. § 264. Who May Sign for Tes- tator. § 265. Form of Signing by An- other. § 266. In Bis Presence. § 267. - By His Express Direc- tions. "Attested." § 268. Holographic Wills. W hat Sufficient in General. The Writing Must All Be Made by the Testator. Not §269. §270. §271. Affected by Void Witnessing. $272. "Attested," Defined and Distinguished. § 273. Need not See Signature Made. § 274. Need not Hear Same Acknowledgment. § 275. Need not Know Con- tents. §276. Need not Know that Testator Knows. §277. Need not Notice Pres- ence of Testator. § 278. Need not See Whole Will. §279. Need not Know it is a Will. § 280. Need not See Signature. §281. Where Signature Must be Attested. §282. Whether Signing In- cludes Attesting. §283. Implied Acknowledg- ment Sufficient. § 284. Insufficient Attestation. §285. What is Sufficient Pub- lication. "Subscribed." § 286. American Statutes. § 287. Attestation Clause Un- necessary. § 288. Advantages of Having a full Attestation Clause. § 289. Bequest to Sign. §290. Need not Sign in Pres- ence of Bach Other. §291. Signing after the Death of the Testator. §292. Effect of Witnesses Signing First. §293. If Witnesses Sign be- fore Will Written. § 294. Intention of Witness. § 295. Statutes as to Position of Signature. § 296. Position of Signature Under Statute of Frauds. § 297. Signature on Separate Paper. §298. Form of Witness's Sig- nature. § 299. Signature by Another. §300. Place of Residence Re- quired. . "In the Presence of the Said Devisor." § 301. American Statutes. § 302. Must be Conscious of the Act. §303. It is Enough if He Can See. § 304. Acknowledgment of Sig- nature. § 305. Is Presence Ability to See? § 306. When Present Though Unable to See. § 307. Presumption. . "By Three or Four." § 308. American Statutes. "Credible Witnesses." § 309. American Statutes. § 310. Meaning'-* of "Disinter- ested," "Credible," and "Competent." § 311. At What Time. § 312. Proof and Presumptions as to Competency. § 313. Interest. § 314. Executors. § 315. Probate Judges. § 316. Infants. § 317. Confidential Advisers. § 318. Husband and Wife. § 214. Retrospect and Forecast. Concerning wills, I have thus far inquired: 1, as to what a will is; 2, as to what may be disposed of by will; 3, as to who may make a will; 4, as to the effect of error, fraud, or undue influ- ence, on the validity of wills; 5, as to the persons who § 215 WILLS. 140 may take under wills; and, according to the plan of treat- ment stated at the beginning, the next matter to be con- sidered is, 6, as to the formalities required in making wills. 1. FORMALITIES BEFORE THE STATUTE OF FRAUDS, 29 CAR. II, 0. 3. § 215. Roman Form. Before writing became common, ceremonies were used to impress important acts on the memory and furnish proof of deliberation and fixed pur- pose. Thus a symbolic sale was the form a will took among the early Romans. 1 § 216. Original English Law. But in the early English law no solemnity seems to have been required to make any will. All that had to be established was the testa- mentary intention, and that might be made known by the testator as he would communicate any other desire. All wills might therefore be made and proved by word of mouth only. When lands came to be conveyed to uses to be named in the feoffor's will, that will might be oral; and lands that could be devised at common law under name of local custom, but in fact where the old law had not been displaced by the feudal doctrines, might be devised orally. 2 § 217. Under the Statute of Wills 32 Henry VIII c. 1. The first statute of wills was intended simply to make lands devisable, and provided that they might be devised in writing, leaving the law as to wills of personalty un- changed. This statute was held to be satisfied by an unsigned writing, not containing the name of the testator, in the handwriting of another, and not itself intended to be final; as when a testator dictated his will to his scrivener, who took down rough notes to be drawn up in due form and submitted to the testator, and the testator died before the formal draft was made. 3 A large number i See opinion by Mansfield in Wynd- the oldest writer on the English law ham v. Chetwynd (1757), 1 Burrows of wills, writing about the end of the 414, 425, 4 Burns Eecl. L. 97, Abbott reign of Elizabeth. Swinburne Wills p 305. Part I g 11. 2 Distinctly so stated by Swinburne, 3 Swinburne Wills Part I § 11 ; An" 141 FORMALITIES REQUIRED IN MAKING WILLS. § 218 of decisions under this statute are reviewed in Butler and Baker's Case (1592) ;* and to his report of the case Lord Coke appends some' wholesome advice, naming sev- eral matters that should be observed, in view of the doubts that arose and the perjuries that had been attempted. §218. Why Statute of Frauds Was Enacted. Finally, a case arose in which the opportunities for fraud under the law as it then stood were strongly impressed on the bench and bar. A young woman had married a rich old man, and afterwards behaved very indiscreetly; and after he was dead she set up an alleged oral will, said to have been made in extremis, giving her the whole estate, and revoking a written will made three years before, by which 3,000 pounds were given to charitable uses. The oral will was proved by nine witnesses, and was allowed by the prerogative court; but on appeal to the delegates a trial was had in the court of king's bench, and a most shocking conspiracy was discovered. It appeared that most of the witnesses for the oral will had committed perjury in giving their testimony, and the widow was guilty of subornation of perjury. 5 On this occasion Chancellor Nottingham is said to have declared that "he hoped to see one day a law that no will should ever be revoked but by writing." The following year (1677) the celebrated Statute of Frauds, 29 Car. II, c. 3, was enacted, it is said as a result of this case. As all of the present requirements as to formalities arise from this statute and others made in amendment of it, from which the statutes in most of the states are largely copied, with some minor alterations, what re- mains to be said on this subject is simply an exposition of the terms of th§se statutes. derson C. P. Eep. c. 85 ; Brown v. Mordaunt, stated In a note in 4 Ves. Sackville (1553), 1 Dyer 72a. See also 196, Abbott p. 344, and reviewed In Eossetter v. Simmons (1821), 6 Serg. the opinion of Ch. Kent in Prince v. & E. (Pa.) 452. Hazelton (1822), 20 Johns. (N. T.) 4 3 Coke Eep. 25, 31b. 502, 11 Am. Dec. 307, Mechem 40, Ab- G Tbe case referred to is Cole v. bott p. 275 ; Cassoday on Wills § 40. § 219 WILLS. 142 2. FORMALITIES REQUIRED BY STATUTE OP FRAUDS AND SUB- SEQUENT ACTS. A. Requisites op Oral Wills.« §219. Forecast. All wills are either written or oral. I will first consider the requisites of oral wills, and what may be disposed of by them. § 220. Statute of Frauds, 29 Car. II, c. 3, § 18 (always cited as § 19). "And for prevention of fraudulent prac- tices in setting up nuncupative wills, which have been occasion of much perjury; be it enacted by the authority aforesaid, that from and after the aforesaid four and twentieth day of June, no nuncupative will shall be good where the estate thereby bequeathed shall exceed the value of thirty pounds that is not proved by the oaths; of three witnesses (at the least) that were present at the making thereof; nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present or some of them bear witness that such was his will, or to that effect; nor unless such nun- cupative will were made at the time of the last sickness of the deceased and in the house of his or her habitation 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." §221. Same, § 19 (always cited as § 20). "And be it further enacted that after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony or the substance thereof were committed to writing within six days after the making of the said will." §222. Same, § 22 (always cited as § 23). "Pro- • See notes 67 Am. St. Rep. 572-579, 20 Am. Dec. 44, 8 L. R. A. 40, 9 L. R. A. 829. 143 FORMALITIES BEQUIRED IN MAKING WILLS. § 223 vided always, that notwithstanding this act, any soldier being in actual military service, or any mariner or sea- man being at sea, may dispose of his moveables, wages, and personal estate as he or they might have done before the making of this act." § 223. Corresponding American Statutes. The corre- sponding provisions of the statutes of the several states and territories, from the latest editions available here, are cited below; and what is said hereafter as to the statutes concerning this subject is based on these provisions, so that the citations need not be repeated. 7 7 Alabama — Code (1896) §§ 4267, 4268, 4269, 4271. Arizona — Revised Statutes (1901) §§ 42.18, 4220, 4221. Arkansas — Sandell & Hill Dig. of Stat. (1894), §§ 7404, 7405, 7406, 7407. California — Civil Code (Pomeroy, 1901) §§ 1288, 1289, 1290. Colorado— Ann. Stat. (Mills 1891) §5 4654, 4671. Connecticut — General Statutes (1902), § 293. Delaware — Laws (1893) p. 636 § 5. District of Columbia — Compiled Sta- utes (1894) c. 70 §§ 29, 30, 31. Florida — Revised Statutes (1892) §§ 1799, 1800. Georgia — Code (1895) §§ 3349, 3350, 3352. Idaho — Revised Statutes (1902), § 2505. Illinois — Revised Statutes (Hurd 1899) c. 148 § 15. Indiana — Statutes (Thornton, 1897) §5 2798,2799. Indian Territory — Statutes (1899) SS 3576, 3577, 3578. Iowa — Code (1897) §§ 3272, 3273. Kansas — General Statutes (1901) §S 8007, 8008. Kentucky — Statutes (1899) §§ 4830, 4831. Louisiana — Civil Code (1900), Art 1576. Maine — Revised Statutes (1883), c. 74 S§ 18, 19, 20. Maryland — Public Gen. Laws (1888) Art. 93 § 318. Massachusetts — Public Statutes (1882) c. 127 f § 5, 6, 7. Michigan — Compiled Laws (1897) § 9267. Minnesota — General Statutes (1894) § 4427. Missouri — Revised Statutes (1899) §§4626,4627. Mississippi — Annotated Code (1892) §§ 4492, 4495. Montana — Civil Code (1895) § 1735. Nebraska — Compiled Statutes (1901) §§2642,2643. Nevada — Compiled Laws (1900) §§ 3075, 3077. New Jersey — General Statutes (1895), pp. 3759, 3760, §§ 11, 16. New Hampshire — Public Statutes (1901), c. 186, §§ 16, 17. New Mexico — Compiled Laws (1897), § 1950. New York — Revised Statutes (1896), p. 1876 §22. North Carolina — Revised Code (1855), c. 119 § 11. North Dakota — Revised Code (1899), § 3644. Ohio — Bates An. Stat. (1898), § 5991. Oklahoma — Statutes (1893), §§6170, 6174. Oregon — Hill An. Laws (1892), §§ 3079, 3080. Pennsylvania — Public Laws 1832 No. 135 § 11 ; Public Laws 1833 No. 249 §§7, 8; Same, P. & L. Dig. Stat. (1894), p. 1443, §§34, 35; p. 1458, §62. Rhode Island — General Laws (1896), c. 203 §§ 13, 20, 36. South Carolina — Revised Statutes (1893), §§2008, 2009, 2012; Turner, ex parte, 24 S. Car. 211. § 224 WILLS. 144 § 224. Who May Make Oral Wills. From these stat- utes it appears that oral wills are never allowed in Con- necticut, Louisiana, and Wyoming; 1 can be made only by soldiers in actual service, and mariners at sea, in Kentucky, Maryland, Massachusetts, Minnesota, New York, Oregon, Khode Island, Virginia, and West Vir- ginia; only by soldiers when in actual service, or mariners at sea, in either case in peril and fear of death, or by anyone in fear of death from an injury received the same day, in California, Montana, North Dakota, Oklahoma, and South Dakota; and only by one in peril and fear of death from an injury received within twenty-four hours, in Utah. 2 In several other states the amount that can be disposed of by oral will is limited except in the case of soldiers and mariners, as we shall presently see; but in nearly half of the states, anyone in his last sickness may dispose of personal property to any amount by an oral will. From which it will be seen that the little notice writers give to such wills is due, not so much to the abolition of oral wills, as to the fact that few men are so rash as to intrust their testaments to the memory of human witnesses. § 225. Testamentary Capacity and Intent are as essen- tial to nuncupative as to written wills, and the proof of the intent must be much clearer. Declarations as to the disposition he would like to make, had made, or intended to make are not enough. It must appear that he intended the words spoken to be his will. 8 It has often happened Bouth Dakota — Annotated Stat. Wyoming — Revised Stat. (1899), (1901), §|4499, 6921. 5 4568. Temu — Sayles Civil Stat. (1900), l Stone's Appeal (1901), 74 Conn. Arts. 5338, 5339, 5341, 5342. 301, 50 Atl. 734. Utah — Revised Stat. (1898), SI 2747, 2 One engaged in farming could 2748. not make an oral will nnder these stat- Termont— Statutes (1894), §5 2350, utes. Ray v. Wiley (1902), 11 Okl. 2351. 720, 69 Pac. 809. Virginia— Code (1887), §2516. . 8 Wiley's Estate (1898), 187 Pa. St. Washington — Balllngton Code & 82, 40 Atl. 980, 67 Am. St. Rep. 569 ; Stat (1807), §§4605,4606. Lucas v. OoS (1857),' 33 Miss. 629; West Virginia — Code (1899), c. 77 Andrews v. Andrews (1873), 48 Miss. 1 5. 220; Dorsey v. Sheppard (1841), 12 Wisconsin— Statutes (1898), §§2292, Gill & J. (Md.) 192, 37 Am. Dec. 77; 2293. Morgan v. Stevens (1875), 78 III. 287. 145 FORMALITIES REQUIRED IN MAKING WILLS. § 226 that oral directions for the preparation of a written will have been given in the presence of the required number of witnesses to make an oral will, and the testator has died before the formal draft was executed, or the formal will was not properly executed. Such instructions have in several cases been held sufficient as an oral will. 9 But this is denied by the later cases, and with better reason, for the deceased did not intend the words spoken to be his will. 10 § 226. What May be Given. Statutes simply provid- ing that the testator may dispose of his "property" or "estate" by oral will are construed to allow only per- sonal property to be thus given, and all devises of land are void unless complying with the statute as to written wills. 11 Devises of real property to any amount are expressly allowed by statute in Georgia and New Mex- ico. 12 In all the other states and territories all devises of land must be in writing. A gift of the income of land to be realized after the death of the testator, 13 or of a term of years to be carved out of the fee, 14 would be a devise of land and void unless in writing. 9 Mason y. Dunman (1810), 1 Munf. McLeod v. Dell (1861)", 9 Fla. 451; (Va.) 456; Offutt v. Offutt (1842), 3 Pierce v. Pierce (1874), 46 Ind. 86; B Mon. (42 Ky.) 162, 38 Am. Dec. McCans v. Board (1833), 1 Dana (32 183; Phoebe v. Boggess (1844), 1 Ky.) 340; Palmer v. Palmer (1834), Gratt. (42 Va.) 129, 42 Am. Dec. 543 ; 2 Dana 390; Campbell y. Campbell Boofter y. Rogers (1850), 9 Gill (Md.) (1870), 21 Mich. 438. 44; WeemB v. Weems (1862), 19 Md. To corroborate claim to land. Evi- 334; Goodman y. Goodman (1755), 2 dence of a nuncupative will is compe- Lee 109, 6 Eng. Ecc. 56. tent to corroborate a claim of a prior 10 Stamper y. Hooks (1857), 22 Ga. oral gift of the land accompanied by 603; Knox y. Richards (1900), 110 delivery of possession. Wooldridge y. Ga. 5, 35 S. E. 295; Grossman Estate Hancock (1888), 70 Tex. 18, 6 S. W. (1898), 175 111. 425, 51 N. E. 750, 67 818; Page y. Page (1843), 2 Rob. Am. St Rep. 219; Donald y. Unger (Va.) 424. (1897), 75 Miss. 294, 22 South. 803; 12 Georgia Code (1895), §3352; New Dockum v. Robinson (1853), 26 N. Mex. Comp. Laws (1897), § 1950. Oral Hamp. 372; Hebden Will (1869), 20 devises were once allowed in Ohio, but N. J. Eg, 473; Male's Case (1892), 49 the law is now changed. Ashworth v. N. J. Eq. 266, 24 Atl. 370; Porter's Carleton (1861), 12 Ohio St. 381. Appeal (1849), 10 Pa. St. 254. See is Page y. Page (1843), 2 Rob. (Va.) also note 36 Am. Dec. 316 et seq. 424; Davis Will (1899), 103 Wis. 455, n Smithdeal v. Smith (1870), 64 N. 79 N. W. 761. As to what is land see Car. 52; Sadler v. Sadler (1882), 60 post §243. Miss. 251; Moffett v. Moffett (1887), l* See post § 243, note. 67 Tex. 642, 4 S. W. 70. See also: 10 § 227 WILLS. 146 §227. "Nuncupative." In Louisiana nuncupative is a term used to designate published as distinguished from secret wills; 15 but in the English law, and in all the other states of the United States except Louisiana, it means simply an oral will, 16 though it is usually defined as an oral will executed in the last sickness, etc. The etymology signifies that it is a statement by proclamation. § 228. "Where Estate Thereby Bequeathed Shall Ex- ceed the Value." It will be seen that an estate of any amount could be passed by nuncupative will under the Statute of Frauds; but if the amount exceeds thirty pounds the requirements of the statute must be obeyed. Such is still the law in several states, though the amounts vary. The requirements must be observed if the amount is over £30 in the District of Columbia, $100 in Maine, $150 in Nebraska, $80 in New Jersey, $100 in New Hamp- shire, $200 in North Carolina, $100 in Pennsylvania, $50 in South Carolina, $30 in Texas, $200 in Washington, and $150 in Wisconsin. The statute applies to all amounts, and there is no limit to the amount that may be bequeathed by an oral will, in Florida, Georgia, Idaho, Illinois, Kansas, and Ohio. The amount that soldiers and mariners may dispose of by oral will while privileged is nowhere limited, even where no others may make oral wills, except in the states fixing the limit in all cases at $1,000; which are California, Montana, Nevada, North Dakota, Oklahoma, South Dakota, and Utah. Unless made by a soldier in service or a mariner at sea, an oral will is never good if the amount bequeathed exceeds $500 in Alabama, $50 in Arizona, $500 in Arkansas, $200 in Delaware, $100 in Indiana, $500 in Indian Territory, $300 in Iowa, $300 in Michigan, $200 in Missouri, $100 in Mis- sissippi, and $200 in Vermont. 17 Where the amount be- queathed exceeds the limit, it would seem as though the ib Frith v. Pearce (1901), 105 La. it See statutes cited ante under § 186, 29 So. 809. 223. 16 Swinburne Wills, part 1, § 11. 147 FORMALITIES REQUIRED IN MAKING WILLS. § 229 whole will must fail, 18 but it is valid as to the personalty, though intended to pass realty also, which could be devised only by writing. 19 § 229. ' 'That is Not Proved by the Oaths. ' ' The stat- utes will be seen to require^ not only that the oral wills shall be declared in the hearing of so many witnesses, but also proved by their oaths; from which it results that the oral will well executed may fail by reason of the death of one of the witnesses, his failure to hear what was said, a lapse of his memory, or inability to procure his attend- ance to prove the will. 20 Only the bequests as to which the witnesses agree can be allowed, 21 and a disagreement between them may be fatal to the whole. 22 §230. "Of Three Witnesses at the Least." Three witnesses are still required to prove oral wills in Arizona, District of Columbia, Florida, Georgia, Maine, Nebraska, New Jersey, New Hampshire, South Carolina, Texas, and "Wisconsin. There is no provision as to the number of witnesses in Alabama, Idaho, Maryland, Massachusetts, Minnesota, New York, Oregon, Ehode Island, Vermont, Virginia, and West Virginia. 23 In all the other states two witnesses are required. 23 Unlike written wills, an oral will is liable to fail by witnesses becoming incompe- tent, though competent when the will was made, since it must be proved by them; and it is also held that they must be competent when the will is made, that they would be incompetent if benefited by the will, that the statute is Strieker v.. Oldenburgh (1874), 39 Estate (1898), 187 Pa. St. 82, 40 Atl. Iowa 653. 980, 67 Am. St. Rep. 569. The matter was argued again in Mul- 21 Portwood v. Hunter (1846), 45 ligan v. Leonard (1877), 46 Iowa 692, Ky. (6 B. Mon.) 538; Hammett v. and without referring to the former Shanks (1874), 41 Md. 201; Mulligan decision or any statute, the court sus- v Leonard (1877), 46 Iowa 692, 694. tained the will as to the sum within 22 Wiley's Estate, ubi Bupra ; Bolles the limit. The provision for saving v. Harris (1877), 34 Ohio St. 38; the part may not have been in the Mitchell v. Vickers (1857), 20 Tex. code then. 377. 19 Lake v. Warren (1868), 34 Conn. 23 See statute cited ante §223. 483; Mulligan v. Leonard (1877), 46 There being no provision, two witnesses Iowa 692; Sadler v. Sadler (1882), 60 were required except to prove wills of Miss. 251. soldiers and sailors. Johnson v. Glass- 20 Phillips V. St Clements Danes cock (1841), 2 Ala. 218, 243. (1704), 1 Eq. Cas. Abr. 404; Wiley's § 231 WILLS. 148 making void bequests to necessary witnesses applies only to written wills, and that they cannot become competent by releasing. 24 § 231. "That Were Present at the Making Thereof." It is not enough that the deceased told one witness at one time, and told another at another time. They must testify to the same declaration made in their joint pres- ence. 28 § 232. " Did Bid the Persons Present or Some of Them Bear Witness." 26 This requirement to prove a request to bear witness was to remove all doubt that the words were spoken with a testamentary intent. No such call need be shown under statutes containing no such require- ment. 27 There is such a requirement in the present stat- utes in .Alabama, Arizona, Arkansas, California, Colo- rado, Delaware, Florida, Georgia, Illinois, Indiana, Indian Territory, Kansas, Kentucky, Maine, Missouri, Montana, Nebraska, Nevada, New Jersey, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Washington, and Wisconsin. 28 §233. "Or to That Effect." The Clause "or to that effect" was added lest it should be thought that any formal words must be used in the call. This saving clause or a similar one is found in all the statutes where a call is required. The courts insist on something equivalent to a call being made. 29 No call need 'be made to bear witness to the terms of the will. It is the fact that the testator is 24 Gill's Will (1834), 2 Dana (33 Contra: Portwood t. Hunter (1846), Ky.) 447; Vrooman v. Powers (1890), 6 B. Mon. (45 Ky.) 538. 47 Ohio St. 191, 8 h. R. A. 39, 24 N. 26 See note 81 Am. Dec. 230. E. 267 ; Haus v. Palmer (1853), 21 Pa. 2T Mulligan v. Leonard (1877), 46 St. 296. Contra: Brayfleld v. Bray- Iowa 692. field (1811), 3 H. & J. (Md.) 208 J 28 See statutes cited under §223, Weems v. Weems (1862), 19 Md. 334. ante. 25 Wester v. Wester (1857), 5 Jones But see the next section (§233) h. (50 N. Car.) 95; Tarnall Will modifying the above. (1833), 4 Rawle (Pa.) 46, 26 Am. Dec. 29 Biddle v. Biddle (1872), 36 Md. 115; Tally v. Butterworth (1837), 18 630; Wiley's Estate (1898), 187 Pa. Tenn. (10 Terger) 501 ; Weeden v. St. 82, 40 Atl. 980, 67 Am. St. Bep. Bartlett (1818), 6 Munf. (Va.) 123. 569; Grossman Estate (1898), 175 111. 149 FORMALITIES REQUIRED IN MAKTNG WILLS. § 234. then making his will, that the witnesses must be bid to notice; and that cannot be inferred from a request to listen to what he says. 80 Yet no formal request is neces- sary. He need not call any by name. 31 Probably ges- tures if sufficiently clear may help out the words. 32 "When asked what disposition he would make of his property, the deceased said, "All to my wife, that's agreed upon," and turned towards his father, who replied, "Yes, yes;" whereupon the deceased added, "You see my father acknowledges it." This was allowed to be a good will. 33 This is an extreme case. Though but one need be called, the call must be proved by all. 34 §234. "Time of the Last Sickness." In the leading case of Prince v. Hazleton (1822), 35 Chancellor Kent argued, and was sustained by the court in holding, that, in view of the opportunities for fraud in making oral wills, the term "last sickness" in the statute must be con- strued to include only the last hours of the sickness ; that the last sickness is only when the person is in extremis. Other courts have generally followed this decision, hold- ing that nuncupative wills can be sustained only when made from necessity, or fear that consciousness might not remain long enough to make a written will. 36 It is no objection to the nuncupative will that the testator was 425, 51 N. E. 750, 67 Am. St. Eep. 219; Estate (1898), 187 Pa. St. 82, 40 Atl. Kelly v. Kelly (1849), 48 Ky. (9 B. 980, 67 Am. St. Eep. 569. Mou.) 553; Owen's Appeal (1875), 37 That all need not be called to bear Wis. 68; Scales v. Thornton (1903), witness see Smith v. Salter (1902), — Ga. — , 44 S. E. 857. Compare § 267 115 Ga. 286, 41 S. E. 621. post. 35 20 Johns. (N. Y.) 502, 11 Am. 30 Dawson's Appeal (1868), 23 Wis. Dec. 307, Kedf. Will Cas. 697, Mechem 69. 40, Abbott p. 275. 31 Baker v. Dodson (1843), 23 Tenn. 36 Scaife v. Emmons (1889), 84 Ga. (4 Humph.) 342, 40 Am. Dec. 650; 619, 10 S. E. 1097, 20 Am. St. Eep. Long v. Foust (1891), 109 N. Car. 383; Tarnall's Will (1833), 4 Eawle 114. (Pa.) 46, 26 Am. Dec. 115; Caroll v. 32Arnett v. Arnett (1862), 27 111. Bonham (1887), 42 N. J. Eq. 625, 9 247, 81 Am. Dec. 227. Atl. 371, 26 Am. L. Eeg. 568, 25 Cen. 33 Parsons v. Parsons (1823), 2 Me. h. J. 328; O'Neill v. Smith (1870), 33 298. See also: Parklson v. Parkl- Md. 569; Butt's Estate (1901), 200 son (1849), 12 S. & M. (20 Miss.) Pa. St. 549, 50 Atl. 171 ; Sykes v. Sykes 672. Contra: Scales v. Thornton (1830), 2 Stew. (Ala.) 364, 20 Am. (1903), — Ga. — , 44 S. E. 857. Dec. 40; Donald v. linger (1897), 75 34 Tarnall's Will (1833), 4 Eawle Miss. 294, 22 South. 803. (Pa.) 46, 26 Am. Dec. lip ; » Wiley's § 235 WILLS. 150 deluded by the hope of recovery till it was too late to make a written will, though warned by his physician. 37 On the other hand, it has been held that the will is not bad because the testator did live long enough after the nuncupation to have made a will in writing. 38 §235. "In the House of His Habitation, * * * or Taken Sick Being Away." Oral wills of others than sol- diers and sailors must still be made at the home of the deceased, unless he was taken sick while away, in Ala- bama, Arkansas, Georgia, Indian Territory, Maine, Mis- souri, Mississippi, Nebraska, New Jersey, New Hamp- shire, North Carolina, Pennsylvania, Texas, Washington and Wisconsin. 39 Under this provision a will made at a mill house owned by the deceased, and a mile from his home, was rejected. 40 A will made orally away from home, by one who left home while feeling unwell, but became much worse soon after and died before return- ing, was allowed. 41 §236. "After Six Months * * * No Testimony Shall be Received." It will be observed that the words did not have to be reduced to writing if the will was pro- bated within six months, 42 and might be probated after the six months had expired, if written within the time; 43 and such is the statute now in Alabama, District of Co- lumbia, Missouri, Mississippi, Nebraska, New Jersey, Texas, North Carolina, Pennsylvania, Washington and Wisconsin. 44 In several of the states I find no provision 87 Wiley's Estate (1898), 187 Pa. St. 40 Nowlin v. Scott (1853), 10 Gratt. 82, 40 Atl. 980, 67 Am. St. Eep. 569. (Va.) 64. 38 Bellamy v. Peeler (1895), 96 Ga. 41 Marks v. Bryant (1809), 4 Hen. 468, 23 S. B. 387; Harrington v. & Munf. (Va.) 91. Stress was laid on Steeles (1876), 82 111. 50, 25 Am. Eep. the fact that the word "surprised" had 290; Nolan v. Gardner. (1872), 54 been omitted from this statute. Tenn. (7 Heisk.) 215; Johnson v. 42 Marks v. Bryant (1809), 4 Hen. Glasscock (1841), 2 Ala. 218; Smith & Munf. (Va.) 91, 99. v. Salter (1902), 115 Ga. 286, 41 S. E. 43 Johnson v. Glasscock (1841), 2 621; Sadler v. Sadler (1882), 60 Miss. Ala. 218, 237; Haygood's Will Case 251. (1888), 101 N. Car. 574; Askin's Es- 39 See statutes ante §223. In South tate (1891), 20 D. C. (9 Mackay) 12; Carolina the will must be made in Gwin v. Wright (1848), 27 Tenn. (8 "the place where he or she shall die." Humph.) 640. Rev. St (1893), $2008. 44 See statutes cited ante §223. 151 FORMALITIES REQUIRED IN MAKING WILLS. § 237 on the subject; but in many of the states the words must be reduced to writing within the prescribed time in order to probate the will at all. In either case, the will fails entirely if the statute is not complied with. Nothing will excuse. 45 The provision that no testimony shall be re- ceived to prove the will after the prescribed time applies only to proving the will on probate of it. Being probated in time, it may be proved afterward. 46 Six months is the time under most statutes, in some states reckoned from the speaking, in others from the death of the testa- tor; in some to the offering for probate, in others to the proving. 47 §237. "Committed to Writing Within Six Days." The time within which the writing may be made varies. It must be made within six days after the words were spoken in Alabama, District of Columbia, Florida, Mis- sissippi, New Jersey, New Hampshire, Pennsylvania, South Carolina, Texas and Wisconsin; in ten days in Illi- nois, Indian Territory, Kansas and Ohio; in fourteen days in North Carolina; in fifteen days in Arkansas and Indi- ana; in thirty days in California, Georgia, Missouri, Mon- tana, Oregon, South Dakota and Utah; in sixty days in Kentucky; and in a reasonable time after the death in Colorado. In a number of states the writing must be filed when application is made for probate. 48 What the writ- ing must contain is not agreed. Certainly it must set out the substance of all the testamentary words used by the deceased. 49 It has been held that it need state no more. 50 But on the other hand it is held that it must set out all 45 Martinez v. Martinez (1898), 19 48 See statutes cited ante § 223. Tex. Civ. App. 661, 48 S. W. 532. 49 Bolles v. Harris (1877), 34 Ohio That more than six months must be St. 38. consumed before trial can be had on A letter written shortlj after to in- appeal does not enable proof after that form a friend of the death and of the time. Newman v. Colbert (1853), 13 nature of the will made, but not pur- Ga. 38. porting to state the words of the de- 46 George v. Greer (1876), 53 Miss, ceased, would not do. Taylor's Ap. 495. (1864), 47 Pa. St. 31, Abbott p. 289. 47 See statutes cited ante 8 225. bo Welling v. Owings (1851), 9 Gill Askin's Estate (1891), 20 D. C. (9 (Md.) 467. Mackay), 12; Newman v. Colbert (1853), 13 Ga. 38. § 238 WILLS. 152 the facts that must be proved— that the deceased asked someone present to bear witness, that the statement was made in the last sickness, &c. 81 § 238. "Any Soldier Being in Actual Military Service or any Mariner or Seaman Being at Sea." Soldiers in service and seamen at sea might dispose of their personal property to any amount under the statute of 29 Car. II c. 3 without observing the forms required of other per- sons, and the same privilege is allowed them now by the statutes of Alabama, Arizona, Arkansas, District of Co- lumbia, Indian Territory, Maine, Michigan, Missouri, Mississippi, Nebraska, New Jersey, New Hampshire, Pennsylvania, South Carolina, Texas, Vermont, Washing- ton and Wisconsin. In Indiana and Iowa these must ob- serve the requirements but are not limited as others are in the amount they may thus dispose of. In Kentucky and Oregon no others can make such wills, and these only on conditions named. No conditions are imposed, but no others can make oral wills, in Maryland, Massachusetts, Minnesota, New York, Rhode Island, Virginia and West Virginia. These can make wills orally only when in fear and peril of death in California, Montana, and the Da- kotas. 62 All persons in military service before the enemy are privileged as soldiers, for example a surgeon attend- ing a regiment in the service of the East India Com- pany. 83 A soldier is not privileged when mustered into the service; 84 nor yet while quartered at the barracks not in the face of the enemy, whether in his own country or in a colony; 88 nor while at home on a furlough. 56 He is privileged while on a military expedition, whether in battle, march, camp, or hospital. 57 Bi Taylor's Appeal (1864), 47 Pa. St. 86. But see Vandezeur v. Gordon 31, Abbott p. 289; Askin's Estate (1866), 39 Vt. 111. (1891), 20 D. C. (9 Mackay) 12. 65 Drummond v. Parish (1843), 3 52 See statutes cited ante g 223. Curt. 522, 7 Eng. Ecc. 496 ; White v. 53 Donaldson's Goods (1840), 2 Curt. Bepton (1844), 3 Curt 818, 7 Ens. Ecc. 386, 7 Eng. Ecc. 149, Abbott p. 272. 608. The statute does not enable an in- 56 Smith's Will, 6 Phila. 104. feint to make a will. Goodell v. Pike st Leathers v. Greenacre (1866), 53 (1867), 40 Vt. 319. Me. 561; Gould v. Safford (1866), 39 64 Pierce V, Pierce (1874), 46 Ind. Vt. 498, Eedf. Will Cas. 694. 153 FORMALITIES REQUIRED IN MAKING WILLS. § 239 §239. The Privilege as a Seaman belongs to the whole service, from the cook to the commander in chief, 98 in the government service or on a merchant boat. 69 The seaman is "at sea" within the meaning of the statute from the time he goes on board for the voyage, though still fast to the dock, 60 in a river and above tide water. 81 The privilege continues while at anchor in a port on the way, 62 even while the sailor is temporarily on shore; 63 or while stationed at a port in the coast defense; 64 but the commander of a fleet was held not to be privileged while stationed at a foreign port, and living in a house on shore. 65 A navy surgeon going home, by ship, on sick leave, as a passenger, was held to be a seaman at sea, 66 but a captain on passage to take charge of his boat was held not to be. 67 B. Requisites of Written Wills. § 240. Statute of Frauds 29 Car. II, c. 3, § 5. "And be it further enacted by the authority aforesaid, that from and after the said four and twentieth day of June All de- vises and bequests of any lands or tenements, devisable either by force of the Statute of Wills or by this statute or by force of the custom of Kent or the custom of any borough or any other particular custom, shall be in writ- ing and signed by the party so devising the same or by Or on way from one regiment In ao Rae's Goods (1891), L. E. 27, Ir. service to another. Herbert v. Her- Ch. Div. 116. bert (1855), 1 Deane Ecc. 11. ei Patterson's Goods (1898), 79 Law 68 Hubbard v. Hubbard (1853), T. Rep. 123. (captain and owner), 8 N. T. 196, «2 Hubbard v. Hubbard (1853), 8 N. Mechem 38, Abbott 273, Chaplin 432, *. 196, Mechem 38, Abbott 273, Chap- affirming 12 Barb. 148; Thompson ex lin 432; Thompson ex parte (1856), 4 parte (1856), (cook), 4 Bradf. (N. Brad. (N. Y.) 154. T.) 154; Morrell v. Morrell (1827), 63 Lay's Goods (1840), 2 Curt. 375, (mate), 1 Hagg. 51, 3 Bng. Ecc. 20; T Eng. Eec. 144. Hayes' Goods (1839), (purser), 2 Curt. 64 McMurdo's Goods (1867), L. R. 1 338, 7 Eng. Ecc. 135 ; Rae's Goods P- & D. 540, 17 L. T. Rep. 393. (1891), (staff-surgeon), L. R. 27, Ir. 65 Earl of Euston v. Seymour (1839), Ch. Div. 116 ; Saunders's Goods (1865), mentioned in 2 Curt. 338, 7 Eng. Ecc. (surgeon), L. R. 1 P. & D. 16. 135. s» Milllgan's Goods (1849), 2 Rob. 66 Saunders's Goods (1865), L. R. 1 Ecc. 108. See also the cases above P. & D. 16, 13 L. T. Rep. 411. cited. 6T Warren v. Harding (1852), 2 R. I. 133. §241 WILLS. 154 some other person in his presence and by his express directions, and shall be attested and subscribed, in the presence of the said devisor, by three or four credible wit- nesses or else they shall be utterly void and of none effect." § 241. American Statutes. The present statutes in all the states and territories of the United States, touching this matter are cited below; and their various provisions will be stated hereafter without further citation. 68 68 Alabama — Code (1896), §§ 4263, 4264. Arizona — Revised Statutes (1901), § 4214. Arkansas — Sandell & Hill Dig. Stat. (1894), §§ 7392, 7393. California^- Civil Code (1901), §§ 1276, 1278. Connecticut — General Statutes (1888), § 538. Colorado — Mills Ann. Stat. (1891), § 4653. Delaware — Laws (1893), p. 635, ch. 84, § 3. District of Columbia — Compiled Statutes (1894), c. 70, § 3. Florida — Revised Statutes (1892), 1795. Georgia— Code (1895), §§ 3272, 3274. Hawaii- Civil Laws (1897), § 2124. Idaho— Revised Statutes (1887), § 5727. Illinois — Hurd Statutes (1901), t. 148, § 2. Indiana — Thornton Statutes (1897), § 2797. Indian Territory — Statutes (1899), §§ 3564, 3565. Jo wa— Code (1897), § 3274. Kansas — General Statutes (1901), §§ 7938, 7949. Kentucky — Statutes (1899), § 4828. Louisiana — Civil Code (1900), Arts. 1575-1601. Maine — Revised Statutes (1883), c. 74, §§ 1, 2. Maryland— F\ib. Gen. Laws (1888), Art. 93, § 310. Massachusetts — Public Statutes (1882), c. 127, S§ 1, 2. Michigan — Compiled Laws (1897), § 9266. Minnesota — General Statutes (1894), § 4426. Mississippi — Code (1892), § 4488. Missouri — Revised Statutes (1899), § 4604. Montana — Civil Code (1895), §§ 1723, 1726. Nebraska — Compiled Statutes (1901), § 2641. Nevada — Compiled Laws (1900), § 3073. New Hampshire — Public Statutes (1901), c. 186, § 2. New Jersey — General Statutes (1896), p. 3760, § 22. New Mexico — Compiled Laws (1897), §§ 1948, 1950, 1952. New York — 2 Revised Statutes (1896), tit. 63, §§ 40, 41. North Carolina — Revised Code (1855), c. 119, § 1. North Dakota — Revised Code (1899), §§ 3648, 3650, 3681. Ohio— Bates Statutes (1898), § 5916. Oklahoma — Statutes (1893), §8 6173, 6175. Oregon — Hill Laws (1892), §§ 3069, 3070. Pennsylvania — Pepper & L. Dig. (1894), p. 1440, § 32; Pub. Laws (1833), 249, § 6. Bhode Island — General Laws (1896), c. 203, | 13. South Carolina — Revised Statutes (1893), § 1988. South Dakota — Ann. Statutes (1901). §§ 4502, 4504. Tennessee — Code (1896), § 3895. Texas — Sayles Civil Statutes (1900), § 5335. Utah — Revised Statutes (1898), §§ 2735, 2737, 2739. Vermont — Statutes (1894), §§ 2349, 2353. Virginia— Code (1887), § 2514. Washington — Bal. Codes & Statutes (1897), § 4595. 155 FORMALITIES REQUIRED IN MAKING WILLS. § 242 JL "ALL DEVISES • • • OF ANY LANDS OR TENEMENTS." § 242. Written Wills of Personalty Unaffected. The Statute of Frauds made no requirements as to written wills of personalty, thus allowing such property to be dis- posed of after the statute by any written will that would have been good before the statute. And such is the law to this day in Colorado, the District of Columbia, and Tennessee. 69 But in all the other states and territories the same requirements must be observed in making writ- ten wills of either realty or personalty. Eeal property to any amount may be devised by an oral will in Georgia or New Mexico, 70 but in all the other states and territories all devises must be in writing. § 243. What is Land. A charge upon land to pay a money legacy, 71 or a devise of profits to issue out of lands after the death of the testator, 72 or a term for years to be carved out of the estate, 73 could not be made without com- plying with the statute ; because either of these would be devising a part of the fee itself. But a term for years in esse and owned as a chattel, would be neither lands nor tenements, and could be bequeathed without complying with the statute. 74 b. "SHALL BE IN WRITING." § 244. Scope Note. The form of the instrument and the testamentary intent having been already considered, 75 West Virginia — Code (1899), c. 77, Lean v. McLean (1846), 25 Tenn. (6 § 3. Humph.) 452], and not subscribed by Wisconsin — Statutes (1898), § 2282. any of the witnesses. Johnson v. Fry Wyoming — Revised Statutes (1899), (1860), 41 Tenn. (1 Cold.) 101; 5 4568. Franklin v. Franklin (1891), 90 Tenn. 69 See statutes just cited. Where 44, 16 S. W. 557. such is the law, a written will intended to Georgia Code (1895), § 3352 ; New to pass realty and personalty is good as Mexico Comp. Laws (1897), § 1950. to the personalty (Devecmon v. Devec- 71 Winslow, Appellant (1817), 14 mon (1875), 43 Md. 335; Vestry v. Mass. 422 ; Marston v. Marston (1845), Bostwick (1896), 8 D. C. App. Cas. 17 N. Hamp. 503, 43 Am. Dec. 611. 452; Orgain v. Irvine (1897), 100 72 Davis Will (1899), 103 Wis. 455, Tenn. 193, 43 S. W. 768), unless the 79 N. W. 761. statute expressly provides otherwise 73 Whitchurch v. Whitchurch (1724), [Kendall v. Kendall (1835), 41 Mass. 2 P. Wms. 236. (24 Pick.) 217], though not in the 74 Devecmon v. Devecmon (1875), 43 handwriting of the testator, not signed Md. 335, 346. by him nor by anyone for him [Mc- 75 See ante, $§ 58-74. § 245 WILLS. 156 and the degree of certainty required and the rules for ascertaining the intention being reserved for future com- ment, 78 it will be necessary under this head to consider only the language used, the method of making the impres- sion, the materials on which it may be made, and the necessary connection if written on separate sheets. §245. Language. Wills are always probated in the language of the court, 77 but may be written in any lan- guage which the testator understands, or in a language not understood by him if so explained that he understands its import before executing. 78 Men are presumed to un- derstand the contents of instruments executed by them; and the presumption has been applied in the case of wills written in a language the testator did not understand; 79 but other courts have refused to indulge the presumption in such cases, and have refused probate for want of evi- dence that the testator knew the contents of the will. 80 § 246. In Pencil, Print, or Typewriting. The prudent testator will write out his whole will in ink with his own hand, that there may be no question of the genuineness of the whole, or of provisions inserted without his knowl- edge or understanding; but the statutes requiring wills to be in writing are fully satisfied by printing from plates or type, 81 by typewriting, or by writing made with a lead pencil. 82 § 247. Material Written on. The statutes make no re- strictions as to the material to be written on; from which 76 See post, ch. XIV-XVII. si Though the statute provide that It 77 Translations. If in a foreign Ian- may be written or typewritten. Roush guage, the original is attached to the v. Wenzel (1898), 15 Ohio C. C. 133. translation. Probated translation held And see Henshaw v. Foster (1830), conclusive. Caulfleld v. Sullivan (1881), 9 Pick. (26 Mass.) 312, and Temple v. 85 N. T. 153, 161. Contra. Cliff's Mead (1832), 4 Vt. 535, in which Trusts (1892), 2 Ch. Div. 229. statutes requiring votes to be written 78 Walter's Will (1885), 64 Wis. 487, were held to be satisfied by print. 25 N. W. 538, 54 Am. Rep. 640. Not so 82 Myers v. Vanderbelt (1877), 84 under the Louisiana Civil Code. Gon- Pa. St. 510, 24 Am. Rep. 227 ; Tom- zales v. Gonzales (1839), 13 La. 104. linson's Estate (1890), 133 Pa. St. 79Hoshauer v. Hoshauer (1856), 26 245, 19 Atl. Rep. 482, 19 Am. St. 637; Pa. St. 404. Philbrick v. Spangler (1860), 15 La. so Miltenberger v. Mlltenberger An. 46. (1883), 78 Mo. 27, 8 Mo. App. 306. Presumption as to Intention. A will 157 FORMALITIES REQUIRED IN MAKING WILLS. § 248 any material capable of retaining the impression would seem to be sufficient. A will has been denied probate be- cause written on a slate; 83 but the correctness of the de- cision may well be doubted. 84 § 248. Loose Sheets. All the sheets on which the will is written should be securely bound together before it is executed, that there may be no doubt as to what is a part of it; and, as a further precaution against question as to any sheet being fraudulently removed and another sub- stituted, it is prudent to have the testator sign each sheet, or, better still, have the whole written on one sheet. But the statutory requirements for writing, signing, and sub- scribing witnesses, are fully satisfied by a will written on several disconnected sheets, only one of which is signed by either the testator or witnesses, the connection being revealed only by the context. 86 Though the sheets need signed in pencil was sustained against the objection that the signing was not intended as final In Harris v. Pue (1874), 39 Md. 535. Writings in pen- cil have been rejected on the ground that they were probably only delibera- tive and there was no proof to the contrary. Adams, Goods of (1872), L. E. 2. P. & D. 367 ; Eymes v. Clarkson (1809), 1 Phillim. 22, 35. But see Dyer, Goods of (1828), 1 Hagg. 219, 3 Eng. Ecc. 92. 83 Reed v. Woodard (1877), 11 Phila. (Pa.) 541. 84 See Ellis v. Secor (1875), 31 Mich. 185, 18 Am. Rep. 178. 85 Martin v. Hamlin (1850), 4 Strobh. L (S. Car.) 188, 53 Am. Dec. 673; Woodruff v. Hundley (1900), 127 Ala. 640, 29 South. 98, 85 Am. St. Rep. 145; Ela v. Edwards (1860), 82 Mass. (16 Gray) 91, 99 ; Burnham v. Porter (1852), 24 N. Hamp. 570, 581; Ginder v. Farnum (1848), 10 Pa. St. 98; Wi- koff's Appeal (1850), 15 Pa. St. 281, 53 Am. Dec. 597; Grubb's Estate (1896), 174 Pa. St. 187, 34 Atl. 573; Matter of Snell (1900), 32 N. T. Misc. 611, 67 N. T. Supp. 581. But see Whitney, Matter of (1897), 153 N. T. 259, 47 N. E. 272, 60 Am. St Rep. 616. The signatures of the testator and witnesses may be on a piece of paper bearing no other writing and pasted onto the end of the will. Cook v. Lambert (1863), 3 Sw. & Tr. 46, 11 W. R. 401, 9 Jur. N. S. 258, and see Brad- dock, Goods of (1876), L. R. 1 P. D. 433. Why not Require It. "It would be a dangerous rule to say that all wills must be written on one continuous sheet of paper, or that they must necessarily be tied or fastened together with tape and a waxen or other seal. The state of society, and the condition of learn- ing among our people generally, and the facilities for writing and penman- ship and clerical skill, very different standards of neatness and proficiency exist in different communities, and with different individuals, touching the preparation of such documents ; and there is no known rule as to any pre- cise manner in which such papers shall be bound or attached together, or re- quiring a will to be written all on one sheet. Controversy is less liable to arise, if the document is neatly, prop- erly, and "securely fastened together before the testator and witnesses Bign it; but it is by no means essential." Jones v. Habersham (1879), 63 Ga. 146, 157. § 249 WILLS. 158 not be fastened together, they must all be present when the will is executed; but that fact will usually be pre- sumed in the absence of proof or circumstances indicating the contrary. It is a question for the jury. 86 § 249. Incorporation by Reference. 87 There is an ex- ception to the rule that the whole will must be present. 88 Any paper in existence when the will is executed, and in it referred to as being in existence, is treated as incorpo- rated into the will, in so far as that is necessary to give full effect to the desire of the testator as expressed in the will. 89 This rule seems never to have been questioned except in New York and Connecticut; 90 and the denial of it there appears to put the courts of those states into the inconsistent position, of denying the rule and yet giving it effect in the common instance of a will invalid for want of due execution, but made good by reference to it in a duly executed codicil. 91 § 250. Proof Essential to Incorporation. To estab- lish a separate writing as part of a will in this manner, three things must appear on the face of the will, and two others must be shown by extrinsic proof. First, on the face of the will: 1. There must be a distinct reference to such writing, so explicit, it has been held, as to identify it beyond doubt; 92 but much less has often been held suf- ficient, 93 and parol evidence is of necessity received to 88 Bond v. Seawell (1765), 3 Burr. 130 Mass. 91, 39 Am. Eep. 433, 2 Am. 1773 ; Barnewall v. Murrell (1895), 108 Pro. Eep. 18, with notes. In Baker's Ala. 366, 18 South. 831 ; Gass v. Gass Appeal (1884), 107 Pa. St. 381, 52 Am. (1842), 22 Tenn. (3 Humph.) 278. Rep. 478, Judge Clark traces the his- The will is presumed to have been in tory of the rule from Hahergham v. the same condition when executed as it Vincent (1792), 2 Ves. Jr. 204, 223,' was when found after the testator's as the leading case, death. Rees v. Rees (1873), L. R. 3 so Phelps v. Robbins (1873), 40 Conn. P. & D. 84. See also Harp v. Parr 250, 272; Booth v. Baptist Church (1897), 168 111. 459, 472, 48 N. B. 113. (1891), 126 N. T. 215, 28 N. E. 238. 87 See note 4 Pro. R. A. 444 ; and 81 See the article on this point by article by Prof. Chaplin, 2 Col. Law. Prof. Chaplin in 2 Columbia L. Rev. Rev. 148-152 (1902). (March, 1902), 148. ssWilley's Estate (1900), 128 Cal. 92 Young's Estate (1899), 123 Cal. 1, 7, 60 Pac. 471. 337, 342, 55 Pac. 1011. 89 1 Bigelow's Jarman *98. The de- 93 See Fickle v. Snepp (1884), 97 cisions are reviewed at length in New- Ind. 289, 49 Am. Rep. 449. ton v. Seaman's Friend Society (1881), 159 FORMALITIES REQUIRED IN MAKING WILLS. § 251 identify the writing. 94 2. The reference must indicate that the writing has already been made, that is, must speak of it as then existing. It is not enough that the writing was in fact made before the will; the will must speak of it as if then made. 95 3. It can be given effect only in case, and to the extent, that such appears from the face of the will to have been the wish of the testator. 96 Second. "When the writing is offered, it must be shown: 1, that it is the very writing referred to in the will; 97 and, 2, that it was in fact made before the will was executed. 98 It is clear that if a writing made afterwards could be re- ceived, the testator might create in himself a power of disposing of his property by will without complying with the statute of wills. § 251. Nature of Writing Incorporated. The nature of the writing referred to is not material. It need not be testamentary, may be a deed, note, or mere memorandum. It need not be signed, nor made by the testator. It does not matter that it was invalid for the purpose for which it was made, as a note invalid for want of delivery or con- sideration. 99 But since the will must all be in writing, 94 Allen v. Haddock (1858), 11 Moore were held to entitle their children to P. C. 427 ; Webb v. Day (1884), 2 Dem. take according to the provisions of the Sur. (N. Y.) 459, 29 Alb. L. J. 484. revoked will. Gerrish v. Gerrish (1880), Parol evidence contradicting the will 8 Ore. 351, 34 Am. Rep. 585. cannot be given, as that the memoranda 97 The proof was held sufficient in offered are the writings referred to in Amosnino, Goods of (1859), 1 Sw. & the will as deeds. Tuttle v. Berry- Tr. 508; Baker's Appeal (1884), 107 man (1893), 94 Ky. 553, 23 S. W. 345. Pa. St. 381, 52 Am. Rep. 478; Pickle References applicable to any num- v. Snepp (1884), 97 Ind. 289, 49 Am. ber of writings of any description are Rep. 449. too indefinite to be made good by pa- 98 Singleton v. Tomlinson (1878), L. rol identification. Phelps v. Robbins R 3 App. Cas. 404, 414 ; Shillaber's (1873), 40 Conn. 250, 273; Chambers Estate (1887), 74 Cal. 144, 5 Am. St. v. McDaniel (1845), 6 Ired. L. (N. Rep. 433, 15 Pac. 453; Thayer v. Wei Car.) 226. lington (1864), 91 Mass. (9 Allen) 283, 95 1 Bigelow's .Tarman *99 ; In re Ke- 85 Am. Dec. 753 ; Magoohan's Appeal hoe (1884), L. R. 13 Ir. 13, Mechem (1887), 117 Pa. St. 238, 14 Atl. 816 36, Abbott, p. 191 ; Watkins, Goods of Vestry v. Bostwick (1896), 8 App. D. C (1865), L. B. 1 P. & D. 19. 452. 96 Hunt v. Evans (1890), 134 111. 99 Newton v. Seaman's Friend So 496, 11 L. R. A. 185, 25 N. E. 579; clety (1881), 130 Mass. 91, 39 Am. Rep, Chambers v. McDaniel (1845), 6 Ired. 433, 2 Am. Pro. Rep. 18; Fickle v. L. (N. Car.) 226. Snepp (1884), 97 Ind. 289, 49 Am A reference to and adoption of the Rep. 449 ; Lorlng v. Sumner (1839) revoked will of testatrix's late husband 40 Mass. (23 Pick.) 98. § 252 WILLS. 160 parol statements, though referred in the will, cannot be received, in the absence of fraud. 1 §252. The Proper Parts of a Will. As the only requi- sites of a will arise from the statute, that is to say, writ- ing, signature of the testator, attestation by witnesses, and their subscription in his presence; and as the instru- ment may be, in form, a letter, deed, certificate, or nonde- script; 2 mention of formal parts may seem superfluous. Yet, let us see what parts a well drawn will should con- tain. In practice the testator is first named, with his titles: "I, John Smith, brick-mason, of Ann Arbor, Mich." It is common to add, "being of full age and sound mind;" but it is better to put this statement in the attestation clause. That the testator vouches for his own sanity counts for little; but a witness who would testify to insanity in contradiction of his certificate on the will, would receive little credit. Then follows the declaration of purpose in making the writing : "do hereby make and declare this to be my last will and testament, hereby re- voking all former wills made by me;" or, "do hereby make and publish this the second codicil to my last will. ' ' Codicils are dangerous. It is better to make an entirely new will, and revoke the other. Then follow the pro- visions of the will; and it is best to make each devise or bequest, or the gifts to each person in separate para- graphs, each paragraph numbered consecutively; thus: "1. I hereby direct my executor hereinafter named to pay out of my estate, as soon as possible after my decease, all my debts and funeral and testamentary expenses. "2. I give and devise (if real estate, or give and be- queath, if personal property) to my beloved wife lots ten and twelve," etc. A residuary clause is usually added after all the other devises and bequests: "All the rest of my property, now possessed or hereafter acquired, of whatever nature, and wheresoever situated, I hereby give, devise, and be- queath to Jane Adams and her heirs." * * * j See ante, § 160. 2 See ante, § 60. 161 FORMALITIES REQUIRED IN MAKING WILLS. § 253 "21. I hereby nominate my brother, William Smith, executor of this will, and authorize him, at such times and places as may be deemed proper, to sell and make proper conveyances of both real and personal property, as necessary or proper to carry this will into effect." Lastly, there is the testimonium clause: "In witness whereof I have hereunto set my hand (and seal where that is necessary) 3 this 25th day of November, A. D. 1903." Here the testator signs his name; and below his signa- ture is the attestation clause, or certificate of the wit- nesses, signed at the end by them. In drawing this clause the only safe practice is to examine the statutes of the state, see what they require to be done in executing the will, see that all these things are done, and then so draw the certificate that the witnesses will certify to the ex- istence of all these facts. 4 c. "SIGNED BY THE PARTY SO DEVISING." § 253. American Statutes. The statutes in all the states and territories require all written wills to be signed; except that wills of personal property are not re- quired to be signed in Colorado, District of Columbia, and Tennessee. 5 Though the testator supposed and de- clared his carefully written will good without signing, 6 or was physically unable to sign, and no one present would sign for him as he requested, 7 the unsigned will cannot be allowed probate. § 254. What Constitutes Signing. What is a sufficient signature to satisfy the statute? The usual and most un- equivocal method of signingds for the testator to write his own name in full; but this is by no means indispen- sable. Signing is making a sign, token, or emblem; and 3 As to which, see post, § 261. i Strieker v. Groves (1839), 5 Whart. 4 A very comprehensive attestation (Pa.) 386. clause Is given in this hook, see post, § In Pennsylvania the statute makes an 288. unsigned will good if the signing was 5 See statutes cited ante, § 241. prevented by the extremity of the last e Catlett v. Catlett (1874), 55 Mo. sickness. Showers v. Showers (1856), 330. 11 27 Pa. St. 485, 67 Am. Dec. 487. § 255 WILLS. 162 what that shall be cLepeUdd entirely On the custom of the time and place, and on the habit or whim of the individ- ual. Spain's sovereign signs, I the King (Yo el Rey) ; and the cross was made for a sign by most men till learn- ing became common, as it is by the illiterate to this day. The material thing is that the testator made the mark to authenticate the writing as his will; and whatever he puts on it for that purpose will Suffice, unless the statute provides otherwise. Use of an uncommon form may raise a presumption that the testator did not intend it as his signature. That presumption will depend on the circumstances. 8 § 255. Peculiar Signatures Held Sufficient. A number of cases are reviewed in a recent decision sustaining a will signed in pencil, "Harriet." 9 It appearing from the circumstances that the testator intended the mark to au- thenticate, wills have been held to be well signed by the testator's initials, 10 or by an engraved seal containing his initials being impressed on wax fixed to the paper, 11 or by printing his name on the will with a rubber stamp, 12 or by his writing the name of some other person or a ficti- tious name instead of his own, 13 or by his making a cross, 14 though he had sufficient physical ability and skill 8 See the case* cited In the follow — will by a fictitious name, afterwards lng sections. erased this name and wrote In her real 9 Knox's Estate (1890), 131 Pa. St. name without having the new signa- 220, 18 Atl. 1021, 17 Am. St. Rep. 798, tiife witnessed. Though the last sign- 6 L. R. A. 353, Chaplin, 217. See also ing was therefore ineffectual, the court note on signing by mark In 22 L. R. A. held the will entitled to probate on 370. • the first signing, as the erasure was not 10 Though the Scrivener, knowing made to revoke the will. Redding, the weakness of testator, had drawn the Goods of (1850), 2 Rob. Ecc. 339, 14 attestation clause so that the witnesses Jur. 1052. certified to having seen the testator Misspelling the name was Held im- make his mark, and after the Will was material in Word v. Whipps (Ky. 1894), returned to him signed by initials sent 28 S. W. 151, and Hartwell v. McMas- lt back and had the testator - sign by tef (1880), 4 Redf. Sur. (N. T.) 389. mark. The signing by mark was bad 14 Signing by Mark. Thompson v. for want of witnesses, but the court Thompson (1896), 49 Neb. 157, 68 N. held the other signing good. Savory, W. 372; Stephens v. Stephens (1895), Goods of (1851), 15 Jurist, 1042. 129 Mo. 422, 31 S. W. 792; Nickerson u Emerson, Goods of (1882), L. R. 9 v. Buck (1853), 66 Mass. (12 Cush.) lr. 443. 332; Ray v. Hill (1848), 3 Strobh. (S. 12 Jenkins v. Galsford (1863), 3 Sw. Car.) 297, 49 Am. Dec. 647; Pool v. & Tr. 93. Chaplin, 222. Buffum (1869), 3 Ore. 438. The early 13 The testatrix having signed her rale to the contrary In Pennsylvania, 163 FORMALITIES REQUIRED IN MAKING WILLS. § 256 in -writing to write his name, 15 and though his name does not appear on the will, 16 or, worse yet, though the scriv- ener misunderstood his name and at ihe beginning and opposite the mark wrote another name. 17 The cross, in this case, and not the name, is ihe signature. That ho name or a wrong name was written against the signature is no matter. 18 That the testator's hand was guided by another, with his consent, in making his signature, is hot material; It is enough that he intended the mark made as his signature. Such a signature is one made by him- self, not by the other. 19 § 256. Approval Necessary ; 2D On the other hand, noth- ing is sufficient as a signing unless the testator intended or accepted it as such. For example, in a recent case* a testator intending to sign his full name, had written the first letter and stopped, saying, "I can't sign it now." 20a Again, Patrick O'Neill, with like intent, got as far as "Pat" and fell back exhausted. 21 In each of these cases was abolished by statute. Vernon v. Requirement that the name be writ- Kirk (1858), 30 Pa. St. 218. ten hear the mart is satisfied by the In Louisiana signing by mark is in- name at the beginning of the will. Guil- sufficient unless the will shows on its foyle's Will (1892), 96 Cal. 598, 31 Pac. face that the testator declared he could 553, 22 L. R. A. 370. not write his name and why. Whit-" 19 Allen's Will (1878), 25 Minn. 39; tington's Succession (1874), 26 La." Fritz v. Turner (1890), 46 N. J. Eq. An. 89. See extended notes on signing 515, 22 Atl. 125 ; Sheehan v. Kearney by mark, 4 Pro. R. A. 258, 22 L. E. A. (1896), (Miss.), 21 South. 41, 35 L. 370. R. A. 102; Cozzen's Will (1869), 61 is St. Louis Hospital Assn. v. Wil- Pa. St. 196; Vines v. Clingfost (1860), liams (1854), 19 Mo. 609; Main v. 21 Ark. 309; Van Hanswycfc v. Wiese Ryder (1877), 84 Pa. St. 217. (1865), 44 Barb. (N. T.) 494. Inability to write will be presumed One having knowledge enough but from signing by mark, and no inquiry too weak physically to write his name as to ability will be awarded. Baker is not therefore incompetent to make v. Dening (1838), 8 Ad. & El. 94, 35 a will by signing his mark. Guilfoyle's E. C. L. 497. Will (1892), 96 Cal. 598, 31 Pac. 553, leBryce, Goods of (1830),, 2 Cuftels, 22 L. R. A. 370. 325, 7 Eng. Ecc. 128. In this case the That signing by mark is not signing court found the name of the testator by another see post, § 265, notes, from the affidavit of the proponent. 2o Compare post, j 294, on signature it Douce, Goods of (1862), 2 Sw. by witness. & Tr. 593. 20a Plate's Siritate (1892), 148 Pa. 18 Scott v. Hawk (1898), 107 Iowa, St. 55, 23 Atl. 1038, 33 Am. St. Rep. 723, 77 N. W. 467, 70 Am. St, Rep..' .805. Same effect: Everhart v. Ever- 228; Long v. Zook (1850), 13 Pa. St. hart (1888), 34 Fed. Rep. 82. 400; Bailey v. Bailey (1860), 35 Ala. 21 Knapp v. Reilly (1885), 3 Dem. 687; Rook v. Wilson (1895), 142 Ind. Sur. (N. X.) 427. Same as to witness: 24, 41 N. E. 311, 51 Am. St. Rep. 163 ;; Maddock, Goods of (1874), L. R. 3 Jackson v. Jackson (1868), 39 N. t P. & D. 169. 153. § 257 WILLS. 164 the court held the signing insufficient, because the testator had intended to do something more than he had done, and never accepted what he had made as his signature. 22 The decisions holding that affixing a seal is not signing 23 have been justified on the ground that in those cases the seal was not affixed as and for a signature. 24 § 257. Place of Signature under 29 Car. II. In the lead- ing case of Lemayne v. Stanley (1681), 26 decided by the common pleas four years after the statute took effect, it was held that, inasmuch as the statute did not specify whether the signature should be at the top, bottom or margin, the requirement was satisfied by the testator's name being recited at the beginning, "I, John Stanley, hereby make this my last will," &c, it being assumed that he intended his name so written to stand for his sig- nature. Though at times regretted, this rule was adhered to in England till changed by statute. The enactment of the original statute in the United States has generally been held to adopt the construction also ; but the question of intent has been left as a doubtful fact to be found from the circumstances. 26 A signature after the attestation clause is unquestionably good. 27 22 It has been said that a mark not In Virginia and West Virginia the made for a signature may he accepted statutes require wills to be "signed in as such after it is made. Adams v. such manner as to make it manifest Field (1849), 21 Vt. 256, Mechem 49, that the name was intended as a slg- Abbott, p. 292. nature;" and there the recital of the 23 Smith v. Evans (1751), 1 W.ils. name at the beginning is held insuffi- 313; Wright v. Wakeford (1811), 17 cient in the absence of anything indl- Ves. 454. eating that the name was adopted by 24 Emerson, Goods of (1882), L. B. the testator as his signature. War- 9 Ir. 443. wick v. Warwick (1890), 86 Va. 596, 25 Lemayne v. Stanley (1681), 3 10 S. E. 843, 6 L. E. A. 775. To the Lev. 1. same effect as to a New Jersey will, 26 Adams v. Field (1849), 21 Vt. 256, see Matter of Booth (1891), 127 N. T. Mechem 49, Abbott, p. 292 ; Lawson 109, 27 N. E. 826, Chaplin, 226, 24 v. Dawson's Estate (1899), 21 Tex. Am. St. Eep. 429, 12 L. E. A. 452; Civ. App. 361, 53 S. W. 64. and see Schermerhorn v. Merritt So held though the will was not in (1900), 123 Mich. 310, 82 N. W. 513; the hand- writing of the deceased, on Armant's Succession (1891), 43 La. the ground that it might be treated An. 310, 9 South. 50, Chaplin, 232, as signed by another for him. Arm- 26 Am. St. Eep. 183. strong v. Armstrong (1857), 29 Ala. 2T Hallowell v. Hallowell (1882), 88 538; Mlles's Will (1836), 4 Dana (Ky.) Ind. 251; Huff v. Huff (1871), 41 Ga. 1. Contra: Catlett v. Catlett (1874), 696. 55 Mo. 330. 165 FORMALITIES REQUIRED IN MAKING WILLS. § 258 § 258. Where Signing at End Required. The signa- ture serves two purposes: 1, to guard against fraud, to insure that the paper offered is the one executed by the testator; and, 2, to prove that it was finally approved by him, was not a mere draft to be used by him as a guide in making his will at some future time. A signature at the beginning, according to the rule above mentioned, fails largely in both respects. There is no sufficient guard against words being added after the will is exe- cuted, and perhaps fraudulently added. The place of signing is equivocal to say the least, leaving the final approval of the will in doubt. To remedy these evils modified statutes have been enacted in several states. In Connecticut and Kentucky the will must be ' ' subscribed" by the testator. 28 In Kansas, Minnesota, Ohio, and Penn- sylvania, it must be "signed at the end." It must be "subscribed at the end" in Arkansas, California, Idaho, Indian Territory, Montana, New York, North Dakota, Oklahoma, South Dakota, and Utah. 29 In the other states the rule is substantially as under the Statute of Frauds, . 29 Car. II. § 259. What is Signing at End. Probably no rule can be laid down as to what is signing at the end of the will. The requirement is not infringed by leaving a blank space in the middle of the will or between the last disposing clause and the one appointing executors; 30 and some space must certainly be allowed between the signature and the writing before it, 30a part of a line at least. Many courts would not go so far; but signing on the next sheet has been held sufficient. 31 The signature may be in the at- 28 Which is held to mean signed at St. 479, 54 Atl. 313, holding space of the end. Soward v. Soward (1863), two lines not fatal and declaring that 1 Duvall (72 Ky.) 126. there was no requirement of the statute 29 See the statutes cited in note ante, forbidding such space, but only that § 241. where the end in sense is the signature Holographic wills are not included : shall be. Stratton's Estate (1896), 112 Cal. 513, 31 Fuller, Goods of (1892), 17 Prob. 44 Pac. 1028. Div. 377, 62 L. J. P. 40, 67 L. T. 501. so Blake's Estate (1902), 137 Cal. And see: Coombs, Goods of (1866), L. 429, 68 Pac. 827. E. 1 P. & D. 302; Dayger, Matter of 30aMorrow's Estate (1903), 204 Pa. (1888), 47 Hun. 127, affirmed without 259 WJLLS. 166 testation clause? 2 or after it, 33 and no doubt the attesta- tion clause may follow #ie signature, according to the common practice. But if a clause, appointing executors, 34 or any dispositive clause follows the signature the whole will fails, if the provision is not, as in England, that the/ will shall be considered to end where the, signature is, 38 " but that the signature shall be put at the end. 36 Matter following the signature but referred to in the body of the instrument has been treated as so incorporated at the point where referred to, that the will was sufficiently signed at the end. 37 This is not the rule in New York. 38 A will well executed is not avoided by additions made afterwards, and the time of making may be shown by parol. 39 opinion in 110 N. T. 666. Contra: Soward v. Soward (1863), 1 Duvall (Ky.) 126. 32 Noon, Matter of (1900), 31 N. T. Misc. 420. 33 Younger v. Duffle (1884), 94 N. T. 535, 46 Am. Eep. 156. 34 Sisters of Charity v. Kelly (1876), 67 N. Y. 409 ; Wineland's Appeal (1888), 118 Pa. St. 37, 12 AH. 301, 4 Am. St. Eep. 571. Address and date written after the signature does not avoid the will. Flood v. Pragoff (1881), 79 Ky. 607. So held of clause excusing executor from giving bond. Baker v. Baker (1894), 51 Ohio St. 217, 37 N. B. 125. 35 Woods, Goods of (1868), L. E. 1 P. & D. 556. seO'Neil's Will (1883), 9.1 N. Y. 516, Mechem, 52. Illustrations of Signing at End. A will was signed at the end but not witnessed. A year later testator add- ed another clause and had witnesses sign, but did not himself sign again. The whole will was rejected. Glancy v. Glancy (1866), 17 Ohio St. 135, A will drawn on a printed form of one page (on which were written para- graphs one and two) and signed at the end of that page was held void, not signed at the end ; because pro- visions purporting to be paragraphs three and four were written on another sheet, fastened with Iron staples to, the face of the signed form. Whitney, Mat- ter of (1897), 153 N. Y. 259, 47 N. B. 272, 60 Am. St. Eep. 616. A wjll drawn on a printed blank, folded in the middle so as to make four consecutive pages, on the second of which was the attestation clause and the signatures of the testator and wit- nesses, was held not to be signed at the end. The third page had been marked by the scrivener "2nd page," and contained provisions ; and the page containing the attestation clause and signatures he had marked, "3rd page." Andrews, Matter of (1900), 162 N. Y. 1, 56 N. E. 529, 76 Am. St. Eep. 294, 5 Pro. E. A. 401, 48 L. E. A. 662. On a box in a safety deposit were the words : "In case of my death, I want this box given to my attorney, A. K. Stevenson. G. T. Jacoby." In the box were envelopes indorsed : "This goes to Mary Downs," etc. These were npt signed. Held not tp be a will signed at the end, 'Japoby's Estate (1899), 190 Pa. St. 382, 42 Atl. 1026. Compare also § 295, post, on witness signing at end. 37 Baker's Appeal (1884), 107 Pa. St. 381, 52 Am. Eep. 478; Birt, Goods of (1871), L. E. 2 P. & D. 214. 38 Conway, Matter of (1891), 124 N. Y. 455, 26 N. E. 1028, H L. E. A. 796. 38 Saunders v. Samarreg Co. (1903), — Pa, St. — , 55 Atl. 763; Jacobson, Matter of (1887), 6 Dem. Sur. (N. Y.) 298, Chaplin, 229. 167 FORMALITIES REQUIRED IN MAKING WILLS. § 260 § 260. Time of Signing. Where wills are not required to be signed at the end, it has been held to be no objection to the will that the only signature of the testator was made by his writing his name on the paper before the will was written or even completed in his mind, though he did not intend it as a signature when he made it, if he adopted it as such when the will was complete. 40 § 261, Sealing. Sealing is mentioned in the wills acts of only two states. In Nevada it is expressly required; in New Hampshire, expressly excused, "Where not re- quired by express statute it is not necessary, 41 even though the attestation clause recite that the will was signed and sealed. 42 But putting on the unnecessary seal does not invalidate the instrument as a will. 43 § 262. Dating. The date is no part of the will. 44 It is not invalid because it bears no date or a wrong one; and when material, the true date may be shown by parol, though the will be dated.* 5 Likewise, the place where the will is executed need not be stated, and may be shown by parol if material. 49 d. "OR BY SOME OTHER PERSON IN HIS PRESENCE AND BY HIS EXPRESS DIRECTIONS." § 263. Whether Another May Sign. The above pro- visions, or a part of them, are found in the statutes of all the states and territories except Connecticut, New Jersey, and Utah. 47 The entire omission of such a provision has been held to render signing by another insufficient. 48 40 Adams v. PJeld (1849), 21, Vt 389; Deakins v. Hollis (1835), 7 Gill 256, Mechem 49, Abbott, p. 292, & J. (Md.) 311. 4iDiez, Matter of (1872), 50 N. Y. A will is not avoided by the date 88, Mechem 81 ; Hight v. Wilson being inserted by the. principal bene- (1784), 1 Dall. (Pa.) 94; Grubbs y. ftciary at the request of the testator .McDonald (1879), 91 Pa. St. 236, after the testator and witnesses had 42 Ketchum v. Stearns (1879), 8 Mo. signed. Lange v. Wiegand (1901)', 125 App. 66. Mich. 647, 8Sj N. W. 109, 6 Pro. R. 43 Wuesthoflt v. Germania Life Ins. A. 412. Co. (1888), 107 N. Y. 580, 5^1, 14 N. 46 Hall, Succession of (1876), 28 La. E. 811. An - 57 - 44 Flood v. Pragoff (1881), 79 Ky. 47 See statutes cited ante, § 241, 607. R°te 46 Austin v. Fielder (1882), 40 Ark. 48, McElwaine, Matter of. (1867), 18 144; Wright y. Wright (1854), 5 Ind. N. J. Eq. 499. § 264 WILLS. 168 Where such signing is allowed it is not necessary to show that deceased could not sign for himself. 49 § 264. Who May Sign for Testator. One signing for the testator is a competent subscribing witness. One may act in both capacities. 50 Indeed, persons signing for the testator are required to sign their own names as witnesses in many states, as we shall presently see. A beneficiary under the will should not sign for the testator. It might look suspicious. § 265. Form of Signing by Another. As the testator may make, so he may authorize or adopt, any form of sig- nature, unless the statute restricts. 51 What is written need not be his name. 52 If the person requested signs his own name, by design or mistake, and the testator ac- cepts the signature, it is well enough, though he may not have noticed the mode of signing. 53 The only essential is that the sign made was intended or accepted by the testator as his signature. That is essential. The only prudent method is to sign the testator's name, and indorse below the signature a statement that it was made at the request of the testator and in his presence, naming the person who wrote it; and he should sign it as a witness. 54 But no indorsement or addition to the signature is neces- sary to make it valid, unless required by statute. 55 The person who writes the testator's signature for him is re- 49 Herbert v. Berrier (1881), 81 Ind. North Dakota, Oklahoma, South Da- 1, 3 Am. Prob. E. 154. See also ante kota, and Vermont. See statutes cited § 255 and notes. ante, § 241, and post, § 298, as to in- 50 Leonard, ex parte (1893), 39 S. terpretation of statutes requiring wit- Car. 518, 18 S. B. 216, 22 L. E. A. 302 ; nesses to sign by writing their names. Toomes, Estate of (1880), 54 Cal. 509, 53 Clark, Goods of (1839), 2 Curteis 35 Am. Eep. 83 ; Herbert v. Berrier 329, 7 Eng. Ecc. 130. Misspelling the (1881), 81 Ind. 1, 3 Am. Prob. E. 154; name does not vitiate. Crouzeilles's Eiley v. Eiley (1860), 36 Ala. 496, Succession (1901), 106 La. 442, 31 So. Abbott, p. 298. 64 ; and see ante § 255 and note 13. 61 The person requested printed the 64 For various approved methods of name with a stamp, and the will was Indorsement see : Leonard, ex parte sustained. Jenkins v. Gaisford (1863), (1893), 39 S. Car. 518, 18 S. E. 216, 3 Sw. & Tr. 93, 32 L. J. P. 122, 9 Jur. 22 L. E. A. 302 ; Vernon v. Kirk, (n. s.) 630. (1858), 30 Pa. St. 218. 52 Another person is only authorized 55 Walton v. Kendrlck (1894), 122 to sign by writing the testator's name Mo. 504, 27 S. W. 872, 25 L. E. A. 701 ; In California, Delaware, Idaho, Iowa, Haynes v. Haynes (1878), 33 Ohio St Kentucky, Montana (New York?), 598, 1 Am. Prob. B. 263. 169 FORMALITIES REQUIRED IN MAKING WILLS. § 266 quired, in Arkansas, California, Idaho, Indian Territory, Montana, New York, North Dakota, Oklahoma, Oregon, and South Dakota, to sign his own name as a witness. In all of these except Arkansas, Indian Territory, and Ore- gon it is also provided that failure to obey these direc- tions shall not invalidate the will. 56 § 266. In His Presence. This phrase is used twice in the section of the Statute of Frauds now being discussed, in the same sense both times. The discussion of it will be deferred till we meet it again. 67 Every statute permitting another to sign for the testator requires the signature to be made in the presence of the testator. § 267. By His Express Directions. The signing by an- other may be done with the consent of the testator in Indiana; only by his direction in nearly half of the states; 58 and only by his express direction in the other states where allowed at all. "Mere knowledge by the testator that another has signed or is signing, without previous direction, and assent to or acquiescence in it, to be inferred from looks, or a nod of the head, or motion of the hand, or other ambiguous token, is not enough. We do not mean to say that the express direction must be in words. A person unable to speak may sometimes be able 56 See statutes cited ante, § 241. the name about it need not sign as a In the states last named the will is witness. Guthrie v. Price (1861), 23 void unless the one signing states re- Ark. 396; Pool v. Buffum (1869), 3 quest and adds his name. This was the Ore. 438. holding on a similar statute in Mis- 67 See post, §§ 300-306. The name of sourl : McGee v. Porter (1851), 14 the testator being written out of his Mo. 611, 55 Am. Dec. 129 ; Simpson presence, a sufficient signing in his v. Simpson (1858), 27 Mo. 288. presence was found from adding in his Place of Signing By Another. Sign- presence the name of the party who ing under the name of the testator wrote it. Leonard, ex parte (1893), was held to be a sufficient signing as 39 S. Car. 518, 18 S. H. 216, 22 L. E. A. a witness. Abraham v. Wilkins (1856), 302. « 17 Ark. 292, 319. But see: Peake v. 68 As follows: Alabama, Arizona, Jenkins (1885), 80 Va. 293. Arkansas, California, Colorado, Idaho, Signing at the side is also sufficient. Illinois, Indian Territory, Kentucky, The signer need not write his name as Maine, Missouri, Montana, New Mex- part of the signature. Toomes, Estate ico, New York, North Carolina, North of (1880), 54 Cal. 509, 35 Am. Rep. Dakota, Oklahoma, Oregon, South Da- 83. kota, Tennessee, Virginia, and West Signing l>y Mark. If the testator Virginia. See statutes cited ante, § makes a mark (X), with his own hand, 241. as his signature, the person writing § 268 WILLS. J7Q to convey his wish that another sign his name, as unequiv- ocally by gestures as though he spoke the words; but the meaning of such gestures must be as clear and unambigu* ous as the words."? 9 The purpose of the statute ia "to have a straightforward direction expressed in terms which would leave no pretense for the touch of an insensi- ble or dead man's hand to give color to an artful tale told by willing witnesses. ' ' 60 It being proved that the testator acknowledged the signature to the subscribing witnesses, as his, no proof that he authorized it to be made is re- quired. 01 e. "ATTESTED."8? §268. Holographic Wills,— Where Allowed. 63 It is provided by express statute in California, Idaho, Louisi- ana, Montana, North Dakota, Oklahoma, South Dakota and Utah that any will wholly written, dated, and signed in the proper handwriting of the testator, and that is what is meant by holographic, shall be valid though not attested or subscribed by any witnesses; 64 and substan- tially similar provisions are found in the statutes of Ari- zona, Arkansas, Indian Territory, Kentucky, Mississippi, Nevada, North Carolina, Texas, Tennessee, Virginia, and West Virginia, except that in these states dating is not 69 Quoted from the opinion in Waite, eo Qreenougb, v. Gr'eenough (1849), v Friable (1891), 45 Minn. 361, 47 N, 11 Pa. St. 489, 51 Am. Dec. 567. W. 1069, in which assent by a dying 61 Walton v. EenOrick (1894), 122 person, to a signing by another of a Mo, 504, 27 S. W, 872, 25 L, B. A. will dictated, by the deceased a few 701, hours before, was Inferred by acqui-, 82 See note 80 Am. Dec, 242, 5 Pro. escence. This was held insufficient. R. A,, 614. Murry v. Hennessey (1896), 48 Neb, 63 See note 5? Am. Dec. 591-593. 608, 67 N. W, 470, follows the case «4 Ca^/o^ie^-Ciyil Code (1901), § above cited, and was on similar facts, 1277. except that the testatrix lived for some I$aho— rEey. Stat (1887), § 5728. weeks after the will was executed. iouistaflo^rCivil Code (190,0), § What Request Sufficient. A simple 15.88. answer, "yes," to the question, "ShaU Montana— rCivil Code (1895), § 1724. I sign for you?" would be a sufficient North Daftoto^-Bey. Code (1899), § express direction. So would any act 3647. as unequivocal. Leonard, ex parte OJfZ«7soma^-7Statutes (1893), § 6173. (18.93), 39 S. Car. 518, 18 S. E. 216, South Dakota^- Ann. Stat. (1901), g 22 L, E. A. 302; Herbert v. Berrien 4502. (1881), 81 Ind. 1, 8. Am. Prob. B. 154; Ptflfc^-Eev. Btat. (1898), § 2736. Estate of Toomes (1880), 54 Cal. 509, 35 Am. Bep. 83. 171 FOBMALTTIES REQTJIKED IN MAKING WILLS. § 269 required ijQ maEe such wills valid without witnesses. 65 But in North Carolina and Tennessee, it is further pror vided that such wiUs shall not be allowed when not witT nessed, unless found among the testator's valuable papers or coming from one in whose custody the deceased has deposited them for safe keeping. 66 In the absence of some sueh a provision in the statutes as those above mentioned, the omission of the required attestation and subscription by witnesses is just as fatal to a will wholly written and signed in the hand of the testator as to one written and signed by another for him. 67 In all the states and terri- tories except those above mentioned, all written wills must be attested by witnesses. § 269. What Sufficient.— In General. Where unwit^ nessed wills are allowed probate at all, the requirements to entitle them to be received are no more strict than in the case of wills duly witnessed, except in the particulars specified in the statutes concerning them, 68 Testament- ary intent is inferred as to them as liberally as with other wills. 69 The signature may be of any form, as in other wills, and the place of signing is no more important. 70 65 Arizona — Rev. Stat. (1901), 5 67 Neer v. Cowhick (1892), 4 Wyo. 4215. 49, 31 Pac. 862, 18 L. R. A. 588 ; Tur- Arkansas — Sand, and Hill Dig. of ell, Matter of (1901), 166 N. Y. 330, Stat. (1894), § 7392. 59 I*. B. 910. Indian Territory — Statutes (1899), 68 Married women held not per- il 3564. mitted to make sueh wills under these Kentucky — Statutes (1899), § 4828. statutes. Scott v. Harkness (1899), Mississippi — Code (1892), § 4488. — Idaho, — , 59 Pac. 556. Nevada — Comp. Laws (1900), § 3093. 69 Mitchell v. Donohue (1893), 100 North Carolina — (1855), Rev. Code, Cal. 202, 34 Pac. 614, 38 Am. St. Rep. c. 119, § 1. 279; Webster v. Lowe (1899 Ky.), Texas— Sayles Civil Stat. (1900), § 53 S. W. 1030 ; Young v. Alford (1896), 5336. 118 N. Car. 215, 23 S. E. 973. Tennessee — Code (1896), § 3896. to Where Signed. Need not he signed Virginia — Code (1887), § 2514. at end: Camp's Estate (1901), 134 Cal. West Virginia — Code (1899), c. 77, 233, 66 Pac. 227; Stratton Estate I 3 _ (1896), 112 Cal. 513, 44 Pac. 1028; 66 As to which see Young v. Alford Lawson v. Dawson (1899), 21 Tex. (1896), 118 N. Car. 215, 23 S. E. Civ. App. 361, 5,3 S. W. 64. 973 allowing as a will » letter writ- Must he signed at end: Waller v. ten to a sister, without request to keep Waller (1845), 1 Grat. (Va.) 454, 42 it • and Tate V. Tate (1850), 11 Humph. Am. Dec. 564 ; Perkins v. Jones (1888), (30 Tenn ) 465, allowing a will found 84 Va. 358, 4 a E. 833, 10 Am. St. in a sugar chest, lockefl with other Rep. 863; Armant, Succession of papers of some value. See also cases (1891), 43 Lft. An. 310, 9 South. 50, 26 cited in note to 52 Am. Dec. 591-593. Am. St. Rep, 183. § 270 .WILLS. 172 The writing may be on paper, parchment, linen, or other material; with pencil, ink, blood, or other substance; in any language and style; in words, figures, or signs. 71 § 270. The Writing Must all Be Made by the Testa- tor. A will on a printed form, with the blanks filled in the handwriting of the deceased is not holographic. 72 A will in his hand on the stationery used by him in his business is not holographic, if resort must be made to the year as printed on the letter head to make out the date, though the month and day were written in by the testator's hand. 73 But words written on the will by another or printed would not vitiate it if they were not a necessary part of the will. 74 Being a part of it, the whole will fails ; what is in the handwriting of the deceased cannot be sus- tained as his will without the rest. 75 Where the date is required a complete date must be given; the month and day without the year, and the year and month without the day, are equally insufficient. 76 §271. Not Affected by Void Witnessing. Such] wills are none the worse for being subscribed by witnesses who did not attest, 77 or were incompetent, 78 or less in 71 Vanhille, Succession of (1897), 49 Abbott, p. 184; Martin, Estate of La. An. 107, 21 South. 191, 62 Am. (1881), 58 Cal. 530; Heffner v. St. Rep. 642; Philbrick v. Spangler Heffner (1896), 48 La. An. 1088, 20 (1860), 15 La. An. 46. South. 281. 72 Band, Estate of (1882), 61 Cal. A clause added after the signature, 468, 44 Am. Eep. 555. but not dated, will be presumed to have 73 Billings, Estate of (1884), 64 Cal. been written on the same date as the 427, 1 Pac. 701, Abbott, p. 184. rest. Lagrave v. Merle (1850), 5 La. 74 McMichael v. Bankston (1872), 24 An. 278, 52 Am. Dec. 589, and see note. La. An. 451. A date anywhere will suffice — at the 75 Band, Estate of (1882), 61 Cal. beginning, in the body, or at the end. 468, 44 Am. Eep. 555. Zerega v. Percivil (1894), 46 La. An. The Will was allowed probate though 590, 15 South. 476 ; Fuqua, Succession it attempted to incorporate by refer- of (1875), 27 La. An. 271. ence, a writing in the hand of another. "New York, Nov. 22,/97," Is suffi- Shillaber, Estate of (1887), 74 Cal. clent Lakemeyer, Estate of (1901), 144, 15 Pac. 453, 5 Am. St. Eep. 433. 135 Cal. 28, 66 Pac. 961, 87 Am. St Such wills may by reference incorpo- Eep. 96. rate papers written by another. Soher, 77 Both, Succession of (1879), 31 La. Estate of (1889), 78 Cal; 477, 21 Pac. An. 315. 8. 78 Brown v. Beaver (1856), 3 Jonea 76 What is Date. Billings, Estate L. (N. Car.) 516, 67 Am. Dec. 255. of (1884), 64 Cal. 427, 1 Pac 701, 173 POEMALITIES BEQTJIRED IN MAKING WILLS. § 272 number than other wills require; 78 nor by bearing an attestation clause not subscribed at all. 80 §272. "Attested" Denned and Distinguished. "We have been discussing the formal requirements as to the execution of wills, following the Statute of Frauds, 29 Car. IE, c. 3, § 5, and mentioning in passing any matters in which the American statutes differ from it. So far we have disposed of the requirements for writing and signing by the testator or some other for him. We come now to the attesting and subscribing; which are acts required of the witnesses, not of the testator. Eemembering that nothing is necessary beyond what the statutes require, except testamentary capacity and intention, it is pertinent to ask what is necessary by reason of the requirement that the will be attested? Evidently attest and subscribe were used by the law-makers to indicate different things. Both are required of witnesses. Attest ordinarily means to bear witness, to take notice. The student will remem- ber the same idea expressed in the section of the Statute of Frauds touching oral wills, that the testator bid some one present to bear witness that such was his will. To attest as a witness to a will is therefore to observe, per- ceive, discern, and take notice of what is done in execut- ing the will. The witness subscribes with his hand, he attests with his eyes and ears. 81 § 273. Need not See Signature Made. Of the require- ments of the Statute of Frauds, 29 Car. II, touching the 79 Harrison v. Burgess (1821), 1 Attestation is the act of the senses, Hawks (N. Car.) 384; Davis v. Davis subscription is the act of the hand; (1880), 6 Lea. (74 Tenn.) 543; Doug- the one is mental, the other mechani- las v. Harkrender (1873), 3 Baxter (62 cal ; and to attest a will is to know (Tenn.) 114. that it is published as such, and to 80 Hill v. Bell (1867), Phil. L. (N. certify the facts required to constitute Car.) 122, 93 Am. Dec. 583 ; Perkins v. an actual and legal publication ; but to Jones (1888), 84 Va. 358, 4 S. E. 833, subscribe a paper as a will, is only to 10 Am. St. Rep. 863 ; Toebbe v. Wil- write on the paper the names of the Hams (1883), 80 Ky. 661 ; Allen v. Jet- witnesses, for the sole purpose of iden- er (1881), 74 Tenn. (6 Lea) 672. tiflcation." Swift v. Wiley (1840), 81 "To attest the publication of a IB. Mon. (Ky.) 114, 117. Quoted in paper as a last will, and to subscribe Tobin v. Haack (1900), 79 Minn. 101, to that paper the names of the wit- 81 N. W. 758, 5 Prob. R. An. 409 ; nesses, are very different things, and Sloan v. Sloan (1900), 184 HI. 579, required for obviously different ends. 583, 56 N. E. 952. § 274 WILLS. 174 attestation, the first point settled was that the witnesses need not see the testator sign. Soon after the statute was passed several judges maintained that there was not a sufficient attestation unless all the witnesses were present at the same time and saw the testator sign; 82 but it was soon settled, that, in as much as the statute did not re- quire the testator to sign in the presence of the witnesseSj it was enough if he acknowledged to them the will he had already signed; 83 This is expressly allowed by the stat- utes of a number of the states; 84 and wherever not ex- pressly allowed, the acknowledgment is held to be suffi- cient. 86 But the New Mexico and Utah statutes expressly require the signature to be made in the presence of the witnesses. 86 § 274. Need not Hear Same Acknowledgment. About the same time and as a part of the same discussion it was settled that the witnesses need not hear or attest the same acknowledgment— that One might attest at one time and another at another, that no acknowledgment in their joint presence was required. 87 This is the law today in all the states, 88 except in Utah, as above mentioned, and in 82 So declared In the King's Bench Missouri — Cravens v. Falconer by Holt, C. J., in Lea v. Bibb (1689), (1859), 28 Mo. 19. Carthew 35. About the same time the New Hampshire — Welch v. Adams judges of the Common Pleas were also (1885J, 63 N. Ham. 344, 1 Atl. 1, 56 divided on the question in Hoil v. Clark Am. Rep. 521. (1689), 3 Mod. 218. New York — Baskin v. Baskin (1867), 83 Cook v. Parsons (1701); Finch's 36 N; Y. 416, Chaplin, 237. Prec, Ch. 184; Stonehouse v. Evelyn Ohio — Raudebaugh v. Shelley (1856), (1734), 3 Pi Wms. 252; Grayson v. At- 6 Ohio St. 307. kinson (1752), 2 Ves. Sr. 454; Ellis v. Tennessee — Simmons v. Leonard Smith (1754), 1 Ves. Jr. 11. (1892), 91 Tenn. 183, 18 S. W. 280, 30 84 See statutes citea ante, § 241. Am. St. Rep. 875, Mechem, 56. 85 Alabama — Woodruff v. Hundley Vermont — Ciaflih's Will (1901), 73 (1900), 127 Ala. 640, 29 South. 98, 85 Vt. 129, 50 Atl. 815, 87 Am. St. Rep. Am. St. Rep. 145. 693; Adams v. Field (1849), 21 Vt. District of Columbia — Porter's Will 256, Mechem, 49, Abbott, 292. (1892), 20 D. C. 493. 86 New Mexico Comp. Laws (1897), Georgia — Webb v. Fleming (1860), SO § 1952; Utah Rev. Stat. (1898), § 2735. Ga. 808, 76 Am. Dec. 675. Compare Combs v. Jolly (1835), 3 N. Iowa — Convey's Will (1879), 52 Jj Eq. 625; Den de Compton v. MIttoh Iowa, 197, 2 N. W. 1084, 1 Am. Pr. R. (1830), 7 Halst. (12 N. J. L.) 70. 90. 87 Jones v. Lake (1741), 2 Atklna Maryland — Stirling v. Stirling 176-7, note. (1885), 64 Md. 138, 21 Atl. 273. 88 Hull's Will (1902), 117 Iowa, 738. Massachusetts — Hall v. Hall (1835), 89 N. W. 979; Rogers v. Diamond 17 Pick. (34 Mass.) 373. (1853), 13 Ark. (8 Eng.) 474, 487. If 5 FORMALITIES REQUIRED IN MAKING WILLS. § 275 Louisiana, New Jersey, Khode Island, "Virginia, and West Virginia, where the statutes expressly require a signing or acknowledgment before witnesses present at the same time. 89 § 275. Need not Enow Contents. It was soon settled that the witnesses need not know the contents of the will. 90 And such is now the law in all the states and terri- tories except Louisiana; where all wills have to he read in the hearing of the witnesses^ 91 except holographic wills, and mystic testaments, as to which special solemnities are required. 92 § 276. Need not Know that Testator Knows. The wit- nesses need not know that the testator knows the contents of the Will. 93 Though the testator he blind, the will is not defectively executed because the witnesses did not hear the will read to him, or know that he Was informed of its contents. 94 Yet these might be suspicious facts if fraud were claimed* 95 § 277. Need not Notice Presence of Testator. The wit- nesses must sign in the presence of the testator, but the statute does not require them to notice his presence. 96 §278. Need not See Whole Will. The will need not be unfolded and submitted to the witnesses to examine. A will being written on several loose sheets, it was held that 89 See statutes cited ante, { 241. In S. W. 280, 30 Am. St. Rep. 875, the presence of the witnesses under Mechem, 56. these provisions means the same as »i The will was held void because the presence where witnesses are required witnesses could not understand the lan- to sign in the presence of the testator guage in which it was written. Dau- (as to which see post, §§30i-7). Lud- terive's Succession (1887), 39 La. low v. Ludlow (1882), 35 N. J. Bq. An. 1092, 3 South, 34l. 480, on appeal (1883), 36 N. J. Eq. »2 See Code (1900), § 1584s 597. See also Monroe v. Liebman »s Linton's Appeal (1883), 104 Pa. (1895), 47 La. An. 155, 16 South. 734. St. 228; (jilley v. Cilley (1852), 34 soWyndham v. Chetwynd (1757), 1 Me. 162. Burr. 414, 421, by Mansfield, arguen- 94 Longechamp y. Fish (1807), 2 do; Higdon's Will (1831), 6 J. J. Bosq. & Pul. (N. E.) 415; Boyd v. Marsh. (Ky.) 444, 25 Am. Dec. 84; Cook (1831), 3 Leigh (Va.) 32. Eaudebaugh v. Shelley (1856), 6 Ohio 95 Harrison v. Rowan (1820), 3 St. 307; Leverett v. Carlisle (1851), Wash C. C. 580, Fed. Cas. No. 6141, 19 Ala. 80; Grimm v. tittman (1892), Abbott, p. 227* 113 Mo. 56, 20 S. W. 664 ; Simmons 96 See post, § 290 ; Bla v. Bdwarda v. Leonard (1892), 91 Tenn. 183, 18 (1860), 16 Gray (82 Mass.) 91, 96. §279 WILLS. 176 it was well attested if all the sheets were present, though the witnesses only saw the one they signed. 97 § 279. Need not Know it is a Will. Publication is a declaration by the testator that the instrument is his will; and it was once thought that there was no sufficient at- testation unless the witnesses learned from the testator in some way that the writing he was executing was his will. 98 But it was finally settled that no publication was required by the statute; 99 and that the witnesses need not know what the writing is. 1 Such is the law in all the states now, except where publication is required by ex- press statute. 2 In only twelve states and territories is publication thus expressly required, viz. : Arkansas, Cali- fornia, Idaho, Indian Territory, Louisiana, Montana, New Jersey, New York, North Dakota, Oklahoma, South Da- kota, and Utah. ? In a few cases publication has been as- 97 Bond v. Sea well (1765), 3 Burr. 1773. Papers referred to In the will and thus made a part of It need not even be present when the witnesses attest. Willey's Estate (1900), 128 Cal. 1, 56 Pac. 550, 4 Pro. R. A. 434. 98 Ross v. Ewer (1744), 3 Atkins, 156, 161. 99 Moodie v. Reid (1817), 7 Taun- ton 355, 2 E. C. L. 397. In Trimmer v. Jackson, 4 Burns Ecc. L. 102, the king's bench held the at- testation good though the testator de- ceived the witnesses into believing it was a deed. Compare Ortt v. Leon- hardt (1903, Mo. App.), 74 S. W. 423. 1 White v. Trustees British Mus. (1829), 6 Bing. 310, 19 E. C. L. 145. Abbott, p. 300, 3 M. & Payne, 689; Daintree v. Fasulo (1888), L. R. 13, P. D. 67. 2 Connecticut — Canada's Appeal (1880), 47 Conn. 450. District of Columbia — Porter's Will (1892), 20 D. C. 493. Illinois — Gould v. Chicago T. S. (1901), 189 111. 282, 59 N. E. 536, 6 Pro. R. A. 398. Indiana — Turner v. Cook (1871), 36 Ind. 129, 136. Iowa — Hull's Will (1902), 117 Iowa 738, 89 N. W. 979. Kentucky — Flood v. Pragoff (1881), 79 Ky. 607. Maine — Deake's Appeal (1888), 80 Me. 50, 12 Atl. 790, dictum. Massachusetts — Osborn v. Cook (1853), 11 Cush. (65 Mass.) 532, 59 Am. Dec. 155, reviewing numerous de- cisions. Missouri — Grimm v. Tittman (1892), 113 Mo. 56, 20 S. W. 664. Mississippi — Watson v. Pipes (1856), 32 Miss. 451, 467. New Hampshire — Welch v. Adams (1885), 63 N. Ham. 344, 1 Atl. 1, 56 Am. Rep. 521. Pennsylvania — Kisecker's Estate (1899), 190 Pa. St. 476, 42 Atl. 886. Oregon — Skinner v. Lewis (1902), 40 Ore. 571, 67 Pac. 951. South Carolina — Verdier v. Verdler (1855), 8 Rich. L. (S. Car.) 135; Gable v. Rauch (1897), 60 S. Car. 95, 27 S. E. 555. Vermont — Claflin's Will (1902), — Vt — , 52 Atl. 1053, 58 L. R. A. 261. Virginia — Beane v. Terby (1855), 12 Gratt. (Va.) 239. Wisconsin — Allen v. Griffin (1887), 69 Wis. 529, 35 N. W. 21. s See statutes cited ante, g 241. 177 FORMALITIES REQUIRED IN MAKING WILLS. § 280 sumed, but not decided, to be necessary in the absence of such requirement. 4 § 280. Need not See Signature. Lastly, it was settled that attestation under the Statute of Frauds did not re- quire the witnesses to see the testator's signature on the will, nor know that it had been signed by him. 5 Wherever the statute does not require witnesses to attest the signa- ture, but only to attest the will, their attention need not be called to the signature. 6 It is no objection that the testator so concealed the signature that the witness could not see it. 7 But if it was not in fact signed, there was no will to attest. It was so held in refusing probate to a will attested by the witness before signing by the testator, and which the testator took away with him unsigned, saying he would sign it when he found another witness; which he did. 8 § 281. Where Signature Must be Attested. The testa- tor is by statute required to sign, or acknowledge such signature, in the presence of the witnesses in Arkansas, California, Idaho, Indian Territory, Montana, New Jer- sey, New York, North Dakota, Oklahoma, Ohio, Rhode Island, and South Dakota. 9 And under such statutes it has been held that though the will be in fact signed when presented by the testator to the witnesses for their sig- natures, the attestation is defective and the will cannot 4 Schlerbaum v. Schamme (1900), 157 154 111. 610, 39 N. B. 581, 45 Am. St. Mo. 1, 57 S. W. 526, 80 Am. St Rep. Rep. 151 ; Porter's Will (1892), 20 D. 604; Ortt v. Leonhardt (1903, Mo. C. 493. App.), 74 S. W. 423; Claflin's Will 7 Gould v. Chicago T. S. (1901), 189 (1901), 73 Vt. 129, 50 Atl. 815, 87 Am. 111. 282, 69 N. E. 536, 6 Prob. R. A. St. Rep 693, 7 Pro. R. A. 7. 398. 5 White v. Trustees British Mus. Contra.. The contrary was held In (1829), 6 Blng. 310, 19 E. C. L. 145, a recent case In Minnesota, but none Abbott, p. 300, 3 M. & Payne 689. This of the cases above referred to are cited, is a leading case, and much cited. and the opinion states that no decisions e Dewey v. Dewey (1840), 1 Mete, were found by the court not in accord (42 Mass.) 349, 35 Am. Dec. 367 ; with the views expressed. Tobln v. Hogan v. Grosvenor (1845), 10 Mete. Haack (1900), 79 Minn. 101, 81 N. (51 Mass.) 54, 43 Am. Dec. 414; W. 758, 5 Prob. R. A. 409. Sprague v. Luther (1865), 8 R. I. 252; 8 Reed v. Watson (1867), 27 Ind. Simmons v. Leonard (1892), 91 Tenn. 443. 183, 18 S. W. 280, Mechem, 56, 30 Am. 8 See statutes cited ante, § 241. St. Rep. 875 ; Hobart v. Hobart (1895), 12 § 282 WILLS. 178 be allowed probate if tbe signature was so covered up by the testator that the witnesses could not see it. 10 If the signature was made in the presence of the witnesses, it is held not fatal that they did not look at the testator while he wrote it. 11 When signed before the witnesses were called, the signature is held sufficiently acknowledged by the testator producing the paper with the signature in full view, declaring it to be his will, and requesting the wit- nesses to sign, without mentioning the signature, 12 and even, it would seem, though the witnesses did not notice the signature at all. 13 § 282. Whether Signing Includes Attesting. In view of these holdings, that the witness need not see the will signed, nor the signature when made, nor the whole of the will, and need not know the contents, nor that the testator knows the contents, nor even know that it is a will; some judges have gone so far as to say that the word "attested" in the statute imports nothing beyond what is meant by "subscribed," and might as well have been omitted; that is to say, that witnesses attest by subscrib- ing, that subscribing is attesting. 14 But this seems to be assuming too much. It may be admitted that if witnesses loMackay's Will (1888), 110 N. Y. not see the signature; but the testator 611, 18 N. E. 433, 1 L. E. A. 491, 6 then declared to him that he had signed Am. St. Rep. 409, Mechem, 55, Chaplin, it. Held sufficient. Willis v. Mott 239; Laudy, Matter of (1897), 14 App. (1867), 36 N. Y. 497, and see Pear- Div. 160, 43 N. Y. Supp. 689, on former son v. Pearson (1871), L. E. 2 P. & D. appeal (1896), 148 N. Y. 403, 42 N. 451. B 1061. i3Daintree v. Fasulo (1888), 13 P. The signature having been concealed D. 67; Turell, Matter of (1900), 47 by the testator from one witness, but App. Div. (N. Y.) 560, 62 N. Y. Supp. shown and acknowledged to the other, 1053. the will was held to be well attested. Contra: Keyl v. Feuchter (1897), 56 Payne v. Payne (1891), 54 Ark. 415, Ohio St. 424, 47 N. E. 140. 16 S. W. 1, and see Fischer v. Popham And see Cole's Will (1900, N. J. (1875), L. E. 3 P. & D. 246. Bq.), 47 Atl. 385. li Sprague v. Luther (1865), 8 E. I. Witnesses being unable to remember 252. the signature being shown or men- Or though looking did not see tloned, due execution was presumed, what she wrote. Lacey v. Dobbs (1900), Hennes v. Huston (1900), 81 Minn. 61 N. J. Bq. 575, 47 Atl. 481, 92 Am. 30, 83 N. W. 439, 5 Pro. E. A. 716. St. Eep. 667, 55 L. E. A. 580. a Skinner v. American Bib. S. i2Baskin v. Baskin (1867), 36 N. (1896), 92 Wis. 209, 65 N. W. 1037. Y. 416, Chaplin, 237. And see Cole's Will (1900, N. J.) The paper was so folded when pre- Bq., 47 Atl. 385. sented to the witness that he could 179 FOEMALITIES EEQUIEED IN MAKING WILLS. § 283 subscribe as such at the request of the testator, express or implied, there is a sufficient attestation without any- thing more; but this is so only because the express or im- plied request by the testator to them to so subscribe necessarily includes in itself an admission to them that the instrument is his and accepted and approved. There- fore, attesting a -will under the Statute of Frauds, and under the statutes of most of the-states, consists of learn- ing from the testator in some way that the particular writing witnessed is finally approved by him. 15 § 283. Implied Acknowledgment Sufficient. 16 It is not necessary that the testator should in so many words say to the witnesses, "I acknowledge this writing." There is a sufficient implied acknowledgment in the fact that the testator asks the witnesses to sign the writing as wit- nesses; 17 or admits the instrument in answer to a question put by the scrivener; 18 or calls them to witness his will and sits mute while the scrivener hands out the will to be subscribed; 19 or is still while the scrivener declares the writing to be the testator's will and says the testator wants the witnesses to subscribe it. 20 If the witness sees the testator sign, no further acknowledgment is needed; 21 and when the witness heard the testator call for the will that he might sign it, and on entering the room a moment later saw the will before the testator with the name isClaflIn, In re (1902), — Vt. — , 54 Cal. 509; Bourke v. Wilson (1886), 52 Atl. 1053, 58 L. R. A. 261; Koh- 38 La. An. 320. ley's Estate (1902), 200 111. 189, 65 N. 19 Allison v. Allison (1867), 46 III. E. 699. 61, 92 Am. Dec. 237. 16 See note 84 Am. Dec. 241. 20 pull's Will (1902), 117 Iowa, 738, 17 Hogan v. Grosvenor (1845), 10 89 N. W. 979; Ames v. Ames (1902), Mete. (51 Mass.) 54, 43 Am. Dec. 414; 40 Ore. 495, 67 Pac. 737; Huff v. Huff Tilden v. Tilden (1859), 13 Gray (79 (1871), 41 Ga. 696; Nelson, Matter Mass.) 110; Raudebaugh v. Shel- of (1894), 141 N. T. 152, 36 N. E. 3; ley (1856), 6 Ohio St. 307; Bla v. Peck v. Cary (1862), 38 Barb. 77, Edwards (1860), 16 Gray (82 Mass.) affirmed In 27 N. Y. 9; Denton v. 91, reviewing several Massachusetts Franklin (1848), 9 B. Mon. (48 Ky.) cases; Grimm v. Tittman (1892), 113 28. Mo. 56, 20 S. W. 664; Gould v. Chi- 21 Schierbaum v. Schemme (1900), cago T. S. (1901), 189 111. 282, 59 N. 157 Mo. 1, 57 S. W. 526, 80 Am. St. B. 536, 6 Prob. R. A. 398. Rep. 604; Webster v. Yorty (1902), is Hall v. Hall (1835), 17 Pick. (34 194 111. 408, 62 N. E. 907. Mass.) 373; Toomes' Estate (1880), § 284 WILLS. 180 signed, and thereupon himself signed it as a witness, it was held sufficient. 22 § 284. Insufficient Attestation. If the witness has an- other sign his name for him, and does not take the paper into his hands nor examine it with sufficient care to see anything upon it by which he can identify it afterwards as the paper executed by the testator his attestation is insufficient. 23 There is no sufficient attestation of interlineations, by witnesses who sign their names at the end of a clause mentioning them, if the will is folded so that they do not know how many or what interlineations are made. 24 An attestation by one and a subscription by another will not do; the attesting witness must be a subscribing witness. 25 Mere subscription will not suffice if the witness has not in any way learned from the testator by his statements, acts, or acquiescence that the paper is executed by him. 28 § 285. What is Sufficient Publication. In the states where publication is necessary because expressly required by statute, 21 the object is to protect the testator against having a will fraudulently procured from him when he supposed he was executing some other instrument. With this object in view, it is held, that a declaration by the testator that the instrument is his free act and deed, or that the signature is his, will not satisfy the statute; 28 that mere knowledge by the witness of the fact that the paper is a will, if obtained from anyone other than the testator, or from him at any other time than when the 22 Smith y. Holden (1897), 58 Kan. another out of the hearing of the tes- 535, 50 Pac. 447. tator do not count. Ludlow v. Ludlow 23 Simmons v. Leonard (1892), 91 (1882), 35 N. J. Eq. 480, affirmed on Tenn. 183, 18 S. W. 280, Mechem 56, appeal (1883), 36 N. 3. Eq. 597; Koh- 30 Am. St. Rep. 875. And see Crow- ley's Estate (1900), 200 111. 189, 65 ley v. Crowley (1875), 80 III. 469. N. E. 699. 24 Pennlman's Will (1873), 20 Minn. 27 See ante, § 279. 245, 18 Am. Eep. 368. 28 Lewis v. Lewis (1854), 11 N. T. 25 Sloan v. Sloan (1900), 184 111. 220, Chaplin, 242 ; Clark v. Clark 579, 56 N. E. 952. (1902), — N. J. Eq. — , 52 Atl, 225, 2SLnper v. Werts (1890), 19 Ore. affirming 52 Atl. 222 ; Darnell v. Buzby 122, 23 Pac. 850; Richardson v. Orth (1893), 50 N. J. Eq. 725, 26 Atl. 676; (1901), 40 Ore. 252, 66 Pac. 925. Ludlow v. Ludlow (1883), 36 N. J. Statements made to the witness by Eq. 597, 601. 181 FORMALITIES REQUIRED IN MAKING WILLS. §286 will is executed, is not enough. 29 On the other hand, any communication by the testator to the witnesses, whereby he makes known to them that he intends the instrument to take effect as his will is sufficient. Thus, if he, or some- one for him and in his presence, asks the witnesses to attest and subscribe his will, 30 or they hear it read in his presence and then subscribe it at his request, 31 the statute is satisfied. "SUBSCRIBED."32 § 286. American Statutes. In Pennsylvania the lan- guage of the statute is that the will shall be "proved by the oaths" of two witnesses, and it is held that no sub- scribing witnesses are required. 33 In Iowa and Wyoming the statutes do not say that witnesses shall sign, but require wills to be "witnessed." In Connecticut, Colo- rado, Illinois, Mississippi, New Mexico, and Vermont the statutes are similarly indefinite, merely requiring wills to be "attested" by witnesses. 34 But both of these forms of expression are held to require that the will shall be signed by the witnesses. 35 In all the other states and territories there is express language requiring the wit- nesses to sign or subscribe. 36 § 287. Attestation Clause Unnecessary. A few of the statutes expressly declare that no attestation clause shall be necessary, and no statute expressly requires any. All courts agree that there need be nothing on the face of the 29 Gilbert v. Knox (1873), 52 N. T. 31 Lane v. Lane (1884), 95 N. T. 494, 125. Chaplin 244 ; Rogers v. Diamond That the witness was told by the tea- (1853), 13 Ark. (8 Eng.) 474, 489; tator to come at a certain hour to wit- Bouthemy v. Dreux (1823), 12 Martin ness his will, and he did so, was said (La.) 639. to be sufficient. Bobbins v. Bobbins 32 See note 5 Pro. B. A. 614. (1893), 50 N. 3. Eq. 742, 26 Atl. 33 Frew v. Clarke (1875), 80 Pa. St. 673 170, 178. See statutes cited ante, § 30 Coffin v. Coffin (1861), 23 N. T. 241. 9, 80 Am. Dec. 235 ; Voorhis, Matter 3* See statutes cited ante, § 241. of (1891), 125 N. T. 765, 26 N. E. 35 Boyeus, Matter of (1867), 23 Iowa, 935; Hlggins, Matter of (1884), 94 N. 354; McCarn v. Rundall (1900), 111 Y. 554; Ayres v. Ayres (1887), 43 N. Iowa, 406, 82 N. W. 924, 5 Pro. R. A. J Eq 565, 12 Atl. 621; Pfarr v. Bel- 624; Sloan v. Sloan (1900), 184 111. mont (1887), 39 La. An. 294, 1 South. 579, 56 N. E. 952. 681_ 36 See statutes cited ante, § 241. § 288 WILLS. 182 will to show: in what capacity the witnesses signed; that they saw the testator sign or heard him acknowledge; nor that they signed in his presence, at his request, and in the presence of each other. The statute merely re- quires that the witnesses subscribe; no attestation clause is necessary; and whether it be perfect, defective, or omitted entirely, the facts may be proved by parol. 37 §288. Advantages of Having a Full Attestation Clause. Of course no prudent man would execute a will without having the witnesses read and subscribe a full and explicit attestation clause, indorsed at the end of the will. If the witnesses are dishonest, forget, or be- come hostile, the fate of the will may depend on whether this precaution has been observed, as we shall see when we come to the proof of wills. 38 I would recommend the use of the following clause as satisfying all the require- ments under most statutes: The above instrument, composed of ten sheets, all marked with our initials, and fastened together with brass eyelets, was, this tenth day of December, A. D. 1903, signed, sealed, and published, by John Smith, as his last will and testament, in the j oint presence of the undersigned, the said John Smith then being of sound and vigorous mind and free from any constraint or compulsion; whereupon we, being without any interest 37 English — The leading case on this Michigan — Ferris v. Neville (1901), point is Hands v. James (1736), 2 127 Mich. 444, 86 N. W. 960, 54 L. R. Comyns. 531. The following are a A. 464. few of the most important cases in Missouri — Berberet v. Berberet which the same rule has been declared (1895), 131 Mo. 399, 33 S. W. 61, 52 and applied: Roberts v. Phillips Am. St. Rep. 634. (1855), 4 El. & Bl. 450, 82 E. C. L. Nebraska — Williams v. Miles (1903), 450, 30 Eng. L. & Eq. 147, 24 L. T. — Neb. — , 94 N. W. 705. 337, 24 L. J. (n. s.) Q. B. 171. New York — Chaffee v. Baptist M. C. Alabama — Woodruff v. Hundley (1843), 10 Paige Ch. (N. T.) 85, 40 (1900), 127 Ala. 640, 29 South. 98, 85 Am. Dec. 225. Am. St. Rep. 145. Oklahoma — Ward v. Board of Com'rs. Georgia— Huff v. Huff (1871), 41 Ga. (1902), — Okl. — , 70 Pac. 378. 696. Virginia — Pollock v. Glassell (1846), Illinois — Robinson v. Brewster 2 Gratt. (Va.) 439, 464. (1892), 140 111. 649, 30 N. E. 683, 33 In Louisiana the civil code requires Am. -St. Rep. 265, Abbott, p. 295. all of the essential acts to appear on Indiana — Olerick v. Ross (1896), 146 the face of the will, such as the resi- Ind. 282, 45 N. E. 192. dence and qualification of the witnesses, Iowa — Hull's Will (1902), 117 Iowa why testator could not sign his name, 738, 89 N. W. 979. etc. Carroll's Succession (1876), 28 Maine — Deake's Appeal (1888), 80 La. An. 388; Marqueze's Succession Me. 50, 12 Atl. 790. (1898), 50 La. An. 66, 23 South. 106. Massachusetts — Ela v. Edwards 38 See post, f (1860), 16 Gray (82 Mass.) 91, 95. 183 FORMALITIES REQUIRED IN MAKING WILLS. § 289 in the matter other than friendship, and being well acquainted with him, but not members of his family, immediately subscribed our names hereto in the presence of each other and of the said testator, for the purpose of attesting the said will, as he requested us to do. ROTAL S. COPELAND, Physician, 520 S. State St., Ann Arbor. GEORGE WAHR, Merchant, 720 N. Division St., Ann Arbor. A. J. SAWYER, Attorney, 216 W. Monroe St., Ann Arbor. § 289. Request to Sign. No request by the testator to the witness to attest and subscribe need ordinarily be proved or made. Knowledge and acquiescence by him are enough. 39 But under any statute it must be done with his knowledge and express or implied assent and sanc- tion, 1 and in Arkansas, California, Idaho, Montana, New York, North Dakota, Oklahoma, South Dakota, and Utah, the statutes expressly require that the witnesses shall sign at the request of the testator. 2 The decisions on these statutes hold them to be satisfied by a request by another for the testator and in his presence, 3 or by any acts by him from which his wish or sanction can be im- plied. 4 § 290. Need Not Sign in Presence of Each Other. The Statute of Frauds did not require the witnesses to sign in the presence of each other; and where the statute does not expressly require it it is unnecessary. 40 There are 39 Georgia — Huff v. Huff (1871), 41 Virginia — Cheatham v. Hatcher Ga. 696, 703. (1878), 30 Gratt. (71 Va.) 56, 66, 32 Illinois — Harp v. Parr (1897), 168 Am. Rep. 650. 111. 459, 48 N. E. 113. Wisconsin — Meurer's Will (1878), 44 Indiana — Herbert v. Berrier (1881), Wis. 392, 399, 28 Am. Rep. 591. 81 Ind. 1, 3 Am. Pro. R. 154. l Gross v. Burneston (1900), 91 Md. I 0wa — Hull's Will (1902), 117 Iowa 383, 46 Atl. 993 ; Bundy v. Knight 738, 89 N. W. 979. (1874), 48 Ind. 502, 506. Minnesota — Allen's Will (1878), 25 2 See statutes cited ante, § 241. Minn. 39. 3 Nelson, Matter of (1894), 141 N. Missouri — Schierbaum X. Schemme T. 152, 157, 36 N. E. 3 ; Gilman, Mat- (1900), 157 Mo. 1, 57 S. W. 526, 80 ter of (1862), 38 Barb. (N. T.) 364. Am. St. Rep. 604 ; Martin v. Bowdern But not if he was too weak to com- (1900), 158 Mo. 379, 59 S. W. 227. prehend or reply. Heath v. Cole (1878), Nebraska — Thompson v. Thompson 15 Hun. (N. T.) 100. (1896), 49 Neb. 157, 68 N. W. 372. 4 Coffin v. Coffin (1861), 23 N. T. New Jersey — Ayres v. Ayres (1887), 9, 80 Am. Dec. 235, and notes, Chaplin 43 N. J. Bq. 565, 12 Atl. 621. 265; Hutchings v. Cochrane (1853), 2 North Carolina — Barney v. Allen Brad. Sur. (N. T.) 295. (1899), 125 N. Car. 314, 34 S. E. 500, iOAlaoama — Moore v. Spier (1885), 74 Am.' St. Rep. 637. 80 Ala. 129. Oregon — Skinner v. Lewis (1902), 40 Arkansas — Rogers v. Diamond Ore. 571, 67 Pac. 951. (1853), 13 Ark. (8 Bng.) 474, 487. 291 WILLS. 184 statutes expressly requiring it in only six states: Louis- iana, South Carolina, New Mexico, Utah, Vermont, and Wisconsin. 41 Under statutes requiring signing in joint presence, the will is held valid though the witnesses do not notice each other sign. Presence only is required. 42 §291. Signing After the Death of the Testator. When the testatrix signed and requested the witnesses to sign, but died before the last one had done so, it was well held that the will was not duly executed. Signing after the death of the testatrix was insufficient, because the will must take effect at death if at all. 43 § 292. Effect of Witnesses Signing First. 44 By at- testing the witnesses learn that the testator executes the paper; by subscribing they so mark the paper that they District of Columbia — Porter's Will (1892), 20 D. C. 493. Georgia — Webb v. Fleming (1860), SO Ga. 808, 76 Am. Dec. 675. Illinois — Flinn v. Owen (1871), 58 111. 111. Indiana — Johnson v. Johnson (1886), 106 Ind. 475, 7 N. B. 201, 55 Am. Rep. 762. Maine— Deake's Appeal (1888), 80 Me. 50, 12 Atl. 790. Massachusetts — Ela v. Edwards 1(1860), 16 Gray (82 Mass.) 91. Missouri — Cravens v. Faulconer (1859), 28 Mo. 19. Grimm v. Tittman (1892), 113 Mo. 56, 20 S. W. 664. New Torfc— Willis v. Mott (1867), 86 N. T. 486, 497. Ohio — Raudebaugh v. Shelley (1856), 6 Ohio St. 307. South Carolina — Verdier v. Verdier (1855), 8 Rich. L. (S. Car.) 135. Wisconsin — Smith's Will (1881), 52 Wis. 543, 8 N. W. 616, 38 Am. Rep. 756. Witnesses are not required to sign in the presence of each other by reason of the statute requiring the will to be signed or acknowledged by the testator in the joint presence of the witnesses. Parramore v. Taylor (1854), 11 Gratt. (Va.) 220, 252; Clark's Will (1900, N. J. Bq.), 52 Atl. 222; affirmed but doubting on this point Clark v. Clark (1902), — N. J. Eq. — , 52 Atl. 225. Four years and a thousand miles in- tervening between the two attestations the will was held not well executed. Patterson v. Ransom (1876), 55 Ind. 402. *i See statutes cited ante, § 241. Failure to observe the requirement in this respect is of course fatal. Lane's Appeal (1889), 57 Conn. 182, 17 Atl. 926; Roberts v. Welch (1873), 46 Vt. 164; Monroe v. Liebman (1895), 47 La. An. 155, 16 South. 734 ; Claflin's Will (1902), — Vt. — , 52 Atl. 1053, 58 L. R. A. 261 ; Casement v. Fulton (1845), 5 Moore P. C. 130. One witness and the testator ac- knowledged at the same time to the other witnesses, who then signed. Held insufficient. Wyatt v. Berry (1892), Ii. R. 18 P. D. 5, 62 L. J. (n. s.) P. 28, 68 L. T. 416. 42BIanchard v. Blanchard (1859), 32 Vt. 62; Claflin's Will (1901), 73 Vt. 129, 50 Atl. 815, 87 Am. St. Rep. 693, 7 Pro. R. A. 7 ; but see same case (1902), — Vt. — , 52 Atl. 1053, 58 L. R. A. 261. As to what is presence see post, §§ 301-307. 43 Fish, Matter of (1895), 88 Hun. 56, 34 N. Y. Supp. 536. This decision was made under a statute not requir- ing wills to be signed in the presence of the testator. 44 See note 14 L. R. A. 160. 185 FORMALITIES REQUIRED IN MAKING WILLS. § 293 may afterwards be able to identify it as the same one which they attested the execution of. It is not easy to see how the accomplishment of either of these purposes is in any way embarrassed by the fact that the identify- ing marks, the witnesses signatures, are made before they attest the execution of the will, provided both acts are done at the same meeting or occasion. This is the view taken by many courts. They hold the will well executed though the witnesses signed before the testator. 45 But the contrary is held in England, Georgia, Massachusetts, and New York, and admitted in Wisconsin. 46 In none of these states do the statutes contain any provisions as to the order in which the testator and witnesses shall sign. § 293. If Witnesses Sign Before Will Written. It has been held that the signatures of the testator and wit- nesses written at the completion of the will. were suffi- cient to support a clause interlined by the testator in the presence of both witnesses four days later; all of whom then adopted their former signatures to authenticate the added clause. The cOurt said the rewriting of the names would have been useless ceremony. 47 But this doctrine 45 Connecticut — O'Brien v. Galagher Virginia — Eosser v. Franklin (1849), (1856), 25 Conn. 229. 6 Graft (Va.) 1, 52 Am. Dec. 97. Illinois — Gibson v. Nelaon (1899), 46 Georgia — Brooks v. Woodson 181 111. 122, 54 N. H. 901, 5 Pro. B. (1891), 87 Ga. 379, 13 S. -E. 712, and An. 67, 72 Am. St. Eep. 254. see note, 14 L. E. A. 160. Kentucky — Swift v. Wiley (1840), Massachusetts — Marshall v. Mason 1 B. Mon. (40 Ky.) 114, a leading (1900), 176 Mass. 216, 57 N. B. 340, case; Securest v. Edwards (1862), 4 5 Pro. E. An. 613. Mete. (Ky.) 163, 167. New York — Jackson v. Jackson Sew Jersey— Lacey v. Dobbs (1900), (1868), 39 N. T. 153, 162; Sisters of 61 N. J. Eq. 575, 47 Atl. 481, 55 L. Charity v. Kelly (1876), 67 N. Y. 413. B A 580, 92 Am. St. Eep. 667. England— Byrd, Goods of (1842), 3 „..„,, „ ^, „ , Curteis 117, 7 Eng. Ecc. 391 ; Cooper «S£ .^"T *' I' J^ler v . Bockett (1843)i 3 Curt . 648> 7 Eng . (1902), 130 N. Car. 1, 40 S. E. 689, Ecc 537 Held that the will was entitled to probate because the proof did not show that the witnesses signed first. Lewis's Pennsylvania — Miller v. McNeill will (1881), 51 Wis. 101, 113, 7 N. 89 Am. St. Eep. 854, 57 L. E. A. 209, 7 Pro. E. A. 559, qualifying earlier de- cisions. (1860), 35 Pa. St. 817, 78 Am. Dec. \y. 829. 333. S»e also Fowler v. Stagner (188i), 5 1 47 E. 16, 61 Am. St. Eep. 808. 389. South Carolina — Kaufman v. Cangh- 55 Tex. 393, 400. man (1897), 49 S. Car. 159, 27 S. 47 Wright v. Wright (1854), 5 Ind. § 294 WILLS. 186 has been repudiated in a late case, very similar in facts; 48 and I doubt its recognition elsewhere. § 294. Intention of Witness. 49 The purpose of the witness in writing his name is important. The statute is satisfied only by a signature made for the purpose of at- testing. The position of the signatures being where wit- nesses ordinarily sign, or under an attestation clause, in- tention to attest would be presumed; 49a or being signed in an unusual place the contrary will be presumed. 80 In- tent to witness was found when the signature was, "Executor, J. F. Honer;" 51 when it was "Written by S. S. Ashton;" 52 and when the witness, being a notary, justice, or clerk, wrote a certificate of acknowledgment before his name, as though the testator had acknowledged the will to him. 63 But the contrary was held when he signed for the testator, adding, "By M. H." and did not sign again. 64 When one signed the name of a witness for bim, the name written could not be treated as the signature of the one writing it, for he did not so intend 48 Hesterberg v. Clark (1897), 166 swore that such, was the intent. Pat- Ill. 241, 46 N. B. 734, 57 Am. St. Rep. terson v. Ransom (1876), 55 Ind. 402. 135, 2 Pro. R. A. 148. But see Potts v. Felton (1880), 70 Ind. 49 Compare ante, § 255, on testator's 166, and cases cited nnder the para- signature, graph on position of signature, post 49a A witness who had signed in the §§ 295-297. usual place could not tell what he 51 Griffiths v. Griffiths (1871), L. signed for ; and the will was very R. 2 P. & D. 300. properly allowed. Skinner v. Ameri- 62 Pollock v. Glassell (1846), 2 Grat. can Bib. Soc. (1896), 92 Wis. 209, (Va.) 439, 463; Tevis v. Pitcher 65 N. W. 1037. (1858), 10 Cal. 466, 478. It being claimed that the devise was 53 Hull's Will (1902), 117 Iowa 738. void because the devisee signed as a 89 N. W. 979; Payne v. Payne (1891), witness, parol evidence was received 54 Ark. 415, 16 S. W. 1 ; Murray v. to show that he signed for another Murphy (1860), 39 Miss. 214; Pranks purpose. Boone v. Lewis (1889), 103 v. Chapman (1885), 64 Tex. 159. N. Car. 40, 9 S. B. 644, 14 Am. St. Rep. 54 Peake v. Jenkins (1885), 80 Va. 783; Sharman, Goods of (1869), L. R. 293; Burton v. Brown (1898, Miss.), 1 P. & D. 661. 25 South. 61. 50 Wilson, Goods of (1866), L. R. 1 Contra: Abraham v. Wilkins (1856), P. & D. 269, Chaplin 274 Abbott, p. 17 Ark. 292, 319. 312. The statute was held not satisfied by On the back of the will was the state- signing apparently to witness delivery ment, "The within is the basis on which of will to a notary. Vogel v. Lehritter I desire to have my affairs disposed of. (1893), 139 N. Y. 223, 34 N. E. 914; C. H. Ransom. Witness F. F. Hyatt." Dunn v. Dunn (1866), L. R. 1 P. & D. The court held that this was not wit- 277. Or to accept as executors. Wil- nessing the will though the witness son, Goods of (1866), same, 269. 187 FOBMALITIES EEQTJIBED IN MAKING WILLS. § 295 it. 5B So, when he crossed an F in his own name already written on another occasion, 66 or added his address to it. BT So, when he abandoned the attempt after writing part of his first name. 58 § 295. Statutes as to Position of Signature. The sig- natures of the witnesses are required by express statute to be at the end of the will, in Arkansas, California, Idaho, Montana, North Dakota, New York, Oklahoma, South Dakota, and Utah. 59 Wills must be "witnessed" in Iowa, and Wyoming; "proved by the oaths" in Pennsylvania; and "attested" in Connecticut, Colorado, Illinois, Missis- sippi, New Mexico, and Vermont; thus leaving the place of signing wholly unspecified. In the rest of the states and territories, wills are required to be "subscribed," as under the Statute of Frauds. 60 § 29B. Position of Signature Under Statute of Frauds. It will be noted that the Statute of Frauds required the 55Duggins, Goods of (1870), 22 L. T/ (n. s.) 182, 39 L. J. (n. s.), P. 24; Enyon, Goods of (1873), L. E. 3 P. & D. 92, 29 L. T. (n. s.) 45, 21 W. R. 856, 42 L. J. (n. s.), P- 52; Leroy, ex parte (1855), 3 Brad. Sur. (N. T.) 227, Chaplin 268. 56 Hindmarsh v. Charlton (1861), 8 H. L. Cas. 160, 7 Jur. (n. s.) 611, 4 h. T. (n. s.) 125, 9 W. R. 521, Abbott, p. 313. 57 Trevanion, Goods of (1850), 2 Rob. Bcc. 311. But see Leonard, ex parte (1893), 39 S. Car. 518, 18 S. E. 216, 22 L. R. A. 302. ssMaddock, Goods of (1874), L. R. 3 P. & D. 169, 30 L. T. (n. s.) 696, 22 W. R. 741, 43 L. J. (n. s.), P. 29, Ab- bott, p. 322. Compare ante, § 256, on testator's signature. 59 See statutes cited ante, § 241. Decisions on Signing at End. The will was well signed by the witnesses though an attestation clause reciting interlineations intervened between the end of the will where the testator signed and the place where the wit- nesses signed. McDonough v. Lough- lin (1855), 20 Barb. (N. T.) 238, 244. Note-paper being folded and fastened together like a book, the testator wrote his will only on the left hand pages. He signed so near the bottom of a page that there was not room for an attestation clause ; so one was written on the next left-hand page, leaving a whole page blank between. Will sus- tained, because nothing was written be- tween. Gilman v. Gilman (1861), 1 Redf. Sur. (N. T.) 354, 38 Barb. 364. But see Soward v. Soward (1863), 1 Duvall (Ky.) 126. The testator signed two lines from the bottom of the page. The witnesses signed an attestation clause on the next page, and it was held sufficient. Dayger, Matter of (1888), 47 Hun. (N. T.) 127. Signatures on a blank page in the middle of the will were held insuffi- cient. Heady's Will (1873, Westches- ter Surrogate), 15 Abb. Pr. (n. s.) 211. Matter being written after the at- testation clause defeats the will. Case, Matter of (1885), 4 Dem. Sur. (N. T.) 124. Signing on the envelope in which the will is sealed is Insufficient. Vogel v. Lehritter (1893), 139 N. T. 223, 34 N. E. 914. Compare also § 259 ante on testa- tor signing at the end. eo See statutes ante, § 241. § 297 WILLS. 188 testator to " sign ' ' and the witnesses ' ' subscribe. ' ' This change of expression was claimed to show that it was in- tended to require the witnesses to subscribe (write under) in the sense of signing at the end. After a full argument it was held in an elaborate opinion by Lord Campbell, C. J., in Eoberts v. Phillips (1855), 61 that a signature any- where on the instrument satisfied the statute, if written for the purpose of attesting. This decision has been fol- lowed under similar statutes, generally; and wills sus- tained when the witnesses signed in the attestation clause; 62 above it; 63 on the opposite side of the sheet signed by the testator; 64 at the end of the will, to attest it and a clause below, added and signed as a codicil be- fore the will was signed; 65 or signed in the margin, to attest the will as a whole and also certain interlineations made opposite the signatures. 66 But in Kentucky the word subscribed is held to require the witnesses to sign at the end of the will. 6T §297. Signature on Separate Paper. The signatures of the witnesses are required to identify the paper as the one executed by the testator. The words and the purpose of the statutes require that the signatures shall be affixed to some part of the will, or to some paper physically an- nexed thereto. In a very old case, two witnesses sub- scribed a will, and two a codicil affirming it. This was claimed to supply the required number (three), but the ei 4 El. & BI. 450, 82 E. C. L. 450, 16 P. D. 172, 60 L. J. P. 56, 39 W. K. 30 Eng. L. & Eq. 147, 24 L. J. Q. B. 432. 171, 1 Jur. (n. s.) 444. The testator's wife signed a state- 62 Franks v. Chapman (1885), 64 ment indorsed on the will by which she Tex. 159. agreed to its terms. By mistake the 63Moale v. Cutting (1882), 59 Md. witness signed under this statement, 510, 519. and the will was held to be well exe- See also citations under § 257. cuted. Potts v. Felton (1880), 70 Ind. 64Chamney, Goods of (1849), 1 Bob. 166. Ecc. 757. 67 Soward v. Soward (1863), 1 Du- 65 Fowler v. Stagner (1881), 55 Tex. vail 126, in which the will was held not 393. to be well executed when the witnesses So when a codicil on the same sheet signed on the back of the will after was signed to attest the whole. Carle- It was sealed up. The Supreme Court ton v. Griffin (1758), 1 Burr. 549, Ab- of Indiana has also intimated that the bott, p. 333. will was not well executed by a signa- 66 Streatley, Goods of (1891), L. E. ture on the back of it. Patterson v. Ransom (1876), 55 Ind. 402. 189 FORMALITIES REQUIRED IN MAKING WILLS. § 298 court held otherwise. 68 In a later case the will was drawn in duplicate; and by; accident the witnesses subscribed one copy and the testator the other. Tbe court held that neither could be allowed. 69 "While, as we have seen, 70 a will written on several loose sheets need only be signed by the witnesses on the sheet signed by the testator; sev- eral dispositions written on separate sheets, each signed by the testator and complete in itself, must each be signed by the witnesses. 71 But when a will and a codicil to it were executed at the same time, and the proof showed that the witnesses signed the will to attest both, both were allowed, though they were fastened together only, with a pin. 72 §298. Form of Witness's Signature. Prudence de- mands that no one be accepted as a subscribing witness who cannot write legibly, and that what he writes shall be his own name and address in full. But the statute is satisfied by the witness making a mark, 73 writing his 88 Lea v. Libb (1689), Carthew 35, 3 Salk. 395, 1 Shower 69, 88, Abbott p. 311. 60 Hatton, Goods of (1881), L. K. 6 P. D. 204, 50 L. J. P. 78, 30 W. R. 62, 46 J. P. 40. '"See ante § 248. "Pearse, Goods of (1867), L. R. 1 P. & D. 382. And compare Morris, Goods of (1873), 28 L. T. (n. s.) 745; Pbipps v. Biddell (1874), L. R. 3 P. & D. 166, 22 W. R. 742. "Braddock, Goods of (1876), L. R. 1 P. D. 433, 24 W. R. 1017, 45 L. J. P. 96. So when the signatures of the testator and witnesses and the attesta- tion clause were on a ■ paper fastened to the will by a string. Horsford, Goods of (1874), L. E..3P. S D. 211, 31 L. T. 553, 44 L. J. P. 9, 23 W. R. 211. • Compare Collins, Matter of (1879), 5 Redf. Sur. (N. T.) 20. Signatures on the envelope in which the will was sealed were held insuf- ficient under a statute requiring wit- nesses to sign at the end of the will. Vogel v. Lehritter (1893), 139 N. Y. 223, 34 N. B. 914. n Signing by Mark. Harrison v. Harrison (1803), 8 Ves. 185; Reaver's Appeal (1903), 96 Md. 735, 54 Att 875; Pridgen v. Pridgen (1852), 13 Ired. L. (35 N. Car.) 259 ; Den de Compton v. Mitton (1830), 7 Halst. (12 N. J. L.) 70; Ford v. Ford (1846), 7 Hump. (26 Tenn.) 92 ; Jesse v. Parker (1849), 6 Grat. (47 Va.) 57; compare § 255 ante, on testator's sig- nature. Under a statute providing that "a witness may attest by mark, provided he can swear to the same," a will so attested was allowed, though the wit- ness had no recollection of the matter. "Can it be possible that it was intended to revolutionize the law on the sub- ject, and make the validity of a will depend on the life, the eyesight, the continued sanity, the integrity, the memory, or the accessibility of the witness?" The court held the statute to mean provided the witness was com- petent to be sworn. Gillis v. Gillis (1895), 96 Ga. 1, 23 S. B. 107, 51 Am. St. Rep. 121, 30 L. R. A. 143. See also Thompson v. Davitte (1877), 59 Ga. 472. Wrong Name on Mark. It Is imma- terial that the testatrix wrote a wrong name against the mark made by the witness. Ashmore, Goods of (1843), 3 Curteis 756, 7 Bng. Ecc. 57S. § 299 WILLS. 190 initials, 74 or accidently writing some other name for his own, 75 or even a description of himself, as "servant to Mr. Spelling." 76 But there must be some visible mark made on the paper, some name or mark intended to rep- resent it. Running a dry pen over a signature previously written on some other occasion or for some other purpose will not do. 77 Even where the language of the statute is that the witness shall attest by writing (some statutes say subscribing, some signing) his "name," as is the case in about a third of the states, 78 the courts hold the requirement satisfied by a signing by mark. 79 § 299. Signature by Another. The courts seem to be agreed that a will is well signed by a witness, who does not know how to write, if he makes his mark and another writes his name, 80 if he holds the pen while his hand is guided by another, 81 and generally if he merely holds the top of the pen while the other writes the name. 82 It is hard to see what greater security there is in requiring the witness to touch the top of the pen than in permitting him to stand by while another writes his name by his 74 Christian, Goods of (1849), 2 Rob. '"Signing by Mark. Davis v. Ecc. 110, Chaplin 269; Adams v. Chap- Semmes (1888), 51 Ark. 49, 9 S. W. lin (1833), 1 Hill Ch. (S. Car.) 265. 434; Garrett v. Heflin (1893), 98 Ala. 70 Olliver, Goods of (1854), 2 Spink 615, 13 South. 326, 39 Am. St. Rep. Ad. & Ecc. 57. And see Ashmore, 89; Meehan v. Rourke (1853), 2 Brad. Goods of, above. Sur. (N. Y.) 385; Morris v. Kniffln Such a mistake held fatal when the (1861), 37 Barb. (N. Y.) 336. witness was signing his name to au- But see Walker's Estate (1895), 110 thenticate a signature for the testator Cal. 387, 42 Pac. 815, 52 Am. St. Rep. written by him. Walker's Estate 104, 30 L. R. A. 460. (1895), 110 Cal. 387, 42 Pac. 815, 52 so Reaver's Appeal (1903), 96 Md. Am. St. Rep. 104, 30 L. R. A. 460. 735, 54 Atl. 875 ; and cases cited in § "Sperling, Goods of (1863), 3 Sw. 297 above. & Tr. 272, 33 L. J. P. 25, 9 Jur. (N. S.) si Harrison v. Elvin (1842), 3 Q. 1205, 9 L. T. 348, 12 W. R. 354. B. (Ad. & El. N. S.) 117, 43 Eng. 77 Maddock, Goods of (1874), L. R. C. L. 658, 6 Jur. 849; Frith, Goods of 3 P. & D. 169, 30 L. T. (n. s.) 696, (1858), 1 Sw. & Tr. 8, 4 Jur. (N. S.) 22 W. R. 741, 43 L. J. (n. s.) P. 29, 288, 27 L. J. P. 6, 6 W. R. 262. Abbott p. 322; Home v. Featherstone 82 Lewis v. Lewis (J.861), 2 Sw. & (1895), 73 L. T. 32. Tr. 153, 4 L. T. 583, 31 L. J. P. 153, 78 As follows: Alabama, Arizona, 7 Jur. (N. S.) 688; Bell v. Hughes Arkansas, Hawaii, Idaho, Indian Ter- (1880), L. R. 5 Ir. 407; Montgomery v. ritory, Kentucky, Missouri, Montana, Perkins (1859), 2 Mete. (59 Ky.) 448, Nevada, New Jersey, New York, North 74 Am. Dec. 419 ; Campbell v. Logan Dakota, Oklahoma, Oregon, South Da- (1852), 2 Brad. Sur. (N. Y.) 90. kota, Texas, Utah, and Washington. See statutes cited ante, § 241. 191 FOBMALITIES EEQUIBED IN MAKING- WILLS. § 300 direction, since parol proof must be resorted to in estab- lishing either fact; and several courts have sustained wills subscribed for the witness in his presence, and without any physical participation by him in the act. 83 In Eng- land, and by a few courts in this country, it is held that another cannot sign for a witness, that such a signing does not satisfy. 84 §300. Place of Residence Required. In several statutes the witnesses are required under penalty to write their addresses opposite their signatures; but it is also provided that failure to do so shall not affect the validity of the will 85 g. "IN THE PRESENCE OF THE SAID DEVISOR." 86 §301. American Statutes. The statutes of all the states and territories, except Arkansas, Indian Ter- ritory, Iowa, New York, and "Wyoming, agree with the Statute of Frauds in requiring the witnesses to sign in the presence of the testator. 87 Wherever another is al- lowed to sign for the testator, it must be done in his presence, as under the Statute of Frauds. 88 Several statutes also require the witnesses to sign in the presence of each other. 89 Let us now review the decisions on this ss Schnee v. Schnee (1900), 61 Kan. Without saying what would be the 643, 60 Pac. 738, 5 Pro. E. A. 553 ; rule if unable to write, held that II Smythe v. Irlck (1895), 46 S. Car. one able to write took no physical part 299, 24 S. E. 69, 32 L. R. A. 77, 57 in the act, it was insufficient. Riley Am. St. Rep. 684; Strong's Will (1891), v. Riley (1860), 36 Ala. 496, Abbott p. 39 N. T. St. 852, 16 N. Y. Supp. 104, 298. Chaplin 270 ; Lord v. Lord (1876), 58 The Louisiana Civil Code requires N. Ham. 7, 42 Am. Rep. 565 ; Mock v. witnesses who cannot write to affix Kaufman (1903), 82- N. Y. Supp. 310; their marks. Civil Code (1900), Art. Upchurch v. Upchurch (1855), 16 B. 1582. Mon. (55 Ky.) 102; Jesse v. Parker 8S Such statutes are. found In Idaho, (1849), 6 Grat. (47 Va.) 57, 52 Am. Montana, New York, Oklahoma, South Dec. 102. Dakota and Utah. "McFarland v. Bush (1895), 94 The Louisiana code also requires ad- Tenn. 538, 29 S. W. 899, 45 Am. St. dresses of witnesses, as to which see Rep. 760; Simmons v. Leonard (1892), Marqueze's Succession (1897), 50 La. 91 Tenn. 183, 18 S. W. 280, 30 Am. An. 66, 23 So. 106. St. Rep. 875, Mechem 56; Horton v. n See notes 60 Am. Rep. 285; 28 Johnson (1855), 18 Ga. 396; Duggins, Am. Rep. 595-598; 36 Am. Dec. 320. Goods of (1870), 39 L. J. (n. s.) P. 8T See statutes cited ante, § 241. 24 22 L. T. (n. s.) 182; Leverlngton, 88 As to what states allow this see Goods of (1886), L. R. 11 P. 80, 55 L. ante, § 266. J. (n. s.) P. 62. e ' See witei S 290. § 302 WILLS. 192 phrase, wherever occurring in the statutes, to ascertain what construction has been given it. The provision seems simple enough, but the courts have had great difficulty, in determining what satisfies it, and have not always been able to agree. The purpose of requiring witnesses to sign in the presence of the testator is to prevent an- other paper being substituted for the will, fraudulently; and where witnesses are required to sign in the presence of each other, it is to make each a witness of the other, and also to render fabrication of testimony more difficult. § 302. Must be Conscious of the Act. A few questions in the construction of this provision are settled beyond cavil. In the first place, the testator must know what is being done. If he is asleep, or from any other cause in- sensible of passing events, a signing within a foot of his face, while his eyes were blankly staring at the paper, would not satisfy the statute. 90 And though he be con- scious and sufficiently near, a signing secretly done or without his knowing or realizing it would not do. 91 ? 303. It is Enough if He Can See. On the other hand, it is equally well settled that whatever the testator can see is in his presence. It need not be in the same room, nor even in the same house. A will subscribed in a law- yer's office while the testatrix sat in her carriage and could see through the window to where the witnesses were signing was held good. 92 So, when the testator sent the witnesses to another room, where he might have seen them through a broken window. 93 So, when the witnesses have gone to another room, and signed where the testator might have seen through an open door, doors, or pass- 90 Right v. Price (1779), 1 Doug. (1879), L. R. 5 P. D. 106. 32 Moak 241; Orndorff v. Hammer (1851), 12 357, 49 L. J. P. 25, 42 L. T. 327, 28 W. B. Mori. (Ky.) 619 ; Tucker v. Sandige R. 520. (1888), 85 Va. 546, 570, 8 S. E. 650. » 2 Casson v. Dade (1781), 1 Bro. Ch. Compare Fish, Matter of (1895), 88 99, Abbott p. 328, Dickins 586. Hun. 56, 34 N. T. Supp. 536, in which 9S The Leading Case, Shires v. Glas- a will was void because one witness cock (1688), 2 Salk. 688, Carth. 81, 1 signed after the testator was dead. L. Raym. 507, 1 Eq. Cas. Abr. 403, "Longford v. Byer (1721), 1 P. Abbott p. 326. This is the leading case Wins. 740 (dictum) ; Jenner v. Fflnch on this provision. 193 FORMALITIES REQUIRED IN MAKING WILLS. § 304 age, from the bed where he lay. 94 In all these and many- other cases it is declared to be unnecessary that he should actually see the witnesses sign. Were that necessary the will would be void if the testator even looked away. 95 It is no objection to the will that as soon as the testator had signed it he turned his face to the wall, and paid no further attention to the acts of the witnesses. 98 §304. Acknowledgment of Signature. The statute gives the witness no option to sign before the testator or acknowledge to him, and is not satisfied by the witness producing the will with his signature upon it and ac- knowledging it to the testator. 97 Going over the signa- tures with a dry pen in his presence is held to be no better. 98 He must sign in the presence of the testator. § 305. Is Presence Ability to See? Many, I would say most, of the decisions seem to make satisfaction of the statute as to presence depend on the ability of the testator to see the witnesses sign without materially changing his position; 99 admitting generally that it would be no objec- tion that he could not see without turning around, sitting up, or pushing aside a curtain, provided he had ability to do so; 1 but holding that it would not be sufficient that "Davy v. Smith (1694), 3 Salk. 395, Abbott, p. 316; Mendell v. Dunbar Abbott p. 327; Hopkins v. Wheeler (1897), 169 Mass. 74, 47 N. E. 402, 61 (1900), 21 R. I. 533, 45 Atl. 551, 79 Am. St. Rep. 277; Downie's Will Am. St. Rep. 819; Meurer's Will (1877), 42 Wis. 66, 60 Am. Rep. 285, (1878), 44 Wis. 393, 28 Am. Rep. 591; note; Pawtucket v. Ballow (1885), 15 Ambre v. Weishaar (1874), 74 111. 109. R. I. 58, 23 Atl. 43. So held even though it would have 98 Maddock, Goods of (1874) ; L. R. been necessary for her to raise herself 3 P. & D. 169, 30 L. T. (n. s.) 696, a little, which she did not do. Ray- 22 W. R. 741, 43 L. J. (n. s.) P. 29, mond v. Wagner (1901), 178 Mass. Abbott p. 322; Hindmarsh v. Carlton 315, 59 N. E. 811. (1861), L. R. 8 H. L. Cas^ 160, Ab- 86 See in particular the leading case bott p. 313, 7 Jur. (n. s.) 611, 9 W. of Shires v. Glascock, above. R. 521, 4 L. T. (n. s.) 125; Playne 88 Watson v. Pipes (1856), 32 Miss. v. Scriven (1849), 1 Rob. Ecc. 772. 451, 468. For further authority on "° The decisions on this point are the general proposition read : Orn- too numerous to be reviewed or even dorff v. Hummer (1851), 12 B. Mon. cited here; but those desirous of ex- (Ky.) 619; Maynard v. Vinton (1886), amining them at length will find them 59 Mich. 139, 26 N. W. 401, 60 Am. separately reviewed in detail in 28 Am. Rep. 276; Aiken v. Wickerly (1870), Rep. 595-598; which is a note pre- 19 Mich. 482, 505 ; Baldwin v. Bald- pared by Mr. Stewart, and originally win (1886), 81 Va. 405. published in 31 N. J. Eq. 242, as a "'Chase v. Kittredge (1865), 11 Al- note to Mandeville v. Parker (1879). len (93 Mass.) 49, 87 Am. Dec. 687, 1 Burney v. Allen (1899), 125 N. 13 § 306 WILLS. 194 he knew his will was being witnessed in another room, 2 and had ability to go there and see; much less, if he was confined to his bed. 3 Signing in the same room where the testator lay was held insufficient when he could not turn over so as to see the witnesses sign, 4 or could do so only at the risk of his life. 6 Some of the cases go so far as to hold that it is not enough to see the witnesses sign — that he must be able to see the will, and their names being signed. 6 § 306. When Present Though Unable to See. But the statutes do not say that the testator must be able to see the witnesses sign. And it is held, and does not seem to be denied, that a blind man may make a will; and that it is sufficiently witnessed in his presence if he is there, and knows what is being done. 7 In keeping with these de- cisions, is one sustaining a will signed by the witnesses in front of the door to the room in which the testator lay, and about nine feet from him; though he had been so injured that he could only lie on his back, and could not turn his head enough to see them sign. 8 There are also a few states in which wills have been sustained when the witnesses signed in another room, though not in front of the door, nor in sight of the testator; they being ab- Car. 314, 34 S. B. 500, 74 Am. St 43, 52 N. E. 368; Burney v. Allen Rep. 637, 5 Pro. R. A. 281; Walker (1899), 125 N. Car. 314, 34 S. E. 500, v. Walker (1890), 67 Miss. 529, 7 74 Am. St. Rep. 637, 5 Pro. R. A. 281; South. 491; Maynard v. Vinton (1886), Graham v. Graham (1849), 10 Ired. 59 Mich. 139, 26 N. W. 401, 60 Am. (N. Car.) 219. But see Tobin, In re Rep. 276; Trimnell, Goods of (1865), (1902), 196 111. 484, 63 N. B. 1021; 11 Jur. (n. s.) 248. But see Hamlin Ayres v. Ayres (1887), 43 N. J. Eq. v. Fletcher (1880), 64 Ga. 549. 565, 12 Atl. 621. "Witt V. Gardiner (1895), 158 111. 'Ray v. Hill (1849), 3 Strobh. (S. 176, 41 N. B. 781, 49 Am. St. Rep. Car.) 297, 49 Am. Deo. 647; Piercy, 150; Norton v. Bazett (1856), Deane Goods of (1845), 1 Rob. Bcc. 278, Ab- Bcc. 259. bott p. 330. •Mendell v. Dunbar (1897), 169 8 Riggs v. Riggs (1883), 135 Mass. Mass. 74, 47 N. B. 402, 61 Am. St 238, 46 Am. Rep. 464, Abbott p. 331. Rep. 277; Mandeville v. Parker (1879), So when the witnesses signed at the 31 N. J. Eq. 242 ; Downie's Will foot of the testator's bed, and behind (1877), 42 Wis. 66. the foot-board. Newton v. Clarke *Neil v. Neil (1829), 1 Leigh (Va.) (1839), 2 Curt Bcc. 320, 7 Bng. Bcc. 6, 11; Tribe v. Tribe (1849) 1 Rob, 125, Abbott p. 329; compare Orndorff Bcc. 775, 13 Jur. 793. v. Hummer (1851), 12 B. Mon. (Ky.) "Jones v. Tuck (1855), 3 Jones L. 619; Tobin, In re (1902), 196 111. (48 N. Car.) 202. 484, 63 N. B. 1021. «Drury v. Connell (1898), 177 111. 195 FORMALITIES REQUIRED IN MAKING WILLS. §307 sent from his room only long enough to sign, and return- ing with the will signed hy them, and showing him their signatures. 9 § 307. Presumption. Signing in the same room is pre- sumed to be in his presence; elsewhere, to be out of his presence. 10 h. "B? THREE OK FOUR." §308. American Statutes. In Louisiana, there must be three resident or five non-resident witnesses to a public will made before a notary; five resident or seven non-resi- dent witnesses to a private will; a notary and three other Witnesses to a mystic will; and two witnesses besides the master, surgeon, or captain, to wills made at sea or by soldiers in active service. 11 Three witnesses are required to all written wills by the statutes of Connecticut, Dis- trict of Columbia, Georgia, Maine, Massachusetts, New Hampshire, South Carolina, and Vermont. In all the other states and territories, two witnesses are required, and only two. 12 i. "CREDIBLE WITNESSES." 13 § 309. American Statutes. In a number of the states the statutes do not specify that the witnesses shall be com- petent; 14 but that is of small importance, for requiring witnesses implies that. In some, credible witnesses are required, as under the Statute of Frauds; 15 in others, •Cunningham v. Cunningham (1900), "Code (1900), Arts, 1575-1601. 80 Minn. 180, 83 N. W. 58, 81 Am. St « See the statutes cited ante, 5 241. Rep. 256, 51 L. R. A. 642, 5 Pro. R. Perea V. Barela (1890), 5 N. Me*. A. 440; Raymond r. Wagner (1901), 458, 23 Pae. 766. See also note 77 Am. 178 Mass. 315, 59 N. E. 811; Cook v. St. Rep. 459. Winchester (1890), 81 Mich. 581, 46 "See note 77 Am. St Rep. 459- N. W. 106, 8 L. R. A. 822, Mechem 45 ; 480. Sturdlvant v. Birchett (1853), 10 " The states merely requiring wit- Grat. (Va.) 67. nesses are: Alabama, Arkansas, Cali- Contra: Downie's Will (1877), 42 fornia, Connecticut, Florida, Idaho, Wis. 66, and see Carter v. Seaton Indian Territory, Montana, New Jer- (1901), 85 Law Times 76. sey, New York, North Dakota, Okla- 10 Graham v. Graham (1849), 10 homa, Rhode Island, Tennessee and Ired. L. (N. Car.) 219 ; Mandeville v. Utah. See statutes cited ante, § 241. Parker (1879), 31 N. J. Eq. 242, 252; "As follows: Arixona, Colorado, Omdorfl v. Hummer (1851), 12 B. Delaware, District of Columbia, Illinois, Mon. (Ky.) 619. Kentucky, Maine, Maryland, Mieaissip- § 310 WILLS. 196 competent witnesses; 16 in a few, witnesses not beneficially interested; 17 and in New Mexico, qualified to give evi- dence in court These variations in the form of expres- sion do not seem very material. Persons competent under one statute would probably be competent under another. 18 §310. Meaning of "Disinterested," "Credible," and ' ' Competent. " 19 A witness is ' ' disinterested ' ' unless the will gives bim a direct financial benefit. 20 He is "cred- ible" if he was competent to testify in court — not dis- qualified by infamy, idiocy, interest, extreme infancy, or the like. 21 The will is not void because the court or jury finds on the probate that the attesting witnesses were unworthy of belief even under oath. 22 Persons disquali- fied to be sworn as witnesses in the matter are not cred- ible within the meaning of the statutes. 23 Likewise, a witness is "competent" within the meaning of the stat- utes if he is qualified to be sworn, and not otherwise. 24 §311. At What Time. In several of the states it is provided that if the witnesses are competent when the will is executed, their subsequent incompetency shall not pi, New Hampshire, South Carolina, 22 Johnson v. Johnson (1900), 187 Texas, and Vermont. See statutes cited 111. 86, 58 N. B. 237 ; Fuller v. Fuller ante, §241. (1885), 83 Ky. 345; Kennedy v. Up- 16 As follows: Georgia, Hawaii, In- shaw (1886), 66 Tex. 442, 1 S. W. 308; diana, Iowa, Kansas, Michigan, Min- Brown v. Pridgen (1882), 56 Tex. 124; nesota, Missouri, Nebraska, Nevada, Hall v. Hall (1855), 18 Ga. 40; Amory Ohio, Oregon, Pennsylvania, Virginia, v. Fowles (1809), 5 Mass. 219, 229. Washington, West Virginia, Wisconsin, Conviction of a Crime. Going to and Wyoming. See statutes cited ante, credibility only, not to competency to § 241. testify it was no objection to the va- 17 As follows : Maine, North Caro- lidity of the will that one of the sub- lina, and Tennessee. See statutes cited scribing witnesses was a professional ante, § 241. gambler, under indictment for embez- 18 For extended review of the de- zlement, and awaiting sentence on a cisions as to competency of witnesses plea of guilty to forgery. Noble, Mat- to wills see note to Stevens v. Leonard ter of (1888), 124 111. 266, reported as (1900), 77 Am. St. Rep. 459-480. Robinson v. Savage in 15 N. E. 850. 10 See note 77 Am. St. Rep. 462. A pardoned convict is held to be * 20 Jones v. Larrabee (1860), 47 Me. competent witness to a will. Delhi v. 474, in which case it was objected that Rodgers (1895), 169 Pa. St. 316, 32 a witness was a brother of the testa- Atl. 424, 47 Am. St. Rep. 908. tor, and naturally interested in the will. 23 See cases cited in the next sec- 21 Carlton v. Carlton (1859), 40 N. tion. Hamp. 14; Warren v. Baxter (1859), 2 * Holt's Will (1893), 56 Minn. 33, 48 Me. 193; Marston's Appeal (1887), 57 N. W. 219, 45 Am. St. Rep. 434, 22 79 Me. 25, 8 Atl. 87 ; Estep v. Morris L. R. A. 481. (1873), 38 Md. 417. 197 FORMALITIES REQUIRED IN MAKING WILLS. §312 prevent probate of the will. 25 But that would be so in the absence of such a provision. The statute relates to the execution of wills, not to the proof of them; and it is enough that the witnesses are then competent. 26 On the other hand, if the witnesses were incompetent when they attested the will, it does not become valid by their be- coming competent by the time it is offered for probate. 27 § 312. Proof and Presumptions as to Competency. AH persons are presumed to be competent till the contrary is shown. 28 "When a witness is offered in court to be sworn, his competency is a preliminary question to be tried by the court; but whether the subscribing witnesses were competent when they attested is a question of fact for the jury under proper instructions, and to be ascertained by any competent evidence. 29 § 313. Interest. 30 A subscribing witness is not incom- petent by reason of interest unless the will gives a certain, immediate, direct, financial benefit to him or her, or to his or her husband or wife. 31 Incompetency of devisees and legatees under the will to act as subscribing wit- nesses has already been sufficiently discussed. 32 One who 26 Such provisions may be found in Ohio — Vrooman v. Powers (1890), other states; but at least exist in Ala- 47 Ohio St. 191, 24 N. E. 267, 8 L. bama, Georgia, Indiana, Kansas, Maine, It. A. 39. Massachusetts, Michigan, Minnesota, Pennsylvania — Camp v. Stark (1875), Nebraska, North Dakota, Utah, Ver- 81% Pa. St. 235. mont, Wisconsin, and Wyoming. See Texas — Nixon v. Armstrong (1873), statutes cited ante, § 241. 38 Tex. 297. 26 Gillis v. Gillis (1895), 96 Ga. 1, Vermont — Smith v. Jones (1895), 68 23 S. E. 107, 51 Am. St. Rep. 121 ; Ful- Vt. 132, 34 Atl. 424 ; Giddings v. Tur- ler v. Fuller (1885), 83 Ky. 345; John- geon (1886), 58 Vt. 106, 4 Atl. 711. son v. Johnson (1900), 187 111. 86, 58 2S Perine v. Grand Lodge (1892), N. E. 237. 48 Minn. 82, 50 N. W. 1022; Carlton « A Leading Case. Holdfast d. An- v. Carlton (1850), 40 N. Hamp. 14, and stey v. Dowsing (1746), 2 Strange see note 77 Am. St. Hep. 460. 1253, Abbott p. 302. This is a lead- 2» Carlton v. Carlton (1850), 40 N. ing case. Hamp. 14; Amory v. Fellows (1809), Illinois — Fisher v. Spence (1894), 5 Mass 219 229. 30 See note 77 Am. St. Rep. 462. 150 111. 253, 37 N. E. 314, 41 Am. St. Rep. 360; Johnson v. Johnson (1900), 187 111. 86, 58 N. E. 237. " See ante, §§205-210. Also Hitch- Indiana — Belledin v. Gooley (1901), cock v. Shaw (1893), 160 Mass. 140, 157 Ind. 49, 60 N. E. 706. ^ N - E - 671 '• Marston's Appeal (1887), Massachusetts — Hawes v. Humphrey 79 Me - 25 > 8 Atl - 87 - (1830), 9 Pick. (26 Mass.) 350, 20 Am. aa See ante, §§205-210. Dec. 481. §314 WILLS. 198 would receive more under the will revoked by the will he signed as a witness than under the last, or who would take more as heir at law, is not incompetent for interest. 33 § 314. Executors. 3 * It has been held that one appointed executor by a will is not a competent subscribing witness to it, on the ground that he is interested. 35 But it is clearly settled that this contingent interest is not sufficient to disqualify the witness, 36 and that the will is valid. The interest does not exist when he subscribes, it is said, and at least not till he accepts the trust. Further, it is said that the interest is not certain. §315. Probate Judges. No prudent probate judge would witness a will, lest it might come before him to be proved. 37 Yet certainly a will is not void because one of the witnesses was a probate judge. 38 §316. Infants. Persons over fourteen years old are "Hoppe's Will (1899), 102 Wis. 54, 78 N. W. 183 ; Smalley' v. Smalley (1880), 70 Me. 545, 35 Am. Hep. 353; Sparhawk v. Sparhawk (1865), 10 Al- len (92 Mass.) 155. s * See note 77 Am. St. Rep. 466. S5 Tucker v. Tucker (1844), 5 Ired. L. (27 N. Car.) 161. And see Taylor v. Taylor (1845), 1 Rich. L. (S. Car.) 531, and Noble v. Burnett (1857), 10 Rich. L. 505 ; in both of which the court was divided on this point. A will was held void because one of the witnesses was the wife of the man named in the will as .executor. Huie v. McConnell (1855), 2 Jones L. (47 N. Car.) 455. 86 England — Phipps v. Pitcher (1815), 6 Taunton 2t0, 1 E. C. L. 585, 2 Marsh. 20. California — Panaud v. Jones (1851), 1 Cal. 488. Florida — Meyer v. Fogg (1857), 7 Fla. 292, 68 Am. Dec. 441. Maine — Jones v. Larrabee (1860), 47 Me. 474. Maryland — Bstep v. Morris (1873), 38 Md. 417. Massachusetts — Wyman v. Symmes (1865), 10 Allen (92 Mass.) 153. Mississippi — Rucker v. Lambdin (1849), 12 Sm. & M. (20 Miss.) 230. New Hampshire — Stewart v. Harri- man (1875), 56 N. Hamp. 25, 22 Am. Rep. 408. Pennsylvania — Snyder v. Bull (1851), 17 Pa. St. 54; Jordan's Estate (1894), 161 Pa. St. 393, 29 Atl. 3. Vermont — Richardson v. Richardson (1862), 35 Vt. 238. Peculiar Cases. The executor's broth- er was a competent witness. Lord v. Lord (1876), 58 N. Hamp. 7, 42 Am. Rep. 565. The wife of one named as executor was one of the subscribing witnesses, but this did not make the will invalid. Lyon's Will (1897), 96 Wis. 339, 71 N. W. 362, 65 Am. St. Rep. 52; Piper V. Moulton (1881), 72 Me. 155. The husband of the executrix was one of the witnesses. The will valid. Lippencott v. Wikoff (1895), 54 N. J. Eq. 107, 33 Atl. 305. A Missouri statute avoided the ap- pointment of the executor by reason of his signing as a witness, and left the will valid. The court said he might be made administrator. Murphy v. Murphy (1857), 24 Mo. 526. 87 See Marston's Appeal (1887), 79 Me. 25, 8 Atl. 87. 88 Patten v. Tallman (1847), 2T Me. 17: Ford v. Ford (1795), 2 Root (Conn.) 232. 199 FORMALITIES REQUIRED IN MAKING WILLS. § 317 presumed to be competent; and persons proved to have been under fourteen when they witnessed the will are only presumed to be incompetent, 39 except in Arizona and Texas; where witnesses over fourteen are required by ex- press statute; 40 and in Louisiana where infants under six- teen and women of any age are never competent as wit- nesses to wills. 41 § 317. Confidential Advisers. 42 The person who signs the will for the testator, 42 * and the one who acts as his counsel and scrivener in drafting it, 43 are competent as subscribing witnesses. When the testator assents to his spiritual, medical, or legal adviser subscribing as a witness to his will, he thereby waives his privilege of secrecy and confidence as to that matter, and authorizes and expects such adviser to testify to it. 44 § 318. Husband and Wife. At common law, husbands and wives were incompetent to testify concerning each other, for three reasons : 1. They could not testify for each other, because of interest and theoretic unity, no one being permitted to testify in his own behalf. 2. They could not testify against each other, on the same grounds, be- cause no one could be required to give evidence against himself. 3. But the broadest and greatest objection was not confined to proceedings in which the other spouse was a party or interested. It was that the peace and un- bounded confidence between the spouses shall not be imperilled or disturbed by requiring or permitting either to expose the other in court or by suffering any doubt as to any such exposure being made at any future time. The first two objections have generally been removed by stat- »• Carlton v. Carlton (1859), 40 N. v. Jones (1851), 1 Cal. 488; Tevls v. Hamp. 14; Jones v. Tebbetts (1870), Pitcher (1858), 10 Cal. 466, 478. 57 Me. 572. " This matter is discussed at length *° See statutes cited ante, §241. in O'Brien v. Spalding (1897), 102 Ga. "Roth, Succession of (1879), 31 La. 490, 31 S. B. 100, 66 Am. St. Hep. An. 315. 202. There is an extended note on 42 See note 66 Am. St. Rep. 229. attorneys as witnesses, appended to 4a a See ante, § 264. this case in 66 Am. St. Rep. See also *» Schieffelin v. Schieffelin (1900), Kern v. Kern (1900), 154 Ind. 29, 55 127 Ala. 14, 36, 28 South. 687 ; Panaud N. E. 1004, 5 Pro. R. A. 337. § 318 WILLS. 200 utes making parties and persons interested competent to testify in their own favor, and compellable to give tes- timony against themselves in civil cases. But the last objection has not been much disturbed, and probably will not be. 45 Where parties and persons interested are permitted to testify, it is still held that a will witnessed by the husband is void unless the required number sub- scribed besides him; 46 and the same has been held of a will witnessed by the wife of the testator. 47 " Jones Bv. §§751-765. land Gen. Pub. Stat., Art. 93, §320. " Smith v. Jones (1895), 68 Vt. 132, Compare Schull v. Murray (1869), 32 34 Atl. 424. Md. 9. Separate Acknowledgment by "Pease v. Allis (1872), 110 Mass. Married Women. The will of a mar- 157, 14 Am. Rep. 591. ried woman is not void because not ex- In a contest as to the probate of ecuted and acknowledged apart from the will of the wife, the husband would her husband. Dickinson v. Dickinson not be permitted to testify to com- (1869), 61 Pa. St. 401; Hair v. Cald- munications made by her to him. well (1902), — Tenn. — , 70 S. W. Maynard v. Vinton (1886), 59 Mich. 610. Unless the statutes require sep- 139, 26 N. W. 401, 60 Am. Rep. 276. arate acknowledgment, such as Mary- CHAPTER X. EEVOCATION OF WILLS. § 319. Other Causes Defeating. § 320. Modes of Revocation Classified. 1. Revocation by Act of the Testator. § 321. Legal Formalities In Ab- sence of Statute. § 322. Section Six, Statute of Frauds, 29 Car. II (1677). § 323. American Statutes. A. Revocation by a Later Writ- ing. a. "No Devise in Writing." §324. Oral Wills How Re- voked. 6. "Of Lands, Tenements, and Hereditaments." § 325. American Statutes. c. "Shall be Revocable Other- wise'." 326. Statutory Methods Ex- clusive. "By Some Other Will or Cod- icil in Writing." Express and Implied — Partial and Total. Express — If Revoking Will Inoperative. Induced by Mistake. Prospective Revocation. Construction of Clause. If Consistent. Presumption. Date. Implied — By Making La- ter Wills. Implied — By Inconsistent Provisions. Implied — Lost — Pre- sumption — Proof. Implied — If Last Inope- rative. Witnesses to Revocation. "Other Writing Declaring the Same." §340. Defective Will is Not. § 341. American Statutes. 201 § §327. §328. §329. §330. §331. §332. §333. §334. §335. §336. §337. §338. §339. Revocation by a Destructive Act — "By Burning, Cancel- ling, Tearing, or Obliterat- ing." "By the Testator himself." 1. The Act of Destruc- tion. §342. American Statutes. §343. Intention without De- struction. §344. Destruction Prevented by Fraud. §345. Destruction of Dupli- cates. §346. Destruction of Other Wills and Codicils. §347. Unfinished Act — Change of Mind. §348. Unfinished Act — Inter- ference. §349. What is Sufficient De- structive Act. §350. Burning. §351. Tearing. §352. Cancelling. §353. Obliterating and Muti- lating. § 354. Destroying. 2. The Intention Con- cerning the Act. § 355. Act Without Intention to Revoke. § 356. Not Found, or Found Mutilated — Presump- tion. § 357. Overcoming the Pre- sumption of Revoca- tion. § 358. Partial Revocation by Destructive Act. § 359. Dependent and Relative Revocation. § 360. Declarations of Testa- tor to Prove Intent. §361. Revival of Prior Will — Without Statute. § 362. Revival Depending on Intention. § 363. Statutes as to Revival. 6. "In His Presence and by His Directions." §319 WILLS. 202 §364. Witnesses to Destruction — Presence of Testator. § 365. Ratification of Unau- thorized Destruction. 2. Revocation by Operation of Law. §366. {367. A. By § 368. §369. §370. 5 371. B. By §372. $373. §374. C. By §375. §376. Matters Producing. General Statement. Alteration of Estate. At Common Law — What Operated as Revocation. What Did not Work Revocation. - — The Doctrine Dis- credited. Under Modern Statutes. Marriage of the Woman. At Common Law. Under the Married Wom- en's Acts. Statutes on Revocation by Marriage. Marriage of the Man. At Common Law. Same — Provision for Widow and Issue. §377. §378. §379. §380. D. By §381. §382. §383. §384. §385. §386. §387. E. By §388. §390. §391. Whether Presumptive or Absolute. Under American Statutes of Descent. Statutes as to Marriage. Construction of the Stat- utes. Birth of a Child. Common Law. Statutes as to Revoca- tion by Birth. Extent of Revocation. Whose Wills are Affect- ed. What Children May Take. What is a Provision. Proof of Intention. Other Changes in Circum- stances. Forecast, Changes in Property and Beneficiaries Affecting Proportions. Changes in Affections. Divorce Does Not Seem to Revoke. §319. Other Causes Defeating. A well executed and valid will may be rendered inoperative in whole or in part by many causes other than revocation. A legatee or devisee may be unable to take, either generally, or un- der the circumstances, perhaps arising after the will is executed. 2 The devise or legacy may lapse by the death of the beneficiary before the testator dies; 3 or it may be anticipated, adeemed, or abated, in various ways. 4 The will may confer on anyone a power to divest any or all the estates devised and bequeathed, by conveying the property over to others or back to the heirs, or by simply declaring the will inoperative. 5 None of these is strictly a revocation, and the last mentioned is clearly only carry- ing out the will of the testator. 1 Extended Notes on Revocation of Wills will be found in 28 Am. St. Rep. (1893), 344-362; 37 L. R. A. (1897), 561-579 ; 2 American Lead. Case (Hare & Wal. (1847), 487-539; 7 L. R. A. 485. 2 See ante, §§192-213. 'See post, §§666-679. *See poet, §§709-756. 6 Dudley v. Weinhart (1892), 93 Ky. 401, 20 S. W. 308 ; Smith, Goods of (1869), L. R. 1 P. & D. 717, 38 L. J. P. 85, 17 W. R. 1110, 21 L. T. (n. s.) 340. See also ante §64. Power to destroy the will was held ineffectual. Stockwell v. Ritherdon (1848). 6 Notes of Cas. 409, 414, 12 Jur. 779. 203 REVOCATION OF WILLS. §320 §320. Modes of Revocation Classified. During 1 the life of the testator the will is said to be ambulatory; and may be altered, revoked, or superseded at any time. It is of no possible effect as a will while the maker lives. 6 The revocation may be effected in either of two general ways: 1, by the act of the testator; 2, by operation of, law. The revoking act of the testator may be: 1, a later writ- ing; or, 2, a destructive act. The later writing may be: 1, a will or codicil, by which further, different, or incon- sistent provisions are added to the preceding will, extend- ing, modifying, or revoking it in part, and otherwise affirming it or allowing it to stand; 2, a later willj by which the first is completely annulled, displaced, and su- perseded; or, 3, a revoking instrument, neither will nor codicil, not intended to have any testamentary effect, but merely to annul the will. The statutes do not all mention the same destructive acts; but they generally agree with the Statute of Frauds, in providing that the testator may revoke his will or codicil by burning, cancelling, tearing, or obliterating it. Some statutes say or otherwise de- . stroying it. Revocation is effected by operation of law only when the testator's circumstances have radically changed, such as by marriage and birth of children. 1. REVOCATION BY ACT OF TESTATOR. §321. Legal Formalities in Absence of Statute. There are no formal requirements as to revoking wills except such as the statutes impose. When the statutes, 32 & 34 Hen. VHI (1540-2), first permitted land to be de- vised, and required the devises to be in writing, it was claimed that the revocation must also be in writing; but the courts held parol revocations sufficient, as before, because the statute made no provisions as to revocation. 7 • See ante, §§ 73-76. As to contracts tor liveth." Epistle of Paul to the concerning wills see ante, §§ 51-57. Hebrews, «. 9, vv. 16, 17. "Where a testament is, there must * See many cases cited in 1 Roll's also of necessity be the death of the Abr. 614, also Cranvel v. Saunders testator. For a testament is of force (1619), Cro. Jac. 497; Brook v. Warde after men are dead: otherwise it is (1572), 3 Dyer 310b, Abbott p. 343. of no strength at all while the testa- § 322 WILLS. 204 The Statute of Frauds recognized many forms of revoca- tion that would not suffice for execution of devises; 8 and under American statutes requiring wills to be made in writing, signed by the testator, and subscribed by wit- nesses, but silent as to revocation, it has been held that parol revocations were sufficient. 9 Where the same for- mality is not required to revoke wills of personalty as of realty, wills disposing of both may be revoked as to the personalty by a later will only sufficiently executed to pass personalty. 10 Our discussion on this subject is, therefore, limited to an examination of the statutory provisions, to learn what they are and how they are interpreted. We will comment on the sixth section of the Statute of Frauds, phrase by phrase, and note as we pass wherein the statutes in any of the states differ from it. §322. Section Six, Statute of Frauds, 29 Oar. II (1677) . ' ' And moreover no devise in writing, of any lands, tenements, or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June, be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same, by the testator himself, or in his presence and by his direc- tions and consent, but all devises and bequests of lands and tenements shall remain and continue in force until the same shall be burned, cancelled, torn, or obliterated, by the testator or by his directions, in manner aforesaid, 8 See a discussion at length on this (1862), 2 Sw. & Tr. 442, 31 L. J. P. matter in Earl of Ilchester, ex parte (n. s.) 169. Compare: Limbery v. (1803), 7 Ves. 348, 371 et seq. Mason (1735), 2 Comyns 451; Brown 8 Clark v. Eborn (1813), 2 Murphey v. Thorndyke (1834), 15 Pick. (32 (6. N. Car.) 234; Card v. Grinman Mass.) 388. (1823), 5 Conn. 164. Contra: Greer An indorsement to that effect on the v. McCrackin (1824), Peck (7 Tenn.) will, in the hand of and signed by the 301, 14 Am. Deo. 755. testator but not witnessed would 10 Marston v. Marston (1845), 17 equally satisfy. Billington v. Jones N. Ham. 503, 43 Am. Dec. 611; Wins- (1901), 108 Tenn. 234, 66 S. W. 1127. low, Aplt (1817), 14 Mass. 422; Glass- 56 L. R. A. 654. Or even if in the cock v. Hunt (1798), 1 Call (Va.) 479; hand of another and not signed. Greer McLowsky v. Heid (1857), 4 Brad. v. McCrackin (1824), Peck (7 Tenn.), Sur. (N. Y.) 334; Goods of Ltfese 301, 14 Am. Dec. 755. 205 EEVOCATION OF WILLS. §323 or until 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 contrary notwith- standing.' ' § 323. American Statutes. The statutes of the several states and territories of the United States as to revoca- tion of wills by act of the testator are cited below, and will not be cited hereafter in the discussion of them. 11 A. Revocation by a Later Wbiting. a. "NO DEVISE IN WRITING." §324. Oral Wills, How Revoked. It will be observed that the sixth section of the Statute of Frauds applies only to the revocation of written wills; and I do not find 11 Alabama— Civil Code (1896), § 4265. Arizona — Rev. Stat (1897), § 4216. Arkansas — Dig. of Stat. (1894), §§ 7394, 7392. California — Civil Code (1901), §§ 1292-1296, 1305. Colorado — An. Stat. (1891), § 4655. Connecticut — Gen. Stat. (1888), § 542. Delaware — Laws (1893), c. 84, § 10. District of Columbia — Statutes (1894), u. 70, § 4. Florida — Rev. Stat. (1892), § 1796. Georgia — Code (1895), §§3256, 3340- 3345. Idaho — Civil Code (1902), §§ 2509- 2512, 2520. Illinois — Hurd Rev. Stat. (1899), e. 148, § 17. Indiana — Burns's Rev. Stat. (1901), § 2729. Indian Territory — Statutes (1899), 5 3566, 3564. Iowa— Code (1897), § 3276. Kansas — Gen. Stat. (1901), § 7975. Kentucky— Statutes (1899), § 4833. Louisiana — Civil Code (1900), §§ 1690-1694. Maine — Rev. Stat. (1883), c. 74, § 3. Maryland — Pub. Gen. Laws (1888), Art. 93, § 311. Massachusetts — Rev. Laws (1902), o. 135, § 8. Michigan — Comp. Laws (1897), § 9270. Minnesota — Gen. Stat. (1894), § 4430. Mississippi — Code (1892), § 4489. Missouri — Rev. Stat (1899), § 4605. Montana — Civil Code (1895), §§ 1738-1741, 1750. Nebraska — Comp. Stat. (1901), § 2646. Nevada — Comp. Laws (1900), § 3078. New Hampshire — Pub. Stat. (1901), p. 617, § 14. New Jersey — Gen. Stat. (1709-1895), p. 3757, § 2. New Mexico — Comp. Laws (1897), § 1953. New York — 2 Rev. Stat. (Banks, 1901), 64, § 42. Ohio — Giaque's Rev. Stat (1895), § 5953. Oklahoma — Statutes (1893), §§ 6184- 6188, 6196. Oregon — Hill's An. Laws (1892), § 780. Pennsylvania — B. & P. Dig. of Stat. (1894), p. 2103, § 17. Rhode Island — Gen. Laws (1896), e. 203, § 17. South Carolina — Rev. Stat. (1893), § 1993. South Dakota — Statutes (1901), §| 4513-4517, 4525. Tennessee — Code (1896), § 3900. § 325 WILLS. 206 any provision in any of the American statutes* nor any decisions, as to the revocation of oral wills; 12 which may be accounted for by the fact that oral wills are seldom made, and are valid only when made in the last sickness, when there is little time for change of desire. Yet the absence of statutory provision leaves it very clear on principle that oral wills may be revoked by any expres- sion of the testator indicating his desire to die intestate or to have his effects differently disposed of; and such is the rule laid down by Swinburne. 13 b. "OF LANDS, TENEMENTS AND HEREDITAMENTS." § 325. American Statutes. In Tennessee the only pro- vision as to revocation by the act of the testator is that no written will shall be revoked by a nuncupative will unless it is reduced to writing and read over to the tes- tator and approved by him, and these facts proved by two witnesses; 1 * but the courts of the state h©ld that a writ- ten will cannot be revoked by parol, nor by a later void written will. 15 The statutes of all the other states and territories agree with the Statute of Frauds in providing that no devise of lands shall be revoked otherwise than by a later will or writing executed with the same formal- ities as the will revoked, or by being in some manner mu- tilated or destroyed by the testator or by his direction; and written wills of personal property are included under Texas — Sayles's Civ. Stat. (1900), " Dying declarations not reduced to Art. 5337. writing till after the death of the tes- TJtah — Rev. Stat. (1898), §§ 2738; tator do not satisfy the statute. Rod- 2749-2752, 2759. gers v. Rodgers (1871), 6 Heis. (53 Vermont— Statutes (1894), § 2354. Tenn.) 489, 495. Virginia— Code (1887), § 2518. " Allen v. Jeter (1881), 6 Lea (74 West Virginia — Code (1899), c. 77, Tenn.) 672. 5 7. A Holographic Will may revoke or Washington — Ballinger's Codes & be revoked by any written will. Rea- Stat. (1897), § 4597. gan v. Stanley (1883), 11 Lea (79 Wisconsin — Statutes (1898), § 2290. Tenn.) 316, 324. Wyoming — Rev. Stat. (1899), § 4569. "The annihilation of an instrument la The provisions to the effect that (in this case a will) is to be effected no will shall be revoked except by with as much formality as was neces- burnlng, etc., clearly apply only to sarily employed in its construction." written wills. Greer v. McOackin (1824), Peck (7 13 Swinburne on Wills, part 7, § 15, Tenn.) 301, 11 Am. Dec. 755. .'531. 207 EEVOCATION OF WILLS. §326 the same provisions and cannot be in any other manner revoked, 16 except in the following named states. The twenty-second section of the Statute of Frauds is para- phrased in the statutes of the District of Columbia, Flor- ida, Maryland, and Pennsylvania; providing that no written will of personal property shall be revoked or al- tered by word of mouth only, unless the same be com- mitted to writing during the life of the testator, read to and allowed by him, and proved by two witnesses; in the District of Columbia, by three. 17 C. " SHALL BE REVOCABLE OTHERWISE." § 326. Statutory Methods Exclusive. The testator can revoke his written will only by complying with all the requirements of the statute as to some one of the methods of revocation approved therein. Oral declarations of revocation are wholly ineffectual under all circum- stances. 18 A nuncupative will cannot be given effect as a disposition of property covered by a previous written will, for that would be allowing the revocation of a writ- ten will by parol. 19 If the testator's attempt at destruc- tion is frustrated by the fraud of a beneficiary, the will is not revoked, whatever may be the effect on the rights of the person practicing the fraud. 20 A writing clearly indicating an intention to revoke will not suffice unless 16 See statutes cited ante, § 323. Connecticut — Goodsell's Appeal "District of Columbia — Comp. Stat- (1887), 65 Conn. 171, 10 Atl. 557. utcs (1894), c. 70, ; 3. Iowa — Perjue v. Perjue (1857), 4 Florida — Rev. Stat. (1892), § 1798. Iowa, 520a. Maryland — Pub. Gen. Laws (1888), Maryland-^ Wittman V. Goodhand Art. 93, § 312. (1866), 26 Md. 95. Pennsylvania — B. & P. Dig. Stat. Mississippi — Jones v. Moseley (1895), p. 2104, § 18. (1866), 40 Miss. 261, 90 Am. Dec 327. If a will intended to revoke the whole New Jersey — Boylati v. Meeker Of a former will disposing of both realty (I860), 28 N. J. L. (4 Dutch) 274, 285. and personalty Is only sufficiently ex- New York — Shaw v. Shaw (1882), 1 ecuted to pass personalty it is of effect Dem. Sur. (N. Y.) 21. as to the personalty. See ante, § 321. Texas — Kennedy v. Upshaw (1885), What is realty has been sufficiently 64 Tex. 411, 418. considered before. See ante, § 242. »• McCune v. House* (1837), 8 Ohio is Alabama — Slaughter v. Stephens 144, Abbott p. 345, 31 Am. Dec. 438 ; (1887), 81 Ala. 418, 2 South. 145. Brook v. Chappell (1874), 34 Wis. 405. 20 See post, § 344. § 327 WILLS. 208 the requirements of the statute were obeyed in making it. 21 In short, whatever method of revocation the testa- tor adopts, he will fail unless he satisfies all the require- ments of the statute as to that method of revocation. d. BY SOME OTHEK WILL OR CODICIL IN WRITING." 22 § 327. Express and Implied— Partial and Total. The revocation of one will by another may be express or im- plied, partial or total. It is express when the later will declares the former, or all former wills, revoked. It is implied when, and in so far only, as it merely makes dis- positions inconsistent with the provisions of the former will or wills. The later will may be an earlier revoked will re-executed, and whatever would have sufficed as an original execution of it makes it a later will so as to re- voke intermediate ones. 23 §328. Express— If Revoking Will Inoperative. An express revocation clause in a duly executed will operates to revoke the will or wills sio declared revoked, though no other part of the revoking will can have effect. It may be that the testator would not have revoked the former will except to make way for the new one. But speculations as to his undisclosed reasons and intentions cannot be al- lowed to defeat his unequivocal declaration. Under this rule the revoked wills have been denied probate, when the other provisions of the revoking will were not ascer- tainable, it having been lost, 24 or destroyed by the testa- tor 25 while insane; 26 and when all or the greater part of 21 Nelson v. Public Adm'r (1852), 2 " Harvard v. Davis (1810), 2 Binn, Bradf. Sur. (N. Y.) 210, Chaplin 310, (Pa.) 406. Abbott p. 350. "Wallis v. Wallis (1874), 114 Mass. Receipt for Equivalent. A devisee 510; Moore v. Griswold (1863), 1 Redf. may recover the land from the resid- Sur. (N. Y.) 388, 15 Abb. Pr. 299. uary devisee" though plaintiff signed and aB Brown v. Brown (1858), 8 EI. & delivered to the testator a writing ac- Bl. (92 E. C. L.) 876, 27 L. J. Q. B. knowledging receipt of a sum of money 173, 4 Jur. (n. s.) 163; but see post, in lieu and release of the devise. § 365. Burnham v. Comfort (1888), 108 N. Y. a « Cunningham, In re (1888), 38 535, 15 N. E. 710, 2 Am. St. Rep. 462. Minn. 169, 36 N. W. 269, 8 Am. St. » 2 See notes 28 Am. St. Rep. 344, 37 Rep. 650; Colvin v. Warford (1863), L. R. A. 561. 20 Md. 357, 391. 209 REVOCATION OF WILLS. § 329 the devises and bequests were void, for uncertainty as to the property given, or as to the devisees or legatees, 27 or for their inability to take, 28 or for the illegality of the gift, 28a for example, because the statute made void all gifts to charities by wills made within a month of the death of the testator, 29 though the revoked will may have contained a similar gift to the same charity. 30 It is enough that the last will was well executed, though in- operative because of something outside. 31 §329. Induced by Mistake. When the testator declares in the later will that he revokes the former because of a certain state of facts, it has been held that the revocation is inoperative if the facts were not as the testator sup- posed. 32 It was so held when the testator revoked a de- vise in tail because the devisee had died without issue, the fact being that he left issue not known to the testa- tor; 33 and when a legacy was revoked because all the legatees were dead, which was not true. 34 But the revo- cation would operate if it appears that the testator only alleged the belief as a reason for revoking, intending to revoke absolutely, whether the belief were true or false. It was so held when the testator said he revoked because he knew not whether the beneficiaries were dead or alive; 35 or "because of the state of the country," fearing that the rebels would confiscate the gifts to northern "French's Case (1587), 1 Roll Abr. sl Quinn v. Butler (1868), L. R. 6 614; Dudley v. Gates (1900), 124 Eq. 225; Burns v. Travis (1888), 117 Mich. 440, 83 N. W. 97, 5 Pro. R. A. Ind. 44, 18 N. B. 45 ; Barksdale v. 697; Carpenter v. Miller (1869), 3 W. Hopkins (1857), 23 Ga. 332; Smith Va. 174, 100 Am. Dec. 744. v. McChesney (1862), 2 McCart. (15 28 Roper v. Radcliffe (1714), 10 N. J. Eq.) 359. Mod. 230; Tupper v. Tupper (1855), Contra: Security Co. v. Snow 1 Kay & J. 665; Hairston v. Hairston (1898), 70 Conn. 288, 39 Atl. 153, 3 (1855), 30 Miss. 276, containing an Pro. R. A. 114, 66 Am. St. Rep. 107. extended review of the arguments and a2 See" post § 359, treating of de- decisions, struction induced by mistake. 2s a Scott's Will (1903), — Minn. 3S Doe d. Evans v. Evans (1839), j 93 n. W. 109, direction to executor 10 Ad. & El. 228, 37 E. C. L. 140. to destroy. See also Mordecai v. Boylan (1863), 29 Price v. Maxwell (1857), 28 Pa. 6 Jones Eq. (59 N. Car.) 365. st 23. " Campbell v. French (1797), 3 Ves. *°Canfield v. Crandall (1885), 4 Jr. 321. Dem. Sur. (N. Y.) ill; Lutheran Con- 8B Attorney General v. Ward (1797), gregation App. (1886), 113 Pa. St. 32, 3 Ves. Jr. 327. 5 Atl. 752. But see post, § 360. § 330 WILLS. 210 friends. 38 If the testator must have known the truth of the facts alleged by him, it does not matter whether they were true or not; the revocation is absolute. It was so held when the revoking instrument declared that the revocation was because the property had been sold; 37 or because the testator had made a gift to the beneficiary equivalent to the devise or bequest revoked. 38 Parol evi- dence is not competent to prove that a revocation uncon- ditional on its face was induced by a false assumption of fact or law. 39 § 330. Prospective Revocation. No declaration of fixed determination to revoke at some future time amounts to a revocation; and it matters not how formally it is exe- cuted. There must be present action, as distinguished from intention to act. 40 But the form of expression is not material, if it shows a present revocation. "If I should die before another will isi made, I desire that the foregoing be considered as revoked," was held sufficient. 41 The revocation may also be made conditional upon a fu- ture event; as when one who had made two wills, exe- cuted another instrument in which he provided that if he should live three months one should be his will, if he died before that tune, the other. 42 *« Skipwith v. Cabell (1870), 19 lng the proposed codicil, and the first Gratt. (60 Va.) 758, 785. will was held not to be revoked. Thomas "Giddings v., Giddings (1894), 65 V. Evans (1802), 2 East 487. See, Conn. 149, 32 Atl. 334, 48 Am. St. also, Rite's Appeal (1885), 110 Fa. St. Rep. 192. 232, 1 Atl. 226. » 8 Mendenhall's Appeal (1889), 124 A letter by the testator to his at- Pa. St. 387, 16 Atl. 881, 10 Am. St. torney directing him to destroy the will Rep. 590. was no revocation. Tynan v. Paschal "Durham v. Averill (1877), 45 (1863), 27 Tex. 286. Contra: Wal- Conn.' 61, 29 Am. Rep. 642; Skipwith cott v. Ochterlong (1837), 7 Curteis v. Cabell (1870), 19 Gratt. (60 Va.) 580, 6 Eng. Ecc. 398; Durance, Goods 758, 785. of (1872), L. R. 2 P. & D. 406. 40 Cranvel v. Sanders (1619), Cro. A will was not revoked by the in- Jac. 497. dorsement : "This will is intended to Illustrations. A testator made a be altered and will be — time is given." second will disposing of property ac- Ray v. Walton (1819), 2 A. K. Marsh, quired after his first will was made, (Kjr.) 71, 74. but not of property included in lega- " Brown v. Thorndike (1834), 15 cles that had lapsed by the death of Pick. (32 Mass.) 388, 408. Compare his mother. In the last will he said: Fraser, Goods of (1869), L. R. 2 P. "As to the rest of my real and per- & D. 40. sonal estate, I intend to dispose of it ** Bradish v. McClellan (1882), 100 by a codicil hereafter to be made to Pa. St. 607. See also ante, { 64. this my will." He died without mak- 211 EBVOCATION OF WILLS. § 331 § 331. Construction of Clause. A codicil annexed, ' ' as codicil to the foregoing will," saying, "I hereby revoke all wills by me heretofore made," was rightly held not to apply to or revoke the annexed will; 43 and a revocation of a particular will by description, does not revoke another independent disposition, though described as a codicil to the revoked will. 44 But a revocation of "all former wills" revokes all codicils, for a codicil is a will. 45 Parol evidence is not competent to show that the testator in- tended thereby to revoke or not to revoke a particular will. 46 §332. If Consistent. It is not material whether the later will is or is not consistent with the one which it expressly revokes. The first will is thereby wholly re- voked. 47 §333. Presumption. "When the later will has been lost or destroyed, there is no presumption that it con- tained an express revoking clause. It must be proved. 48 § 334. Date. When several wills wholly inconsistent, or containing express revocation clauses are offered for probate, parol evidence is competent to show which was "Gelbke v. Gelbke (1889), 88 Ala. 41 L. J. P. 57, 20 W. R. 590, 26 L. T. 427, 6 South. 834. (n. s.) 527. 44 Farrer v. St. Catharine's College Testamentary Powers. A general (1873), L. R. 16 Eq. Cas. 19, 21 W. clause of revocation in a will dealing R. 643, 28 Li. T. (n. s.) 800. only with the testator's own property 16 Smith v. McChesney (1862), 2 Mc- has been held not to revoke a previous Cart. (15 N. J. Eq.) 359; Coffin v. testamentary exercise of a power. Mer- Otis (1846), 11 Mete. (52 Mass.) 157. ritt, Goods of (1858), 1 Sw. & Tr. 112, Foreign Wills. There being no con- 4 Jur. (n. s.) 1192; Meredith, Goods test, wills disposing of property in one of (1860), 29 L. J. P. 155; Joys, country have been allowed probate, Goods of (1861), 4 Sw. & Tr. 214, 30 though a later will had been executed L. J. P. 169. Not so if it deals with in another country, disposing of prop- property over which the power extend- erty there, and expressly revoking all ed, and refers to the power. Eustace, former wills. Bolton, Goods of (1887), Goods of (1874), L. R. 3 P. & D. 183, L. R. 12 P. 202, 57 L. J. P. 12, 36 W. 43 L. J. P. 46, 30 L. T. (n. s.) 909, R. 287; Smart, Goods of (1884), L. 22 W. R. 832. R. 9 P. 64, 53 L. J. P. 57, 32 W. R. " Cheever v. North (1895), 106 724, 48 J. P. 456. But see Coffin v. Mich. 390, 64 N. W. 455, 37 L. R. A. Otis, above. 561, 58 Am. St. Rep. 499 ; Nelson v. « Smith v. McChesney (1862), 2 Mc- McGiftert (1848), 3 Barb. Ch. (N. Y.) Cart (15 N. J. Eq.) 359. 158, 49 Am. Dec. 170 ; Lane v. Hill "Smith v. McChesney (1862), 2 Mc- (1895), 68 N. Hamp. 275, 44 Atl. 393, Cart. (15 N. J. Eq.) 358; Cottrell v. 73 Am. St. Rep. 591. Cottrell (1872), L. ft. 2 P. & D. 397, § 335 WILLS. 212 in fact last executed, whether they are dated or not. 49 But if of the same date, or not dated, and there is nothing to show which was last, all fail for uncertainty. 50 §335. Implied— By Making Later Will. Swinburne says, "No man can die with two testaments; and there- fore the last and newest is of force. So that if there were a thousand testaments, the last of all is the best of all, and maketh void the former." 51 While all this is true, it is clear that the making of a second or any number of subsequent wills in no way affects the first, if all can stand together, and there be no express clause of revoca- tion. A man may make and execute his will in several parts, at different times; and though he may begin each part, "This my last will," not otherwise indicating that the preceding are revoked, the court will admit them all to probate, read them as one instrument, and treat all taken together as constituting the last will. 52 § 336. Implied — By Inconsistent Provisions. But no clause <3f revocation is necessary. 53 The first will is re- voked in so far as the later will or codicil disposes of the same property, in the same way, 54 or in a different way, 55 or purports to dispose of the whole estate of the'testator, 56 or if it is clear from the general tenor of the last instru- 48 See ante, §262. Bs Clark v. Ransom (1875), 50 Cal. « Phipps v. Anglesey (1751), 7 595, 602. Brown P. C. 443. B4 McAra v. McCay (1889), L. R. 23 Duplicate. The parts of a will exe- Ir - 138 65 Smith v. MoChesney (1862), 2 Mc- cuted in duplicate and containing i revocation clause do not revoke each <** (15 N. J .Bo > 359 ; Hallybur- other. Odenwaelder v. Schorr (1880), *° n v. Carson (1882). 86 N. Car. 290; _ „ . ._„ Hodgkmson, Goods of (1893), L. R. 8 Mo. App. 458. lg p 339> 62 L j p 69 L T « Swinburne Wills, part 7, § 14, 1, 540; Den d SnowniU v . Snownill P- * 523 - (1852), 3 Zeb. (23 N. J. L.) 447. BS Gordon v. Whitlock (1896), 92 Va. Be Coffin v. Otis (1846), 11 Mete. (62 723, 24 S. B. 342; Lemage v. Good- Mass.) 156; Henfrey v. Henfrey ban (1865), L. R. 1 P. & D. 57, 12 (1842), 4 Moore P. C. 29, 6 Jur. 355; Jur. (n. s.) 32, 35 L. J. P. 28, 13 L. Tumour, Goods of (1887), 56 L. T. T. (n. s.) 508, Abbott p. 351; Petchell, 671, 50 J. P. 344. Goods of (1874), L. R. 3 P. & D. 153, Though on its face it purports to be 43 L. J. P. 22, 22 W. R. 353, 30 L. T. only a codicil. Newcomb v. Webster (n. s.). 74; Leslie v. Leslie- (1872), 6 (1889), 113 N. Y. 191, 21 N. B. 77, Ir. R. E. 133 Pa. St. 245, 19 Atl. 482, Brevard (S. Car.) 279, 288, 3 Am. 19 Am - St - R *>- 637 • B1 S elow v " Gil " lott, above; Brown'* Will (1840), 1 B. Deo. 713. "Eschback v. Collins (1883), 61 Mon. (40 Ky.) 56; Leach, Goods of (1890), 63 L. T. 111. Md. 478, 48 Am. Rep. 123, Mechem 66 An ^ gheetg haylng been Bigned ou Compare: Simrell's Estate (1893), 154 executi(m only tm coula . be found . Pa. St. 604, 26 Atl. 599. he]a not entitled to pr0Da t e . Gullan, "Miles's Appeal (1896), 68 Conn. G 00 ds of (1858), 1 Sw. & Tr. 23, 27 237, 36 Atl. 39, 2 Pro. R. A. 219, 36 L . J. p. 15, 6 W. R. 307, 4 Jur. (n. s.) L. R. A. 176. 196. Contra: Bigelow v. Gillott (1877), "This point wae considered at 123 Mass. 102, 25 Am. Rep. 32. length by the House" of Lords in Swin- §359 WILLS. 228 § 359. Dependent and Relative Revocation. 45 It lias long been an established rule that if the act is induced by a belief which turns out to be false there is no revoca- tion. 46 It was on this rule that the courts held that a writing executed as a will, but not witnessed so as to operate as such, could not be given effect as an "other writing." 47 The same rule applies when the testator de- stroys his will because he supposes it to be void, 48 or superseded by a later deed, 49 or that a later will (which did not dispose of all the property 50 or turned out to be void 51 ) rendered it inoperative, or that the destruction of it would have the effect to revive a prior will revoked by it; 52 or if he cancels a clause to interline an amendment, which fails of effect for want of due execution; 53 or if he tears out one sheet and inserts another, without re-exe- cution. 54 The revocation has also been held inoperative when he destroyed the will because he intended then and ton v. Bailey (1S7S), L. R. 4 App. Cas. 70, 48 L. J. Ex. 57, 39 L. T. 581; 27 W. K. 293, 33 Moak 48. See also: Larkins v. Larkins (1802), 3 B. & P. 16, 109; Short v. Smith (1803), 4 Bast 418 ; Mence v. Mence (1811), 18 Ves. 348. 46 See note 42 Am. Law. Reg. (n. s.) 18. « See also ante § 329. "See ante 1 § 340. 48 Thornton, Goods of (1889), L. R. 14 P. 82, 58 L. J. P. 82, 61 L. T. 200, 37 W. R. 624, 53 J. P. 407, Chaplin 328; Giles v. Warren (1872), L. R. 2 P. & D. 401, 20 W. R. 827, 41 L. J. P. 59, 26 L. T. (n. s.) 780, Abbott p. 336, Chaplin 348. 18 James, Goods of (1869), 19 L. T. (n. s.) 610. Or that the legatees would take under a marriage settlement. Stamford v. White (1901), P. 46, 70 L. J. P. 9, 84 L. T. 269. 50 Beardsley v. Lacey (1897), 78 L. T. 25. 51 Onions v. Tyrer (1716), 2 Vern. 742, 1 P. Wms. 343; Pinch's Pr. Ch. 459; Clarkson v. Clarkson (1862), 2 Sw. & Tr. 497, 31 L. J. P. 143, 10 W. R. 781, 6 L. T. (n. s.) 506 ; Dancer v. Crabb (1873), L. R. 3 P. & D. 98, 42 L. J. P. 53; Semmes v. Semmes (1826), 7 H. & J. (Md.) 388, Abbott p. 368, Chaplin 353; Wilbourn v. Shell (1881), 59 Miss. 205, 42 Am. Rep. 363 ; Dower V. Seeds (1886), 28 W. Va. 113. But see McCarn v. Rundall (1900), 111 Iowa 406, 82 N. W. 924, 5 Pro. R. A. 624. So if he erases a clause to pass the same property by another clause. Prin- gle v. McPherson (1809), 2 Brevard (S. Car.) 279, 289, 3 Am. Dec. 713. 62 Powell v. Powell (1866), L. R. 1 P. & D. 209, 35 L. J. P. 100, 14 L. T. (n. s.) 800, Abbott p. 370; Cossey v. Cossey (1900), 69 L. J. P. 17, 82 L. T. 203, 64 J. P. 89. BS Eschback v. Collins (1883), 61 Md. 478, 48 Am. Rep. 123, Mechem 66 ; Gardiner v. Gardiner (1889), 65 N. Hamp. 230, 19 Atl. 651, 8 L. R. A. 383; Thomas v. Thomas (1899), 76 Minn. 237, 79 N. W. 104, 77 Am. St. Rep. 639; Penniman's Will (1873), 20 Minn. 245, 18 Am. Rep. 368 ; Wolf v. Bollinger (1872), 62 111. 368; Bethell v. Moore (1837), 2 D. & B. (20 N. Car.) 311; Jackson v. Holloway (1811), 7 Johns. (N. Y.) 394; Short v. Smith (1803), 4 East 418; Locke v. James (1843), 11 M. & W. 901. "Varnon v. Varnon (1896), 67 Mo. App. 534. 229 REVOCATION OF WILLS. § 360 there to make a new one, which he failed to complete; 85 hut an intention to make a new will at some future time does not make the destruction conditional on the execu- tion of such future will. 58 § 360. Declarations of Testator to Prove Intent. Since the statute does not permit wills to be revoked in any other than the specified ways, it does not matter what the testator may have said or supposed as to whether the will was revoked by some act which was not in law suffi- cient to work a revocation. 57 But if the act was in itself sufficient, what has been said in the preceding pages indicates how equivocal it may still be. It is everywhere admitted that what the testator said at the time of doing the act is competent as part of the res gestae, to give color to it and show what his purpose was. There are also several courts that have held that declarations of the testator long after the act was done, stating why he did it, are competent to show his intention. 58 But on the other hand it is declared by high authority that these declarations must be confined to those made at the time of the act, so as to be part of the res gestae. 59 § 361. Revival of Prior Will— Without Statute. 60 If a prior will is destroyed or cancelled on the execution of BB The new draft being very differ- N. W. 734, 50 Am. Rep. 355 ; Gay v. ent from the old, the destruction was Gay (1882), 60 Iowa 415, 46 Am. Rep. given effect as an absolute revocation, 78, 14 N. W. 238 ; Hargroves v. Redd though the new will was never prop- (1871), 43 Ga. 142. erly executed. Banks v. Banks (1877), Bs Pickens v. Davis (1883), 134 65 Mo. 432 ; Johnson v. Brailsford Mass. 252, 45 Am. Rep. 322, Chaplin (1820), 2 Nott & McC. (S. Car.) 272, 370; Law v. Law (1887), 83 Ala. 432, 10 Am. Dec. 601. 3 South. 752 ; Patterson v. Hickey 66 Semmes v. Semmes (1826), 7 H. (1861), 32 Ga. 156; Harring v. Allen & J. (Md.) 388, Chaplin 353, Abbott (1872), 25 Mich. 505. p. 368; Olmstead, Estate of (1898), 69 Valentine's Will (1896), 93 Wis. 122 Cal. 224, 54 Pac. 745 ; Townshend 45, 53, 67 N. W. 12 ; Randall v. Beatty v. Howard (1894), 86 Me. 285, 29 Atl. (1879), 31 N. J. Eq. 643; Throck- 1077; Touse v. Forman (1869), 5 Bush morton v. Holt (1900), 180 TJ. S. 552, (68 Ky.) 337; Muh's Succession 584, 21 S. Ct. 474; Glass Estate' (1883), 35 La. An. 394, 48 Am. Rep. (1900), 14 Col. App. 377, 60 Pac. 186. 242. <, ° See notes 37 L. R. A. 575 ; 76 Am. "Hoitt V. Hoitt (1886), 63 N. St. Rep. 249-262 ; 28 Am. St. Rep. 354 ; Hamp. 475, 3 Atl. 604, 56 Am. Rep. 45 Am. Rep. 327-344 ; 76 Am. Dec. 652- 530, Mechem 71 ; Goodsell's Appeal 656 ; 6 Pro. R. A. 6 ; 39 Am. Law, Reg. (1887), 55 Conn. 171, 10 Atl. 557; 505. Ladd's Will (1884), 60 Wis. 187, 18 § 361 WILLS. 230 a new one there can be no question. Under no circum- stances could the subsequent revocation of the second then revive the first. 61 But if the later will is revoked, and the earlier one is preserved and found unscarred after the death of the testator, the courts do not agree as to whether it can be allowed, in the absence of any statute governing the point. A distinction has frequently been made between revocation by a later will containing an express revocation clause, and an implied revocation by a later will merely inconsistent with the former. It is said that the revoking clause of a will is not ambulatory during the testator's life, like the other provisions of the will, that it is something more than a declaration of in- tention, that it is a completed act operating immediately as a complete revocation, so that the subsequent revoca- tion of the will containing it does not revive the former will, 62 though the testator may have destroyed the last and refiled the old will to restore the old and believing he had done so. 63 On the other hand, several of these courts hold that if the later will revoked the former merely by being inconsistent with it, it only indicates an intention to revoke, inoperative till death, and revoked before it operated. 64 The fallacy of this logic is obvious. "The case is this: he had a scheme, and abandoned it for another, and thus abandoned the second. All, so far, is clear and satisfactory. But can you go further and say that when he abandoned the last he returned 61 Burtenshaw T. Gilbert ( 1774) , 1 operative till death and destroyed be- Cowper 49, LofEt 466 ; Barker v. Bell lore it operated. (1871), 46 Ala. 216, Chaplin 377. 6S Noon's Will (1902), 115 Wis. 299, 62 James v. Marvin (1821), 3 Conn. 91 N. W. 670. See also Kern v. Kern 576; Scott v. Fink (1881), 45 Mich. (1900), 154 Ind. 29, 55 N. E. 1004, 241, 7 N. W. 799 ; Stevens v. Hope 5 Pro. R. A. 337 ; Bohanon v. Walcot (1883), 52 Mich. 65, 17 N. W. 698; (1836), 1 How. (2 Miss.) 336, 29 Am. Hawes v. Nicholas (1889), 72 Tex. Dec. 631. 481, 10 S. W. 558, 2 L. R. A. 863. •* Goodright d. Glazier Y. Glazier Contra: It has been intimated that (1774), 4 Burr. 2512; Harwood v. the mere revocation of a later will Goodright (1774), 1 Cowper 87, 91; with express revoking clause revived Peck's Appeal (1883), 50 Conn. 562, the former. Marsh v. Marsh (1855), 3 47 Am. Rep. 685; Cheever v. North Jones L. (48 N. Car.) 77, 64 Am. Dec. (1895), 106 Mich. 390, 64 N. W. 455, 598. So held in Stetson v. Stetson 58 Am. St. Rep. 499, 37 L. R. A. 561. (1903), 200 111. 601, 62 N. B. 262, 61 See also Taylor v. Taylor (1820), 2 L. R. A. 258, the revocation being in- Nott & McC. (S. Car.) 482. 231 EEVOCATION OF WILLS. §362 to the first? If these two schemes comprehended all the possible dispositions of his property, then the conclusion would be a logical one." 65 § 362. Revival Depending on Intention. It is a ques- tion whether it is not as dangerous to rely on mere oral words and acts without writing, to establish an intent to revive a revoked will, as it would be to allow a similar oral will, or an oral approval of an unexecuted draft. ^Yet several courts have held that whether the old will shall be allowed or not shall depend on the intention of the testator in revoking the last will, 66 though the last may have contained an express revocation clause, 67 and that this intention may be sufficiently established by cir- cumstances alone, 68 or by the declarations of the testator at the time of or after the revocation, 69 or by the testi- mony of one witness. 70 § 363. Statutes as to Revival. In a few etates it has m Per curiam in Harwell v. Lively (1860), 30 Ga. 315, 76 Am. Dec. 649, s. c. 29 Ga. 513 ; in which it was held that the first will impliedly revoked by the second was not Entitled to probate for want of proof which would be suffi- cient to establish a re-execution. e6 Pickens v. Davis (1883), 134 Mass. 252, 45 Am. Rep. 322 ; Gould's Will (1900), 72 Vt. 316, 47 Atl. 1082, 6 Pro. R. A. 1. 67 Revival Depending on Intent, Though Will Contained Revoking Clause. Kentucky — Linginfetter v. Linginfet- ter (1807), Hardin (2 Ky.) 119, Ab- bott p. 371. Maryland — Colvin v. Warford (1863), 20 Md. 357, 391 et seq. Massachusetts — Williams v. Williams (1886), 142 Mass. 515, 8 N. E. 424. Nebraska — Williams v. Miles (1903), — Neb. — , 94 N. W. 705. New Jersey — Randall v. Beatty (1879), 31 N. J. Eq. 643. Pennsylvania — Flintham v. Bradford (1848), 10 Pa. St. 82. And see Marsh v. Marsh (1855), 3 Jones L. (« N. Car.) 77, 64 Am. Dec. 598; Lane v. Hill (1895), 68 N. Hamp. 275, 44 Atl. 393, 73 Am. St. Rep. 591. 68 Proof of Intent by Circumstances. The mere preservation of the former will after the destruction of the later has been held the most cogent evidence of intent to revive* it, and of itself sufficient to entitle the earlier will to probate. Randall v. Beatty, above; Flintham v. Bradford, above. It is held that the intent is to be gathered from all the circumstance's of the case, including the declarations of the deceased. Gould's Will (1900), 72 Vt. 316, 47 Atl. 1082, 6 Pro. R. A. 1; Boudenot v. Bradford (1796), 2 Dall. (Pa., 2 U. S.) 266, 2 Teates 170. Revocation to make a third will does not revive the" first. McClure v. Mc- Clure (1887) , 86 Tenn. 173, 6 S. W. 44. » 9 Pickens v. Davis (1883), 134 Mass. 252, 45 Am. Rep. 322, Chaplin 370. See also Lane v. Hill (1895), 68 N. Hamp. 275, 44 Atl. 393, 73 Am. St. Rep. 591. The declarations of the testator have also been held incompetent for this pur- pose. Randall v. Beatty (1879), 31 N. J. Eq. 643. "Williams v. Williams (1886), 142 Mass. 515, 8 N. E. 424. § 364 WILLS. 232 been provided by statute that no will in any manner revoked shall be revived except by a re-execution of it, or by executing a will or codicil republishing it; 71 and in nearly half of the states it is provided that when a testator duly executes a second will, the revocation thereof shall not revive the will revoked by it, unless it appears "by the terms of such revocation" that it was his intention to revive the former will. 72 Obviously these expressions refer only to revocation in writing; and it has been held that this writing must be signed, published and witnessed as a will would have to be, or be the orig- inal writing republished before the witnesses to the orig- inal execution. 73 b, "IN HIS PRESENCE AND BY HIS DIRECTIONS." § 364. Witnesses to Destruction— Presence of Testator. It will be observed that the Statute of Frauds did not require any witnesses to the act of destruction. The statutes of several states differ from it in requiring two witnesses to prove the act of destruction and authority to 71 England — 1 Vic. (1837), o. 26 New York — 2 R. S. 64 § 53 (Rev. § 22. 1901, p. 4022, § 21). Kentucky — Statutes (1899), § 4834. North Dakota — Rev. Codes (1899), Virginia — Code (1887), § 2519. § 3664. West Virginia— Code (1899), Ch. 77 Ohio — Bates An. Stat. (1900), § § 8. 5960. Construed in Rudisill v. Rodes Oklahoma — Statutes (1893), § 6189. (1877), 29 Grat. (70 Va.) 147; Hodg- Oregon — Hill Am. Stat. (1892), § kinson, Goods of (1893), L. R. 18 P. 3078. 339, 62 L. J. P. 116, 69 L. T. 540. South Dakota — Statutes (1901), § 72 Intention Must Appear by Terms 4518- of Revocation. Utah— Rev. Stat. (1898), § 2753. Alabama— Civil Code (1896), § 4266. W™Mngton— Ballinger's Codes & Arkansas-Die. of Stat. (1894), § Stat ' (1897 >- § 4604 - 7 4Q 3 In New Mexico it is "unless the va- California— Civil Code (1901). § lidity o£ the flrst D 4] _ pa(j m . § ^ 75 ' r, o* .. ,,„„,,» . „„„ Kern v - Kern (1899), 154 Ind. 29, 55 Kansas-Gen. Stat. (1901), § 7676. N . E 1004 „ PrQ 337 Missouri-Rev Stat. (1899), § 4610. In Q ia the ^ Jfo»ta«a-Civil Code (1895), § 1742. vides that the ru]e shaU be P as J^ Nevada — Compiled Laws (1900), § in the text above. Code 1 (1895), § 3079. 3256. 233 REVOCATION OF WILLS. § 365 destroy, in case of destruction by another than the tes- tator. 74 In Iowa cancellation by the testator himself is also required to be witnessed 1 in the same manner as the making of a will. 75 All the statutes agree with the Stat- ute of Frauds in requiring that destruction by another at the testator's request shall be done in his presence. De- struction at his request but out of his presence does not revoke. 76 §365. Ratification of Unauthorized Destruction. A will being destroyed by a relative in the presence of the testatrix, but without her consent, she was importuned to make another will, but refused to do so, saying she could not bring her mind to it, and would leave it as it was. It was claimed that this was a ratification of the unauthorized destruction; but the court held that no rati- fication was shown, and doubted "very much whether it was a tenable argument in any circumstances." 77 In another case the testator could not find his will, and said he would make another, but never did so. The court held that there had been no revocation and allowed parol proof of the contents of the will, but intimated that the unauthorized destruction might be ratified. 78 Similar opinions have been expressed in other cases; 79 and in a late case the court held that the question of revocation should have been submitted to the jury on proof that after the death of the testator the will was found mutilated and defaced by vermin in an old chest in a deserted house, that the testator had seen it after it was so mutilated, and that he made no. attempts to save it or to make a new will. 80 « Such provisions are found In Ala- " Mills v. Millward (1889), L. R. bama, Arkansas, California, Idaho, In- 15 P. D. 20, 59 L. J. P. 23, 61 L. T. dian Territory, Montana, New York, 650. See also Hilton v. Hilton in note 1 North Dakota, Oklahoma, Oregon, to § 343 ante. South Dakota, and Utah. See statutes « Steele v. Price (1844), 5 B. Mon. cited ante § 323. (44 Ky.) 58. Timon v. Claffy (1865), 45 Barb. "Deaves's Estate (1891), 140 Pa. (N. Y.) 438. St. 242, 21 Atl. 395. 75 Gay v. Gay (1882), 60 Iowa 415, 80 Cutler v. Cutler (1902), 130' N. 46 Am. Rep. 78, 14 N. W. 238. Car. 1, 40 S., B. 689, 89 Am. St. Rep. *« Dower v. Seeds (1886), 28 W. Va. 854, 57 L. R. A. 209, 7 Pro. R. A. 559. 113, 137. § 366 WILLS. 234 2. KEVOCATION BY OPERATION OF LAW. §366. Matters Producing. All revocations of wills being by act of the testator or by operation of law, as before stated, 81 and revocations by act of the testator being disposed of, revocations by operation of law are now to be considered. It will be noticed that the Statute of Frauds declared that no devise should be revoked otherwise than as therein provided, all of which methods were by act of the testator. No doubt it was judicial legislation; it may not have been for the best; and very likely it, would not have been so held but for the decisions made before the statute came to be fully appreciated; but the fact is, that soon after the statute went into effect, the courts declared that certain matters before recognized as amounting to a revocation, still had that effect by opera- tion of law, which the statute was not intended to affect. 82 §367. General Statement. — The cases in which revo- cation resulted have varied with changes in judicial opin- ion and statutory provisions: but will be considered herein under five groups, as follows: 1, by alteration of estate; 2, by marriage of the woman; 3, by marriage of the man; 4, by birth of child; and, 5, by other changes in circumstances. A. Br Alteration op Estate. § 368. At Common Law— What Operated as Revoca- tion. One given property by will never got what the tes- tator sold while he lived; for the sale was effective from date, the will from death. 83 At common law wills could not be made to operate on estates in land acquired after the devise was executed; and therefore a subsequent transfer was just as fatal to the devise, though the testa- tor afterwards acquired a like estate in the same lands, " See ante § 320. p. 365; Garnett V. Dabney (1854), 27 82 See Eccle'ston v. Petty alias Speke Miss. 335. (1690), Carthew 79; Dister v. Dister s3 Proof: The unsupported oath of (168S), 3 Lev. 108, 2 Danyers 528, the grantee under the lost deed is not Abbott p. 358 ; Christopher v. Chris- enough against the devisee. Napton v. topher (1771), 2 Dickens 445, Abbott Leaton (1879), 71 Mo. 358, 364. 235 EEVOCATION OF WILLS. §369 or even took it back the same moment and by the same deed. 84 Further, an unexecuted contract to convey al- ways operated in equity as a conveyance, or conversion, the proposed grantor holding the land in trust for the proposed grantee, till the legal title was conveyed. There- fore, if after making a devise the testator entered into a contract to convey the land, the contract operated in equity as a revocation of his devise, though he died with- out executing it, 85 or even entered into a new contract afterward, rescinding the former one. 86 The unpaid price did not go to the heir nor to the devisee, but to the executor or administrator. 87 § 369. What Did Not Work Revocation. As to the part retained there was no revocation at common law by a conveyance of a specific or undivided part of the &e- 84 Illustrations : Common Recovery. As when a tenant in tail, after making a devise, bargained the* land and had it back by common recovery, to bar the entail. Dister v. Dister (1683), 3 Lev. 108, Abbott p. 358 ; Marwood v. Chomley (1732), 3 P. Wins. 163. Deed to Devisee. On bill in equity by the heir against the devisee to get the land, the devise was held revoked by a subsequent deed of the land to the devisee obtained by fraud, and therefore voidable by the heir. Simp- son v. Walker (1831), 5 Sim. Ch. 1, 6 Eng. Ch. 289 ; see also Hawes v. Wyatt (1821), 2 Cox Ch. 263, 3 Brown C. C. 156. A Deed of Exchange avoids the de- vise though the other party returned the land to the heir for defect in his title to the other piece. Atty. Gen. v. Vigor (1803), 8 Ves. 256, 281. Undue Influence. A deed voidable lor undue influence does not defeat the devise. Graham v. Burch (1891), 47 Minn. 171, 49 N. W. 697, 28 Am. St. Rep. 339. A Leading Case. All the learn- ing of the English law on this subject is exhausted in the opinions of the various judges at the several trials of the great case - of Goodtitle d. Hol- ford v. Otway; arising in chancery, and first argued before the common pleas, on ejectment brought, at the direction of the chancellor, to try the legal title, in 1795, reported in 2 H. Bl. 516 ; reargued in 1796 in the same court, i Bos. & Pul. 576 ; decided by the king's bench on error in 1797, 7 Term 399 ; and finally disposed of by the chancellor in 1798, under the name of Cave 1 v. Holford, 3' Ves. 650. In this case land was devised to uses, and afterward the testator deeded the same lands to other uses with remainder to the use of himself and his heirs. The devise was held entirely revoked. 85 Mayer v. Gowland (1779), Dick- ens Ch. 563. 88 Walton v. Walton (1823), 7 Johns. Ch. (N. T.) 258, 11 Am. Dec. 456, Abbott p. 359. Chancellor Kent gives an excellent review of the Eng- lish decisions in this case. The rights of the purchaser being lost by failure to pay and finally quit- claimed to the executor, it was held that the devise 1 was not revoked. Ful- ler's Estate (1898), 71 Vt. 73, 42 Atl. 981. Contra: Bennett v. Earl of Tank- erville (1812), 19 Ves. 170. 87 See the cases just cited, also Curre v. Bowyer (1842), 5 Beav. 6; Parrar v. Earl of Wintrington (1842), 5 Beav. 1; Donohoo v. Lea (1851), 1 Swan (31 Tenn.) 119, 55 Am. Dec. 725; Emery v. Union Society (1887), 79 Me. 334; Moor v. Raisbeck (1841), 12 Sim. Ch. 123, 35 Eng. Ch. 105. Contra: Hall v. Bray (1794), Coxe (1 N. J. L.) 245. 370 WILLS.. 236 vised land, 88 by a deed of partition, 89 by leasing a term for years out of the fee, 90 and in equity not even by a conveyance of the fee in mortgage. 91 A bequest of trust funds is not revoked by the trustee investing them in land with the consent of the testatrix, and taking a deed in her name. 92 § 370. The Doctrine Discredited. The decisions thus far mentioned did not require the courts to hold that the conveyance was a revocation. All that they held might be the result of the rule that after-acquired estates in land could not be devised. But they went further and held that although the conveyance failed for some reason to di- vest the testator of his estate, it revoked the prior devise, on the ground that the testator must have intended it; 93 which had been more properly held before the Statute of Frauds required revocation by intention of the testa- 88 Graves v. Sheldon (1824), 2 D. Chip. (Vt.) 71, 15 Am. Dec. 653; Hawes v. Humphrey (1830), 9 Pick. (26 Mass.) 350, 361, 20 Am. Dec. 481 ; Carter v. Thomas (1826), 4 Me. 341; Warren v. Taylor (1881), 56 Iowa 182, 9 N. W. 128, 2 Am. Pro. 36; Wells v. Wells (1858), 35 Miss. 638; Moore v. Spier (1885), 80 Ala. 129; Pickett v. Leonard (1889), 104 N. Car. 326, 10 S. E. 466. A legacy charged on land was not re- voked by a conveyance of the land. Vernon v. Jones (1690), Freem. Ch. 117. A legacy of the avails of land was held not to Include* money due from the grantee on a deed by testator with mortgage back. McNaughton v. Mc- Naughton (1866), 34 N. Y. 201. In Arnald v. Arnald (1784), 1 Brown Ch. 401, 2 Dickens 646, a de- vise to trustees to sell and divide pro- ceeds was rendered inoperative by tes- tator selling the land. In Connecticut T. & S. D. Co. v. Chase (1903), 75 Conn. 683, 55 Atl. 171, a devise of a power to sell and di- vide was held not defeated by testa- tor's subsequent deed of sale and tak- ing mortgage back. "The executor is now to sell or collect a note secured by mortgage." s» Webb v. Temple (1682), 1 Freem. K. B. 542; Luther v. Kidby (1730), 3 P. Wms. 170 note, mentioned in Atty. Gen. v. Vigor (1803), 8 Ves. 256, 281. See also Grant v. Bridger (1866), L. K. 3 Eg.. Cas. 347. 00 Hodgkinson v. Wood (1622), Cro. Car. 23; Lamb v. Parker (1705), 2 Vern. Ch. 495 ; Zimmerman v. Zimmer- man (1854), 23 Pa. St. 375. 81 Hall v. Dench (1685), 1 Vern. Ch. 329; Bridgwater v. Bolton (1704), 3 Salk. 315, 2 L. Raym. 968 ; Temple v. Duchess of Chandos (1798), 3 Ves. 685; McTaggart v. Thompson (1850), 14 Pa. St. 149. A mortgage to the sole devisee, made in the belief that the will is void and for the purpose of taking its place, does not revoke. Stubbs v. Houston (1859), 33 Ala. 555. »2 Clements v. Horn (1888), 44 N. J. Eq. 595, 18 Atl. 71. 93 Shove v. Pincke (1793), 5 Term 124, 310, an appointment beyond power; Beard v. Beard (1744), 3 Atk. 72, deed by husband to wife ; Doe d. Lushington v. Bishop of Landaff (1807), 2 Bos. & Pul. N. R. 491. But see Eilbeck v. Wood (1826), 1 Russ. Ch. 564, holding will not revoked by void deed of married woman. 237 REVOCATION OF WILIS. § Z7X tor to be by burning, etc., or by a later will duly exe- cuted. 94 This notion rests mostly on mere dicta, and is not much recognized in America. 95 It is generally held here that the only effect of the subsequent conveyance is in so far as it removes the property from the operation of the will, and that it never amounts to a revocation. 98 § 371. Under Modern Statutes. Two classes of statutes affect these common law doctrines. First, it is generally provided that the effect of the will on after-acquired property shall depend on the intention of the testator, or that the will shall be construed as if made just before death unless it shows a contrary intention. 97 These stat- utes dispose of the objection which prevented the devisee at common law taking land sold by the testator after mak- ing the will, and repurchased. 98 Second, the statutes in most states provide that no incumbrance, conveyance, or other act altering the estate of the testator in anything previously disposed of by will, shall prevent the opera- tion of the will on any interest which he might have dis- posed of by will at his death, or which would otherwise pass to his heir or next of kin;, and that if the testator contracts to sell land previously devised, it shall never- theless pass to the devisee, subject to any remedies on the contract, and that he shall have any part of the price remaining unpaid at the death of the testator. Some statutes do not contain all of these provisions. 99 94 Montague v. Jeffries (1596), »7 For comments on these statutes Moore K. B. 429, noted in 1 Roll Ab. see post, §§ 526-7. Also Woerner 615. American Adm. § 419. 95 Bennett v. Gaddis (1881), 79 Ind. 98 Hopper's Estate (1884), 66 Cal. 347. 80, 4 Pac. 984 ; Morey v. Sohier 96 "The question whether a will is (1885), 63 N. Ham. 507, 3 Atl. 636, 56 entitled to probate does not depend on Am. Rep. 538 ; Bowen v. Johnson the question whether at the time of (1850), 6 Ind. 110, 61 Am. Dec. 110; the testator's death, or at any previous Gregg v. McMillan (1899), 54 S. Car. or subsequent time, there was any 878, 32 S. E. 447. property which it could dispose of." 99 Statutes as to revocation by Morey v. Sohier (1885), 63 N: Ham. conveyance or incumbrance. 507, 3 Atl. 636, 56 Am. Rep. 538; Alabama — Code (1896), §§ 4245- Tillman's Estate (1892, Cal.) 31 Pac. 4256. Devisee may have unpaid price 563. or cancellation of deed obtained by A conveyance held a good plea in fraud. Powell v. Powell (1857), 30 bar of probate. Epps v. Dean (1839), Ala. 697. Devise is not revoked by 28 Ga. 533. deed to devisee, price unpaid. Welsh §371 WILLS. 238 v. Pounders (1860), 36 Ala. 668. Oral declarations are Incompetent to show revocation was intended by sale, price unpaid. Slaughter v. Stephens (1886), 81 Ala. 418, 2 South. 145. Arkansas — Sand. & H. Dig. Stat. (1894), § 7398. California— Civil Code (1901), §§ 1301-1304. Bruck v. Tucker (1867), 32 Cal. 426. Idaho— Civil Code (1901), §§ 2516- 2319. Indiana — Burns An. Stat. (1901), §§ 2733-2736. A deed to the devisee of part of the land devised to satisfy and revoke the whole devise does not have that effect, and declarations of the testator cannot be proved to show his intent. Belshaw v. Chitwood (1895), 141 Ind. 377, 40 N. B. 908 ; Swails V. Swails (1884), 98 Ind. 511. The legatee of "all the personal property which I may have at my death," is entitled to the notes for the price of the land sold by the testator after he had devised it to another by the same will. Simmons v. Beazel (1890), 125 Ind. 362, 25 N. E. 344. Indian Territory — Statutes (1899), §§ 3569-3570. Kansas— Gen. Stat. (1901), §§ 7969- 7971. Kentucky— Statutes (1899), § 4835. The devisee being an heir, is entitled to the proceeds of the land sold, as against the residuary legatee. Hasel- wood v. Webster (1884), 82 Ky. 409. Louisiana — Civil Code (1900), Arts. 1695-1700. Missouri^-Re-v. Stat. (1899), §§ 4608, 4609. Montana — Civil Code (1895), §§ 1746-1749. A deed executed and de- livered in escrow till payment of price does not completely divest the title of the testator so as to entitle the resi- duary legatee to the proceeds as against the devisee. Chadwick v. Tatem (1890), 9 Mont. 354, 23 Pac. 729. Nevada — Comp. Laws (1901), §§ 3082-3083. New Hampshire — A conveyance of the whole estate by deed containing a power of revocation, by which the tes- tator afterward revoked it, does not defeat the devise. Morey v. Sohier (1885), 63 N. Hamp. 507, 3 Atl. 636, 56 Am. Rep. 538. Rev) Jersey — A devisee is not put to election by a deed being made after the will conveying to him land the will gave to another. He may keep both parcels, Hattersley v. Bissett (1894), 51 N. J. Eq. 597, 29 Atl. 187, 40 Am. St. Rep. 532. New York— -2 R. S. 64, 45-48 (Banks, 1901, p. 4020, §§ 13-16). After a con- tract by the testator to sell, the ex- ecutor has no authority under a power to sell and divide the proceeds, a de- vise of the proceeds not being a devise of the land. Roome v. Philips (1863), 27 N. T. 357, 364. See also Holly v. Hirsch (1892), 63 Hun. 241. As to right to proceeds after contract to sell or complete sale see Vandemark v. Van- demark (1857), 26 Barb. 416; Knight v. Weatherwax (1838), 7 Paige Ch. 182. North Carolina— Rev. Code (1855), Chap. 119, §§ 24, 25. North Dakota — Rev. Codes (1899), §§ 3668-3671. Ohio — Giaque's Rev. Stat. (1895), §fc 5954-5957. A reversion coming back to the testator under a deed passes under the prior devise. Brush v. Brush (1842), 11 Ohio 287. Oklahoma — Statutes (1893), §§6192- 6195. Oregon — Hill's An. Laws (1892), §§ 3073-3074. . South Dakota — Statutes (1901), §§ 4521-4524. Utah— Rev. Stat. (1898), §§ 2755- 2758. Vermont — See Fuller's Estate (1898), 71 Vt. 73, 42 Atl. 981, hold- ing devisee entitled to land, without reference to statute, rights under the contract being lost. Virginia — Code (1887), § 2520. "Washington — Bal. Codes & Stat. (1897), §§ 4599, 4600. West Virginia — Code (1899), c. 77 §9. Wisconsin — The devisee was awarded the unpaid price in a contest with the widow for it as part of the personalty, the statute providing merely that the will should be construed as if made just before death. Lefebvere's Estate (1898), 100 Wis. 192, 75 N. W. 971. 239 EEVOCATION OF WILLS. § 372 B. By Marriage of the Woman.* § 372. At Common Law. It was established by Forse & Hembling's Case (1589), 2 and never afterwards doubted, that marriage of a woman operated as an abso- lute revocation of ber will previously made, and that it was not revived by ber surviving ber busband. 3 Tbese decisions were based on tbe effect of marriage on ber testamentary capacity, and on tbe property rigbts tbereby acquired by tbe busband. Marriage left no personal property for tbe will to operate on, for it became her husband's absolutely by the act of marriage and his tak- ing possession of it. It was thought unreasonable also that the will should be allowed to operate as to personalty not taken possession of by him and as to land, because the loss of her testamentary capacity caused by the mar- riage would otherwise make the will irrevocable and un- alterable from that time. Therefore, the marriage of a woman never operated as a revocation of a will previously made in exercise of a power; which the marriage did not deprive her of capacity to exercise afterwards, and the subject matter of which did not become her husband's by the marriage. 4 §373. Under the Married Women's Acts. The founda- tions on which the rule was based having been swept away, by statutes securing married women's property to them free from all right or control by their husbands, and giving them the powers of a feme sole in dealing with and disposing of it by will or otherwise; it has been al- most universally held that the rule ceased with the reason for it, and that marriage of a woman does not revoke her previous will in the absence of any statute so provid- 1 See notes 49 Am. Rep. 329 ; 80 Am. 3 Garnett v. Dabney (1854), 27 Miss. Dec. 516; 2 Pro. K. A. 485. 335. 24 Coke 60b, Abbott p. 362, Ander- 1 Logan v. Bell (1845), 1 C. B. (50 son C. P. 181. See also Doe d. Hods- B. C. L.) 871; Osgood v. Bliss (1886), den v. Staple (1788), 2 Term 684; 141 Mass. 474, 6 N. B. 527, 55 Am. Hodsden v. Lloyd (1789), 2 Brown C. Rep. 488. C. 534. §374 WILLS. 240 ing. 5 In Massachusetts it was held that the marriage of a woman is such a change in her condition in life that her previous will is thereby revoked, though the statutes had enabled married women to control their property and dispose of it by will. 8 Women being on a footing with men, their wills are revoked by marriage and birth of issue combined, though by neither alone. 7 § 374. Statutes on Revocation by Marriage. The stat- utes of Ohio provide that an unmarried woman's will is not revoked by her marriage. 8 In a number of states it is provided that a will "executed by an unmarried woman" is revoked by her subsequent marriage. 9 Under 6 District of Columbia — Chapman v. Dismer (1899), 14 App. D. C. 446. Florida — Colcord v. Conroy (1898), 40 Fla. 97, 23 South. 561. Illinois— Tuller, In re (1875), 79 III. 99, 22 Am. Eep. 164. Maine — Emery, Appellant (1889), 81 Me. 275, 17 Atl. 68, Chaplin 313, Ab- bott p. 364. . Maryland — Roane v. Hollingshead (1892), 76 Md. 369, 25 Atl. 307, 35 Am. St. Eep. 438, 17 L. R. A. 592. Michigan — Noyes v. Southworth (1884), 55 Mich. 173, 20 N. W. 891, 54 Am. Rep. 359. Minnesota — K e 1 1 y v. Stevenson (1902), 85 Minn. 247, 88 N. W. 739, 56 L. R. A. 754. Ifew Hampshire — Fellows v. Allen (1881), 60 N. Hamp. 439, 49 Am. Rep. 328. New Jersey — Webb v. Jones (1882), 36 N. J. Eq. 163, 49 Am. Rep. 329n. yew York — The will of a married woman is not revoked by the death of her husband and her marrying again. McLarney, Matter of (1897), 153 N. T. 416, 47 N. E. 817, 60 Am. St. Rep. 664; Chapman v. Dismer (1899), 14 D. C. App. 446. Rhode Island — Miller v. Phillips (1869), 9 R. I. 141. Vermont — Morton v. Onion (1872), 45 Vt. 145. Wisconsin — Lyon's Will (1897), 96 Wis. 339, 71 N. W. 362, 65 Am. St. Rep. 52. When a married woman could make a will of realty but not of personalty without the consent of her husband, her marriage was held to revoke her will as to the personalty but not as to the realty. Carey's Estate (1877), 49 Vt. 236, 24 Am. Rep. 133. Yet her husband would certainly be entitled to his curtesy. Vandeveer v. Higgins (1899), 59 Neb. 333, 80 N. W. 1043. The will of a widow to her children is not revoked by her marriage. Ward's Will (1887), 70 Wis. 251, 35 N. W. 731, 5 Am. St. Rep. 174. Delaware — A will made in 1874 by a woman married in 1878 was held re- voked notwithstanding the statute of 1875 enabling married women to make wills, because the statute is not retro- spective. Smith v. Clemson (1880, Del. Supr. Ct.), 6 Hous. 171. See on this point post, § 406. « Swan v. Hammond (1884), 138 Mass. 45, 52 Am. Rep. 255, Mechem 75. 7 Colcord v. Conroy (1898), 40 Fla. 97, 23 South. 561. 8Giaque's Statutes (1895), § 5958. » Will executed by unmarried wo- man revoked by marriage. Such provisions exist in the following states at least : Alabama — Code (1896), § 4250. Arkansas — Dig. of Stat. (1894), § 7396. California — Code (1901), §§ 1298, 1300. . Idaho— Civil Code (1901), § 2515. Indiana — Burns's An. Stat. (1901), § 2732. Indian Territory — Statutes (1899), § 3568. Missouri — Rev. Stat. (1899), § 4607. 241 EEVOCATION OF WILLS. § 374 these statutes it is held that a widow is an "unmarried woman," whose will is revoked by her subsequent mar- riage; 10 but that a will made by a married woman is not revoked by the death of her husband and her subsequent marriage, because it was not "executed by an unmarried woman." 11 These statutes are held not to be impliedly repealed by subsequent statutes giving married women power to make wills, 12 by statutes giving them power to deal with their property, by statutes providing in general terms that no will shall be revoked except by burning, tearing, etc., or by another will or writing, nor by all of these combined. 13 C. By Marriage or the Man." § 375. At Common Law. It seems never to have been claimed in England that the marriage of a man would of itself revoke his previous will. Indeed, revocation by marriage with birth of issue is not mentioned by Swin- burne nor by any writer of his day. This was first recog- nized as revoking a will of personalty in the delegates' court in Overbury v. Overbury (1682) ; 15 and it was not till after a long period of doubt and dissension, 16 that it Montana — Civil Code 8 1745. 1, 40 Pac. 15, 28 L. R. A. 414 ; McLar- Nebra^ka — Vandeveer v. Higglns ney, Matter of (1897), 153 N. Y. 416, (1899), 59 Neb. 333, 80 N. W. 1043. 47 N. E. 817, 60 Am. St. Rep. 664; Nevada — Comp. Laws (1900), § HIbberd v. Trask (1903), — Ind. — , 3081. 67 N. B. 179. New York — 2 R. S. c. 64, 8 44 12 Fransen's Will (1856), 26 Pa. St. (Banks, 1901, p. 4020, § 12). 202; Brown v. Clark (1879), 77 N. Y. North, Dakota — Rev. Code (1899), 8 369, Mechem 78, Chaplin 315; Ellis v. 3667. Darden (1890), 86 Ga. 368, 12 S. E. Oklahoma — Statutes (1893), § 6191. 652, 11 L. R. A. 51. Oregon — Hill's An. Laws (1892), 8 13 Booth's Will (1902), 40 Ore. 154, 3072. 66 Pac. 710 ; Vandeveer v. Higglns South Dakota — An. Stat. (1901), 8 (1899), 59 Neb. 333, 80 N. W. 1043. 4520. 14 See notes 80 Am. Dec. 517 ; 2 In Pennsylvania "a will executed by Pro. R. A. 288. a single woman shall be deemed re- 15 2 Shower 242. Applied in Lugg v. voked by her subsequent marriage." Lugg (1699), 1 L. Raym. 441, 2 Salk. B. & P. Dig. of Stat. (1895), p. 2104, 592, 12 Mod. 236. See also extended g 20. discussion by Dr. Hay in Shepherd v. Statutes applicable to both men and Shepherd (1770), 5 Term 51 note. women will be considered later. See is See elaborate review of the deci- I 379. sions by Chancellor Kent in Brush v. l* Kaufman, In re (1892), 131 N. Y. Wilkins (1820), 4 Johns. Ch. (N. Y.) 620, 30 N. E. 242, Chaplin 317, 15 L. 506. Also Baldwin v. Spriggs (1886), R. A. 292. 65 Md. 373, 5 Atl. 295, Mechem 76. liComassi, In re (1895), 107 Cal. 16 § 376 WILLS. 242 was finally settled in the court of exchequer, in Christo- pher v. Christopher (1771), ir that marriage followed by birth of issue operated to revoke a man's previous devise of land. 18 It was next held after great deliberation, in the king's bench, that birth after the testator's death, of issue of a marriage after the will was made, revoked it. 19 The oldest son being entitled to all the land under the English law of descent, it was held that if a son of a former marriage survived the testator, marriage and issue after the will was. made, revoked it only as to personalty; since entire revocation would do the widow and her issue no good. 20 § 376. Same— Provision for Widow and Issue. In all these cases it was admitted that there was no revocation if the will provided for the widow and issue, 21 nor if it did not dispose of the whole estate. But it was held that giving the whole estate to the widow would not do, though the issue would or might inherit from her; nor was it enough that other property not affected by the will was also acquired afterwards. 22 This is the rule in America. 23 Revocation could not be prevented by pro- viding for the wife and issue by ante-nuptial settlement. 24 §377. Whether Presumptive or Absolute. Some judges thought marriage and issue only raised a presump- tion of revocation, based on the presumed change in the wish of the testator, and liable to be avoided by parol proof of the contrary; and this view was sanctioned by Chancellor Kent. 25 But in the great case of Marston v. 17(1771), Dickens 445, Abbott p. 20 Sbeath v. York (1813), 1 Ves. & 365. Beam. 390. 18 Birth followed oy second, marriage. 21 So held In Kenebel v. Scrafton In Gibbons v. Caunt (1799), 4 Ves. (1802), 2 East 530. 840, the master of the rolls said he 22 Marston v. Roe d. Fox (1838), 8 could see no reason why birth under a ^d. & El. 14, 35 E. C. L. 303. previous marriage followed by a sec- 23 Baldwin T . gpriggs (1886), 65 ond marriage should not have the same M(J 37g 5 Aa 2Q ^ Mechem 76 Gff6Ct 19 Doe d. Lancashire v. Lancashire "Israeli v. Eodon (1837), 2 Moore (1792), 5 Term 49. P - C - 43 ' 66 - Contra: Brown v. Thompson (1702), 26 Brush v. Wilkins (1820), 4 Johns. 1 Bq. Cas. Abr. 413 pi. 15, 1 P. Wms. Ch. (N. T.) 506. To the same effect: 304 note. Wheeler v. Wheeler (1850), 1 B. I. 243 REVOCATION OF WILLS. § 378 Eoe d. Fox (1838), 26 it was held in the court of exchequer chamber that the revocation was a matter of law alto- gether independent of any desire of the testator, and therefore any evidence of his desire not amounting to a re-execution was immaterial and incompetent; and this is now the rule. 2T §378. Under American Statutes of Descent. Our courts generally hold that marriage of a man does not of itself revoke his previous will in the absence of con- trolling statute. 28 Under the English law the wife re- ceived from the estate of her husband only her dower if he died intestate, and of that he could by no means de- prive her. But under the American statutes making each spouse heir to the whole or a part of the other's estate in case of intestacy, it has been urged that there is as much reason for holding that revocation results from marriage alone as there was originally for holding that it resulted from marriage and birth of issue; and a few courts have held on this ground that a man's will is revoked by marriage alone. 29 But under similar statutes it has been held in other states that marriage alone does not revoke. 30 Where the widow and children not provided for take as in case of intestacy it has been held that there is no revo- cation in any event. 31 In the absence of statute control- ling, it is generally held that marriage with issue after the will is made revokes it. 32 364; Miller v. Phillips (1869), 9 K. I. land (1880), 1 Idaho 786; Brown v. 141; Yerby v. Yerby (1802), 3 Call. Scherrer (1894), 5 Col. App. 255, 38 (Va.) 334. Pac. 427, affirmed on the opinion of the 26 8 Ad. & El. 14, 35 E. C. L. 303. court below in 21 Col. 481, 42 Pac. 27 Baldwin v. Spriggs (1886), 65 668, as Scherrer v. Brown. Md. 373, 5 Atl. 295, Mechem 76; 30 Hulett v. Carey (1896), 66 Minn. Knut v. Knut (1900, Ky.), 58 S. W. 327, 69 N. W. 31, 61 Am. St. Rep. 419, 583. 34 L. R. A. 384 ; Goodsell's Appeal 28 Bowers v. Bowers (1876), 53 Ind. (1887), 55 Conn. 171, 10 Atl. 557; 430; Swan v. Sayles (1896), 165 Mass. Morgan v. Davenport (1883), 60 Tex. 177, 42 N. E. 570 ; Graves v. Sheldon 230. (1824), 2 D. Chip. (Vt.) 71, 15 Am. si Hoitt v. Hoitt (1885), 63 N. Dec. 653. Hamp. 475, 3 Atl. 604, 56 Am. Rep. 29 Tyler v. Tyler (1857), 19 III. 151 ; 530, Mechem 71 ; Morgan v. Davenport American Board of C. F. M. v. Nelson (1883), 60 Tex. 230. (1874), 72 111. 564; Duryea v. Duryea 32 Shorten v. Judd (1898), 60 Kan. (1877), 85 111. 41, 50; Morgan v. Ire- 73, 55 Pac. 286, 54 Am. St. Rep. 587; § 379 WILLS. 244 § 379. Statutes as to Marriage. Every will made by man or woman is declared revoked by his or her marriage in Illinois; 33 and with the exception of wills made in exercise of a power as to property which in default of exercise would not descend to his heirs or next of kin, the same is true in Kentucky, Massachusetts, North Carolina, Ehode Island, Virginia, and West Virginia. 34 The mar- riage of the "testator" revokes a prior will containing no provision in contemplation of such event, in Connecticut and Georgia. 35 It is so in Arizona and Nevada if the wife survives him, unless she is so mentioned in the will as to show he intended no provision, and other evidence is incompetent to show his intention. 36 The widow would then take as if he died intestate in Pennsylvania and Dela- ware, 37 but the will is not declared revoked. In Utah marriage and survival of the wife revokes the previous will, unless the marriage was provided for. 38 A will dis- posing of the whole estate is declared revoked by the testator's marriage and birth of issue, if wife or issue survives him, unless the issue is provided for by gift or settlement or in the will, or so mentioned in it as to show intention not to provide, and no other evidence can be received to rebut the presumption, in Alabama, Arkan- sas, California, Idaho, Indian Territory, Missouri, Mon- tana, New York, Oklahoma, South Dakota, and Wash- Belton v. Sumner (1893), 31 Fla. 139, Rhode Island — Gen. Laws (1896), c. 12 South. 371 ; Brush v. Wilklns 203, § 16. (1820), 4 Johns. Ch. (N. T.) 506, in Virginia— Code (1887), § 2517. which Chancellor Kent reviewB the de- cisions at length. Marriage and Adoption of a Child West Virginia — Code (1899), c. 77, 8 6. was held equivalent in Glascott v. 3B Connecticut— Gen Stat. (1902), § Bragg (1901), 111 Wis. 605, 87 N. W. 297 - 853, 56 L. R. A. 258. Georgia— Code (1895), § 3347. 33Hurd Bev. Stat. (1899), c. 39, ss Arizona— Kev. Stat. (1901), 5 8 10. 4216. 34 statutes making marriage re- We „ 0(to _ Comp . Lawa (1900)> § vote. . 157. 689. But see Hawhe v. Chicago & W. I. But see Burns v. Allen (1893), S3 Ry. Co. (1897), 165 111. 561, 46 N. E. Tenn. 149, 23 S. W. 111. 240. 84 Carpenter v. Snow (1898), 117 '* Sutton v. Hancock (1902), 115 Ga. Mich. 489, 76 N. W. 78, 72 Am. St. 857, 42 S. E. 214. Compare Wolffe v. 251 REVOCATION OF WILLS. §388 E. By Other Changes in Ciboumstances. §388. Forecast. Many matters other than those al- ready discussed have been urged from time to time as amounting to a revocation by operation of law; but the courts have been very loath to recognize anything else as having that effect. §389. Changes in Property and Beneficiaries Affect- ing Proportions. A will is not revoked as to the sur- viving beneficiaries and remaining property, by the death of so many beneficiaries, the loss or sale of so much of the property owned when the will was made, or the acqui- sition of much more, that when the will goes into effect its operation is entirely different from what it would have been if the testator had died the day he made it. For ex- ample, a testator devised land to each of his two children and gave a legacy to a bastard grandchild. Afterward he lost most of his property, sold some of the land, suf- fered creditors to take the rest, and died leaving only enough property to pay the legacy to the bastard; but the will was held not revoked. 84 In another case if the testa- tor had died the day he made his will it would have di- vided his estate between his three sons as follows: W $5,700, E $3,700 and G- $8,700; but the changes in his prop- erty during the ten years before he died made it then: W $3,700, E $11,000, G $50. The will was held not revoked. 85 In another case the testator made a will dividing his land specifically between wife and children, and with a residu- ary clause affecting a little personalty. During the twenty years before he died, his wife and one of the resi- duary legatees (a son) died; and he sold most of the land, married again, increased his fortune from $26,000 to $71,- 000, and died leaving the will among waste paper wrapped up with drafts for a different will. It was held Loeb (1893), 98 Ala. 426, IS South. "Wogan v. Small (1824), 11 g. & 744. E. (Pa.) 141. "Bvery child I shall hereafter have »« Wetister v. Webster (1870), 105 shall be upon a like equality" is suf- Mass. 538. ficient. Stevens v. Shippen (1877), 28 N. J. Hq. (1 Stew.) 487, 535. § 890 WILLS. 252 not revoked. 86 In another case a man made a will pro- viding for his wife, children, and afterborn children, soon after became insane, and so remained till his death, forty- three years later. During that time a child was born, an- other died, the wife died, and his land had risen in value from $5,000 to $20,000. The will was held not revoked. 87 In this case Shaw, 0. J., quotes approvingly from Coke: ' ' When a man of sound memory makes his will, and after- wards, by the visitation of God, becomes of unsound mem- ory (as every man, for the most part, before his death is), God forbid that this act of God should be in law a revoca- tion of his will." 88 § 390. Changes in Affections. No changes in the affec- tions of the testator operate as a revocation. A will made in a fit of anger, to disinherit a son, is not revoked by the testator becoming reconciled to the son. 89 § 391. Divorce Does Not Seem to Revoke. A husband and wife made mutual wills in favor of each other at the same time, and the wife kept both. Afterward they were divorced, and the decree settled the property rights. Then the woman destroyed her will and secretly preserved his. When she offered it for probate the court held it re- voked. 90 But it has been held in other states that divorce does not revoke the man's will, by whioh he gave his property to the woman. 91 "Hoitt T. Hoitt (1886), 63 N. Ham. Cooper's Estate (1846), 4 Pa. St. 88; 475, 3 Atl. 604, 56 Am. Rep. 530, Warren v. Taylor (1881), 56 Iowa, Mechem 71. 182, 9 N. W. 128, 2 Am. Pro. 36 ; Har- »* Warner v. Beach (1855), 4 Gray groves v. Redd (1871), 43 Ga. 142. (70 Mass.) 162, Cbaplin 321. 8 » Jones v. Moseley (1866), 40 Miss. 88 For further illustration of the 261, 90 Am. Dec. 327. subject of revocation by changes in ,0 Lansing v. Haynes (1893), 95 circumstances see Graves v. Sheldon Mich. 16, 54 N. W. 699, 35 Am. St. (1824), 2 D. Chip. (Vt.) 71, 15 Am. Rep. 545. Dec. 653; Blandin v. Blandin (1837), "Charlton v. Miller (1875), 27 9 Vt. 210; Verdier v. Verdier (1855), Ohio St. 298, 22 Am. Rep. 307; Corker 8 Rich. L. (S. Car.) 135; Prate* v. v. Corker (1891), 87 Cal. 643, 25 Pac. Whittle (1881), 16 S. Car. 40; For- 922; Baacke v. Baacke - (1896), 50 Neb. ney's Estate (1894), 161 Pa. St, 209; 18, 69 N. W. 303. CHAPTER XL REPUBLICATION AND RE-EXECUTION. § 392. Nature and Methods. § 305. Essentials of Indirect Re-exc- § 393. Essentials of Direct Re-execu- cutlon. tlon §396. Effects of Republication — In- , * corporating and Validating. 5 394. Adoption of Original , 397 , Making Will Speak from Signatures. Republication. § 392. Nature and Methods. In connection with execu- tion and revocation of wills, re-execution and republica- tion should be mentioned, as a closely connected but dis- tinct topic. Republication and re-execution may be ac- complished directly or indirectly, directly by signing and witnessing the same paper again, indirectly by sufficient reference to it in a duly executed codicil. §393. Essentials of Direct Re-execution. Whatever would suffice as an original execution would suffice as a re-execution, which is in fact merely the making of a new will. 92 Before the statutes required wills to be signed by the testator and subscribed by witnesses, oral repub- lication was sufficient; 93 and in Pennsylvania, where the witnesses are not required to subscribe, this would seem to be still sufficient in many cases. 94 But where wills are required to be in writing and signed by the testator and witnesses this would not suffice; because it is in effect making a new will, and therefore if any of the essentials of an original execution are lacking it amounts to no more than if the same defects occurred in the original execu- tion. 95 The re-execution must be complete in itself; it is 92Havard v. Davis (1810), 2 Bin- 216, Chaplin 377; Love v. Johnston ney (Pa.), 406. (1851), 12 Ired. L. (34 N. Car.) 355. 93Alford v. Earle (1690), 2 Vera. There are exceptions to this rule in Ch. 209 and notes. the revival of a will by the destruction 94 Havard v. Davis, supra ; Jones v. of the will revoking it, and where revo- Hartley (1837), 2 Whart. 103; Charles cation by operation of law is held to v. Huber (1875), 78 Pa. St. 448. be only presumptive. 95 Barker v. Bell (1871), 46 Ala. See ante §§ 361-363, 377. 253 § 394 WILLS. 254 not sufficient merely to supply that in •which the first was defective. 98 § 394. Adoption of Original Signatures. In one case re-execution sufficient to incorporate a new clause was held to be made out by proof that the testator had it in- serted in the presence of himself and the witnesses to the original execution; and that all, recognizing the paper and intending a re-execution, then adopted for that pur- pose the signatures made by them when the will was first executed. The court declared that the writing of the names again would have been a useless ceremony. 97 But in a recent case in another court on similar facts the cor- rectness of this decision was denied. 98 § 395. Essentials of Indirect Re-execution. It is of course essential to a republication by codicil that the codicil itself is well executed. 99 The codicil revives the will by incorporating it and becoming a part of it. The acknowledgment of the former will or codicil must appear by some reference to it in the later duly executed writing. 1 But the republished will need not be present when the codicil is executed, 2 and no intention to republish it need appear or exist, whether the codicil is written on the same or another paper. The fact that the later paper refers to 98 Haddock, Goods of (1874), L. R. sufficient to republish a will not wrlt- 3 P. & D. 169, 30 L. T. (n. s.) 696, 22 ten by the testator, though the codicil W. R. 741, 43 L. J. P. 29, Abbott 322. was wholly written and signed by him. 97 Wright v. Wright (1854), 5 Ind. Sharp f. Wallace (1886), 83 Ky. 584. 389. A Letter by the testator to his at- It has also been intimated that this torney, announcing the former's mar- would be sufficient to revive a will riage, and directing the latter to pre- upon destruction of the one revoking pare a codicil which would give to the it, under a statute requiring the in- wife whatever she would be entitled tention to revive to appear by the to by law, was held to be testamentary terms of the revocation. Stlckney's in character, and a sufficient republi- Will (1899), 161 N. T. 42,' 55 N. E. cation of the will revoked by the mar- 396, 76 Am. St. Rep. 246.' riage. Barney v. Hayes (1892), 11 98Hesterberg v. Clark (1897), 166 Mont. 571, 29 Pac. 282, 28 Am. St. III. 241, 46 N. E. 734, 57 Am. St. Rep. Rep. 495. 135, 2 Pro. R. A. 148. Compare also l Allen v. Maddock (1858), 11 Moore Charles v. Huber (1875), 78 Pa. St. P. C. C. 427; Smith, in re (1890), 45 448. Ch. DIv. 632. »9 Lea v. Libb (1689), Carthew 35, 2Wieoff's Appeal (1850), 15 Pa. St. 1 Shower 69, 88, 3 Balk. 395, Abbott 128, 53 Am. Dec. 597 ; TJtterton v. Rob- 311. Ins (1834), 1 Ad. & EI. 423, 28 E. C An Unattested Codicil was held In- L. 111. 255 BEPUBLICATION AND BE-EXECUTION. 396 the former as a will, or purports to he a codicil to it, raises a presumption of intention to republish, which can he avoided only by a contrary intent appearing on the face of the later writing, 3 though the effect of the re- publication is to displace a subsisting will revoking the one referred to. 4 §396. Effects of Republication— Incorporating and Validating. Re-execution, directly on the same writing, or indirectly by incorporating it in a codicil by reference, operates in several ways. 1. It makes the republished will valid and effective, though never before so, for want of due execution, 5 because the testator was insane when he first executed it, 8 or because it was obtained at first by undue influence; 7 and if once valid but since revoked, by act of the testator, or by operation of law, 8 it is revived. 2. It incorporates and makes operative any alterations 9 in and additions to the will 10 made after it was first exe- 3 Goodtitle d. Woodhouse v. Mere- dith (1813), 2 Maule & Sel. 5, Abbott 373; Barnes v. Crowe (1792), 1 Ves. Jr. 486; Harvey v. Chouteau (1851), 14 Mo. 587, 55 Am. Dec. 120. The Origin and History of the doc- trine of implied republication by codi- cil are reviewed in Plggott v. Waller (1802), 7 Ves. 98, and a note to that case gives many authorities showing its scope. 4 Campbell, Matter of (1902), 170 N. T. 84, 62 N. E. 1070 ; Neff's Appeal (1865), 48 Pa. St. 501 ; Walpole v. Or- ford (1797), 3 Ves. 402; Crosbie v. McDougal (1799), 4 Ves. 610. sBeall v. Cunningham (1843), 3 B. Mon. (42 Ky.) 390, 39 Am. Dec. 469 ; Murfleld's Will (1888), 74 Iowa, 479, 38 N. W. 170; Harvey V. Chouteau (1851), 14 Mo. 587, 53 Am. Dec. 120; Skinner v. American Bib. Soc. (1896), 92 Wis. 209, 65 N. W. 1037; Carleton d. Griffin v. Griffin (1758), 1 Burr. 549. Proof of Execution. The execution of the codicil being duly proved, it is unnecessary to prove the execution of the will. Hobart v. Hobart (1895), 154 111. 610, 39 N. B. 581, 45 Am. St. Rep. 151. Gifts Made Good. The codicil being duly executed, the gifts to the wit- nesses to the will are made good, and the whole will made good if the in- terest of the witnesses would defeat it. Mooers v. White (1822), 6 Johns. Ch. (N. T.) 360, 374. e Brown v. Eiggin (1880), 94 III. 560. TO'Neall v. Farr (1844), 1 Elch. L. (S. Car.) 80, Abbott 337, 340; Camp- bell v. Barrera (1895 Tex. Civ. App.), 32 S. W. 724. 8 As by the marriage of the testa- trix. Brown v. Clark (1879), 77 N. Y. 369, Mechem 78, Chaplin 315. An instrument declared on its face to be a codicil to a will revives it though it had been revoked by a later subsisting will, and parol is Incompe- tent to show that reference to the later will was Intended. Neff's Appeal (1865), 48 Pa. St. 501; Walpole v. Orford (1797), 3 Ves. 402; Campbell, Matter of (1902), 170 N. T. 84, 62 N. B. 1070. 9 Hubbard v. Hubbard (1902), 198 111. 621, 64 N. E. 1038. But see Lush- ington v. Onslow (1848), 6 Notes of Cas. 183, 12 Jur. 465. io Shaw v. Camp (1896), 163 111. 144, 45 ft. E. 211, 36 L. B. A. 112 ; Gilmor's Estate (1893), 154 Pa. St. § 397 WILLS. 256 cuted; but does not validate unexecuted codicils on sep- arate papers in no way referred to. 11 § 397. Making Will Speak from Republication. 3. It makes the language of the will speak from the date of the re-execution. The language of the will is held to ap- ply to property acquired after it was first executed if such would be a reasonable interpretation of such lan- guage written at the date of the re-execution. 12 No inten- tion to pass the after-acquired lands need appear or exist. It is enough that no contrary intention appears. 13 A gift on condition that the beneficiary discontinue his associa- tions with a certain woman is made absolute by a codicil republishing the will after he has married the woman. 14 A gift to a son Joseph has been held to pass to a second son of the same name born after the death of the first and before the will was republished. 15 Ee-execution is gen- erally held not to renew gifts that had been adeemed or satisfied. 16 A gift to a charitable use which the statute- declares void if made within thirty days of the testator's death is not rendered invalid by executing a codicil to the will within the thirty days. 17 523, 26 Atl. 614, 35 Am. St. Rep. 855; 14 Hawke v. Euyart (1890), 30 Neb. Burge v. Hamilton (1884), 72 Ga. 568. 149, 46 N. W. 422, 27 Am. St. Rep. Parol Evidence is competent to show 391. what was the condition of the will is Perkins v. Micklethwalte (1714), when it was republished. See cases 1 P. Wms. 274, Abbott 372. above cited. isTanton v. Keller (1897), 167 111. liHaynes v. Hill (1849), 7 Notes of 129, 143, 47 N. B. 376; Paine v. Par- Cas. 256, 1 Rob. 795, 13 Jur. 1058; sons (1833), 14 Pick. (31 Mass.) 318; Allen v. Maddock (1858), 11 Moore P. Howze v. Mallett (1858), 4 Jones Eg. C C. 427. (57 N. Car.) 194; Powys v. Mansfield "I hereby declare this to be a second (1836), 3 Mylne & C. 359, 377. codicil to my said will" was held to be But a provision for the education a sufficient reference to the first de- of children was held converted into u. tached and unexecuted codicil. Aaron new gift by the republication of the v. Aaron (1849), 3 DeG. & S. 475. See will by codicil after the children were also Gordon v. Reay (1832), 5 Sim. Ch. grown and had been educated by the 274. testator. Bird's Estate (1890), 132 12 Haven v. Foster (1833), 14 Pick. Pa. St 164, 19 AU. 32. (31 Mass.) 534; Drayton v. Rose it McCauley's Estate (1903), 138 (1855), 7 Rich. Eq. (S. Car.) 328, 64 Cal. 432, 546, 71 Pac. 512; Morrow's Am. Dec. 731; Champion, In re (1893), Estate (1903), 204 Pa. St 479, 54 Atl. 1 Ch. 101. 342, though the terms of the bequest is Goodtltle d. Woodhonse v. Mere- to the charity were changed ; Carl's Ap- dlth (1813), 2 Manle & Sel. 5, Abbott peal (1884), 106 Pa. 635. Bat see 878. ante § 828. CHAPTER Xn. BY WHAT LAW WILLS AEE GOVERNED. § 399. Forecast. § 404. As to the Validity of 1. As to Time. the Gifts. A. Laws Passed After the Death § 405- As to Compe t enC e of of the Testator. Testator and Formali- § 400. Legislative Power. tles ln Executing. B. Laws Passed Before the Death of the Testator. S 406 " A * to ^ aw G°™ming §401. Legislative Power. Revocation. 8 402. The Presumption of In- § 407 - As to Eepublication. tention. 2. As to Place. § 403. As to the Interpreta- a tion of the Language § 408 - Keal Property. of the Will. § 409. As to Personalty. § 399. Forecast. The law when the will is made and when the testator dies may not be the same. The law of the place where the will is made, where the testator dies, and where the property disposed of is situated, may not be the same. By which of these different laws is the will to be governed? The question comes up concern- ing almost every branch of the law of wills; but as the question is to be determined on very much the same rules in each case it is best to treat it by itself rather than in connection with the topics on which it arises. Let us consider the law as to time first, then the law as to place. 1. AS TO TIME. A. Laws Passed After the Death of the Testator. § 400. Legislative Power. As the property passes on the death of the testator, either to his heirs and next of kin by intestate succession, or to the devisees and to the executors in trust for the legatees under the will; and as vested property rights are not permitted to be taken away without compensation and due process of law; it follows of necessity that if the will or any gift in it was invalid when the testator died, no subsequent statute can cure the defect; for that would be taking " 257 § 401 WILLS. 258 the property without due process of law from those in whom it vested on the death of the testator. 1 On the other hand, and for the same reason, if the will was valid, or any gift in it took effect on the death of the testator, the rights of the devisee or legatee cannot be divested by any law passed afterwards, changing the requirements for wills, or for the validity of any gifts by them. 2 And yet, if an estate is put in abeyance by the will, it may be affected by an act passed at any time before it vests, even though enacted after the death of the testator. 4 Likewise, statutes declaring that devisees shall hold in common and not as joint tenants, may apply to wills of testators who died before the act, no right of survivorship having yet vested by the death of the other tenants. 6 Moreover, the legislature may without impairing vested rights change the procedure to be fol- lowed in administering estates, the statute of limitations, and many other matters. 6 B. Laws Passed Before the Death of the Testator. § 401. Legislative Power. There is also no question but that the legislature may change the effect, or the requirements for validity, or even give or take away l. Remington v. Metropolitan Sav. — , 70 S. W. 1068 ; Crawford v. Bank (1893), 76 Md. 546, 25 Atl. 666, Thomas (1899, Ky.), 54 S. W. 197. will not duly executed; Jones v. Rob- 4 McGillis v. McGillis (1898), 154 N. inson (1867), 17 Ohio St. 171; Hart- Y. 532, 49 N. E. 145, sustaining a son v. Elden (1892), 50 N. J. Eq. 522, devise to the children of the testator's 26 Atl. 561, violating the rule against daughter who should survive her, the perpetuities, afterward changed ; White testator dying in 1848, and the daugh- v. Howard (1871), 46 N. T. 144, 167, ter who was an alien's wife dying in charter of donee amended after death 1893, though the statute enabling such of testator to enable it to take ; Peo- children to take by devise was not pie v. Powers (1895), 147 N. T. 104, passed till 1887. 41 N. E. 432, 35 L. R. A. 502, gift The law as to the proportions In void for lndeflnitcness of beneficiaries, which the devisees would take being not aided by statute passed after tes- changed before the gift vested, though tator died; Camp v. Clark (1875), 81% after the death of the testator. It was Pa. St. 235, not well executed ; Al- held that they took according to the ter's Appeal (1871), 67 Pa. St. 341, law at the time of vesting. Van Til- 5 Am. Rep. 433, mistake in executing burgh v. Hollinshead (1861), 1 Mc- wrong paper. See also Gaylor's Ap- Cart. (14 N. J. Eg,.) 32. peal (1875), 43 Conn. 82; Glddings 5 Annable v. Patch (1825), 3 Pick. v. Turgeon (1886), 58 Vt. 106, 4 Atl. (20 Mass.) 360. 711. See also post § 439, notes 54, 58. o 1 Redf. Wills 412 ; Bradenburg 2 Coleman v. O'Leary (1902), — Ky. v. Bardln (1892), 36 S. Car. 197, 15 S. H. 372. 259 BY WHAT LAW WILLS ABE GOVERNED. §402 the power to make a will, at any time before the death of the testator, whether a will had or had not yet been made, without impairing any vested rights of the tes- tator, or of those who would succeed him. T That is assumed in all the cases. The only question is whether the legislature intended to do so. 8 § 402. The Presumption of Intention. The decisions are not in harmony, but it is believed that the rule should be that if a law is passed to abolish a purely technical rule, or is leveled against an abuse, it should be held to apply to every case within the power of the legislature and the fair meaning of the words, thus in- cluding all wills made before the act by testators still living, whether the result would be to make good or to defeat the gift; but that a statute inaugurating some change in public policy ought not to be so applied as to disappoint persons who have had their wills drawn on good legal advice, and have not taken the pains to consult a lawyer every day afterwards till the time of their deaths to know whether the law has been changed. 9 § 403. As to the Interpretation of the Language of the Will. In so far as the meaning of the testator be- comes a question, it is clear that his words should be interpreted according to their effect at the time and place when and where he lived and spoke or wrote, for no man can tell what a word may mean at some future time. 10 But there are a great many rules of construc- tion which are not known to the laymen at all, nor even to well-informed lawyers till they have a case in- volving the question; and many of these rules are drift- wood, broken branches of feudal doctrines, borne down to us on the stream of time, answering no good purpose and causing many accidents; and others are rules not t Hoffman v. Hoffman (1855), 26 o This doctrine finds support In the Ala. 535, 543 ; Fatten v. Patton following cases : Hoffman v. Hoffman (1883), 39 Ohio St. 590; Hamilton (1855), 26 Ala. 535 ; Langley v. Lang- T. Fllnn (1858), 21 Tex. 713. ley (1894), 18 R. I. 618, 80 Atl. 465. 8 See the cases cited In the follow- i» See post, { 433. Ing sections. •§ 404 WILLS. 260 founded on any intention or presumed intention of the testator, but resulting from the failure of the testator to provide for unexpected contingencies, for example the death of a devisee or legatee before him; and then there are other rules of public policy, changed by statute as the public policy changes, for example, the rules as to charitable and superstitious uses, and gifts in mort- main; and then there are rules of convenience or of ad- ministration, which may be overridden by an intention of the testator clearly expressed. In all of these cases it may be a question as to whether a statute passed be- tween the making of the will and the death of the tes- tator shall affect its operation, in the absence of ex- pression in, or contrary to the words of, the will. These are questions on which the courts are not agreed, though some of the conflict is no doubt due to the different terms used in the statutes. It is generally held that wills made before by testators dying after are governed by statutes to avoid lapse, 11 and by statutes providing that general devises shall be presumed to pass all lands owned by the testator at the time of his death, 12 that a fee shall pass unless an intention to give a less estate ap- pears, 13 and that words which formerly gave a fee tail shall pass a fee simple. 14 § 404. As to Validity of Gifts. It is believed that if the object of the gift and the method of disposition are lawful, and the donee competent, when the testator dies, the gift should have effect, though the law at the time the will was executed did not permit such. 15 And it 11 See post, § 677. 713, holding a. will valid as a dispo- 12 See poet, § 526. sition of the testatrix's whole estate 13 See post, § 540. to the exclusion of her children, being 14 Price v. Taylor (1857), 28 Pa. permitted by the law at the time of St. 95, 70 Am. Dec. 105. her death, though not allowed by the 15 Kopmeier's Will (1902), 113 Wis. law at the time the will was executed. 233, 89 N. W. 134, holding a devise Henderson v. Ryan (1864), 27 Tex. suspending the power of alienation for 670, sustaining a devise made by a twenty-one years valid, being per- man before the repeal of the forced united by the law at the death of the heirship law. testator, though not allowed at the Bridger, In re (1894), 1 Ch. D. 297, time the will was made. C. A., holding that an act increasing Hamilton v. Flinn (1858), 21 Tex. the amount that a testator could give 261 BY WHAT LAW WILLS ABE GOVERNED. §405 has been held in England and a few of our states, that a gift which did not violate any law existing at the time the will was made, should be sustained, though a law forbidding such gifts was enacted before the death of the testator. 16 But the last proposition is not generally agreed to in America. 17 § 405. As to Competence of Testator and Formalities in Executing. On this question the decisions are in conflict, some courts holding that the validity of the will depends on compliance with the law at the time of executing it, 18 others that its validity depends on compliance with the law at the time of the death of the testator; 19 and in Alabama that it is valid if executed to eharitable uses operated on a will made before the passage of the act, though the will read "such part of my residuary trust estate which by law may be given for charitable uses." 10 Taylor v. Mitchell (1868), 57 Pa. St. 209, sustaining a devise to a church, executed as required at the date of the will, but not witnessed as required by the law at the death of the testator. Ashburnham v. Bradshaw (1740), 7 Mod. 239, 2 Atkins 36, a leading case by Lord Hardwlck, holding a devise to a charitable use valid, be- cause the will was made before the passage of the mortmain act, though the testator died afterward. Attorney Gen. v. Andrews (1749), 1 Ves. Sr. 225, holding a devise to a charity valid because the will was executed before, though the testator died after a statute of mortmain took effect, invalidating such gifts. Attorney Gen .v. Heartwell (1764), Ambler 451, holding a devise before the statute in mortmain valid, though the testator executed a codicil confirm- ing the will after the statute. Attorney Gen. v. Downing (1766), Dickens 414, Ambler 550, Wilmot's notes 1, 35, holding a devise for the erection of a college valid though the testator died thirteen years after the mortmain act took effect, the will hav- ing been executed before the act. 17 Blackbourn v. Tucker (1895), 72 Miss. 735, 17 So. 737, holding a gift violating the constitutional provision as to gifts to charities void, though the will was made before the consti- tution took effect, the testator having died afterward. Wakefield v. Phelps (1858), 37 N. Hamp. 295, a devise by a married woman to her husband, declared invalid by law passed after the will was made but before the death of the testatrix. DePeyster v. Clendlning (1840), 8 Paige Ch. (N. T.) 295, holding a devise void for violating the statute against perpetuities passed after the will was made. Dodge v. Williams (1879), 46 Wis. 70, 106, 50 N. W. 1103. 18 Connecticut — Lane's Appeal (1889), 57 Conn. 182, 17 Atl. 926, 14 Am. St. Rep. 94. North Carolina — Battle v. Speight (1848), 9 Ired. L. (31 N. Car.) 288, arguendo. Pennsylvania — Packer v. Packer (1897), 179 Pa. St. 580, 36 Atl. 344, 57 Am. St. Rep. 615. Vermont — Glddings v. Turgeon (1886), 58 Vt. 106, 4 Atl. 711. 19 California — Learned's Estate (1886), 70 Cal. 140, 11 Pac. 587. Georgia — Hargroves v. Redd (1871), 43 Ga. 142. New Hampshire — Wakefield v. Phelps (1858), 37 N. Hamp. 295. New York — Lawrence v. Hebbard (1850), 1 Brad. Sur. (N. Y.) 252. Ohio — McCune v. House (1837), 8 Ohio, 144, 31 Am. Dec. 438, Abbott p. 345. 405 WILLS. 262 in compliance with the requirements at either time. 20 Under either of these views it would seem clear that a will complying with the law when it was made and when the testator died is not invalidated by conflicting with a statute enacted after the will was made and becoming obsolete before the death of the testator. 21 On the ground that the validity depends on compliance with the law existing at the time the will was made, it has been held that a will not executed according to that law is invalid, though the manner of executing it com- plied with all the requirements of the law as it existed at the death of the testator; 22 that a will executed accord- ing to the requirements of the law at the time it was made is valid though not according to the law at the death of the testator; 23 and that a will made by a mar- ried woman was void, because the law when the will was made did not permit married women to make wills, though changed before her death. 24 On the other hand, Rhode Island — Langley v. Langley (1894), 18 R. I. 618, SO Atl. 465. South Carolina — B Icock'a Will (1826), 4 McCord 39, 17 Am. Dee. 703. Texas — Hamilton v. Fllnn (1858), 21 Tex. 713. 20 Hoffman v. Hoffman (1855), 26 Ala. 535; Powell v. Powell (1857), 30 Ala. 697. See also Lawrence v. Hebbard (1850), 1 Brad. Snr. (N. Y.) 252. 21 Hargroves v. Redd (1871), 43 Ga. 142, following Redd v. Hargroves (1869), 40 Ga. 18. 22 Lane's Appeal (1889), 57 Conn. 182, 17 Atl. 926, 14 Am. St. Rep. 94, holding a will signed and witnessed as required by the law existing at the death of the testatrix void, because the witnesses did not sign In the presence of each other as required by the law at the time the will was made. Packer T. Packer (1897), 179 Pa. St. 580, 36 Atl. 344, 57 Am. St. Rep. 615, an olo- graphic will Invalid for want of wit- nesses, thongh the requirement for witnesses to such wills was dispensed with by a statnte passed afterward before the testatrix died. 28 Powell v. Powell (1857), 30 Ala. 697, sustaining a will of personalty executed In compliance with the law at the time when it was made, thongh without two witnesses as required by the law at the death of the testator. Taylor v. Mitchell (1868), 57 Pa. St 209, sustaining a will signed by but one witness, though a law was passed after the will was executed and before the death of the testator, requiring two witnesses to wills making gifts to charitable corporations, as this one did. Murrey v. Murrey (1837), 6 Watts (Pa.) 353, holding that the will would have been sufficiently executed according to the law at the date of the will, if complete intention had ap- peared. Gaylor's Appeal (1875), 43 Conn. 82, holding a will well executed though the witnesses did not subscribe in the presence of each other as re- quired by the statute at the time of the probate, because that was not required by the law existing at the time the will was made. 24 Kurtz v. Saylor (1852), 20 Pa. St. (8 Harris) 205 ; Burkett v. Whltte- more (1892)), 36 8. Car. 428, 15 S. El. 616; Mitchell v. Klmbrough (1897), 98 Tenn. 535, 41 S. W. 993. It was well established before the 263 BY WHAT LAW WILLS ABE GOVERNED. §406 on the ground that the validity depends on compliance with the law at the death of the testator it has been held that a will executed according to that law was valid, though not complying with the law existing when the will was made; 26 that a will is not valid which does not comply with the requirements of the law existing at the time of the death of the testator, though it complied with the law existing at the time it was made and would have been valid if the testator had died then; 26 and that if a testator changes his domicile after making his will of personalty its validity is tested by the law of his domicile at the time of his death, not by the law of the place where he lived when he made it. 27 § 406. As to Law Governing Revocation. So far as yet adjudicated the decisions are in harmony to the passage of the married women's acts, that a will made by a feme covert, who had no power to make such a will, did not become valid by her surviving her husband and preserving the will- See ante { 148. In analogy to this rule It was re- cently held in Kentucky that a judg- ment of a court empowering a woman to trade in her own name and dispose of her property by will, did not vali- date a will previously made by her and kept and frequently mentioned by her as her will till her death. Gregory v. Dates (1892), 92 Ky. 532, 18 S. W. 231. 25 Hoffman v. Hoffman (1855), 26 Ala. 535, holding a devise with two witnesses, as required at the death of the testator valid, though the law when the will was executed required three. Learned's Estate (1886), 70 Cal. 140, 11 Pac. 587, sustaining an olographic will without witnesses, though the statute permitting such wills was not passed till after the will was made. Langley v. Langley (1894), 18 K. I. 618, 30 Atl. 465, an excellent and discriminating opinion, holding a devise with two witnesses as required at the death of the testator valid, though three were required by the law at the time the will was made. Lawrence v. Hebbard (1850), 1 Brad. Sur. (N. T.) 252, holding a devise well executed and valid, being sub- scribed by two witnesses as required by the law existing at the death of the testator, though three were required by the law at the time the will was made. 26 Sutton v. Chenault (1855), 18 Ga. 1, holding a will of personalty sub- scribed by only one witness void, be- cause a law was passed between the making of the will and the death of the testator requiring two. Elcock's Will (1826), 4 McCord (S. Car.) 89, 17 Am. Dec. 703, holding a will void for want of three subscribing wit- nesses as required by the law existing at the death of the testator, though cot required by the law existing when the will was executed. 27Lowry v. Bradley (1842), 1 Speers Eq. (S. Car.) 1, 39 Am. Dec. 142 ; McCune v. House (1837), 8 Ohio 144, 31 Am. Dec. 438; Nat v. Coons (1847), 10 Mo. 543, holding a will void for want of due execution according to the law of the domicile at death, though a statute of the state provided that a will executed according to the law of the testator's domicile shall be valid here; Dupny v. Wurtz (1873), 53 N. Y. 556, following Moultrie v. Hunt (1861), 23 N. Y. 394. But Bee Carey's Appeal (1874) 75 Pa. St. 201. § 407 WILLS. 264 effect that statutes declaring wills revoked by the sub- sequent marriage or birth of issue to the testator do not apply to cases in which both the making of the will and the marriage or birth preceded the enacting of the statute, 28 and do apply to cases in which the marriage or birth was after the act was passed, though the will was made before. 29 But one strange decision is found to the effect that a will made by a single woman is revoked by her marriage after a statute had been passed permitting married women to make wills, be- cause the statute was not retrospective. 30 § 407. As to Republication. The earliest case I have discovered touching the effect of statutes, on wills made before the statute, is reported in Roll's Abr. 617, as fol- lows: "If a man had devised a use before the statute of 27 Henry "Vlii, which devise was revoked by the statute, because the use was transferred to the posses- sion, yet, if after the statute of 32 Henry "VTEI concern- ing devises, he had allowed the same without writing, this had been a good publication," though the statute last mentioned required devises to be in writing. The same has been held in some of our states, as to parol re- publication of previous wills after the statute was 28Goodsell's Appeal (1887), 55 It took effect, revoke the will and Conn. 171, 10 Atl. 557, holding that a codicil? * * » The general rule is will made by a single man was not that statutes are to be construed as avoided by a statute passed after his prospective in their operation." Held marriage but before his death provid- that the will was not revoked. Swan ing that a will should be deemed re- v. Sayles (1896), 165 Mass. 177, 42 voked by the marriage of the testator. N. B. 570. Tuller, In re (1875), 79 111. 99, 22 29 Rowe v. Eowe (1903), Iowa Am. Eep. 164, holding the will of a — , 94 N. W. 258, birth of a child, woman made before marriage, and who In Ingersoll v. Hopkins (1898), 170 married before the act was passed, Mass. 401, 49 N. B. 623, 40 L. R. A. was not revoked by the statute passed 191, it was held that a will made before her death providing that any before the passage of the statute pro- will made by man or woman shall be viding that marriage of a man should deemed revoked by subsequent mar- be deemed to revoke his previous will, riage. "It is apparent that the will was governed by the statute, because and codicil were not immediately re- the marriage occurred after the stat- voked by the marriage, because by the ute took effect. Same point : Kurtz v. law as it was at that time, marriage Saylor (1852), 20 Pa. St. 205. did not revokethe will of a man, and 30 Smith v. Clemson (1880, Del. the statute was not then in existence. Supr. Ct), 6 Hous. 171. Did the statute of Its own force, when 265 BY WHAT LAW WILLS ARE GOVERNED. 408 passed requiring wills to be written, signed, and wit- nessed. 31 2. AS TO PLACE.32 §408. Real Property. The law of the place where the land is situated governs in all respects, as to the formal requisites to be observed in executing the will or revoking it, the capacity of the testator and devisees,, the rule against perpetuities, the rule in Shelley's case, as to whether a life estate or a fee shall pass by gift without words of perpetuity, as to whether the devisees take jointly or in common, as to whether after-acquired lands pass, and as to all other such rules. 33 § 409. As to Personalty. The law of the testator's domicile determines all questions as to the will so far 3ljack v. Shoenberger (1853), 22 Pa. St. (10 Harris) 416; Gable v. Daub (1861), 40 Pa. St. 217, 224, ar- guendo. 32 See notes 2 Am. Dec. 454 ; 48 L. R. A. 130-152; 5 Pro. R. A. 206. See also ante § 201. 33 Law of Situs governs. United States — DeVaughn v. Hut- chinson (1896), 165 XJ. S. 566, the rule in Shelley's case. Connecticut — Clarke's Appeal (1898), 70 Conn. 195, 39 Atl. 155, equitable conversion. Florida — Crolly v. Clark (1884), 20 Fla. 849, number of subscribing wit- nesses to will ; Frazier v. Boggs (1896), 37 Fla. 307, 317, 20 So. 245, effect in passing after acquired land. Georgia — Knight v. Wheedon (1898), 104 Ga. 309, 30 S. B. 794, insufficient execution of will of realty and personalty. Illinois — Harrison v. Weatherby (1899), 180 111. 418, 435, 54 N. B. 237, not due execution of will. Indiana — Evansville Ice & C. S. Co. v. Winsor (1897), 148 Ind. 682, 48 N. E. 592, capacity of testator and forms to be observed in executing and re- voking a will of realty and personalty. j owa — Lynch v. Miller (1880), 54 Iowa 516, 6 N. W. 740, Insufficient exe- cution of will. Mississippi — Wynne v. Wynne (1852), 23 Miss. 251, 57 Am. Dec. 139, after acquired land passing. New Jersey — Lindley v. O'Reilly (1888), 50 N. J. L. 324, 15 Atl. 375, 1 L. R. A. 79, 7 Am. St. Rep. 802, Rood Attach. Garnish. J. & E. 65, due execution. New York — Hobson v. Hale (1884), 95 N. Y. 588, violating the rule against perpetuities. North Dakota — Penfleld v. Tower (1890), 1 N. Dak. 216, 46 N. W. 413, rule against perpetuities, and equitable conversion. O Mo— Bailey v. Bailey (1837), 8 Ohio 239; Jones v. Robinson (1867), 17 Ohio St. 171, due execution. Oregon — Clayson's Will (1893), 24 Ore. 542, 34 Pac. 358, due execution of will. Pennsylvania — P e p p e r ' s Estate (1892), 148 Pa. St. 5, 23 Atl. 1039, due execution of will, and relation of will and codicil ; Flannery's Will (1855), 24 Pa. St. 502, due execution. Tennessee — C arpenter v. Bell (1895), 96 Tenn. 294, 34 S. W. 209, capacity of testatrix as married woman to make devise. Washington — Stewart's B s t a t e (1901), 26 Wash. 32, 66 Pac. 148, validity of a charitable use. Wisconsin — Ford v. Ford (1887), 70 Wis. 19, 33 N. W. 188, 5 Am. St. Rep. 117, Mechem 107, execution and con- struction. And see note 48 L. R. A. 138. §409 WILLS. 266 as personalty is concerned— the testator's capacity, the formality of executing and revoking, the legality of the dispositions, the construction and effect of the pro- visions. 34 If complying with the law of his domicile it 3* Law of Domicile governs. United States — Jones v. Haber- sham (1882), 107 XT. S. 174, 179, as to the validity of the bequest. California — W h 1 1 n e y v. Dodge (1894), 105 Cal. 192, 38 Pac. 636, validity of trust violating rule against perpetuities. Georgia — Knight v. Wheedon (1898), 104 Ga. 309, 30 S. E. 794. Indiana — Evansville Ice and C. S. Co. v. Winsor (1897), 148 Ind. 682, 48 N. E. 592. Kentucky — H ussey v. Sargent (1903), 75 S. W. 211. Maryland — Congregational C. B. S. V. Everett (1897), 85 Md. 79, 36 Atl. 654, 35 L. R. A. 693, validity of the gift. Massachusetts — Fellows v. Miner (1876), 119 Mass. 541, as to the va- lidity of the gift ; Healy v. Read (1891), 1»3 Mass. 197, 26 N. E. 404, 10 Ii. R. A. 766, gift charitable use of a larger part of the estate than the statute of the state in which the donee was incorporated would permit. Mississippi — Montgomery v. Minikin (1845), 5 Sm. & M. 151, 43 Am. Dec. 507, power to disinherit heirs. New York — Cross v. D. S. Trust Co. (1892), 131 N. Y. 330, 30 N. E. 125, 27 Am. St. Rep. 597, 15 L. R. A. 606, validity of trust, rule against perpetui- ties; Moultrie v. Hunt (1861), 23 N. Y. 394, due execution ; New York Life Ins. Co. V. Vlele (1899), 161 N. Y. 11, 55 N. E. 311, 5 Pro. R. A. 197, right of adopted child to take. North Carolina — Sorrey v. Bright (1835), 1 D. & B. Eq. 113, 28 Am. Dec. 584, validity of bequest. North Dakota — Penfleld v. Tower (1890), 1 N. Dak. 216, 46 N. W. 413, equitable conversion, and the rale against perpetuities. Ohio — Manuel v. Manuel (1862), 13 Ohio St. 458. Pennsylvania — Desesbats v. Berquier (1808), 1 Binney 336, 2 Am. Dec. 448, a leading case, as to execution, and see note; Flannery's Will (1865), 24 Pa. St. 5Q2, sufficient execution; Price's Appeal (1895), 199 Pa. St 294, 32 Atl. 455. Rhode Island — Cotting v. DeSartiges (1892), 17 R. I. 668, 24 Atl. 530, 16 L. R. A. 367, construction of will exe- cuting power given by will. South Carolina — Lowry v. Bradley (1842), 1 Speers Eq. 1, 39 Am. Dec. 142, due execution. Virginia — Boiling v. Boiling (1891), 88 Va. 524, 14 S. E. 67, bequest in lieu of dower, construction. Wisconsin — Ford v. Ford (1887), 70 Wis. 19, 33 N. W. 188, 5 Am. St. Rep. 117, Mechem 107, construction. Same rule for all questions. "Should our legislature deem it for the public good to repeal the statute relat- ing to wills, and to provide that all personalty should, upon the death of the owner, pass under the laws of In- testacy, a disposition by will of per- sonal property, actually within the territory of the state, but owned by a person domiciled in another state, would still be valid, providing It was valid by the law which governed the owner. When it is urged that we are bound by foreign law as to all the formal requisites of a will, as a testa- mentary instrument, the capacity of the testator to make it, and its legal construction, meaning, and effect, and not bound by such law, with respect to the particular bequests by which the testatrix has distributed her prop- erty among her heirs and next of kin, it is not perceived that such a dis- tinction has any sound reason or prin- ciple to rest upon." Per O'Brien, In giving the opinion of the court In Cross v. U. S. Trust Co. (1892), 131 N. Y. 330, 341, 30 N. E. 125, 15 L. R. A. 606, 27 Am. St. Rep. 597, sustain- ing a bequest by a testator domiciled in Rhode Island, complying with the law of that state, of property in New York, to a New York corporation, sub- ject to trusts to be administered in New York, and contravening the New York statute against perpetuities. Apprbved in Whitney v. Dodge (1894), 105 Cal. 192, 38 Pac. 636. 267 BY WHAT LAW WILLS ARE GOVEENED. §409 will be allowed even in the state where he made it without complying with the formalities required by the laws of that state. If not complying with the law of his domicile it cannot be sustained, though executed in compliance with the law of the state where made and offered for probate, and where the property is situated. 35 But a donee under a power of appointment does not take from the one exercising the power. He takes from the donor of the power; and therefore, the appointment by will in exercise of a power is valid if it complies with the law governing the instrument giving the power, though not well executed as a will under the law of the testator's domicile. Ita validity and effect are gov- erned by the law governing the instrument conferring the power. 36 35 Flannery's Will (1855), 24 Pa. Bingham's Appeal (1870), 64 Pa. St. St. 502; Desesbats v. Berquier (1808), 345; Cotting T. DeSartiges (1892), 17 1 Bin. (Pa.) 336, 2 Am. Dec. 448; R. I. 668, 24 Atl. 530, 16 L. R. A. 367 ; Manuel y. Manuel (1862), 13 Ohio St Lane v. Lane (1903), — Del. — , 55 458. Atl. 185; Megret, In re (1901), 1 Ch. 36 Sewall v. Wilmer (1882), 132 D. 547, 70 L. J. Ch. 547, 84 L. T. 192; Mass. 131; OliTet v. Whitworth Huber's Goods (1896), L. R. Prob. (1896), 82 Md. 258, 33 Atl. 723; (Ens.) 209. CHAPTER Xm. CONSTRUCTION AND EFFECT OF WILLS. General Outline of this Branch of the Law. § 410. Plan of Treatment. § 411. What Matters Deter- mine the Effect of Wills. § 412. Imperative Require- ments of Law. § 413. Imperative Require- ments of the Testator. § 414. Eules Governing When Intention is Doubtful or Not Exprssse'd. § 415. Rules of Construction Reduced to Formula. § 415a. Causes and Objects of Doubt. § 416. Value of Precedents and Rules. § 417. Scope and Methods of Construction. 1 418. Forecast. General Principles of Construction. A. Rules as to the" Will as a Whole and the Relation of the Parts. § 419. The Intention is to be Gathered from the Whole Will. § 420. The Main Purpose and General Intent. §421. §422. §423. §424. Affecting the" Meaning of Words. As Affecting the Plan of Disposition. The Will and All Its Codicils Are to Be Read. A Construction Should Be Adopted Which Will Give Effect to Every Clause. § 425. If Two Clauses Are Ab- solutely Irreconcilable*. § 426. A Construction Leading to a Legal, Just, and Sensible Result. § 427. A Construction in which the Language is Grammatical is Pre- ferred. B. Rules as to Relation Between the Will and Extrinsic Matters. § 428. The Language is to Be Taken in Testator's Situation and Sur- roundings. § 429. The Testator is Gen- erally Presumed to Re- fer to the Situation at the Time of His Death. § 430. That Construction Should Be Adopted Which Disposes of the Property Most Nearly in Conformity with the Statutes. C. Interpretation of Words in General. § 431. Words Are Presumed to Be Used in Their Plain Ordinary Sens*. § 432. Technical Term* Are to Be Understood in Their Technical Sense. § 433. All Words Are to Be Understood According to Their Meaning at the Time and Plaee of Writing Them. § 434. Words Occurring More Than Once. § 435. Plan of Treatment. 1. GENERAL OUTLINE OF THIS BRANCH OF THE LAW. §410. Plan of Treatment. In our consideration of the law of wills we have thus far examined the nature and kinds of wills, what they may dispose of, who may make them, who may take by them, the formalities 268 269 CONSTEUCTION AND EFFECT OF WILLS. § 4H which must be observed in making them, the same as to revoking them, and lastly, as to re-executing them. As the will must be probated before the courts can in- quire of its meaning and effect, some might deem it more logical to consider questions of probate before inquiring as to the construction and effect. Construc- tion is taken up at this point so as to conclude our con- sideration of the substantive law before taking up the matters of mere administration. § 411. What Matters Determine the Effect of Wills. The legal effect to be given to wills depends on four matters: 1, the rules of law which no expression of intention by the testator can avoid; 2, the intention of the testator as clearly expressed in the will; 3, the rules of law which govern in the absence of any intention to the contrary appearing in the will, or when there is a question as to the intention expressed; and, 4, the in- tention of the testator which the rules of law permit to be shown by evidence outside of the will. Of these in the order named. §412. Imperative Requirements of Law. Some rules have been irrevocably established by the policy of the law, which cannot be exceeded or transgressed by any intention of the testator, be it never so clearly expressed. As examples may be named those rules which establish the right of the owner of property to sell it, which make it liable for the payment of his debts and which make void all future limitations of estates which might vest after the expiration of lives in being and twenty-one years. The rule in Shelley's Case is another common example of what we are discussing. If a testator attempts to give a remainder in fee to the heirs of one to whom he has given a life estate in the same property by the same instrument, this rule of law, where not abolished by statute, gives to the tenant for life the remainder which the testator intended to give to the heirs, so that the title to the remainder may not § 413 WILLS. 270 be in abeyance during the continuance of the life estate. If a testator declares clearly in the will that the devisee shall not have power to sell the property given him, or that it shall not be liable to be taken for the payment of his debts, the devisee may nevertheless sell, and the property will be liable to pay his debts. Any extended consideration of these rules would be foreign to our subject. It is enough to point out that there are rules of law which no expression of intention by the testator can over-ride. § 413. Imperative Requirements of the Testator. It has been declared a fundamental maxim, the first and greatest rule, the sovereign guide, the polar star, in giving effect to a will, that the intention of the testator as expressed in the will is to be fully and punctually observed so far as it is consistent with the established rules of law. 1 If by the use of plain and unambiguous language, he has made his meaning clear and certain, his will expounds itself, and all the court can do is to give it effect. All doubts must be resolved in favor of his having meant just what he said. 2 The courts have no right in such cases to resort to a fanciful or conjec- tural construction, grounded on the circumstances of his property, his family, or himself. His purpose may seem unjust, unnatural, or absurd to others; yet to re- fuse to execute it is not to construe his will, but to make another. 3 His plain intention must be given effect though he has misused or omitted words, or made errors in spelling, punctuation, or grammatical form. 4 In so 1 Hardenberg v. Bay (1893), 151 U. Bingel v. Tolz (1892), 142 III. 214, S. 112, 126; Perrin v. Blake (1771), 31 N. E. 13, 34 Am. St. Rep. 64; Harg. L. Trac. 489, 10 Eng. Rul. Cas. Young's Estate (1899), 123 Cal. 337, 689, Thompson Cas. 1 ; McCamant T. 344, 55 Pac. 1011. Nuckolls (1888), 85 Va. 331, 337, 12 s Marshall v. Hadley (1892), 50 N. S. E. 160 ; and see note 8 L. R. A. 740. J. Eq. 547, 25 Atl. 325 ; Lewis's Es- 2 Page v. Marston (1900), 94 Me. tate (1893), 152 Pa. St. 477, 25 Atl. 342, 47 Atl. 529; Adair v. Adair 878. (1902), — N. Dak. — , 90 N. W. 804. 4 Bennett's Estate (1901), 134 Cal. The courts seek not the secret In- 320, 66 Pac. 370; Rose v. Hale (1900), tentlon In the mind ol the testator, 185 111. 378, 56 N. B. 1073, 76 Am. St. but the one expressed by the words Rep. 40, 5 Pro. R. A. 530 ; Dewey v. of the will as applied to his situation. Morgan (1836), 18 Pick. (35 Mass.) 271 CONSTEUCTION AND EFFECT OF WILLS. § 414 far then as the intention is clearly expressed, there is no room for resort to legal rules of construction. 5 §414. Rules Governing When Intention is Doubtful or not Expressed. Two classes of rules apply in the absence of intention expressed: 1, rules of law and administration not based on public policy, which the testator might therefore have put aside, as that personal property shall be first sold to pay debts and that general legacies abate before specific ones; 2, presumptions of law as to intention when not expressed, or when ex- pressed in doubtful terms. § 415. Rules of Construction Reduced to Formula. It is only with the second of the above named rules that we are concerned in this chapter. These presumptions are commonly called rules of construction. Every rule of construction may be reduced to the following formula : if the meaning might be either x or y, the law presumes that the testator meant x. In each of these rules this proviso is implied, namely, unless a contrary intention appears. For example, it is presumed that a gift for the benefit of the children of a person was intended for the benefit of the person's legitimate children, unless a contrary intention appears. 6 § 415a. Causes and Objects of Doubt. Doubts may arise from misstatement, contradiction, ambiguity, omis- sion, or repetition. These may occur separately or to- gether. They may appear on the face of the will or only when attempt is made to apply it to the persons and property. The failure to express the intention clearly may be caused by a mistake of the testator, his want of skill in expression, the limitations of all writ- 295; Covenhoven v. Shuler (1830), 2 5 Still v. Spear (1863), 45 Pa. St. Paige Ch. (N. Y.) 122, 21 Am. Dec. 168; James, Matter of (1895), 146 N. 73, Mechem 99; Pond v. Bergh (1843), Y. 78, 100, 40 N. B. 876. 10 Paige Ch. (N. Y.) 140, 152; Furbee 8 Gill v. Shelley (1831), 2 Russ. & v. Furbee (1901), 49 W. Va. 191, 38 M. 336, Abbott 693; Elliott v. Elliott S. E. 511; Black v. Herring (1894), (1889), 117 Ind. 880, 20 N. H. 264, 10 79 Md. 146, 28 Atl. 1063; Inglls v. Am. St. Rep. 54. Sailor's Snng Harbour (1830), 3 Pet. (28 U. S.) 99, 117. §416 WILLS. 272 ten language, or quite as often as otherwise from the matter never coming to his attention at all, perhaps arising from unexpected contingencies, for the endless variety of which no forethought and imagination could provide. The subjects of the doubt may be, 1, the per- sons and objects benefited; 2, the property given; 3, the nature of the estates and interests conferred; or, 4, the conditions required to exist to make the provision operative or to defeat it. §416. Value of Precedents and Rules. "Wills and the construction of them do more perplex a man than any other learning, ' ' said Lord Coke, 7 adding that these surpass the science of law, and history confirms his remark. On no other branch of the law are decided cases of so little value as precedents. Half a century ago Judge Story said: "The cases almost overwhelm us at every step of our progress [How much more so now!]; and any attempt even to classify them, much less to harmonize them, is full of the most perilous labor." 8 "Very few classes of cases," said Justice Miller, "are more frequent or more perplexing in the courts than the construction of wills. If rules of construction laid down by the courts of the highest character, or the au- thority of adjudged cases, could meet and solve these difficulties, there would remain no cause of complaint on that subject, for such is the number and variety of these opinions that every form of expression would seem to be met. * * * Unfortunately, however, these au- thorities are often conflicting, or arise out of forms of expression so near alike, yet varying in such minute shades of meaning, and are decided on facts and cir- cumstances differing in points, the pertinency of which are so difficult in their application to other cases, that the mind is bewildered and in danger of being misled. To these considerations it is to be added that of all legal instruments, wills are the most inartificial, the 7 Roberts v. Roberts (1614), 2 8 Sisson v. Seabury (1882), 1 Sumn. Bulst. 123, 130. 235, Fed. Cas. No. 12,913. 273 CONSTRUCTION AND EFFECT OF. WILLS. § 417 least to be governed in their construction by the settled use of technical legal terms, the will itself being often the production of persons not only ignorant of law but of the correct use of the language in which it is written. Under this state of the science of the law, as applicable to the construction of wills, it may well be doubted if any other source of enlightenment in the construction of a will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself." 9 § 417. Scope and Methods of Construction. Distinc- tions have been made between mere definition, for which resort to a dictionary would answer; and construction, or the comparison of the parts with each other and with extrinsic facts, to learn how the primary meaning is modified by the context, or- to discover a meaning in- sinuated but not expressed. The distinction is rather fanciful than practical; because all are inseparably in- volved in nearly every contest. The practical case is a dispute as to the meaning or effect of a will. No con- fusion or obscurity will deter the court from attempt- ing to solve the mystery. But if the meaning does not appear after reading the whole in the light of the sur- rounding facts, nor by applying any rule of construc- 9 Clarke v. Boorman (18T3), 18 llgible." McSherry, C. J., in Pratt v. Wall. (85 TJ. S.) 493, 502. Sheppard (1898), 88 Md. 610, 618, 42 Further to Same Effect. "If with- Atl. 51. See also Folger v. Tllcomb out first finding from the four corners (1898), 92 Me. 184, 42 Atl. 360; Went- of the Instrument what the testator's worth v. Fernald (1898), 92 Me. 282, purpose or Intention really was, we 42 Atl. 550; Brasher v. Marsh (1864), turn for its ascertainment to the multl- 15 Ohio St. 103 ; Thurber v. Battey tude of adjudicated cases wherein the (1895), 105 Mich. 718, 63 N. W. 995; words he has used have been given a Le Breton v. Cook (1895), 107 Cal. meaning in other wills, his design may 410, 40 Pac. 552 ; Jodrell, In re be easily frustrated; and though per- (1890), 44 Ch. D. 590, 605, 59 L. J. fectly plain in itself, might and most Ch. 538, 63 L. T. 15, 38 W. R. 267 probably would be so shrouded in — A. C. obscurity as to be hopelessly nnintel- 18 § 418 WILLS. 274 tion, the court cannot resort to surmise. As to so much of the will as is inexplicable its fate is inevitable. The rest will be given effect. 10 §418. Forecast. Let us consider, first, the general principles of construction, and, second, the special rules as to particular words and expressions. Under the first head let us consider: 1, the rules as to intrinsic mat- ters, as to the will as a whole and the relation of the parts; 2, the rules as to extrinsic matters, the relations between the will and extrinsic matters; and, 3, general rules as to the interpretation of words. 2. GENEEAL PRINCIPLES OP CONSTRUCTION. A. Rules as to the Will as a Whole and the Relation or the Parts. § 419. The intention is to be gathered from the whole will, including codicils if any, and not from detached phrases. This rule is best understood and illustrated by con- sidering the following corollaries to it: § 420. The main purpose and general intent prevail over the particular provision when they cannot be reconciled. § 421. Affecting the Meaning of Words. The mani- fest principal design, though not expressed in terms, will require the court to give a meaning to words and phrases which they would not bear if standing alone; and may even require the will to be read as if words were omitted, inserted, or transposed. 11 It will con- lOWootton v. Redd (1855), 12 141, 33 Atl. 591; Graham v. Graham Gratt. (Va.) 196, 205; Flynn v. Hoi- (1883), 23 W. Va. 36, 48 Am. Rep. man (1903), — Iowa — , 94 N. W. 364; Watkins v. Snadon (1892), 93 447; Stephenson, In re (1897), 1 Ch. Ky. 501, 20 S. W. 700, 40 Am. St. Rep. D. 75, 66 L. J. Ch. 93, 75 h. T. 495, 203; Huffman v. Young (1897), 170 45 W. R. 162 — A. C. III. 290, 49 N. E. 570; Allen's Succes- n Boston S. D. & T. Co. v. Coffin Eton (1896), 48 La. An. 1036, 20 So. (1890), 152 Mass. 95, 25 N. E. 30, 193, 55 Am. St. Rep. 295; Thompson 8 L. R. A. 740; Whltcomb v. Rodman v. Young (1866), 25 Md. 450. (1895), 156 111. 116, 40 N. E. 553, A gift over In the case of the death 47 Am. St. Rep. 181, 28 L. R. A. 149, of an only son "during minority or 1 Pro. R. A. 680 ; Roe v. Vingut without a family" was held not to take (1889), 117 N. Y. 204, 22 N. E. 933; effect on the death of the son under Plnney v. Newton (1895), 66 Conn, age but leaving a family, it being ap- 275 CONSTBUCTION AND EFFECT OF WILLS. § 422 trol the effect of a particular clause so as to vest a gift when the words would make it contingent, 12 or leave it contingent when the words would allow it to vest, 13 to pass the whole residue by words suitable to pass per- sonalty only, 14 and to put children of a devisee in his place as to division of the share of another devisee dying without issue. 16 § 422. As Affecting the Plan of Disposition. It has been said under this head to be "an established rule of construction, that if the court can see a general inten- tion, consistent with the rules of law, but the testator has attempted to carry it into effect in a way that is not permitted, the court is to give effect to the general in- tention, though the particular mode shall fail." 16 By aid of the cy pres doctrine this statement is true as to charitable trusts to a limited extent, and it was in this connection that the statements were made. 17 But as a general proposition it is false. Suppose a testator to declare his purpose in making his will to be to make his children equal financially, and therefore he divides his property between them in a certain proportion. The court cannot divide it in any other way to accomplish his purpose if his division does not do so. 18 Suppose he says he makes his will because he wants to fix his property so that his son cannot squander it, and there- fore that he gives his son an estate for life only and the remainder to his son's heirs. The court cannot give effect to his purpose by a disposition which would not parent that the testator's principal ob- 16 Inglis v. Sailor's Snug Harbour ject was to provide for the son and (1830), 3 Pet. (28 U. S.) 99, 117; ■whatever family he might have. Phelps Pell v. Mercer (1884), 14 R. I. 412, v. Bates (1886), 54 Conn. 11, 5 Atl. 430. 301, 1 Am. St. Eep. 92. it See Jackson v. Phillips (1867), i2Goebel v. Wolf (1889), 113 N. T. 14 Allen (96 Mass.) 539, Hutchins 405, 21 N. B. 388, 10 Am. St. Rep. 464. Cas. 89, H. & B. Cas. 402 ; Fair's Es- i3Phayer v. Kennedy (1897), 169 tate (1901), 132 Cal. 523, 60 Pac. 442, 111. 380, 48 N. E. 828. 64 Pac. 1000, 84 Am. St. Rep. 70, 6 14 Given v. Hilton (1877), 95 U. S. Pro. R. A. 595. 591. 18 Terry v. Smith (1887), 42 N. J. 15-BaIch v. Pickering (1891), 164 Bq. 504, 510, 8 Atl. 886. Mass. 363, 28 N. E. 293, 14 L. R. A. 125. § 423 WILLS. 276 fall within the rule in Shelley's Case. The expressed in- tent can never be varied under the guise of correction because the testator misapprehended the legal effect of the provision he made. That would not be construing the testator's will, but making another. 19 § 423. The will and all its codicils are to be read as one instrument, and the provisions of the former no fur- ther modified than the terms or plain intention of the latter positively require. 20 When the terms of a will clearly give an estate, the words of the codicil must manifest an intent equally clear to revoke it. 21 § 424. A construction should be adopted which will give effect to every clause and meaning to every word if it can be done without violating the manifest intent or general design. 22 Yet the object is not to put meaning into the words, but to get the testator's meaning out. 23 Enumeration restricts, exception extends, the scope of general expressions. Exception of persons not falling within the words extends the meaning of them to include all other persons of the class to which the excepted per- son belonged. 1 § 425. If two clauses are absolutely irreconcilable, the last prevails. 24 i9Perrin v. Blake (1771), Harg. Am. St. Rep. 163, Mechem 104; Gil- Law. Tr. 489, 10 Eng. Bui. Cas. 689, mor's Estate (1893), 154 Pa. St. 523, Thompson 1; Young's Estate (1899), 26 Atl. 614, 35 Am. St. Rep. 855; 123 Cal. 337, 344, 55 Pae. 1011. Heidlebaugh v. Wagner (1887), 72 20 See ante § 336. Iowa 601, 34 N. W. 439 ; Allen's Suc- 21 Sturgls v. Work (1889), 122 Ind. cession (1896), 48 La. An. 1036, 20 134, 22 N. E. 996, 17 Am. St. Rep. South. 193, 55 Am. St. Rep. 295; 349; Security Co. v. Snow (1898), 70 Shepard v. Shepard (1887), 60 Vt. 109, Conn. 288, 39 Atl. 153, 66 Am. St. 14 Atl. 536; Luscombe's Will (1901), Rep. 107; Hard v. Ashley (1890), 117 109 Wis. 186, 85 N. W. 341. N. T. 606, 613, 23 N. E. 177; Hub- 23 Scholl's Will (1898), 100 Wis. bard v. Hubbard (1902), 198 111. 621, 650, 76 N. W. 616. 64 N. E. 1038. But see Hunt's Es- l Crawford's Matter (1889), 113 N. tate (1890), 133 Pa. St. 260, 19 Atl. Y. 366, 377, 21 N. E. 142. See also 548, 19 Am. St. Rep. 640. cases cited post § 493. 22 L'Etourneau v. Henquenet (1891), 24 Armstrong v. Crapo (1887), 72 89 Mich. 428, 50 N. W. 1077, 28 Am. Iowa 604, 34 N. W. 437 ; Ball v. Ball St. Rep. 310; DIcklson v. Dlcklson (1888), 40 La. An. 284, 3 South. 644. (1891), 138 111. 541, 28 N. E. 792, 32 277 CONSTRUCTION AND EFFECT OP WILLS. § 426 This rule is based on the assumption that what the testator wrote last expresses his last wish; but it is a highly artificial assumption, to be applied only as a last resort, when the clauses cannot otherwise be given any effect for incurable uncertainty. When the same property has been given to different persons by different clauses of the same will, several courts have held that there is nothing repugnant, and no occasion to apply this rule. They have held that it is a gift to all, jointly, in common, or in succession, according to the circum- stances. 25 §426. A construction leading to a legal, just, and sensible result is presumed to be correct, as against one leading to an illegal, unnatural, or absurd effect. 26 § 421. A construction in which the language is gram- matical is preferred. 27 B. Rules as to Relation Between the Will and Extrinsic Matters. § 428. The language is to be taken in connection with the testator's situation and surroundings. 28 When the testator wrote the will he was in a certain situation, and spoke with reference to it. Phrases almost meaningless 25Rickner v. Kessler (1891), 138 111. 28 S. E. 172; Roe v. Vingut (1889), 636, 28 N. B. 973; Day v. Wallace 117 N. Y. 204, 22 *N. E. 933; Flynn <1893), 144 111. 256, 33 N. E. 185, v. Holman (1903), — Iowa — , 94 36 Am. St. Rep. 424, Mechem 122; N. W. 447; Holmes v. Walter (1903), Claflin v. Ashton (1880), 128 Mass. — Wis. — , 95 N. W. 380. 441; Covenhoven v. Shuler (1830), 27 Putnam v. American Bib. Soc. 2 Paige Ch. (N. Y.) 122, 21 Am. Dec. (1864), 37 Vt. 271, 278; Hart v. White 73, Mechem 99; McGuire v. Evans (1854), 26 Vt. 260, 268. But see ante (1848), 5 Ired. Eq. (40 N. Car.) 269; § 413. Rogers v. Rogers (1890), 49 N. J. Eq. 28 Colton v. Colton (1887), 127 U. S8, 23 Atl. 125. S. 300, 309, 8 S. Ct. 1164; Elliott v. Contra: Covert v. Sebern (1887), Elliott (1888), 117 Ind. 380, 20 N. E. 73 Iowa, 564, 35 N. W. 636 ; Fraser v. 264, 10 Am. St. Rep. 54 ; Willard v. Boone (1833), 1 Hill. Ch. (S. Car.) Darrah (1902), 168 Mo. 660, 68 S. W. 360, 27 Am. Dec. 422; Holllns v. 1023 ; Yates v. Shern (1901), 84 Minn. Coonan (1850), 9 Gill (Md.) 62. 161, 86 N. W. 1004; Miller v. Potter- ^eQuincy City v. Atty. Gen. (1894), field (1890), 86 Va. 876, 11 S. E. 486, 160 Mass. 431, 35 N: E. 1066 ; Mc- 19 Am. St. Rep. 919 ; Rutter v. Ander- Brfde's Estate (1893), 152 Pa. St 192, son (1900), 48 W. Va. 215, 36 S. E. 25 Atl. 513; James v. Pmden (1862), 357; Gilmor'e Estate (1893), 154 Pa. 14 Ohio St. 251 ; Crozier v. Bray St. 523, 26 Ati. 614, 35 Am. St. Rep. (1890), 120 N. Y. 366, 24 N. E. 712; 855. Moore v. Powell (1897), 95 Va. 258, § 429 WILLS. 278 by themselves, may be full of meaning when applied to the situation, and the setting may alter the meaning entirely. The aim of the court is to put itself as near as possible into the place of the testator, to see things from his point of view. Parol evidence to prove the surroundings is given in every contest. 29 § 429. The testator is generally presumed to refer to the situation at the time of his death. 30 Every testator knows that the execution of his will in no way affects his control of it or his property. His attention is fixed on the day when death shall call him from his earthly possessions and others shall strive for them. The law would decide between them, but out of grace has permitted him to do it. He is now declaring his will as to who shall take what he must then leave. Unless the contrary appears from his words, it must therefore be presumed that he is speaking of that time, of the persons then to take and of the property and estates he may then have. 81 § 430. That construction should be adopted which dis- poses of the property most nearly in conformity with the statutes of descent and distribution. 32 H one construction would give the property to strangers or to distant relations or unequally between 29 As to admissibility and effect of tended It to take effect during life as evidence of facts to modify plain Ian- a gift, deed, or contract. As to this guage Bee Wells, Matter of (1889), 113 see ante §§ 73-76. The question we N. Y. 396, 401. are now considering is this : Of what 30 Cross-references. Time may he- persons, property, estates, etc., was come important in many respects, the testator speaking when he used There may he a question as to whether these words in controversy? the validity of the whole will or some 31 See post §§ 462-480, 523-529 ; and disposition in it depends on the com- see note 2 Pro. R. A. 485. pliance with the law which existed 32 Soper v. Brown (1892), 136 N. when the will was made, or the one T. 244, 32 Am. St. Rep. 731, 32 N. B. existing when the testator died. As 768; Edgerly v. Barker (1891), 66 N to this see ante 55 399-407. There H. 434, 449, 31 Atl. 900, 28 L. R. A. may be a question as to whether the 328; Pendleton v. Larrabee (1892), 62 law permits a will to dispose of lands Conn. 393, 26 Atl. 482 ; Stebbins v. acqu'"td by the testator after he Stebbins (1891), 86 Mich. 474, 49 made it As to this see ante 5 88. N. W. 294 ; Saylor v. Plaine (1869), It may be a question as to whether the 31 Md. 158, 1 Am. Rep. 34 ; Bowker v. disposition was Intended to take effect Bowker (1889), 148 Mass. 198, 19 N. at the death of the disposer, and is B. 213. therefore a will ; or whether he in- 279 CONSTBTJCTION AND EFFECT OF WILLS. § 431 the children, and another would dispose of it as it would go by the statute of descent or distribution, it is but natural to suppose that the later is the true construc- tion. The statutes are only an expression of the common desire; and in the absence of anything to indicate the contrary, the testator may well be supposed to prefer his kindred as other men do. C. Interpretation or Words in General. § 431. Words are presumed to be used in their plain ordinary sense. 33 § 432. Technical terms are to be understood in their technical sense. 34 § 433. All words are to be understood according to their meaning at the time and place of writing them. The custom and law of the place where the testator lived and wrote the words, not of the place where the land may be situated, determine what he meant by them. 38 No man can tell what a word may mean at any future time. The testator uses the words in the sense 83 Wlgram Wills 58; Adams v. Jones 418; Rlvenett v. Bourquin (1884), 53 (1900), 176 Mass. 185, 57 N. B. 362; Mich. 10, 18 N. W. 537; Mowatt v. Hoope's Appeal (1869), 60 Pa. St. Carow (1838), 7 Paige Ch. (N. T.) 220, 100 Am. Dec. 562 ; Bedford's Ap- 828, 32 Am. Dec. 641 ; Carnagy v. peal (1861), 40 Pa. St. 18; Edgerly Woodcock (1811), 2 Mnnf. (Va.) 234, v. Barker (1891), 66 N. H. 434, 31 5 Am. Dec. 470. Atl. 900, 28 L. E. A. 328 ; Lee v. Balrd 35 2 Greenl. Ev. 8 671. (1903), 132 N. Car. 755, 44 S. E. 605 ; Illinois— R lchards v. Miller Brett v. Donaghe (1903), — Va. — , (1872), 62 111. 417. 45 S. E. 324. Kansas — Keith v. Eaton (1897), 58 34Perrin v. Blake (1771), Har. Law Kan. 732, 51 Pac. 271. Tr. 489, 10 Eng. Rul. Cas. 689, Thomp- Massachusetts — Lincoln v. Perry son Cas. 1; Hodgson v. Ambrose (1889), 149 Mass. 368, 21 N. H. 671, (1780), 1 Doug. 337, Abbott 688; 4 L. R. A. 215. Miller v. Worrall (1900), 62 N. J. Eq. Michigan — Ford v. Ford (1890), 80 776, 48 Atl. 586, 90 Am. St. Rep. 480 ; Mich. 42, 51, 44 N. W. 1057. Leathers v. Gray (1888), 101 N. Car. Mississippi — Adams v. Farley 162, 7 S. E. 657, 9 Am. St. Rep. 30; (1895, Miss.), 18 So. 390. Keteltas v. Keteltas (1878), 72 N. T. New York— New York L. I. Co. t. 312, 28 Am. Rep. 155; Sims v. Conger Vlele (1899), 161 N. Y. 11, 55 N. E. (1860), 39 Miss. 231, 77 Am. Dec. 311, 76 Am. St. Rep. 238, 5 Pro. R. A. 671 ; Reinhardt, In re (1887), 74 Cal. 197. 365, 368, 16 Pac. 13. Tennestee — Forrest v. Porch (1897), For cases illustrating an intention 100 Tenn. 891, 45 S. W. 676. to use words out of their ordinary or Wisconsin — Ford y. Ford (1887), technical sense, see : Kelly v. Reynolds 70 Wis. 19, 83 N. W. 188, 5 Am. St. (1878), 39 Mich. 464, 33 Am. Rep. Rep. 117, Mechem 107. § 434 WILLS. 280 in which they are understood at the time he writes. A testator provided that after the death of his wife the land should be divided between his "heirs at law." Be- tween the day the will was written and the day of his death the law of inheritance was changed, but the court held that the lands were given to those who would have been his heirs according to the law when he wrote the will. 36 § 434. Words occurring more than once are presumed to be used in the same sense each time. 37 § 435. Plan of Treatment. Having disposed of the general principles of construction, the special rules of construction demand our attention. They are almost limitless in number. Of course we cannot attempt to give all or any considerable number of them, but will try to select the most important. They group themselves along several different kinds of subject matter in con- nection with which they ordinarily arise. 1. There are rules to determine who are meant by certain expressions used to describe those who are to take as beneficiaries. 2. There are rules to determine what property was in- tended to be given by certain words. 3. There are rules to determine what estates in such property were intended to be given by the particular words used. 4. There are rules to determine the meaning and effect of words of condition, etc. Let us take these up in the order named. 36 Swenson's Estate (1893), 55 Allen's Appeal (1897), 69 Conn. 702, Minn. 300, 56 N. W. 1115 ; Quick v. 38 Atl. 701 ; Stumpenhousen's Estate Quick (1870), 21 N. J. Eq. 13, 21; (1899), 108 Iowa 555, 79 N. W. S76, March, In re (1884), 27 Ch. Dlr. 166, 4 Pro. R. A. 709; Bailey v. Bailey 54 L. J. Ch. 143, 51 L. T. 380, 32 W. (1872), 25 Mich. 185; Eliot v. Carter B. 941— A. C. (1832), 12 Pick. (29 Mass.) 436, 443, Contra: Lincoln v. Perry, above. For cases in which contrary inten- 37 LeBreton v. Cook (1895), 107 Cal. tion appeared see Morrison v. Mc- 410, 417, 40 Pac. 552; Stewart v. Mahon (1901), 35 N. T. Misc. 348, 71 Stewart (1900), 61 N. J. Eq. 25, 47 N. Y. Supp. 961 ; Schaefer t. Schaefer Atl. 633; Kirkpatrick v. Kirkpatrick (1892), 141 111. 337, 343, 31 N. E. 136. (1902), 197 111. 144, 64 N. E. 267; CHAPTER XTV. ASCERTAINING BENEFICIARIES AND THEIR RESPECTIVE SHARES. § 435a. Plan of Treatment. 1. As to Certainty of Designation. § 436. Errors in Name or De- scription. § 437. Name or Description Borne by Several. §438. Gifts Void for Uncer- tainlty of Beneficiary. 1 439. Unincorporated Assem- blages. | 440. Stirpes not Specified. § 441. Classes Defined by Tes- tator. 2 Particular Terms Considered. § 442. Children. § 443. Grandchildren. § 444. Brothers, Sisters, Nephews, Nieces, and Cousins. § 445. Issue. § 446. Descendants. § 447. Offspring. § 448. Heirs, Etc. — When Only by Descent. § 449. M eaning as Words of Purchase. § 450. Distributees and Next of Kin Excluded. § 451. Peculiar Uses of "Heirs" — of Living Person. § 452. Qualifying Words Added. § 453. Limited by Con- text and Extrinsic Facts. § 454. Family. 5 455. Relatives. 5 456. Next of Kin. § 457. Representatives. § 458. Executors and Adminis- trators. § 459. Under the Intestate Laws. § 460. Servants. § 461. Other Classes. 3. Description Refers to What Time. § 462. Forecast. A. Gifts to Individuals. { 463. Gifts to an Individual by Name. 281 § 464. When a Gift is Made to a Person not Named. § 465. Gifts to the Husbands and Wives of Persons not Married. i 466. Gifts to the Oldest, Sec- ond, or Other Child. B. Gifts to Classes. a. As to Persons Included. § 467. When Class Determined before Death. § 468. Gifts to Class to be En- joyed Immediately. 5 469. Reason of Exclusion Rule. § 470. Postponed Gifts to Helrs < Next of Kin, Relatives! Etc. — General Rule. § 471. When Particular Tenant is Also Heir. § 472. If There Are no Heirs at Testator's Death. § 473. Postponed Gifts to Chil- dren, Cousins, and the Like. § 474. Limitations. § 475. Illustrations and Application as to Na- ture of Postponement and Estate. S 476. Scope of the Rule as to Donees and Prop- erty and Estate Given. §477. Children En Ventre Sa Mere. 6. Effect of Member of Class Dropping out. §478. Death of Member — Rights of Heirs and Representatives. . § 479. Death of Member — Rights of Survivors. § 480. Incompetence of Mem- ber — Rights of Others, c. Effect of Stating Number. § 481. May be Disregarded Usually. §482. When Statement of Num- ber Controls. §435 WILLS. 282 Division Per Capita or Per Stir- pes. 5 483. Individuals. 1 484. Simple Classes. § 485. Complex Classes — Heirs, Next of Kin, and the Like. I 486. Several Classes — Chil- dren of Several. § 487. Several Classes — Other than Children. S 488. Uniting Individuals and Classes. § 489. Effect of Modifying Words. § 435a. Plan of Treatment. The following are the principal groups of questions that may arise concerning the persons to take under the will : 1, as to whether the description is wholly void for uncertainty; 2, or if not, then who were the persons intended hy the expressions used, of which the variety is almost endless; 3, if some would answer the description at one time and others at other times, to what time shall it be applied; and, 4, if the gift was to several, whether they were intended to take as individuals, which is called taking per capita, or were intended to take in groups, as representatives of persons not in the class, which is called taking per stirpes. We will now consider these questions in the order named. 1. AS TO CEBTAINTY OF DESIGNATION. §436. Errors in Name or Description. The person to take may be either named or described in the will, or both; and if the intention of the testator can be ascer- tained from either with the allowed aid of parol evi- dence, the gift will not fail because of errors in the other. 38 A wrong description will not defeat a legacy to a person named. 39 Thus, a gift "to my said wife A," was held good though the marriage was void, 40 and a gift to "Woodstock College of Howard County," was 38 Patch v. White (1885), 117 V. S. 210, 217 ; Brewster v. McCall (1842), 15 Conn. 274, 292. 39 Standen v.. Standen (1795), 2 VeB. Jr. 589; Willard v. Darrah (1902), 168 Mo. 660, 68 S. W. 1023, 90 Am. St. Rep. 468. *0DIcke v. Wagner (1897), 95 Wis. 260, 70 N. W. 159, void as incestuous ; Dries's Will (1903), — N. J. Eq. — , 55 Atl. 814; Kendall v. Abbott (1799), 4 Ves. 802, Abbott 258, legatee having another wife; Eishton v. Cobb (1839), 9 Sim. (16 Eng. Ch.) 615, 9 L. J. Ch. 110, affirmed (1839), 5 Myline & Cr. (46 Eng. Ch.) 145, 4 Jur. 261, being a gift to "Lady F, widow of Sir N," she having married another before the will was made ; Dilley v. Matthews (1863), 8 L. T. (n. s.) 762, 11 W. 283 ASCBBTAINING BENEFICIAKIES. § 437 good though the college was situated in Baltimore County. 41 § 437. Name or Description Borne by Several. If anyone exactly answers the description in the will, and there is nothing on its face to cast doubt on the descrip- tion, extrinsic evidence is not competent to show that one not exactly answering the description was intended. 42 Thus, such evidence was held incompetent to show that an illegitimate nephew was intended by a devise to "my nephew Philip," there being a legitimate nephew of that name. 43 But very slight indication is sufficient to open the door to other evidence. Thus, a gift to "my wife" was held to mean the woman with whom the testator was living, though another was his lawful wife, because "my first wife" was mentioned in the will. 44 And if sev- eral persons answer the description exactly, 45 or if no per- son is found exactly answering the description, and sev- eral answer it in part, extraneous evidence is competent to identify the intended beneficiary, and the person to take will depend on the intention so ascertained. Thus, a bequest to my namesake "Samuel G., son of Captain R. 614, testator having another wife; 83, 63 L. J. Ch. 437, 70 L. T. 825, 42 Anderson v. Berkley (1902), 86 Law W. R. 520 — C. A. Times 443, to "my son F. and L. his 44 Pastene v. Bonini (1896), 166 wife," though it may he the testator Mass. 85, 44 N. E. 246. To the same would not have made the gift if he point see also : Hardy v. Smith had known that F. and L. were living (1884), 136 Mass. 328; Powers v. as husband and wife without being McEachern (1876), 7 S. Car. 290; married. Powell v. Biddle (1790), 2 Dall. (Pa.) However, these cases are to be dis- 70, 1 Am. Dec. 263; Petts, In re tinguished from those heretofore cited (1859), 27 Beav. 576, 29 L. J. Ch. in S 170, in which the gift appeared 168, 5 Jur. (n. s.) 1235, 1 L. R. to have been obtained by fraudulently (n. b.) 153, 8 W. R. 157. assuming a false character. See also A grandniece was allowed to take Boddlngton, In re (1884), 25 Ch. D. under a bequest to "my niece W. in 685, 53 L. J. Ch. 475, 50 L. T. 761. N," though the testator had a niece 4i Kerrigan v. Conelly (1900, N. by that name in N, because another J Ch.), 46 Atl. 227. grandniece was spoken of in the will 42 Root's Estate (1898), 187 Pa. St. as a niece. Palmer v. Munsell (1896, 118 40 Atl. 818; Charch v. Charch N. J. Ch.) 46 Atl. 1094; see also, (1898) 57 Ohio St. 561, 579, 49 N. E. Willard v. Darrah (1902), 168 Mo. 660, 408- Union Trust Co. v. St. Luke's 68 S. W. 1023, 90 Am. St. Rep. 468, Hospital (1902), 74 N. T. App. Div. a similar case. 330 77 N Y. S. 528. 4S Bradley v. Rees (1885), 113 111. 48 Appel v. Byers (1881), 98 Pa. 327, 55 Am. Rep. 422. St. 479; Fish, In re (1894), 2 Ch. D. 438 WILLS. 284 John F. Slaughter," was held to entitle Samuel G., son of Captain John F. Hawkins, Hawkins being a friend of the testator, Slaughter not a captain, and his son Sam- uel G-. not born till after the will was made. 46 If the de- scription identifies the person intended, a mistake in the name will not vitiate. Thus, a gift to "Otto, the child of Martha," was good, though her only child was named Arthur; 47 and though both the name and the descrip- tion given be somewhat inaccurate, the gift will be good if it appears who was intended. 48 § 438. Gifts Void for Uncertainty of Beneficiary. When the name and description given are not sufficient to identify the beneficiary, with such light as is thrown on the language by the circumstances under which it 46 Hawkins v. Garland (1882), 76 Va. 149, 44 Am. Eep. 158, 3 Am. Pro. R. 550. The following are very similar cases, to the same effect : Morse v. Stearns (1881), 131 Mass. 389, 2 Am. Pro. E. 51 ; Willard v. Darrah, above ; At- terbury v. Strafford (1899), 58 N. J. Bq. 186, 44 Atl. 160. See also : Char- ter v. Charter (1874), L. R. 7 H. L. 364, 43 L. J. P. 73 ; Mostyn v. Mostyn (1854), 5 H. L. Cas. 155, 23 L. J. Ch. 925; Ingle, In re (1871), 11 Bq. Cas. 578, 40 L. J. Ch. 310, 24 L. T. (n. s.) 315. On this point see also an extensive note in 50 Am. St Rep. 279 et seq. As to Corporations. In the follow- ing cases latent ambiguity as to the corporate beneficiary intended was cured by parol : Bristol v. Ontario O. S. (1891), 60 Conn. 472, 22 Atl. 848; Faulkner v. National S. H. (1892), 155 Mass. 458, 29 N. B. 645; Keith v. Scales (1899), 124 N. Car. 497, 32 S. B. 809 ; Washington & L. Univ. App. (1886), 111 Pa. St. 572, 3 Atl. 664; Webster v. Morris (1886), 66 Wis. 366, 28 N. W. 353, 57 Am. Rep. 278. 47 Gorkow's Estate (1899), 20 Wash. T.63, 56 Pac. 385 ; Covert v. Sebern (1887), 73 Iowa 564, 35 N. W. 636, "to my step-son, H. S. Covert, the real name being John H. ;" Acton v. Lloyd (1883), 37 N. J. Bq. 5, "to my neph- ews," naming all but one and giving a nickname applied to one that had died; Moore v. Moore (1892), 50 N. J. Eq. 554, 565, 25 Atl. 403, to the "German Theologican School at Bloom- field;" Riekifs Trust (1853), 11 Hare (45 Bng. Ch.) 299, 1 Eq. R. 251, 22 L. J. Ch. 1044, 17 Jur. 664, 1 W. R. 492, "my niece, the daughter of my late sister Sarah," Sarah's only child being a son. 48 Misnaming Ancestor. Waller, In re (1899), 68 L. J. Ch. 526, 80 L. T. 701, 47 W. R. 563, holding that "such daughters of my late friend Ignatius Scoles" is sufficient to entitle the daughters of Joseph J. Scoles (tes- tator's friend) Ignatius being a Jes- uit priest, a son of Joseph, scarcely known to the testator, and having no daughters. Misnaming Charity, etc. Smith v. Kimball (1883), 62 N. Ham. 606, holding the Kimball Union Academy of Meriden sufficiently desig- nated in a gift to "the Meredith Insti- tution located at Meredith, N. H." Weed v. Scofleld (1901), 73 Conn. 670, 49 Atl. 22, holding the "Society for the Relief of the Ruptured and Crippled of New York" sufficient to designate "The New York Society for the Ruptured and Crippled." Woman's Foreign Missionary Soc. v. Mitchell (1901), 93 Md. 199, 48 Atl. 737, 53 L. R. A. 711, holding a gift to the "Board of Managers of the Foreign Missionary Society of the Methodist Bpiscopal Church" sufficient 285 ASCERTAINING BENEFICIARIES. § 439 was written, the gift is void for uncertainty. 49 But if the gift is for a public charity it may be saved by aid of the cy pres doctrine though it would be void as a private gift. 60 §439. Unincorporated Assemblages. Gifts by will to assemblages having no certain membership, such as "the yearly meeting of the people called Quakers of New England," 51 must almost of necessity be held void for uncertainty; and if there is a certain membership, still the members for the time being could not be permitted to take beneficially, enabling any member to call for a division at any time, which would be entirely contrary to the testator's manifest intention. 52 A corporation bearing a similar name and organized to hold property for the society could not take a gift intended for the society, not being the person to whom the testator in- tended to give; 53 and an act incorporating the society and declaring the gift valid was held unconstitutional, as af- to entitle the "Woman's Foreign Mis- me with proper medical treatment at sionary Society," etc., of that church, my request, during the rest of my life, being the only society engaged in that * * * shall have a written state- work ; following Eeilly v. Union P. ment signed by me to that effect." I. (1898)., 87 Md. 664, 40 Atl. 894. Dennis v. Holsapple (1897), 148 Ind. Van Nostrand v. Board of D. M. R. 297, 47 N. E. 631, 62 Am. St. Eep. C. A. (1899), 59 N. J. Eq. 19, 44 Atl. 526, 46 L. E. A. 168. 472, holding a gift to the "Domestic 50 See the cases cited under the sec- Missionary Society" sufficient to en- tlon on gifts to Unincorporated As- title the "Board of Domestic Mis- semblageSj post § 439. 51 Greene v. Dennis (1826), 6 Conn. 293, 300, 16 Am. Dec. 58. sions" of the church of which the testator was a member, and often spoken of by him by the name used in the will. Same point: Tilton v. Amer- 52 Ibid ; Amos, In re (1891), 3 Ch. ican Bib. Soc. (1880), 60 N. Ham. D - 159 > 164 . 65 L - T - 69 > 39 W. E. 377, 49 Am. Rep. 321 ; Cbappell v. 550 > holding a. bequest to a boiler- Missionary Soc. (1891), 3 Ind. App. maker's society void for uncertainty. 356, 29 N. E. 924, 50 Am. St. Rep. Tne case of Ticknor's Estate (1864), 276. 13 Mich. 44, 54, 4 Am. L. Eeg. (n. A bequest $500 "to be divided among s > 273 > seemB opposed to this state- the Sisters of Charity" was held void ment > tut tQe P° int was n °* made, for uncertainty: Moran v. Moran ss Fifleld v. Van Wyck (1897), 94 (1897), 104 Iowa 216, 73 N. W. 617, Va. 557, 27 S. E. 446, 64 Am. St. Eep. 39 L. E. A. 204, 65 Am. St. Rep. 443. 745; Wheeler, In re (1898), 32 N. Y. 49 Careless v. Careless (1816), 19 App. D. 183, 52 N. Y. S. 943, affirmed Ves. 601, 1 Mer. 384. • (1900), 161 N. Y. 652; Hinkley v. The following was held a sufficient Thatcher (1885), 139 Mass. 477, 1 N. description of the legatee : "Whoever E. 840. shall take good care of me, and main- But see Brewster v. McCall (1842), tain, nurse, and clothe, and furnish 15 Conn. 274, 297. §439 WILLS. 28S fecting rights vested on the testator's death. 54 Where charitable trusts have not been abolished it has been held the members of the society may be treated as trustees, and the specified charity upheld, though not germane to the objects of the society . BB Gifts to natural persons in trust for unincorporated societies have frequently been upheld as charities, 66 though the membership of the so- ciety was uncertain. 67 But this would not be sufficient where such trusts have been abolished; 58 and even where such trusts are recognized the use must be charit- able, 59 and there is the greatest diversity of opinion as to the amount of certainty required as to the object, so that gifts to unincorporated societies having definite objects have often been held void for uncertainty. 60 54 State v. Warren (1867), 28 Md. 338, 355, a bequest for the Methodist Church at G. But where the statutes provide that on religious societies becoming incorpo- rated property held by the society before shall vest in the society as fully as if incorporated from the time of its religious organization, it is held that such gifts may be made good by the incorporation of the society after the death of the testator. Lane v. Eaton (1897), 69 Minn. 141, 71 N. W. 1031, 65 Am. St. Eep. 559, 38 L. R. A. 669 ; Methodist Church v. Clark (1879), 41 Mich. 730. 55 Dye v. Beaver Creek Church (1896), 48 S. Car. 444, 26 S. E. 717, 59 Am. St. Eep. 724, in which a gift to a church society to maintain a free school was sustained, following Atty. Gen. v. Jolly (1844), 1 Rich. Eq. (S. Car. ) 99, 42 Am. Dec. 349 ; American Bible Soc. v. Wetmore (1845), 17 Conn. 181, stating that the court would not permit the trust to fail for want of a trustee; Cobb v. Denton (1873), 65 Tenn. (6 Baxter), 235, to church void, because no trustee. 56 As in the following cases : Tucker v. Seaman's Aid Soc. (1843), 7 Mete. (48 Mass.) 188, being a bequest to the treasurer of the society for the time being without naming him ; Dickson v. Montgomery (1851), 1 Swan (31 Tenn.) 348; Johnson v. Johnson (1893), 92 Tenn. 559, 36 Am. St. Rep. 104, 23 S. W. 114. 57 Burr v. Smith (1835), 7 Vt. 241, 29 Am. Dec. 154, being a bequest to the treasurer of the American Bible Soc, in trust for the purposes of the society. 68 Lane v. Eaton (1897), 69 Minn. 141, 71 N. W. 1031, 65 Am. St. Rep. 559, 38 L. R. A. 669. And though a corporation organized for that purpose conld execute Buch trusts, the incorporation of the so- ciety after the death of the testator would not save the gift : Ruth v. Oberbrunner (1876), 40 Wis. 238, for a female academy of the order St. Do- minican ; Owens v. Missionary Society (1856), 14 N. T. 380, 67 Am. Dec. 160. 69 A bequest to an executor in trust to keep the fences of a cemetery in re- pair was held void though the ceme- tery association was empowered to hold for such purposes. It could not take because not intended, and as a private trust it was void. Corle's Case (1901), 61 N. J. Eq. 409, 48 Atl. 1027. so Gifts were Held Void for Uncer- tainty of the object in the following cases: Gallego v. Atty. Gen. (1832), 3 Leigh (Va.) 450, 24 Am. Dec. 650, to build and support a chapel on ground devised to the trustees for a site; State v. Warren (1867), 28 Md. 338, 355, to the Methodist Church at G; Bridges v. Pleasants (1845), 4 Ired. Eq. (39 N. Car.) 26, 44 Am. Dec. 94, directing executors to apply residue "to foreign missions and to 287 ASCERTAINING BENEFICIARIES. §440 § 440. Stirpes not Specified. When a gift is made to "the" heirs, children, or the like, without specifying whose, the court will adhere as closely as possible to the rules of descent and distribution, and presume that the testator referred to his own heirs, or the like. 61 § 441. Class Denned by Testator. Though the gift be in terms to a class, the court must observe the testa- tor's specifications of exclusion, as "To all my nieces, who are A, B, and C;" 62 or "to their heirs except A." 63 Again, a provision for a child declared to be in full of his share might exclude him from taking under a later clause devising the residue to be divided among the children. 64 the poor saints" and to "home mis- sions," see extended note in last re- port; Carpenter v. Miller (1869), 3 W. Va. 174, 100 Am. Dec. 744, "to the propagation of religion in foreign lands;" Kerrigan v. Conelly (1900, N. J. Eq.) 46 Atl. 227, to the Sisters of St. Joseph; Scott's Estate (1900), 31 N. Y. Misc. 85, 64 N. Y. S. 577, to an unincorporated religious society, void for want of a purpose, as none could be presumed. Gifts were Sustained in the follow- ing cases: Cruse v. Axtell (1875), 50 Ind. 49, to a lodge of free masons, appointing trustees to sell part of the land and build on the rest ; Bartlett v. Nye (1842), 4 Mete. (45 Mass.) 378, a devise to an unincorporated Ameri- can Bible Soc. ; Chambers v. Higgins (1899, Ky.) 49 S. W. 436, "to the Christian Missionary Society or Con- vention of the Christian Church of Kentucky," citing also Penick v. Thomas (1890), 90 Ky. 665, 14 S. W. 830 ; Barnum v. Mayor of Balti- more (1884), 62 Md. 275, 297, 50 Am. Bep. 219, to an unincorporated public board for a public school ; Pennoyer v. Wadhams. (1891), 20 Ore. 274, 25 Pac. 720, 11 L. K. A. 210, to build a Presbyterian church at A, there being no society there ; Crerar v. Williams (1893), 145 111. 625, 34 N. E. 467, 21 L. R. A. 454, to incorporate u free library assn. in Chicago in a manner not authorized by law ; Lilly v. Tobbein (1890), 103 Mo. 477, 15 S. W. 618, 23 Am. St. Hep. 887, to a Catholic church; Keith v. Scales (1899), 124 N. Car. 497, 32 S. B. 809, sustaining gift to build a church, there being no corporation to take, and holding inde- pendent of cy pres doctrine or 43 Eliz. 61 Abel v. Abel (1902), 202 Pa. St. 543, 51 Atl. 333; Angus v. Noble (1900), 73 Conn. 56, 46 Atl. 278, 5 Pro. R. A. 643. "To my daughter A for life, re- mainder to her daughter B in fee and in case of B's death, then to be di- vided amongst the children" was held to mean A's children, not B's. B was not married till after testator's death. Webb v. Hitchins (1884), 105 Pa. St. 91. 62Wildberger v. Cheek (1897), 94 Va. 517, 27 S. E. 441. 63 Johnson v. First Nat. Bk. (1901), 192 III. 541, 61 N. E. 379 ; McGovran's Estate (1899), 190 Pa. St. 375, 42 Atl. 705. eiDickison v. Dickison (1891), 138 111. 541, 28 N. E. 792, 32 Am. St. Rep. 163, Mechem 104 ; Weller v. Weller (1899), 22 Tex. Civ. App. 247, 54 S. W. 652; Angus v. Noble (1900), 73 Conn. 56, 46 Atl. 278, 5 Pro. R. A. 643; Griffin v. Ulen (1894), 139 Ind. 565, 39 N. B. 254 ; Kemp v. Kemp (1901), 36 N. T. Misc. 79, 72 N. Y. S. 617; Sullivan v. Straus (1894), 161 Pa. State 145, 28 Atl. 1020. But see Fahnestock's Estate (1892), 147 Pa. St. 327, 23 Atl. 573. §442 WILLS. 288 2. PAETICTJLAB TEEMS CONSIDEBED. § 442. Children. 1 The immediate lawful descendants of the person named take under a gift to his children. His grandchildren, 65 stepchildren, 68 adopted children, 67 and illegitimate children, 68 do not take unless it appears by the context of the will, 89 or by the extrinsic circum- stances that they were intended to take, as if there were no other children. 70 § 443. Grandchildren. Likewise, only direct descend- ants of the second generation are presumed to be in- i As to who take as children see Note 3 Pro. E. A. 20-31. A gift to "their children" of two, who are man and wife, does not in- clude the children of either by another. Evans v. Opperman (1890), 76 Tex. 293, 13 S. W. 312. 65 Steinmeng's Estate (1900), 194 Pa. St. 611, 45 Atl. 663, 5 Pro. E. A. 467; Hunt's Estate (1890), 133 Pa. St. 260, 19 Atl. 548, 19 Am. St. Eep. 640 ; Lee v. Baird (1903), 132 N. Car. 755, 44 S. E. 605; Teates v. Shern (1901), 84 Minn. 161, 86 N. W. 1004 ; West v. Eassman (1893), 135 Ind. 278, 34 N. E. 991; Logan y. Brunson (1899), 56 S. Car. 7, 33 S. E. 737 ; Eeynold's Will (1898), 20 E. I. 429, 39 Atl. 896, 3 Pro. E. A. 17 ; Phinizy v. Poster (1890), 90 Ala. 262; Brett v. Donaghe (1903), — Va. — , 45 S. E. 324. The children being all dead when the will was made, held that grandchildren were intended. Dunn v. Cory (1898), 56 N. J. Eq. 507, 39 Atl. 368, and cases cited therein. So when part were dead : Bowker v. Bowker (1889), 148 Mass. 198. 66 Blankenbaker v. Snyder (1896, Ky.), 36 S. W. 1124; Kurtz's Estate (1892), 145 Pa. St. 637, 23 Atl. 322; Lawrence v. Hebbard (1850), 1 Brad. Sur. (N. Y.) 252; Pouke v. Kemp (1820), 5 H. & J. (Md.) 135; Carroll v. Carroll (1858), 20 Tex. 731. But see Herrick v. Snyder (1899), 27 N. T. Misc. 462, 59 N. Y. Supp. 229. 67Eussell v. Eussell (1887), 84 Ala. 48, 3 South. 900. 68 Flora v. Anderson (1895), 67 Fed. Eep. 182; Shearman v. Angel (1831), I Bailey Eq. (S. Car.) 351, 23 Am. Dec. 166; Adams v. Adams (1891), 154 Mass. 290, 28 N. E. 260, 13 L. E. A. 275. Legitimated children take : Gates v Seibert (1900), 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Eep. 625 ; Carroll v. Carroll (1858), 20 Tex. 731. See note 4 Pro. E. A. 307. 69 Bowker v. Bowker (1889), 148 Mass. 198, 19 N. E. 213 ; Paton, Matter of (1888), 111 N. T. 480, 18 N. E. 625 ; Miller v. Carlisle (1890), 90 Ky. 205, 14 S. W. 75 ; Edwards v. Bender (1899), 121 Ala. 77, 25 South. 1010; Scott v. Nelson (1836), 3 Porter (Ala.) 452, 29 Am. Dec. 266. 70 Gale v. Bennett (1768), Ambler 681; Fenn v. Death (1856), 23 Beav. 73, 2 Jur. (n. s.) 700 ; Schedel's Estate (1887), 73 Cal. 594, 15 Pac. 297; Scholl's Will (1898), 100 Wis. 650, 76 N. W. 616. "Children who may be surviving heirs" includes children of a deceased child, per stirpes. Houghton v. Ken- dall (1863), 7 Allen (Mass.) 72. Illegitimate children were allowed to take to the exclusion of the le- gitimate, when the testator had de- serted his wife years before, was liv- ing with the mother of the illegitimate children, and gave the property to her in trust for his children. Elliott v. Elliott (1888), 117 Ind. 380, 20 N. E. 264, 10 Am. St. Eep. 54. See also Gill v. Shelley (1831), 2 Euss. & M. 336, Abbott 693. In a number of late cases illegiti- mate children have been held on the facts to be comprehended under a gift to children generally. Hayden v. Bar- rett (1899), 172 Mass. 472, 52 N. E. 530; Sullivan v. Parker (1893), 113 N. Car. 301, 18 S. E. 347; Scholl's Will (1898), 100 Wis. 650, 76 N. W. 616. 289 ASCERTAINING BENEFICIARIES. §444 tended by a gift to grandchildren. Ordinarily great- grandchildren 71 and children of stepchildren 72 will be excluded. §444. Brothers, Sisters, Nephews, Nieces, and Cousins. Gifts to brothers and sisters include half- brothers and sisters, 73 to nephews and nieces include children of half-brothers and sisters. 74 "Cousins" means first cousins only, 75 and "second cousins" do not include children or grandchildren of first cousins, 76 un- less explained. 77 If a member of the class named be dead, whether the class be brothers and sisters, nephews and nieces, 78 or cousins, 79 his descendants do not take, unless an intention that they shall is manifested by the context and circumstances, 80 or the lapse prevented by statute. 81 Illegitimate relations of the class named, 82 and those who are members of the class by marriage 71 Hone v. Van Schaick (1858), 3 N. X 538; Yeates v. Gill (1848), 9 B. Mon. (48 Ky.) 203. 72 Barnes v. Greenzeb'ach (1831), 1 Ed. Ch. (N. T.) 41. T3 Half blood: McNeal v. Sherwood (1902), — E. I. — , 53 Atl. 43; In re Reed (1888), 57 L. J. Ch. 790, 36 W. B. 682. Compare Wood v. Mitcham (1883), 92 N. Y. 375. 7i Grieves v. Eawley (1852), 10 Hare (44 Eng. Ch.) 62, 22 L. J. Ch. 625, 21 Eng. L. & Eq. 310 ; Shull V. Johnson (1855), 2 Jones Eq. (55 N. Car.) 202. Compare post § 456. 75 Stevenson v. Ablngton (1862), 31 Beav. 305. 76 Parker, In re (1881), 17 Ch. Dlv. 262, 44 L. T. 885, 50 L. J. Ch. 639, 29 W. B. 855 — A. C. ; Corporation of Bridgnorth v. Collins (1847), 11 Si- mon Ch. (38 Eng. Ch.) 538, 541. 77 As to modification by context see Wllks v. Bannister (1885), 30 Ch. Dlv. 512, 54 L. J. Ch. 1139, 53 L. T. 247, 33 W. E. 922 ; Charge v. Goodyer (1826), 3 Eussell Ch. (3 Eng. Ch.) 140. 78 Woodward, In re (1889), 117 N. Y. 522, 23 N. E. 120, 7 L. E. A. 367 ; Downing v. Nicholson (1902), 115 Iowa 493, 88 N. W. 1064; Harrison's 19 Estate (1902), 202 Pa. St. 331, 51 Atl. 976 ; and see note 9 L. E. A. 200. 79 Sanderson v. Bayley (1837), 4 Mylne & C. (18 Eng. Ch.) 56; White- v. Massachusetts I. T. (1898), 171 Mass. 84, 98, 50 N. E. 512. so The gift being to brothers or brothers and sisters, and all of the brothers or sisters being dead, or all but one, the plural number manifests an intention that the descendants shall take. Fuller v. Martin (1895), 96 Ky. 500, 29 S. W. 315 ; Huntress v. Place (1884), 137 Mass. 409. There being no nieces, grandnieces were- Included. Peard v, Vose (1896), 19 E. I. 654, s. c. sub nom. In re Davis, 35 Atl. 1046. Grandnephew included in gift to nephews becoming ministers. Shepard v. Shepard (1889), 57 Conn. 24, 17 Atl. 173. 81 Howland v. Slade (1892), 155 Mass. 415, 29 N. E. 631. See also ch. XX. 82 Bastard nephews: Lyon v. Lyon (1896), 88 Me. 395, 400, 34 Atl. 180; Fish, In re (1894), 2 Ch. D. 83, 63 L. J. Ch. 437, 70 L. T. 825, 42 W. E. 520, — C. A. Unless aided by the context as in Jodrell, In re (1889), 44 Ch. Div, 590. §445 WILLS. 290 only without any blood relationship, 1 do not take, un- less aided by the context. 83 § 445. Issue. 84 Issue is an ambiguous word and has caused the courts much trouble. It may mean the first generation only, children, or it may embrace all lineal descendants of any degree. If it be restricted to chil- dren, the issue of a deceased child are excluded; which the testator would not wish in one case in a hundred. In its accurate legal sense it includes all lineal descend- ants of any degree, and will be so construed in the ab- sence of anything in the context indicating a more re- stricted meaning. 85 But this construction enables chil- dren and grandchildren to take in competition and equally with their living ancestors, all as members of one class; 86 which would as seldom satisfy the testator's real wish. That children only are intended by the word may appear from the context; 87 and a disposition by the English courts during the past century to accept i Husband's nephews and nieces and busbands and wives of her own : Green's Appeal (1862), 42 Pa. St. 25; Goddard v. Amory (1888), 147 Mass. 71, 16 N. E. 725; Wells v. Wells (1874), L. E. 18 Eg. Cas. 504, 43 L. J. Ch. 681, 31 L. T. (n. s.) 16, 22 W. E. 893. "My nephew, W." means testator's, not his wife's nephew, though of the same name, and parol evidence of a contrary intent is incompetent. Boot's Estate (1898), 187 Pa. St. 118, 40 Atl. 818. But see contra : Taylor, In re (1886), 34 Ch. Div. 255, 56 L. J. Ch. 171, 55 L. T. 649, 35 W. B. 186— A. C. 83 There being no nephews by blood r.or possibility of any, the wife's were included. Sherratt v. Mountf ord (1873), 8 Ch. Ap. 928, 42 L. J. Ch. 688, 29 L. T. (n. s.) 284, 21 W. B. 818— C. A; Fish, In re (1894), 2 Ch. D. 83, 63 L. J. Ch. 437, 70 L. T.) 825, 42 W. B. 520— C. A. 84 See notes 11 L. B. A. 305, 7 Pro. E A. 266. 85 2 Bigelow's .Tarmnn *946 ; Soper V. Brown (1892), 136 N. T. 244, 32 N. E 768, 32 Am. St. Eep. 731 ; Cavarly's Estate (1897), 119 Cal. 406, 51 Pac. 629. 86 2 Bigelow's Jarman *946 ; Daven- port v. Hanbury (1796), 3 Ves. 257, 3 E. E. 91; Cook v. Cook (1706), 2 Vern. Ch. 545 ; Soper v. Brown, above, dictum. It was so held in Wistar v. Scott (1884), 105 Pa. St. 200, 51 Am. Eep. 197, in which issue of a deceased child were allowed to share equally with the survivors of the proceeding generation ; followed in Pearce v. Eickard (1893), 18 E. I. 142, 26 Atl. 38, 49 Am. St. Eep. 755, 19 L. E. A. 472; Bidley v. McPherson (1897), 100 Tenn. 402, 43 S. W. 772. Lord Ch. Loughborough expressed re- gret in Freeman v. Parsley (1797), 3 Ves. 421, that there was no middle ground between excluding the issue of a deceased child entirely and allowing all to share equally. He divided the property per capita among all. 87Chwatal v. Schreiner (1896), 148 N. T. 683, 43 N. E. 166; Arnold v. Alden (1898), 173 III. 229, 50 N. E. 704; Blrks, In re (1900), 1 Ch. 417, 81 L. T. 741, 69 L. J. Ch. 124. 291 ASCEETAINING BBNEFICIAEIES. §446 slight indications as showing an intention to restrict the gift to children only has been noticed. 88 Probably the nearest approach to satisfying the wishes of testators in general is accomplished by adopting the construction given in Massachusetts, excluding the issue of living children, and permitting all the issue of any generation to take per stirpes the share which would have gone to any deceased child or issue. 89 Illegitimate issue 90 and adopted children 91 are not generally permitted to take under gifts to issue. § 446. Descendants. Like issue, but even more clearly, descendants includes all persons in the direct 88 See 2 Redfield Wills *41 et seq. Meaning of issue affected by context. When the testator speaks of the issue of such issue an inten- tion to confine the first gift to chil- dren is plain. Pope v. Pope (1851), 14 Beav. 591; Fairfield v. Bushell (1863), 32 Beav. 158. Gifts Over to Issue. When gifts have been made to a person with gift over to his issue in case he should die by a certain time it has been held quite generally since Sibley v. Perry (1802), 7 Ves. 522, that the gift over is re- stricted to children, remoter issue being excluded. Pruen v. Osborne (1840), 11 Simon Ch. (34 Eng. Ch.) 132; Ralph v. Carrick, below. "Issue" used in Connection with "De- scendants" cannot be interpreted to mean children only. Ralph v. Carrick (1879), L. R. 11 Ch. Div. 873, 882 et seq., 48 L. J. Ch. 801, 40 L. T. 505— A C. When "Children" and "Issue" are used i/nterchangeaoly it is sometimes held that children only are included, as in Arnold v. Alden (1898), 173 111. 229, 50 N. B. 704 ; at other times, that children so used means issue, as in Horspool v. Watson (1797), 3 Ves. 383. See also 2 Bigelow's Jarman *952. ' "Issue or children" means more than "child or children," entitling remoter issue to take when and only when a child has died, and then only his share. Hall v. Hall (1885), 140 Mass. 267, 2 N E. 700. Necessary to Validity. By adopting this construction the rule against per- petuities was avoided in Madison v. Larmon (1897), 170 111. 65, 48 N. E. 556. To Avoid Competition. In King v. Savage (1876), 121 Mass. 303, this rule was declared in holding that the second generation could not take in compe- tition with their living parents. A similar decision was made on the con- text in Emmet v. Emmet (1901), 67 N T. App. Div. 183, 73 N. Y. S. 614. But in Hills v. Barnard (1890), 152 Mass. 67, 25 N. E. 96, 9 L. R. A. 211, and United States T. Co., Matter of (1902), 36 N. Y. Misc. 378, 73 N. Y. S. 635, it was held under such facts that the rule could not be applied to exclude the issue of a deceased child. 89 Jackson v. Jackson (1891), 153 Mass. 374, 26 N. E. 1112, 25 Am. St. Kep. 643, 11 L. R. A. 305, and see note to last. This plan was suggested and adopted by this court in Dexter v. Inches (1888), 147 Mass. 324, 17 N. E. 551, Holmes, J., writing the opinion. See also Ferrer v. Pyne (1880), 81 N. Y 281. so Flora v. Anderson (1895), 67 Fed. Rep. 182. But see Walker, In re (1897), 2 Ch. D. 238. si Jenkins v. Jenkins (1887), 64 N. Hamp. 407, 14 Atl. 557; New York Life Ins. Co. v. Viele (1899), 161 N. Y. 11, 55 N. E. 311, 76 Am. St. Rep. 238, 5 Pro. R. A. 197. Contra: Hartwell v. Tefft (1896), 19 R. I. 644, 35 Atl. 882, 34 L. R. A. 500. §447 WILLS. 292 line to the remotest degree, 92 and excludes all collateral kindred. 93 The early decisions were to the effect that all generations would share per capita; 94 but not in com- petition with living ancestors it was held in one case, 95 agreeing with what was said above as to issue; 96 and where gifts to issue are divided per stirpes now, gifts to descendants are also. 97 § 447. Offspring. This word is synonymous with issue and descendants, including all generations. 98 §448. Heirs, Etc. 1 — When Only by Descent. Ordi- narily a gift "to A and his heirs" will not enable A's heirs to take as purchasers if A dies before the gift vests. 2 So used they are purely words of limitation. At common law if a man devised to his heirs the same estate they would take by descent, neither greater nor less, they were held to take by descent and not by the will, descent 92 Ralph v. Carrick (1879), 11 Ch. Div. 873, 48 L. J. Ch. 801, 40 L. T. 505— A. C. ; Bates v. Gillett (1890), 132 111. 287, 24 N. B. 611. See decisions post on statutes to pre- vent lapse of gifts to descendants. 8 674. "Legal and direct descendants — heirs of their bodies begotten and their heirs," was held to include only those who would take as "heirs of their bodies," excluding children of a de- ceased child, and giving all to the sur- vivors. Lancaster v. Lancaster (1900), 187 111. 540, 58 N. E. 462. 98 Bates v. Gillett, above ; Tichnor v. Erewer (1895), 98 Ky. 349, 33 S. W. 86; Baker v. Baker (1857), 8 Gray (74 Mass.) 101, 118. But under special circumstances col- lateral kindred were held to have been intended in Best v. Stonehewer (1864), 34 Beav. 66, 34 L. J. Ch. 26, 10 Jur. (n. s.) 1140, 11 L. T. (n. s.) 468, 13 W. E. 126 ; same case affirmed on ap- peal (1865), 2 DeGex J. & S. (67 Eng. Ch.) 537, 34 L. J. Ch. 349, 12 L. T. (n. s.) 195, 13 W. E. 566, 11 Jur. (n. s.) 315. And see Turley v. Turley (1860), 11 Ohio St. 173. 94 Butler v. Stratton (1791), 3 Brown Ch. 367; Crosley v. Clare (1761), 3 Swanson 320 note, Ambler 397. The will made it per stirpes in Legard v. Haworth (1800), 1 East 120; Eobinson v. Shepherd (1863), 4 DeGex J. & S. (69 Eng. Ch.) 129, 10 Jur. (n. s.) 53. 96 Tucker v. Billing (1856), 2 Jur. (n. s.) 483. See also Townsend v. Townsend (1892), 156 Mass. 454, 31 N. E. 632. 96 Ante § 445. 97 Townsend v. Townsend, above. 98 Barber v. Pittsburg Ey Co. (1896), 166 U. S. 83, 101 ; Thompson v. Beas- ley (1854), 3 Drewry 7, 3 Bq. R. 59, 24 L. J. Ch. 327, 18 Jur. 973; Young v. Davies (1863), 2 Drew. & Sm. 167, 32 L. J. Ch. 372, 9 Jur. (n. s.) 399, 8 L. T. (n. s.) 80, 11 W. E. 452. X See note 12 L. R. A. 721. 2 Adams v. Jones (1900), 176 Mass. 185, 57 N. B. 362, 5 Pro. E. A. 618. And see post § 682. As Words of Limitation. The mean- ing of heirs, issue, offspring, descend- ants, children, and the like as words of limitation will be considered later. See post §§ 539, 549, 552, 556-561, 582, 583. 293 ASCEBTAINING BENEFICIAEIES. § 449 being the worthier title; 8 and such is still the rule in several of the states. 4 It is no longer so in England. 6 § 449. Meaning as Words of Purchase. When the words "heir," "heirs," "lawful heirs," or the like, are clearly used, not to define the estate given, but to desig- nate the persons who are to take, whether heirs of the testator or of some other person, they mean the person or persons who would by law succeed to the real estate of the person named if he died intestate, unless an inten- tion to express a different meaning appears from the con- text of the will and the circumstances of the case. 8 Sev- eral may take as heir or one as heirs; it is immaterial which number is used. 7 It is difficult to say how far the law governing the descent of the particular land controls in determining who take it by devise to heirs, but the point is worthy of notice. 8 § 450. Distributees and Next of Kin Excluded. Heirs are those upon whom the law casts the real estate im- mediately on the death of the ancestor intestate. Those entitled to personalty left intestate are not heirs. They are called next of kin or distributees under the statute. The right of the surviving spouse of the person named to share in or succeed to his intestate personalty does not 3 2 Bl. Com. 241. s It was held that devises of land 4 Post v. Jackson (1898), 70 Conn, held In borough English or gavelkind 283, 39 Atl. 151 ; Sedgwick v. Minot to heirs went to the common law heirs (1863), 6 Allen (88 Mass.) 171; Akers and not according to the custom; but v- Clark (1900), 184 III. 136, 56 N. E. devises to the testator's heirs of lands 296. descended to him from his mother went But where the estate is different they to his maternal heirs, not to his heirs would take by the will. Lord v. Bourne generally. 2 Bigelow's Jarman «*922- (1873), 63 Me. 368, 378; Dunlap v. 923. Fant (1896), 74 Miss. 197, 20 So. 874. . It would seem as though those who On this point there is an extended note would take under a devise to heirs in 75 Am. St. Rep. 154-159. should be determined by the law of the 5 3 and 4 Wm. IV, c. 106. testator's domicile at the time he 6 2 Bigelow's Jarman "905-934 ; wrote the will, not by the law of de- Forrest v. Porch (1897), 100 Tenn. scent of the state where the land is 391, 45 S. W. 676 ; Dukes v. Faulk situated. See ante §§ 433, 408 ; Lincoln (1892), 37 S. Car. 255, 16 S. E. 122, v Perry (1889), 149 Mass. 368, 21 N. 34 Am. St. Rep. 745 ; Merrill v. Pres- E. 671, 4 L. R. A. 215 ; Richards v. ton (1883), 135 Mass. 45; Wallace v. Miller (1872), 62 111. 417; Proctor v. Minor (1889), 86 Va. 550, 10 S. E. 423. Clark (1891), 154 Mass. 45, 27 N. H. 7 Mounsey v. Blamire (1828), 4 Rus- 673, 12 L. R. A. 721. sell Ch. (4 Eng. Ch.) 384. § 451 WILLS. 294 entitle such spouse to take under a gift to the heirs of such person. 9 Heirs are those who would take by descent. Dower and curtesy are not by descent but by purchase, initiate and indefeasible before death. These do not entitle either spouse to take under a gift to the heirs of the other. 10 But where the statutes make any part of the intestate lands descend to the surviving spouse, such spouse is thereby made heir, and in such cases and proportion entitled under a gift by will to the heirs of the other; 11 and where gifts of personalty to heirs are construed to mean to distributees the surviving spouse takes the usual share. 12 §451. Peculiar Uses of "Heirs"— of Living Per- son. This presumption that in a gift to heirs the word is used in its legal sense yields readily when the context and circumstances manifest a different intention. The decisions holding that a different intention is manifested are very numerous and far from uniform; but a few instances may be instructive. Gifts to the heirs of the living are void for uncertainty, since the living have no heirs; 13 but if the court can find anything indicating that it was intended that the gift might take effect while the one named as ancestor lived, the word would be sufficient to designate those who would be heirs if he were dead when the gift took effect. 14 9 Mason v. Baily (1888), 6 Del. Ch. 12 Boyd's Estate (1901), 199 Pa. St. 129, 14 Atl. 309 ; Wilkins v. Ordway 487, 49 Atl. 297. (1879), 59 N. Ham. 378, 47 Am. Rep. 13 2 Bigelow's Jarman "915-920 215; Lord v. Bourne (1873), 63 Me. Campbell v. Rawdon (1858), 18 N. Y. 368, 379; Bailey v. Bailey (1872), 25 412; Clark v. Mosely (1845), 1 Rich Mich. 185. Eq. (S. Car.) 396, 44 Am. Dec. 229. 10 Ivin's Appeal (1884), 106 Pa. St. 11 Barber v. Pittsburg, etc., Ry. Co 176, 51 Am. Rep. 516; Dodge's Ap- (1896), 166 U. S. 83, 108, 17 S. Ct. peal (1884), 106 Pa. St. 216, 51 Am. 488; Healy v. Healy (1898), 70 Conn Rep. 519. 467, 39 Atl. 793; Knight v. Knight 11 Lavery v. Egan (1887), 143 Mass. (1857), 3 Jones Eq. (56 N. Car.) 167 389, 9 N. E. 747; Proctor v. Clark Lott v. Thompson (1891), 36 S. Car (1891), 154 Mass. 45, 27 N. E. 673, 38, 15 S. E. 278; Goodwright d. Brook 12 L. R. A. 721; Richards v. Miller tag v. White (1774), 2 Wm. Bl. 1010 (1872), 62 111. 417; Rawson v. Raw- Canfleld v. Fallon (1899), 43 N. Y. son (1869), 52 111. 62; Weston v. App. Div. 561, 57 N. Y. S. 149, af Weston (1882), 38 Ohio St. 473; Dur- firmed 162 N. Y. 605. bin v. Redman (1894), 140 Ind. 694, If there is a preceding estate this 40 N. E. 133. may be unnecessary ; Baer v. Forbes (1900), 48 W. Va. 208, 36 S. E. 364. 295 ASCERTAINING BENEFICIAEIES. §452 §452. Qualifying Words Added. If qualifying words are added, such as "heirs should he have any," 15 "heirs now living," "heirs then surviving," 19 "heirs resident in the state," 17 "first heir male," 18 "heirs other than those hereinbefore mentioned," 19 and the like, the general heirs are excluded in favor of those answering the description; and they take though they could not take by descent at all, either because someone else stands closer, or for some other reason. 20 § 453. Limited by Context and Extrinsic Facts. The context and circumstances may indicate that by a gift to heirs others than the real heirs were intended to take. 21 For example, when it appears that the will was not made to change the succession, but to relieve his representa- tive from giving bond for half a million dollars, and is Snider v. Snider (1899), 160 N. X. 151, 54 N. E. 676, 5 Pro. E. A. 464. 16 Wood v. Bullard (1890), 151 Mass. 325, 25 N. B. 67, 7 L. R. A. 304 ; Proctor v. Clark (1891), 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721. 17 There being no heirs so resident was held to be a gift to the legatees under the will, except the corporations. Graham v. DeYampert (1894), 106 Ala. 279, 17 South. 355. is Who should take under a devise to the first male heir, all the children being females and one of the younger having died first leaving a. son born after the son of an elder sister was elaborately discussed in Doe d. Winter v Perratt, first by the king's bench in 1826, 5 Barn. & C. 48, 11 E. C. L. 363 ; then by the house of lords in 1833, 3 Moore & S. 586, 9 CI. & Pin. 606, 10 Bing. 198, 25 E. C. L. 92 ; and again by the house of lords in 1843, 6 Man. & Gr. (46 E. C. L.) 314. lQMinot v. Harris (1882), 132 Mass. 528, who in this case were the only heirs. See also Sharpleigh v. Sharpleigh (1899), 69 N. H. 577, 44 Atl. 107; Plummer v. Shepherd (1902), 94 Md. 466, 51 Atl. 173; "my heirs herein named." 20 See the cases above cited. There are cases holding that no one can take unless he is heir and also answers the other specifications. See 2 Bigelow's Jarman "911-915 ; Dukes v. Faulk (1892), 37 S. Car. 255, 16 S. E. 122, 34 Am. St. Rep. 745. A gift to "my heirs" was held to be a good devise to the collateral heirs of the testator, who could take land in the state by purchase, but by reason of alienage were not permitted to take by descent. Furenes v. Severtson (1897), 102 Iowa 322, 71 N. W. 196. Centra: Cosgrove v. Cosgrove (1897), 69 Conn. 416, 422, 38 Atl. 219. "Heirs capable of inheriting" was held to mean children as used in a de- vise over in case of death without heirs capable of inheriting, so that the gift overtook effect though the first devisee left a husband. Durfee v. MacNeil (1898), 58 Ohio St. 238, 50 N. E. 721. 21 Hascall v. Cox (1882), 49 Mich. 435, 13 N. W. 807 ; Eawson v. Rawson (1869), 52 111. 62. Intent to exclude the widow of the testator from those to take under a gift to his heirs has been found from the fact that the estate given to the heirs was a remainder limited to take effect after a life estate in the same property to such widow. Rusing v. Rusing (1865), 25 Ind. 63; Bailey v. Bailey (1872), 25 Mich. 185; Swen- son's Estate (1893), 55 Minn. 300, 56 N. W. 1115. Contra: Ferguson v- Stuart (1846), 14 Ohio 140. §454 WILLS. 296 to prevent a sister being made administratrix. 22 Even where the entire subject of the gift is personalty, the word "heirs," unexplained by the context, according to the English and some American courts, must be taken in its proper sense, and not to give to the distributees. 23 But some courts hold that the nature of the property shows that distributees were intended. 24 Where prop- erty is limited over to the heirs of a person by way of substitution for him if dead or after his life estate therein, it is generally held that he is the principal ob- ject of the testator's bounty, and the word heirs is to be construed to mean those who would succeed to the property according to its nature; and though consisting of land and goods, the land goes to the heirs and the goods to the distributees under the statute. 25 § 454. Family. Gifts to a person's family have been held void for uncertainty; 26 but the courts are inclined 22Lawton v. Corlles (1891), 127 N. f. 100, 27 N. B. 847. 28 Mounsey v. Blamire (1828), 4 Russell Ch. (4 Eng. Ch.) 384; Lord v. Bourne (1873), 63 Me. 368, 18 Am. Rep. 234; Rnggles v. Randall (1897), 70 Conn. 44, 38 Atl. 885. If the subject of the gift is part land and part personalty given In a mass it would be all the more difficult to And that distributees or next of kin were intended to take the personalty. For- rest v. Porch (1897), 100 Tenn. 391, 45 S. W. 676 ; Fabens v. Fabens (1883), 141 Mass. 395, 5 N. B. 650. Many cases on this subject are re- viewed by Lord St. Leonards in the leading case of DeBauvoir v. De- Bauvoir (1852), L. R. 3 H. L. Cas. 524. See also Olney v. Lovering (1897), 167 Mass. 446, 45 N. E. 766; Allison v. Allison (1903), — Va. — , 44 S. E. 904, 910, reviewing several cases. But even then it yields to a manifest intent. Lawrence v. Crane (1893), 158 Mass. 392, 33 N. E. 605. "Heirs and Representatives" was held to mean land to heirs and goods to next of kin. Howell v. Gifford (1903), — N. J. Eq. — , 53 Atl. 1074. Conversion. As to the effect of directions to convert, see Merrill v. Preston (1883), 135 Mass. 451. 24 White v. Stanfleld (1888), 146 3. 424, 434, 15 N. E. 919; Lee v. Baird (1903), 132 N. Car. 755, 44 S. E. 605; Brothers v. Cartwright (1855), 2 Jones Eq. (55 N. Car.) 133, 64 Am. Dec. 563 ; Tuttle v. Woolworth (1901), 62 N. J. Eq. 532, 538, 50 Atl. 445; Evan's Estate (1893), 155 Pa. St. 646, 26 Atl. 739; Fidelity T. & G. Co., Matter of (1901), 57 App. Div. N Y. 532, 68 N. T. S. 257. See also Montignani v. Blade (1895), 145 N. Y. Ill, 122, 39 N. E. 719. 25Keay v. Boulton (1883), 25 Ch. Div. 212; Fabens v. Fabens (1886), 141 Mass. 395, 5 N. B. 650; Neely's Estate (1893), 155 Pa. St. 133, 25 Atl. 1054; Ashton's Estate (1890), '134 Pa. St. 390, 19 Atl. 699. "That the testator means 'child' by the word 'heir' is manifested by his reference to 'the parent's' undivided part." Dawson v. Schaefer (1894), 52 N J. Eq. 341, 345. 26 Doe d. Hayter v. Joinville (1802), 3 East 172; Tolson v. Tolson (1838), 10 Gill & J. (Md.) 159; Harper v. Phelps (1851), 21 Conn. 257, 269. A Legacy for the Support of u, Man and His Family is charged with a trust in favor of the family which cannot be defeated by either him or his creditors. White's Exrs. v. White (1857), 30 Vt 297 ASCEETAINING BENEFICIAEIES. §454 to sustain them if possible. Family is a flexible word, and may include children only, which Mr. Jarman says is the construction which must be given in the absence of peculiar circumstances or context to give it another; 27 or it may include all persons living in the same house- hold as one assembly. It may mean «hildren, wife and children, blood relations, or members of the domestic circle, according to the context and circumstances. 28 Children who have ceased to be members of the house- hold and have made homes of their own are included 29 or excluded, 30 according to the circumstances of the fam- ily and the context of the will. Prima facie, illegitimate children in the household are included, 31 stepchildren excluded. 32 Children of deceased children have been excluded, 33 but probably would generally be admitted to their parent's share. 34 The person to whose family the gift is made does not take unless expressly included. 35 338; Chase v. Chase (1861), 2 Allen (84 Mass.) 101. Contra: Warner v. Rice (1886), 66 Md. 436, 8 Atl. 84; Honaker v. Duff (1903), — Va. — , 44 S. E. 900, 904. 27 2 Bigelow's Jarman *941. To the Bame effect see Pigg v. Clarke (1876), 3 Ch. Div. 672, 45 L. J. Ch. 849, 24 W. E. 1014; Phillips v. Ferguson (1888), 85 Va. 509, 8 S. B. 241, 1 L. R. A. 837 ; Whelan v. Reilly (1869), 3 W. Va. 597, 610. A gift of residue "to the surviving members of my brothers and sisters families" was held not to include grand- children of a deceased brother or sister, the grandchildren's parents having died before the will was made. Hoadly v. Wood (1899), 71 Conn. 452, 42 AtL 263. 28 Spencer v. Spencer (1844), 11 Paige Ch. (N. Y.) 159; McCullough v. Gilmore (1849), 11 Pa. St. 370. 29 Townsend v. Townsend (1892), 156 Mass. 454, 31 N. B. 632; Cros- grove v. Crosgrove (1897), 69 Conn. 416, 38 Atl. 219. 30 Wood v. Wood (1893), 63 Conn. 324, 28 Atl. 520; Bradlee v. Andrews (1884), 137 Mass. 50. A gift for the "support of himself and family" was held to include his children only while living together as part of his household. Phelps v. Phelps (1887), 143 Mass. 570, 574, 10 N. E. 452. A gift in trust for the benefit of the testator's son and his family was held to include those who would le- gally participate in the testator's bounty. St. John v. Dann (1895), 66 Conn. 401, 34 Atl. 110. 31 Lambe v. Eames (1871), L. R. 6 Ch. Ap. 597, 25 L. T. (n. s.) 175, 40 L. J. Ch. 447, 19 W. R. 659— A. C. 32 Bates v. Dewson (1880), 128 Mass. 334. 33Pigg v. Clarke (1876), 3 Ch. Div. 672, 45 L. J. Ch. 849. 24 W. R. 1014 ; Gregory v. Smith (1852), 9 Hare (41 Eng. Ch.) 708; Brett v. Donaghe (1903), — Va. — , 45 S. E. 324. 34 Townsend v. Townsend (1892), 156 Mass. 454, 31 N. E. 632 ; Taylor v. Watson (1872), 35 Md. 519; Batters- by's Trust (1896), 1 L. R. Ir. 600. Illegitimate Children. A power to appoint to members of the testator's family was held well exercised in favor of an illegitimate son of his son. Lambe v. Eames (1871), L. R. 6 Ch. Ap. 597, 25 L. T. 175, 40 L. J. Ch. 447, 19 W. R. 659— A. C. 35 Silsby v. Sawyer (1888), 64 N. H. 580, 15 Atl. 601 ; Mulqueen's Trust (1881), 7 L. R. Ir. 127; Gregory f. Smith (1852), 8 Hare (41 Eng. Ch.) •708. § 455 WILLS. 298 The man being the head of the house, a gift to his family has been held to include his wife or widow. 36 A gift to a woman's family might not so readily include her husband. 37 A person's family does not include his brothers, sisters, or parents, if he has children of his own. 38 But when the person to whose family the gift was made died without issue and unmarried, it was held that the gift did not fail -for uncertainty, family being equivalent to kindred or relations; 39 and in that case the personalty would go to the distributees under the stat- ute, the real estate to the heirs. 40 The modern tendency is to a division per stirpes, excluding issue of living children. 41 §455. Relatives. To prevent gifts to "relatives" and "relations" of a person being void for uncertainty, all men being related, it has long been settled, that only those who would succeed to the person's goods under the statute of distribution are included. 42 It is so though the gift included land, 43 or was of land only. 44 Prima facie, only blood relations are embraced, even husband or wife being excluded; 45 but the context and circum- 36 Widow Included. Smith v. Greeley 40 Heek v. Clippenger (1847), 5 Pa. (1892), 67 N. H. 377, 30 Atl. 413; St. 385; Wright v. Atkins (1810), 17 Eradlee v. Andrews (1884), 137 Mass. Yes. 255. 50; Bates v. Dewson (1880), 128 Mass. 41 Townsend v. Townsend (1892), 334. 156 Mass. 464, 31 N. E. 632; Walker Contra: Hutchinson, In re (1878), v. Griffin (1826), 24 U. S. (11 Wheat.) 8 Ch. Div. 540, 39 L. T. 86, 26 W. E. 375. 904. 42 Roach v. Hammond (1715), Finch Held that the widow was not en- Prec. Ch. 401; Thomas v. Hole (1734), titled because no gift was made to her Cas. Tem. Talbot 251. husband, he being dead. Hoadly v. 43 McNeillege v. Barclay (1823), 11 Wood (1899), 71 Conn. 452, 42 Atl. S. & E. (Pa.) 103; Pyot v. Pyot 263. (1749), 1 Ves. Sr. 335. It has been held that after the death 44 Doe d. Thwaites v. Over (1808), of all the children without issue, and 1 Taunton 263. But see Handley v. the sale of the homestead, the widow Wrightson (1883), 60 Md. 198; Galla- was no longer entitled to the provision gher v. Crooks (1892), 132 N. Y. 338, for the support of her husband and 343, 30 N. B. 746. his family. Bowdwitch v. Andrew 45 Storer v. Wheatley (1845), 1 Pa. (1864), 8 Allen (84 Mass.) 339. St. 506, In which the bequest was to 37 Wright v. Atkins (1810), 17 Ves. the daughter, and in case of her death 255; Heck v. Clippenger (1847), 5 Pa. to the testator's relatives; Worsley v. St. 385. Johnson (1753), 3 Atkyns 758, in 38 Wood v. Wood (1843), 3 Hare (25 which the fee was devised to the wife Eng. Ch.) 65. for life remainder to the testator's 39 Cruwys v. Column (1804), 9 Ves. relatives. 319. Statutes as to Lapse. Statutes pro- 299 ASCEETAINING BENEFICIAKIES. §456 stances may suffice to include illegitimate blood and rela- tives by marriage. 46 When a power to apportion among relatives is given, an appointment which gives any to persons who would not take under the statute is void, 47 unless discretion to select is also given. 48 The fact that the singular number is used, 49 or that words such as near, 50 poor, 51 or blood, 52 are prefixed to the word rela- tions does not affect the meaning at all; but specifica- tion of surname or residence would restrict. 53 § 456. Next of Kin. 54 As next of kin has a certain meaning, viz, nearest blood relation, no resort to the stat- ute of distribution is necessary to save the gift from fatal uncertainty; and, therefore, it is held except in New Hampshire, 55 that nearest blood relations take un- der such gifts, to the exclusion of the husband or wife vidlng that devises and bequests to the testator's relatives shall not lapse on the death of the beneficiary in the life of the testator, are held not to ex- tend to gifts to the testator's wife, husband or other relative by marriage only. See post § 674. Designation of a wife as a bene- ficiary, under a provision as to benefit societies restricting benefits to rela- tives, was upheld in Bennett v. Van- Riper (1890), 47 N. J. Bq. 563, 22 Atl. 1055, 24 Am. St. Rep. 416, 14 L. R. A. 342. 46 Hall v. Wiggin (1891), 67 N. Ham. 89, 29 Atl. 671 ; Jodrell, In re (1889), 44 Ch. Div. 590, 59 L. J. Ch. 538, 63 L. T. 15, 38 W. R. 267— A. C. "By blood or marriage" was held to mean those of blood who take under the statute and spouses of such. De- visme v. Mellish (1800), 5 Yes. 529. 47Varrell v. Wendell (1846), 20 N. Ham. 431; Pope v. Whitcombe (1810), 3 Meriville 689. 48 Huling v. Fenner (1870), 9 R. I. 410; Drew v. Wakefield (1865), 54 Me. 291 ; Portsmouth v. Shackford (1866), 4B N. H. 423; Spring v. Biles (1784), 1 Term 435 notes. But failure to exercise the power does not defeat the devise. The court will execute it. Meldon v. Devlin (1898), 31 N. T. App. Div. 146, 53 N. T. S. 172. 49Pyot v. Pyot (1749), 1 Ves. Sr. 335. bo Handley v. Wrightson (1883), 60 Md. 198; Edge v. Salisbury (1749), Ambler 70. "Nearest Relations" is held to re- strict. Smith v. Campbell (1815), 19 Ves. 400, Cooper C. C. 275 ; Ennis v. Pentz (1855), 3 Bradford Sur. (N. Y.) 382. BiMcNeillege v. Galbraith (1822), 8 S. & R. (Pa.) 43, 11 Am. Dec. 572. But see Burnsden v. Woolridge (1765), 1 Dick. 380, Ambler 507. Unless given to establish a charity. White v. White (1802), 7 Ves. 423. 52 Cummings v. Cummings (1888), 146 Mass. 501, 16 N. E. 401. 53 Pyot v. Pyot (1749), 1 Ves. Sr. 335; Carpenter v. Bott (1847), 15 Simons (38 Eng. Ch.) 606; Gallagher v. Crooks (1892), 132 N. Y. 338, 30 N. E. 746. 54 See extended note on next of kin in 15 L. R. A. 300. 65 Where gifts to next of kin without more explanation are taken to mean those who would take under the stat- ute. Pinkham v. Blair (1876), 57 N. Ham. 226, 244. The statutory pro- portion of distribution was assumed, in absence of direction. Dunlap's Appeal (1887), 116 Pa. St. 500, 9 Atl. 936. §457 WILLS. 300 of the person named, 56 and so as to prefer a surviving brother to the exclusion of the children of a deceased brother or sister, 57 though each of these would have been entitled to a share under the statute of distribution. Whether reference to the statute would give a broader effect to the gift is not agreed. 58 "Next of kin as, accord- ing to the statute of distributions, their personal estates would be divided," was recently held insufficient. 59 Half blood shares with whole blood of the same degree and is preferred to whole blood of remoter degree. 60 § 457. Representatives. 61 A gift to one and his rep- resentatives goes to him absolutely, and does not enable his representatives to take as purchasers. 62 It is like a gift to one and his heirs. 63 But when gifts have been made to one and in case of his death to his representa- tives, or to the representatives without any gift to the 66Devoe, In re (1902), 171 N. Y. 281, 63 N. B. 1102, 57 L. R. A. 536; Keteltas v. Keteltas (1878), 72 N. T. 312, 28 Am. Rep. 155 ; Haraden v. Lar- rabee (1873), 113 Mass. 430; Tiffany v Emmet (1902), 24 R. I. 411, 53 Atl. 281; Wetter t. Walker (1878), 62 Ga. 142; Garrick v. Camden (1807), 14 Ves. 372. See also : Kenlston v. Mayhew (1897), 169 Mass. 166, 47 N. E. 612 ; Townsend v. Radcliffe (1867), 44 111. 446. B7 Swasey v. Jaques (1887), 144 Mass. 135, 10 N. E. 758 ; Everett's Es- tate (1900), 195 Pa. St. 450, 46 Atl. 1; Brandon v. Brandon (1819), 3 Swanst. 312, 2 Wlls. Ch. 14. Nephews and nieces take to the ex- clusion of children of deceased nephews and nieces. Redmond v. Burroughs (1869), 63 N. Car. 242. In Withy v. Mangles (1843), 10 CI. & Fin. 215, the house of lords held that named share equally, because In the same degree of kindred. "All my blood kind in La. and Tex." was held to include^ half brothers, nieces, and grandnieces per capita. Lusby v. Cobb (1902), 80 Miss. 715, 32 South. 6. An only surviving sister being sole next of kin and expressly excluded those otherwise next of kin take. Everett's Estate (1900), 195 Pa. St.. 450, 46 Atl. 1. B8 So held in Duffy v. Hargan (1901), 62 N. J. Eq. 588, 50 Atl. 678, affirmed on appeal (1902), 63 N. J. Eq. 802, 52 Atl. 1131. Se'e also Thompson's Trusts (1878), 9 Ch. Div. 607. 69Devoe, In re (1902), 171 N. T. 281, 63 N. E. 1102, 57 L. R. A. 536. To the same effect see : Wetter v. Walker (1878), 62 Ga. 142; Cholmondeley v. Ashburton (1843), 6 Beav. 86; Tiffany v. Emmet (1902), 24 R. I. 411, 53 Atl. 281. eo Cotton v. Scarancke (1815), 1 Madd. 35; Collington v. Pace (1662), 1 Ventr. 413, 424. See also Lusby v. Cobb (1902), 80 Miss. 715, 32 South. 6. See also ante § 444. 61 See notes 6 Pro. R. A. 474 ; 3 Pro. R. A. 388. 62 Williams Exrs. (6 Am. Ed.) 1216 ; Williams v. Knight (1893), 18 R. I. 333, 27 Atl. 210. But see Lyon v. Fi- delity Bank (1901), 128 N. Car. 75, 38 S. E. 251, 6 Pro. R. A. 472. A remainder to A or his representa- tives vests absolutely In A on the death of the testator. Chasy v. Gawdy (1887), 43 N. J. Eq. 95, 9 Atl. 580. And see post § 683 ; and Brent v. Washington (1868), 18 Gratt. (Va.) 526, 532. es See ante § 448, and post J 682. 301 ASCERTAINING BENEFICIARIES. § 458 deceased, courts have been much perplexed as to who should take. "Legal representatives" or "personal representatives" is no clearer. 64 Those who happened to be the executors or administrators of the person named have claimed for their personal benefit; but the prob- abilities are so strong against an intention to select bene- ficiaries by such chance, that such an interpretation could seldom be allowed. 65 As used in wills, representatives means primarily executors and administrators; and such gifts have often been held to go to them in their official capacity. 66 But this results in appropriating the property, like other property of the person named, first to pay his creditors, 67 then the legatees under his will, 68 and giving only what is left to his next of kin; which would seldom if ever please the original giver. There- fore courts have been much inclined to hold that the beneficiaries intended by such gifts were those who would take from the person named under the statute of distributions. 69 A devise of land to the representatives of a person named has been held to mean his heirs. 70 § 458. Executors and Administrators. Gifts to ex- 64 See King v. Cleaveland (1859), 4 750; Casey v. Lock wood (1902), — E. DeG. & J. (61 Eng. Ch.) 477. I. — , 52 AH. 803; OIney v. Lovering 66 See Davies v. Davies (1887), 55 (1897), 167 Mass. 446, 45 N. E. 766; Conn. 319, 324, 11 Atl. 500, and cases Rivenett v. Bourquin (1884), 53 Mich, cited. But they were held entitled 10, 18 N. W. 537; Howell v. Gifford beneficially in Evans v. Charles (1792), (1903), — N. J. Eq. — 53 Atl. 1074; 1 Anst. 128. Gibbons v. Pairlamb (1856), 26 Pa. St. 66 Turner, In re (1865), 2 Dr. & 217; Clark v. Cammann (1899), 160 Sm. 501, 34 L. J. Ch. 660, 12 L. T. (N. N. Y. 315, 54 N. E. 709, 5 Pro. E. A. S.) 695, 13 W. E. 770, 5 Am. L. Eeg. 72; King v. Cleaveland (1859), 4 DeG. (n. s.) 234; Crawford's Trusts (1854), & J. (61 Eng. Ch.) 477. 2 Drewry 230 ; Lyon v. Fidelity Bank A power to a trustee and his legal (1901), 128 N. Car. 75, 38 S. E. 251, representatives cannot he executed by 6 Pro. E. A. 472 ; Halsey v. Paterson his administrator, but only by bis suc- (1883), 37 N. J. Eq. 445; Tarrant v. cessor. Warnecke v. Lembca (1873), Backus (1893), 63 Conn. 277, 28 Atl. 71 111. 91, 22 Am. Eep. 85. 4g. Little importance is attached to the 67 See Briggs v. Walker (1898), 171 fact that the singular (representative) U. S. 466. la used. The next of kin may still be 68 As in Cox v. Curwen (1875), 118 entitled. So held in Bates, Petitioner Mass. 198. (1893), 159 Mass. 252, 34 N. E. 266. 69 As will be seen by observing the "Dying without legal representa- slight circumstances on which it was tives" means without lineal descend- so held in the following cases : Davies ants. Staples v. Lewis (1898), 71 v. Davies (1887), 55 Conn. 319, 11 Atl. Conn. 288, 41 Atl. 815. 500; Connecticut T. & S. D. Co. v. to Lesieur's Estate (1903), — Pa. St Hollister (1901), 74 Conn. 228, 50 Atl. — , 54 Atl. 579. §459 WILLS. 302 ecutors and administrators do not go to them beneficially, unless clearly so intended, 71 nor usually in trust for the next of kin, 72 but as a part of the estate. § 459. Under the Intestate Laws. Gifts of residue are often made "to those who would take under the intestate laws" from the testator or some other person, which makes the statute a part of the will. 73 § 460. Servants. Gifts to servants, unexplained, in- clude only those directly and regularly employed. 74 § 461. Other Classes. Questions have been made as to the meaning of many ,other expressions to designate beneficiaries, which are not sufficiently common to merit discussion. 75 71 As in Halsey v. Convention P. E. C. (1892), 75 Md. 275, 285, 23 Atl. . 781; Chassaing v. Durand (1897), 85 Md. 420, 37 Atl. 362 ; Wallis v. Taylor (1836), 8 Simons 241, 11 Eng. Ch. 417. A gift to trustees for faithful per- formance of the trust fails with the trust. Batchelder, In re (1888), 147 Mass. 465, 18 N. B. 225. 72Atty. Gen. v. Malkin (1846), 2 Phillips (22 Eng. Ch.) 64; Kerrigan v. Tabb (1898, N. J. Eq.) 39 Atl. 701. But the next of kin under the statute have been held entitled on very slight circumstances. See Albert v. Albert (1887), 68 Md. 353, 370, 12 Atl. 11; Bullmer v. Jay (1830), 4 Simons 48, 6 Eng. Ch. 26, on appeal (1834), 3 Mylne & K. 197, 8 Eng. Ch. 345. In the leading case of Palins v. Hills (1834), 1 Mylne & K. 470, 7 Eng. Ch. 125, it was held that the next of kin were entitled, as against the legatees under the will of the person named, because it could not have been intended that he should have'the power to dispose of the property. 73McGovran's Estate (1899), 190 Pa. St. 375, 42 Atl. 705; Barr v. Weaver (1902), 132 Ala. 212, 31 So. 488; Kelly v. Reynolds (1878), 39 Mich. 464, 33 Am. Rep. 418. Under such a gift the widow would take her share though she had elected to take under a previous bequest in lieu of dower. Mersereau, Matter of (1902), 38 N. T. Misc, 208, 77 N. T. S. 329. 74Metcalf v. Sweeney (1891), 17 R. I. 213, 21 Atl. 365, 33 Am. St. Rep. 864; Thrupp v. Collertt (1858), 26 Beav. 147. The coachman furnished by the liveryman from whom the testator hired his carriages is not included. Chilcot v. Bromley (1806), 12 Ves. 114. "Servants living with me" was held to include the coachman living with his family over the stable of the testatrix, and occasionally waiting at her table. Howard v. Wilson (1832), 4 Hagg. Ece. 107. But see Ogle v. Morgan (1852), 1 DeG. M. & G. (50 Eng. Ch.) 359. Servants "at my homestead" was held to mean at the dwelling house, excluding one who worked on the grounds about the homestead. Frazer v. Weld (1901), 177 Mass. 513, 59 N. E. 118. 76 "Deceased legatee." See : Hills v. Barnard (1890), 152 Mass. 67, 25 N. E. 96, 9 L. R. A. 211. "Friends." A provision that friends of the testatrix owing her shall not be sued for two years is in the nature of a legacy and one claiming benefit must show that he is intended and creditors not prejudiced. Thorn v. Hall, 41 N. Y. S. 1054. A testator devised lands to his wife for life, to revert to his friends on her death or marriage; held that the gift over was not void for uncertainty, but went to his heir at law. Coogan v. Hayden (1879), 4 L. E. Ir. 585. 303 ASCERTAINING BENEFICIARIES. § 462 3. DESCRIPTION REFERS TO WHAT TIME." § 462. Forecast. Having ascertained the usual mean- ing of the terms by which the persons to take are most frequently designated, it should be observed that one person may answer the description at one time and an- other at another; and in the case of classes, individuals are continually entering and dropping out of each class. It is proposed now to inquire as to when the description is to be applied. A. Gifts to Individuals. § 463. A Gift to an Individual by Name would not en- able another of the same name to take though the in- tended donee had died before the testator. 77 § 464. When a Gift is Made to a Person not Named but Described by his Relation to someone designated, it is presumed that the testator referred to the individual, if there was one, who answered the description when the will was made; and therefore no one else could take by reason of answering the description afterwards. Such has been held of gifts to "my -beloved wife," 78 "the husbands of my said daughters," 79 "John's "Legatees" includes all to whom gifts er. Wellington v. Drummer (1898), are made in the will. Logan, Matter of 69 N. Hamp. 295, 40 Atl. 392. (1892), 131 N. Y. 456, 30 N. B. 485. T6 See extended note 73 Am. St. Rep. In re Whiting (1900), 33 N. Y. Misc. 413-440. 274, 68 N. T. S. 733. 77 1 Bigelow's Jarman *323. Or had A gift of $2,500 to each cousin "not a different name : Hawkins v. Garland remembered by a legacy" was held to (1882), 76 Va. 149, 44 Am. Rep. 158, entitle cousins who had been given 3 Am. Pro. R. 550. nothing but a keepsake. White v. A testator haying given 1500Z to his Mass. Inst Tech. (1898), 171 Mass. son Joseph, made a codicil after the 84, 98, 50 N. E. 512. See also Pentz's death of Joseph, reciting that as it Estate, 200 Pa. St. 2, 49 Atl. 361 ; had pleased God to give him another Kenan v. Graham (1903), — Ala. — , son Joseph, he confirmed the will; 33 So. 699. which the court held to entitle the "Unmarried" was held to include second Joseph to the bequest given to widows in the following : Oakley, Mat- the first. Perkins v. Micklethwaite ter of (1902), 67 App. Div. 493, 74 N. (1714), 1 P. Wms. 274, Abbott 372. Y Supp. 206, affirmed without opinion 78 Garratt v. Niblock (1830), 1 Rus- in 171 N. T. 652 ; Conway's Estate sell & M. 629. (1897), 181 Pa. St. 156, 37 Atl. 204. 79 Bryan's Trusts (1851), 2 Sim. Ch. See also 2 Wms. Exrs. (6 Am. ed.) (n. s.) 103, 21 L. J. Ch. 7, 8 Eng. L. 1183, citing English cases. & Eq. 253; Franks v. Brooker (1860), "Widow" held not to include widow- 27 Beav. 635. § 465 WILLS. 304 wife," 80 and even "John's widow," 81 though John was then living and his wife would not be his widow till his death. But a provision for a son and his wife for life and then to his children is held to include every wife, though he had one at the time, for the limitation over, which would include the children of any wife, shows an inten- tion to assist all having a natural claim on the son. 82 § 465. Gifts to the Husbands and Wives of Persons not Married when the will was made have been held to entitle any person answering the description when the gift was to take effect in point of enjoyment; 83 but when this rule has been invoked to avoid the gift under the rule against perpetuities, it has been held that only the person answering the description at the death of the testator was entitled, 84 though part of the class were then still unmarried. 85 §466. Gifts to the Oldest, Second, or Other Child of a person is presumed to refer to the order of birth, unless there is something to show a different intention. 86 soVanSyckel v. VanSyckel (1893), 847, 58 L. J. Ch. 80, 37 W. E. 91; 51 N. J. Eq. 194, 26 Atl. 156; Bore- Bullmore, In re (1883), 22 Ch. D. 619, ham v. Bignall (1850), 8 Hare (32Eng. 48 L. T. 309, 52 L. J. Ch. 456, 31 W, Ch.) 131, 19 L. J. Ch. 461, 14 Jur. 265. E. 396. si Beers v. Narramore (1891), 61 When defect of title was set up by Conn. 13, 22 Atl. 1061 ; Anshutz v. a purchaser from L's husband to avoid Miller (1876), 81 Pa. St. 212. the sale, the limitation being to L for Contra: Swallow v. Swallow (1876), life and remainder to her husband, the 27 N. J. Eq. 278. title was held good though L was sin- 82 Perry v. Perry (1901), — Ky. — , gle when the will was made, and her 60 S. W. 855, 6 Pro. E. A. 433 ; Swal- husband died before suit. Eadford v. low v. Swallow (1876), 27 N. J. Eq. Willis (1871), L. E. 12, Eq. Cas. 105, 278; Cogan v. McCabe (1898), 23 N. 25 L. T. (n. s.) 720, 20 W. E. 132. Y. Misc. 739, 52 N. T. S. 48; Drew v. 84 Dean v. Mumford (1894), 102 Drew (1899), 1 Ch. D. 336, 79 L. T. Mich. 510, 61 N. W. 7. 656, 47 W. E. 265; Lyne's Trust 85 VanBrunt v. VanBrunt (1888), (1869), L. E. 8 Eq. Cas. 65, 38 L. J. Ill N. T. 178, 19 N. E. 60. Ch. 471, 17 W. E. 840. 86 2 Bigelow's Jarman *1071 ; Me- 83 Peppin v. Bickford (1797), 3 Ves. redith v. Treftry (1879), 12 Ch. D. 170, 570; Nash v. Allen (1889), 42 Ch. Div. 48 L. J. Ch. 337, 27 W. E. 406. 54, 61 L. T. 193, 58 L. J. Ch. 754, 37 A devise to a daughter for life, re- W. E. 646; Mason v. Mason (1870), mainder to her second son, adding that Ir. E. 5 Eq. 288. the first would be provided for by law, But even a provision for "any" hus- was held to entitle the second son who band or wife of the person named became eldest by the death of the first would not entitle one who had been before the birth of the second. Traf- divorced from that person. Morrieson, ford v. Ashton (1710), 2 Vern. Ch. 660. In re (1888), 40 Ch. D. 30, 59 L. T. 305 ASCEKTAINING BENEEICIABIES. §467 B. Gifts to Classes. a. AS TO PERSONS INCLUDED. §467. When Class Determined Before Death. In cases of gifts to classes, the rule that the will speaks from the death of the testator would seem to exclude those dying before that time, 87 and include those born after the will was made, 88 unless the words of the will clearly show a different intention. 89 §468. Gifts to Class to be Enjoyed Immediately. 90 If a gift is to be enjoyed as soon as the testator dies all persons who do not answer the description till after that time are excluded, 91 unless the words of the will clearly 87 Martin v. Trustees (1896), 98 Ga. 320, 25 S. E. 522; Howland v. Slade (1891), 155 Mass. 415, 29 N. E. 631 ; White v. Mass. Inst. Tech. (1898), 171 Mass. 84, 98, 50 N. E. 512; Walker v. Johnston (18T4), 70 N. Car. 576; Logan v. Brunson (1899), 56 S. Car. 7, 33 S. E. 737. Many cases on this point are re- viewed in Downing v. Nicholson (1902), 115 Iowa 493, 88 N. W. 1064, 91 Am. St. Rep. 175. PROVISION IN WILL FOR DEATH. See post §§ 680-695. As to the effect on such cases of the statutes to prevent lapsing of legacies see post §§ 673-9. ss After Born Included. So in case of gifts to the children of the testator: Chase v. Lockerman (1840), 11 Gill & J. (Md.) 185, 35 Am. Dec. 277; Matchwick v. Cock (1798), 3 Ves. 609. , So as to gifts to children of another: Coggins v. Flythe (1893), 113 N. Car. 102, 116, 18 S. E. 96; Robinson v. Mc- Diarmid (1882), 87 N. Car. 455, 461; Dingley v. Dingley (1809), 5 Mass. 535; Ringrose v. Bramham (1794), 2 Cox Ch. 384. For example, a gift of $1,000 to the children of Z. T. Pash who then had two children born of the testator's niece, required payment of that sum to each of the five children born of a later marriage. Gray v. Pash (1892, Ky.), 66 S. W. 1026. Children Afterwards Adopted are not included. Russell v. Russell (1887), 84 Ala. 48, 3 South. 900. "Heirs of N," who died before the 20 testator, included those who had be- come N's heirs at the death of the testator, excluding those who had died before. Gold v. Judson (1852), 21 Conn. 616; Ruggles v. Randall (1897), 70 Conn. 44, 38 Atl. 885; Lancaster v. Lancaster (1900), 187 111. 540, 58 N. E. 462. as Words Limiting Class to Time of Writing. "To the surviving chil- dren, not knowing all their names," was held to limit the gift of those born at the date of the will. Morse v. Mason (1865), 11 Allen (93 Mass.) 36. "Said children now reside in Louisiana." Jones v. Hunt (1895), 96 Tenn. 369, 34 S. W. 693. "Heirs now living," of a person liv- ing when the will was made refers to and includes only those who would be heirs if he should then die. James v. Richardson (1688), 3 Keb. 832, T. Raym, 330, 2 Lev. 232, T. Jones 99, 1 Eq. Cas. Ab. 214, pi. 11, 1 Vent. 334, Poll. 457. "Descendants now living" excludes those born after the will was made. Crossly v. Clare (1761), 1 Amb. 397. A Qift to the School Fund of a Toivnnhip was held to be for the benefit of the territory forming the town when the will was made. Board of Ed. Fairfield v. Ladd (1875), 26 Ohio St. 210. 90 See note 73 Am. St. Rep. 414. Oi Nieces, etc. An immediate gift to nieces and nephews does not include those born after the death of the tes- tator. Ingraham v. Ingraham (1897), 169 111. 432, 468, 48 N. E. 561 ; Pierce §469 WILLS. 306 point to a later time to determine the class, 92 or there was no one then in existence answering the description. An immediate gift to the children of a person named who had no children at the testator's death goes as an executory devise or bequest to all children he may have at any time. 93 If the gift is to the heirs of a person who has no heirs, because still living, the courts are in- clined to find that heirs apparent or presumptive were intended. 94 §469. Reason of Exclusion Rule. "This rule, ex- cluding as it does from the class to be benefited any child v. Knight (1902), 182 Mass. 72, 64 K. E. 692. Children. An immediate gift to children and grandchildren does not in- clude those born after the death of the testator. Parker v. Churchill (1898), 104 Ga. 122, 30 S. B. 642; Wood v. McGuire (1854), 15 Ga. 202; Biggs v. McCarty (1882), 86 Ind. 352, 44 Am. Rep. 320; Shotts v. Poe (1877), 47 Md. 513, 28 Am. Eep. 485; Wyman v. Johnson (1900), 68 Ark. 369, 59 S. W. 250. But see Lynn v. Hall (1897), 101 Ky. 738, 43 S. W. 402, 72 Am. St. Eep. 439 ; Goodridge v. Schaefer (1902, Ky.), 68 S. W. 411. An immediate gift to "the children of my brothers" does not include chil- dren born after the testatrix's death, though the gift was a residue includ- ing a remainder after a life estate. Worchester v. Worchester (1869), 101 Mass. 128; Smith v. Smith (1894), 141 N. T. 29, 35 N. E. 1075. Contra: An- nable v. Patch (1825), 3 Pick. (20 Mass.) 360. Children and Grandchildren. A gift to children and grandchildren does not include grandchildren born after the death of the testator though no grand- children had yet been born. Ackerman v Ackerman (1901), 71 N. Ham. 55, 51 Atl. 252. In an old case a gift to children and their issue was held to let in afterborn issue. Cook v. Cook (1706), 2 Vern. Ch. 545. A residuary gift to grandchildren does not include those born after the testator's death, and all goes to one class, the property being land in pos- session not before mentioned, and per- sonalty after paying Income to one for life. Coventry v. Coventry (1865), 2 Drew. & Sm. 470, 13 L. T. (N. S.) 83, 13 W. R. 985. A devise to children of a son to be divided after the death of the son was held not to include afterborn chil- dren, because there was no preceding estate: Wise v. Leonhardt (1901), 128 N. Car. 289, 38 S. E. 892. The Use of the Words "All" or "children born or to be born" is not sufficient to change the rule. Thomas v. Thomas (1899), 149 Mo. 426, 51 S. W. Ill, 73 Am. St. Rep. 405, and the cases cited therein. Heirs. An immediate gift to "the heirs" of a residue goes to those an- swering the description at the death of the testator. Forrest v. Porch (1897), 100 Tenn. 391, 45 S. W. 676. Asylums created after the testator's death are not included in a gift to such described as in being though there were none. New Orleans v. Hardie (1891), 43 La. An. 251, 9 So. 12. 92 "My nephews and nieces that may be living at or after my decease" in- cludes those born after. Shull v. Johnson (1855), 2 Jones Eg. (55 N. Car.) 202. 93 Weld v. Bradbury (1715), 2 Vern. Ch. 705; Hutcheson v. Jones (1817), 2 Madd. Ch. 124. Contra: Smith v. Smith (1894), 141 N. Y. 29, 35 N. E. 1075. But if a Specified Sum Is given to each and there is no one then to take, it would seem that the whole gift fails, because it would be impossible to learn how much to reserve to make payment. Rogers v. Mutch (1878), 10 Ch. D. 25, 48 L. J. Ch. 133, 27 W. R. 131. si See ante § 451. 307 ASCEBTAINING BENEFICIAEIES. § 470 born after the period of distribution, may be explained by the attempt of the court to reconcile two inconsist- ent directions, viz, that the whole class should take and also that the fund should be distributed among them at a time when the whole class could not be ascertained. The rule, which was intended as a solution of the diffi- culty, may be said to be a cutting of the knot rather than an untying; and though it has been called a rule of convenience, must be very inconvenient to those chil- dren who may be born after the period of distribution. ' ' 95 The rule being thus based on the inconvenience which would result from suspending the distribution till the class would be complete, it will be seen that the rule applies whenever distribution would be interfered with by waiting, and does not apply if all could be included without delaying distribution. 96 § 470. Postponed Gifts to Heirs, Next of Kin, Rela- tives, Etc.— General Rule. There are certain classes which are as complete at one time as at any other, and yet continually changing in their membership; and therefore such classes are closed at the death of the testator though that may not be necessary to enable dis- tribution. Thus if there is a particular estate, or a specified event after which the property is to go to the heirs, 97 next of kin, 98 relations, 99 representatives, 1 or the 95 Wenmoth, In re (1887), 37 Ch. E. 692; Wyman v. Johnson (1900), D. 266, 57 L. J. Ch. 649, 57 L. T. 68 Ark. 369, 59 S. W. 250; Tuttle v. 709, 36 W. R. 409. To the same Wool worth (1901), 62 N. J. Eq. 532, effect see Andrews v. Partington 50 Atl. 443; Tucker's Will (1890), 63 (1791), 3 Brown Ch. 401; Mann v. Vt. 104, 21 Atl. 272, 25 Am. St. Rep. Thompson (1854), Kay Ch. 638; 743; Allison v. Allison (1903), — Storrs v. Benbow, 2 Mylne & K. 46, Va. — , 44 S. E. 904 ; Frith, In re 7 Eng. Ch. 254; Howland v. Howland (1901), 85 L. T. (Eng.) 455. (1858), 11 Gray (77 Mass.) 469. 9S Spink v. Lewis (1791), 3 Brown 96 Under the Civil Law it would seem Ch. 355; Keniston v. Mayhew (1898), that the class always closes at the 169 Mass. 166, 47 N. E. 612; Bell's death of the testator, afterborn never Estate (1892), 147 Pa. St. 389, 23 Atl. being allowed to take by direct sue- 577. cession. Sevier v. Douglas (1892), 99 Masters v. Hooper (1793), 4 44 La An 605, 10 South. 804. Brown Ch. 207; Cummings v. Cum- 97 Adams v. Lillibridge (1901), 73 mings (1888), 146 Mass. 501, 16 N. Conn. 655, 49 Atl. 21 ; Kellett v. Shep- E. 401. ard (1891), 139 111. 433, 28 N. E. 1 Greene v. Huntington (1900), 73 751; Abbott v. Broadstreet (1863), 3 Conn. 106, 46 Atl. 883, 5 Pro. R. A. Allen (85 Mass.) 587; Pierce v. 448. Knight (1902), 182 Mass. 72, 64 N. §471 WILLS. 308 like, of the testator or of any other person, still only those answering the description at the death of the testa- tor take, nnless the will manifests an intention that the class shall be ascertained at a later time, 2 or the statute makes all classes ascertainable at the time of distribu- tion. 3 Mere use of the future tense, "who shall be," is not enough to show a different intention. 4 § 471. When Particular Tenant is also Heir. When the person to whom the particular estate was given was the only person at the death of the testator answering the description of the class to which the estate over was given, the courts have frequently found from that fact an intention that the class should be ascertained at the termination of the particular estate and include all an- swering the description then; 6 but it is not enough that the person to whom the previous interest was given is a member of the class to which the estate over is given, 6 2 As in Sturge v. Great Western Ey. (1881), 19 Ch. D. 444, 51 L. J. Ch. 185, 45 L. T. 787, 30 W. R. 456 ; Leonard v. Haworth (1898), 171 Mass. 496, 51 N. E. 7, next of tin ; Proc- tor v. Clark (1891), 154 Mass. 45, 27 N. B. 673, 12 L. R. A. 721 ; DeWolf v. Middleton (1893), 18 R. I. 810, 31 Atl. 271; Evans's Estate (1893), 155 Pa. St. 646, 26 Atl. 739; Mc- Kee's Estate (1901), 198 Pa. St. 255, 47 Atl. 993, heirs; Cushman v. Good- win (1901), 95 Me. 353, 50 Atl. 50; Forrest v. Porch (1897), 100 Tenn. 391, 45 S. W. 676, heirs; Trenton T. S. D. Co. v. Donnelly (1903), — N. J. Eq. , 55 Atl. 92. 3 See Cal. Civ. Code (1901), § 1337. In New Tork. This seems to be the rule in New York also, but whether by statute or not does not appear. So held as to "heirs." Bliseon v. West Shore Ry. Co. (1894), 143 N..T. 125, 38 N. E. 104 ; Crane, Matter of (1900), 164 N. T. 71, 58 N. E. 47. 4 Doe d. Garner v. Lawson (1803), 3 East 278; Stert v. Bum (1839), 5 Bing (n. c.) 434, 35 E. C. L. 165. Must Be Kim at Death and Pay Day. A bequest to be divided among such of the testator's next of kin as should be surviving ten years after his death, was held to include only such of his next of kin at his death as should sur- vive ten years, and therefore to lapse by the death of his brother and sole next of kin within that time. Spink v. Lewis (1791), 3 Brown Ch. 355. To the same effect : Moss v. Dunlap (1859), Johns. Ch. (Eng.) 490. "Heirs at Law then Surviving" was held to show an intention to ascertain the class at the time specified. Wood v. Bullard (1890), 151 Mass. 324, 25 N. E. 67, 7 L. R. A. 304. 5 Hext of Kin. Such an intention was found in a gift to next of kin. Fargo v. Miller (1889), 150 Mass. 225, 22 N. E. 1003, 5 L. R. A. 690. Rela- tions : Jones v. Colbeck (1802), 8 Ves. 38. Heirs: Hardy v. Gage (1891), 66 N. H. 552, 22 Atl. 657; Johnson v. Ackey (1901), 190 III. 58, 60 N. E. 76. But see Barber's Trust (1852), 1 Sim. & Gif. 118; Gorbell v. Davison (1854), 18 Beav. 556. eKellett v. Shepard (1891), 139 111. 433, 28 N. E. 751 ; Abbott v. Brad- street (1862), 3 Allen (85 Mass.) 587; Tuttle v. Wool worth (1901), 62 N. J. Eq. 532, 50 Atl. 443 ; Holloway v. Hol- loway (1800), 5 Ves. 399, a leading case. Representatives of the son to whom 309 ASCERTAINING BENEFICIAEIES. § 472 though the event on which the estate over is limited is uncertain, so that the estate over cannot vest. 7 § 472. If There Are no Heirs at Testator's Death. If the person to whose heirs, next of kin, or the like, the postponed gift is made, survives the testator, but dies before the time arrives, those who answered the descrip- tion at the death of the person named take, not those who answered the description at the termination of the preceding estate, 8 unless a different intention appears. 9 "When the question arose while the person named was living and the preceding estate enduring, the court found no occasion to give the word any other than its strict meaning. 10 § 473. Postponed Gifts to Children, Cousins, and the Like 11 — General Rule. But if the class would be com- plete at some future time, so that the testator might have supposed that all would take, the court will include as many as possible without interfering with the distri- bution as directed by the will, which in the absence of direction is understood to be immediate. 12 All who are in being at the time for distribution are included, though born after the death of the testator; 13 and all born after- the life estate was given were held Gundry v. Pinniger (1852), 14 Beav. entitled to a share in the estate over 94 ; 16 Jur. 488, 21 L. J. Ch. 405, 11 "according to the statute of distribu- Eng. L. & Bq. 63. tions," on the death of the son without 9 Proctor v. Clark (1891), 154 Mass. issue. Bullock v. Downes (1860), 9 45, 27 V E. 673, 12 L. R. A. 721. H. L. Cas. 1. A hequest being made to trustees A devise by a man having two chil- for the use of a son for life, remainder dren, to one for life, and In default of to a son of the son if living, to his issue by him, to the testator's heirs, heirs if dead, it was held that the was held to vest in the other son a gift over was not intended to vest half interest in the estate over, on in the first taker on the death of his the death of the testator. Minot v. son without children during his life, Tappan (1877), 122 Mass. 535. but went to those who would be the 7 So held in Kellett v. Shepard, heirs of the son on the death of the Tuttle v. Wool worth, and Abbott v. first taker. Knowlton v. Sanderson Broadstreet, ubi supra; Bird v. Luckie (1886), 141 Mass. 323, 6 N. B. 228, (1850), 8 Hare 301. 10 Baer v. Forbes (1900), 48 W. Va. 8 Brent v. Washington (1868), 18 208, 36 S. E. 364. Gratt. (Va.) 526, 535; Arnot v. Arnot 11 See note 73 Am. St. Rep. 416 et (1902), 75 N. T. App. Div. 230, 78 seq. N. Y. S. 20; Danvers v. Claronden 12 Thomas v. Thomas (1899), 149 (1681), 1 Vera. Ch. 35; Turner, In Mo. 426, 51 S. W. Ill, 73 Am. St. Rep. re (1865), 2 Dr. & Sm. 501, 34 L. J. 405. Ch. 660, 12 L. T. (N. S.) 695, 13 W. 13 See cases cited in § 475 below. R. 770 5 Am. L. Reg. (n. 8.), 234; Manifest Intent to Exclude. Un- §474 WILLS. 310 wards are excluded, 13 unless there are none in existence at the time for distribution, 14 or an intention that all members of the class at any time born shall take clearly appears from the language of the will. 15 § 474. Limitations. If the property is to be dis- tributed at once, or as soon as it can be conveniently, persons are not entitled to take because the executor did not in fact distribute till after they were born. 16 Again, if the gift is of a specified sum to each member of the class, not of one sum to be divided between them, those who are born after the death of the testator cannot take, though the period of payment is postponed; for it would be impossible to know how much must be reserved less an intention to exclude the after- born appears from the will, as In Hooper v. Smith (1898), 88 Md. 577, 41 Atl. 1095. 13 See cases cited in § 475 below. 14 In which case if the gift is a remainder in real estate it would abate at common law for want of the particular freehold to sustain the con- tingent remainder. Cunliffe v. Brancker (1876), 3 Ch. D. 393, 46 L. J. Ch. 128, 35 L. T. 518— A. C. "But in Regard to Trusts the rules arc not so strict as at law, for, the whole legal estate being in the trustees, the inconvenience of the freehold's be- ing in abeyance, if the particular es- tate determines before the contin- gency, upon which the remainder de- pends, does happen, is thereby pre- vented." Chapman v. Blissett (1735), Cas. Tern. Talbot 145. See also : Thompson v. Garwood (1837), 3 Whar- ton (Pa.) 287, 31 Am. Dec. 502. Statutes Making Remainders Stand Without Particular Estate. Moreover, it is provided by statute in many states that such remainders shall not fall on the termination of the pre- ceding estate. See Michigan Comp. Laws (1897), § 8814; 1 N. Y. Rev. Stat. pt. 2, t. 2, § 34, Birdseye's (1901), p. 3021, § 48. Executory Devises. But if the estate over were an executory devise in land all afterborn children would take if there were none at the period for pos- session. 2 Blgelow's Jarman **1024- 1034; Leake's Digest 371. Executory Bequests. So also if it were of personalty. Male v. Williams (1891), 48 N. J. Eq. 33, 36, 21 Atl. 854; Harris v. Lloyd (1823), Turner & Bus. 310, 11 Bng. Ch. 174 ; Hopkins v. Hopkins (1734), Cas. Tern. Talbot 44, s. c. (1749), 1 Ves. Sr. 268; Gib- son v. Montford (1750), 1 Ves. Sr. 484; Bullock v. Stones (1754), 2 Ves. Sr. 521; Armitage v. Williams (1859), 27 Beav. 346. But see Smith v. Smith (1894), 141 N. Y. 29, 35 N. E. 1075. Rule Against Perpetuities. As to violation of the rule against perpetui- ties in such cases see Roberts, In re (1881), 19 Ch. D. 520, 45 L. T. 450 —A. C. ib As in Hotaling v. Marsh (1892), 132 N. Y. 29, 30 N. E. 249. "All" and "Born or to be Born." Such expressions as "all children," and "born or to be born," are usually interpreted to mean all children born before the time for distribution, ex- cluding those afterward born. Thomas v. Thomas (1899), 149 Mo. 426, Si S. W. Ill, 73 Am. St. Rep. 405; Heisse v. Markland (1830), 2 Rawle (Pa.) 274, 21 Am. Dec. 445 ; Hubbard v. Lloyd (1850), 6 Cush. (60 Mass.) 522, 53 Am. Dec. 55 ; Whitebread v. St John (1804), 10 Ves. 152. In some cases effect is given to- more doubtful expressions, as in Mogg v. Mogg (1812), 1 Meriv. 654. io Landwehr's Estate (1892), 147 Pa. St. 121, 23 Atl. 348. 311 ASCEETAINING BENEFICIAKIES. §475 to make the payments, and the entire distribution would be postponed for an indefinite period. 17 § 475. Illustrations and Application as to Nature of Postponement and Estate. When the will directs the income of a certain fund to be distributed periodically among the members of a specified class, all share in each payment who are then qualified by the terms of the will to take, though they had no share in the prior pay- ments and were not then qualified or not in existence. 18 A bequest to be paid to the class a year or twenty years after the death of the testator includes those born after his death but before the time specified for payment. 19 A gift to such of the class as marry, attain a certain age, or the like, includes all in existence when the first one answered the description, though born after the death of the testator; 20 and all coming into existence 17 Ringrose v. Bramham (1794), 2 Cox Ch. 384 ; Mann v. Thompson (1834), Kay 638, 18 Jur. 826, 2 W. R. 582; Butler v. Love (1839), 10 Sim. (16 Eng. Ch.) 317. See also Howland v. Howland (1858), 11 Gray (77 Mass.) 469. Clearly limited by will in Richardson v. Willis (1895), 163 Mass. 130, 39 N. B. 1015. If no Children. This rule was ap- plied though the gift thereby failed entirely because no children were yet born. Rogers v. Mutch (1878), 10 Ch. D. 25, 48 L. J. Ch. 133, 27 W. R. 131. In another case though the bequest was to such as "may be born." Storrs v. Benbow (1833), 2 Mylne & K. 46, 7 Eng. Ch. 254. But a Clearly Expressed Intention would have to be observed though it should indefinitely postpone the whole distribution, the rule against perpetui- ties not being violated. Defflis v. Goldschmidt (1816), 1 Meriv. 417; Evans v. Harris (1842), 5 Beav. 45. If, as in Evans v. Harris, above, the payments are to be made out of a specified sum of much larger amount given to some other use for a certain period, there would seem to be no ob- jection to paying all born within that period, as far as the fund will go. 18 Thomas v. Thomas (1899), 149 Mo. 426, 51 S. W. Ill, 73 Am. St. Rep. 405; Wenmoth, In re (1887), 37 Ch. D. 266, 57 L. J. Ch. 649, 57 L. T. 709, 36 W. R. 409. But see Powell, In re (1898), 1 Ch. D. 227, distinguishing the above. 19 Oppenheim v. Henry (1853), 10 Hare 441, 44 Eng. Ch. 425, 20 L. T. 291, 1 W. R. 126; Godard v. Wagner (1848), 2 Strobh. Eq. (S. Car.) 1. 20 Andrews v. Partington (1791), 3 Brown Ch. 401, 404, a leading case ; Ward v. Tomkins (1878), 30 N. J. Eq. 3; Doerner v. Doerner (1900), 161 Mo. 399, 61 S. W. 801; McArthur v. Scott (1885), 113 U. S. 340, 380; Hawkins v. Everett (1859), 5 Jones Eq. (58 N. Car.) 42; DeVeaux v. De- Veaux (1846), 1 Strobh. Eq. (S. Car.) 283 ; Balm v. Balm (1830), 3 Sim. 492, 5 Eng. Ch. 215. A devise to the children of the tes- tator's brother, provided that the brother should have the uncontrolled and absolute management and use of the property till the children were of age, was held to include all children born before the first became of age. Handberry v. Doolittle (1865), 38 111. 202. A gift to be distributed when the youngest becomes of age necessarily includes all ever born. Fosdick v. Fos- dick (1863), 6 Allen (88 Mass.) 41; Male v. Williams (1891), 48 N. J. Eq. §475 WILLS. 312 thereafter are excluded. 21 If there is an estate for life, till marriage, or the like, with limitation over to the class, all take who were in existence by the time the first estate terminated, 22 and all coming afterwards are excluded 23 If there is a particular estate with limitation over to those reaching a certain age, or the like, all in existence when the life estate has terminated and the first of the class has answered the description, which- 33, 21 Atl. 854 ; Mainwaring v. Beevor (1849), 8 Hare (32 Bug. Ch.) 44, 19 L. J. Ch. 396, 14 Jur. 58. See also Webber v. Jones (1900), 94 Me. 429, 47 Atl. 903. When the youngest yet born became of age the class became entitled to partition. Doerner v. Doer- ner (1900), 161 Mo. 399, 61 S. W. 801. There are cases In which a narrower construction has been given, apparently to save the gift from the rule against perpetuities. Kevern v. Williams (1832), 5 Sim. 171, 7 Eng. Ch. 375; Elliott v. Elliott (1841), 12 Sim. 276, 35 Eng. Ch. 234. But such considera- tions ought not to affect the con- struction. Mervin, In re (1891), 3 Ch. D. 197, 60 L. J. Ch. 671, 65 L. T. 186, 39 W. R. 697. 21 Thomas v. Thomas (1899), 149 Mo. 426, 51 S. W. Ill, 73 Am. St. Rep. 405; Heisse v. Markland (1830), 2Rawle (Pa.) 274, 21 Am. Dec. 445; Tnornton v. Zea (1900), 22 Tex. Civ. App. 509, 55 S. W. 798; Whitebread v. St. John (1804), 10 Ves. 152; De- Veaux v. DeVeaux (1849), 1 Strobh. (S. Car.) 283; Picken v. Matthews (1878), 10 Ch. D. 264. 22 Remainder to Class after Life Estate. England — Ellison v. Airey (1748), 1 Ves. Sr. 111. Connecticut — Mitchell v. Mitchell (1900), 73 Conn. 303, 47 Atl. 325. Illinois — Madison v. Larmon (1897), 170 111. 65, 72, 48 N. E. 556, 62 Am. St. Rep. 356. Maine — Webber v. Jones (1900), 94 Me. 429, 47 Atl. 89. Massachusetts — Weston v. Poster (1843), 7 Mete. (48 Mass.) 297. Michigan — McLain v. Howald (1899), 120 Mich. 274, 79 N. W. 182, 77 Am. St. Rep. 597. Missouri — Gates v. Seibert (1900), 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625. New Hampshire — Smith v. Greeley (1893), 67 N. Hamp. 377, 30 Atl. 413. New York — Haug v. Schumacher a901), 166 N. T. 506, 60 N. E. 245. But see Baylies v. Hamilton (1899), 55 N. Y. S. 390, 36 App. Div. 133, affirmed, 59 N. E. 1118. North Carolina — Walker v. Johnston (1874), 70 N. Car. 576. South Carolina — Rutledge v. Fish- turne (1903), — S. Car. — , 44 S. E. 564. Virginia — Cheatham v. Gower (1897), 94 Va. 383, 26 S. E. 853. Peculiar Cases. The rule stated in the text was applied, though the chil- dren were born of another marriage. Jones's Appeal (1880), 48 Conn. 60. Or died also before distribution. Budd v. Haines (1894), 52 N. J. Eq. 488, 29 Atl. 170; Gates v. Seibert (1900), 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625. Or though another clause of the will gave to those then living, "my grandchildren, O. A. W. & E." Webster v. Welton (1885), 53 Conn. 183, 1 Atl. 633. A Clearly Expressed Intention to Exclude afterborn children would con- trol. Smith, Matter of (1892), 131 N. Y. 239, 30 N. E. 130. "To my son Robert's children, he and them enjoy- ing it while he lives," was held to give a life estate to Robert, remainder to all his children. Haskins v. Tate (1855), 25 Pa. St. 249. 23Ayton v. Ayton (1787), 1 Cox Ch. 326, 1 Brown Ch. 542 notes; Blass v. Helms (1893), 93 Tenn. 166, 23 S. W. 138; Akerman v. Akerman (1901), 71 N. H. 55, 51 Atl. 252; Knight v. Knight (1857), 3 Jones Eq. (56 N. Car.) 167. 313 ASCERTAINING BENEFICIARIES. §476 ever last happens, take, 24 and all coming afterwards are excluded. 25 § 476. Scope of the Rule as to Donees, and Prop- erty and Estate Given. If the owner of an estate expect- ant devises it to a class, all take who are in existence when the estate comes into possession. 26 These rules apply whether the property is real 27 or personal. 28 They apply to gifts to such classes as children, 29 grandchildren, 30 issue, 31 descendants, 32 brothers, 33 cousins, 84 nephews, 35 and the like, 38 of the testator or of any other person. §477. Children En Ventre. In gifts to children, 37 24 Hubbard v. Lloyd (1850), 6 Cush. (60 Mass.) 522, 53 Am. Dec. 55; Simp- Bon v. Spence (1859), 5 Jones Eq. (58 N. Car.) 208. 25 Hubbard v. Lloyd, above ; Kevern v. Williams (1832), 5 Sim. 171, 7 Eng. Ch. 375. Unless the will requires all to be admitted as in Hotaling v. Marsh (1892), 132 N. Y. 29, 30 N. E. 249. 26Britton v. Miller (1869), 63 N. Car. 268; Walker v. Shore (1808), 15 Ves. 122. 2i It has been said that afterborn children would not take under a de- vise of land to be divided after a specified time unless there was a pre- ceding estate ; but in that case the children born were held entitled to immediate possession. Wise v. Leon- hard t (1901), 128 N. Car. 289, 38 S. E. 892. A devise to children after a. term to trustees for 500 years to secure payment of debts and for other pur- poses was held not to include after- born children in an old case. Single- ton v. Gilbert (1784), 1 Cox. Ch. 68, 1 Brown Ch. 441 notes. 28Teaton v. Roberts (1854), 28 N. Ham. 459. 29 Most of the cases cited under this head are of children. 30McArthur v. Scott (1884), 113 IT. S. 340; Oppenheim v. Henry (1853), 10 Hare 441, 44 Eng. Ch. 425, 1 W. R. 126; Hall v. Hall (1877), 123 Mass. 120. 31 Campbell v. Stokes (1894), 142 N. T. 23, 36 N. E. 811 ; Cook v. Cook (1706), 2 Vern. Ch. 545. In Hawkins v. Everett (1859), 5 Jones Eq. (58 N. Car.) 42, "lawful heirs of her body" was construed to mean issue and in- clude the afterborn. 32 Roberts, In re (1880), 19 Ch. D. 520, 530, 45 L. T. 450— A. C. 33 Devisme v. Mello (1782), 1 Brown Ch. 537; Leake v. Robinson (1817), 2 Meriv. 362, 382. 34 Baldwin v. Rogers (1853), 3 DeG. M. & G. (52 Eng. Ch.) 649, 22 L. J. Ch. 665. 35 Balm v. Balm (1830), 3 Sim. 492, 5 Eng. Ch. 215. 36 The rule is the same as to all re- lations. 2 Bigelow's Jarman *1015 ; Leake's Digest 371. "I do not see by what we are to be guided, if, in case of a gift to a class of relations, that which is held to be a wise rule with regard to one grade of relationship is not to be so held with regard to another. Per Turner, L. J., in Baldwin v. Rogers, above. Family. It is said that a gift to testator's son "and his family" would include all children born before the life tenant died. St. John v. Dann (1895), 66 Conn. 401, 34 Atl. 110. 37 Immediate. Culp v. Lee (1891), 109 N. Car. 675, 14 S. E. 74 ; Barringer v. Cowan (1856), 2 Jones Eq. (55 N. Car.) 436. Immediate gift to the children of B, "to such of them as may be living at my decease." Hall v. Hancock (1834), 15 Pick. (32 Mass.) 255, 26 Am. Dec. 598. "To A and her children." Biggs v. McCarty (1882), 86 Ind. 352, 44 Am. Rep. 320. To a son for life, remainder to his § 478 WILLS. 314 grandchildren, 38 issue, 39 and the like, of land or goods, whether to be enjoyed at once on the death of the tes- tator or after a time, 40 the law considers a child en ventre sa mere as born if it would be for the benefit of the child to be so considered. B. EFFECT OF MEMBER OF CLASS DROPPING OUT. §478. Death of Member— Rights of His Heirs and Representatives. Of course, the heirs and representa- tives of a member of the class dying before the testator would take nothing, 41 unless the gift be saved by the statutes to prevent lapse. 42 It is the policy of the law to have all gifts vest at the earliest time consistent with the terms of the will. 43 Therefore, in cases of gifts to a class, it is held that the whole estate vests at the death of the testator in those members of the class then in being, unless the will clearly intends that the gift shall not vest till a later time, and even though those after- ward born would have to be let in under the rules here- inbefore stated. 68 The gift having vested, those in ex- istence may be made to represent those yet unborn, so as to bind them by a judgment, sale, partition, or the like, in an action against the living; 69 and while the living children. Barker v. Pearce (1858), 30 40 N. J. Eq. 73, and excellent editorial Pa. St. 173, 72 Am. Dec. 691. note; also Smart v. King (1838), To B for life, remainder to his chil- Meigs (19 Tenn.) 149; Swift v. Duf- dren, "living at his decease." Doe v. field (1819), 5 S. & R. (Pa.) 38. Clarke (1795), 2 H. Bl. 399. 39 Issue. After life estate to To wife for life, remainder to daugh- two, "issue then living." Laird's Ap- ter's children. McLain v. Howald peal (1877), 85 Pa. St. 339. (1899), 120 Mich. 274, 79 N. W. 182, 40 See notes above. A gift over if 77 Am. St. 597. there be no children by a time named Remainder to the children of T, is defeated by a child en ventre at "born in my lifetime," included a child that time. Pearce v. Carrington (1873), en ventre sa mere at the death of the 8 Ch. App. 969, 22 W. R. 41 ; Groce v. testatrix. Trower v. Butts (1823), 1 Rittenberry (1853), 14 Ga. 232. Sim. & Stu. 181, 1 L. J. (o. s.) Ch. 41 See ante § 467. 115. 42 Which is a matter considered la- To "all children born or to be born" ter. Post §§ 673-9. was held to include only the children 43 See post § 582. then born and the one, then en ventre. 68 See ante §§ 473-477. Burke v. Wilder (1826), 1 McCord (S. 69 Kent v. Church of St. Michael Car.) 551. See also Starling v. Price (1892), 136 N. T. 10, 17, 32 N. E. 704, (1864), 16 Ohio St. 29; Armistead v. 32 Am. St. Rep. 693, 18 L. R. A. 331; Dangerfleld (1811), 3 Munf. (Va.) 20. Irvin v. Clark (1887), 98 N. Car. 437, 38 grandchildren, immediate enjoy- 4 S. E. 30. ment. Randolph v. Randolph (1885), But even by suit and Judgment in 315 ASCERTAINING BENEFICIARIES. §479 could not by their own acts bind the unborn, 70 they could sell or devise as soon as the gift had vested, though before the time for enjoyment, 71 and if any member should die between the death of the testator and the time for enjoyment, his heirs or representatives would take his share. 72 If one answering the description dies before the estate vests, though after the death of the testator, his heirs and representatives would take noth- ing, 73 unless the gift were saved by the statutes as to lapse. § 479. Death of Member— Rights of Survivors. Here it becomes important to determine whether the bene- ficiaries take as joint tenants or as tenants in common, and if in common whether as individuals or as a class. an action against the living the pro- vision for the unborn cannot he de- feated. Smith v. Secor (1898), 157 N. Y. 402, 52 N. E. 179. 70 Hovey v. Nellls (1894), 98 Mich. 374, 57 N. W. 255 ; Kent v. Church of St. M., above. 7iLoring v. Carnes (1888), 148 Mass. 223, 19 N. B. 343 ; Hovey v. Nellis (1894), 98 Mich. 374, 57 N. W. 255. 72 Death after Testator. Georgia — So held though it was by substitution and contingent on failure of issue. Crawford v. Clark (1900), 110 Ga, 729, 36 S. E. 404. Illinois — Siddons v. Cockrell (1890), 131 111. 653, 23 N. E. 586. Indiana — Moores v. Hare (1896), 144 Ind. 573, 43 N. E. 870. Maryland — Cox v. Handy (1893), 78 Md. 108, 27 Atl. 227. Massachusetts — Stanwood v. Stan- wood (1901), 179 Mass. 223, 60 N. E. 584. Michigan — Hovey v. Nellis (1894), 98 Mich. 374, 57 N. W. 255. Missouri — Gates v. Seibert (1900), 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625. New Hampshire — Hall v. Wiggin (1892), 67 N. H. 89, 29 Atl. 671. New York — Connelly v. O'Brien (1901), 166 N. T. 406, 60 N. E. 20. Rhode Island — Sherman v. Baker (1898), 20 B. I. 446, 451, 40 Atl. 11, 40 L. R. A. 717. Wisconsin — Patton v. Ludington (1899), 103 Wis. 629, 79 N. W. 1073. In a recent case counsel admitted that if the gift was to a class the representatives of one dying before dis- tribution could not take ; and the court taking this for granted, still held that the representatives of the deceased were entitled, on the ground that the individuals took as tenants in com- mon. Russell, In re (1901), 168 N. Y. 169, 61 N. E. 166, 7 Pro. R. A. 163. That the proposition admitted is not law was expressly decided in Brown, Matter of (1897), 154 N. T. 313, 326, 48 N. E. 537. 73 For cases in which the will pre- vents the gift vesting till the time for enjoyment see Ballentine v. Poster (1901), 128 Ala. 638, 30 South, 481; Goebel v. Wolf (1889), 113 N. Y. 405, 21 N.' E. 388, 10 Am. St. Rep. 464; Harding v. Harding (1899), 174 Mass. 268, 54 N. E. 549. Exception — Event only Contingent. A gift may be contingent either as to the person to take or as to the event in case of which he is to take or both. If the contingency is on the event only, the person being certain, his gift does not fail by his death before the event happens. "There may be » vested in- terest in a contingent remainder." This rule has been applied to gifts to classes. A bequest was made to A for life, remainder to B absolutely if he survived A, with limitation over to §479 WILLS. 316 If they take as joint tenants, whether as individuals or as a class, the rule of survivorship peculiar to estates in joint tenancy gives all to the survivors in any case. 74 But if the gift is to the individuals as tenants in com- mon, and one dies before the testator, 75 or afterwards before the gift vests, and the statutes to avoid lapse do not save it to his heirs or representatives, it does not go to the surviving donees, but to the residuary legatees if personalty, 76 to the heirs of the testator if land. On the other hand, if the donees take as a class, though as tenants in common, and one dies under such circum- stances, no part of the gift fails, but the survivors take the whole. 77 When the persons to take are named, and testator's daughter and other sons. B died before A ; and it was held that the share of a son dying before B did not lapse. Shaw v. Eckley (1897), 169 Mass. 119, 47 N. E. 609. And see Crawford v. Clark (1900), 110 Ga. 729, 36 S. E. 404 ; Bruce v. Goodbar (1900), 104 Tenn. 638, 58 S. W. 282. The vesting is not prevented by such expressions as "then to be di- vided," and the like, which the courts hold to refer ' to the enjoyment only. Connelly v. O'Brien (1901), 166 N. T. 406, 60 N. E. 20; Lombard v. Willis (1888), 147 Mass. 13, 16 N. E. 737. If land or goods are given to such children as shall attain a given age, do a particular act, sustain a certain rela- tion, or be living at a stated time, with- out any distinct gift to the whole class preceding such restrictive description, the interest is contingent on account of the person, and no one answers the description who has not attained the age, done the act, or the like. Coggin's Appeal (1889), 124 Pa. St. 10, 16 Atl. 579, 10 Am. St. Rep. 565. 74 Rockwell v. Swift (1890), 59 Conn. 289, 20 Atl. 200 ; Jackson v. Roberts (1860), 14 Gray (80 Mass.) 546. See cases cited in the note 75 below. The abolition of the doctrine of sur- vivorship by statute does not prevent the survivors who are to take as joint tenants taking what would other- wise lapse. The survivors neverthe- less take all. Lockhart v. Vandyke (1899), 97 Va. 356, 33 S. E. 613; Tel- fair v. Howe' (1851), 3 Rich. Eq. 235, 55 Am. Dec. 637. Contra: Strong v. Ready (1848), 28 Tenn. (9 Humph.) 168; Coley v. Ballance (1864), 2 Winst. (60 N. C.) 89. 75 Magnuson v. Magnuson (1902), 197 III. 496, 64 N. E. 371 ; Moffett v. Elmendorf (1897), 152 N. T. 475, 46 N. E. 845, 57 Am. St. Rep. 529 ; Matter of Kimberly (1896), 150 N. T. 90, 44 N. E. 945; Bendall v. Bendall (1854), 24 Ala. 295, 60 Am. Dec. 469; Doe d. Hearn v. Cannon (1869), 4 Houst. (Del.) 20, 15 Am. Rep. 701; Strong v. Ready (1848), 9 Hump. (28 Tenn.) 168. Or if the gift to the other is cut down by a codicil. Sturgis v. Work (1889), 122 Ind. 134, 22 N. E. 996, 17 Am. St. Rep. 349 ; Minkler v. Simons (1898), 172 111. 323, 50 N. E. 176. 76 Unless it falls out of the residuary clause, in which case it would pass as intestate. See post §§ 671-2. 77 Viner v. Francis (1789), 2 Cox. Ch. 190; Jackson v. Roberts (1860), 14 Gray (80 Mass.) 546; Hoppock v. Tucker (1874), 59 N. T. 202; Hall v. Smith (1881), 61 N. Hamp. 144; Springer v. Congleton (1860), 30 Ga. 976; Crecelius v. Horst (1883), 78 Mo. 566, affirming s. c, 9 Mo. App. 51 ; Striewig's Estate (1895), 169 Pa. St. 61, 32 Atl. 83. Even -though so limited by the will or facts that the members had been ascertained before the death occurred. Cruse v. Howell (1858), 4 Drew. Ch. 215. 317 ASCERTAINING BENEFICIARIES. § 480 there is no other sufficient designation of them, they must of necessity take as individuals, and it is hot ma- terial that they do in fact constitute a class. 78 On the other hand, if the persons to take can he ascertained only hy inquiring who answer a general description, there being no other sufficient designation of them, they neces- sarily take as a class, and those who take take all. It is the cases of double description that perplex. The mere fact that the persons composing the class, are named is not controlling; an intent that they shall take by the other description may still be found, and the survivors take all. 79 Whether a gift to individuals named and others by description (for example, to A and the children of B, per capita) is to a class, is a difficult question. The better rule would seem to be that the survivors take all. 80 But when the name of each person to take is given and the class description added, the pre- sumption is that the class description was added only for further identification, that they take as individuals, and that the survivors are not to have the share of a member dying. 81 § 480. Incompetence of a Member— Rights of Others. 78Moffett v. Elmendorf (1897), 152 475, 46 N. B. 845, 57 Am. St. Eep. N. T. 475, 46 N. E. 845, 57 Am. St. 529; Kimberly, Matter of (1896), 150 Eep. 529; Lyman v. Coolidge (1900), N. T. 90, 44 N. E. 945; Rockwell v. 176 Mass. 7, 56 N. E. 831. Bradshaw (1895), 67 Conn. 8, 34 Atl. 79 Survivors Take All. Swallow v. 758; Doe d. Hearn v. Cannon (1869), Swallow (1896), 166 Mass. 241, 44 N. 4 Houst. (Del.) 20, 15 Am. Eep. 701; E. 132; Stedman v. Priest (1869), 103 Church v. Church (1885), 15 E. I. Mass. 293; Jackson v. Roberts (1860), 138, 23 Atl. 302; Twitty v. Martin 14 Gray (80 Mass.) 546; Springer v. (1884), 90 N. Car. ,643. Congleton (1860), 30 Ga. 976; War- Gifts Subject to Charge. If a gift ner's Appeal (1872), 39 Conn. 253; with such a double designation of the Hoppock v. Tucker (1874), 59 N. Y. persons to take is burdened with a 202; Brown's Estate (1894), 86 Me. charge, that fact overcomes the pre- 572; Hall v. Smith (1881), 61 N. sumption of an individual gift to be Hamp. 144 ; Ashling v. Knowles enjoyed as tenants in common ; which (1856), 3 Drew. 593. would otherwise be raised by the nam- 80 Moss, In re (1899), 2 Ch. D. 314, ing of the legatees and the addition 81 L. T. 139, 68 L. J. Ch. 598, 47 W. of such expressions as "share and share B. 642 A. C. But see Gordon V. Jack- alike." It cannot be supposed that son (1899), 58 N. J. Eq. 166, 43 Atl. the testator intended the survivor to 9g_ pay the whole charge and take only 81 Mann v. Hyde (1888), 71 Mich, a part of the gift. Chase v. Peckham 278, 39 N. W. 78; Frost v. Courtis (1891), 17 R. I. 385, 22 Atl. 285; (1897), 167 Mass. 251, 45 N. E. 687; Bolles v. Smith (1872), 39 Conn. 217. Moffett v. Elmendorf (1897), 152 N. T. A bequest of residue to "my execu- §481 WILLS. 318 If any of the class is incompetent to take, for example, because of alienage, those of the class who are competent take all. 82 Likewise, if the testator expressly excludes individuals who answer the description and would be members of the class. 83 C. EFFECT OF STATING NUMBER. §481. May be Disregarded Usually. If the will erroneously states the number answering the descrip- tion of persons to take, the gift is void for uncertainty unless the testator intended all to take and was mis- taken as to the number. If nothing to the contrary ap- pears it will be presumed that he was mistaken as to the number but intended all to take. Therefore, a gift of $1000 to each of A's four children entitles each of A's children to $1000, though there may be more than four of them. 84 Likewise, a devise or bequest of property to be divided between A's two daughters goes to all his tors hereinafter named, to enable them to pay my debts, legacies, and funeral and testamentary charges, and also to recompense them for their trouble, equally between them," followed by naming three executors, was held to en- title the survivor to all. Knight v. Gould (1833), 2 Mylne & K. 295, 8 Eng. Ch. 2, 1 Cooper S. C. 240. 82 Dawning v. Marshall (1861), 23 N. Y. 366, 80 Am. Dec. 290. So when the gift was void as to two, because they subscribed as witnesses. Martineau v. Simonson (1901), 59 N. Y. App. Div. 100, 69 N. Y. S. 185. But if they take individually as ten- ants in common the competent persons take only their shares, the others be- ing administered as intestate. Powers v. Codwise (1899), 172 Mass. 425, 52 K. E. 525. 83McGovern's Estate (1899), 190 Pa. St. 375, 42 Atl. 705. 84 Thompson v. Young (1866), 25 Md. 450 ; McKechnie v. Vaughan (1873), L. R. 15 Eq. Cas. 289, 28 L. T. 263, 21 W. R. 399; Bassett's Es- tate (1872), 14 Eq. Cas. 54, 41 L. J. Ch. 681, 20 W. R. 589; Spencer v. Ward (1870), 9 Eq. Cas. 506, 22 L. T. (N. S.) 702, 18 W. R. 858; Yeats v. Yeats (1852), 16 Beav. 170; Gar- vey v. Hibbert (1812), 19 Ves. 125. "To the two sons and the daughter of A 50Z each," was held to entitle A's son and each of his four daughters to 50!. Harrison v. Harrison (1829), 1 Russell & M. (4 Eng. Ch.) 71. "I give and bequeath 100! apiece to the four sons of A," was held to entitle A's daughter and each of his three sons to 1001. Lane v. Green (1851), 4 DeGex & S. 239, 15 Jur. 763. A having five sons and a. daughter, a rent charge was bequeathed to A for life remainder to his five daughters ; held that the daughter took the whole. Selsey v. Lake (1839), 1 Beav. 146, 8 L. J. Ch. 233. "To the two servants that shall live with me at the time of my death 100Z," was held to entitle each of the three servants to 1001, there being only two when the will was drawn. Sleech v. Thorington (1754), 2 Ves. Sr. 560. "To the three children of F 500! each," was held to give that sum to each of his nine children, though the clause was copied from a former will made when there were only three chil- dren. Daniell v. Daniell (1849), 3 DeGex & S. 337, 18 L. J. Ch. 157, 13 Jur. 164. 319 ASCERTAINING BENEFICIARIES. §482 daughters, however many. 86 A gift of a share "to the child of my deceased daughter" has been held to entitle each of her children to participate. 86 If there were not so many as the testator stated, still they would take all. 87 § 482. When Statement of Number Controls. But this rule including all and rejecting the statement of number is based on the presumption of mistake; and so does not apply if there is anything to show that only the specified number, and which, were intended to take. 88 If the number was correct when the will was written only those then in existence take, 89 even excluding a child en ventre sa mere. 90 The number being correctly specified, they take as individuals and not as a class, so that the shares of the survivors would not be increased by the death of any unless they were joint tenants. 91 85 Stebbing v. Walkey (1786), 2 Brown Ch. 85, 1 Cox Ch. 250; Lee v. Pain (1844), 4 Hare (30 Eng. Ch.) 201, 249 ; Vernor v. Fisher, Brightly (Pa.) 412; Vernor v. Henry (1837), 6 Watts (Pa.) 192. A gift of residue to the six grand- children includes all, though the name of one was omitted and the name of another repeated. Garth v. Meyrick (1779), 1 Brown Ch. 30. But see Glanville v. Glanville (1863), 33 Beav. 302, 33 L. J. Ch. 317, 9 Jur. (n. s.) 1189, 9 L. T. (n. s.) 470, 12 W. E. 93. seUrie v. Irvine (1853), 21 Pa. St. 310. "Unto the children of the deceased son named Barber of my father's sis- ter," was held void for uncertainty, there being three such sons. Stephen- son, In re (1897), 1 Ch. D. 75, 66 L. J. Ch. 93, 75 L. T. 495, 45 W. R. 162 — A. C. In this case the judges dis- approved of but distinguished Hare v. Cartridge (1842), 13 Simon (36 Eng. Ch.) 165. 87 Kalbfleisch v. Kalbfleisch (1876), 67 N. Y. 354 ; Carthew v. Euraght (1872), 26 L. T. 834, 20 W. R. 743; Berkeley v. Palling (1826), 1 Russell 496, 4 L. J. Ch. (o. S.) 226. "To the four children of my deceased daughter $3000 each," was held to en- title the three to $12000 between them. Lawton v. Hunt (1850), Strobh. Eq. (S. Car.) 1. 88Wildberger v. Cheek (1897), 94 Va. 517, 27 S. E. 441 ; Stephenson, In re (1897), 1 Ch. D. 75, 66 L. J. Ch. 93, 75 L. T. 495, 45 W. R. 162— A. C. ; Shepard v. Wright (1859), 5 Jones Eq. (50 N. Car.) 20; Wrightson v. Calvert (1860), 1 Johns. & H. Ch. 250. As where the children of the first mar- riage corresponded with the statement of number. Newman v. Piercey (1876), 4 Ch. D. 41, 46 L. J. Ch. 36, 35 L. T. 461, 25 W. R. 37 ; Hampshire v. Peirce (1751), 2 Yes. Sr. 216. But see Matthews v. Foulshow (1864), 12 W. R. 1141, 11 L. T." 82, 4 N. R. 500. Or that was the number living at home. Bradley v. Rees (1885), 113 111. 327, 55 Am. Rep. 422. 89 Sherer v. Bishop (1792), 4 Brown Ch. 55. 90 Emery's Estate (1876), 3 Ch. D. 300, 24 W. R. 917. But the will pro- viding that if a child should be en ventre it should be included, all after- born children took. Adams v. Logan (1827), 6 T. B. Mon. (Ky.) 175. 91 Smith's Trusts (1878), 9 Ch. D. 117. § 483 WILLS. 320 4. Division Peb Capita oe Pee Stirpes. § 483. Individuals. There can seldom be any ques- tion as to the proportions of division between legatees or devisees, as joint tenants or tenants in common, if all are named. Regardless of their relations to the tes- tator or each other, each person takes an equal share. 92 § 484. Simple Classes. The proportions of the mem- bers in cases of gifts to any simple class, as to A's chil r dren, would be equal. There could scarcely be a question in such cases. But when a single gift is made to a com- plex class, as to A's descendants, there being more than one generation, or to individuals and classes, as to A and the children of B, or to several classes, as to the children of John and Henry, there is often great difficulty in de- termining the proportions of the beneficiaries. The question is not as to whether the division shall be equal, but whether the division shall be among the individuals, or among the classes. Division among the individuals is called per capita, division among the classes is called per stirpes. § 485. Complex Classes— Heirs, Next of Kin, and the Like. In the absence of a different direction, it is gen- erally held that the law which determines who take under a gift to heirs also controls the manner and pro- portions in which they take; 93 and where the old per 92 Marsh v. Del linger (1900), 127 111. 242, 54 Am. Eep. 235; Kirkpatrick N. Car. 360, 37 S. E. 494. So held of v. Kirkpatrick (1902), 197 111. 144, a devise to Nancy's children, names as 64 N. E. 267. follows— E, M, J, B, and H ; the heirs Oregon— R a m s e y v. Stephenson of Henry, E, W, I, and B; also John, (1899), 34 Ore. 408, 56 Pac. 520, 57 my eldest son. Almand v. Whitaker p ac- 195 (1901), 113 Ga. 889, 39 S. E. 395. „' _ , . x , , o mo., coo, oo o. u. oou. Pennsylvania — H och's Estate 03 Gifts to Heirs. (1893), 154 Pa. St. 417, 26 Atl. 610; Connecticut — Angus v. Noble (1900), Scott's Estate (1894), 163 Pa. St. 165, 73 Conn. 56, 46 Atl. 278, 5 Pro. R. A. 29 Atl. 877. 643 - Massachusetts — White v. Stanfleld Georgia— McLean v. Williams (i 888) 146 Mass. 424, 434, 15 N. E. (1902), — Ga. — , 42 S. B. 485, 59 919 . L. R. A. 125. South Carolina — Dukes v. Faulk To wo— Johnson v. Bodine (1899), (1892), 37 S. Car. 255, 16 S. E. 122. 108 Iowa 594, 79 N. W. 348. Tennessee— Forrest v. Porch (1897), Illinois— Kelley v. Vlgas (1884), 112 100 Tenn. 391, 45 S. W. 676. 321 ASCERTAINING BENEFICIARIES. §486 capita rule still obtains 94 it "will yield to a very faint glimpse of a different intention." 95 Likewise, the law determining the beneficiaries also determines the pro- portions, of their shares, in cases of gifts to next of kin, 96 relations, 97 and representatives when construed to mean next of kin. 98 We have already noticed a similar ten- dency in cases of gifts to issue, descendants, families, and the like. 9 § 486. Several Classes— Children of Several. In con- struing their statute of distributions, the English courts held that collateral kindred shared per capita if all stood in equal degrees; for example, if they were all children of deceased brothers and sisters of the intestate, six of one, three of another, and one of another, each would take a tenth. 99 By analogy it was held in the construction of wills that gifts to the children of brothers and sisters, and the like, required division per capita. 1 Per capita distribution of intestate property when all Equally and Share and Share Alike. Whether the addition of such expressions as "share and share alike," "equally to be divided be- tween," etc., indicate that the distribu- tion shall be per capita is not agreed as will be seen by consulting the above cases, especially McLean v. Williams and the cases cited therein. See also Bisson v. West Shore Ry. Co. (1894), 143 N. T. 125, 38 N. E. 104; Walker v. Webster (1897), 95 Va. 377, 28 S. E 570. 94 So held in Record v. Fields (1900), 155 Mo. 314, 55 S. W. 1021. 85 Woodward v. James (1889), 115 N. T. 346, 22 N. E. 150. 86 Hinkley V. Maclarens (1832), 1 Mylne ft K. (6 Eng. Ch.) 27. So held In Fisk v. Fisk (1900), 60 N. J. Eq. 195, 46 Atl. 538; Connecti- cut T. & S. D. Co. V. Hollister (1901), 74 Conn. 228, 50 Atl. 750 ; Houghton v. Kendall (1863), 7 Allen (89 Mass.) 72, 77, in which "heirs" was held to mean nest of kin as there used. 97 So held of * gift to he divided "equally between my blood relations of the degree which the law permits." Cummings v. Cummings (1886), 146 Mass. 501, 16 N. E. 401. Contra: 21 Tiffin v. Longman (1852), 15 Beav. 275 ; Theobald Wills (2 ed.) 263. 98 Thompson v. Young, (1866), 25 Md. 450; Booth v. Vickars (1844), 1 Coll. Ch. 6, 13 L. J. Ch. 147, 8 Jur. 76. s See ante §§ 445, 446, 454. 89 Walsh v. Walsh (1695), Finch's Prec. Ch. 54; 2 Wms. Exrs. (8th ed.), 1503 ; 4 Kent Com. 379. i It was so held in the following cases : "The proceeds of said real estate to divide the same among my heirs at, law as follows : to the children of my brothers James and Joseph, and the children of my late brother George in equal proportions, share and share ■alike." Follansbeev. Follansbee (1895), 7 App. D. C. 282. "Equally between the children of my brother P and Bister F." Nichols v. Denny (1859), 37 Miss. 59; Ward v. Stow (1834), 2 Dev. Eq. (17 N. Car.) 509; Mclntire v. Mclntire (1899), 14 App. D. C. 337, 355; Rohrer v. Burris (1901), 27 lud. App. 344, 61 N. E. 202. "To my brothers' and sisters' chil- dren, or all my nephews and nieces." Shull v. Johnson (1855), 2 Jones Eq. (55 N. Car.) 202. §487 WILLS. 322 stand in equal degrees is said to be the rule generally in America, even in cases of lineal descendants; 2 though it is otherwise in England, 3 and in several of our states. But when the question arose on the construction of wills no distinction was made by the English eourts between lineal and collateral kindred, nor between kindred and strangers, nor between equal and unequal degrees; but all gifts to the children of several were divided per capita. 4 Some American courts have followed the Eng- lish rule, making division per capita between lineal de- scendants, 5 while others have made division per stirpes in such cases. 6 § 487. Several Classes— Other than Children. Divi- sion per capita seems to have been the rule in all other cases of gifts to several classes. 7 But in these cases also "Among my nephews A, B, and C, and the children of my sisters T and H." Tomlin v. Hatfield (1841), 12 Sim. Ch. (35 Eng. Ch.) 167. When Per Stirpes Among Collaterals. But even among collateral kindred, division per stirpes has been fre- quently held to be required by slight indication in the context. As in the following : Devise to the testatrix's brother W and his heirs, and the "heirs" of her deceased brother J and sisters B and M. Plummer v. Shepherd (1902), 94 Md. 466, 51 Atl. 173. "And" was held to mean "or," and "heirs" to mean "children ;" and W having died, all the children took per stirpes as pur- chasers. 2 See 4 Kent Com. 379 ; Person's Appeal (1873), 74 Pa. St. 121. 3 Natt, In re (1888), 37 Ch. D. 517; Crump v. Fancett (1874), 70 N. Car. 345. 4 Thus a gift to the children of Mary and Grace, daughters of the testatrix, was divided per capita. Lincoln v. Pelham ((1804), 10 Ves. 166. 5Ballentine v. Foster (1901), 128 Ala. 638, 30 So. 481. But a division per stirpes was found to be required by a devise to the tes- tator's wife for life, remainder to his sons H, A, and A, during their natural lives, "and then to the children that each may have surviving them." Bethea v. Bethea (1896), 116 Ala. 265, 22 So. 561. a As in the following cases : Mayer v. Hover (1888), 81 Ga. 308, 7 S. E. 562; Merrill v. Curtis (1898), 69 N. Hamp. 206, 39 Atl. 973, on slight indi- cation of intent. "If John shall die without children then my will is that the same shall be equally divided between the children of my sons D, T, and H." Weston v. Foster (1843), 7 Mete. (48 Mass.) 297. Residue "to all my grandchildren in equal shares." Morrill v. Phillips (1886), 142 Mass. 240, 7 N. E. 771. 7 Per Capita. "Revert to my children who may survive or to their descend- ants, * • * equally divided be- tween them." Slingluff v. Johns (1898), 87 Md. 273, 39 Atl. 872. "All the residue of my estate I give to the surviving members of my broth- ers and sisters families, which are above named, in equal parts." Hoadly v. Wood (1899), 71 Conn. 452, 42 Atl. 263. "The balance equally between the heirs of H. L. W. B. S. M. and S. to them and their heirs forever," was said to require division per capita, but division per stirpes was made because of the context. Spivey v. Spivey (1841), 2 Ired. Eq. (37 N. Car.) 100. 323 ASCERTAINING BENEFICIAEIES. 488 the American courts have often made division per stirpes, with little or no aid from the context. 8 § 488. Uniting Individuals and Glasses. Intestate distribution would always be per stirpes in all cases of unequal degrees; but in the construction of wills the English courts made division per capita in all gifts to individuals and classes united, such as to my son A and the children of my son B. 9 These decisions have been followed by American courts, when the beneficiaries were lineal descendants of the testator, 10 and when they were not. 11 But courts have often spoken of this con- struction as technical, and availed themselves of slight 8 Per Stirpes. As In the following cases : After my wife's decease to be "equally divided between her relations and mine." Young's Appeal (1876), 83 Pa. St. 59. "To the heirs of my late husband and to my heirs equally." Bassett v. Granger (1868), 100 Mass. 348; Ross v. Kiger (1896), 42 W. Va. 402, 26 S. E. 193. "The balance * * * to be di- vided equally between my brothers and sisters, and the children of deceased brothers and sisters, and the brothers and sisters of P, deceased, and the children of deceased brothers and sis- ters, except the following," etc. Henry v. Thomas (1888), 118 Ind. 23, 20 N. E. 519. Surplus "to all the legatees named in this will to be equally divided among them all, all to share and share alike," was held to require equal additions to each legacy, not equal gifts to each individual benefited thereby. Ruggles v. Randall (1897), 70 Conn. 44, 38 Atl. 885. 9Blackler v. Webb (1726), 2 P. Wms. 383 ; 2 Bigelow's Jarman *1051. 10 As in the following : Harris v. Philpot (1848), 5" Ired. Bq. (40 N. Car.) 324. The decisions are reviewed at length in Collins v. Feather (1903), 52 W. Va. 107, 43 S. E. 323, 61 L. R. A. 660, making division per capita of a residue "to be equally divided among my heirs above named." li Division per Capita was made in the following cases: To nephews by name and children of brothers by class description. Scotfs Estate (1894), 163 Pa. St. 165, 29 Atl. 877. "All the balance of my estate both real and personal be equally divided between W, P, and the children of J and M, and the children of E." John- son v. Knight (1895), 117 N. Car. 122, 23 S. E. 92. "Whatever money shall be left after paying the different sums given to my heirs in this will shall be equally di- vided between them," the testator's brothers and sisters and the children of deceased brothers and sisters. Mc- Kelvey v. McKelvey (1885), 43 Ohio St. 213, 1 N. E. 594. The residue "to be divided equally between my sister W and her children, and my brother S." Morrison's Estate (1903), 138 Cal. 401, 71 Pac. 453. "Between H. and E. Cole's children and A." Cole v. Creyon (1833), 1 Hill Ch. (S. Car.) 311, 26 Am. Dec. 208. "I give, bequeath and devise unto my cousins and the children of my mother's cousins, all the rest * * * to be equally divided between them." Farmer v. Kimball (1866), 46 N. Ham. 435, 88 Am. Dec. 219. Residue "to my brother J, sister H, and my deceased sister S's children (said children to inherit their mother's share), and the brothers and sisters of my beloved wife." Smith v. Curtis (1862), 29 N. J. L. 345. "All the remainder of my estate must be equally divided between my sister and my wife's brothers and sisters." Kling v. Schnellbecker (1899), 107 Iowa 636, 78 N. W. 673. §488 WILLS. 324 circumstances to avoid application of it; 12 and in several courts the rule seems to be repudiated entirely, division being made per stirpes in such cases in the absence of a different direction." 12 In the following cases division between Individuals named and those taking under a class designation was made per stirpes by reason of some slight indication of such an intention found in the context or circumstances. Balcom v. Haynes (1867), 14 Allen (96 Mass.) 204; Eyer v. Beck (1888), 70 Mich. 179, 38 N. W. 20 ; Ferrer v. Pyne (1880), 81 N. Y. 281 ; Vincent v. Newhouse (1881), 83 N. Y. 505; Lee v. Baird (1903), 132 N. Car. 755, 44 S. E. 605; Risk's Appeal (1866), 52 Pa. St. 269, 91 Am. Dec. 156; Lott v. Thompson (1891), 36 S. Car. 38, 15 S. E. 278; Hoxton v. Griffith (1868), 18 Gratt. (Va.) 574. "Equally divided between the heirs of my mother, L, and my wife." Perk- ins v. Stearns (1895), 163 Mass. 247, 39 N. E. 1016. So also in the following; "To my sisters or their heirs, equal to all." Taylor v. Fauver (1897), — Va. — , 28 S. E. 317. Under a devise to J and L and the children of M, M's children were held to take only one share per stirpes, be- cause It would seem that the testator did not know their number or regard it important. Bethel v. Major (1902, Ky.), 68 S. W. 631. 13 Division Per Stirpes Among De- scendants was made on that ground in the following cases : Remainder "shall be equally divided among my children then living and the descendants of such as may be dead, share and share alike." Wood v. Rob- ertson (1887), 113 Ind. 323, 15 N. E. 457. "I give and devise to my three daughters, M, S, and J, and to the children of my son S, my homestead, to them and their assigns forever, share and share alike." Lyon v. Acker (1866), 33 Conn. 222. "To my daughters H and M, and the children and heirs of my sons B and C, to be divided equally between them." The court said : "The word 'heirs,' ex vl termini implies representation, and in this respect is not changed by being coupled with the word children." Ash- burner's Estate (1894); 159 Pa. St 545, 28 Atl. 361. Division Per Stirpes Between Col- lateral Kin. In the following caseB division was made per stirpes between collaterals, for the same reason : To the children of a brother of the testator and the descendants of any deceased child : Rhode Island H. T. Co. v. Harris (1898), 20 R. I. 408, 39 Atl. 750. "The residue of my estate I give to the following named persons to be divided equally between them, my sis- ters R and S, and the grandchildren of my deceased brother W, and the grandchildren of my deceased sisters D and M." Raymond v. Hillhouse (1878), 45 Conn. 467, 19 Alb. L. J. 522. "It is my will that said Barbara (a sister) and the children of my brother A and M shall have the residue, share and share alike." Barbara was dead when the will was written, and her children took by force of the statute. The court said : "By thus expressing himself he seems to make three classes and three equal shares. In another clause he makes his thought more doubtful. What then can we do but resort to the usual distribution of the law for an analogy to help us out?" Minter's Appeal (1861), 40 Pa. St. 111. On similar facts the same court said in an earlier case : "In construing such devises in favor of the next of kin we cannot reject our legal cus- tomary principles governing the de- scent of estates, and according to them, distribution goes by classes, and this must be presumed to be the in- tention of testators generally, unless the contrary appears." Fissel's Ap- peal (1856), 27 Pa". St. 55. "1 also give to S; and the children of L and J, B and D, children of R, all the lands," &c. Fraser v. Dillon (1887), 78 Ga. 474, 3 S. E. 695. A similar decision was made in White v. Holland (1893), 92 Ga. 216, 18 S. E. 17, 44 Am. St. Rep. 87, on a devise "to be divided equally between D, H, and the lawful children of G," 325 ASCERTAINING BENEFICIARIES. § 489 § 489. Effect of Modifying Words. It has often been insisted that a division into two shares is intended by use of the word "between," while "among" would in- dicate a larger number of shares. 14 Also, that by use of the word "equally," or by saying "share and share alike," division per capita is required. 16 But a mere glance at the quotations from wills in the preceding pages will show that little is added by any of these words. Of course the division will be equal, and all the shares will be alike, in the absence of a different direction. The question is whether the division is to be between the classes or the individuals, on which little or no light is given by such expressions. 18 The careful draftsman will specify that the division is to be per stirpes, or the contrary. on proof that the persons named were 219 ; Eling ▼. Schnellbecker (1899), brothers and sisters of the testatrix, 107 Iowa 636, 78 N. W. 673. and holding parol evidence of her af- 15 Kejler v. Vigas (1884), 112 111. fections competent to aid the construe- 242, 54 Am. Rep. 235 ; Walker v. tion. Webster (1897), 95 Va. 377, 28 S. B. 14 Morrison's Estate (1903), 138 Cal. 57.0. 401, 71 Pac. 453; Farmer v. Kimball 16 Aghburner's Estate (1894), 159 (1866), 46 N. Ham. 435, 88 Am. Dec. Fa. St. 545, 28 Atl. 361. CHAPTEE XV. ASCERTAINING WHAT PROPERTY IS INCLUDED. § 490. Forecast. 1. General Rules as to Description of Property. § 491. A Good General De- scription is not Vitiat- ed by a False Particu- lar Description. § 492. Where There Is a Resi- duary Clause, and Gen- eral Words in Another Clause with an Enu- meration of Things. § 493. Enumeration Excludes Implication, Exception Extends and Creates Implication. §494. A Clear Gift is not De- feated or Cut Down by Later Expressions. §495. A Gift is Made With- out Any Express Words. § 496. It is Presumed that the Testator Intended the Will to Operate on All His Property. § 497. Heirs Can be Disinherit ed Only by Gift. 2. Construction of Particular Expres- sions. § 498. Household Goods and Furniture. § 499. Money. § 500. Estate. § 501. Property. § 502. Effects. 3. Construction of General Devises. § 503. Land, Real Estate, &c. — What Estates are In- cluded. § 504. Presumed to In- clude Subject of Power. ——What Passes as §505. Part of Land. 4. Construction of Specific Devises. § 506. What Included. 5. Conflicting Descriptions. § 507. Conflicting Gifts. 5 508. Effect of Conflicting Descriptions of Same Gift. i 509. Same — Qualifi- cation Disregarded Be- cause of Name. S a m e — Other §510. Grounds for not Re- stricting. § 511. Relative Strength of Descriptions. § 512. Two D e s c r i ptions — Whether Several or Double. 6. False Descriptions. § 513. General Rule. § 5i4. Application of Rule. 7. Uncertain and Insufficient Descrip- tions. § 515. What is Sufficient. § 516. Descriptions Fatally De- fective. 8. Personal Property Described by Lo- cation. § 517. Securities Found in the Place. § 518. Arrivals and Removals. § 519. Debtors Living in Place. 9. Residuary Clauses. § 520. What is a Residuary Clause. § 521. General Residuary Clauses. § 522. Particular Residue. 10. From What Time the Will Speaks. § 523. Specific Bequests. § 524. General Bequests. § 525. Devises at Common Law. § 526. Devises Under the Stat- utes. § 527. Intention to Restrict to Property Then Owned. § 528. Specific Devises Under the Statutes. § 529. Retroactive Effect of the Statutes. § 490. Forecast. Having considered the principal questions that arise concerning the persons to take, we 326 327 ASCERTAINING WHAT PEOPEETY IS INCLUDED. § 491 will now give attention to the questions that most fre- quently arise as to what property is included in the various gifts. 1. GENEEAL EITLES AS TO DESCEIPTION OF PEOPEETY. § 491. A good general description is not vitiated by a false particular description. 17 § 492. Where there is a residuary clause, and general words of description in another clause precede or fol- low in connection with an enumeration of things, the general words are usually understood to cover only things of the same kind as those enumerated. Words are known by the company they keep. For example, "all my household furniture, wearing apparel, and all the rest and residue of my personal property," includes provisions, books, plate, watch, car- riages, and domestic animals; but does not include money, stocks, and securities. 18 Where there is no resid- uary clause in the will, and all the more if the words themselves occur in such a clause, the courts are in- clined to give the general words their full scope to avoid partial intestacy; and an intention that they should be given full scope may appear from the context in other cases. 19 §493. Enumeration excludes implication, exception extends and creates implication. When the description of the donees or property given is followed by an exception of persons or things not falling within the terms of the previous description, for 17 See post § 513. N. H. 289, 56 Am. Rep. 512. A similar 18 Andrews v. Schoppe (1892), 84 decision on similar facts and a review Me. 170, 24 Atl. 805 ; Johnson v. Goss of many cases will be found in Peas- (1880), 128 Mass. 433; Dole v. John- lee v. Fletcher (1888), 60 Vt. 188, 14 son (1862), 3 Allen (85 Mass.) 364; Atl. 1, 6 Am. St. Rep. 103, Mechem Lippincott's Estate (1896), 173 Pa. 102. See also: Ludwig v. Bungart St. 368, 34 Atl. 58; Hammersley, In (1900), 33 Misc. 177, 67 N. T. S. 177; re (1899), 81 Law Times 150. Fenton v. Fenton (1901), 35 Misc. 479, "Every article of household furni- 71 N. T. S. 1083. tnre, including piano, books, shells, and 19 Given v. Hilton (1877), 95 U. S. every other article of personal prop- 591. erty in and about said homestead," But see Allen's Succession (1896), does not include bonds, notes, nor bank 48 La. An. 1036, 20 South. 193, 55 stock. Benton v. Benton (1884), 63 Am. St. Rep. 295. §494 WILLS. 328 example, "all my household furniture except my watch," the previous description is thereby enlarged to include everything of the same nature as the things excepted. 20 §494. A clear gift is not defeated or cut down by later expressions less clear and certain. 21 Provisions are not affected by inadequate reasons given for them, erroneous conclusions as to their effect, nor false recitals of them later. 22 A beneficial gift is not subjected to a trust by the addition of words of mere hope, trust, or admonition, unless they import a command; which the courts are not now inclined lightly 20 Bigelow's Jarman, ** 990, 711 ; Carnagy v. Woodcock (1811), 2 Munf. (Va.) 234, 5 Am. Dec. 470; Hotham v. Sutton (1808), 15 Ves. 319; Reid v. Eeid (1858), 25 Beav. 469; Crawhall's Trust (1856), 8 DeGex M. & G. (57 Eng. Ch.) 480, 2 Jur. n. s. 892. 2i Gift not Cut by Implication. Illinois — Seager v. Bode (1899), 181 111. 514, 55 N. E. 129. Indiana — Bruce v. Bissell (1889), 119 Ind. 525, 531, 22 N. B. 4, 12 Am. St. Eep. 436; Sturgis v. Work (1889), 122 Ind. 134, 22 N. E. 996, 17 Am. St. Rep. 349. Kansas — Boston S. D. & T. Co. v. Stich (1900), 61 Kan. 474, 59 Pac. 1082. Mississippi — Johnson v. Delome L. & P. Co. (1899), 77 Miss. 15, 26 So. 360. Missouri — Underwood v. Care (1903), — Mo. — , 75 S. W. 451. New Jersey — Rogers v. Rogers (1891), 49 N. J. Eq. 98, 23 Atl. 125. Jfew York — Freeman v. Colt (1884), 96 N. T. 63 ; Banzer v. Banzer (1898), 156 N. T. 429, 51 N. E. 291, 4 Pro. R. A. 116. Pennsylvania — Tost v. McKee (1897), 179 Pa. St. 381, 36 Atl 317, 57 Am. St. Rep. 604. Tennessee — Meacham v. Graham (1896), 98 Tenn. 190, 39 S. W. 12, citing decisions in twelve states. Virginia — Barksdale v. White (1877), 28 Gratt. (Va.) 224, 26 Am. Rep. 344. West Virginia — Smith v. Schlegel (1902), 51 W. Va. 245, 41 S. E. 161. A gift in fee was held to be cut to a life estate by adding the words: "None of my aforesaid children shall have a right to sell or assign their land or property ; neither shall they have a right to encumber it with debts or liens ; but the land shall remain free for their children and heirs." Ulrich's Appeal (1878), 86 Pa. St. 386. But see Hochstedler v. Hochstedler (1886), 108 Ind. 506, 9 N. E. 467. A devise of "All my property in- cluding real estate," to M, is not abridged by the addition, "I desire said M and her daughter to have the exclu- sive benefit, * * * f ree from any control of R," who was M's husband. Balliett v. Veal (1897), 140 Mo. 187, 41 S. W. 736. On the subject of this section see note 4 Pro. R. A. 121. 22 See as to gifts induced by mis- take, ante § 165 ; as to revocation in- duced by mistake, ante §§ 329, 359 ; and as to general intent being allowed to prevail, ante § 422. Bequests "unto my brother William Young's children the sum of $1000 each," there being seven of them, is not cut down by the recital, "and after paying the above sum of $5,000 dol- lars," etc. Thompson v. Young (1866), 25 Md. 450. 23 Precatory Words: Martl's Estate (1900, Cal.), 61 Pac. 964; Bryan v. Milby (1891), 6 Del. Ch. 208, 24 Atl. 333, 13 L. R. A. 563 and note; Orth V. Orth (1896), 145 Ind. 184, 42 N. E. 277, 44 N. E. 17, 57 Am. St. Rep. 185, 32 L. R. A. 298 ; Le Sage v. Le Sage (1903), 52 W. Va. 323, 43 S. E. 137, and see note to 6 L. R. A. 353. 329 ASCERTAINING WHAT PROPERTY IS INCLUDED. § 495 to infer. 23 But if the later clause is clearly intended to restrict it, it must be given effect. 24 § 495. A gift is made without any express words of gift if an intention to give clearly appears from the will as a whole. For example, a gift to the testator's heirs after the death of A gives A an estate for life by implication. 25 A devise to Thomas till his son became of age, but if the son should die under age then over to John, was held to create a devise to the son by implication. 28 "While not entirely reconcilable in the application of the rule, courts generally agree, that to justify finding a gift by implication the probability must be so strong that no one reading the will could suppose a contrary inten- tion being in the mind of the testator. 27 A recital that the testator has by the very instrument containing the recital made a gift which he has not in fact made, is 24 Mansfield v. Shelton (1896), 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285; Fenstermaker v. Holman (1902), 158 Ind. 71, 62 N. E. 699; Iimas v. Neidt (1897), 101 Iowa 348, 70 N. W. 203; Robinson v. Finch (1898), 116 Mich. 180, 74 N. W. 472. A will bequeathed to the wife "all the residue" "for her own separate use and behoof. Item 4. It is my will that if said Susan again marries, I give her one third of my estate for herself and her heirs." On her mar- riage it was held that she was entitled to only the third and not to all. Ben> iMstt v. Packer (1898), 70 Conn. 357, 39 Atl. 739. 25 Nicholson v. Drennan (1891), 35 S. Car. 333, 14 S. E. 719; Ralph v. Carrick (1879), 11 Ch, Div. 873, 40 L. T. 505, 48 L. J. Ch. 801,— A. C. ; Springfield, in re (1894), 3 Ch. Div. 603, 64 L. J. Ch, 201. 26Goodright v. Hoskins (1808), 9 East 306. A direction to pay to the testator's widow $600 a year till death or mar- riage, and the rest of the income dur- ing her life to the testator's brother or if the executor and brother should prefer to sell the land, then to pay out of the proceeds $600 a year to the widow till death or marriage and the rest to the brother, was held to entitle the brother to the unsold land on the marriage of the widow. Masterson v. Townshend (1890), 123 N. Y. 458, 25 N. E. 928, 10 L. R. A. 816. See also Barnard v. Barlow (1892), 50 N. J. Eq. 131, 24 Atl. 912; Barlow v. Bar- nard (1894), 51 N. J. Eq. 620, 28 Atl. 597; Peckham v. Lego (1889), 57 Conn. 553, 19 Atl. 392, 14 Am. St. Rep. 130. A devise to a daughter "but should she die without leaving a family," then over, implies a devise to her family if she leaves one. Beilstein v. Beil- stein (1899), 194 *Pa. St. 152, 45 Atl. 73, 75 Am. St. 692. 27McMichael v. Pye (1885), 75 Ga. 189; Lynes v. Townsend (1865), 33 N. T. 558; McCown v. Owens (1897), 15 Tex. Civ. App. 346, 40 S. W. 336. See also cases cited below. In Face of Express Provision. A devise in fee is not to be readily in- ferred if the will contains an express gift of a less estate. Reirhardt, In re (1887), 74 Cal. 365, 16 Pae. 13; Suth- erland v. Sydnor (1888), 84 Va. 880, 6 S. E. 480. But that fact is not absolutely controlling. Boston S. D. & T. Co. v. Coffin (1890), 152 Mass. § 496 WILLS. 330 evidence of an intention thereby to give. But no such inference arises from a recital that some one has rights to property or will obtain them in some other way. 28 § 496. It is presumed that the testator intended the will to operate on all his property. Such a construction should be adopted as will avoid partial intestacy if possible. 29 Such a construction is the more imperative if an in- tention to make a complete disposition is manifest throughout the will; but even then particular provisions cannot be enlarged beyond their legitimate meaning, 1 nor given a different effect than the testator evidently intended on the ground that he misapprehended the legal effect of the provisions he made. 30 The force of this presumption is always moderated by the opposing prin- ciple that the heirs are not to be disinherited except by express gift or clear implication, 31 a principle which had such force at the common law that a devise without lim- itation was construed to be for life only. 32 95, 25 N. E. 30, 8 L. E. A. 740; Robin- (1898), 156 N. T. 181, 50 N. E. 859; son v. Greene (1883), 14 R. I. 181, 191. Saxton v. Webber (1893), 83 Wis. 617, 28 Gifts not Implied from Re- 53 N. W. 905, 20 L. R. A. 509 ; Webb Cital. Adams v. Adams (1842), 1 v. Archibald (1895), 128 Mo. 299, 34 Hare (23 Eng. Cb.) 537; Zimmerman S. W. 54. And see note 3 Pro. R. A. v. Hafer (1895), 81 Md. 347, 355, 32 267. Atl. 316; Hunt v. Evans (1891), 134 l Given v. Hilton (1877), 95 TJ. S. 111. 496, 25 N. E. 579, 11 L. R. A. 185 ; 591 ; Bourke v. Boone (1902), 94 Md. Boles v. Caudle (1900), 126 N. Car. 472, 51 Atl. 396; Boston S. D. & T. 352, 35 S. E. 604; Hatch v. Ferguson Co. v. Coffin (1890), 152 Mass. 95, 25 (1893), 57 Fed. Rep. 959, 971; Benson- N. E. 30, 8 L. R. A. 740; Oldham v. v. Hall (1894), 150 111. 60, 36 N. E. York (1897), 99 Tenn. 68, 41 S. W. 947. But see Williams v. Allen (1855), 333. 17 Ga. 81, 87. 30 Young's Estate (1899), 123 Cal. A declaration of intention to grant 337, 55 Pac. 1011 ; Kelly v. Nichols by deed, does not amount to a devise. (1891), 17 R. I. 306, 21 Atl. 906, 19 Hurlbut v. Hutton (1886), 42 N. J. L. R. A. 413; State v. Holmes (1898), Eq. 15, 28, 6 Atl. 286. 115 Mich. 456, 73 N. W. 548 ; Martin's A direction to the executors to have Estate (1898), 185 Pa. 51, 39 Atl. the testator's sons legitimated "and all 841. three considered lawful heirs" did not 31 Peckham v. Lego (1889), 57 Conn, entitle them to take. Oliver v. Powell 553, 19 Atl. 392, 14 Am. St, Rep. 130 ; (1902), 114 Ga. 592, 40 S. E. 826. Graham v. Graham (1883), 23 W. Va. 29Hardenberg v. Ray (1893), 151 U. 36, 48 Am. Rep. 364; Barlow v. Bar- S. 112, 126; Le Breton v. Cook (1895), nard (1893), 51 N. J. Eq. 620, 28 Atl. 107 Cal. 410, 40 Pac. 552; Whltcomb 597. v Rodman (1895), 156 111. 116, 40 N. 82 For discussion of this presumption E. 553, 28 L. R. A. 149, 47 Am. St. and the statutes changing the rule see Rep. 181 ; Johnson v. Braslngton post § 539. 331 ASCEETAINING WHAT PBOPEETY IS INCLUDED. § 497 § 497. Heirs can be disinherited only by express gift or necessary implication. 33 Under the influence of the feudal doctrines, and the desire to maintain an aristocracy, the English judges were astute in finding reasons to favor the heir. No such policy exists here. Nevertheless, the law appoints definite methods and channels of disposition of all intes- tate property. The heirs take by operation of law, without any act or will of the intestate. He can deprive them only by exercising the option the law gives him of disposing of it while he lives or giving it to others by will. If he says, "I wish my sons to have only one dollar each from my estate," or "I give this property to my wife in satisfaction of all her claims on my estate," he does not thereby give the rest of his property to any- one else, either expressly or by implication. It does not matter how clearly the testator or intestate has ex- pressed his wish that it should be otherwise, the intestate property must be distributed according to law. The unfavored children will take their regular share; 34 and the widow must be given her share of the intestate prop- erty though she has elected to take under the will which declared that if she took under it she should have no more. 35 There are cases in which this rule has been in- voked to determine a doubt as to whether the testator intended by his words to include certain estates in the gifts or to die intestate as to them. 36 But in general such considerations are overborne by the more natural 38 See history of this rule in an ar- tra: Tabor v. Mclntire (1881), 79 tide by Judge Baldwin in 1 Col. Law. Ky. 505. And see McGovran's Estate Rev. 521-528 (1901). (1899), 190 Pa. St. 375, 42 Atl. 705. 34Boisseau v. Aldridges (1834), 5 35 Nickerson v. Bowly (1844), 8 Leigh (Va.) 222, 27 Am. Dec. 590; Mete. (49 Mass.) 424; Skellenger v. Coffman v. Coffman (1888), 85 Va. Skellenger (1880), 32 N. J. Eq. 659, 489, 8 S. E. 672, 2 L. R. A. 848, 17 Am. H. & B. Eq. Cas. 434 ; State v. Holmes St. Rep. 69; Gallagher v. Crooks (1898), 115 Mich. 456, 460, 73 N. W. (1892), 132 N. T. 338, 30 N. E. 746; 548; Mathews v. Krisher (1899), 59 Lawrence v. Smith (1896), 163 111. Ohio St. 562, 53 N. E. 52; Bennett v. 149, 166, 45 N. E. 259; Wells v. An- Packer (1898), 70 Conn. 357, 39 Atl. derson (1899), 69 N. H. 561, 44 Atl. 739. 103; Wilder v. Holland (1897), 102 36 Lynes v. Townsend (1865), 33 N. Ga. 44, 29 S. E. 134; Bourke v. Boone T. 558; Sutherland v. Sydnor (1888), (1902), 94 Md. 472, 51 Atl. 396. Con- 84 Va. 880, 6 S. E. 480 ; Bartlett v. §498 WILLS. 332 presumption that he intended by the will to dispose of all he might have at his death. 37 2. CONSTETJCTION OF PAETICULAE EXPRESSIONS. § 498. Household Goods and Furniture. 38 A. bequest of household goods and furniture, unexplained, includes everything that is usually enjoyed with the house- carpets, stoves, china, silverware, bedding, table linen, etc., 39 and would not include books in the library, 40 stock in trade, 41 nor jewelry or other articles of personal use and ornament. 42 Kitchen supplies, such as wines, Patton (1889), 33 W. Va. 71, 10 S. B. 21, 5 L. R. A. 523 ; Miller v. Wor- rall (1901), 62 N. J. Eq. 776, 48 Atl. 586, 90 Am. St. Kep. 480. 37 See post §S 523-528. 38 See note as to furniture, 47 Am. Rep. 197. 39 What is Furniture, &c. Bndieott V. Bndieott (1886), 41 N. J. Eq. 93, 3 Atl. 157; Ruffln v. Ruffin (1893), 112 N. Car. 102, 16 S. E. 1021, excluding silver ; Chase v. Stockett (1890), 72 Md. 235, 240, 19 Atl. 761, passing china and plated ware, as "furniture except family portraits and silver- ware." Richardson v. Hall (1878), 124 Mass. 228, 237, ornamental pic- tures, and bronze statuary, distributed and used in various parts of the home- stead devised to the same person. English Cases. Pellew v. Horsford (1856), 25 L. J. Ch. 352, 2 Jur. u. s. 514, 4 W. R. 442, a clock, and some household goods never even In the house; Hele v. Gilbert (1752), 2 Ves. Sr. 430, china; Kelly v. Powlet (1763), Amb. 605, china, though never used, linen, and hanging pictures ; Cremorne v. Antrobus (1828), 5 Russ. (5 Eng. Ch.) 312, 7 L. J. Ch. u. s. 88, linen, plate, and ornamental pictures ; Field v. Peckett (1861), 29 Beav. 573, 30 L. J. Ch. 813, 7 Jur. n. s. 983, 4 L. T'. n. s. 549, 9 W. R. 526, passing orna- mental snuff boxeB of gold, silver, and china, as "household furniture, plate, china, and other household effects ;" also passing china cabinets ordered hut not delivered before the testator's death. 40 Books and Library. Ruffln v. Ruffln (1893), 112 N. Car. 102, 16 S. E. 1021; Brldgman v. Pove (1744), 3 Atk. 201; Kelly v. Powlet (1763), Amb. 605, Dick. 359; Cremorne v. An- trobus (1828), 5 Russ. (g Eng. Ch.) 312, 7 L. J. Ch. o. s. 88. But the library was held to pass when the hpuse was given to the same person, and it appeared that the testa- tor intended it not to be dismantled, but used by his family. Ouseley v. Anstruther (1847), 10 Beav. 53; Car- nagy v. Woodcock (1811), 2 Munf. (Va.) 234, 5 Am. Dec. 470. In Corne- wall v. Cornewall (1841), 12 Simons (35 Eng. Ch.) 298, books were held to pass as "furniture and other arti- cles of domestic use and ornament." In Hutchinson v. Smith (1863), 8 L. T. 602, 11 W. R. 417, books were in- cluded as "furniture * * * and other stock." 4i Stock im Trade. Hoope's Appeal (1869), 60 Pa. St. 220, 100 Am. Dec. 562, holding all furniture to pass as "household furniture" though most of it was used by testatrix's boarders in her boarding school ; LeFarrant v. Spencer (1748), 1 Ves. Sr. 97, plate kept for sale; Stuart v. Bute (1804), 11 Ves. 657, not included in "furni- ture, books, goods, and chatties ;" Manning v. Purcell (1855), 7 DeGex M. & G. (56 Eng. Ch.) 55, 3 Eq. R. 387, 24 L. J. Ch, 522, 3 W. R. 273, holding furniture in a hotel conducted by the testator apart from his resi- dence did not pass as "household fur- niture, plate, books, linen, wearing ap- parel, &c." 42 Jewelry and Ornaments. Kim- ball's Will (1898), 20 R. I. 619, 40 Atl. 847, watch, chain, clothing and jewelry. Jjudwig v. Bungart (1900), 33 N. T. Misc. 177, 67 N. T- S. 177; Manton y. Tahois (18.85), 30 Ch. D. 92, 54 L. J. Ch. 1008, 53 L. T. 333 ASCERTAINING WHAT PROPERTY IS INCLUDED. § 499 spices, vegetables, etc., do not pass under a bequest of furniture. 43 §499. Money. 1 A gift Of money in a will unex- plained by the context must be understood in its ordinary popular sense, to mean gold, silver, paper currency of the country, and deposits in bank for safekeeping, sub- ject to immediate call, and excluding all other demands and personal property, 44 But cases are numerous in which by reason of the context "money" has been held to embrace all demands payable in money, a common in- ference when the testator speaks of the money as being 289, 33 W. E. 832, not including jewel- ry, tricycles, and scientific Instru- ments ; Tempest v. Tempest (1856), 2 Kay & J. Ch. 635, a portrait of a mem- Tier of the family, set with diamonds ' and rubies in a rich frame, also a cabi- net of medals ; Northey v. Paxton (1888), 60 Law. T. 30, jewelry. Orchids growing In pots occupying three rooms in the house passed as "furniture * * * and other articles of household or domestic use or orna- ment." In re Owen (1898), 78 L. T. 643. Steam Yacht. In Parry's Estate (1898), 188 Pa. St. 33, 41 Atl. 448, a steam yacht was held not to pass as "household and kitchen furniture * * * bric-a-brac, and articles of personal use and ornament." 43 Porter v. Tournay (1797), 3 Ves. 311. "The rest of my plate and house- hold effects" was held to pass wines found in the house. Brlnkerhoff v. Farias (1900), 65 N. Y.S. 358. l See copious notes on "money" in 6 Pro. R. A. 26. 44 Scope of word Money. Mann v. Mann (1814), 1 Johns. Ch. 231, Eedf. Cas. Wills 528, affirmed (1816), 14 Johns. 1, 7 Am. Dec. 416, "all the rest, "residue, and remainder, of the money belonging to my estate at the time of my decease," held not to include mortgages, bonds, or other choses in action; Hancock v. Lyon (1892), 67 N. Hajnp. 216, 29 Atl. 638, ••what money I may have on hand," and "What money may be remaining at my decease," held to include money in oank subject to check, but not money in sayings-bank at a distance, from which it could be drawn only on cer- tain terms; Levy's Estate (1894), 161 Pa. St. 189, 28 Atl. 1068, "if any money not disposed of in my name is to my credit, I wish, &c.," held not to be a residuary clause, and to pass only money as defined in the text ; Beatty v. Lalor (1862), 15 N. J. Eq. 108, "all the residue and remainder of my moneys not above disposed of, that is of moneys which I may have at the time of my decease," followed by a bequest of "whatever personal property is not hereinbefore disposed of," held not to include funds in a savings bank ; Wolf v. Schoeffner (1881), 51 Wis. 53, 8 N. W. 8, dis- tinguishing between "money" and "personal property;" Lowe v. Thomas (1854), 5 DeGex M. & G. (Eng. Ch.), 315, 2 Eq. E. 742, 23 L. J. Ch. 616, 18 Jur. 563, 2 W. R. 499, holding bonds and stocks to pass as the "whole of my money;" Sutton* In re (1885), 28 Ch. D. 464, 33 W. R. 519, "the whole of the money over which I have disposing power," held to include only cash in hand and bank account ; Par- ker v. Marchant (1843), 1 Phillips (19 Eng. Ch.) 356, 2 Y. & C. Ch. 279, 12 L. J. Ch. 314, 7 Jur. 457, affirming 1 Y. & C. Ch. 290, 11 L. J. Ch. 223, 6 Jur. 292, holding "ready money" to include account at bank subject to check; Manning v. Purcell (1855), 7 DeGex M. & G. (56 Eng. Ch.) 55, "all toy moneys," held to include two ac- counts at Ms bankers, one subject to chefcks and one drawing interest and not subject to check, but not to include money in deposit as Stake on a bet. §500 WILLS. 334 out of his own possession, or in the hands of another. 45 In other cases the context has been held to show an in- tention to include the whole personal estate, 46 and even real estate. 47 § 500. Estate. A gift of " my estate " or " the rest of my estate" carries both real and personal property, 48 45 Smith v. Burch (1883), 92 N. T. 228, "all the ready money I may have, either at bank or elsewhere," holding money collected for her by her hus- band and used by him to be included, reviewing many cases ; Gillen v.. Kim- ball (1878), 34 Ohio St. 352; Dillard v. Dillard (1897), 97 Va. 434, 34 S. E. 60, 5 Pro. E. A. 52, "all the money that may he in the hands of my said husband as my trustee," held to in- clude what he had loaned out of the fund; Byrom v. Brandreth (1873), L. R. 16 Eq. Cas. 475, 42 L. J. Ch. 824, 21 W. E. 942, "any money of which I may die possessed," held to include cash in the house, account at the bankers, and all demands of which she might have had immediate payment, but not apportioned part of an an- nuity, interest, accrued, nor a legacy not yet acknowledged as at her dis- posal. 46 Jenkins v. Fowler (1884), 63 N. Hamp. 244, "all my moneys after pay- ing all my just debts," held to pass savings-bank deposits and railroad stock not specifically devised, there being no other general residuary clause; Sweet v. Burnett (1892), 136 N. Y. 204, 32 N. E. 628, "from the money of my husband's estate now belonging to me," held to include the whole of said estate except the land ; Egan, in re (1899), 1 Ch. 688, 68 L. J Ch. 307, 80 L. T. 153, "any money not mentioned in the aforesaid be- quests that may be in my possession at my death, after payment of my debts, and funeral expenses," held to pass a reversionary gift in personalty which would not fall into possession for several years ; Cadogan, in re (1883), 25 Ch. D. 154, 53 L. J. Ch. 207, 49 L. T. 666, 32 W. E. 57, "one- half of the money of which I die possessed to H, and the remainder equally between O and S," held to pass the whole personal estate, se- curities, leaseholds, and furniture, be- cause there was no other disposition in the will, and for other reasons given by the court. 47 Miller, in re (1874), 48 Cal. 165, 17 Am. Eep. 422, in which the devise was : "I give, devise, and bequeath, all the estate, real, personal, and mixed, of which I may die possessed, * * • Seventh, and lastly, my mother shall receive the balance of my money for her benefit." This was held to pass the whole residue. A similar decision on similar facts is Jacobs's Estate (1891), 140 Pa. St. 268, 21 Atl. 318, 11 L. R. A. 767. Such an exten- sion of the meaning of the word can be justified only when an intention so to use it is manifested clearly by the words of the will. Sweet v. Burnett (1892), 136 N. Y. 204, 32 N. E. 628. Money in the Bank. A bequest of "all the money in the house and bank or on hand at the time of my death," held not to include deposit in the bank to the credit of the firm of which the testator was a member. Wilkinson's Estate (1899), 192 Pa. St. 127, 43 Atl. 411. A bequest of money in the "business bank" was held not to Include a sav- ings-bank deposit. Hawks, In re (1898), 24 Misc. 56, 53 N. Y. S. 372. 48 English — Cliffe v. Kadwell (1714), 2 L. Eaym. 1324. Connecticut — Warner v. Willard (1886), 54 Conn. 470, 9 Atl. 136. Massachusetts — Hunt v. Hunt (1855), 4 Gray (70 Mass.) 190. Missouri — Shumate v. Bailey (1892), 110 Mo. 411, 20 S. W. 178. Maine — Chapman v. Chick (1888), 81 Me. 109, 117, 16 Atl. 407. Pennsylvania — Commonwealth v. Hackett (1883), 102 Pa. St. 505 r Gra- ham v. Knowles (1891), 140 Pa. St. 325, 21 Atl. 398 ; McGovran's Estate (1899), 190 Pa. St. 375, 42 Atl. 705. Mississippi — Andrews v. Brumfleld (1856), 32 Miss. 107. New Jersey — Hartson V. Elden 335 ASCEBTAINING WHAT PKOPEETY IS INCLUDED. § 501 unless the scope is restricted by the context. 49 facie, it includes all that could be given. Prima § 501. Property. 50 Like estate, property is a word of such wide scope that by it everything, real and per- sonal, vested and contingent, corporeal and incorporeal, that the testator can give, will pass, 51 unless a different intention appears from the context. 52 § 502. Effects. 53 Very slight aid from the context will suffice to pass land under a gift of effects, 54 which has even been declared to be equivalent to worldly sub- stance or property. 55 It is ordinarily held not to em- brace freehold estates in land; 56 but it comprehends (1892), 50 N. J. Eq. 522, 26 Atl. 561. Terns— Grimes v. Smith (1888), 70 Tex. 217, 8 S. W. 33. Virginia— Smith v. Smith (1867), 17 Gratt. (Va.) 268. 49 As in Miller v. Worrall (1901), 62 N. J. Eq. 776, 48 Atl. 586, 90 Am. St. Rep. 480; Crew v. Dixon (1891), 129 Ind. 85, 27 N. E. 728. In the early English cases the re- luctance of the courts to disinherit the heir caused them to give such ex- pressions a restricted meaning on Blighter indications of intention than any court would now ; as in Marchant v. Twisden (1712), Gilb. Eq. Eep. 30, 1 Eq. Cas. Abr. 211. "I give to my sons in equal shares of my estate" was held to show a. clear intention to give everything the testa- tor had. Zerbe v. Zerbe (1877), 84 Fa. St. 147. Life Insurance. A policy issued after the will was made, on the life of one who survives the testator, passes by a devise of "all the estate." Laugh- lin v. Norcross (1902), 97 Me. 33, 53 Atl. 834. so See note 14 Am. Dec. 576. siTanbenhan v. Dunz (1888), 125 111. 524, 17 N. E. 456; Laing v. Bar- bour (1876), 119 Mass. 523; White v. Keller (1895), 68 Fed. Rep. 797, 800, 15 C. C. A. 683, 687; Chapman v. Chick (1888), 81 Me. 109, 16 Atl. 407; Webb v. Archibald (1895), 128 Mo. 299, 34 S. W. 54; Tyrone v. Waterford (1860), 1 DeGex F. & J. (62 Eng. Ch.) 613, 29 L. J. Ch. 486, 6 Jur. n. s. 567, 8 W. R. 454. "All my personal property both real and personal" was held to give a fee in the land owned by the testator. Morgan v. McNeeley (1890), 126 Ind. 537, 26 N. E. 395. 52 As to which see : Taubenham v. Dunz, above ; Miller v. Worrall ( 1901 ) , 62 N. J. Eq. 776, 48 Atl. 586, 90 Am. St. Rep. 480; Fry v. Shipley (1895), 94 Tenn. 252, 29 S. W. 6 ; Howe's Ap- peal (1889), 126 Pa. St. 233, 17 Atl. 588. 53 See note 14 Am. Dec. 576. 64 As in Page v. Foust (1883), 89 N. Car. 447; Ruckle v. Grafflin (1898), 86 Md. 627, 39 Atl. 624 ; Hall v. Hall (1892), 1 Ch. D. 361, 61 L. J. Ch. 289, 66 L. T. 206, 40 W. R. 277— C. A. ; Smyth v. Smyth (1878), 8 Ch. D. 561, 38 L. T. 633, 26 W. R. 736; Sheridan, In re (1886), 17 L. R. Ir. 179, "tem- poral effects." 55 Hogan v. Jackson (1775), 1 Cow- per 299, often cited because of Lord Mansfield's comments on these three words used in the will in dispute ; Campbell v. Prescott (1808), 15 Ves. 500a; Adams v. Akerlund (1897), 168 111. 632, 48 N. E. 454. 56 It was held not to embrace land In the following cases : Doe d. Haw v. Earles (1846), 15 Mees. & W. 450; Price's Appeal (1895), 169 Pa. St. 294, 32 Atl. 455. 503 WILLS. 336 every sort of personal property, 57 unless restricted by the context. 58 3. CONSTETJCTION OF GENEEAL DEVISES.™ § 503. Land, Real Estate, Etc.— What Estates are Included. Devises of "my lands," "my real estate," and the like, without further specification, pass to the devisees all the testator's freehold 60 interests in land, whether in fee or for life, 61 whether in possession, rever- 67Reimer's Estate (1893), 159 Pa. St. 212, 28 Atl. 186, reviewing several decisions. 58 As in: Reynolds, In re (1891), 124 N. Y. 388, 26 N. B. 954; Lippen- cott's Estate (1896), 173 Pa. St. 368, 34 Atl. 58; O'Loughlin's Goods (18T0), 2 P. & D. 102 ; Rawlings v. Jennings (1806), 13 Ves. 39. 59 For peculiar phrases held to pass land, see note in 14 Am. Dec. 576, to report of Tolar v. Tolar (1824), 3 Hawks (N. Car.) 74, passing land as "all I possess, indoors and outdoors." «o Leaseholds at Common Law would not pass by a devise of lands, tenements, and hereditaments, if the testator had any freeholds to Which the terms could he applied. Taylor v. Taylor (1877), 47 Md. 295; Mann v. Mann (1814), 1 Johns. Ch. 231, 238, 7 Am. Dec. 416, 420, dictum ; Minnis v. Aylett (1794), 1 Wash. (Va.) 300; Rose v. Bartlett (1633), Cro. Car. 293; Thompson v. Lawley (1800), 5 Ves. 476, 2 B. & P. 303 ; Parker v. Mar- chant (1843), 12 L. J. Ch. 314, 7 Jur. 318; s. c. 5 M. & Gr. (44 E. C. L.) 496, 12 L. J. C. P. 170; Arkell v. Fletcher (1839), 10 Simons (16 Eng. Ch.) 299, 3 Jur. 1099; though the will was not sufficiently attested to pass lands; Chapman v. Hart (1749), 1 Ves. Sr. 27l ; and the clause in question was a residuary clause of "manors, messuages, lands, farms, tithes, tenements, hereditaments, and real estate, as Well copyhold as free- hold;" Holmes v. Milward (1878), 47 L. J. Ch. 522, 38 L. T. 38i, 26 W. fc. 608. "Real estate" Beems to have been given a narrower construction than "lands," "manors," &c. Compare : Whltaker v. Ambler (1758), 1 Eden 151; Lowther v. Cavendish (1T58), 1 Eden 99, Ambler 356. Included by Content. Leaseholds would pass as "real estate" at com- mon law if such appeared from the whole will to have been the testator's intention ; Goodman v. Edwards (1833), 2 Mylne & K. (8 Eng. Ch.) 759 ; or if he had no freeholds : Gully v. Davis (1870), L. R. 10 Eq. Cas. 562, 39 L. J. Ch. 684. Included by Statute. By the stat- ute Of Wills, 1 Vic. (1837), c. 26, §26,, it is enacted that a devise of lands or a general devise which would describe a leasehold if the testator had no free- hold shall be construed to include leaseholds unless a contrary intention appears by the will. Gully v. Davis (1870), L. R. 10 Eq. Cas. 562, 39 L. J. Ch. 684; Swift v. Swift (1860), 1 DeGex F. & J. (62 Eng. Ch.) 160, 29 L. J. Ch. 121, 1 L. T. (N. S.) 150, 8 W. R. 100. But even under this stat- ute leaseholds are held not to pass as under a devise of "real estate." Stone v. Greening (1843), 13 Simons (36 Eng. Ch.) 390 ; Butler- v. Butler (1884), 28 Ch. D. 66, 52 L. T. 90, 54 L. J. Ch. 197, 33 W. R. 192. Similar statutes have been enacted In a few of our states : Kentucky — Statutes (1899), § 4844. Virginia — Code (1887), § 2525. West Virginia — Code (1899), c. 77, §14. eiWatkins v. Lea (1802), 6 Ves. 633, 642; Weigall v. Brome (1833), 6 Simons (9 Eng. Ch.) 99, "all my real estate," though some parts of the will were inapplicable to life Interests. Fitzroy v. Howard (1828), 3 Rus- sell (3 Eng. Ch.) 225, 7 L. J. Ch. (o. s. ) 16, passing church leasee for lives and the benefit of subsisting leases under them by "all my lands In the counties of H & G and all my other real estate." 337 ASCERTAINING WHAT PROPERTY IS INCLUDED. § 503 sion, 62 remainder, or other future estate; 63 whether vested or contingent if transmissible to his heirs; 64 whether held in severalty or in common; 65 whether his estate is legal and beneficial, a naked legal title, 66 or merely equitable, for example, if he has merely made a contract for the purchase, 67 or has only an equity of redemption under a mortgage, 68 but not when his only interest is as mortgagee. 69 62 Reversions. Irwin v. Zane (1879), 15 W. Va. 646; LeBreton v. Cook (1895), 107 Cal. 410, 40 Pac. 552; Steel v. Cook (1840), 1 Mete. (42 Mass.) 281 ; Hayden v. Stoughton (1827), 5 Pick. (22 Mass.) 528; Atty. Gen. v. Vigor (1803), 8 Ves. 256, 272; Sullivan v. Larkin (1899), 60 Kan. 545, 57 Pac. 105. Though the testator had other lands in possession : Atkyns y. Atkyns (1778), 2 Cowper 808; though the re- version was created by carving out another estate, by the same will, and the devise was of lands not before devised: Rooke v. Eooke (1703), 2 Vera. 461, Finch's Prec. Ch. 602, 1 Freem. 219 ; and he had attempted in the same will to devise such reversion to his own heirs as a remainder : Chester v. Chester (1730), Fitzg. 150, 3 P. Wms. 55, 2 Eq. Cas. Abr. 330, pi. 9. 63 2 Bigelow's Jarman *620. This would seem to be so at all events by virtue of the provisions found in most of the statutes to the effect that de- vises shall be construed to pass all the testator shall have power to dis- pose of at the time of his death. 84 Drew v. Wakefield (1865), 54 Me. 291, 297. Though the testator would be entitled to it only in case of his own death without issue : Ingilby v. Amcotts (1856), 25 L. J. Ch. 769, 2 Jur. n. s. 556, 4 W. E. 433. But see Honywood v. Honywood (1843), 2 T. & C. Ch. 471. 65 If partnership lands would not be treated as real estate in other cases, declarations of the testator in the will make them so. Todd v. McFall (1899), 9G Va. 754, 32 S. E. 472. 66 See ante § 368. Also Fuller's Estate (1898), 71 Vt. 73, 42 Atl. 981 ; Atwood v. Weems (1878), 99 U. S. 183. 22 "Trust estates pass by general words, because it is more convenient for those who are concerned In the trust to. find the devisee than the heir." Jackson v. Delancy (1816), 13 Johns. (N. T.) 536, 555, 7 Am. Dec. 403, 411; Rich- ardson v. Woodbury (1857), 43 Me. 206; Den d. Wills v. Cooper (1855), 25 N. J. L. 137, 161. Unless a contrary intent appear ; Buffum v. Town Coun- cil (1889), 16. R. I. 643, 19 Atl. 112, 7 L. R. A. 386, as by charging the gift with another trust. 67Greenhill v. Greenhill (1711), 2 Vera. 679, Finch's Prec. Ch. 320 ; Broome v. Monck (1805), 10 Ves. 597, 605; Collison v. Girling (1837), 4 Mylne & Cr. (18 Eng. Ch.) 63, 75. Though the purchase be not made the devisee is entitled to have the pur- chase money laid out in other lands for. the same use. Whittaker v. Whit- taker (1792), 4 Brown Ch. 31. 68 See ante § 369 ; Forrester v. Leigh (1753), Ambler 171, 174. 69 Webster v. Wiggin (1895), 19 R. I. 73, 31 Atl. 824, 28 L. R. A. 510; Winn v. Littleton (1681), 1 Vera. 3, 2 Vent. 351, 2 Ch. Ca. 51 ; Packman & Moss, In re (1875), 1 Ch. D. 214, 45 L. J.' Ch. 54, 34 L. T. 110, 24 W. R. 170. Lands originally held under an old mortgage passed by a general devise by a mortgagee in possession though no release of the equity of redemption appeared. Atty. Gen. v. Bowyer (1798), 3 Ves. 714; Atty. Gen. v. Vigor (1803), 8 Ves. 256, 276. "I give and devise to my sister my house and lot in Lacon" was held in- sufficient to pass a mortgage debt held by the testator on a house there, though he had no other house there. Marshall v. Hadley (1892), 50 N. J. Eq. 547, 25 Atl. 325. 504 WILLS. 338 §504. Presumed to Include Lands Subject to Power. The English courts held that general devises and bequests would not be presumed to be intended as execu- tions of powers of appointment unless the testator had no other property on which the words could operate, 70 or there was in the will some reference to the power or to the subject matter of it. 71 But that rule has been to The Leading Oases. Clere's Case (1599), 6 Coke 17b, by which the rule was established ; Andrews v. Emmot (1788), 2 Brown Ch. 297, a later lead- ing ease; Denn v. Roake (1830), 6 Bing. .(19 E. C. L.) 475, in which Clere's case was approved by the House of Lords. If there is no other property the power is deemed exercised by inten- tion to dispose of something. Cathey v. Cathey (1848), 9 Humph. (28 Tenn.) 470, 49 Am. Dec. 715. But when a married woman had no testamentary capacity, because of coverture, to make any will except In exercise of the power, it was held that the will did not operate as an exercise of the power, because a law was after- wards passed enabling married women to make wills generally, at which time she had acquired property on which it could operate. Burkett v. Whittemore (1891), 36 S. Car. 428, 15 S. E. 616, Mclver, C. J., and McGowan, J., dis- senting. And the burden was on the person claiming under the devise to prove that there was no other property, though requiring proof of a negative. Doe d. Caldecott v. Johnson (1844), 7 Man. & Gr. (49 E. C. L.) 1047. 71 Leading American Case. Blagge v. Miles (1841), 1 Story 426, Fed. Cas. No. 1,479, in which the whole doctrine is discussed by Judge Story. United States — Lee v. Simpson (1890), 134 TJ. S. 572, 590, 10 S. Ct. 631, 33 L. Ed. 1038 ; Blake v. Hawkins (1878), 98 D. S. 315. Alabama — Gin drat v. Montgomery Gas L. Co. (1886), 82 Ala. 596, 2 So. S27, 60 Am. Rep. 769. Connecticut — Holllster v. Shaw (1878), 46 Conn. 248. Delaware — Lane v. Lane (1903), — Del. — , 55 Atl. 184, which contains a very valuable review of the decisions on this subject, both English and American, and holds the power not exercised for want of reference to the power or the subject of it. Georgia — Terry v. Rodahan (1887), 79 Ga. 278, 5 S. E. 38, 11 Am. St. Rep. 420. Illinois — Funk v. Eggleston (1879), 92 III. 515, 34 Am. Rep. 136, review- ing the decisions at considerable length. Indiana — Bullerdlck v. Wright (1897), 148 Ind. 477, 47 N. E. 931, holding that an intention to execute appeared by the preamble saying, "in further execution of the will" creating the power. Maryland — Mory v. Michael (1861), 15 Md. 227; Foos v. Scarf (1880), 55 Md. 301 ; Cooper v. Haines (1889), 70 Md. 282, 17 Atl. 79. Mississippi — Andrews v. Brumfield (1856), 32 Miss. 107. Missouri — Turner v. Timberlake (1873), 53 Mo. 371. New Jersey — Meeker v. Breintnall (1884), 38 N. J. Eq. 345. New lorh— White v. Hicks (1865), 33 N. T. 383. Pennsylvania — McCreary v. Bom- berger (1892), 151 Pa. St. 323, 24 Atl. 1066, 31 Am. St. Rep. 760. Rhode Island — Cotting v. DeSar- tiges (1892), 17 R. I. 668, 24 Atl. 530, 16 L. R. A. 367; Mason v. Wheeler (1895), 19 R. I. 21, 31 Atl. 426, 61 Am. St. Rep. 734. South Carolina — Bilderback v. Boyce (1880), 14 S. Car. 528, holding a gift of residue, "whatsoever and whereso- ever," not to be in execution of the power, not referred to ; Burkett v. Whittemore (1891), 36 S. Car. 428, 15 S. E. 616. Tennessee — Cathey v. Cathey ( 1 848 ) , 9 Humph. (28 Tenn.) 470, 49 Am. Dec. 715. Virginia — Walke v. Moore (1898), 95 Va. 729, 30 S. E. 374. 339 ASCERTAINING WHAT PEOPEETY IS INCLUDED. § 504 abrogated by statute in. England, and quite generally in America. 72 A few of the states in which the rule has not been changed by statute have repudiated it entirely, and in others it is evaded on the slightest indication of intention expressed in the context. 73 In a few late de- cisions it is still given effect. But it will be seen that it no longer obtains generally. 72 statutes on Exercise of Pow- ers providing in substance that a general devise or bequest shall be pre- sumed to be made in exercise of the power unless a different intention ap- pears have been enacted in the fol- lowing states if not in others : England — 1 Vic. (1837), «;. 26, $ 27. California — Civil Code (1901), § 1330. Kentucky— Stat. (1899), § 4845. Maryland — Pub. Gen. Laws (1888), Art. 93, § 316. Michigan — Com. Laws (1897), §§ 8906, 8908. Minnesota — Gen. Stat. (1894), § 4352. Montana — Code and Stat. (1895), § 1783. New York — Laws (1896), Ch. 547, § 156; Laws (1897), Ch. 417, § 6. North Carolina — Code (1855), Ch. 119, § 8. North Dakota— Rev. Code (1899), § 3697. Oklahoma — Stat. (1893), § 6216. Pennsylvania — Laws '(1879), § 3, p. 88; B. P. Dig. of Stat. (1895), § 26, p. 2105. South Dakota — Ann. Stat. (1901), § 4545. Utah — Rev. Stat. (1898), § 2780. Virginia — Code (1887), § 2526. West Virginia — Code (1899), Ch. 77, I 15. Old Law Still Applicable. An inter- esting case has recently been decided in England, in which, owing to a technicality, the common law rule was applied. D'Estes's Settlement (1903), 1 Ch. D. 898, 72 L. J. Ch. 305. This decision is criticised by Sir F. Pollock in 19 Law Q. Rev. (July, 1903) 257. Will Made Before Power Given. A devise of land was held to be made in execution of the power though the instrument giving the power was not made till after the will was made. Boyes v. Cook (1880), 14 Ch. D. 53, 49 L. J. Ch. 350, 42 L. T. 556, 28 W. R. 754 — C. A.; Hernando, In re (1884), 27 Ch. D. 284, 53 L. J. Ch. 865, 51 L. T. 117, 33 W. R. 252. Contra: Burkett v. Whittemore (1891), 36 S. Car. 428, 15 S. B. 616, Mclver, C. J., and McGowan, J., dis- senting. 73 Rule Evaded by Aid of Con- text. In the following cases the application of the rule was evaded, by finding in the will slight evidences of an intention to exercise the power ; Funk v. Eggleston (1879), 92 111. 515, 34 Am. Rep. 136 ; Andrews v. Brum- field (1856), 32 Miss. 107; Cooper v. Haines (1889), 70 Md. 282, 17 Atl. 79; White v. Hicks (1865), 33 N. Y. 383. Rule Repudiated by the Courts. In the following cases the courts held that a rule originally adopted in England, and which had to be abro- gated by statute there, ought not to and does not obtain here in the ab- sence of any statute ; but that it is to be presumed that a general devise or bequest was intended to be an exe- cution of the power unless a different Intention appears : Massachusetts — Amory v. Meredith (1863), 7 Allen (Mass.), 397; Sewall v. Wilmer (1882), 132 Mass. 131; Cumston v. Bartlett (1889), 149 Mass. 243, 21 N. E. 373 ; Hassam v. Hazen (1892), 156 Mass. 93, 30 N. E. 469; Talbot v. Field (1899), 173 Mass. 188, 53 N. E. 403. New Hampshire — Rollins v. Haven (1898), 69 N. Hamp. 415, 45 Atl. 141, but in this case finding in the will an intention not to exercise the power ; Emery v. Haven (1893), 67 N. Hamp. 503, 35 Atl. 940, finding no intention and therefore treating the gift as an exercise of the power, Chase, J., say- ing, "A rule of Interpretation that de- §505 WILLS. 340 § 505. What Passes as Part of Laud. The land car- ries with it all growing crops, 74 fixtures, appurtenances, and current rents. 78 4. CONSTBTJCTION OF SPECIFIC DEVISES. § 506. What Included. Specific devises carry all easements and appurtenances without mention. 76 If the testator's only interest in the premises devised is by way of mortgage or other lien for the payment of money, it will be held to be a gift of the debt due if such ap- pears to have been the testator's intention; 77 but if he supposed he was owner, it would seem that the devisee would not be entitled to the money due and secured by the land. 78 A devise of a house or other building in- cludes by implication the land under it, and the adjoin- ing land and buildings used in connection with it. 79 A devise of a house and lot by street and number, 80 by feats more often than it effectuates the intention of the appointer is not to he enforced in this state." Horth Carolma — Johnston v. Knight (1895), 117 N. Car. 122, 23 S. B. 92. 74Dunford v. Jackson (1895, Va.), 22 S. E. 853; Blake v. Gibbs (1825), 5 Russell Ch. 13. 75 A contract by the testator before making the will granting the right to take water from a spring on the de- vised lands for a. stated rent is not a sale of the spring, and the devisee and not the executor is entitled to the rent. Fuller's Estate (1898), 71 Vt. 73, 42 Atl. 981. 76 Bangs v. Parker (1881), 71 Me. 458. 77 So held in : Carter, In re (1900), 1 Ch. D. 801, 69 L. J. Ch. 426, 82 L. T. 526, 48 W. R. 555. A devise of land was held to pass the interest of the testator in the pro- ceeds of the sale of them in Lowman, In re (1895), 2 Ch. D. 348— C. A. 78Schlmpf v. Rhodewald (1901), 62 Neb. 105, 86 N. W. 908, holding that a devise of premises by a tenant for life to her executor did not entitle him to retain the amount of money paid by testatrix to discharge a mortgage on the land, whereby she had an equita- ble lien for the amount Marshall v. Hadley (1892), 50 N. J. Eq. 547, 25 Atl. 325, holding that a devise of "my house and lot in L" did not pass a debt secured by mortgage on a house in L, though the testator had no other house there. Yet when a testatrix entitled to a fee in land subject to charge and a life estate, and entitled to the rever- sion in two other charges devised all her interest in the land, the devisee was held to take reversionary charges. Kilkelly v. Powell (1897), 1 Ir. 457. 79 Whitney v. OIney (1823), 3 Mason, 281, Fed. Cas. No. 17595 ; In- habitants V. Bruch (1883), 37 N. J. Eq. 482; Eliot v. Carter (1832), 12 Pick. (29 Mass.) 436; Rogers v. Smith (1846), 4 Pa. St. 93, 101 ; Doe v. Col- lins (1788), 2 Term. 498; Ricketts v. Turquand (1848), 1 H. L. Cas. 472, holding that "all my estate in Shrop- shire called Ashford Hall" included not the mansion house only but all the lands in Shropshire owned by the tes- tator at the time of executing the will. Beers v. Narramore (1891), 61 Conn. 13, 22 Atl. 1061, holding that "the old mill quarry property" included not the quarry only but the whole tract of four acres. so Describing by Street and Number. Kllburn v. Dodd (1894, N. J. Ch.) 30 341 ASCERTAINING WHAT PROPERTY IS INCLUDED. § 506 naming the occupant, 81 by stating its use, as "my home- stead," 82 or "my farm," 83 will include the outbuildings Atl. 868; Laning v. Sisters of St. F. (1882), 35 N. J. Bq. 392, 402, holding a devise of "No. 160 Rose St." to In- clude the shop in the rear and an ad- joining strip. Updegraff v. McCormick (1901), 199 Pa. St. 590, 49 Atl. 290, holding "the lot of land and buildings situated at the N. B. corner" of two streets named included only lot 9 and not the adjoining lots 10 and 11 owned by the testator. Krechter v. Grofe (1902), 166 Mo. 385, 66 S. W. 358, holding "that certain brick building known as number 2803 Magnolia Aye., with the lot of land thereto belonging" did not include more than the original lot by ten feet by reason of Improve- ments in the rear made for the con- venience of the tenants and to divide their tenements. Groves v. Culph (1892), 132 Ind. 186, 31 N. E. 569, holding that a devise in remainder of "the same lot number fifteen" in- cluded the part of lot sixteen included in the particular preceding devise. Hibon V. Hibon (1863), 32 L. J. Ch. 374, 9 Jur. n. s. 511, 8 L. T. 195, 11 W. E. 455, holding that the garden lot on the opposite side of the street passed as part of the "messuages and premises situate at No. 4." Webb v. Carney (1895, N. J. Ch.), 32 Atl. 705, holding that the "house and lot on the north side of Rose St." included the whole of the double house and the two lots on which it stood, though the parts had been rented to different tenants. si Devises by Naming Occupant. Dudley v. Milton (1900), 176 Mass. 167, 57 N. B. 355, holding "the house in which she now lives" to include the lot and barn used with the same but on the opposite side of the street. My- ers v. Norman (1898, Ky.), 46 S. W. 214, holding "the house and lot and appurtenances thereto belonging where I now reside" to include three adjoin- ing vacant lots. Bridge v. Bridge (1888), 146 Mass. 373, 15 N. E. 889, finding "the house in which we now live" not necessarily to Include the stable in the rear. Claverly v. Claver- ly (1878), 124 Mass. 314, holding "dwelling house and stable which my brother now occupies and the lot of land on which said house and stable stand" not to Include an adjoining market occupied by a tenant. Inhabi- tants v. Bruch (1883), 37 N. J. Eq. 482, holding the house and lot on which I now reside" to include only the land within the garden fence. Mitchell v. Walker (1856), 17 B. Mon. (56 Ky.) 61, holding "all my land and mansion house" to include land sepa- rated from the mansion house. 82 "My Homestead." Melchor v. Chase (1870), 105 Mass. 125, holding "my homestead, including the out- buildings, garden, tillage, and pasture lands," to include two separated par- cels occupied by tenants, but cropped and pastured as part of the farm. Kennedy v. Kennedy (1883), 105 111. 350, holding that a devise of the home- stead to the testator's wife in lieu of dower was not confined to the home- stead the law would give her against his will, but included the whole farm of 630 acres, excluding detached par- cels. Smith v. Dennis (1896), 163 111. 631, 45 N. B. 267, holding that a dwelling and business place on an ad- joining sublot in the same block and leased out by the testator were not in- cluded in the homestead devised ; to the same effect on similar facts : Backus v. Chapman (1873), 111 Mass. 386. Lord v. Simonson (1899, N. J. Ch.) 42 Atl. 741, holding "the home- stead and lands and premises belong- ing thereto" to include a wood lot separated from the rest by land of another. McKough's Est. v. McKough (1895), 69 Vt. 34, 37 Atl. 275, hold- ing that "my home place where I now live" did not include several tenement houses not separated by any distinct boundaries from the ground on which the testator's residence stood; but see Blackmer's Estate (1893), 66 Vt. 46, 28 Atl. 419, holding a small tenement house on the back end of the lot to pass as part of the homestead. Hay- den v. Matthews (1896), 4 App. Div. 838, 38 N. T. S. 905, affirmed in 158 N. Y. 735, holding "my mansion house in C with the grounds attached, about thirty acres," not to include other ad- joining lands. 83 "My Farm." Gafney v. Kenison (1887), 64 N. Ham. 354, 10 Atl. 706, holding that a separated parcel was § 507 WILLS. 342 and adjacent lots of land used in connection with the premises; and in the case of gifts of the homestead, and more readily in cases of gifts of the farm, will include separated tracts used in connection with the place de- vised. 84 But in none of these cases will land pass which is used for a different purpose, though joining the prem- ises devised. 85 5. CONFLICTING DESCRIPTIONS. § 507. Conflicting Gifts. A gift in general terms will not limit a gift in another clause in distinct or specific terms, 86 though the general gift cannot otherwise operate at all. 87 But if the same property be given by specific description to different persons by the same will, the court would generally hold them to take as joint ten- ants, tenants in common, or in succession, rather than hold the provisions inconsistent. 88 § 508. Effect of Conflicting Descriptions of Same Gift. The property intended to be given is often described in different ways which do not agree; for example, if the devise be "my Cropwell farm, now in the posses- sion of my son Thomas, conveyed to me by S. Griswold, and containing eighty-five acres, more or less," here part of the farm devised. Aldrich v. farms "now occupied" by the devisees Gaskill (1852), 10 Cush. (64 Mass.) one devisee did not become entitled to 155, holding that land passed by a a part of the other farm by reason of devise of a farm, though separated a temporary use of that part. from the rest by selling lots between 84 See the cases above noted. and renting the outlying lot. Allen v. 86 See the cases above noted. Eichards (1827), 5 Pick. (22 Mass.) 8e Willis's Will (1903), — B. I. — . 512, holding that the proof of use was 55 Atl. 889. insufficient to include a wood lot half A gift of "uplands' must be so con- b mile away under a devise of "the strued as not to affect other gifts by whole of the farm and buildings where specific description. Vandiver v. Van- I now reside." Bradshaw v. Ellis diver (1896), 115 Ala. 328, 22 So. (1838), 2 Dev. & Bat. (17 N. Car.) 154; Holdfast d. Hitchcock v. Pardoe 20, holding that "my plantation" in- (1775), 2 Wm. Bl. 975. eluded a separated parcel ; followed A gift of the Wooley farm to one is in Harvey v. Harvey (1875), 72 N. not restricted by a gift to another Car. 570; Black v. Hill (1877), 32 of the farm in his possession, he hav- Ohio St. 313, holding the evidence ing use of part of the Wooley farm sufficient to support the finding that a and the whole of another. Chace v. disconnected wood lot passed as part Lamphere (1896), 148 N. Y. 206, 42 of "my two farms." Chace v. Lam- N. E. 580. phere (1896), 148 N. Y. 206, 42 N. B. 87 1 Bigelow's Jarman *448. 580, holding that by two devises of two 88 See ante § 425. 343 ASCEBTAINING WHAT PBOPEBTY IS INCLUDED. §508 are four specifications of which it may be that no two exactly correspond, although the testator had property answering to each of them. Which description shall control? In giving these several specifications the tes- tator may have had either of two purposes in view: 1, they may have been given to limit each other; or, 2, they may have been given by way of enumeration or further identification, under the belief that they amounted to the same thing. In the first place, it must not be rashly assumed that the testator was mistaken, but effect must be given to his whole statement unless there is some reason for doing otherwise. Ordinarily, therefore, if some lands be found answering all the specifications and some answering a part only, the expressions will be un- derstood as restrictive, and only those will pass which answer all the specifications. 89 Plain words cannot be rejected even if the result is partial intestacy. 90 89 Cases Holding Words Restrictive. Bourke v. Boone (1902), 94 Md. 472, 478, 51 Atl. 39P, holding that "all the land belonging to me, being my part of what I obtained from my father and adjoining lands," did not include lands afterward taken under her brother's will. Webb v. Archibald (1895), 128 Mo. 299, 34 S. W. 54, "all my real estate being," &c. Bedell v. Fradenburgh (1896), 65 Minn. 361, 68 N. W. 41; Peebles v. Graham (1901), 128 N. Car. 218, 39 S. E. 23, holding that a devise of "all the lands in- cluded under the name of Arnold — all east of the R. & R. road" did not in- clude the Arnold lands west of the road. Griscom v. Evens (1878), 40 N. J. L. (11 Vroom) 402, 29 Am. Rep. 251, affirmed in 42 N. J. L. 579, hold- ing that "all that my farm and planta- tion, near Cropwell, conveyed to me by the heirs of my deceased wife, and where my son, Thomas, now resides, containing about eighty-five acres, more or less," does not Include fourteen acres of the Cropwell farm purchased from another person, and cultivated but not resided on by Thomas (several decisions reviewed). Kanouse v. Slockbower (1891), 48 N. J. Eq. 42, 21 Atl. 197, holding that "the remainder of my homestead farm as hereinafter described, that is to say, beginning at a stake," &c, giving courses and dis- tances, included only so much of the remainder of the homestead farm as was lying within the boundaries so specified. Slagel v. Payne (1899, Tex. Civ. App.), 50 S. W. 500, holding that a devise of "my own military claim for 1280 acres located on the Leon" included only the 1015 acres of the claim, and not the remaining 265 acres not located on the Leon. See also Christy v. Badger (1887), 72 Iowa 581. 34 N. W. 427; Westv. Lawday (1865), 11 H. L. Cas. 375, holding that "be- ing possessed of a lease for life of certain lands in Kerry, which said lands are denominated B, C, and F," did not include the estate called G held under the same lease and also in Kerry. Doe d. Ashforth v. Bower (1832), 3 Barn. & Ad. (E. C. L.) 453, holding that "all my messuages situ- ated at, in, or near, a street called Snig Hill, in Sheffield, which I lately purchased of D," included four houses near Snig Hill, but did not include two others a little farther away, though they were also lately purchased of D. Webber v. Stanley (1864), 16 C. B. (Ill E. C. L.) 698, holding that "my mansion house at T in the county of H, and all my manors, farms, lands, go See note on next page. 509 WILLS. 344 §509. Same— Qualification Disregarded Because of Name. But there are many cases in which the restricting specifications have been rejected as attempts at enumera- tion or better identification, and without any intention to restrict. "When the property intended to be con- veyed is described in such distinct and explicit terms that it cannot, without inconsistency, admit of the quali- fication resulting from the partial description, and that partial description seems, upon its face, rather designed as an additional description of the same property than as intended for a qualification, there such mistaken de- scription will be rejected for its inconsistency with other parts of the description. The earliest cases in which this rejection is found are those in which a particular property is given by its name; there it is held that the certainty of the property being apparent, any further erroneous description will not affect the conveyance. Veritas nominis tollit errorem demonstrationis. " 91 to, in the county of H," did not in- clude any part of the T estate out of H county. Those interested will find the old cases of this description carefully col- lected and reviewed separately by Judge Bell in Drew v. Drew (1854), 28 N. Ham. (8 Foster) 489. 90 Oldham v. York (1898), 99 Tenn. 68, 41 S. W. 333 ; Kanouse v. Slock- bower (1891), 48 N. J. Eq. 42, 21 Atl. 197; Jones, v. Robinson (1878), 78 N. Car. 396, 399. 91 Quoted from Drew v. Drew (1854), 28 N. Ham. (8 Foster), 489, 501, in which Judge Bell reviews the cases from the time of the year books, and holds that "all my homestead farm in Dover, being the same farm whereon I now live, and the same that was devised to me by my honored father," passed the whole farm though part of it was not devised to him by his father. Oases Holding Words Wot Restrict- ive. In Chace v. Lamphere (1896), 148 N. Y. 207, 42 N. E. 580, the devise was "all my farm In A, containing about 174 acres, called the Wooley farm ;" and in another clause he de- vised to his sister "the farm of land now, occupied by J." Part of the Wooley farm was occupied by J ; but it was held that the whole farm passed by the other devise, the num- ber of acres stated being the whole farm. t In Thomson v. Thomson (1893), 115 Mo. 56, 21 S. W. 1085, the devise was "the tract of land on which I now reside, described as follows : beginning in the center," &c, giving courses and distances, so as to exclude forty acres of the farm ; but it was held that the whole tract passed. A very old case of this kind is in the yearbooks 2 Ed. IV. 27 ; 2 Bro. Abr. 21, b, Grant 92, as follows : "A man grants all his lands in D, which he had of the gift and .eoffment of J. S., then nothing shal pass but what he had of the gift of J. S. But if he grant all his land in D, called N, which was of J. S., then his land called N, shall pass, though it never belonged to J. S., by reason of the specific name (called N), otherwise of general words, as in the first case." In Chamberlaine v. Turner (1629), Cro. Car. 129, the devise was of the tenement wherein W. N. dwelleth, called the White Swan, in O. At the time of making the will, 345 ASCERTAINING WHAT PROPERTY IS INCLUDED. §510 §510. Same— Other Grounds for not Restricting. But the principle is by no means confined to cases in which the property conveyed or devised is described by name, though that might be inferred from some of the earlier cases. It extends to every case in which an intention to pass the whole property can be found. 92 A large number of the cases where the additional descrip- tion is held not to operate as a restriction, turn on the force of the word "all" as part of the preceding de- scription. 1 When there is no other clause under which W. N. occupied the alley and three upper rooms ; and others occupied the rest of the house and appurtenances. But the court held that the whole house passed, because the White Swan Imported the whole house and could not be confined to the three rooms. In Goodtitle d. Radford v. Southern (1813), 1 Maule & Sel. 299, the devise was "all that my farm called Trogues farm, now In the occupation of A. Clay," and the court held that the whole farm passed, though it was not all in the occupation of Clay, because the thing was sufficiently ascertained by the name, and without the whole "all" would not be satisfied. In Down v. Down (1817), 7 Taun- ton (2 E. C. L.) 343 1 Moore 80, the devise was "a farm called Coltsfood farm now on lease to M. F." The close called W. S., being part of the Colts- food farm was excepted out of the lease to M. F. ; but the court held that the whole farm passed. In Doe d. Beach v. Jersey (1818), 1 Barn & Aid. 550, the testatrix devised all that her B. F. estate (adding after describing another estate), "which, as well as my B. F. estate is in the coun- ty of G." Though part of the B. F. estate was not in the county of G, the court held that the whole estate passed. In Goodtitle d. Paul v. Paul (1760), 2 Burr. 1089, 1 Wm. Bl. 255, the de- vise was of "my farm at Bovington, In the tenure of J. S." It was held that the whole farm passed, though six acres of woods and some hedgerows were not held of J. S. 92 Peebles v. Graham (1901), 128 N. Car. 222, 39 S. E, 25. See also the numerous cases re- viewed by Bell, J., In Drew v. Drew (1854), 28 N. Ham. 489, 504 et seq., especially the following : Goodtitle v. Paul (1760), 2 Burr. 1089; Doe v. Cranstoun (1840), 7 Mees. & W. 1, 4 Jur. 683; Marshall v. Hopkins (1812), 15 East 309 ; Strutt v. Finck (1825), 2 S. & S. 229; Oxenforth v. Cawkwell (1826), 2 S. & S. 558. In Martin v. Smith (1878), 124 Mass. Ill, the devise was : "all the real estate I may die possessed of, which property is situate on the north side of North St. ;" and the court, held that land on the south side of the street also passed, saying, "the general rule is undisputed, that a gift by words of general description is not to be limited by a subsequent attempt at particular description, unless such ap- pears to be the intention of the testa- tor." In Williams v. Brice (1902), 201 Pa. St. 595, 51 Atl. 376, the devise was "all the residue of my real estate con- sisting of the sixth part of the follow- ing properties, inherited from my father," &e. ; and it was held that de- vise passed what he then owned, the sixth, and a thirtieth interest in the same property afterward acquired. In Durboraw v. Durboraw (1903), — Kan. — , 72 Pac. 566, the devise was of "all my real and personal prop- erty of every description and wher- ever situated. The real property above referred to Is more particularly de- scribed as follows," giving description. Held that after-acquired lands passed. See also the cases reviewed in Mel- vln v. Proprietors (1842), 5 Mete. (46 Mass.) 15, 38 Am. Dec. 384, and note to last; Saeger v. Bode (1899), 181 HI. 514, 55 N. E. 129. i See the cases reviewed by Bell, J., § 511 WILLS. 346 the property could pass, so that restriction would re- sult in partial intestacy, the presumption that the tes- tator intended to dispose of his whole estate is given great weight in reaching the conclusion that the addi- tional specifications were not given to restrict the more general description, but by way of attempt at enumera- tion, 93 or for better identification, under the belief that they all amounted to the same thing, and not for the purpose of restriction. This conclusion would usually be reached if the general description was certain, and accepting the other specification as restrictive would render it fatally uncertain. 94 Statements of quantity also are seldom given much weight, 95 because the amount is not often exactly known, and is easily mistaken. But if there is doubt under the other specifications state- ments of quantity may become important. 96 §511. Relative Strength of Descriptions. It is a general rule that if the several descriptions do not cor- respond, and do appear not to have been intended to restrict each other, the one is to be accepted which is the least liable to have been mistaken, 97 a rule which In Drew v. Drew (1854), 28 N. Ham. farmed more than eight fields and we (8 Foster), 489, 512. See also: Port- confine the devise to eight, what fields land T. Co. v. Beatie (1898), 32 Ore. shall they be? Neither court nor jury 305, 311, 52 Pac. 89. could determine." See also to the 93 Cundiff v. Seaton (1899, Ky.), 49 same effect Jones v. Robinson (1878), S. W. 179; Peebles v. Graham (1901), 78 N. Car. 396. 128 N. Car. 222, 39 S. E. 25 ; Portland 05 See the cases just above cited ; T. Co. v. Beatie (1898), 32 Ore. 305, also: Portland T. Co. v. Beatie 52 Pac. 89, holding that "all that part (1898), 32 Ore. 305, 52 Pac. 89; Cun- of the Oregon City land claim not laid diff v. Seaton (1899, Ky.), 49 S. W. off into lots and blocks, and lying in 179. the northeasternly portion of said 86 Peebles v. Graham (1901), 128 claim, and containing 85 acres, more N. Car. 222, 39 S. E. 25 ; Chace v. or less," passed all the unplatted land, Lamphere (1896), 148 N. Y. 206, 42 being 159 acres, and not merely 85 N. E. 580; Churchill v. Churchill acres out of the northeasterly portion (1902, Ky.), 67 S. W. 265; Moran thereof, though there was a residuary v. Lezotte (1884), 54 Mich. 83, 19 N. clause. W. 757. 94- Thus in Coleman v. Eberly 97 Moran v. Lezotte, above ; note in (1874), 76 Pa. St. 197, the devise was 30 Am. Dec. 734; Melvin v. Proprie- "that part of the' McKinstry farm at tors (1842), 5 Mete. (46 Mass.) 15, 38 present occupied and farmed by Brown, Am. Dec. 384; Drew v. Drew (1854), containing eight fields ;" and it was 28 N. H. 489, 497 ; Wales v. Temple- held that the whole farm passed ton (1890), 83 Mich. 177, 47 N. W. though containing nine fields. The 238. court said : "If he occupied and 347 ASCERTAINING WHAT PROPERTY 18 INCLUDED. § 512 might not require the same method of description to be accepted in every case, as circumstances may so cor- roborate a weaker description as to overthrow one which would ordinarily be the stronger. But ordinarily the statement of the name of the premises will prevail over any other description, 98 unless, perhaps, declarations of intention to pass premises conveyed by some clause or instrument referred to would be stronger, and they would at least be next in rank. Eeferences to known monuments, boundaries and landmarks would prevail over statements of courses and distances," and state- ments of amount have least weight of all. 1 § 512. Two Descriptions— Whether Several or Double. Cases have occurred in which the question was whether the testator intended to give a number of specifications concerning the same parcel, or by each specification to describe a different parcel. Precedents furnish little aid in such cases, so much depends on the peculiar facts. 2 98 Drew v. Drew (1854), 28 N. Ham. J Law (1 Vroom.) 465, the devise (8 Foster), 489, 501; Thomson v. was, "one acre of land joining the Thomson (1892), 115 Mo. 56, 21 S. road leading from M to B, on the W. 1085. west, and my house lot on the east ;" 99 See above cases and St. Margaret and the court held that only the acre M. H. v. Penna. Co. (1893), 158 Pa. lot was intended to pass, the house St. 441. lot being named only to describe the l See authorities above referred to, acre lot - and Finelite v. Sinnott (1890), 125 In Piper's Appeal (1873), 73 Pa. St. N. Y. 683, 25 N. H. 1089. 112, the devise was, "all that certain In Groves v. Culph (1892), 132 grist mill in Springfield, ■ Montgomery Ind. 186, 31 N. E. 569, the devise was, County, and all the real estate in said "the same lot number fifteen so de- county;" and the court held that "all vised to my said wife for her life the real estate in said county" was spe- time, to my daughter Eliza and to cified only to pass the mill lot, not to her heirs," and it was held that the include another lot some six miles daughter took not merely lot fifteen away. This seems like an erroneous but all that was given to her mother decision, for life by the devise referred to. in Ogsbury v. Ogsbury (1889), 115 2Higgins v. Dwen (1881), 100 N. Y. 290, 296, 22 N. B. 219, the de- 111. 554, the devise was, "all moneys vise was, "all that piece of land that and properties, real and personal, of he has a quitclaim deed of me and every description, in the city of Chi- that he now occupies;" and it was cago, County of Cook, and in Ogle claimed that the last clause was added County, State of Illinois ;" and it was to pass a piece of land occupied by the held that the real estate in Cook Coun- devisee but not covered by the qutt- ty, though not in the city of Chicago, claim deed. The contention was held passed. untenable. In Nevius v. Martin (1864), 30 N. § 513 WILLS. 348 6. FALSE DESCRIPTIONS. §513. General Rule. When several specifications are given to describe the same parcel, it frequently hap- pens, on comparing them with the testator's property, that none is found answering all the specifications. The law is well settled that in such cases so much of the prop- erty will pass as can be identified by the aid of both the false and the correct specifications given, when read in the light of the testator's situation. "Thus," says Wigram, "if a testator devise his black horse, having only a white one, or devise his freehold houses, having only leasehold houses, the white horse in the one case and the leasehold houses in the other would clearly pass." 3 The cases of this kind are very numerous, and the courts have not all gone to the same length, nor the same court, perhaps, in different cases, in upholding the gift in spite of the false description. § 514. Application of Rule. Several cases upholding the devise are cited below. 4 In some cases it has been held that a declaration of intention to dispose of what the testator owned would cure a misdescription; thus, "touching the worldly estate, wherewith it hath pleased God to bless me, I dispose of the same in the follow- ing manner;" and one of the clauses devised lot 6 in block 403, which the testator did not own, followed by 3 Wigram Extrinsic Evidence 53 ; between must mean through. Briant v. quoted with approval In Patch v. Garrison (1899), 150 Mo. 655, 52 S. White (1886), 117 U. S. 210, 218. W. 361. See also note 40 Am. Rep. 292. Where there is a direction to di- 4 Blague, v. Gold (1638), Cro. Car. vide land between certain persons and 473, a leading case; Whitcomb v. Rod- it is apparent that an equal division man (1895), 156 111. 116, 40 N. E. is intended, the directions as to di- 553, 47 Am. St. Rep. 181, 28 L. R. A. vision which would make it unequal 149; Scarlett v. Montell (1902), 95 may be disregarded. Porter v. Gaines Md. 148, 51 Atl. 1051; Peebles v. Gra- (1899), 151 Mo. 560, 52 S. W. 376. ham (1901), 128 N. Car. 222, 39 S. E. If the method of division would not 25; Bradley's Will (1901), 73 Vt. 253, dispose of the whole tract, but it is 50 Atl. 1072. apparent that the whole was Intended When lands were described as lying to pass, the shares may be increased east of the line running between sec- In proportion so as to take all. Ben- tions 8 and 17, the court took notice nett v. Simon (1899), 152 Ind. 490, of the fact that in all towns section 53 N. B. 649. 8 lies north of section 13, so that 349 ASCERTAINING WHAT PROPERTY IS INCLUDED. § 515 a residuary clause giving all the rest of his real estate to another; and the erroneous description was held suffi- cient to pass lot 3 in block 406, which the testator did own. 5 In many of the cases the courts have refused to go as far as this. 6 But there are a number of cases in which the description "all the rest of my land, being," etc., 7 "all my land," etc. "my land, being," etc., 8 "I am the owner of the following," etc., 9 and even "all the land I now own in the N. W. % of Sec. 20, " 10 have been held sufficient though the particular description added was false. 7. UNCERTAIN AND INSUFFICIENT DESCRIPTIONS. § 515. What is Sufficient. The popular name, or any- thing that will identify, is sufficient. 11 § 516. Descriptions Fatally Defective. But nothing can be added to the words to make the description good. 5 Patch v. White (1885), 117 U. S. 210. Like decisions on similar facts : Moreland v. Brady (1880), 8 Ore. 303, 34 Am. Rep. 581 ; Stewart v. Stewart (1896), 96 Iowa 620, 65 N. W. 976. In Hawkins v. Young (1894), 52 N. J. Bq. 508, 28 Atl. 511, "my house and lot in Newark" was held sufficient to pass her house and lot in B, a su- urb of Newark, the only house she had. e See Sherwood v. Sherwood (1878), 45 Wis. 357, 30 Am. Rep. 757. 7 Peterson v. Jackson (1902), 196 111. 40, 52, 63 N. E. 643; Priest v. Lackey (1894), 140 Ind. 399, 39 N. E. 54. 8 Judy v. Gilbert (1881), 77 Ind. 96, 40 Am. Rep. 289; Rook v. Wilson (1895), 142 Ind. 24, 41 N. E. 311, 51 Am. St. Rep. 163, "my real estate, to-wit." 9 Eckford v. Eckford (1894), 91 Iowa 54, 58 N. W. 1093, 26 L. R. A. 370. wZirkle v. Leonard (1900), 61 Kan. 636, 60 Pac. 318, his land being in another quarter of the section. "All that need be done to reform that clause is to erase 'southwest three-fourths of the south half of the' and we have a perfect description of what the testator intended to devise." Vestal v. Garrett (1902), 197 111. 398, 406, 64 N. E. 345. Contra: The very reverse was held on facts almost identical In : Funk v. Davis (1885), 103 Ind. 281, 2 N. E. 739; McGovern v. McGovern (1899), 75 Minn. 314, 77 N. W. 970. li Furbee v. Furbee (1901), 49 W. Va. 191, 38 S. E. 511. In Flinn v. Holman (1903), — Iowa — , 94 N. W. 447, a devise of "S. E. S. W. in section 18 range 22" was held sufficient to pass the land owned by the testator though it is common knowl- edge that there are a great many towns in range twenty-two, each containing a section eighteen. "A devise of one acre out of a larger tract, and to include a burial lot and additions thereto, was held to pass the burial lot though fatally uncertain as to the rest. Edens v. Miller (1896), 147 Ind. 208, 46 N. B. 526. In Byrn v. Kleas (1897), 15 Tex. Civ. App. 203, 39 S. W. 980, a devise of a certain number of acres out of a larger tract without specifying what part, was held to give a proportionate undivided interest, and not to be void for uncertainty. § 517 WILLS. 350 If the description is wholly false, or there is not enough of truth in it to identify the property with the aid of such light as the testator's situation throws on the will, the devise inevitably fails for uncertainty. 12 8. PERSONAL PBOPEETY DESCEIBED BY LOCATION. §517. Securities Found in the Place. The danger of describing personal property by location has often been observed. It may comprehend much today and nothing tomorrow; and the effect may be changed by honest or fraudulent removals without the testator's knowledge or consent. A gift of the contents of a house will seldom if ever pass choses in action evidenced by notes, bonds, or other securities found there; 13 and all the more clearly land would not pass by reason of a deed of it being found there. 14 But coins and current paper money have generally been held to pass. 16 And a gift of the contents of some place where such valuables are usually put for safe keeping, such as the contents of a safety deposit box, would include not merely the pen, pencils, and jewelry there found, but all choses in 12 Williams v. Williams (1901), 189 re (1891), 124 N. T. 388, 26 N. B. 954; 111. 500, 59 N. E. 966; Bingel v. Volz Penton v. Fenton (1901), 35 N. T. (1892), 142 111. 214, 31 N. E. 13, 34 Misc. 479, 71 N. T. S. 1083.; Peaslee Am. St. Rep. 64, 16 L. R. A. 321; v. Fletcher (1888), 60 Vt. 188, 14 Atl. Sturgis v. Work (1889), 122 Ind. 134; 1, 6 Am. St. Rep. 103, Mechem 102; 22 N. E. 996, 17 Am. St. Rep. 349; Stuart v. Bute (1804), 11 Ves. 657. McGovern v. McGovern (1899), 75 But see Mahony v. Donovan (1863), Minn. 314, 77 N. W. 970; Kurtz v. 14 Ir. Ch. 388 — C. A. Hibner (1870), 55 111. 514, 8 Am. Rep. i4Parrott v. Avery (1893), 159 665, 10 Am. L. Reg. (n. s.) 93; Fitz- Mass. 594, 35 N. E. 94, 22 L. R. A. Patrick v. Fitzpatrick (1873), 36 Iowa 153, 38 Am. St. Rep. 465. 674, 14 Am. Rep. 538. 16 Lock v. Noyes (1838), 9 N. Hamp. When lots were devised by number 430; Perea v. Barela (1890), 5 N. which had never been platted, the de- Mex. 458, 23 Pac. 766, house, furnl- scription was held sufficient, the num- ture, and contents, including money bers referring to order in which the hidden in furniture ; Mann v. Mann lots were purchased. McNally v. Mc- (1814), 1 Johns. Ch. 231, 238, 7 Am. Nally (1901), 23 R. I. 180, 49 Atl. 699. Dec. 416, 421, dictum by Kent; Stuart "The remainder not otherwise dis- v. Bute (1804), 11 Ves. 657; Brooke v. posed of" is not void for uncertainty. Turner (1836), 7 Simons (10 Eng. Ch.) Mace v. Mace (1901), 95 Me. 283, 49 671. Atl. 1038. But see Reynolds, In re (1891), 124 13 Webster v. Wiers (1884), 51 N. T. 388, 26 N. E. 954; Ludwlg v. Conn. 569; Andrews v. Schoppe Bungart (1900), 33 N. T. Misc. 177, 67 (1892), 84 Me. 170, 24 Atl. 805; Ben- N. T. ». 177; Fenton v. Fenton (1901), ton v. Benton (1884), 63 N. Hamp. 35 N. T. Misc. 479, 71 N. T. S. 1083. 289, 56 Am. Rep. 512; Reynolds, In 351 ASCEETAINING WHAT PROPERTY IS INCLUDED. § 518 action evidenced by securities found there, though not transferable without indorsement. 16 But even then se- curities kept elsewhere would not pass by reason of the key to their place of deposit being found in the place described, 17 nor would land pass by reason of a deed of it being there. 18 §518. Arrivals and Removals. Such descriptions have often been referred to the time of making the will, so as to pass property in the place when the will was drawn though not there when he died. 19 In other cases property has been held to pass by the local description, though removed from the place for some special purpose at the time of the testator's death. 20 But property or- 16 Richmond v. Yanhook (1845), 3 Ired. Eq. (38 N. Car.) 581, "my desk and all that Is in it," passing money, notes, and honds, though put there after the will was made ; Lock v. Noyes (1838), 9 N. Hamp. 430, "trunk and all its contents," passing money and an indorsed note, there from making of will; Prater, In re (1888), 37 Ch. D. 481, 57 L. J. Ch. 342, 58 L. T. 784, 36 W. R. 561 — A. C, "half my property at R's Bank," certificates of French shares transferable by delivery ; Rob- son, In re (1891), 2 Ch. D. 559, 60 L. J. Ch. 851, 65 L. T. 173, "my old ma- hogany desk with the contents there- of," a check not indorsed, payable to the order of the testator ; Paget v. Bridge water (1724), 3 Brown P. C. 36, 2 Ex. Cas. Ab. 327, ca. 40, "my strong box, and whatever is in it," several notes in drawers fixed in the frame containing the strong box. it Robson, In re, above. i8Parrott v. Avery (1893), 159 Mass. 594, 35 N. E. 94, 22 L. R. A. 153, 38 Am. St Rep. 465. In Edwards v. Rainier (1867), 17 Ohio St. 597, a devise of a farm and all the crops "growing and matured" on the land was held not to include corn in cribs. In Johnson v. Johnson (1896), 48 S. Car. 408, 26 S. E. 722, "all the contents of the barns" was held not to Include cotton in the car- riage sheds — not barns. i9Norris v. Norris (1846), 2 C. C. C. 719, 15 L. J. Ch. 420, 10 Jur. 629, "all my interests in my house at L, the furniture, books, &c," passing the furniture, books, etc., though he had removed to another house before his death ; Rawlinson v. Rawlinson (1876), 34 L. T. 848, 24 W. R. 946, passing furniture afterward stored in another place ; Chapman v. Hart (1749), 1 Ves. Sr. 271, holding a be- quest of goods aboard a ship to pass the goods though they had been re- moved. Under similar facts the gift was held adeemed in the following cases: Heseltine v. Heseltine (1818), 3 Madd. 276; Colleton v. Garth (1833), 6 Simons Ch. 19, 2 L. J. Ch. 75; Spencer v. Spencer (1856), 21 Beav. 548; Green v. Symonds (1730), 1 Brown Ch. 129 n. 20Woodside's Estate (1898), 188 Pa. St. 45, 41 Atl. 475, "cows, tools, furni- ture, &c, that may be on the farm," passing cows being fatted for market on the farm across the creek : Johnson, In re (1884), 26 Ch. D. 538, 53 L. J. Ch. 645; 52 L. T. 44, 32 W. R. 634, passing a box of jewelry as contents of a house though temporarily at a banker's for safe keeping ; Brooke v. Warwick (1848), 2 DeGex & Smale, 425, 12 Jur. 912, passing books away to be bound, furniture away to be re- paired, and pictures away to be cleaned, as "articles of virtue and effects, In, upon, or about my mansion at G ;" to the same effect : Bruce v. Howe (1870), 19 W. R. 116; Land v. Devaynes (1794), 4 Brown Ch. 537. § 519 WILLS. 352 dered for the place by the testator and even in transit thither at his death does not pass. 21 § 519. Debtors Living in Flaee. It has been held in a number of cases that debts due the testator from residents of a place, or secured by mortgage on prop- erty there, pass by a gift of all property there. 22 9. RESIDUARY CLAUSES.*" §520. What is a Residuary Clause. No particular mode of expression is necessary to constitute a residuary clause. It is sufficient if an intention thereby to pass the residue appears. 24 It need not be the last disposi- tion, and may be the first; indeed, its position is of no importance except as it bears on the intention. 25 If there be no other general residuary clause, words in any clause sufficiently broad to pass a general residue are not usually held to be restricted by association with other words of narrower import, or by added attempts at enumeration. 26 § 521. General Residuary Clauses. Words in general 21 Lane v. Sewell (1874), 43 L. J. in the keeping of a bank the bead Ch. 378, not including a cargo of office of which was in London. wheat consigned to the testator, under 28 See note 9 L. R. A. 200, 4 Pro. a devise of a mill and all the corn and R. A. 491-495. other articles that may be therein; 24 Morton v. Woodbury (1897), 153 Beaufort v. Dundonald (1716), 2 Vern. N. X. 243, 251, 47 N. B. 283. 739, goods ordered for the house, agree- 26 Morton v. Woodbury (1897), 153 ment with the carrier for carriage be- N. T. 243, 252, 47 N. B. 283. ing made. 26 Given v. Hilton (1877), 95 U. S. 22 Eitch v. Talbot (1901), 74 Conn. 591; Taubenhan v. Dunz (1888), 125 137, 50 Atl. 42, "all my real and per- 111. 524, 17 N. B. 456; Miner, Matter sonal property situated in G," includ- of (1895), 146 N. Y. 121, 40 N. B. ing land and a debt due from a resi- 788; Reynolds, Matter of (1891), 124 dent secured by mortgage on property N. T. 388, 26 N. B. 954, and many there; Scorey v. Harrison (1852), 16 cases therein reviewed; Le Rougetel Jur. 1130, 1 W. R. 99, "property I leave v. Mann (1885), 63 N. Hamp. 472, 3 in the colony," passing a note of a rest- Atl. 746; Woodside's Bstate (1898), dent of the colony, though payable in 188 Pa. St. 45, 41 Atl. 475 ; Fry v. London; Guthrie v. Walrond (1883), Shipley (1895), 94 Tenn. 252, 29 S. 22 Ch. D. 578, 52 L. J. Ch. 165, 47 L. W. 6. T. 614, 31 W. R. 285, "all my estate Contra: Williams v. McKeand and effects in M," passing debt of (1899), 119 Mich. 507, 78 N. W. 553, resident of M for price of land there; holding after acquired property and Rhodes v. Rhodes (1874), 22 W. R. lapsed legacies excluded by enumera- 835, "all and every other my estate tion. See also cases cited as to after and effects in London," passing shares acquired land being excluded by added particular description, ante § 508. 353 ASCEKTAIN1NG WHAT PROPEBTY IS INCLUDED. § 521 residuary clauses are given the widest possible scope, for two reasons: 1, it is presumed that the testator intended by the will to dispose of his whole estate, leaving noth- ing intestate; 27 and, 2, such clauses are usually added to provide for oversights, possible contingencies, and forgotten items. 28 Thus, a gift of "the rest of my money" has been held sufficient to pass the whole residue, including land. 29 Whatever is not otherwise well dis- posed of by the will, will pass under the residuary clause; including after-acquired property, 30 property over which the testator had a power of appointment, 31 reversions left by other clauses giving less than the testator's in- terest in any property, 32 any other future or contingent interest, 33 all property given by devises or legacies re- voked by any codicil, 34 or which have lapsed, 35 or been renounced by the donees, 36 or which were void from the beginning, 37 or for any other reason could not 27 See ante § 496. 28 Batchelder, Petitioner. (1888), 147 Mass. 465, 18 N. E. 225 ; Lamb v. Lamb (1892), 131 N. Y. 227, 234, 30 N. B. 133; Stout V. Stout (1888), 44 N. J. Eq. 479, 15 Atl. 843 ; Lloyd's Es- tate (1898), 188 Pa. St. 451, 41 Atl. 733; Weed v. Seofleld (1901), 73 Conn. 670, 49 Atl. 22 ; Trusty v. Trusty (1900, Ky.), 59 S. W. 1094, 22 Ky. L. 1127; Sullivan v. Larkin (1899), 60 Kan. 545, 57 Pac. 105. 29 Jacob's Estate (1891), 140 Pa. St. 268, 21 Atl. 318, 11 L. R. A. 767, 23 Am. St. Hep. 230. A gift was "that the remainder of my property be sold and equally di- vided." "It is suggested that the tes- tator did not mean * » * that the money should be sold ; * * * but non constat that he did not intend to dispose of it." Harkness v. Harkey (1884), 91 N. Car. 195. 30 See post g§ 523-529. si See ante § 504. 32 Drew v. Wakefield (1865), 54 Me. 291, 297; Allen, In re (1896), 151 N. T. 243, 45 N. E. 554. 38 See ante § 503. 34Giddlngs v. Glddings (1894), 65 Conn. 149, 32 Atl. 334, 48 Am. St. Rep. 192 ; Moffett v. Blmendort (1897), 23 152 N. Y. 475. 487, 46 N. E. 845, 57 Am. St. Rep. 529, 535. Or by convey- ance : Donohoo v. Lea (1851), 1 Swan (31 Tenn.) 119, 55 Am. Dec. 725. 86 See post §§ 671-2. 86 Sawyer v. Freeman (1894), 161 Mass. 543, 37 N. E. 942 ; Small v. Mar- burg (1893), 77 Md. 11, 25 Atl. 920; Haebler v. John Eichler B. Co. (1898), 25 Misc. 576, 55 N. T. S. 1071 ; Peek- ham v. Newton (1886), 15 R. I. 321, 4 Atl. 758. Contra: Richardson v. Sinkler (1802), 2 Des. (S. Car.) 127, 138. 87 Hayden v. Stoughton (1827), 5 Pick. (22 Mass.) 528; Dexter v. Har- vard College (1900), 176 Mass. 192, 57 N. E. 371 ; Doe d. Hearn v. Cannon (1869), 4 Houst. (Del.) 20, 15 Am. Rep. 701; Helms v. Franciscus (1830), 2 Bland Ch. (Md.) 544, 20 Am. Dee. 402; Mahorner v. Hooe (1848), 9 Sm. & M. (Miss.) 247, 48 Am. Dec. 706; Morton V. Woodbury (1897), 153 N. Y. 243, 252, 47 N. E. 283; Gallavan v. Gallavan (1900), 64 N. Y. S. 329, af- firmed (1901) 57 App. Div. 320, 68 N. Y. S. 30; Clarke v. Cotton (1832), 2 Dev. Bq. (N. Car.) 301, 24 Am. Dec. 279. Contra: Davis v. Davis (1900), 62 Ohio 411, 416, 57 N. B. 817. §521 WILLS. 354 operate; 38 and this though the gift was in terms, "after payment of the above." 39 "Very special words are re- quired to take a bequest of the residue out of this gen- eral rule." 40 "It is immaterial that the will shows that the testator expected and intended a gift to go another way, and did not expect it to pass under the residuary clause, unless the will discloses a distinct in- tention that it should not pass as part of the residue, even if the specified intention fails." 41 The operation of the clause is not to be restricted by reason of the fact that it appears from the will that the testator was mistaken as to the amount of the residue. 42 But what falls out of the residue, will not go to the 88 As If the devisee failed to per- form the condition precedent.' Rockwell v. Swift (1890), 59 Conn. 289, 20 Atl. 200. On failure of trusts affecting a sum directed to be set apart out of the residue, It falls back into and passes as residue and not to the next of kin. Parker, In re (1901), 1 Ch. D. 408, 84 L. T. 116, 70 L. J. Ch. 170, 49 W. R. 215. See also Harrington v. Pier (1900), 105 Wis. 485, 82 N. W. 345, 76 Am. St. 924. If the will directs $5,000 spent on a monument and the executors spend only $625, the residue does not take the difference. Canfield y. Canfield (1901), 62 N. J. Eq. 578, 50 Atl. 471. 39TIndall v. Tindall (1873), 24 N. J. Eq. 512, Mechem 97 ; Ricker v. Corn- well (1889), 113 N. Y. 115, 125, 20 N. E. 602; Sorrey v. Bright (1835), 1 Dev. & Bat. (S. Car.) 113, 28 Am. Dec. 584; Lopez v. Lopez (1885), 23 S. Car. 259. Contra: Davis v. Davis (1900), 62 Ohio 411, 57 N. B. 317. "A gift of 'all other land' or of 'all land not hereinbefore devised,' Is to be regarded as a devise of the residue, and not as indicating an intention 'to exclude lapsed specific gifts.' " Moffett v. Elmendorf (1897), 152 N. T. 475, 488, 46 N. E. 845, 57 AmNSt. Rep. 529, 536, and numerous cases there cited. But see Williams v. McKeand fl.899), 119 Mich. 507, 78 N. W. 553. 40 Bland v. Lamb (1820), 2 Jac. & Walk. 406; Benson, Matter of (1884), 96 N. T. 499, 510. 41 Per Holmes, J., In Batchelder, Petitioner (1888), 147 Mass. 465, 468, 18 N. E. 225 ; s. p. Morton v. Wood- bury (1897), 153 N. T. 243, 254, 47 N. E. 283. "I think the doctrine is firmly estab- lished, by the reported cases and by the text books, that where the residu- ary bequest is not circumscribed by clear expressions in the instrument, and the title of the residuary legatee is not narrowed by special words of un- mistakable import, he will take what- ever may fall into the residue, whether by lapse, invalid dispositions, or other accident." Per Gray, J., In Ricker v. Cornwell (1889), 113 N. T. 115, 127, 20 N. E. 602 ; quoted in Morton v. Woodbury, above. To the same effect : Mollneaux v. Reynolds (1896), 55 N. J. Bq.. 187, 36 Atl. 276. 42 A will provided that the residue was to be used to erect a "suitable and proper" monument over her grave. This was not enough to restrict a gen- eral residue amounting to $8,000. Davis v. Chase (1902), 181 Mass. 39, 62 N. E. 959. A will provided that If the residue was less than $3,000, it should be used at once as the trustees of S. college saw fit; if more than $3,000, to be Invested till It amounted to $10,000, and then used as a permanent endow- ment. It amounted to $37,000. All passed. Rollins v. Haven (1898), 69 N. Hamp. 415, 45 Atl. 141. 355 ASCERTAINING WHAT PEOPEBTY IS INCLUDED. § 522 other residuary donees. 43 And till all legacies are paid there is no residue, so that lapsed and void legacies will be appropriated to the payment of the other general legacies till all are fully satisfied before the residuary legatee takes any. 44 Moreover, the residuary clause must not be construed so as to restrict specific provisions, preceding 45 or following. 46 § 522. Particular Residue. While the courts incline to hold that the clause was general, it may appear by explicit statement, or by there being several residuary clauses in the will, that a particular residue only was intended; and if that appears, nothing passes but the residue of that particular property, 47 increased by the lapse or invalidity of any gifts to be taken out of such property. 48 10. EEOM WHAT TIME THE WILL SPEAKS. § 523. Specific Bequests. It often happens that the property is not the same when the testator dies as it was when he made his will. He has acquired more prop- erty of some kinds, has used or disposed of some, and some has been converted to a new form. Of what time 48 Powers v. Codwise (1899), 172 227, 30 N. B. 133; Corr'8 Estate Mass. 425, 52 N. B. 525, void legacy. (1902), 202 Pa. St. 391, 51 Atl. 1032; See also post §§ 671-2. Boy v. Monroe (1890), 47 N. J. Eq. But what falls out of one residue 356, 20 Atl. 481 ; Miller v. Worrall might fall Into another. Morton v. (1901), .62 N. J. Eq. 776, 48 Atl. 586, Woodbury (1897), 153 N. T. 243, 257, 90 Am. St. Rep. 480; Sherman v. 47 N. E. 283. Baker (1898), 20 R. I. 446, 40 Atl. 11, 44 Sawyer v. Freeman (1894), 161 40 L. R. A. 717; Kimball's Will (1898), Mass. 543, 37 N. E. 942 ; Porter v. 20 R. I. 619, 40 Atl. 847 ; Lenz v. Sens Howe (1899), 173 Mass. 521, 54 N. B. (1901, Tex. Civ. App.), 66 S. W. 110. 255; Wetmore v. St. Luke's Hospital 48 English v. Cooper (1899), 183 111. (1890), 56 Hun. (N. T.) 313; Nicker- 203, 55 N. E. 687; Rogerson, In re son v. Bragg (1899), 21 R. I. 296, 43 (1901), 1 Ch. D. 715, 84 L. T. 200, 70 Atl. 539. I* J- Ch. 444. But see Ricker v. Corn- 45 Dickison v. Dickison (1891), 138 well (1889), 113 N. T. 115, 125, 20 111. 541, 28 N. E. 792, 32 Am. St. Rep. N. E. 602. 163, Mechem 104 ; Plummer v. Shep- When a gift with absolute power to herd (1902), 94 Md. 466, 51 Atl. 173. dispose was made of personalty on con- 46 Burke v. Stiles (1889), 65 N. dition which the legatee refused to Hamp. 163, 18 Atl. 657. perform, so that the gift never, took 47 Mahorner v. Hooe (1848), 9 Sm. effect, still the bequest over of what & M. (Miss.) 247, 48 Am. Dec. 706; should be left was held not to take Moffett v. Blmendorf (1897), 152 N. effect. Mills v. Newberry (1885), 112 Y. 475, 46 N. E. 845, 57 Am. St. Rep. 111. 123, 54 Am. Rep. 213. But see 529; Lamb v. Lamb (1892), 131 N. T. post § 591. 524 WILLS. 356 does the will speak? If he gives a specific thing, he speaks of the time of writing. If he gives his watch, his saddle horse, or the like, it is the watch or the saddle horse he had when the will was made and no other that passes, 49 unless it appears that he was not speaking of the particular article; which might be the same as in gifts to the wife of a person, an intention may appear to benefit any wife. 50 Likewise if he speaks explicitly of an existing state of things, though the gift be general; thus, "eighty-one shares of the P. L. stock now standing in my name on the books of the company," would not pass stock afterward purchased. 61 § 524. General Bequests. As to general gifts of per- sonal property, the rule has always been that everything passes which answers the description at the death of the testator. 52 Thus, Shaw, C. J., said: "Should a 49 Fidelity Co.'s Appeal (1885), 108 Pa. St. 492, 1 Atl. 233. 50 See ante § 464. 61 Fidelity Co.'s Appeal, above ; Sin- nott v. Kenaday (1899), 14 App. Cas. D. C. 1 ; same case (1900), 179 TJ. S. 606; Tillinghast, In re (1901), 23 R. I. 121, 49 Atl. 634 ; Richmond v. Van- hook (1845), 3 Ired. Eq. (38 N. Car.) 581, a bequest of a slave and her chil- dren held not to pass afterborn chil- dren. See also 2 Bigelow's Jarman *289. "We must suppose that when a per- son is disposing of property, he must mean the property which he possesses at the time, because he cannot know what property he may in the future acquire. When, therefore, a person speaks of a specific bequest, he must necessarily refer to some specific thing then in his power or possession. And yet In the same case Lord Hardwick says, where the legacy is universal, as of all a man's goods, or even where it is specific, if of property in its nature fluctuating, as a flock of sheep, it must relate to the death." Elcock's Will (1826), 4 McCord (S. Car.), 39, 17 Am. Dec. 703. In Updike v. Thompson (1881), 100 111. 406, the provision was, "I hold a number of notes against my brother George" one for $900, to be cancelled at my death, and "if I survive my mother I want all the other notes can- celled." It was held that there was no authority for cancelling notes given after the will was made. To the same effect see: VanAlstyne v. VanAIstyne (1863), 28 N. Y. 375; Rogers v. Rog- ers (1897), 153 N. Y. 343, 47 N. E. 452; Walls v. Walls (1897), 182 Pa. St. 226, 37 Atl. 859. In Clarke's Estate (1876), 82 Pa. St. 528, the testator directed his ex- ecutors to procure for every child that should be born to his son "stocks of the same amount and value (viz : $10,- 000) as those herein bequested," etc. ; and it was held that the value was fixed by the will at $10,000, and not on the value at the time of the pur- chase. In Shaffer's Succession (1898), 50 La. An. 601, 23 So. 739, a legacy of notes was held not defeated by taking new notes, for better security, in place of the old. 02 Wind v. Jekyl (1719), 1 P. Wms. 575; Briggs v^ Briggs (1886), 69 Iowa 617, 29 N. W. 632; Loveren v. Lamprey (1851), 22 N. Hamp. 434, 442; Morse v. Macrum (1892), 22 Ore. 229, 236, 29 Pac. 615; Donohoo v. Lea (1851), 1 Swan (31 Tenn.) 142, 55 Am. Dec. 729. For example, it was held that the 357 ASCEETAINING WHAT PEOPBBTY IS INCLUDED. § 525 man bequeath all his estate in the public funds, all his bank stock, or all his farming stock and utensils, it would embrace all held at the time of his decease, whether held at the date of the will or acquired after- wards." 53 The statutes passed primarily to make wills effective on after-acquired lands have had an indirect effect on the construction of general bequests of per- sonalty, requiring some plainer indication of such an in- tention to exclude after-acquired personalty. 54 §525. Devises at Common Law. We have already seen that no expression of intention to pass after-ac- quired land could operate to pass anything beyond the title owned by the testator at the time of executing the devise. 65 But it was held that the execution of a codicil brought the will down to the date of the codicil, so as to make general devises operative on all lands ac- quired during the interval, though the particular pro- vision of the will was not mentioned in the codicil. 66 § 526. General Devises Under the Statutes. In a few states the only statute found is simply a provision in general terms that every person of full age and sound mind may by will dispose of all his estate, real and per- sonal. 57 Under these statutes it is held that a general devise without mentioning after-acquired real estate bequests must t>e paid out of the per- death ; and it was held that the widow sonal property, though the testator was entitled to the whole. had only land when he made his will. 65 See ante § 368. Canfleld v. Bostwick (1852), 21 Conn. 56 So held In Wait v. Belding (1837), 550. 24 Pick. (41 Mass.) 129, in which the 53 Wait v. Belding (1837), 24 Pick, question is ably discussed by Shaw, (41 Mass.) 129, 136. C. J. See also : Bremmer v. Sohler (1848), See also ante § 397. 1 Cush. (55 Mass.) 118, 133. bt May Dispose of All. The fol- 54 Goodlad v. Burnett (1855), 1 lowing are believed to be all the stat- Kay & J. 341 ; Fidelity Co.'s Appeal utes of this class ; (1885), 108 Pa. St. 492, 1 Atl. 233. Arkansas— Dig. Stat. (1894), § 7390. In Russell v. Chell (1882), 19 Ch. Indian Territory— Statutes (1899), D. 432, a testator owning a third § 3562. interest in a partnership business at Missouri — Rev, Stat. (1899), § the date of his will, bequeathed to his 4602. wife his interest in the business of that New Mexico — Comp. Laws (1897), partnership. Afterward he acquired § 1946. the interests of his brothers, and was Oregon — Hill's An. Laws (1892), § the sole owner at the time of his 3066. 526 WILLS. 358 sufficiently indicates an intention to include it, and that all the testator had at his death shall pass. 58 In other states, without stating what the presumed intention shall be, it is provided that the testator shall have power to devise all he has or at the time of his death shall have; 59 and the effect of these statutes is to carry the whole estate owned at death, in cases of general devises, 60 though nothing was said of new acquisitions in either case. In other states the statutes provide that after- acquired interests in land shall pass if such clearly ap- pears to have been the testator's intention; 81 and under these statutes it is generally held that after-acquired lands will pass by general words, without mention of the future. 62 In the rest of the states, being more than a half of all, it is provided that the will shall be construed 68 Hardenbergh y. Ray (1893), 151 V. S. 112; Patty v. Goolsby (1888), 51 Ark. 61, 9 S. W. 846; Liggat v. Hart (1856), 23 Mo. 127; Webb v. Archi- bald (1895), 128 Mo. 299, 34 S. W. 54; Henderson v. Ryan (1864), 27 Tex. 670. In Florida after-acquired lands can- not be devised. Frazler v. Boggs (1896), 37 Fla. 307, 317, 20 So. 245. 59 May Dispose of All at Death. This class is believed to include only the following : Arizona — Rev. Stat. (1901), § 4213. Colorado — Mills's An. Stat. (1891), f 4652. Illinois — Hurd's Rev. Stat. (1899), c. 148, S 1. Mississippi — Code (1892), § 4488. Texas — Sayles's Civ. Stat. (1897), 5 5334. 60 Clayton v. Hallett (1902), — Col. — , 70 Pac. 429, 59 L. R. A. 407 ; Woman's Union M. S. A. v. Mead (1890), 131 111. 338, 357, 23 N. B. 603 ; Doe d. Wynne v. Wynne (1852), 23 Miss. 251, 57 Am. Dec. 139. « All if Intent Appears. Such is the case in : Iowa— Code (1897), § 3271. Kansas — Gen. Stat. (1901), § 7991. Maine — Rev. Stat. (1883), c. 74, g 5. Michigan — Comp. Laws (1897), § 9264. Minnesota — Gen. Stat (1894), § 4425. Nebraska — Comp. Stat. (1901), § 2639. Nevada — Comp. Laws (1900), g 3090. New Hampshire — Pub. Stat. (1901), c 186, § 7. Ohio — Bates's An. Stat. (1898), § 5969. Vermont — Statutes (1894), § 2347. Washington — Bal. Codes & Stat (1897), § 4610. Wisconsin — Statutes (1898), § 2279. Wyoming — Rev. Stat. (1899), § 4567. 62 United States — McClaskey v. Barr (1893), 54 Fed. Rep. 781, under Ohio law, and reviewing many cases. Iowa — Briggs v. Briggs (1886), 69 Iowa 617, 29 N. W. 632. Kansas — Durboraw v. Durboraw (1903), — Kan. — , 72 Pac. 566. Ohio — Pruden v. Pruden (1862), 14 Ohio St. 251. Maine — Paine v. Forsaith (1891), 84 Me. 66, 24 Atl. 590. Massachusetts — Cushing v. Aylwin (1846), 12 Mete. (53 Mass.), 169; Winchester v. Forster (1849), 3 Cush. (57 Mass.) 366. . New Hampshire — Loveren v. Lam- prey (1851), 22 N. H. 434, 445. Tennessee — Wynne v. Wynne (1852), 2 Swan (32 Tenn.) 404, 58 Am. Dec 66. Contra: District of Columbia — Crenshaw v. 359 ASCEETAINING WHAT PKOPEETY IS INCLUDED. § 527 to speak from the death, of the testator, or to pass every- thing he could then dispose of, or with the added limita- tion (which would he understood) that a contrary in- tention does not appear from the will ; 63 and under these statutes very narrow words will include, and very clear words are required to exclude, after-acquired lands. 6 * But if the will contains only specific devises and no residuary clause, after-acquired lands are necessarily intestate. 65 § 527. Intention to Restrict to Property Then Owned. When the testator makes a general devise of all his McCormick (1902), 19 App. Cas. 494. And see Allen v. Allen (1855), 18 How. (59 U. S.) 385. Bhode Island — Pierce, In re (1898), 20 E. I. 380, 39 Atl. 430; Church v. Warren (1884), 14 R. I. 539. ss Presumed to Include All. Alaska — An. Codes (1900), part 5, § 161. Alabama — Civ. Code (1896), § 4244. California — Civ. Code (1901), § 1312. Connecticut— Gen. Stat. (1902), § 292. Delaware — Rev. Code (1893), c. 84, I 25. District of Columbian— Since Jan., 1902 — see Crenshaw v. McCormick (1902), 19 App. Cas. D. C 494, 502. Florida — Rev. Stat. (1892), § 1794. Georgia — Code (1895), § 3329. Hawaii — Civ. Laws (1897), §2128. Idaho — Civ. Code (1901), §2527. Indiana — Burns's An. Stat. (1901), § 2737. Maryland — Pub. Gen. Laws (1888), Art. 93, § 321. Massachusetts — Rev. Laws (1902), c. 135, | 23. Montana — Civ. Code (1895), § 1757. New York — Birdseye'e Gen. Laws p, 4019, § 5. New Jersey — Gen. Stat. (1895), p. 3761, § 24. North Carolina — Rev. Code (1855), c. 119, § 6. North Dakota — Rev. Codee (1899), § 3683. Oklahoma— Stat. (1893), § e202. Pennsylvania — Pepper 4. L. Dig. (1894), p. 1447 § 42. Rhode Island — Gen. Laws (1896), title 22, § 6. South Carolina — Rev. Stat. (1898), § 1984. South Dakota — An. Stat. (1901), § 4531. Tennessee — Code (1896), § 3927. Utah — Rev. Stat. (1898), §§ 2766, 2781. Virginia — Code (1887), $ 2521. West Virginia — Code (1899), c. 77, §10. 64 The following are a few of the decisions under these statutes : Bear- ing v. Selvey (1901), 50 W. Va. 4, 40 S. E. 478; Lamb v. Lamb (1892), 131 N. Y. 227, 30 N. E. 133; Flummerfelt v. Flummerfelt (1893), 51 N. J. Eq. 432, 26 Atl. 857. After acquired realty was held to pass under "all the remainder of my effects." Ruckle v. Grafflin (1898), 86 Md. 627, 39 Atl. 624. And under "the remainder and residue of my money," in Jacobs's Estate (1891), 140 Pa. St. 268, 21 Atl. 318, 11 L. R. A. 767. In the .last case the testator had no land when the will was made, but by con- version afterward her personal estate was so reduced as to be wholly inade- quate to pay the legacies. In Teel v. Hilton (1890), 21 R. I. 277, 42 Atl. 1111, a fund was charged by the will with the payment of legacies, and land afterward purchased with the fund was held charged with the trust and not to go to the residuary devisee. 66 Flynn v. Holman (1903), — Iowa — , 94 N. W. 447. §528 WILLS. 360 property, real estate, or the like, or all the rest or residue of it, and then proceeds to enumerate it, the same ques- tion is presented which we recently discussed, as to whether the addition was intended to restrict. 66 When the testator expressly or by clear implication refers to the then existing state of things, after-acquired property will not pass by the devise. Thus, if he gives " all I now own and possess," 67 "the house where I now reside," 68 or the like, 69 it would not include property afterwards acquired and answering the description at the death of the testator. But "all my land in W" includes not. only what the testator owned there when the will was made, but all he owned there when he died. 7 " § 528. Specific Devises Under the Statutes. A devise of property by name will ordinarily be understood to mean the property that answered that name when the will was written, 71 but would include such additions to ee See ante §§ 508-510. The addition was held restrictive in the following cases: Bourke v. Boone (1902), 94 Md. 472, 51 Atl. 396, "all the land belonging to me being," etc. ; S. P. : Williams v. McKeand (1899), 119 Mich. 507, 78 N. W. 553; Webb y. Archibald (1895), 128 Mo. 299, 34 S. W. 54, "all my real estate, being the farm on which I now reside ;" Bedell v. Fradenburgh (1896), 65 Minn. 361, 68 N. W. 41, "all my real estate and property and interest in real estate and property of whatever kind soever situate and being In To- ledo, Ohio ;" Wheeler v. Brewster (1896), 68 Conn. 177, 36 Atl. 32, "the residue of my real estate, being a lot of land adjoining his own ;" Quinn v. Hardenbrook (1873), 54 N. T. 83, "all the real and personal estate I now possess or may hereafter become heir to, either from the estate of G, or from T ;" Teel v. Hilton (1899), 21 K. I. 227, 42 Atl. 1111, "all my real estate on the island of C, being," etc. The addition was held not restrictive in the following: Williams v. Brice (1902), 201 Pa. St. 595, 51 Atl. 376, "all the residue of my real estate, con- sisting of the 1-6 part of the follow- ing," (a number of cases being re- viewed). 67 Haley v. Gatewoftd (1889), 74 Tex. 281, 12 S. W. 25. 68 Inhabitants v. Bruch (1883), 37 N. J. Bq. 483. 69 Sharpe v. Allen (1880), 73 Tenn. 81, "I have some real and personal property, and I do hereby make the following disposition of it * * * ail and singular of which I do hereby give," etc. 70 Dickerson's Appeal (1887), 55 Conn. 223, 10 Atl. 194, 15 Atl. 99 ; Dickinson v. Dickinson (1879), 12 Ch. D. 22; Smalley v. Smalley (1883), 49 L. T. 662. "If a testator devise all his land In the parish of B, and then makes a residuary devise of all his other lands, the former devise will carry all other lands which he may subsequently ac- quire in that parish." Per Lindley, J., in Portal and Lamb, In re (1885), 30 Ch. D. 50, 55— C. A. 7iHines v. Mercer (1899), 125 N. Car. 71, 34 S. E. 106, "a tract at or near T." But a devise of the "old homestead" was held to refer to a place owned by him and formerly oc- cupied as a homestead, because the homestead occupied when the will was made belonged to his wife. Moore v. Powell (1897), 95 Va. 258, 28 S. B. 172. 361 ASCEETAINING WHAT PBOPERTY IS INCLUDED. § 529 it 72 and such further interests in it, 73 as the testator acquired at any time during his life; 74 and under the statutes declaring that the will shall speak, as to the property devised, as if made immediately before the death of the testator, it has been held that parts of the estate severed and put to another use after the will was made would not pass. 75 § 529. Retroactive Effect of the Statutes. It is gen- erally held that these statutes apply to wills made before the law was passed if the testator died afterwards. 76 72 Macrae v. Lowrey (1902), 80 Lamprey (1851), 22 N. Hamp. 434, Mias. 47, 31 So. 538, "the Cunning- 445; Wynne v. Wynne (1852), 2 Swan bam place." But In Ayer v. Estabrooka (32 Tenn.) 404, 58 Am. Dec. 66 ; Wel- (1902), 2 N. B. Eq. (Can.) 392, "the born v. Townsend (1889), 31 S. Car. homestead farm on which I now re- 408, 10 S. E. 96 ; McGruder v. Car- side" was held not to Include a discon- roll (1853), 4 Md. 335, 347. nected tract bought afterwards. Contra: Morgan v. Huggins (1890), 73 Williams v. Brlce (1902), 201 Pa. 42 Fed. 869, 9 L. R. A. 540, a case St. 595, 51 Atl. 376. governed by the Georgia decisions ; 74 The effect of a subsequent sale Brewster v. McCall (1842), 15 Conn, and repurchase, as a revocation has 274, 290; Gibbon v. Gibbon (1869), already been considered. See ante §§ 40 Ga. 562; Battle v. Speight (1848), 368-S71. . 9 Ired. L. (31 N. Car.) 288; Gable v. 75 Potter, In re (1900), 83 Law Daub (1861), 40 Pa. St 217; Mullock Times 405. v. Souder (1843), 5 W. & S. (Pa.) 198. 7« dishing v. Aylwln (1846), 12 See also ante § 403. Mete. (53 Mass.) 169; Loveren v. CHAPTEB XVI. QUANTITY OR DURATION OF THE ESTATE. Personal Property. 5 530. Personalty without Lim- itation. {531. Personalty in Tail. §532. Rule in Shelley's Case. §533. Power to Limit Estate Over After Life Estate in Personalty. {534. Rights of Life Tenant 8 535. Words of Limitation. {536. Life Estate With Power of Disposal. §537. Bequest of Undefined Es- tate with Power of Dis- posal. §538. Other Executory Be- quests. Eeal Estate. A. Without Limitation. §539. Devise Without Words of Perpetuity at Com- mon Law. §540. Devise Without Words of Perpetuity— Modern Law. B. Income, Use, etc. § 541. Gifts of Income. § 542. Use and Occupation. G. Devises Coupled with Powers. § 543. Effect of Estate with Power — In General. — Same — Effect of §544. 1545. 1646. Special Power. Same — Some Hold General Power to De- feat Gift. The Base Pee with General Power. Foundation of the D. §547. §548. Rule Above Stated. The Rule in Shelley's Case. § 549. The Rule in Shelley's Case — Gifts to One and His Heirs. § 550. Gifts Expressly for Life. § 551. American Law. E. The Rule in Wild's Case. § 552. Rule in Wild's Case — When There Are No i 553. §554. Above De> cislons Disapproved. Children. Same — A Word of Purchase If There Were Children. S a m e — Whether Parent and Children Take Concurrently or Successively. Same — A Gift to One for Life, Remain- der to his Children. . Issue as a Word of Limita- tion. § 556. To A and his Issue. To A for Life, Remain- der to his Issue. Effect of Added Words of Limitation. When Issue Means Children. Effect of Devise Over. Where Rule in Shelley's Case Has Been Abol- ished. §555. §557. §558. §559. §560. §661. 1. PEESONAL PROPERTY. §530. Personalty Without Limitation. A gift of personal property without limitation of time or specifi- cation of the duration of the estate always vested in the donee the absolute ownership. 1 Likewise, a gift of lWellford v. Snyder (1890), 137 U. 639; Lorlng v. Hayes (1894), 86 Me. S. 521; Barrett's Will (1900), 111 351, 29 Atl. 1093; McCune v. Baker Iowa 570, 82 N. W. 998, 6 Pro. R. A. (1893), 156 Pa. St. 508, 26 Atl. 658; 362 363 QUANTITY OB DURATION OF THE ESTATE. § 531 the income, use, or occupation, of personalty, without words of limitation, bequeaths the principal absolutely. 2 § 531. Personalty in Tail. A gift of personal prop- erty with words of limitation which would create an estate tail in lands, vests the absolute title in the legatee. 3 §532. Rule in Shelley's Case. Though personalty does not go to the heirs of the deceased, a gift to a man and his heirs, or to him and his representatives, gives him the title absolute, neither his heirs nor his repre- sentatives taking anything as purchasers. So also, a gift to a man for life and then to his representatives or to his heirs, by analogy to the rule in Shelley's Case, gives him the whole property, and his heirs or representa-' tives nothing; but the rule gives way to a manifest in- tention more readily than in cases of real property. 4 § 533. Power to Limit Estate over after Life Estate in Personalty. 8 The rules of the ancient common law did not permit limitations over after life estates in per- sonalty, created by act inter vivos. But out of favor to wills, such limitations in them were suffered and sus- tained; at first only when the life estate was of the use merely, and later without that restriction. 6 In such cases an exception has also been recognized of those things Nye v. Koehne (1900), 22 R. I. 118, ber of English cases; Cleveland v. 47 Atl. 215; Bruce v. Goodbar (1900), Havens (1860), 13 N. J. Eq. (2 Beas.) 104 Tenn. 638, 646, 58 S. W. 282 ; 101, 78 Am. Dec. 90 ; Swain v. Eascoe Smith v. Gates (1797), 2 Root (Conn.) (1842), 3 Ired. L. (N. Car.) 200, 38 522, 1 Am. Dec. 89. Am. Dec. 720; Tllllnghast, In re 2Wellford v. Snyder, above; Martin (1903), — R. I. — , 55 Atl. 879; v. Fort (1897), 83 Fed. 19; 27 C. C. Cooke v. Bucfclln (1894), 18 R. I. 666, A. 428; Barrett's Will, above; Cros- 29 Atl. 840; Duncan v. Martin (1835), grove v. Crosgrove (1897), 69 Conn. 7 Terger (Tenn.) 519, 27 Am. Dec. 219, 38 Atl. 219; Sampson v. Randall 525; Shearman v. Angel (1831), 1 (1881), 72 Me. 109; Huston v. Read Bailey Eq. (S. Car.) 351, 23 Am. Dec. (1880), 32 N. J. Eq. 591, 596; Craft v. 166. Snook (1860), 3 N. J. Eq. (2 Beas.) 4 Glover v. Condell (1896), 163 111. 121, 78 Am. Dec. 94, citing several 566, 45 N. E. 173, 35 L. R. A. 360; English cases; Earl v. Grim (1815), 1 Knox v. Barker (1898), 8 N. Dak. Johns. Ch. (N. T.) 494 ; and see post 272, 78 N. W. 352 ; Taylor v. Lindsay g 541. (1884), 14 R. I. 518, and cases cited. SMaulding v. Scott (1852), 13 Ark. 6 See note 67 Am. Dec. 453. 88, 56 Am. Dec. 298, reviewing many 6 2 Bl. Com. 398 ; Freem. Ch. 206, C. American cases; Hughes v. Niklas 280; McCall v. Lee (1887), 120 111. (1889), 70 Md. 484, 17 Atl. 398. 14 261, 268, 11 N. E. 522; Glover v. Am. St. Rep. 377, reviewing a num- Condell (1896), 163 111. 566, 45 N. H. § 534 WILLS. 364 of which the use consists in the consumption, such as wines, vegetables, and the like; as to which the limita- tion over has been held void. 7 But if the gift is general, not specific, so as to include what is consumed in the use and what is not, the exception does not apply, and the life tenant is bound to convert all such articles into money, taking only the use and saving the principal for the remaindermen. 8 § 534. Rights of Life Tenant. When specific chattels were given to one for life with remainder over, the life tenant was often required by the chancery at the suit of the remainderman to give bond for the forthcoming of the property at his death. 9 But this practice has now been generally abandoned, and no security can be re- quired in such cases without showing real danger that the property will be wasted. 10 In ordinary cases an in- ventory is all that can be required. If the gift is of a specific thing, or of specific things, the legatee is entitled to the possession of the thing or things in specie, as a matter of course; and the rule above mentioned, that limitations over of interests in things which are con- 173, 35 L. R. A. 360; Griggs v. Dodge McMullan (S. Car.) 459. And see (1805), 2 Day (Conn.) 28; Boughton German v. German (1856), 27 Pa. St. v. West (1850), 8 Ga. 248; Crawford 116, 67 Am. Dec. 451, and note, v. Clark (1900), 110 Ga. 729, 36 S. B. 9 Anonymous (1695), Preem. Ch. 404, 6 Pro. R. A. 15. 206; Bracken v. Bentley (1637), 1 7 Randall v. Russell (1817), 3 Merl- Rep. Ch. 59; and many cases cited In vale 190, 193 ; Turner v. Turner note 67 Am. Dec. 453. (1901, Ind. Ter.), 64 S. W. 543; 10 No Security Required. Id. ; Healey Chase v. Howie (1902), 64 Kan. 320, v. Toppan (1864), 45- N. Hamp. 243, 67 Pac. 822 ; Whittemore v. Russell 261, and cases cited ; Johnson v. Goss (1888), 80 Me. 297, 14 Atl. 197, 6 Am. (1880), 128 Mass. 433; Garrity, In re St. Rep. 200; Evans v, Inglehart (1885), 108 Cal. 463, 38 Pac. 628; (1834), 6 Gill & J. (Md.) 171, 197; Houser v. Ruffner (1881), 18 W. Ta. Healey v. Toppan (1864), 45 N. Hamp. 244. 243; Henderson v. Vaulx (1836), 10 Contra: Security was required in Terger (18 Tenn.), 30. But see Taber Whittemore v. Russell (1888), 80 Me. v. Packwood (1805), 2 Day (Conn.) 297, 14 Atl. 197, 6 Am. St. Rep. 200: 52. Puller v. Puller (1892), 84 Me. 475/24 s Evans v. Inglehart (1834), 6 Gill Atl. 946. & J. (Md.) 171, 197; Covenhoven v. Even when security may be de- Shuler (1830), 2 Paige (N. T.) 122, manded, it is a matter for the re- 21 Am. Dec. 73, Mechem 99 ; Bartlett raainderman, and the executor is not v. Patton (1889), 33 W. Va. 71, 10 S. liable to him because of paying with- E. 21, 5 L. R. A. 522 ; Henderson v. out taking a refunding bond. Dodson Vaulx (1836), 10 Terger (18 Tenn.) v. Sevars (1894), 52 N. J. Eq. 611, 30 30; Patterson v. Devlin (1827), 1 Atl. 477. 365 QUANTITY OB DUBATION OF THE ESTATE. § 535 sumed in the use is void, results from this fact. In Howe v. Earl of Dartmouth (1802) n the rule was established that where a gift of personalty is not specific, but a general gift of all such property, or of the residue of such property generally, to a person for life, with a remainder over, and where such general bequest includes perishable property, the whole must be sold and con- verted into permanent securities, and only the income given to the life tenant. But this rule has not since met with favor; and the courts have accepted the slightest expressions as indicating an intention that the life ten- ant should have the property in specie, in which case no bond is required unless as above indicated. 12 § 535. Words of Limitation. Any expression show- ing an intention to limit the gift to a life estate has that effect, 13 though no disposition of the residue is made. 14 And when the duration is not in terms limited in the 11 7 VeB. 137. 12 Oases Holding No Security Re- quired Even m General Bequests. Garrity, In re (1895), 108 Cal. 463, 38 Pac. 628, reviewing the cases at length, and holding the tenant for life entitled to $8,068 in specie without security, because it was to him "to have and to hold ;" Buckingham v. Morrison (1891), 136 111. 437, 27 N. E. 65; Poland v. Chism (1901, Ky.), 64 S. W. 833, the gift over being of what remained ; Starr v. McEwan (1879), 69 Me. 334, holding executor hound to turn property over without bond, as failure of life tenant to have the property forthcoming was a mat- ter only between her and the re- mainderman; Taggart v. Piper (1875), 118 Mass. 315, same point as the last case, there being nothing to indicate danger of waste ; Johnson v. Goss (1880), 128 Mass. 433, same point; Sutphen v. Ellis (1877), 35 Mich. 446, same point, specific enjoyment being required by expression in the gift over of what might "be left;" Healey v. Toppan (1864), 45 N. Hamp. 243, re- viewing and citing many cases; Corle v. Monkhouse (1890), 47 N. J. Eq. 73, 20 Atl. 367, holding the life tenant entitled in specie because the gift over was of the balance "that may be re- maining;" James, Matter of (1895), 146 N. Y. 78, 40 N. E. 876, reviewing many cases and holding life tenant entitled to specific property because of phrase "without restraint, deduction or inter- ference ;" Markley's Estate (1890), 132 Pa. St. 352, 19 Atl. 138, justifying the executor In paying because the gift over was only of the residue ; Harris v. Dawley (1901), 22 R. I. 633, 49 Atl. 29, holding life tenant' entitled to money without security, because of phrase "to have and to hold ;" Houser v. Euflfner (1881), 18 W. Va. 244. 13 Barr v. Weaver (1902), 132 Ala. 212, 31 So. 488; Hooper v. Smith (1898), 88 Md. 577, 41 Atl. 1095; McKee v. McKee (1899, Tenn. Ch. App.), 52 S. W. 320. The fact that no trustee is appointed and no bond is required of the legatee before payment does not give him com- plete power to dispose. Cook v. Col- lier (1901, Tenn. Ch. App.), 62 S. W. 658. nWeller's Succession (1901), 107 La. 466, 31 So. 883; Harris v. Daw- ley (1901), 22 E. I. 633, 49 Atl. 29; Bartlett v. Patton (1889), 33 W. Va. 71, 10 S. B. 21, 5 L. B. A. 523 ; San- ford, In re (1901), 1 Ch. D. 939, 70 L. J. Ch. 591, 84 L. T. 456. 536 WILLS. 366 gift, 18 or is in terms absolute, 16 the gift will be limited to a life estate if the added clauses show that to have been the intention; but in such cases the intention must appear very clearly. 17 § 536. Life Estate With Power of Disposal. 18 A be- quest of a life estate in chattels by express terms, fol- lowed by a power to dispose of so much as may be necessary for support, 19 or by an unlimited power of dis- posal, 20 has generally been held not to enlarge the gift to an absolute ownership. But when the gift is clearly absolute, a limitation over of whatever may be left un- used at the death of the legatee is void. 21 The reason 15 Bowerman v. Sissel (1901), 191 111. 651, 61 N. B. 369; Miller v. Lamprey (1896), 68 N. Hamp. 376, 44 Atl. 528; Souder's Estate (1902), 203 Pa. St. 293, 52 Atl. 177; Sanford, In re, above. 16 Mansfield v. Shelton (1896), 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285; Pelrsol v. Roop (1898), 56 N. J. Eq. 739, 40 Atl. 124. 17 See cases above cited. 18 See note 11 Am. St. Rep. 99 et seq. 19 Baldwin v. Morford (1902), 117 Iowa 72, 90 N. W. 487; Godshalk v. Akey (1896), 109 Mich. 350, 67 N. W. 336; Shapleigb v. Shapleigh (1899), 60 N. Hamp. 577, 44 Atl. 107; Hunt v. Smith (1899), 58 N. J. Eq. 25, 43 Atl. 428. If the life tenant buys In the name of another he holds in trust for the remainderman. Baldwin v. Morford, above. 2° Life Bequest with Absolute Beneficial Power. Gift over good. Connecticut — Mansfield v. Shelton (1896), 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285. Illinois — Metzen v. Schopp (1903), 202 HI. 275, 67 N. E. 36. Indiana— Rusk v. Zuck (1896), 147 Ind. 388, 45 N. E. 691, 46 N. E. 674. Maine — Small v. Thompson (1899), 92 Me. 539, 43 Atl. 509. Maryland — Benesch v. Clark (1878), 49 Md. 497; Mills v. Bailey (1898), 88 Md. 320, 41 Atl. 780. Massachusetts — F o r d v. Tlcknor (1897), 169 Mass. 276, 47 N. E. 877. Hew Hampshire — Burleigh v. Clough (1872), 52 N. Hamp. 267, 13 Am. Rep. 23, reviewing many cases. New Jersey — Robeson v. Shotwell (1897), 55 N. J. Eq. 318, 36 Atl. 780, affirmed 55 N. J. Eq. 824, 41 Atl. 1115, reviewing a number of cases ; Wooster V. Cooper (1895), 53 N. J. Eq. 682. The purchaser from her would then get absolute title. Hughes v. Drovers & M. Bank (1897), 86 Md. 418, 38 Atl. 936. Power When Implied. As to whether power to dispose is implied by gift over of what remains see Bra- mell v. Adams (1898), 146 Mo. 70, 47 S. W. 931; Weeden, Matter of (1902), 37 Misc. 716, 76 N. Y. S. 462, and cases cited. Further as to implied power to dis- pose see: Swarthout v. Ranier (1894), 143 N. Y. 499, 38 N. E. 726, holding the power to dispose for necessaries implied and to include power to mort- gage. In New York. A bequest of person- alty for life with unlimited power of disposal now gives absolute title in New York. In re Moehring (1897), 154 N. Y. 423, 48 N. E. 818. Such Powers Cannot he Ex- ercised by the Will of the donee, but only during and in aid of the en- joyment of the life estate. Ford v. Tlcknor (1897), 169 Mass. 276, 47 N. E. 877; Small v. Thompson (1899), 92 Me. 539, 43 Atl. 509; Tyson's Es- tate (1899), 191 Pa. St. 218, 43 Atl. 131 ; Kirkpatrick v. Kirkpatrick (1902), 197 111. 144, 64 N. E. 297. 21 Browning v. Southworth (1898), 71 Conn. 224, 41 Atl. 768; Fullen- 367 QUANTITY OB DURATION OF THE ESTATE. § 537 is that the whole interest has been given to the first taker, and this gift absolute is not to be reduced to a life estate by mere implication from a subsequent gift over. 22 § 537. Bequest of Undefined Estate with Power of Disposal. From many of these cases it would seem also to be a rule of law, not of construction, that an executory bequest over of what remains undisposed of is incom- patible with a bequest of personalty without limitation with an added unqualified beneficial power of disposal. 23 The reasoning by which this conclusion is reached is not very persuasive, and there are cases denying the rule absolutely. In a recent Pennsylvania case, 24 in which there was a gift of "the whole of my estate real and personal, and to have the same and use it at pleasure, for her sole use as fully, largely, and amply to all intents as I myself could * * * , with full power at any time to sell or dispose of any part or the whole of the same," with bequest over "if any shall remain;" the court held the gift over good; and in giving the opinion wider v. Watson (1887), 113 Ind. 18, to another person, apart from any 14 N. E. 571 ; Cain v. Robertson supposed incongruity, a notion which (1901), 27 Ind. App. 198, 61 N. B. savours of metaphysical refinement 26; Cox v. Anderson (1902, Ky.), 69 rather than of anything substantial, S. W. 953, 24 Ky. L. 721 ; Loring v. one reason which may be assigned in Hayes (1894), 86 Me. 351, 29 Atl. support of the expediency of this rule 1093 ; Robertson v. Hardy. (1895), — is, that in many cases it might be very Va. — , 23 S. B. 766 ; Turner v. Tur- difficult, and even impossible, to ascer- ner (1901, Ind. Ter.), 64 S. W. 543. tain whether any part of the fund re- 22 See cases last above cited, and : mained undisposed of or not ; since if Mansfield v. Shelton (1896), 67 Conn, the person to whom the absolute inter- 390, 35 Atl. 271, 52 Am. St. Rep. 285. est is given left any personalty, it If the testator made no provision might be wholly uncertain whether it for the disposition of the residue, as were a part of the precise fund which to which the power was not exercised, was the subject of the condition or not. It would pass as intestate property. Another reason may be, that it would Folger v. Titcomb (1898), 92 Me. 184, be contrary to the well-being of the 42 Atl. 360. party absolutely entitled to lead him 23 This is the position taken by profusely to spend all that was given Prof. Gray (Restraints on Alienation him, which in many cases might be all § 58), quoting with approval the fol- that he had in the world." lowing from Lord Truro, in Watkins See also : Mills v. Newberry (1885), v. Williams (1851), 3 Macn. & G. (49 112 III. 123, 54 Am. Rep. 213; Eng. Ch.) 622, 629: "It is a rule Meacham v. Graham (1896), 98 Tenn. that, where a money fund is given to 190, 39 S. W. 12, and cases cited, a person absolutely, a condition cannot 24 Tyson's Estate (1899), 191 Pa. be annexed to the gift, that so much St. 218, 43 Atl. 131. as he shall not dispose of shall go over § 538 WILLS. 368 Justice Mitchell said: "The general rule undoubtedly is that a bequest of personalty with power to consume is presumed to be an absolute gift. But, as already, said, this is not a rule of law, but a rule of construction, in aid of discovery of the testator's intention." In another part of his opinion h'e said: "The disposition of the estate violated no rule of law. If he had left it to trus- tees with directions to sell and pay over to the widow from time to time such portions as she should in her own judgment require for her own use, there would have been no difficulty at all in its administration. But, the purpose being clear and lawful, it is the duty of the courts to see that it is carried out and not defeat it for mere inconvenience of form. The extent of the widow's consumption of the estate was within her own control. Her decision was without appeal, but it must have been honestly reached in accordance with the purpose the testator intended, and not merely colorable to defeat his will." 26 § 538. Other Executory Bequests. While bequests over on the death of the legatee without issue then living, or on some other contingency, were not allowed by the early common law, there is no question now but that a gift may be made of personal property with a conditional limitation, such as death without issue then living, and executory bequest over to another on that event; and the gift over is valid. 28 2. BEAL ESTATE. A. Without Limitations. § 539. Devise Without Words of Perpetuity at Com- mon Law. The word "heirs" was never indispensable to devise a fee in land, as it was to pass a fee by deed. 25 See also Smith v. Bell (1832), 6 Rep. 285; Adams v. Lllllbridge (1901), Peters (31 U. S.) 68; Bowerman v. 73 Conn. 655, 49 Atl. 21. Sessel (1901), 191 111. 651, 61 N. B. 26 Hughes v. Sayer (1718), 1 P. 369; Barnes v. Marshall (1894), 102 Wms. 534; Holmes v. Williams (1791), Mich. 248, 60 N. W. 468; Robinson v. 1 Root (Conn.) 335, 1 Am. Dec. 49; Finch (1898), 116 Mich. 180, 74 N. W. Glover v. Condell (1896), 163 111. 566, 472; Mansfield v. Shelton (1896), 67 45 N. E. 178, 35 L. R. A. 360. Conn. 890, 35 Atl. 271, 52 Am. St 369 QUANTITY OB DURATION OF THE ESTATE. § 539 Therefore, a fee in land would pass at common law by a devise to a man forever, or in fee simple, or to him and his assigns forever, 27 or requiring the devisee to pay debts or legacies, 28 or with limitation over in case of death without issue, or on some other contingency, 29 or by a devise to executors to sell, 30 or of my estate, 31 all my . temporal estate, 32 the rest of my estate, 33 my estate real and personal, 34 my estate called Islington, 35 etc. "All I am worth or may own, all my right, all my title, or all I shall be possessed of, and many other expressions of 27 2 Bl. Com. 108. 28 Jackson v. Merrill (1810), 6 Johns. (N. Y.) 185, 5 Am. Dec. 213; Bell v. Scammon (1844), 15 N. Hamp. 381, 41 Am. Dec. 706 ; Korf v. Gerichs (1896), 145 Ind. 134, 44 N. B. 24; Donohue v. Donohue (1894), 54 Kan. 136, 37 Pac. 998 ; Lindsay t. McCor- mack (1820), 2 A. K. Marsh. (9 Ky.) 229, 12 Am. Dec. 387 ; Heard v. Horton (1845), 1 Denio (N. Y.) 165, 43 Am. Dec. 659; Fuller v. Fuller (1892), 84 Me. 475, 24 Atl. 946; Wait v. Belding (1837), 24 Pick. (41 Mass.) 129, 139; Groves v. Cox (1878), 40 N. J. L. 40; Ackland v. Ackland (1713), 2 Vern. 687; Abrams v. Winshup (1827), 3 Russell (3 Bng. Ch.) 350; Blinston v. Warhurton (1856), 2 Kay & J. 400, 25 L. J. Ch. 468, 2 Jur. n. s. 858. Devise Subject to Charge Distin- guished. But a fee would not pass by a devise paying out of the land a certain sum, for the devisee is not made personally liable. Jackson v. Bull (1813), 10 Johns. (N. Y.) 148, 6 Am. Dec. 321, and cases cited ; Hawker v. Buckland (1689), 2 Vern. 106; Mer- son v. Blackmore (1742), 2 Atk. 341. Express Limitation. Nor when the gift is expressly limited to a life es- tate. Henry v. Pittsburgh C. M. Co. (1897), 80 Fed. 485, 25 C C A. 581. Gift Over. Nor when an estate is limited over. Brooks v. Kip (1896), 54 N. J. Eq. 462, 35 Atl. 658; Groves v. Cox (1878), 40 N. J. L. 40; Forest Oil Co. v. Crawford (1896), 77 Fed. 106, 23 C. C. A. 55, "to my son Matthew and to his children." 29 Harrison, In re (1870), 5 Ch. Ap. 408, 23 L. T. 654, 39 L. J. Ch. 501, 18 W. K. 795 ; Thompson, to Cnrzon, In re (1885), 52 L. T. 498; Andrew v. 24 Andrew (1876), 1 Ch. D. 410, 45 L. J. Ch. 232, 34 L. T. 82, 24 W. R. 349. Burke v. Annis (1853), 11 Hare (45 Eng. Ch.) 232. Remainders — Presumed Fee. "Where land is devised to one for life, and over to another, especially a son, with- out words of limitation, or any fur- ther words to express his intent, such a devise over is construed to be a fee." Plimpton v. Plimpton (1853), 12 Cush. (66 Mass.) 458, 463; Simonds v. Si- monds (1897), 168 Mass. 144, 46 N. E. 421, 2 Pro. R. A. 174 ; Mills v. Frank- lin (1891), 128 Ind. 444, 28 N. E. 60; Boutelle v. City Sav. Bank (1892), 17 R. I. 781, 24 Atl. 838. See also: Robinson v. Finch (1898), 116 Mich. 180, 74 N. W. 472. 30 Ware v. Murph (1838), 1 Rice L. (S. Car.) 54, 33 Am. Dec. 97. 31 Jackson v. Merrill (1810), 6 Johns. (N. T.) 185, 5 Am. Dec. 213; Macaree v. Tall (1753), Ambl. 182. 32 Bradford v. Belfleld (1828), 2 Si- mons (2 Eng. Ch.) 264; Tanner v. Wise (1734), 3 P. Wms. 295, Cas. t. Talb. 284. 33 Murry v. Wise (1706), 2 Vern. 564 ; Backus v. Presbyterian Assn. (1893), 77 Md. 50, 25 Atl. 856. 34 Roberts v. Lewis (1894), 153 U. S. 367, 377 ; Godfrey v. Humphrey (1836), 18 Pick. (35 Mass.) 537, 29 Am. Dec. 621. 35 Lambert v. Paine (1805), 3 Cranch (7 U. S.) 97; Stewart v. Gar- nett (1830), 3 Simons (5 Eng. Ch.) 398. "My undivided half of the P mill and mill privileges," etc., was held to pass a fee in Waterman v. Greene (1880), 12 R. I. 483, citing many cases. § 540 WILLS. 370 like import will cany an estate of inheritance, if there is nothing in the other parts of the will to limit or control the operation of the words." 36 When the same words pass both real and personal property they will be con- strued to give the same estate in each. 37 A gift is not defeated by the fact that the words purport to pass a larger estate than the testator possessed. What he had passes. 38 But if the devise was to a man and his assigns, with- out annexing any words of perpetuity, and there was nothing in the context to show that a larger estate was intended, the common law rule was that the devisee took only a life estate. 39 §540. Devises Without Words of Perpetuity— Mod- ern Law. In several states the common law rule is con- firmed by the statutes, or left unchanged, and only a life estate passes unless an intention to pass a greater estate appears. 40 But in many of the states the statutes now provide that every devise shall be construed to pass all the estate in the land which the testator could devise at the time of his death, unless an intention to give a less estate appears from the will. 41 Under these statutes 86 4 Kent Com. 535 ; White v. White the extent of the estate devised was (1885), 52 Conn. 518; Mulvane v. held to pass a fee by the words "my Rude (1896), 146 Ind. 476, 45 N. E. plantation." Payton v. Smith (1828), 659; Dills v. Adams (1897, Ky.), 43 4 McCord 476, 17 Am. Dec. 758; Jen- S. W. 680. kins v. Clement (1824), 1 Harper Eq. 37 Mulvane v. Rude (1896), 146 Ind. 72, 14 Am. Dee. 698. See also: Doe d. 476, 45 N. H. 659, and cases cited; Hitch v. Patten (1889), 8 Houst. Giftord v. Choate (1868), 100 Mass. (Del.) 334, 16 Atl. 558, 2 L. R. A. 724. 343, 348; Taylor v. Lindsay (1884), 40 It is so in the following : White v. 14 R. I. 518. White (1885), 52 Conn. 518; Fenster- asCrosgrove v. Crosgrove (1897), 69 ma x eT T . Holman (1902), 158 Ind. 71, Conn. 416, 38 Atl. 219. 62 N. E. 699. Z 2 ^ C T^1\ nn ^ (.««> 9 41 Statutes Providing that Whole In Dodd v. Doe d. Dodd (1859), 2 Estate shaU pags Thg followlng cases illustrate the application of these statutes, and hold that the terms used Houst. (Del.) 76, the court held only a life estate to pass, though the will began, "touching all my worldly , , , . ,. things, I give and dispose of as fol- f' d no * f scloae an Nation *» give a lows." S. P. ; Wright v. Denn (1825), s estate - 10 Wheaton (U. S.) 204; Steele v. Alabama — Smith v. Phillips (1901), Thompson (1826), 14 S. & R. (Pa.) 131 AIa - 629 . 30 So. 872, '*for the use 84. But see strong dissenting opinion. of himself and children as a home." Contra: But In South Carolina a Georgia — Ford v. Gill (1900), 109 devise without anything to Indicate Ga. 691, 35 S. E. 156, providing for the 371 QUANTITY OR DURATION OF THE ESTATE. § 540 an intention to give a less estate has been held to be shown by a gift during widowhood, or while she remains my widow, which could in no event exceed a life estate. 42 A devise without words of limitation is confined to a life estate by a devise over on the death or marriage of the devisee, or the like. 43 The same has been held when appointment of a trustee during the life of the devisee. Illinois — McFarland v. MeFarland (1898), 177 111. 208, 52 N. E. 281, 4 Pro. E. A. 279, a devise without limita- tion unless the devisee desired to ter- minate it; Lambe v. Drayton (1899), 182 111. 110, 55 N. B. 189, a devise to M and her heirs followed by the limita- tion "her lifetime ;" Muhlke v. Tiede- mann (1899), 177 111. 606, 52 N. B. 843, "that she shall not mortgage or convey the same without the written consent of H." Iowa — Barrett's Will (1900), 111 Iowa 570, 82 N. W. 998, 5 Pro. K. A. 639, "to use, enjoy, and manage as she, in her judgment sees fit." Kansas — Boston S. D. & T. Co. v. Stich (1900), 61 Kan. 474, 59 Pac. 1082, a will drawn by a very illiterate man, in many parts contradictory, but containing the limitation "to have and to hold during her natural life." Maine — Fuller v. Fuller (1892), 84 Me. 475, 24 Atl. 946. Massachusetts — Simonds v. Slmonds (1897), 168 Mass. 144, 46 N. B. 421, 2 Pro. E. A. 174, construing require- ment to pay taxes, etc., to apply to an- other clause; Foster v. Smith (1892), 156 Mass. 379, 31 N. B. 291. Mississippi — Johnson v. Delome L. & P. Co. (1899), 77 Miss. 15, 26 So. 360. Missouri — Tocum v. Siler (1901), 160 Mo. 281, 61 S. W. 208, a gift over in case of death without issue. Kentucky — Clay v. Chenault (1900), 108 Ky. 77, 55 S. W. 729. New Jersey — Felt v. Eichard (1902), — N. J. Bq — , 53 Atl. 824, not re- duced to life estate by provision that devisee should not have power to sell nor his widow have dower. New York — Crain .v. Wright (1889), 114 N. T. 307, 21 N. E. 401, "for her benefit and support." North Carolina — Whitfield v. Garriss (1902), 131 N. Car. 148, 42 S. E. 568. Pennsylvania — J e r e m y ' s Estate (1896), 178 Pa. St. 477, 35 Atl. 847, "to be held in trust until both are of legal age." Rhode Island — Waterman v. Greene (1880), 12 E. I. 483. South Carolina — McAllister v. Tate (1858), 11 Eich. L. (S. Car.) 509, 73 Am. Dec. 119, "in fee simple for life." Texas — Dulln v. Moore (1902), — Tex. Civ. App. — , 69 S. W. 94, though a trustee was provided for during the lives of the devisees. Washington — Eeeves v. School Dlst. 59 of L. (1901), 24 Wash. 282, 64 Pac. 752, a gift over in case of death without issue. West Virginia — Morrison v. Clarks- burg C. & C. Co. (1903), 52 W. Va. 331, 43 S. E. 102; Smith v. Schlegel (1902), 51 W. Va. 245, 41 S. E. 161. 42Kratz V. Kratz (1901), 189 111. 276, 59 N. E. 519; Eose v. Hale (1900), 185 111. 378, 56 N. E. 1073, 5 Pro. E. A. 530; Shaw v. Shaw (1901), 115 Iowa, 193, 88 N. W. 327; Fuller v. Wilbur (1898), 170 Mass. 506, 49 N. E. 916 ; Dubois v. VanValen (1901), 61 N. J. Eq. 331, 48 Atl. 241; Brooks's Will (1899), 125 N. Car. 136, 34 S. B. 265; Cooper v. Pogue (1879), 92 Pa. St. 254. See also Collins v. Burge (1898, Ky.), 47 S. W. 444. 43 Griffiths v. Griffiths (1902), 198 111. 632, 64 N. E. 1069; Morrison v. Schorr (1902), 197 111. 554, 64 N. B. 545; Fenstermaker v. Holman (1902), 158 Ind. 71, 62 N. B. 699; Iimas v. Neidt (1897), 101 Iowa 348, 70 N. W. 203; Collins v. Burge (1898, Ky.), 47 S. W. 444; Smathers v. Moody (1893), 112 N. Car. 791, 17 S. E. 532; John- son v. Johnson (1894), 51 Ohio St. 446, 38 N. E. 61; Keniston's Will (1901), 73 Vt. 75, 50 Atl. 558, "what remains of the above ;" Jones v. Jones (1886), 66 Wis. 310, 28 N. W. 177. Contra: McNutt v. McComb (1899), 61 Kan. 25, 58 Pac. 965; and see Langman v. Marbe (1900), 156 Ind. 330, 58 N. B. 191. §541 WILLS. 372 a devise expressly in fee is followed by limitation over on the death of the first taker. 44 The statutes have no application to cases in which an intention in any way appears to give a less estate. 45 Whether these statutes have retrospective operation is not agreed. 46 B. Income, Use, Etc. § 541. Gifts of Income. 47 A bequest of the income of personalty without limit as to time, or gift over that can operate, is a bequest of the principal, if no different intention is expressed; 48 and if with words of limitation, then according thereto. 49 The rule applies whether the gift is direct or through trustees. 50 The same rule ap- plies to annuities. 51 Likewise, a devise of the rents, income, or profits of land is a devise of the land itself, for the value lies in the profits. 52 A gift of the rents and profits for life is a gift of the land for life, 53 and a gift of a portion of the 44 Coulter v. Shelmadine (1902), 204 Pa. St. 120, 53 Atl. 638, "to D, her heirs and assigns, for her sole use and benefit during her natural life, after her death the same to be divided," etc.; Trout v. Eominger (1901), 198 Pa. St. 91, 47 Atl. 960, is a very simi- lar case. 45 Nevins's Estate (1899), 192 Pa. St. 258, 43 Atl. 996; Call v. Shew- maker (1902, Ky.), 69 S. W. 749. 46 See Waterman v. Greene (1880), 12 R. I. 483, and cases there cited. See also ante § 399 et seq. 47 See notes 32 L. B. A. 755 ; 4 Pro. E. A. 265. 48 Ante § 530. 49 Brombacher v. Berklng (1897), 56 N. J. Eq. 251, 39 Atl. 134. bo Passman v. Guarantee T. and S. D. Co. (1898), 57 N. J. Bq. 273, 41 Atl. 953; Gulick v. Gulick (1874), 25 N. J. Bq. 324, on appeal 27 N. J. Eq. 498; Durfee v. Pomeroy (1898), 154 N. Y. 583, 49 N. B. 132 ; Earl v. Grim (1815), 1 Johns. Ch. 494; Elton v. Shephard (1781), 1 Brown Ch. 532. 61 Huston v. Read (1880), 32 N. J. Eq. 591, 596. 62 Devise of Profits is Devise of Laud. England — Kerry v. Derrick (1602), Cro. Jac. 104, a leading case ; Conyngham v. Conyngham (1750), 1 Ves. Sr. 522. Connecticut — Angus v. Noble (1900), 73 Conn. 56, 62, 46 Atl. 278, 5 Pro. R. A. 643. Illinois — Morrison v. Schorr (1902), 197 111. 554, 64 N. H. 545; Howe v. Hodge (1894), 152 111. 252, 270, 38 N. E. 1083. Maine — Sampson v. Randall (1881), 72 Me. 109. Massachusetts — Reed v. Reed (1812), 9 Mass. 372. New Jersey — D lament v. Lore (1865), 31 N. J. L. 220; Traphagen v. Levy (1889), 45 N. J. Eq. 448, 452, 18 Atl. 222. Pennsylvania — Curry v. Patterson (1897), 183 Pa. St. 238, 38 Atl. 594; Beilstein v. Beilstein (1899), 194 Pa. St. 152, 45 Atl. 73, 75 Am. St. Rep. 692. 68 Mather v. Mather (1882), 103 HI. 607; Sampson v. Randall (1881), 72 Me. 109 ; Brombacher v. Berking (1897), 56 N. J. Eq. 251, 39 Atl. 134; Monarque v. Monarque (1880), 80 N. T. 820; Davis v. Williams (1887), 85 Tenn. 646, 4 S. W. 8. 373 QUANTITY OE DTJEATION OF THE ESTATE. § 542 rents is a gift of a like portion of the land. The estate 54 taken in the land is only to the same extent that the rents are given. 55 Again, there may be an annuity given as a charge on land, not passing any interest in the land that can be sold. 56 § 542. Use and Occupation. A devise of the use and occupation of land passes an estate in the land itself cor- responding to the use, with the legal consequences, 57 that the devisee may sell it, 58 is liable for the taxes, 59 does not forfeit it by ceasing to occupy it, 1 and that it may be sold under legal process to pay his debts, though the will expressly provides that it shall not be so liable. 60 But where the devise is to a trustee to permit the ben- eficiary to occupy without rent it may appear that no estate is intended to be given more than a license of a personal use. 61 C. Devises Coupled with Powers. § 543. Effect of Estate with Power 64 — In General. An estate given to a person generally without words of limi- tation was held to be enlarged to a fee at common law by adding a power of disposal; 65 and such a power is often 54Bowen v. Swanders (1889), 121 son (1899), 56 S. Car. 346, 33 S. B. Ind. 164, 175, 22 N. E. 725. 749. 55 Morrison v. Schorr (1902), 197 64 The subject of this section is 111. 554, 64 N. E. 545 ; Durfee v. treated in an article by Prof. B. M. Pomeroy (1898), 154 N. Y. 583, 49 N. Thompson in 1 Mich. Law Eev. 427- E. 132. 443 ; and in notes 28 Am. Rep. 4 ; 2 66 As in Gillespie v. Boisseau (1901, Pro. E. A. 94, 501; 4 Pro. E. A. 121; Ky.), 64 S. W. 730. 10 L. E. A. 756, 1 Am. St. Rep. 361. 57 1 Bigelow's Jarman *741 ; Ne- 65 4 Kent Com. 535 ; Hamlin v. vins's Estate (1899), 192 Pa. St. 258, United States Express Co. (1883), 107 43 Atl. 996. 111. 443; Law v. Douglass (1899), 107 58 Wilson v. Curtis (1897), 90 Me. Iowa 606, 78 N. W. 212; Hammond v. 463, 38 Atl. 365; Talbott v. Hamill Croxton (1901), — Ind. App. — ,61 (1899), 151 Mo. 292, 52 S. W. 203. N. E. 596; Logan v. Sills (1902),' 28 69 Austin v. Hyndman (1899), 119 Ind. App. 170, 62 N. E. 459; Benesch Mich. 615, 78 N. W. 663. v. Clark (1878), 49 Md. 497, 504; l Talbott v. Hamill (1899), 151 Mo. Evans v. Folks (1896), 135 Mo. 397, 292, 52 S. W. 203. 37 S. W. 126; Dodson v. Sevars 60 Jones v. Jones (1899), 28 Misc. (1894), 52 N. J. Eq. 611, 30 Atl. 477; 421, 59 N. T. S. 974. McClellan v. Larchar (1889), 45 N. 61 License Without Gift. Le Breton J. Eq. 17, 16 Atl. 269 ; Hardaker's Es- V. Cook (1895), 107 Cal. 410, 40 Pac. tate (1902), 204 Pa. St. 181, 53 Atl. 552 ; Hadley v. Simmons (1901, N. J. 761. Ch.), 49 Atl. 816; Jackson v. Jack- §543 WILLS. 374 implied from the context without express gift; 66 and a power of disposal undefined means power to sell in fee. 67 But when the estate given is expressly or by clear impli- cation limited to a life estate, it should not be held to be enlarged to a fee, by reason merely of the fact that the devisee is also given an unrestricted beneficial power of disposal of the residue. 68 ee when Power to Dispose is Implied. "To have and to bold, and to dispose of as her own property as long as she shall live, and after her death to be equally divided," etc., was held to imply power to dispose as far as necessary for comfort. Martin v. Barnhlll (1900, Ky.), 56 S. W. 160. "To have and to hold at her free will and disposal during • • • life, • * • such portions as re- main" over, gave power to sell in fee. Sawin v. Cormier (1901), 179 Mass. 420, 60 N. E. 936, 6 Pro. E. A. 710. See also : Underwood v. Cave (1903), — Mo. — , 75 S. W. 451; Winchester v. Hoover (1902), 42 Ore. 310, 70 Pac. 1035; Mann v. Martin (1898), 172 111. 18, 49 N. E. 706; Kenlston's Will (1901), 73 Vt. 75, 50 Atl. 558; Rusk v. Zuck (1897), 147 Ind. 388, 46 N. E. 674, 2 Pro. E. A. 499; Saeger v. Bode (1899), 181 111. 514, 55 N. E. 129; Livingston v. Koenlg (1899), 20 Tex. Civ. App. 398, 50 S. W. 463; Gibony v. Hutcheson (1899), 20 Tex. Civ. App. 581, 50 S. W. 648. A power to dispose has been held implied by the words "to use, enjoy It, and manage It as long as she, In her judgment, sees fit." Barrett's Will (1900), 111 Iowa 570, 82 N. W. 998, 5 Pro. E. A. 639. But the contrary was held in another case though there was a gift over "at her death or mar- riage the remaining property." Russell v. Werntz (1898), 88 Md. 210, 44 Atl. 219. 67 Power to Sell Means to Sell in Fee. Roberts v. Lewis (1894), 153 U. S. 367; Podaril v. Clark (1902), — Iowa — , 91 N. W. 1091 ; Ashton v. Great Northern Ry. Co. (1899), 78 Minn. 201, 80 N. W. 963; Ernst v. Foster (1897), 58 Kan. 438, 49 Pac. 527; Yetzer v. Brisse (1899), 190 Pa. St. 346, 42 Atl. 677; Benninger v. Hennlnger (1902), 202 Pa. St. 207, 51 Atl. 749; Livingston v. Koenlg (1899), 20 Tex. Civ. App. 398, 50 S. W. 463; Rutter v. Ander- son (1900), 48 W. Va. 215, 36 S. E. 357. See also the cases cited In the last note above. Contra: Metzen v. Schopp (1903), 202 111. 275, 67 N. E. 36; Jones v. Jones (1886), 66 Wis. 310, 28 N. W. 177. Power to sell does not prima facie Include power to mortgage, no estate being given to the donee of the power. Parkhurst v. Trumbull (1902), — Mich. — , 90 N. W. 25, 7 Pro. R. A. 683, and extended note to last. 68 Life Estate not Enlarged. Connecticut — Mansfield v. Shelton (1896), 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285. Georgia — Wetter v. Walker (1878), 62 Ga. 142. Illinois— Klrkpatrick v. Kirkpatrick (1902), 197 111. 144, 64 N. E. 267; Ducker v. Burnham (1893), 146 III. 9, 34 N. E. 558, 37 Am. St. Rep. 135 ; Hamlin v. United States Express Co. (1883), 107 111. 443. Indiana — Wiley v. Gregory (1893), 135 Ind. 647, 35 N. E. 507; Rusk v. Zuck (1897), 147 Ind. 388, 46 N. E. 674, 2 Pro. R. A. 499. Iowa — Podaril v. Clark (1902), — Iowa — , 91 N. W. 1091; Spaan v. Anderson (1901), 115 Iowa 121, 88 N. W. 200. Kansas — Ernst v. Poster (1897), 58 Kan. 438, 49 Pac. 527. Kentucky — McCullough v. Ander- son (1890), 90 Ky. 126, 13 S. W. 353, 7 L. R. A. 836; Lee v. Fidelity T. & S. Co. (1900, Ky), 57 S. W. 239. Maryland — Benesch v. Clark (1878), 49 Md. 497. Massachusetts — Kent v. Morrison (1890), 153 Mass. 137, 26 N. E. 427, 10 L. R. A. 756; Collins v. Wlckwire (1894), 162 Mass. 143, 38 N. E. 365. 375 QUANTITY OB DURATION OF THE ESTATE. § 544 § 544. Same— Effect of Special Power. It is gener- ally agreed that a devise expressly limited to a life estate is not raised to a fee by merely giving the devisee a power of appointment of the reversion among a particular class, or for specified uses, 69 nor by a power to dispose of so much as may be necessary for the support or com- fort of the devisee. 70 § 545. Same— Some Hold General Power to Defeat Gift Over. But there are a great many cases in which a devise expressly limited to a life estate has been held to be raised to a fee merely by reason of a general power of disposal being also given to the devisee; so that the heirs of the testator took no reversion of property not dis- posed of under the power, 71 and an executory devise, Missouri — Evans v. Folks (1896), 135 Mo. 397, 37 S. W. 126. New Hampshire — Burleigh v. Clough (1872), 52 N. Hamp. 267, 13 Am. Rep. 23, a valuable case reviewing the prior decisions at length. New Jersey — Wooster v. Cooper (1895), 53 N. J. Eq. 682, 33 Atl. 1050; Cory v. Cory (1883), 37 N. J. Bq. 198. Rhode Island — Tilton's Petition (1899), 21 E. I. 426, 44 Atl. 223. Virginia — Honaker v. Duff (1903), Va. — , 44 S. E. 900, the power not being to dispose by will or deed, but only by one. Effect of Statutes as to Powers. As to how far this rule is affected by the statutes providing that gifts of absolute powers without trust shall be deemed to give abso- lute title see: Ashton v. Great North- ern Ry. Co. (1899), 78 Minn. 201, 80 N. W. 963 ; Hershey v. Meeker County Bank (1898), 71 Minn. 255, 73 N. W. 967; Moehring's Matter (1897), 154 N. T. 423, 48 N. E. 818. 69 Stumphenhousen's Estate (1899), 108 Iowa 555, 79 N. W. 376, 4 Pro. R. A. 709; Derse v. Derse (1899), 103 Wis. 113, 79 N. W. 44. When Remainder is to Heirs of Life Tenant. "When an estate for life only is given, followed by a general power of appointment, and on failure to ap- point, to children or special heirs, the power to appoint will not enlarge the estate of the cestue que trust to a fee » • * A limitation to heirs on fail- ure to appoint unquestionably enlarges a life estate to a fee." Dodson v. Ball (1869), 60 Pa. St. 492, 497. to Life Estate and Limited Power. Iowa — Baldwin v. Morford (1902), 117 Iowa 72, 90 N. W. 487. Maine — Nash v. Simpson (1866), 78 Me. 142, 147. Massachusetts — Morse v. Inhabi- tants of Natick (1900), 176 Mass. 510, 57 N. E. 996, 6 Pro. R. A. 47. Michigan — Gadd v. Stoner (1897), 113 Mich. 689, 71 N. W. 1111, 2 Pro. R. A. 90; Glover v. Reid (1890), 80 Mich. 228, 45 N. W. 91. New Jersey — Dubois v. VanValen (1901), 61 N. J. Eq. 331, 48 Atl. 241. Pennsylvania — Hinkle's Appeal (1887), 116 Pa. St. 490, 9 Atl. 938; Tetzer v. Brisse (1899), 190 Pa. St. 346, 42 Atl. 677; Hennlnger v. Hen- ninger (1902), 202 Pa. St. 207, 51 Atl. 749. Tennessee — Bradley v. Carnes (1894), 94 Tenn. 27, 27 S. W. 1007, 45 Am. St. Rep. 696. Virginia — Miller v. Potterfleld (1890), 86 Va. 876, 11 S. E. 486, 19 Am. St. Rep. 919. Wisconsin — Jones v. Jones (1886), 66 Wis. 310, 28 N. W. 177. The devisees over are entitled to land bought with the proceeds of land sold. Trout v. Romlnger (1901), 198 Pa. St 91, 47 Atl. 960. ti Enlarged by General Power. Hardaker's Estate (1902), 204 Pa. § 546 WILLS. 376 limited over on the death of the devisee, of so much as remained undisposed of under the power, has been held to be void. 72 § 546. The Above Decisions Disapproved. It is be- lieved that the decisions holding the executory devise over void in such cases are erroneous; and that they have been induced by failure to distinguish between a power, acquired by deed or will, to dispose of another man's property, and that power of disposal which is necessarily and inseparably incident to all ownership. 73 If you give a man property, the addition of a power to dispose of it is mere useless surplusage, and a provision forbidding disposal would be simply void as repugnant to the gift. Therefore, when a gift is made of the fee by express terms or by clear implication, as by gift without limita- tion and express general power of disposal, the courts have generally refused to infer an intention to restrict the gift by reason of the fact that another clause purports to give to another what remains undisposed of at the death of the devisee, and without such an implied restric- tion the gift over is clearly void. 74 But there are cases St. 181, 53 Atl. 761 ; Smith v. Power to sell and reinvest was held Schlegel (1902), 51 W. Va. 245, 41 S. not to raise an express life estate to E. 161; Englerth v. Rowland (1901), a fee. Young v. Ins. Co. (1898), 101 50 W. Va. 259 ; 40 S. E. 465, extended Tenn. 311, 47 S. W. 428. discussion obiter. 73 As to which see Burleigh v. See also opinion of Deemer and ciough (1872), 52 N. H. 267, 13 Am. Bishop, JJ., dissenting in Podaril v. R e p. 23. Clark (1902), — lowa — , 91 N. w. 74 plain Gift not Cut by Infer- 1091, citing many cases. ence. 72 Jackson v. Robins (1819), 16 Leading Case — Jackson v. Robins Johns. (N. T.) 537, 590, a leading (1819), 16 Johns. (N. Y.) 537, 583, case, inducing error in later cases; et seq t a leading and much cited case. Hood v. Bramlett (1894), 105 Ala. rr„,t*„j a*„*„. u ^. .. ,-i . „„„ „„ „ „„_ „ , _ . united States — Howard v. Carusi 660, 17 So. 105; Mulvane v. Rude , laai . 1nQ TT « - - (1896), 146 Ind. 477, 45 N. E. 659; (1884) ' 109 V ' S " 725 " McNutt v. McComb (1899), 61 Kan. Connecticut— Methodist Church v. 25, 58 Pac. 965; Combs v. Combs Harris (1892), 62 Conn. 93, 25 Atl. (1887), 67 Md. 11, 8 Atl. 757, 1 Am. 456 - St Rep. 359; Hair v. Caldwell (1902), Illinois— Dalrymple v. Leach (1901), — Tenn. — , 70 S. W. 611 ; Bradley T. 192 I1L B1 - 61 N - B - 443 • Lambe v . Carnes (1894), 94 Tenn. 27, 27 S. W. Drayton (1899), 182 111. 110, 55 N. E. 1007, 45 Am. St. Rep. 696; Bowen v. 189 '• Wolfer v. Hemmer (1893), 144 Bowen (1891), 87 Va. 438, 12 S. E. in - 554 > 33 N - E - 751 - 885, 24 Am. St. Rep. 664. See also Indiana — Sills v. Logan (1902), 28 Roberts v. Lewis (1893), 153 TJ. S. Ind. App. 170, 62 N. E. 459; Mulvane 367, discussing but not deciding the v. Rude (1896), 146 Ind. 477, 45 N. E. question. 659, citing many cases ; BenninghofC 377 QUANTITY OE DTJKATION OF THE ESTATE. § 547 in which the clause providing for the disposition of what remains after the death of the devisee has heen found to indicate an intention to restrict the preceeding gift, though given in terms as a fee, 75 or without limitation. 76 § 547. Base Fee with General Power. 77 Is a devise of a limited fee (e. g., to A and his heirs, provided that if A leaves no issue him surviving, then to B and his heirs) enlarged to a fee simple absolute by reason of the will giving the first devisee also a general power of dis- posal? We have seen that it is generally agreed that a devise of a life estate is not enlarged by reason of the gift of such a power to the devisee. Why should a dif- ferent rule be applied to this case? No reason is any- where given for any distinction. It is believed that no distinction should be made. 78 Yet it has been held in a v. Evangelical A. C. C. (1901), 28 Ind. App. 374, 61 N. E. 952. Iowa — Law v. Douglass (1899), 107 Iowa 606, 78 N. W. 212, Granger and Givern, JJ., dissenting. Maine — Jones v. Bacon (1877), 68 Me. 34, 28 Am. Rep. 1 ; Combs v. Combs (1887), 67 Md. 11, 8 Atl. 757, 1 Am. St. Rep. 359. Massachusetts — Joslin v. Rhoades (1889), 150 Mass. 301, 23 N. E. 42; Kelley v. Meins (1883), 135 Mass. 231; Gifford v. Choate (1868), 100 Mass. 343, a carefully stated opinion. Hew Jersey — McLellan v. Larchar (1889), 45 N. J. Eq. 17, 16 Atl. 269. New York — Trask v, Sturges (1902), 170 N. Y. 482, 63 N. E. 534; Banzer v. Banzer (1898), 156 N. Y. 429, 51 N. E. 291, 4 Pro. R. A. 116. Pennsylvania — Evans v. Smith (1895), 166 Pa. St. 625, 31 Atl. 346; Good v. Fichthorn (1891), 144 Pa. St. 287, 22 Atl. 1032. Vermont — Judevine v. Judevlne (1889), 61 Vt. 587, 18 Atl. 778, 7 L. R. A. 517. Virginia — Hall v. Palmer (1891), 87 Va. 354, 12 S. E. 618, 24 Am. St. Rep. 653. West Virginia — Smith v. Schlegel (1902), 51 W. Va. 245, 41 S. H. 161. England — Jones, In re (1898), 1 Ch. D. 438, 67 L. J. Ch. 211, 78 L. T. 74, 46 W. R. 313. tb Smith v. Bell (1832), 6 Peters (31 U. S.) 68; Chase v. Ladd (1891), 153 Mass. 126, 26 N. E. 429 ; Robinson v. Finch (1898), 116 Mich. 180, 74 N. W. 472; Barnes v. Marshall (1894), 102 Mich. 248, 60 N. W. 468; John- son v. Johnson (1894), 51 Ohio St. 446, 38 N. E. 61 ; Taylor v. Martin (1887, Pa.), 8 Atl. 920. 76 Adams v. Lillibridge (1901), 73 Conn. 655, 49 Atl. 21; Mansfleld v. Shelton (1896), 67 Conn. 390, 35 Atl. 271, 52 Am. St. Rep. 285 ; Fenster- maker v. Holman (1902), 158 Ind. 71, 61 N. E. 599 ; Hamlin v. United States Express Co. (1883), 107 111. 443; Un- derwood v. Cave (1903), — Mo. — , 75 S. W. 451; Tilton's Petition (1899), 21 R. I. 426, 44 Atl. 223; Jones v. Jones (1886), 66 Wis. 310, 28 N. W. 177. 77 The subject of this section Is fully discussed and the decisions re- viewed at length in the several opin- ions In Van Home v. Campbell (1885), 100 N. Y. 287, partially reported In 53 Am. Rep. 166; and in Clay v. Chenault (1900), 108 Ky. 77, 55 S. W. 729. See also Gray's Restraints on Alienation §| 66-74g; an article by Prof. B. M. Thompson In 1 Mich. Law Rev. 428; and article in 32 Am. L. Reg. (n. s.) 1035. 78 This is the opinion expressed by Prof. Gray in Gray's Restraints on Alienation §§ 74c, 74d ; by Prof. Thompson In 1 Mich. Law Rev. 428 §548 WILLS. 378 number of courts that a gift of a fee in land with un- restricted beneficial power of alienation cannot be cut down by any executory devise over, no matter how clearly the testator's intention to restrict it may appear —that the first devisee has an absolute fee, though the power is not exercised, and that the devise over is there- fore void. 79 But even the courts that hold such gifts over void declare them good and sustain them if the first gift lapses by death of the donee before the testator. 80 § 548. Foundation of the Rule Above Stated. The rule established by these decisions is not to effect the testator's intention, but always to defeat it; nor is it based on any matter of public policy, for it is generally admitted that the same result can be accomplished by expressly limiting the devise to a life estate and giving an unlimited beneficial power of disposal. Three reasons for the rule have been given: 1, that the gift over is et seq. ; Mr. Brooks in an article in 32 Am. L. Beg. (n. s.) 1035, 1044; and sustained by the following cases : Bobinson v. Finch (1898), 116 Mich. 180, 74 N. W. 472 ; Hubbard v. Eaw- son (1855), 4 Gray (70 Mass.) 242; Andrews v. Eoye (I860), 12 Bich. L. (S. Car.) 536, examining the previous decisions to the contrary to expose the fallacies ; Doe d. Stevenson v. Glover (1845), 1 C. B. (50 H. C. L.) 448; and see Barstow v. Black (1868), L. B. 1 Scotch & Divorce App. in H. L. 392. 79 This Doctrine Originated, it is be- lieved, with Parsons, C. J., in Ide v. Ide (1809), 5 Mass. 500; soon rein- forced by Ch. Kent and the New York courts, first in Jackson d. Brewster v. Bull (1813), 10 Johns. 19; followed by a long line of cases ending with and reviewed seriatim in Van Home v. Campbell (1885), 100 N. T. 287, 3 N. E. 316, 771, partially reported in 53 Am. Rep. 166. To the same effect see also : Illinois — Wolfer v. Hemmer (1893), 144 111. 554, 33 N. B. 751. Iowa — Channell v. Aldinger (1903), —Iowa—, 96 N. W. 781. Kentucky — Clay v. Chenault (1900), 108 Ky. 77, 55 S. W. 729, and many cases reviewed. Maine — Ramsdell v. B a m s d e 1 1 (1842), 21 Me. 288. Massachusetts — Collins v. Wickwire (1894), 162 Mass. 143, 38 N. E. 365; Joslin v. Bhoades (1889), 150 Mass. 301, 23 N. E. 42; Kelley v. Meins (1883), 135 Mass. 231. Mart/land — Combs v. Combs (1887), 67 Md. 11, 8 Atl. 757. In Backus v. Presbyterian Assn. (1893), 77 Md. 50, 25 Atl. 856, a gift without limitation was held a defeasible fee by a gift over if any should die without issue and leave no will. Missouri — Wead v. Gray (1883), 78 Mo. 59. Neie Jersey — Armstrong v. Kent (1848), 21 N. J. L. (1 Zabr.) 509; Den v. Gibbons (1849), 22 N. J. L. 117, 154. Pennsylvania — Fisher v. Wister (1893), 154 Pa. St. 65, 25 Atl. 1009, reviewed in 32 Am. L. Reg. (n. s.) 1035; Glllmer v. Daix (1891), 141 Pa. St. 505, 21 Atl. 659. soBurbank v. Whitney (1839), 24 Pick. (41 Mass.) 146, 35 Am. Dec. 812; Eaton v. Straw (1846), 18 N. Hamp. 320, 333; Crozier v. Bray (1886), 39 Hun (N. Y.) 121; String- er's Estate (1877), 6 Ch. D. 1, 46 L. J. Ch. 633, 37 L. T. 233, 25 W. B. 810 — C. A. But see Mills v. Newberry (1885), 112 111. 123, 54 Am. Bep. 213. 379 QUANTITY OE DURATION OF THE ESTATE. § 549 repugnant; 2, that descent to the heirs of the devisee of the fee is a necessary incident of his estate, the law of descent never yielding to any man's will; and, 3, that the gift over is not good as an executory devise, because a valid executory devise cannot be defeated by any act of the first taker. 81 The last is the reason most frequently given, and originated with Chancelor Kent, 82 citing Pells v. Brown (1619), 83 in which it was first settled that no common recovery or other act of the first tenant, to which the devisee over was not a party, would bind him. Thus was a rule promulgated to save devises over so distorted as to defeat them. The first two reasons simply assume the very matter in question. D. The Rule in Shelley's Case. § 549.. The Rule in Shelley's Case 84 — Gifts to One and His Heirs. Men have always striven for the greatest freedom for their own wills and to force their wishes on their successors as far as possible; and there is not the least doubt that when lands were first given to a man and his heirs the giver did not intend to give the person named power to dispose of the fee, but supposed he had given him only the use during life and had pointed out the succession to his heirs so that it could not be diverted. However, the courts always favored the unfettering of estates and freedom of alienation; and it was very soon held that the person named had the whole estate, with power to cut off his heirs by surrender, lease, or other disposal of his interest. The word heirs therefore has ever since been the most fit and appropriate word to mark the duration of the estate given as perpetual. § 550. Gifts Expressly for Life. Attempts to avoid this result were first made by limiting the estate to the man named on condition that he have heirs of his body; which were abortive, because the courts held that he 81 Gray's Restraints on Alienation 88 Cro. Jac. 590, 1 Salk. 299. 5 74c. 8 * See notes 11 Am. St. Eep. 99 et 82 In Jackson v. Bull (1813), 10 seq. ; 1 Pro. R. A. 410. Johns. 19, 21. § 551 WILLS. 380 could sell free from the condition as soon as he had chil- dren born, though they died before him. 85 This re- sulted in the passage of the statute De Donis, 86 of which more may be said later. Then attempts were made to accomplish the same result by limiting the estate to the person named for life, with remainder to his heirs. But these attempts were defeated as early as 1325 A. D., by the courts holding that when an estate is given to a man, with remainder in the same gift to his heirs, he takes the whole fee, the limitation to his heirs by way of remainder having the effect merely of showing that the gift to him is a fee. 87 The rule thus early established came after- ward to be known as the rule in Shelley's Case (1581), by reason of great arguments made on it in that case. 88 The leading English case on the subject is Perrin v. Blake (1771). 89 The rule applies to limitations by deed or will, as will be seen by any of the cases cited below. §551. American Law. The rule in Shelley's Case is clearly a part of the American law wherever it has not 85 2 Bl. Com. 110. the father, had on the day of ac- 86 13 Ed. I, c. 1 (1285 A. D.). knowledging the statute. The sheriff 87 Origin of Rule. The case re- returns that he had delivered to other ferred to is reported in Yearbooks 18 creditors upon recognizances all the Ed. II, fol. 577, stated in Fitzherbert's lands which John Abel had in fee, Abridgment, tit. Feoffment pi. 109, except the manor of Fortesgray, in and given by Justice Blackstone in his which he had only an estate for term opinion in Perrin v. Blake (1771), of life. Upon this return it was ar- Hargrave's Law Tracts 489, 10 Eng.. gued, that John the father had only Enl. Cas. 689, Thompson's Cases 1 ; the freehold for term of life, the fee and is as follows : "John Abel, having simple being limited to his heirs, who two sons, Walter and John, purchased therefore took by purchase and not by a manor in Fortesgray in Kent ; to descent. But the court held the con- hold to himself and Matilda his wife, trary ; for which this reason (among and Walter Abel, his eldest son, and others) is given by Stoner, J., viz., to the heirs of the body of Walter because otherwise the fee and the begotten; and if Walter died without right after the death of Walter, the heir of his body, the manor would re- eldest son, would have been in nobody, main to the right heirs of John the And therefore, Beresford, C. J., gave father. Matilda the wife, died; and the rule, that execution should be Walter, the son, also died without heir awarded upon this manor of Fortes- of his body. John, the father, became gray." The reader is also referred to bound in a statute merchant to pay n number of old cases cited in Coke on £100 to B at a day certain ; and died, Littleton 376b, margin to § 719. leaving his younger son John his heir. 88 Shelley's Case (1581), 1 Coke 94b. After the day of payment was lapsed, 89 Hargrave's Law Tracts 489, 10 the creditor sued out a writ to the Eng. Eul. Cas. 689, Thompson's sheriff of Kent, to extend and deliver Cases 1. to him all the lands which John Abel, 381 QUANTITY OR DURATION OF THE ESTATE. § 552 been abolished. It still prevails in a number of the states, among which are those from which the ruling cases be- low are cited. 90 But it has been quite generally abol- ished, so that if an intention appears that the persons designated as heirs of the first taker are to take as pur- chasers they will so take, and the first taker cannot de- feat the remainder to them by any act of his own. 91 E. The Rule in Wild's Case. § 552. Rule in Wild's Case— When There Are No Children. When the testator gives property to A and his children, he may mean any one of three dispositions, viz: 1. That A should have the whole property, the addition being merely to show the duration of A's es- »« The Rule Still Governs In— Arkansas — Hardage v. Stroope (1893), 58 Ark. 303, 24 S. W. 490, Pattee's Cases Real p. 440. District of Columbia — DeVaugbn v. Hutchinson (1896), 165 U. S. 566, 17 S. Ct 461. Illinois — Carpenter v. VanOlinder (1889), 127 111. 42, 19 N. B. 868, 11 Am. St. Rep. 92, and see note to last, 2 L. R. A. 455. Indiana — Mcllhlnny v. Mcllhinny (1894), 137 Ind. 411, 37 N. E. 147, 45 Am. St. Rep. 186, 24 L. R. A. 489; Granger v. Granger (1896), 147 Ind. 95, 44 N. B. 189, 46 N. E. 80, 36 L. R. A. 186; Bonner v. Bonner (1902), 28 Ind. App. 147, 62 N. E. 497. Iowa — Westcott v. Binford (1898), 104 Iowa 645, 74 N. W. 18, 65 Am. St. Rep. 530. Maryland — Mercer v. Hopkins (1898), 88 Md. 292, 41 Atl. 156. North Carolina — Leathers v. Gray (1888), 101 N. Car. 162, 7 S. E. 657, 9 Am. St. Rep. 30, and note to the last; Starnes v. Hill (1893), 112 N. Car. 1, 16 S. E. 1011, 22 L. R. A. 598. Pennsylvania — McCann v. McCann (1901), 197 Pa. St. 452, 47 Atl. 743, 80 Am. St. Rep. 846 ; Relmer v. Relmer (1899), 192 Pa. St. 571, 44 Atl. 316, 73 Am. St. 833 ; Stigers v. Dlnsmore (1899), 193 Pa. St. 482, 44 Atl. 550, 74 Am. St. 702. Rhode Island — McNeal v. Sherwood (1902), — R. I. — , 53 Atl. 43; Alver- son v. Randall (1880), 13 R. I. 71, Thompson's Cases 32. South Carolina — Boykln v. Ancrum (1887), 28 S. Car. 486, 6 S. B. 305, 13 Am. St. Rep. 698. Texas — Simon ton v. White (1899), 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824; Brown v. Bryant (1897), 17 Tex. Civ. App. 454, 44 S. W. 399. The above is not claimed to be a complete list of the states where the rule prevails; but the cases above are selected with a view to illustrating the greatest number of phases of the rule by the best considered late cases from as many different states as de- cisions were found in. »i Rule Abolished. See following cases decided under such statutes : Alabama — Watson v. Williamson (1901), 129 Ala. 362, 30 So. 281; Wilson v. Alston (1898), 122 Ala. 630, 25 So. 225. Georgia— Wilkerson v. Clark (1888), 80 Ga. 367, 7 S. E. 319, 12 Am. St. Rep. 258. Michigan — Defreese v. Lake (1896), 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744. Missouri — Godman v. Simmons (1892), 113 Mo. 122, 20 S. W. 972, Tied. R. P. Cas. 361. Rhode Island — Tillinghast, In re (1903), — R. I. — , 55 Atl. 879. New York— Moore v. Littel (1869), 41 N. Y. 66. 553 WILLS. 382 tate; 2, to give to A for life, remainder to his children; or, 3, to give to A and his children jointly or in common. It has been settled since the time of "Wild's Case (1599) 92 that the first is the construction to be given if no chil- dren were in being by the time A's estate came to posses- sion. His estate would be absolute in the personalty; 93 and at the common law he would have an estate tail in the land, which most statutes have converted into a fee simple; and which in any event would not be divested by the birth of a child afterward. 94 And where the statutes have converted estates tail into a life estate in the first taker and remainder to his children in fee simple, still it is held that a gift to one and his children gives him a fee simple if he had no children at the time of the testa- tor's death. 95 § 553. Same— A Word of Purchase if There Were 82 6 Coke 17a. 93 Jones v. Jones (1861), 13 N. J. Eq. 236. 94Loftln v. Murchison (1888), 80 Ga. 391, 7 S. E. 322; Butler v. Rals- ton (1882), 69 Ga. 485; Moore v. Gary (1897), 149 Ind. 51, 48 N. E. 630; Nightingale v. Burrell (1833), 15 Pick. (30 Mass.) 104 ; Silliman v. Whitaker (1896), 119 N. Car. 89, 25 S. E. 742 ; Haldeman v. Haldeman (1861), 40 Pa. St. 29; Oyster v. Orris (1899), 191 Pa. St. 606, 43 Atl. 411; Clifford v. Koe (1880), 5 App. Cas. 447, 43 L. T. 322, 28 W. R. 633 — H. L. Rothwell v. Jamison (1899), 147 Mo. 601, 49 S. W. 503. In one Kentucky case the court held that the first taker had only a life estate though there were no children born till afterward. Carr v. Estill (1855), 16 B. Mon. (55 Ky.) 309, 63 Am. Dec. 548. Same effect : Bain v. Lescher (1840), 11 Sim. (34 Eng. Ch.) 397. But in the later cases that court has gone quite as far as any other in holding the estate of the first taker to he a fee. See Williams v. Duncan (1891), 92 Ky. 125, 17 S. W. 330; Hood v. Dawson (1895), 98 Ky. 285, 33 S. W. 75. A gift "for the benefit of Matilda and Joseph, for them and their chil- dren, should they have any," was held to give only a life estate to M. and J., entitling J.'s children to recover from his grantee. Barclay v. Piatt (1897), 170 111. 384, 48 N. E. 972. In Sumpter v. Carter (1902), 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274, an Intention that the children should take as purchasers was found, so that the children born after the testator died, and while the life tenant lived, took, though their mother had given a deed of the fee. 85 "It will be seen that the decision in Wild's Case was controlled by the rules of the common law in regard to life estates, and in the case first put, the judges enlarged what would be only a life estate at common law Into an estate tall by construction. Un- der the common law the courts re- sorted to construction to give as large an estate as possible. Words of in- heritance are not now necessary In this state to carry a fee. • * • The rule announced in Wild's Case was made to give a larger estate than a life estate by giving a fee tail. But our statute gives a fee simple where the common law gave only a life es- tate, and the rule in Wild's Case is no longer necessary, for It would cut down the estate, and not enlarge it as It was Intended to do." Davis v. Rip- ley (1902), 194 III. 399, 62 N. E. 852. 383 QUANTITY OB DURATION OF THE ESTATE. 554 Children. But it was also settled that the addition could not be treated as words of limitation if there were chil- dren or a child in being to take. The children or child would then take by purchase, 98 unless there is something else in the will to show that the testator intended the first taker to have a fee. 97 §554. Same— Whether Parent and Children Take Concurrently or Successively. If it be settled that he in- tended the children to take as purchasers, it may be that A was to have the estate for life and the children to take only in remainder; 98 in which case all the children of A at any time born would take. 99 98 Wild's Case (1599), 6 Coke 17a; Forest Oil Co. v. Crawford (1896), 77 Fed. 106, 23 C. C. A. 55 ; Biggs v. Mc- carty (1882), 86 Ind. 352, 44 Am. Eep. 320; Amiable v. Patch (1825), 3 Pick. (20 Mass.) 360; Gordon v. Jackson (1899), 58 N. J. Eq. 166, 43 Atl. 98; Moore v. Leach (1857), 5 Jones L. (50 N. Car.) 88; Fitzpatrick v. Fitzpatrick (1902), 100 Va. 552, 42 S. E. 306. If Only One Child. Oates d. Hat- terley v. Jackson (1743), 2 Strange 1172, settled that the rule applies though there is only one child. None Bom When Will Was Made. In Buffar v. Bradford (1741), 2 Atkins 220, the child was held to take as a purchaser though not horn till after the will was made, there being no child then born, and the devise did not lapse by the death of the mother before the testator. The child took all. 9TAs in: Hood v. Dawson (1895), 98 Ky. 285, 33 S. W. 75; Childers v. Logan (1901, Ky.), 65 S. W. 124, 23 Ky. L. K. 1239 ; Jones v. Jones (1861), 13 N. J. Eq. 236 ; Houck v. Patterson (1900), 126 N. Car. 885, 36 S. E. 198; Byng v. Byng (1862), 10 H. L. Cas. 171, 31 L. J. Ch. 470, 7 L. T. 1, 10 W. R. 633, affirming same case (1856), 2 Kay & J. 669, 8 DeG. M. & G. (57 Eng. Ch.) 633. Illustrations. Such an intention was found in a devise to "sister and at her death to her children or other lineal descendants." Mason v. Ammon (1887), 117 Pa. St. 127, 11 Atl. 449. Such an Intention was found from limiting an estate over in case of death without children, inasmuch as a Joint estate to her and her chil- dren would be only for their joint lives. Wheatland v. Dodge (1845), 10 Mete. (51 Mass.) 502. Such an intention was found from a direction to trustees to pay over the trust fund at the expiration of ten years to J and B, "free and discharged from all trusts, to them and to their children, after their death, the chil- dren to take among them equally the share of their father ;" which was construed to mean to pay to the chil- dren if the parent was dead at the time of payment. Bentz v. Maryland B. S. (1897), 86 Md. 102, 37 Atl. 708. 98 As was held in Schaefer v. Schaefer (1892), 141 111. 337, 31 N. E. 136; Hatfield v. Sohier (1873), 114 Mass. 48; Kuhn v. Kuhn (1902, Ky.), 68 S. W. 16; Adams v. Adams (1898, Ky.), 47 S. W. 335; Hague v. Hague (1894), 161 Pa. St. 643, 29 Atl. 261, following the leading case of Coursay V. Davis (1863), 46 Pa. St. 25; Forest Oil Co. v. Crawford (1896), 77 Fed. 106, 23 C. C. A. 55, followed in Forest Oil Co. v. Erskine (1897), 83 Fed. 109 27 C. C. A. 410. "To my son Robert's children, he and them enjoying it while he lives," was held to give him a life estate, remainder to all the children. Haskins v. Tate (1855), 25 Pa. St. 249; Noe v. Miller (1879), 31 N. J. Eq. 234. This is said to be a favorite con- struction in cases of gifts to the tea- §555 WILLS. 384 Or it may be that the testator intended A and his children to take together, the usual construction when the children take, in which case they would be joint ten- ants at common law, tenants in common under most stat- utes, each child having as large a share as the parent. 1 If A and his children take together jointly or in common, children born between the making of the will and the coming to possession of the estate are included, though born after the death of the testator, 2 and children born afterwards are excluded. 3 § 555. Same— A Gift to One for Life Remainder to His Children. But the word children is more appropri- tator's wife and her children. Hood v. Dawson (1895), 98 Ky. 285, 293, 33 S. W. 75. The reason given Is that it cannot be supposed that the testator intended any of the property to go to strangers to his blood, as it might if she had part of the fee. But if this be made the rule most of the property may be taken by her children of a later marriage. Did the testator In- tend that? In another case a devise to a son (a widower with children), "in trust for the use of himself and children and wife in case he may hereafter marry," was held to give the second wife no part of the fee, but only sup- port with the children during life, re- mainder in the whole to the children. Jackson v. Jackson (1900, Ky.), "not to be officially reported," 58 S. W. 423, 597, two judges dissenting. 99 See cases cited in last note above. See also Butter v. Ommaney (1842), 4 Rus. Ch. (4 Eng. Ch.) 70; Lynn v. Hall (1897), 101 Ky. 738, 43 S. W. 402, 72 Am. St. Rep. 439; Middleton v. Middleton (1897, Ky.), 43 S. W. 677; Hague v. Hague (1894), 161 Pa. St. 643, 29 Atl. 261, following the leading case of Coursay v. Davis (1863), 46 Pa. St. 25; Forest Oil Co. v. Crawford (1896), 77 Fed. 106, 23 C. C. A. 55. l Joint Tenants at common law : Oates v. Jackson (1743), 2 Strange 1172; Jackson v. Coggin (1859), 29 Ga. 403. Tenants in Common by statute : Hunt v. Satterwhlte (1881), 85 N. Car. 73; Annable v. Patch (1825), 3 Pick. (20 Mass.) 360; Gordon v. Jack- son (1899), 58 N. J. Eg.. 166, 43 Atl. 98. So held of gift to A and his wife and children. Hampton v. Wheeler (1888), 99 N. Car. 222, 6 S. B. 236. 2 Mitchell v. Mitchell (1900), 73 Conn. 303, 307, 47 Atl. 325 ; Sumpter v. Carter (1902), 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274 ; Biggs v. Mc- carty (1882), 86 Ind. 352, 44 Am. Rep. 320. 3 Biggs v. McCarty, above. Contra: Smith v. Smith (1901), 108 Tenn. -21, 64 S. W. 483; Good- ridge v. Schaefer (1902), — Ky. — , 68 S. W. 411, 24 Ky. L. R. 219. A gift to "H and family Jointly" was held to include H and his wife and children at the death of the tes- tator, excluding afterborn children. Langmaid v. Hurd (1888), 64 N Hamp. 526, 15 Atl. 136. To the same effect; Crosgrove v. Crosgrove (1897), 69 Conn. 416, 422, 38 Atl. 219. A devise to trustees for the support of testator's son "J or his family" with power at the discretion of the trustees to convey to "J, his heirs or assigns," was held to include the second wife of J and all the children. Smith v. Greeley (1892), 67 N. Hamp. 377, 30 Atl. 413. An intention to include afterborn children is found on very slight indi- cations in some cases, as in Milliken v. Houghton (1908), 97 Me. 447, 54 Atl. 1075. 385 QUANTITY OR DURATION OF THE ESTATE. § "556 ate as a word of purchase than as a word of limitation; and therefore, if an estate is given to one expressly for life, with "remainder to his children" the rule in Wild's case has no application. The person named in such a gift takes only a life estate, and his children take the re- mainder as purchasers, 4 though he may have none till after the death of the testator; 5 and in case of death without ever having children the devise is not thereby increased to a fee, but the fee lapses, 6 or goes over under the other provisions of the will. 7 F. "Issue" as a Word of Limitation. § 556. To A and his Issue. With regard to a gift sim- ply to one and his issue, no doubt can at this day exist, that it gives the person named the property absolutely if it is personalty, 8 and an estate tail if it is realty, 9 except where estates tail have been abolished, in which case he would take whatever estate the statute substitutes for the estate taken at the common law by the tenant in tail, 4 Crawford v. Clark (1900), 110 Ga. issue," then over, held to give J an 729, 36 S. E. 404, 6 Pro. R. A. 15 ; estate tail. Brown v. Brown (1895), 97 Ga. 531, In Hockley v. Mawbey (1790), 1 25 S. B. 353, 33 L. E. A. 816 ; Crandall Ves. Jr. 143, 149, Lord Thurlow said, v. Barker (1898), 8 N. Dak. 263, 78 "The limitation to the son and his N. W. 347; Guthrie's Appeal (1860), issue would be an estate tail; and 37 Pa. St. 9, and Chew's Appeal, same perhaps the aptest way of designating 23, leading cases in the state ; Lewis an estate tail according to the stat- v. Bryee (1898), 187 Pa. St. 362, 41 ute." Atl. 275; Oyster v. Knull (1890), 137 "The word 'issue' is well adapted for Pa. St. 448, 20 Atl. 624, 21 Am. St. a word of limitation, having much Rep. 890; Dodson v. Ball (1869), 60 more aptitude for such an use than it Pa. St. 492, 497. has to designate the objects of a gift. 5 See cases above cited. In signification It very nearly resem- e Lancaster v. Flowers (1901), 198 bles the technical phrase 'heirs of the Pa. St. 614, 48 Atl. 896 ; Morris v. body,' and Indeed the two are used as Eddins (1898), 18 Tex. Civ. App. 38, synonyms in the statute De Donts. 44 S. W. 203; Moon v. Stone (1869), Hence it has been settled that when 19 Gratt. (Va.) 130, 326, containing rea i estate is devised by one or more 190 pages of briefs of counsel. limitations in the same will to a per- 7 Crawford v. Clark (1900), above. son an( j his issue, the word Issue will 8 Beaver v. Nowell (1858), 25 Beav. be construed as a word of limitation, 551. so as to give the ancestor an estate 9 2 Bigelow's Jarman *1258 ; Frank- tail, unless there are expressions in lin v. Lay (1820), 6 Madd. 258, to J the will unequivocally indicative of a "and the issue of his body lawfully contrary intention." Per Strong, J., in to be begotten, and to the heirs of Angle v. Brosius (1862), 43 Pa. St. such issue for ever," but "in default of 187. 25 § 557 WILLS. 386 usually a fee simple. 10 In none of these cases do the issue take anything as purchasers, unless the statute directs that they shall. 11 Likewise, devises to several and their issue give them estates tail. 12 In such expressions, if the issue were admitted as purchasers, the natural construc- tion would be that they should take concurrently with the person named, as joint tenants or tenants in common; but the courts have shown a readiness, even when the devise was simply to one "and his issue," not only to read "issue" as a word of purchase, on account of words added inconsistent with regular descent to the issue, but to hold that the issue take by way of remainder expectant on the life estate of the ancestor. 13 § 557. To A for Life, Remainder to His Issue. Where the rule in Shelley's Case has not been abolished, a devise to A for life, remainder to his issue, also gives A an es- tate tail, and his issue nothing as purchasers; 14 which most of the statutes abolishing entails would convert into an absolute fee simple in A. 15 § 558. Effect of Added Words of Limitation. Added words of limitation descriptive of heirs of the same spe- cies as the issue before described, do not, according to the English courts, convert the word "issue" into a io Grimes v. Shirk (1895), 169 Pa. issue of her body, his, her or their St. 74, 84, 32 Atl. 113. heirs, equally to be divided if more n See the cases above cited ; Gam- than one." mell v. Ernst (1895), 19 R. I. 292, 33 14 Grimes v. Shirk (1895), 169 Pa. Atl. 222. St. 74, 32 Atl. 113, containing an ex- 12 Beaver v. Nowell (1858), 25 Beav. tended review of the decisions on this 551. subject; Angle v. Brosius (1862), 43 13 In Doe d. Davy V. Burnsall Pa. St. 187, "C having a life estate (1794), 6 Term 30, freehold and lease- in the same, and at his death to his hold estates were devised to M and legal issue or heirs ;" King v. Melllng the Issue of her body as tenant) to (1672), 1 Vent. 225, 232, 2 Lev. 58, common, but In default of issue, or if 61; Doe d. Cannon v. Rucastle (1849), they should all die under the age of S C. B. (65 E; C. L.) 876; Shaw v. 21 without leaving issue, then over. Weigh (1729), 2 Str. 798, 1 Barn. B. M suffered a common recovery, and it It. 54 ; Sparrow v. Shaw (1729), 3 was held that she took only a life Brown P. C. (Tom.) 120, 1 Eg. Cas. estate, and that the remainder, being Abr. 184, pi. 28. See also Doe d. contingent, was barred by the recovery. Garrod v. Garrod (1831), 2 Barn. & See also Burnsall v. Davy (1798), 1 Ad. (22 E. C. L.) 87. Bos. & Pul. 215, arising under the is Grimes v. Shirk (1895), 169 Pa. same will ; and Doe d. Oilman v. Elvey St. 74, 84, 32 Atl. 113. (1803), 4 East 313, "to A and the 387 QUANTITY OB DUBATION OF TFB ESTATE. § 559 •word of purchase, even in eases of gifts to one "for life, remainder to his issue, and to the heirs of such issue for- ever." 16 But according to some American decisions the operation of the rule in Shelley's Case is thus avoided, as the added words indicate a new stock of inheritance; 17 and it is admitted on all hands that if the added words would change the course of descent the rule would not apply. 18 § 559. When Issue Means Children. But if it appears from the context that the testator meant children by is- sue, the rule in Shelley's Case would have no application, and the children would take a remainder expectant on the life estate in their parent. 19 § 560. Effect of Devise Over. A devise over on in- definite failure of issue simply confirms the construction of the word issue as a word of limitation; 20 and a devise over in case of "dying without issue living at his death" 16 Grimes v. Shirk (1892), 169 Pa. St. 74, 85, 32 Atl. 113; Eoe d. Dod- Bon v. Grew (1767), 2 Wilson 322, Wilmot 272; Hodgson v. Merest (1821), 9 Price (4 Eng. Exc.) 556, according to syllabus. Limitation over to General Heirs. In Luddington v. Kime (1698), 1 L. Raym. 203, 1 Salk. 224, 3 Lev. 431; S. C, 3 Brown P. C. (Tom.) 64, sub nom. Barnardiston v. Carter, a gift for life to A without impeachment for waste, with remainder to the issue of A and to the heirs general of such issue forever, was held to give only a life estate with remainder to his issue as purchasers by reason of the added words of limitation. But this case has been considered as over-ruled by the later cases. 2 Bigelow's Jarman ♦1265. See King v. Burchell (1759), 1 Eden 424, Ambler 379; Elton v. Eason (1812), 19 Ves. 73. it Daniel v. Whartenby (1873), 17 Wall. (84 U. S.) 639; Shreve v. Shreve (1875), 43 Md. 382, 395; Mc- Intyre v. Mclntyre (1881), 16 S. Car. 290 ; Powell v. Board of D. M. (1865), 49 Pa. St. 46; Myers v. An- derson (1847), 1 Strobh. Eq. (S. Car.) 344. is Daniel v. Whartenby (1873), 17 Wall. (84 U. S.) 639, 643, and numer- ous cases there cited ; Lees v. Mosley (1836), 1 Young & Col. 589, 25 Eng. Rul. Cas. 643. 19 Bradley v. Cartwrlght (1867), L. R. 2 C. P. 511, 36 L. J. C. P. 218, 25 Eng. Rul. Cas. 661 ; Lackey v. Mande- ville (1795), Ridg. L. & S. (Ir.) 485, affirmed as Mandevllle v. Lackey, 3 Ridg. P. C. 352 ; O'Byrne v. Feeley (1878), 61 Ga. 77; Thomas v. Lever- ing (1891), 73 Md. 451, 21 Atl. 367; McPherson v. Snowden (1862), 19 Md. 197, 229; Pelrce v. Hubbard (1892), 152 Pa. St. 18, 25 Atl. 231; Nes v. Ramsay (1893), 155 Pa. St. 628; Park- hurst v. Harrower (1891), 142 Pa. St. 432; Robins v. Quinllven (1875), 79 Pa. 333. In Roddy v. Fitzgerald (1858), 6 H. L. Cas. 823, the words "if only one child to such only child" were held Insufficient to limit the generality of the word "issue," for although issue Includes all children, it might include others, and there is nothing in the words to show that the testator In- tended It should not. Following Gift to Parents, Issue may mean children. See ante J 445, note 88. 20 See post 55 632-5. § 561 WILLS. 388 in no way explains or restricts the meaning of the word as previously used, and the only result of the addition is to make the prior estate liable to be divested by the event giving effect to the devise over. 21 § 561. Where the Rule in Shelley's Case has been Abolished a devise to one for life, remainder to his issue, would go according to the terms of the gift, the first taker having an estate, for life and his issue taking as pur- chasers in remainder. 22 21 2 Bigelow's Jarman *1284. are not necessarily the same as those In Gadsden y. Desportes (1893), 39 who would take under the devise, or S. Car. 131, 17 S. E. 706, a life estate If they would not take the same es- and remainder in tail were held to be tate, the rule in Shelley's case does given by a devise to testator's daugh- not apply. Powell v. Board of D. M. ter for life, "and at her death to her (1865), 49 Pa. St. 46. Issue then living." Clearly these 22 King v. Savage (1876), 121 Mass. could be none other than the heirs of 303; Palmer v. Dunham (1890), 125 her body, neither more nor less ; but N. T. 68, 25 N. E. 1081 ; Gibson v. the court held that the rule in Shel- McNeely (1860), 11 Ohio St. 131. ley's case did not apply. As to who would then take as issue But if those who would take by and in what shares, see ante § 445. descent In tall from the first taker CHAPTER XVH. TIME OF ENJOYMENT OF THE ESTATE. 562. 563. 564. 5 565. J566. 5 567. J568. 5 569. Possession and Expec- tancy Denned. Of Estates in Posses- sion. Kinds of Estates in Ex- pectancy. Reversion Denned. Remainder Denned. Requisites of Valid Re- mainders — Particular Prior Estate. Abridgment o I Prior Estate. Remainder after Life Estate in Chattel Real. 570. 571. 572. 573. 574. 575. 576. 577. Favors to Devises — Gifts Over after Life Estate in a Term. Future Estates without Prior Partic- ular Estate. Devise of Fee in Abridgement of a Fee. Executory Devise De- fined. Incidents of Executory Devises. Estate Held to be Re- mainder if Possible. Acceleration of Remain- ders. "At Their Deaths." §562. Possession and Expectancy Denned. As to time of enjoyment all estates are either in possession or in expectancy. We have already seen that there is no es- tate of either kind till the testator dies. 1 Then what is to be immediately enjoyed becomes an estate in posses- sion; and what is to be enjoyed only after the termination of some preceding estate, after the lapse of some period, or after the performance of some prescribed condition, becomes an estate in expectancy. § 563. Of Estates in Possession there is nothing pecu- liar to be mentioned under this head. Whatever has been said of estates in general elsewhere is said of these, also, unless otherwise specified. § 564. Kinds of Estates in Expectancy. Of future es- tates, otherwise called estates in expectancy, there were two kinds known to the early common law, reversions and remainders; two others grew up in deeds operating under the statute of uses, springing uses and shifting uses; two more were introduced under wills, executory l See ante §§ 73-76, 320. 389 § 565 WILLS. 39 devises as to land, and executory bequests as to person- alty; and all of these have suffered more or less altera- tion by recent statutes. § 565. Reversion Denned. A reversion is the return of the land to the grantor and his heirs after the grant is over; 2 or more generally defined, so as to apply to all property and all methods of creation, it is a return of the estate to the original owner after a less estate carved out of it has determined. It is what the original owner did not part with when the prior less estate was created; from which it results that it is always a vested estate, never having been divested. 3 § 566. Remainder Defined. At common law a remain- der was a remnant of an estate in land depending on a prior particular estate, created at the same time and by the same instrument, and limited to arise immediately on the determination of that estate and not in abridgment of it. 4 §567. Requisites of Valid Remainders— Particular Prior Estate. Without attempting to specif y all the req- uisites of remainders, further than to say that they seem to be enumerated in the above definition, a few of them must be emphasized to distinguish executory devises. One of these essentials is a prior particular estate. There could be no valid remainder at common law without a prior estate created at the same time and by the same in- strument or livery, and enduring from the time of creation of the remainder till it came to possession. If the prior estate failed at any time the remainder immediately ad- vanced to possession if then in condition to do so, but if not it thereby failed entirely. Again, the prior estate was necessary to the creation of the remainder, because land could then be conveyed only by livery of seizin, which being an act must of necessity be immediate and 2 Coke on Littleton »142b ; 4 Kent 4 4 Kent Com. *198 ; Coke on Little- Com. *353. ton 49a, 143a. 3 4 Kent Com. *364. 391 TIME OF ENJOYMENT OP ESTATE. § 568 not future. The estate and enjoyment must have passed out of the feoffor the very instant that the estate was created, or not at all; so that a prior tenant to take at once was necessary to the creation of the estate. "When the Statute of Uses, 27 Henry VIII, A. D. 1535, enabled legal estates in land to be conveyed by deed without liv- ery of seizin, it became possible to create such future es- tates without a prior particular estate; and such future estates are called shifting uses if the grantor immediately parted with his estate, and springing uses if he did not. It should also be remembered that it has been provided by statute in a number of states that remainders shall not be defeated by failure of the prior particular estates supporting them. 8 § 568. Abridgment of Prior Estate. A reversion might always have been kept in abridgment of the estate granted or enfeoffed; but when an estate in land was lim- ited over to another in such a manner that if it took effect it would operate in abridgment of the prior estate, it was held that the remainder over was for that reason void, and the first estate was allowed to endure its full period. This rule was most commonly applied in holding a fee limited to arise in abridgment of a prior grant in fee to be void; for example, to A and his heirs, but if A should die under twenty-one, then over— in this case the remainder over was void. If the first fee lapsed before the death of the testator the remainder over was always good. There was another case in which a fee could be limited on a fee at common law. That was by alternative remainder, on a double contingency, in such a manner that if one took effect the other would not, and so that both could not possibly take effect. 6 § 569. Remainder after Life Estate in Chattel Real. It was a fiction of law that any estate for life was greater than the longest estate for years, even for a thou- sand years, though no man could hope to live so long; 6 Chains on Real Property »*B7, 139- « Doe d. Herliert v. Selby (1824), 2 142. Barn. & C. (9 B. C. L.) 926. § 570 WILLS. 392 from which it resulted, that, if a man owning a term for a thousand years in any land conveyed it to anyone for life with remainder over to another, the estate given to the life tenant was more than the grantor had, and there was nothing for the remainder man to take. The life tenant took the whole term. § 570. Favors to Devises— Gifts Over after Life Estate in a Term. Bearing in mind the rules ahove stated as to remainders, the peculiarities of executory devises will be observed. A man owning a term for years in land devised it to A for life, and the residue of the term to B if he should survive A. A sold the entire term and died before B, and it was held that B was without remedy. 7 This was in 1553, A. D. The same was held in later cases though the life tenant made no sale. 8 But not long after this it became settled that such limitations over by will were valid and indefeasible. 9 § 571. Future Estates Without Particular Prior Estates. Since no livery of seizin was made in conveying title by devise, there was not the same necessity for a particular prior estate to support a future devise, as there was in creating a future estate in land by feoffment. As devises were not introduced till uses had become com- mon, such future estates by devise might be supported by analogy to springing and shifting uses; and it was accordingly settled in 1675 that an estate in land to com- mence after the testator's death was valid, without a particular estate to support it, 'the land descending to the heirs in the mean time. 10 T Anonymous (1553), 1 Dyer 74b. (1610), 8 Coke 95a; Pells v. Brown 8 Woodcock v. Woodcock (1590), (1620), Cro. Jac. 590, 1 Salk. 299. Cro. EIIz. 795, In which the judges This is also a leading case, gave separate opinions, agreeing that io Snow v. Tucker (1675), 1 Siderfin the devise over was void. 153. In this case the devise was to At the time of this decision It had an infant, en ventre sa mere at the been held on peculiar facts that one death of the testator, to whom the use of a term had been The same doctrine was declared by devised for life could not bind the de- Coke in Manning's Case (1610), 8 vlsee over by any disposal she might Coke 95, from which It appears to make. Welcden v. Elkington (1577), have been settled before that time that 3 Dyer 358b. Estoppel entered into a devise to a man to become good on this decision. the devisee paying to the testator's ex- s A Leading Case. Manning's Case ecutors a specified sum was valid. 393 TIME OF ENJOYMENT OF ESTATE. § 573 §572. Devise of Fee in Abridgment of Fee. When the Statute of Wills, 32 Hen. VIII (1540), was enacted it was contended that by the very terms of the act the testa- tor was permitted to devise his lands "at his free will and pleasure," and therefore that a fee could be devised in abridgment of a fee, though that could not be done by deed. As to this contention the court held that the de- vise must nevertheless be lawful; and at first they held that the devise over in abridgment of the prior fee was void. 11 But later it was settled that a devise in abridg- ment of a prior fee was valid, though such an estate cre- ated by deed would be void. 1 2 Such devises are now uni- versally admitted to be good; as also are similar bequests of personalty. 13 § 573. Executory Devise Defined. The foregoing ex- position of the rules as to executory devises has been given before making any attempt to define what an execu- tory devise is, for the reason that the definition can be understood only by first knowing these rules. The fol- lowing is believed to be the only accurate definition, and it is also the generally accepted one. An executory de- vise is a limitation by will of a future estate or interest in lands which could not consistently with the rules of the common law be given effect as a remainder. 14 A com- mon error in this connection is to suppose that an execu- tory devise is necessarily a contingent interest? and this error has been augmented in no small degree by Sir Wm. Blackstone's definition. 15 lilt was so held in Soulle v. Ger- land; Miller's Will (1897), 42 N. T. rard (1596), Cro. Ellz. 525. Supp. 148; De Wolf v. Middleton 12 Taylor d. Smith v. BIddall (1895), 18 E. I. 810, 814, 31 Atl. 271, (1677), 2 Mod. 289, in which it was 31 L. E. A. 146, land; Ladd v. Harvey held that a devise to A till B should (1850), 21 N. Hamp. 514, 526, per- be 21, remainder to B, hut if B should sonalty; Banks, In re (1898), 87 Md. die under 21, then to C and the heirs 425, 40 Atl. 268. of his body, was a valid devise to C, u 4 Kent Com. »263 ; Challis on Eeal and, on B's death under 21, defeated Property *139 ; Brattle Square Church the fee that had vested in B when the v. Grant (1855), 3 Gray (69 Mass.) testator died. 142, 151, 63 Am. Dec. 725. is Glover v. Condell (1896), 163 111. 15 His definition Is as follows: "An 566, 592, 45 N. E. 173, 35 L. E. A. executory devise of lands Is such a 360, personalty; Strain v. Sweeny disposition of them by will that there- (1896), 163 111. 603, 45 N. E. 201, by no estate vests at the death of the § 574 WILLS. 394 § 574. Incidents of Executory Devises. The princi- pal incidents peculiar to executory devises, as distin- guished from common law remainders, are those above specified, and the following: An executory devise can- not be defeated by any act of the prior tenant. A remainder after an estate tail could be barred by a com- mon recovery suffered by the tenant in taiL It wa's set- tled in Pells v. Brown (1620), 16 that a common recovery suffered by the prior tenant did not bar the executory devise over if the devisee over was not a party to the pro- ceeding; and it has since been generally agreed that neither a common recovery nor any equivalent act by the prior tenant would bind the devisee over. 17 De- struction of the particular estate defeated all remainders that were not then in position to advance immediately to possession. 1 Executory devises do not depend on the prior estate at all. § 575. Estate Held to be Remainder if Possible. From what has been said it must not be supposed that future es- tates created by will are not subject to the law of re- mainders. Future estates in land created by will are never held to be executory devises unless they could not possibly take effect as remainders. 18 For instance, if the devisor, but only after some future equivalent to a common recovery In contingency." 2 Bl. Com. 172. In Ralston v. Truesdell (1896), 178 Pa. many cases of executory devise the St. 429, 35 Atl. 813, 1 Pro. E. A. 1. estate vests Immediately on the death l Doe d. Cadogan v. Ewart (1838), of the testator. See the cases above 7 Ad. & El. (34 E. C. L.) 636. cited. 18 Same Gift may 6e Either. Per in A Leading Case. Pells v. Brown Bailey, X, "It Is clear that where a (1620), Cro. Jac 590, 1 Salk. 299. devise may operate as a contingent re- This case has been called the Magna malnder It cannot be considered an Oharta of executory devises. Ander- executory devise. If a fee "be given by son v. Jackson (1819), 16 Johns. (N. way of vested limitation, but deter- Y.) 382, 8 Am. Dec. 330. mlnable, a remainder after that must 17 St. John v. Dann (1895), 66 Conn, be an executory devise; but if a fee 401, 34 Atl. 110; Downing v, Wher- Is limited in contingency, and upon rin (1848), 19 N. Bamp. 9, 49 Am. failure of that the estate Is given ov»r. Dec. 139; Randall v. Josselyn (1887), that is a, contingency with a double 59 Vt. 557, 10 Atl. 577, and numerous aspect; and if the estate vests in one, cases cited. it cannot in the other. Lodlngton v. Contra: Taylor v. Taylor (1870), Kime (1698), 3 Lev. 431. But it may 63 Pa. St 481, 485, dictum by Share- happen that an estate may be devised wood, J. On this dictum the executory over in either of two events ; and that devise over was held barred by a deed in one event the devise may operate 395 TIME OF ENJOYMENT OF ESTATE. § 576 future estate has a particular prior estate to support it, and would not operate in abridgment of that estate, such future estate is a remainder, though created by will, and as such is liable to be defeated by the destruction of the particular estate, 19 and would be barred by a common re- covery or other equivalent act by the prior tenant. 20 § 576. Acceleration of Remainders. If the particular estate fails for any reason other than the death of the devisee, for example, if it is void, forfeited, renounced, or revoked by a codicil, the remainder is accelerated and takes effect at once, though by the words of the will it was to take effect from and after the decease of the par- ticular tenant; for it is presumed that the testak>r in- tended the estate over to take effect on any event which removes the prior estate. 21 This is not an arbitrary doc- trine, but one founded on the presumed intention of the testator; and when it is evident that he did not intend the remainder to take effect till the expiration of the life of the prior donee, the remainder will not be accelerated. 22 If the particular estate lapses by the death of the par- ticular devisee before the testator, the remainders are not thereby defeated, provided there is any intervening remainder capable of advancing to an estate in posses- sion by the death of the testator. The immediate remain- as a contingent remainder, in the other 21 Jull t. Jacobs (1876), 3 Ch. D. as an executory devise. Thus if George 711; Maeknet v. Macknet (1873), 24 had left a child, a determinable fee N. J. Eq. 277, renunciation by the would have vested in that child, and widow; Yeaton v. Roberts (1854), 28 then the devise over could only have N. Hamp. 459, renunciation ; Holderby operated as an executory devise. But v Walker (1S56), 3 Jones Eq. (56 N. George having died without having had Car. ) 46, renunciation ; Pox v. Rum- a child, the first fee never vested, and ery (1878), 68 Me. 121, renunciation, the remainder over continued a con- Tinder a gift of the income of $5,000 tingent remainder." Doe d. Herbert to A while single, with gift over on v. Selby (1824), 2 Barn. & C. (9 E. C. death to B, held that B was entitled L.) 926, 930. to It on A's marriage. Bruch's Estate 10 Cunliffe v. Brancker (1876), 3 Ch. (1898), 185 Pa. St. 194, 39 Atl. 813. D. 393, 46 L. J. Ch. 128, 35 L. T. 578 22 Blatchford v. Newberry (1880), C. A. ; Doe d. Herbert v. Selby 99 111. 11, 48, renunciation ; Augustus (1824), 2 Barn. & C. (9 E. C L.) 926. v. Seabolt (1860), 3 Mete. (60 Ky.) 20 Brown v. Addison Gilbert Hosp. 155; Delaney's Estate (1874), 49 Cal. (1892), 155 Mass. 323, 29 N. E. 625; 76, renunciation; Plympton v. Plymp- Eichelberger v. Barnitz (1840), 9 ton (1863), 6 Allen (88 Mass.) 178, Watts (Pa.) 447. renunciation. See also post $ 604. '§ 577 STILLS. 396 der is thereby advanced to an estate in possession if then capable of vesting; and if not then capable of taking it fails entirely, and the next succeeding remainder ad- vances in the same manner, and so on to the end. 1 §577. "At Their Deaths." If property is given a number of persons and "at their deaths" to others, the testator cannot be taken literally. It is impossible that he supposed all would die at the same moment. He must have meant a share to go over on the death of each, or the whole to go over on the death of the survivor. The most natural construction would seem to be that death of the survivor was intended — the time when all should be dead; which would seem, also, to imply either joint tenancy or cross remainders between the first takers till that time. 23 But this construction yields to very slight indication of a different intention. The meaning is largely determined by the nature of the gift over. If the ultimate donees are the children of the first takers, who are not husband and wife, it would generally be un- derstood that the testator intended the share of each to go to his children immediately on his death. 24 Not so if there is no relation between them. 25 Any presumption arising from omission to provide for survivorship would seem to be neutralized by failure to provide for periodi- cal divisions. 28 l Robison v. Female O. A. (1887), Mass. 521, 65 N. B. 851; Wills v. 123 U. S. 702; Glover v. Condell Wills (1875), L. R. 20 Eq. Cas. 342; (1896), 163 111. 566, 45 N. E. 173, 35 Arrow v. Mellish (1847), 1 De Gex & L. R. A. 360; Bates v. Dewson (1880), Sm. 355, holding that "at their deaths 128 Mass. 334; Parker v. Ross (1898), to their children," in the gift over, 69 N. Hamp. 213, 45 Atl. 576 ; Hall meant the children of each ; Turner v. Smith (1881), 61 N. Hamp. 144; v. Whittaker (1856), 23 Beavan 196; Brown v. Brown (1861), 43 N. Hamp. Glasscock v. Tate (1901), 107 Tenn. 17, 23; Richardson v. Vanhook 486, 494, 64 S. W. 715. (1845), 3 Ired. Eq. (38 N. Car.) 581; The courts were formerly much more Wooley v. Paxson (1889), 46 Ohio St. inclined than now to hold even in such 307, 24 N. E. 599 ; Sherman v. Baker cases that the children took nothing (1898), 20 R. I. 446, 40 Atl. 11, 40 till the death of the survivor. So L. R. A. 717; Powell, In re (1900), held in Malcom v. Martin (1790), 3 2 Ch. D. 525, 69 L. J. Ch. 788, 83 L. T. Brown Ch. 50 ; Pearce v. Edmeadei 24. (1838), 3 T. & Col. Exch. 246.' 23 Loring v. Coolidge (1868), 99 ,25 Loring v. Coolidge (1868), 99 Mass. 191. Mass. 191. 24 Gardiner v. Savage (1903), 182 26 Loring v. Coolidge, above. CHAPTER XVm. VESTING AND DIVESTING OF FUTURE ESTATES. §580. Meaning of Vested. §587. Effect of Making Event 1581. An Estate Vests When. Part of the Descrip- §582. Presumption In Favor of tion. Vesting. §588. When a Future Time for §583. Words of Futurity. Payment. §584. Effect of Divesting Pro- §589. Effect of Mesne Disposi- visions. tion. §585. "If" Age is Attained, §590. Effect of Absence of etc. Words of Gift. §586. "When" of Age, etc. §591. Divesting Provisions. § 580. Meaning of Vested. An estate may be vested in possession, which is another way of saying that it is an estate in possession, or it may he vested in interest only, in which case it is not yet to he enjoyed though the right to future enjoyment has accrued; or it may he en- tirely contingent, in which case neither the enjoyment, nor the right to future enjoyment, have yet accrued. 1 A further distinction is taken between the cases in which the uncertainty relates to the person and those in which the event is uncertain. If the person is certain he has, as it were, a vested right to a contingent interest. 2 § 581. An Estate Vests When and as soon as there is a person in being and ascertained who has an uncondi- tional right to enjoyment upon the termination of the preceding estates which are all sure to terminate, or on the happening of any event that is sure to occur; 3 but till all these requirements concur no estate can vest. 4 i Sumpter v. Carter (1902), 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274. 2 See ante, § 478, note 73. 3 Forsythe v. Lansing (1900), 109 Ky. 518, 59 S. W. 854 ; Brown's Mat- ter (1897), 154 N. T. 313, 48 N. E. 537. 4Phlnizy v. Foster (1890), 90 Ala. 262, 7 So. 836; Leppes v. Lee (1891), 92 Ky. 16, 17 S. W. 146; Whiteside v. Cooper (1894), 115 N. Car. 570, 20 S. E. 295; Faber v. Police (1877), 10 S. Car. 376. In Jarboe v. Hey (1894), 122 Mo. 341, 26 S. W. 968, property was de- vised to a trustee to manage for the benefit of testator's spendthrift son, with power to the trustee to convey to the son whenever the trustee deemed him fit to handle it. The son having died before conveyance to him, the court held the exercise of the power 397 582 WILLS. 398 §582. Presumption in Favor of Vesting. The law favors that construction by which devises and legacies will be vested at the earliest moment consistent with a fair interpretation of the will, which is usually at the testator's death." § 583. Words of Futurity, such as "then," "from and after," and the like, are presumed to refer to the time of enjoyment rather than to the vesting of the es- tate. 6 For example, a gift "to A for life, remainder to B, but if B should die, then from and after the death of A I give it to C," would not postpone the vesting of C's estate till the death of A, if B should die before then. But such expressions are not without force, and may suf- fice with other circumstances to suspend the vesting. 7 § 584. Effect of Divesting Provisions. Though there are conditions in the will by which the estate may be a condition precedent, that no estate vested in him, and consequently that his widow took no dower, s Favor Vesting. Alabama — Phinizy v. Foster (1890), 90 Ala. 262, 7 So. 836. Delaware — Rnbecane v. McKee (1886), 6 Del. Ch. 40, 6 Atl. 639. Georgia — Sumpter v. Carter (1892), 115 Ga. 893, 42 S. E. 324, 60 L. B. A. 274. Illinois — Grimmer v. Frtederich (1896), 164 111. 245, 45 N. E. 498. Indiana — Aspy v. Lewis (1898), 152 Ind. 493, 52 N. E. 756 ; Harris v. Car- penter (1886), 109 Ind. 540, 10 N. E. 422. Maine — Hersey v. Purington (1902), 96 Me. 166, 51 Atl. 865. Massachusetts — Whall v. Converse (1888), 146 Mass. 345, 15 N. E. 660. Michigan — Rood v. Hovey (1883), 50 Mich. 395, 15 N. W. 525. New Jersey — Kimball v# White (1892), 50 N. J. Eq. 28, 24 Atl. 400. New York — Byrnes v. Stllwell (1886), 103 N. Y. 453, 9 N. E. 241; Hersee v. Simpson (1897), 154 N. Y. 496, 48 N. E. 890. North Carolina — Galloway v. Carter (1888), 100 N. Car. Ill, 5 S. E. 4. "Wisconsin — Patton v. Ludington (1899), 103 Wis. 629, 647, 79 N. W. 1073. 6 "Then," "From and After," Etc. Leading Cases. Boraston's Case (1587), 3 Coke 19, 25 Eng. Rul. Cas. 579; Doe d. Cadogan v. Ewart (1838), 7 Ad. & El. (34 E. C. L.) 636, and cases cited. Illinois — Grimmer v. Friederleh (1896), 164 111. 245, 45 N. E. 498, "after the death of my said wife." Indiana — Moores v. Hare (1895), 144 Ind. 573, 43 N. E. 870, and cases cited. Massachusetts — Marsh v. Hoyt (1894), 161 Mass. 459, 37 N. E. 454, "to take effect at her decease." New Jersey — Neilson v Bishop (1889), 45 N. J. Eq. 473, 17 Atl. 962. New York — Hersee T. Simpson (1897), 154 N. Y. 496, 48 N. E. 890, "from and after" the termination of the life estate. Pennsylvania — Carstensen's Estate (1900), 196 Pa. St. 325, 46 Atl. 495. 'Wisconsin — Patton y. Ludington (1897), 103 Wis. 629, 79 N. W. 1073; Lovass v. Olson (1896), 92 Wis. 616, 67 N. W. 605. TMcGlllis v. McGlllls (1898), 154 N. Y. 532, 541, 49 N. E. 145. 399 VESTING OF EUTTJEE ESTATES. § 585 divested before the time for enjoyment, the rule still holds. 8 § 585. "If" Age is Attained, &c. A devise to a per- son "if " he shall attain a certain age is contingent when unexplained. But if such expressions are followed by a devise over in case of death before attaining the age, or the like, it is held that the previous provision is thereby explained to be a condition subsequent, not preventing the vesting of the estate, but making it liable to be di- vested by the event failing. 9 §586. "When" of Age, &c. If a devise is made to A till B attains a stated age and then to B in fee, the fee vests in B on the death of the testator and is not divested by B's death under the prescribed age. 10 § 587. Effect of Making the Event Part of the Descrip- tion. "Where real or personal estate is devised or be- queathed to such of the children, or to such child or in- dividual as shall attain a given age, or the children, etc., who shall sustain a certain character, or do a particular act, or be living at a particular time, without any direct gift to the whole class, immediately preceding such re- strictive description; so that the uncertain event forms part of the original description of the devisee or legatee, —in such case, the interest so devised or bequeathed is necessarily contingent on account of the person. For un- til the age is attained, the character sustained, or the act performed, the person is unascertained; there is no per- son in rerum natura answering the description of the person who is to take as devisee or legatee." 11 sDucker v. Burnham (1893), 146 (1589), 3 Coke 19a, 25 Eng. Rul. Cas. 111. 9, 23, 34 N. B. 558, 37 Am. St. 579; Doe d. Wheedon v. Lea (1789), Rep. 135; Sumpter v. Carter (1902), 3 Term 41, 25 Eng. Rul. Cas. 585, 115 6a. 893, 42 S. E. 324, 60 L. R. and extended notes to last. A. 274; Forsythe v. Lansing (1900), Andrews v. Russell (1900), 127 Ala. 109 Ky. 518, 59 S. W. 854 ; Dawson 195, 28 So. 703 ; Stevens v. Douglass v. Schaefer (1894), 52 N. J. Eq. 341, (1895), 68 N. Hamp. 209, 38 Atl. 730. 30 Atl. 91 ; Cook v. McDowell (1894), n Smith on Executory Interests, § 52 N. 3. Eq. 351, 30 Atl. 24. 281 ; quoted with approval in Blatch- oHersey v. Purington (1902), 96 Me. ford v. Newberry (1880), 99 111. 11, 166, 51 Atl. 865. 16; Pestlng v. Allen (1843), 12 Mees. 10 Leading Cases. Boraston's Case & W. 279, 25 Eng. Rul. Cases 604, § 588 WILLS. 400 § 588. When a Future Time for Payment of a legacy is fixed by the will, the legacy will be vested or contin- gent, according as it shall appear that the testator meant to annex time to the gift or to the payment of it. If fu- turity is annexed to the substance of the gift, vesting is suspended; if to the payment only, the legacy vests at once. If the expression is doubtful the courts hold it to apply to the payment only. 12 § 589. Effect of Mesne Disposition. Directions as to the use of the property till the donee shall be of age or the like are not sufficient to prevent vesting before that time; 13 and a gift of the income or part of it to the donee during the interval tends rather to show immediate vest- ing. 14 § 590. Effect of Absence of Words of Gift. If there are no words of gift except in the direction to divide, this fact is often held to prevent vesting till the time for division. 15 But if the postponement was merely for the and extended notes ; Wilhelm v. Calder' time named, and the children of those (1897), 102 Iowa 342, 71 N. W. 214; then deceased take under the will and Sehuldt's Estate (1901), 199 Pa. St not by descent. Cox v. Wisner (1901), 58, 48 Atl. 879 ; Coggins's Appeal 43 App. Div. 591, 60 N. T. S. 349, (1889), 124 Pa. St. 10, 16 Atl. 579, 10 affirmed 167 N. Y. 579, 60 N. B. 1109; Am. St. Rep. 565, holding the vesting Stockwell v. Bowman (1902, Ky.), 67 suspended till the age was attained S. W. 379. Even if the estate vests though the gift over was only in case on the death of the testator, as has of death under age without issue; also been held, it would be divested in Acken v. Osborn (1889), 45 N. J. favor of the children by death of the Eq. 377, 17 Atl. 767, affirmed without parent before the date named. Penny opinion in 46 N. J. Eq. 607; McGillis v. Commissioners (1900), App. Cas. v. McGillis (1898), 154 N. T. 532, 628, 69 L. J. P. C. 113, 83 L. T. 182. 541, 49 N. E. 145. 122 Wma. Exrs. (7th Am. Ed.) 514; In Byrnes v. Stllwell (1886), 103 Eldridge v. Eldridge (1852),' 9 Cush. N. T. 453, 9 N. E. 241, a devise to (63 Mass) 516 . McCarty v. Fish a daughter for life and "from and (1891), 87 Mich. 48, 49 N. W. 513; immediately after" her decease to her McG iiu s v . McGillis (1898), 154 N. children, "and in case any • • • y 532i 49 N . E _ 145 . stark v Conde at the time of her death be dead leav- (1898), 100 Wis. 633, 640, 76 N. W. ing a lawful child" surviving, "such 600 ; Reed's Appeal (1888), 118 Pa. St. child or children shall take the share 2 15, 11 Atl. 787, 4 Am. St. Rep. 588. is Kimble v. White (1892), 50 N. J. Eq. 28, 24 Atl. 400. or portion his, her, or their parent would have been entitled to if living," was held to give each child a vested estate on the death of the testator, 1* Hersey v. Purington (1902), 96 which waB not divested by his death Me - 166 > 51 Atl - 865 - without issue before his mother. io Blatchford v. Newberry (1880), To Those Then Living and to ChiV 99 111. 11, 45 ; Leake v. Robinson dren of those then deceased has been (1817), 2 Meriv. 362; Reiff's Appeal held to vest only in those living at the (1889), 124 Pa. St. 145, 16 Atl. 636. 101 VESTING OF TUTUEB ESTATES. §591 convenience of the estate, 16 or to enable intermediate en- joyment by another, 17 the presumption raised by such expressions is rebutted, and the interest vests on the death of the testator. 18 § 591. Divesting Provisions. An estate may be vested absolutely, or defeasibly vested; and if vested de- feasibly it has all the qualities of such an absolute estate till the divesting contingency happens. 19 For example, it is a freehold estate of inheritance if it might possibly 1 endure forever. 20 Divesting provisions will be further considered when we speak of conditions. 21 16 Crane v. Bollea (1892), 49 N. J. Bq. 373, 384, 24 Atl. 237. 17 Cook y. McDowell (1894), 52 N. J. Eq. 351, 353, 30 Atl. 24. 18 This Rule Yields to the Intent of the testator gathered from the will as a whole. Goebel v. Wolf (1889), 113 N/ Y. 405, 21 N. B. 388, 10 Am. St. Rep. 464; Brown's Matter (1897), 154 N. T. 313, 325, 48 N. E. 537. Pay, Assign, and Transfer. "In some eases stress has been laid upon the terms 'pay, assign, and transfer' ; but I think that the current of modern authority Is the other way. It hag been said that yon cannot pay, assign, or transfer to a dead person ; but I think that It may be said with equal justice, that property cannot be held in trust for a dead person." Lan- phier v. Buck (1865), 2 Drewry & Sm. 484, 493. 10 Sumpter v. Carter (1902), 115 Ga. 893, 42 S. E. 824, 60 L. B. A. 274. ao Frail v. Carstalrs (1900), 187 111. 310, 58 N. E. 401, 6 Pro. B. A. 82. 21 See next chapter. 26 CHAPTER XIX. ESTATES UPON CONDITION. t, General Nature and Effect of Con- ditions. 5 594. Nature and Kinds of Conditions. S 595. How Precedent and Subsequent Distln- gulshed. 5 596. Precedent and Subse- quent — Different Ef- fects. § 597. When Subse- quent Operates as Pre- cedent. Effect of Each 5 598. Under Rule Against Perpetuities. § 599. Entry Necessary to Di- vest Estate. 8 600. Conditional Limitations Distinguished. 1 601. Importance of Distinc- tion — It u 1 e Against Perpetuities. 8 602. If Otherwise Il- legal as Condition. 5 603. Construction of Condi- tions Subsequent — In General. 5 604. Construction of Condi- tions Precedent — In General. 2. Legality and Construction of Par- ticular Provisions. A. Restraints on Alienation. 5 605. Methods Enumerated. 5 606. Forbidding Alienation. § 607. General Conditions and Limitations. 5 608. Bankruptcy and Levy as Conditions and Limita- tions. 5 609. Gifts to Trustees. 5 610. Suspending the Vesting of the Estate. B. Restraints on Marriage. 5 611. General Conditions Void. 5 612. Special Conditions Val- id. 1613. Validity of Restriction as Conditional Limita- tion. 5 614. Effect of Nature of Property and Gift Over. C. Conditions Against Contest- ing Will. 5 615. General Statement. 5 616. The Doctrine of Estop- pel. 5 617. Effect of Success or Failure. 5 618. Why Condition Void. 5 619. Answer to Above. 5 620. Decisions Based on Ab- sence of Gift Over. 5 621. Conditional Limitations Valid. 5 622. What is a Breach of Such Conditions. D. Conditions as to Support, Payment of Debts, Leg- acies, &c. 5 623. Are Conditions Subse- quent. 5 624. Effect of Breach and Remedy for it. E. Other Conditions — Legality. 5 625. Conditions Requiring Do- nees to Release Prop- erty Rights. 5 626. Conditions as to Resi- dence. 5 627. Condition that Donee Shall Reform. ' 5 628. Conditions Requiring Change of Name. 5 629. Conditions as to Relig- ion. F. Words Importing Failure of Issue. a. Effect on Prior and Subse- quent Estates. * 5 630. Definite and Indefinite Failure of Issue. 5 631. Effect to Enlarge or Re- strict Previous Be- quest. 5 632. Effect to Enlarge or Re- strict Previous Devise — Indefinite. 5 633. Definite — Effect on Pre- vious Devise. 402 403 ESTATES UPON CONDITION. §594 9 635. $636. (037. 5 638. 1639. (640. 9 641. § 634. Effect of Each on the Bequest Over. Effect of Each on the Devise Over. Importance of the Ques- tion. 6. Presumptions as to Meaning — As to Definite or In- definite Failure. Original Rule That In- definite Failure was Meant. How This Rule Was Es- tablished. Statutes Declaring Pre sumption. Expressions and Circumstances Importing Definite Fail- ure. General Rule. Following Gifts to Chil- dren. § 642. Exception — When Only Part of Children. i 643. Exception — When Definite Failure Spec! fled. § 644. Following Implied Power of Appointment to Is- sue Living. §645. Referring to Testator's Issue. § 646. Connected with Some Event Personal to the First Taker. §647. When Combined with Some Collateral Event Fixing the Time. §648. Certain Words Limiting the Time. §649. Confined by Nature or Subject of Gift Over. G. Simple Death as a Contin- gency. Possible Meanings. Refers to Testator's Death In Immediate Gifts. Rules When the Gift Is Not Immediate. Death Coupled with a Contin- gency. Means Death at an; Time. Gift Over in El- §650. §651. §652 §653. §654. §655. §656. §657. ther Event. Means Death Before Dis- tribution. Means Death Before the Testator. This Rule Does Not Apply. '.. Survivorship. (. General Comments. § 658. "Survivors" — Possible Meanings. >. Gifts to Survivors Not Includ- ed In Prior Gift. §659. Original Rule. § 660. Later English Rule. §661. Including the After- born. . Survivorship Between Donees. § 662. Death Before Testator — Issue Sharing. §663. Death After Testator — Other Rules Affecting. §664. Death After Testator and After Contingency Happens. §665. Death After Testator and Before Contin- gency Happens. 1. GENEEAL NATURE AND KINDS OP CONDITIONS. § 594. Nature and Kinds of Conditions. A condition in conveyancing means an uncertain event on the hap- pening or not happening of which an estate may arise, be enlarged or finally defeated. Conditions are: 1, such as are implied by law; and, 2, such as are expressed in the grant or devise. Only the last merit consideration here. Express conditions are: 1, conditions precedent, which are such as must be fulfilled before the estate can vest; § 595 WILLS. 404 and, 2, conditions subsequent, by which an estate already- vested may be enlarged or defeated. 1 § 595. How Precedent and Subsequent Distinguished. If there is nothing that requires the performance of the condition before the estate can vest the courts will con- sider it as a condition subsequent, and if the act is re- quired to be done before the estate can vest it is prece- dent. Different conclusions have been reached on the same words. It is a matter of intention not to be deter- mined by any precise rule. 2 § 596. Precedent or Subsequent— Different Effects. A condition precedent prevents the vesting of the estate till it is fulfilled, though it be impossible of performance or illegal, so as to defeat it entirely. But if a condition subsequent is illegal, or becomes so before the time for performance, or is impossible of performance, or becomes so by the act of Grod, the grantor, the testator, or him for whose benefit it is imposed, or by the course of public events, the estate which has already vested is not de- feated by failure of the condition. 3 12 Bl. Com. 152; Raley v. Umatilla (188T), 30 W. Va. 171, 3 S. H. 597. Co. (1887), 15 Ore. 172, 13 Pac. 890, Virginia — Burdls v. Burdis (1898), 3 Am. St. Rep. 142. 96 Va. 81, 30 S. B. 462, 70 Am. St 2 How Distinguished. A Leading Bep. 825. Case. Flnlay v. King (1830), 3 Pe- Wisconsin — Burnham v. Burnham ters (28 U. S.), 346, 374, a case fre- (1891), 79 Wis. 557, 48 N. W. 661. quently cited on this point. » 2 Cooley's Bl. Com. 156, 157, and Illinois — Goff v. Pensenhafer (1901), numerous case on each of these points 190 111. 200, 60 N. B. 110. collected in note to Casper v. Walker Maine— Morse v. Hayden (1889), 82 (1880), 33 N. J. Eq. 35, 40; McDon- Me. 227, 19 AH. 443. ogh v. Murdoch (1853), 15 How. (56 Maryland — Jenkins v. Horwlt* U. S.) 367, 412 ; Goff v. Pensenhafer (1900), 92 Md. 34, 47 Atl. 1022; (1901), 190 111. 200, 60 N. B. 110; Stickney's Will (1897), 85 Md. 79, 102, Burdis v. Burdis (1898), 96 Va. 81, 30 36 Atl. 654, 60 Am. St. Bep. 308. S. B. 462, 70 Am. St. Bep. 825, and au- Michigan — Markham v. Hufford thorlties cited. (1900), 123 Mich. 505, 82 n. w. 222, Impossibility of Performance. 81 Am. St. Bep. 222, 48 L. B. A. 580. An Extended Note on impossibility Uorth Carolina — Wellons v. Jordan of performance in conditions precedent (1880), 83 N. Car. 371. and subsequent will be found in 70 Am. Oregon — Baley v. Umatilla Co. St Bep. 829-837. See also note in 78 (1887), 15 Ore. 172, 13 Pac. 890, 3 Am. Dec. 234-236. Am. St. Bep. 142. Leading Case. Thomas v. Howell South Carolina — Shuman v. Held- (1692), 1 Salk. 170, 25 Bng. Rul. Cas. man (1902), 63 S. Car. 474, 41 S. B. G26, holding that a condition subse- 510. quent becoming impossible of perform- West Virginia — Beufl v. Coleman ance the estate becomes absolute. 405 ESTATES UPON CONDITION. § 597 § 597. When Subsequent Operates as Precedent. If the condition does actually happen against the gift before the estate vests, it has the effect of a condition precedent, in some respects, though it would otherwise have been considered a condition subsequent. Thus, it was held that a devise subject to a condition in absolute restraint of marriage, which would have been considered a condi- tion subsequent, and as such void, defeated the devise as a condition precedent, because the devisee married before the death of the testator. 4 § 598. Effect of Each Under Rule Against Perpetu- ities. Another important difference in the operation of conditions is that a gift subject to a condition precedent will be void if the condition might be performed later than twenty-one years after the end of lives in being at the death of the testator, whereas, no possible remoteness would defeat a condition subsequent nor the estate to which it is annexed. 8 § 599. Entry Necessary to Divest Estate. In no case does the breach of a condition subsequent defeat the gift. It is defeated only by entry for breach in case of lands; and no one but the donor or his heirs can take advantage of the breach. 6 Civil Law — Legacies — Condition Pre- pay to the legatee at the age of thirty cedent. A distinction is made between if he deemed the legatee then fit to devises and legacies. All the author!- handle it. The legatee became thirty ties agree that impossibility does not before the death of the testator. Coun- discharge a devise of land from a con- sel for the legatee claimed that the at- dition precedent, or permit it to vest tainment of the age before the testa- without performance. But by the civil tor's death prevented the trustee exer- law, which on this subject is adopted cising any discretion, and made pay- by the courts of equity, if a condition ment Imperative. To the first part of precedent to vesting of a legacy be- the proposition the court agreed ; but comes impossible, the bequest is dig- as to the last they held exercise of the charged from the condition, and vests discretion a condition precedent; which absolutely, unless it appears that the becoming impossible, defeated the gift condition was the sole motive of mak- entirely. Cassoday, C. J., doubting, ing the bequest. Nunnery v. Carter i Phillips v. Ferguson (1898), 85 Va. (1860), 5 Jones Eq. (58 N. Car.) 370, 509, 8 S. E. 241, 1 L. E. A. 837, 17 78 Am. Dec. 231, and note to last ; ap- Am. St. Hep. 78. proved in Burdis v. Burdis (1898), 96 5 Stickney's Will (1897), 85 Md. 79, Ta. 81, 30 S. E. 462, 70 Am. St. Bep. 36 Atl. 654, 60 Am. St. Eep. 308. 825. eWellons v. Jordan (1880), 83 N. In Stark v. Conde (1898), 100 Wis. Car. 371, broken condition that donee 633, 76 N. W. 600, a legacy was given should support his parents. In trust, and the trustee empowered to Effeot of No Provision for Entry* § 600 WILLS. 406 §600. Conditional Limitations Distinguished. It is often difficult to determine in particular cases whether the expression used is a condition subsequent or a con- ditional limitation, and the courts incline to resolve the doubt in favor of its being a condition. If the gift is dur- ing widowhood, until marriage, so long as she remains single, while sole, or the like, there are no words to carry the enjoyment beyond the time mentioned; which is there- fore of necessity held to be a conditional limitation, and not a condition subsequent, because it cannot be a condi- tion subsequent unless it might cut off the estate before its natural termination. Moreover, if there is a gift over on the happening of the event to someone else, it is al- ways held to be a limitation rather than a condition, regardless of the form of expression used; and the reason given is that no one but the grantor or his heirs can make entry to terminate the estate for breach of the condition, which is a technical rule arising out of the feudal doc- trines; wherefore, if it were held to be a condition it could have no effect, for the heir would have no interest to make entry, and breach of the condition does not termi- nate the estate till entry is made. But if words of con- dition are used without gift over, or even if the form of expression is equivocal it may be held to be a condition subsequent. 7 § 601. Importance of Distinction— Rule Against Per- petuities. A grant or devise subject to a condition sub- sequent leaves in the grantor or testator and his heirs a possibility of reverter, as a particle of the original es- tate never divested; which can therefore be released at any time, and never violates the rule against perpetuities, regardless of the remoteness of the time at which it may happen. But if it is a conditional limitation by reason of the estate over after the event being given to another, If the support is not furnished the tea- T Proprietors of Church in Brattle tator's heirs could enter for the breach Square v. Grant (1855), 69 Mass. (3 though no provision therefor was con- Gray) 142, 63 Am. Dec. 725 ; Williams talned In the will. Birmingham v. v. Jones (1901), 166 N. T. 522, 537, Lesan (1885), 77 Me. 494, 1 Atl. 151. 60 N. B. 240. 407 ESTATES UPON CONDITION. § 602 the event is a condition precedent as to his estate, pre- venting it from vesting till the condition is fulfilled, so that remoteness might violate the rule against perpetui- ties. 8 § 602. If Otherwise Illegal as a Condition. Again, if it is a conditional limitation, regardless of whether the estate over after the event is to another or reserved to the testator and his heirs, the fact that it is illegal or impossible of performance does not increase the durar tion of the estate to which it is annexed; whereas, if it were a condition subsequent its illegality or impossibility would prevent its operation to defeat the estate already vested. For example, a devise upon condition that if the devisee shall ever marry, the devise shall thereupon terminate and become void, would not be defeated by the marriage of the devisee after the death of the testator, for the condition is illegal and void on grounds of public policy as in absolute retraint of marriage. But if the gift were made in terms to last till marriage it would be a conditional limitation; and the fact that it prevents marriage has been held not to extend the estate of the devisee beyond the limitation. 9 Yet it must be admitted that when cases have occurred in which the provision tended to produce illegal or im- moral consequences, or for some other reason displeased the court, little difficulty has been experienced in hold- ing it a condition rather than a conditional limitation, regardless of the rules above stated; and some courts s Proprietors of Church In Brattle personal property — on action against Square v. Grant (1855), 69 Mass. (3 the widow's grantee to quiet title after Gray) 142, 63 Am. Dec. 725. her remarriage, held that her estate 9 Estate Ends at Limitation. Sum- terminated on her marriage ; Coppage mit v. Tount (1886), 109 Ind. 506, 9 v. Alexander (1842), 2 B. Mon. (Ky.) N. E. 582, holding a devise "so long 313, 38 Am. Dec. 153; Bostick v. as she remains my widow" to he a lim- Blades (1882), 59 Md. 231, 43 Am. ltation, not a condition, and citing ear- Rep. 548; Bruch's Estate (1898), 185 Her cases in same court declaring that Pa. St. 194, 39 Atl. 821, holding a be- such a condition would be void ; fol- quest of income "so long as she re- lowed in Levengood v. Hoople (1889), tains the name of Elizabeth Hamlin," 124 Ind. 27, 24 N. E. 373 ; Hibbit v. not to be a condition but a limitation ; Jack (1884), 97 Ind. 570, 49 Am. Eep. Pringle v. Dunkley (1850), 14 Sm. & 478, "to my beloved wife so long as M. (Miss.) 16, 53 Am. Dec. 110. she remains my widow," all real and § 603 WILLS. 408 seem to hold a conditional limitation, and the estate over, void the same as if the provision were a condition. § 603. Construction of Conditions Subsequent— In General. The courts are always inclined to decide all doubts in favor of the first taker. In other words, divest- ing provisions and conditions subsequent are always strictly construed. 10 If several contingencies are speci- fied in the conjunctive all must concur to defeat the prior estate, 11 though a whimsical or absurd intention must thereby be imputed to the testator. 12 Under a devise subject to limitation over in case of death "under age or without issue," the first taker's estate becomes inde- feasible as soon as he is of age. 13 A condition that the devisees shall learn some useful "trade" is satisfied by any special occupation, such as typewriter, or school teacher. 14 A power given testator's widow to defeat the devise to any of his children who ' ' should not be obedient to her during life," was held not well exercised by the will of the widow, because it did not recite the happening of the contingency. 15 Further illustrations are given in the footnotes. 16 io Skey v. Barnes (1816), 3 Merivale, tional limitation, and to terminate the 335, 25 Eng. Rul. Cas. 593 ; Sumpter v. gift on death before distribution. Carter (1902), 115 Ga. 893, 42 S. B. n Neilson v. Bishop (1889), 45 N. 324, 60 L. E. A. 274 ; Galloway v. Car- J- Eq. 473, 17 Atl. 962. ter (1888), 100 N. Car. Ill, 121, 5 S. 12 Neilson v. Bishop (1889), 45 N. E. 4, dictum ; Savings Bank v. Hayes J. Eq. 473, 17 Atl. 962. (1894), 18 E. I. 464, 28 Atl. 966, hold- is Eastman v. Baker (1808), 1 lng that a gift to testator's daughter Taunton, 174 ; Schlens v. Wilkens after the death or marriage of her (1899), 89 Md. 529, 43 Atl. 757; Say- mother "and in case my said daughter ward v. Sayward (1831), 7 Me. 210, 22 should die before my said wife," her Am. Dec. 191, holding a gift over on part to go to her daughter, was not death under age and without issue not divested by death after marriage of the to defeat the first devise on death with- widow, but before her death, the grand- cut issue after becoming of age. See daughter having died; Gordon v. Gor- also Hersey v. Furington (1902), 96 don (1889), 32 S. Car. 563, 11 S. E. Me. 166, 51 Atl. 865. 334, holding that a devise over to the l* Colby v.. Dean (1901), 70 N. H. survivor on death without issue did not 591, 49 Atl. 574. operate to defeat the estate of the last ig Carman v. Glass (1900), 197 Pa. survivor, though he died without is- St. 101, 46 Atl. 923. sue. 16 Timber to 6e Out. "Provided, how- In Lamb's Estate (1899), 122 Mich, ever, that all the timber on said 190 239, 80 N. W. 1081, 5 Pro. R. A. 300, acres shall he worked as per contract providing for gift over if any legatee now existing, and the issues therefrom should die before "probate or execu- paid to my eBtate," was held not to tion" of the will, held to be a condl- make the devise conditional, nor to en- 409 ESTATES UPON CONDITION. § 604 §604. Construction of Conditions Precedent— In General. A literal construction has often been given also to conditions precedent which did not operate to divest any prior estate, though the defeat of the gift left the property to be disposed of as intestate estate. For example, a gift was made to A for life, and if he should marry a lady of fortune, remainder to his children, but if he should die without issue, then to B forever. A did not marry a lady of fortune, but he left issue, and it was held that B did not take. 17 "But the cases are numerous in which it has been held that although the testator, in directing the gift over to take effect on failure of , the prior limitation, has only referred to one mode in which such prior limitation might fail, yet the gift over shall take effect if the prior limitation fails in any other mode — it being manifestly the testator's intention that the gift over should take effect in whatever manner the fail- ure of the prior limitation might happen." 18 The cases on this subject are very numerous, and so conflicting that no general rules can safely be laid down. title the heirs to any claim against Ch. 260, 4 L. J. Ch. (O. S.) 98; see the land or the devisee, the contract also Humberstone v. Stanton (1813), having been abandoned by the pur- 1 Ves. & B. 385 ; Chant v. Lemon chaser shortly after testator's death. (1900), 2 Ch. D. 345, 69 L. J. Ch. Lambden v. West (1895), 7 Del. Ch. 601, 83 Law T. 341, 48 W. B. 646, In 266, 44 Atl. 797. which the gift was to A for life, and Home for Daughter. A devise to if he should die unmarried and wlth- testator's son charged with payment out children, then over, and the gift of $1,000, and providing that testator's failed by his leaving a widow and no daughter of 29 should be furnished a children. See also cases cited post §§ home for life, was held not to entitle 641 n 3, 643 n 8. the daughter to support as a member of 18 Quoted from Klndersley, V. C, In the son's family, but only to reason- Lanphier v. Buck (1865), 2 Drewry le able accommodations In the house. Sin. 484, 491, in which the gift over C lough v. Clough (1902), 71 N. Hamp. was held to take effect on the death of 412, 52 Atl. 449. M unmarried, though by the terms of Requiring Services. A gift to slaves the will it was limited over only in of freedom and an equal share each case M's children should all die be- in the testator's estate on the death fore her, or afterwards die without ls- of his widow, provided they should sue then living. See also ante § 576. faithfully serve her till her death, was An Extended Note on substituting held not defeated by failure to serve "or" for "and," or vice versa, in such induced by emancipation of slaves by cases, will be found in 48 Am. Dec. law Miller v. Wilson (1902, Ky.), 66 565-574, appended to report of Janney S W. 755. v. Sprigg (1848), 7 Gill. (Md.) 197. i7Andree v. Ward (1826), 1 Buss. § 605 WILLS. 410 2. LEGALITY AND CONSTRUCTION OF PARTICULAR PROVISIONS. A. Restraints on Alienation.* §605. Methods Enumerated. Testators often desire to prevent their property heing sold or dissipated after they die, and the accomplishment of this desire has been attempted in various ways: 1, by forbidding the donee to sell, or declaring that the estate given shall not include the power to sell; 2, by making any attempt to sell a con- dition subsequent on which the property is to revert to the testator's heirs; 3, by making any such attempt a conditional limitation on which the estate is given over to another; 4, by making the gift to trustees to use the property and its income as they deem most advantageous to the desired beneficiaries; and, 5, by not making any present gift of the whole, but making its destination de- pend on a future uncertain event, before which no one can sell, for no one owns it. Of these in the order named. §606. Forbidding Alienation. Power to sell is an inseparable incident of ownership, so that a mere pro- hibition against selling, or proviso that the estate given shall not include the power to sell, is generally held to be repugnant to the gift and of no effect. 19 §607. General Conditions and Limitations. 20 Con- ditions subsequent preventing any and all alienation of an estate in fee, 21 even for a limited time, 22 are generally 1 57 Am. Dec. 488-499, 9 Am. Dec. Michigan — Mandlebaum v. McDonell 200-2, 49 Am. St. Rep. 117-138, 25 (1874), 29 Mich. 78, 18 Am. Eep. 61. Eng. Kul. Cas. 622-625, 2 Pro. R. A. New York — Roosevelt v. Thurman 501-2. (1814), 1 Johns. Ch. 220. is Prohibition Void as Repugnant. Tennessee — Fowlkes v. Wagoner United States — McDonogh v. Mur- (1898) (Tenn. App.), 46 S. W. 586, doch (1853), 15 How. (56 D. S.) 367, reviewing many cases. 412. 20 See notes 57 Am. Dec. 488-499, 9 Illinois — Jones v. Port Huron H. & Am. Dec. 200-2. T. Co. (1898), 171 III. 502, 49 N. E. 21 Estates in Fee — General Condition 700, 3 Pro. R. A. 15. . Void. Bradley v. Peixoto (1797), 3 Massachusetts — Todd v. Sawyer Ves. 324, 25 Eng. Rul. Cas. 613. A. (1888), 147 Mass. 570, 17 N. B. 527. leading case, Potter v. Couch (1890), 22 See note 22 next page. 411 ESTATES UPON CONDITION. 607 held void on grounds of public policy, which favors the unfettering of estates and freedom of alienation, and be- cause repugnant, power to alienate being an inseparable incident of such estates. And in this respect provisions in the form of conditional limitations are generally treated as conditions, and the limitation over held void for the same reasons. 23 But restrictions either by con- dition subsequent or conditional limitation are generally held valid and effectual if they are annexed to an estate not greater than a life estate, 24 or if the restriction is only against selling to a particular person or limited class of 141 U. S. 296, 315, 11 S. Ct. 1005; Freeman v. Phillips (1901), 113 Ga. 589, 38 S. E. 943 ; Conger v. Lowe (1890), 124 Ind. 368, 24 N. E. 889; Gushing v. Spalding (1895), 164 Mass. 287, 41 N. E. 297; Todd y. Sawyer (1888), 147 Mass. 570, 17 N. E. 527; Kaufman y. Burgert (1899), 195 Pa. St. 274, 45 Atl. 725. 22 Fee — Limited Restriction Void. Jones y. Port Huron E. & T. Co. (1898), 171 111. 502, 49 N. E. 700, 3 Pro. B. A. 15, prohibiting sale for thirty years; Hall v. Tufts (1836), 18 Pick. (35 Mass.) 455, holding yoid a condition restraining alienation of a remainder before the termination of the life estate ; Mandlebaum v. McDon- ell (1874), 29 Mich. 78, 18 Am. Rep. 61; Roosevelt v. Thurman (1814), 1 Johns. Ch. 220, "before his eldest son becomes of age" ; Anderson v. Cary (1881), 36 Ohio St. 506, 38 Am. Rep. 602, "shall not be allowed to sell • * * until the expiration of ten years"; Jauretche v. Proctor (1865), 48 Pa. St. 466, holding a restraint on selling during life void, but suggesting that "for a limited time" would be good; Fowlkes v. Wagoner (1898, Tenn. App.), 46 S. W. 586, reviewing many cases; Zillmer v. Landguth (1896), 94 Wis. 607, 69 N. W. 568. Contra: In Kentucky It is held that conditions in restraint of alienation of even estates In fee are valid, if the re- straint is only for a limited time. In Stewart v. Brady (1868), 3 Bush. 623, it was held that a condition that the devisee should not sell till she was 35 was valid. In Wallace v. Smith (1902), — Ky. — , 68 S. W. 131, 24 Ky. L. 139, the decision in Stewart v. Brady was followed, several other decisions being cited. See also the dictum of Field, J., In Cowell v. Spring Co. (1879), 100 U. S. 55, 57. In Indiana also it has been held that a mere prohibition against a trustee selling till the youngest child should be twenty-one was binding, so that the court could not order a sale at the suit of the trustee. Langdon v. Ingram (1867), 28 Ind. 360. 23 Conditional Limitations Void. Dugdale v. Dugdale (1888), 38 Ch. D. 176, 57 L. J. Ch. 634, 58 L. T. 581, 36 W. R. 462, 25 Eng. Rul. Cas. 616 ; Pot- ter v. Couch (1890), 141 U. S. 296, 315, 11 S. Ct. 1005. But see Conger v. Lowe (1890), 124 Ind. 368, 24 N. E. 889, dictum contra. 24 Valid in Life Estates. The Leading American Case, De Pey- ster v. Michael (1852), 6 N. Y. 467, 57 Am. Dec. 470, the opinion in which is a complete commentary and elabo- rate review of the cases on the sub- ject; Conger v. Lowe (1890), 124 Ind. 368, 24 N. E. 889 ; Roberts v. Stevens (1892), 84 Me. 325, 24 Atl. 873, 17 L. R. A. 266; Lampert v. Haydel (1888), 96 Mo. 439, 9 S. W. 780, 2 L. R. A. 113, 9 Am. St. Rep. 358, 39 Alb. L. J. 67; Tost v. McKee (1897), 179 Pa. St. 381, 36 Atl. 317, 2 Pro. R. A. 315. Contra: Hunt v. Hawes (1899), 181 111. 343, 54 N. E. 953; Henderson v. Harness (1898), 176 111. 302, 52 N. E. 68. § 608 WILLS. 412 persons. 25 Restraints on disposal except to particular persons were held void. 26 § 608. Bankruptcy and Levy as Conditions and Lim- itations. A distinction is generally recognized between voluntary and involuntary transfers as to the validity of such provisions. It is generally admitted that a condi- tion is valid by which the estate is to become void on the bankruptcy of the devisee or any attempt by his creditors to reach the property; and the same is held as to the val- idity of conditional limitations on such events, whether the estate over is to the testator's heirs or to third per- sons. 27 § 609. Gifts to Trustees 28 with power to use accord- ing to their discretion, commonly called "spendthrift trusts, ' ' are generally held valid and effectual to keep the property beyond the reach of the beneficiaries and their creditors. 29 The courts are not agreed as to whether even an equitable estate for life can be given so as to be free from liability to the. creditors of the beneficiary if the trustees are absolutely bound to turn it over to him even- tually. 30 That it may be done is held by the Supreme 25 To Person Named Valid. Overton New York — Bramhall v. Ferris T. Lea (1902), 108 Tenn. 505, 556, 68 (1856), 14 N. T. 41. S. W. 250 ; Cowell v. Spring Co. South Carolina — Heath v. Bishop (1879), 100 U. S. 55, 57, dictum; De (1851), 4 Rich. Eq. (S. Car.) 46, 55 Peyster v. Michael (1852), 6 N. X. Am. Dec. 654, dictum. 467, 57 Am. Dec. 470, dictum. Wisconsin — Luscombe's Will (1901), 26McCullough v. Gilmore (1849), 11 109 wis - 186 > 198 . 85 N. W. 341. Pa. St. 370, except to members of tee- England — Metcalfe v. Metcalfe tator's family. (1891), 3 Ch. D. 1, C. A., affirming s. c. 43 Ch. D. 633, 61 L. T. 767, 59 L. J. son (1811), 18 Ves. 429, dictum. United States — Nichols v. Eaton (1875), 91 U. S. 716, dictum. 2T Bankruptcy Valid Condition. v nr . y *, „ r> a t> h. Ch. 159, 38 W. E. 397; Doftus-Otway, A. lead/no Case. Brandon v. Rouln- Jn ^ (lg95) _ 2 Ch D ^ 28 "Spendthrift Trusts" are consid- ered in extended notes in : 24 Am. St. Rep. 686-697, 9 Am. St. Rep. 405-408, Kentucky — Bull v. Kentucky Nat 2 Pro R A 532-542 Bank (1890), 90 Ky. 452, 14 S. W. 29 Meek v. Briggs' (1893), 87 Iowa, 525; Bland v. Bland (1890), 90 Ky. 610 54 N w 456 43 Am st Kep 400, 14 S. W. 423, 29 Am. St. Rep. 410 . 390, dictum. ao See the reT i ew f caBes i n gm i t h Nebraska — Weller y. Noffslnger v Towers (1888), 69 Md. 77, 15 Atl. (1899), 57' Neb. 455, 461, 77 N. W. 92, 9 Am. St. Rep. 398, and in the note 1075, dictum. to the last. 413 ESTATES UPON CONDITION. 610 Court of the United States, and by the courts of a number of the states. 31 § 610. Suspending the Vesting of the Estate. Every gift is void at its creation which by any possibility might vest later than twenty-one years and nine months after the termination of some life or lives in being at the death of the testator. 32 To that extent suspension was per- mitted by the common law. But the time is now short- ened by statutes in many states. This is what is known as the rule against perpetuities, and is based on the pub- lic policy which favors free alienation. If the uncertain event might possibly happen too late, the preceding gift is of the same duration as if no such limitation over si Spendthrift Trusts Held Effect- ive in : United States — Nichols v. Baton (1875), 91 U. S. 716. California — Seymour v. McAvoy (1898), 121 Cal. 438, 53 Pac. 946, 41 L. R. A. 544. Connecticut — St. John v. Dann (1895), 66 Conn. 401, 34 AH. 110. Georgia — Barnett v. Montgomery (1887), 79 Ga. 727, 4 S. B. 874; Sln- nott v. Moore (1901), 113 Ga. 908, 89 S. E. 415; 7 Pro. R. A. 87. Illinois — Steib v. Whitehead (1884), 111 III. 247. Maryland — Smith v. Towers (1888), 69 Md. 77, 15 Atl. 92, 9 Am. St Rep. 398. Maine — Roberts v. Stevens (1892), 84 Me. 325, 24 Atl. 873, 17 L. R. A. 266. Massachusetts — Broadway National Bank y. Adams (1882), 133 Mass. 170, 43 Am. Rep. 504. Missouri — Lam pert v. Haydel (1888), 96 Mo. 439, 9 S. W. 780, 9 Am. St. Rep. 358, 2 L. R. A. 113, 39 Alb. L. J. 67. Mississippi — Leigh v. Harrison (1892), 69 Miss. 923, 11 So. 604, 18 L. R. A. 49. New fork — Campbell t. Foster (1866), 35 N. T. 361. Nebraska — ■ Weller v. Noffslnger (1899), 57 Neb. 455, 77 N. W. 1075. Pennsylvania — Thackara v. Mlntzer (1882), 100 Pa. St. 151; Handy's Es- tate (1895), 167 Pa. St. 552, 31 Atl. 983, 986. Tennessee — Jourolmon t. Massengill (1887), 86 Tenn. 81, 5 S. W. 719. Vermont— White v. White (1857), 30 Vt. 338. Virginia — Garland v. Garland (1891), 87 Va. 758, 24 Am. St. Rep. 682, and extended note to last, ami s. c. sub nom. Day y. Slaughter, 13 L. R. A. 212, 13 S. E. 478. Contra: Kentucky — Bland y. Bland (1890), 90 Ky. 400, 14 S. W. 423, 29 Am. St Rep. 390. South Carolina — Heath v. Bishop (1851), 4 Rich. Eg. (S. Car.) 46, 55 Am. Dec. 654. Virginia — Hutchinson v. Maxwell (1902), 100 Va. 169, 40 S. E. 655, 57 L. R. A. 384; Honaker v. Duff (1903), 44 S. E. 900. See also Kennedy v. Nunan (1877), 52 Cal. 326. Levying on a Power. One to whom only a general beneficial power to sell is given, or who has only a general power of appointment to the property, has no Interest in it which his cred- itors can reach, though he has at- tempted to exercise the power. Wales v. Bowdlsh (1889), 61 Vt. 23, 17 Atl. 1000, 4 L. R. A. 819. 82 Owsley v. Harrison (1901), 190 111. 235, 60 N. E. 89 ; State v. Holmes (1898), 115 Mich. 457, 73 N. W. 548. § 611 WILLS. 414 had been attempted. 88 Gifts to trustees with, discretion as to the disposition do not violate the statutes against suspending the power of alienation, though the trustees may or in fact do refuse to sell or distribute for a longer time than the statute allows, 34 or though the time allowed them is not measured by any life, 35 provided the terms of the trust permit them to do so within the time allowed. 36 B. Restraints on Marriages § 611. General Conditions Void. A general condition against marrying at all* annexed to a gift to one who has never been married, is contrary to public policy in favor of marriage, and being a condition subsequent is void; and the title of the donee is not divested by the mar- riage. 38 § 612. Special Conditions Valid. Even when the pro- vision can operate only as a condition subsequent it is generally held unobjectionable and effective if its only purpose is to defeat a gift to the testator's wife on her marriage, 39 to the testatrix's husband in case of his sub- 88 Brattle Square Church v. Grant dox v. Maddox (1854), 11 Gratt. (Va.) (1855), 3 Gray (69 Mass.) 142, 63 804, holding that a legacy "during her Am. Dec. 725, a leading case contain- single life and forever If her conduct lng a very valuable discussion of the should be orderly and she remain a rule. member of the society of Friends" was 34 Robert v. Corning (1882), 89 N. not terminated by her marriage to a Y. 225. man not a member of the society, 85 Deegan v. Wade (1895), 144 N. whereby she lost her membership, be- T. 573, 39 N. E. 692. cause it was a condition contrary to 86 Dana v. Murray (1890), 122 N. public policy, and because there was T. 604, 26 N. B. 21. no gift over on her marriage ; Morley 37 Notes. See the following notes on v. Rennoldson (1895), 1 Ch. D. 449, conditions in restraint of marriage : C. A. 80 Am. Dec. 492-4; 38 Am. Dec. 156- 39 Special Restraints Valid. 161; 4 Am. Dec. 114; 1 L. R. A. 837- Arkansas — Helm v. Leggett (1898), 8 ; 3 Pro. R. A. 164 ; 12 Bng. Law 60 Ark. 23, 48 S. W. 675. Quarterly Rev. (1896), 36. Connecticut— C h a p i n v. Cooke Conditions Tending to Separate (1900), 73 Conn. 72, 46 Atl. 282, a Husband and Wife are considered gift of realty and personalty to testa- ante § 212. tor's widow till marriage. 88 General Conditions Void. Will- Kentucky — Coppage v. Alexander iams v. Cowden (1850), 13 Mo. 211, (1842), 2 B. Mon. (Ky.) 313, 38 Am. 53 Am. Dec. 143, holding a provision Dec. 153. in a devise to children that if one Massachusetts — Knight v. Mahoney should marry her part should go to (1890), 152 Mass. 523, 25 N. B. 971, the other was void, as a condition in 9 L. R. A. 573, holding gift of realty general restraint of marriage ; Mad- and personalty "so long as she re- 415 ESTATES UPON CONDITION. §613 sequent marriage, 40 to anyone in case of a second mar- riage, 41 or even in case of any marriage to a specified individual, 42 or restricted specified class of individuals, such as the members of a family named, 43 or under a reasonable specified age, as twenty-one, 44 or without the consent of parents or guardians. 48 § 613. Validity of Restriction as Conditional Limita- tion. There are also cases in which it is decided that the provision is valid as a conditional limitation, being a gift till marriage, regardless of its validity as a condition. 46 mains my widow," with no gift over, a valid limitation, and sustaining writs of entry by the heirs after her mar- riage. Missouri — Dumey v. Schoeffler (1857), 24 Mo. 170, 69 Am. Dec. 422. Pennsylvania — Commonwealth v. Stauffer (1849), 16 Pa. St. 350, 51 Am. Dec. 489 ; Cornell v. Lovett (1860), 35 Pa. St. 100, holding a be- quest of annuity "during widowhood" not to enable> widow to maintain an action for Income accruing after her second marriage. South Carolina — Martin v. Seigler (1889), 32 S. Car. 267, 10 S. B. 1073 ; Pringle v. Dunkley (1850), 14 Sm. As M. 16, 53 Am. Dec. 110. Contra: Levengood v. Hoopie (1889), 124 Ind. 27, 24 N. E. 373; Maples v. Bainbridge (1818), 1 Madd. Ch. 590, and see Parsons v. Wlnslow (1810), 6 Mass. 169, 4 Am. Dec. 107, holding that the bequest to the widow was not defeated by her marriage be- cause there was no gift over after that event, though there was a gift over which was not to come to enjoyment immediately on the marriage. *o Stivers v. Gardner (1893), 88 Iowa 307, 55 N. W. 516; Bostick v. Blades (1882), 59 Md. 231, 43 Am. Rep. 548. 4i Restraint of Any Second Mar- riage Valid. Chapinv. Cooke (1900), 73 Conn. 72, 46 Atl. 282, a gift to testator's widow till marriage; Bostick v. Blades (1882), 59 Md. 231, 43 Am. Bep. 548, a gift to testatrix's husband to be void on his marriage ; Herd v. Catron (1896), 97 Tenn. 662, 37 S. W. 551, holding legacy to daughter ter- minated by her subsequent marriage; followed In Overton v. Lea (1902), 108 Tenn. 505, 549, 68 S. W. 250, a de- vise by a son to his mother on condi- tion not to marry ; Allen v. Jackson (1875), 1 Ch. D. 399, — C. .A., revers- ing same case, 19 Bq. Cas. 631, holding a legacy to a man defeated by his marriage after the death of the wlfa whose relative made the gift. 42Graydon v. Graydon (1872), 23 N. J. Eq. 229. 48 Restraints on Marrying in Named Family. Phillips v. Ferguson (1888), 85 Va. 509, 8 S. E. 241, 1 L. B. A. 837, 17 Am. St. Eep. 78 ; Hodgson v. Hal- ford (1879), 11 Ch. D. 959, gift for- feited by marriage to a Christian or to anyone not professing the Jewish faith; Greene v. Eirkwood (1895), 1 Ir. 130, holding valid a condition avoiding a gift to a daughter In event of her marrying "beneath her in life ;" Perrin v. Lyon (1807), 9 East 170, holding a condition against marrying a "Scotchman" valid and the annuity terminated by the marriage. 44 Marriage Under Age — Reuff v. Coleman (1887), 30 W. Va. 171, 3 S. E 597. 45 Marriage Without Consent. Stack- pole v. Beaumont (1796), 8 Ves. 89, 25 Eng. Rul. Cas. 628, a leading case; Hogan v. Curtln (1882), 88 N. T. 162, 42 Am. Rep. 244, holding a legacy de- feated by marriage with consent of only part of those named ; Nourse, In re (1899), 1 Ch. D. 63, holding that a gift of a certain sum to be Increased upon marriage with consent, did not entitle the legatee to the larger sum without performing the conditions. 46 Marriage as Limitation. Bennett \. Packer (1898), 70 Conn. 357, 39 Atl. 739; Levengood v. Hoopie (1889), 124 Ind. 27, 24 N. E. 373 ; Redding T. § 614 WILLS. 416 But even in such cases the courts have considered the intention of tks testator. Whether it be a condition sub- sequent or a conditional limitation, the courts are in- clined to give it effect if the manifest purpose was not to restrain marriage, but to provide for the legatee while unmarried, and therefore without that support which the testator would expect the husband to furnish after marriage. 47 § 614. Effect of Nature of Property and of Gift Over. Beyond this many fine distinctions have been made be- tween gifts of realty and gifts of personalty, between gifts with and those without limitation over to another, between legacies charged on realty and those payable out of personalty; and it must be admitted that the decisions cannot be reconciled. 48 C. Conditions Against Contesting the Will. § 615. General Statement. The law relating to condi- tions in wills imposing forfeitures of benefits thereunder on those contesting the will is in a state of confusion in England and America. 49 §616. The Doctrine of Estoppel would prevent one who has received benefits under a will from afterward contesting its validity without refunding the amount or bringing it into court. 60 § 617. Effect of Success or Failure. Of course, if the contestant does succeed in overthrowing the will en- tirely, for example, on the ground that it was obtained by fraud or undue influence, or that the testator was Bice (1895), 171 Pa. St. 301, 33 Atl. 162, 42 Am. Rep. 244; Parsons v. 330; Hotz's Estate (1861), 38 Penn. Wlnslow (1810), 6 Mass. 169, 4 Am. St. 422, 80 Am. Dec. 490 ; Little v. Dec. 107. Birdwell (1858), 21 Tex. 597, 73 Am. *» See notes In 60 Am. Dec 113 ; 59 Dec. 242. Am. Rep. 46. 47 Mann v. Jackson (1892), 84 Me. 50 Holt v. Rice (1874), 54 N. H. 398, 400, 24 Atl. 886, 16 L. R. A. 707; 20 Am. Rep. 138; Holt v. Holt (1886), Heath v. Lewis (1853), 3 DeGex M. & 42 N. J. Bq. 388, 7 Atl. 856, 59 Am. O. (52 Bng. Ch.) 954. Rep. 43. See also Flfleld v. Van Wyck 48 As to which see the notes cited (1897), 94 Va. 557, 27 8." E. 446, 64 at the head of this section and also Am. St. Rep. 746. Hogan v. Curtln (1882), 88 N. Y. 417 ESTATES UPON CONDITION. § 618 not of sound mind, or that it was not duly executed, or had been revoked, the situation is the same as if there had never been such a will, and he will take whatever he would get by intestate succession, regardless of the pro- visions of the will. But if the dispute is as to the validity of some other provision of the will than the one making the gift to him, or in any case if he fails to sustain his contention, it may be a question as to whether he can have the benefit of the provision for him. § 618. Why Condition Void. On the one hand it is said that, "no citizen should be obstructed by the risk of forfeiture from ascertaining his rights by the law of the land. * * * It is against the fundamental princi- ples of justice and policy to inhibit a party from ascer- ' taining his rights by appeal to the tribunals established by the state to settle and determine conflicting claims. If there be any such thing as public policy, it must em- brace the right of a citizen to have his claims determined bylaw." 61 §619. Answer to Above. On the other hand it is said that, "there is no duty on the part of an heir to con- test his ancestor's sanity. It matters not to the state whether the land is enjoyed by the heir or devisee." 52 Again it is said that, "no considerations of public policy require that an heir should contest the doubtful questions of fact or of law upon which the validity of a devise or bequest may depend. The determination of such ques- tions ordinarily affects only the interests of the parties to the controversy." 63 § 620. Decisions Based on Absence of Gift Over. In other eases the courts have held such provisions not ef- 51 Mallet v. Smith (1853), 6 Rich. 63 Bradford v. Bradford (1869), 19 Bq. (S. Car.) 12, 19, 60 Am. Dec. 107. Ohio St. 546, 2 Am. Rep. 419; ap- 52 Cooke v. Turner (1846), 15 Mee. proved and followed in Thompson v. & Wei. 727, 735, 8. c. (1844-5), 14 Gaut (1884), 82 Tenn. (14 Lea.) 310. Sim. (37 Eng. Ch.) 218, 493, a case See also Donegan v. Wade (1881), 70 often cited; approved in Holt v. Holt Ala. 501; Bryant v. Thompson (1891), (1886), 42 N. J. Bq. 388, 7 Ml. 856, 59 Hnn (N. Y.) 545. 59 Am. Rep. 43. 27 § 621 WILLS. 418 fective to defeat the gift to one contesting the will, be- cause there was no gift over to anyone else on the viola- tion of the provision, which is therefore to be treated as merely in terrorem; 84 which is a convenient expression invented by the courts to excuse themselves from giving a reason for disregarding the plain directions of the tes- tator. This evasion has been carried so far as to hold that a direction in the will that on the happening of the event the devise or bequest should become a part of the residue, is not a gift over to anyone else. 88 § 621. Conditional Limitation Valid. It seems to be quite generally agreed that such provisions are effective as conditional limitations in case there is an express gift over to another to take effect on the violation of the pro- vision. 56 § 622. What is Breach of Such Conditions. Filing a bill to obtain a construction of the will is not such an at- tempt to contest it as would work a forfeiture under such a clause. 67 D. Conditions as to Support, Payment or Debts, Legacies, etc. §623. Are Conditions Subsequent. Conditions an- nexed to devises or bequests, that the donee shall pay certain annuities, or furnish support or care for anyone, 54 Chew's Appeal (1863), 45 Pa. St. 66 Smithsonian Institution v. Meech 228. (1898), 169 U. S. 398, 413, 18 S. Ct. In Hoit V. Hoit (1886), 42 N. J. 396. Eq. 388, 7 AH. 856, 59 Am. Eep. 43, 57 Black v. Herring (1894), 79 Md. it is held that this doctrine is never 146, 28 Atl. 1063. See also Chew's applicable to devises of real estate, and Appeal (1863), 45 Pa. St. 228. as to personalty there was no occa- Frivolous Objections. In Adams v. sion to consider it in that case. Adams (1889), 45 Ch. D. 426, 63 L. T. In Nevitt v. Woodburn (1901), 190 442, the action was held frivolous and 111. 283, 288, 60 N. E. 500, a provision the forfeiture clause therefore effec- that the bequest should be void if the tive. legatee in any way should Interfere In Powell v. Morgan (1688), 2 Tern, with execution of the trust was held to 90, it was held that there was no for- be a condition subsequent. See also feiture because there was probable Lloyd v. Spillet (1734), 3 P. W. 344, cause for contesting the will, and the 346. litigation was not vexatious. 55Flfleld v. Van Wyck (1897), 94 Paying Costs of Suit oy Another. Va. 557, 27 S. E. 446, 64 Am. St. Eep. In Donegan v. Wade (1881), 70 Ala. 745. Contra: Bradford v. Bradford 501, advising a sister to contest the (1869), 19 Ohio St. 546, 547, 2 Am. will and paying the expenses of her Rep. 419. action was held to forfeit the legacy, 419 ESTATES UPON CONDITION. §624 are ordinarily held to be conditions subsequent, and therefore do not defeat the gift on failure to perform caused by the death of the annuitant before time for pay- ment, 58 or by his waiving the provision; 59 though the gift was in remainder after the death of the person to be paid or cared for; 60 and if the expression is doubtful it will be held not to be a condition at all, but a charge. 61 § 624. Effect of Breach and Remedy for it. Being a condition none but the testator's heirs could take advan- tage of the breach by entry; 63 but the annuitant could compel payment. 63 It being immaterial in whose name the suit was prosecuted. Suit by Guardian. In Bryant v. Thompson (1891), 59 Hun (N. Y.) 545, 549, it was held that the gift was forfeited though objection was made that the contest was made by the guardian of the legatee and not by the infant, for his contest was the infant's. 58 Sherman v. American Cong. Assn. (1899), 98 Fed. 495, annuitant having died after testator, but before first pay- ment; Morse v. Hayden (1889), 82 Me. 227, 19 Atl. 443, the person to be sup- ported having died before the testator ; Nunnery v. Carter (1860), 5 Jones Eq. (58 N. Car.) 370, 78 Am. Dec. 231 and note, the person to be supported dying before the testator. 5» Alexander v. Alexander (1900), 156 Mo. 413, 57 S. W. 110, because of ample means ; Livingston v. Gordon (1881), 84 N. Y. 136, 143, because dis- satisfied, etc., dictum. Effect of Breach Before Testator's Death. In Livingston v. Gordon, supra, a bequest was made to a "Home" for blind persons, the income to be paid to the "Home" as long as it should care for Gordon, and if till his death, then the "Home" should have the principal absolutely ; but if the society should fail to care for him till that time, then to any society that should so provide till his death. Gor- don was expelled by the society before the testator's death ; but on learning of the legacy it notified Gordon of its willingness to care for him. Held that the legacy was not forfeited by the expulsion, and that as long as it stood ready to comply it was entitled to the legacy whether Gordon was cared for or not. "The whim and caprice of Gordon could not control the right to the legacy." aoBurdis v. Burdis (1898), 96 Va. 81, 30 S. B. 462, 70 Am. St. Rep. 825 ; La Chapelle v. Burpee (1893), 69 Hun. 436, 23 N. Y. S. 453. But in Irvine v. Irvine (1891, Ky.), 15 S. W. 511, such a. condition was held to be precedent and to prevent vesting because not fulfilled. BiMcCarty v. Fish (1891), 87 Mich. 48, 58, 49 N. W. 513; Isner v. Kelley (1902), 51 W. Va. 82, 41 S. E. 158. 62Wellons v. Jordan (1880), 83 N. Car. 371. No Provision for Entry. But they could enter though no provision for entry were contained in the will. Bir- mingham v. Lesan (1885), 77 Me. 494, 1 Atl. 151. 63 Livingston v. Gordon (1881), 84 N. Y. 136; Isner v. Kelley (1902), 51 W. Va. 82, 41 S. E. 158. Remedy of Beneficiary. Gifts sub- ject to an understanding that the donee will pay certain sums create a per- sonal obligation on the donee accepting them, which may be enforced by anyone interested. Ledebuhr v. Wisconsin T. Co. (1902), 112 Wis. 657, 88 N. W. 607. See also post 8 756. The land is charged even In the hands of purchasers paying full value. Outland v. Outland (1896), 118 N. Car. 138, 23 S. E. 972, and cases cited; Thayer v. Finnegan (1883), 134 Ma»i. 62, and cases cited. Sheriff's Sale. The land is not dis- charged by sheriff's sale for creditor! 625 wills. 420 E. Other Conditions — Legality. § 625. Conditions Requiring Donees to Release Prop- erty Rights of their own are valid. If the gift is accepted it must be taken subject to the burden. One cannot claim under the will and against it at the same time. For ex- ample, a condition is valid which prevents one accepting it from making any claim against the estate. for what is lawfully due to him, or forfeits the devise or legacy if he does so. 64 § 626. Conditions as to Residence. 65 A gift of prop- erty to one for a home, or with other doubtful expression, will not be treated as a condition, and the property is not forfeited by living elsewhere. 66 "When the provision is clearly a condition the courts incline to give it as narrow a construction as possible. 67 And a condition as to resi- dence may be void on grounds of public policy, as if property should be given to a woman whose husband's business kept him in New York, on condition that she should reside only in Europe till death of or divorce from her husband, it being evident that the purpose was to separate her from her husband. 68 But any reasonable of the devisee. Walters's Estate there was a claim, though not per- (1901), 197 Pa. St. 555, 47 Atl. 862. haps maintainable at law. Knauss'a See also ante % 539 and notes Estate (1892), 148 Fa. St. 265, 23 Atl. thereto. 894. 64 Rogers v. Law (1861), 66 U. 8. es As to Residence. See extended (1 Black) 253; Sackett v. Mallory note on thls ques tion 33 N. J. Eq. 36- (1840), 1 Mete. (42 Mass.) 355. But 41 see Williams v. Jenkins (1893), 1 Ch. ' _ . ... _ „ „ „. D. 700; Matter of Vandevort (1892), " RTf?"^**™-" 1 ^? Z' 62 Hun fN T ^ 612 Hamill (1899), 151 Mo. 292, 52 S. W. A Violation of the Condition oy One f 3 ^ C ^ per v ' Walker < 1880 >' 33 N - of Two legatees' taking as joint ten- ' * ants was held to occasion no lapse, but 6T Strict Construction. Jenkins v. to entitle the survivor to the whole. Merritt (1879), 17 Fla. 304; Jenkins Rockwell v. Swift (1890), 59 Conn. v - Horwitz (1900), 92 Md. 34, 47 Atl. 289, 20 Atl. 200. 1022, holding that title absolute vested A gift above the face of the legacy ,n the devisee in 1885, under a devise of "whatever may be recovered against npon these conditions, that she con- the estate by due course of law" waB tinues to reside in Baltimore, and does held to include a claim that had been not marry again before 1885. allowed by the probate court for ser- 68 Separating Husband and Wife. vices rendered by the testator's daugh- Cruger v. Phelps (1897), 21 Misc. 252, ter without any contract by the tes- 47 N. T. S. 61, 70; Wilkinson v. Wil- tator to pay for them for the provl- klnson (1871), 12 Eq. Cas. 604. See sion indicates that he recognized that also ante 8 212. 421 ESTATES UPON CONDITION. §627 condition as to residence is generally held valid, and failure to perform the condition will defeat the estate, whether the gift is of realty or personalty, and whether the condition is' precedent or subsequent. 69 Whether the acts done amount to breach or performance is often a difficult question. In determining it the courts consider the purpose of the testator. 70 §627. Condition that Donee Shall Reform, &c. It need scarcely be said that conditions that the donees shall live moral lives or shall reform are valid, and must be performed to obtain or keep the gift. 71 ea Forfeit by 'Breach. Irvine v. Ir- vine (1891, Ky.), 15 S. W. 511; Grin- dem v. Grlndem (1893), 89 Iowa 295, 56 N. W. 505, holding the estate for- feited by living elsewhere ; Johnson v. Warren (1889), 74 Mich. 491, 42 N. W. 74, holding the devisee not entitled to the farm because he had not per- formed the lawful and reasonable con- dition "that he shall come within one year from the present date and live with my sister * • * until he shall arrive at the age of twenty-one ;" Reuff v. Colman (1887), 30 W. Va. 171, 3 S. B. 597, holding the gift for- feited by leaving before twenty-one, though requested to do so because of disgraceful conduct. 70 What is Breach. Irvine v. Irvine (1891, Ky.), 15 S. W. 511, holding a son had forfeited the farm devised by failure to live on it and support his mother till her death, though he gave her most of the rent, and she re- luctantly consented to his going ; Marston v. Marston (1860), 47 Me. 495, holding a step-son not entitled , for failure to perform a condition pre- cedent, in a devise of a farm "after his mother shall cease to be my widow, provided he shall live on the place and carry it on till that time ;" Barnett v. Dickinson (1901), 93 Md. 258, 48 Atl. 838, holding the condition not broken by temporary absence for medical treatment ; Shuman v. Heldman (1902), 63 S. Car. 474, 41 S. E. 510, holding that continued residence with the aunt, as a condition precedent, was not shown to be impossible, by proof that the aunt was dictatorial, overbearing, and disagreeable, and demanded un- pleasant service, and that impossibility was no excuse ; Harrison v. Foote (1895), 9 Tex. Civ. App. 576, 30 S. W. 838, holding a conditional limitation rather than a condition subsequent to be created by the words used, so that the estate was terminated by the re- moval. 71 Must Kef orm. Hawks v. Buyart (1890), 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391 ; Reuff v. Coleman (1887), 30 W. Va. 171, 3 S. E. 597. Whether Precedent or Subsequent. A direction to the executors to pay at the end of two years, If they should deem the legatee a reformed man, was held to be a condition precedent, not void for uncertainty. Markham v. Hufford (1900), 123 Mich. 505, 82 N. W. 222, 81 Am. St. Rep. 222, 48 L. R. A. 580. In the following cases similar pro- visions were also held to be conditions precedent: Jarboe v. Hey (1894), 122 Mo. 341, 26 S. W. 968 ; West v. Moore (1859), 37 Miss. 114; Stark v. Conde (1898), 100 Wis. 633, 76 N. W. 600. But in Burnham v. Burnham (1891), 79 Wis. 557, 48 N. W. 661, such a gift was held vested before reforming, and not to lapse by death unreformed. The will provided, "B. shall not receive any part, parcel, or interest in my es- tate, unless within five years after my decease, he shall have reformed, and become a sober and respectable citizen." Certainty Required. A gift on con- dition that the devisee "settles down in life and gets married" or "arrives at the age of forty" is precedent, not void for uncertainty, nor contrary to public policy. Cassem v. Kennedy § 628 WILLS. 422 § 628. Conditions Requiring Change of Name. There is nothing unreasonable or unlawful in a condition an- nexed to a gift that the donee shall adopt and continue to bear the name of the testator or of some other, and the gift is forfeited if the donee fails to adopt the name within the required time, 72 or afterward takes another. 73 § 629. Conditions as to Religion. Eequirements that the devisees or legatees shall espouse, 74 or abandon a cer- tain faith, 75 or, being a corporation, that it shall advocate no faith, nor permit any to be advocated in its precincts, 76 are generally held to be valid. F. Words Importing Failure op Issue. a. EFFECT ON PEIOR AND SUBSEQUENT ESTATES. § 630. Definite and Indefinite Failure of Issue. Fail- ure of issue is either definite or indefinite, definite being total extinction by a time certain, indefinite being failure (1893), 147 111. 660, 35 N. E. 738." (N. C.) 597, 27 E. C. L. 504, 2 Scott 71, See also Markham v. Hnfford (1900), "it was held sufficient that the name la 123 Mich. 505, 82 N. W. 222, 81 Am. . changed in a reasonable time, and that St. Rep. 222, 48 L. R. A. 580. _it need not he by applying for the royal "In case my son William shall not sign manual, make good use of the first, hut becomes 73 Valid as Condition Subsequent. a drunkard and a vagabond, like many Smith v. Smith (1902), Neb. , others," then the remainder shall be 90 N. W. 560. kept in trust and the income paid him, T4 Religion as Condition Held was held not to require the remainder Valid. Magee v. O'Neill (1881), 19 to be kept in trust on his becoming S. Car. 170, 45 Am. Rep. 765, on con- a drunkard, if not a vagabond. Forsyth dltion that the beneficiary shall be v. Forsyth (1890), 46 N. J. Eq. 400, educated in the Roman Catholic faith 21 Atl. 754. held, neither impossible, uncertain nor 72 Forfeit on Breach aa to Name, against public policy. But in Maddox Taylor v. Mason (1824), 9 Wheat, v. Maddox (1854), 11 Gratt. (Va.) 804, (22 U. S.) 325; Merrill v. Wisconsin a condition that the legatee should re- F. C. (1889), 74 Wis. 415, 43 N. W. main faithful to the Society of Friends 104, though not informed of the and never marry out of the society was legacy till too late; Astley v. Essex held void. (1874), 18 Eq. Cas. 290, though he 75 Barnum v. Mayor of Baltimore failed to assume the name in time (1884), 62 Md. 275, 4 Am. Pro. R. 291, merely because he did not know of his requiring the legatee to stop preaching rights. the Roman Catholic faith. Who May Complain. In Webster v. Forfeit on Becoming a Nun. In Cooper (1852), 14 How. (55 U. S.) Dickson, Ex parte (1850), 1 Simon (n. 488, it was held that non-compliance s.) (40 Eng. Ch.) 37, a provision that a was no defense to an action for pos- gift should become void if the legatee session, because no one but him to became a nun was held valid and efcec- whom the estate over was given could tive as a condition subsequent, though complain. there was no gift over. Time and Manner of Performance. 7e Vidal v. Girard (1844), 2 How. In Davies v. Lowndes (1835), 1 Bing. (43 U. S.) 127, 199. 423 ESTATES UPON CONDITION. § 631 at any time, either before or after the death of the person whose issue is referred to. 77 When a gift is made to A, for life or in fee, and if he should die without issue, to B, it is a question whether the testator meant that B should take whenever A and all his issue should be extinct, either before or after A's death, or whether he intended B to take only in case all of A's issue should die before A. Very likely no other question on the law of wills has been tried more frequently or caused the courts so much trouble as this and similar expressions. § 631. Effect to Enlarge or Restrict the Previous Gift — A Bequest for life was made absolute by gift over in case of death of the first without issue, for the words show that the testator did not intend the gift over to take effect if there were issue to enjoy it, and the rule in Shel- ley's Case, though strictly applicable only to land, was applied by analogy to give to the ancestor what the tes- tator meant for the issue. 78 A gift over on definite fail- ure of issue would operate to divest the previous devise or bequest on the happening of such failure and not by failure afterwards, and the nature of the prior gift is not material. 79 But a gift over on indefinite failure would never divest the first. 80 § 632. Effect to Enlarge or Restrict Previous Devise- Indefinite. Likewise, a devise over on indefinite failure of issue, enlarges a devise of land without words of limi- tation, or expressly for life, 81 to a fee tail, 82 and restricts 77 4 Kent Com. »274 ; Downing v. eon v. Clitherow (1747), 1 Ves. Sr. 24, Wherrin (1848), 19 N. Ham. 9, 49 Am. holding an estate tail created in A by Dec. 139; Anderson v. Jackson (1819), a devise to him for life, with power to 16 Johns. (N. T.) 382, 8 Am. Dec. 330. trustees to settle a jointure on his 78 Glover v. Condell (1896), 163 111. wife, and subject thereto in strict set- 566, 45 N. B. 173, 35 L. R. A. 360. tlement to the issue of such marriage, But see Sheets's Estate (1866), 52 Pa. but if A should die without issue, then St. 257, 268. over; George v. Morgan (1851), 16 79 2 Bigelow's Jarman »1284; Pa. St. 95, applying the rule in Glover v. Condell (1896), 163 III. 566, Shelley's case to give first taker a fee 45 N. E. 173, 35 L. E. A. 360 ; Ander- tail. son v. Jackson (1819), 16 Johns. (N. 82 2 Bigelow's Jarman **1308-1312, Y.) 382, 8 Am. Dec. 330, reviewing the 1284; Smith on Executory Int. 301 J decisions from the earliest times. 4 Kent Com. 276 ; Williams on Real so See the following section. Property (17 ed.) 290; Leake's Digest 81 Enlarged to Estate Tail. Allan- 181. § 633 WILLS. 424 to a fee tail, a devise expressly in fee simple, 83 or which would be a fee under the statute because without limita- tion. 84 A void limitation over does not affect the pre- vious gift, but leaves it as if no such gift over had been attempted. 85 § 633. Definite— Effect on Previous Devise. A devise over on definite failure of issue clearly does not restrict the previous devise, 86 except to make it subject to be di- vested by death without surviving issue; 87 and has been held not to enlarge it to a fee by implication. 88 But it has also been held that a fee tail is implied by a limita- tion over on definite failure of issue after a devise without words of limitation, since it is clear that the testator did not intend it to go over if there was issue to take it. 89 § 634. Effect of Each on the Bequest Over. A gift of personalty over on definite failure of issue is valid as an executory bequest, divesting the previous interest; but a gift over of personalty on indefinite failure of issue is void for remoteness, under the rule against perpetuities, and is not made good by the fact that the ancestor named never has issue. 90 § 635. Effect of Each on Devise Over. A devise of land over on definite failure of issue is also valid either as an executory devise or as a remainder, whether the 83 Restricted to Fee Tail. Ibid; (N. X.) 382, 8 Am. Dec. 330; Hill y. Dart v. Dart (1828), 7 Conn. 250; Hill (1873), 74 Pa. St. 173, 15 Am. Richardson v. Richardson (1888), 80 Rep. 545, holding a devise in fee for Me. 585, 16 Atl. 250 ; Brown v. Addl- want of limitation not cut to a fee tail son Gilbert Hospital (1892), 155 Mass. by devise over on definite failure of 323, 29 N. B. 625; Burrough v. Foster issue; De Wolf v. Middleton (1893), (1860), 6 R. I. 534. 18 R. I. 810, 26 Atl. 44, and cases 84 Barber v. Pittsburgh (1897), 166 cited. U. S. 83, 17 S. Ct. 488. 8T Ibid. 85 Brattle Square Church v. Grant 88 Poster v. Romney (1809), 11 East. (1855), 3 Gray, (69 Mass.) 142, 63 594; Taylor v. Taylor (1870), 63 Pa. Am. Dec. 725. St. 481, holding a devise for life not 86 Estate Not Restricted. Burton v. enlarged to fee tail by limitation over Black (1860), 30 Ga. 638, "if he should on definite failure of issue; Powell v. die without children;" Schmaunz v. Board of D. M. (1865), 49 Pa. St. 46, Goss (1882), 132 Mass. 141; Bell v. 57. Scammon (1844), 15 N. Hamp. 381, 89 Morris v. Potter (1871), 10 R! I. 41 Am. Dec. 706 ; Wilson v. Wilson 58, 69. (1890), 46 N. J. Eq. 321, 19 Atl. 132; bo Cooke v. Bucklin (1894), 18 R. I. Anderson v. Jackson (1819), 16 Johns. 666, 29 Atl. 840. 425 ESTATES UPON CONDITION. § 636 remainder is vested or contingent; 91 but a devise over on indefinite failure of issue is void under the rule against perpetuities, either as an executory devise or as a con- tingent remainder, and is valid only when it can operate as a vested remainder over after an estate tail. 92 And even when it can operate as a vested remainder after an estate tail it is very precarious, because liable, like all re- mainders after estates tail, to be cut off by the tenant in tail suffering a common recovery, or doing any equivalent act. Whereas if it were an executory devise on definite failure of issue no act of the tenant in possession could defeat it. 93 § 636. Importance of the Question. From what has been said it is seen that the nature of the prior estate, as to whether it is a life estate, a fee, or a fee tail, and the nature of the estate over, as to whether it is a re- mainder or an executory devise, and also as to its valid- ity, all depend on whether the words import a definite or an indefinite failure of issue. b. PRESUMPTIONS AS TO MEANING— AS TO DEFINITE OE INDEFINITE FAILURE. § 637. Original Rule that Indefinite Failure was Meant. At common law, the words "dying without is- sue," "dying without heirs," "on failure of issue," "without leaving issue," "in default of issue," "for want of issue," and the like, unexplained, were held by the courts to mean indefinite failure of issue, that is, either by the time of the death of the person named, or at any time after his death, no matter how remote. This was the interpretation whether the property limited on si See any of the cases cited post settled that a remainder after an ea- {§ 640-649. tate ta " Is nested if it depends on 92 4 Kent Com. 273 ; Doe d. Cado- nothing but the termination of the pre- gan v. Ewart (1838), 7 Ad. & El. (34 ceding estate. Smith d. Dormey v. E. O. L.) 636; Robinson's Estate Parkhurst, 18 Vin. Abr. 413-416, af- (1892), 149 Pa. St. 418, 428, 24 Atl. firmed in House of Lords; approved in 297 ' Taylor v. Taylor (1870), 63 Pa. 8t Eemainder on Estate Tail la *8i, 486. Vested. It has been authoritatively »s See ante §§ 574-5. § 638 WILLS. 426 the event was real estate, 94 or personal property; 95 but, while the distinction has been denied, 96 a tendency has been observed to find that a definite failure was intended in the case of personal property more readily than in the case of real property. § 638. How this Construction was Established. The courts considered that a man might properly be said to be dead without issue, if he died and left issue, all of whom were since deceased; quite as much as if he had died and left no issue behind him. 97 Chancellor Kent de- fended the rule with considerable fervor. He declared that if the rule depended on the real intention of the testa- tor, the question would still be open for discussion. He said: "It is probable that, in most instances, testators have no precise meaning on the subject, other than that the estate is to go over if the first taker has no posterity to enjoy it. If the question was to be put to a testator, whether he meant by his will, that if his son, the first taker, should die leaving issue, and that issue should be- come extinct in a month, or a year afterwards, the re- mainder over should not take effect, he would probably, in most cases, answer in the negative." 98 Yet it must be admitted that the construction given is an unnatural one, 04 Common Law Rule — Presumed Rusa. & My. (6 Eng. Ch.) 390, 8 Indefinite. 2 Blgelow'e .Tarman ••1324- Bligh (n. s.) 469, 2 CI. & Fin. 421; 1338; Cole v. Goble (1853), 13 C. B. Albee v. Carpenter (1853), 12 Cush. (76 B. C L.) 445, 4 J. Scott 445, 20 (53 Maes.) 382; Cooke v. Bucklln Eng. L. & Eq. 234, 22 L. J. (n. a.) (1894), 18 E. I. 666, 29 Atl. 840. C P. 148, 17 Jur. 808, holding "with- 96 "This Distinction was raised by out having any lawful issue" to create Lord Macclesfield, In Forth v. Chap- an estate tail in the land and that the man (1720), 1 P. Wms. 663, and sup- limitation over as to the personalty ported afterwards by such names as was void ; Barber v. Pittsburgh &c. Ry. Lord Hardwicke, Lord Mansfield, and (1897), 166 U. S. 83, 17 S. Ct. 488; Lord Eldon. But the weight of other Brown v. Addison Gilbert Hospital distinguished authorities, such as those (1892), 155 Mass. 323, 29 N. E. 625; of Lord Thurlow, Lord Loughborough, Tongue v. Nutwell (1858), 13 Md. 415; and Sir William Grant, is brought to George v. Morgan (1851). 16 Pa. St bear against any such distinction." 95; Anderson v. Jackson (1819), 16 4 Kent Com. 281. See also a discus- Johns. ' (N. Y.) 382, 8 Am. Dec. 330; sion of this distinction in Campbell v. Presley v. Davis (1854), 7 Rich. Eq. Harding (1831), 2 Russ. & My. 390, (S. Car.) 105, 62 Am. Dec. 396; Lewis 403. v. Claiborne (1821), 5 Terger (13 »t Williams on Real Property (17th Tenn.) 369, 26 Am. Dec. 270. ed.) 290. sis Campbell v. Harding (1831), 2 98 4 Kent Com. 274. 427 ESTATES UPON CONDITION. § 639 which would never have obtained had the rule not been so thoroughly established before the decay of the feudal institutions which induced it. It may be that if his at- tention had been directed to the matter the testator would have incorporated the exceptions suggested by Chancellor Kent. Be that as it may, he did not say so. The written words are the will, not the secret wish. Voluit sed non dixit, applies. §639. Statutes Declaring Presumption. The impor- tance of the old decisions as to the construction of phrases importing failure of issue has been materially lessened by statutes which have been enacted in nearly all the states, declaring that by "dying without issue," "fail- ure of issue," "leaving no issue," or any other words im- porting either want or failure of issue, the testator shall be presumed to mean want or failure of such issue at the time of the death of the person, and not indefinite failure of issue, unless a different intention shall appear from the will." Nevertheless, these rules still come up under the new law so frequently that it is necessary to determine what words imported definite failure of issue before these stat- utes were enacted. c. EXPRESSIONS AND CIRCUMSTANCES IMPORTING DEFINITE FAILURE. § 640. General Rule. The rule that indefinite failure was meant always yielded to a different intention clearly »9 Definite Failure Presumed by Michigan — Mulreed v. Clark (1896), Statute. HO Mich. 229, 68 N. W. 138. Alabama — Civil Code (1896), § 1023. Mississippi — Sims v. Conger (I860), California — Civ. Code (1901), § 1071. 39 Miss. 231, 77 Am. Dec. 671. Georgia — Stone v. Franklin (1892), Missouri — Naylor v. Godman (1891), 89 Ga. 195, 15 S. E. 47. 109 Mo. 543, 550, 19 S. W. 56. Indiana — Moore v. Gary (1897), 149 Montana — Code and Stat. (1895), Ind. 51, 48 N. E. 630. 5 1475. Kentucky — Dorsey's Com. v. Maddox Hew Jersey — Patterson v. Madden (1898), 103 Ky. 253, 44 S. W. 632. (1896), 54 N. J. Eq. 714, 36 Atl. 273. Maryland — Weybright v. Powell New Mexico — Com. Laws (1897), I (1898), 86 Md. 573, 39 Atl. 421, 8 2044. Pro. R. A. 137. New York— Rev. St. pt. 2, t. 2, § 22 ; Massachusetts — Rev. Laws (1902), Moore's Estate (1897), 152 N. Y. 602, Cn. 134, sec. 5. 46 N. E. 960. §641 WILLS. 428 expressed on the face of the will, 1 and in the later cases the courts eagerly seized any circumstance indicating an intention to limit to definite failure. 2 It was established that a definite failure of issue was imported in the follow- ing classes of cases: § 641. Following Gifts to Children, &c. 1. When de- vises in fee simple or bequests absolute were made to the "children," "sons," "daughters," or the like, of any person, with limitation over if he should ' ' die without is- sue," this and similar expressions were held to refer and be confined to the issue previously mentioned, though no word like "such" was annexed to the statement so as expressly to confine it, and all the more if the expression was "such issue." 3 This construction was adopted Worth Carolina — Buchanan v. Bu- chanan (1888), 99 N. Car. 308, 5 S. B. 430. North Dakota — Rev. Code (1899) i 3526. Rhode Island — Johnson's Petition (1901), 23 R. I. Ill, 49 Atl. 695. South Carolina — Bethea v. Bethea (1896), 48 S. Car. 440, 26 S. E. 716. South Dakota — Ann. Stat. (1901), | 4428. Tennessee — Armstrong v. Douglass (1890), 89 Tenn. 219, 14 S. W. 604. Virginia — Randolph v. Wright (1886), 81 Va. 608; Schultz v. Schultz (1853), 10 Gratt. 358, 367. West Virginia — Code (1899), p. 680, § 10. 1 2 Bigelow's Jarman *1326. 2 Strain v. Sweeny (1896), 163 111. 603, 45 N. B. 201 ; Schmaunz v. Goss (1882), 132 Mass. 141. "Issue or Child." The meaning was held restricted to definite failure of Issue by devise over on death "leav- ing no Issue or child." Hill v. Hill (1873), 74 Pa. St. 173. 3 Confined to Issue Before Men- tioned. 2 Bigelow's Jarman **1286- 1307; Bryan v. Mansion (1852), 5 De Gex & Sm. 737, and numerous cases there cited. In Daley v. Koons (1879), 90 Pa. St 246, a devise was made of land to M for life, "and after her death to her children In fee, and in the event of my said daughter dying without Is- sue," to testator's other children. In an action by M for the price under a contract by which she sold the fee, the court held that she took only a life estate, and that "dying without issue" meant and referred to the is- sue before specified. In Sheets's Estate (1866), 52 Pa. St. 257, realty and personalty were given to testator's children, and after the death of any, "to the children of such deceased child ; provided that If any of my children should die without Issue," his share shall go to the sur- vivors. One of the sons died without issue, and his widow claimed he owned in fee. The court held that Issue meant such issue, and that the chil- dren took only life estates. In Baker v. Tucker (1850), 3 H. L. Cas. 106, the devise was of lands In trust for J for life, remainder in tall male to his sons successively, and In default of such issue, to his daughters and their heirs, "and in default of Is- sue of the said J," to the testator's heirs. J enrolled a disentailing deed, married, devised the land, and died without having had issue. The court affirmed the decision below (11 Irish Eq. R. 104), holding that J took only a life estate, and not an estate tall, because "default of issue" referred to the sons and daughters as before indi- cated, following Blackborn v. Edgley (1719), 1 P. Wms. 605, and reviewing many other cases. 429 LSTATES UPON CONDITION. §641 The following cases are to the same effect, on devises of land to children, and in case of death without issue then over. Ginger d. White v. White (1742), Willes 348; Goodright v. Dun- ham (1779), 1 Doug. (Bng.) 264; Mai com v. Taylor (1831), 2 Russell & My. 416. In Crawford v. Clark (1900), 110 Ga. 729, 36 S. E. 404, 6 Pro. E. A. 15, a bequest of $200 was "to my daughter 8, and after her death to her child or children ; * * • If my daughter S should die without issue" then to my surviving children ; and in an action by the surviving children to recover the money from S's husband after her death, It was held that "without Issue" meant without such issue, and such failing plaintiffs recovered. In Doe d. Lyde v. Lyde (1787), 1 Term 593, a term for years was be- queathed to G for life, and after his decease to M for life, and after the decease of the survivor to the children of G, and if G died without issue then over ; and It was held that there being no child of G, the gift over took effect. When Meaning "Such Issue" it is not Further Restricted to Such Age, &c. In Doe d. Rew v. Lucraft (1832), 8 Bing. (21 E. C. L.) 386, 1 M. & Sc. 573, the testator devised land to such son of his as should first attain 21 years, and if none to his daughter J on reaching 21 years ; but if he should die without leaving issue then to li. Tes- tator died leaving J (aged 4 years) his only issue, and she soon died. The court held that the devise over did not take effect, saying : "Now these words may be taken according to their .nat- ural meaning; and then they imply a devise over after a general failure of issue, which would be void, as too re- mote ; or they may be taken to mean a dying without leaving a child or children ; in which case the event on which the devise over is to depend will not have happened, for the tes- tator died leaving a daughter. But on the part of the defendant a third con- struction has been contended for, namely, • • * that this is to mean, not only such issue as had been before described, namely, a son and a daughter, but such issue, with the re- strictions which accompany the men- tion of them in the preceding devise. But though cases have been cited to «how that the word issue may be ap- plied to such Issue as have been de- scribed before, there is no case to show that when used in such sense it la also to include the restrictions which may have accompanied the mention of such issue in the preceding parts of the will." "Issue, Child or Children." In Walker v. Milligan (1863), 45 Pa. St. 178, the devise was to testator's son for life, remainder "to his lawful is- sue, child or children, as may be then living, or to the lawful Issue of such child or children as may be then dead, and for want of issue to my rightful heirs," and the court held "children" to define who were meant by issue. Issue Restricted Without Word Child. In Taylor v. Taylor (1870), 63 Pa. St 481, the devise was to testator's daugh- ter for life, and if she should die be- fore her mother "leaving issue," then such issue should enjoy ; "but in case my daughter shall depart this life not leaving lawful issue" then over ; and the court held that Issue meant chil- dren, and therefore the gift over was on death without children. In Gannon v. Peterson (1901), 193 111. 372, 62 N. E. 210, 7 Pro. R. A. 254, land was devised to three sons and their heirs, and "upon the death of either" to the survivors and their heirs, "and in case all three should die without issue," then to J and M for- ever. Two of the sons died without issue, and the other still living had none when this action was commenced by the children of J (now deceased) to restrain waste by the surviving son in mining coal on the land. The court held that the testator meant children by "heirs," "issue," and "children," used interchangeably, that each son took in fee with cross-remainders, sub- ject to a valid executory devise over to J and M in case of death without children then living. Die Without Children. In Bedford's Appeal (1861), 40 Pa. St 18, Strong, J., quotes and approves the following from Stone v. Maule (1829), 2 Si- mons (2 Eng. Ch.) 490, "It has been assumed that the words 'without hav- ing any child or children' are synonym- ous with the expression 'without Is- sue.' But why am I to put a construc- tion on these words which they do not strictly bear, for the purpose of de- feating the intention of the testator?" When Prior Qift was to certain "It- § 642 WILLS. 430 though the prior devise was to sons only, not including daughters, so that no estate tail to the parent was im- plied. 4 § 642. Exceptions— When Only Part of Children. But when the prior devise included only part of the sons; for example, to A for life, remainder to the issue of his present marriage, but if he should die without issue, then over, 6 or to A for life, remainder to his first, second, and so to his sixth son (and no further) in tail male, succes- sively, and if A should die without issue, then over; 6 this construction was not always given. In these cases the words importing failure of issue were often held not to refer or be confined to the issue before mentioned, but to refer to issue generally, and therefore estates tail to A, in remainder after the express devises to his issue, have been held to be created by implication, to avoid disappointing his other issue, which it was thought the testator did not intend to do. Likewise, when devises for life only have been made to the children of a certain person, with devise over if he should die without issue, an estate tail has been held to be given by sue." The words importing failure of (1826), 1 Euss. 260, 4 L. J. (O. S.) Issue referred all the more clearly to Ch. 98. See also Allanson v. Clithe- the issue previously indicated and row (1747), 1 Ves. Sr. 24; Campbell were confined by the previous expres- v. Harding (1831), 2 Euss. & My. (6 Bion when the prior gift was expressly Eng. Ch.) 390, 8 Bligh (n. s.) 469, to "issue" and confined by the context 2 CI. & Fin. 421, all tending to the to issue living at a particular time, same result. or to issue of a particular class. Leem- 4 Bamfield v. Fopham (1702), 1 P. ing v. Sherratt (1842), 2 Hare (24 Wms. 54; Baker v. Tucker (1850), 3 Eng. Ch.) 14. See also Ellicombe v. H. L. Cas. 106. Gompertz (1837), 3 Mylne & Cr. (14 s Allanson v. Clitherow (1747), 1 Eng. Ch.) 127, 151 ; Trickey v. Trickey Ves. Sr. 24. (1832), 3 Mylne & K. (10 Eng. Ch.) e Atty. Gen. v. Sutton (1721), 1 P. 560, all tending to the same result. Wms. 753, 3 Brown P. C. (Tom.) 75; But when a bequest was made to Key v. Key (1853), 4 De Gex M. & G. testator's son for life, and if he should (53 Eng. Ch.) 73; Langley v. Baldwin marry a lady of £1,000 fortune re- (1707), 1 Eq. Cas. Abr. 185, pi. 29, mainder to the issue of such marriage, reviewed in 1 P. Wms. 759, and 1 Ves. and if he should die without issue then Sr. 26. over ; it was held that '*vJtho.ut,Jssue'' a "Such Issue." But even in these could not be read "witBout 'Such is- r cases if the gift over was on failure of sue," and therefore the bequest over "such issue" no estate tail in the an- dld not take effect, though the son cestor was implied. Bridger v. Barn- married a wife without fortune, and sey (1853), 10 Hare (44 Eng. Ch.) left only issue of such marriage who 311. could not take. Andree v. Ward 431 ESTATES UPON CONDITION. § 643 implication to the parent, subject to the life estates to his children. 7 § 643. Exception— When Definite Failure Speci- fied. It was also held that the words importing failure of issue would not be held to refer to the issue previously mentioned if such failure was in terms or by clear infer- ence restricted to failure by the death of the parent, be- cause the referential construction was given only to save the gift over. 8 § 644. Following Implied Power of Appointment to Issue Living. 2. When the words importing a failure of issue were preceded by a power implying a gift to the issue of the donee living at his death, in default of ap- pointment under the power, the words in question were held to refer and be restricted to the issue before referred to; for example, if the gift was to A for life, and after his death to such of his issue as he should by will appoint, but if he should die without issue, then to B, definite failure of issue was understood, whether the property in question was real or personal. 9 T 2 Bigelow's Jarman •1311 ; Parr only Issue left were grandchildren of t. Swindles (1S28), 4 Russ. (4 Bng. D. The court held the grandchildren Ch.) 283; Doe d. Gallini v. Galllnl could not take, because the gift was (1835), 3 Ad & El. (30 E. C. L.) 340. only to children; and that the gift 8 Applying this reasoning in West- over did not operate, for that was only wood v. Southey (1852), 17 Simons in case of death without issue. A num- Ch. (42 Eng. Ch.) 192, to a gift of the ber of decisions were discussed, and income of £3,000 to W for life, re- Turner, L. J., said: "If the primary mainder to his children equally on at- limitation be in favor is children, and taining 21, and if W should die without be so expressed that they take imme- issue, then to his brother and sister or diate vested interests, and there be a the survivor of them, it was held limitation over in default of issue, it that, although W survived the testator Is not difficult to see the reasons for and had issue, the gift over took ef- construing default of issue to mean feet on the death of W without issue default of children; for if there be no surviving him. See also Tookey's child there can be no other issue, and Trust (1851), 21 L. J. Ch. 402; Ex if there be a child, the child will take parte Hooper (1852), 1 Drewry 264. the whole, and there will be nothing to In Pride v. Fooks (1858), 3 DeGex limit over; but where the primary limi- & J. (60 Eng. Ch.) 252, 4 Jur. (n. s.) tation is so expressed that there may 678, a residue was given to such chll- be issue who may not take under it, dren as testator's nephews should as in case of gifts to children to vest leave at their deaths, one-third to the at twenty-one, it is not so easy to see children of W, the rest to the chil- the reasons on which this construction dren of T and D, but If ail these has prevailed." nephews died "without leaving any is- 9 2 Bigelow's Jarman *1337 ; Target sue," then over to G's children. The v. Gaunt (1718), 1 P. Wms. 432, 10 646 WILLS. 432 § 645. Referring to Testator's Issue. 3. When a tes- tator having no issue devised property in default or on failure of issue of himself, he was understood to make a devise contingent on his leaving no issue surviving him- self. 10 §646. Connected with Some Event Personal to the First Taker. 4. A devise over if the first taker should die under a specified age and without issue does not con- fine his devise to an estate tail with a contingent remain- der over depending on his death under age, but leaves the fee simple in him, subject to be divested in favor of the executory devise over if he dies under the specified age without issue surviving him, and this was always so. 11 When dying without issue was combined with an event personal to the individual, such as dying unmarried and without issue, it was held to mean without issue surviv- ing him, as to both real and personal property. 12 Mod. 402, Glib. Eg. Cas. 149; Hockley v. Mawbey (1790), 1 Ves. Jr. 143, 3 Brown Ch. 82; Eastwood v. Aviaon (1869), L. R. 4 Exch. 141, 38 L. J. Ex. 74, applying the same rule though the power to appoint 'followed the expres- sion restricted ; Whltelaw v. Whltelaw (1880), L. E. Ir. 5 Ch. 120. io 2 Blgelow's Jarman »1326 ; French v. Caddell (1765), 3 Brown P. C. (Tom.) 257. Lytton v. Lytton (1793), 4 Brown Ch. 441; Wellington v. Wellington (1768), 1 Wm. Bl. 645, 4 Burrows 2165 ; Sanford v. Irby (1820), 3 B. & Aid. (5 E. C. L.) 654. See also Eye's Matter (1852), 10 Hare (44 Eng. Ch.) 106, 22 L. J. Ch. 345, 16 Jur. 1128, 1 W. E. 29. li 2 Bigelow's Jarman **1328, 1334 ; Bell T. Scammon (1844), 15 N. Hamp. 381, 41 Am. Dec. 706. The contrary was held In : SouIIe v. Oerrard (1596), Cro. Ellz. 525. In Sayward v. Sayward (1831), 7 Me. 210, 22 Am. Dec. 191, a devise over In case of dying under age and without issue was held not to defeat the first estate on death without Issue after becoming of age. In Eastman v. Baker (1808), 1 Taunton 174, land was devised to J forever "but if my daughter shall for. tune to die, and not attain the full age of 21 years, or having no such issue" then over. J died without issue after majority. Per Mansfield. Ch. J., held that J took a fee not divested by such death, because "or" meant "and." In Grey v. Pearson, 6 H. L. Cas. (1857) 61, land was devised in tall with limitation over in case the tenant in tail should die under age and with- out issue. He died after majority but without issue. Held, that the devise over did not take effect, "and" being conjunctive, Lord St. Leonards dissent- ing. 12 2 Bigelow's Jarman, ••1328-1334; Downing v. Wherrin (1848), 19 N. Hamp. 9, 49 Am. Oec. 139, "If my son, J., should not marry and have lawful issue.'' Delhi v. King (1820), 6 Serg. & E. (Pa.) 29, 9 Am. Dec. 407, "unmarried and without issue." "Or" without issue. In Matlack v. Roberts (1867) 54 Pa. St 148, "un- married or without issue" was held to mean Indefinite failure of issue as to land. Followed on similar facts In Barber v. Pittsburgh &c. Ry. (1897), 166 U. S. 83, 17 S. Ct 488. 433 ESTATES UPON CONDITION. § 647 § 647. When Combined with Collateral Events Fixing Time. 5. When dying without issue was restricted to some event collateral to the devisee, such as dying with- out issue in the life time of B, it was held to mean extinc- tion of his issue by the time of B's death. 13 § 648. Certain Words Limiting the Time. 6. Dying without issue "living" was held to mean living at the death of the ancestor, whether the property in question was real or personal. 14 7. Without leaving "issue behind him" was held to mean issue living at his death, whether the property was real or personal. 18 8. Dying without "leaving" issue, was generally held to mean definite failure of issue when applied to person- alty, 16 but not when applied to realty, 17 though the very same words passed chattels also. 18 § 649. Confined by Nature of Subject or Gift Over. 9. The terms and subject-matter of the devise over were held to restrict the meaning to definite failure: a, when the devise over was charged with the payment of certain legacies to be paid within a specified time after death, 19 or though no time for the payment of the charges was specified; 20 b, if the devise or bequest over was to be en- 13 2 Blgelow's Jarman *1329 ; Pells 143. Chancellor Kent criticised this v. Brown (1620), Cro. Jac. 590. decision in Anderson T.Jackson (1819), In Crowder v. Stone (1827), 3 Rubs. 16 Johns. (N. Y.) 382, 8 Am. Dec. 330, (3 Eng. Ch.) 217, the time of failure 346. was held to be restricted by the time 16 Griswold v. Greer (1855), 18 Ga. specified for division. 545; Allender v. Sussan (1870), 33 In Jarman v. Vye (1866), L. E. 2 Md. 11, 3 Am. Rep. 171. Eq. Cas. 784, 35 L. J. Ch. 821, 14 W. 17 Doe d. Cadogan v. Ewart (1838), R. 1011, land was devised after 1837 7 Ad. & EI. (34 E. C. L.) 636, and to A for life, and If he should die many decisions therein reviewed ; without issue In the lifetime of B, then Grimes v. Shirk (1895), 169 Pa. St over. A died leaving issue, which 74, 78, 32 Atl. 113. afterward died before B. Held, that 18 Forth v. Chapman (1720), 1 P. the gift over took effect. Wms. 663. 14 Glover v. Condell (1896), 163 111. i» 2 Blgelow's Jarman »1330; Nlch- 566, 585, 45 N. E. 173, 35 L. R. A. 360, ols v. Hooper (1712), 1 P. Wms. 198, personalty. 2 Vera. 686. Surviving. Die leaving no "surviving 20 Doe d. Smith v. Webber (1818), issue" was held to have the same ef- 1 Barn. & Aid. 713 ; Doe d. King v. feet. DeWolf v. MIddleton (1893), 18 Frost (1820), 3 Barn. & Aid. (5 E. C. R. I. 810, 26 Atl. 44, realty. Contra: L.) 546; and in both of the above cases Burrough v. Foster (1860), 6 R. I. 534, It was held that the first estate was realty. not reduced to an estate tail, but was 15 Porter v. Bradley (1789), 3 Term a fee with executory devise over. 28 649 WILLS. 434 "on" the death, of the first joyed "from," "at," or devisee, 21 which construction Jarman thought was in- duced by the desire of the courts to give effect to the de- vise over, and therefore would not apply if the first de- vise was expressly for life only; 22 c, when the gift over was for life only; 23 d, when it was to the "survivors" of persons in being when the testator died, to be divided among them on death of any of them without issue, the property being either personalty, 24 or realty, 25 but this 21 Doe d. King v. Frost (1820), 3 B. & Aid. (5 E. C. L.) 546 ; Coltsmann v. Coltsmann (1868), L. R. 3 H. L. Rep. 121. After. But the words "after his death" are not quite so strong. Jones v. Ryan (1846), 9 Ir. Eq. R. 249; Parker v. Blrks (1854), 1 Kay & J. 156, 165, per Wood, V. C. See also: Downing v. Wherrln (1848), 19 N. Hamp. 9, 49 Am. Dec. 139, citing many cases; Wilson v. Wilson (1890), 46 N. J. Eq. 321, 19 Atl. 132. Then. The word "then" in the ex- pression, lor example, "if he should die without issue then to B," has been held to be an adverb of time, restrict- ing the meaning to definite failure of issue. Pinbury v. Elkin (1719), 1 P. Wms. 563, "then after" as to a legacy ; Harris v. Smith (1855), 16 Ga. 545; "then and in that case," as to land and goods; Sanford v. Sanford (1877), 58 Ga. 259, same point ; Strain v. Sweeny (1896), 163 111. 603, 45 N. E. 201, holding "then" to restrict words as to land ; Snyder's Appeal (1880), 95 Pa. St. 174, holding "I then give" to restrict as to legacy ; Delhi v. King (1820), 6 Serg. & R. (Pa.) 29, 9 Am. Dec. 407, "then and In that case," as to land; Den v. Snitcher (1833), 14 N. J. L. 53, 67 ; De Wolf v. Middleton (1893), 18 R. I. 810, 26 Atl. 44, as to land; Timberlake v. Graves (1818), 6 Munf. (Va.) 174. Contra: But in other cases it has been held that "then" is only a con- nective of the preceding and consequent clauses, not preventing the inference that Indefinite failure of issue was in- tended. Soulle v. Gerrard (1596), Cro. Ellz. 525; Beauclerk v. Dormer (1742), 2 Atk. 308; Chism v. Williams (1860), 29 Mo. 288, 296, reviewing several cases; Bryson v. Davidson (1806), 1 Murphey (5 N. Car.) 143; "then and in that case," argued at length ; and see Porter v. Ross (1855), 2 Jones Bq. (55 N. Car.) 196, "then and in that case," not noticed in the opinion ; Mangum v. Piester (1881), 16 S. Car. 316, 329. As Applied to Personalty, the words "at," "on," "from," and even "after," were held quite clearly to re- strict the expression to Issue living at death. Pinbury v. Elkin (1718), 1 P. Wms. 563, 2 Vern. 758, Pre. Ch. 483; Trotter v. Oswald (1787), 1 Cox Ch. 317; Wilkinson v. South (1798), 7 Term 555. 22 2 Bigelow's Jarman *1332. 23 Pells v. Brown (1620), Cro. Jac. 590; Roe d. Sheers v. Jeffery (1798), 7 Term 589; Taylor v. Taylor (1870), 63 Pa. St. 481, 485, by Sharswood, arguendo, quoting from Eichelberger v. Barnitz (1840), 9 Watts (Pa.) 447, 450. But this doctrine was held not to ap- ply if any of the devises or bequests over were of more than a life estate. Barlow v. Salter (1810), 17 Ves. 479. 24 Hughes v. Sayer (1718), 1 P. Wms. 534 ; Westwood v. Southey (1852), 17 Simon (42 Eng. Ch.) 192, 202; Glover v. Condell (1896), 163 III. 566, 585, 45 N. B. 173, 35 L. R. A. 360, personalty. Addition of Words of Limitation. The presumption In favor of limiting the construction to definite failure was held to be repelled even in the case of personal property if words of limita- tion were added, showing that it was not a mere personal benefit that was intended. Massey v. Hudson (1817), 2 Meriv. 130, 134, followed in Shephard v. Shephard (1846), 2 Rich. L. (S. Car.) 142, 46 Am. Dec. 41. 25 Fearne on Contingent Rem. 369 ; 435 ESTATES UPON CONDITION. 650 was denied; 28 e, when it was to persons who "shall be living at the time," provided it was so framed as to ex- clude all persons born after the death of the testator; 27 f, when it was charged with a personal trust and confi- dence, or for the payment of the testator's debts. 28 G. Simple Death as a Contingency. § 650. Possible Meanings. If anything is certain in life it is death. "No man can with propriety speak of death as a contingent event, which may or may not hap- Gee v. Llddell (1866), L. R. 2 Bq. Caa. 341; Jackson v. Chew (1827), 12 Wheaton (25 U. S.) 153, governed by New York decisions ; Forman v. Troup (1860), 30 Ga. 496, 498; Summers v. Smith (1889), 127 111. 645, 650, 21 N. E. 191; Threadgill v. Ingram (1841), 1 Ired. L. (23 N. Car.) 577, and cases cited; Porter v. Ross (1855), 2 Jones Eq. (55 N. Car.) 196; Fosdick v. Cor- nell (1806), 1 Johns. (N. Y.) 440, 3 Am. Dec. 340 ; Jackson v. Staats (1814), 11 Johns. (N. Y.) 337, 6 Am. Dec. 376; Deihl v. King (1820), 6 Serg. & R. 29, 9 Am. Dec. 407, "in such case * * * amongst all my children." In Presley v. Davis (1854), 7 Rich. Eq. (S. Car.) 105, 62 Am. Dec. 396, the court declared that a gift over to the survivors ties up the generality of the expression, and held the words in that case (among the remainder of the aforesaid children) had the same effect. * Effect of Abolishing Estates Tail. In Lewis v. Claiborne (1821), 5 Yerger (13 Tenn.) 369, 26 Am. Dec. 270, the will was, "shall either of my daughters be dead, or die without Is- sue, that the before-mentioned lands shall be divided between the surviving ones ;" and the court said : "If we ask what was the meaning of the testator, all mankind will give the same answer. It was that if one of the four should die, without issue living at her death, that her share should go to the sur- vivors. It Is said that the law will not suffer this Intent to take effect, because In England, 'die without Is- sue' can not make a fee, for that would be alienable lnstanter, and disappoint the issue ; whereas the Intent was that it should go to the Issue; which no otherwise can be effected than by con- struing these words to be an estate tail. • • • But here it cannot go to them, though it be an estate tail, which the law Instantly converts into a fee. * * • If it be asked why, in the case of personalty, these words are constrained by a limitation over to survivors, but in realty not, the answer is that in personalty they cannot make an estate tall, there being no such estate in a chattel. Then If there be no such estate in realty In this state since 1784, will not the word 'survivors' be restrictive in the latter case as well as in the former?" The court held the word "survivors" restrictive. See also Anderson v. Jackson (1819), 16 Johns. (N. Y.) 382, 8 Am. Dec. 330. 26 "Surviving" Held not to Restrict. Though surviving has generally been held to restrict the meaning to definite failure of issue, especially in the case of personalty, the following decisions deny that it should be given that ef- fect, in case of land at least : Jackson v. Dashiel (1852), 3 Md. Ch. 257; Hoxton v. Archer (1831), 3 Gill A J. (Md.) 199, 212; Nowlin v. WInfree (1852), 8 Gratt. (Va.) 346; Tinsley v. Jones (1856), 13 Gratt. 289. 27 Jones v. Cullimore (1857), 3 Jur. (n. s.) 404; Gee v. Llddell (1866), L. R. 2 Eq. Cas. 341. 28 Fearne on Remainders 482 ; 2 Blgelow's Jarman '1335 ; Kelly v. Fowler (1768), 3 Brown P. C (Tom. ed.) 299, Wilmot 298. But see the observations of Lord Thurlow In Blgge v. Bengley (1783), 1 Brown Ch. 187. § 651 WILLS. 436 pen. When therefore a testator so expresses himself, the question is, what he means by that inaccurate expression. He may perhaps have had some contingency in his mind; as, that the legatee had died at the time he was making the will, or might be dead before his own death, Or, be- fore the legacy should be payable; and then the inaccu- racy consists in not specifying the period, to which the death was to be referred. He might have meant to speak generally of the death, whenever it might happen; and then the contingent or conditional words must -be re- jected; and words of absolute signification must be intro- duced. And accordingly, in every instance in which these words have been used, the courts have endeavored to col- lect from the nature and circumstances of the bequest and the context of the will, in which of these two senses it is most likely this doubtful and ambiguous expression was employed." 29 § 651. Refers to Testator's Death in Immediate Gifts. In the absence of anything to show a different intention it must be presumed that the testator had something con- ditional in mind, and not death at any time, which would be more accurately expressed by unconditional words, such as "at" or "upon" death, or the like. 30 Therefore, death before the testator makes the gift over effective; 31 and, no other event appearing to have been in his mind, it must also be presumed that the condition to which he referred was death before himself; and therefore if the donee survives him and the estate is to be immediately enjoyed, death afterwards will not defeat it nor give the limitation over effect. 32 § 652. Rules When the Gift is not Immediate. The 29 Cambridge v. Rous (1802), 8 Vei. 82 Barber v. Pittsburgh &c. Ry. 12, 2J. (1896), 166 U. S. 83, 101, 17 S. Ct so Brown v. LIpplncott (1891), 49 488; Jones v. Webb (1877), 5 Del. Ch. N. 3. Eg. 44, 23 Atl. 497. 132, reviewing numerous cases ; Fish- 31 Grant v. Mosely (1899, Tenn. back v. Joestlng (1900), 183 111. 463, Ch.), 52 S. W. 508, It being claimed 56 N. H. 62; Brlggs v. Shaw (1865), that the gift over "If she be dead" re- 9 Allen (91 Mass.) 516; Brown v. Llp- ferred only to death before the will plncott (1891), 49 N. J. Eq. 44, 23 Atl. was made. See also post { 695. 497. 437 ESTATES UPON CONDITION. § 653 same has been held in cases in which the enjoyment was to be only after some period or preceding estate; 83 but in England and several of our states it has been held that if the gift is not to be enjoyed immediately, "in case of death," and similar expressions, refer to death at any time before enjoyment, though after the death of the tes- tator; 34 yet, even then, the estate is not defeated by death after that time. 88 H. Death Coupled with a Contingency. § 653. Means Death at any Time. When a gift over is made to take effect only in case of the death of the first taker, conpled with some other event uncertain in its na- ture, as death without issue, death unmarried, death un- der age, and the like, the English courts, the Supreme Court of the United States, and several of the state courts, hold this to mean death at any time, either before or after the death of the testator. So that the gift over takes effect on death under the circumstances indicated, be- fore the testator dies; 36 and takes effect and operates to defeat the preceding estate if death under the circum- stances named occurs after the death of the testator, whether such preceding estate was immediately to be enjoyed on the death of the testator, 37 or only at the end of some specified period or preceding estate, and whether in fact postponed thereby, 38 or becoming immediate by 33 Johnes v. Beers (1889), 57 Conn, taker "under age and without" chll- 295, 18 Atl. 100 ; Aspy v. Lewis dren, though after the testator died ; (1899), 152 Ind. 493, 52 N. B. 756, Mullreed v. Clark (1896), 110 Mich. to L "at the death or marriage of my 229, 68 N. W. 138; Eldred v. Shaw wife, provided she shall be living," (1897), 112 Mich. 237, 70 N. W. 545; held to mean surviving the testator; Buchanan v. Buchanan (1888)^99 N. Patton v. Ludington (1899), 103 Wis. Car. 308; Shepard v. Shepard (1887), 629, 79 N. W. 1073, "the issue of any 60 Vt. 109, 14 Atl, 536, holding the deceased child taking by representa- gift over took effect on death after the tion." testator, without children ; McMillan v. 34 Hawkins on Wills (2 Am. ed.) McMillan (1900), 27 Ont. App. (Can.) •255 209. 3= Crane v. Bolles (1892), 49 N. 3. sl ^ InClUdeS Death AftCT P ° SSeS - Eq. 373,381, 24 Atl. 237. Illinois— Summers v. Smith (1889), 36 See post §§ 686-695. 127 III. 645, 649, 21 N. E. 191, holding 37 Britton v. Thornton (1884), 112 that "In case any * • • should TJ. S. 526, 533, holding that the estate die without heirs of his body" meant over took effect on death of the first such death at any time.. § 654 WILLS. 438 the lapse of the preceding estate or otherwise, 39 unless such death at an earlier time appears to have been in- tended. 40 Under this rule it is held that a devise defeas- ible on death without children does not become absolute by the devisee having children living after the testator's death." § 654. Gift Over in Either Event. If an immediate gift apparently absolute is followed by a gift over in case of death without issue, and to the issue in case of death leaving issue, death before the testator is understood by all courts; becausfe death must be with or without is- sue, and an absolute gift is not to be reduced to a less es- tate by implication. 42 § 655. Means Death Before Distribution. Other courts hold that when death, coupled with some event in its nature contingent, is spoken of, death before the time for enjoyment is to be understood. They hold that if the gift is immediate the gift over takes effect on death Massachusetts — Dorr v. Johnson *o Intent Appearing. Besant v. Cox (1898), 170 Mass. 540, 49 N. B. 919. (1877), 6 Ch. D. 604, 25 W. R. 789; Mississippi — Sims v. Conger (1860), Donnell v. Newberryport Hos. (1901), 39 Miss. 231, 77 Am. Dec. 671. 179 Mass. 187, 60 N. E. 482; Beams Missouri— Naylor v. Godman (1891), v. Spann (1887), 26 S. Car. 561, 2 109 Mo. 543, 19 S. W. 56, a gift for S. E. 412. life, remainder to the children, but In « Defeasible After Surviving With case of death without issue then to his Children. Pickard v. Booth (1900), 1 survivors; Rothwell v. Jamison (1899), Ch_ D. 768, 69 Law J. Ch. 474, 48 147 Mo. 601, 49 S. W. 503, to S and W. E. 566; Vanluven v. Allison (1901), her children and if she should die 2 Ontario L. E. 198. without issue over, dictum. But when the gift is for life remain- Ohlo— Durfee v. MacNeil (1898), 58 der over to the children, it vests in the Ohio St 238, 50 N. E. 721. children on their birth, and would not „ ,, n—i... De d'vested by their death before the North Oorolteo-Galloway v. Carter , lfe tenant FleM y pe (1888), 100 N. Car. Ill, 5 S E. 4 lg() Iu g4 N ffi prQ stress being laid on the condition of A j the testator's family as well as the \ 2LeadUg oase-Gee v. Mayor *c. language ot the will. (1852), 17 Q. B. (79 B. C. L.) 737, a South Carolina — Selman v. Eobert- leading case; Thresher's Appeal son (1896), 46 S. Car. 262, 24 S. E. (igoi), 74 Conn. 40, 49 Atl. 861; 187; Marshall v. Marshall (1894), 42 wi n s ,_ wiI]g (1887), 85 Ky. 486, 3 S. Car. 436, 20 S E. 298. s. yj. 900 ; Johnson's Petition (1901), 89 0'Mahoney v. Burdett (1874), L. 23 E. 1. Ill, 49 Atl. 695, and cases E. 7 H. L. E. 388, 31 Tj. T. 705, 12 reviewed in O'Mahoney v. Burdett Moake 22, 23 XV. E. 361, an Important (1874), £,. B. 7, H. L. R 388, 396, and much cited case, holding that the and New "York, L. & W. Ey. Co., In re gift over took effect on death without (1887), 105 N. T. 89, 11 N. B. 492, 59 children after the testator. Am. Rep. 478. 439 ESTATES UPON CONDITION. § 656 before the testator, and that if the gift is postponed death after the testator but before the termination of the prior estate divests the primary gift and makes the limi- tation over effective. 43 Thus far these courts agree with the decisions cited in the preceding sections. They differ in holding that such death after the termination of the prior estate will not give effect to the substitute nor de- feat the primary gift. If a gift is made to A for life, remainder to B in fee, provided that if B shall die with- out children the estate shall go to C, they hold that the death of B without ever having had any children will not defeat his estate if he survived the life tenant. They hold the same of all similar provisions connected with death as a contingency; 44 unless a different intention is found from the will. 45 §656. Means Death Before the Testator. On the other hand, a number of courts are influenced by the preference of the law for immediate vesting of estates, to reach an opposite conclusion; and presuming that the provision was inserted to avoid lapse, restrict the words somewhat within their natural import, and hold that if to a gift apparently absolute in the first instance a gift over is added to take effect in case of the death of the first without issue, under age, unmarried, or the like, such death before the testator is to be understood. So that the gift over has effect on death without issue before the testator, 46 and does not operate to defeat the first if death without issue, or the like, occurs afterwards, 43 Lewis v. Shropshire (1902, Ky.), 59 S. W. 854; Weakley v. Hanna 68 S. W. 426, and cases there cited; (1899, Ky.), 51 S. W. 570; Lee v. Tuttle v. Woolworth (1901), 62 N. J. Mumford (1898, Ky.), 44 S. W. 91; Eq. 532, 536, 50 Atl. 445; Dawson v. McDowell v. Stiger (1899), 58 N. J. Shaefer (1894), 52 N. J. Eq. 341, 30 Eq. 125, 42 Atl. 575; Williamson v. Atl. 91. Such ia declared to be the Chamberlain (1855), 10 N. J. Eq. (2 rule in the cases cited in the next note Stock), 373; McCormick v. McEIli- below, though not necessary to the de- gott (1889), 127 Pa. St. 230, 17 Atl. cisions in the cases then before the 896, 14 Am. St. Rep. 837; Andrews v. court. See also Denton, In re (1893), Sargent (1899), 71 Vt. 257, 44 Atl. 137 N. Y. 428, 33 N. E. 482. 341. 4* Indefeasible after Possession. « Cooksey v. Hill (1899), 106 Ky. Sumpter v. Carter (1902), 115 Ga. 893, 297, 50 S. W. 235, 4 Pro. E. A. 502. 12 S. E. 324, 60 L. R. A. 274 ; For- 46 See post. § 695. sythe v. Lansing (1900), 109 Ky. 518, §657 WILLS. 440 whether such preceding estate was to vest and be en- joyed as soon as the testator died, 47 or only after the ter- mination of some period or preceding estate, and whether such preceding estate operated in fact to postpone the enjoyment, 48 or not, 49a unless death at a later time ap- pears to have been intended; and as death at any time is the more natural meaning, slight circumstances will suffice to give the language its natural import. 49 § 657. This Rule Does Not Apply if the first gift is for life only. If a gift is made "to A for life, remainder to his children, and if he dies without issue, then to B," B will take though A survives the testator, unless A had « Defeasible Only on Death Be- fore Testator. Connecticut — Walsh v. McCutcheon U898), 71 Conn. 283, 41 Atl. 813; Phelps v. Phelps (1887), 55 Conn. 359, 11 Atl. 596; Phelps v. Bates (1886), 54 Conn. 11, 5 Atl. 301, 1 Am. St. Rep. 92. Indiana — Morgan v. Eobblns (1899), 152 Ind. 362, 53 N. E. 283; Fowler v. Duhme (1895), 143 Ind. 248, 260, 4*2 N. B. 623; Bssick v. Caple (1892), 131 Ind. 207, 30 N. E. 900, holding that death of all of devisee's children before her did not give effect to a lim- itation over "in the event my daughter should die having no heirs born to her." Iowa — Collins v. Collins (1902), 116 Iowa 703, 88 N. W. 1097. Ne%o York — Quackenbos v. Kings- land (1886), 102 N. Y. 128, 6 N. E. 121, 55 Am. Rep. 771 ; Washbon v. Cope (1895), 144 N. T. 287, 39 N. E. 388, and cases cited ; Stokes v. Weston (1894), 142 N. Y. 433, 37 N. B. 515. Pennsylvania — Stevenson v. Fox (1889), 125 Pa. St. 568, 17 Atl. 480, 1A Am. St. Rep. 922 ; Morrison y. Truby (1891), 145 Pa. St. 540, 22 Atl. 972; Mickley's Appeal (1880), 92 Pa. St. 514; Mitchell v. Pittsburg, Ft. W. & C. Ry. (1895), 165 Pa. St. 645, 31 Atl. 67, "In the event of A dying un- married, or, if married, dying without offspring" ; Flick v. Forest Oil Co. , (1898), 188 Pa. St. 317, 41 Atl. 535. Vermont — Chaplin v. Doty (1888), 60 Vt. 712, 15 Atl. 362. Virginia — Peyton v. Perklnson (1900), 98 Va. 215, 35 S. E. 450. But see Barber v. Pittsburg &c. Ry. (1897), 166 U. S. 83, 17 S. Ct 488, and cases cited. isShadden v. Hembree (1888), 17 Ore. 14, 18 Pac. 572 ; Benson v. Cor- bln (1895), 145 N. Y. 351, 40 N. E. 11 ; Katzenberger v. Weaver (1903), — Tenn. . 75 S. W. 937, in which the question is considered at some length. But see Denton, In re. (1893), 137 N. Y. 428, 33 N. E. 482; Lyons v. Ostrander (1901), 167 N. Y. 135, 60 N. E. 334. <8aLovass v. Olson (1896), 92 Wis. 616, 67 N. W. 605, to be paid after death of testator's wife, who died be- fore him ; Meacham v. Graham (1896), 98 Tenn. 190, 39 S. W. 12. 49 Blight Context Showing Intent. Moore v. Gary (1897), 149 Ind. 51, 48 N. E. 630; Jordan v. Hinkle (1900), 111 Iowa 43, 82 N. W. 426, "shall re- vert" ; Cramer's Matter (1902), 170 N. Y. 271, 63 N. E. 279; In re New York, L. & W. Ry. Co. (1887), 105 N. Y. 89, 59 Am. Rep. 478, 11 N. E. 492, because the devisee was an Infant and the gift over on her death without issue; Mead v. Maben (1892), 131 N. Y. 255, 30 N. E. 98 ; Swinburne's Peti- tion (1888), 16 R. I. 208, 14 Atl. 850; Webber v. Webber (1901), 108 Wis. «26, 84 N. W. 896. 441 ESTATES UPON CONDITION. § 658 children to take. The rule first stated applies only when a different construction would divest the prior estate. 60 I. Survivorship. a. GENERAL COMMENTS. §658. "Survivors"— Possible Meanings. When gifts are made to "my surviving children," "the survivors," or "to those living," or the like, without naming any time, it is still clear that some time was in the mind of the testator, for men survive only a little while. Did he mean those surviving when the will was made, when he should die, when someone named in the will should die, when all but two of the class or persons named should be dead, or those surviving some other event? If someone who might take dies before or after the tes- tator it may be claimed by the rest that he was not a survivor, so that they take the whole; whereas it will be claimed on the other hand by those representing the one who died that he did survive the event and they are entitled to his share either through him or under the statutes to prevent lapse. b. GIFTS TO SURVIVORS NOT INCLUDED IN PRIOR GIFT. § 659. Original Rule. In the early English cases it was held that if a gift was made to "my surviving chil- dren," "to A for life, remainder to my surviving broth- ers," or the like, it meant those surviving the testator, though the gift was not to be enjoyed till after some period or prior estate ; B1 and it is still held in several of the states that "survivors," "surviving children," "if surviving," and the like, are to be understood to mean surviving the testator, whether the distribution is im- mediate, 82 or some time after the testator's death, 53 un- 80 Holllster v. Butterworth (1898), for a review of the old English cases. 71 Conn. 57, 40 Atl. 1044 ; Mullarky 52 Carpenter v. Hazelrigg (1898), v. Sullivan (1892), 136 N. V. 227, 32 103 Ky. 538, 45 S. W. 666. N. E. 762. B3 Georgia — Clanton v. Estes (1886), si See Hill v. Rockingham Bank 77 Ga. 352, 359, 1 S. E. 163 ; Craw- (1864), 45 N. Hamp. 270; Moore V. ford v. Clark (1900), 110 Ga. 729, 36 Lyons (1840), 25 Wend. (N. T.) 119; S. B. 404, 6 Pro. R. A. 15, holding a 660 WILLS. 442 less it appears that the testator had some other time in mind. 84 §660. Later English Rule. But this position was long ago abandoned in England and the rule adopted that survivorship unexplained refers to the time for dis- tribution, at the testator's death if to be made then, at bequest to "surviving children," which was contingent on the death of the life tenant without issue, to entitle all to share who survived the testator, though dying before the life tenant. Illinois — Grimmer v. Friederich (1896), 164 111. 245, 45 N. B. 498, "all the remainder shall be divided equally among my surviving children and their heirs." Indiana — Aspy v. Lewis (1899), 152 Ind. 493, 52 N. E. 756, including issue of child dying before life tenant, under gift of remainder "at the death or mar- riage of my wife, provided she be liv- ing" ; following Tindall v. Miller (1895), 143 Ind. 337; Harris v. Car- penter (1887), 109 Ind. 540, 10 N. B. 422; Hoover v. Hoover (1888), 116 Ind. 498, 19 N. B. 468, decided on simi- lar facts. Kentucky — Smith v. Miller (1898, Ky.), 47 S. W. 1074, to the widow for life, and at her death "to be equally divided between my then surviving children." Maryland — Branson v. Hill (1869), 31 Md. 181, holding that a gift to A for life, remainder to B and C or the survivor of them vested a remainder in B and C not divested by the death of either before the life tenant. Michigan — Porter v. Porter (1883), 50 Mich. 456, 15 N. W. 550, holding the widow of a son who died before the life tenant was entitled to a share. Ifew York — Moore v. Lyons (1840), 25 Wend. 119, reviewing many English cases; Stevenson v. Lesley (1877), 70 N. Y. 512, holding a gift in trust for the grandchildren and the survivors of them to be paid and conveyed to each on majority vested on the death of the testator in those then living, and was not liable to be divested by death under age. Pennsylvania — Patrick's Estate (1894), 162 Pa. St. 175, 29 Atl. 639; Johnson v. Morton (1849), 10 Pa. St. 245, 250; Ross v. Drake (1860), 37 Pa. St. 373, admitting the issue of one who died before the life tenant ; s. p., Barker's Appeal (1886, Pa.), 3 Atl. 377. Virginia — Allison v. Allison (1903), — Va. , 44 S. B. 904, 913 ; Stone v. Lewis (1888), 84 Va. 474, 5 S. E. 282, holding a gift "after the decease of my wife" the plantation shall be sold and the proceeds equally divided among my surviving brothers and sis- ters and the children of such as may be dead, vested on the death of the testator in those surviving him ; Jame- son V. Jameson (1889), 86 Va. 51, 9 S. E. 480, holding the administrator of a child that died before the tenant for life entitled, following Hansford v. Elliott (1837), 9 Leigh (Va.) 79. Express Substitution-Statutes as to Lapse. It has also been held that the statutes to avoid lapse apply to entitle children of one dying before the testator, though there was a gift over to the survivors in case any should die. Rivenett v. Bourquin (1884), 53 Mich. 10, 18 N. W. 537; Ruff v. Baumbach (1902), — Ky. , 70 S. W. 828. But see Eberts v. Eberts (1880), 42 Mich. 404, 4 N. W. 172. 54 Denton's Matter (1893), 137 N. T. 428, 33 N. B. 482 ; Kelso v. Lorill- ard (1881), 85 N. Y. 177; Lewis's Appeal (1902), 203 Pa. St. 219, 52 Atl. 208; Schuldt's Estate (1901), 199 Pa. St. 58, 48 Atl. 879; Woelpper's Appeal (1889), 126 Pa. St. 562, 17 Atl. 870; Relff's Appeal (1889), 124 Pa. St. 145, 16 Atl. 636; Vaughan v. Vaughan (1899), 97 Va. 322, 33 S. E. 603, holding children of deceased child not entitled to share among my children then living. Cheatham v. Gower (1897), 94 Va. 383, 26 S. E. 853, holding "and at his death to his surviving children" show such Inten- tion, Keith, P., dissenting. 443 ESTATES UPON CONDITION. 660 the death of the life tenant if to be made then, or when- ever distribution was to be made. 65 The American courts have generally followed the later English rule, that if the division is not postponed, all who survive the testator take, 56 excluding the issue of those who died before the testator, though after the will was drawn, 57 and that if there are intervening estates only those living when they terminate are survivors, 58 66 Young v. Robertson (1862), 8 Jur. (n. s.) 825. s. c. sub nom. Richard- son v. Robinson, 6 L. T. 75, a case in the House of Lords ; Wordsworth v. Wood (1847), 1 H. L. Cas. 129 ; Cripps v. Wolcott (1819), 4 Madd. 11, 25 Eng. Rul. Cas. 727. 56Hoadly v. Wood (1899), 71 Conn 452, 42 Atl. 263 ; Brimmer v. Sohier (1848), 1 Cush. (55 Mass.) 118, holding a gift of residue "to the sur- vivors of my brothers and sisters," there being three, meant those surviv- ing the testator, not the two who sur- vived the other ; Brown v. Lippincott (1891), 49 N. J. Eq. 44, 23 Atl. 497; Roundtree v. Roundtree (1887), 26 S. Car. 450, 2 S. B. 474, though a differ- ent construction of the same expression in another part of the will was re- quired. 57Bberts v. Eberts (1880), 42 Mich. 404, 4 N. W. 172, some dying before and some after the will was made, Graves, J., dissenting ; Prendergast v. Walsh (1899), 58 N. J. Eq. 149, 42 Atl. 1049, though it was claimed they were entitled under the statutes to avoid lapse. Contra: Ruff v. Baumbach (1902), — Ky. , 70 S. W. 828, 24 Ky. L. 1167, on a similar claim ; Rivenett v. Bourquin (1884), 53 Mich. 10, 18 N. W. 537, on a similar conten- tion. In Baldwin v. Tucker (1901), 61 N. J. Eq. 412, 48 Atl. 547, a bequest, "at the death of my said wife, » * * to my living children, or their heirs," was held to entitle issue of children dead when the will was made, the words being held to mean children liv- ing when the widow died and the heirB of those then dead. See also several English cases therein cited. 68 Exclude All Dying Before Pos- session. California — Winter, In re (1896), 114 Cal. 186, 45 Pac. 1063, holding a devise to surviving brothers after the death of the wife was not intended to Include any dying before the wife. Illinois — Blatchford v. Newberry (1880), 99 111. 11, denying petition for division during life of widow who re- nounced. Kentucky — B a y 1 e s s v. Prescott (1881), 79 Ky. 252, excluding repre- sentatives of those dying before the life tenant. Maine — Spear v. Fogg (1895), 87 Me. 132, 32 Atl. 791, holding that a gift of residue to M. and F. for life "and at their decease to descend to their children respectively, and to be equally divided among them or the sur- vivors of them," created contingent re- mainders which lapsed as to M's chil- dren by all dying before her. Maryland — Anderson v. Br o w n (1896), 84 Md. 261, 35 Atl. 937. Massachusetts — Coveny v. McLaugh- lin (1889), 148 Mass. 576, 2 L. R. A. 448, 20 N. E. 165, "but on her decease I give the same to my surviving chil- dren," following Denny v. Kettell (1883), 135 Mass. 138; Olney v. Hull (1838), 21 Pick. (Mass.) 311. New Hampshire — Hill v. Rockingham Bank (1864), 45 N. Hamp. 270, ex- cluding children of one dying after the testator but before the life tenant, cit- ing many cases. New Jersey — Dutton v. Pugh (1889), 45 N. 3. Eq. 426, 18 Atl. 207, affirmed in 21 Atl. 950, on the opinion of the court below (Dixon, J., dissenting), ex- cluding the representatives of children dying after the testator and before the life tenant; Slack v. Bird (1872), 23 N. J. Bq. 238, excluding the issue of a child that died after the testator but before distribution ; Williamson v. Chamberlain (1855), 10 N. J. Bq. (2 Stock.) 373, holding the gift not di- vested by death without Issue after- wards. §661 WILLS. 444 unless the context indicates a different intention. 69 § 661. Including After-born. While survive means to outlive, a gift to the children "who shall survive me" is held to include those who were not born till after the tes- tator died, his evident intent being to benefit all. 80 c. SURVIVORSHIP BETWEEN DONEES. § 662. Death Before Testator— Issue Sharing. A se- ries of most perplexing questions arises from gifts to several with provision that if any shall die his issue shall take his share, and that if any shall die without issue his share shall go to the survivors. If one dies before the tes- tator leaving issue, and later another dies before the tes- tator without issue, will the issue of the first deceased share with the survivors in the increase? 61 Ohio— Sinton v. Boyd (1869), 19 Ohio St. 30, 2 Am. Rep. 369; Smith V. Block (1876), 29 Ohio St. 488, 498. South Carolina — Selman v. Robertson (1896), 46 S. Car. 262, 24 S. E. 187; Roundtree v. Roundtree (1886), 26 S. Car. 450, 466, 2 S. B. 474, excluding children of one dying before the life tenant and holding sale under execu- tion of share of another before that time void, followed in Simpson v. Cherry (1891), 34 S. Car. 68, 12 S. E. 886, holding that a gift over to the un- married survivors did not take effect if there were none unmarried when the life tenant died. When the Life Estate Fails for any reason other than the death of the life tenant the remainders are accelerated, division made at once, and the sur- vivors are to be ascertained before the death of the life tenant, unless It ap- pears that the object in postponing the remainder-men was not merely to enable the life tenant to take. Blatch- ford v. Newberry (1880), 99 111. 11, 62; Grimmer v. Friederich (1896), 164 111. 245, 45 N. E. 498. " 'All the residue of said trust fund, In equal portions to my surviving nephews and nieces/ At the death of the testator, ten nephews and nieces were living; and one of the nephews afterwards died before the time came for the final distribution. The ques- tion Js, whether the legal representa- tives of the deceased nephew are en- titled. * * • The question to what period survivorship is to relate must depend rather on the apparent inten- tion of the testator, in each case, than upon any rigid rule. * * * The word 'surviving" more naturally relates to the time when the residue is to be ascertained and distributed." Denny v. Kettell (1883), 135 Mass. 138. Same effect Winter, In re (1896), 114 Cal. 186, 45 Pac. 1063. 09 As when the gift was to two or the survivor of them, which was held to vest absolutely in one on the death of the other before the life tenant. White v. Baker (1860), 2 De Gex F. & J. (63 Eng. Ch.) 55. eo Clarke's Estate (1864), 3 De Gex J. & S. (68 Eng. Ch.), Ill; Bailey v. Brown (1897), 19 R. I. 669, 681, 36 Atl. 581 ; 2 Pro. R. A. 513. ei In Davis v. Davis (1890), 118 N. T. 411, 23 N. E. 568, the gift was of land to three sons named "and the survivor or survivors of them in case either die before me without issue, and in case either die before me leaving issue, the share of such deceased child shall go to such issue." Two of the sons died before the testator, the first leaving Issue, and the other without lssne ; and In an action for partition it was held that the surviving son took two thirds, and the children of the other one third. 445 ESTATES UPON CONDITION. § 663 § 663. Death After Testator— Other Rules Affecting. Many of the cases in which gifts have been made to the survivors if any should die, have been determined by holding that death before the testator was meant. 62 But if the testator expressly refers to death after him, or the case arises in a court that so construes general expres- sions when not explained, will the issue of one previously dying, or dying after another donee but before division, participate with the survivors in the division of the share of one dying without issue? Such cases are numerous. § 664. Death After Testator and After Contingency Happens. It has generally been held that one who sur- vives the testator takes a vested interest in the share of any dying without issue before himself, which goes to his heirs if he dies before distribution, 63 and is not di- vested even by his death without issue before that time, though his original share thereby goes to the survivors; for the words of gift over are held to apply only to his original share, and not to the share that accrued to him by the death of another, 64 unless the testator's language most explicitly includes both. 68 § 665. Death After Testator but Before Contingency Happens. It has also been held that one who survives the testator then takes such a contingent interest in the shares of the others who may afterwards die without issue, that such share will descend to his heirs or distributees, and vest in them on the death after him of any of the primary «2 See ante §§ 650-2. rule there seems to be a distinct excep- 63 O'Brien v. O'Leary (1887), 64 N. tion established, and it is that "when Hamp. 332, 10 Atl. 697; Ive v. King a fund is left as an aggregate fund, (1852), 16 Beav. 46, 57. and made divisible among many lega- 64 West, Ex parte (1784), 1 Bro. Ch. tees, with the benefit of survivorship; 575, 1 P. Wms. 275 note ; Crowder v. in which case the whole fund may go Stone (1829), 3 Russ. (3 Eng. Ch.) to the last survivor." Worlidge v. 217; Clark, In re (1902), 38 Misc. 617, Churchhill (1792), 3 Brown Ch. 465; 78 N. T. S. 108; Hilliard v. Kearney Sprulll v. Moore (1848), 5 Ired. Eq. (1853), Busbee Eq. (45 N. Car.) 221; (N. Car.) 284, 49 Am. Dec. 428. McGee v. Hall (1887), 26 S. Car. 179, 65 As was held in Milson v. Awdry 1 S. E. 711, citing previous cases; (1800), 5 Ves. 465, 25 Eng. Bui. Cas. Henley v. Eobb (1888), 86 Tenn. 474, 708; Pain v. Benson (1744), 3 Atk. 7 S. W 190. 78; Lombard v. Whitbeck (1898), 173 Exception — Aggregate Fund. To this 111. 396, 51 N. E. 61. 665 WILLS. 446 donees without issue, 68 or may be disposed of by bis will. 87 In a few other cases the issue of those who have died have been held entitled to participate with the survivors in division of the share of one dying without issue, though not so explicitly placed on the ground that the right to participate had vested in the ancestor before death. 68 But it is generally held that the right to participate does not vest till the death without issue, and that neither the heirs and representatives of one who has died, nor his issue as substituted donees, are entitled to any part of the share of one afterwards dying without issue, and that the whole goes to the original donees then surviving. 89 ee Graves v. Spurr (1895), 97 Ky. 651, 31 S. W. 483, reviewing prior Kentucky cases, which are not entirely in harmony ; Birney v. Richardson (1837), 5 Dana (35 Ky.) 424. 67 Cummings v. Stearns (1894), 161 Mass. 506, 37 N. E. 758, the contest being between the executor and the children of his testator. Contra: Leppes v. Lee (1891), 92 Ky. 16, 17 S. W. 146. See also Whltesides v. Cooper (1894), 115 N. Car. 570, 20 S. B. 295. 68Wilmot v. Wilmot (1802), 8 Ves. 10; Bowman, In re (1889), 41 Ch. D. 525, 60 L. T. 888, 37 W. E. 583, citing several like previous decisions. Cooper v. Cooper (1887), 7 Houst. (Del.) 488, 31 Atl. 1043 ; Niles v. Almy (1894), 161 Mass. 29, 36 N. E. 582, in case of death of any to he "divided among the others." Presley v. Davis (1854), 7 Rich. L. (S. Car.) 105, 62 Am. Dec. 396, hold- ing that "if any of the aforesaid chil- dren should die * * * without lawful issue, then their portions are to he equally divided among the remain- der" entitled grandchildren to share whose parents died before the one dying without issue. Shepard v. Shep- ard (1887), 60 Vt. 109, 14 Atl. 536, holding that children of one previously dying since the testator were included in the gift over to "the sisters living" on the death of any without children, the first gift being to C, B and F, to them and their children. In Balch v. Pickering (1891), 154 Mass. 363, 28 N. E. 293, Holmes, J., In giving the opinion of the court, by which the children of the deceased donee were allowed to share, said : "Probably the testator did not have it in mind to deprive any set of grand- children of this secondary advantage because of the previous death of their parent. If that is the result of the words used it is an accidental result." In Howell v. Gifford (1903), 64 N. J. Eq. 180, 53 Atl. 1074, the words were "then the share of the surviving son » * * shall be paid said son or his heirs or legal representatives ;" and the court held the personalty to belong to the deceased son's next of kin, the real estate to his heirs. "9 Excluding Issue of Deceased Donees. England — Ferguson v. Dunbar (1781), 3 Bro. Ch. 469 note ; Crowder v. Stone (1829), 3 Russ. (3 Eng. Ch.) 217; Inderwick v. Tatchell (1901), 2 Ch. 738, 85 L. T. 432, 71 L. J. Ch. 1, 50 W. R. 100; Benn v. Benn (1885), 29 Ch. D. 839, 53 L. T. 240, 34 W. R. 6— C. A. Alabama — Phinizy v. Foster (1890), 90 Ala. 262, 7 So. 836. Kentucky — Best v. Conn (1873), 10 Bush (73 Ky.) 36. Maryland — Anderson v. Brown (1896), 84 Md. 261, 35 Atl. 937; Tur- ner v. Withers (1865), 23 Md. 18. Mississippi — Reber v. D o w 1 i n g (1887), 65 Miss. 259, 3 So. 654. Missouri — Naylor v. Godman (1892), 109 Mo. 543, 19 S. W. 56. New Hampshire — Hall v. Blodgett (1900), 70 N. Hamp. 437, 48 Atl. 1085 ; O'Brien v. O'Leary (1887), 64 N. Hamp. 332, 10 Atl. 697. 447 ESTATES UPON CONDITION. §665 On the death of the last but one his share would seem to become indefeasible, as there is no survivor to take. 70 Hew York — Jackson v. Blanahan (1808), 3 Johns. 292, 3 Am. Dec. 485; Wylie v. Lockwood (1881), 86 N. Y. 291 ; Hendricks v. Hendricks (1903), 78 App. Div. 212, 79 N. T. S. 516, two judges dissenting; Mullarky v. Sulli- van (1892), 136 N. T. 227, 32 N. B. 762. North Carolina — Skinner v. Lamb (1842), 3 Ired. L. (25 N. Car.) 155. Pennsylvania — Steinmetz's Estate (1900), 194 Pa. St. 611, 45 Atl. 663, 5 Pro. R. A. 467; Bartholomew's Es- tate (1893), 155 Pa. St. 314, 26 Atl. 550; Reiff's Appeal (1889), 124 Pa. St. 145, 16 Atl. 636. South Carolina — Bradley v. Rich- ardson (1902), 62 S. Car. 494, 40 S. B. 954. Tennessee — Bruce v. Goodhar (1900), 104 Tenn. 638, 58 S. W. 282. 70 In Brightman v. Brlghtman (1868), 100 Mass. 238, land was de- vised to two sons with an executory devise over to the survivor if either should die without issue. Both sur- vived the testator. Then one died leav- ing children. Then the other died without issue. Held that on the death of the first the estate of the other became absolute, since the condition then became impossible. CHAPTER XX. LAPSE AND SUBSTITUTION. 3. {666. General Statement. Lapse. §667. Lapse Defined. §668. When and Why Gifts Lapse. {669. Gifts Subject to Trust or Charge. {670. When Death does not Cause Lapse at Com- mon Law. §671. Residuary Clause — Lapsed Legacies. {672. Residuary Clause — Lapsed Devises. Statutes Providing for Substltu- tion. 8 673. Scope of the Statutes. 5 674. Interpretation of Words of Statutes. {675. Nature of Substituted Gift. {676. Application to Classes. 8 677. Persons Dead When Will Made. { 678. To What Estates the Statutes Apply. 8 679. Retroactive Effect of Statutes. Substitution by Provisions in the Will. 8 680. Nature and Kinds. 8 681. Questions Connected with Such Gifts. A. What Expressions Create Gifts Over. 8 682. "Or Heirs," "And Heirs," &c. 8 683. Same — Postponed Gifts. 8 684. Other Expressions Show- ing Substitution. B. Defeat of Substitute by Lapse of Primary Gift. { 685. How to Distinguish Substitutional from Primary After Gift to Class. { 686. Rule as to Original Gifts Generally. { 687. Rule as to Original After Gift to Class. { 688. Immediate Substitu- tional Gifts. { 689. Substitution for Parent Dead before Will Was Made. { 690. Reasoning in Christoph- erson v. Naylor. § 691. Objections to Above. 8 692. Postponed Substitutional Gifts. { 693. Same — Objections to Above. { 694. Lapse by Death of Sub- stituted Legatee. 8 695. Substitution After Pri- mary Gifts to Persons Named. !. Gift by Will to One Given by Codicil to Another. { 696. Context Revealing In- tention. >. Substitution of One Gift for Another to Same Per- son. { 697. Cumulative to Same Person. { 698. Substitutional to Same Person. I. Incidents of Substitutional Gifts. { 699. General Rule. { 700. Advances to Pri- mary Donee. {701. Additional Gifts. { 702. How Question Affected by Separation of Pro- visions. § 666. General Statement. 1. When devisees or lega- tees die before the testator the gifts to them lapse; and the property goes to the other members of the class if the deceased donee was one of a class, 1 to the other joint ten- i See ante {{ 478-480. 448 449 LAPSE AND SUBSTITUTION. § 667 ants if the gift was in joint tenancy; 2 otherwise to the residuary legatees if it was personalty, and to the testa- tor's heirs if it was land, except where statutes make lapsed devises also fall into the residue. 3 2. The disposition above indicated is prevented in certain cases by statutes which substitute someone else for the deceased devisee or legatee. 3. In many cases the disposition above indicated is prevented by substitution provided by the express terms of the will. Of these three propositions in the order named. 1. LAPSB.8 § 667. Lapse Denned. Lapse is a term generally used to designate the failure of a devise or legacy by reason of the death of the devisee or legatee before the testator, or afterwards before the interest vests. 4 § 668. When and Why Gifts Lapse. As wills have no effect till the death of the testator, the gift fails of ne- cessity if the donee has then ceased to exist; 5 or if no such person ever existed. 6 If the vesting is postponed to a still later time the gift fails for the same reason if there is then no one to take. 7 Being a rule of necessity, it applies though the gift was by a residuary clause, 8 2 See ante 5 479. stone v. Stanton (1818), 1 Ves. & B. 8 Note on Lapse, 94 Am. Dec. IBS- 385. 160. swells, In re (1889), 113 N. T. 4 1 Blgelow's Jarman *307. 896, 21 N. E. 137, 10 Am. St. Rep. Broader Meaning. And yet this 457, and note to last ; Logan v. Brun- seems to be a proper term to describe son (1899), 56 S. Car. 7, 33 S. B. 737. failure of the gift by reason of the eTwItty v. Martin (1884), 90 N. conditions precedent to the gift not Car. 643; Comfort v. Mather (1841), being performed, the destruction of 2 W. & S. (Pa.) 450, 37 Am. Dec. 523, the particular estate before the re- in which testator said the children mainder could vest, or the death of should have It See ante §463, 464, the donee of the power of appoint- 467, 475. ment before exercising the mere power. i Goebel v. Wolf (1889), 113 N. T. 1 Blgelow's Jarman *307, Crum v. 405, 21 N. E. 388, 10 Am. St. Rep. Bliss (1880), 47 Conn. 592; Mc- 464, and note to last; RoblnBon v. Greevy v. McGrath (1890), 152 Mass. Palmer (1897), 90 Me. 246, 38 Atl. 24 25 N. B. 29 ; Robison V. Female 103. O. A. (1887), 123 IT. S. 702; Dumber- s Bill v. Payne (1892), 62 Conn. 140, 26 Atl. 354. 29 § 669 WILLS. 450 whether the thing is realty or personalty, whether direct to the intended beneficiary who has died or to another in trust for him, 9 and though the testator expressly declared that there should be no lapse by reason of the death of the donee, 10 unless there be something to indicate who was intended by the testator to take instead of the first donee. 11 Lapse is not prevented by addition of words of limitation in the gift, as to A and his heirs; since these expressions were not added to designate anyone to take by way of substitution, but only to mark the duration of the original gift. 12 If the donee is a corporation, the gift will lapse by its dissolution before the testator, the same as if it were a natural person. 13 Lapse is not pre- vented by reason of the fact that part of the legacy was advanced during the life of the testator, 14 nor even by its being a gift to the debtor of what he owed the testator. 18 § 669. Gifts Subject to Trust or Charge. If a de- vise or bequest is given in trust, and the trust fails in whole or in part, for any cause, the trustee does not hold 9 Lombard v. Boyden (1862), 5 corporations see: Brooks v. Belfast Allen (87 Mass.) 249; Koezly v. (1897), 90 Me. 318, 38 Atl. 222; Koezly (1900), 31 Misc. 397, 65 N. Y. Board v. Ladd (1875), 26 Ohio St. S. 613. 210; Sheldon v. Stockbridge (1895), io Sibley v. Cook (1747), 3 Atk. 572, 67 Vt. 299, 31 Atl. 414. 25 Bng. Rul. Cas. 549 ; Pickering v. 14 University Trustees' Appeal Stamford (1797), 3 Ves. 492. Or (1881), 97 Pa. St. 187, 201. though it is apparent that the children is Elliot v. Davenport (1705), 1 P. were in his mind, and that he would Wms . 83> 2 Vera. 521, 25 Eng. Rul! have provided for substitution had the Cas . 547. Maitland v. Adair (1796), contingency occurred to him. Cure- 3 y es . j r . 2 31, and see notes. See also ton v. Massey (1866), 13 Rich. Eq. note on tnis point lu 94 Am Dec 158 104, 94 Am. Dec. 152. But see post S 682, note 71. Direction to Cancel. The contrary has been held of directions to the tes- 11 As in Sibley v. Cooke (1747), 3 tator's executors to deliver up securi- Atk. 572, 25 Eng. Rul. Cas. 549, by ties to be canceled. Slpthorp v. Mox- addlng "and to her executors or ad- ton (1747), 1 Ves. 49, 3 Atk. S80; ministrators." South v. Williams (1842), 12 Simon 12 What Words Show Gift Over and (35 Eng. Ch.) 566. when expressions commonly used as Qif ts to Pay Deota . As to gifts by words of limitation describe persons the testator in paymet of his own to take are matters considered later, aeDts to one who afterwards dies be- §§682-3. f 0re hi m see ward v. Bush (1900), 59 isCrum v. Bliss (1880), 47 Conn. N. J. Eq. 144, 45 Atl. 534; Sutro's 592; Merrill v. Hayden (1893), 86 Estate (1903), 139 Cal. 87, 72 Pac. Me. 133, 29 Atl. 949 ; Rymer, In re 827, "as a reparation" for an injury (1895), 1 Ch. D. 19. But as to public done her by a scandalous charge. 451 LAPSE AND SUBSTITUTION. § 670 discharged of the trust but under a resulting trust in favor of the heirs or next of kin of the testator, 18 if there was no residuary clause in the will, and under that if, there was one. 17 But on the other hand, if an estate ia devised charged with the payment of legacies, and the legacies fail, no matter how, the devisee has the benefit, and there is no resulting trust. 18 § 670. When Death Does Not Cause Lapse at Common Law. When a gift is made to several as joint tenants, or as a class, there is no lapse on account of the death of any member so long as any survive, but the survivors take all; 19 and the death of one of the tenants in common would cause only his share of the gift to lapse. When several are to take in succession, the succeeding devises do not lapse by the lapse of any preceding devise, pro- vided it or any intervening devise sufficient to support it is then capable of taking in possession. 20 A legacy charged on land devised does not lapse by reason of the death of the person to whom the land was devised, but the heir takes subject to the charge. 21 Death of the donee after the testator and after the vesting of the interest, 16 King v. Mitchell (1834), 8 Peters 19 See ante §479. (33 V. S.) 326; Olliffe v. Wells 20 See ante § 576. (1881), 130 Mass. 221; Sears v. 21 1 BJgelow's Jarman »314 ; Cady Hardy (1876), 120 Mass. 524, 541; v. Cady (1889), 67 Miss. 425, 7 So. Cheairs v. Smith (1859), 37 Miss. 646; 216; Gilroy v. Richards (1901), 26 Kobinson v. McDlarmid (1882), 87 N. Tex. Civ. App. 355, 63 S. W. 664; Car. 455. Wigg v. Wigg (1739), 1 Atk. 382. it Drew v. Wakefield (1865), 54 Me. Bo if the Devisee Refuses to take the 291; Mahorner v. Hooe (1848), 9 devise. Birdsall v. Hewlett (1828), 1 Sm. & M. (Miss.) 247, 48 Am. Dec. Paige Ch. (N. T.) 32, 19 Am. Dec. 392. 706. And see ante 5 521. But when the devisee refused to ac- lsMacknet v. Macknet (1873), 24 cept, it was held in Temple v. Nelson N. J. Eq. 277, 291. Not so if payment (1842), 4 Mete. (45 Mass.) 584, that of the charge was a condition and the land descended to the heirs free, motive of the gift. Kennedy, matter because the provision was a condition, of (1898), 25 Misc. 257, 55 N. T. S. not a charge. 427. When the Income of a legacy was So if the testator satisfies the directed to be paid to the legatee's charged legacy In his lifetime. Tanton father till his death, the charge In v. Keller (1897), 167 111. 129, 47 N. B. favor of the father was held to lapse 376. by the death of the legatee. Cook v. It is not always easy to determine Lannlng (1885), 40 N. J. Eq. 369, 3 whether the gift is in trust or subject Atl. 132. But see Oke v. Heath to a charge; as to which see: Sidney (1748), 1 Ves. Sr. 135. v. Shelley (1815), 19 Ves. 352. §671 WILLS. 452 though before the time for enjoyment, never caused lapse; but his heirs, devisees, or representatives took through him. M §671. Residuary Clause— Lapsed Legacies. A gen- eral residuary clause always carried to the residuary legatee all lapsed legacies. 62 Death of one taking by de- vise or legacy as joint tenant never caused lapse, 1 but lapse of part of the residue by death of one of the residu- ary legatees taking as tenants in common would not go to the other residuary legatees. It would go as intestate estate in the absence of substitution by the will or by force of the statute to avoid lapse. 63 22Hibler v. Hibler (1895), 104 Mich. 274, 62. N. W. 36i ; Goebel v. Wolf (1889), 113 N. T. 405, 21 N. B. 388, 10 Am. St. Rep. 464. «2 Lapsed Legacies to Residue. Illinois — Crerar v. Williams (1893), 145 111. 625, 34 N. B. 467. North Carolina — Sorrey v. Bright (1855), 1 Dev. & Batt. (18 N. Car.), 113, 28 Am. Dec. 584. Jfai»e— Stetson v. Eastman (1892), 84 Me. 366, 24 Atl. 868. Massachusetts — Thayer v. Welling- ton (1864), 9 Allen (91 Mass.) 283, 295, 85 Am. Dec. 753, 760. Michigan — Mann v. Hyde (1888), 71 Mich. 278, 39 N. W. 78. New York — Cruikshank y. Home for Friendless (1889), 113 N. T. 337, 21 N. E. 64, 4 L. R. A. 140 ; Benson, Mat- ter of (1884), 96 N. T. 499, 509. New Jersey — Molineaux v. Reynolds (1896), 55 N. J. Eq. 187, 36 Atl. 276. Texas — Lenz v. Sens (1901), 27 Tex. Civ. App. 442, 66 S. W. 110. After Payment. This rule is applied though the language of the will is "after payment of the above I give the rest," &c. Tindall v. Tlndall (1873), 24 N. J. Eg. 512, Mechem 97; Sorrey v. Bright (1835), 1 Dev. & Bat. (N. Car.) 113, 28 Am. Dec. 584; Riker v. Cornwell (1889), 113 N. T. 115, 125, 20 N. E. 6020. Contra: Davis v. Davis (1900), 62 Ohio St. 411, 57 N. E. 317. A be- quest of the rest of a fund was held to carry lapsed legacies that were pay- able out of that fund In English v. Cooper (1899), 183 111. 203, 55 N. E. 687. But see Kerr v. Dougherty (1880), 79 N. T. 327, 345, and Riker v. Cornwell (1889), 113 N. T. 115, 126, 20 N. E. 602. Lapse by Death after Testator. If the gift is postponed and the legatee dies after the testator but before vest- ing it goes to the residuary legatee. Koezly v. Koezly (1900), 31 Misc. 397, 65 N. Y. S. 613. l See ante § 479. 63 Lapse of Residue. Bendall v. Bendall (1854), 24 Ala. 295, 60 Am. Dec. 469; Lombard v. Boyden (1862), 5 Allen (87 Mass.) 249; Garth waite v. Lewis (1874), 25 N. J. Eq. 351; Canfield v. Canfield (1901), 62 N. J. Eq. 578, 50 Atl. 471, 7 Pro. R. A. 202 ; Kerr v. Dougherty (1880), 79 N. T. 327, 346; Whiting, In re (1900), 33 Misc. 274, 68 N. Y. S. 733; Gorgas's Estate (1895), 166 Pa. St. 269, 31 Atl. 86; Church v. Church (1885), 15 R. I. 138, 23 Atl. 302; Cureton v. Massey (1866), 13 Rich. Eq. (S. Car.) 104, 94 Am. Dec. 152 ; Harrington v. Pier (1900), 105 Wis. 485, 498, 82 N. W. 345, 76 Am. St. Rep. 924. But see Gray v. Bailey (1873), 42 Ind. 349. "The English rule, as we said In Gray's Estate, 147 Pa. St. 67, does not commend itself to sound reasoning, or to the preservation of the testator's actual intent ; but we found It recognized and accepted in our own cases before these particulars in its application arose, and we felt our- selves bound by It." Wain's Estate (1893), 156 Pa. St. 194, 27 Atl. 59. When General Legacy and Residue to Same Persona. In Dorsey v. Dod- 453 LAPSE AND SUBSTITUTION. §672 §672. Residuary Clause— Lapsed Devises. Lands given by devises which had lapsed did not go to the resid- uary devisee at common law ; 64 but now, by force of stat- utes enacted in most states, providing that after acquired real estate may be devised, 86 and of other statutes pro- viding that every devise in express terms of all reaj es- tate, or in any other terms denoting an intention to de- vise all, shall be construed to pass all the real estate he was entitled to dispose of at his death, and not otherwise effectually disposed of by his will, it is held that the resid- uary devise includes all land given by devises which have lapsed, as well as lands given by void devises. 68 But the common law rule seems still to prevail in several states, lapsed legacies going to the residue, and lapsed devises to the heirs. 87 Like legacies, what falls out of the residu- son (1903), 203 111. 32, 67 N. B. 395, the legatee who died was one of the residuary legatees and also had a 'gen- eral legacy in the body of the will, and it was held that the general legacy as well as the part of the residue which would have gone to her lapsed ; for otherwise the shares of the other resi- duary legatees would be enlarged by the smaller number to take, or else that a part of the legacy in the body of the will must be held to have lapsed twice, once in the body of the will and again in the residue. This de- cision finds support in Green v. Pert- wee (1846), 5 Hare 249; Craighead v. Given (1823), 10 Serg. & B. (Pa.) 351. 64 Lapsed Devises Not Go to Eesidue. Greene v. Dennis (1826), 6 Conn. 293, 16 Am. Dec. 58; Amphlett v. Parke (1831), 2 Eus. & M. (13 Bng. Ch.) 221; Moss v. Helsley (1883), 60 Tex. 426, 437 ; Gore v. Stevens (1833), 1 Dana (31 Ky.) 201, 25 Am. Dec. 141. A Distinction in this respect has been taken between void and lapsed devises, the residuary devisee being entitled to land given by void devise to another. Hayden v. Stoughton (1827), 5 Pick. (22 Mass.) 528; Doe a. Ferguson v. Eoe (1835), 1 Har. (Del.) 524; Doe d. Hearn T. Cannon (1869), 4 Houst. (Del.) 20, 15 Am. Eep. 701; Eooke v. Eooke (1703), 2 Vera. 461, Finch Pr. C. 202, 1 Freem. 219. Contra see Tongue v. Nutwell (1858), 13 Md. 415, 428. es See ante § 526. ee Lapsed Devises Go to Residue. California — Upham's Estate (1899), 127 Cal. 90, 59 Pac. 315. Indiana — Holbrook v. McCleary (1881), 79 Ind. 167; West v. West (1883), 89 Ind. 529. Maine — Drew v. Wakefield (1866), 54 Me. 291. Massachusetts — Thayer v. Welling- ton (1864), 9 Allen (91 Mass.) 283, 85 Am. Dec. 753. New York — Moffett v. Elmendorf (1897), 152 N. T. 475, 48 N. E. 1105, 57 Am, St. Eep. 529; Cruikshank v. Home for Friendless (1889), 113 N. Y. 337, 21 N. E. 64, 4 L. E. A. 140. New Jersey — Molineux v. Reynolds (1896), 55 N. J. Eq. 187, 36 Atl. 276. Pennsylvania — G r a y's E s t, a t e (1892), 147 Pa. St. 67, 23 Atl. 205. South Carolina — Cureton v. Massey (1866), 13 Eich. Eg. (S. Car.) 104, 94* Am. Dec. 152. Virginia — Gallagher v. E o w a n (1890), 86 Va. 823, 11 S. E. 121. Wisconsin — Milwaukee Home v. Becher (1894), 87 Wis. 409, 414, 58 N. W. 774. e? Lapsed Devises Co to Heirs. Johnscm v. Holifield (1887), 82 Ala. 123, 2 So. 753; Massey' s Appeal (1879), 88 Pa. St. 470 (but see act §673 WILLS. 454 ary devise does not go to the other residuary devisees if they were tenants in common. 68 2. STATUTES PROVIDING FOE SUBSTITUTION. § 673. Scope of the Statutes. In Iowa and Maryland the statutes entirely abolish lapse by death of the legatee, giving the property to his heirs or distributees. 23 In sev- eral other states such lapse is abolished in all cases if the devisee or legatee left issue surviving the testator, the issue taking as the ancestor would have done had he survived. 24 In the rest of the states, being all but nine, all gifts lapse on the death of the devisee or legatee be- fore the death of the testator, as they would at common law, unless he was a relative of the testator, and left issue surviving. 25 In a number of these the statutes provide against lapse only as to gifts to testator's children, grand- of 1879, P. L. 88 §2, P. & L. Dig, p. 1446, § 38, changing the role). By Kentucky Statutes (1899) 8 4843, lapsed devises and lapsed lega- cies both pass as intestate and not as residue. Stockwell v. Bowman (1902, Ky.) 67 S. W. 379. 68 Lapsed Residue. Magnuson v. Magnuson (1902), 197 111. 496, 64 N. E. 371; Sohier v. Inches (1859), 12 Gray (78 Mass.) 385 ; Cureton v. Massey (1866), 13 Rich. Eq. (S. Car.) 104, 94 Am. Dec. 152 ; Stockwell v. Bowman (1902, Ky.), 67 S. W. 379. But see: West v. West (1883), 89 Ind. 529. 28 Universal Substitution. Iowa— Code (1897), §3281; Black- man v. Wadsworth (1884), 65 Iowa 80, 21 N. W. 190; Phillips v. Carpenter (1890), 79 Iowa 600, 44 N. W. 898; both of which hold that the brothers and not the widow shall take as "heirs" under this section. But as to widow, see Code § 3313. Maryland — Pub. Gen. Laws (1888), Art 93, § 313; Hays v. Wright (1875), 43 Md. 122; Wallace v. Dubois (1885), 65 Md. 153, 4 Atl. 402; Gar- rison v. Hill (1895), 81 Md. 206, 31 Atl. 794. 2< Substitution if Issue Left. Georgia — Code (1895), 8 3330. Kentucky — Statutes (1899), §4841. New Hampshire — Pub. Stat. (1901), c. 186, § 12. Rhode Island — Gen. Laws (1896), c. 203, §§ 8, 31. Tennessee — Code (1896), §3928. Virginia — Code (1887), §2523. West Virginia — Code (1899), c. 77, § 12. 26 If Relative Leaving Issue. Alaska — An. Codes (1900), part 5, C 15, § 145. California — Civil Code (1901), § 1310. Idaho — Civil Code (1901), § 2525. Kansas — Gen. Stat. (1901), § 7993. Maine — Rev. Stat. (1883), c. 74, §10. Massachusetts — Rev. Laws (1902), c. 135, §21. Michigan — Comp. Laws (1897), § 9288. Minnesota — Gen. Stat. ( 1894 ) , § 4449. Missouri — Rev. Stat. (1899), §4613. Montana — Civ. Code (1895), § 1755. Nebraska — Comp. Stat. (1901), § 2665. Nevada — Comp. Laws (1900), § 3088. North Dakota — Rev. Codes (1899), S 3678. Ohio — Bates's An. Stat. (1898), § 5971. Oklahoma — Statutes (1893), § 6198. 455 LAPSE AND SUBSTITUTION. §674 children, brothers and sisters; 28 or only gifts to his chil- dren or descendants; 27 in Colorado and Illinois only gifts to children and grandchildren, 28 and in South Carolina only gifts to children. 29 As these statutes were enacted to serve the testator, not to obstruct him, they do not prevent express substitution, 30 of which later. 1 § 674. Interpretation of Words of Statutes. The word "relative" as used in these statutes means kindred by blood only, excluding husbands, wives, 31 stepchildren, and the like. 32 "Issue" and "descendants" in these statutes, as elsewhere, include only consanguinity in the Oregon — Hill's An. Laws (1892), § 3077. Bouth Dakota — An. Stat. (1901), § 4557. Utah— Rev. Stat. (1898), §2764. Vermont — Statutes (1894), § 2558. Washington — Bal. Codes & Stat. (1897), 4603. Wisconsin — Statutes (1898), 5 2289. 26 if Child, Grandchild, Brother, or Sister. Connecticut — Statutes (1902), 5 296; Rltch v. Talbot (1901), 74 Conn. 137, 50 Atl. 42. In New Jersey, Gen. Stat. (1895), p. 3763, § 34, provision is made for gifts to descendants of the testator, to his brothers and sisters, and to the descendants of either. In Pennsylvania, P. & L. Dig. Stat. (1894), p. 1447, §§ 45, 46, the law is the same, except that gifts to testator's brothers and sisters or their descend- ants lapse if the testator left descend- ants living. 27 Descendants Only. Alabama — Code (1896), §4257. Arkansas— Dig. Stat. (1894), §7402. Arizona — Rev. Stat. (1901), §4226. Indiana — Burns's An. Stat. (1901), § 2741. Indian Territory — Statutes (1899), § 3574. Mississippi- Code (1892), §4491. yew York — Birdseye's Rev. Stat. & Cod. (1901), p. 4021, |20. North Carolina — Rev. Code (1855), c. 119, § 28. Texas — sayles's Civ. Stat. (1897), § 5347. 28 Colorado — Mills's An. Stat. (1891), §4660. Illinois — Hurd's Stat (1899), c. 39, §11. 29 Rev. Stat. (1893), §1998; Logan v. Brunson (1899), 56 S. Car. 7, 33 S. E. 737. In a few states no provisions are found in the statutes, though it is not asserted that they do not exist. Such is the case as to Louisiana and Wyoming. so Bennett's Estate (1901), 134 Cal. 320, 66 Pac. 370. l See post §§ 680-694. 3iEsty v. Clark (1869), 101 Mags. 36, 3 Am. Rep. 320, to a wife ; Ren- ton's Estate (1895), 10 Wash. 533, 39 Pac. 145, to a wife ; Cleaver v. Cleaver (1875), 39 Wis. 96, 20 Am. Rep. 30, to a wife; Keniston v. Adams (1888), 80 Me. 290, 14 Atl. 203, to a husband. The devisee having expressly given to his wife by will what he was to have by his grandfather's will, still she could not take. Dixon v. Cooper (1889), 88 Tenn. 177, 12 S. W. 445. 32 Kimball v. Story (1871), 108 Mass, 382, to a stepson ; Horton v. Earle (1894), 162 Mass. 448, 38 N. E. 1135, to a brother-in-law ; Mann v. Hyde (1888), 71 Mich. 278, 39 N. W. 78, to a sister-in-law; Bramell v. Adams (1898), 146 Mo. 70, 88, 47 S. W. 931, to a stepdaughter; Pfuelb, Matter of (1874), 48 Cal. 643, to a stepson; Elliot v. Fessenden (1891), 83 Me. 197, 13 L. R. A. 37, 22 Atl. 115, to a brother-in-law. 675 WILLS. 456 descending line, excluding ancestors, 33 collateral kin- dred 34 husbands and wives, 35 stepchildren, and the like, 36 but have been held to include adopted children, 37 and illegitimate children. 38 "Leaving issue" confines the operation of the statute to cases in which issue survives the testator. 39 §675. Nature of Substituted Gift. Notwithstanding the terms Of the statutes that the gift shall not lapse, it seems clear that it does; and that the substituted donees take an independent gift by force of the statute. 40 Though the statutes usually provide that the children or other descendants of the deceased legatee or devisee shall take as if he had survived the testator, it is held of necessity that they do not take through their ancestor, but take an independent gift direct from the testator, free from the claims of the deceased beneficiary's wife, 41 husband, 42 representatives, 43 legatees, 44 and creditors. 45 In New 33 Morse v. Hayden (1889), 82 Me. £27, 19 Atl. 443, a mother. 34 West v. West (1883), 89 Ind. 529, a brother ; Gordon v. Pendleton (1881), 84 N. Car. 98, a brother; Hester v. Hester (1842), 2 Ired. Eq. (37 N. Car.) 330, a niece; Van Beuren v. Dash (1864), 30 N. Y. 393, sisters, nephews and nieces. 35 Prattler v. Prather (1877), 58 Ind. 141, a husband ; Loveren v. Donaldson (1899), 69 N. H. 639, 45 Atl. 715, a wife. 36 Ballard v. Camplin (1902), Ind. App. , 64 N. E. 931, a son- in-law ; Bramell v. Adams (1898), 146 Mo. 70, 47 S. W. 931, a stepdaughter. See also cases cited in note 45 under § 455 ante. 37 Warjen v. Prescott (1892), 84 Me. 483, 24 Atl. 948, 30 Am. St. Rep. 370, 17 L. E. A. 435 ; approved In Hartwell v. Tefft (1896), 19 K. I. 644, 35 Atl. 882, 34 L. R. A. 500. But see ante § 442. The provision to avoid lapse of gifts to a child was held not to save gifts to an adopted child. Phillips v. Mc- Conica (1898), 59 Ohio St. 1, 51 N. E. 445, 69 Am. St Rep. 753, 4 Pro. R. A. 134. 38 Goodwin v. Colby (1887), 64 N. H. 401, 13 Atl. 866. Contra, Wettach v. Horn (1902), 201 Pa. St. 201, 50 Atl. 1001. 39 Dixon v. Cooper (1889), 88 Tenn. 177, 12 S. W. 445; Fisher v. Hill (1810), 7 Mass. 86. But this provision is not found in all the statutes. See Frail v. Carstairs (1900), 187 111. 310, 58 N. E. 401, 6 Pro. B. A. 82. *o Fisher v. Hill (1810), 7 Mass. 86; Mann v. Hydd (1888), 71 Mich. 278, 39 N. W. 78. 41 Jones v. Jones • (1861), 37 Ala. 646; Cook v. Munn (1883), 65 How. Pr. 514, 12 Abb. N. Cas. 344. 42 Smith v. Williams (1892), 89 Ga. 9, 15 S. E. 130, 32 Am. St. Rep. 67. Contra: Eager v. Furnivall (1881), 17 Ch. D. 115. 43 Glenn v. Belt (1835), 7 G. & J. (Md.) 362; Suydam v. Voorhees (1899), 58 N. J. Eq. 157, 43 Atl. 4; Hafner, Matter of (1899), 45 App. Div. N. T. 549, 61 N. T. S. 565. 44 Glenn v. Belt, above ; Dixon v. Cooper (1889), 88 Tenn. 177, 12 S. W. 445; Newbold v. Prichett (1836), 2 Whart. (Pa.) 46. Contra: Johnson v. Johnson (1843), 3 Hare (25 Eng. Ch.) 157. 45 Cook v. Munn (1883), 65 How. Pr. 514, 12 Abb. N. Cas. 344; Smith v. Smith (1860), 5 Jones Eq. (58 N. Car.) 305. 457 LAPSE AND SUBSTITUTION. §676 Jersey it was held that the legatee substituted by the statute took subject to the claims of the testator against the original legatee; 48 but this has been denied by several courts. 47 And the latter seem to have the best of the argument. § 676. Application to Classes. The English, and a few American courts, have held that the statutes to prevent lapse apply only to gifts to individuals, and not to gifts to classes, on the ground that there is no gift to any but those in existence when the testator dies, or born between then and the time for enjoyment; and that, as there was no gift to those who died before the testator, there is no room for the application of the statute. 48 But when there was only one child, and it died before the testator these courts did not agree as to whether the statute ap- plied. 49 It is generally held by the American courts that the statutes apply alike to gifts to individuals or classes, and that if a member of the class dies before the testator, leaving issue or relatives who could take by substitu- tion under the statute, they shall take his share; 50 and 46 Denlse v. Denlse (1883), 37 N. J. New Jersey — Trenton T. & S. D. Co. Bq. 163. v. Sibblts (1901), 62 N. J. Eq. 131, 47 Carson v. Carson (1858), 1 Mete. 49 Atl. 530, reviewing the decisions at (58 Ky.) 300; Wallace v. DuBois length. (1885), 65 Md. 153, 4 Atl. 402; Tuttle Pennsylvania — Gross's Estate v. Tuttle (1879), 2 Dem. Sur. (N. T.) (1849), 10 Pa. St. 360. 48; Smith v. Smith (1860), 5 Jones Tennessee — Grant v. Mosely (1899, Bq. (58 N. Car.) 305. See also: Tenn. Ch.), 52 S. W. 508. Thompson v. Myers (1894), 95 Ky. England — Olney v. Bates (1855), 3 597, 26 S. W. 1014. Drew. Ch. 319. Browne 'v. Hammond In Paine v. Prentiss (1843), 5 Mete. (1858), Johns. Ch. (Bng.) 210. (46 Mass.) 396, it was held that on 49 When Only One Child. Cheney v. the death of the cestui que trust under gelman (1883), 71 Ga. 384, holding a devise before the testator, the de- i BSUe f so ] e c hii,j took; Harvey, In visee's daughter took the legal estate. re (1893), 1 Ch. D. 567, holding that See also Frail v. Carstairs (1900), 187 tne g i( t lapsed ill. 310, 58 N. E. 401, 6 Pro. B. A. 82. M statutes Apply to Classes. 48 Statutes Apply Only to Indl- Kentucky — Sloan v. Thornton VidualS. (1897), 102 Ky. 443, 43 S. W. 415; Georgia — Martin v. Trustees (1896), Teates v. Gill (1848), 9 B. Mon. (48 98 Ga. 320, 25 S. E. 522; Tolbert v. Ky.) 203. Burns (1888), 82 Ga. 213, 8 S. E. 79; Iowa — Downing v. Nicholson Davie v. Wynn (1888), 80 Ga. 673, 6 (1902), 115 Iowa 493, 88 N. W. 1064, S. B. 183. 91 Am. St. Rep. 175. Maryland — Young v. Robinson Massachusetts — Howland v. Slade (1840), 11 Gill & J. (Md.) 328, 341. (1891), 155 Mass. 415, 29 N. E. 631; §677 WILLS. 458 that if there was no one competent to take his share, the survivors take the whole. 61 § 677. Persons Dead When Will Made. A few of the statutes expressly extend to persons dead when the will was made; 52 and in the absence of express provision, it has often been held that "who shall die before the testa- tor," or the like, includes gifts to those who were dead when the will was made, so that their issue or relatives will take in their stead, whether the gift was to them as individuals, 53 or to a class of which they would be mem- bers. 54 But in a number of states it has been held that a gift to a class does not by virtue of these statutes include members of the class who were dead when the will was made. 55 § 678. To What Estates the Statutes Apply. A gift to one for life only would clearly fail by the death of the Stockbrldge, Petitioner (1888), 145 Mass. 517, 14 N. B. 928. Maine — Bray v. Pullen (1892), 84 Me. 185, 24 Atl. 811 ; Moses v. Allen (3889), 81 Me. 268, 17 Atl. 66. Michigan — Strong v. Smith (1891), 84 Mich. 567, 48 N. W. 183. New Hampshire — Hall v. Wiggln (1891), 67 N. Ham. 89, 29 Atl. 671. Ohio — Wooley v. Paxson (1889), 46 Ohio St. 307, 24 N. B. 599; Shumaker v. Pearson (1902), 67 Ohio St. 320, 65 N. B. 1005. Pennsylvania — Bradley's Bstate (1895), 166 Pa. St. 300, 31 Atl. 96. Virginia — Wildberger v. Cheek (1897), 94 Va. 517, 27 S. B. 441. Missouri— Jamison v. Hay (1870), 46 Mo. 546. Rhode Island — Moore v. Dimond (1858), 5 R. I. 121, 129. Tennessee — Jones v. Hunt (1896), 96 Tenn. 369, 34 S. W. 693. West Virginia — Hoke v. Hoke (1878), 12 W. Va. 427, 471, applying the same rule to a gift to joint tenants. So held though the will contained a gift by substitution to the survivors In case of death. Rivenett v. Bourquln (1884), 53 Mich. 10, 18 N. W. 537. But see Morton v. Morton (1852), 2 Swan (32 Tenn.) 318. olDove v. Johnson (1886), 141 Mass. 287, 5 N. E. 520 ; Hoke v. Hoke (1878), 12 W. Va. 427, 472. But see Dixon v. Cooper (1889), 88 Tenn. 177, 14 S. W. 445. 62 Cheney v. Selman (1883), 71 Ga. 384. 63 Nutter v. Vickery (1874), 64 Me. 490, 498; Minter's Appeal (1861), 40 Pa. St. Ill ; Darden v. Harrill (1882), 78 Tenn. 421 ; Wildberger v. Cheek (1897), 94 Va. 517, 27 S. E. 441; Mower v. Orr (1849), 7 Hare Ch. 473. Contra: Scales v. Scales (1860), 6 Jones Eq. (59 N.. Car.) 163; Moss v. Helsley (1883), 60 Tex. 426; Billings- ley v. Tongue (1856), 9 Md. 575. 64 Include Members Dead When WU1 Made. Kentucky — Chenault v. Chenault (1888), 88 Ky. 83, 9 S. W. 775. Maine — Moses v. Allen (1889), 81 Me. 268, 17 Atl. 66; Bray v. Pullen (1892), 84 Me. 185, 24 Atl. 811. Missouri — Jamison v. Hay (1870), 46 Mo. 546. Hew Jersey — Baldwin v. Tucker 1901), 61 N. J. Eq., 412, 48 Atl. 547. This case does not directly support the text. oo Dead Members Excluded. Iowa — Downing v. Nicholson (1902), 115 Iowa 493, 88 N. W. 1064, 91 Am. St. Sep. 175. 459 LAPSE AND SUBSTITUTION. § 679 devisee before the testator, and no substitution would be created by the statute. But if the estate given had the possibility of enduring forever it would be a fee, though subject to a conditional limitation; and being a fee there is a substitution created by the statute if the devisee dies before the testator. 66 The fact that the gift put the devisee to election to pay debts or the like, or to take the devise in satisfaction of a debt due himself, does not prevent the operation of the statute. 57 The statute operates to create a substi- tuted gift whether the gift was directly to the deceased or to another in trust for him, 58 though the trustee was given a power of appointment, and the property was to be "applied at his discretion." 59 §679. Retroactive Effect of Statutes. Statutes to avoid lapse cannot be given effect to save bequests or de- vises in wills of testators who have died before the stat- ute; 60 but are generally held to apply to wills made before if the testator died after the passage of the act. 61 3. SUBSTITUTION BY PEOVESIONS IN THE WILL. § 680. Nature and Kinds. Substitution may relate to the beneficiaries or to the property given. Gifts are said to be substitutional: 1, when a devise or bequest is made to one, several, or a class, and later, in the same sentence, in another connection, or in a later will, it is provided, that some other or others shall take what was given to the donees first named, (a) if a specified event shall hap- Massachusetts — Howland 'v. Slade 69 Rollins v. Merrill (1900), 70 N. (1892), 155 Mass. 415, 29 N. E. 631; Hamp. 436, 48 Atl. 1088. White v. Mass, I. T. (1898), 171 Mass. 60 Logan v. Branson (1899), 56 S. 84, 50 N. B. 512. Car. 7, 33 S. E. 737. Pennsylvania — Harrison's Estate 61 Bishop v. Bishop (1843), 4 Hill (1902), 202 Pa. St. 331, 51 Atl. 976. (N. T.) 138; Dazey v. Killam (1864), Rhode Island — Almy v. Jones 1 Duvall (62 Ky.) 403. (1891), 17 R. I. 265, 21 Atl. 616, 12 Contra: Martindale v. Warner L. R. A. 414. (1850), 15 Pa. St. 471. See also 66 Frail v. Carstairs (1900), 187 111. Murphy v. McKeon (1895), 53 N. J. 310, 58 N. E. 401, 6 Pro. R. A. 82. Eq. 405, 32 Atl. 374, holding "shall sTBlackwell v. Scouten (1901), 199 die" to indicate and include only lega- Pa. St. 446, 49 Atl. 261. tees and devisees dying after the act 68 Paine v. Prentiss (1853), 5 Mete, was passed. See also ante § 403. (46 Mass.) 396. § 681 WILLS. 460 pen, or (b) because of some change that has occurred since the first gift was made; 2, when a devise or bequest is made to one or many, and later in the same or some other will, something else, or a different estate in the same thing, is given as a substitute for the first gift. § 681. Questions Connected with Such Gifts. In con- nection with substitution by the terms of the will, the fol- lowing questions demand attention: 1, what expressions create a gift oyer; 2, defeat of the substitute by lapse of the primary gift, including the distinction between pri- mary and substitutional gifts; 3, the distinction between substitutional and cumulative gifts; and, 4, the incidents of substitutional gifts. A. What Expressions Create Gift Over. § 682. "Or Heirs, " " And Heirs, ' ' &c. An immediate devise or bequest to one "or" his heirs, children, repre- sentatives, or the like, clearly makes an absolute gift to him if living at the death of the testator, 69 and a substi- tutional gift to his next of kin, representatives or heirs, as the case may be, if he dies before the testator. 70 But a gift to one "and" his heirs, or the like, creates no sub- stitutional gift, and if the donee dies before the testator there is a lapse. 71 The sam^s is true if no conjunction is 69 See ante § 457; Fishback v. Joes- Canada — Wrigley's Estate (1900), ting (1899), 183 III. 463, 56 N. B. 62; 32 Ontario 108. Huston v. Read (1880), 32 N. J. Eq. 71 "And" Shows no Substitution. 591, and cases cited there; Reed's A Leading Case . sm v Cook Appeal (1888), 118 Pa. St. 215, 11 Atl. (m7)> 3 ^ 572 25 E 7 Rul CafJ 787, 4 Am. St. Rep. 588 ; O'Rourke v. 549 Connecticut — Jackson v. A 1 s o p Beard (1890), 151 Mass. 9, 23 N. E. 576 ™ "Or- Shows Substitution. (1896) ' 67 Conn - 249 ' 34 Atl - * 106 - Massachusetts — O'Rourke v. Beard Indiana — Maxwell v. Featherston (1890), 151 Mass. 9, 23 N. E. 576. (1882), 83 Ind. 339. New Jersey — Huston v. Read (1880), Massachusetts — Adams v. Jones 32 N. J. Eq. 591; Brokaw v. Hudson (1900), 176 Mass. 185, 57 JS. E. 362, (1876), 27 N. J. Eq. 135, and authori- 5 Pro. R. A. 618; Horton v. Earle ties there cited. (1894), 162 Mass. 448, 38 N. E. 1135; New York — Johnson v. Brasington Wood v. Beaver (1893), 158 Mass. 411, (1898), 156 N. Y. 181, 50 N. E. 859. 33 N. E. 587. Pennsylvania — Gilmor's Estate New Jersey — Zabriskie v. Huyler (1893), 154 Pa. St. 523, 26 Atl. 614, (1902), 62 N. J. Eq. 697, 51 Atl. 197, 35 Am. St. Rep. 855. reviewing several cases ; Palmer v. England— Keay v. Boulton (1883), Munsell (1896, N. J. CM, 46 Atl. 25 Ch. D. 212. 1094. 461 LAPSE AND SUBSTITUTION. 683 expressed, for example, to A. his executors or adminis- trators. 72 §683. Same— Postponed Gifts. The English courts have held that if a postponed gift is limited to one "or" his representatives, or "in case of his death" to be paid to his representatives, no substitutional gift is shown, but the intention of the testator was to show that the gift should vest at his death and not lapse by death of the legatee before payment. 73 But this construction has not been much applied in America. A gift to one or his representatives has been held to show a substitu- tional gift even in the case of postponed gifts, not to New York — Allen's Matter (1896), 151 N. T. 243, 45 N. B. 554. Pennsylvania — Barnett's Appeal (1883), 104 Pa. St. 342; Dickinson v. Byron (1822), 8 8. iE. (Pa.) 71. Rhode Island — Williams v. Knight (1893), 18 E. I. 333, 27 Atl. 210. "And Heirs" Creating Substitu- tion. Substitutional gifts have been found from the context on a gift to one "and his heirs." Plummer v. Shep- herd (1902), 94 Md. 466, 51 Atl. 173. Wettach v. Horn. (1902), 201 Pa. St. 201, 50 Atl. 1001 ; Hawn v. Banks (1845), 4 Edw. Ch. (N. T.) 664. Again, in a gift to be "divided among my brothers and sisters and their heirs." Huntress v. Place (1884), 137 Mass. 409. In Keniston v. Adams (1888), 80 Me.' 290, 14 Atl. 203, "To my husband, J., I give the residue • * * and so to his heirs," was held to show a constitutional gift to the heirs. An Extended Note on decisions holding "and" to mean "or," and the like, will be found in 48 Am. Dec. 565, 574. Remainder to Heirs. If a gift is to one for life, with a remainder expressly limited to his heirs, clearly the remainder would not lapse by the death of the life tenant before the testator. This is an Independent gift, and the rule in Shelley's case would not apply, for the ancestor never took any estate. Brice v. Horner (1896, Tenn. Ch.), 38 S. W. 440. 72 Same if No Conjunction. Bry- son v. Hoibrook (1893), 159 MaBB. 280, 34 N. H. 279 ; Loveren v. Don- aldson (1899), 69 N. Hamp. 639, 45 Atl. 715; Hand v. Marcy (1877), 28 N. J. Eq. 59, and cases cited ; Wells, Matter of (1889), 113 N. Y. 396, 21 N. B. 137, 10 Am. St. Rep. 457 ; Haw- kins on Wills (2 Am. ed.) »247; Elliot v. Davenport (1705), 1 P. Wms. 83, 2 Vern. 521, 25 Bng. Rul. Cas. 547. 73 "Or** in Future Gift-English Rule. Corby n v. French (1799), 4 Ves. 418, to A for life, and at her decease to B "or her representatives" ; Porter's Trust (1857), 4 Kay & J. 188, "or his heirs," but discussing this question at length ; Bone v. Cook (1824), McCleland 168; Tidwell v. Ariel (1818), 3 Madd. 403, the legacies being first given to each simply and later a provision added that they should be paid within a year after testator's death to the legatees "or their several respective heirs." In Steinway v. Steinway (1900), 163 N. Y. 183, 57 N. E. 312, 5 Pro. R. A. 599, it was held that direction to make postponed payments to the lega- tees "or their heirs" did not prevent the legacies vesting In the legatees on the death of the testator, so that the rule against perpetuities was not vio- lated. Contra: A devise to B for life, re- mainder to S for life, remainder to S's "children or heirs," entitled the heirs of S to take on his death without Issue after the testator and before B died. Johnson v. Braslngton (1898), 156 N. Y. 181, 50 N. E. 859. 684 WILLS. 462 lapse by death of the primary donee before the testator, 74 nor to be divested by his death afterwards before pay- ment, 75 and even in England a bequest to A for life, re- mainder to B or his heirs, would go to B's heirs if B died before the testator, for heirs do not succeed to personalty, so that the words can have no meaning except as a sub- stitutional gift. 76 § 684. Other Expressions Showing Substitution. Ex- press substitution in one clause does not imply it in an- other, the donees being different. 77 A direction to divide among the class "according to law" was held insufficient to create a substitutional gift to the children of one who died before the will was made. 78 If a gift to children named is followed by a gift over of the share of "any one of my children dying before me" to his children; the gift over relates to the children before mentioned, and does not create a gift by substitution to the issue of a deceased child that was not named. 79 A substituted gift to chil- 74 Abbott v. Jenkins (1823), 10 Serg. & R. (Pa.) 296; Brent v. Wash- ington (1868), 18 Gratt (Va.) 526, 531. See also Bronson v. Phelps (1886), 58 Vt. 612, 5 Atl. 552. 75 Indefeasible After Testator Dies. McGlll's Appeal (1869), 61 Pa. St. 46 ; Patterson v. Hawthorn (1824), 12 S. & B. (Pa.) 112, 114; O'Bourke v. Beard (1890), 151 Mass. 9, 23 N. B. 576; Chasy v. Gowdy (1887), 43 N. J. Eq. 95, 9 Atl. 580. See also Stelnway v. Steinway (1900), 163 N. Y. 183, 57 N. B. 312, 5 Pro. E. A. 599. Contra: In Heyward v. Heyward (1855), 7 Rich. Bq. (S. Car.) 289, It was held that a devise and bequest of residue to testator's wife for life, re- mainder to N "provided that N pay unto my brother T or his heirs the sum of £5,000, entitled the heirs of T to recover on the death of the wife though T had survived the testator and executed a release. See also Lyons v. Ostrander (1901), 167 N. T. 135, 60 N. B. 334; Bartine v. Davis (1900), 60 N. J. Eq. 202, 46 Atl. 577. 76 Porter's Trusts (1857), 4 Kay & J. 188. T7Lee v. Gay (1892), 155 Mass. 423, 29 N. E. 632. In this case be- quests were made to the children of J, the issue of any deceased child to Inherit its parent's share ; and in an- other clause a bequest was made "among my nephews and nieces, to them and their heirs," and It was claimed that a gift over was intended as to them also. 78Buzby v. Roberts (1895), 53 N. J. Eq. 566, 32 Atl. 9; Paine, Peti- tioner (1900), 176 Mass. 242, 57 N. E. 346, on very similar facts. 79 Bollinger v. Knox (1902), Neb. , 92 N. W. 994. See also Hoadly v. Wood (1899), 71 Conn. 452, 42 Atl. 263. "Grandchildren Shall lie Consid- ered." A will having provided for equal division among testator's chil- dren, it was held that a codicil pro- viding that "in the final division of my estate I desire that the grand- children shall he taken into considera- tion, and that the estate shall be so equally divided that the grandchildren shall have equal shares," was a gift by substitution to take effect only In case of the death of a child. McDowell'! Estate (1900), 194 Pa. St. 624, 45 Atl. 419. 463 LAPSE AND SUBSTITUTION. § 685 dren and if none then over, has been held to go to grand- children if there were no children. 80 B. Defeat op Substitute by Lapse of Primary Gift. §685. How to Distinguish Substitutional from Pri- mary After Gift to Class. This question becomes impor- tant in case of the lapse of the primary gift, and does not often arise in cases of this kind on any other question. The distinction between primary and substitutional gifts in cases of this kind is highly artificial, has not always been observed, and has been said to depend "upon the length of the chancellor's foot, and the liveliness of his imagination." 81 The distinction is stated as follows: If a gift is "to my brothers and sisters who shall be liv- ing at the death of my wife, and to the issue of such of my brothers and sisters as shall be then dead, " it is clear that two original gifts are made, one to one class, brothers and sisters then living, the other to another class, the issue of brothers and sisters then dead. In this case there is no substitution of issue to take a gift primarily made to their parents. The words simply describe a class of persons to take an original gift. The parents to take are only those then living; dead parents are given nothing. But if a gift is made "to my brothers and sisters upon the death of my wife, and if any of my brothers or sisters shall then be dead, his or her children shall take his or her share," it is clear that the children take a share pri- marily given to their parents, that the gift to the children is substitutional, and that in order to take the children must be able to point to a parent who would have taken a primary gift and to whose share they are substituted. 82 so Campbell's Estate (1902), 202 Pa. 82 Martin v. Holgate (1866), h. R. St. 459, 51 Atl. 1099. See also ante 1 H. E. Rep. 175, 35 L. J. Cb. 789, 15 5 442, n. 65. W. R. 135. 81 Wheeler t. Allan (1866), 54 Me. Distinction According to Kindertley, 232, 234, per Barrows, J. Compare V. C. "A gift to Issue Is substitutional Bronson v. Phelps (1886), 58 Vt. 602, when the share which the Issue are to 5 Atl. 552, for a lively imagination. take Is by a prior clause expressed to Note. This question is discussed In be given to the parent of such issue ; a note by Judge RedSeld in 5 Am. L. and a gift to Issue Is an original gift Reg. (N. S.) 238-241. when the share which the issue are § 686 WILLS. 464 § 686. Rule as to Original Gifts Generally. An origi- nal devise or bequest that is limited to arise on the" termi- nation of prior gifts is not affected by the lapse of any or all the prior gifts, except as it is advanced thereby, provided it is in condition to advance to possession by the death of the testator, or afterwards by the termina- tion of all the prior estates. 83 But a substitutional gift may be defeated by the lapse of the primary gift, though this cannot be strictly said to be a lapse of the substitute. The rules to determine whether the substitute is thereby defeated now demand our careful attention. § 687. Rule as to Original After Gift to Class. If a gift is made to such children of A (or to any other class) as shall be living at a given time, and to the issue of any children of A who shall be then dead, the gift to the issue is original, and the issue of any child then dead comes within the words of the description, and is entitled to share in the gift, whether its parent died before the death of the tenant for life, before the death of the testator, 84 to take is not by a prior clause ex- the issue is substitutional, because the pressed to be given to the parent of share which the Issue are to take la such issue. Thus, in the present case, by a prior clause given in the first the gift to the issue of such nephews Instance to the nephew or niece, the and nieces as shall die before the ter- parent of such issue." Lanphier v. mlnation of the prior limitations Is an Buck (1865), 2 Drewry & Sm. 484, original and not a substitutional gift 494, 34 L. J. Ch. 650, 11 Jur. (N. S.) to the issue, because the share which 837, 5 Am. L. Reg. (N. S.) 222, 230. is to be taken by the issue of any 83 See ante § 576. predeceased nephew or niece Is not by 84 Teed v. Morton (1875), 60 N. T. any prior clause expressed to be given 502; Coulthurst v. Carter (1852), 15 to such predeceased nephew or niece. Beavan 421 ; Smith v. Smith (1837), The issue who are to take are the 8 Simons (11 Eng. Ch.) 353; Rust v. issue of such nephews and nieces as Baker (1837), 8 Simons (11 Eng. Ch.) shall die before the termination of the 443. preceding limitations; and nothing Is The gift over after the trust for given to such nephews and nieces as life being "equally among my children die before the termination of the pre- then living « • • and the issue ceding limitations, the gift to the of such as may then be dead," it was nephews and nieces being exclusively held that a marketable title was not to such as shall be living at that time, furnished by an Uncontested judgment On the other hand, if the gift be thus, of partition, before the termination of — on the death of A without issue, to the trust, no provision being made for nephewB and nieces (generally), fol- the unborn issue. It was also held lowed by a direction that if any of that there was no lapse by the death them shall die before the termination of one of the children after the will of the preceding limitations, the issue was made but before the testator died, of such nephews or nieces shall take Smith v. Secor (1898), 157 N. Y. 402, his or her share, — there the gift to 52 N. E. 179. 465 LAPSE AND SUBSTITUTION. §688 or even before the will was made. 85 In such cases the words "shall die," or "shall happen to die," do not necessarily point to a future death, so as to exclude the issue of a child dying before the will was made. 86 Nor does the fact that "the parent's share" is given to the issue render the gift substitutional. 87 That much is set- tled, and there is no dispute about it. But how about the case in which the gift preceding is to a class and the gift to the children or issue of one dying is substitutional? § 688. Immediate Substitutional Gifts. If there is an immediate gift to children as a class (or to any other class) with a gift over of the shares of those dying before their shares become payable, the gift over takes effect as to the shares of members of the class living when the will was made, or born afterward, but dying before the testator. 88 This is a rule of necessity, and there is no dispute about it. Clearly the children of those who die after the testator take nothing under such a gift; and if not applied to those dying before him, the words could be given no meaning at all. As to all that has been said up to this point concerning gifts over after gifts to classes there is no dispute. We now pass to the disputed ground. § 689. Substitution for Parent Dead Before Will was 85 Coulthurst v. Carter, above ; ceased parent.' Here the primary Giles v. Giles (1837), 8 Simons (11 legatees are children living at Fran- Eng. Ch.) 360, 6 L. J. Ch. 176, 1 Jur. ces's death. If the proviso had re- 234 ; Long v. Labor (1848), 8 Pa. St. ferred to any such child dying before 229. its mother, the issue of that child seLorIng v. Thomas (1861), 1 Dr. would clearly take by substitution, but & Sm. 497, 516, 30 L. J. Ch. 789, 7 the child dying is not restricted, by a Jur. (N. S.) 1116, 5 L. T. 279, 9 W. qualifying word, to the class of pri- ll. 919, 25 Bng. Eul. Cas. 765. mary takers, and hence the children of 87 Tytherleigh v. Harbin (1835), 6 a child dying are original takers of a Simons (9 Eng. Ch.) 329. substitutional gift." Acken v. Osborn "In the case in hand, the gift is to (1889), 45 N. J. Eq. 377, 381, 17. such children of Frances Vermule as " Atl. 767, affirmed without opinion in she may have at her death, i. e. a class 46 N. J. Eq. 607. of legatees living at a prescribed 88 Hawkins Wills (2 Am. ed.) *251 : period. Then follows the proviso: Cort v. Winder (1844), 1 Collier Ch. 'That if any child of my said daughter 321; Lee v. Gay (1892), 155 Mass. shall die before its mother, leaving a 423, 29 N. B. 632; Dunn v. Cory child or children, such child or chil- (1898), 56 N. J. Eq. 507, 39 Atl. 868. dren shall take the share of such de- 30 § 690 WILLS. 466 Made. In the leading case of Christopherson v. Naylor (1816), 89 it was held that an immediate gift to "each and every the child and children of my brother and sisters which shall be living at the time of my death, bnt, if any child or children of my said brother and sisters or any of them shall happen to die in my lifetime and leave any issue, the legacy or legacies hereby intended for such child or children so dying shall be for his, her, or their issue, ' ' was a substitutional gift to the issue, and did not include the issue of any child who died before the will was made. After much dispute and several contrary de- cisions, it seems now to be settled that the rule of this case is the law in England; 90 and it has been approved and followed in a few American cases. 91 Of course this rule would yield to a different intention disclosed by the context of the will. 92 §690. Reasoning in Christopherson v. Naylor. The reasoning on which this rule is based is stated by Sir Wm. Grant, M. E., in Christopherson v. Naylor, as fol- lows: "The nephews and nieces, here, are the primary legatees. Nothing whatever is given to their issue, ex- cept by way of substitution. In order to claim, therefore, under the will, these substituted legatees must point out the original legatees in whose place they demand to stand. But, of the nephews and nieces of the testator, none could have taken besides those who were living at the date of the will. The issue of those who were dead at that time can, consequently, show no object of substitution." § 691. Objections to Above. It will be observed that several American courts have held that general gifts to 89 1 Meriv. 319. however, being on the death "of any ooMusther, In re (1890), 43 Ch. D. of the legatees herein," as to which 569, 59 L. J. Ch. 296 — C. A. see post § 691, n. 96. 9iWescott v. Higgins (1899), 42 82 A different intention was found App. Div. 69, 58 N. T. S. 938, af- from the context in : Crawford's Mat- firmed without opinion in 169 N. T. ter (1889), 113 N. Y. 366, 21 N. B. 582, 62 N. E. 1101. The court below 142, in which the rule and the cases reviewed the English cases to some are discussed to some length by An- length. Tiffany v. Emmet (1902), drews, J. ; LeJeune v. LeJeune (1838), 24 E. I. 411, 53 Atl. 281, the gift over, 2 Keen (15 Eng. Ch.) 701. 467 LAPSE AND SUBSTITUTION. 691 classes do embrace those who died before the will was made, so as to entitle their issue to take under the statutes to avoid lapse, 93 and these courts could not consistently give a different construction to the language which the testator has put into the will from what they do to the lan- guage the statute has written in it for him. Moreover, it is clear that the construction given in Christopherson v. Naylor is always a violation of the real intention of the testator, as is shown by Sir E. Malins, V. C, in the language quoted below. 94 In my opinion the original de- cision was incorrect, at least should not be followed, and 93 See ante §§ 676-7/ »* Arguments Against Christo- pherson V. Naylor. In Potter's Trusts (1869), h. E. 8 Eq. Cas. 50, 39 L. J. Ch. 102, 20 L. T. 649, the gift was: "As to one fourth part thereof to my nephews and nieces, the children of my late sister Mary Lamb, in equal shares and proportions, as tenants in com- mon, and in case of the death of any of the said nephews and nieces leaving issue, then I direct that such issue shall take the share that his, her or their deceased parent would have taken if living." Some were dead when the will was made ; some died afterwards before the testator ; and some died after the testator, but before the life tenant. Malins, V. C, said: "It is not disputed that the issue was sub- stituted for the parent in the case of any nephew or niece who survived the testator but died in the lifetime of the tenant for life; but there being two classes of persons who died before the period of distribution, — namely, nephews and nieces who were dead at the date of the will, and a nephew who was alive at the date of the will, tut died in the lifetime of the testator — it was argued that in the case of the nephew who was living at the date of the will, but died before the testa- tor, leaving issue, that issue could not take, and a fortiori, that the issue of the nephews and nieces who were dead at the date of the will could not take. * * * Suppose that some were actually dead at the time of the testator's death, but the fact was un- known to him, and that there were others who died after him; Is there any probability that he Intended to show greater favor to the latter than to the former? Take the common case of a gift by a parent to his children of a definite portion of his whole prop- erty, followed by the words : 'But if any of them shall die then I give it to their issue, the issue of those who are dead to take the shares which their parents would have taken if liv- ing.' Can it be supposed that he had any less affection for those grandchil- dren whose parents predeceased him, but whose death he did not know of, than for those whose parents survived him? There is no ground for such a supposition. If the intention Is to ex- clude grandchildren whose parents are dead at any particular period, there ought to be something to show it ; there is nothing of the kind in this will. * • * I have no doubt what his intention was, and that being clear and absolute, the court ought to strive *o the utmost to carry it out, and give the testator's words their ordinary meaning, rather than adopt a narrow construction. On the reason of the thing, my conclusion is, that wherever there is a gift to a class, with a gift by substitution to the Issue or children of those who should die, the children take what their parents would have taken If living at the testator's death, without regard to the question as to whether the parents died before or after the date of the will, unless a contrary intention is shown. • • • "I cannot but feel great regret at the existence of a class of cases such aa those which have been cited, In which the law has been laid down on a ml- 692 WILLS. 468 cannot be consistently followed, under the other rules of construction established here; and it has been held in several American cases that a substitutional gift to chil- dren, or issue as children, following a general gift to a class, entitles children to take whose parent died before the will was made. 96 Still, persons dead when the will was made might be excluded by the context. 96 §692. Postponed Substitutional Gifts. The English courts have applied to postponed substitutional gifts after gifts to classes the same reasoning applied to im- mediate substitutional gifts, and have carried it even fur- ther in such cases. In these cases they not only hold that those who were dead when the will was made are not em- nute distinction, really often without a difference, by which the testator's In- tention has been totally frustrated, when a yielding to a common sense view would have carried It out. • • • Being so clearly of opinion as to what ought to be the construction In cases of this kind, I believe I am only repeating what has been often said when I say that courts of justice are never worse employed than In endeav- oring to point out minute distinc- tions where none exist, and in relying upon words rather than substance In order to interpret the testator's mean- ing." The V. C. then proceeded to re- view the English cases at length, pointing out those in which similar opinions had been expressed. In Lucas's Will (1881), 17 Ch. D. 788, 29 W. B. 860, Mallns follows his de- cision In the above case. 05 Wheeler v. Allan (1866), 54 Me. 233, in which, however, the court held that the legacies were original, though there was nothing In the will making them so, being "to the sons and daugh- ters of my brother M, and the sons and daughters of my brother H, and to the heirs of their bodies, and In case of the falliire of the heirs," &c. Hun- treBS v. Place (1884), 137 Mass. 409, In which the gift was to "be equally divided between my brothers and sis- ters and their heirs" ; Yeates v. Shern (1901), 84 Minn. 161, 86 N. W. 1004, the gift being, "to the same persons * • * as my said estate would descend * • • the child or children of any deceased parent taking the share of such parent by right of representation." Outcalt v. Outcalt (1887), 42 N. J. Bq. 500, 8 Atl. 532. But see Dunn v. Cory (1898), 56 N. J. Eq. 507, 39 Atl. 368. 96HoadIy v. Wood (1899), 71 Conn. 452, 42 Atl. 263; Morrison's Estate (1890), 139 Pa. St. 306, 20 Atl. 1057, the gift being "I have a number of nephews and nieces living * • • to each of them I bequeath, * * * If any of them should die before me, the legacy of those so dying to be paid to their children in equal shares." Held cot to include children of nephews or nieces who died before making of will. "Any Legatee." A legacy being given to a class, the children of R, and a clause added, providing, "that. In case any legatee shall die in my lifetime leaving a child or children him sur- viving, such legacy shall not lapse, but be paid to the child," &c. ; it was held (by Malins, V. C, and af- firmed on appeal) that the use of the word legatee took the case out of the operation of the rule, and excluded the children of a. child that died before the will was made. Hunter v. Cheshire (1873), L. R. 8 Ch. App. Cas. .751, 29 L. T. 283, 21 W. R. 778. Followed in Dunn v. Cory (1898), 56 N. J. Bq. 507, 509, 39 Atl. 368. 469 LAPSE AND SUBSTITUTION. § 693 braced in the meaning of the words of substitution, 97 but that those who died before the testator, though after the will was made, are also excluded. 98 It is observed that the court is not driven to hold that death before the tes- tator was meant, as in immediate gifts, as to which there is no other possible meaning. In postponed gifts death after the testator but before payment is a possible mean- ing, and the English courts are consistent in holding that to be the true construction, it being settled there that "in case of death" means death at any time before pay- ment. 99 §693. Same— Objections to Above. The Amer- ican courts that hold "in case of death" to mean death before the testator in all cases, and especially those that hold "in case of death under age," and the like, to mean death before the testator, cannot consistently follow the English decisions on the question now in discussion. 1 Moreover, these decisions cannot be consistently followed in many of our states for the further reason that it has been held that the same words as are used in the will in making the substitutional gift, when used in the statutes to prevent lapse, include members of the class dying be- fore the testator but after the will was made. 2 It has been held in America in the case of postponed substitu- tional legacies that even the issue of those dead when the will was made are entitled to take under the substitu- tional clause, and it is believed that such decisions are correct. 3 With greater reason can we approve of the de- cisions in which issue of persons who died after the will 97 Palmer v. Dunham (1890), 125 »» See ante §§ 650-656. N. T. 68, 25 N. B. 1081 ; Here's Estate l See ante §§ 650-656. (1857), 28 Pa. St. 467. 2 See ante § 677. In Allen's Matter (1896), 151 N. Y. 3 Dehaven v. Oglesby (1896, Ky.) 243, 45 N. B. 554, this construction 38 S. W. 145 ; Outcalt v. Outcalt was very much strengthened by the (1887), 42 N. J. Eq. 500, 8 Atl. 532; context, if not clearly demanded. Richey v. Johnson (1876), 30 Ohio 98 Hannam, In re (1897), 2 Ch. D. St. 288; Pahnestock's Estate (1892), 39, 66 L. J. Ch. 471, 76 L. T. 681, 45 147 Pa. St. 327, 23 Atl. 573. See W.' R. 613, following, Thornhill v. also Bowker v. Bowker (1889), 148 Thornhlll (1819), 4 Madd. 377; Con- Mass. 198, 19 N. B. 213; Bronson v. greve v. Palmer (1853), 16 Beavan Phelps (1886), 58 Vt. 612, 5 Atl. 552. 435. § 694 WILLS. 470 was made but before the testator were included in a postponed substitutional gift. 4 §694. Lapse by Death of Substituted Legatee. If the gift is independent or original it would lapse by the death of the legatee before the testator, unless saved by the statutes to prevent lapse, 5 and would not lapse by death afterwards, though before the time for payment, 6 or even before the death of their parent who would have taken and excluded them if living till payment. 7 Like- wise, the substitutional gift would lapse in the same cases in which an original gift would, and would not otherwise lapse by death of the substituted legatee before the time for payment. 8 But it is held in England that in the case of substitutional legacies, the gift lapses as to a substi- tuted legatee who dies before his or her parent. 9 § 695. Substitution After Primary Gifts to Persons Named. It is now settled, both in England and in Amer- ica, that if, after a gift to one or more, severally, or as tenants in common, but not as a class, the gift or share is limited over to another or others, to take effect if the pri- mary donee dies unmarried, under age, without issue, or the like, the substitutional gift takes effect if such death occurs during the testator's lifetime, 10 or had oc- 4 May's Appeal (1862), 41 Pa. St rick's Trusts (1866), L. R. 1 Eq. Cai. 512. 551. In Hoopes's Estate (1898), 185 Pa. a Shaw v. Eckley (1897), 169 Mass. St. 172, 39 Atl. 888, it was held that 119, 47 N. E. 609; Crane v. Bolles a provision that if a legatee shall not (1892), 49 N. J. Eq. 373, 382, 24 Atl. survive to receive his portion and shall 237. leave no children to inherit it, his » Ive v. King (1852), 16 Beavan 46, share shall revert, did not substitute 57; Turner, In re (1865), 2 Drewry the children, and that they could not & Sm. 501, 5 Am. L. Reg. (N. S.) 234; take if their parent died before the Lanphier v. Buck (1865), 2 Drewry & testator. Sm. 484, 498, 34 L. J. Ch. 650, 5 Am. 5 As to which see ante §§666-679. L. Reg. (N. S.) 224. 6 Acton v. Osborn (1889), 45 N. J. lOA Leading Case. Willing v. Baine Eq. 377, 382, 17 Atl. 377, affirmed (1731), 3 P. Wms. 113, In which a without opinion in 46 N. J. Eq. 607; gift over to the survivors was made, Martin v. Holgate (1866), L. R. 1 H. to take effect if any of the children L. Rep. 175, 35 L. J. Ch. 789, 15 W. should die under age, and one so died R. 135. before the testator, but the gift to the 7 Lanphier v. Buck (1865), 2 survivors was held to take effect, fol- Drewry & Sm. 484, 497, 11 Jur. (N. lowing Miller v. Warren (1690), 2 S.) 837, 34 L. J. Ch. 650, 5 Am. L. Tern. 207, decided on Identical facts; Reg. (N. S.) 224; approved In Mer- Goddard v. May (1872), 109 Mass. 471 LAPSE AND SUBSTITUTION. §696 curred before the will was made, 11 though, it was to take effect if the primary donees "shall" so die, 12 whether such primary gift was immediate or by way of remain- der, 13 and though the substitute was to take effect only in case the primary donee should die "during the life- time" of the tenant for life, which might seem to point to death after the testator. 14 Whether death after the testator would give effect to the substitute has already been discussed. 15 C. Gift by Will to One Given by Codicil to Another. § 696. Context Revealing Intention. A gift by codicil of the "amount" that was given by the will to a legatee who had died since making the will was held substitu- tional in one case 1 and independent in another. 2 468; Borgner v. Brown (1892), 133 Ind. 391, 33 N. E. 92. But in Kimball's Will (1898), 20 E. I. 619, 40 Atl. 847, the gift over to the son's widow, if any, was held to lapse by his death before the testator. The court did not specify anything in in the context showing such Intention. "The gifts over contemplate such death as occurring subsequently to that of the testator." In Humberstone v. Stanton (1813), 1 Ves. & B. 385, a gift over in case the primary legatee should die before finishing his apprenticeship was held to fall by the apprenticeship being ac- complished, though the legatee after- ward died before the testator. n State v. Lyons (1847), 5 Harring. (Del.) 196. Ive v. King (1852), 16 Beavan 46, 56, which is a valuable case on the whole subject of substitutional gifts, because of the great variety of cir- cumstances involved in the several gifts, the extended opinion of the M. B., and the number of cases reviewed. 12 Sheppard's Trusts (1855), 1 Kay & J. 269; Varley v. Winn (1856), 2 Kay & J. 700, in which the executors were directed to invest £6,000 for each of the daughters named, "but if any of my said daughters should die leav- ing no issue, then the share so in- vested shall be divided among those who have issue," and one so died be- fore the testator ; Borgner v. Brown (1892), 133 Ind. 391, 33 N. E. 92, though the expression was "descend," which indicated death after vesting ; Goddard v. May (1872), 109 Mass. 468, though the will read "should de- cease without legal issue during the space of five years after my death" ; Hannam v. Sims (1858), 2 De Gex & J. (59 Eng. Ch.) 151, though the gift over was "in case any or either of my said brothers and sisters • • • now living shall happen to die." 13 Humphreys v. Howes (1830), 1 Euss. & My. (4 Eng. Ch.) 639, In which a gift was made to A for life, remainder to B and C equally, but If either should die without issue before his share should be payable, his share should go to the survivor, and C took the whole fund though B died before the testator. 14 Ashling v. Knowles (1856), 3 Drew, 593; Hannam v. Sims (1858), 2 De Gex & J. (59 Eng. Ch.) 151. is See ante §§650-657. A gift In remainder to persons named "or such of them as shall sur- vive" the life tenant, and to the heirs of any dying before her, Includes In the substitutional gift the heirs of one dying after the testator. ; Penny v. Commissioners (1900), App. Cas. 628, 69 L. J. P. C. 113, 83 h. T. 182. lLaveaga's Estate (1898), 119 Cal. 651, 51 Pac. 1074, "The amount I did § 697 WILLS. 472 D. Substitution of One Gift for Another to Same Person.* § 697. Cumulative to Same Person. When several gen- eral legacies of different amounts are given to the same person in the same instrument, they are presumed to be cumulative and not substitutional, and he is entitled to all; 4 and if such gifts are in different instruments the pre- sumption is much stronger. 8 But in either case this pre- sumption may be overcome by the context. 6 If gifts to the same person are in different instruments they are pre- sumed to be cumulative, not substitutional, and he is en- titled to all, though they are for the same amount, 7 and even though stated in the very same words. 8 In such cases it is sometimes claimed on one side that the gift is of the same thing both times, that is, that the gifts are specific, and claimed on the other side that the gifts are general, so that the legatee is entitled to two such amounts. This question is considered elsewhere. 9 § 698. Substitutional to Same Person. If several gen- eral legacies for the same amount are given to the same person in the same instrument, it is presumed that only bequest to my friend W, now deceased, he gave $6,000 to his brother's I now desire, or rather ordain, he daughters and $1,000 to his nephew, given to the young man, J." the testator wrote the following words 2 Fry's Estate (1894), 163 Pa. St. on an envelope containing some bonds : 30, 29 Atl. 699, "I have left the same "Six bonds for my brother John's amount to M." daughters, also one for my nephew a Note. This question is treated In John, to be sold after my death." a note, 4 Pro. E. A. 275-279. This writing was held to be a codicil. 4 Hurst v. Beach (1820), 5 Madd. It was claimed that the gift by the 351, 358; DeWitt v. Yates (1813), 10 codicil was substitutional, because the Johns. (N. T.) 156, 6 Am. Dec. 326, bonds would probably bring about the H. & B. Eq. Cas. 137, dictum by Kent, amounts given the legatees by the will. 6 Cumulative — In Different Wills. The court held that they were not Johnstone v. Harrowby (1859), 1 De substitutional. Harrison's Estate Gex F. & J. (62 Eng. Ch.) 183; Zeile, (1900), 196 Pa. St. 576, 46 Atl. 888. In re (1887), 74 Cal. 125, 15 Pac. 455; 9 Similar Words. In Sponsler's Dtley v. Titcomb (1884), 63 N. Hamp. Appeal (1884), 107 Pa. St. 95, the 129; Edwards v. Rainier (1867), 17 testator gave fifteen shares of stock Ohio St. 597, H. & B. Eq. Cas. 139 ; by his will, and by his codicol gave Manifold's Appeal (1889), 126 Pa. St. fifteen shares of the same kind of 508, 19 Atl. 42; Noel v. Noel (1889), stock. He has just that many shares 86 Va. 109, 9 S. E. 584. of that stock when both instruments eOrrick v. Boehm (1878), 49 Md. were made. The legacies were held 72, 99. general and cumulative. On the dis- 7 Though Same Amount. Hollls- tinction between general and specific ter v. Shaw (1878), 46 Conn. 248. legacies see post §§ 704-8. 8 After executing his will, by which 473 LAPSE AND SUBSTITUTION. §699 one legacy was intended, and that it was a case of in- tended substitution or mistaken repetition. 10 When two or more legacies are given to the same person by different instruments, it may be found from the context that a substitution was intended, whether the last gift be the same, 11 less, or greater, in amount than the first. 12 It has been held that the presumption that several lega- cies were intended is rebutted by the fact that they are for the same amount and that the same motive is stated for each, though they are in separate instruments. 13 And when a series of legacies given in one instrument is re- peated in another, though with slight variations and ad- ditions, the similarity of the two sets may show that substitution was intended, and not additional gifts. 14 E. Incidents op Substitutional Gifts. § 699. General Rule. Substitutional gifts are subject to all the incidents of the originals, whether the substitu- tion is as to the property or as to the beneficiaries, 'whether the incident is advantageous or prejudicial to the donee, and whether it attached to the original gift particularly or to the whole clause in which it was made, and though the incident is not mentioned in connection io Substitutional Because Borne the first being a settlement secured by Amount, <4c. Garth v. Meyrick (1779), bond and mortgage, and the bequest 1 Brown Ch. 30 ; Holford v. Wood being "in lieu of all other allowances." (1798), 4 Ves. 76; Crevellng v. In Currie v. Pye (1811), 17 Ves. Jones (1845), 21 N. J. L. (1 Zab.) 462, Lord Eldon held that If the lega- 573 (court divided 3 to 5), reversing cies in the different instruments are decision below, i. e., Jones v. Cleveling exactly the same they are not cumu- (1842), 19 N. J. h. 127, the time of latlve. payment being specified in the last and 12 Hooley v. Hatton (1772), 2 Dick, not in the first gift ; DeWltt v. Yates 461, 1 Brown Ch. 390 note, Lofft 122 ; (1813), 10 Johns. (N. T.) 156, 6 Am. Hurst v. Beach (1820), 5 Madd. 351; Dec. 326; H. & B. Eq. Cas. 137, Wainwright v. Tuckerman (1876), 120 though the mode of payment In the Mass. 232. second was specified, in the first not — " Motive Expressed Shows Sub- a much cited case, opinion by Kent; stitution.— Hurst v. Beach (1820), 5 Powell's Estate (1890), 138 Pa. St. Madd. 351. 322 22 Atl. 92, the last provision be- " Substitution Shown by Similarity ing a direction to sell stocks sufficient of Several. — Rice v. Boston Port & to pay the amounts, which were the S. A. Soc. (1875), 56 N. Hamp. 191, same as before given. and many cases reviewed therein ; n Substitutional — by Content — Dickinson v. Overton (1898), 57 N. Different Wills.— Graves v. Mitchell J. Hq. 26, 41 Atl. 949, 4 Pro. B. A. (1895), 90 Wis. 306, 63 N. W. 271, 268. § 700 WILLS. 474 with the substitute. 15 The incidents of the original at- tach to the substitute so as to make it abate in the same order if the estate is insufficient to pay all in full, 16 to make it payable only out of realty, though that makes it void under the statute of mortmain, 17 to free it from leg- acy tax, 18 to defeat it on breach of a condition subsequent attached to the original, 19 or by the happening of a con- ditional limitation by which the original was to go over. 20 The conditions and incidents of the former gift will not attach to the substitute, even though expressly given "in lieu of" the former, if it appears that the testator in- tended it as an entirely new gift. 21 § 700. Advances to Primary Donee. The substituted child, issue, or heirs of a member of the class take the share of the primary donee; and take it satisfied to the extent that advances had been made to the primary legatee. 22 § 701. Additional Gifts. Likewise, if a gift is made to anyone, and in a codicil a further gift to the same person is made "in addition to" the gift previously made, the new has all the incidents of the original; for example, is Incidents of Original Attach. — mary, — Beuhler's Appeal (1882), 100 Hawkins on Wills (2 Am. ed.) *306 ; Pa. St. 385; Bartine v. Davis (1900), Corrie's Will (1863), 32 Beavan 426; 60 N. J. Eq. 202, 46 Atl. 577; Mason v. Smith (1873), 49 Ala. 71, Breckinridge v. Breckinridge (1898), holding the substitute a personal 98 Va. 561, 31 S. E. 892. charge on the other legatees, as was Contra — But in Lee v. Balrd (1903), the original. 132 N. Car. 755, 44 S. E. 605, it was But as to Statutory Substitution nela tna t the children could not he see ante § 675. charged with advances made to their 16 Leveaga's' Estate (1898), 119 mother who died before the will was Cal. 651, 51 Pac. 1074. made ' the wlU PW«nB "my exeeut- ' ors to require of my heirs who have 17 A Leading Case.— Leacroft v. receive(J advancements during the life Maynard (1791), 3 Brown Ch. 233. of my husDand or mTse i, to present is Cooper v. Day (1817), 3 Meriv. to them an itemized statement of such 154. advances before they shall receive any i9Tilden v. Tilden (1859), 13 payment, • '• » and if any of my Gray (79 Mass.) 103. heirs have received no advancements, aoCondict y. King (1861), 13 N. J. to pay to them a sufficient sum to Eq. 375, 381. make them all equal ; and if any of my 21 Alexander v. Alexander (1842), 5 heirs shall die before my death, leaving Beavan 518; Brown v. Brown (1884), heirs, the children of such deceased 137 Mass. 539; Pike v. Walley (1860), parent or parents, shall receive jointly 15 Gray (81 Mass.) 345. the share coming to their parent or 22 Reduced oy Advances to Pri- parents." 475 LAPSE AND SUBSTITUTION. §702 that it can be paid only out of the same fund and subject to the same conditions, 23 is equally liable to be defeated by limitation over on death unmarried, or the like. 24 But the incidents of the original are held not to attach to the added legacy to the advantage of persons other than the one to whom it is given. 25 § 702. How Question Affected by Separation of Pro- visions. The incidents of the original apply to the sub- stitute, though the latter is in a codicil executed many years after the primary gift. 26 The result is not affected by the fact that the primary gift had lapsed, 27 or been adeemed, 28 before the substitute was given. 23 Incidents Attach to Additional Legacies. Snow v. Foley (1875), 119 Mass. 102 ; Johnson v. Harrowby (1859), 1 DeGex F. & J. (62 Bng. Ch.) 183, payable out of the same fund and equally free from legacy duty ; Barnes v. Hanks (1883), 55 yt. 317, payable out of same fund ; Warwick v. Hawk- ins (1852), 5 DeGex & S. 481, equally to the separate use of the legatee and free from control by her husband ; Shaftesbury v. Marlborough (1835), 7 Simon (10 Eng. Ch.) 237, free from legacy tax. 24 A Leading Case. Crowder v. Clowes (1794), 2 Ves. Jr. 449, also be raised out of same fund; Thompson v. Churchill (1888), 60 Vt. 371, 14 Atl. 699. 25 Not to Benefit Gift Over. Bu- chanan v. Lloyd (1885), 64 Md. 306, 310, 1 Atl. 845, holding original gift, limiting to wife for life remainder to children not applicable to added leg- acy, to deprive residue ; More's Trusts (1852), 10 Hare (44 Eng. Ch.) 171. "Where there is a gift to A for life, and after his decease to B, and then another gift to A tit addition to what was before given, there is no authority for carrying on the series of limita- tions to the later gift. * * • In no case has it been held that the later gift is to go to the parties entitled under the subsequent limitations of the former gift." Per Wood, V. C, in Mann v. Fuller (1854), Kay 624, 626. 26 Effect of Intervening Events. Laveaga's Estate (1898), 119 Cal. 651, 51 Pac. 1074; Tilden v. Tilden (1859), 13 Gray (79 Mass.) 193. 27Leveaga's Estate (1898), 119 Cal. 651, 51 Pac. 1074. 28 Condict v. King (1861), 13 N. J. Eq. 375, 381. CHAPTER XXI. EIGHTS AND LIABILITIES OF DEVISEES AND LEGATEES. 1. Nature and kinds of Gifts, as to Subject Matter. ! 703. Kinds Enumerated. ! 704. Devises. 8 705. Specific Legacies. S 706. General Legacies. { 707. Demonstrative Legacies. § 708. Specific Legacies Re- sembling Demonstra- tive. ! 709. Difference In Bights under the above. 2. Ademption of Legacies. S 710. Ademption Defined. A. Ademption by Disposition or Destruction of Subject-Mat- ter. 1711. If the Specific Thing no Longer Exists. ■i 712. When the Thing Has Lost its Identity. § 713. Ademption by Removal. § 714. Effect on General Lega- cies. B. Ademption by Satisfaction. a. Express Declaration of Inten- tion and Methods of Proving It. ' { 715. Importance of Testa- tor's Intention. § 716. Subsequent Express Satisfaction. S 717. Statue of Limitations. § 718. Express Provision in 8. the Will. i 719. Construction of Such Provisions. § 720. Interest on Advances. 8 721. Evidence Competent to Prove or Disprove Sat- isfaction. 6. Presumption of Intention from Express Object of Leg- acy. § 722. General Rule, o. Presumptions Arising from Re- 4. latlons between Legatee and Testator. § 723. Subsequent Gift by Tes- tator not in Loco Pa- rentis. 476 (724. By Testator In Loco Parentis — General Statement | 725. 1. T e s tator Must be Parent or In Loco Parentis — Why. Who is In Loco 8 726. 5 727. Parentis. 2. The Gift Must Have Been Sub- sequent to the Making of the Will. S728. 3. The Gift In the Will Must Have Been of Personalty. i 729. 4. Legacy and Gift Must Have Been of Same Nature. 5. The Legacy Must Have Been Gen- eral. 6. The Legacy Must Have Been for a Certain Amount. 7. The Gift S730. 8 731. 1732. S733. S734. Must Have Been to the Legatee. 8. The Gift Must Have Been Sub- stantial. 9. The Payment Must Have Been Gra- tuitous. Satisfaction of Debts by Legacies. A. By Legacies to Debtors. § 735. General Rule. 8 736. What Shows Intention to Forgive Debt. ! 737. Parol Proof of Inten- tion. 8 738. Adjustment. B. By Legacies to Creditors. 8 739. General Rule. 8 740. When the Rule Is In- applicable. Abatement of Legacies. 8 741. Intestate Personalty. 8 742. Residuary Gifts. 8 743. General Legacies. 8 744. Specific Legacies. 8 745. Demonstrative Legacies. 477, BIGHTS OP DEVISEES. 703 i 746. Intestate Lands. 8 752. i 747. Lands Devised. General Legacies Charged on Land and Specific Legacies. f 758. $ 748. Rule when no Intention Appears. { 754. { 740. Charge Implied from Residue Clause. 8 755. & 750. Devises to Executors. § 751. Charge Implied from 8 756. Lack of Assets. Charge Implied from Other Gifts of All Per- sonalty. Charge Implied from Relations to Legatee. Construction of Express Charges. General Legacies Charged on Specific. Remedies of the Lega- tee. L NATURE AND KINDS OE GIFTS, AS TO SUBJECT MATTER. § 703. Kinds Enumerated. In considering the rights and liabilities of legatees and devisees it is necessary to observe the nature of the gift, as the same rights and lia- bilities do not attach to all. For this purpose gifts may be classified as: 1, specific; 2, general; 3, demonstrative. § 704. Devises. All gifts of land were arbitrarily held to be specific at common law, regardless of the form of expression or the generality of the gift, and snch seems to be the doctrine still in England and quite generally here. 2 But some modifications have been admitted by American courts in view of the statutes making devises include after-acquired lands. 3 § 705. Specific Legacies.! A specific legacy is a gift of an individual thing, or group of things, as distin- guished from everything else of the same kind. In such gifts something individual is singled out and described in such a way that the legatee is entitled to that very thing, and could object to any substitution of an equiva- lent, regardless of the value of either. 4 The courts are 2 Robertson v. Broadbent (1883), L. R. 8 App. Cas. 812, 53 L. J. Ch. 266, Mechem 02, 50 L. T. 243, 32 W. R. 205. Conversion. A direction to buy land does not constitute a specific de- vise. McFadden v. Hefley (1888), 28 8. Car. 317, 5 S. E. 812, 13 Am. St. Rep. 675, and cases there cited. t Devises Hot Always Specific. Kelly v. Richardson (1893), 100 Ala. 684, 13 So. 785; Woodworth's Estate (1867), 31 Cal. 595; Farnum v. Bas- eom (1877), 122 Mass. 282; Martin, In re (1903), 25 R. I. 1, 54 Atl. 589; McFadden v. Hefley (1888), 28 S. Car. 317, 5 S. E. 812, 13 Am. St. Rep. 675. t Notes on Specific Legacies. 6 Pro. R. A. 273-9. * Specific Legacies Defined. United States — Kenaday v. Slnnott (1900), 179 D. S. 606, 21 S. Ct. 233, 6 Pro. R. A. 258. Delaware — Cooch v. Cooch (1879), 5 Houston (Del.) 540, 1 Am. St. Rep. 161, Mechem 159. Indiana — Roquet t. Hldrldge (1889), 705 WILLS. 478 opposed to holding legacies specific, and will not dc so unless the intention is clear. 5 A gift of "my" horse, stock, or what not, is prima facie specific. 6 When a fund is charged with payment of debts or legacies a gift of the residue of it is held not to be specific. 7 118 Ind. 147, 20 N. E. 733, Mechem 88, H. & B. Eg. Cas. 143. Iowa — Evans v. Hunter (1892), 86 Iowa 413, 15 N. W. 277, 17 L. R. A. 308, 41 Am. St. Rep. 503, holding a gift of "four thousand dollars In United States government bonds" gen- eral so that the legatee was not en- titled to delivery of the identical bonds owned by the testator, though he had just that many. Maryland — Lettig v. Hance (1895), 81 Md. 416, 32 Atl. 343. Massachusetts — Farnum v. Bascom (1877), 122 Mass. 282, holding a gift of a sum secured by mortgage specific ; Tomlinson v. Bury (1887), 145 Mass. 346, 14 N. E. 137, 1 Am. St. Rep. 464, Abbott 617, holding a bequest of "all the mill stock and bank stock remain- ing in my name after the decease of my wife" to be a specific bequest not liable to contribute to make up de- ficiency; White v. Winchester (1827), 23 Mass. (6 Pick.) 48, holding a spe- cific legacy to be created by the words, "I hereby order and direct my execu- tors • * • to appropriate and ex- pend • • * all the Income of the following property, * * * to wit, twenty-seven shares in the Beverly bank, and ten and a half shares in the Marblehead bank, and fifteen shares in the Union Marine Insurance office," because the testator had Just that many shares in each company when he made his will, so that the legacy was adeemed as to the shares sold by the testator afterwards — a valuable case by reason of the extended review of similar English cases. Michigan — Wheeler v. Wood (1895), 104 Mich. 414, 62 N. W. 577, holding a gift of a mortgage specific. New Jersey — Wyckoflf v. Perrine (1883), 37 N. J. Eq. 118, Mechem 90; Moore v. Moore (1892), 50 N. J. Eq. 561, 25 Atl. 403; Klngsland v. Kings- land (1900), 60 N. J. Eq. 65, 47 Atl. 69, holding a bequest of two cows, and charging a devise with pasturage for them, was general, and entitled the legatees to pasturage for any cows, though the testator had none at his death. New York — Crawford v. McCarthy (1899), 159 N. Y. 514, 54 N. E. 277, 4 Pro. R. A. 681. North Dakota — Adair v. Adair (1902), 11 N. Dak. 175, 90 N. W. 804. Pennsylvania — McMahon's Estate (1890), 132 Pa. St. 175, 19 Atl. 68, holding a gift of a mortgage specific ; Sponsler's Appeal (1884), 107 Pa. St. 95, holding that "to the said Alice fifteen shares of ' second preferred' Cumberland Valley R. R. stock," was a general bequest, though the testator had just that many shares of such stock when the will was made. Rhode Island — Martin, In re (1903), 25 R. I. 1, 54 Atl. 589. South Carolina — McFadden v. Hef- ley (1888), 28 S. Car. 317, 5 S. E. 812, 13 Am. St. Rep. 675. English — Robertson v. Broadbent (1883), L. R. 8 App. Cas. 812, 53 L. J. Ch. 266, 50 L. T. 243, 32 W. R. 205, Mechem 92; Nottage, In re (1895), 2 Ch. D. 657, 64 L. J. Ch. 695, 73 L. T. 265, 44 W. R. 22, — C. A., holding a specific bequest created by the words, "I give to my trustees before named 5,O0OZ. debenture stock or shares of the London," &c. ; Gray, In re (1887), 36 Ch. D. 205, 56 L. J. Ch. 975, 57 L. T. 132, 35 W. R. 795, holding that a specific bequest was not created by the words "fifty shares in the York Union Banking Co. to T and G," so that the legatee was entitled to the value of shares held when the will was made, not the new ones taken in exchange. 6 Favor Holding General. See Kena- day v. Sinnott, cited above ; Evans v. Hunter (1892), 86 Iowa 413, 53 N. W. 277, 41 Am. St. Rep. 503, 17 L. R. A. 308; Wilcox v. Wilcox (1866), 13 Allen (95 Mass.) 252, 256; Martin, In re (1903), 25 R. I. 1, 54 Atl. 589. e Harvard Un. Soc. v. Tufts (1890), 151 Mass. 76, 23 N. B. 1006, 7 L. R. A. 390. t Lettig v. Hance (1895), 81 Md. 416, 32 Atl. 343. 479 BIGHTS OF DEVISEES. § 706 § 706. General Legacies. The legacy is general when it is so given as not to amount to a bequest of a particular thing as distinguished from all others of the same kind. 8 A bequest of all the testator's personal estate except a specified part is a general legacy. 9 But a bequest of all his personal property in a specified place is specific. 10 §707. Demonstrative Legacies. 11 A demonstrative legacy is a gift of a sum of money with direction that it shall be paid out of a designated fund, or charging speci- fied property with the payment of it. It partakes of the nature of both general and specific legacies ; it is specific in that a fund primarily charged with payment of it is specifically described and pointed out; it is general in that the whole estate is liable for its payment. Whether a legacy is to be treated as demonstrative or as depending exclusively on the particular fund for payment is a ques- tion of intention not governed by any arbitrary rules. There are two rules which aid in determining such ques- tions; 1, the courts are inclined against holding legacies to be specific, 2, and if a legacy of a certain amount is given with direction that it shall be paid out of a specified fund, the court presumes that it is demonstrative, pay- able at all events, whether the specified fund is sufficient or not. 12 8 General Legacies Defined. See 153, holding that "this amount is in cases cited above in which specific are notes such as the executor may turn distinguished from general. out to them," did not enable the ex- 9 Bequests of All Personalty Oen- ecutor to discharge the legacies by eral. Kelly v. Richardson (1893), 100 turning out worthless notes, and was Ala. 584, 13 So. 785 ; Cooch v. Cooch not adeemed by the testator collect- (1879), 5 Houston (Del.) 540, 1 Am. tng all the good notes held by him St. Rep. 161, Mechem 159 ; Robertson when the will was made. v. Broadbent (1883), L. R. 8 App. Maine — Additon v. Smith (1891), Cas. 812, 53 L. J. Ch. 266, 50 L. T. 83 Me. 551, 22 Atl. 470; Moore v. 243, 32 W. R. 205, Mechem 92. Alden (1888), 80 Me. 301, 14 Atl. 199. 10 Bequests oy Location Specific. Massachusetts — Smith v. Fellows McFadden v. Hefley (1888), 28 S. Car. (1880), 131 Mass. 20. 317, 5 S. B. 812, 13 Am. St. Rep. 675. Minnesota — Eggleston v. Merriam n Notes on Demonstrative Legacies. (1901), 83 Minn. 98, 85 N. W. 937, 4 Pro. R. A. 687-9. 86 N. W. 444 ; Merriam v. Merriam 12 Demonstrative Legacies De- (1900), 80 Minn. 254, 83 N. w. 162. fined. Maryland — Gelbach v. Shively Iowa— Newcomb's Will (1896), 98 (1887), 67 Md. 498, 10 Atl. 247. Iowa 175, 67 N. W. 587; Frank v. Michigan — Byrne v. Hume (1891), Frank (1887), 71 Iowa 846, 33 N. W. 86 Mich. 546, 49 N. W. 576. 708 WILLS. 480 §708. Specific Legacies Resembling Demonstrative. Only gifts of money are demonstrative. If the testator gives the legatee "a horse to be selected from those in my stable," or "ten shares of my stock Union Trust Com- pany," these legacies are specific, and payable only out of the horses in the testator's stable, the stock he then owned in the Union Trust Company, or as the case may be. 13 If a legacy is given payable only out of a specified fund it is a specific, not a demonstrative legacy. 14 If payment is to be made only out of the property charged, another perplexing question often arises. Was it a gift of income or a gift of an annuity? If it was of income only the corpus cannot be reduced to make it. If it was an annuity it is payable to the extent of exhausting the corpus. 16 Tennessee — Martin v. Osborne (1887), 85 Tenn. 420, 3 S. W. 647, holding that hy a bequest of "$10,000 In cash, stocks, notes, or bonds as I may leave," the legatee was not con- fined to such property as the testator had of the kind, but was entitled to have the deficiency made up. Vermont — Boomhower v. Babbitt (1895), 67 Vt. 327, 31 Atl. 838, hold- ing that a gift of an annuity of $300 with direction to invest a fund suffi- cient to secure payment of It entitled the annuitant to payment out of the general estate on failure of the fund. Virginia — Morriss v. Garland (1883), 78 Va. 215. In Ford v. Fleming (1728), 2 P. Wins. 469, a bequest of 401 out of a debt secured by mortgage was held not adeemed by testator recovering the debt by suit, since it was pre- sumed he feared loss of the debt rather than to defeat the legacy. 13 Only Pecuniary Legacies Demon- strative. See cases cited in note above; Mullins v. Smith (1860), 1 Drewry & Sm. 204, 8 W. E. 739. 14 Legacies Payable Exclusively out of Fund Named. District of Columbia — Kaiser v. Brandenburg (1900), 16 App. D. C. 310, holding that a direction to sell a stock of goods and divide the proceeds between his sisters and brother was a specific bequest, and not liable to abate with general legacies. Indiana — New Albany Trust Co. v. Powell (1902), 29 Ind. App. 494, 64 N. E. 640, holding a bequest of 200 shares of stock specific and adeemed by sale of the stock, though no par- ticular shares were specified. Maryland — Gelbach v. Shively (1887), 67 Md. 498, 10 Atl. 247. Michigan — Wheeler v. Wood (1895), 104 Mich. 414, 62 N. W. 577, holding the following a specific legacy : "I give • * * $400 to be paid by my ex- ecutor assigning and transferring to the said H a certain real estate mort- gage upon the farm owned," &c. New York — Davis v. Crandell (1886), 101 N. T. 311, 4 N. E. 721, holding a bequest of "the sum of $243.92, a portion of the debt due me from said James Davis, secured by his notes," to be specific, so that the ex- ecutor was liable for failure to deliver within a year. So. Carolina — Johnson v. Johnson (1897), 48 S. Car. 408, 26 S. E. 722. England — Grainger, In re (1900), 2 Ch. D. 756, 69 L. J. Ch. 789, 83 L. T. 209, 49 W. R. 197. 16 Whether Annuity or Income. Addlton v. Smith (1891), 83 Me. 551, 22 Atl. 470; Smith v. Fellows (1880), 131 Mass. 20; McFadden v. Hefley (1888), 28 S. Car. 317, 5 S. B. 812, 13 Am. St. Rep. 675. 481 EIGHTS OF DEVISEES. § 709 § 709. Difference in Rights Under the Above. A spe- cific legacy fails if the specific thing does not exist when the testator dies. A general legacy is payable if there is anything to pay with. A specific legacy is not taxed to pay legacies not expressly charged on it; nor is it liable to pay debts till everything not specifically bequeathed has been exhausted in making such payment. A demon- strative legacy has the advantage of a specific one as long as the fund remains, and has the advantages and is subject to the disadvantages of a general legacy after the fund fails. General legacies are not subject to ademp- tion by sale or the like, and are subject to ademption by satisfaction. The reverse is true of specific legacies. These and other differences will more fully appear as we proceed. 2. ADEMPTION OF LEGACIES.19 § 710. Ademption Defined. The word ademption is used in two senses: 1, to signify the loss of a devise or specific legacy by the property being destroyed, losing its identity, or being sold by the testator before his death, so that he has no such specific thing at his death to be de- livered to the donee, and this is its strict and more ap- propriate meaning; 2, it is used as a synonym of satis- faction, to signify that the testator has been his own executor and himself conveyed the land or paid the legacy to the donee. 17 Ademption of devises by conveyance has i« See notes 37 Am. Dec. 667-671. is presumed. At least a different in- 17 Ademption Defined oy Fuller, 0. J. tention in that regard which is not "Without going into refinements in re- expressed will not be Implied, although spect of the definition of the word the intention which is expressed re- 'ademption,' it may be said to be the lates to something which has ceased extinction or withdrawal of a legacy to exist." Kenaday v. Sinnott (1900), in consequence of some act of the 179 U. S, 606, 21 S. Ct. Eep. 233, 6 testator equivalent to its revocation, Pro. R. A. 258. or clearly indicative of an Intention Definition by Baldwin, J. "A total to revoke. The satisfaction of a gen- ademption by acts of the testator oc- eral legacy depends on the intention curs in two cases only: 1, when he of the testator as Inferred from his gives in his lifetime to a legatee what acts, hut the ademption of a specific he had left him In his will ; or, 2, legacy is effected by the extinction of when, before his death, he so deals the thing or fund bequeathed, and the with the subject of the bequest as to intention that the legacy should fall render It Impossible to effectuate the 31 §711 WILLS. 482 already been considered. 18 We will now consider: 1, ademption by disposition or destruction of the subject- matter of the gift ; and, 2, ademption by satisfaction. A. Ademption bt Disposition or Destruction of Subject-Matter. § 711. If the Specific Thing no Longer Exists and the proceeds of it can no longer be identified the legacy is adeemed, regardless of the testator's intention, and the legatee is entitled to nothing in the place of it. The same result is reached if the testator sold or in any way lost his interest in it before his death. 19 § 712. When the Thing Has Lost its Identity. The only questions of difficulty arise in cases in which the testator retains the article itself in a modified form. Slight or immaterial changes in the form of the property will not work ademption. By the later authorities the question in such cases is made to turn to some extent on the intention of the testator. 20 Nothing done by the transfer or payment which the will directs." Quoted from Connecticut T. & S. D. Co. t. Chase (1903), 75 Conn. 683, 55 Atl. 171. 18 See ante §§ 368-371. 19 Loss of Identity or Interest. Douglass v. Douglass (1898), 13 App. D. C 21, holding a bequest of "ten thousand dollars in registered United States bonds, and ten thousand dollars in lawful money, the latter to be de- rived from my other property not mentioned in the foregoing," was spe- cific as to the bonds and adeemed by the sale of them by the testator ; New Albany Trust Co. v. Powell (1902), 29 Ind. App. 494, 64 N. E. 640; Frahm's Estate (1903), — Iowa — , 94 N. W. 444; Brady v. Brady (1894), 78 Md. 461, 28 Atl. 515 ; Harvard Dn. Soc. v. Tufts (1890), 151 Mass. 76, 23 N. E. 1006, holding a bequest of stock adeemed by a sale of the stock ; White v. Winchester (1827), 23 Mass. (6 Pick.) 48, reviewing many English cases holding bequests of stock adeemed by sale of the stock ; Wyckoff v. Perrine (1883), 37 N. J. Eq. 118, Mechem 90, holding a legacy to tes- tator's daughter of a debt due from her husband adeemed by bankruptcy of her husband and payment to the tes- tator by the commissioners in bank- ruptcy ; Ametrano v. Downs (1901), 70 N. T. S. 833, 62 App. Div. 405, holding a devise of lands adeemed by the lands being taken by eminent do- main, and that the devisee was not entitled to the money awarded for the lands. See also full discussion of ademption of devise by conveyance ante §§ 368-371. 20 No Ademption by Slight Changes. United States — Kenaday v. Sinnott (1900), 179 U. S. 606, 21 S. Ct. Rep. 233, 6 Pro. R. A. 258, holding that a bequest to the testator's wife of de- posits in the bank "amount to $10,000 more or less," entitled her to bonds to the amount of about $9,000, pur- chased after the will was made, using the money on deposit in the bank, and reducing it by that amount. Connecticut — Connecticut T. & S. D. Co. v. Chase (1903), 75 Conn. 683, 55 Atl. 171, holding bequests to be paid out of the proceeds of a parcel of land not to be adeemed by the tes- tatrix's selling the land and taking back a mortgage for the unpaid part of the price. 483 EIGHTS OF DEVISEES. §713 executors after the death of the testator will work ademp- tion, if enough had not been done during the life of the testator to cause it. 21 §713. Ademption by Removal. When the will de- scribes the property given only by its location, mere re- moval of the property to another place works ademp- tion. 22 § 714. Effect on General Legacies. The doctrine of ademption by destruction, sale, or change of form, does not apply to general legacies; they are not adeemed by the sale or destruction of any or all the testator's prop- erty. 23 Georgia — Beall v. Blake (1854), 16 Ga. 119. Iowa — Frahm's Estate (1903), — Iowa — , 94... N. W. 444, arranging with the corporation, the stocks In which were the subject of the bequest, to surrender them for other stocks and bonds, death occurring before the agreement was carried out. Kentucky — Miller v. Malone (1900), 109 Ky. 133, 58 S. W. 708, holding a bequest of the proceeds of land to be sold by the executor was not adeemed by a sale by the testator. New Jersey — Prendergast v. Walsh (1899), 58 N. J. Eq. 461, 42 Atl. 1049, holding a bequest of money deposited in certain banks not adeemed by the money afterwards being drawn out and deposited in another bank, where it was when the testator died. North Carolina — Nooe v. Vannoy (1861), 6 Jones Eq. (59 N. Car.) 185, holding a devise of the proceeds of land the executors were directed to sell was not adeemed by a sale by the testator. Rhode Island — Peirce, In re (1903), 25 K. I. 34, 54 Atl. 588, holding a legacy of bank stocks not adeemed by consolidation of the original bank with others, with exchange of shares ; Tillinghast, In re (1901), 23 R. I. 121, 49 Atl. 634, holding a beqnest of mortgages described as belonging to testatrix's mother's estate not adeemed by the trust company charg- ing them on its books to the name of the testatrix, and that all the securi- ties delivered to her and by her con- verted to money were adeemed. Vermont — Bradley's Will (1901), 73 .Vt. 253, 50 Atl. 1072, holding a be- quest of the proceeds of a life insur- ance policy not adeemed by receiving the amount of the policy and deposit- ing it in the bank, it appearing that the testator had the amount rather than the character of the property in mind. England — Dowsett, In re (1901), 1 Ch. D. 398, 70 L. J. Ch. 149, 49 W. K. 268. Pledging the specific thing be- queathed does not work ademption. The legatee Is entitled to have the ex- ecutor redeem the pawn and deliver the legacy. Knight v. Davis (1833), 3 Mylne & K. (9 Eng. Ch.) 358. Sale by Agent Before Will Made. In Patton v. Patton (1856), 55 N. Car. (2 Jones Eq.) 494, it was held that one given a specific legacy that had been sold by the testator's agent, with- out his knowledge, before the will was drawn, was entitled to the value of the legacy out of the estate. 21 Acts of Executor no Ademption. Frahm's Estate (1903), — Iowa — , 94 N. W. 444, completing the exchange of corporate stocks and bonds agreed to by the testator. 22 Ademption by Removal. See cases cited ante § 518. 23 General Legacies — No Ademption oy Bale. Evans v. Hunter (1892), 86 § 715 WILLS. 484 B. Ademption by Satisfaction." a. EXPRESS DECLARATION OP INTENTION AND METHODS OP PROVING IT. §715. Importance of Testator's Intention. In the matter of ademption of legacies by satisfaction the in- tention of the testator is the whole question. It is the only question. Unlike satisfaction of legal obligations, the intention of the legatee and his competency to give a release are wholly immaterial. 25 § 716. Subsequent Express Satisfaction. If the sub- sequent gift is declared or agreed at the time to be in sat- isfaction of the previous legacy it must be so treated re- gardless of the form of the agreement, the declaration, or the previous legacy; 26 except that it has been held that devises of land are not subject to ademption by satis- faction, and therefore can be avoided only by ademption by conveyance or by revoking the devise according to the statute. 27 On the other hand, a provision that the amounts due the testator from the legatees shall be deducted from the legacies does not authorize deduction of amounts afterwards paid to the testator. 28 § 717. Statute of Limitations. The gift being an im- Iowa 413, 53 N. W. 277, 41 Am. St. Fed. 536, 24 C. C. A. 198, which is the Rep. 503, 17 L. R. A. 308 ; Littig T. same case. Hance (1895), 81 Md. 416, 32 Atl. 27 Express Release of Devise In- 343; Bradley's Will (1901), 73 Vt. valid. Burnham v. Comfort (1888), 253, 50 Atl. 1072. 108 N. Y. 535, 15 N. E. 710, 2 Am. 24 See note 12 L. R. A. 569. St. Rep. 462. But see Hansbough v. 25 Intention Controls. Allen v. Al- Hooe (1841), 12 Leigh (Va.) 316, 37 len (1879), 13 S. Car. 512, 36 Am. Am. Dec. 659, and Carmichael v. La- Rep. 716. throp (1896), 108 Mich. 473, 66 N. W. Legacies on Consideration could not 350, 32 L. R. A. 232. be adeemed without consent of the In Leggett v. Davidson (1902), — legatee. Jaques v. Swasey (1890), 153 Mich. — , 90 N. W. 1060, objection was Mass. 596, 27 N. E. 771, 12 L. R. A. made that parol proof of payments 566. would be a revocation of the will as 26 Empress Release. Hay ward v. to legacies without complying with the Loper (1893), 147 111. 41, 35 N. B. statute; but the objection was not 225. sustained. Agreements With Administrators 28 Repayment to Testator After and executors by legatees after the Will. Howe v. Howe (1903), — Mass. death of the testator depend on dlf- — , 67 N. E. 639 ; Leggett v. Davidson ferent considerations. See Adams v. (1902), — Mich. — , 90 N. W. 1060; Cowan (1899), 177 D. S. 471, 20 S. Carpenter v. Soule (1882), 88 N. T. Ct. 668, 5 Pro. R. A. 572, affirming 78 251, 42 Am. Rep. 248. 485 EIGHTS OP DEVISEES. § 718 mediate extinction of the legacy if the testator so in- tended it, the legatee cannot object to its being consid- ered a satisfaction because it would have been outlawed as a loan by the death of the testator. 30 The rule would seem to be otherwise if the payment was intended as a loan, not as an advance satisfaction. 31 §718. Express Provision in the Will. The case would seem to be clear when the testator expressly declares in the will that past or future advances, or both, shall, or shall not, be deemed or taken in satisfaction. Yet there is no doubt that he might still make subsequent satis- faction, or a gift without satisfaction, regardless of such a provision, the express provision controlling only in ab- sence of a different understanding at the time of the gift. On the other hand, a mere vacillation of intention, after the advance was made, to charge it or not to charge it, would not control. 32 § 719. Construction of Such Provisions. Questions often arise as to the construction of such provisions. 33 3« Statute of Limitations. Baker v. (1900), 60 N. J. Eq. 202, 46 Atl. 577. Safe Dep. & T. Co. (1901), 93 Md. 368, New York — Rogers v. Rogers (1897), 49 Atl. 623. 153 N. T. 343, 47 N. E. 452, holding 31 See the cases cited post § 719 that a provision that the children in notes 34, 35. should not be charged with advances 32 Frye v. Avrltt (1902), — Ky. — , that had been made did not prevent 68 S. W. 420, 24 Ky. L. R. 183. charging them with advances made 33 Construction Of Directions as afterwards to a firm of which legatee to Advances. was a memoer - United States— Adams v. Cowan North Carolina — Lee v. Baird (1899), 177 U. S. 471, 20 S. Ct. 668, (1903), 132 N. Car. 755, 44 S. E. 605. 5 Pro. R. A. 572, afflirming 78 .Fed. Pennsylvania — Snider v. Snider 536, 24 C. C. A. 198, holding that a (1892), 149 Pa. St. 362, 24 Atl. 284, provision that the children should not holding that by virtue of a provision be charged with advances made or to that "all notes held by me at the time be made, and reciting that such ad- of my death against any of toy chil- vances had been charged on the books dreu shall be treated as advance- did not limit the provision to such ments and deducted from the shares of advances as had been charged on the the respective beneficiaries," a note books. held against a son who received no Iowa Davis v. Close (1897), 104 share was cancelled ; Keiser v. Keiser Iowa 261, 73 N. W. 600, holding a (1901), 199 Pa. St. 77, 48 Atl. 811, gift of $1,000 "to be paid by deducting holding that the executor can not en- the same from the amount he owes me, ter up judgment on a note by a Iega- as evidenced by notes I hold on him," tee if the will provides that all loans adeemed by the surrender of the notes shall be considered as advances and be to the legatee by the testator. deducted from the shares of the lega- New Jersey — Bartine v. Davis tees. § 720 WILLS. 486 Whether such provisions require anything to be refunded if more than the amount of the legacy is advanced, and in cases of gifts to a class whether the excess may be de- ducted from the amount due the rest, are often questions of difficulty; but no general rule can be stated. 34 Clearly if the advances were intended as absolute gifts when made there could be no recovery of excess over the leg- acy. 35 A provision that lands given should be appraised at their value with improvements did not mean with im- provements made by the devisee. 36 Entries in the tes- tator's books are competent to determine the mode of computation. 37 § 720. Interest on Advances. A direction to deduct the "amounts" of notes of the legatee held by the testa- tor, was held to mean without interest, because the tes- tator must have intended a substantial provision. 38 The general rule is that interest is not charged on advances but it is proper to charge interest from payment if the testator so directs in the will. 39 § 721. Evidence Competent to Prove or Disprove Sat- isfaction. Being wholly a matter of intention in making Virginia — Breckinridge v. Breckln- could not recover it from the estate of ridge (1898), 98 Va. 561, 31 S. E. his son. Albert v. Albert (1891), 74 892, holding the rights of substituted Md. 526, 22 Atl. 408. issue subject to advances made to 36 Ballinger v. Connable (1897), their parent under a will providing 100 Iowa 121, 69 N. W. 438. that the mother should use the prop- 37 Baker v. Safe Dep. & T. Co. erty for life, make portions for the (1901), 93 Md. 368, 49 Atl. 623. children as they became of age or mar- 38 Interest on Advances. Garth v. ried, and at the death of the mother Garth (1897), 139 Mo. 456, 41 S. W. the property should be divided between 238. the children, and If any should die 39 Baker v. Safe Deposit & T. Co. leaving issue their share should go to (1901), 93 Md. 368, 49 Atl. 623; such issue. Howe v. Howe (1903), — Mass. — , 34 Refunding Surplus. Such ques- 67 N. E. 639 ; Wilkins v. Wilkins tions were involved in the following (1888), 43 N. J. Eq. 595, 12 Atl. 620; cases: Baker v. Safe Dep. & T. Co. Hays v. Freshwater (1899), 47 W. Va. (1901), 93 Md. 368, 49 Atl. 623; 217, 34 S. E. 831; Davies v. Hughes ■Trice v. Douglass (1889), 150 Mass. (1890), 86 Va. 909, 11 S. E. 488. 96, 22 N. E. 583 ; Ritch v. Hawr- If There is an Express Provision for hurst (1889), 114 N. Y. 512, 21 N. E. the payment of interest the running 1009; Keiser v. Keiser (1901), 199 Pa. of Interest stops on the death of the St. 77, 48 Atl. 811 ; Tucker v. Moye testator, the legacy being immediate (1894), 115 N. Car. 71, 20 S. E. 186. and no rights of creditors being in- 35 When Gift Absolute. Being an volved. Newcomb's Will (1896), 98 absolute gift at the time or afterwards Iowa 175, 180, 67 N. W. 587. released as an advancement, the father 487 RIGHTS OF DEVISEES. §722 the gift, it is held that a presumption of satisfaction aris- ing from the circumstances may be rebutted by parol proof of the testator's declarations of intention made at the time of the gift or afterwards; and in the same man- ner, or by any other evidence ordinarily competent to prove intention, an intention to make the gift in satis- faction of the legacy may be shown. 40 b. PRESUMPTION OF INTENTION PROM EXPRESS OBJECT OP LEGACY. §722. General Rule. When the gift is made for a special purpose expressly stated in the will, the gift is adeemed or satisfied if the object so stated is accom- plished by the testator while he lives. 41 C. PRESUMPTIONS ARISING PROM THE RELATIONS BETWEEN LEGA- TEE AND TESTATOR. § 723. Subsequent Gift by Testator Not in Loco Pa- rentis. No presumption of intention to satisfy a legacy arises from the testator giving the legatee anything sim- ilar in kind and value to the legacy in the will previously made, if the testator did not stand in loco parentis to the legatee. 42 § 724. By Testator in Loco Parentis— General State- 40 Evidence to Prove Intent. Leg- enough to save her from loss by reason gett v. Davidson (1902), — Mich. — , of taking a certain mortgage on his 90 N. W. 1060 ; Carmlchael v. La- advice lost her right to anything by throp (1896), 108 Mich. 473, 66 N. W. reason of the testator paying her the 350, 32 L. R. A. 232 ; Van Houten v. full amount of the principal and in- Post (1880), 33 N. J. Eq. 344; Miner ter'est for the place; Furness, In re v. Atherton (1860), 35 Pa. St. 528; (1901), 2 Ch. D. 346, 70 L. J. Ch. 580, Allen v. Allen (1879), 13 S. Car. 512, 84 L. T. 680; Parkhurst v. Howell 36 Am. Rep. 716. (1870), L. R. 6 Ch. App. 136. 41 Legacies for Specified Purpose. In Bird's Estate (1890), 132 Pa. St. Tanton v. Keller (1897), 167 111. 129, 164, 19 Atl. 32, a legacy given for the 47 N. E. 376, holding a legacy charged education of minor children was held on a residuary legacy adeemed by pay- not adeemed by the children becoming ment to the legatee by testator; Tay- of age and the fact that the testator lor v. Tolen (1884), 38 N. J. Eq. 91, had expended some money in educat- holding a legacy of $2,500 given to a ing them. church to pay the church debt was a No Presumption of Satisfaction adeemed by the testator's paying the from Gift. Rogers v. French (1856), debt, though It was only $2,100; Hine 19 Ga. 316, H. & B. Eq. Cas. 145; v. Hine (1863), 39 Barb. (N. Y.) 507; Swalls v. Swails (1884), 98 Ind. 511; Johnson's Estate (1902), 201 Pa. St. Wallace v. Du Bols (1886), 65 Md. 513, 51 Atl. 342, holding that one to 153, 4 Atl. 402; Wilson v. Smith whom the testator directed payment of (1902), 117 Fed. 707. § 725 WILLS. 488 ment. A bequest made to a person by his parent, or by one standing in the place of a parent to him, is presumed to be adeemed or satisfied by a subsequent gift in the life time of the testator when and only when all of the fol- lowing specifications concur; if any one of these speci- fications are lacking the legacy is presumed not to be satisfied by the subsequent gift. §725. 1. Testator Must be Parent or in Loco Parentis— Why. It has been thought hard that a pre- sumption should be raised against a child which would not obtain against anyone else, as if the parent would do less for his offspring than for a stranger. Yet the rule is not without good reason to support it. The law pre- sumes that the testator did not intend to give a double portion to any child, but to treat all alike. The gifts to the children are considered in the nature of a distribution by the testator of his estate among his family, "paying the debt of nature," and subsequent gifts are deemed to be advanced portions, by analogy to the law of advance- ments, which applies only in case of intestate succession. There is no room for such presumptions in gifts to stran- gers. 43 § 726. Who is in Loco Parentis. One is in loco parentis for this purpose who assumes the parental duty to provide for the child.* 4 On the ground that there was no duty or assumed obligation to provide, it has been 43 Why Gift By Parent Satisfaction, the presumption of satisfaction by ad- Watson v. Lincoln (1756), Ambler vances to children was reversed by the 325; Roquet v. Bldridge (1889), 118 statutes of that state and that one Ind. 147, 20 N. E. Rep. 733, Mechem claiming that satisfaction was in- 88, H. & B. Eq. Cas. 143 ; Car- tended must allege it. michael v. Lathrop (1896), 108 Mich. a Who is in Loco Parentis. "The 473, 66 N. W. 350 ; Weiss, In re Test seems to be whether the cir- (1902), 78 N. T. S. 877, 39 Misc. 71. cumstances, taken in the aggregate, The Occasion for making the subse- amount to a moral certainty that the quent gift is not important. It is of testator considered himself in the the testator's choosing. It need not place of the child's father." Weston be on marriage or any other special v. Johnson (1874), 48 Ind. 1, finding event. Leigh ton v. Leighton (1874), no evidence that the grandfather had L. R. 18, Eq. Cas. 459. assumed the relation of a parent to Statutory Changes in Presumption, provide, and quoting the above from In Swinbroad v. Bright (1901), — Roper on Legacies 382. Ky. — , 62 S. W. 484, it was held that 489 EIGHTS OF DEVISEES. §727 held that the presumption does not apply and the legacy is not satisfied hy the subsequent gift by a mother to her child, 45 by a father to his illegitimate child. 46 And for the same reason it has been held that the rule applied when that relation and duty is assumed, the testator being the legatee's uncle, 47 uncle's wife, 48 grandfather, 49 or a stranger in blood who had provided her a home. 60 It has been held that the relation must have existed when the will was made. 51 § 727. 2. The Gift Must Have Been Subsequent to the Making of the Will. Advances made prior to the making of the will are thereby extinguished, 52 unless it appears from the will that the testator intended them to be deducted or otherwise considered. 53 Republication by codicil after the legacy has been satisfied does not renew the legacy. 54 45 Bennet v. Bennet (1879), 10 Ch. D. 474, 40 L. T. 378, 27 W. R. 573. See also Sprenkle's Appeal (Pa., 1888), 15 Atl. 773, finding no relation of parent and child between the tes- tator and his housekeeper. 46Pye, Ex parte (1811), 18 Ves. 140, in which the question is discussed at length by Lord Eldon, a case much cited; Rogers v. French (1856), 19 Ga. 316, H. & B. Eq. Cas. 145. 47Powys v. Mansfield (1836), 3 Mylne & Cr. (14 Eng. Ch.) 359, a case considerably cited, in which the doc- trine is discussed at length. 48 Pollock, In re (1885), 28 Ch. D. 552, 54 L. J. Ch. 489, 52 L. T. 718 — C. A. 49 Pym v. Lockyer (J841), 5 Mylne & Cr. (46 Eng. Ch.) 29; Watson v. Watson (1864), 33 Beavan 574. so Jaques v. Swasey (1890), 153 Mass. 596, 27 N. E. 771, 12 L. R. A. 566. si Watson v. Watson (1864), 33 Beavan 574. But this does not seem very consistent with the theory which is based on the motive in making the subsequent gift. 52 Gift Must be Subsequent. Cum- 1 ming's Estate (1903), — Iowa — , 94 N W 1117; Jaques v. Swasey (1890), 153 Mass. 596, 27 N. E. 771, 12 L. R. A. 566; Crawford, In re (1889), 113 N. Y. 560, 21 N. E. 692, 5 L. R. A. 71 ; Van Houten v. Post (1880), 33 N. J. Eq. 344. In Erwin v. Smith (1895), 95 Ga. 699, 22 S. E. 712, it was held that parol evidence was not competent to show that the testator intended ad- vances made to the daughter's husband before executing the will should be deducted from the legacy thereby given ber. S3 As in Case of Intestacy- As is the case when the will provides that property shall be distributed as in case of intestacy ; which of necessity includes the doctrine of advance- ments; Trammel v. Trammel (1897), 148 Ind. 487, 47 N. E. 925 ; Raiford v. Raiford (1849), 6 Ired. Eq. (41 N. Car.) 490; Stewart v. Stewart (1880), 15 Ch. D. 539. From the language of the court in Jaques v. Swasey (1890), 153 Mass. 596, 27 N. E. 771, 12 L. R. A. 566, it would seem that the fact might be shown by extrinsic evidence. 64 Republication Does Not Renew Adeemed Legacy. Hopwood v. Hop- wood (1859), 7 H. L. Cas. 728, 5 Jur. (n. s.) 897; Tanton v. Keller (1897), 167 111. 129, 47 N. E. 376; Paine v. Parsons (1833), 31 Mass. (14 Pick.) 728 WILLS. 490 § 728. 3. The Gift in the Will Must Have Been of Personalty. This doctrine applies only to legacies. A devise is not affected by any subsequent gift, payment, or other transaction, as long as the testator retains the land and leaves the will unrevoked. There is no equity in support of the distinction, but it is well established. 55 § 729. 4. Legacy and Gift Must Have Been of Same Nature. It has long been established that there is no satisfaction of the legacy if the property given was of a different nature from that bequeathed by the will; for example, the legacy in money, the gift a stock of jew- elry; 56 the legacy money, the gift land; 57 the legacy money, the gift a leasehold. 1 If it appears that the tes- tator so intended it, the gift will be deemed in satisfac- tion though the property was not of the same nature. 58 It is not necessary that the bequest shall be entirely for the child or that the subsequent advance is precisely iden- tical in time and circumstances, it is enough if it is sub- stantially the same. 59 318; Langdon v. Astor- (1857), 16 N. Y. 9, 57; Howze v. Mallett (1858), 4 Jones Eq. (57 N. Car.) 194. 65 Not Applicable to Devises. Wes- ton v. Johnson (1874), 48 Ind. 1; Swails v. Swails (1884), 98 Ind. 511; Fisher v. Keithley (1897), 142 Mo. 244, 43 S. W. 650, 64 Am. St. Rep. 560; Burnham v. Comfort (1888), 108 N. T. 535, 15 N. B. 710, 2 Am. St. Rep. 462; Allen v. Allen (1879), 13 S. Car. 512, 36 Am. Rep. 716; Clark v. Jetton (1857), 5 Sneed (37 Tenn.) 229, H. & B. Eg. Cas. 148. Contra: Hansbough v. Hooe (1841), 12 Leigh (Va.) 316, 37 Am. Dec. 659, Tucker, P., dissenting. The distinction Is somewhat dis- countenanced by the court in the case of Carmichael v. Lathrop (1896), 108 Mich. 473, 66 N. W. 350, 32 L. R. A. 232, though the only point ruled was that a legacy was satisfied by a vol- untary subsequent deed of land, it ap- pearing that the testator Intended It as a satisfaction. A Gift of the Same Land by deed would of course work ademption as to what passed by the deed the same as if the land had been sold to a stranger ; Pickett v. Leonard (1889), 104 N. Car. 326, 10 S. E. 466; Marshall v. Rench (1868), 3 Del. Ch. 239. se Must be Same Nature. Holmes v. Holmes (1783), 1 Brown Ch. 555. 57 Legacy Not Adeemed by Gift of Land. Dugan v. Hollins (1853), 4 Md. Ch. 139, 141 ; Clark v. Jetton (1857), 5 Sneed (37 Tenn.) 229; Marshall v. Rench (1868), 3 Del. Ch. 239 ; but see Carmichael v. Lathrop (1896), 108 Mich. 473, 66 N. W. 350. i Grave v. Salisbury (1785), 1 Brown Ch. 425. 58 Intention Controls. May v. May (1856), 28 Ala. 141, 157; Carmichael v. Lathrop (1896), 108 Mich. 473, 66 N. W. 350, reviewing several decis- ions. Jones v. Mason (1827), 5 Rand. (Va.) 577, 16 Am. Dec. 761. 59 Need Not Be Identical. Hine v. Hlne (1863), 39 Barb. (N. Y.) 507, 511; In re Furness (1901), 2 Ch. D. 346, 70 L. J. Ch. 580, 84 L. T. 680. 491 RIGHTS OF DEVISEES. §730 § 730. 5. The Legacy Must Have Been General. It is often held that the doctrine now being discussed has no application to specific but only to general lega- cies. 60 But in the case of specific legacies, if the legatee has the very thing already, he cannot have it again, from the very nature of the case; and if it is demonstrative and the fund is given to him absolutely in the life of the tes- tator, the legacy is adeemed as much as if the legacy were general, if indeed there is any distinction between general and demonstrative legacies as to this method of ademp- tion. 61 Especially is this true when the legacy is charged against one of the devisees and the subsequent payment made by him. 62 § 731. 6. The Legacy Must Have Been for a Cer- tain Amount. The early English rule undoubtedly was that the doctrine of presumed satisfaction of legacies by subsequent gifts did not apply to gifts of residue or other uncertain amounts; 63 and such is held to be the law in a number of our states. 64 It has been discarded in England since the fall of the rule that satisfaction was complete by payment of part, and it is believed that now the rule is generally one of intention, depending on the circumstances. 65 § 732. 7. The Gift Must Have Been to the Lega- tee. A legacy is not adeemed by a subsequent gift to the eoTanton v. Keller (1897), 167 111. In Glasscock v. Layle (1899, Ky.), 129, 47 N. B. 376 ; Weston v. Johnson 53 S. W. 270, It was held that ademp- (1874), 48 Ind. 1. tion of a bequest of one-ninth of the 61 Davis v. Close (1897), 104 Iowa estate was shown by payment of $400 261, 73 N. W. 600. and written discharge signed by the 62 Roquet v. Eldridge (1889), 118 legatee. Ind. 147, 20 N. E. 733, Mechem 88, H. 65 Need Not Be Certain. Thynne v. & B. Eq. Cas. 143. Glengall (1848), 2 H. L. Cas. 131, 12 63 Legacy Must be Certain. Fara- Jur. 805, the leading case ; Monteflore ham v. Phillips (1741), 2 Atk. 215; v. Guedalla (1859), 6 Jur. (n. s.) 329; Freemantle v. Bankes (1799), 5 Ves. Carmichael v. Lathrop (1896), 108 79. Mich. 473, 66 N. W. 350, 32 L. B. A. 64 Davis v. Whittaker (1882), 38 232; Van Houten v. Post (1880), 32 Ark. 435, 449 ; Clendening v. Clymer N. J. Eq. 709 ; Miner v. Atherton (1861), 17 Ind. 155; Duncan v. Clay (1860), 35 Pa. St. 528; Allen v. (1877), 13 Bush (76 Ky.) 48; Clark Allen (1879), 13 S. Car. 512, 36 Am. v. Jetton (1857), 5 Sneed (37 Tenn.) Rep. 716. 229, H. & B. Eq. Cas. 148. § 733 WILLS. 492 legatee's husband. 66 But a legacy to a daughter was deemed satisfied pro tanto by a subsequent marriage set- tlement on her and her family. 67 §733. 8. Gift Must Have Been Substantial. Small gifts are not counted at all. They are presumed to have been intended as presents. 68 The doctrine once was that any subsequent gift of a substantial amount was a satisfaction of the whole legacy, because the tes- tator had the right to fix the amount. 69 But the rule now is that it is a satisfaction only to the extent of the subsequent gift. 70 § 734. 9. The Payment Must Have Been Gratui- tous. The doctrine is also inapplicable if the payment or transfer was made for a valuable consideration or in discharge of a legal obligation. 71 3. SATISFACTION OF DEBTS BY LEGACIES." A. By Legacies to Debtors. § 735. General Rule. The mere fact of a pecuniary legacy to one who is indebted to the testator raises no presumption of an intention by the testator to forgive the debt, in addition to the legacy. 73 66 Not Satisfied By Gift to Another. 113 N. T. 560, 21 N. B. 692, 5 L. R. A. Hart v. Johnson (1888), 81 Ga. 734, 71. 8 S. E. 73, holding that It could not he 69 Pye Ex parte (1811), 18 Ves. 140. so considered though the testator 70 Only Satisfaction Pro Tanto. afterwards declared out pf the hear- Pollock, In re (1885), 28 Ch. D. 552, ing of the legatees or their husbands 54 L. J. Ch. 489, 52 L. T. 718 — C. A. ; that he Intended the gift of $500 made following Pym v. Lockyer (1840), 5 to the husband at the marriage as an Mylne & Cr. (46 Eng. Ch.) 29, a lead- ademption of the legacy previously ing case in which the former decisions given the daughter by his will, fol- are reviewed at length and the mod- lowing, Ravenscroft v. Jones (1863), era doctrine established ; Carmichael 32 Beavan 669. v. Lathrop (1896), 108 Mich. 473, 66 But the rule seems to he otherwise N. W. 350, 32 L. R. A. 232 ; Van as to advancements in case of lntes- Houten v. Post (1880), 33 N. J. Eq. tacy. Frye v. Avritt (1902, Ky.), 68 344. S. W. 420. 71 Fisher v. Keithley (1897), 142 6T Furness, In re (1901), 2 Ch. D. Mo. 244, 43 S. W. 650, 64 Am. St. Rep 346, 70 Li. J. Ch. 580, 84 L. T. 680. 560; Clark v. Jetton (1857), 37 Tena 68 Watson v. Watson (1864), 33 (5 Sneed) 229, 235, H. & B. Eq. Cas Beavan 574; State v. Crossley (1879), 148. 69 Ind. 203, in which gifts amounting 72 See note 2 White & Tud. L. Cas. in all to about a tenth of the legacy (6 ed.), appended to Chancey's Case were held not to he considered as part pp. 382-411. satisfaction; Crawford, In re (1889), 73 Wo Presumption of Intent to For- 493 EIGHTS OF DEVISEES. § 736 § 736. What Shows Intention to Forgive Debt. An intention to forgive the debt in addition to the legacy has been held not to be shown by the fact that the will required a debt to be deducted from a legacy given to another; 74 or declared the legacy to the debtor to be "inclusive of the note;" 75 or declared "all the foregoing legacies * * * to be for the individual estate of the said legatees, exclusive of any indebtedness to me at this date or others," from which an intention was found only to require payment to be made without set-off, the debts, to be collected in the ordinary way. 76 An express release of "all debts due me," or direction to cancel "all notes I have," has been held not to include subsequent debts and notes. 77 §737. Parol Proof of Intention. When suit is brought for a legacy a prima facie case is made by proof of the will. When this is rebutted by proof of a debt due from the plaintiff to the deceased, parol evidence that the debt has been forgiven does not vary the terms of the will; and on this ground it has been held that intention to forgive the debt may be shown by parol give. Brown v. Selwin (1734), Cas. T. 76 Baldwin v. Sheldon (1882), 48 Talb. 240, a leading case ; Carey v. Mich. 580, 12 N. W. 872. Goodinge (1790), 8 Brown Ch. 110; In Neville v. Dulaney (1893), 89 Spath v. Ziegler (1896), 48 La. An. Va. 842, 17 S. B. 475, It was held that 1168, 20 So. 663 ; Blackler v. Boott an intention to forgive all debts was (1873), 114 Mass. 24; Baldwin v. shown by the words, "all of the lega- Sheldon (1882), 48 Mich. 580, 12 N. cies to be paid and delivered « • • W. 872; Rickets v. Livingston (1800), without deductions of any kind • • 2 Johns. Cas. (N. T.) 97, 1 Am. Dec. * and that no charge be made against 158, holding, however, that an indorse- any of my legatees by reason of any ment on the bond by the testator was money passing from me to them at not sufficient proof of the assumption any time prior to my death," though of the debt by the legatee; Clarke v. the brother-in-law sued had given his Bogardus (1834), 12 Wend. (N. T.) notes for $5,000 and was bequeathed 67, declaring the doctrine In the text only a pair of rifles. and holding the debt not discharged 77 See ante § 523 note 51. by giving a legacy to the debtor's In Waterman v. Alden (1892), 143 wife; Baily's Estate (1893), 156 Pa. U. S. 196, 8 Am. Pro. R. 193, it was St. 634, 27 Atl. 560; Pepper's Estate held that direction to deliver up and (1893), 154 Pa. St. 340, 25 Atl. 1063; cancel all the notes the testator might Zeigler v. Eckert (1843), 6 Pa. St 13, hold against the legatees at the time 47 Am. Dec. 428. of his death did not include a note by 74 Blackler v. Boott (1873), 114 a legatee and others given after the Mass. 24. will was made. 76 Pepper's Estate (1893), 154 Pa. St 340, 25 Atl. 1063. § 738 WILLS. 494 proof of the declarations of the testator, at the iime the will was made, as to his intention. 78 § 738. Adjustment. A court of equity will not enable the executor to set off an unmatured claim, by enjoining an action for the legacy till the claim shall mature; 79 but if the claim is matured the executor may set it off, 80 depositing the note or other evidence of the debt in court to be surrendered and cancelled. 81 If the testator was surety for the legatee, the executor may set off the de- mand as soon as he has paid the debt, though after action brought for the legacy. 82 . If a debt is forgiven by will it is nevertheless merely a legacy, not operating as a present extinguishment; and, therefore, the debt con- tinues to draw interest till the legacy is payable, 83 and the legatee may be called on by the executor for con- tribution if there is a shortage of assets. 84 B. By Legacies to Creditors. § 739. General Rule. It is an ancient rule that when a testator gives to his creditor a legacy equal to or ex- ceeding the amount of the debt, the legacy is to be under-' stood as a satisfaction of the debt, and that the legatee is not entitled to recover both. 85 But the rule has long 78Zeigler v. Eckert (1843), 6 Pa. 84 Cole v. Covington (1882), 86 N. St. 13, 47 Am. Dec. 428, citing a Car. 295, 41 Am. Eep. 458. But see number of English cases, which are Hobart v. Stone (1830), 10 Pick. (27 not entirely in harmony. See also Mass.) 215. Gilliam v. Brown (1871), 43 Miss. 641. «6Debt Presumed Satisfied. Note. See many cases collected in Leading Cases. Atkinson v. Webb note on this point in 1 Eden Ch. 40. (1704), 2 Vera. 478; Chancey's Case 79 Hayes v. Hayes (1859), 2 Del. (1725), 1 P. Wms. 408, 2 White & Ch. 191, 73 Am. Dec. 709. Tud. L. Cas. Eq. (6 ed.) 379. 80Blackler v. Boott (1873), 114 Massachusetts — Allen v. Merwin Mass. 24; Clarke v. Bogardus (1834), (1876), 121 Mass. 378; Strong v. Will- 12 Wend. (N. T.) 67. iams (1815), 12 Mass. 390, 7 Am. Dec. A Devise to a Debtor without men- 81, H. & B. Eq. Cas. 133. tloning the debt does not impliedly Mississippi — Gilliam v. Brown make the debt a charge on the land. (1871), 43 Miss. 641. La Foy v. La Foy (1887), 43 N. J. New Jersey — Adams v. Adams Eq. 206, 10 Atl. 266. (1896), 55 N. J. Eq. 42, 35 Atl. 827, in si Howe v. Howe (1903), — Mass. which it was mooted whether the be- — , 67 N. E. 639. quest must exceed both principal and 82BaiIy's Appeal (1893), 156 Pa. interest. St. 634, 27 Atl. 560. New York— Reynolds v. Robinson 83 Bowen v. Evans (1886), 70 Iowa (1880), 82 N. T. 103, 37 Am. Rep. 555. 368, 30 N. W. 638. Pennsylvania — Horner v. McGaughy 495 BIGHTS OF DEVISEES. §740 been regarded with disfavor and strictly applied. If there are any circumstances to take the case out of the operation of the rule the testator's words will be taken, according to their plain meaning, as gift not payment. 88 Parol evidence of the testator's declarations as to his intention has been held inadmissible. 87 § 740. When the Rule is Inapplicable. The rule does not apply, and the legatee is entitled to both the legacy and the debt, if the legacy is in any way less favorable than the debt, though more favorable in other respects. 88 The legatee is entitled to both, if the legacy is for a less amount, 89 not as soon payable, 90 contingent, 91 or uncer- tain in amount like a residue, 92 or if of different nature, 93 not directly to the creditor, 94 or given before the debt was contracted, 9B or before it became liquidated. 96 If the will requires the executor to pay the testator's debts the operation of the rule is avoided. 97 (1869), 62 Pa. St. 189, an excellent case for the student to get the doctrine In small compass. 86 Rule Not Favored. See the cases cited above and In the following sec- tion. 87 Declarations Incompetent. Cloud v. Clinkinbeard (1848), 8 B. Mon. (49 Ky.) 397, 48 Am. Dec. 397. 88 Strong v. Williams (1815), 12 Mass. 390, 7 Am. Dec. 81, H. & B. Eq. Cas. 133. As if Bubject to legacy duty. Atkinson v. Webb (1704), 2 Vern. Ch. 478. 89 Deichman v. Arndt (1891), 49 N. J. Eq. 106, 22 Atl. 799, H. & B. Eq. Cas. 135 ; Huston v. Huston (1873), 37 Iowa 668; Reynolds v. Eobinson (1880), 82 N. T. 103, 37 Am. Bep. 555. 90 Cloud v. Clinkinbeard (1848), 8B. Mon. (49 Ky.) 397, 48 Am. Dec. 397; Horner v. McGaughy (1869), 62 Pa. St. 189; Clark v. Sewell (1744), 3 Atk. 96; Calham v. Smith (1895), 1 Ch. D. 516, 64 L. J. Ch. 325, 72 L. T. 223, 43 W. E. 410. 91 Byrne v. Byrne (1817), 3 S. & R. 54, 8 Am. Dec. 641 ; Stewart v. Con- rad (1902), 100 Va. 128, 40 S. E. 624, 7 Pro. R. A. 454. 92 Stewart v. Conrad (1902), 100 Va. 128, 40 S. E. 624, 7 Pro. R. A. 454. 93 Huston v. Huston (1873), 37 Iowa 668, the debt evidenced by two notes of $100 each, the gift two par- cels of land, a judgment for $125, and a shotgun; Deichman v. Arndt (1891), 49 N. J. Eq. 106, 22 Atl. 799, H. & B. Eq. Cas. 135, holding a devise of land never a satisfaction of a debt payable In money. 94 Reynolds v. Robinson (1880), 82 N. Y. 103, 37 Am. Rep. 555. 96 Horner v. McGaughy (1869), 62 Pa. St. 189; Heisler v. Sharp (1888), 44 N. J. Eq. 167, 14 Atl. 624; Sulli- van v. Latimer (1892), 38 S. Car. 158, 17 S. E. 701. 96 Glover v. Patten (1897), 165 V. S. 394, 411; Cloud v. Clinkinbeard (1848), 8 B. Mon. (49 Ky.) 397, 48 Am. Dec. 39,7 ; Gilliam v. Brown (1871), 43 Miss. 641 ; Reynolds v. Robinson (1880), 82 N. T. 103, 37 Am. Rep. 555 ; Horner v. McGaughy (1869), 62 Pa. St. 189. 97 Leading Case. Chancey's Case (1725), 1 P. Wms. 408, 2 White & T. Lead. Cas. (6th ed.) 379 ; Wade v. Dean (1897, Ky.), 43 S. W. 441; Cloud v. Clinkinbeard (1848), 8 B. Mon. (49 Ky.) 397, 48 Am. Dec. 397; Deichman v. Arndt (1891), 49 N. J. §741 WILLS. 496 4. ABATEMENT OF LEGACIES.i §741. Intestate Personality. The personal estate is the primary fund for the payment of debts, and first the intestate portion of it if any; this must be exhausted before resorting to anything else. 3 §742. Residuary Gifts. Till all debts and all other legacies are fully satisfied there is no residue. It abates to make up all deficiencies. 3 An exception to this rule is created by statute in most states providing that the portion of a child born after the will is made shall be made up from all the devises and legacies in equal proportion; under these statutes each beneficiary under the will contributes his share as if his were the only gift in the will, the residue sharing pro rata with the rest. 4 §743. General Legacies must abate proportionately in case of deficiency of assets. 5 If a general legacy is Eq. 106, 22 Atl. 799, H. & B. Bq. Cas. 135; Reynolds y. Robinson (1880), 82 N. Y. 103, 37 Am. Rep. 555. 1 See note on Abatement of Lega- cies, 8 Am. St. Rep. 720-726. 2 Hays y. Jackson (1809), 6 Mass. 149, Mechem 150 ; Cooch v. Cooch (1879), 5 Houston (Del.) 540, 1 Am. St. Rep. 161, Meehem 159. 3 No Residue Till All Satisfied. Merritt y. Merritt (1887), 43 N. J. Eq. 11, 10 Atl. 835, holding that a di- rection to invest a fund sufficient to secure an annuity of $1,000 required a deficiency arising from reduction in the rate of Interest to be made up against the residuary legatees ; Rob- ertson v. Broadbent (1883), L. R. 8 App. Cas. 812, 53 L. J. Ch. 266, 50 L. T. 243, 32 W. R. 205, Mechem 92. Enumeration of articles in the resi- duary clause does not make the gift specific as to them so as to avoid the operation of this rule. Le Rougetel y. Mann (1885), 63 N. Hamp. 472, 3 Atl. 746; Martin, In re (1903), 25 R. I. 1, 54 Atl. 589. Residue From Lapse of other lega- cies Is subject to the same rule. The residuary legatee takes nothing till all other legatees have been made good the amount they lost by abatement to pay debts, or from shortage in the as- sets to pay all in full. See ante § 521. Residue After Life Estate. The same Is true of a residue after a life es- tate. It goes to make up deficiencies in general legacies before the residuary legatee takes anything. Presbyterian Theo. Sem. v. Fidelity T. & S. V. Co. (1902), — Ky. — , 68 S. W. 427, 24 Ky. L. R. 244. Parol Trusts by One Legatee. When a testator, intending to stay execu- tion of his will till a provision for an- other legacy can be prepared, is in- duced to execute the will at once without such provision, by reason of the promise of one of the residuary legatees to see that testator's wishes as to the other legacy are performed, the legatee making the promise does not have to hear more than his portion of the reduction to make up the promised legacy. Tearance y. Powell (1897), 55 N. J. Eq. 577, 37 Atl. 735. 4 Exception by Statute. Lutjen v. Lutjen (1902), 63 N. J. Eq. 391, 51 Atl. 790; Ross's Estate (1903), — Cal — , 73 Pac. 976. 5 General Legacies In Proportion. Additon v. Smith (1891), 83 Me. 551, 22 Atl. 470; Towle v. Swasey (1870), 106 Mass. 100; Duncan v. Inhabitants 497 BIGHTS OF DEVISEES. §744 sustained by a valuable consideration, such as the relin- quishment of a debt, or of a claim of dower, and the right to that claim subsists at the death of the testator, the legatee is entitled to full payment in preference to the other legacies. 6 A legatee claiming priority on this- ground must give clear and conclusive proof of his claim. 7 Likewise when preference is claimed by the terms of the will, it is allowed only when the intention to give preference appears beyond dispute. 8 §744. Specific Legacies do not abate at all to pay general legacies, and abate to pay debts only after all the personal property not specifically bequeathed is ex- hausted. 9 (1887), 43 N. J. Bq. 143, 10 Atl. 546, Mechem 96, Abbott 619 ; Morse v. Til- den (1901), 72 N. T. S. 30, 35 Misc. 560; Teel v. Hilton (1899), 21 R. I. 227, 42 Atl. 1111. e Except Legacies in Payment. Leading Case. "This is an old doc- trine, originating with Lord Cowper in Burridge v. Bradyl (1710), 1 P. Wms. 127, adopted by Lord Hardwick in Blower v. Morret (1752), 2 Ves. Sr. 420, which has so extensively prevailed as never to have been dissented from that we can discover, either in the English or American cases." Quoted from Peters, C. J., in Moore v. Alden, below. Maine — Moore v. Alden (1888), 80 Me. 301, 14 Atl. 199, in lieu of dower. Massachusetts — Farnum v. Bascom (1877), 122 Mass. 282, husband re- leasing right to half of personalty by assenting to will ; Towle v. Swasey (1870), 106 Mass. 100, the statute re- quiring the widow to elect when no intention to give in addition to dower appeared ; Pollard v. Pollard (1861), 1 Allen (83 Mass.) 490, Ab- bott 620. Minnesota — Merriam v. Merriam (1900), 80 Minn. 254, 264, 83 N. W. 162. New Hampshire — Ellis v. Aldrich (1900), 70 N. Hamp. 219, 47 Atl. 95. New Jersey — Duncan v. Inhabitants (1887), 43 N. J. Eq. 143, 10 Atl. 546, Mechem 96, Abbott 619. 32" Pennsylvania — The interest on $25,- 000 being given in lieu of dower, and therefore not liable to abate, it was held that on the widow's death her daughter taking her share would re- ceive only in proportion to the rest. Porepaugh's Estate (1901), 199 Pa. St 484, 49 Atl. 236. t Legatee Must Have Clear Case. Additon v. Smith (1891), 83 Me. 551, 22 Atl. 470, holding it insufficient that by accepting the will the widow sur- rendered her privilege of applying to the probate for an allowance ; Duncan v. Inhabitants (1887), 43 N. J. Eq. 143, 10 Atl. 546, Mechem 96, Abbott 619, holding it insufficient that the will stated the legacy to be in payment for services rendered, there being no proof that the services were not gratuitous or the claim outlawed. 8 Blower v. Morret (1752), 2 Ves. Sr. 420; Additon v. Smith (1891), 83 Me. 551, 22 Atl. 470; Moore v. Moore (1892), 50 N. J. Bq. 561, 25 Atl. 403. 9 Specific Legacies. Towle v. Swasey (1870), 106 Mass. 100, being a spe- cific bequest of "whatever may be on deposit" in a named bank ; Page v. Bldredge Pub. Lib. Assn. (1899), 69 N. Hamp. 575, 45 Atl. 411, holding a devise of houses and the contents not liable to contribute to make up de- ficiencies in general legacies ; Mc Mahon's Estate (1890), 132 Pa. St. 175, 19 Atl. 68. § 745 WILLS. 498 § 745. Demonstrative Legacies have the same advan- tage. 10 But when a demonstrative legacy becomes gen- eral by failure of the fund on which it is /charged, it abates with other general legacies. 11 § 746. Intestate Lands must be exhausted in paying debts before devised lands can be taxed for them. 12 § 747. Lands Devised in residue must be exhausted before land specifically devised are taxed. 13 Accord- ing to the English rule devises were not taxed at all to pay any legacies not charged on them, and abated to pay debts only after all bequests of per- sonalty had abated and the personalty been used for that purpose, 14 except in the case of specialty debts, as to which the burden was equally distrib- uted between specific legacies and devises. 15 But in several of our states it is held that specific devises and specific legacies abate pro rata to pay all debts. 16 Gen- eral devises abate before specific devises. 17 5. GBNEEAL LEGACIES CHARGED ON LAND AND SPECIFIC LEGACIES.18 § 748. Rule When No Intention Appeals. In the ab- sence of anything to show a different intention by the io Demonstrative Legacies. Noble v. land are not considered as devises of Angus (1900), 73 Conn. 56, 46 Atl. land in such a sense as to prevent such 278, 5 Pro. It. A. 643, holding a devise gifts abating with general legacies in of a sum of money due on a mortgage case of deficiency to pay debts. Mc- not abated by the Insufficiency of the Fadden v. Hefley (1888), 28 S. Car. assets to pay annuities given by the 317, 5 S. B. 812 ; Hinton v. Plnke will. (1719,) 1 P. Wms. 539. nGelbach v. Shively (1887), 67 15 Long v. Short (1717), 1 P. Wms. Md. 498, 10 Atl. 247. 403. 12 Intestate Land. Hays v. Jackson 16 Devises and Legacies Abate To- (1809), 6 Mass. 149, Mechem 150. gether. Kelly v. Richardson (1893), 13 Devised Land. Hays v. Jackson 100 Ala. 584, 13 So. 785 ; Woodworth'g (1809), 6 Mass. 149, Mechem 92. Estate (1867), 31 Cal. 595; Farnum v. 1* Robertson v. Broadbent (1883), Bascom (1877), 122 Mass. 282; Hal- L. R. 8 App. Cas. 812, 53 L. J. Ch. lowell's Estate (1854), 23 Pa. St. 223. 266, 50 L. T. 243, 32 W. R. 205, 17 Farnum v. Bascom (1877), 122 Mechem 92; Cooch v. Cooch (1879), 5 Mass. 282. Houston (Del.) 540, 1 Am. St. Rep. 18 See Notes — 8 Am. St. Rep. 720; 161, Mechem 159 ; Martin, In re 6 Pro. R. A. 455-7 ; 2 Pro. R. A. 256- (1903), 25 R. I. 1, 54 Atl. 589. 261. See also an article on this ques- Equitaole Conversion. But bequest tion by Judge W. J. Gaynor in 44 Alb. and directions to the executor to buy Law J. (Sept. 5, 1891) 186. 499 EIGHTS OF DEVISEES. §749 testator, no land was liable at common law for the pay- ment of any legacy. The personal estate was the pri- mary fund for such payment, and to the extent that it was deficient the legacies failed. 19 Such is still the law where not changed by statute. 20 § 749. Charge Implied from Residue Clause. A gift of the residue, consisting of both real and personal prop- erty, in one mass, is generally held a sufficient fact in itself to charge such residue, both real and personal, with the payment of all the general legacies mentioned in the will. 21 But in New York this fact alone is held insuf- ficient. 22 § 750. Devises to Executors. When land is devised 19 Leading Case. Kightley y. Kight- ley (1794), 2 Ves. Jr. 328. 20 Land Not Liable for Legacies. Newsom v. Thornton (1886), 82 Ala. 402, 8 So. 261, 60 Am. Rep. 743; Hoyt v. Hoyt (1898), 69 N. ' Hamp. 303, 45 Atl. 138; Brill v. Wright (1889), 112 N. Y. 129; 19 N. E. 628, 8 Am. St. Rep. 717, Mechem 153; Allen v. Mattison (1898, R. I.), 39 Atl. 241; Lee v. Lee (1892), 88 Va. 805, 14 S. B. 534. 21 Residue Implying Charge. United States — Lewis v. Darling (1853), 16 How. (57 U. S.) 1, 12; Walker v. Atmore (1892), 50 Fed. 644. Leading Case in England. Greville v. Browne (1859), 7 H. L. Cas. 689, 5 Jur. (n. s.) 849, 7 W. R. 673. Alabama — Gorman v. McDonnell (1900), 127 Ala. 549, 28 So. 964. Illinois — Reid v. Corrigan (1892), 143 III. 402, 32 N. E. 387; Stickel V. Crane (1901), 189 111. 211, 59 N. E. 595, 6 Pro. R. A. 446; Williams v. Williams (1901), 189 111. 500, 59 N. E. 966. Indiana — Davidson v. Coon (1890), 125 Ind. 497, 25 N. E. 601, 9 L. R. A. 584, Mechem 157. 7owa — peet v. Peet (1896), 99 Iowa 314, 68 N. W. 705, 1 Pro. R. A. 690; Newcomb's Will (1896), 98 Iowa 175, 67 N. W. 587. Massachusetts — Thayer v. Flnnegan (1883), 134 Mass. 62, 45 Am. Rep. 285. Mississippi — Knotts v. Bailey (1876), 54 Miss. 235, 28 Am. Rep. 350. Nebraska — Wilson v. Foss (1902, Neb.), 89 N. W. 300, 7 Pro. R. A. 531. New Jersey — Carter v. Gray (1899), 58 N. J. .Eq. 411, 43 Atl. 711 ; Turner v. Gibb (1901), 48 N. J. Eq. 526, 22 Atl. 580, citing a great many cases. North Carolina — Robinson v. Mclver - (1869), 63 N. Car. 645,. 649. Ohio — Moore v. Beckwith (1862), 14 Ohio St. 129, 135. • Pennsylvania — Davis's Appeal (1877), 83 Pa. St. 348; Gallagher's Appeal (1864), 48 Pa. St. 121, citing several earlier Pennsylvania cases. Virginia — Lee v. Lee (1892), 88 Va. 805, 14 S. E. 534. Wisconsin — Root's Will (1892), 81 Wis. 263, 51 N. W. 435, Mechem 155. Rebutting Presumption From Re- siduary Clause. The presumption of intention to charge the realty with payment of legacies which would ordi- narily arise from the facts above stated, may be rebutted by other cir- cumstances of the case. As in McKay's Estate (1900), 33 Misc. 520, 68 N. Y. S. 925; Peet v. Peet (1896), 99 Iowa 314, 68 N. W. 705, 1 Pro. R. A. 690. 22 Brill v. Wright (1889), 112 N. Y. 129, 19 N. E. 628, 8 Am. St. Rep. 717, Mechem 153. See also Allen v. Rud» dell (1898), 51 S. Car. 366, 29 S. E. 198. §751 WILLS. 500 to the executor, and he is directed anywhere in the will to pay the legacies, it is presumed that the testator in- tended to make the legacies a charge on the land devised if the other assets prove deficient. 23 There are a num- ber of cases holding also that the land not specifically devised is charged whenever the executors and residuary devisees are the same persons. 24 § 751. Charge Implied from Lack of Assets. An in- tention to charge land with the payment of legacies is held to appear from the mere fact of giving legacies to a considerable amount if the testator then had and knew that he had no other property, or not sufficient other property, out of which the payment could be made; /for it cannot be presumed that he was making a pretence on so solemn an occasion. 25 But to establish 23 Land Devised to Executor. Clowds- ley v. Pelham (1686), 1 Vera. Ch. 411 ; Lypet v. Carter (1750), 1 Ves. Sr. 499; Thayer v. Finnegan (1883), 134 Mass. 62, 45 Am. Eep. 285 ; Brown v. Knapp (1879), 79 N. T. 136, a case often cited in other states for this point. 24 Land Not Specifically Devised Made Liable by Residue to Executors. Van Winkle v. Van Houten (1834), 3 N. J. Eq. 172, 191. Contra: The authority of the older English cases to this effect seems to he somewhat shaken by the case of Par- ker v. Pearnley (1826), 2 Sim. & Stu. 592. In Peet v. Peet (1896), 99 Iowa 314, 68 N. W. 705, 1 Pro. R. A. 690, a leg- acy to a daughter was not charged on the devise to the son of certain land, though he was also executor and given all the residue of both realty and per- sonalty. In Paxson v. Potts (1835), 3 N. J. Eq. 313, it was held that the mere fact that the devisees were also the executors was not of itself, nor in connection with the fact that the lega- tee was the widow taking in lieu of dower, enough to charge the land specifically devised with the payment of the legacy. In Newsom v. Thornton (1886), 82 Ala. 402, 8 So. 261, 60 Am. Rep. 743, it was held that an intention to charge the payment of legacies on land given to the executor by specific devise could not he inferred from the fact that he was also given the residue, and that the will directed that the debts and legacies be paid. In Clotilde v. Lutz (1900), 157 Mo. 439, 57 S. W. 1018, 50 L. R. A. 847, land specifically devised to the execu- tor, some for life only, some in fee, was held charged with payment of leg- acies, there being very little person- alty, though the will also contained a residuary bequest of the personalty to the executor "after payment of all my Just debts, funeral expenses, and the foregoing bequests." 25 Lack of Personalty Implies Charge. Alabama — Gorman v. McDonnell (1900), 127 Ala. 549, 28 So. 964, hold- ing that lack of other funds was a strong circumstance tending to show intention. Connecticut — Cunningham v. Cun- ningham (1899), 72 Conn. 253, 43 Atl. 1046, finding an intention to charge legacies on land from the fact that by a will made three days before his death $6,500 in legacies were given by a testator leaving only $3,500 in per- sonalty. Illinois — Williams v. Williams (1901), 189 111. 500, 59 N. E. 966. Massachusetts — Thayer v. Finnegan 501' EIGHTS OF DEVISEES. 752 this presumption the legatee must prove both facts- lack of other assets, and knowledge by the testator. This means lack and knowledge when the will was made. Waste of fortune afterwards is not sufficient. 26 § 752. Charge Implied from Other Gifts of All Per- sonalty. A specific bequest of all the testator's per- sonalty to others shows clearly an intention to charge the general legacies on the land. 27 § 753. Charge Implied from Relations to Legatees. That the legatee is a child or even grandchild of the (1883), 134 Mass. 62, 45 Am. Rep. 285, holding a direction to the execu- tor to pay the college expenses of the testatrix's son was a charge on the real estate devised to the executor, amounting to $1,500, the personal es- tate amounting to only $20. Missouri — Clotilde v. Lutz (1900), 157 Mo. 439, 57 S. W. 1018, 50 L. R. A. 847, holding bequests to the extent of $5,000, by one not having enough personalty to pay funeral expenses, was charged on the land devised to her husband, who was made executor. Mississippi — Stuart v. Robinson (1902), 80 Miss. 290, 31 So. 903, the will being made but two days before the testator's death, she having no money. New Jersey — Lord v. Slmonson (1899, N. J. Ch.), 42 Atl. 741, holding the amount of the personal property an important circumstance. New Tork — Hogan v. Kavanaugh (1893), 138 N. T. 417, 34 N. B. 292, in which land was charged with pay- ment of two legacies of $500 each, the personalty left being worth only $250 ; Hoyt v. Hoyt (1881), 85 N. T. 142; McCorn v. McCorn (1885), 100 N. T. 511, 3 N. B. 480, in which a will was made one day before the death of the testator, who did not leave enough per- sonal property to pay his funeral ex- penses, from which it was found that he intended the legacies of $1,000, to his widow, and $400, to his son, to be paid out of his land ; Friefeld v. Man- kowski (1902), 37 Misc. 303, 75 N. T. S. 454. Ohio — Theobald V. Fugman (1901), 64 Ohio St. 473, 60 N. E. 606, held charged on the land because the tes- tator had no personalty out of which to make payment when the will was made. 2« Burden of Proof. Davidson v. Coon (1890), 125 Ind. 497, 25 N. B. 601, 9 L. R. A. 584, Mechem 157; McKay's Estate (1900), 68 N. Y. S. 925, 33 Misc. 520. 27 Implied by Disposition of Per- sonalty. Illinois — Reid v. Corrigan (1892), 143 111. 402, 32 N. B. 387. Indiana — Duncan v. Wallace (1887), 114 Ind. 169, 16 N. B. 137. Michigan — Thnrber v. Battey (1895), 105 Mich. 718, 63 N. W. 995. Massachusetts — Thayer v. Finnegan (1883), 134 Mass. 62, 45 Am. Rep. 285. Pennsylvania — Dickerman v. Eddin- ger (1895), 168 Pa. St. 240, 32 Atl. 41, in which the will made provision for the immediate distribution of all the personalty, leaving nothing but the realty from which to make payment of an annuity of $125 to his daughter for life. Mississippi — Perkins v. First Nat. Bank (1902), 81 Miss. 358, 33 So. 18, in which the whole estate with the exception of two legacies was given to the testator's wife, and one of the legacies, an annunity, was to be paid from the "money belonging to the es- tate," and nothing was left with which to pay the other except the land. New fork — Bevan v. Cooper (1878), 72 N. T. 317. Pennsylvania — Hershey's Estate (1901), 200 Pa. St. 562, 50 Atl. 199, finding an Intent to charge legacies on §754 WILLS. 502 testator, and is without any provision except the legacy, are considered very potent circumstances, in connection with slight other confirmation, to show that the testator intended the legacy to be paid at all events. 28 § 754. Construction of Express Charges. An endless variety of expressions have been used to create charges for the payment of legacies. It is difficult to lay down any general rule as to the construction of them. The courts usually give them a fair construction without ex- tending them beyond their plain scope. 29 land from the fact that the personal estate was all bequeathed to the testa- trix's husband, and directing the land to be sold and the husband given the income for life, remainder to her heirs. Bequests of All Personalty Not Specific. Ordinarily this would not be the result of a general bequest of all the personal estate in one mass, or of all except a part specified ; for such gifts are not usually held to be specific legacies. Robertson v. Broadbent (1883), L. E. 8 App. Cas. 812, 53 L. J. Ch. 266, 50 L. T. 243, 32 W. E. 205, Mechem 92. 28 Implied oy Relation to Legatee. Gorman v. McDonnell (1900), 127 Ala. 549, 28 So. 964 ; Thayer v. Finnegan (1883), 134 Mass. 62, 45 Am. Eep. 285 ; Van Winkle v. Van Houten (1824), 3 N. J. Eq. 172, 192; Hoyt v. Hoyt (1881), 85 N. Y. 142, 148; Moore v. Beckwith (1862), 14 Ohio St. 129, 134. 29 Construction of Express Charges. Maryland — Buchanan v. Lloyd (1898), 88 Md. 642, 41 Atl. 1075, hold- ing the farms devised were charged with payment of legacies, the devise reciting that it was made "in consid- eration of the payment" of the lega- cies. Missouri — Bakert v. Bakert (1900), 86 Mo. App. 83, holding that only rents and products of the land were meant by the direction to support testator's sisters "off of the proceeds of the farm." Pennsylvania — Walters's Estate (1901), 197 Pa. St. 555, 47 Atl. 862, holding the land and the devisee both liable by virtue of a devise condi- tioned on the legatee "having her liv- ing in the old homestead" ; Semple's Estate (1899), 189 Pa. St. 385, 42 Atl. 28, holding that a gift of all land and personalty to the widow subject to pay- ment of annuities created no personal charge on the widow: Wise's Estate (1898), 188 Pa. St. 258, 41 Atl. 526, holding the devised land charged with the payment of legacies by virtue of the words "being the balance he is to pay for the farm." Texas — Smith v. Cairns (1899), 92 Tex. 667, 51 S. W. 498, holding that a devise "after the above bequests and expenses are paid in full, I give and devise," &c, followed by several gen- eral bequests, and by a power to the executor to sell all the real estate ex- cept the homestead, created a charge on all the property real and personal except the homestead for payment of the legacies. Virginia — Todd v. McFall (1899), 96 Va. 754, 32 S. E. 472, holding that by a bequest of all personalty in one clause "subject to certain legacies hereinafter specified," followed by a devise of all the real property and later by a bequest payable out of "said estate," did not charge the realty with the payment of the legacies. Wisconsin — Hawkes v. Slight (1901), 110 Wis. 125, 85 N. W. 721, In which the fact that the child claiming the charge on the land given by the will would get nothing if the charge was not sustained against the defend- ant's claim of gift was considered an Important fact to sustain the charge. 503 EIGHTS OF DEVISEES. §755 §755. General Legacies Charged on Specific. Much the same rules apply "to the charging of general legacies on specific as apply to the charging of legacies on land. The specific legacies must pay the general if an intention that they shall appears from the will or from extrinsic circumstances. 30 § 756. Remedies of the Legatees. When one to whom land is devised is directed by the will to pay any lega- cies, such legacies become a direct charge on the land; and if the devise is accepted by the devisee may be en- forced against him personally also, regardless of the value of the land. 31 The legatee may proceed summarily in the probate court and get an order to the executor to pay the legacy charged. 32 Ordinarily the statute of lim- itations is no defense to an action to enforce the charge on the land. 33 In as much as the charge is matter of record in the will and by its probate notice to every one, any one dealing with the property takes it subject to England — McCarthy v. McCartie Pennsylvania — Hoover v. Hoover (1897), L. R. 1 Ir. 86, holding that <1847), 5 Pa. St. 351, Mechem 147. land specifically devised was not there- North Carolina — In Perdue v. Perdue by relieved from a prior express charge (1899), 124 N. Car. 161, 32 S. E. 492, on all land to pay legacies. it was held that a gift of all the 80 Specific Legacies Charged. Thur- testator's property to his grandson, ber v. Battey (1895), 105 Mich. 718, and stating that it was his desire that 63 N. W. 995. the g ran, Json should support his grand- _ . T j t. n j j. mother, mother, and sisters, during 3i Lien on Land From Order to tneir Ilfetimej dia not charge ' the lan * Pay, with such support. Arkansas — Millington v. Hill (1886), -^ ea t Virginia — Isner v. Kelley 47 Ark. 301, 1 S. W. 547; Williams v. (1902), 51 W. Va. 82, 41 S. B. 158 Nichol (1886), 47 Ark. 268, 1 S. W. Several Liability of Each. When 243. a devise is made to several charged Connecticut — Olmstead v. Brush with payment of legacies, one who ac- (1858), 27 Conn. 530. cepts only becomes personally liable Indiana — Porter v. Jackson (1884), for tne payment of his proportion. 95 Ind 210 Dunham v. Deraismes (1901), 165 N. 7 «,<^Huston v. Huston (1873), 37 J^ 648 ' 58 N " B - 789 > «» N - *>• Iowa 668. g2 Hammond . s Estate (i9oo. Pa.). Maine— Merrill v. Bickford (1876), 46 Atl _ 935 ' '* 65 Me. 118. 33 Statute of Limitations. Wolfer's Massachusetts— Thayer v. Finnegan Estate (1899, Pa.), 43 Atl 392 For (1883), 134 Mass. 62, 45 Am. Eep. exceptions see Millington v. Hill 285 - (1886), 47 Ark. 301, 1 S. W. 547; Michigan — Smith v. Jackman Congregational Church v. Benedict (1897), 115 Mich. 192, 73 N. W. 228. (1899), 59 N. J. Eq. 136, 44 Atl. 878. §756 WILLS. 504 the charge, and cannot require the ^legatees to look first to the personal liability of the executor and his bond. 34 34 Purchasers Take Subject to Lien. Stickel v. Crane (1901), 189 111. 211, 59 N. E. 595, 6 Pro. R. A. 446 ; Proctor Coal Co. v. Beams (1899, Ky.), 50 S. W. 533; Thayer v. Finnegan (1883), 134 Mass. 62, 45 Am. Rep. 285, holding that by joining the executor in giving a mort- gage on the land, the legatee had vol- untarily released a security for the payment of his legacy, and thereby dis- charged the executor's sureties from liability; Wilson v. Foss (1902, Neb.), 89 N. W. 300, T Pro. R. A. 531 ; Wal- ters's Estate (1901), 197 Pa. St. 555, 47 Atl. 862, holding the charge not affected by sheriff's sale, following Hammond's Estate (1900, Pa.), 46 Atl. 935. See also ante § 624. Eminent Domain proceedings by which the property is condemned and to which the executors and trustees are made parties and by which the lands are condemned for railroad pur- poses, are held to release the land from liability to the charge, on payment of the amount awarded. Ohio River R. Co. v. Fisher (1902), 115 Fed. 929. PART IV— INTESTATE SUCCESSION. CHAPTER XXII. DESCENT AND DISTRIBUTION. Statutes of Descent. §773. 4 ^ — a- a #*■ ■■ 5 757. Forecast. Auopieu L-nn- dren. §758. Descent and Distribu- §774. Inheritance by Ancest- tion Explained. ors. §759. Succession is a Privi- §775. Collateral Descent. lege. §776. Husband and Wife. §760. What Law Governs. §777. Escheat. §761. The Legal Policy in Suc- §778. Heirs take Direct from cession. Deceased. §762. Kinds of Family Bela- j !. Statutes of Distribution. tionship. §763. Kinds of Consanguinity. §779. Distributees take §764. The Degrees of Kinship Through Representa- — Collateral. tives. §765. Two Methods of Com- §780. Debts are Always a puting Collateral Kin- First Charge. ship. §781. Legacies are the Next. §766. An Illustration. §782. Disposition of the Resi- §767. Explanation. due. §768. Canons of Descent. §783. Distribution is Usually §769. American Law — Direct Postponed. Descendants. §784. When Interest Vests. §770. — : Posthumous and §785. Debts due from Distrib- Illegitimate Children. utees. §771. Half Blood. §786. Remedy of Distributees. §772. Prete rmitted §787. The Decree of Distribu- Children. tion. 1. STATUTES OF DESCENT.i § 757. Forecast. We have now covered substantially all of the substantive law as to wills. Our subject matter now will be the law of succession according to the act or operation of law, or the law of descent and dis- tribution. §758. Descent and Distribution Explained. Where the owner of property has left no will at his death, or has left property which his will does not dispose of, the i See note on Descent, Its Nature and Law Determining It. Rep. 82, et seq. 12 Am. St. 505 § 759 WILLS. 506 law determines the disposition which shall be made of it. 2 The will of the law is declared by statute, called ordinarily, when referring to real property, statutes of descent, when referring to personal property, statutes of distribution. Eeal property descends; personal property is distributed. §759. Succession is a Privilege. The right to take property by descent or distribution is not an absolute one, but depends entirely upon the statutes. These stat- utes may be changed at any time, and mere expectant rights and interests may thereby be cut off. 3 § 760. What Law Governs. The law in force at the time of the intestate's death is the law that controls. The descent of real property is governed by the law of the place where the land is situated, while personal prop- erty is distributed in accordance with the law of the intestate's domicile at the time of his death. 4 § 761. The Legal Policy in Succession. The law has always made intestate succession to property depend on family relationship. This relationship always has been, and if we can judge from experience always will be, the strongest bond between human beings. The law, which is the consensus of public opinion, has simply recognized this fact, and has made succession depend upon it, as the natural and most politic system. 2 It can readily be seen that there 3 We cannot get that idea too clearly are cases where the will of the law in our minds. We sometimes think would operate exclusively, as where the and speak of the rights of inheritance owner of property had attempted to as natural rights, as though the child make no will at all. Or it may operate had a natural right to the property of partially, as where the owner has left the father. All depends upon the stat- a will to operate on a portion, but not ute. The policy may be changed at the whole, of his estate. In this case any time. Children might he entirely there are two wills — the will of the cut off. The channels of descent might law, and the will of the testator. The be entirely changed. On this question will of the law always supplements the see cases cited in § 8, ante ; and note will of the party. If he has not made 84 Am. St. Rep. 449. On Inheritance a will disposing of all his property, taxes, see note, 41 Am. St. Rep. 580-5, there is a will of law disposing of the 62 Am. St. Rep. 454, 88 Am. St. Rep. rest. If a man makes a will of per- 513-520, 8 Am. St. Rep. 508. sonal property only, the law will make * See ante §§ 399-409 ; and notes one of real property, or vice versa. The 12 Am. St. Rep. 96, 85 Am. St. Rep. will of the law and the will of the 557. party operate side by side. 507 DESCENT AND DISTRD3UTI0N. § 762 § 762. Kinds of Family Relationship. The members of a family are related to each other either by affinity or by blood. Affinity is that tie of relation which exists between husband and wife. 5 There is no strong tie by blood, but there is a stronger tie. "Therefore shall a man leave his father and his mother, and shall cleave to his wife, and they shall be one flesh." This natural af- finity is remotely simulated by the legal affinity under the statutes for the adoption of children. The tie of blood is called consanguinity, which ranges through all degrees, from the immediate relation of parent and child to the remotest cousins having no common blood nearer than the original ancestors of the race. § 763. Kinds of Consanguinity. Consanguinity or kinship is of two kinds— lineal and collateral. Lineal consanguinity is that existing between two persons of whom one is descended in a direct line from the other. Collateral kinship is descent from the same stock, but not in direct line, one from the other. § 764. The Degrees of Kinship 1 — Lineal. Now the next of kin are those who are related by blood to the deceased, and those who are more nearly related exclude those who are more distantly related. It is necessary to ascertain who those more nearly related are. t In estimat- ing the degree of lineal consanguinity, the civil, canon, and common law all follow the same plan: that is, count- ing up or down the line, estimating each generation as one degree. As far as the lineal kin are concerned, those who are in the same line, up or down, there can, in the nature of things, be no dispute. As to these all rules agree. When you get into the matter of computing col- lateral kindred differences arise. § 765. Two Methods of Computing Collateral Kinship. In estimating the collateral consanguinity, the common and canon law began with the common ancestor and is See note on Nature and Degrees of Affinity, 79 Am. St. Rep. 200-5. § 766 WILLS. 508 counted down to the intestate and the claimant respect- ively, and in whatever degree the more distant is removed from the common ancestor is the degree in which they are related. The civil law counted upward from the intestate to the common ancestor and then downward from him to the claimant, reckoning one degree for each step, and the total number of steps indicated the degree of relationship. Most of the states adopt the civil law rule. § 766. An Illustration. Let us take an illustration. Here is the deceased, and the claimants are a cousin and nephew. We have to ascertain which is entitled to the estate. The cousin is the son of an uncle, the nephew is the son of a brother. The relative position of the parties may be seen from the following table: Grandfather >C Father Un«le I I I . Brother DECEASED COUSIN I 'I NEPHEW Son I I Son Grandson §767. Explanation. According to the canon and common law methods, we start with the common ancestor of the deceased and the claimant. The common ancestor of the cousin and the deceased is the grandfather of the latter. We count up two degrees and then down two degrees to the cousin. The degree of kinship is deter- mined by the number of steps on the longest, line. In this case the line from the deceased up to the common grandfather numbers two degrees ; from the grandfather down to the cousin, two degrees. The deceased is related to the claimant then in the second degree. In the case of 509 DESCENT AND DISTRIBUTION. §767 the nephew, we count up one degree to the father, who is the common ancestor, and then one degree to the brother and another to the nephew, making two degrees. The line down is the longest, so the kinship of the nephew and the deceased is of the second degree. According to the civil law we would in the first case count two degrees up to the grandfather and then two degrees down to the cousin and add the two, making the kinship of the fourth degree. In the case of the nephew, we count one degree to the father, two to the brother, and three to the nephew, making the kinship of the third degree. The nephew, then, according to the Civil Law method is one degree nearer to the deceased than the cousin. In the canon and common law method they were removed from the deceased the same number of degrees. 6 e Further Illustration. Take the case of the grandnephew and the cousin. They stand in the same degree of re- lationship. Shall they take equally? Most of the states provide in their statutes that where there are several claimants standing in the same degree of relationship, where one claimant de- scends from an ancestor in a nearer degree of relationship to the deceased than the others, that claimant takes. In Wetter v. Habersham (1878), 60 Ga. 193, the claimants were two fami- lies, the Wetters and the Joneses. The Joneses were the grandchildren of an aunt and the Wetters were the great- grandchildren of a brother. The ques- tion was who were the more nearly related. If we apply the canon or the common law, the Wetters are four de- grees removed, the Joneses three de- grees. By the civil law they are of the same degree. In Georgia the stat- ute has adopted the canon law method. The Joneses will therefore presump- tively exclude the others. But it ap- pears that the brother, from whom the Joneses were descended, had children and grandchildren, and these grand- children, if living, would have been entitled to share, and it was contended that the great-grandchild could step up the line and represent the grand- child. The statute, however, says that there shall be no representation beyond the children and grandchildren of brothers and sisters. The great grand- children could not, therefore, step up the line and represent the grandchild. In some states the statutes say that the descendants of the dece'ased brother or sister shall represent them. In this state the statute provides that it shall go in equal shares to the brothers and sisters and to the chil- dren of brothers and sisters by right of representation. Under a statute like ours there could have been no question. Under the statute permitting the de- scendants to represent brothers and sisters the great grandchildren of the deceased brother could have stepped up into the place of the grandchildren. But the statute in Georgia did not per- mit representation to go beyond the children or grandchildren of a de- ceased brother. The great-grandchil- dren were consequently cut off and the grandchildren of the aunt were held to be entitled to take. In Schenck v. Vail (1873), 24 N. J. Bq. 538, the children of first cousins who had died and the children of third cousins strove to come in and share with the first cousins in the estate of the deceased by right of representa- tion. There were five of these first cousins, all of course of equal degree § 768 WILLS. 510 § 768. Canons of Descent. There were certain rules of common law known as the canons of descent. There were seven chief rules. The peculiar feature was that the descent should always be downward, never upward. An- other peculiarity was that it went down through the male line, to the exclusion of the female, and through the line of the oldest male to the exclusion of any other. 7 § 769. American Law— Direct Descendants. None of these rules prevail at this time in this country. The rules of descent as they prevailed at the common law have been almost entirely abrogated or amended in this coun- try. The children of the deceased, if any, inherit his real estate in equal shares, the descendants of any deceased child taking by right of representation the same share that he would have if living. This method of taking by representation is termed taking per stirpes. §770. Posthumous and Illegitimate Children. Post- humous children of the intestate take as though they had been born in his lifetime. Illegitimate children at the common law could inherit from nobody; but in this coun- try may inherit from their mother, which was the rule of the Eoman law; and in Iowa and a few other states in- herit from both parents. of relationship, and they were entitled nephews could come in. According to to all the estate unless the children of the Michigan statute the grandchildren the deceased cousins could come up the of the deceased brother could not come line by right of representation. The in. Under the Georgia statute they court held that there was no such right would have come in. In the state of in this line. They held that the five Missouri the right of representation first cousins were entitled to take to extended to all descendants and so they the exclusion of all the others. were entitled to come up, no matter In Copenhaver v. Copenhaver how far down the line they stood. The (1880), 9 Mo. App. 200, there were question now was whether the grand- nephews and grandnephews. The nephews should share per stirpes or nephews were children of the brother per capita with the nephews. Apply- of the deceased and the grandnephews ing the statute the court held that the children of the nephew of the de- nephews should take per capita and ceased. As far as the nephews are that the grandchildren should take per concerned, they all stand in the same stirpes. They were entitled to take degree of relationship. But there were what the deceased parent would have several of these nephews and a large taken if living. As to the grand- number of grandchildren representing nephews the estate was divided per the nephews, who had died. The ques- stirpes, tloo was as to whether the grand- T 2 Bl. Com. »*208-240. 511 DESCENT AND DISTRIBUTION. § 771 § 771. Half Blood. Half-brothers and half-sisters in- herit alike as children of their common parent. There are half-brothers and half-sisters, all children of the same father; they all take alike, because they are all his heirs. But if they have different mothers and the question is of inheritance through the mother, only those who are chil- dren of the mother take. §772. Pretermitted Children. Living children not provided for in the will usually inherit where their omis- sion was unintentional. Children born after the making of the will, and those born after the testator's death, if not provided for in the will, usually take as heirs. The word "child" or "children" as used in the statutes does not include grandchildren, unless the statute shows that the words were intended to include all descendants. § 773. Adopted Children take as heirs of their natural parents and also as heirs of their adopting parents where that is the effect of the adopting statutes. But their adopting parents cannot take as their heirs. 8 The effect of the adoption must be such as the law allows. These statutes provide ordinarily that the adopted child shall take the name of his adopting parent and shall become an heir at law. He may inherit from his natural parent by the general law. The natural parent may inherit from him, but not the adopting parent. § 774. Inheritance by Ancestors. It was the rule at common law that an estate could not lineally ascend, but this rule is abrogated in nearly all of the states. The statutes provide for inheritance by father or mother or both. The .statutes differ. The proportions the parents take differ under the same statutes, depending on whether the deceased left husband, wife, brothers or sisters. Brothers and sisters and their descendants are sometimes given priority over parents as heirs. § 775. Collateral Descent. Having considered the law 8 See note, 39 Am. St. Rep. 210-231 ; 12 Am. St. Rep. 100. § 776 WILLS. 512 of lineal descent we come now to the cases in which there is no living descendant or ancestor. The statutes pro- vide for inheritance by next of kin in such cases. Hus- band and wife are not "next of kin" to each other under the statutes which do not expressly so provide. The term "next of kin" means those most nearly related by blood, and those most nearly related exclude those more remotely related. Where descendants take by represen- tation they take per stirpes. If an estate goes up through the father and down through brothers and sisters, and one of the brothers or sisters is dead, the children of that brother or sister take per stirpes. So far as the right of representation is concerned, it is confined to sisters and brothers and their descendants of some degree. In very many of the states, in this inheritance by brothers and sisters, the statutes make discrimination between broth- ers and sisters of half and whole blood. In some they do not. 9 The common discrimination is that where the prop- erty is ancestral, where it is property that the father got, not by himself, but through inheritance from some an- cestor, only those brothers and sisters who are of the same blood as the ancestor from whom the father ac- quired the property can take. §776. Husband and Wife. The surviving husband or wife was not an heir of the other at common law ; but they are made heirs of each other by statute in most states— taking in the absence of children under some statutes, with the children under other statutes. 10 § 777. Escheat. At common law an alien could not take real property by descent, but this rule has been BMcNeal v. Sherwood (1902), — E. states, as in Illinois and Indiana, the I. — , 53 Atl. 43. See also note, 1 Pro. surviving husband or wife has the R. A. 545-6. right to come in with the children. 10 It is impossible to get very defi- The statute may give the surviving nitely Into that field because there are husband or wife a right which they no two statutes alike. But everywhere did not have in the common law. I in this country the children collective- think in every statute in the United ly are given the right to inherit. In States you would find some place many Btates they take to the exclusion where they would come in. of father or mother. But in some 513 DESCENT AND DISTRIBUTION. § 778 changed by statute in many states. Where there is no one who under the law is entitled to take, the estate escheats to the state. § 778. Heirs Take Direct from Deceased. Upon the death of the intestate his real estate is deemed to vest at once in his heirs by operation of law, without order or decree of court, though it may be subject to contribute for the payment of debts. There' is quite a difference be- tween the disposition of real estate and personal prop- erty. Upon the death of the intestate there is ordinarily no interregnum whatever as regards the real estate. It may be that the title will be divested for the payment of debts, but ordinarily the law absolutely and instantly devolves the title upon the heir at law. But in regard to the personal property you will find it vests in the ad- ministrator until it is distribute'd. 2. STATUTES OF DISTRIBUTION. § 779. Distributees Take Through Representative. Unlike real estate, the personal estate does not at once descend to the heirs, but the title is deemed to vest in trust in the personal representative. Until the representa- tive has qualified the title remains in abeyance, but upon his qualification his title for many purposes relates back to the time of the death of the deceased. § 780. The Debts are Always a First Charge upon the personal estate, whether the party died testate or intes- tate, unless he has appropriated some other property by will for the payment of debts. The personal estate con- stitutes the first fund for the payment of debts. That is always true in the case of the intestate and ordinarily so in that of the testate. § 781. Legacies Are the Next claim upon tha personal property. Now if all the legacies are paid and there is still something left over, that is disposed of according to the residuary clause of the will; but if there is no pro- vision in the will it is disposed of by distribution. If 33 § 782 WILLS. 514 there is not any will, then the personal estate, after the payment of all debts, is distributed. There are few difficult questions of construction in the statutes of distribution. The rules to determine the next of kin are the same as the rules under the statutes of descent. § 782. Disposition of the Residue. After paying the debts and legacies the residue is distributed. If there is a will with a general residuary clause, the residuary clause will control the disposition; if there be no will, or a will with no residuary clause, then the residue of the personalty is to be distributed according to the statutes of distribution. The statutes of distribution and descent are often similar, but not always. The same persons do not always take by distribution that take by descent. In many of the states there is no difference but in others there is a full and formal scheme of distribution marked out in the statute. There are many schemes nowadays to tax the right to take by descent the property of a deceased relation. Not very often has there been the attempt to tax the right to take by descent of the immediate ancestors. The tax has been confined to collateral inheritance. §783. Distribution is Usually Postponed until the final settlement of the estate, but in many states pro- vision is made for an earlier distribution in whole or in part, refunding bonds being given to provide for a return of the property or its value if the exigencies of the estate demand it. 11 §784. When Interest Vests. The right of the dis- tributee to his share is vested at the time of the death 11 Why Postponed. Why is it that ministrator must keep the property in distribution must be postponed until his possession for the payment of the estate is settled? Here are the debts. But where there is a large es- debts that constitute the first charge tate and it is reasonably certain that upon the estate. Until you know abso- there will be sufficient for the payment Iutely the amount of the debts there of all debts the administrator is al- can be no distribution with safety. It lowed to give away a portion of the may take one, two, or three years to estate, but under bond, so that it can close the estate absolutely. The ad- be recovered, if necessary. 515 DESCENT AND DISTBIBUTION. §785 of the intestate, though his right to possession and the amount of his share are not fixed until the decree of dis- tribution. If the distributee dies before distribution his share will pass to his personal representatives. He may also assign or otherwise dispose of his interest pending distribution, in which case his share will be paid to his assignee. 12 § 785. Debts Due from the Distributee to the deceased will be deducted from his share, and so will advance- ments made to him by the deceased in his lifetime. 13 § 786. Remedies of Distributee. The distributee may maintain an action against the personal representative to recover his distributive share after the decree of dis- tribution uncomplied with, and in many states a sum- mary remedy is given by statute for such cases. § 787. The Decree of Distribution. In most cases a decree or order of distribution is made by the court deter- mining the persons entitled to share and their respective proportions, but the personal representative sometimes takes the risk of distributing without' such decree. When the estate is ready for distribution the common practice for the officer to pursue is to lay before the court the amount to be distributed and to ask the court who are the parties entitled to share and what the share shall be. If he sees fit to take the risk of distributing, or if everybody is satisfied, the decree of court may be dis- pensed with. Of course where the heirs are great in num- ber or the estate is complicated it is necessary that the persons should first be determined and then their re- spective shares. In many cases the persons who are en- titled to share are uncertain. "Where there is this uncer- tainty the decree of the court has the effect of protecting the officer. 12 Davis v. Newton (1843), 6 Mete. is Batton v. Allen (1845), 5 N. J. (47 Mass.) 537; Stevens v. Palmer Bq. 99, 43 Am. Dec. 630. (1860), 15 Gray (81 Mass.) 505. PART V— ADMINISTRATION OF ESTATES. CHAPTER XXTTT. JURISDICTION OF COUET AND APPOINTMENT OF OFFICERS. 1 Preliminary Questions — Jurisdic- tion, and Nature of Proceed- ings. $788. 5 789. Forecast. Necessity of Having Ju- dicial Administration. { 790. Advantages of Having Administration. | 791. Whether Testate or In- testate. $792. Proof of Death. 5 793. ■ Jurisdiction as to Terri- tory. § 793a. Ancillary Administra- tion. 5 794. Which Court of the Place. f 795. Credit Due the Court's Record. { 796. Method of Proceeding. 1 797. The Common and the Solemn Form. 5 798. Limit of Time for Tak- ing. Official Titles of Several Adminis- trative Officers. | 799. Ordinary Officers — Ex- ecutors and Adminis- trators. ( 800. Administrator cum Tes- tamento Annexe { 801. Administrator de Bonis Non. {803. {804. {806. {807. { 802. Administrator During Minority. Administrator Pendente Lite. Public Administrators. Who are Competent to Act. { 805. Infants and Married Women. Corporations Aggregate. Executor Only when Nominated. Who are Entitled to Preference. {808. Statutory and Judicial Regulation. { 809. Contracts to Renounce. { 810. On Death of Executor. Qualification for the Office. { 811. Consists of What. { 812. Where and of Whom Bonds are Required. { 813. The Form of the Bond. {814. The Oath. Appointment, Removal, and Evi- dence of Authority. Issuing Letters. Letters Testamentary, &c, as Evidence. Cancelling Letters and Removing Officer. Resignation of Officer. Difference between Ex- ecutor and Administra- tor. 5 815. {816. 5 817. 5 818. 5 819. 1. PRELIMINARY QUESTIONS— JURISDICTION, AND NATURE OF PROCEEDINGS. § 788. Forecast. We have now disposed of the whole matter of the substantive law of succession. There is now a large branch of law which has to do with the 1 See note, 81 Am. St. Rep. 536-561. 516 517 JUBISDICTION OF COUBT. §789 machinery, the means, the remedies by which the rights created are to be enforced. I call it the adjective law of succession or the Law of Administration. It will be evident from what we have already seen that neither the will of the owner nor the will of the law can be entirely self -executed. Some one must take hold of the matter and see that the rights declared by the will are carried into effect. The statute declares who the dis- tributees are and their rights. But that is clearly not sufficient; there must clearly be some machinery by which the rights declared can be given effect. § 789. Necessity of Having Judicial Administration. Estates sometimes may be and are settled without final administration, but this course is usually hazardous, if not impossible. It can only be done where the claims of all parties, including creditors, can be settled by amicable arrangement, and even then it leaves a cloud upon the title of the estate. In many cases it is indis- pensable that there should be at least some administra- tion. In others it is not indispensable that there should be any administration. In all cases administration is desirable, if not necessary. If a party dies testate, and anything is going to be done with the will, it is neces- sary at least to go so far as to get it probated. There it may stop. The persons interested may then take the estate into their own hands, and if everybody is satis- fied it may stop there. The state has no interest in the matter. The difficulty is in satisfying everybody. The same holds true in the intestate estate. The debts of the deceased constitute a first charge upon the estate. Still the debts are not a formal lien upon either the personal or real estate, although they are in effect a quasi-lien upon both the personal and real estate. Any creditor, if he comes in before his claim is barred by the statute of lim- itations may enforce his claim regardless of the will. § 790. Advantages of Having Administration. It is always possible that there are outstanding debts that con- § 791 ADMINISTRATION OF ESTATES. 518 stitute a lien upon the real estate. Anybody who is buy- ing real estate of the heirs takes it subject to that risk, that there is a creditor who has a first right upon the estate. In almost every case it is practically desirable that there shall be administration. Suppose the heirs do get together and settle the estate without administration and pay the debts themselves. How can they tell who the debtors are? How can they tell, in many cases, that every creditor has been paid? There may be claims in other states, in other countries. The practical difficulty in the way of settling without administration is the un- certainty which is inherent in the very nature of the case. The practical difficulty makes it highly desirable to have administration. § 791. Whether Testate or Intestate. Upon the death of the owner of property, the first matter for considera- tion is whether he died testate or intestate; the second is to bring the estate under the control of the court hav- ing jurisdiction. § 792. Proof of Death. The first thing to be done on application for administration is to prove the death of the person whose estate is to be administered. But such proof and finding of the fact by the court will not make the proceedings valid if such person is actually alive. The court has no jurisdiction to administer on the estate of a living person, and the proceedings are absolutely void. 2 §793. Jurisdiction as to Territory. In what court is the administration to be sought? The first question to be decided is in what territorial jurisdiction the mat- ter comes, and then to what court in that jurisdiction the matter is to be referred. The territorial jurisdiction is the county or district within which the deceased was domiciled at the time of his death. The court in which the proceedings must originally be had is the court of probate jurisdiction in that territory. There are other a Scott v McNeal (1894), 154 V. S. 34, 14 S. Ct. 1108, Mechem 126. 519 JTJBISDICTION OF COURT. § 793 courts in which actions may be brought in the settlement of the estate, but this is the court of original jurisdic- tion. There may be subsequent jurisdiction in many other states and courts. § 793a. Ancillary Administration. Grants of admin- istration have no extra-territorial effect, and in case the deceased had property in another state at the time of his death, administration must usually be taken out in that state also. Administration at the place of domicile is termed the principal administration, that in others is termed the ancillary administration. 3 An heir of the man who died in Michigan owning prop- erty in Ohio may apply for administration in Ohio, but this administration will only be ancillary, even though it be previous to the granting of administration in Michi- gan. The administration at the place of the domicile, re- gardless of the order of taking, is still the principal ad- ministration. The administration in the state must be taken in the county of domicile. The adminstrator appointed by that court has power over all the counties of the state in which the deceased may own property. So far as ancil- lary administration is concerned in a county in another state the one first in order excludes all the others. Ancil- lary administration may be had in any county in which the deceased left property, but only one grant can be had in the same state, and if there is property in several counties the court which first acts will be given control for the state. 4 3 Suppose a man dies having prop- trators for other states. The moment erty in several states, as is very com- the administrator crosses the state mon. In one state he has his domicile, line, he loses all his administrative and the probate court of the county or capacity. There must be a new ad- district in which he lived is the court ministration taken out for each new having primary jurisdiction over his state. True, if the deceased died tes- entlre estate, wherever it may be situ- tate, after you have gotten his will ated. If he was domiciled in Michigan admitted to probate in the state of his and had property in Ohio, any grant domicile you may by virtue of the of administration which the courts in statute of the state and as a matter Michigan may make can have no effect of comity take the will to another in Ohio or in other states. The court state, of Michigan cannot appoint adminls- i Welch v. Adams (1890), 152 Mass. § 794 ADMINISTRATION OF ESTATES. 520 § 794. Which Court of the Place. The settlement of the estate of deceased persons is in every state confided to courts having a jurisdiction established for that pur- pose. This jurisdiction is sometimes attached to courts of ordinary jurisdiction, but in most states there are separate courts whose jurisdiction is confined to the es- tates of deceased persons, infants, and insane persons. As a rule, it is a county court. It is usually called the probate court, but sometimes the surrogate's court, or the orphans' court, or the county court. 6 § 795. Credit Due the Court's Record. These courts are now usually courts of record, and are deemed to be courts of general or superior jurisdiction rather than inferior ones. The validity of their proceedings, there- fore, is usually to be tested only on direct appeal, and cannot be attacked collaterally. The whole difficulty is to discover whether the court has general or specific jurisdiction. Suppose you bring into Michigan, for ex- ample, a decree or order from a probate court in some other state. If the court that granted it be a court of general jurisdiction, it is the presumption that that order was granted by the court within its jurisdiction and that all the proceedings were regular. If, on the other hand, it be a court of special jurisdiction, that presumption does not prevail, and the record can be attacked every- where, either collaterally or directly. The tendency is to make the probate courts general courts in a limited field. In some states the probate court is regarded as standing on the same footing as a court of justice or court of ap- peals or any other court having a special jurisdiction. 6 74, 25 N. B. 34, Mechem 164 ; Schluter states where the population is sparse, v. Bowery Sav. Bank (1889), 117 N. the jurisdiction would be attached to T. 125, 22 N. E. 572, 15 Am. St. Rep. the county court. In others there is a 494, Mechem 134 ; Vaughn v. Barrett special court In New York they have (1833), 5 Vt. 333, Mechem 139. what is called the Surrogate's Court; o The policies of the states differ in Pennsylvania, the Orphans' Court widely in that regard. In every state e Price v. Springfield Real B. Assn. there is a court having specially estab- (1890), 101 Mo. 107; Apel v. Kelsey lished jurisdiction for the settlement of (1889), 52 Ark. 341. the estates of deceased persons. In 521 JURISDICTION OF COURT. § 796 §796. Method of Proceeding. The proceedings in these various courts are exceedingly informal. Usually the estate is deemed to be a res in the possession of the court, and the proceedings do not admit of the antago- nistic issues of ordinary cases. In many of the states the court is set in motion by petition. The petition sets forth that the party is dead, that he was domiciled in the coun- ty at the time of his death, or left property therein, that he died testate or intestate, as the case may be, show- ing the general nature and amount of his property, and the name, residence and relationship of the heirs or next of kin. If the deceased died intestate, the petition prays that an administrator be appointed. If he died testate, the will must be produced and filed, and the prayer will be that it be allowed and admitted to probate, and that its execution be committed to the executor therein named. The petition can only be made by someone interested in the estate, either as heir, legatee, creditor, or otherwise. It is usually to be verified by the oath of the petitioner. Upon the filing of the petition, an order is made fixing a day for the hearing of the matter, and notice is to be given to all parties in interest, either personally or by publication. Upon the day fixed for hearing, any party interested may appear and contest the granting of the petition. The proceedings are usually informal, without formal pleadings or issues. In several states there is much less formality about it. In these states administration may be granted ex parte, and if anybody desires to contest the grant he may do so by subsequent proceedings. § 797. The Common and the Solemn Forms. There are two forms of probate, the common form and the sol- emn. In the first case the party interested goes with the will to the office of the clerk, taking one witness, and has the will admitted by entirely ex parte proceedings. If there is objection the court can set aside the proceed- § 798 ADMINISTRATION OF ESTATES. 522 ing. In other states there is probate in the solemn form. The will is accompanied by a petition praying that the will be admitted to probate. The court issues an order fixing a day for the hearing. On that day parties inter- ested may appear and the persons that brought the will offer their proofs. If any one desires to contest the will he may then do so, and then only. The matter is finally disposed of at the hearing. In the common form there is originally no notice and no hearing. In most of the states probate in the common form is allowed. In California, Delaware, Florida, Georgia, Maryland, Mississippi, Ne- vada, Nebraska, New Jersey, and South Carolina, pro- bate may be had in common form and may be contested within a limited time in the probate court. In Alabama, Colorado, Illinois, Indiana, Kansas, Ken- tucky, Missouri, New York, North Carolina, Ohio, Penn- sylvania, Tennessee, Texas, Virginia, and "West Virginia, a will may be proved ex parte and afterwards contested in chancery or by suit at law. In Arkansas, Iowa, Maine, Massachusetts, Michigan, Minnesota, Oregon, Ehode Island, Vermont, and "Wiscon- sin, there is probate only in the solemn form. § 798. Limit of Time for Taking. The time within which letters of administration may be issued is lim- ited, but a will may be probated at any time, even sixty years after the death of the testator, if the necessary evi- dence to prove it can then be obtained. But the will is not competent evidence to establish any right under it till it has been probated. 7 2. OFFICIAL TITLES OF SEVERAL ADMINISTRATIVE OFFICERS. § 799. Ordinary Officers— Executors and Administra- tors. The active management of the estate is entrusted to an officer of the law called, when nominated by the will, an executor, and when appointed by the court, an admin- T Haddock v. Boston & M. Ry. Co. (1888), 146 Mass. 155, 15 N. E. 495, Mechem 132. 523 JTJEISDICTION OF COUET. § 800 istrator. The distinction between these two terms is this: The executor is always, directly or indirectly, nom- inated as such in the will. The administrator is the officer appointed by the court, whose nomination is not expressed or implied in the will. § 800. Administrator Cum Testamento Annexo. If the will names no executor, or if no one who is named will act, the court appoints an administrator called an admin- istrator with the will annexed, or, more frequently, ad- ministrator cum testamento annexo. § 801. Administrator De Bonis Non. Upon the death, resignation or removal of a single executor or adminis- trator, or of all if there be more than one, an adminis- trator is appointed to complete the administration, who is called the administrator de bonis non. § 802. Administrator During Minority. When the person named as executor, or the person who under the statute is entitled to administer, is a minor, an adminis- trator during minority may be appointed. This is not a very common office. Some states permit the executor to fulfil the functions of the office before he is of full age. § 803. Administrator Pendente Lite. While proceed- ings for the appointment of the regular executor or ad- ministrator are pending, or during delays by appeal or otherwise, a temporary officer may be appointed, usually ex parte or on brief notice. He is called a special admin- istrator, or administrator pendente lite (during the pend- ing of the suit). In every state some means are provided for the appointment of a temporary officer pending suits or delays. He is called, by reason of the pending litiga- tion, the administrator pendente lite. In this state he is called the special administrator. In this state a court may appoint an administrator for the short interval be- tween the death of the testator and the probating of the will. In large cities where there are trust companies that rent safety deposit boxes the courts frequently do § 804 ADMINISTRATION OF ESTATES. 524 this. A man keeps his will in his box in the trust com- pany's safe. The company will not permit the removal of the instrument by any one but the owner of the box, and so, in order to get possession of the will, the court appoints this special administrator to get the will and give security for its return. § 804. Public Administrator. In some states there is a permanent officer, called the public administrator, or the administrator general. He acts where the deceased was a stranger or where there is no relative who can or will act. In New York, for example, there are standing officers, elected just as regularly as the sheriff or clerk, who are called the administrators general, and whose function it is to act in the case of the death of a stranger, or where there is no relative who can or will act. Such an office would be especially necessary in large cities like New York, where people are constantly dying away from home and among absolute strangers. 3. WHO ARE COMPETENT TO ACT. § 805. Infants and Married Women. An infant usu- ally cannot act as an executor or administrator. An un- married woman is competent, but at common law if she married, her husband became the officer. In many of the states by statute her marriage terminates her authority; in a few she may act with her husband's consent; in others she may proceed without his consent. In most of the states where there has been any legislation on the sub- ject the rule has been that if the unmarried woman who is appointed administrator or executor marries, her au- thority terminates. That is the prevailing rule. There are three or four states where she may go on without her husband's consent and others where she must have his consent. In some states the common law rule still pre- vails. A married woman might act, at the common law, with her husband's consent, and if she were not willing to act he might act in her stead. In most of the states the common law rule seems to prevail. 525 JURISDICTION OF COUBT. § 806 § 806. Corporations Aggregate are not competent at common law, but by statute in many of the states may be organized expressly for the. purpose of assuming such trusts. § 807. Executor Only When Nominated. No one can be executor who is not directly or indirectly nominated as such in the will. It is not essential that the person should be called the executor or that he should be nominated in precise or express language in the will; but in order to be executor he must in some way be indicated in the will for the trust. A case in New York held that there could be a good appointment of executor where the will author- izes some one to name an executor. None of the other cases of which I am aware have gone as far as that. 4. WHO IS ENTITLED TO PEEFEEENCE. §808. Statutory and Judicial Regulation. The per- son entitled to be administrator is usually pointed out by statute, preference being given ordinarily to the surviv- ing husband or wife, then to the next of kin, and then to the creditors. 8 If there are several persons in the same degree of relationship the court appoints one of them, preferring a single to a double administration. § 809. Contracts to Renounce the right to be chosen administrator are held void as opposed to public policy. §810. On Death of Executor. At common law if a sole executor died testate his executor succeeded to the trust under the first will ; but this rule is generally abro- gated by statute in the United States. 9 If A died testate, making B his executor, and B died before the adminis- tration making C his executor, C was then executor for both A and B at common law. 8 Bee note on Right of Husband to » Robbing v. Burridge (1901), 128 Administer Wife's Estate, 12 Am. St Mich. 25, 87 N. W. 93, 7 Pro. B. A. Bep. 82. »«• § 811 ADMINISTBATION OF ESTATES. 526 5. QUALIFICATION FOE THE OFFICE. § 811. Consists of What. When the person who is en- titled to administration of the estate has been determined and he is ready to accept the trust, he must qualify for the office. This qualification consists ordinarily in taking the oath and' giving the bond required by the statute. He must qualify by taking oath and giving the bond re- quired by the statute before entering upon his office. §812. Where and of Whom Bond is Required. 10 Every administrator must give a bond. There is no state in the Union where there can be administration without bond. In a few states it seems that a bond is not required of the executor. These states are Florida, Georgia, Louisiana, New York, North Carolina, Penn- sylvania, South Carolina. In many states the executor must give a bond unless the testator in his will has directed otherwise. These states are Alabama, Califor- nia, Colorado, Illinois, Kansas, Kentucky, Maine, Mississippi, Missouri, Nevada, Ohio, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, West Vir- ginia, Wisconsin. In a few of these states the court may exercise some discretion in this matter. The testator may have named a man who, at the time the will was made, was financially responsible and fitted for the duty, but who, when the time comes for administration, is no longer capable of discharging the functions of the office". The court may then exercise its discretion. In a few states the necessity for a bond cannot be avoided by the testator. This is the rule in Arkansas, Delaware, Iowa, Indiana, Maryland and Michigan. §813. The Form of the Bond is usually prescribed by the statute, but in substance is conditioned for the faithful discharge of the duties of the office. The amount 10 See notes on Liability of Bond- N. E. 306, Mechem 180 ; McKim v. men in such cases: 45 Am. St. Rep. Aulbach (1881), 130 Mass. 481, Me- 670, 70 Am. St. Rep. 444 ; also Nanz chem 183. T. Oakley (1890), 120 N. Y. 84, 24 527 JURISDICTION OF COURT. § 814 of the bond is usually left to be determined by the pro- bate court, and is fixed ordinarily at double the value of the personal property. Sureties are required in such number as the statute specifies. In determining the suf- ficiency of the form and execution of the bond, courts give it a liberal construction in favor of those entitled to its protection, and will not allow it to fail for merely for- mal defects. You will find in every state some provision for a bond. The statutes usually specify what the penalty of the bond shall be and its terms. In many states, in fixing the amount of the bond, it is customary to fix the penalty at double the value of the personal property. The bond is condition for the faithful administration of the estate according to the will. In respect to testate estates the statutes differ. In Florida, Georgia, Louis- iana, New York, North Carolina, Pennsylvania and South Carolina the giving of a bond by the executor is not indispensable. In Alabama, California, Colorado, Connecticut, Illinois, Kansas, Kentucky, Maine, Missis- sippi, Missouri, Nevada, Ohio, Oregon, Ehode Island, Tennessee, Texas, Vermont, Virginia, West Virginia and Wisconsin a bond is required unless the testator waives the bond by his will. The statute of Ohio may be taken as fairly representing the statutes of the states in the last group. The Ohio statute requires that a bond shall be given, and specifies wha'f the security shall be, etc., and then in the last clause it is left to the discretion of the probate judge to require or not to require a bond, if the testator has waived it in his will. In Michigan there is no exception; a bond must be given; and this is the case either as to a testate or intestate estate. Every- where, so far as adminstration of intestate estates is con- cerned a bond is indispensable. § 814. The Oath is provided for by statute, and usually no certain form of words is necessary. The language is in substance that "the officer will faithfully discharge the duties of the office." § 815 ADMINISTRATION OF ESTATES. 528 6. APPOINTMENT, REMOVAL, AND EVIDENCE OF AUTHORITY. § 815. Issuing Letters. Upon the due qualification of the officer, letters of administration are granted him if he be an administrator and letters testamentary if he be an executor. § 816. Letters Testamentary, Etc., as Evidence. Such letters granted by a court having jurisdiction are, while unrevoked, conclusive evidence of the authority of the grantee, and cannot be collaterally impeached. They can only be revoked or set aside by direct proceedings for that purpose or upon appeal. It becomes necessary some- times for the administrator to bring suit in regard to some portion of the property under his control ; and if he sues as administrator his right as administrator cannot be attacked in any way except by appeal or by some direct proceedings brought for that purpose. On the other hand, letters granted by a court without jurisdic- tion are void and confer no authority upon any one. While letters of administration issued by a competent court are conclusive evidence of authority, they are not the only evidence of such authority. The record of the appointment itself may be produced. Wherever in any case it becomes necessary to prove that a person is dead you cannot do it by producing evidence that his estate has been administered upon. § 817. Cancelling Letters and Removing Officer. Let- ters granted without authority may be recalled by the court. This kind of a case has come up sometimes: Let- ters of administration have been graiited and afterwards a will is found making a disposition of the property and naming an executor. In such a case the letters of admin- istration can be recalled by the probate court. But ad- ministration granted and executed, as in case of intes- tacy, is not made void by subsequent discovery and proof of a will. 11 By statute in most of the states the court li Schluter v. Bowery Sav. Bank (1889), 117 N. T. 125, 22 N. B. 672, Mechem 134. 529 JURISDICTION OP COUBT. §818 is authorized to remove an executor or administrator for causes specified in the statute. For example, that if the officer is guilty of misprisions in his office he may be removed. 12 § 818. Resignation of Officer. Usually by statute the the executor or administrator may resign his office upon rendering an account, though at common law he could not resign. §819. Difference Between Executors and Adminis- trators. It was the common law rule that the executor derived his authority from the will itself; and his title, therefore, vested at the time of the testator's death. The administrator derived his title from the grant of admin- istration. The executor took title at once and could act, but the administrator could not take title or act until the letters of administration were granted. These were the two distinctions at common law. In most of the states the common law rule as to the executors is repudiated, and the executor, like the administrator, derives his title and power from the law. 13 12 Bell's Estate (1901), 135 Cal. 194, Executor Before Probate: 4 Pro. R 67 Pac. 123, 7 Pro. B. A. 310. A. 634-8, 78 Am. St. Bep. 172. it Bee note on Powers and Bights of 84 CHAPTER XXIV. ADMINISTERING AND SETTLING THE ESTATE. 1. Acts Done before Appointment. 4. §820. Retroactive Effect of Appointment. § 821. Rights and Liabilities of One Acting Without Authority. 2. The Officer's Right and Title to _ Property of Deceased. A. Real Estate. § 822. Right of Possession and Control. § 823. Whether Power to Sell Land. § 824. Probate Control of Ex- ercise of Testamentary Power. § 825. Power of One to Exe- cute Joint Power. § 826. Death of Donee of Power. § 827. Equitable Conversion. § 828. Chattels Real. § 829. Recapitulation. B. Personal Property. § 830. Chattels in Possession. § 831. Glioses in Action in General. § 832. Personal Damage for Breach of Contract. § 833. Pending Actions. Collection and Possession of As- § 834. Wrongs Causing Death. e. § 835. Rights of Action Con- cerning Land. § 836. Property Conveyed to Defraud Creditors. § 837. Debts Due from Execu- tor. § 838. Property out of Juris- diction. 8 839. How Situs of Assets is Determined. § 840. The Income, Increase, and Profits. 3. Inventory and Appraisement. 7 § 841. Duty to Make Inven- tory. 8 842. What to Include. 8 843. A Failure to Return. 8 844. Appraisement. 8 845. Conclusiveness. 530 Right of Possession. Liability for Failure to Collect. §848. In What Capacity he 8 846 §847. Powers and Duties in the Manage- ment of the Estate. § 849. Forecast. § 850. Degree of Care Re- quired. 8 851. Liability for Making Personal Use of Assets. 8 852. Making Investments. § 853. Continuing Business of Deceased. § 854. Performing Deceased's Contracts. § 855. Power to Sell Person- alty. § 856. Giving Mortgages to get Funds. § 857. Rights of Purchaser from Officer. §858. Liability on Officer's Contracts. §859. Liability for Torts. §860. Requisites to Sale of Land. §861. Counsel to the Pur- chaser. Of the Liability of the Representa- tive. A. Liability for the Acts of the Deceased. §862. On the Contracts of the Deceased. § 863. For Torts of Deceased. § 864. When Deceased was Li- able with Others. B. Liability for His Own Acts. § 865. For Devastavits. § 866. On Contracts. §867. In What Capacity Sued. As to the Paying of Debts and Legacies. § 868. Priority of Debts. § 869. Presentation and Allow- ance of Claims. § 870. Officer's Duty to Make Defense. 531 ADMINISTERING AND SETTLING ESTATE. 820 §871. Allowance of Contin- gent and Unmatured Claims. 8 872. Necessity of Getting Claims Allowed. §873. Duty of Officer to Pre- sent Statement. 1874. Application for Order to Sell. 8 875. Order of Distribution. 8 876. Paying Legacies before Debts. 8 877. Bight of Legatees to Payment and Posses- sion. 8 878. Order of Appropriation of Assets. Co-executors and Administrators. 8 879. Powers of Each. §880. Liability of Each. 8 881. Joining in Actions. 8 882. Actions Against Each Other. 8 883. A Principal and an An- cillary Representative. Foreign Representatives. 8 884. Actions By and Against. 8 885. Bights of Assignee of Foreign Administra- tor. { 886. Protection of Payment to Foreign Adminis- trator. 8 887. Appointment of Ancil- lary Administrator. i 888. Preference to Local Creditor. 10. Administrator with the Will An- nexed. 8 889. Powers and Duties. 11. Administrator de Bonis Fon. 8 890. Powers and Duties. 8 891. How far Bound by Acts of Predecessor. 12. Accounting and Discharge of the Officer. 8 892. Duty to Keep and Ben- der Accounts. 8 893. Charged with What. 8 894. Credited with What. 8 895. Order of Allowance and Final Discharge. 1. ACTS DONE BEFORE APPOINTMENT. § 820. Retroactive Effect of Appointment. In either case, for the protection of property and the enforcement of rights, the appointment of the executor or adminis- trator relates back to the time of the death x)f the de- ceased. Before the grant of letters the person nominated as executor or the person entitled to administration has no authority further than is necessary to preserve and protect the estate until the appointment can be made. But if letters are subsequently granted to him acts done before, which would have been lawful if he had been duly appointed, will be deemed to be ratified. 2 § 821. Rights and Liability of One Acting Without Authority. A person who, without authority, intermed- dles with the estate and assumes to act as executor or administrator, is termed an executor de son tort— an executor of his own wrong. An act evincing a legal iSee notes 78 Am. St. Bep. 172-204, 2 Hatch v. Proctor (1869), 102 Mass. 62 Am. St. Bep. 118-135, 12 Am. St 351, Mechem 137, Abbott 421, Beeves Rep. 312-316, 45 Am. St Bep. 669. 145. § 822 ADMINISTRATION OF ESTATES. 532 control over the goods would, if unexplained, make the person liable as such executor. The executor de son tort has all of the liabilities, but none of the privileges, of the lawful officer, though he is ordinarily allowed credit for those acts which the lawful officer would have been obliged to perform, and if he subsequently receives the appointment such of his acts as would have been lawful if he had been a lawful officer are deemed to be rati- fied. 3 In several states the statutes have materially changed the law as to executors de son tort. 4 2. OFFICER'S BIGHT AND TITLE TO THE PROPERTY OF THE DECEASED. A. Real Estate. §822. Right of Possession and Control. The first duty of the officer after his appointment is to gather to- gether and take into his possession the property of the deceased which passes to the personal representative. Such property is termed the assets of the estate. The personal estate is always assets. The real estate of the deceased passes usually to the heir or devisee upon the death of the deceased, and the personal representative has no interest in it. In some states by statute the repre- sentative is entitled to the possession and the income of the real estate during the period of administration. 5 Except in such cases he is not bound or entitled to take possession or to care for the real estate, until it becomes necessary for the purpose of selling it to pay debts and legacies. 6 If the personal estate is insufficient to pay the debts the real estate is assets by statute in all of the states. 7 The statutes always make it conditional, contin- gent, or remote assets at least, when the occasion for it arrives. 8 Bead's Case (1604), 5 Coke 33b, lng real estate in inventory, 4 Pro. E. Mechem 136. A. 406. 4 See Rozelle v. Harmon (1891), 103 e See note 3 Am. St. Rep. 204. Mo. 339, 15 S. W. 432, Mechem 138. T See note on Laches In Applying for E See note on representative inclad- Order of Sale which will defeat it, 26 Km. St. Rep. 22-28. 533 ADMINISTERING AND SETTLING ESTATE. § 823 § 823. Whether Power to Sell Laud. The representa- tive has no power, as such, to sell any real estate. He has no power except as conferred by the testator or by the statute. 8 The testator may by his will confer upon the personal representative the power to sell, mortgage or otherwise deal with the real estate; and powers so conferred are in addition to the powers conferred by law. 9 The testator may in his will insert a clause by which the executor may sell the real estate whenever it is necessary for the settlement of the estate. 10 §824. Probate Control of Exercise of Testamentary Powers. Testamentary powers are ordinarily independ- ent of the probate court, except that they shall not be taken to defeat the rights of creditors. Perhaps it is a very desirable thing to give in the will the right to the executor to sell the real estate ; for it obviates the neces- sity of going to the probate court for such power. Sales under such powers ordinarily require no license from the probate court. But in other cases the representative has no power to sell, even for the payment of debts, without the license of the probate court. § 825. Power of One to Execute Joint Power. Where such a power is conferred upon several all must unite in its execution, and if one dies or refuses the power fails. This rule is changed by statute in many of the states. In the absence of statute, if the will names two or three ex- ecutors, they must all unite in the execution of their power. 11 In a few cases a will has been overthrown where a number of executors have been appointed and only one of them would qualify. § 826. Death of Donee of Power. Discretionary pow- ers conferred upon the executor are usually deemed to be 8 See note 79 Am. St. Rep. 83-92, on 10 See notes on testamentary powers Statutory powers of sale and acts an- of sale given to executors, 4 Pro. R. A. der them. 395, 80 Am. St. Rep. 97-123. g Whether Power to Bell is Power to n See note 80 Am. St. Rep. 97, et Mortgage. See note 7 Pro. R. A. 687-9. seq. §827 ADMINISTBATION OF ESTATES. 534 personal in their nature and do not follow the office into the hands of another who may succeed him. § 827. Equitable Conversion. If the testator directs the nature of the property to be changed, as to convert the real into personal or personal into real, equity re- gards that as done which is to be done, and the property will be treated as though the conversion had actually taken place. This is the familiar doctrine of equitable conversion. So much in regard to real estate and the powers that may be conferred respecting it. § 828. Chattels Real go to the personal representative They are estates in land less than freehold, such as es- tates for years, estates from year to year, and estates for the life of a third person after the death of the tenant. The interest of a mortgagee in the mortgaged real estate is personal property, and goes to the representative. If the representative buys the property -on mortgage fore- closure the land is then regarded as personal property and as an asset. The mortgaged property itself, or the equity of redemption, is real estate and goes to the heirs of the mortgagor if he dies. § 829. Recapitulation. To recapitulate as to real es- tate: Freehold interests in land are never in themselves assets. They may be and are made so by statute. They are ultimate assets in case the personal property becomes insufficient to pay the debts, but primarily they are never assets. They go to the heir and not to the personal rep- resentative. The power of the administrator over the real property depends upon the power conferred upon him by the probate court. The power of the executor de- pends upon the will of the testator. If the power is given to two or more it must be exercised by them all together. If the estates are for life or for years they are personal property and go to the personal representative. A leased tenement goes to the personal representative. So also do mortgages on property. And if the administrator has to buy the land it still remains in the form of personal 535 ADMINISTEBING AND SETTLING ESTATE. § 830 property; the land itself, however, goes to the heir and not to the personal representative. B. Personal Property." § 830. Chattels in Possession. The chief portion of the representative's estate is the personal property of the deceased. This is of two kinds— personal property in possession and rights in action. Personal property is almost always assets, whether it be tangible or intangi- ble, choses in action or choses in possession. The per- sonal property in possession is ordinarily divided into two classes: 1, chattels animate; 2, chattels inanimate. Of the chattels animate all domestic or domesticated ani- mals go to the personal representative. Wild animals in cages would also go to him. Of chattels inanimate, all belonging to the deceased at the time of his death go to the personal representative. Trees, grass and fruit, while still annexed to the soil, are real estate, and go to the heir. If they have been severed from the soil during the life of the owner they become personal property, and go to the representative. Crops raised annually, of the kind known as emblements, go to the representative as against the heir, but not as against the devisee. § 831. Choses In Action In General. Eights in action of the deceased go to the representative. These include stocks, bonds, and evidence of indebtedness, policies of insurance payable to him or to his representative, rents accruing but not collected during his lifetime; dividends and interest falling due on specific legacies during his lifetime; deposits in bank in his name; interests in pat- ents and copyrights, and generally all debts, demands, and obligations due and owing to him at the time of his decease, and whether absolute or contingent. In order that the personal property shall constitute assets, it is necessary that the decedent should have been the owner of it at the time of his death, though his pos- session then is not essential. 12 See note 78 Am. St. Rep. 179. § 832 ADMINISTBATION OF ESTATES. 536 Causes of action upon contracts made by the deceased upon which he might have sued if he had lived, survived his death at common law, and became assets in the hands of the representative who might sue after the death of the deceased. § 832. Personal Damage for Breach of Contract. A cause of action arising upon an express or an implied contract did not survive, where the damage was purely personal in its nature, and did not affect property rights and interests. In the case of a contract for personal services, when one party died before the contract was executed, the contract became extinguished. And where, notwithstanding a contract has been partly per- formed, there is nothing in the contract that affects the estate, the action does not survive. § 833. Pending Actions. Actions for the recovery of damages for torts did not survive to the personal repre- sentative at common law, but died with the person in- jured, or with the person committing the tort, unless his estate had profited by the tort. Actions based upon con- tract, as a rule, survived; actions based upon tort, as a rule, did not survive at common law. All personal actions died with the person at common law. This was true usually. This rule has been changed by statute in most of the states. And actions for assault and battery, slander, libel, false imprisonment, or other wrongs to the person are usually made to survive as well as actions for the recovery of personal property taken, or its value. It is necessary to keep in mind the common law rule when you are examining the statutes. § 834. Wrongs Causing Death. At common law no action could be brought to recover damages for causing the death of a person. This rule has been changed by statute in England and in most of the states, and a cause of action is given to the personal representative usually, though the damages recovered are ordinarily declared to be for the benefit of certain persons named, and are there- 537 ADMINISTERING AND SETTLING ESTATE. § 835 fore not assets of the estate. The action is brought by the personal representative in his representative capacity nominally; and the creditors have no right to the proceeds. 1 §835. Rights of Action Concerning Land. As the real estate goes to the heir, covenants running with the land go to the heir also. But where, the breach of such a covenant has occurred in the lifetime of the deceased and its ultimate injury has thus resulted, the personal representative may recover for the breach. He may also sue upon collateral covenants the breach of which during the lifetime of the deceased resulted in an injury to the personal estate. §836. Property Conveyed to Defraud Creditors. Property conveyed by the testator in fraud of his credit- ors is assets, and the representative may and should sue to recover it, if needed to pay debts. §837. Debts Due from Executor. At common law debts due from the executor to the deceased were deemed to be discharged by his appointment. 13 In the United States such a debt is assets. In the majority of the states a debt due from the executor stands upon precisely the same footing as any other debt. Under some statutes he might show that he was insolvent and unable to pay. In other states his sureties are bound to see that the amount is turned in as assets. § 838. Property out of Jurisdiction. 14 Property situ- ated in another jurisdiction from that in which the officer is appointed cannot be considered assets for which he is accountable, unless he is able to reduce such foreign property to his possession by virtue of the power granted him where appointed. For instance, an executor is appointed in Michigan, and there are assets in South i See Rood's Important English Stat- executor held In trust for the next of utes, 18. kin- Carey v. Goodlnge (1790), 3 13 In Chancery the appointment of Brown Ch. 110. a debtor as executor was never an ex- i* See note 45 Am. St. Rep. 664-674. tinguishment of the debt, but the § 839 ADMINISTKATION OF ESTATES. 538 Carolina; these assets never get into the hands of the Michigan executor. When the time comes for settle- ment the persons interested claim that the executor should have collected them, and that he must account for them. The local holders of the property may give it up, but if they do not and the executor has not the power to collect it, he will not be held liable. If he can get it, then he should get it, and he will be held liable. But if he cannot get the property by the authority of the court which seeks to hold him responsible, and the foreign holders of the property refuse to give it up, it is the sensible rule that the executor should not be held re- sponsible for the property. The modern rule is, that unless he is able to reduce them to possession by the law of the place where he was appointed, he is not liable. 15 § 839. How Situs of Assets is Determined. Debts due by simple contract are deemed assets in the jurisdiction where the debtor resides. Debts due by specialty (under seal) are assets where the securities are at the time of the owner's death. Debts due by judgment are assets where the judgment is recorded. 16 Debts upon leases are assets where the land lies. Claims against the government are assets wherever the government is willing to pay. §840. The Income, Increase, and Fronts of assets constitute assets ; and property lost by the negligence of the representative is assets for which he is liable. 3. INVENTOET AND APPEAISEMENT. § 841. Duty to Make Inventory. Having taken upon himself the administration of the estate, the officer is required by statute in all the states to make and return an inventory of the estate within the time prescribed by IB Welch v. Adams (1890), 152 Mass. 16 Vaughn v. Barret (1833), 5 Vt. 74, 25 N. E. 34, Mechem 164; Pugate 333, Mechem 139. v. Moore (1890), 86 Va. 1045, 11 S. B. 1063, Mechem 145. 539 ADMINISTERING AND SETTLING ESTATE. § 842 statute. A detailed or itemized account is to be given of all the articles. § 842. What to Include. This inventory is to include all property within his possession or knowledge which is or may be assets. In several of the states he is bound to include in the inventory property of all descriptions. § 843. A Failure to Make or Return the inventory as required by law, would be a breach of the officer's bond, and statutes usually provide a summary proceeding or remedy for securing compliance, and for obtaining prop- erty concealed or withheld. § 844. Appraisement. In most of the states upon com- pletion of the inventory the property therein described is required to be appraised by appraisers, usually ap- pointed by the court, who are required to set down the true value of each article.. §845. Conclusiveness. The inventory and appraise- ment are not conclusive either for or against the officer; but they are prima facie evidence of the amount of the assets and their value. 4. OF THE COLLECTION AND POSSESSION OF THE ASSETS. § 846. Right to Possession. It is the right and the duty of the officer to collect and take into his possession all the assets of the estate which may come to his knowl- edge. His right to possession during the settlement of the estate is superior to that of the heir or legatee. The most pointed case, of course, would be that of a specific legatee; and even as against him the officer has the right to the possession, § 847. Liability for Failure to Collect. He is bound to commence and prosecute all actions which are neces- sary to enable him to acquire possession of the chattels belonging to the estate, to collect the debts due to the estate, and to sue upon and enforce those rights of action which survive to him as part of the assets of the estate. §848 ADMINISTBATION OF ESTATES^ 540 In these respects he is bound to exercise good faith and reasonable prudence and diligence. While he is not protected by any compromises or agreements and awards of arbitration he may make, the debtor or creditor with whom he so deals is protected thereby. The estate is bound, but the officer liable. 17 He is not bound to at- tempt the collection of clearly bad debts, nor is he liable for their non-collection; but for debts or property lost by his negligence he is liable. "Where the claim is a doubtful one he may ordinarily ask for indemnity, but must be prepared to show that it was not lost by his negligence. He is not liable for the loss through a mis- take of law, where he acts in good faith and upon advice of reputable counsel. In many states he may apply to the court to ascertain whether he should prosecute or not, if he is in doubt. Good faith and reasonable care are the measure of his liability. 18 §848. In What Capacity He Sues. In sueing upon contracts made or wrongs committed during the lifetime of the deceased, the representative sues in his official capacity. As to contracts made and wrongs done since . the death of the deceased, he may usually sue officially or individually, at his option. To entitle the represen- tative to sue upon the contracts of the deceased it is not necessary that the contracts shall refer to the representa- tives, and the right will exist even though the contract purports to be with the deceased and his heirs or next of kin. The right of action, if there is any surviving, is to the personal representative. 5. POWERS AND DUTIES IN THE MANAGEMENT OF THE ESTATE. § 849. Forecast. We have found that the representa- tive is entitled to the assets; we have found what the assets are; we have found that it is his duty to get them. 17 Parker v. Providence S. & S. Co. 18 Parker v. Providence S. & S. Co. (1891), 17 R. I. 376, 23 Atl. 102, Me- (1891), 17 R. I. 376, 23 Atl. 102, Me- chem 170. See note 78 Am. St. Rep. chem 176. See note 4 Pro. R. A. 573-6. 187, 4 Pro. R. A. 583-7. 541 ADMINISTERING AND SETTLING ESTATE. §850 Now, what is the measure of his responsibility when he has them? § 850. Degree of Care Required. 19 The law requires that the representative in dealing with the estate shall act in good faifti and shall exercise that degree of care, skill and diligence which men ordinarily exercise in the management of their own affairs. He stands in the office of a trustee, and like other trustees he is not chargeable absolutely but is charged with the care that an ordinarily careful man would take in his own affairs. If he fails to exercise this degree of care and skill, and the property of the estate is thereby lost, or injured, the representative will be personally liable. 20 § 851. Liability for Making Personal Use of Assets. He should keep the property and funds of the estate sepa- rate from his own; and a failure to do so is a breach of his trust. If he deposits the funds in his own name in a bank, he is responsible for their loss through the failure of the bank. If with reasonable prudence he deposits in his official capacity he is not liable if the bank fails. He must not use the funds of the estate in his own busi- ness or speculate with them on his own account. If he does, it is a breach of his trust; and if the money is lost, he is liable for the loss. If the investment is successful, he is liable for all the profits. 21 § 852. Making Investments. Where he has money in his hands with which he can pay the debts of the estate he must so do, as that is what a reasonably prudent man would do. If there are no such debts then he must invest the money for the estate; and in this he must, if there is no order of the court or no statute, use good faith and ordinary prudence and judgment. 22 is See note 12 Am. St. Rep. 311-5. 2! Investment*. See note on lnvest- 20 Parker v. Providence 8. & S. Co. ments In stocks by executors and ad- (1891), 17 K. I. 376, 23 Atl. 102, Me- mlnistrators, 78 Am. St. Rep. 199; and ehem 170. degree of care and skill required, 12 21 See note as to when officer is Am. St. Rep. 311-5 ; and on invest- liable to pay interest, 6 Pro. R. A. ments in general by such officers, 4 548-652. Pro. R. A. 197-207. § 853 ADMINISTRATION OF ESTATES. 542 § 853. Continuing Business of Deceased. The repre- sentative is appointed to close up and not to continue the business of the deceased, and he has no general authority to continue to carry on the business or trade in which the deceased was engaged. If he does so he is* liable for losses and must account for profits. A reasonable discretion will be allowed him in choosing the time, place and cir- cumstances so that the business may be closed up with the greatest advantage to the estate. Power to continue the business may be conferred by the testator in his will, or by the consent of those who are interested in the estate. 23 §854. Performing Deceased's Contracts. Undertak- ings of the deceased to perform purely personal services cannot be performed by the personal representative; but contracts of a general nature binding upon the deceased may be performed by the representative if there is a reasonable prospect of profit thereby. 24 § 855. Power to Sell Personalty. The title to the per- sonal property vests in the representative for the pur- pose of paying debts and legacies, and he may sell the property when necessary for that purpose. Unless re- strained by statute he may sell without the order of the court subject to his general obligation to act in good faith and with reasonable prudence. In some states stat- utes exist providing for a license by the court to sell personal property when necessary; but those statutes are usually held to be for the protection of the officer only; and he may sell without a license, if he can realize the fair value and not less than the inventory value. In some states, I think in Indiana, for instance, the statutes are construed as mandatory; but this is not the general rule. Of course where the statutes are construed as man- datory, the officer cannot sell without a license. 28 See note on continuing the busl- right to perform ; and 22 Am. St. Rep. ness, 5 Pro. R. A. 397-401. 815, on extent to which deceased's 24 See note 78 Am. St. Rep. 200, on offers bind. 543 ADMINISTEBING AND SETTLING ESTATE. § 856 §856. Giving Mortgages to Get Funds. Unless re- strained by statute the representative may pledge or mortgage the personal property to obtain the necessary funds. 28 § 857. Rights of Purchaser from Officer. A third per- son buying of the officer in good faith is not bound to see that the officer properly applies the proceeds, nor can his title be affected by the fraud or misappropriation of the officer, if he himself acts in good faith with reasonable prudence and parts with value. 28 § 858. Liability on Officer's Contracts. The officer as such has no power to bind the estate by executory con- tract, and such contracts will bind himself or no one. 27 To relieve himself from personal responsibility, he must expressly limit the promises to the assets of the estate. 28 §859. Liability for Torts. The estate is not liable for any torts committed by the officer. He only is liable. 29 § 860. Requisites to Sale of Land. In the absence of a statute the representative has no power to sell or mort- gage the real estate, though in substantially all of the states such a power is conferred by a statute for the pur- pose of paying debts and legacies. 30 These statutes pro- vide that in case of a deficiency of the personal estate, the court may authorize a saleor mortgage of so much of the real estate as may be necessary to supply the deficiency. The statute sometimes prescribes a period within which a license can be applied for. These statutes usually require: 1, a petition setting forth the necessity for making the proposed sale; 2, a special bond covering the proceeds of the sale; 3, a formal sale, usually at 25 Carter v. Manufacturers Nat See note on such contracts, 7 Pro. Bank (1880), 71 Me. 448, Mechem 176. B. A. 594-598. 26 Carter v. Manufacturer's Nat. 29 Carr v. Tate (1899), 107 Ga. 237, Bank (1880), 71 Me. 448, Mechem 176. 33 S. E. 47, 4 Fro. R. A. 576, and cases 27 Luseomb v. Ballard (1855), 5 cited In opinion ; see also note In report Gray (Mass.) 403, Mechem 180. last cited, pp. 578-9. See also note 52 28 Johnson v. Wallls (1889), 112 N. Am. St. Rep. 126-9. Y 230, 19 N. B. 653, Mechem 144 ; so See note 4 Pro. R. A. 384-7. Rich v.' Sowles (1892), 64 Vt. 408, 23 Atl. 723, Mechem 178. § 861 ADMINISTRATION OF ESTATES. 544 auction; and, 4, the confirmation of the sale and the execution of a proper deed under the direction of the court. § 861. Counsel to the Purchaser. The jurisdiction to order a sale of the real estate is a purely statutory one; and in order that a valid title may pass it is essential that the court shall properly have acquired jurisdiction, and that all the requirements of the statute shall be substantially complied with. It is always incumbent upon the purchaser to see: 1, that the court had juris- diction; 2, that there was such a provision in the statute as would justify the sale. The sale must be in substantial conformity with the statutory provisions. The purchaser is not liable for any misappropriation of the' money paid by him unless he connived at it. He need not see to it that it is properly used or accounted for. An officer cannot buy at his own sale. 31 So far as the personal property is concerned, he has the power to sell unless it is taken away by statute. As to real property, he has no power to sell unless such power is conferred upon him by statute. 6. OF THE LIABILITY OF THE REPRESENTATIVE. A. Liability tor the Acts op the Deceasfd. § 862. On Contracts of Deceased. 32 To the extent of the assets the officer is* liable in his representative ca- pacity for all the debts, obligations and contracts of the deceased, upon which actions had been or might have been brought in his lifetime, excepting only those con- tracts founded upon purely personal consideration. As a rule, a claim that would be an asset in his favor if he were plaintiff would be a claim against him if he were defendant. § 863. For Torts of Deceased. Actions of tort against the deceased, except where his estate had profited by the si Word v. Davis (1899), 107 6a. 32 See notes 52 Am. St Rep. 120. 780, 83 S. E. 691, 4 Fro. R. A. 650. Bee also note 4 Fro. R. A. 654-6. 545 ADMINISTERING AND SETTLING ESTATE. § 864 tort, died with him at common law; but the same statutes which make them survive in his favor, usually make them survive against him. The ordinary statute provides: "The following actions of tort shall survive;" but it does not say which way they shall survive— either'f or or against him, and they will survive either way. §864. When Deceased Was Liable With Others. Where two or more are jointly indebted and one dies, the action at common law is to be brought against the sur- vivor only. If the obligation was joint and several, the action may be brought either against the survivor or against the representatives of the deceased. If an action is pending on a joint obligation and one dies, the action proceeds against the survivor. If pending on a joint and several obligation and one dies, his representative may be brought in. B. Liability for His Own Acts. § 865. For Devastavits. The officer is individually liable for those acts, whether of active wrong doings or negligence, by which the estate suffers loss. Those wrong acts are frequently spoken of as "devastavits." 33 § 866. On Contracts. He is also liable individually upon the contracts which he makes, unless he has ex- pressly excluded personal liability. 34 § 867. In What Capacity Sued. When sued upon an action arising in the lifetime of the deceased, the action is against him in his representative capacity. When sued upon causes of action arising since the death, he is sued as an individual. 35 7. AS TO THE PAYMENT OP DEBTS AND LEGACIES. § 868. Priority of Debts. It is the duty of the repre- sentative to pay out of the assets the legal charges 33 Parfcer v. Providence & S. S. Co. 34 Johnson v. Wallis (1889), 112 N. (1891), 17 R. I. 376, 23 Atl. 102, Me- T. 230, 19 N. E. 653, Mechem 144. chem 170. See note 12 Am. St. Rep. 35 See notes 52 Am. St. Rep. 120, et 111-5. se, J- 35 § 869 ADMINISTEATION OF ESTATES. 546 against the estate, and to pay them in the order of pri- ority, if any specified by the statute. As to priority, the statutes usually provide : 1, for the support of the widow and children; 2, for the funeral expenses; and, 3, for the testamentary expenses. All of these three classes must ordinarily be given priority over every other claim. 36 If the officer pays a claim of inferior rank and does not leave enough to pay a claim of superior rank, he makes himself individually liable. In connection with this I can only refer you to your own statutes. ■ § 869. Presentation and Allowance of Claims. Public notice is required to be given that creditors may present their claims for allowance and payment, and the statutes prescribe a time within which they must be presented or be barred. These statutes must be substantially com- plied with in order to bar creditors. 37 In some of the states claims are to be presented for allowance to the representative. In most states provision is made for presentation to, and allowance by, some tribunal ap- pointed by the court, or by the court itself. § 870. Officer's Duty to Make Defense. It is the duty of the representative to interpose all defenses which the deceased might have made in his lifetime, as well as those arising since, and to take advantage of all offsets and counterclaims which are available. 38 He will not usually be allowed to waive the benefits of the statutes of limi- tation, nor to make good dealings which are invalid under the statute of frauds. A case arose in this state some time ago, where goods had been purchased in violation of the statute of frauds. While the goods were in transit, the purchaser died. The representative afterward tried to accept the goods and make the estate liable for them. The court held, however, that he could not do this. 36 See notes on funeral expenses, 78 38 See notes on Waiver of Statute of Am. St. Rep. 183, 5 Pro. E. A. 723-5. Limitations by Officer, 78 Am. St. Rep. 37 Warren v. Hendricks (1901), 40 188-190, 52 Am. St. Rep. 123; and on Ore. 138, 66 Pac. 607, 7 Pro. R. A. Right to Set-offs and Counterclaims by 192; Lynch v. Farnell (1902), — R. I. and against, 47 Am. St. Rep. 588. — , 53 Atl. 869. 547 ADMINISTEKING AND SETTLING ESTATE. § 871 §871. Allowance of Contingent and Unmatured Claims. Provision is made by statute for the allowance of contingent claims, and for the allowance of claims not yet due. Take a case of this sort : The deceased owes a note which has ten years to run, and the statute provides that all claims shall be presented within two years. Now, although the note is not due for ten years, it must be presented within the two years that provision may be made for its payment. Or suppose the deceased was a surety upon a note not yet due, and which the prin- cipal debtor has not yet refused to pay: In this case if must be presented, and provision must be made in the settlement of the estate for the payment of this note if it should be presented. §872. Necessity of Getting Claims Allowed. All claims against the estate, whether they are due or not, so far as any personal charge is concerned, must be pre- sented for allowance, and the fact that the creditor is a non-resident and did not know of the debtor's death gives no excuse for not presenting nor any right to prosecute the claim after the estate is closed.' 39 § 873. Duty of Officer to Present Statement. When the claims are finally passed upon, it is the duty of the officer to submit to the court a statement of the amount and nature of the claims, and of the amount and char- acter of the assets available for their payment. § 874. Application for Order to Sell. 40 If there is a deficiency of personal assets, applications for license to sell real estate are then made, and such sales had. § 875. Order of Distribution. When the estate is in a distributable form, an order or decree is made deter- mining the order of priority of payment, and the amount of the dividends, where all cannot be paid in full, and directing payment in the manner so determined. 3» Security Trust Co. v. Black River 40 See notes 3 Am. St. Rep. 204, 79 Nat. Bank (1902), 187 U. S. 211, 23 S. Am. St. 83-89, 52 Am. St. Rep. 118, Ct. 52. 26 Am. St. Rep. 22-28. § 876 ADMINISTBATION OF ESTATES. 548 § 876. Paying Legacies Before Debts. Before the rep- resentative can safely pay over the legacies, whether general or specific, he must see that the debts are paid. If there are contingent Claims outstanding, or if the legacy is made payable before the time for the presen- tation of claims has expired, the officer is entitled to indemnity from the legatee before paying. § 877. Right of Legatees to Payment and Possession. Unless otherwise provided by statute, legacies are deemed payable within one year from the testator's death. 41 The legatee has no right to take possession of his legacy until the representative assents. If he un- reasonably withholds his assent the legatee has a remedy in equity. If a specific legacy is appropriated to the payment of debts or other charges against the estate the legatee is entitled to indemnity from the estate not specifically bequeathed; and if this be not sufficient, to contribution from other specific legatees. § 878. Order of Appropriation of Assets. In appro- priating the assets to the payment of debts the following order is usually to be observed: 1, the general personal estate, unless expressly or impliedly exonerated; 2, land expressly devised to pay debts ; 3, estates which descend to the heir; 4, real or personal estate which has been devised or bequeathed subject to the payment of debts; 5, general pecuniary legacies, pro rata; and, 6, specific legacies and devises, pro rata. 42 Where there is sufficient personal property to pay the debts before the land is taken, the heir or devisee may have reimbursement out of the personal estate. "Where the debts are charged upon the land before the personal estate is taken, the land will be compelled to reimburse the personal estate. « Welch v. Adams (1890), 152 Mass. (1847), 5 Pa. St. 351, Mechem 147; 74, 25 N. E. 34, Mechem 164. Martin, In re (1903), 25 E. I. 1, 54 42 Hays v. Jackson (1809), 6 Mass. Atl. 589. See also many cases cited 149, Mechem 150 ; Hoover v. Hoover ante, §§ 741-7. 549 ADMINISTERING AND SETTLING ESTATE. § 879 8. CO-EXECUTORS AND ADMINISTRATORS. §879. Powers of Each. The administration of the estate may be intrusted to two or more executors or administrators. In such a case the authority and interest of all are deemed to be entire, and they are looked upon in law as one person. Upon the death of one, the entire authority vests in the survivor. Each is entitled to the possession of the entire assets, and the possession of one inures to the benefit of all. In regard to the personal estate, any one or more may do what all might do, and the act of one within the scope of his duties binds all. §880. Liability of Each. The same good faith and diligence which are required of a sole representative are required of each of two or more. In general, each one is liable for his own acts only, and for the assets so far as they come into his hands. But he will be liable for the acts and defaults of his co-representative where he joined with him in the act, or reduces the assets to the sole pos- session of his associate, or is guilty of negligence in per- mitting the default of the other, or in any other Way contributes directly or actively in the default of the other. Their several acts are not rendered joint by the fact that they gave a joint bond. 43 § 881. Joining in Actions. All should join in bringing actions in behalf of the estate, and all should ordinarily be sued together. But one may sue or be sued on a con- tract made on his own account, or may sue for goods taken out of his possession. § 882. Actions Against Each Other. One cannot sue the other or the estate on matters connected with the administration. §883. A Principal and an Ancillary Representative are not co-representatives within these rules. They can 4SMcKim v. Aulbach (1881), 130 ley (1890), 120 N. T. 84, 24 N. B. 306, Mass. 481, Mechem 183 ; Nanz v. Oak- Mechem 181. § 884 ADMINISTRATION OF ESTATES. 550 only be co-representatives where they are appointed by the same court and within and for the same jurisdiction. 44 9. FOREIGN REPRESENTATIVES." § 884. Actions By and Against. A representative ap- pointed in one state has thereby no legal authority in another state, and cannot sue or be sued in another state in his representative capacity. The fact that he resides where he is sued does not make him liable. He is none the less a foreign administrator. Upon obligations which may be enforced by or against the representative in his personal capacity, actions may be brought by or against him in a foreign state. 48 § 885. Rights of Assignee of Foreign Administrator. Although the foreign representative cannot sue, it has been held that his assignee may sue. For example, A, who is an executor in Ohio, cannot sue in Michigan with- out re-appointment. But if he should make an assign- ment of a promissory, note in his possession to B, then B could come into Michigan and bring an action for his private individual claim. 47 . §886. Protection of Payment to Foreign Adminis- trator. It is held also that a voluntary payment or delivery of debts or property to the foreign principal representative before a local one has been appointed, will protect the party. A Michigan debtor who, before any administration is taken out in Ohio, voluntarily pays the debts or delivers the property belonging to the estate, will be protected from the ancillary administration. But such payment after the appointment of the ancillary administrator would be no protection. 48 44 See notes 45 Am. St. Rep. 671. Fugate v. Moore (1890), 86 Va. 1045, 46 See notes on rights, duties and 11 S. E. 1063, Mecbem 145. jurisdiction over, 45 Am. St. Rep. 664- 47 Johnson v. Wallls (1889), 112 N. 7, 6 Am. St. Rep. 184-5 ; on rights and Y. 230, 19 N. E. 653, Meehem 144 ; powers of executors and administrators Peterson v. Bank (1865), 32 N. T. 21. In foreign states, 4 Pro. R. A. 42-7. 48 Vaughn v. Barret (1833), 5 Vt 48 Johnson T. Wallls (1889), 112 N. 333, Meehem 139. T. 230, 19 N. E. 653, Meehem 144; 551 ADMINISTEBING AND SETTLING ESTATE. § 887 §887. Appointment as Ancillary Administrator. Statutes exist in most states by which an executor or administrator appointed in another state may be re- appointed, if no local administration has been already granted. 49 I think it is safe to say that if an adminis- trator or executor has been duly appointed he may go into another state and have re-appointment in that other state. This is more common in the case of executors than administrators. 50 § 888. Preference to Local Creditors. Administration must be taken out in each state where there are assets. After the satisfaction in whole or pro rata of the local creditors, the residue of the assets will be transmitted to the principal jurisdiction to be added to the main body of the assets there. The amount to be allowed to local creditors will usually be determined by the proportion which the assets in all jurisdictions bear to the debts in all jurisdictions. On this last question there is some dif- ference of opinion, as I have already told you; but this is the prevailing rule in the United States. 10. THE ADMINISTEATOB WITH THE WILL ANNEXED. § 889. The Powers and Duties of the administrator with the will annexed, are, in general, the same as those of an executor; but special commissions, or powers which imply a personal confidence in the executor named, will not pass to the administrator with the will annexed. I think it is safe to say that all the powers which the law confers, pass to the administrator with the will annexed. 51 11. ADMINISTRATOB DE BONIS NON.52 §890. Powers and Duties. The administrator de bonis non, whether appointed for a testate or for an intestate estate, has all the rights and powers, and is 49 See note 45 Am. St. Rep. 664-7, will be found In 7 Pro. R. A. 380-385. on the right to appointment as ancll- 61 See note on powers of adminlstra- lary administrator. tors with will annexed, 5 Pro. R. A. go An Extended Note on the powers 119-121. and duties of ancillary administrators 52 See note 3 Pro. R, A. 77-9. § 891 ADMINISTRATION OF ESTATES. 552 charged with all the responsibilities, of an original rep- resentative, with respect to the assets left unadministered by his predecessor. He may recover all assets which he can identify, either from his predecessor or from third persons, including those fraudulently conveyed, and may prosecute all actions in law or equity, which are neces- sary to enable him to recover all the unadministered assets. §891. How Far Bound by Acts of Predecessor. What- ever his predecessor rightfully did is binding upon the successor; but not what he did without authority. The successor is bound upon those contracts of his prede- cessor which bind the estate, and no other, and may en- force those which are assets of the estate. 63 He is not liable for the default of his predecessors, but is liable for his own defaults, like an original representative. 12. ACCOUNTING AND DISCHARGE OF THE OFFICER. § 892. Duty to Keep and Render Accounts. The rep- resentative is bound to keep full and accurate accounts of his official transactions, and usually to render accounts at stated intervals. In almost every state he is required to render an account annually, even though the estate is not yet closed. Upon the termination of the trust, either by his full performance or by his resignation or removal, it is his duty to render a final account of his administra- tion. § 893. Charged with What. The officer is to charge himself with all assets which have come into his posses- sion, whether included in the inventory or not ; and with all income, increase, and profit, whether arising spon- taneously, or as the result of his own good management. He is to be charged, also, with all assets or profits which have been lost by his misconduct or negligence. § 894. Credited with What. He is to be credited with all his lawful distributions and payments, with all reaSOn- is 3 Luscomb v. Ballard (1855), 5 Gray (Mass.) 403, Mechem 180. 553 ADMINISTERING AND SETTLING ESTATE. § 895 able and necessary expenses and disbursements on the part of the estate, and with his proper compensation. 54 At common law he was entitled to no compensation, but in most states his compensation is fixed by statute, and the court has power to, and will, allow him extra com- pensation for extra or unusual services. 55 At common law he had no compensation because, whatever part of the estate remained undisposed of, belonged to him. That rule is done away with in this country and he is usually allowed compensation by statute; and the court will allow him extra compensation where he has done extra services. §895. Order of Allowance and Final Discharge. Upon the final allowance of his account, the officer is entitled to be discharged from his trust and to have his bond can- celled and satisfied. Before this will be allowed, notice must be given to all parties interested, that they may appear and dispute its correctness, if they desire. Ap- peals may be taken from the order allowing his account ; but, unless appealed from, the order is usually regarded as conclusive, and not to be collaterally called in question. Upon the final allowance of the account and the discharge of the officer after the full administration of the estate, the administration of the estate closes. 54 Rich v. Sowles (1892), 64 Vt. 408, executors and as trustees. In re Slo- 23 Atl. 723, Mechem 178. cum (1901), 169 N. T. 153, 62 N. B. 56 Double Commissions. See note 7 130, 7 Pro. R. A. 235, holds trustees Fro. R. A. 240-242, as to when execu- not entitled to commission, their ac- tors may have double commissions, as counts as executors not being closed. "Let us be grateful to writers for what is left In the Inkstand; When to leave off is an art only attained by the few." INDEX. [FIGURES REFER TO SECTIONS; n MEANS NOTE.] ABANDONMENT, by death of occupant, 6. by vacating possession, 5. of gift, effect on gift over, 576. ABATEMENT, of legacies to pay debts and legacies, 741-7. ABEYANCE, estates in, 580-590. ABILITY, mental, required to make will, 109-113. ABRIDGEMENT, of prior estate by gift over, 568, 572. ABSENCE, of beneficiary when will executed as evidence on undue influence, 191, n. 59. of husband when wife 's will is acknowledged, 318, n. 46. of testator when witnesses sign, 301-7. of witnesses when testator signs, 273. of words of gift, effect on vesting, 591. ABSOLUTE INTEREST, passes by what, ch. 16. ABSURD, effect not presumed, 426. ABSURD WILL, to hold if clear, 413. ACCELERATION, of remainders, 576. ACCEPTANCE, makes donee personally liable to pay charge, 756. of gifts causa mortis, 32. of gift, estoppel, 625. of gift creates personal liability on charge, 756. of signature by testator, 256 and n. 19, 22. ACCIDENT, destruction of will by, 355. ACCRUED SHARES, on survivorship, 662-5. ACKNOWLEDGMENT, necessary for attestation, 282, 283. of former will for indirect re-execution, 395. 555 556 INDEX. [figures refer to sections; n means note.] ACKNOWLEDGMENT— continued. of signature by witness not signing in presence 304. separate, by married women, 318, n. 46. what sufficient, 282-284. where it must be attested, 281 and n. 10-13. witnesses need not hear same, 274 and n. 89. ACQUIESCENCE, imposing implied trust on donee, 173. ACTIONS, amounting to request to another to sign for testator, 267. implying desire to have persons listen to oral will, 233. ACT OF GOD, excusing performance of condition, 596. ACTUAL SERVICE, enabling soldier to make nuncupative will, 238. ADDING TO WILL, by parol, 160, 436-9. ADDITIONAL LEGACIES, what are, and incidents, 701. ADEEM. See Ademption. ADEMPTION, as affected by re-execution, 397. by satisfaction, 715-734. of devises, 368-371, 728. of legacies by sale of or destruction of subject matter, 709-7-14* ADJUDICATION OF WILL ON PROBATE, effect on construction, 167, 168. not conclusive of rights of pretermitted child, 164. ADMINISTRATION, of estate, 13. ADMINISTRATOR, who takes gift to, 458. ADMINISTRATORS. See Executors and Administrators. ADMISSION, by destroying or concealing will, 357, n. 37. of one legatee not evidence against another, 188. ADMISSIONS, of one accused of undue influence, as evidence, 188. ADOPTED CHILDREN, embraced in statutes as to lapse, 674. not comprehended in term children, 442. not usually included in term issue, 445. ADOPTION, of destruction by another, 365. of child revoking will, 381, n. 53, 385. of original signatures, as re-execution, 394. ADULTERY, between beneficiary and testator — undue influence, 182. index. 557 [figures refer to sections; n means note.] ADVANCEMENTS, doctrine of applied by analogy to gifts to legatee by parent, 723-734. ADVANCES, as satisfaction of legacy, 700, 715-734. construction of provisions in will concerning, 719. liability of legatee to refund excess over legacy, 719. to legatees, provisions as to deducting, 718. to primary donee when charged to substitute, 700. ADVICE, creating precatory trust, 494. ADVISEES, confidential, as witnesses, 317 and n. 44. AFFECTION, for wife, as undue influence, 177. AFFECTIONS, as proof on issue of insanity, 121-4. changes in, as revoking will, 390. "AFTER," does not prevent vesting, 583. of age &c. as time for payment, &c, effect on vesting, 583. showing definite failure of issue, 649, n. 21. AFTER-ACQUIRED LAND, devise of, 88, 368. passes by general devise, 526. statutes making it pass, 526-9. AFTER-ACQUIRED PERSONALTY, rule as to bequest, from Roman law, 87. may be bequeathed by will, 87. passes by general residue, 524. AFTER-BORN, children as "survivors," 661. children included, when, 467-477. "AFTER PAYING," debts and legacies implies charge, 749. debts prevents legacy operating as satisfaction, 740. does not prevent going to residue on lapse, 521. AGE, necessary for making wills in the United States, 107. at which wills could be made under English law, 106. at which wills could be made under Roman law, 106. at which one is competent as witness to will, 316. marriage under as valid condition, 612. old, as affecting mental capacity, 111. payment to be made on attaining, when vest, 586. AGENT, of donee of gift causa mortis, 31. of testator as donee — undue influence, 191. 558 INDEX. [figures refer to sections; n means note.] AGENT— continued. signing will for testator, 263-7. signing will for witness, 299. AGGREGATE FUND, survivorship in gifts of, 664, n. 64. AGREEMENTS, to give by will or to make will, 51-57. ALIENATION, courts favor freedom of, 549. feudal restraints on removed, 95. validity of conditions restricting, 605-610. ALIENS, bequest to, 213. devise to, 213. holding of land by, 213. right to will personalty at common law,' 139. right to will land at common law, constraints upon, 140. rights of, in land in United States, 140. wills determined by law of domicile, 409. "ALIVE," as affecting rights by survivorship, 658-665. restricting or changing meaning of heirs, &c, 451. "ALL," effect to include afterborn children, 468, n. 91. preventing double description restricting, 510. ALTERATION, made operative by republishing, 396. ALTERATION OF ESTATE, revocation by, chap. X, part 2, A. ALTERNATIVE REMAINDERS, what they are and when good, 568. ALTERNATIVE WILLS, probate, 67. when not allowed, 67. valid, 63. AMBIGUITIES, causes of, 415a. in will which may be aided by parol, 417. as to beneficiaries, 436-440. number of beneficiaries misstated, 482. as to property given, 513-516. AMBULATORY, is revoking clause, 361, and n. 62. wills are, till death, 320. AMERICA, trend of laws in, as to disposition of estate, 101-102. INDEX. 559 [figures refer to sections; n means note.] "AMONG," effect of word as to distribution, 489. '"AMOUNT," directed to be deducted from legacy, no interest on. 720. gift of same as substitution, 696. AMOUNT, specified to each member excludes after-born, 468, n. 93. statements of, in description have little weight, 510, 513 . ANCESTOR, heirs of living, 451. rule in Shelley's case, 532, 549-551. "AND," held to mean "or," 682, 448, 457, 421. meaning "or," and the reverse, in general, 604, n. 18. meant by "or" in death, unmarried or without issue, 646, n. 11. ANGEE, . as undue influence, 180. will made in, 390. ANIMUS TESTANDI, essential to will, 58. ANNUITY, and income distinguished, 708. as gift of fund charged with payment, 541. charged on land, effeet on estate devised, 539. gift of, as charge on land, 541. ANNUITIES, payment of as condition, 623. rights and remedies of annuitant, 624. ANTE-NUPTIAL, agreements and settlements touching testamentary capacity of feme covert at common law, 150. settlement, to prevent revocation by law, 376. will, of woman, at common law, 372. APPEAL, as undue influence, 183. APPOINTMENT, of bastard under power to give to member of family, 454, n. 34. of executor merely, a will, 68. of guardian alone, not a will, 68. of guardians, by will under statute, 68. power of, to children, restricting meaning of "dying without issue," 644. to defeat gift over, strictly executed, 603, n. APPEAISEMENT, of devised lands, provisions in will for, 720. APPURTENANCES, pass under term land, 505. 560 INDEX. [figures refer to sections; n means note.] ARGUMENT, as undue influence, 183, n. 21. ARRIVALS, as affecting personalty described by location, 518. ARTIFICIAL PERSONS, may take by mil, 193. ASSIGNMENT, validity of provision preventing, 605-610. "ASSIGN TO," affecting vesting, 590. ASSIGNS, devise to a man and his, 539. ASSUMING CHAEACTEE, as fraud avoiding gift, 170. ASSUMPSIT, by one defrauded of legacy against one inducing revocation, 17S. ASYLUMS, created after testator's death, right to take under gift, 468, n. 91. "AT," showing definite failure of issue, 649. "AT THEIR DEATHS," construed, 577. ATTAINDERS, 141, 142. as incapacitating one to receive under will, 194. ATTESTATION CLAUSE, advantages of, 288. form for, 288. precautions as to, 252. signature after, 257, 259. unnecessary, 287, and n. 37. ATTESTATION OF WILLS, chap. IX, part B, e. ATTESTING WITNESSES, capacity to take gift, 204-9. ATTORNEY, declarations of, concerning lost will, 337, n. 62. gift to, as indicating undue influence, 191. AUTHORITY, ' to destroy will of another, 364, 365. BABYLONIAN WILLS, 12. BANISHMENT, of husband affecting testamentary capacity of wife, 147. BANK, money in, given causa mortis, 28, 29. BANK CHECK, as gift causa mortis, 28, 29. BANK DEPOSITS, as money under gift, 499. INDEX 561 [figures refer to sections; n MEAN? note.] BANKRUPTCY, devise over on, 542. BARGAIN, to provide or pay by will, 51-7. BASE FEE, with power of disposal, validity of gift over, 547, 548. BASTARD, legitimation of, as revocation, 385. BASTARDS, included under statutes to avoid lapse, 674. not included in gift to children, 442. not included in gift to issue, 445. not included in gift to brothers, &c., 444. "BEHIND HIM," showing definite failure of issue, 648. BEING, child in, for purpose of disinheriting, 385. unborn child in, to take gift, 477. BELIEF, revocation owing to mistaken, 329. BELIEFS, gifts induced by mistaken, 165. preposterous, as test of insanity, 125-129. BENEFICIAL GIFTS, only ones avoided by statutes against gifts to witnesses, 210. BENEFICIAL POWER, increasing estate of donee Of power, 536-8 543-8. BENEFICIARY, act of, preventing revocation, 326 BENEFICIARIES, changes affecting proportions to, as revocation, 389r delusions concerning, invalidate will, 136. devise to trustee for use of, 542. fraudulent acts by, to prevent revocation, 344. no claim under revoked will, 51. presumption as to destruction of later will by, under first, 337, n. 60. rules as to certainty of, chap. XIV, part 1. BENEFIT, as disqualification of witness, 310. BENEVOLENT SOCIETIES, as beneficiaries, 439. BEQUEATH, definition, 45. BEQUEST, of undefined estate with power of disposal, 537, remedy for failure to make promised, 56. 36 562 INDEX [figures refer to sections; n means note.] BEQUEST— continued. to alien, 213. to subscribing witnesses invalidating will, 205, 206. to subscribing witnesses in America, 208. validity of, determined by domicile of testator, 201. will speaks as of what time concerning, 523, 524. see Legacy. BEQUESTS FOB MASSES, 196. "BETWEEN," effect of word as to distribution, 489. in description meaning "through," 513, n. 4. BIBLE, dominion of man over earth, 2. wills mentioned in, 11. BILL IN EQUITY, to reform will, 166. to enforce contract to devise, &c, 57. to get construction of will, 168. to subject property to trust created by promise made to testator, 173. to avoid decree probating will, 167. BILL OP EXCHANGE, as a will, 60. BILL OF SALE, as a will, 60. BIRTH OF CHILD, as revocation by law, chap. X, part 2 D. after testator died, when included, 467-477. BIBTH OF ISSUE, as revocation of man's will, at common law, 375-377. change in laws as to revocation by, 406. revoking will, 373. BLANKS, in wills, filling by parol, 160, 438, 439, 440, 515, 516. BLIND PEESONS, attempting to revoke by destruction, fraud on, 344. capable of making wills, 114. undue influence and fraud on, not presumed, 174, 190. in presence of, required of witnesses signing will, 305. wills of, need not be read to witnesses, 276. BLOOD RELATIONS, 455. BODY, disposing of, by will, 68. " BONA FIDE PUECHASEB, takes subject to charge, 624, 756. BOND, what required of life tenant in personalty, 534. INDEX. 563 [figures refer to sections; n means note.] BONDS, gift of, causa mortis, 28. gift of, whether specific, 705, n. BOOKS, of testator, entries in showing satisfaction of legacy, 719. when included in gift, 498. BOEN, at what time included in class, 467-477. or to be born means, 468, n. 91. BOBOUGH, English, devise in, 92. BOEBOWED MONEY, deducting from legacy, 735-8, 715-720. charging devise with, 738, n. 80. bequests of to debtor, 523, n. 51. BOUNDARIES, force of descriptions by, 511. BOX, gift of contents of by delivery of key, 27. BEEACH, of conditions, what constitutes, 603-4. of conditions, effect of, 595-602. of conditions, necessity and right of entry for, 599. BEEACH OF CONTEACT, to devise, &c, 51-57. BEOTHEES, who take under term, 444. BUILDINGS, gifts of include land, 506. what pass by gift of lands, 506. BURDEN OF PROOF, as to mental capacity, 131. as to intention not to provide for child, 163. as to fraud in procuring will, 174. as to undue influence, 189. as to execution of will, 257, 250, 246, 288, 307. as to competence of witnesses, 312. as to revocation, 356, 345, 357. as to lost wills, 333, 356, 357. as to spoliation, 357, n. 37. as to revocation by subsequent deed, 368, n. 83. BUEGAGES DEVISABLE, 92. BUEIAL, &c, directions concerning, as will, 68. BURNING. See Destructive Act. what is sufficient to revoke, 350. BUSINESS CAPACITY, as compared with capacity to make will, 112. 564 INDEX. [figures refer to sections; n means note.] CALCULATION, of interest, &c, as to advances, 720. as to number of beneficiaries, effect of erroneous, 481. as to result of provision, effect of erroneous, 422. CANCELLATION, of legatee's note on set-off against legacy, 738. CANCELLING. See Destructive Act. what is sufficient, 352. CANON LAW, meaning of testament in, 47. CAPACITY, testamentary, affected by insanity, 132. testamentary, essential to nuncupative will, 225. testamentary, in lucid intervals, 134. testamentary, what insane delusions destroy, 135, and n. 58. testamentary, where delusions concerning beneficiaries, 136. to make gift causa mortis, 34. to make will, chap. VI. to make will, comparison of limitations on, 105. to make will, general statement, 103. to make will, test of strength required, 111. CAPITA, gifts divided per, 446, 483-9. CASH, gifts of, what passes, 499. CAUSA MORTIS, gifts, chap. II. gifts, definition, 15. CELIBACY, t conditions requiring, validity and construction, 611-614. CERTAINTY, as to donee, 195. as to property given, 515-6, 506-514. in amount of legacy necessary to its ademption by payment, 731. of conditions as to reforming and becoming a man, 627. CERTAINTY OF DESIGNATION, of beneficiaries, rules as to, chap. XIV, part 1. CERTIFICATE, by subscribing witnesses of due execution, 287-8. CHANGE, in law before death of testator, chap. XII, part 1 B. in laws after death of testator, 400. in laws before death of testator, 401-407. CHANGE OF MIND, as to revocation of will, 347. CHANGES IN CIRCUMSTANCES, as revocation by law, chap. X, part 2 E. INDEX. 565 [figures refer to sections; n means note.] CHANGING WORDS, in construing will, 421, 682, n. CHARACTER, affecting competency of witnesses, 310. beneficiary assuming false, 170, n. 81. reform of as a condition, 627. CHARGE, preventing lapse by death of one, 478, n. 73. effect to make gift fee, 539. remedies of person entitled to, 756, 624. affected by lapse of devise, 669. of legacies on land, &c, 748-756. on land, 541. on land not revoked by revoking devise, 369, n. 88. personal liability of devisee to pay, 624, 756. CHARITABLE TRUSTS, to uphold gifts to unincorporated societies, 439. CHARITABLE USE, gift to, how affected by re-execution within thirty days, 397. CHARITIES, greater uncertainty allowed in bequests to, 195, 439. statutes preventing devise of too much to, 199. CHARITY, gifts to, made within a month of death, 328. gift to, sometimes saved by cy pres doctrine, 438. CHATTELS, gifts of include after acquired, 524. gifts for life and then over to another, 530-8. real, treated as personal property, disposable by will, 86. what pass by description. See head of chapter XV. CHECK, gifts causa mortis by, 28-30. CHILD. See Children. birth of, as revocation by law, chap. X, part 2 B. oldest, youngest, other, &c, who are, 466. CHILD EN VENTRE, when excluded, 482. CHILDREN, born after testator's death as "survivors," 661. disinherited, take in intestate property, 497. en ventre, gifts to, 477. gift to, limited to legitimate, 415. hatred of, as evidence of insanity, 122. influence of, as undue, 178. meant by issue following gift to, 641. need not be mentioned in will, 102, 381-7. omission of, presumed to be unintentional, 102. omission of provision for, 161-164. 566 INDEX. [figures refer to sections; n mlans note.] CHILDREN— continued. posthumous, rights of, 102. postponed gifts to, who take, 473, 474, 475. right of, to homestead, 101. rights in property, 99-102. rights of, in personalty at common law, 100. rights of pretermitted, 102. rights of, preventing disposition of property, 90. statutes on disinheritance of, 101. what is provision for, 386, 162. where property left to one and his, 552-555. remainder to after life estate to parent, 555, 539, n. 29. who are, 162, 442. who take under term, 442. CHINA AND TABLEWARE, included in what gifts, 498. CHOSE IN ACTION, legacy of, 85. as gifts causa mortis, 28. suits brought in name of executor in bequests of, 85. whether passing under gift of contents of house, 517. CHRISTIAN SCIENCE, belief in, as test of insanity, 128. CHRISTOPHER V. CHRISTOPHER, doctrine of, 375. CIRCUMSTANCES, changes in, as revocation by law, chap. X, part 2 E. to prove intent to revive prior revoked will, 362, and n. 68. CIRCUMSTANTIAL EVIDENCE, to prove undue influence, 190. CITIES, capacity to take by will, 200. CIVIL DEATH, as incapacitating one to receive under will, 194. CIVIL LAW, as to revocation of gifts causa mortis, 41. as to when class closes, 469, n. 96. constraints upon making wills, 138. meaning of testament in, 47. as to impossible conditions, 596, n. 3. time of closing class, 469, n. 95. CLAIMS, bequests, &c, on condition of not presenting, 625. CLASS, where defined by testator, 441. CLASSES, gifts to, no lapse by death of member, 479. statement of number in gifts to, 481. INDEX. 567 [figures refer to sections; n means note.] CLASSES— continued. included under statutes to avoid lapse, 676. whether take per capita or per stirpes, 481-9. who take under gifts to, 467-482. vesting of gifts to, 478. reduction of all by advances to one, 719. CLEAB, restriction required to reduce clear gift, 494, 546. CODICIL, as revoking prior will, 336, and n. 56. construction of, 419, 423. definition, 48. destruction of, as revocation of will, 346, and n. 91. effect of on will incompetent at time of making, 107. effect of on satisfied legacy, 727. effect on time at which will speaks at common* law, 525. republication and re-execution by reference in, 392, 395. revocation by, chap. X, part 1 A. d. statute of frauds as to revocation by, 322. CODICILS, dangerous, 252. COEECION, as undue influence, 175. effect of on wills, 50. COHABITATION, influenced by unlawful, not undue, 182. of husband and wife, conditions restraining, 212, n. 96. COLLATEKAL KINDEED, how they take, 486, 488. COMMANDS, as undue influence, 183. COMMITTING, to writing, of nuncupative will, 237. COMMON, parent and children as tenants in common, 554. lapse of gifts to tenants in, 478-9. tenants in, do not take share of one dying, 479. COMMON EECOVEEY, suffered by testator revoking devise, 368, n. 84. to bar entail, 93. to bar remainder on estate tail, 635. COMPENSATION, gifts on, abatement of, 743. gifts on, revocation of and agreements for on, 51-7. COMPETENCY, of beneficiaries as witnesses, 204-210. of evidence, see "Evidence." of testator, change in laws as to, 405. 568 INDEX. [ficttees kefer to sections; n means note.] COMPETENCY— continued. of witnesses to written will, 309-318. of witnesses, chap. IX. part B. i., 309-318. of witnesses to oral will, 230. to take gift, chapter "VIII. to make will, chapter VI. COMPUTATION, of interest on advances in ademption, 720. of shares, 483-9. CONCEALMENT, by beneficiary as fraud avoiding gift, 170. of will, death of testator, &c, as evidence of fraud and undue influ- ence, 187. CONDITIONS, estates upon, chapter XIX. as to residence, 626. as to name, 628. as to religion, 629. as to reform of donee, 627. as to claiming dues from testator's estate, 625. kinds, and effect of each, in general, 594-602. construction of, in general, 603-4. necessity and right of entry for breach, 599. distinguished from limitations, 600. in restraint of alienation, 605-610. in restraint of marriage, 612-4. in restraint of contesting will, 615-622. in gift tending to separate husband and wife, 212 and n. 96. or inducement to making of will, a matter of intention, 65 and n. 60. touching whole will, how proved, 66. CONDITIONAL LIMITATIONS, defined and distinguished from conditions, 600-2. bankruptcy, levy, and alienation as, 605-610. marriage as, 613. contesting will as, 621. CONDITIONAL EEVOCATION, of will, 330. CONDITIONAL WILL, not favored, 65. probate, 67. valid, 63. when not allowed, 67. CONDUCT, of person whose sanity is questioned, 124. of accused as evidence of undue influence, 187. amounting to request to sign for testator, &c, 267, 232, 233. CONFIDENCE, in wife, as undue influence, 177. INDEX. 569 [figures refer to sections j n means note.] CONFIDENTIAL ADVISEES, as witnesses, 317 and n. 44. CONFIDENTIAL AGENT, gift to, as indicating undue influence, 191. CONFIDENTIAL EELATIONS, as indicating undue influence, 191. CONFLICT OF LAWS, concerning -wills, chapter XII. CONFLICTING DESCEIPTIONS, 507-512. CONSENT, of husband to wife's willing her personal property, 144. of testator to signing by another, 267. of guardian to marriage as valid condition, 612. CONSEQUENCES, testator 's mistakes as to, do not change effect of will, 165, 422. CONSIDEEATION, does not invalidate wills, 51a. for joint wills, 72. for legacy preventing equal abatement, 743. for promise to will, 54. CONSISTENCY, of wills, 332. i CONSTITUTIONAL LAW, laws cannot be applied to wills of testators dead before passage, 400. right to tax inheritance, &c, 8. CONSTEAINTS, error, fraud, and undue influence, chapter VEL legal, upon making will, chapter VI, part 4. may vitiate will, 103. what constitutes, 152. on alienation, €05-610. on marriage, 612-4. on contesting will, 615-622. see also conditions treated in chapter XTX . CONSTEUCTION, rules of, 403. of conditions, chapter XIX. as to beneficiaries and their proportionate shares, chapter XIV. as to property included, chapter XV. as to estate given, chapter XVT. of general devises, 503-505. of gifts in general, 491-498. of particular expressions, 498-502. of revoking clause, 331. of specific devises, 506. of same word differently as to personalty and realty affected by it, 648. 570 INDEX. [figures refer to sections; n means note.] CONSTRUCTION— continued. special rules of, chapter XIV. of wills, in general, chapter XIII. of will not determined by probate, 168. of will left to higher court, 67. CONTENTS, of will must be known to testator, 61. witnesses need not know, 275. CONTESTING WILL, conditions as to, 615-622. CONTEXT, to show meaning of word, heirs, 453. affecting meaning of words in general, 421. CONTINGENCY, dying without issue, &c, as, 630-649. simple death as, 650-2. coupled with death, 653-6. CONTINGENT, when gift to class remains, 479. CONTINGENT ESTATES, when devisable, &c, 478, n. 73. CONTINGENT INTERESTS, rules as to vesting, chapter XVIII. legality and construction of conditions, chapter Xl% . devise of, 80. CONTRACT, cannot be probated, 51a and n. 9. distinguished from wills, 51, 51a. held to be will, 60. including will, 51a. of marriage settlement, 379-380. antinuptial preventing revocation by marriage, 380. suit on, despite revoking will, 52, n. 14. to convey, in equity, 368. to make will, when necessarily in writing, 55. to make wills, 50, n. 7. to make wills, 72. to make wills, remedies for breach, 56, 57. to will, effect on title, 53. to will, essentials, 54. to will, how effected by public policy, 53. to will, must have consideration, 54. CONTRIBUTION, required of, given his own note as legacy, 738. CONTROL, which amounts to undue influence, 175-191. CONVEY, contract to, in equity as revocation, 368. INDEX. 571 [FIGTJKES REFER TO SECTIONS; n MEANS NOTE.] CONVEYANCE, of after-acquired land, modern statutes on, 371. what, not a revocation, 369. statutes as to revocation by, 371. CONVEYING TO USES, 94. CONVICT, as incapacitated to take under will, 194 and n. 5, 6. as witness to will, 310. COBPOEATIONS, capacity of foreign, to take under will, 201. lapse of gift to, by dissolution, 668. American disabling statutes as to, taking by will, 199. as trustees, 202, 203. cannot make wills, 104. laws as to capacity of, to take under will, 197-203. public, capacity to take under will, 200. as donees, certainty of designation required, &c, 436, 439. COEPSE, disposing of, by will, 68. COEEECTION, of errors in will, by parol, 152-168, 436-9, 513-6. re-execution of will to make, 393-4. COEEUPTION OF BLOOD, under attainder, 194. COUSINS, postponed gifts to, 473, 474, 475. who take under term, 444. COUNTY, capacity to take by will, 200. COVEETUEE, execution of will by woman under, 318. preventing woman making will, 144-151. CEEDIBLE, meaning as to witness to will, 310. who are as witnesses to wills, 310-318. donees under will not, 205-210. CEEDITOES, rights of, preventing disposition of property, 90. property devised in trust to keep from, 542. rights of, against estate as influenced by statute, 98. rights of, against personalty of deceased, 97. as legatees, rights of, 739-740. claims of, against lands of testator, 96. cannot reach interest of donee of mere beneficial power, 609. n. 31. as witnesses to will, 204-8. may defeat gifts causa mortis, 42. CEEED, conditions as to, 629. 572 INDEX. ' [figures refer to sections; n means not*.] CREMATION, will directing effect, 68. CEIME, as disqualification of witness, 310 and n. 22. as disqualification to make will, 141. as disqualification to take by will, 194. CROPS, growing crops pass under term land, 505. treated as personal property, disposable by will, 86. CUMULATIVE LEGACIES, rules to determine and incidents of, 697-702. CURTESY, does not enable spouse to take as heir, 450. not defeated by anti-nuptial will, 378, n. 5. right to, cannot be divested, 99. CUSTODY, of will affecting presumption of loss or destruction, 337, 356-7. CUSTOM, lands devisable by special, 92. CUTTING, to destroy will, 354, n. 16. CY PEES DOCTRINE, 438. CY PRES, doctrine of, 422. DATE, from which will speaks, 87. of will, 45, 262, 334. will speaks from, of republication, 397. DEAF PERSONS, capable of making wills, 114. DEAD, when will made, included under lapse statutes. 677. when will made, not included in class, 467. DEATH, as abandonment of property, 6. gifts causa mortis in peril of, 35. civil, as incapacitating to receive under will, 194. coupled with a contingency, construction of, 654-657. do wills speak from testator's, 523-529. lapse and substitution on, chapter XX. of member of class, 478, 479. of member of class, effect, 467-480. of testator, closes some classes, 470. of testator, effect on will of laws passed after, chapter XII, part 1 A. of testator, agreements to take effect upon, 73. of testator, willB affected by laws passed before, chapter XII, part lb. of testator, wills speak from, 87. signing after testator's, 291. index. 573 [figtjkes refer to sections; n means note.] DEATH— continued. provisions for survivorship on, 658-665. simple as a contingency, construction of, 650-2. ■without issue, &c, construction and effect of such provisions, 630- 649. testator presumed to refer to situation at time of his, 429. ■what constitutes peril of, 35 and n. 67. where class determined before, 467. DEBTS, abatement of legacies to pay, 741-7. conditions requiring payment of by donee, 623-4. condition requiring release of, 625. direction to pay, prevents satisfaction by legacy, 740. immatured, right of executor to have set-off, 738. lapse of legacies to pay or forgive, 668 n. legacy of to debtor not extinguish at once, 738. legacies in payment of not abate, 743. liability. of estate for, as influenced by statutes, 98. liability of personalty of deceased for, 97. order of abatement of legacies and devises to pay, 741-7. satisfied by legacies, and legacies satisfied by debts, 735-740. order to cancel not applicable to future, 523, n. 51. of testator, liability of his lands for, 96. passing by gift of all property in a place, 519. property liable for, 412.' requiring executor to pay rebuts presumption of satisfaction by legacy, 740. satisfied by legacy to debtor, 735-8. satisfied by legacy to creditor, 739-740. "DECEASED LEGATEE," construed, 461, n. 75. DECEPTION, effect of, practiced on testator, 170 and n. 81, 82. DECLAEATIONS OF TESTATOE, to prove undue influence, 187-8. to make nuncupative will, 232. to show fact and purpose of destroying will, 360. to prove intended satisfaction, 721. to prove intent to revoke by deed made, 371, n. 99. to prove fraud in procuring will, 174. of testator concerning revocation, 357, n. 30. DE DONIS, statute, 550. DEED, distinguished from will, 73. held to be a will, 60. revocation of will by, 368-371. of land in satisfaction of devise or legacy, 728-9. 574 INDEX. [nOTJEES REFER TO SECTIONS; n MEANS NOTE.] DEED — continued. of partition, not revocation, 369. to take effect after death, 24. DEFAMATION, of person by which gift is procured or prevented, effect, 171, 273. DEFAULT OF ISSUE, as condition in wills, 630-657. DEFAULT OF PEEFOEMANCE, of conditions effect, 596-599. DEFEATING WILL, by other causes than revocation, 319. by revocation, chapter X. DEFECTIVE WILL, is not such "other writing" as to revoke former will, 340. DEFICIENCY OF ASSETS, abatement in case of, 741-7. implying charge on lands, 751. DEFINITE, failure of issue, what is, 630. failure of issue, effect of gift over on, 631-2. description of property required, 515-6, 506-514. description of beneficiaries required, 436-441. DEFINITION, distinction between construction and, 417. bequeath, 45. codicil, 48. devisor, 45. devise, 45. devisee, 45. g^ft, 45. holographic wills, 48. intestate, 45. olographic wills, 48. testament, 46. testate, 45. testator, 45. testatrix, 45. will, 46. see also term for which definition is sought. DELIVEET, essential to gifts causa mortis, 26. of gifts causa mortis, 31. of legatee's note on set-off against legacy, 738. what essential to gifts causa mortis, 27 and note. DELUSION, as test of insanity, 125-129. concerning beneficiaries as affecting validity, 136. index. 57.5 [figures refer to sections; n means note.] DELUSION— continued. concerning persons prejudiced, 137. distinguished, 131. insane, distinguished from error, 132. insane, what, destroy testamentary capacity, 135 and n. 58. DEMENTIA, incapacity to make will, 110. DEMONSTRATIVE LEGACIES, abatement of, 745. ademption of by payment, 730. DENOUNCEMENT, producing undue influence, 180. DEPENDENT EEVOCATION, 359 and n. 49, 51, 55. DEPENDENTS, legacies to satisfied by subsequent gift, 723-734. DEPOSIT, ademption of gift of by drawing out, 518, 712 notes. in bank and safety vault, gifts of causa mortis, 27, 28-9. in bank passing by gift of money, 499. in chest, etc., passing by legacy of contents, 517. DEPRAVITY, does not incapacitate to make will, 121. DERANGED MENTAL ACTION, chapter VI, part 3, b. DERANGEMENT, effect on testamentary capacity, 132. DESCENDANTS, how lineal and collateral take, 486-488. under statutes as to lapse, meaning, 674. who take under term, 446. "DESCENDANTS NOW LIVING," includes, 467, n. 89. DESCENT, American statutes of, 378-380. English law of, 375, 378. law of, to determine heirs, 449. title by, 13, 448. DESCENT AND DISTRIBUTION, courts favor construction agreeable to rules of, 440. statutes of, wills favored which conform to, 430. DESCENT TO HEIR13, necessary incident of estate, 548. DESCRIPTIONS, conflicting, 507-512. good general, not vitiated by a false particular, 491. false, 513, 514, 516. 576 INDEX. [figures refer to sections; n means note.] DESCRIPTIONS— continued. fatally defective, 516. of beneficiaries, what sufficient, 436-441. of beneficiaries, construed, 442-461. of personal property by location, 517-519. refers to what time, chapter XIV, part 3. rules as to certainty of, 436, 437. what is sufficient, 515. DESIGNATION, rules as to certainty of, chapter XIV, part 1. DESK, gift of contents includes, 517. DESTROYING. See Destructive Act. what is sufficient, 354 and n. 16, 17. DESTRUCTION. See Destructive Act. of lost later will, 337 and n. 60. DESTRUCTIVE ACT, revocation by, chapter X, part 1 b, 342-365. DEVISABLE ESTATE, what is a, chapter V, part 1. DEVISEE, definition, 45. who may be a, chapter VIII. DEVISES, abatement to pay debts and legacies, 746-756. ademption of by sale of land, 368-371. ademption by satisfaction, 728. in satisfaction of debts, 740. by disseisee good, 81. by married women,' 145-151. cannot be of mere possibility, 80. construction of general, 503-505. construed to pass all estate in land which testator had, 540. definition, 45. not liable to ademption by satisfaction, 716. of after-acquired land, 88, 524-7. of contingent interests, 80. , of executory interests, 80. of income of land is devise of land, 541. of joint 'or undivided interests, 79. of land, what constitutes, 226. of mere equity, 84. of naked legal title, 83 and n. 15. of naked possession, 82. of possibility of reverter, 80, n. 9. of reversion expectant on the termination of an estate tail, 80, n. 9. of use and occupation of land, 542. INDEX. 577 [figures refer to sections; n means note.] DEVISES— continued. receipt for, not binding on devisee, 326, n. 21. remedy for failure to make promised, 57. specific, construction of, 506. to alien, 213. to subscribing witnesses in America, 208. to subscribing witnesses in England, 204-207. to trustee to permit beneficiary to use and occupy land, 542. who may take by, chapter VIII. will speaks as of what time concerning, 525-528. without words of perpetuity, 539-540. whether always specific for purpoBe of abatement, 704, 747. charged with legacies, 748-756. DEVISOR, definition, 45. DIRECTION, by testator to have will signed by another, 267 and n. 57, 59. DISABLING STATUTES, American, as to corporations taking, 199. DISABILITIES, destroying testamentary capacity, chapter VI. of witnesses to will, 204-8, 310-318. to take gift by will, chapter VIII, 436-9. DISCLAIMER, of immediate gift, acceleration of remainder, 576. DISCREPANCY, in descriptions of beneficiary, 436-9. in description of property given, 507-516. in laws governing will, chapter XII. DISCRETION, to trustees in spendthrift trusts renders property free from control of donee or creditors, 609. of trustees to postpone sale, rule against perpetuities, 610. destroyed by event before testator's death defeating gift, 627, n. 71. DISEASE, dying of different to complete causa mortis gift, 40. when destroy testamentary capacity, 115-137. bearing on undue influence, 176, 186. when it is " last sickness ' ' to sustain nuncupative will, 234. DISGUISE, obtaining gift by, as fraud, 170. DISINHERIT ANCE, of children, 102. of children, statutes on, 101. DISINTERESTED "WITNESS, who is, 310. 37 578 INDEX. [figures refer to sections; n means note.] DISINTEBESTED, who is to be witness to will, 204-8, 230, 309-317. will drawn by one who is, as to undue influence, 191. DISOBEDIENCE, as condition to defeat gift, 626, n. 70. DISOEDEES, affecting testamentary capacity, 109-137. DISPAEAGEMENT, of child as fraud, 171. of child as undue influence, ISO. DISPOSAL, base fee with power of, 547, 548. effect of estate, with power of, 543-548. power of, coupled with life estate, 536. DISPOSITION, as affected by necessity of paying debts of deceased, 96-98. essential to will, 58. of estates, modern trend of law in America on, 101-102. of lands under feudal restraints, 92-95. of personalty at common law, 100. of property, before feudalism, 91. of property, not always essential in will, 68. of property prevented by testator's obligations, chap. V, part 2. plan of, as affected by construction according to general intent, 422. reason for power of, 7. right of, absolute except as restricted by statute, 102. under will must be lawful, 49. DISPUTING, will, conditions as to, 615-622. DISQUALIFYING, interest of witness, 204-8, 230, 309-317. DISSEISEE, can make good devise, 81. DISSOLUTION, of corporation causing lapse, 668. DISTEIBUTEES, of personalty, 450. DISTEIBUTION, fixing survivorship on time of, 655, 660. class closing at time of, 473-7. time of determining vesting, 590. fairness of laws of, 101, n. 56 a, 57. per capita on per stirpes, 483-489. statute of, as to next of kin, 456. title by, 13. DIVESTING, provisions and conditions, effect and construction of, 584, 593, 603. INDEX. 579 [figures refer to sections; n means note.] DIVESTING CONDITIONS, construction in general, 591, 603. DIVISION, per capita, or per stirpes, 483-489. •when vests only on, 590. DIVORCE, as revoking will, 391. gifts and conditions inducing, 212n. mistake as to, avoiding gift, 165, 464-5. DOMICILE, change of, after making will of personalty, 405. law of, in disposing of personalty, 409. of testator, determining validity of bequest, 201. DONATIONS, mortis causa, chapted II. DONEES, certainty as to, 195, 438. what estates they take in the property, chap. XVI. words to describe, 439-461. when ascertained, 462-482. DOUBLE DESCRIPTIONS, 512. DOUBLE WILLS, 70. revocability, 72. time and manner of probating, 71. DOUBT, as to meaning of will, 415a. DOWER, does not enable spouse to take as heir, 450. legacies in lieu of not abate, 743. power of husband to sell land free from dower, 99, n. 49. power of sale in husband in time of Glanville, 99, n. 49. right to, cannot be diverted, 99. DRAFTSMAN, gifts to, as evidence of undue influence, 191. testifying to what testator ordered written, 160. DRUNKARD, donee becoming as condition, 628. DRUNKARDS, testamentary capacity of, 111. DUMB PERSONS, capable of making wills, 114. DUPLICATE, destruction of, 345 and n. 89. loss or mutilation of, as revocation, 356 and n. 28. wills executed in, containing revocation clauses, 334, n. 50. wills, effect of witness signing one, testator other, 297. DURATION, of estates given, 530-560. • 580 INDEX. [figures refer to sections; n means note.] DURESS, which invalidates will, 175-191. DWELLING, what passes by gift of, 506. condition in will as to occupancy of, 626. nuncupative will when made at, 235. DYING WITHOUT ISSUE, bequests over on validity, 634. devises over on, validity, 635. presumptions as to meaning, 637-649. expressions importing definite failure, 640-9. construction and effect of words as to, 630-650. statutes as to construction of, 639. ECCENTRICITY, distinguished from insanity, 120. EDUCATION, ademption of gift for by satisfaction, 722 n. as condition to taking gift, 603, 629. EFFECTS, construction of term, 502. EGYPTIAN WILLS, 12. EJUSDEM GENERIS, only included by general words following specific, 492. ELDEST, child, means what, 466. ELECTION, not to take causes acceleration of remainder, 576. of widow to take under will does not prevent her taking legal share of intestate property, 497. to take gift makes donee personally liable on charge, 539, 756. to take under will prevents contesting it, 616. to take gifts binds as to conditions, 625. widow's right of election, 101, n. 59. EMBLEM, as signing, 254. EMBLEMENTS, pass with land devised, 505. EMINENT DOMAIN, taking land by as ademption of devise, 711 note. taking land by to relieve it of charge, 756 notes. EMPLOYMENT, what is to entitle under gift to servant, 460. continuing as condition to gift, 603, n. 16. rendering incompetent as witness to will, 206, 210. ENACTMENT, of new laws, effect on will, chapter XII. END OF WILL, effect of testator not signing at, 257-8. INDEX. 58X [figures refer to sections; n means note.] END OP WILL— continued. what is signing by testator at, 259. witness to will signing at or not, effect, and what is, 295-7. ENTAIL, barred by common recovery, 93. See "Estates Tail." ENTREATY, as undue influence, 183. ENTRY, in testator's books as evidence of satisfaction of legacy, 719. right of whether a devisable interest, 80, n. 9. for breach of condition, necessary to divest, 599. who may make, 599. right of need not be expressly reserved, 624. ENUMERATION, accompanied by general words, 492. description for purpose of, 508-510. excludes implication, 493. ENVELOPE, burning as revocation of will, 344. contents, and indorsement on, as will, 60, n. 48. EN VENTRE SA MERE, gift to child, 477. EQUALLY, effect of word as to distribution, 489. EQUITABLE CONVERSION, as revocation of devise, 368. EQUITABLE ESTATE, passes under term land, 503. EQUITY, attitude of, on right of married women to devise, 150. interest in devisable, 84. enforced uses, 94. relief in, where revocation fraudulently prevented, 344. what conveyance not a revocation in, 369. will not reform on account of mistake, 166, 167. ERASURE, as a revocation of will by destructive act, 351, 358. ERROR, chapter VTI, part 1. as evidence of insanity, 131. distinguished from insane delusion, 132. rule as to correction of, after testator's death, 168. ESCHEAT, at common law in case of lands of alien, 140. ESCHEATS, defeat of by disposition, 92. 582 INDEX. [figures refer to sections; n means note.] ESCROW, as revocation of devise, 371, n. 99. to be delivered on death of grantor, validity, 24. ESSENTIALS, of re-execution, 393. for promise to will, 54. of will, disposition of property, 68. ESTATE, duration of determined, 530-561. when vests, in general, 580-591. kinds of future, and rules as to, 562-577. on conditions in general, 594-665. gift of my, includes what, 500. gift of my, passes fee, 539. expectant, devised to a class, 476. future, without intermediate estate, 73, n. 97. limits of, which may be bequeathed by oral will, 228. nature of, given in postponement to a class, 475, 476. of married women under modern statutes, 101. pur autre vie, made devisable by Statute of Frauds, 95. alteration of, as revocation, chapter X, part 2 A. administration of, 13. what, the donees will take in the property, chapter XVT. when devisable, chapter V, part 1. when devisable, general rule, 78. ESTATES, expectant, in general, 562-591. less than freehold, transmission of, 92. kinds of future, 562-575. vesting of future, 580-593. ESTATES TAIL, implied by gift over on dying without issue, 632-3, 642. Statute de Donis, 93. remainder after is vested, 635, n. 92. common recovery to bar remainder on, 635. created by gift to " A and his issue, ' ' 556. not implied by gift over on failure of ' ' such issue, ' ' 642, n. 6. barred by common recovery, 93. made fee by statute, effect on rule in Wild's case, 552. made fee, by statute, effect to limit ' ' dying without issue, ' ' 649, n. 25. effect of on devises, 93. ESTOPPEL, to contest will, having taken under it, 616. EVENT, in conditional wills, as affecting probate, 67. EVICTION, preventing devise, 81. INDEX. 583 [figures refer to sections; n means note.] EVIDENCE, parol to identify donee, 437-8. to identify property given, 513-6. to establish clause omitted or included by error, 157-160. as to declarations of testator in case of undue influence, 188. circumstantial, to establish undue influence, 190. competent to show intended satisfaction, 737. of satisfaction, testator's declaration as, 721. of wealth or poverty of beneficiaries or kin, 187, n. 30. parol proof of intention to forgive debt due from legatee, 737. parol, to establish will after its destruction, 205. to establish fraud, 174 and n. 4. to establish undue influence, 186, 187. parol proof of intent to satisfy debt by legacy, 739. to prove intention to make will, 62. when admissible to show intention, 66. See also "Parol Evidence" and "Declarations." EXCHANGE, revoked devise, 368, n. 84. EXCEPTION, creates implication, 493. EXCLUSION, by closing of class, rule of, 469. EXECUTION OF WILLS, ancient forms, 215-218. oral formalities of, 215-239. written formalities of, 240-318. as to lands, 243. form of writing, 244-252. as to signature of testator, 253-260T/ as to date and seal, 261-2. as to another signing for testator, 263-7. as to holographic, 268-271. as to attestation by witnesses, 268-285. as to signatures of witnesses, 286-300. as to presence of testator at, 301-7. as to number of witnesses, 308. as to competence of witnesses, 309-318, 204-9. change in law as to formalities of, 405. presumption that will was in same condition at time of, as when found after testator's death, 248, n. 86. competency of witnesses at time of, 311. EXECUTION, WRIT OF, levy under as valid condition subsequent or limitation, 608. beneficial power not liable to, 609, n. 31. EXECUTORS, competency of, as subscribing witnesses, 314 and n. 35, 36. 584 INDEX. [figures repek to sections; n means note.] EXECUTORS— continued. mere appointed of, a will, 68. gifts to charged with payment of legacies, 750. acts of not cause ademption, 712. suits brought in name of, in case of bequests of choses in action, 85. EXECUTORS AND ADMINISTRATORS, gifts to, 458. taking as representatives, 457. EXECUTORY BEQUESTS, after life estate valid, 533, 570. after gift without limitation, 537. affected by beneficial power to prior tenant, 536-7. over on failure of issue, effect, 634. rights of donee against prior taker, 534. after failure of issue, 635. of what may be left, 536. EXECUTORY DEVISE, defined, 573. incidents of, 570-2. in abridgment of fee valid, 572. after base fee and beneficent power validity, 547-8. over on dying without issue, validity, 631-2. cannot be defeated by first taker, 548. EXECUTORY INTERESTS, devise of, 80, 548. EXILE, capacity of wife of, to make will, 147. EXONERATION, of personalty from liability for debts and legacies, 748-756. EXPECTANCY, kinds of estates in, 562-577. EXPECTANT ESTATE, devised to a class, 476. • EXPRESSED MOTIVE, accomplished shows satisfaction of legacy, 722. EXPRESS REVOCATION, 327-334. EXPRESS WORDS, gift need not be in, 495. EXTINGUISHMENT, legacy of debt to debtor is not immediate, 738. EXTRINSIC FACTS, to show meaning of word heirs, 453. EXTRINSIC MATTERS, rules of construction as to relation between will and, 428-430. PACT, errors of, 153. FACTS, proof of in aid of construction, 428. index. 585 [FIGURES REFER TO SECTIONS; n MEANS NOTE.] FAILURE OP ISSUE, construction and effect of words importing, 630-649. definite and indefinite defined, 630. expression importing definite, 640-9. See also "Dying Without Issue." FAITH, conditions as to, 629. as evidence of insanity, 125-8. FALSE, statements inducing gift avoid it, 171. beliefs of testator do not avoid gift, 131, 165. descriptions, 513, 514, 516. FAMILY, gift to one and his includes, 554, n. 3. marriage into named as valid condition, 612. to one ' ' and his ' ' include, 476, n. 36. who take under term, 454. FARM, devise of includes what, 506. FATHER, . will of affected by birth of child, 384. FEAR, as undue influence, 175. FEE, base, with general power of disposal, 547, 548. estate tail turned to, 552. interest in, passes under term land, 503. life estate raised to a, by power of disposal, 544-548. statutes holding that, passes, 403. what necessary to pass, 539, 540. FEELINGS, of testator proved how to show under influence, 187. of testator accounting for strange acts, 118. FELONS, constraints upon, making wills, 141, 143. as witnesses to wills, 310. FEME SOLE, married women have powers of, under statutes, 373. FEOFFEE TO USES, 94. FEOFFMENT, livery of seisin essential to, 567. FEUDALISM, bequests and devises before, 91. doctrine of non-alienation, 92. effect of on devising by will, 92. FEUDAL OBSTRUCTIONS, to disposition of property, 90, 91. 586 INDEX. [figures refer to sections; n means note.] FEUDAL RESTRAINTS, on alienation, how removed, 95. FICTITIOUS NAME, signing of, 255 and n. 13. FIEST HEIR MALE, as donee, construed, 452. FIXTURES, pass under term land, 505. FLATTERY, as undue influence, 181. FLOWERS AND HOUSE PLANTS, included in gifts of what, 498, n. 42. FOEBIDDING, alienation nugatory, 605. FORCE, which makes gift obtained by it void, 175-191. FORECLOSURE, of mortgage as ademption of legacy, 711-2. right to not pass under devise, 503. FOREIGN CORPORATIONS, capacity to take under will, 201. FOREIGN WILLS, 331, n. 45. FORFEITURE, under attainder preventing felon's will operating, 194. by breach of condition in gift, 596-604. of devisee and bequests for felony, etc., 141-143. FORGETFULNESS, effect on testamentary capacity, 111. FORM, as evidence of intention to make will, 75. effect of, 75, n. 99. of attestation clause, 288. of signing by another, 265 and n. 51-54, 56. of wiU, 252. of witness ' signature, 298 and n. 73, 75. FORMALITIES, required in making wills, chap. IX. of execution, change in laws as to, 405. FOESE & HEMBLING'S CASE, doctrine of, 372. FRAUD, chap. VII, part 2. effect of, 170. essentials of, 171. examples of, 170 and n. 81, 82. in destruction of will, 337, n. 60. INDEX. 587 [figures refer to sections; n means note.] FEAUD— continued. in gifts causa mortis, 34, 43. jurisdiction to declare will void for, 172. nature of, 169. preventing revocation, 326, 344 and n. 82, 84. when will vitiated by, 171. See also "Statute of Frauds." FREEHOLD, estates less than, transmission of, 92. passes under term land, 503. FEEE SOCAGE TENURE, disposal of lands held in, allowed, 95. FEENCH CODE, mystic and holographic testaments, 48. FRIENDS, as beneficiaries, construed, 461, n. 75. FEOM, showing definite failure of issue, 649. FULL AGE, necessary for capacity to make will, 103. FUND, nature of gifts charged on particular, 707-8. ademption by failure or investment of, 711-2. ademption by gift of, 730. FURNITURE, construction of term, 498. FUTURE, children included in class, 473-7. wife or husband included in gift to wife, etc., 464-5. acquisitions pass by gift, 523-7. crops, treated as personal property, disposable by will, 86. estates, kinds of, 562-577. when vest, 580-591. estates, if transmissible to heirs pass under term land, 503. estates, without intermediate estate, 73, n. 97. FUTURITY, "WORDS OF, effect on vesting, 583. GARDEN, passes with gift of house, 506. GARDENEE, taking under gift to servant, 460. GAVELKIND, lands, disposition of under feudalism, 92. GENEEAL LEGACY, defined, 706. abatement of, 743. ademption of by satisfaction, 715-730. 588 INDEX. [FIGURES REFER TO SECTIONS; n MEANS NOTE.] GENERAL PRINCIPLES OF CONSTRUCTION, chap. XIII, part 2. GENERAL WORDS, meaning of, following an enumeration of things, 492. GESTURES, to establish wish of testator making, what sufficient, 233, 267. GIFT, words of absent affects vesting, 590. GIFT OF INCOME, of property, 541. GIFT OVER, cannot be defeated by act of first taker, 548, defeated by power of disposal added to life estate, 545-548. in personalty, 531-538. GIFTS, failing for uncertainty, 195. change in law as to validity of, before death of testator, 404. conditions in, tending to separate husband and wife, 212 and n. 96. conflicting, 507. as satisfaction of previous legacy, 715-734. clear, not defeated by later expressions less clear, 494. conflicting descriptions of same, 508-511. definition, 45. legacy of note to maker is not immediate, 734. need not be in express words, 495. not defeated by words purporting to pass larger estate than testator had, 539. to church where member a witness, 210. to husband or wife of witness, 209. what property is included in, chap. XV. what, sufficient provision for children, 386. rules as to certainty of designation of beneficiaries, chap. XIV, part 1. tending to immorality are void, 212. to alien, 213. to classes, description of, 467-482. to illegitimate children, 212. to individuals, description of, 463-466. to mistress of testator, 212. to one drawing will, 212. to witnesses, only beneficial, avoided by statutes, 210. what, affected by re-execution, 397. GIFTS CAUSA MORTIS, 13. acceptance presumed if beneficial, 32. because of peril of death, 36. cannot be revoked by will, 21. cannot defraud remaining spouse, 43. defeated by recovery, 40. definition, 15. INDEX. 589 [figures refer to sections ; n means- note.] GIFTS CAUSA MORTIS— continued. delivery, 31. delivery essential, 26. distinguished from transfers by succession, 21. essentials of validity, 34. gift must be intended, 19. how defeasible, 37-43. how revoked by donor, 39. how revoked under civil law, 41. must be accepted, 32. must be complete, 30. must be executed, 18. must be in peril of death, 35. must be made by owner, 33. must be of personalty, 23-24. must be voluntary, 17. must take effect at once, 20. no limit to amount, 25. no witnesses required, 26. no writing required, 26. not strictly testamentary, 16. of choses in action, 28. revocable, 16. revocable by law, 38. revoked by death of donee, 41. Bubject to claims of creditors, 42. subject to claims of widow and creditors, 22. testamentary capacity essential, 34. title passes at time of gift, 21. validity determined by law of place where made, 21. what delivery essential, 27 and note. where delivery insufficient, 29. when delivery sufficient, 28. GIFTS INTER VIVOS, 16. GOOD CONDUCT, as condition to gift, 627. GOODS, household construction of term, 498. GOVERN, what law will, the will, chap. XII. GOVERNMENT, can take by will, 193. GRAMMATICAL CONSTRUCTION, preferred, 427. GRANDCHILDREN, not comprehended in term children, 4.42. included in gift to family, 454. who takes under term, 443. 590 INDEX. [FIGURES REFER TO SECTIONS; n MEANS NOTE.] GKATITUDE, gifts induced by, undue influence, 183. GEEEK WILLS, 12. GUAEDIAN, gift to, presumption of undue influence, 191 and n. 58. mere appointment of in writing, not a will, 68. under statute, appointed by will, 68. HABITATION, death in, in case of nuncupative will, 235. HALF-BEOTHEBS, included in term Brothers, 444. HAMMTJEABI, code of, 12. HANDWRITING, " . wills all in testator's own, 268-271. holographic will must be completely in testator 's, 270 and n. 75. HATEED, as undue influence, 180. of children as evidence of insanity, 122. HEIE, can be deprived only by other disposition, 497. statutes making spouse, 378. HEIES, as purchasers under wills, 448-453. descent to, necessary incident to estate, 548. effect of use of, as word of limitation, 549-551. favored at law, 497. gift to, when determined, 468, 470. necessity of word, to pass fee, 539, 540. not to be disinherited except by express gift or clear implication, 496, 497. postponed gifts to, who included, 470. postponed gift where, is also particular tenant, who take, 471. rights of, on death of ancestor, a member of a class, 478, 479. take per stirpes, 485. of the body, effect of words as limitation, 550. HEEEAETEE, born included, 473-7. wife included, 464-5. acquisitions pass, 423-7. HERIOT, 91. HISTOEY, of property transfers, 9-12. of wills, chap. I. HOLOGRAPHIC TESTAMENT, derived from Erench and Spanish codes, 48. INDEX. 591 [figures refer to sections; n means note.] HOLOGRAPHIC WILLS, 268-271. definition, 48. revocation by, 339 and n. 66. HOME, death at, in case of nuncupative will, 235. gift for when requiring occupation, 626. requirement to provide construed, 602, n. 16. HOMESTEAD, gift of includes, what, 506. rights of surviving spouse or children, 101. HOUSE, gift of includes what, 506. what comprehended in gift of contents of, 517, 518. HOUSEHOLD GOODS, construction of term, 498. HOUSE-KEEPER, gift to, presumption of undue influence, 191. HOWE V. EAEL OF DARTMOUTH, rule in, 534. HUSBAND AND WIFE, gift to husband as ademption of legacy to wife, 732. HUSBAND, as witness to wife's will, 318 and n. 46, 47. condition in gifts tending to separate wife from, 212 and n. 96. of witness, gift to, 209. rights of at common law, 372. second marriage of as condition, 612. gift to including future, 464-5. gift to, of unmarried woman, 465. IDENTIFICATION, description for purpose of, 508-510. IDENTITY, loss of causing ademption, 712. of instrument, correction of errors in, 155. of instrument, errors as to, 154. IDIOCY, as disqualification of witness, 310. incapacity to make will, 109. IF, of age, married, etc., as to vesting of estate, 585. IGNORANCE OF TESTATOR, as to legal effect of provision, effect, 422. as to facts, effect on gift, 165. as to contents of will, effect, 153-9, 61. of beneficiary as excuse for breach of condition, 628. ILLEGAL CONDITIONS AND PROVISIONS, effect, 602. 592 INDEX. [figures refer tv» sections; n means note.]. ILLEGAL, effect not presumed, 426. objects of gifts, 211-3. ILLEGALITY, of gift in revoking will, 328. ILLEGITIMATE CHILDREN, gifts to, 212. inherit in Iowa, 381. included in gift to family, 454, n. 34, 39. not comprehended in term children, 442. ILLEGITIMATE ISSUE, not usually included in term Issue, 445. ILLEGITIMATE RELATIONS, when they take, 444. ILLICIT RELATIONS, as raising presumption of undue influence, 189. as undue influence, 182. ILLITERATE TESTATORS, fraud in procuring wills from, 170, 276. ILLNESS, what is last, for oral wills, 234. enabling gifts causa mortis, 35. IMBECILITY, which avoids testamentary capacity, 109-114. IMMEDIATE GIFT, to class, 468. IMMORALITY, gifts tending to, void, 212. IMPLICATION, of estates tail by gift over on death without issue, 632-3, 642. gifts by in general, 495-7. IMPLIED REVOCATION, 327, 335-338. IMPORTUNITY, as undue influence, 183. IMPOSSIBILITY, of performance of conditions, effect, 596. IMPROVEMENT, as ground for individual ownership, 3. INCAPACITY, to make wills contrasted with incapacity to receive under wills, 193. INCOME, gift of, 541. of personalty, bequeathes principal unless limited, 530. INCOMPETENCE, of member of a class, 480. witnesses to will, who are, 309-318. INCOMPETENT WILL, effect of codicil or republication, 107. INDEX. 593 [figures refer to sections; n means note.] INCONSISTENCY, in provisions of later will as revocation, 336 and n. 56. of lost later will, 337 and n. 60-62. INCONSISTENT, later will not presumed to be, 337. INCORPORATING, alterations and additions by republishing, 396. INCORPORATION, of donee after death of testator, 439. into will by reference, 249-251. INCUMBRANCE, as affecting devise, 371. INDEFINITE, failure of issue, what is, 630. when intended, 637-649. effect on gift over on, 634-5. description of donees, effect, 437-9. description of property, 515-6. INDIVIDUAL NAMED, marriage to as condition, 612. INDIVIDUALS, gifts to, 463-466. question of proportions, where gift to, 483. INDIVIDUAL OWNERSHIP, foundation of, 3. objections to, 4. prehistoric origin, 10. INDORSEMENT, as will, 60, by one signing for another, 265 and n. 54, 56. INDUCEMENT, mistake of, cannot be remedied, 162. of legacy expressed, proves satisfaction, 722. or condition, a matter of intention, 65 and n. 60. INFAMY, as disqualification of witness, 310 and n. 22. INFANTS, as witnesses to wills, 316. power to make will, 106-107. can take by will, 193. INFLUENCE, what avoids will when exerted on testator, 175-191. INFORMAL WRITINGS, as wills, 58-60. INHERITANCE, among Hebrews, 11. prehistoric origin of, 10. 38 594 INDEX. [figures refer to sections; n means note.] INHERITANCE— continued. words of unnecessary to devise of fee, 539-541. bequest without, 530. INHERITING, not matter of right, 8. INITIALS, as signing, 255 and n. 10. INJUNCTION, to prevent violation of contract to devise, 57. to restrain collection of legacy till debt due from legatee to testator matures, 738. INOPERATIVE WILL, revoking former will, 338 and n. 64. INSANE DELUSION, distinguished from error, 132. INSANE DELUSIONS, concerning person prejudiced, 137. what, destroy testamentary capacity, 135 and n. 58. INSANE PERSONS, can take by will, 193, INSANITY, chap. VI, part 3. as revoking prior will, 389. destruction of will during, 355. destruction of will while suffering from, 328. effect on testamentary capacity, 133. INSTRUMENT, what form of may be will, 58-60. incorporation of in will by reference, 249-251. INSURANCE, bequest of right to, 85. INTELLIGENCE, required to make will, 111. INTENTION, as to holographic wills, 269. declarations of testator to prove, to revoke, 360. essential in fraud, 171. testamentary, essential to nuncupative will, 225. to determine whether will or deed, 74. witness signing with, 294 and n. 49a, 50, 54. act without, to revoke, 355 and n. 18. alone needed to establish residuary clause, 520. as to after-acquired personalty, 87. as to after-acquired realty, 88. ' essential to a will, 60, n. 52. must appear to limit estate in personalty to life, 535. must be to constitute will, 58. INDEX. 595 [figures refer to sections; n means note.] INTENTION— continued. necessary to make signing sufficient, 256 and n. 19, 22. of legislature in change in laws before death of testator, 402. of testator in devise of lands, 526, 527. of testator to govern, 413. presumption as to, where writing is in pencil, 246, n. 82. qualification in description disregarded where, is shown, 510. rules governing where, is doubtful, 414 et seq. to be gathered from whole will, 419-422. to destroy without destruction, 343 and n. 80. to give sufficient without express words of gift, 495. to govern in matter of revocation where after-acquirod land is con- veyed, 371. to make provision for children, 387. to make will, evidence to prove, 62. to make will, statements of, 59 and n. 44, 45. to omit children, proof of, 163 and n. 60-64. to republish, 395. to revive prior revoked will, 361, 362 and n. 68, 69. to revoke, 330 and n. 40. shown by circumstances, 75. writing showing, to revoke not sufficient, 326. INTEREST, as disqualifiation for witness, 310. as a disqualification to testify at common law, 204. what, sufficient to make witness incompetent, 313. payable on note given maker as legacy, 734. when to be reckoned on advances to legatees, 720. INTERFERENCE, with revocation, 348. INTERMEDIATE DISPOSITION, effect on vesting of future estate, 589. INTERMEDIATE ESTATE, not essential to future estate, 73, n. 97. INTERPRETATION, change in laws as to, of language of will, 403. of wills, chap. XIII. INTER VIVOS, distinction between transactions, and wills, 191. INTESTACY, courts will try to avoid, 492, 496. estate distributed as in, where will revoked by birth of child, 382. estate distributed as in, where will revoked by marriage of man, 378- 380. plain words cannot be disregarded to avoid, 508. reason for rules of, 7. definition, 45. . personalty first fund for all claims, 741. 596 INDEX. [figures refer to sections; n means note.] INTESTATE LAWS, fairness of, 101, n. 56a, 57. where provision made to those who would take under the, 459. INTESTATE PEOPEETT, how disposed of, 450. must be distributed by law, 497. INTESTATE SUCCESSION, 13, theory of, 6. INTOXICATION, effect on testamentary capacity, 111. INVENTOEY, required of life tenant in personalty, 534. IEEECONCILABLE, where clauses, 425. ISSUE, as a word of limitation, 556-561. who take under term, 445. restricted by association with words "child" or "children," 641, n. 3. confined to children by referential construction, 640-3. gifts to one and his issue gives what estate, 556-561. dying without, construction and effect, 632-649. birth of, as revocation of man's will, at common law, 375-377. provision for, to prevent revocation by law, 376. birth of, revoking will, 373. change in laws as to revocation by birth of, 406. JEWELEY, what gift includes, 498. JOINT INTEEESTS, cannot be devised, 79. JOINT LEGACIES, effect of one legatee violating condition, 625, n. 64. JOINT TENANCY, of members of class - , 479. JOINT TENANTS, children and parents as, 554. effect of abolishing survivorship, as to lapse, 479, n. 74. JOINT WILLS, 70. revocability, 72. time and manner of probating, 71. JUDGMENT, of probate, how avoided, 172. of probate, effect on right of pretermitted child, 167. . of probate, effect on construction, 167. JUDGE OF PEOBATE, as subscribing witness, 315. JUDICIAL SALE, effect to free land from charge, 756. index s 597 [figures refer to sections; n means note.] JURISDICTION, to declare will void for fraud, 172. JUSTICE OF WILL, as evidence of sanity, 123. KEY, delivery of as delivery of contents in gift causa mortis, 27. KILLING, .testator to get gift, 211. KIN, next of, postponed gift to, 470. next of, who take under term, 456. KINDNESS, as undue influence, 179. KNIGHT SERVICE TENURE, disposition of lands in, 95. KNOWLEDGE, of contents of will by witnesses, 275. of contents of will essential, 61. of contents of will presumed, 61. of testator as to contents of will, 245. of testator need not be known by witnesses, 276. LAND, acquired after will, at common law, 368. charged with payment of legacies, 748-756. claims of creditors of testator against, 96. after-acquired, conveyance of, as revocation, 368-370. after-acquired, conveyance of under modern statutes, 371. after-aequired, devise of, 88. age necessary to make will disposing of, 107. naked legal title devisable, 83 and n. 15. possession devisable, 82. devise of governed by what law, 408. power of married woman to dispose of, by will at common law, 145. rights of alien in, in U. S., 140. right of person contracting to purchase, devisable, 84. Statute of Frauds in regard to devising, 240, 241. the law of what place governs a will disposing of, 408. what estates in, pass to devisees, chap. XVI, part 1 B. what estates included in term, 503. what included in specific devise of, 506. what is, under Statute of Frauds, 243. what passes as part of, 505. wife's, at common law, 372. will speaks as of what time concerning devise of, 525-528. LAND SUBJECT TO POWER, disposal of by will, 504. LANGUAGE, change in laws as to interpretation of, 403. 598 INDEX [figures refer to sections; n means note.] LANGUAGE— continued. in which will written not understood by testator, 245. will, in foreign, translation, interpretation and probate of, 245. how to be interpreted, 428. LAPSE, common law doctrine of, 666-672. statutes to avoid, 673-8. testamentary substitution providing for, 680-695. of residue, 671-2. disposition of gifts on, 666. by death of one of class or joint or common tenants, 479-480. statutes to avoid, 403. of devise or legacy, 319. LAST SICKNESS, in nuncupative wills, 234. LATER WILL, destruction or loss of, 337 and n. 60-62. implied revocation, 335. presumption as to revoking, 333. LAW, errors of, 153. imperative rules of, 412. of Moses, 11. revocation of wills by operation of, chap. X, part 2. what, governs the will, chap. XII. LAWFUL, wills must be, 49. LEAD PENCIL, writing will in, valid, 246. writing or signing in, presumption of finality, 247, n. 82. LEASE, not act of revocation, 369. "LEAVING ISSUE," to show definite failure, 648. LEGACY, contract to provide, need not be in writing, 55. ademption by sale or destruction, 709-714. ademption of by satisfaction, 715-734. satisfaction of debts by and in satisfaction of debts, 735-740. lapse of and provisions to prevent, 666-702. nature of estate as to duration, 530-538. as to what property included, chap. XV. charged on land not revoked by sale of land, 369, n. 88. LEGACIES, include after-acquired property, 523-4. general, specific and demonstrative defined, 703-8. cumulative, when, 697. INDEX. 599 [figures refer to sections; n means note.] LEGACIES — continued. additional, incidents of, 701. substitutional as to donees, 680-702. abatement of, 741-747. charged on land, &c, 748-756. specific not adeemed by subsequent gift, 730. of chose in action, 85. of debt to debtor not an extinguishment, 738. of right to insurance, 85. residuary include what, 521. to one in confidential relation as indicating undue influence, 191. under Statute of Frauds, 55. who may take a, chap. "VIII. LEGAL ESTATE, passes under term land, 503. LEGALITY, of condition, 594-629. LEGAL REPRESENTATIVES, Who take under gift to, 457-8. LEGAL TITLE, naked, devisable, 83 and n. 15. "LEGATEE," construed, 461, n. 75. as donee includes, 461, n. 75. who may be a, chap. VIII. LEGISLATIVE POWER, to affect wills by laws passed after death of testator, 400. to affect will by laws passed before death of testator, 401. LEGISLATURE, cannot cure defect in identity of will, 155. LEGITIMATION, of bastard child as revocation, 385. LETTERS, as wills, 269, n. 66. held to be wills, 60 and n. 49, 51. of testator to prove undue influence, 187. LEVY, as condition or limitation, 608. LIBRARY, passes under what gift, 498. LICENSE TO USE LAND, devise to trustee to secure to beneficiary the, 542. LIABILITY, of devisee to pay charge, 539, 756. LIEN, of legatee on land for payment of legacy, 756. LIFE ESTATE, how affected by addition of power of disposal, 536. 600 INDEX. [figures refer to sections; n MEANS note.] LIFE ESTATE— continued. passes under term land, 503. power to limit estate over after, in personalty, 533. with power of disposal, 543-548. LIFE INSUEANCE, passes under gift of "estate," 500, n. 49. on testator's life, may be bequeathed, 85. LIFE TENANT, of personalty not required to give security, 534. LIMITATIONS, conditional, in general, 600-2. as to marriage, 613. as to contesting will, 621. as to residence, 626. as to alienation, 607. description for purpose of, 508-510. of estate in personalty, 531-538. statute of, as defense to action to charge land with legacy, 756. words of, 448. words of, or purchase, 549-555. in personalty, 531-538. on power to make will, 105. statute of as defense to action to charge land with legacy, 756. statute of operating on advances to prevent ademption, 717. LINEAL KINDEED, how they take, 486, 488. LIVEEY OF SEIZIN, necessary for conveyance at common law, 88. LIVING PEESON, heirs of, 451. "LIVING," restricts meaning of words dying without issue, 648. LOANS, gifts of personalty by location including, 517-9. forgiveness of, to legatee not include future, 523. to legatee not forgiven by mere legacy, 535-8. outlawed as satisfaction of legacy, 717. LOCATION, personalty described by, 517-9. LOOSE SHEETS, will written upon, 248 and n. 85. LOSS, of later will, 337 and n. 60-62. LOST, revoking will, 328. LOST "WILLS, presumption of revocation, 356 and n. 27, 28, 357 and n. 30, 31, 37. INDEX. 601 [figures refer to sections; n means note.] LOT, gift of includes, 506. LOUISIANA, signing by mark in, 255, n. 14. witnesses must know contents of will, 275 and n. 91. code, secret or mystic testament, 48. LOVE, as undue influence, 177, 178. LUCID INTERVALS, as affecting testamentary capacity, 134. LUNATIC, testamentary capacity of, 115-137. . MAINTENANCE, gifts of, or requiring, 623-4. MAJORITY, gifts over on death under or without issue, 646, 604, 421, n. 11. MAN, marriage of, as revocation of will, chap. X, part 2 C. MANIA, affecting testamentary capacity, 115-137. MANSION, gift of includes what, 506. MAP, incorporation by reference, 249-251. MARINERS, privileged in nuncupative wills, 238, 239. MARK, as signing, 254, 255 and n. 14. for witness' signature, 298 and n. 73, 75. not meant for signature may be accepted as such, 256, n. 22. presumptions as to ability to write when signature by, 255, n. 14, 15. MARKETABLE TITLE, cannot be obtained by judgment not providing for unborn, 478. MARRIAGE, conditions in restraint of, 612-4. change in laws as to revocation by, 406. of woman as affecting revocation of will, 372-374, 144. of woman did not revoke will in execution of power, 372. of man or woman, by statute a revocation of prior will, 379. of man as revocation of prior will, 375-378. relation by, generally does not put one in class, 444. relation by not take under statutes as to lapse, 674. MARRIAGE SETTLEMENT, as ademption of previous legacy, 732. contracts, 379-380. MARRIED WOMEN, can take by will, 193. constraints upon, making wills, 144-151. 602 INDEX. [figures refer to sections; n means note.] MAESIED WOMEN— continued. interpretation of statutes giving power to will, 146. power of, at common law to will land, 145. power of, over their estates, 101. powers of, 372-374. probate of doubtful will of, 149. right to devise in equity, 150. right to devise separate estate, 150. separate acknowledgment by, 318, n. 46. statutes granting power to will to, 151. what wills valid at common law without consent of husband, 147. acts of, effect on power to make will, 373, 151. MARSHALING, assets in payment of legacies, &c, 741-756. MAESTON V. EOE D. FOX, doctrine of, 377. MASSES, bequests for, validity, 196. MATEEIAL, upon which will may be written, 247. MEANING, of will, chap. XIII. MEDICAL ADVISEE, gift to, presumption of undue influence, 191 and n. 59. MEDIUM, SPIEITUALIST, gift to, validity of, 191, n. 58. MEMBEE, of society as witness to will making gift to society, 210. incompetence of, of class, 480. of class, death of, 478, 479. MEMBEES, of class, who are as donees, 442-482. MEMOEANDA, of intended will lack animus testandi, 59. MEMOEY, loss of, as affecting revocation of prior will, 389. what, needed to make valid will, 111. MENTAL CAPACITY, to make will, 108-137. METES AND BOUNDS, erroneous description of land by, 511, 507-510. METHOD, of division between donees, 483-9. MILITAEY SEEVICE, in which oral will may be made, 238. MILL, gift of includes what, 506. gift of and all land owned in county, 512, n. 2. INDEX. 603 [figures refer to sections; n means note.] MINISTER, presumption of undue influence in gift to, 191. MINOEITY, forbidding marriage during, 612. gift over in case of death during or without family, 421, n. 11, 646. MISBEHAVIOR, as condition to defeat gift, 627. MISDESCRIPTION, of property given, effect and evidence to cure, 507-516. MISNOMEE, of testator in will, 255. of donee, effect and evidence to cure, 436-9. MISREPRESENTATION, to testator which will avoid gift, 171. to testator preventing revocation of will, 344. MISSPELLING, of name in signing, 255, n. 13. MISTAKE, in general as to making wills, 153-168. of inducement to making will cannot be remedied, 162. in signing wrong will, 154-6. in omission of clause, 160. in inserting clause, 157-9. recitals showing, effect to imply gift, 495. rule as to correction of, 168. in signing wrong name to will for testator, 255. of witness in signing wrong paper, 297. destruction of will by, 355 and n. 18. revocation induced by, 329. revocation affected by, 359. in description of gift, 513, 514. in number of beneficiaries, 481, 482. of testator in amount of residue effect on construction, 521, n. 42. MISTRESS, gifts to, not illegal, 212. undue influence by, 182. MISUSE, of terms in will, effect on interpretation, 421. MONEY, construction of term, 499. MONEY LEGACY, promise of need not be in writing, 55. MONOMANIA, effect on testamentary capacity, 135:7. MONSTROUS, likes and dislikes as evidence of insanity, 121. MONUMENTS, descriptions of land by, 511. 604 INDEX. [figures refer to sections; n means note.] MORALS, gifts tending to corrupt, validity, 212. reforming as condition to gift, 627. MORTGAGE, conveying fee in, not act of revocation, 369. power to give included in power to sell, 536, n. 20, 543, n. 67. MORTGAGEE, interest of, does not pass under term land, 503. MORTIS CAUSA, gifts in general, 15-43. MORTMAIN, English statute of, not part of American common law, 198. MORTMAIN ACTS, effect on prior will, 404. MORTMAIN STATUTES, in England, 197. MOSAIC LAW, 11. MOTHER, will of, affected by birth of child, 384. MOTIVE, expressed, bearing on satisfaction, 722. proved to explain strange actions, 118. whether expression expresses, or condition to effect of will, 65. MOVABLES. See Personal Property. MUNICIPAL CORPORATIONS, capacity to take gift by will, 200, 202, 203. MURDERER, of testator, not allowed to take under will, 211. MUTES, execution of wills by, 276. capacity to make wills, 114. MUTILATED WILLS, presumption of revocation, 356 and n. 27, 28, 357 and n. 30, 31, 37. MUTILATING, what is sufficient, 353. MUTUAL WILLS, 70. revocability, 72. time and manner of probating, 71. errors in signing, 154. "MY FARM," &c, includes what, 506, 509. "MY FIRST WIFE," enabling one not wife to take, 437. "MY HEIRS," gift to, includes those who could not take by descent, 452, n.20. MYSTIC TESTAMENT, in Louisiana, 48. INDEX. 605 [figures refer to sections; n means notk.] NAKED LEGAL TITLE, devisable, 83 and n. 15. NAKED POSSESSION, devisable, 82. NAME, change of as condition, 628. gifts to heirs of particular, 452. gifts to individual by, 463. of testator misstated in will, 255. erroneous or fictitious, signed to will, 255. qualification in description disregarded on account of name, 509, 511. rules as to certainty of, 436, 437. NAMING, family or person forbidden to marry, as condition, 612. of members of a class, 479. NATURAL CHILDREN, when included in donees, 442, 444, 445. NATURALIZATION, prevents forfeiture of prior devise to alien, 213. NAVAL SERVICE, enabling one in it to make oral will, 238. "NEAREST RELATION," as donee, construed, 455, n. 50. "NEAR RELATION," means next of kin, 455. ' ' NEEDY RELATIONS, ' ' gift to, construed, 455. NEPHEWS, who take under term, 437, 444. NEXT OP KIN, . postponed gift to, 470. take intestate personalty, 450. to one or his, substitutional, 682-4. who take under term, 456. division among, method of, 485. NIECES, who take under term, 437, 444. NOTES, of legatee set-off against legaey, 734. of testator satisfied by legacy to creditor, 739-740. order to destroy does not apply to future, 523, n. 51. as wills, 60. gifts of causa mortis, 28, 29. satisfaction of, by legacy to maker, 736. when legacy of adeemed by collection, 711. NOW LIVING, restricts membership, 467, n. 89. 606 INDEX. [figures refer to sections; n means note.] NOW OCCUPIED BT, as description of land, 506, 509, n. 91, 5. NUMBEE, effect of stating, of beneficiaries, 481, 482. of acres named in description, effect, 508, n. 89, 510, 511, 515. description of land by street and, 506. of witnesses required, 308. NUN, becoming, as valid condition of forfeiture, 629, n. 75. NUNCUPATIVE, peculiar meaning in Louisiana, 227. NUNCUPATIVE WILLS, treated at length, 215-239. where allowed, 223. of what property, 228. proof, 229-232. reducing to writing, 237. last sickness, to permit, 234. time of probate, 236. when dying away from home, 235. cannot revoke written will, 326. OATHS, necessary to establish oral will, 229. OBEDIENCE, as condition to gift, 626, n. 70. OBLIGATIONS, of testator preventing disposition of property, chap. V, part 2. OBLITERATION, revocation of will by, 352, 342-365. what is sufficient, 353. OCCUPATION, of premises as condition of gift, 626. description of land by naming, 506, 509. without limitation bequeaths principal, 530. devise of, of land, 592. OFFSPRING, meaning of, 447. OLD, persons, wills of validity, 111, n. 13. OLDEST, child, means which, 466. OLOGRAPHIC TESTAMENT, derived from French and Spanish codes, 48. definition, 48. where allowed, 268. essentials of, 268-271. revocation by, 339, n. 66. INDEX. 607 [FIGURES MSFEB TO SECTIONS; n MEANS NOTE.] OMISSION, of words and clauses, supplying by parol, 160, 157, 421. in description of property given, 515-6. in description of donees, 436-9. of children presumed unintentional, 102. of provision for child, 161-164. "ON," showing definite failure of issue, 649. OPINIONS, of testator bearing on sanity, 118-130. OPPOETUNITY, to exercise undue influence as proof, 189. to change will as rebutting proof of undue influence, 187. "OB," devise over, on death under age or without issue, absolute at majority, 602. meaning ' ' and, ' ' and the reverse, in general, 604, n. 18, 682, 421, n. 11. showing substitutional gifts, 682-3. meaning "and" in gift over on death unmarried or without issue, 646, n. 11. OEAL DECLARATIONS, cannot revoke will, 326. See also "Declarations." OEAL WILLS, requisites of, by whom made and of what, 219-239. how revoked, 324 and n. 12. OBDINAEY, duty of the, in regard to payment of debts, 97. OEIGIN OF WILLS, chap. I. OENAMENTS, personal, pass by what gifts, 498. OVEEBUEY v. OVEEBUEY, doctrine of, 375. OWNEE, right to sell in, 412. OWNEESHIP, duration of, 6. PAPEES, when constituting wills, 59, n. 44, 45. when constituting wills, 60 and n. 46, 49, 51, 52. PAEAPHEENALIA, right to never cut off, 100. PAEAMOTJE, gift to valid, 212. undue influence by, 182. PAECELS, of realty, descriptions of, 506-510. PAEDON, gives competency as witness, 310, n. 22. h08 INDEX. [figures eefeb to sections; n means note.] PARENT, gift to, and over to issue means children, 445, n. 88. And see 641. undue influence by and against, 178. PAROL. See also Evidence. proof by, after destruction of will, 205. statements cannot be received even if referred to in will, 251. written will cannot be revoked by, 326. PAROL EVIDENCE, as to clauses and words erroneously included, 157-159. as to clauses and words erroneously omitted, 160. as to intention to revoke, 331. as to reason for revocation, 329. of intention to omit children, 163 and n. 60-64. of surroundings of testator, 428. to establish fraud, 174 and n. 4. to establish will, 155. to identify beneficiary, 437, 438. to prove lost will, 337. to show date of will, 262, 334. to show place where will was executed, 262. to show whether new paper a substitute or codicil, 336. PAETIAIi EEVOCATION, by destructive act, 358 and n. 43. PARTICULAR EXPRESSIONS, construction of, 498-502. PARTICULAR TENANT, where heir is also, 471. PARTITION, deed of, not a revocation, 369. PARTNERSHIP, after-acquired interest in passing, 524, n. 54. PART PERFORMANCE, to take promise to devise out of statute of frauds, 55. PART, destruction of, of will only, 358. PARTS, of a will, 252. "PAY TO," affecting vesting, 590. PAYMENTS, after will made as satisfaction of previous legacy, 715-734. after will made, of debt ordered to be deducted from legacy, 716. time of affecting vesting, 588. PELLS V. BROWN, rule in, 548. PENCIL, writing and signing will in, 246 and n. 82. cancellations in, to revoke will, 352. INDEX. 609 [figures refer to sections; n means note.] PEE CAPITA OR PEE STIEPES, division, in general, 446, 454, 483-489. PEEGEPTION, of testator essential to presence, 301-7. PERFORMANCE, of condition what is, 603-4. failure of, effect, 596-9. PEEIL OF DEATH, to validate gift causa mortis, 35. what is, in case of gifts causa mortis, 40. what constitutes, 35 and note 67. PERIOD, of ascertaining beneficiaries, 462-477. PEEPETTJITIES, RULE AGAINST, stated, 601, 610, 412. PERPETUITY, words of, not necessary to devise fee, 539-541. bequest without, 530. PERRIN V. BLAKE, rule in, 550. PERSONAL CHARGE, preventing lapse on death of one of donees, 479, n. 8L causes fee to pass without words of perpetuity, 539. created by gift and requiring payment, 623-4, 756. PERSONAL PEOPERTY, after-acquired, can be bequeathed, 87. age necessary to make will disposing of, 107. change of domicile, after making will of, 405. chattels, real, treated as, 86. described by location passing under will, 517-519. disposition of, at common law, 100. disposition of, trend of laws in America on, 101-102. distinguished from land in regard to Statute of Frauds, 243. future crops treated as, 86. how intestate, goes, 450. in tail, 531, 532. life estate in, and remainder over, 533, 534. of wife went to husband on marriage, 100. revocation of wills of, 321. right of married woman to will, at common law, 144. rights of creditors of testator against, 97. rule as to after-acquired from Roman law, 87. the law of what place governs a will disposing of, 409. what estates in, pass to donees, 530-538. wife's, at common law, 372. will speaks as to what time concerning gift of, 523, 524. written wills as to, 242. 39 610 INDEX. "[figures kefer to sections; n means note.] PEESONAL EEPBESENTATIVES, who take gift to, 457-8. as words to create substitutional gift, 682-3. PEESONS, who can take under wills, chap. VIII, part 1. PEESUASION, as undue influence, 183 and n. 21. PHYSICAL CONDITION, as to undue influence, 186. PHYSICIAN, gift to, presumption of undue influence, 191 and n. 59. PICTUEES, pass as furniture, 498. PLACE, by the law of what, is the will governed, chap. XII, part 2. of executing written will, proof of, 262. of executing oral will what is allowed, 235. of signature by witness on will, 295 and n. 59, 296, 297. of signature by testator on will, 257-9. of residence, of witness required, 300 and n. 84. of signing by another, 265, n. 56. of Bigning holographic wills, 269 and n. 70. PLATE, included in what gifts, 498. PLEDGE, of property not working ademption, 712, n. 20. POLICY OF INSUEANCE, on testator's life, validity of bequest of, 85. on testator's life passes by gift of estate, 500, n. 49. POOE, gift to city for, 202-3. POOE EELATIONS, 455. POETIONS, advances to children deemed to be, in satisfaction of legacy, 723-734. POSITION, of signature, 295 and n. 59, 296, 297. of signature under Statute of Frauds, 296 and n. 65-67. POSSESSION, and expectancy, estates in, 562. as essential to conveyance at common lkw, 88. as ground for individual ownership, 3. interest in, passes under term land, 503. naked, -devisable, 82. not essential to devise, 81. POSSIBILITY, mere, cannot be disposed of by will, 80. POSSIBILITY OF EEVEETEE, devise of, 80, n. 9. INDEX. 611 [figures refer to sections; n means note.] POSTHUMOUS CHILDEEN, entitled under statutes regarding omissions^ 162. rights of, 102. take like other children, 385. POSTPONED GIFTS, 470-475. POVERTY, » of beneficiaries or kin, evidence of, 187, n. 30. POWER, physical, &c, comparison of, as affecting question of undue influence, 176. to divert succession to property, 99-102. to make will, cannot be delegated, 64. delegated in will to avoid it, 64 and n. 58. of appointment to children, restricting meaning of "dying without issue," 644. beneficial not an interest creditors can reach, 609, n. 31. to defeat devise must be strictly exercised, 602, n. 16. to sell and divide revoked by testator 's contract, 371, n. 99. base fee with, beneficial, 547, 548. to sell means fee, 543, n. 67. to sell including power to mortgage, 543, n. 67, 536, n. 20. beneficial to sell implied, 536, n. 20, 543, n. 66. beneficial cannot be exercised by will of donee, 536, n. 20. will made by wife in execution of, 372. effect of limited estate with beneficial, as to remainder, 536-7, 543-8. presumption as to execution of, by general gift, 504. statutes as to presumption of intention to execute, 504. of appointment of his own heirs given to life tenant, effect, 544, n. 69. of appointment to living issue, restricting words "failure of issue," &c, 644. statutes as to affecting donees estate, 543, n. 68. testamentary execution of, not revoked by general revocation, 332, n. 47. POWER OF ATTORNEY, held to be a will, 60. POWER OF LEGISLATURE, to affect will by laws passed before death of testator, 401. to affect wills by laws passed after death of testator, 400. PRAYERS, gifts to have, validity, 196. PREACHING, as condition in gift, 629. PRECATORY TRUSTS, what words create, 494. PRECEDENT CONDITIONS, nature and effect, 594-8. construction in general, 6J34. requiring reform is, 627. affected by rule against perpetuities, 601. 612 INDEX. [figures refer to sections; n means note.] PEECBDENTS, in construction of wills, 416. PREFERENCE, in payment of legacies, 741-7. PBEHISTOEIC ORIGIN, of transfers of property, 10. PREJUDICE, as undue influence, 180. PREMISES, what included in gift of, 506. PEEPOSTEEOUS BELIEFS, as test of insanity, 125-129. PEESENCE, witnesses signing in, of testator, chap. IX, part B. of testator, where his signature is made by another, 266 and n. 57. of testator need not be noticed by witness, -277. of witnesses when will signed, 273. what is, of testator, 303. what is, of testator, 305, 306. of testator where will destroyed by another, 364. witnesses signing in, of each other, 290 and n. 40, 41. PEESENT INTEREST, not passed by will, 73. PRESUMPTION, as to ability to write when signature by mark, 255, n. 14, 15. as to competency of witnesses, 312. as .to condition of will at execution from condition at death of testator, 248, n. 86. as to intent to republish by codicil, 395. as to knowledge of instrument executed, 245. as to later will revoking, 333. as to lost later will, 337 and n. 60-62. as to signing in presence of testator, 307. as to undue influence, 189. as to undue influence from testator's condition, 190. of undue influence, owing to confidential relations, 191. of intention of legislature in change in laws before death of testator, 402. of intention where writing is in pencil, 246, n. 82. of law in favor of immediate vesting, 582. of revocation of lost or mutilated wills, 356 and n. 27, 28, 357 and n. 30, 31, 37. on destruction of duplicate of will, 345 and n. 89. PRETERMITTED, children, rights of, 102. PREVENTION, of revocation by fraud, 344 and n. 82, 84. INDEX. 613 [figures refer to sections; n i:eans note.] PEIEST, gift to, presumption of undue influence, 191 and n. 58, 59. PRIMARY GIFTS, after gift to class rules as to, 680-695. PRINCIPAL, gift of income is gift of, 541. ( PRINCIPLES, general, of construction, chap. XIII, part 2. PRINT, as writing under statute, requiring will written, 246. avoids holographic will, 270. PRIOR WILL, revival of, on revocation of revoking will, 361-363. PRIORITY, in abatement of legacies, 741-7. PRISONERS, may make wills, 138, 141. may take by will, 194. PRIVATE CORPORATIONS, capacity to take by will, 197-9. PRIVILEGED COMMUNICATIONS, to attorney waiver of by making him witness, 317. PROBATE, competency of witnesses at time of, 311. none after revocation, 52. not affected by mistake in inducement, 165. of alternative wills, 67. of conditional wills, 67. of contract cannot be, 51a and n. 9. of double will, 71. of doubtful married woman's will, 149 right to not affected by invalidity of gifts, 370, n. 96. of joint will, 71 of mutual will, 71. of nuncupative will, when allowed, 236. of reciprocal wills, 71. of revoking will no bar to action on contract, 52, n. 14. of simultaneous will, 71. of will does not affect right of after-born child to share, 383. of will affected by birth of child, 383. of wills made for consideration, 51a. of will not influenced by omission of child, 164. requirements for, same with holographic as with other wills, 269. PROBATE COURT, does not determine construction of will, 168. exclusive jurisdiction of, 167, 172. PROBATE JUDGE, as subscribing witness, 315. 614 INDEX. [figures refer to sections; n MEANS note.] PEOCEEDS, of devised land sold by testator, who entitled to, 371, n. 99.. PBOFITS, devise of, of land is devise of land, 541. PEOHIBITION, against conveyance, effect, 606. PEOMISSORY NOTES, see "Notes." PEOMISE, of money legacy under Statute of Frauds, 55. PEOMISE TO WILL, must have consideration, 54. PEOOF, of will, by parol after loss or destruction, 205. of intention to omit children, 163 and n. 60-64. as to competency of witnesses, 312. by subscribing witnesses, 204. of lost later will, 337 and n. 60-62. of nuncupative will, when it must be made, 236. of oral wills, 299-233. of undue influence, 189 and n. 47. of will, statutes as to, 286. PEOPEETY, ascertaining what is included, 490-529. changes in, as affecting revocation, 389. construction of term, 501. disposition of, 7. disposition of, before Feudalism, 91. disposition of, not always necessary in will, 68. disposition of, prevented by testator's obligations, chap. V, part 2. disposition of, trend of laws in America on, 101-102. history of transfers, 9-12. prehistoric transfers, 10. statutes limiting corporations as to amount of, 199. PEOPEETY EIGHTS, foundation of, chap. I. PEOPONENTS, presumption as to destruction of later will by, 337, n. 60. PEOPOETIONS, changes affecting, as revocation, 389. PEOSPECTIVE EEVOCATION, 330 and n. 40. PROVISION, for child, omission of, 161-164. for children, proof of intention, 387. for children, what is, 162. for widow and children to prevent revocation "by law, 376. what is, for children, 386. INDEX. 615 [FIGURES KEFER TO SECTIONS; n MEANS NOTE.] PUBLICATION, reasons for, 285. what is, 279. what is sufficient, 285, when necessary, 279. PUBLIC CHAEITY, sometimes saved by cy pres doctrine, 438. PUBLIC CORPORATIONS, capacity to take under will, 200. PUBLIC POLICY, as to contracts to will, 53. who forbidden to take under wills by, chap. VIII, part 3. PUBLIC SCHOOLS, gifts for valid, 203. PUBLIC WORKS, gifts for valid, 203. PUNCTUATION, effect on construction, 421. PURCHASE, when heirs a word of, 449. words of, or limitations, 549-555. PURPOSE, declared, accomplished, works ademption, 722. of signing as witness, 294 and n. 49a, 50, 54. QUANTITY, statements of, in description not given much weight, 510, 511. QUANTUM MERUIT, for services to testator, 55. RATIFICATION, as affecting undue influence, 185. of unauthorized destruction of will, 365. which will republish invalid will, 393. READING, will to blind or illiterate testator, necessity of, 276. REAL ESTATE, see Land. REASON, being accomplished, legacy adeemed, 722. same given for both gifts shows substitution, 698. RECEIPT, for devise, not binding on devisee, 326, n. 21. by legatee to testator or executor for legacy, effect, 716. RECIPROCAL WILLS, 70. probate of, 71. revocability, 72. RECITAL, false, does not affect previous provisions, 494. 616 INDEX. [FIGURES REFER TO SECTIONS; n MEANS NOTE.] EBCITAL— continued. of previous gift not made evidence of intentions to give, 495. of motive for making will or condition to its operation, 65. of same reason for both gifts shows substitution, 698. EECOMMENDATION, creating precatory trust, 495. RE-CONVEYANCE, of devised land, effect to pass, 368. RECOVERY, common, barring the entail, 93. common, see also "Estates Tail." RE-EXECUTION, chap. XI and 327. to revive prior revoked will, 361, n. 65, 363. REFERENCE, as a means of incorporating into a will, 249-251. to power or subject of it, whether necessary to execution of power, 504. REFERENTIAL CONSTRUCTION, of words importing failure of issue, 641-3. REFORM, required of donee as a condition, 627. REFORMATION, in equity, 166, 167. of error in identity of will, 155. reasons against, 165, n. 66; 166. REJECTION, of gift accelerates remainder, 576. of gift passes it to residue, 521. of limitation in double descriptions, 507-513. of words generally in construction, 421, 491. RELATION, between testator and legatee showing satisfaction of legacy by gift, 723-734. gift to persons described by, 464. RELATIVE REVOCATION, 359, n. 49, 51, 55. RELATIVES, postponed gift to, 470. who take under term, 455. within meaning of statutes as to lapse, 674. RELEASE, of debt when implied by gift of legacy, 735-8. direction to give is merely a legacy, 738. direction to give does not include future obligations, 736, 523, n. 51. of interest by witness, effect on competency, 205. by legatee to testator or executor, effect, 716. RELIEFS, defeat of by disposition, 92. INDEX. 617 [figures refer to sections; n means note.] EELIGION, validity and effect of conditions as to, 629. bequests for masses, 196. gifts in derogation of established, 211. REMAINDER TO "HEIRS", of first taker, effect of, 550. REMAINDERS, defined, 566. requisites and qualities, 567-9. all future estates held to be if possible, 575. after estate tail are vested, 635, n. when vested, in general, 580-590. to "issue" of life tenant, 557-561. to classes, who take, 475. estate in, passes under term land, 503. to children of first taker is in fee, 539, n. 29, 555. to "children", after life estate in parent, 555. acceleration of, 576. affected by rule in Shelley's case, 549-561. after life estate in chattels, 530-8. after life estate and general beneficial power, 545. to class, including after-born, 475. pass under general devise, 503. implied by gift to issue and gift over on failure, 642. nature of effect by gift or failure of issue, 635. defeated by particular tenant, 575. REMEDIES, for breach of contract to make will, 56, 57. of persons prejudiced by fraud in obtaining will, 173. REMOTENESS, of event allowed by rule against perpetuities, 601, 610. gift over on failure of issue, when void for, 635, 640-9. of event in conditional wills, 67. REMOVALS, as affecting personalty described by location, 517, 518. causing ademption, 518, 713. RENEWAL, of note does not work ademption, 371, n. 99, 712. RENTS, current, pass under term land, 505. devise of, of land is devise of land, 541. RENUNCIATION, of life estate accelerates remainder, 576. of gift passes it by residue, 521. REPENTANCE, as affecting undue influence, 185. REPETITION OF LEGACIES, whether cumulative or substitutional, 697-8. 618 INDEX. [figures refer to sections; n means note,] REPRESENTATIVES, rights of, on death of member of a class, 478, 479. who take under term, 457. gifts to one and (or) his shows substitution, 682-3. REPUBLICATION, chap. XI. change in laws as to, made before death of testator, 407. of will incompetent at time of making, 107. to revive prior revoked will, 363. REPUGNANCY, of conditions in restraint of alienation, 605-610. of descriptions of property, 507-512. of gift over in estate with power, 548. REPURCHASE OF LAND, as affecting devise, 368, 371. REQUEST, of testator to have signing by another, 287, and n. 58, 59. to sign, 289. raising precatory trusts, 494. REQUISITES, of written wills, chap. IX, part B. RES GESTAE, of act of revocation include declarations of testator, 360. RESIDENCE, place of, of witness required, 300, and n. 84. as condition in gift, 626, 212. gift of includes what, 506. affecting inclusion in gift to family, 454. RESIDUE, abatement of to pay debts and legacies, 742. lapsing, disposition of, 671-2. none till all paid, 742. RESIDUARY CLAUSES, 520-522. how affected by general words in connection with an enumeration of things, 492. RESTRAINTS, on marriage, validity and effect, 611-4. on alienation, validity and effect, 605-610. on contesting will, 615-622. on residence, validity and effect, 626. RETROACTIVE EFFECT, of statutes, 529, 403. REVERSION, denned, 565. estate in, passes under term land, 503. expectant on termination of an estate tail, devisable, 80, n. 9. REVERTER, possibility of, devise of, 80, n. 9. INDEX. 619 [FIGURES REFER TO SECTIONS; n MEANS NOTE.] EEVIVAL, by republication, 396. of prior will, 361-363. of woman's will by surviving husband, 372. BEVOCABILITY, a characteristic rather than an essential of a will, 76. of double wills, 72. of joint wills, 72. of mutual wills, 72. of reciprocal wills, 72. of simultaneous wills, 72. REVOCATION, change in law as to, 406. destroys right to probate, 52. mere, of previous wills, not a will, 68. of gifts causa mortis, 38-43. by destructive act of testator, sufficiency of intention, 355-363. by destructive act of another for testator, 364-5. by marriage and birth of issue, 372-380. by birth of child, 381-7. by change of estate, 368-371. form of at common law, 321. provisions of statutes as to, 322-3, 325. requisites of, by later will, 325-339. by writing not a will, 340-1. by destructive act of testator, sufficiency of act, 342-354. changes in circumstances and affections, 388-391. effect to revive former will, 361-3. of woman 's will by marriage, 144. simple, of other wills, entitled to probate, 68. BEVOKING WILL, entitled to probate despite contract, 52. EIGHTS, of others in case of incompetence of member of class, 480. of survivors on death of members of a class, 478, 479. EIGHT OF ENTEY, whether devisable, 80-1. who may make entry under, 599. necessity of expressly reserving, 599 n. EOMAN, form of will, 215. EOMAN LAW, as to age capacity for making wills, 106. right of married woman to will personalty, 144. EOMAN WILLS, 12. as to after-acquired personalty, 87. RULE AGAINST PEEPETUITIES, when violated, 601, 610. 620 INDEX. [figures refek to sections; n means note.] BULE IN SHELLEY'S CASE, discussed at length, 549-561. applied to personalty on gifts over on dying without issue, 63k KTJLE IN WILD'S CASE, discussed at length, 552-5. RULES, general, of construction, 419-434. special, of construction, chap. XIV. value of, of construction, 416. RULES OP LAW, imperative, 412. SAFETY DEPOSIT BOX, what comprehended in gift of contents of, 517. SAILORS, nuncupative wills by, 238-9. SALE, theory of, 5. as revocation of devise of land, 368-371. judicial, to relieve land of charge, 756. as ademption of legacy, 711-2. validity of conditions preventing, 605-610. SANITY, affecting testamentary capacity, 115-137. SATISFACTION, of debts by legacies and legacies by debts, 735-740. of legacies by ademption, 715-734. SCHOOLS, gifts to cities and towns for, valid, 202-3. SEAL, not signature, 256. tearing off, to revoke, 351. SEALING, of will, 261. SEAMEN, privileged in nuncupative wills, 238. SECOND SON, means which, 466. SECOND COUSINS, who take under term, 444. SECRET, keeping will and death of testator, as evidence of undue influence and fraud, 187. trust to benefit witness to will is void, 210. SECRET TESTAMENT, in Louisiana, 48. SECURITY, when and what required of life tenant of personalty, 534. INDEX. 621 [figures refer to sections; n means note.] SECURITIES, passing by gift of contents of chests, &c, 517. SEIZIN, necessary for conveyance at common law, 88. SEPARATE ESTATE, of married women devisable at common law, 150. SEPARATE PAPER, signing on, 297, and n. 72. SEPARATION, of husband and wife, validity of provision tending to produce, 626. SERVANTS, who take under term, 460. SERVICES, as undue influence, 179. of member of testator's family, provision entitling payment for, 625, n. 64. as consideration for promise to devise and part performance to satisfy statute, 55. provisions requiring are conditions subsequent, 623-4. required as condition to gift, 602, n. 16. SET-OFF, by executor of debt due testator against legacy, 738. SETTLEMENT, ante-nuptial, to prevent revocation by law, 376. marriage contracts, 379-380. "SHALL", showing time of failure of issue intended, 649. "SHARE AND SHARE ALIKE", effect of phrase as to distribution, 489. SHARES, determination of, 483-489. accruing by survivorship, when, and rights in, 662-5. SHEETS, will written upon loose, 248, and n. 85. SHELLEY'S CASE, RULE IN, origin of, 550, n. 87. applied to bequests, 532. applied to devises, 549-551. abolished, 551, 561. applies to gift to one for life, remainder to his issue, 557. a rule of law, not of construction, 412. SICKNESS, last, in habitation, in case of nuncupative will, 235. last, in nuncupative wills, 234. SIGN, as signing, 254. 622 INDEX. [figures refer to sections; n means note.] SIGNATURE, adopting original, for re-execution, 394. destruction of with intent to revoke, 351 and n. 6, 354, n. 16. necessary at end of will, effeet of added provision, 68. see Signing. SIGNING, acknowledgment of, by witness, 304. after death of testator, 291. before will is written, 293. by another, 299, and u. 84. by another in presence and by direction of testator, chap. IX, part B. 61 compared with attesting, 282. correction of errors in, 155. errors in, 154. form of witness ', 298, and n. 73, 75. in presence of each other, 290, and n. 40, 41. necessitated by Statute of Frauds, 240. of wills, chap. IX, part B. c. d. of witnesses before testator, 292. of witness in presence of testator, chap. IX, part B. g. on separate paper, 297, and n. 72. place of, 295, and note 59, 296, 297. place of, under Statute of Frauds, 296, and u. 65-67. prerequisite for attestation, 280. presumption as to, 307. request for, 289. subscribing distinguished from, 296. under American statutes, 241. what is presence of testator, 305, 306. where it must be attested, 281, and n. 10-13. where there are several sheets to will, 248, and n. 85. will required to be Subscribed, chap. IX, part B. f. with intent to witness, 294, and n. 49a, ,50, 54. witness need not see, 280, and u. 7. SILENCE, of donee relied on by testator, when raise trust, .173. of testator implying request to sign, 267. of testator, when equivalent to publication, 283. SIMPLE DEATH, as a contingency, 650-2. SIMULTANEOUS WILLS, 70. revocability, 72. time and manner of probating, 71. SINGULAR, includes plural, 449. SISTERS, who take under term, 444. INDEX. 623 [figttres refek to sections; n means note.] SITUATION OF TESTATOE, to be considered in interpretation of language, 428. SOCIAL PEACE, as ground for individual ownership, 3. SOCIETIES, unincorporated, gifts to, 439. unincorporated, gifts to, uncertainty in, 195. SOLDIERS, privileged in nuncupative wills, 238. SOLICITATION, as undue influence, 183, n. 21. SOUND MIND, necessary for capacity to make will, 103. necessary to making of will, chap. VI, part 3. what constitutes, sufficient to make will, 111. SPANISH CODE, mystic and holographic testaments, 48. SPECIFIC, legacy defined, 705. legacy ademption of by loss of identity, 711-2. legacy not including after-acquired, 523. devise, includes what, 506. performance of contracts to devise, 57. SPENDTHRIFT TRUSTS, validity, 609. SPIRITUAL ADVISERS, gift to, presumption of undue influence, 191, and n. 58, 59. SPIRITUALISM, belief in, as test of insanity, 129. SPOLIATION, presumption of, 357, and n. 37. SPOUSE, '•ight of surviving, preventing disposition of property, 90. right of surviving, to homestead, 101. STABLE, when passes with devise of house, 506. STATE INTERFERENCE, in succession, 7. STATUTE DE DONIS, 550. STATUTES, See American Statutes. American, as to oral wills, 223, 224. of descent and distribution, construction favored which conforms to, 430. of distribution, how construed, 486-488. giving married women power to make wills, 151. must be obeyed in revocation, 326. construction of, retroactive operation, 402, 529. 624 INDEX. [figures refer to sections; n means noti.] STATUTES— continued. de Donis Conditionalibus, 93. formalities for revocation depend upon, 321. of distribution, as to next of kin, 456. STATUTE OF FBAUDS, 29 Car. II, e. 3, 18-22, 220-222. as to joint wills, 72. as to money legacy, 55. as to place of signature, 257. as to position of signature, 296, and n. 65-67. as to proving will, 205. as to witnesses to revocation, 339 and n. 66. did not refer to written wills of personalty, 242. formalities in making wills required before the, chap. IX, part 1. formalities in wills required by, chap. IX, part 2. in regard to revocation, 322. made estates pur autre vie devisable, 95. 29 Car. II, c. 3, 5, as to signing and witnessing, 240. why enacted, 218. STATUTE OP WESTMINSTEB, on estates tail, 93. STATUTE OF "WILLS, 32 Hen. VIII, 95. 32 Henry VIII, c. 1, as to formalities of wills, 217. 25 Geo. II, chap. 6, 206. 1 Vic, chap. 26, 207. as to devise of after-acquired realty, 88. effect on power of married woman to dispose of land, 146. STATUTES OF MOETMAIN, in England, 197. in American common law, 198. 8TEPCHILDBEN, not comprehended in term children, 442. not relatives under statutes to avoid lapse, 674. STIEPES, division per, 483-489. gifts divided per, 445, 446. where, not specified, 440. STOCK, gift of, when specific and adeemed by sale, 711-2, and notes. STOCK IN TEADE, not included in gift of household goods and furniture, 498. STEEET, and number, devise by, as description, 506. STUDENTS, gifts to, include whom, 603. SUBSCRIBING, see Signing. INDEX. 625 [figures refer to sections; n means note.] SUBSCRIBING WITNESSES, as first proof of will, 204. bequests and devises to, in America, 208. bequests to invalidating will, 205, 206. capacity to take under Eng. statutes, 205-207. capacity to take under will at common law, 204. who are competent as, 309-318. what is sufficient subscribing, 286-300. signing in presence of testator, 301-7. SUBSCRIPTIONS, distinguished from attestation, 274 and n. 80. SUBSEQUENT CONDITIONS, nature and distinguishing marks, 594. construction in general, 603. See also Chapter XIX treating of estates on condition in general. SUBSEQUENT CONVEYANCE, as evidence of revocation, 368-370. SUBSTITUTION, of one gift for another to same person, 697-702. by codicil of one to gift in will to another, 696. by statutes as to lapse, 673-8. by terms of will, 680-702. in general, chap. XX. SUBSTITUTIONAL GIFTS, distinguished from original, 685. incidents of testamentary, 697-702. incidents of statutory, 673. lapse of, 685-695. "or", "and", &c, when sufficient to create, 682-4. SUCCESSION, by operation of law, 13. kinds of, 13. law of, definition, 1. not matter of right, 8. power to divert, 99-102. power to tax, 8. reason for State interference, 7. theory of intestate, 6. traditions and history of, 9-12. SUCH ISSUE, does not restrict to age also, 641, n. 3. shows referential meaning confining to definite failure of issue, 640. SUICIDES, constraints upon, making wills, 141. SUIT, brought in name of executor when specific bequests of choses in action are made, 85. 40 626 INDEX. [figures refer to sections; n means note.] SUPERSTITIOUS USES, bequests for masses held to be, 196. statute of, part of common law of Pennsylvania, 198, n. 16. SUPPOBT, requiring as a condition, rights of parties, 623-4. SUEETT, testator being, of legatee, executor may pay and setoff against legacy, 738. SURROUNDINGS, to be considered in interpretation of language of will, 428. SURVIVING, limits meaning of "heirs", &c, 470, n. 4. restricts to definite failure of issue, 648, n. 14. SURVIVING SPOUSE, as to gifts causa mortis, 43. right's in property, 99-102. rights of, preventing disposition of property, 90. right to homestead, 101. SURVIVING WIPE, did not revive her ante-nuptial will, 372. SURVIVORS, of persons in being as showing definite failure of issue intended, 649. when take share of donee dying, 479. SURVIVORSHIP, gifts over on, construed, 658-661. among donees, provisions for, 662-665. abolition of, effect on lapse by death of joint tenant, 479, n. 74. SWINBURNE, on lawful dispositions in will, 49. TAIL, estate, in personalty, 531, 532. estate, turned to fee, 552. remainder after estate in, is vested, 635, n. 92. See also "Estates Tail." TALTARUM'S CASE, 93. TAXING, of succession, 8. TEACHERS, gifts to public corporations to pay, valid, 203. are entitled under gift to persons learning a "trade," 603. TEARING, see Destructive Act. what is sufficient, 351 and n. 5, 9. TECHNICAL TERMS, meaning of, 432. INDEX. 627, [figures refeb to sections; n means note.] TENANCY, in common, of members of a class, 479. joint, of members of a class, 479. TENANTS IN COMMON, parent and children as, 554. TENANT FOE LIFE, of personalty not required to give bond, 534. TENEMENTS, Statute of Frauds in regard to devising, 240, 241. TENNESSEE, statute as to revocation, 325. TENURE, free socage, disposal of lands in, 95. knight service, disposal of lands in, 95. TEEM, for years not pass by general devise, 503, n. 60. devise of remainder after life estate in, 570. TEEEOEEM CONDITIONS, contesting will as, 620. TESTAMENT, denned, 46. :ormer meaning of, 47. meaning of under civil and canon law, 47. mystic, in Louisiana, 48. now used interchangeably with will, 47. secret, in Louisiana, 48. see Wills. TESTAMENTARY CAPACITY, essential in nuncupative wills, 225. needed to make gifts causa mortis, 34. TESTAMENTAEY POWEES, over another's property, 332, n. 47. TESTATE, definitions, 45. TESTATE SUCCESSION, 13. TESTATOE, definition, 45. acknowledgment of signing by witness to, 304. applies to woman in statutes making marriage of revoke will, 379. birth of issue after death of, 375. construed, 384. death of, closes some classes, 470. declarations of, concerning revocations, 357, n. 30. declarations of, to prove intent to revoke, 360. do wills speak from death of, 523-529. domicile of, determining validity of bequest, 201. effect of laws passed after death of, chap. XII, part 1 A. intention of, in devise of lands, 526, 527. ' 628 INDEX. [figures refer to sections; n means note.] TESTATOK— continued. intention of, to govern, 413. must be able to see witnesses sign, 303. must be conscious of witness signing, 302. obligations of, preventing disposition of property, chap. V, part 2. presence of, in destruction of will, 364. presumed to dispose of all his property, 496. presumed to refer to situation at his death, 429. presumption as to signing in presence of, 307. revocation by act of, chap. IX, part 1. signature by another must be made in presence of, 266 and n. 57. signing after death of, 291. signing after witnesses, 292. signing before will written, 293. signing by another, by express direction of, 267 and n. 58, 59. situation and surroundings of, to be considered in construction, 428. statutes referring to, mean what, 384. what is presence of, 305, 306. what is sufficient acknowledgment by, 282-284. what is sufficient publication by, 285. where, defines a class, 441. who may sign for, 264. will affected by change in laws before death of, chap. XII, part 1 B. witness need not notice presence of, 277. witnesses need not know that, has knowledge, 276. witnesses signing in presence of testator, chap. IX, part B. g. TESTATRIX, definition, 45. TESTIMONY, as to nuncupative will, after six months, 236. interest disqualified to give, at common law, 204. THREATS, as undue influence, 183. "THEN," construed as to show time of failure of issue intended, 649, n. 21. living, limits class, 452. - "THROUGH" and "between," 513, n. 4. TIME, description refers to what, chap XIV, part 3. during which testimony as to nuncupative will taken, 236. law as to, in governing will, chap. XII, part 1. of failure of issue or dying without fixed by expressions in will, 640-9. of payment, effect on vesting, 588. of signing will, 260. when beneficiaries are ascertained, 461-479. will speaks from what, 523-529. TITLE, by descent, 13. INDEX. 629 [figures refer to sections; n means note.] TITLE— continued. by distribution, 13. effected by contract to will, 53. naked legal, devisable, 83 and n. 15. TOKEN, as signing, 254. TOWN, gifts to in trust valid, 203. TEADE, requirement that legatee learn means, 602. TRADITION, transfer by, under Mosaic law, 11. TEAITOES, ' constraints upon, making wills, 141-143. TRANSFER, methods of, 13. theory of, 5. under Mosaic Law, 11. history of property, 9-12. TEANSLATIONS. of will, 245 and n. 77. TREASON, as working forfeiture, 141-143. TEUSTEE, devise to, to permit beneficiary to use and occupy, 542. investing trust funds in own name with consent of testator, as revoca- tion, 369. corporations as, 202, 203. TEUSTS, can be administered by corporation, 202. conveyances in, when void under rule against perpetuities, 610. how raised in gift, 494. for benefit of spendthrifts, validity, 609. powers in, over another's property, 332, n. 47. spendthrift, 542. showing that definite failure of issue was intended, 649. to uphold gifts to unincorporated societies, 439. gifts to public corporations in, valid, 202-3. ex-malificio raised in gift obtained by fraud, 173. raised by precatory words, 494. public charitable, when valid, 439, 202-3. TYPEWRITING, as writing under statute, 246. UNATTACHED WEITINGS, as will, 248-251. UNCEETAINTY, as to donee, 195. construction where, 425. devises void for, in revoking will, 328. 630 INDEX. [figures refee to sections; n means note.] UNCERTAINTY— continued. of designation, chap. XIV, part 1. when will fails for, 334. in description of property given, 507-516. UNCONSCIOUSNESS, of testator when will executed makes it void, 302. UNDIVIDED INTERESTS, when devisable, 79. UNDUE INFLUENCE, chap. VII, part 3. treated af length, 175-191. deed void for did not revoke devise, 368, n. 84. invalidating revoking clause, 340 and n. 71. preventing revocation, 344. UNFINISHED ACT, of revocation, 347, 348. UNINCORPORATED SOCIETIES, gifts to, 439. gifts to, uncertainty in, 195. UNITED STATES, capacity to take devise, 193. UNLAWFUL, intention not presumed, 426. UNJUST WILLS, as evidence of insanity, 123. as presumption of undue influence, 189. to hold if clear, 413. UNMARRIED, or without issue, gift over in case of death, so, 646. includes widows as donees, 461, n. 75'. describing legatees, 461, n. 75. woman's will revoked by marriage, construed, 374. UNMARRIED WOMAN, includes widows in statutes making marriage revoke, 374. does not include married women under such statutes, 374. includes widow as donee, 461. UNNATURAL, effect not presumed, 426. UNNATURAL WILL, to hold if clear, 413. UNREASONABLE, will, as presumption of undue influence, 189. intention not presumed, 426. USE AND OCCUPATION, devise of, of land, 542. USE OF PERSONALTY, without limitation bequeaths principal, 530. USES, effect of, 94. INDEX. 631 [figures refer to sections; n means note.] VALIDATING, of wills by republishing, 396. VALIDITY, difference in essentials of, in case of wills and deeds, 73. of double wills, 70. of gifts, change in law as to, before death of testator, 404. of joint wills, 70. of mutual wills, 70. of reciprocal wills, 70. of simultaneous wills, 70. of wills revoked despite contracts, 52. VALUABLE PAPEBS, when holographic will is found among, 268. VALUE, of residue mistaken by testator, effect on construction, 521. VENDEE AND VENDOR, effect of general devises by and death before completing convey- ance, 503. VESTED EIGHTS, as affected by laws passed after death of testator, 400. VESTING, general rules as to, 580-590. meaning of, 580. validating of conditions suspending, 610. law favors early, 582. what provisions prevent, 581-593. of gifts to a class, 478, 479. of remainder after estate tail, 635, n. 92. of shares accruing by survivorship, 662-5. validity of gifts in which it is suspended, 610. VOLITION, must be unrestrained in will, 47. necessary for capacity to make will, 103. constraints on, avoiding will, 175-191. VOLUNTARY, wills must be, 50. societies, validity of gifts to, 439. WARDSHIPS, defeat of by disposition, 92. WASTE PAPERS, will thrown among not revoked, 343. WEAKNESS, of testator bears on undue influence, 186. WEALTH, of beneficiaries or kin, evidence of, 187, n. 30. WHAT REMAINS IE ANY, validity of gift of, 537, 545. 632 INDEX. [figures refer to sections; n means note.] WHEN, of age, &c, preventing vesting, 586. WIDOW, an unmarried woman, aa to wills, 374. as donee is not widower, 461, n. 75. election of, to take under will does not destroy her right to intestata property, 497. taking under gift to family, 454. gift to may include whom, 464. gift bo long as, is valid, 613. gift so long as only life estate, 540. not take under gift to heirs, 450. not next of kin, 456. not relative under statutes as to lapse, 674. provision for, to avoid revocation by law, 376. right of election to take under will or statute, 101, n. 59. rights of, in personalty, at common law, 100. rights of, to land at common law, 99. WIPE, as witness to husband 's will, 318, and n. 46, 47. conditions in gifts tending to separate husband from, 212 and n. 96. confidence in or affection for, as undue influence, 177. gift to, of unmarried man, 465. of witness, gift to, 209. second marriage of as valid condition, 612. whether included in gift to family, 454. when take under gift to heirs, 450. when take under gift to next of kin, 456. WIIiD'S CASE, rule and application, 552-555. WILL, definition, 46. now used interchangeably with testament, 47. what may be disposed of by, chap. V. among Babylonians, 12. among Egyptians, 12. among Greeks, 12. among Hebrews, 11. among Eomans, 12. as parts of contracts, 51a. ascertaining the beneficiaries and their respective shares, chap. XIV. ascertaining what estates in the property the donees will take, chap. XVI. ascertaining what property is included; chap. XV. by what law governed, chap. XII. cannot revoke gift causa mortis, 39. consideration for promise to, 54. construction of, chap, XIII. INDEX. 63g [FIGURES REFER TO SECTIONS; n MEANS NOTE.] WILL — continued. contract to, affected by public safety, 53. contracts to make, 50, n. 7. distinguished from contracts, 51, 51a. effect of, chap. XIII. effect of coercion, 50. effect of revoking one made under contract, 62. error in, chap. VII. for a consideration, probated, 51a. formalities required in making, chap. IX. fraud in, chap. VII. history of, chap. I. holographic, 48. kinds of, 48. must be lawful, 49. must be voluntary, 50. origin of, chap. I. prehistoric origin of, 10. re-execution of, chap. XI. republication of, chap. XI. requisites of written, chap. IX, part B. revocable, 51. revocation of, chap. X. revocation prevents probate, 52. secret or mystic, 48. special rules of construction, chap. XIV. time from which, speak, 523-529. treatment outlined, 44. who may make, chap. VI. who may take by, chap. VIII. undue influence in, chap. VII. WITCHCRAFT, belief in, as test of insanity, 127. WITHOUT ISSUE, &c, gifts over on death, construed, 630-652. WITNESSES, signing with intent to, 294 and n. 49a, 50, 54. subscribing, disability to take under will at common law, 204. when will good without, 268-271. acknowledgment of signing by, 304. American statutes as to, 286. disqualifications of, 310. form of signature of, 298 and n. 73, 75. gifts to husband or wife of, 209. gifts to, where a sufficient number of competent, 210. marriage of, to beneficiary, no effect on validity, 209. must sign so that testator can see them, 303. necessity of request for signing, 289. $34 INDEX. [fIGTJRES REFER TO SECTIONS; n MEANS NOTE.] WITNESSES— continued. need not hear acknowledgment, 274 and n. 89. need not know contents of will, 275. need not know it is a will, 279. need not know that testator knows, 276. need not notice presence of testator, 277. need not see signing, 280 and n. 7. need not see signing, 282, 283. need not see whole will, 278 and n. 97. number of, required, 308. number required for oral wills, 230. presumption as to signing in presence of testator, 307. required by Statute of Frauds, 240. residence of required, 300 and n. 85. signing after death of testator, 291. signing before testator, 292. signing before will is written, 293. signing in presence of,. 273. signing in presence of each other, 290 and n. 40, 41. signing in presence of testator, chap. IX, part B. g. signing of, by another, 299 and n. 84. subscribing, bequests and devises to, in America, 208. subscribing, bequest to invalidating will, 205, 206. subscribing, capacity to take under English statutes, 205-207. testator must be conscious of signing of, 302. to destruction of will, 364. to oral wills, must be bidden to witness, 231-233. to oral wills, necessity of oath of, 229. to republishing of will, 363. to revocation, 339 and n. 66. to writing revoking will, 340. under American statutes, 241. what is presence of testator, 305, 306. what is sufficient publication to, 285. when attestation of, insufficient, 284 and n. 26. where signature must be attested, 281 and n. 10-13. who are competent, chap. IX, part B. i., 309-318. WOMEN, marriage of, as revocation, chap. X, part 2 B. as witnesses in Louisiana, 316. married, power of over their estates, 101. WOEDS, interpretation of, in general, 431-434. one word given two meanings on different objects, 648. modified by contest — between meaning through, 514, n. 4. meaning of general, 492. See also words in alphabetical order. INDEX. 635 ■[figures kefer to sections; n means note.] WOEDS AND PHEASES, meaning of, affected by interpretation according to general intent, 421. technical, defined, chap. XIV, part 2. WOEDS OF PEEPETUITY, devise without, 539, 540. WRITING, by another, 299 and n. 84. not wills, 68. nuncupative will must be committed to, 237. other, revoking will, 340, 341. requirement of, in Statute of Frauds, chap. IX, part B. B. revocation by a later, chap. X, part 1 A. showing intention to revoke not sufficient, 326. what constitutes, 246. WRITINGS, sufficient to revoke wills, 341 and n. 73. WEITTEN "WILLS, must be witnessed unless statute relieves, 268. of personalty, 242. requisites of, chap. IX, part B. 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