(Jnrn^U ilam ^rlynol Eibtary KF 755.S37'l892 """""-"""'^ A •featise on the law of wills / 3 1924 018 799 233 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/cu31924018799233 A TREATISE LAW OF WILLS BY JAMES SCHOULER, LL.D. Lecturer at Boston University Law School, and Author of Treatises on " Executors and Administrators," "Domestic Relations," etc. SECOND EDITION BOSTON BOSTON BOOK COMPANY 1892 CoFYKiGHT, December, i886, By JAMES SCHOULER. Copyright, April, 1892, By JAMES SCHOULER. Electrotyped by J. S. Gushing & Co., Boston. Presswork bv John Wilson & Son, Cambridge. NOTE TO SECOND EDITION. The author has personally revised the present edition of this volume, making use of the latest English and American cases to illustrate his topics, upon the general plan origi- nally pursued in preparing this work, and necessarily with most copious reference to the essentials of a probate. This edition has been long deferred beyond the time which the sale of this book warranted, under the usual computation, from a feeling that members of the profession dislike fre- quent revisions of a text-book. J. S. April 15, 1892. PREFACE. This book has been prepared as a companion volume to the author's work on "Executors and Administrators," which was issued about three years ago, and found a rapid sale. It treats of Wills, their nature, essentials, and mode of inter- pretation ; while the former book discussed the Administra- tion of estates, testate and intestate, and the rights and duties of Executors and Administrators ; and the two vol- umes together fairly comprehend the English and American law relating to Estates of Decedents, traced historically and logically down to the present day. The writer's plan of treatment follows that pursued in his former volume, and described in its preface. Abstruse and superfluous details have been subordinated to the idea of clearly presenting to student and practising lawyer the main principles of our law ; and, writing from an independent standpoint, the author has not felt hampered by the necessity of parcelling out our excellent American jurisprudence to hang in footnotes upon the random hooks of any English treatise. English and American systems are here freely compared, and their lines of legal thought placed in proper contrast. Statute models, forms of wills, and practical sug- gestions to testators will be found in the Appendix. In all matters which pertain to probate practice, it is believed that these two volumes will be found ample for general study and reference ; while under the final head of Testamentary Con- VI PREFACE. struction, in this volume, all the guiding principles are set forth, it is hoped, with sufficient fulness and precision. The only American work which may be thought to have occupied before a field like this is the well-known and popular one of Judge Redfield. But the peculiar preparation of that work was such that further revision from the author's hand was looked for ; and with the death of that accomplished scholar and revered friend, more than ten years ago, and the extinction of his family line, not only has revision failed alto- gether, but other writers need no longer feel delicate in taking up the task anew. The present author may truly say that he has found far less assistance from that wprk than from those English standard authorities, Williams and Jar- man, as annotated by our competent American editors.^ The brief treatises of Hawkins and Sir James Wigram have proved serviceable, too, under the head of Testamentary Construc- tion ; also Wharton and Stills on Medical Jurisprudence, where the wills of insane persons are discussed. All such assistance, English or American, is fairly shown by the cita- tions at the foot of each page ; and the present writer has collected his own materials, besides, relying throughout, as usual, upon his independent investigation of the law, and bringing the decisions, English as well as American, as nearly as possible to the date of publication. JAMES SCHOULER. Boston, January i, 1887. 1 Williams on Executors and Administrators, 7th English edition (Perkins's American notes), and Jarman on Wills, 4th English edition (Bigetow's American notes) are cited in the present work. TABLE OF CONTENTS. PART I. INTRODUCTORY CHAPTER. NATURE AND ORIGIN OF TESTAMENTARY DISPOSITION. PAGE § I. Definition of Will ' . . . . i 2. Last Will and Testament ; Testament and Testator .... 2 3. Gift ; Devise ; Bequest 3 4. Property : Real, Personal, and Mixed 4 5. Legacy 4 6. Wills, Written and Unwritten, or Nuncupative 5 7. Codicils or Postscripts to Wills 5 8. "Will" includes "Codicil" 6 9. Testaments in the Civil Law ; Special Kinds ; Mystic, Holograph, etc 6 10. When a Will or Testament comes into Force ; Revocation and Alteration 7 11. Effect of a Subsequent Statute upon One's Will 8 12. Origin of Wills ; Natural Law of Succession 9 13. Origin of Wills ; Historical Views of Succession 10 14. Origin of Wills in England 13 15. The Same Subject : Devises of Land 14 16. Origin of Wills in the United States 15 17. Prevalent Rule of Succession; the Will of the State and the Will of the Individual 15 18. The Same Subject : where the Will of the State is Paramount . 17 19. The Same Subject : Husband and Wife 17 20. The Same Subject : Children unprovided for 18 21. The S^me Subject: Gifts Void as creating Perpetuities, for Superstitious Uses, etc 19 22. The Same Subject : Gifts Subversive of Good Morals ... 21 23. The Same Subject: Personal Incapacity to take under a Will . 23 24. The Same Subject : Incapacity of Corporations 24 25. The Same Subject : Infancy, Insanity, Coverture, etc., does not incapacitate from taking 26 26. The Same Subject : Maxims of Testamentary Construction . 27 vii viii TABLE OF CONTENTS. PAGE § 27. The Same Subject : General Conclusion 28 28. What may be given by a Will 28 29. The Same Subject : Property acquired after the Will was made, 30 30. Scope of Investigation to be pursued 32 PART II. CAPACITY AND INCAPACITY TO MAKE A WILL. CHAPTER I. TESTAMENTARY CAPACITY IN GENERAL. 31. What Persons may make a Will : General Rule 33 32. Measure of Capacity the Same as to Property Real or Personal, 33 33. Whether Crime disqualifies from making a Will 34 34. Whether Aliens may make Testamentary- Disposition ... 35 35. The Same Subject : Theory of a Devisable Title 36 36. The Same Subject : Late Statutes aflfecting the Disability . . 37 37. Whether a Sovereign may make a Will 38 38. Wills of Seamen, etc 39 CHAPTER n. INCAPACITY OF INFANTS. 39. Incapacity of Infants founded in their Indiscretion .... 40 40. 41. Earlier Rule more Favorable to Infants' Wills than that of the Present Day 40, 41 42. Infant's WiU Invalid, where Want of Discretion, etc., is shown, 42 43. Modern Legislation treats the Wills of Infants with Disfavor . 43 44. Infant's Appointment of a Testamentary Guardian .... 44 CHAPTER III. INCAPACITY OF MARRIED WOMEN. 45. Incapacity at Common Law arising from Coverture .... 45 46. Marriage a Revocation 46 47. Modern Changes effected by Courts and Legislation as to Wife's Incapacity 47 48. Exceptions to Incapacity ; Wife may bequeath with Husband's Assent 47 TABLE OF CONTENTS. IX PAGE § 49. The Same Subject : American Rule 49 50. Wife's Disposition as Executrix ^o 51,52. Wife's Will of Separate Property ; English Rule . . 51,52 53. The Same Subject : where Spouses live apart 53 54. Wife's Will of Equitable Separate Property ; American Rule, 54 55. Modern English Statutes of Wills 55 56. 57. Wife's Will under Late American Statutes .... 56, 57 58. Wife's Will under the Civil Law ; Present Tendency to Con- jugal Equality 59 59. Re-execution of Will after Coverture; Expectant Property, etc., 60 60. Devise or Bequest to the Husband; his Marital Influence . . 61 61. Husband's Agreement as to Wife's Testamentary Disposition of her Lands 62 62. Mutual Wills of Husband and Wife 63 63. Wife's Gift Causa Mortis 63 64. Wife's Execution of a Testamentary Power 64 CHAPTER IV. INCAPACITY OF INSANE PERSONS IN •GENERAL. § 65, 66. Will of an Insane Person Void; Difficulty of Modern Tests 66, 68 67. Standard of Mental Incapacity in Wills as compared with Contracts, etc 68 68. General Standard of Testamentary Capacity stated .... yr 69. The Same Subject: More Deference to Testator in Earlier Cases 72 70. Incapacity is more than Weak Capacity ; Enfeebled Testator may make a Will y^ 71. The Same Subject; the Testator's Mind should act without Prompting 75 72. The Test of Testamentary Capacity should be referred to the Particular Instrument and Transaction 75 73. Testamentary Capacity Consistent with Execution of a Will in Extremis 77 74. Testamentary Capacity Consistent with Insane Delusions, etc., yj 75. Modes of testing Capacity, as between Monomania and Habit- ual Insanity , 78 76. Effect of Insanity where a Will and Codicils are executed . . 78 77. Unjust and Foolish Wills viewed with Suspicion 79 78. The Just Will of an Insane Person considered 80 79. Manner of making and executing the Will 81 80. Testamentary Capacity as contrasted in Complex and Simple Estates 81 X TABLE OF CONTENTS. PAGE § 8i. Will of one under Guardianship not necessarily Void ... 8i 82. The Same Subject : Adjudication of Idiocy 83 83. Sound and Disposing Mind and Memory 84 84. Testamentary Capacity not Dependent upon Sound Health . 84 85. Classification of Insanity ; the Various Kinds 8; 86. The Same Subject : Insanity defined 86 87. Psychology of Mental Unsoundness, and Unity of the Dis- order 87 88. Courts apply Practical Tests without attempting Exact Classi- fication 87 89. Testamentary Capacity as applied in Tests of Mental Unsound- ness or Coercion 88 CHAPTER V. INCAPACITY OF IDIOTS, IMBECILES, AND PERSONS DEAF, DUMB, AND BLIND. ^ 90,91. Idiots are Incapable ; What is Idiocy 89,90 92. Idiots and Utter Imbeciles have no Testamentary Capacity . 91 93. The Same Subject illustrated 91 94. Persons Born Deaf, Dumb, and Blind 92 95. The Same Subject: Unfavorable Presumption, if any, may be overcome / 94 96. Persons Deaf, Dumb, or Blind, but not born so, presumed Capable 94 97. Liability of Deaf, Dumb, and Blind to Imposition and Error . 95 98. The Same Subject : Wills of Blind Persons 96 99. General Conclusion as to the Wills of the Deaf, Dumb, and Blind 97 CHAPTER VI. LUNACY AND GENERAL MENTAL DERANGEMENT. § 100, loi . Scope of Present Chapter ; Lunatics and Others of Men- tal Unsoundness in the Medium Degree 100, loi 102. Illusions are a proof of Unsound Mind; Perversion and False Judgment are also found 102 103. Attempts of Experts and Others to classify Insanity ... 102 104. Common Symptoms or Manifestations of Insanity .... 103 105. The Will of a Lunatic or one mentally Diseased is Invalid . 105 106. Effect of Restoration to Health, and Intermittent Insanity . 105 107. Lucid Intervals 106 TABLE OF CONTENTS. xi PAGE io8. Lucid Intervals, as distinguished from Mere Abatement of Mania, etc io6 109. Lucid Intervals in Cases which involve Testamentary Capacity, 108 1 10. Will may be established as made during a Lucid Interval ; Burden of Proof no 111. Lucid Intervals ; Clear and Satisfactory Proof required . . in 112. Circumstances Favorable to Proof of Lucid Interval ; a Just and Natural Will in 113. Other Circumstances Favorable to Proof of Lucid Interval . 114 114. Lucid Interval more easily established in Delirium, etc., than in Habitual Insanity 115 115. Proof should be scrutinized where Mental Disease is Insidi- ous and Slow 115 1x6. Doubtful Instances of Mental Derangement ; Paralysis, Pros- tration, etc 116 117. The Same Subject illustrated : Mississippi Case .... 117 118. The Same Subject : Other Illustrations : Epilepsy, Apoplexy, etc 118 1 19. Mental Condition nearly Contemporaneous with the Will, etc., 1 19 120. Suicide not Conclusive of Insanity 120 CHAPTER VII. DELIRIUM, DRUNKENNESS, AND DEMENTIA. 121. Delirium of Disease and its Symptoms 121 122,123. Delirium Incapacitates ; EiFect of Lucid Intervals .122,123 124. Delirium Tremens, and Drunkenness or Intoxication in Gen- eral 124 125. The Same Subject : Drunken Habits may impair the Reason, 125 126. When Intoxication invalidates a Will, and the Reverse . . 126 127. Burden of Proof, etc., where Drunkenness is alleged . . . 127 128. The Rule of Testamentary Capacity in Drunkenness illus- trated 128 129. Dementia as distinguished from Mania or Delirium . . . 128 130. Senile Dementia, or the Mental Decay of the Aged : Litiga- tion on this Ground .... 129 131. The Same Subject : when the Mind begins to decay ... 131 132. The Same Subject : Loss of Memory One of the First Symp- toms of Mental Decay 131 133. The Same Subject : Casual Observers Untrustworthy as com- pared with those Familiar with the Testator 132 134. Senile Dementia disqualifies One from making a Will, but not Old Age Alone '3^ Xll TABLE OF CONTENTS. PAGE § '35)136. Wills of the Aged should be tenderly regarded ... 134 137. Instances in which Wills of the Aged have been sustained . 135 138. The Same Subject : Circumstances favoring Probate of the Will 136 139. Extreme Old Age suggests Vigilance in Probate ; Mental Imbecility vitiates I37 140. Instances in which Wills of the Aged have not been sus- tained 138 141. Rule of Capacity for Dementia not Different from that for Mania 139 142. Opinions as to the Capacity of an Aged Testator carry no Great Weight in Doubtful Cases 139 CHAPTER VIII. MONOMANIA AND INSANE DELUSIONS. 143. Mononrania a Preferable Term to Partial Insanity ; the Mind a Unit , 141 144. Monomania defined; how distinguished from Eccentricity; Insane Delusions 142 145. The Same Subject : Eccentricity further distinguished . . 144 146. Insane Delusion has no Basis in Reason ; Reason and Evi- dence cannot dispel it 145 147. Delusions, Sane or Insane, in General 145 148. Delusions which do not involve Mental Incapacity . . . 146 149. Whimsical or Eccentric Behavior does not incapacitate . . 147 150,151. Illustrations of Eccentric Wills 147,149 152. Eccentric Habits may afford Evidence of Insane Delusion . 150 153, 154. Monomania or Insane Delusion involves Derangement; its Selfish Manifestations 150, 151 155, 156. English Opinions, of Monomania as affecting Testa- mentary Capacity 152, 154 157, 158. English Cases stated where Wills were refused Probate because of Insane Delusion 156,157 159^ American Maxims as to the Effect of Monomania upon Tes- tamentary Capacity 158 160. American Cases stated where the Will of a Monomaniac was sustained , 160 161. American Cases stated where the Will of a Monomaniac was ' not sustained 161 162. 163. Insane Delusion to be distinguished from Prejudice or Error, as well as Eccentricity 163, 164 164. Aversion not amounting to Insane Delusion illustrated . . 165 TABLE OF CONTENTS. Xlii PAGE § 165. Rational or Irrational, Just or Unjust, Character of the Will to be considered 166 166, 167. Leading- Principles applied to Religious Opinions ; De- lusions upon Matters Supernatural, etc 167, 169 168. Wills of Persons believing in Witchcraft, Spiritualism, Clair- voyance, etc 169 CHAPTER IX. PROOF OF CAPACITY AND INCAPACITY. ! 169. In Uncontested Cases of Probate, much is taken for granted by the Court . , , 172 170. In Contested Cases, the Burden of Proof is upon the Pro- pounder of the Will 173 171. The Rule of Burden of Proof sometimes laid down otherwise as to Mental Capacity 174 172. Burden of proving Capacity ; Presumption in Favor of Sanity ; Confusion of Rules 175 173. English Authorities on this Subject 175 174. American Authorities on this Subject 177 175. The Same Subject: whether Subscribing Witnesses must first testify as to Insanity 179 176. Where Evidence of Unsoundness appears from Examination of Witnesses, Proponent must overcome it 182 177. Production of Subscribing Witnesses if Possible . . . . 183 178. Testimony of Subscribing Witnesses Important, but not Conclusive 184 179. English Practice as to producing the Subscribing Witnesses, 184 180. Declaration of Deceased or Absent Subscribing Witnesses Incompetent as to Sanity or Insanity 185 181. 182. How Witnesses may test Capacity for themselves ; they should not Execute dnless satisfied 185, 187 183. Effect of a Statement in the Attestation Clause, vouching for the Testator's Sanity , . , 188 184. Proponent goes forward and has Right to open and close the Case 188 185. Questions of Validity at Issue ; Testamentary Capacity to be determined upon all the Evidence 189 186. Testamentary Capacity at the Date of the Transaction the Real Point at Issue 189 187. Various Matters of Proof bearing upon this Issue ; Insanity once shown, presumed to continue, etc 190 188. The Same Subject : Proof of General Insanity 191 XIV TABLE OF CONTENTS. FACE § 189. The Same Subject : Proof of Lucid Interval or Restoration . 193 190. The Same Subject : Proof of Monomania or Insane Delusion . 194 191. Proof of Drunkenness, etc 19S 192. Personal History of Testator in an Issue of Insanity ; Autopsy, etc '95 193. Declarations, Letters, etc., of Testator, how far Admissible as to Mental Capacity 19^ 194. Miscellaneous Points as to Evidence in Such Cases . . . 198 195. The Same Subject : Declarations of those interested under the Will 199 196. Character of the Witnesses who testify as to Capacity . . 199 197. Whether Unprofessional Persons can give their Opinions as to Insanity . . , 200 198. Subscribing Witnesses, though not Experts, may testify as to Apparent Sanity 201 199. 200. Whether Other Witnesses, not Experts, may state their Opinions as to Sanity ; Unfavorable Decisions . : . 203, 204 201. The Same Subject : Favorable Decisions 206 202. The Same Subject : English Rule • 208 203. Restrictions where the Opinions of General Witnesses are Admissible 208 204. Opinion of Physicians, Attendants, etc 210 205. The Same Subject : Medical Experts, etc 211 206. Expert Testimony Admissible as to Facts observed, or hjrpo- thetically 213 207. The Same Subject : Limitations to Such Expert Testimony . 213 208. To what Time Opinion of Witness relates ; does not extend to Legal Capacity, etc 214 209. The Issue of Sanity is not to be concluded upon Mere Opin- ions; General Conclusions 215 210. Expert Testimony further considered ; Books of Medical Science, etc ; 217 211. Competency and Value of Expert Opinion 218 212. In what Manner Questions should be put to an Expert . . 218 213. General Conclusion as to Expert Testimony 219 213a. Final Observations : Effect of Probate, Costs, etc. . . . 220 CHAPTER X. ERROR, FRAUD, AND UNDUE INFLUENCE. § 214. Error, Fraud, and Undue Influence remain to be considered in Connection with Testamentary Capacity . . . • . . 222 215. Fundamental Error vitiates a Will ; Effect of Partial Errors . 222 2i6-2i8. How far Errors may be corrected in the Probate, 224, 226, 22^ TABLE OF CONTENTS. XV PAGE 219. The Same Subject : expunging Something Superfluous . . 229 220. Equity Jurisdiction to correct Mistakes 230 221. Where Fraud or Force vitiates a Will 231 222. The Same Subject : Importunity and Undue Influence . . 232 223. Equity Jurisdiction of Fraud and Force; Probate Courts de- cide Such Questions 233 224. General Considerations as to Fraud and Deceit 235 225. Fraud, Undue Influence, etc., vitiate when acting upon a Weak though Capable Mind 236 226. Bodily and Mental Condition at the Time of Execution of Great Consequence in the Issue 236 227. Undue Influence defined ; Something Sinister is always im- puted in the Present Connection 237 228. How Undue Influence may be exerted 239 229-231. To invalidate a Will for Fraud, Undue Influence, etc.. Testator's Free Agency must be overcome . . . 241, 242, 243 232. Fraud, Constraint, and Undue Influence relate to the Time of making the Will and its Execution 245 233. Testament need not originate with Testator; but the Will must be his 246 234. A Will invalidated for Fraud, Undue Influence, etc., fails as to AH whose Benefit is procured 246 235. These Maxims applied to Parental and Filial Relation . . 246 236. These Maxims applied to the Marital Relation ; a Wife's In- fluence, etc 247 237. The Same Subject : a Husband's Influence 249 238. Fraud, Undue Influence, etc., must have taken Effect ; Natural or Unnatural Will, etc 250 239. Burden of Proof; as to Fraud, Force, or Undue Influence . . 252 240. The Same Subject : Evidence in Point freely admitted . .255 241. Proof of Fraud, Forgery, etc 256 242. Character of the Evidence to establish Fraud or Undue In- fluence 256 243. The Same Subject : Declarations of the Alleged Testator . 258 244. Declarations, Admissions, etc., of Legatees or Parties in In- terest 261 245. Suspicious Circumstance that the Will is drawn by the Party deriving a Benefit 262 246. Confidential Relation in General implies Opportunities which * must not be abused 264 247. Proof that the Testator knew the Contents of the Will . . 267 248. Probate in Part, where Fraud, Undue Influence, etc., operated in Part 268 249. In General, a Full Probate does not insure against a Partial Failure in Effect 269 XVI TABLE OF CONTENTS. PAGE § 250. Full or Partial Failure of Probate through Incapacity, Fraud, Error, etc 269 251. Inspection of Instrument by Jury 270 251a. Mental Capacity and Undue Influence are Distinct Issues . 270 PART III. FORMAL REQUISITES OF A WILL. CHAPTER I. WHAT CONSTITUTES A WILL. 252. Wills are written or unwritten ; Modern Legislation requires most Wills to be in Writing and duly witnessed .... 271 253. Real and Personal Property now treated alike ; but not so formerly 272 254. But American Statutes relating to Wills are of Local Origin . 273 255. Holograph Wills ; how far recognized by Legislation . . . 274 256. Other Statute Peculiarities as to Form, Signature, and Attes- tation 27s 257. A Will not properly executed and attested is Inoperative under Modern Statutes 276 258. Requirement of Writing, how satisfied ; Materials to be used, 277 259. Language, Native or Foreign, in which a Testament should be expressed 278 260. A Will should be legibly written 279 261 . A Will need not be dated, etc 279 262. Formal Words like "Will," "Testament," "Devise," "Be- quest," are not Essential 280 263. A "Will" is Something Impei"ative, though Softer Words are employed 280 264. The General Form of Testamentary Instruments ; Effect of Legislation 281 265. 266. No Testamentary Form Requisite, if there be the Testa- mentary Intent . 282, 283 267. Whether an Instrument is Testamentary or not, where Statutes require an Attestation, etc 284 268. The Same Subject : Late American Cases 286 269. The Same Subject : Late English Cases 288 270. Whether One Instrument may be partly a Deed or Contract and partly a Will 289 TABLE OF CONTENTS. XVll PAGE 271. A Will is to be distinguished from a Gift Causa Mortis . . 290 272, 273. The Test in Doubtful Cases as between a Will and Some Othei: Instrument 291, 292 274. Posthumous and Ambulatory or Revocable Character of a Will 293 275. What a Testator executes as his Will, should so operate, not- withstanding his Mistake of Law 294 276. Writings, otherwise intended by the Maker, how far upheld as Testamentary by the Courts 294 277. Extrinsic Evidence not Admissible to dispute the Plain Tenor of the Instrument ; Effect of Doubt, etc 295 277«. Doubtful Writing, if pronounced a Will, fails unless formally executed 296 278. Wills made in Jest or without the Animus Testandi, etc. . 296 279. Regular Papers imply the Animus Testandi; otherwise with Papers which are not on their Face Testamentary . . . 297 280. Several Papers may be probated together as constituting a Will 297 281. Instruments incorporated in the Will and Documents Extra- neous ..... 297 282. The Same Subject: Parol Evidence, how far Admissible; Burden of Proof • 300 283. Reference of Will to a Lost or Inaccessible Will or Writing . 301 284. Will may be written on Several Sheets incorporated together, 301 285. 286. Wills Conditional or Contingent 302 287. The Same Subject : English Cases 303 288, 289. The Same Subject : American Cases 306, 307 290. The Same Subject : Bearing of Extrinsic Evidence in Such Cases 308 291. Wills may take Effect in the Alternative 309 292. Contingency or Condition not to be supplied by Parol Proof, 309 293. Operation of Will left to the Discretion of Another . . . 309 294. Papers which cannot be probated as Wills; Wills merely appointing a Guardian ; appointing to a Situation ; exclud- from Inheritance, etc 310 295. The Same Subject: Wills which merely dispose of Real Estate 3" 296. The Same Subject : Writings which merely revoke . . . 311 297. Wills Good which simply nominate an Executor ; Wills with- out an Executor 312 298. Wills Good which make only a Partial Disposition, or distri- bute as in Case of Intestacy 313 299. Wills executed under a Power -313 XVlll TABLE OF CONTENTS. CHAPTER II. SIGNATURE BY THE TESTATOR. PAGE 300. Statute Requirements as to Signing ; English Rule . . . 314 301. Statute Requirements as to Signing ; American Rule . . . 315 302. Whether Execution signifies more than Signing, or includes Attestation S'S 303. 304. Will may be signed by the Testator, or his Mark made, etc 316,317 305. A Prudent Testator wiU write out his own Signature if he can 318 306. Local Variations of Rule ; Signature by Testator himself and by another distinguished 3'9 307. The Same Subject : English Rule 321 308. Testator's Name may be affixed by a Subscribing Witness . 321 309. Seals are dispensed with ; Sealing is not " Signing '' . . . 322 310. Misnomer or Discrepancy in the Signature, etc 323 311. Position of the Signature ; English Rule 323 312. Position of the Signature ; American Rule 326 313. Whatever the Place, a Signing must have been intended . 329 314. One Signature or More for Several Sheets 329 315. One Signature where Will has been written by Portions . . 330 316. Signatures may be upon Paper fastened to the Will . . . 330 317. Wills of Blind, Disabled, and Illiterate Persons; how made known to them 330 317a. Declarations of Testator inadmissible on the issue of Execu- tion 331 CHAPTER III. ATTESTATION AND SUBSCRIPTION BY WITNESSES. 318. Attestation or Subscription independently of Statute . . . 332 319. Attestation under Modern Statutes 333 32p. Number of Subscribing Witnesses required 335 321. Signing or acknowledging before the Witnesses; English Rule ■ • • ■ • 335 322. The Same Subject : Presumption of Due Attestation . . . 337 323. Signing or acknowledging before the Witnesses ; American Rule ■ 339 324. The Same Subject : Rule in Massachusetts, etc., where Will is to be acknowledged 339 325. The Same Subject: Rule in New York, etc., where Signature is to be acknowledged 341 326. Publication or Declaration that the Instrument is a Will . . 342 TABLE OF CONTENTS. xix PAGE j 327. Simultaneous Presence of Witnesses 345 328. Subscription by Testator after the Witnesses ; Acknowledg- ment by Witness not Acceptable . .' 346 329. Request to Witnesses to sign 349 330. Attestation and Subscription distinguished 350 33I) 332- What is Signing or Subscription, by the Witness, 350, 352 333- Signing or Subscription Insufficient, where a Complete Intent to subscribe was wanting, etc 352 334. Subscription must be Animo Attestandi; noting Interlinea- tions, etc 353 335. Position of the Signature 354 336. The Same Subject: Attestation on a Different Paper . . . 355 337. The Same Subject: Attestation where a Will is written on Several Sheets 356 338. "Signing" and "Subscribing" Equivalent Terms; Differ- ences as between Testator and Witnesses 357 339. Whether another may sign for the Subscribing Witness . . 358 340. 341 . Subscribing " in Presence of" the Testator, etc. ; English Rule 359, 361 342. Subscribing " in Presence of" the Testator, etc. ; American Rule 363 343. Subscription "in Presence of" a Testator Unable to see; Cognizance which dispenses with Sight 365 344. Certificate of Acknowledgment Useless ; Magistrate, etc., as a Witness . . . '. 366 345. Re-execution, etc., if Necessary, should be conducted with Careful Regard for Formalities 366 346. Attestation Clause no Essential Part of a Will, but of Great Convenience 367 347. Attestation Clause, Proof that all Formalities were complied with, etc 369 348. Subscribing Witnesses much relied upon ; Effect of Other Testimony 370 349. Attestation to the Sanity of the Testator, etc 371 350. " Credible " or " Competent " Witnesses : who are such . . 372 351. Competency on Common-law Principle ; as referring to Date of Subscribing, etc 373 352 . Mental Disqualification as a Witness ; Disqualification of Chil- dren, Women, etc 374 353. Disqualification of Interest in a Subscribing Witness • • • 375 334. The Same Subject : Judges, Executors, Incorporators, etc. . 376 355. The Same Subject: whether Husband and Wife are Compe- tent for one another • 377 356. Creditor or Remote Beneficiary, whether a Competent Sub- cribing Witness 37^ XX TABLE OF CONTENTS. PAGE § 357. Legacies or Devises to Attesting Witnesses annulled by Statute, 378 358. Competency of Interested Witnesses ; Miscellaneous Legisla- tion ; Devise to Heir, etc 379 CHAPTER IV. NUNCUPATIVE OR ORAL WILLS. § 359- Wills and Codicils usually require a Formal Execution; Exceptions stated ; Unattested Wills, Oral WUls, etc. . . 381 360. Oral or Nuncupative Will ; Definition ; Such Wills rarely per- mitted 381 361. History of Nuncupative Wills prior to the Statute of Frauds, 382 362. Nuncupative WUls affected Personal but not Real Estate . . 384 363. Restraints upon Nuncupative Wills under the Statute of Frauds 384 364. Nuncupative Wills virtually abolished by Statute of Victoria, except as to Soldiers and Mariners 386 365. American Legislation and Policy concerning Nuncupative Wills 386 366-368. , Soldiers, Mariners, etc. . who constitute this Privileged Cl^s 389»39o>393 369. Points to be considered in Nuncupative Wills ; distinguishing Testators Privileged and Unprivileged 393 370,371. Whether the Testament must be made z« £Kfr«/«ir . . 394 372. The Place of Making the Will 396 373> 374- The Manner of Declaring One's Disposition . . 397, 399 375. The Requisite Number of Witnesses to the WiU .... 399 376. Subsequent Reduction of the Nuncupative Will to Writing . 400 377. Strictness of Proof as to all Material Facts 401 378. Informal Writings, whether upheld as Nuncupative Wills . 401 379. Repeal or Alteration of a Written Will by a Nuncupative One, 403 PART IV. REVOCATION, ALTERATION, AND REPUBLICATION OF WILLS. CHAPTER I. REVOCATION OF WILLS. §380,381. Various Modes of Revocation; Modem Legislation affects the Subject 404, 405 382. Oral or Implied Revocation not recognized 407 TABLE OF CONTENTS. XXI PAGE § 383. Revocation by Burning, Tearing, Cancelling, Obliterating, etc 408 384. The Same Subject : the Intention to revoke must accompany the Act 408 385. Will destroyed, etc., unintentionally, to be established as it existed 410 386. Effect of Intention to revoke where the Act does not corre- spond 410 387. Burning, Cancelling, etc., must be by Testator himself, or under his Direction, etc 41 1 388. No Witnesses Necessary to the Burning, Cancelling, etc. . 413 389. 390. Destruction of a Will by Burning, Tearing, etc., illus- trated; English Cases 413,415 391,392. Cancelling, Obliterating, etc., illustrated; English Cases 415, 417 393, 394. Burning, Tearing, Cancelling, etc., illustrated ; American Cases 417, 418 I 395, 396. Incomplete Burning, Tearing, Cancelling, etc. . 419, 421 r 397. Revocation of a Part only of a Will by Destruction . . . 423 . 398. Difficulty where the Revocation depended upon Another Act, 425 399. Revocation, where Wills are executed in Duplicate . . . 427 : 400. Effect of Destroying, etc., Will, but not Codicil 428 40 1 . Presumptions, etc., where Will is found mutilated, defaced, etc., 428 402. Presumption, etc., where Will cannot be found 430 j 403. Declarations of the Testator in issues of Revocation . . . 432 404. Revocation by Subsequent Will or Codicil 433 405. Subsequent Will does not revoke unless duly executed . . 433 406. If Subsequent Will dispose inconsistently, it is enough . . 434 407. But Later Will does not revoke unless Inconsistent . . . 434 408. Intention to revoke must be Immediate, and not Prospective or Dependent 436 409. Inclination against Revocation ; Use of a Codicil .... 437 410. Revocation by Subsequent Will under a False Assumption of Facts 437 411. Two Wills of the Same Date, etc 438 412. Where Revoking Will cannot be found ; Proof of Revocation, etc. 439 413. Whether the Revocation of a Later Will can revive an Earlier One ' 440 414. The Same Subject : Present English Rule 441 415. The Same Subject : American Rule 442 416. Reference of Codicil to Either of Two Wills 444 417. 418. Express Revocation by Later Will, etc 444> 44^ 419-421. Express Revocation by Other Writing . . . 446,447,449 422. The Same Subject : Latest Legislation 449 XXU TABLE OF CONTENTS. PAGE § 423. Parol Evidence of Intention to revoke 45° ' 423a. No Revocation by an Instrument intended to Confirm . . 451 424. Revocation by Inference of Law ; Effect of Subsequent Mar- riage 451 42s, 426. Tiie Same Subject : Marriage and Birth of Child . 453, 455 427. Other Cases of Implied Revocation; Alteration of Estate, etc., 457 427a. Mental Incapacity, Fraud, Force, and Error, in issues of Revocation 459 CHAPTER' II. ALTERATION OF WILLS. § 428. The Word "Alteration"'; Alteration of Disposition or of an Instrument ; Partial Revocation 461 429. Alteration of the Instrument to be first considered ; Testator's Right to alter 461 430. General Right of Testator to alter 462 431. Intention should accompany ; Alterations which do not revoke, 463 432. Modern Legislation treats Informal Alterations with Disfavor, 464 433. The Same Subject : Effect of Alteration, etc., so as to render Illegible 465 434. Probate with or without Interlineations, etc 466 435. Presumption as to Time of Alterations, etc. ; Proof . . . 466 436. Alteration in a General Sense expressed by Codicil . . . 467 437. Codicil does not revoke Will except so far as Necessary . . 468 438 . Later Provisions, whether by Way of Substitution or Addition, 469 439. Whether Revocation of the Codicil takes Effect upon the Will ; and Vice Versa 470 440. Misrecital of Will in Codicil ; their Mutual Comparison . . 471 CHAPTER III. REPUBLICATION OF WILLS. §441. Republication defined ; Acts Express and Implied . ... 473 442,443. Express Republication ; Statutes requiring Re-execution or a Codicil, etc 473, 474 444. Implied Republication 475 445. The Same Subject : Oral Instances cited ....... 476 446. The Same Subject : Oral Revival after Revocation by Act of Law 478 447. Implied Republication by Codicil or Writing 479 448. General Effect of Codicil in reviving what was imperfectly executed 480 TABLE OF CONTENTS. Xxiii PAGE § 449. The Same Subject : FormerEfficacyof Republishing so as to dispose of After-acquired Property 480 450. Republication brings down Will to Date 482 PART V. WILLS UPON VALUABLE CONSli)ERATION. CHAPTER I. JOINT AND MUTUAL WILLS. 45 1 . Wills are Revocable, because of the Nature of a Gift . . . 484 452. But a Will may be upon Valuable Consideration and Irrevo- cable 485 453. The Rule of Valuable Consideration practically applied ; Leg- acies as Payment for Service, etc 486 454. Contract for a Certain WUl specifically enforced in Equity . 487 455. Joint or Mutual Wills 489 456. The Same Subject : Joint or Mutual Wills as to Probate . . 490 457. The Same Subject : Some Cases show Reserve and attempt Distinctions 491 458. A Will jointly executed which disposes only of One Person's Property is not a Joint Will 492 459. Where Probate must be delayed until Both or All Testators die, 492 460. Joint or Mutual Will conditionally expressed 493 PART VI. CONSTRUCTION OF WILLS. CHAPTER I. GENERAL RULES OF TESTAMENTARY CONSTRUCTION. 461. Modern Precedents many ; Deeds and Wills compared . . 494 462, 463. Rules of Testamentary Construction are of Limited Scope 49Sj 496 464. Difficulty of applying Rules of Interpretation 498 465. Construction aided or unaided by Extrinsic Evidence; flie Latter here considered 499 XXIV TABLE OF CONTENTS. PAGE § 466, 467. Cardinal Rule that Testator's Intention shall prevail, 499, joi 468. The Whole Will must be taken together 501 469. Language taken according to the Testator's Situation . . . 502 470. Technical Words ; how far controlled by Testator's Intent . 503 471. Technical Words not Necessary ; Words occurring more than once S°4 472. Words to be taken in Usual Sense, etc 504 473. Courts give Effect if Possible to All Parts of a Will ... 505 ^474. Later Clause, how construed with an Earlier One .... 505 475. General Description, whether limited by Particulars . . . 506 476. Regard paid to the Predominant Idea of the Will .... 506 J 477. Courts will change or mould Language so as to give Intention Effect 506 478. Treatment of Repugnant Parts 508 479. Favor to Heir or Next of Kin, considered 510 480. 481. The Same Subject: Favor to Children and Lineal De- scendants, etc 511, 512 482. The Same Subject : Deeper Principle favors what is Just and Natural 513 483. Devise without Words of Limitation ; Heir less favored than formerly 514 484. The Same Subject : " Estate," etc. ; Effect of a Charge, Gift over, or Trust 515 485. The Same Subject : Modern Statute Rule of Construction . 516 486. When a Will takes Effect ; After-acquired Property . . . 516 487. Codicil construed with the Will 51S 488. Some Effect should be given to a Will 520 488a. Effect of Will ; whether controlled by Change of Condition of Estate 520 489. Presumption of Compliance with Law; Legal and Illegal Provisions, etc 521 490. Presumption against Partial Intestacy 521 491 . By what Local Law Wills are interpreted 522 V 492. Summary : Mr. Jarman's Rules of Construction .... 523 CHAPTER II. DETAILS OF TESTAMENTARY CONSTRUCTION. § 493. Details to be considered ; as to the Property described in the Will 526 494. Descriptions relating to Real Estate ; Leaseholds .... 526 495. The Same Subject : Trust Estates and Mortgages .... 527 496. The Same Subject : Reversionary Interests 528 497. The Same Subject : Lands contracted for 528 TABLE OF CONTENTS. XXV PAGE I 498. The Same Subject : « Land " ; " Tenement " ; " Hereditament," 528 499. The Same Subject : " Messuage " ; " Premises " .... 529 500. The Same Subject : " House," " Mill," etc 529 501. The Same Subject : "Appurtenances" and Similar Expres- sions 531 502. Devise of a " Farm," " Freehold," etc 532 503. Devise of " Rents and Profits " ; " Use and Occupation," etc., 53^ 504. Descriptions relating to Personal Property ; " Mortgages " ; " Securities for Money," etc 533 505. The Same Subject : Gift of " Money " or « Moneys," " Cash," etc 534 506. The Same Subject : " Movables " 536 507. The Same Subject : Gift of Interest or Produce of Personalty, 537 508. Descriptions relating to both Realty and Personalty; "Goods"; "Chattels" 537 509. The Same Subject: "Effects"; "Possessions"; "Things," 538 510. The Same Subject : "Estate"; "Property" 539 511,512. The Same Subject: Miscellaneous Terms of Descrip- tion 540, 541 513. Description of Gift ; Devise; Bequest; etc 542 514, 515. Description of Gift; General Terms how far restrained by Particular Enumeration 543, 546 516. A False Description does not vitiate, etc 546 517. But Particulars may qualify a General Description .... 548 518. Repugnant Description; Language of Will not to be sub- verted 548 518a Real Estate with the Personalty thereon 549 519. Residuary Bequest of Personalty ; its Effect 550 520. The Same Subject: General Bequest of a Particular Residue, 552 521. Residuary or General Devise, and its Effect 552 522. Devise of Residue, etc., gives both Real and Personal Prop- erty 554 523. Residuary Bequest or Devise as to Intermediate Income . . 555 524. Residuary Bequest or Devise as to Gift of Proceeds of Sale, of Reversionary Interests, etc 556 525,526. Devises and Bequests in Execution of Powers . .557,558 527. Correction of Errors in describing Property 559 528. Object of Gift next to be considered 560 529-532. Gift to Children, etc., as a Class, how treated, 560, 562, 563, 564 533, 534. Words describing Object of Gift ; " Children," " Grand- children " 565, 567 535. " Issue," " Descendants," etc., as Objects of a Gift ... 570 536. Collateral Relatives as Objects of a Gift 571 537. "Relations," "Family," etc., as the Objects of a Gift ... 572 ll^li,\. i:3!&v!xg per Capita ox per Stirpes . . . 574,576,577)579 XXVI TABLE OF CONTENTS. PAGE i 542, 543. " Heirs " and " Next of Kin," as used in Bequests . 580, 582 544. "Representatives," " Executors and Administrators," etc., as used in Bequests 584 545, 546. Heir how far favored when Realty is undisposed of . 586, 587 547, 548. Meaning of " Heirs " as applied to Real Estate ; or where Real and Personal are blended 588, 589 549, 550. Devise of Lands, Estate, etc., in Fee 590, 592 551,552. Customary Heir ; Heirs Male of the Body, etc. . 593,594 553. Estates Tail in a Devise ; " Heirs " ; Shelley's Case . . . 595 554. The Same Subject : " Issue " 598 555. The Same Subject : " Children," etc 599 556. The Same Subject : Estates Tail not favored in the United States 600 557) SS8. Bequests of Personalty; whether Absolute or for Life 600, 601 558a. Gifts to Servants, Strangers, etc 603 559. Devise or Bequest ; whether Absolute or not 603 560. Life Estate and Remainder in Gifts ; Executory Devise . . 604 561. Devise or Bequest by Implication 606 562. Gift in General,, whether Vested or Contingent in Interest ( . 607 563. Beneficiaries : when ascertained 610 564. The Same Subject : " Dying without Issue," etc 613 565. Substitution, Survivorship, etc 614 566. Interest, whether by Way of Joint Tenancy or Co-tenancy ; Husband and Wife ; etc 617 CHAPTER III. EXTRINSIC EVIDENCE TO AID CONSTRUCTION. § 567. Admission of Extrinsic Evidence in General ; Rule applied to Wills 619 568, 569. Extrinsic Evidence to control, contradict, etc., Inadmis- sible 620, 622 570. Parol Evidence Inadmissible to change Rules of Construction, etc 623 571. Meaning of Words interpreted by Will ; Punctuation, etc. . 624 572. Extrinsic Evidence, how far Admissible to resolve what is Doubtful 625 573j 574- Extrinsic Evidence in Aid of an Equivocal Descrip- tion 626, 627 575. The Same Subject: Late English and American Cases com- pared 629 TABLE OF CONTENTS. XXVIl PAGE § 576. Conclusion as to Extrinsic Proof of Intent in Case of Doubt- ful Description 631 577. Reference to Context in Equivocal Description 632 578. Extrinsic Proof cannot aid to misconstrue 633 579. 580. Extrinsic Proof of Facts and Circumstances, not of In- tention, how far Admissible 634, 636 581. Latent and Patent Ambiguities in this Connection .... 637 582. Extrinsic Proof of Custom and Usage; Deciphering, Trans- lating, etc 639 583. Misnomer, Nickname, etc., corrected ; Subject or Object of Gift identified 639 584. Blank in a Will : Omitted Gift not inserted 642 585. Devise or Bequest to Children, etc 643 586. Parol Evidence to prove or repel a Resulting Trust . . . 643 587. Effect of Language in Will not to be varied 644 588. General Summary ; Failure of Gift notwithstanding Extrinsic Evidence ■ 645 589. General Summary ; Extrinsic Evidence always Admissible to aid in Right Interpretation 646 590. Sir James Wigram's Propositions stated 647 CHAPTER IV. MISCELLANEOUS PROVISIONS CONSIDERED. 591. Gifts sufficiently or insufficiently Certain 649 592-594. Uncertainty in Subject or Object ... 650, 652, 653, 655 595. Uncertainty in creating a Trust ; Precatory Trusts . . . . 656 596. Uncertainty in creating a Trust ; Gift for Specified Purpose . 659 597. The Same Subject : General Conclusion 661 598-600. Testamentary Gifts upon Condition Precedent or Subse- quent 662, 663, 666 601, 602. Special Conditions considered ; Restrictions upon Aliena- tion, etc 668, 670 603. Conditions in Restraint of Marriage 672 604. Condition as to Residence, assuming Name, maintaining Good Character, etc 675 605. Condition not to dispute the Will, etc 677 606. Conditions against Bankruptcy or Insolvency 679 607. Limitation, etc., distinguished from Condition 681 608. 609. Rights and Duties -of Testamentary Trustees . . . 681, 683 610. Trusts which are Invalid or liable to be set aside .... 684 XXVIU TABLE OF CONTENTS. APPENDIX. PAGE A. Leading Wills Acts, English and American 687 B. Forms of Wills 701 C. Suggestions to Persons Making their Wills 708 Index 713 Addenda 731 TABLE OF CASES. A. Section Section Alter's Appeal 62,460 Abbott V. Abbott 348 Ambre v. Weishaar 342 V. Bradstreet 563 American Bible Society v Marshall 24 Abney v. Millet 44S V. Price 149, '59 161, 201 Abraham v. Wilkins 303 . 306, 323 Ames Re '95, 207 Abrey v. Newman 541 Ames' Will Re '95 Acherly v. Vernon 447 487. 497 Amory v. Fellowes 351 Ackers v. Phipps 523 V. Meredith 526 Ackroyd v. Smithson 545 Anding v. Davis 454 Adair v. Adair 245 Andress v. Weller 126, 127 191, 218 Adams v. Adams 540, 561 Andrews v. Brumfield 526 V. Field 3«2, 325 V. Emmot 525 V. Norris 259, 365 V. Partington 53' Adams, Goods of 258 Andrews Re 118 207, 239 Addington v. Wilson 168 Angell V. Angell 551 Addy V. Grix 327 Anstee v, Nelms 583 Aikin v. Weckerley 174 176, 342 Anstey v. Dowsing 35' Ainsworth, Goods of 3" Anstice v. Brown 34 Albrecht v. Pell 57 Anstruther v. Chalmer 49' Alchin's Trusts 593. Anthony v. Anthony 21 Alder v. BeaU 540* Appel V. Byers 481, 534 Aldrich v. Gaskill 502, 516 Apperson v. Dowdy 4D2 Alexander v. Beadle 177, 178 Applebee, Goods of 398 Alford V. Earle 444 Appleby v. Brock 198, 201, 203 Allen V. Allen 353, 458. S39 Appleton V. Rowley 544 V. Bowen 518 Apreece v. Apreece 596 V. Griffin l 74, 322, 324. 328 Archer, Goods of 322 V. Jackson 22, 603 Archer's Case 552 V. Little 57 Archer v. Deneale 510, 550 V, Lyons 575 V. Mosse 223 V. Maddock 282 Arcularies v. Swett 571 V. Markle 535 Armani's Will 312 V. McPherson 219, 223, 248 Armitage v. Williams 53' V. School Fund 564 Armstrong v. Armstrong 237, 268, V. White 475, 514 273, 274, 312, 454, 487 Allen's Will 329, 342 ». Huddlestone 229 Allison V. Allison 26s, 324. 325, Arndt v. Arndt 309 329, 384 Arnett v. Arnett 374 Alpaugh's Will 323. 325, 347 Arnold v. Arnold 20, 514 Alsop V. McArthur 56 V. Brown 564 XXX TABLE OF CASES. Section Section Arnold v. Chapman 524 Baker v. Lewis 188 V. Eatle 42 V. Pender 477 Arrow v. Mellish 541 Baker's Will 248 Arrowsmith's Trust 437 Balcom v. Haynes 539 Arthur, Goods of 3" Baldwin v. Baldwin 342 Ashmore, Goods of 331 332 V. Parker 1 74, 229 239, 240 Ashton's Estate 542 V. Rogers 529. 530 Ashworth v. Carleton 36s V. Spriggs 426 V. Outram 52 Ballard v. Carter 427 Astor, Goods of 281 Baltimore v. Williams 26s Atcheson v. Atcheson 566 Bancroft v. Ives 20, 426 Atherton v. Crowther 539 544 Banks v. Goodfellow 67, 68, 74. 136. Atkins V. Kron 522 156, 158, 159, 165 188, 190 V. Sanger 19s Bannatyne v. Bannatyne 81, 91, 92, Atlee V. Hook S3 112 Attorney-General v. Jones 26s Baptist Church v. Robarts 393. 401 zi. Parnther 109 Baptist Convention v. Ladd 213a Attree v. Attree 5" Barber v. Barber 268, 297 Atwood V. Alford 596 Barber, Ex parte 504 V. Geiger 540 Barclay v. Maskelyne 410 V. Weems 28 497 Barden's Goods 295 Aubert v. Aubert 67 Barker v. Bell 442 Aubert's Appeal 4233 V. Comins 199, 218 Aulick V. Wallace 477 V. Greenwood 609 Aurand v. Wilt 268 342 Barker's Goods 270, 273 Austen's Goods 367 Barlow v. Bateman 604 Austen v. Graham '5' Barnaby v. Tassell 5«4 Austin V. Davis 454 Barnes v. Barnes 347 Aveling v. Association 512 V. Crowe 447 Avery v. Pixley 309 393 V. Patch S"o. 537 Ayrey v. Hill 124 127 V. Rowley 596 Ayres v. Ayres 84, 160, 326 342 V. Vincent 64 Ayton V. Ayton 530 Barnesly v. Powell 223 Axford Re 98 317 Barnett v. Blake Barney v. Arnolds 602 472. B. Barnhizel v. Ferrel Barraclough v. Greenhough 534 223 Babb V. Harrison 266 Batrett v. Buxton 126 Baddeley v. Baddeley 52 Barrington v. Tristram 534 Bailfey, Goods of 120, 308 Barry v. Butlin 170, 173, 179 245, 247 Bailey v. Hoppin 28 Barstow v. Goodwin 535 V. Patterson 563 Bartholomew v. Henley 265, 438 Bailey Ke 407 Barton's Estate 267, 288 Bain v. Lescher 529 Barton v. Collingwood 287 Bainbridge v. Bainbridge 5°5 z/. Tuttle 548 Baird v. Boucher 527 576 Basket v. Hassell 271 Baker's Appeal 281, 348, 5 '9 570 Baskin v. Baskin 325 326, 346 Baker v. Baker S12 535 Bassett's Estate Re 5". 592 V. Batt 77 Bateman v. Pennington 258, 287 V. Denning 303 Bateman's Trust Re 33 V. Farmer 520 Battle V. Speight II TABLE OF CASES. XXXI Section Sectioa Batton V, Watson *So. 384. 385 Bettison v. Bromley 354 Bauskett v. Keitt 402 Betts V. Harper 457. 459 Baxter v. Abbott 174. 175. 180, 192, Bibb V. Thomas 390. 395 199, 204, 205 206 Bibbens v. Potter 592 V. Bowyer 478 Bice V. HaU 198 Bayley v. Bailey 8, 252 296 418 Biddulph V. Hole 440 Beadles v. Alexander 348 V. Meakin 499 Beales v. Crisford 5°5 Bigelow V. Gillott 397, 430 V. Storm 56 Bilke V. Roper 59 Beall V. Cunningham «9S, 281 448, 487 Billinghurst v. Vickers 250 V. Mann 247 Billings' Appeal 209 Bear v. Bear 5'6 Bills V. Bills 595 Beaty v. Beaty 266 V. Putnam 488 a Beatty v. Lalor S°S Birch V. Birch 435 V. Universalist Society 583 Bird V. Bird 134, 136, 239 Beaubien v. Cicotte '75. 198. 201, 203, V. Pope 454 208, 209, 236. 240, 242 243 BirdsaU v. Hewlett 562 Beauclerk v. Dormer 564 Birks V. Birks 384.385.4" Beaumont v. Fell 574, 575. 580 Bishop V. Bishop II V. Keim 415 V. McClelland 490, 561 Beckett v. Harden 437 V. Wall 52 V. Howe 321 Bizzey v. Flight 281 Beckett Re 326 Sis Black V. Ellis 191 Bectine v. Hodgson 523 V. Hill 575 Beebe Re 275 V. Richards S18, S74. 583 Beekman v. Bonsor 21 ,S'9 V. Shreeve 277 Behrens v, Behrens 402 Blackborn v. Edgley 500 Beirne v. Beime 524 Blackburn Re 299 Belasyse v. Lucan 502 Blackley v. Webb 540 Bell TJ. Fothergill 401 Blackwell v. Bull 537 V. McMaster 203 Blackwood v. Darner 216 V. Smalley 566 Blagge V. Miles 467, 480, .526 Bellairs v. Bellairs 603 Blagrave v. Blagrave 609 Bender v. Dietrick 479 Blaine v. Chamber SCO Bengough v. Edridge 21 Blaisdell v. Hight 509 Bennett v. Bachelor 514 Blake v. Hawkins 466, 526, 579 V. Bittle Soo V. Rourke 116 V. Jackson 373 V. Stone 553 V. Marshall 577 Blake's Trusts 561 V. Sherrod 387 401 Blakemore's Succession 4D1, 427 Benoist v. Murrin 67, 83, 144 '59 160 Blakey v. Blakey 195 227, 229, 244 Benson v. Benson 384 392 Blakely's Will Re '59. 163, 193 Bent's Appeal 249 Blanchard v. Blanchard 386, 394. 395 Bentley v. Kaufman 558 V. Nestle 230 Benton v. Benton 514 Bland v. Bland 470 V. Scott 195 v. Lamb 5'9 Bernal v. Bernal 55' Blann v. Bell 503 Berry v. Berry 533 Bleckley, Goods of 439 Besancon v. Brownson 405 Bledsoe v. Bledsoe 229 Best V. Best 127 Bleecker v. Lynch 132 136, 137, 230 Bethel v. Moore 393 Blewitt Rt 434 xxxu TABLE OF CASES. Section Section Blewitt V. Roberts 507 Bradford v. Bradford 60s Blodgett V. Moore 424 V. Foley 562 Blood's Estate 201 Bradish v. Gibbs 54 Blouin V. Phaneuf 512 V. McClellan 416 Blue V. Patterson 223 Bradlee v. Andrews 537 Boardman v. Woodman 159. 162, 174. Bradley v. Cartwright 554 175, 180 184, 200 ,211 V. Gibbs 437 Bobb's Succession 406 V. Westcott 558 Boehm's Goods 219 Brady v. Cubit 426, 446 Boell V. Schwartz 218 V. McCrosson 297 Bogart Re 327 Braham v. Burchell 445.448 Bohanon v. Walcott 415 Brainerd v. Cowdrey 579 Boldney v. Parris 342 Brand Re 38s Boling V. Boling 265 Brandon v. Robinson 606 BoUes V. Harris 37S. 376. 377 Brant v. Virginia Coal Co. 559 Bolman v. Overall 454 V. Wilson 407. 437 Bolton Re 22 Brasher v. Marsh 595 Bond Re S95 Bond V. Seawell 337 Boofter v. Rogers 268, 378 Bool V. Mix 483 Booth V. Kitchen 239, 243 Bootle, Goods of 295 Borden v. Borden 397, 430 Born V. Horstman 604 Bosley v. Bosley 427, 463, 482, 546 Boston Co. V. Coffin 490 Botsford V. Krake 367, 378 Bott V. Wood 348 Boughton V. Knight 67, 77, 83, 147, 149. 156, 158. 165 Bourke v. Wilson 326 Bowen v. Allen 518 V. Johnson 427 V. Payton 503 Bowers v. Porter 542 Bowes V. Bowes 447, 487 Bowes Re 570 Bowman Re 565 Boyce v. Boyce 599 Boyd ». Cook 98,317.395 V. Eby 74, 159, 187 V. Latham 490 V, Strahan 559 Boydell v. Golightly 563 Boyes v. Cook 526 Boylan v. Meeker 193, 241, 405 Boys V. Morgan 520 Boyse v. Rossborough 68, 227, 228, 232, 236, 239 Braddock, Goods of 335, 336 Brattle Square Church v. Grant 524 Brawley v. Collins 510 Braybroke v. Inskip 495 Brearley v. Brearley 482, 578, 589 Breatwitt v. Whittaker 454 Breaux v. GuUusseaux 259 Breed v. Pratt 81, 246 Brent v. Washington 563 Brett V. Brett 318 V. Horton 540 Brewer v. Baxter 268 Brewster Re 392 Bridge v. Abbot 544 Bridwell v. Swank 246 Brigham v. Shattuck 524 V, Winchester 29 Brimmer v. Sohier 486, 487 Brinckerhoff v. Remsen 347 Brinkman v. Rueggesick 67, 72, 194 Brinton's Estate 161 Bristed v. Weeks 188, 246 British Museum v. White 321 Broach v. Sing 373 Broadhead v. Wiltse 210 Broadus v. Rosson 289 Broadway National Bank v. Adams 602, 606 Brock V. Luckett no, 1 17, 119 Broderick's Will 223 Brogden v. Brown 77, III, 114, 122, 189 Brokaw v. Hudson 544 Brook V. Chappell 379 V. Turner 48 Brooke v. Brooke 52, 53 TABLE OF CASES. XXXIU Section Section Brooke v. Kent 433 Bullock V. Downes 543. 563. 56^ V. Townshend 1 84, 198, 201, 203 V. Seymour 564 V. Turner SOS, S08 Bundrick v. Haygood 373. 375 Brooks V. Barrett 175, 184. 186, 198 Bundy v. McKnight 70, 329, 342 Brooks's Estate 201, 246 Bunyard v. McElroy 243 Broome v. Monck 28 Burbank v. Whitney 24 Brotherton v, HelUer 44S Burden's Estate 406 Brotzman's Appeal 603 Burdett v. Hopegood 25 Brough Se 437 Burford v. Burford 304 Broughton Re 606 Burge V. Hamilton 434 Brounker v. Brounker 250 Burger v. Hill 69 Brower v. Fisher 94. 9S Burges v. Thompson 553 Brown v. Bartlett 466 Burgess v. Burgess 437. 453 V. Beaver 256 V. Vinicome 357 V. Betts 10 Burgoyne v. Showier 401 ». Boyd 496 Burke v. Anis 484 V. Brown 374, 402, 412, 414, Burkhart v. Gladish 161 570. S7S Burley v. McGough 207 V. Clark 281, 329, 347. 424. 443. Burls V. Burls 402 446,447 Burnham v. Burnham 604 V. Cogswell Si° V. Comfort 427 V. Higgs 519, 561 Burns v. Burns 384, 402 V. Mitchell 201, 239 V. Travis 422 V. Moore 19s. 231 Burnside's Succession 520 V. Riggin 68, 73 .76. 118, 186, Burritt v. Silliman 354 204, 209 Burroughs v. Nutting 49 V. Saltonstall 500, 568 Burrows v. Burrows 120, 173, 186 V. Selwin 568 Burt V. Herron 595 V. Shand 265 Burtenshaw v. Gilbert 384. 398 V. Taylor 513 Burton v. HoUey 54, 57. 60 V. Thorndike 398, 408, 417, 420, V. Newberry 447 421, 466 V. Powers 484 V. Ward 159, 168 V. White 484 Brown Ex parte 430 Burwell v. Mandeville 470 Brown Re 407. 49S Bush V. Bush 243. 244 Brown's Will 397 V. Lisle 126 BrowneU j/. De Wolf 407 437. 449 Bushnell's Goods 218, 219 Brozby's Appeal S63 Butler V. Benson 305 Branson v. King 263 V. Gray 561 Brunt V. Brunt 384 V. Little 483 Brush V. Wilkins 42s V. Stratton 538, 540 Bryan v. White 346 Butterfield v. Haskins 532 Bryce, Goods of 310 Buzbey's Appeal 563 Buchanan v. Lloyd 407 Byers v. Hoppe 256, 264 265, 267, 348 V. Turner 54, S7 Bynum v. Bvnum 342 Buckell V. Blenthome 51 Buckle V. Buckle 318 C. V. Fawcett 565 Buckley v. Gerard 58s Cadmus v. Oakley 348 Budlong's Will 241 Caldecott v. Johnson 525 Bull's Will 491 Caldwell v. Renfrew 57, 60, 63 XXXIV TABLE OF CASES. Section Section CaldweU v. Willis 477 Chambers v. McDaniel 281 Callow V. Callow 5°4 V. Minchin 568 Calvin v. Fraser 402 V. Queen's Proctor 112, 120 Cambridge v. Rous 519 V. Taylor 552 Camp V. Stark 262, 353 Chandler v. Barrett 67 IIO, 112 Campbell w Campbell 68, 80, 365. 566 V. Ferris 184 232, 247 V. Carnahan 242 Chaney v. Bryan 159. 161 V. Foster 606 Chapman v. Chapman S'4 V. French 410, 417, 427 a Charge v. Goodyer 536 V. Prescott S'4 Charlton v. Hindmarsh 328, 330 V. Rawdon 548, 563 Charter v. Otis 483 Campbell's Trusts 54° Chase v. Kittridge 303, 323 327. 328 Canada's Appeal 193, 243. 323, 324 V. Stockett 494. S'z Candy v. Campbell 564 V. Winans 194 Canedy v. Haskins 552 Chasmar v. Bucken 529 Canfield v. Bostwick 486, 568 Chatham v. Toothill 557 Cannan v. Appersoa 557. 603 Chaworth v. Beech 265 Card V. Grinman 402 Cheatham v. Hatcher, 204, 205, 209, 245, Carey v. Baughn 443. 445. 446 326, 329 347. 348 V. Dennis 265, 266 Cheese v. Lovejoy 389 Carey Re 424,446 Cheney v. Salman 583. 585 Carle v. Underbill 263 Chew's Appeal 605 Carlton v. Carlton 352 Child V. Elsworth 571 Carnagy v. Woodcock 512 V. Wright 484 Came v. Roche 547. 548 Childers v. Childers 557 Carpenter v. Hatch 242, 244.24s Chrisman v. Chrisman 68 Carr v. Estill 555 Christie v. Phyfe 466, 477 Garr's Estate 60s Christmas v. Whinyates 401, 430 Carroll v. Bonham 369. 37' Christopher v. Christopher 425 V. Carroll II Christy v. Badger 518 Carter v. Dixon 163, 245 Church V. Church 529 V. Lowell 540 ■u. Mundy 496, 524 V. State 210 Churchill v. Marks 602 Cartwright z. Cartwright 78 . 79. 1 10, Cilley V. Cilley 174 198, 326 112, 113, 187, 188, 189 Clapp V. FuUerton 159, 163, 198, 200, Cary v. Abbott 21 208, 229 Casement v. Fulton 321. 327. 345 Clark V. Atkins 512 Casmore, Goods of 3" V. Clark 569 Casson v. Dade 341 V. Ehorn 420 Castle V. Torre 216, 266 V. Ellis 122 Casther's Appeal 533 V. Fisher 223, 229 Catholic Assoc, w. Fiinane 20 V. Morrison '95 Caton V. Caton 454 V. Mosely 469 Cattrall, Goods of 315 V. Smith 393 Cavenaugh v. Ainchbacket 57 V. Stansbury 240 Cavett's Appeal 304 V. State 207 Caw V. Robertson 599 V. Vorce 353 Cawthron, Goods of 287 Oarke v. Blake 20 Chaffee v. Baptist Convention 346 V. Boorman 463, 464 Chamberlain v. Owings 484 V. Butler 437 Chamberlayne v. Chamberlayne 551 V. Dunnavant 347 TABLE OF CASES. XXXV Section SecttoQ Clarke v. Hyman S°9 CoUyer v. Collyer 402 V. Lear U2, 113 Colt V. Colt 438 V. Scripps 389, 397> 401, 430 V. Hubbard 562 Clarke, Goods of 307. 3«o Colton V. Colton 595 Clarke's Appeal 57 Coltsman v. Coltsman 550 Clarkson v. Clarkson 384 Colvin V. Warford 193. 415 Clary v. Clary 201, 207, 21 1 Colyer's Goods 273 Clayton v. Qayton 483 Combs V. Jolly 272, 312, 323, 328 V. Livermore 456 Comer w. Comer 274, 277 a Qeaver v. Cleaver 537 Commonwealth v. Rich 205 Cleland v. Waters 477 V. Rogers 211, 212 Clement w. Cheeseman 271 V. Sturtevant 199, 210 Clements v. Collins 500 Compton V. Collinson S3 V. Horn 427 ■V. Pierson 57 Qementson v. Gandy 587 Comstock V. Adams »9 Cleveland v. Spilmaji 483 V. Hadlyme 184, 218, 243 ai£ford V. Koe 533 Conboy v. Jennings 312, 346 Cline V. Lindsey 68, 201 Conely v. McDonald 188 Clingan V. Micheltree 268 Congregational Society v. Hatch 593 Clough V. Clough 424 Conrad v. Long 22, 599. 604 Clowes V. Clowes 5«9 Constable v. Tufnell 233 Cochran's Will no Constantine v. Constantine 478 Cock V. Cooke 264, 269, 273 Converse v. Converse 67,92 Cockrill V. Cox 140 Convey's Will 323 Coffin V. Coffin 231 245 326, 329 Conway's Will 312 Coffinan v. Coffinan 294 Cook V. Catlin 539 V. Hendrick 77. 239 V. Cook 535 Cogdell V. Cogdell 444. 445. 449 V. Danvers 583 Coghjan v. Coghlan "3 V. Holmes 483 Cogswell V. Armstrong 521 V. Lambert 316 Cohen's Will 312 V. Oakley 5'4 Coit V. Patchen 164, 229 V. Parsons 3" Colberg, Goods of 396 V. Weaver 468 Colberg Jie 390 V. Winchester 343 Cole V. Society 454 Cook lie 394 ■V. Wade 478 Cooke V. Cholmond«ly 81 Cole's WUl »S9 160, 163 V. Turner 605 Coleman v. Robertson 67, 188 Cookson V. Hancock 417 Coles, Goods of 262, 269 Coombs V. Queen's Proctor 53 Coles Re 269 Cooper V. Bockett 321, 322, 401, 435 Coles V. Mordaunt 363 V. Hepburn 530 V. Trecothick 255.3" V. Macdonald SI Collagan v. Burns 403 Cooper, Goods of 287 Collett 7J. CoUett 599 Cope V. Cope 594 Collier v. Collier 542 Coppin V. Dillon 216, 400, 439- V. Grimesey 503 Corey v. Corey 559 V. Simpson 307, 2IO Corlass Jie 537 CoHigan v. McKeman 412 Cornell v. Lovett 22, 603 Collins Ke 326, 335. 336 Cornell University Case 24 Collins V. Wakeman 545 Cornwell v. Isham 354 CoUisoa V. Girling 497 V. Ricker 84,227 XXXVl TABLE OF CASES. Section Section Corr V. Porter 443. 447. 449 Cruikshank v. Ghase 592 a Corrigan v. Kiernan 468 Crum V. Thornley 74 Coryton v. Helyar 479 Guffee V. Milk 551 Cotter V. Layer 46 Culver v. Haslam 200 Cotton V. Cotton 544 Gumming v. Gumming 265, 268 V. Scarancke 536 Cummings v. Gummings 537 V. Smithwick 575 Cunningham v. Cunningh am 426 V. Ulmer 74, 159. 174 Cunningham Re 402 Cottrell Re 346, 347 Curtis V. Longstreth 553 Couch V. Couch 194 Gushing V. Aylwin II V. Eastham 218,317 a Gutbbertson's Appeal 245 Coulam V. Doull 20 Cutter V. Butler 49. 5°. 54 Coulson V. Holmes 427 V. Doughty 534 Covenhoven v. Schuler 478 Gutto V. Gilbert 407, 412 Cover V. Stem 268, 277 a Coward Re 53 D. Cowley V. Knapp 265 Cox V. Bennett 516, 574 Dabney v. Cottrell 505 V. Britt 477 Dadd, Goods of 387 Cozzen's Will 303, 305 Daintree v. Butcher 322 Craig V. Leslie 23. 34. 35 Dale V. Dale 245 Craighead v. Given 519 V. Wliite 562 Grain v. Grain 268 Dale's Appeal 192, 195, 229, 239 Cram v. Cram 201, 203 Dalton V. Scales 473 Cramer v. Gnunbaugh 23?. 245 Dalrymple v. Gamble 486 Crane v. Gowell 565 Damon v. Damon 286, 288 Cravens v. Faulconer 323 Damson v. Bibber 490 Crawford v. Forshaw 592 a Dan V. Brown 394 V. Redus 540 Dana v. Burke 5183 Credy v. Ostrander 218 Dane v. Walker 534 Gresswell v. Gresswell 23. 354 Daniel v. Hill 268 Grichton v. Symmes 514 V. Nockolds 445 Gripps V. Wolcott 565 V. Whartenby 470. 553. 554 Criswell's Appeal 553 Daniels, Goods of 282 Crocker v. Chase 193, 242, 244 Darkin v. Darkin 52 Crockett v. Crockett 557 Darley v. Martin 440 Croft V. Croft 346 Darlington v. Pulteney 456 V. Day 245 Dashwood v. Bulkeley 603 Crofts, Goods of 5' Dauterive's Succession 352 Croker v. Lord Hertford 281 Davenport v. Hanbury 535. 538 Crone v. Odell 478 Davers v. Dawes 519 Crook V. Hall 532, 534 David's Trusts Re 525 V. Whiteley 536 Davies v. Davies 544 Crookenden v. Fuller 299 Davies, Goods of 329 Cropley v. Cooper 562 Davis V. Angel 599. 603 Grosbie v. Macdoual 447. 450 . V. Bennett 540 Grossman v. Grossman 411 V. Boggs 478 Crossthwaite v. Dean 410 V. Calvert 77, 227, 229, 231, Growell v. Kirk 212 232, 233, 234 Crowley v. Crowley 323 V. Davis 253. 565 Crowninshield I/. Growninshield 174, 175 V. Hendricks 453. 454 TABLE OF CASES. XXXVU Section Section Davis V. Rogers 98, 18s, 247 Denny v. Kettell 565 V. Sigourney 402 V. Pinney 326 V, State 210 Denson v. Beazley , 160 V. Togle 426 Denton v. Franklin 325 V. Williams 2SS Derickson v. Garden 562 Davis Re 321 Deupree v. Deupree 347. 426 Davy, Goods of 217, 219, 277 Devecmon v. Devecmon 270 Davy V. Smith 341 Devisme v. Mello 530 Dawes v. Swan 473 Dew V. Barnes 477 Dawson v. Clarke S45 V. Clark 74, «43. "55. 157 V. Dawson 270 Dewey v. Dewey 324 V. KiUet 562 Dewitt V. Barley 198, 200 V. Oliver-Massey 22, 53'. 603 Dewzer v. Gordon 378 Day V. Day 98, 174 247 317. 596 Dible's Estate 540 w.Trig S16 Dickenson v. Blisset 95 Day, Ex parte 454. 456 V. Dickenson 258 De Beauvoir v. De Beauvoir 547 Dickerson's Appeal 29. 495 De Kay v. Irving 470 Dickie v. Carter J93 De Levillain v. Evans 25 Dickinson v. Dickinson 58. 355 De Rosaz Ke 584 V. Hayes 249 De Trafford v. Tempest 520 •u. Moss 231 De Vaughn v. McLeroy 560, 562 V. Stidolph 283, 447 De Witte v. De Witte 557 V. Swatman 414 Deakins v. HoUis 261 Dickson's Trust 605 Dean v. Dean 326 Diehl's Appeal 558 V. Gibson 514 Dietrick ». Dietrick 230, 242 V. Negley 229, 236 Diez Re 456, 457 Deane v. Littlefield 40,42 Dill V. Dill 473 Deave's Estate 402 Dimes v. Dimes 122 Decker v. Decker 29 505. 574 Dixon Re 566 Deford v. Deford 521 Dixon's Appeal 345 393. 431, 432 DelaHeld v. Parish 68, 69, 70, 71, 80, Doane v. Hadlock 432 174, 17s, 176,188,233 245 386, 394 V. Lake 20 Delameter's Estate 505 Dobson, Goods of 287 Delaney v. Salina 68,70 Dockrum v. Robinson 373. 374. 378 Den V. Crawford 488 Doe V. Allen 241 V. Drew 510 V. Barford 425 7). Johnson 83 V. Burdett 326 V. Milton 328 •u. Considine 560 V. Zabriskie 542 V. Cross 269, 270 Denby Re 598 V. Edlin 427 Dench v. Dench 258 V. Evans 410 Denison's Appeal 243 V. Hardy 241 Denn v. Mellor 461, 55° V. Harris 390, 395. 396 V. Roake 525 V. Hersey 351 Denne v. Wood 357 V. Hicks 417 Dennett v. Dennett 551 V. Hull 28 V. Hopkinson 512 V. Laming 466, 552 Dennis v. Weekes 201 V. Lancashire 425 Dennis, Goods of 447 V. Nichols 609 Denny v. Barton 265 V. Palmer 435 XXXVIU TABLE OF CASES. Section Section Doe V. Pattison 309 Duffield V. Robeson 70, 186 V. Perkes 390. 396 Dufour V. Pereira 456 V. Priggs S6S Dugdale Jie 602 V. Roe 575 Du Hourmelin v. Sheldon 34 V. Staple 424 Dumond v. Kiff 140 V. Toefield 5" Duncan v. Harper 535 V. Walker 487 Dunham's Appeal 74, 159 , 201, 203 V. Watson 477 Dunlap V. Dunlap 449. 486 Doker v. Goff 318 V. Garlington 557 Dominick v. Michael 64 Dunlap's Appeal 20 Donaldson, Goods of 366 Dunn's Appeal 64 Donegan v. Wade 60s Dunn V. Bank of Mobile 26s Donnely Jie 22, 23, 237 V. Dunn 59 , 334. 443 Donohue v. McNichol 562. 563 Durant v. Friend 534 Doody V. Higgins 542 Durham v. Smith 70 Dooling V. Hobbs 533 Durour v. Motteux 524 Donnan Re 161 Dye V. Young 243 Domick v. Reichenbach 69 Dyer w. Dyer 119, 186 Dome's Succession 365 V. Erving 435 Dorsey v. Warfield 203 Dyer Re 258 Dotts V. Fetzer 244 Douce, Goods of 310 E. Dougherty v. Dougherty 288, 289 V, Rogers 575 Earl V. Rowe 503 Dove V. Torr 563 Eales V. Cardigan 566 Dow V. Dow 513 Early v. Early 387 Dower v. Seeds 387, 402 Easterbrooks v. Tillinghast 545 Down V. Down S16 Easteriey w. Keney 606 Downey v. Murphey 245. 247 Eastis V. Montgomery 227 243, 246 Downie's Will 342 Easton v. Seymour 367 Downing v. Bain 479 Eastwood V. Lockwood 477 V. Marshall 24, 529 Easum v. Appleford 520 Drake's Appeal 245, 246 Eberts v. Eberts 570 Drake v. Drake 594 Eby V. Eby ,542 Drant v. Vause 497 Eccleston v. Petty 341 Drew V. Drew 516, S17. 574 i Eckert v. Flowry 203, 229, 232 V. Wakefield 519. S2I. 537 Eddey's Appeal 200, 209 Drewry v. Barron 549 Edge V. Edge 126, 140 Drinkhouse's Estate 161 Edmonson v. Bloomshire 512 Drummond's Goods 295 Edwards's Appeal 426 Drummond v. Leigh 534 Edwards v. Smith 265, 270, 276 V. Parish 367 Eeles, Goods of 398 Duane, Goods of 219, 250 Ehle's Will S18 Duddy V. Gresham 603 Ehrman v. Haskins 516 Dudley v. Mallery 265 Ela V. Edwards 314, 324, 327. 337. Duffs Goods 280 346.347 Duffie V. Corridon 328 Elkinton v. Brick 191 Duffield V. Duffield 437. 523, 562 Elliot's Will 69, 230 V. Elwes 447 Elliott V. Elliott 534 V. Morris 120, 125, 126, 189, 191, Elliott Re 21 198, 204 205. 229, 24s Ellis V. Gary 453. 454 TABLE OF CASES. XXXIX Section Section Ellis V. Darden 424 Farnham v. Baker 60s V. Ellis 199. 599 Farr v. Thompson 229 V. Houston 534 Faust V. Birner 522 V. Smith 321, 327 Faux Re 356 Elmesley v. Young 543 Favircett v. Jones 216, 219 Elms V. Elms 390, 396 Fear v. Williams 393 Elwee V. Ferguson 186 Fee V. Taylor 174 Emerson v. Boville 42s Fellows V. Allen 401, 424 Emerson, Goods of 303, 309 Feltman v. Butts 470 Emery v. Neighbor 49.54 Fenn v. Death 533 V. Wason 507 Fenwick v. Chapman 467 Emery Re 532 Ferguson v. Hodges S2I Emmert v. Hays 57. 516 V. Stewart 542 Enders v. Tasco 595 ■V. Zepp 47° English, Goods of 277 Ferrer v. Pyne 540 Ennis v. Pentz 537 Ferry v. Smith 478, 488 a V. Smith 509 Ferry's Appeal 477 Epps V. Dean 427 Fetherstone v. Fetherstone 553 Errickson v. Fields 188 Fettiplace v. Gorges S' Eschbach v. Collins 397. 432 Fidelity Trust Co.'s Appeal 426 Este V. Este 64 Field's Appeal 177 Estep V. Morris 358 Finch V. Finch 402 Esterbrook v. Gardner 77 Fincham v. Edwards 98, 99. 317. 343 Etchison v. Etchison 342 Findlay w. Riddle 553 Eustace, Goods of 60 Finelite v. Sinnott 5'7 Eustis V. Parker 350 Finlay v. King 598, 600 Evans's Appeal 314, 393, 403, 420 Fiott V. Commonwealth 35 Evans v. Crosbie S" Firth V. Denny 5"9 V. Evans 427 0, 436, 437 Fisher's Goods 269, 27s V. Field 519 Fisher v. Hepburn 514 V. Godbold 542, 563 V. Kimball 49 V. Hudson 478 V. Skillman 539. 540 V. Jones 535 Fisher Re 406 V. Lauderdale 268 Fitzpatrick v. Fitzpatrick 220 V. Smith 26s, 456. 457 Fleming v. Boiling 523 Evens v. Griscom 517 V. Fleming 407 Everhart v, Everhart 304 Flinn v. Owen 327 Ewen V. Franklin 337 Flintham v. Bradford 415 Eyre v. Storer 491 Flood V. Pragoff 324 Florey v. Florey 146, 159, i 63, 230, 248 F. Floyd V. Floyd 386, 407 Foot V. Stanton 118 Fabens v. Fabens 547 Forbes v. Gordon 287 Fairchild a. Bascomb 204, 20s, 208, Ford V. Ford 331. 384 212, 244 V. Teagle 402 V. Bushnell 535 Forman's Will 384 Fairfax v. Brown 559 Forney v. Fennell 195 V. Hunter 35 Forth V. Chapman 564 Fane, Ex parte 48,64 Foss V, Crisp 35 Farish v. Cook 522 Fosselman v. Elder 267 Farmer v. Kimball 540 Foster's Appeal 402 xl TABLE OF CASES, Section Section Foster v. Foster 402 Gardiner v. Frieze 243 V. Holland 562 &. Gardiner 185, 227, 396, 434 Fountain v. Brown 238 Gardner v. Gardner 126, 127, 229, 236 Fourdrin v. Gowdey 34 V. Heyer 534 Fowler v. Fowler S°S ■ii. Lamback 159 V. Lewis 210 V. Merritt 25 Fox V. Marston 426 Garrand's Estate 585 V. Phelps 486 Garrett v. Dabney 46 Fox's Will 24 V. Garrett 486 France's Estate 594 Garrick v. Camden 543 Francis v. Grover 391 Garrison v. Garrison 178, 182, 183, Frank v. Chapman 335 203, 209 Franks, Ex parte 53 Gass V. Gass 72. 159. 337 Fransen's Will 446 Gawler v. Standerwick 223 Frary v. Gusha 120, 204 Gay V. Gay 394. 403 Fraser, Goods of 64, 296, 422 V. Gillilan 238 Fraser v. Hamilton 522 Gaze V. Gaze 307. 321 V. Jennison 190, 192, 193 Geale Re 97 Frazer Ee 512 Gehrke v. State 200 Frear v. Williams 1 76, 178.247.384. Genery v. Fitzgerald 523 393 George v. Bussing 49 Frederick's Appeal 265, 268 V. George 249 Freed v. Clarke 268 George III., Goods of 37 Freeman v. Coit 475. 5 '4 Gerrish v. Nason 174. 175. 245. 330 V. Freeman 371, 409, 412 Gibbes v. Holmes 495 French v. French 288, 289, 290 Gibbins v. Shepard 595 Frink v. Pond 353 Gibbons v. Caunt 425 Frith Re 331 V. Fairlamb 542, 544 Fritts V. Denemberger 239 Gibson v. Dooley 22 Fritz V. Turner 305. 306 V. Gibson 127, 193. 198, 201, 203, Frogley v. Phillips 536 205, 207, 440 Frost V. Wheeler 126, 213 a V. McCall 24 Fuguet's Will 258 Giddings v. Turgeon ".355 Fulkeson v. Chitty S°5 Gifford V. Dyer 218, 410 Fulleck V. AlUnson 163 V. Thorn 562 Fuller V. Hooker 7 Gilbert v. Knox 326. 329 u. Hooper 436 Giles V. Giles 396 Fulton V. Harmon 553 V. Warren 384. 389. 396, 401 Funk V. Eggleston 526 Gill V. Bagshaw V. Pearson 592 602 G. V. Shelley Gillett V. Wray 534 599 Gable v. Daub 11.442 Gillow V. Bourne 266 Gafney v. Kenison 502 Gilmer v. Stone 573. 583 Gage V. Gage 265, 273 Gilpin V. Williams 490 Gaines v. Chew 223 Gilreath v. Gilreath 230, 23s V. Lizardi 255 Ginder v. Farnum 314 Gaither v. Gaither 236 Girard v. City of Philadelphia 29, 486 Gamboa's Trusts 563 Gittings V. McDermott 542 Gangwere's Estate no, 119 Given v. Hilton 490 507 510, 514 Gardiner v. Courthope 439 Givin V. Green 348 TABLE OF CASES. Xli Section Section Glancy v, Glancy 312 Green v. Pertwee 519 Glass V. Hulbert 586 V. Skipworth 259 Glasscock v. Smither 420 Greenough v. Cass 466 Gleespin's Will 229, 238 V. Greenough 304. 306 Glifton V. Murray 98 Gregory v. Smith 537 Gloucester v. Wood 545 Greenwood v. Cline 168 Glover v. Hayden 239, 242 ■u. Greenwood 68 V. Spendlove 524 V. Rothwell 554 Glynn v. Oglander 272 Greenwood's Case 161 Goble V. Grant 78, 1 10, 187, 188, 189 Greig, Goods of 439 Goddard v. Amory 536 Greig Re 283, 439 Godden I/. Burke 118, 120, 186, 256 Gresley v. Mousley 28 V. Crowhurst 606 Greville v. Tylee 401, 435 Godfrey v. Humphrey 55° Grieves v. Rawley 535 Goebel v. Wolf 562 Griffin v. Griffin 255 Gold V. Judson 486 Gombault v. Public Admr. 78, 95, 96, 109, no, 112, 113, 114, 115, 119, 122, 189 Gooch V. Gooch 512 Goodright v. Harwood 412 V. Glazier 413, 415 V. Opie 521 V. White 548 Goodsell's Appeal 382, 424 Goodtitle v. Herring 553 V. Southern 574 V. Welford 351 Gord V. Needs 573, 577 Gordon v. Hoffman 409 Gossling's Goods 422 Goss V. Lord Nugent 568 V. Tracy 223 Gough V. Findon 257, 269 Gould V. Mansfield 454 V. Safford 367, 373, 375, 376, 378 Gourley v. Thompson 490 Graber v. Haaz 348 GrabiU v. Barr 281 Graham, Goods of 59, 64 Graham v. Birch 387, 395, 427 a V. Graham 312, 342, 527, 568 V. Lee 600 Grant v. Grant 41 Grantley v. Garthwaite 391, 393 Gray Re 592 Graydon v. Graydon 603 Greated v. Created 521 Green's Appeal 536 Green v. Crane 325 V. Dunn 521, 546 Griffith V. Diffenderffer 225, 226, 243 Griffiths V. Griffiths 334 Grimes v. Smith 522 Grimke v. Grimke 49 Griscom v. Evens 502, 517 Groom v. Thomas 173 Grove v. Spiker 246 Grubbs v. Marshall 327 w. McDonald 174,176,306,309,434 Gryle v. Gryle 321 Guardhouse v. Blackburn 217, 219, 221 Gugel V. VoUmar 422 GuUan Re 389 Gulliver v. Ashby 600 Gundry v. Pinniger 563 Gunstan, Goods of 321, 322 Guthrie v. Price 98 Gwillin V. Gwillin 322, 347 H. Habergham v. Vincent 265, 266, 272, 281 Habeshon v. Vardon 22 Hacker v. Newborn 236 Haddon v. Fladgate 51. 52. S3 Hagan v. Yates 239 Hagger v. Payne 530 Haines v. Haines 387 Hairston v. Hairston 418, 431 Hale V. Tokelove 447 Haley v. Gatewood 486, 510 Hall V. Bragg 268 V. Dougherty 116 V. Hall 72, 163, 190 228, 229, 312. 342, 350 . 53°, 535 xlii TABLE OF CASES. Section Section Hall V. Hancock 532 Hart V. Hart 425 ■V. Smith 563 V. Rust 268 V. Unger 163 V. White 510 V. Warren 109, no Harter v. Harter 217, 219 V. Waterhouse 51.52 Hartley J?e 600 Hall Jie 391, 534 Hartman v. Strickler 139. 23s Halley w. Webster no, 187, 189, 200 Hartwell v. McMaster 304 HaUowell v. Hallowell 312 Harvey v. Chateau 448 Halsey v. Patterson 544 V. Cooke 512 Halton V. Foster 543 V. Sullens 140, 240, 246 Hamilton's Estate 291,417,421 Harvey He 21,64 Hamilton v. Hamilton 8i Harwell v. Lively 415 V. Hodsdon 510 Harwood v. Baker 68,83 V. McQuillan 28 V. Goodright 3.413.437 V. Peace 273 Hascall v. Cox 542 V. Wentworth 553 Hastie's Trusts 22 Hamley v. Gilbert 596 Hastings v. Ryder 198, 199, 202, Hammersly v. Lockman 402 205, 207 Hammond v. Dike 194 Hastings He 575 V. Hammond 510 Hatch V. Bennett 507 Hammond, Goods of 322 Hathorn v. King 73 Hampton v. Hardin 353 Hatton V. May 596 Handley v. Stacey 126 Haus V. Palmer 37°. 371. 375 V. Wrightson 537 Havard v. Davis 444 Harden v. Harder 454 Haven v. Foster 447 , 449, 486, 487 Harder v. Hays no, 119, 189 V. Hilliard 350. 353 Harding v. Glyn - 537 Havens v. Van Den Burgh 425, 426 Hardy v. Merrill 200, 201, 203 Haverstick's Appeal 548 Hare v. Cartridge 593 Haw V. Earles 509. 5" Hargroves v. Redd 403 Hawes v. Humphrey 353 Harland v. Trigg 595 V. Nicholas 415 Harmon v. Brown 603 Hawke v. Euyart 450, 604 Harper v. Blean 524 Hawkins v. Hamerton 540 V. Harper 78, 174, 198 V. Garland S7S V. Phelps 537 V. Hawkins 35S Harper Jfe 95 Hawley v. Northampton 560 Harrel v. Hartel 140, 236, 238 Hayden v. Stoughton 496 Harris v. Bedford 266 Haydock v. Haydock 226, 228, 229 V. Berrall 384 Hayes v. Davis 598 V. Davjs 407 V. Hayes 410 V, Lloyd 532 V. King 538 V. Panama R. 210 V. Jackson 29 V. Pue 258 Haygood's Will 376 Harris's Estate 539 Hayne v. Irvine 542 Harris Xe 389 Haynes v. Haynes 306 Harrison's Appeal 248 V. Sherman 21 Harrison's Will 227 Hays, Goods of 366 Harrison v. Elvin 339 Hazelrig v. Hazelrig 513 V. Harrison 331, 595 Heald v. Thing 206, 207, 2M V. Nixon 469 Heard v. Horton 548 V. Rowan 67, 1S7, 203, 205, 209 Hearn v. Ross 218 TABLE OF CASES. xliii Section Section Heath v. Cole 329 Hinckley v. Simmons 41 V. Knapp 49S V. Thatcher 583 V. Lewis 603 Hindmarsh v. Charlton 328, 333. 345 V. Withington 64 Hindmarsh, Goods of 435 Hebden's Will 373 374. 378 Hindson v. Kersey «82, 353 Heck V. Qippenger 537 V. Weatherill 245 Hegarty's Appeal 253. 256 Hinkle v. Landis 268 Heidelbaugh v. Wagner 478 Hinkle's Appeal 559 Heineman's Appeal 19 Hinton v. Milburn 548 Heise v. Heise 405, 418, 420, 431 Hiram v. Griffin 57 Hellerman's Appeal 477 HiBcocks V. Hiscocks 574. 575. 576, Hellier v. Hellier 407 578, 582 Helmer v. Shoemaker 484 Hise 1). Fincher 386, 387. 395 Helyar v. Helyar 408 Hitchins v. Bassett 412 Heming v. Willets 499 V. Wood 280, 401 Hendershot v. Shields 478 Hitchcock V. Hitchcock 476 Henderson v. Cross 602 V. U. S. Bank 487 V. Henderson 542, 554 Hite V. Sims 163 Henfrey v. Henfrey 407, 409 Hix V. Whittemore no, 122, 187 Hennington v. Budd 427 Hobson V. Blackburn 456, 494 Henry, Ex parte 323 Hobbs V. Knights 389. 396 Henry v. Henry S'4 Hochstedler v. Hochstedler 478 Henshaw v. Foster 258 Hocker v. Hocker 265, 266 Hephinstall v. Gott 524 Hodgson V. Bective 523 Herbert v. Berrier 174, 308 V. Halford 603 V. Herbert 367 V. Jex 509. 5 "4 Hershy v. Clark 459 Hodsden v. Lloyd 46, so, 424 Herster v. Herster 243 Hodson V. Ball 503 Hervey-Bathurst v. Stanley 599 Hogan V. Grosvenor 324 Hess'S Appeal 98. 317 V. Jackson 470, 483 Hewitt's Will 312 Hoge v. Fisher 116 Heydon's Will 498 Hogeboom v, Hall 599 Hibbert v. Hibbert 537 Hoit V. Hoit 605 Hibbits V. Jack 603 Hoitt V. Hoitt 403, 424, 427 Hick w. Dring 509 Holland V. Alcock 21 Hick's Estate 477 Hollingerw. Syms 159, 160 Hickman v. Brown 57 HoUingsworth's Will 245 Hicks, Goods of 296, 422 HoUinrake v. Lister 600 Higgins V. Carlton 68, 77, 174, 184, HoUoway v. HoUoway 563 303, 329 V. Clarkson 544 Higgin's Will 347. 348 Holman v. Perry 54 High's Case 26s Holmes v. Cradock 478, 562 Hight V. Wilson 126, 256 V. Holmes 57 Hill V. Bowers 540 Holt V. Sindrey 534 V. Bowman 583 Holyland, Ex parte 40 , 109, no, 187 V. Downes 477. 602 Home V. Pillans 565 V. Harding 459 Homer v. Shelton 478 V. Rockingham Bank 530 Hone V. Van Schaick 470, 533 V. Thomas 561 Hood V. Archer 60 V. Walker 437 Hooker v. Axford 586 Hilliary v. HiUiaty 555 Hopewell v. Ackland 483 xliv TABLE OF CASES. Section Hopkins v. Hopkins 5^3 Hopwood V. Hopwood 440 Horah v. Knox 242 Horn V. Pullman 84, 136, 1 37, 139, 238 Hornby, Ex parte 477 Horner Re 544 Horsford, Goods of 389 Horsford Re 316 Horton v. Johnson 339 Hoshauer v. Hoshauer 243 Hotham v. Sutton 505, 514 Hougham w. Sandys 5^5 Houghton w. Kendall 533, 542 How V. Pullman 195 Howard Re 409 Howard v. American Peace Society 479. 575 V. Carusi 558, 559, 560, 595 Howe V. Howe 229 Howell V. Ackerman 542 V. Barden 243 Hovey v. Chase 91 Hoxie V. Hoxie 468 Hoxton V. Griffith 540 Hubbard v. Alexander 215 V. Hubbard 77, 361, 365, 366, 367. 399 V. Lee 299 V. Lloyd 531 Huckvale, Goods of 321, 322, 347 Huckvale Re 311, 321 Hudson V. Hudson 453 Hughes V. Hughes 533 V. Meredith 245, 247 V. Murtha 229, 236 V. Turner 449, 570 V. WeUs 64 Hughes, Goods of 311 Hughes Re 271 Hugo, Goods of 460 Hulse's Will 326 Humble v. Shore 519 Humes v. McFarlane 28 Hunt, Goods of 215 Hunt V. Hart 584 V. Hunt 265, 311, 510 w. Johnson 478 ii. Lowell Gas Light Co. 212 V. White 220 Hunt Re 216 Hunt's WiU 424 Section Huntington v. Huntington 378 Hurdle v. Outlaw S'o Hurleston v. Corbett 98 Huss's Appeal 247 Hussey v. Berkeley 533. 534 Huston V. Cone 57 Hutchins v. Cockrane 329 Hutchinson Re 595 Huxford V. Milligan 564 Hyde v. Mason 398 V. Parrat 558 V. Price 579 Hylton V. Hylton 382. 387 Ide V. Ide 559 Iddings V. Iddings 218 Incorporated Society v. Richards 24 Ingilby v. Amcotts 28 Inglesant v. Inglesant 321, 329 Inglis V. Sailors' Snug Harbor 592 a Ingram v. Girard 28 V. Porter 265 V. Smith 542 V. Southern 534 Innes v. Sayer 589 Iredell v. Iredell 531 Ireland v. Parmenter 51.1 Irish V. Newell 72, 116 Irvine v. Irvine 604 Irving's Appeal 543 Isaac V. Hughes 534 Israeli v. Rodon 425 Ives V. Harris 487 Izard V. Middleton 454 Jacks V. Henderson 425 Jackson v. Adams 35 V. Bennett 37' I/. Bull 559 V. Delaney 495. 5"o .550 V. Denniston 351 V. Hardin 70 V. Hollovray 384. 393. 431, 432. 434 V. Hooven 468 V. Hurlock 444 V. Jackson 244 ,306,326,328,426 TABLE OF CASES. xlv Section Section Jackson v. Kipp 468, 470, 545 Joiner v. Joiner 437 V. Kniten 193, 221, 242, 243, Jones V. Bacon 558 382, 403 V. Badley 586 V. Merrill 510 V. Brown 63 V. Moore 342 V. Habersham 218, 284. 337, 354 V. Payne 220 V. Hartley 449 V. Phillips 21 V. Jones 22, 233. 559. 603 V. Potter 445 V. Larrabee 350, 354 V. Sill 578 V. Moseley 382 V. Vanderspreigle 506 V. Newman 573 ■V. Van Dusen 187, 189, 303 V. Nicholay 269, 273 V. Westervelt 605 V. Quattlebaum 575 Jackson's WUl 239 V. Shewtaaker 487 Jacobs V. Jacobs 542 V. Skinner 496 Jacob's Appeal 522 V. Tebbetts 352, 353 James v. Dean 486 V. Tuck 342 V. Langdon 74. 159 V. Williams 21 V. Marvin 415 Jordan v. Adams 553 V. Richardson 548 V. Jordan 283 V. Shrimpton 446 Jordan, Goods of 297 Jamisen's Will 116 Jordan's Administrator 268 Jansen v. Jansen 447 Josh V. Josh 501 Jenckes v. Smithfield 190 Jubber v. Jubber 592, 596 V. Court of Probate 232 Julke V. Adam 126, 191 Jenkins v. Freyer 529. 532 JuU V. Jacobs 520 V. Gaisford 303 V. Maxwell 487 K. Jenkins Re 450 Jenner v. Ffinch 340. 423 Kahn's Will 120 Jennings v. Conboy 549 Kay V. Holloway 126 Jervoise v. Duke 22 Kean v. Roe 540 Jesse V. Parker 339 Keay v. Boulton 547 Jesson V. Wright 464. 553 Keays v. M'Donnell 173 176, 179 Jobson Re 564 Keeler's Will 168 Jodrell Re 481, 538 Keen v. Keen 403 Johns Hopkins Univ. v. ] Inckney 406, Kehol, Goods of 281 407. 437 Keigwin v. Keigwin 321 Johnson v. Ball 281 Keith V. Lothrop 207 V. Brailsford 393 394. 398, 420 Kell V. Charmer S82 V. Glassock 370. 371 Kelleher v. Kernan 267, 276, 288, 290 V. Johnson 327 Kelley v. Nichols 21 V. Lyford 243 V. Settegast 247 V. Moore '59 Kellick Re 341 V. Sharp 57 Kellum Re 347 V. Stanton 524 Kelly V. Johnson 404 V. Warren 604 V. Miller 168 V. Williams II V. Powlett 512 V. Yancey 26s Kemble v. Church "OS Johnson's Appeal 534 Kempfs Appeal S12 Johnson's Will 384, 402, 403 Kempsey v. McOinnis 78, 174, 184, Johnston v, Johnston 425 204, 205, 206, 207, 208, 209, 212 xlvi TABLE OF CASES. Section Section Kendall v. Kendall 508, 558 Kramer v. Weinert 70 Kenebel v. Scrafton 426. 534 Kumpe V. Coons 358 Kennard v. Kennard 562 Kurtz V. Saylor i 1,46, 49 Kennedy v. Hay 489 V. Upshaw 2IS, 241,3173 L. V. Kennedy 592 Kennell v. Abbott 224, 410 La Bau v. Vanderbilt 168,192,193,243 Kent V. Barker 2C . 426, 534 Lackland v. Downing 539 V. Mahafffey 382 Ladd V. Harvey S.513 Kerr v. Lunsford 67, 68, 72, 84, 207, 229 V. Moon 491 Kessinger v. Kessinger 236 Ketchum v. Stearns 232 Kilby V. Godwin 63 Kilvert's Trusts 583 Kimball v. Ellison 29 V. Story 537 Kimpton, Goods of 311 King V. Ackerman 479, 482, 483, 569 V. Badeley 587 V. Cleaveland 544 V. George 514 V. Mashiter 582 V. Melling 466 V. Mitchell 545, 608 V. Parker 24 V. Savage 535, 539, 554 King, Goods of 392 King's Mortgage Re 504 Kingsbury v. Whitaker 78 Kinleside v. Harrison iii, 132, 136, 137. >39. 142, 229 Kinne ». Kinne 67 Kip V. Cortland 521 Kirkpatrick lie 397, 430 Kise V. Heath 239 Kiver z/. Oldfield , 417,437 Knight V. Boughton 595 V. Broughton 263 V. Ellis 557 V. Knight 595 V. Mahoney 603 V. Selby 484 Knight Jie 494 Knotts V. Stearns 20, 426 Knox's Appeal 174 Knox V. Hotham 596 V. Jones 491 Knox's Estate 56, 25S, 263, 303 Knye v. Moore 534 Koebl V. Haumesser 453 Lallerstedt v. Jennings 5 Lamb v. Girtman 239, 342, 386 V. Lamb 77 Lambe v. Eames 595, 596 Lambell v. Lambell 401, 407 Lambert v. Paine 484 Lancaster, Goods of 297 Lane ». Lane 326 V. Vicks 468 Lane's Appeal 2, 327 Langdon v. Astor 281, 449, 450 Larabee v. Larabee 407 Larkins v. Larkins 391, 397 Latham v. Udell 225 Laughton v. Atkins 406, 407, 418, 419, 420 Lautenshlager Jie 268 Law V, Law 397 Lawrence v. Barrett 63 V. Cooke 595 Lawyer v. Smith 401, 403 Lay's Goods 367 Laycroft v. Simmons 387 Layman v. Conrey 228, 229, 239 Leake v. Robinson 27, 519, 562 Leathers v. Gray 556 V, Greenacre 265, 266, 366, 367. 378 Leatherwood v. Sullivan 347 Leavens v. Butler 468 Lechmere v. Brotheridge 52 Leckey v. Cunningham 81, 125, 191 Lee V. Bennett 49, 58 V. Case 127 V. Colston 248, 605 V. Dill 238 V. Pain 529, 577, 583 V. Pindle 487 V. Scudder 160 Lee's Appeal 453 Lee's Goods 347 Leech v. Leech 159, 168 TABLE OF CASES. xlvii Section Legate v. Ashe 412 Legg V. Meyer 70, 113, 118 Legge V. Asgill 505 Leigh V. Leigh 529 V. Savidge 490 Leighton v. Bailey 511,522 Leland v. Adams 484. 55° Lemage v. Goodban 407. 437 Lemann v. Bonsall 218 Lenz V. Prescott 562 Lepage v. McNamara 473 Le Roy, Ex parte 339 Letchworth's Appeal S63 Leyerett v. Carlisle 227 Leverington's Goods 339 Lewin v. Killey 564 Lewis V. Douglass 578 V. Jones 81, 125, 191 V. Lewis 98, 323, 325, 326, 339, 342. 347 V. Scofield 457 Lewis He 138, 188, 389 Lewis's WiU 68,73,118,186 Ley V. Ley 478 Lide V. Lide 236 Lillie V. Lillie 402 Lincoln v. Aldrich 542 V. Pelham 540 Lindsay, Ex parte 286, 288 Lindsey ». Colyear 551 V. Lindsey 599 Linnard's Appeal 431, 450 Linstead v. Greene 477 List V. Rodney 553 Lister v. Bradley 562 V. Smith 216, 278 Liston V. Jenkins 477 Little V. Little 187 Livingston v. Commonwealth 205 Lloyd V. Branton 22, 599, 603 V. Jackson 549 Locke V. Dunlap 529 V. Locke 537 Lockwood's Appeal 540 Lockwood's Will 161 Loder v. Whelpley 245 Logan V. McGinnis 198 Lombard v. Boy den 519 Lombe v. Stoughton 5CX) Long's Appeal 257 Long V. Aldred 59, 424, 446 Section 544 310 340 225 542 Long V. Blackall V. Zook Longford v. Eyre Lord Donegal's Case Lord V. Bouve V. Lord 331, 339, 350, 353 Lord St. Helens v. Lady Exeter 216 Lorillard Re 486 Loring v. Arnold 28 V. Loring 595 V. Park 354 Lorings v. Marsh 426, 585 Lorton v. Woodward 507 Love V. Buchanan 542 V. Johnston 445 Lovegrove, Goods of 456 Lovell V. Quitman 397 Loveren v. Lamprey 29 Low V. Harmony 533 V. Huntingtower 579 J/. Joliffe 179.35' V. Manners 579 V. Williamson 96, 137, 230, 235 Lowry v. Muldrow 489 Lucas V. Brooks 281, 570 V. Duffield 474 V. Parsons 81, no, 159, 161, 189, 242, 268, 298 Ludlam Re 64 Ludlow V. Ludlow 325, 326 V. Stevenson 519 Ludlum V. Otis 406 Lumb V. Jenkins 36 Lumbell v. Lumbell 391 Lummus v. Mitchell 483 Lungren v. Swartzwelder 268 Luning v. State 210 Luper V. Werts 325 Luzar v. Harman 540 Lyles V. Lyles 272 Lyne v. Guardian 223 Lyon V. Acker 539 V. Home 168 V. Lyon 517 Lyons v. Campbell 247 Lysaght v. Edwards 28 Lytle V. Beveridge 583 M. Mackay's Will Mackie v. Story 326 569 xlviii TABLE OF CASES. Section Macy V. Sawyer 561 Maddock, Goods of 333. 345 Maddox v. Maddox 22, 603 Madison v. Alderson 453 Magee v. O'NeiU 604 Magoohan's Appeal 512 Main v. Ryder 229 Mairs v. Freeman 76, 113, 226 Maitland v. Chalie 564 Major V. Williams 414.443 Major's Appeal 453 Malcom-i". Martin 541 Maley's Goods 389 Malin v. Malin 28 Malone v. Hobbs 386 Mandelbaum v. McDonnel 602 Mandeville v. Parker 342 Mann v. Mann 578 V. Thompson 529 Mannox v. Greener 503. S°7 March v. Huyter 456 V. Marchant 437 Margary v. Robinson 3" Margitson Re 440 Marks v. Bryant 372 Marsden Re 269 Marsh v. Marsh 284, •? [4, 337, 398, 415.443.446 V. Tyrrell 60, 83, 237 Marshall's Appeal 579 Marshall v. Berry 63 I). Conrad 35 ■ii. Flinn 227, 238 Marston v. Fox 28, 425, 426 V. Marston 599 V. Norton 57 Marston, Ex parte 354 Martin v. Hamblin 314 V. Hobson 505 V. King 435 V. Kirby 565 V. Laverton 495 V. Mitchell 98, 317 V. Osborne 518 o V. Perkins 178 V, Seigler 603 V. Smith 475, 495, 514, 516, 566. 574 V. Teague 231, 238 Martin, Goods of 53, 287 Martin Re 53 Section Martins v. Gardiner 397, 430 Marx V. McGlynn 193, 228, 229, 238, 239, 240, 243, 246, 348 Mason v. Bateson 584 v. Bishop 347 V. Harrison 342 V. Robinson 594 V. Williams 235 Mason's Will Re 504, 505 Mass V. Sheffield 48 Massey's Appeal 521 Masterman v. Maberly 265, 276, 280J 407 Masters v. Masters 260 Masterson v. Townshend 561 Mastyn v. Mastyn 594 Matthews v. Warner 318 Matthias, Goods of 281 Maverick v. Reynolds 136, 137, 138 Maxwell V. Call 535 V. Hill 358 May V. Bradlee 193, 198, 199 V. Grayes 505 Mayd, Goods of 287 Maynard v. Vinton 342 Mayott V. Mayott 536 M'Adara v. Walker 112, 113 McAllister ». Gale 549 McAnnulty v. McAnnulty 424 McBride's Estate S^i 57 McBride v. McBride 386 McCartee v. Orphans' Asylum 24 McCarty v. Waterman 257 McClure v. McClure 22, 229, 236} 415 McCoy V. McCoy 239 McCuUoch V. Campbell 174 McCulloch's Appeal 20 McCune v. House 379, 38r McCurdy v. Neall 347, 448 McDaniel v. Crosby 229 McDonough v. Murdock 468 McElfresh v. Guard 342 McElwaine v. Congregational Soci- ety 600 McElwaine Re 253, 303, 306, 308 McGee v. Porter 306, 308^ McGinnis v. Kempsey 174 McGuire v. Kerr 310, 312, 342 Mclntyre v. Ramsey 551' McKeegan v. O'Neill 453 McKeen I?. Frost 358> TABLE OF dASES. xlix McKennon v. McKennon McKim V. Harwood McKinnon v. Thompson McLean v. Barnard McLeod V. Dell V. McNab McMahon v. Ryan McMasters v. Blair McMichael v. Pye McNaughton v. McNaughton M'Naghten's Case M'Neiledge v. Barclay V. Galbraith McNinch v. Charles McPherson v. Clark V. Snowdon McRee v. Means McSorley v. McSorley McTaggart v. Thompson Mealing v. Pace Means v. Evans V. Moore Meares v, Meares Meck's Appeal Meek v. Perry Section 277 « 559 28 354 36s 443 232 187 533 29 210, 212 537 537 •93 397 535 263 125, 128 67. 193 265 486 393. 397 53^ 268; 274 246 Meeker w. Meeker 67,70,201,211,236 Melanefy v. Morrison 242 Melish V. Melish 220 Mellor V. Daintree 220, 477 Meluish v. Milton 223, 224 Melvin v. Easley 2io Mence v. Mence 258,- 391, 397, 430 Mendinhall's Appeal 427 a Mercer v. Mackin 348, 353, 402, 423 Merrill v. Rolston 146, 159, i6l V. Rush 138 V. Wisconsin Female College 599 Meredith v. Heneage 595 Metcalf w.Framingham Parish 477 V. Sweeney 558 a Metcalfe v. Metcalfe 606 Methuen v. Methuen 423 Meurer's Will 326, 329, 342, 347 Meyer w. Cahen 478 Miars v. Bedgood 262 Michael v. Baker yj, 265 Middleton v. Steward 57 Milburn v. Milbum 426 Miles V. Boyden 449 Millard's Appeal 558 Middlewitch v. Williams l'62, 243, 251 Miller v. Brown V. Hart V. Holt V. Keegan V. McNeill V. Miller V. Phillips V. Travers Section 59, 318, 446; 449 555 268,, 273, 274 560 328 229, 297 424 573.574.575.576, 577. 578. 579, S84 V. White 152, 161 Miller's Appeal 534 Miller Se 505 Millican v. Millican 265 Milligan, Goods of 366 Mills V. Millward 387 Milnes w. FodeW 269 Miltenberger v. Miltenberger 259, 353. 358 Minkler v. Minkler 402 Minot V. Prescott 599 V. Tappan 563 Miskelly Re 297 Mitchell ». Holder 57 V. Mitchell 216, 325, 326 V. Vickers 375, 376; 377 Mitchell's Estate 238 MInuse v. Cox 29 Moale V. Cutting 335 ». Moale 328 Moehring v. Thayer 57 Moffett V. Moffett 365 MofEt V. Varden 480 Mohun V. Mohun 592 Monkhouse v. Holme 562 Monroe v. Barclay 2l8, 236 Moodie v. Reid 326 Montefiore v. Montefiore 77, 266 Montgomery^/. Dorion 35 Monypenny w. BristOw 449, 487 Mooers v. White 35 Mooney v. Evans 5 12 Moor V. Raisbeck 533 Moore v. Blauvelt 230, 232, 235 V. Qeghom 484 V. Dimond 530 V. King 327, 328, 338 o. Little 563 V. Lyons^ 565 V. McDonald 242, 243 V. Moore 43, 97; 247, 317, 391, 4113, S08 TABLE OF CASES. Section Section Moore ». Spier 246 Murphy v. Fogg 354 Moore Re 599. 604 Murray v. Murphy 344 Moreland v. Brady 518. 574 V. Murray 335 Morey v. Hoitt 419 Musser v. Curry 443 V. Sohier 427 Mutter's Estate 473 Morgan v. Boys 150 Myers's Appeal 557 V. Davenport 426 Myers v. Anderson 554 V. Morgan 573. 577 V. Cronk 454 Morgan's Goods 269 272 276, 280 V. Myers 529 Morice v. Dunham 595 V. Vanderbelt 258 Moritz V. Brough 193. 236 Morley Re 495 N. Morrall v. Sutton 571 Morrell v. Dickey 26s Nash V. Hunt 199 V. Fisher 516,518 V. Reed 353 V. Morrell 219 248 250. 434 Nedby v. Nedby 60,237 Morris v. Burroughs 605 Needham v. Ide 470, 478 V. Stokes 218, 219, 229, 244, Neel V. Potter 243 24s. 248 NefPs Appeal 447.449 V. Henderson S'o Negus V. Negus 426 Morritt v. Douglas 321 Neide v. Neide 483 Morrow's Appeal 289 Neiheisel v. Toerge 348 Morse v. Crawford 203 Neil V. Neil 342 V. Hayden 599 Neilson v. Bishop 563 V, Mason 529 Nelson v. Blue 542 V. Morse . 426 V. McGiffert 412 V. Thompson 60 V. Public Admr. 405. 418 Mortimer v. §later 563 N. E. Trust Co. v. Eaton 223 Morton v. Barrett 548 Nevins v. Gourley 599 V. Ingram 351 Newburgh's Case 584 V. Onion 424 Newburgh v. Newburgh 568, 575 V. Perry 505 Newcomb v. Webster 407. 438 Morton, Goods of 294 Newhouse v. Godwin 229 Morton's Goods 389 Newlin v. Freeman 49.57 Mosely v. Carr 402 Newsome v. Bowyer 53 Mosser v. Mosser 265 Newton v. Carberry 227 Mostyn v. Mostyn 594 V. Qarke 341 Mounsey v. Blamire S47. 548, 57° V. Marsden 603 Mountain v. Bennett 221 229, 236 V. Newton 453 Mowatt V. Carrow 565 V. Seaman's Friend Society 281 Mudway v. Crofts 145 Newton's Trusts 542 Miih's Succession 394 Nicholas v. Kershner 77. 188 Mullen V. Helderman 236 Nichols V. Allen 29, 486 V. McKelvy II V. Binns 75, no, 112 Mullins V. Cottrell 190 ■u. Butcher 484. 550 Mullock V. Sender II V. Chandler 268, 274 Munday v. Taylor 77. 188 V. Eaton 606 Mundy V. Mundy 326, 386, 387, V. Nichols 278 395 Nickell V. Handy 606 Mundy's Goods 262 , 269, 279 Nickerson v. Bowly 561 Murfield's Will 281, 448 V. Buck 303 TABLE OF CASES. Nightingale v. Burrell V. Sheldon Nixon V. Armstrong Noble V. Enos Nock V. Nock Nockolds V. Locke Norman v, Morrell Norris v. Chambres North V. Martin North He Northern's Estate He Norton v. Bazett Nosworthy, Goods of Nourse v. Merriam Nowlin V. Scott Noyes v. Southworth Noyes's Will Nussear v. Arnold Nye V. Hoyle O. Section 555 466, 467, 468, 470 23. 357 56 342 541 582 33 559 293. 387 527. 576 341 215 601 372 424 422 230, 236, 244 500 Oats V. Brydon O'Brien v. Gallagher V. People Odell V. Odell Odenwaelder v. Schorr Offut V. Offut Ogden V. Greenleaf V. Pattee Ogle V. Cook V. Knipe Old V. Old Olney v. Hull Ommaney v. Bevan O'Neall V. Boozer V. Farr 227, 239, O'Neil V. Miurray O'Neill V. O'Neill Onions v. Tyrer Orford v. Churchill Orndoffw. Hummer Orr V. Moses Orser v. Orser Osborn w. Cook 324, Osborn's Appeal Osgood V. Bliss V. Breed V. Lovering Oswald, Goods of 483 328 200 21 324,411 374. 378 248 512 179 504 353 560 565 477 384, 386, 399, 406, 418, 448 243 370. 371 384,398,417 533 342 478 198 326, 331. 346 539 424 57 533 219 Oswald V. Kopp Otis V. Prince V. Smith O'Neil's Will O'Rourke v. Beard O'Toole V. Browne Otto V. Doty Ouchterlong, Goods of- Ouseley v. Anstruther Overbury v. Overbury Overton v. Overton Owen V, Owen Owston, Goods of Oxenden v. Chichester Oxley V. Lane Packard v. Packard Packman Jie Page V. Foust V. Frazer V. Leapingwell V. Page V. Whidden V. Young Paglar v. Tongue Paine v. Parsons Palmer v. Dunham V. Palmer Panaud v. Jones Fandall v. Russell Parfitt V. Lawless Parish v. Ferris V. Parish Parker v. Bainbridge V. Briscoe V. Chestnutt V. Johnson V. Marchant V. Parker V. Tootal V. Wasley Parker Re Parkin v. Knight Parkinson's Trusts Parramore v. Taylor Parsons v. Lanoe V. Parsons V. Winslow Paske V. Ollat Section 549 22, 603 5°' 312 565 510 16S 282 512 425 188 23 97 S75. 578 473 483 495 509 604 507 365 600 520 64 450 535 36s 354 558 227, 246 564 71 431 449 503 210 505 49. 522, 550, 599 561 468 366 557 537 323 287 374 466' 245 lii TABLE OF CASES. Section Section Passmore v. Passmore 263 ,265 Phelps V. Robbins 280,281 Patterson v. KngUsh 272; Phillips Academy v. King 24 v. Gaines 480 Phillips V. Chater 163 V. Hickey 401 ,403; V. Ferguson 603 V. Patterson 242, V. Phillips S9S V. Ransom 345 Phipps V. Ackers 562 V. Wilson 568,580 V. Anglesea 411 Patton V. Allison 24S Piatt V. McCuUough 309 V. Randall S6i Pickens v. Davis 403. 415 fatty V. Goolsby 486 V. Matthews S3I Paul V. Ball SOS Pickering v. Langdon 4J6, 478, 487 V. Compton 529 Picquet v. Swan 470 V. Sylvester 505 Pidcock V. Potter 74, 159, 20I, 203 Pawtuoket v. Ballon 328 Pierce v. Pierce J 26, 127, 336, 342 Payne k Pnyne 324 .344 V. Stidworthy 520 V. Webb 540' Plercy Re 343 Payne Re 437 Piggott V. Waller 449.487 Peake v. Jenkins 306 320 Pikington v. Spratt 563 Peam, Goods of 3" PUcher v. Hole 409 Pease v. AUis 3SS Pinney v. Hunt 223 Peaslee v. Fletcher 514 Pitney v. Brown 540 Pearson v. Carlton 20 Plane v. Scriven 328 V. Dolman 600, Plater v. Groome 256, 265 Peck V. Carey 78, 126, 127, 128, 191,: Plenty v. West 407 329 Plimpton V. Plimpton 483 Peck's Appeal 412 415 Plumstead's Appeal 265 Pemberton v. Pembertoa 399 Pocock V. Reddinger S74 V. Parke S33 Podmore v. Whatton 402 Pemberton Re 243 Polk V. Ralston 34 Pendleton's WiU 81 PoUock V. GlasseU 309 Penniman v. French 506, 508 V. Greassell 281 Penniman's WiU 431, 432, 434, 442 Pond V. Allen 562 Pennock's Estate 59S V. Bergh 28 Pennock v. Pennock 558 Pool V. Blakie S7 Fennoyer v. Sheldon 469 470 Poole V. Poole SS3 Pcipoon's Wffl 347 V. Richardson 199, 201, 203 Perjue v. Peijue 382 Pope V. Elliot 606 Perkins v. Perkins 174 .17s V. Hckett 342 V. George II V. Pope 328 V. Jones 318 -K. Whitcombe 537 V. Perkins . 440 Popham V. Bampfield 599 Perkins's Appeal 477 V. Lady Aylesbury 509 Perrin v. Blake 466 S53 Porcher v. Daniel 54^57 Perrott v. Perrott 398 Porter v. Ford 59 Perry v. Hunter 466 Porter, Goods of 287 V. Maxwell 512 Porter Re 598 Peters v. Siders 20 Porter v. Turner 299 Pettes V. Bingham 247 Porter's Trusts Re 542 Petty V. Wilson 50s Portland v. Prodgers 53 Phelps V. Hartwell 19s Portman v. Hunter 374 V. Phelps 564 Post V. Herbert 54° TABLE OF CASES. liii Section Post V. Mason 239,245 R. Posdetbwait's Appeal 466, 579 Section Potter V. Baldwin 242, 243 Rackham v. Siddall 495 V. Potter 449 Radcliffe v. Buckley 533 Potts V. Felton 33S Ragland v. Huntingdon 388 V. House 78, 9S ,205,227 Ragsdale v. Booker 265 Powell V. Board of Missions 554 Raikes V. Ward 595 V. Rawle 600 Raine Re 459 V. State 203 Ralph z/. Carrick 535 Powers' Estate 21 Rambler v. Tryon 201 Prater w. Whittle 427 Ramires v. Kent 35 Prater Re 5'2 Ramsdill v. Wentworth 426 Prather v.. McQelland 68 Ramsey w. Ramsey 312, 313 Pratt V. Jackson 512 Randw. Butler 21 V. Rice 478 Rand's Estate 255 Prentiss v. Prentiss 426 Randall v. Beatty 415 Prescott V. Prescott 521 V. Payne 599 Prescott Re 397 432. 434 Randall v. Russell 558 Price V. Lockley 540 V. Tuchin 55° V. Maxwell 407,418 Randfield v. Randfield 437 V. Powell 389 Rankin v. Rankin 33. 236 V. Strange 544 Rash V. Purnel 328 Prichard v. Prichard 505 Rathbone v. Dyckman 561 Pride v. Bubb 51.53 Raudenbach's Appeal 490 Prigden v. Prigden 331 Ravenscraft v. Hunter 397. 430 Prince 11. Hazleton 361, 365* 370. Rawlings v. Jennings 514 371. 374 Rawlins' Trusts 481., 5'6i Pringle v. McPherson 418 Ray V. Hill 305, 343 Prinsep V. Dyce Sombre 139 V. Ray 193, 240 Proctor V. Proctor 604 w. Walton 421 Provis V. Reed 193 Rayner v. Mowbray 537. 563 Prowitt V. Rodman 533 Read v. Manning 406 Pruden v. Pruden 489 V. Snell 549 Pruen v. Osborne 535 Reagan v. Stanley 255, 256 Pryor v. Coffin 395 Redding v. Allen 518 V. Coggin 386 Redding, Goods of 304. 3 JO V. Pryor 333 Redmond v. Burroughs 543 Public Administrator v. Watts 378 Reed 11. Hazleton 270, 272 Puddephate, Goods of 3" ■V. Roberts 342 Pugh V. Pugh 533 V. Watson 323, 325, 328, 330 Purcell V. Grattan 549 V. Woodward 258 V. Wilson 549 Reed's Will 137 Puryear v, Edmonson 539 Rees Re 563 Reese v. Court of Probate 405,420 Q- ». Hawthorne 374, 378 V. Reese 284, 314. 337 Queen's College v. Sutton 583 V. Stilia 239, 251 Qiiincy v. Kogers 437.487 ». Waters 35 Quinn v. Butler 398 Reeve 0. Crosby 32?6^ 348, 354 ■V. Quinn 432 Reichard's Appeal 409 V. Shields 354 Reichenbach v. Ruddach 70, 176, 231 liv TABLE OF CASES. Section Section Renn v. Lamon »74 Robertson v. Howell 604 Renvoize v. Cooper 504 V. Smith 269, 273 Reuff V. Coleman 604 Robeson v. Kea 266 Rewalt V. Ulrich 579 Robins v. Coryell 308 Rex V. Bettesworth 48 V. Quinliven 544 Reynish v. Martin 22 Robinson v. Adams 74. 144, 168, Reynolds v. Adams 236, 242, 243 174, 184, 198, 200,243 V. Kortright 259 V. Greene 561 V. Reynolds 95. 342 V. Hutchinson 243 w. Whelan 573 V. McDiarmid 529 Reynolds Re 514, 515, 518 a V. Robinson 81. 555 Rhode Island Trust Co. V. Commer- V. Savage 350 cial Bank 559 V. Schly 257 268, 270 Rhodes v. Rhodes 219, 248 V. Shepherd 538 V. Vinson 384 V. Stuart 229, 243 V. Weldy 426 V. Taylor 545 Rice V. Hartman 453 Robinson's Goods 26s 274, 287 V. Rice 74, 81, IS9 160, 187 Robinson Re 270 Rich V. Cockell 5« Robnett v. Ashlock 289 V. Gilkey 384, 418 Robson V. Jones 257 Richards, Goods of 64 Robson Re 512 Richards v. Miller 539 Rockwell V. Swift 598 V. Queen's Proctor 407 Rockwell's Appeal 250 Richardson v. Hall 5 '4 Roddy V. Fitzgerald 554, 561 V. Harrison 553 Roe V. Grew 466 V. Martin 542 i/. Taylor 68, 229 V. Noyes 47 > Rogers v. Diamond 229 327. 329 V. Richardson 243. 354 V. Hinton 64 V. Wheatland 562 V. Pittis 447. 450 Richmond's Appeal 70. 210, 239 V. Rogers 574 Rickards v. Mumford 399 V. Ross 523 Riddle's Estate 20 V. Smith 500 Rider v. Miller 187, 200 V. Thomas 505 Ridley v. Coleman 374 Rogers, Appellant 458 Rife V. Geyer 606 Rohrer v. Stehman 266 Rife's Appeal 382, 407 RoUwagen v. RoUwagen 229 Riggs V. Palmer 23 Roney v. Stiltz 29 V. Riggs 343 RoofPs Appeal 268 Right V. Price 313. 340 Roome v. Phillips 562 Riley v. Riley 303. 308, 339 Roper V. Roper 555 Ringrose v. Bramham 529 Rose V. Hatch 610 Rishton v. Cobb 224 z-.HiU 483 Risk's Appeal 5'9 V. McHose 476 Roberts v. Dixwell 551 V. Quick 267, 269 V. Phillips ■ 335 338, 346 Roseboom v. Roseboom 55° V. Roberts 287 Rosher v. Rosher 602 V. Round 399 Ross V. Christmas 188 V, Trawick 201 203, 243 V. Drake 53° 565. 566 Ti. Welch 323, 324, 327 V. Ewer 264, 326 V. West 478 V. Gleason 427 a Robertson v. Johnson 470, 522 V. McQuiston 192 TABLE OF CASES. Iv Section Section Ross V. Ross 559 Schofield V. Walker 229 Rossetter v. Simmons Sio 550 SchuU V. Murray 56 Roth's Succession 256 .352 Schultz V. Schultz • 462 Roundell v. Currer 599 Schumacher v. Schmidt 454, 456, Roundtree v. Roundtree 56s 457. 459 Rubeck v. Gardner 35 Schutt V. Missionary Soc. 453 Rucker v. Lambdin 350 Scott v. Fink 407.415 Rudffs Appeal 305 V. Terry 540 Rudisill V. Rodes 415 V. Lord Scarborough 529. 531 Rudy z/. Ulrich 236,417,418,419,422 V. Neeves 575. 583 Rugg V. Rugg 347 V. West 562, 563 Rankle v. Gates 243. 386 .395 Scribner v. Crane 182 230, 236 Runyon v. Price 184, 201 ,208 Scruby v. Fordham 250, 384, 385. Rusling V. Rusling 245 391. 397. 430 Russell V. Eubank 559 Seale v. Chambliss 194 V. Falls 342 Seaman's Friend Society V. Hopper V. Jackson 586 74 159. 161 V. Russell 534 Sears v. Russell 562, 563 Rutherford v. Morris 232 Sechrest v. Edwards 230 23s. 323 Ryall V. Bell 518 Seibert v. Wise 477 Ryan v. Allen 503 .553 Seiter v. Straub 43 V. Cowley 554 Selwood V. Mildmay 574 Ryers v. Wheeler 575 Semmes ». Semmes 398 417.420 Ryman v. Crawford 201, 203 ,243 Senger v. Senger Severin v. Zack 540 201 S. Severson v. Severson Sewall V. Roberts S18 534, 535 Saberton v. Skeels 544 V. Robbins 180 Sadler v. Sadler 36s. 370 371 zi. Welmer 20 Sale v. Thornsberry 595 SeweU V. Slinglufif 277 278, 292 Salmon v. Hayes 300 Seymour's Trusts 544 V. Stujrvesant 218 Shakespeare v. Markhand 453 Sammis v. Sammis 503 Shailer v. Bumstead 192, 226, 229, Samuel v. Samuel 606 238, 239, 242, 243, 244 Sanborn v. Batchelder 57 Shallcross v. Palmer 243. 435 V. Clough S'2 Shankland's Appeal 606 Sanderson v. Bailey 536 Sharkey v. McDermott 454 Sandford v. Vaughan 280 Sharman J!e 334 Santa Clara Academy v. Sullivan 24 Sharp V. Hall 273 Saunders's Appeal 242 244 V. Sharp 549 Savory J?e 303 Sharp's Appeal 137 Saxon V. Whitaker 189 Shattock V. Shattock 64 Sawyer v. Sawyer 512 Shaver v. McCarthy 68 Scaife v. Emmons 371 Shaw V. Ford 662 Scannell v. Wilkinson 5°. 59 V. Hussey 484 Schad's Appeal 267 V. Neville 321 Schafer v. Eneu 534 V. Shaw 348 Schaffer v. Katelle 529 Sheath v. York 425 Schley v. McCeney 64 Sheldon v. Dow 32.80 Schneider v. Manning 77. 160 V. Sheldon 281 V. Norris 258 Shelley v. Bryer ' 536 Ivi TABLE OF CASES. Section Section Shelley's Case 553 Smith V. Campbell 537 Shepard v. Shepard 599 ■0. Codron 327 Sherer v. Bishop 250 V. Davis 50s Sherrat v. Bentley 478 V. Dolby 247 304. 326 V. Mountford 536 V. Du Bose 22 Sherwood v. Sanderson 81 V. Edrington 11,486 V. Sherwood 518' V. Evans 309 Shields v. Mifflin 265 V. Fenner 243 248, 386 Shingler v. Pemberton 265: V. Harris 306, 308, 407 Shires v. Glasscock ,341 V. Hastings 553 Shore v. Wilson 570.5891 V, James 77. '60 Short V. Brubaker 163; V. Jewitt 512, 599 V. Smith 431 V. Kimball 583 Showers v. Showers 256; V. Lidiard 536 Shriver v. Lynn 466; V. McChesney 407 Shumway v. Holbrook 295 ( V. Pepper 538 Sibley v. Perry 535 i V. Ridgway SOI Sibthorp, Goods of 281 V. Robertson 20 Sills V. Brown 212 V. Smith 77, 187, 327, 510 522, 583 Silsby V. Bullock 49.57 V. Shriver 479 Silverthorn's WiU 78, 137 V. Streatfield 541 Simmons v. Simmons 415 V. Sweet 49.56 Simpson Re 443 V. Tebbett 70, 74.83, '47. 153. Simpson v. Smith 477 154. I 55. "57. 166, 210 Sinclair's Goods 280 V. Terry 522 Singleton v. Tomlinson 281, 282 V. Thurman 377 Slsson V. Seabury 464,466, 552, 553, 561 V. West 560 Sisters of Charity v. Kell; 325. 326 Smith, Goods of 48, 51. 263, 293 Skerrett's Estate 256, 265, 270 Smith's Goods 219 Skipworth v. Cabell 410 519. 598 Smith's Trusts Re 529 Slade V. Friend 445 Smith Se 447. 505. 533 Slanning v. Style 512 Smith's. Will 168, 367 Slater v. Dangerfield 554 Smithdeal v. Smith 365 Slaughter v. Stephens 382 Smithwick v. Jordan 384 Slemmer v. Crampton 553 Smock V. Smock 393. 401 Slinger's Will 81 Snider v. Burks 399 Slinn's Goods 587 Snow V. Benton no. 189, 192 Sloan V. Maxwell 32. 174 Snowhill V. Snowhill 406 Small V. Small 223, ,229, 230, 231, Snydam v. Thayer 470 236, 325 Snyder v. Bull 354 Smalley v. Smalley 353 V. Sherman 136. 137 Smart v. Tranter 55 V. Snyder 454 Smee v, Sraee 156 158, 190 V. Warbasse 220 Smeer v. Bryer 3" Soar V. Dolman 433 Smiley v. Gambill 386, ,387, 395 Soher's Estate 318 Smith V. Ashurst 529 Sorver v. Brendt 533 V. Bell 463, 466, 467, 471. 478. Soule's Will 24s, 246 558. 559 Southall V. Jones 299 V. Bryam 28 Southworth v. Adams 402, 412 V. Burch 505 Soward v. Soward 312, 335 V. Butcher 547 Sparhawk v. Sparhawk 23 350. 353 TABLE OF CASES. Ivii Section Section Sparks's Appeal SOI Stewart v. Stewart 481. 534 Spence v. Spence, 194 Stickney v. Hammond 420 .Sperling's Goods 332 Still V. Hoste 574 Spooner's Trusts 519 Stimson v. Vroman 476 Sprague v. Luther 303 Stirling v. Stirling 198, 322. 323 Spratt V. Spratt 70 Stockdale v. Nicholson 544 Sprigge V. Sprigge 402 Stoddard v. Grant 407 Springer v. Congleton 529 V. Nelson 536 Springett v. Jennings 521 Stone V. Damon 81 St. Leger's Appeal 6S. 24s V. North 507 Stackhouse v. Horton 159, 160, 203 V. Todd 453 Stamper v. Hooks 378 Storer v. Wheatley 543 Standen v. Standen 525. 583 Stoutenburgh v. Hopkins 56, 84, 239 Standenmeier v. Williamson 210 Stanley v. Colt 562, 598 Stanton v. Wetherwax 159 Stapilton v. Stapilton 605 Staples V. Wellington 114, 122, 187 Starkey v. Brooks 545 Starling v. Price 529, 532 Starret v. Douglass 125 Staser v. Hogan 242 State V. Clarke 41 z/. Jones 159 V. Pike 200, 202 V. Raughley 529 V. Terrell 2io Stead V. Mellor 595 Stebbins v. Hart 128 V. Stebbins 478 Steed V. Galley no, in, 189 Steel V. Cook 28 Steele v. Midland 500 Steele, Goods of 443 Stephens v. Taprell 392 Stephenson v. Stephenson 243 Stevens v. Bagwell 48 V. Lee 454 V. Snelling 484 V. Stevens 187 V. Vancleve 67, 198, 303 V. Winship 558 Stevenson v. Fox 565 V. Huddleson 256, a68 Stewart v. Elliott 228 V. Harriman 354 V. Lispenard 69, 92, 188 V. MulhoUand 424 V. Powell 424 V. Ross 57 V. Sheffield 521 Stover V. Kendall 430, 431, 447 Stracy, Goods of 456 Strathmore v. Bowes 449 Strauss V. Schmidt 287 Straw V. East Maine Conference 583 Streatley, Goods of 335 Stretch v. Watkins 507 Strieker v. Groves 312 Strickland v. Strickland 399 Stride v. Cooper 445 Strish V. Pelham 378 Strode v. Lady Falkland 568 Strong V. White 506 Stroud V. Connelly 56 Stubbs V. Houston 188, 201 207 Sturdivant v. Birchett 328, 342, 343 Sturgis V. Work 518 Sugden v. Lord St. Leonards 402, 403 Sullivan v. Sullivati 23, 350, 351, 355 V. Winthrop 570 Summit v. Yount 466, 603 Sunderland v. Hood 22, 229 Sunderland Re 281, 282 Surman v. Surman 592 Sutcliffe V. Richardson 604 Sutton V. Cole 583 V. Morgan 209 V. Sadler 173, 175, 176 V. Sutton 194, 229, 391, 397, 430 Swabie v. Colby 541 Swan ». Holmes 541 V. Hammond 424 Swasey v. Jaques 543 Sweet V. Dutton 542, 547 V. Sweet 393, 396 Swenarton v. Hancock 240 Swett K. Boardman 218, 272, 278 Swift V. Duffield 532 Iviii TABLE OF CASES. Section Swift V. Swift 494 V. Wiley 33° Swinburne Re 539 Swinford, Goods of 321 Swinton v. Bailey 391. 397 Sydnor v. Palmer 534 Sykes v. Sykes 407. 519 Syme v. Boughton 184 Symes v. Green I lo, 173, 176, 188 Symmes v. Arnold 265 T. Taafe v. Conmee 541 Taber v. Packwood 57 TafFz;. Hosmer 175, 184 Taggart v. Squire 400. 439 Tally V. Butterworth 374 Tapley v. Kent 265 Tappan's Appeal 604 Tappenden v. Walsh 52 Tate V. Tate 255 Tatham ii. Wright III, 175, 179, 182 Taubenhan I/. Dunz 514 Taylor v. Beverly 544 V. Brodhead 346 V. Cresswell 187 V. D'Egville 279 ■u. Kelly 270, 386 V. Mead 51 V. Mitchell 453, 489 V. Mosher 530, 562 V. Richardson 584 ■u. Taylor 405, 415, 535 V. Tolen 575, 583 V. Wilburn 238 Taylor Re 573 Tawney v. Long 159, 229, 237, 239 Tempest v. Tempest 23, 357 Templet/. Mead 258 V. Sammis 474 ■o. Temple 126, 188 V. Walker 299 Tennent v. Tennent 496 Terrible Re 443 Tewksbury v. French 516 Tharp Re 53 Thayer v. Spear 604 V. Wellington 281, 521, 546 Theological Seminary v. Calhoun 184 Thomas v. Anderson 562 Section Thomas v. Evans 408, 417, 421 V. Levering 409 V. Lines 57° Thompson v. Browne 265 V. Churchill 487 V. Davitte 239, 331 V. Gaut 470. 513 V. Grant 605 V. Hawks 168, 246 V. Ish 229 V. Johnson 273 V. Kyner 67, 68, 174, 175, 180 V. Lawley 494 V. Newlin 489 V. Quimby 159, 281 V. Stevens 326 V. Swoope 24 V. Thompson 159, 160, 168, 195, 270, 487 V. Updegraff 243 V. Young 540, 544 Thompson, Ex parte 366, 367 Thompson Re 418, 543 Thompson's Will 238 Thompson, Goods of 216 Thomson w. Ludington 533 Thorncroft v, Lashmar 279, 294 Thome, Goods of 287, 367 Thome v. Rooke 423 Thornton v. Thornton 177, 178, 198, 240 Thornton's Goods 385 Thorold v. Thorold 265 Thorp V. Owen 595 Thrasher v. Ingam 476, 478, 489 Thwaites v. Over 537 Thynne v. Stanhope 398 Tibbits V. Tibbits 6oi Tiers v. Tiers 473 Tiffin V. Longman 537 Tilden v. Green 592 a V. Tilden 7, 325, 347, 437, 599 Tilghman Rt 545 Tillinghast v. Bradford 6o5 Tillman v. Davis 542 Tilton V. American Bible Society 573 Timewell v. Perkins 5 14 Timon v. Claffy 387, 388 Tindall w. Tindall jig Tingley v. Cowgill 174 Titlow V. Titlow 81 TABLE OF CASES. lix Section Section Tittel's Estate i6i Turner v. Hand IS9, 162 Todd's Will 265, 289 V. Ivie 555 Toebbe v. Williams 256, 27s V. Scott 257 Tolson V. Tolson S37 V. Withers 533 Tomlinson v. Burg 512 Turner Ex parte 365 V. Tomlinson 425 Turnure v. Turnure 326 Tomlinson's Estate 391. 397 Tuttle V. Puitt 539 Toms V. Williams 21 Twopenny v. Peyton 606 Toner v. Collins 563 Tyler v. Gardiner 239, 246 Tongue v. Nutwell S2I, 546 V. Merchant Taylors Co. 434 Tonnele v. Hall 281, 314, 337 Tyrrell v. Lyford 516 Toomes's Estate 204 Tyson v. Tyson 174, 184 Tower v. Butts 532 Towle V. Towle 453 U. Townsend v. Bogart 70, 82, 93 Ulrich's Appeal 475. 514. 559 V. Pepperell 194 United States v. McGlue 212 V. Townsend 223 Upchurch v. Upchurch 303. 3°S. Townshend v. Townshend 187 V. Windham 558 a Towry Re 438 Trappes v. Meredith 64 Traylor's Estate 584, 588 Tredwell Re 603 Trelvar v. Lean 345 Trethewy v. Helgar 544 Trevanion v. Vivian 523 Trevanion Re 328 Tribe v. Tribe 341 Trimlestown v. D'Alton 248 Trimmell v. Fell 424 Trinnel's Goods 341 Trost V. Dingier 229 Troutbeck v. Boughey 52 Trumbull v. Gibbons 162 Tucker v. Bishop 531 V. Calvert 241 V. Field 227 V. Inman 48, 50 V. Oxner 324 V. Seaman's Aid Society 24, 575, 578. 579 V. Tucker 354 Tudor V. Tudor 430 Tugman v. Hopkins 64 Tuller Re 424 TuUis V. Kidd 205 Tunison v. Tunison 233 Tupper V. Tupper 398, 418 Turner v. Cheesman 178, 198, 203, 209, 227, 229 V. Cook 1741 324 312, 328, 339 Upfil V. Marshall 450 Usticke V. Bawden 413, 439 Utterson v. Utterson 439 Vail V. Vail 480 Van Alst v. Hunter 77, 132, 134, 135. '37 Van Alstyne v. Spraker 483 Van Amee v. Jackson 595 Van Buren v. Dash 535 Van Deuzer v. Cordon 366, 367, 368, 378 Van Gorder v. Smith 595 Van Hanswick v. Wiese 306 Van Horn v. Campbell 560 Van Kleeck v. Phipps 239 Vandruff v. Rinehart 303, 306 Van Renssalaer v. Kearney 556 Vanvalkenberg v. Vanvalkenberg 243 Van Vechten v. Keator 478 Van Wert v. Benedict 41 7 Van Winkle v. Schoonmaker 49 Vance v. Upson 251 V. Vance 243 Varick v. Jackson 28 Varrell v. Wendell 537 Vaughan v. Burford 328 V. Dickes 564 Vaughan Re 21 Veal V, Veal 271 Vedder Re 137, 159, 160, 168 Veeland ». Ryno 56 Ix TABLE OF CASES. Vermont Baptist Convention v. Vernam v. Spencer Vernon v. Kirk 247, 303, 304, Verplanck Re Vessey v. Wilkinson Viner v. Francis Vines v. Clingfost 303, Voorhis v. Voorhis Voorhis Re Voorhis' Will Vreeland v. McClelland V. Ryno Vrooman v. Powers W. Section Ladd 583 268 306, 347 538 562 529 306, 308 385 326 422 77 56 37S Wade-Gerry v. Handley 523 Wadhaus v. American Home Mis- sionary Society Wadsworth v. Wadsworth Wagner v. Ellis V. M'Donald V. Sharp V. Ziegler Wagner, Estate of Wainwaring v. Beevor Wairiwright's Appeal Wait V. Belding Waite V. Coombes V. Frisbie Wakefield v. Phelps Walcott V. Ochterlong Wales V. Templeton Walker v. Dewing V. Fields V. Griffin V. Hunter V. Jones V. Maine V. Smith V. Steers V. Walker Walker, Goods of Wall V. Wall Waller v. Waller Wallis V. Taylor Walpole V. Cholmondeley ■v. Orford Walter's Will Re Walton V. Walton 57 23 49 265, 289 540 174 49 531 229 10,29 505 306, 317 1 1, 60, 486 417 S.6 566 210 540 229, 238 266 565 24s 427 318, 342, 426, 457, 4S9, 478 3" 256 256, 312 S44 450 454 259 426 I Wampler v. Wampler Ward V. Amory V. Glenn V. Patterson V. Saunders V. Ward 17.. Wolf Ward's Goods Ward's Will Ware z;. Rowland V. Ware; 194, Ware Re Waring v. Lee V. Waring 74, 77, 143, Warner v. Bates V. Beach V. Warner Warren v. Baxter V. Harding Warrington v. Warrington Warwick v. Warwick Washburn v. Cudhihy Waterman v. Greene V. Hawkins V. Whitney Watkins v. Dean Watkins, Goods of Watson V. Anderson V. Donnelly V. Piper V. Watson Watson's Will Watts V. Cole V. Public Administrator Waugh V. Ripley Weare v. Weare Weatherall v. Thornburgh Weatherhead v. Baskervillfe Webb V. Byng V. Fleming V. Jones V. Lines V. Wools Webb, Goods of Webber ». Sullivan Webster v. Cooper V. Morris V. Weirs Weeden o. Bartlett Weeks v. Cornwell 424. 350. Section 98, 317 468, 474 49 600 542 426, 487 19 287 424 563 . '95. 244 544 536 155. 156. '57. 159 595 425, 427 420, 425 351. 354 366, 367 566 256, 312 210 550 426 243 257. 26s 282 211 7d 326, 342 »37 191 28 266, 312 35 512 523 480, 58s 555 323, 327 424 565 595 327 239 562 604 S'2, 514 374 470 TABLE OF GASES. Ixi Section Weeks v. McBethi 402 Weems v. Weems 201 Weir V. Fitzgerald 95,. 96, 98, 99, 238 Wellborn v. Townsend 486 Welch V. Adams 323, 327 V. Phillips 413 V. Welch 347 Wellington v. Apthorp 453 V. Wellington 425 Wells V. Doane 263 Wells Re 579 Welsh ^ ^ V. White 21, 26, 236, 606 White's Will 162, 164, 233, 393 Whitebread v. Lord 531 Whitehorn v,. Harris 537 Whitesides v. Whitesides 592 Whitfield V. Langdale 516 Whiting V. Whiting- 607 Whitlock V. Wardlaw 248 V. Wardwell 220 Whitman v. Morey 177, 188, 193, 243 Section Whitney c. Twombly 159,161 V. Olney 500, 501 Whyte V. Pollock 256, 277, 279 Widmore v. Woodroffe 537 Wiegel V. Wiegel 256 Wikoff's Appeal 280, 284, 314, 337. +50 Wikle V. Woolley 488 a Wilbourn v. Shell 9, 256 Wilbur V. Tobey 23, 35 V. Wilbur 174, 175, 244, 247 Wild's Case 555 Wilder v. Thayer 426 Wilkins v. Allen 569, 587 Wilkinson v. Adami 534 V. Joughin 224 V. Leland 295 V. Pearson 208 V. Wilkinson 604 Wilkinson He 536 Williams v. Ashton 435 V. Baker 60 V. Burnett 309 V. Carson 28 V. Goude 112, 229 zi. Jones 389 V. Lewis 557 V. McComb 511 V. Neff 529 V. Robinson 174, 175, 180, 184 V. Spencer 198, 208 V. Tolbert 268, 272 ■V. Tyley 389, 398 z/. Williams 21,263,415,445 Williamson v. Williamson 466, 542 Willing V. Baine 565 Willis V. Hiscox 552, 600, 602 V. Lowe 3x1 V. Moot 327 Willock V. Noble 46, 48) 50, 52, 55, 59 Wills V. Cooper 495 V. Palmer 551 V. Wills 541 Wilmoth V. Wilmoth 478 Wilson V. Beddard 303 V. Fritts 20 V. Mitchell 68, 70, 78, 83, 84, 96, 136, 137. 239 V. Moran 239 V. Wilson 413 Wilson's Appeal 225,, 238 Ixii TABLE OF CASES. Section Wilson, Goods of 2I,7j 334, 335 Wind V. Jekyl 29 Wineland's Appeal 312 Wingfield v. Wingfield S47. S^S Wingrove v. Wingrove 227 Winkley v. Kaime 575, 580 Winn, Goods of 287 Winslow V. Goodwin 28 V. Kimball 3SS Wistar v. Scott 535 Witherspoon v. Witherspoon 266 Withington v. Withington 349 Withy V. Mangles 543, 547 Witter V. Mott 420, 445 Whitman v. Goodhand 227, 229, 382 Wolf 11. Bollinger 431 V. Schoefner 512 Wolford V. Herrington 586 Wollaston Re 59, 446 Wood V. Bishop 238, 239 V. Mitcham 479 V. Roane 365, 456 V. Sawyer 283 V. White 220 V. Wood 414, 483 Wood, Matter of 262, 268 Wood Re 568 Woodbury v. Obear 212 WoodfiU V. Patton 393 Woodhouse v. Balfour 347 V. Herrick 554 V. Meredith 495 Woodington ^< 311 Woodley, Goods of 311 Woodruff ». Midgeon 578 V. Woodruff 553 Wood's Estate 137, 138 Woods V. Moore 516 V. Woods 595 Woodward v. Camp 61 V. Goulstone 402, 403 V. James 229, 540 Woodward, Goods of 345, 430 Woodward Re 389, 40 1 Woolcorab V. Woolcomb 515 WooUey v. WooUey 347 Woolmer's Estate 519 Wooton V. Redd 243, 488, 579, 594 Worcester v. Worcester 529 Worthington v. Klemm 317 Wotton, Goods of 311 Section Workman z/. Cannon 476 Worman, Goods of 53 Wrench v. Jutting 514 Wright V. Atkyns 537, 549 V. Denn 477, 479, 483, 498, 549 V. Hicks V. Lewis u. Manifold V. Methodist Church V. Rogers V. Sanderson V. Tatham V. Trustees V. Vernon V. Wakeford V. Wright 479 189, 342 341 545 347 322 192, 193, 194, 202 542 SSI 309 261, 327. 345. 431 Wrightson v. Macaulay 563 Wuesthoff z/. Germania Life Ins. Co. 309 Wyatt V. Sadler Wylde Re Wyche v. Clapp Wyeth V. Stone Wyman v, Gould V. Symmes Wyndham v. Chetwynd V. Wyndham Wynne v, Hawkins V. Wynne Wynch, Ex parte 483 566 62, 460 542, 547 200 354 351 523 263 486, 522, 599 SS7 Yardley v. Cuthbertson 206, 245, 246, 247 Yarnall's Will 371, 374 Yates v. Clark 558 V, Cole 220 Yeaton v. Roberts 532 Yerby v. Yerby 425 Yglesias v. Dyke . 150 Yoe V. McCord ■ 229 York V. Waller 449 Young's Appeal 540 Younger v. Duffie 312 Youngs V. Youngs 524 Youse V. Forman 436 Young V. Bradley 609 V. Ridenbaugh 68 Z. Zacharias v. CoUis 38 Zeisweiss v. James 24 Zimmerman v. Zimmerman 236, 281 THE LAW OF WILLS. PART I. INTRODUCTORY CHAPTER. NATURE AND ORIGIN OF TESTAMENTARY DISPOSITION. § I. Definition of "WOl. — A will, in our legal sense, is the solemn disposition of one's property, to take effect after death ;^ and in this disposition one fitly contemplates not only the purposes to which such property shall be devoted, but the person or persons by whom those purposes shall be executed, or carried into effect.^ The will being, in vernacular speech, that faculty by which we purpose and choose, the word itself comes naturally to denote the purpose, the choice itself as fixed upon, and hence, in our present technical sense of the word, the authentic and final declaration of that choice or purpose. § 2. Last Will and Testament ; Testament and Testator. — "Last will" or "last will and testament" is the English phrase used from the earliest times as peculiarly appropriate 1 Bouvier Diet. "Will"; Svrinbume §3. On the other hand, wills in modern Wills, pt. I, § 2; Godolphin, pt. I, c. times are frequently made for the ex- I, § 2. elusive purpose of naming an executor; 2 As to the appointment of executors, the property itself, in such a case, being see Schouler Executors & Administra- intended to go, by way of descent and tors, §§ 30-52. Swinburne appears to distribution, as if no will had been have considered that the naming of an made. Legislation and practice pro- executor was indispensable to the vide what, in each respect, the will in validity of a will. Swinb. pt. i, § 3; I either event may have left wanting, after Redfield Wills, 6, note. But modern the general scheme which public policy opinion, English and American, is quite has framed. See Schoul. Exrs. & Admrs. to the contrary. Schoul. Exrs. & Admrs. §§ 122-127. § 2 LAW OF WILLS. [PART I. to this solemn disposition, if not the indispensable means of denoting it. And, indeed, it should be observed that the use of the word "will" alone in this connection, rather than "tes- tament," is confined to England and the countries whose lan- guage and jurisprudence are derived from the English source. " Testament " is the expressive word which the Roman civil law supplies in this connection;^ the continental jurists make use of no other ; and our own professional men, British and American, not only prefer still to link the words " will " and " testament " together, whenever one draws up a written dis- position of this sort for a client, but found upon the Latin testamentum exclusively the secondary forms most convenient for discussing our general subject. He or she who makes the will is to this day, in English law, the "testator" or "tes- tatrix," as the case may be; one dies "testate," leaving a valid will at his death, or " intestate " without one ; we speak of "testamentary causes," "a testamentary gift," a "testa- mentary guardian," and "letters testamentary"; while "will," on the other hand, as used in our law, furnishes not a single derivative.^ In brief, "testament" comes readily to hand, coined for the convenience of jurists the world over; but " will." which is at best a secondary medium of expression, does not. Blackstone in his Commentaries inclines plainly to a choice of the former, while regarding, it would appear, the two words as in substance synonymous ; ^ other English * There has been some controversy as Bouvier Diet. "Will"; 2 Bl. Com. to whether the word testamentum is 499. strictly derived from testatum or from that That " testament " as an English word word in combination with mentis. Bac. has a primary fitness here which " will" Abr. " Wills and Testaments," A; Inst. iiasnot,is,however, obvious; for "testa- 2,10; Co. Inst. Ill, 322. In Webster's ment " is defined as the formal legal dec- Dictionary " testament " is said to come laration or expression of one's " will." from testari, to be a witness, etc., from See "Testament," Webster & Worcester. testis, a witness. And see 2 Bl. Com. The civilians do not seem to define " tes- 499. The controversy appears to be of tament " in their law with such preci- little consequence, for in any view it is sion. Domat, lib. i, tit. i, § l; Bouvier the final declaration of the person in "Testament." regard to the disposition of his prop- ' See Bouvier and other law dic- ertv. It is his testimony upon that tionaries on this point. A subject, and that is the expression of '2 Bl. Cora. 489 et seq., chapter on his mind and will in relation to it. "Titleby testament and administration." PART I.] , INTRODUCTION. § 3 authorities of the last century and earlier drew subtle dis- tinctions between "will" and "testament," while conceding, at least, that " will " or " last will " were expressions promiscu- ously used in English law.^ We of the present day, howevef, may fairly treat "will," "testament," and "last will and testa- ment " as legal terms standing, without practical difference, for one and the same thing. § 3. Gift; Devise; Bequest. — The usual phrase of testa- mentary .disposition being, " I give, devise, and bequeath," it is well to notice the significance of these several words. "Gift," in our law, is a word of considerable scope, corre- sponding to the Roman donatio; it embraces all voluntary transfers of property without consideration ; '^ and appears well adapted to the language of one's last will and testament, inasmuch as the ruling motive of the testator is to confer of his own free will and gratuitously. "Devise" and "bequest" are words of more technical constraint. " Devise," properly speaking, is a gift of real property by one's last will and tes- tament ; and cannot with legal precision be applied to things personal.3 « Bequest," on the other hand, is a gift by will of personal property : and the word is inappropriate where the disposition relates to real estate.* Out of favor to the manifest intent of a testator, as shown by the context of the will, courts will often in these modern days construe " bequest " into " devise," and vice versa, not- withstanding verbal inaccuracies of this kind ;* and yet, wher- > See Bac. Abr. " Wills and Testa- real estate was operated upon. For a ments," A; Co. Inst. in. Here it is said devise of lands was treated at the com- that by the common law, where lands mon law not so much in the nature of or tenements are devised, it is properly a testament as a sort of conveyance by called a last will; and where it concerns way of appointment of particular lands • chattels only, a testament. to a particular devisee. Harwood v. 2 2 Schoul. Pers. Prop. 2d Ed. § S4; Goodright, Cowp. 90, per Lord Mans- Bouv. Diet. "Gift," "Donation"; field; i Wms. Exrs. 7thEd. 6. But the Schoul. Exrs. & Admrs. § 368. more general and popular definition of ' Bouv. Diet. " Devise." Formerly a last will and testament embraces both professional men were much inclined to real and personal property as above, narrow the definition of a last will and See 4 Kent Com. 502. te.;taraent, so as to apply the term to * Bouv. Diet. « Bequest." personal property, using " devise " where ' Schoul. Exrs. & Admrs. § 4. § 5 LAW OF WILLS. [PART I. ever disposition is intended of real and personal property in combination, the phrase " devise and bequeath " or " give, devise and bequeath " is certainly the more elegant, as well as the more accurate and comprehensive expression to use, when drawing up a will. § 4. Property : Real, Personal and Mixed. — Once more, a will which aims at some comprehensive disposition of prop- erty in combination, is often drawn as embracing "all my property, real, personal and mixed." We need not point out the distinction between real and personal property in the present volume ; but shall only observe that " mixed prop- erty," so called, relates to that kind of property such as heir- looms and fixtures, which the law does not easily assign to the class exclusively, of real or personal ; being, so to speak, a compound of both, or at the border line of division.^ §,5. Legacy. — That gift or disposition which comes to a survivor through one's last will is widely denoted as a " leg- acy." The term is more commonly applied to money or other personal property, in this connection, than to real es- tate ; but " devise " standing, already, as we have shown, in technical contrast with "bequest " to mark a distinction, this word "legacy" acquires readily a popular sense, which regards rather the value of the gift, than the elements, real or per- sonal, of which it may happen to be composed.^ Unlike "bequest," moreover, the word "legacy" has a corresponding word "legatee," to designate the person taking under the will.3 1 2 Sharsw. Blackstone Com. 42S; l use of these words, " devise," " legacy," Schoul. Pers. Prop. 2d Ed. §§ 94, 11 1. and "bequest" is not insisted on by 2 Schoul. Exrs. & Admrs. § 459; our courts in these days, so as to exclude Bouv. Diet. "Legacy"; Wms. Exrs. the testator's obvious intent. Ladd w. 1051. Harvey, i Fost. 514. The word ' This is admitted in i Redf. Wills, 6, " legatee " has even been construed to though the learned author appears to mean " distributee " in a will out of re- prefer " bequest " as the convenient term gard to this same obvious intent of a for general use. From what we have testator. Lallerstedt v. Jennings, 23 said iu the text (§§ 2, 3,) the reader Ga. 571. perceives that technical accuracy in the PART I.] INTRODUCTION. § "J § 6. Wills, 'Written and Unvrritten, or Kuncupative. — Wills or testaments are of two kinds, written and unwritten ; the latter being also designated in law as verbal or nuncupative.^ Nuncupative wills or testaments (which have a place in the Roman civil law) are so called from nuncupare, to name, de- clare or make a solemn declaration, because the testator declares his will in extremis before a sufficient number of witnesses whose oral proof must afterwards establish it. These verbal wills offer great temptation to fraud and perjury, besides occasioning much honest error, and the need of them lessens as the art of penmanship becomes more universal and writing materials abound. The Statute of Frauds, 29 Car. II. c. 3, laid them under various restrictions ; and the tenor of legislation, English and American, at the present day is to invalidate them altogether, except as to soldiers in actual military service and mariners at sea.^ § 7. Codicils, or Postscripts to Wills. — A Codicil is in modern practice a sort of postscript to a will, being an exposition of the testator's afterthought.^ This word is derived from the Latin word codicillus, which is a diminutive of codex, and literally imports a little code or writing — a little will. Codi- cils came into our law from the Roman jurisprudence, but with an earlier significance quite different from that which modern usage attaches to them.* As Blackstone has ob- served, the codicil is the testator's addition annexed to, and to be taken as part of the testament : " being for its explana- tion, or alteration, or to make some addition to, or else some subtraction from, the former dispositions of the testator."^ ^ 2 Bl. Com. 500. or executor. Domat. Civil Law, p. ii. 2 See Nuncupative Wills, cpost. b. iv. tit. i, § i. So, too, early English * By this is not meant that a codicil writers upon wills, Swinburne, for in- is necessarily on the same sheet of stance, defined a codicil to much the paper with the original will or annexed same effect; namely, as though it were to it in any way. It may be a separate a will which appointed no executor, instrument, like any will of later execu- Swinb. pt. I, § 5. But our true modern tion. definition is as stated in the text. See * In the Roman civil law, " codicil " Bouv. Diet. " Codicil." was defined as an act which contains ^ 2 Bl. Com. 500; Godolph. p. I, dispositions of property in prospect of c. I, § 3. death without the institution of an heir § 9 LAW OF WILLS, [PART I. He adds that the codicil may be either written or nuncupative.^ In short, the codicil is part of the will, and the last will and codicils constitute one testamentary disposition. But the objection to which all nuncupative instruments are liable applies equally to a codicil or a will. And under our modern rules of legislation the codicil or any later testa- ment should be not only expressed in writing but executed with the same solemnity as an original instrument.^ Hence, as codicils are apt at all times to cumber the construction of testamentary intent as well as increase the cost and trouble of probate, a testator of sound and vigorous mind, whose ideas of disposition are simple, will generally do well to destroy the earlier will and make a clean one, as his testa- mentary intention changes, in preference to tacking amend- ments one after another to the instrument first executed. §8. "WiU" includes " CodioU." — The word " will " being the generic, legal provisions relating to wills, such as their execution and personal capacity, should be understood in general to embrace codicils. And in our modern legislation upon wills, that no doubt may remain on this point, it is not uncommonly stated expressly that the word "will" shall include " codicils."' § 9. Testaments in the Civil Law ; apecisH Kinds ; Mystic, Holograph, etc. — Besides the nuncupative testament, the civil law still recognizes various kinds, derived for the most part from the Roman code, which have no footing in the jurisprudence of England and the United States. Two spe- cies, however, deserve a mention, which French and Spanish founders introduced into the system of Louisiana before its incorporation with the American Union. One is the " mystic 1 2 Bl. Com. 500. And see I Wms. (i Vict. c. 26) to the effect that in Exrs. 8. interpretation the word " will " shall ^ 4 Kent Com. 531 ; Tilden v. Tilden, extend to a testament, and to a codicil, 13 Gray, 103; Fuller v. Hooker, 2 Ves. and to an appointment by will or by Sen. 242. See, further, as to Codicils, writing in the nature of a will in exer- P"^^- cise of a power; also to certain testa- 'Bayley v. Bailey, 5 Cush. 245. mentary guardianships stated, and "to And see the English statute of wills any other testamentary disposition." PART I.] INTRODUCTION. § lO testament," which consists principally in enclosing one's instrument of disposition in an envelope and sealing it in presence of witnesses.^ The other is the "holographic (or olographic) testament," which is written wholly by the testator himself. Under our later codes it must be entirely written, dated, and signed by the testator's own hand ; and being so prepared, it speaks for itself as declaring his last will, so as to be subject to no formality of witnesses.^ § lO. 'When a 'Will or Testament comes into Force; Revoca- tion and Alteration. — A will, though executed in one's lifetime, acquires no force as such until after the death of the testator. It may, therefore, be revoked or cancelled as well as altered by the testator at any time during his life, provided the intent and the suitable act concur.' For every testament is consummated by death, and until he dies, the will of a testator is ambulatory.* It follows that if the testator leave two or more inconsistent testaments behind him, the last shall prevail to the exclusion of every earlier one.* This ambulatory quality of a will has been often pointed out as its prominent characteristic, distinguishing it, in fact, from ordinary dispositions by a living person's deed, which might, indeed, postpone beneficial possession or even a vesting until the death of the disposer, and yet would produce such post- ponement only by its express terms under an irrevocable instrument.^ 1 La. Civ. Code, art. 1577-1580; 5 at all while the testator liveth." He- Mart. La. 182. . brews ix. vs. 16, 17. 2 La. Civ. Code, art. 1 581 ; Wll- See, too, the language of the Eng- boum V. Shell, 59 Miss. 205. And see lish Wills Act ; " Every will shall be Bouv. Diet. "Testament"; Part III. construed, with reference to the real post; 4 Kent Com. 519, 520. estate and personal estate comprised in ' See Revocation of Wills, etc. post. it, to speak and take effect as if it had * " Nam omne testamentum morte been executed immediately before the consummatum est; et voluntas testa- death of the testator, unless a contrary toris est ambulatoria usque ad mortem." intention shall appear by the will." Co. Lilt. 112; 2 BL Com. 502. "For Act i Vict. c. 26, § 24; 2 Jarm. Wills, where a testament is, there must also of 854. necessity be the death of the testator. « Lift. § 168; 2 Bl. Com. 502. For a testament is of force after men ° i Jarm. Wills, 17; Brown v. Betts, are dead: otherwise it is of no strength 9 Cow. 208; Wait v. Belding, 24 Pick. II LAW OF WILLS. [part I. § 1 1. Effect of a Subsequent Statute upon One's Will. — •• A will," it is said, " does not take effect, nor are there any rights acquired under it, until the death of the testator ; and its construction and validity depend upon the law as it then stands." Hence it follows that "a statute passed after the making of a will, but before the death of the testator, by which the law is changed, takes effect upon the will."^ Nevertheless, a retroactive effect should not be given by such later statute to an earlier will as to render, by the mere force of a new rule of construction, a different disposition under that will from what the testator obviously intended ; ^ especially if the legislation manifested no retroactive intention. On the other hand, however, it may be as to the legal operation of a valid will upon one's property, the rule is that if the testator was, at the date of making the will, without testamentary capacity, as in the case of a married woman, a subsequent statute which comes into force and remains so at the time of her death will not turn the invalid testament 136. Even though a will should in terms be made irrevocable, the testator may revoke it. 8 Co. 82 a. ^ Eastman, J., in Wakefield v. Phelps, 37 N. H. 295. This statement appears inaccurate ; though the decision was simply, in effect, to render the wife's devise of real estate to her husband inoperative, where a, later act, in force at her decease, pronounced her incapa- ble of devising land to her husband, while at the time of making the devise the statute recognized her general capacity. After-acquired lands will pass, if such clearly appears to have been the testator's intention, under a local statute to this effect, which was enacted after the will was made though before the testator's death. Gushing v. Aylwin, 12 Met. 169; Bishop v. Bishop, 4 Hill. 138; Smith v. Edrington, 8 Cr. 66. See preceding section. ^ This statement appears to reconcile Carroll v. Carroll, 16 How. 275 (in construction of the Maryland statute concerning after-acquired lands) with the cases cited in the preceding note. See language of Mr. Justice Curtis, ib. 283, distinguishing Cushing v. Aylwin, supra, and the broader terms of the Massachusetts statute ; also Smith v. Edrington, supra. And see 15 Conn. 274; Battle V. Speight, 9 Ired. 288; Mullock V. Bonder, 5 W. & S. 198. Wills are governed as to their operation upon after-acquired lands by the law in force at the date of execution and not by that in force at the testator's decease. Gable v. Daub, 40 Pejan. St. 217. As to the husband's interest in a legacy to his wife, the rule of Wake- field V. Phelps, supra, is in New Hamp- shire applied in Perkins v. George, 45 N. H. 453. A husband whose wife dies after the passage of a statute extending one's right to take real estate in fee as a surviving spouse, cannot deprive him of such right by her will made previously, to which he has not assented. Johnson v. Williams, 152 Mass. 414. 8 PART I.J INTRODUCTION. § 12 into a valid one.^ And in general the legality of the execution of a will should be judged of by the law as it was when it was executed, ^nd not as it was at the death of the testator.^ § 1 2. Origin of Wills ; Natural IiaTxr of Succession. — A few words as to the origin of wills are here appropriate. Upon this subject history preserves, indeed, but very little. Writers upon natural law, it is true, conceive of a primitive state of society, where, property vesting by common consent in the individual under the right of occupancy, that right, never- theless, continued in the occupier only while he lived. But strife and confusion at the awful moment of religious rites and burial must have seemed intolerable even to barbarians of the basest type; and decency soon framed a system by which the title of the dead proprietor descended at once, and with it, most probably, the responsible management of the funeral.* For the progress of individual ownership and suc- cession, as fundamental ideas of primitive society contrasted with occupancy for a lifetime, we may well conceive of these three stages : (i) Appropriation by government, that is to say, 1 Kurtz V. Saylor, 20 Penn. St. 209. is admitted that the few decisions of See also Dwarris Stat. 685. American courts are not harmonious; 2 Mullen V. McKelvy, 5 Watts, 399; South Carolina and Georgia seeming to Free. Ch. 77; Amb. 550; 3 Atk. 551. take a contrary view. 3 McCord, 491; A statute which changes the rules of 43 Geo. 142. Of course, if the local evidence relating to the execution of statute expressly reserves the validity of wills has no retrospective operation; former wills, the point is clear, i Bradf. and a will must be proved as the law (N. Y.) 252. required at the date of its execution. ' Puffendorf Law of Nations, Book 4, Giddings v. Turgeon, 58 Vt. 106. As c. lO; 2 Bl. Com. 490. "The law of where a will at the date of execution very many societies has, therefore, given was invalid if one of the three witnesses to the proprietor a right of continuing was husband of a legatee, and the legis- his property after his death, in such per- lature afterwards changed the rule. lb. sons as he shall name; and in1^ defect Where a statute in force when the will of such appointment or nomination, or was executed required witnesses to sub- where no nomination is permitted, the - scribe in the presence of each other, law of every society has directed the this course must be observed or the will goods to be vested in certain particular is invalid, notwithstanding a subsequent individuals, exclusive of all other per- change of the statute. Lane's Appeal, sons." 2 Bl. Com. 490. The former 57 Conn. 182. In this last-mentioned method of acquiring, as the learned case the whole subject is discussed, and, commentator adds, is called a testament, while the rule of our text is sustained, it the latter an administration. lb. § 13 LAW OF WILLS. [pART I. by the strongest survivor surrounding the deceased, whether as trustee for the common society, or rather in the semblance of an armed chieftain grasping for himself and his line. (2) The promulgation of a general scheme by that government or that chieftain in obedience to the profound affections of the individuals, whereby the inheritance vested in a member or members of the decedent's own family. (3) Recognition of a right in the individual owner to dispose of the title at his own choice and in variance, if need be, of the usual rules of inheritance. In this last recognition by society lies the sanc- tion of a will ; and this sanction reaches its refinement when we find the dead proprietor's wishes so far respected by the government, by his fellow-men^ that he may safely disinherit, or transmit to strangers, or provide for the default of his own kindred, or bestow at pleasure upon selected objects of charity, by the formal declaration of his last wishes to that effect. And yet, as leading up to such a conclusion, we should remark, that from the moment that the doctrine and practice of transfers of property inter vivos by way of gift, sale, or bailment became established, men's minds were pre- pared for recognizing a transmission of title beyond the span of any occupant's own life. If, moreover, the owner could not lawfully make a testamentary disposition, he might, when dying, with full opportunity to do so, divide his property among those who stood at his bedside, and thus dispose of it sui juris, without a strict succession at all. § 13. Origin of WiUs ; Historical Views of Succession. — But, setting aside theories of social progress, whatever authen- tic history teaches us of the origin of the human race, confirms the opinion that the practice of allowing the owner of prop- erty to direct its destination after his death, or at least of imposing general rules of inheritance, is coeval with civiliza- tion itself and so close, in fact, upon the origin of property and property rights, as not to be essentially separated in point of antiquity. To take the Sacred Writings for instance. The first rule was exercised by a founder over his own family. The patriarch gave his dying blessing, and, as it would appear, 10 PART I.J INTRODUCTION. § I3 transmitted his own property to his descendants, regulating the inheritance at discretion ; at all events, he was familiar with some scheme of inheritance which provided, not only for children or kindred, but for the contingency of their fail- ure.^ Abraham, our earliest type of the prosperous father of a family, amassing property in the midst of a civilized and peaceful society, who journeyed to Egypt, who grew very rich in cattle, servants, silver and gold, who paid out his thousand pieces of silver for a piece of land, and was respected far and wide as a man of wealth, is seen considering, while childless, who would be his heir, and after rearing children late in life and marrying more than once, giving all that he had to his oldest legitimate son, Isaac, at his death, and sending the sons of his concubines away with gifts. Isaac gives his death-bed blessing to the younger son by an error which he refuses, upon discovering it, to retract.^ Jacob bequeaths to his son Joseph a portion of his inheritance double to that of his brethren.^ All of these seem to afford instances of death- bed disposition at patriarchal discretion ; though Blackstone and other writers fasten upon that of Jacob alone as the more authentic, and perhaps the earliest recorded instance of the early use of testaments.* That verbal testaments preceded written ones is altogether likely. And this very word " tes- tament" which came down to us with the most sacred of associations, means, as a New Testament writer argues, not a mere covenant of God with the living, but something sym- bolical, which, like all testaments, requires death or the dedi- cation of blood, to give it effect.^ If we turn to the Vedas, the oldest authority for the relig- ious and social institutions of the Hindoos, the result is not different. Whether these ancient hymns, imperfect as must be their testimony, offer plain instances of a disposition by 1 Gen. cs. xiii. xv. xxv. upon Gen. c. xv., and alluding to the »Gen. c. xxvii. This indicates how fanciful relation, by Eusebius and others, much solemnity was attached to the of Noah's testament, made in writing death-bed utterances by the patriarch and witnessed under his seal, whereby who made them. he disposed of the whole world. See * Gen. c. xlviii. Gen. c. x. * 2 Bl. Com. 490, 491, commenting ' Hebrews ix. vs. 16-18. II § 13 LAW OF WILLS. [PART I. testament, Sanscrit scholarship must determine; but certainly they depict a society where laws of succession as well as of transfer inter vivos are in full force, and the male issue (not wholly perhaps excluding the daughters) inherit and at the same time perform the funeral rites.^ Homer's Iliad, once more, furnishes fair illustrations of oral testament and be- quest, as well as inheritance.^ Respect for fundamental rules of inheritance may, never- theless, have prevailed in various countries and ages as against the free license of a testamentary disposition. " Solon," ob- serves Blackstone, "was the first legislator that introduced wills into Athens" ; and he adds that in many other parts of Greece they were totally discountenanced ; that in Rome they were unknown till the laws of the Twelve Tables were compiled ; and that among the northern nations, particularly among the Germans, testaments were not received iji use.* Whether all this exclusion was absolute or only partial, and whether there might not have been permitted in some of these excepted instances a testamentary disposition of a certain sort, approximating a death-bed gift, especially if just in itself, it is not our province to inquire. Certainly the practice of transferring what one owns so as to take effect by his direc- tion after death seems so reasonable and natural of itself that . we may well conceive that it has existed always and every- where in civilized society with rare exceptions ; though it would not be strange if rude and property-despising people, like the ancient Germans and the Spartans under Lycurgus, condemned it.* But so far as the operation of wills as such and in disregard of civil rules of inheritance is concerned, we 1 2 Wilson's Rig- Veda Sanhita, xvii. of his own property ; for it furnishes 2 See, e^., as to Patroclus, Iliad, 23d one of the stroi)gest motives to industry book, lines 90-93, 250-255, Chapman's and economy. The law of our nature, translation. by placing us under the irresistible influ- ' 2 Bl. Com. 491; Plutarch's Solon; ence of the domestic affections, has suf- Pott. Antiq. 1. 4, c. 15; Inst. 2, 22, i; ficiently guarded against any great abuse Tacitus De Mor. Germ. 21, cited ib. of the power of testamentary disposition, * " The general interests of society by connecting our hopes and wishes with in its career of wealth and civilization, the fortunes of our posterity." 2 Kent seem to require that every man Should Com. 502. have the free enjoyment and disposition 12 PART r.] INTRODUCTION. § 14 may agree with the standard commentator of English law, that even where the individual's right to make a will is per- mitted bylaw, "it is subjected to different formalities and restrictions in almost every nation under heaven." ^ We should add, however, that the formalities and restrictions which refined nations still impose upon this individual right are placed there chiefly in order to prevent a testator from unjustly discriminating against those of his own immediate family, or else for warding off in the courts a false interpreta- tion as to what his last will really was ; in either case fairly but not violently upholding the general laws of inheritance against unnatural caprice and fraud. § 14. Origin of Wills in England. — In England the individ- ual right of testamentary disposition has been recognized from the earliest times ; and a passage in the old law before the Conquest indicates that a Saxon nobleman would hardly have died intestate unless carelessness or sudden death pre- vented him from making his will.^ Nevertheless, there is good reason to believe that the right of inheritance was firmly established in our mother-country earlier than that of dispo- sition by will ; that until times comparatively modern, one's testamentary right remained obstructed by certain arbitrary rules of distribution, as to his personal property, which the Crown and Church were interested to uphold. Thus, in the, reign of Henry II. one-third part only of one's personal property could be willed away. For, according either to common law or custom (it is doubtful which), the widow and children long had their " reasonable parts " or thirds in the goods and chattels of the deceased, so that unless one died without either wife or issue surviving, the whole could not go according to his own disposal.^ Though leaving a will, he was bound to remember his lord and the Church ; but if he died intestate, the crown and the ordinary remembered them- selves ; making very free, in fact, with whatever might remain 1 2 Bl. Com. 491. « 2 Bl. Com. 492, 493, 495 ; Schotd. * 2 Bl. Com. 491, citing LL. Canut. Exrs. & Admis. §§ 9, 497. c. 68. 13 § 15 LAW OF WILLS. [PART I. of his personal estate over and above the reasonable parts we have mentioned.^ All this curious law is now swept away; and whatever customs may have formerly restrained the testamentary power have at all events been abolished in England by the statute I Vict. c. 26 (a.d. 1837), known as the Statute of Wills.2 Earlier legislation led to this change of law, which was, indeed, so gradual that Blackstone, observing that in his own time one might by will bequeath the whole of his goods and chattels, declared himself unable to trace out when first the alteration began.^ § 15. The Same Subject: Devises of Land. — Our historical study of the English law of wills is not complete without a further consideration of the ancient "devise," which of course related in the earlier days of our common law to real, as strictly distinguished from personal property. It appears that lands in England were devisable by will prior to the Norman Conquest.* Then was established the feudal system, and the feudal incumbrance imposed upon lands held in tenure that alienation could not take place without the con- sent of the lord ; in consequence of which the power of devis- ing was restrained, so as not to curtail his rights and privileges. This incumbrance, against which struggled family affection and the desire of independent dominion, yielded sooner where lifetime alienations were concerned than in dispositions to take effect after death. But the cunning of a feoffment to uses introduced a means of evasion whereby one could effectu- ally devise his land until the Statute of Uses, 27 Hen, VIII., destroyed the privilege. Scarcely five years later, however, another statute of the same reign (32 Hen. VIII.) long styled the Statute of Wills (as amended by 34 Hen. VIII.) gave a broad sanction to the practice of devising lands directly; until 1 2 Bl. Com. 492, 493, 495; Schoul. general law or special custom in its Exrs. & Admrs. §§ 9, 497. origin, furnished matter of dispute. lb. * See this statute set forth at length, commenting upon Coke, 2 Inst. 33. appx. * Wright Tenures, 172; 2 Bl. Com. » 2 Bl. Com. 492, 493. Whether the 373; 4 Kent Com. 503. doctrine of reasonable parts was one of 14 PART I.] INTRODUCTION. § I7 by a statute of Charles II. the last traces of feudal tenure were abolished, and the disposition of real property by will was rendered absolute.^ Once more, then, we reach the statute of I Vict. c. 26, by which all restrictions are now removed from the disposition of property in England, whether real or personal.^ § 16. Origin of •WUls in the United States. — Each of the United States has its own Statute of Wills, with variations to be noticed in detail hereafter. But as neither feudal tenure nor the doctrine of "reasonable parts " ever had a clear footing in this country, the American rule is, and has been, that one of suitable capacity may dispose of his real and personal property without restriction by a will duly executed with the prescribed formalities. Nor is it usual to require different formalities for different kinds of property, but to apply one rule to all of a testator's property, real, personal or mixed, so that all may be comprehended in the same testamentary instrument.^ The English Statute of Frauds and Perjuries, 29 Car. II. c. 3, which directs that all devises shall be in writ- ing, signed by the testator, and subscribed in his presence by a stated number of credible witnesses, is at the foundation of our American legislation on this subject. § 17. Prevalent Rule of Succession; the 'Will of the State and the Will of the Individual — Now to consider the rule of succession * as it stands at the present day in England and the United States. Upon the property, real and personal, of ^ 4 Kent Com. 504, 565; 2 Bl. Com. so devised, bequeathed, or disposed of, 373> 374- would devolve upon the heir at law, 01 ' See Stat. I Vict. c. 26 (a.d. 1837), customary heir of him, or if he became set forth in our appendix. Section III. entitled by descent, of his ancestor, or of this act cbntains the general enabling upon his executor or administrator," etc. clause, beginning : " And be it further * Our statute regulations on the sub- enacted, That it shall be lawful for every ject of devise are, as to the old thirteen person to devise, bequeath, or dispose States especially, substantially alike and of, by his will executed in manner here- derived from the English statutes of 32 inaiter required, all real estate and all Hen. VII., and 29 Car. II. 4 Kent personal estate which he shall be en- Com. 505. titled to, either at law or in equity, at * The word " succession " as used in the time of his death, and which, if not the present connection is one of civil IS § \^ LAW OF WILLS. [PART I. every one who dies it may be said that one or another of two schemes of legal disposition operates, (i) There is the will of the State ; or, as the familiar phrase goes, the will which the law draws up. (2) There is the will which the individual has made for himself. In the former consists the expression of the public, of legislation, presenting what the State deems the fitter scheme for setthng the great majority of estates; in the latter, that which the owner has chosen to suit his special circumstances, and which like any contract admits of the widest variety of forms. It sometimes happens that the individual scheme as set forth coincides with that of the State ; possibly, too, one's own will may have comprehended but part of his property, leaving the will of the State to impress the residue ; but more commonly the individual scheme seeks to work out a total disposition of its own, differing from that of the State. One who leaves no will of his own may, perhaps, be considered to have accepted that of the State ; the latter operating, it is said, " according to the will of the deceased, not expressed, indeed, but presumed by the law." ^ But no such presumption is essential ; for though inadvertence, sudden death, non-compliance with legal forms, or other cause, should account for its absence, the individual will is not so greatly respected by the public that the general scheme, the will which the law draws up should not be allowed with the utmost confidence to operate exclusively upon the decedent's estate in such a case. The above expression is, of course, to be understood figura- tively ; for in the literal sense of our law, the operation of the will of the State furnishes the case of intestacy, but that of the individual's own will the condition of dying testate. rather than common law jurisprudence, term will be found in English books on But it is very convenient for denoting comparative jurisprudence; also in the the general devolution of title in prop- codes of Louisiana and other American erty by death, and no term of the com- States, whose first settlers brought from mon law can well supply its place. By continental Europe the institutions of succession we mean the transmission of the civil law. See Bouv. Diet. " Suc- the rights and obligations of a deceased cession." person to those surviving him, whether 1 Puff. Law of Nations, lib. 4, c. II; by a testament or without one. The 2 Bl. Com. 490. 16 PART I.] INTRODUCTION. § 1 9 § 18. The Same Subject: where the Will of the State is Para- mount. -^ Where, then, does the will of the State continue paramount to that of the individual .' Or, in other words, what constraints does public policy still place upon one's power of testamentary disposition? confident that for the average of estates its own scheme is the better, still in no case pertnitting that the succession of local jurisdiction shall fall outside of both schemes. (i) Wherever the individual,' because of unsound mind, indiscretion, or some special subjection in his surroundings to fraud and undue influence, must be deemed incapable of making the will. (2) Wherever the individual will in question is not executed with all the formalities which public policy has seen fit to prescribe for the prevention of fraud and uncertainty. (3) Wherever the individual, though he made a will, is considered to have revoked it, directly or by a vital change of circumstances. (4) Where, under the circum- stances, there has been some inconsistent mutual arrangement of property between parties, giving rise to what is known as their joint or mutual wills, or where perhaps the will turned upon some contingency. All these matters will receive extended treatment in the course of the present treatise, and it may truly be said in some of the above instances that the individual who died left no will of his own behind him.^ § 19. The Same Subject: Husband and Wife. — In other respects the decedent may have left a valid will of his own, duly executed, never revoked, and not inconsistent with any testamentary arrangement on his part or contingency of any kind. And yet public policy obstructs certain provisions of that will and sets them aside because it is thought unjust that they should operate. (5) . In many of the American States a widow is protected by statute against the arbitrary disposition of her husband ; for she may waive the provisions of the will made on her behalf and take her dower and a stated share of his personal property instead ; ^ or, as the codes 1 See these several subjects considered =2 Mass. Pub. Stats. (1882) 750; Sch. in detail, Parts II., cic.,pst. Hiis. & Wife, § 429; Heineman's Ap- 17 § 20 LAW OF WILLS. [pART 1. of some States provide, the widow is entitled to her share of her husband's real and personal estate without a waiver at all.i (6) Now that a married woman is allowed by many recent acts to make a testamentary disposition without her husband's concurrence, a similar restraint is placed by the legislature of some States upon her own arbitrary disposition against the husband ; which fairly enough may end in allow- ing him a corresponding waiver of provisions made on his behalf under his wife's will.^ § 20. The Same Subject : Childreq unprovided for. — (7) Chil- . dren are not allowed any such privilege of waiver ; yet public policy does not permit them to be cut off from their inheri- tance by any indirection of the testator. A child not expressly provided for under the parental will shall take his share as in the case of intestacy, unless it is shown that the testator had otherwise provided or that such omission was intentional.^ Posthumous offspring come within the same rule of protection ; for, though not named in the parental will, they take the share which the State testamentary scheme prescribes.* Legislation favorable in these respects to omitted children or issue, whether born before or born after the will, may be found in nearly all of the American States.^ peal, 92 Penn. St. 95; Comstock v. Bigelow's notes; Stimson's Am. Stat. Adams, 23 Kan. 513. A husband can- Law, §§ 2842-2844, where shades of not by a will made before marriage statutory distinction are noted. These deprive his widow of her statutory share States and Territories have favorable in his personal estate. Ward v. Wolf, statutes upon the points stated in the 56 Iowa, 465. Aside from the widow's text concerning children : Alabama, privilege of waiver, there are many of Arkansas, California, Colorado, Con- the United States where a man's will, necticut, Dakota, Delaware, Georgia, made before marriage, is revoked, like a Illinois, Indiana, Iowa, Kansas, Ken- woman's, by the marriage. Stimson's tucky, Maine, Massachusetts, Michigan, Am. Stat. Law, § 2840 ; fast §§ 424- Minnesota, Mississippi, Missouri, Ne- 426. braska, Nevada, New Hampshire, New 1 See Stimson's Am. Stat. Law, § Jersey, New York, North Carolina, Ohio, 2S41. Oregon, Pennsylvania, Rhode Island, s Sch. Hus. & Wife, § 464 ; Mass. South Carolina, Tennessee, Texas, Utah, Pub. Stats. (1882) 819. Vermont, Virginia, West Virginia, Wis- « Mass. Pub. Stats. (1882) 750. consin. And posthumous children may * lb. have rights under a will independently * See 2 Jarm. Wills, 5th Am. edition, of statutes especially mentioning them. 18 PART I.] INTRODUCTION. §21 § 21. The Same Subject: Gifts Void as creating Perpetuities, for Superstitious Uses, etc. — (8) Gifts under the individual's will which fetter unreasonably long the free circulation of property are now pronounced void ; the general rule being that any limitation (unless it be for charitable uses) which locks up the fund for a longer period than a life or lives in being, and twenty-one years beyond (allowing, in case of a posthumous child, a few months more for the term of gesta- tion), is void. And according to modern construction, it is not sufficient that an estate may vest within this period, to avoid the objection of perpetuity, but the rule is that it must so vest.^ This rule against perpetuities applies to capital Pearson v. Carlton, l8 S. C. 47 ; Qarke V. Blake, 2 Ves. 673, The language of the Massachusetts statute permits of parol proof, outside the will itself, that the testator actually intended to omit the child in question. Bancroft v. Ives, 3 Gray, 367 j 6 Met. 400. And see Peters v. Siders, 126 Mass. 135. In Coulam v. Doull, 133 U. S. 216, this rule is followed, against that of California, ^n illegitimate child Unintentionally omitted from its moth- er's will, is not entitled to the protection of the statute. Kent v. Barker, 2 Gray, 535. So, too, as to an illegitimate child, legitimated by a subsequent marriage, see McCuUoch's Appeal, 113 Penn. St. 247. Nor is an estate in which one has merely a power of appointment within the statute. Sewall v. Welmer, 132 Mass. 131. Under the Arkansas statute, which inhibits the exclusion of a child by will unless the child is mentioned by name, a general mention of children as a class, without stating the number of them, is not a mention in full compliance with the statute. Arnold v. Arnold, 62 Ga. 627. Posthumous children at their birth take vested interests in th^r deceased parents' estate, subject to the contin- gencies of administration. Knotts v. Stearns, 91 U. S. 638 ; Catholic Assoc. V. Firnane, 50 Mich. 82. Cf. Pearson V. Carlton, 18. S. C. 47. But unintentional omission is not to be set up to defeat the regular probate of the will. Doane v. Lake, 32 Me. 268. See further. Riddle's Estate, 14 Phil. 327; Smith V. Robertson, 89 N. Y. 555 ; Wilson V. Fritts, 32 N. J. Eq. S9; S Dem. (N. Y.) 374. As to implications of intention to dis- inherit one's nearest relative, see Dun- lap's Appeal, 16 Penn. St. 500. » I Sch. Pers. Prop. 2d Ed. § 146 ; Schoul Exrs. § 465 ; 2 Redf. Wills, ist Ed. 845, 846 ; Bengough v. Eldridge, 7 Sim. 173; Rand v. Butler, 48 Conn. 293 ; Odell V. Odell, 10 Allen, i ; An- thony V. Anthony, 55 Conn. 256. For a recent exposition of this subject with English and American citations and references to legislation, see I Jarm. Wills, Jth Am. Ed. 250-301, with Bigelow's notes. Statute provisions pre- vail on this subject in New York, Michi- gan, Alabama, Georgia, Indiana, Iowa, Mississippi, Maryland, Wisconsin, and other States. In New York and some other States the prescribed period of limitation is two lives in being, i Jarm. Wills, Sth Am. Ed. 250, 253. Stimson's Am. Stat. Law, §§ 1440-1442 ; Gray's Perpetuities, passim. Thus, a gift to the children of " any 19 § 21 LAW OF WILLS. [PART I. and income also. Income, by the old rule of the law, still prevalent in Massachusetts and some other States, may yet be prospectively accumulated for this whole period within per- petuities under the individual's will. But the unnatural will of Mr. Thellusson in the last century, which excluded from the benefits of the estate all children and descendants pro- created during his hfetime for the sake of bestowing a princely fortune upon some strange and remote* scions of the stock in some later generation, led to the passage of the English Stat. 39 and 40 Geo. III. c. 98, by which accumulation of real or personal property was declared restrained thence- forward for any longer term than the life of the settler or testator, and for twenty-one years from his death or during the minority of those surviving him who would be otherwise entitled. This, it is perceived, makes the restraint closer upon income than capital ; and, though just in policy, Ameri- can legislatures have not uniformly adopted the change.^ (9) Gifts under a will to " superstitious uses " are likewise prohibited ; though English legislation of this sort directed against the officers of the Roman Church is not approved to the fullest extent in this country ; nor on either side of the water do the courts now incline to assert such a policy so boldly or so harshly as half a century ago.^ On the other son " of a life tenant is too remote, and separated and part upheld as valid, it cannot be shown that the life tenant Vaughan, Re, 33 Ch. D. 187. was past child-bearing at the testator's i i Sch. Pers. Prop. 2d Ed. § 147 ; death. 39 Ch. D. 155. A bequest in Schoul. Exrs. § 465; 2 Redf. Wills, 3d perpetuity to keep the testator's pri- Ed. 560, 563; i Jarm. Wills, 5th Am. vate burying-ground in repair is bad. Ed. 302, Bigelow's notes; Odell v. 79 Ala. 419; Kelly v. Nichols (R. I.) Odell, 10 Allen, i ; Washington's Es- 21 Atl. 906. But local statutes come tate, 75 Penn. St. 102 ; Stimson's Am. frequently in aid of bequests to provide Stat. Law, § 1443. In New York, Penn- for perpetual care of one's burial lot. sylvania, Louisiana, and Minnesota may A bequest in perpetuity to keep a clock be found statutes reducing the com- in repair is void. Kelly w. Nichols mon law rule of accumulation. I Perry (R. I.) ib. And see among various Trusts, § 398; i Jarm. Wills, 5th Am. other cases, Haynes v. Sherman, 117 Ed. 302, note. As to the Michigan N. Y. 433. rule, see Toms v. Williams, 41 Mich. Where a gift by will cannot be sepa- 552. rated, the whole must be treated as void ^2 Redf. Wills, 495, etc.; Wms. for remoteness. Harvey, He, 39 Ch. D. Exrs. 1055 ; i Co. 22 ; Cary v. Abbott, 389. Othelrwise where the gift can be 7 Ves. 490; I Jarm. Wills, 205-208. ■ 20 PART I.] INTRODUCTION. 22 hand, legacies arid bequests to charitable uses have long been favored, both in England and the United States.^ § 22, The Same Subject: Gifts Subversive of Good Morals. (lO) Wherever a will makes a devise or bequest to further and carry into effect some illegal purpose which the law regards as subversive of sound policy and good morals, such devise or bequest will Ije held void, and the executor is justi^ fied in not paying it.2 Thus, conditions of a testamentary gift tending to separation or divorce between husband and wife are treated as void ;* though it is otherwise with condi- tions which merely restrain one's surviving spouse from re-marriage; nor are other conditions restraining marriage wholly obnoxious.* To the same general principle of good English cases of earlier days have gone so far as to avoid residuary be- quests made for educating children in (he Roman Catholic faith, i Jarm. 205; 2 Redf. 495 ; Cary v. Abbott, supra. Oxr for the benefit of dissenters, though the rule is now otherwise. 2, Redf. 496, 497. All such bequests are permitted to stand bjr the law of American States, for religious toleration is yvidely prac- tised, and we have no established church. The chiefdoubt of the present day may be raised where a gift is made for glasses, prayers for the repose of the testator's soul, etc. It would appear that in England such a gift is still treated as invalid. West v. Shuttle- worth, 2 My, &,K. 684; Elliott, Re (1891), W. N. .9. But the American inclination is, in some late cases, to perr mit such gifts to stand. Powers' Estate, 134 Mass. 426. Other States hold rather to the old English rule. Uncertainty in the bequest aids sometimes the disposi- tion to avoid such gifts, Holland v. Alcock, 108 N. Y. 312. And see Beek- man v. Bonsor, 23, N. Y. 298 ; Jackson V. Phillips, 14 Allen, 549. 1 2 Redf. Wills, 1st Ed. 821 ; Jones V. Williams,, Amh, 65 1; White v. White, 7Ves. 423; SqhouL Exes. § 464; Jack-. son w. Phillips, 14 Allen, 556; Williams V. Williams, 4 Seld. 525; Wms. Exrs. 1069, 1070, and Perkins's notes. There is the English statute of mort- main, which puts restrictions upon the devises of land for charitable purposes. See act 9 Geo. II. c. 36 (1736) ; I Jarm. Wills, 219; 2 Redf. Wills, 508 ; Wms. Exrs. 1058 et seq. American leg- islation is not uniform on this topic. 3 Kent Com. 283. That cliaritable gifts are not open to the objection of perpe- tuities, see I Jarm, Wills, 5th Am. Ed, 251, Bigelow's note. 2 2 Beav. 151; I Salk. 162; 2 My. & K. 697 ; Habeshon v. Vardon, 7 E. L, & Eq. 228 ; Schoul. Exrs. § 463. * Conrad v. Long, 33 Mich. 78. » 2 ^edf. Wills, 3d Ed. 290-294 ; 2 Jarm. Wills, 5th Am. Ed. 44 et seq. The cases in, the reports upon the question of conditions in restraint of marriage are very numerous and not easily reconcilable. But the refined distinctions on this point relate not to the devise of real estate, but to pecun- iary provisions, and money arising from the sale of lands. By the civil law, to which English ecclesiastical courts much inclined, all conditions in testaments which operated in restraint of marriage. 21 § 22 LAW OF WILLS. [part I. morals and sound policy may be referred various misciellane- ous constraints upon testamentary disposition which local law sees fit to impose. Thus, under the Louisiana code a will made in favor of the testator's concubine is treated as null and void.i And as to illegitimate children, our Jaw has had whether precedent or subsequent, were (with the exception as to one's widow ) absolutely void. The chancery courts have adopted this doctrine, but not without some qualifications; for (to use the language of 2 Redf. Wills, 290) "the true rule upon the point is, that one who has an interest in the future marriage and settlement of the person in life may annex any reasonable con- dition to the bequest of property to such person, although it may operate to delay or to restrict the formation of the mar- ried relation, and so be to some extent in restraint of marriage." General re- straints imposed on a legatee's marriage by a testator who has no interest there- in, have, however, been deemed invalid as well as impolitic. Especially where there is no gift over on such marriage, the condition has been treated as merely in terror em and void. 2 Redf. 291 ; Maddox j. Maddox, 1 1 Gratt. 804 ; 2 Jarm. 44 and notes; Reynish v. Martin, 3 Ark. 330. But, to escape inconvenient consequences, very subtle distinctions have been raised ; and some of the latest cases turn upon the suggestion that the testator had not intended to impose this general (and therefore un- lawful) restraint upon marriage, but merely to provide for the donee during celibacy. Jones i^. Jones, i Q. B. D. 279; Cornell v. Lovett, 35 Penn. St. lOO; Bigelow's note to 2 Jarm. 44. The gift over on default has been regarded as a vital element in sustaining such con- ditions, lb.; Otis V. Prince, 10 Gray, 581 ; Lloyd v. Branton, 3 Mer. 108; Dawson v. Oliver-Massey, 2 Ch. D. 753. But the distinction is open to criticism. And some doubt in these modern days whether conditions in restraint cf mar- riage are, after all, impolitic. 2 Jarm 44, notes. Conditions, without a gift over, ought as to persons other than a surviving spouse to be limited to particulars, such as forbidding marriage under a certain reasonable age, or with some particular person, or without the consent of speci- fied parties, or except at some specified place or with specified ceremonies, i Jarm. 44, Bigelow's note ; Maddox v, Maddox, 1 1 Gratt. 804 ; Jervoise v. Duke, I Vern. 19 ; 3 Ves. 89. Condi- tions not to marry a man of a particular profession or any one without a stated large income have been declared invalid; while conditions not to marry a Papist or a Scotchman have been sustained. I Jarm. 44. As to conditions restraining the re- marriage of the testator's widow, or rather provisions limited to her widow- hood, the rule is well established that they are valid. 2 Vern. 308; Allen v. Jackson, i Ch. D. 399 ; Cornell v. Lovett, 35 Penn. St. 100; 2 Jarm. Wills, 44 ; 2 Redf. Wills, 295. And these conditions may be annexed to gifts, both of real and personal estate. 2 Redf. Wills, 294. A corresponding constraint may be placed upon the re- marriage of a widower. Allen v. Jack- son, I Ch. D. 399. Apparently it is not necessary that there be a linvtation over in such an event. Cornell v. Lovett, 35' Penn. St. 100. This whole subject may be examined at greater length in 2 Jarm. Wills, 44 et seq. ; 2 Redf. Wills, 290-298. 1 Gibson v. Dooley, 32 La. Ann. 959. Cf. Donnely, Re, 68 Iowa, 126, where a woman left her property to the man who lived with her as husband, but who had; 22; PART I.] INTRODUCTION. § 23 a varying purpose to exclude them from the benefits of a will.^ Doubtless the local conception of public policy on such points is liable in different jurisdictions and at different epochs to great variation, and decisions must greatly vary in consequence. § 23. The Same Subject: Personal Incapacity to take under a wm. — (11) Most persons are in modern times deemed capable of taking benefits under a will. But alien enemies ^ and other classes of persons may still be found prohibited by the local statute, on grounds of policy, besides those whose participation in these benefits could in any sense of the word be called immoral. And on the ground that no one shall profit by his own crime, it has been declared that a benefici- ary who murders the testator cannot take under his will.^ Possibly the fraudulent concealment of a pre-existing marriage might defeat a bequest given to one as a bona fide spouse.* Precaution against frauds has furnished a ground for de- claring all legacies and devises void when made to the essen- tial subscribing witness of a will.^ By this means, harsh a lawful wife living. And see Sunder- ^ As to alien friends the incapacity land V. Hood, 84 Mo. 293 ; 82 Ky. formerly existing in England appears 93. Undue influence is often found an to have been removed by legislation of element in wills which bequeath prop- 1870. I Jarm. Wills, 67-69 ; and see erty to one's mistress. McClure v. next c. In the United States, the rule McClure, 86 Tenn. 174 ; post §§ 236, is that an alien may take lands by grant 237. or devise ; though he cannot hold" it at The question of what contravenes common law against the State. He may sound policy and good morals is for the also take a legacy for his own benefit, court, not a jury, to decide. Smith v. I Jarm. 68, Bigelow's note ; Craig v. Du Bose, 78 Ga. 413. Leslie, 3 Wheat. 563; Wilbur v. Tobey; 1 See Schoul. Dom. Rel. § 281. lUe- 16 Pick. 179; Wadsworth v. Wadsworth, gitimate children may now take equally 2 Kern. 376 ; I Kent Com. 54, 70, and under a gift to " children." lb. ; 37 cases cited. Ch. D. 69s; Smith v. Du Bose, 78 Ga. » Riggs v. Palmer, 115 N. Y. 506 (2 413; L. R. 9 Ch. 147. But the English judges diss.). Contra, Owen v. Owen, rule still excludes a future illegitimate 100 N. C. 240. This doctrine is a salu- child described solely by reference to its tary one. paternity. Bolton, Re, y. Ch. D. 542, * Donnely, Re, 68 Iowa, 126. commenting on former cases. As to ' I Vict. c. 26, § 15 ; Schoul. Exrs. future illegitimates, however, who exist § 76. It was long a question in the at the testator's death, see Hastie's English courts whether a subscribing Trusts, 35 Ch. D. 728. witness could be rendered competent 23 24 LAW OF WILLS. [PART r. though it may seem, the witness becomes competent, because, disinterested. The policy of the law extends sometimes to other beneficiaries for the sake of securing disinterested wit- nesses.^ §24. The Same Subject: Incapacity of Corporations. — Under the statute 34 Hen. VIII. c. S, bodies' politic and corporate were expressly prohibited from taking by devise ; and this disability operated equally whether the corporation was aggre- gate or sole, and even though the devise was in trust instead of beneficial.^ But the incapacity to take land being a con- by having his interest destroyed by means of a release or payment before his examination; and in a leading case Lord Camden contended for this view of a "credible witness" under the Statute of Frauds against the majority of the court. 4 Bum. Eccl. Law, 27; I Jarm. 70. The later statute, of 25 Geo. II. c. 6, solved the difficulty by declaring all beneficial devises and leg- acies to the attesting witnesses void, rather than sacrifice the entire will, i Jarm. 71. By the act I Vict. c. 26, the principle is fully extended to wills of personal and real estate, and the Eng- lish policy well established. Under the statute of 25 Geo. II., above cited, it is decided: (i) That the devise or legacy must be to the witness beneficially, and not to one in trust in order to be thus annulled ; (2) That the statute applies only where the witness takes a direct interest under the will and not where his interest arises consequentially,; (3) That, as between a will and codicils, the interest which is given by force of the witnessed instru- ment, not thjit "which is merely' con- firmed by it, is the interest which the subscription invalidates. I Jarm. Wills, 71, 72; Cresswell v. Cresswell, L. R. 6 Eq. 69; Tempest v. Tempest, 2 Kay & J- 635- For the American doctrine, the wills acts of the several States, not wholly uniform in their provisions, should be consulted. The provision most preva- lent is to the effect that witnesses are incapable of taking any beneficial inter- est under the will, unless there is a -suf- ficient statutory number exclusive of the vritness in question. In New York and many other States, a witness who would have been entitled to a share of the estate had not the will been made, may recover to that extent. And in a few States the legatee, if dying before the testator, is expressly to be consid- ered a legal witness of the will, i Jarm. Wills, 70, Bigelow's note; Schoiil, Exrs. § 76. An heir at law, who is disinherited by a will, is a competent subscribing witness. Sparhawk v. Spar- hawk, 10 Allen, 155. In some States, the code still con- templates the release of his interest by a subscribing witness so as to fender him competent. See §§ 350-357. 1 Thus the statute of 25 Geo. II. c. 6 (extended as above shown, by act I Vict. 26) annuls the devise or bequest to the wife or husband of an attesting witness, i Jarm. Wills, 73. As to non-competency of a spouse apart from such a statute provision, see Sullivan v. Sullivan, 106 Mass. 474 and citations. For the general question of the com- petency of subscribing witnesses, such as executor or creditor, see Part III., post, c. 3. » I Jarm. Wills, 4th Eng. Ed. 65. 24 PART I.] INTRODUCTIOIT. § 24 sequence of that statute, it ceased to operate when the statute I Vict. c. 26 took effect. The latter statute contains no such prohiljition, but leaves the corporate capacity to take under a will dependent upon general principles ; and the general prin^ ciple here operative is that the corporation may indeed take but cannot hold and exercise full dominion without a license.^ That general principle excepts from its operation, however, such corporations as are already licensed, or authorized by legislation in their charters, to hold lands by devise ; so far at least as such previous authority or license may happen to cover the case.^ A devise to a corporation in trust is upheld^ provided the trust itself be not illegal; and even when the corporation, before i Vict. c. 26, could not take in trust, so that the devise was void in law, the estate descended to the heir changed with the trust.^ The exception just noticed is seen to relate to lands. At common law corporations have been entitled equally with individuals, as it would appear, to take personal property by bequest ; and various American decisions fortify this theory.* But limitations and restrictions under the act of incorporation should here be regarded ; to the extfent, at least, of procuring an enabling act from the legislature to hold the property where the original charter privileges would otherwise be tran- scended..^ In Massachusetts arid many other States no disa- 1 1 Jarm. Wills, 65, 66; Co. Litt. 2 b. 174; Thompson *. Swdope, 24 Penn; By varicgis early enactments, reaching St. 474. back to Magna Charta, corporations ^ Enabling acts of this character are were disabled from holding real prop- frequently met in the special legislation erty by devise though they might take % of American States at each session, that the main objection, as it would appear; of Massachusetts for instance. Gen- growing out of the loss of escheats and erally in the United States a devise of feudal profits to the lords by such per- real or bequest of personal property petual tenure. The license of the crovm may be inade to any person or corpora- protects the devise. lb. tion capable by law of holding "such 2 I Jarm. Wills, 66. real or . personal property. Stimson's 'Incorporated Society K Richards, Am. Stat. Law, § -2610. But charter I D. & War. 258. limitations as to the amount of property * Phillips Academy v. King, 12 Mass. a corporation is entitled to hold, ttay 546; Burbank v. Whitneyi 24 Pick^ deprive even an educational institution Iji; McCarteew. Orphans' Asylum, 9 from taking an additionallegacy. See Cow. 437; Gibson v, HcCall, I Rich. Cornell University case (1889), 136 U. S. 152, sustaining in N. Y. 66, 25 § 25 tAW OF WILLS. [part I. bility to take by either devise or bequest is imposed by the statute of wills upon corporations. But the American rule is not uniform. Under the New York code for instance it is expressly declared that no devise to a corporation shall be valid unless the corporation be expressly authorized by its charter or by statute to take by devise ; and in furtherance of the policy here announced it is decided in that State that " corporation " in the sense of the statute, excludes a devise to a foreign corporation of lands lying in New York although the corporation was authorized by its charter to take by devise, and that a devise to the United States cannot be supported either as to "person" or "corporation." ^ § 25. The Same Subject: Infancy, Insanity, Coverture, etc., doea not incapacitate from taking. — Although infants and in- sane persons are under legal disability to act for themselves, such persons are not incapacitated from becoming devisees or legatees under a will. For not to speak of the acts of a guardian done on behalf of one not sui juris, the latter's 1 4 Kent Com. 507; I Jarm. 65, Bige- low's note; Fox's Will, 52 N. Y. 530; White V. Howard, 46 N. Y. 144. But see American Bible Society v. Marshall, 15 Ohio St. 537, which announces a more favorable rule as to foreign cor- porations. A New York statute makes a devise to a corporation void if given by a will executed within two months of the testator's death. 4Dem. ill. See Santa Clara Academy v. Sullivan, 116 111- 375- Whether an unincorporated society may take property under a will is dis- cussed in some recent cases. " To take and hold legal estate directly, to main- tain actions as an aggregate body, and in a name of association, incorporatign is necessary. But a voluntary associa- tion, meeting and acting under a common name, for a common object, especially a charitable one, duly organized by choosing officers, keeping written min- utes of their votes and acts in the nature of a record, and thus being capa- ble of being designated and identified by proof, is a body capable of being the beneficiaries of such a. trust \i.e., of lands] though not incorporated." Shaw, C. J., in King v. Parker, 9 Cush. 71. And see Tucker «<. Seaman's Aid Society, 7 Met. 188. It is generally admitted that a liberal rule should apply, especially in case of a definite charitable gift made to a definite trustee, notwithstanding it would be void by the general rules because the persons to be benefited by it are unascertained. But in Pennsyl- vania a devise to an unincorporated "Infidel Society" has been treated as void from considerations of public policy and because the legislature was unlikely to incorporate such a society. Zeis- weiss V. James, 63 Penn. St. 465. And under the policy of the New York code an unincorporated association appears to be treated with little favor as the beneficiary of a devise. Downing v, Marshall, 23 N. Y. 366. 26 PART I.] INTRODUCTION. § 26 acceptance of what is beneficial to him may be readily pre- sumed.^ This is a principle which both the common and civil law have applied to gifts in general, so long as the gift be not injurious in itself but the reverse.^ As for coverture, it may seem a truism to assert that chancery, in advance of our revolutionary legislation of modern times, has permitted a married woman to take under a will to her sole and separate use, and free from her husband's control.^ And inasmuch as death ends the state of coverture, there is nothing to prevent a man from devising or bequeathing to his widow, even though a husband's conveyance to his wife inter vivos be invalid at common law.* § 26. The Same Subject : Maxims of Testamentary Construc- tion. — (12) We may add, that while the judicial disposition constantly increases, in America especially, to seek out and give reasonable effect to a testator's wishes, through the dark envelopment of ambiguous and inaccurate phraseology, pro- visions which of themselves are unkind, destitute of natural affection, foolish, unjust, or hopelessly vague and uncertain, are not strained into place out of any undue solicitude for what the individual intended. Against such gifts the law's testamentary scheme may well be suffered to prevail. Every doubt may thus be resolved in favor of a just and sensible disposition, and not the reverse. If a class of takers is not clearly identified, kindred by blood are properly favored over kindred by affinity ; bequests to executors or trustees are readily construed as given in trust unless the contrary is ap- parent ; courts are less disposed to uphold an expectant inter- est in chattels, perishable ones especially, than in real estate. And while earlier and later cases antagonize to some extent in practical results, it is a fundamental maxim that bequests or trusts which are hopelessly vague and uncertain must alto- » Burdett v. Hopegood, I P. Wms. • Schoul. Dom. Rel. §§ 83, 103. 486; I Mer. 654; I Jann. Wills, 76. * Litt. § 168; I Jarm. 76; Schoul. 2 2 SchouL Pers. Prop. 2d Ed. § 90; Dom. Rel. §§ 19I-I93. De Levillain v. Evans, 39 Cal. 120; Gardner v. Merritt, 32 Md. 78. 27 § 28 EAW OF WILLS. [PART I. gether fail ;^ and so, too, is it with impossible and repugnant conditions.^ § 27. The Same Subject : General Conclusion. — All of the points thus enumerated should be taken well into account whenever the individual proposes to substitute a testamentary scheme of his own for that of the state ; or, as in general speech, to have his estate settled after his death as testate instead of intestate. Under these various divisions are fairly comprised those restraints which modern law and policy have placed upon testamentary disposition. The disregard of such restraints should operate a total or partial intestacy, accord- ing to circumstances ; though it is proper to observe that the courts, out of favor to the presumed intention of the testator, have leaned against any such construction of a will as results in partial intestacy. Hence, as to personal property, whatever thus turns out not to have been effectually disposed of, as, for instance, a void or lapsed legacy, falls most readily into the residuary fund. Not that the State scheme of testamentaiy disposition shall not take a partial effect where a fair con- struction of the will permits it, nor that a partial disposition of property may riot be made by any individual who sees fit to do so; but because a presumption arises that the testator intended that his residuary legatee should have everything not particularly bestowed upon others, and that, having taken the trouble to make a will at all, his intention was to embrace all his property under it.^ § 28. What may be given by a Will. — By the rule already noticed, which obtains in England and the United States in the present century, all the property which one owns may be disposed of by his last will and testament ; and this embraces equally all the real and all the personal property to which he shall prove entitled, legally or beneficially, at the time of his » I Sch. Pers. Prop. § 148; 2 Kent * See 2 Jvitf. 5th Am. Ed. 13. Com. 354; per Redfield, C. J., in While » See 2 Redf. Wills, 3d Ed. 115, u6; I/. White, 21 Vt. 250; 2 Redf. Wills,' Leake v. Robinson, 2 Mer. 363; 18 3d Ed. 29, 383-429; I Jarm. 356; 2 lb. Beavi 417; Amb. m,per Lord Eldon. 438. And see more fuUy Part. VI. /oj/. , PART I.] INTRODUCTION". § 28 death. Corporeal and incorporeal rights, and future and contingent interests which deserve the name of property at all, are herein in61uded.i And the disposition regards pre- sumably such property, real or personal, as the testator may be entitled to when the will comes into force, rather than what he has at the time of its execution; for it is according to the state of his affairs- as they exist at his death that any deceased person's estate must be settled.* Hence, a testator in whom is the legal title to lands which he had sold by a written contract, can transfer by his will both the title and the notes given for the purchase-money.^ Any equitable interest founded iii articles of agreement for a purchase will thus pass.* But in case of an uncompleted con- tract of this kind the state of liability of the party at his death governs the question between those who may claim under him.^ All contingent estates of inheritance, including springing and executory uses and possibilities coupled with an interest, and contingent remainders are devisable, if the person to take be ascertained.® Vested estates are doubtless devisable, though liable to be defeated by the happening of some subsequent event or the non-performance of some con- dition.' But there can be no devise, more than a trans- 1 See language of Stat. I Vic. c. 26, §3; expressly refers to the present time Schoul. Exrs. §§ i, 2. All interests in must, however, receive that construction, real and personal property are included And specific gifts of stoclc or other under the terms of the English act property have naturally a present refer- which, at the decease of the testator ence. i Redf Wills, 380, 381 ; 14 Sim. would, if not so disposed of, devolve to 24S. his general real or personal representa- ' Atwood ■v. Weems, 99 U. S. 183. tives, or, if he become entitled by * Marston v. Fox, 8 Ad. & E. 14; descent, on the heir or customary heir Malin v. Malin, i Wend. 625. But see of the ancestor. I Jarm. Wills, 46. In McKinnon v. Thompson, 3 Johns Ch. a word, the basis is that of property 307. transmissible by way of inheritance or ^ \ Jarm. Wills, 54; Lord Eldon in assignment. I Sch. Pers. Prop. 2d Ed. Broome v. Monck, 10 Ves. 597; Ly- § 71, etc. ; I Redf. Wills, 388. Techni- saght v. Edwards, 2 Ch. D. 516. cal words like " seised " in statutes con- « i Jarm. Wills, 5th Am. Ed. 46, Bige- ferring the right to devise should receive low's note; I Ves. Sen. 391, 411; a liberal interpretation. Bailey v. Hop- Pond v. Bergh, 10 Paige, 41 ; 4 Kent pin, 12 R. 1.560; Ingilbyp. Amcotts, Com. 261; Loring ». Arnold, 15 R. I. 21 Beav. 585. 428. a Schoul. Exrs. §§ I, 2; Redf. Wills, ' 1 Redf. Wills, 390: I P. Wms. 563; 4th Ed. 378. Language in a will which Winslow v. Goodwin, 7 Met. 363; 29 § 29 LAW OF WILLS. [PART I. mission inter vivos, of a possibility where the person to take is not ascertainable;^ nor of any mere naked and remote expectancy coupled with no interest.'^ As for estates of which the grantor has been wrongfully disseised, they are not in technical strictness assignable ; but as claims of this character may be pursued in equity, so by good reason ought they to be capable of testamentary transfer. A right of entry after disseisin, a right to set some transaction aside, should therefore pass under a will ; and local statutes may be found which expressly make such rights transmissible in this manner.^ But one who is wrongfully seised cannot transmit a rightful interest.* To claims for damages founded in tort the usual rules apply ; and the survival of the action or not, is a material point for con- sideration, whether the injured party died testate or intestate. Estates held strictly in joint tenancy pass by a familiar rule to the survivor, while those held in common are transmissi- ble. But the modern presumption, favored by legislation, con- strues a conveyance or devise to two or more to create a common rather than joint relation.* § 2g. The Same Subject: Property acquired after the Will was made. — There can be no question that personal property acquired by the testator after making his will and during his Ingram v. Girard, I Houst. 276. The The right of entry against a mere rule is long since settled that executory adverse possessor, not founded in actual devises are transmissible and devisable; disseisin, is unquestionably devisable, not mere possibilities, but in the nature Doe v. Hull, 2 D. & R. 38; I Jarm. of contingent remainders, lb. 50. 1 4 Kent Com. 262. * Smith v. Bryan, 12 Ire. 11. 2 I Redf. Wills, 4th Ed. 389. 6 Mass. Pub. Stats. (1882) p. 744; I ' I Redf. Wills, 392 : Gresley v. Jarm. 46. Mousley, 4 De G. & J. 78; Humes v. See further, as to what comprise McFarlane, 4 S. & R. 435; Varick assets of a deceased person's estate, V. Jackson, 2 Wend. 166; Watts v. Schoul. Exrs. & Admrs. §§ 198-228. , Cole, 2 Leigh, 664. As to a reversion One may dispose of an insurance expectant upon an estate tail, see Steel policy upon his own life by will. His V. Cook, I Met. 281. Statutes in some widow and children have no claim States provide that no devise or bequest thereto by way of obstruction. Williams of any property shall be defeated by v. Carson, 9 Baxt. 516; Hamilton v. any disseisin or wrongful dispossession McQuillan, 82 Me. 204; 83 Me. 295; 88 Tjy another, i Jarm. 49, notes. Ala. 241. 30 PART i;] INTRODUCTION. § 29 life is transmissible to a legatee, under general expressions of the will consistent with that intent, and that the testament may at all events assume to dispose of it.^ To the devise of after-acquired real estate, however, technical objections have long been interposed by the courts on the theory of a seisin ; for the testator, it was said, ought to be seised of the estate when he makes a will, and so on through all the intervening period to the date of his death ; otherwise, the estate would not be supported.^ This rule of the English law was recog- nized in most parts of the United States until times compara- tively recent. But legislation has at length changed it in Massachusetts and various other States, for one more flexible and consonant to testamentary intent ; namely, that one's will may operate upon his after-acquired real estate whenever such was his obvious intention.^ Parliament too has similarly altered the rule in England.* And thus does the distinction of principle once sharply drawn between after-acquired real and personal property under a testamentary disposition gradu- ally disappear. 1 Wait V. Belding, 24 Pick. 136; Loveren v. Lamprey, 2 Fost. 434; McNaughton v. McNaughton, 34 N. Y. 201; Nichols V. Allen, 87 Tenn. 131. 2 Redf. Wills, 387; l Jarm. Wills, 5th Am. Ed. 51. We have seen that a devise was formerly considered a sort of appointment of particular lands to a par- ticular devisee, supra, § 3. It followed, that, unlike a will of personal property, after-acquired lands would not pass. Wind V. Jekyl, i P. Wms. 575; Minuse V. Cox, 5 John. Ch. 551; Hays v. Jack- son, 6 Mass. 149. 8 I Jarm. Wills, 51, 326 ; 2 Redf- Wills, 388; 1 Wms. Exrs. 6, and Per- kins's note ; Stimson's Am. Stat. Law, § 2634. So strictly was this rule for- merly applied that the plain intention of Mr. Girard's will was thwarted. Girard v. City of Philadelphia, 4 Rawle, 323. And if a mortgagee of land who made a will, afterwards foreclosed or perfected his title by taking an abso- lute deed of the premises, a new will or codicil became needful, Brigham v. Winchester, i Met. 390; 5 Pick. 112. For the statutes of the different States relating to after-acquired property, see I Wms. Exrs. 6th Am. Ed. 6, Perkins's note ; i Jarm. Wills, 5th Am. Ed. 326, Bigelow's note ; Stimson's Am. Stat. Law, § 2634. The governing test thus becomes one of the testator's actual in- tention, as shown by the will. See on this point Kimball v. Ellison, 128 Mass. 41 ; Roney v. Stiltz, 5 Whart. 381 ; Dickerson's Appeal, 55 Conn. 223 ; Decker v. Decker, 121 111. 341. * See Statute i Vict. c. 26, § 3, oper- ating on English wills made since 1837. The power of testamentary disposition under the celebrated "Wills Act" is extended to all such real and personal estate as the testator may be entitled to at the time of his death, notwithstanding he may become entitled to the same subsequently to the execution of his will. I Wms. Exrs. preface ; appx. 31 § 3° LAW OF WILLS. [PART I. § 3t). Scope of In^eBtigation to be pursued. — Having set forth the nature and origin of testamentary disposition, we now proceed to treat in detail of the law of wills, that is to say, of individual testaments. In our former volume we dis- cussed the settlement of estates, from the common stand- point of testacy and intestacy ; setting forth and distinguishing the general functions of those whose duty it is to administer, to collect, manage, settle and distribute. Upon comity and the conflict of laws in either connection we have dwelt at sufBcient length ; upon the appointment, too, of executors as well as administrators ; upon the probate of wills, the qualifi- cation, the giving of bonds, the issue of letters testamentary or of administration ; upon assets and the inventory ; upon the general powers, duties and liabilities of those thus chosen to wind up the deceased person's affairs ; upon payments and distribution, whether under a will orwhere there was none ; and upon the accounting and allowances of executors and administrators.^ This latter volume, though embracing necessarily much post mortem litigation, regards rather the living than the deceased owner of property ; and it views him at the point of determining to frame and reduce to proper form a final testamentary disposition of his estate for the just guidance of those concerned in its settlement ; to make a solemn charter which shall go into effect when he is no longer of this world, and by which his surviving family, kindred, friends, fellow-citizens and posterity shall hold him in remembrance. To the intended testacy of the individual we shall confine our present investigation; and the main subjects for our extended analysis here concern capacity and incapacity to make a will, the validity and formal requisites of wills, what constitutes revocation, revival and republication, and the general principles to be applied in testamentary construction. These, together with a few practical forms and suggestions, should amply suffice for an elementary treatise upon this interesting branch of the law. ^ Schoul. Exrs. & Admn. passim. 32 PART II. CAPACITY AND INCAPACITY TO MAKE A WILL. CHAPTER I. TESTAMENTARY CAPACITY IN GENERAL. §31. What Persons may make a 'Will : General Rule. — As a general rule, any person of sound mind, who has reached the age of discretion, and is under no constraint of will, may be pronounced capable of making a testamentary disposition of property in conformity with the prescribed forms of law.^ This fundamental maxim holds universally good at the present day in England and the United States. Whatever exceptions exist will appear in the course of the discussion upon which we now enter ; and those not consistent with the maxim itself we shall confine to the present chapter. § 32> Measure of Capacity the Same as to Property Real or Personal. — The measure of capacity requisite for making a valid will does not materially differ, whether the disposition relates to real or to personal property, or embraces both kinds. If the testator at the time of making the disposition has the sound mind and free will which the foregoing rule embodies, the law is satisfied, whatever species of property that disposi- tion may include ; otherwise it is not satisfied.^ There is reason, however, for holding that one of weak or failing intellect might grasp in his mind and memory the J Cf. Swinb. pt. 2, § I. the goods, he could not be of non-sane 2 6 Co. 23 ; Sloan v. Maxwell, 2 memory at the time of the making of Green. Ch. 563, 566. It is said in 6 the will of the lands, both being made Co. 23 : " If he were of sane memory at one and the same instant." at the lime of making the testament of 33 § 33 LAW OF WILtS. [part II. arithmetic of a simple and small estate where that of a vast and complex one would tax him too severely ;^ which distinction, as applied to the credit or discredit of the testament, involves properly a consideration of the individual's business habits and experience while in his normal condition. § 33- 'W'hether Crime disqualifies from making a Will, — English writers have made crime an exception to the rule of testamentary capacity in various instances. Indeed, the old common law with great severity inflicted the penalty of incapacity upon many classes of so-called guilty persons ; not so much to humiliate them, we may suppose, as for enabling the crown the more surely to seize upon their property and utterly confiscate it. Swinburne enumerated among those who were thus legally disqualified in his day, slaves, villeins, captives, prisoners, traitors, felons, heretics, apostates, manifest usurers, incestuous persons, libellers, suicides, outlawed persons, those excommunicated and prodigals ; a promiscuous list in which wrong-doers, unfortunates, and those of courageous conscience are found unhappily blended.^ Scarcely any of these disqualiiications now exist ; for in the latest edition of Jarman it is shown not only that treason, felony punished by death, and suicide long remained on the list because of a legal forfeiture following conviction which legislation had gradually restricted, but that a statute of 1870 sweeps away all attainder, corruption of blood and escheat, in such instances, and provides in peculiar terms for a beneficial administration of the convict's property instead.^ Forfeiture consequent upon outlawry appears, in fine, to be the last remnant of the old law of criminal disqualification.* 1 Sheldon v. Dow, i Demarest,, 503, 23, cited i Jarm. 43. Outlawry, by the 5"- old law, produced an incapacity during 2 Swinb. pt 3, § 7; I Redf. Wills, the time one remained an outlaw; but 119; 2 Bl. Com. 499. with reference, it would appear, to ' See Stat. 33 and 34 Vict. c. 23 goods and chattels rather than lands, (1870); also I Jarm. Wills, 43-45 and and not without some subtle distinc- cases cited; Bateman's Trust Jie, L. tions in the guilty person's favor. See R. 15 Eq. 355; Norris v. Chambres, 29 2 Bl. Com. 499; Swinb. pt. 2, § 21; Beav. 258; 7 Jur. N. S. 59, 712. Wms. Exrs. 7th Eng. Ed., 65. * Proviso in Stat. 33 and 34 Vict. c. 34 CHAP. I.] TESTAMENTARY CAPACITY IN GENERAL. § 34 All this learning concerning the criminal disability to make a will is of little practical consequence in the United States in these days. Forfeiture of estate beyond the life of the person attainted and corruption of blood are condemned expressly by the Constitution of the United States and in the jurisprudence of most States, even in the extreme but uncertain crime of treason ; while under some of our local codes the power of forfeiture is wholly denied to the State.^ Such has been the beneficial influence of public opinion in this country for the past century. In Kentucky it is decided that a person under sentence of death may make his will ;^ and there is no reason to doubt that the same rule obtains throughout the United States. § 34. 'Whether Aliens may make Testamentary Disposition. — The case of aliens supplies another instance of legal incapacity which the old law maintained more zealously than the enlightened policy of these days commends. Alien enemies and alien friends are here to be distinguished. Alien enemies seem affected for the time being, with a sort of criminal taint, or at all events, the law of nations thinks fit to harass them in a state of war with the government to which they owe allegiance; and hence the maxim which denounces persons of this class as incapable, without sovereign license of the hostile jurisdiction, to make any testamentary disposition of their property or even to reside or do business there.^ As towards alien friends, the favor shown is greater and requires further exposition. Alien friends, or aliens whose country is at peace with the jurisdiction in question, have by the English common law, which has been adopted with local variations in most of the American States, been treated as incompetent to devise real estate, or, indeed, to hold it all.* But they may dispose of 1 2 Kent Com. 385, 386; U. S. Con- * Co. Lit. 2 b; I Wms. Exrs. 12. stitution, Art. III. § 3. This incapacity extends to chattels 2 Rankin J/. Rankin, 6 Monr. 531. real. Co. Lit. 2 b. But ^ Fourdrin o. 'Bac. Abr. Wills, B. 17; i Wms. Gowdey, 3 My. &. K. 383. Exrs. 13. 55 § 35 LAW OF WILLS. [part II. their personal estate at pleasure.^ For as Lord Chancellor Cottenham has observed, " The incapacity of aliens to hold land i^ founded upon political and feudal reasons which do not apply to money." ^ And hence an alien's purchase of real estate is not protected for his own benefit ; not eyen though he should take the conveyance in the name of a trustee, leaving a vested interest in the land to himself;* and yet if the trust created were to give him simply a beneficial interest in the pecuniary proceeds arising from a sale of land, the courts would protect it as valid.* And pursuing this distinc- tion, an alien may, as we find, be made a legatee, though, not a devisee, where a conversion of real estate into money has given rise to the fund.^ § 35. The Same Subject : Theory of a Devisable Title. — The theory of common law as to an alien friend's devise of lands regards it, nevertheless, as voidable by the government rather than absolutely void. The crown became entitled to the real estate after office found ; and this whether the alien himself was enjoying the property during life, or his devisee after death ; so that it was fair to assert that a title, though a defeasible one, vested in the one case or the other.® The situation^ was harder where the alien died without having willed them away ; for then the land escheated to the sovereign without office found, on the fiction that an alien can have no heirs.^ Such was the doctrine long upheld in England ; and such, too, is the announcement of the law in our American States, independently of legislation to the contrary. In other words, an alien might take real estate by deed, or devise or other act of purchase, but he could not hold against the State ; his estate, therefore, was defeasible, good against all but the State, and good against the State 1 I Wms. Exrs. 12; Craig ». Leslie, 3 ^ Craig v. Leslie, 3 Wheat. 563; Wheat. 563, 589; Polk v. Ralston, 2 Ansticew. Brown, 6 Paige, 448; i Redf. Humph, joo; Bac. Abr. Wills, B. Wills, 10. And see supra, § 23. 2 Du Hourmelin v. Sheldon, i Beav. « i Jarm. Wills, 41 ; Shep. Touch 79; s. c, 4 My. & Cr. 525. 404. 8 I RoUe Abr, 194, pi. 8; Aleyn. 14. ' Co. Litt. 2 b; i Jam. Wills, 41. * I Beav. 79; 4 My. & Cr. 525. 36 CHAP. I.] TESTAMENTARY CAPACITY IX GENERAL. § 36 until proceedings instituted by inquest of office on its behalf had been carried to judgment.^ And this disability of aliens to hold real estate extends, pari passu, in principle to their devise of such real estate and the devolution of title therein to the devisee.^ But an alien could not take land by descent, because the law would not cast the descent upon one who could not by law hold the estate ;^ nor, on the other hand, could the inheritance of an alien's lands vest in others when he had died without having devised them.* § 36. The Same Subject: Late Statutes affecting the Disa- bility. — By the English Naturalization Act of 1870 these legal disabilities of aliens appear to have been substantially abolished in favor of a policy whose aim it is to protect equally in Great Britain the acquisitions of natives and for- eigners ; for by its second section an alien is empowered to take, acquire, hold and dispose of real and personal property of every description, in the same manner as by a natural-born British subject ; and it is further declared that a title to real and personal property of every description may be derived through, from, or in succession to an alien in the same man- ner in all respects as through, from, or in succession to a natural-born British subject.^ The language of this act is not confined to alien friends, nor does it distinguish in terms between aliens resident in England or non-residents.* Earlier legislation removing wholly or in part, or upon the 1 Wilbur V. Tobey, 16 Pick. 179; 4 W. & S. 145; Foss z/. Crisp, 20 Pick. Waugh V. Riley, 8 Met. 295. 121. 2 2 Kent Com. S3, 69 ; Marshall v. Con- * The land instantly " escheats to the rad, 5 Call, 364. people " in such a case. Per Chancel- ' Wilbur V. Tobey, and Waugh v. lor Kent in Mooers v. White, 6 Johns. Ripley, supra ; Fairfax v. Hunter, 7 Ch. 360. To the same effect see Mont- Cr. 603; Craig v. Leslie, 3 Wheat. 563; gomery v. Dorion, 7'N. H. 475. Fiott z/. Commonwealth, 12 Gratt. 564; ' ^ Act 33 Vict. c. 14, § 2 (1870). Jackson v. Adams, 7 Wend. 367, and There are provisos to this section, cases cited; Rubeck v. Gardner, 7 not important to cite, which prevent Watts, 4SS ; Ramires v. Kent, 2 Cal. the act from having a retrospective 558. An alien cannot be tenant by the operation. curtesy, for that is an estate which « i Jarm. Wills, 41, comparing 7 and vests by act of law. Reese v. Waters, 8 Vict. c. 66, § 3; I Chitty Contr. nth Am. Ed. 259. 37 § 37 LAW OF WILLS. [PART IL compliance of formalities, the disabilities of aliens to take, hold, or transmit estate, real as well as personal, may be found in most of the American States. And provisions thus modifying in a liberal direction the disabilities of aliens are embodied in some of the more recent State constitutions.^ As our present study concerns only the right of an alien to devise or become a devisee, these statute changes need not be examined in detail ; but their policy favors leaving titles in land undisturbed on account of the alienage of any former owner, so that the State may be no longer the subverter in effect, but the protector of such acquisitions. Land being held subject so universally to regulation by the local sover- eignty, the several States seem to have framed their indepen- dent systems as to the tenure of an alien, with very little reference to the national government or to one another; and so far as resident aliens in a State are concerned in this re- spect the local laws may well be left to operate. But, dictated though these civil privileges often are by a just and liberal policy, they must (to use the language of Chancellor Kent) be taken to be strictly local ; and until a foreigner is duly naturalized, in accordance with the Act of Congress, he is not entitled in any other State to any other privileges than those which the laws of that State allow to aliens.^ Those privileges and immunities of citizens in the several States which our federal constitution secures applies only to natural- born or duly naturalized citizens ;^ and the power of natural- ization, once exercised by the old thirteen States apart, has pjissed since 1789 to the Congress of the United States, that it may be uniformly and efficiently exercised by that sover- eignty which declares war, makes peace, forms treaties and regulates intercourse with foreign nations, whose subjects are to us aliens, as citizens of the United States are to them. § 37- 'W'liether a Sovereign may make a Will. — It is a matter of some consequence in Great Britain, though none in this country, whether the reigning sovereign may make a * See Lumb v. Jenkins, 100 Mass. ^ 2 Kent Com. 70, 71. 527; 2 Kent Com. 70, 71; i Wtas. « lb. And see U. S. Const, art. I. § Exrs. Perkins's note. 8; ib. art. IV. § 2. 38 CHAP. I.] TESTAMENTARY CAPACITY IN GENERAL. § 38 will. The property which belongs to himself and not to the State or his people, he ought on principle to be capable of transmitting by his testament, though not crown lands or moneys appropriated to the public service. A statute of George III. recognizes this distinction, by pronouncing all personal property which may have been applied for the sov- ereign's privy purse not only disposable by last will and testa- ment, but subject as assets to the payment of such private debts as his majesty may have left behind him.^ But as earlier jurists of the realm dreaded to touch the delicate in- quiry what things a sovereign might transmit by will as his own,^ so have the English spiritual courts positively disclaimed all jurisdiction to regulate the settlement of a royal estate, or even to admit a royal will to probate.^ § 38. 'Wills of Seamen, etc. -:- Seamen and soldiers are treated with peculiar indulgence in our law, as a class of persons not only entitled to the public gratitude, but requir- ing in a measure public protection against their own improv- idence and the wiles to which they are exposed. Hence are found various provisions in English, if not American, stat- utes, which the courts of probate jurisdiction interpret as rendering the wills of seamen void when made by way of security for debt ; a security of which the creditor takes the greater advantage, knowing that his debtor may die suddenly when far away, and so imposes a sort of duress to obtain it.* The equity of such statutes does not, however, extend be- yond the classes specified.^ 1 Goods of George III. 3 Sw. & Tr. had ever been probated in the English 199; I Add. 255; I Wms. Exrs. 13-15. ecclesiastical courts. The will of Henry 2 In the i6th year of King Richard VIII., or rather a copy of it, had Been II. it was assented in full parliament deposited in the registry, but merely, as that the king, his heirs and successors, it would appear, by way of safe custody might lawfully make their testaments, or public information. But in a single This question, says Godolphin, is re- obscure instance there was something solved in the affirmative; but of what like a reference to this jurisdiction, things is such a j-awftVjte/iiJ, as is safest namely, with reference to the will of resolved by a noli me tangere. Godolph. Henry IV. whose effects Henry V. took pt. I, c. 7, § 4. at their ap'praised value, i Add. 262. » Goods of Geo. III. 3 Sw. & Tr. 199; * i Wms. Exrs. 51, 52; Zacharias v. I Add. 262. In this case Sir John CoUis, 3 PhUlim. J90. Nicholl observed that no sovereign will ^ 2Cas. temp. Lee 87; I Wms. Exrs. 52. 39 § 4° LAW OF WILLS. [PART II. CHAPTER II. INCAPACITY OF INFANTS. § 39. Incapacity of Infants founded in their Indiscretion. — The incapacity of infants to make a will is founded in their in- discretion ; and the policy of declaring them under a disability in this respect is sound. For if incapable at law of making a binding transfer of what he owns to take effect while alive and before reaching majority, still less should an infant be thought a suitable person to regulate by a comprehensive act which he does not live to recall at full age the disposition of his whole estate at his death ; thereby preventing the State's equal scheme of distribution from operating, by an assertion of will which sinister influences artfully surrounding him may in reality have produced, rather than his own free choice. § 40. Earlier Rule more Favorable to Infants' TVills than that of the Present Day. — The earlier rule was more favorable to the infant's right of testamentary disposition than that which prevails in England and America at the present day. Indeed, the doctrine of the Roman civil law, to which the English ecclesiastical courts gave assent, was, that infants at the age of fourteen, if males, and twelve, if females, might make wills of their personal property.^ Nor did our canonists stand alone in granting such permission ; for common lawyers maintained the justice of allowing wills made at that early stage of life, the king's bench refused prohibitions when applied for to restrain the spiritual courts from passing such instruments to probate, and in various instances the practice received the express sanction of courts of chancery.^ The 1 Swinb. pt. 2, § 2; Godolph.pt. 6, c. ^ i Wms. Exrs. 16; 2 Bl. Com. 497; 8, §8; Deane v. Littlefield, i Pick. 2 Mod. 315; Gilb. Eq. Rep. 74; Holy- 239; I Wms. Exts. 7th Ed. 16; 2 BI. land, Ex parte, 11 Ves. 11. But the Com. 497. old books make some contradictory 40 CHAP. II.] INCAPACITY OF INFANTS. § 4I age of permission thus accorded was the same substantially, as that which invested the infant with a right to consider his guardianship for nurture ended, and to elect, or at all events nominate, a guardian for himself.^ This permission, we should further observe, was confined to an infant's personal property. From the Statute of Wills of 32 and 34 Henry VIII., infants under the age of twenty- one were expressly excepted ; ^ and prior to that statute, as we have shown, not even an adult subject could be pro- nounced capable, under the English law, of making a devise of land from the days of William the Conqueror.^ § 41. The Same Subject. — From this doctrine of testamen- tary capacity, during the latter years of minority with regard to personal property flowed certain consequences described by the older books. In computing the legal age of a person, whether for determining majority or otherwise, the day of birth should be included ; * hence, as fractions of a day are not reckoned, the testament of an infant born February i, 1700, would be good in case of a male, under the rule of capacity we are considering, though made January 31, 17 14; or, in case of a female, though made January 31, 1712.^ The assertions on this subject. 'Lord Coke So, too, a person attains his twenty-fifth states eighteen to be the age. Co. Lit. year when he becomes twenty-four. 89 b. Others mention seventeen, and Grant v. Grant, 4 Y. & C. 256. others, again, twenty-one. Co. Lit. 89 ^ i Sid. 162; Bac. Abr. Wills, B. 2; b, note by Hargrave; 2 Bl. Com. 497, Swinb.pt. 2, § 2, pi. 7. Judge Redfield Christian's note. The rule of the text (while admitting that there is an un- may be concluded, however, the correct broken array of authorities against him) one. lb. No local custom can be set objects on principle to this mode of up to sustain the will of a male infant computing the period from a person's made before he was fourteen years old. birth, so that in legal effect capacity is Com. Dig. Devise H, 2; I Wms. Exrs. 1 7. sometimes carried back "two full days 1 Schoul. Dora. Rel. 3d Ed. §§ 285, beyond the real date." i Redf. Wills, 289. 20, 21. The objection is not without 2 2 Bl. Com. 374, 375. force, so far as giving validity to wills * Supra, § 15. 1 Jarm. Wills, 33, ob- made far back in infancy is concerned; serves that custom in some places for the greater the restrictions judicial enabled an infant to devise even real construction may place upon such wills estate. See 2 Anders. 12. the better. Yet there can be no ques- ^ 6 Mod. 259; Schoul. Dom. Rel. 3d tion that the legal date of reaching Ed. §391; 2 Kent Com. 233; i Bl. Com. majority ought to be clearly and def- 463; State V. Clarke, 3 Harring. 557. initely established by thelaw's computa- 41 § 42 LAW OF WILLS. [PART II. will of course would operate as a valid disposition of chattels without and even against the consent of parent or guardian.^ Likewise, the infant's express approval of a will made earlier and during the period of nurture would establish it as strong and effectual, if given after accomplishing this age of testa- mentary capacity.2 A ratification, so to speak, similar to that by which one on reaching full age validates the contracts of minority^ seems here to operate; yet the mere circumstance of an infant having lived some time after the age when he became capable of making his will, should not without repub- lication (so say these older books) give validity to one made during his incapacity.* Indeed, this indulgence of a ratifica- tion at all transcends the bounds of good sense; and the better principle for modern times, under statutes which insist upon written wills and a formal execution, is that a will made during the age of incapacity can only be rendered valid at one's capable age by a republication with all the usual for- malities. § 42. Infant's 'Will Invalid, -where Want of Discretion, etc., is shown. — While the will thus executed could not be objected to merely because the testator was a minor, yet if the testator was shown not to be of sufficient discretion, that would over- throw the testament, as Blackstone says, whether his age were fourteen or four and twenty.^ Nor would indiscretion alone be a natural objection to so young a person's will, but tion, and if so, the diflFerence of about Aiid doubtless the rule in all popular a day for adjusting the rights and celebrations of an anniversary differs burdens of full capacity to the new from this common-law reckoning of adult appears by comparison of very one's majority. See I Redf. ib. little consequence. The present rule 1 Swinb. pt. 2, § 2, pi. 6 ; Bac. Abr. for computing one's majority is conveni- Wills, B. i. ent enough so long as it remains un- ^ I Sid. 1 62 ; Swinb. pt. 2, § 2, pi. 7. shaken. * Schoul. Dom. Rel. 3d Ed. §§ 432- But the usual mode of computing the 448. period under a will for the performance * I Sid. 162; Swinb. pt. 2, § 2, pi. 5; of some duty (aside from questions I Wms. Exrs. 17; i Redf. Wills, iS, relating to one's age) appears to view 19. But cf. the inaccurate language the anniversary from the day of com- of i Jarm. 33, citing Hinckley v. Sim- putation and not the day previous. The mons, 4 Ves. 160. day of a testator's death is excluded * 2 Bl. Com. 497; Deane v. Littlefield, from the reckoning of such a period. I Pick. 243, 42 CHAP, if,] INCAPACITY OF INFANTS. § 43 the undue constraint and influence besides, which adults seek- ing to regulate his disposition might exert upon him. Not- withstanding all this, there is an instance reported in which the will of a schoolboy only sixteen years old in favor of his schoolmaster was admitted to probate in the English ecclesi- astical courts above a century ago where no evidence of fraud or undue influence or constraint was shown.^ §43. Modern Legislation treats the TATills of Infants with Disfavor. — Modern legislation treats the wills of all infants, male or female, with obvious disfavor. Thus, the English statute I Vict, c, 26, expressly declares that "no will made by any person under the age of twenty-one years shall be valid." 2 The latest enactmen,ts of a majority of American States are to the same purport, establishing the age of twenty- one as that at which a person of either sex ceases to be dis- qualified from making a will either of real or personal estate ; and among these States are Maine, New Hampshire, Massa- chusetts, New Jersey, Pennsylvania, North and South Caro- lina, Florida, Mississippi, Texas, Ohio, Indiana, Kansas, Kentucky, Michigan, Minnesota, and Nebraska.^ But other States vary in provisions concerning, the testamentary capa- city of infants. In California and Connecticut, for instance, eighteen years is taken as the testamentary age for both males and females ; whilp various codes adopt a still earlier standard of discretion, distinguishing, however, in some in- stances between males and females or even between females married and unmarried. In New York, by a strange example, the age for making a will of personalty is eighteen in males and sixteen in females ; nor is this the only State or the only quarter of the Union. where the line is drawn between the kinds of property, so that an infant's personalty but not his real estate may be disposed of by testament before he reaches 1 Arnold w. Earle, Cas. temp. Lee, Exrs.pteface, anda Jann. Wills; appen- 529; Mss. June 5, 1758; I Wms. Exrs. dix. 16. ' 4 Kent Com. 506; i Jarm. 32, 2 See I "Vict. c. 26, § 7, cited I Wms. American note. 43 § 44 LAW OF WILLS, [PART II. the age of twenty-one ; ^ an antiquated distinction, it would seem, when the immense expansion of wealth in personalty during the present century is considered. § 44. Infant's Appointment of a Testamentary Guardian. — It is worth observing here that the policy of permitting an infant to create a testamentary guardianship has changed correspondingly within the last two hundred years. Under the statute of 12 Car. II. c. 24, which instituted testamen- tary guardianship, any father, whether infant or adult, might by last will or testament dispose of the custody and tuition of his child, so as to carry over the entire management of that child's property, during its minority or for any less period prescribed.^ But since the statute of i Vict. c. 26, an infant father cannot at English law create a testamentary guardianship at all.3 ' States as wide apart as Rhode where such guardian took an active Island, New York, Virginia, Alabama, part in its execution. Seiter v. Straub, Missouri, and Oregon follow this latter i Demarest (N. Y.) 264. This case principle in their codes. For these bears strongly against the policy of the statutes (which are cited in I Jarm. New York Code, in permitting wills of Wills, 32, Bigelow's note; 4 Kent Com. any kind to stand, when made by per- 506), see more particularly the language sons so young. An infant in New York of the several Codes, where minute dif- cannot, of course, devise his land. 47 ferences of expression will be found, and Hun, 109. where legislation is liable to change the ' Schoul. Dom. Rel. § 287. local rule any year. 3 jj.^ ggg language of § I of Stat. 1 Scarcely any American cases of con- Vict. c. 26, to the effect that the word sequence have arisen on this subject, "will" under that act shall extend to See Moore v. Moore, 23 Tex. 637; 7 an appointment by will or by writing in Lea. 240. A will in favor of her the nature ofawill in exercise of a power, guardian, made by a female ward of to the appointment of testamentary sixteen, in poor health, and in most guardians and to any other testamentary matters easily influenced, should, it is disposition, held, be subjected to close scrutiny, 44 CHAP. III.j INCAPACITY OF MARRIED WOMEN. § 45 CHAPTER III. INCAPACITY OF MARRIED WOMEN. § 45 • Incapacity at Common La'w arising from Coverture. — The incapacity of married women to make wills has its root in our common-law principle of coverture, by which husband and wife were treated as one person in such a sense that the woman took her place under the cover or protection of her lord ; her rights not less than her obligations becoming sus- pended, for the better harmony and peace of the marriage state, while the husband exercised an undisputed sway as head of his household.^ By the fundamental terms of their nuptial union, the husband remained capable of making his own will, though the wife if surviving could claim her dower, or life-thirds interest, in his real estate. But the wife, on the other hand, parted with all control over her own property while coverture lasted, presented her spouse outright or con- ditionally with the whole of her personal property, conferred upon him the usufruct during marriage of her real estate, which was enlarged, if a child was born alive, to a right by curtesy lasting for his whole lifetime.^ With the property brought into the marriage state thus parcelled out by the common law, and a surviving husband entitled, moreover, to administer upon the estate of his deceased wife for his own benefit and recover her outstanding personal property to his own use and enjoyment,^ it is not strange that we find the female spouse laid under the disability of making her own will. For the law itself regulated the descent of her real estate, excepting her expressly from the Statutes of Wills, 34 and 35 Hen. VHI. c. 5 ;* and as to her goods and chattels, 1 Schoul. Hus. & Wife, § 54; i Bl. » Schoul. Hus. & MTife, §§ 40S-409; Com. 442, 445. Schoul. Exrs. & Admrs. §§ 98, 106, 126. 2 Schoul. Hus. & Wife, § 86; l Bl. * See 2 Bl. Com. 497, 498; I Jarm. Com. 442-445; 2 Kent Com. 1 30-143. Wills, 32; tupra, pt. I. This makes a 45 § 46 .V LAW OF WILLS. [PART IIj her personalty, any will she might be declared capable of making, would necessarily be in derogation of the rights of her surviving husband. A married woman,, therefore, could not make a valid will. Her incapacity in this respect was not founded in contempt of her discretion ; nor, save, perhaps, for the subtle marital influence which husbands of strong character are known to exert, in any legal denial of a capacity to exercise free will ; but rather, because of these disabilities of coverture which general policy imposed and in order that the husband's marir tal control of her property and right of succession might be preserved unimpaired. As maid or widow, any woman who had turned her majority was as free to dispose of property by a testament as man himself.^ § 46. Marriage a Revocation. — So, too, the marriage of a feme sole was treated by the common la!w as so entirely changing her condition in life and relations as to work ipso facto a revocation of any will she might have executed while single.^ And such too was the effect, even where she sur- vived her husband and was thus restored to the condition of single woman ; for his death did not revive such will.^ But marriage had no such summary operation upon a man's will ; as his right to hold property and dispose of it by testament was not seriously impaired by his nuptials, neither did those nuptials revoke the will he had previously made.* married woman utterly incapable of de- materially from that of infancy, idiocy, vising lands, under an English statute or lunacy. It does not arise from nat- which continued in force when the ural infirmity, but is the creature of civil American colonies were planted. But policy." It may consequently be dis- c.f, Wagner v. Ellis, 7 Penn. St. 413, peiised with in various instances unlike which lays stress rather) upon the un- the other disabilities referred to. I doubted circumstance that of the wife's, Jarm. 38. lands (except for curtesy) a surviving * 4 Co. Rep. 60, 61 ; Hodsden v. husband had in general no legal dispo- Lloyd, 2 Bro. C. C. 534. sition, since they descended to her heiis. ' Cotter v. Layer, 2 P. Wms. 623; A wife's disqualification to devise ex- Garrett v. Dabney, 27 Miss. 335 ; Kurtz isted at common law prior to the statute v. Saylor, 20 Penn. St. 205. And see of 34 & 35 Hen. VIII. c. 5, which was Willock v. Noble, L. R. 7 H. L. 580, explanatory of statute 32 Hen. VIII. 597. c. 1. * Schoul. Hus. & Wife, §§ 442, 457. ^ " The disability of coverture differs This subject of revocation by a subse- 46 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 48 § 47. Modern Changes effected by Courts and Legislation as to "Wife's Incapacity. — Maxims of equity, together with the married women's legislation of the last half century, have, however, as we shall show in the course of this chapter, made immense inroad into this early doctrine of the wife's incapac- ity for testamentary disposition ; so that we find the female spouse, in these days, not only permitted to make her will, with considerable freedom, but relieved almost wholly of the old disabilities which the doctrine of coverture imposed upon her. Whether for better or worse, the inevitable modern tendency, both in England and throughout the United States, is from conjugal subjection to conjugal independence and the equality of the sexes, so far at least as the marriage relation is left to depend upon human institutions.^ § 481' Exceptions to Incapacity ; Wife may bequeath 'with Husband's Assent. — First of all, various exceptions have been engftafted upon the wife's incapacity to make a will. Thus b^ the English law the wife may make a valid will of per- sonal property, with the consent of her husband. But this is upon the condition that he survives her, and does not elect, after her death, to disaffirm his consent already given. "the will of a married woman, when presented for probate, is treated on the face of it as a mere nullity.^ But where it is alleged to have been made with the assent of the husband, the court assumes jurisdiction. Hence the wife's right in such cases is founded upon the husband's gift or permission, or, as it is said, the waiver of hjs own right to administer for his own benefit.' And if the husband dies before his wife, her will is void so far as it could have derived any validity from his consent, and fails to operate against her next of kin.* quent marriage with regard to either Fane, £x parte, 16 Sim. 406; i Wms. spouse, will be treated more at length Exrs. 53. under Revocation, /w/; and modern Stat- * i Redf. Wills, 23, 25; Stevens v. utory changes in the rule will there be Bagwell, 15 Ves. 156; i Wms. Exrs. pointed out. SS; Smith, Goods of, i Sw. & Tr. 127. 1 See on the general subject Schoul. * lb. And see Willock v. Noble, L. Hus. & Wife, §§ 7, 184-188. R. 7 H. L. 580, 597, which intimates * Tucker v. Inpian, 4 M. & G. 1076; that though the husband had given some 47 § 48 LAW OF WILLS, [part IL This exception of a husband's assent is one which chancery and probate courts have asserted, without seeking the aid of any favorable legislation on this point. And the "license" in question (to borrow Blackstone's term^) is so nearly a gift of his own property that in order to give it effect the husband must have assented to the particular will which the wife has made. His general assent that she may make a will is not deemed suiificient.^ Nor can he be said to give his assent while ignorant of the contents of the will, and un- able to ascertain them.^ And the time when this assent on his part shall make the particular will effectual or be with- held so as to defeat it is taken to be, not while the wife was living but after her death, and in fact when the will is offered for probate and the self-sacrifice on his part would be une- quivocal. He may therefore revoke an assent given by him to the wife herself at any time while coverture lasts or after her death. before probate.* But the assent thus requisite on the husband's part may be inferred from circumstances subsequent to the coverture. And if after his wife's decease he acts upon the will or once agrees to it, he is not considered at liberty to retract his assent afterwards, and oppose the probate.^ Such acts even, as expressing gratification at his wife's selection of an execu- tor, or recommending him to particular places to procure suitable preparations for the burial, may constitute a conclu- sive presumption of assent after the wife's death ; at least, if the executor has been thereby induced to act under the instrument.^ So, too, it has been decided that the husband cannot withdraw his assent before probate, after giving the informal assent to the will, his decease Hus. & Wife, § 458; i Wms. Exrs. before the wife deprives such assent of 54. its force. 6 Brook v.. Turner, 2 Mod. 170J 1 2 Bl, Com. 498. Maas v. ShefHeld, 10 Jur. 417; i Rob. 2 Rex z/. Bettesworth, 2 Stra. 891 ; i Ecc. 364; i Wms. Exrs. 54. Where the Wms. Exrs. 54. husband is named the executor and he a Willock V. Noble, L. R. 7 H. L. proves the will generally, his assent will 5^°- be inferred. Fane, Ex parte, 16 Sim. * Brook V. Turner, 2 Mod. 170; i 406. Mod. 211; Swinb. pt. 2, § 9; Schoul. « i Redf. Wills, 24; \ Mod. 211; 2 Mod. 170. 48 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 49 sole legatee a written memorandum containing his sanction of the will.i And according to the older books, "a little proof" will suffice to make out the continuance of the hus- band's assent after the wife's death where she made the will in pursuance of an express agreement or assent on his part.^ In general the probate of a will is conclusive, both of the capacity of the testator, being 2ifeme covert, to make the will, and of the husband's consent. § 49. The Same Subject; American Rule. — The rule is gen- eral in this country that the husband may allow his wife to make a valid will of her personal estate, though not of her lands,^ and that his assent cannot be revoked after due pro- bate of the will.* And, as in English law, such a will may operate, by way of gift from the husband, so as to deprive him of the right to administer on the wife's estate for his own benefit, so as to vest her personal property of the corporeal or incorporeal sort in others, which otherwise would have been his own, or so as to enable some other person to settle the estate as her executor. The husband's general assent to make a will does not suffice, but must attach to the partic- ular testamentary disposition which she may have made.^ This assent of the husband, it is likewise said, should be given at the time the will is proved ; ^ and there is authority for the assertion that the husband may withdraw his assent at any time before probate.^ But circumstances may es- 1 Maas V. Sheffield, 10 Jur. 417; I heir thereto under the statute of descents. Rob. Ecc. 364. Wagner v. Ellis, 7 Penn. St. 413. • Brook V. Turner, 2 Mod. 173, where * Cutter v. Butler, 5 Fost. 343; Fisher the old law is stated at length; I Wms. v. Kimball, 17 Vt. 323; Emery v. Neigh- Exrs. 54. And see Maas v. Sheffield, bor, 2HaIst. 142; George z/. Bussing, 15 supra, where ]iusband had witnessed his B. Mon. 558; Wagner v. Ellis, 7 Penn. wife's will when it was executed. St. 413; Lee v. Bennett, 31 Miss. 119; ' Local statutes, that for instance of Newlin v. Freeman, I Ired. Law, 514. Massachusetts, will be found to vary 6 Kurtz v. Baylor, 20 Penn. St. 205 ; this exception of lands. See/urf, § 57. George v. Bussing, 15 B. Mon. 558; So, too, it is held in Pennsylvania (but Cutter v. Butler, 25 N. H. 357. without reference to the statute of Henry ^ lb. VIII., supra, § 45) that the husband's ' See Wagner, Estate of, 2 Ashm. assent may give validity to his wife's 448; Van Winkle v. Schoonmaker, IJ testament of land when he is her sole N. J. Ch. 384. Cf. Cutter v. Butler, 25 N. H. 357. 49 § so LAW OF WILLS. [pART IL tablish the surviving husband's assent at some earlier date.i The will should be presented for probate ; and the decree of the probate court establishing the will of the married woman concludes its validity and her right to make it.2 Where local legislation provides an effectual assent to the wife's will in some other mode, as by the husband's writing, or imposes some other variation of the doctrine above stated, exceptions of judicial statement of course occur.^ This covert- ure doctrine of a will by the wife with her husband's license or assent is now dispensed with, wholly or partially, in the codes of various States, as we shall see presently.* § 50. Wife's Disposition as Ezecutriz. — Another class of so-called exceptions to the wife's incapacity js, when she takes property in the character of executrix and her will is confined to what she takes in that character ; in which case she may make a will without her husband's assent, and the ecclesiastical or corresponding court assumes jurisdiction.* But if the wife had before marriage reduced to possession personal chattels, to which she was entitled as executrix and residuary legatee, or in some other way the husband's full ownership had attached, the wife cannot dispose of them by will.6 Since this exception does not concern property to which the wife takes a beneficial title, it can hardly be called an exception at all. For the effect of such an instrument is merely to pass, by a pure right of representation, to the tes- 1 Cutter V. Butler, supra; Wagner Ward t*. Glenn, 9 Rich. 127; Cutters. V. Ellis, 7 Penn. St. 413; Grimke v. Butler, 25 N. H. 357; Lee v. Bennett, Grimke, i Desaus. 366; 2 ib. 66. In 31 Miss. 119. these South Carolina cases the fact that ' The Massachusetts statute being pe- the husband wrote out the will appears culiar as to the husband's assent, the to have been taken as strong proof of decisions of that State are not here per- an assent on his part. But wher.e there tinent. Smith v. Sweet, I Cush. 470; was no contract which made the prop- Silsby -w. Bullock, 10 Allen, 94; Bur- erty the wife's separate property during roughs v. Nutting, 105 Mass. 228. marriage, the better opinion defers the * Post, § 56. time of assent until the wife dies, leaving ' Jucker v. Inman, 4 M. & G. 1076. her husband surviving. « Scammell v. Wilkinson, 2 East, 552; ^ Parker v. Parker, 11 Cush. 519; Cutter v. Butler, 25 N. H. 353. 50 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 5 1 tator or prior owner, such of his personal assets as remain outstanding.^ The married woman, in other words, has as executrix power to make a will and to appoint an executor for the purpose of continuing the representation to the origi- nal testator.2 § 51- 'W'ife's Will of Separate Property; English Rule. — A third class of exceptions, recognized in England, is where property is given or settled, or is agreed to be given or set- tled, to the wife's separate use. In such a case, and with reference more especially to things personal, the wife has long been permitted to dispose of such property to the full extent of her interest, although no particular form be pre- scribed in the instrument creating the trust. This follows as an incident to the right of beneficial enjoyment ; it makes her right of disposition complete.^ " I have always taken this ground," said Lord Thurlowin 1789 of this class of cases, " that personal property, the moment it can be enjoyed, must be enjoyed with all its incidents." * And it may be affirmed, as a general principle, that personal property which has been acquired by a married woman under such circumstances that it became her separate estate may, independently of legislation which reigulates the subject differently, or of express restraints, be dealt with by her as if she were a single woman.^ There is no reason for distinguishing between real and personal estate settled to the wife's separate use, save so far as the old statutes of disability to devise may be found to operate against married women. But the English cases for some time manifested a doubt on this point, and the testa- 1 Hodsden z/. Lloyd, 2 Bro. C. C. 534; 48; Smith, Goods of, ib. 125; Grofts, I Wms. Exrs. 54; Schoul. Hus. & Wife, Goods of, L. R. 2 P. & D. 18. §§ 163, 460. As to what shall constitute the wife's 2 Willock V. Noble, L. R. 7 H. L. separate property, so as to be held sub- 580, 590, per Lord Chancellor Cairns. ject to this mode of disposition, see 8 Fettiplace v. Gorges, i Ves. Jr. 46; Schoul. Hus. & Wife, Part V. cs. 1-5. s. c, 3 Bro. C. C. 8; Lord Eldon in The English practice is to grant a Rich V. Cockell, 9 Ves. 375; i Wms. limited probate of the wife's will so as Exrs. 61. to operate upon the separate property * Fettiplace v. Gorges, i Ves. Jr. 46 ; disposed of. See Crofts, Goods of, L. s. c, 3 Bro. C. C. 8. R. 2 P. & D. 18. 6 Haddon v. Fladgate, i Sw. & Tr. 51 § 52 LAW OF WILLS. [PART IL mentaryy«j disponendi was thought not so clear in the case of separate real estate as of separate personalty. But since the separate use originated as the creature of equity, English chancery courts appear to have concluded to embrace under its protection separate property of either class. For in Tay- lor V. Meads, the wife had lands conveyed in trust to her sep- arate use, with a power given her to appoint it by any instrument in writing " to be by her signed, sealed and de- livered" after a certain manner; the formalities required being greater than the Statute of Wills required for testa- mentary dispositions. The property was limited over to others in default of such appointment. She made an instru- ment in writing, which conformed to the Statute of Wills, but which, not being under seal, was not in accordance with the power given her. It was decided that the instrument was defective as the execution of a power of appointment ; but that it was a valid devise, such as she had the right to make, of estate settled to her sole and separate use.^ And the rule of English chancery is now well settled that a mar- ried woman may pass her separate real estate by will as a feme sole, not less than her personal property.^ § 52. The Same Subject. — In thus recognizing the right of a wife to dispose by testamentary instrument of her separate property chancery assumes that neither legislation on the subject of wills, nor a special restraint combined in the instru- ment which settles the property to her separate use, obstructs the wife's free disposition by testament. Such legislation or such a restraint, if it exist, must operate ; and hence the clause "against anticipation," so-called, which in English settlements of this kind has often been used to tie up the wife's hands and prevent her from alienating or incumbering the separate'property during coverture, excludes her right as a married woman to alienate it by will.^ ^ Taylor v. Meads, 4 De G. J. & S. a will defeats the husband's equitable 597; contra, Buckell v. Blenthorne, 5 right to curtesy. Cooper v. Macdonald, Hare, 131. 7 Ch. D. 288. 2 See Hall v. Waterhouse, 5 Giff. 64; » See Schoul.'Hus & Wife, § 202, as Pride v. Bubb, L. R. 7 Ch. 64. Such to the clause of " restraint upon antici- 52 CftAP. III.] INCAPACITY OF MARRIED WOMEN. § S3 On the other hand, as this doctrine of a separate use ex- tends to settlements antenuptial or (if founded upon a consid- eration) postnuptial, we may conclude that the will of a married woman may operate as to property thus settled upon her without restriction, as incidental to her right of alienating and disposing of it, and without any express clause empower- ing her.^ And the will permitting her testamentary disposi- tion of her separate property prevails, whether such property be in possession or reversion, whether vested in present interest or in expectancy.^ And where she may thus dispose of the principal of the fund she is presumed capable of dis- posing of income, savings and accretions as well.* Nor is it essential that the property came to her separate use without the intervention of trustees ; for it is a well-known rule that equity will treat the husband himself as trustee rather than suffer the wife's beneficial enjoyment of her separate prop- erty to fail.* Separate earnings and the profits and stock in trade of a separate business carried on by the wife may carry all the incidents of separate property.^ A husband's declaration of trust in favor of his wife for her separate use may be either express or implied.® Moreover, the wife's will of separate property being a good one during coverture, the will continues good when coverture ends, whether wife or husband be the survivor.'^ § 53. The Same Subject: -vrhere Spouses live apart. — So far extends our doctrine of a separate use involving a separate pation" to be found in settlements to ' Prec. Ch. 44; i Eq. Ca. Abr. 66, the wife's separate use. Troutbeck v. 68; Brooke v. Brooke, 25 Beav. 342; Boughey, L. R. 2 Eq. 534, bears in this Darkin v. Darkin, 17 Beav. 578. direction. * Tappenden v. Walsh, I Phillim. 1 I Jarm. Wills, 39. And see as to 352; i Wms. Exrs. 62; I Jarra. Wills, such settlements, Schoul. Hus. & Wife, 40; Hall v. Waterhouse, 5 Giff. 64, Part VII. which supported the wife's devise of 2 Bishop V. Wall, 3 Ch. D. 394; land on such a principle. And see Lechmere v. Brotheridge, 32 Beav. 353; Schoul. Hus. & Wife, § 191. I Wms. Exrs. 61, 62; i Jarm. Wills, 6 Ashworth w. Outram, 5 Ch. D. 923; 40. As to the wife's will of prop- Haddon v. Fladgate, I Sw. & Tr. erty in which she has an expectant 125. interest, but that interest does not actu- « Baddeley v. Baddeley, 9 Ch. D. ally vest in her until after her husband's 113; Schoul. Hus. & Wife, §§ 291-32Q death, see Willock v. Noble, L. R. 7 ' Bishop v. Wall, 3 Ch. D. 194. H. L. 580. 53 § 54 LAW OF WILLS. [part IL right of disposition, that covenants under a separation deed for the wife's benefit are now upheld as not obnoxious to sound policy. Whatever the wife acquires and holds for her sole and exclusive use and enjoyment under such a deed may accordingly pass by her will as though she had no husband.^ More generally, the savings of money which a husband trans- mits from time to time to his wife from whom he lives sepa- rate, for her maintenance and support, have in equity all the incidents of separate estate.^ The wife's earnings, too, while abandoned by her husband usually follow the same principle, the subject being expressly regulated in great measure by legislation.* The wife's capacity as in effect that of a single woman becomes thus extended from the old hypothesis of the hus- band's civil death. Wherever her husband is dead at the law, a married woman may make a will. As where he has been banished for life ; * or is transported for life ; ^ or is an alien enemy.^ For in such cases the wife is no longer re- garded as under the disabilities of coverture. And some have thought that while a husband's marital rights are suspended, as by his temporary banishment, his wife ought to be able to make a valid will of property acquired _ by her in the meantime.T § 54- 'Wife's Will of Equitable Separate Property; American Rule. — The American rule follows the English, as to the 1 Pride V. Bubb, L. R. 7 Ch. 64. * Portland v. Prodgers, 2 Vern. 104; 2 Brooke v. Brooke, 4 Jur. N. S. 472;. Compton v. CoUinson, 2 Bro. C. C. s. c, 25 Beav. 342; Schoul. Hus. & 377;. i.Wms. Exrs. 63. Wife, § 485; Tharp, ^^, 3 P. D. 76. « Newsome v. Bowyer, 3 P. Wms. 8 See Haddon v. Fladgate, i Sw. & 37; Martin, Goods of, 15 Jur. 686; Tr. 4^, where a verbal separation had Atlee v. Hook, 23 L. J. Ch. 776. taken place, and the spouses never ^ i Salk. 116. afterwards cohabited. See also Schoul: ' Franks, Ex parte, i Moore & Sc. Hus. & Wife, § 486. II. But see Coombs v. Queen's Proc- The English divorce act, 1857, recog- tor, 2 Roberts. 547. For application nizes the will of a married woman as to of this doctrine to the case- of a felon property acquired by her after a pro- convict transported for life, notwith- tective order. This order issues on the standing his conditional pardon, see ground of her husband's desertion. Martin, A, 2 Roberts. 405 ; Coward, /?c, Worman, Goods of, i Sw. & Tr. 513; i 4 Sw. & Tr. 46; I Jarm. Wills, 40 and Wms. Exi-s. 60. note. 54 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 5$ wife's power to dispose of her equitable separate property/ wherever American courts have assumed full jurisdiction of the "separate use" as the creature of equity. Hence it is ruled in several of the United States that the wife's will of property settled to her separate use may operate ; and that a married woman, when not restrained from alienation, may, as an incident to her separate estate, and without any express power, dispose of it by instrument inter vivos or will.^ But the doctrine is by no means so universally nor so boldly sus- tained by our chancery, courts as in those of England ; and inasmuch as " separate property " is of statutory rather than equitable origin from our American point of view,^ and local statutes in point are constantly found touching the wife's will and her testamentary capacity, we may defer the discussion for a moment. § 55. Modern English Statutes of 'WiUs. — Married women, we have seen, were expressly excepted from the Statute of Wills, 34 and 35 Henry VIH. c. 5, though no new disability was thereby created, since they had been regarded as incapa- ble at a much earlier date.^ The present English Statute of Wills, I Vict. c. 26, § 8, provides that " no will made by any married woman shall be valid, except such as might have been made by a married woman before the passing of this act." * But the exceptions have so multiplied upon the pro- hibition of late years as to constitute of themselves a permis- sive rule. Nevertheless, it is laid down that the classes of exceptions remain essentially as before ; namely, those of wills with the husband's assent, of dispositions as executrix and in another's. right, and of separate property,; to which might be added that anomalous class of wills in execution of a power, of which we shall presently speak.^ It is the encroaching 1 2 Kent Com. 170, 171 ; Porcher v. upon which the parties have acted dur- Daniel, 13 . Rich. 349; Buchanan v. ing coverture, Emery v. Neighbor, 2 Turner, 26 Md. I; Cutter v. Butler, 25 Halst. 142. N. H. 343; Burton v. Holley, 18 Ala. 2 Schoul. Hus. & Wife, §§ 186, 204. 408; Bradish«/.,Gibbs, 3 John. Ch. 523; ^ Supra, % 45. Holman v. Perry, 4 Met. 492. And see * i Wms. Exrs. preface; appx. as to the binding force of a defective ^ Willock v. Noble, L. R. 7 H. L^ settlement tQ the wife's, separate use 580, /^j- Lord Chancellor Cairns. 55 § 56 LAW OF WILLS. [PART IL disposition of modern times to deal with the wife's property as her separate instead of general property (encouraged still farther by the Married Women's Property Acts of 1870 and 1882), carrying inevitably with it the fuller recognition of her testamentary alienation as an incident of the Jus disponendi in such property, which more than anything else wears down by undermining the old doctrine of a wife's incapacity to make a will in that country.^ § 56. Wife's 'Will under Late American Statutes. — Now to recur to the subject as the law stands to-day in the United States. In this country the great revolution which legislation has effected in the property rights of married women leaves its traces upon their testamentary privileges. Local statutes, not those alone which recognize or create a separate property in the wife, or turn her whole general property into separate property, but those relating explicitly to the wills of married women, are to be found in perhaps every State in this Union ; and to keep pace with public policy, one must study the latest local enactments on this subject.^ Many of these codes may be said to give the wife a right to dispose of her general property by will ; but few in truth have received much judi- cial exposition, or, indeed, any at all. On the whole, the principles thus stated or indicated, as embodying what we may call an American policy, though not uniformly expressed in clear and unambiguous language, are that the wife, if of full age and sound mind, may devise or bequeath, by her sole will, whatever separate property, at least, the statutes secure to her ; and that such will shall be valid without the joinder or assent of her husband.^ But power to cut off her husband 1 Under the latest married women's citation of Codes, in i Jarm. Wills, 38, acts, probate is now granted in England Bigelow's note ; Stimson's Am. Stat, to the will of a married woman in the Law, § 6460. ordinary form, without any exception or * The language of these local statutes limitation. Smart v. Tranter, 40 Ch. D. is sometimes restricted to the wife's 165; iiP. D. 169; 12P. D. 137. See " separate " property ; in other States Smart v. Tranter, ib. as to the procedure the word " separate " is not employed, now required, where a husband disputes Some States use the word " devise " and the capacity of his wife to make a will, omit the word " bequeath," thus suggest- ' See Schoul. Hus. & Wife, appendix; ing (though so strained and unnatural S6 CHAP. III. J INCAPACITY OF MARRIED WOMEN. § 57 by her sole will is restricted in some States.^ The latest legislation on the subject (much of which bears date in the several States not earUer than 1873) has a tendency to con- fer independent testamentary powers upon the wife without qualification of terms as to her property and apart from her husband's concurrence ; ^ in fact, to place spouses of either sex, if it be morally possible, upon the same equal plane of holding and disposing capacity. Property which was not really the wife's in her own right, but the husband's, at the time of her death, cannot, of course, be the subject of her devise or bequest ;3 nor that which vests at once in him upon her death, by the rule of survivor- ship.* But the husband's joinder or other expression of assent should make his wife's will valid and conclusive both against him and his creditors.^ § 57. The Same Subject. — In some States the capacity of married women to execute a valid will seems to have been conferred by implication ; in others clearly and expressly ; and the latest enactments usually confer the capacity in broad and positive terms. Much latitude is afforded, moreover, in dis- cussing whether the legislature meant to confer testamentary capacity as to property of the wife subject to the husband's old marital rights, or regardless of them ; and this involves the further inquiry, what is taken to be the wife's separate property, how greatly local legislation may have enlarged equity rules in this respect, and whether, in a word, all her an interpretation would not be likely to is a corresppnding one. Some legisla- prevail) whether the legislature meant tures have manifested special hostility to that the wife could dispose of her lands, the husband's influence over his wife's but not of her chattels. Other differ- disposition. ences will be observed by minute com- ^ See SchuU v. Murray, 32 Md. 9 ; parison of these codes. Noble v. Enos, 19 Md. 72 ; Stouten- 1 In Massachusetts it is provided that burgh v. Hopkins, 45 N. J. Eq. 890 ; the wife cannot deprive her husband of Knox's Estate, 131 Penn. St. 220. more than one-half her personal estate ^ Alsop v. McArthur, 76 111. 20 ; without his consent in writing. A state- Vreeland v. Ryno, 26 N. J. Eq. 160. mentof this consent upon the instrument * Stroud v. Connelly, 33 Gratt. 217. appears necessary. Smith v. Sweet, i ^ Beals v. Storm, 26 N. J. Eq. 372 ; Cush. 470. In other States the restric- McBride's Estate, 81 Penn. St. 303. tion applied to the wills of either spouse 57 § 57 LAW OF WILLS. [PART IL own property may not at length have been placed under her general power of disposition. Statutes of Vermont giving mar- ried women power to devise their real estate by last will and testament have received a liberal interpretation as to person- alty, because equity jurisdiction in that State gave a liberal scope to their general dominion over separate property.^ But in States which draw the doctrine of separate use from local legislation rather, and whose legislation proceeds with reserve, a more stringent rule of interpretation is enforced on a hus- band's behalf.^ This whole difficult subject has as yet received but little attention in the courts, though much from the legislature.^ But there are already some decisions sustaining the wife's right to devise or dispose by her will, duly executed, of real estate held to her sole and separate use ; * not to add, of her general lands, as well as of personal property. And she may even, in certain States, cut off her husband's right of curtesy by observing the statute formalities of execution ; in Massa- chusetts and other States, for instance, by a will executed with her husband's written assent;* in Illinois, if not under various codes, without such assent.^ And in respect to cur- 1 See Caldwell v. Renfrew, 33 Vt. Rich. 369 ; Michael v. Baker, 12 Md. 213; Holmes ». Holmes, 27 Vt. 765. 158. It has been perceived that this ^ In Compton v. Pierson, 28 N. J. Eq. right of testamentary disposition, as in- 229, the court treated the wife's right cidental to the wife's beneficial enjoy- pf testamentary disposition as matter for ment of her separate property, has been strict construction. And see Johnson but gradually conceded in England, and V. Sharp, 4 Cold. 45, to the same effect ; that the beneficial rule was supposed Hickman v. Brown, 88 Ky. 377. for a long time to apply to her personal « In Virginiai Maryland, and the estate simply. Supra, ^e,\. Southern Atlantic States generally, as * Albrecht v. Pell, 18 N. Y. Supr. well as Alabama,- the. doctrine of the 127; Emmert v. Hays, 89 111. i. wife's testamentary capacity seemed, ^ ganborn v. Batchelder, 51 N. H. until very recently, to be^ founded upon 426; Silsby v. Bullock, 10 Allen, 94 ; the earlier English cases. But in these McBride's Estate, 81 Penn. St. 393. and some other .States which borrow Presumably, under such statutes, a wife largely from the chancery jurisprudence cannot cut off her husband's curtesy of England, perhaps the wife would without his consent, where curtesy is still have been allowed to devise and be- a recognized legal interest. 132 Penn. queath property duly settled to her St. 533. See Middleton v. Steward, 27 separate use, or to execute a power as N. J. Eq. 293. the case rhight'be. ; See Burton v.. Hoi- « Pool v. Blakie, 53 111. 495. ley, 18 Ala. 408; Porcherw. Daniel, 13 And see Cavenaugh ». Ainchbaoker, 58 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 58 tesy and bequests in lieu thereof, the husband may, in some States, be put to his election, as the widow has been in re- spect of her dower.^ § 58. Wife's Will under the- Civil Latv ; Present Tendency to Conjugal Equality. — It is well understood that, by the Roman civil law, a married woman possessed the same testa- mentary capacity in all respects as zfeme sole? And such is the law in France, Holland, Spain, and the European couii- tries generally.^ In.. Scotland the wife is permitted to be- queath her share of the common goods, even without the husband's assent.* The early policy of England as to the wills 36 Ga. 500; Stewart v. Ross, 50 Miss. 776. There are various States where, under statutes not the most recent, the wife's will of property settled to her separate use has been allowed to operate by way of appointment. Buchanan v. Turner, 26 Md. I ; Porcher v. Daniel, 13 Rich. 349. See § 64, po^t. And. of course her will, made by permission of her hus- band, where the same is duly admitted to probate, supra, § 49. In Kentucky, as the code stood some years ago, while a married woman's will was to be re- stricted in operation to such estate as the law authorized her to dispose of by will, and the conclusiveness of a probate judgment was regulated accordingly, there was a liberal disposition mani- fested to treat land belonging to a mar- ried woman who lived apart from her husband without blame on her part, as so far her separate estate that she might dispose of it by will. Mitchell v. Holder, -8 Bush. 362 ; Hiram v. Griffin, 8 Bush. 262. Independently of late statutes con- ferring an express capacity, the older States agree that a married woman can- not devise lands not held in her sole right. Osgood v. Breed, 12 Mass. 525; Taber v. Packwood, 2 Day, 63; West v. West, 10 S. & R. 446; Marstoh v. Nor- ton, 5 N. H. 205; Newlin v. Freeman, I Ired. Law, 514. But the Ohio courts many years ago decided that under a State enactment, giving " every male person aged twenty-one years or up- ward, and every female aged eighteen years or upward " the power to devise property, a married woman could make a valid will to pass her real estate. Allen V. Little, 5 Ohio, 65. This was the case of a married woman living apart from her husband. In New Yprk a married woman might formerly make a valid will under the written authority of her husband; but the right was after- wards taken away. Then, under a law of 1849, a married woman might' devise real and personal property, and by a later enactment the right to make a will was expressly given her in liberal terms. Moehring v. Thayer, i Barb. Ch. 264 ; Wadhaus v. Am. Home Missionary Society, 12 N. Y. 415; White v. Wager, 25 N. Y. 328; Albrecht v. Pell, 18 N. Y. Supr. 127. 1 Clarke's Appeal; 79 Penn. St. 376 j Schoul. Hus. & Wife, § 442; Huston v. Cone, 24 Ohio St. 11. For the statute rights of a husband under a devise by his wife without his consent, see 152 Mass. 414. 2 2 Bl. Com. 497. ' 4 Burge Col. & For. Laws, 326. * 4 Burge Col. & For. Laws, 328. 59 § 59 LAW OF WILLS. [PART II. of married women seems in truth peculiar to that country. For Voet and other publicists have declared that, although the wife should not be allowed to make a contract without the consent of her husband, yet she ought to be permitted to make a will, because it does not take effect until the marital authority has ceased.^ And the obvious tendency at present in England and the United States is to emancipate the wife from her ancient disabilities in that respect ; notwithstanding which the restriction seems a wise one, that neither spouse shall utterly deprive the other of the usual and legal distribu- tive rights at a capricious discretion.^ § 59. Re-Ezecution of "Will after Coverture ; Ezpectant Prop- erty, etc. — In England, before the present English statute, I Vict. c. 26, went into operation, a widow might, without any formal republication, recognize her will made during cover- ture or one made by her before her marriage, and so give it full validity.^ But this rule is changed from January, 1838, by force of that statute ; and republication must now be in the particular mode pointed out by the statute, tantamount to ^ Voet, Sande & Rodenb. cited 4 Burge this day are found to be quite similar ; Col. & For. Laws, 326. We may under- and statutes enacted since 1870 conform stand, therefore, why the Louisiana Code to the general American rule. On our permits the wife to make her testament Southwestern frontier, indeed, as a re- without the authority of her husband, suit of the mingled influence which first La. Code, art. 132. And in other South- moulded these States, the civil and com- western States, under the community mon law systems of jurisprudence are system, the wife's right of testamentary found to-day inseparably blended, disposition is likewise to be found. In 2 xhe argument which applies in favor Mississippi this right has been long of a widow's election to decline the pro- favored ; nor is it abridged by con- visions of her husband's will should vice struction of the married women's acts, versa be available to a husband. Either Lee V. Bennett, 31 Miss. 119. In Call- husband or wife as towards one another fornia the statute gives the wife power may prove too generous or else too nig- to dispose of all her separate estate gardly, if left to an unfettered discretion, without the concurrence of her hus- such are the perils of a life companion- band, but her will must be attested, wit- ship"; and this the new statutes will nessed, and proven after the ordinary probably in time demonstrate. See manner of wills. It cannot be said in Dickinson v. Dickinson, 61 Penn. St. any of these States that the doctrine of 401. the wife's testamentary capacity was bor- " i Wms. Exrs. 55 ; Miller v. Brown, rowed entirely from the English com- 2 Hagg. 209; 3 Add. 264 ; Long v. mon law, or underwent corresponding Aldred, 3 Add. 48. modifications, though the final results at 60 CHAP. III.] INCAPACITY OF MARRIED WOMEN. § 60 re-execution, and not by parol.^ Hence a mere signature by herself and other parties as witnesses, the testatrix saying nothing about the reason of her signing, and making no re- quest for the others to sign as witnesses, is held not to amount to a republication, and the will fails in consequence to operate.^ Nor can the husband's parol assent during cov- erture be said to give the will efficiency afterwards without a formal republication, if the husband dies before the wife.'* As to expectant property not vesting in the wife until after her husband's death, she ought to re-execute her will upon his decease, or else make a new one.* So in other respects as affecting property -afterwards acquired by her under his will. For as to such property she was intestable during coverture. § 60. Devise or Bequest to the Husband ; his Marital Influ- ence. — There can be little doubt of the reluctance with which courts of equity sustain devises from the wife to her husband. For the long-established policy of our law, though favoring, to be sure, the husband's inheritance of his wife's personalty, casts the descent of her lands upon those of her own blood. There are decisions to the effect that the husband cannot be- come the gainer, or have his marital rights extended, by his wife's testamentary disposition of her lands. But they turn rather upon statutory construction than principle.^ In New York the Married Women's Act of 1 849 gave the wife power " to convey and devise real and personal property " " as if she were unmarried" ; and it was held that, notwithstanding these words, a deed executed by a wife, in contemplation of death, to her husband, in good faith and voluntarily, was wholly 1 WoUaston, ^- Bundy v. McKnight, 48 Ind. 502; curiam. Dufifield v. Robeson, 2 Harring. 379; " If a man," says Swinburne, " be of Legg v. Myer, 5 Redf. 628, 635; Wat- a mean understanding (neither of the son v. Donnelly, 28 Barb. 653. Even wise sort or the foolish) but indifferent, a will somewhat unfair was upon this as it were betwixt a wise man and the argument admitted to probate in Legg fool, yea, though he rather incline to v. Myer, supra. the foolish sort, so that, for his dull In Delafield v. Parish, 25 N. Y. 97, 73 § 70 LAW OF WILLS. [part II. lity, vagueness of thought, may all consist with adequate tes- tamentary capacity, under favorable circumstances. And a comprehensive grasp of all the requisites of testamentary the majority of the court laid down the following legal propositions : " In law, the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as those terms are used in their fixed legal meaning. Such being the rule, the question in every case is, had the testator, as compos mentis, capacity to make a will; not, had he capacity to make the will producedl If compos mentis, he can make any will, however complicated; if non compos mentis, he can make no will — not the simplest." These rules (which appear to be drawn somewhat from the literal ex- pression of a New York statute) differ materially from those announced by Davies, J., in the same case, and may appear open to grave exception. In the first place, they attempt a bolder line between the sane and the non-insane than medical experience justifies. Next, they leave out of view the varied opera- tion of insane delusion, which, as we well know at this day, might enter into one testamentary disposition but not an- other, so as to invalidate in the former instance only. And again, they ignore the possibility of undue influence from without, to which the wills of all feeble and weak-minded persons of wealth are so peculiarly subjected, that, unless fair and natural in their provisions, they ought always to be viewed with sus- picion and only admitted upon fair proof that under all the circumstances the identical instrument as presented was the testator's own will, and not what others, with sinister ends in view, made for him. Far from true appears the ab- stract proposition that a testator who can make one will can make any will; nor to this writer does it seem that the community would suffer, if, after all, the court of probate, in every case of doubt- ful capacity, of doubtful intellect and volition in the testator, permitted the justice or injustice of the particular disposition to turn the scale. To charge a jury to find whether a testator is " crazy " or not is not in good form, and the word is quite inappropri- ate in such an issue. Calvin, Surrogate, in Townsend v. Bogart, 5 Redf. 93, 105, suggests that the use of the term compos mentis, which is sometimes made the standard of testamentary capacity as meaning " sound mind," will often mislead. And he commends the careful expres- sion of the court in Bund/ v. McKnight, 48 Ind. 502. Here it is observed that the law does not undertake to test a person's intelligence, and define the exact quality of mind and memory which a testator must possess to author- ize him to make a will; yet it does require him to possess a mind to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, their deserts in reference to their conduct and treatment towards him, their capacity and necessities ; that he shall have suflicient active memory to retain all those facts in his mind, long enough to have his will prepared and executed; and if this amount of mental capacity is somewhat obscure or clouded, still the will may be sustained. " There is no country in the world in which the law permits a larger exercise of volition in the disposal of property after death than in England " [and it might be added in the United States, where the English law is followed] . " But it re- quires as a condition, that this volition should be that of a mind of natural capacity, not unduly impaired by old age, enfeebled by illness or tainted by morbid influence. Such a mind the law calls ' a sound and disposing mind.' " ;4 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 'J2 knowledge in one review appears unnecessary provided the enfeebled testator understands in detail all that he is about and chooses rationally between one disposition and another.^ \'J\. The Same Subject: the Testator's Mind should act without Prompting. — In the important case of Delafield v. Parish, Davies, J., of the New York Court of Appeals, after announcing the fairer rule of testamentary capacity above set forth, spoke of the testator's mind as acting without ex- ternal pressure wherever it acted properly. "The testator must," he says, "have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in regard to them" ;^ and we may add, long enough to have been able to dictate or write out his wishes, and to execute with all due formalities. § 72. The Test of Testamentary Capacity should be referred to the Particular Instrument and Transaction. — When we come to examine in detail the various classes of cases where sanity and the capacity .to make a will have been in controversy, the general doctrine, as above stated, will more clearly appear Sir J. P. Wilde in Smith ». Tebbett, L. should understand the precise legal R. I P. & D. 398, 4CX>. effect of the provisions he makes, for 1 Wilson V. Mitchell, 10 1 Penn. St. on such points the most sane of testa- 49S> 502; approved in no Penn. St. tors may fail. 21 Mich. 141, 142. Nor 339 > Jackson v. Hardin, 83 Mo. 1 75 ; that one shows no failure of memory and Delaney v. Salina, 34 Kan. 532. It is weakening powers, though instances on not necessary that the testator should this point might be pertinent as proof. know the number and condition of his Richmond's Appeal, 59 Conn. 226; 45 relatives and their claims upon his N. J. Eq. 890. bounty, nor that he should understand It is misleading and too sweeping to the reason for giving or withholding his rule that if a testator's mind was " un- bounty from any such relatives. Spratt sound " he could not make a valid V. Spratt, 76 Mich. 384. Nor that he will. Durham v. Smith, 120 Ind. 463; should remember the names of absent Reichenbach ». Ruddach, 127 Penn. relatives. Kramer v. Weinert, 81 Ala. St. 564. 414. Nor that he should call to mind ^ Uelafield v. Parish, 25 N. Y. 9, every item of his property and the value affirming Parish v. Parish, 42 Barb. 274. of each. Reichenbach v. Ruddach, 127 And see 76 Mich. 384. Penn. St. 564. Nor, of course, that he 75 § 72 LAW OF WILLS. [part II. with its qualifications. We shall find that the criterion in such cases is best taken as sui generis and not referred to the standard of, general contract capacity ; though unquestionably the habit and capacity of any testator to actively transact his ordinary business and make his own contracts furnish strong evidence of the capacity at issue.^ The vital question in any such case should be, whether upon all the evidence the par- ticular instrument propounded for probate was or was not under all the circumstances the real testamentary disposition (and the last one, of course) of a mind neither deranged in producing it, nor operating under stress of error, fraud, or undue influence.^ And to decide this question properly requires a careful view of the particular case in all its bear- ings without too rigid an adherence to any general maxims of capacity. The time and place to be regarded in determin- * The capacity of making and taking care of one's property has been held evidence of his testamentary capacity in a particular case, but not conclusive evidence. Gass v. Gass, 3 Humph. 278. " But it is proper to remember," ob- serves Judge Redfield, " that the capac- ity to make ^nd take care of property is more satisfactory evidence of testa- mentary capacity, than the want of that power would be of due want of testa- mentary capacity." I Redf. Wills, 127. The circumstance that the testatrix had badly managed a large estate which she inherited so that much of it was wasted is no proof of testamentary incapacity. Hall V. Hall, 17 Pick. 373. One may have capacity to make a will, though unable to manage his estate. Brinkman V. Rueggesick, 71 Mo. 553. See foot- notes in previous sections, §§ 68, 70. 2 In I Redf. Wills, 131, 132, after commending Swinburne's, observations upon this general subject of capacity, the distinguished author shows his own preference for bringing questions of this character to the test of a simple inquiry. The issue he states in these words: " Whether the document claimed to be the will of the testator, was really the product of his own free will and action, or that of others; in short, whether they regarded it as the will of the tes- tator or the act of some other person or persons?" It is submitted, however, that such a statement leaves out of view the hypothesis that a testator's will may be his own uninfluenced act and not the act of others in any sense, and yet be the offspring of an insane mind. Error, fraud, or undue influence, should be shown by those alleging it. The common rules of testamentary capacity are criticised in Irish v. Newell, 62 111. 196. The best form (it is here said) in which the question of testa- mentary capacity can be stated to the jury is, whether the testator's mind and memory were sufficiently sound to en- able him to know and understand the business in which he was engaged at the time he executed the will; and in determining the question the compe- tency of the mind should be judged of by the nature of the act to be done, from a consideration of all the circum- stances of the case. See more fully, c. 9, post. 76 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 74 ing the validity of the will should be essentially the time and place of its execution.^ § 73. Testamentary Capacity Consistent with Execution of a Will in Extremis. — The will of a dying person, made very close to the point of death, requires a careful scrutiny of the surrounding circumstances which bear upon capacity and free volition. It is certainly a very dangerous period for taking into mind for the first time the arrangement of a complex disposition of property, or even for executing intelli- gently. But, after all, the question of sanity or insanity, freedom of will or coercion from without, is, as in other cases, the material one to be decided upon all the facts. Where the act of execution in extremis relates not to a will just framed in the mind, but to one which has reduced to writing the results of the testator's previous deliberation and direc- tion, at an earlier stage of illness, it deserves peculiar indul- gence, when drafted correctly and then executed in due form. Thus, in a Massachusetts case a testatrix gave directions, at 1 1 o'clock in the morning, how her will should be drawn up. She executed the will at 6 in the evening and died two hours after. The jury were instructed that if, at the time of dic- tating the will, she had sufficient discretion for that purpose, and at the time of executing it was able to recollect the par- ticulars she had so dictated, they might find their verdict in favor of the will ; and they found accordingly.^ One might be too weak physically to do more than make a mark to the instrument, and yet be mentally competent.* § 74. Testamentary Capacity Consistent with Insane Delu- sions, etc. — The better opinion in English and American courts, as we shall show more fully hereafter, holds that mental unsoundness, exhibited in insane delusions, or what has been loosely styled " partial insanity," does not of itself 1 See Kerr v. Liinsford, 31 W. Va. N. Y. 153; Lewis's Will, 51 Wis. loi; 659. 130III. 467; i6 0reg. 127. 2 Hathorn v. King, 8 Mass. 371 . See " § 84, post. also Brown v. Riggin, 94 111. 560; 39 77 § ^6 LAW OF WILLS. [PART IL destroy testamentary capacity necessarily, unless the will in question be the direct offspring of the delusion. Where, in other words, the delusion is altogether collateral to the dis- position, the will itself is not invalidated ; but where the delusion manifestly operated upon the disposition, then the will must be declared void.^ In general our latest decisions show a positive reluctance to set aside any will on mere proof that the testator suffered from some dubious mental disorder or weakness, provided it fairly appear that the provisions of the will were not thereby affected.^ § 75* Ixodes of Testing Capacity, as bet^veen Monomania and Habitual Insanity. — Where a person is laboring under such insane delusion, or what modern psychology terms mono- mania,^ his sanity is to be tested by directing his attention to the subject-matter of such delusion ; but where a person is afflicted with habitual insanity unaccompanied by delusions, his sanity is to be tested by his answers to questions, his apparent recollection of past transactions, and his reasoning justly with regard to them and with regard to the conduct of individuals.* § "jd. Effect of Insanity where a Will and Codicils are ex- ecuted. — We shall see that a codicil republishes a will, if clearly referring to it, and makes the will speak from the date of the codicil, and that the same principal applies where two or more codicils are added ; the practical effect being to in- corporate the instruments as one testamentary disposition.^ Where, therefore, a will with several codicils is contested on > Dew V. Qark, 3 Add. 79; Banks v. ing v. Waring, 6 Moore P. C. 349. See Goodfellow, L. R. 5 Q. B. 549; James c. %,post, as to monomania and insane V. Langdon, 7 B. Mon. 193; Boyd v. delusions. Eby, 8 Watts, 70 ; Rice v. Ricd, 50 2 Rice v. Rice, 50 Mich. 44S. Mich. 448; Crum z/. Thornley, 47 111. '"Monomania" supersedes " partial 192; Dunham's Appeal, 27 Conn. 192; insanity " as the modern term appropri- Seaman's Friend Society v. Hopper, 33 ate to the disorder. But it is question- N. Y. 619; Pidcock v. Potter, 68 Penn. able whether one term is less inexact, in St. 342; Cotton V. Ulmer, 45 Ala. 378; a logical sense, than the other. Robinson v. Adams, 62 Me. 369. There * Sir C. Cresswell in Nichols v. Binns, appears, however, some conflict in the I Sw. & Tr. 239. English cases on this point. See Smith ' See Part IV. post, as to Codicils. V. Tebbitt, L. R. i P. & D. 398; War- 78 CHAP. IV.J INCAPACITY OF INSANE PERSONS. § TJ the ground of mental incapacity in the maker, it is not nec- essary to estabhsh capacity at the several dates when the instruments were executed ; for capacity at any one date renders valid the act then done and all the preceding acts republished by it.^ § "JJ. Unjust and Foolish Wills viewed -with Suspicion. — Notwithstanding the broad principle which maintains testa- mentary capacity, it is generally found in practice that a will which is partial and unjust in its provisions, absurd, or clearly devoid of natural duty or affection, finds no ready support in the courts. Such wills are not, indeed, absolutely void ; but their execution is regarded with jealousy and suspicion. The spiritual tribunals in early times, following the Roman law of inofficious testaments,^ made little compunction of setting senseless wills aside, or as Swinburne very strongly expressed it, "if there be but one word sounding to folly." ^ Foolish words, foolish phrases, cannot in these days, however, be said to invalidate any will at the Anglo-Saxon law ; and it is doubtful whether they ever did more than furnish as against such an instrument a presumption which more positive evi- dence of intention ought by the present rule to fortify.* We have already seen that discrimination by will against the surviving spouse or child is to some extent guarded against, and not wholly by construction;^ but the EngHsh law does not follow the Roman in avoiding such wills peremptorily as the offspring of incapacity, nor even so as to prevent one absolutely from disinheriting his own oifspring.^ On the con- trary, if a testator be legally competent to make his will, and acts freely, his will cannot be impeached because harsh, unreasonable, imprudent, or unaccountable in its provisions ; "' 1 Brown v. Riggin, 94 111. 560. And ' Swinb. pt. 2, § 3, pi. 16. And see see Mairs v. Freeman, 3 Redf. (N. Y.) Waring v. Waring, 6 Moore P. C. 349. ,Si. « I Redf. Wills, 121; I Hagg. Ecc. 2 By the Roman law testaments de- 214; Munday ». Taylor, 7 Bush, 491. ficient in natural duty might be set aside ' Supra, § 20. on that ground ; as where a child of the ° 2 Bl. Com. 502, 503. testator was left without provision and ' Boughton v. Knight, L. R. 3 P. & no sufficient reason was given for the D. 64; Nicholas v. Kershner, 20 W. omission. 2 Bl. Oim. 503; l Wms. Va. 251; Hubbard w. Hubbard, 7 Or. Exrs. 38. 42; Higgins v. Carlton, 28 Md. 118; 79 § 78 LAW OF WILLS. [PART II. nor even as being devoid of natural affection and moral duty.^ And certainly the more distant or unfamiliar one's heirs and next of kin, the less should he be expected to provide for them by his testament.^ But in order to sustain any unjust, unnatural, or absurd will, which may be contested, fair proof at least should be afforded that the testator was of sufficient capacity at the date of execution to comprehend its import ; and furthermore the trier of the case should believe that neither essential mis- take on his part nor the fraud nor undue influence of others about him produced so unhappy a disposition.^ And where a person is sometimes sane and sometimes insane, and the will appears crazy, unjust, unnatural, or undutiful, it may well be presumed that he executed it while insane or under the insane malady, unless indeed they who propound it can prove to the contrary.* In fine a harsh and unnatural disposition by the will in question, is a circumstance which tends to discredit the maker's testamentary capacity.^ § 78. The Just 'Will of an Insane Person considered. — On the other hand one who is wholly deranged in mind so as to be in a genuine sense insane cannot while in that condition, nor while under undue constraint, make a valid will, however just, natural, and reasonable might appear its provisions.® Yet the circumstance that the testator, unaided by others, has made a judicious will containing nothing " sounding in folly" nor failing in natural affection and duty, bears cer- tainly very strongly in favor of sustaining it ; and we find II Phila. 136; Munday v. Taylor, 7 Montefiore v. Montefiore, 2 Add. 361; Bush, 491; Davis v. Calvert, I Gill & J. I Redf. Wills, 121, 122; i Wms. Exrs. 269. 38, 361 ; Esterbrook v. Gardner, 2 1 I Wms. Exrs. 38, 361 ; c. 8, post; Demarest, 543. Coffman -o. Hendrick, 32 W. Va. 119; * Swinb. pt. 2, § 3, pi. 15; i Hagg. Schneider v. Manning, 121 111. 376; 214; I Wms. Exrs. 37. And see 72 Iowa, 515; 118 111. 199. Boughton v. Knight, L. R. 3 P. & D. 2 Motives for disinheriting kindred, 64; u. 8 on monomania, post; Van and collateral kindred more especially, Alst v. Hunter, 5 John. Ch. 148, 158; may readily appear in proof. See Smith Smith v. Smith, 75 Ga. 477. V. James, 72 Iowa, 515. 6 ggg Lamb v. Lamb, 105 Ind. 456. » Baker v. Batt, 2 Moore P. C. 317; 6 Pottsz/. House, 6 Geo. 324; Harper Brogden v. Brown, 2 Add. 449; Vree- v. Harper, i N. Y. Supr. 351. land V. McClelland, I Bradf. 394; 80 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 8l courts constantly disposed to uphold such a will, even in the case of a person habitually insane or tending to imbecility or subject to insane delusions, where there is no proof to repel the theory that it was made during some lucid interval or before the mental powers had reached the final state of decay, or free from the delusion.^ § 79. Manner of making and executing the Will. — As bear- ing upon issues of testamentary capacity, the manner of making and executing the will in question is an important consideration, as well as the character of the will itself. Thus, if the will be written out clearly by the testator him- self which manifests intelligence on its face, this is a strong though not conclusive circumstance ; and so too, where the testator took decidedly the initiative in having the will pre- pared and executed, instead of yielding or confiding the matter, as it would appear, to those about him.^ § 80. Testamentary Capacity as contrasted in Complex and Simple Estates. — It is sometimes stated that the same degree of mental capacity is not required in making a will of a small and simple property as of a large, diversified, and complicated estate.^ But such a maxim ought duly to regard the particular testator, whether a person of business hahjjfs and accustomed to large pecuniary dealings, while in normal condition, or the reverse ;* the individual being, so to speak, compared with himself. § 81. Will of one under Ouardianship not necessarily Void. — The test of testamentary incapacity being in a proper sense 1 Cartwright v. Cartwright, l Phillim. I Phillim. 90, a strong instance in point, go; Kingsbury v. Whitaker, 32 La. where a will was established as made Ann. 1055 ; Wilson v. Mitchell, loi during a lucid interval. Penn. St. 495; Kempsey v. McGinniss, ' Sheldon v. Dow, i Demarest, 503, 21 Mich. 123; Peck v. Carey, 27 N. Y. 511. And see Campbell v. Campbell, 9; Gombault v. Public Administrator, 130 111. 467. See supra, § 68. 4 Bradf. 226; Goble v. Grant, 2 Green * Cf. the dictum of a majority of the Oh. 629; I Wms. Exrs. 361, Perkins's court as to compos and non compos in Am. note. A strong recent instance in Delafield v. Parish, 25 N. Y. 97, corn- point is Silverthorn's Will, 68 Wis. 372. mented upon supra, § 70. * See e.g. Cartwright v. Cartwright, , 81 § 8l LAW OF WILLS. [PART IL S7ii generis, it does not follow that the will of one under guardianship is necessarily void. It would be out of place to set forth here the general scheme of practice which prevails in England and the United States for committing those who, from mental unsoundness or habitual drunkenness, or as spendthrifts, are adjudged incapable of managing their own estates, to some guardian or committee.^ Chancery takes the essential jurisdiction of such cases in England, while in this country it falls rather to the county probate tribunals, under statutes which vary in the details of jurisdiction and process. Often does the court put a person under a com- mission of lunacy or guardianship where he cannot be regarded as absolutely insane, or if insane, where he is only temporarily so ; the law having this main object in view, to deprive the party of managing his own estate because he is incompetent to have the care of it and would be likely to squander it. The point here at issue is therefore the general rather than the partial or particular incapacity of the person for dealing with his property ; and one might even, while under such a guardianship, make a valid and intelligent will which deserved to be upheld, under the comprehensive rule of testamentary capacity already set forth.^ Not only would it deserve to be upheld because at the date of execution the ward might have been entitled to his discharge from guard- ianship, but because, while an incompetent manager, he might not, on the whole, have been an incompetent disposer by testament of his property. For we know that one may have intelligently arranged where all shall go at his death and yet be himself sensible, as well as his relatives, that he grows more and more unfit to take care of his property ; we know that one may have a lucid interval or even be fully sane once more and yet fail to demand that the management be restored to him. Guardianship under our local codes, moreover, is granted upon allegations of intemperate or spendthrift habits, rather than for mental unsoundness. 1 See I Redf. Wills, 123; Sherwood « Supra, § 68. V. Sanderson, 12 Ves. 445; Schoul. Dom. Rel. §§ 293, 304, 305. 82 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 82 . But in general where a person is placed under a guardian- ship for positive insanity, the investigation upon which the appointment was based is such as to establish a prima facie case that he was, at that date at least, non compos and incapa- ble of making a valid will. And the fact of such an appoint- ment, as well as of the testator's continuance under the guardianship, is doubtless a very important one whenever one's will is contested. But such evidence of testamentary incapacity is prima facie only and open to explanation by other proof.^ Such a person may make a valid will, if he be in fact of sound mind at the time of its execution.^ Nor is the character of the appointment thus made invariably such as adjudges one an insane person at all ; and if the record falls short of establishing that sanity was put at issue in the proceedings for guardianship, not even a prima facie case of testamentary incapacity is thus made out.^ § 82. The Same Subject : Adjudication of Idiocy. — An ad- judication of idiocy imports so base a mental condition that incapacity to make a will ought from this circumstance to be more readily inferred than where one is placed under the usual guardianship as a lunatic or generally insane ; though it still holds true that such collateral adjudication, especially if made long after the will was executed, is not conclusive against the probate of the instrument after the testator's death.* 1 I Greenl. Ev. § 690; l Wms. Exrs. ^ This holds true of a probate order 38 & Perkins's note; 10 Moore P. C. adjudging a man "incompetent to have 244; Hamilton z/. Hamilton, 10 R. I. the care of his property. " Rice &. Rice, 538; Breed v. Pratt, 18 Pick. 115; 50 Mich. 448. But such an order may- Lucas V. Parsons, 27 Geo. 593; Robin- be put in evidence as bearing on the son V. Robinson, 39 Vt. 267. testator's condition. lb. 2 Cooke V. Cholmondely, 2 Mac. & G. If the inquisition for lunacy was in 22; Bannatyne v. Bannatyne, 16 Jur. fact if^/a^jfe, the value of the record is 864; I Redf. Wills, 122, 133, 134; Tit- not great in an issue of will or no will, low V. Titlow, 54 Penn. St. 216; Breed Bannatyne v. Bannatyne, 14 E. L. & !>. Pratt, 18 Pick. 115: Stone ». Damon, Eq. 581. And see as to guardianship 12 Mass. 488; Rice v. Rice, 50 Mich, for drunken or spendthrift habits, Lewis 448; 57 Cal. 529; Slinger's Will, 72 z/. Jones, 50 Barb. 645 ; Leckey i-. Cun- Wis. 22 ; Pendleton's Will, I Con. Sur. ningham, 56 Penn. St. 370. (N. Y.) 480. * Townsend v. Bogart, 5 Redf. 93. 83 § 84 LAW OF WILLS. [PART II. § 83. Sound and Disposing Mind and Memory. — The word "memory" is much used in connection with this subject of testamentary capacity, coupled with "mind." A disposing memory is understood to be one which is capable of recalling to the testator's own view all his estate and all the persons who naturally and properly would partake under his disposi- tion of it.i Lord Coke mentions the necessity of a "dispos- ing memory" or a "safe and perfect memory" j^ and the time-honored phrase, which asserts the testator's confidence in his own mental capacity, is, as wills are commonly drawn " being of sound and disposing mind and memory " ; with perhaps the prefix "being in sound [or sufJficient] bodily health." ^ The issue is sometimes stated as one of "sound mind, memory, and understanding." In a lyoad sense, however, the phrase "sound mind" covers the whole subject. "Em- phasis," observes an English judge in 1873, "is laid upon two particular functions of the mind which must be sound in order to create a capacity for the making a will ; there must be a memory to recall the several persons who may be fitting objects of the testator's bounty, and an understanding to com- prehend their relationship to himself and their claim upon him. But for convenience the phrase ' sound mind ' may be adopted." * § 84. Testamentary Capacity not Dependent upon Sound Health. — But though one's will may allege that the testator is of sound health, neither the statement nor the condition is essential to the validity of the instrument. In other words, 1 Harwood v. Baker, 3 Moore P. C. » See Forms of Wills in Appendix. 282; Marsh v. Tyrrell, 2 Hagg. 122; * Boughton v. Knight, L. R. 3 P. & Den V. Johnson, 2 South. 454; i Redf. D. 64, 66, per Sir J. Hannen. And see Wills, 123. "It is not necessary that Smith v. Tebbitt, L. R. i P. & D. 398, he collect all these in one review. If 400. he understands in detail all that he is " A disposing mind and memory may about, and chooses with understanding be said to be one which is capable of and reason between one disposition and presenting to the testator all his prop- another, it is sufficient for the making erty, and all the persons who come rea- of a will." Wilson v. Mitchell, loi sonably within the range of his bounty." Penn. St. 495, 502. Benoist v. Murrin, 58 Mo. 307, 322. 2 6 Co. Rep. 23. See also 4 Wash. C. C. 267. 84 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 8$ testamentary capacity is not conditional upon the possession of sound health or of great vigor or activity, whether intel- lectual or physical. " Incapacity," it is said, " cannot be inferred from a feeble condition of mind or body. Such a rule would be dangerous in the extreme." If, therefore, the will in question be the free act of the testator, within the scope of the rule for testamentary capacity already stated, the disposition of one in impaired health should stand.^ §85. Classification of Inseuiity ; the Various Kinds. — Insane persons are thus classified by Lord Coke, after the inexact mode of mental analysis which obtained in his times : (i) An idiot or fool natural ; (2) He who was of good and perfect memory, and by the visitation of God hath lost the same ; (3) The lunatic, who enjoys lucid intervals, who sometimes is of good and perfect memory, and some other times non compos mentis. (4.) He that is so by his own act, as a drunkard. The insane person was in general styled non compos mentis?' Blackstone a century ago used less pains at precise expres- sion. " Madmen," he says, " or otherwise noti compotes, idiots or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunk- enness — all these are incapable, by reason of mental disability, to make any will so long as such disability lasts. To this class, also, may be referred such persons as are bom deaf, blind, and dumb ; who, as they have always wanted the com- mon inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void."^ Idiots and lunatics were the two classes of persons to whom the law formerly extended its protection on the score of mental unsoundness, as the classes most plainly told apart ; for the former never had reason, while the latter had lost the 1 See Horn v. Pulman, 72 N. Y. 276; Eq. 565. And so may one who is dying CornweU v. Ricker, 2 Demarest, 354; of a cancer, and emaciated, weak, and Wilson V. Mitchell, loi Penn. St. 495. irritable. Stoutenburgh v. Hopkins, 43 One who is in the last stages of con- N. J. Eq. 577. And see Kerr v. Luns- sumption and under the delusion that he ford, 31 W. Va. 659. will recover, and frequently delirious * 4 Co. Rep. 123. besides, may yet make a valid vrill. 6 ' 2 Bl. Com. 497. Dem. 123 ; Ayres v. Ay res, 43 N. J. 85 § 86 LAW OF WILLS. [PART II. reason they once possessed. But it was gradually found that many more required such protection, whose symptoms of dis- order, though mildly manifested without the violence or nota- ble derangement or intermittent brightness which attended lunacy, had yet equal claim to be regarded as implying a loss, not the natural denial, of reason. A decline of intellectual power, of interest in their usual pursuits, of the capacity for comprehending their relations to persons and things, marked this phase of mental unsoundness. Instead, therefore, of giv- ing the word " lunacy" a scope large enough to include them, the modern disposition is to apply specific terms to describe various disorders whose range of reason is wider than that of the utterly imbecile and brute-born idiot. Monomaniacs or those having insane delusions, or, as it is somewhat inaccu- rately said, who are only partially insane, are examples of this milder type of insanity ; those, again, who are affected with a delirium like that produced by drunkenness, sufficient to drown the reason for the time being ; persons grown childish from decay of the mental powers by reason of old age, whose affliction is styled senile dementia ; and so on. These are the kinds of insanity with which our courts have chiefly to deal in practice when considering the question of testamentary capacity in any individual case. But, after all, the manifesta- tions of insanity are subject to so great variation that we may not easily define them, nor the word " insanity " itself. § 86. The Same Subject : Insanity defined. — Insanity, the word humanely used at the present day to designate all men- tal impairments inconsistent with soundness of mind, is more readily concluded from the symptoms in a given case than defined on abstract principle. High legal and medical au- thority defines it as the prolonged departure, without adequate cause, from the states of feeling and modes of thinking usual to the individual in health.^ Insanity may involve bodily diseases, but the disease primary and predominant, where it exists, or the congenital defect, has its seat in the brain. 1 Bouv. Diet. " Insanity " ; 3 Curt. Ecc. 671^ 86 CHAP. IV.] INCAPACITY OF INSANE PERSONS. § 88 § 87. Psychology of Mental Unsoundness, and Unity of the Disorder. — The foregoing definition of insanity is essentially one of medical jurisprudence, and medical science at the present stage of its progress confesses itself unable to frame a more exact one. Psychologists have not classified mental unsoundness with success ; for the same names have been used to denote quite distinct phenomena, according to the standpoint of observation ; and, moreover, the insane de- lusion, the symptom, has been too long treated by them as a substantive disease, indicating that the mind may be unsound in some factor but sound in, all the others. " It is the latter tendency, in fact," observes a sound writer on this subject, "that has, more than all other causes, tended to lower the authority of psychology with the courts." ^ And he proceeds to state that the weight of psychological opinion is now to discard this process of disintegration, and to treat the mind as a unit, which, whenever diseased, however distinc- tively the disease may manifest itself, is diseased as a whole.^ The fundamental functions or properties of the mind are stated as these three : feeling, will or volition, and thought or intellect ; this last including the powers known as percep- tibn, memory, conception, abstraction, reason, judgment, and irriagination.^ These three functions are inter-dependent, and affected together by mental disease ; so that instead of considering numerous insanities to which this division or sub- division might give rise, we should consider that insanity, while flitting, perhaps, from function to function, or spreading over the mind, is but one disease capable of manifesting itself in various ways.* § 88. Courts apply Practical Tests without attempting Ezact Classification. — The various grades and types of insanity, however interesting they may be in a philosophical point of 1 I Wharton & StillS Med. Jur. § 305. insanity " as something which may co- 2 lb. exist with mental sanity, so as to relieve 8 Bain Mental and Moral Science; one of criminal accountability, and yet Sir Wm. Hamilton Metaphysics. render him capable of sound conduct * I Wharton & Stille Med. Jur. § 308. in affairs, is untenable. lb. § 531 et It follows that the doctrine of "moral seq. 87 § 89 LAW OF WILLS. [PART II. view, receive, on the whole, no very close practical consider- ation from our judges. Courts attempt no exact classifica- tion of the subject. In criminal cases they are governed by their tests of responsibility ; and in civil cases by the amount of capacity shown in connection with the transaction in question. The whole proof in a given case (aided, perhaps, but not guided, by the opinion of voluntary medical experts) is laid usually before a fury, to determine, by weighing it after a common-sense fashion, whether (supposing the crime to have been committed or the transaction performed by him) the person was at the time and in the act responsible or irresponsible, mentally capable or mentally incapable. § 89. Testamentary Capacity as applied in Tests of Mental Unsoundness or Coercion. — Some have dwelt upon the expres- sion " testamentary capacity " as though the test of mental soundness and unsoundness were an abstract one. The inca- pacity of infants, married women, aliens, and the like may, where the law recognizes its existence, be pronounced ab- stract or of general and absolute force ; but whenever an issue of insanity or undue influence is presented, the ques- tion appears concrete rather, devisavit vel non ; was that will the free and intelligent product of the testator's mind or not. One might, in a certain sense, be thought insane, and yet the will should stand as a disposition untainted by his insanity ; he might, on the other hand, be sane, and yet the will should fail, because he did not make it as a free agent. "Testa- mentary capacity " is not, perhaps, a happy term to use here, but out of deference to the courts we may still employ it ; with this qualification, that, excepting possibly in brutish types where reason is a blank, no ideal standard of capacity is offered for gauging the brain, but court or jury must determine whether a weak or diseased mind made in the given instance a normal disposition by testament or not. Even here, nevertheless, a general comparison of the various symptoms and forms of mental derangement which are exhibited in our testamentary causes will greatly assist the investigation and guide to a just conclusion. 88 CHAP. v.] INCAPACITY OF IDIOTS, ETC. § 90 CHAPTER V. INCAPACITY OF IDIOTS, IMBECILES, AND PERSONS DEAF, DUMB, AND BLIND. § 90. Idiots are Incapable ; What is Idiocy. — Idiocy, which is insanity in its lowest type, since it presupposes a want of understanding from nativity, and allies its subject to the brute creation, is utterly inconsistent with the power to dispose by will, or indeed with mental capacity of any kind, or even in extreme cases with accountability for crime. We may not well define this condition ; but an idiot is recognized by all intelligent persons who deal with him, and is a fit subject for the asylum, unless his own family will provide tenderly for hij welfare and keep him secluded from society. Medical classi- fication regards idiots of the lowest class as mere organisms, masses of flesh and bone in human shape, in which the brain and nervous system cannot control the muscles, having neither the power of locomotion nor speech, and whose mental faculties are buried in darkness ; fools, a higher class of idiots, who can partially command the voluntary muscles, and conse- quently have a considerable power of locomotion and animal action, and imperfect speech, and whose reason glimmers faintly ; and simpletons, or the highest class of idiots, in whom the harmony between the nervous and muscular sys- tems is so nearly perfect that the power of locomotion and animal action are normal, and who have reason enough for their simple individual guidance, but not for their social rela- tions.^ Idiocy results either from congenital defect or from some obstacle to the normal development of the faculties in child- hood, and is manifested generally by malformation of the head and brain, and a repulsive expression. Unfortunates of this 1 Report of Dr. Howe to the Massachusetts legislature, cited in i Redf. Wills, 61. 89 § QI LAW OF WILLS. [PART II. class have been taught decent and proper habits, and may even be trained to some degree of efficiency in rude industrial pursuits ; but education has never fitted them for unpainful companionship with the intelligent part of mankind, for whose society animals like the dog or horse, from their lower but positive plane of intelligence, are naturally so well fitted, while here the hidden propensities of the human but unnatural brute suggest a constant source of danger. § 91. The Same Subject. — Some of our earlier text writers, whose observations of mental phenomena could not have been profound, were at pains to discern some legal test of idiocy. Fitzherbert, perhaps the first of them, laid it down that if a person could not count twenty pence, or tell who were his father and mother, or how old he was, he was to be set down as an idiot ; but that if he knew and understood his letters, and could read by another man's teaching, he was not.^ But, as Lord Hale has correctly observed, all this may serve for proof, but it is too narrow for conclusion ; and idiocy is in any case a question of fact to be settled by all the proof, and some- times by inspection.^ Idiocy, on the whole, appears to be in strictness a natural sterility of mind, incurable from birth, and not the later perversion of a developed understanding ; yet we shbuld note that the lapse of an intelligent mind, through disease or decay, into a totally dark and benighted condition, is some- times, in popular speech, included under this head, or, more properly, that of imbecility.^ The great characteristic of idiocy or utter imbecility is permanence with little or no vari- ation, though it sometimes happens (as Dr. Lushington has 1 F. N. B. 532 B. And see i Redf. an entire destruction of the mental fac- 60; 4 Co. Rep. 123; Bac. Abr. " Idiots," ulties, was a consequence, by no means etc. A I. uncommon, of insanity, as a result often 2 I Hale P. C. 29; Hovey v. Chase, of some sudden shock, and that persons 52 Me. 304. may be rendered permanently insane ' See I Redf. Wills, 61, which, how- and finally imbecile, by disappointment, ever, seems a careless use of the word bereavement, religious despair, and other "idiot." But this distinguished writer severe shocks upon the nervous system, knew well what he asserted, when he lb. 65, 66. stated that absolute dementia, involving 90 CHAP, v.] INCAPACITY OF IDIOTS, ETC. §93 observed) that an idiot will demonstrate a greater degree of excitement at one period than another.^ § 92. Idiots and Utter Imbeciles have no Testamentary Capacity. — Idiots and utter imbeciles of every description, whether the want of understanding were produced at birth or in later life, are necessarily devoid of testamentary capacity.^ Such persons may acquire a title in property by act of the law, but they cannot manage their own affairs, nor make a valid contract, nor of course a will ; nor are they held respon- sible for criminal acts ; in short, the civil disability of an idiot or utter imbecile is as complete as possible.^ § 93. The Same Subject illustrated. — A recent New York case affords an instance of base mental condition, approximating 1 Bannatyne v. Bannatyne, 14 E. L. & Eq. 581, 590, y^iyper Dr. Lushington. '^ Bannatyne v. Bannatyne, 14 E. L. & Eq. 581; I Redf. Wills, 61; Con- verse V. Converse, 21 Vt. 168. So low is the order of intelligence and capacity for idiots that the difficulty ordinatily presented in contests over the will of a testator whose sanity is at issue cannot be said to arise here. Cases of incapacity where intellect is manifested to a very low degree may be dismissed from the present consideration. See e.g. the facts presented in Stewart v. Lispe- nard, 26 Wend. 255. If the alleged idiot can be shown to have intelligently and without constraint or fraud per- formed acts of business during the period in which idiocy is claimed to exist, he is no idiot at all. Bannatyne v. Banna- tyne, 14 E. L. & Eq. 581, 16 Jur. 864, is a case in point. It was shown that the testator kept a bank account, drew drafts properly upon it, and received the money alone in person. " Many acts of business," observes Dr. Lushing- ton while discussing these facts, " could possibly be done by a lunatic and the lunacy not detected; but it is scarcely possible to predicate the same of an idiot or an imbecile person. . . . Surely no idiot could have done this, for he 91 must have exercised thought to go to the bank, memory and judgment as to the sum required; and moreover his con- duct and demeanor could not at such times have been as described by the witnesses against the will, or, from the glaring colors in which his imbecility is depicted, it must have been discovered, and the business could never have been transacted at all. ... To put these acts upon the very lowest basis on which they can be placed, they do utterly dis- prove idiocy or imbecility. I will sim- ply repeat, what I have already said, that those who are afflicted with lunacy sometimes have the management of and can manage their pecuniary affairs, — an idiot never." * Dr. Ray and some other writers on medical jurisprudence define " imbecil- ity " as a form of insanity consisting in mental deficiency, either congenital or resulting from an obstacle to the devel- opment of the faculties, supervening in infancy. Dr. Ray, "Insanity," 71; Wharton & Stills, § 314; Bouv. Diet. " Imbecility." This is rather a narrow definition for the law to stand upon, considering the popular significance o( this word ; nor are the courts by any means so precise in its use. § 94 LAW OF WILLS. [PART IL idiocy, in one of whose incapacity those who planned for her property appear to have taken advantage. An unmarried woman owning real estate of considerable value lived, after her mother's death in 1862, at the house of her cousin. Here she died in 1879, a little more than fifty years of age, having made the alleged will in 1869, signed by a cross, which left all to a member of the family, her cousin's daughter. This daughter was present when the alleged testatrix visited a law- yer's office, where the will was drawn, and also at the time of the alleged execution. It was this daughter's brother who wrote decedent's name around the cross. As to the alleged testatrix herself, it appeared that she was a member of the Methodist church, and attended church and Sunday school regularly ; that she took care of her room and person, and could do some light housework and needlework. But she was not in vigorous health, was afflicted with stuttering, uttered only short sentences, never learned to read or write, though she had attended school for three years, could not count more than ten, nor tell the time of day from the clock, nor add or multiply ; had no idea of the value of property, or of money beyond ten cents, was easily lost in familiar streets, had no understanding of what her estate was worth ;*~ otherwise evinced a weak mind, being unable to attend to most of those things which persons of ordinary intelligence can perform ; had two sisters, one of whom was in an insane asylum, and in 1 87 1 was herself adjudged an idiot. Upon this testimony the court refused to admit the will to probate.^ § 94. Persons born Deaf, Dumb, and Blind. — Persons born deaf, dumb, and blind were long presumed by our law to be idiots ; for the senses being the only inlets of knowledge, and these, the most important of them, being closed, ideas and associations were shut out from the mind.^ It followed that no such person was capable of making a valid will.^ Down to 1 Townsend v. Bogart, 5 Redf. 93 '2 Bl. Com. 497 states the incapacity (1881). firmly as to those born deaf, dumb, and ^ I Wms. Exrs. 17; Swinb. pt. 2, §4, blind. And as late as the New York pi. 2 ; Taylor Med. Jur. 690, 691. case of Brower v. Fisher, 4 Johns. Ch, 92 CHAP, v.] INCAPACITY OF IDIOTS, ETC. § 94 a period not a hundred years remote this opinion widely pre- vailed, a contempt for ,physical infirmity, long characteristic of the English race, giving emphasis to the hopeless condition of these unfortunates. Even the deaf-mute, so born, whose eye was quick to observe, has been remitted to the same rule of incapacity, for, though he might be intelligent, others did not commonly find him intelligible.^ Infirmities such as these may be, and, we think, usually are, purely physical in their origin, involving no abnormal condition of the brain. But like a solitary prisoner of state who pines for years in a dark dungeon, one lapses into mental disorder, or his faculties become stunted and fail of their natural development, because sympathetic intercourse and the edu- cating process are wanting. Particularly is this true of those born deaf, dumb, and blind ; for when disqualification comes through the failure of the senses after the mind has devel- oped, so that solitude is not vacancy, or where one at least of these three channels of social intercourse is left open, capacity ought more readily to be presumed than incapacity. Deaf-mutes are found in our times as bright and intelligent as the average of mankind in any class, and the remarkable instance of •Laura Bridgman has shown the humane world, since 1848, what training combined with sympathy can do to redeem one born deaf, dumb, and blind from the reproach of idiocy.^ It should, in truth, be set down, that, like the solitary captive in his dungeon, such beings have become mentally 441 (a.d. J820), the deaf and dumb by the notorious fact, that the want of nativity were considered as prima facie hearing and speech exceedingly cramps insane until capacity was proved by the powers, and limits the range of the special examination. The decision un- mind." der an inquest cleared, to be sure, the 1 I Redf. Wills, 51, 52; I Wms. Exrs. defendant, because the presumption was 17; Brower v. Fisher, 4 Johns. Ch.441. overcome, and Chancellor Kent refused ^ Laura Bridgman was, at the Insti- to deem him an idiot from the mere tution of the Blind in South Boston, circumstance of being born deaf and taught how to converse and even to dumb. " Perhaps, after all," adds the write. Her case and its successful Chancellor, "the presumption in the treatment excited the astonishment of first instance is, that every such person European tourists some forty years ago, is incompetent. It is a reasonable pre- many of whom describe her appear- sumption, in order to insure protection ance in their published books of Ameri- and prevent fraud, and is founded on can travel. 93 § O/S LAW OF WILLS. [PART II. deranged in the past more from the want of an outlet than an inlet ; that the callousness or cruelty of the strong has proved their crushing misfortune. For no one is so physi- cally bereft of the senses, that mind, if there be one, cannot in some way respond to mind. § 95. The Same Subject: Unfavorable Presumption, if any, may be overcome. — But the presumption of idiocy and testa- mentary incapacity in those born deaf, dumb, and blind was by the common law prima facie only, and might always be overcome by proof that the person had sufficient understand- ing ; in which case he was at liberty to declare by signs a will, which, under present statutes, ought further to be reduced to writing, according to his wishes, and suitably executed.^ For one may execute a written instrument without seeing it or knowing how to write. Modern alphabets and codes make obvious the intention of the dumb, many of whom can express themselves on paper at this day as well as the average of society. It is by no means impossible, then, that one deaf, dumb, and blind should make a valid will ; ^ and that deaf-mutes or any others whose senses are not deficient beyond one or two of these infirmities may do so is clear .^ Deafness, though ab- solute, creates no incapacity. In short, it is doubtful whether the presumption of incapacity retains in our law any force whatever as to the deaf, dumb, and blind ; but if it does, very slight proof will dispel it, in any case where education has drawn out the imprisoned intellect.* § 96. Persons Deaf, Dumb, or Blind, but not born so, pre- sumed Capable. — They who have maintained that the deaf, dumb, and blind are to be presumed incapable of testamen- tary disposition, appear to have confined this positive asser- 1 See 2 Bl. Com. 497 and notes. Kent; Weir w. Fitzgerald, 2 Bradf. 42; "^ Richardson, J., in Reynolds v. Rey- 2 Bradf. 265; Potts v'. House, 6 Geo. nolds, I Spears, 256; Weir v. Fitzgerald, 324; Dickenson v. Blisset, i Dick. 268; 2 Bradf. 42. Harper, Re, 6 M. & Gr. 731. ' 1 Redf. Wills, 51, 52; Brower v. * Gombault v. Public Admr., 4 Bradf. Fisher, 4 Johns. Ch. 441, per Chancellor 226. 94 CHAP, v.] INCAPACITY OF IDIOTS, ETC. § 97 tion to such as were born so. To suppose that from one or all of those infirmities a mind which has once reached discre- tion becomes prima facie disqualified is an insult * to the afflicted. Deafness, dumbness, blindness may, to be sure, like a humpback or splay-foot, the loss of a limb or some incu- rable disease, or any other impediment to social enjoyment, in extreme cases produce moroseness and distortion of charac- ter ; but the progress towards mental incapacity, if there be any, is usually very gradual. Nor can we easily conceive of a person who is made a deaf-mute by causes which supervene the state of infancy; on the contrary, the disability thus manifested is partial only, unless indeed the sufferer should reach that last stage of general decay and exhaustion where the collapse of faculties, mental and physical together, makes it plain enough that reason has lost her throne.^ Instances may be found, quite recent, in the reports, where the will of a blind and deaf person, made when he was more than a hundred years old, has been allowed probate.^ Blind- ness, deafness, or dumbness, in a case like this, and whenever, in fact, the disability was not congenital, may still be compe- tent as bearing upon the issue of mental capacity,' of will or no will, but the infirmity itself affords no presumption what- ever of legal disqualification. § 97. Liability of Deaf, Dumb, and Blind to Imposition and Error. — Aside, however, from the question of their capacity or incapacity, it is evident that the deaf, dumb, and blind are peculiarly liable to error and imposition, not to add constraint, in making their wills, so often dependent are they upon others for expressing their last wishes, if not physically helpless be- sides. 1 Swinb. pt. 2, § 10; I Wms. Exrs. 18. testator, a person of great intelligence 2 Wilson V. Mitchell, loi Penn. St. and acquirements, but totally deaf in his 495. Nearly as strong a case is that declining age, had for a long time car- of Lowe V. Williamson, I Green Ch. ried on communications with others by 82. And see Gombault ». Public Admr., their writing on a slate and receiving 4 Bradf. 226; Weir v. Fitzgerald, 2 his answers orally, it was competent to Bradf. 42. In Gombault v. Public Admr., perform the ceremonies of executing his 4 Bradf. 226, it was held that where the will in that mode. 95 § 98 LAW OF WILLS. [pART II. As to educated mutes who can read and write no great difficulty need arise. It would be desirable for one of this class to write out his will, or else the instructions to his scrivener ; and in all respects he ought to express his wishes so that the witnesses to his testament shall understand him clearly. Where signs of understanding and approval are made instead, the deaf and dumb code, now so common in conversation, seems a preferable method to mere motions whose meaning strangers surrounding him might fail to interpret intelli- gently. That mode of execution, in short, which is most intelligible to the outside world, as well as to intimates, fellow- sufferers, and deaf and dumb instructors, is the most prudent, on the whole, for making it clear that the will attested was the product, in all respects, of the testator's own mind.^ § 98. The Same Subject : Wills of Blind Persons. — One with an impediment makes, in fact, the most intelligible will where he avoids the uncertainty peculiar to that impediment. Thus the educated man, deaf or speechless, who writes or carefully reads to himself his own will, and makes the most of his sight, enters upon a disposition not likely to fail. The blind has his own corresponding precautions to take, and should naturally make the most of his other organs. In the old text-books of ecclesiastical law, it was laid down that the blind person might make his oral or nuncupative will, but not a written one, unless the writing had first been read over before witnesses and duly acknowledged by the testator in their pres- ence ; and the civil law following its own formula of capacity, was to much the same effect.^ With nuncupative wills ^ I Redf. Wills, 52; Swinb. pt. 2, stating the nature of these signs and § 10, pi. 2; I Wms. Exrs. 17, 18. A motions by which the instructions were testator, in 1 reported case before the communicated, and ultimately refused English court of probate, was deaf and to grant probate of the instrument, dumb. He made his will by communi- Owston, Goods of, 2 Sw. & Tr. 461. eating instructions to an acquaintance And see Geale, Re, 3 Sw. & Tr. 431 ; by signs and motions. These instruc- Moore v. Moore, 2 Bradf. 261. .tions were reduced to writing; and the '^ i Wms. Exrs. 18, 19; Swinb. pt. 2, will was accordingly executed. The § 11. For the reason of the Roman court required, however, an affidavit law on this point, see Gaius, ii. 102-104; from the person who drew the will, Inst. ii. 123. 96 CHAP, v.] INCAPACITY OF IDIOTS, ETC. § 99 English and American courts have, of course, but little con- cern in modern times, as most wills should be written ; but our law is not at the present day so rigid with reference to the written wills of those deprived of sight. It is highly expedient, doubtless, that such a will should not be executed or wit- nessed without being first carefully read to the testator aloud.^ Yet the testator's knowledge and approval of the contents being the main thing, wherever this is assured by adequate proof of some sort, the other requirement may well be dispensed with.^ Good reason might exist for keeping witnesses ignorant as to the contents of the will read to the testator which they are called upon to attest ; ^ but it is not necessary to show even that the identical paper produced for probate was ever read over to the testator himself.* In short, the blind testator's knowledge of the contents of the instru- ment may be inferred from the whole of the testimony, and the circumstances attending its execution.^ His declarations made after the execution of the will are competent to show that he knew what provisions his will contained at the time he executed, and that the instrument, in fact, embodied just what he purposed it should.® § 99. General Conclusion as to the Wills of the Deeif, Dumb, and Blind. — In a case, therefore, of mere blindness, or other physical infirmity, if no allegation of deception, undue influ- ence, essential error, or fraud of any kind is made or sustained, probate of the will should be granted upon satisfactory evi- dence that the testator knew and approved of the contents of the instrument. Our law does not prohibit the deaf, dumb, or blind from making their wills. Defects of the senses and bodily defects, or diseases in general, do not incapacitate if 1 Fincham v. Edwards, 3 Curt. 63; ». Lewis, 6 S. & R. 496; Hess's Appeal, Weir V. Fitzgerald, 2 Bradf. 42. 43 Pen"- St. 73; Boyd v. Cook, 3 Leigh, 2 I Wms. Exrs. 18; 4 Burn Ecc. L. 32; Glifton v. Murray, 7 Geo. 564; 60; 2 Cas. temp. Lee, 595; Martin v. Martin v. Mitchell, 28 Ga. 382. Mitchell, 28 Ga. 382; i Redf. Wills, ° Guthrie z/. Price, 23 Ark. 396 ; Day SS; Axford, Re, I Sw. & T. 540. v. Day, 2 Green Ch. 551. « Wampler v. Wampler, 9 Md. 540. ' Davis v. Rogers, I Houst. 44; 4 Fincham v. Edwards, 3 Curt. 63, Hurleston v. Corbett, 12 Rich. 604. affirmed in 4 Moore P. C. 198; Lewis 97 § 99 LAW OF WILLS. [PART II. the testator possesses sufficient mind to perform a valid testamentary act. As for our present statutes of wills, they do not, in any instance, insist upon the ceremonial of reading over the will to the testator in presence of the witnesses, desirable as such a ceremonial might be, in case of the illiter- ate or those of very defective vision.^ It is true that some- thing more than the mere formal proof of execution is requisite to establish the validity of a will when, through the infirmities of the testator, his impaired health and capacity, or the circumstances attending the transaction, the usual inference cannot be drawn from the formal execution. In such a case, additional proof should be furnished that his mind accompanied the will, and that he was cognizant of its provisions. This, however, may be established by the sub- scribing witnesses or by evidence aliunde? It follows that, in the probate of wills executed by a blind, deaf, or dumb testator, there is no positive requirement that the witnesses should be able to depose that the testator was cognizant of the contents of the paper which he declares to be his will, and desires them to attest ; ^ though there can be no question that the more prudent and proper course is for the disabled testator, by appropriate acts, to make that cognizance clear to them. Some of eminent authority appear still to regret the de- parture of that ancient injunction that the will of a testator who is blind or cannot read, should be read over to him in the presence of witnesses before he executes it.* But the liberal rule of the present day on that point is sensible, natural, and founded in practical experience. Even suppos- ing the will to have been thus read over, cognizance does not ' In Weir v. Fitzgerald, 2 Bradf. 42, fraud, the substitution of one instru- 68, these doctrines are carefully set ment for another, and to secure evi- forth. The Roman civil law on the dence, beyond the mere factum of the point of a blind man's will, observes will, of the knowledge of the contents Bradford, Surrogate, in this case, has of the identical will by the testator." not prevailed in England, nor been in- ^ lb. corporated in any of the statutes rela- ' 1 Redf. Wills, 57; Fincham v. live to wills. " The object of requiring Edwards, 3 Curt. 63; Weir i;. Fitzgerald, the will to be read to the blind man," 2 Bradf. 42. he adds, " was doubtless to prevent * See i Redf. Wills, 58. 98 CHAP. V.J INCAPACITY OF IDIOTS, ETC. § 99 necessarily follow ; yet cognizance is the essential. At the same time, the force and justice of Jarman's observation under this head must be conceded : " That, in proportion as the infirmities of a testator expose him to deception [or, we may add, to material error], it becomes imperatively the duty, and should be anxiously the care, of all persons assisting in the testamentary transaction, to be prepared with the clear- est proof that no imposition has been practised [or error incurred]." ^ I I Jarm. Wills, 34. 99 § lOO LAW OF WILLS. [PART IL CHAPTER VI. LUNACY AND GENERAL MENTAL DERANGEMENT. § lOO. Scope of Present Chapter; Lunatics and Others of Mental Unsoundness in the Medium Degree. — Our endeavor in the present chapter is to consider the incapacity of those insane persons whose mental development is higher than that of the idiot or imbecile, but lower than that of the mono- maniacs, so called, the delirious, and the feeble-minded, of whom it can by no means be predicated that they are inca- pable at all. Mental unsoundness in the medium degree gives the scope to this chapter. At the outset, however, we shall admit that the finer attempts to classify and describe the various types of insanity are by no means satisfactory ; that the forms and symptoms under which mental derange- ment manifests itself are so subtle and diversified, varying in fact, in different stages of social progress, running like a mountain brook now above ground and now under it, as to baffle the most wary and skilful of expert observers ; and that one habit of classification has been superseded by an- other, without arriving at tests final and unerring. Insanity, to define that word, settles, as we have already indicated, in the opinion of the best medical men, into a comparison of the individual with himself and not with others ; that is to say, some marked departure from his natural and normal state of feeling and thought, his habits and tastes, which is either inexplicable or best explained by reference to some shock, moral or physical, or to a process of slow decay, shows that his mind is becoming diseased and disordered. Perhaps the seed of hereditary malady is germinating within him ; perhaps the pressure of some sudden calamity affecting his future life and prospects, or some apprehended danger, is too great for the brain to bear up ; its walls give way to the strain, and those most intimate with lOO CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. him, and not seldom the individual himself, will conscious that some sort of mental derangement place.^ § lOi. The Same Subject. — Lunatics and idiots constituted formerly the only two classes of which the courts took cog- nizance when called upon to protect persons who were men- tally deranged. To idiots who were supposed never to have had reason, applied the term dementia naturalis ; but to lunatics dementia accidentalis, for their condition involved a loss by mischance of the reason they had once possessed. Hence, lunacy embraced in the broad sense all mental un- soundness not congenital, all, in a word, except idiocy. But this imperfect classification has within a century been discarded. For imbeciles of the lowest order, though acci- dentally demented, may well be graded with the idiot or natural fool ; while lunacy, on the other hand, falls so far short of describing the second grade of insanity that a reser- vation of " others non compotes " or some such expression became needful ; for which reason a new term, " unsoundness of mind," was introduced, which, medical experts tell us, has never been very clearly defined. Lunacy, as the word strictly imports, was a sort of inter- mittent or tidal insanity, so to speak. The deranged mind, in such cases, was supposed to be influenced by the moon, or at least the disorder was most violently manifested at recurring periods, and by regular phases. Another phenomenon attend- ing it was that of lucid intervals, when the mind seemed to shine out brightly like the full moon emerging from a cloud when the sky is partly overcast. But the moon illustration has obviously no fitness for a great many of the milder exam- ples of insanity, where, in fact, no violent derangement is exhibited, no periodical ebb and flow of madness, no lucid intervals when reason resumes her sway. In these latter cases a loss of intellect, feebleness of will, a perversion of tastes, habits, and character, and an incapacity, more or less 1 Dr, Ray, Insanity, 71 e/ seq. ; Dr. Gooch in 43 London Quarterly Rev. 355. And see i Redf. Wills, 67. lOI § I03 LAW OF WILLS. [PART IL marked, to alpprehend the true relation of things, constitutes essentially the mental disorder.^ § 1 02. niuBions are a Proof of Unsound Mind; Perversion and False Judgment are also found. — " The belief in the ex- istence of mere illusions or hallucinations, creatures purely of the imagination, such as no sane man could believe in," observes Judge Redfield, "are unequivocal evidences of insanity. But where the party has correct perceptions, he will be able to make an understanding disposition of property by will, unless from imbecility he is incapable of estimating the just relations of things, or of recollecting fully the ele- ments of a will." 2 In many cases, he adds, however, the intellectual powers seem to have suffered a perversion, so that the person becomes incapable of forming correct in- ferences and deductions from those facts which he may correctly observe or recollect, and thus his judgment be- comes no safe guide for his conduct.^ § 103. Attempts of Experts and Others to classify Insanity. — That the task of classifying the different forms of insanity is a formidable one appears in the greatly differing results which the best of medical experts thus far afford. Tests of causa- tion, symptom and order of development, all of which have their undoubted uses in the study of mental disease, are not unfrequently confounded in the most arbitrary manner. Among examples of analysis the most simple and philosophi- cal, two, however, may be selected. The first is that of Casper and Liman, which classifies under two heads : (i) In- sanity in its progress, including despondency, melancholy, excitation, mania, as among the various forms in which this progress exhibits itself ; (2) Insanity in its results, including imbecility, dementia, and fatuity.* The second analysis is by Dr. Ray, who adapts to his pur- 1 Gooch, 43 Lond. Quart. Rev. 355; ^ , Rgjf, Wills, 67; Taylor Med. 3 Curt. Ecc. 671; 1 Whart. & Stillfe Jur. 629. Med. Jur. §§ 61, 744. » i Redf. Wills, 68. * I Wharton & Stilli Med. Jur. § 310. 102 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § IO4 pose the old division of natural and accidental insanity, and appears to restrict "imbecility" still to such abnormal types as are referable to birth or early years.^ He arranges all the various disorders included in the general term insanity under two divisions, founded on two very different conditions of the brain: (i) A want of its ordinary development; (2) Some lesion of its structure subsequent to its development. "In the former of those divisions," he adds, " we have idiocy and imbecility, differing from each other only in degree. The various affections embraced in the latter general division may be arranged under two subdivisions, mania and dementia, dis- tinguished by the contrast they present in the energy and tone of the mental manifestations. Mania is characterized by unnatural exaltation or depression of the faculties, and may be confined to the intellectual or to the effective powers, or it may involve them both, and these powers may be generally or partially deranged. Dementia depends on a more or less complete enfeeblement of the faculties, and may be consecu- tive to injury of the brain, to mania, or to some other disease ; or it may be connected with the decay of old age." ^ Both of these modes of classifications are commended by writers on this branch of jurisprudence ; but, after all, the chief advantage that they afford is to medical men and psychologists, whose positive sanction has not been accorded to either analysis.^ For no hypothesis, according to sound modern authority, can be constructed which will meet with exactness every possible case of mental unsoundness that may come before the courts.* § 104. Common Symptoms or Manifestations of Insanity. — The physiognomy of the person, his entire exterior, his ges- tures, his eyes, his words, the first impression produced upon him by the appearance of a physician, all these aid at once to detect whether he is insane, or bona fide sane, or cunningly 1 See supra, § 92. experts assembled in Paris (1867), Dr. 2 Dr. Ray Insanity, 71; i Wharton & Hammond, Flemming & ElUnger, de- Stille, § 314. tailed in i Wharton & Still6 Med. Jur. 3 See these modes of classification §§ 310-316. together with those of psychological * i Wharton & Stillfe, § 318. 103 § I04 LAW OF WILLS. [PART II. pretending insanity. The form of the skull is often found peculiar in every description of insanity, but rarely does marked malformation appear save as to idiots and the lowest type of imbeciles. Physical condition, though not necessary to prove insanity, since insanity may exist while the bodily functions are normal, or vice versa^ is often an important factor of proof, and the more so because such conditions cannot be feigned ; as for instance, nervous disturbances, sleeplessness, an irregular pulse, peculiar secretions, besides which, hereditary tendency and matters of temperament, dis- position, and age, and the like, call for medical attention. One's conversation and deportment, his writings, his prior history in general, all bear upon the question of sanity or insanity, when the observer desires to form a conclusion. So, too, the nature of the act or transaction, such as its insen- sibility, its incongruity, its motivelessness, and the person's apparent forgetfulness of it, his failure to profit by or escape from its consequences. All of these manifestations of insanity medical men take pains to observe in their diagnosis of a case.^ A change of moral disposition is one of the first symptoms, other than physical, with which insanity as a disease usually makes its appearance. It is thus described in the able treatise which we have just cited. " Extreme irritability, proneness to anger, suspicion, concealment, obstinacy, and perverseness are common. In regard to the affections, various abnormal impulses and inclinations are observed : such as fondness or aversion to particular persons, without any special reason ; disposition to exercise cruelty, murderous desires, a wish to commit arson, or to steal. Memory is generally good in ref- erence to things occurring during the disease, or to persons with whom the patient was then connected, but defective or mistaken as to things which occurred previously. Of the intellectual faculties not all are uniformly in an abnormal state ; on the contrary, some functions occasionally improve, 1 Supra, § 84. at length from the medico-legal stand- 2 See I Wharton & Stillfe Med. Jur. point. §§ 345~3S9> where this subject is treated 104 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § I06 thus producing a complex state of madness on the one hand, and of wit, refiection, and shrewdness, on the other." ^ § 105. The Will of a Lunatic or one Mentally Diseased is invaUd. — Now, as to wills more especially, and the testa- mentary incapacity of persons who are lunatics or mentally diseased ; in other words, the usual cases embraced under the head of general insanity, not congenital. While the insanity exists, the testament of such a person is not good, because every testament should be the product of a sound and dispos- ing mind and memory.^ But if the disease be not incurable, a state of mind may exist during which one's voluntary dispo- sition may deserve to stand as a normal one. And the men- tal disease in a patient may so advance or recede that at one stage he might be called capable, at another incapable, while at any stage all the circumstances surrounding the testa- mentary act would deserve a patient consideration. § 106. Effect of Restoration to Health, and Intermittent Insanity. — If this disease, like any sickness or disorder, ends in a complete restoration to normal health, the person, being no longer non compos, becomes capable once more of making a will. But complete restoration is less common than a cure which leaves the faculties still impaired and liable, through feebleness of intellect, volition, or moral sense, to unsound operation and susceptible to evil influences. An intermittent insanity, moreover, is observable in some cases, not merely in the sense of a transition from insane frenzy and delirium to insane repose, but so that the mind beams out clearly once more, so to speak, from the surrounding clouds, sometimes, but not always, with a lasting radiance sufficient to disperse them. For reason, when thrown from her seat, struggles almost instinctively to recover it before succumbing to adverse circumstances, as the swimmer who is swept down a current reaches out convulsively for rope or spar until despair over- 1 I Wharton & StillS Med. Jur. 3d Ed. But, of course, a will is not revoked s 361. by the subsequent insanity of the tes- 2 Swinb. pt. 2, § 3; 4 Rep. 123 b; tator. Swinb. pt. 2, § 3; 4 Co. 61 b.; Kemble v. Church, 3 Hagg. 273. Revocation, post. § I08 LAW OF WILLS. [PART II. whelms him. In either instance, the tenacious hold upon whatever offers may save the life or the reason, yet that hold will perhaps be lost again. § 107. Lucid Intervals. — Of that shining out through the clouds, as it were, the reports have had much to say in deal- ing with lunatics, whose mental condition suggested to those who watched them the peculiar phases and solitary wander- ings of the moon. In the first stages of insanity particularly, and until the malady becomes incurable and confirmed, the attacks are to some extent intermittent, occurring at regular or irregular intervals, as the case may be, and accompanied by alternate paroxysms and relaxations. But, as an eminent writer observes, "the term 'lucid interval 'has acquired a kind of technical import in legal language, and is not, in that sense applicable to this intermittent character of the disease."^ Some eminent psychologists deny the possibility of lucid intervals, as our courts define that phrase.^ But there seems no good reason to doubt that such a condition of mind may exist; for many examples, besides that of George III., serve to remind us that one who loses his reason may be restored to apparent health and yet at some later date, perhaps not for years, relapse into clear insanity under the pressure of age or harassing experience. This, perhaps, is drawing the line of lucid intervals more boldly than the phrase assumes ; but if the bold lines are visible, the finer ones doubtless exist, though the layman cannot trace them so clearly. The lucid interval involves, in general, a restoration of reason, consciousness, and insight sufficient for performing certain intelligent acts and assuming at least a modified penal responsibility ; but in the more delicate shades of the malady, medical science con- fesses that the mind is not entirely clear, nor is the patient quite the capable person that he was before he became insane.* § 108. Lucid Intervals, as Distinguished from Mere Abate- ment of Mania, ete. — The eminent Dr. Taylor draws a dis- 1 I Redf. Wills, 63. 2 See I Wharton & StillJ Med. Jur. §§ 744-747- * lb. 106 CHAP. VI.J LUNACY AND MENTAL DERANGEMENT. § Io8 tinction between a lucid interval and the mere remission of mania. " By a lucid interval," he says, " we are to understand a temporary cessation of the insanity or a perfect restoration to reason. This state differs entirely from a remission, in which there is a mere abatement of the symptoms." ^ And again he observes, more cautiously, that nothing more is intended by lucid interval than that the patient shall become entirely conscious of his acts and capacity.^ Other writers of authority on medical jurisprudence have attempted a closer grade of the different kinds of improvement or interruption, varying in order as insanity abates. There is (i) the lucid interval, essentially as defined in the foregoing section ; (2) remission, which differs from a lucid interval only in degree, being generally attended with a subsidence of the external manifestations of the disease, insufficient, however, to be mis- taken for recovery ; (3) alternation, which term imports a change from one form of mental unsoundness to another, as, for instance, from mania to depression, and conversely, which transition is often so gradual as to give the deceptive appear- ance that the patient is returning to health ; (4) intermission, when the disease recurs at more or less regular periods, and no anomalous symptoms are presented.^ And to quote Dr. Rush, " The longer the intervals between the paroxysms of madness, the more complete is the return to reason. Remis- sions rather than intermissions take place when the intervals are of short duration, and these distinguish it from febrile delirium, in which intermissions more generally occur." * Distinctions so fine as these are hardly admissible in judi- cial administration. But to take the lucid interval in its wider tegal acceptation, there is good ground for recognizing often a certain capacity for civil transactions, a certain re- sponsibility in one who has been insane, even though his restoration to mental soundness at the particular stage of 1 Taylor Med. Jur. 651; I Redf. tremely difficult to detect in a case of Wills, 108, 109. This is, perhaps, too insanity, confident an assertion of the distinction ^ lb. in question, which must often be ex- ' i Wharton & StillS, § 747. * Rush on the Mind, pp. 162-164. 107 § I09 LAW OF WILLS. [PART II. action, may not, upon a full review of his life, be pronounced perfect. Medical jurists of established repute themselves admit that even though, in an absolute diagnostic point of view, they prefer to reject the lucid interval theory, and be- lieve in the continuity of the insane malady, they still think that one who is deranged can perform certain acts with a perfect knowledge of cause, and can even exercise his intelli- gence, provided that he is placed under the influence of cer- tain protective conditions. " The regulating discipline of an asylum," wisely observes a recent writer, "tends greatly to this result, and therefore it is not astonishing if one insane can perform certain civil acts of a simple character, and may consent to a division of property, or even authorize a marriage. The legality of the act is essentially subordinate to a previous appreciation of the extent of the delirium at the time, and the relations existing between the action and the delirious conception. So, though not admitting the existence of a lucid interval, we still believe that the madman may be placed in a situation that permits him to appreciate the action demanded of him." ^ § 109. Lucid Intervals in Cases ^rhich involve Testamen- tary Capacity. — The admission of medical jurists just noted is sufficient for the legal theory of lucid intervals which we find practically applied by our courts, in cases which involve the issue of testamentary capacity. Here, let us observe, although the insane person himself has passed beyond mortal jurisdiction, and the issue must be determined without him, the whole range of his life and the circumstances of his death assist the diagnosis. " Lucid interval " has here no fine-drawn significance ; but the legal idea is that the insane person's mind, though not positively and absolutely restored to normal health, was at least capable, at the time of the tes- tamentary act, of performing that act, and did so with inde- pendence and intelligence sufficient to justify the conclusion that his will should be sustained as a valid one. One lately insane who has fully recovered his reason once more may 1 I Whart. & Stilli Med. Jur. 3d Ed. § 745. 108 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § IO9 unquestionably make his will like any other person sui juris ; but the law recognizes a mental condition less complete — one which falls short of a plain cure, and yet should be distin- guished from that condition where the patient, though calm, is still insane and incapable. " By a perfect interval," says Lord-Chancellor Thurlow, " I do not mean a cooler moment, an abatement of pain or violence, or of a higher state of tor- ture, a mind relieved from excessive pressure ; but an interval in which the mind, having thrown off the disease, had recov- ered its general habit." ^ This figure is convenient to enable laymen to distinguish the conditions ; but the definition does not, or should not, imply that one must be absolutely restored to normal soundness, for the time being, in order to make a valid testament. The faculties of the mind are indeed re- stored sufficiently to enable a testator to comprehend soundly the business in which he is engaged ; but he may still be laboring under extreme feebleness, from the effects of the disorder ; it may be highly probable, moreover, that the par- oxysm, the violent symptoms, will recur ; and his restoration may be to the disposing state or mind, but not to a state so healthy as before.^ 1 Attorney-General v. Parnther, 3 recognizes the fact established by expe- Brown C. C. 444. See Eden's note, rience, and does not hesitate to ratify ib. 445; II Ves. ii, commenting upon the validity of a transaction performed Lord Thurlow's definition. in a lucid interval; though it is exact- Upon this subject of lucid intervals ing in its demands, and scrutinizing in Bradford, Surrogate, in 1857, observed its judgment, of facts adduced to exhibit with much force and discretion in Gom- and demonstrate intelligent action at bault V. Public Admr., 4 Bradf. 226, the time of the event under investiga- 238, as follows: "Among the most tion. The principle is thus stated in mysterious of the phenomena of the the Institutes : Furiosi autem si per id human mind, is the variation of the tempus fecerint (eslamenium quo furor power and orderly action of the fac- eorum iniermissus est, jure testati esse ulties, under different circumstances videntur. {Quibus non est permissum and conditions, and at different times; facere iestamentum, lib. 2, tit. 12, § i.) and especially mysterious is the oscilla- And it has been fully admitted in its tion from insanity to sanity, the rational broadest extent in the ecclesiastical power often fluctuating to and fro, until courts. There can be no doubt that reason ultimately settles down firmly during an intermission of the disease upon her throne, or falls, never again the testamentary capacity is restored." to resume her place in this life. With- ^1 Redf. Wills, 113; Hall v. War- out speculating upon this interesting ren, 9 Ves. 611, /^J* Sir William Grant; theme, it is sufficient tp say that the law Holyland, Ex parte, 1 1 Ves. 11. 109 § 1 10 LAW OF WILLS. [part IL § t lO. Will may be established as made during a Lucid In- terval ; Burden of Proof. — The will of a person who was at some period insane may be established in probate by over- coming any presumption of his incapacity ; and the force of such a presumption, or its existence at all, depends upon differing circumstances to be dwelt upon hereafter.^ If the testator, once insane, has been restored to perfect soundness, his will deserves as favorable consideration in the court of probate as though he had never lost his reason.^ But where a state of habitual insanity is shown, continuous and chronic, the presumption gathers great force that any will which such a person may have executed is tainted or discolored by his insanity, and consequently cannot operate.^ And unquestion- ably the state of insanity once clearly developed in the patient, there is much reason to apprehend that the disorder may again recur, though disappearing for a season. If, then, notwithstanding any adverse presumption, it can be estab- lished that the party afflicted habitually by mental unsound- ness was wholly cured when he made his will, or, much less than this, that the testamentary disposition took place while there was an intermission of the disorder, or, in other words, during a " lucid interval," the will should be upheld. There are English cases which thus sustain wills made during a lucid interval, subject to the unfavorable presumption against capacity which must first be overcome.* American cases are found of the same tenor.^ 1 Post, c. 9. der at the time of the act, that being 2 Snow V. Benton, 28 111. 306. proved, is sufficient, and the general ' See Hix w, Whittemore, 4 Met. 545 ; habitual insanity will not afTect it; but Steed V. Galley, i Keen, 620, 626. the effect of it is this, — it inverts the * Hall V. Warren, 9 Ves. 61 1; Holy- order of proof and of presumption; for, land, Ex parte, 1 1 Ves. 1 1 ; i Wms. until proof of habitual insanity is made, Exrs. 21, 22; White v. Driver, i Phil- the presumption is, that the party, like lim. 84; I Jarm. Wills, 36; Symes v. all human creatures, was rational; but Green, i Sw. &. Tr. 401 ; Nichols v. where an habitual insanity in the mind Binns, i Sw. & Tr. 239. of the person who does the act is estab- In Gartwright v. Gartwright, i Phillim. lished, then the party who would take 100, Sir W. Wynne thus states the prin- advantage of the fact of an interval of ciple : '' If you can establish that the reason must prove it." party afflicted habitually by a malady ' Gombault v. Public Admr., 4 Bradf. of the mind has intermissions, and if 226; Halley v. Webster, 21 Me. 461 ; there was an intermission of the disor- Brock v. Luckett, 4 How. (Miss.) 459; no CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § 112 § III. Lucid Intervals ; Clear and Satisfactory Proof required. — But clear and satisfactory proof should be required that the person habitually insane made the will in question intelli- gently and freely, during a lucid interval, where this and not a complete recovery is to be established. The authorities above cited are quite harmonious in this conclusion.^ Such proof, it has been well observed, is extremely difficult, for this reason, among others, that the patient is not unfrequently rational to all outward appearance without any real abate- ment of his malady.^ On the other hand, if the deceased was subject to attacks producing temporary incapacity, and was at other times in full possession of his mental powers, such attacks may naturally create in those who only happened to see him when subject to them a strong opinion of his per- manent incapacity. These considerations, while they tend to reconcile the apparent contradictions of witnesses, render it necessary for the court to rely but little upon mere opinion, to look at the grounds upon which opinions are formed, and to be guided in its own judgment by facts proved, and by acts done, rather than by the judgment of others.^ The standard of mental capacity which this proof should establish is, as we apprehend, the usual one favored by the later cases and set forth already: namely, capacity on the part of the testator sufficient to comprehend the condition of his property, also his relations towards the persons who are or might be the objects of his bounty, and the scope and bearing of the provisions of the will.* § 1 1 2. Circumstances Favorable to Proof of Lucid Interval ; a Just and Natural "Will. — It is a very favorable circumstance Harden v. Hays, 9 Penn. St. 151 ; Gang- v. Harrison, 2 Phillim. 459, and in other were's Estate, 14 Penn. St. 417; Coch- cases cited, i Wms. Exrs. 22; also by ran'sWill, I Monr. 263; Goble ?/. Grant, Tindal, C. J., in Tatham v. Wright, 2 2 Green Ch. 629; Lucas v. Parsons, 27 Russ. & M. 21, 22; and by Lord Lang- Geo. 593; Chandler v. Barrett, 21 La. dale in Steed v. Galley, i Keen, 620. Ann. 58. . * Supra, § 68. One may be confined 1 Cases cited in preceding section; in an insane asylum, from time to time, Sir John NicoU in White v. Driver, I for some brain disease, and released as Phillim. 88. his condition improves; and the will of 2 Brogden v. Brown, 2 Add. 445. such a person, made when competent, 8 These prudent observations are should stand. 13 N, Y. S. 255. made by Sir John NicoU, in Kindleside III § 112 LAW OF WILLS. [PART II. that a will whose execution is claimed to have taken place during a lucid interval appears just and natural in its provis- ions, so that injury cannot be done by admitting the instru- ment to probate ; and conversely, the harsh and unnatural will of one who was prima facie insane at its execution may well be presumed the offspring of a mind still clouded by the disorder. This, we have seen, is a maxim of much wider scope for doubtful cases of mental capacity.^ The English case of Cartwright v. Cartwright? decided by Sir William Wynne and affirmed on appeal, is in point. The testatrix had early in life been afflicted with mental disorder. She afterwards was supposed to have recovered and carried on a house and establishment of her own like any rational person ; but for several months before making her will and afterwards, many of the worst symptoms of insanity were manifested ; and at the date of its execution, so wild and agitated was her manner that, when the will was offered for probate, the sur- vivor of the attesting witnesses deposed quite unfavorably as to the sanity of the testatrix. The attending physician, it appeared, had kept his patient from using books and writing materials, but yielded at last to her clamorous importunity for pen, ink, and paper, and loosened her hands, which had been tied up ; whereupon she sat down in her room and wrote ; tearing up several pieces of paper and throwing them into the fire, pacing the room meanwhile in a wild and dis- ordered manner. The will was written out wholly by herself and she placed her seal to it very carefully. A reasonable inference from the whole testimony appears to have been that, impressed with the uncertainty of life and reason, she had earnestly resolved to make her will, and that such being her mental purpose, the experiment of keeping writing mate- rials out of her reach, instead of soothing her, threw her into great agitation. At all events, the eminent judge sustained the will, remarking very properly that the court did not depend on the opinions of the witnesses but on the facts to which they deposed.^ The testament in question was per- 1 Supra, §§ 77, 78. » Cartwright v. Cartwright, i PhiUim. * Cartwright v. Cartwright, l Phillim. go. 122. 112 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § 112 fectly proper and natural and conformable to what the affec- tions of the testatrix were proved to be at the time, and her executors and trustees were very discreetly appointed.^ Other instances, English and American, may be adduced where the will of a person habitually insane, has been sus- tained as the product of a clear and calm intermission or lucid interval on proof most especially that the disposition was a just and natural one, in all respects.^ And there is no 1 lb. Upon the rational character of the present testamentary disposition, Sir Wm. Wynne dwelt very strenuously in the course of his judgment. "The strongest and best proof that can arise as to a lucid interval," he observed, " is that which arises from the act itself of making the will. That 1 look upon as the thing to be first examined, and, if it can be proved and established that it is a. rational act rationally done, the whole case is proved. What can you do more to establish the act? because, suppose you are able to show the party did that which appears to be a rational act, and it is his own act entirely, noth- ing is left to presumption in order to prove a lucid interval. Here is a rational act rationally done. In my apprehension, where you are able com- pletely to establish that, the law does not require you to go farther." This statement he fortifies by the following citation from Swinburne : " The last observation is. If a lunatic person, or one that is beside himself at some times, but not continually, make his testament, and it is not known whether the same were made while he was of sound mind and memory or no, then in case the testament be so conceived as thereby no argument of frenzy or folly can be gathered, it is to be presumed that the same was made during the time of his clear and calm intermissions, and so the testament shall be adjudged good, yea, although it cannot be proved that the testator useth to have any clear and quiet intermissions at all ; yet, nevertheless, I suppose that if the testament be wisely I and orderly framed, the same ought to be accepted for a lawful testament." Swinb. pt. 2, § 3, pi. 14. Cartwright v. Cartwright was well decided upon the facts. And there were other strong circumstances (vide next section) which strengthened the conclusion in favor of the will. But later judges have questioned very prop- erly whether Sir Wm. Wynne did not use language somewhat too emphatic in approbation of a rational will. It is not to be supposed that the learned judge meant to assert that every rational act rationally done is sufficient to prove a lucid interval. It is the particular manner in which the act was done in this case which led the judge to con- clude that there was a lucid interval. Chambers v. Queen's Proctor, 2 Curt. 447, by Sir H. Jenner Fust. "Though I cannot say I altogether agree to that dictum [of Sir Wm. Wynne], still it is entitled to great weight, and, to a cer- tain extent, a rational act done in a rational manner, though not, I think, ' the strongest and best proof of a lucid interval, does contribute to the establish- ment of it." Bannatyne v. Bannatyne, z Rob. 472, 501, by Dr. Lushington. See also Nichols v. Binns, i Sw. & Tr. 239, per Sir C. Cresswell; Gombault v. Public Admr., 4 Bradf. 226, 239. 2 See incident mentioned in M'Adam V. Walker, i Dow. 178, by Lord Eldon; I Wms. Exrs. 27; Williams v. Goude, I Hagg. 577; Chandler v. Barrett, 21 La. Ann. 58; Chambers v. Queen's Proctor, 2 Curt. 415; Gombault v. Pub- lic Admr., 4 Bradf. 226. 13 §113 LAW OF WILLS. [PART II. conclusive reason why the will of a person habitually insane, might not stand under such circumstances, even though he executed it while confined in a lunatic asylum.^ On the other hand, the will of one known to be mentally unsound, has been refused probate, notwithstanding circum- stances of scrupulous care on his part in framing and execut- ing the instrument, where the disposition appears to have been absurd, weak, or unnatural ; as in the case of an insane person who falls indiscreetly in love with a chance acquaint- ance, and straightway makes his will for the sake of bestow- ing a generous legacy upon her.^ Wherever, in short, the will exhibits a decided perversion from the normal and natural disposition, thoughts, and feeling of the testator, while in his right mind, there is good reason to conclude it the offspring of insanity. § 113. Other Circumstances Favorable to Proof of Lucid In- tervaL — There may be other circumstances leading strongly to the conclusion that the will of one habitually insane which is presented for probate, was made in some clear or lucid interval. Thus, in Cartwright v. Cartwright, above stated, the testatrix not only made a fair and rational will, but pre- pared it wholly by herself in the seclusion of her own room ; and what was quite remarkable, wrote it out in a very fair hand, free from confused or absurd expressions of any kind, and without a blot or mistake in a single word or letter.^ These facts bore strongly in favor of the testam^tary act ; though, had the will itself been an unjust or foolish one, the accurate handwriting might have gone for little.* Whatever shows a careful revision or preparation of the draft by the tes- tator himself is material in the same direction.^ 1 Such was the case in Nichols v, ment was very accurately written by the Binns, I Sw. & Tr. 239. And see testator; and yet probate was refused. supra,.% 81. * Mairs v. Freeman, 3 Redf. (N. Y.) 2 Clarke v. Lear (1791), cited in i 181, is a case where it was shown that Phillim. 90, 119; I Wms. Exrs. 27. the testator drew the instructions for ' Cartwright v. Cartwright, i Phillim. the will, and corrected the draft with 90. his own hand; and the instrument was * In Clarke v. Lear, tupra, the instru- admitted to probate notwithstanding 114 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. § US If, again, the will proportions the different divisions of one's complex estate with very prudent care and a just regard to all the proper objects of one's bounty, this goes strongly towards proving, at least temporary sanity in the testator ; for it shows that his mind grasps comprehensively a large and intricate subject.^ Moreover, if reference to the testator's intentions, before his malady, shows that the will was in furtherance of intentions he had declared while positively of sound mind, this may corroborate the theory of a lucid interval.^ And so, too, where the testator, subsequent to its execution makes in- telligent recognition of the will and its provisions as though understanding it still to be the instrument which its face pur- ports.^ § 114. Lucid Interval more easily established in Delirium, etc., than in Habitual Insanity. — A lucid interval is more eas- ily established in cases of delirium, such as a fever or dissipa- tion produces, or where fluctuations arise from temporary excitement or from periodicity in the attacks of the disease, than in cases of habitual insanity.* Of delirium, in connec- tion with the testamentary act, we shall speak more fully in the next chapter. § 115. Proof should be scrutinized 'm'here Mental Disease is Insidious and Slow. — In general, a will made in a lucid inter- val may be valid ; but the facts establishing intelligent action minor errors shown, such as reciting his Phillim. go. In Gombault v. Public own age as 75, when it was really 77, Admr., 4 Bradf. 226, the fact that the and mistaking the order in which two contest was between the State, claiming of the daughters were born. See also an escheat, on the one hand, and par- Legg V. Myer, 5 Redf. 628, where it ties, on the other, who stood to the de- was shown that the testator took the cedent in terms of intimate confidence instrument after it was read to him, and and affection, bore in favor of presum- read it himself, pointing to certain ing a lucid interval in the testator, though words which at first he was unable to the court weighed all the testimony very decipher. fairly. 1 M'Adam v. Walker, i Dow, 178. * Brogden v. Brown, 2 Add. 445; 2 lb. ; Coghlan v. Coghlan, I Phill. Gombault v. Public Admr., 4 Bradf. go. 226, 239; Staples V. Wellington, 58 ' This was still another circumstance Me. 453. shown in Cartwright v. Cartwright, i "5 § Il6 LAW OF WILLS. [PART IL should be shown, and as already stated, the nature and char- acter of the instrument are of much importance to such an issue. Where a disease ultimately affecting the mind was insidious and slow in its development, and it may be sus- pected that before the testamentary act the patient or those in charge of him apprehended mental derangement, there should be a careful scrutiny of a will made shortly before the symptoms of insanity were unmistakable. Here it is desira- ble to learn if possible whether the testamentary act in ques- tion was rational and natural and conformed to the views and wishes of the party when mentally sound and healthy.^ § 1 1 6. Doubtful Instances of Mental Derangement; Paralysis, Prostration, etc. — " If no actual derangement or mental imbe- cility be found," observes Mr. Justice Washington, " it is not sufficient per se to assign a cause of derangement which might or might not have produced that effect. Paralysis, for instance, is sometimes a cause of mental derangement, and frequently it is not. If attended by apoplexy, or an affection of the nerves, it necessarily affects the mind ; but it frequently affects only the muscles, thereby producing bodily infirmity alone, and leaving the mind unimpaired. If the patient sur- vives the stroke for any considerable length of time, it may in general be concluded that it was simply a paralysis affecting the body only."^ More than this, it may be affirmed that great intellectual and physical weakness or prostration, even though accom- panied by a partial failure of mind and memory, is not of itself sufficient ground for setting aside a will, if there still remains sufficient mind and memory to bring the testator within the rule of testamentary capacity which we have already set forth.^ And whether this weakness or prostration 1 Gombault v. Public Admr., 4 Bradf. where neither insane delusion nor undue 226. influence appears in proof. 6 Dem. 2 Hoge V. Fisher, i Pet. C. C. 163. 123. And see 12 N. Y. S. 122, the 5 Supra, § 68. The will of a testa- case of a testator who fainted and lost trix of feeble health and nervous tem- consciousness, through feeble action of perament, subject to hysteria and of the heart, and then slept and awoke, marked personal peculiarities and per- feeling much better, and executed his sonal prejudices, may be sustained, will. 116 CHAP. VI. J LUNACY AND MENTAL DERANGEMENT. § II7 arises from paralysis, or an attack of apoplexy, or heart trou- ble, or any other cause, the cardinal principle of testamentary capacity is always the same.^ One might by a stroke of paralysis or apoplexy be rendered for a time unconscious, and incapable of mental action ; yet the mind so commonly rallies from a first shock in such cases that, should the patient months afterward make his will, habitual and continuous in- sanity ought not to be presumed to the disfavor of its probate.^ So, too, may it be, where one suffers great pain at times, during his last sickness.' Where one, after paralysis, or some enfeebling disease, attends to his business and manages his property with rea- sonable prudence and judgment, the inference of his testa- mentary capacity must be very strong.* § 1 17- "^^o Same Subject illustrated: Mississippi Case. — In a Mississippi will case, decided in 1840, insanity as devel- oped by paralysis was at issue. Twelve witnesses, many of whom had been acquainted with the condition of the testa- tor's mind from March, when he was afflicted with a paralytic attack, up to the day previous to the execution of his will in December, testified to his insanity, and stated the health and conduct of the testator upon which they based their opinions ; namely, palsy in the right side, leg, and face ; a fondness for relating old anecdotes and scenes ; forgetfulness of recent events ; miscalling the names of men and things ; disconnec- tion of ideas in conversation, and frequent transitions from one subject to another ; the giving contradictory orders and shortly denying having given them ; impediment in speech and irritability of temper, and incompetency to transact business. Four of these witnesses were physicians, three of whom had attended the testator from time to time, and ex- pressed the opinion that from the character of the deceased, the testator could not have had a lucid interval. Five wit- nesses, on the other hand, the draftsman of the will, and the 1 See Jamison's Will, 3 Houst. 108, » Irish v. Newell, 62 111. 196. and other cases cited in Hall v. Dough- * Blake v. Rourke, 74 Iowa, 519. , erty, 5 Houst. 435. * See i Con. (N. Y.) 373. 117 § Il8 LAW OF WILLS. [PART IL subscribing witnesses to it, declared their opinions to be that the testator was of sound and disposing mind when he exe- cuted the will. He had walked the distance of a mile on that very morning. Some of these latter witnesses, who had seen the testator some time previously, testified that an im- provement in his health and mind had been going on. It was in proof that he conversed rationally and sensibly for four hours, on the day the will was executed, without making an irrational remark ; gave directions about his business ; dic- tated the will ; had it read to him, and portions of it twice ; conversed of early scenes ; did not miscall names nor talk incoherently, but conversed intelligently and rationally about his own business, the monetary system of the country, and other subjects. It was the opinion of all these witnesses that he was entirely competent on that occasion, to transact any of his own business, including the business in question. He spoke of an improvement in his health and of its having been thought that he was insane ; expressed gratification at seeing so many of his old friends on that occasion ; said he was about to arrange his business and wished them to converse with him and see if he were not of sound mind and compe- tent. Weighing all this evidence carefully, the judge of probate held that the testator was of sound and disposing mind, and admitted the will accordingly ; and upon appeal, this judgment was sustained.* § Il8. The Same Subject: Other Illustrations: Epilepsy, Apoplexy, etc. — It is quite recently held in Illinois, that proof of periodical epileptic attacks, attended with convul- sions, loss of consciousness and the other usual sequences of such attacks, or proof of temporary pneumonia supervening the attack with fever and delirium, is not such proof of insanity as to create a presumption of its continuance until rebutted by proof.^ Epileptic fits are often, perhaps usually, very sudden, and 1 Brock V. Luckett, 4 How. (Miss.) 2 Brown v. Riggin, 94 111. 560 (1880). 4S9- And see Godden v. Burke, 35 La. Ann. 160. 118 CHAP. VI.] LUNACY AND MENTAL DERANGEMENT. §119 in the earlier stages of the malady more especially, one may retain his faculties to the very moment of the attack. Upon all the evidence, therefore, a will was lately sustained in Wis- consin where the person having had an epileptic fit one day, sent for a priest the next, and in a few minutes after execut- ing the instrument intelligently was seized with another fit, and died a day or two afterwards.^ § 119. Mental Condition nearly Contemporaneous 'with the Will, etc. — Where one's mental condition appeared to. his medical attendant suitable for the testamentary act, or the reverse, shortly before or after the will was made, testimony to this purport should carry great weight.^ But after all, the real point at issue upon which such testimony bears, is the mental condition, the state of surrounding circumstances, at the precise time of the testamentary act.* 1 Lewis's Will, 51 Wis. loi (1880). This was certainly a very close case; as there was reason for believing that the decedent was in a semi-comatose and nearly unconscious state when the will was signed; but it was drawn up, at least, under his direction. In a New York case (1879), Parker, Surrogate, admitted a will and codicils to probate under the following circum- stances. At the execution of the last codicil (the only testamentary instru- ment in dispute) the testator had for about six weeks suffered from an apo- plectic stroke resulting in paralysis. When first attacked, he was uncon- scious, but he r?ipidly improved in mind and body, so that his physician ceased to attend him, and, though he never regained the power of speech or his former mental vigor, he became able to read, and did read, the daily paper, often calling attention to items which inter- ested him. He also read the Bible much, received visits, shook the hands of visitors, understood conversation, and manifested an interest in his pecuniary affairs; in short, he was able to com- II prehend the extent of his property, the number of his children and their rela- tions to him, and had sufficient mind to understand the ordinary business trans- actions of life. Legg v. Myer, 5 Redf. 628. See further, Foot v. Stantop, i Deane, 19, an extreme case, where the will of a person subject to epileptic fits was admitted to probate. In Andrews, Re, 33 N. J. Eq. 514, the will of a woman made in the later stages of pulmonary consumption was sustained against ex- pert testimony tending to show that medicines such as she used would affect the brain. "Dyer v. Dyer, 87 Ind. 13. Espe- cially would this hold true of an attend- ing physician between whose regular visits, not being daily, the will was made and executed. Gombault v. Public Admr., 4 Bradf. 226. • Harden v. Hays, 9 Penn. St. 151 ; Gangwere's Estate, 14 Penn. St. 417; 16 Oreg. 127. And see the discrimi- nation exercised by the count in this respect in Brock v. Luckett, 4 How. (Miss.) 459, as stated j«/;-a, § 117. 9 § 120 LAW OF WILLS. [PART IL § 1 20. Suicide not Conclusive of Insanity. — Suicide com- mitted by tlie testator soon after making the will is not con- clusive evidence, therefore, of insanity at the time when the will was made ; though as a fact in connection with other proof fi-om which prior mental derangement might be inferred to the extent of incapacity, it should not be ignored.^ In a leading case under this head, the testator actually committed suicide on the morning after the day on which he made his will ; and yet the will was admitted to probate.^ Suicide is by no means the act of a person necessarily insane ; but the murder of one's self, like the murder of another, may proceed from a sane and deliberate purpose ; hence the chief value of this proof consists in the corroboration it affords in a given case, when taken with other facts and symptoms, to the theory of mental soundness or unsoundness at the date of executing the will.^ 1 Taylor. Med. Jur. 680, 681; I Redf. A testator showed unjust suspicions Wills, 116; Burrows v. Burrows, I of his wife and children amounting to Hagg. 109; Duffield v. Morris, 2 Har- an insane delusion, about the time he ring. 375 ; Chambers v. Queen's Proc- made his will and affecting his dispo- tor, 2 Curt. 415; Godden w. Burke, 35 sition of property. These suspicions La. Ann. 160; 8 N. Y. S. 297. finally culminated in his killing his * Chambers v. Queen's Proctor, supra, wife and inflicting mortal injuries on The facts were similar in Duffield v. himself. The will was denied probate. Morris, supra. Kahn's Will, i Con. (N. Y.) 510. Sui- ' A suicide's will is entitled to pro- cide is evidence tending to showinsan- bate, notwithstanding the old law of for- ity. Frary v. Gusha, 59 Vt. 257. feiture. Bailey, Goods of, 2 S. &T. 156. 120 CHAP. VII.] DELIRIUM, DRUNKENNESS, ETC. § 121 CHAPTER VII. DELIRIUM, DRUNKENNESS, AND DEMENTIA. § 121. Delirium of Disease and its Symptoms. — What we call delirium, or the delirium of disease, is a form of mental aberration incident to fevers and sometimes to the last stages of chronic diseases. It is mostly of a subjective character, maintained by the inward activity of the mind rather than by outward impressions. But it resembles general mania or ordinary insanity so closely that the patient will often be removed to an insane asylum for treatment ; and, indeed, the mental perversion which results is so nearly identical, in the two cases, that we can do little more than ascribe the delirium of disease to the march of a bodily disorder which storms the brain, and trust that as the fever subsides and health returns, the scattered senses will rally, as after a tempest, and reason reassume her supremacy. This febrile delirium comes on gradually, as medical ex- perts have noticed, being first manifested by talking while asleep and by a momentary forgetfulness of persons and things on waking. Fully aroused, the mind becomes calm and tranquil, and only as he becomes drowsy does the patient retire within himself again to encounter the wild troop of fantastical images which fatigue instead of resting the dis- ordered brain. Gradually the mental disturbance becomes more intense, the intervals of consciousness diminish and then disappear, and those at the bedside may fathom to some extent from his raving, incoherent talk what apparitions his mind is contending with. The scenes and events of the past are vividly pictured ; nor is it unusual at this stage for the sick to recall some lost acquirement or talk in some forgotten language. As one returns to health and consciousness, how- ever, scenes and sensations like these, on the whole painful and exhausting, fade in vividness, the tumult of the imagina- 121 § 122 LAW OF WILLS. [pART II. tion subsides, sleep is more quiet and refreshing, the judg- ment works out of the bewildering fancies; and as conva- lescence advances, the patient remembers but vaguely the stormy scene through which he has passed.^ Such is the usual course of febrile delirium ; but the symp- toms may detach themselves, so to speak, from the bodily disorder, and assume a chronic or permanent form ; in which event the delirium passes into the darker phase of maniacal delirium and by a fixed disarrangement of the mental con- ceptions produces insanity, that painful, habitual state of incapacity, whose legal consequences are elsewhere discussed. To the delirium of disease commonly succeeds a stupor, where the disease is to end fatally ; but often will the mind recover a calm and quiet condition for a considerable space before death.^ § 122. Delirium Incapacitates ; Effect of Lucid Intervals. — It stands to reason that the will of a person, made while he is delirious and quite out of his mind, is null if not a legal absurdity. But wills are often made in the last illness of such sufferers and during the period when one throws off his feverish delirium like a person waking from a nightmare. Where the patient is convalescent, or even in the earlier stages of a febrile disease which after much fluctuation ends fatally, the mind may no doubt be quite clear in the intervals 1 Ray Med. Jur. 364; i Wharton & or obscene words which may have es- Still6 Med. Jur. 3d Ed. § 702 et seq. caped him during the delirium. The 2 I Redf. Wills, 92; Ray Med. Jur. patient, on the contrary, in whom the 346; I Wharton & Stille Med. Jur. § insanity is confirmed, will not admit 703. In I Wharton & Stille the distinc- that he was delirious. He sustains the tive symptoms are traced out, at some errors of his imagination and takes them length, as between febrile and insane for realities. The hallucinations and delirium. " In ordinary diseases the delusions of all sorts which he has felt, sick person attaches himself with happi- and which still beset him, fortify him in ness to everything that tends to recall his madness. Still more, in this he him to existence. He hears with emo- systematizes his delirium, and whatever tion of the different stages of his dis- intellectual energy is left is employed ease, and of the delirium which was its by him in establishing, upon the basis consequence; he speaks often of its of a desperate logic, motives for the causes, deplores its effects, and makes new existence which he is just com- innumerable excuses for any malignant mencing." I Wharton & StilU, § 703 122 CHAP. VII.] DELIRIUM, DRUNKENNESS, ETC. § 123 of Strange dreaminess and rhapsody. The courts distinguish, therefore, where delirium only is set up in opposition to a will presented for probate, and the case of fixed mental derange- ment or habitual insanity. Delirium, Sir John Nicholl, an eminent authority in probate law, has observed, is a fluctuat- ing state of mind created by temporary excitement, in the absence of which, to be ascertained by the patient's appear- ance, the patient is most commonly really sane. Hence, as also, indeed, from their greater presumed frequency in most instances of delirium, the probabilities, a prion, in favor of lucid intervals are infinitely stronger in a case of delirium than in one of permanent proper insanity ; and the difficulty of proving a lucid interval is less, in the same exact propor- tion, in the former, than it is in the latter case, and has always been so held in the English courts of probate.^ There • are American decisions which support the same conclusion ; ^ for delirium caused by a fever is most commonly temporary in its character, like the fever itself. § 123. The Same Subject. — But while delirium has usually the temporary character thus noticed, it sometimes, by changes almost imperceptible, passes, as we have seen, into the fixed type of mental derangement. And the testamen- tary transaction may still invite a careful inspection of all the attendant circumstances where the testator never wholly recovered from sickness, so as to manifest his approval of the instrument executed by the very aot of keeping it intact among his papers after resuming an active contact with affairs, but, on the contrary, grew gradually worse and died. 1 Sir John Nicholl, in Brogden v. is in his visible raving fits. But the Brown, 2 Add. 445. "In cases of per- apparently rational intervals of persons manent proper insanity, the proof of a merely delirious for the most part are lucid interval is matter of extreme diffi- really such." lb. See also Dimes v. culty, as the court has often had occa- Dimes, 10 Moore P. C. 422, 426, per sion to observe, and for this, among Dr. Lushington; supra, § 109. other reasons, namely, that the patient 2 staples v. Wellington, 58 Me. 453, so affected is not unfrequently rational 459; Hix v. Whittemore, 4 Met. 545, to all outward appearance, without any 14,6, per Dewey, J.; Gombault v. Public real abatement of his malady; so that, Admr., 4 Bradf. 226, 239; Clark v. in truth and substance, he is just as Ellis, 9 Or, 128, insane, in bis apparently rational, as he 123 § 124 LAW OF WILLS. [PART II. Here and at the threshold of death occurs a period when, the mental condition becomes fitful and untrustworthy. The patient might be calm and answer questions with the same sort of relevancy, while a close examination would reveal, notwithstanding, a drowsy and dreamy condition of the mind, quite unfit for grappling with the relations of persons and things so as to perform with due consciousness the testa- mentary act. Here, as elsewhere, the standard of testamentary capacity should be applied, and this inquiry solve the doubt : namely, whether the patient, besides exercising his own volition, has sufficient intelligence to comprehend the condition of his property, his relations to those who are or naturally might be the objects of his bounty and to understand the provisions of the instrument.^ § 124. Delirium Tremens, and Drunkenness or Intoxication in General. — Delirium tremens is a form of mental disorder inci- dent to habits of intemperance, whose symptoms are generally indicated by a slight tremor and faltering of the hands and limbs, restless anxiety, disturbed sleep, and a loss of appetite. As in the case of fever, uneasy slumber begets painful dreams, which pass with rarer intervals into an exhausting delirium. Refreshing sleep, aided by good medical treatment, may oper- ate a cure, but the disease sometimes ends fatally. A more positive mental derangement is found to occur not unfre- quently in connection with intemperate habits ; thus, hard drinking may produce a paroxysm of maniacal excitement or a host of hallucinations and delusions ; but most commonly, after a few days' abstinence, the ordinary mental condition, though feeble, perhaps, will ensue. In the lighter stages of intoxication, however, drink or some drug like opium will pro- duce a condition of lethargy or excitenient, as the case may be, which, variable by turns or temperament, steals away the faculties for the time being, and yet leaves it of ten very doubt- ful whether or not a sound and conscious mind still operated behind the mask of folly. 1 Supra, § 68. 124 PHAP. VII.] DELIRIUM, DRUNKENNESS, ETC. § 125 While such delirium or derangement lasts, discretion is overwhelmed in a temporary madness, and no testamentary disposition committed under its influence can avail ; provided, of course, that one's mental condition fails under the tests which apply to other delirium and other forms of insanity. The real difficulty is found where the less positive disorder of the faculties, which results from mere intoxication, has to be considered in this connection.^ For the incapacity produced by drink is more strictly temporary than the delirium of dis- ease, and when the fit is off, reason acts as before.^ § 125. The Same Subject: Drunken Habits may impair the Reason. — Aside from the raging delirium of which we have spoken, and which is found so often temporary, a long-con- tinued habit of inordinate indulgence in the use of stimulants may, in certain temperaments, produce another sort of insan- ity. The mind becomes gradually impaired, the memory fails, and the drunkard sinks into that sottish condition where his faculties are stupefied, and he may be pronounced utterly incapable of managing his own affairs.' Victims of intemper- ance like these are, under some of our local statutes, subject to guardianship, where their estates might otherwise be squan- dered ; for were it otherwise, testament or no testament would 1 Taylor Med. Jur. 656; I Whart. & as affected by drunkenness. " He that Stille, §§ 201, 639; Ray Med. Jur. 438. is overcome by drink, during the time Drunkenness and delirium tremens are of his drunkenness is compared to a more commonly considered as affecting madman, and therefore, if he make his responsibility for crime. In general, testament at that time, it is void in law, insanity which is produced by delirium which is to be understood, when he is tremens affects civil responsibility in so excessively drunk that he is utterly the same way as insanity produced by deprived of the use of reason and un- any other cause; though here it is derstanding; otherwise, if he be no, observable more positively than else- clean spent, albeit his understanding ■where, that the insanity was brought on is obscured and his memory troubled, by the person's own misconduct — a yet he may make his testament, being consideration which, in fact, appears to in that case." Swinb. pt. 2, § 6. affect the rule of legal responsibility as ^ I Redf. Wills, 163; Ayrey v. Hill, defined in cases of crime committed 2 Add. 206. Insanity, it is said, is during mere intoxication. See Whar- often latent, but ebriety never. lb. ton & Stille, supra; 5 Mason, 28; I » Starret v. Douglas, 2 Yeates, 48; Curt. C. C. I. Duffield v. Morris, z Harring. 375, 383. Swinburne thus discriminates upon And see McSorley v. McSorley, 2 the subject of testamentary incapacity Bradf. 188. 125 § 126 LAW OF WILLS. [PART II. be of little consequence. Sometimes, but not invariably, a permanent, fixed, and incurable insanity is developed by the drunken habit, especially if other causes predispose the mind in that direction.^ But ordinarily this is not so when other predisposing causes are absent, for the mind of the most confirmed inebriate is generally capable of transacting common business in its sober moments. § 1 26. ■When Intoxication invalidates a 'Will, and the Reverse. — The fact that the testator was intoxicated, or under the influence of some drink or drug at the time he made his will, does not of itself avoid the disposition, if the intoxication or stimulus does not prevent him from comprehending intelli- gently what he is doing.^ Nor is habitual drunkenness or the frequent and injurious use of ardent spirits or drugs of itself sufficient to invalidate a will, even though the person so addicted may have acted like a madman while intoxicated.^ For the state of mind at the time of executing the will in question is the material issue ; and if the testator be then in a condition to understand what he is about, his capacity is presumed.* On the other hand, the wills of those far gone in intem- perate habits should be watchfully regarded ; for such per- sons are even more liable to imposition in transactions of this kind than to dispose irrationally without dictation. If the mind is not clouded simply, but actually deprived of reason ^ A will made by a habitual drunk- way, 7 Baxt. 575; 57 Cal. 274; 4 Dem. ard while subject to a committee or 501 ; Frost v. Wheeler, 43 N. J. Eq. guardian is not for that reason void; 573; 127 Penn. St. 269; 45 N. J. Eq. but, at most, there is only prima facie 702. That the testator had delirium evidence of incapacity afforded by the tremens was an element in proof of appointment of a committee or guar- incapacity in Edge v. Edge, 38 N. J. dian; nor dbes the record always fur- Eq. 211. But delirium tremens may nish even prima facie evidence. Lewis pass off and leave the person sane and V. Jones, 50 Barb. 645; 57 Cal. 529; sensible, so that his will, if madewith- Leckey v. Cunningham, 56 Penn. St. out undue influence, should operate. 370. And see supra, § 81. Handley v. Stacey, i F. & F. 574. ^ Peck V. Cary, 27 N. Y. 9; Gardner ' Hight v. Wilson, i Dall. 94; Tem- V. Gardner, 22 Wend. 526; Pierce v. pie v. Temple, i H. & M. 476. Pierce, 38 Mich. 412; Andress v. Wei- * Peck v. Cary, 27 N. Y. 9; Pierce ler, 2 Green Ch. 604; Kay v. Hollo- v. Pierce, 38 Mich. 412. 126 CHAP. VII. J DELIRIUM, DRUNKENNESS, ETC. § 12/ or volition, if, in other words, whether by delirium or besotted faculties, or from any other cause the person at the time of executing the will is mentally incapacitated, according to the usual tests, his will is not a valid one.^ What is here said of . intoxication or drunkenness, applies not only to the use of spirituous liquors, but to the opium or morphine habit.^ § 127. Burden of Proof, etc., vrhere Drunkenness is alleged. — Where drunkenness is relied upon as establishing incapacity, — not habitual and fixed insanity, but, at the most, habitual intoxication, — the burden of proving its existence at the time of executing the will rests upon the contestants.^ Habitual drunkenness cannot alone in proof overthrow a will. Nor is the effect of drunkenness on the testator's capacity in such a contest a question for experts, or depend- ent upon proof of subsequent acts and conduct, but it de- pends on common observation and the facts of the particular case at and about the time of the transaction.* All that need appear, therefore, in order to sustain the will, is the absence of intoxication, at the time of making it, in any such degree as would, by the usual tests, vitiate the disposition.^ If the testator was at the time capable of knowing what he was about, it is to be presumed that he did know, and that the disposition was his voluntary and intelli- gent act. Where one's indulgence has produced habitual and fixed derangement of the reason, proof of a lucid interval or a return to the sane condition would, under the general rule, be needful ; but otherwise, the law infers readily, in the absence of evidence to the contrary, that, though intoxicated 1 Gardner v. Gardner, 22 Wend. 526; Wheeler, 43 N. J. Eq. 573. But the Duffield V. Morris, 2 Hajrring. 375; court justified a contest of the will where Temple v. Temple, i H. & M. 476; such habits existed and ordered the Barrett v. Buxton, 2 Aiken, 167; Julke costs of litigation paid from the estate. V. Adam, i Redf. 454. lb. As to morphine, see further. Bush 2 The will of a testatrix was sustained v. Lisle (Ky.). in >i recent case notwithstanding she " Andress v. Weller, 2 Green Ch. 604, was shown to have been addicted to 608; Lee z-. Case, 46 N. J. Eq. 193. the use of morphine; it appearing that * Pierce v. Pierce, 38 Mich. 412; when not under the influence of mor- Gibson v. Gibson, 24 Mo. 227. phine her mind was clear and that she " See Ayrey v. Hill, 2 Add. 206; § 126. made her will accordingly. Frost v. 127 § 129 LAW O^ WILLS. [part II. sometimes to madness, he was in his right mind when he made his last testament.-' § 128. The Rule of Testamentary Capacity in Drunkenness Ulustrated. — How strongly our courts incline in these times to sustain a just and natural will, even where the testator is admitted to be a confirmed drunkard, is illustrated by some of the latest cases. In New York the will of a man notori- ously intemperate was, in 1863, adjudged by the court of appeals admissible to probate, though executed after a pro- tracted debauch of five days. The proof showed that he had at the time of execution recovered from the immediate effects of the debauch, speaking of it as a matter of the past, though continuing to drink in the course of the same day, while pre- paring to take a voyage, which was the occasion of his will ; and no extravagance or insane conduct contemporaneous with the will was shown. ^ In this case, we may add, the court laid much stress upon the obvious circumstance that there was nothing unnatural or unreasonable in the will itself ; that it was properly exe- cuted ; and that the persons who were present at the very time of the testamentary act — one of whom was, from pre- vious knowledge and present observation, an eminently com- petent witness — saw nothing in the testator indicating a want of ordinary intelligence or entire sanity.^ § 1 29. Dementia as distinguished from Mania or Delirium. — To speak now of dementia, or that form of insanity which is marked by mental feebleness and decrepitude, so that reason flickers low in the socket and then dies out. Between idiocy and dementia the analogy is strong ; nor is the word " imbe- cility " unfrequently applied in the present connection with- out taking in congenital defect as a necessary element. Whether we speak of imbecility in this broad sense, or use 1 Ayrey v. Hill, 2 Add. 206; Card- 2 pgck v. Gary, 27 N. Y. 9. Cf. ner a. Gardner, 22 Wend. 526; Peck McSorley v. McSorley, 2 Bradf. 188. V. Gary, 27 N. Y. 9. » 27 N. Y. 24. And see Stebbins v. Gontradictory testimony on such Hart, 4 Dem. 501. points may properly be left to a jury. Best I/. Best (Ky.). 128 CHAP. VII.] SENILE DEMENTIA. § 130 the more technical term "dementia," we subordinate the idea of impediments, which birth or infancy may have op- posed to one's normal development, and view mainly the breaking down of the natural faculties, gradual and insensible, usually, but sometimes rapid and sudden. But from idiocy, whose proper type is always the abnormal from birth, dementia is well distinguished ; ^ their resemblance consist- ing in this, — that in extreme cases, no ray of human intelli- gence is visible, but all is darkness. Dementia, we distinguish from general mania or delirium, in that depression of the mental powers produces the former condition, but exaltation, the latter. In mania, force, hurry, and intensity mark the action of the mind ; in dementia, slowness and weakness ; ^ nevertheless, dementia appears often to be a sequel of mania, by a sort of relapse and exhaus- tion of nervous influence ; and many regard it as the natural termination of insanity, a final period rather than a true form of mental unsoundness, — in a word, the tomb of reason.^ § 130. Senile Dementia, or the Mental Decay of the Aged: Iiitigation on this Ground. — Dementia is sometimes found in 1 Supra, u. 5. acterized by hurry and confusion; in 2 I Wharton & StillS Med. Jur. § 698. the latter, by extreme slowness and fre- ' I Wharton v. Still6, § 700, citing quent apparent suspension of the think- M. Falret. ing process. In the former, the habits "The reasoning of the maniac," and aifections undergo a great change, observes Dr. Ray, " does not so much becoming strange and inconsistent /rom fail in the force and logic of its argu- the beginning, and the persons and ments, as in the incorrectness of its things that once pleased and interested, assumptions; but in dementia the at- viewed with indifference or aversion, tempt to reason is prevented by the In the latter, the moral habits and natu- paucity of ideas, and that feebleness of ral feelings, so far as they are mani- the perceptive powers, in consequence fested at all, lose none of their ordinary' of which they do not faithfully rep- character. The temper may be more irri- resent the impressions received from table, but the moral disposition evinces without. In mania when the reason none of that perversity which character- fails, it is because new ideas have izes mania. In dementia, the mind is crowded into the mind and are mingled susceptible of only feeble and transi- up and confounded with the past; in tory impressions, and manifests little dementia, the same effect is produced reflection even upon these. They come by an obliteration of past impressions and go without leaving any trace of as soon as they are made, from want of their presence behind them." Ray, sufficient power to retain them. In the Insanity, 292. former, the mental operations are char- 129 § I30 LAW OF WILLS. [PART IL the young as a form of insanity not incurable ; but its most common type occurs in old persons, whose mental powers begin to break down in advance of the physical. This mental decay of the aged is known as senile dementia; and it is upon the allegation of insanity of this kind that wills are most often contested ; or rather, we should say, upon the ground that the testator, while thus weakening in intellect and volition, was, if not absolutely incompetent, unduly con- strained and influenced, at all events, to make the testament which others framed for their own ends. This form of dementia similarly invites litigation and doubt : for, unlike the dementia of the young, which is too patent to admit of question, senile dementia differs greatly both in the process and progress of decay. Medical observers tell us that it cannot be described by any positive characters ; that in its gradual advance to utter incompetency it embraces a wide range of infirmity, varying from simple lapse of mem- ory to complete inability to recognize persons or things ; that often the mental infirmity of the aged is by no means as serious as might be supposed at first sight, and that, to use a figure of speech, the mind may be superficially rotted while it is sound at the core. Most of us have known some person heavily weighted with years and infirmity, who seemed scarcely conscious of what was passing around him ; who was quite oblivious of names and dates, and committed childish breaches of decorum before our guests ; and yet, when spurred up on occasion, when encountering some object which aroused a deep interest, or, what is most pertinent to our subject, when touched upon the affairs of money, investments, and the family relation, showed a clear, acute, and vigorous com- prehension. Younger members of the household watch for signs of mental failure in persons like these, and confess that often the signs deceive them. And once more, senile dementia, where the mind has surely tottered, blends so often the consequences of imprudent habits, of physical dis- orders seated in the system, of indulgence in drink, of some peculiar bias of character or temperament, of delusions or other predisposition to insanity, with those of natural decay 130 CHAP. VII.] SENILE DEMENTIA. § 1 32 in old age, that a confused array of proofs is offered by those who would break down the testament, so-called, of the super- annuated.^ § 131. The Same Subject : when the Mind begins to decay. — Persons differ greatly both in mental and physical resources after passing the meridian of life; some declining rapidly, others by degrees almost imperceptible. In one the intel- lectual functions operate with healthy precision far into the vale of years, the power of volition dominating over the ills of the flesh ; in another the loss of mental power and energy seems to precede the loss of physical strength ; but probably in a majority of cases, both mind and body begin to fail together soon after the prime of life is reached. We detect more easily when the bodily vigor and elasticity of mature life show signs of departure than we do the approach of mental feebleness ; in the former respect an old person admits his lapse, while he persistently deceives himself and others in the latter; moreover, as Judge Redfield has well observed by way of comparison, our uncertainty in estimating the powers of the mind is the greater, since the increase of experience and knowledge which time produces at all stages of advancing life compensates for the decline of the mental faculties and powers.^ Judges, clergymen, and literary writ- ers, whose minds have been constantly trained and disciplined, and their circumstances such that brain work may proceed without worry, retain in many instances the capacity for intellectual labor, of the reasoning rather than imaginative sort, to a ripe old age. § 132. The Same Subject: Iiosa of Memory One of the First Symptoms of Mental Secay. — One of the first as well as of 1 The late Chief- Justice Redfield, in cases, or which has so important a bear- his valuable treatise on wills, evidently ing upon, or the thorough comprehen- considers the imbecility of old age, or sion of which is so much to be desired, senile dementia, as the most difficult as an aid toward the correct understand- and important subject connected with ing of such cases, as that of the imbe- testamentary capacity. " There is prob- cility of old age, or senile dementia." ably no form of mental imsoundness," I Redf Wills, 94. he says, " which has to be considered ^ I Redf. Wills, 95. so often in connection with testamentary § 134 LAW OF WILLS. [part II. the surest symptoms of mental decay is the loss of memory ; and especially in respect of names and dates ; yet, oblivious as an old person might appear in such matters, his mental grasp of the relations he sustains to others and of his own interests and affairs, his capacity and solid understanding, may still remain firm.^ At the same time it is admitted that the faculty of remembering, like capacity itself, lasts much longer in some persons than in others. This failure of memory is not enough to create testamen- tary incapacity, aside from fraud, force, and error, unless it extends so far as to be inconsistent with the " sound and dis- posing mind and memory " requisite for all wills ; or, in other words, unless the mind is incapable of grasping the details of testamentary disposition, and the memory is defective in essentials;^ § 133. The Same Subject: Casual Observers Untrustworthy as compared with those Familiar with the Testator. — It follows from what we have thus briefly observed of senile dementia in its general aspect, that the impressions of mental condi- tion made upon casual or ignorant observers are untrust- worthy and of very little consequence in such cases as com- pared with those of persons who have been well acquainted with the habits and character of the individual, and have often had occasion to test the vigor of his faculties. The impressions, for instance, which constant medical advisers have derived, intelligent nurses, familiar visitors and friends of the family, and, allowing for the bias of personal interest, the family and immediate kindred themselves. § 134. Senile Dementia disqualifies One from making a 'Will but not Old Age Alone. — Senile dementia, as one form or development of insanity, disqualifies a person from making a 1 Kinleside v. Harrison, 2 Phillim. interest, nor the dates of events which 449, 457; Van Alst v. Hunter, 5 Johns, concerned him little; but whether, in Ch. 148, 158; I Redf.Wills, 95. To quote conversations about his affairs, his friends from Dr. Ray, an eminent authority and relatives, he evinced sufficient knowl- upon insane symptoms : " The great edge of both, to be able to dispose of point to be determined is, not whether the former with a sound and untram- he was apt to forget the names of melled judgment." Ray Med. Jur. 336. people in whom he felt no particular * See Bleecker v. Lynch, i Bradf. 458; 132 CHAP. Vil.] SENILE DEMENTIA. § 1 34 will ; but old age alone does not.^ The law places an arbi- trary limit, so that those not arrived at a certain age are con- clusively incapable of the testamentary act ; but no such limit confronts the other extreme of human life. For a man (as Swinburne has expressed • it) may freely make his testa- ment, how old soever he be ; since it is not the integrity of the body, but of the mind, that is requisite in testaments. Yet (he adds) if a man in his old age becomes a very child again in his understanding, or rather in the want thereof, or by reason of extreme old age, or other infirmity, is become so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, or a child, or lunatic person.^ By which statement we are not to under- stand that the minor child and the superannuated child are measured in legal capacity by the same simple standard of arithmetical reckoning; nor that the conclusive test of infirmity in old age must depend necessarily upon the tes- tator's recollection of one name or another. The learned Chancellor Kent, who, as a professional in- structor and author of the famous Commentaries on American Law after his enforced retirement from the bench at the age of threescore, furnishes a conspicuous example to posterity of the error legislation is sure to commit whenever it under- takes to assign an absolute limit to mental capacity for affairs and usefulness in the public service, not to add as a private citizen, made some fitting observations concerning the wills of old persons in a case which once came before him for deci- sion. Regarding it as a fortunate circumstance for them- selves that the aged have the power to dispose of their own property, "it is," he says, "one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to com- mand the attentions due to his infirmities." * 1 Swimb. pt. 2, § 5, pi. l; Bird v. » Swimb. pt. 2, § 5, pi. I. Bird, 2 Hagg. 142; Van Alst j/. Hunter, ' Van Alst v. Hunter, 5 Johns. Ch. 5 Johns. Cb. 148; cases in sections 148, 158. infra. § 136 LAW OF WILLS. [PART 11. § 135. WiUs of the Aged should be tenderly regarded. — " The will of such an aged man," adds the Chancellor in this same opinion, " ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dic- tated." 1 We may contrast the delicate feeling shown to the feeble in language like this, with the harsh and grating tone of early text-writers like Swinburne, when they touch upon testamentary incapacity as produced by mental unsoundness.^ But Chancellor Kent himself, it is here perceived, does not contend that an old person's will should receive tender con- sideration when unfairly extorted by others, or unjust and unnatural in its disposition of the estate.^ § 136. The Same Subject. — Other American decisions pro- ceed upon the same view of old age in its effect upon testa- mentary capacity. "Great age alone," observes Surrogate Bradford, in the course of a long and carefully considered opinion, " does not constitute testamentary disqualification ; but, on the contrary, it calls for protection and aid to further its wishes, when a mind capable of acting rationally, and a memory sufficient in essentials are shown to have existed, and the last will is in consonance with definite and long-set' tied intentions, is not unreasonable in its provisions, and has been executed with fairness."* "There is no presumption against a will," says Andrew, J., reiterating the New York rule on this subject, " because made by a man of advanced age, nor can incapacity be inferred from an enfeebled condi- tion of mind or body. Such a rule would be dangerous in the extreme, and the law wisely sustains testamentary dis- positions made by persons of impaired mental and bodily powers, provided the will is the* free act of the testator, and he has sufficient intelligence to comprehend the condition of 1 Van Alst v. Hunter, 5 Johns. Ch. * Maverick v. Reynolds, 2 Bradf. 360. 148. And see Bleecker v. Lynch, I Bradf. = Swimb. pt. 2, § s, pi. I, supra. 458; Snyder v. Sherman, 23 Hun. 139. ' See supra, § 77. CHAP. VII.] SENILE DEMENTIA. § 1 37 his property, and the scope, meaning, and effect of the pro- visions of the will." ^ Eminent English authority is to the same effect. "The law," observes Sir John Nicholl, " allows a person at any age to make a will, provided he retains the disposing faculties of his mind ; " and he adds, that age is an uncertain criterion of mental powers.^ And Chief-Justice Cockburn approves in a late English case the idea that though mental power be reduced in old persons below the ordinary standard, yet if the testamentary act is understood and appreciated in its differ- ent bearings, if the mental faculties retain sufficient strength freely to comprehend the transaction entered upon, the power to make a will remains.^ § 137. Instemcea in -which Wills of the Aged have been sus- tained. — Instances from the reports will serve to illustrate the principle we are considering. In a leading English case. Sir John Nicholl in.i8i8 admitted to probate the will and codicils of a man who had executed the latter instruments when from eighty-six to eighty-eight years old, and died at about ninety ; and this notwithstanding proof that the testa- tor had sometimes been non compos from violent nervous attacks while at this advanced stage of life.* In Chancellor Kent's opinion, which we have quoted, the will upheld was made by a person between ninety and one hundred years old.^ In a New Jersey case a will was sustained, although the testator was eighty years of age, very deaf, and troubled with defective eyesight when he made it.® In Kentucky, 1 Horn V. Pullman, 72 N. Y. 269, 276 when he executed the will? " Wilson (1878). The Pennsylvania doctrine v. Mitchell, loi Penn. St. 495, 503, confirms the rule advanced on this citing other cases upon testamentary point in New York, and the court capacity. And see 5 Houst. 435. makes reference in a recent case to the '■' Kinleside v. Harrison, 2 Phillim. general test of capacity in those en- 449, 461. feebled by age, sickness, or extreme « Banks w. Goodfellow, L. R. 5 Q. B. distress or debility of body. "To sum 549, 566. And see Bird v. Bird, 2 up the whole in the most simple and Hagg. 142. intelligent form: Were his mind and < Kinleside !<. Harrison, 2 Phillim. 449. memory sufiSciently sound to enable him * Van Alst v. Hunter, 5 Johns. Ch. to know, and to'understand, the business 148. in which he was engaged at the time « Lowe ». Williamson, I Green Ch. § 138 LAW OF WILLS. [part H. another testator of about the same age, was so afflicted with the palsy that he could neither read nor feed himself ; yet his will was adjudged a valid one ;^ and so with a person eighty- six years old in greatly impaired health.^ In one New York case a will was vigorously contested where the testatrix was ninety years old ; but no proof of mental unsoundness appearing, and the will itself appearing not only a reasonable one, but in substantial accordance with one executed by her several years before, and also with her repeatedly declared intentions concerning the disposal of her property, and that when made it was carefully read and explained, the will was established.^ In another case the court of appeals sustained the will of a widower, eighty-three years old, which gave the bulk of his estate to a grandson who had taken good care of the testator during his declining years, and bestowed only five dollars each upon six adult chil- dren, who, though on friendly terms with their father, had seldom visited him in his old age and had declined to let him live with them.* And there is a recent Pennsylvania case where the will of an old man was adjudged good though he was more than a hundred years old when he made it ; blind, partly deaf, and weakening in his memory.^ § 1 38. The Same Subject : Circumstances favoring Probate of the WUI. — In these and other instances of the kind, it will be found that considerations like those adduced in corre- sponding cases where testamentary capacity is litigated, may serve to turn the scales where doubt exists. The will is just and reasonable, or at least not positively the reverse; it regards the natural claims of family and kindred, if there be such ; it was read over and explained, or at least was appar- ently well understood at the time of execution ; it was care- 82. Andsee 32 N. J. Eq. 701; Sharp's 495. And see Wood's Estate, 13 Phila. Appeal, 134 Penn. St. 492. 236; Snyder v. Sherman, 23 Hun. 139; 1 Reed's Will, 2 B. Mon. 79. Vedder Re, 6 Dem. 92; 4 Dem. 501 ' Watson V. Watson, 2 B. Mon. 74. (where the testator was eighty years ' Maverick v. Reynolds, 2 Bradf. 360. old and a hard drinker) ; Silverthorn's And see Bleecker ». Lynch, I Bradf. 458. Will, 68 Wis. 372; 72 Iowa, 515; 1 * Horn V. Pullman, 72 N. Y. 269. Con. (N. Y.) 18, 373. ' * Wilson V. Mitchell, loi Penn. St. 136 CHAP. VII.] SENILE DEMENTIA. § 139 fully executed. Wherever it appears that the testator, while clearly competent, gave instructions for such a will, or other- wise showed by conduct prior or subsequent to the execution, that the disposition in question was such as he and not others deliberately planned, this circumstance should bear very strongly in favor of the probate.^ It matters little that the testator judged harshly of a person, if that person had no natural claims upon the testator's bounty.^ General prudence and good sense in the management of one's own business affairs and consistent affection, are of course strong circum- stances for upholding the wills of the aged. § 1 39. Extreme Old Age suggests Vigilance in Probate ; Men- tal Imbecility vitiates. — But a tender regard for the aged requires not only that their intelligent dispositions should be upheld, but that their unintelligent ones, or wills not really their own, should be set aside. It is said that extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the court ; ^ by which, we presume, is only meant that vigilance ought to be exercised.* Should the probate be contested in a case where no insanity has either existed or been supposed to exist, the inquiry as to capacity 1 See e.g. Maverick v. Reynolds, 2 trix held clearly in mind the names of Bradf. 360. If the aged person has no a great many of her legatees, mentioned near kindred at all, no persons with those omitted when the draft was read natural claims upon him, his bounty over to her by the scrivener, and care- may naturally be directed to other per- fully and intelligently supervised the sons or objects. See Wood's Estate, 13 contents of the instrument before exe- Phila. 236. And it is held that, con- outing it. Merrill v. Rush, 33 N. J. Eq. ceding a testator of eighty-two to be 537. And see 32 N. J Eq. 701. miserly, squalid, dishonest, profane, and ^ Lewis Re, 33 N. J. Eq. 219; Mer- irascible, one who has revoked suddenly rill p. Rush, ib. 537. Harsh conduct, his promises of bounty to others, this as establishing an insane delusion in does not establish testamentary inca- the testator's mind, will be treated in pacity nor disqualify him from giving the next chapter. the bulk of his estate to his executors ' Kinleside v. Harrison, 2 Phillim. in trust to reduce the national debt; 449, 461, per Sir John NichoU. there being no legitimate kindred of * Observe the context, ib. In this his to be disinherited or disappointed, case the will was actually sustained. Lewis Re, 33 N. J. Eq. 219. There is no presumption against a will Forgetfulness on minor matters at the simply because of old age. Horn v. age of eighty-three is of little conse- Pullman, 72 N. Y. 269. quence when it is shown that the testa- 137 § 140 LAW OF WILLS. [PART 11. (aside from undue influence) is simply whether the mental faculties retained sufficient strength to comprehend fully the testamentary act about to be performed. But when lunacy or unsoundness of mind has previously existed, the investi- gation is of a far more searching and thorough sort, for a prejudice at once obstructs the probate.^ There can be no question that mental imbecility, whether arising from old age or any other cause or complication of causes, destroys testa- mentary capacity. And undue influence, especially such as constrains by fear, must be regarded with great disfavor in all instances under the present head.^ § 140. Instances in 'vrhich Wills of the Aged have not been sustained. — Where a will and codicil were executed by a per- son eighty years of age, and neither of the subscribing wit- nesses to the two instruments testified favorably to his mental capacity, but one thought him not of sound mind, the surro- gate refused probate of the instruments, and this decision was affirmed on appeal to the supreme court.^ In Kentucky the alleged will of a man about seventy years, who was con- fined to his bed by an inflammatory disease of a very distress- ing sort, which made him frequently both drowsy and flighty, and died two days later, was refused probate ; and this chiefly, as it would appear, because the will showed gross inequality in its dispositions, and was only made after the teasing impor- tunities of the testator's wife.* In Missouri was set aside an instrument propounded as the will of an old lady about seventy-three years of age who had grown childish and irri- table ; not so much, however, on the ground of incapacity, as because a stranger in blood, who had acquired a strong influence over her, procured the will in his own favor regard- less of her own immediate relations, who were all poor.^ 1 See Prinsep v. Dyce Sombre, 10 that the testator, a few months after Moore P. C. 278. these papers were executed, did not 2 Hartman v. Strickler, 82 Va. 225; know his own children, inquired how 43 N. J. Eq. 154; c. 10, post. many he had, and could only name ' Dumond v. Kiff, 7 Lans. 465. The some of them, report on appeal does not exhibit the * Harrel v. Harrel, i Duv. 203. proof in detail; but an important cir- 6 Harvey v. Sullens, 46 Mo. 147. cumstance unfavorable to capacity was CHAP. Vn.] SENILE DEMENTIA. § I4I And in a New Jersey case, where one made a sudden, unjust, and unaccountable change of disposition, evidence that he was eighty years old, that he had suffered in his mind from sunstroke, that he had had delirium tremens, that he was under a delusion that his wife and son (with whom the will dealt inequitably) were trying to kill him, and that other per- sons were trying to rob him, — all this was held satisfactory proof of his testamentary incapacity.^ Stupor and forgetful- ness of the aged person at the time of execution, are unfavor- able circumstances, especially if sinister agencies are shown to have been active in procuring the testament, and death soon intervened after the instrument was executed.^. § 141. Rule of Capacity for Dementia not Different from that for Mania. — It is thus perceived that the legal principles by which fcourts are governed in testamentary causes differs not essentially, whether the alleged incapacity be produced by mania or dementia. Although the testator was aged and infirm, his will as a rule, may be established, if at the time of making it, he had sufficient intelligence to comprehend the condition of his property and his relations to those who were or might naturally be the objects of his bounty, and to under- stand the provisions of the instrument.^ If the will itself is fair and natural, and especially if it be shown to coincide in terms with the deliberate purpose announced by the maker when in sounder health, if it shows no indications of fraud or undue influence, — if in short it is a rational act rationally performed, it will be upheld as valid, and very properly so, although his mind may have been considerably impaired by the time of its execution. § 142. Opinions as to the Capacity of an Aged Testator carry no Great Weight in Doubtful Cases. — When the testator is far advanced in years, and occasional incapacity is produced by sickness, intemperance, or other cause, so that the case is a 1 Edge V. Edge, 38 N. J. Eq. " See Cockrill v. Cox, 65 Tex. 669; 211. lis 111. II; 80 Va. 293. » Supra, § 68. 139 § 142 LAW OF WILLS. [PART II. complicated one, and the evidence a mass of crude and con- tradictory evidence, but little weight attaches to the mere opinion of witnesses.^ The basis of such opinions is liable to vary exceedingly ; and moreover, as Sir John NichoU has pointed out, differences will arise from the different abilities of the witnesses to form such opinions, from their different opportunities of seeing the person, and from the different state and condition of the testator's mind at different times.^ Especially does this hold true of casual and unskilful ob- servers ; for, as already shown, it is only those well acquainted with the patient and his idiosyncracies, whose impressions at this stage of his life can be trusted.^ I Kinleside v. Hanison, 2 PhiUim. ' Kinleside v. Harrison, 2 Phillim. 449- 449. 457- « Supra, % 133. 140 CHAP. VIIl.j MONOMANIA AND INSANE DELUSIONS. § I43 CHAPTER VIII. MONOMANIA AND INSANE DELUSIONS. § 143. Monomania a Preferable Term to Partial Insanity ; the Miud a Unit. — That type of insanity which remains finally to be considered bears at present the name "monomania." " Partial insanity " was the term formerly applied, by way of distinguishing it from general derangement of the mind ; but the best of modern medical psychologists now repudiate that mode of distinction as artificial, one which leads, moreover, to lax and pernicious theories upon the subject of moral respon- sibility. The individual mind, they teach us, is properly re- garded at all events, as a unit and indivisible ; not with moral and mental functions lodged in separate cells, so that one can be insane in one function but not in another, so that a man might have an insane propensity to kill or steal, for instance, for which he was irresponsible, and yet be sane in other respects ; nor with subdivided cells for various mental faculties, all capable of working apart and independently of one another.^ If this later exposition be the true one, not only "partial insanity," but "moral monomania," with its confusing list of crimes which should be pitied but not punished, falls into dis- repute. Nevertheless, the word "monomania" in an intellec- tual sense, and as applied to testamentary instruments, holds its footing in the courts. Even " partial insanity " might be quite as unobjectionable a term, were it used under like limi- tations.2 1 Wharton & Stilll, Med. Jur. §§ 567- that ' partial insanity ' was unknown to 571. the law. The observation could only 2 In Dew V. Clark, I Add. 279; 3 have arisen from mistaking the sense in Add. 79, Sir John Nicholl, one of the which the court used that term. It was oldest probate judges in English an- not meant that a person could be par- nals, observed as follows on the sub- tially insane and sane at the same mo- ject of partial insanity: "It was said ment of time: to be sane, the mind 141 § 144 LAW OF WILLS. [part II. § 144. Monomania defined; how distinguished from Eccen- tricity ; Insane Delusions. — Monomania, so called, may consist in mental or moral perversion, or in both. It is the former phase which is chiefly presented in cases where the issue of testamentary capacity is involved. We may here define it as insanity only upon some particular subject or class of sub- jects ; and as insanity in general is manifested by delusions, so in the present connection there appears in strictness but a single insane delusion, an insanity upon some particular sub- ject or class of subjects, while in other respects the mind appears to retain its normal powers. Insane delusion is thought to consist essentially in believing that to be true, or to exist, which no man in his senses can admit.^ This very standard of comparison, however, namely. must be perfectly sound; otherwise it is unsound. All that was meant was, that the delusion may exist only on one or more particular subjects. In that sense the very same term is used by no less an authority than Lord Hale, who says: 'There is a partial insanity of mind and a total insanity. The former is either in respect to things {^juoad hoc vel illud insanire — some persons that have a competent use of reason in re- spect of some subjects, are yet under a particular dementia in respect of some particular discourses, subjects, or appli- cations], or else it is partial in respect of degrees; and this is the condition of very many, especially melancholy persons, who, for the most part, dis- cover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason; and this partial insanity seems not to excuse them in the committing of any offence for its matter capital; for, doubtless, most persons that are felons of themselves, and others, are under a degree of par- tial insanity when they commit these offences.' It is very difficult to define the invisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by judge and jury, lest on the one side there be a kind of inhumanity towards the defects of hu- man nature; or, on the other side, too great an indulgence given to great crimes." Cf. Lord Brougham's criticism of the expression " partial insanity," which he says would be better described by the phrase " insanity " or " unsoundness," always existing, though only occasion- ally manifest. Waring v. Waring, 6 Moore P. C. 349. ^ A delusion in medical jurisprudence is "a diseased state of the mind in which persons believe things to exist, which exist only, or to the degree they are conceived of only, in their own imaginations, with the persuasion so fixed and firm that neither evidence nor argument can convince them to the contrary." Bouv. Diet. "Delusion"; Robinson v. Adams, 62 Me. 369, 401. "The correct principle is, that when- ever a person imagines something ex- travagant to exist, which really has no existence whatever, and he is incapable of being reasoned out of his false be- lief, he is in that respect insane; and if his delusion relates to his property, he is then incapable of making a will." Benoist v. Murrin, 58 Mo. 307, 323. It is misleading and inaccurate to use 142 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § I44 the average man in his average range of mind, is far from fixed and positive. Men have been thought under an insane delusion who saw clearly in advance of their age ; and it is not so long since that any one who believed it possible for distant cities to hold converse by means of the electric wire would have been set down by the mass of his fellow-men as a mono- maniac. The world itself is deluded by its own imperfect experience of things, by errors, by superstition, by dreams. A morbid state of mind, a strange perversion on particular subjects, is, nevertheless, to be detected frequently in some individual ; it is a symptom often of general derangement soon to follow ; or, again, it remains fixed as the last discover- able symptom, after some mental disorder of greater scope appears to have passed away. It is generally admitted that the degrees of morbid derange- ment, of so-called monomania, vary very greatly in particular cases ; one person showing great sagacity and mental acute- ness on all subjects out of the range of his peculiar infirmity, while another has well-nigh lost altogether the balance of his faculties. But, while some who are less affected seem to con- ceal their delusion from the world with considerable skill and art, the monomaniac more commonly shows himself quite unconscious that his particular hallucination separates him from the mass of mankind and provokes the comment that he is crazy. This it is, as reputable writers assert, which most distinguishes monomania from eccentricity or any mere odd- ness of opinion ; for the odd or eccentric man admits his pecu- liarity, but persists in his course from choice and in defiance of public sentiment, while one laboring under the insane delusion admits neither error nor singularity on his part, but seems persuaded that he is guided by the most judicious of counsel.^ His insanity puts on the aspect of a sort of super- natural sanity, and by this is most easily detected. Yet, even here, how liable is it to happen that where one pursues some insanity and delusion as convertible insane mind is often too feeble to mani- terms; for there are delusions which fest delusions of any appreciable conse- sane minds have entertained; while quence at all. in that decaying state of the intellect 1 Taylor Med. Jur. 626, 629 ; I Redf- known as dementia, or in imbecility, the Wills, 72. § 145 LAW OF WILLS. [PART IL mistaken fancy, or delusion, but not an insane one, the more he insists that he is rational, the more are others misled to believe that he is out of his mind, and an indignant denial of insanity is taken as proof positive of derangement until a mutual explanation reveals the false premises upon which his course of action was based.^ § 145. The Same Subject: Eccentricity further distinguished. — It is further to be remarked, as between insanity and eccen- tricity, that the latter is traced down as a natural and gradual growth of habits and character in an individual under the peculiar influences which surrounded him. When the will of such a person is opened, no matter how odd its language or how whimsical its provisions, those familiar with the person pronounce it just such a document, nevertheless, as might have been expected from him. But the will of an insane per- son, on the other hand, shows rather a perversion of mind, an alienation of feeling, astonishing, unaccountable, and strangely at variance with his natural character while in sound health. External causes account for eccentric but not for insane behavior. Eccentricity signifies in many cases an insane predisposi- tion ; and where the eccentric habit is suddenly acquired, starting up without a growth, or where one's whole nature seems to have become quickly perverted so as to run back, as it were, in an opposite channel, we may well suspect that insane delusion is at work.^ A person may be eccentric, and so predisposed to insanity as to become decidedly deranged at some periods of life, and yet at other times so remitted to the former state of mere eccentricity as to be pronounced capable of making a will. Such was the case of the testatrix in Mudway v. Crofts, whose will nevertheless Sir Herbert Jenner Fust admitted to probate, upon proof that she was laboring under no delu- sion or derangement when she made it. Her father, it iThe instance of Malvolio in the ^ See i Redf. Wills, 85 ; Taylor Med " Twelfth Night " serves as a ready Jur. 632, 656. illustration in point. 144 CHAP. Vlll.] MONOMANIA AND INSANE DELUSIONS. § I47 appears, died when she was seven years old ; her mother was of secluded and penurious habits, to which she herself was brought up ; but although eccentric in her manners, and ill educated, she was acute in business, conducted her own affairs, managed her own investments, gave intelligent direc- tions to her legal advisers, and showed herself quite tenacious and clear-headed as to her legal rights. Eccentricity, the court observed, involves a greater susceptibility than usual to mental derangement ; but still it is not mere strangeness of conduct or singularity of mind which constitutes the pres- ence of insanity. " It is the prolonged departure, without an 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 disorder of mind." ^ § 146. Insane Delusion has no Basis in Reason ; Reason and Evidence cannot dispel it. — On the whole, the essence of an insane delusion is that it has no basis in reason, and cannot by reason or evidence be dispelled in the slightest. It is thus capable of being cherished side by side with other ideas utterly inconsistent with it.^ The term " delusion " as applied to in- sanity must be distinguished from a mere mistake of fact, or being induced by false evidence to believe that a fact exists which does not exist.^ § 147. Delusions, Sane or Insane, in General. — Delusions of one kind or another are the usual accompaniment of a de- ranged mind ; and courts have sometimes been disposed to test one's general sanity by ascertaining whether he exhibits delusions. But what we call delusions afford a very capricious standard ; and in their legal relations, as concerns testamen- tary capacity. Sir J. P. Wilde (Lord Penzance) in 1867 criti- cised severely the current definitions of English courts on the subject. A delusion is " a belief of facts which no rational person would have believed " ; so spoke Sir John NichoU ; " But who," asks Sir J. P. Wilde, "is a 'rational' person ? And does not the assumption 'rational ' beg the question at issue ? " iMudway v. Croft, 3 Curt, 671, 2 Merrill i/.Rolston, 54 Redf. 220, 251; 678. Florey v. Florey, 24 Ala. 241. 'See § 162, post. 145 § 148 LAW OF WILLS. [PART IL " The belief of things as realities, which exist only in the im- agination of the patient ;" so said Lord Brougham in Waring V. Waring; but do not sane people imagine unrealities ? "A pertinacious adherence to some delusive idea, in opposition to plain evidence of its falsity," said Dr. Willis, as quoted by Sir John Nicholl ; " but are not sane people sometimes perti- nacious in error 1 and who is to determine what evidence is ' plain ' .' " And arguing hence from the inadequacy of all the definitions. Sir J. P. Wilde concluded that delusions, as insane delusions, ought to be proved by insanity, not insanity by delusions.! A later probate judge of that country admits that to test delusion by what " no rational person would have believed " is arguing in a circle, yet he considers that test a good one for practical purposes.^ § 148. Delusions 'which do not involve Mental Incapacity. — It is not given us to penetrate into the world of dreams, nor to solve those mysteries in which a mind of strong imaginative powers and quick susceptibilities, prone to morbid depressions, may become involved, under the influence of superstitious training, long habits of self-introspection, or any such strange experience of life as gives to the character an eccentric devel- opment. But surely, many of the delusions, hallucinations, apparitions, by whatever names we may choose to call them, manifested in these and other minds, come very far short of establishing their incapacity for the usual transactions of life. An overtaxed mind tending to disease and disorder is often thus shown, to be sure ; but the strain may be temporary only, and the delusion never strong enough to unseat reason or per- vert the mind from its proper functions or the great task with which it wrestles. Macbeth's dagger and the ghost which appeared to Brutus before the battle are familiar among the countless examples in fiction ; and for veritable history one need only refer to modern apparitions, in which men like Dr. Johnson, Lord Castlereagh, and President Lincoln believed, whose testamentary capacity it would be preposterous to dis- pute ; or the star of destiny by which Napoleon guided his con- 1 Smith V. Tebbitt, L. R. I P. & D. ^ Boughton v. Knight, L. R. 3 P. & 401. D. 64. 146 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § ISO duct at a momentous crisis.^ The delusion may give friends cause for anxiety ; but the mind, when tested, is shown quite capable of making a will or managing vast affairs. But there are other cases in which a general morbid de- rangement of all or most of the organs must be admitted to exist. To these, and to the great mass of instances like those already cited. Dr. Wharton, an excellent authority among med- ical jurists, applies with strong approval the observations of De Boismont, on thie case of a man who supposed that he had sunk all his wealth at the bottom of a well.^ And he invokes on behalf of the weak and eccentric comprised in this category a portion of that tender solicitude, where the court deals with their last wills, which Chaneellbr Kent so touchingly claimed for old men in a passage we have already cited.^ § 149. Whimsical or Eccentric Behavior does not incapaci- tate. — Mere whimsical behavior, or eccentricities in dress, demeanor, and habits of life, constitute no incapacity to make a will or perform any other property transaction. Isolation from social companionship engenders usually peculiarities in this direction ; and the unmarried or disunited of both sexes, those whose homes have been broken up, and who find no close domestic bond such as smooths off the angles and rough edges of individual character by constant attrition, are the most prone to develop them.* § 1 50. UluBtrationa of Eccentric VTills. — Though the dis- tinction between eccentricity and insanity is a positive one, abstractly considered, courts have not in all cases applied it 1 These historical illustrations are set he regulates, bis expenses prudently,, we forth at length in I Wharton & Stille, do not think that whimsical actions, or §§ 52-57- words, the results of an erroneous be- * " It may be asked whether, ivt the lief, but having no influence on the state of mind in which the patient was, prominent acts of his life, should de- whose history we have related, he was prive a person of his civil liberties, and capable of making a will. This is a of the power of making his will." De very difiScult question; but its solution Boismont, cited I Whart. & Stillg Med. is not an impossibility. When the con- Jur. § 58. duct of the individual does not depart ' i Whart. & Stille, § 59; sufifa, § 135. from received usages, when it is not *See Boughton v. Knight, L. R. 3 controlled by one of those false ideas P. & D. 64; American Bible Society y. that make him hate his relations and Price, 115 111. 623; 121 111. 376; 6 friends without any motive, and when Demi 123. M7 § ISO LAW OF WILLS. [PART II. with marked success. There are recorded instances where wills have been refused probate' in the English ecclesiastical courts because the testator during life or in the testamentary act showed a disgusting fondness for brute animals. In one case the testatrix, who was a spinster, kept fourteen dogs of both sexes, who were provided with kennels in her drawing- room ; in another, a solitary female befriended a multitude of cats, which were provided with regular meals and fur- nished with plates and napkins.^ That affection which sets domestic creatures like these above the human kind can hardly be called a natural one, and yet it is not hard to com- prehend how a heart whose natural yearnings find no re- sponse may expend itself upon the lower animals. The Arab loves his horse, and prisoners of state have, in their solitude, made pets of rats and vermin. The lowest of the brute creation is capable of touching the human chord as well as gratifying a scientific curiosity. One might have expected, then, to find the whimsical attachment of such females ptonounced the sign not so much of insane as of merely eccentric behavior; unless, indeed, the will passed coldly by those whose human claims for sympathy should have had the first place in such a disposition. On the other hand, there is a remarkable case in which a man's will was sustained, as that of an eccentric, not insane person, which not only disinherited the next of kin in favor of a stranger, but displayed a wholly irreverent contempt for the post mortem disposition of the testator's own body, such as might shock the most benighted of heathen savages. He directed his executors to cause some parts of his bowels to be converted into fiddle strings, others sublimated into smell- ing salts, and the remainder of his body vitrified into lenses for optical purposes ; and in a letter attached to the will he said : " The world may think this to be done in a spirit of singularity or whim ; but I have a mortal aversion to funeral pomp, and I wish my body to be converted into, purposes useful to mankind." 2 One might have wished this will 1 Taylor Med. Jur. 658, citing Ygle- * Morgan v. Boys, Taylor Med. Jur sias V. Dyke, Prerog. Court, 1852. 657; cited i Redf. Wills, 82. 148 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § ISI refused probate, if only to rebuke the offensive zeal which, sanely or insanely, vaunted in a Christian country so flippant a disposition of person and property. But the letter above quoted showed that conscious defiance of public opinion only to be expected from a rational mind; and as the testator himself was shown to have conducted his affairs in life with great shrewdness and ability, and to have been universally regarded by his associates as a man of sound capacity, the court pronounced him eccentric and not deranged upon the proof, and admitted the will.^ Yet it would be hard to say why tenderness for the brute creation should be thought a sign of unnatural perversion, and contempt for one's own body (and presumably for all human bodies) should not. § 151. The Same Subject. — But in the matter of funeral and burial, differences of education and habits of thought may unquestionably produce tastes and customs utterly dis- similar. Thus, shocking as it may seem to most of us to have the corpse deliberately burned instead of buried, there are those who, with deliberate thought and even enthusiasm, embrace the doctrine of cremation. A will which gives such a direction need be no more than eccentric. And in details less repulsive, but sounding rather in extravagant folly, the religious views, the personal experience, the habits, asso- ciations, and superstitious surroundings of the testator dur- ing his life may throw such light upon his directions as wholly to remove the suspicion of insanity. An English case, reversed on appeal, illustrates this remark. The tes- tator, who was a native of England, but had lived long in the East and professed the Mahometan faith, directed that the residue of his estate, after paying specified legacies, should 1 lb. Judge Redfield pronounces this likely to adopt. And, considering that " the most remarkable case of mere the will in question not only made so eccentricity upon record, if it was shocking and cold-blooded a sacrifice of such," and shows a healthy repugnance the maker's own person to the cause of to testaments so heartless and irrev- science, but appears to have sacrificed erent. In his opinion, the court took the heir with equal heartlessness, we too charitable a view in regard to the may well agree with him. See Morse testator's mental capacity, and one v. Scott, 4 Dem, 507. which an American jury would not be 149 § I S3 LAW OF WILLS. [part IL go to the poor of Constantinople, and towards erecting a cenotaph in that city, inscribed with his name, and bearing a light to be kept perpetually burning. It was an absurd and superstitious will, when tested by opinions and habits of thought prevalent in England, for which reason the Preroga- tive Court condemned it as the offspring of insanity; but on appeal, the Privy Council refused to measure derange- ment by the standard of English thought and feeling, and the will was admitted to probate.^ § 152. Eccentric Habits may afford Evidence of Insane Delusion. — Eccentric habits may afford proof of insane delu- sion, when taken in connection with other facts and circum- stances pointing to the same conclusion. Especially is this true where the eccentricity together with the delusion fol-. lows mental prostration or develops in some strange, sud- den, and unaccountable mode, instead of growing as habits usually do.^ § 153. Monomania or Insane Delusion involves Derange- ment ; its Selfish Manifestations. — When we come to the more serious disorder known as monomania, which throws great doubt upon the sufferer's capacity for affairs, the insane delu- sion on some particular subject is the symptom most promi- nent ; and yet weakness or derangement affects probably the mind as an entirety. The understanding will be found per- verted in regard to a single object, or a limited series of objects. Solitary life, or the oppression of some particular task or problem, upon which the brain has long revolved, is likely to have induced this deranged condition from a morbid one; and hence eccentric habits often precede or accompany the disorder. This derangement, which we call monomania, admits of infinitely fine gradations. Nothing ' Austen v. Graham, 29 E. L. & Eq. independent means; so that, by this 38. In this case, general derangement, bounty to the poor of a Turkish city, and not monomania, was set up by the no natural claims appear to have been contestants of the will. The decedent seriously impaired, had lost wife and child, and had no * Miller v. White, 5 Redf. 320, affords next of kin nearer than a brother of a good illustration in point. ISO CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § 1 54 leads more naturally to the disorder than the experience of a mind of active but ill-attuned faculties, which has been thrown back upon itself from some cause without the sure prop of external sympathy; and in its most decided mani- festations it is selfish, and morbidly rejects the natural com- panionship. It would appear, too, that the person thus afflicted may retain a sufficient power of will to restrain his expressions of aversion, and conceal the real depth of his delusion. " It is well known to those who are conversant with the insane," observes Dr. Prichard, " that in persons who are considered as laboring under monomania, the mind is other- wise disordered and weakened, though the characteristic illu- sion is the most striking phenomenon. The social affections are either obliterated or perverted ; some ruling passion seems to have entire possession of the mind, and the hallucination is in harmony with it, and seems to have had its origin in the intense excitement of the predominant feeling ; this is always a selfish desire or apprehension, and the illusory ideas relate to the personal state and circumstances of the individual. In most cases of exclusive or partial mental illusion, the per- sons affected are abstracted, absent, incapable of applying themselves to any occupation, or even of reading with atten- tion ; they either forget the objects of their strongest attach- ment, or if they think of them at all, it is only to accuse them of injustice and cruelty, on the most frivolous pretexts, or the most improbable suspicions." ^ § 154. The Same Subject. — Authorities in the medical jurisprudence of insanity teach us that the illusions or false 1 Prichard's Insanity, cited in Smith especially a symptom of monomania to V. Tebbitt, L. R. i P. & D. 422. imbibe delusions which exercise a gov- See also Dr. Hammond's tract on erning influence over the mind of the Insanity, quoted in I Whart. & StillS, affected individual, and force him to the § 60, note. It is laid down by this commission of acts which in a state of eminent physician ; (i) That one of the sanity he would not perpetrate. (3) most prominent features of this species That the monomaniac has power to of insanity is a morbid feeling of hatred conceal his delusions and to arrest the to friends and relatives, and a disposi- paroxysms of delirium to which he may tion to do them injury. (2) That it is be subjected. § 155 LAW OF WILLS. [pART II. impressions of the monomaniac have almost always, if not invariably, a reference to himself ; that at some times they relate to his fortune, rank, or personal identity; at others, to his health of body and his sensations. "In the former class of cases," says Dr. Prichard, " the patient, feeling him- self unhappy, fancies himself in debt, ruined, betrayed ; or, being disposed to an opposite state of feelings, possessed of great wealth and affluence, and superior to all mankind. The difference of these impressions seems to depend upon the different state of spirits ; the persons affected by the former kind of impressions are those whose minds are predisposed to gloom and forebodings of ill ; the latter kind affect the sanguine and excitable."^ And it is matter of common note that persons so deranged fancy themselves kings, or emperors, prophets, or popes ; far in dignity above the common herd of mankind. § 155- I!nglish Opinions of Monomania as affecting Testa- mentary Capacity. — So much of our knowledge of insanity is built upon imperfect phenomena, that we need not be sur- prised to find authorities, and eminent ones, laying down somewhat at variance the maxims which ought to apply to cases of insane delusion. The English rule was long con- sidered as settled on the rational basis, that whether a will shall be set aside or not on the ground of monomania, or some particular mental delusion, should be tested by ascertaining whether or not the will appears to have been the direct, un- qualified offspring of the morbid or insane delusion. Upon such a distinction turned the decision of Sir John NichoU in the celebrated case of Dew v. Clark^ which was confirmed by the Court of Delegates, and whose judgment Lord-Chan- cellor Lyndhurst refused to disturb,^ observing, when objec- tions were pressed to the use of the term "partial insanity " in the court below, that the eminent judge meant only to convey that there must be unsoundness of mind in order to ^ Prichard's " Insanity in Relation to * Dew v. Clark, i Add. 279; 3 Adi' Legal Questions," cited in Smith v. 79. Supra, § 143. Tebbitt, L. R. i P. & D. 422. » See 5 Russ. Ch. 163. \ 152 \ CHAP. Vlll.] MONOMANIA AND INSANE DELUSIONS. § 1 5$ invalidate a will, but that the unsoundness may be evidenced only, or principally, with reference to one or more subjects.^ The Lord-Chancellor's reservation of this point invited at the next opportunity a vigorous attack upon the theory of " par- tial insanity " in any such sense as should present the idea of a divisible mind, sound in some functions and unsound in others. The opportunity came in 1848, when in a remarka- ble case Lord Brougham boldly took ground against the notion that there could be insanity on one point as consistent with testamentary capacity.^ This opinion he delivered with- out dissent as the judgment of himself and jurists like Lord Langdale and Dr. Lushington, whose names commanded the highest respect in legal circles. The judgment rendered might well enough have been reached through the reasoning of Sir John Nicholl ; hence we may question whether the support of Lord Brougham's colleagues went beyond repudi- ating on so fitting an occasion the compartment theory of the human mind, and leaving Lord Brougham, a man more famous for versatile attainments than the judicial temper, to work out his own ingenious speculations in the brilliant essay which legal usage styled an opinion.^ 1 5 Russ. Ch. 63. able criticism of theories which ob- 2 Waring v. Waring, 6 Moore P. C. struct the true conception of the mind 349. as one and indivisible; his Lordship ' " The question being," says Lord objecting to the expression> " partial Brougham, " whether the will was duly insanity," or even " monomania," and made by a person of sound mind or arguing that when we predicate that not, our inquiry, of course, is, whether one is of unsound mind only upon or not the party possessed his faculties, certain points, we are wrong in sup- and possessed them in a healthful state, posing such a mind really sound on His mental powers may be still subsist- other subjects ; it is sound only in ap- ing, no disease may have taken them pearance. "It follows, from hence,, away, and yet they may have been af- that no confidence can be placed in fected with disease, and thus may not the acts, or in any act, of a diseased have entitled their possessor to the ap- mind, however apparently rational that pellation of a person whose mind was act may appear to be, or may in reality sound. Again, the disease affecting be." One uniformly of sound mind them may have been more or less could not at the moment of the act be general; it may have' extended over the prey of morbid delusion, whereas a greater or less portion of the under- the person called partially insane would standing, or rather, we ought to say, inevitably show his subjection to the that it may have affected fewer of the disease the instant the topic was sug- mental faculties." Here follows an gested; therefore we can rely upon the IS3 § 156 LAW OF WILLS. [PART IL At first it was inferred by many that a new doctrine had been introduced into English jurisprudence, a new constraint placed upon testamentary capacity in doubtful cases ; and the danger was great that eccentric testators would lose whatever precarious foothold they had ever gained in courts of probate jurisdiction. In Smith v. Tebbitt, Sir J. P. Wilde, in 1867, made Lord Brougham's hypothesis the starting-point of his own investigation. "A person," he observed, "who is affected by monomania, although sensible and prudent on subjects and occasions other than those upon which his in- firmity is commonly displayed, is not in law capable of mak- ing a will."^ § 156. The Same Subject. — But in 1870 the Court of Queen's Bench repudiated expressly the hypothesis of Lord Brougham, and returned to the old ground. Chief-Justice Cockburn, a man of vigorous powers, who always regarded the substantial justice of the cause which his court was called upon to decide, reviewed the whole subject in a masterly manner, and reached this satisfactory result : that delusions, arising from mental disease, which are not calculated to pre- vent the exercise of those faculties essential to the making of a will, nor to interfere with the consideration of the matter act of the former, but not upon that of so on, and yet show himself capable of the latter. " It must always be a ques- managing his own worldly affairs and tion of evidence," is Lord Brougham's making a rational disposition of his conclusion, "on the whole facts and property? circumstances of the case whether or 1 Smith v. Tebbitt, L. R. i P. & D. not the morbid delusion existed at the 398. " For I conceive," he adds, " the time of the factum: that is, whether, decided cases to have established this had the subject of it been presented, proposition: that if disease be once the chord been struck, there would have shown to exist in the mind of the tes- arisen the insane discord which is ab- tator, it matters not that the disease be sent, to all outward appearance, from discoverable only when the mind is the chord not having been struck." addressed to a certain subject to the This is certainly a very diSicult exclusion of all others, the testator maxim for any jury of ordinary sagacity must be pronounced incapable. Fur- to apply. It presents a hypothesis, not ther, that the same result follows, a common-sense rule, for their guidance, though the particular subjects upon and must in many instances prevent a which the disease is manifested have just decision. Might not one be under no connection whatever with the tes- a morbid delusion with reference to the tamentary disposition before the court." future'state, the presence of ghosts and lb. CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § 1 56 which should be weighed on such an occasion, and which delusions have not in point of fact influenced the testamen- tary disposition in question, are not sufficient to deprive the testator of testamentary capacity and to invalidate his will.^ Unlike the cases, beginning with Waring v. Waring, which had ruled otherwise, this was an instance where it was really just to the testator's memory that the will in controversy should be sustained. The opinion itself, which the Chief- Justice personally prepared, contained cautious reservations indicating that, as concerned the human mind in the unity of its functions, he accorded with the views advanced by Lord Brougham and the best of modern psychologists.^ 1 Banks v. Goodfellow, L. R. 5 Q. B. 549. The able and sagacious Chief- Justice admits the great distrust with which any will must be regarded where the testator is once shown to have had insane delusions; especially, if the will itself is an injust one. "But when in the result," he continues, "the jury are satisfied that the delusion has not af- fected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a vrill, or why a will made under such circumstances should not be upheld. Such an inquiry may involve, it is true, considerable difficulty and require much nicety of discrimina- tion, but we see no reason to think that it is beyond the power of judicial inves- tigation and decision, or may not be disposed of by a jury directed or guided by a judge." « Lord Brougham and Sir J. P. Wilde (Lord Penzance) lay it down that the mind, being a unit, cannot be said to be disordered in one part and not in another. The theory of Chief- Justice Cockburn is best stated in his own words : " Whatever may be its essence, every one must be conscious that the faculties and functions of mind are as various and distinct as are the powers and functions of our physical organiza- tion. The senses, the instincts, the affec- tions, the passions, the moral qualities, the will, perception, thought, reason, imagination, memory, are so many dis- tinct faculties or functions of mind. The pathology of mental disease, and the experience of insanity in its various forms, teach us that while, on the one hand, all the faculties, moral and intel- lectual, may be involved in one com- mon ruin, as in the case of a raving maniac; in other instances, one or more only of these functions may be disor- dered, while the rest are left unimpaired and undisturbed; that, while the mind may be overpowered by delusions which utterly demoralize it, and unfit it for the perception of the true nature of surrounding things, or fo^ the discharge of the common obligations of life, there often are delusions which, though the offspring of mental disease, and so far constituting insanity, yet leave the indi- vidual in all other respects rational, and capable of transacting the ordinary affairs and fulfilling the duties and ob- ligations incidental to the various rela- tions of life. No doubt when delusions exist which have no foundation in real- ity, and spring only from a diseased and morbid condition of the mind, to that extent the mind must necessarily be taken to be unsound, just as the body, if any of its parts or functions is ISS § 1 57 LAW OF WILLS. [pART IL Sir James Hannen, one of the court responsible for the decision in this case, took occasion to commend Lord Cock- burn's views somewhat later, when charging a jury as Judge Ordinary where another will was opposed at the probate on the ground of insane delusion.^ Such, then, is the posture of English judicial opinion on this difi&cult subject at the present time. § 157. English Cases stated where WUls were refused Pro- bate because of Insane Delusion. — Passing from dictum to decision, we find, as often happens, no such great discrepancy ; principles having been disputed more broadly than the facts of a given case required. To begin with Dew v. Clark, decided about 1823. An eminent electrician had an only child, a daughter of amiable traits, and worthy of his affec- tion ; and after experimenting most cruelly to bend her to his wishes, and explore those unuttered thoughts which are confided by the human soul to its Maker alone, he displayed against her an uncontrollable disgust and aversion, oppressing her in various ways, and finally making a will which cut her off in favor of his collateral relations. Upon the evidence submitted, John Nicholl found that the testator was insanely deluded upon the subject of his own child, and refused the will probate.^ affected by local disease, may be said w. Smee, 5 P. D. 84 (1879), the Court to be unsound, though all its' other charged a jury to the same effect as in members may be healthy and their Banks v. Goodfellow, supra. powers or functions unimpaired." L. ^ Dew v. Clark, 3 Add. 79; i ib. R. 5 Q. B. 549. 279; 2 ib. 102. Whether we accept its accuracy or In the opinion here rendered, refer- not, in the fullest sense, the analogy ence is made to the authority of Green- here suggested between mental and wood's Case, which, as it seems, was bodily disease is certainly a striking never fully reported, though stated one, making the seen figurative of the somewhat in detail in various books, unseen. Mr. Greenwood, while insane, took up 1 Boughton V. Knight, L. R. 3 P. & an idea that his brother had admin- D. 64. Sir James Hannen's exposition, istered poison to him, and this became which is highly interesting, has the ad- the prominent feature of his malady, vantage of being the latest one of con- He recovered from his insanity and sequence pronounced in England upon returned to his profession, which was insane delusions as affecting the issue that of a barrister, but never could of testamentary capacity. But in Smee shake off the morbid delusion that his 156 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § IS8 In Waring v. Waring, a case whose decision required no different mental hypothesis such as Lord Brougham saw fit to promulgate, the testatrix, a woman advanced in years, was very penurious, irritable, wrangled to an excess with her ser- vants, and at times indulged in grossly obscene conversation, imagining herself to be amorously sought by the chief minis- ters of the realm. All this perhaps might have passed for eccentricity; but it was shown, besides, that she had an insane delusion that her brother had joined the Catholics, whose religion she abhorred, and like her distinguished lovers prowled about her house in strange disguise ; and that brother she disinherited. Coupled as all this was with an inquisition of lunacy, it was easy to pronounce against her will, upon any theory of insane delusion.^ Once more, in Smith v. Tebbitt, the will of a testatrix was set aside whose religious delusions were astounding. Her deceased husband was the "devil," for whom she would not go into mourning ; her heirs-at-law were " doomed to perdi- tion " ; she had a tiara of jewels made in which she was to ascend to heaven ; she believed herself " the Holy Ghost," and her medical adviser " the Father " ; and to the latter, a stranger in blood who had rendered her no unusual service, after providing sundry legacies for relatives, servants, and others, she willed the great bulk of her fortune as the gift of "one member of the Trinity" to another.^ § 158. The Same Subject. — Very different in its presenta- tion of facts and circumstances was Banks v. Goodfellow, where the Chief-Justice and Queen's Bench refused to sanc- tion a positive injustice upon any plea of theoretical consist- ency. In the former instances there was an inofficious will to be set aside, here there was none. Before, the partial brother had tried to poison him, and in 89; 3 Curt. Appx. 1-31; I Wms. Exrs. his will he disinherited the brother. 29, note. The issue of devisavit vel non was tried 1 Waring v. Waring, 6 Moore P. C. in two diilferent courts, one verdict 349. being against the will, the other sus- ^ Smith v. Tebbitt, L. R. I P. & D. taining it; but the suit ended in a com- 398. promise. See 3 Add. 96, 97; 13 Ves. 157 § 159 LAW OF WILLS. [pART IL unsoundness of mind, or rather the monomania, operated upon the particular disposition injuriously to the natural objects of the deluded person's bounty ; now it did not. Two delusions disturbed the mind of the testator : one, that he was pursued by spirits ; the other, that a man, long since dead, came per- sonally to molest him, this dead man a person not in any way connected with the natural objects of the testator's bounty. The will in dispute might well have been the product of a capable mind ; and, admitting that the testator was sometimes incapable, the issue of actual capacity at the time of the act had been left to the jury under instructions sufficiently guarded. The jury found for the will, which was one in favor of the testator's niece ; and as the will was not unnatu- ral, nor the testator's delusions such as could have influenced the disposal of his property, the court on appeal refused to disturb the verdict.* Once more, in Boughton v. Knight? the testator's will was set aside because of an insane delusion which operated inju- riously against his own flesh and blood. In this case Sir James Hannen stated, with great positiveness of expression, that there is a limit to sustaining wills whose provisions are unjust and unnatural. A man moved by capricious, mean, or even bad motives may at our law wholly or partially disin- herit his own children and leave his property to strangers ; but there is a point beyond which it will cease to be a ques- tion of harsh and unreasonable judgment, and then the repul- sion which a parent exhibits to his child must be held to pro- ceed from some mental defect ; and if such a repulsion, amounting to a delusion, is shown to have existed prior to the execution of the will, the party who propounds that will must show that it was inoperative when the will was made.^ § 159. American Maxims aa to the Effect of Monomania upon Testamentary Capacity. — In the American cases, where the influence of monomania or insane delusion appears to 1 Banks v. GoodfeUow, L. R. S Q. B. « Boughton v. Knight, L. R. 3 P. & 549- D- 64; and see Smee v. Smee, 5 P. D. 2 L. R. 3 P. & D. 64. 84. 158 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § I59 have afforded a wider scope for investigation, the doctrine of testamentary capacity as understood in England prior to 1848, and once more favored in 1870 by the court of Queen's Bench,^ is firmly adhered to. The notion to which Lord Brougham gave currency, that a single delusion lurking in the testator's mind vitiates his will (though not apparent in the will itself) because it proves him insane, is pointedly con- demned by eminent judges in various States ;2 and the point of inquiry upon which testamentary cases of this character in- variably turn is, whether the insane delusion, the monomania, entered into the product of the particular will in dispute. In other words, where general insanity so as to wholly inca- pacitate is not apparent, but simply monomania, the court will admit the will to probate where, upon the whole proof, the conclusion reached is that the provisions of the will were not influenced by the insane delusion ; ^ but where, on the con- trary, it should fairly be inferred that the instrument was af- fected by the insane delusion, probate will be refused.* Not an American case of consequence has departed from this standard;^ and, as a general rule, any unsoundness of mind which appears not to affect the general faculties, nor to oper- ate on the mind of a testator in regard to his testamentary disposition, is not deemed. sufficient to render him incapable 1 Supra, % 156. Society v. Hopper, 33 N. Y. 619; 43 ' See Dunham's Appeal, 27 Conn. Barb. 625 ; Lucas v. Parsons, 24 Ga. 192, 204. 640; Florey v. Florey, 24 Ala, 241 ; ' Boardman v. Woodman, 47 N. H. Stanton v. Wetherwax, 16 Barb. 259; 120; Whitney v. Twombly, 136 Mass. Merrill v. Rolston, 5 Redf. 220; Taw- 145; Clapp V. Fullerton, 34 N. Y. 190; ney v. Long, 76 Penn. St. 106; Gard- HoUinger v. Syms, 37 N. J. Eq. 221; ner v. Lamback, 47 Ga. 133; American Blakely's Will, 48 Wis. 294; Stackhouse Bible Society t). Price, 115 111. 623; V. Horton, 2 McCart. 202; Leech v. Chaney v. Bryan, 16 Lea, 63; 45 N. J. Leech, n Penn. L. J. 179; James v. Eq. 726; Vedder Re, 6 Dem. 92. Langdon, 7 B. Mon. 193; Gass v. Gass, ^ See Cotton v. Ulmer, 45 Ala. 378, 3 Humph. 278; Cole's Will, 49 Wis. where the Supreme Court condemns a 179; Rice V. Rice, 50 Mich. 448; somewhat involved charge to the jury, Thompson v. Quimby, 2 Bradf. 449; by way of hypothesis, in effect that a s. c. as Thompson v. Thompson, 21 will may be upheld, although the direct Barb. 107; Turner v. Hand, 3 Wall. Jr. offspring of a particular insane delusion, 120; Brown v. Ward, 53 Md. 376. if the jury believe the testator would * Boyd V. Eby, 8 Watts, 70; Johnson have made the same will if he had been V. Moore, I Litt. 371 ; Seaman's Friend sane. 159 § i6o LAW OF WILLS. [part IL of disposing of his property by will.^ On the other hand, partial insanity or monomania is frequently held in this country to invalidate a will which is the direct offspring thereof, though the testator's general capacity be unim- peached.2 § 1 60. American Cases stated where the Will of a Mono- maniac was sustained. — There are numerous American in- stances where the will of one affected by monomania has been sustained notwithstanding some insane delusion or delusions collateral to the disposition. As in the case of a testator, who entertained the most extraordinary, senseless, and absurd opinions on matters quite disconnected from the disposition of his property.^ Or of one who perversely insisted that his former wife, from whom he was divorced, had been unchaste ; and that their child was illegitimate. 1 Pidcock V. Potter, 68 Penn. St. 342. In Boardman v. Woodman, 47 N. H. 120, it was decided that, although the testator may have been under a delu- sion on one or more subjects, yet if the will made by him, and its provisions, were not in any way the offspring or result of the delusion, and were not connected with or influenced by it, then the testator may be regarded, as in law, of sane mind, for the purpose of mak- ing the will, and the will as valid. This, says Sargent, J., " is in accordance with the great weight of authority, ancient and modern, English and American, medical and legal." And he disapproves the opinion of Lord Brougham's in War- ing V, Waring (§ 158) to the contrary. The opinion in State v. Jones, 50 N. H. 396, is to the same effect, and Chief- Justice Cockburn and the doctrine of Banks v. Goodfellow are commended. So in a Connecticut case in 1850, the court reviewed the authorities carefully, including Waring v. Waring, and ruled that " the notion that a single delusion is general insanity, and that the jury are to be so instructed, irrespective of the degree or intensity of it, is nowhere countenanced in this country, and not until lately in England." Here the court below had refused to instruct the jury " that, if the testatrix harbored a delusion, she was, while harboring such delusion, of unsound mind, and her will made at such a time would be void." Ellsworth, J., who delivered the opinion on appeal, held that this refusal to so instruct the jury was right. His conclusion of the law is : " That, if the testatrix had mind enough to know and appreciate her relations to the natural objects of her bounty, and the character and effect of the dispositions of her will, then she had a sound and disposing mind and memory, although her mind may not be entirely unimpaired." Dun- ham's Appeal, 27 Conn. 192. See also the criticism of Lord Brougham in Ben- oist V. Murrin, 58 Mo. 307. ^ See the patient and exhaustive an- alysis of this subject, with citations from reports, English and American, by Siu:ro- gate Redfield, in Merrill v. Rolston, 5 Redf. 220. ' Thompson v. Thompson, 21 Barb. 107, sustaining the decree in 2 Bradf. 449. Mistaken beliefs or delusions not insane will be considered presently. 160 CHAP. VIII.J MONOMANIA AND INSANE DELUSIONS. § l6l there being no proof that the delusion affected hi? parental, conduct in the slightest degree, or that his will discriminated unjustly against the child, considering that the latter in- herited from the divorced wife besides, who had received a very liberal alimony at the testator's cost.^ Or of one whose mental delusion relates merely to his physical condition and the cause of his infirmity.^ Or even of one deluded, indeed, as to some particular person who might otherwise have ex- pected a legacy under the will, but who cannot possibly derive any legal benefit from having the will set aside.^ Or generally where it is manifest that one's delusion has not affected his gifts.* ^ l6l. American Cases stated where the 'Will of a Mono- maniac was not sustained. — On the Other hand are numerous decisions, where the will of a monomaniac was refused pro- bate ; the insane delusion so tainting the testamentary dispo- sition that it could not justly be permitted to operate. As in a case where a father, while attacked with a mental dis- order, conceived a strong dislike to his eldest son, without any adequate cause, and, recovering his reason in all respects except this perversion of natural affection, made a will which disinherited the son.^ Or where, again, the testator was under a delusion that his nephewsi, being his heirs-at-law» were conspiring to take his life, and that one of them had caused his death by putting him in a stove.® Or where the decedent, a woman, became insanely morbid over the mar- riage made by her heir with her disapproval, and pursued him 1 Cole's Will, 49 Wis. 179. little consequence in such connection, 2 HoUinger ». Syms, 37 N: J. Eq. '221. Ayres v. Ayres, 43 N. J. Eq. 565. * Stackhouse I*. Horton, 2 McCart. ^ Lucas v. Parsons, 24 Ga. 640. It 202. will be seen that the facts in this case * Rice V. Rice, 50 Mich. 448. And very strongly resemble those in Green- see Benoist v. Murrin, 58 Mo. 307; wood'sCase, cited j»/>-a, § 157. Aperr Denson v. Beazley, 34 Tex. 191; Lee version of feeling like this is not seldom V. Scudder, 31 N. J. Eq. 633; 35 N. Y. the last trace left of mental disorder 70; Vedder ^^, 6 Dem. 92; Schneider where the convalescent appears in other V. Manning, 121 111. 376; 125 111. 33; respects restored to reason. Smith ,w. James, 72 Iowa, 515. The e Seaman's Friend Society w. Hopper, illusion lof one in ithe laststage of con- 33 N. Y. 619; s. c. 43 Barb. 625. sumption that she will irecover is of 161 § l6l LAW OF WILLS. [PART IL with the jealousy, vindictiveness, and vulgarity of a mono- maniac to the day of her death, giving the bulk of her prop- erty to charities by her will.^ Or where an intemperate hus- band was shown to be so insanely jealous of his wife, a chaste woman, that he denied the paternity of his own children, beat and abused her on account of her supposed infidelity, and finally shot her dead and committed suicide, leaving a written statement behind which imputed dishonor to her absurdly and falsely.^ Insane delusion may relate to the property of which one disposes, rather than to the persons who are the natural objects of his bounty.^ In short, monomania, or partial insanity, will invalidate any testament which may fairly be inferred to be the direct offspring of the malady, and an instrument vitally different from what it would have been had the mind beeri in its normal sane condition.* While the dis- carding of one's relatives, and distant ones more especially, affords no necessary inference of incapacity, and while mere prejudice against the natural objects of one's bounty, should not vitiate a testator's will, the case is different where the testamentary disposition appears to have been colored or dis- torted by some morbid and false delusion.^ Eccentric habits and insane delusion are often suddenly manifested together. In a New York case, an aunt, in 1877, made a will in favor of her niece and only next of kin. She was then tidy, ladylike, and hospitable; but in 1878 she became slovenly, morose, and unsociable, and, without any good reason, took a dislike to her niece, aspersed her motives in visiting her, and even falsely charged her with pilfering. When she died, it was found that she had revoked by a cod- icil all the provisions made in her niece's favor ; and this codicil the court set aside as evidently the offspring of an insane delusion.^ 1 Merrill v. Rolston, 5 Redf. 220. * Drinkhouse's Estate, 14 Phila. 291; And see American Bible Society v. Whitney v. Twombly, 136 Mass. 145; Price, 115 111. 623; Dorman Re, 5 Tittel's Estate, Myrick, 12. Dem. 112. s See Chaney v. Bryan, 16 Lea, 63; 2 Burkhart v. Gladish, 123 Ind. 338. Lockwood's Will (N.Y.) Am. Dig. 1890. • Brinton's Estate, 13 Phila. 234. 6 Miller v. White, 5 Redf. 320. 162 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § l62 § 162. Insane Delusion to be distinguished from Prejudice or Error, as well as Eccentricity. — Insane delusion should be distinguished from prejudice or some rational belief not well founded, however perversely the testator may have clung to it. By delusion in the popular sense of the word, even a sane mind may be possessed ; and this fact legal if not medi- cal jurisprudence recognizes when it bases the present inca- pacity upon what is termed not delusion, but insane delusion. Be this as it may, experience certainly teaches us that one who is sensible and reasonable on most subjects, who displays in affairs the greatest sagacity and may be implicitly trusted in the details of business management and the disposition of a large estate, and upon whose mental competency it would be preposterous to cast a doubt, will nevertheless display the most narrow and intolerant views on particular questions or with regard to certain individuals. His antipathies in this respect are really as groundless and wrong as ^hey are violent and yet he will be found to cherish them with as much loyalty as he does his sympathies. We may say that his prejudice is the conclusion of a reasoning mind on insufficient evidence. Yet the mind refuses proof or arguments to the contrary in many such instances, and remains wedded to its own convic- tions, its instinctive likes and dislikes. Now, all this obsti- nate perversity, this wrong-headedness, falls far short of denying one the right to dispose by testament of his own property ; and so would it be though the testator were capri- cious, revengeful, passionate, niggardly, base, dishonorable, a scoundrel to the world, or even to his own family. For strong, violent, and unjust prejudices, it is held, if not founded in insane delusion, do not establish mental incapacity ; and no will can be set aside on account of any moral obliquity or prejudice of the testator displayed therein, nor because the particular disposition of property is unnatural or unjust, un- less this perversion of the affections can be traced to mental disorder.^ 1 Boardman v. Woodman, 47 N. H. 726; supra, § 146; White's Will, 121 120; Trumbull v. Gibbons, 2 Zabr. 117; N. Y. 406; 6 Dem. 123. Middleditch v. Williams, 45 N. J. Eq. Some personal grievance operating 163 § 163 LAW OF WIIiLS. |[PART II. As for merely eccentric conduct, we have already seen that this, too, is something distinct from insane delusion, though divided often by a line exceedingly difficult to trace.^ § 163. The Same Subject. — Capacity, therefore, should not be considered as destroyed by any delusion or ill-founded belief not actually insane.^ And where one indulges in a prejudice, however harsh, which is the conclusion of a reason- ing mind, on evidence no matter how slight, his will cannot on that account be overturned. Thus, where a sane testator, on slight but insufficient proof clung to the belief that his wife had been unchaste and one of his daughters was illegiti- mate, and disinherited the latter in consequence, it was decided that the court had no ground for refusing probate of the will.^ So, too, it is held that a testator's mere opinion that some of his children had treated him badly, though erro- neously formed, will not invalidate his testament.* The exist- ence of dislikes, prejudices, and animosities, however un- founded, in one's mind does not of itself destroy testamentary capacity, nor justify a court in avoiding an instrument which upon a strong, irritable, and obstinate ment of all his other concerns. Many a temper produces often the state of mind man has some hobby, and may ride it under which the perverse prejudice is very much to the annoyance of' dthers, formed; and one who in some way hap- and yet be perfectly capable of manag- pened to be associated with the griev- ing his own affairs, and disposing of his ance, like an officer who serves process property by deed or will." Turner v. for others, or the attorney of the offend- Hand, 3 "Wall. Jr. 120. ing client, may suffer from the harsh opin- ' Supra, § 149. ion thus conceived. Mr. Justice Grier ^ FuUeck v. AUinson, 3 Hagg. 527; once charged a jury in the case of a will Hall v. Unger, 2 Abb. U. S. 507; Hall produced by a testator of this description. ». Hall, 38 Ala. 131. " His mind," says.the court, "was greatly ' Glapp 1/. Pullerton, 34 N. Y. 190; .excited on a particular subject, — his Cole's Will, 49 Wis. 179. In Florey i'. park property. He was very stingy, Florey, 24 Ala. 241, the circumstances and set a high value on his rights of were similar; but as others took advan- prpperty. But it is no evidence of any tage of this false impression to deceive mental delusion, that he thought this the testator, the will was set aside as seizure of his property without his con- the offspring of deception. Judge Red- sent a high-handed exercise of power, field observes that, in this case, the etc. That it became his hobby, made court evidently confounded mere defect him very troublesome and a bore to all of knowledge and error in judgment his acquaintances and friends, is of no with insane delusion. I Redf. Wills, importance at all, in the matter trying 86, note. before you, if he retained his memory * Short v. Brubaker, 94 Md. 165; and hisAisiuil shrewdness in the manage- Hite v. Sims, ib. 333, 164 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § 164 is unaffected by the fraud or undue control of other persons.^ Even the dislike of a spouse with whom the testator's rela- tions have not been harmonious may be injuriously demon- strated in a will without imputing insanity of any kind to the testator .2 Nor does proof of eccentricity, caprice, fretfulness, and a suspicious and irritable temper establish either a lack of mental capacity or insane delusions incompatible with the power to dispose at discretion.^ § 164. Aversion not amounting to Insane Delusion illustrated. — In a recent New York case the will of a married woman was contested on the ground that she had delusions with reference to her husband' and some of her children, which created a wrong impression upon her mind and induced her to discriminate against them in the disposition of her estate. It appeared by the testimony that until about fifty-eight years of age the testatrix was a person of intelligence, considerable business capacity, and entirely competent to make a legal disposition of her property. At that period of life she had an attack resembling apoplexy or paralysis; but after recover- ing from her sickness she continued to manage her business, executed deeds, conversed intelligently with her friends, and gave to her attorney intelligent instructions concerning her will, modifying her views in some respects upon his advice. Though impaired somewhat in health, and perhaps in mental vigor, she collected rents, directed improvements on her prop- erty, and virtually conducted her own affairs still as one entirely capable of doing so. Her will was made about a year before her death, and the fortune of which it disposed was derived originally from her husband in settlement of a suit she once brought against him for divorce. As for the dispositions complained of, they appeared more the results of a jealous temper with reference to her husband and resent- ment cherished towards children who had taken part against her in bitter family quarrels stretching out for a long space of years, than the offspring of any insane delusion on her part; hence the will was admitted to probate.* 1 Carter v. Dixon, 69 Ga^ 8a » Blakely's Will Re, 48 Wis. 294. « Phillips ». Chater, I Demarest, 533. ♦ Goit v. Patchen, 77 N. Y. J33 165 § l6S LAW OF WILLS. [PART II. § 165. Rational or Irrational, Just or Unjust, Character of the •Will to be considered. — The distinction we have just dwelt upon, as between sane and insane delusion, that fallacy which is a pure figment of the disordered brain and that fal- lacy which comes rather from a prejudice nurtured by some course of deception or self-deception, some eccentricity of character or habits, such as makes one after a time obstinate or inveterate in his groundless belief or aversion, and un- justly disposed in consequence, though by no means an inca- pable person, is, after all, of less practical consequence in testamentary causes than would appear at first sight. For be the delusion sane or insane, be the habits of the testator purely eccentric or such as indicate a monomania, the best English and the universal American doctrine treats all this lightly in respect of capacity, provided the delusion or the eccentricity has not operated upon the will, distorting its pro- visions into something unnatural and unjust. But if, on the contrary, the result is to disinherit, to cut off the natural objects of one's bounty, to produce an absurd, hurtful, irrational will, a court or a jury will set such an instrument aside with little compunction, wherever a doubt remains whether the testator was not fixed in his fallacy by others, so as to have been unduly influenced, or else through his own morbid reflection and experience, his peculiar habits and mode of life, perverted in mind until the delusion became an (1869). This case shows how difficult once instigated to put her in a lunatic a t^ask the courts would enter upon, asylum, which her husband arrested, should they undertake to test the and of which she herself gained knowl- rational character of a will, or of the edge. In short, those of her children testator's own mind, by the right or who had taken her side she favored in wrong involved in domestic feuds which her will; and those who had not, she have left their impression upon the in- discriminated against. It was not easy strument. This family had been in con- to say whether she discriminated justly stant strife and turmoil, partly because or not; but there was certainly nothing the decedent was passionate, wilful, and in all this to establish insane delusion, jealous of her husband; atone time en- See White's Will, I2i N. Y. 406, gaging in a lawsuit, which was compro- to the effect that dislike of Free-Masonry, mised by a conveyance to her. Her and of a son, because he belongs to a son once assaulted her with a pistol, and, Masonic lodge, cannot be treated as an on being indicted with her husband, was insane delusion, convicted. There was a proceeding 166 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § l66 insane one, a monomania, and in this particular respect at least he was unsound, deranged. This is not, perhaps, what the courts regularly assert ; but an examination of the decided cases under our present head, will show that it is usually the practical consequence. No class of testaments, indeed, where testamentary capacity can be called in question, will be found more easily indulged than those where nothing worse than some harmless delusion can be set up against the testator ; but none are more likely to be set aside, when perverted in terms from justice and natu- ral affection, or as the Roman law styled them, inofficious, than those where the delusion, if such it may be called, must have directly induced the baneful disposition. True, a sane mind must be permitted to work out its own harsh, cruel, and revengeful purposes for post mortem effect ; and yet, in determining whether there was entire sanity or monomania, whether the mind, even if sane, had not been brought by some other influence, unfairly exerted, to operate as it did, regard may be had to the contents of the particular will and the circumstances surrounding its execution.^ § 1 66. Leading Frinciples applied to Religious Opinions ; Delusions upon Matters Supernatural, etc. — The leading prin- ciples already stated apply to testamentary causes where the opinion, or rather the delusion, of a testator upon religion and matters supernatural furnishes the ground of controversy. 1 In Boughton v. Knight, L. R. 3 P. & mental defect. If such repulsion amount- D. 64, Sir James Hannen, when setting ing to a delusion as to character is aside a will which disinherited one's shown to have existed previous to the child without any just cause, thus laid execution of the will, it will be for the down the distinction essentially as above, party set^ng up that document to estab- A man moved by capricious means, or lish that it was inoperative when the will even bad motives, may disinherit wholly was made. See also Cockburn, C. J., or partially his children, and leave his in Banks v. Goodfellow, L. R. 5 Q. B. property to strangers. He may take 549, that the presumption against a will an unduly harsh view of the character made under the direct influence of a and conduct of his children. But there delusion " becomes additionally strong is a limit beyond which it will cease to where the will is, to use the term of the be a question of harsh and unreason- civilians, an inofficious one, that is to able judgment, and then the repulsion say, one in which natural affection and which a parent exhibits to his child the claims of near relationship have must be held to proceed from some been disregarded," 167 § l66 LAW OF WILLS. [pART IL Unquestionably the speculative belief any individual may entertain concerning the present or the future state,, things natural or supernatural, religion, politics, education,, or any other of those agitating problems upon which men think and divide in sentiment, should properly be considered an affair of his own conscience ; and it is within very narrow limits that any such belief can be confidently pronounced a delusion. And so long as one's course of conduct in pursuance of his opinions does not transcend the laws which public policy sees fit to prescribe for society, there is no reason why he should not by testament,, as well as by a gift while living, promote with his own fortune the views to which he has attached himself. Upon such considerations wills are justly made which,, without neglecting the claims of natural affection, endow churches, seminaries, and societies for the propagation of truth in accord^ ance with the testator's own creed. But to all this there is a legal limit. Certain so-called truths must necessarily be obnoxious to public policy ; errors,. in fact, and pernicious to society in its existing stage, accord- ing to the standard by which its safety and welfare must be judged. Opinions are held by individuals conscientiously and firmly — as, for instance, in favor of free love, community in property, subversion of civil authority, pure atheism — which courts, though disposed to leave speculation free, may well refrain from sanctioning, when it comes to an individual bequest to propagate. Moreover, upon some such subjects, religion and the supernatural world in particular, men may safely be called deluded ; and more than this, insanely deluded, monomaniacs, or even general maniacs. Especially must insanity be the symptom, where the enthusiast or fanatic, as often may happen, comes to imagining himself vested with the divine or supernatural functions : as Prophet, King,, or indeed, the Deity in person.^ Such extreme derangement, if not general, amounts at least to monomania ; we say of such a person that he is crazy on religious subjects, though he may show himself otherwise capable and reasonable in affairs. 1 See e^. Smith v. Tebbitt, L. R. i P. & D. 398. 168 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § l68 § 167. The Same Subject. — If, then, the insane delusion exists without other appearance of incapacity, but, on the con- trary, testamentary capacity is apparent in all other respects, the essential question is whether the insane delusion, the monomania, has affected the will and the particular disposi- tion: If it has not, but the will appears just and natural in its provisions and duly executed, there is no reason why the will should be refused probate. But if, on the contrary, the insane delusion has evidently affected the provisions of the will, so as to bestow harshly and unjustly, — sacrificing, in fact, those with natural claims upon the testator's bounty in order to effect some absurd or unnatural purpose, — the will ought to be set aside. ,And we may add, as the better inclination of the decisions, that wherever the delusion has evidently thus operated to pervert the provisions of the will in this manner, there is no need of very minute inquiry as to whether the delusion was sane or insane ; for the instrument itself affords strong proof that the faculties of the mind were too disordered to bear properly upon the scheme of testamentary disposal.^ For the will which delusion does not invalidate is, after all, a rational one. § 168. Wills of Persons believing in Witchcraft, Spiritualism, Clairvoyance, etc. — It follows that the will of one who believes in witchcraft, magic, ghosts, and spectral influences, whether supernatural or only mysterious, is not on that sole account void.^ Nor does the belief in spiritualism invalidate a will as a matter of law ; ^ nor the belief in clairvoyance, mesmer- ism, faith-cures, or other matters upon which the majority of society are skeptical.* To make evidence of such belief ad- missible to show mental incapacity it must first appear that the will was the offspring of such belief. Even were one 1 Supra, § 147. Adams, 62 Me. 369; Smith's Will, 52 2 Addington v. Wilson, 5 Ind. 137; Wis. 543; Keeler's Will (N. Y.) Am. Kelly V. Miller, 39 Miss. 19; Thomp- Dig. 1889; Middleditch v. Williams, son V. Thompson, 21 Barb. 107; 2 45 N. J. Eq. 726. But cf. Lyon: v. Bradf. 449; Leech v. Leech, 4 Am. L. Home, L. R. 6 Eq. 653; I Redfi Wills, J. 179; Vedder Re, 6 Dem. 92. 163. » Brown v. Ward, 53 Md. 376; Otto * La Bau v. Vanderbilt, 3 Redf. 384. V. Doty, 61 Iowa, 23; Robinson v. 169 § 1 68 LAW OF WILLS. [PART II. thought insane instead of credulous on such subjects, he might still be unimpaired in general testamentary capacity.. But where such a belief affects directly the provisions of the will, perverts them from their just and natural course, and gives an irrational tincture, so to speak, to the whole instru- ment, a serious issue is presented at the probate. It is a peculiarity of spiritualism, that the believer considers himself guided in his conduct by invisible agencies ; for which reason one recent case, at least, under this head seems to regard undue influence rather than insane delusion and incapacity as the ground upon which such wills should be assailed.^ But this refines too greatly the scope of controversy in such cases ; for we should still treat these spiritual whisperings, like dreams or visions, as the testator's own delusion, and consider him a capable or incapable testator, especially when the offspring of such invisible converse partakes more nearly of the diabolical than divine nature. If he made his will at the dictation of a clairvoyant or other adviser palpable in the flesh, that of course is another matter.^ As to beings invisi- ble and intangible, however, one's speculative belief in their existence need not affect his testamentary capacity at all ; but if one is possessed by spirits or the devil, when his will is made, it is enough that the will is found the product of a deluded or deranged mind, to justify setting it aside when inofficious, without attempting to resolve what views of dispo- sition the spirits or the devil pressed upon the testator or how hard they pressed them.^ 1 Robinson v. Adams, 62 Me. 369. resting, however, with much confidence ''■ Cf. Thompson v. Hawks, 14 Fed. upon the peculiar circumstances which Rep. 902; Greenwood v. Cline, 7 Or. proved the will by no means an unjust 17- one- The testator had lived happily ' In Smith's Will, 52 Wis. 543, the with his second wife; and it was not testator was one whom many regarded through her fault alone that she and as crazy, and who was certainly quite the children by the former marriage eccentric. He believed in spiritualism, did not get on well together. These married a second time, and claimed children were all adults, and able to that the spirit of his first wife approved provide for themselves; while the whole his choice, as well as the will which he property, after settling up the estate, afterwards made in favor of the second would not be more than enough for the wife, to the exclusion of the first wife's widow's comfortable support, children. The court sustained the will; Upon the matter of spiritual influ-. 170 CHAP. VIII.] MONOMANIA AND INSANE DELUSIONS. § l68 ences, the spirit of the 6rst wife did not guide the testator, according to his assertions which were submitted in proof, but only declared an approval of the will after he had made it. And while the testator had often professed to be guided in his worldly affairs by various spirits, it appeared that a posi- I tive faith in the accuracy of his own judgment served as an important coun- ' terpoise to the delusions he might have entertained. He had himself once de- clared, after some ill experience with advice of that kind, that there appeared to be some spirits which tried to fool him, and others which did not. § 169 LAW OF WILLS. [PART It CHAPTER IX. PROOF OF CAPACITY AND INCAPACITY. § 169. In Uncontested Cases of Probate, much is taken for granted by the Court. — Wherever a will is presented for pro- bate and no contestant appears, most of the facts essential for establishing the instrument are readily taken for granted. In England there is a simple mode of procedure for non-con- tested cases, known as the probate in common form ; and though scarcely an American State appears to have expressly adopted that mode, yet we not uncommonly find the proof of the will reduced to a minimum under such circumstances.^ Capacity in the testator is inferred readily from his due exe- cution of the instrument ; and as for the fact of his death, of his last place of residence, the question who are his kin- dred, or his heirs-at-law, the identity of the executor named, and the like, all these matters 2X& prima facie inferred by the court from unsworn ^ recitals of the petition for probate, with little or no formal examination. Since the probate tribunals of original jurisdiction are, under our political system, county or local tribunals, the main facts of this character are often a matter of public notoriety ; but it is not upon this consid- eration alone that the judge passes the instrument to probate upon so brief a scrutiny. He relies considerably upon the citation of interested parties, which issued before the petition for probate could come up for a hearing ; and the interested parties not having appeared or making no opposition, he readily presumes, upon slight proof of execution, not only that the will is what it purports to be, but that the great facts essential to the validity and operation of the instrument con- cur in making the probate effectual. A certain sobriety and decorum is preserved in these judicial proceedings, as at the funeral ; as though some painful but necessary solemnity over iSchoul. Exrs. § 65. 2 Sworn, as some late codes require. 172 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § I/Q the deceased must be carried out without probing offiaously the feelings and disposition of the surviving family, but rather anticipating their presumed wishes. § 170. In Contested Cases, the Burden of Proof is upon the Propounder of the Will. — But whenever a contest arises over the will, — a situation of affairs unlikely to occur before the bereaved family, heirs, kindred, and interested parties have had private warning, that some of their own number are too profoundly dissatisfied not to break through this atmosphere of decorum, and expose to scandal the home relations of the decedent, — it becomes a preliminary inquiry upon which of the litigating parties rests the burden of proof. There is, more however in appearance than reality, a variance of opinion expressed in the reports on this point. The true rule we conceive to be this : that wherever the capacity or incapacity of the testator is called in question, whether because of infancy or insanity, or on any other of the grounds we have already considered, and so, too, if the testator's death, residence within the jurisdiction, or any other fact essential to establishing a probate of the instrument is dis- puted, the formal burden of proof is upon the executor, or those who set up the particular will in controversy. And this rule holds good in whatever form the trial should properly be conducted, whether in original forum of probate, or upon appeal, so long as the issue is directly taken upon the probate of that identical will.^ This, as Judge Redfield has observed, is in analogy to proceedings upon other instruments or contracts,^ which are contested either upon the ground of want of execution; or want of capacity in the person contracting, or of fraud in 1 I Greenl. Evid. § 77; I Redf. Wills, says Baron Parke, "is the great fact 31, and cases cited; and see cases in- which the witness to the will has to fra. speak to when he comes to prove the 2 But we should note that probate, as attestation; and this is the true reason understood at the present day, is a for- why a will can never be proved as an mality to which other instruments or exhibit, viva voce, in chancery, though contracts are not subjected by any a deed may be; for there must be lib- analogy, being a unique sort of proce- erty to cross-examine as to sanity." dure appropriate to wills. "Sanity," Barry i/. Butlin, 1 Curt.; 637. § 171 LAW OF WILLS. [PART II. procuring the contract. In all of which cases the formal burden of proof being upon the party setting up the instru- ment, he is allowed to go forward in the proof and in the argument.^ § 171. The Rule of Burden of Proof sometimes laid down otherwise as to Mental Capacity. — There are, nevertheless, numerous cases in which the rule as to burden of proof ap- pears to have been laid down by eminent judges to the con- trary. These cases have direct reference to issues of mental soundness and unsoundness ; and to this subject our present inquiry will be chiefly directed. The confusion in the legal mind on this subject comes perhaps from exJDatiating beyond the facts which the particular case presented for decision. Often, where it might hastily be inferred that the burden of proof was placed originally upon contestants of the will instead of the proponent, the court had in reality presumed capacity from a slight presentment of facts by such proponent, and treated the burden as actually so shifted in consequence, that the contestant would be put necessarily to the proof of estab- lishing incapacity against this presentment. And, again, as mental derangement may be followed by mental soundness, or vice versa, and the disorder itself is subject to lucid intervals, it is obvious that the burden of proof must in such cases be lightly adjusted, and slide almost imperceptibly from one litigant to the other. Surely one who offers the will for probate cannot be expected to go far with testimony to prove a negative. It is only in this delicate investigation of mental condition, and, moreover, of free volition in the testator (of which latter subject we shall treat in the next chapter 2) that judicial variance may be expected. Rarely do such other essential facts as death, last place of residence, or full age, elicit dis- cussion of this kind at all ; and if ever they did, the point at issue being so comparatively simple, we should see more clearly that it is the proponent, not the contestant of the ' I Redf. Wills, 31 ; also cases infra, ' See next c. as to undue influence, where sanity is the issue. etc. CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 173 will, who moves in advance, and carries the general burden of proving whatever may be requisite to establishing the particular instrument in a court of probate as the last will and testament of the deceased. § 172. Burden of proving Capacity; Presumption in favor of Seuiity ; Confusion of Rules. — The issue of great consequence being then whether or not the testator was of sound mind when the will was executed, two principles are laid down which seem to conflict. The first, as already stated, is that upon the proponent rests the general burden of establishing capacity, or, in other words, sanity. The second is, that a presumption arises that every adult is compos mentis, and con- sequently that the party who alleges insanity has the burden of proving that unnatural condition. In this apparent con- tradiction originates our present confusion ; and from the abundant dicta to be found in the reports, one might argue, as an abstract proposition, that the burden was on the one party or the other, as best suited his purpose." § 173. English Authorities on this Subject. — In England it is laid down that if a party impeaches a will on account of insanity in the testator, he must establish such insanity, by clear and satisfactory proof ; for the instrument purporting on its face a legal act, sanity must be presumed until the contrary is shown. ^ At the same time it should be borne in mind that the presumption of sanity is not to be treated as a legal presumption, but at the utmost as a mixed presumption of law and fact (if not as a mere presumption of fact) ; that is, an inference from the absence of evidence to show that the testator had not that mental soundness which experience shows to be the general condition of the human mind. If, therefore, a will is produced before a jury, and its execution proved, and no other evidence offered, the jury would be properly instructed to find for the will. And if the party opposing the will gives some evidence of incompetency, the 1 I Wms. Exts. 20, citing Groom v. Thomas, 2 Hagg. 434, and Burrows v. Burrows, i Hagg. 109. § 173 LAW OF WILLS. [PART II. jury may, nevertheless, find in favor of the will if it does not distutib their belief in the testator's competency. And in such case the presumption of competency would prevail. Still the onus probandi lies in every case on the party alleging a will, and he must satisfy the jury that it is the will of a capable testator ; and when the whole matter is before them on evidence given on both sides, if the evidence does not satisfy them that the will is the will of a competent testator, they ought not to affirm by their verdict that it is so.^ The same considerations should apply where it is a judge instead of a jury who decides upon the evidence. On the whole, therefore, the English rule appears to be, that if a will rational on the face of it is shown to have been duly executed, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances not merely opposed to, but sufficient to counterbalance that presumption, the decree must be against the validity of the will, unless the evidence, taken altogether, is sufficient to establish affirma- tively that the testator was of sound mind when he executed it.2 Such a statement seems to import, and correctly too, that the burden being on the proponent of the will' through- out, he has made out his prima facie case of testamentary capacity when he shows a rational instrument properly signed and witnessed. But, on the other hand, the evidence estab- lishing due execution should leave a favorable impression of competency ; and testamentary incapacity may be estab- lished by th.e mere cross-examination of the proponent's witnesses, without any direct evidence on the part of the contestant.^ 1 I Wms. Exrs. 2i; Sutton v. Sadler, = i Jarm. Wills, 35, note; Symes v. 3 C. B. N. S. 87; Symes v. Green, i Green, supra. Sw. & Tr. 401; Keays v. M'Donnell, ' Keays v. M'Donnell, 6 Ir. Eq. 611. 6Ir. Eq. 611. The rules stated in the " The strict meaning of the term' o« as text are formulated from Sutton v. Sad- probandi ' is this," says Baron Parke : ler, which is a leading case in point, "that if no evidence is given by the Here vfas an action by the heir-at-law party on whom the burden is cast, the against devisees, and the validity of a issue must be found against hiui. In ivill was involved. all cases this onus is imposed on the 1176 CHAP. IX.] PROOF OF, CAPACITY AND INCAPACITY. § 174 § 174. American Authorities on this Subject. — These English authorities embody the best elementary ;-ules, we think, for resolving a conflict of principles, which, after all, is more apparent than real ; holding the proponent to his gen- eral proof, while giving to the presumption of sanity all that can be fairly claimed for it. From this point of view, the presumption in favor of sanity where testamentary causes are tried is not a legal one, but one of fact; and the prima facie case in favor of the proponent, when the will is assailed as the offspring of insanity, not only does not relieve him from establishing capacity as the ultimate conclusion upon the whole evidence, but is itself the result of facts he has established at the outset, a first stage reached in propounding the will. The will, not an irrational one on its face, is shown to have been properly executed and witnessed ; hence it may fairly be presumed that the testator was competent and un- restrained in disposing of his property ; but these presump- tions, being of fact or mixed law and fact, may be rebutted, and the proponent has nothing more than a prima facie case in his favor. In various States, however, the presumption in favor of sanity has been styled a legal presumption, and appears to have been so treated in testamentary causes. In an impor- tant Massachusetts case, a majority of the court ruled that the legal presumption, in the absence of evidence to the contrary, is in favor of the sanity of a testator ; a statement from which one judge dissented, though all the court agreed that this does not change the burden of proof, which always rests upon those seeking the probate of the will. ^ The New York doc- trine ( agreeably to the common law and the local statute ex- pression) is stated quite recently to the same eifect : namely, that the legal presumption, to begin with, is that every man party propounding a will; it is in gen- ing witnesses upon that point. Barry w. eral discharged by proof of capacity Butlin, I Curt. 637. and the fact of execution." And he 1 Baxter v. Abbott, 7 Gray, 71, 83 further proceeds to show that the fact (1856), Thomas, J., dissenting. Cf. of capacity is so far involved in the Crowninshield v. Crowninshield, 2 Gray, proof of the execution, that the other 524. party may cross-examine the subscrib- 177 § 174 LAW OF WILLS. [pART IL is compos mentis, and the burden of proof that hje is non compos mentis rests on the party who alleges that condition of mind. "But it is also the rule," adds the court, "that, in the first instance, the party propounding the will must prove the mental capacity of the testator."^ Other opinions are expressed to the same effect.^ A discrepancy of statement in this respect, however, is sometimes referred to a construc- tion of the local statute of wills. ^ This difference, though much dilated upon, is more verbal than substantial, as commonly applied. All, or most, of our decisions agree in substance, that whether as a legal pre- sumption or as a presumption of fact or mixed presumption, amounting only to 2, prima facie case, there exists, upon proof that the will, a natural one on its face, was duly executed by an adult not otherwise incapacitated, a presumption in favor of the testator's sanity which they who impeach the will are bound at this stage to overcome.* And the larger and better class of American authorities point, moreover, to the conclusion that the court or jury trying the case must, upon the whole evidence, be satisfied that the testator was of sound mind ; so that if there be inevitable doubt left on this point from all of the testimony, the will cannot be considered as proved.® This conforms practically to the English rule already stated.* 1 Harper v. Harper, i N. Y, Supr. Wilbur, 129 111. 392; McCuUoch v. 351, citing Delafield v. Parish, 25 N. Campbell, 49 Ark. 367; Allen v. Grif- Y. 9. fin, 69 Wis. 529; Wagner v. Ziegler, ^ See Perkins's ample note to i Wms. 44 Ohio St. 59. Exrs. 21, Am. edition; Aikin v. Week- ^ Crowninshield v. Crowninshield, 2 erly, 19 Mich. 482. Gray, 524; Delafield v. Parish, 25 N. ' See Hoar, J., in Baldwin v. Parker, Y. 9; Rdbinson v. Adams, 62 Me. 369; 99 Mass. 79; Knox's Appeal, 26 Conn. McGinnis v. Kempsey, 27 Mich. 363; 20. I Jarm. Wills, 38, Bigelow's note; Tur- * I Wms. Exrs. 21, Am. Ed., note by ner v. Cook, 36 Ind. 129; Tingley v. Perkins; Cotton w. Ulmer, 45 Ala. 378; Cowgill, 48 Mo. 291; Williams v. Rob- Thompson V. Kyner, 65 Penn. St; 368; inson, 42 Vt. 658; Aikin v. Weckerly, Perkins v. Perkins, 39 N. H. 163; 19 Mich. 482; Knox's Appeal, 26 Conn. Kempsey v. McGinnis, 21 Mich. 123; 20; Renn v. Lamon, 33 Tex. 760; Herbert v. Berrier, 81 Ind. i; Day v. Thompson v. Kyner, 65 Penn. St. 368; bay, 2 Green Ch. 549; Fee v. Taylor, Boardman v. Woodman, 47 N, H. 120; 83 Ky. 259; 130 111. 69 ; Wilbur v. Wetter v. Habersham, 60 Ga. 193; 26 « Supra, § 173. i;8 CHAP IX.J PROOF OF CAPACITY AND INCAPACITY. § 1 75 §. 175- ^be Same Subject; whether Subscribing Witnesses must first testify as to Insanity. — The more difficult inquiry suggested in this connection relates to the duty of offering positive proof of capacity from the witnesses to the will. One would suppose that the simple fact that two witnesses or more ( according as the local statute may have prescribed ), append their signatures in the execution of the will, strength- ens materially any presumption which may arise in favor of the testator's sanity, or ^i^ prima facie case on behalf of the will. For why should two or three have signed thus, unless intending some sort of a voucher that the testator appeared to know what he was about? Though, to be sure, if any Penn. St. 404; Day v. Day, 2 Green Ch. S49; 2 Rich. 229. " In the course of the trial the balance of testimony may fluctuate from one side to the other, but the burden of proof remains where it was at the outset; and unless at the close of the trial the balance is with the proponent, he must fail. It is not suihcient that the scales stand even; there must be a preponderance in his favor." Per curiam in Williams v. Robinson, supra. In some opinions quite extreme ground is taken against any presump- tion of a testator's sanity. Williams v. Robinson, 42 Vt. 658, is a case in point. One would suppose, from the remarks here made by the court, that the capac- ity of the testator must be affirmatively proved by the proponent of any will, contest or no contest; and that no pre- sumption arises in favor of the will, even upon proof of its due execution. But allowance should be made for warmth of expression in discussing an abstract question; and the decision bore simply in favor of placing the burden throughout upon the party propound- ' ing the will, and not the contestant. See also Robinson v. Adams, 62 Me. 369; Knox's Appeal, 26 Conn. 20. "The presumption that the person making a will was at the time sane, is not the same as in the case of the making of -other instruments ; but the I sanity must be proved." Gerrish v. Nason, 22 Me. 438. And see Cilley 11. Cilley, 34 Me. 162. And opinions like these distinguish wills from such instru- ments as a deed or contract, which, if executed, are presumed to be rationally executed; or construe in support of their theory such local statutes as pro- vide that " all persons of sound mind " may make wills. But in Higgins v. Carlton, 28 Md. I If, not only is the distinction taken between deeds and wills repudiated, but the presumption of sanity is asserted quite as strongly in the other direction. And here it is ruled with emphasis that the burden of proof lies upon the per- son who asserts unsoundness of mind. See also the judicial remarks in Sloan V. Maxwell, 2 Green Ch. 580; Tyson V. Tyson, 37 Mo. 567; Grubbs v. Mc- Donald, 91 Penn. St. 236. The safer opinion steers between these two extremes; and nothing better reconciles the discrepancy of opinions as thus expressed (for, after all, some discrepancy must be admitted) than to compare the cases by their respective decisions upon the facts actually pre- sented. If we do this, we shall find the conflict reduced to a very narrow range. Where no evidence of incapacity is produced, very slight evidence of capacity should, at all events, be enough. 79 § 175 LAW OF WILLS. [PART II. such witness were closely questioned in court, his testimony might prove the reverse of favorable on this point. ^ Unfor- tunately, in this country wills are witnessed out of good nature by persons who seem quite heedless of the responsi- bility they incur in so doing ; and it is distinctly ruled that by the mere fact of attestation no presumption is afforded of any opinion which the witness may have had, favorable or unfavorable, concerning the sanity of the testator.^ But the cases on this point are not quite harmonious ; and we may still infer that wherever execution is proved of a will natural and regular upon its face, and there is an absence of further evidence upon the point of sanity, the proponent ought to be entitled to probate.^ This brings us to the real practical difference between American cases which hold to the presumption of sanity with greater or less force : namely, that in some courts, con- trary to the general opinion, it is held that the party pro- pounding a will must not only prove execution, but must also offer positive proof of his testator's capacity. Thus, in Massachusetts practice, the subscribing witnesses are called upon to testify not only concerning the fact of execution, but as to the testator's mental condition besides. Without such proof, it is said, no will can be set up.* Should their testi- mony be favorable, the prima facie case in favor of probate is no doubt strongly fortified ; if the reverse, little remains 1 By English tribunals, a subscribing Thompson v. Kyner, 65 Penn. St. 368. witness who deliberately purposes to And see Williams v. Robinson, 42 Vt. testify against the will, is looked upon 664, 665. with great disfavor. In Tatham v. » Perkins v. Perkins, Sg N. H. 169, Wright, 2 Russ. & My. i, where two and cases cited; Baxter v. Abbott, 7 subscribing witnesses had declared they Gray, 71; Delafield v. Parish, 25 N. Y. would testify against the testator's 9; Wilbur v. Wilbur, 129 111. 392. capacity, Tindal, C. J., made this se- * Brooks v. Barrett, 7 Pick. 94; vere comment : " The real question is, Crowninshield v. Crowninshield, 2 Gray, whether these witnesses are to be be- 524, /«r Thomas, J.; Gerrish v. Nason, lieved upon this evidence, in contradic- 22 Me. 438. "The presumption, there- tion to their own solemn act in the fore, that the person making a will was, attestation. . . . That is the problem at the time, sane, is not the same as in to be solved." And see § \%\,post. the case of the making of other in- 2 Baxter v. Abbott, 7 Gray, 71; struments, ... but the sanity must be Boardman v. Woodman, 47 N. H. 120; proved." 22 Me. 438, 441. 180 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 1 75 of the presumption, legal or otherwise, in favor of sanity. But even in Massachusetts, were all the witnesses to the will dead, incapable, or in unknown parts, so that none could be produced, the execution of the will could be proved by evi- dence of their handwriting ; and upon this proof, without other evidence showing sanity or insanity, the proponent would be entitled to probate.^ In many, perhaps most, of our courts, no evidence of the testator's competency, nothing beyond the mere formal proof of execution in aid of the natural presumption of sanity is requisite in order to make out z.prima facie case in favor of the will.^ And on the whole, American authority preponderates to the view that when the witnesses produced for probate are not only questioned upon the fact of execution, but asked besides whether they regarded the testator as of sound and disposing mind and memory, this last is form merely, or at least precautionary, and not indispensable to establishing the presumption of capacity upon which probate should be granted.^ 1 Baxter v. Abbott, 7 Gray, 71. 2 Perkins v. Perkins, 39 N. H. 163; Beaubien v. Cicotte, 8 Mich. 9; TaiT v. Hosmer, 14 Mich. 309; Thompson v. Kyner, 65 Penn. St. 568. That the party propounding the will is not obliged to examine the witnesses, in the first instance, beyond the fact of execution, and may then wait till some impeachment of the instrument is of- fered by counter-proof, conforms to the English rule. Supra, § 173; Sutton V. Sadler, 3 C. B. N. S. 87. * See Thompson, C. J., in Thompson V. Kyner, 65 Penn. St. 368. And Bell, C. J., in Perkins v. Perkins, 39 N. H. 163, 168, explains this practice (which pertains in Pennsylvania, New Hamp- shire, and many other States as well as Massachusetts), consistently with the presumption of sanity. " Its object is," he says, " that if it appears that there is either doubt or suspicion on the ques- tion, that doubt may be removed before the estate is placed in the hands of a man who may prove to have no title to I it. . . . That the rule of law, requiring that the attesting witnesses to a will shall be examined in relation to the sanity of the testator, is not founded on the absence of a presumption that the testator is sane, nor on a necessity that the propounder of the will should offer further evidence of the fact of the testator's sanity, is, we think, ap- parent from the state of the law as to cases where, from their death, or ab- sence from the jurisdiction, the wit- nesses cannot be produced, or where, from loss of recollection, they are un- able to testify. As to these cases, proof of the handwriting of the witnesses, and, in some jurisdictions, of the hand- writing of the testator, is competent proof to be submitted to the jury of the due execution of the will. In such cases, there can, of course, be no ex- amination of the witnesses as to the sanity of the testator, and it is nowhere laid down that the party is under any obligation to produce any other evi- dence upon that point, except the testi- 81 § 1/6 LAW OF WILLS. [part II. § 1^6. When Evidence of T/nsoundness appears from I!z- atuiaation of Witnesses, Proponent must overcome it. — According to the better opinion, if witnesses to the will, in the course of their examination, give testimony which leaves a genuine doubt of the sanity of the testator at the date of execution, the proponent cannot rely upon any. general pre- sumption of sanity in aid of his proof that the instrument was formally executed; he cannot claim that no evidence of insanity has been given by the contestant or, if given, that it will no more than balance the presumption on his side; but having himself the general burden of proving capacity, he must turn the scale, or the will he offers is not established. ^ There are States, it is true, in which the court lays down a rule less favorable in expression to the party who assails a will. Testamentary capacity, observes a Pennsylvania case, is the normal condition of one of full age, and the affirmative is with the party who undertakes to call it in question ; and this affirmative must be established, not in a doubtful, but in a positive manner.^ And other dicta may be found, bearing quite as strongly against the contestant who sets up insanity.^ But when, aside from such dicta, we examine the facts passed upon by the court, we shall find that the decision quite accords with the proposition we have advanced ; that the mony of the attesting witnesses. From 482, and cases cited. Here three wit- the rule of law thus stated, we think nesses testified. One of them appears that, although the subscribing wit- to have given no opinion as to the tes- nesses, if they can be produced, must tator's sanity; and of the other two, be examined in relation to the sound- one testified that the testator was sound, ness of the testator's mind, yet the and the other that he was unsound, party propounding a will for probate See also Sutton v. Sadler, 3 C. B. N. S. is under no general duty to offer any 87; Symes v. Green, i Sw. and Tr. 401. evidence of the testator's sanity, but See Keays w. M'Donnell, 6 Ir. Eq. 611, may safely rely upon the presumption that it is enough for the contestant to of the law that all men are sane until break down the witnesses by a cross- some evidence to the contrary is of- examination. And see supra § 173. fered." ^ Grubbs v. McDonald, 91 Penn. St. Statutes sometimes undertake to spec- 236, citing other Pennsylvania cases on ify the proof required. As in Minne- this point. sota, where the burden is put ultimately ' Delafield v. Parish, 25 N. Y. 9, upon the proponent of the wiU. 40 propositions laid down by a majority Minn. 371. of the court; Frear v. Williams, 7 Baxt. 1 See Aikin v. WeoketLy,, 19 Mich. 550; 44N. J. Eq. 154. 18,2 CHAP, IX.] PROOF OF CAPACITY AND INCAPACITY. § 1 77 witnesses to the will, so far as their testimony had been drawn out, affirmed the capacity of the testator ; in short that there was no equipoise, but a turn of the scales in favor of sustaining the will. At such a posture the proponent may well rest his case unless the contestant has some affirmative proof of insanity to offer. But certainly, where there is evidence tending to sliow insanity, the court must not rule peremptorily against those who oppose the will.^ On an issue as to testamentary capacity, where the evidence is conflicting, after a fair trial before a jury (as our probate appeals from the county judge as trier are commonly con* ducted), to whom the proof is submitted under proper instruc- tion, the finding of the jury concludes the point. § 177- Production of Subscribing Witnesses if possible. — ^ Wherever a will is offered for probate, the subscribing wit- nesses are the primary and chief resource for establishing the instrument to the satisfaction of the court or jury. These witnesses, varying in number under our local enactments] from two to three or more, should be produced if possible. In case of a contest ; but in uncontested wills, a less number, perhaps one, may usually suffice ; while in some States, even when opposed, the proponent calls only such witnesses as may give him a good prima facie case, and there rests.^ If a witness be dead, incapable, or in parts unknown, his hand- writing is proved, and such issues as the present must neces^ sarily be determined without him. As to the production, if possible, of all the subscribing wit- nesses by the party propounding the will, where an issue is made, the American rule is not uniform. In Vermont, for instance, all must be produced and examined by the pro- ponent unless this is shown to be impracticable.^ The New Hampshire rule favors summoning all who are' alive, capa;ble and within the jurisdiction where controversy arises.* In 1 Reichenbach v. Ruddach, 127 Penn. Alexander v. Beadle, 7 Coldw. 126. A St. 564. witness not within reach of State pro- * Thornton v. Thornton, 39 Vt. 122. cess need not be produced. 60 Vt See as to attestation, etc., /orf. 524. 8 Thornton v. Thornton, 39 Vt. 122; * Whitman v. Morey, 63 N. H. 448. 183 § 178 LAW OF WILLS. • [PART II. Connecticut, on the other hand, the party propounding the will need not produce all within reach of process at his own instance, nor unless the contestant insists upon it ; and the latter, by not insisting, will be presumed to have waived his privilege in that respect.^ Still less ought the proponent, if he has produced all these witnesses in court, to be com- pelled invariably to ask each one to testify ; for any subscrib- ing witness he may have omitted, the contestant can call to the stand ; and one does not choose to weaken his own cause. A subscribing witness, after being examined by the one party may be cross-examined by the other. '^ § 178. Testimony of Subscribing Witnesses Important, but not Conclusive. — Great weight is attached to what these sub- scribing witnesses may have to say concerning the testator's apparent mental condition and all the circumstances sur- rounding the execution of the will. Examination and cross- examination may elicit from them much that is vitally impor- tant on the issue of testamentary capacity. But though these parties are witnesses for the will, and the proponent may be bound to produce or account for them, or even to examine all in turn, they are not his witnesses in any such sense as to debar him from discrediting their testimony whenever it bears against the instrument he has offered for probate. The final decision of the case does not depend upon them, but upon all the evidence adduced on both sides. And the fact that any or all of the subscribing witnesses testify against the testator's mental capacity, does not conclude the propo- nent, if other witnesses testify favorably ; for the will may be established upon suflficient proof in opposition to the tes- timony of the subscribing witnesses.* § 179. English Practice as to producing the Subscribing 'Wit- nesses. — The English ecclesiastical courts, under the system 1 Field's Appeal, 36 Conn. 277. At- Martin v. Perkins, 56 Miss. 204; Frear testation, /orf. v. Williams, 7 Baxt. 550, 556; Alexan- '^ He may be thus discredited. 64 Md. der v. Beadle, 7 Coldw. 126; Garrison 138. V. Garrison, 15 N. J. Eq. 266; Turner ' Thornton v. Thornton, 39 Vt. 122; v. Cheesman, ib. 243. 184 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § l8l prevalent in that country before probate courts were insti- tuted, had no jurisdiction of wills affecting real estate ; and disputes of title under such wills were usually adjudicated in the common-law courts on the issue of devisavit velnon, or else in an action of ejectment. To these courts, an equity tri- bunal would send an issue of this kind for trial, under its own directions ; and one standing direction was, that in proving a will, the proponent should produce all the subscribing wit- nesses at the trial, unless this should be shown impracticable or the opposite party waived the requirement.* The general rule in English courts, when such issues are tried, is, that the proponent of the will must produce all the subscribing witnesses available and make them his witnesses, giving to the contestant an opportunity to cross-examine them.2 But under peculiar circumstances the court will dis- pense with this necessity, especially if all the witnesses have been produced in court by the proponent, so that the other party might have called the omitted witness.^ § 1 80. Declaration of Deceased or Absent Subscribing 'Wit- nesses Incompetent as to Sanity or Insanity. — The declarations of a deceased subscribing witness, or of one beyond the jurisdiction, tending to show that he thought the testator sane or insane, are incompetent testimony on the issue of sanity or insanity.* § 181. How 'Witnesses may test Capacity for themselves; they should not execute unless satisfied. — Dr. Taylor lays down this rule for testing the mental capacity of a person to do an act requiring a sound and disposing mind. "If a 1 Story Eq. Jur. § 1447; i Redf. situation of the parties litigant was that Wills, 34; Ogle V. Cook, I Ves. Sen. a bill was filed, not by the devisee seek- 177; Tatham v. Wright, 2 Russ. & ing to establish the will, but by the heir- My. I. at-law calling upon the court to declare 2 lb.; Tatham v. Wright, 2 Russ & it void. My. l; Barry v. Butlin, I Curt. 637; ♦ Baxter z-. Abbott, 7 Gray, 71 ; Sewall Keays v. M'Donnell, 6 Ir. Eq. 611. v. Robbins, 139 Mass. 164; Boardman 8 Lowe V. Joliffe, i W. Bl. 365; Tat- v. Woodman, 47 N. H. 120; Thompson ham V. Wright, supra. v. Kyner, 65 Penn. St. 368. See Wil- In Tatham v. Wright, the peculiar liams v. Robinson, 42 Vt. 664. 185 § 1 81 LAW OF WILLS. [PART 11. medical man be present when the will is made, he may easily satisfy himself of the state of mind of the testator by requir- ing him to repeat from memory the mode in which he has disposed of the bulk of his property. Medical men have sometimes placed themselves in a serious position by becom- ing witnesses to wills under these circumstances, without first assuring themselves of the actual mental condition of the testator. It would always be a good ground of justification, if, at the request of the witness, the testator had been made to repeat substantially the leading provisions of his will from memory. If a dying or sick person [or any other one] cannot do this without prompting or suggestion, there is reason to believe that he has not a sane and disposing mind." ^ This rule meets the warm approval of so high an American authority as Judge Redfield ; ^ but it must be confessed, that in this country, at least, testators are not disposed to submit to catechising from those whom they may have called in to witness their wills, nor even to state to them confidentially the details of testamentary disposition. The bystander may however, on his part, well refuse to take the responsibility of a subscribing witness, where he suspects that the will is an absurd or unjugt one, or strongly doubts whether the testator himself freeily and intelligently executes it. Persons in these days are of too accommodating a disposition about lending their signatures in such a case and then stultifying them- selves at the probate.^ One should only subscribe as witness * Ray Med. Jur. 658. aspect. One who put his name as a ^ Redf. Wills, 95. witness to the execution of a will, while ' Jvi4ge Redfield condemns in un- he was conscious the testator was not in qualified terms the practice, too common the possession of his mental faculties, in the United States, of heedlessly wit- places himself very much in the same nessing a will without regard to the attitude as if he had subscribed as wit- propriety of its execution under the pe- ness to a will which he knew to be a culiar circumstances. " It seems to be forgery, which every honorable man considered," he justly observes, " that could only regard as becoming acces- they are only witnesses to the act of sory to the crime by which the will was signing. But when it is considered that fabricated; so that it is not improbable the witnesses to a will must certify to that the want of proper appreciation of the capacity of the testator, as well as the discredit resulting from the act of to the act of execution, the transaction becoming a witness to the execution begins to assume a somewhat different of a will, by one confessedly incompe- 186 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 1 82 when he can conscientiously testify without reserve in favor of the will and its proper execution ; and it is for the true interest of every rational testator to procure witnesses who will stand resolutely by the transaction against all insidious or open opposition to the probate. § 182. The Same Subject. — "No person," says Chancellor Walworth on this point in clear and emphatic language, " is justified in putting his name, as a subscribing witness, to a will, unless he knows from the testator himself that he under- stands what he is doing. The witness should also be satis- fied, from his own knowledge of the state of the testator's mental capacity, that he is of sound and disposing mind and memory. By placing his name to the instrument, the wit- ness, in effect, certifies to his knowledge of the mental capac- ity of the testator, and that the will was executed by him freely and understandingly, with a full knowledge of its con- tents. Such is the legal effect of the signature of the wit- ness, when he is dead, or is out of the jurisdiction of the court." 1 tent to the proper understanding of the promised his honor. And if a profes- instrviment, may, and probably does, sional man, who fully comprehends result chiefly, with us, from the general what the law expects of his testimony, misapprehension of the law upon the he cannot excuse a folly so disastrous subject, rather than from any settled in its consequences, disposition to disregard its dictates if ^ Scribner v. Crane, 2 Paige, 147. correctly understood." i Redf. Wills, 96. See also Garrison zf. Garrison, 15 N. J. That the person who knows nothing Eq. 266. of the contents of the will which he is Lord Camden early pointed out how called upon to witness, signs at a disad- peculiar a stress the Statute of Frauds vantage, and might, when the instru- had laid upon the quality of the wit- ment is afterwards exposed for probate, nesses to a testament as distinguished appreciate circumstances attending the from those in other transactions. A will, act of execution, while the testator was he observes, is the only instrument in feeble, failing in mind, and surrounded this statute required to be attested by by advisers or interested parties, differ- subscribing witnesses at the time of exe- ently from what he did when present cution. " It was enough for leases and at the execution and participating in the all other conveyances to be in writing, act, is obvious. This is a peril to which These were all transactions of health, the testator has exposed the will by his and protected by valuable considerations chosen secrecy. But, aside from such and antecedent treaties. The power of a consideration, the witness who sub- a court of equity was fully sufficient to scribes and then discredits the instru- meet vnth every fraud that could be ment at the probate, has seriously com- practised in these cases, after the con- 187 § 1 84 LAW OF WILLS. [PART II. § 183. Effect of a Statement in the Attestation Clause, vouching for the Testator's Sanity. — The attestation clause in a will might well be drawn so as to certify expressly the belief of the subscribing witnesses that the testator at the time of execution was of sound mind and memory. To con- tradict under oath at the trial such a writing must greatly discredit a subscribing witness unless he can account for the discrepancy; as for instance, by showing that he signed doubtfully and with little opportunity to judge, and that the contents and character of the will, when exposed to view, convinced him to the contrary ; and even thus, his honest opinion should carry very little weight in the case.^ § 184. Proponent goes forward and has Right to open and close the Case. — Since the party setting up the will has the general burden to establish it, the rule is that he goes for- ward in the proof and has the opening and close of the case ; ^ and such is the general practice where sanity is at issue.^ But in Maryland the practice conforms to the extreme view tract was reduced to writing. But a belong to him, by remembering all and will was a voluntary disposition, executed forgetting none. . . . Who, then, suddenly (not unfrequently) in the last shall secure the testator, in this impor- sickness, oftentimes almost in the article tant moment, from imposition? Who of death. And the only question that shall protect the heir-at-law, and give can be asked in this case is, Was the the world a satisfactory evidence that testator in his senses when he made it? he was sane? The statute says, three And consequently the time of execution credible witnesses." Hindson v. Ker- is the critical minute that requires guard sey, 4 Burns Eccl. Law, 85, 88. See and protection. Here you see the rea- also Tindal, C. J., in Tatham v. Wright, son why witnesses are called in so em- 2 Russ. and My. i, cited supra, § phatically. What fraud are they to pre- 175. vent? Even that fraud so commonly ^ See Garrison v. Garrison, 15 N. J. practised upon dying men whose hands Eq. 266; pt. III. t. 3,posi. have survived their heads; who have '^ Supra, § 170. still strength enough to write a name or ' Boardman v. Woodman, 47 N. H. make a mark, though the capacity of 120; Robinson v. Adams, 62 Me. 369; disposing is dead. What is the condi- Brooks v. Barrett, 7 Pick. 96; Com- tion of such an object, in the power of stock v. Hadlyme, 8 Conn. 261 ; Taff z/. a few who are suffered to attend him, Hosmer, 14 Mich. 309; Kempsey v. wheedled or teased into submission for McGinniss, 21 Mich. 123; Williams v. the sake of a little ease? Put to the Robinson, 42 Vt. 658; Syme v. Bough- laborious task of recollecting the full ton, 85 N. C. 367; Theological Semi- estate of all his affairs, and to weigh the nary v. Calhoun, 25 N. Y. 422; I Bradf. just merits and demerits of those who 69, 94. 188 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 1 86 taken upon the presumption of sanity ; and caveators who assert unsoundness of mind are regarded as plaintiffs with the burden of proof upon them, and they have the right to open and close.^ The same rule obtains in Delaware.^ And in some States it is held that on appeal from the probate court in such trials the appellant becomes the actor and has the opening and close both in evidence and argument.* § 185. Questions ofValidity at Issue; Testamentary Capacity to be determined upon all the Evidence. — As a general rule, wherever the issue is presented, whether a certain document propounded is the last will of the deceased, all questions affecting the validity of the instrument may be presented.* And testamentary capacity or incapacity becomes in the main a decision of fact upon all the evidence presented.^ § 1 86. Testamentary Capacity at the Date of the Transaction the Real Point at Issue. — Nor should it be forgotten that testamentary capacity or incapacity at the precise date of the transaction is the real point at issue. Hence the condition of the testator's mind shortly before or after executing the in- strument, is only of importance so far as it establishes his mental condition when the execution actually occurred. The fact of a testator's subsequent suicide, of his sudden death from apoplexy, or even of an attack of apoplexy shortly before he made his will, bears simply upon that point, as we have already shown.® And from the instances already adduced one may gather how strong, on the whole, should be the 1 Brooke v. Townshend, 7 Gill, 24; and shortly after executing it was sus- Higgins J/. Carlton, 28 Md. 115; Tyson tained; also Brown v. Riggin, 94 111. V. Tyson, 37 Md. 567. 560. As to suicide, see Burrows v. Bur- 2 Chandler v. Ferris, I Harring. 460. rows, i Hagg. 109; Elwee v. Ferguson, * Rice (S. C.),3S, 271. See Runyon 43 Mo. 479; Duffield v. Robeson, 2 V. Price, 15 Ohio St. i, for the will in Harring. 375; Godden v. Burke, 35 La. appeals under the local statute. An. 160; Brooks v. Barrett, 7 Pick. 94. * Davis V. Rogers, i Houst. 44. Hence mental condition on the day be- 6 Gardiner v. Gardiner, 34 N. Y. 155. fore or the day after making a will is ^ Supra, §§ 119, 120. See Lewis's admissible to show mental condition on Will, 51 Wis. 1 01, where the will of one the day of making the will. Dyer v. who had an epileptic fit shortly before Dyer, 87 Ind. 13. 189 § l87 LAW OF WILLS. [PART 11. proof of a testator's insanity in order to invalidate the instru. ment offered as his last will and testament. § 187. Various Matters of Proof bearing upon this Issue; In- sanity once shown, presumed to continue, etc. — When the habit of general insanity is once shown to have existed not very long before the execution of the will in question, it will be so far presumed to have continued to the date of execution that the proponent must overcome this unfavorable presumption before the will he offers can be established.^ So, too, does proof that the testator was under guardianship for insanity quite discredit his will.^ But all unfavorable presumptions of this kind, whether stronger or weaker, may be removed by appropriate testimony ; * and it is sufficient for the proponent to show that such insanity had ceased to exist when the will was executed, or that it never existed at all, or that the will was made during some lucid interval or respite from the malady.* If, however, the insanity shown were something of a tem- porary nature, such as might be produced by fever, by a pass- ing delirium, by some accident, and not a fixed and habitual derangement, no strong presumption, and in many cases no presumption at all, would operate to disturb that prima facie case which the due execution of a rational will, by one appar- ently rational, makes out.* The earlier the date of the alleged insanity, as shown against the will, the less conclusive must, 1 Smith V. Smith, 4 Baxt. 293; Har- of lunacy. Rider v. Miller, 86 N. Y; rison v. Rowan, 3 Wash. C. C. 586; 507 ; supra, §§ 81, 82 ; Stevens v. Swinb. Wills, pt. 2, § 3; i Hall P. C. Stevens, 127 Ind. 560. 30; Townshend -u. Townshend, 7 Gill, " Supra, §§ 81, 82; Rice v. Rice, 50 10. " No position can be better estab- Mich. 448. lished than that, if a testator, a short * Cartwright v. Cartwright, i Phillim. time before making his will, be proved 100; Boyd v. Eby, 8 Watts, 66; Jack- to have been of unsound mind, it throws son v. Van Dusen, 5 Johns. 144; Goble the burden of proof upon those who v. Grant, 2 Green Ch. 629; supra, §§ come to support the will to show the 72, 88, 107. restoration of his sanity. This must be ^ Lord Eldon in Holyland, Ex parte, understood to mean a general and fixed 1 1 Ves. 1 1 ; Hix v. Whittemore, 4 Met. insanity." Halley v. Webster, 21 Me. 545; Staples v. WelUngton, 58 Me. 461, by Whitman, C. J. 453; Halley v. Webster, 21 Me. 461; 2 Supra, §§ 81, 82; Little v. Little, McMasters v. Blair, 29 Penn. St. 298; 13 Gray, 264. So as to an inquisition Townshend v. Townshend, 7 Gill, loi And see supra, §§/l22, 127. 190 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 1 88 of course, be the force of such testimony;^ and since inca- pacity just when the will was made is the true issue, proof that the testator was insane years after its execution is of very trivial consequence.^ There is, therefore, no such unqualified presumption of law as "once insane, always insane"; but the peculiar circum- stances connected with the malady of the individual testator must be considered in deciding its effect upon the burden of proof, or determining how far the same condition of mind may be inferred at any later or earlier period.^ § 1 88. The Same Subject: Proof of General Insanity. — As we have already seen, the character of the will itself, whether natural or unnatural, reasonable or absurd, just or unjust, bears strongly upon the issue of general insanity, and the more so when its provisions show a radical and unaccountable change from the testator's normal purpose. Yet we have also seen that one may capriciously change his purpose, and that a will which disposes harshly, foolishly, or unequally, is not to be set aside for that cause if the testator were really sane when he made it.* We have seen that, in connection with the contents and character of the will itself, the manner in which it was written and executed, may aid in establishing sanity or insanity. Thus, where the will was written out entirely by the testator's own hand, this fact bears greatly in its favor .^ Yet wills clearly expressed in the testator's own hand-writing have been set aside on proof of his insanity.® We have seen that a testator may be irritable in temper, morose, profane, miserly, squalid, dishonest, devoid of affection, proud, selfish, and yet, being sane, his will cannot be impeached ; '^ iHix V. Whittemore, and Halley v. v. Taylor, 7 Bush. 491; Whitman v. Webster, supra. Morey, 63 N. H. 448. 2 Taylor v. Cresswell, 45 Md. 422. « Supra, § 113 ; Cartwright v. Cart- s See Dewey, J., in Hix v. Whitte- wright, I Phillim. 90; Temple v. Tem- more, 4 Met. 545. pie, l Hen. & M. 476 ; Overton v. * Supra,%% Tj, 112; Coleman z».Rob- Overton, 18 B. Mon. 61. ertson, 17 Ala. 84; Stubbs v. Houston, « See Symes v. Green, I Sw. & Tr. 33 Ala. 555 ; Goble v. Grant, 2 Green 401 ; i Phillim. 90. Ch.629; Ross».Christmas, llred. 209; ^ Supra, §§ 77, 158; Lewis Re, 33 Baker w. Lewris, 4 Rawle, 356; Munday N.J. Eq. 219; Coleman v. Robertson 191 § i88 LAW OF WILLS. [part IL at the same time that all such manifestations, at and about the time of the testamentary act, may, especially if indicating a sudden perversion of the mind from its natural channel, be shown in connection with other facts, as tending to prove insanity.^ We have seen that mere eccentricity is not in- sanity ; and yet eccentric freaks may be a symptom of insanity.2 We have seen that one may make a valid will who does not manage his business affairs ; and yet incapacity to manage one's affairs is a circumstance for consideration.^ We have seen, in fine, that the intellect may flare wildly or burn low in the socket ; and yet that a testator has sufficient mental capacity to make a will when he understands fully and in detail, without prompting, what he is doing and how he is doing it, what is his property and how he wishes to dispose of that property among those naturally entitled to his bounty ; or in other words, so long as he has sufficient intelligence to understand and appreciate the testamentary act in its differ- ent bearings, and no longer.* 17 Ala. 84; Nicholas v. Kershner, 20 W. Va. 251. 1 Conely v. McDonald, 40 Mich. 150. 2 Supra, § 152. See Bristed v. Weeks, S Redf. 529. ' Supra, § 70; Errickson v. Fields, 30 N. J. Eq. 634. * Supra, §§ 70, 71. Banks v. Good- fellow, L. R. 5 Q. B. 567; Delafield v. Parish, 25 N. Y. 10; 42 Barb. 274. The circumstances in the Parish Will Case {sfi Barb. 274; affirmed, 25 N. Y. 10) are worth observing; that case being a remarkable one, as putting a practical limit to testamentary capacity which American courts have not since been disposed to transgress, though some had transgressed it before. The litigation came prominently before the public in 1857-1862 ; the Supreme Court of New York, on appeal from the Surrogate, rejecting three alleged codicils to the will of Mr. Parish, and the court of appeals affirming substan- tially the decision. Henry Parish, a man of good mental and moral per- I captions, refined and gentle suscepti- bilities, made his will in 1842. In 1849 (having, it appears, some heredi- tary tendency to mental disorder) he was suddenly struck with a severe apo- plexy, which was followed by perma- nent paralysis or hemiplegia on the right side, and by severe epileptic con- vulsions which continued until his death in 1856. After the attack, he ceased to be the mild, intelligent, and unruffled man he was before, frequently exhibited ungentlemanly and unbecoming con- duct, and underwent a decided mental change. From 1849 to the date of his death he had various painful diseases, such as cholera morbus, inflammation of the lungs, and the formation of an abscess under the jaw which threat- ened to suffocate him. He would suffer spasms or convulsions at regular inter- vals, extending from one or two weeks to six months or a year. During this whole period of intermittent agony, the sufferer could neither write nor speak, nor use language in any shape or furm 92 CHAP. IX. J PROOF OF CAPACITY AND INCAPACITY. § 1 89 § 1 89. The Same Subject : Proof of Lucid Interval or Res- toration. — The presumption being that general insanity once shown to exist still continues, unless of a temporary sort, like the delirium of drunkenness or a fever, the burden of proof to establish a lucid interval or mental restoration rests upon the party who asserts it.^ One who offers the will of a testa- for the expression of his mind. He could see, he could use his left arm, hand, and fingers vigorously, but he could not or would not write. He did not use the dictionary for pointing to words, and when block-letters were placed before him, he pushed them away; symptoms pointing to a diseased state of mind. Expressing himself by signs, gestures, and motions, those signs, gestures, and motions were often con- tradictory, uncertain, frequently misun- derstood, often not comprehended at all. His nurses would read the news- paper to him, but it did not appear that he comprehended what was read, or exhibited any intelligent interest in the reading. After the first attack he was never intrusted with money or the management of his own affairs, and was washed, dressed, and attended like a helpless child. He showed strange freaks and caprices, and had to be guarded from heedless exposure to danger. Not making it easily understood what he wished, any will he might make, even supposing him rational in making it, would necessarily depend upon the interpreter and the integrity of the in- terpretatioij. But as to the three codi- cils offered for probate, it seems that the counsel employed by the family to prepare them, read them to Mr. Parish in the presence of the subscribing wit- nesses, put to him the requisite formal questions, and received from him by sound and gesture, as usual, what were supposed to be affirmative replies. The counsel then guided the hand of Mr. Parish while he made his mark. This, at least, was the case when the first and second codicils were executed ; whether or not he received assistance in making his mark at the execution of the third was not clear. These codicils were drawn under the suggestion of Mr. Parish's wife, whose share in the estate was immensely increased by them. The Surrogate admitted the first codi- cil to probate, rejecting the second and third ; but under the decree of the Supreme Court, which was affirmed on final appeal, all the three codicils were rejected. We have already shown that the rule prescribing a test of capacity for making wills is here narrowed materially from that in Stewart ». Lispenard, 26 Wend. 255, which had hitherto been the lead- ing precedent for New York, if not most other States, on the subject. In that case what were supposed the last wishes of a testatrix, low, too low, in point of capacity, were respected. Here they were set summarily aside. But the discrepancy upon the decided facts is not so great after all; for in the Parish Will Case, codicils unjust in terms and likely to have been unfairly procured were swept aside in favor of a disposi- tion unquestionably rational; while in Stewart v. Lispenard, the disposition was just and reasonable, and accorded with the earlier intentions of the de- ceased; a further proof in connection with the instances elsewhere cited, that in the mind of court, jury, and the general public, the disposition to up- hold officious and condemn inofficious wills is too strong for logical consist- ency to restrain it. 1 Cartwright v. Cartwright, i Phillim. ico; White v. Driver, I Phillim. 88; supra, §§ no, 122; I Wms. Exrs. 22; Gombault v. Public Admr.,4 Bradf. 226; 193 § 190 LAW OF WILLS. [PART II. tor shown thus incapable should show, therefore, that the incapacity was, at least, so far removed when the instrument was executed that his reason shone out once more in the transaction.^ The nature and character of the will and the circumstances attending its execution may aid such an infer- ence ; but while no precise measure of proof is set by the law, there must be sufficient to overcome that unfavorable impression which is naturally produced when habitual insanity has been shown to have once existed.^ Lucid intervals in- volve too slight and wavering a departure from confirmed derangement of the intellect to serve as a very positive basis for testamentary capacity to rest upon : while proof that the testator had actually recovered his full mental health after the period of incapacity and before the will was made, well over- comes any presumption of insanity ; ' and yet it should be still observed that those once confirmed in this malady, however restored they may appear, are liable to a relapse when some new calamity comes with crushing weight or the faculties decay in the torpor of declining years. § 190. The Same Subject : Proof of Monomania or Insane Delusion. — Where only partial insanity, or rather monomania, is shown at the trial instead of general insanity, the burden of overcoming this proof and of establishing testamentary capacity, is certainly not so great, if we may trust the pre- ponderance of later English and American authority. For here, as we have shown, the will ought to stand unless the delusion, the monomania, colored, so to speak, the testamen- tary transaction, and made its particular disposition in effect the product of a deranged mind.* It is true that the mental disorder in question may have extended beyond its outward and visible symptom ; and that the insane delusion once Saxon V. Whitaker, 30 Ala. 237; Hal- * Brogden v. Brown, 2 Add. 445; ley V. Webster, 21 Me. 461 ; Lucas v. supra, §§ no, iii; Steed v. Galley, i Parsons, 27 Geo. 593; Harden v. Hays, Keen, 620; Gombault v. Public Admr., 9 Penn. St. 151 ; Goble w. Grant, 2 4 Bradf. 226; Snow v. Benton, 28 111. Green Ch. 629; Jackson w. Van Dusen, 306; Wright v. Lewis, 5 Rich. 212; 5 Johns. 144; Harden v. Hays, 9 Penn. Duffield v. Morris, 2 Harring. 375. St. 151 ; 44 N. J. Eq. 154. a See Snow v. Benton, 28 111. 306. * lb. * Supra, § 159. 194 CHAP. IX.] PROOF OP CAPACITY AND INCAPACITY. § I92 shown to exist, a prejudice is created against the will. But the most decisive circumstance against the will, in such a situation, would be that it was unnatural, inofficious, insane in character, tinctured by the delusion to the injury of sur- vivors. For if on the other hand, the jury or court trying the issue of capacity, should feel satisfied that the delusion had not affected the testator's general faculties nor perverted the particular disposition by testament, there is no reason why the will should not be upheld.^ The burden of proving capac- ity requires those who propound the will, at all events, to overcome whatever tends to prove that the delusion and the testamentary disposition were connected.* § 191. Proof of Drunkenness, etp. — The finding of an inquest that a person is an habitual 4runkard can be, at the utmost, no more than prima facie evidence of incapacity.^ And proof of intemperate habits and occasional fits of wild- ness, though indicating an impaired mind, is not sufficient to establish a total and permanent want of testamentary power.* Indeed, proof of instances of longer or shorter incapacity from drunkenness should not destroy the usual presumption of general capacity from the proper execution, but the party alleging incapacity should bring his proof to bear more directly upon the time of execution.^ § 192. Personal History of Testator in an Issue of Insanity, Autopsy, etc. — The whole personal history of the testator, mental and physical, may be freely ranged over upon the issue of his insanity.® And as insanity is often hereditary and the 1 See observations of Cockbum, C. J., * Julke v. Adam, i Redf. 454; Duf- in Banks v. Goodfellow, L. R. 5 Q. B. field v. Morris, 2 Harring. 375; Peck 549; supra, §§ 157, 160; Fraser v. Jen- v. Gary, 27 N. Y. 9. nison, 42 Mich. 206; Smee v. Smee, 5 ' Black v. Ellis, 3 Hill (S. C.) 68; P. D. 84. Andress v. Weller, 3 N. J. Eq. 604. See also Mullins v. Cottrell, 41 Miss. And see supra, §§ 127, 128; Elkinton 291; Wetterz/. Habersham, 60 Ga. 193; v. Brick, 44 N. J. Eq. 154; Watson's Hall V. Hall, 38 Ala. 131 ; Jenckes v. Will (N. Y.), Am. Dig. 1891. Smithfield, 2 R. I. 255. " Ross v. McQuiston, 45 Iowa, 145; 2 Smee v. Smee, 5 P. D. 84. Shailer v. Bumstead, 99 Mass. 119 ; s Leckey v, Cunningham, 56 Penn. Wright v. Tatham, 5 CI. & F. 670; St. 370; Lewis V. Jones, 50 Barb. 645. Dale's Appeal, 57 Conn. 127. § 193 LAW OF WILLS. [PART IL taint transmitted through one's ancestors, it is not considered impertinent to inquire into the sanity of his immediate pro- genitors or others of the family not remote.^ The value of this latter evidence appears to depend upon its immediate connection with the testator's own condition, as shown by medical experts ; ^ and where the malady cannot be traced directly in the blood, but the ancestor was collateral or remote, or his mental disorder by no means coincident with that of the testator, such proof can be of very slight conse- quence. While the diseased condition of the testator's body as shown by an autopsy may corroborate the proof of mental derangement deduced from manifestations during life, this should not be relied upon for furnishing the sole or even the primary evidence of the decedent's mental condition.^ § 193. Declarations, Letters, etc., of Testator, how far Admis- sible as to Mental Capacity. — Upon the question of mental capacity to make a will, declarations of the testator made at or about the time of its execution, and his conduct, are admis- sible as part of the res gesice.^ But his declarations made long after the will was executed, as, for instance, two years, are too remote in time to be admissible on this point.® To letters of the decedent a like principle applies. Such testimony cannot be strained to a remote purpose ; ® and yet clear, sensible, and perfectly coherent letters written by the testator shortly before and after making the will should bear strongly in favor of his general capacity, if such capacity be at issue.'' 1 Baxter v. Abbott, 7 Gray, 71; Snow ^ La Bau v. Vanderbilt, 3 Redf. 384; V. Benton, 28 111. 306. Fraser v. Jennison, 42 Mich. 206. * I Jann. 38, Am. Ed. Bigelow's note; * Fraser v. Jennison, supra. Eraser v. Jennison, 42 Mich. 206. Irrel- ' Blakely's Will, 48 Wis. 294. Let- evant evidence is not on such points ters written to a testator, and traced to admissible. 127 Penn. St. 564. his possession, afford of themselves no * La Bau v. Vanderbilt, 3 Redf. 384. proof of his capacity unless knowledge * Marx V. McGlynn, 4 Redf. 455; or act of the testator with regard to May V. Bradlee, 127 Mass. 414; Boy- those letters can be shown. Wright w Ian V. Meeker, 28 N. J. L. 274; Colvin Tatham, 5 CI. & F. 670; 7 A. & E. 313. V. Warford, 20 Md. 357; McTaggart w. And see McNinch v. Charles, 2 Rich. Thompson, 14 Penn. St. 149; Gibson v. 229. Gibson, 20 Mo. 227; Dickie v. Carter, 42 111. 376.; 47 Conn. 450. 196 CHAP. IX.J PROOF OF CAPACITY AND INCAPACITY. § ig^ Not only as part of the transaction are the declarations, oral or written, of the alleged testator thus admissible upon an issue of devisavit vel non (" will or no will "), but they may be received when the condition of the testator's mind is the point of contention, or it becomes material to show the state of his affections. Thus, the feelings of a testator towards a relative or relatives whom he practically disinherits can be shown in proof. ^ In all such cases, the evidence is properly admitted simply as external manifestations of a tes- tator's mental condition, and not as evidence of the truth or falsity of the facts he states.^ For as with deeds, so with wills, the parties making therti cannot impeach them by theif own parol declarations, prior Or subsequent to the execution ; and evidence thereof is not admissible upon the issue of validity.^ By making a new instrument or revoking the old one, the power to invalidate is property exercised if mental capacity f emaifi. It is obvious that if one cannot lawfully revoke a former will because of his present insanity, his insane declaration as to former mental condition should be utterly Worthless as testimony of the fact to impeach it; But mental disturbance may be detected by declarations as surely as by conduct ; and hence the declarations of persons charged with insanity are admissible, in a chain of logical connection, to elucidate the mental condition existing' when the will in question was executed. But if they have no tendency to show contempo- raneous capacity or incapacity, they are inadmissible; and hence the subsequent declarations of a testator, made while of sound mind, are held incompetent to show mental condi- tion at the date of execution.* 1 Whitman v. Morey, 63 N. H. 448. Cited; Jackson v. Kniffett, 2 Johns. 31; The fact that the testator held certain Provis v. Reed, S Bing. 435; Moritz v. offices after making a will is not admis- Brough, 16 S. & R. 405; Canada's Ap- sible to show his competency, without peal, 47 Conn. 45OJ 84 Mo. 587. And further proof of how he discharged the see § 243 post. duties. Ray v. Ray, 98 N. C. 566. ' Gibson v. Gibson, supra; Dickie v. 2 This seems the general doctrine, Carter, 42 111. 376. although the cases are somewhat in • * Crocket v. Chase (Vt.), i East. conflict upon this point. See GibsOii v. Rep. 755. , Gibson, 20 Mo. 227, and authorities See n«!xt chapter as to declarations 197 § 194 LAW OF WILLS. [PART II. § 194. Miscellaneous Points as to Evidence in Such Cases. — Rumors among a testator's neighbors, or general reputation as to whether he was of unsound mind or not, are inadmis- sible proof in the present connection.^ And generally on an issue of devisavit vel non irrelevant testimony should be ex- cluded.2 Long lapse of time, moreover, after the testator's decease tends necessarily to discredit any testimony which bears against the usual presumptions for or against the will.s As evidence to invalidate or corroborate a will, the age of the testator and his bodily state, his condition and cir- cumstances, his known affections and prefences, and the cor- respondence or contradiction of the will to these affections, the manner of making the will or codicil, the persons around him at the time, their capacity and credibility, — all such matters under reasonable restraint to the point at issue may properly go to the jury, or to the judge who tries the case.* Business transactions performed by the testator about the time of making his will, have been admitted as evidence, as indicative of his mental capacity.^ Evidence is relevant and admissible which tends to show that the will presented is in conflict with the fixed purposes previously expressed by the testator.® On the other hand, it is strong evidence of capacity to make the will, that its pro- visions are suitable, and made in accordance with determi- nations previously expressed by the testator while clearly sane.'' Finally, as the scope of our observations has already clearly indicated, the will itself, the instrument actually presented for probate, is evidence upon any issue of testa- of a testator on the point of fraud and Ware v. Ware, 8 Greenl. 42; 127 Penn. undue influence. St. 564. 1 Wright V. Tatham, 5 CI. & F. 670, s chase v. Winans, 59 Md. 475. 735; Townsend v. Pepperell, 99 Mass. * Sutton v. Sutton, 5 Harr. 459. 40; Brinkman v. Rueggesick, 71 Mo. 6 Kerr v. Lunsford, 31 W. Va. 659; 553; Vance v. Ubson, 66 Tex. 476. 64N. H. 573; 98 N. C. 566. As to conversations in the testator's « Scale v. Chambliss, 35 Ala. 19. presence concerning his mental condi- ' Couch v. Couch, 7 Ala. 519. And tion, see 74 Iowa, 352. see 152 Mass. 470; Hammond v. Dike, 2 Spence v. Spence, 4 Watts, 165; 42 Minn. 273; 76 Tex. 574. 198 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § I96 mentary capacity ;i and this the reader should bear well in mind. § 195. The Same Subject: Declarations of those interested under the Will. — Declarations made before its execution, by parties who afterwards become legatees under a will, are not admissible against the validity of the will.^ But upon the question whether declarations, admissions, or conversations, made by a devisee or legatee in the nature of an admission against his own interest or a confession are competent testi- mony, the decisions are not uniform ; some States permitting such declarations to be shown ; ^ while in other States the better opinion is that such declarations are inadmissible unless the party making them is the sole beneficiary under the will, for the reason that other devisees or legatees may be injuriously affected by the admission of such testimony.* For the general rule is that one party whose interest is several ought not to be prejudiced by the unauthorized declarations of another. If the declaration made under no solemnity of an oath be matter of opinion rather than of fact, there is all the more reason for excluding it.^ § 196. Character of the Witnesses -who testify as to Capacity. — As Judge Redfield has well observed, testimony to estab- lish lucid intervals, general insanity, or monomania, ought to possess two characteristics, in addition to truthfulness, that great essential of all testimony: (i) It should come from persons learned and experienced in the whole subject. (2) It should come as far as possible from persons who have had ample opportunity to observe the conduct, habits, and mental peculiarities of the individual whose capacity is at issue, and 1 Supra, § 188. Blakey, 33 Ala. 611; Ames' Will Re, 2 Ames Re, 51 Iowa, 596. 51 Iowa, 596; Benton v. Scott, 3 Rand. 8 WareT/. Ware, SGreenl. 42; Atkins 309; Clark v. Morrison, 25 Penn. St. V. Sanger, i Pick. 192. Cf. Phelps v. 453; Forney v. Fennell, 4 W. Va. 729. Hartwell, 1 Mass. 71. And see Beall See also How v. Pullman, 72 N. Y. 269. V. Cunningham, i B. Mon. 399; Brown ^ See Atkins v. Sanger, i Pick. 192; V. Moore, 6 Yerg. 272. Dale's Appeal, 57 Conn. 127, and cases * Thompson v. Thompson, 13 Ohio cited. St 356, and cases cited; Bl^ey v. 199 § 197 LAW OF WILLS. [PART 11. the development of his malady from its earliest stage ; and whose knowledge, if possible, reaches back to a period ante- rior to the malady.^ But persons whose testimony is founded upon so ample and skilful experience are rarely to be found ; or else being of the family, they have some pecuniary interest either in breaking or upholding the will. The family doctor, if there be one, unbiased and of sound judgment, who made the patient's case his careful study in advance of any contro- versy, combines these requisites in the highest degree. But such an investigation in court calls commonly for a full detail of the facts bearing upon the testator's sanity from unprofes- sional witnesses, and the discussion and estimation of those facts before the jury, aided by the opinions of a class of men professionally conversant with insane symptoms, and quali- fied as experts to impart instruction on such an issue.^ § 197. Whether Unprofessional Persons can give their Opin- ions as to Insanity. — It is a general principle that witnesses may state facts fully so far as their observation extended, but not give opinions outside the range of their peculiar training and experience. Yet the habit of generalizing upon facts is universal ; and within a certain compass every intelligent person's opinion will be found valuable. An illiterate man's judgment of weather phenomena, of crops, of forest animals and their trails, may far surpass a scholar's ; but only a scholar can discuss questions pertaining to universal language and history. Learned or unlearned, we are all keen observers of character where we are familiar. As for the issues of testamentary capacity, it requires men of legal training to estimate their legal bearing ; and men of medical training in a peculiar direction to detect the finer shades of mental disorder ; yet most persons of sense and good feeling deem themselves capable of appreciating whether those of their own family and acquaintance are out of their heads or not. Hence the doubt and uncertainty in our law as to whether ordinary witnesses can give their opinions upon the point of a testator's insanity, even admitting that on subjects where » I Redf. WiUs, 137. a lb. 200 CHAP. IX.J PROOF OF CAPACITY AND INCAPACITY. § I98 training and skill are needful they cannot. That legal doubt and uncertainty let us briefly investigate. § 198. Subscribing Witnesses, though not Experts, may testify as to Appsirent Sanity. — In the first place, it is univer- sally conceded that the subscribing witnesses to a will, even though not experts nor even familiar with the testator's habits and character, may testify as to his apparent sanity or insanity at the date of their subscription.^ And by admitting unreservedly the opinions of such persons on this point, the law at once refuses to affirm that none but experts are com- petent to pronounce upon the broad fact of one's mental soundness or unsoundness. The reason why subscribing witnesses are thus allowed to express an opinion of the tes- tator's sanity is, to use the language of a Massachusetts judge, " because that is one of the facts necessary to the validity of the will, which the law places them around the testator to attest and testify to. " ^ Yet, as we have already seen, the expression of such an opinion by subscribing witnesses is by no means indispensa- ble in establishing a will ; for, even though any or all the witnesses should be dead or beyond the reach of process, or wholly forgetful of the circumstances attending the attesta- tion, or otherwise incapable of aiding a just conclusion in court on the question of sound or unsound mind, this issue might be determined and the will admitted or probate refused 1 Brooks V. Barrett, 7 Pick. 94; Hast- United States), in Hastings v. Rider, ings V. Rider, 99 Mass. 624; May v. 99 Mass. 624. The reason is also ex- Bradlee, 127 Mass. 414; Cilley v. Cil- pressed in a late Missouri case: "At- ley, 34 Me. 162; Robinson v. Adams, testing witnesses have always been per- 62 Me. 369; Dewitt v. Barley, 9 N. Y. mitted to express an opinion as to the 371; Clapp ». FuUerton, 34 N. Y. igo; sanity of the testator, on the ground Logan V. McGinnis, 12 Penn. St. 27; that the law has made it their duty to Duffield V. Morris, 2 Harring. 375 ; inspect the testator's capacity, and the Appleby v. Brock, 76 Mo. 314; Gib- law presumes they did observe and son V. Gibson, 9 Yerg. 329; Beaubien judge of it, while other witnesses were V. Cicotte, 12 Mich. 459; Brooke v. by some authorities permitted to speak Townshend, 7 Gill, lo ; Turner v. only as to facts." Appleby v. Brook, Cheesman, 15 N. J. Eq. 243. 76 Mo. 314. For an application of the 2 Gray, J. (afterwards Chief- Justice Illinois statute on this point, see Bice of Massachusetts, and since Associate v. Hall, 120 111. 597. Justice of the Supreme Court of the 201 § 198 LAW OF WILLS. [PART IL without them.^ And certainly the testimony of subscribing witnesses on this point is by no means conclusive, but may be. rebutted by other evidence to the contrary.^ For the weight and force to be given to the opinion of any subscrib- ing witness regarding the testator's capacity depends, as in the case of other witnesses, upon the extent of his actual knowledge in this direction and the opportunities afforded for forming his opinion.^ It is true that the subscribing witness may state his belief as to the testator's soundness of mind without first showing the grounds upon which that belief was based ; * but all the facts seen or known by him at the time are proper subjects of inquiry by either party, and ought to be elicited whenever there is a controversy.^ A subscribing witness who testifies against the capacity of the testator is not only open to disproof by the proponent of the will, but may be impeached by other testimony, tending to discredit his veracity. Merely because one is a subscrib- ing witness, his opinion is entitled to no greater weight than it really deserves.® A subscribing witness's testimony . is not unfrequently discredited. And it is held that while such a witness may at the probate give the opinion regarding the testator's sanity which he had at the time of execution, he cannot state an opinion which he has subsequently formed.'^ 1 See Cilley v. Cilley, 34 Me. 162 ; sion of an opinion by any preliminary supra, § 175. inquiry as to whether he had good 'Cilleyz/. Cilley, 34 Me. 163; Harper ground for forming one. "It is the V. Harper, I N.Y. Supr. 35 1; Orser v. fact of being a witness to the will that Orser, 24 N. Y. 51. gives this right to ask his opinion of the 8 Turner v. Cheesman, 15 N. J. 243; soundness of mind of the testator. It Harper v. Harper, i N. Y. Supr. 351; may be given, although the witness was Stevens v. Vancleve, 4 Wash. C. C. 262. suddenly called in, and heard only the * Logan V. McGinnis, 12 Penn. St. request to sign, and the declaration of 27; Robinson v. Adams, 62 Me. '369. its being his last will." Kent, J., in ° Cilley V. Cilley, 34 Me. 162. When Robinson v. Adams, 62 Me. 369. these facts are elicited, it will often ap- " Thornton v. Thornton, 39 Vt. 122. pear that the subscribing witness had See Stirling v. Stirling, 64 Md. 138. very little foundation for an opinion " Williams w. Spencer, 150 Mass. 346. upon the subject. Nevertheless, our This decision is based upon the pecu- courts give every subscribing witness liar Massachusetts doctrine, detailed in the full benefit of the trust which the § 199, which restrains the expression of maker of the will has obviously placed non-expert opinions to the subscribing in him, and refuse to limit his expres- witnesses. 202 CHAP. IX.J PROOF OF CAPACITY AND INCAPACITY. § igg § 199. 'Whether Other Witnesses, not Experts, may state their Opinions as to Sanity ; Unfavorable Decisions. — Whether other witnesses, who are not experts, may likewise be per- mitted to state their opinion concerning the testator's sanity is a question upon which our courts do not agree. In Massa- chusetts, whatever may be the rule elsewhere, it is repeatedly held that the witnesses to the will, the family physician who has been medical adviser of the deceased, and witnesses who are qualified as experts in the knowledge of mental disease, are alone competent in contests of this character to give their opinions in evidence. The testimony of other witnesses is confined to a statement of the facts and declarations, mani- festing mental condition, of which they have knowledge.-' The reasons given for excluding such opinions is that those forming them have no peculiar duty or capacity to do so, that the matter requires special knowledge and skill, which such witnesses have not, that every unskilled witness has a differ- ent standard, and that the court or jury can quite as well reach a conclusion from proof of the details of the acts and conduct of the person whose mental capacity is in question.^ Nevertheless, it is conceded by the courts of this State that in eliciting the testimony of witnesses not competent to give an opinion of the testator's mental condition, practical difficulty is found in confining them to material facts and preventing the direct or indirect expression of an opinion. It is not easy for most witnesses to " distinguish between matters of fact and opinion on this subject ; between the conduct and traits of character they observe and the impres- sion which that conduct and those traits create." ^ Indeed, the latest Massachusetts decisions disclose less confidence than formerly in the propriety of suppressing unprofessional 1 Hastings v. Rider, 99 Mass. 622, at the trial a question was put to an and cases cited; Nash v. Hunt, 116 unprofessional witness (the guardian of Mass. 414; 150 Mass. 346. the decedent) which the judge allowed, 2 Hastings v. Rider, 99 Mass. 622. explaining it to mean, whether the wit- ' Baxter v. Abbott, 7 Gray, 71, 79; ness ever observed any fact which led Ellis V. Ellis, 133 Mass. 469. For an him to infer that there was any de- illustration of this difficulty upon an rangement of intellect. On appeal, equivocal question put to a witness, see there was considered no ground of ex- May V. Bradlee, 127 Mass. 414. Here ception to the question thus put. 203 § 200 tAW OF WILLS. [PART IL opinions on such matters. Thus, upon the issue of a tes- tator's sanity, persons acquainted with him, although neither attesting witnesses nor medical experts, have been allowed to testify whether they noticed any change in his intelligence or any want of coherence in his remarks*^ And upon some opinions of eminent judges in this State well expressed, the whole subject might be re-opened by assailing the main posi- tion that mental soundness in a given case is a condition of which medical men and experts are necessarily better capable of judging upon theory than those personally familiar with the patient upon long and habitual observation of his individ- ual traits and peculiarities ; ^ and recalling, furthermore, that many of the facts and appearances upon which an observer bases his intelligent opinion of insanity cannot be so vividly reproduced by the cleverest of mimics that a jury could pass upon the case with equal facility. § 200. The Same Subject. — There are a few other States in which the opinions of witnesses who are neither medical men, experts, nor subscribing witnesses, have been ruled out as incompetent where the sanity of the testator is at issue.* ^ Barker v. Cotnins, iio Mass. 477. the testator, and to any particular facts And see Nash v. Hunt, 1 16 Mass. 237, from which the state of his mind might a still later case, in which an unpro- be inferred, but not to testify merely fessional witness Was permitted to say their opinion or judgment." whether he observed " no incoherence ' In Baxter ». Abbott, 7 Gray, Tholnas, of thought in the testator, nor anything J., expressed himself as disposed, were unsound or singular in respect to his the question a new one, to allow every mental condition." In both these cases witness, on an issue of sanity, to give the Supreme Court ruled that such in- his opinion, subject to cross-examina- quiries related to facts, not opinions; tion upon the reasons upon which it which only serves to show to what was based, his degree of intelligence, subtle distinctions the Massachusetts and his means of observation. See also doctrine is at last reduced. If testify- Commonwealth v. Sturtivant, 117 Mass. ing thus to the appearance of the tes- 122, where Endicott, J. (since Secretary tator is not giving the witness's own of War), in a somewhat different con- opinion as the result of his personal nection, illustrated with copious leam- observation, it comes certainly very ing this whole subject of non-expert close to it. Judge Redfield takes this testimony upon the opinion of insanity, view in I Redf. Wills, 144, note, citing * Boardman v. Woodman, 47 N. H. Poole V. Richardson, 3 Mass. 330, where 120. And see State v. Pike, 49 N. H. it is said that " other witnesses were 399. allowed to testify to the appearance of 204 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 200 As in Maine,^ and in Texas.^ So until recently in New Hampshire ; ^ but in that State the courts have at length reversed this rule, impressed with the practical difficulty which attends the separation of fact from opinion where evidence is given touching the mental condition of a de- ceased person.* In New York the general rule was once announced by a divided court in substantial accord with the Massachusetts doctrine, namely, so as to confine general witnesses to the statement of facts only where the issue of insanity was raised.^ But the authority of that case was afterwards shaken ;® and it was declared that here, as in other instances where the minute appearances cannot be so perfectly described that a jury may draw a just conclusion from them, opinions drawn from personal observation are admissible in evidence from necessity.^ And the rule of that State, as more lately declared, is, that the general witness when examined as to facts within his own knowledge and observation which tend to show the soundness or unsoundness of the testator's mind, may char- acterize as rational or irrational the acts and declarations to which he testifies, and show the impression they produced upon him ; but that, being an observer and not a professional expert, he cannot go beyond his conclusions from the specific facts he discloses, nor express his opinion on the general question whether the mind of the testator was sound or un- sound.* 1 Wyman v. Gould, 47 Me. 159. But 6 DeWitt v. Barley, 9 N. Y. 371, But cf. Robinson v. Adams, 62 Me. 159. the lower courts had been tending in '^ Gehrke ». State, 13 Tex. 568. the other direction. See s. c, 13 Barb. ' Boardman v. Woodman, 47 N. H. 550; Culver v. Haslam, 7 Barb. 314; i 120. Redf. Wills, 144, note. * Hardy v. Merrill, 56 N. H. 227, « DeWitt v. Barley, 17 N. Y. 340. which adopts the dissenting opinion of ' Clapp v. FuUerton, 34 N. Y. 190; Doe, J., in State it. Pike, 49 N. H. 399, O'Brien v. People, 36 N. Y. 276; 86 where an exhaustive review of the cases N. Y. 517. on this subject may be found; 64 N. H. * Clapp v. Fullerton, 34 N. Y. 190; 573. Rider v. Miller, 86 N. Y. 507. And see For the Maine rule, see Halley v. Eddey's Appeal, 109 Penn. St. 406; 55 Webster, 21 Me. 461 ; Robinson v. Hun, 7. Adams, 62 Me. 369. See 79 Cal. 382. 205 § 20I LAW OF WILLS. [PART II. § 201. The Same Subject: Favorable Decisions. — On the Other hand, the great preponderance of our American deci- sions favors admitting generally the testimony of persons, professional or unprofessional, as to matters of personal observation bearing upon the testator's sanity, without at- tempting to discriminate closely between facts and opinions. And in most States an unprofessional witness never was, or else is no longer, confined to a recital of facts from which the jury must draw unaided an inference of sanity or insanity, but he may give his opinion touching the testator's sanity as the result of his own observation and familiarity.^ Why, in- deed, the non-expert subscribing witness should be so highly privileged in this respect above the non-expert general wit- ness who knew well the business and social habits of the testator at the time when the will was made, courts fail readily to apprehend.^ And comparing together the non-expert witness with his facts and the expert without them, it has well been said that the judgment of a witness founded on actual observation of the capacity, disposition, temper, char- acter, peculiarities of habit, form, features, or handwriting of others, is more than a mere expert opinion. It approaches to knowledge, and in fact is knowledge, so far as the imper- fection of human nature will permit knowledge of these things to be acquired, and such knowledge is proper evi- dence for the jury.2 Nor does it appear essentially different 1 Hardy v. Merrill, 56 N. H. 227, and Brooks's Estate, 54 Cal. 471 ; Severin v. cases elaborately reviewed; Dunham's Zack, 55 Iowa, 28; i Wms. Exrs. 347, Appeal, 27 Conn. 192; 4 Conn. 203; Perkins's note; American Bible Society Cram v. Cram, 33 Vt. 15; 17 Vt. 499; v. Price, 115 HI. 623; Blood's Estate Rambler v. Tryon, 7 S. & R. 90; 23 (Vt.), Am. Dig. 1890; Meeker v. Penn. St. 117; Pidcock v. Potter, 68 Meeker, 74 Iowa, 352. Penn. St. 342; Clary v. Clary, 2 Ired. ^ Q^ry v. Clary, 2 Ired. 78, approved 78; Brooke v. Townshend, 7 Gill, lo; in Appleby v. Brock, 76 Mo. 314, 317. Weems v. Weems, 19 Md. 334; Dennis But it deserves to be said that witnesses V. Weekes, 51 Ga. 24; Roberts v. Tra- present at the very act of execution, wick, 13 Ala. 68; Stubbs v. Houston, whether subscribing witnesses to the 33 Ala. 555; Appleby v. Brock, 76 Mo. will or not, are brought so immediately 314; Beaubien w. Cicotte, i2Mich. 499; into contact with the transaction in Ryman v. Crawford, 86 Ind. 262 ; 5 question, that their opinions ought to be Blackf. 217; Gibson v. Gibson, 9 Yerg. of especial value in such controversies. 329; Runyan v. Price, 15 Ohio St. I; ' Dunham's Appeal, 27 Conn. 192. 206 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 20I whether one testifies from his own study of the case and the facts he has personally observed and described that the testator appeared an insane person or that the witness be- lieved him such.^ Persons present when the will was exe- cuted and having as good opportunities of observation and as little bias as the subscribing witnesses themselves, afford an instance in point.^ Let us in this connection remark once more, how often the conviction of mental unsoundness is forced upon the familiar observer in a given case by little signs, like a roving eye, a strange tone of the voice, uneasy gestures, something unnatural in the individual that those who know his usual moods perceive quickly but cannot fully detail. S6 is it, too, with intoxication ; how slowly, in many instances, is that condition perceived by strangers in a mixed company, while the searching glance of an anxious friend or kinsman detected, the instant the drinker entered the room, not only that he had been drinking but how drunk he was. What gave the impression it would be hard to say and harder still to reproduce ; but the certainty of that impression is not to be shaken. Nature trains us all to observe the lurking expressions, the moods, the habits and disposition of those about us : this is prompted in a degree by the instinct of affection, of self-preservation ; and when one we have long watched shows signs of disease, of mental malady, or simply of settled aversion, the mind notes much that cannot be drawn out at a trial by question and answer ; but what one asserts of the individual most confidently is, that be was not like himself, and to that opinion one holds firmly. And on the whole it is better that the court should allow such opinions to be stated together with the facts, and test their accuracy by a cross-examination as to the grounds on which they were based, and the character and bias of the witness 1 See Poole v. Richardson, 3 Mass. ^ Brown v. Mitchell, 75 Tex. 9. 330, as to testifying " to the appear- A witness gave an opinion upon facts ance," which courts in other States and observation by comparison with the have considered as yielding all that capacity of a child, in 59 Conn. 226. they contended for on this question. I Redf. Wills, 144, note. 207 § 203 LAW OF WILLS. [part IL himself, than to shut out from the jury one of the most impor- tant means of eliciting the truth where death necessitates that all evidence upon the issue of mental condition must be of a secondary sort and without a personal inspection.^ § 202. The Same Subject : EngUsh Rule. — It is generally admitted that in the English ecclesiastical courts, as at the civil law, there was no strict exclusion of matters of opinion, where the testimony of unprofessional witnesses was taken upon the question of mental soundness as affecting a will.^ But some have assumed that the common law excluded all such testimony ; ^ while other authorities maintain with good reason to the contrary.* § 203. Restrictions 'where the Opinions of General Witnesses are Admissible. — But the opinion of one who is neither an expert nor a subscribing witness should not be received except in connection with the facts upon which that opinion is based.* And it seems entirely proper to question this 1 "It is a matter of daily experience that the opinion of an intelligent and familiar eye-witness is the only satis- factory means of ascertaining mental condition, or disposition, or expression, or any other of those impalpable but important facts upon which men rest in dealing with each other. ... In many cases the facts which can be de- scribed will be very significant to a jury, while there are many facts susceptible of a different interpretation, from which a jury could obtain no light whatever, without the aid of the Witness's judg- ment. The strongest indications of mental weakness or observation often exist in appearances incapable of repro- duction." Beaubien v. Cicotte, 12 Mich. 459- The same general idea is well ex- pressed in a recent case, as follows : " The opinion of an intelligent witness having adequate opportunity of observ- ing and judging, is the best testimony which can be adduced; for no mere de- scription of the acts, or words, or tone of voice, or glance of the eye, or gen- eral expression of the face or manner or bearing, of a person whose mental con- dition is in question, can convey to the jury the same impression or indications of insanity or mental debility, which they will create in the mind of a com- petent observer." Appleby v. Brock, 76 Mo. 314, 318. And see Cline v. Lindsey, 1 10 Ind. 337. ^ Hastings v. Rider, 99 Mass. 624, ferGray,].; Wright v. Tatham, 5 CI. & Fin. 692. a lb. * State V. Pike, 51 N. H. 185, jfier Doe, J. For the liberal rule of the ecclesiastical courts, see Wright v. Tat- ham, 5 a. & Fin. 692; I Phillim. 84, 122; 2 Phillim. 449. ' " This rule does not require the witnesses to describe what is not sus- ceptible of description, nor to narrate facts enough to enable a jury to form an opinion from these alone. This would be impossible; and, if it could be done, there would be no occasion for any 208 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 203 general witness first as to what he has actually observed for himself concerning the testator's sanity, in order to lay a foundation for excluding or discrediting any opinion he may entertain.^ For in order to be received in court, or carry weight, the opinion of a non-expert witness must not be derived from what others have witnessed, nor from rumor or hearsay, nor from any hypothetical statement of the case ; but it should be founded upon his own actual knowledge and observation of the testator's appearance and conduct, with fair opportunity of judging.^ Neighbors and friends of the testator, as well as those, of his own household and family, persons who have long known and dealt with him, and conversed with him before and after the execution of his will, may, under such a rule, be found quite competent to entertain an opinion touching his sanity.' But the more constant and familiar the acquaintance, the more trustworthy of course is the testimony, all other things being equal. And while the better rule does not prescribe long intimacy as the indispensable condition upon which a general witness may run from fact into opinion in giving his testimony, nor fix the precise quantutn or character of one's acquaintance with the deceased, — for the court should in such cases be allowed much latitude of discretion, according to the circumstances, — it is undoubtedly true that the mere naked or ill-founded opinion of a general witness, in regard to the testator's sanity, being entirely worthless, is equally opinion from the witnesses.'' Camp- sanity. But it appears to us fairer to bell, J., in Beaubien v. Cicotte, 12 Mich, let these opinions come out without any 459. See 87 N. C. 477. very strict exclusion, and judge of their 1 Pidcock V. Potter, 68 Penn. St. 342, consequences by the grounds on which states the Pennsylvania rule to be, that they are based. a non-professional witness may state his ^ Cram v. Cram, 33 Vt. IJ; Dun- opinion as to the sanity or insanity of ham's Appeal, 27 Conn. 192; Hardy v. the testator, after stating the facts upon Merrill, 56 N. H. 227; Bell v. McMas- which his opinion is founded. And see ter, 29 Hun. 272; Beaubien v. Cicotte, Roberts v. Trawick, 13 Ala. 68, which 12 Mich. 499; Appleby ». Brock, 76 appears to rule that such opinions are Mo. 314; Gibson v. Gibson, 9 Yerg. not admissible until the facts upon which 329; Turner v. Cheesman, 15 N. J. Eq. they are based are stated, and can then 243; Garrison v. Garrison, ib. 266; 72 be given only by those whose long and Iowa, 84. familiar acquaintance with the deceased ^ See Ryman v. Crawford, 86 Ind. qualifies them especially to judge of 262; 87N. Y. Si4' 209 § 204 LAW OF WILLS. [part II. inadmissible as evidence.^ For the impression made upon the mind of an intelligent witness by what he has observed in the conduct, manner, bearing, conversation, and acts of another may be of great help to a jury ; but far otherwise the impression produced by hearsay, prejudice, or idle gossip.^ § 204. Opinion of Physicians, Attendants, etc. — The opinion of a physician on the question of a testator's sanity is entitled to great weight, especially if he regularly attended the testa- tor at and about the time when the alleged will was exe- cuted.^ Under that principle already discussed, which most States favor, the opinion of any physician grounded upon his own opportunities of observation would be competent evidence, while his professional knowledge gives that opinion far greater force. And so, too, with any skilful nurse or attendant whose narrative of the case, accompanied by the personal impressions received from the patient's acts and behavior, should deserve high consideration.* 1 See Beaubien ». Cicotte, 12 Mich. 459; Morse v. Crawford, 17 Vt. 502; Stackhouse v. Houton, 15 N. J. 202; Dorsey v. Warfield, 7 Md. 65; Brooke V. Townshend, 7 Gill, 10; Poole v. Richardson, 3 Mass. 330; Harrison v. Rowan, 3 Wash. C. C. 580. No pre- cise time or character of previous ac- quaintance can be laid down as a fixed rule; much depends upon the kind and degree of mental malady. Powell v. State, 25 Ala. 21. But a personal ac- quaintance begun with the testator some time after the will was executed, has no positive or direct bearing upon the main issue of capacity. Eckert v. Flowry, 43 Penn. St. 46. Although a direct question of opinion concerning the testator's sanity may be improper, yet from its connection with the witness's prior testimony as to facts and circumstances, its admission may be trivial. 121 111. 376. * Whether a witness, not an expert, is qualified to express an opinion as a conclusion of fact, is for the judge pre- siding at the trial, or trying himself the 2 case without a jury, to decide. See 117 Mass. 122. ' Cheatham v. Hatcher, 30 Gratt. 56; Fairchild v. Bascomb, 35 Vt. 398; Bax- ter V. Abbott, 7 Gray, 71; Kempsey w. McGinniss, 2t Mich. 123; Duffield v. Morris, 2 Harring. 385; Frary v. Gusha, 59 Vt. 257. * Brown v. Riggin, 94 III. 560. In Fairchild v. Bascomb, 35 Vt. 398, it seems to be thought that a nurse in regular attendance is qualified to testify as an expert. The remark is a careless one; for no such qualification can be predicated of most nurses. Yet special training and experience might place one on that privileged footing ; and schools for nurses are a modern estab- lishment. The opinion of a Roman Catholic priest and confessor may be given as to the mental condition of a testatrix under his spiritual care, especially if he had made a preliminary examination to test her sanity, and was in the constant habit of applying his studies in physiology and psychology to test the mental condition 10 CHAP. IX.J PROOF OF CAPACITY AND INCAPACITV. § 205 § 205, The Same Subject: Medical Experts, etc. — But re- garding the physician or psychologist more in the light of an expert than an ordinary witness on the question of insanity, the courts treat him with much deference in testamentary causes. As an expert, one's testimony takes a much wider range ; for thus his general belief as to whether the testator was sane or insane may be freely elicited without being con- fined to the impressions derived from what he personally witnessed ; and he may express a professional opinion upon the facts embodied in the testimony of other witnesses with- out being confined to matters of his personal observation. Insanity, in modern times, is treated in asylums and by physicians who make a speciality of this malady. Yet the knowledge of facts derived by the physician in an individual case under his professional treatment may be a fair offset to a specialist's knowledge acquired elsewhere. Great respect certainly is paid by our courts to the opinions of all educated practising medical men upon subjects of medical science ; for even in Massachusetts, where the opinions of general wit- nesses have been so sedulously excluded, physicians who neither attended regularly in the case, nor are experts on the subject of insanity, have been allowed to express their opinions of the testator's sanity, from the fact that they were called in professionally.^ That one's experience was less than another's of the profession is held insufficient ground for ruling them out; the difference being rather in the weight of testimony than the competency of the testimony.* In general, the courts have refused to distinguish between different members and different schools of the medical pro- fession. And they appear to place educated and practising physicians generally upon the high plane of medical experts in testamentary causes where the issue of mental soundness is raised ; drawing no bold line, as it would seem, between specialists on this subject and others of regular standing in of those who confessed. Toomes's Es- " Baxter v. Abbott, 7 Gray, 71, per tate, 54 Cal. 509. See 76 Mo. 314. Thomas, J. 1 Baxter v. Abbott, 7 Gray, 71; Hast- ings V. Rider, 99 Mass. 622. 211 § 205 LAW OF WILLS. [part II. the profession, but leaving it rather to the good sense of the jury to sift all opinions thus expressed as well as the facts, and to discriminate as circumstances may require.^ The aid imparted by physicians here extends, therefore, by judicial consent beyond the usual range of opinions or impressions formed as the result of one's actual observation ; nor in practice would a professional man treat a case without inves- tigating facts and symptoms related by others, and basing his opinion upon their narrative as tested by his own judg- ment and personal inspection. Any responsible opinion imports, in truth, wider and deeper reaching for facts than an irresponsible one.^ 1 Harrison v. Rowan, 3 Wash. C. C. 580, 587; Fairchild v. Bascomb, 35 Vt. 398; Baxter v. Abbott, 7 Gray, 71; Kempsey v. McGinniss, 21 Mich. 123; Tullis V. Kidd, 12 Ala. 650; i Wms. Exrs. 347, Am. Ed., Pertins'snote; Livingston V. Commonwealth, 14 Gratt. 592; Cheat- ham V. Hatcher, 30 Gratt. 56; Duffield V. Morris, 2 Harring. 385; Potts v. House, 6 Ga. 324; Gibson v. Gibson, 9 Yerg. 29. Many other cases to which reference is sometimes made under this general head, relate to issues of sanity in crimi- nal cases. See 12 Ohio, 483. But tes- tamentary causes involve peculiar con- siderations, and our precedents are better drawn from controversies over wills. Insanity in crime involves the question of moral responsibility ; and there are late cases which, upon such an issue, consider physicians who have not made the subject of mental disease a special study, incompetent to testify as experts upon a hypothetical case. Com- monwealth V. Rich, 14 Gray, 335. We do not, however, find any such rigid doctrine applied in testamentary causes, where, as a matter of fact, however, the physicians summoned have usually had some personal experience with the tes- tator's case. In Kempsey v. McGinniss, 21 Mich. 123, 137, the court treated as admissible in evidence, upon the question of mental 2 soundness, the opinions of several pro- fessional witnesses who had not seen the testator during his illness. "We con- sider it too well settled," observed Chris- tiancy, J., "to require the citation of authorities, that, upon questions of this kind, the opinions of men skilled in that particular science, or, in other words, physicians, are admissible in evidence, though not founded upon their own personal observation of the facts of the particular case. But if the question had not already been closed by authority, I should be much inclined to doubt the propriety of receiving the opinions of merely medical witnesses, under such circumstances, to anything more than physical facts, such as the physical ef- fects of the disease; as I think it may well be doubted whether the skill of ordinary physicians in metaphysics, or their judgment upon merely mental manifestations, has been shown by ex- perience to be of any greater value than that of intelligent men in other depart- ments of life. The question, however, seems to be settled in their favor upon authority." ^ Upon the testimony of medical men and difference of opinion among them, some just observations are made by Mr. Justice Washington in Harrison v. Rowan, 3 Wash. C. C. 587 : " A physi- cian may, with some degree of accu- racy, form an opinion of the nature of 12 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 207 § 206. Expert Testimony Admissible as to Facts observed, or hypothetically. — The opinion of an expert concerning the sanity or insanity of a testator is generally admissible so long as its grounds are explained, whether as founded upon his own observation and examination of the patient, or upon a hypothetical case involving the facts which the evidence in the case appears to have disclosed, or as the combined result of his own observation and the other testimofiy adduced at the trial.^ And his opinion may be based upon a defined portion alone of the testimony, provided the whole testimony is not contradictory, but its truth expressly assured, and the expert is first made acquainted with all of the testimony upon which he is asked to pronounce.^ § 207- The Same Subject : Iiimitations to Such Expert Testi- mony. — But while a hypothetical case based upon the facts shown in evidence may thus be submitted to a medical expert for his opinion, it is held that expert opinions as to sanity based on hypothetical facts not appearing to exist in the given case are not admissible ; ^ and should the jury fail to find certain manifestations testified to as facts, they should reject whatever opinions were based upon them.* Nor does a hypothesis framed from a narrow range of facts offer ground for expert opinions of real value.^ It is further held that an expert cannot be allowed to give his opinion based partly the disorder, and its probable effect the opinion they may form of the com- upon the mind, where the symptoms parative judgment, learning, and expe- are truly stated to him; because, from rience of the witnesses themselves." a long course of experience and obser- See also Kempsey v. McGinniss, 21 vation, by himself and others of the Mich. 123, on this subject. profession, such have been the ordi- * Baxter z*. Abbott, 7 Gray, 71; Heald nary effects of these symptoms. But, v. Thing, 45 Me. 392, and authorities to entitle such opinions to the regard cited; Kempsey v. McGinniss, 21 Mich. of a jury, they should be satisfied by 123; 121 111. 376. the other evidence in the cause that " Yardley v. Cuthbertson (Penn.), un- the symptoms did exist in the particular published. case under consideration. And if the ' Ames Re, 51 Iowa, 596; 49 Iowa, opinions of these professional gentle- 7^- men should differ materially, as to the * Kempsey v. McGinniss, 21 Mich. ordinary effects of certain symptoms, 123. the jury must weigh their evidence, as * Andrews Jie, 33 N. J. Eq. 514. in other cases, and decide according to 213 § 208 LAW OF WILLS. [PART 11. upon his own observation and examination of the patient, and partly upon the unsworn representations of others, whose accuracy he has not tested for himself.^ Nor can he give an opinion which involves, on his part, the weighing of collateral testimony.^ As for medical testimony to facts observed, any physician who gives an opinion based upon his personal experience with the case ought to detail the facts of such experience, as ex- amination or cross-examination may suggest.^ An expert may state, even on his examination in chief, the grounds of the opinion expressed by him and the reasons for it.* And whether the physician or expert testifies to facts and appear- ances founded upon his own personal observation and acquaintance with the patient or upon a hypothetical case framed from the testimony adduced at the trial, the facts, symptoms, or appearances upon which his opinion is founded ought to be distinctly drawn out, for upon this presentation depends its intrinsic value.^ After all, a mere expert opinion touching a question of testamentary capacity is entitled to very little weight in comparison with proof of facts and cir- cumstances founded in personal observation, which carry their own inference.® § 208. To what Time Opinion of Witness relates : does not extend to Legal Capacity, etc. — The Opinion of any compe- tent witness as to thp testator's sanity should relate, on the whole, to the time of his examination ; and as the earlier impressions he may have conceived in this respect have only a secondary bearing upon the case, they should not be drawn 1 Wetherbee o. Wetherbee, 38 Vt. son, 9 Yerg. 329; Qary v. Clary, 2 254; Heald w. Thing, 45 Me, 392. Ired. 78. But it does not necessarily 2 Kerr v. Lunsford, 31 W. Va. 659. follow that the opinion of a witness ' Hastings v. Rider, 99 Mass. 622 ; (here a non-professional one) should Gibson v. Gibson, 9 Yerg. 29; Kemp- be excluded because he is unable to sey V. McGinniss, 21 Mich. J23. state everything upon which it is based; * Collier v. Simpson, 5 C. & P. 73; or that it should be totally disregarded Keith V. Lothrop, 10 Cash. 453; Heald because the facts stated may not justify V. Thing, 45 Me. 397. the conclusion. Stubbs v. Houston, 33 ' Heald *. Thing, 45 Me. 392; Clark Ala. 555. V. State, 12 Ohio, 483; Gibson v. Gib- ^ geg Burley v. McGough, 115 111. II. 214 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 2O9 out upon a direct examination.^ There is, however, a recent Massachusetts case which takes a different view.^ Nor should the witness be asked his opinion whether the testator was competent to make a will ; for such an inquiry involves matter of law as well as fact, upon which the court may re- serve its instructions ; but the simpler inquiry relates to men- tal soundness or unsoundness, with reference, as near as may be, to the particular act or kind of act in dispute, and as the result of personal knowledge and observation.^ § 209. The Issue of Sanity is not to be concluded upon Mere Opinions ; General Conclusions. — On the whole, the issue of mental soundness or unsoundness is not to be de- cided upon the mere opinions of witnesses, however numer- ous and respectable, but each opinion should be tested by the facts in the case, in order to judge of its probable correct- ness.* It is not the opinion of witnesses upon which reliance is placed by the triers of the case ; but from the premises which supplied the conviction in the minds of the several witnesses, the court or jury, aided by these opinions, and by the maxims of law, must form its own independent conviction and decide accordingly.^ Nor is there good ground for say- ing absolutely that one class of witnesses who testify in the 1 Runyan v. Price, 15 Ohio St. I. always a question of law. The physi- But where the local practice forbids the cal or mental condition from which that witness (a. general one) to testify upon capacity may be deduced, is a question the point of mental soundness or un- of fact, which may be shown by evi- soundness at all, he is only to state dence of physical or mental manifesta- facts together with the impression they tions and the opinions of professional produced upon him at the time, by way witnesses as inferences of fact thereon, of giving them the additional weight of There has been some looseness in the his conviction. Clapp v. Fullerton, 34 courts in permitting opinions to be N. Y. 19Q. But semble a change of con- given upon a testator's capacity, by pro? viction by the time of the trial would fessional witnesses and others, but that be material in proof in such a case. mode of putting the question is objec- i' Williams ». Spencer, 150 Mass. 346, tionable. Kempsey ». McGinniss, 21 § 198. Mich. 123, /^r Christiancy, J., 143. 8 Cf. Runyan v. Price, ib.; Fairchild * Turner v. Cheesman, 15 N.J. Ecj. V. Bascomb, 35 Vt. 398; Beaubien v. 243. Cicotte, 12 Mich. 459; Wilkinson v. « lb.; Garrison v. Garrison, 15 N. J. Pearson, 23 Penn. St. 117. Capacity to Eq. 266; Eddey's Appeal, 109 Penn. make a. will, or what in any case shall St. 406. be the standard of legal capacity, is 2 IS § 209 LAW OF WILLS. [part IL case should be more relied upon than another.^ True is it that those whose facilities for observation and judgment were the greatest furnish naturally the most valuable assistance ; and hence where medical men disagree in their conclusions, the opinion of the attending physician should carry the most weight.2 And among laymen no witnesses are so highly favored as the subscribing witnesses ; for these were present at the very act, were trusted by the testator to speak for him, and assumed a responsibility in the premises which no one is supposed to esteem too lightly.^ But these considerations, even though existing in full force, may be offset by others, such as bias, the degree of intelligence and skill, character for truth and veracity, strength of memory, soundness of judgment ; and all testimony offered in the case, whether for or against the will, should be weighed in the balance and carefully compared.* ^ Brown v. Riggin, 94 111. 560. ^ Harrison o. Rowan, 3 Wash. C. C. 587; Cheatham u. Hatcher, 30 Gratt. 56; Kempsey v. McGinniss, 21 Mich. 123. ' Harrison v. Rowan, supra. * The recent cases which discuss or compare the testimony offered upon the issue of a testator's sanity are very nu- merous. Among them may be men- tioned Billings's Appeal, 49 Conn. 456, where testimony required a reading of details. In Sutton V. Morgan, 30 N. J. Eq. 629, the evidence of three out of four disinterested subscribing witnesses to a will, the fourth being dead, was held to outweigh that of ten other witnesses, all of whom were related to the testator either by blood or affinity ; the fact also appearing that the testator's attending physician, although subpoenaed by the caveators and present at the trial, was not put upon the stand. This whole subject of testimony upon the point of mental soundness is clearly and thoughtfully discussed in Turner v. Cheesman, 15 N. J. Eq. 243, where six propositions are stated as the result by 2 way of a summary, i. The point of time upon which the judgment of the court turns is that of the execution of the instrument; and evidence of the testator's state of mind, before and after, although admissible, will weigh more or less, according to circum- stances. 2. The subscribing witnesses, and their opinions and the facts they state, as occurring at the time, are to be particularly regarded by the court. 3. The testimony of the opinion of wit- nesses, not subscribing, as to the testa- tor's capacity, are to be received as the slightest kind of evidence, except so far as they are based on facts and occur- rences which are detailed before the court. 4. The mere fact of a witness subscribing the will does not entitle his opinion to any special weight. 5. If a stranger to the testator, his opinion is of much less weight than that of another witness, who had long been familiar with the character and habits of the testator about the time when the will was executed. 6. The opinion of no witness will command much respect un- less fortified by satisfactory observation and reasons. These propositions are 16 CHAP. IX. J PROOF OF CAPACITY AND INCAPACITY. § 210 § 210. Expert Testimony further considered; Books of Medical Science, etc. — A few words may be added more gen- erally upon the subject of expert testimony in causes where a testator's mental capacity is at issue, concerning books of medical science or other professional works relating to insan- ity. The usual rule is that, while such books, if not objected to, may be read in court, either as part of the testimony or in the course of argument, they are liable to mislead, and can- not, upon objection, be read either to court or jury.^ But in some States the court has discretion to admit or exclude such testimony ;2 and local legislation explicit on this point may be found.^ There seems no reason, at all events, why a medical expert may not show that his opinion in the case is founded partly upon books ; for this holds true of all profes- sional knowledge.* Whether, however, particular books on a given subject are standard ones and trustworthy, or the con- trary, is a vital question, not always easy to determine. Ref- erence to other cases rather than other opinions seems less objectionable;^ for, to quote Chief-Justice Tindal, "physic all sound and sensible, and Judge Red- dihy, 8 Gray, 430; Commonwealth v. field (i Redf. Wills, 142, note) pro- Sturtivant, 117 Mass. 122; Harris v. nounces them exceedingly satisfactory. Panama R., 3 Bosw. (N. Y.) 7; Davis In Beaubien w.Cicotte, 12 Mich. 459, v. State, 38 Md. 15; Fowler v. Lewis, the court lays much stress upon the 25 Tex. 380; Carter v. State, 2 Ind. importance of testimony founded in per- 617. sonal observation, wherever the question ^ Standenmeier v. Williamson, 29 relates to a testator's sanity. "Jf wit- Ala. 558 ; Luning v. State, i Chand. nesses," it is here observed, " were not 264; Melvin v. Easley, i Jones Law, compellable to state such facts as are 386. tangible, there would be no means of ' The Iowa code makes books of testing their truthfulness. When they science and art admissible. Brodhead state visible and intelligible appear- v. Wiltse, 35 Iowa, 429. ances and acts, others who had the * Collier v. Simpson, 5 C. & P. 74; same means of observation' may con- State v. Terrell, i2R,ich. 321; i Redf. tradict them, or show significant and Wills, 146. explanatory facts in addition; and if ^ An expert, it is held, may refer to their story is fabricated, or if they other cases in his own experience as describe facts having a medical expla- illustrative of the case before the court, nation, medical experts may detect Parker v. Johnson, 25 Ga. 576, 584. falsehood in inconsistent symptoms, or But he cannot give his opinion upon determine how far the symptoms truly the previous opinions of other experts. given have a scientific bearing." Walker v. Fields, 28 Ga. 237. And in 1 M'Naghten's Case, 10 CI. & F. 200; reference to cases not of his own expe- I Redf. Wills, 146; Washburn v. Cud- rience but related in books, the question 217 § 212 LAW OF WILLS. [PAKT IL depends more on practice than law " ; ^ and the facts which go to establish insanity lie within the range partly of common observation and partly of medical or special experience.^ But the fundamental objection to admitting medical works or reports at a trial appears to consist in the circumstance that courts and the legal profession bring no critical knowledge or experience to bear upon their contents, nor have they oppor- tunity to test the authority of the book by putting the writer upon the stand, but must confide altogether in mere expert opinion, and thus open a boundless field for collateral inquiry. § 211. Competency and Value of Expert Opinion. — The general competency of a person to testify as an expert is for the judge presiding at the trial to determine.^ And to quote from Chief -Justice Shaw, " the value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it " ; * its design being to aid the judgment of the triers of a case in regard to the influence and effect of certain facts which lie out of the observation and experience of persons in general.^ No jury should give more weight to expert opinions, than in deciding the case on the whole testimony they think such opinions fairly merit.^ § 212. In 'what Manner Questions should be put to an Ex- pert. — There is considerable discussion as to the manner in which questions should be put to an expert ; but no positive formula can be said to apply exclusively to such testimony. The great practical difficulty is to avoid apparent conclusions of fact where the evidence in the case is complicated or con- flicting ; while, the practical object is to obtain from the witness the instruction he is qualified to impart as clearly and arises whether they are correctly and ' Heald v. Thing, 45 Me. 397; 117 fully narrated. Mass. 122; Boardmani'. Woodman, 47 See Richmond's Appeal, 59 Conn. N. H. 120; Clary v. Clary, 2 Ired. 78. 226, where counsel was restrained from * Commonwealth v. Rogers, 7 Met. reading to the jury from a standard book 500, 504, 505. on wills in course of his argument. ' lb. 1 Collier v. Simpson, 5 C. & P. 74. ^ Watson v. Anderson, 13 Ala. 202; 2 See Smith v. Tibbitt, L. R. i P. & Meeker v. Meeker, 74 lowi^ 352. D- 354. 398. 218 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. §213 naturally as possible. Various forms of questions which have been put forward, not as an exclusive formula, but rather by- way of example, should be considered accordingly. "The object of all questions to experts," it is well said, " should be to obtain their opinion as to the matter of skill or science which is in controversy, and at the same time to exclude their opinions as to the effect of the evidence in establishing con- troverted facts. Questions adapted to this end may be in a great variety of forms. If they require the witness to draw a conclusion of fact, they should be excluded. But where the facts stated are not complicated, and the evidence is not contradictory, and the terms of the question require the wit- ness to assume that the facts stated are true, he is not required to draw a conclusion of fact." ^ I 213. GenerEil Conclusion as to Expert Testimony. — Judge Redfield comments with severity upon the conflicting charac- ter of testimony which comes from experts ; its often one- sided and partisan character ; and above all, the tendency of the most mature and well-balanced minds to run into the most incomprehensible theorizing and unfounded dogmatism, from the exclusive devotion of study to one subject, and that of a mysterious and occult character.^ This reference is doubt- less a general one to cases, civil or criminal, which involve some issue of insanity ; and to that sort of testimony, more purely expert, which consists in framing conclusions upon some hypothetical case where the facts were observed by others. So far as testamentary causes are concerned, where the validity of some will offered for probate turns essentially upon the point of a decedent's mental capacity, and leaving out of 1 Chapman, J., in Hunt v. Lowell Gas v. McGlue, i Curt. C. C. i. Various in- Light Co., 8 Allen, 169, 172. See as to stances where the question, as put, re- one form of putting the question hypo- quired the witness to draw a conclusion thetically, well adapted to cases where of fact, are to be found in the reports, the facts are complicated or conflicting, B^. Sills v. Brown, 9 C. & P. 601. And Woodbury w. ObeaT, 7 Gray, 467. Lati- see Kempsey v. McGinniss, 21 Mich. tude is allowed where the evidence 123; Crowell v. Kirk, 3 Dev. (Law) leaves the facts clear. Hunt z-. Lowell 355; Fairchild i-. Bascomb, 35 Vt.398; Gas Light Co., supra; M'Naghten's I Redf. Wills, 148-152. Case, 10 CI. & F. 200; Commonwealth ' I Redf. Wills, 154. V. Rqgets, 7 'Met. 500; United States 219 § 213 a LAW OF WILLS. [PART II. consideration those whose present insanity may still be sub- mitted to the crucial test of personal inspection, very little reliance, certainly, should be placed in the mere theorizing of experts, as compared with the practical knowledge treasured up by those, professional or unprofessional, who have been familiar with the words, idiosyncrasies, and individual traits of one whose mind must be weighed from memory ; not only for the reason that psychology is a mysterious and occult science, while the minds of different human beings stamp an impression as distinct, though not as distinguishable as their faces, but because, from the very nature of the case, it has become impossible to reproduce distinctly at the trial, before expert or jury, all the facts, the symptoms, the phenomena, upon which expert testimony may be safely based where per- sonal acquaintance was wholly wanting. Particularly must this hold true in those numerous instances where the instru- ment was drawn up and signed at the last stage of life and in the sick-chamber where the soul wrestled with the body, and the vital currents, mental and physical, turned at feeble and fitful intervals. At such a crisis of life, symptoms and sur- roundings may have a direct bearing upon the validity of the transaction, far beyond any theoretical consideration whether the testator had or had not the modicum of reason sufficient for the act. § 2 1 3 (7. Final Observations : Effect of Probate, Costs, etc. — A court in ruling on questions, such as this chapter has dis- cussed, should be careful neither to mislead a jury, nor to show an undue bias favorable or unfavorable to the will ; and even propositions abstractly correct may be so stated as to have an injurious effect. But a ruling sufficiently favorable to those defeated in the contest is not a proper subject of exception even though it may have been somewhat inaccu- rate. The final probate of a will establishes the capacity of the testator, and evidence is not admissible to the contrary on other disputes raised in the course of settling the estate.^ Costs in contesting a will on the ground of incapacity in 1 Baptist Convention v. Ladd, 59 Vt. 5; Schouler Executors, Part II. c. 2. 220 CHAP. IX.] PROOF OF CAPACITY AND INCAPACITY. § 213 a the testator have been charged by the court of probate upon the estate, where, notwithstanding upon full proof the will should stand, there were strong justifying circumstances for raising the controversy.^ * Frost V, Wheeler, 43 N. J. Eq. 573. evidence whatever tending to show in- The court may direct a verdict of the capacity in the testator. 44 Ohio St. 59. jury sustaining the will, if there is no 221 §215 LA^ °^ WILLS. [part n. CHAPTER X. ERROR, FRAUD, AND UNDUE INFLUENCE. § 214. Error, Fraud, and Undue Influence reniain to be con- sidered in Connection with Testamentary Capacity. — We have sufficiently discussed the subject of testamentary capacity and incapacity, in its more obvious bearings, where legal dis- ability or the quantum of intellect indispensable to the trans- action demands consideration. But there remain final topics under the same general head, to which our attention should now be directed ; not referable, perhaps, with logical exact- ness, to testamentary capacity, and yet closely associated with that subject, more especially in cases whose evidence shows that the alleged testator was of weak or doubtful mental capacity. Wherever, indeed, the issue devisavit vel non is presented for adjudication, other elements, though not necessarily put in controversy, are involved in the ultimate decision, besides that of mental soundness, or sufficiency of intellect. Namely, was this identical instrument in its integ- rity one upon which that intellect operated with a testamen- tary purpose, or was it not } and again, did or di4 not that intellect produce the will in question freely and without fraud or undue external pressure t For if the instrument was not what the alleged testator intended to execute as his will, it should be refused probate ; and so, too, if his intellect, though not actually unsound, was used by artifice or force to make the will as some one else had contrived it for him. Let us then consider these final topics under our present head : Error, Fraud, and Undue Influence. § 215. Fundamental Error vitiates a 'Will; Effect of Partial Errors. — Of fundamental error in a will, disconnected with fraud practised by others, it is difficult to conceive ; and still 222 CHAP. X.J ERROR, FRAUD, AND UNDUE INFLUENCE. § 215 more so of a fundamental error, due to the testator's careless- ness and fault alone. But such a case is supposable; as where, for instance, two instruments, similar in general ap- pearance, were drawn up, the one a deed or private memo- randum, and the other a will, and the testator hastily executed the wrong one ; or where two wills were drafted for different persons, and one party signed that which was intended for the other ; ^ though it would certainly be strange if under such circumstances witnesses attested, the instrument was filed away, and the error was neither discovered nor recti- fied before the testator's death. Here would be a palpable error ; and if the testator, being illiterate, blind, or very feeble, had depended upon some scrivener, attorney, or at- tendant in the transaction, the latter would be greatly to blame in the business. We may assume that a palpable and fundamental error like this would defeat the probate. Of course, there might be an instrument presented for probate which was simply a forgery and not a genuine testament at all.2 Partial errors occur more naturally ; and here the mistake, if an honest one, would consist usually in some misunder- standing between the testator and his scrivener or attorney, whereby the will as drawn up and executed contained one or more words, clauses, or sentences, which changed essen- tially certain provisions of the wiU from what the testator is shown to have intended. Errors of this kind, as where a legatee's name is stated incorrectly, are sometimes so patent from the context as to be easily rectified ; but the mistake 1 The author, since writing the above, tents of the instrument she executed, finds a recent English case of precisely and refused probate of it. Hunt, Goods this description. Two wills, so similar in of, L. R. 3 P. & D. 250 (1875). language and character that one might Where a will is executed in duplicate have read and served for the other, ex- for the testator's convenience, that fact cept for one or two words which the may be shown, and probate will not be court was asked to treat as a mere permitted so as to give legatees a double misdescription, were prepared for two advantage. Hubbard v. Alexander, L. maiden sisters. The testatrix in ques- R. 3 Ch. D. 738. And see Nosworthy, tion executed the will prepared for her Goods of, 4 S. & T. 44. sister. The court held that the deceased ' See Kennedy v. Upshaw, 64 Tex. did not know and approve of the con- 411; § 241. 223 § 2l6 LAW OF WILLS. [pART IL might be a grayer and less obvious one, as where a legacy- intended for five thousand dollars was written out as for five hundred ; and various essential errors of one description or another might be supposed to result from the scrivener's mis- apprehension of his instructions. All such essential errors, should they be claimed to exist, require, at all events, to be proved ; and upon this point the counsel's or scrivener's testi- mony, and the production of his written notes or instructions may, if admissible, be decisive of the real facts. Here, once more, it is conceivable that the testator himself was the sole party in error; and a comparison of the will with his own draft or his declarations, if admissible, might establish that a slip of the pen, and not his change of purpose at the last moment, produced a will essentially different on its face, in one or- more respects, from what he really or perhaps mani- festly intended. A partial or corrected probate of the will, as justice and equity may require, is an ideal remedy for this state of things ; and words or clauses unintentionally omitted might thus be supplied, or those intentionally in- serted might be stricken out, in order that the will should stand of record as the testator actually intended. § 216. Ho-w far Zirrors may be corrected in the Probate. — But much difficulty is found as to correcting errors in the probate, where the error was not fundamental, as if the wrong instrument should be executed, but embraces simply some mistake or omission of words or sentences in the instrument as actually executed and witnessed. At the root of this dif- ficulty appears the objection that a written instrument should not be varied or controlled by parol evidence. English courts of ecclesiastical or probate jurisdiction have not in former times limited their functions very closely in this respect ; for here the circumstances surrounding the testamentary act are investigated, in order that the probate tribunal may gather the intentions of the deceased as to what writing or writings shall operate as and compose his will : and, so far as oral or nuncupative wills are permitted, this investigation would take a wide range. 224 CHAP. X.J ERROR, FRAUD, AND UNDUE INFLUENCE. § 2l6 But confining ourselves to wills executed in writing, the English rule has been that parol evidence of the testator's intention is receivable, to explain, not an ambiguity upon the construction, but an ambiguity upon the factum ; that is to say, as to what writing or writings were actually executed with the testamentary intent. Thus, parol evidence may show that a document duly executed as a will was never intended as such ; as where by mistake each of two persons executed the instrument drawn up for the other ; ^ or where a paper, which on the face is testamentary, is shown to have been a mere cdntrivance to effect some collateral object,^ or only the authenticated memorandum for some future will,* It may show that a codicil was intended to republish a will of a dif- ferent date from that absurdly written in it through mistake, and in general may connect the codicils with their appro- priate will and with one another, and thus give all the links of the testamentary chain, in case of doubt, their rightful sequence. So, too, it is held, prior to 1838, that parol evidence may show whether the testator meant a particular clause to be part of the instrument, or whether it was introduced without his knowledge ; and whether the residuary clause or any other passage was accidentally omitted ;* by which we understand, either that written papers were interpolated or omitted, or else that by comparison with the draft of the will as intended, or with the testator's own written instructions, the error may be corrected, and not by mere parol evidence of what the tes- tator intended.^ Two conditions are to be satisfied in such 1 Hunt Re, L. R. 3 P. & D. 250. supra and others not at present of * Lister v. Smith, 3 S. & T. 282. much value. In Fawcett v. Jones, 3 * Mitchell V. Mitchell, 2 Hagg. 74; Phillim. 485, former cases are cited, and Castle V. Torre, 2 Moore P. C. 133; I in this case Sir John NichoU refused to Wms. Exrs. 354. And see 15 P. D. 109; pass a line which, once passed, would post, §§ 276-279. have set all wills at the mercy of parol * Lord St. Helens v. Lady Exeter, evidence and introduced, as he said, 3 Phillim. 461; Coppin v. Dillon, 4 "a most alarming insecurity into the Hagg. 361 ; Thomson, Goods of, L. R. testamentary dispositions of all per- I P. & D. 8. sonal property." Blackwood v. Darner, 6 Blackwood v. Damer, 3 Phillim. supra, must be considered an extreme 458; Fawcett v. Jones, 3 Phillim. 450; case of permitted alteration in the pror 1 Wms. Exrs. 356-358, citing cases bate. 225 § 217 I-AW OF WILLS. {pART II. cases of undue omission or insertion : (i) The existence of some absurdity or ambiguity on the face of the will, sugges- tive of error, and calling for explanation. (2) Clear and satis- factory proof that the insertion or omission was contrary to the intention of the testator. Subject to these conditions, the court is at liberty, and even bound, to pronounce for the will, not as actually presented, but with the error rectified by omitting or supplying what was needful for giving full effect to the testator's intent.^ §217. The Same Subject. — But as to wills made since 1838, Stat. I Vict. c. 26, which requires the whole of every testamentary disposition to be in writing, and signed and at- tested pursuant to the act, operates in England to debar the probate court from correcting omissions or mistakes in such a disposition, by reference to the testator's draft or instruc- tions.2 Indeed, that statute changes materially the old testa- mentary law as formerly administered by the ecclesiasticd courts. For under that law, as Lord Penzance has observed, a " testamentary paper needed not to have been signed, pro- vided it was in the testator's writing; and all papers of a testamentary purport, if in his writing, commanded the equal attention of the court, save so far as one, from its date or form, might be manifestly intended to supersede or revoke another, as a will superseding instructions, or a subsequent will revoking a former." ^ Since the statute took effect, 1 1 Wms. Exrs. 357, and cases cited. him through inadvertence, being neither '^ Wilson, Goods of, 2 Curt. 853 ; contained in his instructions nor in the Guardhouse v. Blackburn, L. R. i P. & draft codicil. Unexecuted instructions, D. 109, in which the general rules are it was here conceded, can no longer stated which ought, since Stat. I Yict. constitute the basis of a probate; for c. 26, to govern questions of this kind no paper, whatever its form, can be in probate tribunals; Harter w. Harter, admitted which is not executed accord- L. R. 3 P. & D. II. ing to the statute.' And the court went * Guardhouse v. Blackburn, L. R. i further than this, and declared that a P. & D. 109, 113. In this case a codi- probate tribunal had no longer the cil had been read over to a capable tes- power even to strike out part of the tatrix, and duly executed by her and contents of a duly executed paper on attested; and the court refused to ex- the ground that, although such portion elude from probate a clause which the formed part of the paper when exe- scrivener swore had been inserted by cuted, it was inserted or retained by 226 CHAP. X,] ERROR, FRAUD, AND UNDUE INFLUENCE. § 21 8 however, English authority has tended decidedly against con- verting the modern court of probate into a tribunal of con- struction, with the peculiar and dangerous duty of shaping^ a will into conformity with the supposed intentions of the testator, whether by supplying or substituting words and clauses, or perhaps expunging.^ § 218. The Same Subject. — In this country, the later rule of the new probate tribunals in England appears to prevail rather than the earlier and looser one of the old ecclesiastical courts. For these probate tribunals are more nearly like ours, while the modern Stat, i Vict. c. 26, has its American counterpart in almost every State, where local legislation has long imposed peculiar formalities of execution with attestation in wills both of real and personal property. In an American court of probate, parol evidence may doubtless establish that the alleged testator, at the time of signing the instrument, did not understand that it was a will, nor intend the identical writing to operate as such.^ Probably, too, the true sequence and connection of will and codicils might be verbally shown where ambiguity existed ; or, perhaps, that sheets inadver- tently omitted or tacked on did or did not really belong to that which, properly fastened together, constituted the whole instrument upon which signature and attestation were meant to operate. Nuncupative wills, in the rare instances when they are still permitted, follow their own mode of proof. But the limit of correcting alleged mistakes or explaining an am- biguity by adding or changing, seems here to be approached.^ And where one, fully capable and free from undue influence or coercion, executes for his last will a certain instrument as already drawn up, his draft or instructions cannot, we may assume, be resorted to for correcting an alleged mistake of omission or expression with the aid of parol testimony ; espe^ mistake or inadvertence. For this 11; Davy, Goods of, i S. & T. 262. would have required the admission of But see § 219; Bushnell's Goods, 13 parol evidence; and besides the exe- P. D. 7- cution there was proof here that the * Swett v. Boardman, I Mass. 258 ; codicil had been read over to the testa- Couch v. Eastham, 2,7 W. Va. 796. trix before she executed it. ' See e.g. Lemann v. BonsaU^ I Add. 1 Harter v. Harter, L. R. 3 P. & D. 389. 227 § 2l8 LAW OF WILLS. [PART U cially if the contents being actually made known to him in detail, he may well be presumed to have adopted them. For any one is liable to change what has been drafted for him before he executes ; and to allow an instrument to be changed in. terms from that which one has executed with all the solem- nities by which the law surrounds it, upon loose and untrust- worthy oral evidence, is to involve the transaction in lasting uncertainty.^ Upon such a basis of argument it is held in this country that an instrument cannot be opposed for probate by evidence that the testator did not understand the legal effect of certain provisions, or truly appreciate the proportions in which his property would be thereby distributed.^ It follows, more- over, that the omission of the scrivener, in preparing a will which the statute requires to be executed with due formalities under the statute, cannot be supplied by parol proof.^ Even where the will as drawn, states the name of a legatee, but through some mistake in copying it, and not because of the testator's neglect to state the sum intended, the amount of the legacy is, left blank, this important omission cannot be supplied in the probate.* Although through some important omission of this kind, the whole scope and bearing of the testamentary provisions, as actually intended, may be materially changed, the mistake, it is held, cannot invalidate the will on that account, and ren- der it inoperative ; ^ for there is no such doctrine of law as requires the testator's intent to be indivisible, or defeats the will in totp inasmuch as the testator's intention must fail in part. In general, no mere misconception of fact or law can invalidate a will.^ 1 Gifford V. Dyer, 2 R. I. 99; Com- * Andress v. Weller, 2 Green Ch. 604. stock V. Hadlyme, 8 Conn. 254; Id- * Comstock v. Hadlyme, 8 Conn. 2541 dings V. Iddings, 7 S. & R. I n ; Barker ' Comstock v. Hadlyme, 8 Conn. 254; V. Comins, 1 10 Mass. 477; Boell v. Salmon v. Stuyvesant, 16 Wend. 321 ; Schwartz, 4 Bradf. Sur. 12; Andress v. Hearn v. Ross, 4 Harring. 46; Creely Weller, 2 Green Ch. 604. v. Ostrander, 3 Bradf. 107. A will may 2 Barker v. Comins, 1 10 Mass. 477. be in part good and in part bad, partly The testator read over the will and had sustained and partly rejected. Morris it read to him besides. And see Jones v. Stokes, 21 Ga. 552. V. Habersham, 63 Ga. 146. ° Monroe v. Barclay, 17 Ohio St. 302. 228 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. §219 § 219. The Same Subject : expunging Something Superfluous. — But at the present state of the law, English and American, it would appear that on the ground of mistake, something superfluous may be expunged from a will without transgress- ing the statute which prescribes a formal attestation, al- though a co-equal right to insert words or reform a sentence is denied. Numerous cases establish that probate of a part only of a properly attested instrument purporting to be a will, may be decreed while the rest is rejected.^ But for a court of probate to try to find out by extrinsic evidence what sort of a legal provision the testator meant to make, and then by such alterations as shall carry out his intention in different language and with possibly different legal effect from what he intended, remodel the will in form to suit the theory, is certainly a dangerous abuse of discretion.^ Once more, where the interpolated words appear by the proof not to have been really made known to the testator, or adopted into the instrument with his assent, there is the more reason for striking them out at the probate.^ And if words may be 1 Fawcett v. Jones, 3 Phillim. 434 ; rell v. Morrell, 7 P. D. 68, where it was Allen V. McPherson, i H. L. C. 209. found that the word "forty" was in- And see Morris v. Stokes, 21 Ga. 552; troduced by mistake before the word Rhodes v. Rhodes, 7 App. Cas. 192; "shares" in a bequest without the § 248 post. knowledge or approval of the testator, 2 Harter v. Harter, L. R. 3 P. & D. the court ordered the word struck out. II. See also Guardhouse v. Black- Still later, where in a will the name of burn, L. R. I P. & D. 109, where Sir one sister was inserted by a mistake J. P. Wilde (Lord Penzance) lays down of the draftsman for that of the other certain principles to be observed in sister, probate was granted with the re- cases under the present English Statute peated name omitted. Boehm's Goods of Wills ; Davy, Goods of, i S. & T. (1891), P. 262. In a very plain case, the English 8 In a late English case, where the court of probate went so far recently as scrivener inserted by mistake a clause to grant probate of a will with a word revoking all former wills, etc., the tes- changed. In the .draft, which was read tatrix having really intended that thft over to the testator, a bequest was made instrument in question should operate to the "Bristol Royal Infirmary." In as a mere codicil to a will previously exe- the engrossed will, which was not read cuted, the court expunged the clause; over to him, this bequest was written the testimony showing that the instru- by mistake to the " British Royal In- ment had not been read over, and that firmary." Upon this proof and an affi- the testatrix did not know that this davit that there was no such institution clause was introduced. Oswald, Goods as this last named, the court ordered of, L. R. 3 P. & D. 162. And in Mor- probate with . the word " Bristol " sub- 229 § 220 . LAW OF WILLS. [PART II. thus expunged from the probate, when shown to have been introduced without the testator's knowledge and assent, so may whole clauses,^ or some signature which was improperly- and needlessly added to the attested instrument.^ § 220. Equity Jurisdiction to correct Mistakes. — Courts of equity have general jurisdiction to correct mistakes in a will, as to their effect, when the mistake is apparent on the face of the instrument or can be made out by a due construction of its terms.^ The rights of parties are thus passed upon, where there are several persons of the same name, or some misnomer or misdescription appears in the will.* Indepen- dent gifts to strangers may thus be supplied, as well as a series of gifts to children or members of a class.^ Blanks, too, are thus supplied by construction, when the testator's intenr tion was apparent ; as where, for instance, the word "dollars " was carelessly omitted after the words " fifteen hundred " in stating a legacy,^ or the name of an omitted legatee can be inferred from the whole will.'^ But a court of equity does not in such a case change the probate ; it corrects the mistake or supplies the omission in its effect. The coiirt moulds, so to speak, the language of the testator, so as to carry into effect what he obviously intended. It is not the province of a court of equity to reform a will which the statute requires to be executed with certain formal- ities.* And since the Statute of Frauds, which requires wills stituted for " British." Bushaell's Goods, * Wood v. White, 32 Me. 340. 13 P. D. 7 (1887). 6 Mellor v. Daiuttee, 33 Ch. D. 198. 1 See opinion in Morrell v. Morrell, * Snyder v. Warbasse, 3 Stockt. Ch. 7 P. D. 68, and authorities cited ; 463. buane, Goods of, 2 S. & T. 23. ' 31 Ch. D. 460. " In Smith's Goods, 15 P. D. 2 (1889), 8 Fitzpatrick v. Fitzpatrick, 36 Iowa, the signature of the testator's wife, made 674. A will cannot be corrected in not with the object of attesting, but equity upon the ground of mistake, by merely "to verify contents" was ex- striking out the name of one person punged fJEora the probate. and substituting that of another inad- ' 1 Story Eq. Jnr. §§ 169-183 and vertently omitted. Yates v. Cole, I cases cited; Mellish r/. Mellish, 4 Ves. Jones Eq. no. Q^ Whitlock D. Ward- 45 ; Wood V. White, 32 Me. 340; Hunt well, 7 Rich. 453. V. White, 24 Tex. 643 f Jackson v. Payne, 2 Met. (Ky.) 567. 2JO CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 221 to be in writing, parol evidence, or evidence dehors the will is not admissible to vary or control the terms of the will, as ex- pressed, but only to correct mistakes apparent on the face of the will, or to explain some latent ambiguity.^ Under our American system probate courts exercise equity powers to a considerable extent, while the same appellate tribunal serves for both probate and equity matters ; and it seems not only highly expedient, but practicable, that all corrections which properly involve a change on the face of the will should be in some way spread upon the probate records, which serve, in modern times, for public information and to perpetuate the proof of wills. § 221. 'Where Fraud or Force vitiates a "Will. — The general considerations we have stated as to the effect of essential error in vitiating a will, apply where fraud or force appears to have operated ; only that justice is always more alert to defeat gifts and bequests brought about by the wrongful imposition of others, who cherish sinister designs, than those which impute mere error to the giver, or to some third party in the affair who was disinterested. If, then, an instrument executed under the wrong impression that it was one's own intended will, was really a different document in terms, art- fully supplied by another, with some ulterior purpose in view, it cannot stand ; and far more readily ought material words and sentences omitted, changed, or interpolated be rejected from the probate of the will, or vitiate that instrument alto- gether, whenever fraudulent design, and not a scrivener's innocent mistake, is shown to have produced it. Where suspicion attaches to such a document, no strong presump- tion arises from its execution; and, although the testator knew and approved the contents of the paper, it may still be refused probate if fraud purposely practised on the testator in obtaining his execution be established in proof.^ 1 Hunt V. White, 24 Trat. 643; Jack- " See observations of Lord Penzance son V. Payne, 2 Met. 567. And see in Guardhouse v. Blackburn, L. R. i P. post. Part VI., c. 3, as to extrinsic evidence & D. 109, n6. in aid of the construction of wills. 231 § 222 LAW OF WILLS. [PART IL So, too, a will which has been extorted from a testator by force is voidable as well after death by those whose rights would be impaired by its provisions as, during his life-time, by the unwilling testator himself. For, as it was long ago observed, if it can be demonstrated that actual force was used to compel the testator to make the will, there can be no doubt that although all formalities have been complied with, and the party perfectly in his senses, yet such a will can never stand.^ Our common law makes no classification of persons inca- pable for want of liberty or free will, as did the civilians, but leaves the court to determine, upon all the circumstances of each particular case, whether or no the testator had the essential liberum animum testandi? § 222. The Same Subject : Importunity and Undue Influence. — Closely connected with the subject of fraud and force is that of importunity or undue influence ; which latter term is now commonly used in the law of wills to denote that more subtle and- insidious constraint which takes away free agency by means of the ascendency gained by the stronger mind over the weaker. Undue influence involves in some degree one or both the elements of fraud and force, though not so distinctly or easily made out, and is usually exerted in origi- nating and shaping the will of some old and feeble person, 1 Eyre, C. B., in Mountain v. Ben- fear as the law intends, when it ex- net, I Cox, 355. Unless ratified after presses it by a fear that may cadere in all constraint was removed. constantem virum : as the fear of death, * 2 Bl. Com. 497; Swinb. pt. 2, § 8; or of bodily hurt, or of imprisonment, 1 Wms. Exrs. 44; Jackson v. Kniffen, or of loss of all or most part of one's 2 Johns. 31. goods or the like; whereof no certain Where the testator had a fear upon rule can be delivered, but it is left to him, as the old books expressed it, it the discretion of the judge, who ought could not be, as it ought, libera voluntas, not only to consider the quality of the Yet, as Swinburne adds, " it is not every threatenings, but also the persons as fear, or a vain fear, that vrill have the well threatening as threatened; in the effect of annulling the will; but a just person threatening, his power and dis- fear, that is, such as that indeed without position; in the person threatened, the it the testator had not made his testa- sex, age, courage, pusillanimity, and ment at all, at least not in that manner, the like." Swinb. pt. 7, § 2, pi. 7. A vain fear is not enough to make a And see Godolph, pt. 3, c. 25, § 8; testament void; but it must be such a I Wms. Exrs. 44. 232 CHAP. X.J ERROR, FRAUD, AND UNDUE INFLUENCE. § 223 not actually incapable, and yet so nearly disabled by sickness or mental infirmity that the pressure exerted has produced a formal testamentary expression inconsistent with the idea of a free and disposing mind. § 223. Equity Jurisdiction of Fraud and Force; Probate Courts decide Such Questions. — Equity relieves against fraud and force, as well as error, by virtue of its general jurisdic- tion ; but in the present instance an adequate and far more suitable remedy is found by making the issue, like that of mental capacity, at the probate of the will. In some of the earlier cases the court of chancery distinctly asserted a juris- diction to relieve against fraud in procuring a will ; ^ in other cases disclaiming such jurisdiction ; ^ and in still others declaring the party to the fraud a trustee for those prejudiced by it.3 But it became finally settled in England long ago, that equity could not set aside a will of either real or per- sonal property, because a court of law was competent to an- nul for fraud in the one case, and an ecclesiastical court in the latter.* Modern legislation in that country makes chan- cery and probate divisions of the same high court of justice, and removes the former distinctions between wills of realty and personalty as to the effect and desirableness of a probate. Objections, therefore, on the ground of fraud and force, should now be taken in the court of probate ; and the chan- cery judges decline still more positively to interfere with the exclusive exercise of a probate jurisdiction.^ 1 I Wms. Exrs. 45, note, citing i Ch. Wills, 28. In the recent case of Melu- Rep. 123 ; Prec. Ch. 123 ; Goss v. ish v. Milton, 3 Ch. D. 27, where a Tracy, I P. Wms. 287. testator had left all to A. B., his wife, 2 I Ch. 236; Archer v. Mosse, 2 and appointed her his sole executrix, Vern. 8. and the will was admitted to probate, " I Ch. 22; I Vern. 296; Bamesly the heir-at-law filed a bill in equity to V. Powel, I Ves. Sen. 287. have her declared a trustee for him on * Wms. Exrs. 45; Allen v. M'Pher- the ground that she had fraudulently son, I H. L. Cas. 191; Meluish z/. Mil- concealed from the testator the fact ton, 3 Ch. D. 27. that she was not his legal wife, but bad 6 Probate Court Act of 20 and 21 a former husband living. It was held Vict. c. 77 (1857); Pinney v. Hunt, that chancery had no jurisdiction, but 6 Ch. D. 98; Barraclough v. Green- the case came under the exclusive cog- hough, L. R. 2 Q. B. 612; I Jarm. nizance of the court of probate. 233 § 223 LAW OF WILLS. [PART II. In this country the probate courts of each State are in- vested with special powers to deal with issues of fraud and force, and to re-open, if necessary, their own decrees, or sub- mit to those of the appellate court, which regulates all matters of chancery or probate. The American rule, there- fore, has steadily discountenanced the idea that equity courts should entertain bills for setting aside a will on the ground of fraud, force, or even mistake, inasmuch as the probate regis- try preserves the public evidence of testamentary succession, and probate courts themselves have all the powers and machinery necessary to give full and adequate relief.^ In most States probate is conclusive and necessary in wills, whether of real or personal property or of both combined. And probate of a will determines all questions of fraud, force, and undue influence in their procurement, as well as of testa- mentary capacity.^ But, under English and American law, equity still passes upon the probated will as a court of construction, and deter- mines what, in fact, the instrument as "thus spread upon the record shall be taken to mean, as to provisions in contro- versy ; though such questions may now be raised in the probate court, while the estate is in course of settlement, or by virtue of equity powers conferred in these later days by 1 See Gaines v. Chew, 2 How. 619; diction. The public interest requires Brodericlc's Will, 21 Wall. 503; Town- that the estates of persons deceased, send V. Townsend, 4 Coldw. 70; Lyne being deprived of a master, and subject V. Guardian, i Mo. 410; Blue v. Patter- to all manner of claims, should at once son, I Dev. & B. Eq. 457. devolve to a new and competent owner- 2 Clark V. Fisher, I Paige, 176. ship; and, consequently, that there " Whatever may have been the original should be some convenient jurisdiction ground of this rule," says Mr. Justice and mode of proceeding by which this Bradley, concerning the refusal of an devolution may be effected with least equity tribunal to take jurisdiction to chance of injustice and fraud; and that set aside a will or its probate, "the the result attained should be 6rm and most satisfactory ground for its contin- perpetual. The courts invested with ued prevalence is, that the constitution this jurisdiction should have ample of a succession to a deceased person's powers both of process and investiga- estate partakes, in some degree, of the tion, and sufficient opportunity should nature of a proceeding in. rem, in which be given to check and revise proceed- all persons in the world who have any ings tainted with mistake, fraud, or ille- interest are deemed parties, and are gality." Broderick's Will, 21 Wall. 503, concluded as upon res adjudicata by 509. the decision of the court having juris- 234 CHAP. X.J ERROR, FRAUD, AND UNDUE INFLUENCE. § 224 express legislation; and in all such cases, the exercise of a probate and equity supervision by the same appellate court, as modern legislation provides, tends to secure that consist- ency and harmony of interpretation and enforcement which justice and good sense imperatively demand.^ § 224. Geueral Considerations as to Fraud and Deceit. — Fraud vitiates a will ; it is no less detestable in law, say the old writers, than open force. If, therefore, the testator be circumvented by fraud, the testament is of no more force than though he were constrained by fear.^ There is no positive rule to be laid down as to the quantum or quality of deceit required to vitiate a will ; but the court or triers should judge by all the circumstances, whether it is probable that the deceit took effect upon the testament, considering the char- acter of the latter, and comparing the deceit with the capacity or understanding of the person supposed to be deceived.^ Thus, it is held that when 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 bounty, the law will not permit him to avail himself of it, and there- fore he cannot demand his legacy.* But before applying this rule, the court must be satisfied that the assumed character was the motive of the bounty.* Whether such a rule would operate to deprive one of testamentary benefits with whom a testator lived as his wife, on the allegation that she had deceived him, having a former husband still living, must depend upon circumstances ; and certainly the character of lawful wife is by no means the sole moving cause of a man's gift to one who has proved his faithful and devoted com- panion.® 1 See dawler v. Sfanderwick, 2 Cox, ' Swinb. pt. 7, § 3. 16; I Wms. Exrs. 45 ; I Jarm. Wills, 27; * Rishton v. Cobb, 5 My. & Cr. T50. N. E. Trust Co. v. Eaton, 140 Mass. 532. * Kennell v. Abbott, 4 Ves. 802; Wil- On the other hand, the legal construe- kinson v. Joughin, L. R. 2 Eq. 319. tion of a will is not cognizable by the " See Meluish v. Milton, 3 Ch. D. appellate court when sitting to deter- 27, 29. Such questions of fraud as mine the question of its probate. Small partly or wholly vitiating the will ought V. Small, 4 Greenl. 220. to be determined in probate and not 2 Swinb. pt. 7, § 3; i Wms. Exrs. 45. chancery, under modern practice. lb. § 226 LAW OF WILLS. [PART U § 225. Fraud, Undue Influence, etc., vitiate when acting upon a Weak though Capable Mind. — Fraud and imposition, or undue influence, vitiate a will, whenever practised upon a weaker mind to the extent of overpowering and directing it, provided the result be such that others have a right to com- plain. Such weakness of mind need not, of course, amount to actual incapacity for making any will ; ^ though if actually incapable, still less can one's will be established. The question, it is said, whether a will is the free and vol- untary act of the testator, or the result of fraud or of influ- ences unduly operating upon him in consequence of which his will was made subordinate to that of another, depends upon the question, whether he had sufficient intelligence to detect the fraud, or strength of will to resist the influences brought to bear upon him.^ There can be no fatally undue influence, unless there is a person incapable of protecting himself, as well as a wrong-doer to be resisted.^ The two grounds of opposition, — (i) that the testator was not of sound and disposing mind ; and (2) that the will was procured by fraud, compulsion, or undue influence, — are often so closely connected as to be properly made together at the probate, the issue being determined by the proof adduced at the trial,* although the burden of proof rests differently in the two issues.^ § 226. Bodily and Mental Condition at the Time of Execu- tion of Great Consequence in the Issue. — In such an issue, therefore, it is of great consequence to ascertain the mental and physical condition of the testator at and about the time the will in question was executed. What, for example, would be improper influence in a person of feeble health, might not be such in the case of one in robust health.^ In fact, controver- 1 See Lord Donegal's Case, 2 Ves. where both questions are connected Sen. 408, by Lord Hardwicke. together. Wilson's Appeal, 99 Penn. 2 Griffith V. Diffenderffer, 50 Md. 466. St. 545. ' Latham v. Udell, 38 Mich. 238. « See § 239. * The issues of mental unsoundness « Griffith v. Diffenderffer, 50 Md. and undue influence may be embraced 466; Haydock v. Haydock, 33 N. J. in one inquiry of devisavit vet non, Eq. 494, 236 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 227 sies of this kind occur most commonly where the decedent was at the time of executing the instrument in declining health of mind and body, and so detached from his usual sur- roundings as to be peculiarly exposed to the secret machina- tions and importunities of some person or persons who, pur- posely or through favoring opportunity, hedged him about as life and reason ebbed away. And numerous cases might be cited to illustrate how readily a will may be set aside, without much regard to theoretical distinctions of compos or 7ion compos, wherever it appears that for procuring it a person of at least weak capacity, and nearly, if not altogether out of his mind, was coerced or imposed upon.^ On the other hand, some have thought that the exercise of undue influence nec- essarily presupposes weakness of mind in the testator ; and, certainly, it matters little how ingenious is the fraud, or how coercive the influence, if there be intelligence enough to detect, and strength enough to resist them.^ § 227- Undue Influence defined ; Something Sinister is always imputed in the Present Connection. — Undue influence is de- fined as that which compels the testator to do that which is against his will, from fear, the desire of peace, or some feeling which he is unable to resist.^ We say that the influence must be undue, in order to vitiate the instrument, because influ- ences of one kind or another surround every rational being, and operate necessarily in determining his course of conduct under every relation of life. Within due and reasonable limits such influence affords no ground of legal objection to his acts. Hence mere passion and prejudice, the influence of peculiar religious or secular training, of personal associa- tions, of opinions, right or wrong, imbibed in the natural course of one's experience and contact with society, cannot be set 1 Mairs v. Freeman, 3 Redf. 181; 33 Ala. 611; Leverett v. Carlisle, 19 Haydock v. Haydock, 33 N. J. Eq. Ala. 80; 38 Ala. 131; Potts v. House, 494. 6 Ga. 324; Davis v. Calvert, 5 Gill & 2 Colt, J., in Shailer v. Bumstead, 99 J. 269; 9 Md. 540; Wittman v. Good- Mass. 121. hand, 26 Md. 95; O'Neall v. Farr, i » Turner v. Cheesman, 15 N. J. Eq. Rich. 80 j Marshall v. Flinn, 4 Jones 243; Gardiner v. Gardiner, 34 N. Y. L. 199. 155; I Redf. 249; Blakey v. Blakey, § 227 ^*^ O^ WILLS. [part II. up as undue to defeat a will, if, indeed, it were possible to gauge the depth of such influences at all.^ " It is extremely difficult," as Lord Cranworth has observed, "to state in the abstract what acts will constitute undue influence in questions of this nature. It is sufficient to say, that, allowing a fair lati- tude of construction, they must range themselves under one or other of these heads — coercion or fraud." ^ Not even can the circumstance that the influence gained by one individual over another was very great, be treated as undue in our present connection ; especially if the person influenced had free opportunity and strength of mind suffi- cient to select what influences should guide him, and was in the full sense legally and morally a responsible being. " In a popular sense," says Lord Cranworth, " we often speak of a person exercising undue influence over another, when the influence certainly is not of a nature which would invalidate a will. A young man is often led into dissipation by follow- ing the example of a companion of riper years, to whom he looks up, and who leads him to consider habits of dissipation as venial, and perhaps even creditable ; the companion is then correctly said to exercise an undue influence. But if in these circumstances, the young man, influenced by his regard for the person who has thus led him astray, were to make a will and leave to him everything he possessed, such a will cer- tainly could not be impeached on the ground of undue influ- ence. Nor would the case be altered merely because the companion had urged, or even importuned, the young man so to dispose of his property : provided only, that in making such a will, the young man was really carrying into effect his own intention, formed without either coercion or fraud." ^ To suppose, however, instead of this evil influence, sel- fishly exerted to the exclusion of others who, rightly con- sidered, were equal or greater objects of the testator's bounty, 1 See Newton v. Carberry, 5 Cranch ' Boyse v. Rossborough, 6 H. L. C. C. 632. Cas. 6; 3 De G. M. & G. 817. And 2 Boyse v. Rossborough, 6 H. L. Cas. see Lord Penzance in Parfitt ■s. Law- 6; 3 De G. M. & G. 817. And see Sir less, L. R. 2 P. & D. 462. James Hannen in Wingrove v, Win- grove, II P. D. 83. 23» CHAP. X.] ERROR, FRAUt), AND UNDtTE INFLUENCE. § 228" an ascendency gained and exerted to reclaim from dissipated habits and for some just and benevolent purpose, this is never likely to invalidate a will, however earnest or powerful. By this we do not intend that justifiable ends are to be sought by unjustifiable means ; nor that what one earnestly believed to be a just, benevolent, and unselfish purpose, proves neces- sarily so when the will is set up for probate. But should an intimate friend, a spiritual adviser, or some member of the testator's household to whom he is strongly attached, ear- nestly dissuade him from an unjust purpose, urge'him not to disinherit those entitled to his bounty, against whom, without good cause, his heart has been locked up, plead and urge him to become reconciled, to forgive, to part from life in charity and peace, — in short, to make what all ought to call a fair and natural will ; and this in an unselfish spirit and without seek- ing some underhand personal advantage, such influence should not be allowed to disturb the will, on any mere sug- gestion that it was potent in preventing the wrong.^ In short, the undue influence which vitiates the testament has always something sinister, corrupt, and selfish about it, when properly viewed, however sly and secret in its workings, or varnished over with hypocrisy, and hence is difficult to be traced except in the effect it has produced. § 228. How Undue Influence may be exerted. — Undue influence may be exerted by physical coercion, by importu- nity, or by threats of personal harm and duress. But a more common kind of undue influence than this is where the mind and the will of the testator have been overpowered and sub- jected to the will of another, so that while the testator ap- peared to execute willingly and intelligently, it was really the will of another, induced by the paramount influence exercised upon a weak or impaired mind. " Such a will," observes the court of appeals in a recent New York case, " may be pro- 1 Persuasions used by a testator's chil- feeling, from disinterested and honora- dren to induce a devise to a brother's ble motives, and simply influencing his or sister's children who were poor will better judgment, to be deemed "undue." not condemn a will. Harrison's Will, Tucker v. Field, J Redf. 139. And see I B. Mon. 351. Nor are considera- Cornwell v. Riker, 2 Demarest, 354; tions addressed to a testator's good Eastis v. Montgomery (Ala.), 1891. 239 § 228 LAW OF WILLS. [PART IL cured by working upon the fears or the hopes of a weak- minded person ; by artful and cunning contrivances ; by con- stant pressure, persuasion, and effort, so that the, mind of the testator is not left free to act intelligently and understand- ingly." 1 And we may well assume that a pressure of what- ever character, whether it acts on the fears or on the hopes of an individual, is, if so exerted as really to overpower the volition, a species of restraint under which no valid will can be made.^ Whatever, indeed, destroys free agency and constrains a person to do what is against his will, and what he would not. do if left to himself, is undue infltfence in testamentary law, whether the control were exercised by physical force, threats, importunity, or any other species of mental or physical coer- cion.^ And undue influence sufficient to invalidate a will may be exerted without positive fraud,* notwithstanding the elements of fraud and coercion which may mingle together where undue influence is actually exercised. Nor is undue influence dependent on fixed principles or measured by degree or extent ; but by its effect in the particular case, and by a comparison of the two minds which antagonize. If found sufficient to destroy the testator's free agency in the trans- action at issue, it must be pronounced undue even though slight ; ^ and conversely, where the testator has resisted the pressure successfully, and acted for himself, there is no undue influence which in any positive sense impairs his will. 1 Earl, J., in Marx v. McGlynn, 88 worfli, " even though not unsound in N. Y. 357, 370. mind, may be such as to excite terror 2 Hall V. Hall, L. R. i P. & D. 481 ; and make him execute as his will an Haydock v. Haydock, 33 N. J. Eq. 494. instrument which, if he had been free ' Haydock v. Haydock, 33 N. J. Eq. from such influence, he would npt have 494; Layman w. Conrey, 60 Md. 286. executed. Imaginary terrors may have ^ Stewart v. Elliott, 2 Mackey (D. C.) been created sufficient to deprive him 307- of free agency; a will thus made may ^ Haydock v. Haydock, 33 N. J. Eq. possibly be described as obtained by 494- coercion." Boyse v. Rossborough, 6 The elements of fraud or coercion in H. L. Cas. 6. And he proceeds to cases of undue influence must be liber- state certain contrivances which might ally interpreted. "Xhe conduct of a be employed in the course of exercising person in vigorous health towards one undue influence, and yet have a fraiidu- feeble in body," observes Lord Cran- lent character. 240 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 229 § 22g. To invalidate a 'WiU for Fraud, TTndue Influence, etc., Testator's Free Agency must be overcome. — To invalidate, therefore, a will on the ground of fraud, compulsion, or undue influence, such conduct must be of such a character as to destroy the testator's free agency, and substitute for his own another person's will.^ Thus importunity, in its legal accep- tation, here imports such a degree of urgent and incessant soliciting that, under all the circumstances, and considering the testator's condition of mind and body at the time, it should be concluded that he was too weak to resist it, and his disposition could not be deemed the free act of a capable testator.2 The undue inlTuence thus exerted amounts at least to a moral coercion, and constrains the testator, through fear, the desire of peace, or some other motive than affection or a sense of duty, to do that which was really against his will.3 On the other hand, mere honest argument of persuasion, earnest solicitation, and such influence as one person may deservedly obtain over another are as a rule insufficient to affect the validity of a will, in the absence of decisive fraud, even though one should by such means procure a disposition in favor of himself or of some one else whose interest he has maintained* And a will induced by kind offices as well as 1 Mountain v. Bennett, i Cox, 355; & J. 269; Baldwin v. Parker, 99 Mass. - Kinleside v. Harrison, 2 Fbillim. 551; 84; RoUwagen v. RoUwagen, 63 N. Y. Gardner w." Gardner, 22 Wend. 526; 504; Coit v. Patchen, 77 N. Y. 394; Marxz/. McGlynn, 88N. Y. 357; Eckert Tawney v. Long, 76 Penn. St. 106; V. riowry, 43 Penn. St. 46; Roe v. Bledsoe v. Bledsoe (Ky.), 1890; Dale's Taylor, 45 111. 485; Morris v. Stokes, Appeal, 57 Conn. 127; Thompson v. Zl Ga. 552; Sutton v. Sutton, 5 Har- Ish., 99 Mo. 160. ring. 459; Duffield v, Morris, 2 Har- 'Williams v. Goude, i Hagg. 581; ring. 375; McDaniel z/. Crosby, 19 Ark. Hall v. Hall, 38 Ala. 131; Tawney v. 533; Whitman v. Goodhand, 26 Md. Long, 76 Penn. St. 106. 95 ; Layman v. Conrey, 60 Md. 286 ; * Swinb. pt. 2, § 4, pi. I ; Clapp v, Haydock v. Haydock, 33 N. J. Eq. 494; FuUerton, 34 N. Y. 197 ; Sutton v. Blakey v. Blakey, 33 Ala. 6u; Turner Sutton, 5 Harring. 459; Dean v. Neg- V. Cheesman, 15 N. J. Eq. 243. ley, 41 Penn. St. 312; Roe v. Taylor, 2 See Kinleside K. Harrison, 2 Phillim. 45 111. 485; Howe v. Howe, 99 Mass. 551, 552, by Sir John NichoU; Styles, 88; Shailer v. Bumstead, 99 Mass. 112; 427; Armstrong v. Huddlestone, I McDaniel v. Crosby, 19 Ark. 533; 18 Moore P. C. 478; Clark v. Fisher, i Hun, 403; Hughes v. Murtha, 32 N. J. Paige, 171; Davis v. Calvert, 5 Gill Eq. 288; Miller v. Miller, 3 S. & R. 241 § 230 LAW OF WILLS. [PART IL fair argument, is not for such reasons to be set aside.^ The influence of affection and attachment, such as induces the desire to gratify, is not undue in any legal sense.^ Nor do fair and flattering speeches, though abundantly proved, vitiate the will, unless coupled with fraud.^ Nor even the fact that the arguments or persuasions of the person seeking a chief benefit by the will were indelicate, indecorous, or improper.* Nor that such a party passively encouraged the testator's angry resentment towards others cut off eventually in his favor.^ Nor simply that the person exerting an influence had illicit sexual intercourse with the testatrix.^ Iq all such instances we are to suppose that the testator's free agency is not overcome. But while any person has the right to fairly persuade a testator to make him his executor or a beneficiary under his will, an unfavorable impression is afforded where the testator is shown to be of weak judgment, the opportunity for undue influence considerable, and the benefit to the persuading party under the will far greater than a testator would natu- rally bestow.'^ And wills have been set aside for the impor- tunities or undue pressure of intimate friends or professional or spiritual advisors, who stand with the decedent in peculiar relations of confidence of which they have taken an unfair advantage.* § 230. The Same Subject. — In the absence of fraud or imposition or undue influence of some kind, the court will 267; Yoe ». McCord, 74 111. 33; Scho- * Newhouse ». Godwin, 17 Barb. 236; field V. Walker, 58 Mich. 96 ; Trost v. Tawney v. Long, 76 Penn. St. 106. Dingier, 118 Penn. St. 259; Robinson ^ Woodward v. James, 3 Strobh. 44. V. Stuart, 73 Tex. 267. To rule to a ° Farr v. Thompson, Cheves, 37 ; i jury that undue influence is "improper Rich. 80; Roe v. Taylor, 45 111. 485; influence " does not express the legal Wainwright's Appeal, 89 Penn. St. 220; idea. 98 Mo. 433. Sunderland v. Hood, 84 Mo. 293; 82 1 Gleespin's Will, 26 N. J. Eq. 523; Ky. 93. But unlawful cohabitation may 32 N. J. Eq. 701 ; Rogers v. Diamond, be evidence of undue influence in con- 13 Ark. 474; Kerr v. Lunsford, 31 nection with other facts. Wainwright's W. Va. 659; 49 Ark. 367. Appeal, supra ; Main v. Ryder, 84 Penn. 2 Williams v. Goude, I Hagg. 581 ; St. 217; McClure z). McClure, 86 Tenn. 1 Wms. Exrs. 47. '73; § 236. 8 Swinb. pt. 7, § 4, pi. I ; I Wms. '' Walker v. Hunter, 17 Ga. 364., Exrs. 47; Small v. Small, 4 Greenl. 220. 8 See § 2^6, post, in this chapter. 242 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 23 1 . not speculate as to the probable motives of the testator.^ Nor is fraud or imposition to be imputed solely on the ground that the testator depended much upon the legatee for the management of his affairs and attendance to his personal wants.^ Indeed, lawful influence such as grows out of legiti- mate or social relations, must be allowed to produce its natu- ral fruits even in wills. The presumption favors a lawful, rather than unlawful, exercise of influence under such circum- stances ; and the exertion of a natural influence upon the testator can never afford adequate ground of itself for setting a testament aside.* But fraud or artful contrivance by which others who are innocent suffer wrong may afford good reason for setting aside the will, in such cases, even though no coercive influ- ence should appear. As, for instance, where one relative has produced the disinheritance of, another by false representa- tions, and abused peculiar opportunities of access to color as he likes the sick man's disposition.* Or where one dictates in fact the will, the testator being at the time unable to speak, and falsely pretends to interpret the dying person's wishes according to his own.^ Or where by false represen- tations as to the contents of an existing will one has induced the testator to make a new one.^ In short, the will should be the bona fide will of the testator, however induced ; from a fraudulent inducement no one should ever, if possible, be suffered to profit to the injury of the innocent ; and a will, the offspring of deception, cannot stand, any more than the offspring of constraint.^ § 231. The Same Subject. — Secrecy in the execution of the will, if clearly attributable to the mind and wishes of the 1 Bleecker v. Lynch, i Bradf. 458. 6 S. & R. 55; Nussear v. Arnold, 13 S. 2 Bleecker v. Lynch, i Bradf. 458 ; & R. 323. Elliott's Will, 2 J. J. Marsh. 340. '<• Scribner v. Crane, 2 Paige, 147. 8 Small V. Small, 4 Me. 220; Sechrest And see Lowe v. Williamson, i Green V. Edwards, 4 Met. (Ky.) 163; Lowe Ch. 82; Blanchard v. Nestle, 3 Denio, V. Williamson, 2 N. J. Eq. 82; Gilreath 37. V. Gilreath, 4 Jones Eq. 142. « Moore w. Blauvelt, 15 N. J. Eq. 67. * Dietrick J/. Dietrick, 5 S. & R. 207; ' Florey z/. Florey, 24 Ala. 241. 243 § 231 LAW OF WILLS. [part IL testator, is no badge of fraud.i But this and all the circum- stances in fact which we have pronounced insufficient of themselves, may from their association with other facts and circumstances of the case become of pregnant consequence upon the issue. Thus flattering speeches, may, if deceitfully employed to direct a mind that has lost its self-direction, render void the will upon which they have operated. And while, as we have seen, neither advice, nor argument, nor honest and moderate intercession or persuasion, unaccom- panied by fraud or deceit, would vitiate a will made freely and from conviction, though such a will might not have been made but for such influences,^ there may be, as we have also intimafed, an overpowering importunity of advice, of argument or intercession, honestly or dishonestly exercised, but on the whole inexcusably, which, in view of the testa- tor's feeble condition so that he could not combat it, may and ought, if proved, to avoid a disposition made in conse- quence.^ Some of the cases have held that such an influence, to produce so disastrous a result, must have been consciously exercised with a view to the result ;* but to a candid mind it can make no difference in favor of the will that the party thus urging it was so carried away by excitement or blinded by selfish motives falsely ascribed, as not to be conscious of the over-pressure he brought so indiscreetly and unfairly to bear upon its execution. And persuasion used in extre- mis, or where the testator is on his death-bed, is of all instances of persuasion the most repulsive to a court of justice.^ 1 Coffin V. Coffin, 23 N. Y. 9; § 245; merly allowed to be made) to show 43 N. J. Eq. 1 67. that a dying man's answers to questions ' Supra, §, 229. put by crafty and importunate persons ' See Buchanan, C. J., in Davis v. ought not to be received as the free Calvert, 5 Gill & J. 301 ; Brown v. expression of his will in favor of such Moore, 6 Yerg. 272. persons. The monk asked the gentle- * I Wms. Exrs. 47, Perkins's note; man if he would give such a manor Small V. Small, 4 Greenl. 220; Martin and lordship to his monastery. The V. Teague, 2 Spears, 268. gentleman answered yea. Then, if he 'Dickinson v. Moss (1790), 4 Burn, would give such and such estates to 58, cited I Wms. Exrs. 47. such and such pious uses. The gentle- Swinburne states an instance of oral man answered yea, to them all. The will (as wills of personalty were for- heir-at-law, observing the covetousness 244 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 232 Less undue influence and less fraud are required to procure a will unlawfully from a person of weak and impaired intel- lect and physical feebleness, than from a person in full mental and bodily vigor. ^ § 232. Fraud, Constraint, and Undue Influence relate to the Time of making the Will and its Execution. — The constraint or fraud or undue influence necessary to set aside a will must be a present restraint, fraud, or undue influence, operating upon the testator's mind in the very act of making the will, and affecting its execution or the dispositions it makes.^ Con- temporaneous threats have this effect.^ But while threats, violence, or any undue influence exerted in the past, shown as isolated facts, and in no way connected with the testa- mentary act, cannot be adduced to impeach it, conduct of this sort which bears upon the execution of the instrument in controversy, and is directly and immediately connected with it, though somewhat remote as to the point of occurrence, may aid in avoiding the will upon- which it operated.* "The undue influence," it is well observed, " must be an influence exercised in relation to the will itself, not an influence in relation to other matters or transactions. But the principle must not be carried too far." ^ of the monk, and that all the estate of Probate, 2 R. I. 255. See also would be given from him, asked the Boyse v. Rossborough, 6 H. L. Cas. 6; testator if the monk Was not a vety Ketchuin v. Stearns, 76 Mo. 596. knave, " who answered yea." And ' Lord Cranworth in Boyse v. Ross- upon the trial " for the reasons above borough, 6 H. L. Cas. 6. " Where a said, it was adjudged no will." Swinb. jury sees that, at and near the time pt. 2, § 25, pi. 5. when the will soi^ht to be impeached 1 Reichenbach v. Ruddach, 127 Penn. was executed, the alleged testator was, St. 564. in other important transactions, so under 2 McMahon v. Ryan, 20 Penn. St. the influence of the person benefited by 329; Eckert v. Flowty, 43 Penn. St. 46; the will, that as to them he was not a 127 Penn. St. 564. free agent, but was acting under undue 8 Moore v. Blauveltj 15 N. J. Eq. 367; control, the circumstances may be such * Cf. Davis V. Calvert, 5 Gill & J. as fairly to warrant the conclusion, even 269, 303, with McMahon v. Ryan, and in the absence of evidence bearing Eckert v. Flowry, supra; Chandler v. directly on the execution of the will, Ferris, I Harring. 454; Rutherford v. that in regard to that also the same Morris, 77 111. 397; Jencks ». Court undue influence was exercised." Ibt 24s § 235 LAW OF WILLS. [PART IL § 233. Testament need not originate with Testator ; but the Will must be his. — Our testamentary law does not insist that the making a will should originate with the testator ; nor is proof to that effect requisite, provided it be shown that the deceased intended the instrument as his own, and completely understood, adopted, and sanctioned whatever disposition was proposed or suggested to him, and embodied in that instru- ment.i But if any part or clause of the w:ill, or the whole instrument, was first suggested to the testator by any other person and adopted by the testator, such adoption must not be the result of his incapacity or weakness of mind, nor of fraud, circumvention, force, or undue influence ; and whether it be so, the trier or jury must decide from all the facts and circumstances presented.^ § 234. A Will invalidated for Fraud, Undue Influence, etc., fails as to All whose Benefit is procured. — A will invalidated for fraud, force, or undue influence, fails, not only as to the person exerting it, but as to all for whom a benefit was thereby procured.^ § 235. These Mazims applied to Parental and Filial Rela- tion. — Threats of personal estrangement or non-intercourse, addressed by a child to a dependent parent, or threats of litigation between the children, may thus destroy the parental disposition upon which they operated.* On the other hand, the natural influence acquired by one in the parental or filial * Constable v. Tufnell, 4 Hagg. 477; ing the particular will and its provisions, s. c. on appeal, 3 Knapp, 122; Jones should at least be perfectly capable of V. Jones, 14 B. Mon. 464; Tunison v. doing so. White's Will, 121 N. Y. 406. Tunison, 4 Bradf. 138. « Davis v. Calvert, 5 Gill & J. 269. 2 Davis V. Calvert, 5 Gill & J. 269. * Moore v. Blauvelt, 15 N. J. Eq. 367. We have already seen that by the latest In Hartman v. Strickler, 82 Va. 225, a test applied to mental capacity of a low will in a son's favor was set aside, where degree, it is prescribed that the testator it appeared that the testator, a feeble shall, at all events, have sufficient active old man, lived with him in fear and memory to collect in his mind, without subjection, and that the son had threat- prompting, the particulars of the alleged ened to whip him and had prevented transaction. Delafield v. Parish, 25 him from seeing the daughter, to whom N. Y. 10. The testator, if not originat- he was tenderly attached. 246 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 236 relation may be allowed its just and natural operation, as powerful, beyond that of the most intimate friends.^ § 236. These Maxims applied to the Marital Relation; a ■Wife's Influence, etc. — The wife has been treated with a marked indulgence in testamentary cases which involve issues of this kind ; out of consideration, as it would appear, to her sex and marital position, which incline her to persuasive, tender, and persistent rather than overruling methods of influence, and to the impression which popularly obtains, moreover, that a true and faithful spouse is not likely to gain more under her husband's will than she really deserves. Hence a wife's- pleading, and even her importunity with her husband, seldom avoids a will made under its influence, so long as it may be supposed that the husband weighed what she proposed and deliberated for himself, and that she prac- tised no deception upon him ; and, generally speaking, a wife may justly influence the making of her husband's will for her own benefit or that of others, so long as she does not act fraudulently or extort benefits from her husband when he is not in condition to exercise his faculties as a free agent.^ The momentous influence which a spouse may wield in this closest and tenderest of all relations cannot be easily im- peached as for undue advantage. Yet each case furnishes its own criterion ; for, after all, duress and deception are the sole attributes of neither sex. If, therefore, a man makes a will in his sickness, by the over- importunity of his wife, to the end he may be quiet, this (says RoUe, C. J.) shall be pronounced a will made by constraint and not a good one ;^ by which we must, however, understand that his free agency is overcome.* And if the wife's efforts 1 Lowe V. Williamson, 2 N. J. Eq. 82; 412 ; Zimmerman v. Zimmerman, 23 Gilreath v. Gilreath, 4 Jones Eq. 42; Penn. St. 375; Moritz v. Brough, 16 S. Sechrest 71. Edwards, 4 Met. (Ky.) 163; & R. 403; Rankin v. Rankin, 61 Mo. Mason v. Williams, 60 N. Y. Supr. 398. 295; Hughes v. Murtha, 32 N. J. Eq. ^ Mountain v. Bennett, i Cox, 355; 701 ; Meeker v. Meeker, 75 111. 260. Small V. Small, 4 Me. 220; Gardner o. ' Hacker v. Newborn, Styles, 427. Gardner, 22 Wend. 526; Lide v. Lide, * Gardner v. Gardner, 22 Wend. 526; 2 Brev. 403; Pierce v. Pierce, 38 Mich, cases supra. 247 § 236 LAW OF WILLS. [PART II. were specially directed to procuring a will peculiarly accept- able to herself and prejudicial to others, or a will after her own precise dictation, this should be taken against her, sooner than the mere use of that ascendency over a husband which one gains by her virtues and devotion, so as to win a reward which he liberally bestows because her pleasure has become the law of his conduct.^ A mother's influence is not likely to be unwisely exercised as between her own children ; but where the claims of step- children conflict with those of her own offspring, her kindred, or herself, undue influence or fraud may be more readily inferred from her suspicious conduct. Upon such an issue it is competent to show that no foundation existed for exclud- ing children of the former wife from participation in their father's estate.^ And in mercenary marriages, of which those of old and wealthy men with a second wife furnish numerous examples, whatever shows heartlessness on the wife's part towards either the testator or those justly entitled to share with herself in his bounty, must needs prejudice her case.^ On the other hand, the wife of a later marriage may be found seeking to set aside a will on the ground that her hus- band's father or the children of a former marriage unduly 1 Small V. Small, 4 Me. 220. And And see White v. White, 2 Sw. & Tr. see Beaubien v. Cicotte, 12 Mich. 459. 505. ^ Mullen V. Helderman, 87 N. C. 471. It is also stated in this case by Lord " As to fraud, if a wife, by falsehood, Cranworth, that the difficulties of defin- raises prejudices in the mind of her hus- ing the point at which influence exerted band against those who would be the over a testator's mind becomes so press- natural objects of his bounty, and by ing as to be properly described as coer- contrivance keeps him from intercourse cion are greatly enhanced when the with his relatives, to the end that these question is one between husband and impressions, which she knows he had wife. "The relation constituted by thus formed to their disadvantage, may marriage," he observes, " is of a nature never be removed; such contrivance which makes it as difficult to inquire, as may, perhaps, be equivalent to positive it would be impolitic to permit inquiry, fraud, and may render invalid any will into all which may have passed in the under false impressions thus kept alive." intimate union of affections and inter- Boyse v. Rossborough, 6 H. L. Cas. 6, ests which it is the paramount purpose per Lord Cranworth. But his lordship of that connection to cherish." Boyse proceeds to admit that it is extremely v. Rossborough, supra. difficult to state in the abstract what * Harrel v. Harrel, i Duv. 203 ; acts will constitute undue influence. Reynolds v. Adams, 90 lU. 134. 248 CHAP. X.] ERROR, FRAUD, AND U^TDUE INFLUENCE. § 237 influenced the testator against her.^ Such a complaint, and the complaint of any wife against her husband's will, may involve an inquiry into her conduct and character ; for if she was proved unfaithful and undeserving, she would have little but her legal rights left to stand upon, though these in our modern practice would probably be found ample enough. The influence of a lawful wife, we may add, is differently regarded from that of one who has cohabited illegally with the testator ; for while one of the latter kind may not be utterly debarred from taking under her paramour's will, the lawful kindred and natural objects of his bounty (especially if children or issue) might nevertheless oppose any will as un- duly procured by her influence, which displaces them for her benefit, for the very reason that sexual influence is so pervad- ing and powerful.^ The influence of a mistress is more apt to be undue than that of a wife, because its bias is positive in the direction of perverting one's testamentary disposition from the natural legal channels.^ Wills in fine have been set aside for the fraud and deception of the wife.* § 237. The Same Subject: a Husband's Influence. — Undue influence may be more readily predicated of a husband over his wife than of a wife over her husband.^ But the wisdom and policy of preserving the confidence of the marriage rela- tion inviolate bear against a suspicious scrutiny in the case of either spouse. A husband's undue influence over his wife's will is rarely established.^ 1 Gaither v. Gaither, 20 Ga. 709. ♦ Scribner v. Crane, 2 Paige, 147. 2 Dean v. Negley, 41 Penn. St. 312; ^ Marsh v. Tyrrell, 2 Hagg. 84; supra, Kessinger v. Kessinger, 37 Ind. 341; § 60. See Tawney v. Long, 76 Penn. Monroe v. Barclay, 17 Ohio St. 302; St. 106. That the earlier rule of our Nussear v. Arnold, 13 S. & R. 323. But law favored the husband's right to his unlawful cohabitation with the mother wife's whole personal estate, and re- of an illegitimate child does not of itself garded the wife's will as generally of import undue influence in favor of giving no effect without her husband's permis- a legacy to that child. Rudy v. Ulrich, sion, we have elsewhere seen. Supra, 69 Penn. St. 177. § 45- That unlawful cohabitation does not « gee Armstrong v. Armstrong, 63 of itself vitiate a will, see §§ 22, 229. Wis. 162. 8 See McClure v. McClure, 86 Tenn. 174. 249 § 238 LAW OF WILLS. [PART IL Where a woman left her estate to the man who lived with her as her husband, knowing of his former relations with another woman, but not perhaps that the other woman was his lawful wife, such ignorance on her part was held insuf- ficient for setting her will aside.^ § 238. Fraud, Undue Influence, etc., must have taken Effect ; Natural or Unnatural 'Will, etc. — The fraud, force, or undue influence we are considering must not have been practised alone ; it must, besides, have taken efEect, misleading or over- coming the testator.^ It must have induced the will, or, at least, have affected the provisions of the will in essential par- ticulars ; it must have substituted something fraudulently of which the testator took no intelligent cognizance, or by a sort of duress extorted from him an unwilling disposition, or by some method more insidious, turned the natural current of his interests and affections into some strange and contrary channel. It must have produced, in short, a disposition dif- fering essentially from what the testator would have made if left free to act for himself. Hence it is always a material and often a decisive circumstance, where fraud, force, or undue influence is charged, that the instrument of itself at- tempts an unjust, partial, and unnatural disposition of the decedent's estate. For if the disposition appear on the whole a just and reasonable one, or even such as the testator would naturally have made, under all the circumstances, with a due perception of the act engaged in, the property possessed, and the fit claimants to his bounty, little remains to urge against the will unless it can be positively shown that the will, not- withstanding, was not that of the alleged testator. No will can be attacked for fraud, force, or undue influence, unless some one is wronged by it ; and no one is wronged, be the disposition fair or unfair, on general principles, unless worse off under the will in question than without it. But a will should be natural ; and by this our law infers not so much 1 Donnely Re, 68 Iowa, 126. Nedby v. Nedby, 11 E. L. & Eq. 106; That a husband's undue influence may Marsh v. Tyrrell, 2 Hagg. 84. vitiate his wife's will, see supra, § 60; ^ See Shailer v. Bumstead, 99 Mass. 121. 250 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 238 natural in the sense of conformity to our average human nature, as natural because conformable in the concrete, to the nature and disposition of the person who made it. Whether, then, the will were contested for incapacity or for fraud or undue influence, it is always proper to inquire whether the provisions of the will are just and reasonable, and accord with the state of the testator's family relations, or the contrary ; for if they are, that circumstance is decidedly favorable to sustaining the will ; while, on the other hand, if it makes an inequitable distribution of the property, or one quite different from what was naturally to be expected, this circumstance tends in the opposite direction.^ And in our present connection this may involve two inquiries : one, whether the alleged testator while clearly sound and under no constraint cherished essentially different intentions from those expressed in the instrument under consideration ; the other and more general one, whether the intentions here expressed are just and natural, taking the sound and free testator as his own criterion. Then, of course, remains the third inquiry whether the party suspected of influence or fraud, derives from this will some undue advantage. Thus, if the provisions of a will executed by some old, feeble, and dependent person should ibe shown to differ essentially from his previously known intentions or declarations while in full mental vigor, the difference being in favor of those who stood in confiden- tial relations with him, and the will itself grossly unequal, these circumstances would bear strongly against sustaining it.2 Gross and unaccountable inequalities in the disposition of a will require in general some satisfactory evidence, that it was the free and deliberate offspring of a rational, self- poised and clearly disposing mind ; and when such evidence is wanting, the will should be set aside.^ And the fact that strangers in blood receive the testator's whole property is a suspicious circumstance, if such strangers stood in a position 1 Fountain v. Brown, 38 Ala. 72. 2 Bradf. 42; Walker v. Hunter, 17 Ga. 2 Thompson's Will, 13 Phila. 403; 364; Mitchell's Estate, 43 Minn. 73. Wilson's Appeal, 99 Penn. St. 545; Lee « Harrel v. Harrel, 1 Duv. 2o3; Gay V. Dill, 1 1 Abb. Pr. 214; Fountain v. v. Gillilan, 92 Mo. 250. Brown, 38 Ala. 72; Weir v. Fitzgerald, 251 § 239 LAW OF WILLS. [PART II. where opportunities to dictate the disposition might have been abused.^ The harmony of the will with the testator's habit- ual disposition and affections, while physically and mentally sound, is thus eminently worthy of consideration.^ But circumstances vastly important in connection with other facts, may weigh little by themselves ; and no suspi- cion of undue influence, force, or fraud can rest upon simple proof that the last will differed in tenor from the testator's previously declared intentions.^ For what testator may not, and does not, change his intentions ? But the force of the fact that there was a change of testamentary intention de- pends mainly upon its connection with other facts ; a change may be rationally or irrationally made ; and if it appears on the whole that the will was the free act of a competent tes- tator, the justice or injustice of its provisions, even to the disinheritance of offspring, cannot be alleged to defeat it. In short, if the testator made a change upon reasons satisfactory to himself, it is no ground for setting the will aside, that those reasons would seem inadequate to the court.* Yet, if reasons cannot be shown, and some change, some perversion appears unexplained, while the instrument discloses on its face a manifestly unjust, unnatural, and partial scheme of distribution, and more especially one which favors those hav- ing free access to the testator and full opportunity for fraud or overbearing influence, to the exclusion of those who had not, the general repugnance felt by mankind to wills harsh and unnatural may well resolve all final doubts and condemn it.5 § 239. Burden of Proof, as to Fraud, Force, or T7ndue Influ- ence. — The burden of proving fraud or force in the procure- ment of a will (unlike the simple issue of testamentary capacity 8), lies upon those who contest the instrument; and 1 Cramer v. Crumbaugh, 3 Md. 491. exertion of an influence not palpably 2 See Marx v. McGlynn, 88 N. Y. undue, may yet fail readily from these 357- combined circumstances, see Marshall ' Wood V. Bishop, I Demarest, 512. v. Flinn, 4 Jones L. 199; Martin v. * Horn V. Pullman, 72 N. Y. 269; Teague, 2 Spears, 268; Taylor v. Wil- Gleespin's Will, 26 N. J. Eq. 523. bum, 20 Mo. 306. ' That unjust wills, procured by the ? Sttpra, § 170, etc. 2S2 J^ CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 239 anything which imputes heinous misconduct to a party con- cerned and interested in its execution ought to be fairly established by a preponderance of proof.^ As to undue influ- ence, in the usual and less offensive sense, the burden of proving affirmatively that it operated upon the will in ques- tion lies still on the party who alleges it, either by direct evidence or proof of circumstances.^ In any such case, how- ever, we assume that it has already been proved satisfactorily by the proponents that the will had been duly executed by a person of competent understanding and apparently a free agent,^ " In order to set aside the will of a person of sound mind," observes Lord Cranworth, " it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence ; it must be shown that they are inconsistent with a contrary hypothesis." * And the same holds true where positive fraud or force is the ground of objection.^ Hence is it that isolated and disconnected circumstances are not permitted to outweigh the usual .presumption of the ' law that a person of intelligence and capacity who executes a will does so without imposition or undue influence. Thus, the simple fact that the later will modifies an earlier one in favor of one who drew it up is held insufficient to overcome such a presumption.® Or, generally^ that the testator's draughtsman or one whose advice was sought by him re- ceives a legacy under the will.'^ Or that the will itself differs in tenor from former wills of the testator.* Or that legiti- mate influence was exercised by the party who derives a 1 Bird V. Bird, 2 Hagg. 142; Hagan ' See preceding chapter; Baldwin v. V. Yates, I Demarest, 584; Stouten- Parker, 99 Mass. 79. burgh V. Hopkins, 43 N. J. Eq. 577. ■• Boyse w. Rossborough, 6 H. L. Cas. 6. Conspiracy is not readily suspected. 47 ° See Marx v. McGlynn, 88 N. Y. N. J. Eq. 244. 357; Fritts v. Denemberger, 12 N. J. 2 Boysew. Rossborough, 6 H. L. Cas. Eq. 129; Brown v. Mitchell, 75 Tex. 9. 6; Glover v. Hayden, 4 Cush. 580; Local statutes bear sometimes upon such Tyler v. Gardiner, 35 N. Y. 559; Jack- controversies. 54 Conn. 119. son's Will, 26 Wis. 104; Webber v. « Booth v. Kitchen, 3 Redf. 52. Sullivan, 58 Iowa, 260; Rees v. Stills, ' Post v. Mason, 91 N. Y. 539; Wil- 38 Penn. St. 138; i Con. (N. Y.) 373; son v. Mitchell, loi Penn. St. 495. But Richmond's Appeal, 59 Conn. 226. see § 245, /oJ^. 8 Wood V. Bishop, I Demarest, 512. 2S3 § 239 LAW OF WILLS. [PART U. benefit.^ Or that peculiar opportunities for secretly direct- ing the testator existed.^ For undue influence must be not only alleged but proven.^ As for forgery, undue influence, and fraud, in obtaining the testator's signature to a different instrument from that which he intended to sign, these are offences too grave to be lightly inferred from circumstances which are capable of an innocent construction.* And if the provisions of the will are natural and consistent with the testator's understood wishes, and all the more where those charged with exerting undue influence derive no advantage from the will, the strongest proof of misconduct should be required.^ Even the will of a very feeble and aged testator may be upheld against circumstances justly creating suspicion, if the jury upon the whole evidence believe him to have been capa- ble, and are not satisfied that fraud or undue influence in- duced the execution of the instrument.^ And a long lapse of time intervening between the date of execution and the testator's death, during which the testator was relieved of the constraint and might have revoked the will had he chosen, must strengthen the case in favor of its establish- ment.' 1 See § 229. 52, 181, 384; Thompson v. Davitte, 59 2 Dale's Appeal, 57 Conn. 127; 25 Ga. 472; Layman v. Conrey, 60 Md. Neb. 535. 286; Andrews Jie, 33 N. J. Eq. 514; 8 Coffman 7/. Hedrick, 32 W. Va. 119. 33 N. J. Eq. 239. One may reasonably * Hagan v. Yates, i Demarest, 584; prefer the relative who has taken care 47 N. J. Eq. 44. of him in his last years above those who * Supra, § 227. have not. McCoy v. McCoy, 4 Redf. 6 See Wilson v. Mitchell, loi Penn. 54 ; Kise v. Heath, 33 N. J. Eq. 239. St. 495. Or be persuaded to reward services of ' See Wilson v. Moran, 3 Bradf. 172; friend or relative by a legacy. 13 Phil. Shailer w. Bumstead, 99 Mass. 125; 302. But unreasonable changes of dis- Lamb I/. Girtman, 26 Geo. 625; O'Neall position, especially in superseding the V. Farr, i Rich. 80; 31 Ala. 59. natural objects of bounty in favor of Neither general bad treatment nor others who give casual attention, where general kindness will of itself establish no relative is at hand, raise a suspicion, undue influence. Tawney v. Long, 76 Van Kleeck v. Phipps, 4 Redf. 99. And Penn. St. io6. Nor will motive and if mental incapacity be shown, it is im- opportunity alone. 7 Oreg. 42. Nor material whether undue influence was merely suspicious circumstances. 26 exercised or not; for the will is suffi- N. J. Eq. 523. And see 3 Redf (N. Y.) ciently vitiated. 254 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 24O § 240. The Same Subject : Evidence in Point freely admitted. — But circumstances, slight of themselves, may, in connec- tion with other facts, prove strong enough to turn the scale against the alleged will. Where the issues raised are fraud and undue influence, any evidence, however slight, tending to prove those issues, is freely admitted.^ Suspicion may at once rest upon the will in controversy, from the facts brought out as to the testator's soundness of mind ; and where some feeble and decrepit or dying person, whose reason totters in its seat, appears to have been brought under a strong or exclusive influence to make an unfair will such as he was not likely to have made at his own instance, combined circum- staaces adverse to probate, like these, become of so great consequence, that the burden shifts easily upon those who set up the instrument and have, after all, the general onus of sustaining it.^ Indeed, there appears at times a conflict in the cases, con- cerning this burden of proof, so that evidence which in one instance may be thought plainly inadequate for shifting the burden upon the propounder of the will, puts him in another to repelling the unfavorable imputation which mere circum- stances afford. This discrepancy is best met, first by con- ceding freely that all maxims for balancing the proof of fraud, force, or undue influence, must be sensitive and variable ; and next, by pointing out that the burden of impeaching a will on such grounds rests far more positively upon a con- testant where the fraud, force, or undue influence in question is made a distinct issue, there being no doubt that the testa- tor was rational, intelligent, and capable, than in those cases far more common, where issues of insanity or incapacity are closely blended with these darker ones, and the proof tends to setting aside the will on either ground. For here the line is not easily drawn nor the burden easily fastened.^ iBeaubienf. Cicotte, 12 Mich. 459; 238; Harvey v. SuUens, 46 Mo. 147; Clark V. Stansbury, 49 Md. 346. See Ray v. Ray, 98 N. C. 566. Thornton w. Thornton, 39 Vt. 122. ' Hoar, J., in Baldwin v. Parker, 99 * See Marx v. McGlynn, 88 N. Y. Mass. 79, makes some sensible remarks 357; Swenarton v. Hancock, 22 Hun, upon this point, and cautiously con- 38; 1 1 Abb. Pr. 214; Welsh Re, l Redf. eludes as follows : " But where the issue 255 § 242 LAW OF WILLS. [PART II. § 241, Proof of Fraud, Forgery, etc. — Fraud will vitiate a will. And such fraud, it is held, need not be proved by direct and positive testimony ; but any facts, however slight, bearing at all upon the point, and not wholly irrelevant, may be admitted, provided that they are strong enough, when combined, to satisfy the jury of the existence and operation of the fraud. ^ Parol evidence is admissible both to prove or to counteract proof of a fraud, notwithstanding the will itself must be in writing; for the purpose in such a case is not to vary or control what is written,, but to impeach the validity of the instrument itself. Hence oral proof may establish that one will was surreptitiously obtruded for another, and that the testator executed it ignorantly ; ^ or it may rebut a charge of this nature.^ But a testator's own declarations to prove that a will apparently regular was forged, or that he was fraudu- lently induced to execute it under the belief that it was some other paper, are hearsay and inadmissible.* § 242. Character of the Evidence to establish Fraud or Undue Influence. — Issues relating to fraud, force, or undue influence, and especially the last, are generally determined upon circumstantial evidence, and inferences drawn from a full presentation of facts inconclusive when taken separately. Hence the wide range of inquiry permitted, in cases of this description, so as to set before the jury or trier of the issue whatever bears upon the preparation of the will. While the point of inquiry concerns the testator's condition, and the ex- ternal influences brought to bear upon him at the time the of undue influence is a. separate and 1 Davis v. Calvert, 5 Gill & J. 269; distinct issue, involving proof that the Tucker v. Calvert, 6 Call. 90; Eudlong's testator, though of sound mind, and Will, 126 N. Y. 423. intending that the instrument which he ^ Doe v. Allen, 8 T. R. 147. executes with all the legal formalities s j)oe v. Hardy, i Moo. & R. 525. shall talte effect as his will, was induced * Boylan v. Meeker, 4 Dutch, 274. to execute it by the controlling power See § 243, ;;orf. On the question whether of another, we think the weight of au- a certain instrument offered for probate thority and the best reason are in favor is forged or genuine, evidence of con- of imposing upon the party who alleges temporary matters tending to show a the undue influence the burden of prov- motive for forgery is admissible; Ken- ing it." nedy v. Upshaw, 64 Tex. 411. 256 CHAP. X.,] ERROR, FRAUD, AND UNDUE INFLUENCE. § 242 alleged will was made, the character of those influences may invite much study of their motives, their origin, and growth; and a comparison of counteracting forces in order justly to estimate their probable effect ; and as for a testator's condi- tion, his entire moral and intellectual development is more or less involved in the issue. "All that is peculiar in tempera- ment or modes of thought," observes a careful judge, "the idiosyncrasies of the man, so far as susceptibility is thereby shown, present proper considerations for the jury. They must be satisfied by a comparison of the will, in all its pro- visions, and under all the exterior influences which were brought to bear upon its execution, with the maker of it as he then was, that such a will could not be the result of the free and uncontrolled action of such a man so operated upon, before they can by their verdict invalidate it." ^ So, too, is it admissible to prove that former wills or former testamentary plans embodied a different purpose, as tending to show whether or not the testator has understand- ingly and of his own free will changed his settled plans in favor of the present arrangement ; while the justice or injus- tice of that arrangement, the natural or unnatural character of the will offered for probate, may open a wide inquiry into family circumstances; for evidence tending to show the relation of a testator to the natural objects of his bounty, the feelings he entertained towards them, and their pecuniary condition, bears upon the issue of undue influence as well as of capacity.^ In establishing the charge of fraud or undue influence, it is further observed that "two points must be sustained: ^ Colt, J., in Shailer v. Bumstead, 99 Staser v. Hogan, 120 Ind. 207; Me- Mass. 121. And see Lucas v. Parsons, lanefy v. Morrison, 152 Mass. 473; 27 Ga. 593; Jackson w.Kniffen, 2 Johns. Crocker ii. Chase (Vt.), i East. Rep. 31; Reynolds v. Adams, 90 IlL 134; 755. Evidence showing through what Pierce v. Pierce, 38 Mich. 412; Car- line of relatives, or from what sources, penfer t>. Hatch, 64 N. H. 573. The the fortune bequeathed was derived, or inference of fraud from the faicts is for favors received, may have a bearing the jury, and not a conclusion of law upon the natural or unnatural character to be drawn by the court. Horah v. of the disposition. Glover v. Hayden, Knox, 87 N. C. 483. 4 Cush. 580; Patterson v. Patterson, 6 2 Beaubien. v. Cicotte, 12 Mich. 459; S. & R. 55. Campbell v. Carnahan (Ark.), 1890; 257 § 243 LAW OF WILLS. [PART II. first, the fact of the deception practised or the influence exer- cised ; and next, that this fraud and influence were effectual in producing the alleged result, misleading or overcoming the party in this particular act. The evidence under the first branch embraces all those exterior acts and declarations of others used and contrived to defraud or control the testator ; and under the last, includes all that may tend to show that the testator was of that peculiar mental structure, was pos- sessed of those intrinsic or accidental qualities, was subject to such passion or prejudice, of such perverse or feeble will, or so mentally infirm in any respect, as to render it probable that the efforts used were successful in producing in the will ofFered the combined result. The purpose of the evidence in this direction is to establish that liability of the testator to be easily affected by fraud or undue influence which con- stitutes the necessary counterpart and complement of the other facts to be proved. Without such proof, the issue can seldom, if ever, be maintained." ^ Experience shows that direct proof of undue influence or fraud is rarely attainable ; but inference from circumstances must determine it ; at the same time, facts and circumstances adduced ought to lead, justly and reasonably, to the unfavorable conclusion, in order to defeat the will.^ § 243. The Same Subject : Declarations of the Alleged Tes- tator. — Many decisions, not altogether harmonious, relate to the testator's declarations in issues of the present kind. The general rule is, that a testator's previous declarations are 1 Colt, J., in Shailer v. Bumstead, 99 339. And it is further observed in this Mass. 121. See also Dietrick i/. Diet- sensible opinion, that if the facts proved rick, 5 S. & R. 207; Potter v. Baldwin, are such that a rational mind might in 133 Mass. 427; 17 W. Va. 683; 35 reason and fairness draw from them the N. J. Eq. 120, 446. conclusion sought, it is the duty of the ' See Saunders's Appeal, 54 Conn, court (where appeal is made from 108. the judge of probate who tries in the " Undue influence is generally proved first instance) to submit the case to the by a number of facts, each one of which jury; their province being to decide standing alone may be of little weight, the existence of undue influence at the but taken collectively may satisfy a time of the execution of a will, like any rational mind of its existence." Stone, other question of fact. lb. J., in Moore v. McDonald, 68 Md. 321, 258 CHAP. X.j ERROR, FRAUD, AND UNDUE INFLUENCE. § 243 admissible within a liberal range for the purpose of throwing light upon his mental condition, his exposure to constraint or fraud, and the surrounding circumstances of the testamentary- act. As, for instance, his statements that he disliked or feared the person whose coercion is imputed in the case, that he was not master in his own house, that he had to submit in his course of life, or else there would be trouble, — and the like.i So, too, in connection with other proof of fraud or undue influence, are one's declarations made at different times, and at distant intervals, down to the making of the will, which disclose a long-cherished purpose of disposing of his estate quite differently from what the will provides as pro- pounded ; 2 or statements showing dislike or affection for the natural objects of his bounty or for those favored in the alleged will.^ A testator's previous declarations are likewise admissible in support of the will which is impeached, as showing a long-cherished purpose on his part to make a tes- tamentary disposition like that in controversy, or in other respects rebutting the idea of fraud or undue influence.* By the weight of authority a testator's subsequent decla- rations are admissible when they denote the mental fact at the date of execution which is to be proved, or are close enough in point of time to make part of the res gestce ; or where they repel the favorable inference naturally arising from the fact that an ambulatory instrument remains unre- voked after the alleged fraud or coercion has ceased to oper- ate ; or where they tend to show that the state of mind, or the feelings, opinions, peculiarities of character, existing when the alleged will was made, continued to operate, so as all the more to discredit the instrument set up as apparently the formal and deliberate expression of his will at the period in 1 Beaubien v. Cicotte, 12 Mich. 459. Shailer v. Bumstead, 90 Mass. 112; Cf. Bunyard v. McEIroy, 21 Ala. 311. Waterman v. Whitney, i Kern. 157; 2 Wooton V. Redd, 12 Gratt. 196; Robinson v. Adams, 62 Me. 369; Beau- Denison's Appeal, 29 Conn. 399; Neel bien v. Cicotte, 12 Mich. 459; Whitman V. Potter, 40 Penn. St. 483; Dye ». z;. Morey, 63 N. H. 448; 64 N. H. 573. Young, 55 Iowa, 433; Moore v. Mc- * Roberts v. Trawick, 17 Ala. 55; Donald, 68 Md. 321. O'Neil v. Murray, 4 Bradf. 31 1 ; Gardner » Shallcross v. Palmer, 16 Q. B. 751; v. Frieze, 16 R. I. 640. 259 § 243 ^^"^ o^ WILLS. [part II. question. 1 Declarations made long after the will are not,, it is true, permitted by the best authorities to show by way of narrative or independently as facts, that fraud or un.due influence was practised at the former and essentiali date of execution ; ^ for this would be to contradict by hearsay evi- dence, after one's death, what the solemn instrument in writ- ing, unrevoked and witnessed, declares was hia intention while living ; and it is scarcely possible that a foundation for impeaching the will, should it deserve at all to fail, cannot be better laid than upon such weak and treacherous testimony.^ Such declarations are not, however, to be rejected, if admis- sible on other grounds like those we have indicated, and where a foundation has already been laid for bringing them in to corroborate better proof bearing upon the. main issue ; and it remains for the presiding judge carefully to point out how far these declarations must be rejected or received as evidence by the jury.* Declarations made at any distance of time after the will was executed are all the less pertinent to show fraud and undue influence, where the will itself has remained in the testator's possession and control uncan- celled;* and mere declarations, whether previous or subse- quent to the will, amount of themselves to very little in the face of a prima facie showing that the testator was a thor- oughly competent person, enjoying normal health, and under no appai-ent coercion or stress of error when be executed the 1 Comstock v. Hadlyme, 8 Conn. v. Valvankenberg, 90 Ind. 433; 36 N. 254; Robinson v. Hutchinson, 26 Vt. J. Eq. 259, 603; 4 Dutch. 274. 38; Waterman v. Whitney, i Kern. « Obtained, as such hearsay declara- 157; Howell V. Barden, 3 Dev. L. tions may be, by deception or undue 442; Richardson v. Richardson, 35 Vt. influence, and always liable to the in- 338; Griffith V. Diffenderffer, 50 Md. firmities of human recollection, "their 466; Potter V. Baldwin, 133 Mass. 427; admission would go far to destroy the Stephenson v. Stephenson, 62 Iowa, security which it is essentia! to pre- 163; Reyholds f. Adaws, 90 111. 134; serve." Colt, J., in Shailer v. Bum- 66 Iowa, 754. stead., 99 Mass, 122. 2 Smith v.. Fenneri i Gall. 170; Run- ♦ Shatter v. Bumstead, 99 Mass. 122, kle ». Gates, ii Ind. 95; Jackson v. and authorities cited. And see John- Kniffen, 2 Johns. 31; Thompson v. son i/. Lyford, L. R. i P. & D. 546. Updegraff, 3 W. Va. 629; Vance v. s Smith v. Fenner, i Gall. 170; Run- Vance, 74 Ind. 370; La Bau v. Van- kle v. Gates, 11 Ind. 95. derbilt, 3 Redf. 384; Vanvalkenberg 260 GHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 244 instrument,^ especially if he looked personally after the details of drawing and executing his own will." In short, a testator's declarations, whether made before or after the execution of the will, aside from the time of execu- tion itself, are admissible chiefly to show his mental condi- tion or the real state of his affections ; and they are received, rather as his own external manifestations than as evidence of the truth or untruth of facts relative to the exertion of undue influence upon him ; they may corroborate, but the issue calls for its own proof from the living.^ And the more remote such declarations from the time when the will was executed, the less becomes their value. Declarations impertinent to the issue, moreover, are not admissible at all.* § 244. Declarations, Admissions, etc., of Legatees or Parties in Interest. — As in contests which involve a testator's men- tal capacity,^ so is it, according to the best authorities, with issues of fraud and undue influence, that the declaration or conduct of a legatee or party in interest, is not to be shown in evidence by way of an admission against interest, so long as other parties who would be affected thereby are not jointly interested nor in privity with them.® The declarations against their interest of legatees who are not parties to the proceed- ings in court are in general inadmissible.'^ But the admissions and declarations of a sole legatee may be thus proved against his interest ; * and courts have been disposed to admit such 1 See Hoshauet v. Hoshauer, 26 ford, 86 Ind. 262; 28 Minn. 9; Robii}- Penn. St. 404; Booth v. Kitchen, 3 son v. Stuart, 73 Tex. 267. Redf. 52. Diaries or letters written by ^ Pembertott Re^ 40 N. J. Eq. 520. a testator, though admissible to show » Bush ». Bush, 87 Mo. 480; Middle- the condition of his mind and feelings, witch v. Williams, 45 N. J. Eq. 726 are not competent evidence of the f^cts Herster v. Herster, 122 Penn. St. 239 stated therein to prove fraud or undue 40 N. J. Eq. 520 ; 153 Mass. 487 influence. Marx v. McGlynn, 88 N. Eastis w. Montgomery (Ala.) 1891. Y. 357. Declarations of the testator's * 134 U. S. 47. feelings when admitted may be shown * Supra, § 195. to have no foundation in fact. Can- « Shailer v. Bumsteald, 99 Mass. 129, ada's Appeal, 47 Ccnn. 450. And evi- and cases cited. dence of declarations expressing only ' 99 Mass. 129; Carpenter w. Hatch, dissatisfactioft with one's will and not 64 N. H. $73. tending to sho^^ undue influence or « Ware w. Ware, 8 Greenl 42; Nus- fraud is krelevant. Ryman v. Craw- sear v. Arnold, I3 S. & R. 323; Fair- child V. Bascomb, 35 Vt. 398. And see 261 § 245 LAW OF WILLS. [PART II. evidence for the purpose of setting aside, if possible, the legacy of any one who has thus confessed himself a party to the fraudulent procurement of a will.^ § 245- Suspicious Circumstance that the Will is dravrn by the Party deriving a Benefit. — In issues of fraud or undue influence, the circumstance that a party who derives under the will a disproportionate benefit or a benefit to which he had no natural claim is the party who drew it lends disfavor to the instrument, and may turn the scale against its admission to probate. The universal maxim of law treats one who writes himself the heir as lending suspicion to the writing. The civil law made little of setting aside any will which was written or prepared by the party deriving the essential benefit under it.^ Our common jurisprudence does not adopt this rule in its full stringency ; nevertheless a sense of propriety and delicacy clearly suggests that one who is to be directly benefited by a will to the considerable detriment of others in legal interest, should refrain from conducting the execution of it ; and it is well settled that any will, prepared or pro- cured by one thus interested in its provisions, imposes an additional burden, if assailed, upon those who seek to estab- lish it ; for the court, or the trier of the case, regards that circumstance with suspicion and jealousy, and desires to be satisfied that the paper which is propounded expresses the true will of the deceased and not that of the interested party .^ But on due explanation given, as all the evidence shows, and Bush V. Bush, 80 Mo. 480; Saunders's « i Redf. Wills, 158, 159; 1 Wms. Appeal, 54 Conn. 154; 54 N. Y. Supr. Exrs. 351. 77- » Croft li. Day, i Curt. 7S4; Barry 1 See Morris r. Stokes, 21 Geo., 552; v. Butlin, i Curt. 637; s. c, 2 Moore Blakey w. Blakey, 33 Ala. 611; Shailer P. C. 480; Paske -v. OUat, 2 PhUlim. V. Bumstead, 99 Mass. 129, by Colt, J.; 323; Coffin v. Coffin, 23 N. Y. 9; Dela- Dotts V. Fetzer, 9 Penn. St. 88; Jack- field v. Parish, 25 N. Y. 9; \ Redf. son V. Jackson, 32 Ga. 325 ; Wilbur (N. Y.) i ; Duffield v. Morris, 2 Har- w Wilbur (111.) 1891. The declara- ring. 375; 5 Ga. 456; Hughes i/. Mere- tions of a legatee tending to show dith, 24 Ga. 325; Downey v. Murphey, that she exercised undue influence are i Dev. & Bat. 82; Gerrish v. Nason, not admissible where her husband is 22 Me. 438; Cuthbertson's Appeal, 97 executor and -^ party to the suit. Penn. St. 163; Patton v. Allison, 7 Crocker v. Chase (Vt.), I East. Re- Humph. 320; Adair v. Adair, 30 Ga. porter, 755. 102; Cheatham z;. Hatcher, 30 Gratt. 56. 262 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 245 the suspicion removed, the will stands, no matter who pre- pared it.^ In short, the fact that the will was drawn by a favored legatee, while it calls for suspicious scrutiny of the circumstances, does not of itself invalidate the will, but the triers of the case weigh all the proof. And our later cases appear to rule that wherever the testator's draftsman may be thought worthy of some generous token, undue influence and fraud are not presumed from the fact that the will gives him a legacy accordingly.^ Nor is the testamentary act void, though the person who makes the will in his own favor is the agent and attorney of the testator ; though the suspicion against the will becomes all the stronger, in proportion as the testator was weak-minded, ignorant, or feeble, and must have confided in his draftsman's superior skill and experience.^ It is by no means uncommon in our States at this day, though a practice liable to abuse, for professional advisers to draw up wills which confer upon themselves all the influence and emolument of executor and trustee. Should the adviser write himself down, besides, for a legacy unreasonably great, being no natural claimant upon the testator's bounty, the will ought to be looked upon with no little suspicion.* And the conduct of a professional man has sometimes avoided the will prepared by him on the ground that he allowed the testator to remain ignorant of legal consequences which would influence the instrument in his own favor as actually drawn up.^ 1 Rusling V. Rusling, 36 N. J. Eq. that the legal adviser and draftsman 603; ib. 269; 4 Redf. (N. Y.) 441 ; receives a legacy not unreasonably 45 N. J. Eq. 173. A court need not great. Post v. Mason, 91 N. Y. 539. instruct a jury that the fact that the But cf. Cramer v. Crumbaugh, 3 Md. draftsman is largely benefited under the 491, where the draftsman wrote himself will is always a suspicious circumstance, executor, and with his son, both stran- 64 Md. 138. And see Carpenters, gers in blood, took the chief part of the Hatch, 64 N. H. 573. estate. See also Carter v. Dixon, 69 2 Post V. Mason, 91 N. Y. 539; Car- Ga. 82. ter V. Dixon, 69 Ga. 82. Cf. Yardley « Walker v. Smith, 29 Beav. 394; V. Cuthbertson, 108 Penn. St. 395. Hindson v. Weatherill, 5 De G. M. & * I Wms. Exrs. 112; 4 Hagg. 391; G. 301. 3 Hagg. 587; St. Leger's Appeal, 34 In Barry v. Butlin, i Curt. 637 Conn. 434; I Con. (N. Y.) 18. (1838), Baron Parke announces in < But . no presumption of fraud or precise terms the rule which requires undue influence arises from the fact the court's suspicion to be overcome, 263 § 246 LAW OF WILLS. [part ir. § 246. Confidential Relation in General implies Opportunities which must not be abused. — ^In general, the existence of a confidential relation, as between guardian and ward, attorney and client, physician and patient, or even religious adviser and layman, is of a nature which implies peculiar opportuni- ties outside the family relation, for influencing duly or unduly the making of a will -contrary to the natural disposition of before probate is granted of a will which is written or prepared, by the party who takes a benefit under it. But he further disclaims the notion, that at our law there is any particular measure of unfavorable presumption, in such cases, which the propounder «f the will must overcome, or any par- ticular species of proof to be applied for that purpose, by way of additional evidence that the testator was not im- posed upon. And he presses (what in such cases ought never to be left out of view) the extent, the proportion of the benefit which the party thus laid under suspicion has essentially derived under such a will. For instance, a man of immense fortune might bestow a certain sum by way of legacy upon his confidential adviser, without raising any serious suspicion to be overcome by special proof that the testator knew what he was about and acted freely; while a legacy of the same amount which would absorb the greater part of a moderate estate, to the sacrifice of the testator's immediate relations and their rights, would be viewed with far greater jealousy. Various other consid- erations, we may add, occur in the same connection; whether, for instance, this fact stands by itself or tends, with other facts, to establish fraud or undue influ- ence ; whether the draftsman had a natural claim; the character and situ- ation of the parties; the harmony of the will with the testator's known inten- tions; and so on. To conclude in Baron Parke's own words, this drawing or pre- paring of the vrill amounts in no case to more than " a circumstance of suspi- cion, demanding the vigilant care and circumspection of the court in investi- gating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did ex- press the real intentions of the deceased." See also Coffin v. Coffin, 23 N. Y. 9, where the draftsman was also one of the nearest relations of the testator. Sinister conduct attending the exe^ cution of the will, as shown in keeping those away who were adversely inter- ested, taking exclusive custody of the instrument after it was signed, etc., bear unfavorably against a draftsman. HoUingsworth's Will, 58 Iowa, 526; Drake's Appeal, 45 Conn. 9. So does proof of the testator's mental weakness or liability to imposition. Cuthbert- son's Appeal, 97 Penn. St. 163; Dale V. Dale, 38 N. J. Eq. 274. Or that the draftsman made alterations of the instru- ment in his own favor under such cir- cumstances. Yardley v. Cuthbertson, 108 Penn. St. 395. Or that the will did not harmonize with the testator's general intentions. 7Lans. 443; Morris V. Stokes, 21 Ga. 552. See 4 Redf. (N. Y.) 409,441. But secrecy maintained in making or executing the will may be satisfactorily explained, § 231. And a draftsman or attorney may receive a moderate legacy from a competent testator, without rais- ing an assumption of unfair dealing on his part. Loderw. Whelpley, iii N.Y. 239; Soule's Will, I Con. (N. Y.) 18. The mere presence of legatees (such as rela- tives) at the execution of a will raises no inference of undue influence. 264 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 246 blood or marriage. Such opportunities must not be abused ; and whenever a will appears to have been procured through the zealous intervention of one occupying this favored posi- tion, to his own especial advantage, and to the prejudice of natural objects of one's bounty, fraud and undue influence will readily be inferred, unless all jealous suspicion is put to rest by the evidence adduced to sustain it.^ At the same time such an unfavorable suspicion amounts to nothing more than a presumption of fact, and may always be overcome by proof that a testator of suitable intelligence made his will as he saw fit.^ The bearings of this doctrine may be gathered from our previous section. Equity appears often to have so far pre- sumed a fraud, where one holding such a confidential relation takes a gift, as, at least, to have imposed upon him the onus of disproving it. Certainly no such strict rule pertains to the law of wills ;^ and in gifts of this character the beneficiary may have been utterly ignorant of the giver's intentions, and stand entirely clear of personal influences upon the disposi- tion ; while the gift itself remains revocable and may only be disclosed at the donor's death, when the essential question to be answered is, what disposition shall take effect upon his estate, and when others in interest and not the donor himself, are parties to any litigation for setting the gifts by his pur- ported disposition aside. All that can be safely said is, that the especial gift, together with the opportunity for procuring it, affords ground for suspicion ; and that for establishing the will it must be satisfactorily shown that the testator was of 1 See cases cited in preceding sec- to the guardian, raises a strong suspi- tion; Harvey v. SuUens, 46 Mo. 147; cion of unfairness which should be Tyler v. Gardiner, 35 N. Y. 559; Soule repelled. Meek v. Perry, 36 Miss. I90. Re, I Con. 18; Moore v. Spier, 80 Ala. But this suspicion being repelled by 129. In Yardley v. Cuthbertson, 108 suitable proof, the will is sustained. Penn. St. 395, where the testator, while Breed v. Pratt, 18 Pick. H5. sick and enfeebled, cut down former ^ I Con. (N. Y.) 18; 46 N. J. Eq. legacies four-fifths in a codicil which 515. Evidence that the testator made gave the residue to his confidential unequal gifts among his next of kin adviser, it was held that the suspicion during his life is admissible. Eastis v. of undue influence was inferable, and Montgomery (Ala.) 1891. required to be repelled. The will of a « See Parfitt v. Lawless, L. R. 2 P. ward, giving all or nearly all the estate D. 462. 265 § 246 LAW OF WILLS. [PART II. sound mind, that he clearly understood the contents of the will, and that he was at the time under no undue or improper constraint of volition, such as to destroy his own free agency. The superiority attached to such an influence is its distin- guishing trait ; the relation being such that the testator, especially if of weak or declining power, leans upon a guide, in whose honor he must confide, and that honor a court of equity is bound to insist upon. Yet the strength of the suspicion in each case must depend upon its own circum- stances ; and where it does not appear that the fiduciary drafted the will, advised as to its contents, or even knew it was to be made, there can be no imputation of fraud or undue influence so far, at least, as his connection with the testator is concerned, whatever reasons for assailing the will may be founded in the misconduct or confidential relations of others.^ The benefit thus derived by one who holds a confidential relation, need not be a strictly personal one in order to excite suspicion ; ^ for undue advantages procured for those of his own household, or church fellowship, for institutions or busi- ness establishments in which he is strongly interested, and 1 Bristed v. Weeks, 5 Redf. 529. (Note the dissent in this case.) Where To sustain a will made in favor of a testator embraces spiritualism, and the the testator's religious adviser, to the medium or adviser alienates his affec- exclusion of the natural objects of his tions from his family and procures a bounty, there must be some proof be- vpill in his own favor, it should be set sides the making of it. But if the will aside. Thompson v. Hawks, 14 Fed. is shown a consistent one, and freely Rep. go2; 7 Oreg. 7. As to legacies and intelligently made, it will be sus- to one's spiritual adviser, see further tained. Marx v. McGlynn, 88 N. Y. 88 Ala. 462. As to a physician who 357; 4 Redf. 455; 6 Dem. 166. Even was made sole legatee, see 6 Dem where a religious adviser draws or ac- 299. tively prepares a will in favor of the That a beneficiary was the testator's church or charitable institution which partner raises no presumption of undue he represents, ignoring the natural heir, influence. Brooks's Estate, 54 Cal. slight circumstances may justify a jury 471. in inferring undue influence. lb.; 5 " See Welsh 7?«, I Redf. 238; Drake's Mo. App. 390; Welsh ^«, I Redf. 238. Appeal, 45 Conn. 9. The disfavor vidth And suspicions requiring an explana- which a bequest from a ward to his tion may be raised by the facts and guardian is regarded extends to a be- surrounding circumstances, even though quest to the guardian's wife. Bridwell the will in favor of a church was drawn v. Swank, 84 Mo. 455. And see 43 and its execution procured by vestry- N. J. Eq. 154. men. Drake's Appeal, 45 Conn. 9. 266 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 247 the like, may in a broad sense be intended for his own bene- fit ; and so, too, where, to gratify some disUke of his own, he gets the testator to disinherit a blood relation. But the fairer and more disinterested the influence he exerts, the less does the confidential adviser expose himself to suspicion. The fact that the person largely benefited lived with the testator establishes a confidential relation in a sense.^ § 247. Proof that the Testator kne'w the Contents of the ■Will. — Where error, fraud, or undue influence is charged, stricter proof than usual may be needful to show not only capacity, but that the testator knew the contents of the instrument he executed. In ordinary cases, to be sure, the formal execution of the^ will by a person who can read and write imports a knowledge of its contents.^ But where it is shown that the testator, being blind, illiterate, or very feeble, could not have gained this knowledge unaided, more positive proof that he actually knew and assented is required to repel any suspicion which circumstances may have cast upon the good faith of the transaction ; as, for instance, where the draftsman or party managing the execution of the will takes a disproportionate interest under it.^ It is not necessary to prove in such cases that the will was read over to the testa- tor, nor to show written instructions from him ; but it should appear that in some way its contents were correctly imparted to him and corresponded with his wishes.* And it 1 116 Penn. St. 612; 6 Dem. 84; *Ib.; Barry v. Butlin, i Curt. 637; Grove v. Spiker, 72 Md. 300 (where a Moore v. Moore, 2 Bradf. 261 ; Huss's stranger went to live with a weak- Appeal, 43 Penn. St. 73; Day v. Day, minded woman, and soon gained great 2 Green Ch. 549. Thus, it might be dominion over her). shown that the will was copied from a 2 Beall V. Mann, 5 Ga. 456; 20 Ga. previous paper whose contents the tes- 709; Frear ». Williams, 7 Baxt. 550; tator fully understood and approved. Vernon v. Kirk, 36 Penn. St. 268; Day v. Day, supra. But if it appear Pettes V. Bingham, 10 N. H. 514; that essential alterations or deviations Downey v. Murphey, I Dev. &B. 82; were made in the copying, further Smith V. Dolby, 4 Harring. 350. proof is needful to show that the altera- 8 Davis ». Rogers, I Houst. 44; tions or deviations were expressly un- Hughes V. Meredith, 24 Ga. 325 ; derstood and approved, or else that the Kelley v. Settegast, 68 Tex. 13; 115 instrument stands in its final form. Penn. St. 32; Lyons v. Campbell, 88 Chandler ». Ferris, I Harring. 454. Ala. 462; Wilbur v. Wilbur (lU.) 1891. 267 § 248 LAW OF WILLS. [part IL should be borne in mind, that where fraud or undue influence is imputed, proof of the testator's actual knowledge of con- tents and soundness of mind do not alone establish the will, but his free volition should appear besides.^ § 248. Probate in Part, where Fraud, Undue Influence, etc., operated in Part. ^— It is considered by good English and American authorities, that where fraud or undue influence has been exercised in obtaining advantages under a will, the whole will is not necessarily vitiated, but the gifts thus wrongfully obtained may be declared invalid while the will is in other respects admitted to probate.^ So, too, the wrongful alteration or insertion of a pecuniary legacy in a will, by the legatee or a stranger, is held not to avoid the will as to other bequests.^- And the same would appear to hold true where such alteration has been innocently made.* For if the fraud or error tended plainly to some partial and particular result while the instrument as a whole embodied the disposition of a person of sound and disposing mind and free volition, the testator having fully determined to make his will, innocent legatees ought not to be punished indiscriminately with those who were in the wrbng. But to separate for probate the volition and non-volition portions of a will is not commonly practicable ; for fraud and undue influence are found usually lo have permeated the whole disposition and even to havfe set the alleged testator to making it. Hence we may lay it down, that fraud or undue influence in procuring one legacy or devise does not invalidate other legacies or devises which evidently proceed from the free will of a competent testator, and are separable ; but if the fraud or undue influence taints inseparably the entire will, though exerted by or in behalf of one legatee only, the whole disposition must fail.^ In other 1 Yardley v. Cuthbertson, 108 Pena. » Smith v. Fenner, I Gall. 170; Mor^ St. 395. rell V. Mofrell, 7 P. D. 68. 2 Allen ■0. M'Pherson, i H. L. Cas. * lb. And see Whitlock v. Watd- 191; I Jarni. 36; Welsh ^r, 1 Redf. law, 7 Rich. 453; 91 Penn. St. 236. 238; Trimlestown v. D'Altott, i Dow ^ Flotey ii. Florey, 24 Ala. 241; (N. S.) 85; Morris v. Stokes, 21 Geo. Welsh Re, 1 Redf. (N. Y.) 238; Ba- 552; Harrison's Appeal, 48 Ccnath ao2; ker's Will, 2 Redf. 179. 54 Conn. 119. The inquiry whether the will Was 268 CHAP. X.] ERROR, FRAUD, AND UNDUE INFLUENCE. § 250 words, where part of a will has been introduced through fraud, or perhaps inadvertence, it may be rejected, and pro- bate granted of the residue, if the two are severable ; but not Otherwise.^ § 249. In General, a Full Probate does not insure against a Partial Failure in Effect. — On the other hand, a decree of the court of probate not appealed from does not absolutely con- elude that all its provisions are valid in their full effect, as they appear expressed, but construction or further litigation may establish to the contrary. As if a person too young under the statute to make a will of realty, but old enough to make one of personalty, should execute a testament embrac- ing both kinds ;2 or where the will can be pronounced inopera- tive and void in parts, in consequence of the subject-matter and the character of the disposition attempted.^ If the will may take effect in any part, it is properly admitted to probate, notwithstanding some of its provisions should prove void eventually from one cause or another.* § ^50. Full or Partial Failure of Probate through Incapacity, Fraud, Error, etc. — In fact, courts of probate exercise com- plete control over the will, in case of fraudulent insertion or alteration, or of incapacity during the execution of part.^ A word or clause in the will introduced by mistake or fraud, without the testator's knowledge or approval, may, at judicial discretion, be stricken out.® A will defaced or mutilated by a 1;eptator while non compos is, if possible, to be pronounced procured through fraud or undue influ- standing the probate. But cases of tfei? ence cannot be stifled by any prohibi- sort can seldom arise outside the pro- tion contained in the instrument itself; bate court, as legislation now provides, for this would allow fraud to protect See supra, §§ 39-44, as to disability of fraud. Lee v. Colston, 5 T. B. Mon. infants. 246. Cf. 19 Ohio St. 546; § 605. 8 Bent's Appeal, 35 Conn. 523; 38 1 Rhodes v. Rhodes, 7 App. Cas. 192. Conn. 26. A codicil which ought to fail is thus * George v. George, 47 N. H. 27. severable from a valid will and prior * Welsh Re, i Redf. 238, 248. codicils. See Ogden v. Greenleaf, 143 » Morrell v. Morrell, 7 P. D. 68; Mass. 349. Duane, Goods of, 2 S. & T. 590; supra, 2 Dickinson v. Hayes, 31 Conn. 417. § 248; Rockwell's Appeal, 54 Conn. It was here held that the will might be 119. contested in an ejectment suit, notvrith- 269 § 25 1 a LAW OF WILLS.' [PART II, for in its original integrity.^ Codicils, moreover (which are as much a part of wills as if actually incorporated into the instrument, and draw the will down to their date), are on similar grounds rejected, leaving the will to operate without one or another of them, as justice may require.^ § 251. Inspection of Instrument by Jury. — Where the issue of mental capacity or undue influence is raised, and a jury tries the question of fact, the authentication of the instrument in probate in due form of law should be determined by the court. But the instrument in contest may be submitted for inspection to the jury ; and there is no impropriety in allow- ing this inspection, before the evidence is given, but often the reverse ; since the evidence must be tested by the instru- ment in question.^ The instrument offered should of course be considered in connection with the other evidence adduced, and not by itself alone.* § 25 1 A. Mental Capacity and Undue Influence are Distinct Issues. — In a controversy over the probate of an instrument as one's last will and testament, mental capacity and undue influence are distinct issues, and probate may be refused on the one ground or the other.^ 1 Scruby v. Fordham, i Add. 74; 3 ' Rees v. Stillfe, 38 Penn. St. 138. Hagg. 754; Batton v. Watson, 13 Geo. * Vance p. Upson, 66 Tex. 476; Mid- 63, dlewitch v. Williams, 45 N. J. Eq. 726. 2 Brounker v. Brounker, 7 Phillim. ° See Dexter v. Codman, 148 Mass. 57; Sherer v. Bishop, 4 Bro. C. C. SS; 121, where the court set aside the find- Billinghurst v. Vickers, .1 Phillim. 187; ing of a jury on the former ground, but I Wms. Exrs. 42; I Bradf. 360; 143 sustained it on the latter. Mass. 349. 270 PART III. FORMAL REQUISITES OF A WILL. CHAPTER L WHAT CONSTITUTES A WILL. § 252. TVills are written or unwritten; Modern Legislation requires most Wills to be in Writing and duly witnessed. — Having finished our subject of testamentary capacity, and dealt sufficiently with the person who makes a will, let us now proceed to consider the testamentary instrument itself and its essential constituents. As to the general nature of a will our law sets forth two kinds : (i) the written, and (2) the oral or nuncupative. But at the present day, the statutes both of England and the various American states, insist, that, with a few stated exceptions, all wills, whether relating to real or personal property, or to both, shall be expressed in writing ; and moreover that this written instrument shall be formally executed in presence of a stated number of witnesses. The effect of such legislation is to abolish much of the old learning which pertains to the subject, and leave our testa- mentary law to shape itself in a modern and more precise mould. Even so recent a writer as Blackstone ceases to be a standard authority ; for, while conceding that the Statute of Frauds, 29 Car. H. c. 3, has laid nuncupative or unwritten wills under many restrictions, he draws the line boldly be- tween devises of real estate and wills of personal property, as constituting dispositions of quite a different nature ; and as to the latter kind, lays it down that they need no witnesses, nor even the testator's own signature, if only the testator be shown to have written it or caused it to be written.^ This 1 2 Bl. Com. 501, 502. 271 § 253 LAW OF WILLS. [PART III. unquestionably was English law when Blackstone discoursed ; but what that eminent expounder pointed out as the safer and more prudent way, and indeed the method which in Bracton's early time borrowed a sanction from Roman jurisprudence, namely, that the will be signed [or sealed] by the testator, and published in the presence of witnesses,^ has, since 1 838, be- come, for real and personal property alike, the imperative rule in England ; ^ while in this country, where the feudal system never found a chance to take root, local experience brought various local legislatures quite early to the same discreet and harmonizing policy. 29 Car. II. put the fir§t strong curb in both countries upon frauds and perjuries in wills of personal property ; and from that landmark of legislation the sturdy sense of both England and most American States worked independently towards the more radical reform, here embodied in various local enactments differing somewhat in general principle, but there in the statute of i Vict. c. 26, passed in 1837, and familiarly styled the Statute of Wills. ^ § 253. Reed and Personal Property now treated alike; but not so formerly. — While the former differences prevailed in point of formality, which the Statute of Frauds did not pre- tend to overcome, it would often happen that a will which sought to dispose of both real and personal property would take effect as to the latter, but fail as to the former for insufficiency in signing, sealing, or witnessing. But by Stat. I Vict. c. 26, the same formalities concerning execu- tion and attestation (but with two instead of three witnesses) are prescribed for property of every description ; and upon all wills made in English jurisdiction later than 1837 does the new rule operate.* In this country the prevailing policy at this day makes no distinction of formalities between the different kinds of 1 2 Bl. Com. 502. testamentary act taking effect from the " I Wms. Exrs. Preface; 2 Jarm. mind of the testator and manifested by Wills, Appendix. an instrument in writing. Bayley v. 8 See supra, §§ 14-16. Bailey, 5 Cush. 245. The term "will" in our modern legis- * See preface to i Wms. Exrs.; 2 lation has a broad scope, and may Jarm. Wills, Appendix, usually be said to include every kind of 272 CHAP. I.] WHAT CONSTITUTES A WILL. § 254 property ; ^ but the will, whatever the description of property to which it relates (and property real, personal, or mixed, are in these days usually embraced together), requires the same mode of subscription and attestation. But there appear to be a very few States of this Union still, where wills of real estate must be executed and attested with formalities less indispensable for disposing of personalty.^ § 254. But American Statutes relating to 'Wills are of Local Origin. — But here let us remark, what never should be for- 1 The legislation of most of our Amer- ican States on this subject is based upon the English Statute of Frauds, and insists that three (or at least two) witnesses shall subscribe, and that the will of real estate itself shall be in writing and signed by the testator. From this start- ing-point of a devise, legislation and practice tended to the requirement that wills of personal property should be in writing arid similarly executed and at- tested ; and at length the local law has reached a general and uniform system. Wills must now be written and attested by either two or three witnesses, as the legislature may have preferred, but with the same number for both real and per- sonal property. Many States model their testamentary law after the Massachusetts statute, which dates back to 1836, and requires wills both of real and personal estate to be in writing and signed by the testator, or by some person in his pres- ence, and by his express direction, and attested and subscribed in his presence by three or more competent witnesses. In this State the English Statute of Frauds was re-enacted in 1783; and this extension to personal property ante- dates by a year the English enactment of Victoria. Various States, again, have copied the New York statute, whose verbal expres- sion is quite different, and which re- quires, like the new English statute of Victoria, two instead of three witnesses. See McElwaine Re, 18 N. J. Eq. 499. There are others of the original States, such as Pennsylvania and Virginia, whose legislation on the subject does not resemble that of either Massachu- setts or New York. See Hegarty's Appeal, 75 Penn. St. 503. In Pennsyl- vania, a subscription by witnesses is in many instances dispensed with. § 256, post. The laws of South Carolina, until recently, required three witnesses to a will of real estate only; but the same formality is now extended to wills of personalty. On the other hand, in Mississippi, wills, if not wholly written out by the testator, require the attesta- tion of three witnesses for real estate, and only one for personalty. In Ten- nessee, the code discriminates. Davis V. Davis, 6 Lea. 543. See the local statutes referred to; also i Jarm. Wills, 77, Am. Ed. Bigelow's note; holograph wills, post. When Chancellor Kent wrote his Commentaries, wills with a formal execution by the testator and witnesses were scarcely required in the United States except for devising real estate. See 4 Kent Com. 505. The civil code of Louisiana embodied a system altogether unique, which other States do not adopt. All wills are here divided into three leading classes : (l) nuncupative or open wills (which have acquired a peculiar signification in Louisiana practice) ; (2) mystic or sealed wills; (3) olographic (or holo- graph) wills. The details of execution in each instance are set forth minutely. See La. Rev. Civ. Code, § 1567 et seq. 273 § 255 ^^"^ °^ WILLS. [part III. gotten, that our various American statutes relating to wills are of local and independent origin ; and though their strong tendency is to harmonize in general essentials, they always differed and must continue to differ in particulars as well as mode of expression ; and that while the local disinclination to change such statutes is founded in obvious reasons, every radical change in State legislation must be held to operate by its local date of enactment. All this serves as a caution preliminary to discussing the formal requisites of a testament' ; and tg add to the confusion of precedents we must observe further, that the testamentary law of continental Europe has influenced various States at the South-west, colonized by French and Spanish settlers, — Mississippi and Louisiana, for instance, — in favor of holo- graphs and other peculiar modes of testamentary disposition with which the pure Anglo-Saxon stock is little familiar. § 255. Holograph Wills; hovtr far recognized by Legislation. — Under statutes like those of England, Massachusetts, and New York at the present day, and, indeed, by the policy which now prevails throughout England and most parts of the United States, holograph wills, or those written out by the testator's own hand, stand on no privileged footing, but require to be attested like any other testaments. Of such wills of chattels, to be sure, it was formerly held that if the name of the testator was written by himself in any part of the instrument, his final signature at the end might well be dis- pensed with ; ^ and it must ever be taken that writing one's own will affords the strongest proof of authenticity and a deliberate purpose ; yet, whoever writes out the will, the 1 Griffin v. Griffin, 4 Ves. 197 n.; to it, nor witnesses present at its publi- Coles V. Trecothick, 9 Ves. 249 ; 3 Lev. cation, is good, provided sufficient proof 1 ; 2 Bl. Com. 501 ; Gilb. 260. " I speak can be had that it is his handwriting." not here of devises of lands, which are 2 Bl. Com. 501. Though written in quite of a different nature, being con- another man's hand, and never signed veyances by statute, unknown to the by the testator, it might be proved to feudal or common law, and not under be according to his instructions and the same jurisdiction as personal testa- approved by him; but such establish- ments ; but a testament of chattels, ment of a will was, of course, more ' written in the testator's own hand, difficult. See ib. though it has neither his name nor seal 274 CHAP. 1.] WHAT CONSTITUTES A WILL. § 256 same necessity exists at the present day, for a formal signa- ture, and a specified number of subscribing witnesses. But in a few of the States holograph wills are expressly recognized, following usually the Louisiana civil code on this subject,! but in some instances originating in the old English colonial law. The holograph will, under such statutes, dis- penses with subscribing witnesses and the usual proof of a formal execution ; but these codes require it to be entirely written, dated, and signed, by the testator's own hand.'' This handwriting being proved, the will becomes legally estab- lished.^ The Tennessee and North Carolina codes guard such a will with still greater caution in some respects ; the writing must come from unsuspected custody for safe-keeping or be found among the testator's valuable papers, in order to be thus privileged.* § 256. other Statute Peculiarities as to Form, Signature, and Attestation. — In Other respects a few American codes con- tain peculiar provisions as to the form, signature, and attesta- tion of wills. Thus the Pennsylvania statute appears to have long dispensed with formal attestation, even in a devise of lands, provided the authenticity of the will can be proved by at least two competent witnesses.^ The dictation of a will 1 La. Civ. Code, arts. 1581, 1588. and West Virginia. The Arkansas ' lb. But cf. Reagan v. Stanley, 1 1 statute requires a holograph will to be Lea. 316; Myrick Prob. (Cal.) 5. It is proved by three disinterested witnesses, sufficient compliance with the Louisiana swearing to their opinion, though no code, that the holograph will bears date subscribing witness is needed. See also in a certain month and year without 34 Fed. 82; Stirason's Am. Stat. Law, naming the day. Gaines v, Lizardi, 3 § 2645. No such holographic will can Woods C. Ct. 77. hxc a will in the ordinary form. 8 13 S. & M. 406; II Humph. 377, 6 See I Jarm. Wills, Am. Ed. Bige- 465; Davis V. Williams, 57 Miss. 843. low's note; Hight v. Wilson, i Dall. If a printed form is filled up by the tes- 94; i Watts, 463. Proof of the testa- tator, this is not a holograph will, tor's signature thus afforded is prima Rand's Estate, 61 Cal. 468. 1 facie evidence of its execution though ^Tate V. Tate, 11 Humph. 465; 91 the will was not a holograph. Wiegel N. C. 26. V. Wiegel, 5 Watts, 486. As to his Holograph wills are favored in the holograph, see 131 Penn. St. 220. If wills acts of Kentucky, Tennessee, Mis- the testator be in extremis, his signature ' sissippi, California, and Louisiana. So, is dispensed with; but otherwise, the too, as it appears, by the codes of Arkan- will should be signed by him, or by some sas. North Carolina, Texas, Virginia, one in his presence, and by his express 275 § 257 LAW OF WILLS. [part IIL while in extremis stands, moreover, under some local codes, upon an exceptional footing of favor.^ § 257. A 'Will not properly executed and attested, is Inop- erative under Modern Statutes. — Under our modern statutes which require a will to be duly executed and attested by a certain number of subscribing witnesses, in order to give it effect, there can be no judicial evasion in favor of informal writings. Hence, if an instrument is in its true character testamentary, but has not been properly attested, the fact that the maker never revoked or repudiated it during his life. direction; and in all cases two or more competent witnesses (though not sub- scribing ones) should establish its au- thenticity. 5 Whart. 386; Showers v. Showers, 27 Penn. St. 485. See Wall V. Wall, 123 Penn. St. 545, where the testator died before his intended will was finished. As to the Maryland code, with respect to a will of chattels, see Byers v. Hoppe, 61 Md. 206. In Tennessee, entries made in one's diary, which purport to dispose of the writer's property after his death, may constitute a holographic will. Reagan V. Stanley, II Lea, 316. Even although neither signed nor attested, these entries may be set up as a will of personalty, on sufficient proof ^of the handwriting, lb. A holograph will is not deprived of that peculiar character by the fact that there are witnesses to it. Roth's Succession, 31 La. Ann. 315. And see for the case of a holograph will estab- lished where an ineffectual attempt was made to formally execute a clean copy of it, Wilbourn v. Shell, 59 Miss. 205. See § ■^\2,post. In Virginia a holograph will, with the testator's name at the commence- ment but not subscribed, with a blank lieft for the date, and containing an attestation clause but no witness, is held to be not well executed. Waller v. Waller, i Gratt. 454. See Warwick v. Warwick, 86 Va. 596. But in North Carolina an instrument with the requi- 276 site number of witnesses, one of whom is decided to be incompetent, may be proved, nevertheless, as a holograph will. Brown v. Beaver, 3 Jones, 516. In Kentucky a will which is wholly written out and signed by the testator requires no attestation. Toebbe v. Wil- liams, 80 Ky. 661. But an unattested codicil, written and subscribed by the testator, and hence executed as the stat- ute requires, cannot bring into operation an unattested will not wholly written by the testator. 83 Ky. 584. And see 80 Va. 293. In Skerrett's Estate, 67 Cal. 585, a letter addressed to a sister, with a copy of a deed of gift — all in the brother's hand — was probated as a holographic will. As to the validity of a holograph will under Scotch law, see Whyte v. PoUok, 7 App. Cas. 400. 1 See Pennsylvania rule as stated in preceding note ; also Godden v. Burke, 35 La. Ann. 1 60; Hegarty's Appeal, 75 Penn. St. 503. To constitute a good will of person- alty, by the Maryland rule, the paper must either be complete on its face, or if incomplete and defective, it must ap- pear that the testator intended it to operate as his will, in its finished or in- complete state, or that he was prevented from completing it by sickness, death, or some other casualty. Plater v. Groome, 3 Md. 134. CHAP. I.] WHAT CONSTITUTES A WILL. § 258 gives it no validity for a probate.^ Nor can the paper thus intended to operate as a will be turned into a declaration of trust, so as to defeat the statute which prescribes how such wills shall be executed.^ In short, that which was intended as a will cannot legally take effect as such, unless executed with such formalities as public policy may have seen fit to impose for the better protection of titles against fraud and uncertainty.^ § 258. Requirement of Writing, ho'w satisfied ; Materials to be used. — The old Statute of Frauds, and the modern codes generally, require the will to be in writing ; and no compliance can be so natural and proper as the usual one, namely, the use of pen, ink, and paper. But if written in a printed or engraved blank, a will, like a deed, well satisfies the statute ; * and so, too, even though the entire will were printed, lithographed, or engraved (a practice certainly not so common, since every will must have its individual traits, and multiplied copies are useless), or prepared by the type-writer, hectograph, or any similar process.^ It is here to be observed that the policy of the law seeks materials and a mode of writing which shall sufficiently avoid the danger of fraudulent change or obliteration, and consti- tute for probate and public registry an instrument which shall express plainly and permanently on its face the testator's final language as to his disposition. As between ink and pencil, the former, or, at least, that substance whose marks cannot be erased without leaving a sure sign, is decidedly preferable; yet it is generally held that a will written or altered in lead-pencil instead of ink would be good.^ Doubt- 1 Gough V. Findon, 7 Ex. 48; Robin- 536; Adams, Goods of, L. R. 2 P. & D. son V. Schly, 6 Ga. 575; Watkins v. 367; Dench w. Dench, 2 P. D. 60; L. R. Dean, 10 Yerg. 320; Turner v. Scott, 3 P. D. 159. 51 Penn. St. 126; McCarty v. Water- ^ lb. It is a rule of long standing, man, 84 Md. 550, and cases cited. that where a statute requires writing, it 2 Long's Appeal, 86 Penn. St. 196. is satisfied by printing. Schneider v. * Equity courts cannot supply the de- Norris, 2 M. & S. 286. fective execution of a will. Robson v. ' Dyer Re, I Hagg. Eccl. 219; I Jones, 3 Del. Ch. 51. Add. 406; i Redf. Wills, 165; I Wms. * I Redf. Wills, 165; Henshaw z/. Fos- Exrs. iii; Dickenson v. Dickenson, 2 ter, 9 Pick. 312; Temple w. Mead,4Vt. Phillim. 173; Mence i/. Mence, iSVes. 277 § 259 LAW OF WILLS. [part III. less, there are extreme cases where one has not in his haste the choice of materials ; and if such extremity be shown, and the will proved a genuine one, signed and witnessed after the regular form, a court should not strain at fine objections. But while one may write his will upon any material and in any mode, when forced to do so, a risk is incurred where the selection of materials, deliberately made, is an imprudent one and obnoxious to the legislative policy. Thus, it is held in Pennsylvania that anything so easily rubbed out or altered as a writing on a slate, contravenes the policy of the law and can- not be admitted as a will, though intended by the decedent as her last will and testament.^ So, too, the use of a pencil or other materials undesirable for such solemn acts, may bear significantly upon the question, whether the act was per- formed with a full and final testamentary intent or only as something incomplete and preliminary. One may make erasures and alterations with a lead-pencil on a will prepared in ink, and the instrument so corrected may pass to pro- bate ; ^ but changes of this sort are never presumed to be de- liberate and intended for a bona fide final correction, but rather the reverse ; and in English probate practice the rule has long been established, to treat alterations made in lead- pencil as prima facie deliberative only, but alterations in ink as final and absolute.^ § 259. Language, Native or Foreign, in which a Testament should be expressed. — A testament may be written out in any language, provided the testator himself understands es- sentially what the will contains.* But with witnesses it 348; Bateman v. Pennington, 3 Moore 322, 490; i Add. 406; Dickenson v. P. C. 223; Myers v. Vanderbelt, 84 Dickenson, 2 Phillim. 173; L. R. 2 P. Penn. St. 510; Harris v. Pue, 39 Md. &D. 256. Where a printed form is fiUed 535; Knox's Estate, 131 Penn. St. up partly in ink and partly in pencil, 1 Reed V. Woodward, 1 1 Phila. 541. and the writing in ink makes sense with But whether a slate and pencil might the form without help from the writing not be used in an extreme case (such as in pencil, the ink form is to be consid- of course seldom occurs), there being no ered the true and final one. Adams, other writing' materials available, qucere. Goods of, L. R. 2 P. & D. 367. 2 See Fuguefs Will, 11 Phila. 75; i 4 i Wms. Exrs. iio; Swinb. pt. 4, Wms. Exrs. iii. § 25, pi. 3; Green v. Skipworth, i I Redf. Wills, 166; I Hagg. Ecc. PhiUim. 58 ; Walter's Will, 64 Wis. 278 CHAP. I.] WHAT CONSTITUTES A WILL. § 261 seems proper, as with the testator himself, to consider what knowledge enables the particular duty to be intelligently per- formed. A testator, even though ignorant of the language in which the will is expressed, should feel assured that the language used expresses his intention rightly; and where doubt is entertained on this point, the correctness and bona fides of the translation should be ' satisfactorily established in probate. As for witnesses, however, a knowledge of what the will contains is by no means indispensable in modern practice ; but such persons should at least know the nature of the act they are performing, and sign no attestation clause, at all events, whose meaning is not clear to their minds. ^ § 260. A "Will should be legibly written. — A will should be legibly written, in order to operate. But the aid of experts and those familiar with one's blind handwriting may be in- voked for the purpose of making clear what the will contains.^ For interpreting a cipher, too, or words in an unknown tongue, a corresponding rule is useful.* § 261. A Will need not be dated, etc. — As with formal attestation clauses, so with descriptions of the date or place of execution ; they are not material in any will unless the local statute expressly makes it so. Such formalities are certainly useful ; but wills have been sustained as valid, though having no date or even a wrong one inserted.* With 487. If the testator be a domiciled cuted with knowledge of its contents, is Englishman, the effect of the foreign valid although written in English, a tongue employed can only be looked language which the testator (here . a at in order to ascertain the English German) did not understand. Walter's expressions which correspond. Rey- Will, 64 Wis. 487. nolds w. Kortright, 18 Beav. 417. 1 Adams v. Norris, 23 How. 366; A will may be refused probate, where Breaux v. Gullusseaux, 14 La. Ann. 233. it appears in evidence that the alleged ^ In Masters v. Masters, i P. Wms. testator could not write nor understand 421, reference was made to a master in the English language, in which the chancer^ to find out, by taking testi- paper propounded was written, and that mony, the meaning of illegible words nothing was said or done indicating and figures in the will, that he knew he was making a will. « See Part VI. c. 3, /0J«', as to extrinsic Miltenberger v. Miltenberger, 78 Mo. 27. evidence to explain ambiguities, etc, But a will drawn in accordance with * Wright v. Wright, 5 Ind. 389; the testator's instructions, and duly exe- Deakins o. Hollis, 7 Gill & J. 311; 79 279 § 263 LAW OF WILLS. [PART III. reference to its effect or even to its legality, the date may be of much consequence ; but this may be established or cor- rected by parol evidence showing the real date of its exe- cution.i §262. Formal Words like "Will," "Testament," "Devise," "Bequest," are not Essential. — A will may be valid and operate as such (apart from legislation) without such formal words as "will," "testament," "devise," or "bequest." Thus where a will began, " The request of C. I want R. to have my place as long as he shall live," etc., it was held a valid one.^ And though a duly executed paper should say "I have given" instead of " I give," it may be shown that the intention was future and posthumous, so as to render it testamentary.* § 263. A " Will " is Something Imperative, though Softer Words are employed. — But a "will" is something imperative even though the testator should choose to employ some softer word to denote it. Doubtless his true intention, as the con- text may indicate, will operate in the details of the disposi- tion ; as in determining whether a party named in the will shall absolutely or at his own discretion perform a certain duty or appropriate a certain fund.* But, generally speaking, where property is given by testament to some person, who is recommended, requested, or wished, to dispose of it after a certain manner, this wish, request, or recommendation is commonly considered imperative and equivalent to creating a trust.^ And as for the will, the testamentary disposition Ky. 607; 40 Ark. 144. Compare § 255, Passmore v. Passmore, i Phillim. 218; supra, as to holograph wills and the Brunson v. King, 2 Hill Ch. 490; local codes which favor them. Knight v. Broughton, 11 CI. & F. 513. ' lb. And see post, § 595, as to construction 2 Camp V. Stark, 10 Phila. 528. And of wills. Lord Cranworth in Williams see Miars v. Bedgood, 9 Leigh, 361 ; v. Williams, i Sim. N. S. 358, lays it Wood, Matter of, 36 Cal. 75 ; Mundy's down that the real question in such cases Goods, 2 S. &T. 119. is, whether the testator means by such ' Coles, Goods of, L. R. 2 P. & D. expressions to govern the conduct of the 362. party addressed, or indicate what seems * Wells V. Doane, 3 Gray, 201, and to himself a reasonable exercise of dis- eases cited; Wynne v. Hawkins, i Bro. cretion, leaving it, however, to that C. C. 1 79. party to exercise his own discretion. * I Wms. Exrs. 108, and cases cited; 280 CHAP. 1] WHAT CONSTITUTES A WILL. § 264 itself, its natural operation is absolute and imperative, though never so gently expressed ; ^ for such an instrument as a will whose sanction rests upon the arbitrary discretion of a court or surviving individual, which prays instead of declar- ing a devolution of title, is almost unheard of, and never to be favored by construction.^ § 264. The General Form of Testamentary Instruments ; Effect of Legislation. — So much for the statute requisites, and the materials with which wills are written. Now to discuss more generally the form of testamentary instruments. In jurisdictions which insist that wills shall be not only signed but attested by two or perhaps three witnesses, and in those, most of all, where a formal clause of attestation cannot be dispensed with, any uncertainty as to what writings shall or shall not be pronounced testamentary ranges within a narrow compass. But while our law permitted any writing of a tes- tamentary sort to rank as a will of personalty without any attestation, without even the testator's signature subscribed to it, it must often have been a vexed problem to deter- mine whether a certain writing found among one's papers after his death was or was not to all intents a will and an efficacious disposition of his property. Even at this day, under the numerous statutes which pre- scribe attestation but no formal clause of attestation, such questions sometimes occur. Thus, in England or America, a paper amounting to little more than a mere draft upon a certain savings bank in favor of A. B., or some simple order -contained in a single sentence, may, if simply witnessed at the side of the drawer's signature by two persons or three (as the local statute prescribes) constitute a will.^ A will need name no executor ; it may avoid using such words as " last will and testament" ; it may take effect as a partial, rather 1 McRee v. Means, 34 Ala. 364. A ^ But see Smith, Goods of, L. R. I paper expressing a wish to give certain P. & D. 717, under §§ 285-290 /wA sums, and that neither executors nor » See 134 Mass. 426; Cock z/. Cooke, heirs will object to carrying out this L. R. I P. & D. 241; L. R. 2 P. & D. will is imperative. Carle v. Underbill, 3 362. Bradf. Sur. loi. And see Knox's Es- tate, 131 Penn. St. 220. 281 § . 26s LAW OF WILLS. [PART III. than total disposition of property ; there are no words or phrases essential to the devolution of title under such an instrument.^ § 265. No Testamentary Form Requisite, if there be the Tes- tamentary Intent. — The fundamental maxim is, that no par- ticular form of written testament can be insisted upon, pro- vided the maker of the instrument intended it to operate only at or after his death, and the instrument be executed with such formalities as local legislation may have imposed. Tes- tamentary intention, in other words, or rather an intention whose effect is to create a testament, entitles the instrument to probate, however inartificial its form, subject only to such restraints as legislation may have seen fit to impose, for the better prevention of fraud and perjury.^ Until within the last half century this doctrine has applied chiefly in favor of wills of personalty; to wills proper, subject to ecclesiastical direction, as contrasted with devises. And in much earlier times greater strictness prevailed in England than during the half century immediately preceding the enactment of i Vict. c. 26.^ 1 Byers v. Hoppe, 6i Md. 206. courts, where various kinds of instru- " There is nothing that requires so ments are sustained, as under the cir- little solemnity as the making of a will cumstances testamentary. As, for of personal estate, according to the ec- instance, a deed of gift. Thorold clesiastical laws of this realm; for v. Thorold, I Phillim. I; 2 Ves. Sen. there is scarcely any paper writing 440; Attorney-General v. Jones, 3 which they will not admit as such." Price, 368. Or a deed, whether exe- Lord Hardwicke, in Ross v. Ewer, 3 cuted by way of deed-poll or indenture. Atk. 163. But since the Statute i Habergham ». Vincent, 2 Ves. Jr. 231; Vict. c. 26 took effect, there is far less Shingler v. Pemberton, 4 Hagg. 356. force in such a statement, as the text Or a marriage settlement. Passmore v. above suggests. Passmore, i Phillim. 218; 2 Hagg. 2 Masterman v. Maberly, 2 Hagg. 554; 3 Hagg. 415; Thompson v. 248; Habergham v. Vincent, 2 Ves. Jr. Browne, 3 My. & K. 32. Or general 231; I Wms. Exrs. 104; Leathers w. instruments expressed after the form of Greenacre, S3 Me. 561 ; Brown v. articles of agreement, i Mod. 117; I Shand, i McCord, 409; Mealing v. Jarm. Wills, 18-23. But see 8 Ir. Eq. Pace, 14 Ga. 596; High's Case,, 2 567; Robinson's Goods, L. R. i P. & Dougl. (Mich.) 515. And see cases D. 385. Or a bond. Masterman v. below. Maberly, 2 Hagg. 235. Or a letter. ' I Wms. Exrs. 104. Passmore v. Passmore, 1 Phillim. 2i8; There are numerous English decis- 2 S. & T. 119,375; I Hagg. 130,488; ions, chiefly those of the ecclesiastical Denny v. Barton, 2 Phillim. 575. Or a 282 CHAP. I.] WHAT CONSTITUTES A WILL. § 266 I 266. The Same Subject. — The effect of such an informal instrument being to give a posthumous destination to the maker's property, any contrary title or designation which he may have given does not prevent the court from treating it as a will.^ As where words of immediate grant are expressed in the document and yet, on the whole, the intention was that of a future operation upon the signer's death.^ And, dispensing as it might with execution and a formal attesta- tion in wills of chattels, our former probate law was led often to treating as a testament what was quite as likely from its face to be nothing more than a memorandum of instructions for drawing one's will, or some other preliminary writing which embodied plans by no means matured at the disposer's death ; thus confirming in no slight degree by laxity of con- promissory note. 2 Hagg. 247. Or a Cowley v. Knapp, 42 N. J. L. 297. But draft on a bank. Bartholomew v. Hen- as to a marriage settlement, see Michael ley, 3 Fhillim. 317; 2 Curt. 650. Or z".. Baker, 12 Md. 158, where probate the assignment of a bond or indorse- was refused. Deeds, intended to oper- ment of a note to some party; 2 Hagg. ate as such, are not allowed to operate 247; Chaworth v. Beech, 4 Ves. 565. Or a memorandum of testamentary in- tention. Tapley v. Kent, i Robert. 400. as wills. Edwards v. Smith, 38 Miss. 197; Rice (S. C.) Ch. 243; Baltimore V. Williams, 6 Md. 235; Gumming v. Gumming, 3 Ga. 460; 5 Munf. 42; Many American decisions, especially Boling v. Boling, 22 Ala. 826; Sker- those not of recent date, are to the rett's Estate, 67 Gal. 585. Nor is a bond same effect. Thus, instruments which of no testamentary purport. Shields v. are ' in form a deed of gift, and so Mifflin, 3 Yeates, 389. Nor a paper of called, have been admitted to probate, preliminary instructions. Hocker ». out of regard to the giver's testamentary Hocker, 4 Gratt. 277; Plater v. Groome, purpose. Dunn v. Bank of Mobile, 2 3 Md. 134. And various informal Ala. 152; Mosser v. Mosser, 32 Ala. 551; Carey v. Dennis, 13 Md. i; Symmes v. Arnold, 10 Ga. 506; John- son V. Yancey, 20 Geo. 707; Allison v. Allison, 4 Hawks. 141; Ragsdale v. writings, letters, or memoranda, h&ve been ruled out from probate, as not constituting wills. Todd's Will, 2 W. & S. 145; Wagner v. M'Donald, 2 Harr. & J. 346. As for notes, orders, Booker, 2 Strobh. Eq. 34S; Millican v. indorsements, etc., see Hunt v. Hunt, 4 Millican, 24 Tex. 426. So is it with a N. H. 434; 6 Dana, 30; Plumstead's deed. Dudley v. Mallery, 4 Geo, 552; Appeal, 4 S. & R. 545. Evans v. Smith, 28 Geo. 98; Gage v. ^ i Jarm. Wills, l8; Rohrer v. Steh- Gage, 12 N. H. 371; Frederick's Ap- man, I Watts, 442; Leathers v. Green- peal, 52 Penn. St. 338; Ingram v. Por- acre, 53 Me. 561. ter, 4 McCord, 198; Watkins v. Dean, ^ Habergham v. Vincent, 2 Ves. Jr. 10 Yerg. 321. Or letters. Morrell v, Dickey, I John. Gh. 153; Leathers v. Greenacre, 53 Me. 561; i Gill & J. 25; Byers v. Hoppe, 6l Md. 206; 204; Walker v. Jones, 23 Ala. 448; Carey 11. Dennis, 13 Md. I; Stevenson V. Huddleson, 13 B. Mon. 299; Babb V. HairisoD, 9 Rich. Eq. iii. 283 § 267 LAW OF WILLS. [part III. struction that very uncertainty which the Statute of Frauds sought to remove from devises.^ § 267. 'Whether an Instrument is Testamentary or not, where Statutes require an Attestation, etc. — Under our modern stat- 1 See I Redf. Wills, 168, and notes; 1 Jarm. Wills, 101-104, notes. The presumption of the ecclesiastical courts has been against a paper whose face indicates that it was unfinished; but whenever the character of such a paper is equivocal, parol evidence may be introduced to show whether it was in- tended as a mere memorandum or a will. I Jarm. Wills, 104; i Hagg. 75, 661; Gillow V. Bourne, 4 Hagg. 192; Castle V. Torre, 2 Moore P. C. 154. But it may be shown that the deceased intended the paper in its actual condi- tion to operate as his will, or that he was. prevented by involuntary accident from completing it. I Jarm. 104. Papers were frequently refused probate where the testator had full opportunity to sign and did not, or attached an attestation clause, which might have been, but was not, subscribed by wit- nesses; this, however, simply by force of a presumption that the incompletion in fact signified incomplete intention; for the writing, even as it stood, was adequate as a will in writing to satisfy the requirements of the old law. Slight as the adverse presumption was, it had to be rebutted by some extrinsic evi- dence that the testator meant it to operate in its subsisting state, before probate could be granted. Beaty v. Beaty, i Add. 154; Harris v. Bedford, 2 Phillim. 177; I Jarm. loi. A dis- tinction, however, favorable to probate was taken where the testator had not fall opportunity of completing, but was prevented by sudden death, insanity, or other involuntary cause, from perform- ing the concluding act of signature or attestation; though obviously a sudden calamity like this might rather have Montefiore v. Montefiore, 2 Add. 354; I Jarm. 104. As between presumptions and oral proof, informal papers intended as wills, and inchoate or unfinished papers, it may be imagined through what a flood of uncertain litigation the courts wandered until the statute of I Vict. c. 26 introduced a stricter necessity for formal execution. There are numerous American decis- ions where wills of chattels have been admitted to probate upon similar grounds; no statute requirement being at the time transgressed. Thus in Watts V. Public Administrator, 4 Wend. 168; s. c, J Paige, 347, where (by re- versal of the chancellor's decree) a tes- tamentary paper, found among the papers of the deceased in an iron chest, properly drawn up, as it appeared, by the testator, and with his name at the beginning was held a valid will of chattels, though not authenticated by the testator's signature at the end, nor by the names of witnesses at the blank attestation clause, nor by any other very clear proof- that the deceased had in- tended it as the expression of his full and final testamentary purpose. Other American cases are to the same general effect : namely, that papers may be ad- mitted to probate, with the force of wills of chattels, on proof of extrinsic circumstances to show the animus tes- tandi, notwithstanding incompleteness on the face of such an instrument, and the utter omission of signatures either by attesting witnesses or the alleged testator himself; and the English pre- sumptions are applied to such cases. Witherspoon v. Witherspoon, 2 Mc- Cord, 520; Hocker v. Rocker, 4 Gratt. 277; Robeson v. Kea, 4 Dev. L. 301. stopped the decedent in the midst of And see § 255, supra, as to holograph deliberations and before his testamen- wills, tary purpose had fully worked out. 284 CHAP. I.] WHAT CONSTITUTES A WILL. § 267 utes, which embody the policy of the famous English Wills Act of 1837/ much of this former uncertainty as to wills, in- formal and inchoate, is obviated. Within the narrow sphere still assigned to nuncupative wills, parol evidence to authen- ticate writings, or to establish wills without any writing, of course avails.^ And we are further to remember that in a few of the United States a formal attestation by witnesses is not made indispensable to probate ; ^ while in various parts of this country holograph wills appear to have found a per- manent lodgement ; * not, however, in every instance, without more wholesome precautions against error and fraud, than the old ecclesiastical courts of England saw fit to insist upon. But even in England, as to wills executed since 1837, and in the great majority of American jurisdictions, where like formalities of signature and attestation must now be pur- sued, doubts may still arise whether a particular instrument ought or ought not to be probated as a will. This is because the law still permits the greatest flexibility of form and ex- pression in documents whose aim is a posthumous disposition of property ; and, while requiring a certain number of sub- scribing witnesses, moreover, leaves the form of attestation itself quite at discretion ; for should a statute make it impera- tive for witnesses to sign an attestation clause as such clauses 1 Appendix ; supra, % 252. Thus, an instrument after the form of * See c. post, on this subject. an assignment of a life insurance policy, * Sfipra, § 256. " to my wife M. after my death, when * Supra, § 255. she can do with it according to her best Under the Maryland code this was will, without partiality toward her chil- held a valid testament of personal prop- dren." Schad's Appeal, 88 Penn. St. erty, which the decedent wrote and iii. And the indorsement of address signed on the back of a business letter on a sealed envelope has been taken, and addressed to A. ; " After my death together with its contents, consisting of you are to have forty thousand dollars; a promissory note and an unaddressed this you are to have, will or no will; letter, as constituting together a valid take care of this until my death." testamentary disposition of the note in Byers v. Hoppe, 6l Md. 206, and cases favor of the party named on the enve- cited. And see Kelleher v. Keman, 60 lope. Fosselman v. Elder, 98 Penn. Md. 440. St. 159. A paper in the form of a In Pennsylvania, too, where subscrib- power of attorney may be admitted on ing witnesses may be dispensed with, due proof as testamentary. Rose v. under the peculiar policy of its code, Quick, 30 Penn. St. 225. See also various informal papers are sustained, Barton's Estate, 52 Cal. 538. as testamentary, by the later decisions. 285 § 268 LAW OF WILLS. [PART III. are usually written (namely, that the testator in their pres- ence signs and declares the instrument as his will), little con- troversy would remain, though doubtless many intended wills would fail of operation in consequence. § 268. The Same Subject: Late American Cases. — Thus, to suppose a written instrument drawn up somewhat like a deed or solemn contract ; or some writing in the form of a letter, a draft on a bank, or a memorandum. It is signed by the party since deceased ; two or three witnesses, the full statute number, have attested by writing their names at the side, as is often done in a deed or indenture. Is that instru- ment a will or not ? It complies with the local statute of wills in all essentials ; and yet no layman who reads it over could confidently pronounce it a will, more than a deed or some other kind of writing whose form it follows. Decisions that one might suppose at variance pursue the line of distinc- , tion appropriate in such cases. To mention a few examples from the later reports. In one Georgia case, an instrument, made out in the form of a deed, and yet attested by three witnesses, made a reservation of land to the maker's use during his life, and provided how all his property should go at his death, after his burial expenses and debts were paid. The maker of this instrument kept it while he lived. This, the court held, was a will.^ A few years later the same court passed upon another instrument, likewise drawn up like a deed, which also reserved to the maker the use of the land for life, and, by the advice of coun- sel, was attested by three witnesses. In other respects this latter instrument had none of the characteristics of a testa- ment ; it warranted the title to the grantee ; and the court pronounced it no will at all, but a deed of gift under reserva- tions.2 Generally speaking, an instrument in the form of a deed which is executed with testamentary formalities, and conveys all the property that the maker " may die possessed 1 Nichols V. Chandler, 55 Ga. 369. And see 66 Ga. 317 ; Robinson v. "Williams v. Tolbert, 66 Ga. 127. Schly, 6 Ga. 515; S> Ga. 239, 286 CHAP. I.] WHAT CONSTITUTES A WILL. § 268 of" is treated in this State as a will, and should be duly presented for probate.^ In other States, instruments made out in the form of a deed, but well executed for either deed or will, which convey a specified tract of land, or, as the case may be, all of the maker's estate real and personal, or his personalty only, have been pronounced wills and not deeds, because of the true import of the transaction ; especially if the instrument was retained by the signer as though revocable, or reference was made to the instrument as a will, or words usual in testaments were employed, or the real intent to be gathered " was, that no estate or interest in the property should pass until the maker's death.^ For among those devoted to agri- culture it is not unusual to purpose a sort of conveyance of the farm in contemplation of death, with a proviso for the maker's support during the rest of his life, and a suspension of the gift to make that support sure. The scope of such a transaction is testamentary, though the maker himself may not be fully aware of it.^ A testament may be made simply for the purpose of appointing an executor and giving him authority to act ; and any will of such a tenor which is duly executed and attested, ought to be admitted to probate, though brief and 1 Brewer v. Baxter, 41 Ga. 212. tions confers title upon A according to * Miller v. Holt, 68 Mo. 584; Arm- its tenor. Evans v. Lauderdale, 10 strong V. Armstrong, 4 Baxt. 357; Lea, 73. And see Mack's Appeal, 97 Freed v. Clarke, 80 Penn. St. 171 ; Penn. St. 313. Nor can instruments Jordan's Administrator, 65 Ala. 301; having the essential characteristics of Daniel v. Hill, 52 Ala. 430; 59 Ala. deeds be construed into writings testa- 349; Stevenson v. Huddleson, 13 B. mentary. Gumming v. Gumming, 3 Ga. Mon. 299 ; Frederick's Appeal, 52 460; supra, § 265, notes. As in the Penn. St. 338; Lautenshlager Re, 80 case of an absolute deed of trust with Mich. 285. reservation of an interest in the grantor. 3 On the other hand an indenture 3 Ga. 460, 569. Or a deed not execut- which provides that in consideration of ing a power, nor containing a power of certain services to be performed by A revocation, but confirming a will pre- fer B during the latter's life, A shall be viously made. 6 Md. 235. See Grain "the lawful heir of all the land B now v. Grain, 21 Tex. 790. Nor is a bond owns," and by which B agrees to give transaction, which absolutely transfers a most of his personal property presently sum of money, to be deemed testamen- to A is pronounced' not testamentary, tary. Hinkle v. Landis, 131 Penn. St but an executory agreement, which upon 573. substantial performance of the condi- 287 § 269 LAW OF WILLS. [PART HI. informal in expression.^ So is it with an instrument which leaves the testator's property "for distribution under the laws of the State." ^ Orders on savings banks, duly executed, have been upheld as testamentary upon slight phraseology to that effect.* And so with promissory notes.* Notwithstanding English precedents, we may regard it as the settled doctrine of most American States^ that a will must be perfect in the testamentary sense, and designed as something final in shape, and not preliminary, or it cannot take effect as a will ; and this, in conformity to the American policy, which prescribes certain formalities of execution as indispensable, including a due attestation by witnesses. Mere drafts or minutes of wills are therefore inadmissible to probate.^ But some of our earlier decisions, made under statutes less explicit, and possibly later ones, too, in States whose legislation still favors holograph wills, and otherwise departs from the general policy, appear to conform to a laxer principle.^ A paper drawn up as a memorandum of instruc- tions and then duly executed and attested as a will, would of course operate in its final character because of a correspond- ing change of purpose which the testator had properly carried out. § 269. The Same Subject : Late English Cases. — There are late English cases which present similar points of inquiry, under the operation of the new Wills Act. Thus, where a person on his death-bed executed, with all the formalities prescribed for a will, a paper in the form of a bill of exchange, the instrument was held entitled to probate ; and under the 1 Barber v. Barber, 17 Hun (N. Y.) estate of the testator to the devisee. 72. aingan v. Micheltree, 31 Penn. St. 25. 2 Lucas V. Parsons, 24 Ga. 640. ' '34 Mass. 426. And see English For other late instances of valid wills, cases cited post. brief and rather informal in expression, * Cover ■v. Stem, 67 Md. 449. see Wood, Matter of, 36 Cal. 75 ; Hall ° Vernam v. Spencer, 3 Bradf. Sur. 28 Ga. 330. An instrument 16; Rooff's Appeal, 26 Penn. St. 219; duly executed and attested, in the fol- Aurand v. Wilt, 9 Penn. St. 54; Lun- lowing words, "I do hereby will all I gren v. Swartzwelder, 44 Md. 482; have to my beloved wife, Jane, for her Hart v. Rust, 46 Tex. 556. to have and hold forever," is a sufficient ^ See Boofter v. Rogers, 9 Gill, 44. will to pass the entire real and personal 288 CHAP. I.] WHAT CONSTITUTES A WILL. § 27O circumstances it served as a codicil to his former will.^ A duly executed paper of this tenor, " L wish my sister to have my bank-book for her own use," was held testamentary, upon satisfactory proof that the deceased meant it to operate as a posthumous disposition and not as an immediate gift.^ And there are other cases where papers in the tenor of a gift or transfer of a fund, properly signed and witnessed, are pro- nounced testamentary, upon collateral or intrinsic proof that such was their design.^ A deed-poll, executed before two witnesses with the formality of a will, has been admitted to probate on evidence showing that it was only to take effect at the maker's death.* So have writings in the form of a letter, duly at- tested, where the intention shown was posthumous, even though the words of gift were not stated in the future tense.^ Also instructions for a will which have been duly executed as final* Letters sealed and directed to a person, which contain promissory notes, are held to be in effect a legacy ; and if not duly attested in accordance with the statute, they are inoperative.'' Where an instrument made out by a person abroad in the form of a power of attorney, but properly executed as a will, empowered another to collect the rents of his lands and pro- vided also for the disposition of the property in case of his own death before returning home ; this was held a good will of the land.* § 270. WTiether One Instrument may be partly a Deed or Contract and partly a 'Will. — There appears no legal objection to regarding the same instrument as partly a deed or contract and partly a will, partly for present and partly for posthu- 1 Jones V. Nicholay, 2 Rob. 288. were admitted to probate as testamentary ''Cock V. Cooke, L. R. I P. & D. instruments in Milnes w. Foden, 15 P. D. 241. 105. » Coles Re, L. R. 2 P. & D. 362; ' Coles, Goods of, 9 L. R. 2 P. & D. Robertson v. Smith, L. R. 2 P. & D. 362; Mundy's Goods, 2 S. &T. 119. 43; Marsden Re, I S. & T. 542. « Fisher's Goods, 20 L. T. 684. * Morgan's Goods, L. R. i P. & D. ' Gough v. Findon, 7 Ex. 48. 214. Revocable deeds-poll in which a ' Doe v. Cross, 8 Q. B. 714. And power of appointment was exercised see Rose v. Quick, 30 Penn. St. 225. 289 § 271 LAW OF WILLS. [PART IIL mous operation, if the maker chose to combine these pur- poses. As where one, going on a journey, embraces a power of attorney to manage his property and a testament dispos- ing of it in case of his death in the same duly attested instru- ment.i To probate the testamentary part of the document as a will in such a case is no violation of the maker's intent, but rather a sanction of it. It rarely happens, however, that a testamentary purpose is announced so awkwardly ; and the common presumption being, that an instrument was or was not intended to stand per se as a will, the court, if doubt ex- ists, must make its choice. In this latter sense alone should the dictum be understood that the same paper cannot operate both as a will and a deed.^ For notwithstanding certain pro- visions contained in a testamentary paper are intended to operate as a contract inter vivos, the instrument is none the less a will in regard to its other provisions.* But, on the other hand, an instrument intended as a deed or contract inter vivos cannot be treated as a will, even though worthless and inoperative (as, for instance, for want of delivery) in the other sense.* § 271. A Will is to be distinguished from a Gift Causa Mortis. — An intended will should be distinguished from an intended gift causa mortis of some chattel, which latter in- volves a delivery.^ Such a document, invalid for want of 1 Doe V. Cross, 8 Q. B. 714. Barker's 34; Edwards v. Smith, 35 Miss. 197; Goods, P. 251 (1891). And see Daw- Skerrett's Estate, 67 Cal. 585. son V. Dawson, 2 Strobh. Eq. 34; 6 Basket v. Hassell, 108 U. S. 267; Robinson v. Schly, 6 Ga. 515; Taylor 2 Schoul. Pers. Prop. §§ 135-198. As. J/. Kelly, 31 Ala. 59; Reed v. Hazle- to checks, promissory notes, etc., passed ton, 37 Kan. 321. over by way of gifts catisa mortis with- in Thompson V. Thompson, 19 Ala. out indorsement, see Veal v. Veal, 27 59; Robinson Re, L. R. i P. & D. 384. Beav. 303; Clement v. Cheeseman, 27 A paper may be testamentary in design Ch. D. 631; 2 Sch. Pers. Prop. §§ 167, as to part of the property and so ad- 197. missible to probate, but incomplete in It is a curious circumstance that while design as to another part and so far our modern statutes tend to restrain or inoperative. Devecmon -v. Devecmon, abolish the making of nuncupative or 43 Md. 335. oral wills, they freely permit gifts caiisa 3 Taylor v. Kelly, 31 Ala. 59. mortis which are of essentially the same * Dawson v. Dawson, 2 Strobh. Eq. character and equally liable to objection, 290 CHAP. I.] WHAT CONSTITUTES A WILL. § 272 proper attestation, cannot be sustained as a gift causa mortis, nor as an immediate assignment.^ § 272. The Teat in Doubtful Cases as between a Will and Some Other Instrument. — Now, to consider the true test in a doubtful case, as to whether the particular writing be really a will or some other instrument. It is the animus testandi in general which makes any instrument a will, or vice versa!^ And it is laid down in some cases that an instrument cannot be allowed as a will if, at the time of execution, the deceased did not intend to make his will, nor know that he was mak- ing it.^ This statement proves usually accurate; but in practice, and aside from legislation which requires one to de- clare it his will before witnesses, the criterion does not always serve. To take, for instance, that class of cases where the farmer makes a conveyance of his land in form, but with the idea of securing his sure support out of the property until death ; * here it is often hard to discover whether, technically speaking, the disposition was testamen- tary or not ; and in all probability the disposer himself had no clear opinion on that point. But the transaction itself is seen to be testamentary in character, or the reverse ; and as this is the transaction the maker intended, his instrument is declared a will or a deed accordingly. Even though he could be shown to have intended it as a will and attested it as such, this would not avail as against the actual transaction ; and so vice versa.^ In other words, to adopt the language of an eminent English judge, " whether the maker would have called this a deed or a will is one question ; whether it shall operate as a deed or a will is a distinct question that is to be governed by the provisions in the instrument." ^ 1 Hughes Re, W. N. (1888) 163. will when he executes it. Patterson v. 2 Lyles V. Lyles, 2 Nott. & M. 531. English, 71 Penn. St. 454. 3 Swett V. Boardman, i Mass. 258; <> Buller, J., in Habergham v. Vin- Combs V. Jolly, 3 N. J. Eq. 625. cent, 2 Ves. Jr. 231. * Supra, § 268. It is perhaps enough to say, that if * Whether a writing is a will, depends the maker intended a disposition which upon its contents, and not upon any was in legal effect testamentary, that declaration of the maker that it is a disposition will stand as testamentary. 291 § 273 LAW OF WILLS. [PART III. In short, to, determine the true character of a doubtful instrument we must read the intention of the maker by the light of the transaction itself, as shown by the provisions of the instrument and all the surrounding circumstances. If the intention be to convey in effect a present estate or interest upon the execution of the instrument ; by which is meant, not necessarily a present interest in possession, since any grantor might reserve to himself or create for another's benefit a life estate, by way of precedence ; the instrument is a deed and not a will. But to be a will the estate must accrue and take effect only after the maker's death ; and if such be the operation, the instrument is not a deed.^ No paper can be deemed testamentary and entitled to probate as a will, unless the benefit it confers is postponed to the death of the party who confers it.^ Nor can that be pronounced a testamentary document although suitably witnessed, which unequivocally declares on its face that it is not meant as a will.3 § 273. The Same Subject. — The form of the instrument in controversy will usually determine its true character, unless a contrary intention appears on its face.* But collateral evidence is freely admitted where the instrument itself is silent or equivocal, in order to show whether or not a testamentary disposition was actually intended.^ The facts of execution and delivery, the declarations of the maker at the time, and all the surrounding circumstances of the transaction, together with the instrument itself, may be considered in such a con- nection.® And notwithstanding the use of technical words 1 Habergham v. Vincent, 2 Ves. Jr. subsequently to the will, distinctly 231; Williams t/. Tolbert, 66 Ga. 127; stated: "This is not meant as a legal Morgan's Goods, L. R. i P. & D. 214; will, but as guide; " and the court re- Reed V. Hazleton, 37 Kan. 321. fused to consider it a codicil. Cf. § 275. 2 Hence a paper which directs a ben- * lb. ; Miller v. Holt, 68 Mo. 584; efit to be conferred inter vivos without Armstrong v. Armstrong, 4 Baxt. 357. express or implied reference to the * Jones v. Nicholay, 2 Robert. 292; maker's death, cannot be established 3 Sw. & Tr. 586; Cock v. Cooke, L. as a will, i Wms. Exrs. 107; Glynn R. i P. & D. 241; Robertson v. Smith, V. Oglander, 2 Hagg. 428; 3 Hagg. L. R. 2 P. & D. 43; Walk. 520; Gage 218; 4 Hagg. 359. V. Gage, 12 N. H. 371; Sharp v. Hall, ^ Ferguson-Davie v. Ferguson-Davie, 86 Ala. 1 10. 15 P. D. 109. Here the paper, made « lb. 292 CHAP. I.] WHAT CONSTITUTES A WILL. § 274 and expressions, which might lead to a different conclusion, the palper will be pronounced what, upon the whole, the true scope and bearing of its contents entitle it to be considered.^ On the presumption that all was done rightly, probate has been granted of a will executed in the form of a deed, even though the attesting witnesses had no precise recollection of the circumstances of the execution. ^ And a power of attorney may be wide enough in scope to have a testamentary character.^ § 274> Posthumous and Ambulatory or Revocable Character of a "Will. — The great criterion, then, of a testamentary dis- position is, that by intendment it takes effect only at the death of the maker, vesting no earlier interest in the bene- ficiary; And the chief and usual incident of such a disposi- tion is, that until the maker's death, it continues ambulatory or revocable at his discretion. A transaction in the nature of an agreement upon mutual consideration which is made irrevocable and binding upon the person who stipulates what shall be done in the event of his death, cannot in general be held to involve a will.* But there may be a will, given upon some consideration by way of an independent covenant, for the breach of which even third parties might rightfully sue.^ Where the consideration kept in view is service or the testa- tor's life support from the intended beneficiary, his own power to revoke the will (or, indeed, to make no will at all, or a different sort of one) is his constant security.® The modern equity doctrine of mutual or joint wills, however, or of a contract upon good consideration to execute some par- ticular will, introduces a new refinement, by way of eliminat- 1 I Jarm. Wills, 18; Thompson v. 567. Nor is an instrument by way of Johnson, 19 Ala. 59; Hamilton v. lease with provision as to applying rents Peace, 2 Desaus. 92; Armstrong v. in the event of the lessor's death; this, Armstrong, 4 Baxt. 357. too, is irrevocable. Robinson's Goods, 2 Colyer's Gobds, 14 P. D. 48. L. R. i P. & D. 384. A gave a writing ' Barker's Goods, P. 251 (1891); Doe to his bankers which he called "an as- V. Cross, 8 Q. B. 714. signihent." But it was in its purport a * Meck's -Appeal, 97 Penn. St. 313. will. Comer v. Comer, 120 111. 425. An antenuptial marriage settlement ^ Armstrong v. Armstrong, 4 Baxt. rendered irrevocable on the marriage 357. is not a testamentary paper. 8 Ir. Eq. ' » See Miller p. Holt, 68 Mo. 584. 293 § 276 LAW OF WILLS. [PART III. ing this revocable or ambulatory incident, otherwise universal ; which subject we shall discuss in place hereafter.^ The idea that the maker intended a will and not a transfer inter vivos, is strengthened by the circumstance that he kept the doubt- ful instrument under his own control, thus suspending de- livery until his death and making it easy to revoke the disposition.^ § 275. 'What a Testator executes as his VSTill, should so oper- ate, notwithstanding his Mistake of Law. — The instrument which a testator executes finally as his will, should so operate, if all legal formalities have been actually complied with, not- withstanding his mistaken belief that other formalities were requisite.^ As where one makes what is a will, in substance, but expresses therein an intention of making later a more formal one.* § 276. 'Writings, otherwise intended by the Maker, how far upheld as Testamentary by the Courts. — While informal and unattested writings were upheld in England as wills, and a man was hardly thought to deserve a respectable name after death unless he left some will behind him disposing of his property, instruments not really meant to be wills were allowed so to operate, if they could not operate in the charac- ter intended. Why ecclesiastical courts accorded this favor was, because they exercised a flexible discretion in the prem- ises ; and their argument was that the maker, having died without making any other disposition of his personalty, his ^ See Part V., post. Joint or Mutual witness clause necessary to complete it, ■Wills, etc. and handed it for suggestions to his 2 See Nichols v. Chandler, 55 Ga. lawyer, who made slight changes and 369. returned it. Holograph wills in that 8 This principle requires, as we pre- State require no witnesses to the tes- sume, that the testator executed the tator's signature; and the court ad- paper with a final testamentary purpose, mitted the will to probate, treating the and not as a mere preliminary or delib- changes made by the lawyer as no part erative writing. See Fisher's Goods, of it. The opinion states, however, that 20 L. T. 684. The rule of the text is the will was wholly written and signed supported by Toebbe v. 'Williams, 80 by the testator with the intent that it Ky. 661, where, however, the facts as should be his will, reported appear hardly satisfactory. A. * Beebe Re, 5 Dem. 43. executed a holograph will, supposing a 294 CHAP. I.] WHAT CONSTITUTES A WILL. § 2/7 purpose could only be effected by treating the paper as tes- tamentary. Hence, if the purpose disclosed was to make a , disposition of one's property after his death, the instrument was treated as a will, though actually meant to operate as a settlement, or a deed of gift, or a bond.^ Some American cases proceed upon the same view.^ " But no case," observes Mr. Williams, " has gone the length of deciding, that because an instrument cannot operate in the form given to it, it must operate as a will ; " * and that eminent writer's inclination is evidently to conform this theory to the safer principle we have already adduced, namely, that the true intent and scope of the instrument, whatever the form or the maker's appre- hension or misapprehension as to its legal effect, shall suffi- ciently conclude it a testament and give it the testamentary operation which legally belongs to it.* Under the prevalent policy of our day, which insists upon formal signature and attestation, and treats intestacy as no such serious misfor- tune, courts will hardly venture beyond the shadow of that principle. § 277- Xixtrinsic Evidence not Admissible to dispute the Plain Tenor of the Instrument ; Effect of Doubt, etc. — In the cases we have thus considered, where extrinsic and parol evi- dence was admitted to show whether an instrument was or was not testamentary in its true intent, a doubt was suggested on the face of the instrument. Where, in both form and sub- stance, the writing is plainly a will, and execution with all the prescribed formalities can be shown, its obvious intent and scope cannot be contradicted or controlled in operating by parol and extrinsic evidence.^ And "if on the other hand, an instrument expressed and executed as a deed be delivered inter vivos to the party who on its face appeared entitled to 1 Masterman v. Maberly, 2 Hagg. a deed. Edwards v. Smith, 35 Miss. 247. See Morgan's Goods, L. R. i P. 197. & D. 214. * Supra, § 270; 15 P. D. 109. 2 Kelleher i-. Kernan, 60 Md. 440. ^ Whyte v. Pollok, 7 App. Cas. 400; 8 I Wms. Exrs. 106. An instrument Sewell v. Slingluff, 57 Md. 537; Eng- intended to operate as a deed cannot lish, Goods of, 3 S. & T. 586. take effect as a will, though invalid as 29s § 278 LAW OF WILLS. [pART III. it, no agreement in conflict with its plain tenor can be proved after the maker's death, to show that its operation was testa- mentary or dependent on some condition subsequent.^ Where, however, something to suggest a doubt as to whether the instrument was intended to be testamentary or not appears on the face of it, extrinsic evidence as to the cir- cumstances, besides the fact of execution, is admissible, so as to enable the court to determine the true character of that instrument.2 This does not (observes a recent case) throw upon the propounder a burden of proof which he fails to sat- isfy if the evidence does not confirm the instrument as a will; but the natural consequence is, that the court will fall back upon the instrument itself, and apply sound principles of con- struction to arrive at its real character, just as it would in interpreting any other document.^ § 277 a. Doubtful Writing, if pronounced a Will, fails unless formally- executed. — It is obvious that such a writing of doubtful character as we have considered must fail of en- forcement altogether if pronounced a will, unless executed with all the statute formalities which a testament require.* § 278. Wills made in Jest or without the Animus Testandi, etc. — Wills, to be valid, require, of course, the genuine ani- mus testandi ; to the extent, at least, of intending a disposi- tion whose legal effect the court may safely pronounce testa- mentary. The mind should act freely and understandingly to this intent ; and therefore it may be shown in evidence to vitiate an alleged will, not only that it was the offspring of an unsound mind, of essential error, or of coercion, but that it was written in jest, or without any idea of making an oper- ative will.^ Such jests, however, are unsafe ones ; and parol 1 Black V. Shreeve, 2 Beasl. 458; tary character, McKennonn.McKennon, Davy, Goods of, i S. & T. 262. 46 Fed. 713. 2 Whyte V. PoUok, 7 App. Cas. 400. ' Nichols v. Nichols, 2 Phillim. 180; 8 lb. per Lord Selborne. Lister v. Smith, 3 Sw. & Tr. 282; Swett * Cover V. Stem, 67 Md. 449; Comer v. Boardman, i Mass. 258. And see V. Comer, 120 111. 421. And see as to § 216. articles of copartnership of a testamen- 296 CHAP. I.] WHAT CONSTITUTES A WILL. § 28 1 " evidence tending to prove that a paper expressed and exe- cuted with all solemn formalities as a will was not so in- tended, or was only to operate under certain reservations not disclosed on its face, is very little encouraged by authority.^ § 279- Regular Papers imply the Anitaus Testandi ; otherwise ■with Papers 'which are not on their Pace Testamentary. — A regular paper regularly executed speaks for itself, and the animus testandi is naturally inferred. But papers which are not clearly on their face of a testamentary character, even though signed and attested, require to have the animus tes- tandi shown to the satisfaction of the court.^ Any instru- ment manifestly executed as a will and testamentary in character is to be admitted to probate without considering its peculiar legal effect.^ § 280. Several Papers may be probated together as constitut- ing a "Will. — It is not essential that the last will of a testator be expressed in a single instrument. The instance of a will with several codicils is a familiar one in point. And there may be several papers of different natures and forms, consti- tuting a will when taken together ; * not, however, in these times, unless the local statute prescribing a formal signature and attestation be duly complied with.^ § 281. Instruments Incorporated in the Will and Documents Extraneous. — It is held, moreover, in various instances, that if a testator refers in his duly executed and attested will to 1 See Sewell v. Slingluff, 57 Md. 537, Wikoffs Appeal, 15 Penn. St. 281; i 547. Tuck. Sur. 205; I Bradf. Sur. 114. * Thorncroft v. Lashmar, 2 Sw. & Tr. ^ A former will absolutely and fully 479; Whyte V. PoUok, 7 App. Cas. revoked by a later one ought to consti- 400. tute no part of the probate; but such ' Taylor v. D'Egville, 3 Hagg. 206; reference in the later to the former will Mundy, Goods of, 2 S. &- T. 119. as makes it oaXy pro tanto a revocation, * I Wms. Exrs. 107; Morgan's Goods, entitles the two papers to probate as L. R. I P. & D. 323; Sandford v. containing together the last will. Cf. Vaughan, I Phillim. 39; Hitchings v. Sinclair's Goods, 3 Curt. 746; and Duff's Wood, 2 Moore P. C. 355; 4 S. & T. Goods, 4 Notes of Cas. 474; I Wms. 23; Masterman v. Maberly, 2 Hagg. Exrs. 97 ; Part IV., /w/. 235; Phelps 11. Robbins, 40 Conn. 250; 297 § 28 1 LAW OF WILLS. [PART IIL another paper which has already been written out, clearly and distinctly identifying and describing it, so that it may safely be incorporated in so ^olemn a disposition, that paper should be probated as part of the will itself. But a later or even a contemporaneous writing, having the character of a mere letter of instructions to one's executors, and not being executed and attested as the law requires, can have no testa- mentary operation, and should not be adrhitted to probate. And, in general, an extraneous unattested writing, to be in- corporated with the will itself, should be reasonably identified by reference as part of it and as existing when the will was executed.^ The modern English and American rule on this point is succinctly stated in a Massachusetts case. " If a will, exe- cuted and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof, as the paper re- ferred to therein, takes effect as part of the will and shoi^ld be admitted to probate as such." ^ In conformity with such ^ Habergham v. Vincent, 2 Ves. Jr. with and forming part of the will itself, 204; Singleton v. Tomlinson, 3 App. in the same manner as if repeated /oA- Cas. 404; Sibthorp, Goods of, L. R. I dem verbis in the will itself. 3 Curt. P. & D. 106; Bizzey v. Flight, 3 Ch. D. 468, 493. But to incorporate a docu- 269; Lucas V. Brooks, 18 Wall. 436; ment in the probate of a will, three Newton v. Seaman's Friend Society, things are necessary : (i) that the 130 Mass. 91; 15 Hun, 410; Zimmer- will should refer to the document as man v. Zimmerman, 23 Penn. St. 275; then in existence; (2) proof that the Baker's Appeal, 107 Penn. St. 381 ; document propounded was in fact : Pollock V. Greassell, 2 Gratt. 439; Ton- written before the will was made; and nele v. Hall, 4 Comst. 140; Beall v. (3) proof of the identity of such docu- Cunningham, 3 B. Mon. 390; I Wms. ment with that referred to in the will. Exrs. 97, and cases cited; Brown v. Kehol, Goods of, 13 L. R. Ir. 13. And Clark, 77 N. Y. 369; 3 Rich. Eq. 305; see Singleton v. Tomlinson, 3 App. 14 Mo. 587; Chambers J/. McDaniel, 6 Cas. 404. Ired. 226; 117 Penn. St. 238. Williams considers the state of the 2 Gray, C. J., in Newton v. Seaman's English law as very unsatisfactory on Friend Society, 130 Mass. 91. The in- this point, where the document referred strument is thus considered as identified to is noiper se testamentary, especially 298 CHAP. 1.] WHAT CONSTITUTES A WILL. § 28 1 a doctrine, a will which was void for want of proper attesta- tion, has been validated by a subsequent codicil properly attested, which sufficiently refers to and embraces it.^ As to a paper not actually in existence, but hereafter to be prepared and executed, no reference in the existing will can give it any valid testamentary effect, independently of its own proper execution as a will in conformity with the statute. Hence, the testator cannot reserve a power to dispose of property at a future time by what is tantamount to a will informally executed.^ Indeed, the written reference in the will to a paper ^s something to be afterwards prepared, suffi- ciently debars that paper from being legally incorporated with it ; for parol evidence of the time of preparation is held inadmissible to contradict such reference.^ And in some of our States, the courts are very reluctant to admit as wills any extraneous unattested paper whose purport is to dispose, and not merely to explain, describe, or arrange the details under the formal instrument.* A testator cannot be too scrupulous about having his will in final and complete shape before the execution takes place, and avoiding all amend- ments and additions afterwards without the full solemnities.^ in cases where the paper is in the hands lished between the will and the existing of another party, who cannot be forced paper. to produce it. l Wms. Exrs. 97, note; If a will i;efers to a paper as after- Sheldon z/. Sheldon, i Robert. 81; Astor, wards to be executed, a later codicil Goods of, I P. Div. 1 70. The probate making no reference back cannot suf- court in such cases exercises discretion fice to incorporate such paper. Matthias, according to the circumstances. Sib- Goods of, 3 S. & T. 100; i S. & T. 36. thorp, Goods of, L. R. I P. & D. 106. * Phelps v. Robbins, 40 Conn. 250; , 1 Murfield's Will, 74 Iowa, 479; Thompson v. Quimby, 2 Bradf. 449. § 448, posi. Cf. 83 Ky. 584. This last restriction is, however, opposed 2 Johnson v. Ball, 5 De G. & Sm. 85; to the general current of authority. Langdon.2;.Astor, 3 Duer, 477; s. c, Where a will, otherwise complete, 16 N. Y. 9;~TEayer v. Wellington, 9 refers to a schedule as annexed for the Allen, 283; Croker v. Lord Hertford, disposition of certain assets, which is 4 Moore P. C. 339; 3 Curt. 468; Gra- not annexed, the will is good pro tanto. billz/. Barr, 5 Penn. St. 441. . Thompson v. Quimby, 2 Bradf. 449. » Sunderland Re, L. R. I P. & D. And see § 283. 198. The reference must be such that, ^ In a recent New York case the will with the assistance of parol evidence had been duly executed aS the law re- when necessary and properly admissible, quired, after which the testator told the the connection may be clearly estab- draftsman about some other articles to 299 § 282 LAW OF WILLS. [pART III. § 282. The Same Subject : Parol Evidence, how far Admis- sible ; Burden of Proof. — Parol evidence is admissible, in case of doubt, to identify the reference made in a duly ex- ecuted will as to other attested or unattested papers already existing, so as to incorporate all together in the probate. To use the language of Lord Kingsdown in an English privy council case on this subject : "The result pf the authorities, both before and since the late act (i Vict. c. 26) appears to be, that where there is a reference in a duly executed testa- mentary instrument to another testamentary instrument, by such terms as to make it capable of identification, it is neces- sarily a subject for parol evidence ; and that when the parol evidence sufficiently proves that, in the existing circum- stances, there is no doubt as to the instrument, it is no ob- jection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified." ^ But, while parol evidence may thus iden- tify, it should not be admitted to contradict the reference thus made in the former will ; ^ nor to incorporate where no reference is made at all.^ In general, the burden of establishing the existence and identity of an extraneous paper as part of the will rests upon the party who seeks to get such paper admitted.* be bequeathed. The draftsman wrote ^ Sunderland Re, L. R. i P. & D. the directions on a slip of paper, and 198. pasted it upon the will. There was no Reference may be made to other further execution or publication. The persons' wills or other instruments in so court held that the will should be ad- general a manner, as by way of explain- mitted to probate with these written ing the testator's reasons for his dispo- directions excluded. 6 Dem. 262. A sition, that such extraneous papers testator sometimes shows a similar inad- could not fairly be pronounced any part vertence in altering clauses in his exe- of the will in controversy. See Myrick, cuted will with a pen, or appending Prob. 205. An annulled will thus re- later written directions which ought to ferred to need not be embodied in the have been expressed by a properly probate. Ouchterlong, Goods of, 3 S. executed codicil. ST. 175. 1 Allen V. Maddock, 11 Moore, P. C. » Watkins, Goods of, L. R. i P. D. 427, 461; I Wms. Exrs. 100, citing 19; L. R. i P. D. 198. various English decisions made in ac- * Singleton v. Tomlinson, 3 App. Cas. cordance; I Sw. & Tr. 250, 508; 2.Sw. 404. & Tr. 478; 3 Sw. & Tr. 6. And see Daniels, Goods of, 8 P. D. 14. 300 CHAP. I.] WHAT CONSTITUTES A WILL. § 284 § 283. Reference of 'Will to a Lost or Inaccessible 'Will or 'Writing. — Where a will is lost or missing, at the testator's death, it is presumed to have been revoked by him during life ; but this presumption may be overcome by proof to the contrary. 1 So, too, where one's will refers to a memorandum which cannot be found upon his decease, the will may take effect without it ; either on the presumption that the testator destroyed it with the intention of revoking^ or because an apparent testamentary disposition is not to be disappointed because other dispositions are unknown by reason of a lost paper.^ But the presumption of intended revocation and destruction by the testator being overcome, secondary proof of contents may, we apprehend, be supplied.^ Where inacces- sible papers are referred to, the court deals with the difficulty as it may, while sustaining the will.* § 284. "Will may be written on Several Sheets incorporated together. — A will may, of course, be written on several sheets of paper incorporated together in sense as one instrument.^ And, unless the local statute provides differ- ently, the will is well signed and attested on the last sheet alone, provided the execution was bona fide and meant to cover the whole.® The presumption is that papers bound or fastened together, coherent in sense, and constituting the will as found after the testator's death, were so bound or fastened and constituted the will when it was executed and attested.'^ 1 Schoul. Exrs. & Admrs. § 84. they are connected by their internal 2 Dickinson v. Stidolph, 1 1 C. B. N. S. sense or by a coherence and adaptation 341; Wood V. Sawyer, Phill. N. C. 251. of parts. Wikoffs Appeal, 15 Penn. St. 3 See as to probate of a codicil with- 281; 47 Hun (N. Y.) 127. out the missing will, where the codicil « See 3 Burr. 1773; Marsh v. Marsh, stood independently of it, Greig Re, i Sw. & Tr. 528; Dea. & Sw. 7; Jones L. R. I P. & D. 72; Schoul. Exrs. & v. Habersham, 63 Ga. 146; chapters Admrs. § 84. post as to signature and attestation. As to comparing papers together, in '' Rees v. Rees, L. R. 3 P. & D. 84. such cases, to ascertain their true inter- Here a will had been engrossed on fif- pretation, see Jordan v. Jordan, 65 Ala. teen brief sheets of paper consecutively -Q,_ numbered, with others added. On the * Schoul. Exrs. & Admrs. § 84. testator's death, it was found that the s The different parts of a will need original fourth sheet had been removed, not be physically connected, provided and placed loose in his desk, and that the 301 § 286 LAW OF WILLS. [PART IIL § 285. "WUls Conditional or Contingent. — Those familiar with testamentary causes are well aware that provisions under a will are liable to turn out in one way or another, contrary often .to expectation, according to conditions, express or implied, with which the gift is found coupled; and that predecease and various other contingencies may cause a testamentary disposition to operate quite differently from what the testator himself had more particularly in view. Variation, under given circumstances, may be the result of law in one case and of the testator's own prevision in another. Wills, therefore, as to the details of testamentary disposition, may operate in effect subject to conditions or contingencies in every variety. But now arises the question as to subject- ing the will itself, the disposition as a whole, to some condition or contingency, which shall control or prevent its operation altogether, so that the testator may have made the will under- standing that he might die testate or intestate. Wills may be conditional, that is to say, made dependent upon the happening of some specified contingency for testa- mentary operation. If the condition is of partial application simply, the will should be admitted to probate, and the effect of the condition upon a particular devise or legacy treated as matter of construction afterwards. But if the condition is one that strikes into the essence of the whole will, affecting its status for probate and a valid operation, the main point to determine is, whether so sweeping an effect was really intended. For one may state a contingency that he has in mind as the inducement for making his will, by way of narrative, so to speak, or he may, on the contrary, state it as the condition on which the will is to become operative. The question is, which he intended ; and the inclination, in case of doubt, should, we hold, be to the former and less injurious and impolitic conclusion. § 286. The Same Subject. — There seems no reason upon principle why an instrument cannot be made which shall take original seventeenth sheet had been sub- It was held that these facts did not over- stituted for it. The several sheets of the come the presumption that the will had will were found tied together with tape, been executed as thus bound together. 302 CHAP. I.J WHAT CONSTITUTES A WILL. § 287 effect as a will, on the happening of a particular contingency named in it ; not the usual simple contingency of the testa- tor's death, but his death after a certain manner, or at or before a particular date, or during some special season of risk, or in case he shall or shall not leave such an estate or such persons surviving him. But how rarely is it to be sup- posed that a testator means that the will which he leaves at his death uncancelled was only meant to operate if he died at some particular time or by some stated mode. And as for conditions which have the amount of estate or the sur- vivorship of certain other persons in view, how natural is it that these should have been embraced within the scope of disposition under a will which of itself disposes. Admitting, nevertheless, that a will may be drawn up and executed to operate only as such upon a stated contingency, "there are two points," says Hoar, J., "to be settled before a will can be rejected from probate on the ground that it is a conditional will, and that the condition has failed : (i) whether the intention of the testator is to make the validity of the will dependent on the condition, or merely to state the cir- cumstances which lead him to make a testamentary provision ; (2) if the language clearly imports a condition, whether it applies to and affects the whole will, or only some parts of it." ^ For a contingent part of a will, we should observe, is not per se a contingent will. § 287. The Same Subject : English Cases. — Of English cases decided before the statute i Vict. c. 26 went into effect, a brief citation is sufficient. But we may observe that Lord Hardwicke set the early example of treating a will as void through the failure of a contingency upon which it ap- peared to depend; 2 while the later decisions showed a more 1 Hoar, J., in Damon v. Damon, 8 Frauds properly applied, rendering due Allen, 192. See also Lindsay, Ex parte, formalities of execution necessary. The 2 Bradf. Sur. 204; I Redf. Wills, 177. report of this case is fragmentary in 2 Parsons v. Lanoe, i Ves. Sen. 190; each report, and it is best to take the s. c, Ambl. 557. This case was decided, two together, that in Ambler being we should observe, as involving a will of preferable. See Hoar, J., in 8 Allen, real estate, to which the Statute of 195. § 287 LAW OF WILLS. [PART III. cautious inclination.^ Under the new Wills Act, however, ex- trinsic evidence as to the testator's intention and his adher- ence to the will despite the condition is less easily applied than formerly ; the court confining its attention rather to the language used in a written instrument executed with due so- lemnities. Hence, a will expressed to take effect if the tes- tator should die on a stated voyage, or before his return from a particular journey, has been held inoperative ; the testator having returned in safety, and died long after under circum- stances quite different, so that the contingency stated in the will never happened.^ And here, as in the case before Lord Hardwicke, the court ruled out evidence that notwithstanding his return, the testator had actually recognized the will as valid until he died ; because this would be to set up the will by parol, while under the statute a strict republication became indispensable, as in other wills once ceasing to operate.^ But where a will, written as though conditional upon a long journey, is re-executed and duly witnessed after the testator's safe return, the condition ceases, and the will may fully oper- ate by remaining uncancelled ; and such, too, is the practical consequence when the instrument was properly executed for the first time when the journey was over.* In several late cases, moreover, the court liberally inclines to admit such wills to probate, where it may ; either on the ground that the words claimed to import a condition merely explained the inducement to the will, or in order that the force and effect of a doubtful condition may be determined by construction, afterwards. As where a will made in Africa commenced : " In the event of my death whilst serving in this horrid cli- mate, or any accident happening to me." ^ Or where the 1 Barton v. CoUingwood, 4 Hagg. 2 -^Yjun^ Goods of, 2 Sw. &Tr. 147; 176; Bateman v. Pennington, 3 Moore, Rotierts v. Roberts, 2 Sw. & Tr. 337. P. C. 223; Strauss V. Schmidt, 3 Phil- » lb.; Parsons v. Lanoe, I Ves. Sen. lim. 209; Forbes v. Gordon, 3 Phillim. 190; s. c, Ambl. 557. 625; 2 Phillim. 294; I Wms. Exrs. * Cawthron, Goods of, 3 Sw. & Tr. 189. These decisions of the ecclesiasti- 417. On the other hand, the due exe- cal courts relate to wills of personalty, cution of a new and inconsistent will which were formerly good without a would supersede any such contingent solemn execution. will. See Ward's Goods, 4 Hagg. 179. 5 Thome, Goods of, 4 S. &T. 36. CHAP. I.] WHAT CONSTITUTES A WILL. § 287 testator directed that his will was to take effect only in the event of his son dying under twenty-one years of age, and his daughter dying under that age and unmarried; and then went on to leave various legacies and appointed an executor.^ Or where a will began : " In case of any fatal accident hap- pening to me, being about to travel by railway, I hereby leave," etc.^ * Cooper, Goods of, Dea. & Sw. 9. If the event is still in suspense (as seems to have been the case here, though the report is not clear), the will should be admitted to probate. 1 Jarm. Wills, 17. 2 Dobson, Goods of, L. R. i P. & D. 88. Here the operation of the will is not expressly limited to a certain time. Even the latest English cases run very close in point of construction, as may be seen by comparing Porter, Goods of, L. R. 2 P. & D. 22, with the cases cited therein. Here a paper made use of this language : " Being obliged to leave England to join my regiment in China, I leave this paper containing my wishes. Should anything unfortunately happen to me whilst abroad, I wish everything that I may be in possession of at that time, or any- thing appertaining to me hereafter, to be divided," etc. The testator returned from China, and afterwards died. Said Lord Penzance : " The court is bound to hold that this will is conditional. Looking at the cases already decided, and the principles therein laid down as to contingent wills; I find a distinction drawn. It is the common feature of wills in respect of which this sort of question arises, that the testator therein refers to a possible impending calamity in connection with his will; and the question arises, whether he intends to limit the operation of the will to the time during which such calamity is im- minent. If the language used by him can by any reasonable interpretation be construed to mean that he refers to the calamity and the period of time during which it may happen, as the reason for making a will, then the will is not con- ditional; but if he refers to the calamity or the possible occurrence of some event as a reason for a certain disposi- tion of his property, and mixes up the disposition of the property with the event so that one is dependent on the other, then the court must hold the will to be conditional." The former English cases are here reviewed and distin- guished. And see Robinson, Goods of, L. R. 2 P. & D. 171; Martin, Goods of, L. R. I P. & D. 380. Nevertheless, to take such wills as ex- pressed on their face, the distinction appears wire-drawn. For in a still later decision the will was decided not to be contingent upon death, though expressed as follows : " On leaving this station for T. and M., in case of my death on the way, know all men this is a memorandum of my last will and tes- tament." Mayd, Goods of, 6 P. D. 17. Says Sir James Hannen : " The mean- ing of general phrases of this kind is, 'knowing the uncertainty of human life, and being about to enter on some- thing particularly dangerous, I make this my will ' ; and the court ought not to scrutinize such expressions with too great nicety." lb. It is generally found that wills of this character employ language careless and inartificial, and that they are not pre- pared under competent professional guidance. All the more, then, should courts incline against giving to the ex- pressed peril the full force of a condi- tion, in case of legal doubt. By discour- aging contingent wills in construction, they are most likely to disappear; and if so, all the better for our jurispru- dence. 30s § 288 LAW OF WILLS. [PART IIL § 288. The Same Subject: American Cases. — In this country, it is generally conceded that a statute^ execution by means of signature and attestation leaves the validity of the instrument to be so tested by proof of due execution and its contents, that parol evidence of subsequent adherence to the will cannot aid it against a clearly expressed contingency upon which its effect is declared dependent. At the same time, where the words do not clearly express that the entire instrument shall fail or take effect upon a particular event, a probate is favored, either upon the theory that there was no such fundamental contingency, or so as to leave a court of construction to determine how far the provisions of the will, the devises and bequests, were affected by it.^ Where a will is so expressed as to depend upon a contingency which does not happen, a later re-execution or republication is needful, as under the policy of English legislation, in order to give the will new validity.^ There are several American cases in which these principles have been liberally applied, so as to admit to probate wills which, if rigidly interpreted, might be thought conditional. Thus, in Massachusetts, where a testator commenced his will as follows: "I, A. B., being about to go to Cuba, and know- ing the danger of voyages, do make this as my last will and testament, in manner and form following : First, if by casu- alty or otherwise I should lose my life during this voyage, I 1 French v. French, 14 W.Va. 458, and there be room for reasonable doubt as cases cited; Damon w. Damon, 8 Allen, to the contingent character of the in- 192; Lindsay, Ex parte, 2 Bradf. Sur. strument, if there are not clear and 204. This exclusion of parol evidence unquestionable terms of contingency, of subsequent recognition or disaffirm- the probate judge is justified in a sen- ance may sometimes be favorable to tence of probate on the formal proof, the will. so as to leave the determination of its In Lindsay, Ex parte, supra, the conditional nature for subsequent con- court observes as follows : " If the will struction and interpretation." This is a be admitted to probate, it will still re- very just and sensible view to take of main " matter of construction whether the subject. the bequests are made dependent upon ^ See Dougherty v. Dougherty, 4 a condition or contingency. If it be Met. (Ky.) 25, where this principle is denied probate, that question cannot be more doubtfully expressed than it need brought before a court of construction, have been; also Part IV. c. 3. If, therefore, in a case of this kind 306 CHAP. I.] WHAT CONSTITUTES A WILL. § 289 give and bequeath to my wife," etc.^ Again, in New York, whei-e the will began : " According to my present intention, should anything happen to me before I reach my friends in St. Louis, I wish to make a correct disposal of the three hun- dred dollars now in the hands of H.," etc.'^ And once more by a very free interpretation, in a late West Virginia case, the following instrument : " Let all men know hereby, if I get drowned this morning, March 7, 1872, that I bequeath all my property, personal and real, to my beloved wife F." * § 289. The Same Subject. — On the other hand, several American cases have treated a will of dubious phrase as con- tingent. Thus, in Kentucky, where a will devised real estate after this form : " As I intend starting in a few days to the State of Missouri, and should anything happen that I should not return alive, my wish is," etc.* And in Missouri, where, very curiously, a will couched in nearly the same language, began : " I start this day for Kentucky," etc.® In each in- stance, the testator was fortunate enough to go to and fro between these two States alive, and his will failed in conse- quence. More recently, in Pennsylvania, a testamentary paper, badly worded and spelled, and awkwardly expressed, was refused probate, where the direction was, " If I should not get back, do as I say," and the testator, as the brief showed, became ill on his journey, was brought back, in fact, and died at home several days after.^ 1 Damon v. Damon, .8 Allen, 192. also Kelleher v. Kernan, 60 Md. 440; This same will gave other independent Barton's Estate, 52 Cal. 538. bequests, and spoke of the instrument Such will being absolute and not as the testator's last will and testament, contingent, and the law having made a The effect of the contingent expression, change in heirship between the date of in this carelessly drawn will, upon the the will and that of the testator's death, first clause as contrasted with the later no presumption against the will arises ones, the court did not consider; that in consequence. French w. French, 14 being a matter of later construction W. Va. 458. not interfering with a probate. « Dougherty v. Dougherty, 4. Met. 2 Lindsay, Ex parte, 2 Bradf. Sur. (Ky.) 25. See also Todd's Will, 2 W. 204. & S. 145; Broadus v. Rosson, 3 Leigh, " French v. French, 14 W. Va. 458; 12; Wagner v. M'Donald, 2 Har. & J. Green, Pres., dissenting. In the opin- 346; French v. French, 14 W. Va. 458, ions here pronounced, the later prece- and cases cited; Myrick, 157. dents, English and American, are quite ' Robnett v. Ashlock, 49 Mo. 171. exhaustively cited and compared. See ' Morrow's Appeal, u 6 Penn.St.440. 307 § 29° LAW OF WILLS. [PART II L § 290. The Same Subject: Bearing of Extrinsic Evidence in Such Cases. — This doctrine of conditional or contingent wills is, on the whole, so rarely, invoked, that the bearing of extrinsic evidence in such cases has not been fully unfolded in the decisions. Where a statute mode of execution or re- execution is strictly prescribed, the intention of the testator to make and finally leave at his death a conditional will, must appear very clearly on the face of the will Careless and in- artificial expressions, however, are to be treated with ample allowance, technical informalities disregarded, traces of the testator's intention sought out in every part of the instru- ment, and the whole carefully weighed together. But as to evidence outside the instrument, and particularly mere declarations and other oral proof, while, doubtless such testimony is inadmissible to control the construction of the will, or contradict its clear expression of intent, it may still be asked whether the court is not at liberty to go outside in case of inevitable doubt, to help resolve an ambiguity. Authority is not explicit on this point ; nor perhaps can so extreme a case be found in our modern practice ; but cer- tainly such oral proof is not favored, and the court prefers to put its own construction upon the language contained in the will. Yet it is held, and with good reason, that the surround- ing circumstances of the execution may be shown to aid in ascertaining the true interpretation of the will. Such proof may aid in determining, for instance, whether the testator merely had a particular peril or exposure in view as inducing him to make his will, or, what is more improbable, meant that its effect should depend wholly upon death from that peril or exposure.! And even conceding, as we must, that our Wills 1 French v. French, 14 W. Va. 460. loosely admitted affected their condu- This subject of admitting extrinsic evi- sion; and the report of the case con- dence to aid in resolving the doubtful firms, on the whole, this impression, expressions of a will is here discussed And see Kelleher v. Kernan, 60 Md. at much length. From the dissenting 440, where parol proof of the testator's opinion one would infer that consider- intention to provide for his daughter in able parol evidence, not legally admissi- anticipation of the journey was held ad- ble, was introduced. But 'the rest of missible as showing his condition of the court, while sustaining the will, con- mind when the will was made, tend that no testimony inadmissible or 308 CHAP. I.] WHAT CONSTITUTES A WILL. § 293 Acts exclude all parol evidence of recognition, adherence to the will, or ratification after the peril was past (since a repub- lication is required), we see no reafeon why the very circum- stance that the will in question has never been cancelled, but is produced from proper custody on the testator's death and presented for probate, may not be adduced in favor of its in- tended validity ; just as that circumstance carries weight,- where insanity with lucid intervals of coercion is set up against a will. For, after all, conditional wills are of so peculiar a description, and operate usually so disastrously, not to say senselessly, that any doubt should be resolved in favor of absolute character and a probate. § 291. 'Willa may take Effect in the Alternative. — Wills may be expressed so as to take effect in the alternative with reference to a stated contingency. As if a testator should execute one will, and afterwards a second will ; and then by a third will or codicil declare that the first will shall be his last will if he dies before a given date, otherwise the second will shall be his last will.^ § 292. Contingency or Condition not to be supplied by Parol Proof. — The contingent or conditional wills we have described involve the construction of an instrument whose conditional import appears upon its face. A will duly executed animo testandi and in form absolute is not to be shown contingent or conditional and inoperative by extrinsic proof.^ § 293. Operation of Will left to the Discretion of Another. • — A singular kind of testamentary condition has been sustained in a late English case. A testator wrote a codicil to his will, which concluded as follows : " I give my wife the option of adding this codicil to my will or not, as she may think proper 1 Hamilton's Estate, 74 Penn. St. 69. tended it to be used and prdbated as The point of contingency should be her will only in the event of her dying definitely stated in such a case, and the without issue. The will expressed no alternate instruments well identified. qualification of the kind; and it was 2 Sewell V. Slingluff, 57 Md. 537. In properly held that parol evidence was this novel case a will was contested on inadmissible to Show such an intent, the ground that the testatrix had in- § 294 LAW OF WILLS. [PART IIL or necessary." The court decided that a condition or option like this was not illegal nor invalid ; at the same time con- ceding that one can neither confide to another the right to make a will for him, nor authorise any person to revoke his will after his death.^ And in the present instance, the valid- ity of the codicil being treated as conditional on the assent .of the wife, and the wife dissenting, its probate was refused.^ § 294. Papers which cannot be probated as 'Wills ; Wills merely appointing a Guardian ; appointing to a Situation ; exclud- ing from Inheritance, etc. — There are documents designed for posthumous effect, which cannot be probated as wills for want of the character essential to such dispositions in order to give the court jurisdiction. Thus a paper executed as a last will, which does no more than name a guardian for one's children, and neither disposes of property nor nominates an executor, is excluded from probate.^ But in various American States, where legislation confers upon the probate court original jurisdiction in the appointment of guardians as well as executors, and makes special mention of testamentary guardians, besides, a different rule may prevail* Nor is the mere written appointment to a situation after one's death a testamentary paper, though duly executed and witnessed.^ 1 That a testator cannot delegate to may legally be hung up thus at the another the power to revoke his will caprice of a person who chooses to after death, see Revocation, post; i leave it for years or forever uncertain Robert. 661; North Re, 6 Jur. 564. whether he dies testate or intestate, it ^ Smith, Goods ■ of, L. R. I P. & D. is time for legislation to prevent intol- 717. What would have been the effect erable mischief, and at all events pro- of such a codicil had the wife died tect creditors of the estate. The least before her husband, or too soon to de- a court can do in such a case is to clare her option at all, the court did promptly decree probate of the will not consider. But the learned judge after the testator's death, without wait- took the ground that there is nothing ing for any later contingency to be in the law or common sense to prevent determined. a testator from saying that the ques- * Morton, Goods of, 3 Sw. & Tr. 422. tion whether his will shall fundamen- * Concerning testamentary guardian- tally operate, that is, become a will at ship, etc., see Schoul. Dom. Rel. 3d all or not, shall depend upon something Ed. §§ 287, 290. to happen after his death. Such a ^ Thorncroft v. Lashmar, 2 Sw. & Tr. proposition, we submit, is open to grave 479. dispute ; and if titles by succession 310 CHAP. I.] WHAT CONSTITUTED A WILL. § 296 In short, a will to operate as such must make or attempt a total or partial disposition of property, to take effect at the testator's death, or at least, must name an executor ; and it is not enough that the instrument purports to be a will and is executed with all the testamentary formalities, when it ac- complishes nothing of a testamentary character.^ § 295. The Same Subject : 'Wills which merely dispose of Real Estate. — The old English rule founded ecclesiastical jurisdiction essentially upon such testamentary acts as affected personal property. Hence it has been ruled in Eng- land in times past that a will which disposes of real estate alone cannot upon any pretext be admitted to probate.^ But the later tendency of legislation in that country is to a more uniform system of probate, whether the disposition affects lands or any other species of property ; while in the United States, the policy is to require a probate of all wills, whether relating to realty or personalty, or both together.^ § 296. The Same Subject: Writings which merely revoke. — So, too, English courts have hesitated as to admitting papers to probate as testamentary which do no more than manifest the intention of revoking a regular will or codicil. Lord Penzance in two recent cases owned the delicacy of a distinc- tion ; but concluded, that while one duly signed and attested memorandum which did something more than revoke a will might be deemed a will or codicil, another, similarly prepared, and executed, which, at the foot of a will, said, "This will was 1 QC §§ 297, 298. In a curious Vir- should give directions for a sale of part ginian case a man made a will, so called, of the estate and the payment of lega- which purported simply to exclude a cies out of the proceeds, probate must certain son, for reasons stated, from be refused. Bootle, Goods of, L. R. 3 participating in his estate at his death, P. & D. 177. It cannot be denied that and yet made no disposition of prop- a will which disposes of land alone erty. It was held that this was no will; is testamentary, whether one court or that the deceased died intestate, and another takes jurisdiction of it. that consequently this son was entitled ' Schoul. Exrs. & Admrs. § 59; I to share in the distribution. Coffman Wms. Exrs. 341, 388; Act. 20 and 21 V. Coffman, 85 Va. 459. Vict. i,. 77. § 64; Shumway v. Hol- "Drummond's Goods, 2 Sw. & Tr. brook, i Pick. 114; Mass. Pub. Stats. II; Barden's Goods, L. R. I P. & c. 127, § 7; Wilkinson v. Leland, 2 " D. 325. Even though the instrument Pet. 6SS- 311 § 297 LAW OF WILLS. [pART III. cancelled this day," could not be admitted to probate.^ Yet a separate instrument, duly signed and attested, which de- clares one's intent of revoking a former will, or all former ones, and that his estate shall be settled according to law, is undoubtedly a will and should be admitted to probate as such.^ § 297. Wills Good which simply nominate an Ezecutor ; Wills without an Executor. — But a will which simply nominates an executor, without giving him a legacy or making any direct disposition of the property is a good one, and entitled as such to probate.^ And if the nomination constitutes it a will, the fact that such executor afterwards renounces the appoint- ment cannot change the character of the instrument nor deprive it of probate.* One who is simply made an executor is clothed by implication with the usual functions pertaining to the office ; and as for the property, silence imports a descent and distribution such as the statute prescribes for intestate estates ; though, doubtless, it is expedient that wills of this sort should expressly direct a final settlement after that course. Wills, on the other hand, are pronounced good in modern practice, which make provision for settling the estate but name no executor at all.^ 1 Fraser, Goods of, L. R. 2 P. & D. is followed by a clause, appointing an 40. Cf. Hicks, Goods of, L. R. i P. & executor, which is" not signed or wit- D. 683, where the memorandum which nessed in compliance with the statute; satisfied said further " and as yet I have the will is valid, except for the appoint- made no other [will]." These cases ing clause. Myrick Prob. (Cal.) 76. construe the 20th section of the Wills ^ Wms. Exrs. 7 ; Schoul. Exrs. & Act. See post as to Revocation of Admrs. § 3. And see Brady v. McCros- Wills. son, 5 Redf. 431, where the rule takes "Bayley v. Bailey, 5 Gush. 245; effect, when the appointment of the Hicks, Goods of, supra. executor was in an appended clause to ' Godolph. pt. 2, c. 5, § I ; I Wms. the will, which the testator signed, but Exrs. 227; Lancaster, Goods of, i Sw. not the witnesses. Myrick Prob. 76. & Tr. 464; Miskelly Re, 4 Ir. Eq. 12; The effect of naming no executor, or Schoul. Exrs. & Admrs. § 31 ; Miller v. of renunciation by the executor named. Miller, 32 La. An. 437; Barber v. Bar- is to admit the will to probate; the ber, 17 Hun. 72. court constituting an administrator with 4 Jordan, Goods of, L. R. i P. & D, the will annexed for the emergency. 555- Schoul. Exrs. & Admrs. § 122. Where a will, executed in due form, 312 CHAP. I.] WHAT CONSTITUTES A WILL. § 299 § 298. Wills Good which make only a Partial Disposition, or distribute as in Case of Intestacy. — Wills, furthermore, are good which make only a partial" disposition of one's property ; for, whether it be through legal operation of the will or because the testator so intended, one may die testate as to a portion of his estate and intestate as to the residue. ^ And one may by his will expressly provide either that the whole or some specific portion of his property shall descend and be distrib- uted according to the local statute^ as though he died intestate.2 § 299. Wills executed under a Power. — Attention was formerly bestowed in England upon wills executed under a power of appointment ; the general rule being, that the instru- ment creating the power ought to be followed as to the mode of exercising it.^ But the erroneous exercise of a power is held to operate as a will if the person had a right to dispose of the fund.* Such questions seldom occur in Ameri- can practice ; ^ and English legislation now sanctions the broad principle favored by our policy, that appointments by will in exercise of any power, require for their validity the same formalities of execution and attestation as other wills, and nothing beyond, notwithstanding any terms which may have been employed in creating the power.^ 1 Schoul. Exrs. & Admrs. § 250. * Southall v. Jones, i Sw. & Tr. 298. '^ Lucas V. Parsons, 24 Ga. 640. * See Porter v. Turner, 3 S. & R. 108. » Temple v. Walker, 3 Phillim. 394. » Stat, i Vict. c. 26, § 10; Crooken- A wife might by virtue of a power exe- den v. Fuller, I Sw. & Tr. 70; Hub- cute a will without her husband's con- bard z/. Lee, L. R. i Ex. 255; 13 W. sent by way of exception to the rule. R. 394; Blackburn Re, 43 Ch. D. 75. See supra, § 64; I Wms. Exrs. 384. § 300 LAW OF WILLS. [fART III. CHAPTER II. SIGNATURE BY THE TESTATOR. § 300. Statute Requirements as to Signing ; English Rule. — In England a will of personal property was valid without any signature by the testator, until the statute of i Vict. c. 26' came into operation ; that is to say, if made before Jan. i, 1838 ; and whether the will was in the handwriting of the testator or of some other person duly authorized by him under such circumstances, the rule was the same.^ But under this later statute the prescribed formalities apply equally to wills of real and personal property.^ On the other hand, the Statute of Frauds ^ had for more than a century and a half required that all devises and bequests of lands or tenements should be in writing, signed by the testator, or by some other person in his pres- ence, and by his express direction, and should be attested or subscribed in his presence by three or four credible wit- nesses.* The modern statute, i Vict. c. 26, making the word " will " comprehend all testamentary dispositions, and using the convenient terms "personal estate" and "real estate," to denote the two grand divisions of property, declares that no will shall be valid unless in writing, and signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation 1 Salmon v. Hays, 4 Hagg. 382; i « The word " hereditaments " is Wms. Exrs. 68. omitted from this clause of the famous 2 Supra, § 253. statute, but found in other parts of it. 8 29 Car. II. c. 3, § 19. See Lord Alvanley, in 2 Yes. jr. 661. CHAP. 11.] SIGNATURE BY THE TESTATOR. § 302 shall be necessary.^ It is under this latter statute that the modern English cases which deserve our chief study are ranged. § 301. Statute Requirements as to Signing: American Rule — The policy of the older Statute of Frauds in this respect has strongly impressed the testamentary jurisprudence of our several States. But, admitting local variations as to the number of attesting witnesses required, and, of course, local exceptions of principle, our American legislatures insist, at this day, upon a formal signature and attestation to each will, codicil, or testament,^ regardless of the character of the prop- erty embraced under the disposition, and to much the same effect as the English Statute of 1837, but, on the whole, with less nicety of expression. The Massachusetts code, for in- stance, prescribes for each testator a will in writing, " signed by him or by some person in his presence and by his express direction, and attested and subscribed in his presence by three or more, competent witnesses."^ The New York statute pro- no;unces more explicitly for subscription by the testator " at the end of the will " ; adding further provisions for making or acknowledging the signature in presence of the witnesses.* Other States employ still different language in their respec- tive codes. Of the peculiar virtue ascribed to the holograph wills,^ even to this day, in various States, some of whose legis- latures insist, nevertheless, that the writing shall be signed by the testator himself, we have already spoken.^ In short, as local codes differ, our present investigation must be held strictly subject to local variations of statute requirement, wherever the essential formalities of execution come up for discussion. § 302. 'Whether Execution signifies more than Signing, or includes Attestation. — In general phrase one may speak of the proper execution of a will as involving the full legal 1 Stat. I Vict. c. 26 (1837). ' N. Y. Re*. Stats. 1875, Vol. 3, c. 6, 2 The few instances where nuncupa- p. 63. tive wills are still permitted follow a ^ Or those in a testator's own hand- different rule. writing. « Mass. Pub. Stats. (1882) c. 127, §1. « Supra, § 255; 43 La. Ann. 310. § 303 LAW OF WILLS. [PART III. formalities of a signature and attestation ; and for con- venience we have usually so employed that word in these pages.^ But some authorities appear to apply the words " execution " and " attestation " separately, as though the former term related only to the testator's own act ; and use " execution and attestation " to denote the whole formality.^ § 303. 'Will may be signed by the Testator, or his Mark made, etc. — What, we now inquire, amounts to a " signing " by the testator so as to satisfy the statute requirement on the subject of wills? To write out one's own name in full is doubtless the safest course, as well as the most natural ; for such compliance best indicates a rational mind, free will, and physical power, at the date of execution. But, undoubtedly, the making of his mark by the testator will satisfy the statute ; and that, too, as various cases rule, notwithstanding he was able to write at the time.^ Thus has it been held in cases arising under the Statute of Frauds ; * and those decisions apply equally to the Statute of Victoria, which is expressed in language almost identical ; as also > to most American codes. Other modes of signature are per- mitted besides. Accordingly, the will has been upheld where the testator made a mark, with his hand guided or not guided by another ; ^ or where the testator wrote only his initials ; ^ or where his full signature was effected by the aid of another person who guided his hand ; ' or where he stamped 1 Statute I Vict. c. 26, § 9, sanctions * See i Wms. Exrs. 76; Baker v. this use of the word. It declares that Dening, 8 Ad. & El. 94. no will shall be valid unless in writing ' Wilson v. Beddard, 12 Sim. 28; " and executed in manner hereinafter Baker v. Dening, supra ; Jackson v. mentioned"; and then proceeds to de- Van Dusen, 5 John. 144; Nickerson v, scribe the details of signing, acknowl- Buck, 12 Cush. 332; Upchurch v. Up- edging, and attesting the will. church, 16 B. Mon. 102. 2 See I Jarm. Wills, title to c. 6, etc. ' Savory Re, 15 Jur. 1042. Or where This narrower sense of the word " exe- he afiSxed a seal stamped with his ini- cution " is not to be commended for tials, and pronounced it his " hand and modern practice. seal." Emerson, Goods of, L. R. 9 Ir. 8 Baker v. Dening, 8 Ad. & El. 94; 443. Sprague v. Luther, 8 R. I. 252; Chase ' Vandruff v. Rinehart, 29 Penn'. St. V. Kittredge, 11 Allen, 49; Higgins v. 232; Stevens v. Van Cleve, 4 Wash. Carlton, 28 Md. 115; Cozzen's Will, 61 (U. S. Cir.) 262. In Wilson v. Bed- Fenn. St. 196. dard, 12 Sim. 28, some stress was laid 316 CHAP. II.J SIGNATURE BY THE TESTATOR. § 3O4 his name ; ^ or where only the Christian name was signed ; ^ provided that in all such cases the testator's knowledge and* free consent and completed testamentary purpose accompany the act, which here is an act of signature by himself. The statute is satisfied, moreover, where the testator hav- ing requested another to sign the paper as his will for him, the latter complies under the strict precautions of the code.* Or where, in the testator's presence and by his direction, another person under the same precautions stamps the will by way of signature with an instrument on which the testa- tor has had his usual signature engraved for convenience in stamping letters or other documents requiring his signature.* For under the Statute of Frauds, as well as the Wills Act of Victoria, and various codes in the United States, provision is made for the signing of the will, not only by the testator himself, but also by some other person in his presence and by his express direction.^ There are States, however, where this signing by another is placed by legislation under much nan'ower restraints.* § 304. The Same Subject. — It has been held in some in- stances that where the testator signs under an assumed name, such a signature may satisfy the statute by passing as the testator's mark.'^ However this may be, an imperfect or indistinct subscription of the testator's name to the will may be regarded as his mark.^ There are American statutes, upon the circumstance that the testator, signing with the ordinary writing ma- before having his hand guided to exe- terials; the essential question being cute the paper, made some faint strokes whether such an instrument was used upon each of the sheets. animo testandi. In the present case 1 See Jenkins v. Gaisford, 3 Sw. & the testator was paralyzed, and the Xr. 93. stamp made for him on that account. 2 Knox's Estate, 131 Penn. St. 220. ^ Supra, §§ 300, 301; Riley v. Riley, " Custom controls the rule of names, 36 Ala. 496. and so it does the rule of signatures." ^ McElwaine Re, 3 C. E. Green, 499; lb. 231. Vines v. Clingfost, 2i Ark. 309. 8 Vernon v. Kirk, 30 Penn. St. 218; ' Redding, Goods of, 2 Robert. 339; Abraham v. Wilkins, 17 Ark. 292. I Wms. Exrs. 76. * Jenkins v. Gaisford, 3 Sw. & Tr. 93. ' Hartwell v. McMaster, I Redf. Erga, such a stamp the testator may use 389. to make his own signature, instead of § 30S LAW OF WILLS. ' [PART III. furthermore, which expressly authorize the signature by •mark.^ But it should still be observed that the mark or indistinct subscription by the testator should have been in- tended by him as his signature.^ § 305. A Prudent Testator will write out his own Signature if he can. — But while the signature by mark, by a stamping device, or by the hand of some other person in the testator's presence, by his express direction, may satisfy the letter of legal requirement, no one who is competent to write out his own signature executes his will wisely, unless he either signs thus or shows some good reason to the contrary, which can be explained at the probate. For the burden of establishing the instrument he leaves behind is sufficiently great, even though he should cast no needless discredit upon it. The uncommon modes of signing naturally import illiteracy^ fee- bleness, or dependence upon others, and easily encourage the imputation of fraud, imposition, or error in the transaction, unless very cautiously pursued.^ In Pennsylvania, and some other States, the testator must sign by his own proper signa- 1 Smith V. Dolby, 4 Harring. 350; ability to sign was caused by the Burford v. Burford, 29 Penn. St. 221. extremity of the last illness." The Pennsylvania act referred to in 2 On the supposition that a faint mark Burford v. Burford, supra, was passed or marks on the writing set up as a will in 1848 under singular circumstances, did not appear to have been placed Contrary to the current of English and there with the intent of signing, a will American authority, the Pennsylvania was pronounced invalid in Everhart ». courts took early ground that signing by Everhart, 34 Fed. R. 82. Where a tes- mark or cross would not give the will tator, who, in his ordinary condition, validity. Cavett's Appeal, 8 W. & S. can write his name, makes such a mark 21; 5 Penn. St. 21,441; Greenough t;. in an unusual place, there is all the Greenough, 1 1 Penn. St. 489. The more ground for doubting that he fully statute thus strictly construed was the intended a signature. lb. § 313. act of 1833, taken from 29 Car. II. § 2, s Mr. Jarman, writing for English under which it had been repeatedly readers, considers it inadvisable for a decided that a signature by mark was testator in these days to sign by another, sufficient. The above cases were justly unless physically very weak, so that he criticised in Vernon v. Kirk, 30 Penn. cannot even make his mark. Even St. 218, where it was said: "If a mark illiterate persons and paralytics had was not a signature within the meaning better sign by mark than sign by an- of the statute, then those unable to other. (See 3 Curt. 752.) In short, write could not sign, and signing by as he observes, the testator should con- another was permitted only when in- form as nearly as possible to his usual mode. I Jarm. Wills, no. 318 CHAP. II.] SIGNATURE BY THE TESTATOR. § 3o6 ture, if he is able to do so ; ^ and though most authorities have ruled less positively on the subject, it seems always proper, where a testator habitually wrote his own name and did not in this instance, for the court, in case of a contest, to try and elicit some explanation, and, if none satisfactory be given, to take the circumstance into account adversely, where other suspicious circumstances of more positive bearing are shown besides. Signing by another is especially liable to doubt and suspicion. Nevertheless, the general rule in the American States is said to be, that the testator may sign by his mark, and that where he does so, it will be presumed that he does it from necessity, either temporary or permanent.^ § 306. Local Variations of Rule; Signature by Testator himself and by another distinguished. — If the rule on this subject appears rather uncertain, we must first allow for local variations in statute and each legislative policy. Next, we should bear in mind, that signature by the testator himself and signature by another are distinguished in all these codes. There is by no means the same facility accorded for signa- ture by attorney where a will is to be executed as in the ordinary transactions of life. If an illiterate but intelligent testator makes cross-strokes with his pen upon the paper, the act of signature is his own ; and so, too, where the hand of a testator, who is physically unable to subscribe without assistance, is guided by another. Wherever, in truth, the act is the testator's own act, animo testandi, though with the assistance of another, it is not necessary to prove any express request for assistance on his part.^ And under any ij Penn. St. 21,441. Cf. Cozzen's bring the will within the exception, there Will, 61 Penn. St. 196. And see But- must be two witnesses to show, (i) the ler V. Benson, I Barb. 526; Fritz v. inability of the testator to sign, (2) his Turner, 46 N. J. Eq. 515. inability to direct another to sign. 2 I Redf. Wills, 205, note, citing Rudffs Appeal, 26 Penn. St. 219. And Upchurch v. Upchurch, 16 B. Mon. 102; see 9 Penn. St. 54. and Ray v. Hill, 3 Strobh. 297. » Van Hanswick v. Wiese, 44 Barb. The Pennsylvania statute requires the 494; Vandruff v. Rinehart, 29 Penn. testator to sign, or direct another to St. 232. sign for him, unless prevented by the Where a testator subscribes by mark, extremity of his last illness; and to it is the mark, and not the name written § 306 LAW OF WILLS. [PART III. circumstances, a testator signs his will, where he makes the physical effort, and performs the act, even though his hand be steadied or guided by another, if something is produced upon the paper, sufficient to identify his signature, and his own purpose to sign accompanied the action, while he was assisted and not controlled.^ But the mere fact that the testator's name is written, or his mark made by another person, affords no presumptive evidence that it was done at his request and in his presence.^ As to this act of another under authority from the testator, the statute direction, usually imperative and strict, must be carefully observed ; for wherever the " signing " is, so to speak, not the testator's own, but something which he is to adopt, great hazard is incurred.^ A subscription, " A. B. for C. D., at his request," is held a sufficient form to be fol- lowed ; * and under many State codes this form would doubtless be dispensed with, upon due proof of the surround- ing circumstances, showing that all was rightly and properly done. But there are American codes which insist upon more than this ; that of New Jersey, for instance, whose policy guards with great jealousy the making of a will without the testator's own signature. In this State, the statute providing that " the signature shall be made by the testator, or the making* thereof acknowledged by him in the presence of two witnesses," it is held insufficient that another should write the name at the request of the testator.* And generally round it by another, which constitutes he signs; and the addition of the words the subscription; and hence it is imma- "his mark " by a stranger does not im- terial whether such name is written be- pair the validity of his signature. Grubbs fore or after the mark is made. Jack- v. McDonald, 91 Penn. St. 236. And son V. Jackson, 39 N. Y. 153. The see Jackson ». Jackson, 39 N. Y. 153. writing of the testator's name with the * Vernon v. Kirk, 30 Penn. St. 218; words "his mark" to identify a sub- Abrahams. Wilkins, 17 Ark. 292. scription by mark, is not the " signing 5 McElwaine He, 3 C. E. Green, of his name by his direction," etc., un- 499. In this case the testator adopted der the statute. lb. the signature as his before two wit- 1 See Fritz v. Turner, 46 N. J. Eq. nesses, but did not " acknowledge the 515- making thereof." This decision was a 2 Greenough v. Greenough, 1 1 Penn. harsh one, and, as the court admitted, St. 489. set aside, in fact, what the deceased ' If a testator makes his own mark, doubtless had intended as his will; it 320 CHAP. II.] SIGNATURE BY THE TESTATOR. § 308 speaking, there rmist be no ambiguous proof of authority to sign on the testator's behalf ; for " express direction," and not indirect permission, is the usual intendment of our codes. ^ § 307. The Same Subject : English Rule. — Under the Stat- ute of Victoria it has been held that where the testator duly acknowledged his signature to the attesting witnesses, this is prima facie sufficient, without proving that the signature is in his handwriting or that it was made by some other person in his presence and by his direction.^ And the person who signs for the testator, at the latter's express request, may sign the will for him, not in the testator's name, but using his own name.^ But this signature in one's presence by a third party must, in general, be accompanied by some act or word on the part of the testator, to show that it was made at his request.* § 308. Testator's Name may be afBzed by a Subscribing Wit- ness. — A testator's name may, at his request and in his pres- ence, be affixed to his will by a competent subscribing witness, as well as by any third party ; and the effect of this is the same as though the name were written by the testator him- self.^ Some codes ma:ke it imperative that any one who shall proceeded upon a close interpretation the will ran, " Signed on behalf of the of a strict statute. Cf. Smith v. Harris, testator, by me, A. B.," etc. And see I Robert. 262, which tends to the con- 6 notes Cas. 528, cited in i Jarm. Wills, trary view. 79, where the person who signed for And see Vines v. Qingfost, 21 Ark. the testator did so by writing at the 309, cited post, § 308. Under the foot, " This will was read and approved Missouri code strict formalities are pre- by C. F. B., by C. C, in the presence scribed vfhere one signs the testator's of," etc., and then followed the signa- name at his alleged request. McGee v. tures of the witnesses. These wills were Porter, 14 Mo. 611; 19 Mo. 609; 21 held good. Mo. 17. But in Ohio proof that one ^ Cf. it, Law Times, 643, and 20 signed in the testator's presence and by Law Times, 757. According to Mr. his express direction, is quite liberally Jarman, it is well where a third person treated. Haynes v. Haynes, 33 Ohio signs for the testator, to have it in the St. 59'8. See also Peake v. Jenkins, 80 name of the testator rather than of the Va. 293. amanuensis, who should be thus desig- 1 Waite V. rrisbie,4S Minn. 361. nated in the attestation clause, i Jarm. 2 Gaze V. Gaze, 3 Curt. 456. no. 8 Clark, Goods of, 2 Curt. 329. Here « Herbert v. Berrier, 81 Ind. i; Rob- 321 § 309 LAW OF WILLS. [PART IIL sign the testator's name by his direction, shall write his own name as a witness and state that he signed at request ; though where the testator holds the pen and another person guides it, the act, as we have seen, is the testator's own, and such writing and statement by the witness is not necessary.^ The English riile also permits the signature for the testa- tor in his presence and by his express direction to be made by one of the attesting witnesses.^ § 309. Seals are dispensed with ; Sealing is not " Signing." — A seal is not indispensable to a will in modern times, unless, as rarely happens, the local statute insists upon it.^ Nor is a will rendered invalid for want of a seal, even though the attestation clause should speak of its being " signed and sealed." * In various American States, indeed, the use of a seal has lost most of the efficacy our common law once be- stowed upon it. But testaments are still signed and sealed in very many instances ; and this solemn but simple precau- tion may often prove a sensible one for allaying doubt, where powers touching real estate are expressly given.^ At the same time, the unnecessary addition of a seal does not change a will into a deed, nor justify treating the instrument as partly a will and partly a deed when it was obviously meant as a will alone.® Sealing was once thought a sufficient substitute for signing where wills were to be executed ; but that doctrine is no ins V. Coryell, 27 Barb. 556; 6 Dem. 2 Blackf. 355; Grubbs v. McDonald, 262; Riley v. Riley, 36 Ala. 496. But 91 Penn. St. 236. see McElwaine Re, 3 C. E. Green, 499, ♦ 8 Mo. App. 66. under the peculiar statute of New ' The lex loci as to the method of Jersey. conveying land should not be un- 1 Vines v. Clingfost, 21 Ark. 309; heeded. In New Hampshire sealing is McGee v. Porter, 14 Mo. 611. required to a will of real estate, accoid- 2 Bailey, Goods of, i Curt. 914; ing to Rev. Stats. 1842, c. 156, § 6. So Smith V. Harris, i Robert 262. is it with one or two other States, i ' Avery v. Pixley, 4 Mass. 460; Piatt Jarm. Wills, 105, Bigelow's note. V. McCuUough, I McLean, 69; Wil- ^ Wuesthoff w. Germania Life Ins. Co., liams V. Burnett, Wright, 53; Arndt v. 107 N. Y. 580. Here the appointment Arndt, I S. & R. 256; Doe v. Pattison, of a guardian was the matter in contro- versy. 322 CHAP. II.] SIGNATURE BY THE TESTATOR. § 31 1 longer tenable ; ^ for it is clear that signing and sealing are different acts, though capable of being united.^ § 310. Misnomer or Discrepancy in the Signature, etc. — A document signed as one's will through some palpable error or fraud, when it was in reality another's will or no will at all, cannot of course stand.^ But if the right instrument is inten- tionally signed as one's own will, a mere misnomer or dis- crepancy of signature does not vitiate the paper, provided its genuineness be duly established. As where the will of T. D. describes the testator throughout by a wrong name, such as C. D. and he signs it by his right one.* Or where against the testator's mark a wrong name is written, the will describ- ing him by the right one.^ Or where the maiden name of a testatrix is interchanged with her married one under like cir- cumstances.^ And generally, where one signs animo testandi, though by a wrong or assumed name.^ A signature, whether by name or mark, satisfies the stat- ute, notwithstanding the testator's name does not appear at all in the body of the instrument.^ § 311. Position of the Signature; English Rule. — The place of signature to the will is insisted upon more strictly by some codes than others. The Statute of Frauds merely required that the will should be " signed " by the testator ; and hence, a will, intended as such, and expressed in the testator's own handwriting, which commenced " I, A. B., do declare this to be my last will," etc. , was treated as made in literal compli- 1 See 3 Lev. I; I Ves. Jr. 12; signature may aid in determining an Smith V. Evans, i Wils. 313; Wright issue of forgery. McGuire v. Kerr, 2 V. Wakeford, 17 Ves. 458; Pollock v. Bradf. 244. Glassell, 2 Gratt. 439 ; 1 Wms. Exrs. * Douce, Goods of, 2 Sw. & Tr. 593. 77 ; I Jarm. Wills, 78. It may be ^ Clarke, Goods of, I Sw. & Tr. 22. shown by oral testimony that the seal * lb. on a will was affixed by the testator's ' i Jarm. Wills, 78; Redding, Goods direction. Pollock z;. Glassell, ja/^-a. of, 2 Robert. 339; 5 Notes Gas. 553; 2 See Emerson, Goods of, L. R. 9 Ir. Long v. Zook, 13 Penn. St. 400. 443, where a testator affixed a seal with ' Bryce, Goods of, 2 Curt. 325. his initials, placed his finger on the seal, All such errors, discrepancies, or and called it his " hand and seal." This omissions, may be corrected, reconciled, was deemed a sufficient signing. or supplied by proof aliunde. * Supra, § 215. A misnomer in the 323 § 3" LAW OF WILLS. [PART III. ance with the act, though no signature was added at the end.^ But the mischief of setting up holographic wills which were likely enough to have been no more than the rough sketch of a will was apparent enough when the Statute of Victoria was framed. That statute, as we have just seen, designated the "foot or end of the will, as the place where the testator should write his signature.^ Doubts soon arose, however, in the construction of I Vict, c. 26 (1837), on this very point of a signature at the foot ; for testators would carelessly sign far below where the will itself was written, or at the foot of the attestation clause, or in other out of the way places ; and the question had to be de- cided whether the statute was thus complied with or not. At first inclined to a liberal interpretation, the courts soon settled upon a strict one, on the ground that the policy of the legis- lature was to guard against fraudulent additions to a will after the testator had executed it ; and in consequence the inten- tions of many who had not closely marshalled the body of the will behind the maker's own signature were frustrated.^ Hence was enacted afterwards the Stat. 15 Vict. c. 24 (1852), which somewhat verbosely explained the former act, and brought within its remedial scope not only future wills, but those already made, upon whose defective execution the set- tlement of the estates concerned had not yet been directed. The purport of this explanatory act was to make the precise place of signature of minor consequence, provided the signa- ^ Cook w. Patsons, Pre. Ch. 184; 3 as thus written was intended as a signa- Lev. I; Coles v. Trecothick, 9 Ves. 249; ture. See also Pearn, Goods of, i P. D. I Jarm. Wills, c. 79; i Wms. Exrs. 78. 70; Walker, Goods of, 2 Sw. &Tr. 354; ■2 Supra, § 300. Casmore, Goods of, L. R. I P. &D. 653. ' I Wms. Ejfrs. 78; Willis v. Lowe, The provisions of 15 Vict. c. 24 1 Robert. 618; Smeer v. YiTjst, i Rob- strengthen the favorable interpretation ert. 618; 6 Moore P. C. 404. that, under all the circumstances, the But probate of a will has been al- testator intended his signature in the lowed under Stat, i Vict. c. 26, § 9, testimonium clause to serve as the real where it concluded, " signed and sealed signature under the will. Pearn, Goods as for the will of me, C. E. T. W., in of, supra. A similar case was Huck- the presence of us, D. H. and E. H." as vale Re, L. R. i P. & D. 375, where the teing signed at the foot or end thereof, only signature of the instrument ap- Woodington Re, 2 Curt. 324. And see peared in the attestation clause, which 2 Sw. & Tt. 12. In such a case the was squeezed into what had been a court should be satisfied that the name blank space. 324 CHAP, ri.] SIGNATURE BY THE TESTATOR. § 31 1 ture itself was so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it could be gathered from the face of the will that the testator intended thereby to give the instrument effect as his will.^ While a more liberal turn is thus given to the latest decisions, there remains uncertainty still, as to precisely what shall constitute a valid signature in respect of position, so as to take the whole will under its cover.^ 1 The language of Stat. 15 Vict. c. which is underneath or which follows it. 24 (known as the Wills Amendment But it is held that where, from the obvi» Act of 1852) may be studied in i Wms. ous sequence and sense of the context, Exrs. 79-82. And see next note. it appears, to the satisfaction of the Under neither of these wills acts of court, that the signature of the deceased Victoria is it provided that the will shall really followed the disposing part of the be written continuously. Hence there will, the instrument will be entitled to might be blank intermediate spaces in probate without literal regard to the the body of the will, where the policy place it may occupy above on the paper, of the statute would fail to protect the Kimpton, Goods of, 3 Sw. & Tr. 427. In will against a fraudulent insertion sub. a recent case the will of the deceased sequent to the execution, in spite of its had an imperfect attestation clause, and pains to prevent addition at the foot and the name of the testator appeared before the. signature. See I Robert, written beneath the signatures of the 669, 705; I Wms. Exrs. 82. Where a attesting witnesses, and, both witnesses lithographed form of will was used, the being dead, no evidence could be given lithographed clauses being on the first as to the order in which the signatures page oiUy, and the testator wrote the were made. Nevertheless the will was will mainly on the second and third admitted to probate. Puddephate, pages, leaving the fourth page blank, Goods of, L. R. 1 P. & D. 97. and signed and executed at the foot of The Wills Amendment Act says that the first page instead of at the end of " no such will shall be affected by the her writing, the court sustained the circumstance that the signature shall signature as a due compliance with the not follow or be immediately after the statute of 15 Vict. c. 24. This conclu- foot or end of the will, or by the cir- sion was ingeniously reached; namely, cumstance that a blank space shall in- by supposing (as the whole sense of the tervene between the concluding word of will permitted) that the testator began the will and the signature, or by the cir- on the second and third pages, and so cumstance that the signature shall be came round to the first page, making placed among the words of the testi- the lithographed clauses in effect the moniutn clause or of the clause of at- conclusion of the will. Wotton, Goods testation, or shall follow or be after or of, L. R. 3 P. & D. ' i;9. under the clause of attestation, either '2 In I Wms. Exrs. 80, 81, the deci- with or without a blank space interven- sions on these statutes of Victoria, rela- ing, or shall follow or be after or under tive to signing at the foot, etc., are quite or beside the names or one of the names fully cited. The Wills Amendment Act of the subscribing witnesses, or by the of 1852, § I, declares expressly that no circumstance that the signature shall be signature shall be operative to give on a side or page or other portion of the effect to any disposition or direction paper or papers containing the will § 312 LAW OF WILLS. [part IIL § 3 1 2. Position of the Signature ; American Rule. — The Statutes of several American States expressly require the testator to sign his name at the end of the will ; as in New York, Pennsylvania, Ohio, Kansas, California, and Arkansas.^ And unquestionably this is the most natural and proper place of signature ; the attestation clause following, if there be one. But most of our codes are silent on this point ; and the prin- ciple which they inculcate is, rather, that the place of signa- ture is of secondary consequence, provided only that, where- ever the testator may have chosen to place his name, he meant it to stand for his final signature, and thereby authenticate the entire instrument as propounded.^ whereon no clause or paragraph or dis- signature, and was continued in three posing part of the will shall be written short lines to the left and extending above the signature, or by the circum- slightly below the signature, this sen- stance that there shall appear to be tence was included in the probate, the sufficient space on or at the bottom of evidence showing that it was written in the preceding side or page, or other before the testator signed, and that the portion of the same paper on which the attestation act followed. Ainsworth, will is written to contain the signature; and the enumeration of the above cir- cumstances shall not restrict the gener- ality of the above enactment." Stat. IS Vict. c. 24, § I. In order to obviate the objection that the will was not signed at the foot or end, the court has in some instances felt justified in regarding a portion running Goods of, L. R. 2 P. & D. 151. And see Woodley, Goods of, 3 Sw. & Tr. 429. In Hunt V. Hunt, L. R. I P. & D. 209, a will ended in the middle of the third page of a sheet of foolscap, and, the lower half of the page being left blank, the attestation clause and the signatures were written on the top of the fourth page. It was held that the below the signature as forming no part will was duly executed. See Hughes, of the will, and granting probate exclu- sive of that portion. See I Wms. Exrs. 80, and numerous citations; I Robert. 189, 424, 638, 755; 2 Robert. 116. Thus a testator, after signing his name to his will in presence of two witnesses, added a clause to it, the writing being crowded into the space above and beside the sig- nature. Immediately afterwards the Goods of, 12 P. D. 107; Margary v. Robinson, 12 P. D. 8. 1 I Jarm Wills, 105, Bigelow's note; 13 Barb. 17; Hewitt's Will, 91 N. Y. 261 ; Strieker v. Groves, 5 Whart. 386; I Wms. Exrs. 77, Perkins's Note; Sow- ard V. Soward, 1 Duv. 126; Glancy v. Glancy, 17 Ohio St. 1 34. And as to wills of real estate in New Jersey, see witnesses signed their names. The court Combs v. Jolly, 2 Green Ch. 625. granted probate of the will exclusive of ^ xhe rule is essentially that under this clause, on the ground that the tes- the English Statute of Frauds, upon tator did not sign or acknowledge his which our wills acts are based. Supra, signature to the will as containing it. § 255; Hall v. Hall, 17 Pick. 373; Up- Arthur, Goods of, L. R. 2 P. & D. 273. church v. Upchurch, 16 B. Mon. 102; But where the last sentence contained Ramsey v. Ramsey, 12 Gratt. 664; in a will executed by the deceased Adams v. Field, 21 Vt. 256; Armstrong commenced immediately above his v. Armstrong, 29 Ala. 538 326 CHAP. II. J SIGXATURE BY THE TESTATOR. § 312 From either legal standpoint, anything which appears to have been interpolated, added, or altered after the signature was affixed to the will fails of authentication unless adopted by the maker before his will is acknowledged, attested, and completely executed ; nor should his signature take effect at all unless fully intended by him as such ; and the only radical difference in policy in our codes appears to consist in the formal precautions which the legislature may have taken to prevent either apprehended mischief.^ The objectionable character of the old English doctrine of a testator's sig- nature, in construction of the Statute of Frauds, is well pointed out in a late Virginia case (1890). The Virginia courts followed reluctantly the old Eng- lish rule, which made a testator's name written by him in the body of the paper serve as a final execution; thus depriv- ing the instrument of all proof upon its face that the testamentary intent was final. At length in 1850 was enacted in this State a statute, based upon the English act of i Vict. c. 26, which re- quired that the signature should be "in such manner as to make it manifest that the name is intended to be as a signa- ture." Under this latter enactment, where a paper wholly in the testator's handwriting began " I, A. B., declare this to be my last will and testament," but nowhere else contained the testator's signature, it was held that there was no valid will, notwithstanding the document was enclosed in a. sealed envelope on which was written in the testator's handwriting, "My will, A. B." War- wick V. Warwick. 86 Va. 596. As for States whose codes originated in the civil law, there are special reasons why the testator's name in the body of the writing should not be treated as a signature when not intended as such, even though the writer supposed no sig- nature necessary. In a recent Louisiana case this doctrine is deduced from the famous code of the State. That code, art. 1588, provides that holographic wills shall bp " entirely written, dated, 3 and signed, in the handwriting of him or those making them." This article was copied from the Code Napoleon, which in turn was taken from an ordi- nance of Louis XV. The jurisprudence of France has been uniformly to the effect that the signature must be at the end of the testament, or, at least, that no disposition following the signature can avail as a will. Armant's Will, 43 La. Ann. 310. C/. § 255, sujira and case cited. 1 Some late New York cases apply the local statute, which requires the will to be signed and witnessed at the end, so as to reject what may happen to fol- low these signatures as constituting no part of the will. A will was written upon two sides of a piece of paper and signed by the witnesses at the bottom of the first and at the top of the second side. An important provision followed these last signatures, and it was held that the execution did not embrace it. Hewitt's Will, 91 N. Y. z6i. An im- portant provision upon the fourth page of a will following a signature and at- testation at the foot of the third page was likewise rejected in toto from the probate; nor would the court consent to treat that provision as an interlinea- tion, nor as valid in part and invalid in part. O'Neil's Will, 91 N. Y. 516. See also Conway's Will, 1 24 N. Y. 455, where (three judges dissenting) an execution at the end of the first page where the will was continued to the second page, with reference back was held invalid. 95 N. Y. 145 was here distinguished. 27 § 312 . LAW OF WILLS. [PART HI. Some American cases seem to consider that the testator's purpose and intention to sign must appear on the face of the will ; ^ but this is perhaps too narrow a view to take. Where, indeed, the testator's name was written only at the commence- ment of the will, the end being left blank, and nothing on the face of the paper indicates affirmatively that he intended it as his signature, the presumption may well be that in the legal and natural sense he did not sign.^ But his subscrip- tion at the end, not of the testimonium, but of the attestation clause (or in the midst of the latter) indicates the contrary rather ; ^ and such a subscription accompanied by attestation is even held to comply with a statute which requires the sub- scription to be "at the end of the will."* The acknowledg- ment of the instrument before attesting witnesses (who subscribe their names), without alluding to any further act of signing or otherwise qualifying the execution, may now be taken as a strong circumstance in favor of intended signa- ture, wherever the maker's name may be found ; for if he fails to sign, it is probably through inadvertence ; and, vice versa, his signature without an attestation can avail little in modem In Kentucky, too, it is held that no suspicion of bad faith or reckless where all of the names must appear error in signing clings to the transaction, at the end of the will, a signature by Where the final clause of a will which the testator, so separated by turning appoints an executor appears below the a sheet from that of the witnesses and testator's signature, the question of from the body of the will itself, that whether the will is invalid, or such fraudulent additions might be made to clause surplusage, depends upon when the instrument, is not a valid execu- it was inserted. 6 Dem. 298. But if tion. One object of such a statute, it the will was all prepared at one time is here said, is to prevent fraudulent for execution, and the testator's signa- additions from being made to a v/ill. ture precedes the final clause which Soward v. So ward, r Duv. 126. But appoints executors, the will is not no rule can be laid down as to what is signed " at the end thereof," within the an unreasonable or unnecessary blank requirement of local statute. Wine- Space in such cases. lb. land's Appeal, 118 Penn. St. 37. We apprehend that under legislation 1 See Waller v. Waller, i Gratt. 454; like the above, American courts of pro- Graham v. Graham, 10 Ired. 219; I bate will show no less solicitude than Wms. Exrs. 77, Perkins's note, the English tribunals, to protect a clause 2 Ramsey v. Ramsey, 13 Gratt. 664. crowded at the foot of a will about the Cf. Watts v. Public Admr. 4 Wend. 168. signature of the testator, without too * Hallowell v. Hallowell, 88 Ind- literal a construction of the statute, pro- 25 1 . Tided the fact of its insertion before the * Younger v. Duffie, 94 N. Y. 535- execution of the will clearly appears and Cohen's Will, i Tuck. 286; 5 Dem. 19. 328 CHAP, II. J SIGNATURE BY THE T^TATOR. § 3^4 policy. And there seems no reason why the surrounding cir- cumstances of execution may not be investigated to resolve a doubt and conclude the issue justly by the evidence.^ For after all these statute precautions, the integrity and genuine- ness of the instrument should be the main concern at the probate. § 313- 'W'hatever the Place, a Signing must have been in- tended. — Whatever the local position of the signature by statute permission, the true principle is, that it must have been placed there with the design of finally authenticating the instrument, no further signature on the maker's part being contemplated. A name originally written without such final design may, it is true, have that final effect afterwards, by the testator's subsequent adoption of the signature as his final one ; and such would probably be presumed his inten- tion if he acknowledged the instrument as his will to the attesting witnesses without alluding to any further act of signing.^ But if, on the other hand, the testator intended, to the last, another signature which he never made, the will should be considered as unsigned ; ^ and so, too, it would appear, if the testator supposed no signature at all essential ; to say nothing of its incomplete execution in other respects which the statute made essential. § 314. One Signature or more for Several Sheets, — One signature may suffice for several sheets of paper; and the natural, if not the imperative place for signing is where the will ends on the last sheet ; though, as a precaution against fraud, a maker sometimes places his name on the consecutive sheets. The fastening together of the sheets as found at the 1 Where the statute requires the will tention to sign again may be shown by to be signed " at the end " and wit- parol evidence, where doubt is left on nessed, and it appears in a case that the face of the will, as a foundation for the testator alone signed, and called admitting proof aliunde. Right v. later for his will " to finish it," added a Price, I Dougl. 241 ; Ramsey v. Ram- bequest and then had the witnesses sey, 13 Gratt. 664. sign, without signing anew, the whole ' i Jarm. Wills, 79. This point was will must be held invalid. Glancy v. apparently decided in Right v. Price, I Clancy, 17 Ohio St. 134. Dougl. 241. '^ I Jarm. Wills, 79. Semble, the in- 329 § 317 LAW OF WILLS. [part III. testator's death, is presumed to be the same as when the will was executed ; and in absence of proof to the contrary, their identity and consecutive order should be taken accordingly, as constituting the full and genuine will of the deceased.^ But the question whether or not all the sheets of the will as propounded were attached at the time of signature, or there has been a fraudulent or informal change since, is to be decided as an issue of fact upon all the evidence.^ Where the testator signs the will on several sheets, or in different places, the last signature, if at the end of the will, is the efificient one.^ § 315. One Signature where Will has been written by Por- tions. — Where, again, it appears that a will has been written by portions, various clauses being composed and inserted at different times, one signature and attestation applies suffi- ciently to each and all of the dispositions contained in the instrument as they finally stood at the date of execution.* § 316. Signatures may be upon Paper fastened to the Will. — A valid signature may be made on a separate piece of paper which is stuck or fastened to the body of the will, and contains nothing but the signature and attestation ; ^ pro- vided it be shown that the execution was bona fide and regu- lar in other respects, and the paper duly fastened at or before the time of attestation.^ § 3 1 7. 'Wills of Blind, Disabled and Illiterate Persons ; how made known to them. — The civil law required that the written will of a blind person should be read over to him and approved by him in presence of the subscribing witnesses.^ Gur common law lays down no such imperative rule ; but with regard to both blind and illiterate, and all who cannot 1 Rees V. Rees, L. R. 3 P. & D. 84; * Cattrall, Goods of, 4 Sw. & Tr. 419. Marsh v. Marsh, i Sw. & Tr. 528; Ton- « Horsford Re, L. R. 3 P. & D. 211; nele v. Hall, 4 Comst. 140; Wikoff's 2 Sw. & Tr. 362; Cook v. Lambert, 3 Appeal, IS Penn. St. 281 ; Ela w. Ed- Sw. & Tr. 46. wards, 16 Gray, 91; Martin z/. Hamblin, 632 L.J. Prob. 182; i Jarm. Wills, 4 Strobh. 188. 79. 2 Ginder v. Farnum, lo Penn. St. 98. ' i Wms. Exrs. 19; Swinb. pt. 2, ' Evans's Appeal, 58 Penn. St. 238. § il. CHAP. II.] SIGNATURE BY THE TESTATOR. ^3^7^ read what is written out as their will, requires satisfactory proof of some kind to the effect that the testator knew and approved of the contents of the will which was executed as his own.^ Such a will may be read over to the vestator before signing, apart from his witnesses ;^ or it may be shown that the contents were correctly made known to him without any formal reading at all ; * provided it appear, on the whole, that the instrument as drawn up and executed constituted his own testamentary disposition as intended by him. Less than this, however, is unacceptable ; and where the will, without being read over or examined, is signed by the testator upon an assurance that it has been prepared according to his instructions, when in point of fact it has not been, probate should be refused.* Corresponding considerations may apply to the wills of those who are deaf, but not blind ; and a testator of this latter description would fitly assure himself that the instrument is correct by reading it over instead of having it read to him ; and here, once more, the controlling question would be whether the instrument in question em- braced his testamentary intentions. § 317^. Declarations of Testator inadmissible on the issue of Execution. — The declarations of a testator, before or after making a will, are inadmissible on the issue of its execution.^ ijb.; Axford Jie, I Sw. & Tr. 540; We need hardly observe that it be- 2 Cas. temp. Lee, 595; Martin v. hooves every testator who is illiterate, Mitchell, 28 Geo. 382 ; Wampler v. blind, or otherwise much dependent Wampler, 9 Md. 540; Day v. Day, 2 upon the accuracy and good faith of Green Ch. 549; 3 Phillim. 455, note; those about him, to be especially heed- 6 Dem. 478; Worthington v. Klemm, 144 ful that his last wishes are correctly, Mass. 167. Having the will read over expressed in the instrument which he in presence of the witnesses and then executes, and that no fraud or imposi- executing is a good fulfilment of re- tion is practised upon him. quirements under the New York code, The court, moreover, should take es- in case of the blind. See Moore v. pecial care to avoid, in such cases, rul- Moore, 2 Bradf. 261. ings upon the point of capacity or free 2 Martin v. Mitchell, 28 Geo. 382; will which, though abstractly correct, Wampler v. Wampler, 9 Md. 540; 2 might mislead the jury. Bull's Will, Dev. Law, 291. in N. Y. 624. 8 I Wms. Exrs. 19; Fincham v. Ed- * Waite v. Frisbie (Minn.), 1891. wards, 3 Curt. 63; 4 Moore P. C. 198; ^ Kennedy v. Upshaw, 64 Tex. 411, Boyd V. Cook, 3 Leigh. 32; Hess's Ap- and cases cited; Couch v. Eastham, 27 peal, 43 Penn. St. 73; 11 Phila. 161. W. Va. 796. § 3l8 LAW OF WILLS. [PART IIL CHAPTER III. ATTESTATION AND SUBSCRIPTION BY WITNESSES. § 318. Attestation or Subscription independently of Statute. — In England wills of personal property made before Jan- uary I, 1838, needed no attestation or subscription in order to operate ;i custody was their sufficient publication, although it was safer and more prudent, as the jurists used to say, and left less in the breast of the ecclesiastical judge, if they were published in the presence of witnesses.^ Some of the older' authorities, indeed, were supposed to lay it down that a pub- lication before two witnesses was indispensable; but what they meant was probably to recommend so prudent a course, or else to refer to that fundamental rule of the civilians which required two witnesses to prove every fact.^ That the testa- ment itself had to be subscribed by two or more witnesses, or a single one, to give it validity, was neither affirmed nor pretended.* But witnesses were often called in, nevertheless, to attest one's will ; and after the Statute of Frauds rendered such attestation necessary for wills of real estate, it became quite common for a testator to waive the legal exemption in favor of his personalty, and guard the final disposition as a whole by a subscription ; his three witnesses signing their names after an attestation clause. Hence came the rule, that where an instrument drawn up as one's will professed to dispose of both real and personal property, or even personalty alone, but an attestation clause was appended without signatures, it should be presumed that the testamentary intention never took full 1 I Wras, Exrs. 84. pt. i, § 3, pi. 13; Godolph. pt. i, c. 21, 2 Com. Rep. 452; Miller v. Brown, 2 §1. Hagg. 211. * Brett f. Brett, 3 Add. 224; i Wms. ' I Wms. Exrs. 84, citing Btacton, Exrs. 85. lib. 2, f. 61 ; Fleta, lib. 2, f. 125; Swinb. 332 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 319 effect.1 But this rule was one of presumption merely, pro- ceeding, of course, upon the theory that the incomplete exe- cution showed an incomplete purpose ; and this presumption might be repelled by slight evidence, showing that in fact the testator had intended it to operate without an attestation, so far, at least, as his personal property was concerned, or that act of God prevented him from finishing the instrument to which his mind had fully and finally assented.^ § 319. Attestation under Modern Statutes. — As to wills, however, which are made at the present day in compliance with modern statutes, the rule of attestation by subscribing witnesses is far more widely imperative. Thus in England, by the Modern Wills Act, i Vict. c. 26, § 9, it is enacted that no will made on or after January i, 1838, shall be valid, un- less the signature is "made or acknowledged by the testator in the presence of two or more witnesses present at the same time " ; and these witnesses are to attest and subscribe the will in the testator's presence, no particular form of attesta- tion, however, being necessary.^ As for any will or devise of real estate, the Statute of Frauds, 29 Car. II. c. 3, had for a century and a half made the attestation of at least three witnesses indispensable.* 1 I Wms. Exrs. 85; i Add. 154, 159; which mak« a special feature of the Walker v. Walker, i Meriv. 503; Math- legislation of various States, dispense ews V. Warner, 4 Ves. 186; 5 Ves. 23. with attestation by witnesses altogether, Where there was no regular attestation provided the will be wholly written out, clause, but only the word " witnesses," signed, and dated by the testator, non-attestation by witnesses afforded a Supra, § 255. Hence in Virginia such much slighter inference of incomplete a will was lately sustained as valid, even testamentary purpose. Doker v. Goff, though it contained an unsigned attes- 2 Add. 42. tation clause. And another paper of a ^Buckle V. Buckle, 3 PhiUim. 323; testamentary character, bearing the same I Wms. Exrs. 85, 86; 1 Hagg. 252, date, and found folded up with such 551, jg6, 698. will, and similarly written and signed, A first step was taken by the codifiers was pronounced a valid codicil. Per- in some of our States, towards requiring kins v. Jones, 84 Va. 358. And see attestation in all wills, by a statute Soher's Estate, 78 Cal. 477, which dis- which prescribed full formalities of exe- inclines to treat one witness's signature cution, not only for devises, but where a to a holograph will as amounting to an will purported to dispose of ,both real incomplete attestation, and personal property. .See 15 Pick. » See App.; i Wms. Exrs. preface. 303. * A will of lands, under the Statute of Holograph wills, as we have seen, Frauds, § 5, must be " attested and subr 333 § 319 LAW OF WILLS. [PART III. A comparison of the language used in these two great enactments will show various important points of difference between them. The most obvious one is, that two witnesses sufHciently attest all wills made after the year 1837, whether relating to real or to personal property, or to both ; three wit- nesses being no longer requisite for any will or devise. Other points for comparison will appear in the course of this chap- ter.i In the several American States will be found local statutes with corresponding differences of detail ; so that no single principle can be laid down to embrace the entire doctrine. Witnesses vary in number ; in some States, as under the old Statute of Frauds, they are to " attest and subscribe " the will, and nothing is said about requiring a testator to "make or acknowledge " the will in their presence ; nor do all States insist that all the witnesses shall attest and subscribe in the presence of one another, but merely in the presence of the testator, another feature copied from the earlier English enactment. In fact, our American wills acts appear based in expression less upon the act of Victoria than that of Charles II.; yet they vary quite as widely in details as do these English enactments, and the latest tendency conforms more to the statute of Victoria or that' of the New York code, which is somewhat similar.^ scribed in the presence of the devisor, ^ A good example of the older form by three or four credible witnesses." of expression is found in the Massachu- See I Wms. Exrs. 87; I Jarm. Wills, setts code, which requires the will to be 77. " attested and subscribed in his [the 1 The Statute of Frauds required wit- testator's] presence by three or more nesses to attest and subscribe the will; competent witnesses." Mass. Gen. Stat, but that of Victoria requires that the c. 92, § 6. The turn of this phrase is testator's signature be " made or ac- like that of the old Statute of Frauds, knowledged " in their presence. Attes- But the New York enactment, which so tation in the presence of the testator, many other legislatures follow, is ex- though not of each other, might have pressed in various sentences embodying sufficed under the earlier statute, but it consecutive directions, viz. : the sub- does not so clearly under the later. And scription shall be made by the testator as to publication and form of attestation, in the presence of each of the attesting the statute of Victoria has special provi- witnesses, or shall be acknowledged by sions not found in the Statute of Frauds, him to have been so made, to each of These matters will be examined pres- the attesting witnesses; there shall be ently. a declaration by the testator, etc.; there 334 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 321 § 320. Number of Subscribing ■Witnesses required. — First, then, as to the number of subscribing witnesses required. By the present English statute, two witnesses at least are requisite, whatever the kind of property disposed of.^ As for this country, there must be at least three witnesses by the rule now or lately prevalent in most parts of New Eng- land; also in South Carolina, Florida, and Georgia.^ Two witnesses, however, suffice in the majority of American States, including Rhode Island, New York, New Jersey, and most of the Southern and Western States.^ Upon the ex- ceptional rules of various States as to attestation for different kinds of property or non-attestation when a holographic will is made, we have already touched.* § 321. Signing or ackno-wledging before the Witnesses; English Rule. — Next, we consider the signing or acknowledg- ment of the will before the witnesses. Upon this point is found a difference of statute expression and hence of statute construction, which is of especial consequence where the- testator signs his will and then seeks out witnesses afterwards. The old Statute of Frauds required witnesses to attest and subscribe the will ; which was interpreted to mean, that the testator was not obliged to sign in the presence of the wit- nesses, provided he made before them a due acknowledgment of the instrument ; and, furthermore, that a due acknowledg- ment in fact did not necessitate his acknowledging in words that the instrument was his will, nor apprising the witnesses in any way of the nature or contents of the instrument they were called upon to attest. A testator's declaration before three witnesses that the instrument produced and already shall be at least two attesting witnesses, number of indispensable witnesses since each of whom shall sign his name as a 1870. Cf. also for latest statutory witness at the end of the will at the changes, Stimson's Am. Stat. Law, request of the testator. 2 N. Y. Rev. § 2644. Stats, p. 63, §§ 40, 41. Where a paper purporting to be a 1 Acts I Vict. c. 26, and 29 Car. II. will is signed "A by B" and witnessed c. 3, § 5, cited preceding section. " Witness C," B is not one of the two 2 I Jarm. Wills, 77. subscribing witnesses within the mean- » See I Jarm. Wills, 77, Bigelow's ing of the statute. Peake v. Jenkins, note; also the various local codes, some 80 Va. 293. of which appear to have reduced the * Supra, §§ 254-256. 335 § 321 LAW OF WILLS. [pART IIL signed by him was his will, was equivalent to signing it before them.^ And more than this, though he merely asked the witnesses to sign, as such, the paper he produced which bore his signature, and they did so, neither seeing his signature nor knowing what was the nature of the instrument thus attested, the statute, nevertheless, was satisfied; sup- posing of course that this whole transaction imported con- sistently the full testamentary intent on his part.^ But the statute of Victoria uses a different language. The execution here prescribed makes " the signaiure," and not, as before, "the will," the subject of acknowledgment in presence of the witnesses. A stricter rule of construction has arisen in consequence, and the result of the latest cases appears to establish : (i) That the testator sufficiently acknowledges his signature, where he produces the will, with his signature visibly apparent on its face, and requests the witnesses to subscribe it ; ^ (2) but not where the witnesses neither saw nor could have seen the signature, especially if he did not ' explain the instrument to them.* And stress being here laid upon the signature, the main requirement is that the witnesses saw or might have seen it, as written by the testator consist- ently with the full and bona fide intent on his part of exe- cuting his will then and there. For if the signature was 1 Ellis V. Smith, i Ves. Jr. 11, over- dal, C. J., in British Museum v. White, Tuling Lord Hardwicke's doubt ex- supra. ;pressed in Gryle v. Gryle, 2 Atk. .176^ ' i Wms. Exrs. 88, and cases cited; Casement v. Fulton, 5 Moore P. C. Huckvale, Goods of, L. R. i P. & D. 138- 378; Davis Re, 3 Curt. 748; i Jarm. 2 British Museum v. White, 6 Bing. Wills, 108. 310; 7 Bing. 457; i Rob. 14; Gaze w. < , Wms. Exrs. 88; i Jarm. Wills, Gaze, 3 Curt. 451. "When we find the 88; Swinford, Goods of, L. R. I P. & testator knew this instrument to be his D. 630; Gunstan, Goods of, 7 P. D. 102. will; that he produced it to the three If the witnesses neither saw nor persons, and asked them to sign the might have seen the signature, it is not same; that he intended them to sign it even sufficient that the testator should as witnesses; that they subscribed their expressly declare that the paper to be names in his presence, and returned the attested bythem was his will, i Jarm. same identical instrument to him; we Wills, 88; Shaw z;. Neville, I Jur. N. S. think the testator did acknowledge in 408. Beckett v. Howe, L. R. 2 P. fact, though not in words, to the three & D. I, appears contra ; but this is witnesses, that the will was his." Tin- overruled by Gunstan, Goods o^ 7 P. D. 102. CHAP. III.J ATTESTATION AND SUBSCRIPTION. § 322 visibly apparent on the paper thus produced to them, it is held that an express acknowledgment thereof in words may be dispensed with on the testator's part, as well as his state- ment that the paper is his will; that he may be reticent as to both nature and contents of the instrument ; ^ that he may say "this is my will," or "this is my signature," or simply ask the witnesses to put their names under his, or request them to sign the paper, or make known his acknowledgment by gestures.^ And there may even be an acknowledgment by some person in the testator's presence under circum- stances of sanction and adoption by the latter, so as to satisfy the statute.^ The acknowledgment of which we have spoken is the per- mitted substitute for signing in presence of the witnesses. The testator (or the person in his presence and by his direc- ,tion) should sign first, the witnesses afterwards ; if the testa- tor signs in presence of all the witnesses, that is enough; but where his signature was already on the paper when a witness was asked to sign, the sufficiency of his acknowledg- ment must be considered. It is decidedly preferable that a testator should avoid all such nice controversy, by bringing the witnesses all into his presence together and then signing his will before them. § 322. The Same Subject; Presumption of Due Attestation. — It is possible that the testator's signature was on the will where the witnesses might have seen it, but inadvertently did not ; it is possible, too, that the precise circumstances of attestation may have faded from the recollection of a witness 1 Keigwin v. Keigwin, 3 Curt. 607; tion' all the English precedents up to Huckvale JRe, L. R. i P. & D. 375. 1874, under either the new statute or 2 I Wms. Exrs. 88, and cases cited; the old, showed some word or act of the Gaze V. Gaze, 3 Curt. 451 ; 3 Curt. 172, testator himself by way of acknowledg- 547; I Jaim. Wills, 108, 109; 2 Rob. ment. That exception (6 No. Ca. 337. Suppl. 12) is discussed in Inglesant v. »i Jarm. WUls, 108; i Curt. 908; Inglesant, j»/ra. See Morritt w. Doug- Inglesant v. Inglesant, L. R. 3 P. & D. las, L. R. 3 P. & D. I. 172. Such cases seldom arise; and the On a re-execution, it is enough to acts and conduct of the testator on the merely acknowledge the signature made occasion should be very carefully scru- on a former execution. 17 Jur. 1130; tinized in such cases. With one excep- i Jarm. Wills, 109. 337 § 322 LAW OF WILLS. [PART III. hy the time the will is presented for probate. Where all appears regular on the face of the will a due attestation should be presumed ; and direct evidence that the name of the testator was visible on the face of the will when it was produced for witnesses to sign is certainly not necessary.^ The result of the cases under the statute of Victoria, where acknowledging and not signing in presence is relied upon, or in other words, that the testator's signature was already upon the will when it was produced to the witnesses for their attestation, appears to be this : that in the absence of direct evidence on the point one way or the other, the court may, independently of any positive evidence, investigate the cir- cumstances of the case, and may form its own opinion from these circumstances, and from the appearance of the docu- ment itself, whether the name of the testator was or was not upon it (or rather might not have been seen), at the time of the attestation. 2 But the court should mainly consider whether the witnesses did not see, or at least have an oppor- tunity of seeing, the testator's signature when they attested ; for if they did not, it is immaterial that the signature was actually there, but hidden from them.^ As with the general presumption in favor of a due attes- tation where all appears regular on the face of the will, so 1 See Vifright v. Sanderson, 9 P. D. 13 P. D. 102, 107, this question is dis- 149; § T,^"] post. cussed somewhat further. The signa- ' Sir J. P. Wilde (Lord Penzance) ture of the testatrix was upon the codicil in Huckvale, Goods of, L. R. I P. & D. before the witnesses came into the room. 375. In this case, the two attesting wit- They, in her presence, signed their nesses did not know whether or not the names below her signature, which was testator's signature was on • the paper so placed that they could have seen it. when they subscribed it. But the court The testatrix had called them in, but under all the circumstances decided she did not tell them that it was a tes- that it probably was there, and granted tamentary paper, nor what kind of in- a probate. See also Gwillim v. Gwillim, strument it was. They were asked to 3 Sw. & Tr. 200 ; Cooper v. Bockett, 4 sign, and they could have seen the Moo. P. C. 419. These cases seem to signature. This was held a sufficient discredit Hammond, Goods of, 3 Sw. compliance with the statute; whereas, & Tr. 90; and see Archer, Goods of, L. as it would seem, an acknowledgment R. 2 P. & D. 252. by any testator that the paper was his ' Gunstan, Goods of, 7 P. D. 102, will would not be enough unless the which seems to give a new turn to the witnesses had opportunity to see the propositions as announced by Lord Pen- signature, zance, supra. In Daintree v. Butcher, CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 324 should it be presumed that the testator signed the instru- ment first and before either of his witnesses subscribed.^ § 323. Signing or ackno'wledging before the 'Witnesses ; American Rule. — In our American States, a corresponding variance of statute expression calls for variance in interpre- tation. Subject, however, to the language and policy of each local enactment, we may say that the broad American principle requires the testator either to sign or acknowledge before his attesting witnesses. In the latter instance, is it the acknowledgment of his will or the acknowledgment of his signature that the local statute keeps in view ? To this inquiry let us direct our attention : first of all observing, that if due acknowledgment is made before the witnesses, the testator need not sign his will in their presence.^ § 324. The Same Subject ; Rule in Massachusetts, etc., 'where "Will is to be acknowledged. — In Massachusetts and various other States the language of the Statute of Frauds is essen- i Allen V. Griffin, 69 Wis. 529. See more w. Taylor, 11 Gratt. 220; 11 Phila. § 328. It should be borne well in mind that neither the English Statute of Frauds, nor an American code which copies it, requires a testator to sign in the presence of the witnesses, but only that the witnesses shall sign in the presence of the testator. See Stirling v. Stirling, 64 Md. 138. 2 There are numerous decisions which establish the principle for this country, as in England, that acknowledgment is a sufficient substitute for signing In the presence. See i Jarm. Wills, 80, Blgelow's American note, showing that this rule is at least well established in Arkansas, Georgia, Indiana, Illinois, Kentucky, Massachusetts, Missouri, Vermont, and Virginia. See Abraham V. Wilkins, 17 Ark. 292 ; Webb v. Fleming, 30 Ga. 808; Reed v. Watson, 27 Ind. 443; Crowley zi. Crowley, 80 111. 469; Sechrest v. Edwards, 4 Met. (Ky.) 163; Chase w. Kittredge, 11 Allen, 49; Cravens v. Faulconer, 28 Mo. 19; Roberts v. Welch, 46 Vt. 154; Parra- 161. This is also the rule of Connecticut, Iowa, and New Hampshire. Canada's Appeal, 47 Conn. 450; Convey's Will, 52 Iowa, 197; Welch v. Adams, 63 N. H. 344. The present New York code provides for the sufficiency of either a subscription in presence of the witnesses, or an acknowledgment to them. Lewis v. Lewis, 11 N. Y. 220. The Maryland rule conforms with the statement in the text. Stirling v. Stir- ling, 64 Md. 138. But the local codes are not found uniformly flexible in this respect. Thus the Alabama statute now, or formerly, favored only wills of personalty in this respect. Henry, Ex parte, 24 Ala. 63S. And under the New Jersey code, which the courts literally construed, the testa- tor had formerly no option when devis- ing land but to "sign"' in presence of the witnesses. Combs v. Jolly, 2 Green Ch. 625 and cases cited. But this stat- ute appears since to have been changed. Alpaugh's Will, 8 C. E. Green, 507. 339 § 324 LAW OF WILLS. [PART IIL tially followed ; and accordingly the acknowledgment pre- scribed for a testator relates simply to the will and. its attes- tation. Thus, it is held, agreeably with the English line of precedents under that statute, that a testator's acknowledg- ment in fact is sufficient, without any particular words im- porting the nature or contents of the instrument ; that any act which clearly indicates his intentional acknowledgment is sufficient, Without any language whatever ; ^ that the will may have been properly acknowledged by him, even though the attesting witnesses derive no clear idea whether the paper they subscribe is a will or some other kind of instru- ment ; ^ and that, if the execution be bona fide, it matters not whether the witnesses saw the testator's signature or not.* In all matters of this character clear and explicit acts are to be regarded, rather than mere form.* But there are States whose courts depart from the liberal policy of the English courts in this respect. Thus, in Ver- mont, while acknowledgment of the will by the testator may take the place of subscription in presence of the witnesses, the rule is, that subscribing witnesses to a will must subscribe as intending a testamentary execution ; and hence they must 1 Allison V. Allison, 46 111. 61. In Appeal, 47 Conn. 450; Flood v. Pragoff, this Illinois case the attestation clause 79 Ky. 607. was read over by the scrivener in the The presence of the witnesses is here hearing of the testator and the wit- designed as only an incidental benefit nesses; the testator then handed the and security; the object of the attesta- pen to the subscribing witnesses, and tion being that the party subscribing saw them sign as such, but uttfered not may be able to testify that the testator a word while they were present; the put his name upon the identical piece cburt held, nevertheless, that this was a of paper upon which he puts his own, sufficient acknowledgment. whatever the contents of that paper 2 A will has been repeatedly sus- may prove to be. Canada's Appeal, 47 tained in Massachusetts where no one Conn. 450. of the witnesses knew that the attesta- » gia v. Edwards, 1 6 Gray, 91 ; Dewey tion related to a will, nor what, in fact, v. Dewey, i Met. 359. was the nature of the instrument. Os- Especially does this doctrine hold born ». Cook, II Cush. 532; Hogan k. good where the witness might have Grosvenor, 10 Met. 56; Ela». Edwards, seen the signature, and it was through 16 Gray, 91 ; 13 Gray, no. So too, in no fault of the testator that he did not. Various other States, Indiana, Connecti- but rather because of his own inadver- cut, and Kentucky, for instance, wit- tence. nesses need not know the nature or * See also Allen v. Griffin, 69 Wis. contents of the paper. Turner v. Cook, 529. 36 Ind. 129; 34 Ind. i275; Canada's CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 32S know the character of the act they are to perform, and that the instrument was a will.^ In Missouri, under an enactment, which is nearly a transcript of the Statute of Charles II., it is held that a subscribing witness must know the instrument to be a last will, and must subscribe at the testator's request ; but that neither declaration nor request need be verbal.2 Finally, in South Carolina, under an act which only permitted of acknowledgment instead of signing by a liberal construction, the courts have refused to sustain a will where the testator's acknowledgment was not brought clearly home to the subscribing witness.^ § 325. The Same Subject: Rule in New fork, etc., where Signature is to be acknowledged. — In New York, on the Other hand, and in various American States, the local code contemplates an acknowledgment of the "signature," as under the English Statute of Victoria. Four essentials are prescribed by the New York legislature, one of which is the making of the subscription in the presence of each of the attesting witnesses, "or an acknowledgment of the making of the same to them." * Under this enactment it is held an insufficient acknowledgment of the testator's subscription where the paper was so folded when the witnesses signed their names that they could not see whether it was sub- scribed by him or not, the language of acknowledgment leaving them further to infer that it might have been a deed instead of a wiU.^ Similar enactments may be found in New Jersey® and some other States.^ But under statutes of this character, when the testator produces a paper bearing his personal signature, requests the witnesses to attest it, and declares it to be his last will and testament, he thereby 1 Roberts v. Welch, 46 Vt. 164, and will,— of which we shall speak pres- cases cited. ently; § 326. 2 Odenwaelder v. Schorr, 8 Mo. App. ' Lewis v. Lewis, 11 N. Y, 220. And 458. see Sisters of Charity v. Kelly, 67 N. V. 8 Tucker v. Oxner, 12 Rich. 141. 409; Baskin v. Baskin, 36 N. Y. 416; » Lewis V. Lewis, 1 1 N. Y. 220, 223. Mitchell v. MitcheU, 77 N. Y. 596. There is another specific requirement « Ludlow v. Ludlow, 35 N. J. Eq. under this statute, — that of acknowl- 480, 487. edging the instrument to be one's last ' Luper v, Werts (Or.), jSpo. § 326 LAW OF WILLS. [PART III. acknowledges his subscription, and complies as essentially with the statute as though he had signed in their presence.^ Under none of the codes, English or American, as we apprehend, is it essential to due acknowledgment that the testator who produces the will with his name upon it for their attestation, should state in so many words that this is his signature.^ § 326. Publication or Declaration that the Instrument is a ■Will. — Here let us further observe, that the later statutes of New York and New Jersey lay down expressly another essential, not usually embraced under our local wills acts : namely, that the testator shall, at the time of making or acknowledging his subscription, declare that the instrument subscribed is his last will and testament.^ Such a require- ment at once repels the theory that an attestation can be legally sufficient where the testator does not distinctly apprise his witnesses of the character of the paper which they are called in to subscribe.* It is seen that this specific declaration is not the substitute for signing in presence, but accompanies the final execution of the will under all circiim- stances. A declaration before the witnesses in express terms that the instrument is one's last will best satisfies this statute requirement ; but less than this is considered accepta- ble, provided that, in some way, the testator makes this fact known by acts or conduct, or, better still, by words.^ And 1 Baskin v. Baskin, 36 N. Y. 416. See also the California rule, as applied But cf. Mitchell v. Mitchell, 77 N. Y. in Myrick (Prob.) 40. And see a simi- 596, where the " signing in presence " lar provision in the Louisiana code con- was held insufficient. strued in Bourke v. Wilson, 38 La. An. 2 I Wms. Exrs. 88, note; 3 Curt. 172, 320. 17s; Tilden v. Tilden, 13 Gray, no; » lb.; Sisters of Charity v. Kelly, 67 Adams v. Field, zi Vt. 256; Small v. N. Y. 409. Small, 4 Greenl. 220; Denton z/. Frank- ^ "There must be some declaration lin, 9 B. Mon. 28; Green v. Grain, 12 by the testator that it was his will, and Gratt. 552; Allison v. Allison, 46 111. a communication by him to the wit- 61 ; Reed v. Watson, 27 Ind. 443; nesses that he desires them to attest it Baskin v. Baskin, supra ; Alpaugh's as such. But this need not be done by Will, 8 C. E. Green, 507. word; any act or sign by which that ' Lewis V. Lewis, 11 N. Y. 220, 223; communication can be made is enough. Ludlow V. Ludlow, 35 N. J. Eq. 480, The scrivener, in the presence of the 487; Baskin v. Baskin, 36 N, Y. 416. testator, says : ' This is the will of A. B., 342 CHAP. III.] ATTESTATION AND SUBSCRIPTION. 326 bearing in mind that the main object of such legislation is to repel fraud and establish a bona fide testament, we may and he desires you to witness it,' — the testator standing by — is a sufificient pub- lication or declaration. The form is im- material. But the witnesses must know it is the will of the testator they are witnessing, and they must witness it at his request." Mundy v. Mundy, 2 McCart. 290. And see Turnure v. Turnure, 35 N. J. Eq. 437; 44 N. J. Eq. 154. Such is the liberal construc- tion placed by New Jersey courts upon the statute in question. See also Ayres V. Ayres, 43 N. J. Eq. 565. This same general conclusion the latest New York decisions appear to have reached. In Lane v. Lane, 95 N. Y. 494, the testator was afflicted by a partial paralysis of the vocal organs when the will was executed, and could not utter words. But he made sounds intelligible to those familiar with him, and signs easy of interpretation. It was held that the statute requiring a publi- cation had been duly complied with. "As to the condition now under con- sideration," observes Danforth, J., in this case, " it is well settled that the necessary publication may be discov- ered by circumstances as well as words, and inferred from the conduct and acts of the testator, and that of the attesting witnesses in his presence, as well as established by their direct and positive evidence. Even a person both deaf and dumb may, by writing or signs, make his will and declare it." lb. The New York cases are very numerous which construe this " declaration'" phrase of the statute. See Coffin v. Coffin, 23 N. Y. I; Lewis v. Lewis, 11 N. Y. 220; Gilbert v. Knox, 52 N. Y. 125; Thompson ». Stevens, 62 N. Y. 634; numerous cases cited in 95 N. Y. 499. Cf. Mitchell v. Mitchell, 77 N. Y. 596, where there was not considered a sufficient attestation. See 3 Redf. (N. Y.) 181 ; 4 Redf. 244; I Demarest, 496. Where a testator is asked if the instrument is his will, and answers in the affirmative, this is a sufficient decla- ration. Reeve v. Crosby, 3 Redf. 74; Coffin V. Coffin, 23 N. Y. 15. See 49 N. Y. Supr. 434 ; 52 N. Y. Supr. i ; 51 N. Y. Supr. 571; Voorhis Re, 125 N. Y. 765. The declaration or publication in question by the testator need not be made at the very act of signing; it is sufficient if made on the same occasion, and as part of the sanie transaction. Collins Re, 5 Redf. 20. It may be made to the attesting witnesses separately. 2 Demarest, 309. Whether signing or acknowledgment shall precede the de- claration, or vice versa, is of no practi- cal consequence, so long as they are essentially contemporaneous. Jackson V. Jackson, 39 N. Y. 162. feut in order to satisfy the statute, the declaration before the attesting witnesses must be unequivocal, whether expressed by words or signs. It will not suffice that the witnesses have learned elsewhere, and from other sources, that the document is a will, or that they suspect such is the character of the paper. The fact must, in some manner, although no particular form of words is required, be declared by the testator in their presence, so that they may know it from him. Allen, J., in Lewis v. Lewis, 11 N. Y. 226. In New York a substantial compliance with the statutory method of publication is more readily inferred where the will is holographic (or in the testator's own handwriting) than where some one else wrote it. Beckett Re, 103 N. Y. 167. But an exhibition of the will, with the testator's signature appended, appears always indispensable to fulfil the statute. 49 N. Y. Supr. 434 ; 51 N. Y. Supr. 571. "The formalities prescribed by the statute are safeguards thrown around the testator to prevent fraud and impo- sition. To this end the witnesses should either see the testator, subscribe his 343 § 326 LAW OF WILLS. [PART III. assume that a substantial rather than a literal compliance with the statute formalities is sufficient. In this respect the enactments we have just mentioned differ materially from the English statute of i Vict. c. 26 ; for that statute dispenses with publication of the will by the testator, as a distinct act in the presence of the attesting wit- nesses.^ Nor under the statute of Car. II., which required the testator to sign, was publication concluded an essential, by the later cases, though Lord Hardwicke had in earlier times strenuously insisted to the contrary. ** Indeed, the long established doctrine, both of England and the United States, is, as we have elsewhere intimated, that, independently of an express statute requiring publication, a will may be duly exe- cuted by a testator without any formal announcement of a testamentary purpose on his part, and without a word uttered by him to show what is the nature of the instrument which witnesses are called upon to subscribe.^ On the contrary, the maker's signature anitno testandi, and his proper ac- knowledgment, such as we have described, showing that he has put his name bona fide upon the paper which he desires witnessed, where he has not signed in their presence, renders the execution valid in general without any other or more formal publication ; and the signatures of the witnesses being duly affixed, the act of execution becomes complete. Publication is the act of declaring the instrument to be the last will of the testator ; * and the words " publish " or " de- name, or he should, the signature being per Thomas, J.; Dean v. Dean, 27 Vt. ■wisible to him and to them, acknowledge 746 ; Cilley v. Cilley, 34 Me. 162; it to be his signature." Earl, J., in Smith v. Dolby, 4 Harring. 350; Wat- Mackay's Will, iioN. Y. 611,615. son v. Pipes, 32 Miss. 421 ; 12 Gratt. 1 See § 13 of this act; appendix. 239; Meurer's Will, 44 Wis. 392; * Moodie v. Reid, 7 Taunt. 361, con- Cheatham v. Hatcher, 30 Gratt. 56; tra Ross v. Ewer, 3 Atk. 156; Doe v. Hulse's Will, 52 Iowa, 662. Burdett,4 Ad. & El. 14; 9 Ad. & El. * See Bouv. Diet. "Publication." 936. Lord Hardwicke, in Ross v. Ewer, The word " declare " in the New York contended for the publication of a devise code signifies " to make known, to as- of real estate. Publication of a will of sert to others, to show forth," and this personalty was never necessary. in any manner, either by words or by ' I Jarm. Wills, 80, 81; i Wms. Exrs. acts, in writing or by signs; and to de- 84; White V. British Museum, 6 Bing. clare to a witness that the instrument 310; Osborn v. Cook, 11 Cush. 532, described was the testator's will, means 344 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 327 elare " may conveniently be distinguished from the "acknowl* edging " of which we have spoken, a term quite commonly employed in wills acts with the lesser and limited application. But a well-drawn attestation clause usually begins, " Signed, sealed, published, and declared," etc. ; and it is undoubtedly prudent and natural, even if unnecessary, for the testator to make formal publication before the witnesses at the time they attest. And if the signatures and the whole execution be properly managed, there is no reason why a scrivener or law- yer present who represents the testator should not formally announce on the latter' s behalf that the wish is his will, while the testator remains silent.^ § 327. Simultaneous Presence of 'Witnesses. — Again, the making or acknowledgment of the testator's signature is in England, under the Statute of Victoria, required to be in the simultaneous presence of the witnesses,^ whereas the old Statute of Frauds permitted the testator either to sign before one or two witnesses and acknowledge the will before the others, or to acknowledge the will before all the witnesses separately without signing in the presence of any of them.^ American codes will, on inspection, be found to vary on this point. But the Statute of Victoria proceeds to state simply that these witnesses " shall attest and shall subscribe the will in the presence of the testator " ; and while the natural conse- quence would be, that their attestation, following his making or acknowledging his signature in their simultaneous pres- ence, would be in the presence of each other as well, this, it is held, is not an indispensable condition. In other words, they must attest in the presence of the testator, but not nec- to make it at the same time distinctly Curt. 243. "Such signatures shall be known to him by some assertion, or made or acknowledged by the testator by clear assent in words or signs. 26 in the presence of hvo or more witnesses Wend. 325, approved in Lane v. Lane, present at the same time." Stat, i Vict. 95 N. Y. 498. c. 26, § 9- i Denny v. Pinney, 60 Vt. 524; » Smith ». Codron, 2 Ves. 455 ; Wright Mundy v. Mundy, 2 McCart. 290. v. Wright, 7 Bing. 457; 3 P. Wms. 2 I Jarm. WiUs, 108; Smith v. Smith, 253; Addy v. Grix, 8 Yes. 504; Ellis v. L. R. I P. & D. 143; Moore v. King, 3 Smith, i Ves. Jr. u; I Jarm. Wills, 81. 345 § 328 LAW OF WILLS. [PART III. essarily of each other.^ Many American enactments adopt the same view.^ Under several of her codes, however, the legislative impression imports that the witnesses must sub- scribe their names in presence of each other ; ^ and this is altogether the preferable course to pursue in practice,, under any circumstances, in order to make the proof for establishing the will as clear as possible. § 328. Subscription by Testator after the ■Witnesses; Ac- knowledgment by 'Witness not Acceptable. — In New York a subscription of the will by the testator after one or both of the witnesses have signed their names to it is not a due exe- cution.* Such, too, is the English rule on the subject under the Statute of Victoria ; ^ this enactment intending that the testator shall make or acknowledge his signature (not his will) before either of the witnesses signs, and, of course, while both are present. There are a few American States where a differ- ent rule of local construction appears to have been adopted ; but on the whole the preponderance of American authority discountenances the prior subscription of witnesses to a will.^ The theory here favored is, that while the statute leaves the testator free either to sign out of their presence and ac- knowledge before the witnesses or to sign in their presence at his discretion, they, on their part, have no option but to attest and subscribe in his presence, and they cannot acknowl- 1 3 Curt. 659; Webb, Goods of, Dea. It was formerly thus in Connecticut. & Sw. I ; 1 Wms. Exrs. 90. But cf. Lane's Appeal, 57 Conn. 182. Casement v. Fulton, 5 Moore P. C. 130. < Jackson v. Jackson, 39 N. Y. 153; 2 This is the rule of New York. Wil- 21 Hun, 383; 6 Dem. 347. lis». Moot, 36 N. Y. 486; Bogart Re, 62 Curt. 865; 3 Curt. 117, 648; 67 How. Pr. 313. And of New Hamp- Moore v. King, 3 Curt. 243; Charlton shire. Welch z;. Adams, 63 N. H. 344. w. Hindmarsh, 1 Sw.&Tr.433; 8 H.L. And of Arkansas. Rogers «/. Diamond, Cas. 160; i Wms. Exrs. 90. The words 13 Ark. 474. And of Massachusetts, of the act are prospective, that such Elaw. Edwards, 16 Gray, 91; Chase v. witnesses "shall attest and shall sub- Kittredge, 1 1 Allen, 49. And of Geor- scribe," etc. gia. Webb v. Fleming, 30 Ga. 808. « See this subject exhaustively exam- And of Illinois. Flinn v. Owen, 58 111. ined by Gray, J., in Chase v. Kittredge, III. And of Indiana. Johnson v. 11 Allen, 49, with English and Ameri- Johnson, 106 Ind. 475. And see Grubbs can citations; Reed v. Watson, 27 Ind. V. Marshall, Am. Dig. (Ky.) 1890. 443; Duffie v. Corridon, 40 Geo. 122. * See Vermont rule as stated in Rob- But as to presumptions, see § 322. erts V. Welch, 46 Vt. 164; 42 Vt 658. CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 328 edge a signature before him in return. Hence, it is held under the English statute that where one of the two wit- nesses subscribes his name to the will before the testator has made or acknowledged his own signature in presence of both, and the other witness then subscribes alone, it is not a legal compliance that the first witness should afterwards acknowl- edge his premature signature ; but either he must re-sub- scribe, or the will fails of its essential subscription and attestation.-' This position is reinforced in New York prac- tice, by the consideration that under the peculiar legislation of that State,2 attesting witnesses are, by this act of signing their names, to attest, not only the testator's signing or acknowledgment, but his contemporaneous declaration that it is his will.* On the whole, it does not seem to affect the legal objection that a local statute follows the language of the old Statute of Frauds rather than that of Victoria, in prescribing the for- malities of attestation.* And what we should here particu- larly observe is that witnesses are required under both of these enactments, not only to attest the will, but to subscribe it "in presence of" the testator; for which reason a subscrip- ^ Moore v. King, 3 Curt. 243. To to each other in point of time, in the pass over a signature previously made, good sense and common apprehension with a dry pen, amounts to no more of every one, and the statute prescribing than an acknowledgment, and does not the requisite formalities to a valid exe- serve as a re-subscription. Playne v. cution and authentication, plainly con- Scriven, i Rob. Eccl. 775. Nor is it an templates that the acts of the witnesses attestation and subscription for a witness shall attest the signing and declaration to add his residence after his name al- of the testator as a fact accomplished." ready subscribed on a previous day. * See Chase v. Kittredge, 1 1 Allen, Trevanion^^, 2 Rob. 311. And see 2 63. "The [Massachusetts] statute re- Curt. 865; 3 Curt. 659; Hindmarsh v. quires that the will shall ' be in writing Charlton, 8 H. L. Cas. 160. and signed by the testator,' and shall be 2 Supra, § 326. ' attested and subscribed, in the pres- ' Jackson v. Jackson, 39 N. Y. 153, ence of the testator, by three or more 161. Woodruff, J., here comments with competent witnesses.' He is not re- much force upon the danger which quired to write his signature in their would arise if the testator could keep a presence, but it is his will which they will in his possession signed by others are to attest and subscribe. It must be and then add his signature. « The his will in writing, though he need not statute," he further observes, " contem- declare it to be such. It must there- plates acts, each of which are serious fore be signed by him before it can be and important. Execution and the at- attested by the witnesses." Per Gray^ testation thereof bear a plain relation J., ib. 347 § 328 LAW OF WILLS. [part III. tion of bis name prematurely by a witness, while the testator is absent, is especially obnoxious to the requirement, and can- not be cured by an acknowledgment afterwards in the testa- tor's presence without a re-subscription.^ But if, on the other hand, the subsequent acknowledg- ment of a signature placed upon the will out of the testator's presence is not relied upon, nor a signing out of his presence at all, but the signing of witnesses and testator was, in fact, contemporaneous and fulfilled the statute in all other respects, our courts do not so readily condemn the will because the true sequence of signing happens casually to be reversed ; some witness taking up the pen out of turn and before the testator. For here, it may be said, there is but a trivial variation of formal facts in one complete and consistent trans- action ; and the policy whose aim it is to prevent the possi- bility of fraud in procuring the names of witnesses can suffer no infringement.* Moreover, it is fair to presume, in absence ^ This was the precise point settled in Chase v. Kittredge, supra. And see eases cited, ib. The Act 29 Cat. II. did not permit a witness to acknowledge a signature made in the testator's ab- sence as equivalent to a subscription in his presence. 3 Mod. 21 9; 2 P. Wms. 510; 3 P. Wms. 254. Acknowledgment by a witness is not deemed a sufficient substitute for a sub- scription in the testator's presence under the Vermont ec^j^ e^ Pope v. Pope, cited II Allen, 61. Nor in New Jersey. Den V. Milton, 7 Halst. 70; Combs v. Jolly, 2 Green Ch. 625. Nor apparently in Delaware. Rash v. Purnel, 2 Harring. 458; ib. 506. Nor in North Carolina. Ragland v. Huntingdon, I Ired. 561; 10 Ired. 561. And in Indiana the same rule is followed. Reed v. Watson, 27 Ind. 443. Also in Georgia, Duffie v- Corridon, 40 Geo, 122. Also in Rhode Island. Pawtucket v. Ballou, 15 R. I. 58. Contra, Sturdivant v, Birchett, 10 Gratt. 67; II Gratt. 220. These Vir- ginia decisions appear to be the only ones in which an acknowledgment by a witness to a will in the testator's pires- ence, of a signature affixed in his ab- sence, has been held equivalent to an attestation and subscription in his pres- ence. Whether Moale v. Mqale, 59 Md. 510, 519, is decided according to rule on this point, gu. ; for the published report does not clearly state the facl@ on which the opinion is based. 2 Miller v McNeill, 35 Penn. St. 217, is in point; the court declining to be bound by English precedents if they are less favorable. And see O'Brien v. Galagher, 25 Conn. 229; i B. Mon. 117, approved in Upchurch v. Upchurch, 16 B. Mon. 113J Vaughan v. Burford, 3 Bradf. 78. Other cases seek this result by discrediting the evidence of wit- nesses themselves on this point. 21 Hun, 383. Some American statutes are not so expressed as to require a signing " in the testator's presence." See 1 1 Allen, 61, and citations. The Pennsylvania statute, too, is a j>eculiar one, as we have seen, not requiring subscription in the testator's presence, nor even sub- scription at all. Supra, § 256; 11 Allen, 62. 348 CHAP. IIl.J ATTESTAtlOJf AND SUBSCRIPTION. § 329 of clear proof to the contrary, that the testator signed first and his witnesses afterwards, as they should and would naturally have done.^ § 329. Request to 'Witnesses to sign. — The request that witnesses should attest and subscribe one's will may be in- ferred from acts and conduct of the testator as well as his express words ; the law regarding substance rather than literal form in such matters. It is not essential, therefore, that the testator should expressly ask the subscribing witness to attest his will.2 His acts, his gestures, may signify this request ; whatever, in fact, implies his knowledge and free assent thereto.^' Indeed, the active part in procuring the witnesses and requesting them to attest and subscribe is not unfre- quently borne by some friend, near relative or professional counsel ; and if such third person acts truly for the testator in his conscious presence and with his apparent consent, the legal effect is the same as though the testator himself had spoken and directed the business.* But under such circum- stances the tacit or open conduct of the testator himself, as expressive of his knowledge and free assent or the reverse, demands the strictest scrutiny ; for nothing done by others officiating on his behalf in a clandestine, fraudulent or over- powering way, can stand as the testator's own act though done in his presence.^ "The general and regular course un- D. 172; Gilbert v. Knox, 52 N. Y. 125; doubtedly is, for the testator in the first Peck v. Cary, 27 N. Y. 9; Bund^ v. place to sign and execute the will on McKnight, 48 Ind. 502; Cheatham v. his part, and then call upon the wit- Hatcher, 30 Gratt. 56; Meurer's Will, nesses to attest the execution by sub- 44 Wis. 392; 87 Ind. 13. scribing their names." O'Brien v. *See Heath v. Cole, 15 Hun, :oo. Galagher, 25 Conn. 229. Our chapter, supra, on fraud and undue 1 Allen V. Griffin, 69 Wis. 529; § 347. influence, shows various instances where 2 Coffin V. Coffin, 23 N. Y. 9 ; 2 the officious zeal of Interested parties Bradf. 295; Higgins v. Carlton, 28 Md. in procuring a formal execution of the 117; Rogers v. Diamond, 13 Ark. 474; will has aided much in condemning it. Myridt Prob. 50 ; Allen's Will, 25 Every prudent attorney who is called Minn. 39. upon to take an active part in procur- * Allison V. Allison, 46 111. 61 ; Hutch- ing the execution of a will, takes heed ins V. Cochrane, 2 Bradf. 295; Davies, to elicit as far as possible, before the Goods of, 2 Robert. 337. witnesses, the active interest and par- * Inglesant v. Inglesant, L. R. 3 P. & ticipation of the testator himself. 349 § 33 1 LAW OF WILLS. [PART III. § 330. Attestation and Subscription distinguished. — Stat- utes which relate to the duty of subscribing wills couple usually the words " attest " and " subscribe " ; and these words should be distinguished. "To attest the publication of a paper as a last will," observed Robertson, C. J., of Ken- tucky, in 1 840, " and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. Attestation is the act of the senses ; subscription is the act of the hand ; the one is mental, the other mechanical ; and to attest a will is to know that it was published as such, and to certify' the facts required to constitute an actual and legal publication ; but to subscribe a paper published as a will, is only to write on the same paper the names of the witnesses, for the sole purpose of identifi- cation. There may be a perfect attestation, in fact, without subscription." ^ We have seen that a legal publication is now usually dispensed with, except that the testator must either sign in presence of the subscribing witnesses or make due acknowledgment instead ; but in knowing and certifying whatever is thus made requisite consists still in the attesta- tion by the witness as distinguished from the manual act of putting his name to the paper. By attestation we signify the act of witnessing in its full legal import ; by subscription, the signing of one's name, which implies that this act has been performed. § 331. What is Signing or Subscription, by the Witness. — Now, to consider more particularly the attestation and sub- scription of the will by the witness. And first we inquire A statute requirement, as in New the witnesses shall " attest " as well as York, that witnesses shall sign at the subscribe the will; for the word "at- testator's " request," receives a liberal test " means merely to act as a witness, interpretation. See Coffin v. Coffin, 23 which might in fact be done without a N. Y. 9; 5 Redf. (N. Y.) 431; Brown subscription; although in construing V. Clark, 77 N. Y. 369. such acts, we may suppose that no at- 1 Swift V. Wiley, I B. Mon. 114, 117. testation will satisfy the legal require- And see Gerrish v. Nason, 22 Me. 441 ; ment, except through the outward mark Reed v. Watson, 27 Ind. 448. of subscription. I Jarm. Wills, 109, That a formal attestation clause is un- 1 10 ; Sir C. Creswell in Charlton v. necessary (see § 346, post) is not incon- Hindmarsh, I Sw. & Tr. 439. sistent with the provision of an act that CHAP. III. J ATTESTATION AND SUBSCRIPTION. § 331 what signing or subscription on his part will satisfy the stat- ute. The precedents adduced as to the testator's proper mode of signing may be interchanged considerably with those under the present head.^ For a subscribing witness, like the testator himself, signs most appropriately by writing out his name boldly with pen and ink whenever he can do so, and yet does not sign thus invariably. There is much more reason why a testator who knows how to write should yet be found incapable of doing so unas- sisted at the execution of the will, than any of his subscribing witnesses, and hence be permitted to make his mark, use a stamp, sign by initials, or suffer his hand to be guided over the paper, with the full force and effect of a regular signa- ture animo testandi. Witnesses, being chosen from society at large, whereas the testator himself is frequently sick and in apprehension of death when his will is executed, are best chosen from the intelligent and able-bodied. Nevertheless, a witness may lawfully subscribe a will by mark^ or by initials,^ and probably by a stamp or device, especially if illiteracy or some other consistent reason may be given for it. But placing his seal to the paper is not signing, any more than in the signature of the testator.* If the witness cannot write without assistance, his hand may be guided over the paper by another.^ Initials, a signature with a guided hand, or a cross-mark around which some one else writes the name of the witness before or afterwards, — all these are modes of signing by the party himself, and not by another.® It is only needful that the witness should have intended to denote on his part the full and deliberate act of a legal attes- tation and to have performed by his own hand a subscription accordingly.^ 1 Supra, §§ 303-305. Jarai. Wills, 82. But see I Hill Ch. 2 Harrison v. Harrison, 8 Ves. 185; 265. 2 Rob. 116; Ashmore, Goods of, 3 Curt. * 3 Curt. 117. 756; Pridgen v. Pridgen, 13 Ired. 259; 6 3 Q. b. 117; Frith Re, 4 Jur. N. S. Ford V. Ford, 6 Humph. 92; Thomp- 288. son V. Davitte, 59 Ga. 472; Osborn v. « Supra, § 309. Cook, n Gush. 532; Lord v. Lord, 58 ' Even though a statute should de- jj, H. 7. ' clare that each witness shall subscribe *2 Rob. no; I Redf. Wills, 229; l "his name," signing by mark, etc., is § 333 LAW OF WILLS. [part III. § 332. The Same Subject. — The identiftcation of himself as the person actually attesting is implied in the signature of a witness, whatever shape that signature may take. Hence> the use of a fictitious name, or the misspelling, variation or contraction of one's own name, or even a signature which describes instead of naming at all, may answer the purpose of the statute, provided the genuine intention of subscribing as a witness accompanied the act.^ Nor is a marksman's sig- nature avoided by the circumstance that a wrong surname is written against it.^ § 333- Signing or Subscription InsufScient where a Complete Intent to Subscribe was Wanting, etc. — But where the signing or subscription by initials, by mark, or by whatever else falls short of a full signature, was accompanied by an incomplete intention of subscribing as a witness, the statute is not satis- fied. As in the case where one of the witnesses, through feebleness, finds himself unable to complete his signature after writing his Christian name, and a substitute is called in.^ Nor, again, is the statute satisfied where the signature relied upon, whether imperfect or in full, was placed upon the paper without the corresponding bona fide intention of not excluded by intendment. 10 Paige, 1 14. In Sperling's Goods, 3 Sw. & Tr. 85. 272, a servant to the testator, who was But the mark of the witness must be called in as one of the witnesses, wrote duly proved. Thompson v. Davitte, 59 instead of his name, " Servant to A," Ga. 472 ; I Harr. & J. 399. And it is misunderstanding the direction given to certainly unadvisable to have witnesses him; and in the haste of execution this who sign by mark, device, etc., where a informality was not noticed. Sir J. P. testator can possibly avoid it, for it in- Wilde, upon proof that the servant vites litigation. An extreme instance of meant this as a proper subscription and valid signature by mark is afforded by attestation on his part, treated the de- Ashmore, Goods of, 3 Curt. 756. Here scription as equivalent to the name, and a testatrix wrote out her own codicil, admitted the will to probate, and produced it with her signature to 2 Ashmore, Goods of, 3 Curt. 756. two of her maidservants, both of whom * Maddock, Goods of, L. R. 3 P. & D. were illiterate. At her request they I69. Here, the Statute of Victoria re- made their respective marks, and the quiring " simultaneous presence," etc., testatrix then wrote their names oppo- the second attempt at a legal execution site; but by mistake she gave to one failed from other causes; while the first of them a wrong surname. This attes- attempt was held insufficient because tation was sustained by Sir H. J. Fust, the feeble vritness had desisted from and probate of the will granted. completing his attestation. See also 1 See 2 Spinks, 57; 29 L. J. Prob. Myrick Prob. 124.' 352 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 334 subscribing as an attesting witness. As, for instance, if one should put a wrong name to the paper with the intention of making it appear that the person bearing that name, instead of the witness himself, signed it.^ Or where initials were placed on the will, not with the subscribing purpose, but merely to note alterations.^ Or generally in case of a signa- ture, fraudulently or surreptitiously procured, and affixed, in fact, without the intention of subscribing as a witness at all on the particular occasion.^ § 334. Subscription must be Animo Attestandi; noting Inter- lineations, etc. — In short, the subscription by a witness, in order to be good, must have been made freely and under- standingly, animo attestandi. One who writes his name with a different intent or under some constraint which deprives him of his free agency cannot be regarded, in the legal sense, as a subscribing witness at all.* But it does not necessarily follow that a person who signs the paper with another pur- pose in view may not have intended his signature to serve for attestation as well.^ As a safeguard against fraud or error, erasures or inter- lineations made in the instrument before signing are properly noted in the attestation by the witnesses, especially if im- portant ones ; yet the fact that such erasures or interlinea- tions are not noted at the foot of the instrument does not invalidate the probate.® 1 Pryor v. Pryor, 29 L. J. Prob. 114. testator had requested. See also Payne 2 29 L. J. Ch. 71; I Rob. 712; I z/. Payne (Ark.) 1891. Jarm. Wills, 82. See 80 Va. 293, cited Where another name is written among p. 335. those of the subscribing witnesses, it ' See Hindmarsh v. Charlton, 8 H. L. may be shown by extrinsic proof to have Cas. 160, and other cases cited § 345, been written there without any intention post, where acts not intended as a re- of attesting; and upon such proof it subscription by the witness are denied may be omitted from the probate. Shar- that effect. man Re, L. R. i P. & D. 661. * Wilson, Goods of, L. R. 1 P. & D. Two testamentary instruments were 269; Dunn V. Dunn, L. R. I P. & D. prepared and signed by a testator, all 277. on one sheet. Only the first appeared 6 Griffiths V. Griffiths, L. R. 2 P. & D. to have been attested; and it was held 300, where one witness signed "A. B., that the attestation to the first could not Executor," as signifying, further, his be construed to cover the second. 2 consent to serve in that capacity, as the Robert. 411. 8 6 Dem. 162. 353 § 335 ^*w °^ WILLS. [part III. § 335- Position of the Signature. — So long as the witness has subscribed with suitable intent, the general law insists upon no particular place of subscription : though the usual and proper place is below an attestation clause, if there be one, otherwise at the left of the testator's signature, as in deeds and other attested documents. But in determining whether persons have subscribed a will, actually and inten- tionally as attesting witnesses, the position of their signatures may prove most material in a controversy.^ If the names are written directly under an attestation clause, no difficulty arises ; but when they are placed on some strange and unusual part of the paper, the probate of the will is in great peril. Thus, it has been considered that if names are placed under a particular clause or statement, the inference seems to \i& prima facie that they were put there to give effect or to testify to the words of that clause or statement and not for attesting the whole instrument.^ But proof that a full attestation was thereby intended will rebut such a presump- tion.3 When the will contains no regular attestation clause, it is customary and proper to use some such expression as "wit- ness," "attest," "in the presence of," or "signed and ac- knowledged before," by way of briefly attesting and showing why the names are placed there. These expressions, though convenient certainly, are not indispensable ; for witnesses subscribe sufficiently, whenever they see the will executed by the testator, and proceed at once to sign their names on any part of it, with the intention of attesting it, and this whether explanatory words are placed on the paper or not.* They 1 The statute i Vict. c. 26 prescribes " G. H." Most of these parties were where the testator shall sign, but is silent dead by the time of probate, and no as to the witnesses. testimony could be had to explain the 2 Thus, in Wilson, Goods of, L. R. i circumstances of execution. The court P. & D. 269, a will was written on one concluded that the last three names, page of a foolscap sheet, and the testa- from their position, were not placed tor's name was signed at the bottom, upon the paper animo attestandi, and with " Witness A, B." at the left. The refused a probate, since one witness, second page contained a brief inventory " A. B.," could not give the witt validity, of property, under which were three ' Streatley, Goods of, P. (1891) 172. other signatures, " C. D.," " E. F.," and ♦ Roberts v. Phillips, 4 E. & B. 450. 354 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 336 need not sign near the testator, nor even near one another.^ This rule is liable, however, to statute variance ; ^ and as the foot of the will and the vicinity of the testator's own signa- ture supply the natural situation for these body-guards of an instrument which may need strong defence, there the witnesses' names are safest found. Any part of the will- which follows such signatures must be shown to have been written before they signed ; ^ and misconstruction of the motives under which they signed out of due place is the more possible when their own direct testimony is equally out of reach with that of the testator. § 336. The Same Subject: Attestation on a Different Paper. — But the attestation or subscription by witnesses must be on the same sheet of paper as that which contains the testa- tor's own signature, or else upon some paper physically con- nected with that sheet. No particular mode of connection is prescribed by law ; and hence the fastening by tape, by eyelets, by mucilage, or even by a pin, seems unobjection- able. Where papers are thus connected, the testator may 1 lb. Here witnesses signed not only provided it appear that the signatures on a different side of the sheet from the were meant to attest the requisite sig- testator, but so as to leave a consider- nature of the testator. 3 Curt. 748; I able blank between their names and Robert. 757; i Wms. Exrs. 96; Rob- his, and yet the attestation was upheld, erts v. Phillips, supra. By this we are See also Braddock, Goods of, i P. & D. to understand that this intention appears 433; Collins ^if, 5 Redf. 20. Witnesses upon all the proof. For, if no other may sign above instead of below the evidence can be produced at probate words designating attestation, without except the instrument, and the natural invalidating the will. Moale v. Cutting, import of its face raises a different view 59 Md. 510. And a will is well executed as to what the names meant as they where a person signed in presence of two stood, a careless subscription in this witnesses, his wife adding her assent respect may prove fatal to the will, thereto, though one of the witnesses, ^ In Kentucky, contrary to the usual intending to attest the will, signed his rule, attestation must be made at the end name below the vrife's expression of of the will; and any unreasonable gap assent. , Potts v. Felton, 70 Ind. 166. between the testator's signature and that And see Murray v. Murray, 39 Miss, of the witnesses may vitiate the will. 214. In Texas it is held of no impor- Soward v. Soward, i Duv. 126. The tance that witnesses sign in and not New York statute is imperative that after the attestation clause. Franks v. attesting witnesses shall sign at the end Chapman, 64 Tex. 159. of the will. 4 Dem. 124; I Dem. 256; It matters not, under the Statute of S4 N. Y. Supr. 127 ; Conway's Will, Victoria, in what part of the vnW the 124 N. Y. 455. attesting witnesses write their names, ' i No. Cas. 396; i Jarm. Wills, 84. 3SS § 337 LAW OF WILLS. [PART III. sign on one paper and the witnesses on another, provided their intent corresponded.^ But attestation or a subscription by witnesses on a piece of paper, detached and separated from the will and the testator's signature, nor affixed in his presence to the paper at the time of execution, fails of compliance with the policy of our law : we may assume it to be void, as otherwise a door must be open to much fraud and perjury. § 337- ^^° Same Subject: Attestation 'where a 'Will is written on Several Sheets. — Most acts (including the Eng- lish statute of Victoria) are silent concerning the attestation of wills which are written on several sheets. And the rule which consequently applies is that established under the Statute of Frauds : namely, that if the will be written on several sheets, whether fastened together or not, and the last sheet alone is attested in form, the whole will is well executed, provided all the sheets were in the room.^ The Statute of Frauds did not require that all the sheets should have been seen by the witnesses ; ^ but under the policy of some later codes a more positive exhibition of the whole will in their presence may be insisted upon ; and unquestionably, if the several pieces of paper are connected in their provisions and form a connected series, and are brought in this shape before the attesting witnesses at the time of their subscription, a single attestation will suffice for the whole.* It is simply the later interpolation of sheets not actually attested by them, or a subtraction, which the law still guards against under these circumstances ; ^ for execution, whether by testator or witnesses, should receive its intended scope 1 In Braddock, Goods of, I P. D. 433, Marsh v. Marsh, I Sw. & Tr. 528; Rees a codicil was pinned to the original v. Rees, L. R. 3 P. & D. 84; Ela v. Ed- will. The testator signed the codicil, wards, 16 Gray, 91; Tonnele v. Hall, and the witnesses subscribed on the 4 Comst. 140 ; Wikoff's Appeal, 15 back of the will. This, being done Penn. St. 281; Gass z/. Gass, 3 Humph. animo attestandi, was held a good sub- 278. scription. And see Collins Re, 5 Redf. ' lb. ; I Wms. Exrs. 97. 20, where the attestation clause was * Ela v. Edwards, l6 Gray, 91. pasted at the end of the will. 6 Ewen v. Franklin, Dea. & Sw. 7; " Bond V. Seawell, 3 Burr. 1773; Rees v. Rees, L. R. 3 P. & D. 84. 356 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 338 and no more. From this point of view, it is decidedly pref- erable that the sheets should be fastened together before execution at all, so that the integrity of the will may go un- disputed; and yet this fastening of parts may follow the attestation, without invalidating the disposition.^ It is a ques- tion of fact in any case, whether, under all the circumstances, the sheets as presented for probate constituted the identical will as actually and intentionally executed; and presump- tions favor the will in its integrity as found at the' testator's death.2 But if sheets were then found scattered about, instead of together ; or if they failed to correspond in sense, as constituting one distinct instrument ; or if the witnesses subscribed earlier sheets, but not the last ; in all such cases, the circumstances would bear unfavorably.^ § 338. "Signing" and" Subscribing" Equivalent Terms ; Dif- ferences as between Testator and Witnesses. — There seems to be no vital distinction between the words "signing" and "subscribing," as used by legislatures in the present connec- tion. When witnesses are required to perform the manual act of subscribing, they are called upon simply to make a valid signature in the same sense which applies to the testa- tor, and not, as a literal construction might import, to " write under" him.* But, as already observed, legislation permits a testator to "make his signature" or "acknowledge" before the wit- nesses at his option, while directing witnesses to " subscribe " in return, without any such option.^ And there remains still another distinction to observe, namely, that the testator may sign the will, either personally or " by some other person in his presence, and by his direction " ; while witnesses are di- rected to sign without any such explicit admission of a sub- stitute.8 This latter point of difference, let us now consider. 1 Jones V. Habersham, 63 Ga. 146. 3 Curt. 243; Roberts v. Phillips, 4 E. & 2 I Wms. Exrs. 97; Rees v. Rees, L. B. 450; I Wms. Exrs. 96. R. 3 P. & D. 87; cases supra. » Supra, §§ 321-325. 8 I Jann. Wills, 84; 14 P. D. 49; 6 « See 1 Vict. c. 26, § 9; also the lan- Dem. 262. guage of the various American codes on * I Jarm. Wills, 82; Moore v. King, this subject. Under the older Statute 357 § 339' LAW OF WILLS. [part in. § 339- Whether another may sign for the Subscribing Wit- ness. ^ By English construction of the Statute of Frauds, the witness must himself sign or subscribe animo attestandi, and the signature cannot be made by some other person for him.^ And the rule is the same under the present statute of Victoria. It follows that one witness cannot subscribe for another.^ But we are still to remember that one's signature by a mark or with a guided hand, is his own signature ; and one witness may in this manner help out another witness, besides signing his own name.^ In the United States this rule is not uniformly stated, and, in fact, the question is seldom raised. But the doctrine, as generally expounded, denies, like that of the English cases, that a witness to a will signs or subscribes so as to satisfy the statute without some manual act on his part by way of attes- tation.* This theory is fortified by the recognized distinction that a witness cannot make acknowledgment of his signature as a testator may;^ and by the further omission of that statute option of signing by another which the local code) like that of England, expressly confers upon a testator. But there are States in which a different view is taken, namely, that the name of an attesting witness (especially if unable to write) may be written by another, at his request, in his presence and in the presence of the testator ; ^ nor matters it that this other person is himself one of the subscribing witnesses.'^ of Frauds, which so many of our codes 496; Horton v. Johnson, 18 Geo. 396. follow, a similar difference of expression But one witness may guide the hand of is found. another, or \vrite a name about his 1 3 Curt. 243; 7 Jur. 205, 1045 ; i mark, etc., as under the English rule, Jarm. Wills, 82. In Leverington's consistently with treating the latter as Goods, II P. D. 80, a wife's signature signing for himself. 2 Bradf. 96, 392. of the name of her husband, who was * Supra, § 338. unable to write, was held an improper « Upchurch v. Upchurch, 16 B. Mon. attestation. ' 102; Jesse v. Parker, 6 Gratt. 57. 2 2 Notes Cas. 461; i Wm% Exrs. 95. T lb. In Lord w. Lord, 58 N. H. 7, ' Harrison v. Elvin, 3 Q. B. 117; i this view is adopted, but, as the writer Sw. & Tr. 153; Lewis 11. Lewis, 2 Sw. thinks, injudiciously. It is true that the &Tr. 153. statute, in requiring an attestation of a * Le Roy, Ex parte, 3 Bradf. 227; 2 will, aims to insure identity and prevent Bradf. 96, 392; Riley z;. Riley, 36 Ala. the fraudulent substitution of another 358 CHAP. III.] ATTESTATION AND SUBSCRIPTION. §340 Whenever a subscribing witness can sign for himself, being neither illiterate nor physically disabled, it seems the more objectionable that another should sign for him ; ^ and for the fellow-witness to affix such signature under any circumstances we deem a more impolitic course than for some other party to do so who might himself have served in place of the one whose name he wrote.^ § 340. Subscribing " in Presence of " the Testator, etc. ; English Rule. — Now as to signing or subscribing a will " in presence of " the testator. For in this provision our codes well harmonize, though seldom positive in declaring that witnesses shall sign in presence of one another. The English decisions as to what shall be considered "the presence" of -the tQstator at the subscription are numerous, stretching over document, besides surrounding the tes- tator with witnesses to judge of his capacity. Under the New Hampshire law, moreover, there are three witnesses to a will, so that, one signing for another, two are left, as in England and many of our States. But were a legislature to require seven witnesses to attest and subscribe a will, the court ought not by construction to reduce the number by a singly person; and this we think is really done whenever one subscribing witness is permitted to sign the name of another, without any physical par- ticipation by the latter in the act of attestation. The court in Lord v. Lord argues this point upon the general prin- ciple of agency : gui facit per alium, facit per se. " To require a person," says Foster, J., " whose name is to be written in a testamentary transaction, to hold or to touch the pen, or to do any- thing which the law does not require him to do in other cases of attestation, seems to establish a distinction vrithout a difference." Our response to this is, that attestation is and ought to be more closely guarded in testamentary trans- actions than in any other ; and the whole scope of our modern legislation indicates a public conviction and pur- pose accordingly. And we think it better for one's will to fail occasionally, because of a heedless sort of attestation, than to encourage questions of doubt- ful agency in the signing by one witness of other persons' names to be raised at the probate. It is always easy to secure two or three competent persons to sub- scribe a will in these days, so that each shall at least make his mark and act in a legal sense for himself. And the car- dinal principle in preparing all wills should be, to have the document appear bona fide and regular on its face when produced after the testator's death. 1 Riley v. Riley, 36 Ala. 496; contra, Jesse V. Parker, supra. Even though illiterate or physically disabled, it is hardly supposable that any witness might not take hold of the pen and make his mark. 1 2 For in the case thus suggested, the policy of requiring two (or three) at- testing witnesses is essentially observed at all events; and by a very slight stretch of construction, the agent might be treated as himself an attesting wit- ness who subscribes another name with bona fide intent and meaning to authen- ticate the instrument. 359 § 340 LAW OF WILLS. [PART III. a space of four centuries and commenting without a break upon the earlier and later enactments of Charles II. and Victoria, in both of which the same language is employed in this respect.^ The design of the legislature in requiring witnesses to sign in presence of the testator, was, as English authorities state, that the testator might have ocular or other bodily evidence of the identity of the instrument subscribed by them ; and this design the courts have kept steadily in view, while fixing upon the legal sense of the word "presence." ^ Consequently the testator's ability to see his witnesses sign, or at least to take personal cognizance of their act, has been regarded as the main test of compliance with the statute ; not without some free play, perhaps, with the literal expression of the statute. Thus, if a testator, after having signed and pub- lished his will, and before the witnesses affix their signatures, falls into a state of insensibility or stupor (whether temporary or permanent), the attestation is not properly made.^ Nor is the statute satisfied, when the will is attested in a secret and clandestine manner, though the testator be present in the same room.* Nor where the witnesses subscribe in the same room, or in an adjoining room with the door left open, and the testator, who had signed some time previously, was not made aware of it.^ In short, an attestation fails of legal suffi- ciency, whenever the testator, were he mentally capable of recognizing the act of subscription or not, was actually uncon- scious of it ; ^ and even though a statute should say nothing in express terms of subscribing " in his presence," we appre- hend that the simple statute requirement of a subscription and attestation in addition to the testator's signature would justify the same legal conclusion.^ 1 Cf. Statutes, Appx.; I Wms. Exrs. or acknowledge before his witnesses, in 92- assuming that he selects or requests 2 I Jarm. Wills, 86, 87. persons to be witnesses, etc., seems to 3 Right V. Price, Dougl. 241. forbid the idea that they could subscribe * Longford v. Eyre, I P. Wms. 740. and attest the will in a valid and legal ' Jenner v. Ffinch, 5 P. D. 106. manner, while he was wholly uncon- 6 I Jarm. Wills, 87. scious that they were doing so; and ' The whole scope of our wills legis- we should be reluctant to believe that lation, in requiring the testator to sign this insufficiency depended wholly upon 360 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 34I § 341. The Same Subject. — But aside from the testator's mental consciousness of the act of attestation, which is always essential, these words "in presence of" the testator are incon- sistent with his physical separation from the witnesses at the scene of their attestation. One might issue directions or receive assurances while in a room not contiguous to his witnesses ; or indeed, in these modern days, converse by wire between houses which were miles apart ; but all this would be inconsistent with a subscription in bodily presence such as might enable the testator to keep in view the identity of the paper so subscribed. Nor is it certain that the policy of such legislation regards the testator's convenience alone on the occasion, as English authorities have stated ; for is not that " presence " equally desirable, from the witness's point of view, in order that the latter may judge of the testator's condition, of the identity of the instrument he is asked to sign, and of the bona fides of the whole transaction "i If at- testing in the testator's absence, how lightly is his own solemn responsibility taken up, and how readily does he permit his position as a witness to be compromised. Contiguity, therefore, with an uninterrupted view between testator and subscribing witness is deemed the main element to a physical signing in the testator's presence. The sub- scription is not invalidated by not having been performed in the same room or even the same house, provided it took place within the testator's range of vision. As in a case where witnesses left the testator, who lay in bed in one room, and subscribed their names at a table in another- room opposite, and in sight, through a passage, the doors between being thrown open.^ Or where a lobby intervened, but the testator might have seen the subscription made in a gallery, through the lobby and a broken glass window.^ Or where a testatrix sat in her carriage, and the will was attested in the attorney's office, but not out of her sight.^ In all such cases, the attes- tation is held good on the theory that the testator might at those words "in presence of" the tes- ' Casson v. Dade, i M. & S. 294; I tator. Bro. C. C. 99; Norton v. Bazett, I 1 Davy V. Smith, 3 Salk. 395. Deane, 259. 2 Shires v. Glasscock, 2 Salk. 688, 361 § 341 LAW OF WILLS. • [part IIL least have seen the signing, considering his position and the state of his health at the time of the transaction ; and it is deemed immaterial that he did not see, when he might have done so ; for the act being done in his presence, could not have been vitiated by his turning or looking away.^ On the other hand, no mere contiguity to the witnesses will constitute a " presence " within the, act, if the testator's position be such that he cannot possibly see them sign. As where, for instance, he occupies his bed-chamber, and the witnesses subscribe in an outer hall where they are necessa^ rily hidden from his sight by an intervening flight of stairs.* Or where his position, which he cannot readily change, is such that the witnesses are in reality out of his sight.* If the subscription be made in an adjoining room with the door closed, it is not enough that the testator might have seen it had the door stood open ; nor even will a subscription in the room he occupies suffice, provided that from his actual posi- tion he could not have seen it done. But unless some mate- rial obstacle obstructs the vision, we here suppose that the tes- tator is sick and feeble, propped up in bed, or requiring some aid in order to bring him into a right posture, in which case, of course, his disability is an important factor in determining whether or not he might have seen his witnesses subscribei Thus the will of one who lay in bed with the curtains drawn while the will was attested in front of him, was admitted to probate because he might easily have seen the act by pushing the curtain aside ; * but that of another was refused probate under like circumstances upon the distinction that the testatrix was not only too weak to have opened the cur- tain herself, but lay helplessly with her back to the wit- 1 I Jarm. Wills, 87, 88; 1 Wms. s Wright v. Manifold, i M. & S. 29. Exrs. 92, 93. And see i Jarm. 88; i Deane, 259; i 2 Eccleston v. Petty, Carth. 79. Curt. 914; 2 Curt. 395; 3 Curt. .118; i Where the subscription takes place Wms, Exrs. 92. in a different room from that occupied * Newton v. Clarke, 2 Curt. 320. by the testator, it must be shown that 'Tribe v. Tribe, i Robert. 775; i his position was such that he might Wms. Exrs. 92. have seen the act. Norton v. Bazett, Dea. & Sw. 259; 3 Curt. 118. CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 342 In fine, the true test as asserted in the English cases is; not whether the testator saw the witnesses sign, but whether he might have seen them sign, considering his mental and physical condition, and his posture at the time of their sub- scription ;^ and the result of the cases is to enjoin it carefully upon all those who are charged with the direction of such business, where the testator himself is weak and unable to move about freely, not to peril the validity of the will by any false delicacy about bringing witnesses and the sick person close together. § 34^- Subscribing " in Presence of " the Testator, etc. ; Amer- ican Rule. — Though the judiciary of each State may construe this requirement of the testator's presence more or less lightly, the American rule adopts in the main the distinctions of the English cases. The policy of such enactments is un- derstood in the same sense : namely, to prevent substitution and fraud upon the testator. And an attestation made in the same room with the testator is treated as prima, facie aii attestation made in his presence ; while an attestation made in another room is prima facie not made in his presence; proof of the actual facts being admissible in either case to establish the contrary.^ Where, therefore, the witnesses sign the will in an adjoin- ing room, out of the testator's sight as he lies on his bed, the statute fails of compliance, although the door between stands partly open ; ^ nor, as some extreme cases hold, does it even 1 Trinnel's Goods, li Jur. N. S. 248; of England, makes.it unessential . that Kellick Re, 3 Sw. & Tr. 578. If the witnesses should sign "in presence of" witnesses attest out of the testator's one another. 5«. Dow- to -testify at the probate after releasing sing, 2 Str. 1253, 1255; Warren *. Bax- his interest. Cases supra. But the ec- ter, 48 Me. 193J Morton ». Ingram, 11 clesiastical courts appear to have favored Ired. 368. the opposite conclusion, i Jarm. Wills, 2 See Lowe v. Joliffe, i W. Bl. 365; supra; Doe v. Hetsey, 4 Burn. Ecc. L. Goodtitle v. Welford, Dougl. 139; also 27. comments of Judge Redfield in i Redf. * Acts 25 Geo. II. c. 6; i Vict. c. 26, Wills, 256, 257J I Janft. Wills, 70. §§ 14, rs; Mass. Pub.'Stats. c. 1)27, § 3; Mr. Jarman appears to be right in im- Jackson v. Denniston, 4 Johns. 311; pugning the general theory that the post, § 357. " credibility " of a witness refers to any * i Jarm. Wills, n i, argues with force other period than the date of execution, against the theory that Act i Vict. c. lb. Nevertheless, however iliconsist- ^6, § 14, dispenses with competent wit- ently in principle, common-law courts nesses in any such sense as this, came to recognize the right of a legatee 374 CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 353 defect of understanding in one so young, this presumption may be removed by proof to the contrary.^ A minor above fourteen is prima facie competent.^ One who does not un- derstand the language in which the will is written is dis- qualified under the Roman, French and Spanish law, and in some American codes.^ Apart from considerations of marital interest presently to be noticed, our common law does not appear to raise any sexual barrier to the attestation act. But some of our local codes are peculiar in this respect. Thus in Louisiana women are made absolutely incapable of witnessing testaments, though they are held competent to prove a testator's hand- writing when that fact has to be established on the probate.* § 353- Cisqualification of Interest in a Subscribing Witness. — But the disqualification of interest is that which courts have chiefly to consider where the competency of a sub- scribing witness is drawn in question. One who has an immediate beneficial interest in a will is at the common law disqualified from becoming a subscribing witness thereto : he is neither "competent" nor "credible," in the sense of the statute.^ This policy extends to those beneficially interested who are not subscribing witnesses ; and such persons cannot testify to the execution of a will.* The interest, to be disqualifying, must be, however, a present, certain and vested interest.'' That one's mother or 1 I Redf. Wills, 253, note; I Greenl. Frink v. Pond, 46 N. H. 125; Lord v. Evid. § 367; Carlton v. Carlton, 40 Lord, 58 N. H. 7. N. H. 14. . ^ Miltenberger v. Miltenberger, 78 2 Jonesw.Tebbetts, 57 Me. 572. The Mo. 27. See Mercer v. Mackin, 14 rule here applied to infants is the usual Bush, 434. one concerning the testimony of such A devisee under a holograph will is persons. Schoul. Dom. Rel. 3d Ed. competent to prove it; for such a will § 3g8. requires no attesting witness. Hamp- 8 Dauterive's Succession, 39 La. Ann. ton v. Hardin, 88 N. C. 592. 1092. See ib. as to deaf persons, where ' i Greenl. Evid. § 390; 4 Stark, a will is dictated. Ev. 745; Jones v. Tebbetts, 57 Me. * Roth's Succession, 31 La. Ann. 572; Hawes z/. Humphrey, 9 Pick. 350; 315. Lord V. Lord, 58 N. H. 7. And as to 6 Hindson v. Kersey, i Burr. 97; a married woman's will, see Camp v. Haven v. HUKard, 23 Pick. 10; Spar- Stark, 81* Penn. St. 235. hawk V. Sparhawk, 10 Allen, 155; 375 § 354 LAW OF WILLS, [part iil father is named as principal devisee does not render a wit- ness incompetent to subscribe, even though the latter receive a gift besides at the date of execution. ^ An heir at law, who is disinherited, is likewise a competent witness in support of the will which disinherits him ; so, too, when he takes a legacy under the will of less value than his interest would have been without the will.^ And, generally speaking, a wit- ness may be produced to testify against his interest with- out legal disqualification.^ If it stand indifferent to the witnesses whether the will under which they are legatees and which they have subscribed be valid or not, they are pronounced credible.* § 354. The Same Subject: Judges, Executors, Incorporators, etc. — A judge of probate or other judicial officer is a com- petent subscribing witness to a will ; at all events, where the issues of probate may be tried before some one else.^ Nor is an executor, according to current opinion, incompetent, even though by the American rule his right to commissions and compensation gives him a sort of pecuniary interest under the will;^ while the English statute of Victoria expressly declares (in a country where such trusts have always been esteemed voluntary and gratuitous) that an executor shall be an admissible witness.^ Nevertheless, we regard an executor who intends to accept the trust as a most undesirable person for subscribing witness, and one whose bias in a close contest might break down the will; and some States appear to 1 Nash V. Reed, 46 Me. 168; Allen v. Jones, I Cal. 488. See also 79 Me. V. Allen, 2 Overt. 172. And see Old v. 25; supra, § 23. Old, 4 Dev. 500. 6 Wynian v. Symmes, 10 Allen, 153; * Smalley v. Smalley, 70 Me. 545; Reeve v. Crosby, 3 Redf. 74; Stewart Sparhawk v. Sparhawk, 10 Allen, 155; v. Harriman, 56 N. H. 25; Murphy v. § 358- Fogg, 7 Fla. 292; Richardson v. Rich- * Clark V. Vorce, 19 Wend. 232; i ardson, 35 Vt. 238. Our local codes Greenl. Evid. § 410. are frequently explicit on this subject. « Bac. Abr. Wills, D. Or " disinter- See i Jarm. Wills, 73, Bigelow's note, ested." 70 Me. 548. ' Stat, i Vict. c. 26, § 17. An execu- 5 McLean v. Barnard, i Root, 462; tor who is entitled to a legacy in that 2 Root, 232. Statutes are sometimes character may be a competent witness specific oh this point. And see as to if he releases his legacy. 2 Curt. 72; the alcade under Mexican law, Panaud i Wms. Exrs. 345. And see Bettison v, Bromley, 12 East, 250. CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 355 regard an executor as competent only when, having declined or renounced the trust, he is clearly disinterested.^ An original corporator and member of a charitable corpora- tion is a competent witness to a will which gives property to the corporation.^ And so may be an inhabitant of some town or municipal corporation to which property is devised or bequeathed for educational purposes.^ For here the indi- vidual's beneficial interest is deemed too remote to disqualify him from testifying in favor of the will* A bequest to a person strictly in trust for another is not to be pronounced a direct beneficial interest such as to disqualify him.^ § 355- "^^ Same Subject : whether Husband and VTife are Competent for One Another. — The wife, according to the bet- ter opinion, should not be witness to her husband's will, nor the husband to his wife's will ; a rule which conforms to the old law of coverture.® And where a devise or bequest is given to either the husband or wife of an attesting witness, such witness is usually to be deemed a disqualified party.' In view, however, of our later marital policy, more favorable to the independence of spouses than formerly, it is well for the statute of wills to be more precise on this point, and the Statute of Victoria furnishes an example accordingly.® 1 See Snyder v. Bull, 17 Penn. St. a stockholder therein would be disquali- S4; Tucker v. Tucker, 5 Ired. 161; fied by reason of interest. Though not Schoul. Exrs. § 76; Jones v. Larrabee, where the aim of the bequest is charita- 47Me. 474; Burrittz/. Silliman, 13N.Y. ble. UaTSton £x parte, jg Me. 2^. 93. In Scotland, where the executor * Creswell v. Creswell, L. R. 6 Eq. was one of the attesting witnesses, it 69. And see Loring v. Park, 7 Gray, was held that the testament was null 42. But as to making the trustee under as to his appointment, though it would the will a competent witness, note what stand in other respects. Tait Evid. is said as to executors, supra. 84. * Pease v. AUis, no Mass. 157; An executor may release his pecuni- Dickinson v. Dickinson, 61 Penn. St. ary interest under the will and stand the 401. better qualified as a witness. 3 Redf. ' Sullivan v. Sullivan, 106 Mass. 474; 74. Winslow V. Kimball, 25 Me. 493; I 2 Quinn v. Shields, 62 Iowa, 129. Johns. Cas. 163. Confy-a, Hawkins v. ' Cornwell v. Isham, I Day, 35; War- Hawkins, 54 Iowa, 443; 70 Iowa, 343. ren v. Baxter, 48 Me. 193; Loring v. This rule is liable, of course, to be af- Park, 7 Gray, 42; l N. H. 273; Jones fected by the latest "married women's z/. Habersham, 63 Ga. 146; 79 Me. 25. legislation " in any State. SeeGiddings * But if the will were in ifavor of some v. Turgeon, 58 Vt. 106. private business corporation, jmW,? that " See Act i Vict. c. 26, § 15, which 377 § 357 LAW OF WILLS. [part in. § 356. Creditor or Remote Beneficiary, whether a Competent Subscribing Witness. — Whether a creditor must be treated as an incompetent subscribing witness to a will by reason of his direct interest under certain circumstances, is not clearly- determined. But the policy of English and American legis- lation prevents their disqualification even where the will makes an express charge of real or personal property to secure the debt.^ Persons to be remotely benefited under a will are not readily to be pronounced incompetent witnesses, so as to imperil a will ; and where there is a sufficiency of witnesses, after leaving out one of doubtful competency, the will, of course, is to be upheld.^ § 357. Legacies or Devises to Attesting "Witnesses annulled by Statute. — We have observed that the hardship of break- ing down a will, through some inadvertent selection of a witness who himself might have been quite unconscious of his interest, led common-law courts to avoid the worst mis- chief by permitting such a witness to release his interest at the probate, and so render himself competent.^ But this permission, which was not clearly conceded by all tribunals, must have been liable to great abuse ; it was accorded against legal consistency ; and the very option to release invested such a witness with such undue power for destroying or saving the will at his own choice, that sinister, secret, and corrupt bargains for purchasing his good will must have fol- lowed. The English Parliament soon adopted another expe- dient for avoiding the sacrifice of an entire will on the one hand, and the arbitrary choice of an interested witness on the other ; namely, to annul all beneficial devises and legacies to attesting witnesses, and render such persons competent to all annuls all gifts to the husband or wife Similar legislation may be found in of an attesting witness. Massachusetts, New York, New Jersey, 1 The English statute 25 Geo. II. t. and many other American Sta,tes. I 6, § 2, expressly provides that creditors Jarm. Wills, 71, 73, aiid Bigelow's note, whose debts are charged by a will or Stimson's Am. Stat. Law, § 2648. codicil shall, nevertheless, be good sub- ^ See Faux Re, W. N. 249 (l scribing witnesses. And this provision ^ Supra, § 351. is confirmed and extended by Act I Vict. c. 26, § 16. CHAP. III.] ATTESTATION AND SUBSCRIPTION. § 358 intents in spite of a testator's heedlessness or their own. This doctrine, which was first embodied in Stat. 25 Geo. II. c. 6, has been extended and firmly established by the Act I Vict. c. 26.^ In most parts of the United States similar legislation may be found, and witnesses to a will are rendered incapable of taking any beneficial interest under the will, unless there be the statutory number of competent witnesses without them.^ Harsh as such a policy may be thought, it appears to work well ; more care is taken than formerly in the attestation of wills, and the rules of evidence are greatly simplified. But in a few American States a legatee is rendered com- petent, by express legislation, if he release or refuse to accept his legacy.^ § 358. Competency of Interested Witnesses ; Miscellaneous Legislation ; Devise to Heir, etc. — In Maryland, under a late statute, an interested witness may be considered competent to subscribe or sustain a will.* And there are other recent acts which expressly provide that a will shall not be void on account of the incompetency of the attesting witnesses.^ 1 See I Jarm. Wills, 71, 72; Appx. various other States, the share which post. Section 15 of the act of Victoria such a witness would have had in the annuls every beneficial devise, , legacy, estate had the will not been made to interest, gift, etc., to any attesting wit- him is expressly saved to him. (See ness, or the wife or husband of such next section.) A legatee dying before witness. The annulment applies of the testator is also pronounced a. course only to the instrument actually legal witness in some of our codes, attested, and not so as to invalidate And see 6 Mackey 98, as to the one's interest under another will or District of Columbia; and in general, codicil. Tempest ». Tempest, 2 Kay Stimson's Am. Stat. Law, § 2650. & J. 635; Denne v. Wood, 4 L. J. 57. Where two witnesses would suffice, and Under this English statute, a trustee three persons actually subscribe, one of who is a solicitor, loses a right given him whom proves a devisee named in the under the will to charge for professional will, it is fair to treat such a devisee's sig- services if he attests. Burgess v. Vini- nature as superfluous. See 103 N. C. 40. come, 31 Ch. D. 665; 34 Ch. D. 77; 3 gee statutes of New Jersey, Missouri, 40 Ch. D. I. etc., referred to in i Jarm. Wills, 71, 2 See I Jarm. Wills, 71, Bigelow's Bigelow's note; Stimson's Am. Stat, note. New Hampshire, Massachusetts, Law, § 2650; Nixon v. Armstrong, 38 Connecticut, New York, Virginia, Ken- Tex. 296. tucky, Mississippi, and most of the north- * Estep v. Morris, 38 Md. 417; western States have adopted provisions Kumpe v. Coons, 63 Ala. 448. of this character. In New York and * See the peculiar and somewhat 379 § 338 LAW OF WILLS. [part III. In nearly all of our United States a devise or bequest to a person who would inherit under the laws of distribution does not invalidate the will or render such person incompetent as a witness ; but the devise or bequest is good only so far as it does not exceed what he would have taken by inheritance in the event of intestacy.^ vague expression of I Vict. c. 26, §14- Recent statutes which extend the competency of interested witnesses and original parties to testify in civil and criminal proceedings, often make ex- press exception of the attesting wit- nesses to a will or codicil; for here peculiar considerations are found to 380 apply. Mass. Gen. Stats, c. 131, §§ 13, 15; McKeen v. Frost, 46 Me. 248; Miltenberger v. Miltenberger, 78 Mo. 27. 1 This seems to be the purport of such codes, though the language some- what varies. Stimson's Am. Stat. Law, §2651. And see ja/ra, § 23; Maxwell V. Hill (Tenn.) 1891. CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 360 CHAPTER IV. NUNCUPATIVE OR ORAL WILLS. § 359- 'W'illB and Codicils usually require a Formal Execution; Exceptions stated ; Unattested 'Wills, Oral 'Wills, etc. — Wills, under the policy of our modern legislation, English and American, are generally to be executed with all the formal- ities of written expression, signature, and attestation, which our preceding chapters have set forth in detail ; and under the term " wills " in this connection are included codicils and every sort of testamentary disposition. But, as we have shown, there are various American codes which dispense to some extent with the formal attestation of witnesses ; ^ and holograph wills, or those written out by the testator's own hand, are peculiarly favored in this respect, especially when the disposition relates to personal property only.2 But wills of this character, though informally exe- cuted in a certain sense, must not only be expressed in writing, but, as the code itself declares, receive the testator's signature to authenticate it. There remains, however, for consideration a class of wills still more informal in character, and in fact founded u{)on a testamentary disposition purely oral, though afterwards committed to writing. These oral or unwritten wills, properly styled, where non-execution is in the broadest sense an incident, let us now proceed to con- sider. § 360. Oral or Nuncupative 'Will ; Definition ; Such 'Wills rarely permitted. — This oral will is usually designated at our law by the term "nuncupative," which we borrow, like the testament of this character, from the Roman civilians. A nuncupative will is an oral will declared by a testator before witnesses, and afterwards reduced to writing. The law sup- 1 Supra, § 254. « Supra, § 255. 381 5 3^1 LAW OF WILLS. [PART HI. poses such a will to be made in extremis or under cir- cumstances fairly equivalent, such as prevented him from executing a more formal one.^ We shall see presently, how- ever, that the instances ^re very rare w^here testaments of this description are by our modern English-inspired codes allowed any legal validity, thos,e exceptions being specified by the local statute itself. § 361. History of Nuncupative Wills prior to the Statute of Frauds. — In the ancient days of pur common law, and before the general cultivation of letters, the doctrine of nun- cupative wills appears to have maintained a firm footing. Derived from the Roman jurisprudence originally, it was incorporated into our system, and acted upon propria vigore, long before the Statute of Frauds and the Statute of Wills. According to the Institutes of Justinian, if one wished to dispose of his effects by what our common law denominates a nuncupative or unwritten testament, he might do so by a verbal declaration in the presence of seven witnesses.^ No immediate reduction to writing of such a testament appears to have been necessary ; but the disposition might rest in parol proof until after the testator's death ; though such was not always the case. It was sufficient if the witnesses, within a reasonable time after the death of the testator, went before a magistrate, and gave an account of what took place ; a formal statement being then drawn up and signed, the proof of the will was perpetuated.* 1 4 Kent, Com. 576; 2 Bl. Com. 500; either orally declared to the assistants Bouvier Diet. " Nuncupative Will " ; the wishes which were to be executed supra, § 6. after his death, or produced a written ^ Just. Inst. lib. 2, tit. 10, § 14. document in which his wishes were em- Although the " nuncupative will " is, bodied." Maine's Ancient Law, 212. by our time-honored phrase, the unwrit- The Louisiana code, as we shall pres- ten will above described, we may well ently see, conforms quite closely to such question whether the K«»^«/a/jo of the a theory of nuncupative wills; stating civilians was necessarily confined to them such because they were openly such wills. The essence of this nuncu- declared, in distinction from wills secretly patio seems to have consisted rather in expressed. ' an oral publication of what had been ' See Prince v. Hazleton, 20 John?, written or unwritten. "In this latter 519. passage of the proceeding the testator 382 CHAP. 1 V.J NUNCUPATIVE OK ORAL WILLS. § S^I Such, in general substance, was the nuncupative will of the common law, as Swinburne described it, with the require- ment omitted of so many witnesses ; and yet admitting, of a purely verbal disposition untily from the lips of a witness or witnesses sufficient for proving it, the will was put into writing and properly shaped for permanent preservation and record. The testator uttered his wishes ; it did not follow, however, that he inspected what was afterwards written out, but usually the reverse, as his death speedily followed. " In making a nuncupative will," says Swinburne, "this is chiefly to be observed, that the testator do name his executor, and declare his mind by word of mouth, without writing before witnesses ; no precise form of words is required, so that the testator's meaning do appear."^ And again he observes : "A nuncupative testament, is when the testator, without any writing, doth declare his will before a sufficient number of witnesses. It is called nuncupative, because, when a man makes such a testament, he must name his executor, and declare his whole mind before witnesses." ^ Perkins, in his book which was published under Henry VIII., still earlier,^ defines a nuncupative will, as properly made when the tes- tator " lieth languishing for fear of sudden death, dareth not to stay the writing of his testament, and, therefore, he prayeth his curate and others, his neighbors, to bear witness of his last will, and declareth by word what is his last will." * Whether in the days of our English law, nuncupative wills were necessarily to be pronounced invalid, unless made in extremis, or when one was sick and in fear of death, is uncer- tain; probably before the fifteenth century they were not, nor perhaps were they even as late as the enlightened times 1 Swinb. pt. 4, § 29, p. 350. ' Swinburne's treatise was published in 2 Swinb. pt. I, § 12, p. 58. That the the time of James I. naming of an executor is not an essen- * Perkins, § 476. Perhaps this de- tial to any will in modern times, nor a scribes the actual instance or occasion total disposition of the estate, see when nuncupative wills are desirable, supra, § 297; Hubbard v. Hubbard, 8 and the safe mode of making them, N. Y. 202. The term " nuncupative " rather than undertaking to define the is appropriate because of this declaration true limits of such testaments, before witnesses. Supra, § 6. § 363 LAW OF WILLS. [PART III. of Henry VIII., Elizabeth, and the first James. But by the latter date nuncupative wills were certainly confined in prac- tice to extreme cases, as both Perkins and Swinburne inti- mate.i Under the Roman law, with its strong array of surrounding witnesses, sickness and last extremity made no indispensable condition of such testaments ; probably, be- cause the safeguards against fraud were sufficient without it.^ § 362. Nuncupative 'Wills affected Personal but not Real Estate. — The nuncupative will, under such conditions, was as efficacious as any testament in writing, so far as related to the testator's personal estate alone. But lands, tenements and hereditaments, being the subject of devise by force only of the statutes of Henry VIII. (32 and 34 Hen. VIII.), a nuncupative devise must have been of too informal a char- acter to operate.^ § 363. Restraints upon Nuncupative Wills under the Statute of Frauds. — In the twenty-eighth year of Charles II., a case was tried which involved a foul conspiracy to set up a nuncu- pative will. A man advanced in years married a young woman whose conduct during his life exposed her to scandal. After his death, she set up as against a written will he had made three years before, a nuncupative testament, said to have been made by him while in extremis before nine wit- nesses. The court of probate rejected this later testament, 1 Swinburne observes : " This kind of ways bad at common law unless in testament is commonly made when the extremis, they had by Swinburne's time testator is very sick, weak, and past all become confined practically to such in- hope of recovery." Swinb. pt. j, § 12, stances; a doctrine which the English p. 58. Woodworth, J., in Prince v. law writers had ever since supported. Hazleton, 20 Johns. 519, considers And see 42 N. J. Eq. 625. the impression erroneous that our law ^ Opinion of Woodworth, J., in Prince differed at all from the civil, in making v. Hazleton, supra, where, however, the it of the essence of a nuncupative will precaution of requiring seven witnesses that it be made in extremis. But the is not taken sufficiently into account, language of Chancellor Kent (ib. 511), nor the comparative illiteracy of Romans, which gives a more literal import to the "of 'ii^ peculiarity of their social insti- expressions of Swinburne and Perkins tutions. in the passages above cited, concludes ° Supra, §§ 15, 253. And see § 365, that while unwritten wills were not al- /"•'A for 'uie of American codes. CHAP. IV.] NUNCUPATIVE OS. ORAL WILLS. § 363 and on appeal to the delegates and a trial held at the King's Bench it appeared in proof that most of the witnesses for the nuncupative will were perjured and that the widow her- self was guilty of subornation of perjury. Lord Chancellor Nottingham said on this occasion that he hoped " to see one day a law, that no written will should ever be revoked but by writing." ^ Lord Nottingham, it is known, bore a conspicuous part in procuring the passage of the Statute of Frauds in Parlia- ment, which famous enactment bears the date of 29 Charles II. (1676-77), or the year following.^ The frauds and perjuries to which nuncupative wills were liable made one of the objects which that legislation sought to correct. Accordingly, such testaments were at once laid under strong restrictions which English policy has never since taken off. And the only real and lasting exception to these restrictions was declared in favor of " any soldier being in actual military service, or any mariner being at sea " ; the British army and navy being thus secured in the full benefit of that testa- mentary privilege which the Roman soldier had enjoyed.^ " For prevention of fraudulent practices in setting up nun- cupative wills, which have been the occasion of much per- jury," the Statute of Frauds prescribed as follows, with the reservation, above noticed, in favor of soldiers and mari- ners. No nuncupative will shall be good where the estate bequeathed exceeds "the value of thirty pounds, (i) unless it is proved by the oath of three witnesses at least who were present at the making thereof; (2) nor unless it is proved that the testator at the time bade the persons present, or some of them, to bear witness that such was his will, or to that efifect ; (3) nor unless such will was made in the time of the testator's last sickness, and in his dwelling house, or where he had resided for at least ten days next before mak- ing the will, except where he was surprised or taken sick 1 Coles V. Mordaunt, 4 Ves. 196, note, of legislation, see 18 Am. Law Rev. 442 ^ Concerning the origin of that statute, ( 1 884) . and the hand taken by Lord Hale and » Act 29 Car. II. §§ 19-23. others in shaping so renowned a piece § 365 LAW OF WILLS. [PART III. while away from his own home and died before he returned ; (4) nor generally ^ unless the substance of the testimony to prove such a will was committed to writing within six days after the will was made. The same statute introduced new safeguards against the hasty probate of nuncupative wills ; and proceeded to declare that no written will should be repealed or altered by oral words not reduced into a written shape during the testator's life and allowed by him before three witnesses at least.^ § 364. Nuncupative Wills virtually abolished by Statute of Victoria, except as to Soldiers and Mariners. — Even under these restraints, the nuncupative will has become obnoxious to modern policy, and since 1837 has been virtually abolished in England. For now by the new Statute of Wills (i Vict, c. 26) nuncupative wills, and indeed testaments of all kinds which are informally executed, are altogether invalid and 01! no legal efEect.^ But the old exception in favor of soldiers and mariners has by this act been expressly retained ; * and that exception, l^t us constantly remember, applies, like the old nuncupative disposition itself in all other instances, to wills of personal property only ; since at our Anglo-Saxon law, land cannot be devised except by some testamentary writing duly signed and attested before the requisite number of witnesses. § 365. American Legislation and Policy concerning Nuncu- pative 'Wills. — Our brief description of the English law on this subject shows that two modern periods of nuncupative jurisprudence are of peculiar interest : I. That of 1677-1837, covered by writers like Blackstone, when soldiers and mar- iners in service might make such wills freely, but no other 1 lb. § 20. " After six months passed * "Any soldier being in actual mili- after the speaking of the pretended tes- tary service, or any mariner or seaman tamentary words" (says the statute), being at sea, may dispose of his personal " no testimony shall be received to estate as he might have done before the prove," etc., except as stated above. making of this act." Act I Vict. c. 26, 2 Stat. 29 Car. II. §§ 19-23. §11. 8 Act I Vict. c. 26 (1837); ' Wms. Exrs. 116; Appx. /orf. 386 CHAP. IV.J NUNCUPATIVE OR ORAL WILLS. § 365 persons, save under the peculiar restraints imposed by the Statute of Frauds. II. That subsequent to 1837, when none are permitted to make them at all except the soldiers and mariners as above stated. Now in examining the American codes on this subject we find, naturally enough, enactments in many of the older States which are based upon the Statute of Frauds, and incorporate most of the restrictions in substance of this first period. But, to take the latest codes and the enactments now in force on this subject, the general invalidity of nuncupative wills, except as to soldiers and mariners, and of all testaments which are not properly written out, signed, and attested as the local act directs, or, in other words, the policy of the sec- ond period, is found a prominent trait ; New York, Massa- chusetts, and Virginia being among the States which conform closely to the latest English policy on the subject.^ But while American policy at the present day discourages such testaments, there are great variations of principle under which they are permitted in the several States. Many of our local codes, embracing every quarter of the Union, test the validity of the nuncupative will by the amount to be dis- posed of ; the limit ranging usually from ;^30 to 1^500, while in California and Nevada $1000 may be thus bequeathed.^ 1 When the leading American case of In Massachusetts, it is provided that Prince v. Hazleton (20 Johns. 503) was " a soldier in actual military service, or decided iu the New York Court of Er- a mariner at sea, may dispose of his rors in 1822, the law of New York on estate by a nuncupative will"; and the this subject was literally that of the context shows plainly that nuncupative statute of Charles II., from which it was or informally executed wills are in other taken. That case shows plainly the instances of no validity. Mass. Pub. disfavor with which Chancellor Kent Stat. t. 127, §§ 6, 7. and other leading jurists of that State Recent codes of Virginia, West Vir- regarded the setting up of such testa- ginia, Minnesota, Rhpde Island, Ken- ments as made by those who were tucky, Mjnn'esota and Oregon confine neither soldiers nor sailors. The law the right'of idaking nuncupative wills to was afterwards changed, and now con- soldiers in active service and mariners forms to that of England under the at sea. And see Stimson's Am. Stat, statute of Victoria. No nuncupative Law, § 2700; Tuinei, jEx parte, 24 S. C. or unwritten will is valid, "unless 211. made by a soldier while in actual mil- 2 gee local enactments collected in I itary service, or by a mariner while at Jarm. Wills, 97, Bigelow's note; 3jarm. sea." Hubbard v. Hubbard, 8 N. Y. Wills, 755, Randolph's and Talcott's 196; 2 Rev. Stat. N. Y. p. 60, § 22. notes. This limitation of value, so as to § 36s LAW OF WILLS. [part III. California, again, adds to the privileged class of soldiers and sailors persons who are expecting immediate death from injuries received the same day.^ Nor should we overlook the moulding influences of Continental Europe in such States as Louisiana, under whose code the nuncupative testament sig- nifies broadly an open testament, while the old nuncupative will, as OUT common law understands it, has been essentially abolished.'' In general, nuncupative wills, under our American codes, cannot dispose of lands, but of personal property only ; fol- lowing in this respect the rule of England and the common law.^ sanction nuncupative dispositions of petty estates, is one of the remnants of the old Statute of Frauds. See supra, § 363. Among the States which treat nuncupative wills of property beyond a specified amount as invalid are the fol- lowing: Maine, New Hampshire, Ver- mont, New Jersey, Delaware, Maryland, the two Carolinas, Alabama, Texas, Mississippi, Missouri, Wisconsin, Indi- ana, Michigan, Iowa and Arkansas. 1 California code (Ed. 1876), § 6289. See also Stimson's Am. Stat. Law, § 2701. The idea of permitting a nur. cupative will in cases of one's sudden iMness and death while away from home, is expressed with more or less favor in various local codes. Slimson, ib. § 2702. ' In Louisiana, verbal testaments are now abrogated, and nuncupative or open wills, like mystic or sealed wills, must be in writing. The civil code of this State divides all testaments into these three classes: (l) Nuncupative or open testaments; (2) mystic or sealed testa- ments; (3) holographic (or olographic) testaments. See supra, §§ 6, 361. Upon this fundamental division is based the jurisprudence of this State relative to nuncupative wills, and citations from Louisiana reports must be understood accordingly. The method of making ■nuncupative testaments, either by public act, or by act under private signature, is fully set forth in the revised civil code of that State. See Rev. Civ. Code La. § 1567 et seq. The nuncupative testa- ment by public act is received by a notary public in presence of three resi- dent or five non-resident witnesses; it is dictated by the testator, written out by the notary, read over and signed by the testator and witnesses. The nun- cupative testament by act under private signature is written by the testator him- selfi or by any other person from his dictation, etc.; and here, too, the for- malities are quite strict, as to reading the will over in the presence of wit- nesses, after which the paper is duly signed and attested; five resident or seven non-resident witnesses being here required except in specified instances. See also Wood v. Roane, 35 La. Ann. 865; Adams u. Norris, 23 How. 353. The will, when written out, must con- tain the declaration that it was written by the notary; evidence aliunde on this point is inadmissible. Dorrie's Succes- sion, 37 La. Ann. 833. As to dispensing with proof that the testator dictated it, ■when written out of the presence of witnesses, see 39 La. Ann. 294. See also 41 La. Ann. 1109, 1153; 39 La. Ann. 1092; 42 La. Ann. 1086. ' See supra, § 362. Some of our codes are, perhaps, capable of a differ- ent Construction; but if so, the right is created by the local statute. It has been repeatedly declared, in construe- 388 CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 366 § 366. Soldiers, Mariners, etc, . who constitute this Privileged Class. — Who constitute, we may first ask, this privileged class, which in England and many of our States have con- stantly been permitted to dispose of their personal property, their wages, goods and chattels, by word of mouth, to the ex- clusion at length of all others j and who under all American codes stand at least as well off as others in such testaments .' The words of the statute sufficiently explain for the most part : they are soldiers in actual service and mariners at sea, or by whatever similar expression the legislature may have described them. English and American courts agree in giving to this lan- guage of the codes a very liberal interpretation. The term " soldier " as thus applied is not confined to those who serve in the ranks, but embraces every military grade from private to commander-in-chief; it includes generals, regimental and line officers, those assigned to field or staff duty, surgeons, all who hold commissions or warrants, or are borne on the rolls as enlisted men, provided the condition of "actual military service " be fulfilled.^ English courts have treated persons in the military service of the East India Company as " soldiers " ; * nor can we doubt that regulars and volunteers, when enrolled and serving at the call of government in some crisis, belong equally to this privileged class ; ^ though members of the vol- unteer militia and home reserves certainly do not, while pur- suing their peaceful occupations as citizens, or parading for drill or pleasure. As to " mariners," a like liberal construction prevails, and the whole marine service is included, superior officers up to the highest in command as well as common tion of the local enactment, that no St 381 ; 10 Ohio, 462. So recently power is thereby conferred to dispose has that of Texas. Moffett v. Moffett, of real estate by a nuncupative will, no 67 Tex. 642, and' cases cited. Cf. 70 such right having existed at the common Tex. 18. law. Page v. Page, 2 Rob. (Va.) 424; ' Donaldson, Goods; of, 2 Curt. 386; Smithdealz'. Smith, 64 N.C. 52; Palmer 5 Notes Cas. 92; 3 Curt. 537; Van V. Palmer, 2 Dana, 390; Campbell v. Deuzer IJ. Gordon, 39 Vt. 1 1 1; Leathers Campbell, 2i Mich. 438; McLeod v. v. Greenacre, 53 Me. 561. Dell, 9 Fla. 451 ; Sadler v. Sadler, 60 " Donaldson, Goods of, 2 Curt, 386. Miss. 251. But the Ohio statute has, » See Van Deuzer v. Gordon, 39 Vt. been construed as conferring such a ill; Leathers v. Greenacre, 53 Me. right. Ashworth v. Carleton, 12 Ohio 561. §366 LAW OF WILLS. [PART IIL seamen. The purser of a man-of-war is a mariner, in this sense, and so are all others who belong to the navy ; ^ and to those, moreover, in the merchant service, does the same privi- lege extend, to the captain, for instance, of a coasting vessel, or the cook on board a steamer.^ For though the defenders of the government by land seem in the one case to be singled out for this testamentary honor, they who defend by sea are not the only recipients of favor in the other, nor is the corre- spondence of the two classes complete. § 367. The Same Subject. — But the restrictions under which soldiers and mariners are expressly laid by the lan- guage of the act in question curtail the privilege consider- ably. Nor is this curtailment the same in either instance, (i) The soldier has no special privilege of nuncupation by our law unless "in actual military service," that is to say, "while engaged in an expedition," for these terms are taken by the courts as synonymous. As one of a privileged class he may make a valid oral will, though well and strong, and not in extremis, but only exposed to that general peril which attends all military expeditions. The term " expedition " is not confined to the period of conflict nor to that movement of troops which immediately precedes or brings on the shock of an engage- ment, and yet wills made in such imminent danger of death ought to be most highly favored ; but while encamped in an enemy's country, surrounded by a hostile population, taking part in operations directed against the foe, and, as one would say, at the seat of war, a soldier is properly deemed in actual military service and capable of making a nuncupative will, although his own present and immediate share in those opera- tions may be at some quiet and remote post, or during a lull in hostilities. For all campaigns involve periods of action and inaction, and in all such service detachments must relieve one another, and points distant or near to the enemy be well covered; and marching orders may arrive at any moment.^ 1 Hays, Goods of, 2 Curt. 338; i bard, 8 N.Y. 196; Thompson, £j;/a>-*, Wms. Exrs. 118. 4 Bradf. 154. A passenger on a vessel " 5 Notes Cas. 596; Milllgan, Goods is of course no " mariner." Warren v. of, 2 Rob. 108; I Hagg. 51; Parker Harding, 2 R. I. 133. Re, 2 Sw. & Tr. 375; Hubbard v. Hub- » See Leathers v. Greenacre, 53 Me. 390 CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 367 Courts may well go a step farther, and dropping this word "expedition," construe "actual military service" to mean the active exercise of military functions at times of danger, whether in the enemy's country for aggressive war, or for defence at home, when invasion, insurrection, or riot is to be put down.i But on the other hand, while one is quietly quartered in barracks, at home or abroad, performing a sort of routine guard duty, and engaged in no active operations, offensive or defensive, which threaten death and move him towards a scene of danger, he cannot made a valid nuncu- pative will, as the courts have frequently decided ; ^ nor can he while at home on furlough,^ or near home in the camp where troops are recruited and organized before they are sent to the seat of war ; * for at such times he stands in no need of a privilege, but may pursue the prudent formalities imposed upon civilians.^ Consequently, under our broad sense of the term " expedition," a soldier may make a nuncupative will while passing from the outer to the inner field of military operations, or from one point to another, or while detailed or detained on the line of march, provided he be in actual service 561, one of the latest cases where this plead in favor of treating a soldier's subject is well discussed. "To limit informal testament, whether written out the soldier's privilege," says Barrows, J., or dictated, as genuine, if only estab- "to those excursions from camps or lished. quarters in the enemy's country which ^ See language of Van Deuzer v. are designed to bring on an immediate Gordon, 39 Vt. in, 118; Botsford v, engagement, would be to defeat it for Krake, I Abb. Pr, N. S. 112. the most part, except as to mere nuncu- ^ Drummond v. Parish, 3 Curt. 522; pations, the proof of which, resting in White v. Repton, 3 Curt. 818. See 2 the breasts of those who are similarly Curt. 341, 368. As to a will made on a exposed, may never be made available tour of inspection, see i Robert. 276. to the soldier's friends." lb. 573. And » Smith's Will, 6 Phil. (Pa.) 104. see 39 Vt. 119. The general danger to * Van Deuzer p. Gordon, 39 Vt. in. which all soldiers are exposed in such ^ The Roman military testament, a situation, the chances of being sud- whose first sanction came from Julius denly posted elsewhere without good Caesar, was hmited in like manner to opportunity to arrange one's affairs, not soldiers when in actual service and while to add other reasons (more forcible in they lived in tents. Veterans after dis- earlier centuries than ours), such as the mission, soldiers out of camp, soldiers inconvenience of procuring writing ma- not upon an expedition, but living in terials in camp suitable for solemn docu- their own houses or elsewhere, were ments, the Absence of legal advisers, required to make their testaments like and the unskilfulness and illiteracy often other citizens. Just. Lib. II. tit. 1 1 ; S3 found among military comrades, all Me. 570. § 367 LAW OF WILLS. [PART III. and pursuing his orders.^ (2) The mariner's privilege of nun- cupation lies under a different condition : that, namely, of " being at sea " ; and the general peril here kept in view, is of a different description, though quite as real as the other, while for similar reasons it may be inconvenient for one to prepare a testament formalin all points as the statute imposes upon those who are safe at home. In legal parlance waters within the ebb and flow of the tide are considered the sea ; and hence the mariner may exercise his right of nuncupation while the vessel is on a voyage, and lying at anchor in an arm of the sea,^ or while in the tide-waters of a harbor.* This seems to be the natural limit of the rule ; and admiralty law may guide to the conclusion in a case of doubt. But the spirit of this privileged legislation is sometimes invoked as against a literal construction of the phrase "at sea"; and a naval officer living on shore, in his official residence, has been refused the privilege of making a nuncupative will, , though occasionally visiting his ship in the harbor ;* while the will of a seaman living on board ship, who went on shore upon leave and there met with an accident from which he died before he could return, is held privileged : ^ and again the fact that a nuncupative will is made by one while on a naval expedition and exposed to the peril of death, has given it peculiar favor, like that accorded to military testaments, and brought it within the spirit of the exception.* 1 Herbert I/. Herbert, Dea. & Sw. 10; ' Austen's Goods, 2 Rob. 6ii. Here Thome's Goods, 29 Jur. 569. In Gould the will allowed was made while con- V. Safford, 39 Vt. 498, a soldier fell ducting an expedition in Chinese waters, sick on the line of march and was sent The will was made in a river, but to the hospital, where he died. whether within tide-waters or not was * Hubbard v. Hubbard, 8 N. Y. 196. not shown. But in Gwin's Will, i Tuck. ' Thompson, Ex parte, 4 Bradf. 154; 44, the nuncupative win of a naval offi- 5 Notes Cas. 596. Cf. Warren v. Har- cer made in the war on the Mississippi ding, 2 R. I. 133. River near Vicksburg, was refused pro- * Easton v. Seymour, 3 Curt. 530; bate. These cases are in conflict. As cited 2 Curt. 339. a general rule, however, the will of a ' Lay's Goods, 2 Ciirt. 375. In neither mariner not in actual service during of these cases was the will made while war, is not made " at sea " if made on a the testator was literally " at sea." He river. See 2 R. I. 133; 3 Curt. 522. was actually on shore. CHAP, rv.] NUNCUPATIVE OR ORAL WILLS. § 369 § 368. The Same Subject. — A soldier or mariner who makes a nuncupative will which is invalid because he is not at the time in " actual military service," on the one hand, or " at sea," on the other, may, however, while situated as thus required, give such a will validity by words and conduct tan- tamount to adopting it as his present will.i § 369. Points to be considered in Nuncupative 'Wills; dis- tinguishing Testators Privileged and Unprivileged. — It now re- mains to consider the essential points which arise in connec- tion with nuncupative wills. We shall discuss them in the following order: (i) Whether the will must be made in extremis ; (2) the place of makmg the will; (3) the man- ner of declaring one's disposition; (4) the requisite number of witnesses to the will ; (5) the subsequent reduction of the will to writing; (6) strictness of proof as to all material facts ; (7) whether informal writings may be upheld as nun- cupative wills ; (8) repeal or alteration of a written will by a nuncupative one. While dealing with these topics,, let us still remember that our legislation, as based upon the Statute of Frauds, justifies a division between privileged and unprivileged testators ;, those of the former class being singled out from the general range of disposers by nuncupative will, for liberal treatment The usual privileged class is that of soldiers and mariners under the conditions described in the foregoing sections ; ^ to which the California code adds those expecting death from injury received the same day.^ Wills which bequeathed estate not more than ^£30 in value were likewise privileged by the Statute of Frauds ; and various American codes still pursue a like distinction.* But the privileged class, whether 1 Van Deuzer v. Gordon, 39 Vt. i n. with reference to wills bequeathing more ^ Supra, §§ 366-368. than;^30; leaving only the general re- * Supra, § 365. And see others under straints of the older common law to an extreme emergency, who are. desig- operate as to wills of less value. Sttpra, nated in the codes of some States, ib. § 363. Some American codes are sim- note. Their status is very slightly con- Uarly expressed, requiring nuncupative sidered in. the courts. Carroll »; Bon- willsof property beyond a stated amount ham, 42 N. J. Eq. 625. to be prepared with partictdar formalin * See language of Stat. 29 Car. II. § 19, ties; while others, on the contrary, sim- which sets forth its restrictions merely ply prohibit all nuncupative wills of 393 § 371 LAW OF WILLS. [PART IIL composed of soldiers and mariners, or of the testators of petty estates, as the case may be, is now, by the policy of modern England and most of the United States, the only class capable of disposing by nuncupation at all ; and this, again, we must keep steadily in view, while investigating the subject. § 370. Whether the Testament must be made in Extremis. — First, then, to inquire whether the will must be made in ex- tremis. That this is not essential in the case of the privi- leged soldier, we have already observed,^ and the same holds probably true of the privileged mariner ; for the one being in "actual military service" and the other "at sea," a general exposure to sudden death supplies sufficient peril upon which legislation founded its exception. As to the privileged dis- poser of a petty estate,^ a nice question may arise ; namely, whether by the law of England, prior to and independently of the Statute of Frauds, all nuncupative wills' must be made in extremis in order to be valid.* But, aside from such ex- ceptions, the modern rule as fairly settled is this : that a nun- cupative will is not good unless it be made when the testator is in extremis. " Last sickness " is the expression used in the Statute of Frauds ; and the same words are transplanted in American codes ; and by these words should be understood one's last extremity.* § 371. The Same Subject. — But there appears a discrep- ancy in the decided cases concerning the pressure of that extremity which shall justify an unprivileged nuncupation. The long train of restrictions imposed by the act of 29 Car. II. evidently discouraged testators from that form of bequests ; for Blackstone found it hardly ever heard of by his property beyond a fixed value. See ' Cf. the different opinions expressed supra, § 365; 3 Jarm. Wills, 755, Ran- in Prince v. Hazleton, 20 Johns. 503, dolph's American note. where the history of nuncupative wills 1 Supra, § 367. is traced down from the earliest times. ^ Such as the testator under 29 Car. * Prince v. Hazleton, 20 Johns. 503; II. § 19, who disposed of an estate not Haus v. Palmer, 21 Pepn. St. 296; Sad- exceeding £yi, and was excepted from ler v. Sadler, 60 MiSs! 351; O'Neill ». the express restraints imposed by that O'Neill, 33 Md. 569. But cf. Johnson act in consequence. v. Glasscock, 2 Ala. 239. See § 361. 394 CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 37I. day, "but in the only instance where favor ought to be shown to it, when the testator is surprised by sudden or vio- lent sickness " ; ^ nor do the English reports furnish a single valuable comment upon a point which, as legislation now stands in that country, can never arise again.^ In this coun- try, however, the question of extremity has been discussed in several cases. As Chancellor Kent held, and the court de- cided in Prince v. Hazleton, the extremity or last sickness must be such that the party speaking then is overtaken by so sudden and violent a sickness, or at least utters his wishes so shortly before death, that there was afforded thereafter no convenient time or opportunity to have reduced his words to writing and executed a formal will.^ It would follow that if the testator recover, even when he has made a nuncupative will with due formality, it becomes of no force ; * and even though a lingering sickness proved his last, yet if his mental and physical condition afforded an ample opportunity and inducement to prepare and execute a written will, after his nuncupation occurred, the spoken words could not operate as those of a "last sickness." This justifies the policy of the Statute of Frauds, which, by the better opinion, meant to deal strictly with all non-privileged cases,. and only tolerated 1 2 Bl. Com. 501. In stating the es- This view is adopted in Pennsylvania, sentlals of a nuncupative will, this writer Yarnall's Will, 4 Rawle, 46; Haus v. states further : " To prevent impositions Palmer, 21 Penn. St. 296. And in from strangers, it must be in his last Maryland. O'Neill v. O'Neill, 33 Md. sickness; for if he recovers, he may al- 569. In O'Neill v. O'Neill the oral dis- ter his dispositions, and has time to position alleged was made on the day make a written will." lb. immediately before the testator's death. 2 One instance is reported where a But the testator had been an invalid for nuncupative will was established in fifteen years, and had been for eight 1753 under the Statute of Frauds. A months previous to his death confined wagoner was injured so badly that he to his house, gradually yielding to con- died the next day. He made his oral sumption; his physician had admon- will while lying disabled and in extra- ished him that recovery was hopeless; mis. A simple decision by the court he lived in a populous city and with upon the facts given in testimony is pre- ample opportunity to prepare --^ written served. Freeman w. Freeman, i Cas. will; and for a day at least after the temp. Lee, 343. See circumstances in nuncupation he lived, retaining the full Jackson v. Bennett, 2 Phillim. 90, possession of his senses to the hour of which case, however, decides nothing his death. The nuncupative will was in point. accordingly disallowed. « Prince v. Hazleton, 20 Johns. 502. * Cases su^ira. 395 § 372 LAW OF WILLS. [PART IIL these nuncupative wills under the stress of a supposed neces- sity. Though the lingering disease should prove finally fatal, it must come to the last stage of extremity, if not to the last day or hour, in order to be a "last sickness" within the stat- ute ; and even here nuncupation may be prejudiced by the neglect to prepare in good season a written will in view of certain death. A more liberal rule is announced by the supreme court of Alabama : namely, that if the words are apoken in the sick- ness of which one dies, and under a sense of approaching . death, it may suffice, even though the party lived long enough I after the nuncupation to afford a fair opportunity for reducing his desires to the more permanent form of a written and exe- cuted will.i But such latitude is dangerous ; and while the circumstances in every such case deserve a fair consideration, the preferable rule is the former.^ And accordingly in a recent New Jersey case, where the decedent lived nine days after making a verbal will, possessing the capacity and having fair opportunity to execute a written one, the nuncupation was treated as of no effect ; for wills of that description (ex- cept as to the soldiers and mariners already mentioned) could be justified only by sheer necessity.^ § 372. The Place of Making the Will. — Second, as to the place of making the nuncupative will. The common law makes no restriction in this respect for one kind of testament more than another. But under the Statute of Frauds nun- cupative wills of the non-privileged sort can only be made in one's dwelling, unless the testator is surprised or taken sick while absent and dies before his return.* Our local code at 1 Johnsoa v. Glasscock, 2 Ala. 239. which intimates that the concrete facts In this case the testator's disease as- of each case should be weighed, but sumed a serious character about four- announces no positive opinion, teen days before he died. About ten ' Carroll v. Bonham, 42, N. J. Eq. days before he died the will was made. 625. Here the decedent, a woman. The testator, it was conceded, knew how appears to have had an impression that to write, arid there was ample oppor- her verbal will, whenever made, would \ tunity to execute a written will after this he good. See also Scaife v, Emmonsy' nuncupation. The witnesses reduced 84 Ga. 619. his wishes to writing soon after he died. * Act 29 Car. II. § 19; supra, § 363. ' See Sadler v. Sadler, 60 Miss. 251, See Marks v. Bryant, 4 Hen. & M. 91 ; CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 373 the present day must determine whether any such restraints still operate. From this limitation the wills of soldiers and mariners were of course exempt, not without some such restraint of their own from the nature of the case ; ^ nor were wills of petty amount made subject to the rule.^ § 373- ^^^ Manner of Declaring One's Disposition. — Third, as to the manner of declaring one's disposition, or what we may term the nuncupation. The Statute of Frauds expressly enacts, that the testator shall, at the time of pronouncing his will, bid the persons present or some of them bear witness that such was his will, or to that effect.^ This is technically called the rogatio testium ; and the statute requirement, whose policy plainly is to establish testamentary intent so clearly that bystanders may not frame a will out of words loosely spoken by the dying person, has been strictly con- strued. Thus, where a mother in her last sickness called to her bedside several of her children and the daughter of the person with whom she lodged, and declared how she wished her effects disposed of and her family brought up after her death, the declaration was held insufRcient, for want of the solemn rogatio testium ; she ought to have bade those present bear witness that this was her will.* A dying person may give many farewell messages, may express many farewell wishes, often changing his mind, adding or substituting as new ideas occur ; but to constitute the oral will, he must have concluded its substance in his own mind, and, gathering up his faculties, he must se't forth clearly before the witnesses what shall be this disposition once and for all, and so give Nowlin ». Scott, lo Gratt. 64. In the Will, 20 N. J. Eq. 473 ; Dockrum v. Virginia statute "habitation" is used Robinson, 26 N. H. 372. Nor can the (in the sense, however, of « dwelling- statement of a sick person before those house"), and there are other verbal in the room, that she wants A to have variations from the expression of the her property, be probated as her nuncu- .Statute of Frauds. pative will, if v^he neither mentions a 1 Supra, § 367. will nor calls on any one present to note 2 Act 29 Car. IL § 19. her language. Broach v. Sing, 57 Miss^ 8 ib_ 115. And see Bundrick v. Haygood, * Bennett v. Jackson, 2 Phillim. 190. 106 N. C. 468. And see Cas. temp. Lee, 588; Hebden's 397 § 373 ^^^ O^ WILLS. [part III. point to the transaction as an ideal execution of his will on the spot, including a request for their ideal attestation thereof. Independently of such legislation, and prior to the statute of Charles II., very nearly the same rogatio testium appears to have been indispensable at our law ; for though no precise form of words was prescribed, the alleged nuncupation must have disclosed a present consistent intention that the very words uttered should constitute one's will, and that the wit- nesses should understand the dying person in that sense and i mark his words accordingly. This nuncupation on his part manifested a testamentary intent, whether one used the word "will" or "testament," or not.^ In this aspect, then, our privileged classes of testators appear to have no substantial advantage over others ; except it be in dispensing with the more formal declaration of the statute where other circum- stances sufficiently establish that nuncupation and a last will were in fact intended j^ or perhaps where the will is founded upon letters, an unperfected instrument in writing, or other proof not purely oral.^ But military testaments were always treated with singular indulgence ; and the same indulgence may possibly extend to mariners at sea.* 1 Swinburne says that the testator gle nuncupation with a rogatio testium. "doth declare his will" (his whole See Gould ». SafFord, 39 Vt. 498. The mind, etc.) " before a sufficient number civil law was very indulgent in respect of witnesses." Swinb. pt. 4, § 29; pt. to wills of soldiers, and if a soldier I, § 12. Perkins says that the testator wrote anything in bloody letters on his prays those about him to bear witness shield, or in the dust of the field with of his last will and declares by word his sword, it was held a good military what is his will. Perk. § 476. See testament. I Bl. Com. 417. No par- those early authors cited supra, § 361. ticular formalities were necessary to the 2 It appears, however, that at common validity of such a disposition. Accord- law a nuncupative will may be made not ing to Swinburne, only those solemni- only by the proper motion of the testa- ties were necessary which are juris gen- tor, but also at the interrogation of an- tium ; no precise form of words was other. Swinb. pt. I, § 12, pi. 6; I required, and it was not material whether Wms. Exrs. 122. the testator spoke properly or improp- ' Of such wills adduced in probate as erly if his meaning appeared; and sol- nuncupative, etc., we shall speak pres- diers are clearly acquitted from observ- ently in this chapter. ing the solemnities of the civil law in * A military testament may be good, the making of their testaments. Swinb, though made up of declarations and re- pt. i, § 14, pt. 4, § 26. quests not strictly in the form of a sin- CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 3/5 § 374. The Same Subject. — As to wills, therefore, which derive no privilege beyond that accorded to a nuncupation for establishing them, it should appear that the deceased, at the time of speaking the alleged words, had the present tes- tamentary purpose and meant that those words should con- stitute the final expression of that purpose.^ He should have a sufficient number of witnesses present together and call upon them at the same time to bear witness to his will as he pronounces it, or use language equivalent ; ^ nor is it enough that he declares his will to these witnesses separately and apart from one another.^ Nor should the will be constituted by words drawn out from the dying man by some interested party present ; but the testament ' should appear to come freely and spontaneously from the dying man's own breast.* § 375- ^^® Requisite Number of 'Witnesses to the Will. — Fourth, as to the number of witnesses who are required to prove the will. The Statute of Frauds declared that no nun- cupative will should be good that was not "proved by the oath of three witnesses " ; and so strictly has this provision been construed, that where one of the three witnesses present at a certain nuncupation died before he could make proof, the will was held to be invalid.^ So should these three witnesses be in substantial accord as to what the will of the deceased really was.® Among American States which still permit nuncupative wills to be made by non-privileged persons, 1 Verbal instructions and directions Rawle, 46; Wester v. Wester, 5 Jones for drawing up a written will do not L. 95. The rogatio testium is indispen- constitute a nuncupative will although sable. Portman v. Hunter, 6 B. Mon. spoken in presence of the proper num- 538, construes the Kentucky statute less ber of witnesses. Dockum v. Robin- strictly, but, as precedents go, contrary son, 26 N. H. 372. And see 3 Leigh, to rule. 140; Reese v. Hawthorn, 10 Gratt. * QC Brown z/. Brown, 2 Murph. 350; 548; Hebden's Will, 20 N. J. Eq. 473. Parsons v. Parsons, 2 Greenl. 298. The 2 Hebden's Will, supra ; I Add. 389; peculiarities of the Louisiana code with Brown v. Brown, 2 Murph. 350; Ridley reference to nuncupative wills have V. Coleman, i Sneed, 616; Arnett v. already been noted. Supra, § 365.. Arnett, 27 111. 247. ^ I Eq. Cas. Abr. 404; I Wms. Exrs. « Prince v. Hazleton, 20 Johns. 505; 121. Weeden v. Bartlett, 6 Munf. 123; Tally » Mitchell v. Vickers, 20 Tex. 377, V. Butterworth, 10 Yerg. 501 ; Offut v. BoUes v. Harris, 34 Ohio St. 38. Ofiut, 3 B, Mon. 162; Yarnall's Will, 4 399 § 37^ i-Aw OF WILLS. [part iil some require three witnesses ; but commonly two witnesses may suffice.^ A statement before less than the requisite number of witnesses does not constitute a valid nuncupation.'* Nuncupative wills of the privileged kind — those of soldiers, and mariners, and the wills of petty amount — the Statute of Frauds leaves without any definite number of witnesses to establish them. Such wills, it would appear, may, aside from legislation to the contrary, be proved in a court controlled by common-law rules upon the testimony of a single unim- peached, competent witness.' But no one is a suitable witness for a nuncupative will unless competent as in other testamentary causes.* § 376. Subsequent Reduction of the Nuncupative Will to ■Writing. — Fifth, as to the subsequent reduction of the will to writing. The Statute of Frauds required the nuncupative words to be put into writing within six days after they were spoken ; as otherwise the alleged will could not be proved after six months.^ Similar legislation (with slight variation as to the number of days) may be found in the United States ; and where the words reduced to writing are not substan- 1 See I Jarm. 98, Bigelow's note; 3 law a controverted fact had to be estab- Jarm. 755, Randolph's Am. note; Stim- lished by the testimony of at least two son's Am. Stat. Law, § 2703. Maine, witnesses; but under the rules of the New Hampshire, New Jersey, Maryland, common law, the testimony of a single Texas and Wisconsin are among the witness, where there is no ground for States whose codes require three wit- suspecting either his ability or his integ- nesses. In most of our northwestern rity, is a sufficient legal ground for be- States and those on the Pacific slope, lief, even in criminal cases. lb. 505. besides Pennsylvania, Kentucky, Ten- * Supra, § 350; Haus v. Palmer, 21 nessee and Mississippi, the code pro- Penn. St. 296. vides for two witnesses instead. In ' Stat. 29 Car. II. § 19. By § 21, as Ohio the rule of competency and disin- we have seen, no nuncupative will could terestedness is more strongly insisted be admitted to probate without at least upon, under the statute, than in the fourteen days' delay from the testator's case of written wills. Vrooman v. death and a citation of the widow and Powers, 41 Ohio St. 191 ; supra, §§ 353- next of kin. " It [the nuncupative will] 35^- must not be proved at too long a dis- 2 Bundrick v. Haygood, 106 N. C. tance from the testator's death, lest the 468; 41 Ohio St. 191; 84 Ga. 619. words should escape the memory of the 8 Gould V. Safford, 39 Vt. 498, where witnesses; nor yet too hastily, and with- this rule was applied in favor of the out notice, lest the family of the testator nuncupative will of a soldier in actual should be put to inconvenience or sur- service. Under the rules of the civil prised." 2 Bl. Com. 501. 400 CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 3/8 tially the same as spoken, the will may be pronounced invalid.^ This safeguard against fraud and failure of recol- lection applies in strictness, however, only to the non-privi- leged wills ; and for those of the privileged kind, we may assume that the usual common-law rules of evidence are applicable, to prove or disprove them.^ § 377. Strictness of Proof as to all Material Pacts. — Sixth, as to strictness in establishing all the facts material to the probate. Nuncupative wills, being as a rule no favorites of the court, demand strictness of proof on all essential points, whether for the purpose of showing that the statute restraints have been fully complied with, or to establish facts funda- mentally indispensable to the probate, independently of statute restraints. For, with or without a Statute of Frauds, evidence more strict and stringent than in the case of a writ- ten will should be furnished' in every particular. "This," observes Williams, "is requisite in consideration of the facilities with which frauds in setting up nuncupative wills are obviously attended ; facilities which absolutely require to be counteracted by courts insisting on the strictest proof as to the facts of such alleged wills. Hence the testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation must appear, in the case of a nun- cupative will, by the clearest and most indisputable testi- mony."^ The general impolicy of nuncupative wills is not, however, asserted as strenuously in some States as in others; while some of the privileged classes, soldiers in actual service more particularly, appear to be regarded with positive favor and indulgence. § 378. Informal Writings, whether upheld as Nuncupative ■Wills. — Seventh, as to whether informal writings may ever 1 Bolles V. Harris, 34 Ohio St. 38. in the preceding sections. See also And see Mitchell v. Vickers, 20 Tex. Smith v. Thurman, z Heisk. i lO; Bolles 377; Haygood's Will, loi N. C. 574. v. Harris, 34 Ohio St. 38; Mitchell v. 2 Gould V. Safford, 39 Vt. 505. Vickers, 20 Tex. 377; 84 Ga. 619; 41 «Wms. Exrs. 121,122; I Add. 389, Ohio St. 191; 106 N. C. 468. For the 390. This consists with the cases noted Louisiana practice see supra, § 365. 401 § 378 LAW OF WILLS. [pART III. be upheld as nuncupative wills. We have seen that until such enactments as the Statute of Victoria came in force, holograph letters, unattested writings, and even mere memo- randa, were allowed a very loose operation as wills of personal property. Thus was it, in fact, long after the Statute of Frauds restrained nuncupative wills.^ In various American States where these unattested writings have been laid under the ban, courts show a disposition to sustain unperfected wills in writing as nuncupative wills ; as where, for instance, the completion of the will was prevented by act of God.^ But this is a straining of the statute ; for a nuncupative will, as its literal meaning imports, is simply a verbal declaration made in presence of witnesses called upon to notice it, and not reduced to writing by the testator's direction ; the verbal declaration being intended as his will, and not as something different or preliminary to it ; and thus do the more consist- ent authorities rule it.^ But privileged wills, and especially military testaments, may stand on a more favored footing in this respect ; not because the will which is written down by the testator instead of being uttered is strictly of the nuncupative kind, but because the civil law dispensed freely with formalities in such testaments, and the common law is supposed to intend the same. Defective instruments in writing, letters in his own hand, declarations which some comrade is to write out and transmit by mail, and the like, have accordingly been 1 See supra, § 253. In England until don, 2 Phillim. 213; Strish v. Pelham, the Statute of Victoria, which abolished 2 Vera. 647. So has it been in Amer- nuncupative wills of non-privileged per- ican States upon a like theory, prior to sons, on the one hand, and written wills the passage of local statutes which make of personal property informally attested, a. formal execution and attestation ne- on the other, an actual testamentary cessary. Public Administrator v. Watts, disposition, which had been committed i Paige, 373; 4 Wend. 168. to writing by authority of the testator, 2 Offutw. Offut, 3 B. Mon. 162; Boof- with intention to execute, but was left ter v. Rogers, 9 Gill, 44. unsigned or unattested by accident or * Hebden's Will, 20 N. J. Eq. 473; the act of God, might be admitted to Dockrum v. Robinson, 26 N. H. 372; probate : but the probate was not that Porter's Appeal, 10 Penn. St. 254. Nor of a nuncupative will, nor did any of the can a will executed as a written will, restraints upon nuncupative wills ob- and defective in respect of execution, be struct them. Huntingdon v. Hunting- set up as a nuncupative testament. Rees 402 CHAP. IV.] NUNCUPATIVE OR ORAL WILLS. § 379 upheld as suitable soldier's testaments, within the exception of our statutes relating to nuncupative wills, though no rogatio testium took place at all.^ § 379. Repeal or Alteration of a 'Written 'Will by a Nuncu- pative One. — Eighth, as to the repeal or alteration of a writ- ten will by a nuncupative one. This, we have seen, is expressly forbidden by the Statute of Frauds.^x^nd under American codes, the revocation, total or partial, of a duly executed written will by an oral or nuncupative one is like- wise prohibited.^ V. Hawthorn, 10 Gratt. 548. A signed writing is not a nuncupative will. Stamper v. Hooks, 22 Geo. 603. » Gould V. Safford, 39 Vt. 498; Van Deuzer v. Gordon, ib. 1 1 1 ; Leathers v. Greenacre, 53 Me. 561; Botsford v. Krake, i Abb. Pr. N. S. 112. We should observe the specific lan- guage of such enactments: not that soldiers in actual service and mariners at sea may simply make a nuncupative will, but that they may dispose, etc., in ike same manner as before the act; which expression may vifell embrace all the means of disposing of personal property which the common law sanc- tioned. As to wills of petty amount,! however, the local legislation, properly' construed, may be found to permit of them only on the strict footing of " nun- cupative wills," and not by way of letter or writing informally executed. " Stat. 29 Car. II. § 22. But it has been held that this section does not prevent a nuncupative provision (made according to the statute restrictions) of a lapsed legacy. T. Raym. 334 ; Com. Dig. Devise C; I Wms. Exrs. 122. See § 363. supra. ^ ' McCune v. House, 8 Ohio, 144; Brook V. Chappell, 34 Wis. 405. See , Part IV. post, as to Revocation, etc. 403 PART IV. REVOCATION, ALTERATION, AND REPUBLICATION OF WILLS. CHAPTER I. REVOCATION OF WILLS. § 380. Various Modes of Revocation; Modern Legislation affects the Subject. — There are various modes by which a will once executed may be revoked during the testator's lifetime ; the fundamental principle being that every will (being in the nature of a gift or donation) is ambulatory until the testator dies, and may meanwhile be superseded, altered, or simply set aside whenever by his own free and rational act suitably expressed the testator manifests a corresponding Jntention, or so changes his circumstances and state in life that the law must infer that intent out of justice to his new condition.^ Hence we may consider revocation under two distinct lead- ing aspects : (i) revocation by the testator's direct act ; (2) revocation by inference of law, from acts or conduct of the test9,tor not direct.^ Under the former head may be consid- ered the effect of actually cancelling, destroying, or obliterat- ing the will ; also of making a later will or codicil inconsistent with the former ; also of expressly revoking by such later will or codicil or by some other writing ; all sufficient acts of direct revocation, in fact, whether by parol or writing, being here 1 As to wills not strictly revocable press or tacit, — it is general, further- because of mutual consideration, see more, when all the dispositions of the Joint and Mutual Wills, Part V. post. testament are revoked, and particular ^ Under the Louisiana Code, follow- when it falls upon one or more of the ing the civil law provisions, the revoca- dispositions without touching the rest, tion of testaments is stated to be ex- La Code, § 1691. 404 CHAP. I.] REVOCATION OF WILLS. § 3§I included. Under the latter head we consider more especially the effect of subsequent marriage and the birth of a child, or of marriage alone. There are important provisions bearing on this subject in the Statute of Frauds, which our modern codes, English and American, preserve and extend, with a view of reducing the compass of loose and uncertain testimony under this head as much as possible. Instruments which at this day must be made with such solemn formalities are revocable in modern policy only by acts equally solemn and positive, or nearly so ; in order that testamentary intent or a change of testamentary intent may be clearly evinced at the probate, and the main conclusion arrived at (which after all is the material one) what was the latest rational disposition of his estate, intended by the decedent, and duly expressed as the law requires, if he meant to die testate at all. For his earlier purposes, his earlier dispositions, are of no direct consequence in the pro^ bate ; it is the latest disposition or dispositions, as a consist- ent whole, — the latest legally executed testamentary scheme, ^ or that alternative and substitute, the public scheme for intestacy, by which his estate must be settled and his prop- erty descend and be distributed. § 381. The Same Subject. — The English Statute of Frauds, as we have already seen, conformed to Lord Nottingham'^s wishes, in providing that no written will should be repealed or altered by any words or will by word of mouth ; that is to say, by testament nierely nuncupative.^ The sixth section of this celebrated act was still more explicit, in discountenancing doubtful revocations, so far as related to devises of land. That section declared that no devise in writing of land, etc., nor any clause thereof, should be revocable otherwise than by some other will or codicil in writing, or other writing declar- ing the same, or by burning, cancelling, tearing or obliterat- ing the same by the testator himself, or in his presence and by his directions and consent ; but all devises and bequests 1 Supra, § 379; Act 29 Charles II. nuncupative will. McCune v. House, (1676-77), § 23. A duly executed 8 Ohio, 144. written will cannot be revoked by a 405 § 38 1 LAW OF WILLS. [PART IV. of land, etc., should remain and continue in force until the same were burnt, cancelled, torn or obliterated by the testa- tor or his directions in manner aforesaid, or unless the same were 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.^ The effect of this enactment was to demand on the testator's part either one of those plain and palpable acts which naturally signifies a changed inten- tion, like burning, cancelling, etc., the instrument itself, and which requires no witness, because the act itself takes away or discredits proof of the will ; or, instead, some other instru- ment in writing executed with all the formalities of the orig- inal one. • At the time of this enactment, and by virtue of its pro- visions, no wills required an attestation except devises of lands.^ But when the legislature prescribed for wills of per- sonal property, for all wills in fact, the same solemn execution by the testator and a stated number of witnesses, the rule of written revocation conformed to the new policy. Under the English act of I Vict. c. 26, § 20, it is declared accordingly, that no will shall be revoked but by another will or codicil, or by some writing executed like a will, or else by destroying the same.3 In the United States, we may add, the same policy has been quite generally favored; and provisions of this character, based in language upon the English Statute of Frauds but extended to wills of all kinds, are common to our legislation in every quarter of the land.* We are to observe, however, that, as the language of the later English enact- ments reduces the scope of informal and inexplicit revocation » Act 29 Charles II. § 6. cancelling, destroying, or obliterating 2 See supra, § 253. of the instrument. And this must be « Act I Vict. 26, § 20. For the pre- done by the testator; or, as most of our cise language used, see Appendix, posi. State legislatures provide, by some other * Kent Com. 520, 521, and citations, person, in his presence, or by his direc- As to the several American codes on tion. Some local varieties of language this subject, see Stimson's Am. Stat, will be found. lb. Law, § 2672. In nearly all the United Where a statute prescribes the mode States it is expressly provided that no by which a will may be revoked, evi- will, devise in a will, or codicil, can be dence of its revocation by any other revoked except by the burning, tearing, mode is inadmissible. 81 Ala. 418. 406 CHAP. I.] REVOCATION OF WILLS. § 382 once so liberally permitted, so does American legislation tend at this day, in the same direction, while codes differ, nevertheless, in fixing the standard and use terms more or less comprehensive to denote it.^ Revocation by the testa- tor's direct act is what these codes, English and American, seek to circumscribe ; for, as we shall see, that revocation which the law implies from a changed condition in the testa- tor's condition and circumstances, marriage more especially, is still a feature of our law.^ And the testator's direct act of revocation ought in all cases to be accompanied with the intention to revoke. § 382. Oral or Implied Revocation not recognized, — A writ- ten testament, then, cannot be revoked in modern practice by mere words of oral revocation, however emphatic of ex- pression or intended to take absolute effect.^ Still less can wills be made or revoked by legal implication from outward tokens of a decedent's personal feelings towards those con- cerned in his estate;* or by mere manifestations of an 1 The Massachusetts statute, for in- stance, declares : " No will shall be re- voked unless by the burning, tearing, cancelling, or obliterating of the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction; or by some other writing, signed, attested, and subscribed in the same manner that is required in the case of a will; but noth- ing contained in this section shall pre- vent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." Mass. Pub. Stats. (1882) c. 127, § S. C/. the precise language used in other American enactments upon this same subject. '■' Stat. I Vict. c. 26, §§ 18, 20, ex- pressly provides for revocation by sub- sequent marriage. The Massachusetts statute, supra, is seen to reserve revoca- tions implied by law. Other instances from the codes might be cited. The main point of modern interest is whether marriage alone revokes as to both sexes, without the birth of a child. ' Supra, § 381; Hylton v. Hylton, i Gratt. 161; Perjue ». Perjue, 4 Iowa, 520; Jackson v. Kniffen, 2 Johns. 31; 2 Yeates, 170; Kent v. Mahaffey, 10 Ohio St. 204; Wittman v. Goodhand, 26 Md. 95 ; Jones v. Moseley, 40 Miss. 261 ; Slaughter v. Stephens, 81 Ala, 418. Before the Statute of Frauds there might be parol revocation. Cro. Jac. 497. And see 5 Conn. 164. A testator went to his executor, took the will from his custody, and showed the envelope containing it to his wife, telling her that it was good foi nothing and was to be destroyed. After his death, the instrument was found uncan- celled in a bureau drawer which con- tained various waste papers. It was held that the will had never been prop- erly revoked. Goodsell's Appeal, 53 Conn. 171. * Not even where the testator disin- herited his son by will, and afterwards became reconciled to him, can revoca- tion of the will be implied. It is for the testator to perform the efficient act; the 407 § 384 LAW OF WILLS. [PART IV. intention tO; make a different disposition at some future time.^ § 383. Revocation by Burning, Tearing, Cancelling, Obliter- ating, etc. — Our investigation leads us, then, to compare the language of local enactments, from the time of Charles II., not expressed with uniform favor, as to revocation by direct act of the testator. And first, as to burning, cancelling, tear- ing, obliterating, and the like, with suitable intention. " Burn- ing, cancelling, tearing, or obliterating" is the language for which the Statute of Frauds sets the copy.^ " Burning, tear- ing, or otherwise destroying " are the words of the Wills Act of Victoria, suggesting a narrower construction, but applica- ble more universally to wills, whatever the kind of property.^ Each American code employs its own terms, but generally some or all of the above. Such are the modes to which one is confined who seeks to revoke by what he does to the will itself. It is obvious that utterly destroying the instrument so as to leave nothing which may ever be produced in evidence again is one method here contemplated, and the more favored if not the only favored one ; and that the other method consists in leaving the instru- ment so cancelled or obliterated that an intent to revoke may well be inferred from its appearance. Certainly, if one means to revoke, it is his best course to burn or tear up his will, so that no scrap of it shall remain behind him ; for otherwise, with all his pains, he tempts those who are shown what was given them, and then cut off, to conjure up doubts whether he really cancelled, and thus plunge the estate into a doubtful contest. § 384. The Same Subject : the Intention to revoke must ac- company the Act. — Whatever the means thus employed for defacing or destroying the will, a free and rational intention to revoke must accompany the act on the testator's part, or law cannot do it for him. Jones v. Mose- ^ Rife's Appeal, 1 10 Penn. St. 232. ley, 40 Miss. 261. But the act of can- ' Stat. Charles II. § 6. celling or disposing may be explained ' Stat. I Vict. c. 26, § 20. in the light of the testator's feelings where the act is in doubt. 40$ CHAP. I,] REVOCATION OF WILLS. § 384 the revocation will not be valid. Thus, to use Lord Mans- field's illustration, if a man were to throw ink upon his will instead of sand, there would be no revocation of the will although the writing were irrecoverably gone ; ^ nor, we may add, would exposure of the will to destruction or defacement by insects, mice, acids, fire or water, through mere heedless- ness, have this effect ; and of course injury to the paper or its loss by act of God, or from any cause external and proxi- mate without the testator's due sanction, constitutes no legal revocation. Or supposing a man having two wills of differ- ent date before him, should direct the former to be destroyed and by mistake the latter is cancelled.^ No revocation can be good which is procured by fraud or palpable error, or where the testator was unduly influenced to commit the act ;^ and it is clearly settled that the revocation of a will while the tes- tator is insane is no less void than the making of a will ; * because it requires the same capacity to revoke a will as to make one, and one cannot intend to destroy, in a legal sense, unless his mind acts rationally and to the point.^ Statutes frequently express the idea that the revocation of a will must be done " with the intention of revoking the same."^ Such expression is not, however, necessary; for it was long ago settled, upon construction of the Statute of 1 Burtenshaw v. Gilbert, Cowp. 52. w. AUison, 7 Dana, 94; Brunt v. Brunt, 2 Cowp. 52; Onions v. Tyrer, i P. L. R. 3 P. & D. 37; Rhodes v Vinson, Wms. 34S; Bums v. Bums, 4 S. & R. 9 Gill, 169; Fordw. Ford, 7 Humph. 92; 295. Even where the will is torn up, Rich v. Gilkey, 73 Me. 595, and cases under a mistaken impression that it cited; Johnson's Will, 40 Conn. 587. is invalid, and then gathered up and » No revocation is implied where none preserved, it will remain in force. Giles was intended. See Birks v. Birks, 34 V. Warren, L. R. 2 P. & D. 401. L. J. 90, Where a testator, soon after ' Supra, Part II. c. lO; O'Neall v. executing his will, being doubtful Farr, I Rich. (S. C.) 80; x Pick. 546. whether he had signed his surname 547; Rich v. Gilkey, 73 Me. 595; Bat- rightly, caused it to be erased, and ton V. Watson, 13 Geo. 63. And see signed his full surname in the presence § 427 a. of two other attesting witnesses, this * Harris v. Berrall, I Sw. & Tr. 153; was held no revocation. Frear v. Wil- Scruby v. Fordham, I Add. 74; supra, liams, 7 Baxt. 550. Part 11.; Benson v. Benson, L. R. i P. « Stat, i Vict. c. 26, § 20; Mass. Pub. & D. 608; 3 Hagg. 754; Smithwick v. Stats. (1882) c. 127, § 8; Stimson Am. Jordan, 15 Mass. 115; Forman's Will, I Stat. Law, § 2672. Tuck. (N. Y.) 205; 4 Barb. 28; AUison 409 § 386 LAW OF WILLS. {PART IV. Frauds, which used no language of the sort, that an act done without the mental intention to revoke was wholly ineffec- tual.^ In short, the physical act itself is not conclusive, but open to explanation. § 385. Will destroyed, etc, unintentionally, to be established as it existed. — It follows that if a will were duly executed by a testator while of sound mind and acting freely, and after- wards destroyed by him or some one else, without the free and rational animus revocandi on the testator's part, such will may be established in probate on secondary proof of its contents ; ^ and a like rule applies to lost or missing wills. But the presumption arises, that the will under such circum- stances was intentionally revoked by the testator while he lived and was competent to revoke, and this presumption must first be overcome.* Even where a testator tears up his will or codicil under the mistaken impression that he has not properly executed it, and orders a new and similar writing made out, but dies before executing it, the torn instrument is admissible to probate on the ground that an intent to revoke was wanting.* § 386. Effect of Intention to revoke ivhere the Act does not correspond. — On the Other hand, if the maker of a will, intending to revoke it, destroys a paper which he is fraudu- lently induced to believe is the identical instrument when it is not, and continues in the belief that his will has been re- voked, never again recognizing it nor knowing of its exist- ence, this has been held a legal revocation.^ Particularly does this hold true of a testator whose infirmity makes him dependent upon those about him by whom his confidence is abused ; and the sufficient act being applied to the wrong paper, the intent operates legally upon the true one.® But il Wms. Exrs. 147; Clarkson v. Barb. 119. And see Birks ii. Bitks, 34 Clarkson, 2 Sw. & Tr. 497; Gow. 186; L. J. 90. Jackson v. HoUoway, 7 Johns. 394. ' See § 402, post. 2 Scruby v. Fordham, i Add. 74; * Thornton's Goods, 14 P. D. 82. Brand Re, 3 Hagg. 754; Batten v. Wat- ^ Smiley v. GamblU, 2 Head. 164. son, 13 Geo. 63; Voorhis v. Voorhis, 50 « Pryor v. Coggin, 17 Ga. 444; Hise 410 CHAP. I.J REVOCATION OF WILLS. § 387 where the infirm testator directs some one else to destroy, and nothing is destroyed at all, no sufficient act appears upon which the court can fasten the intent to revoke ; and his supposition that the direction was obeyed avails nothing.^ Whether the testator's bare mistake, however, not induced by the fraud of others, can cause a paper to be revoked which he did not actually revoke, may well be doubted ; as if one should carelessly burn up some letter by himself, suppos- ing it his will, and die without discovering his error. For it is straining a rule, out of regard to justice, to detach the intent from the act : the general maxim being, that no inten- tion to revoke can constitute a legal revocation unless the sufficient statute act accompany it.^ So, too, courts have not felt justified in setting a will aside on the plea that the undue influence of others prevented the testator from revoking it when he desired to ; ^ though possi- bly they would in a heinous case, whether of coercion or fraud. And it should be borne in mind, moreover, that one may ratify, republish, or keep in force the will which he once meant to revoke but did not, by his own active or passive conduct after the coercion is removed or the fraud or mistake discovered ; * for if one's purpose is to revoke, he should pur- sue that purpose consistfently to the end. § 387. Burning, Cancelling, etc., must be by Testator him- self, or under his Direction, etc. — Inasmuch as revocation involves intention, the inference arises that the physical act must be performed by the testator himself or under his sanc- tion and direction. Nor is legislation silent on this point : for the Statute of Frauds expressly requires the burning, cancelling, tearing, or obliterating to be done "by the testa- tor himself, or in his presence and by his directions and V. Fincher, 10 Ired. 139; Blanchard v. 25 N. Y. 9; Blanchard v. Blanchard, Blanchard, 32 Vt. 62. 32 Vt. 62; cases post. 1 Malone v. Hobbs, I Rob. 346; 3 * Floyd v. Floyd. 3 Strobh. 44; Smith Leigh, 32; Runkle v. Gates, 11 Ind. 95; v. Fenner, I Gall. 170. Mundy v. Mundy, 15 N. J. Eq. 290; * Taylor v. Kelley, 31 Ala. 54; Lamb McBride v. McBride, 26 Gratt. 476. v. Girtman, 26 Geo. 625; O'Neall v. And see next section. Farr, I Rich. 80. 2 See Delafield v. Parish, I Redf. l; 411 § 387 LAW OF WILLS. [PART IV. consent" ;i and the substance, if not the phrase, of this requirement appears in later enactments, English and Ameri- can.2 Both presence and direction of the testator being thus essential where the act is performed by another, a will is not legally revoked, though destroyed by the testator's own order, if burned or torn where he did not or could not see or take cognizance of the deed done.^. Destruction of the instrument, then, by a third party with- out the testator's permission or knowledge, whether before or after his death, would be an invalid, if not a criminal act.* Ratification by the testator of such a destruction is not readily to be inferred.^ On the other hand, no fraud is com- mitted by any person in destroying or assisting to destroy a will by the genuine express direction and in the presence of the testator, though apart from all others ; for every testator has the right, while in the full possession of his faculties and acting freely, to destroy his own will at any time or in any manner he pleases, be it secretly or openly.® If a person, confided in, disobeys the testator's direction, though deceitfully, and preserves the will intact, no legal revocation takes place, for nothing is destroyed or cancelled.^ But deceit and disobedience to the extent of destroying a paper artfully substituted for the will in question in the testa- tor's presence and with all the precision required by law may operate differently ; and the testator, remaining ignorant of the fraud and free from fault on his own part, the legal act done to the wrong paper has been treated as though done to 1 Supra, § 381. the will to be established by secondary * JHd. proof. North He, 6 Jur. 564; I Rob- * Dadd, Goods of, De». & Sw. 290; ert. 661. Dower w. Seeds, 28 W. Va. 113. * Mills v. Millward, 15 P. D. 20. * Haines v. Haines, 2 Vern. 441 ; Quare whether ratification under such Bennett v. Sherrod, 3 Ired. 303. See circumstances would constitute a legal New York code, which treats such acts revocation within the statute. lb. as "fraudulent,'' Early v. Early, 5 » Timonw.Claffy,45 Barb.438; § 388. Redf. 376. A testator cannot delegate ' Supra, § 386; Hylton v. Hylton, I his power of revoking a will by insert- Gratt. 161 ; 11 Ired. 95. And see ing in it a clause which confers on Mundy v. Mundy, 15 N. J. Eq. 290; another an authority to destroy it after Graham v. Birch (Minn.) 49 N. W. his death. The effect of such destruc- 697. tion would be, to permit the contents of 413 CHAP. I.] REVOCATION OF WILLS. § 389 the right one.^ Where the testator asks the custodian of his will to bring the paper to him, intending to revoke it, and the custodian neglects or refuses to comply, no revocation is con- stituted ; 2 and the same may be said where he sends any one else for the will and it is not brought to him.^ Nor is the testator often without resource in such a case ; for he may still revoke his will by some other method.* § 388. No 'Witnesses Necessary to the Burning, Cancelling, etc. — It is not necessary that the burning, cancelling, tear- ing, or obliteration of the will by the testator be attested by witnesses. Indeed, a leading advantage which such means of revocation are supposed to afford consists in the secrecy permitted to the lawful disposer.^ But various American codes require proof by at least two witnesses where the act is done by some other person under the testator's direction.^ § 389. Destruction of a Will by Burning, Tearing, etc., illus- trated: English Cases. — The utter destruction of one's will by burning, tearing, and the like, the intent accompanying the act, supplies the simplest instance of revocation. Destruc- tion is the only mode favored in this connection by the Eng- lish Statute of Victoria and many American codes ; deface- ment being deemed too dubious an act. Not only burning or tea.ring would satisfy such enactments, but cutting, throw- ing into the water, steeping in acids, and other equivalent destructive acts.^ I Supra, § 386; Smiley v. Gambill, a revocation in writing, in presence of 2 Head, 164; Hise v. Fincher, 10 Ired. witnesses. And if an extreme case 129. should show that by daring force or " Laycroft v. Simmons, 3 Bradf. 35. fraud, and against his protest, the means * In Mundy v. Mundy, 15 N. J. Eq. of revocation were utterly denied him, 290, a testator asked his wife to bring so that he could not execdte his inten- his will from the place of deposit, in- tion, the court would pronounce, per- tending to burn it. She afterwards in- haps, according to his wishes. duced him to suppose that she herself ^ Timon v. Claffy, 45 Barb. 438. had brought and burnt it. It was held » Stimson Am. Stat. Law, § 2672. that there was no revocation, the will ' Wms. Exrs. 134; Hobbs v. Knight, not having been burnt. I Curt. 768; Clarke v. Scripps, 2 Rob. * A testator, finding himself thus 563, 570, 575. thwarted, may execute a new will, or § 3^9 LAW OF WILLS. [PART IV. But the difficulty to solve, is whether statutes like these exclude, by inference, whatever destruction of the instrument falls short of annihilation or at least of rendering original proof of its contents impossible. Some have argued for this narrow construction. But the English courts of probate rule less strictly; and where the testator has cut out his own name from the will with , clear intent to revoke it, this act is held a sufficient destruction ; for an essential part of the will, an integer, is thereby destroyed, nor does the statute expression "otherwise destroying" necessitate a destruction of the entire instrument.^ So may cutting out that part of the will which one would call the principal part constitute a sufficient revocation, if the full intent accompanied the act ; ^ or even tearing off the seal animo revocandi, though a seal is admitted to be no essential part of a will.^ But to cut out a particular clause or the name of a particular legatee or some minor part of the will, imports only a revocation pro tanto.^ So too the mutilation of a will by cutting out the executors' clause has been treated as simply revoking the choice of exe- cutors.^ And while pasting a blank paper may amount to destruction, total or pro tanto as the case may be, inasmuch as the original writing becomes effaced in consequence, the idea of "destroying" under the Statute of Victoria, is not 1 Hobbs V. Knight, i Curt. 768. It sheets and strike his pen through the is here observed by Sir Herbert Jenner last signature; the effect being to make that, by parity of reasoning, if the the instrument different in execution names of the witnesses were taken from what the attestation clause de- away by the testator animo revocandi, scribed. it would be a good destruction of the 2 Williams v. Jones, 7 Notes Cas. 106; will under the act. The inclination of GuUan Re, i Sw. & Tr. 125; 26 Beav. his opinion was, upon the same princi- 64. pie, that if the testator's signature had ^ Yncs v. Powell, 3 H. & N. 341. been burnt or torn out, or even so care- This decision of the Court of Exchequer fully obliterated as to be perfectly illeg- went upon the ground that the attesta- ible, this act, accompanied by the suita- tion clause declared this instrument to ble intent, would constitute a revocation be under seal, and the seal being torn within the Statute of Victoria. See also off, the will ceased to be the instrument Sir John Dodson in Clarke v. Scripps, which the testator purposed to execute 2 Rob. 563; 5 Notes Cas. 390. and publish. In Williams v. Tyley, Johns. 53°. it * Giles v. Warren, L. R. 2 P. & D. was held a sufficient destruction for one, 401 ; Woodward Re, L. R. 2 P. & D. who intended revoking, to tear off the 206. signatures he had made to the first four 6 Maley's Goods, 12 P. D. 134. 414 CHAP. I.] REVOCATION OF WILLS. § 39I realized by acts which fall short of effacement.^ Indeed, the English cases which construe that enactment, rely upon some act of destruction, which so far as it goes utterly effaces, and in order to revoke the whole will destroys some integral part essential to the entirety of that will.^ And of course the full intention' to revoke should accompany the act, or no such con- sequence will follow.^ § 390. The Same Subject. — Under the Statute of Frauds, however, a very slight act of burning or tearing might suffice for revocation if a genuine intention accompanied the act.* But some burning or tearing, if only of a small part, or so as to scorch or mutilate the paper, was needful ; mere intention or attempt did not fulfil the statute ; and yet it mattered not that the writing was still legible in spite of the act, or the maker's disposition traceable by putting the torn pieces of his will together.® Where the testator arrests his own design before the act is completed, revocation does not take place.® § 391. Cancelling, Obliterating, etc., illustrated: English Cases. — A more equivocal act is the defacement of the instrument by cancelling, obliterating, and the like : modes of revocation sanctioned by the Statute of Frauds, but discarded because of their uncertain tenor, in the later enact- ment of Victoria. And here let us remark, that by that earlier legislation such acts as tearing off or effacing one's signature or seal at the end of the will were the common expression of a testator's intention to revoke, and required no 1 Horsford, Goods of, L. R. 3 P. & D. clause makes those signatures an inte- 211. gral and necessary part of the vpill. 2 Tearing off signatures and attesta- Harris Re, 3 Sw. & Tr. 485. Scratching tion has this effect. Lewis Re, I Sw. & out signatures with a knife is a revo- Tr. 31. And where the will consists of cation within the Statute of Victoria, various sheets, each of which is signed Morton's Goods, 12 P. D. 141. and attested, it is the signature and = Cheese v. Lovejoy, 2 P. D. 251. attestation at the end whose destruction * Bibb v. Thomas, 2 W. Bl. 1043. is disastrous. GuUan Re, i Sw. & Tr. ^ Doe v. Harris, 8 Ad. & El. I; I 125; 26 Beav. 64. But destroying the Jarm. 130. principal part of the will may prove " Doe v. Perkes, 2 B. & Aid. 489; equally so. lb. And so with cutting Colberg Re, 2 Curt. 832; Elms v. Elms, off signatures on earlier sheets, where I Sw. & Tr. 155. something in the will or the attestation § 391 I"AW OF WILLS. [part IV. such strain of interpretation as 'English courts must now apply ; ^ for if the act was not " destroying," it might at all events be reckoned as cancelling or obliterating the will. Drawing lines over the testator's name was likewise a suf- ficient cancellation within the earlier act.^ Behind such defacement perhaps might be read the entire will- as origi- nally executed, in all its integrity ; and though the testator left the instrument among his papers at his death, cut about and through, without any real mutilation of what was written therein, the purpose of cancelling, obliterating, or destroying made such revocation legally sufficient.^ In fact, the prin- ' ciple appears to have been well established in the English courts before 1837, that if the testator intended to revoke by cancelling or obliterating, not to say destroying, his will, and he did all he meant to do by way of expressing that purpose, no literal cancellation or obliteration, and certainly no efface- ment, was necessary.* Where a pencil was used for cancelling, instead of a pen, the courts regarded the act 2l% prima facie deliberative, rather than final. But a final purpose to revoke might be shown^ and if so, the cancellation effected that purpose.^ As for obliteration under the Statute of Frauds, the effect followed usually the intent ; and here the problem was to determine whether such acts as drawing the pen over part of the will amounted to a partial or total revocation, if intended for revo- cation at all.^ This whole subject bristled with practical difficulties, and we need only observe that, under the statute, some act must be done to the paper; that the revocation may be partial or total ; ^ and that cases have refined much upon obliterating the material part of a clause or sentence, 1 Scruby v. Fordham, i Add. 78; Re, L. R. 2 P. & D. 256. Contra, Lumbell v. Lumbell, 3 Hagg. 568. Cf. Tomlinson's Estate, 133 Perm. St. 245, supra, § 389. which presumes nothing more deliber- 2 2 Cas. Temp. Lee, 34. But cf. ative in cancelling with a lead pencil Grantley v. Garthwaite, 2 Russ. 90. than with ink, though the will was » Moore v. Moore, i Phillim. 357. written in ink. * I Wms. Exrs. 133. 6 j jarm. Wills, 134, 135. SMence v. Mence, 18 Ves. 348; 'i Jarm. Wills, 134, 135; Sutton w. Francis v. Grover, 5 Hare, 39; Hall Sutton, Cowp. 812. 416 CHAP. 1.] REVOCATION OF WILLS. § 393 such as the devisee's name, whereby the devise or gift becomes ipso facto revoked.^ § 392. The Same Subject. — On the other hand, no mere defacement or crossing out of the testator's signature, so as to leave it still legible, will satisfy the present Statute of Vic- toria; for this constitutes no destruction within the act.^ And if a will should show the testator's signature struck through with a pen ^nd another signature written and left, the natural presumption would be that the original erasure was not made with the intention to revoke at all, but was connected in some way with the final execution by the signa- ture substituted.^ Cancelling or mere obliteration constitutes no revoca^tion, as the English law now stands ; but the words as originally written must, to one who looks at the will, be quite illegible;* '§393. BqrniDg, Tearing, Csmcelling, etc., illustrated: Ameri- can Cases, -r- Allowing for differences of local legislation, the A:merican doctrine closely resembles that of England ; and as a State enactment conforms to the looser or more rigid policy, so must he the course of judicial precedents in that jurisdie- tion. In States which permit of cancelling and obliterating, as well as destruction, tearing off the seal of a will (needless as a seal may be for its proper execution) constitutes a revo- cation when the intent accompanies the act.^ Drawing line? over the testator's name animo revocandi amounts further- iSeeSwintoni'.Bailey,4App,Cas.7o; The policy of i Vict. c. 26 is further Larkinsz/.Larkins.sB. &P. 16; Mence enforced by § 21 of that enactment, V. Mence, 18 Ves. 350. The discussion which declares that no obliterationj etc„ of a gift of this kind, where the clause of a will, after its execution, shall have cancelled or obliterated designates vari- any effect, " except so far as the words ous parties in interest, invites some very or effect of the will before such alteration nice distinctions. See i Jarm. Wills, shall not be apparent," etc., unless exe- 134, 135, and cases cited. cuted as a will. See c.2,ppst, as to alter- 2 Benson v. Benson, L. R. 2 P. & D. ation of a will, where this subject is 172; Stephens v. Taprell, 2 Curt. 458; discussed more fully. 4 Notes Cas. loi. A writing declaring an intentipn to » King, Goods of, 2 Robert, 403. revoke, and executed as a will, may 1 Stephens ». Taprell, 2 Curt. 458; I supplement a doubtful erasure. Gps- -Jarm. Wills, 142; 4 Notes Cas. loi; ling's Goods, 11 P. D. 79; § 404- Brewster Re, 6 Jur. N. S. 56. * Avery v. Pbdey, 4 Mass. 460; John- 417 § 394 i-AW OF WILLS. [part IV. more to revocation by cancelling, even though his signature be still legible.i And tearing a will into several fragments will suffice, though the fragments be gathered up afterwards.^ Cancellation by drawing lines across is an equivocal act, however, and may be explained by circumstances and proof of intent.3 So again, must the intention of the testator decide whether an obliteration of the will is a revocation or not.* A careful interlineation cannot be pronounced an " oblitera- tion " within the wills act.^ Nevertheless, cancelling or obliterating are acts very liberally construed at the old law ; and as distinguished from destruction or defacing the writing so as to leave it illegible, the act implies that the instrument is still preserved in legible shape, but with something upon it which indicates that the will (or at least some portion of it, if revocation be pro tanto) has ceased to stand according to the testator's original intention.® § 394. The Same Subject. — Slight acts accompanied by the suitable intent, are often permitted to suffice for this sort of revocation. Under our earlier legislation, it is ruled that son V. Brailsford, 2 Nott & McC. 272. see Frear v. Williams, 7 Baxt. 350. In White's Will, 25 N. J. Eq. 501, there Erasures which do not materially affect was obliteration of signatures, besides the meaning or force of the will have not tearing off the seal. the effect of legal revocation. Clark v. Where a will is signed several times, Smith, 34 Barb. 140. and also at the end, it is the last whose ' Dixon's Appeal, 55 Penn. St. 424. erasure repeals the will. Evans' Appeal, ^ Evans' Appeal, 58 Penn. St. 238. A 58 Penn. St. 238. will may be cancelled by an act done to 1 Baptist Church v. Robbarts, 2 Penn, the instrument which stamps upon it an St. no. Even the drawing of pencil- intention that it shall have no effect, marks over the signature is held suffi- though the act be not a complete obliter- cient in WoodfiU v. Patton, 76 Ind. 575. ation or physical destruction. " Obliter- 2 Sweet V. Sweet, i Redf. 451. Here ation " in the wills act is not confined to the intended revocation was clear, and effacing letters or words so that they the act was held complete, though the cannot be read. And " cancellation " testator's wife gathered the fragments of a will means any act done to it which again, unknown to him, and sewed them in common understanding is regarded as carefully together, so that the will was cancellation when done to another in- legible. And see Evans' Appeal, 58 strument. Itmustbe an act done to the Penn. St. 238; 133 Penn. St. 245. vriW itself animo cancellaniii. lb. ' Bethel v. Moore, 2 Dev. & B. 311; Obliteration, etc., of the envelope of Smock V. Smock, 1 1 N. J. Eq. 256. a will is not effectual, the paper itfeelf * Jackson v. HoUoway, 7 Johns. 394; remaining intact. Grantly v. Garth- Means V. Moore, 3 McCord, 282. And waite, 2 Russ. 90. 418 CHAP. I.] REVOCATION OF WILLS. § 395 the slightest tearing or burning, even of an unnecessary part of a will, accompanied by evidence alimtde of the intention to revoke, is a revocation.^ The destruction or cancelling of a principal part of the will may serve for the whole.^ But a will cannot be revoked by any mental intention of the testa- tor, even though such intention be evidenced by a written statement, unless the statutory forms, whatever those may be, are complied with.^ Apart from that consideration, the broad inquiry must be, what, in view of the surrounding circumstances, the testator really intended ; and revocation, whether of the whole instrument or a part, should be deter- mined accordingly.* Such is the American doctrine, and it differs not from that of the mother country. But some of our latest American enactments are quite as rigorous as that of Victoria, in confining simple revocation of the instrument itself to acts whose nature is to destroy. Thus, under the Iowa Code, which provides that a will may be revoked by destruction or by cancellation with intent to revoke, if the cancellation is witnessed in the same manner as a will, it is held that a will is not revoked by interlining or drawing a scroll through the signature so as to leave it still legible. For, admitting that to destroy is not necessarily to annihilate, within this statute, there can be no destruction unless the essential words destroyed are rendered illegible ; and as for merely cancelling, by anything short of this effect, it cannot operate unless witnessed like a will.* § 395. Incomplete Burning, Tearing, Cancelling, etc. — No greater difficulty is presented in this connection than that of ^Dan V. Brown, 4 Cow. 483; 6 lb. » Delafield v. Parish, 25 N. Y. 9; 377; Johnson v. Brailsford, 2 Nott & M. Blanchard v. Blanchard, 32 Vt. 62. 272; 4 Kent Com. 582. * See Cook Re, 5 Pa. L. J. i, where 2 In Muh's Succession, 35 La. Ann. the testator tore off his name at the foot 394, four-fifths of the legacies were of a codicil, and this was held, in view erased with the pen, but still legible; the of the proof, to revoke the codicil only, clause appointing executors was erased and not the will on the reverse side of" more completely, and the testator's sig- the paper, though some words which nature was left hardly legible at all. In the will contained were carried away. , the margin were several additions, appar- And see cases cited in preceding sec- ently designed for a new will. It was tion. held the will was revoked. * Gay v. Gay, 60 Iowa, 415. 419 § 39S LAW OF WILLS. [part IV. determining the legal effect of an inchoate or inconiplete act of burning, tearing, cancelling, etc., according as the local statute prescribes. But next to considering the limits which the local statute may have set to the act of revocation, the cardinal inquiry relates to the intention which appears to have accompanied the testator's act. Moreover, as every court means to decide justly, and according to the real merits of the controversy, where it may, the inchoate or incomplete act is helped out if possible, when the fraud of others im- paired its efficiency ; but otherwise, when the testator alone was at fault in not doing all that the court asked of him to make his act positive and final. Thus, to take that range of acts most widely permitted by legislation under this head, namely, burning, tearing or other- wise destroying. Under the Statute of Frauds, a case arose where the testator ordered his will to be brought to him ; he opened it, looked at it, gave a wrench so as nearly to tear it, then rumpled it up and threw it contemptuously upon the fire. But the will fell off ; and as it lay where it must soon have been burnt, a woman in the room picked it up and put it in her pocket.^ The will was produced for probate, after his death, slightly singed and with the writing still legible. It was held in this case that there was a sufficient " burning or tearing," within the statute, and that the revocation was complete.^ Yet, as the authorities agree, there must be an actual burning or tearing, etc., to some exent in order to ctMistitute a revocation ; ^ and accordingly, where another testator, who also intended to destroy, threw his will upon the fire, from which some one rescued it in a similar manner, .but with only a comer of the envelope burned, revocation was held incomplete.^ The courts appear to have reconciled these decisions by drawing the line between scorching the surface of a will and burning only the envelope which contains it ; * but such a line must be physically an exceedingly fine one.^ We ap- ' Bibb », Thomas, 2 W. Bl. 1043. this same distinction in their contrast of •2 Supra, § 389. these cases. See i Wms. Exrs. 137. ^ Doe V. Harris, 6 Ad. & El. 209. ' The cases cited under the earlier ^ English text-Trriters seem to take statute do not stand upon a " destruc- 420 GHAP. I.] REVOCATION OF WILLS. § 39,6 prehend that other circumstancss really strengthened the present distinction and caused the court to stretch the act in the one case so as to correspond with the testator's intent, while in the other, the intent was not positive enough to bear out the act. In the former, the testator meant that his will should be destroyed, and imagined that he had completed the act ; the woman who rescued the will deceived him in pre- serving it.^ But in the latter, the testator saw his will snatched from the fire, and parleyed with the rescuer ; that person promised to throw it into the fire again, but did not ; so that the case resolved itself into the disobedience of a testator's direction to destroy, a preservation of the will in breach of trust. Such conduct constitutes no legal revocation of a will ; 2 and a careful testator, fully resolved to carry out his intention, would have watched to see his direction obeyed and the will burnt before his eyes. An incomplete or incho- ate act fails utterly when the intent was incomplete ; nor can another's fraud be set up which the testator's own fault pro- moted.^ § 396. The Same Subject. — From other instances in the reports, the effect of complete intention may be contrasted tion " to the extent of rendering essen- American cases appear to justify our tial words illegible. How seldom, then, line of distinction. Thus, where the would it occur that if the envelope was maker of a will threw it on the fire, burned, the instrument would not at meaning to destroy and revoke it, and least show signs of being scorched. it was burned through in three places 1 Bibb V. Thomas, 2 W. Bl. 1043. without interfering with the writing, and * Runkle v. Gates, 11 Ired. 95; i the will was then rescued and preserved Gratt. 161; Boyd w. Cook, 3 Leigh, 32; against his intention and without his supra, § 387. knowledge, the court construed this into » Doe V. Harris, 6 Ad. & El. 209. a sufficient revocation. White v. Cas- Had the person, in this case, who ten, i Jones L. 197. And see Mundy v. snatched the wiU from the fire substi- Mundy, 15 N.J. Eq. 290. But Graham tuted another paper adroitly, and burnt v. Birch, (Minn.) 49 N. W. 697, dis- that instead, the testator using such vigi- countenances the idea of a formal de- lance against the deception as his infirm- struction which the fraudulent device of ities permitted, there would, J^wW^.have another frustrated, where in fact the been a legal revocation. Stfe Pryor v. testator was careless and the will was Coffin, 17 Geo. 444; -SmUeyW. Gambill, put into a stove where no fire was lit 2 Head, 164; Blanchard v. Blanchard, for two hours afler. 32 Vt. 62; Hise V. Fincher, 10 Ired. 139; supra, § 387. 421 § 39^ LAW OF WILLS. [PART IV. with incomplete where the act was equivocal. One man tears up his will under a mistaken impression that its pro- visions are of no effect ; then recovering himself he gathers the pieces together once more, and preserves them carefully, meaning that the instrument shall serve its original purpose.^ Here it has been held no complete revocation ever took place ; and we may imagine similar cases, as where one's will is accidentally torn while destroying his old letters, and the testator takes the fragments from • the waste-basket, and re- stores the paper. But another man tears his will, intending to destroy it ; and his wife or adult child collects the pieces and puts them together again neatly, without his knowledge ; here there is revocation, for though the fragments were not minute, the animus revocandi was complete, and fraud must not prevail against it.^ The minuteness of the tearing is of secondary consequence ; though without some tearing revo- cation would not have occurred. In an English case which turned upon the Statute of Frauds, the testator, under a sudden impulse of anger against one of the devisees under his will who had provoked him, took the paper into his hands to destroy it. He tore the will twice through, when a bystander arrested his arm, and, the offending devisee submitting on the spot, the testator grew calm and proceeded no further. He fitted the pieces together, and finding not one word obliterated, remarked that it was good it was not worse. Upon this evidence a jury found that the act of destruction intended had never been completed, and the Court of King's Bench sustained the ver- dict. No revocation, in short, had taken place, and the will remained in full force.^ A later case, where the testator tore his will almost in two, but was stopped by the protest of others in the room, who told him that it would be dangerous to destroy one will before he had made another, was decided on the same principle.* iGileso.Warren.L. R. 2P.&D.401. * Elms v. Elms, I Sw. & Tr. 155. 2 Sweet V. Sweet, i Redf. 451. And see Giles v. Warren, L. R. I. P. & * Doe V. Perkes, 3 B. & Aid. 489. D. 401. And see Colberg, Goods of, 2 Curt. 832; Giles V. Giles, I Cam. & Nor. 174. 422 CHAP. I.] REVOCATION OF WILLS. § 397 In all such cases it is of much consequence that the testa- tor treats the burned or mutilated instrument as valid, for the rest of his life ; for this circumstance indicates that a final and full revocation was never intended by him. And we apprehend that under strict statutes like that of Victoria, which require an act of " destroying," there must be some injury committed to the extent of destroying the entirety of the will or rendering a material part thereof illegible, else no revocation will occur.^ § 397. Revocation of a Part only of a 'Will by Destruction. — An analogous difficulty in the doctrine we are discussing relates to acts of revocation pro tanto. The English Statute of Victoria, while insisting upon some sort of destruction; appears to allow part only of the will to be revoked in that manner.^ Under the older law, as we have seen, one had a very liberal discretion to revoke his will in part, and annul some particular devise or bequest, if such was his actual intention, by obliterating or cancelling a particular clause, or even material words therein, the rest of the will standing as before, agreeably to his supposed intent.^ Great license prevailed, in consequence, this privilege of the testator ex- tending to altering or interlining the original instrument at pleasure so as in effect to make a new will, and that with 1 English writers consider it difficult 2 Rob. 593, 567; Christmas v. Whin- to state at present any precise extent to yates, 3 Sw. & Tr. 81. "No will or which the burning, tearing, etc., must codicil, or any part thereof, shall be go in order to justify constructive revo- revoked otherwise than, etc., or by the cation, under the new Statute of Wills, burning, tearing, or otherwise destroy- in an equivocal case. I Wms. Exrs. 137. ing the same." i Vict. c. 26., § 20. Coleridge, J., considered this point in But as to the effect of obhteration in Doe w. Harris, 6 Ad. & El. 209. "There part, see language of ib. § 21 ; c. 2, post. must be such an injury, with intent to ^ Supra, § 391 ; Swinb. pt. 7, § 16, pi. revoke," he observes, " as destroys the 4; Sutton^. Sutton, Cowp. 812; Scruby entirety of the will; because it may then v. Fordham, \ Add. 78; Larkins v. Lar- be said that the instrument no longer kins, 3 B. & P. 16; Swinton v. Bailey, 4 exists as it was." This view is supported App. Cas. 70. This law applied both to by Hobbs v. Knight, i Curt. 768, and devises of land and written wills of per- the other cases cited, supra, § 389. See sonal property. I Wms. Exrs. 143, and also Gardiner v. Gardiner (N. H.) 19 cases supra. The Statute of Frauds Atl. 651. speaks of revoking a devise or "any 2 1 Wms. Exrs. 129; Clark v. Scripps, clause thereof." Supra, § 381. 423 §397 Ji-AW OF WltLS. [part IV. vfefy little forthality.i Under the Statute of Victoria this practice was checked by an express provision that ob- literations, interlineations or other alterations should be executed with testamentary formalities ; not to add its con- finement of revocation to acts of destruction.^ Yet it would appear that one may still revoke prd tanto under that act by tearing up or burning one or more sheets of his will (suppos- ing it written ort several sheets), as he was permitted to do by the Statute of Frauds, and still earlier by' the common law.^ This doctrine of partial revoeationj even under the re- strictions adopted by later English legislation, is not greatly favored in American codes at the present day. Many of our local enactments, it is true, once pursued the language of 2g Car. II., so as to admit of revocation prd tanto ; but of late years that language has undergone a change of expres- sion in leading States. Various ccideS now drop all reference to revocation in part ; and the general policy intimates that such changes of disposition require an instrument executed with all the formalities of a will* The New York statute provides expressly that no will shall be revoked or altered except by another will or " unless such Will be burnt, torn, cancelled, obliterated or destroyed," etc. ; and this is lately construed not to admit of obliterations in part, with a revoca- tion in effect /r(7 tanto^ In other instances our courts have disavowed the earlier common law doctrine on this point.^ ^ Mence v. Mence, i8 Ves. 348; Ra- § 8. But this omission of statute refer' vensdroft v. Hunter, 2 Hagg. 68; l ence to revoking " in part " does not, as WmS. ExrSi 143. Drawing a pen across the Massachusetts statute reads, exclude the name of a devisfee or legatee may a partial revocation in this manners thus revoke the devise or bequest. Bigelow v. Gillott, 123 Mass. 102. The Mence v. Meftce,- ib. But it is otherr context, were it thus construed, would ■\*ise vtrhere such name occurs several exclude the right to revoke in part by times, and the testator draws his pen a oodiciL Ib. across in some places and Ifeaves the * Lovell v: Quitmdh, 88 N. Yi 377; name Standing in otherSi Martins v. 25 Hun, 537. This overrules McPher- GardiHer, 8 Sim. 73. son ii. Clark, 3 Bradf. 96. And see 2 r Vict. c. 26, § 21; ib. § 20. trescott Re, 4 Redf. 178; c. 4, post; » I Wms. :Sxrs. 128; 141, 143; Scruby i Demarest, 484; Stimson Am. Stah V. Fordhatn, i Add. 74; 3 Hagg. 5521 Law, § 2672. Aftd see next c. 6 Eschbach v. Collins, 61 Md. 478, 4 See Mass. Pub. Stats. (I1882) c. 12^, The intended obliteration of a part with- 424 CHAP. I. J REVOCATION OP WILLS. § SgiS But American cases may be found of earliei' or later date, where, conformably with the local statute then operating, a partial revocation with suitable intent has been applied to the cancelled portion of the will, leaving the residue unchanged.^ § 398. DifSculty where the Revocation depended upon Another Act. — Another difficulty suggested in this connec- tion relates to the effect of destroying or cancelling where the testator meant that his act should depend upon some other efficient act ; as where a second will was to be substituted for the will revoked. Here the courts have tried to pursue the testator's intention and accept its guidance; a course which is often the harder for the reason that a testator's mind has not grasped the exigency at all. In a leading English case a testator prepared his second will and then can- celled the first ; but the second will proved void for non- compliance with the statute forms of execution ; and the court accordingly ruled that the first will remained in force, inasmuch as the revoked act, which depended upon the validity of the substituted paper, never took full effect.^ Mere it happened, however, that the second will varied not materially from the first ; in fact, making a change in the name of one of the trustees, but not changing the disposition of the estate. But later courts, while recognizing the same principle, extended its operation much farther ; defeating thereby, in some instances, the testator's presumable prefer- ence, as it would seem, for the sake of establishing a perma- nent principle.^ And the principle appears to be this : that out the intention of revoking the whole He, 22 N. J. Eq. 463; Bigelow v. Gil- will, cannot constitute a full revocation, lott, 123 Mass. 102; Myriok Prob. 128. Means v. Moore, Harp. (S. C.) 314. Tomlinson's Estate, 133 Penn. St. The Alabama statute does not permit 245, is an extreme case, which not only of a partial revocation. If the name of permits of the partial revocation of a one of the legatees appears erased from will under the local statute, but allows' the will offered for probate, this may be legacies to be thus cancelled in a will offered to prove that a total revocation written out in ink by mere lead-pencil was intended; but not a partial onei alterations, without, of course, oblitera- Law ». Law, 83 Ala. 432., ting what was originally written. 1 Brown's Will, I B. Mon. 56; Bor- ^ Onions w. Tyter, 2 Vern. 742. den V. Borden, 2 R. I. 94; Kirkpatrick * See Burtenshaw v. Gilbert, Cowp. § 398 LAW OF WILLS. [p ART IV. where the cancelling or destroying his first will was made by the testator to depend upon the validity of his second will or substitute, and the second will or substitute cannot legally take effect, such cancelling or destroying fails to operate as a revocation, even though the revoking act would per se have sufficed. But this rule appears to be confined in modern practice to cases in which the testator evidently meant his revocation to depend upon the validity of the substituted will and where the two dispositions are closely connected, the one to make way for the other. Revocation, as an immediate and positive act, cannot be so dependent for its validity upon some ill- defined purpose which the testator cherishes to make another and a different will hereafter. And we may regard it as a principle that any will which is deliberately destroyed with- out accident or mistake, the full present purpose to revoke accompanying the act, becomes revoked, even though the testator meant to make a new will at some future time as its substitute, but omitted to do so.^ For the mere indefinite purpose to make another will hereafter does not prevent an immediate revocation from taking effect.^ And in general, a present revocation is quite consistent with some purpose to execute hereafter another will, which purpose is never really carried into effect ;^ for here the law of intestacy appears to supply the testator's wishes more appropriately if a hiatus is left than the scheme of disposition which the testator had himself recalled. Nor does the cancelling of a new will restore the former one which has been finally cancelled and revoked.* Other instances may be adduced in this connection where dependent acts of revocation fail because that which was depended on gained no efficacy. As where it appears that 52; Perrot v. Perrot, 14 East, 440; ' Brown v. Thorndike, 15 Pick. 338; Thynne v. Stanhope, i Add. 53; i Johnson v. Brailsford, 2 Nott. & M. Wms. Exrs. 148-152; I Eq. Cas. Abr. 272. 409; 3 ib. 776. * 4 Kent Com. 531. But see c. post, 1 Semmes v. Semmes, 7 Har. & J. as to republication; Marsh v. Marsh, 388; I How. (Miss.) 336. 3 Jones L. 77. 2 32 L. J. Prob. 202; Williams v. Tyley, Johns. 530. 426 CHAP. I.] REVOCATION OF WILLS. § 399 the testator did not intend to die intestate ; but made altera- tions in his first will, as preparatory to executing a new one, and not for a final cancelling of the former ; and his death prevented his second will frOm being executed.^ But if the second will or substitute be legally prepared and duly exe- cuted, so as to take the place of the cancelled instrument in probate, revocation is not hindered by a failure or disap- pointed operation of the second disposition through a legal construction of its terms.^ Prudence suggests, on the whole, that a testator who prefers his old will to stand rather than die intestate, should carefully refrain from cancelling or destroying it until the new one has been executed in due form. § 399- Revocation, ^rhere 'Wills are executed in Duplicate. — If, as sometimes is done for the greater security, a testator executes his will in duplicate, keeping only one part "while his executor, attorney, or another in his confidence has custody of the other, the effect of destroying or cancelling one of such papers without the other may give rise to controversy. Doubt- less his true and safe course is to gain control of both papers and revoke them equally by one and the same act. But this is not essential ; • for where a testator cancels or destroys by a suitable act the paper in his own possession, it may be strongly presumed that he does not intend the duplicate to stand.^ On the other hand, if he has possession of both papers and de- stroys or mutilates one, leaving the other intact, the will may be presumed unrevoked.* The strength of the presumption 1 Applebee, Goods of, I Hagg. 153; land v. Strickland, 8 C. B. 724; Pem- 32 L. J. P. M. & A. 202; Eeles, Goods berton v. Pemberton, 13 Yes. 310; of, 2 Sw. & Tr. 6cx). In Hyde v. Ma- O'Neall v. Farr, i Rich. 80. And see son, cited i Wms. Exrs. 149, 150, and Rickards v. Mumford, 2 Phillim. 23; 4 Burr, 2515, the testator altered the 2 Hagg. 266. Where a testator executed duplicate of his first will, leaving the in duplicate, delivering a copy to his duplicate intact with the executor. wife, and it does not appear what be- 2 As if the second disposition should came of the latter copy, the inference is fail, because the legatee was incapable that the will offered for probate is the of taking. Tupper v. Tupper, I Kay & instrument he retained. Snider v. J. 665; Quinn v. Butler, L. R. 6 Eq. Burks, 84 Ala. 53. 225. * Roberts v. Round, 3 Hagg. 548. 8 Cowp. 49; 2 Phillim. 23; Strick- See Lord Chancellor Erskine's rules of 427 § 401 LAW OF WILLS. [PART IV. in equivocal acts will vary, however, according to circum- stances ; possession or non-possession of the duplicate being the element chiefly regarded, and yet not conclusive of the issue.^ § 400. Effect of destroying, etc., 'Will, but not Codicil. — Where, again, there is a will and codicil, and the will appears to have been destroyed, but not the codicil, the question arises whether the act of revocation has annulled both instruments. This must be determined' by circumstances ; and, as in duplicate wills, a testator's custody of both instru- ments or of one only may go far to aid the solution. But supposing the testator to have kept possession of both papers or had equal access to them, the effect of revoking his will alone must turn mainly upon the dependence or independence of the codicil. If the provisions of the codicil are inseparably blended with those of the will, the act which revokes the will revokes the codicil also; but if the codicil may from the nature of its disposition stand readily by itself, its validity remains unimpaired by an act which left that instrument intact, while destroying the will.^ § 401. Presumptions, etc., 'where Will is found mutilated, de- faced, etc. — Where a will is found torn, mutilated, or defaced at the testator's death, it is admissible to show that this was the result of use or accident, and not design on his part ; ^ or that it was done by some one else without his direction and presence : for the vital question is, whether the testator meant thereby to revoke or not. ■ And as bearing upon this question the treatment of the instrument, the place and period of its exposure, the character of the injury suffered, and other circumstances attending its production after the testator's. presumption as laid down in Pember- say that but one copy was executed, ton w. Pemberton, supra. O'Neall v. Farf, I Rich. 80. 1 I Jarm. Wills, 137, 138; i Wms. 2 cf. Tagart v. Squire, i Cutt. 289, Exrs. 154-156; Strickland t). Strick- and Coppin v. Dillon, 4 Hagg. 369; land, 8 C. B. 724; Hubbard v^ Hub- 2 Add. n6, 229; i Jarm. Wills, 139. - bard, 3 Ch. D. 738. » i Jarm. Wills, 133; 2 No. Casi 601 ; It will not be presumed from circum- Clarke v. Scrapps, 2 Rob. 563; Giles v,_ stances that a will was executed in du- Warren, L. R. 2 P. & D. 401; Wood-, plicate, when the attesting witnesses ward Re, L. R. 2 P. & D. 206. 428, CHAP. I.] REVOCATION OF WILLS. § 4OI death, may prove material where direct evidence of his inten- tion is wanting.^ Yet the natural presumption arises, where the will remained in the testator's custody until his death, and then was found defaced, mutilated, or partially destroyed, that the act was done by the testator himself.^ From the appearance of the instrument as produced under such circumstances, however, active or passive conduct is inferable, as the case may be ; but positive and active defacement or destruction warrants a conclusion, in the absence of other evidence, that the testator intended to revoke ; though whether by an act sufficient or insufficient, statute construction must determine.^ Where, however, the will remained in a different custody and inaor cessible to the -testator, it may rather be presumed that the defacement or destruction was not done by authority of law, that is to say, by the testator or in his presence and under his direction.* But all presumptions of this sort weigh lightly, and they may be rebutted by proof of the actual facts; declarations and conduct of the testator himself, the conduct and admis- sions of custodians of the will, and other material testimony 1 See Lawyer v. Smith, 8 Mich. 41 1, way of revoking his will. Patterson v. where a will twenty-five years old was Hickey, 32 Ga. 156. See also Smock found in a barrel of waste papers after v. Smock, 11 N. J. Eq. 156; 47 Ohio the testator's death. Throwing away a St. 323. will is not generally a sufficient revoca- ' Swinb. pt. 7, § 16, pi. 5; i Wms. tion. But the case may be supposed, Exrs. 157; i Cas. temp. Lee, 444; where a testator throws it into the water Lambell v. Lambell, 3 Hagg. 698; Bap* or the fire and it is rescued without his list Church v. Robbarts, 2 PeniL St. knowledge. See also Fellows i". Allen, no. From the sufficient act the law 60 N. H. 439; Blakemore's Succession further presumes the intention, i Wms. (La.) 1891. Exrs. 147, 157; 3 Hagg. 568. See Bell 2 Christmas -r/. Whinyates, 3 Sw.&Tr. v. Fothergill, L. R. 2 P. & D. 148, 81 ; 4 Kent Com. 532; i Jarm. Wills, where revocation in act and intent was 133. presumed, notwithstanding the testator Where a will was found torn or cut appeared to have stuck the signature in two, in a bureau drawer of the tes- on again in place, tator, a place other than that where his The onus of making out that the can- valuable papers were usually kept, parol cellation of a will was the act of the evidence of the testator's acts and dec- testator himself lies upon those who larations at various times between the oppose the will. Hitchins v. Wood, making of the will and his death, was 2 Moore P. C. 355; I Wms. Exrs. 159. held admissible to show whether the * Bennett v. Sherrod, 3 Ired. L. mutilation in question was intended by 303. 429 § 402 LAW OF WILLS. [PART IV. aiding the investigation in a given case. The conclusion results, that the testator fully intended to revoke, or else that his intention wavered and was never completely carried out, or once more, that he had no intention to revoke at all ; and in this last instance, accident, the testator's own carelessness, or the carelessness or fraud of some one else may account for the appearance of the paper, and furnish to the triers a choice of inferences. And after all, a testator's full intention to revoke by what he does to the instrument may be thwarted by the insufficiency of his own act ; and his intention may have been to revoke in part only or alter the will by a war- ranted or unwarranted exercise of discretion under the local statute, as the case may be.^ § 402. Presumption, etc., where Will cannot be found. — So, too, where it is proved that a will was made and the testator retained custody of it or had ready access to it, the presump- tion arises, if the will cannot be found after his death, that he destroyed it with the intention of revoking it ; though such a presumption may be overthrown by circumstantial or other proof to the contrary.^ Where, however, another per- son was the custodian of the will, and the testator had not ready access to it, there appears no such presumption ; ^ nor 1 As to mere obliterations and inter- 10 Yerg. 84; Davis v. Sigourney, 8 lineations appearing on the face of a Met. 487; Johnson's Will, 40 Conn, will, and nothing to explain them, it is 587; 98 N. C. 135. So if » will was presumed that they were made after the executed in duplicate, and the part will was executed; and so, too, with which the testator retained cannot be mutilations. See next c; also l Jarm. found after his death, the presumption Wills, 143, 144; Cooper v. Bockett, 4 is that lie destroyed it animo revocandi. Moore P. C. 419; Greville v. Tyler, 7 2Phillim. 23; Calvin z/. Eraser, 2 Hagg. ib. 320 ; Burgoyne j;. Showier, I Rob. 5. 266; supra, §§ 283, 399. The mere 2 I Wms. Exrs. 157, and cases cited; fact that the will was in existence a 2 Phillim. 23; 3 Phillim. 126; L. R. I short time before the testator's death P. & D. 281,309,371; Lillie !<. Lillie, does not overcome the presumption 3 Hagg. 184; I Curt. 289; Finch u. that, having the opportunity, the testa- Finch, L. R. I P. & D. 371; Weeks v. tor revoked it by destruction. Collyer McBeth, 14 Ala. 474; Southworth ■v. v. Collyer, no N. Y. 481. Adams, 11 Biss. C. C. 256; Minkler » See Schultz v. Schultz, 35 N. Y. V. Minkler, 14 Vt. 125; Hammersley 653. The custodian's explanation may V. Lockman, 2 Demarest, 524; Foster's help clear the question. See 10 N. J. Appeal, 87 Penn. St. 67; Mercer v. Eq. 196; Behrens v. Behiens, 47 Ohio Mackin, 14 Bush, 434; Schultz v. St. 323, Schultz, 35 N. Y. 653; Brown v. Brown, CHAP. I.] REVOCATION OF WILLS. § 402 where the testator was insane for the intervening period until he died.i If a will last traced to the testator's custody can- not be found at his death, the presumption that he destroyed it for the purpose of revocation outweighs the probability of its fraudulent and criminal destruction by another, when unsupported by any evidence except that of opportunity,^ though this latter circumstance is always worthy of consider- ation with other proof. And where it is shown that the testator had been aware, while alive, that his will was lost when in his own custody, and yet, with ample opportunity, made no attempt whatever to reproduce or republish its con- tents, a court may fairly assume tliat he in reality revoked it.3 A sufficient act of revocation with sufficient intent being disproved or not presumable, the contents of the destroyed or missing will may be established upon secondary proof of its contents ; as by draft, copy, or the testimony of the scriv- ener who wrote it, or other sufficient parol proof.* If the destruction of the will was procured by the compulsion or fraud of some third person, satisfactory proof, oral if need be, should also be furnished.^ 1 Sprigge V. Sprigge, L. R. i P. & D. Sw. & Tr. 449; Card v. Grinman, 5 608. Conn. 164; Burns v. Burns, 4 S. & R. 2 Bauskett v. Keitt, 22 S. C. 187; 294. Statutes are found establishing Collyer v. CoUyer, no N. Y. 481. the method of proving a lost or missing For an exhaustive historical disserta- will, and containing various other provis- tion upon the jurisdiction of probate ions as to the procedure. See Mosely v, courts, unless forbidden^ by statute, to Carr, 70 Ga. 333, 4 Dem. 53. If the admit upon proof a lost, suppressed, or testimony varies materially upon the destroyed will, see Dower v. Seeds, 28 essential features of the disposition, W. Va. 113. Chancery, by a bill suit- the will cannot be proved. 6 Abb. N. ably brought, has exercised a similar Cas. (N. Y.) 234. But according to jurisdiction. lb. See further 15 P. D. Sugden v. Lord St. Leonards, i P. D. 170; Brookie K. Portwood, 84 Ky. 259. 154, probate may be granted of so much 3 Deaves's Estate, 140 Penn. St. 242. of the will as the evidence ascertains, *3 Sw. & Tr. 449; Burls v. Burls, though the other part be not ascertained. L. R. I P. & D. 472; I P. D. 431; I See Schoul. Exrs. § 84. See also Ap- Phillim. 149; Sugden z/. Lord St. Leon- person v. Dowdy, 82 Va. 776. But cf. ards, I P. D. 154; Ford v. Teagle, 62 Woodward v. Goulstone, 17 App. Cas. Ind. 6. 469, which seriously questions whether 6 I Wms. Exrs. 158; Foster ». Foster, probate of a residuary bequest alone I Add. 462; Podmore v. Whatton, 3 ought to be granted, unless the court § 403 LAW OF WILLS. [PART IV. § 403I Declarations of the Testator in issues of Revocation. -^As bearing upon the issue of revocation or no revocation by means of an act done to the instrunient, accompanying declarations of the testator, either vetbal or written, may bp shown at the probate, as part of the surrounding circum- stances evincing this intent.^ And SQ too, where the effect of doubtful acts of revocatipn is to be established.^ But when the act done constitutes no legal revocation at all, his declarations of intent are superfluous and inadmissible.^ If the will be lost or missing, after the testator's death, his oral or written declarations are held admissible not only for rebut- ting any presumption that he had revoked the will, during his life, but also as tending to show by secondary proof, what were its contents.* But some of the latest decisions tend to restrain this principle.^ In cases which involve the issue not of express revocation such as we have described, but of implied revocation, by in- ference of law — ' as in the case of remarriage or other change of circumstances — the weight of authority is against admit- feels satisfied that it comprehends the Keen c. Keen, L. R. 3 P. & D. 105; 6 whole testamentary purpose of the de- P. D. I ; Johnson's Will, 40 Conn. 587; ceased. Lawyer v. Smith, 8 Mich. 41 1 ; Patter- The contents of a lost will should be son v. Hickey, 32 Ga. 156; Pickens v. fairly proved. 66 Cal. 487. But not Davis, 134 Mass. 252, 258. C/. Colla- " beyond a reasonable doubt." 82. Ala. gan v. Burns, 57 Me. 440, where the 352. One witness, or less than the court was equally divided, ' attesting number may establish it. 82 ^ The Houseof Lords haslately(i886) Ala. 352; 118111.576. But such a will discredited Sugden z/. Lord St. Leonards, should not be probated upon mere supra. See Woodward v. Goulstpne, 1 1 agreement of counsel. 6Dem. 31. As App. Cas. 469, where a will was lost, to proving a revocation of former wills and nothing was offered in proof of its by a later will, which is lost or destroyed, contents but the post-testamentary dec-- and whose contents cannot be proved larations of the testator concerning its other than the revocatory clause, see contents. This evidence was held in- Cunningham, Re, 38 Minn. 169, and sufficient, and some doubts were ex- cases cited. pressed as to whether such evidence 1 Evans's Appeal, 58 Penn St. 238. could be admitted at all. This case is 2 Patterson v. Hickey, 32 Ga. 156; an extreme one; and out of indulgence Collagani/. Burns, 57 Me. 446; 8 Mich- to the difficult stress which a lost or 41 1 ; Pickens v. Davis, 134 Mass. 252. missing will occasions, it seems fair that ' Gay V. Gay, 60 Iowa, 415; Jackson the testator's declarations should be ad- V. Kniffen, 2 Johns. 31; Hargroves v. mitted, as corroborative, at least, of Redd, 43 Ga. 142; 34 Barb. 140. other proof, for the purpose stated in * Sugden v. St. Leonards, I P. D. 154; our text. CHAP. I.] REVOCATION OF WILLS. § 405 ting the oral declarations of the testator to the point that he did or did not understand his will legally revoked.^ § 404. Revocation by Subsequent Will or Codicil. — Now as to the revocation of a will by a subsequent will or codicil. So long as the disposer of property lives and enjoys testa- mentary capacity, he may make his will as often as he likes. But, as Swinburne remarks, " no man can die with two tes- taments, and therefore the last and newest is of force " ; ^ by which we are to understand that the latest will or codicil duly executed, repeals all former wills which dispose of the estate differently, though all should happen to be preserved. The last will excludes fer se every former disposition of a contrary or inconsistent nature, without requiring that the instrument annulled be destroyed as prudence dictates. So long as the law permitted wills of personal property to be executed without the solemnities pronounced necessary for devises of land, the subsequent disposition might be less for;,mal than that which it superseded.^ But as legislation, English and American, commonly prescribes at this day, the later will, whether embracing real or personal property or both, must be signed and attested with all the solemnities of the local statute, in order to revoke a former will, or indeed to operate at all.* I 405. Subsequent Will does not revoke unless duly exe- cuted. — Of revoking clauses in a will, as well as of instru- 1 Hoitt ». Hoitt, 63 N. H. 475, with at one time) to operate revocation in numerous citations. whole or in part. Act i Vict. u. 26, 2 Swinb. pt. 7, § 14, pi. I. § 20. And see language of the various A parol declaration concerning land American codes on this point; their is revoked by a devise of it. Kelly v. general policy being that a revoking Johnson, 34 Mo. 400. will or writing must be executed and « Supra, §§ 252, 253; I Cas. temp, attested like any other will. Lee, 472. Under the Statute of Frauds a slight * Supra, §§ 252, 253. The Statute of difference in ceremonial between a de- Victoria has abolished in England all vising and revoking will is made in the distinctions between wills of real or phraseology; but the difference has personal property in respect of revo- proved of no practical consequence, for cation. There must be " another will the subsequent will usually aims to de- or codicil executed in manner herein- vise as well as to revoke. I Jarm. Wills, before required" (».«., by signature and 167, 168, commenting , upon 29 Car. II. attestation in presence of two witnesses §§ 6, 22. 433 § 407 LAW OF WILLS. [PART IV. ments, not wills, which may revoke because of their express tenor, we shall speak presently. But apart from such revok- ing clauses, an instrument which purports to be a will cannot as such revoke a prior existing will, under our modern codes, unless properly signed and witnessed, though it should pro- fess to dispose of the property differently.^ If it revoke at all, it must be as some other writing within the statute, for it is neither will nor codicil. § 406. If Subsequent 'Will dispose inconsistently, it is enough. — A new will or codicil which is duly executed by signature and attestation as the statute requires, operates to revoke a former will wholly or in part, as the case may be, by simply disposing of the estate in an inconsistent manner ; and no express words of revocation are necessary.^ Yet an express revoking clause is to be recommended for insertion in all wills, so as not to leave the maker's intent to doubtful inference and litigation.^ The later will which thus revokes should be perfect in form and execution ; but its operation or non-operation from causes dehors the instrument would not affect the question.* It must have been made freely and rationally like any will.^ § 407. But Later Will does not revoke unless Inconsistent. — On the other hand, the later will, though well executed, does 1 Reese v. Court of Probate, 9 R. I. « Fisher Re, 4 Wis. 254; Burden's 434; Nelson v. Public Admr., 2 Bradf. Estate, 11 Phila. 130; Ludlum v. Otis, 210; 15 Penn. St. 281; Heise v. Heise, i; Hun, 410; Johns Hopkins Univ. v. 31 Penn. St. 246; Taylor v. Taylor, 2 Pinckney, 55 Md. 365; 6 Dem. 289; Nott. & M. 482; 3 MacArth. 153; Boy- Bobb's Succession, 42 La. Am., 40; 122 Ian V. Meeker, 2 Dutch. 274. Ind. 134. Formerly, a finished will of personalty ' See § \\'],post. might be revoked in extreme cases by * Snowhill v. Snowhill, 23 N. J. L. an unfinished one. i Wms. Exrs. 168; 447; Reade v. Manning, 30 Miss. 308. 2 Phillim. 51. But this is inconsistent Thus, a new will may fail of its pur- with the general policy of our modern pose because the party for whose bene- legislation. fit it is made proves incapable of taking For the rule of probate procedure, under it; yet it may be set up as a revo- where a will has been regularly proved, cation of the former inconsistent will and a later one is afterwards produced Laughton v. Atkins, I Pick. 535. which does not revoke the former in ' O'Neall v. Farr, i Rich. 80. terms, see Besancon v. Brownson, 39 Mich. 388. 434 CHAP. I.] REVOCATION OF WILLS. § 407 not revoke the earlier one, as such and without express words of revocation, except by being inconsistent with it. And by the extent of such inconsistency must be measured the extent of the revocation. To operate a total revocation in such a case, the two dispositions must be so plainly inconsistent as to be incapable of standing together.^ Only a revocation pro tanto results where the effect is that of partial incon- sistency : it is like making a will and then adding a codicil ; the final disposition reading by the light of both instruments together as a corrected whole.^ For any number of testa- mentary instruments, executed at different times, may con- stitute one's " last will " in legal effect. But a later will has sometimes, by rather a forced construc- tion, been held to repeal the former totally by implication, where the court can pronounce it as intended for a new, in- dependent and final disposition. The decisions in point are, however, of doubtful authority; and the judges who made them, appear to have laid hold of doubtful words and expres- sions in the later wills, as importing more clearly than the language warranted, that the testator meant thereby to re- voke in toto^ A true will, which revokes completely all one's 1 I Wms. Exrs. 162, correcting the personal estate. But Sir H. J. Fust relied language of Swinburne (cited supra, greatly upon language therein which § 404), that "no man can die with two described the paper as "my last will." testaments." And see Cutto v. Gilbert, 18 Jur. 560. * Masterman v. Maberly, 2 Hagg. But in many instances a paper de- 235; Stoddart I". Grant, I Macq. H. L. scribed as one's "last will and testa- 163; Lemage v. Goodban, L. R. I P. ment"is probated as an addition to a & D. 57; Hellier v. Hellier, 9 P. D. former will, out of a broader regard to 237; Laughton v. Atkins, l Pick. 535, the testator's intention. I Wms. Exrs. 543; Floyd V. Floyd, 7 B. Mon. 290; 163, note; 5 Notes Cas. 183, 512; Brant v. Wilson, 8 Cow. 56; Larrabee Lemage w. Goodban, L. R. I P. & D. V. Larrabee, 28 Vt. 274; Fleming v. 57. Hellier v. Hellier, 9 P. D. 237, Fleming, 63 N. C. 209; Price v. Max- harmonizes the probate and temporal well, 28 Penn. St. 23; Scott v. Fink, courts on this point. 45 Mich. 241 ; Buchanan v. Lloyd, 1 The appointment or non-appointment Atl. Rep. 845; Johns Hopkins Uni- of new executors has little real bearing versity z/. Pinckney, SS Md. 365; Smith on such issues, i Wms. 164, criticis- V. McChesney, 15 N. J. Eq. 359. ing Plenty v. West, supra; Henfrey v. 8 These cases are cited in i Wms. Henfrey, 2 Curt. 468; 4 Moore P. C. Exrs. 163, 164. Thus, in Plenty v. 29; Richard's v. Queen's Proctor, 18 West, I Rob. 264, the subsequent will Jur. 540; Brown Re, i B. Mon. 56; disposed of only part of the testator's Bailey Re, L. R. i P. & D. 628. Yet 435 § 408 LAW OF WILLS. [t»ART IV. former wills by inference, is properly executed and described as a substantive will and not a codicil. According to the better rule, therefore, where revocation is simply implied from a subsequent will, inconsistent in terms, the revocation will be limited to such terms as are plainly inconsistent ; and where a devise or bequest in the former will is clear and free from doubt, the intention to revoke it by the latter should be equally explicit.^ The gov- erning principle in all such cases is the testator's apparent intention. And one's intention in making a new will may have been to dispose of other property or make new pro- visions perfectly consistent with the former ; or else to there- by revoke pro tanto by amendment ; it does not follow that a full revpcation was intended.^ § 408. Intention to revoke must be Immediate, and not Pro- spective or Dependent. — The intention to revoke implied in a will must be immediate, and not prospective or dependent, in order to take effect. Thus, a will confined to other prop- erty, which intimates an intention to re-dispose of what the first will bequeathed by a codicil to be hereafter made, con- stitutes no present revocation of the first will.* And the license formerly granted to wills of personalty informally executed, whereby one's mere instructions for a subsequent will might in an extreme case operate ipso facto to revoke an some of the earlier cases in th« eccle- are supposed to indicate what the tes- siastical courts seem to have regarded tator intended. Thus, a legacy "in the subsequent appointment of a new lieu " of a former provision may be executor by will as an implied revoca- held to revoke such provision. Brown- tion. I Phillim. 412, and cases cited. ell v. DeWolf, 3 Mason, 456. So, too, On the other hand, where a codicil in a bequest to tenants in common, a entirely revokes the will except as to the distinction in effect is taken between appointment of executors, the will re- the revocation of a gift and of so much mains pro tanto valid, and both instru- of the will as contains the gift. See i ments require probate. Newcomb v. Jarm. Wills, 170; Harris v. Davis, I Webster, 113 N. Y. 191. Coll. 416; Sykes v. Sykes, L. R. 4 Eq. 1 Masterman v. Maberley, and other 200; Rife's Appeal, tio Penn. St. 232. cases, supra. ' Thomas v. Evans, 2 East, 488; I ^The cases sometimes turn upon a Jarm. 171. Cf. Brown v. Thorndike, very nice construction of phrases which 15 Pick. 388. 436 CHAP. I.J REVOCATION OF WILLS. § 4IO earlier one,^ is discountenanced by the policy of modern codes. § 409. lucliuatiou against Revocation ; Use of a Codicil. — The courts incline to so construe doubtful cases as to pre- serve, wholly or in part, the contents of the prior will rather than pronounce for a total revocation by inference. Where, for instance, the later will only disposes of a portion of the estate, they avoid the ill consequence of partial intestacy ; ^ and where the later paper is styled a codicil, they take this to mean that the intent was to amend and not repeal ; ^ and in either case the former will is treated as no more than pro tanto revoked. In other cases, perhaps, the context may justify a similar construction. But if the later will does not profess to be a codicil at all, and disposes moreover of the whole estate inconsistently with the; earlier, a court would violate its duty not to hold that the earliei- will was wholly revoked, unless the context supplied good reason for suppos- ing that the testator otherwise intended.* The intention to revoke may be collected from informal expressions, though not from ambiguous ones.^ And in case of doubt, provisions by a later will appear to be presumed additional and cumulative, rather than intended as a sub- stitute and by way of revocation.* Even where the literal constrv^ction of a codicil might favor the conclusion of a more sweeping revocation, a less sweeping one will be inferred if a fair comparison of will and codicil in all their provisions justi- fies the conclusion ; for no disturbance of the former existing will is to operate from the later one than necessity justifies.'^ § 410. Revocation by Subsequent 'Will under a False As- sumption of Facts. — Where a testator revokes his existing 1 I Wms. Exrs. 161; i Cas. temp. Lee, ^ cf. Gordon v. Hoffman, 7 Sim. 29; 509; Helyar v. Helyar, I Phillim. 430. Pilcher ». Hole, 7 Sim. 208; I Jarm. 182. 2 Freeman v. Freeman, Kay, 479. « i Wms. Exrs. 167. 'Howard Re, L. R. I P. & D. 636. ' Reichard's Appeal, 116 Penn. St. The usual office of a codicil is to vary 232. See Thomas v. Levering (Md.) or amend a previous will, and not to 1 89 1, repeal it. Supra, § 7; next c. Ambiguous language in a codicil does 1 I Jarm. Wills, 175; Henfrey v. not operate as a total revocation. Henfrey, 2 Curt. 468; 4 Moore P. C. 29. Gelbke v. Gelbke, 88 Ala. 427. 437 § 4" LAW OF WILLS. [part IV. will, through some false or mistaken assumption of facts, which is discoverable from the face of the papers, the revoca- tion does not take effect. As if one should by a later will repeal legacies given by an earlier one to his grandchildren, "they being all dead," when in fact they are living j^ or should confer benefits upon one described as husband or wife, who. turns out not to be legally a spouse by reason of some prior and existing marriage ; ^ or should treat the gift as made to A in the original will when it was made to B.^ This rule regards the testator's intent and the impulse which moved him to dispose as he did ; and courts treat the revocation ac- cordingly as a sort of contingent or conditional one, whose condition or contingency has failed ; * the intent being defi- cient, as in other cases of fundamental mistake. Where no mistaken assumption appears, but a testamentary purpose founded upon some recognized doubt or accompanied by a mere misdescription of the person, or stating grounds of whose falsity or truth the testator judged for himself, this rule does not apply.^ This non-revocation, we may add, cannot be set up by showing mistakes not discoverable from the face of the testa- mentary papers ; and it is held that not only the mistake must be thus apparent, and what the will of the testator would have been except for the mistake.® The failure of the revocation to take effect, however, appears the same, whether the new will with its false assumption revoked expressly or only by application.^ § 41 1. Two Wills of the Same Date, etc. — Where two con- tradictory wills are found bearing the same date, or without any date at all, and nothing can be shown to establish rela- 1 Campbell v. French, 3 Ves. 321 ; 6 gge i Jarm. Wills, 183, citing lO Crossthwaite v. Dean, L. R. 5 Eq. 245. Ad. & El. 228; Hayes v. Hayes, 21 "Kennell v. Abbott, 4 Ves. 802; N.J. Eq. 265; Skipwith v. Cabell, 19 Doe V. Evans, 10 Ad. & El. 228. Gratt. 758. ' Barclay v. Maskelyne, i Johns. " Gifford v. Dyer, 2 R. I. 99. (Eng.) 124. ' See Campbell v. French, 3 Ves * I Wms. Exrs. 173, 174; I Jarm. 183. 321. CHAP. I.] REVOCATION OF WILLS. § 412 tionship or priority in one or the other, both must be treated as void, and intestacy is the harsh result.^ But the court avoids this conclusion if possible, by collecting some consist- ent scheme of disposition from both papers, or determining their true sequence.^ Where duplicate wills are executed on the same day, the execution of the second operates no revocation of the first ; for the intention is, that both shall constitute one and the same will.* Even where one has executed a later will, wrongly supposing it to be an exact copy of his former one, while in fact it omitted certain essential parts, no revocation of those parts occurs, but both instruments are together entitled to probate.* § 412. 'When Revoking 'Will cannot be found; Proof of Revocation, etc. — The execution of a subsequent will of dif- ferent tenor operates to revoke a former one, notwithstanding the later will be lost or mislaid, or at least cannot be found at the testator's death.^ Even supposing the second will destroyed by the testator with the intention of revoking it, he may have meant to die intestate.^ But where a will which cannot be produced is relied upon as revoking by implication a former one, its contents should be clearly established.^ And the mere fact that a later will was made, by no means justifies the inference that it revoked in effect without proof of its actual contents.* The English temporal courts appear to have insisted upon this doctrine more strenuously than the spiritual tribunals ; ® but on the 1 Phipps V. Anglesea, 7 Bro. P. C. 43. But see § 413, post, as to reviving a *l Jarm. Wills, 175; I Wms. Exrs. former will by cancelling the later one. 166. ' I Wms. Exrs. 162; Cuttow. Gilbert, 3 Odenwaelder v. Schorr, 8 Mo. App. 9 Moore P. C. 131 ; CoUigan v. McKer- 458. It is not necessary to produce nan, 2 Demarest, 42 1; Southwrorth v. both papers for probate, where a will is Adams, 1 1 Biss. C. C. 256. executed in duplicate. Crossman v. ' Hitchins v. Bassett, 3 Mod. 203; Grossman, 95 N. Y. 145. I Show. 537, affirmed in Shaw. Cas. * Birks V. Birks, 34 L. J. 90. Pari. 146. 6 Legare v. Ashe, i Bay, 464. Here » Cf. Cutto v. Gilbert, 18 Jur. 560, re- parol evidence of contents is admissible versed in 9 Moore P. C. 131 ; Freeman within the rule laid down, supra, § 402. v. Freeman, 5 De G. M. & G. 704. And 6 Brown v. Brown, 8 El. & Bl. 876. see Nelson v. McGiffert, 3 Barb. Ch. 158; Peck's Appeal, 50 Conn. 562. 439 § 413 LAW OF WILLS. [part IV. whole it has been well established, though not without a struggle, that unless the tenor of a later and missing will can be ascertained, by clear secondary evidence of its contents, revocation of the earlier one which still exists uncancelled is not to be inferred when proof of such revocation is wanting.^ § 413. Whether the Revocation of a Later 'Will can revive an ZiarUer One. — But supposing the contents of a later will sufficiently established, the question has long been discussed in courts, English and American, whether the revocation of such later will can per se revive an earlier one which remains uncancelled. The conclusion has been variously announced, and the fundamental difficulty appears to consist in trying to spread a net which shall catch the testator's intention each time without moving. The English common law tribunals laid down a rule, under Lord Mansfield's lead, which has been thought more inflexi- ble than that favored by ecclesiastical courts : viz., to the effect, that if a testator keeps his first will undestroyed and uncancelled, makes a second will virtually or expressly revok- ing it, and then destroys or cancels the second will only, thus repealing his revocation, the first will thereupon revives and continues in force.^ But the ecclesiastical courts announce that in all such cases the testator's intention should be the guide. "The legal presumption," as Sir John Nicholl de- clares, " is neither adverse to, nor in favor of, the revival of a former, uncancelled, upon the cancellation of a later revo- catory will. Having furnished this principle, the law with- draws altogether, and leaves the question, as one of intention purely, and open to a decision either way, solely according to facts and circumstances." ^ Even the common law courts have questioned the broadness of the rule as Lord Mansfield 1 I Wms. Exrs. 166; cases supra. * Lord Mansfield in Harwood w. Good- Where it was known that the second right, I Cowp. 91; Goodright v. Glazier, will disposed differently, but in what 4 Burr. 2512. particulars unknown, or merely that it ' Usticke v. Bawden, 2 Add. 125. was styled "last will," this does not And see Moore v. Mooie, I Fhillim. establish a revocation, lb.; Goodright 412. V. Harwood, Cowp. 87; 7 Bro. P. C. 344. 440 CHAP. I.] REVOCATION OF WILLS. § 414 first laid it down ; ' and indeed, it is possible that the eminent judge has not been accurately reported ;2 while Sir John NichoU, on the other hand, though professing that the law was unsettled in his day, gave a cautious preference to pre- suming against the revival of the former will rather than in favor of it.^ There is a distinction well taken in such cases (which Lord Mansfield may, if misreported, have had in view, though he probably had it not) ; namely, as between a later cancelled will which was merely inconsistent with the former one, and one which contained a clause expressly revoking it. Where the one will was expressly revoked by the other, it seems fairly presumable that the immediate absolute and unequivo- cal revocation in writing remains unaffected by equivocal acts of parol touching the later instrument ; or, in other words, that if the subsequent will expressly revoke the prior one, a simple cancellation of the latter cannot set up the former one again.* But some good authorities have questioned the soundness of such a distinction ; ^ though as affecting, at least, the strength of the bias or presumption against revival, it seems an important one, even though controlling evidence of actual intent cannot be shut put. §414. The Same Subject: Present English Rule. — In this discrepancy of authorities, the statute i Vict. c. 26, under- took, in 1837, to establish a rule for the future. Under § 22 of this enactment it is provided that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed as required by the act, and showing an inten- 1 Moore v. Moore, l Phillim. 419, ' Wilson v. Wilson, 3 Phillim. 554; I where Justice Abbott and Baron Rich- Hagg. 326. But parol evidence of the ards appear to question Lord Mansfield's actual circumstances is freely admitted opinion; 1 Wms. Exrs. 179. to turn the force of any presumption. "See note to Burr. 2513, 3d. Ed., lb.; Welsh v. Phillips, I Moore P. C. cited by I Wms. Exrs. 178, note. But 209; i Wms. Exrs. 180. Mr. Williams disposes of this contro- * i Powell Dev. (Ed. 1827) 527, 528. versy (which relates to Goodright v, ^ Jarman's note, ib. 529, cited in 134 Glazier) by quoting Lord Mansfield's Mass. 254. language in Harwood v. Goodright, supra. 441 § 4^5 LAW OF WILLS. [part IV. tion to revive the same.^ This puts an end in England to all discussions of obscure intent on this point, and brings the courts of that country upon harmonious ground which none of them ever occupied before. Since this enactment oper- ated, the uniform rule has been that after the execution of a subsequent will which contains an express revocation, or which by reason of inconsistent provisions amounts to an implied revocation of the former will, such former will can- not be revived by the simple cancellation or destruction of the later will.^ No strict distinction is here preserved be- tween an express or an implied revocation of the earlier will by the later one; yet the former mode of revocation best relieves the abstract question of difficulty.^ § 415. The Same Subject: American Rule. — In the United States, a like discrepancy of opinion is found in the several States whose courts have considered the subject ; and legis- lation in many localities resolves the dispute substantially as the English Statute of Victoria has done^* The policy of these enactments being that an earlier will once revoked ought not to be revived by the cancellation of a later will, we may consider Lord Mansfield's • theory as in the main dis- approved. For even in States whose courts are left without such guidance, we find that, on the whole, the ecclesiastical is preferred to the common-law doctrine. Particularly is that doctrine asserted, where the later will which became revoked contained an express clause of revocation ; ^ and numerous decisions are put expressly on the ground that the 1 Act I Vict. c. 26, § 22; Appendix, and Virginia are among the States post. where such enactments have prevailed. 2 Major V. Williams, 3 Curt. 432; See 4 Kent Com. 532; 134 Mass. 256, Brown z;. Brovifn, 8 El. &B1. 876; Dick- per Allen, J.; Rudisill v. Rodes, 29 inson v. Swatman, 30 L. J. (N. S.) 84; Gratt. 147; Beaumont v. Keim, 50 Mo. Wood V. Wood, L. R. i P. & D. 309. 28. » I Wms. Exrs. 181. ^ James v. Marvin, 3 Conn. 576; Sim- * Wherever legislation has dealt with mons v. Simmons, 26 Barb. 68; Colvin this subject, in the several States, it ap- fJll^arford, 20 Md. 357, 391 ; Harwell pears to have been thought best to pro- »?i,ively, 30 Ga. 315; Bohanon v. Wal- vide against constructive revival of an cot, i How. (Miss.) 336; Scott K.^Fink, earlier will by cancellation of the later 45 Mich. 241 ; Pickens v, Davis, 134 one. New York, Ohio, Indiana, Mis- Mass. 252; 2 Dall. 266, 286, 290; Flint- souri, Kentucky, California, Arkansas, ham v. Bradford, 10 Penn, St. 82. 442 CHAP. I.] REVOCATION OF WILLS. §415 later will revoked thus, and not by mere implication ; ^ yet leaving no positive assurance that this distinction will be rigidly pursued. If, therefore, a will which was duly executed, and which contained a clause expressly revoking all former wills, be cancelled or destroyed, the preponderance of Ameri- can opinion is that the former will is not thereby revived, in default at all events, of affirmative evidence that the testator so intended.2 But in the absence of statute direction, the courts treat the question of revival as one of intent, to be gathered from all the circumstances.* ^ Scott V. Fink and Colvin v. Warford, supra. In Scott v. Fink the distinction is stated at length, and reference is made to the fact that an express revocation operates at once and unequivocally with- out being a needful ingredient of the virill. But as to the implied revocation which results from the inconsistency of the second vfill with the first there are prevalent theories in the courts which interfere with its immediate operation. The only chance for the second will here to operate was by its coming to a head as an active will, which it could do only by surviving its maker. " Being the last expression of the decedent and at the same time practically inconsistent with the prior one, the intent to repeal the first by it was to be implied. In case, however, of its being recalled by the tes- tator in his lifetime, it could not, on the theory referred to, be taken to have the effect to do away with its predecessor."" 45 Mich. 241. This same distinction is expressed in Peck's Appeal, 50 Conn. 562, and semble enforced, by comparison with James v. Marvin, 3 Conn. 576. This rather fanciful idea is derived from Lord Mansfield in Goodright v. Glazier, 4 Burr. 2512. But in that same Eng- lish case, Mr. Justice Vates puts the principle thus ; The first will revives or holds good, because the revocation of it by the second wall was itself revoca- ble, and the testator has revoked the revocation by cancelling the second will. Goodright v. Glazier, ib. ' Pickens ». Davis, 134 Mass. 252, and cases cited. Oral declarations made after cancelling the later will are admis- sible to show whether the testator meant thereby to revive his earlier and still uncancelled one. Ib.; §403; Hawes z/. Nicholas, 72 Tex. 481. 8 In Colvin v. Warford, 20 Md. 357, 391, the court appears to have held that the cancellation of a revoking will is prima facie evidence of an intention to revive the previous will, but the pre- sumption may be rebutted by evidence of the attending circumstances and probable motives of the testator. The rule of the English ecclesiastical courts points, however, the other way, as our text indicates, or else to a non-presump- tion. See I Wms. Exrs. 179. The in- tention to revive the first will when cancelling the second, is indeed open to proof, and even to oral proof; but the bare fact that the first will was not destroyed, while the second was, affords no suffi- cient proof, especially if the second will contained a clause of express revocation. " The clause of revocation," observes Allen, J., in a learned exposition of this subject, " is not necessarily testamentary in its character. It might as well be executed as a separate instrument. The fact that it is inserted in a will does not necessarily show that the testator in- tended that it should be dependent on the continuance in force of all the other provisions by which his property is dis- posed of. It is more reasonable and 443 § 417 LAW OF WILLS. [part IV. On the other hand, there are a few States in which Lord Mansfield's rule has been upheld; so that the earlier will revives upon cancellation of the later one.^ § 416. Reference of Codicil to Either of Two "Wills. — Although a later and inconsistent will repeals a prior one without a revoking clause, it does not preclude a testator by- appropriate writing from reinstating the former one in a con- tingency. Thus, where the testator has preserved two such wills, he may make a still later codicil, while uncertain which of these two ought to take effect as his will, meaning such codicil, however, to attach to the earlier will in one alternative and to the later one in the other ; and supposing the codicil to express this intention clearly and properly, no artificial rules of revocation can deprive the intention of legal effect.^ §417. Express Revocation by Later Will, etc. — We are now brought to consider the express revocation of an earlier natural to assume that such revocatory clause shows emphatically and conclu- sively that he has abandoned his former intentions, and substituted therefore a new disposition of his property, which for the present, and unless again modi- fied, shall stand as representing his wishes upon the subject. But when the new plan is in its turn abandoned, and such abandonment is shown by a can- cellation of the later will, it by no means follows that his mind reverts to the orig- inal scheme. In point of fact, we be- lieve that this would comparatively seldom be found to be true. It is only by an artificial presumption, created originally for the purpose of preventing intestacy, that such a rule of law has ever been held. It does not correctly represent the actual operation of the minds of testators in the majority of in- stances. The wisdom which has come from experience, in England, and in this country, seems to point the other way." 134 Mass. 256. Where a testator executes u second will, supposing at the time that the first will was lost, and he subsequently finds the first and destroys the second, de- claring that he prefers the first, those circumstances establish his intention. Marsh z/.- Marsh, 3 Jones L. 77. But where one destroys his later will with the distinct purpose of making another one, this does not revive an earlier one found among his papers, no third will, in fact, having been made. McClure v. McClure, 86 Tenn. 173. If a testator after holding three wills in suspense, each containing its revok- ing clause, and each properly executed, decides to keep the second and destroy the other two, and acts accordingly, the second will should be admitted to pro- bate. Wilhams v. Williams, 142 Mass. 1 Taylor v. Taylor, 2 Nott & McC 482; Randall v. Beatty, 31 N. J. Eq. 643 (a case of express revocation). As to second wills not expressly revoking, this doctrine finds approval in Feck's Appeal, 50 Conn. 662, which construes a local statute. v " Bradish v. McClellan, 100 Penn. St. 607. 444 CHAP. I.] REVOCATION OF WILLS. § 417 will by words or a clause contained in the later one. This, as already appears, furnishes a more prompt and positive mode of repealing than simply to provide differently by the new will and trust to inferences. Indeed, no well-drawn testa- ment omits at the present day a clause of revocation ; whether expressed so as absolutely to revoke all wills made by the testator at any former time, or in a partial sense, as where a codicil revokes the former will so far as inconsistent there- with, and in other respects ratifies and confirms it.^ Words and clauses of express revocation operate according to their obvious tenor, and strengthen the proof disclosed by incon- sistent provisions contained in the new will. As a rule, a general clause of revocation contained in the later will operates as expressed, namely, so as to revoke all prior testamentary acts of the testator.^ But if the later will appears on its face to have subserved some purpose which fails, or to have proceeded upon a false assumption of facts, the new disposition failing, the express revocation is carried down with it, on the theory that the testator intended the revocation clause as an ingredient of the new will and not to operate independently of it.^ So, too, a declaration of inten- tion to revoke in the future, or contingently, or with whatever shows a wavering, deliberative, or unsettled purpose in the testator's mind, cannot be deemed a present express revoca- tion.* And it is laid down as a canon Of construction that what is once clearly given must be clearly taken away or cut down, in order to be effectually taken away or cut down at all.5 Whether an express clause of revocation shall operate totally or partially, or whether it is imperative or the reverse, is a question of construction, and often a nice one, to be gath- 1 See forms in Appendix, posi. Thomas v. Evans, 2 East, 44^; Brown 2 In an extreme case this effect ap- v. Thorndike, 15 Pick. 388; Semmes v. pears to have been restrained by proof Semmes, 7 Harr. & J. 388; Hamilton's that the testator had not intended it tb Estate, 74 Penn. St. 69; Rudy v. Ulrich, apply to a particular paper, i Wms. 69 Penn. St. 177. But c/. Walcott v. Exrs. 16, 186. Ochterlong, i Curt. 580. » Onions v. Tyrer, 7 Ves. 379; Camp- = Doe v. Hicks, 8 Bing. 479; i CI. & bell V. French, 3 Ves. 321 ; su/ira, § 410. F. 20; Kiver v. Oldfield, 4 De G. & J. * Cro. Jac. 497; l Wms. Exrs. 183; 30. 445 § 419 LAW OF WILLS. [part IV. ered from a study of all the instruments concerned, with a view of discovering the testator's intention.^ § 418. The Same Subject. — The effect of writings not tes- tamentary whose purport is to revoke will presently appear. But in order to make the revocation clause operate which a new will contains, the will itself should be properly executed according to the statute requirements ; ^ and, of course, it should be the product of a free and rational mind.^ For there must exist not only testamentary capacity in such a case, but the testamentary execution •; since a testator is pre- sumed not to have intended revoking his former will except for the purpose of substituting the later one with the clause in question. If, however, the second will be properly executed by one of suitable capacity, the clause of revocation contained therein will operate, even though the second will should fail of its intended effect by reason of the incapacity of the beneficiary named in it, or any other matter dehors the will.* And even though the revoking will should make no disposition of the property disposed of by the will revoked, the clause of revo- cation will have its full effect.^ On the other hand, where the revoking will is found to be invalid on the ground of fraud or undue influence, or of mental incapacity, the clause of revocation which it contains cannot operate apart.^ § 419. Express Revocation by Other Writing. — The revok- ing instrument above described is executed as a will, being of a testamentary character and generally a mere clause con- tained in the new testamentary disposition. Such an instru- 1 See next c; Cookson v. Hancock, ton v. Hairston, 30 Miss. 276; Laugh- 2 My. & Cr. 606; Van Wert v. Benedict, ton v. Atkins, supra. And see Pringle I Bradf. 1 14. v. McPherson, 2 Brev. 279. An express 2 Laughton v. Atkins, i Pick. 543; revocation will prevail, even though the Nelson v. Public Admr. 2 Bradf. 210; object of the nevp wrill fails as being Heise v. Heise, 31 Penn. St. 246. against public policy. 5 Jones Eq. 46. 8 O'Neall V. Farr, i Rich. 80; Rudy ^ Thompson Re, 11 Paige, 453; Bay- V. Ulrich, 69 Penn. St. 177. ley v. Bayley, 5 Cush. 245. * Tupper V. Tupper, i Kay & J. 665; « Rudy v. Ulrich, 69 Penn. St. 177; Price V. Maxwell, 28 Penn. St. 23; Hairs- Rich v. Gilkey, 73 Me. 595. 446 CHAP. I.J REVOCATION OF WILLS. § 420 ment requires probate.^ But our wills acts recognize the right of express revocation by some other writing, not strictly tes- tamentary ; while under the common law, an unattested and even unsigned paper might be set up to repeal a will, pro- vided only the suitable, free, and rational intent was therein disclosed. But Anglo-Saxon law has long cherished the policy that a transaction by solemn instrument ought not to be subverted by an instrument less solemn. And, accordingly, the same Statute of Frauds which ordained that devises of land should not be good unless formally signed by the testator and at- tested in the presence of three witnesses, provided further that devises should not be revoked in writing save under sub- stantially the same conditions ; so that whether by will or some other distinct writing, the signature and the three wit- nesses were alike indispensable.^ This principle of legisla- tion having been early adopted in the American colonies, we have only to consider the effect of revocation by informal writing upon a testator's personal property, and even here it is American rather than English precedents that we find, in point.^ § 420. The Same Subject. — Unlike the devise of lands, therefore, a will of personal property alone might be revoked 1 Laughton v. Atkins, I Pick. 535; Where it appears to have been the Rudy w. Ulrich, 69 Penn. St. 177. testator's intention that all after-acquired ^ Act 29 Car. II. c. 3, § 6. property shall pass by his will, his con- This same statute, § 22, provides that veyance of all the estate previously de- " no will in writing concerning any vised, by a trust deed, not attested by a goods or chattels or personal estate shall sufficient number of witnesses to give it Ije repealed, nor shall any clause, devise a testamentary character, but containing or bequest therein be altered or changed a power of revocation which is subse- by any words, or will by word of mouth quently exercised so that the title revests only, except the same be in the life of in the testator, does not operate as a the testator committed to writing, and revocation of the will; and upon the after the writing thereof read unto the revesting of the title in the testator, the testator, and allowed by him, and proved estate is subject to the will, as before, to be so done by three witnesses at the and the interest of the devisees exists least." See l Jarm. Wills, 167, 168, as if no conveyance had been made. « I Jarm. Wills, 167, 168. The pro- Morey v. Hoitt, 63 N. H. 507. And vision of § 22 of the above statute was see § 427 post. not so generally incorporated in Amer- ican legislation as that of § 6. 447 420 LAW OF WILLS. [part IV. by an unattested, or even unsigned, writing which made the intention clear ; and even where a will .disposed of real and personal estate together, a similar instrument would take effect upon the gifts and bequest of personalty, though other- wise inoperative.^ To give this effect, no peculiar form of words was requisite. The testator might in some convenient part, usually at the foot of the original will, write " this will is hereby cancelled," or "this will is invalid," and if he signed it, so much the better.^ A single word written on the will which manifests an intention to annul it, so courts have ruled, effects a repeal.^ Partial revocation, too, may be manifested by writing suitable words across or against the legacy to be cancelled.* And every paper in the form of a will, but not properly executed as such, has been sometimes treated as sufficient for an express revocation, consistently with the local statute concerning devises of land ; ^ though, properly speaking, that which fails as a will from imperfect execution, ought not to operate separately in its revoking clause when intended as a will.^ 1 Brown v. Thorndike, 15 Pick. 388. Where the local law requires an ex- press revocation of real estate to be for- mally witnessed like a will, but not a revocation of personal property, it may happen that the testator has disposed of both real and personal property by a will duly attested, and then by an unat- tested writing purports to revoke his will utterly. Here the situation of his prop- erty at the time of such revocation is well inquired into, with the aid, if need be, of evidence extrinsic to the will it- self. For a will refers to the condition of one's property when it was made, while a revocation made long after operates upon the property then to be affected, which may be very different in amount and character. Should it prove that when the revocation was written the testator no longer owned real estate, any writing sufficient to revoke a will of personal property alone would revoke 448 completely. Brown v. Thorndike, 15 Pick. 388. '^ Warner v. Warner, 37 Vt. 356; Johnson v. Brailsford, 2 Nott & McC. 272; Semmes v. Semmes, 7 Harr. & J. 388; Witter V. Mott, 2 Conn. 67. To write " obsolete " on the margin of the will is not enough. 2 W. & S. 455. For instances in which a writing neither signed nor attested may revoke, see Clark v. Ehorn, 2 Murph. 235 ; Glass- cock V. Smither, I Call. 479. ^ Evans's Appeal, 58 Penn St. 238; I Demarest (N. Y.) 484. * See supra, § 397. ^ Clark V. Ehorn, 2 Murph. 235. ' See supra, § 4:8; Glasscock v. Smither, I Call. 479; Laughton v, At- kins, I Pick. 535, 543; Heise v, Heise, 31 Penn. St. 246; Reese v. Court of Probate, 9 R. I. 434; Stickney v. Ham- mond, 138 Mass. 116. CHAP. I.J REVOCATION OF WILLS; § 422 § 421. The Same Subject. — It is of course well settled that the declaration of an intent to revoke by some future act amounts to no actual revocation.^ But the terms of any writ ing which imports a revocation should be construed according to its obvious intent and the subject-matter rather than the strict phraseology in which it is couched ; hence hypothetical words in such instruments may well consist with the idea that a new will is proposed, and yet that the writing in question shall operate notwithstanding as an actual and present revo- cation without waiting for it.^ If an instrument is to take effect only on the happening of an event which does not transpire, it cannot revoke a will already executed and existing.^ § 422. The Same Subject : Latest Legislation. — But under the latest legislation, English and American, these informal, unattested writings which purport to revoke are generally abolished. As public opinion in both countries has advanced to the requirement that all wills without distinction of the property to which they relate shall be regularly and uniformly signed and attested, so has the disposition grown to admit of no express revocation by writings less solemn. Upon this newly extended rule of policy rests the modern Statute of Victoria and most local enactments in the United States now in force.* Revocation under these statutes may be by ex- 1 Cro. Jac. 497; Thomas v. Evans, 2 declaration of an intent to revoke by East, 487; Brown v. Thorndike, 15 some future act. But qu. was it not Pick. 388; supra, §417. Thus, an in- rather a revocation to operate contin- dorsement on a will which indicates the gently or upon a condition subsequent purpose to alter or modify it at a future which took actual effect; and may not day, is no revocation. Ray v. Walton, an express revocation thus qualified, and 1 1 A. K. Marsh, 71. not strictly dependent upon some future 2 Brown v. Thorndike, 15 Pick. 388, act of revocation, be good? 408. Here the testator wrote on his * Hamilton's Estate, 74 Penn. St. 69; will : " It is my intention at some future 69 Penn. St. 177. time to alter the tenor of the above will, * See Act I Vict. c. 26, § 20; Appen- or rather to make another will; there- dix. Many American statutes require fore, be it known, if I should die before in such case " some other writing signed, another will is made, I desire that the attested, and subscribed in the same foregoing be considered as revoked and manner that is required in the case of a of no effect." This was held to consti- will." ^See Mass. Pub. Stats. (1882) c. tute a present revocation, and not the 127, § 8; Noyes's Will, 61 Vt. 14. 449 § 423 LAW OF WILLS. [PART IV. press writing testamentary or not testamentary ; but in either case and with reference to real and personal property alike, the instrument must be executed with the formalities pre- scribed for a will ; it must be signed by the testator and attested by a stated number of witnesses. The mere prepa- ration of a new will because of dissatisfaction with the former one, can under such a policy operate no revocation, where the testator died before the new will could be executed.^ A notable consequence of such legislation is, that signed and attested writings which expressly revoke are in some instances wills, requiring probate as such ; and in others, writings which are no wills, nor admissible to probate ; the line of distinction, however, being sometimes difficult to trace.2 Simple words of repeal and cancellation written upon a will may still have the force of an express revocation as formerly ; not, however, unless signed and attested as the local statute directs.^ § 423. Parol Evidence of Intention to revoke. — Parol evi- dence of an intention to revoke or change one's will has been admitted in cases where the papers themselves left the 1 Voorhis' Will (N.Y.) Am. Dig. 1889. 177, which pursues a like distinction; 2 Lord Penzance found this difficulty supra, § 296. when construing i Vict. c. 26, in its ' Gugel v. VoUmar, i Dem. (N. Y.) 20th section. A testator at the foot of 484. Here the attempt was to revoke his will wrote a memorandum in effect : part of the will. In a late English case, " This will was cancelled this day," and under the Act of Victoria, a codicil was duly executed it in the presence of two considered revoked by erasure and a witnesses. This, it was held, was writing signed by the testator and two " some writing " under the statute, and witnesses to the effect that they had not entitled to probate as a will. Fra- witnessed the erasure. Gosling's Goods, ser's Goods, L. R. 2 P. & D. 40. But, 11 P. D. 79. shortly before, Lord Penzance had , Under a local statute which requires a dubiously admitted to probate a similar will and- a written revocation thereof to memorandum, duly executed as a will, be executed with the same formalities, which added the words " and as yet I such revocation must be established by have made no other" [will]. Hicks, the same kind and measure of. evidence Goods of, L. R. I P. & D. 683. Here as the probate of a will requires. Noyes's the memorandum did more than to re- Will, 61 Vt. 14. See also Burns v. voke; and his lordship distinguished Travis, 117 Ind. 44. between (i) a will or codicil and (2) In certain States where holograph "some writing," the former of which wills are favored, an attested will not alone admitted of probate. written by the testator may be revoked See also Rudy v. Ultich, 69 Penn. St. by his holographic codicil. 78 Cal. 477. 450 CHAP. I.] REVOCATION OF WILLS. § 424 point in doubt. ^ And if it be uncertain from the face of the instruments whether substitution was intended or something additional by way of gift, th© testator's purpose may be cleared by evidence aliunde? But, in general, parol evidence of intent is not admissible unless there is such doubt and ambiguity on the face of the papers as requires extrinsic evidence to explain them.^ § 423 a. No Revocation by an Instrument intended to Con- firm. — A will is not revoked, of course, by a subsequent instrument which was intended to confirm it ; as for example, by a French donation inter vivos, which although adding in effect no strength to the testamentary disposition was in- tended to assure it.* § 4^4- Revocation by Inference of Law; Effect of subse- quent Marriage. — Finally, as to revocation of a will by inference of law. The most striking instance under this head is afforded by the marriage of the testator. If a woman makes a will and afterwards marries, her will is revoked by force of the marriage. This has been the time-honored rule of the common law ; resting not upon mere presumption, but upon the material change which marriage works in the circumstances and condition of every woman, and the new interests she sustains by the very act of taking a husband.^ This change of condition was doubtless greater under the old rules of coverture which placed the wife under her hus- band's protection, disabled her from disposing by will or con- tract without his sanction, and cast her property into a mould convenient for giving the husband the chief control if not the ownership ; ^ yet, by the better opinion (though various States construe to the contrary), it operates to this very day, as a legal revocation, and justly so, despite the new privileges with which equity and modern legislation may have seen fit 1 Jenner v. Ffinch, L. R. 5 P. D. 106. ^ ^ Co. 60 b; Doe v. Staple, 2 T. R. * Methuen v. Methuen, 2 Phillim. 667, 695; 2 P. Wms. 624; Hodsden 416. V. Lloyd, 2 Bro. C. C. 544; Long v, 8 Thorne v. Rooke, 2 Curt. 799. See Aldred, 3 Add. 48; Warner v. Beach, as to ambiguities Part N\. post. 4 Gray, 162; Carey Re, 49 Vt. 236. * Aubett's Appeal, 109 Penn. St. 447. « Schoul. Hus. and Wife, §§ 86-89. § 424 LAW OF WILLS. [part IV. to clothe her.* In truth, modern experience so justifies the doctrine that marriage shall operate as a revocation, if, at all events, no antenuptial arrangement, no provision in view of the marriage has entered into such a will, that, instead of exempt- ing the wife, legislation now inclines to extend the rule tp the husband, by way of equalizing the privileges of the sexes, A man's will, by the older policy of our law, was not revoked by his subsequent marriage at all ; ^ but late statutes in Eng- land and several American States give marriage that absolute effect.^ Either spouse may or may not, under such a policy. 1 Brown V. Clark, 77 N. Y. 369; Swan V. Hammond, 138 Mass. 45; Blodgett v. Moore, 141 Mass. 75; 142 Mass. 242. It is suggested that every will ought to be considered ambulatory; and if a woman cannot by law revoke or make a new will during coverture, her former will made as a feme sole would be irrevocable unless the law thus revoked it for her. But this argument does not cover the whole case; for the new concession of testamentary favors to the wife by modern statute does not change the rule of the text, i Wms. Exrs. 192. In fact the doctrine has a deep foundation in public policy and knowledge of human nature. But in Rhode Island the marriage of 3, feme sole testatrix was treated (contrary to rule) as operating only a presump- tive revocation of her will. Miller v. Phillips, 9 R. I. 141. And in New Jersey and Illinois a woman's marriage was held not to revoke her previous will. Webb V. Jones, 36 N. J. Eq. 163; Tul- ler Re, 79 111. 99. See also Noyes v. Southworth, 55 Mich. 173; Fellows v. Allen, 60 N. H. 439; Ward's Will, 70 Wis. 251; Hoitt V. Hoitt, 63 N. H. 475 ; Hunt's Will, 81 Me. 275. See also the line of argument pursued in Morton v. Onion, 45 Vt. 145. In Carey Re, 49 Vt. 236, it is held that a woman's will of personalty is revoked by her subse- quent marriage, while her devise of real estate is not, under the Vermont statutes. Where our courts, under the iniluence of the late marital^ legislation, treat the wife's will as not per se revoked by her marriage, their main object seems to be to put wife and husband upon an equal plane in this respect. But that effect would be accomplished by causing mar- riage to operate a revocation corre- spondingly of the husband's will. A woman's will is not revoked by her subsequent marriage, where it was made with her intended husband's consent and made part of an antenuptial arrangement between them. Stewart v. Mulholland, 88 Ky. 38; Osgood v. Bliss, 141 Mass. 474- ^ As to the old law concerning revo- cation of a man's will by marriage and the birth of a child, see next section. *This subject is now set at rest in Eng- land by the new Statute of Wills, which enacts that " every will made by a man or woman shall be revoked by his or her marriage," etc. I Vict. c. 26, § 18; Appendix,/orf. See 15 P. D. iii, 152. Among the American States whose legislation is of the same general pur- port, may be mentioned Rhode Island, Pennsylvania, Virginia, West Virginia, North Carolina, Connecticut, Georgian Kentucky, Illinois and California. See I Jarm. Wills, 122, Bigelow's note; McAnnulty v. McAnnulty, 120 111. 26; Ellis V. Darden, 86 Ga. 368; Stimson Am. Stat. Law, § 2676. In Connecticut a testator married be- fore the legislature enacted that mar- riage should revoke a will. He had made 452 CHAP. I.] REVOCATION OF WILLS. § 42$ prove disabled from making a new will at pleasure ; ^ but at all events the will made before marriage fails, as ought every disposition in legal and moral derogation of new conjugal rights, which was not founded in a fair and open treaty and antenuptial settlement between the parties contemplating a marriage.^ The survival of the spouse who disposed by will before or during marriage does not of itself affect the v^^lidity of such testament.* § 425. The Same Subject: Marriage and Birth of Child. — Unequally as the old common law treated husband and wife in respect to their wills, a rule, borrowed from the civilians, has for at least two centuries reduced the difference of their condition ; namely, that if the husband not only married but had a child born to him after making his will, a revocation should be implied.* And the same rule was afterwards ex- tended to marriage and the birth of a posthumous child.^ In applying such a rule, the ecclesiastical courts appear to have long regarded the case as one of presumption merely, and subject, after all, to what, on the whole, the testator might be shown to have actually intended.^ But the common law tribunals, impressed more deeply by the justice of such a policy and the analogy of the wife's condition, solemnly de- cided that the principle was one of legal inference, inde- a will before marriage, which he told his v. Overbmy (1682), 2 Show. 242; wife he would destroy, but he did not Emerson v. BoriUe, i Fhillim. 342, and do so. It was held that, inasmuch as citations. It was subsequently adopted the act should not be deemed retro- in the common-law courts {1771) in spective, he had not revoked his will. Christopher v. Christopher, 4 Burr. Goodsell's Appeal, 55 Conn. 171. 2171, 2181, note. See I Wms. Exrs. 1 As to the disability of a married 193. The American decisions under woman in this respect, see supra, §§ this head are numerous. See Brush v. 45-64. Wilkins, 4 Johns. Ch. 506; Warner v. 3 SchouL Hus. and Wife, § 348; 87 Beach, 4 Gray, 163; Jacks v. Hender- Cal. 643. son, I Desaus. 543 ; Tomlinson v. Tom- » Clough V. dough, 3 Myl. & K. 296; Kmson, i Ash. 224; 4 Kent Com. 537, Long ». Aldred, 3 Add. 48; TrimmeU » i Wms. Exrs. 193; I Jarm. Wills, V. Fen, 16 Beav; 537. See c. 3, /erf. 123; 4 Kent Com. 522; Doe v. Lan- * This rule is of modern origin, so far cashire, 5 T. R. 49; Hart v. Hart, 70 as English law is concerned. It is found Ga. 764; II Phila. no. in Inst. 1. 2, tit. 13. The first reported » Wms. Exrs. 194; 1 PhiUim. 473; I decision in English courts is Overbnry Hagg. 711. 453 § 425 LAW OF WILLS. [PART IV. pendently altogether of what the party himself might have intended.^ Modern legislation robs this topic of its former prominence in the law of testamentary revocation.^ But as numerous States still adhere to the conjugal distinction, we may briefly observe one or two salient points of this doctrine. Marriage alone, or the birth of a child alone, did not operate to revoke the testator's ^ill ; both conditions must have succeeded his act of disposition; and hence the birth of his posthumous child was held by the common law courts not to repeal a will made by the husband during marriage.^ Here, however, the ecclesiastical rule of regarding one's intention had its advan- tage ; for other circumstances might afford a handle for infer- ring that a revocation was really meant ; * nor did such courts positively assert that a marriage subsequent to the will was in every case indispensable.^ Whether the order of events, marriage and birth, is here of material consequence, the cases do not clearly decide.® But at all events, the rule of revocation would apply all the same, whether the testator who re-married was a widower when he executed the will in question, with children by a former wife 1 Marston v. Fox, 8 Ad. & E. 14, Yerby v. Yerby, 3 Call. 357; Havens v. which all the judges of England assem- Van Den Burgh, i Denio, 27. bled to decide, Lord Denman being * i Wms. Exrs. 197; I Jarm. Wills, absent. This was a case of real estate; 124; Johnston v, Johnston, I PHillim. and it may partially explain the contra- 147. dictory opinions held by spiritual and ^ j Wms. Exrs. 197, 198. In Johnston temporal judges on this point, that the v. Johnston, i Phillim. 447, Sir John Statute of Frauds excluded parol evi- Nicholl puts the moral obligation strongly dence of intent as much as possible as respects the birth of issue after mak- where devises were concerned; while ing a will, and concludes that the con- wills of personal property (those with currence of subsequent marriage should which the spiritual courts dealt) were not always be considered essential. But quite unencumbered with such provis- the real difficulty seems to be that the ions. I Wms. Exrs. 196. All this dis- new moral obligation arises when a man crepancy now disappears under the takes a wife and before his child is born. Statute of Victoria, wherever that stat- ^ See i Jarm. Wills, 124. Gibbons v. ute operates. See, further, Israeli v. Caunt, 4 Ves. 848, favors the conclusion Rodon, 2 Moore P. C. 51. that the order of events makes no dif- 2 Supra, § 424. ference; and hence that the rule is sat- ' Wellington v. Wellington, 4 Burr, isfied by the birth of the child subsequent 21 71; Doe V. Barford, 4 M. & Sel. 10; to the will, by a first wife, followed by 4 Kent Com. 523, and c^ses cited; the testator's re-marriage. 454 CHAP. I.] REVOCATION OF WILLS. § 426 for whom the will had provided, or an unmarried man, so far as his personal estate was concerned.^ And we should re- member that revocation of a will, under any such circum- stances, could work no greater hardship than to bring about a descent and distribution of the estate under the just and politic rules which the law prescribed for intestacy.^ § 426. The Same Subject. — But the rule of implied revoca- tion in such cases does not operate where the will itself has provided for the future wife and child;* nor, as it appears, unless the entire estate is thereby disposed of to their uttet exclusion and prejudice ; * neglect of a moral obligation being the point of inquiry, rather than what the testator had in- tended. But, as we have seen, the courts did not harmonize upon the underlying principle ; the ecclesiastical tribunals seeking, on the one hand, in the light of circumstances and the testator's own conduct and declarations, to interpret his purpose ; courts temporal, on the other, pronouncing the revocation absolute, where duty compelled, regardless of one's intention.^ In this country the rule of judicial construction is greatly affected by local statutes on this subject. Some States, as we have seen, make the will of man or woman absolutely revoked (as in England) by his or her marriage ; ® in others the older rule of law still prevails that no revocation of a man's will occurs without subsequent marriage and birth of a child. Whether revocation should operate, however, in this 1 Havens v. Van Den Burgh, i Denio, Brady v. Cubit, Dougl. 40; Marston v. 27. As to land and the rule of the " heir Fox, 8 Ad. & El. 570. Mansfield, Ellen- apparent " in England, see Sheath v. borough and Tindal were in accord on York, I Yes. & B. 390. this point. And see 4 Kent Com. 621 ; 2 Subsequent marriage and the birth Havens v. Van Den Burgh, i Denio, 27; of a child concurring, the will became Jackson v, Jackson, 2 Penn. St. 212. revoked; and though the child should '^ Supra,%/^2e,; Marston w. Fox, 8 Ad. afterwards die, the will was not revived & El. 14; Fox v. Marston, i Curt. 494. vidthout some new act or recognition on But the preceding note indicates that the testator's part, by way of giving it temporal courts were reluctant to en- effect. Emerson v. Boville, i Fhillim. force their own sweeping rule of revoca- 242. tion unless the breach of duty was com- » Kenebel v. Scrafton, 2 East, 530. plete. * Kenebel v. Scrafton, 2 East, 541 ; » Supra, § 424. 455 § 426 LAW OF WILLS. [part IV. latter case as a legal presumption or a mere presumption of fact open to rebutting proof, is not positively and uniformly settled ; but the local enactment guides frequently the favored conclusion.! Children born after the making of a will, pos- thumous or otherwise, are found the subject of still broader enactments,, as for instance in most of the New England and Middle States, Ohio and Indiana; but, on the whole, the policy of such statutes is only to revoke the will so far as to let them in, when otherwise unprovided for, to the share which would have fallen to them in case the father had died intestate.2 Many American codes go still further, and supply the same relief to all children and their legal representatives 1 See the various statutes, those of New York and Alabama, for instance; while some States appear to follow the rule still on common law principles. The Georgia statute speaks of marriage or the birth of a child as revoking. lo Geo. 79; Deupree v. Duepree, 45 Ga. 415. Various other local peculiarities are noticeable. Thus, the New York code makes the case one where a will disposes of the whole estate; subsequent marriage and birth of a child follows, and the wife or issue survives the testator. If the will shows an intention not to make any provisions, revocation is avoided. 2 N. Y. Rev. Stats. 64, § 43; 4 Kent Com. 526, 527. In Virginia and Kentucky a child born after the will, if the testator had no children hefore, revokes, unless such child dies unmarried or an infant; but if one had children before, the after- bom children, unprovided for, work only a revocation pro tanto. 4 Kent Com. 526. For the rules of various States, see Edwards's Appeal, 47 Penn. St. 144; Morse v. Morse, 42 Ind. 365 ; Negus v, Negus, 46 Iowa, 487; I Jarm. Wills, 129, Bigelow's note. An expression of confidence in one's will that the child to be born will be reared honorably by the testator's wife does not prevent the legal revocation from operating. Walker V. Walker, 34 Penn. St. ,4«3. Under the Iowa statute the birth and recognition of an illegitimate child revokes a will previously executed. Milburn v. Mil- burn, 60 Iowa, 411. But cf. Kent v. Barker, 2 Gray, 535. The mere marriage of the testator does not revoke under the Texas statute. Morgan v. Davenport, 60 Tex. 230. Subsequent adoption of a child is held no revocation in Indiana. Dayis V, Fogle, 124 Ind. 41. A Penn- sylvania statute of 1 833 renders a man's will made before marriage- inoperative either as to the wife or the after-born children not provided for; thus estab- lishing only partial intestacy in either case. 121 Penn. St. i. In short, statute expressions vary so greatly in America, that it seems im- possible to extract from our cases a uniform doctrine. ^ This provision is an absolute one, as such statutes are commonly worded, and the revocation is pro tanto, at least, regardless of what the testator may have intended. Waterman v. Hawkins, 63 Me. 156; Knotts z>. Stearns, 91 U. S. 638 ; supra, § 20. But if the will dis- closes, without the aid of extrinsic evi- dence, an intention not to provide, some of these acts appear to avoid a legal revocation. See also Coudert v. Coudert, 43 N. J. Eq. 407; Rhodes v. Weldy, 46 Ohio, 234; Ward v. Ward, 120 111. III. 456 CHAP. I.] REVOCATION OF WILLS, §427 for whom the paternal will makes no provision, and who have had no advancement during the parent's life, unless the omis- sion is shown to have been intentional.^ Under legislation like this last, intention and not moral obligation becomes plainly the ultimate criterion ; and parol evidence may ex- plain whether a child was omitted intentionally or through inadvertence.^ § 427. other Cases of Implied Revocation ; Alteration of Es- tate, etc. — The books state other cases of revocation implied by law ; not, however, without a vague extension of the word " revocation " beyond that genuine repeal of a testamentary, instrument to which it is more properly confined.^ Altera- ^ Supra, § 20. As to, an adopted her, the will does not take full effect. ,\\A «».* o.^ XT r» ... r^ -■ 1 _. /^ ■ T 111 «T_ child, see 89 N. C. 441 ^ Parol evidence is admissible to show whether the omission was intentional or not; the right being reserved to a parent to disinherit his own offspring at discretion. Bancroft v. Ives, 3 Gray, 367; Wilder v. Thayer, 97 Mass. 439; Lorings v. Marsh, 6 Wall. 337. The intention is sometimes shown by the will itself. Prentiss v. Prentiss, ii Allen, 47. But the burden of proof is upon those who set up an intentional omission. Ramsdill w. Wentworth, 106 Mass. 320. The later acquisition by the testator of additional property affords no reason for not applying the usual rule that subsequent marriage and birth of a child revokes. Baldwin v. Spriggs, 65 Md. 373. An antenuptial provision, under a settlement, in favor of wife and future issue may prevent that revocation which the statute imports. Gay ». Gay, 84 Ala. 3S; supra, § 424. And as to non- revocation by marriage alone, where a will made before marriage expressly provided for the intended wife, see Fidelity Trust Co.'s Appeal, 121 Penn. St. I. Under the West Virginia code, where a married woman, having no children, devises all her estate to her husband, and afterwards has issue who survive Cunningham v. Cunningham, 30 W. Va. 599- ' I Jarm. Wills, 147 et seq. ; where a chapter is devolved to "revocation by alteration of estate," with a consider- able exposition of the old law on this subject. Notwithstanding the provisions of the Statute of Frauds on the subject of revocation, it has been held that a will may be revoked by implication or inference of law. "Among these im- plied revocations is any act of the tes- tator which alters the estate or interest held by him in the lands devised at the date of the will; as for instance, a con- veyance of the same, or a valid con- tract to do so. The will takes effect only at the death of the testator. Real property acquired after making the will goes to the heirs. [But see supra, §§ a8, 29.] If, therefore, the testator is not seized at the time of his death, of the same estate or interest in the prem- ises that he was at the time of making his will, the same does not pass by the devise, but goes to the heir. This is held either upon the ground that the alteration of the estate is evidence of a change of purpose on the part of the testator, or more properly, that it works a revocation of the will by depriving the testator of the estate devised, and 457 § 427 LAW OF WILLS. [PART IV. tion of one's estate is particularly dwelt upon in this connec- tion. If a will devises nothing but a particular piece of land, and the testator afterwards sells that land, a revocation of the devise may be implied ; and so if a testament simply be- queaths specific chattels which are otherwise disposed of dur- ing his life, there remains, at all events, nothing for the will to operate upon.i But one's estate may over and over again change in value and specific character between the date of executing it and his death. The proportions as between various beneficiaries may greatly change beyond what he had intended ; he may part with this piece of property and ac- quire that;^ one object of his bounty may die and another may come into existence ; he may even die so involved in debt or utterly bankrupt as in effect to annihilate the gifts which his own testament professes to bestow.^ All this, how- ever, does not, at our day, revoke in any such sense as to set the instrument itself practically aside in whole or in part or disentitle it to probate. The testator's appointment of ex- ecutor still takes effect ; his scheme of disposition is not superseded in form ; only it becomes a matter of practical thus leaves nothing for the will to oper- 507. A particular bequest may, be prac- ate upon at his death." Coulson v, tically revoked by a contract inconsis- Holmes, 5 Sawyer, C. C. 282, per tent with it. Walker v. Steers, 14 N. Y. Deady, J.; Walton v. Walton, 7 Johns. Supr. 398. Ch. 268; Henington v. Budd, 5 Denio, A simulated transfer of the .property 322; Bosley v. Bosley, 14 How. 395; bequeathed should not carry a revoca- Ballard v. Carter, 5 Pick. 116; Kean's tion of the legacy; for the intent of the Will, 5 Dana, 25; 4 Kent Com. 528; 2 testator is thus shown to have been not Greenl. Ev. § 686; I Jarm. Wills, 147- to revoke. Blakemore's Succession 149, and English cases cited. Cf. Pra- (La.) 1 891. ter w. Whittle, 16 S. C. 40. " See supra, §§ 28, 29. 1 A deed or conveyance of all the * No matter how long a man may live property given by the will is >■ revoca- after making his testament, even though tion of the will and may be so pleaded, he should become insane; or how much Epps u. Dean, 28 Ga. 533; Bowen v. his wealth and substance may increase Johnson, 6 Ind. no. If the gift by the or diminish; or what objects of his will is general and not specific, it bounty and affection may die before necessarily fails if there be no such him; no legal inference arises, nor even general property. This, however, a presumption of fact, that he has re- would not be readily ascertainable until voked his will. I Wms. Exrs. 187, 188; the estate was settled; and as prelim- Swinb. pt. 7, § 15, pi. 2; Doe v. Edlin, inary to a settlement, the will semble, if 4 Ad. & El. 582; Warner v. Beach, 4 there be one, ought to be admitted to Gray, 162. probate. See Morey v. Sohier, 63 N. H. 458 CHAP. I.] REVOCATION OF WILLS. § 4270: administration, assisted by legal construction of the will, to determine how far and in what proportions his gifts may- have failed, if they fail at all, under his unrevoked testament. For those principles of construction, search should be made under a different heading from the present. In short, revocation of a particular will by mere inference of law or presumption is limited to a very few instances in our modern practice ; while, on the other hand, changes in the condition of the testator's affairs or through the mortal chances to which both he and his beneficiaries are exposed, may work out a very different settlement and distribution of his estate after his death from what the will purported to arrange. Modern legislation itself repudiates in England and some of our States the whole theory of a presumed intention to revoke on the ground of an alteration in circumstances ; ^ and what is left of that theory, aside from such statutes, it would be very difficult to say.^ § 427 a. Mental Incapacity, Fraud, Force emd Error, in issues of Revocation. — It is readily to be inferred from what has been said, that revocation of a will like any testamentary dis- position, is open to impeachment, in the usual manner, for mental incapacity, or because the exertion of undue in- fluence, fraud or force upon the testator induced the act.^ Even error on the testator's part may be shown to have caused the revocation, where he expressly founds his revoca- 1 Act I Vict. c. 26, § 19; Appendix, greater estate than he possessed when post; 4 Kent Com. 532, 533; Stimson the will was made; nor by the concur- Am. Stat. Law, § 2676. A will in the rence of all these circumstances. Hoitt nature of an appointment of a fund is v. Hoitt, 63 N. H. 475. The law appli- not revoked by the testator's subsequent cable to the testamentary disposition of assent to the diversion of that fund, property — with its inferences as to an Qements v. Horn, 44 N. J. Eq. 595. intent to pass after-acquired property And see Burnham v. Comfort, 108 N. Y. {supra, § 29) has been so far modified rnc. in these later times as to leave instances 2 See Shaw, C. J., in Warner v. Beach, of a total revocation under this section 4 Gray, 163. A will is not revoked by by implication of law almost impossible, the death of the legatees or devisees Morey v. Sohier, 63 N. H. 507, 512. named in it; nor by the alienation of ^ Cf.%^ 384, 387, 395, and cases cited the larger portion of the testator's estate with Part II. supra ; Ross v. Gleason, which was specifically disposed of by his 115 N. Y. 664; Graham v. Burch, 44 will; nor by the acquisition of a much Minn. 33; 49 N. W. 697. 459 § 427 « LAW OF WILLS, [PART TV. tion on the assumption of a fact, derived from the informal tioh he has received from others, which is shown to be false ; though where the fact was peculiarly within his own knowl- edge, error would be unlikely.^ * Mendinhall's Appeal, 124 Peon. St. 387; Campbell p. French, 3 Ves. Jr. 321 ; Evans v. Evans, 10 Ad. & E. 228. 460 CHAP. II.] ALTERATION OF WILLS. § 429 CHAPTER II. ALTERATION OF WILLS. § 428. The VTord "Alteration"; Alteration of Disposition or of an Instrument ; Partial Revocation. — " Alteration of a will " may be understood in either of two senses : first, and more generally, that of changing one's own testamentary disposition, by whatever external acts this may be effected ; second, and more specifically, that of changing the face of the original testament by an outward act which may or may not have been performed by the testator or under his sanction. It may be convenient to treat of this subject in both senses of the phrase. But however we may use the word "alteration," we are not to consider it as involving the idea of a total revocation of the existing will, but only a revoca- tion pro tanto, if a legal revocation at all. A later will is not substituted in place of the earlier one, but there is at most a variation in the former terms, and intent must be gathered from the original will and its amendments taken together. § 429. Alteration of the Instrument to be first considered; Testator's Right to alter. — Let US first consider the more specific alteration, which consists in changing externally the face of the original testament. Acts of cancelling and ob- literating, as well as of spoliation, and their effect in totally revoking a will where the intent accompanies the act, have already been discussed ; ^ and it has been observed that one could partially erase, cancel or even obliterate, a written tes- tament, under the older law, so as only to revoke the will in part, as, for instance, by annulling some particular bequest.^ Now to pursue this latter idea somewhat farther. The 1 Supra, §§ 383-396. ^Sxtpra, § 397. 461 §-43° LAW OF WILLS. [pART IV. material alteration of a deed or contract, by one party under it without consent of the other, avoids the instrument in an extreme case ; otherwise it leaves the estate or interest ac- quired as before ; and the altering party is not free to modify it by his altered intention.^ But a will, having no element of mutuality, but resting in the testator's discretion, the maker may change it at pleasure, provided the formalities of execu- tion which the statute imposes for the better safeguard of such instruments be properly observed. And what we say here of alteration, applies not only to changes of language and expression, but to the striking out of existing words, clauses and sentences, or the interlining and inserting others. § 430. General Right of l^estator to alter. — Independently of enactments later than the Statute of Frauds, in deroga- tion of his informal exercise of discretion, a testator may revoke his will/w tanto, by cancelling or obliterating a par- ticular part of it, as well as by erasure or other spoliation ; the question being one of intention on his part to be gathered from the appearance of the instrument at the probate. Thus, if he tears away, cuts off or cuts through one or more of the devises or bequests, leaving the rest of the instrument, includ- ing signatures and attestation intact, this is understood to import a partial revocation, the annulment of these particu- lar devises or bequests, and nothing more.^ So, if the testa- tor draws his pen through some particular devise or bequest, by an act not deliberative but final,^ that devise or bequest is revoked, though the rest of the will should stand unaltered ; nor is it essential even, that every word in that clause be cancelled or obliterated, for it is enough to strike out an essential part, such as the name of the devisee or legatee ; * 1 II Co. 27; I Greenl. Ev. § 566. Kendall, i Coldw. 557; Tudor v. Tu- 2 Woodward, Goods of, L. R. 2 P. & dor, 17 B. Mon. 383; Bigelow v. Gil- D. 206; Scruby v. Fordham, i Add. lott, 123 Mass. 102. 74; Christmas v. Whinyates, 3 S. & T. » Supra, § 393. 81; Clarke v. Scripps, 2 Rob. 563; ■■ Ravenscroft ». Hunter, 2 Hagg. 68 ; Borden v. Borden, 2 R. I. 94; Kirk- Mence v. Mence, 18 Ves. 350; Sutton Patrick He, 22 N. J. Eq. 463; Brown v. Sutton, 4 Cowp. 812; i Jarm. Wills, Ex parte, I B. Mon. 56; Stover v. 134; i Wms. Exrs. 143. 462 CHAP. II.] ALTERATION OF WILLS. § 431 yet to strike out but once where the name occurs several times, would be insufficient.^ § 43 '■ Intention should accompany ; Alterations 'which do not revoke. — But, as in total revocation, intention should accom- pany the act and be fairly inferable from the manner of the alteration, in order to revoke in part. Where the testator alters certain legacies by erasing and interlining, and then acknowledges the same in the presence of witnesses without signing again, this is not to be pronounced a revocation, total or partial, for it was not thus intended ; but if the statute mode of execution be satisfied, the will conforms to the amended scheme of disposition.^ The addition of some- ■ thing which is imperfect, by reason of informal execution and the like, should not at all events, have the effect of revoking that which was perfect, so as to distort the testator's real meaning.^ In all such cases the testator's obvious purpose is regarded ; and if cancelling or mutilating was part of a transaction intended by him to operate an express change of disposition, or not for the purpose of simply striking out some part of the original will, the failure of this transaction to take full effect leaves the will as originally executed, so far at least as it remains legible.* But the failure of the new disposition by incapacity of the devisee or from other reasons dehors the will would not obstruct one's act of revocation.^ If, again, alterations and obliterations appear to have been only cursory and deliberative, and not intended as final, the 1 Martins v. Gardiner, 8 Sim. 73. because of sudden death, the want of The effect of thus cancelling a clause proper attestation, or any other cause, is, that the instrument, omitting the can- so that the attempted disposition is in- celled clause, is entitled to probate, valid, the cancelling of the first being Myrick Prob. 128. dependent thereon, is null, and leaves 2 Wright w. Wright, 5 Ind. 389; Dixon's the will standing as before. Stover z/. Appeal, 55 Penn. St. 424. A careful Kendall, i Coldw. 557 ; Youse v. For- interlineation is not an "obliteration" man, 5 Bush, 337. within the Will Act. Dixon's Appeal, ib. * Short z/. Smith, 4 East, 419; Wolf 3 Heise v. Heise, 31 Penn. St. 246; v. Bollinger, 62 111. 368; Jackson v. 15 Penn. St. 281. Obliterations and HoUoway, 7 Johns. 394; Stover v. interlineations are inoperative to change Kendall, supra ; Linnard's Appeal, 93 a will, if made with a view of disposing Penn. St. 313. differently, which is not carried out. « Hairston v. Hairston, 30 Miss. 276; Whether the change of purpose fails supra, § 410. 463 § 432 LAW OF WILLS. [PART IV. passages altered or obliterated remain in legal effect as before.! In short, alterations are considered as a whole ; and where something is stricken out simply that something else may be substituted, the failure of the substitution through infor- mality involves the failure of what was stricken out.^ § 432. Modern Legislation treats Informal Alterations with Disfavor. — All such informal alterations, however, are obnox- ious to the policy of our later legislation, which prescribes for wills of personalty not less than realty a formal subscription and attestation. Under many American codes, it may now be assumed that alterations of disposition, whether expressed on the face of the original instrument or by new writings, and especially if the change is not simply a complete erasure or destruction, require a statute execution in presence of wit- nesses in order to operate.^ The English act i Vict. c. 26 is explicit in this respect ; at the same time permitting the testator and witnesses to sign in the margin of the original will or opposite or near the alteration, or opposite or at the end of some memorandum on the will which refers to the alteration.* 1 Parker v. Beiinbridge, 3 Phillim. clauses) for the purpose of substituting 321; I Add. 409; I Wms. Exrs. 143. another disposition, other words, etc., ' A testator made certain erasures and which disposition fails through infor- interlineations in his duly executed will, mality, no partial or total revocation After he made the alterations, two per- takes place, but the will stands as origi* sons, at his request, signed the will, as nally framed. For here the cancella- witnesses to " the erasures and interline- tion or obliteration was with the idea ations made" by the testator. What of substituting; and what is relative or these interlineations, etc., were, the wit- subsidiary cannot take effect by itself, nesses did not know. It was held (i) ^ See Dixon's Appeal, 55 Penn. St. that the alterations did not supersede 424; Quinn v. Quinn, 1 N. Y. Supr. the provisions of the will; (2) that the 437; Eschbach v. Collins, 61 Md. 478. witnessing of such alterations did not The New York code now requires simi- amount to an attestation of the will as lar formalities in altering or revoking a altered; and (3) that the alterations will to those necessary for its execu- did not operate to revoke the original tion. Prescott Re, 4 Redf. 178. will. Penniman's Will, 20 Minn. 245. * "No obliteration, interlineation, or In this case the court discussed the other alteration made in any will, after doctrine of ineffectual revocation, and the execution thereof, shall be valid or rested upon the principle that when have any effect, except so far as the part of a will is cancelled (or words, or words or effect of the will before such 464 CHAP. II.J ALTERATION OF WILLS. § 433 The Statute attestation of an original will is not the attes- tation of the will as altered. And if there is no sufficient attestation of the will as altered, the alteration (as by inter- lining or striking out and substituting) cannot take effect, but the will stands as before.^ § 433. The Same Subject: Effect of Alteration, etc., bo as to render Illegible. — The effect of such legislation, where the alteration by obliteration or cancelling has rendered the original words of the will illegible, requires further considera- tion. Here it may be asked whether the local statute permits of partial as well as total revocation, and whether or not the act in question amounts to a partial destruction of the will within its intendment.^ Partial revocation of a will by burning, tearing, or otherwise destroying, appears still allowable under the English statute, as before ; ^ and thus far an unattested alteration may still operate. But obliteration, or cancellation which does not wholly efface that part of the will and render the expunged words illegible, is no longer effectual without some signing and attestation. And that alteration which consists in sub- stituting or interlining words or clauses requires substantially the execution appropriate to wills.* alteration shall not be apparent, unless ing witnesses. 24 E. L. & Eq. 608; such alteration shall be executed in Blewitt ^<, 5 P. D. 116. like manner as hereinbefore is required * Jackson v. HoUoway, 7 Johns. 399; for the execution of the will; but the Doane v. Hadlock, 42 Me. 73J Penni- will, with such alteration as part there- man's Will, 20 Minn. 245. of, shall be deemed to be duly executed * Supra, § 397, last c. if the signature of the testator and the 8 Supra, § 397; I Wms. Exrs. 128, subscription of the witnesses be made 141, 143. in the margin, or on some other part of * See i Vict. c. 26, § 2j,,citedj«/?-a/ the will opposite or near to such altera- also ib. § 20, which requires revoking tion, or at the foot or end of or oppo- by " destroying." Under §, 21, the site to a memorandum referring to such alteration made in the will after execu- alteration, and written at the end or tion shall not be valid unless they pre- some other part of the will." Act I vent the words originally written from Vict. c. 26, § 21; Appendix, /aj/. Inter- being "apparent" ; that is to say, ap- lineations are consequently valid under parent by looking at the will. If the this act, and entitle the amended will to obliteration was made simply to strike probate, when opposite them are the out or partially revoke, the- obliteration initials of the testator and' of the attest- is sufficient if it amounts to an., erasure, 465 § 435 J-AW OF WILLS. [part IV. § 434. Probate with or without Interlineations, etc. — When a will is informally altered by the testator, as by interlining a new bequest without the statute attestation now required, the legal effect is not to make the will void, but to establish it in probate as it stood before the change was made.^ But where interlineations and alterations are made in the original will so as to conform with the existing statute, or are otherwise legally made, the will with its interlineations and amend- ments should be admitted to probate.^ If a will is altered after execution and then republished and confirmed by a cod- icil, it is enough to show that the alterations were made before the execution of the codicil.^ On the other hand, alterations made in a will by a stranger, after its due execution, and without the testator's knowledge or sanction, do not affect the validity of the testament in other respects.* § 435. Presumption as to Time of Alterations, etc.; Proof. — The question is sometimes asked, at what time alterations in a will shall be dated, where positive evidence is altogether wanting. Not without some controversy in the courts, it appears at length to have been settled, that unattested and unexplained alterations upon the face of a will shall be pre- and the change will take effect accord- stances. If they preceded the formal ingly. But where the obliteration was execution, .they stand as the final ex- made for the purpose of altering the pression of the testator's wishes; but if gift, and not revoking it, and the new made afterwards, the alteration fails gift cannot take effect because the sub- unless the will in its altered shape is stituted words have not been properly duly attested, and probate is granted as attested as the new statute requires, evi- of a valid will, according to its import dence may be adduced aliunde to show as originally attested. Schoul. Exrs. § what the original words were. Soar 84; Wheeler v. Bent, 7 Pick, 61 ; Jack- V. Dolman, 3 Curt. 121 ; 2 Curt. 337; son w. HoUoway, 7 John. 394; Prescott Brooke v. Kent, 3 Moore P. C. 334; i Jie, 4 Redf. 178; Gardiner v. Gardiner, Jarm. 142; I Wms. Exrs. 144, 145. If (N. H.) 1890. it cannot be shown what those words 2 Blewitt Re, 5 P. D. 1 16; supra, § were, probate will be decreed in blank. 248; Penniman's Will, 20 Minn. 245. I S. & T. 238. = Burge v. Hamilton, 72 Ga. 568; 1 While our later legislation quite dis- Tyler v. Merchant Taylors' Co., 15 P. D. courages partial revocation and informal 216. changes in an executed will, alterations, * Grubbs v. McDonald, 91 Penn. St. erasures, and obliterations found in a 236; I Gall. 70; Morrell v. Morrell, 7 will are treated according to circum- P. D. 68. 466 CHAP. 11.] ALTERATION OF WILLS. § 436 sumed to have been made after, and not before the execution of the instrument ; and such is the rule as now announced both in England and leading American States.^ This pre- sumption yields, however, to actual proof ; and slight circum- stances, including the sense or a testator's own declarations of intent before executing his will, may establish the contrary.^ It is unquestionably proper that interlineations or alterations of any kind made before execution should be noted in the attestation of witnesses, and thus obviate all controversy. Where the will was originally prepared with blanks which the testator afterwards filled up, it is presumed that they were filled as they should have been, before the attestation.^ And as all formalities are supposed to have been rightly observed, if observed at all, the mere circumstance that such blanks are filled with a different ink or in a different handwriting from the body of the will does not afford a presumption Of unat- tested and inoperative alteration.* § 436. Alteration in a General Sense expressed by Codicil. — Now to speak of altering one's disposition in the general sense, without confining ourselves to the physical change or mutilation of the original instrument. The natural expression of such alteration, and, in view of late legislation, by far the safer one, is by means of a codicil or codicils, duly executed like any other will ; so that the original undefaced will, to- 1 Cooper V. Bockett, 4 Moore P. C. to h?Lve been changed from 1875 to 419; Greville v. Tylee, 7 Moore P. C. 1873, but the testator died prior to 1875, 320; Shallcross v. Palmer, 16 Q. B. the change is presumed to have been 747; 16Q. B. 745; I Wms. Exrs. 130; made when the will was executed. Mar- Wetmore v. Carryl, 5 Redf. (N. Y.) tin v. King, 72 Ala. 354. Interlineation 544; Dyer v. Erving, 2 Demarest, 160. of a name which manifestly expresses But see Williams v. Ashton, I Johns, the testator's original intention is pre- & H. 115, 118, where Wood, V. C, sumed to have been made before execu- criticises the rule as thus stated, and tion. 6 Dem. 162. intimates that the more* correct view As to the testator's declarations, and would be, that the ontis is cast on the how far they are admissible on this party who seeks to derive an advantage point, see Doe i/. Palmer, 16 Q. B. 747; from the alteration in the will, to adduce Williams o, Ashton, I Johns. & H. 115. some evidence from which a jury may ' Birch v. Birch, i Rob. 675. infer that the alteration was made before * Greville v. Tylee, 7 Moore P. C. the will was executed. 320; 2 Rob. 192; Hindmarch, Goods » Where the date of a will appeared of, L. R. I P. & D.' 307. 467 § 437 LAW OF WILLS. [PART IV. gether with such addition or additions, shall stand in force as one's full last testament, after his death, like a statute with its later amendments.^ We have already defined the codicil, . whose proper office, as elsewhere intimated, is to add to or amend a will by way of postscript, and not to repeal it utterly.2 Such an instrument being to all intents a " will," it is to be executed and held subject to repeal like any other testament. § 437. Codicil does not revoke 'Will except so far as Nec- essary. — Many testamentary causes arise where the effect of one or more codicils upon a prior will has to be considered ;^ and it is a fundamental maxim that no codicil shall revoke a prior will more than is absolutely necessary at all events to give its own provisions effect; unless it contains an express clause of full revocation.* The decisions which turn upon this principle are very numerous and need not be stated at length ; ^ being quite prolix for the most part and involving the construction of language as variable as the details of mental intention itself. Even though the codicil should profess to make a different disposition of the whole estate, the principle above stated is the natural and controlling one.® And words and expressions contained in the codicil may by construction restrict its operation. Thus, it is held that a declared purpose therein to alter the will in one or more stated respects, implies that it is not altered in other respects.'^ And that a specific gift in 1 Supra, §§ 7, 8. previous will contained. See i Jarm. 2 lb.; Fuller v. Hooper, 2 Ves. Sen. 176. 242; Evans v. Evans, 17 Sim. 108. In * i Jarm. Wills, 176, and cases cited; ancient times " codicils " might be made, Duffield v. Duffield, 3 Bligh. N. S. 261 ; as it appears, by those who died without Beckett v. Harden, 4 M. & Sel. i ; Evans testaments; butthis was not usual; and w. Evans, 17 Sim. 86; Tilden w. Tilden, in our modern acceptation, the codicil 13 Gray, 103, io8; Wetmore z/. Parker, is part of a will, for its explanation or 52 N. Y. 450; Lemage v. Goodban, L. alteration, or to add or subtract from R. i P. & D. 57; Brant v. Wilson, 8 the former disposition. I Wms. Exrs. Cow. 56; Johns Hopkins University v. 8; Svyinb. pt. i, § 5, pi. S, 9- Pinckney, 55 Md. 365 ; Bradley v. Gibbs, ' Supra, § 409. 2 Jones Eq. 13. * The testator himself commonly pro- * Harwood v. Goodright, Cowp. 87; duces the uncertainty, by framing the 14 Beav. 583. codicil without a clear idea of what his ' Quincy v. Rogers, 9 Cush. 291. 468 CHAP. II.] ALTERATION OF WILLS. § 438 a will is not revoked by a general gift in the codicil.^ And that a general expression in the codicil must be confined to its meaning in the will.^ And that a clear gift in the will is not revoked by vague or doubtful expressions in the codicil.* But all artificial rules like these should bend to the real inten- tion of the testator, as gathered from the whole face of the paper, aided in doubtful cases by proof aliunde. Other rules of construction, equally pliable, may be cited in this connection. Thus a gift by codicil " instead of," or "in lieu of," what the will contains, means substitution, which may or may not be total, according to circumstances.* The revocation by codicil of one's appointment in a certain capacity, as trustee, for instance, where the will made him both trustee and executor, does not carry both offices, nor affect a legacy bestowed upon him from other considerations.* But where a life interest is given, and a special power of appointment over the property besides, the subsequent revo- cation of all gifts " in favor of " the donor, revokes the power as well as the life interest.® The disposition of the courts to generalize while construing the expression of particular wills must not, however, be taken with too implicit a confidence. § 438. Iiater Provisions, whether by Way of Substitution or Addition. — Whether provisions under a later will or codicil are intended for substitution, or as something additional and cumulative to the gift by the earlier one, must be determined by comparing the instruments to discover their true intent.'^ But in case of doubt an additional gift is presumed rather than revocation ;* unless, indeed, resort may be had to parol evidence outside the instruments for assisting the conclusion.^ 1 Arrowsmith's Trust, 2 D. F. & J. 168; l Jarm. 177, 178; Brownell w. De 474. Wolf, 3 Mason, 456. aQarkew. Butler, I Mer. 304. « i Jarm. Wills, 178; 14 Sim. 89; 8 Randfield v. Randfield, 8 H. L. Cas. Burgess v. Burgess, I Coll. 367; 5 Jur. 225; Joiner v. Joiner, 2 Jones Eq. 68; N. S. 687. 55 Md. 365; 3 Sim. 24; I Jarm. 181; * Brough Re, 38 Ch. D. 456. Kiver v. Oldfield, 4 De G. & J. 30; ' I Wms. Exrs. 167, 185. Payne Re, W. N. (1887) 52. ' Bartholomew v. Henley, 3 Phillim. * March v. Marchant, 6 M. & Gr. 813; 316. 5 Jur. N. S. 12; Hill V. Walker, K. & J. » Supra, § 423. 469 § 439 LAW OF WILLS. [part IV. In general, the different parts of a will, or of a will and codicil, should be reconciled if possible and receive a fair and consistent interpretation.^ But where there is a real discrep- ancy in the gifts between will and codicil, the codicil should prevail in preference.^ A codicil might by its terms vary all former dispositions and yet by its silence leave the original choicfe of executors in force.^ § 439. 'Whether Revocation of the Codicil takes Effect upon the "WiU ; and Vice Versa. — The general effect of one's later and inconsistent will upon his earlier one has already been discussed ; * as also the inferences to be drawn where of two inconsistent wills the testator repeals the later without the earlier one.^ The testator's intention is usually followed, if it may be gathered from the face of the- whole transaction and legislation does not impede. Thus, where a father, angry with his son, cut him off with a shilling by both will and codicil, and then after becoming reconciled to him, can- celled the primitive clause in the codicil, but not in the will (where it consisted of interlined words), the court extended the cancelling act to the will as far as possible.® Where, on the other hand, the will has been destroyed by the testator, but the codicil is preserved which professed to be part of the will, the question arises whether the revoca- tion of the will operates by inference to revoke the codicil also. The answer depends mainly upon the contents of the several papers and the intent to be fairly gathered from the face of the papers, aided, if need be, by extrinsic evidence. If the provisions of the codicil were so dependent on the will as not fairly to stand apart and independently of it, the de- struction of the will carries that of the codicil likewise.^ But if the provisions in the codicil were independent of the iPart VI., posi; Colt v. Colt, 32 ' i Jama. Wills, 139; Usticke j'. Baw- Conn. 422. den, 2 Add. n 6. The English spiritual ^ See Towry Re, 41 Ch. D. 64; supra, courts before i Vict. c. 26, appear to §§ 406, 407. have favored such a construction, in the s Newcomb w. Webster, 113 N.Y. 191. absence of proof shovring a contrary in- * Supra, § 417. tention. lb.; 2 Add. 229; Coppin v. 6 Supra, § 413. Dillon, 4 Hagg. 369. 8 Utterson v. Uttetson, 3 V. & B. 122. 470 CHAP. II.] ALTERATION OF WILLS. § 440 will and capable of subsisting separately, the inclination is to declare the codicil unrevoked, unless from other circum- stances a different intention may be gathered.^ Evidence of actual intent may, however, clear such controversies. Thus, where a testator who had executed a codicil at the foot of his will, cut off his signature from the will only, this was lately held to revoke the codicil also, on proof that such was the testator's intention.^ On the other hand, where, at the tes- tator's death, the sole testamentary papers found were a duly executed codicil and two drafts of wills, as to the execution or revocation of which there was no evidence, the codicil was by itself admitted to probate, as still unrevoked ; and this notwithstanding that the codicil was dependent on the miss- ing will to which it belonged, and could not be construed with- out it.^ The usual and natural plan is of course to revoke by suita- ble act both will and codicil simultaneously, where such is the testator's real purpose, and thus leave nothing in the transaction to doubtful inference. § 440. Misrecital of 'WiU in Codicil; their Mutual Compari- son. — The mere misrecital of a will by a codicil is inopera- tive, and will not modify the dispositions of the original instrument ; but an erroneous recital of a will, coupled with or followed by a clear indication that some modified or incon- sistent disposition is intended by the codicil, operates to modify or alter the earlier gifts.* 1 Tagart v. Squire, I Curt. 289; i further and to hold that the will was Jarm. Wills, 139; Greig Re, L. R. 1 P. destroyed with the intention to revoke, & D. 72. because it is not found among the de- 2 Bleckley, Goods of, 8 P. D. 169. ceased's papers, and then to say that And see Greig Re, L. R. I P. & D. the codicil which is preserved among -2. the deceased's papers was therefore a ' Gardiner v. Courthope, 12 P. D. 14. document which the deceased intended This decision proceeded like others upon to destroy also, is, I think, going beyond the principle, of the probable intention the bounds authorized by the law." of the deceased. "It is perfectly true Butts, J., ib. 17. that the presumption of law, when a * Margitson Re, 48 L. T. 172. A testamentary document in the possession paper, bearing the same date with the of the deceased is not forthcoming at will, similarly executed, and placed in his death, is that it was destroyed with the same envelope, has been pronounced the intention of revoking it. But to go a codicil, though it made no reference 471 § 440 LAW OF WILLS. {PART IV. It often happens that an ambiguity in a will is controlled and guided by the recitals of a codicil.* And in general the reference from the one instrument to the other may be use- ful for explaining the testator's full and final purpose. When a testator by a codicil confirms his will, the will together with all previous codicils is taken to be confirmed. It is sometimes said that a codicil confirming a will makes the will for many purposes to have the date of the codicil ; but this is no technical rule to override the true intent of the transaction, and its force is limited accordingly .^ in language to the will. Perkins v. ^ Darley v. Martin, 13 C. B. 683; Perkins, 84 Va, 358 (one of the three I Jarm. 532. See Part VI., post. judges dissenting). Cf. Gibson v. Gib- ^ Hopwood v. Hopwood, 7 H. L. 728; son, 28 Gratt. 44. Biddulph v. Hole, 15 Q. B. 848; 30 Neb. 149. 472 CHAP. III.] REPUBLICATION OF WILLS. § 442 CHAPTER III. REPUBLICATION OF WILLS. § 44^- Republication defined; Acts Ezpress and Implied. — By the republication of a will is signified that act done by a testator from which the law concludes that an instrument once revoked was intended by him to revive and operate as his last will. The act being sufficient in a legal sense, his new intention is permitted to operate accordingly.^ A revoked will may be republished in one of two ways : (i) by its actual re-execution in effect, which constitutes an express republication of the will ; (2) by less formal acts from which republication may be implied, or as it is some- times called, by constructive republication.^ These methods we proceed to examine in turn. §442. EzpreBs Republication; Statutes requiring Re-execution or a Codicil, etc. — In England, at the present day, and doubt- less to a considerable extent by the force of local legislatioh in the United States, express republication of a will is the only kind recognized. There must be an actual re-execution of the original will ; or, what is tantamount to this, the due execution of some codicil which shows an intention to revive the instrument. This statute rule for a long time affected only devises of real estate ; wills of personalty being capable of implied and informal republication, as they were of informal execution in the first place. The Statute of Frauds, which made a formal execution essential for all wills of land,^ declared, as a part of the same scheme of policy, that no will of lands should be 1 See Bouv. Diet. " Republication." = i Jarm. Wills, 193; Bouv. Diet. " Re- To "revive" a will is used as synony- publication"; i Wms. Exis. 205. mous with " republish." I Wms. Exrs. ' Supra, §§ 252, 253. 205 ; Act I Vict. c. 26, § 22. 473 § 443 LAW OF WILLS. [PART IV. republished, exfcept by its re-execution in the presence of three witnesses, or by a codicil duly executed in like manner. For upwards of a century and a half longer,^ wills of personal property continued capable of informal revival, when the new Wills Act of Victoria so extended the formalities of execution as to embrace wills of whatever property,, and at the same time cut the specious doctrine of informal republication at the root. After January i, 1838, no will or codicil, or any part thereof, which had been in any manner revoked, was to be revived otherwise than by its re-execution, or by a codicil executed with the full statute formalities, and showing an in- tention to revive the same.^ In the United States it has also been held, by construction of local enactments more or less positively worded, that the republication of a will is essentially at the present day the making of a new will, and the usual formalities of execution must be followed.^ §443. The Same Subject. — Legislation of this tenor ex- cludes all other means of showing one's intention to revive his will. Destruction of the revoking instrument, as by burn- ing, tearing or cutting, is not sufficient ; nor do the rules of proof in revocation afford a criterion for proving republica- tion.* As for the execution of a codicil which (agreeably to the terms of the English statute) shows " an intention to re- vive," that intention must appear on the face of the codicil with reasonable certainty, and is not to be gathered from extraneous proof.® No particular words, however, are neces- 1 From 1677 to 1837, to be more pre- * Barker v. Bell, 46 Ala. 216; Penni- cise. man's Will, 20 Minn. 245. In Pennsyl- 2 Act I Vict. c. 26, § 22; Appendix, vania since legislation in 1833 a new post. This section proceeds to state rule has applied. Gable v. Daub, 40 that "when any will or codicil which Penn. St. 217, 230. shall be partly revoked, and afterwards * Major v. Williams, 3 Curt. 432. As wholly revoked, shall be revived, such to the former rule of constructively re- revival shall not extend to so much viving an earlier existing will by destroy- thereof as shall have been revoked be- ing the later one (which this legislation fore the revocation of the whole thereof, changes), see supra, §§ 413-415. unless an intention to the contrary shall ^ Lord Penzance laid down the rule be shown." * at some length in Steele, Goods of, L, 474 CHAP. III.] REPUBLICATION OF WILLS. § 444 sary to be used in a codicil in order to effect a republication of the will to which it is annexed ; ^ and the execution of the codicil dispenses with re-execution of the will itself.^ With regard to the proper method of re-executing, little re- mains to be said. The testator need not sign the will again ; for if he acknowledges his signature before the required number of witnesses with the proper formalities this is good for either re-execution or an original execution.^ Publication and repub- lication call for essentially the same proof.* Generally speak- ing, it is a good republication for a testator to call witnesses of the statute number to such republication, declaring the paper to contain his last will, and then causing the witnesses to subscribe their names by way of attesting the transaction.^ § 444. Implied Republication. — Next, as to implied re- publication, for which, it is plain, little footing is found under our modern enactments. Possibly there are American codes which still leave the law of republication as it stood in Eng- land prior to 1838 ; and in English or American jurisdictions, moreover, wills of personal property made before the change of policy took effect, may still be offered for probate. At all R. I P. & D. 575; holding that the ref- = Brown v. Clark, 77 N. Y. 369. To erence in a codicil by date to a revoked " confirm " in such a codicil means to will was insufficient to revive it, without " revive." App. Cas. (1891) 471. evidence on the face of the codicil that ' See supra, §§ 321-325. the testator so intended. But semble, * Musser v. Curry, 3 Wash. 481 ; express words of such intention may be Simpson Re, 56 How. Pr. (N. Y.) 125; dispensed with, if the disposition made Carey v. Baughn, 36 Iowa, 540. by the codicil is inconsistent with any * i Wms. Exrs. 206, Am. Ed. See other intention. lb. See § 447. also Dunn z/. Dunn, L. R. i P. &D. 277; Reference to " my said will," etc., may Brown v. Clark, 77 N. Y. 369. The well identify the vdll to be revived by present statute of New York on this codicil, unless it appears that there was subject is peculiar; and it is held in a more than one will of the testator in ex- lower court of that State that an oral istence. 2NotesCas. 406; Terrible ^*, declaration by the testator in presence I Sw. & Tr. 140. See further, I Robert, of two witnesses being sufficient for a 583; 2 Robert. 318; Marsh v. Marsh, I valid " publication" (which publication Sw. & Tr. 528. In McLeod v. McNab, is not common in other States, Supra, App. Cas. (1891), 471, a codicil revived § 326) is also sufficient for the republi- by reference a former will; and it was cation of a revoked will. Simpson Re, held that the will was no longer affected 56 How. Pr. 125. by the partial revocation made by an As to republishing a conditional will intermediate codicil. which has failed, by re-execution, etc., 1 Corr V. Porter, 33 Gratt. 278. see supra, §§ 287, 288. 475 § 445 I-AW OF WILLS. [part IV. events, the once honored, theory of reviving a testament by informal acts is worthy of a professional student's curiosity. From 1677 to 1837 in England, and down to a period vary- ing not greatly from the latter date in most parts of the United States, implied republication might operate upon wills of personalty, though excluded as to devises of land by the Statute of Frauds, in pursuance of which attestation became an essential part of the original execution. A will of the former description required no other formality than writing ; and once revoked it needed no re-execution or solemn codicil to revive it ; but republication might be effected by an unat- tested codicil or other writing, and even by the mere parol acts or declarations of a testator whose intention could be thus informally established.^ Such appears to have been the doctrine of our law from the earliest times, so far as wills of chattels or personal property were concerned ; and even a. devise of land, made under the old Statute of Wills, prior to the act of 29 Charles II., permitted of a parol revival in like manner.^ After the Statute of Frauds went into effect, the republication of a will of real estate could not be proved by parol ; but as to wills of personalty the law continued as before.^ §445. The Same Subject: Oral Instances cited. — A will long laid aside and so defaced by vermin or the natural ele- ments that a court might otherwise have supposed it revoked once and for all, can accordingly receive new force by later acts and words of the testator showing an intent that it shall operate; though this may have been by virtue of republishing or as having never in fact been revoked.* A cancelled or obliterated will which remained legible might also be revived by words and signs of the testator showing that he meant it to operate notwithstanding.^ 1 I Wms. Exrs. 206, 207. The objec- ^ Jackson v. Hurlock, Amb. 494; Cro. tion, sometimes suggested, that the pro- Eliz. 493; Alford ». Earle, 2 Vern. 209; hibition of nuncupatiTe wills in 29 Car. i Wms. Exrs. 207. II. § 19, might involve a prohibition of " See Cogdell v. Cogdell, 3 Desau. nuncupative republications, has no force. 346; Havard v. Davis, 2 Binn. 425. 2 Cas. temp. Lee, 494; i Wms. Exrs. * Braham v. Burchell, 3 Add. 264. 66, 68, 206. 6 siade v. Friend, cited in 2 Cas. temp; 476 CHAP. III.] REPUBLICATION OF WILLS. § 445 But the intention to revive or republish one's will of per- sonalty, or treat it as in full existing force, must have consist- ently appeare.d on all the proof ; and where the face of the transaction imported an opposite conclusion, direct and une- quivocal evidence of intent was required ; mere declarations of the testator being treated as insufficient. As, for instance, where two inconsistent wills were left, or a later will with a clause expressly revoking the earlier one, both being preserved together.^ For the attempt to dispute the plain effect of writings by oral or less solemn testimony is to be discouraged. So that, after all, the chief decisions favorable to oral repub- lication seem to have been rendered where the facts left it in doubt whether the will had ever been revoked, and theories of non-revocation or revival led to the same legal result, namely, the establishment of the will propounded for pro- bate. Under all circumstances, the facts should have con- sisted with the intent of republishing or at least of declaring the will to be in present force.^ And in the United States, several decisions announce the rule that a will once revoked by a written declaration cannot be republished by parol.^ Where there is no real revocation of a will, but rather a suspended intention in the testator's mind as between various wills he has duly executed, the practical effect of his final choice among them is favorably regarded in the probate.* Lee, 84; Brotherton v. Hellier, 2 Cas. Baughn, 36 Iowa, 540; Love v. John- temp. Lee, 55; I Wms. Exrs. 211. But ston, 12 Ired. 355. qu. whether a will completely destroyed On the other hand, circumstances of by way of revocation could be repub- intent are favored in some of our cases, lished by oral words and acts. as constituting an oral revival sufficient 1 Daniel v. Nockclds, 3 Hagg. 777; for all practical purposes. Thus, where Stride v. Cooper, i Phillim. 336, per Sir a testator executed a second will, sup- John Nicholl; Witter v. Mott, 2 Conn, posing at the time that his first will was 67; Jackson v. Potter, 9 Johns. 312. lost, and he subsequently found the first, 2 A testator was searching for another and destroyed the second, declaring paper, and one who assisted him took that he preferred the first, the latter up the will by mistake, whereupon the may properly be admitted to probate, testator casually observed, "That is my Marsh v. Marsh, 3 Jones L. 77. We will " ; this was held by Lord Hardwick here suppose that no local statute is insufficient to show animus republi- transgressed by the decision. Semble, candi. Abney v. Miller, 2 Atk. 599. that under circumstances like these the 5 Witter V. Mott, 2 Conn. 67; Jackson first will was never fully revoked. V. Potter, 9 Johns. 312; Carey v. * In Williams v. Williams, 142 Mass. 477 § 44^ LAW OF WILLS. [part IV. § 446. The Same Subject: Oral Revival after Revocation by- Act of Law. — The effect of oral revival where the will has been revoked by act of law may here be noticed.^ The will of a woman ceases to operate on her subsequent marriage ; and although she should survive her husband the will remains inoperative without a republication.^ The question then arises whether informal republication upon her widowhood gives new operation to the will, aside from legislative restriction. It is decided in the English ecclesiastical courts that it does : that her recognition of the revoked will after her husband's death may be by words and conduct.^ But this doctrine receives no extended favor. The will of a woman which became legally revoked by her subsequent marriage acquires no validity at her predecease, though her surviving husband assent to its probate.* Nor is a will, revoked by inference of law on the subsequent birth of a child, or on subsequent marriage, to be considered as republished on merely parol proof, where the local statute requires all wills to be formally subscribed and attested, or where publication is an act sub- jected by local law to written solemnities.^ An express revival of the will which has been legally revoked by sub- sequent marriage, or by marriage and the birth of a child, or by birth of a child alone (as legislation may require) is the desirable mode in these later times ; and executing a codicil to that purport accomplishes usually the result as thoroughly as would the re-execution of the revoked will itself, provided the statute formalities be pursued.^ 515, the final choice of the testator as 'Miller v. Brown, 2 Hagg. 209; between three wills he had fully exe- supra, § 424. cuted was made clear to the court. * Carey, jRe, 49 Vt. 236; supra, § 424. He had destroyed the first and third ^ Carey v. Baughn, 36 Iowa, 540; and preserved the second at his death. Fransen's Will, 26 Penn. St. 202. This was held to sufficiently revive the Semble if publication may be proved by second will for probate, without further parol, so may republication; and vice evidence of republication. Here, ««- versa. lb.; 56 How. N. Y. Pr. 125. ble, the second will had not been fully « Brown v. Clark, 77 N. Y. 369; 2 revoked by the execution of the third. Notes Gas. 406. AAThere a testator 1 Supra, § 424. whose will became revoked by his sub- ^i Cas. temp. Lee, 513; Long w. sequent marriage made a codicil, on the Aldred, 3 Add. 48; WoUaston Re, 12 day of his marriage and after the cere- W. R. 18; supra, § 424. mony, which revived and confirmed the 478 CHAP. III.] REPUBLICATION OF WILLS. § 447 Generally speaking, where a will is revoked by legal in- ference from a change in the testator's condition, a later testamentary writing, duly executed, revives it, if of corre- sponding tenor. ^ § 447- Implied Republication by Codicil or TATriting. — An implied or constructive republication takes place, by a codicil suitably expressed ; and so far as unattested writings served formerly as wills on the strength of one's testamentary in- tent, unattested codicils or mere writings might revive as well as alter a will. Nor by the old law was it necessary to annex the codicil to the former will which it republished,^ nor to expressly republish the former will, provided the codicil appeared to intend republication in effect. A codicil which referred vaguely or even inaccurately to the prior will might yet operate to republish it ; ^ for it was held that every codi- cil is constructively a part of a testator's will, and as such proves that the testator, when he made it, considered his will as then in existence.* This somewhat strained rule of constructive intent, though liable to extend the inference of republishing beyond one's particular intent, yet kept that intent in view for ultimate guidance. For while the rule appeared to justify the con- clusion that the codicil was, by its own force and indepen- dently of any expressed or implied intention to that effect, a republication of the will, unless a contrary intent was indi- cated by the instrument with reasonable certainty,^ yet the will, and the codicil could not be found * Rogers v. Pittis, i Add. 38, citing after his death, probate was granted of Jansen v. Jansen; i Ves. jr. 490. the will and codicil on oral proof re- * Acherly v. Vernon, 3 Bro. P. C. 107; pelling the idea that the testator had Barnes ». Crowe, I Ves. jr. 486; 4 Bro. ever changed his intention. James v. C. C. 2; Duffield v. Elwes, 3 B. & C. Shrimpton, i P. D. 431. 70S; Dickinson v. Stidolph, 11 C. B. 1 Brady v. Cubitt, I Doug. 31. N. S. 341; Burton v. Newbery, L. R. 2 I Wms. Exrs. 211, 212, and cases i Ch. D. 234; Brown v, Clark, 77 N. Y. cited; Acherly v. Vernon, 3 Pro. P. C. 369; Haven v. Foster, 14 Pick. 543; 107. But attaching the codicil to one Corr v. Porter, 33 Gratt. 278; Stover v. of two or more wiUs was regarded as Kendall, I Cold. 557; NeSPs Appeal, effectively indicating that the codicil 48 Penn. St. 501. was intended to republish that particular ^ See Neffs Appeal, 48 Penn. St. will. lb. SOI- 479 § 449 ^^w o^ WILLS. [part IV. question was, whether the particular case fell within the general rule. And where it appeared by the terms of the codicil that it was not intended to operate so as to republish, the usual presumption failed, and no republication took place.^ § 448. General Effect of Codicil in reviving what was im- perfectly executed. — A new will duly executed may stand as a final disposition, whether or not the same idea was initiated in former papers no longer preserved. But according to various decisions, a codicil, as such, may refer and attach to some former invalid testament still extant by suitable and clear expressions so as to confirm and republish, and give valid operation to the whole as one's will.^ As where the former instrument was imperfectly executed.^ Or where it was made while the testator was coerced and the coercion is afterwards removed.* Or in the case of a married woman, disabled through coverture from disposing by her will at the time she made it.^ That the most sensible course, for these days, is to destroy the inoperative instrument, and make a will de novo embodying whatever is desirable in the former invalid instrument, we need hardly argue. § 449. The Same Subject : Former EfScacy of Republishing so as to dispose of After-Acquired Property, — Formerly the 1 Bowes V. Bowes, 2 B. & P. 500; P. (1891) 326. And see Smith Re, 45 Haven v. Foster, 14 Pick. 541 ; i Wms. Ch. D. 632. Exrs.'2i3. 2 Cf. supra, § 281. Where a codicil is made as part of ' Beall v. Cunningham, 3 B. Mon. one's last will, it will be presumed to 390; Harvy v. Chouteau, 14 Mo. 587; refer to the will in existence and in McCurdy v. Neall, 42 N. J. Eq. 333; force, and not to one already cancelled Murfield's Will, 74 Iowa, 479; 15 P. D. and revoked, though both exist unde- 216. But a holographic codicil which is stroyed. Crosbie v. Macdoual, 4 Ves. unattested cannot bring into operation 615; Hale V. Tokelove, 2 Rob. 326. a former invalid will. 83 Ky. 584. See And a codicil which refers to a will of § 255. a particular date, and not to a subse- * O'Neall v. Farr, i Rich. 80. quent codicil, does not operate to re- ^ Braham v. Burchell, 3 Add. 243. publish that subsequent codicil. Burton So, too, und^r the former English V. Newbery, L. R. i Ch. D. 234. Nor Statute, it was held that where an infant does a codicil republish any part of the made a will before he was competent will inconsistent with its own terms, to do so, he might expressly approve 26 Barb. 68. A mere casual reference the will after arriving at competent age. in a codicil to a former revoked will Supra, §§ 39-44. And persons of un- does not revive it. Dennis, Goods of, sound mind might republish, when fully 480 CHAP, iil] republication of wills. § 449 efficacy of a eodicil in republishing a pri6r will Was e&peCially valued, inasmuch as it might enlarge the operation of th6 original testament by disposing of more property. As already observed, a devise, by the technical theory of our earlier law, carried no lands a:cquired after its date ; ^ while republication or a new devise alike required a testamentary writing duly attested, in order to affect one's real estate.^ By virtue of a codicil properly subscribed and witnessed, lands acquired after the date of the will and before the execution of the codicil would pass under the will.^ This furnished a strong motive for giving to codicils the republishing effect ; and such a tarn of cbnstructidn was constantly urged by counsel, sO as to give consistency to the maker's disposition! as a whole, if the language used could possibly bear it. Courts yielded to the pressure ; and even codicils which Expressed no intention to republish, which did n6t refer to the former will nor in terms confirm it, which were occupied, in fact, with property of a different character, rriight, by the sirhple force of reviv- ing the reSiduaify clause of the former will, pass lands ac- quired since the Will was executed.* But a testator's intent Was not to be tortured to produce this result ; and republica- tion might be negatived by the contents of the will itiself,^ or where the words of the will were not general enough. When brought down to date, to supply the dispositioh which the codicil itself omitted.® Since the passage of statutes, Eriglisli and American, which dispense with continuous seisin and permit an original will to opefate upon after-acquired latids wherever the testa^- tbr so intended, this doctrine of revival by codicil has lost its festbred to reason, by an express act. ii. Astor. 16 N. Y. 9; Corr v. Porter, 33 Swinb. pt. 2, § 3,' pi. 2; I Wms. Exrs. Gratt. 278. 225. * lb.; I Jarm. Wilis, 193. 1 Suprd, § 29. ' Strathmore ii. Bowes, 7 T. R. 482; ^ Supra, § 442. York v. Waller, 12 M. & W. 591. 8 2 Eq. Cas. Ab. 769, pi. l; Potter i/. « Parker v. BrisCOe, 8 Taunt. 699; Potter, r Ves. 43?; Piggott v. Wallei^, Monypenny z/. Bristow, 2 Russ. & My". 7 Ves. 98; lililes V, Boyden, 3 Pick. 117'; Havfitt v. Foster, 14 Pick!. 541. 213; Brownel v. De Wolif, 3 Mason, This general doctrine <5f constructive 486'; Diinlap V. Duhlap, 4 Desatis. 365 ; republication under the old law is traced Jdiies V. Hartley, 2 Whart. ^03; Cog- <5ut in i Jarm. Wilfe, 193-204. deliz). Cogdell; 3 DesaiiS. 346; iLangdbii § 450 LAW OF WILLS. [PART IV. prestige.^ As for wills of personal property, they rarely needed this borrowed virtue to enlarge their operation, since a residuary bequest carried by its own terms whatever chat- tels the testator might own at his death.^ Codicils in modern times may well be remitted, therefore, to their more obvious and natural purpose. And courts are confirmed in the posi- tion long ago taken that if the codicil shows on its face that the testator did not intend to republish, it cannot repubUsh.^ § 450. Republication brings down 'WUl to Date. — The gen- eral effect of republication is to make a new will at the date of republication ; to bring the old will down to the new date jjnd make it speak from that subsequent time.* Hence to re-execute, or else to execute a new will, destroying the for- mer one, best avoids difficulties of interpretation to which papers of different date may unexpectedly give rise. Inasmuch as the last will among various ones is the testa- tor's true testament, republication revokes as of its date every former will inconsistent with that which is repub- lished.^ But if the will which is republished had codicils added to it, the presumption arises that the testator means to ratify and confirm the will as amended by its codicils, and not otherwise ; though the true intent of the transaction should control, if discoverable.® A codicil which republishes 1 Supra, § 29. By Stat. i. Vict. c. St. 501 ; Hughes v. Turner, 3 M. & K. 261 § 3i the power of disposing 1^ will 666. as required by that act is extended to * i Wms. Exrs. 216. A will which is all such real estate as the testator may revoked by a second will, and then be entitled to at the time of his death, revived by a subsequent codicil, is to be notwithstanding that he may become treated as of the same date as the codicil, entitled to the same subsequently to the and therefore subsequent to the second execution of his will. And by § 24 a will. Jenkins Re, W. N. (1886) 177. will shall be construed to speak with ^ Rogers v. Pittis, i Add. 38; Wal- reference to the real and personal estate pole v. Cholmondeley, 7 T. R. 138. comprised in it, from the death of the ' Crosbie v. McDoual, 4 Ves. 610; testator, unless a contrary intent shall i Wms. Exrs. 217; UpfiU 11. Marshall, appear by the will. 3 Curt. 636; Wikoffs Appeal, 15 Penn. 2 I Jarm. Wills, 193; Miller ». Brown, St. 281. See i Vict. c. 26, § 22, Ap- 2 Hagg. 209; I Wms. Exrs. 220; supra, pendix, upon a point of construction in § 29. this connection. Republication does ' See § 447; Strathmore v. Bowes, not have the effect of reviving legacies 7 T. R. 482; Neffs Appeal, 48 Penn. which have been adeemed or satisfied. 482 CHAP. III.] REPUBLICATION OF WILLS. §4SO as of its own date may ratify and confirm a will in whole or in part.^ Lo ndon V. Astor, i6 N. Y. q; Paine v. Parsons, 14 Pick. 318. Nor in general to effect, by technical construction, a disposition different from what the tes- tator meant. See Linnard's Appeal, 93 Penn. St. 313. A will altered after 483 execution may be republished, together with those alterations, by a codicil annexed and clearly referring to it. 72 Ga. 568; 15 P. D. 216. 1 Hawke v. Euyart, 30 Neb. 149. PART V. WILLS UPON VALUABLE CONSIDERATION. CHAPTER I. JOINT AND MUTUAL WILLS. § 45 1. 'Wills are Revocable, because of the Nature of a Gift. — We have, consistently with judicial precedent, pointed out the revocable or ambulatory quality of a will during the tes- tator's lifetime as its cardinal feature.^ One may make, alter or revoke his own testament at pleasure, generally speaking, so long as he is an existing, capable person ; and courts have for centuries asserted this as an axiom, without occasion to note whether the rule had not after all some qualifications. But there are qualifications of this rule notwithstanding ; and we apprehend that this revocable quality of a will springs from the deeper postulate that a disposition of property by testament is of the nature of a gift. In the vast majority of cases, indeed almost invariably, the disposition, whether viewed as a whole or with reference to the separate objects of the testator's bounty, is in a genuine sense gratuitous ; the owner regulates the succession to the bulk of his fortune as it may exist at his death, after discharging his debts and obligations ; he considers it lawful for him to do what he will with his own. But the testament operates subject to what his estate may owe, and should his estate prove embarrassed or insolvent the will, though good as an instrument, fails tO" dispose by its strict tenor. In short, the transfer of an estate by gift is obstructed by claims for legal consideration against that estate. 1 Supra, § 374. 484 CHAP. I.] JOINT AND MUTUAL WILLS. § 4S2 When we say that a testamentary disposition, under this primary qualification, is gratuitous^ we mean that there is no binding, no valuable consideration, so far as devise, legacy or bequest may operate. One may give by his will out of affec- tion, friendship, a sense of duty^ even gratitude ; but so far the motive has nothing stronger than a moral consideratibn, and the transfer by succession is in the nature of a gift. For this reason it ought to be revocable ; for such a testament is in its essence a gift upori condition that the testator shall die without meanwhile altering or revoking the disposition. And such is the condition implied not only in a strict testament, but in a gift causa mortis ; the oral will and the oral death- bed gift being doubtless the primitive method of individual transfer for posthumous effect.^ This implied condition in the gratuitous transfer leaves it revocable, wholly or /ra^a«^<;, at the giver's or disposer's discretion. § 452. But a VSTill may be upon Valuable Consideratioa and Irrevocable. — - But a will may be made upon valuable con- sideration in special instances ; and if so, the disposition is no longer in the nature of a gift and gratuitous. Is it then irrevocable ? Here is the diiificult question with which many of the later cases confront us. Waiving, however, for a moment, the practical solution of a remedy, we answer that such a will loses its revocable character and acquires the binding force of a contract tmnsaction; that the testator is no more capable of varpng and regulating that disposition of property at his sole discretion than he was of disposing of his estate so as to give it away over his creditors' heads and regardless of legal demands which might be presented at the settlement of his estate. As a matter of legal principle, then, we must admit that there may be in effect wills rev- ocable and wills irrevocable ; that all testamentary dispo- sitions are not absolutely and completely in the nature of a gift by the disposer ; that a testator's intention must bend to imperious circumstances which interfere with his free, 1 See sufra, § 359; and as to gifts causa mortis, 2 Schoul. Pers.. Prop, zd ed. §§ 135, 136. «88- 48S § 453 LAW OF WILLS. [part v. ambulatory disposition, and mould, partially or it may be wholly, the settlement of the estate which he leaves at his death. § 453. The Rule of Valuable Consideration practically ap- plied; Iiegaciea as Payment for Service, etc. — This rule of valuable consideration we find practically applied where one renders valuable services on the promise of a legacy. One who boards, nurses, cares for, an aged or feeble person, does so, in many instances, on the promise or expectation of a legacy, or it may be, the whole surplus of the estate. Mere • expectation cannot in general create an enforceable contract ; but a mutual understanding may, if shown, afford the basis of a valid claim against the indebted person's estate. If the person rendering such a service was promised the legacy by the person he served, and the claim has legal merits and was more than .the mere performance of some natural duty to another, the courts afford a practical means of its enforce- ment. For if the aged or feeble decedent makes no will, or makes a different will from what was agreed upon, or revokes a bequest which was founded upon his own promise, the claim may be presented for settlement, to the whole or partial absorption of the estate, as the case may be. Probate or common law tribunals cannot set aside or ignore the will as an instrument, nor remodel or construct a will to meet the special compact of the parties ; but treating the person disappointed of his legacy as a creditor of the estate, they apply a simple and available remedy.^ And, upon the same principle of a con- tract obligation on the decedent's part to leave his whole fortune to one who came and took care of him in his declin- ing years, a collateral relative has been permitted to enforce specific performance in equity, so as to sweep in the entire estate over and above the debts, regardless of the dispositions which may happen to be made by the will in favor of others.^ ^ See Shakespeare v. Markham, 17 Stones. Todd, 49 N. J. L. 274; Hudson N.Y.Supr. 311, and cases cited; Schoul. v. Hudson, 87 Ga. 678; Newton v, Dom. Rel. 3d ed. § 274; 11 Phila. 93; Newton, 46 Minn. 33. Wellington v. Apthorp, 145 Mass. 69; " Schutt v. Missionary Society, 41 Whetstine v. Wilson, 104 N. C. 385; N. J. Eq. 115. Here the agreement 486 CHAP. I.] JOINT AND MUTUAL WILLS. § 454 But where the amount and mode of compensation had been left to the decedent, and some provision was made accordingly by his will or otherwise, for the person rendering the service, the latter must remain bound by it.^ And by electing to re- ceive the benefits under the will, such claimant waives his rights under the contract.^ There are other ways in which a will may be disregarded so' far as it is inconsistent with a previous contract or cove- nant. Thus, in a Pennsylvania case, C, after covenanting in a sealed instrument and for a valuable consideration, that he would not by deed, devise or otherwise, interfere with the rights of his heirs-at-law as to their free and equal share in 'all his real estate, made a will, wherein he devised his real estate to certain heirs, without including his grandson T. therein. It was held that T. was entitled to recover in eject- ment his interest as an heir of C.^ On the same general principle an ante-nuptial contract may hinder the free testa- mentary disposition of a contracting spouse.* § 454. Contract for a Certain 'Will specifically enforced in Equity. — Courts of equity have gone farther than this ; and the principle, which in the present day appears to be asserted, was established by correspondence. See dison v. Alderson, 8 App. Cas. 467; next section. Davis v. Hendricks, 99 Mo. 478; 6 1 Lee's Appeal, 53 Conn. 363. In Dem. 473; 31S. C. 605; 74 Wis. 176; considering what is due the disappointed Rice v. Hartman, 84 Va. 251. promisee, all proper offsets must be made. The obligation to remunerate for such Hudson V. Hudson, 87 Ga. 678. services, as promised, is not impaired, 2 Towle V. Towle (Wis.) 48 N. W. although the consideration is to be 800. Nor to such contract, when oral, wholly or in part in the future, and does the objection of the Statute of though the person to whom the promise Frauds apply; for it is not for the sale was made remains under no binding, of lands or goods, and it may be per- mutual obligation on his part. C. Allen, formed within a year. Wellington v. ]., in 145 Mass. 69. Apthorp, ib. But any oral contract to A written contract to bequeath one- devise all one's property, real and per- half of one's estate to A. is not void for sonal, to a certain person, semble, would uncertain description. Koebl v. -Hau- be obnoxious to the Statute of Frauds, messer, 114 Ind. 311. Ib. Ellisw. Gary, 74Wis. 176. Cf Bur- s Taylor !>. Mitchell, 87 Penn. St. 518. gess w. Burgess, logPenn. St. 312. See See also, as to a bond conditioned to next section. And any oral agreement leave a certain farm by will. Major's of this kind should at all events be clearly Appeal, 126 Penn. St. 109. And see proved. Burgess v. Burgess, ib.; Mc- 124 N. Y. 433; 46 Minn. 33. Keegan v. O'Neill, 22 S. C. 454; Mad- * Cole v. Society, 64 N. H. 445. 487 § 454 LA)V OF WIL^S. [part V. is, tha!t where one contracts upon valuable consideration t9 execute a will after a certain tenor, the agreement is bidding upon his death, and njay be specifically enforced againsj: his representatives a^d his estate.^ For a trust is thus fastened upon the property of the promisor which biijds the estate at his death. Nevertheless a devisee comes within tl?e legal definition of one who takes by purchase ; and hence to an oral coiitract of this character, the Statute of Frauds may be pleaded; 2 and it is possible that other technicd objections may be raised under the Statutes of Wills. Ap adopted child, who, in consideration of adoption, was promised all jthe testator's property at his death, has been recently permitted to enforce specific performance out of the estate, to the subversion of a will ; ^ but not where the decedent's promise 1 Walpole V. Orford, 3 Ves. 402; Caton V. Caton, L. R. 1 Ch. 137; s. c. L. R. 2 H. L. 127; Gould v. Mansfield, 103 Mass. 408; Anting v. Davis, 38 Miss. 574; 11 Ired. 632; Izard v. Mid- dletpn, I Desaus. 116; Day, Ex parte, I Bradf. 476, and cases cited; Bolman V. Overall, 80 Ala. 451; Carmichael v. Carmichael, 72 Mich. 76; 73 Mich. 483. ^ Walpole V. Orford, 3 Ves. 402; Harder v. Harder, 2 Sandf. Ch. 17. The want of part performance in a contract t9 sell land may thus be set up. Gould V. Mansfield, 103 Mass. 408; Ellis v. Gary, 74 Wis. 176. But part perform- ance by the testator may sometimes be shown, so as to take the case out of the Statute of Fraujds. Sharkey v. McDer- mott, 91 Mo. 647. Part performance by the promisee ^lone is insuQcient. Ellis V. Gary, 74 Wis. 176. Where the promise is to devise and bequeath all of one's real and personal property, it is indivisible; and failing as to the real property, it fails also as to the personal, lb. See Bird v. Pope, 73 Mich. 483. But though the oral agreement may not be enforceable, t Jie value of one's services rendered in consideration may be recov- ered. See § 453; Stevens v. Lee, 70 Tex. 279. An agreement to leave property to several persons by will, share and share alike, is several as to each of the prom- isees, and they cannot join in enforcing it. Myers v. Gronk, 45 Hun, 401. Pro- bate proceedings, in the allowance of claims against an estate, must be dis- tinguished from specific performance in equity. lb. And the executor should be made a party to any such procepdr ings for subverting the provisions of a will. Cole V. Society, 64 N. H. 445 ; 58 Hun, 610. "If, then, the agreenient be specifi- cally enforceable against the defaulting party's representatiyes, it would seeni that it might have .been enforceable against the party himself during his lifetime; refusal or attempted revoca- tion as to that party not being ground merely for an action for breacji of con- tract. Hence there is here in effect a case of an irrevocable will, whether the agreement be carried out or not." i Jarm. Wills, 18 Am. ed., note by Bigelow. Where a husband and wife are diily empowered to dispose of an estate by wUl, and they jointly make and duly execute a will, it is not in the power of either, by a separate act, to revoke that will. Breatwitt v. Whittaker, 8 B. Mon. 530- ' Sharkey v. McDermott, 91 Mo. 647. 488 CHAP. I.] JOINT 4NI) MUTUAL WILLS. §455 extended only to treating the adopted child like a jiatural one.i' Positive decisions enforcing tji^ specific performance of an unexecuted will are sparsely to be foynd,. But in equity a will which is once formally made in gonfornaity .to some agreement may be upheld as originally executed on the strength of some yaly^bl^ consideration therein interposed ; the effect of which might possibly be (o make the will prac- tically irrevocable, unlgss §ome matter of form, some technicai arbitrary rule springing put of the statute, or the necessary form or construction of thp will should defeat what the parties had mutually intended.^ There is n,ofhing unlawful in such a compact,, nothing cpntr:ary to good inor^ls.' § 455. Joint or Mutual Wills. — It is und^r the head pf joint or mutual wills that our co,urt§ often discuss this irrevocable quality of a will under those exceptional circum- stances which import a valuable and reciprocal consideration, And it is here courts of pquity take up the difficult problem of enforcing a specific performance, so to speak, of the tes- tamentary disposition, pr rather of a testamentary compact, involving the making of .the joint or mutual will in accord- ance with the mutual agreenient of' the parties. One prom- ises to make a will of all his property in fayor of a second person, who in consideration thereof agrees to nciake a similar will in favor of the first : the advantage thps to accrue being to such of the two as may happen to survive the other. Or the joint consideration may relate to a disposition in favor of third persons ; though here, as we shall see, cpurts are not so well disposed to enforce the cumbrous arrangement. 1 Davis V. Hendricks, 99 Mo. 478. covenant, see Armstrong w. Armstrong, And see Snyder v. Snyder, 77 Wis. 95, 4 Baxt. 357. That transactions for where specific performance was refused, posthumous efifect are not usually wills Cf. Austin V. Davis (Ind.) 26 N. E. if of a revocable character, see supra, 890. § 274; 97 Penn. St. 313. 2 Bradford Surrogate in Day, Ex * i Bradf. 467. See the late case parte, \ Bradf. 467; cases cited in next of Bolman v. Overall, 80 Ala. 451, sectipn ; Schumacher v. Schmid|, 44 where an executed will was in fact de- Ala. 454. As to a will given upon some liveied. cpnsideration by way of an independent 489 § 4S6 LAW OF WILLS. [PART V. § 456. The Same Subject; Joint or Mutual Willa as to Probate. — When these mutual or conjoint wills first came up in practice, the common law and spiritual courts of England pronounced against them. A mutual or conjoint will, it was said, is unknown to the testamentary law of this country.! These courts saw, doubtless, that to give the con- tract under which such wills were made a practical operation as mutually intended was beyond their own jurisdiction ; and regarding the instrument simply as a will the irrevocable nature of such a writing interposed to their minds a strong ground of objection. The same unfavorable position is taken by some of our earlier American cases.^ But the later and better opinion, in both England and the United States, treats the conjoint or mutual will as capable of probate, provided it has been executed with all the statute formalities requisite for other wills, and has not been revoked by some later instrument. The real point of decision by Sir John NichoU in Hobson v. Blackburn ^ (the leading case adverse to such wills) was that such an instrument, though jointly executed, could not be set up in probate against the later will of one of the parties which revokes his share of the mutual disposition ; in other words it only denied the theory that joint wills were irrevocable, in the strict testamentary sense, unless by the joint or mutual concurrence of the testators. Joint dispositions of property, under a testamentary instrument, are, therefore, though irrevocable in equity as a compact, revocable as a will by either testator in the usual manner so far as relates to his own disposition. But, on the other hand, if either testator dies without revoking his dis- position, the will may be admitted to probate as his last and separate will, on proof of due execution as in other cases, notwithstanding some one else executed and disp'osed of property by the same instrument.* Hence a conjoint or 1 I Wms.Exrs. 10, 124; Darlington z/. ' Hobson z;. Blackburn, j»/;-3. And Pulteney, i Cowp. 268, per Lord Mans- see Schumacher v. Schmidt, 44 Ala. 454. field; Hobson v. Blackburn, i Add. 277, * Stracey, Goods of, Dea. & Sw. 6; per Sir John NichoU. Lovegrove, Goods of, 2 Sw. & Tr. 453; 2 Clayton v. Liverman, 2 Dev. & Bat. L. R. 4 P. C. 236; Diez Re, 50N.Y. 88; 558, Daniel, J., dissenting. Dufour v. Pereira, I Dick. 419; Day, 490 CHAP. I.] JOINT AND MUTUAL WILLS. § 457 mutual will, is not necessarily invalid, even when viewed for probate merely and in the simple sense of a testament.^ That the will happens to be made in conformity to some agreement, or imports on its face a mutuality of testamentary purpose, and a compact not to revoke without a joint assent, does not defeat its character as a will.^ § 457- "^^^ Same Subject : Some Cases show Reserve and attempt Distinctions. — But some of the cases which concede that such complex wills may pass to probate, discuss the doc- trine with reserve and attempt some distinctions ; shrinking evidently from sanctioning methods of disposition so unusual, beyond what the necessities of the case actually called for. Hence the law of mutual wills is still in a somewhat confused state, regarded as a doctrine of general jurisprudence. While admitting that two or more persons may execute a joint will capable of operating as if executed separately by each testa- tor, and requiring a separate probate on the death of each, some cases appear to confine the rule to wills which are to operate exclusively in favor of the survivor. They refuse to extend the rule so as to admit to probate a will which treats the separate property of each owner as a joint fund and be- queaths or devises in favor of third parties.^ The reciprocal or mutual will, it is said, amounts simply to the separate will of the first decedent ; but the joint will which disposes to third parties is more complicated and ought not to be admitted to probate.* .ff^c/ay^^, lBradf.467; Evans w. Smith, 'Lewis v. Scofield, 26 Conn. 452; 28 Ga. 98; March v. Huyter, 50 Tex. 243; Evans v. Smith, 28 Ga. 98. Schumacher v. Schmidt, 44 Ala. 454. * Walker v. Walker, 14 Ohio St. 157- 1 lb. And see observations of court in Schu- 2 This whole subject is discussed with macher v. Schmidt, 44 Ala. 454; 35 La. masterly force by Bradford Surr. in Day, Ann. 865. Ex parte, supra, and the doctrine of The following serves as an example the text is broadly asserted. Reciprocal of a good mutual will, jointly executed, wills seem to be sanctioned by the civil Two sisters, J. and P., signed a duly law. lb.; Domat, pt. 2, lib. 3, tit. i, attested instrument, substantially as fol- § 8, art. 20. Under the Louisiana code lows : " Know all men that we, J. and " unity of confection " is prohibited; but P., do covenant and agree that, for the as to how far this applies, see Wood v. love we bear to each other, whichever Roane, 35 La. Ann. 865. of us be the longest lived shall be th § 459 ^^'"^ '^^ WILLS. [part v. Such a distinction appears to lose si^t of the vital element to such transactions, namely, a valuable and mutual consider- ation interposed ; it rests rather upon the view that such com- plex wills are impolitic and only admissible in law under a qualification, But we must conclude that, at the present stage of our law, the reciprocal or mutual will of two or more testators stands on a stronger footing than joint wills, or those joint wills at least which are expressed for the benefit of non-executing parties. § 458. A 'Will jointly executed which dlBposes only of xm.9 Person's Property is not a Joint 'WiU. — If the property dis- posed of by a testament belongs to one only of the executing parties, the mere joinder of another in the execution, does not make the instrument what the law terms a joint or mutual will. As where, for instance, a husbapd and wife join in devising real estate by a wiU of which the husband was the sole owner.^ Such a will, though joint in form, myst be regarded as the will of the party who owns the property, and the execution of the non-owner is mere surplusage. § 459. 'Where Probate must be delayed until Both or All Testators die. — Where the transaction we are considering is such that the joint or mutual disposition cannot take the effect intended until both or all of the testators die, public policy receives a ruder shock. The probate courts of Eng- land and some of our States, however, stand by the conse- quences, and pronounce that probate must be delayed in such a case until both or all of the testators die.^ But delicate and important questions in this connection remain unan^ swered ; as, for instance, how the first decedent's estate shall heir of the other." Evans v. Smith, devised reciprocally to each other by 28 Ga. 98. And see Lewis v. Scofield, such a will. And Belts v. Harper, 39 26 Conn. 452. A will like this, it is Ohio St. 639, supersedes 'Walker, 14 suggested, construed according to the Ohio St. 157, as to the impolicy of joint legal effect of its language, undertakes wills. only to operate on the will of the sister ^ Rogers, Appellant, II Me. 303; who should first die, and only upon her Allen v. Allen, 28 Kan. 18. estate ; and predecease without revoca- ^ Raine He, I Sw. & Tr. 144. And tion settles the disposition. In Diez see Schumacher v. Schmidt, 44 Ala. J?e, 50 N. Y. 88, husband and wife 454. 492 CHAP. I.] JOINT AND MUTUAL WILLS, §460 meantime be settled and disposed of and whether a title can in any sense devolve under his will. In Ohio the latest de^ cisions give a heartier support to the policy of joint wills than formerly; and it is held that tenants in common of land, owning personal property in severalty, may rftake a joint will disposing of all their property severally, which will take effect on the death of all.^ But according to the view taken in Arkansas a joint will conditioned to take effect upon the death of both is invalid ; and a will must take effect at th« testator's death and not at a more remote period.^ § 460.. Joint or Matuzd VSTill conditionally expressed."' — Where a joint will is expressed to take effect conditionally or upon a contingency, and the contingency does not happen, the joint will is inoperative even to revoke a previous will^ 1 Betts V. Harper, 39 Ohio St. . 639. So far as Walker v. Walker,. 14 Ohio St. 157, intimates that the policy of Ohio is opposed to joint wills, it is here reversed. In the present case the twoi testators desired to devise to A. and B. the undivided share which each had in the real estate. They could have exe- cuted separate wills, but preferred to make a joint will.. This instrument was,, in effect, the separate will of each, and either one might have revoked it so far as it was her will. Oh the death of the first testator, the instrument might have been admitted to probate as her will; on the death of the other it might have been admitted as the will of that per- son; but not being offered at all until the death of both testators, it was prop- erly admitted to probate as the will of each and both. In Kentucky a joint will executed by two brothers, who died a few years apart, was admitted in probate aS the will of each in turn, and arterwards pronounced a valid instrument. Hill V. Harding (Ky.), 17 S. W. 199. '^ Hershy v. Clark, 35 Ark. 17. And see supra, § 293. It is also suggested in this case that neither law nor equity ought to enforce a contract as irrevoca- ble which allows one not only to denude himself of all control of all he then possesses, but also of all that he may afterwards acquire. ^ Hugo, Goods of, 2 P. D. 73. Here husband and' wife executed a joint will, which was expressed to take effect in case they should be called out of the world at one and the same time, and by one and the same accident. The hus- band- died in the life-time of the wife, and it was held that the contingency did not happen'. . As to the joint or mutual wills of husband and wife, see also § 62; Alter's Appeal, 67 Penn. St. 341 ; Wyche v, Clapp, 43 Tex. 543. 493 PART VI. CONSTRUCTION OF WILLS. CHAPTER I. GENERAL RULES OF TESTAMENTARY CONSTRUCTION. §461. Modern Precedents yLsuaj; Deeds and Wills com- pared. — The great and growing host of cases confronting us in, the reports, which involve the interpretation and effect of particular testaments and testamentary provisions, by no means betokens a concretion into well-ordered principles. It is rather a multitude of precedents without array ; each serving its own capricious purpose except for some lesser rules of constraint. So long as the world lasts, those diversely interested will dispute the meaning of written phrases on which turn their several pecuniary rights ; and no writings can be more fruitful of litigation, unless the tie of family binds fast, than those mysteriously framed and unexplained by which the dead has sought to place fetters upon the liv- ing ; the more so, that men reputed among the wisest of their day in affairs, have left wills behind them the strangest, the most ambiguous, the most carelessly drawn of all docu- ments. The law itself fosters uncertainty in such cases by refusing to subject this class of instruments to rigid rules of construction, but making what it may of a testator's lan- guage, be it as slovenly and illiterate as it may ; our policy be- ing to give the greatest possible scope to each dying owner's wishes, provided he executed his will with due formalities. Indeed, without family dissension at all, resort is often had to the court to determine how the particular will shall be con- strued, so as to enable executors and trustees to perform their duties intelligently. There exists, then, this striking difference between deeds 494 CHAP. I.J GENERAL RULES OF CONSTRUCTION. § 462 and wills ; that deeds, and most especially deeds of real estate, employ a precise phraseology, whose meaning is well defined by the courts and adhered to in common practice ; whereas wills may vary in expression as well as idea, according to the governing ideas of each testator. Deeds pursue a certain form familiar to professional advisers ; while, wills on the other hand are often drawn up in contempt of professional advice, and may employ terms as informal as a private let- ter or business memorandum ; many a disposer, in fact, flat- tering himself that simple words make one's meaning the clearer. This peculiar indulgence of our law to wills. Lord Kenyon and other judges have openly regretted;^ but mod- ern courts show no disposition to withdraw it, preferring on the whole the risk of increased uncertainty and litigation to that of perverting one's disposition, on technical grounds, from what he obviously intended. Deeds and verbal preci- sion, too, we associate with transfers of land ; while wills which pass the title to the bulk of one's estate, to his prop- erty, both real and personal, demand the widest latitude of expression. § 462. Rules of Testamentary Construction are of Iiimited Scope. — In wills, therefore, a testator's meaning is the great criterion, so far as mere interpretation is concerned. What he intended the courts strain to discover. There are rules, those which restrain perpetuities, for instance, or forbid mort- main, which must operate above and independently of any testator's intention, upon reasons of sound policy ; but a mere rule of testamentary construction embodies a simple pre- sumption, and no more, namely, that the testator intended one disposition rather than another or any other. Hence is it that a court may lay it down, in case of doubt, that the testator probably meant to dispose after a certain fashion, since otherwise he would have transgressed the rule against perpetuities, mortmain, or the like, and defeated his own in- tention. Our rules of construction determine, then, the con- struction which courts are bound to put upon particular 1 Lord Kenyon in Denn v. Mellor, S T. R. 558, 561. 495 § 4^3 LAW OF WILLS. [part VL words,, phrases, and' forms of testamentary disposition, in question, in the absence of one's sufficiently declared inten- tion to the contrary! A testator cannot override rules founded in policy ; but any mere rule of construction may be overborne by the well-declared purpose of his will. It follows that in our modern practice, EiSglish and Amer- ican, these rules of testamentary construction have but a limited and subordinate application. They come chiefly into play where the testator has omitted matters of detail not affecting the vital character of the instrument, or where he has employed sortie careless and ambiguous expression which requires to be toned or explained ; but in general questions where the whole frame and language bear upon the particular construction, such rules are of little practical avail.^ Certain Words and expressions,, when standing unexplained, acquire from these prfecedents a somewhat definite meaning ; but if it could once be a question whether of not technical phrase's should conclude a testator's intention, it is no longer doubt- ful that his intention is paramount. The same literal expres- sions in two wills might demand the same construction ; but unless the two wills are identical throughout and dispose of similar fortunes under' similar circumstances (as can seldom happen), a precedent fails of its full force. New kirids of property, moreover, haVe come into existence ; new and com- plex modes of transfer and disposifibh attend the modern advance of society ; and under any and all circumstances the language of wills may be presumed to express the sense of the testator according' to his own aige and surroundings, rather tiian any permanent or universal meaning. § 463. The Same Subject. — ^ A bias at one time in favor of the precedents of construction and at another against 1 See Hawkins's Construdtion of the saving clause, ' unless a contrary WillSj pfeface. "A rule" Of 'coriStruC- intention- appear by the will'; though tion," observes this careful writer, " may some- rules are much stronger than always be reduced to the following others, and require a greater force of form': certain words or expressions, inl*enfioti iti the context to control which may mean either x ot y, shall, them." lb; prima facie, be taken to mean jr. A ^2 Jarm, Wills, 838. rule of constcuctiori- always contains 495 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 463 them may be gathered from the language of courts and text- writers on this subject. Jarman, a respected authority, while deploring that license of construction which sets up the in- tention to be collected upon arbitrary notions as paramount to the authority of cases and principles, takes care to remind his readers that while courts speak of the testator's intention as the governing principle, the judges submit to be bound by the precedents and authorities in point, and endeavor to col- lect the intention upon grounds of a judicial nature as distin- guished from arbitrary occasional conjecture. '"The court," observes an English judge, " must proceed on known princi- ples and established rules, not on loose conjectural interpre- tations, or by considering what a man may do in the testator's circumstances."^ But, after all, authority in the mere verbal interpretation of wills carries no great weight, especially if the words and tenor of the whole will are not absolutely iden- tical.2 The construction given to a verbal expression in one will is no positive criterion for all wills containing the same expression.^ And one of the most eminent American judges of our times, impressed with the inefficiency of the adjudged cases as guides in the construction of wills, has doubted whether any other source of enlightenment on this subject 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 extrinsic circum- stances surrounding its execution and connecting the parties and the property devised with the testator and with the in- strument itself.* It is not improbable that in England, where so much of the property upon which wills operate, is fettered by entails and settlements, more respect would naturally be paid to prece- 1 lb-, citing Henley, L. K. i ed. 43. circumstances in relation to their estate, 2 See 6 H. L. Cas. 108; 4 Ch. D. 68. family, and friends. And it would be ' Smith V. Bell, 6 Pet. 68; per Mar- very unsafe, as well as unjust, to ex- shall, C. J. pound the will of one man by the con- * Mr. Justice Miller, in' Clarke v. struction which a court of justice had Boorman, 18 Wall. 493. " No two wills, given to that of another, merely because probably, wereevSTwritten in precisely similar words were used in particular the same language throughout ; nor do parts of it." Taney, C. J., in Bosley v, any two testators die under the same Bosley, 14 How. 390, 397. 497 § 464 I-*W OF WILLS. [part VI. dents of construction than in the United States, where the transmission of property is comparatively free.^ But even in England, as Jarman admits in his summary after carefully collating the precedents of the English courts, many of the so-called rules of construction involve uncertainty in their application to particular cases, while in a few instances the rules themselves are still subjects of controversy.^ The Statute 1 Vict. c. 26 has settled many questions in that country regarding real estate, and yet precedents of testa- mentary construction rapidly encumber the reports.* § 464. DifBonlty of applying Rules of Interpretation. — . Judge Story, while inculcating the. duty of respecting prece- dents, wherever the intention of a testator is to be searched out and fixed, and those precedents more especially on which depend the foundation of wills to real estate,, has declared his own conviction that the difficulty of construing wills in any satisfactory manner renders this one of the most per- plexing branches of our law. " The cases," to use his own words, "almost overwhelm us at every step of our progress; and any attempt even to classify them,, much less to har- monize them, is full of the most perilous labor. Lord Eldon has observed that the mind is overpowered by their multi- tudes, and the subtilty of the distinctions between, them.* To lay down any positive and definite rules of universal appli- cation in the interpretation of wills, must continue to bCj cis it has been, a task, if not utterly hopeless, at least of extraor- dinary difficulty. The unavoidable imperfections of human language, the obscure and often inconsistent expressions of intention, and the utter inability of the human mind to foresee the possible combinations of events, must forever afford an ample field for doubt and discussion, so long as testators are at liberty to frame their wills in their own way, without being tied down to any technical and formal language. It ought not, therefore, to surprise us, that in this branch of the law the words used should present an infinite variety of combina, y See I Redf. Wills, 423. » lb. 2 Jarm. Wills, 839. * Jesson v. Wright, 2 Bligh, 50. 498 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 466 tions, and thus involve an infinite variety of shades of mean- ing, as well as of decision." ^ Time adds to the force of these utterances which were made from the bench more than half a century ago. " Of all legal instruments," to quote from Justice Miller, " wills are the most inartificial, the 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." ^ § 465. Construction aided or unaided by Extrinsic Evidence ; the Latter here considered. — The construction of any will may, according to the special circumstances, be treated as aided or unaided by extrinsic evidence. It is the latter case, and the usual one, to which this chapter must be confined ; and we may observe that the general rule of our law excludes parol evidence of what the testator actually intended, except in equivocal and ambiguous cases to be noted hereafter.^ A will in modern times is a written instrument ; and the interpreter of such an instrument must draw his conclusions from an ac- curate study of the document itself, unaided by external testi- mony.* For what the instrument, once admitted to probate, says plainly upon its own face is not to be disputed by evi- dence aliunde. § 466. Cardinal Rule that Testator's Intention shall prevail. — The cardinal rule of testamentary construction, as already intimated, is that the plain intent of the testator as evinced by the lianguage of his will must prevail, if that intent may be carried into effect without violating some deeper principle of public policy. And whatever respect the construction putt upon corresponding words in other wills may deserve from 1 Mr. Justice Story in Sisson v. Sea- excludes parol evidence in aid of inter- bury, I Sumn. 235, 239 (1832). pretation is not, as high English au- * Clarke v. Boorman, 18 Wall. 493. thorjties maintain, a necessary result of * See c. 3, post. the requirement of a written will, but * Mr. Hawkins in 2 Jurid. Soc. Pa- that Roman jurisprudence proves the pers, 298, contends that the rule which contrary. 499 § 466 LAW OF WILLS. [PART VL the court by way of precedent, this plain and lawful intent of the particular will should not be defeated. Courts have spoken of such intention as the "law," the "pole star" or the " sovereign guide " when referring to this governing principle of testamentary causes ; ^ and the doctrine, in one formula or another, is constantly affirmed in the reports. But it is the intention of the testator as expressed in his own will which governs ; and this intention must be discerned through the words of the will itself, as applied to the subject- matter and the surrounding circumstances.^ In other words, the plain and unambiguous words of the will must prevail and cannot be controlled or qualified by any conjectural or doubtful constructions growing out of the situation, circum- stances or condition of the testator, his property or the natural objects of his bounty .^ And since the interpretation and expositions of certain phrases found in similar wills, are entitled to weight,* it may sometimes happen that the inten- tion as expounded by the courts differs from the testator's own private intention and understanding. Yet every will should be interpreted, as far as possible, from the standpoint apparently occupied by the testator ; and attendant circumstances, such as the condition of his family and the amount and character of his property, may and ought to be taken into consideration, as part of the res gestce where the language is not plain nor the meaning obvious.^ And the testator's intention ought at least to control any arbitrary rule, however ancient its origin, which is unreasonable or not well established or -doubtful in its immediate application.^ But if there are two intentions on the face of the will, one of which is general and consistent with the rules of law, and another 1 Lord Hale in King v. Melling, i * Supra, § 463. Vent. 231; Wilmot, C. J., in Doe v. « Smith v. Bell, 6 Pet. 68; Blake v. Laming, 2 Burr. U12, and Roe v. Hawkins, 8 Otto, 315; Brown z/. Thorn- Grew, 2 Wils. 322; Summit v. Yount, dike, 15 Pick. 388; Postlethwaite's Ap- 109 Ind. 506; 31 Fed. 241. peal, 68 Penn. St. 477; Sisson v. Sea- 2 I Redf. Wills, 433; 2 Jarm. Wills, bury, i Sumn. 235; Perry v. Hunter, 2 838; Parsons i^. Winslow, 6 Mass. 175; R. L 80; Brown v. Bartlett, 58 N. H. Christie v. Phyfe, 19 N. Y. 344; Wil- 511, liamson v. Williamson, 4 Jones Eq. 281. " Shriver v. Lynn, 2 How. 43; Lord 8 lb. And see 2 Wms. Exrs. 1078; Mansfield in Perrin v. Blake, 4 Burr. Greenough v. Cass, 64 N. H. 326. 2579. 500 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 468 special and inconsistent with the rules of law, the latter yields to the former, and if necessary to give effect to the will may be rejected altogether.^ § 467. The Same Subject. — " The struggle in all such cases," observes Judge Story, "is to accomplish the real objects of the testator, so far as they can be accomplished consistently with the principles of law; but in no case to exceed his intention fairly deducible from the very words of the will." 2 In fine, where the meaning of the language of the will is plain, the court of construction does not go outside to discover what the testator intended ; but where the provi- sions are doubtful or may admit of more than one interpreta- tion, the court will put itself in the situation of the testator, in reference to the property and the relative claims of the testator's family, the relations subsisting between him and them, and the circumstances which surrounded him, in order to be enlightened. And herein lies the distinction between the admission and the non-admission of extrinsic evidence to aid in interpreting a given will.^ § 468. The Whole Will must be taken together. — A testa- tor's intention is, however, to be collected from the whole will taken together, and not from detached portions alone.* For, as it is figuratively said, the meaning must be gathered ex visceribus testamenti, or to use another familiar expression, "from the four corners of the instrument." All the papers which constitute the testamentary act must be taken as one whole, embracing will and codicils, and all papers so referred to as to be incorporated with the same in the probate.^ And all the parts and provisions of a will are to be construed in 1 Mr. Justice Story in Nightingale v. Hoover, 26 Ind. 511; Parker v. Was- Sheldon, 5 Mason, 336. ley, 9 Gratt. 477; 2 Jarm. Wills, 841; 2 Nightingale v. Sheldon, 5 Mason, 9 Mod. 154; 2 W. Bl. 976; 103 111. ii; 336. And see Blagge z/. Miles, I Story, Hoxie v. Hoxie, 7 Paige, 187; Night- 426; Fenwick v. Chapman, 9 Pet. 461; ingale w. Sheldon, 5 Mason, 336; Jack- Smith V. Bell, 6 Pet. 68. son v. Kip, 2 Paine, 366. » See past, c. 3. ° Westcott v. Cady, 5 Johns Ch. 343; * Lane v. Vick, 3 How. 464; Cook Leavens v. Butler, 8 Port. 380. V. Weaver, 12 Ga. 47; Jackson v. ■ SOI § 469 LAW OF WILLS. [pART VI. relation to each other, and so as, if possible, to form one con- sistent whole and operate together ;i and contradictory clauses should, if possible, be reconciled accordingly. But where the language of one part of a will is not easily reconciled with that used in another, principal and subordi- nate provisions should be construed in their due relation to one another. Thus, the intent which is disclosed in the express clause of a bequest ought to prevail over the lan- guage used in making other provisions subsidiary to this bequest ; unless plainly modified or controlled thereby .^ And a clearly expressed intention in one portion of the will is not to yield to a doubtful construction, in any other portion of the instrument.^ Hence, too, in interpreting a will the testator's general and controlHng purpose should be regarded, rather than any exalting and exciting ideas which may have dictated the terms of his will* It is not by an exaggerated expression here and there that the will is expounded, but by what on the whole was one's scheme of rational disposition. For the intent as gathered from the whole will overrides all those technical rules which relate to the construction of words. § 469. Iianguage taken according to the Testator's Situation. — Here let lis observe, of the testator's language, that the rule which seeks to discover one's real intention requires that language be taken, so far as may be, according to the testa- tor's own situation and surroundings ; according to the time and place in which he lived, and the manners and institutions which moulded his character or to which on the whole he had the most probable reference. For the language of wills, as courts have observed, is not of universal interpretation, having the same precise import in all countries and under all circum- stances ; but they are commonly supposed to speak the sense 1 2 Jarm. Wills, 841; 9 Mod. 154; * Corrigan v. Kieman, i Bradf. 6 T. R. 314; 16 Yes. 314; 82 Penn, 208. St. 213. * McDonough v. Murdock. 15 How * See Curtis, J., in Ward v. Amory, 410. I Curt. 419; § ,478, /drf. 502 CHAP. I.] GENERAL RULES OF COKSTRUCTION. § 472) of the testator according to the received laws or Visages of the country where he is domiciled, by a kind of tacit reference ; ■ supposing, of course, that there is nothing in the language he uses which repels or controls such a conclusion.^ In general the intent of a testator must be gathered net merely from the language used in the will, but from that lan- guage in Connection with the law of the land.'^ § 470. Technical Words ; how far controlled by Testator's Intent. — Consistently with this general regard to language, technical words employed in a will are presumed to have been used in their settled legal meaning unless the contrary is manifest.^ And if a testator has used technical language which brings his case within some precise rule of law, that rule must take effect. But technical words are liable to other explanatory and qualifying expressions in the context which disclose the testator's actual intention ;* and where a different meaning is fairly deducible from the whole will, the technical sense must bend to the apparent intention.^ In short, the tes- tator's intention as gathered from the will shall prevail against the technical meaning of words or phrases, so far as may con- sist, at least, with the rules of sound policy, and however im- perfectly such intention was in a technical sense expressed. To illustrate these distinctions. When a trust is created, the legal effect of which is declared by the law, the court is bound to presume that the intent of the testator was in con- formity to that law.® And specific words, especially in real estate titles, acquire readily the technical effect which usage and the decisions sanction.^ Yet the word "effects" has 1 Harrison v. Nixon, 9 Pet. 483. * Picqael v. Swali, 4 MasSta, 443; Thns the word " heir-at-law " might not Robertson v. Johnston, 24 Ga. ro2; present precisely the same idea to an Daniel v. Whartenby, 17 Wall. 639. American as to an Englishman. * Nightingale v. Sheldon, 5 Mason, 2 Pennoyer v. Shelden, 4 Blatch.jl^; Zi6,per Story, J.; 2 Wms. Exrs. 1079; Phill. (N. C) Eq. 8; Clark v. Mosely, Suydam v. Thayer, 94 Mo. 49. .1 Rich. Eq. 396. "Unmarried" may thus be ConSttted 8 Doug. 340; 4 Ves. 329 ; 6 Ch. D. to mean " hot Under coverture " at tJie 496; Needham v. Ide, 5 Pick. 510; time referred to. W. N. (1890) 125. De Kay v. Irviftg, $ Denio, 646; Felt- « Pennoyer v. Shelden, 4 Blatch, 319. man v. Butts, 8 Bush, 115; Jackson w. '8 Mass. 3; j Pick. 510; 47 Batb. Kip, 2 Paige, 366; 2 Jarm. Wills, 842. 263. § 472 LAW OF WILLS. [PART VI. been held to embrace both real and personal property under a will and to carry a fee simple in lands, without other words of inheritance, where the will shows on the whole that such was the testator's meaning.^ From a similar consideration, the words " residuary legatee " have been held to carry real estate ;^ the word "heir" has been construed to mean child,^ "legatee" has from the context been read as "devisee";* and intent has controlled as to making " bequest " and " devise " synonymous.^ In determining whether a word is used in a will in a technical or more general sense, it should be considered what will best carry into effect the testator's intention ; ^ but as a rule language should be construed accord- ing to its primary and ordinary meaning, unless the testator has manifested his intention in the will to give it a different significance.^ § 471. Technical Words not Necessary; Words occurring more than once. — Technical words are not requisite to give effect to any species of disposition in a will ; ^ but the inten- tion of the testator as discerned in the will is to govern in its construction, if consistent with the rules of law, though no technical words be used at all.® For convenience in laying hold of the testator's true mean- ing, it has been ruled that words occurring more than once in a will shall be presumed to be used always in the same sense, unless the context shows a contrary intention.^" But the presumption thus afforded appears a slight one as against the apparent intention, which after all is the criterion. § 472. Words to be taken in Usual Sense, etc. — Words in general, whether technical or popular, are to be taken in their plain and usual sense, unless a clear intention to use 1 Hogan V. Jackson, Cowp. 299; ^ 3 x. R. 86; 11 East, 246; 2 Jarm. Ferguson v. Zepp, 4 Wash. 645. Wills, 840. 2 Burwell w. Mandeville, 2 How. 560. « Richardson v. Noyes, 2 Mass. 56; ' Bland v. Bland, 103 111. 11. Smith v. Bell, 6 Pet. 68; and numerous > * Weeks v. Cornwell, ic6 N. Y. 626. other cases cited, U. S. Dig. 1st series, ' Thompson v. Gaut, 14 Lea, 310. Wills, 1524. « IS N. J. L. 276. 10 See i Jarm. Wills, 842; 2 Ch. Cas ' Hone V. Van Schaick, 3 N. Y. 538; 169; 3 Drew, 472. I Johns. Cb. 220; 10 S. & R. 150. SO4 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 474 them in another sense can be collected and that sense ascer- tained besides.^ § 473. Courts give Effect if Possible to All Parts of a Will. — A court is bound to give effect to every part of a will, without change or rejection, provided an effect can be given to it, not inconsistent with the general effect of the whole will taken together.^ And where effect cannot, consistently with the rules of law, be given to an entire will, or to an entire provision therein, any part of it which conforms to such rules will be sustained, if it can be separated from the rest of the will without violating the testator's general intention. Thus, if the testator expresses a general primary intention which conforms to the law, ulterior limitations by which he seeks to establish a perpetuity may be dropped, as not affect- ing the validity of the primary disposition of his estate.^ Invalid ulterior limitations will not invalidate the primary dispositions of a will* And where a testator's intention can- not wholly operate, it must be allowed to operate as far as possible.^ § 474. Later Clause, hovr construed with au Earlier One. — A later clause in a will must be deemed to afifirm, not to contradict an earlier clause, if such construction can fairly be given. The effort here, and a natural one, is to reconcile the instrument in all its parts and make the disposition a con- sistent whole; for in construing doubtful language that interpretation should be preferred which gives consistency to the whole will, rather than one which works inconsistency. Ambiguous expressions, therefore, though capable of limiting a plain gift already made, will not be readily allowed this effect.* And on the other hand, an express limitation in a » 18 Ves. 466; 4 C. B. N. S. 790; 2 111. 276; Dalton v. Scales, 2 Ired. Eq. Jarm. Wills, 841 ; 2 Demarest, 534; 521 ; 108 Penn. St. 314. Barney v. Arnolds, 15 R. I. 78. » Oxley v. Lane, 35 N. Y. 340. ' Dawes v. Swan, 4 Mass. 208; 6 * Tiers v. Tiers, 98 N. Y. 568. Mass. 169; Dill z/. Dill, I Desaus. 237; « Finch, 139; 2 Jarm. Wills, 843; Mutter's Estate, 38 Penn. St. 314; 2 Lepage v. McNamara, 5 Iowa, 124. 6 Temple v. Sammis, 97 N. Y. 526. § 477 ^■'^'*^ OF WILLS. [part VI. bequest or devise should not be controlled by implications drawn from other provisions in the will, if the latter by any fair intendment can be reconciled with the former.^ In short, a will is not to be read so as to contradict itself, if its appar- ent contradictions can be reconciled by bringing the various clauses together, and deducing a consistent interpretation from the whole context.^ § 47$. General Description, whether limited by Partioulara. — A similar rule is that, where the whole will indicates noth- ing to the contrary, a gift by words of general description is not to be limited by a subsequent attempt at a particular description.^ But this presumption is overcome by an ex- pression of intent to the contrary, as gathered from jthe whole instrument.* § 476. Regard paid to the Predominant Idea of the Will. -^ In construing a will» the predominant idea of the testator's mind, if apparent, is heeded, as against all doubtful and con- flicting provisions which might of themselves defeat it. The general intent and particular intent being inconsistent, the latter must be sacrificed to the former. If, for instance, the primary object of a son's will was to provide for his mother through the interposition of executors and trustees, the death of these latter will not cause that provision, to fail.^ All such subordinate provisions bend in construction to the testator's main purpose and should, if possible, help carry it out, not obstruct it ; and undue stress should not be laid upon partic- ular expressions or detached clauses.^ § 477. Courts will change or mould Language so as to give Intention Effect. — - Indeed, courts have gone so far in aiding 1 Ward V. Amory, i Curt. 419. * 3 Dem. 307. * White V. Allen, 81 Ind. 224; Lucas ' Stimson v. Vroman, 99 N. Y. 74; V. Duffield, 6 Gratt. 456; 10 La. Ann. Hitchcock v. Hitchcock, 35 Penn. St. 164. 393; Workman z/. Cannon, 5 Harr. 91 ; 'Martin v. Smith, 124 Mass. ill; Thrasher ». Ingram, 32 Ala. 645 ; Rose Freeman v. Coit, 96 N. Y. 63; next c. v. McHose, 26 Mo. S90- C/. Picker- * Urich's Appeal, 86 Penn. St. 386; ing v. Langdon, 22 Me. 413. Allen V, White, 97 Mass. 504. ' 506 CHAP. 1.] GENERAL RULES OF CONSTRUCTION. § 4// the intention of a testator as even to change or mould the language of a will in construction, so as to carry out what it appears from reading the whole will that the testator actually intended.^ They have discarded words as surplusage which were senseless as they stood repressed in the instrument.^ They have rejected or modified expressions in the will which were inconsistent with the main intention, or which indicated an intention which the law would not permit to take effect.* They have transposed words so as to bring out the testator's obvious meaning.* They have supplied words with the same object in view.^ They have dealt lightly with errors of syntax and punctuation.^ They have constantly read "and" as though it were " or," and vice versa,'' and in various other instances given words and expressions a meaning quite different from their literal acceptation. They have even gone so far as to change words which evidently were miswritten, so as to give a meaning precisely opposite to what the will expressed on its face; as in reading "dying without issue" as though it were "dying with issue."* In all such instances, however, the avowed object of the interpreting court has been to dispel the effect of some care- less, inaccurate, or ignorant use of language on the part of 1 I Jarm. Wills, 499, 503; 2 lb. 842; Wills, 486; 7 T. R. 437; 6 East, 486; Cox V. Britt, 22 Ark. 567; Metcalf v. 7 Gill and J. 227. In an early case the Framingham Parish, 128 Mass. 370. words "■without issue" were supplied * 2 Ves. 277; I Jarm. Wills, 479; where one devised to A and his heiis, 12 East, 515; iB. &Ald. 137; Wright and if he died, then over. I And. 33. V. Denn, 10 Wheat. 204. « 87 Penn. St. 51; 19 S. C 297. ' See Mellor v. Daintree, 33 Ch. D. ' Doe v. Watson, 8 How. 263; I 198, 206. Jarm. Wills, 505, 517, and cases cited. * 2 Ch. Ca. 10; Hob. 75; 2 Ves. 32; ' 8 Mod. 59; 2D. M. & G. 300; 2 I B. & Aid. 137; Ferry's Appeal, 102 Jarm. Wills, 843. In various instances Penn. St. 207; Hornby, Ex Jiarle, 2 where the testator uses the phrase " with- Bradf. 420; Linstead v. Green, 2 Md. out issue," the court has read " without 82; Baker w. Pender, 5 Jones L. 351; leaving issue." I Jarm. Wills, 487; Christie w. Phyfe, 19 N. Y. 344; CrNeall Amb. 112; 13 Ves. 476; i.Hair.&G. V. Boozer, 4 Rich. Eq. 22; I Jarm. 1 11. For other changes, see i Jarm. Wills, 500. Wills, 503-524, and Bigelow'S notes. 6 Cleland v. Waters, 16 Ga. 496; « Between " may thus be read as though Dew V. Barnes, 1 Jones Eq. 149; Au- written "among." Hick's Estate, 134 lick V. Wallace, 12 Bush. 531; Heller- Penn. St. 507. "Then" is construed man's Appeal, 115 Penn. St. I20; Mel- favorably to intent in Perkins's Appeal, lor V. Daintree, 33 Ch. D. 198J i Jarm. 108 Penn. St. 31^ 507 § 478 LAW OF WILLS. [PART VI. the testator or his scrivener, and make the will interpret what he obviously meant, just as though his ideas had been clearly and correctly expressed in the instrument. But changes like these will not be made upon any mere conjec- ture, however reasonable, of what the testator meant, in oppo- sition to the plain sense of the instrument as it stands.^ All other things being equal, the natural and literal import of words and phrases is presumed to have been intended ;2 and each word is to have its effect, if the general intent be not thwarted thereby.^ No words of a will are to be rejected if any intelligent meaning can be given them.* Nor will language be distorted or meddled with, whose meaning is clear, for the sake of correcting that which ex- trinsic proof might show to have been a mistake of fact on the testator's part ; nor words supplied which it is not evi- dent that the testator intended to use.^ To change or supply words for the sake of creating an intent or of making the will different from what the testator meant it to be is cer- tainly inadmissible ; ® but the moulding or altering must be in furtherance of the purpose expressed in the context^ § 478. Treatment of Repugnant Farts. — But while varying and conflicting clauses should, if possible, be reconciled so as to make each clause operative, it has often been ruled that in case of invincible repugnancy, the latter clause ought to prevail over the former.^ This doctrine appears to be deduced 1 2 Jarm. Wills, 843; 18 Ves. 368; will not defeat the bequest, but the 2 Mer. 25; I Brev. 414; Simpson v. court will read the name as it ought to Smith, I Sneed, 394; Caldwell v. Wil- stand. Hill v. Downes, 125 Mass. 509; lis, 57 Miss. S5S- Caldwell v. Willis, 57 Miss. 555; East- " 2 Dem. (N.Y.) 534; 5 J. J. Marsh, wood v. Lockwood, L. R. 3 Eq. 487. 600; 2 La. Ann. 168. ' i Jarm. Wills, 472; L. R. 6 C. P. 8 8 Port. (Ala.) 380. 500; 6 Ves. lOO; Crone w. Odell, 3 * Seibert v. Wise, 70 Penn. St. 147. Dow, 61 ; Homer v. Shelton, 2 Met. 6 6 Munf. 114; Liston v. Jenkins, 2 202; Thrasher v. Ingram, 32 Ala. 645; W. Va. 62. 31 Hun, 119; Pratt v. Rice, 7 Cush. 8 37 N. J. Eq. S- As to legacies, see 209; Smith v. Bell, 6 Pet. 84; 3 Whart. Schoul. Exrs. & Adms. §§ 458-475. It 162; Sherrat v. Bentley, 2 M. & K. is a familiar rule that where the name 149; Orr v. Moses, 52 Me. 287; Evans of a legatee is erroneously stated in a v. Hudson, 6 Ind. 293; 74 Me. 413; will, and there is no reasonable doubt Heidelbaugh v. Wagner, 72 Iowa, 601 ; as to the person intended, this mistake Hendershot v. Shields, 42 N. J. Eq. 317. 508 CHAP. I.J GENERAL RULES OF CONSTRUCTION. § 478 from the principle, fair enough in the comparison of expres- sions of different date, that the testator's latest expression should be preferred to all previous ones ; a principle, however, which must be somewhat strained when applied to the various consecutive parts of what has been obviously shaped out to stand as the one full and contemporaneous expression. Such a rule, therefore, as here applied, is properly a last resort, and when all efforts at reconcilement fail ; for the intention of the testator is to be gathered from a consideration of the whole contemporaneous will and a comparison of the different terms, and effect given to this intention throughout if it can be fairly and legally done ; and one's general or predominant intention, if discoverable, must prevail over a particular or subsidiary one.^ The repugnancy which will justify the rejection of a word or clause from a will must arise upon the face of the will.^ It is only when the context itself is a source of obscurity that courts, rather than be driven to suffer the will to fail, accord this favor to an expression locally posterior in the instrument, each expression being sufficiently intelligible when taken by itself, and sacrifice the prior clause accordingly.^ The effect, though usually to limit or qualify a former gift, may be to destroy it alto- gether. If any word or expression has no intelligible meaning, or is absurd, or repugnant to the clear intent shown in the rest of the will, it may be rejected.* Nor is a clear gift or devise in one part of the will to be cut down or out by indefinite, doubtful or ambiguous expressions in another part or upon any conjecture ; but the intention to cut down or out, or the inconsistent provision, must be indicated with at least rea- 1 3 Ves. Jr. 103; Constantine v. Con- ^ gee 20 Ohio St. 490. stantine, 6 Ves. 100; Homer z/. Shelton, ^ i Jarm. Wills, 472-485. This rule, 2 Met. 202; Covenhoven v. Shuler, 2 though artificial, is of ancient standing. Paige, 122; Hunt v. Johnson, 10 B. " Cum duo inter se pugnantia reperiun- Mon. 342; II Gill & J. 185; Robert v. tur in testamento, ultimum ratum est." West, 15 Ga. 122; Walker v. Walker, Co. Lit. 112 *. 17 Ala. 396; Pickering v. Langdon, 22 * 12 Mass. 537; i Jarm. Wills, 480; Me. 430; Van Vechten v. Keator, 63 Needhami/. Ide, 5 Pick. 510; 2 Desaus. N. Y. 52; 65 Penn. St. 388; Baxter v. 32; Holmes z'.Cradock, 3 Ves. Jr. 521; Bowyer, 19 Ohio St. 490; § 476. Davis v. Boggs, 20 Ohio St. 550. SO9 § 479 i-Aw OP WILLS. [part VI. sonable certainty.^ In various instances inconsistent gifts or devises have been reconciled in construction, by reading the later one as referring to a possible lapse of the former one or as dependent upon some contingency which is deducible from the instrument taken as a whole.^ And after some dispute the English cases sustain the tbeory,^ that where two devises in fee are given of the same property, a sacrifice of the former may be avoided by considering that the devisees take concurrently ; ^ and that of a chattel not utterly indivisible, the legatees inconsistently mentioned shall each have a moiety.* Where a will can be construed as consistent with itself, the disastrous effect 6f repugnancy is avoided.^ A clear gift or devise is not to be controlled by the reasons assigned for making it; nor by any inaccurate words of ref- erence or recital which may subsequently occur in the will, nor by mere inference and argument in general.® § 479- Tavor to Heir or Next of Kin, considered. — Against the fundamental maxim that the intention of the testator shall prevail comes in conflict another primary one, namely, that the heir-at-law shall not be disinherited by conjecture, but only by express words or necessary implication.'^ This latter rule of presumption has been long asserted by the courts in England and America ; * but the policy of modern times extends such a presumption rather in favor of heirs * I Jarm. Wills, 479; Price a Cole, cases out of a hundred,, has often been 83 Va. 343; Meyer v. Cahen, iii N. Y. a subject of complaint." Grier, J., in 270; Hochstedler v. Hochstedler, 108 Smith v. Shriver, 3 Wall. Jr. 219. The Ind. 506; irglnd. 525;. Ilsley w. Ilsley, English courts have asserted this rule 80 Me. 23; 79 Me. 177; Wilmoth v. very strongly in times past. "There is Wilmoth, 34 W. Va. 426. hardly any case,." says Lord Hardwicke, 2 5 B. & Aid. 536; Ley v. Ley, 2 M. " where implication is; of necessity, but & Gr. 780. And see 5 Ex. 107. it is called necessary because the court » Sherrat v. Bentley, 2 M. & K. 165. finds it so hard to answer the intention * lb. of the devisor." Coryton v. Helyar, 2 5 Stebbins v. Stebbins, 86 Mich. 474. Cox, 340, 348. And see Jarman's rule 6 I Jarm. Wills, 483-485; 2 lb. 841; Y.post. Cole V. Wade, 16 Ves. 27; Cowp. 833;, ' 2 Stra. 969;. 5 T. R. 558; 18 Ves. 8Ves. 42; Terry z-. Smith, 42 N. J. Eq. 40; r Jann. WUls, 532; 2 lb. 841; 504- Howard v. American &c. Society, 49 ' "That the application of the latter Me. 288; Bender Vl Dietrick, 7 W. & S. rule has had the effect of defeating the 284; Wright v. Hicks, r2 Ga. 155, intention of a testator in ninety-nine Sio GHAP. I.] GENERAL RULES OF CONSTRUCTION. § 48O and next of kin, generally, — that is to say, to any one or all, who would, independently of a will, have taken the property in question under the appropriate statutes of descent and distribution ; ^ though doubtless originally the technical heir- at-law, he who after his ancestor's death intestate had a right to the lands of which such ancestor was seised, found himself the law's especial favorite. To such a maxim is due a variety of precedents which we shall note hereafter ; and this artifi- cial presumption chief of all, that any devise of lands to a person without words of Hmitation, even though to the testa- tor's own spouse, confers an estate for life only.^ It may be safely laid down, that of two equally probable interpretations of a will, that shall be adopted which prefers the family and kindred of the testator to utter strangers^* And where a testator give the whole or part of his estate to his next of kin, and leaves the proportions doubtful, it is natural to suppose that he, meant the statutory form of distri- bution to prevail.* § 480. The Same Subject: Favor to Children and Lineal Descendants, etc. — Thus is it particularly as to one's own children or lineal descendants ; and the nearer by blood to the testator is the heir or the next of kin in natural relationship^ the less do courts incline to construe the will as though the maker were devoid of natural affection, not to add a sense of duty. Our modern legislation, as already shown, fortifies the general' presumption that the name of any child omitted from the will was accidentally left out, and not purposely ; and thus are the harsh consequences of disinheritance avoided if only a reasonable doubt remain of the testator's real intention. It is not to be readily assumed therefore that a will purposes disinheriting a son or a daughter.^ Posthumous offspring- it Jarm. Wills, 339, 623; 2 lb. 841; 'Downing v. Bain, 24 Ga. 372; 4 Beay. 318. Jannan speaks, of " the Wood v. Mitcham> 92 N. Y. 3555. heii or next of kin." See Rules V. & * Dunlap's Appeal, ij6 Penn. St,. 500. VI. in foot note, ;»(?rf, § 492. « Weatherhead v. Baskerrville,. n 2 King V. Ackerman, 2 Black, 408; How. 329; Blagge Vj. Miles, v Story, Wright v., Denn, 10 Wheat. 204. See 426; supra, § 20. this presumption discussed in § 483, post, 511 § 48 1 LAW OF WILLS. [PART VL receive indulgent consideration, wherever a will comes up for construction.^ Indeed, under the Louisiana code a testator cannot dispose of more than one-fifth of his property to the exclusion of a child ; but the child becomes the "forced heir," so to speak, of the residue.^ Infant children, most of all, deserve a court's solicitude ; for those of tender years at least can hardly be thought to have incurred the parent's just resentment, or to deservedly forfeit what naturally belongs to them ; and being themselves unable to protect their own inheritance, the tribunal of justice should secure those rights for them where the rules of interpretation permit it. Granting that the legal obligation of a father to support his young children is not continued upon his estate after his death, yet every true parent recognizes the moral obligation, and so natural is this feeling, that courts may well presume that the parent made his will under its influence.^ §481. The Same Subject. — But by children, lineal de- scendants or heirs and next of kin generally, in the present connection, we mean those who are legitimate. No such presumption arises in favor of a testator's illegitimate rela- tives ; but, in the absence of clear intent on his part to the contrary, those who are legitimate shall take the preference.* But among one's legitimate and legitimized offspring, Ameri- can policy favors the presumption that no one shall be favored above the rest, but all shall share equally in the parent's bounty, unless, of course, the will in question shows a different intention. As concerns a testator's gifts, however, to other parties, their children, being no issue of his own, are not to be brought within the scope of his bounty by any mere implication of the will.^ And as among a testator's collateral relatives or strangers, favoring presumptions carry little or no weight against the testator's meaning.^ 1 Moffit V. Varden, 5 Cr. C. C. 658. legitimate and illegitimate children may 2 Patterson v. Gaines, 6 How. 550. be placed on an equal footing. Stewart ^ See Vail v. Vail, 10 Barb. 69; v. Stewart, 31 N. J. Eq. 398. Weatherhead v. Baskerville, 1 1 How. ^ See Rawlins' Trusts, 45 Ch. D. 299. 329- ^ Jodrell Re, 44 Ch. D. 590; aff. App. * See Appel v. Byers, 98 Penn. St. Cas. (1891) 304. 479. But by plain reference in the will, 512 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 482 § 482. The Same Subject: Deeper Principle favors what is Just and Natural. — This Strict rule in favor of the "heir-at- law " is of feudal origin ; and modern instances are not want- ing, in which eminent judges, and those particularly of our own country, show a disposition to repudiate it in favor of the simple test of intention under the particular will.^ But the stability of land titles and the force of settled precedents in the jurisdiction where lands which are devised happen to lie must needs counteract and check such a disposition. It is un- desirable, certainly, at this day, for an American court to dis- tort and violate the provisions of a will, well ordered and well expressed, out of an undue sanctity for real estate and the ancient privilege of inheriting it ; yet, as we apprehend, this maxim which has so long offset a testator's real wishes, has a deeper and more lasting foundation in human experience. Our reference to children and the natural claims of kindred may confirm this impression. And the broader principle of law appears to be this : that whatever the policy of the age and jurisdiction for the time being may pronounce unwise or unjust, even though not really illegal, shall be presumed against, in the construction of a will, unless the plain inten- tion of the testator appears to the contrary ; a maxim which may serve for courts in the present and future as well as the past, and through all the shifting mutations of public authority or public opinion. It has been shown that testaments may stand in probate which are harsh, unkind, unnatural, partial, or foolish in their provisions, if not the product of a mind insane or under coercion, — in short, that one may do as he wills with his own, provided he does what is not unlawful ; ^ but such wills are prejudiced in their admission, notwith- standing ; and so, too, when interpreting a will, the presump- tion should be in favor of a disposition to do what was natural, fair, and reasonable, unless such a construction would defeat the testator's plain intention in the given case. For we cannot deny that the intention of a testator, though harsh 1 Taney, C. J., in Bosley v. Bosley, ^ Supra, §§ 22, 7>, 165. 14 How. 390, 397; King v. Ackerman, 2 Black, 408. SI3 § 483 LAW OF WILLS. [PART VL and unreasonable, must guide, when clearly expressed, if it violates no principle of law or morality.^ § 483. Devise without ■Words of Limitation ; Heir less fav- ored than formerly. — With regard to a devise without words of limitation the heir-at-law is less favored in construction than formerly. The old rule stood that a devise of lands to A simply, conferred an estate for life only, unless an inten- tion was disclosed in the will to the contrary ; and the rule was the same where the devise to A was of "lands, tene- ments, arid hereditaments." If, therefore, the words of the testator denoted only a description of the specific land or estate, —as if he devised a certain farm to A, or to A and his assigns, — only a life estate would pass.^ But this rule operated very unjustly ; and the courts showed much astuteness to avoid an interpretation which in many instances must have subverted the testator's purpose. Eng- lish precedents established that a devise of land to A " for- ever" might pass the fee;* or a devise to A, his executors and administrators ; * or a devise of land to be at the disposi- tion of A, or to be kept in his name and family.^ In this country, a devise after a life estate, especially if made to one heir, with an evident intention of excluding the other heirs, has in several instances been held to pass a fee.® And one devise made simply has been supported as a devise in fee by coupling it with another in the will which was used with suitable words of limitation.^ Indeed, in many States it has been held that whenever an intentiwi to dispose of the fee can by any fair inference be drawn from the will, the technical rule must be excluded ; and that very slight cir- 1 See Brearley v. Brearley, 9 N. J. And see Gates k. Brydon, 3 Burr, 1895; Eq. 91. Wyatt.w. Sadler, i Munf. 537; Bool v, 2 Co. Lit. 96; Hogan v. Jackson, Mix, 17 Wend. 127; Qayton v. Qay- Cowp. 306; Hopewell v. Ackland, i ton, 3 Binn. 483. Salk. 239; Wright z/. Denn, 10 Wheat. "Plimpton ». Plimpton, l2Cush.463; 238; Van Alstyne w. Spraker, 13 Wend. Butler v. Little, 3 Greenl. 241; i Grant 582; Luinmus v. Mitchell, 34 N. H. 45; Cas. 240. Cf. i Barb. 112. King ». Ackerman, 2 Black, 408. ' Cook z;. Holmes, 11 Mass. 532; ' Co. Lit. 96. , ' Neide v. Neide, 4 Rawle, 82; 7 Ind. * Rose V. Hill, 3 Burr, 1881. 282; Charter v. Otis, 41 Barb. 529. 6 Wood V. Wood, I B. & Aid. 518. CHAP. I.]- GENERAL RULES OF CONSTRUCTION. §'484 cumstances will be laid hold of as indicating such an inten- tion.i And the fact that real and personal estate are given together by the same clause and in the same language has been held of great moment if not conclusive as passing a fee.2 § 484. — r- The Same Subject ; " Estate," etc. ; Effect of a Charge, Gift over, or Trust. — Lord Mansfield and others checked fur- ther this sacrifice of the intended devisee to the heir, by ruling that whenever the words of devise denoted the quan- tum of interest or property that the testator had in the lands devised, then the whole extent of such interest would pass to the devisee. And hence the established exception that the word " estate " or " estates " sufficiently passed the fee simple of land, although accompanied by words of locality or occupation ; and this notwithstanding that " estate "is an equivocal word and might mean either the land itself or the testator's interest in it.^ A devise of " all my estate called C," etc., therefore, or other similar expression, even though applicable in a strict sense to corpus rather than interest, has thus been liberally applied in the devisee's favor,* in spite of an occasional check where the word " estate " is not an operative word occurring in the gift itself, but introduced somewhat later in the will by way of reference.^ The word " effects " as used in a devise of " all my effects real and per- sonal," or the word or expression " property," *' lands," " my right," "all I have," and the like, have also been interpreted by way of exceptit)n as denoting the quantum of interest bestowed in the devise.® So, too, has an indefinite devise been enlarged by the im- 1 Hawkins Wills, 131, Swbriis' ». Paine, 3 CrancH, 97; Hawkins Wills, American note; Lummus v. Mitchell, 131-133. 34 N. H. 46; Cleveland v. Spilman, 25 * lb. Ind. 99. ^ Cf- Burton v. White, i Exch. 5355; "lb.; Packard v. Packard, r6 Pick. Lelaiid w. Adams, ^ Gray, 171. 193. Under the Iowa code an heir is « 22 1.. J. Ch. 236; 4 Wash. C. C. disinherited whenever an ancestor's de- 645; Nicholls v. Butcher, 18 Ves. 193; vise chooses to omit providing for him. 3 Sim. ggS; 6 Ohio St. 488'; 9 Penn. 74 Iowa, 279. St. 142; Chamberlain v. Owirigs, 30 » White V. Coram, 3 K. & J. 652; Md. 453. Child V. Wright, 7 East, 259; Lambert S15 § 486 LAW OF WILLS. [pART VL position of a charge, however small, on the person of the devisee or on the quantum of his interest ; though not by the mere subjection of the devise to a charge.^ A gift over in the event of the devisee dying under age has also been held to make the devise an effectual fee simple by intent ; ^ or a devise with power to dispose of the fee.^ And once more has the heir been excluded in construction, whenever the estate in fee is devised to trustees in trust for A, indefinitely, and the purposes of the trust require the whole legal fee to be in the trustees ; for here the beneficial interest in fee goes completely to A, and there is therefore no resulting trust for the heir.* § 485. Tbe Same Subject: Modem Statute Rule of Construc- tion. — This refined construction in favor of the heir, together with the refinements of exception built upon it, now gives way to the modern rule of interpretation as defined in the English Act of Victoria (1837) and corresponding enact- ments throughout the United States, many of them dating much earlier.^ This modern rule treats a devise of lands, though without words of limitation, as passing the fee simple to the devisee, unless an intention appear to the contrary.^ The natural scope of the will, as gathered from all its parts, thus settles in fine the question whether or not a devise in fee or such other complete interest as the testator had power to dispose of shall pass, or instead a mere usufruct and tem- porary enjoyment, leaving to the heir the ultimate benefits. § 486. 'When a 'Will takes Effect ; After-acquired Property. — A will does not take effect, nor are any rights acquired 1 Stevens v. Snelling, 5 East, 87; ^Va. New Jersey, Virginia, and North Burton v. Powers, 3 K. & J. 170. Carolina, statutes of this description ap- i! Burke v. Annis, 11 Hare, 232; 3 pear to have preceded the formation of Burr. 1618. the American Union in 1787-89; and a ' Shaw V. Hussey, 41 Me. 498; I later enactment in South Carolina was Harr. 27; Helmer v. Shoemaker, 22 held (4 McCord, 476) to merely affirm Wend. 139. the common law in that State. Haw- * 8 T. R. 597; Knight v. Selby, 3 kins Wills, 139, note by Swords. M. & G. 92; Moore v. Qeghorn, 12 ^ stat. i Vict. c. 26, § 28; App. Jur- 59'; 3' L. J. C. P. 25; Hawkins post. Wills, 134-138. S16 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 486 under it, until the death of the testator ; although, doubtless, it may speak for some purposes from the date of execution, and for others from the death of the testator, according to the particular intent manifested in the instrument itself.^ The old rule made a devise of land speak imperatively at the date of execution, but a will of personalty presumedly at the time of the testator's death. Hence, after-acquired lands did not pass by a devise, even though the testatoj- meant that they should, but required re-execution or a new devise in effect, upon the theory that the devise was in the nature of a conveyance of one's particular real estate. Even a bequest of leaseholds spoke prima facie from the date of the will and did not include after-acquired leaseholds nor a renewed lease.^ But our latest legislative policy, English and American, permits after-acquired lands- to pass by will wherever the testator appears to have so intended.^ A will as to personalty is still presumed to speak or apply to one's personal estate as it shall exist at his death.* Apart from statutory changes, the rule against passing after-acquired lands (which of course favored the heir-at-law) has generally prevailed throughout the United States ; while, 1 I Jarm. Wills, 318-337; 2 ib. 840; date or event happening between the Wakefield v. Phelps, 37 N. H. 295; date of execution and that of the testa- Fox V. Phelps, 17 Wend. 393; Gold v. tor's death, and require a corresponding Judson, 21 Conn. 616; 5 Iowa, 196; interpretation. See 37 N. J. Eq. 482. Means v. Evans, 4 Desau. 242; 21 ^ Supra, § 29; Hawkins Wills, 14- Tex. 713. 18; James v. Dean, n Ves. 383; Holt, As to the effect of a subsequent stat- 248;' Girard v. City, 4 Rawle, 333; ute upon one's will, see supra, § 11. Haven v. Foster, 14 Pick. 537; 2 Story, The general rule appears to be that 327. the will shall speak rather from the date ' Supra, § 29; Girard v. Philadelphia, of the testator's death than from the 2 Wall. Jr. 301; Smith v. Edrington, date of execution, unless its language 8 Cr. 66; 18 S. C. 94; Lorillard Re, 16 may fairly be construed to the contrary. R. I. 254. Gold V. Judson, supra. But intention * Garrett v. Garrett, 2 Strobh. Eq. governs after all; and if the will uses 272; Canfield v. Bostwick, 21 Conn, the word "now," or a verb in the pres- 553; Nichols v. Allen, 87 Tenn. 131. ent tense, or other expression pointing Even where the testator's estate was at the present, it must be construed largely increased after making the will accordingly. I Jarm. Wills, 318, and by an inheritance of which he was not Bigelow's note. It is even possible that aware at his death, all the property will the provision in a will should, by its pass as the will provides. Dalrymple express terms, refer to some expected v. Gamble, 68 Md. 523. § 487 LAW OF Wills. [part vi. as in England, a bequest of "all my personal estate" or "the residue of my personal estate" meant the personal estate existing at the death of the testator.^ But in almost all of our States, as also under the 24th section of Stat, i Vict, c. 26, in England, statutes are now to be found abolishing or modifying the rule of the common law with respect to the time from which devises of freeholds speak.^ In applying such enactments to particular wills, however, one must care- fully consider the time and manner in which the local statute is declared to„apply> whether to all wills taking effect after the enactment or only to such as are made subsequently. And two distinct particulars are embraced under such legisla- tion : (i) that after-acquired real estate shall pass by a devise when such appears to have been the testator's meaning ; (2) or that power is simply given to dispose of after-acquired real estate.^ The preferable rule as to after-acquired property stands thus, with the aid of legislation : that descriptions whether of real or personal estate, the subject of gift, refer to and comprise prima facie the property answering to that description at the death of the testator ; * but that at all events the intention manifested by the will shall prevail.^ The presumption against one's intending a partial intestacy may come in aid. of such a rule of construction.^ • § 487, Codicil construed with the Will. — A codicil is a part of a will, but with the peculiar function annexed of exp;ressing the testat;or's afterthought or amended intention.'^ The codicil should be construed with the will itself ; and from its very nature it may, as a context, confirm, alter, or alto- * lb. can be inferred from the terms of the 2 Supra, % 29; Hawkins Wills, i8, will. Brimmer v. Sohier, I Cush. 133; and Swords' American note. Wynnes. Wynne, 2 Swan, 407; 33 Fed. «Ib. The English, statute goes far- 812; 69 Iowa, 617; Patty i/. Gpolsby, ther, and declares that the intent to 51 Ark. 61; Welbom v. Townsend, speak from .the testator's death shall be 31 S. C. 408; Haley v. Gatewood, 74 presumed, unless a contrary intention Tex. 281. shall appear by the will, i Vict. c. 26, ^ Dunlap v. Dunlap, 74 Me. 402. As § 24; Appx./orf. to effect of codicil in carrying after- * An express deplaration of an inten- acquired land, see post, § 487. tion to dispose -of after-acquired prop- ^ | ^^go, post. erty is not necessary; it is enough if it ' Supra, §§7, 449; post, § 490. 518 CHAP. I.] GENERAL RULES OF CONSTRUCTION. § 487 gethet revoke an intention expressed in the body of the instrument to which it is annexed.^ A will and codicil are to be construed as one instrument, and are to be reconciled if possible i^ but if plainly inconsistent, and the more so if the later instrument expressly revokes whatever is inconsistent with it, the codicil must prevail ; ^ for a later repugnant dis- position as against an earlier stands on a footing of presump- tion far stronger than the later clause in one and the same contemporaneous instrument. Yet even here a codicil should be so construed as only to interfere with the dispositions made in the will to the extent needful for giving full effect to the codicil* And it is held that the determination expressed by a codicil to alter the will in a specified particular, negatives by implication any inten- tion to alter it in other respects.^ While the old rule was in force which denied that a will could convey lands acquired after its execution, the codicil might prove very serviceable in construction with it, because of a codicil's republishing force.^ Both will and codicil being taken as one entire instrument, a codicil which was so exe- cuted as of itself to be capable to pass lands, amounted prima facie, to a republication of the will and brought it down to its own date ; consequently the will spoke from the date of the codicil and included all lands acquired in the meantime.^ The codicil had this effect on the construction of the will, even though purporting to relate only to personal property and confirming nothing in express terms.^ But where the codicil 1 Brimmer v. Sohier, I Cush. 1 18; codicil refers is not the trust created by Lee V. Pindle, 12 Gill & J. 288; Arm- the will, but a separate or independent strong V. Armstrong, 14 B. Mon..333; one, the language of the codicil alone Hitchcock V. U. S. Bank, 7 Ala. 386. must be resorted to in construction of 2 lb. ; Thompson v. Churchill, 60 Vt. such trust. Thompson v. Thompson, 371 ; Ward v. Ward, 105 N. Y. 68. 140 Mass. 28. 8 Pickering v, Langdon, 22 Me. 413; ^ Supra, §§ 7, 449. 3Md. Ch. 42; Lee w.Pindle, izGilia ''Jones v. Shewmaker, 35 Ga. 151; J. 288; 1^38 Penn. St. 104. Beall v Cunningham, 3 B. Mon. 390; * Ives V. Harris, 7 R. I. 413; 5 Sandf. Acherly v. Vernon, Com. 381; 2 M. & 467; 2 Jones Eq. 13; Jenkins 'i/. Max- S. 15. ' well, 7 Jones L. 612. ^ piggott v. Waller, 7 Ves. 98; 4 K. 6 Quincy v. Rogers, 9 Cush. 291. & J. 73- Cf. Doe v. Walker, 12 M. & W. If it is clear that a trust to which the S9»; Haven v. Foster, 14 Pick* 541. § 488 a LAW OF WILLS. [part IV, showed a plain mtention to deal only with the identical prop- erty embraced in the will, this presumption was overcome.^ § 488. Some Effect should be given to a Will. — Some effect should, at all events, if possible, be given to a will, however obscure and informal its language ; and it is only where a rea- sonable construction and the discovery of the intent of the testator are hopeless, that all effect should be denied to the instrument.^ And hence where a will admits of two con- structions, one of which renders it operative and the other inoperative, the former is to be preferred.^ § 488 a. Effect of Will, -whether controlled by Change of Con- dition of Estate. — If the language and terms of a will are not doubtful, the fact that the testator intended to accomplish some special purpose thereby cannot control its effect in con- struction. Thus, where a design is disclosed by reasons stated in the will, to give more to certain poor beneficiaries than to certain rich ones, under the chosen plan of division, and this design happens to be defeated, because of changes in the condition of the estate after the will was made, or from other causes, the plan which the testator plainly prescribed must nevertheless be followed out, even though it should fail to effectuate his purpose.* Nevertheless, where a change in the condition of the prop- erty occurs after the execution of the will, — as by converting the residue from real to personal estate, — a court of equity inclines, as between two constructions of the will, to favor that by which the testator's obvious wishes may be carried into effect.^ And where from the change of circumstances it becomes obviously impossible to execute the will as intended, some substantial approximation to the testator's scheme is sometimes attempted.* 1 Bowes V. Bowes, 2 B. & P. 500; subject of uncertainty in wills is consid- Monypenny v. Bristow, 2 Russ. & My. ered at more length in ch. 3, post. '32- * Terry v. Smith, 42 N. J. Eq. 504; * Den V. Crawford, 8 N. J. L. 90; supra, § 478. Wootton V. Redd, 12 Gratt. 196. » Bills v. Putnam, 64 N. H. 554. a I Jarm. ^ills, 356; 2 ib. 842; 3 6 ^ikle v. WooUey, 81 Ga. 106. Burr. 1626; L. R. 5 H. L. 548. The 520 CHAP. 1.] GENERAL RULES OF CONSTRUCTION. § 49O § 489. Presumption of Compliance with Law ; Legal and Illegal Provisions, etc. — Where, again, a will is capable of two con- structions, one consistent and one inconsistent with the law, it may be presumed that the testator intended compliance with the law ; and upon this principle provisions under a will have frequently been upheld which, if otherwise construed, must have failed.^ So, too, if one construction would give effect to the whole instrument while the other would destroy a part, it is the former construction which should prevail.^ To all lawful dispositions of a testator the courts will give effect in construction.^ The maxim that every one is presumed to know the law, applies to existing but not to future enactments, in constru- ing a testator's will.* We may add that where legal and illegal bequests or trusts are found together, the disposition is to uphold those which are legal, provided they may stand independently and apart ; though it would be otherwise if the legal and illegal bequests or trusts were so inseparably connected as to constitute an entire scheme, for here they must fall together for ille- gality.^ § 490. Presumption against Partial Intestacy, — No pre- sumption of an intention to die intestate as to any part of his property is allowable when the words of a testator's will may fairly carry the whole ; for no one is supposed to make his will without meaning to dispose of all his estate. It is true, notwithstanding, that such a partial testament may be in- tended and may take effect.® If a general intention appear in the will to make therein a complete general disposition of 1 Thompson v. Newlin, 8 Ired. Eq. * Kennedy v. Hoy, 105 N. Y. 134. 32. ^ Given v. Hilton, 5 Otto, 591 ; Leigh 2 Pruden v. Pruden, 14 Ohio St. v. Savidge, 14 N. J. Eq. 124; Gilpin v. 251. Williams, 17 Ohio St. 396; Boyd v. * Lowry v. Muldrow, 8 Rich. Eq. Latham, Bush. L. 365; Gourley v. 241 ; Thrasher v. Ingram, 32 Ala. Thompson, 2 Sneed, 387; Rauden- 645. bach's Appeal, 87 Penn. St. 51; 102 * Taylor v. Mitchell, 57 Penn. St. Penn St. 207; Damon v. Bibber, 135 209. Mass. 458; §§ 7, 449. 521 § 491 LAW OF WILL3. [part VI. all the testator's property, this cannot, it is true, control par- ticular directions plainly to the contrary nor enlarge disposi- tions beyond their legitimate meaning ; and yet this general intent is allowed weight in determinihg what was intended by particular devises or bequests that may admit of an enlarged or limited construction.^ § 491. By what Local Law Wills are interpreted. ^^ Real and personal property are to be distinguished in the interpretation of a wilL As to real property, the well settled rule of Eng- land and the United States is that, no matter where the will was made or in what language written, the law where the land lies must govern in the construction of the will as well as in its method of execution.^ Thus, if a posthumous child not provided for by the testator has rights of inheritance in the State or country where the decedent leaves real estate, those rights will fasten upon such real estate.^ And in the interpretation of language which has a peculiar meaning in the local jurisdiction where the land lies, that meaning must prevail in the devise.* The principle of local situation goes still deeper, making the validity of the devise itself as regards the local land depend upon its conformity to the requirements of local law.^ A will of personalty (or of movables, rather) is, on the other hand, governed in construction by the law of the testator's last domicile ; and here again the principle is A broad one, embracing questions of validity as well as interpretation. Whether one shall take under the will as legatee, or aside from it by right of distribution, whether the decedent was himself capable and left a properly executed will, these and all kindred questions depend, like the general settlement of iGivenw. Hilton, 5 Otto, 591; Bishop 9 Wheat. 565; Pre. Ch. 577; Bull's V. McQelland, 44 N; J. Eq. 450; Bos- Will, III N. Y. 624. ton Co. V. Coffin, 152 Mass. 95. ' Eyre v. Storer, 37 N. H. 114. 2 I Jarm. Wills, I, 2, and .Bigelow's * Story, Confl. Laws, § 479; i Jarm. American note; 2ib. 840; Story, Confl. Wills, 2, and Bigelow's note. Laws, § 474; 4 Burge Comm. Col. & ' See Schoul. Exrs; & Admrs. §§ 15- For. Law, pt. 2, c. 15; Kerr v. Moon, 20. S22 CHAP. I.] GENERAL RULES OF CONSTRUCTION. ' § 492 the estates of the dead, upon the law of the decedent's last domicile.^ But the law where the will was made is allowed some force. Where, then, one's will purports to dispose of property within and realty without the domicile, it may happen that the former disposition holds valid, but not the latter. But a clause which grants both real and personal property upon the same trust is generally severable, and may take effect as a disposition of personalty within the jurisdiction, even though the devise of realty elsewhere located should fail.2 § 492. Summary : Mr. Jafman's Rules of Construction. — Rules of presumption, such as we have set forth in this chap- ter, yield to the exigencies of a case in hand ; and as for the maxims yet to be applied in detail, no summary is worth at- tempting. But Mr. Jarman's general rules, framed upon an exhaustive review of the English cases, have gained such credit in the courts, that we shall set them forth in our notes for the convenience of the American reader by way of comparison ; though in a few instances their practical applica- tion may in this country appear doubtful, and they anticipate certain matters whose discussion we shall defer to our third chapter.^ 1 I Jann. Wills, 2, and Bigelow's give effect to any species of disposi- Am. note; Story, Confl. Laws, § 465; tion in a will. III. That the construc- Anstruther v. Chalmer, 2 Sim. I ; 25 tion of a will is the same at law and in Beav. 218; School. Exrs. & Admrs. equity, the jurisdiction of each being §§ 15-20. governed by the nature of the subject; 2 lb.; Knox v. Jones, 47 N. Y. 389. though the consequences may differ, as * Mr. Jarman's twenty-four rules are in the instance of a contingent remain- stated as follows in the 4th English edi- der, which is destructible in the one tion of this most valuable treatise. Vol. case, and not in the other. IV. That II. pp. 840-843 : a will speaks, for some purposes, from I. That a will of real estate, where- the period of execution, and for others soever made, and in whatever language from the death of the testator; but written, is construed according to the never operates until the latter period, law of England, in which the property V. That the heir is not to be disinherited is situate, but a will of personalty is without an express devise, or necessary govera^Ahy^e. lex domicilii. II. That implication; such implication import- technical words are not necessary to ing, not natural necessity, but so strong §492 LAW OF WILLS. [part VI. a probability, that an intention to the contrary cannot be supposed. VI. That merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an ac- tual gift to some other definite object. VII. That all the parts of a will are to be construed in relation to each other, and so as, if possible, to form one con- sistent whole; but, where several parts are absolutely irreconcilable, the latter must prevail. VIII. That extrinsic evi- dence is not admissible to alter, detract from, or add to, the terms of a will (though it may be used to rebut a re- sulting trust attaching to a legal title created by it, or to remove a latent am- biguity [arising from words equally de- scriptive of two or more subjects or objects of gift]). IX. Nor to vary the meaning of words; and, therefore, in order to attach a strained and extraor- dinary sense to a particular word, an instrument executed by the testator, in which the same word occurs in that sense, is not admissible. X. But the court will look at the circumstances under which the devisor makes his will, as the state of his property, of his family, and the like. XI. That, in general, implication is admissible only in the absence of, and not to control, an express disposition. XII. That an express and positive devise cannot be controlled by the reason assigned, or by subsequent ambiguous -words, or by inference and argument from other parts of the will; and, accordingly, such a devise is not affected by a sub- sequent inaccurate recital of, or refer- ence to, its contents; though recourse may be had to such reference to assist the construction, in case of ambiguity or doubt. XIII. That the inconvenience or absurdity of a devise is no ground for varying the construction, where the terms of it are unambiguous; nor is the fact that the testator did not foresee all the consequences of his disposition, a reason for varying it; but, where the intention is obscured by conflicting ex- pressions, it is to be sought rather in a rational and consistent, than an irra- tional and inconsistent purpose. XIV. That the rules of construction cannot be strained to bring a devise within the rules of law; but it seems that, where the will admits of two constructions, that is to be preferred which will ren- der it valid; and therefore the court, in one instance, adhered to the literal lan- guage of the testator, though it was highly probable that he had written a word by mistake for one which would have rendered the devise void. XV. That favor or disfavor to the object ought not to influence the construction. XVI. That words, in general, are to be taken in their ordinary and grammati- cal sense, unless a clear intention to use them in another can be collected, and that other can be ascertained; and they are, in all cases, to receive a construc- tion which will give to every expression some effect, rather than one that will render any of the expressions inopera- tive; and of two modes of construc- tion, that is to be preferred which will prevent a total intestacy. XVII. That, where a testator uses technical words, he is presumed to employ them in their legal sense, unless the context clearly indicates the contrary. XVIII. That words, occurring more than once in a will, shall be presumed to be used always in the same sense, unless a con- trary intention appear by the context, or unless the words be applied to a dif- ferent subject. And, on the same prin- ciple, where a testator uses an additional word or phrase, he must be presumed to have an additional meaning. XIX. That words and limitations may be transposed, supplied, or rejected, where warranted by the immediate context, or the general scheme of the will; but not merely on a conjectural hypothesis of the testator's intention, however reasonable, in opposition to the plain and obvious sense of the language of the instru- ment. XX. That words which it is obvious are mis-written (as dying with issue, for dying without issue) may be corrected. XXI. That the construo 524 CHAP. I.] GENERAL RULES OF CONSTRUCTION. §492 don is not to be varied by events subse- quent to the execution; but the courts, in determining the meaning of particu- lar expressions, will look to possible cir- cumstances, in which they might have been called upon to aiBx a signification to them. XXII. That several inde- pendent devises, not grammatically con- nected, or united by the expression of a common purpose, must be construed separately, and without, relation to each other ; although it may be conjectured, from similarity of relationship, or other such circumstances, that the testator 52 had the same intention in regard to both. There must be an apparent de- sign to connect them. XXIII. That where a testator's intention cannot op- erate to its full extent, it shall take effect as far as possible. XXIV. That a testator is rather to be presumed to calculate on the dispositions in his will taking effect, than the contrary; and accordingly, a provision for the death of devisees will not be considered as intended to provide exclusively for lapse, if it admits of any other con- struction. § 494 LAW 0^ WILLS. [part VI. CHAPTER II. DETAILS OF TESTAMENTARY CONSTRUCTION. § 493^ Details^ to be oonaidered ; as to the Property described in the Wia — In this chapter we proceed to apply the gen- eral principles of testamentary construction to wills in thfeir manifold details. And first of all let us consider the prop- erty described in a will and included under its provisions. Such descriptions may relate to real estate or to personal estate, or to one's property generally. § 494. Descriptions relating to Real Estate : Leaseholds. — A devise of one's " real estate " relates, strictly speaking, to freeholds so as to exclude the idea of chattels real and lease- holds. And the old rule of construction gave the same exclu- sive effect where the term "land" or "lands and tenements" or " lands, tenements and hereditaments " was employed in a will. Any such description was held prima facie to mean freeholds only, and leaseholds were excluded.^ This rule equally applied whether the devise was of all one's lands, etc., or of lands under a limited description ; as of " all my lands in the town of B." 2 But this presumption of interest was overcome, where at the time of the devise the testator had no freehold lands answering to the description, but leaseholds or chattels real only.^ And where leasehold property was blended in situa- tion and enjoyment with freeholds,, or an intention to carry leaseholds was otherwise inferable from the context, the con- struction yielded accordingly;* and leaseholds might thus pass even under a devise of "real estate." ^ By the Statute i Vict. c. 26 the presumption is reversed, 1 Cro. Car. 293; Swifts. Swift, i De » Cro. Car. 293; Thompson v. Law- G. F. & J. 160; Thompson v. Lawley, ley, supra. 2 B. & P. 303. < Hobsonz-. Blackburn, I M.&K. 571. 2 lb.; Hawkins Wills, 30-32. « Swift b. Swift, i De G. F. & J. l6a 526 CHAP. II.]; DETAILS OF TESTAMENTARY CONSTRUCTION. § 495 SO that in modern England, a devise of one's lands, or his lands in a specified place, shall include leaseholds prima facie as well as freeholds.^ Corresponding enactments may be found in some parts of the United States ; ^ but neither legis- lature nor court has given the subject much attention in this country. 8 § 495. The Same Subject : Trust Estates and Mortgages. — It is to be presumed that a general deyise of one's lands or real estate was intended to embrace land which the testator held as trustee or mortgagee ; * and in such case the persons who suffer injury thereby niust obtain satisfaction out of the decedent's estate.^ But if the will disclosed a purpose inconsistent with apply- ing to such devise property of which" the testator was not beneficial owner, this presumption does not hold good.^ As where the property is devised to trustees to sell, or with a charge of some sort imposed upon it ; or where the devise is encumbered with limitations.^ And though a general devise should pass whatever legal estate under a mortgage the tes- tator had to transmit, it would not include the beneficial enjoyment of the money secured by the mortgage, since that is personal estate.^ 1 Stat. I Vict. c. 26, § 26 (1837). 16 Sim. 297; 8 Ves. 436; i Jarm. 697, See Appx.; 28 Ch. D. 66; Knight Re, 698; Packman ^e, iCh.D. 214. Where 34 Ch. D. 518. such a devise would be in derelictioii of 2 Hawkins Wills, 32, Swords' note. the testator's duty, no such presumption ' The express reservations of a devise will avail. Wills v. Cooper, I Dutch. in such particulars must be respected. 161; 2 Edw. Ch. 547. Chase v. Stockett, 72 Md. 235. ^ Woodhouse v. Meredith, I Mer. * Braybroke v. Inskip, 8 Ves. 435; 450. A gift of all the testator's right, Jackson v. Delancy, 13 Johns. 554; title, and interest in land held by him as Wills V. Cooper, I Dutch. 161 ; Heath mortgagee is a gift of personalty only, V. Knapp, 4 Penn. St. 228; 4 Kent Com. and passes no title in the land. Martin S38> 539- '"• Smith, 124 Mass. iii. Here the 5 I Jarm. 698. mortgagor was executor of the will of ' Martin v. Laverton, L. R. 9 Eq. the mortgagee, and charged himself 570; Hawkins Wills, 35; I Jarm. Wills, with the amount of the mortgage debt 689 et seq.; Brown Re, 3 Ch. D. 156. as assets in his hands, thereby operating See Gibbes ■v. Holmes, 10 Rich. Eq. a payment of the debt and a discharge 484; 3 Desau. 346. of the mortgage. ' Hawkins Wills, 35-37; Morley ^^ "All my real estate" in a certain 10 Hare, 293 ; Rackham v. Siddall, town, under the modern rule of after- 527. I 498 LAW OF WILLS. [PART VI. § 496. The Same Subject : Reversionary Interests. — Under a general devise of one's land or real estate, all reversionary interests will pass unless a clear intention to exclude the same be shown. ^ § 497. The Same Subject : Lands contracted for. — Lands which the testator has contracted to purchase ^2&% prima facie under a general devise, though not actually conveyed to him.'^ As for lands which the testator has contracted to sell, the legal title thereto is presumed to vest in his devisee, as though by way of transferring what the testator held in trust ; but not in general so as to give such devisee the beneficial enjoy- ment of the purchase-money.^ § 498. The Same Subject: "Land"; "Tenement"; "Heredit- ament." — The word "land" is a term which comprehends any ground, soil, or earth whatever ; and having an indefinite extent, upward as well as downward, it naturally includes all houses or buildings standing or built on it, besides mines, wells, and whatever else the soil may hold between its surface and the earth's centre.* This word " land " receives gener- ally its broadest sense where a will is interpreted ; and yet not independently of the testator's apparent intent. Thus a devise of land covers usually the house standing upon it ; but not where the context shows that the house itself or that part of the land on which the house stands was devised differently.^ acquired property (§ 486), will pass a ' See Hawkins Wills, 38, 39; Drant piece of land there acquired afterwards v. Vause, I Y. & C. C. C. 580; I J. & by the testator in foreclosing a mortgage W. 479. A testator who has the legal which he acquired subsequently. Dick- title to lands which he has sold by a erson's Appeal, 55 Conn. 223. written contract, can transfer by his will 1 Tennent v. Tennent, I Jo. & Lat. both the title and the notes given for 389; Church V. Mundy, 15 Ves. 396; the purchase-money; and the devisee Hayden v. Stoughton, 5 Pick. 538; will stand towards the purchaser just as Brown ii. Boyd, 9 W. & S. 128. the testator did during his life. Atwood If one devises "lands not hereinbe- v. Weems, 99 U. S. 183. fore disposed of," or " lands not settled," * Co. Lit. 4a; 3 Kent Com. 37S; I etc., the consequence is similar. Haw- Jarm. Wills, 777. kins Wills, 34, citing Jones w. Skinner, ^ Heydon's Will, 2 And. 1 23; Cro. S L. J. Ch. N. S. 87; 3 P. Wms. 56. El. 476, 658. ^ Acherley v. Vernon, 10 Mod. 518; CoUison V. Girling, 4 My. & Cr. 75. 528 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. | 5OO And again,. one might devise J(ands,.with express reservation as to mines or a well contained, therein.. , . . "Land" is not so. broad a term as "tenementSi" and- "here- ditaments " ;^ for these include every. spe,cies of realty, corpo-, real or incorporeal, that maybe holden or inherited..^ . Hence, advowsons, tithes, etc., which pass under .these broader terms, might not where merely. land is .devised ; ^ yet, here, again, a, testator's intention controls ; ^. and Jn some American States,, moreover, " land" has been defined a,s including tenements and hereditaments..* , ., . , -\ . '^ : § 499. The Same Subject r "Messuage "; "PremiBea." — " Messuage " is a term some'What antiquated, which seems however to mean neariy the samd as dwelling-house ;^ and opinions have sometimes differed as to whether a garden comes properly under this' word, as Well as the curtilage or enclosed space immediately- around- the dwelling; which is a more essential' inciderit.® " ' " ■- The" word " premises," which literally denotes that which is already stated; should depend for its breadth upon ^ the ex- pression to which it refers. '^ But long' association* has given the word an independent sense synonymous with land or houser; and this sense is respected by courts of construction.^ § SCX3. The Same Subject: "House," "Mill," etc. — The grant or devise of a house will carry the land on which the house is built; and " house," .like "messuage,!' thus imports iBouv. Diet. "Tenements," " Hgre- * Bouv. Diet. " Messufige.?' The word ditaments"; 3 Kent; Com. 401. -. ..is said to include a churph. lb.; 11 Co, 2 I Jarm. Wills, 777; n H. L. Cas. 26; 8 B. & C. 25. 375. ;. - 8 In modern times thq disposition' is 8 lb.; Styles, 261; 2 Leoii, 41-. - : • to regard the garden, ^nd tjip, orchard * I 'Washb. Real Prop.. 9,^ For the, too, as part and parcel either of a force of the context in determining the "house " or a " messuage." Cro. El. 8$; meaning, where leases: are concerned, 2 Saiind. 400; i Jarm. Wilts, 778. But see supra, § 494. As to passing copy- land beyond a homestead or orchard is holds, see 31 Ch. D. 314. not usually carried by either word. lb. As to the interest given under the And see next section. will neither "tenement," not the broader ' Bouv. Diet. " Premises " ; I Jarm. expression " heteditamfent," has any pe- 778; Biddulph v. Meakin, I East, 456. culiar force, independently of other cir- ^Vo,; Heming v. Willets, 7 C. B. cumstances, to pass a fee. See Wright 709. V. Denn, 10 Wheat. 204, 238. 529 § 500 LAW OF WILLS. [PART VI. all the land within the curtilage, without any mention of "appurtenances."^ "Dwelling-house," as a place for one's abode, is a more specific term ; and as for " cottage," modern usage assigns the sense of a small dwelling-house, with more or less land annexed, though Lord Coke defined it for his times as a little house with no land at all ; ^ while " mansion house " or " palace," as something more pretentious than either of these, conveys the idea of pleasure grounds annexed and a fine approach to the edifice.* But whatever word of this description may be employed, a devise of the house will be presumed to carry that which is accessory and needful for its beneficial use and enjoyrnent, and no more ; admitting, though we must, that a devise de- serves a more flexible interpretation than a grant. House is synonymous, or nearly so, with messuage ; and stables, and yard, garden, and orchard, are prima facie included, so as to enable the devisee to conveniently enjoy the grounds and keep up the style of living at the homestead as before.* But the devise of a house does not include all that the occupier may find it convenient to occupy with it ; nor are adjacent lands or lots, with buildings on them which tenants occupied when the will was made, prima facie included under such a devise, for the sake of the rents and profits.^ Erections, too, for business and trade are distingiiished from those for domestic purposes in such a connection. Nevertheless each will stands by its own intent as manifested by its whole tenor ; and while words of reservation or some other gift may curtail the devise in one case, an obvious desire to confer as bene- ficial an enjoyment as possible and to leave no part of one's estate undisposed of, may in another extend the devise beyond its more literal import ; and a comparison of language in other parts of the will may aid in either case to resolve the doubt.® > I Jam. Wills, 779-781 ; Rogers v. 780; Clements v. Collins, 2 T. R. 468. Smith, 4 Penn. St. 93 ; Whitney v. Olney, See 146 Mass. 373. 3 Mason, 280. 6 Steele v. Midland R. L. R., i Ch. 2 Co. Lit. 56 b. See 2 B. & Ad. 638. 275; Brown v. Saltonstall, 3 Met. 423. *Lombe v. Stoughton, 18 L.'j. Ch. Cf. Blackborn v. Edgley, 1 P. Wms. 400. 600. ♦ L. R. I Ch. 275; I Jarm. Wills, « Under the devise of a "barn," land CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 5OI Again, if one should devise a certain "mill," "factory," " store," " warehouse," or other building for business pur- poses, not only would the building itself pass by force of the descriptive word, but such land under and adjoining it, be- sides, and such privileges as its beneficial use and enjoyment rendered necessary.^ § 50I- ^^^ Same Subject : "Appurtenances " and Similar Ex- pressions. — To make the description still more complete, a devise speaks sometimes of a house (or mill, etc.) " with its appurtenances," with all the lands " appertaining thereto " or "thereunto belonging," or " thereto adjoining," or some simi- lar expression. Such terms seem to intimate that the testa- tor meaixt that a generous effect should be given to his devise ; but to speak strictly, land cannot be appurtenant to a house or other land ; ^ and " appurtenances," though certainly Jiding to give the devisee whatever a commodious and beneficial enjoyment of the premises may require, cannot safely be said to give more than though the expression itself had been omitted.^ For appurtenances are things which pass as inci- dent to the principal thing ; and if the house be conveyed or devised, whatever is incident goes naturally with it.* But courts have distinguished between a house " and its appurtenances," and a house " with the lands appertaining thereto," inasmuch as the latter expression implies at least that some lands are intended ; ^ and so with the less technical enough passes to complete its enjoyment, adjacent lands which the testator had and no more. Bennet v. Bittle, 4 Rawle, treated as a separate tract. I B. & P. 339. As to "homestead" (aside from 53; 16 M. & W. 494, per Parke, B.; its more technical meaning under our Smith v. Ridgway, L. R. i Ex. 46. local statutes), see 14 Iowa, 73. And for * See Bouv. Diet. " Appurtenances " ; the devise of " house and lot," see 37 Story, J., in Whitney v. Olney, 3 Mason, N. J. Eq. 482. 280. But land may pass under the term 1 Whitney v. Olney, 3 Mason, 280; " appurtenances " in a will, to give effect 4 Edw. Ch. 54S; Blaine v. Chamber, i to the intention. Otis v. Smith, 9 Pick. S. & R. 169. As to a riparian owner's 293. See 12 Pick. 436. As to the devise of "all my water privileges," bequest of a shot-tower, etc., " with all together with his mills and factories, see the appurtenances," in carrying a quan-. Nye V. Hoyle, 120N. Y. 195. tity of unmanufactured materials in the s Co. Lit. 121 b; 6 Bing. 161. building, see Sparks's Appeal, 89 Penn. » I Jarm. Wills, 781, 782. Grounds St. 148. of doubtful incident to the house may « Plowd. 170 a; Cro. Car. 57; I Jarm thus be carried. Cro. El. 113. But not 782. 531 § 503 LAW OF WILLS. [PART VI. term, " thereunto beldnging." ^ The phrase " thereunto ad- joining " seems to suggest the idea of carrying a contiguous tract or tracts of land, and thus in fact have courts construed its meaning.^ § 502. Devise of a " Farm," "Freehold," etc. — " Farm " in English law, meant originally the rent reserved on a lease, but extended in sense to the leasehold interest, or even the land itself, which was let to farm or rent. Farmers did not own the land they cultivated, but leased it from the landlord in large tracts, paying a yearly rent. Hence in modern times the word "farmer" means commonly an agriculturist or tiller of the soil, while a farm is the tract used for agricultural pur- poses, such as raising stock, fruit, grain, and vegetables. In England farms are more commonly rented to this day; but in the United States most farmers are their own landlords ; and " farm " has come to mean in both countries a tract de- voted to agriculture, whether owned by the cultivator or not.^ The devise of a farm in modern times will pass a messuage, arable land, meadow, pasture, wood, etc., together with the farmhouse and outbuildings ; and the word "farm " may pass a freehold, if such appears to be the testator's intent.* A devise of a " farm " may even include outlying tracts which were commonly known as a part of it.^ § 503. Devise of " Rents and Profits " ; " Use and Occupation," etc. — A devise of the "rents and profits" of land has from the days of Coke been considered as passing prima facie the - land itself, since by the old feudal rule the whole beneficial interest of land consisted in taking rents and profits.* And the same holds true where the " income " of lands is devised. '^ 1 I Bing. 483; 2 B. & Ad. 680; i may pass copyholds, where there is no Jarm. 783. • residuary devise. 31 Ch. D. 314. 2 Josh V. Josh, 5 C. B. N. S. 454. ^ Gafney v. Kenison, 64 N. H. 354. 82 Bl. Com. 17, 42; Bouv. Diet. « Co. Lit. 4 b; 2 B. & Ad. 42; Blann "Farm"; and see Aldrich v. Gaskill, v. Bell, 2D. M. & G. 781; i Jarm. 10 Cush. 155. Wills, 797; Sammis v. Sammis, 14 R. I. * Co. Litt. 5 a; Shep. Touch. 93; 123; 2B. &Ad. 30; Hawk. Wills, 120. Belasyse v. Lucan, 9 East, 448; I Jarm. '' Mannox v. Greener, L. R. 14 Eq. Wills, 785; Griscom v. Evens, 40 N. J. 456; Earl v. Rowe, 35 Me. 414; Ryan L. 402. "Freehold farm and lands" o. Allen, 120 111. 648. CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 504 Such a devise without words of inheritance added, carried prima facie a life estate only ; but under the Statute of Vic- toria, a fee simple rather is presumed, or at least the iVhole interest which the testator had power to dispose of.^ But no such construction of a fee can avail in violation of the testa- tor's true intention.* Where one devises the " use and occupation " or the "free use " of land, a right to let or assign the interest is implied, and not personal use and occupation alone, unless the context imposes the narrower construction.^ And where land is spe- cifically devised, rents accrued at the testator's death do not follow the land, but go rather to the residuum of the estate.* § 504- Descriptions relating to Personal Property; "Mort- gages ' ; " Securities for Money," etc. — After much controversy it has been settled in the English courts that land held by the testator in security will pass by the words "mortgages" or "securities for money," and similar expressions, so as to give not only the land but the entire benefit of the mort- gage security, to the person designated in the will, unless a contrary intent appear ; on the broad principle that the tes- tator meant to substitute the object of the bounty in his own place as mortgagee, and give him the full power to enforce the mortgage.^ Nor is this construction to be affected by terms descriptive of personal estate only, and by limitations or charges such as simply affect property of that character.^ Thiis the legal estate in a mortgage will pass under the term "securities for money," although the bequest is made subject to the payment of debts and legacies or in trust for sale ;^ 1 See 1 Vict. c. 26, § 28; Hodson v. Renvoize v. Cooper, 6 Mad. 371 ; Haw- Ball, 14 Sim. 571 ; Mannox v. Greener, kins Wills, 48. supra; I Jarm. Wills, 791. Cf. Collier ' lb. Money secured by a mortgage V, Grimesey, 36 Ohio St. 17. of land in fee is in substance personal 2 Bowen v. Payton, 14 R. I. 257. property, and a gift of a mortgage ' I Saund. 181; 4 T. R. 177; Hawk, security for money is a gift of all the Wills, 119; 4jur.N. S. 199; i Jarm. 798. testator's interest in both money and * Parkers. Chestnutt, 80 Ga. 12. See security; hence the fee of the land is § 523. carried. Renvoize v. Cooper, 6 Mad. 5 I Jarm. Wills, 699, and cases cited; 371. King's Mortgage Re, 5 De G. & S. 644; ' 2 K. & J. 503; Barber, Ex parte, 5 Sim. 451. 533 § SOS LAW OF WILLS. [PART VI. though under a devise of "lands," as we have seen, such restrictions would have prevented the legal estate from pass- ing.i A bequest of "securities for money " will not pass shares in a stock company organized under English laws, nor per- haps in our American sense ; for stock is a sort of incorporeal chattel of a different description, and a certificate of shares is not a security.^ Nor does a bequest of " money and securi- ties for money" carry a debt which is unsecured.^ But to this word " security " present usage gives a generous scope far beyond its literal meaning ; and bills of exchange, bonds, public and private, and judgments have thus passed under a will, not to mention mortgage notes, or property held in pledge.* § SOS- "^^^ Same Subject: Gift of "Money" or "Moneys," "Cash," etc. — The word "money" is often used, by the un- educated at least, in a vague but extensive colloquial sense, as though to embrace all of one's personal property, and not gold and silver coin and paper currency alone. A bequest of "money" standing by itself will not be presumed to carry bills of exchange, promissory notes, bonds, mortgages, stock, or other muniments in the nature of incorporeal chattels or securities payable in money.^ Not even public stocks are properly considered " money " under such a gift.® But cur- rent bank notes on hand and such as constitute a legal tender should be included, as well as metal money. '^ As for money not on hand, but in the hands of somebody else, there is some question ; and despite Chief Baron Gilbert's remark that " money is a genus that comprehends two species, viz., ready * Supra, § 495. 5 Hotham v. Sutton, 15 Ves. 327; " Ogle V. Knipe, L. R. 8 Eq. 434; 21 Kay, 369; Beatty v. Lalor, 15 N. J. Eq. L. J. Ch. 843. 108; I Jann. Wais, 768; Hawkins » Mason's Will J?e, 34 Beav. 498. Wills, 49; i Schoul. Pers. Prop. § 352; And see i Schoul. Pers. Prop. 2d ed. 2 Wms. Exrs. 1189, 1190; i Turn. & §§ 353. 37S- Russ. 272. * L. R. 8 Ex. 37; 3 De J. & S. 577; As to money and its legal significa- I Jo. &Lat. 475; 2 Wms. Exrs. 1192. tion, see 2 Schoul. Pers. Prop. 2d ed. So as to money due under a vendor's §§ 335-352. Hen for unpaid purchase-money. Callow * Hotham v. Sutton, supra. V. Callow, 42 Ch. D. 550- ' Brooke v. Turner, 7 Sim. 671. 534 CHAP, n.] DETAILS OF TESTAMENTARY CONSTRUCTION. § $6$ money and money due,"^ neither an unpaid legacy nor an unpaid debt, secured or unsecured, from a third party, nor any other unrealized money right, will pass prima facie as money.^ But money on special deposit with another, and even money due on general deposit from a bank, is favorably regarded as passing under a will ; ^ while as to a savings-bank deposit, earning interest and not subject to check, there is some conflict.* But that vague and comprehensive sense of which the word "money" is capable, justifies any court of construction in giving a much wider sense to this word when refereiice to the context shows it to have been the testator's real meaning. And accordingly the general residue of one's whole personal estate will pass under such a bequest, wherever a just consid- eration of the whole will and the circumstances of the testa- tor requires this construction ; ^ as when, for instance, the debts, funeral expenses, and legacies are directed to be paid out of this "money"; or a complete disposition would bie impossible under the narrower interpretation.® And once more the context may give "money" an enlarged sense. 1 Gilb. Eq. Rep. 200. III. 341. "Residue of my money" is ''Mason's Will He, 34 Beav. 494; ■ construed to include shares of stock and 4 Kay & J. 426; L. R. 16 Eq. 475. securities for money in Smith Re, 42 Money to be paid for a service not com- Ch. D. 302. And see 37 Ch. D. 481. pleted at the testator's death, or payable ^ Rogers v. Thomas, 2 Keen, 8; 2 upon some contingency not determined, Dm. & W. 51; Prichard v. Frichard, does not pass under a bequest of L. R. II Eq. 234; Morton v. Perry, i "money." 7 D. M. & G. 55; 3 Beav. Met. 469; Smith v. Davis, i Grant, 342. 158; Fulkeron v. Chitty, 4 Jones Eq. *7D. M. &G.S5; Johns. (England) 244; Paul z/. Ball, 31 Tex. 10. The 49; Parker v. Marchant, I Phill. 360; claim on an unsatisfied judgment may Beatty v. Lalor, 2 McCart. no; 2 H. I^. be included under a residuary bequest Cas. 31. Money at a bank on general of " all the money I have or may have deposit is in fact a "debt," and may at my death," etc. 72 Tex. 224. pass under a bequest of "debts." i « i Jarm. Wills, 769-773; Legge v. Mer. 541 k; 2 H. L. Cas. 31. Asgill, cited 4 Russ. 369; Waite v, 4 Cf. Beatty v. Lalor, supra, and Coombes, 5 De G. & S. 676; Morton *. Dabney w. Cottrell, 9 Gratt. 580. "All Yetrj, supra ; Hawkins Wills, 51. A my moneys after paying my just debts " gift of the " balance of my money " is may pass savings-bank deposits and sometimes construed in the wills of ill- railroad stock under a vfill with no resid- educated persons, as importing a gift of uary clause. ■ Fowler v. Fowler, 63 N. H. all the residue of the estate, both real 244. And see Decker v. Decker, 121 and personal. Miller Re, 48 Cal. 165. 535 § 506 -, LAW OF AVILLS. [PART VI. yetf^so qualified as tQjfall,, short of, embracing the entire ■residue^ ,.i. • -. •.,■■ -' ;>■ • i--> - - , Other, terms than simply ".money." are ,often used in this qonnection. "Money due. Crisford, 13 Sim. 592; Whart, 362. , Johns. 49. * Parker v. Marchant, i Phill. 356. " Ready money " has under peculiar !' Everyboi^ speaks of the sum which circumstances been held to embrace, for he has.j^t his ba,nker's, as money; 'my the husband's benefit under a wife's money at my banker's ' is ^ usual mode will, the money he had collected for iOf expression. And if jt is,money at her by her authority and expended for the, banker%.it.,is emphajiqally i:£ady iljffusehpld expenses ; all her ready money, bec^us^ .jt is placed .there for .money "in bank or elsewhere" being ^J?je p^^rpo'sp of, being ready '^hen occa- .bedu^sithed to him.; Smith,©. Burch, sion requires.". Per curiae in Parker 92 N. Y. 228. ,536 CHAP. II.] DETAILS OF ^TfiSTAMENTARY CONSTRUCTION. § 508 real property, "movables "may well denote-" personal prop- erty" in the widest sense of the law;^ But as between cor- poreal -and- ineorporeal personalty, an uncertain stand- is taken in 'the construction of wills ; and the disposition of the court appears unfavora'ble to^passing*- incorporfeal personalty by presumption, or at least debts and money rights, or what our earlier 'law denominated the chose iwuctien^ .',■■ ■ '< §,507. The Sa^ie Subject: Gift; of Interest or fro^upe-pf Personalty. — Where the gift is made of the interest, or produce of a fuod to the legatee -or; in, trust:, for him, with- ,guj; any limitation gs to the term pf enjoyment, it will be pr,e.- s]imed an absolute gift so as to carry tjie principal also, though no mention be made of the principal.^ But this presumption, like others, may be controlled by the context ; and that which is given as a life annuity cannot ^be strajnp^eby^ cpnstruction into an absolute estate.* A life estate thus given, however, is i^ot to be regarded as a strict annuity, in the sense that, no apportionment is perniitted on the death of the life bene- ficiary.^ In short, the bequest of the interest, income or prpd- uce of a fund to one and his heirs forever, or without limit as to continuance or time, is a bequest of the corpus of the fund- itself ; and this effect will be given by construction, whether the gift b,e made directly to the legatee or through a trustee's intervention.® This holds especially true whe^-e the will makes no gift, over, for a partial intestacy should not be presumed.^ § 508. pescriptidnB relating to both Realty and Personalty; "Goods"; "ChatteU," — The word "chattels," and perhaps - 1 I Schoiil.- Pers. Prop. 2d ed. §§ 3, 4. Page v. Leapingwell, 18 Ves. 463; 3 2 Penniman- v. French, 17 Pick. 404-; Ohio St.' 369. And see Hawk. 'Wills, ■Jacksbn «». Vandei'ispifeigle, 2 Dallas, 123; Hatch zi. Bennett, 52 N.Y. 359. 14-2; Strong V-. Whitej-ig-Conn. 238., ■ * 2 Wms. Exrs,.ii95; Blewittw. Rob- - 8 2 Wms. Exrs. 1 194 and cases cited; erts, i Cr. &Ph. 274; Hawk. iWills, 125. I Bro. C. C. 532; 'Manhox w. Greener, • -^Stone z;. Noxth, 41, Me. 265. L. R. 14 Eq. 456; Emery !>.- Wason, " Lorton v. Woodward, 5 Del.' Ch. loji- Mass. 507; 132 Mass.-473; Stretch 505; Bishop !<. McClellandi 44 N. J. V. Watkins, i Madd. 253; 7 Sim. 178, Eq. 450. 197. ■ An indefinite gift- of-dividtods 'Cases j«/S>-aj; ^Given v. Hilton>.9S gives the absolute property of the stock. U. S. 591. 537 § $0g LAW OF WILLS. [PART VI. the word "goods," and certainly the term "goods and chat- tels," in a will should be presumed to carry the whole personal estate of every description, if unrestrained by the context, including corporeal and incorporeal property of the nature of movables.^ But while choses in action, or incorporeal money rights are embraced under this description, it has been ruled that a bequest of " goods and chattels " or of " personal prop- erty " in a certain place would not include choses in action, because these have no locality otherwise than by drawing a probate jurisdiction to them.^ Context and the circum- stances may solve the testator's intention on this point when doubt or difficulty arises, and the association of words less comprehensive may confine the meaning of the more comprehensive.^ § 509. The Same Subject : " Effects " ; " Possessions " ; "Things." — "Effects" is a word often found in wills: and being equivalent to property or worldly substance, its force depends greatly upon the association of the adjectives "real" and " personal." " Real and personal effects " would embrace the whole estate ; but the word " effects " alone must be con- fined to personal estate simply, unless an intention appears to the contrary.* A bequest of "all my effects " may doubtless be so controlled by associated words and the context and sur- rounding circumstances as to fail of their full natural force : * but naturally those words carry the whole personal estate.® 1 Kendall v. Kendall, 4 Russ. 370; * Sch. Pers. Prop. 2d ed. § 16; Hick I Jarm. Wills, 751; 2 Wms. Exrs. 1178; v. Dring, 2 M. & S. 448, criticising Moore v. Moore, i Bro. C. C. 127. The earlier authorities; Haw v. Earles, 15 word "chattels" includes animals and M. & W. 450. chattels real, but "goods" standing But the context may show that real by itself appears less comprehensive, estate was also intended; as where the 1 Schoul. Pers. Prop. 2d ed. § 16. testator, referring to a previous devise, * Moore v. Moore, supra; Brooke speaks of " my said effects "; or directs .Z). Turner, 7 Sim. 681 ; Penniman v. those to whom his " effects " are given French, 17 Pick. 404; i Wms. Exrs, to pay an annuity out of his real and 1178. personal estate. 15 East, 394; 2 Jur. " The words " goods or movables "in 610; Hawkins Wills, 55, 56; Page v. a will carry bonds and money unless a Foust, 89 N. C. 447. different intention appears. I Yeates, ' Ennis v. Smith, 14 How. 400. loi. See § 509, note. • Hodgson z/. Jex, 3 Ch. D. 122. "All 538 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. §510 In the old English law possession and seisin were distin- guished; the latter term could not apply to an estate less than freehold, but the former might. Where one gives his "possessions" by will, the word seems apiplicable prima facie to both real and personal property, as it certainly is where associated words and the context imply such an intention. But the word " possessions " is seldom used by a professional draftsman ; and whenever used, its scope must yield to the testator's probable meaning.^ By " things," as opposed in law to the word " persons," is to be understood whatever may be owned of subjects not human ; ^ so that the term appears a comprehensive one, synonymous with property in our present law. But some cases appear to have given it a limited sense in construction, as though confined to the tangible and not extending to c/ioses in action where the bequest is of "all things " in a par- ticular place.^ § 510. The Same Subject: "Estate"; "Property." — The word " estate " is a general term, and in modern construction may be said to embrace prima facie the whole estate of the testator, both real and personal, and his property of every description.* And the same may.be said of "property," a word which comprehends all things of every nature, to which one may be entitled to the exclusion of others.^ But in many my silver, jewelry, and other personal etc., should pass, out of regard to the effects" does not include valuable rail- place where such muniment is kept, road stock, as against a residuary lega- and that this best accords with a testa- tee. 74 Ga. 124. And see § 514. tor's natural intention. See § 512, notes. 1 Blaisdell v. Hight, 69 Me. 306; * i Salk, 236; Barnes v. Patch, 8 Clark V. Hyman, i Dev. L. 382. Ves.604; Hamilton ». Hodsdon, 6 Moo. 2 Bouv. Diet. "Things." P. C. 76; Hunt v. Hunt, 4 Gray, 190; 8 Popham V. Lady Aylesbury, Ambl. Smith v. Smith, 17 Gratt. 276; 32 Miss. 68. Cf. I Sch. & Lef. 318, a decision 107; Archer v. Deneale, i Pet. 585; of doubtful authority for the present Den v. Drew, 14 N. J. L. 68; Jackson day. See also § 508. v. Delancy, li Johns. 365. And see Apart, perhaps, from property purely Given v. Hilton, 5 Otto, 59,1. incorporeal, like the primitive debt, ^ Bouv. Diet. "Property"; Spears money right, or chose in action, it seems Ch. 48; 5 Hayw. 104; Rossetter v. to this writer that incorporeal chattels Simmons, 6 S. & R. 452; Morris 0. evidenced by muniment or security, Henderson, 37 Miss. 492; Browne v. like bonds, promissory notes, chattel Cogswell, 5 Allen, 364. mortgages, savings-bank books, stock, 539 § 511 LAW OF WILLS. [PART VL of the older cases the disposition shown was to confine " es- tate" in meaning as descriptive of personal propeirty only, wherever this was possible, by which means the heir-at-law was of course favored* Associated words which pertain exclusively to personal property, and the context generally may of course indicate that the term "estate" or "property" was applied in the narrower sense in some particular will.^ § 511. The Same Subject: Miscellaneous Terms of Descrip- .tion. : — Wherever a will purports to dispose of real and per- sonal property in the same terms and in the same connection, And it is manifest that the testator intended both to go to- gether, the will must be so construed.^ And in various instances the general residue of a testator's estate, and more especially of personalty, is held to pass under quite informal words and expi-essions, from which a suitable intent may be gathered.* In short, a careful study of the decided cases will show not only that words loosely or inaccurately written may be changed in construction from tbeir meaning as they stand, so that terms which literally import personalty may instead be taken as descriptive of realty,^ or ijice versa, but that words which in their natural sense are applicable exclusively to the one kind of property, may by force of the context be held to include the other also!^ Such an interpretation will not, 1 Hawkins Wills, 54; O'Toole v. Under a bequest of " all my property Browne, 3 E. & B. 572; 6 T. R. 610. of every description," money, doses in " See f.ff., as to '' property," Brawley action, and chattels incorporeal as well V. Collins, 88 N. C. 605; i Dev. L. 382; as corporeal will pass. Hurdle v. Out- Wheeler V. Dunlap, 13 B. Mon. 291. law, 2 Jones Eq. 75. Equity will not presume the devisor » Ireland v. Parmenter, 48 Mich. 631. meant to idclude in a devise of his * i Jarm. Wills, 775 ; Leighton v. "estate" property- which in equity was Bdilie, 3 M. & K. 267; Bassett's Estate not his own. 2 Bibb, 407. As to Jie, L. R. 14 Eq. 54. "AU the rest" carrying community property, see Haley may pass, both real and personal prop- z". Gatewood; ^4 Tex. 281. erty. Attree v. Attree, L. R. 11 Eq. The word "estate" in a devise is 280. descriptive of' the subject of property, ''Hoc li. Tofield, n East, 246; * 2 or the quantum of interest, according to Wins. Exrs. 107$; Evans v. Crbsbie, 15 the context. Hammond v. Hammond, Sim. 600. 8 Gill and J. 436; Jacksdh v. Merrill,' 6 » Williams v. McCOmb, 3 Ired. Eq. Johns. 185; Hart w. White, 26 Vt. 260. 450; 18 Jur. 445. 540 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 512 however, be given upon doubtful and ambiguous expres- sions. § 5 1 2. The Same Subject. — The cases are very many which involve the description of particular words denoting property ; but as social manners change and wills are liable to vary in. cessantly, both as to the use and force of the language em- ployed, the value of the precedents as establishing rules is by no means proportioned to their number ; and a brief reference in the foot-notes may serve well enough our present purpose.^ 1 Haw V. Earles, 15 M. & W. 450. , 2 In 2 Wms. Exrs. Pt. III. Bk. III. c. 2, American edition with Perkins's notes, may be found an ex;tensive col- lection, of the precedents r in ppint; all of them, however, bending to the ap- parent sense disclosed by the testator in each particular case, and especially re- strained in gifts not residuary. " Household goods " will pass all cor- poreal chattels of a permanent nature and not consumed in their use, that are used in, or acquired by, a testator for his house, and contribute to its con- venience or ornament. 2 Wms. Exrs- 1 180, 1 185; I Rop. Leg. 225; Carnagy V. M^oodcock, 2 Munf. 234; Ambl. 611. But not things which happen to be in the house and are even useful for house- hold purposes, but were put there in the way of trade; as 700 beds used for hospital purposes under a contract with the government. lb. ; Pratt v. Jackson, I Bro. P. C. 222. Family plate will thus pass, if in actual use.. 2,. Wmg. 1 181. But not articles like wine, malt, and victuals, whose use consists in their consumption. Slanning v. Style, 3 P. Wms. 334; 3 Ves. 311. Other words associated with " household furniture " may, of course, extend or restrict the sense. See Dennett v. Hopkinson, 36 Me. 350. A watch carried usually on the person does not pass as " household furniture," nor is it "wearing apparel." Gooch V. Gooch, 33 Me. 535; Sawyer V. Sawyer, 28 Vt. 245. " Furniture " is broadly construed in 41 N. J. Eq, 93. 54 Whether it includes a piano, see 59 N, H. 242. See also Chase v. Stockett, 72 Md. 235, 240, where china and plated ware found in the house were held.tjo be included. "The terms 'fur- niture,' or ' household furniture,' when not associated with less comprehensive words,, embrace everything in the house that has usually been enjoyed therewith; and in this case would have passed the portraits and silver ware, had they not been expressly, excepted." , lb., citing various English and American au- thorities. Where the phrase " personal property ai)d furniture " occurs, it is inferred that the testator distinguishecl between them. 2 Demarest, 633. " Money " does not pass as " household furniture," though contained in a secret drawer of an article of furniture. Smith V. Jewett, 40 N. H. 513. Or in a safe, 124 N. Y. 388. As to books, £/; Kelly w.Powlet,Anibl, 61 1; 3 Ves. 311; Ouseley v. Anstruther, 10 Beav. 4$2, And see 2 Wms. Exrs., Am. ed. 1 181-1187, and Perkins's notes. It is obvious that an enumeration of some of the specific things which the testator means to bequeath is desirable in a bequest of this charactef. A bequest of "all the household property in the dwelling-house " will include the wood and coal there and a shot-gun. Frazer Re, 92 N. Y. 239. In a recent case a will gave to A "all my household effects, books and papers of value, and everything the house contains." This last sweeping I § 513 LAW OF WILLS. [part VI. § 513. Description of Gift ; Devise; Bequest; etc. — We may add that while a devise relates in strictness to lands,^ and is expression was treated as restrained by the words preceding; and it was held that neither a note of J^ioo, nor a sav- ings-bank deposit evidenced by a book found with the note among the testa- tor's papers, was included. Webster v. Weirs, 51 Conn. 569. As to "stock on farm," "stock in trade," " plantation stock," " plant and good will," &c., numerous precedents may be found; and wide effect is given to the testator's intention of passing here not articles of domestic enjoyment so much as what aids in carrying on the business pursuit of agriculture or trade. See 1 Wms. Exrs. 1187, 1188, and Per- kins's notes; 3 Atk. 64; 9 M. & W. 23; 4 Jones Eq. 203; 19 Tex. 553. Stock of medicine, &c., " belonging to or contained in my store," keld not to include whiskey in bond upon which excise duty had not been paid. 58 Md. 575. For a devise and bequest of one farm with "stock, grain, and farming utensils" to A, and another farm vrith " st9ck and farming utensils " to B, and the residue of the estate to C, see Baker V. Baker, 51 Wis. 538. A devise of personal property " belonging to or used in connection with " the farm, etc., does not include wheat harvested before the testator's death and on the farm awaiting the market. KempPs Appeal, 53 Mich. 352- " Property at my bank " is held to pass a cash balance, and also shares of stock in the bank's custody for collection of dividend. Prater Re, 37 Ch. D. 481. To carry life-insurance money dif- ferently from what the, policies contem- plate is not to be taken by implication as a testator's intent. Blouin v. Phaneuf, 81 Me. 176; 76 Tex. 293. Yet a policy payable to one's legal representatives may be disposed of by will. See Aveling V. Association, 72 Mich. 7; 83 Me. The word " etc.," added to a particular enumeration of bequeathed articles, does not carry articles of a different kind, not used in connection with the foregoing. 152 Mass. 353. A bequest of a bond having an over- due coupon attached, at testator's death, carries the coupon also. Ogden v. Pattee, 149 Mass. 82. A bequest of bonds in general will carry the severed coupons. Sanborn v. Clough, 64 N. H. 315- Under a bequest of one's "debts" may pass a draft in the testator's favor, and a cash balance at his banker's. I Meriv. 541. See also 3 Meriv. 434; 11 Ves. 356; 2 Wms. Exrs. 1198. A bequest of a bond, note, etc. , bear- ing interest, carries the interest due thereon. Perry v. Maxwell, 2 Dev. Eq. 448; 2 Keen, 274; 13 C. B. 205. But cf. 2 Atk. 112; Harvey v. Cooke, 4 Russ. 34. The word "north" in a devise may mean northerly, northeasterly, or north- westerly. Weare v. Weare, 59 N. H. 293. And see 71 Me. 596. A bequest of " wearing apparel," etc. and "jewelry, contained in eight trunks " may pass jewelry contained in a valise. 30 How. Pr. 265. " Corn, fodder, meat, and other provisions on hand," may include wine and brandy which the testator had provided for his own use. Mooney v. Evans, 6 Ired. Eq. 363. From regard to context, railroad and State bonds may pass under the de- scription of "bank stock." Clark v. Atkins, 90 N. C. 629. A bequest of " bank stock " will carry savings-bank deposits, the testator hav- ing no bank stock. Tomlinson v. Bury, 145 Mass. 346. As to "shares," see 37 Ch. D. 683. The gift of a " trunk and its contents " is not controlled by an unattested paper 1 Sufra, § 3. 542 CHAP. II.] DETAILS OP TESTAMKNTARY CONSTRUCTION. §514 distinguishable from what is bequeathed, the terms " devise and bequeath" are often conveniently associated. But, in furtherance of a testator's intent, the words "bequeath" and " devise " may in any will be treated as synonymous, if the context requires it;^ and the words "devise," "legacy," and " bequest " may be applied indifferently to real or personal property.2 But where the testator uses words in their tech- nical sense that sense must of course prevail.^ § 514- Description of Gift ; General Terms how far restrained by Particular Enumeration. — But here let US observe more generally of terms which describe a gift by way of devise or bequest, that a general and comprehensive term such as " effects," " goods," " chattels," may be restrained in sense to less than their natural import in a given case by the con- text and associated words under the will. For it is a rule of presumption, especially in clai^ses not residuary, that where a more general description is coupled with an enumeration of things, the description shall cover only things of the same kind ; * .and doubtless words of general description may by due regard to the context be considered as limited by an attempt at particular description.^ Thus a bequest ending "and everything the house contains" maybe restrained in effect by prior words detailing the kind of things.^ And so, too, where a previous enumeration of such articles as gold rings, a chest, a box, is followed by the sweeping clause " and inside the trunk directing that money Wis. 53; Edmondson v. Bloomshire,. shall be used for certain purposes. 11 Wall. 382. Magoohan's Appeal, 117 Penn. St. 238. 1 Dow v. Dow, 36 Me. 21 1; Brown Whether a savings-bank book inside v. Taylor, l Burr, 268; Thompson v. would be thus bequeathed, quare. lb. Gaut, 14 Lea, 310. In a recent English case, where the old ^ Ladd v. Harvey, 21 N. H. 514. objection to passing choses in action was " Legatee " may be read " devisee " or discussed, the gift of a desk with its " distributee," as circumstances require, contents was held to carry various 15 Sim. 600 ; 23 Geo. 571. checks and promissory notes, as well as ' Hazelrig v. Hazelrig, 3 Dana, 48. coin and bank notes. Robson Re, 2 Ch. * Given v. Hilton, 5 Otto, 591. (1891) 559- But a key found inside ^ Allen v. White, 97 Mass. 504; the desk gave no title to a box of Urich's Appeal, 86 Penn. St. 386; 124 securities elsewhere, which the key un- Mass. 1 11; Freeman v. Coit, 96 N. Y. locked. lb. 63; supra, §^475; 3° Ch. D. 92. See further Wolf v. Schoefiher, 51 « Webster »>. Weirs, 51 Conn. 569. 543 § 514 LAW OF WILLS. - [part VI. all things not before bequeathed/' the -court has eixcluded a leasehold right from the bequest.^ Hence does it happen, as we have already seen, that words so comprehensive when standing alone as "effects," "goods," "chattels/' or even "es- tate" or "property," may by their joaxtaposition with words less broad be treated as restrained within narrpwer limits • the generic being controlled by, the specific, by the particulars which describe the property, intended.^ ^ . . . .» Among the circumstances which bear in favor of reducing the natural scope of general words which a testator uses in description are these : that a subsequent specific bequest is made td the same legatee;^ or that particular dispositions have followed in favor of Other persons;* or that the clause is not residuary in character ; or, more strongly still, that explanatory and restrictive expressions occur afterwards in connection With the gift.^ And the indisposition -of courts appears strongest, when choses in action qx incorporeal per- sonalty (which may be evidenced in mere writing to a considerable value), or even money, is claimed, where the particular description indicates that only corporeal chattels whose intrinsic worth depends upon what is visible and tangi- ble were in the testator's mind.^ ; But this rule of restraining a more general description by the context and by associated words of narirowef import, is after all but a rule of presumption, as we should ^bear carefully in mind. It yields to the testator's intent as gathered from the whole instrument." Thus, if a will in its general descrip- ? Cook p. Oakley, i P. Wms. 302. watch." Criehton v. Symesj 3 Atk. 61, 2§ 513, note; I Jarm. Wills, 751 ; Where "etc." follows words of particular Peaslee v. Fletcher, 60 Vt. 188. description, things ejusdem generis is 8 Rawling. z;. Jennings, 13 Ves. 39; meant. 26 Beav. 220; Barnaby w. Tas- Richardson v. Hall, 124 Mass. 228; i sell, L. R. 11 Eq. 363; Woodcock. ». Johns, Ch. 329. Woodcock, 152 Mass. 353. * Wrench v. Jutting, 3 Beav. 521. « Benton v. Benton, 63 N. H. 289. 6 I Jamj. Wills, 753, 754. As where The gift, of the income of stocks and the will says : " Whatever I shall have bonds implies further that the principal at my death, as plate, jewels, linen, is not given. lb. And see Reynolds household goods, coach and hprses." .ff?, 1 24 N. Y. 388. Timewell v. Perkins, 2 Atk. 103. Or ' i Jarm. Wills, 755-758; Bennett v. "goods, wearing apparel, of what nature Bachelor, Bro. C. C. 29; i Russ. 2765 and kind soever, except my gold Martin z/. Smith, 124 Mass. Ill; Urich's 544 CHAP. II.J DETAILS OF TESTAMENTARY CONSTRUCTION. § 5x4 tion purports to dispose of all the personal property, or of all the property real and personal, and charges the legaitee with the payment of other legacies, a broad residuary gift may fairly be implied, notwithstanding an enumeration of particulars.^ And so, too, where the enumeration of particulars seems to lead up to a sweeping general term which is added by way of embracing whatever remains unmentioned,^ and the whole effect is that of a residuary bequest.^ Nor is it essential to the broader construction that the generic term should follow the specific, for there may be a general term, followed by what was meant to be an enumeration (as under a videlicet or "namely ") but a defective one in particulars.* A misdescrip- tion of the particular will not vitiate the correct general de- scription.^ And Mr. Jarman considers it a conclusive ground in favor of the enlarged sense of an equivocal gift, that the bequest contains an exception of certain things which would not have been comprised under the narrow sense ; since the testator, by showing that without this exception the gift would have included the excepted articles, has afforded a key to his own ambiguous meaning.® In fine, courts at the present day decline to be hampered by any rule which would sacrifice the testator's true meaning out of undue regard for the association of words of limited scope with broad generic terms ; and the modern inclination Appeal, 86 Penn. St. 386; supra, % ^"j^; construction to cattle used merely for Given v. Hilton, 5 Otto, 591. stock. 64 Tex. 22. 1 Chapman v. Chapman, 4 Ch. D. " Ornaments " from the context may 800. include articles of jewelry. 75 Cal. 2 Campbell v. Prescott, 15 Ves. 503; 189. 5 Mad. 69; 6 Mad. 119; Arnold v. * Fisher v. Hepburn, 14 Beav. 627; Arnold, 2 My. & K. 365. Lord Gotten- and see remarks of Romilly, M. R., in ham's statement in Arnold v. Arnold ib. This case is followed in Dean v. seems to be generally accepted by the Gibson, L. R. 3 Eq. 717, and King v. later English authorities, though it con- George, 5 Ch. D. 627. flicts with some earlier cases; namely, ^ Martin v. Smith, 124 Mass. iii; that " the mere enumeration of some Freeman v. Coit, 96 N. Y. 63. items before the words ' other effects ' « I Jarm. Wills, 756, citing in point does not alter the proper meaning of Hotham v. Sutton, 15 Ves. 319. This those words." Hodgson v. Jex, 2 Ch. question, though arising usually under D. 122. gifts of personalty restricted to a certain 'Taubenhan v. Dunz, 125 111. 524. locality, is equally applicable to other " All my cattle " may be restrained by cases. I Jarm. 756. 545 § $16 LAW OF WILLS. [PART VL both in England and America is to treat words of general de- scription as unlimited in sense by an attempt to state partic- ulars where the will as a whole discloses no intention to the contrary ; though not of course where this favorable pre- sumption is overcome.^ § 515. The Same Subject. — But as Mr. Jarman observes, where the general term has been treated as unrestrained by the particular enumeration, there was no other bequest capa- ble of operating upon the general residue of the testator's es- tate than the clause in question.^ Partial intestacy under a will is a conclusion to be avoided in construction if possible ; ^ but where such an alternative is needless, inasmuch as another clause in the will contains a residuary provision, and a con- sistent and effective interpretation of the testator's whole meaning is thereby given, an argument arises in favor of restraining the effect of the doubtful bequest.* Property which is devised or bequeathed may be plainly enough described, although reference be made in aid of the 'description to some other document which cannot be found.® § 516. A False Description does not vitiate, etc. -—Latin maxims borrowed from the civil law are not unfrequently applied in the construction of a devise. One of these maxims, and a familiar one, is that a false description does not injure ;* that is to say, that where the description is made up in part of what is true and in part of what is false, the untrue part will be rejected as not vitiating the devise, if the part which is true describes the subject with sufficient cer- tainty.^ The description so far as it is false is taken to apply to no subject at all, and so far as it is true, to one 1 See supra, § 475; i Jarm. Wills, » Supra, § 490. 759. * Woolcomb V. Woolcomb, 3 P. Wms. Where a sum of money is bequeathed, 112; 2 D. & Wa. 59; i Jarm. Wills, " including " all notes, etc., the notes do 761 ; Reynolds Jie, 124 N. Y. 388. not pass in addition to the sum, but as ' Beckett Jfe, 103 N. Y. 167. a part of it. Henry v. Henry, 81 Ky. « Falsa demonstratio non nocet cum 342. de corpore constat. " I Jarm. Wills, 760, 761. ' i Jarm. Wills, 785. 546 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 516 subject only.i This maxim must be taken in furtherance of a testator's intention and not to subvert it. For instance, where one plainly identifies the prertiises devised by him, and yet calls them ■" freehold " when in fact they are " leasehold," or vice versa^ or describes the house as tenanted by A when it was tenanted by B, or purchased of A when it was purchased of B ; or mentions the farm he gives by will as consisting of about 130 acres when it was much larger or much smaller ; ^ or where he describes a lot accurately except as to the initial point ; * in these and similar instances the plain identification in the main of what is devised carries the property, and the subordinate misdescrip- tion which is superadded may be thrown out in construction as surpilusage.^ In fact, wherever it is clear that the testator intended to pass specific property by his will, it will pass not- withstanding a misdescription of the property, so long as there is enough correspondence to afford the means of iden- tifying the subject of the gift.^ To pursue this subject farther. A gift by words of general description, we have seen, is not to be limited by a subse- quent attempt at particular description.^ "All my real estate " has accordingly been held to embrace a parcel on the south side of the street, even though the lands were described as though all situated on the north side.^ And there are cases where premises are described as occupied by B when B manifestly occupied only part thereof.® In short, testing such questions by the true meaning of the will, it may frequently happen that an estate definitely and fully described, may have 1 Morrell v. Fisher, 4 Ex. 591, per cumstance which bears in favor of the Alderson, B. more limited construction. Tewksbury 2 Day V. Trig, I P. Wms. 286; 7 M. v. French, 44 Mich. 100. & W. I ; Cox V. Bennett, L. R. 6 Eq. * Ehrman v. Hoskins, 67 Miss. 192. 422. ° Cases supra ; Emmert v. Hays, 89 » Whitfield V. Langdale, I Ch. D. 61; III. 11; 8 Or. 303; Wales v. Temple- Aldrich v. Gaskill, 10 Cush. 155; Bear ton, 83 Mich. 177. V. Bear, 13 Penn. St. 529. But where ° Woods v. Moore, 4 Sandf. 579. there are devises to different parties, and '' Supra, §§ 475, 514. the actual quantity instead of that de- ^ Martin v. Smith, 124 Mass. lit. scribed would have left not land enough ' Cro. Car. 129.^ Cf. L. R. 16 Eq. to satisfy all the devises, this is a cir- 177, /^r Lord Selhorne. ■547 § 5l8 LAW OF WILLS. [part VI. some particular added which holds good of a part of the estate only, and may therefore be discarded in construction.^ On the other hand, a particular misdescription cannot enlarge the premises whose general description identifies it plainly.^ § 5 1 7. But Particulars may qualify a General Description. — But where, on the other hand, there is a clear enumeration of particulars which purport on their face to be designed as qualifications of a preceding general description, words of general devise must yield, and the maxim falsa demonstratio non nocet does not apply ; ^ but rather the maxim, ex prcBceden- tibus et consequentibus optima fiat interpretatio.^ And hence of two adjoining parcels it may appear that only one was given.^ Nor can words which describe the object of a devise be discarded as false demonstration unless they are clearly repugnant to other descriptive phrases of more importance.® Where a devise gives the area and also describes by bounds, it is the latter description which controls.^ And where ref- erence is made to a map or plan which is on public record for a description of the property, it is fair that the boundaries as therein described shall control, if no reason appears to the contrary.* The same parcel of land may be described in a will by one or more references.^ § 5 1 8. Repugnant Description ; Language of Will not to be subverted. — Where something is devised, and there are found two species of property, the one completely corre- sponding to the description, and the other not so completely, the latter will be excluded while the former takes effect.^* And generally, in case of a discrepancy between two modes 1 I Jarm. WUls, 786, 787; I M. & ^ Griscom v. Evens, supra. Sel. 299; Down v. Down, 7 Taunt. 343; ^ Evens v. Griscom, 42 N. J. L. 579. Drew V. Drew, 28 N. H. 489. ' Lyon v. Lyon, 96 N. C. 439. 2 Tyrell v. Lyford, 4 M. & S. 550; « Finelite v. Sinnott, 125 N. Y. 683. I Jarm. Wills, 789. » As by reference both to the deed ' Griscom v. Evens, 40 N. J. L. 402; and to occupation under it. 115 N. Y. Drew V. Drew, 28 N. H. 489. 290. * From what precedes and what fol- i" Ryall v. Bell, 8 T. R. 579; 4 M. & lows, we must gather the best interpre- S. 550; 1 Jarm. 791, 792; Morrell v. tation. And see § ^14. Fisher, 4 Ex. 591. 548 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § Sl8« of description, that mode will be followed which is the less liable to mistake.^ Where, finally, the will clearly purports to give that which the testator has not, the court refuses to subvert its language, upon any conjecture, however plausible, that something of quite a different description was really intended ; nor will evidence from without be admitted to show that what is not ambiguously expressed meant other than it purports.^ Thus where a testator having lands in the county A, devises all his estates in county B, where he has nothing, the lands in the former county will not pass ; ^ and even though partial intestacy be the alternative, the rule is not changed. But an effect so disastrous is sometimes avoided by striking out erroneous particulars where there remains sufficient to iden- tify the property with reasonable certainty. Thus where the will devised "lots i and 2 in block 187" when the tes- tator owned no such lots, but lots 3 and 4 in that block, the property was treated as sufficiently identified by "block 187," after rejecting particulars as to the numbers of the lots.* § 5 1 8 «. Real Estate with the Personalty thereon. — Where a lot is devised and bequeathed with all the personal property thereon, it passes the live stock, even though the cattle some- times grazed elsewhere.^ But under a mere devise of land and the buildings thereon, personal property stored in one of the buildings does not pass ; ® but there must be such an actual 1 Redding w. Allen, 3 Jones Eq. 358. Allen, 113 111. 53. Cf. 113 111. 327. * See supra, § 478. The direction for a division of the tes- ' 8 Bing. 244; I Jarm. Wills, 795; i tator's land may be void for uncertainty Mackey (D. C.) 468; Sturgis v. Work, of description. Ehle's Will, 73 Wis. 122 Ind. 134. 445. See §§ 592-594. As to admitting * Moreland v. Brady, 8 Or. 303. See extrinsic evidence of the testator's intent also Black v. Richards, 95 Ind. 184. v^here the description was partly right, But cf. Sherwood v. Sherwood, 45 Wis. cf. §§ 573, 574, et seq. The distinctions 357, which appears contra. A devise run in the cases are sometimes very of "my house and lot in the town of close. Patoka, Illinois," is held sufficiently defi- ^ Martin v. Osborne, 85 Tenn. 420. nite.in Allen v. Bowen, 105 111. 361. ' Dana v. Burke, 62 N. H. 627. In And see Severson v. Severson, 68 Iowa, this case a boat was stored in a barn. 656. But the devise of a farm described Nor would the boat pass under a be- will not carry a farm elsewhere. Christy quest of household furniture. Xb.; § 512. V. Badger, 71 Iowa, 581; Bowen v. 549 § $19 LAW OF WILLS. [PART VL or constructive annexation to the realty as complies Avith the law of fixtures in order to divest a chattel of that original character.^ Where, in the clause of a will not residuary, real estate is specifically devised and bequeathed, with all its lands, buildings, and appurtenances, " including all the furniture and personal property " in and upon the same, or in any manner connected with it, and there is a vault upon the premises which contained various incorporeal kinds of personalty, such as stocks and bonds at the testator's death, such securities are not presumed to be included but go rather to the residuary legatee.^ §519- Residuary Bequest of Personalty ; its Effect. — A general residuary bequest of personal property operates upon all the personal estate which the testator may have at his death, and prima facie carries with it not only whatever remains undisposed of by his will, but whatever despite the will fails of disposition in the event from one cause or another.^ It includes in consequence both lapsed and void legacies, those which turn out void, and those which fail by the death of the legatee while the testator was alive.* For a presumption (to quote from Sir Wm. Grant) arises in favor of the residuary legatee against every one except the par- ticular legatee, since a testator is supposed to give his per- sonalty away from the former only for the sake of the latter.^ And the English precedents require strong words in any will to rebut this presumption in favor of the residue.® 1 lb. And see generally, as to fix- Drew v. Wakefield, 54 Me. 296; Firth tures, I Sch. Pers. Prop. §§ 111-133. v. Penny, 2 Allen, 471; Woolmer's 2 Reynolds Rt, 124 N. Y. 388 and Estate, 3 Whart. 480; 4 Barb. go. cases cited. And see §§ 514, 515. ^ Cambridge v. Rous, 8 Ves. 25. » I Jann, WilK 645, 761 ; Hawkins « Bland v. Lamb, 2 J. & W. 406; 12 Wills, 40. All the personal property Jur. 547; i6Ves. 451; Clowes z/. Clowes, passes to the widow by the words "all 9 Sim. 403; Leake v. Robinson, supra. the personal property is hers," though Even where a residuary clause gives all some is specifically mentioned as be- "except" certain specific legacies (which queathed to her. Risk's Appeal, 1 10 happen to fail) or " not already disposed Penn. St. 171. of," the courts incline to favor the resid- * Brownz/. Higgs,,4Ves. 708; 2 Ves. uary legatee in construction. 2 Coll. 285; Tindall I-. Tindall, 23 N. J. Eq. 516; 10 Beav. 276; I Jarm. Wills, 762J 244; Leake v. Robiilson, 2 Mer. 392; 20 Beav. 579. CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTIOX. § $19 Nevertheless, this strong presumption in favor of the residuary legatee, where personalty is concerned, is liable in any case to be rebutted, like any other presumption in testa- mentary construction ; and where the will shows that the testator meant that the residuary gift should take only a limited effect, that meaning must operate.^ Thus there may be an express reservation against the residue in language not to be mistaken.^ And the gift of residue may be restricted by the context, or by provisions inconsistent with a more liberal construction.* Moreover, as by " residue " we mean that which is only disposed of effectually in the residuary clause, any part of the residue which itself fails does not prima facie swell the remaining part of the residue, but goes as estate undisposed of.* Where legacies are given to several legatees, and the residue is bequeathed to the same legatees, it follows that the residue will not include a lapsed legacy to one of them.* In general, the comprehensive import of the word "residue" does not prima facie extend to a gift of that residue; for a gift "of the residue" of the residue of one's personal estate is, in fact, a gift of the residue of a particular fund.« 1 I Jarm. Wills, 762; Hawkins Wills, Thus, if the testator gives ;^iQ,ooo out 41 of the residue of his personal estate to 2 Davers v. Dawes, 3 P. Wms. 40; A, and the residue to B, and the be- Amb. 577; Kay, 507; 45 Minn. 48. quest to A fails, the gift to B will not 8 Ludlow V. Stevenson, I De G. & J. generally carry this ;^io,ooo to him, but 496; Baker's Appeal, 115 Penn. St. the sum will go as undisposed of. Green 590. V. Pertwee, 5 Hare, 249; i Sim. N. S. < Hawkins Wills, 41, 42; Sykes v. 115; White w. Fisk, 22 Conn. 35; Beek- Sykes, L. R. 4 Eq. 202; Skipwith v. man v. Bonsor, 23 N. Y. 312. Caball, 19 Gratt. 786; I Jarm. 764; The English rule under the Statute I Sw. 566; Humble v. Shore, 7 Hare, of Victoria regards a general residuary 247. For, should a residue be given in bequest as including not only personal moieties, to hold that one moiety lapsing property which the testator ineffectually shall accrue to the other, would be to hold attempts to bequeath, but property over that a gift of the moiety shall eventually which the testator has a general power carry the whole. Plumer, M. R., in I of appointment and which he has by the Sw. 566. But this is after all a mere will ineffectually appointed. Hawkins question of intention as before. I Jarm. Wills, 41 ; Spooner's Trusts, 2 Sim. N. S. 764; Evans v. Field, 8 L, J. N. S. 264. 129; i Johns. (Eng.) 276; § 526. 6 Lombard v. Boyden, 5 Allen, 25 1; A gift of "all my personal property," Craighead v. Given, 10 S. & R. 353. the land haying been devised specifically, 6 Hawkins Wills, 43; J S.w. 566. may be presumed a gift of the personal 551 § 521 LAW OF WILLS. [PART VI. § 520. The Same Subject: General Bequest of a Particular Residue. — Where a general bequest is made of chattels of a particular description, — as of all one's mortgages; or stocks, or moneys in bank, — the bequest will carry whatever chat- tels of that description the testator leaves at his death, whether less or more than he might have expected to leave when the will was made.^ And by analogy to the doctrine of our preceding section, the general bequest of residue answering to this particular description will embrace all of that kind whose disposition has failed in the event from any cause.^ But where the testator gives the residue, as of a definite sum or a definite ascertained fund, the bequest of a particular residue has no such comprehensive force.^ It may be of importance to consider, when construing a will, whether the word " residue " or the residuary gift, how- ever expressed, comprises the general personal estate or is confined by the context to such portion of a particular fund already dealt with as remains undisposed of;* for in this latter case the bequest of "residue," even in its widest sense, can carry no more than the particular residue.^ In a bequest of the residue of one's property "of every descrip- tion," words which merely describe the different kinds thereof . are not of limitation but illustration.® § 521. Residuary or General Devise, and its Effect. — As for a residuary or general devise of real estate, the rule has not corresponded in construction to that of the residuary bequest. In the first place, the old law permitting a testator property remaining after the payment of English cases are collated. The testa- debts, no Penn. St. 171. tor's intent as shown in the whole will 1 I Jarm. 691, 765; Page v. Young, solves all such questions, and dispenses L. R. 19 Eq. 501. with abstruse maxims under this head. ^ De TrafFord v. Tempest, 21 Beav. * i Jarm. 767; Boys z/. Morgan, 3M. 564. & Cr. 661. ' L. R. 2 Eq. 276; Easum v. Apple- ^ j^\\ j,. Jacobs, 3 Ch. D. 703; 58 ford, 5 My. & Cr. 56. As to the natural How. Pr. 107. import of making an express charge * Burnside's Succession, 35 La. An. upon the fund, see Baker v. Farmer, 708. A residuary bequest may carry a L. R. 3 Ch. 537; II Ch. D. 949. And recognized claim upon the government, see I Jarm. Wills, 765-767, where the Pierce v. Stidworthy, 79 Me. 234. 552 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 521 to devise -01117 ^^^ ^^^^ estate to which he was actually entitled ■when the will was made, and none acquired subsequently,^ it followed that the devise, however general in terms, was in effect specific ; or rather it disposed specifically of what was not already expressed to be given by the will. On general principle the heir-at-law was favored as much as possible,^ even to the detriment of a residuary devisee ; and accordingly a specific devise lapsing by the death of a devisee, the heir and not the residuary legatee took the advantage ; ^ and in fact whether a devise lapsed or was void ad initio, the resid- uary devise did not absorb it.* This rule has produced some refinements of construction which are no longer of much consequence ; for modern legislation both in England and America puts personal and real estate on substantially the same footing in this fespect, treating both lapsed and void devises as diCcrvimg prima facie to the residuary fund ; so that consequently the residuary devisee or legatee shall take the essential benefit unless the will discloses an intent to the con- trary.^ Moreover, in England and our several States, after- acquired real estate may pass by a will, and the instrument may speak with reference to all property, real or personal, as of the date when it comes into operation, or, in other words, when the testator dies.® Under the statute policy, therefore, which applies to wills made within the last half-century, or thereabouts, the analo- gies of legacies and devises fairly harmonize in construction, 1 Supra, § 29. residuary legatee wherever the testator 2 Supra, § 479. intended to devise the residue exclusive ' I Jarm. Wills, 645, 646; Goodright of a part given avfay. Amb. 645. See V. Opie, 8 Mod. 123; Fort. 182, 184; also Ferguson v. Hodges, I Harring. Prescott V. Prescott, 7 Met. 141. 528. * Tongue v. Nutwell, 13 Md. 415. * gtat. i Vict. c. 26, § 25; Cogswell Some English authorities appear to dis- v. Armstrong, 2 K. & J. 227; Thayer v. tinguish in favor of a void devise, Lord Wellington, 9 Allen, 284; Defoird v. EUenborough, for instance. Stewart v. Deford, 36 Md. 168; Massey's Appeal, Sheffield, 13 East, 527; 33 L. J. Ch. 88 Penn. St. 470; I Jarm. Wills, 646, 582; Hawkins Wills, 44. But lapsed 651, and American notes; Drew v. and void devises stand in reason on the Wakefield, 54 Me. 296; Kip v. Cort- same footing. I Jarm. Wills, 647 and land, 7 Hill (N. Y.) 348. cases cited. And Lord Camden lays ' Supra, §§ 29, 486; Stat. 1 Vict. §§ down the rule emphaticaUy against the 3, 24. 553 § 522 LAW OF WILLS. [PART VI. SO far as residuary gifts are concerned. The intention to carry lapsed and void devises, as well as the estate undisposed of, to the residuary devisee,, is not to be defeated in construc- tion by expressions like " all other land," or " all land not hereinbefore devised." ^ Yet an express reservation or ex- ception against the residuary devisee or in favor of heirs would receive its due interpretation. So, too, the general devise of a particular residue, as of the rest of the testator's lands in the town of A, should receive a limited and particular effect.2 And once more, if the general residuary devise fails to take full effect as to some aliquot share, the presumption is that so much of the land lapses to the heir as property undisposed of. ^ § 522. Devise of Residue, etc., gives both Real and Per- sonal Property. — A devise of "all the residue" of the testator's property or of his estate, is presumed to pass real as well as personal property ; * meaning by " residue " what- ever surplus may be left after all liabilities of the estate are discharged and the other specific purposes of the will carried into effect ; ^ and so with kindred expressions such as " all the rest and residue " or " all the rest, residue, and remainder." ^ If heirs or kindred are expressly excluded from benefit under the will, all the clearer is the import of expressions like these. '^ And a devise of rest, residue, and remainder in real estate will pass a fee, under the modern 1 Green v. Dunn, 20 Beav. 6. » Jones Eq. 302; Smith v. Terry, 43 !" Springett v. Jennings, L. R. 10 Eq. N. J. Eq. 659; 45 Minn. 48. 488; ib. 6 Ch. 333.; supra, § 521. 6 2 Jones Eq. 215; 2 Desaus. 422; ' Supra^ § 519; Created v. Created, Parker v. Parker, 5 Met. 134; Smith v. 26 Beav. 621. And see i Jarm. 651, Smith, 17 Gratt. 268. 652- ■f Atkins V. Kron, 2 Ired. Eq. 58. A A devise and bequest of "aU my es- gift of "all the balance" of the testa- tate, both real and personal, that I shall tor's property, both real and personal, inherit as my portion after my father's " to the exclusion of all others," clearly death," receives full effect as to real imports an intention to pass all the real estate, in 140 Penn. St. 325. estate of which the testator should die * Faust V. Birner, 30 Mo. 414; Eraser seized. Wynne v. Wynne, 23 Miss. 251. V. Hamilton, 2 Desaus. 573; i Wash. "Balance of my estate" is exhaustive, 45; cases ittfra. carrying both real and personal estate. Grmies v. Smith, 70 Tex. 217. 5.S4 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTIOX. § 523 rule, even though no words of limitation or inheritance be added. ^ Such words as "rest," "residue," "remainder," are not indispensable to a residuary bequest of personal estate ; but in various instances words and expressions quite informal have been given this effect, out of regard to the testator's obvious intention.2 A devise of this character has been held, agreeably to the intent of the will, to carry all the real estate, although " money " was the term employed. ^ § 523. Residuary Bequest or Devise as to Intermediate Income. — A general residuary bequest, even though contin- gent in terms, will carry the intermediate income which is undisposed of but accumulates ; * or at all events until the law against long accumulation stops it and turns the stream to the next of kin.^ Even though this personalty or part of it is to be laid out in lands, the income like its corpus con- tinues personalty meantime, and the rule holds good.® But as for future specific bequests generally, the rule is that the intermediate income does not pass to the legatee before the period of vesting.^ On the other hand, devises of real estate to take effect at some future period, or when the devise itself is contingent or deferred in point of enjoyment,, do not in general carry the intermediate rents and profits prior to the period of vesting ; and whether the devise be specific or residuary, the income, 1 Parker v. Parker, 5 Met. 134. devise by way of residue not specified, But where one gives by will absolutely see 31 N. J. Eq. 560. to certain persons, and in certain con- ^ Leighton z/. Bailie, 3 M. & K. 267; 2 tingencies "what may remain" aften Phill. 578; L. R. 14 Eq. 54; I Jarm. the death of such persons to others, the Wills, 775 ; Wynne v. Wynne, supra. words " what may remain " can mean ' Jacob's Appeal, 140 Tenn. St. 268. no more than what might survive ordi- * Trevanion v. Vivian, 5 Ves. 430; 2 nary use, wear, and decay. Robertson Atk. 472; i Jarm. Wills, 652; Hawkins V. Johnston, 24 Ga. 102. Wills, 43; i Wash. 53; Fleming v. Where " all my worldly goods," etc. Boiling, 3 Call, 75. are given, " likewise my house and lot," * Wade-Gery v. Handley, i Ch. D. this does not carry other real estate 653; 3 ib. 374. owned by the testator, but not other- * Bective v. Hodgson, 10 H. L. 656. wise mentioned or referred to. Parish ' Wyndham v. Wyndham, 3 Bro. C. C. J/. Cook,. 78 Mo. 212. But as between 58; 4ib. 144; Hawkins Wills, 44. a specific devise of re4 estate and a 555 § 524 LAW OF WILLS. [PART VI. rents, and profits, which accrue during the suspense of vest- ing, descend as estate undisposed of ; thus affording another instance in which the heir-at-law is favored in construction above the beneficiaries named in the will ; ^ for the residuary legatee of personalty took what the law withheld in a corre- sponding case from the residuary devisee. Thus, if real estate is given to the use of an unborn person or in trust for him, and the will does not dispose of rents and profits in the meantime, they do not accumulate, but descend to the heir-at-law.2 But once more, if the testator's residuary real and personal estate are blended in one gift, though contingent and future in terms, ,the will applicable to personalty is presumed to have been intended for both, and intermediate rents and profits of real estate are carried as well as the income of the personal estate.^ And a residuary clause plainly expressed with re- spect to income will control, as it would appear, in any case.* Where there is not a postponed or contingent gift of the residue, but a particular interest to commence in future in a fund already constituted, it would appear that intermediate income is not carried either of real or personal estate.^ § 524. Residuary Bequest or Devise as to Gift of Proceeds of Sale, of Reversionary Interests, etc. — Gifts of the proceeds of real estate directed by the will to be sold, and gifts of money charged on land, like devises of land, do not, prima facie, fall into the residue, upon lapse, unless local legislation 1 Genery v. Fitzgerald, Jac. 468; personal estate in the gift, and not a Hopkins o. Hopkins, Ca. t. Talb. 44; mere reference. Hodgson v. Bective, I Atk. 580 (where it is reported imper- i H. & M. 397. fectly) and cited Hawkins Wills, Appx. * i Jarm. 652; Duffield ». DufSeld, 3 i; I Jarm. Wills, 652; Hawkins Wills, Bli. N. S. 621. See Lord Brougham in 45. Ackers v. Phipps, 6 CI. & F. 691, criti- ^ Hopkins v. Hopkins, supra. See cised. Hawkins Wills, 46 & Appx. i. § 503. Stat. I Vict. c. 26, § 24, does not ' Genery v. Fitzgerald, Jac. 468 ; affect the question regarding intermedi- Ackers o. Phipps, 3 CI. & F. 691; Rog- ate income of residuary real estate. I ers v. Ross, 4 Johns. Ch. 397; Hawkins Jarm. 653. Wills, 45; I Jarm. Wills. 653. But by « Weatherall v. Thornburgh, 8 Ch, D. this is meant a blending of real and 261; L. R. 20 Eq. 255. SS6 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 525 changes the rule.^ But this rule yields to a clear direction in the will which shows a contrary intent.^ Where executors are directed to manage a certain farm and apply its revenues for the support and benefit of persons named, the latter have no vested right to the personal property on the farm.^ As to reversions, we may add, the modern rule which extends the scope of a devise to after-acquired lands, favors a more liberal treatment of such undisposed-of interests than formerly ; and in general, a residuary devise or bequest will now, without distinction of real or personal estate, include every reversionary interest which remains undisposed of by the previous gifts in the will, whether the same be a rever- sion remaining after an interest created by the will or not.* This rule does not take effect, however, where upon the whole will, it appears that the testator not only foresaw what would happen, but intended to dispose differently ; ^ and not to enter into a close comparison of discrepant authorities, we may leave each will to serve as its own criterion with this brief statement of modern maxims. § 525. Devises and Bequests in Ezecution of Powers. — To speak finally of devises or bequests as operating by way of appointment or in execution of some power which is vested in the testator, the earlier rule of construction has been that devises and bequests prima facie do not include prop- erty which was not the testator's own but of which he had a power to dispose ; or, in other words, that an apparent gift of such property by the testament is not enough without clearer marks of his intention to execute the power in ques- tion.^ But a distinct description of the property embraced 1 Amb. 643; I V. & B. 410; Arnold v. Shattuck, 10 Pick. 306 ; Brattle V. Chapman, i Ves. Sen. 108; Hawkins Square Church v. Grant, 3 Gray, 142; Wills, 47; supra, § 521. 4 Kent Com. 10; 3 Bradf. (N. Y.) 73; 2 lb.; Durour v, Motteux, I Ves. Sen. Youngs v. Youngs, 45 N. Y. 258; Har- 320; Hephinstall v. Gott, 2 J. & H. 450. per v. Blean, 3 Watts, 473. » Beirne v. Beirne, 33 W. Va. 663. '^ 3 Sandf. (N. Y.) 96; Johnson v. * I Jarm. Wills, 654-663, and cases Stanton, 30 Conn. 301 ; Hawkins Wills, cited /awjOT/ Church v. Mundy, 12 47, note by Swords. Ves. 426; Glover v. Spendlove, 4 Bro. » 6 Co. 17 b; Andrews v. Emmot, 2 C. C. (Perkins's ed.) 2^8,'«ote; Brigham Bro. C. C. 297; Hougham v. Sandys, 2 557 § 526 LAW OF WILLS. [PART VI. under the power is lield to manifest sufficiently one's inten- tion to execute it by the testamentary gift.^ And if a testator should devise '-'all his lands " or "all his lands in A," and no real estate of his own answered the description, lands over which he had only a power might pass by the devise, rather than leave the whole disposition nugatory. ^ § 526. The Same Subject. — The Statute of Victoria shifts this presumption, or rather, so far as general powers are con- cerned ; for a special power to appoint, or a power limited to a particular class of objects, is left as before. And the pres- ent rule of construction is accordingly that general devises of real estate and bequests of personal estate which are gener- ally described will be presumed to include real or personal estate which the testator may have power to appoint gener- ally, unless the will discloses a contrary intention.^ Ameri- can statutes establish this rule with some local variations for this country ; and the inclination now appears in our leading States to regard a general devise or bequest as operating prima facie in execution of whatever general power of dis- posal may be vested in the testator.* Independently, indeed, of legislation, the general tendency in the United States has been to treat the presumption against intending to execute a power as one of no great force, whether with regard to a Sim. 95; Hawkins Wills, 22; 1 Jann. » Stat. I Vict. c. 26, § 27, which, it is Wills, 676-682; I Atk. 559. Thus, a observed, speaks of general real and gift of " all my real estate " or " all my personal property which the testator personal estate " will not include real has power to appoint " in any manner or personal estate settled on the testator he may think proper." i Jarm. Wills, for life, with remainder as he should by 682; Hawkins Wills, 27. A power is deed or will appoint, etc. general under this act, though capable 1 David's Trusts Re, I Johns. (Eng.) of being executed by will only. 24 495; Hawkins Wills, 23. Beav. 403; 3 Sm. & Gif. 303. And see 2 I Jarm. Wills, 676; I Sugd. Pow. Wilkinson .ffe, L. R. 4 Ch. 588; Boyes 916, 8th Ed.; Hawkins Wills, 24; Denn 0. Cook, 14 Ch. D. 52; § 519, note. V. Roake, 6 Bing. 475; Standen ». * Hawkins Wills, 27, and Sword's Standen, 2 Yes. Jr. 589. The burden is note; i Jarm. Wills, 676, and Bigelow's on the party claiming an appointment note; Amory v. Meredith, 7 Allen, by will to show that the testator had no 397; White v. Hicks, 33 N. Y. 383; i other real estate when the will was Bradf. (N. Y.) 114; Andrews w. Brum- made. Caldecott v. Johnson, 7 M. & field, 32 Miss. 108; 4 Kent Com. 334, Gr. 1047. , , 335. 558 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. §$27 devise or bequest ; since this might be overcome by some re- ference in the will to the power, or by some reference to the property which was subject to the power, or where the pro- vision of the will could not otherwise take effect ; or wherever else the interpretation of the will under all the circumstances showed that the testator probably had it in view to execute the power.^ But a mere residuary clause would not thus operate; 2 and wherever the circumstances are open to inquiry in a doubtful case, the rule has been that the circum- stances as existing when the will was made furnish the only criterion of intent, and that matters subsequent cannot be considered.^ § 527- Correction of Errors in describing Property. — That moulding of language of which we have spoken,* in order to further a testator's obvious intention, is preserved within prudent limits where a misdescription of what is given appears. Thus, for the sake of correcting what is manifestly a clerical error, and giving a sensible meaning to what would otherwise be absurd, " rent and personal " property has been read "real and personal."^ But to enlarge the phrase "the rest of my estate personal " to " the rest of my estate real and personal " is beyond the power of the court ; ^ for this would be too much like making a will for the testator, a prac^ tice which might lead to intolerable abuse. 1 See this subject ably discussed by ence while the testator was alive. 32 Story,J.,inBlagge?'.Miles, iStory,426; Beav. 31. We have already seen that 4 Kent Com. 334, 335. The avowal wills executed under a power are de- in the will of an intent to execute a. prived of all peculiarities of execution power is itself an execution of it with- under the Statute of Victoria. Supra, out any express declaration. Blake v. § 299; Stat, i Vict. c. 26, § 10. Hawkins, 8 Otto, 315. * Supra, ^ /^TJ. 2 Amory v. Meredith, 7 Allen, 397; « Baird v. Boucher, 60 Miss. 326. Blagge V. Miles, supra ; Hawkins Wills, And so in other cases of the kind 22. provided the proper correction can be * Boyes v. Cook, 14 Ch. D. 52. Cf. gathered from the context. Northern's Funk V. Eggleston, 92 111. 515. Estate Re, 28 Ch. D. 153; c. z,post. Under the English act a will may « Graham v. Graham, 23 W. Va. 36. operate as executing a power subse- Not even though the codicil recited that quently created. I Jarm. 676, Bigelow's the testator had by his will disposed of note; Boyes v. QjooV, supra. But not his "estate real and personal," would powers which do not come into exist- the court make the change. 559 § 529 LAW OF WILLS. [PART VI. § 528. Object of Gift next to be considered. — Next to the description of the gift itself in testamentary construction let us consider the person or persons who may be the object of the gift. Of personal incapacity to take under a will we have already discoursed in general : applying the doctrine to aliens, subscribing witnesses to the will, corporations, infants, insane persons, those under coverture, and the like, and have concluded most of these quite capable of becoming devisees and legatees.^ Uncertainty, whether in the gift or the object of the gift, or the interest given, we shall consider at some length hereafter.2 But let us now lay down some leading principles of construction applicable to the objects of gift by testament. § 529. Gift to Children, etc., as a Class, how treated. — And first, to speak of children, grandchildren, or other near rela- tives to some person of a given class. Our law, instead of sup- posing that a gift to objects thus brought together, should include naturally all of that class who may fulfil the descrip- tion at any time, presumes rather that the testator intended the class to be ascertained upon his death, and neither earlier nor later. Hence a devise or bequest to the children of A, or of the testator, means prima facie to those of that class in existence at the testator's death, provided there be any at all to answer that description ; ^ and this rule extends to grand- children, issue, brothers, nephews, and cousins.* Nor is this presumption to be varied, whether an aggregate sum, like ^5000, be given to the class, — as i^Sooo, to the children (or grandchildren, or brothers, etc.) of A, — or a certain sum to each member of the class, as to the children (or grandchildren. 1 Supra, §§ 23-27. But as to our Worcester, loi Mass. 132; 2 Jarm. modern policy unfavorable to subscrib- Wills, 154, 156, and Bigelow's note, ing witnesses in this respect, see further, * lb.; Baldwin v. Rogers, 3 D. M. & § 357. G. 649; Myers v. Myers, 3 McCord 2 C. 3, post. Ch. 214; State v. Raughley, 1 Houst. 8 Viner w. Francis, 2 Cox, 190; Kay, 561; next note; Smith v. Ashurst, 34 638; Hawkins Wills, 68; Jenkins v. Ala. 210; Whall i/. Converse, 146 Mass. Freyer, 4 Paige, 47; Downing v. Mar- 345; § 563. shall, 23 N. Y. 373; Worcester v. 560 CHAP. II.] DETAILS OF. TESTAMENTARY CONSTRUCTION. §5^9 or brothers, etc.) of A, ^looo each.^ And such devise or bequest being to a fluctuating class of persons, the decease of any of them in the testator's lifetime will occasion no lapse in the disposition.^ As we shall presently see, it is an imme- diate gift, or one to take effect in possession upon the tes- tator's death, to which this maxim most properly applies. This rule of construction as to the class of children or near relatives will apply even though words of additional descrip- tion are used ; ^ but if the description be such as narrows the gift to persons individually specified, and now living, — as in the gift to the children of A, namely, B, C, and D,* — or, on the other hand, extends it to those of that class who may be bom and begotten after the testator's death, — as in the gift " to all grandchildren now born or to bie hereafter born during the lifetime of their respective parents," ^ — the mani- fest intendment of the will takes effect accordingly. But such exceptions only arise upon sensible grounds of infer- ence, and a doubtful expression in one part of the will may be cleared or corrected by reference to what the instrument imports in other parts, and taken as a whole.® In short the disposition is to regard all testamentary gifts to members of a class consisting of children, grandchildren, issue, brothers, nephews, or cousins, as intending prima facie 1 Mann v. Thompson, Kay, 638. See Price, 16 Ohio St. 32. As, for instance, also Chasmar v. Bucken, 37 N. J. Eq. "to the five children of A." Smith's 415; Robinson v. McDiarmid, 87 N.C. Trusts Re, 9 Ch. D. 117. 455. ' Scott V. Lord Scarborough, i Beav. i' 19 Barb. 494. 154. 8 Examples are afforded in Hawkins ^ So may the gift of A, the testator, Wills, 68, 69. As, if the gift be to the be to children living at the decease of children "of the late A," a person dead B; here the event of B's death might at the date of the will, or to the " present be before or after that of the testator, born children of A." Leigh v. Leigh, 2 Jarm. Wills, 158. 17 Beav. 605. And see Lee z/. Pain, 4 Limitation to "every other son or Hare, 250; Paul v. Compton, 8 Ves. sons " is construed to exclude the eldest 375; Kay, 638. son. Locke v. Dunlop, 39 Ch. D. 387. * Bain v. Lescher, 11 Sim. 397; Wil- "To be begotten" may, if so intended, liams V. Neff; 52 Penn. St. 333; Morse refer to futurity. lb. V. Mason, 11 Allen, 36; L. R. 8 Eq. 52. Ordinarily a devise to sons- by name So with other expressions which show is not a gift to a class. Church v. that only relatives now living are con- Church, 15 R. I. 138. templated. 2 Jarm. 155; Starling ». S61 § 530 LAW OF WILLS. [PART VI. that class as it may exist at the testator's death, whether the effect be to reduce or extend the number of individual bene- ficiaries entitled to the fund.^ §530. The Same Subject. — Notwithstanding the above rule, the judicial disposition is to let in subsequent issue and near relations of a class as generously as possible where the terms of the will justify a distinction. That distinction is found when the aggregate fund to the class is not distribu- table at once, and the question who shall compose the class may conveniently be postponed ; or, in .general, where the total amount of the gift does not depend upon the number of participants admitted to share it. Hence the English rule, confirmed by many American precedents, that the devise or bequest of a corpus or aggregate fund to children as a class, where the gift is not immediate, vests in all the children in existence at the testator's death, but so as to open and let in children who may come into existence afterwards at any time before the fund is distributable.^ And this rule of construc- tion, like the former one, extends its favor to grandchildren, issue, brothers, nephews, and cousins.^ Thus if property, real or personal, be given by will to A for life, and after his decease to the children of B, all of B's children who are alive at the death of the testator take vested interests, which may be partially divested to let in those after-born during the life of A ; and so correspondingly, when the property is tied up from distribution for ten, fifteen, or twenty years ; the effect of which is to make the fund distributable ultimately among the children (or grandchildren, brothers, etc., as the devise or bequest may be) who belong to the class at the 1 Schaffer v. Kettell, 14 Allen, 528; 167, and Bigelow's note; Ayton v. Ay- Hawkins Wills, 69, 70, Sword's note, ton, i Cox, 327; Moore v. Dimond, 5 Thus, the idea of a class may be the R. I. 129; Hill v. Rockingham Bank, leading one in the will, notwithstanding 46 N. H. 270; Hall v. Hall, 123 Mass. an enumeration of the persons who con- 120; i McCart. 167; Ross w. Drake, 37 stituted the class at the date of its exe- Penn. St. 375; 143 Mass. 237; 103 N.Y. cution. Springer v. Congleton, 30 Ga. 453; 72 Md. 67; Tayloe v. Mosher, 29 977- Md. 445; 37 Miss. 65; Cooper v. Hep- 2 Devisme w. Mello, i Bro. C.C.S37; burn, 15 Gratt. 558; 38 111. 206. 2 Madd. 129; Hawkins Wills, 71, 72, » Hawkins Wills, 72; Baldwin v. and Sword's note; 2 Jarm. Wills, 156- Rogers, 3 D. M. & G. 649. 562 CHAP. 11.] DETAILS OF TESTAMENTARY CONSTRUCTION. § S3 1 period of distribution, and the representatives of such as may- have died meanwhile after surviving the testator.^ All limi- tations future in enjoyment and not immediate appear to come within scope of this maxim.^ But this enlarged rule of construction does not operate where the postponement of distribution is that merely which the law fixes for convenience in paying debts, and winding up an estate in the usual process of settlement ; ^ nor where the aggregate gift is necessarily increased by the number of participants, instead of being a fund whose total amount is to be shared among more or fewer individuals of a class ; * nor to speak generally, when such a rule would not consist with a fair and just interpretation of the particular will. § 531. The Same Subject. — Another rule of presumption in this connection is, that where an aggregate fund is given to children as a class, and the share of each child is made payable on attaining a given age, or on marriage, the period of distribution is the time when the first child takes his share, and those born later are excluded ; ^ and the same holds good apparently of gifts to grandchildren, or to near relatives of the other classes already considered.^ This is a rule which supplies but does not conflict with our former maxims ; the difference being that there we supposed all 1 10 Hare, 441. the case where postponement of one or ^ The rule of the text applies to gifts two years took place under the general in the nature of powers or in execution rules of settlement and distribution, and of powers. Hawkins Wills, 72; 8 Ves. that where the testator expressly directs 375; 2 Jarm. 57, note. It extends also postponement for one or two years, to the case where the testator does not 2 Strobh. Eq. i. create the life estate, but has only a * Hawkins Wills, 73; Ringrose v. reversionary interest expectant upon a Bramham, 2 Cox, 384. previous life estate, of which his will ° Hawkins Wills, 76; 2 Jarm. Wills, disposes. Hawkins Wills, 74; 2 Jarm. 160; Andrews W.Partington, 3 Bro. C.C. 157; 15 Ves. 122. But as to the gift 403; 3 K. & J. 48; Whitbread v. Lord of a fund, part of which is reversionary, St. John, 10 Ves. 152; Hubbard v. Lloyd, and part is not, see Hawkins Wills, 75, 6 Cush. 523; Tucker v. Bishop, 16 N. Y. and cases cited. The rule applies where 404; 2 Rawle; 275; 5 Jones Eq. 44, the prior estate determines by bank- 208; Dawson v. Oliver-Massey, 2 Ch. ruptcy. L. R. 16 Eq. 590. D. 753. ' Hagger v. Payne, 23 Beav. 479. « Iredell v. Iredell, 25 Beav. 485. Hence might arise a distinction between See L. R. 12 Eq. 431, ^er Malins V.G 563 § 532 LAW OF WILLS. [PART VI. shares payable at one and the same period of distribution, whether postponed or immediate, while here they become payable at different times ; and the question is, who besides those Hving at the testator's death shall be embraced under the gift. This rule of presumption appears to apply wherever the share of each one of the class is made to depend upon some event or alternative personal to the individual ; as if the gift be made to A's children, the share of each to be paid on attaining twenty-one, or on death under that age leaving issue, or on marriage under that age; and the first one reaching twenty-one, or dying with issue, or marrying earlier, no after- born child will be let in.^ Nor do words of mere futurity (such as "born, or to be born ") affect this construction ;2 unless in- deed the intent disclosed by the context should be plainly to the contrary ; for if the testator should direct a distribution to await the majority of the youngest child, or some event personal to the latest member of the class, the postpone- ment of payment would keep the class open correspondingly to let in the after-born,^ since the inconvenient delay which our presumption would remove cannot in such a case be avoided. Should any one of the class attain the age in the testator's lifetime, no after-born child usually can be let in at all.* § 532. The Same Subject. — If no members of the class described as children in a will are in existence at the testa- tor's death, after-born children will be let in by inference 1 Hawkins Wills, 76; 6 Ves. 344; sumptions as to members of a class yield Dawson v. Oliver-Massey, 2 Ch. D. of course to tlie context and general 753; 2 Jarm. Wills, 162. purpose of the will. If the testator gives 2 10 Ves. 152; Iredell v. Iredell, 25 to children (or grandchildren, etc.) Beav. 485. " now living," he means those only who ' Wainwaring v. Beevor, 8 Hare, 44; are in esse when the will is made; if to 3D. M. G. 366; Armitage v. Williams, those living "when B dies," or upon 27 Beav. 346. the happening of some specified event, ■» Picken v. Matthews, 10 Ch. D. 264. that event might happen before or after The construction of the foregoing the testator's own decease, and establish rules is not often varied, even though the members of the class accordingly; it should lead to remoteness. 2 Jarm. while if to specified individuals of a Wills, 162. And see the English cases class, those individuals, and no others, further compared, ib. 162-167. All pre- constitute the class. 564 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 533 even though the devise or bequest be immediate, rather than let the gift lapse altogether ; ^ though not where this would violate the plain purpose of the will.^ As for words of futurity contained in the gift — as to the children "born and to be born," "begotten and to be begot- ten," "which A has or shall have" — the effect is not clearly- settled. By some expression quite distinct, the testator may doubtless embrace such as happen to be born after the period of distribution ; ^ but English authorities appear disinclined to give this inconvenient effect of postponing to phrases like the foregoing ; * while in this country a disposition is fre- quently shown by the courts to let in after-born children wherever words of futurity are used.^ At all events, wherever "children" are to be ascertained at a given period under any of the foregoing rules of con- struction, the class will beneficially include a child then en ventre and born afterwards;^ for the potential existence of such a child brings it within the just and natural sense of such a gift. And under a parent's will, more especially, all one's own children, present-born or posthumous, may well be presumed, in American policy, as included.'^ § 533- "Words describing Object of Gift; " Children," "Grand- children." — Words descriptive of the objects of a gift, and 1 Harris W.Lloyd, T.& R. 310; Haw- ience of postponing a distribution is kins Wills, 71 ; 2 Jarm. Wills, 167; Amb. avoided by taking refunding bonds from 448. the existing distributees. Hawkins, 71, 2 lb. Sword's note. 8 Scott V. Lord Scarborough, I Beav. « Tower v. Butts, I S. & Stu. 181 ; 2 154. H. Bl. 399; Jenkins z/. Freyer, 4 Paige, * lb.; 10 Ves. 154. The point is not 47; Hall v. Hancock, 15 Pick. 258; 2 perhaps quite settled. Hawkins Wills, Dev. & B. Eq. 308; Meigs, 149; Swift 71, 74. And see 2 Jarm. Wills, 179- v. Duffield, 5 S. & R. 38; Hawkins 184, and cases cited. Mr. Jarman con- Wills, 79; 2 Jarm. Wills, 185, Bigelow's siders that, except where distribution note; Starling w. Price, 16 Ohio St. 29; would be postponed in consequence, Crook v. Hall, L. R. 6 H. L. 265 (this the words " to be born," or " to be be- last referring to illegitimate children), gotten," etc., in an immediate gift will When the testator uses particular Ian- extend it to all the children who shall guage, his intention shall govern, upon ever come into existence. lb.; iMer.654. a due interpretation of the will. Emery 6 Hawkins Wills, 71, and Sword's Re, 3 Ch. D. 300; Starling v. Price, note; Yeaton v. Roberts, 8 Post. 459; supra. 3 Jones Eq. 491 ; Butterfield v. Haskins, ' Meares v. Meares, 4 Ired. L. 192; 33 Me. 392. The practical inconven- supra, § 480. § 533 LAW OF WILLS. [pART VI. more particularly of classes of objects, deserve our notice. And first, of " children," we may observe that the popular and legal sense of the word are in accord. A gift to the "children" of a person means, therefore, one's immediate offspring, and does not extend to " grandchildren '' ; ^ while " grandchildren," in like manner, is confined to the immediate offspring of offspring, and does not embrace " great-grand- children." ^ Such rules are but presumptive, however, and they yield of course to a contrary intention as gathered from the context ; as where, for instance, such explanatory words as " legal heirs " or " who may be the surviving heirs of the body " are added or interchanged, and effect is best given to the whole disposition by supposing " children " synony- mous with issue of descendants in general.^ And other words of more extended meaning than " children " or " grand- children " simply may enlarge the usual scope of such lan- guage,* as likewise the peculiar expression of the gift ; as for instance to "children except A" (A being a grandchild);^ or, as some cases have held, where in another part of the will the word " child " is distinctly applied to a grandchild, or "grandchild " to a great-grandchild.® Some have claimed that a ground is laid for construing " children " of A to include grandchildren or descendants where there was no child living at the date of the will.'' But 1 Radcliffe v. Buckley, lo Ves. 195; Server v. Brendt, 10 Penn. St. 213; 73 Clifford V. Koe, 5 App. Cas. 447; 3 De Cal. 594. G. & J. 252; I Jarm. Wills, 147; Haw- * Prowitt v. Rodman, 37 N. Y. 58; kins Wills, 85; Thomson v. Ludington, Hughes v. Hughes, 12 B. Mon. 115. 104 Mass. 193; 3 Wall. jr. 32; Osgood ' Pemberton v. Parke, 5 Binn. 606; 2 V. Lovering, 33 Me. 469; 3 Comst. 540; Duv. 334. In a few American States, the Low V. Harmony, 72 N. Y. 408; 2 Mc- enlarged sense of " children," whether Cart. Ch. 198; Castner's Appeal, 88 as including "grandchildren," or de- Penn. St. 478; 19 Gratt. 327; Turner scendants in every degree, is favored by V. Withers, 23 Md. 18; U. S. Dig. ist local legislation. Hawkins Wills, 85, Series, "Wills," 1858; Pugh i/. Pugh, Sword's note. " Children " is primarily 105 Ind. 552. a word of purchase, but it may be a 2 Orford v. Churchill, 3 V. & B. 59; word of limitation, and include descend- Hawkins, 85; 2 Jarm. 150; Hone v. ants. 2 Jarm. 147, Bigelow's note. Van Shaick, 3 Comst. 540; Dooling v. ^ Hussey v. Berkeley, 2 Ed. 194; Hobbs, 5 Harring. 405. Amb. 603. ' Houghton V. Kendall, 7 Allen, 72; '2 Jarm. Wills, 147; Hawkins Wills, 85; Smith Ke, 35 Ch. D. 558. 566 CHAP. II. J DETAILS OF TESTAMENTARY CONSTRUCTION. § 534 if A was then living and capable of having children after- wards, the proper sense of the word is not changed,^ though it might well be if A were dead when the will was made and the testator knew that grandchildren but no child survived him.2 In other words, a strong argument arises in favor of the unusual and more extensive sense, when otherwise the testator's gift could never have had an object, and he must have known it.^ It would seem, however, more natural on the whole to give to " children," if not the precise and natural meaning, a loose one, as extending to issue or desceiidants collectively, with a right of representation, rather than "grand- children " only. And the rule, in brief, is to take the word " children " in its literal sense unless the meaning is clearly a wider one in the particular case, or on the other hand the gift means nothing at all, circumstances outside the will not being taken into consideration. Where the testator names the children in his bequest to them, still less should the grandchild be admitted to share, whose parent died before the will was executed.* § 534. The Same Subject. — By " children," whether of the testator or some other person, a will is generally understood to denote all of the blood offspring, whether by one marriage or more.^ But children by affinity, such as a son's widow, are frima facie excluded ; ^ and so are step-children.'^ Nor are illegitimate children presumed to be included ; for public policy aids the constant interpretation of the courts that a gift to "children" means, on the face of it, to legitimate children only ; * into which class local legislation, however, 1 Moor V. Raisbeck, I2 Sim. 123; 10 ' 3 Barb. Ch. 466, 475; Cutter v. Ves. 198. Doughty, 23 Wend. 513; Sydnor v. 2 Berry v. Berry, 3 Giff. 134; 2 Vern. Palmer, 29 Wis. 226; 108 Mass. 382; 50. I Bradf. 252. 8 Fenn v. Death, 23 Beav. 73; 2 * The rule of the text applies to gifts Jarm. 148. to "issue" and terms of relationship 4 McMichael v. Pye, 75 Ga. 189. generally. See Kenebel v. Scrafton, 2 6 2 Jarm. Wills, 151; Isaac v. Hughes, East, 530; Ellis v. Houstoun, 10 Ch. D. L. R. 9 Eq. 191; I J. & H. 389; Bar- 236; Schoul. Dom. Rel. § 281; Wilkin- rington v. Tristram, 6 Ves. 345. son v. Adam, i V. & B. 422; Hawkins sHussey v. Berkeley, 2 Ed, 194; Wills, 80; j»/>ra,§ 481; Appel i/.Byers, 2 Jarm. 151. 98 Penn. St. 479; 2 Jarm. Wills, 217; §534 LAW OF WILLS. [part vr. may fairly bring those legitimized by the subsequent marriage of their parents. ^ Where illegitimacy results from the par- ent's honest error in contracting a marriage which turns out void, the status of children should be tenderly treated in con- struction, if possible.^ But context or surrounding circumstances may defeat, as before, whatever presumption would naturally have arisen ; so that under a gift, children may be restrained to those of some particular marriage, on the one hand,^ and on the other, enlarge so as to include children by affinity, or step-children, or adopted or even illegitimate children ; * provided the con- text shows a corresponding intention in terms or leaves the alternative of a gift which never could have had an object. Of illegitimate children, whose stigma is certainly their mis- fortune, not their fault, whether born of parents who were Kent V. Barker, 2 Gray, 535; 14 N. J. Eq. 159. " The question comes round to this," says Lord Eldon, "whether upon the contents of this will it is pos- sible to say he could mean, at the time of making that will, any but illegitimate children." Wilkinson v. Adam, I V. & B. 461, 468; Hawkins, 80. But see as to the offspring of a marriage supposed legal. Crook v. Hill, L. R. Q. Ch. 311. ' This is an American and civil mod- ification of the English common law, which is still stubborn against giving a status to those whose misfortune and the sin of their parents caused them to be born out of wedlock. Schoul. Dom. Rel. §§ 226, 227; Miller's Appeal, 52 Penn.St. 113. Whether an adopted child would be included with " children " under a vrill, is a novel question growing out of a policy new to Anglo-Saxon institutions; It is held that such children are not prima /? intended. Schafer z/. Eneu, 54 Penn. St. 304. Cf. Johnsoii's Appeal, 88 Penn. St. .346. And see Russell v. Russell, 84 Ala. 48. But the criterion must be found in the language of. the local statutes rela- tive to adoption. See Schoul. Dom. Rel. 3d ed. § 232. One might perhaps 568 be decided a " child " under the will ai the adopting parent more readily than where the gift was from some other tes- tator. Barnhizel v. Ferrell, 47 Ind. 335. But see as to " heir of body," Sewall v. Roberts, 115 Mass. 262. And see Ingram V. Southern, L. R. 7 H. L. 408. 2 See Elliott v. Elliott, 117 Ind. 380, where the testator's wife, who bore him children and lived with him uhtil his death, was ignorant that he had aban- doned a former wife abroad and left a child by her surviving him. ' 2 Jarm. Wills, 152. * 2 Jarm. Wills, 217; Drummond v. Leigh, 30 Ch. -D. no; Stewart v. Stew- art, 31 N. J. Eq. 398. Thus, where the gift is to the -children of a person known to be dead at the date of the will. 2 Mer. 419; Gill V. Shelley, 2 R. & My. 336. Or semble to the children of a woman known to be beyond the age of child- bearing. But see i Sm. & G. 362. Or the: gift, is to " children," and there is but one legitimate child. Gill v. Shelley, supra. Or where the illegitimate chil- dren were identified by the gift as indi- viduals entitled to share. 2 Hare, 282; Hawkins Wills, 82, 83; 1 P. Wms. 529; 2 Jarm. Wills, 217. CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 534 guilty or innocent, we may add that courts at this day waver somewhat in applying the standard of construction ; pitying, oftener than formerly, as they must, the lot of the outcast, and finding in the local policy, as they often may, some alleviation of the ancient hardships which attached to the bastard.^ 1 The old rule is thus expressed : " Qui ex damnato coitu nascuntur, inter liberos non computentur." 3Anst. 684; 2jarm. 217. But while loose and conjectural expressions afford no ground for admit- ting illegitimate children to gifts under a will, the true point of inquiry is whether, according to a true interpreta- tion of the will, the testator meant to make such persons the objects of his bounty. 2 Jarm. 217; Schoul. Dom. Rel. § 281. Where the illegitimate child is sufficiently described or necessarily im- plied by the terms of the gift, such child will take. Drummond v. Leigh, 30 Ch. D. 1 10, commenting upon, earlier Eng- lish cases; Wilkinson v, Adam, i Ves. & B. 422; Gardner v, Heyer, 2 Paige, II; 37 Ch. D. 695. Both in England and the United States an express gift to the unborn natural child of a woman then pregnant may take effect. Crook V. Hill, 3 Ch. D. 773; L. R. 6 H. L. 265; Knye v. Moore, 5 Harr. & J. lo; Schoul. Dom. Rel. § 281. But a gift to an ille- gitimate child or children not yet begot- ten is obnoxious to the policy of the law in this country, probably, as it is in England. Holt v. Sindrey, L. R. 7 Eq. 170; Schoul. Dom. Rel. § 281. And yet a provision for future illegitimate children in esse at : testator's death is upheld in the latest English cases. 35 Ch. D. 728. A common description of " children," however, does not, as a rule, let in those who are illegitimate and so reputed; for even if there were none legitimate when the will was made, the testator may be supposed to refer to the future birth of such; and public policy appears lo support this construction, if possible, even though spurious offspring survive the testator, and no legitimate child were born. Durrant v. Friend, 5 De G. & S. 343; Hall Ee, 35 Ch. D. 551. Such is the disfavor of the law, that the mere absence of other objects does not let in a bastard. Mr. Jarman submits this test from the English cases, that in order to let in illegitimate children, under a gift to children, the will, as applied to the state of facts existing when it was made, must make it clear that legitimate chil- dren never could have taken, or that its terms, when so applied, could never have taken effect if confined to legiti- mate children. 2 Jarm. 234. But he admits reluctantly that this principle has not been invariably followed. lb. Extrinsic evidence is only admissible to show that illegitimate ■ children h&ve at the date of the instrument acquired the reputation of being legitimate, or that only illegitimate children fulfilled the description either when the will was made or when the testator died. 2 Jarm. 217, Bigelow's note; Wilkin- son V. Adam, supra; Gardner v. Heyer, 2 Paige, II. Some have laid it down that legitimacy being a question not of reputation, but of fact, a child after- wards discovered to be illegitimate, even though passing as legitimate when the will was made, cannot share in a gift to children. Hawkins Wills, 80. It seems fair, however, that, if the testator was neither guilty nor deceived about a child reputed as his own when the will was made, but the gift stands to the reputed child or children of another person, it ought not to fail of effect merely because such child or children prove afterwards illegitimate. See Dane v. Walker, 109 Mass. 179. 569 §535 LAW OF WILLS. [part VL § 535- " Issue," " Descendants," etc., as Objects of a Gift. — A gift to " issue," as a phrase of law, imports prima facie descendants of every degree from the common ancestor, in- cluding children and those more remote;^ nor does the addition of the words " begotten by A " restrict this sense necessarily.2 But where the " parent " of such issue is asso- ciated in the context, the language imports^ratherthat children alone were intended ; ^ and this narrower but more popular meaning may arise from other turns of expression defining the character of a gift ; * though the whole tenor of the will must determine each decision.* A devise of real estate or a bequest of personalty appears to follow the same rule in this respect;^ for in a will "issue" is not so rigid an expression as it would be in a deed or grant. As for " descendants," this word cannot in a will be con- strued to include any but lineal heirs, without clear indications in the will of a different purpose. '^ But children, grandchil- dren and their children to the remotest degree are thus com- 1 Davenport ■v. Hanbury, 3 Ves. 258; 19 Md. 197; Hawkins Wills, 86; 2 Jarm. loi, and Bigelow's note; 2 Wins. Exrs. 1196; 17 N.J. Eq. 475; Taylor z/. Taylor, 63 Penn. St. 48 1; Maxwell v. Call, 2 Marsh, 1 19. An adopted child may be included as " issue." Sewall 7;. Roberts, 115 Mass. 262. An adopted child is not " issue." 64 N. H. 407. In a limitation to " issue or children," the word " issue " enlarges its scope. Hall v. Hall, 140 Mass. 267. An indefinite failure of issue is favored in construction in 119 Penn. St. 108. 2 Evans v. Jones, 2 Coll. 516; 17 N. J. Eq. 475. 8 Sibley v. Perry, 7 Ves. 522 ; Bar- stow V. Goodwin, 2 Bradf. 416; Pruen V. Osborne, 11 Sim. 132; i Demarest, 217; 74 Penn. St. 173; King v. Savage, 121 Mass. 303; McPherson !». Snowdon, 19 Md. 197. The rule applies to either a devise or bequest. 19 Beav. 417; Hawkins, 88. The word "chUdren" may be enlarged to " issue " where the two terms are interchanged in a will. 2 Jarm. 107; Amb. 555; supra, § 533; 5 Munf. 440. * Fairchild w. Bushell, 32 Beav. 158; Duncan v. Harper, 4 S. C. 76; Palmer v. Dunham, 125 N. Y. 68. * Where a gift is to nephews, their "issue" to take the parent's legacy, " issue " means properly descendants taking by right of representation. 152 Mass. 67. " 2 Jarm. Wills, 102; Cook v. Cook, 2 Vern. 545; King v. Savage, 121 Mass. 303. A devise to " male issue " includes all male lineal descendants. Wistar v. Scott, 105 Penn. St. 200. ' Baker v. Baker, 8 Gray, loi ; Bar- stow V. Goodwin, 2 Bradf. 413 ; Van Beuren v. Dash, 30 N. Y. 393. Thus, a sister's child is not a " descendant " of the testator. 1 Bradf. 314. Nor col- lateral relatives generally. For a pecu- liar meaning under the Georgia statutes, see 25 Ga. 420. S70 CHAP. 11.] DETAILS OF TESTAMENTARY CONSTRUCTION. § S36 prehended.i " Descendants " like " issue " is a very geheral word, but competent authorities pronounce it less flexible than " issue " in construction, requiring a stronger context to confine it to children.^ § S36. Collateral Relatives as Objects of a Gift. — Now as to the words which denote collateral relatives as objects of a gift. By "brothers," "sisters," and even "nephews" or "nieces," \?, prima facie meant not those of the whole blood alone, but half-brothers and half-sisters, or children of a half- brother or half-sister ; 3 and so with the more remote kindred. For the policy of our law to admit general kindred of the whole-blood and half-blood equally to the inheritance when of the same degree is deeply graven in modern legislation.* Notwithstanding the equivocal sense of nepos in Roman jurisprudence, "nephew" means in English law the son and "niece" the daughter of a brother or sister; and great- nephews or great-nieces are not embraced by the term.^ And as a gift is naturally to blood relatives, a nephew or niece by marriage, that is the nephew or niece of the testator's hus- band or wife, is prima facie excluded ; ® as also would be the wives or widows of blood nephews.'^ A similar presump- tion against great-grand-nephews is afforded where the gift is to " grand-nephews " simply.* ^ Ambl. 397; Bouv. Diet. "Descend- Phila. 144. But as to property to be ants"; 2 Jarm. Wills, 98-100. "equally divided among my brothers The word " offspring " is prima facie and sisters and their heirs," see 137 Mass. synonymous with " issue," as a word of 409, where the right of representation limitation and not of purchase. Allen was extended to the issue of such a V. Markle, 36 Penn. St. 117; 3 Drew. 7. sister. See also L. R. 11 Eq. 366, note. See 29 Beav. 6, 18. ' Ambl. 514 ; Shelley v. Bryer, Jac. 2 Ralph v. Carrick, 11 Ch. D. 873. 207; Crook v. Whitley, 7 D. M. G. 490; ' Hawkins Wills, 86; Grieves v. Raw- 2 Yeates, 196; 2 Jarm. Wills, 152; 43 ley, 10 Hare, 63; 2 Jarm. 154; 61 How. Ch. D. 569. N. Y. Pr. 48; 2 Jones Eq. 202; I Mc- ^ Hawkins Wills, 85 ; Smith v. Lid- Cord, 406; 2Yerg. 115. iard, 3 K. & J. 252; Green's Appeal, * See Cotton v. Scarancke, I Mad. 45. 42 Penn. St. 30; 39 Ch. D. 614. " Brethren," as a word of common gen- ' Goddard v. Amory, 147 Mass. 71. der, has been held to embrace both ^ Waring v. Lee, 8 Beav. 247. brothers and sisters, i Rich. Eq. 78. The rule of the text admits of the A devise to " brothers and sisters " ex- usual qualifications. Thus " nephews eludes a niece, the issue of a sister who and nieces on both sides " may be con- was dead at the date of the will. 11 strued to include those by marriage. S7I § 537 LAW OF WILLS. [part VI. The word " cousins " may literally comprehend a large number of collateral kindred ; for it denotes the son or daugh- ter of the brother or sister of one's father or mother; so that one may have both paternal and maternal cousins of equal degree. For convenience it is presumed that a testa- mentary gift to " cousins " is meant to include first cousfns only, if there be such,^ and the nearer degree to that more remote. Nor does a gift to " first cousins," or cousins ger- man {i.e. to the children of brothers or sisters) include first cousins once removed any more than a gift to "cousins" simply ; ^ though a gift to " all the first and second cousins " would embrace all within the degree of second cousin, and hence take in equally the first cousins once removed and the first cousins twice removed.^ § 537. " Relations," " Family," etc., as the Objects of a Gift. — The word "relations" or "relatives" has of itself no precise reference to legal succession, nor indeed any precise sense at all, since kindred to the remotest degree might thus be spoken of. But for convenience, and in order to prevent a gift from being void for uncertainty, it is commonly confined to those who would take under the statutes of distribution* (or, if a devise, under the statutes of descent^) unless the Frogley v. Phillips, 3 De G. F. & J. 466. * Those entitled either as next of kin And the same inference arises where the or by representation to next of kin, may testator had no nephews or nieces of be thus included. Rayner v. Mowbray, his blood, so that the gift would other- 3 Bro. C. C. 234; i Bro. C. C. 31; wise have meant nothing. Sherratt v. Drew v. Wakefield, 54 Me. 291; Haw- Mountford, L. R. 8 Ch. 928; L. R. 15 kins Wills, 103; Varrell v. Wendell, 20 Eq. 305. So may the context of a will N. H. 431 ; 2 Jarm. Wills, 121, and show that grand-nephews are included Bigelow's note; 3 Mer. 437; 11 Phila. in a gift to nephews. 57 Conn. 24. 85. And see "poor relatives" thus 1 Stoddart v. Nelson, 6 D. M. & G. construed as though " poor " were omit- 68; 31 Beav. 305; Hawkins Wills, 86; ted. M'Neiledge v. Galbraith, 8 S. & 2 Jarm. Wills, 152. R. 45; 2 Jarm. 126; Widmore v. Wood- 2 Sanderson v. Bayley, 4 My. & Cr. 56. roffe, Amb. 636. As to " blood relatives," 'Hawkins Wills, 86, 87; Mayott v. see Cummings i-. Cummings, 146 Mass. Mayott, 2 Bro. C. C. 125; I Sim. & Stu. 501. 301 ; Charge v. Goodyer, 3 Russ. 140. 6 Thwaites v. Over, I Taunt. 263; For the method of computing degrees M'Neiledge v. Barclay, 1 1 S. & R. 103. of Ifindred, see chart at end of Schoul. The rule is more frequently applied to Exrs. & Admrs. bequests, as in the preceding note. CHAP. II.J DETAILS OF TESTAMENTARY CONSTRUCTION. § 537 will discloses a plain purpose to the contrary.^ A gift to one's relatives, however, does not/rmfl/««> refer to husband, wife, or marriage connections, but to those only of one's own blood ,-^ though relations of the half-blood may share.^ A gift to "those related to" a person or to "near relations" may be deemed synonymous with "relations" or "relatives."* But the rules are adopted for convenience, where a definite class should be set apart as objects of one's bounty ; and a charitable gift to relations by way of continuing a trust, is not thus limited ; nor has a power to appoint property to relatives been always thus confined if it carried a right of selection.^ A gift to " nearest relations " prefers brothers to nephews or niece.^ " Family " in a will sometimes denotes the testator's chil- dren, and their respective children, and even the wife of a son, as forming one household, and all living together.^ But this is out of deference to what the testator appeared to have in- tended. The term " family " is indeed a flexible one, and may, under different circumstances, mean a man's household, consist- ing of himself, his wife, children, and servants ; it may mean his wife and children, or his children, excluding the wife ; or, if he has no wife and children, it may mean his brothers and sisters, or his next of kin ; or it may mean the genealogical stock from which he sprung, since all these applications of 1 See 3 Bradf. 382; I Bro. C. C. 32, 400; Ennis v. Pentz, 3 Bradf. 382; 2 note. On the other hand, the context Jarm. Wills, 124. may confirm the prima facie construe- ' Harding v. Glyn, i Atk. 469. Cf. tion. 20 N. H. 431. Pope v. Whitcombe, 3 Mer. 689 ; 4 2 2 Jarm. Wills, 125, 154; Kimball v. Russ. 297; Varrellw. Wendell, 20 N. H. Story, 108 Mass. 382; i Bro. C. C. 31; 435. And see 2 Jarm. 127, 128. Ennis v. Pentz, 3 Bradf. 382; Cleaver It is held that the relations take w. Cleaver, 39 Wis. 96; Hibbert z/. Hib- equally /^r capita, the statute being bert, L. R. 18 Eq. 504; 83 Me. 197. employed only to define the objects and 3 Supra, § 536; 2 jarm. 124, 152. not the shares. Tiffin v. Longman, 15 * Whitehorne v. Harris, 2 Ves. Sen. Beav. 275. But cf. Hawkins Wills, 105, 527; Handley v. Wrightson, 60 Md. citing 9 H. L. C. i. And see 2 Jarm. 198. But a gift to " nearest " relatives Wills, 122-124. The testator may have seems equivalent to next of kin, exclud- indicated plainly whether the relations ing the right of representation, but per- shall share equally or not. haps admitting all of the same degree ^ Locke v. Locke, 45 N. J. Eq. 97. in blood. Smith v. Campbell, 19 Ves. ' Bradlee v. Andrews, 137 Mass. 50, SS- 573 § 538 LAW OF WILLS. [PART VI. the word and even others are found in common parlance.^ It refers of course to two or more persons.^ The description of "family " may sometimes be so vague that the gift will fail alto- gether,^ and, on the other hand, be upheld like a gift to " rela- tions." * A bequest to " A's family " or to the " family of A " is most readily supposed to denote A's children, if he have any, or his next of kin ; ® and a devise would refer corre- spondingly to "heirs," or "heirs of the body" ;® while a gift to "family" of personalty and realty blended may designate next of kin as to the one kind, and heir as to the other. '^ A devise of land to " A and his family " would consequently seem to import an estate tail at common law ; * and so, too, a bequest of personalty to "A and his family" would operate as a gift to A for life, with remainder to A's children,^ though this awkward construction is sometimes avoided by regarding- the will as intending rather a joint tenancy between A and such of his children as survive the testator. i" § 538. Taking per Capita or per Stirpes. — That distinction SO familiar in the distribution of the estates of decedents, namely between J>er capita and per stirpes, comes now into view. Where all the persons entitled to share stand in the same degree of kin to the decedent, as, for instance, all grand- children, and claim directly from him in their own right, and not through some intermediate relation, they take per capita ; that is, in equal shares, or share and share alike. But where 1 Blackwell v. Bull, I Keen, 181, per * Supra, p. 572; 9 Ves. 319; 2 Jarm. curiam ; 2 Jarm. Wills, 90. A will may 95. employ the word " family " in the sense » Hawk. Wills, 89; Gregory v. Smith, of including an illegitimate child. L. R. 9 Hare, 708; Barnes v. Patch, 8 Ves. 6Ch. 597; supra,% 534. And see, as to 604; Heck v. Qippenger, 5 Penn. St. illegitimate relatives, Jodrell Re, 44 Ch. 388; 3 W. Va. 610. D. 590; aff. App. Cas. (1891) 304. But 6 Hob. 29; Wright v. Atkyns, 17 Ves. a child of H, born after the testator's 255; Coop. 122; 2 Jarm. Wills, 91. death, is not included under a devise to ' White v. Briggs, 15 Sim. 17. " H and family." 64 N. H. 526. 8 29 Beav. 657. 2 55 Conn. 239. 9 26 Beav. 195, 485, per RomiUy, 8 See Tolson v. Tolson, 10 Gill & J. M. R. See same c, post. 159; 2 Jarm. Wills, 90, 91; Harper v. w Parkinson's Trusts, i Sim. N. S. 242. Phelps, 21 Conn. 259; L. R. 6 P. C. And see Corlass Re, i Ch. D. 460. 381. 574 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § $38 they are of different degrees of kindred, as in the case of grandchildren and great-grandchildren, the latter represent- ing some deceased grandchild like A, they take per stirpes, or according to the stock they represent ; and hence the great-grandchild of A may take his dead parent's share, while other great-grandchildren are excluded because their parent B, C, or D is living. When persons take as individuals they are said to take per capita ; wheii by right of representation, per stirpes ?^ If this distinction is embodied in the laws which distribute an intestate estate, a testator may expressly contemplate it in his will or the law presume it for him in his silence. One may thus exclude the legal inference of representation by naming the grandchild of a deceased child with children or specified individuals as all to take " share and share alike," or by some similar expression ; or he may on the other hand give representation its natural force silently or by saying that such grandchild shall "take his parent's share," "take by right of representation," and the like. The statute policy of the jurisdiction must determine how far the rule per stirpes should be carried, when the assent of the testator is to be inferred from the language or the silence of his will. But aided by this policy our courts raise certain presumptions. Thus under a gift to "descendants" (taking the usual broad scope of this word^) equally, though children and grandchildren, or great-grandchildren be embraced, some with a living parent, and others with none, the issue of every degree are entitled to an equal share, simply because the will has so directed.^ And the same holds true of a gift to one's " issue " in the broad sense of this word as synony- mous with descendants, or nearly so.* On the other hand, if the gift is directed to be in the statutory proportions,^ or if it expresses the idea of a distribution /^r stirpes among specified persons, or some one's "descendants," or "issue," as when it 1 2 Black. Com. 218 ; 3 Ves. 257; » Butler v. Stratton, 3 Bro. C. C. 367; Bouv. Diet.; 2 Jatm. Wills, loi, 106, 2 Jarm. 100; 2 Jur. N. S. 443. ,12. * Supra, § 535; Davenport v. Han- 2 Supra, § 535. bury, 3 Ves. 257; 2 Jarm. Wills, loi. 6 Smith V. Pepper, 27 Beav. 86. S7S § 539 ^^"^ °^ WILLS. [part vl directs expressly that any child of a deceased member of the class shall take his parent's share by right of representation,^ the will should operate accordingly. As to real estate, cor- responding maxims would seem logically to apply; but we must remember that the statute policy of descent coin- cides not wholly with that of distribution, and the old will which favors the heir may still hamper the local construc- tion.^ The due interpretation of a will requires sometimes that personalty should be divided per capita, and the realty per stirpes? In general, legatees will take per capita rather than per stirpes, or vice versa, where it is clearly apparent wljiat the testator intended.* § 539. The Same Subject. — Personal representatives, or the next of kin, under the Statute of Distributions, take naturally per capita by the policy of English law ; hence an express provision that the " personal representatives " of a child or children, shall take per stirpes and not per capita has been taken to indicate that the testator used " personal representatives " in the sense of "descendants." ^ ?' Heirs," on the other hand, or "bodily heirs," "heirs and assigns," and such like expressions, signify prima facie that the gift was to take effect /^^j/^^^j.^ But all such construction gives way if another intfent be detected ; and detached words afford no constant test of what the testator really intended. As where one gives "equally," or " share and share, alike," to his lawful " heirs " ; ^ though once more " equally," or " share and share alike," might fitly refer in a given case to a division among a class as per 1 Robinson v. Shepherd, 32 Beav. burne Re, 16 R. I. 208 ; 2 Jones Eq. 665; 10 Jur. N. S. 53; 2jarm. 100. 377. " Heirs or legal representatives " 2 See 2 Jarm. Wills, 102. is a flexible expression. See 27 Penn. » Hayes v. King, 37 N. J. Eq. i. St. 55; 118 111. 403. 4 See Verplanck lie, 91 N. Y. 439. ' 2 jarm. Wills, 195, Bigelow's note; " Atherton v. Crowther, 19 Beav. 448. Puryear v. Edmonson, 4 Heisk. 43; Tut- 6 Balcom v. Haynes, 14 Allen, 204; tie v. Puitt, 68 N. C. 543; Richards v. Osburn's Appeal, 104 Penn. St. 637; Miller, 62 111. 417; Allen v. Allen, 13 Cook V. Catlin, 25 Conn. 387; Swin- S. C. 512. CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § S4O Stirpes.^ On the other hand, where the gift, is to those who would take in case of intestacy, or to "next of kin" in classes, leaving it doubtful what should be their due propor- tions, it is held in the United States the safer rule to con- strue "next of kin" in close conformity with the Statute of Distributions, so as to give representation and the division per stirpes its usual effect under the local policy.^ These presumptions do not seem to vary in force whether the heirs, next of kin, etc., referred to are those of the testator himself, or of some other person living at the date of the will.^ § 540. The Same Subject. — As for a gift to be shared by the children of two or more persons, whether expressed to the children of A and B, etc., or to the children of A and the children of B, the devise or bequest means prima facie that these children shall tdiks per capita and not per stirpes.^ And thus is it also with a devise or bequest to children and grand- children, or to brothers and sisters and nephews and nieces, as though intended to be equally divided among them, the objects of bounty being specified by name.^ Indeed, wherever as a class the beneficiaries are individually named, or are designated by their relationship to some ancestor living at the date of a will, whether to the testator or some one else,* they share per capita, by natural inference, and not per stirpes ; * and especially if they are all of the same degree.'^ Persons, moreover, who would otherwise have taken per 1 King V. Savage, 121 Mass. 303; Herbert, 27 N. J. Eq. 540; Young's Lyon V. Acker, 33 Conn. 222; Risk's Appeal, 83 Penn. St. 59; Hoxton v. Appeal, 52 Penn. St. 271 ; 16 R. I. 208. Griffith, 18 Gratt. 574; Hawkins Wills, 2 King V. Savage, supra; Harris's 113. The codicil taken with the will Estate, 74 Penn. St. 452; Lackland v. may evince such intention. Atwood v. Downing, 11 B. Mon. 34; Fishery. Skill- Geiger, 69 Ga. 498. man, 3 C.E.Green, 236; Hawkins Wills, ' Kean v. Roe, 2 Harring. 103; 2 115. Cf. g Rich. Eq. 471; 2 Dev. Eq. Jones Eq. 202. 306. ' 2 Jarm. 194, Bigelow's note; Craw- * 12 Bush. 369. ford v. Redus, 54 Miss. 700; Young's * 2 Jarm. Wills, 194, and Bigelow's Appeal, supra. note; 2 Vern. 705; Lincoln v. Pelham, ' Where all the next of kin are chil- 10 Ves. 116; Luzar v. Harman, I Cox, dren of brothers and sisters, they take 250; Farmer v. Kimball, 46 N. H. 435 ; per capita. Wagn«r v. Sharp, 33 N. J. Hill V. Bowers, 120 Mass. 135; Thomp- Eq. 520. son V. Young, 25 Md. 461 ; Post v. ' 577 § 540 LAW OF WILLS. [PART VL Stirpes, as A and the children of B, or the members of a specified class and their children, may, from the collective description under which all are embraced in the will, be presumed to tzk.^ per capita and equally.-' But this construction bends readily as in other cases to indications in the will of a contrary purpose, if such be the fairer conclusion from the whole context.^ And the instances where the presumption has thus given way are very many. As in the mode of appropriating income, or a failing share before the capital fund is to be distributed.^ Or by force of such words as "heirs,"* or "respectively."^ Or where the gift to children, nephews, etc., is merely substitutional, as in the case of a bequest not collectively to A and B " and their children," but to A and B "or their children."^ Or where " children of A " as a class are named with other individual beneficiaries.'^ And generally where the other dispositions in the will lead easily to a contrary interpretation.* For all this indicates that the idea of bestowing by representation and per stirpes and not equally, of making a gift to respective classes, of treating children as standing in the place of their parents, was in the testator's mind when he made the will.^ And where by one clause of the will a distribution of prop- 1 Blackler v. Webb, 2 P. Wms. 383; will yield "to a very faint glimpse" of Butler V. Stratton, 3 Bro. C. C. 367; 12 a different intention in the content, says Sim. 167, 184; Payne v. Webb, L. R. Jarman. lb. 19 Eq. 26; I Jarm. Wills, 194; Pitney 3 Brett ^^ Horton, 4 Beav. 239; V. Brown, 44 111. 363; 38 N. J. Eq. 348; Hawkins v. Hammerton, 16 Sim. 410; Dible's Estate, 81 *Penn. St. 279; Hawk- i Mer. 358. ins Wills, 113; Scott v. Terry, 37 Miss. * Supra, § 539. 64; Fisher v. Skillman, 3 C. E. Green, ^ Davis v. Bennett, 4 De G. F. & J. 23-1; 118 111. 403; Senger v. Senger, 327. But not if equal division among 81 Va. 687 J 72 Ga. 825 ; 64 N. H. them, share and share alike, is directed. 328. 13 S. C. 512. A devise to " all my grandchildren in 62 Jarm. Wills, 195, 196; Davis v. equal shares " entitles them to take per Bennett, supra ; Price v. Lockley, 6 (apiia and not per stirpes, 142 Mass. Beav. 180. 240. But other expressions indicate an ' Ferrer v. Pyne, 81 N. Y. 281 ; 83 apparent intention to the contrary. 19 N. Y. 505; 30 N. J. Eq. 595. N. C. 207; 113 N. Y. 366; n8 Ind. 23; » Adams v. Adams, 2 Jones Eq. 217; Lockwood's Appeal, 55 Conn. 157. 136 Penn. St. 222. 22 Jarm. Wills, j[95, and Bigelow's 'Hawkins Wills, 114, and Sword's note; Alder w. Beal, 11 Gill &J. 123; note; 6 Ired, Eq. 487; 7 Rich. Eq. cases infra; Hawkins Wills, 113. It 132; Walker i/. Griffin, 11 Wheat. 375. s;8 , CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. §541 erty per capita is directed, and by a subsequent contradictory clause a distribution per stirpes, the latter may be held to control.^ Furthermore, the policy of our local statutes of distributions will be found to favor the right of representation more fully as to lineal than collateral kindred.^ § 541. The Same Subject. — Occasion has sometimes Arisen for applying this distinction oi per capita zx\A, per stirpes \i\\s.x& the devise or bequest is to tenants for life with a remainder over. Here the conclusion, where no plainer signs of a tes- tator's intent appear, must depend much upon whether the tenants for life take with or without a right of survivorship. If the gift is to several for life in common, and afterwards to the children of some only of these life tenants, these children may readily be presumed to take per capita? But otherwise a gift to A and B for life as tenants in common devolves prima facie on the children per stirpes, so as to keep each share dependent upon a death, separate and distinct.* But if the life tenants take as joint tenants, or in any other man- ner which gives the right of survivorship, and but one period of distributing the fund, it may be presumed that with one class bf objects, they were intended to Idke per capita} And so, too, even without this survivorship, where the general distribution among children is postponed until after the death of the last surviving tenant for life.* In short, a dis- position to give to children per capita z^'pesx?, restrained only by the inconvenience of identifying them together as distrib- utees, when shares go over separately and at different times as each life tenant dies, and there might be more children to take one share than another unless the per stirpes rule were 1 Garter v. Lowell, 76 Me. 342; supra, " See Woodward v. James, 1 15 N. Y. § 478. And see Campbell's Trusts, 31 346. Ch. D. 685; aff. 33 Ch. D. 98. ' Swan v. Holmes, 19 Beav. 471. The cases which apply the construe- * 2 Jarm. Wills, 197, and cases cited; tion per capita or per stirpes are very Wills v. Wills, L. R. 20 Eq. 342; Cowp. numerous, and need not be cited at 777; Arrow v. Mellish, i De G. & S. length. See cases already cited i«/ra. 355; Hawkins Wills, 114, 115. Local statutes may be found extending * Malcolm v. Martin, 3 Bro. C. C. 50; the favor of the law to the rule of per Taafe v. Conmee, 10 H. L. Cas. 64; stirpes or representation of an ancestor's Hawkins Wills, 115; 18 Beav. 590. share. 15 R. I. 171 ; 46 Ohio St. 307; « Nockolds v. Locke, 3 K. & J. 6. 81 Me. 268; 84 Mich. 567. 579 § 542 LAW OF WILLS. [pART VL applied.^ Nor can even this inconvenience override a testa- tor's manifest intent.^ § 542. "Heirs" and "Next of Kin," as used in Bequests. — To enter more fully upon descriptions of the interest taken under a will, let us first considerthe meaning of the words " heirs " and " next of kin " as applicable to a testator's per- sonal estate. English text-writers distinguished between four classes of persons who may take personalty beneficially by way of succession: (i) the "next of kin" proper, as com- puted according to the degrees of the civil law ; (2) the " next of kin according to the Statute of Distributions," which includes those who take by representation to next of kin ; (3) the wife, who is entitled to a share under the Statute of Distributions, but is not one of the next of kin; (4) the husband, who was said to take the personalty of his wife by virtue of his matrimonial right, and not under the Statute of Distributions at all.^ So technical a division, however, between " next of kin " within and without the Statute of Distributions, appears unsuitable to the temper of the age in this country at least. The old Statute of Distributions of Charles II., though at the basis of our American jurispru- dence, by no means fixes the prevailing rights of kindred in the systems of the several States ; but measuring these rights constantly by local statute, we have come to use "next of kin" in a sense relative to such local legislation as may apply, with little regard to the original statute, and much less to meaning which the civilians attached to the term. And as for the rights of widow or surviving husband in a decedent's es- tate, we consult our written law, whether styled a Statute of Distributions, or bearing any other title. All this is impor- tant, when we consider that what a testator probably intended by his choice of words is the main point at issue. The word "heirs" in a bequest of personal property, referring to the heirs of A, means, then, prima facie the 1 Cases supra; 2 Jann. 197, 198. D. 380 ; Smith v. Streatfield, i Mer. 2 Ca. t. Talb. 27; Abrey v. Newman, 359; Hawkins Wills, 115. 16 Beav. 431; Swabey v. Goldie, i Ch. ' 2 Steph. Com. 197, 209; Hawkins Wills, 91. Cy. Schoul. Eas. §§ 498-502. 580 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 542 persons who would be entitled to that property had A died intestate ; and this whether A is the testator himself, or some one else named in the will, and whether the gift is substitutional (as in the bequest to " A or his heirs " i) or original (as to the "heirs of A"). 2 In other words, heirs is not "next of kin" according to the civil computation, but the statutory next of kin or distributees, those who for the purpose of succession stand in a position analogous to that occupied by heirs, as to real estate, under the law of descent.^ This presumption favors testamentary intent, notwithstanding the word " heirs " is technical and inappropriate to personal estate. Hence English cases have included a widow in the bequest out of deference to the original Statute of Distributions of Charles II. ;* though not a surviving husband.^ But a just regard for our local law of distributions in this country may well exclude both husband and wife from taking as " heir " ; and the local law, if not clearly waived by the testator him- self, ought to conclude the point, whether favorably or un- favorably to a surviving spouse. In American acceptation, the husband is neither heir nor next of kin to his wife, gen- erally speaking ; nor is the widow heir or next of kin to her husband.® And at all events where personalty is given to 1 Hawkins Wills, 92; Gittings v. Mc- 140; Nelson w. Blue, 63 N. C. 660; Dermott, 2 My. & K. 69; 2 Jann. Wills, Ward z/. Saunders, 3 Sneed, 391 ; 2Duv. 79; Doody V. Higgins, 9 Hare, 32; 296; Evans w. Godbold, 6 Rich. Eq. 26 ; Newton's Trusts, L. R. 4 Eq. 173. Sweet v. Button, 109 Mass. 589; 146 Such a bequest is construed as a gift Mass. 345. The meaning of the word by way of substitution to the heirs, in " heirs " when used in a will may be the event of A's death before the period determined from the context, of distribution. lb. A gift "to A, and 'lb.; Hascall o. Cox, 49 Mich, if he dies before me, to his heirs," con- 435. forms also to the rule of the text. I J. * Hawkins Wills, 92; 2 K. & J. 738; & W. 388. The word "forever" does Porter's Trusts Re, 4 K. & J. 188. not alter the construction. Doody v. * Lord v. Bourne, 63 Me. 368; Rich- Higgins, su/ir a. ardsoni'. Martin, 55 N. H. 45 ; Tillman, 2 Hawkins Wills, 92, and Sword's w. Davis, 95 N. Y. 1 7. Gibbons ». Fair- note; Jacobs V. Jacobs, 16 Beav. 557; lamb, 26 Penn. St. 217, holds that the Porter's Trusts Re, 4 K. & J. 188; word "heir" or " representative " does Houghton K. Kendall, 7 Allen, 76; Wright not necessarily exclude the husband, if V. Trustees, I Hoff. Ch. 212; Ashton's he can be included by the law of the Estate, 134 Penn. St. 390; 136 Penn. country. St. 153; Ferguson v. Stewart, 14 Ohio, ^ See 106 Penn. St. 176, 216. But 581 § 543 i-Aw OF WILLS. [part vl the widow for life, and after her death to the testator's " heirs," the widow cannot be treated as an heir ; ^ nor in any other case where the context shows that she is regarded differently. The word " heirs " is flexible on the whole, and may denote " next of kin " or " heirs at law," according to the nature of the property given,^ as well as next of kin in one sense or another. But what this word signifies is in all cases a ques- tion of intention ; and if other expressions in the will and the whole context clearly indicate what the testator meant, and that his meaning was not according to the usual sense of " heirs " as above, that intention must prevail.^ And whether in accordance with the presumption or against it, we often find "heirs " construed by a court where the sense permits as though it were written "children."* For "issue," "chil' dreii," " heirs " are constantly interchanged in testaments. And some other meaning of the word may have been adopted by the person whose will is to be interpreted.^ § 543. The Same Subject. — As for the expression, " next of kin," when employed in a bequest of personalty, the English precedents, after much conflict of authority, con- cluded it to import prima facte by itself a gift by way of joint tenancy to the nearest blood relations of the propositus in equal degree under the civil computation ; ® and this is pursu- local statute may change this rule. Lin- Ind. 308. " Heirs- at- law of A" does coin V. Aldrich, 149 Mass. 368. not embrace readily a child whom A ^ Henderson v. Henderson, i Jones has adopted under the statute since. L. 221. Wyeth v. Stone, 144 Mass. 441. 2 Ingram v. Smith, i Head, 411; A gift to the " heirs of E, deceased," Sweet V. Dutton, 109 Mass. 589; 146 will include the children of E's son, who Mass. 424. As to "heir" in a devise died after the will was executed, but of real estate, see §§ 545-553, post, at before the testator. 41 N. J. Eq. 414. more length. Where a conversion from real to per- ' Den V. Zabriskie, 15 N. J. L. 404; sonal estate has taken place, agreeably 3 Rich. Eq. 156; Love v. Buchanan, 40 to the will, the technical sense of " heirs " Miss. 758; Williamson v. Williamson, yields. Howell v. Ackerman (Ky.), 18 B. Mon. 329; 53 Md. 550. 1889. * Bowers v. Porter, 4 Pick. 198; Eby 6 Elmesley v. Young, 2 My. & K. ■V. Eby, 5 Penn. St. 461 ; 6 Ala. 431 ; 780; Withy v. Mangles, 4 Beav. 358; 2 Desau. 94; 25 S. C. 289. s.c, 10 CI. & F. 215; Hawkins Wills, * Collier w. Collier, 3 Ohio St. 369; 97; 2 Jarm. Wills, 108-111. American Hayne v. Irvine, 25 S. C. 289; 117 precedents may be found of the same 582 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 543 ance of the technical distinction already pointed out.^ For to carry the gift to " next of kin, according to the Statute of Distributions," one ought to express himself to that effect, or at least imply such a purpose, as in giving to those who would have taken had he died intestate ; ^ in which case the right of representation and per stirpes will take effect, and legatees take as tenants in common.^ The above rule of con- struction would put the father of a testator on the same footing as his own children, where he gives simply to his "next of kin," and among children ignore utterly the right of representation.* How contrary this is to one's natural intent we need not argue i and in the midst of these refine- ments of construction. Lord Campbell admits frankly that " the law has by some bad luck got into a strange state." ^ The true intent of the will should prevail against any perver- sion of words from their usual meaning ; and American author- ities will often best further this intent by presuming " next of kin " to mean, as it does in popular usage, those whom pub- lic policy and legislation recognize as such, and not computing them by the antiquated and unjust rule of the canonists. At all events, under a gift to own " next of kin," whether simply or under the Statute, the widow takes nothing, nor of purport. 5 Jones Eq. 236; 5 Ired Eq. tions necessarily arise under this Eng- 382; Redmond v. Burroughs, 63 N. C. lish rule. See 2 Jarra. 109. Thus, a 242; Hoff. Ch. 202; Swasey v. Jaques, gift to the "next of kin" of a married 114 Mass. 135; 150 Mass. 231. woman "as if she had died unmarried," " It is certainly difficult to distinguish is treated as too doubtful a reference to between the expressions ' next of kin,' the statute. Halton v. Foster, L. R. ' nearest of kin,' ' nearest kindred,' and 3 Ch. 505. In a recent case, a bequf st • nearest blood relations,' and primarily " to the heirs or next of kin of A de- the words indicate the nearest degree ceased " was held to be a gift to a class, of consanguinity, and they are perhaps and not alternative : namely, to the next more frequently used in this sense than of kin of A according to the statute, any other." Field, J., in Swasey v. Thompson's Trusts Re, 9 Ch. D. 607. Jaques, 144 Mass. 135, 138. By the will Gifts expressly to "next of kin" on as here applied, the brother, not unjustly, the mother's side or on the father's side, took to the exclusion of nephews. or exclusive of some person or persons, 1 Supra, § 542. or preferring one line of kindred to 2 Hawkins Wills, 97-99; Garrick v. another, are sometimes construed. 2 Camden, 14 Ves. 372; 2 Jarm. Wills, Jarm. no. 109. * See Schoul. Exrs. §§ 498-502. 8 Bullock V. Downes, 9 H. L. Ca. i; * Withy v. Mangles, lo CL & F. 215, L. R. 6 Eq. 601. Some nice distinc- per Lord Campbell. § 544 LAW OF WILLS. [part vl course does a surviving husband ; for married persons are not " next of kin " to one another.^ § 544. " Representatives," " Ezecutors and Administrators," etc., as used in Bequests. — The term "representative," some- times called a "personal representative," or a "legal personal representative," has an equivocal meaning when associated with a deceased person's estate. Executors or administra- tors are most naturally designated by such words. Hence a bequest of personal estate to the "representatives," or the " personal " or " legal personal representatives " of any one, whether of the testator or some one else designated, is taken to intend frima facie one's executors or administrators.^ But the weakness of such a presumption consists in making those who, properly speaking, should represent some decedent for legal purposes, represent him beneficially to the detriment of his statutory next of kin ; or, again, of making the deceased testator or intestate represented a legatee in effect. And, accordingly, courts have often avoided that construction by considering the statutory heirs or next of kin as " represen- tatives " in a layman's looser sense, and under that descrip- tion fulfilling the policy of the law by making the bequest operate as though the giver had died intestate in respect of such property.^ And in other instances they have presumed that the gift, whether to the personal representative, or to executors and administrators, meant that the legal represen- tative should take the property in his fiduciary character 1 Garrick v. Camden, 14 Ves. 372; Cotton v. Cotton, 2 Beav. 67; 2 Jarm. Storer v. Wheatley, i Penn. St. 506; Wills, 11 1, and Bigelow's note; Horner Irvin's Appeal, 106 Penn. St. 1 76. Se, yj Ch. D. 695; Davies v. Davies, 2 Hawkins Wills, 107; Saberton v. 55 Conn. 319; 43N. J. Eq. 95; Brokaw Skeels, I R. &My. 587; King ». Cleave- w. Hudson, 27 N.J. Eq. 135; 3 Edw. land, 4 De G. & J. 477; 2 Drew, 230; Ch. 270; Gibbons v. Fairlamb, 26 Penn. Ware Re, 45 Ch. D. 269. St. 217; Thompson v. Young, 25 Md. A wife who makes her will and dies 450; 12 Rich. Eq. 260. English anal- soon after her husband, may thus return ogy would thus include a widow as a the property she received under his will beneficial " representative," though not to his estate. Halsey v. Paterson, 37 a surviving husband. 4DeG. &J. 477; N. J. Eq. 445. supra, § 542. And see 2 Demarest, • Bridge v. Abbot, 3 Bro, C. C. 224; 112. 584 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 544 only, and not as the rightful owner.^ The context may, by associating such words as " next," 2 or by directing how the trust fund shall be paid, shared, or enjoyed.^or by some other reference which brings out the purpose more plainly, conclude that executors or administrators should not take in one char- acter or another. " Executors and administrators," or " legal representatives " are terms quite naturally used as mere words of limitation. For in the common case of a gift to " A and his executors or administrators," or to " A and his legal representatives," A takes the absolute interest, being manifestly the only object of the testator's bounty.* But a gift may be made to A's "representatives" by way of substitution for A in case of his death ; ^ or to such of a class as may be living at a certain time, and " the executors or administrators of such of them as shall then be dead " ; ^ or to A's " executors or adminis- trators," or "representatives" simply without any suggestion of A's death.'' In all such cases, the idea of a beneficial gift to next of kin is necessarily excluded. But whether the property shall vest in the representative for his own benefit iz another thing. Such a construction appears once to have prevailed in England ; but the later and more trustworthy cases condemned it as 'quite the reverse of what testators naturally intend ; and an express enactment of William IV. confirms the impolicy of mingling the legal and fiduciary characters.^ Apart from legislation, it is true, an executor or administrator, a legal representative, may be made a legatee if the testator so directs explicitly ; ^ though one 1 See Wigram, V. C. in Holloway v. ' Trethewy v. Helyar, 4 Ch. D. 53; Qarkson, 2 Hare, 523. 2 Jarm. 1 18. 2 Stockdale v. Nicholson, L. R. 4 « 2 Jarm. Wills, 118, 119; i Anstr. Eq. 359. 128, disapproved in Long v. Blackall, * 2 Jarm. 113; 3 Ves. 146; l9Beav. 3 Ves. 483; Act. i Wm. IV. c. 40. 448; Hawkins Wills, 108; 7 Hare, 225; Though the original gift were imme- Atherton v. Crowther, 19 Beav. 448. diate, and the legatee died in the testa- * Appleton V. Rowley, L. R. 8 Eq. tor's lifetime, or was dead at the date 139; 2 Jarm. 115. of the will, the presumption should be * Price V. Strange, 6 Madd. 159; against a beneficial enjoyment by the Taylor z/. Beverley, I Coll. 108. representative. 17 Beav. 471; Tre- 6 Seymour's Trusts, John. 472. thewy v. Helyar, 4 Ch. D. 53. » See Wallis v. Taylor, 8 Sim. 341, § S4S LAW OF WILLS. [PART VI. seldom would be selected as an object of bounty for' the sake of the office and not the man who filled it ; but the general purport of such gifts is prima facie that the representative constituted by the court takes the gift not beneficially but as part of the estate which he represents. ^ And once more a gift may be made to " my executor A," which is really to A per- sonally, the word " executor " being simply descriptive of him.^ § 545. Heir hovr far favored -when Realty is undisposed of. — Wherever real estate is not beneficially disposed of under the will, whether this results from the silence of that instrument, or from its failure of operation because of the predecease, disclaimer, or incapacity of the devisee named, the rule is, that the beneficial interest therein devolves upon the heiv or heirs at law ; in other words, it goes according as the local statute may have cast the inheritance in case of intestacy. And since the statute rules for personalty and realty, for next of kin and the technical heirs, for distribution and descent, do not coincide, this distinction by the species of property should be borne in mind.^ Hence is derived the familiar doctrine of a resulting trust in favor of the heir upon the true interpretation of a devise. And consistently with this doctrine, the heir at law takes the benefit not only of a general and total but of a particular and partial failure of disposition under the will : so that where real estate is devised simply upon trust for a particular purpose, as for paying specified debts, or with a direction that A shall have the rents and profits for life or some other specified term, whatever beneficial interest remains unex- hausted, or unapplied, results to the heir. This resulting trust in favor of the inheritance sweeps in whatever benefi- cial interest touching real estate or its proceeds the devise, from one cause or another, fails to carry off into other chan- where the bequest was to executors, note ; Cro. El. 243 : Starkey v. Brooks, etc., "for their own use absolutely and i P. Wms. 390; Robinson v. Taylor, 2 forever." Bro. C. C. 589; Lewin Trusts, 124; 1 2 Jarm. Wills, 120; HoUoway v. Wright v. Methodist Church, i Hoff. Clarkson, 2 Hare, 523. 203; Tilghman ^1?, 5 Whart. 44; King 2 6 Dem. Sur. 166. v. Mitchell, 8 Pet. 326. ■ I Jarm. Wills, 565, and Bigelow's 586 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § S46 nels.i And so jealously have courts of chancery upheld the rights of the heir to the landed surplus undisposed of, even to the last remnant, that the order to blend personal and real estate in a common fund and other equivocal directions of a testator can hardly change this interpretation of a will.^ Where the devise bears the stamp of a trust and plainly was not for the devisee's own benefit — as the scope of the intention manifested by the instrument itself must ultimately determine, whether by introducing such words as " upon trust" or without any express words of trust whatever — this resulting trust in favor of the heir arises.^ Negative evi- dence of intent cannot exclude him, for the trust results not because the testator so willed it, but because he declared no positive trust to the contrary which can operate to dispose of the whole fund.* But where the purpose obviously shown by the will was to give the interest in the land beyond the scope of the declared or undeclared trust to the devisee beneficially instead of the heir, the latter' s rights must yield accordingly.^ § 546. The Same Subject. — Thus far we assume that the testator has made no express residuary devise of real estate by his will. As between a residuary devisee under the will, however, and the heir at law, it may be necessary to deter- mine which of the two shall take the realty undisposed of in preference to the other. Here the modern rule, as we have seen, which tends to assimilate dispositions of real and of personal property in principle, favors the residuary devisee, if there be one, above the heir, and carries to him prima facie all real estate or interest in real estate comprised in any void or lapsed devise.^ And yet, whether, a specific devise fail- 1 Cases j»/r3/ I Jarm. Wills, 565. 1 18-120; Dawson v. Clarkej 18 Ves. 2 Collins V. Wakeman, 2 Ves. Jr. 683; 254; Gloucester v. Wood, i H. L. Cas. Ackroyd v. Smithson, i Bro. C. C. 503; 272; Easterbrooks v. Tillinghast, 5 Lewin Trusts, 122. Gray, 17. The rule of the text operates where * 2 Vern. 425; 3 Ves. 211. A legacy the testator's real intention cannot be to the heir is a circumstance which may ascertained; but a devise will be reduced be considered in this connection, but it to a certainty and upheld if possible, is not enough to prevent him from tak- Jackson v. Kip, 2 Paine, 366. ing a trust fund. 3 P. Wms. 193. 8 I Jarm. Wills, 566-583, Bigelow's ' LewinTrusts, 1 18-120; i Jarm. 566. notes, and cases cited; Lewin Trusts^ « Supra, § 521 ; Act I Vict. c. 26, § 587 § 547 LAW OF WILLS. [part vl ing, the land passes by the residuary clause or goes to the heir, is after all a question of intent under the particular will.i § 547- Meaning of " Heirs " as applied to Real Estate ; or where Real and Personal are blended. — The word "heir" in a will has still a technical meaning, namely, the heir at law of real estate ; ^ and if there is nothing in the context to justify a different construction, the heir at law must take the prop- erty as persona designata ; or, in the broader sense of to-day, heirs are those persons upon whom, under the policy of the jurisdiction where the land lies, the inheritance is cast in case the owner dies intestate. This presumption avails in strictness only where real estate is devised ; for we have already seen that " heirs " in a popular sense prima facie denotes next of kin under the statute of distributions, so far as a gift of personalty is concerned.' If, therefore, property real and personal be blended under a gift expressed to " heirs," our modern construction fitly regards the testator's probable purpose as to each element of the disposition. There are cases in which both elements are mingled so completely in one fund on the face of the instrument that only one sense of "heirs" seems to fit the case, and that one the technical or real estate sense ; * or possibly as synonymous with " heir apparent " or with some peculiar or inaccurate meaning attached.^ But where real and personal estate are given together and not so insep- arably blended, "heir" is better treated as an elastic term ; and in such cases the intention intimated is rather, that " heirs " was used in a twofold meaning, namely, heir at law as regarded the real estate, and next of kin as concerning the 25; Green v. Dunn, 20 Beav. 6; Tongue in the character of devisee, and not as I/. Nutwell, 13 Md. 415; Thayer ZJ. Wei- formerly by descent. 2 Jarm. 61. In lington, 9 Allen, 283; 2 Jarm. Wills, the United States each State defines the 646-651. inheritance by its own statute. 1 Bosley v. Bosley, 14 How. 390. * Supra, § 542. 2 2 Jarm. Wills, 61 ; Mounsey v. Bla- * See Smith v. Butcher, 10 Ch. D. mire, 4 Russ. 384; Co. Lit. 10 a. 113, as cited in 25 Ch. D. 214. Under the English statute 3 & 4 Will. ^ Carne w. Roche, 7 Bing. 226; 2 IV. c. 106, § 3, the heir takes the realty Jarm. Wills, 71. 588 CHAP. II.J DETAILS OF TESTAMENTARY CONSTRUCTION. § S48 personalty.^ For where the word " heir " is used to denote succession or substitution, it may in our day be well under- stood to mean such person or persons as would legally suc- ceed to the property according to its nature or quality.'^ In all cases, however, the testator's intention, if manifest, must govern. And where the gift is directly to the heirs of a person as a substantive gift to them of something from which their ancestor was altogether excluded, this element of suc- cession or substitution is wanting, and the word " heirs " may more properly receive its strict common-law meaning.^ § 548. The Same Subject. — Where, then, a testator devises real estate to his heir simply, or to his heir at law or his right heirs, the person or persons who may answer this description at the testator's death are presumably entitled ; nor matters it that the devise expressed "heir" in the singular, while the statute heirs, in the given instance, are plural : for "heir" is a collective term and may stand for any number of persons who happen to fulfil the description.* Furthermore, it is a common-law rule of ancient standing that a devise simply expressed to heirs in the plural vests an estate in fee simple without any words of limitation added.^ What we have said of a devise expressed to a testator's own heir applies equally where land is devised to the heir of some other person designated in the will. But no one is the heir of a living person ; ^ and hence a gift expressed to the " heirs " of one who proves still alive could not in strictness vest, especially as evidence dehors the will, to show that the testator thereby intended "heirs" in some special sense, » Wingfield v. Wingfield, 9 Ch. D. nature of the property." See also 2 658; Keay v. Boulton, 25 Ch. D. 212 Jarm. WiUs, 81, 82. and cases cited; De Beauvoir v. De That " heir-at-law " is not an adopted Be^uvoir, 3 H. L. C. 524; Sweet v. child, see Wyeth v. Stone, 144 Mass. Button, 109 Mass. 589; 152 Mass. 441; j«/;-a, § 542. .57. * Fabens v. Fabens, 141 Mass. 395. 2 Mounsey v. Blamire, 4 Russ. 384, * Mounsey v. Blamire, 4 Russ. 384. per Sir John Leach, M. R. And see « Skinn. 206; 2 Jarm. Wills, 61, 62. what Lord Chancellor Cottenham says « " Nemo est hseres viventis " is the in Withy v. Mangles, 10 CI. & F. 215, familiar maxim. 2 Jarm. Wills, 71. 253, of "heirship according to the 589 § 549 ^AW OF WILLS. [part VI. would be inadmissible. Courts, however, lay hold of descrip- tive words, or other indications in the will that the testator regarded the person as living and meant the gift in a second- ary sense to the children or some other relatives of that person as a class reckoned at the testator's death, and by this interpretation of intent save the gift.^ The presumptive and proper meaning of " heir " yields, of course, to the context and probable meaning of any will in controversy taken as a whole. Thus, a testator may have intended the person described to become entitled under the gift in his ancestor's lifetime ; as, for example, where lands are devised to heirs male "now living."^ Again, he may have used "heir at law" in the sense of "eldest son,"^ or " heir " as synonymous with " heir apparent," * or with ex- press reference to " children." ^ If the will plainly devises to A B, identifying the person, no inaccurate description of A B as my " heir," or by similar words, will defeat the gift ; for it may be said either that "heir" was used in a special sense, or that the words of misdescription should be stricken out as surplusage, leaving the devise to stand unimpaired.^ § 549. Devise of Lands, Estate, etc., in Pee. — We have shown that by the old law a devise of lands in fee without words of limitation passed prima facie an estate for life only, though in many instances subversive no doubt of the testator's real intention.^ We have also seen that modern legislation has reversed the rule from a settled conviction of its impolicy.^ It was always admitted that a single gift to 1 2 Jarm. Wills, 61, Bigelow's note; ' Came v. Roche, 7 Bing. 226. Heard v. Horton, i Denio, 168; Carpe ' 2 Jarm. Wills, 72, 73; Goodrightw. V. Roche, 7 Bing. 226; 2 W. Bl. loio; White, 2 W. Bl. loio. And see 2 Jarm. I Dev. & B. Eq. 393. ' 74, 75. The gift is not saved by thus inferring ^ Haverstick's Appeal, 103 Penn. St. the secondary meaning of "heir," if 394; Hinton v. Milburn, 23 W. Va. limited by the will so as to give in effect 166; Barton v. Tuttle, 62 N. H. 558. a different estate from what "heir "in ^ 5«/ra, § 516; Hob. 33, 34; i Vent, the primary sense denotes. Campbell 381 ; 2 Jarm. Wills, 75-77. V. Rawdon, 18 N. Y. 412. See comment ' Supra, % 483. in 2 Jarm. Wills, 61, Bigelow's note. 8 Supra,- § 485. See also 4 Kent ^ James v. Richardson, Ld. Raym. Com. 5-8; lb. 535, 538; 2 Jarm. Wills, 330; 2 Jarm. 72; Morton v. Barrett, 267, 268, Bigelow's notes, where many 22 Me. 257. authorities are cited. . 590 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 549 A carried personal property ; and a testator naturally sup- posed that if he gave his land simply, the same result would follow ; and hence the practical mischief wrought by that artificial interpretation of earlier times, which the courts tolerated as long as they did from the dread of unsettling old titles in real estate, though avoiding it when they could find some plausible ground, equally artificial, to rest upon. With the English Statute of Victoria, and enactments of similar scope in almost every American State, we may now consider it a well-settled principle that in a devise of lands neither " heirs " nor any other word or words of inheritance or limitation need be superadded in order to pass a fee ; but the simple devise to A shall be construed to mean a devise in fee (or, at least, all the testator's interest in the property), unless the will clearly imports a different intention.^ And as for a devise of "estate," this word passed a fee even under the old rule.2 In order to meet the older requirements of our law, and for the sake at all times of leaving one's intention clear of doubt, a devise in fee simple has properly been drawn up, so as to give the land to " A and his heirs," or to "A, his heirs, and assigns forever "; ^ but numerous other expressions are sustained by the courts ; as, for example, " to A forever," " to A and his assigns forever," " to A and his successors," " to A in fee simple," " to A and his house," " to A and his family," " to A or his heirs." * So has the inheritance in fee passed where incidents of jus dispendi were annexed to the gift ; as, to A " to give and sell," " to be at his discretion," " to give away at his death to whom he pleases," " to do what he will with it," and the like.^ A devise with " all right and title " or 1 4 Kent Com. 7, 8, 535 and numer- 8 Vin. Ab. 206; Read v. Snell, 2 Atk. ous cases cited; 2 Jarm. Wills, 268, 645; Wright v. Atkyns, 17 Ves. 261. Bigelow's note. "I give my lands," A devise simply to " A and his assigns " « all the rest, residue and remainder of imports a life estate only. Co. Lit. 9 b. my lands," "all my lands," etc., are See the expression, "in fee-simple for good expressions at this day for giving life," construed in McAllister v. Gale, an absolute interest to the devisee. 1 1 Rich. 509. A devise " to A abso- 2 Supra, § 484; 2 Jarm. 276. lutely " will pass the fee. Oswald v. 8 2 Jarm. Wills, 274. Kopp, 26 Penn. St. 516. * lb. and cases cited; Co. Lit. 9 b; '2 Jarm. Wills, 274, 275; Jennings 591 § 55° LAW OF WILLS. [PART VL "all interest " annexed imports a fee.^ It is not upon formal modes of expression, however, that the force of the devise turns ; for whenever, expressly or by implication, the will shows the purpose to give one's property in fee simple, that purpose shall prevail,^ and so conversely where a lesser estate was intended.^ § 550. The Same Subject. — Since "estate" may denote the quantum of interest as well as the corpus of the property, the word has been given a free scope in passing the inheri- tance wherever its interpretation in a will may consist with such an intent. As where the testator devises "all my es- tate," all the remainder (or the residue, or the rest) " of my estate, real and personal," " all my estate, real, personal, and mixed," or even "my estate," or "my estates" at or in a certain place;* though not if "estate " is used as descriptive of chattel interests, so as to exclude a freehold.^ That the " estate " described locality or the corpus of the property, does not hinder this liberal presumption, that a fee by way of in- terest was also intended ; ^ but the word should appear in the very terms of gift, and be what is called an operative word, and not occur by way of mere description or with some dis- connected sense in a different part of the will.^ The opera- tion of the word " estate " may doubtless be restrained by the context, and any presumption that a fee was given is overcome when the whole will discloses an opposite purpose.^ z;. Conboy, 73 N. Y. 230; 8 Conn. 277; 131; Jackson v. Delancey, 13 Johns. I Harr. 2/5; Purcell v. Wilson, 4 Gratt. 537; Archer v. Deneal, 9 Pet. 585; 25 16; 17 Pick. 436. Penn. St. 142; 107 Mass. 590. 1 5 T. R. 292; Sharp v. Sharp, 6 ^ See Shaw, C. J., in Godfrey v. Bing. 230. Humphrey, 18 Pick. 539.' 22 Jarm. 275; 4 Kent Com. 435, « 5«/?-a, § 484 ; 2 Jarm. 277. 436. That a devise of rents, profits, etc., '" The principle is, that where the will carry the inheritance, see supra, word 'estate' is an operative word, it § S°3- passes the fee, and to try whether it be 8 As to whether a devise to a person operative or not the test is to strike it " to be freely possessed and enjoyed " out of the will." Heath, J., in Randall passes more than a life estate, cf. Dreviry v. Tuchin, 6 Taunt. 410. Yet " said V. Barron, 11 East, 220; Lloyd v. Jack- estate" as referring to what precedes is son, L. R. I Q. B. 571; Wright w. Denn, treated as operative. See 2 Jarm. 280, 10 Wheat. 204. 281 ; 6 Taunt. 317. * Supra, § 484; 2 Jarm. Wills, 276, 8 2 Jarm. 282. and Bigelow's note; Hawkins Wills, 592 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. §551 " Property " is a word which may, like " estate," operate to pass the whole inheritance : thus, " a gift of all my property, both real and personal," will presumably carry a fee in the land.^ Under the words " remainder " or " reversion " a re- mainder in fee or a reversion in fee was carried under the old rule ; ^ but the words " residue " and " remainder," as com- monly used in residuary clauses, did not operate with similar force according to English precedent,^ though in this country, as well as under the modern rule, a fee of the residue should generally be presumed.* §55^- Customary Heir ; Heirs Male of the Body, etc. — The common-law heir, or heir general, was, for centuries from the Norman Conquest, favored above the customary heir, so that if gavelkind lands, which by the old Saxon tenure admitted sons equally to the inheritance, were devised to the heirs of any person without an estate in the ancestor, the eldest son alone took the fee simple.^ Lord Coke laid down another rule still more exclusively in favor of the heir general or heir-at-law, where one devised to "heirs male of the body" of a person ;S which rule, however, is now repudiated, so that (as regards estates tail, at least) a devise thus expressed does not require the heir male of the 1 2 Jarm. Wills, 283, and Bigelow's may be regarded as one of the most note; Nicholls v. Butcher, 18 Ves. 193; salutary of the new canons of interpre- Leland v. Adams,. 9 Gray, 171; Colts- tation which have emanated from the mann v. Coltsmann, L. R. 3 H. L. 121 ; legislature." 2 Jarm. Wills, 287. Rossetter v. Simmons, 6 S. & R. 452. Where one holding a fee simple in And see supra, § 484, as to the effect an undivided half of certain premises of other words in sanctioning a fee; devises to A "my undivided half" of also 2 Jarm. Wills, 285. such premises, this gives A a fee simple, 2 2 Ves. 48; I Ld. Raym. 187; 2 although no words of inheritance are Jarm. 284. used. Waterman v. Greene, 12 R. I. '2 Jarm. 285; Denn v. Mellor, 57 483. A testator may give one-third or K ceg_ some other proportion of all his property * Parker v. Parker, 5 Met. 134, so as to vest that undivided interest ab- The abolition of the technical rule solutely in his devisee. Roseboom v. which favored the heir at the cost of Roseboom, 81 N. Y. 356. the devisee wherever a devise was made « Bouv. Diet. " Gavelkind "; Co. Lit. without words of limitation is generally 10 a; Roberts ti. Dixwell, I Atk. 607; commended. "Upon the whole," ob- 2 Sm. & G. 90; 2 Jarm. WiUs, 78. serves Mr. Jarman, " the enlargement * Co. Lit. 246. of the operation of an indefinite devise 593 § 552 LAW OF WILLS. [PART VL body taking by purchase to be heir general.^ This later con- struction conforms to the general presumption that "heirs' male of the body " or "issue male " properly means descend- ants in the male line only ; that is, males claiming through males.2 And while the expression " heirs male " forever (instead of " heirs " forever) in a deed would be superfluous and inaccurate, it is a rule with respect to a devise that this shall be construed to mean "heirs male of the body." It follows that a devise to A and his heirs male forever vests in A an estate in tail male ; ^ or, if a will gives land to the tes- tator's " son. A, and his oldest male heir forever," A takes an estate tail ; * and in a devise to A for life, with remainder to his "heirs by " a particular wife, "heirs by " is equivalent to " heirs of the body by " that wife.^ In short, an estate tail may frequently be created under a devise by words less precise and formal than in a convey- ance ; ^ and upon the theory that the testator intended some qualification upon the inheritance, that intention operates accordingly. § 552. The Same Subject. — The rule of Archer's Case de- serves notice in this connection. This rule is, in substance, that where an estate is limited by devise to A for life, with remainder to the heir male of his body (in the singular num- ber), and to the heirs male of the body of such heir male, A has an estate for life only, while the heir male of his body takes an estate in tail male as purchaser.^ To the same effect 1 Wills V. Palmer, 5 Burr. 2615; N. H. 499; Mclntjrre v. Ramsey, 23 Angell w. Angell, 9 Q. B. 328; Haw- Penn. St. 317. kins Wills, 170. 6 Wright v. Vernon, 2 Drew. 439; 2 Co. Lit. 25 a; Bernal v. Bernal, 3 7 H. L. Cas. 35. M. & Cr. SS9. 6 2 Jarm. Wills, 325. The expression 83 Salk. 336; 2 Jarm. Wills, 325; "lawful heirs " standing alone will not Co. Lit. 27 a; Lindsey v. Colyear, 11 be construed heirs of the body. But East, 548; Hawkins Wills, 172, 173. "heirs lawfully begotten" have in a * Cuffee V. Milk, 10 Met. 366. An devise been treated as creating an estate "estate tail," or " estate in fee-tail," is tail. See 2 Jarm. 325; 7 E11.& B. 295; an inheritable estate which will descend 1 7 Beav. 254. to certain classes of heirs. It is prop- ^ Archer's Case, i Rep. 66; 2 Jarm. erly created by the words " heirs of the Wills, 327; Hawkins Wills, 174; Willis body," of, etc. I Washb. Real Prop. v. Hiscox, 4 My. & Cr. 197. 51, 66. But cf. Dennett v. Dennett, 43 594 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 553 are other cases,^ which thus distinguish between superadded words of inheritance in a devise to the heir male, as here, and a simple devise to A for life, with remainder to the heir male ; for in the latter instance an estate tail in A would be created, and the next heir male would take no estate by pur- chase, the words being construed as words of limitation.^ So, too, if the devise be to A for life, with remainder to the heir male of his body and the heirs or heirs of the body of such heir male, A takes for life only, and the heir male of his body takes an estate in remainder in fee or in tail.* § 553- Xistates Tail in a Devise; "Heirs"; Shelley's Case. — To speak more generally of estates tail. The rule in Shel- ley's Case has been so inflexibly asserted against all indica- tions of what a testator really meant, that many pronounce it a rule of law and not of construction, like the rules which forbid perpetuity and mortmain ; * but the doctrine seems to have hardened by degrees, through the reluctance of the courts to disturb landed titles. The rule of Shelley's Case is simply that where real estate is devised to a person, and there is a limitation besides, either mediate or immediate, to his heirs or the heirs of his body, "heirs" must be taken as a word not of purchase, but of liniitation only, for the marking out the quality of the estate, and that the ancestor takes the whole estate comprised in the gift. If, therefore, the limitation be to the heirs of his body, he takes a fee tail, and if to his heirs general, a fee simple.^ This doctrine has ilbid.; Sisson v. Seabury, I Sumn. 3 CI. & F. 67; 2 Jarm. Wills, 333, and 235; Doe V. Laming, 2 Burr, iioo; Bigelow's note; Curtis v. Longstreth, Canedy v. Haskins, 13 Met. 389. 44 Penn. St. 302; Jordan v. Adams, 9 2 I. Com. 289; Chambers v. Taylor, 2 C. B. N. S. 483; 17 Wall. 639. Shelley's My. & Cr. 387. Case, i Rep. 93, does not directly involve 8 Willis V. Hiscox, 4 My. & Cr. 197; this principle, but discusses it at much Chamberlayne ». Chamberlayne, 6 E. & length; later cases, however, confirmed B. 625. the rule. In a valuable note to 2 Jarm. * Hawkins Wills, Preface; 2 Jarm. Wills, 332, Mr. Bigelow states that this Wills, 332; 4 Kent Com. 245; i Prest. same doctrine had been laid down as Estates, 263. early as 1325, or more than two and a 5 Hawkins Wills, 184, 185; Perrin halfcenturies before Shelley's Case. And V. Blake, 4 Burr. 2579; Jesson v. Wright, see Daniel v. Whartenby, 17 Wall. 642. 2 Bligh, I ; Fetherstone v. Fetherstone, 595 § 5 S3 LAW OF WILLS. [PART VL prevailed since the days of Coke, and probably much earlier, in all transfers of real estate whether by conveyance or by last will and testament. It applies as well whether the limi- tation be expressed to heirs at once or after some intervening estate. And the bearing of the English cases, at least, ap- pears to be to convert inexorably the entire devise to the ances- tor's favor under this rule, no matter by what incident super- added to the technical expression, or by what express and emphatic declaration the testator shows that he meant to give an estate for life merely, and not one of inheritance to the first donee ; and despite any and all attempts which the will may manifest on its face to qualify or abridge the estate in fee or in tail which derives its virtue from words inflexible in meaning.^ No interposing of trustees to preserve con- tingent remainders, no introduction of powers of jointuring or of liberty to commit waste, can vary the construction.^ So, on the other side, with reference to the estate thus expressed to the heirs, language or incidents utterly incon- sistent with an estate by descent, as that the heirs shall take as tenants in common, or according to the ancestor's appoint- ment, or share and share alike, or without regard to sex or seniority of age, all must give way to the stern and unyielding rule of Shelley's Case.^ In other words, the force of the express words of inheritance overpowers all distributive direc- tions with which these words may happen to be coupled, and such inconsistent directions may be rejected as repugnant to the devise. Yet, while in the course of time substance has here so frozen into the form, it seems to have been conceded all the while in principle that whenever it is perfectly clear in a given case, from other language, that the testator used the technical words not according to the rule but contrary to it, 1 See Cockburn, C. J., in Jordan v. v. Harrison, i6 Q. B. D. 85; Jesson v. Adams, supra. Wright, 2 Bligh, I ; Sisson v. Seabury, 2 Poole !>. Poole, 3 B. & P. 627. i Sumn. 235; CrisweU's Appeal, 41 'Jordan v. Adams, supra. And see Penn. St. 288; 5 R. I. 273; Daniel v. Perrin v. Blake, and other cases supra; Whartenby, 17 Wall. 6^% per Mr. Jus- 2 Jarm. Wills, 333, and Bigelow's note ; tice Swayne. Hawkins Wills, 184, 185; Richardson 596 CHAP. II. J DETAILS OF TESTAMENTARY CONSTRUCTION. § 553 his intention will prevail against any mere technical expres- sion. As where he says in effect " by heirs of the body I mean first and other sons successively," etc.-' The effort to force less emphatic language under this exception and thaw, so to speak, the rule in Shelley's Case once more into a rule of construction, has not greatly succeeded however in Eng- land ; 2 for there must be apt and direct language, according to the better opinion, for contradicting the rule which gives the fee to the ancestor. American precedents yield more in this respect certainly than the English ; ^ and, in fact, the rule of Shelley's Case, whose policy, never clearly revealed, is one of bygone times, has been abolished or changed by statute in most of our States,* while in others the courts unaided have long felt competent to regard it as affording a mere presumption and no more, in those unfrequent cases where the question is raised for testamentary construction.^ A mass of our earlier American precedents have lost their drift and momentum in consequence, and to us whose policy is to break up and disperse property among heirs and kin- dred, the English canon, which stands for five centuries undisputed, loses most of its interest except for purposes of judicial comparison.® As a word of limitation, " heirs " is collective, and signifies all the descendants ad infinitum ; but when taken as a word of purchase it may denote particular persons who answer the I2 Ld. Raym. 1561; Goodtitle v. son, 13 R. I. 712, and cases cited; Herring, I East, 264 ; 2 Jarm. Wills, Woodruff v. Woodruff, 32 Ga. 358. ,82. * See statutes, e.g., of New Hamp- 2 See 23 Beav. 184; 2 Jarm. 379; 3 shire, Massachusetts, Connecticut, New C. B. 349; Hawkins Wills, 187. This York, New Jersey, Alabama, and since subject may be studied at length in 2 1850 in nearly all of the United States. Jarm. 332-389. The rule in Shelley's Hawkins Wills, 184, Sword's note; 2 Case applies to "limitations "by way of Jarm. 332, Bigelow's note, and cases remainder, but not to a limitation by cited; 62 N. H. 44. way of executory devise or shifting use, ^ Smith w. Hastings, 29 Vt. 240; Ham- which would vest in the heir of the ilton ». Wentworth, 58 Me. loi; 15 ancestor named as purchaser. 2 Jarm. Ohio, 559; 14 B. Mon. 570; Daniel v. 333. Whartenby, 17 Wall. 639. SFindlay v. Riddle, 3 Binn. 139; 6 Yet the rule of Shelley's Case is still Blake V. Stone, 27 Vt. 475; Slemmer enforced in certain States. u8 Penn. V. Crampton, 50 Iowa, 302; Fulton v. St. 94; 108 Ind. 506; Ryan v. Allen, Harmon,44Md.2Si; Burgesi'.Thomp- 1 20 111. 648; lOl N. C. 162. 597 § 554 ^^^ o^ WILLS. [part vl description at a particular time and in a special sense, accord- ing to the case presented.^ And if technical words are used not collectively for the inheritable successor, but distribu- tively for particular persons, such persons will take as pur- chasers, unless the artificial rules we have considered are too obstinate to yield to the obvious meaning of the instrument.^ § 5 54. The Same Subject : " Issue." — The word " issue " is of itself less precise and technical than " heirs of the body," though collective in sense and serving to point out as objects of the devise all the generations of descendants. The present disposition of the English courts appears, however, notwith- standing former doubts, in favor of making " issue "as synony- mous, so far as possible, with " heirs of the body." Hence the rule that in devises of real estate, " issue " shall prima facie be construed as a word of limitation and equivalent to " heirs of the body." ^ Thus a devise to A and his issue, or to A for life and after his decease to his issue, is taken to vest in A an estate tail ; nor do mere words of distribution, which imply that the issue shall take share and share alike, etc., vary this construction. But while the rule in Shelley's Case scarcely yielded to intention, unless at all events squarely opposed by the cqntext, a more gracious presumption here is found, and " issue " may be converted into a word of pur- chase by various indirect or explanatory expressions, to be found in the reports ; * as, for example, in a devise to A for life with remainder to his issue forever ; ^ and generally wher- ever words of distribution coupled with words purporting a fee are annexed to the gift to issue.^ The new Wills Act, it 1 Fulton V. Harman, 45 Md. 251. , devise to one for life, with remainder to ^ Burges v. Thompson, 13 R. I. 712, issue as tenants in common, followed by 717- a limitation to the heirs general of the » Roddy V. Fitzgerald, 6 H. L. C. issue. Slater v. Dangerfield, 15 M. & 823; Woodhouse v. Herrick, i K. & J. W. 273; Greenwood v. Rothwell, 5 M. 352; Bradley v. Cartwright, L. R. 2 C. & G. 628; Hawkins Wills, 191; Powell P. 511; 2 Jarm. Wills, 411, 412, and v. Board of Missions, 49 Penn. St. 54. Bigelow's note; Hawkins Wills, 192; Contra, 3 Edw. Ch. I. King V. Savage, 121 Mass. 303; 61 Ga. ' Myers z/. Anderson, i Strobh. Eq. 344. 77; Robins v. Quinliven, 79 Penn. St. « See 2 Jarm. Wills, 4H-439, for a 333- minute examination of the English cases; • As where, for instance, there is a Hawkins Wills, 191-196. 598 CHAP. II.J DETAILS OF TESTAMENTARY CONSTRUCTION. § SSS would appear, operates to give the issue an estate in fee in remainder by purchase in every devise to a person for life, and after his decease, to his issue, in words which direct or imply distribution among the issue.^ Our American doctrine favors a flexible construction of the word " issue " according to the whole purport of the will under consideration ; and while courts may take it as prima facie a word of limitation, like " heirs of the body " in a devise, it becomes a word of purchase whenever the context prefers that meaning by using the words in a special or limited sense. ^ And we may add that many of our local acts which change or abolish the rule in Shelley's Case, turn " issue " as well as " heirs " or " heirs of the body " into words of presumable purchase.^ Indeed, American courts at this day are obviously disposed not to apply the rigid, technical rule we have de- scribed against the testator's apparent intent, to cases not literally within its scope.* § 555. The Same Subject: " Children," etc. — While "chil- dren " is not commonly a word of limitation, the influence of the rule in Shelley's Case has been felt in devises where this term was used instead of " heirs of the body " or " issue." An early precedent. Wild's Case, established in England that a devise of real estate to A and his children, A having no children at the date of the will, would vest in A an estate tail, " children " being here construed as a word of limita- tion.^ And whether A had children or not at that date, a devise to A would create an estate tail if such appeared to 1 2 Jarm. Wills, 439; Stat, i Vict. c. derson, 64 Md. 185. Cf.\\^ Penn. St. 26. " Issue " may be shown by the con- 127. Or where " heirs " has the sense of text to mean " children," rather than " children." 109 Ind. 476. And see descendants in all generations. 2 Jarm. 78 Me. 226; 24 S. C. 304. 136 Penn. 440; Ryan v. Cowley, i D. & G. 7. St. 142; 127 Ind. 397. 2 2 Jarm. Wills, 411, Bigelow's notej * Wild's Case, 6 Rep. 17; Hawkins King V. Savage, 121 Mass. 303; Robins Wills, 198; 2 Jarm. Wills, 389; Night- V. Quinliven, 79 Penn. St. 333; Daniel ingalew. Burrell, 15 Pick. 104; i Sumn. ■V. Whartenby, 17 WaU. 639. 359; Hilliary v. Hilliary, 26 Md. 275; '.$■«?>>-«,§ 553. Millerw. Hart, i2Ga. 359. Some States * As where the words " lineal de- refuse to follow this rule. Carr v. Estill, scendants " and " issue " are used, 16 B. Mon. 309; Turner v. Ivie, S instead of " heirs." Henderson v. Hen- Heisk, 222. 599 § 557 ^^^ o^ WILLS. [part vl be the testator's intention ; i though the natural inference would be, if A and his children were then all alive, that the devise was to them all as one class.^ Even the word " son " or " daughter " might be construed as a word of limitation with like effect ;3 or the word "heir" or "child "in the singular.* § 556. The Same Subject: Estates Tail not favored in the United States. — Some of the more subtle and intricate refine- ments of construction relative to estates tail may be studied in the English cases and text-books, where it will be found that the statute of Victoria has pruned away much of the learned excrescence with which centuries had loaded this subject.^ In the United States estates tail are at this day either entirely abolished and converted into fees simple, or so changed as to vest an estate for life in the first taker with remainder over in fee, or otherwise disfavored by the local enactment.® And judicial inclination in this country is to interpret each will, untrammelled by set phrases, and so that the intention of the maker may operate as freely and flexibly as possible within the lines which public policy assigns. § 557. Bequests of Personalty; -whether Absolute or for Life. — In bequests of personalty, on the other hand, there never was a technical rule requiring words of inheritance to be annexed to a simple gift ; and technical expressions which have operated only a life estate or conditional fee, so far as land was concerned, will constitute an absolute gift when applied to personal property. Under a bequest of chattels. 1 Webb V. Byng, 2 K. & J. 669; 2 Jarm. Wills, 401-410, where this sub- affirmed in 10 H. L. C. 171 ; Wheat- ject is fully examined. , land V. Dodge, 10 Met. 502. * Co. Lit. 9 b. n. (4) ; Hawkins A devise to " A and his children for- Wills, 198. ever," or to A and " his children in sue- * 2 Jarm. Wills, 447-561 ; Hawkins cession," will create an estate tail, i De Wills, 199-204; Appendbc, post. G. F. &J. 613; Roper i/. Roper, L. R. « Van Renssalaer v. Kearney, 11 3 C. P. 32. How. 297; I Pet. 510; 4 Kent Com. ^ 2 Jarm. 393. 14, 15; 73 Ga. 215; Leathers v. Gray, ' Robinson v. Robinson, I Burr. 38; loi N. C. 162. ' 600 CHAP. II.J DETAILS OF TESTAMENTARY CONSTRUCTION. § SS8 for instance, A takes an estate free from any apparent limita- tion to the heirs of his body.i But while it is settled by numerous cases, English and American, that the expression " heirs of the body " creates no estate tail in personalty, but rather confers the absolute interest upon the first taker,^ it is doubtful whether the same distinction can avail where the word " issue " is used instead ; ^ for a bequest to " A and his issue " would seem to be governed by the same rules, so far as issue are concerned, as a gift simply to issue ; * at the same time yielding to clear indication that the will meant to give not to A and the issue, as one class, but to A for life and then to the issue by way of remainder.^ At all events, a bequest to a parent and his "children" simply, ^vt^ prima facie to parent and children concurrently ; ® although slight circumstances may show that the testator intended differently ; '^ for the rule in Wild's Case does not apply to personal estate.^ § 558. The Same Subject. — As for expectant interests in personalty under a will, there can be no doubt in modern times, that a person may bequeath personal property to A for life or a designated period, with remainder over to B, and this whether the goods and chattels or the use thereof be given to A by the express terms of the will.^ It is a mere question of intention, under the will ; and the testator thus intending it, A has merely a life or other temporary interest, while B 1 Chatham v. Tothill, 7 Bro. P. C. Myers's Appeal, 49 Penn. St. 11 1. But 453; igVes. 73; 2jarm. 562; Williams see 7 Rich. Eq. 358; Hawkins Wills, V. Lewis, 6 H. L. C. 1013; Hawkins 197, Sword's note. See also 2 Jarm. Wills, 188; Childers v. Childers, 2i Ga. WiUs, 566-573. 377; 5 Ired. Eq. 7; Dunlap v. Garling- * Supra, § 535. ton, 17 S. C. 567; U. S. Dig. 1st Series, * Parkin v. Knight, 15 Sim. 83; Haw- Will, 1733. kins Wills, 197, 198. 2 2 Jarm. 56?, Bigelow's note; Chat- « Crockett v. Crockett, 2 Phill. 553; ham V. Tothill, and other cases supra. De Witte v. De Witte, 1 1 Sim. 41; Can- » Hawkins Wills, 197. It is ruled non v. Apperson, 14 Lea, 553. that if personal estate or chattels real '' Crockett v. Crockett, supra. are given to A for life, and after his ^ 2 Jarm. Wills, 573. decease, to his issue, A takes for life » i Schoul. Pers. Prop. 2 ed. § 138; only, and the issue take in remainder. 2 Kent Com. 352; 2 Bl. Com. 398; Knight V. Ellis, 2 Bro. C. C. 570 ; Hyde v. Parrat, i P. Wms. i ; Smith v. Wynch, Ex parte, 5 D. M. & G. 188; BeU, 6 Pet. 68; 41 N. J. Eq. 89. 601 § SS8 LAW OF WILLS. [PART VI. takes a vested interest by way of remainder.^ And generally speaking (subject, of course, to the rule against perpetuities),^ one may create successive life or temporary interests by his will.^ But perishable articles, or those like wine, corn, and other articles of food or drink, whose use consists in their consumption, constitute usually an exception ; since their use consists in consumption, though no presumption of this kind can be asserted against the obvious force and meaning of the will* Thus a gift of personal property which is consumable, to A for her natural life, coupled with an absolute power to sell it for her own beneiit if she shall see fit to do it, and with no gift over, gives her an absolute interest in the property, and not merely a life interest with power to dispose during her life.^ A testator may give the entire beneficial interest in a bequest to A, and at the same time bequeath the sum in trust, so that the income shall be paid regularly, but the principal withheld at the trustee's discretion.® But where it is the tes- tator's manifest intent to sever the product from its source, a bequest of the income of an estate consisting of personalty will not carry an absolute estate in the principal.^ Whether property be consumable or not, an absolute power of disposal in the first taker carries by presumption the absolute interest, and leaves any subsequent limitation of the property void.^ A contingent and limited power to dispose (as in case of need) might perhaps be otherwise construed ; ^ but an unlimited and positive discretion in disposing of the fund for the indi- vidual advantage of one's self and others confers an absolute interest on that individual, i" * lb. ■ Diehl's Appeal, 36 Penn. St. 120; Ken- 2 Supra, § 21. dall v. Kendall, 36 N. J. Eq. 91, 96; » I Schoul. Pers. Prop. § 138. Smith v. Bell, 6 Pet. 68. * I Schoul. Pers. Prop. § 140, and « Millard's Appeal, 87 Penn. St. 457. cases cited; Perry Trusts, § 547; Ran- ' Bentley v. Kauffman, 86 Penn. St. dall V. Russell, 3 Mer. 194! If the 99; 39 Ch. D. 50. testator meant otherwise, it is easy to ^ jones v. Bacon, 68 Me. 34; How- convert the perishable articles into ard v. Carusi, 109 U. S. 725; 4 Del. money, and then invest for the benefit of Ch. 311. life and remainder parties respectively. » Stevens v. Winship, i Pick. 318. s Bradley v. Westcott, 13 Ves. 445; w Yates v. Clark, 56 Miss. 212; cases Pennock v. Pennock, L. R. 13 Eq. 144; supra. 602 CHAP. II. J DETAILS OF TESTAMENTARY CONSTRUCTION. §559 § 558 a. GiftB to Servants, Strangers, etc. — A devise or legacy is not unfrequently given to a servant or servants of the testator. Where a gift is made to such as may answer that description, and without identifying particular persons as the objects of one's bounty, courts incline to linWt its bene- fit if not to strict " household " servants, at least to such as spend their whole time in the master's employ ; not extend- ing the gift, in its scope, to persons who come back and forth for casual employment and work also for others.^ § 559. Devise or Bequest ; whether Absolute or not. — And yet the decisions on such points seem sometimes to run closely together; and intention affords the only sure clue to their course. A bequest of non-consumable personal property to the testator's wife " for her own use, benefit and disposal ab- solutely," and remainder after her death to a son, has been held to create a life estate in the wife and a vested remainder in the child ; ^ simply because the context of the will in con- troversy made it clear that the testator intended to make a present provision for the one and a future provision for the other. On the other hand, an absolute gift of personal prop- erty to the wife, together with the life income of real estate, and "at her decease the property remaining to be divided equally " among the children, has been pronounced rather an absolute gift of personalty to the wife, with full right to ap- propriate the residue to herself after the estate was settled ; ^ for the gift clearly expressed in positive terms was not to be cut down by any doubtful inference from subsequent words. Where, however, the power of disposal accompanies a bequest or devise of a mere life estate, the power is limited to such disposition as a tenant for life can make, unless other words clearly indicate that a larger power was intended.* A be- iMetcalf». Sweeney (R. I.), 21 Atl. Smith v. Bell, supra. Many of the 365; Townshend v. Windham, 2 Vern. precedents to this effect arise with refer- 546; 9 Jur. 936. ence to the provision made for a testa- " Smith V. Bell, 6 Pet. 68. tor's widow, and are biassed by the « McKim V. Harwood, 129 Mass. 75. disfavor with which the old law viewed , * Brant v. Virginia Coal Co., 93 U. S. the passage of one's lands from his own 326; Boyd V. Strahan, 36 111. 355; family to that of his wife. 603 § 560 LAW OF WILLS. [PART VI. quest unlimited and accompanied by an absolute power of disposition, passes, moreover, the whole interest, notwith- standing precatory words of the will as to the manner of dis- posal.i As a rule, an absolute devise in terms must be construed in connection with other clauses of the will which serve to modify its effect. And a fee which is given in the first part of a will may prove to be so restrained by subsequent words as to reduce it to a life estate.^ But on the other hand, where a devise in fee is plainly given, it is not to be pre- sumed that the testator meant by subsequent words to cut the estate down to one for life unless his language clearly in- dicates such intent.^ Nor is a devise in fee simple the less absolute in interest because the devise stands in trust and a restraint is put upon the annual expenditure of income or the receipt of the principal by the beneficiary.* It is well estab- lished that notwithstanding any formal limitation over, the limitation over is void when the will shows a clear purpose to give an absolute power of disposition to the first taker.* On the other hand, a power of disposition annexed to an express estate for life, or a charge upon it, is not properly con- strued as enlarging the latter into a fee unless inconsistent with an estate for life only.® And, generally speaking, a larger estate will not be implied where a smaller one is ex- pressly granted ; for not only favor to the inheritance, but good sense, opposes such an inference. § 560. Life Estate and Remainder in Gifts ; Executory Devise. — A will may limit real estate likewise, for life or years, and 1 113 Ind. 18; §§ 595-597. " Wetter ». Walker, 62 Ga. 142; Corey " North V. Martin, 6 Sim. 266; v. Corey, 37 N. J. Eq. 198; Hinkle's Ulrich's Appeal, 86 Penn. St. 386; Appeal, Ii6 Penn. St. 490; Jones v. Fearne Conting. Rem. 151. Jones, 66 Wis. 310; Rhode Island " Fairfax v. Brown, 60 Md. 50. And Trust Co. v. Commercial Bank, 14 R. I. see supra, § 518. 625. The gift of an estate for life with * Fairfax v. Brown, 60 Md. 50. absolute power of sale does not create ' Ross V. Ross, I Jac. & W. 154; Ide a fee, unless the power is exercised ■V. Ide, 5 Mass. 500: Jackson w. Bull, during the tenant's lifetime. Russell 10 Johns. 18; no Mass. 432; 4 Leigh, v. Eubanks, 84 Mo. 82. 408; Howard v. Carusi, 109 U. S. 725; 78 Me. 313; 54 Conn. 470; 79 Ala. 63. 604 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 560 then over, and with respect to their time of enjoyment create estates either in immediate possession or in expectancy, so long as the rule against perpetuities is not violated. And remainders under a will may be vested or contingent ; though, in case of doubt, the former and simpler should in these days be preferred in construction. ^ Under the doctrine of execu- tory devise, moreover, the limitation of a future estate or interest in lands or chattels is permitted by will where limita- tions in a deed inter vivos would have failed for informality ; yet once more we should exclude the executory devise in con- struction if the estate can fairly pass as a remainder ; ^ or if an absolute estate can be properly inferred in the first taker.^ We find the corresponding term " executory bequest " well applied in the gift of personal property, wherever a future bequest is made. For while at common law there could be no limitation over of chattels, or successive interests, we find gifts for life or temporarily and then over, or with accumula- tion of income in the hands of trustees, and to vest hereafter 1 Olney v. Hull, 21 Pick. 311; Miller V. Keegan, 14 Ind. 502; 2 Grant Cas. 28; Smith V. West, 103 111. 332; i Jarm. Wills, 873; 2 ib. 88; De Vaughn V. McLeroy, 82 Ga. 687; 41 Kan. 424. One reason for such a construction at common law is that the owner of the first particular estate may defeat a con- tingent remainder, and thus make the gift over by the will a dead letter. 2 I Jarm. Wills, 864; Hawley w. Northampton, 8 Mass. 3; 57 Conn. 163. ' Howard v. Carusi, 109 U. S. 725, 730, and cases cited; 102 N. Y. 128. A vested remainder is where a pres- ent interest passes to a certain and defi- nite person but to be enjoyed in futuro; and there must be a particular estate to support it. A contingent remainder is where the estate in remainder is liijiited either to a dubious and uncertain per- son or upon the happening of a dubious and uncertain event. A contingent re- mainder, if it amount to a freehold, can- not be limited on an estate for years, nor any estate less than a freehold. A contingent remainder may be defeated by the determination or destruction of the particular estate before the contin- gency happens; hence, trustees are appointed to preserve such remainders. An executory devise is such a disposition of real property by will, that no estate vests thereby at the death of the devisor, but only on a future contingency. It differs from a remainder in three mate- rial points: (i) it needs no particular estate to support it; (2) a fee simple, or other less estate may be limited by it after a fee simple; (3) a remainder may be limited, of a chattel interest, after a particular estate for life in the same property. The law will not con- strue a limitation in a will into an ex- ecutory devise when it can take effect as a remainder; nor a remainder to be contingent when it can be taken to be vested. The rule is that estates shall be held to vest at the earliest possible period, unless the testator's intent be clearly manifested to the contrary. Mr. Justice Swayne in Doe v, Considine, 6 Wall. 458, 474, and cases cited. 605 § 56 1 LAW OF WILLS. [PART VI, in beneficial enjoyment permitted in modern times, and. in fact very common, within the usual bounds which limit accumulation and postponement ; and if, as formerly, re- mainders in personalty cannot, strictly speaking, be created, the future limitation is good, at all events, by way of execu- tory bequest.^ § 561. Devise or Bequest by Implication. — A devise, whether absolutely or for life, will be raised by implication under a will, where the context requires it and the devise is not express in terms. Thus the gift of the rest and residue of one's estate to his children after the death of the wife creates a life estate in the wife by implication.^ And again, the will may so refer to one as heir, as to give him the fee without words of express devise ;3 not to repeat the well- known maxim that only by an express devise or necessary im- plication can the heir-at-law be disinherited.* Implication is excluded, however, where a devise sufficient in effect was express ; it is not deducible from mere silence ; nor can it be admitted at all except as a means of carrying out what the testator appears on the whole to have really meant, but failed somehow to express as distinctly as he should have done.^ As already seen, while a larger estate is not to be implied where a smaller one is expressly given, or vice versa, an abso- lute gift may be implied, rather than any temporary interest, from the incidents of a jus disponendi expressly annexed to 1 See 2 Jarm. Wills, 879. future estates, whether vested or contin- The subject of executory devises and gent, are descendible. 6 Dem. (N. Y.) bequests may be examined at length in 220. I Jarm. Wills, 864-881, and Bigelow's 2 Macy v. Sawyer, 66 How. Pr. 381. notes. And see Sisson v. Seabury, i Sumn. A valid executory devise cannot, at 235; Hill v. Thomas, 11 S. C. 346; i common law, be limited after a fee, Jarm. Wills, 533; Masterson w. Towns- upon the contingency of the non-exe- hend, 1 23 N. Y. 458. cution of an absolute power of disposi- * 3 Keb. 589. tion vested in the first taker, and such * Supra, § 479; i Jarm. 532. a limitation over is void. Van Home ^ Patton -u. Randall, i J. & W. 196; V. Campbell, 100 N. Y. 287. And see Rathbone v. Dyckman, 3 Paige, 27; i IS R. I. 78. Jarm. Wills, 526, 532, and Bigelow's Local statutes sometimes provide that note; I Stra. 427; Adams v. Adams, I 606 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § $62 the gift.i So, too, are gifts in favor ultimately of third per- sons constituting a class implied frequently, from powers of selection and distribution among them which the will confers upon the first taker, but which the latter has failed to exer- cise ;2 but an express gift over in default of the exercise of such power precludes of course all implication.^ In short, a gift by implication may be presumed wherever the conclusion is irresistible that the testator so. intended it.* § 562.' Gift in General, whether Vested or Contingent in Interest. — As a rule, a devise or bequest is to be presumed vested, rather than contingent in interest; for whether the property be real or personal, the law favors the vesting of estates ; at the same time that the manifest purpose of the will cannot be thus subverted. A will takes effect naturally on the death of the testator; consequently interests under that will, whether immediate or prospective in term of enjoy- ment, vest prima facie at once, and words of futurity contained in the gift should be taken" in the sense that no condition precedent is imposed.^ Thus, if the gift in A's favor is to be Hare, 537; Nickerson v. Bowly, 8 Met. involves and implies something else as 424; Rawlins's Trusts, 45 Ch. D. 299. contemplated by the person using the Unless convinced that the testator expression, or the implication may be really intended to make the gift, a founded upon the form of gift, or upon court should not construe in favor of a a direction to do something which can- gift by implication. Bishop v. McClel- not be carried into effect without of land, 44 N. J. Eq. 450. necessity involving something else in It appears sometimes to be considered order to give effect to that direction, or that the rule of implication does not something else which is a consequence apply to bequests as in devises. See I necessarily resulting from that direc- ted. Eq. 45. But admitting that limi- tion." Lord Westbury, in Parker v. tations are less to be favored in gifts of Tootal, 11 H. L. C. 143,- 161. personalty than under a devise of land, * Supra, §§ S57~S59- there seems no good reason why a life ' 2 Jarm. Wills, 551 ; Brown v. Higgs, interest or an absolute interest may not 4 Ves. 708, 5 Ves. 495, 8 Ves. 561; be implied under a bequest where the Butler v. Gray, L. R. 5 Ch. 30. intention of the will would otherwise ' Roddy v. Fitzgerald, 6 H. L. C. be thwarted. See I Jarm. 544. But 823. the next of kin, like the heir, is not to * Robinson v. Greene, 14 R. I. 181 ; be displaced without express words or Blake's Trusts, L. R. 3 Eq. 799. necessary implication. 3 Ves. 493; * I Jarm. Wills, 799-863, Bigelow's supra, §§ 479-482. note, and numerous cases cited; Foster "Implication may either arise from v. Holland, 56 Ala. 474; Dale v. an elliptical form of expression, which White, 33 Conn. 294; 43 Md. 307; 83 607 § 562 LAW OF WILLS. [PART VI. set apart or payment made him at some future time ; or if A is to take a fee or the capital fund or residue after the termination of a life estate or some other beneficial interest therein of a temporary kind in B ; in these and similar instances the intention presumed from the language of the will is to . postpone not the vesting of A's interest, but the time of beneficial enjoyment, and consequently his interest vests at once as well as B's.^ Any present vested interest in the income carries prima facie a vested interest in those who shall finally take the capital, nor does delay in settling the testator's estate and paying over prevent a legacy from vest- ing at the time of the testator's death.^ Directions to sell at a late period prescribed are consistent with a vested remainder.^ Words and expressions literally contingent in import, or those at least to which courts are wont to give that technical meaning, bend to this construction in favor of vesting the estate or interest upon due regard for the whole scope and tenor of the will.* The simple postponement of enjoyment under the gift does not, in other words, create of itself a con- tingency ; for while a gift when (or, rather, if) one reaches a certain age or marries is necessarily uncertain in event, a gift upon the death of another person hinges upon an event which is sure sooner or later to happen ; hence the interest may be presumed vested in the latter, though not in the former case, because the event here is certain.^ And so far is this rule Ky. 481; 57 Conn. 295; n6 Ind. 498; to treat the rule as to the vesting of Goebel v. Wolf, 113 N. Y. 405. gifts by will differently, according as the As to the precise distinction between subject-matter is personal estate, real the terms " vested " and " contingent," estate, or, once more perhaps, a legacy there is some discussion; and the logi- charged on land. cal antithesis may not be quite the same 1 2 Jarm. Wills, 799, 835, 837, Bige- in gifts of land as of personalty. The low's note, and numerous cases cited; general doctrine in this country is that Monkhouse v. Holme, I Bro. C. C. a postpohement will not of itself create 300. a contingency, unless it be upon an 2 Dawson v. Killet, I Bro. C. C. 124; event of such a nature that the testator 9 Cush. 516; Birdsall v. Hewlett, I must be presumed to have made no Paige, 32; Giff.ird v. Thorn, I Stockt. gift unless the event happened, or, as 702; Scott v. West, 63 Wis. 529. it is sometimes put, unless the time be ' De Vaughn v. McLeroy, 82 Ga 687. annexed to the substance of the gift. ' I Jarm. Wills, 805, and cases cited; - I Bradf. (N. Y.) 154. See Hawkins Colt v. Hubbard, 33 Conn. 281. Wills, 223. The English disposition is ' ggg Thomas v. Anderson, 6 C. E. 608 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 562 carried, that whenever the prior estate will terminate by an event certain, the remainder must be presumed a vested one, even though the event may happen before the expiration of the estate limited in remainder.^ On the other hand, no favor to vested interests or theory should defeat the plain intention of the will in controversy. Nor can the absurd, inconvenient or illegal consequences of treating the interest as contingent and postponed prevent such a construction if the testator has clearly limited the estate in terms of contingency ; ^ nor the probability that the testator in so limiting the estate has misapprehended his power of disposition ; ^ unless, indeed, too strict an adherence to the letter of the instrument would defeat the spirit of its provisions.* A gift made expressly to take effect on a contingency will not arise unless the contingency happens ; and, per contra, a vested gift is not divested unless all the events which are to precede the vesting elsewhere concert.^ A gift with limita- Green, 22; Taylor v. Mosher, 29 Md. 443; 117 Penn. St. 14. 1 Kennard v. Kennard, 63 N. H. 303. Here the reversion to A was on the " decease or marriage " of the testator's widow; and A's widow (not remarry- ' I Jarm. 821 ; Holmes v. Cradock, 3 Ves. 317; Richardson v. Wheatland, 7 Met. 171 ; Wallace v. Minor, 86 Va. 550. ' Vessey v. Wilkinson, 2 T. R. 209; Sears v. Russell, 8 Gray 86; Donohue V. McNichol, 61 Penn. St. 73. Vesting ing) survived A; yet A's reversion held postponed to the death or mar- vested. "It is the present [certain] riage of the widow in 67 Md. 465; 26 right of future enjoyment whenever S. C. 450. This was taken to be the the possession becomes vacant, and not testator's meaning, the certainty that the possession will * I Jarm. Wills, 824; Bradford v. become vacant before the estate limited in remainder determines, that distin- guishes a vested from a contingent re- mainder." lb. 310. And see Lenz v. Prescott, 144 Mass. 505. " Die before being entitled " held, as to remaindermen to mean "die before they come into possession.'' 31 Ch. D.75, Foley, Doug. 63; Hawkins Wills, 223. 6 Co. Lit. 219 b; 7 East, 269; i Jarm. 827. If we consicfer our pohcy as favoring all the interests under a will as vested rather than contingent, the precedents are not so difficult to reconcile as their literal expression imports. Thus, a gift Legacies though described as not to be is to A if he reaches a certain age or paid until one year after A's death, vest marries; and here it may be presumed at once under the will. Pond v. Allen, that the testator meant that unless A 15 R. I. 171. The word "heirs," when reached that age or married, he should uncontrolled, has the effect of vesting a not have it; the gift is therefore con- legacy which would otherwise be con- tingent, or coupled with a condition tingent. 117 Penn. St. 14. precedent to vesting. See Leake &. 609 §563 LAW OF WILLS. [part VL tion even upon a contingency becomes absolute upon a failure of the contingency.^ And interests under a will may vest immediately upon the testator's death, subject to a pos- sible divestment afterwards.^ S 563. Beneficiaries: 'when ascertained. — At what time beneficiaries should be ascertained is an important point to consider. As vested interests, whether by way of reminder or otherwise, are preferred in construction to those which are contingent, so should the ascertainment of any class which is described in the will be referred to the earliest possible period consistent with a fair interpretation of that will. Thus, to take the word "heir." If the will gives to the testator's own heir, the gift vests naturally at the testator's own death ; if to the heir of A, then at A's death ; and in either case, as Robinson, 2 Mer. 363; Hawkins Wills, 224. And the same might be true of members of a class. lb. But if the will appears to give to A or to members of a class, and merely adds a direction as to the time of payment, payable at majority, divided among them for con- venience at some future period stated, etc., and the more so if the income is meanwhile to be paid to the beneficiary or beneficiaries, it is not clear that the testator meant to annex the time as an essential to the substance of the gift; hence the doubt is resolved in favor of vesting the gift or gifts. See Hawkins Wills, 225, 232; Lister v. Bradley, I Hare, 12. As for devises of real estate. Best, C. J., may be quoted : " It has long been an established rule for the guidance of the court, that all estates are to be hold- en to be vested, except estates in the devise of which a condition precedent is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will." Duffield v. Duffield, I D. &a. 311. If real estate is devised to A " if" or " when " he shall attain a given age, with a limitation over in the event of his dying sooner, the attainment of that 610 age is held to be not c condition pre- cedent but a condition subsequent, and A takes an immediate vested estate subject to be divested upon his death under the specified age. Fhipps v. Ackers, 9 CI. & F. 583; I B. & P. N. R. 324; Roome v. Phillips, 24 N. Y. 465. This construction appears sometimes favored in bequests of personalty, espe- cially if real and personal property are embraced in one gift. 12B. Mon. 117; Hawkins Wills, 240. And see c. 4. The use of the word "proviso" in modern times favors the idea of a fee upon trust rather than a devise upon condition. Whether words In a devise shall or shall not constitute common- law conditions whose breach will work a forfeiture and defeat the whole de- vise, must be gathered from the whole instrument and not from particular ex- pressions. Stanley v. Colt, 5 Wall. 119. See also Cropley v. Cooper, 19 Wall. 167; 3 Pet. 34; 2 How. 43. A stranger cannot take advantage of the breach of a condition subsequent under a will. Webster v. Cooper, 14 How. 488. 1 Derickson v. Garden, 5 Del. Q. 323- ^ Neilson v. Bishop, 45 N. J. Eq. 473, CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 563 soon as there exists any one who answers the description of heir.^ This rule of presumption avails for gifts of per- sonalty as well as real estate, so convenient is it to apply ; and slight circumstances or mere conjecture that the tes- tator meant otherwise should not induce the court to super- sede it.2 In short, estates, legal or equitable, which are given the will, should be regarded as vesting immediately upon the testator's death unless an intention to the contrary is mani- fest.s But if the will sets clearly in another direction, its lead must be followed ; as where the gift is to such person as shall, at the specified time after the testator's death, be the "heir" in question; or where it is in favor of the "heir" of some person already dead at the date of the will ; or where, once more, to take the instance of a gift whose object is wholly contingent, Und is devised to such person as may at some designated period after the devisor's death be his " heir " of the name of H.* 1 Pilkington v. Spratt, 5 B. & Ad. 731; I Vern. 35; 2 Jarai. Wills, 62, 88; Minot v. Tappan, 122 Mass. 38. Aside from the rule in Shelley's Case, therefore, a gift of land to A with re- mainder to his heirs vests the remainder immediately in the heirs apparent. Moore v. Little, 41 N. Y. 66; Morti- mer V. Slater, 7 Ch. D. 322; 4 App. Cas. 448. By "my heirs-at-law " in a will, the testator is presumed to mean that those shall take who are his heirs- at-law at his decease. Whall v. Con- verse, 146 Mass. 345. A testator gave property in , trust for his children, with provisions for their support and for vesting in each absolutely on his suita- ble marriage. One child died unmar- ried; yet it was held that this child's share had vested, and that marriage was not a condition precedent. Toner V. Collins, 67 Iowa, 369. In 40 N. J. Eq. 443 it was held that the estate vested in children at the time of the testator's death and not at the time of distribution. Where a gift is to nephews and nieces, 61 with provision for representation in case any one of them should predecease the testator, the children of a nephew who was dead at the date of the will are not included. 43 Ch. D. 569. 2 Boydell v. Golightly, 14 Sim. 327; 14 M. & W. 214; Campbell v. Rawdon, 18 N. Y. 412; Buzby's Appeal, 61 Penn. St. 114; 5 Jones Eq. 267; Abbott v. Bradstreet, 3 Allen, 587. And see Dove V. Torr, 128 Mass. 38, for a marked instance where the rule was ap- plied notwithstanding the words, " who may then be entitled," etc., after refer- ring to a daughter's marriage or death. See also 26 S. C. 561. "Scott V. West, 63 Wis. 529; 113 111. 637; 40 N. J. Eq. 443; § 562. * Wrightson v. Macaulay, 14 M. & W. 214; 2 Jarm. 89; Donohue v. McNichol, 61 Penn. St. 73; Sears v. Russell, 8 Gray, 86; Evans w. Godbold, 6 Rich. Eq. 26. An inimediate gift to the " heirs of A," who is recognized in the will as living, is presumed to be a gift to those persons who would be his heirs if he were dead at the time of the gift. § 563 LAW OF WILLS. [PART VI. A devise or bequest to "next of kin" means also those prima facie who prove such at the death of the person whose next of kin are spoken of.^ Thus, if the gift be to A for Hfe, and after his death to the testator's next of kin, the persons to take as next of kin should be ascertained at the death of the testator, and not at the death of A. And it follows, that if the gift be to A for life, and after his decease to the next of kin of the testator, and A proves the sole next of kin when the testator dies, the gift will go to A absolutely.^ Words of futurity alone do not exclude this presumption of immediate vesting, nor will it yield to doubtful conjecture ;^ and while the clear language of a particular will may require the next of kin to be ascertained instead at the period of distribution, courts will favor no surmise of this kind.* But rather than permit a gift to lapse from the failure of objects when the will takes effect, courts have sometimes construed a bequest to the next of kin of one who predeceased the testator as re- ferring to next of kin computed at the testator's own death.* A legacy, by the general familiar rule of law, lapses if the legatee named dies before the testator.® A legacy to parties jointly might have this same disastrous effect by the prede- cease of one or more of them. But where an entire legacy Hawkins Wills, 92, Sword's note; 3 ^ HoUoway v. HoUoway, 5 Ves. 399; Sandf. Ch. 67; Campbell v. Rawdon, 4 K. & J. 498; Ware v. Rowland, 2 18 N. Y. 417; 2 Dev. Eq. 517; 6 Ala. Phill. 635. 36; 18 B. Mon. 370; Bailey v. Patter- ' 16 Beav. 507; 17 Beav. 417; 3 son, 3 Rich. Eq. 158. Where the de- East, 278; Rayner ». Mowbray, 3 Bro. vise is to A for life, remainder to the C. C. 234. right heirs of the testator, and A is the * Bullock v. Downes, 9 H. L. C. I ; testator's heir at law at his death, A White v. Sprmgeth, L. R. 4 Ch. 300; takes the property absolutely. Hollo- cf. Wharton v. Barker, 4 K. & J. 483; way w. HoUoway, 5 Ves. 399; Hawkins Hawkins Wills, loi, 102. But cf. the Wills, loo. But a gift to the testator's case of an annuity, 45 Ch. D. 453. "surviving heirs" at the death of his 6 Wharton u. Barker, supra. For widow, is held to mean those who should the same rule in a substitutional bequest at her death be his heirs. Evans v. to " heirs," see Gamboa's Trusts, 4 K. & Godbold, 6 Rich. Eq. 26. See as to J. 756. But cf. Rees Re, 44 Ch. D. "surviving," § 565. 484. 1 Hawkins Wills, 99; Gundry i/. Pin- "Children," we have seen, means ninger, i D. M. G. 502; Bullock v. prima facie those existing at the testa- Downes, 9 H. L. C. l; 5 Hare, 557; tor's death. Supra, % 529. Letchworth's Appeal, 30 Penn. St. 175; * Schoul. Exrs. § 467. Brent v. Washington, 18 Gratt. 555. 612 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 564 is given plainly to a class, it will be taken by the individuals who compose that class on the death of the testator.^ § 564. The Same Subject : " Dying without Issue," etc. — The influence of this same policy in favor of an early vesting is perceived m the modern construction of such phrases as " die without issue." By the old rule, as applied to gifts of real and personal estate alike, the words " die without issue " meant prima facie an indefinite failure of issue ; that is to say, not merely at the death of the person spoken of, but at any time afterwards.^ Thus, if real estate were devised to A, with a limitation over, in the event of his dying without issue, A took an estate tail with remainder over, while in a corre- sponding bequest of chattels the gift over was void for re- moteness, and A took the absolute interest.^ But this enlarged construction of technical words, so as to mean posterity, must often have defeated a testator's actual purpose ; and various exceptions came accordingly to be recognized.* In some American States the English rule was either re- jected altogether, or else allowed within very narrow limits 1 Hall V. Smith, 61 N. H. 144, and cording to the kind of property given; cases cited. for under a devise of realty it meant the * 8 Co. 86; Beauclerk v. Dormer, 2 same as "dying without issue," indefi- Atk. 313: Candy v. Campbell, 2 CI. & nitely, but under a bequest of chattels F. 421; 2 Jarm. Wills, 497 et seq. and only a definite failure, i.e., without issue Bigelow's Am. note; Allen v. School at the death of the person spoken of. Fund, 102 Mass. 262; Vaughan v. Forth u. Chapman, I P. W. 663; 3 Dickes, 20 Penn. St. 509; Arnold v. Paige, 30; 33 Md. II; Hawkins Wills, Brown, 7 R. I. 188; 6 Cold. 479; Hux- 213, Sword's note, and cases cited. Some ford V. Milligan, 50 Md. 542; 4 Kent States construe it as a definite failure of Com. 280. issue in either case. « Hawkins Wills, 206. * One admitted exception was where Other expressions were treated as the context of the will disclosed an in- equivalent in effect. Thus, " die with- tention on the testator's part that the out having issue." 13 C. B. 445; ultimate devise should take effect at the Vaughan v. Dickes, 20 Penn. St. 509. death of the first taker; where, for Or "die without children," so far at instance, there was a gift over to the least as a devise of land was concerned; survivors or survivor; or the gift was Hawkins Wills, 206; 5 Bing. 243; I K. expressly to take effect on the first & J. 156; but not so readily in a bequest taker's death. See Hawkjns Wills, 206- of chattels. 40 Penn. St. 18. 212; 3 B. & Aid. 546; l-K. & J. 156; As for the words, " die without leav- 18 N. H. 321; 2 My. & K. 441 ; § 565. ing issue," the construction varied ac- 613 § S6S LAW OF WILLS. [PART VI. long ago.i And public policy settling gradually in favor of the more constrained and natural meaning of the phrase, legislation, both in England and many parts of the United States, has at length reversed this presumption altogether. In devises and bequests of real or personal estate, the expres- sions " die without issue," "die without having (or 'leaving') issue," and any other equivalent words, are construed at the present day to vaezn prima facie a failure of issue at the death of the person whose issue are spoken of, and not an indefinite failure of issue.^ In still other instances courts lean against raising or ex- tending a contingency, and postponing the period of vesting. Thus, if personal estate be given to the children of A, to vest in them respectively on attaining a given age or marriage, a gift over will be construed, if possible, so as not to defeat their vested interests.^ But a vesting, by the terms of the will " from and after " some event later than the testator's death is by way of postponement.* § 565. Substitution, Survivorship, etc. — Wherever there is a bequest, whether immediate or deferred, to individuals, it is a rule that, be the legacy immediate or by way of remainder, a gift over of the legacy or share of a legatee dying under specified circumstances, shall take effect if the event happens in the testator's lifetime.^ Thus, if the bequest is to A, but * Bullock V. Seymour, 33 Conn. 290; (several of them prior in date to the Parish v. Ferris, 6 Ohio St. 563; 14 English Wills Act) cited in Hawkins B. Mon. 663; 16 Ga. 548. Slight cir- Wills, 214, Sword's note; 4 Kent Com. cumstances to exclude operation of the 280. See also Phelps v. Phelps, 55 rule are sometimes seized upon. Our Conn. 359 ; Wills v. Wills, 85 Ky. 486. legislation against estates tail (see .r»/;'a, * Maitland v. Chalie, 6 Mad. 250; § 556) works counter to the presumption Hawkins Wills, 217. "Die without of the old law. For the American leaving issue " is not presumably to be cases (which are in great confusion, construed " die without having had each jurisdiction taking its own course), issue." 4oCh. D. 11. "Die without see passim, Hawkins Wills, 205-216, lawful issue " confined by intent of the Sword's note; 2 Jarm. Wills, 497 et will to the time before grant of the ab- seq., Bigelow's note. solute interest, in Lewin v. Killey, 13 ^ Such is the purport of Stat. I Vict. App. Cas. 783. c. 26, § 29 (1837). And see the sev- * Jobson Re, 44 Ch. D. 154. And eral codes of New York, New Jersey, see 150 Mass. 225. Virginia, South Carolina, Wisconsin, ^ Hawkins Wills, 253; Willing v, Missouri, Minnesota, and other States Baine, 3 P. Wms. 113; Walker v. 614 CHAP. II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § $65 if he die under twenty-one, to B, and A dies, in fact, before the testator, the gift to B takes effect. Or if the bequest is to A for life, and after his death equally between B and C, with a gift over of the share of either dying in the lifetime of A, and B or C dies in the lifetime of A, and while the testa- tor is alive, the gift over takes effect. For the argument that there can be no legacy to any one until the will speaks, and consequently no substitution, cannot here avail. Upon this proposition are grafted some very nice exceptions, as in gifts over to executors and administrators of the legatee, which are not immediate, and where the bequest is to a class whose members cannot be ascertained during the testator's life ; these we need not trace out.^ The use of " or " is fre- quent to denote a substituted gift, whether of personalty or of real and personal estate together; the period of substitu- tion referred to being usually deemed that of the testator's death.2 If a bequest is to one person, and " in case of his death " to another, the gift over takes effect prima facie only in the event of the prior legatee's death before the period of pay- ment or distribution ; ^ agreeably to the rule which favors an early vesting and the prompt settlement of the decedent's estate. Moreover, a gift to A, and, in case of his death, to B, is, if possible, narrowed so as to give A the absolute in- terest, unless he dies before the testator.* As to gifts made to persons who shall be surviving at some period not clearly specified in the will, the inclination of the courts was, formerly, to refer the survivorship prima facie to the period of the testator's own death.^ Such is still the Maine, I J. & W. I ; Mowatt z/. Carrow, 658; 25 Ch. D. 212; O'Rourke v. 7 Paige, 336. Even though the legatee Beard, 151 Mass. 9. That "ot "is fre- were dead when the will was made, the quently read " and " out of respect to a rule takes effect. 16 Beav. 56. testator's intent, see § 477. iSeeHawkinsWills, 245-254, Sword's » Ommaney z/. Bevan, 18 Ves. 291; note, where various precedents, some- Home v. Pillans, 2 M. & K. 15; Haw- what discordant, are brought together; kins Wills, 254. the context and general scope of the * Home v. Pillans, 2 M. & K. 23; will resolving all such disputes at last. Stevenson v. Fox, 125 Penn. St. 568; And see 2 Jarm. Wills, 497, 154, Bige- Webb v. Lines, 57 Conn. 154. low's scholarly note; Vn. ^21 et seq. 5 Hawkins Wills, 260. 2 Wingfield v. Wingfield, 9 Ch. D. 615 S6S LAW OF WILLS. [part VL prevailing preference in construction where real estate is de- vised ; ^ and it holds in many of the United States, irrespective of the kind of property given ; ^ but the late English precedents refer words of survivorship prima facie to the period of pay- ment and distribution instead, where personal estate is be- queathed to certain persons by name, or to a class of persons as tenants in common, and the survivors of them.* Into the long-drawn controversy over this change of construction we shrink from entering.* Words of survivorship, may, agreeably to the true intent of the will in its full scope, refer to the death of some party subsequent to the testator's own death.® 1 Doe V. Priggs, 8 B. & Cr. 231; 2 De G. J. & S. 437; Hawkins Wills, 262. But see Wigram, V. C, in Buckle V. Fawcett, opposing any distinction between real and personal estate on this point. A devise to a class takes effect prima facie in favor of those who con- stitute the class at the testator's death. 2 Jarm. 154, and Bigelow's note; supra, §529- 2 Moore v. Lyons, 25 Wend. 119; Ross V. Drake, 37 Penn. St. 373; Hawkins Wills, 261, and Sword's note; Martin w. Kirby, 11 Gratt. 67; 5 Cush. 153; 2 Jarm. Wills, 154, and Bigelow's note; Davis v. Davis, 118 N. Y. 411. ' Cripps V. Wolcott, 4 Mad. 1 1 ; Haw- kins Wills, 261. The authority of Cripps V. Wolcott is rejected in some American cases, like Moore v. Lyons and Ross w. Drake, supra. And see 2 Jarm. Wills, 728-751. In Denny v. Kettell, 135 Mass. 138, where a fund consisting of real and personal property was left in trust, to go after the payment of certain legacies and the termination of certain life es- tates, in equal portions to the testator's "surviving nephews and nieces," the court preferred to reckon at the period when the time for final distribution came, rather than at the date of the testator. " The question to what period survivorship is to relate,'' observes Allen, J., "must depend rather upon 6 the apparent intention of the testator in each case, than upon any rigid rule. . . . This residue was not ascer- tainable till the time came for its dis- tribution. The word 'surviving' more naturally relates to that time when the residue was to be ascertained and dis- tributed." And see 45 N. J. Eq. 426. * Mr. Jarman, after a patient and laborious examination of the English precedents which have thus turned the course, concludes his chapter, like its commencement, with a caution. " This word ' survivor,' " said Wood, V. C., " is certainly one that ought to be avoided by any person who is not a consummate master of the art of conveyancing, for 1 suppose no word has occasioned more difficulty." 33 L. J. Ch. 532, quoted in 2 Jarm. Wills, 751. Limitations upon which a devise is to take effect by survivorship rarely refer to death while the testator is alive; but the persons who are to take as survivors are meant to survive a death which happens after the testator's own decease. Crane v. Cowell, 2 Curt. 178. ° § 563. As where the word " sur- viving " would otherwise be unnecessary and meaningless. 148 Mass. 576; 126 Penn. St. 562; Roundtree v. Round- tree, 26 S. C. 450. And see Bowman Re, 41 Ch. D. 525. 16 CHAP, II.] DETAILS OF TESTAMENTARY CONSTRUCTION. § 566 § 566. Interest, whether by Way of Joint Tenancy or Co- Tenancy ; Husband and "Wife; eto — It has long been the rule in England, notwithstanding a former leaning of the courts against any joint tenancy in legacies of chattels, that either a devise or a bequest to several persons by name, or to a class, shall per se be presumed to create a joint tenancy among them.i This rule applies to children, issue, next of kin, and other classes of beneficiaries commonly found in a will ; but not where the reference is to statutes of descent and distri- bution, and the right per stirpes enters plainly as an element of the gift.2 Words which import distinctness of interest or equal division among the objects of the gift will also exclude the rule ; as for example, in a devise or legacy to several or to a class "equally," or "between," or "among" them, to persons respectively ; ^ and wherever the intent is manifest to create a tenancy in common, or co-ownership, that intent must prevail.* We may add that, in many of the United States, joint tenancy, with its peculiar incident of survivor- ship, is now cut down or abolished, though with reference more especially to real estate, and so as to leave the rule still in force where legacies and personalty are to be construed ; ^ and in England the later cases appear to lean in favor of a tenancy in common.® The point of distinction here to be noted is, that, in case of a joint tenancy, the failure of a devise or bequest as to any one of the parties named will carry the gift to the other or others by force of survivorship, that striking incident of 1 I Schoul. Pers. Prop. § 157; Haw- I Ch. D. 460. But not where some kins Wills, iii; 5 T. R. 562; Bullock have a vested and others a contingent V. Downes, 9 H. L. C. i ; Campbell v. interest. 2 Jarm. 256; Hawkins Wills, Campbell, 4 Bro. 15; 2 Kent Com. 35 1 ; 11 1; i D. F. & J. 74. Westcott V. Cady, 5 Johns. Ch. 334; ' Bales v. Cardigan, 9 Sim. 384; 2 Jarm. Wills, 251-266; Atcheson v. Westcott v. Cady, supra; Martin v. Atcheson, 11 Beav. 485. Smith, 5 Binney, 18; Hawkins Wills, 2 Bullock V. Downes, supra. Al- 112, and Sword's note; 2 Jarm. Wills, though the interests of members of 258, and Bigelow's note; Walker v. the class vest at different times, the rule Dewing, 8 Pick. 520; 3 Desaus. 288. applies. Hawkins Wills, 11 1; 2 Jarm. * See supra, §§ 538-540. 255; II Hare, 196. It also applies to « Hawkins Wills, iii, and Sword's a gift to children by way of remainder note; 4 Kent Com. 361, 362. after a prior life estate. 2 Jarm. 255 ; * 2 Jarm. 258. 617 § 566 LAW OF WILLS. [PART VL the relation ; but when, on the other hand, the gift is to tenants in common, the death of one of them before the testator, or the failure of his share from some other cause, will produce a lapse with the usual result in favor of heir, next of kin, or residuary devisee or legatee, as the case may be.^ If the gift vests at the testator's death, as where the gift is to objects as a class, each survivor takes his share, and the survivorship incident becomes exhausted.^ Another rule in this connection which yields as usual where the context requires it, is that where a devise or be- quest is expressed to a husband and wife and another or others, it will be presumed that husband and wife were in- tended to take a single share, as one person, and not a share each; and this whether such gift was created by way of joint tenancy or a tenancy in common.* The source of this maxim may, perhaps, be found in the doctrine of coverture, which is peculiar to our common law.* And the maxim itself yields to an apparent intention of the testator to the con- trary.^ 1 2 Jarm. Wills, 265; supra, § 545; * 5 App. Cas. 123. Rule still applied, I Atk. 494; 119 Mass. 509; L. R. 10 notwithstanding the married women's Ch. 360. acts. ' 39 Ch. D. 148. ^ Ibid. A gift to a legatee's " wife " does not ° Co. Lit. 291 ; Wylde Re, 2 D. M. pass to a woman from whom the lega- & G. 724; Hawkins Wills, 115; 2 tee had been divorced before the testa- Jarm. Wills, 252. American statutes tor's death. 40 Ch. D. 30; Bell v, affect this construction in various in- Smalley, 45 N. J. Eq. 478. As to in- stances. Hawkins Wills, iii, Sword's eluding a second husband, see 42 Ch note. And see Warrington v. Warring- D. 54. ton, 2 Hare, 54, where the term of ex- ^ As in an appropriate residuary pression " my nephew W, and E his clause. Dixon Re, 42 Ch. D. 306. wife " and the context reversed the rule of the text. 618 CHAP. III.] EXTRINSIC EVIDENCE. § 567 CHAPTER III. EXTRINSIC EVIDENCE TO AID CONSTRUCTION. § 567. Admission of Extrinsic Evidence in General ; Rule appUed to wuis. — We are now to consider how far extrinsic evidence is admissible to aid in the construction and inter- pretation of wills. In modern times, when the codes and policy of England and the United States harmonize in requir- ing not only that wills — whatever the description of property to which they relate — shall, with trivial exceptions, be ex- pressed in writing and embodied in some instrument which has been signed and witnessed with due solemnity, we may well expect to find parol testimony of what the maker really intended, and, indeed, all proof dehors the testamentary paper or papers more carefully"shut out than formerly. The maxim hardens into a truism, that the will must speak for itself, that the testament shall afford its own testimony. Hence, the modern interpretation of wills becomes subject to rules much the same as apply to contracts ; and eminent jurists assert that there is no material difference of principle between the two classes of writings, except what naturally arises from the different circumstances of the parties.^ Yet in those differing circumstances appears no little ground of variance ; for here, instead of parties who balance their interpretation together of what was mutually intended, and may enlarge, qualify, explain, or rescind provisions at pleasure, changing the original document and adding new writings if they so incline, we find a formal instrument or instruments of disposition left as a sort of chart to all pos- terity, whose operation has no element of mutuality, whose maker cannot aid a court to discern his meaning, whose lan- guage and effect, however harsh, must remain immutable and unyielding to the end of time. Interpretation consequently 1 I Greenl. Ev. § 287. 619 § 568 LAW OF WILLS. [PART VL is thrown upon the judicial tribunal itself, which must hold the scales between the rival interests which this irrevocable disposition has stirred up, and discharge a sacred duty both to the dead and the family and relations one leaves behind. In order to discharge these delicate functions safely and honorably, the court seeks therefore to put itself in the tes- tator's place, and read, through his own surroundings, the dis- position of property as he made it ; to discover, not as in contracts, the meeting of two minds, but the process worked out and expressed by one individual mind and one will. It repels, however, on the one hand, the perilous discretion of framing another will, something different from that presented, whether better or worse ; on the other, it shuns the equal danger of ignoring or perverting the rights of those inter- ested under the will, by treating the instrument too much as though it were some generic thing, a document, a product, without an individual author. On the whole, the court puts the will, if possible, as the testator meant it, or, at least, clearly enough expressed it, and there rests. Hence this tender indulgence to the testator's wishes already commented upon, this straining to discern, through the mists of care- less, untechnical, and ignorant expressions, that pole-star of intention by which construction must be guided. And hence, too, as we shall now endeavor to show, the judicial inclina- tion, when that intention remains obscured, in spite of rule or presumption brought to bear upon the instrument by way of interpreting it, is to borrow light from extrinsic circum- stances and illumine its meaning. § 568. ' Eztrinsic Evidence to control, contradict, etc.. Inad- missible. — We may lay it down, then, .at the outset, that where the language employed in the will is clear and of well- defined force and meaning, extrinsic evidence of what was intended in fact cannot be adduced to qualify, explain, en- large, or contradict this language, but the will must stand as it was written.^ Courts, we have seen, are well enough ^ 2 Stra. 1261; Goss v. Lord Nugent, Chambers v. Minchin, 4 Ves. 675; Can- 5 B. & Ad. 64; I Jarm. Wills, 409; field v. Bostwick, 21 Conn. 550; Brown Wigram Wills, 5; i Greenl. Ev.. § 290; w. Saltonstall, 3 Met. 426. 620 CHAP. III.j EXTRINSIC EVIDENCE. § $68 disposed to correct the letter of such an instrument by its spirit ; to overlook verbal errors and infelicities of expres- sion, transpose phrases, and mould the language some- what to meet the testator's obvious meaning. ^ But to go a step beyond this and insert or substitute in effect that which the will never contained, our courts have stubbornly refused, and decline, to their honor, the insidious temptation of shap- ing men's wills for them.^ Far safer is it, as they deem it, to adhere to general limits prescribed by general rules.^ And if written testiipony dehors the will should be rejected from this point of view, much more should be that looser and less credible parol proof which is purely oral. To cite a few examples. A very early case discarded letters and oral declarations of a testator to prove that he meant to include a reversion in words whose formal expression would not bear that construction.* Another and a leading case refused proof from the person who drew the will, that a re- lease of debt due from one of the residuary legatees should have been inserted.^ And, generally speaking, words or a provision inadvertently omitted from a will cannot be supplied in construction : ^ though what is superfluous by way of error may perhaps be expunged when the will is probated, so that the instrument may stand as what the testator supposed himself executing.'^ Nor are plain words to be read differ- ently or changed upon any plea, however capable of proof aliunde, that the testator meant different words; especially ' Supra, § 477. sacred; because they withdraw the de- ^ " For it would have been of little cision from the discretion of the indi- avail," as Mr. Jarman forcibly observes, vidual judge, and prevent him from pur- " to require that a will ab origine should suing his own views of each particular be in writing, or to fence a testator round case. And there is less inconvenience with a guard of attesting witnesses, if, in the hardship which may sometimes be when the written instrument failed to occasioned by a strict adherence to the make a full and explicit disclosure of rule, than in the confusion which must his scheme of disposition, its deficiencies follow on departing from it." Tindal, might be supplied, or its inaccuracies C. J., in 7 Bing. 279. corrected, from extrinsic sources." i * Strode v. Lady Falkland, 3 Ch. Rep. Jarm. Wills, 409. 98- 8 " I agree in the necessity of adhering * Brown v. Selwin, Cas. t Talb. 240. to general rules in the construction of ' Supra, §§ 216-218. wills and other instruments. It is ex- ' Supra, §§ 2 1 9, 220. pedient that such rules should be held 621 § 569 LAW OF WILLS. [PART VI. if the effect would be to alter the disposition from that ex- pressed in the instrument : as, for example, where it is claimed that a legacy of ^500 was wrongly written for ;^5ooo, or that all the rest "of my estate personal" is said to have intended " of my estate real and personal " ; ^ while on the other hand a clerical error apparent from the context might be corrected in construction without the need of ex- ternal proof at all.^ § 569. The Same Subject. — In short, extrinsic evidence is incompetent to show the intention of a testator where the will speaks for itself with a clear and unambiguous meaning ; ^ nor can it be received to show a different intention from that which the instrument discloses ; nor can it enlarge or diminish by construction the disposition as written out and executed,* or supply any omissions or defects which may have occurred through mistake or inadvertence. Were it possible that alterations or insertions had been made in the original instrument after its execution without the testator's knowledge and consent, or that some fundamental error pre- vented him from executing the right instrument, this would have afforded ground for amending or rejecting the will in probate, upon proper evidence of the facts,^ and the interven- tion of equity to correct such mistakes is to be cautiously exercised ; ^ but taking the instrument as probated and sup- posing it to be that which the testator and his witnesses solemnly executed, no court of construction can change its tenor or tamper with its definite expression. That which a testator executes as his will must so operate, notwithstanding his mistake of law ; ^ nor can it be set up from drafts, from 1 Supra, § 527; Graham v. Graham, was ruled out in Patterson v. Wilson, 23 W. Va. 36. And see Newburgh v. loi N. C. 594. Newburgh, 5 Mad. 364. 8 Mackie v. Story, 3 Otto, 589; Clark 2 Supra, § 527. A will cannot be v. Clark, 2 Lea, 723. contradicted as to the amount stated * Wilkins v. Allen, i8 How. 385; of an advancement to be brought into King v. Ackerman, 2 Black, 408. hotchpot. Wood Re, 32 Ch. D. 517. ' Supra, §§ 214-220. Evidence that the testator said, be- ' Supra, § 220. fore executing his will, that he intended ' Supra, § 275. to give certain property to the plaintiff 622 CHAP. III.] EXTRINSIC EVIDENCE. § 57O contemporaneous memoranda, or even from the direct testi- mony of one's own scrivener or copyist, still less that loose hearsay which is always untrustworthy, that one mistook in fact what was written out. For if competent to make his will and executing the instrument freely and intelligently as his own, a testator must be taken to have adopted the con- tents as his own, and nothing surely can prevent a person from doing so at the last moment or silently ; and it is to guard the instrument as an authentic disposition that the writing, the signatures and the attestation, all are required at the present day. But what courts of construction can and will do, our two preceding chapters have indicated. They take the instru- ment as a whole and bring all parts, all provisions, together, and try to discover the general meaning without resort to any proof aliunde ; they bend the lesser sense to the larger ; and the intent thus discerned through the probated writing as a whole, aided by rules of presumption, shapes their inter- pretation of the instrument. If without other influences, other proof, a clear and unambiguous disposition is obtained, that disposition prevails; and should the testator's real intention be thereby frustrated, it is his own carelessly adopted or ill-chosen language that must answer for it. § 57^- Fai^ol Evidence Inadmissible to change Rules of Con- struction, etc. — Nor does it appear that sufficient ground is afforded for admitting parol evidence of one's intention when its purpose is essentially to control or qualify the general rules of construction, already stated at length.^ Presump- tions, or the prima facie effect and meaning of detached words and phrases, are controlled and modified readily enough by reference to the context and scope of the will without going outside the instrument at all, provided a clear conclu- sion is reached without external assistance. Words may be divested of their technical and literal force by this reference to the context ; ^ but the court does not travel beyond the ' See cs. I & 2, supra. mere possession and not investing with 2 Supra, § 470. Thus the word the entire title. Lucas v. Brooks, 18 "seisin" has been treated as meaning Wall. 436. 623 §571 LAW OF WILLS. [PART VI. context needlessly for that purpose; and its discretion not to be further instructed ought to suffice. No extraneous writing which declares that one's will shall be construed according to its most obvious meaning without regard to technicalities can be used to swerve the court from its usual course of reference to the will alone.^ No extrinsic evidence, oral or written, to show that the testator habitually or when he executed that particular will, used words in some peculiar, inexact, or popular sense, can be adduced for diverting woi'ds and phrases from the meaning which the language of the instrument affords unaided,^ or even for confirming the court in its opinion of what was truly intended ; supposing of course that an appropriate gift is found in the will itself which makes good sense when applied to its surroundings.^ § ^yi. Meaning of Words interpreted by Will; Punctuation, etc. — As we have shown,* it is the expressed intention of the testator, that which his will imports, and not any conjectural intention of his outside of the will which might or might not be capable of demonstration, that the court relies upon ; and having ascertained that expressed intention to its satisfac- tion, the tribunal investigates no farther. Its conclusion may give words their technical or literal import, or may not ; it may give expressions their ordinary and grammatical sense, or may not ; but the meaning settled upon, if settled intel- 1 Sullivan v. Winthrop, I Sumn. I. * Rules for the general construction 2 4 Dow, P. C. 65 ; Eberts v. Eberts, of technical words have already been 42 Mich. 404; Brown v. Brown, 11 set forth. Supra, §§ 470-472. The East, 441 ; Shore v. Wilson, 9 CI. & F. legal effect of a remote gift to " grand- 558; Mounsey v. Blamire, 4 Russ. 384; children," which tends to perpetuity, is 2 Jarm. Wills, 417; I Tur. N. S. 994; not to be controlled by showing that a Baker's Appeal, 150 Penn. St. 590. woman is past the time of child-bearing. Not even can a revoked will be looked 39 Ch. D. 155. at to influence the construction of the In this connection the first three of unrevoked and operating one. Hughes Sir James Wigram's propositions con- V. Turner, 3 My. & K. 666; Bowes /!e, cerning the use of extrinsic evidence W. N. (1889) 138. Nor a memoran- (which are stated at length at the close dum of what the testator declared be- of this chapter) are worthy of a refer- tween the making of his will and his ence. See Wigram Wills, pi. 21, 24, 51. death. Thomas v. Lines, 83 N. C. 191. * Supra, c. i. And see 90 N. C. 597, 619. 624 CHAP. III.] EXTRINSIC EVIDENCE. § 572 ligibly, is that which the words and language of the whole will properly interpreted convey per se. Punctuation here has its use, though an ancillary one ; and parentheses, stops, capital letters, and the like, may be taken into consideration when the will is not clearly inter- preted otherwise.^ But documents the most formal are apt to use punctuation marks, and commas especially, without much precision, the more so that the language of such writings is not that of every-day life ; hence the bearing of such marks is circumstantial and not very positive; and punctuation of itself affords no ground for creating an am- biguity.2 § 572. Eztrinsic Evidence, bow far Admissible to resolve what is Doubtful. — But all that has been said assumes the court to have reached something clear, sensible, and unam- biguous as the result of a critical scrutiny of the instrument in all its parts, and after presumptions have been balanced and modified by a patient comparison of the context. All this scrutiny and comparison may leave the court neverthe- less in doubt as to what the testator and the will intended upon some particular point in a given case ; and hence, to resolve what is uncertain, but not to change or contradict what is plain, nor to substitute or insert new matter, the court admits extrinsic evidence of circumstances and sur- roundings in aid of the testator's meaning. And the object of such evidence is to put the court in the testator's place, and ascertain better what he intended. It is this senseless or uncertain situation of things which the present chapter is more especially to deal with. But the extrinsic evidence of merely collateral facts and surround- ing circumstances in aid of construction, we subordinate to another inquiry, deemed vital by modern courts, namely, how far evidence of what were the testator's actual testamentary intentions may be adduced to remove a doubt, and make the 1 Hawkins Wills, 7, 8; Morrall v. " See Arcularies v. Swett, 25 Barb. Sutton, I Phill. 533; 2 Coll. 201; Chiia 406. V. Elsworth, 2 D. M. & G. 679; 17 Beav. 591- 62s §573 LAW OF WILLS. [part VI. will operate with sense and consistency. In other words, we ask whether and in what instances one's instructions for his will, his memoranda, his declarations, oral or written, contem- poraneous or otherwise, as to what he had done or meant to do by his will, and the hke Secondary proof may be set up in direct proof of his intention dehors the will itself, the written instrument, which embodies primarily his last wishes. Another consideration here occurs ; namely, that while a written will may speak sufficiently of the testator's purpose, that purpose has to be applied to definite persons and thingSi Doubt and uncertainty may arise out of this application of the gift, as in ascertaining sensibly the subject or object, of the interest given, whether lapse has occurred by a death, and so on. § 573- Extrinsic Evidence in Aid of an Equivocal Descrip- tion. — In the first place, and most positively, extrinsic evi- dence of intention (or parol evidence, as it is often called ^) is admissible to determine which of two or more persons or things was intended under an equivocal description. As, for example, where a testator devises his manor of Dale, and it is found that he has two manors of that description ; or gives a legacy to John Roe, and there prove two nephews, or a father and son, bearing that name.^ Instances in the reports under this head are numerous. As, for example, where a testator who made a bequest to " William Reynolds, one of my farming men," had in fact two persons of that name in his employ.^ And where the devise was to "John Cluer," and both father and son bore that name.* And where a legacy was provided for the " Bible 1 We use " parol " here simply to de- see Morgan v. Morgan, i Cr. & M. 235; note written or oral proof dehors the Gord ». Needs, 2 M. & W. 129. The instrument, and not by way of contrast old reports suppose the case of a father to " specialty," since a will is not of having two sons, both baptized with the necessity an instrument under seal. same name and both living at the time ''Miller ». Travers, 8 Bing. 244; i of the will, so that it may not be known Greenl. Ev. § 290; 2 Jarm. Wills, who was meant without extrinsic proof. 430; Wigram Wills, 130. This illustration, though perhaps far- 8 Reynolds v. Whelan, i6 L, J. Ch. fetched, may serve. 5 Rep. 68; Hob. 434- 32- * Jones V. Newman, W. Bl. 60. And 626 CHAP. III.] EXTRINSIC EVIDENCE. § 574 Society," there being more than one such society.^ And evidence has been admitted to show that " my cousin Harriet Cloak " meant a cousin's wife, who bore that name, instead of a cousin whose Christian name was Harriet but whose surname had been changed by marriage ;2 and that where a residuary estate was given for equal division " between the Board of Foreign and the Board of Home Missions " (such Boards being found in various religious denominations) that the testator, being a zealous Presbyterian, intended the gift for Boards of the Presbyterian Church.^ § 574. The Same Subject. — Extrinsic evidence may like- wise, as it is often held, clear up a general uncertainty of description left in the will as to the thing given or the object of the gift, even though no alternative subject-matter or object is definitely presented at all. As, perhaps, in an English case, which has provoked much controversy, where a legacy was written out to Catherine Earnley, and it ap- peared in proof that there was no such person, but one Ger- trude Yardley (commonly called Gatty), for whom it had been doubtless meant,' as the will was written from dictation by a scrivener who mistook the name when the testator pro- nounced it in a low and feeble voice, and wrote by the sound.* And where, again, the description of the property or the person is partly wrong and partly right, but sufficiently right for a basis of identity ; as in a bequest to " Sophia Still, the daughter of Peter Still, of Russell Square," who had two daughters, neither of whom bore that name, but one was Selina.^ And, generally speaking, where the gift is to a person whose surname or Christian name (but not both) is mistaken; or whose description is imperfect or not wholly accurate. For here falsa demonstratio is stricken from the will by construction, and extrinsic proof is soyght to supply the full intent, not to change or create an intent. And thus 1 Tilton V. American Bible Society, " Taylor Re, 34 Ch. D. 2SS- 60 N. H. 377. Evidence that an annual ' Gilmer v. Stone, 120 U. S. 586. contribution was taken for one of them * Beaumont v. Fell, 2 P. Wms. 140. in the testator's church is competent * Still v. Hoste, 6 Mad. 192. on this point, lb. 627 § 574 ^^^ ^^ WILLS. [part VI. is it also when an estate is devised called A, and described as being in the occupation of B, when it is not wholly so occupied.^ And a gift of " stock in the £.4 per cent annui- ties," has been taken as intended for "stock" in annuities of another description.^ And a devise of land, correct in its general description, may be established by the correction upon extrinsic testimony as to what it describes in detail, or vice versa? The principle in this latter class of cases is, that where there is, in the main, a sufficient description in the will to ascertain accurately what is devised or bequeathed, a part which is inaccurate may be stricken out as surplusage, but that nothing substantial shall be added to the will* We have elsewhere mentioned other instances which are refera- ble to the same head,^ and have shown that while the maxim holds good that a false demonstration does not injure, there is another maxim with which it sometimes conflicts, namely, that a court must gather the best interpretation possible from the whole will.® "Equivocal description," in descriptions which are partly inaccurate, consists in this, according to English authority : that the inaccurate and rejected description applies to none of the persons or things in question, while the remaining description is equivocal with respect to them ; but a descrip- tion which is wholly inapplicable to any of the persons or 1 Tindal, C. J., in Miller v. Travers, Rogers v. Rogers, 78 Ga. 688; Decker 8 Bing. 244; Goodtitle v. Southern, i v. Decker, 121 111. 341. Cf., as to M. & S. 299; I P. Wms. 286; Cox V. erroneous description, where the court Bennett, L. R. 6 Eq. 422. will not go outside the will, § 518. 2 Selwood V. Mildmay, 3 Yes. Jr. 306. * Tindal, C. J., in Miller v. Travers, Sir James Wigram doubts the authority supra. "An averment to take away any of this case. Wigram Wills, pi. 131. surplusage is good, but not to increase " The case is certainly a very strong that which is defective in the will of the one," observes Tindal, C. J., in Mill,er testator." Anderson, C. J., in Godb. V. Travers, supra; "but the decision Rep. 131. appears to us to range itself under the ^ Moreland ». Brady, 8 Or. 303 ; Black head that falsa demonstratio non nocet, v. Richards, 95 Ind. 184; Drew v. Drew, where enough appears upon the will 28 N. H. 489; Martin v. Smith, 124 itself to show the intention after the Mass. iii; supra, §§ 516-519, and false description is rejected." cases cited; i Ch. D. 61. » Pocock V. Reddinger, 108 Ind. 573; « Supra, § 517; 54 Penn. St. 245. 628 CHAP, in.] EXTRINSIC EVIDENCE. § 575 things in question cannot be equivocal, for here, when the accurate part of the description is rejected, nothing remains.^ § 575- "^^^ Same Subject: Late English and American Cases compared. — Later EngHsh precedents, dating from 1833, checked a growing disposition of the courts to admit parol proof of intention to correct a will, and took a conservative direction. On an appeal from the Vice-Chancellor in a case where one had devised to A all his real estate "in the county of Limerick and city of Limerick," and proof was offered that he really meant by this " in the county of Clare and city of Limerick," owning in fact lands in this, latter county as well as in the city of Limerick, but none whatever in the county of Limerick, the order below favorable to this plea was reversed and proof of intention dehors the will utterly refused for changing what the will plainly enough expressed.^ Cases of somewhat earlier date in the House of Lords had rejected parol proof that a devise of " my estate of A " meant to include estates elsewhere, as the testator used these words,^ or so as to insert a descriptive word which would have given the will a different purport from what its face expressed.* In a case still later than any of these the court circumscribed still more closely the range of extrinsic proof to show what a testator intended.^ All of these decisions preceded the new Statute of Victoria.^ Sir James Wigram had already led in the remonstrance against the drift of some earlier cases, of which Beaumont v. Fell furnished a striking example;^ 1 Hawkins Wills, li; Miller v. Tra- Fell, supra, § 574, can hardly be ques- vers, 8 Bing. 244; Hiscocks v, Hiscocks, tioned, under the singular circumstances 5 M. & W. 363; I Mer. 384. of the case, supposing, of course, the 2 Miller v. Travers, 8 Bing. 244. testator too feeble or illiterate to scru- 8 Oxenden v. Chichester, 4 Dow, P. C. tinize carefully for himself what had 65, been written out by another; and the * Newburgh v. Newburgh, I M. & Sc. similar sound of " Gatty Yardley " and 352. ° "Catherine (or Katy) Earnley" as it 6 Hiscocks V. Hiscocks, 5 M. & W. strikes the ear, offers, possibly, one of 363 (1832). those doubtful descriptions which a will 6 See supra, §§ 252, 253; Appendix, may be said to afford of itself, so as pgsf_ to permit of further proof dehors the ' Wigram Wills, pi. 149-179. The instrument, not so directly of intention, justice of the decision in Beaumont v. perhaps, as of the circumstances which 629 § S7S LAW OF WILtS. [part VI. and the conclusion as stated by him is that extrinsic evidence of intent shall only be received where description is in terms applicable indifferently to more than one person or thing. American cases do not seem always so strictly to confine the instances of doubtful description as Sir James Wigram and Hiscocks v. Hiscocks incline. Thus, where two parts of a description applied respectively to different properties, evidence of the testator's declarations was admitted to show what property he intended.^ And it is held that if in a matter of description there is such a mistake that no one person or thing corresponds to the description in all par- ticulars, but there is one who corresponds in many particu- lars, and no one other who can be intended, such person will take.2 Latent ambiguities, so called, are. resolved by the testator's declarations and other secondary proof of his intention when the will's own language does not suffice.^ The partially true description is treated as furnishing a case of equivocal description, as well as that where one or more persons or things answer the description.* Where a testator gave all his " back land " to certain devisees, parol evidence was admitted to show what he intended by that term.^ And surrounded its execution, the res gestce personal or real property was given by of the act. Be this as it may, direct testament. And the Master of Rolls, proof of intention is certainly objection- though admitting the parol evidence to able where its effect is to establish orally establish the legacy, observed that had some different disposition from what the it been a devise of lands, the utter mis- will itself explicitly declares as written description of name would have made it out and formally signed and witnessed, void. For where the description may apply i Doe v. Roe, i Wend. 541. indifferently to one or more objects the ^ Tucker v. Seaman's Aid Society, virill describes, even though it does not 7 Met. 188, per Shaw, C. J.; Howard clearly ascertain, and where the effect is v. American Peace Society, 49 Me. to confine the language within one of z88. its natural and appropriate meanings, s Cotton v. Smithwick, 66 Me. 360; the court merely rejects. Wigram Wills, 76 Me. 527. 149-179. And courts may extend their « lb. And see 4 Paige, 271; 3 Watts, indulgence so as to strike out a partial 385 ; Eigelow's Am. Notes to I Jarm. misdescription and leave the equivocal 430, 431 ; Allen w. Lyons, 2 Wash. 475; remnant to be identified. Winkley v. Kaime, 32 N. H. 268. We may add that the will in Beau- ^ Ryerss v. Wheeler, 22 Wend. 148. mont V. Fell was made before the en- And see Black v. Hill, 32 Ohio St. 313. actment of Victoria, which established Where a power is given in a will to solemnities of execution alike where sell the testator's "speculation lands," 630 CHAP. III. J EXTRINSIC EVIDENCE. §576 in a recent Virginia case the will showed a legacy to a name- sake of the testator described as " Samuel G. son of Captain John F. Slaughter " ; there was no such person ; but parol evidence was admitted to show that the testator meant by this " Samuel G., son of Captain John F. Hawkins." ^ These are a few among the many examples which American reports supply, to show how readily our own courts permit the rational intention of a testator to be aided by extrinsic evidence of what he meant, where the will as applied to a subject or object' of description, raises some doubt which, if not resolved, must cause the testamentary provision to fail for uncertainty or senselessness. § 576. Conclusion as to Xiztrinaic Proof of Intent in Case of Doubtful Description. — The two classes of cases, then, in which direct evidence dehors the will appears admissible to show the testator's intention, are these : (i) Where the per- son or thing, the object or subject of the disposition, is described in terms which are applicable indifferently to more than one person or thing. (2) Where the description of the person or thing is partly correct and partly incorrect, and the correct part leaves something equivocal.^ Or, perhaps, to take a broader view of the subject, extrinsic evidence of intention may be admitted wherever the instrument is insuf- parol evidence may identify these lands, that a legacy, which appears on the Brown V. Brown, 106 N.C. 451. And face of the will to be general, was in- where a bequest is made to A, "in tended to be specific. Hastings Re, Addition to what I have already given 6 Pern. 307. him," the sums represented by notes ^ Miller v. Travers, 8 Bing. 244. which appear among assets of the Sir James Wigram appears to narrow estate, may be shown as the gift in the proposition down. Wigram pi. 194, question. Dougherty v. Rogers, 119 So, too, does the language of the court Ind. 254. And see Scott v. Neeves, 77 in Hiscocks v. Hiscocks, supra. But Wis. 305. Parol evidence may identify this is not justified by the precedents we land not clearly described, which is the have cited, And see Tindal, C. J., in subject of devise. Jones v. Quattle- Miller w, Travers, 8 Bing. 244. See also baum, 31 S. Q. 606. Baird v. Boucher, 60 Miss. 326, as to 1 Hawkins v. Garland, 76 Va. 149. " rent and personal " property; also The court here relied upon the English Northern's Estate Re, 28 Ch. D. IS3' case of Beaumont v. Fell, supra. See The policy being a just one, it should also Taylor v. Tolen, 38 N. J. Eq. 91. receive a just and liberal interpreta- Extrinsic evidence is admissible to show tion. 631 § 577 LAW OF WILLS. [PART VL ficiently expressed or applied in terms so as to raise a doubt of the object or subject "intended, and in order to give the disposition effect, that doubt must be cleared and- the insuf- ficiency supplied. On the other hand, such extraneous proof should be ruled out, whenever its tendency is to establish an intention different in essence from what the will expresses on its own face; for where admissible it is in aid of the testa- tor's expressed intention, not against it. In cases of this kind, moreover, the meaning of the tes- tator's words is not usually ambiguous or obscure on the face of the will, but from some of the facts and circumstances admitted in proof an ambiguity arises as to applying the disposition which the will sets forth. The evidence adduced creates no gift but simply directs it. § 577- Heference to Context in Equivocal Description. — An apparent uncertainty of description oi this sort is sometimes cleared, moreover, wholly or in part by reference to the context of the will itself ; as where the testator devises one piece of land to A. B. simply, and another piece to A. B. of Maiden, having two nephews of the same name, one of whom dwelt at Maiden and the other elsewhere ; for here the pre- sumption arises, both having equal claims as natural objects of the testator's bounty, that the Maiden nephew and the other were thus distinguished, and evidence of intention aliunde may be restrained in admission or refused altogether,^ to resolve the doubt which the circumstances and situation of the testator's family and property had suggested. So a devise or bequest to William Marshall simpliciter is taken more naturally to apply to one of that simple name than to one William J. R. B. Marshall,^ and to Miss S. to import the eldest of the daughters rather than any other younger one : ^ though the description being equivocal, in either instance parol proof of intention might be let in, as it always may in such cases where the evidence from the context is not conclusive. 1 Morgan v. Morgan, i Cr. & M. 235; » Bennett v. Marshall, 2 K. & J. 74a Gord ». Needs, 2 M. & W. 129; West- » Lee v. Pain, 4 Hare, 249. lake V. Vi^estlake, 4 B. & A. 57. 632 CHAP. III.] EXTRINSIC EVIDElliCE. § 5/8 § 578. Extrinsic Proof cannot aid to misconstrue. — On the other hand, it cannot be shown by extrinsic proof that when the testator devised the manor of Dale he meant to give another manor bearing a totally different name ; nor that by John Roe he intended Peter Doe, quite a different person- age; and the utter failure of the devise or' legacy in conse- quence, because no such land or no such personage can be identified as that described, affords no sufificient reason, according to the better opinion, why the court should create a gift in different terms.^ Hence parol evidence of intent cannot be admitted to sup- ply possible omissions or defects in a will occurring through mere mistake or inadvertence, nor should a court, for any assumed purpose of correcting the instrument by proof aliunde of what the testator actually intended, change a description which is wholly inapplicable to subject or object, as it stands written, into a corresponding gift, especially if the words are clear, and have a definite meaning of their own. Thus, where one gives a legacy to the " Seaman's Aid Society," and a society actually exists by that name, it can- not be shown that the testator intended another society, ' namely, the " Seaman's Friend Society " ; and proof that the testator knew nothing of the existence of the former society, that he subscribed regularly to the latter, frequently spoke of giving it a legacy, took a deep interest in its welfare, and gave directions for his will to the scrivener, who, through mistake, wrote the wrong name in the instrument, is accord- ingly rejected.^ Moreover, provisions apparently conflicting which are con- tained in the will itself, repugnant parts, and whatever ambi- guity may arise directly from the face of the instrument and the expressions, must be resolved, if at all, by construction, and not by external proof of what was intended.^ Hence 1 See I Greenl. Ev. § 290; Miller v. 7 Met. 188. And see 8 Md. 507; IJ Travers, 8 Bing. 244; Oxenden w. Chi- N. H. 317; 30 Penn. St. 425, 437; Chester, 4 Dow, P. €.65; I M. & Sc. Jackson v. Sill, II Johns. 201; 3 Met. 352; Hiscocks V. Hiscocks, 5 M. & W. 429; Woodruff v. Midgeon, 46 Conn. 363; J»/ra, § 568. 236. 2 Tucker v. Seaman's Aid Society, » Tucker v. Seaman's Aid Society, .633 § 579 LAW OF WILLS. [PAKT VI. the declarations or instructions of the testator to the person who wrote the will must be excluded in this connection.^ The patent contradiction in terms of a will may sometimes be rendered harmless by a generous construction, but never by parol extraneous proof of what was intended.^ But by all this is meant, not that the description in the will should be altogether accurate and perfect, but that it must be so far accurate and perfect as to describe, the subject or object of the gift with legal certainty ;^ so that the particu- lar specific doubt once removed, the court may conclude with confidence that the intention of the will is carried out, and not some intention inferred outside of it, or what, from the will's own expression, was no consistent intention of any kind. For "if the description of the person dr thing (to use Sir James Wigram's language) be wholly inapplicable to the subject intended or said to be intended by it, evidence is inadmissible to prove who or what the testator really in- tended to describe " ; * which is equivalent to repeating what we have so often remarked, that the court is not to set up by parol evidence a different will from that which the testator himself expressed and executed. § 579. Extrinsic Proof of Facts and Circumstances, not of Intention, how far Admissible. — Direct proof dehors the will of what the testator actually intended is what we-have shown the courts so chary of admitting, and this out of deference to the Statute of Frauds and other legislation of later date, which require wills to be written out and duly executed. But to aid the context of the instrument by extrinsic proof of the circumstances and situation of the testator when it was exe- cuted, is constantly permitted at the court's discretion, and this constitutes a proper, indeed, often an indispensable matter of inquiry when construing a will. For, whatever a will may set forth on its face, its application is to persons and things external ; and hence is admitted evidence outside the instru- supra ; Mann v. Mann, i Johns. Ch. ^ ggg ^ Fost. 46. 231; Lewis V. Douglass, 14 R. I. 604; » See Wigram Wills, pi. 186. Brearley v. Brearley, i Stockt. 21. * Wigram Wills, pi. 188. 1 Lewis V. Douglass, supra. 634 CHAP, III.] EXTRINSIC EVIDENCE. §s;9 ment of facts and circumstances which have any tendency to give effect and operation to the terms of the will ; such as the names, descriptions, and designation of beneficiaries named in the will, the relation they occupied to the testator, whether the testator was married or single, and who were his family, what was the state of his property when he made his will and when he died, and other like collateral circum- stances. Such evidence being explanatory and incidental is admitted, not for the purpose of introducing new words or a new intention into the will, but so as to give an intelligent construction to the words actually nised, consistent with the real state of the testator's family and property ; in short, so as to enable the court to stand in the testator's place, and read it in the light of those surroundings under which it was written and executed.^ For it is produced to prove facts which, in the language of Lord Coke, " stand well with the words of the will." ^ 1 See Tindall, C. J., in Miller v. Tra- vers, 8 Bing. 244; Lowe v. Hunting- tower, 4 Russ. 581 ; Tucker v. Seaman's Aid Society, 7 Met. i88,/«r Shaw, C. J.; Blake v. Hawkins, 98 U. S. 315; Pos- tlethwaite's Appeal, 68 Penn. St. 477. See also Wigram Wills, pi. 59-95. Even the fact that the will was written out by the testator, he being an unprofessional man and unaccustomed to precise ex- pression, has been thought not unworthy of consideration. 2 Bush, 171. 2 8 Rep. 155. Parol evidence may be adduced for showing the state of the testator's property when he made the will. Hyde v. Price, i Coop. 208; Brainerd v. Cowdrey, 16 Conn, i; I Jarm. Wills, 422, and Bigelow's note; Marshall's Appeal, 2 Penn. St. 388 ; 108 Ind. 573. Or to show the state of his family. 2 Jones Eq. 420; Rewalt v. Ulrich, 23 Penn. St. 388. Or other facts known to the testator which may reasonably be supposed to have influ- enced the particular disposition. 2 Pick. 243, 460; Wootton v. Redd, 12 Gratt. 196. In pronouncing for a liberal admission of extrinsic facts and circumstances to aid in discovering the intention. Sir James Wigram strongly insists upon his distinction between the application of evidence to explain a testator's words, and its application to prove intention as an independent fact. "The evidence for the admissibility of which we are now contending," he continues, " is of the former description. It does noi per se approach the question of intention. It is wholly collateral to it. It explains the words only by removing the cause of their apparent ambiguity, where in truth there is no real ambiguity. It places the court which expounds the will in the situation of the testator who made it, and the words of the will are then left to their natural operation." Wigram Wills, pi. 76. Among other considerations why ex- trinsic circumstances should be resorted to is the fact that the same words, prop- erly interpreted, will often mean differ- ent things under different circumstances. Wigram, pi. 77. See U. S. Dig. Wills, ISS4-JS7>- § S80 LAW OF WILLS. [PART VL How wide may be the range of such testimony a moment's thought will convince us. Hardly a disposition informally drawn can a will contain, where parol proof of circumstances, and much of it scarcely relevant, has not been adduced, with a court's sanction, to aid in construing the instrument. The main object is to discover, of course, the testator's intention, and in order to do so, the court reads the will carefully over as he executed it, collecting his intention from his words; but as words in every will, whether well or ill employed, refer to facts and circumstances respecting the testator's property, and his family, and others whom he names or describes there- in, the true meaning and application of those words cannot be ascertained without proof of all those facts and circum- stances. Agreeably to this doctrine, a court may look beyond the written will itself and be guided in its construction, not only where the object or subject of the gift is in dispute, but where the estate or quantity of interest given is not clear upon the face of the will.i The will is often thus aided and reconciled in construction, though not, of course, contra- dicted ; nor is such proof admitted at all if the simple writing be sufficiently understood without it. For where there is nothing equivocal or uncertain in the language of the testa- mentary instrument, proof of the circumstances surrounding the testator remains unimportant and hence inadmissible as well as proof of what he actually intended.^ § 580. The Same Subject. — If direct extrinsic proof of the testator's intention may be offered to clear up equivocal description under the will,^ indirect evidence, or such as explains the testator's circumstances, habits, and manners, is a fortiori admissible besides. And even in cases where the stricter rule must exclude the testator's drafts, his instruc- tions, and declarations, before or after the act of execution, of what he intended to give, evidence of extrinsic circum- 1 Lowe V. Manners, 5 B. & Aid. 917; « Supra, § 573; Wigram WiUs, pL 8 Bing. 244, 323; Wigram Wills, pi. 90. 59-95. 2 Wells.fff, 113N. Y. 396. 636 CHAP. III.] EXTRINSIC EVIDENCE. § 58 1 Stances is not forbidden to aid in a just interpretation. Such a distinction may seem a strange one ; for this very proof of circumstances, especially when it leads closely up to the act of execution and its surroundings, may fall scarcely short of proving in fact what the testator actually meant, outside the written authentic expression of his last wishes. ^ Neverthe- less, the distinction is tenable, and much insisted on ; and a court of construction may check oral proof which comes too near to the factum of execution, forbidding issues to be reopened which the probate once settled, or which can only be brought up in equity when its jurisdiction to correct mistakes is openly invoked. But the evidence here sought or permitted is in aid of con- clusions which the will itself justifies, but does not make quite clear in expression or application. Direct evidence of intention alone, that which would prove intention as an inde- pendent fact, virtually repeals the wills act and supersedes the well-considered policy of our law ; and it is against the admission of extrinsic testimony, to show independently what one intended, that the line is drawn. Many of our American cases are of less force as prece- dents, because they fail either to announce this distinction or to positively reject it. They lay down the general maxim that parol evidence is admissible in all cases of latent ambig- uity, such as misdescription ; but whether by this they mean direct evidence of the testator's intention, or nothing more thaa proof of surrounding circumstances, of the testator's property, his family, and the like, they do not clearly specify .2 § 581. Latent and Patent Ambiguities in this Connection. — Much has been said of latent and patent ambiguities in this connection ; an expression borrowed from Lord Bacon, whose oft-quoted canon, though Wigram and other good English 1 Beaumont v. Fell, 2 P. Wins. 140, the claimant, to establish her case. And cited supra, § 574, is a case in point, see Patterson v. Wilson, loi N. C. 594. The res gestae of the execution being ^ Winkley v. Kaine, 32 N. H. 268; admitted, it hardly needed any direct 2 Wash. 475; 2 Dana, 47; Hawkins proof that the testator had declared his Wills, 9, Sword's note; 66 Me. 360. intention at other times to provide for 637 § S8l LAW OF WILLS. [PART VL writers have disputed it,^ the courts do not seem quite ready to discard. This canon regards ambiguities of words as of two sorts, — patent and latent ; the one where the instrument appears ambiguous, the other where collateral matter out of the instrument breeds the ambiguity, since the instrument on its face appears certain enough.^ In a patent ambiguity the written instrument, or higher proof, cannot be mingled in proof with the lower or oral, and must be construed by its own terms ; but a latent ambiguity (which in truth grows out of the application of the language to facts and circumstances) is raised by matters parol, and hence may be fairly removed by the same means.^ But, applying this rule to a will, we shall presently find that writings of that character, which would be ambiguous (or rather uncertain) on their face with- out oral explanation, admit often of such explanatory proof to make their meaning obvious; while, on the other hand, as we have just seen, the latent ambiguity may indeed be aided, but whether alike by merely explanatory proof, or by direct proof of intention, is another matter. And, again, by am- biguity the idea is conveyed that words are capable of more senses than one ; but the use of extrinsic evidence must be taken in a broader sense, and applied where the instrument points at no certain intention at all, where it is insensible, so to speak, unless this borrowed light is thrown upon it. The argument, moreover, derived from mingling proof of the higher and lower or equal quality is rather fanciful and miS' leading for employment in our age, ante-dating, as it does, the legislation of the last two centuries, which inspires our modern policy of written, signed, and attested wills. Lord Bacbn's illustrations were good, but practice carried the force of his rule beyond his own examples ; and his distinction of patent and latent, though convenient in some respects, can hardly serve as a criterion!* For, in every case, as Mr. Jar- man, has truly observed the judge by whom a will is to be ^ Wigram Wills, pi. 196; I Jarm. < See Wigram Wills, pi. 196-210, Wills, 429, 430. where some of the above objections are 2 lb.; Bac. Maxims, rule 23. stated and others adduced. »Ib. 638 CHAP. III.] EXTRINSIC EVIDENCE. § 583 expounded is entitled to be placed, by a knowledge of all the material facts of the case, as nearly as possible in the situa- tion of the testator when he wrote it.^ § 582. Extrinsic Proof of Custom and Usage; Deciphering, Translating, etc. — Since all writings are insensibly colored by the manners, ideas, and institutions of the age which pro- duces thehi, parol evidence is admissible of particular customs and usages, whenever the nature of the case demands such knowledge in order that the will may be correctly inter- preted.^ Where, again, the will is written in characters not easy to decipher, or in a language which the court does not under- stand, the evidence of persons skilled in deciphering or translating is admissible to aid the sense of the testator's own expression.^ On the same principle, any obscure terms common to a calling with which the testator was familiar, or his short- hand, cipher, or other peculiar modes of expression, may be explained by the evidence of others competent to enlighten the court, and his symbolic writing thus reduced to its rational and consistent meaning.* § 583. Misnomer, Nickname, etc., corrected ; Subject or Object of Gift identified. — Illustrajions of the preceding principles may be multiplied, as in the case of a misnomer, or nickname. A strong reason for admitting extrinsic proof of an explanatory sort in these exceptional instances of doubt- > I Jarm. WillSj 430. " The testator may have habitually 2 Supra, § 469; I Jarm. Wills, 421; called certain persons or things by pe- Wigram Wills, pi. 94; King j/. Mashiter, culiar naides, by which they were not 6 Ad. & E. 153. The rule is the same commonly known. If these names as applied to other instruments in writ- should occur in his will, they could only ing. 2 Phil. Ev. c. 7, § 3, 9th ed. be explained and construed by the aid * Wigram Wills, pi. 56; Norman v. of e!?trinsic evidence to show the sense Morrell, 4 Ves. 796; 9 Q. & Fin. 502; in which he used them, in like manner I Jarm. Wills, 421. as if his will were written in cipher or * Thus in Kell v. Charmer, 23 Beav. in a foreign language. The habits of 195, the testator, a jeweller, used the the testator in these particulars must be private price-marks of his business; and receivable as evidence to explain the the letters "ixx" were explained to meaning of his will." Lord Abinger, in mean ;^ioo. Hiscocks v. Hiscocks, j M. & W. 363. § 583 LAW OF WILLS. [PART VL ful description is, that otherwise the gift must fail for want of a sufficient subject or object, that absurdity or nullity is the inevitable outcome of non-admission. A testator who has taken the pains to express his last wishes in writing, most probably meant something ; and to conclude that he intended a provision illegal or inoperative, is more natural than to conclude that he intended nothing at all. Hence, the anxiety of our courts to discern a rational meaning, if they can, in what the will bestows, rather than pronounce the disposition void for uncertainty, where any proof, not open to the fundamental objection against disputing solemn instruments in writing by parol evidence, is available. In various ways does this desire to give the instrument a con- sistent meaning influence the decisions. As, for instance, in treating a residuary devise of all the testator's real estate as carrying a power to appoint real estate where the testator had such a power but no real estate at all.^ So, too, under the general rules of construction, in holding to no presumed intention, but overturning the presumption wherever it appears that unless the testator meant differently his gift amounted to nothing.^ In various instances courts have, moreover, saved a devise or legacy from failure by admitting, if not direct proof of intention, at least evidence of the extrinsic sort which bears in that direction, though literally explanatory of the testator's situation and circumstances, and with the avowed object of identifying rather the subject or object of the gift. The court interprets by the testator's familiar symbols, his habit- ual though perhaps obscure, imperfect, or inaccurate modes of expression. Thus, the mere misnomer of a legatee or devisee does not render the gift void, if from the context of the will or proof of the admissible sort dehors the instrument it can be ascertained who was actually intended.^ Persons designated by their nicknames, too, or by words of misde- 1 Standen w. Standen, 2 Ves. Jr. 589. 6Ves. 42; igVes. 381; Cookz/. Danvers, 2 See c. 2 passim, where this idea 7 East, 299; Smith v. Smith, 4 Paige, constantly changes the /rjV»3yfecz« con- 271; Taylor «/. Tolen, 38 N. J. £4.91; struction. 43 N. J. Eq. 43. ' I Jarm. Wills, 380-383; Amb. 175; 640 CHAP, in.] EXTRINSIC EVIDENCE. § 5 83 scription originating in some nickname, or by their popular names, or by some familiar term of endearment, may also be identified.^ So, too, may a name assumed or gained by reputation, though not strictly appropriate, amount to a sufficient description of the person intended.^ Nor need a legatee be expressly named at all if oral proof of identity serves to connect him with the gift which the will expresses.^ Extrinsic evidence of facts and circumstances may clear a doubtful bequest to some society or corporation, especially a charitable one, whose name is not well described, thus identifying the proper recipient of the bounty.* So, too, with the thing which is given, evidence of the circumstances may serve to identify the property and save the gift ; as where, for instance, a certain section of land is devised without mention of the state or county.^ Nor is the popular and reputed locality of the gift or that familiar to the testator to be controlled by proof that his description was not literally correct.^ A debt referred to in a will as "N's debt," may be identified by extraneous evidence as one which the testator thus styled but which was really the debt of another for whom N acted as agent.^ In short, whatever devise or bequest may possibly be reduced to a certainty, or in substance identified as it was meant, without violating a cardinal rule of evidence, will be upheld.^ And in such cases the careless and unskilful 1 Lee w. Pain, 4 Hare, 251; Sutton !>. ''Black v. Richards, 95 Ind. 184. Cole, 3 Pick. 232; Beatty v. Universa- See Wood v. Hammond, 16 R. I. 98. list Society, 39 N. J. Eq. 452. « Anstee v. Nelms, I H. & N. 225; 2 Hob. 32; Queen's College v. Sutton, § 575. 12 Sim. 521; Taml. 3165 Vermont Bap- ' Scott v. Neeves, 77 Wis. 305. tist Convention v. Ladd, 59 Vt. 5. ^ Upon the general subject of uncer- * Cheney w. Selman, 71 Ga. 384. Thus, tainty in a gift, see next c. in a gift to "members of my family," or See supra, §§ 516-518. A mistake the "children of A." lb.; Hill w. Bow- in the locality of lands devised may often man, 7 Leigh, 650. be aided by words of reference to occu- * Kilvert's Trusts, L. R. 7 Ch. 170; pancy, and vice versa, or other identify- Hinckley v. Thatcher, 139 Mass. 477; ing terms. I Jarm. Wills, 377; i Ld. 3 Demarest, 516; 49 Me. 288; 66 Me. Raym. 728. And so, too, where lease- 100; Straw V. East Maine Conference, hold is described as freehold, etc. Scru- 67 Me. 493; 7 Met.- 416; Gilmer v. pulous exactness of description is not Stone, 120 U. S. 586; Smith z/.-Kimball, needful, if -identity under the will can 62 N. H. 606. he safely established, despite all error 641 § 584 LAW OF WILLS. [PART VI. testator who draws his own will without competent advice finds bountiful indulgence from the courts ; his written ex- pressions being smoothed out, words which he left out or misapplied being supplied or read correctly, and the main intention gathered and carried out if possible.^ Wherever, in fine, there remains no reasonable doubt as to the person or thing intended to be described, upon due investigation, the gift will not be disappointed ; and thus may a gift be sus- tained, though in point of fact no beneficiary answered to the literal expression of the will. § 584. Blank in a 'Will: Omitted Gift not inserted. — Where a complete blank is left in the will for the name of a legatee or devisee, no parol evidence, however strong, is competent to fill it up ; ^ and the principle appears to be the same where the blank relates to the subject or thing bequeathed or de- vised. To give " to $ 1000 " leaves, therefore, no one who can claim the legacy ; and to give "to AB " leaves noth- ing to be claimed as a legacy ; and in either case the testator likely enough never resolved upon a gift definitely, though turning it over in his mind, as to the subject or object.^ But partial blanks may, in a suitable case, be supplied in construction, not, perhaps, by direct parol evidence of what the testator intended, but, at all events, where the context, with or without the aid of extrinsic circumstances, supplies a definite thing or person, and renders the will sensible. Thus, a legacy to "Mr. B," or to "John," or to "Brown," might be identified;* and so, too, where one legacy of ^500 was given to A, and another of ;jS700 to B, a third legacy of " 600 " to C might well be supposed to mean six hundred dollars. Upon partial blanks, on the other hand, which leave the or imperfection in the will's expression. 1 Lytle v. Beveridge, 58 N. Y. 592. " Veritas nominis toUit errorem demon- * Hunt v. Hart, 3 Bro. C. C. 31 1. See strationis " ; that is to say, where some next c. one answers the name, it is immaterial ' Miller v. Travers, supra ; 2 Atk. that a further description does not pre- 239; Taylor v. Richardson, 2 Drew. 16; cisely apply. See i Jarm. Wills, 379; i Jarm. Wills, 441. 2 Ves. Jr. 589. On the other hand, * See 3 Ves. 148; De Rosaz Rt, 2 " nihil facit error nomini^ cum de cor- P. D. 66. pore constat." 642 CHAP. III.J EXTRINSIC EVIDENCE. § 586 sense defective, no valid gift can be based.^ And if, besides a blank, there is an uncertain description, the will becomes doubly inoperative.^ Moreover, a devise or bequest, wholly omitted by mistake, is not to be inserted in a will; 3 yet some partial omission might not exclude a sensible construction of the gift, with the aid of extrinsic circumstances. § 585. Devise or Bequest to Children, etc. — Inasmuch as a gift need not be to persons by name whose identity can be established, a gift to the "children of A" sufficiently describes them.* And the word "children" has its own natural interpretation ; ^ so that the proof of intent dehors the will is inadmissible to show that a will thus plainly expressed was meant to signify sons and to exclude the daughters,^ or vice versa. As to omitting the name of one's own child from his will, various enactments are found in our local codes, whose policy upholds more or less conclusively the right of such child to take his share in the estate.'^ Evidence dehors the will that the testator intended the omission and meant in fact to disinherit the child cannot, under some of these enactments, be received at all ; * but other statutes permit such parol proof to be offered so as to repel the inference from the will that the omission was accidental ; excluding neither direct nor indirect evidence upon this point.^ § 586. Parol Evidence to prove or repel a Resulting Trust. — Courts of equity have in some instances admitted parol evidence not only in the cases of fraud and error elsewhere considered,^" but so as to establish or repel a resulting trust. Thus, where a devise or bequest is procured from the testator 1 Mason v. Bateson, 26 Beav. 404. that would make the will insensible and 2 Traylor's Estate, 81 Cal. 9; § 592. absurd. 'Newburgh's Case, 5 Madd. 364. « Weatherhead ». Baskerville, 1 1 How. And see supra, §§ 21&-219. 329. * Cheney v. Selman, 71 Ga-. 584. ' Supra, §§ 20, 480. 6 Supra, § 533, where the primary * Garraud's Estate, 35 Cal. 336. and secondary meanings of this word ' See Lorings w. Marsh, 6 Wall. 337; are stated. Such words as "son," Buckley z/. Gerard, 123 Mass. 8; 3 Gray, "child," "daughter," etc., must usually 367; 106 Mass. 320; 5 Iowa, 196. be construed in the primary sense, unless 1° Supra, §§ 216-220, 223, 248. 643 § 587 LAW OF WILLS. [pART VI. upon a promise to hold all or a part for some third person whom the testator desires to benefit, a trust arises which equity will enforce. The ground of such enforcement is not so much the promise as the transfer of property upon the faith of that inducement and with that benefit in view. On the ground that fraud has been committed on the bene- ficiary, by not carrying out the terms of the transfer as mutually intended and understood, equity interferes to declare and protect the trust; and this with equal zeal, it would appear, whether the gift related to real estate or personalty, and indeed whether the instrument of gift was testamentary or only inter vivos. This trust if denied may be proved by parol evidence ; for as the written instrument is not thereby disputed, but is shown to have involved a transfer upon some external inducement, there is, it is ruled, no trans- gression of the Statute of Frauds by offering this proof.^ So, too, on the other hand, parol evidence dehors the will may be adduced to repel any such resulting trust ; no such trust, of course, being expressed in the will or instrument of gift, but its effect being to sustain the legal title of donee, devisee, or legatee against a naked equity which is raised by legal implication.^ § 58/- Effect of Language in Will not to be varied. — The plain effect of the language as used in the will is not to be varied by external proof of what effect was really intended. Parol evidence may indeed be resorted to for the purpose of making something intelligible in the will which cannot with- out its aid be understood or resolving a doubtful interpreta- tion ; but if the language of the will in point of legal construction requires one interpretation, and can be under- 1 I Jann. Wills, 415, and Bigelow's 416) is where the father devises to the note; Russell v. Jackson, 10 Hare, 206; youngest son, who promises as an in- Jones V. Badley, L. R. 3 Ch. 362; 9 ducement to this devise to pay ;^io,ooo Ves. 519; Glass v. Hulbert, 102 Mass. to the eldest son. 24; Hooker v. Axford, 33 Mich. 453; 2 , jarm. Wills, 416, and Bigelow's .L. R. 4 H. L. 82. Cf. Wolford v. Her- note; 2 Story Eq. Jur. § 1202; Cas. t ringtoh, 74 Penn. St. 311. An English Talb. 79; 9 Ves. 519. instance cited by Mr, Jarman (i Jarm. 644 CHAP. III.] EXTRINSIC EVIDENCE. § 588 Stood in that sense, evidence of intention cannot be adduced to give it another and a different interpretation.^ § 588. General Summary; Failure of Gift Notwithstanding Extrinsic Evidence. — We have assumed throughout this dis- cussion, that the extrinsic evidence admitted, in the forego- ing cases, of whatever kind, whether directly or indirectly bearing upon the testator's actual intent, has been received, if at all, simply as ancillary and subordinate to the purpose disclosed in the written will, in order to aid a doubtful inter- pretation, and not so as to materially qualify or contradict the instrument or interpolate a testamentary gift which its own tenor did not justify. And were the question an open one in the courts and not already closed to argument, we should incline to contend that in the foregoing distinction is the real root of the matter, rather than in attempting to define positively between the admission or non-admission of direct proof of intention as against indirect proof of extrinsic facts and circumstances ; for whether direct or indirect in bearing, all such proof is explanatory merely, under the limitations of our distinction, and all tends in the same direction, namely, to bring extrinsic evidence to bear upon the will, as to what the testator intended, when the will cannot shine by its own light unaided. Indeed, in some of the United States precedents are not conclusive against such a view. But the English rule, at all events, for the present or permanently) draws the line at uncertainty as between two or more subjects or objects and beyond this allows no direct extraneous proof of what was intended,^ while Ameri- can courts still waver about extending the lines to other instances of an uncertain gift.* All tribunals agree, however, in aiding the will by extrinsic proof of facts and circum- stances, and thereby resolving, if possible, whatever must otherwise remain ambiguous or insensible as the written I Wigram Wills, pi. 125; King v. probate to show that a gift by deed poll Badeley, 3 My. & K. 417; Clementson duly executed was intended as a will. V. Gandy, l Keen, 309; WUkins w; Slinn's Goods, 15 P. D. 156. Allen, 18 How. 385; iupra, § 578. = Supra, § 575. Extrinsic evidence is admissible in the * lb. 64s §589 LAW OF WILLS. [PART VI. instrument stands. And one can well appreciate the good policy, if not the logic, of holding in check that bold, glaring sort of testimony which consists in rough drafts, instructions for a will, hearsay declarations of what the testator intended, the scrivener's confessions, and the like, whose sure tendency is to prove too much, to set an oral will by the side of a written one ; and of illuminating the will and the testator's meaning rather by that softer radiance which collateral facts and circumstances may shed. Doubt and uncertainty may grow out of the thing described as given, or the person or object that shall take, or the language which imports the gift. Whatever the element or elements of uncertainty or senselessness, it is a rule that, where the words of the will itself, aided by extrinsic evidence of the material facts and circumstances, and by such direct proof of intent dehors the instrument as courts pronounce admissible, are found insufficient to determine the testator's meaning, the gift, the testamentary provision, will be void for uncertainty.^ § 589. General Summary; Extrinsic Evidence always Ad- missible to aid in Right Interpretation. — Conversely, we are to conclude that a court may inquire into every material fact and circumstance dehors the will for the purpose of determin- ing the object of a testator's bounty, or the subject of dispo- sition, or the quantity of interest intended to be given by the will in controversy.^ And the same holds true of every other disputed point respecting which it can be shown that in any way a knowledge of extrinsic facts will throw more light upon the testator's meaning.^ In short, extrinsic evidence of at- tending facts and circumstances as to one's family relations, his property, his affairs, and the like, — indeed, of whatever was likely to have influenced the disposition as it appears, — is always admissible for placing the court at the testator's point 1 Wigram Wills, pi. 105-129, and pi. 58; Shore v. Wilson, 9 CI. & F.5S6; cases cited; i Jarm. Wills, 382; 15 Sim. 6 H. L. Cas. 106; Innes v. Sayer, 3 M. 626; 36 Iowa, 674; 55 111. 514; Tray- & G. 606. lor's Estate, Re, 81 Cal. 9; next c. » Supra, §§ 582, 583; Wigram Wills, * Supra, §§ 579, 580; Wigram Wills, pi. 58. 646 CHAP. III.] EXTRINSIC EVIDENCE. §590 of view when he made the will, and thereby aiding a right interpretation of the instrument. As a bound, however, to all such extraneous investigation by a court of construction, we may add that whenever the will discloses a clear purpose upon its face, neither the situation of the testator, nor that of his family or property, nor any other outside facts or circumstances can properly be considered in giving effect to the will.i And certainly where doubt may be fairly solved by careful recourse to the context, and by bringing all parts of the will together, it is better not to travel outside the instrument at all. § 590. Sir James Wigram's Propositions stated. — The seven propositions of Sir James Wigram are so generally used by the courts as canons of construction, and have moulded English precedents so greatly, that, without further criticism of their merits, we subjoin them at length for the convenience of the reader.2 1 Brearley v. Brearley, I Stockt. (N.J.) 21; ja/ra, §§ 468, 568. 2 Seven propositions are applicable to the construction of wills. Wigram on Wills, pi. 12-19. — (!•) A testator is always presumed to use the words in which he expresses himself, according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed. (II.) Where there is nothing in the context of a will from which it is appar- ent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so inter- preted are sensible with reference to ex- trinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpreta- tion, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered. (III.) Where there is nothing in the context of a will from which it is appar- ent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with refer- ence to these circumstances, they are capable. (IV.) Where the characters in which a will is written are difficult to be de- ciphered, or the language of the will is not understood by the court, the evi- dence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissi- 647 § 59° LAW OF WILLS. [part VI. ble to declare what the characters are, or to inform the court of the proper meaning of the words. (V.) For the purpose of determining' the object of a testator's bounty, or the subject of disposition, or the quantity of interest'intended to be given by'his will, a court may inquire into every material fact relating to the person who claims to be interested under the will', and to the property which is claimed as the subject of disposition, and to the cir- cumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the per- son or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpreta- tion of a testator's words. (VI.) Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will {except in certain special cases, see VII^ will be void for uncertainty. (VII.) Notwithstanding the rule of law which makes a will void for uncer- tainty, where the words, aided by evi- dence of the material facts of the case, are insufficient to determine the testa- tor's meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: where the object of a testator's bounty, or the subject of disposition {i.e., the person or thing intended), is described in terms which are applicable indiffer- ently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator. 648 CHAP, IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § SQI CHAPTER IV. MISCELLANEOUS PROVISIONS CONSIDERED. § S91. Gifts sufficiently or insufficiently Certain. — In this final chapter we shall bring together some miscellaneous matters suggested under the head of testamentary construc- tion with which the preceding chapters have not fully dealt. And, first, to speak in general of gifts under a will which are sufficiently or insufficiently certain. How reluctant are our courts to pronounce a testamentary provision void for uncer- tainty wherever extrinsic proof may illumine the purpose which the written charter of his last wishes embodies and reduce the doubt to reasonable certainty, we have already observed;^ how sedulously, too, the wishes of careless and unskilful testators who have dra,wn their own wills and bungled into awkward and erroneous expressions are re- garded ; with what tender indulgence the instrument of post ■mortem disposition will be carried into effect by construction, provided it fulfils all the formal conditions which are indis- pensable to a probate. But after all the indulgence, all the favorable regard possible, after all the comparison of words and phrases, after the long search by the light of extrinsic testimony to discover in the gift a certain and sensible mean- ing, the court may still be left in impervious darkness, and the will fail of effect in consequence. For conjecture, as Mr. Jarman fitly observes, is not permitted to supply what the testator has failed to indicate ; and if, after every en- deavor, the judicial expositor "finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence." ^ Nevertheless, in modern times the instances of failure for 1 See supra, §§S 72-590- ' ' Ja™»- Wills, 356. 649 § 592 LAW OF WILLS. [PART VI. uncertainty are more rare than formerly ; partly because rules of construction are now better settled, and partly, no doubt, from the development of personal wealth in our communities, and the decay of that ancient subservience to the heir-at- law, for whose sake the attempted devise of lands was so often pushed aside on one pretext or another.^ § S92. Uncertainty in Subject or Object. — As we have already intimated,^ a gift by will to be certain requires a defi- nite subject and object, and cannot stand if either be want- ing; though to identify the thing given, or the person to take, extrinsic evidence is generously admitted. As to the subject, a gift of " all " was in an early case pro- nounced too indefinite;^ but whatever imports a residuary gift may be sustained in modern times, though expressed in terms scarcely more specific* The gift of " some," or of an indefinite fund, is uncertain ; ^ yet the motive of the gift, if apparent, may reduce this to certainty by supplying the means of estimating its amount.® It matters much whether the con- text indicates, in such cases, that important words are left out or that the gift stands instead, as finally and completely, though informally, expressed.'' Uncertainty, however, which arises from two repugnant provisions may of course be recon- ciled by the usual rules.^ The gift of part of a larger quantity is not uncertain where the devisee or legatee has a right to select ;^ for here the beneficiary may take the larger part, if not the whole, and it is only the gift over of what remains that proves precarious ; and even this latter gift will be sus- tained, if possible.^" The gift of what remains undisposed of may indeed be often repugnant to the first gift, or too nearly so to vest a certain right ; nevertheless, a gift is good of 1 The old cases of uncertain gift are ' 3 J. & Lat. 702; 10 Sim. 193; I of little value as precedents at this day. Jarm. Wills, 358. I Jarm. 357. ' See Mohun v. Mohun, cited i Jarm. 2 Supra, §§ 572-588. 357- s I Lev. 130, Sid. 191. ^ ^ Supra, § 478; 81 Ind. 224; 103 4 I Jarm. Wills, 357, 358; Bassett's 111. 607. Estate, L. R. 14 Eq. 54. » 2 P. W. 387; L. R. i Eq. 378. ' 2 P. W. 387; vjubber v. Jubber, 9 Kennedy v. Kennedy, 10 Hare, 438. Sim. 503; Gray Re, 36 Ch. D. 205. 1° I Jarm. Wills, 363. 650 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § Sg2 what shall remain at the decease of the first taker, if the latter has only a life estate given him, or if such a gift is preceded by a power of disposition so restrained in its exer- cise that the gift of what is left refers evidently to what shall remain unappropriated and unappointed under the power.^ A blank in a will accompanied by an uncertain description, is likely to prove fatal to the gift.^ Uncertainty as to the object of gift may often be cleared by explanatory proof' of extrinsic facts and circumstances, and even of intention, under the rules already stated ; ^ but the uncertainty which avoids here as well as elsewhere, is that which either leaves the obscurity unaided in fine by proof from without, or confirms an inference that the tes- tator had not really made up his own mind. There may be an equivocal or vague description capable, as we have seen, of personal application with the aid of parol proof.* But where the will itself specifies a class all of whom are not to take, yet leaving it in doubt which was to be selected, as in a devise to " one of the sons " of A B (who has several sons), the gift is held void for uncertainty ; and probably because the will does not here intimate that the testator had a defi- nite object of bounty selected in his own mind, but rather the contrary.^ Where, however, the gift is to all of a class except one person who is not named or cannot be ascer- tained, the inference being consistent that the testator under- stood his own exception, the will is upheld by taking effect in favor of the whole class.^ Another ground for pronouncing the gift void in such cases might be the testator's apparent misconception ; as where he gives a legacy to A's oldest son, 1 See Surman v. Surman, S Mad. 123; * lb. I De G. & S. 288; Bibbens v. Potter, ^ See I Jarm. Wills, 370, where vari- 10 Ch. D. 733; I Jann. Wills, 363-365, ous examples are stated. As if one where the authorities are collated. should make a gift to twenty of the 2 For instance, where executors were poorest of his relatives, i Roll. Abr. required " to purchase at a price not 609. So where one names " one of my exceeding % , a tract of land at or sisters to be executrix." 2 P. D. 72. near the residence" of certain persons, » i Jarm. Wills, 370; 3 K. & J. 206; the clause was hopelessly uncertain. 9 Hare, 37; Gill v. Bagshaw, L. R. 2 Cf. § 584. Eq. 746. 8 Supra, §§ 572-588. 651 § 592 « LAW OF WILLS. [PART VL and A never has a son, but daughters ; though here it might instead be inferred that the gift was meant supposing A should ever have a son. The confusion of singular and plural in describing the object, the use of contradictory or repugnant words, gifts to several alternately or successively without specifying the order, these are among the various instances in which a devise or bequest has been adjudged void for uncertainty of object ; and the fault is in the will, which becomes entangled in its own words so that a clear intention cannot be extricated from the expressions.^ § 592(3:. The Same Subject. — A testator, it is held in Eng- land, may give the residue of his estate to such charities as the executors named in his will may select; and such right of selection subject to chancery supervision is personal to the executors.*^ Conformably moreover to what is known as the cy pres^ doctrine, English courts of chancery have sustained a will as much as possible, by a sort of straining process and with no great regard to legal consistency, where devises and bequests are given for charity ; treating each particular case upon its own merits, expounding the gift so as to avoid the testator's possible attempt to create a perpetuity ; and, out of deference to the substantial intention of the will to benefit one's fellow-men by a charity, provided such intention appear, to invent some practicable means of carrying the gift into effect, even though the testator's own mode must fail for technical reasons.* Such jurisdiction partakes somewhat of royal prerogative ; and the doctrine of cj/ pres does not universally obtain in this country to the detriment of heirs and next of kin ; some important States of our middle section and elsewhere expressly repudiating it, while all the New England States, excepting Connecticut, approve it.^ Independently of this cy pres doctrine, a trust under a will 1 I Jartn. 370-374. See Whitesides who qualify in selecting the charities. V. Whitesides, 28 S. C. 325. lb. 2 CrawforJ v. Fotshaw, 43 Ch. D. 643. * L. Fr. As near as. Consequently an executor named in the * 4 Ves. 14^ 7 lb. 69, 82. will, who has renounced probate, has a * Bouv. Diet. "Cy Pres"; Bisphi right to take part with the executors Equity, § 130, 652 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 593 is liable to be declared void, though evidently for commend- able and benevolent objects, for want of a certain designated beneficiary, for uncertainty and indefiniteness in its objects, and for excess of jurisdiction vested in the executors and trustees.^ A charitable use may be applied to almost any object, tending to promote the well-being of mankind ; and a valid devise or bequest may be limited to a corporation to be created under legislative sanction after the testator's own death, provided it be called into being within the time limited for the vesting of future estates.^ Beneficiaries, in general, may not be definitely known or ascertained at the time of the testa- tor's death, and it is sufficient that they are so described in the will as to be ascertained in the future when the right accrues to receive the gift ; no rule of perpetuities being transgressed. But, without the aid of the Enghsh cy pres doc- trine, a grant which is dependent upon the selection by one's executors and trustees of the charitable, educational, and scientific purposes to which the fund shall be applied is inef- fectual and void because of indefiniteness and uncertainty.^ § 593. The Same Subject. — The precedents, and English precedents especially, treat charitable bequests, therefore, with every possible indulgence, sustaining gifts in this respect which, were individuals the objects, must inevitably have failed.^ Thus, it is said that where there are two 1 See Tilden v. Green (N. Y. 1891), ' Tilden v. Green (N. Y. \%<)i), supra. 44 Alb. L. J. 368, where, by a bare In this instance, which is likely to be majority, the New York Court of Ap- celebrated in legal history, the Court peals declared a trust void for uncer- of Appeals most singularly caused the tainty, whose primary object was to splendid public endowment of the testa- establish and maintain iii New York tor to fail, within the State jurisdiction. City a free library on a noble and mu- so that distant relatives might inherit nificent basis. the estate, by refusing to disjoin in con- 2 Perry Trusts, Re, § 637, 736; Inglis struction, the procurement of a lawful V. Sailors' Snug Harbor, 3 Pet. 99; 43 beneficiary by legislative act, from the N. Y. 254. But a devise to a charitable more remote and objectionable discre- corporation to be incorporated by an tion which the ivill vested in the execu- act from the legislature within a specified tors and trustees, chiefly, as it would number of years after the testator's appear, by way of alternative, should death, may transgress the rule of per- the beneficiary fail. petuities. Cruikshank v. Chase, 113 * i Jarm. Wills, 376. N. Y. 337. 653 § 593 LAW OF WILLS. [PART VI. charities bearing the same name, and it cannot be ascer- tained which of them the testator intended, the legacy will be divided between them ; ^ a doubtful example, for in so extreme a case, and supposing extrinsic proof left one's in- tention balanced, the analogy ought to hold good in the case of individuals.^ If some individual or charitable object an- swer the description embodied in the will, no proof that the testator meant another is admissible ; and where again the will purports to distribute among various objects, that intent in either case must be upheld ; ^ and once more, if proof in aid of a doubtful description points to one object rather than another, the more probable object takes the whole.* But this distinction at least is observable : that in the gift to an individual or to some business corporation, a private or per- sonal bounty was in the testator's view, while in gifts to religion, education, or other charities, the benefit bestowed is a public one ; and to carry that public benefit into effect, if the scheme be feasible and can be gathered from the will, is, after all, the prime concern, the identity of the trustee or conduit of the testator's benevolence being but secondary in consequence.^ All particulars of description, whether relating to subject or object or both, need not, as we have seen, be accurate, provided enough remain to identify after rejecting the false description and calling in such explanatory proof to help interpret the instrument as the rules of evidence permit.® And the rule is a general one, that no misdescription of the thing given or the taker shall defeat the gift, if upon the whole there is no reasonable doubt, consistently with the will's own expression, who or what was intended.'^ And while a wholly false or uncertain description by the will may vitiate 1 Amb. 524; 2 Beav. 81 ; Alchin's charitable gifts, with its great multitude Trusts, L. R. 14 Eq. 230. of precedents. The subject is briefly ^ Hare v. Cartridge, 13 Sim. 167. touched upon in Schoul. Exrs. and Contra, 2 Jarm. 376. Admrs. §§ 464, 465, and discussed at * See 25 Beav. 109; 7 Met. 188. full length in Perry Trusts, §§ 687 et seq., ' I H. L. Cas. 778. and i Jarm. Wills, 209-250. ^ The limits of this work forbid an ^ Supra, § 576. extended examination of the law of ' Supra, § 588. 654 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § S94 the gift, and still more a description which has its clear and appropriate application elsewhere is not to be corrected by parol as a misdescription at all, a description failing in cer- tainty can nevertheless be thrown out in many instances without injury to a clear and unambiguous gift which some prior description in the same instrument sustains. ^ No gift can, in short, be pronounced void for uncertainty until after a resort to oral evidence it still remains a matter of conjecture what the testator intended. ^ § 594. The Same Subject. — Where the construction of a gift is doubtful after all extrinsic assistance is afforded, the leaning of the court should be to that course of disposition for which public policy pronounces in the statutes of descent and distribution ; and this maxim may serve for particular words and phrases of uncertain ten or. ^ So, if equivocal description be not corrected by the context and parol evi- dence, but the name and description equally balance, either the gift must be divided ; or, as some cases hold where no charitable purpose is disclosed, the gift fails altogether.* And where, upon the whole, the provisions of a will in each and all of its items are so obscure, that with all the light of extrinsic evidence no definite idea can be formed of what the testator intended in any of the dispositions he has tried to make, the will must fail of effect for uncertainty.^ To avoid a will or any of its provisions at the present day for uncertainty, it is not enough that the disposition appears too obscure and irrational for the testator to have been likely to intend it ; but, more than this, the gift must be without clear meaning at all.® And where both name and description correctly describe some person or thing, the improbability of such a gift on general principle shall not defeat it.'^ 1 Supra, § 516; 78 N. C. 396. * Supra, § 593; Drake v. Drake, 8 2 Congregational Society v. Hatch, H. L. Cas. 172; i Jarm. 382. 48 N. H. 393; 4 Paige, 271. See « Cope v. Cope, 45 Ohio St. 464. further, 57 Conn. 147. ° Mason v. Robinson, 2 Sim. & S. ' France's Estate, 75 Penn. St. 220; 295; Wootton v. Redd, 12 Gratt. 196. 80 lb. 340. ' I Jarm. Wills, 383; Mostyn v^ Mostyn, 5 H. L. Cas. 155. § 595 LAW OF WILLS. [part VI. § 595. Uncertainty in creating a Trust; Precatory Trusts,— Any particular will may disclose an intention to create a trust, without clearly defining the objects or purposes of that trust. Expressions of desire accompanying a devise or be- quest ZX& prima facie obligatory, moreover, and create a trust unless the actual intention appears different.^ Where, for example, one gives to A B ;^SOOO, hoping, wishing, recom- mending, expecting, or, perhaps, entreating, him to give the same or some part of it to C D, or use it for C D's benefit, — for here C D is considered an object of the testator's bounty, — A B is, fro tanto at least, a trustee for him by inference.2 Out of this rule grows the doctrine of precatory trusts^ as they are called; and the test question in such trusts is whether by using these words milder than a com- mand, the testator meant to control A B or to submit a pro- posed benefit to his discretion or selection iirstead.^ For in this latter case the usual presumption is overcome, and the legatee may carry out the request or not as he chooses, and no trust is created.* No general rule, aside from the testa- 1 I Jann. Wills, 385, and Bigelow's are more clearly imperative. -66 Penn. note; 2Ves. 333; Knight ». Boughton, St. 402. II Q. & F. 513; Knight v. Knight, 3 In American States the English doc» Beav. 148; 3 Mac. & G. 546; Hawkins trine of precatory trusts is not always Wills, 159; 2 Story Eq. Jur. § 1068; adopted with full force; and still less 15 Ohio St. 103; Warner v. Bates, 98 are our courts disposed to adhere to Mass. 274; 35 Me. 445; Harrison v. any artificial rule on this subject. See Harrison, 2 Gratt. I ; 13 Penn. St. 253; Hawkins Wills, 159, Sword's note. See I N. H. 217; 35 Vt. 173. also Gibbins v. Shepard, 125 Mass. 141; 2 Knight V. Knight, supra. And see Van Gorder v. Smith, 99 Ind. 404; 100 supra, § 263. Ind. 148; Van Amee v. Jackson, 35 Vt. Among expressions which in the Eng- 173; 20 Penn. St. 268; Burt w. Herron, lish cases have been treated as pHma 66 Penn. St. 400; Brasher v. Marsh, facie creating a precatory trust are 15 Ohio St. 103; Howard v. Carusi, these: " recommend," " request," "en- 109 U. S. 725; 37 N. J. Eq. 21; 86 treat," "advise," "confidence," "under Cal. 265; 29 S. C. 54; where the prec- the conviction that," " in full confidence atory words were treated as amounting that," " in full faith that," " not doubt- to mere recommendation. On the other ing," and even "hoping." Hawkins hand, Bigelow, C. J„ in Warner ». Bates, Wills, 159-162, and cases cited; I 98 Mass. 274, pronounces the general Jarm. Wills, 387; 93 Mo. 367; Colton principle of construction a sound one, V. Colton, 127 U. S. 300. and only open to criticism as courts ' Pennock's Estate, 20 Penn. St. 268; have sometimes applied it in particular Stead V. Mellor, 5 Ch. D. 225. If such wills. ; words are addressed to an executor, they * See I Sim. 542; Webb ii. Wools, 656 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § SQS tor's obvious intention, can be formulated for determining whether a devise or bequest carries with it the whole benefi- cial interest, or whether it should be construed as creating a trust ; but if a trust capable of enforcement be sufficiently- expressed, it does not disparage, much less defeat it, to call it "precatory."^ Mere expressions of kindness and good will towards these third parties, or an appeal to the donee's liberality on their behalf, is not enough to create a precatory trust for their benefit and make the dubious words alluded to operate to qualify the legatee's interest.^ Nor do expressions which per se might amount to a trust have that effect, when so accompanied by other words that the will declares or implies on the whole a contrary intent. Doubtful cases may be explained by the context ; a clear devise or legacy is not to be cut down by repugnant expressions in the will ;3 and where the words of the gift point plainly to a full, absolute, and unfet- tered enjoyment by the donee himself, mere precatory expres- sions annexed to the gift can hardly be pronounced im- perative.* And where the testator obviously intends a gift 2 Sim. N. S. 267. In like manner, the dren, we may well accede to the latter words "in trust" were not meant to view. create a technical trust. 60 Penn. St. Where a devise or bequest is unlimited 344. and accompanied by an absolute power 1 Per curiam, 127 U. S. 300, 312. of disposition, a mere desire or request 2 Bond Re, 4 Ch. D. 238; i Jarm. that all which remains undisposed of 388; II a. & F. 513; Sale V. Thorns- at the legatee's death shall go to certain berry, Ky. persons cannot control the gift. 113 8 See § 478. Ind. 18; Bills v. Bills, 80 Iowa, 269. * I Jarm. Wills, 388; Knight v. See also § 600, as to repugnant condi- Boughton, II CI. & F. 513; 14 Sim. tions annexed to a gift; Whitcomb's 379; Meredith v. Heneage, 10 Price, Estate, 86 Cal. 265. 306. Some cases seem reluctant to Where all the testator's property was uphold a widow's absolute discretion devised and bequeathed to his wife, and control of the property as against coupled with a " wish " that she should the testator's own children. See 16 pay collateral kindred annually so much Jur. 492, cited I Jarm. 390. But other " if she find it always convenient," precedents treat her with the usual favor this is a trust dependent upon the where doubtful precatory words accom- widow's " convenience " and not upon pany an absolute gift in her favor, her volition. Phillips v. Phillips, 112 Hutchinson Re, 8 Ch. D. 540- So N. Y. 197. See Enders v. Tasco, Ky. far as the children concerned are all 1889. her own, and none of them step-chil- 657 § 595 LAW OF WILLS. [part VI. subject to the beneficiary's discretion on certain points, that discretion must be respected.^ The indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the court as evidence that the mind of the testator was not to create a trust.2 There is a wide difference between a power under the will which the donee is free to exercise, and a trust, which equity will enforce regardless of his wishes. And while American courts have declined to follow the English precedents where there is danger that literal construction will force a trust out of loose words where none was in- tended, the English chancery judges seem of late disposed in many instances to retrace their steps, as though conscious that the doctrine of precatory trusts had been pressed too far by some of their predecessors, and loose recommendations invested with a peremptory meaning which robbed the gift of its just efficacy.* But a trust may still be created out of precatory expressions, and enforced where the supposed objects of the testator's bounty are certain and definite, the property clearly pointed out, and the natural relations of the testator to the beneficiaries such as to raise a strong motive for making a trust instead of confiding implicitly in the donee's discretion ; and where, most of all, the strength of the language used by the testator besides warrants the infer- ence that a decided, though soft, imperative was intended.* ^ Lawrence v. Cooke, 104 N. Y. 632; (i) As to uncertainty of amount. 125 N. Y. 427. A gift to A, with precatory words as to 2 Lord Eldon in Morice v. Durham, disposing " what shall be left " at his 10 Ves. 536. death, or " the bulk " of the property, ' I Jarm. Wills, 391 ; James, L. J., or what " he may save " out of income, in Lambe v. Eames, L. R. 6 Ch. 599. serve as examples. Hawkins Wills, 164, Some of the earlier chancery decisions citing i Bro. C. C. 179; 2 My. & K. of Sir John Leach and others put a 197; 10 Hare, 234. And see I Jarm. careful construction upon precatory ex- 396. But whatever difficulties might pressions. lb.; 5 Mad. 434; I Russ. have been supposed to stand in the 509; 2 My. & K. 197. way of enforcing a trust, the extent of * Cases supra; 2 Story Eq. Jur. which was hopelessly unascertained, a §§ 1069, 1070; I Jarm. Wills, 391, court of equity can measure the extent Bigelow's note; Bigelow, C. J., in War- of interest which adult or infant shall ner v. Bates, 98 Mass. 274, and cases take under a trust for his support, main- cited; Colton V. Colton, 127 U. S. 300. tenance, advancement, provision, etc., 658 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § Sg6 And we apprehend, furthermore, that precatory words may in some cases establish a trust so far that the donee must fairly exercise an honest discretion pursuant to the terms of the will, or else a court of equity is likely to control him.^ The words "wish," "desire," and the like, expressed where the testator bestows without reference to acts of one or another beneficiary may be presumed to have an imperative sense. ^ § 59^- Uncertainty in creating a Trust; Gift for Specified Purpose. — The question whether a trust is sufficiently created may also arise where the testamentary gift is made for some specified purpose and without precatory words. Where the declared purpose of the gift is for the benefit of the donee out of a fund larger, confessedly, than such adult or infant can claim, and some interest in which is given to an- other person. Wigram, V. C, in Thorp V. Owen, 2 Hare, 6io; Hawkins Wills, 165; 98 Mass. 274; 2 My. & K. 138. There may be a gift to A, a widow, for the benefit or support of herself and her children, so as to create a trust. 35 Me. 445 ; Loring v. Loring, roo Mass. 340; Woods V. Woods, I My. & Cr. 401. (2) As to uncertainty of objects. A gift to A, "hoping he will continue them in the family," was held too un- certain to create a trust. Harland v. Trigg, I Bro. C. C. 142. But if. Coop. III. So, too, with a gift coupled with a request to "take care of B and his family," etc. 10 Gill. & J. 159; 21 Conn. 259. But vagueness of object, though unquestionably a ground for holding that no trust was intended, may yet be countervailed by other considera- tions to the contrary, if only it clearly appears that a trust was intended. As when the gift is to A, " well knowing that she will dispose of the same in accord- ance with my views and wishes." 3 Mac. & G. 546. For, though circumstances may make it impossible to ascertain what are these views and wishes, the inference is that ■ the testator had a definite gift for the benefit of others in his own mind. On the whole the question seems to be whether as to the quantum given or the objects of the supposed trust, the testator intended that something definite or capable of ascertainment should go positively as indicated, or that he pur- posely left the amount or object indefi- nite with the idea of making suggestions to the donee for his own guidance and convenience rather than controlling him, and meaning that the donee shall him- self select amount or object at his own discretion. Thus, where the testator requests the donees to " distribute the fund as they think will be most agree- able to his wishes," no imperative trust is created. See Stead v. Mellor, 5 Ch. D. 225. Nor is a wife's direction in a will binding that her husband shall make certain gifts and mementos to such persons as she had verbally named and requested of him. 125 N. Y. 427. 1 See next section, where this prin- ciple of construction is applied ; i Jarm. Wills, 399; Raikes v. Ward, I Hare, 445; iDeG. &J. 352. 2 See § 263. 659 § $g6 LAW OF WILLS. [pART VI. and no one else, it is usually held that the gift is absolute notwithstanding, and that the donee may claim it without applying or binding himself to apply the money according to such purpose ; as if, for example, the legacy is specified to be given him to purchase a mill, a life-annuity, a dwelling-house, to maintain and educate him, set him up in business, and the like.i It follows that though the legatee thus named die before the stated purpose of the gift can be executed, having survived the testator, his legal representative shall take the gift ; for the gift has vested in point of interest, and no con- dition precedent was annexed to it.^ American cases hold, moreover, that a gift to enable a legatee to confer a bounty on others is not a trust, but a beneficial legacy to him ; ^ and this accords with the doctrine of our preceding section. The principle which underlies these cases is that equity will not compel that to be done which the legatee might undo the next moment by selling the thing to be purchased,* or rather that the gift vests absolutely in the donee, where a purpose is stated but not a positive condition of receiving. Yet here, as usual, the true scope of the gift and the testa- tor's intention must be studied in the context. If trustees are to hold the property for this donee and appropriate the income for the purpose stated, with a gift over in case he should alienate or become bankrupt, his right to receive the fund is intercepted ; ^ for the absolute enjoyment of the fund or JUS disponendi is here withheld from the beneficiary ; and where again the amount to be applied for his benefit is left to the discretion of trustees, his gift becomes correspondingly hmited.® 1 I Jarai. Wills, 397, and cases cited; * i Jarm. 397, Bigelow's note, citing Apreece v. Apreece, i V. & B. 364; 11 Rich. Eq. 238; ii S. C. 375. Knox v. Hotham, 15 Sim. 82; l6 lb. 45; < i Jarm. 398. A simple direction in 9 lb. 472; 28 Beav. 620. the will that the property be converted 2 Attwood V. Alford, L. R. 2 Eq. 479; does not exclude the principle of the 2 P. Wms. 308; Barnes v. Rowley, 3 text. lb. Ves. 305. This holds true semble, al- * Hatton v. May, 3 Ch. D. 148. though the gift is not immediate, but « See L. R. 7 Ch. 727; 3 K. & J subject to some prior life interest. Day 497; i Jarm. 397, 398. V. Day, 17 Jur. 586, cited in i Jarm. 397. Contra, L. R. 8 Eq. 262. 660 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 597 A Stronger motive for inferring a trust arises when the specified purpose or motive of the gift is the benefit of an- other person or persons and not of the primary donee alone. Here the principles already announced in considering preca- tory trusts must be applied, and the particular will subjected to its own natural interpretation. No positive rule can be laid down for all cases, but one of these three constructions may be gathered from the particular context and circum- stances : (i) that an imperative trust was intended ; (2) or that the primary donee may freely exercise his own discre- tion as to the quantum of benefit to the other person or per- sons, provided his discretion be honestly exercised ; (3) or that the expression of motive or purpose, being wholly nuga- tory, the primary donee's gift remains unabridged.^ § 597. The Same Subject : General Conclusion. — Upon the whole, although courts appear less disposed than formerly to conjure up a trust from doubtful and uncertain expressions of intent, and to recognize at length the testator's own pur- pose not to encumber his gift with obligations, but rather to express his own good will towards others while confiding their interests to his donee's sense of honor and fairness ; and although an expressed purpose should not be presumed to annex to the gift any condition ; yet the introduction of all such doubtful expressions into a will should be avoided, if possible, for it almost infallibly sets third parties gaping for something more than any legatee's free discretion is likely to bestow upon them, and more too, as a matter of right per- haps, than the testator himself had ever dreamed they should 1 In I Jarm. Wills, 399-404, the Eng- merly ascribed to words expressive of lish precedents which arise under these the purpose or motive of the gift. To three rules of construction are stated at these cases, which turn upon minute length. On the whole, Mr. Jarman con- differences of expression and circum- siders that the preponderance leans in stance, no extended reference is neces- favor of giving the primary donee a dis- sary. Among them are Jubber v. Jub- cretion which he must honestly exercise, ber, 9 Sim. 503; Hamley v. Gilbert, or in default subject himself to the con- Jac. 354; 10 Sim. 371; i Hare, 445; trol of the court; but with a tendency to Lambe v. Eames, L. R. 6 Ch. 597. narrow rather than extend the effect for- 661 § 598 LAW OF WILLS. [PAKT VI. receive ; ^ and out of the ill-feeling and disappointment comes litigation. No technical words are of course requisite for creating a trust if only the intention to do so be apparent in the instru- ment. Any donee or recipient of property may be adjudged a trustee thereof because of the obligations under which he takes it. And the effect where the intention to create the trust is sufficiently clear, but not the purpose or object of that trust, is to cast upon the devisees or legatees in trust (if they are pointed out distinctly) the legal interest in the gift, not however for their own benefit nor for the too uncer- tain objects, but for the person or persons in whom the law vests the property where one has died intestate.^ § 598. Testamentary Gifts upon Condition Precedent or Sub- sequent. — A testamentary gift may be upon some condition precedent or subsequent ; and to create such condition no particular form of words need be used, for if a corresponding purpose be read in the will, that purpose takes effect. No doubt it is desirable to employ such customary expressions more or less positive as " on condition that," " provided," ^ " if," and the like ; nevertheless, a mere devise or bequest to A, " he paying," or " he to pay ^500 to C," may amount to a condition if the context justifies that sense.* Any quali- fication, restriction, or limitation, annexed to a gift, and modifying or destroying essentially its full enjoyment and disposal, may be deemed a condition. But words of mere description or inducement for making the gift do not consti- tute a condition.^ Practical difficulty, however, is often 1 Caution in the employment of words ^ " In other words, the gift takes ef- which might give rise to a question of feet with respect to the legal interest, this sort is enforced by Mr. Jarman. but fails as to the beneficial ownership." "If a trust is intended to be created, i Jarm. 383. this should be done in clear and ex- ' Co. Lit. 236 b; 2 Jarm. Wills, I, 2. plicit terms; and if not, any request * The word " proviso " in modern or exhortation which the testator may times favors the idea of a fee upon choose to introduce should be accom- trust rather than a strict devise upon panied by a declaration that no trust or condition. Stanley v. Colt, 5 Wall. 119. legal obligation is intended to be im- ^ Denby Re, 3 De G. F. & J. 350; posed." 1 Jarm. Wills, 405. Porter Re, L. R. 2 P. & D. 22; Skip- 662 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 599 found in adjudging whether words or expressions annexed to a particular gift bound the donee to fulfil the description or were incidentally used by way of identifying him or express- ing the testator's motives ; whether or not a qualification, restriction, or limitation upon the gift was the true intent of the instrument. This question must, wherever it arises, depend upon the fair intendment of the particular will, aided, if need be, by extrinsic and explanatory proof. Conditions in wills, as in other instruments, may be prece- dent or subsequent ; in the one case, the estate or interest does not vest until the condition is fulfilled ; in the other, it is liable to be divested if the condition afterwards fails. The distinction is an obvious one in its consequences ; ^ but the obscure and ambiguous language of the will renders it in many cases very perplexing to tell whether the testator meant the one sort of condition or the other, if, indeed, he clearly apprehended the distinction at all. No criterion is afforded by the choice of technical expressions, but the prob- able intention of the testator must determine the construc- tion in every case of this kind.^ § 599. The Same Subject. — Instances of conditions prece- dent in a will occur not unfrequently in the reports. As where property is devised or bequeathed to A if he . lives to the age of twenty-five ; ^ or if he marries B * or into B's family,^ or marries with C's approbation (if C be living),^ otherwise over ; or upon condition that A shall release all with V. CabeU, 19 Gratt. 758. And see « 4 Kent Com. 124; Finlay v. King, supra, §§ 285-290, as to conditional or 3 Pet. 346. contingent wills. As to a condition annexed to a joint 1 See 4 Kent Com. 125, as to these gift, where one of the beneficiaries broke consequences. Precedent conditions the condition without concurrence of must be literally performed; and even the other, see Rockwell v. Swift, 59 a court of chancery will never vest an Conn. 289; Hayes v. Davis, 105 N. C. estate when by reason of a condition 482. precedent it will not vest in law. It " 8 Vin. Ab. 104, pi. 2. cannot relieve from the consequences * Davis r/. Angel, 31 Beav. 223,- 4 De of a condition precedent unperformed. G. F. & J. 524. But one who has himself prevented per- ^ 15 Ves. 248; Randall v. Payne, I formance cannot take advantage of the Bro. C. C. SS- non-performance. 4 Jones L. 249. »5 Vin. Ab. 343, pi. 41; 2 Jarm, Wills, 2, 3. 663 § 599 LAW OF WILLS. [PART VI. other right or claim out of the testator's estate ; ^ or if A be unmarried at a time implied or specified in the will ; ^ or after C ceases to be a widow, providing A shall live on the place and carry it on until that time ; ^ or with power to sell the property if the income proves insufficient.* A bequest to a college on condition that its name is changed before the tes- tator's decease fails unless strictly complied with, and legisla- tion to change the name comes too late if not procured during the testator's lifetime.^ Conditions subsequent are likewise illustrated in the books. As where A is excluded from the benefits of a will which devises in trust for him and his heirs unless his father shall settle upon him (as e.g., by his own devise) a specified estate.^ So, too, when an interest is given to A, coupled with a direc- tion that on some prescribed event, such as A's marriage without B's consent, it shall be forfeited, or so that it shall last as long as his conduct is discreet and approved by B and no longer.^ So where a house is devised upon condition that the devisee shall keep the house in good repair, otherwise over.* And in various gifts which are made conditional upon the maintenance or education of others specified by the will.* An estate is presumed to vest on the testator's death, rather than at a later date. Hence, if no intention to defer the period of vesting definitely appears, while a definite date for performing the condition after the testator's death ap- pears, or if there appears a vesting as usual, though upon probation, a condition subsequent rather than precedent may be inferred. But the preferable inference is that of a con- 1 WiUes, 153; Gillett v. Wray, i ^ 2 Jarm. Wills, 6, 7; 2 P. Wms. P. W. 284. 626; 2 Salk. 570; Lloyd v. Branton, 2 Ellis V. Ellis, I Sch. & L. i. 3 Mer. 108; Wynne v. Wynne, 2 M. * Marston v. Marston, 47 Me. 495. & Gr. 8. * Minot V. Prescott, 14 Mass. 495. « Tilden v. Tilden, 13 Gray, 103. See also 2 Jarm. Wills, 4, Bigelow's ° Smith v. Jewett, 40 N. H. 530. note; 20 N. J. Eq. 43, 218; Caw v. And see 10 Pick. 306; Hogeboom v. Robertson, i Seld. 125; 10 Watts, 179; Hall, 24 Wend. 146; Lindsey v. Lind- Nevens v. Gourley, 97 111. 365. sey, 45 Ind. 552; 41 Mich. 409; 3 ' Merrill v. Wisconsin Female Col- Woods C. C. 443; Morse v. Hayden, lege, 74 Wis. 415. 82 Me. 227; 79 Wis. 557. ^ Popham V. Bampfield, I Vern. 79. And see Cro. Eliz. 795. 664 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 599 dition precedent where the vesting appears deferred to some definite date after the will comes into operation, especially if by some prompt or decisive act, the condition may be per- formed or its alternative solved. Some cases reach also a readier conclusion that the condition is precedent and not subsequent, where it affects a pecuniary legacy or something to be raised out of the bulk of the estate and no more, 4;han where its operation must be to suspend the vesting of an entire residue or the main inheritance under the will. The condition subsequent better fits the adaptation of the will to peculiar and unforeseen exigencies which may arise after it has passed out of its maker's control ; for a court of equity may, and frequently does, relieve the donee from embarrass- ing conditions which turn out harsh, impossible, and uncon- scionable ; but to vest an interest in any one clear of its condition precedent, no matter how unjust or incapable of performance, that condition may prove, is beyond the scope of its authority.^ The acceptance of the gift compels one to comply with the condition annexed to it ; and the parties injured by his non-compliance are not without redress in law or equity.2 But while the devisee or legatee may be forced to comply with his condition, and those clearly entitled to the property upon a breach may even bring their writ of entry or other appropriate suit at law, equity is always indisposed to declare a forfeiture, and refuses its aid to divest a title under the will for breach of condition subsequent, affording relief rather against forfeiture whenever compensation in damages can be made in full of the injury.^ Conditions subsequent 1 2 Jartn. Wills, 9; Co. Lit. 206 b; Mon. 163; Roundel v. Currer, 2 Bro. Boyce v. Boyce, 16 Sim. 476; Marston C. C. 67. But a gift to A, on condition V. Marston, 47 Me. 495; 4 Kent Com. that he shall maintain the testator's son 124, 125. See, e.g., Davis v. Angel, 4 during the latter's minority, vests an De G. F. & J. 524, where the condition absolute title in A if the son dies before precedent was that the donee should the testator; because this is deemed a marry B, and it was shown that with gift on condition subsequent. MorSe v. the testator's own consent he had al- Hayden, 82 Me. 227. ready married C. The right to the gift 2 xilden v. Tilden, 13 Gray, 103. does not accrue as it would appear, * Smith v. Jewett, 40 N. H. 530; 4 where the condition is precedent, even Kent Com. 147; 2 Story Eq. Jur. §§ though act of God made the perform- 13IS1 I3I9- ance impossible. 29 Vt. 273; 13 B. 66s § 600 LAW OF WILLS. [pART VI, are construed beneficially in order to save, if possible, the vested estate or interest ; and if such condition prove illegal or incapable of performance, whether as against good morals, or as impossible under any circumstances, or as rendered im- possible in the particular case and under the existing circum- stances, the gift, whether of real or personal property, relieved of the condition, becomes absolute in effect.^ On the other hand, a condition precedent, impossible either in its creation or under the existing circumstances, or illegal, carries down in its defeat the gift whose vesting depended upon it, though the donee himself be blameless ; ^ and strict construction here avails little if it cannot pronounce that the will in reality im- posed no distinct condition precedent at all. In short, the standpoint both of donee and court is far more favorable for doing as substantial justice may require where the condition grows out of acceptance instead of obstructing it. § 600. The Same Subject. — As to the time required for performing or fulfilling a condition precedent or subsequent, this should be that period which the will prescribes, if the testator clearly expresses or indicates his wishes ; otherwise, a just and reasonable time, as the nature of the case and a fair construction of the instrument may import.* Some au- thorities contend that where the will specifies no time for performance, the donee shall have his whole lifetime;* but 1 Shep. Touch. 132, 133; 2 Jarm. act and default has made it such, unless Wills, 10-13; CoUett V. CoUettf 35 performance of the condition made evi- Beav. 312; Hervey-Bathurst v. Stanley, dently the sole motive of the bequest. 4 Ch. D. 272; Conrad v. Long, 33 2 De G. & S. 49; 2 Jarm. Wills, 12, 13. Mich. 78; 75 111.315; 4 Kent Com. See repugnant conditions, next section; 130; Parker v. Parker, 123 Mass. 584; Moore Re, 39 Ch. D. 116. Shepard v. Shepard, 57 Conn. 24. » 2 Jarm. Wills, 7, 8, and Bigelow's 2 Shep. Touch. 132, 133; 3 Bro. C. C. note; i Salk. 570; Gulliver o. Ashby, 67; 2 Jarm. Wills, 9-13; Boyce v. iW. Bl. 607; 2 Met. 495; S4Me. 291; Boyce, 16 Sim. 476; 97 N. C. 295. The Ward v. Patterson, 49 Penn. St. 372. civil law as adopted by courts of equity * Marshall, C. J., in Finlay v. King, appears to slightly alleviate this hard- 3 Pet. 346. In i Salk. 570, the devisee ship, where personalty is bequeathed, had his whole life for performance of by treating the gift as an absolute one the condition, and so may it be in other if the condition precedent must have cases; but "reasonable time" appears been known by the testator to be im- the only safe criterion, for one's death possible from its creation, or his own may happen very early or very late. 666 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 600 this is too broad a statement, and means no more, properly- understood, than to pledge a court of equity to favor one against the harsh operation of conditions, especially of con- ditions precedent, as generously as circumstances and a due interpretation of the will may permit, where the testator him- self has left the point open. On the other hand, as against the rigid prerequisites of the will in respect to time, equity is powerless,^ unless, indeed, the court can lay hold of other incidents, such as the failure to declare a gift over on non- performance, and thus wrest a reasonable extension of the donee's opportunity to perform out of the will's imperfect and not prohibitive expression.^ But conditions may be pronounced void when clearly re- pugnant to the gift to which they are annexed. As when, for example, a testator, after plainly devising lands in fee, proceeds to declare some restraint by way of proviso incom- patible with one's right of full dominion ; that the land shall be cultivated after a certain manner, or let forever upon a stated rent, or so that the devisee's interest shall be that of a life tenant merely.^ Dominion, too, involves the idea of beneficial enjoyment and alienation at pleasure ; and a condi- tion not to alienate freely is of course inconsistent with that right of full dominion which a fee imports.* Perhaps the construction of personal bequests above alluded to, where the testator appears to have annexed something which he must have known impossible by way of condition precedent, is explained on this same ground of clear repugnancy.^ That a plain and absolute gift of personalty is not to be controlled 1 As where the conditional donee was that next of kin shall establish their abroad, and did not know of the condi- claims in a year must be strictly com- tion precedent until it was too late to plied with, or the gift over will take choose whether to perform or not. 3 effect. Hartley Re, 34 Ch. D. 742. Mer. 7; Powell v. Rawle, L. R. 18 Eq. » 2 Jarm. Wills, 13, 14J Jac. 395; 243. Amb. 479. 2 See HoUinrake v. Lister, I Russ, * 2 Jarm. Wills, 14, and Bigelow's coo- 79 Wis. 557. note; Co. Lit. 206 b; Willis ». Hiscox, A devise on condition which names 4 My. & C. 201. But see §§ 601, 602 no time of performance is not barred by post. lapse of time. Page v. Whidden, 59 ^ Supra, § S99. and final note. N. H. 507. But a condition precedent § 60I LAW OF WILLS. [PART VI. and qualified by conditions totally repugnant to the interest given and its incidents follows as of course.^ And the gen- eral rule which upholds the meaning of a will against repug- nant words and clauses which cannot be reconciled with its leading purpose has elsewhere been stated.^ If a gift of income be absolute, conditions annexed by the will to the principal do not control the income.^ It comes, in fine, to a matter of rational construction ; and the general intention discoverable in the will, regarded as a consistent whole, should prevail. And while repugnant conditions or clauses must be stricken out in effect, nothing should be pronounced repugnant which amounts to a legal and proper qualification of the terms under which the gift is bestowed. But public policy may constitute an element in such cases besides ; and as conditions are here construed into conditions subsequent rather than precedent, — for conditions precedent are never favored in the construction of wills,* — the impossiblie, illegal, or impolitic condition being rejected, the gift stands abso- lute.5 The doctrine of conditions precedent or subsequent and repugnant, is often involved in the construction of deeds and written contracts ; and the illustrations borrowed from cases under those heads may subserve our discussion to bring out the leading principles more clearly, with perhaps the dif- ference that a will of all writings deserves the most flexible interpretation which can lay open the mind of its maker. § 60 1. Special Conditions considered ; Restrictions upon AUenation, etc. — There are, however, special conditions to be found in wills, by way of restricting, qualifying, or limiting the gift, which deserve our further attention. One of these is the restriction upon alienation. Out of favor to the devisee of lands, we find a great many cases, and especially the older 1 2 Jarm. Wills, 19; i Coll. 441 ; words, following a clear and absolute Graham v. Lee, 23 Beav. 388; Pearson gift, see § 595. V. Dolman, L. R. 3 Eq. 320. » McElwain v. Congregational So- 2 Supra, §§ 478, 518. And so, too, ciety, 153 Mass. 238. in considering the use of precatory * Supra, § 562. 6 Supfa, % 599. 668 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 60I ones, insisting very strongly upon the controlling force of technipal words which import a fee, so as to discard peremp- torily whatever words of qualification may follow, on the theory that a repugnant condition is attempted, which in consequence must be utterly void. A clause providing that land shall forever be let at a definite rent fails under this pro- hibition ; and yet, on the other hand, a clause that the rents of existing tenants shall never be raised is pronounced valid and not repugnant.^ In truth, however, the question is mainly one of intent under the particular will ; and courts stand up for justice and public policy when interpreting a will, and make the construction conform if possible. Rejection, for repugnancy is only one of its weapons for making out a lawful and reasonable disposition, and much of the artificial reasoning under this head amounts to nothing more. This consideration should guide us when examining the cases which relate to express restrictions upon alienation under a will. Conceding that a restraint upon alienation is per se repugnant to an estate in fee or absolute gift of any kind, it does not follow that such a condition must always be rejected as repugnant ; for the context may show that this restriction or qualification was of the very essence of the devise or bequest, and that no fee, no absolute gift, was con- templated at all, but a qualified gift, obnoxious in no respect to the law or public policy. We ask, then, what did the will mean, and whether its meaning was to qualify or restrain in a legal and proper manner, or, instead, to annex something to a clear gift incompatible with its propdr enjoyment, or in a legal sense impolitic and impossible ; and in the latter case the gift is pronounced good by throwing out the repugnant annexation, but in the former by treating the qualification as blended in the gift and a competent element ; while once more, as we have seen, if the impolitic or impossible were intended to precede the vesting of the gift, it would defeat the gift as a condition precedent, though not if meant for a condition subsequent, for this would render the gift absolute. 1 See section preceding; 2 Jarm. Wills, 656; Nourse v. Merriam, 8 Cush. II. 14, citing Tibbits v. Tibbits, 19 Yes. 669 § 602 LAW OF WILLS. [PAKT VI. Yet, we must admit that the rule of the common law which in general terms forbade one to annex to his grant or transfer of property otherwise absolute, the condition that it should not be alienated, was founded to some extent in public policy.^ § 602. The Same Subject. — The legal force of particular words in conferring a fee may of course interfere with a flex- ible interpretation of the testator's wishes in such cases. And upon a rigid adherence to the strict technical meaning of terms depend many of the precedents which refuse to treat the condition annexed as other than a repugnant qualification of the inseparable incidents to enjoyment. Thus, if lands are devised to A and his heirs, with condition that he shall not alienate, charge with annuity, and the like, the condition is void ; for the devise to A , and his heirs is literally inter- preted to carry a fee.^ A restraint of alienation in some specified mode is held void on similar grounds ; or a gift over if the devisee dies intestate or without selling ; or a proviso that he shall alienate to no one but B, or must alienate within a given time.^ Yet English cases support the view that a condition not to alienate to a particular class or person, or except to a particular class or person, or for some limited and reasonable period, is good.* The reason for such a dis- tinction does not appear ; perhaps it is that qualifications so fair blend more easily with a gift, and suit the presumed wishes of a testator better than the former and rather impolitic ones, by which a creditor would be impeded in collecting his honest claims against the owner. Some have denied this whole doctrine of the testator's right to restrain even for a day the power of alienation ; ^ and yet that the testator's gen- eral right to restrain the unfettered disposal of what he gives 1 Co. Lit. 223 a. East, 173; 2 Jarm. 17-19; Barnett v. 2 See Willis v. Hiscox, 4 My. & C. Blake, 2 Dr. & S. 117. But absolute 201 ; 109 Ind. 476. restraint upon alienation for a stated ' 2 Jarm. 14-17; L. R. 20 Eq. 189; time is void in law. Rosher v. Rosher, 8 D. M. & G. 152; Shaw v. Ford, 7 Ch. 26 Ch. D. 801. D. 669; 35 N. Y. 340, 617. 5 Christiancy, J., in Mandlebaum v. * Co. Lit. 223 a; Gill v. Pearson, 6 McDonnell, 29 Mich. 78. 670 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 602 by way of bounty to another exists in some sense can hardly be questioned.^ As to the gift of personal estate, restraints of alienafion have frequently been sustained, so long at least as they operate upon property which has not yet fallen into the donee's full possession and dominion ;2 for personalty must await pay^ ment and distribution, while real estate generally vests in enjoyment at once on the ancestor's death, the probate of the will relating back for that purpose. But to incumber a legacy to A, his executors, administrators, and assigns, with a general restraint upon its disposal or a gift over of what he does not spend or dispose of during his life, and the like, is held in the English chancery courts void for repugnancy, as in a devise.^ Whether, then, in realty or personalty, the true principle of rejecting the repugnant condition of a gift appears to be that, technically speaking, an absolute estate or interest has under the language of the will vested sufficiently in the devisee or legatee ; and having so vested, and in the case of personalty having vested moreover in the legatee's own possession and dominion, any further qualification upon the donee's absolute dominion over the property or upon its legal devolution must be inconsistent with the gift and consequently void. If there be more than this in the doctrine, it must con- sist in some ill-defined principle of public policy which a court of construction may lay hold of to defeat the testator's at- tempt to restrain alienation in some instances but not in others. For the testator's intention to qualify reasonably 1 See Bigelow's note to 2 Jarm. Wills, the creation of conditions against aliena- 14, 15, 18. A ground of distinction tion in the case of settlements upon a between English and American prece- married woman is well known. Schoul. dents under this head is suggested in Dom. Rel. §110. the larger scope of our public registry ^ Supra, §§ SS7-S59; 2 Jarm. Wills, system; for the English decisions ap- 19, 22; Churchill v. Marks, i Coll. 441. pear to be based upon the necessity of ^ Shaw v. Ford, 7 Ch. D. 669; 1 Ch. protecting creditors, whose means of as- D. 229; Henderson &. Cross, 29 Beav. certaining incumbrances upon title from 216; Hill w. Downes, 125 Mass. 506; the records are imperfect by compari- Dugdale Re, 38 Ch. 1). 176; 113 Ind. son. 91U. S. 716. See 133 Mass. 170. 18. That English courts of equity sanctioned 671 § 603 LAW OF WILLS. [PART VL what he chooses to bestow is not incapable of taking effect when not contrary to law ; and as we have elsewhere shown, a devise or bequest absolute in terms may be modified in effect by other clauses of the will, so as, for instance, to cut down what appears a fee to a life estate, and otherwise restrict the gift in accordance with the testator's meaning, though not so as to violate his intention. -^ It is true that the English chancery has usually treated an equitable life estate as alienable and liable for the life tenant's debts accordingly.^ Notwith- standing the long controversy, however, whether the rule of the common law against restraining alienation should be ap- plied to equitable life estates created under a will, the English chancery rule that this equitable life estate is alienable by the life tenant, subject to his debts, is not universally admitted in this country. On the contrary many of our state courts reject the theory and permit the trust to render the income inalien- able by appropriate words.^ §603. Conditions in Restraint of Marriage. — That public policy affects various special conditions which are treated under the head of repugnancy is undeniable. To take, for instance, the condition in restraint of marriage. Here we find numerous and subtle distinctions drawn out, all of which originate in the rule of the civilians that conditions in gen- eral restraint of marriage, although accompanied by a gift over, derogate from public policy and are void. This maxim is admitted in devises of real estate,* though the question more commonly arises in gifts of personalty, where the eccle- siastical courts, in dealing with legacies, borrowed freely from the Roman law and made this canon, among others, quite familiar to our jurisprudence.^ As an Anglo-Saxon doctrine, the rule finds important modi- fications. A condition in palpable and unqualified restraint 1 Supra, § 559. < 2 Jarm. Wills, 50; 9 East, 170; ° 18 Ves. 429. Jones v. Jones, i Q. B. D. 279. ' See Broadway National Bank v. * 2 Jarm. Wills, 43, 44; Bellairs v. Adams, 133 Mass. 170, with copious Bellairs, L. R. 18 Eq. 510. citations, where this subject is fully dis- cussed. And see § bo(> post. 672 CHAP. IV.J MISCELLANEOUS PROVISIONS CONSIDERED. § 603 of marriage, and to promote celibacy, is indeed void ; and public policy is violated whether the testator's object was to induce pure or impure celibacy, and whether he meant to re- strain marriage or made a gift whose natural operation is to restrain, without clearly intending that it should so operate.^ On the other hand, the canon of the civilians against such prohibition is not adopted in its full force ; the Anglo-Saxon' court gives more heed than did ever Roman tribunal, to the last wishes of a testator, though the will be unnatural, in- officious, or of doubtful legality ; and in some of the United States, though we trust not most of them, the disposition has been to repudiate English ecclesiastical precedents and yield to continental maxims and policy no greater respect because of this sort of spiritual sanction.'^ The modern genius of the age is to find out its own public policy and make that the rule of conduct. Hence are admitted various qualifications. A condition that a widow shall not marry again is in modern times universally upheld as valid.^ Our law puts the remarriage of a widower on the same ground, and permits gifts with corresponding condition to stand ;* though in this instance departing from the Roman ecclesiastical rule.^ Nor is a partial restraint upon marriage void ; such as a con- dition to marry or not marry with the consent of some one specified ; ® or to marry or not marry an individual or one of a class of individuals ; '^ or to marry or not marry with pre- scribed ceremonies* or under fair restrictions as to time, I2 Jarm. Wills, 43-54, and cases ^zjarm. 44. A gift " during widow- cited, Bigelow's notes; Allen v. Jack- hood" is no more than a gift for life, son, I Ch. D. 399; Bellairs v. Bellairs, 8 Md. 517. supra; Cornell z/. Lovett, 35 Penn. St. * 2 Vern. 573; Dashwood v. Bulke- 100; Jones V. Jones, i Q. B. D. 279. ley, 10 Yes. 230. As to marriage with '^ 2 Jarm. Wills, 44. consent of trustees, such consent is mat- ' 2 Sim. N. S. 25s; Allen v. Jackson, ter of substance rather than form. 44 I Ch. D. 339; Cornell v. Lovett, 35 Ch. D. 654. Penn. St. 100; Hibbits v. Jack, 97 Ind. ' Graydon v. Graydon, 23 N. J. Eq. 570; 91 Ind. 266; 34 Ch. D. 362; 229; I Vern. 19; Davis v. Angel, 4 D. Martin v. Seigler, 32 S. C. 267. And F. & J. 524; Hodgson v. Halford, 11 this holds whether the bequest is by Ch. D. 959; 16 Ch. D. 188; Phillips v. the husband or some other person. Ferguson, 85 Va. 509. Newton v. Marsden, 2 J. & H. 356. « I Moll. 61 1 ; 2 Jarm. Wills, 44. * Allen V. Jackson, and Cornell v. Lovett, supra. § 603 LAW OF WILLS. [part VI. place, age, and other circumstances ; ^ supposing, of course, that all such conditions are bona fide, that compliance or non-compliance therewith is from the nature of things prac* ticable, and that nothing irrational, no covert restraint or prohibition, no violation of policy in other respects, is in- volved in a gift so qualified.^ ■ Another modification of the rule, which leads, it must be confessed, to some fine and not very satisfactory distinctions, and yet has reason and Roman precedent on its side, is this : that a bequest during celibacy,, a bona fide provision for one's maintenance while unmarried, and especially for a legatee who had a more natural claim upon the testator's bounty as a single person than if married, will be upheld ; ^ and no beneficial gift of this kind can be perverted in construction to an injurious and merely conditional one. And so, too, a gift of income or support to A, for life, or " as long as she remains my widow," is less obnoxious than a gift which annexes the condition against re-marriage peremptorily, and may be upheld more confidently, for this is a limitation rather than a condition.* In all cases where conditions in apparent restraint of mar- riage come into view, it may be an important consideration whether or not the testator has declared a gift over on breach of the condition. In a mere provision for support during celibacy, no gift over is needful ; for the bequest is essen- tially of a temporary and limited kind.^ And a gift in gen- eral restraint of marriage is void whether a gift over accom- panies it or not.^ But if the gift be properly a conditional one, courts frequently pronounce the restraint, though a permitted one, mere in terrorem. words, unless a gift over for breach is added, to make forfeiture complete and show that i 30 W. Va. 171. Where the gift over in such a case is " 2 Jarm. Wills, 45-50. stated to be on the wife's death, it may ' 2 Jarm. Wills, 45. The distinction be a question whether or not, upon her does not hold in gifts of real estate, inarriage, the gift over takes immediate Jones V. Jones, I Q. B. D. 274; Heath effect. Tredwell Re, 2 Ch. (1S91) 640. V. Lewis, 3 D. M. & G. 954. » Heath v. Lewis, 3 D. M. & G. 954. * Summit v. Vount, 109 Ind. 506; « Bellairs v. Bellairs, L. R. 18 Eq, Knight V. Mahoney, 152 Mass. 523; 510; 2 Jarni. 44. Brotzman's Appeal, 133 Penn. St. 478. 674 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 604 the testator was really in earnest.^ This in terforem doctrine explores in slippery places ; nor are the instances few where conditions precedent appear to have been thus treated; and the legatee's title made absolute, though, logically speaking, it is only in conditions subsequent where the rejection of qualifying terms should leave the gift positive and secure.^ But, at all events, a testator has no assurance that his words forbidding marriage with a particular personj or under age, or without the consent of another, or by way of imposing any permitted restraint (except that best founded one as to a widow's remarriage)^ will be treated in cohstriictioil as more than an empty threat, unless accompanied by a gift over of the property in case of non-complianee with the condition.^ § 604. Condition as to Sesidence, assuming Name, main- taining Good Character, etc. — A condition requiring or for- bidding constant residence in some particular place or at some particular house is either to be reasonably interpreted, if possible, or else pronounced void as unreasonable of itself and obnoxious to public policy ; and this latter view is always tehabld where the restraint must so operate as to involve the donee in some breach of pernianent duty, ias for example, in compelling married persons to live apart.* A condition may favor the obligations of marriagfe, but it cannot discourage therfi.^ Oi-diharily one who is to be supported under a pro- 1 2 Jarm. WiUs, 45* and various cases atioh daring the woman's Coverture even cited; Lloyd v. Branton, 3 Mer. 108 ; if the restriction is made while she was Duddy V. Gresham, 2 L. R. Ir. 442; unmarried. 21 Fla. 62^. Cornell v. Lovett, 35 Penn. St. lodj * See 2 Jarm. Wills, 57, 58; Wilkiil- Maddox v. Maddox, 11 Gratt. 804; son v. Wilkinson, L. R. 12 Eq. 604; Harmon v. Brown, 53 Ind. 207; Daw- 54 Hun, 552; Conrad v. Long, 33 son V. Oliver-Massey, 2 Ch. D. 753; Mich. ^9. A life annuity to A, to cease Otis V. Prince, 10 Gray, 581. when A and B should cease to reside 2 Various reasons have been assigned together, is not determined by B's death, for this in terrorem. doctrine; and, as Sutcliffe v. Richardson, L. R. 13 E<1; Mr. Jarman has observed, they savor 606. of excessive refinement. The truth is, « 3 Demarest, 108; Moore i?,f, 39 Ch. that the notion of public policy here, as D. 1 16; Hawke v. Euyart, 30 Neb. 149. in other instances of the kind, vacillates The cases on this point turi somewhat in the judicial mind, and various shifts closely, out of deference to the^ power are contrived in consequence. one has to provide for a legatee's tem- » See 2 Jarm. 46. A separate equita- porary support without directly anne*- ble estate may be restrained as to alien- ing a Condition to the gift^ Thus a gift; § 604 LAW OF WILLS. [PART VL vision in a will is not limited to live in a particular place, especially if there be good reason for leaving it.^ But a con- dition that an infant shall live during minority with a suit- able person named as sole guide and guardian may be upheld under most circumstances.^ A gift may be made on condition that the devisee or legatee shall assume the testator's or some other specified name. Such a condition should be fairly construed, and of course fairly complied with, though a formal change of name under act of the legislature is not in all cases indispensable.^ A gift may be made on condition of good conduct and remaining in the homestead for a prescribed period.* In many other instances conditions clear of meaning are upheld as violating no rule of policy. As in a gift on condi- tion that a certain chapel is built in three years,^ or on condi- tion of rearing in a prescribed religious faith,^ or on condition of trying to defeat a pending lawsuit against the testator,'^ or on condition that the parties become reconciled.® A gift may be made to a grandson of capital held in trust to be paid him on his arrival at a prescribed age (the income payable to him meanwhile), if, in the judgment of the executors, he has learned a useful trade, business, or profession, and is of good moral character.^ A gift may be made on condition of rendering life support to another.^" Or on condition of the to a married woman of income so long ^ See 2 Jann. Wills, 57; i Ch. D. 441 ; as she should remain A's wife, with a Barlow v. Bateman, 3 P. W. 65. provision that if she should be left a * A gift of this character to a servant widow or for any cause should cease to girl of eighteen, if she remained in the be A's wife, she should have the princi- family until twenty-one, and conducted pal, was held valid in Thayer v. Spear, herself as hitherto, was held forfeited, 58 Vt. 327. For here, as the court where she had a bastard child at nine- remarks, there was no direct induce- teen and was turned out of the house, ment held out to separation. See also, Reuff z<. Coleman, 30 W. Va. 171. where the gift was upon condition, but ' Tappan's Appeal, 52 Conn. 412. the inducement indirect. Born v. Horst- * Magee v. O'Neill, 19 S. C. 170. mann, 80 Cal. 452. ' Cannon v. Apperson, 14 Lea, 553. 1 Proctor w. Proctor, 141 Mass. 165. * Page v. Frazer, 14 Bush, 205. ^ Johnson v. Warren, 74 Mich. 491. ' Webster v. Morris, 66 Wis. 366. There may be a devise to A of a farm And see 59 Hun. 615. with a condition precedent of " moving l" Irvine v. Irvine (Ky.) 1891. upon" it, otherwise a devise over. Robertson v. Mowell, 66 Md. 530, 565. CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 60S reformation of a dissipated beneficiary.^ That a condition not uncertain or ambiguous happens to be injudicious is insufficient reason for setting it aside, but all conditions should be justly and reasonably construed. § 605. Condition not to dispute the Will, etc. — Modem wills seek, in some instances, to prevent litigation, by for- bidding the beneficiaries named to dispute the will. The law on this point is likely to be more firmly settled hereafter than it is at present. To exclude all contest of the probate on reasonable ground that the testator was insane or unduly influ- enced when he made it is to intrench fraud and coercion more securely ; and public policy should not concede that a legatee, no matter what ground of litigation existed, must for- feit his legacy if the will is finally admitted. As for con- struction proceedings, the testator's own language may have rendered them necessary. On the other hand, while the pro- bate of the disputed will does not conclude that there was no just cause for opposing it, the testator's last wishes are au- thenticated as he expressed them ; and both in probate and construction proceedings, all speculative and heartless litiga- tion, by which so many estates have been wasted, may well be discountenanced. No arbitrary rule meets well the cases likely to arise under this head, but circumstances ought to influence the construction. The English rule applied to legacies seems the true one ; namely, to treat a condition not to dispute the will as in terrorem, and void against sound policy, wherever it appears that the legatee had probable cause for contesting the valid- ity or effect of the will, though not otherwise.^ And if the maxim is a just one, it ought to avail as well in a devise ; and generally, unless, perhaps, the language of the particular gift and circumstances require the restraint to be interpreted as a strict condition precedent.^ But Mr. Jarman shows that 1 See Burnham v. Burnham, 79 Wis. are usually found as conditions subse- 557; Hawke w. Euyart, 30 Neb. 149. quent. Yet we have seen that the doc- ^ 2 Vern. 90; 3 P. W. 344; Morris trine avails quite freely even vphere the V. Burroughs, I Atk. 404; 2 Jarm. conditions seem imposed rather as pre- Wills, 59. cedent to the gift. Supra, § 603. ^ Restraints of marriage in terrorem 677 § 6os LAW OF WILLS. [part VI. this doctrine has been denied where lands were concerned,* and even intimates that the in terrorem of such conditions where personalty is given has no greater force than in the permitted restraints of marriage ; so that a gift over of the legacy, upon a breach, will make the condition good.^ In this country the question appears still an open one, though a few decisions bearing upon the point may be found. All clauses or provisions of this character should at least be construed as strictly as possible, being penal in their operation.^ In some States the bona fide inquiry whether a will was procured though fraud or undue influence is not to be stifled by any prohibition contained in the instru- ment itself.* But in other States such conditions are lately pronounced valid, both as to real and personal property.^ 1 Cooke V. Turner, 15 M. & W. 727; 14 Sim. 493. It was here argued that the condition was void as being " con- trary to the liberty of the law," an ex- pression to be found in Shep. Touch. 132, which seems pertinent, though these words, to be sure, might mean some- thing else. The court responded that there was no policy of the law involved on one side or the other; that marriage, trade, agriculture, and the like, may trench on the liberty of the law, but it is immaterial to the public whether land is enjoyed by the heir or the devisee. This statement appears hardly satisfac- tory. Is it not fo;r the interest of the public that doubtful issues of authenticity as to one's will should be fairly adjudi- cated? Collusive proceedings for pro- curing divorce are not permitted; nor should fraud protect fraud in securing a probate. See Hoit v. Hoit, 42 N. J. E_q. 388. 2 2 Jarm. 58, citing 2 P. Wms. 528, and II W. R. 935. " Chew's Appeal, 45 Penn. St. 228. * Lee v. Colston, 5 T. B. Mon. 246; Jackson v, Westervelt, 61 How. Pr. 399. ^ Thompson v. Grant, 14 Lea, 310; Donegan v. Wade, 70 Ala. 501 ; Brad- ford V. Bradford, 19 Ohio St. 546. i Redf. Wills, 679, supports this latter view. " If any or either of my children shall enter a caveat against this my will, he or they shall pay expenses of both sides," is a good condition without a gift over, agai^ist a devisee taking real estate under flie will. Hoit v. Hoit, 42 N. J. Eq. 388. These conditions are pronounced valid and legal. Not to dispute a person's legitimacy. Stapilton v. Stapilton, I Atk. 2. Not to become a nun. Dick- son's Trust, I Sim. N. S. 37. Not to interfere with the management of guard- ians. Jac. 257n. Not to interfere with the trustees (as to an annuitant). 45 Ch. n. 426. Not to bring in a bill against the estate. See Famham v. Baker, 148 Mass. 204. None of these, however, it is submitted, are so obnoxious to sound policy as the condition not to contest the will where reasonable cause for a contest may exist, and either there is fundamental doubt whether the will was the testator's own or the disposition is so doubtfully expressed that only a court can decide what it really meant. A legacy may be given to a testator's step-son, on condition that the latter's mother, the wife of the testator, does not elect under the statute to take against what the will provides for her. Carr's Estate, 138 Penn. St. 352. 678 CHAP. IV.J MISCELLANEOUS PROVISIONS CONSIDERED. § 6o6 § 606. Conditions against Bankruptcy or Insolvency. — One more condition to be noted is that which seeks to protect against the donee's bankruptcy or insolvency. A will which purports to vest in a devisee or legatee either real or per- sonal property or the income of real or personal property, and secure to him its enjoyment free from liability for his debts, is void on grounds of public policy, not to add repug- nancy, as being in fraud of the rights of creditors ; or, in other words, because it takes away another of the incidents of property as essential as the right to dispose of it.^ We have already 2 commented upon the indisposition of chancery to permit the fettering of alienation, and one consequence of the right to alienate is the subjection of the owner's property to his debts. Bankruptcy or insolvency operates as a transfer of one's property by act of law, and an exemption against this mode of transfer is not to be created by a gift.^ But the dis- tinction noted in restraints upon marriage avails once more to distinguish in sense a gift upon condition from a mere limita- tion. Thus, a gift of the income of property, real or personal, to cease on the bankruptcy or insolvency of the devisee, is held good;* for no absolute transfer is here intended, but only a provision during solvency, an encouragement to the punctual discharge of one's debts, which neither the law nor public policy can denounce. But upon a further extension of this principle, the cases are somewhat discordant ; though the main principle which runs through them appears to be that if the devise or bequest over vests any interest in the bankrupt or insolvent himself, anything which he is to receive and enjoy whether by himself or separably in connec- tion with others, it may be paid over to his assignee and appropriated to his debts.^ No method then finds clear sup- 1 2jann.Wills,22; Nichols !<. Eaton, hast w. Bradford, J R. I. 205; Nichols 91 U. S. 716; Brandon v. Robinson, 18 v. Eaton, 91 U. S- 716. Notwithstand- Ves. 429, 433; Mr. Justice Miller, in ing the annulment of an insolvency, the Nichols V. Eaton, supra. forfeiture took effect in Broughton Re, 2 Supra, § 601. W. N. 109. See, further, Metcalfe v. ' Nichols V. Eaton, supra. Metcalfe, 3 Ch. (1891) i. * Brandon v. Robinson, 18 Ves. 433; ^ Lewin Trusts, 80; Nichols v. Eaton, I Bro. C. C. 274; 2 Jarm. 25-42, and supra; Samuel v. Samuel, 12 Ch. D. cases cited; Lewin Trusts, 80; Tilling- 125; 2 Jarm. 23, 30, and cases cited. § 6o6 LAW OF WILLS. [PART VI. port to enable a testator to settle the property for the direct and exclusive behoof of his beneficiary through all vicissi- tudes of fortune. But instead of making the trust simply cease and determine upon his bankruptcy or insolvency, the will may provide that in such event that part of the income shall go to some other person or persons specified, and even to wife and children, since their interests are distinct from his own. Leading American cases, and perhaps the weight of English authority, favor this further proposition : that if the gift over is declared for the support of the bankrupt and his family in such manner as the trustees may think proper, there is nothing left to which creditors or the assignee in bankruptcy can 'assert a valid claim ;^ and a payment volun- tarily made to the bankrupt under the terms of such discre- tion is not to be disturbed.^ The earlier English rule, which several of our State courts follow, treats an equitable life estate given under a will, as so inseparably subject to the debts of the beneficiary, besides being alienable by him, that no provision, however explicit, which does not operate as a cesser or limitation of the estate itself, can protect it from creditors.^ But various other States have rejected that rule, regarding it sound policy that a testator shall bestow his own property in trust with a pru- dent regard to the vicissitudes which the object of his bounty is liable to encounter or to the dangers of his improvidence. Accordingly they permit him to qualify his gift, without cesser or limitation at all, by any provision, whether express or implied, direct or indirect, to the effect that the beneficiary's 1 Nichols V. Eaton, 91 U. S. 716; not clearly in favor of this view, and Easterley v. Keney, 36 Conn. 18; Two- that such provisions tend to evade the penny v. Peyton, 10 Sim. 487; Godden older policy of the law, it is here main- s'. Crowhurst, ib. 642. And see Shank- tained that the measure of the rights of land's Appeal, 47 Penn. St. 113; Nickell creditors, and the policy of subjecting V. Handy, 10 Gratt. 336; Campbell v. property to one's debts under all cir- Foster, 35 N. Y. 361 ; Pope v. Elliott, cumstances, is not so strongly adverse 8 B. Mon. 56. to the debtor in American States at the 2 See Nichols v. Eaton, supra, to this present day as the English chancery effect. In the opinion of the court by courts have been wont to define it. See Mr. Justice Miller, the cases are exhaus- numerous State decisions here cited, tively collected and commented upon. ^ Cases supra; 5 R. I.. 205; 4 Rich. Admitting that the English cases are Eq. 131. 680 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 6o8 right to receive income shall not be alienable by him in anticipation nor subject to be taken by his creditors in advance of payment to him.^ § 607. Iiimitation, etc., distinguished from Condition. — One result of our investigation is to confirm the distinction which the law makes between gifts upon condition and gifts upon some limitation, conditional or otherwise. A devise or be- quest is by way of limitation when the estate or interest thereby created is bounded or circumscribed in time, so that it cannot last beyond the happening of a stated contingency. The conditional limitation is of a mixed nature, partaking of both condition and limitation ; and here the condition is followed by a limitation over to a third person in case the condition be unfulfilled or broken. Thus, a simple gift of property on condition that A shall not remarry is a gift upon condition ; a gift on condition that A shall not remarry, otherwise over to C, is a gift upon conditional limitation, and more likely to involve forfeiture on breach of the condition ; while a gift which carries the beneficial enjoyment of income to A until his remarriage and no longer, is a gift upon limi- tation and cannot endure after A marries again.^ A testator as the reader has seen may place limitations, not too remote, upon his gift of real or personal property. § 608. Rights and Duties of Testamentary Trustees. — Trusts, or those rights of property which one party holds for the benefit of another, are cognizable in courts of chancery, and may originate in a variety of ways, with or without formal writings, and whether the holder was selected as a trustee or not. The trust itself arising expressly or by nec- essary inference, equity will not suffer the trust to fail for iRife V. Geyer, 59 Penn. St. 393; they "support their father during his White V. White, 30 Vt. 338; 8 B. Mon. life." 146 Mass. 369. 56; Broadway National Bank z/. Adams, = See 4 Kent Com. I2Z, 126; siipra, 133 Mass. 170; 151 Mass. 266: 91 U. S. § 603; Whiting v. Whiting, 42 Minn. 716, and cases cited. One indirect way 548. In Preston Estates, i Washburn of thus keeping out A's creditors is for Real Property, and other works which the testator to give the property to A's treat of real estate, these distinctions are daughters subject to the condition that further illustrated. 681 § 608 LAW OF WJLiS. [part VI. want of a trustee nor disclaim its inherent jurisdiction to appoint, fill, and create vacancies and supervise the execution of the trust in the interest of the beneficiaries concerned, And the quality and continuance of the trustee's interest in the property under his charge and control must be deter- mined by the purpose and exigency of the trust, which may, as circumstances direct, amount to an estate, interest, or mere power in or affecting the property in question.^ There may be express trusts, implied trusts, resulting trusts, or constructive trusts ; but the operation and policy of the Statute of Frauds and our modern wills acts is to reduce testamentary trusts to the head of express trusts and require them to be created and evidenced by a written instrument duly signed and witnessed. Where the validity of the trust depends upon the effect of the will in transferring title to the property, the will must be executed according to the statute, or it cannot be used as a declaration and proof of the trust.2 Into the general law of trusts and trustees we need not enter. But of testamentary trusts we may observe that pro- bate legislation and practice, especially in the United States, tends at the present day to assimilate such trustees, as to their credentials, the method of their appointment and removal, and the supervision of their functions, to the executor. Wherever, in fact, the testator intends that some trust shall be carried out with reference to the residue of his estate or some por- tion thereof, wherever there is something more to be done than simply to pay off all debts, demands, and legacies, wind up the affairs and the property, and distribute the balance among the objects designated by the will or statute, permit- ting both realty and personalty to go absolutely and forever to certain parties, it is proper that the will should declare a trust and designate the trustee or trustees.* Not that the 1 See Hill Trustees, 49, 214, 229; tention of the testator or the nature of Perry Trusts, §§ 1-72. the gift requires it. But the usual and ? Hill Trustees, 61; Perry Trusts, preferable sense of the term describes §§ 90-93; Lewin Trusts, 66. a fiduciary estate or technical trust.. The words "in trust" in a will may King v. Mitchell, 8 Pet. 326. be construed to create a use if the in- ' In the simple devise of a dwelling- 682 GHAP. IV.] MISCELLANEOUS, PROVISIONS CONSIDERED. § 609 trust necessarily fails because no trustee is napied, any more than a will which names no executor ; one may appoint the same persons to be both executors and trustees under his will, or he may appoint different ones; but if the will imports a trust, some trustee or trustees should hold the fund and carry out the particular purpose. The advantage of this is obvious ; the testator's intentions, if the court ap- prove the selection, will be carried out by those of his own choice ; and, to speak more generally, not only does a legal title support various expectant and contingent or uncertain interests held in suspense, and conditions or restraints upon the dominion of property, which otherwise might fail, but the whole purpose of one's will is executed by some third party who holds the scales between present and future beneficiaries and all contending parties in interest. § 609. The Same Subject. — Two questions are of impor- tance respecting the nature and quality of the estate taken by trustees under a will : (i) What is the quantum of estate and interest, beneficial as well as legal, vested in them for the active purposes (if any) of the trusts reposed in them ; (2) What becomes of the legal estate (if any) remaining after the active purposes of the trusts are satisfied ; whether it remains in the trustees or passes from them to the cestuisque trust ; in other words, whether the estates of persons benefi- cially interested are equitable or legal.^ Some artificial dis- tinctions have here been taken in devises of land out of respect to the early Statute of Uses, which preceded the Statute of Wills. But the modern rule, which is a,ided in England by the statute of Victoria and in this country by local legislation, inclines to vest in trustees a legal estate sufficient for the execution of the trust as £^n incident to the trust in all cases ; at the same time limiting that legal estate to what may be requisite for a complete execution of the trust.^ house to one's widow for life and over 1 Hawkins WiUs, 140; 2 Jarai. Wills, in fee to the children, wills frequently 291 etseq. declare no trust. But where the. gift is 2 See this subject discussed at due more complex as to subject or objects, length by general writers on the law of trustees to hold the fund are desirable, trusts, Perry and Lewm more partiou- 683 § 6lO LAW OF WILLS. [PART VI. Legislation in our several States tends to simplify the administration of testamentary trusts by bringing such trus- tees under the immediate supervision of the probate court, instead of leaving all to the more indefinite direction of chan- cery. The same tribunal which authenticates the will and issues letters testamentary to the executor appoints or con- firms the appointment of the will by granting letters of trus- teeship under its seal in like manner. By the time the decedent's estate is sufficiently advanced in settlement, the trustee named in the will presents a suitable petition, upon the hearing of which the court grants the letters at discre- tion ; and so, too, wherever a vacancy exists by reason of declination or otherwise. Before his credentials issue he must file a bond with sufficient surety approved by the court, unless the will has requested otherwise ; and his letters may be revoked on good cause and some one else appointed, the court regarding the security and interests of the beneficiaries in all cases. The executor transfers the trust fund to the trustee thus officially vested with authority to receive it, crediting himself in his accounts accordingly and closing the accounts when his functions are fully performed ; and the trustee, returning his own inventory and regular accounts from time to time, carries on the bookkeeping of the estate, or rather of the fund under his own direction, as matter of public record,, and under the supervision of the court of pro- bate and of the appellate tribunal which exercises equity jurisdiction, until the trust is completely discharged.^ § 6lO. Trusts which are Invalid or liable to be set aside. — Various trusts which a testator may have attempted to create are pronounced invalid or liable to be set aside. Thus, where a will undertakes to make a person trustee for his own benefit during his life the trust is void ; for, in order to con- larly. See also Young v. Bradley, loi 2 Jarm. Wills, 289-323, Bigelow's note U. S. 782; Stat. I Vict. c. 26, §§ 30, and numerous cases cited. 31; Hawkins V^fills, 140-158; Doe v. 1 See statutes of the several States, Nichols, I B. & C. 336; Blagrave v. which enter fully into the details of such Blagrave, 4 Ex. 550; n Ad. & El. 188; probate jurisdiction. Barker v. Greenwood, 4 M. & W. 421; 684 CHAP. IV.] MISCELLANEOUS PROVISIONS CONSIDERED. § 6lO stitute a valid trust, a trustee, the beneficiary and property, are three distinct essentials, and without each of the three a trust cannot exist.^ The same person cannot be at the same time trustee and beneficiary of the same identical interest. Moreover, a court of equity will order trust property under a will to be conveyed by the trustee to the beneficiary, where there was what is called a dry trust, or where the purposes of the trust have been accomplished, or where no good reason appears why the trust should continue and all the persons interested in it are sui Juris and desire the trust terminated. Thus, as instance of a dry trust, an unqualified gift of the use, income, and improvement of personal property, vests, as we have seen, an absolute interest in the beneficiary, unless the will shows a different intention ; and especially does this hold true where there is no gift over of the capital.^ Should the testator, therefore, have directed a trust for paying such income to his beneficiary, the latter, if of age and sui juris, may have that trust set aside in equity as a dry one and enjoy the property absolutely, unless the court is convinced that good reason exists to the contrary.^ 1 Rose V. Hatch, 125 N. Y. 427; 115 ' lb.; 149 Mass. 22; Perry Trusts, N. Y. 346, 357. § 920. 2 Supra, § 507, and cases cited. 685 t85 APPENDIX. A. LEADING WILLS ACTS, ENGLISH AND AMERICAN.^ I. English Statute i Vict. c. 26. An Act for the amendment of the Laws with respect to Wills. [3d July, 1837.] Be it enacted, that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows : (that is to say) the word "will" shall extend to a testament, and to a codi- cil, and to an appointment by will or by writing in the naturfe of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of an act passed in the twelfth year of the reign of King Charles the Second, intituled An act for taking away the court of 'Wards and liiieries and tenures, in capite and by knights seriiice, and purveyance, and for settling a revenue upon his majesty in lieU thereof, or by virtue of an act passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled An act for taking away the court of wards and liv- eries and tenures, in capite and by knights service, and to any other testa- mentary disposition ; and the words "real estate" shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or topyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; and the words "personal estate" shall extend to leasehold estates and other chattels real, and also to moneys, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or adminis- 1 The Leading Wills Acts here given the wills legislation of one or another are those of England and of four of the of the four States here selected, the United States, viz. : Massachusetts, New leading colonies before American inde- York, Pennsylvania, and Virginia. The pendence was declared, each with its English statute of 1837 marks a new own peculiar traits and policy, has epoch in the testamentary jurisprudence most influenced the enactments of the of the mother conntry. In this Country, later settled States and Territories. 6Z7 688 APPENDIX. trator, and to any share or interest therein ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. II. And be it further enacted, that an act passed in the thirty-second year of the reign of King Henry the Eighth, intituled The act of wills, wards, and primer seisins, whereby a man m.ay devise two parts of his land; and also an act passed in the thirty-fourth and thirty-fifth years of the reign of the said King Henry the Eighth, intituled The bill concerning the explanation of wills ; and also an act passed in the parliament of Ireland, in the tenth year of the reign of King Charles the First, intituled An act how lands, tenements, etc., may be disposed by will or otherwise and concerning wards and primer seisins ; and also so much of an act passed in the twenty-ninth year of the reign of King Charles the Second, intituled An act for prevention of frauds and perjuries, and of an act passed in the parliament of Ireland in the seventh year of the reign of King William the Third, intituled An act for preven- tion of frauds and perjuries, as relates to devises or bequests of lands or tenements, or to the revocation or alteration of any devise in writing of any lands, tenements, or hereditaments, or any clause thereof, or to the devise of any estate pur autre vie, or to any such estates being assets, or to nuncupative wills, or to the repeal, altering, or changing of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein ; and also so much of an act passed in the fourth and fifth years of the reign of Queen Anne, intituled An act for the amend- ment of the law and the better advancement of justice, and of an act passed in the parliament of Ireland in the sixth year of the reign of Queen Anne, intituled An act for the amendment of the law and the better advancement of justice, as relates to witnesses to nuncupative wills ; and also so much of an act passed in the fourteenth year of the reign of King George the Sec- ond, intituled An act to amend the law concerning common recoveries, and to explain and amend an act made in the twenty-ninth year of the reign of King Charles the Second, intituled "An cut for prevention of frauds and perjuries," as relates to estates pur autre vie; and also an act passed in the twenty-fifth year of the reign of King George the Second, intituled An act for avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning reed estates in that part of Great Britain called England, and in his majesty'' s colonies and plantations in America, except so far as relates to his majesty's colonies and plantations in America ; and also an act passed in the parliament of Ireland in the same twenty-fifth year of the reign of King George the Sec- ond, intituled An act for the avoiding and putting an end to certain doubts and questions relating to the attestations of wills and codicils concerning real estates ; and also an act passed in the fifty-fifth year of the reign of King George the Third, intituled An act to remove certain difficulties in LEADING WILLS ACTS. 689 the disposition of copyhold estates by will, shall be and the same are hereby repealed, except so far as the same acts or any of them respectively relate to any wills or estates pur autre vie, to which this act does not extend. III. And be it fiirther enacted, that it shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator ; and that the power here- by given shall extend to all real estate of the nature of customary freehold or tenant right, or customary or copyhold, notwithstanding that the testa- tor may not have surrendered the same to the use of his will, or notwith- standing that, being entitled as heir, devisee, or otherwise, to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power contained in this act, if this act had not been made ; and also to estates pur autre vie, whether there shall or shall not be any special occu- pant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament ; and also to all contingent, executory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry ; and also to such of the same estates, interests, and rights respectively, and other real and personal estate as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the. execution of his will. IV.i Provided, always, and be it further enacted, that where any real estate of the nature of customary freehold or tenant right, or customary or copyhold, might by the custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator shall not have surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will, shall be entitled to be ad- mitted, except upon payment of all such stamp duties, fees, and sums of 1 See 4 & 5 Vict. c. 35, §§ 88-90. 690 APPENDIX. money as wcmlci have been lawfully due and payable in respect of the sur- rendering of such real estate to the use of the -will, or in respect of present- ing, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator : Provided also, that where the testator was entitled to have been admitted to such real estate, and might if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties, fees, fee, and sums of money as would have been lawfiiUy due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surrendering such real estate to the use of the will, or of presenting, registering, or 'enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will ; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admittance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. V. And be it further enacted, that when any real estate of the nature lof customary freehold or tenant right, or customary or copyhold, shall be disposed of by will, the lord of the manor or reputed manor of which such real estate is holden, or his steward, or the deputy of such steward, shall cause the will by which such disposition shall be made, or so much thereof as shall contain the disposition of such real estate, to be entered on the court rolls of such manor or reputed manor ; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declaration of such trusts, but it shall be sufiicient to state in the entry on the court rolls that such real estate is subject to the trusts de- clared by such will ; and when any such real estate could not have been disposed of by will if this act had not been made, the same fine, heriot, dues, duties, and services shall be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate, and the lord shall as against the devisee of such estate have the same ren\edy for recovering and enforcing such fine, heriot, dues, duties, and services as he is now entitled to for recovering and enforcing the same from or against the customary heir in case of a descent. VI. And be it further enacted, that if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent as in the case of freehold land in fee simple ; and in case there shall be no special occupant of any estate fur autre vie, whether freehold or customary freehold, tenant right, cus- tomary or copyhold, or of any other tenure, and whether a corporeal or LEADING WILLS ACTS. 69I incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. VII. And be it further enacted, that no will made by any person under the age of twenty-one years shall be valid. VIII. Provided also, and be it further enacted, that no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of this act. IX. And be it further enacted, that no will shall be valid unless it shaJl be in writing and executed in manner hereinafter mentioned ; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signa- ture shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and -such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. X. And be it further enacted, that no appointment made by will, in ex- ercise of any power, shall be valid, unless the same be executed in manner hereinbefore required; and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power -should be executed with some additional or other form of execu- tion or solemnity. XI. Provided always, and be it further enacted, that any soldier being in actual military service, or any mariner, or seaman being at sea, may dispose of his personal estate as he might have done before the making of this act. XII. And be it fiirther enacted, that this act shall not prejudice or affect any of the provisions contained in an act passed in the eleventh year of the reign of his majesty King George the Fourth, and the first year of the reign of his late majesty King William the Fourth, intituled An act to amend and consolidate the laws relating to the pay of the royal navy, respecting the wills of petty ofiScers and seamen in the royal navy, and non-commissioned officers of marines, and marines, so far as relates to their wages, pay, prize money, bounty money, and allowances, or other moneys payable in respect to services in her majesty's navy. XIII. And be it further enacted, that every will executed in manner hereinbefore required shall be valid without any other publication thereof. XIV. And be it further enacted, that if any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. 692 APPENDIX. XV. And be it further enacted, that if any person shall attest the exe- cution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment, mentioned in such will. XVI. And be it further enacted, that in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. XVII. And be it further enacted, that no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof. XVIII. And be it further enacted, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the statute of distributions). XIX. And be it further enacted, that no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. XX. And be it further enacted, that no will or codicil,- or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some per- son in his presence and by his direction, with the intention of revoking the same. XXI. And be it further enacted, that no obliteration, interlineation, or other alteration made in any will, after the execution thereof, shall be valid or have any effect except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be exe- cuted in like manner as hereinbefore is required for the execution of the will ; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription 0/ LEADING WILLS ACTS. 693 the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. XXII. And be it further enacted, that no will or codicil or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner here- inbefore required, and showing an intention to revive the same ; and when any will or codicil which shall be partly revoked, and afterwards wholly -revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. XXIII. And be it further enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. XXIV. And be it further enacted, that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. XXV. And be it further enacted, that, unless a contrary intention shall appear by the will, such real estate or interest therein as shall be com- prised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will. XXVI. And be it further enacted, that a devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a customary, copyhold, or leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the customary, copyhold, and leasehold estates of the testator, or his customary, copy- hold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention shall appear by the will. XXVII. And be it further enacted, that a general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the 694 APPENDIX. case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will ; and in like manner a be- quest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. XXVIII. And be it further enacted, that where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will; XXIX. And be it further enacted, that in any devise or bequest of real or personal estate the words "die without issue," or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unksa a contrary inten- tion shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or other- wise : ProiVided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preced- ing gift to such issue. XXX. And be it further enacted, that where any real estate (other than Or not being a presentation to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, uiUess a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him expressly or by im- plication. XXXI. And be it further enacted, that where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or Such beneficial interest Shall be given to any person for life, but the purposes' of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by wili in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. LEADING WILLS ACTS. 695 XXXII. And be it further enacted, that where any person to wJiom any real estate shall be devised for an estate tail or an estate in quasi entail shall die in the lifetime of the testator leaving issue who would be inherit- able under such entail, and any such issue shall be living at the time of the death of the tesUtor, such devise shaU not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. XXXill. And be it further enacted, that where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testa- tor leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened imme- diately after the death of the testator, unless a contrary intention shall appear by the will. XXXIV. And be it fiirther enacted, that this act shall not extend to any will made before the first day of January, one thousand eight hundred and thirty-eight, and that every will re-executed or republished, or revived by any codicil, shall for the purposes of this act be deemed to have been made at the time at which the same shall be so r?-executed, republished, or revived ; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight. XXXV. And be it further enacted, that this act shall not extend to Scotland. XXXVI. And be it further enacted, that this act may be amended, altered, or repealed by any act or acts to be passed in this present session of parliament. II. Massachusetts Wills Act.* § I . Every person of full age and sound mind may by his last will in writing, signed by him or by some person in his presence a;nd by his express direction, and attested and subscribed in his presence by three or more competent witnesses, dispose of his estate, real and personal, excepting an estate tail, and excepting also as is provided in chapters 123 and 124, \i.e., except as to homesteads and certain rights of a husband in his de- ceased wife's real estate, and of a wife in her deceased husband's real estate] and in § 6 of chapter 147 [which permits a married woman to make a will, but restrains her from depriving her husband of his tenancy by the curtesy, or of more than one-half of her personal estate without his written consent] . § 2. If a witness to a will is competent at the time of his attestation, his subsequent incompetency shall not prevent the probate and allowance 1 See Mass. Public Statutes (1882), c. 127. 696 APPENDIX. of such will, nor shall a mere charge on the lands of the testator for the payment of his debts prevent his creditors from being competent witnesses to his will. § 3. A beneficial devise or legacy made in a will to a person who is a subscribing witness thereto, or to the husband or wife of such a person, shall be void unless there are three other competent subscribing witnesses to such will. § 4. A will made and executed in conformity with the law existing at the time of its execution shall be equally effectual as if made pursuant to the provisions of this chapter. § 5. A will made out of the commonwealth, and which is valid accord- ing to the laws of the state or country where it was made, may be proved and allowed in this commonwealth, and shall thereupon have the same effect that it would have had if executed according to the laws of this commonwealth. § 6. A soldier in actual military service or a mariner at sea may dis- pose of his personal estate by a nuncupative will. § 7. No will, except such as is mentioned in this chapter, shall be effect- ual to pass any estate, real or personal, or to change or in any way affect the same ; and no will shall take effect until it has been duly proved and allowed in the probate court. Such probate shall be conclusive as to the due execution of the will. § 8. No will shall be revoked unless by the burning, tearing, cancelling, or obliterating the same, with the intention of revoking it, by the testator himself or by some person in his presence and by his direction ; or by some other writing signed, attested and subscribed in the same manner that is required in the case of a will ; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. [The word " will " shall include codicils as used above. See Mass. Pub. Stats. (1882) c. 3, § 3, pi. 24.] III. New York Wills Act.' § I. All persons, except idiots, persons of unsound mind, and infants, may devise their real estate, by a last will and testament, duly executed according to the provisions of this title. § 2. Every estate and interest in real property descendible to heirs, may be so devised. § 3. Such devise may be made to every person capable by law of hold- ing real estate ; but no devise to a corporation shall be valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise. 1 Taken from "New York Revised Statutes," Throop's 7th edition, 1882, Vol. III. Pt. 2, c. 6. LEADING WILLS ACTS. 697 t§ 4. Devises to aliens.] [§ 5. Will of real estate denoting intent to devise all one's real prop- erty, shall be construed to pass all he is entitled to devise at the time of his death.] [§§ 6-20 repealed.] § 21. Every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing. § 22. No nuncupative or unwritten will, bequeathing personal estate, shall be valid, unless made by a soldier while in actual military service, or by a mariner while at sea. § 40. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner : 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator, in the presence of each of thfe attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. § 41. The witnesses in any will shall write opposite to their names their respective places of residence ; and every person who shall sign the testator's name to any will by his direction shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who shall sue for the same. Such omis- sion shall not affect the validity of any will ; nor shall any person liable to the penalty aforesaid, be excused or incapacitated on that account, from testifying respecting the execution of such will. < § 42. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed ; or unless such will be burnt, torn, cancelled, obliterated, or destroyed, with the intent and for the pur- pose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent ; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses. [(§ 43-) The excepted cases which follow provide for the revocation of a will, which disposes of the whole estate, by subsequent marriage of the 698 APPENDIX. testator, and the birth of issue, where wife or the issue shall be living at the testator's death, and is unprovided for, unless so mentioned in the will as to show an intention to make no provision. (§ 44.) Will of unmarried woman revoked by her subsequent marriage. (§ 45.) Bond, etc., to convey property, devised or bequeathed, not a revocation. (§ 46.) Charge or incumbrance upon real or personal estate not a revocation. (§§ 47. 48.) Conveyance, settlement, etc., when to be deemed a revoca- tion. (§ 49.) After-born child, if unprovided for, to have portion of estate. (§ 50.) Devisee or legatee may witness will, but devise to him void. (§: 51.) Except that share of estate is saved to such witness in certain cases. (§ 52.) Devises or bequests in certain cases not to lapse. (§ S3-) Cancelling of second will not to revive first, except, etc. ' (§ 69-) Provision as to act going into effect concerning revocation; and (§ 70) prior wills not affected. C§ 71.) " Wills " in this chapter to include " codicUs."] rv. Pennsvlvanu Wills Act.^ § I. Every person of sound mind [married women excepted] may dis- pose by will of his or her real estate, whether such estate be held in fee- simple, or for the life or lives of any other person or persons, and whether in severalty, joint-tenancy, or common, and also of his or her personal estate. § 2. Any married woman may dispose, by her last wUl and testament, of her separate property, real, personal, or mixed, whether the same accrue to her before or during coverture : Provided, That the said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband. § 3. And provided also. That no will shall be effectual, unless the tes- tator were, at the time of making the same, of the age of twenty-one years or upwards, at which age the testator may dispose of real as well as per- sonal or mixed property, if in other respects competent to make a will. [§ 4 authorizes the appointment of testamentary guardian by will.] [§ 5 permits the bequest of emblements and rents by tenant for life.] § 6. Every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction ; and in all cases, shall be proved by the oaths ot 1 Brightly's Purdon's Digest (1700-1883), Vol. IL "Wills." LEADING WILLS ACTS. 699 affirmations of two or more competent witnesses ; otherwise such will shall be of no effect. § 7. Every last will and testament heretofore made or hereafter to be made, excepting such as may have been finally adjudicated prior to the pas- sage of this act, to which the testator's name is subscribed, by his direc- tion and authority, or to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects : Provided, The other requisites, under existing laws, are comi^ied with. § 8. Provided, That personal estate may be bequeathed by a nuncup- ative will, under the following restrictions : I. Such will shall in all cases be made during the last sickness of the tes- tator and in the house of his habitation or dwelling, or where he has resided for the space of ten days or more, next before the making of such will; except where such person shall be surprised by sickness, being from his own house, and shall die before returning thereto. II. Where the sum or value bequeathed shall exceed one hundred dollars, it shall be proved that the testator, at the time of pronouncing the bequest, did bid the persons present, or some of them, to bear witness that such was his will or to that effect ; and in all cases, the foregoing requisites, shall be proved by two or more witnesses, who were present at the making of such will. § 9. Provided, That notwithstanding such act, any mariner being at sea, or any soldier being in actual military service, may dispose of his movables, wages, and personal estate, as he might have done before the making of this act. [§§ lo-i; relate to points of testamentary construction.] § 16. No will in writing concerning any real estat? shall be repealed, nor shall any devise or direction therein be altered, otherwise than by some other wiU or codicil in writing, or other writing declaring the same, exe- cuted and proved in the same manner as is hereinbefore provided, or by burning, cancelling, or obliterating or destroying the same by the testator himself, or by some one in his presence, and by his express direction. § 17. No will in writing concerning any personal estate shall be repealed, nor shall any bequest or direction therein be altered, otherwise than is hereinbefore provided in the case of real estate, except by a nuncupative will, made under the circumstances aforesaid, and also committed to writ- ing in the lifetime of the testator, and after the writing thereof, read to or by him, and allowed by him, and proved to be so done by two or more witnesses. [§§ 18-20 concern the eflfect of subsequent marriage or birth of children as operating to revoke, etc.] [§ 21 restrains the married woman's right of testamentary disposition so far that her surviving husband may elect instead to take under the intestate laws. § 22 forbids the bequest to charity within one month of the donor's decease. §§ 23-26 relate to matters of construction, the exe- cution of testamentary powers, etc.] 700 APPENDIX. V. Virginia Wills Act.^ [§ I construes the word "will" as applying to codicil, testamentary appointment, etc.J § 2. Every person not prohibited by the following section may, by will, dispose of any estate to which he shall be entitled at his death, and which, if not so disposed of, would devolve upon his heirs, personal representa- tive, or next of kin. The power hereby given shall extend to any estate, right, or interest to which the testator may be entitled at his death, not- withstanding he may become so entitled subsequently to the execution of the will. § 3. No person of unsound mind, or under the age of twenty-one years, shall be capable of making a will, except that minors eighteen years of age or upwards may, by will, dispose of personal estate ; nor shall a married woman be capable of making a will, except for the disposition of her sep- arate estate, or in the exercise of a power of appointment. § 4. No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signa- ture ; and moreover, unless it be wholly written by the testator, the signa- ture shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time ; and such wit- nesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. § 5. No appointment made by will, in exercise of any power, shall be valid unless the same be so executed that it would be valid for the dispo- sition of the property to which the power applies, if it belonged to the testator ; and every will so executed, except the will of a married woman, shall be a valid execution of a power of appointment by will, notwith- standing the instrument creating the power expressly require that a vrill made in execution of such power shall be executed with some additional or other form of execution or solemnity. § 6. Notwithstanding the two next preceding sections, a soldier being in actual military service, or a mariner or seaman being at sea, may dis- pose of his personal estate as he might heretofore have done ; and the will of a person domiciled out of this state at the time of his death, shall be valid as to personal property in this state, if it be executed according to the law of the state or country in which he was so domiciled. § 7. Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the estate thereby appointed would not, in default of such appoint- ment, pass to his or her heir, personal representative, or next of kin. § 8. No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, or by a subsequent will or codicil, or by some 1 Code of Virginia (1873), c. I18. FORMS OF WILLS. 70I writing declaring an Intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burn- ing, obliterating, cancelling, or destroying the same, or the signature thereto, with the intent to revoke. § 9. No will or codicil, or any part thereof, which shall be in any manner revoked, shall, after being revoked, be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and then only to the extent to which an intention to revive the same is shown. § 10. No conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked as aforesaid, prevent its operation, with respect to such interest in the estate comprised in the will, as the testator may have power to dispose of by will at the time of his death. [§§ 11-16 establish rules of testamentary construction in certain cases. §§ 17, 18 provide for pretermitted children.] § 19. If a will be attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or be- queathed, if the will may not be otherwise proved, such person shall be deemed a competent witness, but such devise or bequest shall be void, except that, if such witness would be entitled to any share of the estate of the testator, in case the will were not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed. § 20. If a wiU charging any estate with debts be attested by a creditor, or the wife or husband of a creditor whose debt is so charged, such credi- tor shall notwithstanding be admitted a witness for or against the will. § 21. No person shall, on account of his being an executor of a will, be incompetent as a witness for or against the will. [The remaining sections of this chapter relate to the date when a will shall operate and to probate proceedings.] B. FORMS OF WILLS. No. I. A solemn form of will, once common, where a married man of property provided for his family. In the name of God, Amen. I, A B, of, etc., being in good bodily health,! and of sound and disposing mind and memory, calling to mind the frailty and uncertainty of human life, and being desirous of settling my 1 If the testator is in failing health, and of sound and disposing mind," etc.; he should prefer to say something like or, " being in declining health, but of this : "being in sufficiently good health sound and disposing mind, etc." 702 APPENDIX. worldly affairs, and directing how the estates with which it has pleased God to bless me shall be disposed of after my decease, while I have strength and capacity so to do, do make and publish this my last will and testa- ment, hereby revoldng and making null and void all other last wills and testaments by me heretofore made. And, first, I commend my immortal being to Him who gave it, and ray body to the earth, to be buried with little expense or ostentation, by my executors hereinafter named. And as to my worldly estate, and all the property, real, personal, or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath, and dispose thereof in the manner following, to wit : — Imprimis. My will is, that all my just debts and funeral charges shall, by my executors hereinafter named, be paid out of my .estate, as soon after ;my decease as shall by them be found convenient.^ Item. I give, devise, and bequeath to my beloved wife, C B, all my household furniture, and my library in my mansion or dwelling-house, my pair of horses,' coach, and chaise, and their harnesses ; and also fifteen thousand dollars in money, to be paid to her by my executors hereinafter named, within six months after my decease; to have and to hold the same to her, and her executors, administrators, and assigns forever. I also give to her the use, improvement, and income of my dwelling-house, and its appurtenances, situated in , my warehouse, situated in , and my wharf, situated in -^ — , and called Wharf; to have and to hold the same to her for and during her natural life. Item. I give and bequeath to my honored mother, O B, two thousand dollars in money, to be paid to her by my executors hereinafter named, within six months after my decease ; to be for the sole use of herself, her heirs, executors, administrators, and assigns. Item. I give and bequeath to my daughter, D B, my fifty shares of the stock of the president, directors, and company of the Bank, which are of the par value of five thousand dollars, my fifty shares in the stock of the Insurance Company, which are of the par value of five thour sand dollars, and my ten shares of the stock of the Manufacturing Company, which are of the par value of ten -thousand dollars ; to have and to hold the same, together with all the profit and income thereof, to her the said D B, her heiis, executors, administrators, and assigns, to her and their use and benefit forever. Item. I give, devise, and bequeath to my son, E B, the reversion or remainder of my dwelling or mansion house, situated in , and its appurtenances, and all profit, income, and advantage that may result there- from, from and after the decease of my beloved wife, C B ; to have and to hold the same to him the said E B, his heirs and assigns, from and after the decease of my said wife, to, his and their use and behoof forever. 1 This direction is, of course, merely formal, but many testators still prefer its in- sertion as an aid to actual intent. FORMS OF WILLS. 703 Ttem. I give, devise, and bequeatii to ray son, F B, tlie reversion or remainder of my warehouse, situated in , and its appurtenances, and all the profit, income, and advantage that may result therefrom, from and after the decease of my beloved wife, C B ; to have and hold the same to the said F B, his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. Item. I give, devise, and bequeath to my son, G B, the reversion or remainder of my wharf, situated in , called Wharf, and its appur- ■ tenances, and all the profit, income, and advantage that may result there- from, 'from and after the decease of my beloved wife, C B ; to have and to hold the same to the said G B, his heirs and assigns, from and after the decease of my said wife, to his and their use and behoof forever. Item. All the rest and residue of my estate, real, personal, or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I give, devise, and bequeath, to be equally divided to and among my said sons, E B, F B, and G B. Lastly. I do nominate and appoint my said sons, E B, F B, and G B, to be the executors of this my last will and testament [and request that each and all of them may be exempt from giving any surety or sureties upon their official bond^]. In testimony whereof, I, the said A B, have to this my last will and testament, contained on three sheets of paper, and to every sheet thereof, subscribed my name, and to this the last sheet thereof I have here subscribed my name and affixed my seal, this first day of May, in the year of our Lord one thousand eight hundred and thirty-six. A B. [L. s.] Signed, sealed, published, and declared by the said A B as and for his last will and testament, in presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses hereto.* U V. WX. YZ. No. 2. Will in simplest form, giving to one absolutely all the testator's real and personal estate. This is the last will and testament of me [testator's name and residence]. I give, devise, and bequeath all the real and personal estate of every description, to which I shall be entitled at the time of my decease, unto [devisee's name and residence], absolutely [; but as to estates vested in 1 It is matter of prudent discretion in the local requirements of legislation, the testator to omit or insert this claus^*. See supra, §§ 300-356. In some States 2 The attestation clause may vary the residence of witnesses should be somewhat, as well as the number of wit- given, and this is always a safe pre- nesses, according to circumstances and caution. 704 APPENDIX. me upon trust or by way of mortgage, subject to the trusts and equities aflfecting the same respectively^]. And I alppoint the said [name] sole executor of this my last will, hereby revoking all other testamentary writings. Witness my hand and seal this isth day of January, a.d. 1886. Witnesses— A B. [l. s.]^ UV. WX. YZ. No. 3. Will intended for the appointment of executors merely, the property to go as in case of the maker^s intestacy. I, A B, of, etc., do hereby make this my last will and testament. I appoint my son, C D, and my sop-in-law, E F, to be executors of this will, and direct that they shall not be required to give sureties upon their bond as such. I dispose of my property and estate in the same manner as the same would descend and be distributed by law, if this will had not been made, my purpose being only to appoint executors and exempt them from being required to give sureties upon their bond, but not in any way to change the disposition which the law would otherwise make of my estate. In testimony whereof, I, the said A B, hereto set my hand and seal, and publish and declare this to be my last will and testament in presence of the witnesses named below, on this twentieth day of January, in the year of our Lord one thousand eight hundred and seventy. A B. [seal.] Signed, sealed, published, and declared by the above-named A B as and for his last will and testament in presence of us, who, in his presence, and in the presence of each other, and at his request, have hereto subscribed our names as witnesses. U V. W X. YZ. No. 4. A simple form of will, which makes the widow one''s resid- uary legatee. Know all men by these presents, that I, A B, of, etc., do make and declare this to be ray last will and testament, hereby revoking any and all wills by me at any time heretofore made. I give and bequeath to each of my children, CD, E F, G H and I J, the sum of five thousand dollars. 1 give and bequeath to my daughter K L the sum of five dollars. * This clause is not indispensable. ness clause, though very desirable, is 2 Even the seal may be omitted, not an essential. Supra, § 346. Supra, § 309. And the customary wit- FORMS OF WILLS. 7O5 All the residue of my estate real and personal of which I shall die seized and possessed, or to which I shall at my decease in any way be entitled, I give, devise, and bequeath to my beloved wife M N, to have and to hold the same to her, her heirs and assigns forever. I nominate and appoint my said wife M N to be the sole executrix of my estate, and direct that she be exempted from giving sureties on her official bond. In witness whereof I hereunto set my hand and seal, and publish and declare this to be my last will, this fourth day of April, in the year of our Lord one thousand eight hundred and eighty-five. A B. [seal.] Signed, sealed, published, and declared by the said A B as and for his last will and testament, in presence of us who, in his presence, and at his request, and in the presence of each other, have subscribed our names as witnesses. U V. W X. YZ. No. 5. A will which places the residue in trust for the benefit of an un- married niece during life, and to go at her death to her child, etc., if she has any, otherwise to other relatives of the testator. Be it known that I, A B, of, etc., gentleman, feeling how uncertain life is, and wishing to dispose of my property in a manner different from that which applies to the estate of persons intestate, do now make, publish, and declare this to be my last will and testament, viz. : — First: I wish all my just debts and funeral expenses be promptly paid. Secondly: I give and bequeath unto my brother-in-law, C D, of Cincin- nati, two thousand dollars. Thirdly: I give and bequeath unto my faithful servant, E F, five hun- dred dollars as a token of my esteem for him. Fourthly: I give and bequeath unto the Children's Hospital of New York city, a corporation duly incorporated under the laws of the State of New York, the sum of five thousand dollars. Fifthly: I give and bequeath unto G H, of Boston Eye and Ear Infirm- ary, in case she be living at the time of my decease, one hundred dollars, as an acknowledgment of her kind care of my sister during her last sick- ness. Sixthly: I give and bequeath unto my cousin, I J, of, etc., my gold watch, chain, and appurtenances, with my best wishes for the future. Seventhly: All the residue and remainder of my estate, wheresoever and whatsoever it may be, at the time of my decease (including any lapsed legacies) and all rights, claims, and properties, real, personal, or mixed, and whether now held or hereafter obtained by me, I do give, devise, and bequeath unto the said C D, his heirs, executors, administrators, .succes- 7o6 'appendix. sors, and assigns, to have and to hold the same forevet. But nevertheless IN TRUST, and upon the uses and trusts and for the purposes following, namely : To be held, managed, and invested, and from time to time, as need be, reinvested by the said C D, trustee, or his successor in said trust, for the benefit and advantage of my only niece, K L, daughter of the said C D, and in such good and productive stocks or mortgages as will produce, if possible, a sure and regular income, the whole net interest or income of which fund is to be paid over to the said K L during her natural life (and as often as once every six months, if desired) upon her own order or re- ceipt, and without being subject in any degree to the order, intervention, or control of any husband she may have, or of any creditor of her or her husband aforesaid ; my object being to secure to her during her natural life, the use and enjoyment of all the income of said property (which is to be invested productively) beyond the control of her said husband or of any such creditor ; and upon the decease of the said K L, the said principal trust fund and all earnings or accumulations thereon then remaining unclaimed by her in the hands of said trustee or of his successor in said trust, after deducting the expenses incident to the trust, is to be paid over and distributed to the issue of her body then living, if any (the issue, if any, of her children to take the same share that their deceased parent would have taken if so living by right of representation), for their use and benefit forever, share and share alike. But in case the said K L shall die without lawful issue or direct heirs as aforesaid claiming through the said K L, then and in such case the whole of said principal trust fund and the net earnings remaining shall be paid over and belong to the said C D, if then living, or in case of his death, to his lawful heirs, for his or their own proper use and benefit forever. Eighthly : I do hereby fiiUy authorize and empower the trustee above named, or any successor in said trust, to sell and dispose of any property real or personal that I may have at the time of my decease, and to make good and vdid instruments of transfer thereof or any part thereof or any rights therein for the purposes aforesaid (and no purchaser shall be bound to see to the application of the purchase-money or consideration paid therefor) and also to change the investments from time to time and as often as the said trustee for the time being may think proper lor the end and purposes above mentioned. And in case of the death, refusal, or inability of the said C D to act as said trustee, the Judge of Proljate for the county or place where this will may be proved may appoint some other person to act as trustee as aforesaid, and such new trustee, so to be ap- pointed, is to have all and the same powers and to perform the same duties as the trustee above mentioned. My desire being to have the property pru- dently and securely managed rather than hazarded in what may promise great gains. And I hereby revoke all other wills heretofore made by me. And Lastly : I appoint the said C D executor of this will. FORMS OF WILLS. 707 In testimony whereof, I, the said A B, have hereunto set my hand and seal this ninth day of February, eighteen hundred and fifty-two. A B. [L. s.] The foregoing was signed, sealed, published, and declared by said A B to be his last will and testament in our presence, who, at his request and in his presence and in presence of each other, have hereunto set our hands as witnesses thereof, the day and year last above written. U V. W X. Y Z. No. 6. IV^l and codicil of a single 'woman, who gives the bulk of her estate to personal friends and in charity. I, A B, of, etc., single woman, make this my last will and testament, and revoke all former wills. First : I appoint C D of, etc., executor of this wUl, and exempt him from giving any bond with surety. I empower my executor and my administrator with the will annexed to sell arid convey any land, without the aid of any court, by public or private sale, at discretion. Second: I give to each of the persons hereinafter named ten thousand dollars, to wit: E F, G H, I J, K L, M N, and O P, six legacies making sixty thousand dollars. Third: I give to each of the persons hereinafter named five thousand dollars, to wit : Q R and S T, two legacies making ten thousand dollars. Fourth: I give to the Boston Athenaeum five thousand dollars. Fifth: I give all my household furniture, wearing apparel, jewelry, books, pictures and other effects at my lodgings to E F. Sixth : My private letters and papers which are chiefly at my lodgings, — meaning hereby all papers not relating to business, — I direct my executor to bum. Seventh: All the residue and remainder of my property and estate, whatsoever and wheresoever, I give and devise to the three following corporations, in equal shares : namely, the Young Women's Christian Association of Boston, the Trustees of Boston University, and the Boston Provident Association. Witness my hand and seal to this my will, the second day of September, in the year one thousand eight hundred and seventy-three. A B. [seal.] Signed, sealed, published, and declared by the above-named A B as and for her last will and testament, in presence of us, who, in her pres- ence, and at her request, and in presence of each other, have hereto set our hands as witnesses. U V. WX. YZ. 708 APPENDIX. No. 7. Codicil annexed to the foregoing will. I, A B, make this codicil to my last will and testament which was dated Sept. 2, 1873. First : I give to M N, in addition to her former legacy, five thousand dollars. Second: I cancel and revoke the legacy of five thousand dollars given to S T. Third: I give to G H the portrait of my grandmother, painted by Hunt, which is at my lodgings. Fourth : To the Trustees of Boston University I give the portrait of my father by Morse. Fifth : I appoint K L, named in my will, co-executor with C D, and exempt him ft'om giving any bond. In all other respects I confirm my will. Witness my hand and seal this twenty-second day of August, in the year one thousand eight hundred and seventy-six. A B. [seal.] Signed, sealed, published and declared by the above-named A B as and for a codicil to her last will and testament, in presence of us, who, in her presence, and at her request, and in presence of each other, have hereto set our hands as witnesses. U V. W X. Y Z. C. SUGGESTIONS TO PERSONS MAKING THEIR WILLS. 1. Consider at the outset, whether you are disqualified by the law, wholly or partially, fi-om making a will ; or to speak, more particularly, whether you are a minor", a married woman, or an alien.^ 2. Consider whether, by reason of old age or other infirmity, there is any ground for the imputation that your mind is unsound ; and if so, make no will unless you have good reason ; and when making one, fortify care- fully against litigation, both in your scheme of disposition and the proof you leave behind of your mental capacity at the time of the act and that the will was properly executed.^ 3. Similar considerations apply where you are of intemperate habits, or lately delirious in a fever, or reputed to be queer or crazy on some sub- ject.' 4. Consider whether your situation exposes you to the suspicion of being defrauded, coerced, or subject to the undue influence of certain per- sons ; as if, for instance, you should be blind, illiterate, or confined to a sick room and excluded from social intercourse. Here, again, be very 1 Supra, §§ 31-64. " Supra, §§ 165-213. 8 Supra, §§ 121-128, 143-168. SUGGESTIONS FOR MAKING WILLS. 709 careful of the proof that you executed intelligently and of your own free will, and be sure that the instrument is altogether genuine. If your dispo sition is to benefit some one whose access and opportunity of influencing you is much greater than others having equal natural claims upon your bounty, hedge in the testamentary act all the more carefully with strong and ample proof.^ ;. A will entirely in your own handwriting affords the best proof that it is genuine. But take heed, when writing out your own will, that its legal expression is sufficiently clear and exact, else a contest may arise over its meaning. One cannot afford to be too secretive. 6. Laymen often err in supposing they can draw wills with more breadth of apprehension and accuracy than a lawyer, and in expressing themselves as though persons in their own trade were to profit by or inter- pret them. The technical words of the law are better understood than those of any mere business pursuit; and both for clearly comprehending the legal effect of your scheme of disposition and for clearly expressing what you comprehend, you should take professional advice. If you pur- pose an unnatural or complicated disposition of property, involving a con- siderable estate, it would be very unwise to make the will without consult- ing some competent third person and submitting to him your plans or your draft.2 Lawyers themselves have often plunged their own estates into doubtful disputes, by over-confidence in drawing their own wills, without asking for advice and criticism. 7. In these days the safest will is that which deals justly by the natural objects of one's bounty and distributes in a simple manner; attempting little beyond limiting property so as to give the income to some person for life, with capital over on his death,' ii limiting at all. 8. Avoid, if possible, precatory words, and uncertainty in gifts, and be carefiil as to creating conditions, limitations, remainders, etc. Skilful expression and technical knowledge may here prove indispensable.* Joint and mutual wills, contingent wills, and all such peculiar kinds give rise to grave disputes.^ 9. Take care not to transgress local rules against perpetuities and in restraint of accumulation, nor in other respects to make provisions subver- sive of good morals and sound policy.^ 10. Remember that in various aspects, bearing upon the construction of wills and the right of persons to take under such dispositions, each State has its own legislation. 1 Supra, §§ 214-251. avoid. Mr. Justice Story in Brownell ^ Wills drawn up without legal ad- v. De Wolf, 3 Mason, 486. vice, and directing that no lawyer should ' See Forms of Wills, Nos. I, 5. be employed in settling the estate, but * See supra, Part VI. chaps. 2, 4. that every dispute should be settled by ^ Supra, Part V.; also §§ 285-291. « three judicious, honest men," are likely ' Supra, §§ 21, 22, 601-660. to invite the litigation they seek to 7IO APPENDIX. 11. In the description of the property devised or bequeathed, and of the object of the gift (not to add the interest given), be carefiil and accu- rate.* 12. Be explicit and clear of mind as concerns the time when interests immediate or expectant shall vest. It is best to keep in view that your will naturally intends to take effect at your death upon your property as it then exists and the objects of bounty, or their relatives, who may then be living. Prefer that interests shall vest at that period or not much later, and let the expression of your will correspond.^ 13. The rule of taking per capita or per stirpes is also important. Whether in case your devisee or legatee dies before you, or before his in- terest vests, you wish his children or other representatives to take his share, is to be considered. 8 The whole question of lapsing by death is an im- portant one in such gifts. 14. In the last two respects and in general a testator who limits prop- erty should consider to what period ownership shall be referred, and how far and in what sense persons are to participate as survivors. If a gift is made to " children," or to others of a class, it is important to know whether the death of one shall carry his share to the others of that class.* 15. There are some technical words, such as " heirs," " heirs of body," "issue," which should be employed with discrimination, and the more so where real estate is disposed of ^ 16. It is useful, and in some cases indispensable, to have trustees to pre- serve a fund whose capital is not to be at once distributed, but preceded by temporary and successive interests in the property. You had better des- ignate your trust and trustee plainly, just as you would an executor, unless, perhaps, being married, you intend to dispose in favor of your sur- viving spouse and children, and so give the income for life to such spouse, with reversion to the children ; or possibly in some other case, where a parent will be practically a trustee as respects his or her own offspring. 17. A will is hardly worth making if you intend to give nothing outside your immediate femily, and as among these to fix their proportions strictly by the statutes of descent or distribution. But a will may be useful for naming an executor,' or you may wish to make only a partial disposition or to execute a power.' 18. Observe scrupulously the statute requirements when executing your will, as to signature, the presence of witnesses, the method of their attestation, their number, their competency, and the like. If, from any cause, your free and intelligent consent to the instrument is likely to be challenged after your death, be as punctilious and circumspect as the cir- * See Part VI. chap. 2. * See supra, § 297. As to constitut- ^ Supra, §§ 562-566. ing a testamentary guardian, see § 294. » Supra, §§ 538-543. See also Forms of Wills, No. 3. * Supra, §§ 529-537. ' Supra, §§ 298, 299. ' Supra, Part VI. chap. 2. SUGGESTIONS FOR MAKING WILLS. 7II cumstances permit. Talk with the witnesses and others, and impress upon them your capable condition. Your witnesses should be disinter- ested, clear-headed persons, whose testimony will carry favorable weight in support of the will. In some cases it will be prudent to have the instru- ment read aloud in the presence of others before you sign. Never have a legatee for a witness ; and if there is danger of a contest, do not let those whom disappointed relatives will charge with unfairly influencing your dis- position be too prominent when the instrument is signed and witnessed.^ 19. Permit no alteration of any kind, as a rule, in the instrument after it has been executed ; but if a change be needful, re-execute with care, or execute a new instrument. As for altering or revoking your will more generally, consider the modes permitted by law, and pursue those strictly.^ 20. Remember that marriage, or at all events marriage and the birth of a child, revokes a will already made ; * that modern statutes infer a revocation pro tanto, to let in a child born later than the will for whom no provision is made ; * that a child to be disinherited should be named ; and that a surviving wife (and in some States a surviving husband) may elect against the will of a spouse, to take as the local statute permits. ^ 21. As for making a new will or codicil, you should be guided by cir- cumstances. A last will composed of one instrument with several later amendments is inconvenient for various reasons. If your health and situ- ation render it doubtful whether the latest codicil or codicils can be admitted to probate, keep the earlier instrument intact, if you would rather have that take effect than die intestate. But if intestacy is your preference, or if you are undoubtedly competent and free to make your present will, the better course is to destroy utterly whatever instrument or instruments precede, and make a new will which shall embrace the whole disposition and stand as sufficient by itself. The best and simplest revocation, more- over, is to burn and utterly destroy ; for, to keep an old will among your papers, with marks of cancelling not sufficient to obliterate what was written, or alterations in ink or pencil, is to run the risk of having your true intention misunderstood or perverted at the probate.' 22. Keep your will in such custody that it is not likely to be lost, destroyed, or tampered with, but rather to be properly presented at the probate court after your death. In some States provision is made so that one may have his will kept in a sealed envelope at the registry of probate, subject to his own order while he lives, and not to be opened until after his death. The register's receipt is given for such envelope. 1 Supra, §§ 300-356. * Supra, §§ zo, 480, 481. ^ 2 Supra, §§ 380-427. * Supra, § 19. 8 Supra, §§ 424-426. * See passim, §§ 380-427. INDEX. A. AGE, ^"''°" as aflfecting testamentary capacity 130-142 ALIEN, cannot take gift 23 whether capable of making will 34-36 ALIENATION. See Condition 601, 602 ALTERATION, of estate, whether a revocation 427 alteration defined : partial revocation 10, 428 alteration of instrument 10, 429-433 probate with interlineations, etc 434 presumptions and proof 435 disposition altered by codicil 436 how fer codicil revokes 437, 438 effect of revoking will or codicil 439 will and codicil compared 440 AMBIGUITY. See Evidence 581 APOPLEXY. See Insane Persons 118 ATTESTATION. See Execution 318-356 B. BANKRUPTCY, conditions against 606 BEQUEST. See Construction ; Will 3,513 BLIND, wUls of such persons 94-99; 3 17> 343 BURNING. See Revocation. C, CANCELLING. See Revocation. CAPACITY, to take under a will 23-27 See Infants ; Insane Persons ; Married Women. 7'3 714 INDEX. Section CAPACITY — testamentary capacity in general. what persons may make a will 31 measure of capacity defined 32 whether crime disqualifies 33 whether aliens are capaMe 34-36 whether sovereign is capable 37 wills of seamen and soldiers 38 incapacity of infants 39-44 See Infants. incapacity of married women 4S-64 See Married Women. of insane persons 6^ et seq. See Insane Persons. of deaf, dumb, and blind persons 94-99 error, fraud, and undue influence 214 eifect of error in wills 215 correction of errors in probate 216-219 equity jurisdiction to correct mistakes 220 fraud or force vitiates a Will . . . 221, 222 equity and probate jurisdiction 223 general considerations as to fraud and deceit 224 fraud, undue influence, etc., vitiate will 225-231 relate to time of execution 232 will need not originate with testator, etc 233 effect of failure of will 234 maxims applied to parent, child, and spouse 235-237 fraud, etc., must have operated; natural will, etc 238 burden of proof as to fraud, undue influence, etc. . . . 239, 240 points of evidence considered 241-247 probate where fraud operates ' . 248-251 inspection of instrument by jury 251 CAPITA, PER 538-541 CERTAINTY, gift whether certain or uncertain 591 uncertainty in subject or object S92-594 precatory trusts 595 uncertainty in such gifts 596 general conclusion 597 CHATTELS, 508 CHILDREN, unprovided for in will 20 See Construction. described in gift 480, 529-534 in estates tail, etc 555 extrinsic proof of gift 585 INDEX. 715 gift to ... . CLASS,. ^"''°° 529-532 See Construction CODICIL, as affected by insanity ... 76 effect in altering a will '. 7,8,436-440 revocation of codicil, etc 430 comparison with will 440 implied republication 447, 448 requires formal execution 350 use of, to revoke, etc 404-410, 416 See Revocation. in construction 487 COERCION. See Influence. COMMON, interest in devise or bequest 566 CONDITION, wills upon 285-290 precedent or subsequent 598-600 restraints upon alienation, etc 601,602 restraints upon marriage 603 restraints as to residence, assuming name, maintaining good character, etc. . 604 against disputing the will 605 miscellaneous conditions 604, 605, n. against bankruptcy or insolvency 606 limitation and condition distinguished 607 CONSIDERATION, wills revocable by way of gift 45 1 wills upon consideration irrevocable 452 rule of consideration applied to legacy 453 contract for a certain will enforced 454 joint or mutual wills 45S-4S7 distinctions and incidents of such wills 458-460 CONSTRUCTION, general rules laid down. precedents of interpretation ; deeds and wills . . .26, 27, 461 scope of rules of testamentary construction 462-464 aided or unaided by extrinsic evidence 465 cardinal rule that intent shall prevail 466, 467 whole will taken together 468, 473 language according to testator's situation 469 technical and familiar words, etc 470-472 later clause construed with earlier 474 general description limited by particulars 475 predominant idea of will 476 7l6 INDEX. CONSTRUCTION — ir(7«/z««^rf. ' Section language, how far changed or moulded 477 treatment of repugnant parts 47^ favor to heir, next of kin, children, etc 479-482 devise without limitation ; its effect 483-485 when a will takes effect ; after acquired property 486 codicil construed with will 487 some effect given to will 488 whether controlled by condition of estate 488 a presumption of compliance with law, etc 489 presumption against partial intestacy 49° local law of interpretation 49' summary ; Jarman's rules 49^ details of testamentary construction. details relating to property considered 493 as to real estate and leaseholds 494 trust estates, and mortgages 495 reversionary interests 496 lands contracted for 497 "land,"'" tenement," "hereditament" 498 "messuage," "premises" 499 " house," " mill," etc 500 "appurtenances," etc 501 devise of a " farm," " freehold," etc 502 " rents and profits " ; " use and occupation " 503 as to personal property ; " mortgages," " securities " . . . . 504 " money " or " moneys," " cash," etc 505 " movables " ; gift of interest or produce 506, 507 "goods"; "chattels" 508 " effects " ; " possessions " ; " things " 509 "estate"; "property" 510 miscellaneous terms 511,512 description of gift ; devise, bequest, etc 513 general terms restrained by particulars 5 14, 5 1 5 false description does not vitiate . . 516 but particulars may qualify 517 repugnant description S'8 real estate with the personalty thereon 518a residuary bequest ; its effect 519,520 residuaiy devise ; its effect 521,522 gift of residue in general 522-524 execution of power 525,526 errors of description corrected 527 object of gift to be considered 528 gift to children, etc., as a class 529-532 " children," " grandchildren " 533.534 INDEX. 717 CONSTRUCTION^! — continued. Section " issue," " descendants," etc 535 collateral relatives 536 " relations," " famOy," etc 537 taking per capita or per stirpes 538-541 "heirs" or "next of kin" in bequests 542,543,548 " representatives," " executors," etc 544 heir, in real estate, etc 545-548 devise of lands, etc., in fee 549,550 heirs; estates tail; Shelley's Case, etc 55 1-553 rule as to " issue," " children," etc 555 estates tail not favored 556 bequests, absolute or for life 557, 558 gifts to servants, strangers, etc 55^ a devise or bequest, absolute or not 559 life estate and remainder 5^° executory devise 5^ devise or bequest by implication 5^1 gift whether vested or contingent 562 beneficiaries, when ascertained 5^3 " dying without issue," etc 5^4 substitution, survivorship, etc 5^5 interest, whether joint or common 5^6 interest of husband and wife 5^6 extrinsic evidence to aid 567-588 See Evidence. CONTINGENT, wills 285-290 See Condition. CORPORATION, whether capable of taking gift 24 CRIME, disqualification considered 33 D. DEAF AND DUMB, wills of such persons 94-99 DECLARATIONS. See Evidence . .180,193-195,243,244,317^,403 DELIRIUM, delirium of disease, etc. 114,121-123 delirium tremens 124-128 dementia distinguished '29 See Insane Persons. DELUSIONS. See Insane Persons 143-168 DEMENTIA. See Insane Persons 129-142 DESCENDANTS. See Construction 480, 535 DESCRIPTION \^\etseq. See Construction. 71 8 INDEX. Section DESTRUCTION. See Revocation. DEVISE. , See Construction; Will . 3,15,513 executory . . 560 DISPUTE, of will 605 See Condition. DRUNKENNESS. See Insane Persons 124 E. ECCENTRICITY. See Insane Persojjs 144-153 EFFECTS 509 EQUITY. See Construction. jurisdiction to correct mistakes 220 questions of fraud and force 223 ERROR, in wills 214-220 See Capacity. in describing property 527 ESTATE. See Construction sio, S49 e( seg. EVIDENCE, in wills of the insane, etc 95,99,110-120,127 See Insane Persons. , to prove capacity and incapacity 169-213 See Capacity. burden of proof of fraud, undue influence, etc. . . . 239-241 character of evidence in such issues 242-247 extrinsic, not to dispute plain tenor 277 of instruments incorporated as a will 282 in conditional or contingent wills 290, 292 of subscribing witnesses 348 of nuncupative will 377 in case of lost or defaced, etc., will ...... 401-403,412 to show revocation 423 where will is altered 435 extrinsic, to aid in construction 465 presumptions in construction 462, 463 See Construction. exirinsic to aid construction. general rule stated 567 not to control, contradict, etc 568, 569 not to change rules of construction 570 meaning of words ; punctuation, etc 571 extrinsic to resolve a doubt 572 to aid equivocal description 573-575 INDEX. 719 EVIDENCE— confmued. ^°"'°" conclusion as to proof of intent 576 reference to context 577 extrinsic proof not to aid to misconstrue 578 extrinsic proof of facts and circumstances 579, 580 latent and patent ambiguities 581 proof of custom ; deciphering, translating 582 misnomer ; nickname ; identity proved 583 blank in will ; no insertion 584 devise or bequest to children, etc 585 proof of resulting trust, etc • . 586 language not to be varied 587 general summary as to extrinsic evidence 588, 589 Sir James Wigram's propositions 590 EXECUTION, signature and attestation 256, 257 whether instrument is testamentary 267-269 what execution signifies 302 signature by the testator. statute requirement as to signing 300, 301 testator signs or makes mark 303-30S testator signs, or another for him 306, 307 name affixed by subscribing witness 308 seals usually dispensed with 309 misnomer or discrepancy 310 position of signature 311,312 signing must have been intended 313 signature for several sheets 314 where will is written by portions 315 upon paper fastened to the will 316 contents made known to blind or illiterate 317 attestation, etc., by witnesses. attestation or subscription in general 318 under modern statutes 3'9 number of witnesses required 320 signing or acknowledging before witnesses .... 321-325 publication or declaration of will 326 simultaneous presence of witnesses 327 subscription by testator after witnesses 328 request to witnesses to sign 329 attestation and subscription distinguished 330 what is signing or subscription • 331-334 position of signature, etc 33S-337 "signing" and "subscribing" equivalent 338 whether another may sign 339 720 INDEX. Section EXECUTION —continued. subscribing " in presence of," etc 340-343 no certificate of acknowledgment 344 re-execution when necessary 345 use of attestation clause 346, 347 subscribing witnesses relied upon, etc 348 attestation to sanity, etc 349 competency of witnesses . - 3S°-3S8 execution of oral wills compared 359 et seq. See Nuncupative Will. re-execution of will 442, 443 See Republication. EXECUTOR , . so, 297, 544 FAMILY 537 FORCE. See Influence. FORGERY 241 FRAUt). See Influence. GIFT. See Will 3 causa mortis, and wiU distinguished 63, 271 GOODS 508 GUARDIAN, testamentary, whether appointed by will 43, 294, -295 of insane 81, 82 H. HEIR, formerly favored 479-485 in bequests 543 in realty, etc 545-548 words of limitation or purchase SSI-SS4 See Construction. HOLOGRAPH, will 9. 255 HUSBAND. See Marriage. I. ILLEGALITY, in wills 21-24 ILLITERATE PERSONS, wills of 317 INDEX. 721 INFANTS, Section may take under will ^ reason of incapacity to make will . . . 39 earlier and later rules compared . . .' '40-42 modern legislation does not favor 4, appointment of testamentary guardian . . ' aa INFLUENCE, ^ undue, in wills considered . . 89, 221 ^i" sej. fraud, force, or undue influence 221-226 undue influence defined ; how exerted 227-233 effect upon wiU !! 234, 238 maxims applied 236-238 evidence in such cases 2 ■10-247 probate of wills unduly influenced 248-251 in issues of revocation 427 a INSANE PERSONS, may take under will . . \ 25 i^etr incapacity to make a wi^l; in general. will void ; modern tests dfflicult 65, 66 standard of capacity in contracts compared 67 general standard stated 68, 69 incapacity more than weak capacity 70, 71 test referred to the particular instrument 72 will in extremis proper 73 capacity consistent with insane delusions 74. 75 efiect as between wiU and codicils 76 rational and irrational wills 77, 78 manner of executing the will 79 complex and simple estates contrasted 80 will of one under guardianship 81,82 sound and disposing mind and memory, health, etc. . . 83, 84 classification of insanity, etc 85-87 courts apply practical tests 88 tests of mental capacity 88 incapacity of idiots, imbeciles, the deaf, dumb, and blind, etc. what is idiocy ; idiots and imbeciles incapable .... 90-93 persons born deaf, dumb, and blind 94, 95 persons not so born, but disabled 9&-99 general conclusion as to the blind, etc 99 lunacy, and general mental derangement. mental unsoundness in medium degree . . . •. . . .100,101 illusions, perversions, false judgment 102 expert attempts, etc., to classify insanity 103 common symptoms of insanity 104 will of lunatic, etc., invalid 105 722 INDEX. Section INSANE PERSONS — continued. restoration, and intermittent insanity io6 lucid intervals 107-109 proof of will made during lucid interval 1 09-1 15 doubtful derangement, paralysis, prostration, apoplexy, hysteria, etc Ii6-ii8 mental condition nearly contemporaneous with win • • • ■ 119 suicide not conclusive of insanity 120 murder by testator 120 delirium, drunkenness, and dementia. delirium of disease incapacitates 1 21-123 delirium tremens, drunkenness, opium habit, etc 124-128 dementia distinguished from mania, etc 129 senile dementia, or decay of the aged . 130-134 wills of the aged, how regarded 135-142 monomania, and insane delusions. monomania, or partial insanity • . 143 eccentricity and insane delusions distinguished .... 144, 145 delusions, sane or insane, in general 147 whimsical or eccentric behavior 149-152 monomania or insane delusion affects capacity . . . .153-156 English cases considered 157, 158 American cases considered 1 59-161 insane delusion distinguished from prejudice or error . . 162-164 rational or irrational, just or unjust will 165 delusions in religion, etc 166, 167 belief in witchcraft, spiritualism, clairvoyance, etc 168 proof of capacity and incapacity. uncontested cases ; contested cases ; burden of proof . . 169-174 subscribing witnesses ; their testimony 175-180 to test capacity 181,182 statement of sanity in attestation clause 183 proponent opens and closes case 184 issue of testamentary capacity ; matters of proof . . . .186-192 testator's declarations, etc 193 miscellaneous points as to evidence 194-196 character of witnesses who testify 196 opinion of witness as to sanity 197, 198 opinions of non-experts 197, 199-203 expert opinions and testimony 204-213 in issues of revocation . 427 a INTENTION. See Construction. ISSUE 535.554.564 INDEX. ;23 JOINT, ^' Section interest in devise or bequest .... c55 JOINT WILL. See Consideration. K. KIN, next of i:a2 iA-i KINDRED. See Construction .....!.!!!! 480 L. LAND 8 LEASEHOLDS TL 494 LEGACY. See Construction ; Will ... c LIFE ESTATE ! c6o LIMITATION, and condition distinguished 607 LOST WILL '.'.'.'.'. 402 LUCID INTERVAL. See Insane Persons. LUNATIC. See Insane Persons. M. MANIA. See Insane Persons 121-128 MARINERS. See Nuncupative Will. MARRIAGE, rights of surviving spouse I9) 79 mutual wiU of husband and wife 62 marital influence in procuring a will 236, 237 husband and wife as subscribing witness 355 subsequent, etc., revokes will I9) 20, 46, 424-426 husband and wife under a gift 566 restraints upon marriage 603 MARRIED WOMEN, effect of subsequent statute 11 may take under will 25 incapacity to make will at common law 45 marriage a revocation 46 modern changes as to wife's incapacity 47 exceptions ; bequeathing by husband's assent .... 48, 49 wife's disposition as executrix 50 wife's will of separate property SI-S4 modern English statutes of wills 55 wife's will under late American statutes ....... 56, 57 724 INDEX. Section MARRIED WOMEN— coniifiuea. civil law rule ; present tendency to conjugal equality ... 58 devise or bequest to husband 60 his agreement to wife's will 61 mutual wills of husband and wife 62 wife's gift causa mortis 63 wife's execution of testamentary power 64 MISNOMER 583 MISTAKES. See Error. MONEY 505 MONOMANIA. See InSane Persons 75, 76, 143-168 MORTGAGE 495, 504 MURDER, of testator by beneficiary 23 by testator 120 MUTUAL WILLS. See Consideration. MYSTIC, will 9 N. NAME, condition of assuming 604 NEPHEW S36 NICKNAME 583 NUNCUPATIVE WILL, wills which require no formal writing, etc 6, 38, 359 oral or nuncupative will defined 360 history prior to Statute of Frauds . - 361 afiected personal but not real estate 362 restraints under Statute of Frauds 363 now virtually abolished, with few exceptions 364, 365 soldiers, mariners, etc., privileged 366-368 points to be considered ; distinctions 369 whether made in extremis 370, 371 place of making will 372 manner of declaring 373, 374 requisite number of witnesses 375 subsequent reduction to writing 376 strictness of proof of material facts 377 informal writings, whether upheld • . 378 whether written will thus revoked, etc 379 O. OBLITERATION. See Revocation. INDEX. 725 P. Section PARALYSIS. See Insane Persons .... 116-118 PARENT, influence of in procuring a will o,r PERPETUITIES 21 POWER : : : : : 63; 525, 526 PRECATORY, ~ words, efiect of 263,595-597 PRESENCE, ^ ^^' at execution of will 340-343 See Execution. PRESUMPTION. See Construction ; Evidence. PROBATE, fuU or partial in case of error 216-219 undue influence, etc. . . . 223,248-251 several papers making a will 280 of altered will 434,435 of joint or mutual will 456, 457, 459 PROOF. See Evidence, Probate. PROPERTY, real, personal, and mixed 4, 28, 29 See Will. acquired after making the will 30, 486 real, descriptions' construed 494-504 personal, descriptions construed 504-512 See Construction. PUNCTUATION 571 R. RELATIONS 537 REMAINDER 560 REPRESENTATIVE 538-541, 545 REPUBLICATION, of will after coverture 59 definition ; acts express and implied 441 express republication or re-execution 442, 443 implied republication : oral or written 444-447 eiFect of republication 448-450 REPUGNANCY, in wills 478 See Construction. in description 518 REQUEST. See Precatory. REQUISITES. See Wills. 726 INDEX. Section RESIDENCE. See Condition 604 RESIDUE. See Construction ' 521-525 REVOCATION, whether nuncupative will revokes 379 various modes of revocation 10, 380, 381 oral or implied not recognized 382 by burning, tearing, cancelling, etc 383, 384 intention to revoke must accompany 384 as to will destroyed unintentionally 385 where intention fails of action 386 burning, etc., by testator himself, etc 387 no witnesses to act necessary 388 burning, tearing, cancelling, etc 389-394 incomplete burning, cancelling,' etc 395, 396 revocation of part only, etc 397, 398 of duplicate wills ; of will, but not codicil 399, 400 presumptions ; will lost or defaced 401, 402 testator's declarations 403 by subsequent will or codicil 404-410 two wills of same date 411 where revoking will cannot be found 412 revival of earlier will 413-415 reference of codicil to one of two wills 416 express revocation by later will, etc 417,418 by other writing 419-422 parol evidence of intention 423 instrument intended to confirm 423 a inference of law ; subsequent marriage, etc. . . . 46, 424-426 implied by alteration of estate 427 See Alteration. by codicil, etc 437-439 S. SAILORS. See Nuncupative Will. SEAL. See Execution 309 SEAMEN. See Nuncupative Will 38 SECURITIES 504 SENILE DEIVIENTIA. See Dementia 129-142 SIGNATURE. See Execution 256, 300 et seq. SOLDIERS. See Nuncupative Will 38 SPIRITUALISM. See Insane Persons 168 STATUTE, ■ effect of subsequent upon will 11 leading wills acts 14-16 INDEX. 727 STATUTE — continued. ^«"™ as to execution, writing, etc 252-21:7 as to signing ... ° ° 300, 7.01 as to attestation ... SiQj 320 as to gifts to attesting witnesses ,57 as to nuncupative wills ■ • • ' as to revocation of wills '.'.'.'.'. 380-381,422 m rules of construction .g See Construction. STIRPES, PER 8 STUPOR. See Dementia ,T„ SUBSCRIPTION. See Execution. SUBSTITUTION g SUCCESSION ...".! ^2,13, 17 SUICIDE. See Insane Persons j2o SUPERSTITIOUS USES '21 SURVIVORSHIP ; ; S29IS32.S6S T. TAIL, ESTATES SSZSifi TESTAMENT. See Will . 2 et seg. TRUST. See Trustee. 4^5 resulting, proof of egg precatory, uncertain, etc cnc when invalid or liable to be set aside 610 TRUSTEE, testamentary, rights and duties 495, 608, 609 U. UNCERTAINTY. See Certainty. W. WIDOW. See Marriage. WILL, its nature and origin. definition i last will and testament ; testament and testator 2 gift ; devise ; bequest ■y property given : real, personal, and mixed 4 legacy defined r written and unwritten or nuncupative 6 codicils or postscripts to wills _ 7 728 INDEX. Section WILL — continued. will includes codicil 8 testaments in the civil law ; special kinds : mystic, holograph, etc g when will comes into force ; ambulatory character .... lo eflfect of subsequent statute 1 1 origin of will ; succession, etc 12, 13 origin in England ; devise's, etc I4> '5 origin in the United States 16 prevalent rule of succession 17 will of State and will of individual 17)18 will of State when paramount 18 case of husband and wife 19 of children unprovided for 20 perpetuities, superstitious uses, etc 2i gifts illegal, immoral, etc 22 personal incapacity to take under will 23 incapacity of corporations to take ......'.... 24 infants, insane, married women, etc., may take 25 maxims of testamentary construction 26 general conclusion as to policy of succession 27 what may be given by will 28, 29, 486 scope of investigation to be pursued 30 capacity and incapacity to make a will 31 <^ seq. See Capacity. •what constitutes a will. wills written or unwritten ; most wills written 252 real and personal property now treated alike 253 statute rules on this subject 254-256 holograph wills, how far recognized 255 statute rules as to form, signature, and attestation .... 256 will not properly executed and attested is inoperative . . . 257 requirement of writing ; materials 258 language ; legible writing 259, 260 no date necessary ; nor formal words 261, 262 will imperative, though softer words used 263 general form of wills 264-266 form where statute requires an attestation v 267-269 instrument composed of deed or contract and will .... 270 will distinguished from gift causa mortis 271 test between will and other instrument 272, 273 posthumous and ambulatory character 274 operates, notwithstanding mistake in law 275 writings otherwise intended 276 plain tenor of instrument ; effect of doubt 277 INDEX. 729 Section WILL — continued. made in jest; animus testandi .278,279 several papers making a will ; instruments incorporated . 280-282 reference of will- to other writings 283 will on several sheets . . . . " 284 wills conditional or contingent 285-290, 292 wills in the alternative 291 will to operate at another's discretion 293 papers not probated as wills ; appointing guardian ; appoint- ing to a situation ; excluding from inheritance, etc. . 294-296 will simply nominating executor ; wills without executor . . 297 wills disposing, as in intestacy 298 wills under a power 299 signature by testator and witnesses 300 et seq. See Execution. nuncupative or oral wills 3S9-379 See Nuncupative Will. how revoked 380-409 See Revocation. how altered 428-440 See Alteration. republication of 44i-4S° See Republication. upon valuable consideration, irrevocable, etc 451-460 See Consideration. construction or interpretation 461 et seq. See Construction. miscellaneous provisions 59^^^ ^^9- See Certainty ; Condition. trustees, their rights and duties 608, 609 WITNESS. See Evidence. subscribing, as to the testator's sanity 177-181, 198 opinions of other witnesses 197-209 subscription by 318-356 See Execution. competency of subscribing 35°-3S8 gift to, annulled by statute 23, 357 in nuncupative will 375 of act of revocation 3^8 WORDS, technical, etc., in a will 470-472 See Construction. describing real estate construed 494-S04> 5r°-5i2 personal estate construed S°4-Si2 object of gift 533-548 730 INDEX. Section WORDS — continued. denoting estate or interest 549-566 meaning interpreted by will 571 See Evidence. "■ precatory, effect 263, 595-597 WRITING. See Wills 2^2 ei seq. ADDENDA. New cases noted while this volume in its second edition was passing thfough the press : — § 21, p. 19, note I. The rule against perpetuities has no application to a transfer directed in a certain event from one charity to another. Tyler Re, 1891, 3 Ch. 252. § 22, p. 21, note 4. Seepost, § 603. § 139, p. 137, note 4. See White v. Starr, 47 N.J. Eq. 244. § 239, p. 254, note 7. See Seebrock v. Fedawa, 30 Neb. 424. § 269, p. 289, note 8. See Slinn's Goods, 15 P.D. 156. § 424, p. 452, note 3. See Stewart v. Powell (Ky.) 1891 ; 87 Cal. 643. § 465, p. 499, note I. Also § 470, p. 503, note 5. A will was construed as to its whole meaning, and with reference to the use of certain words not terms of art. " I repudiate entirely," said Halsbury, L.C., "the notion of laying down any canon of construction which is to extend beyond the particular instrument that I am called to give an interpretation to." Seale- Hayne v. Jodrell, 44 Ch. D. 590. Decision of C. A. affirmed by H. L. (E.) 1891.. App. C. 304. 731 KP 755 S37 1892 Author Vol. Schouler, James Title Copy A Treatise on the law of Ftlts Date Borrower's Name