QJorn^ll ICatu ^rljnnl Sjtbraty Cornell University Library KFP 144.W72 Law of wtis In Pennsylvania / 3 1924 024 705 737 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024705737 THE LAW OF WILLS IN PENNSYLVANIA BY . RICHARD J.'^WILLIAMS OF THE PHILADELPHIA BAR. PHILADELPHIA T..& J. W. JOHNSON & CO. 1903 Copyright, 1903- BY T. & J. W. Johnson & Co. PREFACE. No ELEMENTARY work has been published relating exclusive- ly to the laws as to wills in the State of Pennsylvania. One rea- son for this seems to be the vast number and infinite variety of cases in the reports, which make difficult their complete classi- fication. Many of the cases are collected promiscuously in a number of bulky, expensive digests ; and a search through them is often troublesome and confusing. While the cases are num- erous, well-settled general principles are few ; and many of the cases involve merely questions of the application of such prin- ciples to a particular will. The intention of the author is to give these important principles, illustrated by cases, in a condensed, practical work for ready use and reference. It is often difficult to discover a testator's real purposes. Hence many rules have been made by the courts to discover such intentions. A number of them will be found in this work that may be helpful to counsel in giving opinions as to wills and in case of litigation. The large number of rules for con- struction, and the larger number of cases in the courts involv- ing questions as to the intention of testators, indicate that a great many wills are now ignorantly or carelessly prepared. In wills it often occurs that technical language has to be used, which a layman cannot understand. The use of such language may prevent the intention of a testator being carried out. Much litigation has arisen from this source. It is a part of the busi- ness of counsel to write and to advise as to the preparation of wills, and it will be well to confide such business to counsel PREFACE whenever it can be done. If this course is pursued, it is prob- able that the intention of the testator will be fully ascertained and clearly expressed, with no room for litigation in any way. To aid counsel in the preparation of wills, forms have been prepared. As the author could not find suitable prece- dents in some cases, he has taken the liberty of preparing some forms of his own, which are submitted to counsel for approval. R. J. W. Philadelphia, June, 1903. TABLE OF CONTENTS. CHAPTER I. WHAT ARE WILLS. Page i. SECTION I, 2. 3- S- Definition of a will. May be in any form. Wlien documents in the form of deeds are wills. When deeds with reserved ben- efits are not wills. Assignment of life insurance held to be a will. 6. May be in the form of a letter. 7. A paper expressing a gift held to be a will. 8. Wills by endorsements. 9. An invalid nuncupative will held to be a written will. 10 When extrinsic evidence will be received that a paper was ex- ecuted with testamentary in- tent. SECTION 11. Papers referred to in will. 12. Wills to take effect upon a contingency before death. 13. Double wills. 14. Contracts to leave property to another by will. 15. Separate wills. 16. Common law definition of nun- cupative wills. 17. Provisions of Act of Assembly for nuncupative wills. 18. Act must be fully and strictly complied with. 19. Must be made in extremity. 20. Persons present must be asked to bear witness, etc. 20*. Two wills executed on same day. CHAPTER II. CODICILS. Page ii. 3ECTI0N 21. Definition of a codicil. 22. Physical annexation not neces- sary. SECTION 23. Will and codicil one instru- ment. 24. Republication of a will by codi- cil. VI TABLE OF CONTENTS. 25. Probate of codicils. 26. Effect of codicil on a prior codicil. 27. When disposition by will and codicil inconsistent. 28. A residuary gift by codicil re- vokes a gift of residue by will. 29. Destruction of a codicil. SECTION 30. Effect of unsigned codicil on will. 31. Reference in a codicil to a will a reference to prior codicil. 31*. Codicil in substitution of lapsed contingent legacy. 31**. When revocation of will does not revoke codicil. CHAPTER III. WHO MAY MAKE A WILL. Page 15. SECTION 32. By the Acts of 1833 and 1893. 33. Wills of deaf, dumb or blind persons. 34. The legal definition of a "sound mind." 35. Loss of memory. 36. Wills of old or sick persons. SECTION 37. A sound mind with hallucina- tions. 38. Disability from insaijity. 39. Partial insanity. 40. Wills made during (lelirium. 41. Wills made by drunkards. 42. Wills made during lucid inter- vals. CHAPTER IV. UNDUE INFLUENCE. Page 23. SECTION 43. Definition of undue influences. 44. Mere persuasion not undue in- fluence. 45. Influence from family and so- cial relations. 46. No presumption from resi- dence. 47. Unequal division among chil- dren. 48. Influence by unlawful relations. 49. Contents of will showing un- dae influence. 50. Those having confidential re- SECTION lations may have to show testator's capacity. 51. Who may stand in confidential relation. 52. Whole will not necessarily void by undue influence. 53. Presumption of the absence of undue influence. 54. Requisite proof of undue in- fluence. SS- The undue influence must ex- ist at the time of making will. S6. Wills obtained by fraud. TABLE OF CONTENTS. CHAPTER V. vu EXECUTION OF WILLS. Page 29. SECTION 57. Requirements by Act of As- sembly. 58. When a will is made by writ- ing. 59. Typewritten will allowed by Act of Assembly. 60. No special acknowledgment of testator necessary. 61. Reading the will to testator. 62. How the testator's name to be signed. 63. The signing of a will at the end thereof. 64. May be signed by a mark. 65. Act of 1848 has no retroactive force. 66. A cross before Act and death after. 67. A mark must be made with in- tention to execute will. 69. 70. 71 68. May be affixed though testator able to write. Evidence necessary to prove mark. Signing by another by express direction. When testator cannot sign from extremity and directs another to sign. 72. Presumption of continuing in- ability to sign name. ^Z■ Not necessary to have sub- scribing witness to signature. Testimony of subscribing wit- nesses. Disability after giving instruc- tions for a will. 76. Propriety of having witnesses who can be procured to prove. 74. 75. CHAPTER VI. PROOF OF WILLS. Page 38. SECTIOW "jj. Caveat to prevent proof of will. 78. The office of the caveat. 79. Caveator to give security for costs. 80. Compelling the production of will for proof. 81. The register will perform his duty by merely issuing ci- tation. SECTION 82. Register of wills may issue commissions to examine witnesses. 83. When subscribing witnesses are dead or out of the reach of process. 84. Each witness must testify to all essentials of execution. 85. When witness has forgotten the signing. VIU TABLE OF CONTENTS. SECTION 86. Circumstances may supply the want of one witness. 87. A legatee may be a witness to a will. 88. Proof of foreign will in case of personal estate. 89. Proof of foreign wills in case of real estate in Pennsyl- vania. 90. Proof of a will for property out of the State. 91. Probate or refusal to probate will conclusive as to realty after three years. 92. Wills proved in another State or country. 93. Proof of lost wills. 94. Nuncupative will -cannot be proved after six months un- less put in writing within six days. 94*. Probate of nuncupative wills not allowed until fourteen days after death. 95. Election not to contest by taking under the will. 96. An executor is not bound to defend his testator's will. 97. Presumption of competency. 98. Proof of undue influence. 99. Alleged fraud or undue in- fluence may be confined to a part of a will. 100. Right to an issue for a jury trial. loi. Parties to issue. 102. Refusing an issue by register. 103. Rule governing an award of issue d. V. n. 104. On trial the question as to capacity is for the jury. 105. How costs for the trial of an issue to be paid. 106. Appeal from the decision of the register of wills to com- mon pleas. 107. Security for costs in appeal to orphans' court. 108. All persons interested should be cited. 109. Parties in interest are only those who would be affect- ed. 110. Requisite for an appeal from the register for undue in fluence. 111. On appeal will and codicils are considered as one in- strument. 112. Proceedings on appeal from the register de novo. CHAPTER VII. REVOCATION AND REPUBLICATION OF WILLS. Page 51. 113. Revocation of wills of real estate by the Act of 1833. 114. Revocation of wills of per- sonal estate by Act of 1833. 115. Not necessary that oblitera- tion or physical destruction be complete. 116. There may be a partial revo- cation by lead pencil or cutting. 117. Interlineation not an oblit- eration. 118. Unsigned writing on margin not a revocation. TABLE OF CONTENTS. IX up. Destruction of will by an- other must be by express airection. 120. Presumption of destruction. 121. Evidence of an intent to can- cel. 122. Revocation may depend upon a contingency. 123. Effect of revoking a residu- ary devise. 124. The best way to revoke a will. 125. Revocation of will by subse- quent marriage and birth of issue. 126. Extent of revocation by mar- riage and birth of child. 127. Prevention of revocation in case of a tirth of a child. 128. Revocation of single woman's will by marriage. 129. Act not to apply to bequests of personalty by non-resi- dents. 130. Definition of republication. 131. In Pennsylvania may be by parol. 132. When will republished speaks of the date of republica- tion. CHAPTER VIII. GIFTS. Page 57. SECTION 133. Gifts mortis causa. 134. The subject of the gift. 135. The gift must not be of the whole estate. 136. Delivery. 137. Delivery may be made to one for another. 138. Delivery must be during a last sickness. 139. The extremity of sickness is not requisite. 140. Must be made in view of ap- proaching death. 141. Revocable by donor. 142. The gift takes effect pres- ently. 143. Proof necessary to prove a donatio causa mortis. 144. When assets not sufficient to pay debts. 145. When there is an intent to defeat the widow's right. 146. Gifts inter vivos. 147. Delivery of a gift inter vivos. 148. Delivery not requisite when impossible. 149. There may be a gift with a reservation. 150. No presumption of unfairness by a gift inter vivos. 151. Evidence relating to a gift. 152. Gifts by means of a declara- tion of trust. X TABLE OF CONTENTS. CHAPTER IX. PRELIMINARY PARTS OF WILLS. Page 64. 155- IS6. 157- 157* commencement of SECTION 153. Formal wills. 154. Provisions as to funeral ex- penses. Provisions as to burial lots. Provisions for burial lots a charitable use. A right to cemetery lot may be an interest in real estate. Right to a burial lot an in- corporeal hereditament. SECTION 158. Provisions for monuments and tombstones. 159. Provisions for masses. 160. Directions as to the payment of debts of testator. 161. Exoneration of personal es- tate from the payment of debts. 162. Lien of debts by a charge to pay them. 162*. Liability to pay mortgage debts of testator. CHAPTER X. LEGACIES. Page 70. Specific legacies. Money may be the subject of specific bequest. Bequest of money due by legatee specific. 166. Definition of articles of per- sonal use. When there is a specific leg- acy of stock. A bequest of the amount of the bonds of a company not specific. When bequests of proceeds of real estate specific. 170. Gift of money not specific when not set apart. Specific bequest of money in bank. 163. 164. i6s. 167. 168. 169. 171. SECTION 172. A legatee of a specific be- quest entitled to possession upon the death of testator. 173. Specific legacies annulled by a sale by testator of the ar- ticle bequeathed. 174. Interest on specific legacies. 175. Pecuniary legacies. 176. Legacy to a creditor. 177. Legacy to a debtor. 178. Abatement of legacies. 179. A legacy to a widow pre- ferred to other legacies. 180. Demonstrative legacy. 181. Distinction between a dem- onstrative and specific leg- acy as to ademption. 182. Liability of demonstrative legacy to abate. TABLE OF CONTENTS. XI 183. 184. i8s. 186. 187. 188. 189. 190. 191. 192. 193- 194. I9S- 197. 198. 199. 200. 202. 202* When legacies with expres- sion as to use and applica- tion absolute. Where a legacy is vested or contingent. In case of doubt, the law favors vesting. Legacies to children to be paid when of age vested. When gifts to grandchildren after a life estate vested. Protection of contingent in- terests. The assignment of a contin- gent interest. Legacies with conditions. Bequests over in case of death in lifetime of testa- tor. Bequest of personal property to widow for life without limitation over. Legacies charged on land. Charging residuary real es- tate depending on intent. Payments to be made by de- visees as a condition in- dicative of a charge. The personal estate is the priinary fund for the pay- ment of legacies. The orphans' court can com- pel payment of charges. Devisees may pay legacies charged into court. Property may be set apart for payment of legacies charged. Legacy by will and codicil to same legatee indepen- dent. The time of payment of leg- acies. Interest on legacies. , Interest on annual payments. SECTION 203. Interest on specific sum be- queathed in trust. 204. Apportionment of periodical payments. 205. Apportionment of annual sums. 206. Wills for charitable and re- ligious uses to be made one month before death. 207. Definition of charities. 208. Effect of failure of charit- able bequests. 209. Religious and charitable gifts preserved from failure of objects and other events. 210. Legatees of contingent inter- ests may have account and security. 211. Advancements. 211*. Conversion of debts into ad- vancements. 212. Liability to advancements when legatees taking by representation. 213. Annuities. 214. Prevention of devises and legacies to children and is- sue from lapsing. 215. Prevention of devises and legacies to brothers and sisters from lapsing. 216. Lapsed devises to be included in residue. 217. Where a lapsed legacy falls into the residue. 218. Legatee for life or limited period to give security to protect those in remainder. 219. Attachment of legacies. 219*- When "issue" word of pur- chase in case of personalty. 220. A legacy to a class without individuating members. 220*. Effect of absolute gift pay- able at discretion of trustee. xu TABLE OF CONTENTS. SECTION 221. Absolute gift followed by qualifying trust. 221*. Accumulation of income to carry out trust. 222. When the word money may include bonds. 222*. When a legacy to a child abates pro rata with other legacies. 223. When gift of the income of fund takes effect from death of testator. 223* No right of residuary legatee to income before vesting. 224. Residuary legatee can only take what remains after debts and general legacies are paid. 224*. Interest on legacy after death of prior taker com- mences at that time. 225. A lapsed share of the resi- due goes to the next of kin. 225*. Bequest of maintenance of ■ son. 226. Bequest for a particular pur- pose. 226.* Coupons immature at death SECTION of testator pass with bequest of bond. 227. Legacy given on a condition subsequent vests immediately 227*. Vested interests after succes- sive life estates. 228. Gift over in default of the ex- ercise of a power of ap- pointment. 228. Gift for life with power of consumption. 229. Disinheriting heirs. 230. Legacies to adopted children will lapse. 231. Specific legacies not liable to abate to pay costs of admin- istration and funeral ex- penses. 232. Lapse of a legacy contained in a residuary clause. 233. When legacy payable at dis- cretion of executor payable at his death. 234. Legatee's bond required as re- mainderman. 235. Distribution to legatee dying intestate in another State. 236. When estate vested in chil- dren who shall be then liv- ing. CHAPTER XL DEVISES. Page 100. SECTION 237. Definition of Devise. 238. What estates are devisable. 238.* Limitation for creation of trusts for religious or charitable uses. SECTION 239. Time of taking effect as to real estate. 240. After acquired property to pass by a general devise. 241. Estates for life. TABLE OF CONTENTS. xm 242. Where devise for life; re- mainder to children, when no fee. 243. A devise for life remainder to children. 244. The words "descend to their children'' after life estate to tes- tator's children do not give them a fee. 245. Dower. 246. Widows' rights under intes- tate law in lieu of dower. 247. Merger of charge for dower in the fee. 248. A devise or bequest by hus- band to wife in lieu of dower — if she accepts. 249. Curtesy. 250. In Pennsylvania the birth of issue not necessary. 250*. In Pennsylvania a right to seisin merely is sufScient. 251. No curtesy in wife's remain- der. 252. No curtesy in wife's reversion if prior estate continues. 253. Distinction between estates terminated by condition or limi- tation as to curtesy. 254. Curtesy in case of wife's fee subject to trust for separate use. 255. Curtesy in case husband is insolvent. 256. Loss of husband's rights to a deceased wife's estate by de- sertion. 257. Joint tenancy. 258. Act of 1812 abolishing joint tenancy. 259. Survivorship may be created by will notwithstanding act. 260. Tenancy by entireties. 261. May exist as to personal es- tate. 262. Cannot be encumbered with- out mutual consent. SECTION 263. Not destroyed by Act of 1812 and married women's Acts. 264. Rights to mortgage by ten- ants by entireties. 265. Tenancy in common. 266. Estates in fee simple. 267. Devise will pass the whole es- tate if none given over under act 1833. 268. Construction of the act of 1833- 269. An estate in fee by giving to heirs of devisee. 270. Fee in case a devisee for life dies without leaving family. 271. A restraint against alienation void in case of a fee. 272. The word heirs not necessary to pass fee by will. 273. Devise over after a fee in- tended to prevent a lapse. 274. A devise in fee restrained by subsequent expression. 275. A condition against devisee's debts void in case of a devise in fee. 276. Devise to heirs when persons stand in that relation. 277. Devise "to my legal heir" for life and remainder to his heirs. 278. Devise in fee in case of con- dition to pay taxes. 279. Devise to son for life and re- mainder to children and default of children to his heirs, a fee. 280. Devise in fee with direction to convey to another. 281. Defeasible fee in case of a devise to wife as long as she shall remain a widow. 282. A devise to wife of a fee simple notwithstanding devise of part undisposed of by wife. 283. Fee simple estate by use of technical language. 284. The rule in Shelly's case. XIV TABLE OF CONTENTS. SECTION 285. Overthrows life estate con- trary to intention. 286. The remainder must be to the whole line of heirs. 287. When limitation - to heirs mediate. 288. The word heirs not neces- sary. 289- Estates must be of the same quality. 290. A direction to sell and divide among heirs does not prevent operation. 291. The words "descend to their children" mean heirs of chil- dren. 292. A limitation to descendants indicates a root of new succes- sion. 293. A devise to one for life and her heirs but over and to be sold if she leaves no heirs a fee. 294. Qualified or base fees. 295. Examples of base fees. 296. Upon determination of base fee property reverts. 297. The origin and nature of es- tates tail. 298. A devise to one for life and after his death to his "children or legal heirs" a fee tail. 299. Barred by deed. 300- Conversion into fee simple by act of 1855. 301. Contingent interests after an estate tail cut off by deed. 302. Estates descend according to common law. 303. Definition of the word issue. 304. Devise in fee with a devise over in case of dying without issue. 305. Construction of words "dying without issue, &c.," by act of 1897. SECTION 306. Application of the act of 1897. 307. The great importance of the act of 1897 as to future wills. 308. Dying without issue during lifetime of widow. 309. Where the word heirs used as children. 310. A limitation over to persons in being a definite failure of is- sue. 311. As to the words "dying without leaving issue" intention must govern. 312. The words "and if none" mean an indefinite failure of is- sue. 313. Children meant in case of a devise over in case of death without issue or issues of chil- dren. 314. A devise to issue of a de- ceased child may mean to chil- dren. 315. When the words dying with- out heirs mean dying without issue. 316. Remainders. 317. Remainders vested or contin- gent. 318. The owner of vested interest treated as in possession. 319. A contingent remainder must await the natural determination of particular estate. 320. Devise to unborn children contingent. 321. Avoiding intestacy in case contingent interest should not take effect. 322. Estate contingent when per- sons must be living at a certain time. 323. Times in which a contingency may happen. TABLE OF CONTENTS. XV SECTION 324. Vested remainders to be in after-born children. 325. Gift to brothers and sisters after death of husband — if dead to their children vested. 326. Executory devises. zzy. Distinction between executory devise and a contingent re- mainder. 328. Estates on conditions. SECTION 329. Kinds of conditions. 330. Provisions in restraint of marriage valid in case of a limi- tation over. 331. The rule against perpetuities. 332. How modified by statutes. 333. No restraint upon alienation when interest of devisee vested. 334. Lapsing of devises. CHAPTER XII. TRUSTS. Page 137. SECTION 335. Trusts for the separate use of a married woman. 336. Can only be for a woman married or in contemplation of marriage. 337. Upheld without active duties imposed. 338. The income of a separate use trust not liable for the debts, contracts, engagements or as- signments of wife. 339. A fee simple estate with trust for separate use. 340. Husband's curtesy in fee of wife in case of separate use trust. 341. Death or divorce of husband in case of full ownership with separate use trust. 342. Woman cannot sell or mort- gage property held for her sep- arate use. 343. Woman cannot devise in case of a separate use trust. 344. Protection of married wo- man's interest during lifetime. section 345. Separate use trust for un- married woman upheld as a spendthrift trust. 346. Definition of a spendthrift trust. 347- There can be a spendthrift trust for a female. 348. Not necessary that a spend- thrift trust should contain specific words. 349. A legacy before payment by executor can be protected by a spendthrift trust. 350. Trustee paying principal to cestui que trust of spendthrift trust. 351. Trust to support remainders. 352. Trust to pay debts. 353. Active trusts. 354. Trust to divide an estate. 355. Dry trusts. 356. Trusts for estates of minor children. 357. Trusts for business. 358. Personal liability of trustees for debts of trust business. XVI TABLE OF CONTENTS. 359. Trustee to carry On business cannot make an assignment. 360. Cannot confess a judgment. 361. Trustee authorized to invest in real estate may give purchase money mortgage. 362. Power of surviving trustee to sell. 363. Termination of a trust by agreement of parties. 364. Waiver of trusts. 365. If mere direction to convey title will vest without convey- ance. 366. Provisions for the appoint- ment of trustees. 367. Trustee can only invest in legal investments. CHAPTER XIII. POWERS. Page 149. SECTION 368. Powers to sell real estate. 369. Distinctions between discre- tionary and peremptory powers of sale. 370. When a mere naked authority to sell the land descends to heirs. 371. No conversion if devisees may sell by agreement and di- vide proceeds. 372. No conversion by a direction to sell real estate with the con- sent of brothers and sisters. 373. When discretionary power to sell real estate does not prevent partition. 374. Conversion by sale may be express or implied. 375- When sale directed upon a contingency no conversion. 376. In case of conversion a dis- tributee may assign share of money. 377. Power of sale without limit void under rule against perpetui- ties. 378. When estate vested power SECTION may be exercised in a . reason- able time. 379. All parties interested may recognize continuance of power. 380. A power without limit limited to lifetime of widow. 381. A discretion to sell may exist during lifetime of trustee. 382. When purpose of a power of sale accomplished ceases. 383. Power of sale does not end if one of different purposes fail. 384. Power to sell to pay debts void if no debts. 385. A power to sell to pay debts ceases upon payment. 386. Power of trustee appointed by court at testator's domicile to sell. 387. When powers of sale can be exercised by an administrator, c. t. a. 388. Removal of limitation of power to sell by consent of ten- ant for life. 389. Averting a sale under a power by election. TABLE OF CONTENTS. XVU 390. A power to sell a power to mortgage. 391. Liability of purchasers under powers for the application of purchase money. 392. Purchaser not liable to see purchase money applied to pay general debts under absolute di- rection to sell. 393. When power to sell real es- tate not given to any person executor may sell. 394. A discretionary power to sell should be exercised in the time limited for sale. 395. Sale when time not arrived to exercise power of sale. 396. Failure to exercise power of sale at time fixed. 397. Orphans' Court will control the exercise of a discretionary power of sale. 398. A power of sale may be imr plied from purpose of will. 399. When power of sale implied court cannot order executor to sell. 400. A sale of real estate by chil- dren in place of executor by power. 401. When a power of sale should locate the property to be sold. 402. Dispensing with a will and power of sale by family settle- ment and election. 403. The exercise of powers of appointment by wills. 404. Case where an appointment void for want of a seal. 405. What is a seal in exercising power of appointment. 406. When a general devise an ex- ercise of a power of appoint- ment. 407. Powers of appointment as to real estate in Pennsylvania gov- erned by the laws of the State. CHAPTER XIV. CHARGES. Page 164. SECTION 408. The intention to charge must be on the face of the will. 409. Words used in creating charges. 410. A mere direction to pay a legacy not a charge. 411. Devise of land at a price a charge. 412. The lien of a charge superior to judgments against devisees. 413. Implied charge of lands by a devise of the residue. SECTION 414. Devisee personally liable for a legacy charged on land. 415. Releases by trustees of charges should be made for a consideration. 416. Effect of sheriff's sale upon charges. 417. When personal property must be exhausted before claiming by charge. 418. Apportionment of legacies charged in case of sheriff's sale. XVlll TABLE OF CONTENTS. CHAPTER XV. COLLATERAL INHERITANCE TAX. Page 167. SECTION 419. The collateral inheritance law. 420. Taxation of future interests. 421. Meaning of exemption of es- tates "less than two hundred and fifty dollars." 422. An estate not liable when tes- tator not seized or possessed. 423. When a deed intended to take effect after death of grantor property liable. 424. When legacies given by non- residents liable. 425. When land in Pennsylvania of non-residents converted not liable to tax. 426. Land in another state not liable. 427. Tax on annual net sums to be paid clear of tax. 428. Charities liable to tax. 429. Tax on realty to be paid by devisees not executors. 430. Non-resident personalty hav- ing situs in Pennsylvania liable to tax. CHAPTER XVI. APPOINTMENT OF TESTAMENTARY GUARDIANS. Page 172. of testamentary SECTION 431. Definition guardians. 432. Direction by act of assembly for the appointment of guardian of person. 433. Father in case of desertion of child deprived of right to ap- point. SECTION 434. When a mother who leaves an estate may appoint. 435- When mother testamentary guardian may appoint a succes- sor. 436. A testamentary guardian ap- pointed in another state. CHAPTER XVII. APPOINTMENT OF EXECUTORS. Page 174. 437. Definition of executors. 438. Executor has no authority to take charge of real estate. SECTION 439. Limited or conditional execu- torships. 440. Different ways of appointing executors. TABLE OF CONTENTS. XIX 441. Case of Orphans' Court sub- stituting an executor. 442. There may be an implied ap- pointment. 443. Renunciation of executor. 444. Appointing a successor. 445. Foreign executors. 446. Letters of administration cum testamento annexe. 447. Practical suggestions as to the appointment of executors. CHAPTER XVIII. RULES FOR THE CONSTRUCTION OF WILLS. Page 178. SECTION 448. There should be no attempt to construe that which needs no construction. 449. The intent is to be derived from the words used. 450. When plain meaning of words must govern as to intent. 451. Grammatical collocation of words to be adhered to. 452. It is not necessary to con- sider words exactly in the order in which placed. 453. A positive grant in a will cannot be taken away by incon- sistent implication. 454. No presumption of intestacy. 455. Heir at law can only be dis- inherited by express devise or necessary implication. 456. The law will adhere as closely as possible to the general rules of inheritance. 457. Presumption of equality. 458. In construction the law favors absolute and vested estates. 459. The first taker is presumed to be the favorite of the testa- tor. 460. If two clauses in a will are absolutely repugnant the latter will prevail. 461. Words used more than once in a will presumed to have the same sense. SECTION 462. The misuse of proper words will not destroy intent. 463. Cotemporaneous interpreta- tion of those affected by it for a considerable period of weight. 464. The law favors construction of vesting as soon as possible- 465. Conversion of a fee in a life estate not favored. 466. The effects of words of de- sire, recommendation and confi- dence. 467. When parol evidence is ad- missible to explain will. 468. Condition if possible con- strued as subsequent not pre- cedent. 469. A particular intent must yield to a general intent if in- consistent therewith. 470. Overstatement of the number of a class. 471. When words may be changed or implied to ascertain intent. 472. Subsequent provisions may define a prior estate and give a less right. 473. General rules of construction stated by Mr. Hawkins in his work on the construction of wills. 474. General English rules of Mr- Jarman for construction of wills. XX TABLE OF CONTENTS. CHAPTER XIX. LEGAL DEFINITION OF WORDS. Page 191. SECTION SECTION 475. "Heirs." 487. "Unimproved real estate.'' 476. "Children." 488. "Next nearest blood-rela- 477. "Issue." tions." 478. "Family."' 489. "Legal representatives." 479. "Relations." 490. "Benevolence." 480. "Personal estate." 491. "Last sickness." 481. "Estate." 492. "Net income." 482. "Personal effects." 493. "Charity." 483. "Land property." 494. "Domicile." 483*. "For and during her natural 495. "Between." life." 496. "Or." 484. "Then living." 497. "Among." 485. "Brothers and sisters." 498. "Money." 485*.. "Spinster or unmarried 499. "Profits." nieces." 500. "Cash." 486. "Property." SOI. "Household furniture." 486*. "Devise of rooms for life." CHAPTER XX. PRACTICAL SUGGESTIONS AS TO THE MAKING OF WILLS. Page 199. SECTION 502. Provisions for a widow under the intestate law. 503. Provisions for a widow by the husband's will. 503*. Providing for a widow by means of a trust. 504. Purchasing an annuity for a wife. 505. Release of widow's right by marriage settlement. 506. Will in case a woman dies leaving a husband. 507. Right of election by husband against wife's will. SECTION 508. Protection of husband's inter- est against creditors. 509. Loss of husband's rights by desertion. 510. When husband or wife takes whole estate in default of heirs. SI I. Provisions for children and issue in wills. 512. Provisions for minor chil- dren. 513. Provisions in wills for fathers and mothers. TABLE OF CONTENTS. XXI SECTION 514. Making a will to settle and close a business. 515. Bequest of business directly to legatee. 516. Trust for carrying on a busi- ness after death. 517. Provisions in wills for con- tinuing partnerships. 518. Liability of a deceased part- ner's estate in case of con- tinuance of firm's business. 519. Liability of the executor of deceased partner if partner- ship continues. 520. In case a surviving partner forms a new partnership. 521. A sale of a deceased partner's interest. 522. Bequest of partnership inter- est to a son. 523. Surviving partner must con- sent to partnership with legatee of interest. 524. Preventing liability of de- cedent's estate to pay whole firm's indebtedness. SECTION 525. Wills in relation to partner- ship real estate. 526. Provision for a general part- ner in a special partnership bequeathing his interest under act 1838. 527. Disposing of special partner's interest in case of death under act 1838. 528. In case of death of limited partner under act 1874. 529. The preservation of a farm intact by will. 530. Devise of a farm to a widow in fee simple. 531. Devise of a farm to a widow for a certain period. 532. Devise of a farm in trust. 533. Avoiding partitions by wills. 534. Modes of dividing real estate to avoid partition. 535. The necessity and advan- tages of providing for in- vestments. CHAPTER XXL FORMS. Page 2^5. SECTION 536. Commencement of wills. 537. Directions as to funeral ex- penses. 538. Directions as to masses. 539. Directions as to the place of burial. 540. Directions as to monuments. 541. Provision for the payment of debts. 542. Bequests with deductions of indebtedness of legatees. 543. A bequest with a release of legatee's indebtedness. 544. A debt of a devisee charged on real estate devised. 545. Declaration that a legacy shall not be in satisfaction of a debt of testator. 546. Declaration that a legacy shall be in satisfaction of a debt of testator. XXll TABLE OF CONTENTS. SECTION 547. Declaration as to advance- ments to be deducted from shares. 548. Declaration that advance- ments are not to be de- ducted from shares. 549. Bequests of personal and household articles. 550. Form for division of furni- ture between children of age or by executor. 551. Form for division of furniture between adults and trustee of minors. 552. Bequest of furniture, &c., to man and wife for life and to survivor. 553. Bequest of furniture to wife for life with power to will. 554- Bequest of office of profes- sional man and its contents. 555- Directing office furniture to be sold. 556. Bequest of a steam yacht. 557. Bequest of an interest in a vessel. 558. Bequest of stock of railroad company. SSQ. Bequest of paid up stock of a private company. 560. Bequest of stock of a private company not paid up. S6i. Bequest of bonds or bonds of corporations. 562. Bequest of money deposited in bank, trust company or saving fund. 563. Bequest of a claim for goods sold and delivered. 564. Bequest of a claim for money lent. S6s. Bequest of a promissory note. 566. Bequest of money due under contract. 567. Bequest of a life insurance policy. 568. Devise and bequest of prop- erty devised and bequeathed to testator. 569. Provision in case a specific legacy shall be paid off or disposed of. 570. Bequest of a judgment. 571. Bequest of a bond and mort- gage. 572. Bequest of a lease. 573. Bequest of fire policies of in- surance. 574. Bequest of fire policies of in- surance to trustees. 575. Pecuniary legacy. 576. Pecuniary legacy not charged on residuary real estate. 577. Bequest of an annuity to De purchased. 578. Legacies to clerks. 579. Legacies to servants. 580. Bequests for charities. S8i. Provision in case gifts for charitable or religious pur- poses shall fail by reason of death within a month after will. 582. A direction that legacies shall be paid in full in priority to others. 583. Direction that legacies are to be paid free of collateral inheritance tax. 584. Provision that if a legatee die before testator legacy shall go to executor or administrator. S8s. Provision for a demonstra- tive legacy. 586. Devise of an estate in fee simple. 587. Devise of a life estate and remainder. 588. Devise to two persons jointly for life and fee to survivor. TABLE OF CONTENTS. 589. Devise to man and wife as tenants by entireties. 590. Devise to tenants in common. 591. Devise of a contingent re- mainder. 592. Devise of a vested remainder. 593. Devise subject to the pay- ment of a mortgage. 594. Devise with right to have mortgage paid from estate. 595. Devise of land charged with payments. 596. Devise of ground rent in fee. 597. Devise of ground rent for life. 598. Brief will giving the whole estate. 599. Direction for conversion of estate into cash for distribu- tion. 600. Brief will giving the whole estate to a person for life and remainder over. 601. Giving the whole estate to a widow for life with remain- der to children and grand- children. 602. Giving an estate in trust for a wife with a provision in case she marries again. 603. Giving a wife household goods, money absolutely, in- come of money, dwelling house and stable. 604. A charge on real estate for the benefit of wife. 605. A charge on real estate to a trustee for wife. 606. A provision for the support of a wife by charges on land separately devised. 607. Giving real estate in trust for a wife for life with power to will. SECTION 608. Provision for the payment to wife for household expenses until settlement of estate. 6og. Giving an estate in trust for a husband, protecting the same from creditors. 610. Giving the whole estate to children. 611. Giving the whole estate to children and grandchildren. 612. Giving the whole estate to children and grandchildren, naming them. 613. Giving children vested inter- ests to be possessed at death of wife. 614. A bequest to minors payable at full age with accumula- tions. 615. Appointing guardians and di- recting income paid to wife for minors. 616. Instructions as to extraordi- nary education of minors by guardian. 617. Provision for guardian to ex- pend principal for minor. 618. Provision for a daughter in case of her marriage. 619. Provision for the separate use of a married daughter with a spendthrift clause added. 620. A spendthrift trust for a son and daughter. 621. Provision for a son for his entering into business. 622. Preserving unimproved land for a future sale. 623. Avoiding a partition of real estate and conversion of per- sonal estate. 624. Dividing and devising ac- cording to a survey. XXIV TABLE OF CONTENTS. SECTION 625. Disposing of real and per- sonal estate without con- version. 626. Provision to preserve the ' stock of a private corpora- tion from a sale and separa- tion. 627. Legacies of stocks of private corporations to control man- agement. 628. Providing for calls upon un- paid stock. 629. Devise and bequest of busi- ness property in trust for wife. 630. A bequest of a business to a wife absolutely. 631. A bequest of a business and lease to a wife. 632. A bequest of a business to sons upon their agreeing to support mother. 633. A bequest of a business as an advancement. 634. Devise to a wife of a farm for life. 635. Deyise of a farm in trust for a wife. 636. Bequest of the interest of a testator in a partnership to son. 637. Provision as to settling a partnership at dissolution. 638. Bequest of an interest of a special partner under act of 1838. 638.* Ordering executor to con- tinue the interest of a spec- ial partner under act of 1838. 639. Bequest of a general partner in a partnership under act 1838. 640. Bequest of an interest in a limited partnership under act 1874. SECTION 641. Agreement for a double will. 642. A double will. 643. Will in case of an agreement to convey real estate. 644. Power of sale where there is no conversion. 64s. Power of sale when there is a conversion. 646. Authorizing executor to sell an interest in a partnership. 647. Power given to trustees to sell. 648. Provision for succession of executors and trustees. 649. Authority to retain and hold illegal investments. 650. The exercise of a power of appointment. 651. A codicil where additional legacies are given. 652. A codicil revoking a legacy given by a prior codicil. 653. A codicil revoking a devise of real estate. 654. A codicil where several lega- cies are revoked or de- creased. 655. A codicil for a child born after date of will. 656. Renunciation of executor. 657. Caveat against the proof of a will. 658. Caveat against granting let- ters of adminstration c. t. a. 659. Form for appeal to Orphans' Court, Philadelphia, Pa. 660. Petition for citation over ap- peal. 661. Decree for citation. 662. Request for an issue in the Court of Common Pleas. 663. Declaration on feigned issue to try validity of will. 664. Count for a codicil. 665. Pleas to declaration. THE LAW OF WILLS IN PENNSYLVANIA CHAPTER I. WHAT ARE WILLS. SECTION 1. Definition of a will. 2. May be in any form. 3. When documents in the form of deeds are wills. 4. When deeds with reserved ben- efits are not wills. 5. Assignment of life insurance held to be a will. 6. May be in the form of a letter. 7. A paper expressing a gift held to be a will. 8. Wills by endorsements. 9. An invalid nuncupative will held to be a written will. 10 When extrinsic evidence will be received that a paper was ex- ecuted with testamentary in- tent. Definition of a Will. I. A will is a disposition of real and personal property to take effect after the death of the testator. When the will op- erates upon personal property it is sometimes called a testament ; and when upon real estate, a devise ; but the more general, and the more popular, denomination of the instrument, embracing equally real and personal estate, is that of "last will and testa- ment. "^ SECTION 11. Papers referred to in will. 12. Wills to take effect upon a contingency before death. Double wills. Contracts to leave property to another by will. Separate wills. Common law definition of nun- cupative wills. Provisions of Act of Assembly for nuncupative wills. Act must be fully and strictly complied with. Must be made in extremity. Persons present must be asked to bear witness, etc. '. Two wills executed on same day. 13- 14- 15- 16. 17- 19- 20. I 4 Kent's Com., 13 Ed., Sect. 68 *p. 502. 2 LAW OF WILLS IN PENNSYLVANIA. ULsij be in any Form. 2. An instrument may be in any form; and if the obvious purpose is, that it is not to take effect in the disposing of the maker's property until after death, there will be a will. The cases illustrating this principle are various.^ There was an instrument in the form of a letter-of-attorney, with directions that the attorney should hold the estate during the grantor's lifetime, and "render to her such accounts for rents and uses as she may need for her necessary support dur- ing her said life, if the same shall be sufficient," and upon her death should distribute the estate to certain persons specified. It was held that there was a will ; that the grantor did not part with her estate and vest it in presenti in the grantee ; that the testatrix did not part with her estate at all.* There was an appointment upon the book of the Western Saving Fund Society by a depositor, by which the deposit was directed to be paid, after the death of the depositor, to an ap- pointee, under a provision of the Society ; and it was held that there was a codicil which republished a will.* A testatrix drew three checks to the order of her daughter, and signed them, but did not remove them from her check- book, which remained in her possession until her death. The stub of one of the checks contained the following words : "Drawn to the order of Sallie E. Lambert being exceeding ill at the time these checks were drawn. If I get well they may not get the money ; if I do not I will be most glad if they come into their possession." The checks were separated from stubs by perforated lines. It was held, that the checks and the stubs should be admitted to probate as a codicil.^ When Documents in the Form of Deeds are Wills. 3. Occasionally persons make documents in the form of 2 Rose V. Quick, 30 Pa., 225; Turner v. Scott, 51 Pa., 126; Frew v. Clarke, 80 Pa., 170; Schad's Appeal, 88 Pa., in ; Fosselman v. Elder, 98 Pa., 159; Wilson V. Van Leer, 103 Pa., 600; Sullivan's Est., 130 Pa., 342; Knox's Est., 131 Pa., 220; Tozer v. Jackson, 164 Pa., 373; Harrison's Est., 196 Pa., 576. 3 Pritchett's Est., 9 Pa. C. C. R., 6oi. 4 Armstrong's Est., 2 Pa. C. C. R., i56 5 Lambert's Est., 10 Pa. C. C. R., 10, WHAT ARE WILLS. 3 deeds, whereby they are to receive the benefit of property in- tended to be conveyed for the term of their lives, with directions as to how such property shall go upon their decease. Some- times such documents are considered as wills and sometimes as trust deeds. The distinction seems to be, that if vested or fixed rights are given by a person in his lifetime to his prop- erty, after his decease there will not be a will ; but if not, it will be otherwise.® A father made a document styled an "Indenture" to his son, with a general warranty, for a tract of land in fee, in consider- ation of love and affection, and of the son performing certain services and maintaining the grantor's wife if she survived him, reserving the land to the grantor for life, the conveyance in no way to take efifect until after his decease. It was held that there was a will, and therefore it was revocable.'^ Wlieii Deeds with Reserved Benefits for Grantors Are not Wills. 4. A voluntary deed was made transferring property to a trustee, to be distributed by him among specified beneficiaries at such time as in his discretion he should deem proper, the in- come to be paid to the donor during life if distribution should not be made before his death, the grantor having reserved a power of revocation. It was held that the document was not testamentary.* By a formal deed lands were conveyed in fee simple, the grantors having reserved and excepted the right of living thereon and using the same while they lived. It was held that the instrument was not testamentary but a conveyance. That the right of occupation excepted out of the grant was not in- consistent with the passage of the title to the grantees.® Assignment of Life Insurance Held to Be a Will. 5. Conrad Schad, having insured his life for $4,000, as- 6 Kisecker's Est., 190 Pa., 476. 7 Turner v. Scott, 51 Pa., 126. 8 Lines v. Lines, 142 Pa., 149. 9 Cable V. Cable, 146 Pa., 451; Ritter's Appeal, 59 Pa., 9; Knowles v. Fleming, 165 Pa., 10. 4 LAW OF WILLS IN PENNSYLVANIA. signed the insurance to his wife after his death. It was held that the assignment was testamentary.^" May Be in the Form of a Letter. 6. It was held that a letter in lead-pencil, addressed to no one by name, but clearly intended for those who should have con- trol of the writer's property after her death, and requesting that certain things be given to persons named, was a will.-" ^ A Paper Expressing a Gift Held to Be a Will. 7. A decedent left in his bed-room at the time of his death a paper reading as follows : "High Rogers do give to John Jack- son, Sr., my property known as Pen Argyl Hotel and the land adjoining in Pen Argyl, Northampton County P. A. James Rogers." It was held that the paper being in his possession at the time of his death, and according to the circumstances, it was not a gift to take effect in decedent's lifetime, but a will, intended to take effect upon his death.^^ Wills by Endorsements. 8. A testatrix left a will. After her decease her executors found in her safe-deposit box an envelope containing certain se- curities. On the envelope was this endorsement: "June 21, 1897: six bonds for my brother John's three daughters; also one for my nephew, John Beard, to be sold after my death. P. H. P. Harrison." The person who wrote the endorsement on the envelope testified that it was written at the instance of the testatrix; that it was signed by her, and that with her own hands she selected the securities from the packages contained in her private box, and herself placed them in the enevlope. Held that the endorsement on the envelope was a valid codicil to the will, and that the court committed no error in awarding the securities in the envelope to the persons named in the endorse- ment in addition to the pecuniary legacies given to them by the will.13 10 Schad's Appeal, 88 Pa., iii. 11 Knox's Est., 131 Pa., 220. ■ 12 Tozer v. Jackson, 164 Pa., 373. 13 Harrison's Est., 196 Pa., 576. WHAT ARE WILLS. 5 An Invalid Nuncupative Will Held to Be a Written Will. 9. A man supposing he had made a nuncupative will, wrote on a blank page of a printed notice the following instrument : "Nov. 7, 1890. Nuncupative by word of mouth. My will was maid on the above date; everything left to my dear wife, Mary E. Fouche; all my real and personal estate and everything I own at the time of my death. William Fouche." It was held that the writing was a valid will, though as a matter of fact, there was no valid nuncupative will made in the ex- tremity of last sickness.^* When Extrinsic Evidence Will Be Received that a Paper Was Exe- cuted with Testamentary Intent. 10. Without regard to the form, it is competent to show by extrinsic, collateral evidence that a document was written and executed with testamentary intent.^^ Papers Referred to in Will. 1 1 . An account or book in writing signed by the testator may be referred to in the will, though it was copied from a paper which was destroyed. A book contained a statement of moneys paid in advance by the testator to his sons-in-law, which he mentioned and referred to in his will, thereby declaring that the sums "shall be their legacy in full out of my estate." The statement was held binding on legatees.^® It was held that a paper purporting to be a schedule of ad- vances made by a testator which were not mentioned or re- ferred to in the will, and which was made at a different time, formed no part of the will.^^ An extraneous, unsigned writing may, by force of a clearly expressed intention in the body of the will, constitute part of the will itself. The reference in the will must be complete and un- ambiguous ; it cannot be aided by extrinsic proof ; but the identi- fication of the writing referred to may be the subject of extrinsic parol testimony. 14 Fouche's Est, 147 Pa., 395. 15 Kiseker's Est, 190 Pa., 476; Sunday's Est, 167 Pa., 30; Scott's Est., 147 Pa., 89. 16 Hamberger v. Root, 6 W. & S., 431. 17 Grabill v. Barr, s Pa., 441. 6 LAW OF WILLS IN PENNSYLVANIA. A will was written on the first and third pages of a sheet of paper, and signed at the end of the third page. In a devise to A., written on the third page, numbered "4th," certain words describing the property devised were erased, and the words, "See next page," were there interlined. On the fourth page of the same sheet of paper was written an unsigned clause, num- bered "4," making a bequest to A., and also additional bequests to other beneficiaries. The scrivener who drew the will testi- fied that the erasure and interlineation were made by him by testator's direction, and he identified the writing on the fourth page as the subject of the said reference in the will, and as having been written by him at the testator's direction prior to the signing by the testator. Held that the writing on the fourth page was to be read into the will as constituting the 4th clause thereof, and that the entire instrument, with said clause incor- porated therein, should be admitted to probate as the testator's will.is A will may be made on distinct papers. It is sufficient that they are connected by their internal sense, by coherence or adaptation of parts.^^* Wills to Take Effect upon a Contingency Before Death. 12. A testamentary paper, which by its terms is to be effec- tive on the happening of a certain contingency before the death of the testator, cannot be admitted to probate as a will unless the contingency has occurred.^® Double Wills. 13. A will was executed by a brother and sister. By their will they provided that the survivor should have the property of the one first to die, during life, and that it should then go over to the remaindermen named. The will was made to speak for each devisor separately. The singular number was in- 18 Baker's Appeal, 107 Pa., 381. 18* Wikoff's Ap., IS Pa. C. C. R., 281 ; Dicksonfs Est., 20 Pa. C. C. R., 152. 19 Todd's Will, 2 W. & S., 145; Hamilton's Est, 74 Pa., 69; Morrow's Appeal, 116 Pa., 440; Jeffries' Est, 18 Super. Ct, 439. WHAT ARE WILLS. 7 variably used throughout the will, each testator speaking for himself or herself only, and neither attempting to speak for the other, or of the other's property. It was held that the will so made must be regarded as the separate will of each testator as fully as though the will of each had been separately drawn up and signed. There was not joint property, nor joint devise, and no joint will. The will was construed and trea.ted as the separate will of each testator. The brother did not revoke the will, and it was sustained. The sister exercised the power of revocation and changed the ultimate destination of her prop- erty, and her will so changed was sustained.^" Contracts to Leave Property to Another by WilL 14. An agreement between two persons, who each made a will in favor of the other, that they will devise the en- tire estate in the manner agreed upon at the time wills are executed, is not a contract for the use and benefit of each legatee which will enable him to recover from the estate of the surviving testator the amount of an adeemed specific legacy, or of a pecuniary legacy to another person by a codicil, there being only an expression of faith and confidence that the un- derstanding will be carried out.^^ There may be a valid contract, if based upon sufficient con- sideration, either to make a will of a stipulated character, or to make no will at all and thus permit a taking under the intes- tate laws; but the burthen of proving such a contract and of showing its precise terms is upon the party asserting it. The appellant claimed one-fourth of the estate, at the audit of the executor's account. It was contended that a letter amounted to a contract, by which the testatrix agreed to give to appel- lant one-fourth of her estate by will. But the court held there was no positive promise or agreement ; that there was nothing specific in the letter.^^ 20 Cawley's Appeal, 6 Pa. C. C. R., S5o; affirmed, 136 Pa., 628. 21 Donaldson's Est., 11 Pa. C. C. R., 311, O. C. Phila. Co. 22 Wright's Est., 11 Pa. C. C. R., 492; affirmed, 155 Pa., 64. 8 LAW OF WILLS IN PENNSYLVANIA. A Testator May Make Separate Wills for Separate Pieces of Property. 15. A testator may dispose of the several parts of his es- tate by distinct instruments.^^ Common Law Sefinition of Nuncupative Wills. 16. Nuncupative wills are such as are made "by word, or without writing, which is where a man is sick, and for fear that death, or want of memory or speech, should surprise him, that he should be prevented, if he staid for the writing of his tes- tament, desires his neighbors and friends to bear witness of his last will, and then declares the same presently, by word, before them." 2* By the Act of Assembly of 8th of April, 1833, the essentials of such wills are prescribed. Provisions of Act of Assembly for Nuncupative Wills. 17. Personal property may be bequeathed by a nuncupa- tive will under the following restrictions: I. Such will shall in all cases be made during the last sick- ness of the testator, and in the house of his habitation or dwell- ing, or where he has resided for the space of ten days or more next before 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.^^ Act Must Be Fully and Strictly Complied With. 18. The general rule requiring all wills to be in writing is intended to be as nearly universal as possible. The excep- tion in favor of nuncupative wills must be strictly adminis- 23 Wikoff's Appeal, 15 Pa., 281. 24 Redfield's Law of Wills, *i86. 25 Act April 8, 1883, Sect. 7; i P. & L. Dig., 1443, P. L., 249. WHAT ARE WILLS. 9 tered and confined to cases of necessity. Ignorance of the general rule, or carelessness about attending to it when the testator is conscious that his sickness is unto death, or mere aversion to be troubled about it, does not constitute such a necessity. The substance of the will, the intent to will, the call upon two or more disinterested persons to bear witness to it as a will, and the necessity of resorting to and depending upon a verbal will must, each and all, appear with great clear- ness in order to amount to proof.^® A testatrix was warned by her physician to make her will, as it was her last opportunity. From the time she was warned by her physician until her death, she had fully two days in which to have had a will prepared and executed. Near her death she said : "I want everything to be Willie's, for Willie is the only one who has taken care of me." These words were the alleged nuncupative will of the testatrix. She did not de- clare the words alleged to be her will and call upon those present to bear witness to this fact, and the will was not made in extremis.^'' Must Be Made in Extremity. 19. A nuncupative will is only valid where it is made in the extremity of the testator's sickness, which has come upon him so suddenly, unexpectedly and violently as to prevent his putting his testamentary wishes in writing. A person who was sick sent for one C, requesting him to call upon her. He did so on the following day at 2 P. M., when she told him it was her will that M should have all. At the time she did not be- lieve she was dying, nor was her death contemplated by others. She died suddenly at 6.30 P. M. of the same day. It was held, under the circumstances, a nuncupative will could not be estab- lished. If it had been considered probable that there would be a fatal termination, there was ample time and opportunity to have made a written will had she so desired.^^ 26 Rutt's Est., 200 Pa., 549. 27 Wiley's Est., 20 Pa. C. C. R., 389- 28 Conaughton's Est, II Pa. C. C. R., 460, O. C. Phila. lO LAW OF WILLS IN PENNSYLVANIA. Persons Present Must Be Asked to Bear Witness. 20. Bidding persons present, or some of them, to bear wit- ness that such was her will, or to that effect, "is not complied with, when the testatrix, in the absence of words bidding those present to bear witness, expresses such direction or desire by looking at a witness, while using words which are suffi- cient to make a testamentary disposition of her property." In Taylor's Appeal, 11 Wright, 31, Judge Thompson speaks of the necessity of the request to the by-standers to bear witness that "such was his will." Every Pennsylvania case where the question has arisen contains the same doctrine. "Perhaps a nod as an answer to a question might be sufficient." 2» Two Wills Executed on Same Day. 20*- Where two wills are executed on the same day, and one bears inherent evidence of being the first to be executed, it will be given effect as the first will.^" 29 In the Matter of Will of Meisenhelter, 38 L. I., 294. 30 Jeffries' Est., 24 Pa. C. C. R., 493. CHAPTER 11. CODICILS. SECTION 21. Definition of a codicil. 22. Physical annexation not neces- sary. 23. Will and codicil one instru- ment. 24. Republication of a will by codi- cil. 25. Probate of codicils. 26. Effect of codicil on a prior codicil. 27. When disposition by will and codicil inconsistent. 28. A residuary gift by codicil re- vokes a gift of residue by will. Destruction of a codicil. Effect of unsigned codicil on will. Reference in a codicil to a will a reference to prior codicil. I*. Codicil in substitution of lapsed contingent legacy. 21**. When revocation of will does not revoke codicil. 29. 30. 31- 31* Definition of a Codicil. 21. A codicil is a supplement to a will, or an addition made by the testator and annexed to it, and is to be taken as a part of a testament, being for its explanation, or alteration, or to make some addition, or else some subtraction, from the former dis- position of the testator.^ Physical Annexation Not necessary. 22. Physical annexation is not necessary; whether so an- nexed or not, the codicil is in construction of law a part of a will. A reference to the will will be sufficient. A codicil if not affixed to a will may be lost, especially if on a single piece of paper. For safety, it may be best to attach the codicil to the will firmly, with a permanent fastening, as by eyelets, or to write it on paper reserved for the purpose in the making of the original will.^ 1 Lee's Est., 16 Superior, 627. 2 Lee's Est., 16 Superior, 627. II 12 LAW OF WILLS IN PENNSYLVANIA. Will and Codicil One Instrument. 23. A will and codicil, though written on separate pieces of paper and executed at different times, constitute but one in- strument. The codicil, when properly executed, becomes a part of the will.^ Bepubllcation of a Will by Codicil. 24. A codicil upon the same piece of paper with the will operates as a republication of the will, so as to have it speak from that date.* The execution of a codicil to a prior will, being a republica- tion of it, operates as a revocation of an intermediate will.® Probate of Codicils. 25. A will and all codicils should be proved together, as constituting the will of the deceased; but where a testator intends codicils shall operate separately from the will it is possible that a codicil could be probated separately.^ Effect of Codicil upon a. Prior Codicil. 26. A testator may revoke any codicil already made and set up the original will unaffected by it. The confirmation of a will does not revive the parts of it which were altered or re- voked by the former codicils. If a man ratifies and confirms his last will, he ratifies and confirms every codicil that has been added to it.'^ When Disposition by Will and Codicil Inconsistent. 27. In the construction of a will the court will reconcile two dispositions which are apparently inconsistent; but this rule does not apply as between a will and a codicil, the argument being stronger in favor of revocation.^ 3 Pepper's Est., 148 Pa., S- 4 Coale V. Quick, 4 Pa., 376. 5 Neff's Appeal, 48 Pa., 501. 6 Pepper's Est., 148 Pa., 5. 7 Lee's Est., 16 Superior, 627. 8 Richard's Est, 16 Pa. C. C. R., 357, S. C, 4 Dis. Rep., 264. CODICILS. 13 A Residuary Gift by Codicil Revokes a Gift of Residue by Will. 28. By a first codicil a sister was given the residue. The second codicil revoked all former bequests and gave a Mary ■Ross a residue; and it was held that she was entitled to the whole residue.® Destructiou of a Codicil. 29. Where a codicil has been destroyed the- law presumes, in the absence of proof to the contrary, that it was destroyed by the testator himself.^'' Effect of Unsigned Codicil in Will. 30. When a will is complete in itself and signed by the tes- tator, an unsigned codicil will not render the whole will in- valid.ii Reference in a Codicil to a Will a Reference to Prior Codicils. 31. Where a later codicil refers to a will testator will be held to have referred to earlier codicils as well.^^ Codicil in Substitution of Lapsed Contingent Legacy. 31*. A legacy immediate in its terms, although given by a codicil in substitution for a lapsed contingent legacy given by the will, must be construed to be vested and payable at once un- less a contrary intent appears from the will and codicil. The fact that a legacy given by a codicil is substituted for a lapsed legacy given by the will is not sufficient to attach to it all the incidents of the lapsed bequest. It is necessary that the new bequest be "additional," that is to the same person, in order to be subjected. No intention to postpone the payment of a leg- acy given by a codicil unconditionally appears, because the same is substituted for a lapsed legacy given by the will to the legatee therein mentioned, when she "shall reach the age of twenty-one years." ^^ 9 Richard's Est., 16 Pa. C. C. R., 357, S. C, 4 Dis. Rep., 264. 10 Stewart's Est., 149 Pa., iii. 11 Smith's Est., 9 Pa. C. C. Rep., 333. 12 Richard's Est., 16 Pa. C. C. R., 357, S. C, 36 W. N. C, 264. 13 Fry's Est., 13 Pa. C. C. R., 264, affirmed 163 Pa., 30. 14 LAW OF WILLS IN PENNSYLVANIA. When Revocation of Will Does not Revoke Codicil. 31**. A codicil making a complete disposition of the testa- trix's whole estate, amounts to a revocation of the will to which it refers. Where a codicil is capable of subsisting indepen- dently, a destruction of the will, to which it refers, will not re- voke it. The following language from Jarman on Wills adopt- ed, "Sometimes there is found, among the papers of a testa- tor, a codicil without the will of which it professes to be a part; in such cases the question arises whether or not the destruction of the will (which is to be presumed, in the absence of proof to the contrary, was the act of the testator), operates, impliedly, to revoke the codicil also. The question, of course, depends mainly upon the contents of the several testamentary docu- ments. If the dispositions in the codicil are so complicated with, and dependent upon those of the will, as to be incapable of a separate and independent existence, the destruction of the will necessarily revokes the codicil, and before i Vic. c, 26, the general presumption in the ecclesiastical courts was rather in favor of the intention to involve a codicil in the revocation of the will of which it was a part, where a contrary intention could not be collected, either from the contents of the codicil or from extrinsic evidence." "But if the codicil was capable, from the nature of its contents, of subsisting independently of the will, its validity was not affected by the destruction of the will." ^* 14 Smith's Est., 2 Pa. C. C. R., 626, O. C. CHAPTER III. WHO MAY MAKE A WILL. 32. By the Acts of 1833 and 1893. 38. Disability from insanity. 33. Wills of deaf, dumb or blind 39. Partial insanity. persons. 40. Wills made during delirium. 34. The legal definition of a 41. Wills made by drunkards. "sound mind." 42. Wills made during lucid inter- 35. Loss of memory. vals. 36. Wills of old or sick persons. Zl- A sound mind with hallucina- tions. By the Acts of 1833 and 1893. 32. "Every person of sound mind (married women ex- cepted) may dispose by will of his or her real estate, whether such real estate be held in fee simple, or for 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." ^ No will shall be effectual unless the testator was at the time of making the same, of the age of twenty-one years or up- wards, at which age the testator may dispose of real as well as personal or mixed property, if in other respects competent to make a will.^ "Hereafter a married woman may dispose of her property, real and personal, by last will and testament in writing signed by her or by her direction, or attested by mark, made by her or by her direction, at the end thereof, in the same manner as if she were unmarried. Provided, that nothing in this act shall affect her husband's right as tenant by the curtesy, nor his right to take against her will, as provided by existing laws." * Act of April 8, 1833, Sect, i, i P. & L. Dig., 1440, P. L., 249. : Act of April 8, 1833, hect. i, i F. & L. Dig., 1440, P. L., ! Act of April 8, 1833, Sect. 3, P. & L. Dig., 1440, P. L., 2 I Act of June 8, 1893, Sect, s, i P. & L. Dig., 1439, P. L. 1 6 LAW OF WILLS IN PENNSYLVANIA. Wills of Deaf, Dumb or Blind Persons. 33. Deaf, dumb or blind persons may execute wills with proper precautions. As to a blind person, it is suggested that his will be read over to him and that he state that it is his will, and that he is satisfied with it, and if he cannot write his name, that he direct some one to sign his name at the end of the will and that then he make his mark between the first and last names, his hand being guided. As to a deaf and dumb person, if he signs his name to a will, this seems sufficient. As to any conversation as to the execution of a will it seems it could be done by the usual sign language. The Legal Definition of a Sound Mind. 34. According to the common, ordinary definition of a "sound mind," it must be perfect, undecayed, healthy and not defective or impaired by age, sickness or other cause. By the decisions of the courts the rights of persons to make their wills are favored, and there has been great liberality shown in extending and sustaining such rights. According to Pennsylvania decisions, a "disposing mind" is described as "one in which the testator is shown to have had, at the making and execution of his will, a full and in- telligent consciousness of the nature and ejffect of the act he was engaged in — a knowledge of the property he possessed — an understanding of the disposition he wished to make of it by the will, and of the persons and objects he designed to par- ticipate in his bounty." * There may exist, with testamentary capacity, the infirmities of old age and sickness, lessened mental activity, delusions, extreme distress, failure of memory, habitual intemperance, profanity, eccentricities of manner, flightiness, violent out- bursts of passion, unfounded beliefs; erroneous, foolish and absurd ideas. Alexander Mcllroy, an old man, left an estate valued at about $30,000. He left a bequest to his only child, Mrs. Martha Buchanan, and a generous provision for his house- 4 Daniel v. Daniel, 39 Pa., 191. WHO MAY MAKE A WILL. 1 7 keeper. He gave the rest of his property to the Spiritualists, for the purpose of founding a hall. The daughter contested the will, on the ground that the father was not of sound mind when he made it, and that the Spiritualists had exercised undue in- fluence over him. The will was set aside in the court below, but on appeal to the Supreme Court this verdict was set aside. It was held that there was no evidence that Mcllroy was of unsound mind, and that belief in Spiritualism is no evidence of insanity. The opinion states : "The will which is brought before us in this case does not bear upon its face any indication that it is the product of an un- balanced mind. Upon the contrary, it shows throughout the impress of a rational mind, possessed of clear and definite knowledge of the character and extent of the estate, and of the persons upon whom it is bestowed. In its various provisions nothing appears which offends the reason or shocks the moral senses. It speaks rather in terms of thoughtful and considerate kindness. In the bequest to his daughter the testator carefully provides for her a home as long as she lives and an annual in- come." ^ Proof that the testator was successfully carrying on a con- siderable business at the time when he executed his will and that he continued to do so for years afterwards, is sufficient to refute an allegation of testamentary incapacity, even though it also appears that he was eccentric, peculiar and slovenly, in his conduct, conversation, personal habits and attire.^* Loss of Memory. 35. Loss of memory may or may not affect the capacity to ■make a will. Considering that a loss of memory is a natural and common result of old age, it would never do to hold that such loss will generally deprive a person of the privilege of making a will. Whether it will or not must depend upon the circumstances of each case. The cases where such loss is so great as to destroy testamentary capacity are rare. They are (generally those where a person forgets the immediate members 5 Appeal from C. P. No. 5, Phila. Co., Opinion given Feb. 24, 1903, (not yet reported). 5* Knight's Est., 14 Pa. C. C. R., 457. 2 1 8 LAW OF WILLS IN PENNSYLVANIA. of his family, and his property. Even in such cases it seems that a testator's memory could be refreshed at the time of the (making of the will and a person be rendered competent; but there are cases indicating the contrary. There is a possibility of persons, even if they are not very old, forgetting their prop- erty or not knowing what property they own. For instance, they may have given the management and control of their prop- erty for years to another, who may have changed it in many particulars unknown to the owner. A testator's property may consist of a great variety of securities, with many names hard to bear in mind, and the quantity of each kind may be hard to remember. Why should not such persons be permitted to make wills in a general way so that it will not be necessary to know just what particular property exists and every item of it? Tes- tators may be physically helped in signing their names or in making their marks; counsel may advise them as to the legal propriety of provisions in a will ; and there seems to be no good (reason why defects of memory should not be obviated if possi- ble. This comment is the author's own, and is not given as that sustained by the authorities. It has been said : "How far a failure of memory induced by physical decay, or by another cause, denotes a want of dis- posing power on the part of a testator, has been the subject of frequent discussion. It is a question involving so many conditions of character, temperament, and circumstances, that mo rule of universal application can be devised. But it may per- haps be safely assumed that the requisite measure of testa- mentary capacity exists when the testator evinces a fair knowl- edge of his property and is able to designate intelligently the objects of his bounty." However it has been said, in the language of the cases, that a testator must have sufficient active memory to collect in his mind, without promptings, the particulars or elements of the business to be transacted." ® Wills of Old or Sick Persons. 36. It was held that one who is suffering physical pain, is 6 I Redfield on Wills, 130*. WHO MAY MAKE A WILL. I9 restless, excited, "fidgety," and despondent, is not thereby ren- dered incapable of making a valid will.'^ If the infirmities which attend old age, amount to nothing more than a weakened memory and vacillating judgment, they will not be held to deprive a testator of testamentary capacity. It is important to show the state of mind on the day a will i-s made.^ Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will if sufficient in- telligence remains.® A Sound IVEind with Hallucinations. 37. Mere unfounded assertions that one has been robbed and is destitute, do not prove mental unsoundness amounting to testamentary incapacity. That question is to be determined by the knowledge of the testator of the character and value of his estate and his appreciation of the purposes to which he pro- poses to apply it.^" Disability from Insanity. 38. Insanity is sometimes very obvious, but often exhibits itself in modes and forms so subtle as almost to elude the obser- vation of the most wary and unexperienced. It may be mani- fested by symptoms, such as change in habits and tastes, a be- lief in illusions, or hallucinations, inability to form correct in- ferences and deductions from facts, extreme irritability, prone- ness to anger, suspicion, concealment, obstinacy, abnormal im- pulses and inclinations, fondness for or aversion to particular persons, without any special reason; disposition to exercise cruelty, murderous desires, a wish to commit crimes, a dis- position to soliloquize aloud, and to laugh without a visible rea- son.^ ^ It has been held that incipient insanity does not invalidate a deed, unless it is of such a character, as to unfit the maker for 7 Spellier's Est, 13 Pa. C. C. R., 429. 8 Tarr's Est., 3 Pa. C. C. R., 319. 9 Caldwell's Est, 10 Pa. C. C. R., 318. 10 Roger's Est., 2 Pa. C. C. R., 545, O. C. 11 I Redfield on Wills, 69*. 20 LAW OF WILLS IN PENNSYLVANIA. ordinary business. It seems that the same law will apply to the case of a will.^^* Partial Insanity. 39. Partial insanity "consists of a mental or moral per- version, or both, in regard to some particular subject or class of subjects; while in regard to others, the person seems to have no such morbid affection." . . . "The de- grees of monomania are very various. In many cases the per- son is entirely capable of transacting any matters of business outside of the range of his peculiar infirmity. A will will be defeated which is the direct offspring of partial insanity.^^ A testator had excluded from any participation in his estate two of his daughters — one because of her marriage to a gen- tleman against whom he conceived a sudden and most ground- less antipathy, the other because of her presence at the mar- riage ceremony ; and reduced the shares of two other children who were present, to life estates, — ^the consequences in their case being thus made to fall upon their descendants. The court held "that the owner of an estate may dispose of it as he chooses, so long as he infringes no rule of propriety ; and that his will is not, ipso facto, invalid, because its provisions are harsh, cruel, and altogether unreasonable and unnatural, are propositions which cannot be gainsaid or denied; but in con- sidering the question of validity, as affected by the mental con- dition of the testator, the character of the will is always to be regarded, and when the evidence is in doubt it ma.y be sufficient to turn the scale." The evidence showed that the testator was the victim of an insane condition of mind manifesting itself some months before the execution of the will, and that its pro- visions were directly attributable to that condition. From im- proper and excessive dosing he fell into a hypochondriacal con- dition, believing himself unable to leave his room or even his bed. It was further held : "That a will which may be inferred to be the direct offspring of an insane delusion is invalid, al- though in all other respects — memory, judgment, and ability II* King V. Humphreys, 138 Pa., 310, (1890). 12 I Redfield on Wills, 71*; Boyd v. Eby, 8 Walts, 71. WHO MAY MAKE A WILL. 21 to conduct business generally — the mind of the testator may ap- pear to be unimpaired, is well settled." What was said by Sir John Nicoll in the leading case of Den v. Clark, i Addams, 279, was quoted as follows : "She (the daughter of the testator) must be apprised that the burthen of proof rests with her, and that this burthen, in my judgment, is from the nature of the case a pretty heavy one. .... She must understand that no course of harsh treatment, no sudden burst of violence, no display of unkind or even unnatural feeling merely, can avail in proof of her allegation : she can only prove it by making out a case of antipathy, clearly resolvable into mental perversion, and plainly evincing that the deceased was insane as to her, notwithstanding h'is general sanity." ^^ Wills Made Buring Delirium. 40. Delirium is sometimes caused by sickness or intemper- ance. When from sickness, it ceases with the restoration to health. In a case of drunkenness it generally ceases with the removal of the cause and there is no presumption of continu- ance when the cause ceases to operate. Where it appeared that a testatrix at the time she made her will was not affected by intoxication it was held that evidence that she was in the habit of using intoxicants in excess was immaterial.^* Wills Made by Drunkards. 41. In order to establish such testamentary incapacity aris- ing from drunkenness as will be sufficient to render a will in- valid, it is necessary to show that at the time of executing the will the testator did not possess testamentary capacity. His condition before and after that time is not conclusive.^ ^ Evidence showed that the testator originally possessed a strong mental organization, which had become weakened by a sun-stroke, and the use of liquor, but the evidence was in- sufficient to show that the testator did not possess, at the time of the execution of his will, sufficient mind and memory to ap- 13 Carter's Est., 11 Pa. C. C. R., 140, S. C, I Pa. Dis. Rep., 69. 14 .Walton's Est., 194 Pa., 528. 15 Diamond's Est., 16 Pa. C. C. R., 241. 22 LAW OF WILLS OF PENNSYLVANIA. preciate and understand the nature of the act by which he was to direct the disposition of his estate and an issue to try the vahdity of the will was refused. A number of witnesses testi- fied to the mental unsoundness of the testator. The witnesses examined, excepting a doctor, were not treated as experts. That a testator has been found to be an habitual drunkard is not conclusive evidence of incompetency to make a will, nor is evidence of the habitual use of liquor to excess. It. was held that the proof must go to the extent of showing that at the time of executing the alleged will, the testator was mentally un- fitted to dispose intelligently of his property.^ ^* Wills Made During Lucid Intervals. 42. If general lunacy is established there must not be a mere cessation of symptoms of the disorder, but a restoration of the faculties of the mind sufficient to enable the person to judge soundly of the act. If insanity is once shown to exist, the pre- sumption is that it continues. When a will is claimed to have been executed in a lucid interval, it is not competent to leave the question to presumption or inference, or that the testator was of sane mind the day preceding ; but it must be shown that he did possess testamentary capacity at the very time of execu- tion. The proof of a lucid interval must be clear.^® IS* McPherson's Ap., 11 Pa. C. C. R., 205; Dugan's Est, 19 Pa. C. C. R., 395- 16 Haden v. Hays, 9 Pa., 151 ; Gangwere's Est., 14 Pa., 417. CHAPTER IV. UNDUE INFLUENCE. SECTION 51. Who may stand in confidential relation. 52. Whole will not necessarily void by undue influence. 53. Presumption of the absence of undue influence. 54. Requisite proof of undue in- fluence. 55. The undue influence must ex- ist at the time of making will. 56. Wills obtained by fraud. SECTION 43. Definition of undue influences. 44. Mere persuasion not undue in- fluence. 45. Influence from family and so- cial relations. 46. No presumption from resi- dence. 47. Unequal division among chil- dren. 48. Influence by unlawful relations. 49. Contents of will showing un- due influence. 50. Those har\ring confidential re- lations may have to show testator's capacity. Definition of Undue Influence. 43. Undue influence, of the kind which will affect the pro- visions of a testament, must be such as subjugates the mind of the testator to the will of the person operating upon it. In such case the testator is not a free agent ; he becomes the mere implement of another's craft, and his testament that of the superior will. The free agency of the testator at the time and in the very act of making the testament must be destroyed. Undue influence may be exercised either through threats or fraud; but however used it must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament. Solicitations, however im- portunate, cannot of themselves constitute undue influence; for though they may have a constraining effect, they do not destroy the testator's power to freely dispose of his estate.^ I Frost V. Dingle, 118 Pa., 259; Newlin's Est., 7 Pa. C. C. R., 648; Hind- man V. Van Dyke, 153 Pa., 243 ; Thompson v. Kyner, 65 Pa., 368 ; Eckert v. Flowry, 43 Pa., 46; Tawney v. Long, 76 Pa., 106. 23 24 LAW OF WILLS OF PENNSYLVANIA. Mere Persuasion Not Undue Influence. 44. Persuasion may be fairly used. A man has a right, by fair argument and persuasion, to induce another to maiie a will and even in his own favor. A will procured by circumven- tion will be set aside ; but a will procured by honest means, by acts of kindness, attention and by importunate persuasion which delicate minds would shrink from, would not be set aside on these grounds alone.^ Influence from Family and Social Relations. 45. Where there is no evidence that a beneficiary in a will solicited the bequest himself, or wrote the will or procured Jt to be written, or that his advice was sought or taken, the ex- istence of intimate friendly relations between the testator and the beneficiary, such as living with him, nursing him and managing his business, does not import undue influence; or shift the burthen of proof from those who allege it.^ Lawful influence, such as that arising from legitimate and social relations, must be allowed to produce its natural re- sults, even in influencing last wills. However great the influ- ence thus generated may be, it has no taint of unlawfulness in it; and there can be no presumption of its unlawful exercise merely from the facts that it is known to have existed and that it has manifestly operated upon the testator's mind as a reason for his testamentary disposition. No will can be condemned because the existence of such influence is proved, and because the will itself contains proof of its effect. It is only when such influence is unduly exercised while in the act of devising, so as to prevent the will from being truly the act of the testator, that the law condemns it as a vicious element of the testamen- tary act.* No Presumption from Residence. 46. A legatee who makes her home with a testator will not, on that ground alone, be presumed to have unduly influenced 2 Miller v. Miller, 3 S. & R., 267; Hindman v. Van Dyke, 153 Pa., 243. 3 Messner v. Elliott, 184 Pa., 41. 4 Dean v. Negley, 41 Pa., 312; Tallman's Est, 148 Pa., 286. UNDUE INFLUENCE. 25 the testamentary act of the latter. Ashman, J., said : "We need only repeat what was said in Wood's Est., 13 Phila., 236, and in effect in Lang's Est., 44 Leg. Int., 431 ; Dean v. Negley, 41 Pa., 317, and Miller v. Miller, 3 S. & R., 269, that a legatee who makes her home with a testator will not, on that ground alone, be presumed to have unduly influenced the testamentary act of the lattef."^ Unequal Di-vision Aiaong Children. 47. An unequal division by a testatrix of her estate among her children, preferring those who form part of her household to those who are absent, or married, is not evidence of undue influence.® Influence by Unlawful Relations. 48. The existence of an unlawful relation between a testator and a beneficiary under his will is not in itself proof of undue influence, nor does it give rise to a presumption of undue in- fluence; but, coupled with other circumstances, indicating either actual constraint, impaired testamentary capacity, loss of will power, habits of intemperance, sickness or disease, at the time of making the will, the existence of an unlawful rela- tion between the testator and a beneficiary may give rise to a presumption of undue influence.'^ Such relations do not create a presumption of undue in- fluence, but leave the effect thereof as a question of fact for the jury. No' clearly defined weight can be given to such testi- mony. Much must depend on the particular circumstances of each case. It is an element to be considered.^ Contents of Will Showing Undue Influence. 49. "Where a will is impeached from imbecility of mind in the testator, together with fraudulent practices by the devisees, the intrinsic evidence of the will itself, arising from unreason- 5 Foster's Est., 142 Pa., 62. 6 Murray's Est., 11 Pa. C. C. R., 263, O. C. Phila. Co. 7 Heilbrun/s Est., 9 Pa. C. C. R., 350, O. C. Phila. ; Rudy v. Ulrich, 69 Pa., 177; Dean v. Negley, 41 Pa., 312. 8 Main v. Ryder, 84 Pa., 217. 26 LAW OF WILLS IN PENNSYLVANIA. ableness or injustice of its provisions, taking into view the state of the testator's property, and the claims of particular individu- als, is competent and proper for the consideration of the jury. The issue devisavit vel non involves the validity of the execu- tion, and not the contents ; yet the contents, so far as they have a bearing on the question of execution are pertinent, and with this view, the whole will is usually read. But the particular provisions of the will could have no practical influence on the question, without evidence of the circumstances and conditions of the testator's family and property ; for it is only by a com- parison of these with each other that an inference arises as to the sanity of his mind and its freedom of action. To justify a jury in invalidating a will, from its intrinsic evidence only, would require an extreme case, perhaps such as never can oc- cur; but the disposition of the property may be so utterly ab- surd or unjust as to induce a reasonable belief that no man in his senses, and uncontrolled by any improper influence, would make it; and there may be cases where the internal evidence, added to other proof, which would of itself leave the question doubtful, ought to turn the scale." * Those Having Confidential Kelations May Have to Show Testator's Capacity, Etc. 50. Where the alleged testator is shown by evidence to be weak in mind, whether from age, bodily infirmity, great sor- row, or other cause tending to prove such weakness, though not sufficiently so to produce testamentary incapacity, and the person whose advice has been sought and taken receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full under- standing of the nature of the disposition contained in it.^" Who May Stand in Confidential Belations. 51. A confidential relation is not confined to any specific association of the parties to it. While its more frequent illus- 9 Patterson v. Patterson, 6 S. & k., 54. 10 Cuthbertson's Appeal, 97 Pa., 163; Yardley v. Cutlibertson, 108 Pa., 39; Smith's Est., 14 Pa. C. C. R., 565, 3 Pa. Dis. R., 247 ; Griffin's Est., 23 Pa. C. C. R., 559. UNDUE INFLUENCE. 2/ trations are instances between persons related as trustee and cestui que trust, guardian and ward, attorney and client parent and child, husband and wife, it embraces co-part- ners, principal and agent, master and servant, physician and patient, and generally all persons who are associated by any re- lation of trust and confidence. A confidential relation can exist in the case of one acting as a caretaker of an old, infirm per- son.^ ^ The relation of landlord and tenant is not such a confidential relation as to raise the presumption that undue influence was secretly exercised. It was contended that the legatees were tenants of the testatrix, visited her frequently, often furnished her with meals, took her out riding, and seemed to pay a great deal of attention to her both in sickness and in health. The legacies were sustained.^^ Whole 'Will not Wecessarily Void by TJndue Influence. 52. When undue influence is supposed to have been exer- cised in obtaining a will, it seems that the whole will is not necessarily void, but it will be left to the jury, in case of real estate, and to the judge of the court of probate, in the case of personalty, to determine what has been obtained by undue influence ; and such particular disposition only will be declared void.^* Presumption of the Absence of Undue Influence. 53. Where the making and execution of an alleged will are not denied, the absence of undue influence will be presumed, and such presumption will stand until overcome by the weight of testimony.^* Requisite Proof of Undue Influence. 54. The proof of undue influence must be of some fraud 11 Scattergood v. Kirk, 44 W. N. C, 313, S. C. ; Darlington's Est, 147 Pa., 624. 12 Tallman's Est., 148 Pa., 286. 13 Widdowson's Est., 189 Pa., 338; Cuthbertson's Appeal, 97 Pa., 163; Ward's Est., 7 Pa. C. C. R., 324- 14 Messner v. Elliott, 184 Pa., 41. 28 LAW OF WILLS IN PENNSYLVANIA. practiced, some threats or misrepresentations made, some un- due flattery or some physical or moral coercion employed, so as to destroy the free agency of the testator, and that such in- fluence operated as a present constraint, at the very time of making the will.^® When the charge is that undue influence was exercised upon a mind healthy, strong, and free, nothing short of direct proof will avail, and it must be clear and convincing.^* The Trndue Influence Must Exist at the Time of Making Will. 55. Fraud, restraint or other undue influence must be shown by either direct or circumstantial evidence to have been pres- ent at the very time of making of the instrument.^ '^ "There must be evidence of a present and operating restraint at the time of making of the will : Eckert v. Flowry, 43 Pa., 46; Wainright's Appeal, 89 Pa., 220; Herster v. Herster, 122 Pa., 239." 18 Wills Obtained by Fraud. 56. A will obtained by fraud will be void. Any important abuse of the testator's confidence by making him believe un- founded imputations against those entitled to his bounty, if done understandingly, is held fraudulent. It was competent to show that the facts communicated were untrue and that the testator had been deceived. Fraudulent misrepresentations by the principal devisee respecting the wife of a son of the testator, coupled with some proof of mental infirmity, were held to avoid the devise to the party making these representations.-^® 15 Tawney v. Long, 76 Pa., 106. 16 Logan's Est., 195 Pa., 282. 17 Humphries' Est., 6 Pa. C. C. R., 439, O. C. Phila. ; Stephen's Est., 6 W. N. C, 628, O. C. Phila. 18 Murray's Est., II Pa. C. C. R., 263, O. C. Phila. 19 Dietrick v. Dietrick, 5 S. & R., 207. CHAPTER V. EXECUTION OF WILLS. SECTION 57- Requirements by Act of As- sembly. 58. When a will is made by writ- ing. 59. Typewritten will allowed by Act of Assembly. 60. No special acknowledgment of testator necessary. 61. Reading the will to testator. 62. How the testator's name to be signed. 63. The signing of a will at the end thereof. 64. May be signed by a mark. 6s. Act of 1848 has no retroactive force. 66. A cross before Act and death after. 67. A mark must be made with in- tention to execute will. 68. May be affixed though testator able to write. 69. Evidence necessary to prove mark. 70. Signing by another by express direction. 71. When testator cannot sign from extremity and directs another to sign. y2. Presumption of continuing in- ability to sign name. 73. Not necessary to have sub- scribing witness to signature. 74. Testimony of subscribing wit- nesses. 75. Disability after giving instruc- tions for a will. 76. Propriety of having witnesses who can be procured to prove. Erectuirements by Act of Assembly. 57. "Every will must 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 or affirmations of two or more competent witnesses, otherwise such will shall be of no effect." 1 When a Will Is Made by Writing. 58. A will written and signed with a lead pencil will be I Act April 8, 1833, I P. & L. D., 1440; P. L. 249, Sect. 6. 29 30 LAW OF WILLS IN PENNSYLVANIA. valid.^ A court below decided that a writing on a slate will not be admissible as a will.^ The Supreme Court have treated the question as to whether a slate can be admitted to probate as open and one of great difficulty. Typewritten Will Allowed by Act of Assembly. 59. "All typewriting heretofore executed or done, and all typewriting which may be hereafter executed or done, for any purpose, and in any instrument whatever, shall have the same legal force, meaning and effect as writing, and writing shall be taken and held to include typewriting : Provided, This act shall not be construed as to in any manner affect or change the law as it now is respecting signatures." ^^ Ko Special Acknowledgment of Testator necessary. 60. It is not necessary that the testator expressly acknowl- edge an instrument to be his will; it is sufficient that he de- clares the execution to be his act and deed.* It was held by the orphans' court of Philadelphia county by opinion of Penrose, J., as follows : "When a testator declares to the persons who thereafter sign their names as subscribing witnesses that the instrument ex- hibited to them is his will, and that the signature which they are to attest is his own, everything has been done that the law re- quires, after his death, to admit the will to probate. The dec- laration that it is his will, where there is no evidence of mental weakness, necessarily implies full knowledge on his part of all its provisions, even though from want of education or defective vision he is unable to read ; and it is quite immaterial that the subscribing witnesses were not informed of its contents, or that it was not read in their presence. As has often been said, in- quiry by a subscribing witness as to the contents of the will would be considered a most impertinent and offensive curiosity : Lewis V. Lewis, 6 S. & R., 489; Comb's and Hawkinson's Ap., 9 Out., 155. Where as in the present case, the testatrix was 2 Myers v. Vanderbelt, 84 Pa., 510. 3 Reed v. Woodward, 11 Phila., 541. 3* Act June 18, 1895, Sect, i, 3 P. & L. D., 609, P. L., 209. 4 Loy V. Kennedy, i W. & S., 396. EXECUTION OF WILLS. 3 1 blind, partially or wholly, it would be presumed that her knowl- edge of the contents was obtained by hearing the paper read ; and as fraud or imposition is never presumed, affirmative proof that it was so read would be unnecessary until evidence to over- come the presumption had been offered by the contestant."** Beading the Will to Testator. 6i. A will written in the presence of the testator, and accord- ing to his dictation, is valid though not read to or by him.® How the Testator's Name to Be Signed. 62. The form which a man customarily usfes to identify and bind himself in writing is his signature, whatever shape he may choose to give it. What is a sufficient signature depends largely upon the custom of the time and place, the habit of the individual, and the circumstances of the particular case. It is not necessary that the full name be signed : A testatrix, a mar- ried woman, merely signed the name "Harriet" to a letter writ- ten in lead pencil which was held to be a will.® Exactly what constitutes a signing has never been reduced to a judicial formula, but barring any sudden incapacity to complete the signature by reason of the extremity of last sick- ness, it is an indispensable element that the signature actually made shall be a full and complete signature according to the intention and understanding of the testator. A testator started to write his name and made a stroke which bore no resemblance to the form of mark ordinarily used for such purposes and then stopped and said, "I can't sign it now." It was held that the intention to execute by mark was disproved.'^ The Signing of the Will at the End Thereof. 63. A will was written on three pages, but as it was signed at the bottom of the second page, it was held to be invalid.^ A testator signed his will at the end thereof, but after the signa- 4* Hand's Est., 4 Pa. C. C. R., 446 ; Lee's Est., 5 Pa. C. C. R., 396. 5 Hess's Appeal, 43 Pa., 73. 6 Knox's Est., 131 Pa., 220. 7 Plate's Est., 148 Pa., 55. 8 Frazier's Est., 26 W. N. C, 304, O. C. 32 LAW OF WILLS IN PENNSYLVANIA. ture added the words, "I will that Cephas Lash and Henry Wineland be my executors," which he did not sign and the Su- preme Court held that it was error to admit the will to pro- bate.^ A testatrix signed her will at the end thereof in the usual way ; afterwards with the assent of the testatrix, a clause appointing an executor was added. It was held that the will was complete before the additional clause was added, and the will was admitted to probate. The court in referring to Wineland's Appeal, ii8 Pa., 37, said: "In that case it was in evidence that the paragraph appointing the executors was written as part of the will before it was signed by the testator or attested by either of the witnesses. And as the testator signed his name above or over the paragraph mentioned, he thus allowed it to remain unsigned at the end thereof. But that is not this case, and the doctrine of Wineland's Appeal, supra; Frazer's Will, 20 Phila., 40, do not therefore apply. On the contrary we think that it is governed by Heiss v. Heiss, 31 Pa., 246, and Smith's Est., 20 Phila., 94. It was held by an orphans' court that where a will is executed with all the forms of law, it will not be invalidated by subsequent ad- ditions thereto by the testator, which are not signed by him. The rule is the reverse where the whole instrument is pre- pared at one and the same time and was intended to be so exe- cuted.^" The additions will be considered as an unexpected codicil, and the will as originally written will be allowed to stand." May Be Signed by a Mark. 64. It is provided that "Every last will and testament hereto- fore made or hereafter to be made, excepting such as may have been finally adjudicated prior to the passage of this act, to which the testator's name is subscribed by his direction or authority, as to which the testator had made his mark or cross, shall be deemed and taken to be valid in all respects. Provided, the other requisites, under existing laws are complied with." ^^ 9 Wineland's Appeal, 118 Pa., 37. 10 Baird's Est., 4 Pa. Dis. Rep., 123. 11 Baird's Est., 15 Pa. C. C. R., 247, O. C. 12 Act January 27, 1848, Sect. I, I P. & L. D., 1442, P. L., 16. EXECUTION OF WILLS. 33 Act of 1848 Has no Retroactive Porce. 65. It was held that the Act of 1848 is destitute of retro- active force, because in such case it would be an act of judicial power and unconstitutional.^^ A Cross Before Act and Death After. 66. Since the Act of 1848, a signing with a cross or mark merely is a sufficient signing of a will, where the execution was prior to the act, and the testator died after passage.^* A Mark Must Be Made -witli Intention to Execute Will. 67. There must be an intention to make a mark.^^ Mark May Be Affixed Though Testator Able to Write. 68. The Supreme Court has said : "It is contended that the Act of 1848 applies only to cases when the testator is unable to write his name by reason of want of education, and does not excuse the absence of the signature of one who is able to write. We discover nothing in the act sustaining this view. It makes no mention of insufficient education or physical inability. It declares that form of execution as sufficient in all cases. The manifest object of the act is to permit a will to be signed as any other written instrument may be signed. Hence in Van- druff et al. v. Rinehart (5 Casey, 232) it was held that if one is unable from palsy or other cause to make his signature or mark to his will, another person may stay his hand and aid him in so doing. If so done by the assistance of another, it is the testa- tor's own act. So in Cuzzen's Will (11 P. F. Smith, 196) the testator was paralyzed and said he was unable to write; but would put his mark to the will. He was raised in bed ; a pen put in his hand which was held by another while he made his mark. This was held to be a valid execution of a will."^® Evidence Necessary to Prove Mark. 69. A testatrix executed her will by making a mark; there 13 Greenough v. Greenough, ii Pa., 489. 14 Burford v. Burford, 29 Pa., 221. 15 Plate's Est, 148 Pa., 55. 16 Main v. Ryder, 4 W. N. C, 173. 3 34 LAW OF WILLS IN PENNSYLVANIA. were no subscribing witnesses, but the executor testified that he held the pen for her to make the mark; and another wit- ness testified that she saw the paper, which she identified as the will, lying before the testatrix, who said, "Biddy, there is my will and there is my mark." Held, that the will was suffi- ciently proved to by two witnesses ; that if the witness need not see the testator actually sign, but the acknowledgment of his signature is held equivalent to such signing, then by the same reasoning the admission and acknowledgment of a mark should be equally sufficient proof to comply with the statute.^'' Signing by Another by Express Direction. 70. When a testatrix requested another to sign a paper as her will and he complied by signing "E. N. for R. D.," at her request, it was held that this was a sufficient execution.^* When a person is able to sign his name to a will the writ- ing of his signature by another is a suspicious circumstance. The orphans' court directed an issue to try whether a man's name signed in such case to an alleged will was written by his direction and authority. Considering the doubts and risks in getting another person to sign for one who may be able to do so himself, it will be best for a testator to sign.^® "When Testator Cannot Sign from Extremity and Directs Another to Sign. 71. A decedent did not sign his name to an alleged will. It was held that to sustain a will, it must be proved by two wit- nesses, not only that he was prevented by the extremity of his last sickness from signing himself, but also that he has been pre- vented from the same cause from directing some one to sign his name to it for him in his presence.^" Where a testator has given complete directions for the draw- ing of his will, and which has accordingly been put in writing in his lifetime, and he is prevented by the extremity of his last sickness from either signing it himself or giving directions to 17 Dunn's Est., 14 Pa. C. C. R., 584. 18 Vernon v. Kirk, 30 Pa., 218. 19 Vosburg's Will, 9 Pa. C. C. R., 243. 20 Ruoff's Appeal, 26 Pa., 219. EXECUTION OF WILLS. 35 another to sign for him, the will will be good if otherwise es- tablished. Peter Showers being very ill, sent for a person to write his will, who, after writing it, placed it upon the lid of a band box before the said Peter to sign; but finding the lid yielded to the pressure of his arm, it was removed, and a stand was placed near his bed, and the testator was assisted out of his bed to a chair beside the stand, where he took up a pen and wrote on a loose piece of paper the letter "P" and then when about to put his pen to the alleged will, sank back in the chair and expired, without speaking or being able to speak and without signing in any way the alleged will. The will was sustained. It was said : "His power to answer 'yes' or 'no' when questions were put to him, is not inconsistent with the want of physical ability for these ceremonies. It is not nec- essary that a will should be signed by the testator, or by any person in his presence, and by his express direction, if he is prevented by the extremity of his last sickness from giving such direction to another, as well as from signing himself." ^^ Presumption of Continuing Inability to Sign Name. 72. The Supreme Court has said : "The principal question has regard to the onus. The evidence is clear that the testator was unable to write his name when the will was executed, that he rallied a little towards morning, and that he lived about a week ; but there was no evidence that he was in any part of the period able to sign with his own hand. The will was un- doubtedly executed in his last sickness, and in the absence of contradictory proof the presumption is that this inability con- tinued until his death."^^ Not Necessary to Have Subscribing Witnesses to Signattire. 73. In all cases wills must be proved by the oaths or affirma- tions of two or more competent witnesses. In the State of Pennsylvania, the law does not require that a will shall be signed by subscribing witnesses. A testator can merely sign his name without subscribing witnesses, and in such case his handwriting can be proved by two witnesses. A court put 21 Showers v. Showers, 27 Pa., 485. 22 Loomis V. Kellogg, 17 Pa., 60. 36 LAW OF WILLS IN PENNSYLVANIA. aside two subscribing witnesses and a will was proved by two other witnesses.23 j^ case a will should be signed by a mark it will be best to have subscribing witnesses with a form of at- testation accordingly. Testimony of Subscribing Witnesses. • 74. Proof of the handwriting of a deceased subscribing wit- ness to a will is not merely evidence that he attested the will, but is also proof of the sanity of the testator. In a will con- test where the contestants call the subscribing witness to the alleged will, they make him their witness and cannot impeach his credibility.^* If subscribing witnesses signed their names under the be- lief that the papers thus attested were not testamentary, they do not come within the category of witnesses impeaching the hon- esty of their own acts.^® Disability after Giving Instructions for a Will. 75. Where one having given instructions for a will, becomes incapable of understanding it, before the draft is prepared and submitted to him, and so continues until his death, the draft, though proved by two witnesses to correspond with the instruc- tions, cannot be admitted to probate.^^ In case there appears to be any danger of a person dying during the time between the giving instructions for a will and its preparation it seems to be the duty of counsel to write a will at once. The will thus prepared can be signed provisionally that it shall be replaced by a more carefully prepared will in case the testator shall be living and able to assent to it upon production. Propriety of Having Witnesses Who Can Be Procured to Prove. 76. In order to prove a will one of the first steps is to pro- cure the subscribing witnesses to attend before the register of 23 Irvin V. Deschamps, II W. N. C, 365, S. C. ; Ginder t-. Farnum, 10 Pa., 98. 24 Dickson's Est., 20 Pa. C. C. R., 152. 25 Cummin's Est., 20 Pa. C. C. R., 575. 26 Aurand v. Wilt, 9 Pa., 54. EXECUTION OF WILLS. 37 wills. It often occurs that strangers or those having no fixed residence are procured as witnesses and when they are needed their whereabouts cannot be discovered. No one may be found who knows them or of them or their handwriting. It is sug- gested that it may be best to have business men, householders, permanent residents or others who can be located, so that their testimony can be procured. The counsel who writes the will, his assistants, a justice of the peace, a magistrate, a notary ■ public, and the like could be procured. When witnesses sign it will be well for them to write their addresses to their names. Although only two witnesses are required in Pennsylvania to prove a will, there can be more than two subscribing witnesses, and it may be best to have three or more such witnesses, so that two living witnesses at any time out of the number can prove the will. CHAPTER VI. PROOF OF WILLS. SECTION 77. Caveat to prevent proof of will. 78. The office of the caveat. 79. Caveator to give security for costs. 80. Compelling the production of will for proof. 81. The register will perform his duty by merely issuing ci- tation. 82. Register of wills may issue commissions to examine witnesses. 83. 'When subscribing witnesses are dead or out of the reach of process. 84. Each witness must testify to all essentials of execution. 85. When witness has forgotten the signing. 86. Circumstances may supply the want of one witness. 87. A legatee may be a witness to a will. 88. Proof of foreign will in case of personal estate. 89. Proof of foreign wills in case of real estate in Pennsyl- vania. 90. Proof of a will for property out of the State. 91. Probate or refusal to probate will conclusive as to realty after three years. 92. Wills proved in another State or country. 38 SECTION 93. Proof of lost wills. 94. Nuncupative will .cannot be proved after six months un- less put in writing within six days. 94*. Probate of nuncupative wills not allowed until fourteen days after death. 95. Election not to contest by taking under the will. 96. An executor is not bound to defend his testator's will. 97. Presumption of competency. 98. Proof of undue influence. 99. Alleged fraud or undue in- fluence may be confined to a part of a will. 100. Right to an issue for a jury trial, loi. Parties to issue. 102. Refusing an issue by register. 103. Rule governing an award of issue d. V. n. 104. On trial the question as to capacity is for the jury. 105. How costs for the trial of an issue to be paid. 106. Appeal from the decision of the register of wills to com- mon pleas. 107. Security for costs in appeal to orphans' court. 108. All persons interested should be cited. PROOF OF WILLS. 39 log. Parties in interest are only iii. On appeal will and codicils those who would be affect- are considered as one in- ed. strument. no. Requisite for an appeal from 112. Proceedings on appeal from the register for undue in the register de novo. fluence. Caveat to Prevent Proof of Will. '^y. A caveat is a notice given to the register of wills by a party having an interest, not to permit a will to be proved, or not to grant letters of administration, until the party shall have been heard. In case there shall be no objection to the validity or proof of a will ; still there may be no executor named in the will, so that the register will have to appoint an administrator cmn testamento annexo. Parties in interest may know of a will, but may not know if the testator has appointed any ex- ecutor or whether an executor appointed is deceased or may renounce ; and as the register, upon the proof of the will, may appoint an administrator who may not have the right to act, or who may be an improper person, a caveat can be filed to pre- vent such appointment without notice. The Office of the Caveat. 78. The office of the caveat is to arrest the proceedings until the truth of the facts alleged as affecting the validity of the will can be determined to the benefit of all parties interested in the subject, and a caveat filed by each heir or other persons interested is unnecessary. If no caveat has been filed with the register before probate made, the remedy of a person desiring to contest the validity of the will is by an appeal from the de- cree of probate to the orphans' court.^ Caveator to Give Security for Costs. 79. A caveator, within ten days after the filing of a caveat, is required to enter security for costs as in case of an appeal to the orphans' court in admitting a will to probate; there be- ing the same provisions as to costs, suit on bond, etc., as in case of such appeal. There is a right to appeal tO' the orphans' court I Miller's Est., 166 Pa., 97. 40 LAW OF WILLS IN PENNSYLVANIA. from the register of wills as to the amount and sufficiency of security. In case of a failure to give the bond for costs in ten days the register can dismiss the caveat.^ Compelling the Production of Will for Proof. 80. It is provided "That registers having jurisdiction as aforesaid, shall, at the instance of any person interested, issue a citation to any person having the possession or control of a tes- tamentary writing, alleged to be the last will and testament of a decedent, requiring him to produce and deposit the same for probate, and if such person shall Conceal or withhold such writing during the space of fifteen days, after being personally served with a citation, issued in the manner and form afore- said, he shall be liable to an indictment as for a misdemeanor, or to an action for damages by the persons aggrieved." ^ Tlte Begister Will Perform His Duty by Merely Issuing Citation. 81. The register will perform his duty fully by merely issu- ing the citation. He has no power to try the question as to whether a will was made or whether the parties cited had it in their possession or control. It becomes the duty of the party to produce and deposit the same for probate, if he has the will in his possession or control. No hearing or trial before the register is contemplated by the act, and he is without power to enforce any decree he might make. The issuing and service of the citation are merely preliminary to and a groundwork for the remedies expressly provided by the statute, namely, in- dictment or action for damages.* Register of Wills IVCay Issue Commissions to Examine Witnesses. 82. On the application of any persons interested, every reg- ister shall have power to issue commissions to take the deposi- tions of witnesses in other counties or States, or foreign coun- tries, in all cases within his jurisdiction, upon interrogatories filed in his ofifice.° 2 Act June 6, 1887, Sects, i, 2, 3, 2 P. V. L. D., 4079, P. L., 359. 3 Act March 15, 1832, i P. & L. D., 1452, P. L., 133, Sect. 7. 4 Nichols' Est., 3 Pa. Super. Ct. Rep., 484. 5 Act March 15, 1832, i P. & L. D., 1453, P. L., 135, Sect. 9. PROOF OF WILLS. 4I When Subscribing Witnesses Are Dead or Out of Reach, of Process. 83. The handwriting of deceased subscribing witnesses or witnesses out of reach of process may be proved.® Proof of the handwriting of a deceased subscribing witness is not merely evidence that he attested the will, but it also is proof of the sanity of the testator. It is evidence of that as- serted fact because the principle of law is that no man would attest the will of any but a sane person of sound, disposing mind, memory and understanding. On such evidence, without more, a will must be admitted to probate.^* Each Witness Must Testify to all Essentials of Execution. 84. Each of two witnesses to a will, in order to establish its execution, must testify to all that the law requires.'^ When Witness Has Forgotten the Signing. 85. When a witness is within the jurisdiction of the court and otherwise competent, he must be called, although he has forgotten all about the transaction; a circumstance not at all uncommon. His recognition of his signature proves the in- strument in the first place.* If the memory of a witness be partially or wholly gone, the law presumes after proof of attes- tation, that everything else necessary to give the instrument validity existed.** Circumstances May Supply Want of One Witness. 86. Circumstances may supply the want of one witness when they go directly to the immediate act of disposition.® A Legatee May Be a Witness to a Will. 87. One who is both executor and beneficiary under a will, 6 Hays v. Harden, 6 Pa., 409. 6* Dickson's Est, 20 Pa. C. C. R., 152. 7 Mullen V. McKelvy, 5 Watts, 399. 8 McKee v. White, 50 Pa., 354. 8* Vernon v. Kjrk, 30 Pa., 218. 9 Jones V. Mutphy, 8 W. & S., 275. 42 LAW OF WILLS IN PENNSYLVANIA. is a competent subscribing witness, and may testify as to the execution of the will upon an issue of devisavit vel non}" Proof of Foreign Wills in Case of Personal Estate. 88. A will disposing of personal estate only, and invalid by the law of the testator's domicile in another State, is not en- titled to probate in the State of Pennsylvania for the purpose of passing title to after-acquired real estate.-'^ Proof of Foreign Wills in Case of Beal Estate in Pennsylvania. 89. A testator's real estate being situate in the State of Pennsylvania, his will is entitled to probate there; it being a muniment of the title. In order to dispose of real estate in that State it must be executed according to the laws thereof.^^ Proof of a Will for Property Out of the State. 90. If a testator should have his residence or domicile in an- other State or country, or shall own real estate there, it may be important to ascertain and comply with the laws thereof, re- lating to the execution and proof of will. Hubbell's Legal Directory, published annually, will show generally, what the laws of the different States require as to the number of wit- nesses required, etc. Probate or Refusal to Probate Will Be Conclusive as to Realty After Three Years. 91. "The probate, or the refusal of probate, by the register of the proper county, of any will, or any other paper purporting to be a will or codicil thereto, devising real estate, shall be conclusive as to such realty, unless within three years from the date of such probate or refusal of probate, those interested to controvert or sustain it shall, by caveat and action at law, duly pursued, contest the validity of such will as to such realty, or claim thereunder, by such action duly prosecuted to final judg- ment in favor of the plaintiff therein. "^^ 10 Patterson v. Shrader, 12 W. N. C, 429. 11 Price's Est., 169 Pa., 294. 12 Pepper's Est., 148 Pa., 5. 13 Act June 25, 1895, Sect, i, 3 P. & L. Dig., 259, P. L., 305. PROOF OF WILLS. 43 "The early Acts of Assembly of 1705 and 1832 gave to the register of wills jurisdiction of the probate of wills and testa- ments, of the granting of letters testamentary and of admin- istration. Under these acts our courts held that the probate of the register, in cases where the title of real estate was in- volved, was only prima facie evidence, and that of the weakest kind. Even a will found to be valid on a trial of an issue de- visavit vel non, could be attacked in a common law action of ejectment." .... "The act of April 22, 1856, was passed, and in its seventh section it is provided that 'the probate by the register of the proper county of any will de- vising real estate, shall be conclusive as to such realty unless within five (made three by the act of 1895, P. L., 305) years from the date of such probate those interested to controvert it shall by caveat and action at law duly pursued, contest the validity of such will as to such realty.' " Held that where an action of ejectment is brought more than three years after the probate of a will, no question which the register of wills had jurisdiction to pass upon when he entered the decree of pro- bate, can be inquired into at the trial of ejectment.-'* Wills Proved in Another State or Country. 92. "Copies of wills and testaments proved in any other State or country, according to the laws thereof, and duly au- thenticated, may be offered for probate, before any register having jurisdiction, and proceedings therein may be had, with the same effect, so far as respects the granting of letters testa- mentary, or of administration with the will annexed, as upon the originals, and if the executor or other person producing any such copy shall produce also therewith a copy of the record of the proceedings for the probate of the original thereof, and of letters testamentary, or other authority to administer, issued thereon, attested by the person having power to receive the probate of such original, in the place where it was proved, with the seal of the office, if there be one, annexed, together with the certificate of the chief judge or presiding magistrate of the State, country, county or district where such original was 14 Wettach v. Horn, 201 Pa., 201. 44 LAW OF WILLS IN PENNSYLVANIA. proved, that the same appears to have been duly proved, and to be of force, and that the attestation is in due form, such copies and proceedings shall be deemed sufficient proof, unless the contrary be shown, for the granting of letters testamentary or of administration, with the will annexed as the case may re- quire, without the production or examination of the witnesses attesting such will.^^ Proof of Lost Wills. 93. The contents of a will which has been lost, or which has been destroyed by the act of another than the testator, must be proved by at least two witnesses, and each witness must be able to testify to every fact which is essential to the establish- ment of the instrument as a valid will.^* When persons write their wills, they generally retain possession of them, and there is sometimes a difficulty of finding them after their decease. Sometimes they are lost or unintentionally destroyed. If a copy of the will should be compared with the original by sub- scribing witnesses, it could be used as evidence in case the original cannot be found, two witnesses, however, being re- quired to prove the copy. Some trust companies make it their business to take charge of wills but in such case the testator should be careful to leave a notice among his papers or to in- form the executor or some members of the family of the fact. ITuncupative Will Cannot Be Proved After Six Months Unless Put in Writing Within Six Days. 94. "No testimony shall be received to prove any nuncupa- tive will after six months elapsed from the speaking of the pre- tended testamentary words, unless the said testimony or the substance thereof, were committed to writing within six days after the making of such will." ^'' 15 Act March 15, 1832, 1 P. & L. Dig., 1454, P. L., 13s, Sect. 12. 16 Buchle's Will, 14 Pa. C. C. R., 99; Beyer's Appeal, 27 W. N. C 82, S. C. 17 Act March 15, 1832, i P. & L. D., 1457, P. L., 135, Sect. 11. PROOF OF WILLS. 45 Probate of Nuncupative Wills Not Allowed Until Fourteen Days After Death. 94*. "No nuncupative will shall be admitted to probate, nor shall letters testamentary thereon be issued, till fourteen days after the day of the death of the decedent be fully expired, nor shall any nuncupative will, at any time be admitted to probate, unless process have first issued to call in the widow, if any and such of his relations or next of kin as would be entitled to the administration of his estate, in case of intestacy, to contest the same, if they please." ^* Election Not to Contest by Taking Tinder the Will. 95. A devisee in a will, who is also the heir at law of the testator, will not be permitted to take under the will real estate situate in Pennsylvania, and at the same time to disaffirm the validity of a devise to other persons of real estate situate in the city of Washington, because the will was not authenticated by three competent subscribing witnesses as required in the Dis- trict of Columbia.^® An Executor Is Not Bound to Defend His Testator's Will. 96. An executor is not bound to defend his testator's will ; but if he undertakes to do so, it must be as the agent and in the interest of those benefited by the action. When an ex- ecutor becomes a party to an issue devisavit vel non, he must look to those who authorized him to engage therein and he can- not charge his expenses to the estate he represents, unless the latter is benefited by the proceeding.^" Presumption of Competency. 97. When a will duly executed is offered for probate, the law presumes competency in the testator ; but such presumption may be rebutted by showing, that the will was obtained by fraud and imposition practised on the testator, or by duress or undue influence; but where an alleged testator is shown by 18 Act March 15, 1832, Sect. 10, P. & L. Dig., 1456, P. L., 135. 19 Cumming's Est., 153 Pa., 397. 20 Yerkes' Appeal, 99 Pa., 401. 46 LAW OF WILLS IN PENNSYLVANIA. evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other causes, tending to pro- duce such weakness, though not sufficient to create testamen- tary incapacity ; and the person whose advice has been sought, and taken, receives a large benefit under the instrument pro- pounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the dis- position contained in it, and all the circumstances connected with the drawing of the will, and that the testator was labor- ing under no mistaken apprehension as to the value of his prop- erty, and the amount he was giving to his confidential ad- viser.^^ Proof of Undue Influence. 98. When the execution of a will has been proved, the law raises the presumption affirmatively that the testator knew the contents. Where fraud has been practised, or undue in- fluence charged and proved, affirmative proof of the knowl- edge of the contents of a paper set up as a will may be neces- sary, but not otherwise.^^ In order that declarations of a testator that are not made at the very time of the execution of the will, may be consid- ered at all upon an issue of undue influence, there must be proof of other facts and circumstances indicating circumventions or fraud in the procurement of the will.^^* Alleged Fraud or Undue Influence May Be Confined to a Part of a Will. 99. There may be a case where the alleged undue influence is applicable only to a single independent provision in a will, and that provision may fail, leaving the rest of the will to stand. Issues will be confined and awarded as to the parts which may be affected, whilst the rest of the will will stand as probated.^* 21 Cuthbertson's Appeal, 97 Pa., 163 ; Zimmerman v. Zimmerman, 23 Pa., 375- 22 Vernon v. Kirk, 30 Pa., 218 ; McKee v. White, 50 Pa., 354. 22* Dickson's Est, 2D Fa. C. C. R., 152. 23 Cutftbertson's Appeal, 97 Pa., 173 ; Griffin's Est., 23 Pa. C. C. R., 559. PROOF OF WILLS. 47 Bight to an Issue for a Jury Trial. I GO. Where an issue is asked for one who has a right to de- mand it "the issue is of right, under the 41st section of the Act of March 15, 1832, when the fact arising and in dispute is substantial and material to the inquiry, unless the whole evi- dence of the fact alleged be so doubtful and unsatisfactory that a verdict against the validity of the will should not be permit- ted to stand.2* Parties to Issue. loi. The established practice in Philadelphia county is to make the person who offers the will for probate the plaintiff in the action to be entered in the court of common pleas, and the parties opposing the defendants.^^ The question whether, in an issue devisavit, the proponents of the will shall be made plaintiffs, or the defendants, is within the discretion of the orphans' court, and the exercise of such discretion is not reviewable on appeal to the Supreme Court.^® Refusing an Issue by Begister. 102. When a register refuses an issue his duty ends, and the only remedy of the caveators is by an appeal.^^ Bule Governing an Award of Issue d. v. n. 103. If the testimony is such that after a fair and impartial trial, resulting in a verdict against the proponents of the al- leged will, the trial judge, after a careful review of all the tes- timony, would feel constrained to set aside the verdict as con- trary to the manifest weight of the evidence, it cannot be said that a dispute, within the meaning of the act, has arisen. On the other hand, if the state of the evidence is such that the judge would not feel constrained to set aside the verdict, the 24 Royer's Est., 6 Pa. Super., 401. 25 Carter's Est., 13 C. C. R., 401. 26 Est. of Palmer, deed., 132 Pa., 297. 27 Fow's Est., 147 Pa., 264. 48 LAW OF WILLS IN PENNSYLVANIA. dispute should be considered as substantial, and an issue should be directed.^* On Trial the Question as to Capacity is for lAe Jury. 104. Upon the trial of the issue devisavit vel non, on the question of mental capacity, the credibility of the witnesses, the conflict in the evidence, and the contrariety of the opinions expressed, are for the jury to consider. It is often proper for the court to express an opinion upon the facts, provided care is taken not to infringe the province of the jury.^^ How Costs for the Trial of an Issue to Be Paid. 105. Costs, including counsel fees for the trial of issues devisavit vel non cannot be charged to the estate, unless it be benefited thereby. It is the duty of a trustee of a spendthrift-trust created by will to sustain a will and the trustee is entitled to be reimbursed out of the estate for expenses incurred in sustaining the will on behalf of the trust.*" Appeal from the Decision of the Register of Wills to Common Fleas. 106. From a decision of the register of wills as to the pro- bate of a will an appeal may be made to the orphans' court. Security for Costs on Appeal to Orphans' Court. 107. In case of an appeal to the orphans' court as to a con- tested will security for costs should be entered. All Persons Interested Should Be Cited. 108. It is proper for a citation to describe the persons who are to be served with process, as all of the parties who are en- titled under the intestate laws to share in the estate should be cited. If other relatives shall be ascertained to exist, they may be made parties to the record in the trial court and sum- 28 Knauss' Appeal, 114 Pa., 10; Vogelsong's Est.; Douglass' Est., 162 Pa., 567. 29 Newhard v. Yundt, 132 Pa., 324. 30 Hoffman's Est., 19 Pa. Super., 70; Reimer's Est., 159 Pa., 212. PROOF OF WILLS. 49 moned to appear. An alias citation may be issued. If the record does not disclose the name of the several persons in- terested in the estate and the appellant does not supply the nec- essary information the application may be dismissed. If by any neglect an issue goes to trial and a verdict is taken in favor of the will by agreement, without the knowledge of one or more of the persons interested, the verdict is not binding on such persons, but will be set aside at his request or the omitted party will be allowed to take another appeal.^^ Parties in Interest Are Only Tliose Who Could Be AfEected. 109. There was an appeal from the decree of an orphans' court in refusing an issue in the estate of a testatrix. A per- son made a will and then two codicils. The contestants were the kindred of the testatrix. Their interest in the estate was neither enlarged nor diminished by either codicil and it was held that the inquiry concerned only the situation at the time the original paper was executed. It was held they were inter- ested parties, only as to the validity of the will. The bene- ficiaries under the codicils could contest but those not interested could not.^^ Requisites for an Appeal from the Register for Undue Influence. I ID. In case of an appeal for undue influence the facts, time, place and names of the parties by whom the influence was em- ployed should be stated under rule of the orphans' court of Philadelphia county.*® On Appeal Will and Codicils Are Considered as One Instrument. III. A will and its codicils constitute one complete instru- ment, and an appeal from the action of the register admitting a will to probate involves the consideration of the codicils also, and so that although the precept for the issue fails to mention the codicils it does not follow that the issue granted does not 31 Miller's Est., 166 Pa., 97; Griffin's Est., 23 Pa. C. C. R., 559; Atche- son's Est., 2S Pa. C. C. R., 255. 33 Wingert's Est., 199 Pa., 427. 33 Wright's Est., 27 W. N. C, 372. 4 50 LAW OF WILLS IN PENNSYLVANIA. include them as an integral part of the will, but the court will direct a separate issue as to each codicil.^* Proceedings on Appeal from the Register Are de Novo. 112. The proceedings oh an appeal from the register of wills, admitting a will to probate, are de novo, and the burthen is on the proponent to prove the execution of the paper which is offered before the register.^'' 34 Carter's Est., 13 Pa. C. C. R., 401. 35 Simcox's Est., 11 Pa. C. C. R., S4S, s. c, I Pa. Dist. Rep., 653, O. C. CHAPTER VII. REVOCATION AND REPUBLICATION OF WILLS. SECTION 113. Revocation of wills of real estate by the Act of 1833. 114. Revocation of vi^ills of per- sonal estate by Act of 1833. 115. Not necessary that oblitera- tion or physical destruction be complete. 116. There may be a partial revo- cation by lead pencil or cutting. 117. Interlineation not an oblit- eration. 118. Unsigned writing on margin not a revocation. 119. Destruction of will by an- other must be by express direction. 120. Presumption of destruction. 121. Evidence of an intent to can- cel. 122. Revocation may depend upon a contingency. SECTION 123. Effect of revoking a residu- ary devise. 124. The best way to revoke a will. 125. Revocation of will by subse- quent marriage and birth of issue. 126. Extent of revocation by mar- riage and birth of child. 127. Prevention of revocation in case of a birth of a child. 128. Revocation of single woman's will by marriage. 129. Act not to apply to bequests of personalty by non-resi- dents. 130. Definition of republication. 131. In Pennsylvania may be by parol. 132. When will republished speaks of the date of republica- tion. Revocation of WiUs of Real Estate by Act of 1833. 113. "No will in writing concerning any real estate shall be repealed, nor shall any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the same manner as is hereinbefore provided, or by burning, can- celling, or obliterating or destroying the same by the testator himself, or by some one in his presence, and by his express direction."^ I Act April 8, 1833, i P. & L. Dig., 1449, P. L., 249, Sect. 13. 51 52 LAW OF WILLS IN PENNSYLVANIA. Kevocation of Wills of Personal Estate by Act of 1833. 114. "No will in writing concerning any personal estate shall be repealed, nor shall any bequest or direction therein be altered, otherwise than as hereinbefore provided in the case of real estate, except by a nuncupative will, made under the circumstances aforesaid, and also committed to writing 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." ^ Not Necessary that Obliteration or Physical Destruction Be Complete. 115. It is not necessary that the destruction shall be com- plete. The testator may write the word "Cancelled" or erase his signature. Cancellation implies a preservation of the in- strument, but with something in it indicating that it ceases to be operative.* There May Be a Partial Revocation by Lead Pencil or Cutting. 116. Where a pen is drawn over part of the will only, leav- ing the signature untouched, a revocation is effected pro tanto, and the unobliterated portions remain in force. A will was found, after the testator's death, among some papers, in a locked drawer of a bureau standing in the room where he died. Shortly before he died, he handed to a relative a bunch of keys, one of which unlocked the drawer, with instructions to deliver them to his executor as soon as he was dead. The will was written and signed in ink. When found, certain of the bequests in it were cancelled by pencil drawn across and through them. This had been done after its execution, but when and in what circumstances no witness knew. It was held that there was a cancellation of the parts marked by pen- cil.* When a testator cuts out of his will a part of a line, leaving the signature intact, and the balance of the instrument entirely intelligible, such mutilation is not, prima facie, a revocation, 2 Act April 8, 1833, i P. & L. Dig., 1450, P. L., 249, Sect. 14. 3 Evans' Appeal, 58 Pa., 238. 4 Tomlinson's Est., 133 Pa., 245. REVOCATION AND RRPUBLICATION OF WILLS. 53 but in the nature of an erasure made subsequently to the exe- cution of the will, and does not furnish a sufficient reason for refusing to admit it to probate.^ Interlineation Not an Obliteration. 117. After the due execution of a will the testator altered certain legacies and the date by erasures and interlineations and acknowledged it so altered in the presence of two wit- nesses. It was held that there was no revocation of the will.^ ■Unsigned Writing on the Margin Not a Bevocation. 118. Writing the word "obsolete" on the margin of a will by a testator, but not signed by him, or any person for him, under the Act of 8th of April, 1833, ^'^^^ ^°t operate as a re- vocation of the will.'^ Destruction of Will by Another Must Be by Express Direction. 119. To make a cancellation, burning or obliteration of a will efficacious as a revocation, it must be done by the express direction of the testator; his subsequent ratification will not dispense with a previous command.* Presumption of Destruction. 120. Where a will has always been in the custody of the tes- tator and cannot be found after his death there is a presump- tion of destruction, or where a will is found with the testa- tor's name erased.® Evidence of an Intent to Cancel. 121. The conduct and declarations of the testator up to near the day of his death are evidence of an intent to destroy or not his will.^" 5 Ramsey's Est., 13 Pa. C. C. R., 135. 6 Dixon's Appeal, 55 Pa., 424. 7 Lewis V. Lewis, 2 W. & S., 455. 8 Clingan v. Mitcheltree, 31 Pa., 25. 9 Foster's Appeal, 87 Pa., 67; Church v. Robbarts, 2 Pa., no. ID Youndt V. Youndt, 3 Grant, 140. 54 LAW OF WILLS IN PENNSYLVANIA. Revocation May Depend Upon a Contingency. 122. A will was made with charitable bequests, and a sec- ond will was made varying such bequests by a codicil, and the testator provided, that in case he should die within thirty days, the first will should stand. He died within that time so that the second will did not take effect and it was held that the first will was valid.-'^ Effect of Revoking a Residuary Devise. 123. Where part of a residuary estate is revoked without a substitutionary gift such part will not go to the other de- visees and legatees. It will go under the intestate laws.^^ The Best Way to Revoke a Will. 124. The best way to revoke a will or any part or parts thereof is to write another will or codicil or other writing de- claring the same and to have it signed and executed like a will. In case a new will is made there can be inserted therein a declaration that all other and prior last wills and testaments and codicils are revoked. However it may be that a testator may conclude to revoke a will and not to write another and he may not want the will preserved. In such case he can burn, cancel, obliterate or destroy it himself, or another person can do so in his presence and by his express direction. In case a testator secretly destroys his will there may possibly be danger of some one endeavoring to prove its existence and contents, and that it has been lost. There may be witnesses to prove the destruction of the will but they may die or re- move to places unknown or may not be procured. It is sug- gested that in case a testator wishes to destroy his will and to let his estate be disposed of according to the intestate laws he could do so in the presence of witnesses and then write an- other will merely appointing an executor and declaring that he revokes all prior wills, testaments and codicils theretofore made by him. 11 Hamilton's Est, 74 Pa., 69. 12 Riley's Est., 20 Pa. C. C. R., 376, s. c, 6 Pa. Dis. R., 691, O. C Phila. REVOCATION AND REPUBLICATION OF WILLS. 55 Bevocation of Will by Subsequent Marriage and Birth of Issue. 125. When any person shall make his last will and testa- ment, and afterward shall marry or have a child or children not provided in such will, and die, leaving a widow and child, or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow, or child or chil- dren after-born, shall be deemed and construed to die intes- tate ; and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if he had actually died without any will.^' Extent of Bevocation by Marriage or Birth of Child. 126. A man's will executed before marriage is inoperative under the Act of April 8th, 1833, to the extent of the interest which she takes as widow under the intestate laws, and as against subsequently born children not provided for in it, to the extent of their interest under these laws.^* Prevention of Bevocation in Case of a Birth of a Child. 127. A codicil providing for a child born after the will prevents the will being revoked by the Act of April 8, 1833, Sect. 15." Bevocation of Single Woman's Will by Marriage. 128. "A will executed by a single woman shall be deemed revoked by her subsequent marriage, and shall not be re- vived by the death of her husband." ^' Act Not to Apply to Bequests of Personalty by Non-Besidents. 129. Nothing in this act contained shall be construed to ap- ply to the disposition of personal estate by a testator whose domicile is out of this Commonwealth." 13 Act April 8, 1833, P. & L. Dig., 1450, P. L., 249, Sect. 15. 14 Whitney's Est., 3 Pa. C. C. R., 498, affirmed 121 Pa., 2. 15 Armstrong's Est., 2 Pa. C. C. R., 166. 16 Act April 8, 1833, Sect. 16, i P. & L. Dig., 1451, P. L., 249, Sect. 16. 17 Act April 8, 1833, Sect. 17, i P. & L. Dig., 1451, P. L., 250. 56 LAW OF WILLS IN PENNSYLVANIA. Definition of Bepublication. 130. A republication of a will is the reviving of a will which has been revoked or superseded. In Pennsylvania May be by Parol. 131. In some of the American States a republication is re- quired to be done with the same formalities as required for the execution of wills. In Pennsylvania a will may be repub- lished by parol.^* Remarks. — If a testator should have real estate in another State, or have his domicile there, it will be well tO' have the re- publication made according to the laws of that State. In any case it will be best to have a republication by codicil and then there will be the certain evidence. When Will Republished Speaks of the Date of Bepublication. 132. When a testator republishes his will, the terms and words of the will are to be construed with regard to the prop- erty of which he is seized, and the persons named therein, at the date of the republication.*^ 18 Jones V. Hartley, 2 Wharton 103 ; Campbell v. Jamison, 8 Pa., 498. 19 Gilmore's Est., 154 Pa., 523. CHAPTER VIII. GIFTS. SECTION i,i3. Gifts mortis cattsa. 134. The subject of the gift. 135. The gift must not be of the whole estate. 136. Delivery. 137. Delivery may be made to one for another. 138. Delivery must be during a last sickness. 139. The extremity of sickness is not requisite. 140. Must be made in view of ap- proaching death. 141. Revocable by donor. 142. The gift takes effect pres- ently. 143. Proof necessary to prove a donatio causa mortis. SECTION 144. When assets not sufficient to pay debts. 145. When there is an intent to defeat the widow's right. 146. Gifts inter vivos. 147. Delivery of a gift inter vivos. 148. Delivery not requisite when impossible. 149. There may be a gift with a reservation. 150. No presumption of unfairness by a gift inter vivos. 151. Evidence relating to a gift. 152. Gifts by means of a declara- tion of trust. Gifts Mortis Causa. 133. Donatio mortis causa is a gift of a chattel made by a person in his last illness, subject to the implied conditions that if the donor recover or if the donee die first, the gift shall be void. The gift must be with the view of the donor's death and upon the condition to take effect only on the donor's death by his existing disorder or in his existing illness.^ The Subjects of the Gift. 134. The subjects of the gift must be personal property in possession or action. They may be made by the mere de- livery of the evidence. There is no difference in this respect between gifts causa mortis and gifts inter vivos. ^ 1 Gourley v. Linsenbigler, 51 Pa., 345. 2 Estate of Franklin T. Malone, 13 Phila. Rep., 313, O. C. Phila. 57 5° LAW OF WILLS IN PENNSYLVANIA. It is settled that a valid gift of non-negotiable securities may be made by delivery of them to the donee without assignment or endorsement in writing. This principle has been applied to notes, bonds, stocks and deposit certificates, and life insurance policies. Shares of stock are choses in action, and the certi- ficates evidence of them.^ However in case of a book of original entries — a bank book — an executory agreement, and the like, when the possess- ion of the document affords no presumption of ownership, something more is necessary than the manual delivery of the book or paper in order to make a valid gift."* The Gift Must Not be of the Whole Estate. 135. No mere gift, made in prospect of death, and profess- ing to pass all one's property to another to take effect after death, can be valid under the statutes of wills of Pennsylvania, no matter what delivery may have accompanied it.^ A gift of a particular chattel though it constitutes the prin- cipal part of the donor's property is a valid donatio causa mortis. In this case the court distinguished it from Headley V. Kirby and said : "In that case there was a variety of chattels — they were not specified by the donor — nothing more than a constructive delivery occurred — the language was evidently testamentary — as it referred expressly to all her property 'that it does not decide' that where a single chattel is the whole of a man's estate, or the 'principal part of his property,' it may not be given causa mortis." * Delivery. 136. Delivery is essential to constitute a valid donatio mor- tis causa. Such delivery may be made to a third person for the use of the donee and a delivery to the wife of the donor for the use of the donee is valid. The delivery may be made by 3 Commonwealth v. Crompton, 137 Pa., 138. 4 Walsh's Appeal, 122 Pa., 177. 5 McCarthy's Est., 16 Pa. C. C. R., 513, s. c, 4 Pa. Dis. R., 453; Head- ley V. Kirby, 18 Pa., 326. 6 Michener v. Dale, 23 Pa., 59. GIFTS. 59 the donor himself or by his order, if the thing given be capa- ble of such delivery. When things cannot be delivered, if the donor do what he can to transfer the possession to the donee, it will be sufficient. Thus the delivery of the key of a trunk in which the gift is contained will be sufficient. It is sufficient to give the donee the physical means of dominion over the gift. A plaintiff testified that she had called upon her brother who had been taken suddenly sick. That she talked to him and informed him the doctor had pronounced his case hope- less, and that his days were short. He told her where a key was and that she would find his valise under his bed which contained three bonds of $ioo each and that she should take them and keep them. She took them in his presence and by his direction. The bonds were not mentioned in his will. There was nothing in the case to doubt the testimony. The court of common pleas of Delaware county held that there was a dona- tio mortis causaJ Delivery Iffiay Be Made to One for Another. 137. Whether the delivery be made to the donee immedi- ately or to another for his use it is immaterial.® A person at sea, being seized with cholera, sent for the pur- ser, and in his presence, holding in his hand a bag of gold dust and some pieces of coin, requested a sailor in attendance to hand it to the purser, which was done. The latter in- quired as tO' what person he wished to leave his effects. To which the former replied his sister and brother residing in Philadelphia. The sick man died about six hours afterwards. Held that there was a donatio causa mortis.^ Delivery Must Be During^ a Last Sickness. 138. A soldier about to start for the army, handed to a friend twO' promissory notes, enclosed in an envelope ad- dressed to the plaintiff, and told him to deliver it to her, and if he never came back he wanted her to get the notes, saying, 7 Stewart v. Lindermuth, 4 Del. Co., 384. 8 Wells V. Tucker, 3 Binn., 366. 9 Michener v. Dale, 23 Pa., 59. 6o LAW OF WILLS IK PENNSYLVANIA that "he would rather she should have them than any other person." They were delivered to her two days afterwards. The donor was in good health at the time but died of disease in the army about four months after. Held that there was not a good donatio mortis ccmsa}" The Sxtremity of a Sickness is TSot Bequisite. 139. To constitute a good donatio mortis causa, it is not necessary that the donor should be in such extremity as is re- quisite to give effect to a nuncupative will.'^ IKEust Be Slade in View of Approaching Death. 140. A donatio causa mortis must be made in contempla- tion, expectation or apprehension of approaching death. A donor was in good health at the time of the gift but died of disease in the army about four months after. Held that there was not a good donatio mortis carusa}^ A gift of bonds to take effect at the death of the donor, which is not then impending nor in immediate contemplation, accompanied by delivery and possession of the bonds, consti- tutes neither a valid gift inter vivos nor a donatio mortis causa. Though there was a delivery of the manual possession of the bonds, the property was not to vest until the donor's death.^^ Revocable by Donor. 141. They have the similitude of legacies, i. e., they are revocable by the donor, and are ambulatory during life.^* The Gift Takes Effect Presently. 142. Although a gift causa mortis may be revoked during the lifetime of the donor, it cannot be done by will, as that does not go into effect until after death. The gift takes effect presently.^® 10 Gourley v. Linsenbigler, 51 Pa., 345. 11 Nicholas v. Adams, 2 Whar., 17. 12 Gourley v. Linsenbigler, 51 Pa., 345; Rhodes v. Childs, 64 Pa., 18. 13 Stockham's Est, 19 Pa. C. C. C, 369, O. C. Phila. 14 Rhodes v. Childs, 64 Pa., 18. 15 Parthimer's Est., i Pearson, 430. GIFTS. 6 1 Proof Necessary to Prove a Donatio Causa Mortis. 143. When proof of an alleged gift rests upon the declara- tions of the donor, those declarations must be unequivocal. This is emphatically true where the surroundings favor the , wrongful acquisition of the property. In all cases, whether of a gift inter vivos, or causa mortis, the proof must be not only of an intention to give, but an actual gift, perfected by delivery.^® When Assets Not Sufficient to Pay Bebts. 144. A donatio mortis causa is not good where there are not assets sufficient to pay debts, but if there are sufficient assets to pay debts the title passes to the donee without the intervention of the executor.^ '^ When There Is an Intent to Defeat the Widow's Bight. 145. It was held that a gift of the donor's whole estate, with intent to defeat the widow's right to a distributive share therein, is fraudulent and void. Even in the absence of fraud, an attempt to dispose of the donor's whole estate, so as to defeat the widow's interest therein, by donatio causa mortis, is inconsistent with the statute of wills; ^® but in Parthimer's Est., in the orphans' court of Dauphin county in 1869, it was held that a donee's claim is paramount to the widow's right.^^* Gifts Inter Vivos. 146. There may be what are known as gifts inter vivos, hav- ing nO' reference to the future, and which go into immediate and absolute effect. A mere intention or naked promise to give, without some act to pass the property, is not a gift. Delivery is essential. Without possession the title does not pass. Delivery of a Gift Inter Vivos. 147. Without a complete delivery during the lifetime of the 16 McCarthy's Est., 16 Pa. C. C. R., sis, s. c, 4 Pa. Dis. R., 4S3. 17 Stewart v. Lindermuth, 4 Del. Co., 384, C. P. ; Michener v. Dale, 23 Pa., 59. 18 Ruber's Est., 25 Pa. C. C. R., 370, C. P. 18* Parthimer's Est, i Pearson, 433, 16 Pitts. L. J., 235. 62 LAW OF WILLS IN PENNSYLVANIA. donor there can be no valid gift inter vivos. Intention cannot supply it ; words cannot supply it ; acting cannot supply it ; it is an indispensable requisite, without which the gift fails re- gardless of consequence. If the gift inter vivos be delivered to a third person for the donee, with authority to deliver it to the latter, then until the authority is executed and the article delivered such depositary is the agent of the donor and the latter may revoke the gift and reclaim the property. If the depositary is the agent of the donor, the death of the latter re- vokes the agency and no delivery thereafter is valid.^* Delivery Not Requisite Where Impossible. 148. When things cannot be delivered the donor should do what he can to show that he has parted with the ownership and control.^" There May Be a Gift with a Reservation. 149. A person gave to another the principal of a mortgage debt and delivered the bond and mortgage securing the debt, and it was held that the gift was not invalid by the fact that the donor reserved the interest during her lifetime.^^ No Presumption of Unfairness by a Gift Inter Vivos. 150. If there is no evidence which tends to show that the donor was incompetent to make a gift, or which raises a pre- sumption of fraud or undue influence on the part of the donee, the capacity of the donor and the fairness of the transaction will be presumed, unless the relation of or, between the par- ties is such that the policy of the law casts upon the donee the burthen of showing that the gift was the voluntary and in- telligent act of the donor.^^ 19 Clapper v. Frederick, 199 Pa., 609. 20 Lewis' Est., 139 Pa., 640. 21 Funston v. Twining, 202 Pa., 88. 22 Wendt's Est, 14 Super., 644; Yeakel v. McAtee, 156 Pa., 600. GIFTS. 63 Evidence Belating to a Gift. 151. After the decease of an alleged donor the transaction should be established by clear and satisfactory evidence.^^ In an action by a mother against the estate of a daughter to rescind a gift made by the plaintiff to her daughter, it was held that the plaintiff was not a competent witness under the Act of May 23, 1887, P. L., 158.2* In case of a gift it is suggested that it will be well to have at least two witnesses exclusive of the donee to show and prove a gift. Gifts by KeaiLS of a Declaration of Trust. 152. The owner of personal property may impose upon it a valid trust, either by a declaration that he holds the property in trust or by a transfer of the legal title to a third party upon specified trusts. If a person makes himself trustee, no transfer of the subject-matter of the trust is necessary.^^ 23 Fross and Loom's Appeal, los Pa., 258. 24 Yeakel v. McAtee, 156 Pa., 600. 25 Dickerson's Est, 115 Pa., 198. CHAPTER IX. PRELIMINARY PARTS OF WILLS. SECTION SECTION 153. Formal commencement of 159. Provisions for masses. wills. 160. Directions as to the payment 154. Provisions as to funeral ex- of debts of testator. penses. 161. Exoneration of personal es- 155. Provisions as to burial lots. tate from the pa3TTient of 156. Provisions for burial lots a debts. charitable use. 162. Lien of debts by a charge to 157. A right to cemetery lot may pay them. be an interest in real estate. 162*. Liability to pay mortgage 157*. Right to a burial lot an in- debts of testator, corporeal hereditament. 158. Provisions for monuments and tombstones. rormal Coamiencement of Wills. 153. It is usual to have a formal commencement of a will, but that is not necessary. Generally it may be best to use a form as there is a possibility of its being of some use. One of the usual forms is as follows : I, A B, of ,being of sound and disposing mind, memory and understanding do hereby make my last will and testament, hereby revoking all other wills and testaments by me at any time heretofore made. It may be well, for instance, to give the name in full, as the testator may hap- pen to sign by initials, by a first name or according to some foreign language. The giving of the residence and occupation can be used to identify the testator. The statement of residence may develop the fact that the testator is domiciled in some other State or country and may lead to a distribution of personal property according to the law of the domicile, and questions as to the proof of the will and administration may arise. The declaration of the testator's mental capacity may possibly, in some cases, lead a testator to consider if such is the fact and to 64 PRELIMINARY PARTS OF WILLS. 6$ refrain from making a will or to do so with care. The declara- tion that a man makes a last will and testament may sometimes be of importance, as there may be a question whether a person intends to make a will or a deed or some other document. The declaration that all other and prior last wills and testaments are revoked may be useful in conclusively establishing such revocation. The clause as to revocation may include any prior codicils though codicils may be considered as a part of a will. When questions arise as to whether a testator intended to dis- pose of his whole estate a declaration in the will to that effect will be regarded. Provisions as to X'uneral Expenses. 154. The commencement of a will is usually followed by a declaration of the testator, that funeral expenses shall be paid. This clause is not necessary because the law will require such expenses to be paid. However there may be some special direc- tions as to their amount and payment. If any such special directions should be made it will become important that an ex- ecutor should know of them immediately after the decease of the testator so that he shall act accordingly. If no one should know of them until after the funeral they will be of no effect. The executor, a member of the family, or other person, can be informed by the testator of such a provision in the will or be directed to open it and look at it immediately after his decease, or he can leave a note which can be readily found stating who has been appointed executor and containing a copy of the pro- vision. Sometimes great extravagance occurs as to funeral ex- penses when an estate is small and needed for the support of relatives or dependents. Provisions as to Burial Lots. 155. A testator may own a burial lot in a cemetery. He may have the right of directing as to what bodies may be buried and if so he can exercise such right. If the rules of the cemetery company require any future expenditures for keeping the lot in order or any expense to be paid by the owner a testator can provide for the payment of such expense. A testator may de- sire that a burial lot shall be purchased by his executor and if s 66 LAW OF WILLS IN PENNSYLVANIA. SO he can give directions accordingly, and it will be well to des- ignate what bodies may be buried therein. A burial lot may have to be cared for perpetually. Individual trustees, accord- ing to the course of nature, will die and it is suggested that a fund could be given to a trust company or to the cemetery company which may exist perpetually, in trust to expend the net income in keeping the lot, etc. in good order and repair forever. The compensation of the trustee should be fixed above the usual rate for collecting and paying income, so as to properly compensate for the trouble. Provisions for Burial Lots a Charitable Use. 1 56. The law provides that "no disposition of property here- after made for the maintenance or care of any cemetery, church yard or other place for the burial of the dead, or any portion thereof or grave therein or other erections on or about the same shall fail by reason of such disposition having been made in perpetuity, but such disposition shall be held to be made for a charitable use." ^ S/ight to a Cemetery Lot Hay Be an Interest in B«al Estate. 157. A deed for lots in Woodlands Cemetery was made to a decedent "his heirs at common law and assigns" with "the exclusive and entire right of interment or sepulture only" and upon the condition that no re-sale or transfer of the lots or right of interment should be made. It was held that there was a grant of real estate.^ Bight to a Burial Lot an Incorporeal Hereditament. 157*. A grant of the exclusive right of interment in certain burial lots, subject to the regulations of the cemetery company, conveys no such interest in the land as will support an action of ejectment. There will be a grant of license or privilege or of an incorporeal hereditament.^ I Act of May 26, 1891, P. L., 119; Tierney's Est., 13 Pa. C. C. R., 446, s. c, 2 Pa. Dis., 524. 2 Holbrook's Est., i Pa. Dis, R., 259, 3 Hancock v. McAvoy, 151 Pa., 460, PRELIMINARY PARTS OF WILLS. 67 Provisions for ^Mionuments and Tombstones. 1 58. If a testator should desire to have a monument or tomb- stones and the expenses therefor should be above the ordinary- amount, the executor can be required to expend a certain amount for the purpose, or he or his successor can be directed to expend such amounts for the purpose as he may deem proper. A plan for a monument can be prepared for the testator himself and referred to in his will. Directions can be given as to what shall be placed on the monument. Provisions for Masses. 1 59. Testators, being members of the Catholic church, some- times provide for masses. If money is given with directions that it shall be expended, and no time when it is to be spent is mentioned in the will, it is presumed that a testator means at once, or within a reasonable time after his death. If masses are to be said at a funeral, and to continue until the fund ap- propriated for the purpose be exhausted, there may be no vio- lation of the law against perpetuities but if the income is to be perpetually used in purchasing masses it may be otherwise.^ In providing for masses the amounts, times and manner of expenditure had better be specified and a perpetuity should be avoided. Direction as to Payment of Debts of Testator. 160. The obligations of a testator to pay debts, not by sealed instruments, or judgments, are generally outlawed or the recovery thereof barred by the act of limitation of actions. A testator's real estate will be subject to the lien of his debts not of record for two years after his decease so that such real estate can be sold by order of the orphans' court for the pay- ment thereof if the personal estate should be insufficient for the payment. The law provides that an executor may be re- quired to file his account after one year from the death of the testator and upon filing such account the same is audited and settled and distribution of the balance remaining after the pay- ment of debts is ordered. Upon such distribution being made 4 Tierney's Est, 13 Pa. C. C. R., 446, S. C, 2 Pa. Dis., 524. 68 LAW OF WILLS IN PENNSYLVANIA. the property distributed will be free from the claims of creditors whose claims were not presented at the audit. The direction in wills to pay debts is not necessary. The law requires them to be paid. In case of charges and trusts to pay debts the lien thereof may possibly be barred by law notwith- standing. However what is said in Oliver's Appeal it seems that there may be a trust to pay debts of indefinite duration.® Exoneration of Personal Estate from the Payment of Debts. i6i. A testator may exonerate his personal estate from payment of debts and funeral expenses, and throw the burthen upon his real estate; but the intention to do so must be clear and free from reasonable doubt.^ Lien of Debts by a Charge to Pay Them. 162. A devise and bequest of real and personal property was made to a son, the testator having ordered "for which bequest I order that he pay my debts, funeral expenses, and the charges of settling my estate." It was held that a charge was created on the real estate in the hands of the devisee rendering the lien of the debts indefinite, but the Supreme Court held that the lien of debts would expire then in five years under the law limit- ing the lien of debts against a decedent's estate.'' Liability to Pay Mortgage Debts of Testator. 162*. A testator may have mortgaged his land before or after the making of his will and devised such land. As usual he may have given with the mortgage his bond and warrant without any restriction confining the recovery of the judgment on the bond to mortgaged premises. In such case the devisee will have the right to have the mortgage debt paid from the personal property of the testator.^ To avoid such result the will can provide, if so intended, that the devisee must alone as- sume and pay the mortgage debt and not look to the testator's 5 Oliver's Appeal, loi Pa., 299. 6 Armstrong's Est., 26 Pa. C. C. R., 5. 7 Silverthorn's Est., 2 Pa. C. C. R., 393, O. C, 1887, affirmed 9 Cent., 782. 8 Lenning's Appeal, 52 Pa., 135. PRELIMINARY PARTS OF WILLS. 69 estate for payment. In case a testator has purchased real es- tate subject to a mortgage made by the vendor and has ex- pressly assumed in the deed to him to pay the mortgage, and devises such real estate, it may be that the devisee can require that such mortgage be paid from the personal estate of the testator. To avoid such results the above suggestion may apply to that case. In case there is no assumption of payment of the testator to pay the mortgage made by the grantor but the deed shall state that the real estate is conveyed to the pur- chaser under and subject to the payment of the mortgage such a statement v^rill amount to an agreement to indemnify the grantor in case he is made to pay the mortgage debt. In such case the will can provide that the devisee shall assume and pay all liability under such indemnity. When testators devise real estate it will be well to provide in what way the mortgages are to be assumed and paid. They can direct that devisees shall or shall not pay or be charged with the payment of mortgages or that mortgages shall be paid from their personal estates. CHAPTER X. LEGACIES. 163. Specific legacies. 164. Money may be the subject of specific bequest. 165. Bequest of money due by legatee specific. 166. Definition of articles of per- sonal use. 167. When there is a specific leg- acy of stock. 168. A bequest of the amount of the bonds of a company not specific. 169. When bequests of proceeds of real estate specific. 170. Gift of money not specific when not set apart. 171. Specific bequest of money in bank. 172. A legatee of a specific be- quest entitled to possession upon the death of testator. 173. Specific legacies annulled by a sale by testator of the ar- ticle bequeathed. 174. Interest on specific legacies. 175. Pecuniary legacies. 176. Legacy to a creditor. 177. Legacy to a debtor. 178. Abatement of legacies. 179. A legacy to a widow pre- ferred to other legacies. 180. Demonstrative legacy. 181. Distinction between a dem- onstrative and specific leg- acy as to ademption. 70 SECTION 182. Liability of demonstrative legacy to abate. 183. When legacies with expres- sion as to use and applica- tion absolute. 184. Where a legacy is vested or contingent. 185. In case of doubt, the law favors vesting. 186. Legacies to children to be paid when of age vested. 187. When gifts to grandchildren after a life estate vested. 188. Protection of contingent in- terests. 189. The assignment of a contin- gent interest. 190. Legacies with conditions. 191. Bequests over in case of death in lifetime of testa- tor. 192. Bequest of personal property to widow for life without limitation over. 193. Legacies charged on land. 194. Charging residuary real es- tate depending on intent. 195. Payments to be made by de- visees as a condition in- dicative of a charge. 196. The personal estate is the primary fund for the pay- ment of legacies. 197. The orphans' court can com- pel payment of charges. LEGACIES. 71 SECTION 198. Devisees may pay legacies charged into court. 199. Property may be set apart for payment of legacies charged. 200. Legacy by will and codicil to same legatee indepen- dent. 201. The time of payment of leg- acies. 202. Interest on legacies. 202*. Interest on annual payments. 203. Interest on specific sum be- queathed in trust. 204. Apportionment of periodical payments. 205. Apportionment of annual sums. 206. Wills for charitable and re- ligious uses to be made one month before death. 207. Definition of charities. 208. Effect of failure of charit- able bequests. 209. Religious and charitable gifts preserved from failure of objects and other events. 210. Legatees of contingent inter- ests may have account and security. 211. Advancements. 211*. Conversion of debts into' ad- vancements. 212. Liability to advancements when legatees taking by representation. 213. Annuities. 214. Prevention of devises and legacies to children and is- sue from lapsing. 215. Prevention of devises and legacies to brothers and sisters from lapsing. 216. Lapsed devises to be included in residue. 217. Where a lapsed legacy falls into the residue. 218. Legatee for life or limited period to give security to protect those in remainder. 219. Attachment of legacies. 219*. When "issue" word of pur- chase in case of personalty. 220. A legacy to a class without individuating members. 220*. Effect of absolute gift pay- able at discretion of trustee. 221. Absolute gift followed by qualifying trust. 221*. Accumulation of income to carry out trust. 222. When the word money may include bonds. 222*. When a legacy to a child abates pro rata with other legacies. 223. When gift of the income of fund takes effect from death of testator. 223* No right of residuary legatee to income before vesting. 224. Residuary legatee can only take what remains after debts and general legacies are paid. 224*. Interest on legacy after death of prior taker com- mences at that time. 225. A lapsed share of the resi- due goes to the next of kin. 225*. Bequest of maintenance of son. 226. Bequest for a particular pur- pose. 226.* Coupons immature at death of testator pass with bequest of bond. 227. Legacy given on a condition subsequent vests immediately 227*. Vested interests after succes- sive life estates. 228. Gift over in default of the ex- ercise of a power of ap- pointment. 72 LAW OF WILLS IN PENNSYLVANIA. SECTION 228. Gift for life with power of consumption. 229. Disinheriting heirs. 230. Legacies to adopted children will lapse. 231. Specific legacies not liable to abate to pay costs of admin- istration and funeral ex- penses. 232. Lapse of a legacy contained in a residuary clause. SECTIOtf 233. When legacy payable at dis- cretion of executor payable at his death. 234. Legatee's bond required as re- mainderman. 235. Distribution to legatee dying intestate in another State, 236. When estate vested in chil- dren who shall be then liv- ing. Specific Legacies. 163. A specific legacy is the bequest of a particular thing, as of a horse, a piece of plate, a piece of furniture, a particular in- vestment or security for money. There may be a number of things bequeathed together, as all the furniture in a particular place, all the fixtures and machinery of a mill, but a bequest of all the testator's personal property is not specific. money May Be the Subject of a Specific Bequest. 164. Money may be the subject of a specific bequest, the test being that it is money separated from the testator's other money and from his general personal estate and described in that condition, so that the intention is clear to give the identi- cal and particular money and not a sum of like amount from the testator's money generally. Thus all the money in a bag, all the money in a purse, or all the money in a bank would be a specific legacy.-' Bequest of Money Due by Legatee Specific. 165. A bequest to a legatee of any amount he may owe the testator on bond and mortgage or note is a specific legacy.'* Definition of "Articles of Personal Use." 166. A testator directed that his widow should have "all his clothing, household and kitchen furniture, linen, china, plate, I Fow's Est., 30 W. N. C, 418. I* Jervis V. Ferris, 23 Pa. C. C. R., 142; Souder's Est, 15 Pa. C. C. R., 28s, affirmed in 169 Pa., 239. LEGACIES. 73 plated ware, jewelry, pictures, engravings, books, bric-a-brac and articles of personal use and ornament." It was held that the words "articles of personal use and ornament" did not in- clude a sailing yacht owned by the testator at the time of his death.2 When There Is a Specific Legacy of Stock. 167. There were bequests of a certain number of shares of stock of insurance companies vfith a direction to transfer them to the legatees and it was held that the legacies were gen- eral. Judge Penrose, in the opinion, said : "To be specific, in the technical sense, a legacy must be of something existing in specie, separated from his general estate, and so given to the legatee. It is liable to be adeemed by a different disposition of the subject in the testator's lifetime, but it carries with it all income accruing after his death, and is entitled to priority over general legacies in case of insufficiency of assets. For these reasons, and because of the presumption of equality, a gift will be regarded as general unless all the requisites of a specific legacy are manifest. A legacy of stock, even though the num- ber of shares is an odd one corresponding exactly to the num- ber owned by the testator, and though the stock itself is not generally found in the market, is not specific." Lord Eldon said : "I have no doubt in private that directing a transfer of stock he means to give what he has ; but there is no case decid- ing that it is specific, without something marking the specific thing, the very corpus; without describing it as standing in his name or by the expression of 'my stock.' " * Stock or government annuities or shares in public companies may be specifically bequeathed; but in order to make the be- quests specific, the intention that they should be so, must be clear, otherwise the bequests will be general. The word "my" preceding the words "stock," "annuities" or "shares" has fre- quently been adjudged sufficient to render the legacy specific. If, therefore, I were to bequeath to B' my stock, suppose i,ooof, in that of the India Company, or i,ooof, in my stock, "or part of my stock" or "all my shares 2 Ballentine's Appeal, 43 W. N. C, 62. 3 Yerkes' Est., 22 Pa. C. C. R., 263, s. c, 8 Pa. Dis. R., 83. 74 LAW OF WILLS IN PENNSYLVANIA. in the Nottingham Canal Navigation" the legacy would be specific. The bequest of a testator's right, title and interest and property in thirty shares in the bank of the United States of America is a general and not a specific legacy.* A legacy of "fifteen shares of 'second preferred' C. V. R. R. stock is a general legacy. The fact that the testator owned fifteen shares will not make the legacy specific." There was a bequest of "one thousand dollars of the United States six per cent, stock of the year 1812, standing in my name in the loan-office, Penn'a, as per certificate No. 269." It was held that there was a specific legacy. That it was not a bequest of $1,000, payable out of stock held by him. It was the corpus of the stock.® There was a bequest to an executor as follows : "I give and bequeath all my two hundred and fifty shares of capital stock which I hold in the Union Bank of Pennsylvania together with such interest, etc." It was given to the executor in trust for two grandsons, to be transferred and paid unto them when they respectively arrived at full age, or their legal representa- tives. It was held that there was a specific legacy of the stock, which was extinguished by a sale of the stock in the life- time of the testator. That the words "which I hold" individuate the stock as much as by the words "standing in my name, or all the stock which I have in the three per cents." That the word "my" prefixed to the word "annuities" or stock, is sufficient to make a legacy specific, though the mere possession of such "annuities" or stock without words of reference to fix its iden- tity as the subject of the bequest, has some show of it.'^ A testator bequeathed "ten shares of Germantown and Nor- ristown Railroad stock." It was held that there was not a specific legacy of the stock. The bequest was of shares simply. There was not a bequest of "my stock" or "stock belonging to me," nor were there words showing present ownership, or indi- cating "identity" in any manner.^ 4 Roper on Legacies, p. 204 and note. 5 Sponsler's Appeal, 107 Pa., 95. 6 Ludlam's Est., 13 Pa., 187. 7 Blackstone v. Blackstone, 3 Watts, 335. 8 Eckfeldt's Est., 7 W. N. C, 19. LEGACIES. 75 A bequest of the "interest on $15,000 of such stock as I possess" is not a devise of so much stock but the legatee is entitled to interest on $15,000 of the testator's Pennsylvania six per cent, stock at its par value.* A testator willed as follows : "And the income of my Harris- burg Gas stock for six years after my death I give and be- queath to James P. Johnson, and after that period I give and bequeath the said Gas stock to the extent of six thousand dol- lars (6,000) to be equally divided among the said four chil- dren of the said James P. Johnson share and share alike, and the balance to the general missionary fund of the United Pres- byterian Church." It was held that the testator intended to give gas stock specifically as such to the amount of six thou- sand dollars measured by its par value, and that he did not intend to give six thousand dollars in money. •"' The rule that the gift of the income is a gift of the fund it- self, is not a strong one, and is a mere implication which will readily yield to a different intent. The gift of the income of certain bank stock in a will, was held to bestow a limited and not an absolute estate.^"* A Bequest of an Amount of the Bonds of a Company Not Specific. 168. A legacy of $48,000 of Pennsylvania Canal Co. 6's was not specific. To be specific in the technical sense of the term a legacy must be of something belonging in specie to the testator in his lifetime, separated by him from his general es- tate and so given to the legatee. It was said in the case cited that the existing ownership must be shown by the will it- self .^ 1 Testators in giving specific legacies of bonds, stock, mortgages, etc., it will be well to give numbers of certificates, dates, etc., and to certainly identify them as far as possible. They might be placed and kept in a separate envelope with memorandums made and kept on the back with a writing signed by the testator, stating, for instance, the within securities 9 Hofif's Appeal, 24 Pa., 200. 10 Johnson's Est., 170 Pa., 177- 10* David McKee's Est., 17 Pa. C. C. R., 548. 11 Cummings's Est., 12 Pa. C. C. R., 45. 76 LAW OF WILLS IN PENNSYLVANIA. I have bequeathed to A B, my son, by my will, and the will could refer to such memorandums. When Bequests of Proceeds of Sale of Ileal Estate Specific. 169. A direction in a will to the executor to sell specified real estate and hold the proceeds in trust until the beneficiaries named by the testator attain respectively twenty-one years of age, and then to pay each of them a given sum is a specific legacy. It was said that if the entire proceeds of sale had been given to the granddaughters it would not have been questioned that the gift was specific ; it is not easy to see why it was not so because what is given is, or may be, only a part.^^ Gift of Money Not Specific When Not Set Apart. 170. A will provided that at the termination of a trust "5000, part of said sum of $12,000 shall go to Charles, and the balance of the said sum of $12,000, to- wit, the sum of $7,000, shall go to the other of the children." It was held that Charles' legacy was not a specific one. That the money was not set apart or ascertained during the lifetime of the testatrix/'^ A bequest of cash may pass by the words "other investment" when that appears to be the intention.^* Specific Bequests of Money in Bank. 171. There was a bequest "of all moneys in bank or on hand at the time of my death." The court said : Strictly speaking, the balance to the credit of a depositor in bank is not "money." It is a chose in action, a liability of the bank to the depositor. When it is clear from the will that the intention of the testator was to pass a deposit in bank by the term "money," that term has been held to cover such deposit, such a legacy will pass money in the hands of an agent. Under a bequest of "all money," that the testator die possessed of, the legatee is entitled to the cash — using the term in a popular sense — which at the 12 Devine's Est., 25 Pa. C. C. R., 260. 13 Crawford's Est., 24 Pa. C. C. R., 364, s. c, 9 Pa. Dis., 378, O. C. Phila. 14 Pearson's Est., 10 Pa. Dis., 189, O. C. Phila. LEGACIES. "J"] time of his death, the testator had in his possession or de- posited in bank. The term "money" in a will may be construed cash, or may stand for the whole of the personal estate, and it is to be received in one or the other sense as will best efifectuate the general intention of the testator deduced from every part of his will.^® A Legatee of a Specific Bequest Entitled to Possession Upon Death of Testator. 172. It was held by the orphans' court of Huntingdon county that a bequest of certain particularly described notes by testatrix was a specific bequest, and that the legatee was entitled to their possession immediately upon the death of the testatrix, unless they be needed to satisfy debts.^® Specific Legacies Annulled by a Sale, Etc., of the Article Bequeathed. 173. Specific legacies are revoked by the sale, exchange or payment of the thing bequeathed in the testator's lifetime. For instance, the testator may change a gold chain for a cup. Stocks or bonds bequeathed may be sold and other securities purchased, or the proceeds of sale may be diverted for other purposes. In making changes a testator can by a will or codicil give the new acquisitions in lieu of those parted with, or a will can provide in case money investments shall be sold jr paid off their value at the time of testator's conversation fixed by the executor in his discretion shall be paid to a legatee in lieu of the thing converted. In case a testator should have a large amount of stocks, bonds, etc., and should make his will specifically bequeathing the same he may afterwards make many changes or many of them may be paid off and it may be very difficult to keep changing the will under such circumstances. Perhaps it may be best to give pecuniary legacies with a direc- tion to the executor or his successor to distribute and transfer any bonds, stocks, etc. in payment of such legacies to legatetjs in lieu of cash at the appraised value according to a special appraisement of the securities by experts appointed by the ex- ecutor made at or about the time of distribution of the estate. 15 Wilkinson's Est., 192 Pa., 127. 16 Robinson's Est., 24 Pa. C. C. R., 588. 78 LAW OF WILLS IN PENNSYLVANIA. Interest on Specific Legacies. 174. Interest on notes specifically bequeathed pass with the principal unless expressly reserved and a legatee is entitled to the interest accruing after the death of the testatrix.*^ Pecuniary Iiegacies. 175. Pecuniary legacies are bequests of money. The per- sonal property is to be depended upon for payment. In case of a deficiency they abate pro rata, the widow being preferred. Unless charged on real estate there will be no claim for payment therefrom. A Legacy to a Creditor. 176. A legacy to a creditor, which is equal to or greater than his debt, and not contingent or uncertain, is presumed to be a satisfaction of the debt, but the courts will lay hold of slight circumstances, to get rid of the rule as it is not founded in rea- son or equity.-'* Legacy to a Debtor. 177. A legacy to a debtor is not presumed to be a discharge of the debt ; but it may be shown to have been so intended, by extrinsic proof. The debt may be set off by the executor against the legacy.-'® Abatement of Legacies. 178. In case there should not be sufficient personal prop- erty, exclusive of property specifically bequeathed, to pay pe- cuniary legacies they will have to be paid pro rata. To suffer such a result may be contrary to what would be the desire of a testator. There may be legacies to a wife, children or other near relatives and naturally a testator would desire them to be paid in full. It will be in the power of a testator to fix any priority of payment of legacies if it should be doubtful if they will all be paid in full.^" 17 Robinson's Est., 24 Pa. C. C. R., 588. 18 Byrne v. Byrne, 3 S. & R., 54; Horner v. McGaughy, 62 Pa., 189; Wesco's Appeal, 52 Pa., 195. 19 Zeigler v. Eckert, 6 Pa., 13; Strong v. Bass, 35 Pa., 333. 20 McKnighon v. Gas Co., 140 Pa., 185. LEGACIES. 79 A Legacy to a Widow Preferred to Other Legacies. 179. A widow takes what is given her in Ueu of dower and statutory part of her husband's estate and therefore must be re- garded as a purchaser. Where an estate is insufificient to pay all legacies, a legacy to the testator's widow will not abate with the other legacies.^^ Demonstrative Legacy. 180. 'A demonstrative legacy is always pecuniary, differing, however, from an ordinary legacy in being referred to a par- ticular fund or source of payment. They are so far general, that if the particular fund be called in or fail, the legatees will be permitted to receive their legacies out of the general assets ; yet so far specific as not to be subject to abatement, with gen- eral legacies, on a deficiency of assets. They are thus specific m one sense, and pecuniary in another ; specific, as given out of a particular fund, and not out of the estate at large ; pecuniary, as consisting only of definite sums of money, and not amount- ing to a gift of the fund itself, or any aliquot part of it, the mention of the fund being considered rather by way of demon- stration than of condition — rather as showing how or by what means the legacy may be paid, than whether it shall be paid at all. For example, a bequest of io£, which J. S. owes to the testator ; when in truth J. S. does not owe any such money, the gift fails; but if he gives lof, and wills that the same be paid out of the money he has in a certain place, or out of a par- ticular debt due to him, the devise is good, notwithstanding there should appear to be no money in the place or on such debt owing.^^ Legacies were given in the following words : "My stepson, John K. Hoppel, of New York, is indebted to me in the sum of four hundred dollars. It is my will, and I give and bequeath said sum of four hundred dollars as follows : Fifty dollars thereof to the said John K. Hoppel, and fifty dollars thereof to Matilda," etc. It was held that the legacies to John K. and 21 Wolfersberger's Est., 15 Pa. C. C. R., 39S ; Bailey's Est., 23 Pa. C. C. R., 139; McDaniel's Est, 9 Pa. C. C. R., 232. 22 Walls V. Stewart, 16 Pa. St., 275 ; Fleming's Est., 25 Pa. C. C. R., 269 8o LAW OF WILLS IN PENNSYLVANIA. Matilda Hoppel, and others were demonstrative, and not spe- cific bequests.^^ Distinction Between a Demonstrative and Specific Legacy as to Ademption. i8i. If a legacy be given with reference to a particular fund, only as pointing out a convenient mode of payment, it is consid- ered demonstrative, and the legatee will not be disappointed though the fund totally fail. But when the gift is of the fund itself, in whole or in part, or so charged upon the object made subject to it as to show an intent to burden that object alone with the payment, it is esteemed specific, and consequently lia- ble to ademption by the alieniation or destruction of the ob- ject.2* Liability of Demonstrative Legacies to Abate. 182. A devisee was to pay $5,500 to children. Held that on a deficiency of the personal estate devises and specific or de- monstrative legacies are liable to abate pro rata.^® When Legacies Given With Expression as to TTse and Application Absolute. 183. Words of desire, recommendation, and confidence are not sufficient to convert a bequest into a trust. When words are too indefinite to create a trust the absolute property is vested in the legatee. So in cases where words are added, expressing a purpose for which the gift is made, and where the purpose of the gift is the benefit solely of the donee him- self, he can claim the gift without applying it to the purpose. Thus if a sum of money be bequeathed to purchase for any person a ring, or an annuity, or to set him up in business, or for his maintenance and education, the legatee may claim the money without applying it or binding himself to apply it to the specified purpose, and this even in spite of an express declara- tion by the testator, that he shall not be permitted to receive the money. ^® 23 Hoppel's Est, 5 Phila., 216. 24 Walls V. Stewart, 16 Pa., 275. 25 Grim's Appeal, 7 W. N. C. 517. 26 Beck's Appeal, 46 Pa., 527; Keen's Est., 11 Pa. C. C. R., affirmed by S. C. in 30 W. N. C, 48; Donaldson's Est, 11 Pa. C. C. R., 311, O. C. LEGACIES. 8 1 Where a Legacy Is Vested or Contingent. 184. Where a legacy is given to a person to be paid or pay- able, at or when he shall arrive at the age of twenty-one, or at a future definite period, the interest in the legacy shall be con- sidered to be vested immediately on the testator's death, the time being only annexed to the payment, and not to the gift. But if a legacy be given to one "in case" he lives to attain a cer- tain age or "if" a certain event happen in the future, or "upon" the compliance with certain conditions, the interest in the legacy will be treated as contingent, for the contingency is annexed to the gift, and not the time of payment merely.^''^ In Case of Doubt, tlie Law Favors Vesting. 185. If it be doubtful whether a legacy is vested or contin- gent, the law inclines to treat it as vested.^* Legacies to Children to Be Paid When of Age Vested. 186. It is held that in case of legacies to children to be paid when of age, they are vested.^ ^ When Gifts to Grandchildren After a Life Estate Vested. 187. Where a bequest is to "all" the grandchildren of testa- tor, after provision for a life estate, the grandchildren take a vested estate from the time of the death of the testator, subject to be opened to let in after-born grandchildren. Where in such a case one of the grandchildren dies in testator's lifetime, leaving a child, such child is entitled to the parent's share under the Act of April 8, 1833, P. L., 250.^" Protection of Contingent Interests. 188. The owner of any contingent interest in the personal property of any decedent may legally require any executor or administrator thereof to make and exhibit in the register's of- fice, his or her account of the trust, in one year from the time of 27 McClure's Appeal, 72 Pa., 414; Bayard v. Atkins, 10 Pa. St., 15; Page's Appeal, 71 Pa., 402 ; Robert's Appeal, 59 Pa., 70. 28 Burd's Exr. v. Burd, 40 Pa., 182. 29 Yost's Est., 134 Pa., 426. 30 IS Pa. C. C. R., 254 in affirmed by S. C, 166 Pa., 300. 6 82 LAW OF WILLS IN PENNSYLVANIA. administration granted, and may require the legatee of any ]3revious interest in the same property, before receiving the same, to give security in the orphans' court having jurisdic- tion of the account of the executor or administrator of the de- cedent in such sum and form as in the judgment of such court shall be sufficient to secure said contingent interest whenever the same may accrue or vest.*^ The Assignment of a Contingent Legacy. 189. The assignment of a contingent legacy will pass a good title.32 Legacies With. Conditions. 190. A condition, precedent or subsequent, being in its na- ture destructive, is not favored by the law, and the tendency of the decisions, where the language of the testator will permit is invariably to regard gifts on condition as imposing a trust, and not operating to take the property out of the legatee if he does not comply with the literal terms of the condition. After providing that the executors should retain a certain house, with its furniture, as a home for her grandnephew during his mi- nority, the testatrix declared that if upon attaining full age the nephew should wish "it as his permanent home," she gave it and its contents to the executors in trust for the purpose. It was held that there was a gift upon a condition subsequent, the legal definition of which is a condition by which an interest vested or estate already vested may be divested.** Bequests Over in Case of Death in Lifetime of Testator. 191. Where an absolute estate is given to a legatee, a be- quest over to take effect in case of the death of the legatee operates only in the lifetime of the testator.** 31 Act April 17, 1869, P. & L. Dig., 1550, Sect, i, P. L., 70. 32 Whelen v. Phillips, 151 Pa., 312. 33 King's Est., 26 Pa. C. C. R., 217. 34 Budd's Est., 12 Pa. C. C. R., 479 ; Rittenhouse's Est., 46 L. Int., 220 ; Mickley's Appeal, 92 Pa., 514; Fitzwater's Appeal, 94 Pa,, 141. LEGACIES. 83 Bequest of Personal Property to Widow for Life Without Limitation Over. 192. If there is a gift of personal property to the widow for life, without limitation over, and without the intervention of a trustee the bequest is absolute.^^ Legacies Charged on Land. 193. Legacies may be charged on land by express words in wills or may be inferred from the testator's intentions ac- cording to the will, but whether or not legacies are expressly charged on land depends upon the will. If often occurs that testators after bequeathing a number of pecuniary legacies dis- pose of their residuary estate, real and personal, which is gener- ally known as a residuary clause. In such a case where the personal property and real estate are blended together in one fund the legacies are charged upon the residuary real estate. On deficiency of the personal property to pay the legacies the legacies are payable from the real estate devised by a residuary clause, the personal estate being the primary fund for payment. The liens of such legacies charged on land are superior to a judgment afterward entered against a devisee. Charging Residuary Ileal Estate Depending on Intent. 194. General pecuniary legacies are not charged by uiiplica- tion if the testator evinces a contrary intent. It was held that where the "rest of" a decedent's estate, consisting of real estate, was directed to be sold after the death of the widow, and the proceeds disposed of in almost explicit and unambiguous terms to specific legatees, the general legacies, for which there was a deficiency in the fund provided for payment, could come in as charged upon the fund of the "rest of" the estate.^^ There must be a blending of real and personal estate. In case of a devise of a specific tract; a direction to pay certain legacies and then a bequest of the residue of personal property there will not be a charge on real estate. When a will creates a residue of personal property and also a residue of real estate, they are not blended.^'^ 35 Bank v. Hartman, 8 Pa. Super., 170. 36 Fisher's Est., 19 Pa. C. C. R., 57 s. c, 6 Pa. Dis., 341. 37 Dugan's Appeal, i Pa. Super Rep., 338. 84 LAW OF WILLS IN PENNSYLVANIA. The question whether a legacy is a charge on real estate is one of intention. If the actual intention appears, no form of words is necessary. Unless technical words by which rules of property are fixed have been used the intention is to be gathered from the whole will. There was a devise of a farm on condi- tion that he pay for it a certain sum. The testator intended that one should be both a devisee and a purchaser. It was held that legacies were charged upon land devised.^* Payments to Be IVEade by Devisees as a Condition Indications of a Charge. 195. A testator devised farms to each of his three sons, and directed that if the three sons "shall accept the above property, it shall be on condition that they shall pay annually an equal portion to their mother of six per cent, interest on two thousand dollars, and, if needed for her support, also, the principal, each paying one-third." On an application by the widow against the owner of one of the farms, the court made an order di- recting the respondent to pay the widow arrears of interest, and a sufficient amount of the principal so as to "reduce the same to five hundred dollars which shall remain a charge upon the land." It was held that the real estate devised became chargeable with the payments to be made to the testator's widow. That from the language it appeared that the testa- tor coupled the payments by the devisees, with the devises of the land, and made the payments a condition upon which the de- vises should vest.^^ The Personal Estate Is the Primary Pund for the Payment of Leg- acies. 196. When general pecuniary legacies are charged by impli- cation on real estate by a residuary gift of real and personal estate the real estate will only be liable in case of a deficiency of personal estate.*" The Orphans' Court Can Compel Payment of Charges. 197. When a legacy is charged upon real estate the legatee 38 Wise's Est., 188 Pa., 258. 39 Gumaer's Est, 19 Pa. Super., 621 ; Moran's Est., 13 Pa. Super., 251. 40 Hintons' Est., 19 Pa. C. C, 26, s. c, 6 Pa. Dis. Rep., 62. LEGACIES. 85 may apply to the orphans' court and such court may proceed according to equity, to make such decree or order touching the payment of the legacy, out of such real estate, as may be re- quisite and just but the legatee shall give such security as the court shall direct, for the indemnity of the devisee or heir, or other person interested, in the event of any debt due by the testator being recovered, for the payment of which such real estate would be liable. There is a provision for the case when the real estate is situate in another county.*^ The jurisdiction of the orphans' court, under the Act of 1834, is exclusive of both the equity and common law jurisdiction of the court of common pleas.*^ Devisees May Pay Legacies Cliarged into Court. 198. The devisee or owner of land charged with the pay- ment of a legacy may pay the amount of such legacy into the orphans' court and thereupon the court will decree the land dis- charged of such charge whereupon upon the application of any party paying into court or any legatee or other person claim- ing the same the court shall make distribution of the money paid in, in the manner provided for the distribution of the proceeds of sheriffs' sales, when paid into court, and direct it to be paid out to the parties who may be legally entitled to re- ceive the same.*^ Property May Be Set Apart for Payment of Legacies Charged. 199. When a testator shall bequeath an annuity or legacies of principal sums payable at a future period or upon contingen- cies or under other circumstances by which the payment or dis- charge and satisfaction of such legacies may be postponed, or may not take place until a distant period after the death of such testator, and either by the express words of the will, or by the rules of the law in the construction thereof, such annuities or legacies are made to become a charge upon all the residu- ary estate of the testator the persons authorized may apply to 41 Act Feb. 24, 1834, Sects. 59, 60, 61, i P. & L., Dig., 1514, 1515, P. L., 70. 42 Brotzman's Appeal, 119 Pa., 64s. 43 Act May i, 1861, i P. & L. Dig., isiS, P- L., 420, Sects, i, 2. 86 LAW OF WILLS IN PENNSYLVANIA. the orphans' court after the expiration of one year from the granting of letters testamentary and that court, after certain proceedings, may make a decree that such parts of the residuary real estate or such real securities or investments in public stocks, shall be set apart for the payment of such annuities and legacies and that the remaining residuary real estate shall be discharged in the hands of any bona fide purchaser of such real estate and such decree shall have the effect of exonerating all such real estate unless an appeal from such decree be taken to the Su- preme Court within one year after entering the' same. The re- served estate is to continue in the hands of the executors or trustees who are to report annually to the court upon the state of the property and when an annuity or legacy becomes extinguished the court can discharge such portion of the estate accordingly.** Legacies by Will and Codicil to Same Legatee Independent. 200. "Where two separate legacies are bequeathed to the sam^ person by two testamentary instruments, viz. one by the will and the other by the codicil ; or where they are given by differ- ent codicils, and the testator has given both of the legacies sim- pliciter, the court in such cases, in the absence of extrinsic evidence, considers that as the testator has given twice, he must prima facie be [have] intended to mean two gifts; and it seems to be immaterial whether the legacies are of equal or un- equal amounts or whether they are of the same or different natures." *^ Tlie Time of Payment of Legacies. 201. Legacies, if no time be limited for the payment thereof, shall in all cases be deemed to be due and payable at the expira- tion of one year from the death of the testator.** Interest on Legacies. 202. As legacies are not due until the expiration of a year from the death of the testator interest thereon does not com- 44 Act Feb. 23, 1853 i P. & L. Dig. 1515, P- L-, 98, Sect. i. 45 Manifold's Appeal, 126 Pa., 508. 46 Act Feb. 24, 1834, I P. & L. Dig., 1521, P. L., 70 Sect. 38. LEGACIES. 87 mence until that time. However, a testator by his will may provide otherwise. Interest in Case of Annual Payments. 202*. There is no substantial difference in a legal aspect between the gift of an annuity for life, and of the interest or income of a fund for life; nor between the gift simply of in- terest and of interest payable annually. Interest accrues from day to day, but is calculated at a rate per annum. In the popular understanding, it is chargeable annually and payable the same way unless custom or contract or specific direction makes it payable in shorter intervals. In all these cases if no actual in- terest to the contrary appear the annuity interest, or income commences to accrue to the legatee at the death of the testa- tor.^^ It will be well for a testator to state by his will the times of payment of interest or income as by the week, month or quarter. Interest on a Specific Sum Bequeathed in Trust. 203. Where there is an absolute bequest of a specific sum in trust although the income thereof be appropriated in a specific manner, interest does not commence until a year after death, unless there is clear evidence of a contrary intent to be found in the will. The provisions of the Act of 1834 making legacies due at the end of one year after the death of the testator will prevail as to the payment of interest.^^ Apportionment of Periodical Payments. 204. The general rule is that apportionment is not made of rents, dividends, annuities or other periodical payments be- coming due at fixed intervals, but only of sums accruing from day to day. Dower and sums for the maintenance of a wife or child are exceptions. An annuity in lieu of dower will last as long as dower would have lasted. There was an annuity to a surviving widow, "in lieu and full satisfaction of dower" and 47 Flickwir's Est., 136 Pa., 374. 48 Eichelberger's Est., 7 Pa. Super., 401. 88 LAW OF WILLS IN PENNSYLVANIA. was payable quarterly. She died in the midst of a quarter. It was held that the annuity ran to the last day of life.** Apportionmeiit of Annual Sums. 205. Annuities are not apportionable in respect of time. An annuity at common law arose by contract and was charged on the person of the grantor charged with payment thereof. An annual sum to be paid under the direction of a will is not an annuity and is apportionable.^" Wills for Charitable and Beligious Uses to Be Made One llonth Be- fore Death.. 206. The Act of April 26th, 1855, provides "that no estate, real or personal, shall hereafter be bequeathed, devised or con- veyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two creditable, and at the time, disinterested wit- nesses, at least one calendar month before the decease of the testator, or alienor, and all dispositions of property contrary hereto, shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law: Provided, That any disposition of property within said period, bona fide made for a valuable consideration, shall not be hereby avoided." ^^ Definition of Charities. 207. All the definitions of charity in the text books or de- cisions say that the benefits must not be confined to a few, but must be catholic and universal, and above all the participants must be indefinite and not individual or named. When a testator gives his executors "the sum of $25,000, to be expended by them in behalf of such charities as to them seem best," he means charitable institutions or associations, and their discretion is so limited. They have no authority to expend the same upon individuals.''^ 49 Blight V. Blight, $1 Pa., 420. 50 Bayard's Est., 21 Pa. C. C. R., 49, O. C. Phila. 51 Act April 26, 185s, I P. & L. Dig,, S37, P. L., 328, Sect. 11. 52 Padelford's Est., 9 Pa. Dis., 174. LEGACIES. 89 Effect of railure of a Cnaritable Bequest. 208. Where a testator creates spendthrift trusts for his sons for life with remainder to the survivor and survivors for life, and then to charity, and the charitable bequest fails by reason of the death of the testator within a calendar month of the execution of his will, the life estates in trust given to the sons are not merged in the fee in remainder or revision which they take under the intestate laws by reason of the failure of the charitable bequest.^* Religious and Charitable Gifts Preserved from Failure of Objects and Other Events. 209. The Act of May 9, 1889, provides that "no disposition of property theretofore or hereafter made for any religious or charitable use, shall fail for want of a trustee or by reason of the objects ceasing, or depending upon the discretion of a last trustee, or being given in perpetuity, or in excess of the an- nual value limited by law ; but it shall be the duty of any court having equity jurisdiction in the proper county, to supply a trustee, and by its decree to carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity.®* The Cy pres doctrine is adopted by the Act of May 9, 1S89 P. L., 173, and under that act it was held that a legacy should go to a new church which was a successor and entitled to all the rights of an old church.®' Iiegatees of Contingent Interests May Have Accounting and Security. 210. The owner of any contingent interest in the personal property of any decedent may require the legatee of any pre- vious interest in the same property, before receiving the same, to give security to the orphans' court to secure such contingent interest.*® 53 Moore's Est., 198 Pa., 611. 54 Act April 26, 1855, Sect. 10, 2 P. & L. Dig., 4096, P. L., 328 ; Act May 9, 1889, Sect. I, 2 P. & L. Dig., 4096, P. L., 173 ; Act May 23, 1895, Sect, i, 3 P. & L. Dig, 511, P. L., 114 (amending Act 1855.) 55 In re Tenth Presbyterian Church, 8 Pa. Dis. Rep., 323. 56 Act April 17, 1869, I P. & L. Dig., 1510, P. L., 70, Sect. I. go LAW OF WILLS IN PENNSYLVANIA. AdTancements. 211. An advancement is a gift by a parent to a child on ac- count of what may be coming to the child from the parent's estate after his decease. It is natural that a parent should treat his children in the distribution of his estate equally and if the value thereof is materially lessened by gifts to particular children in his lifetime it seems to be just and proper to equal- ize shares by treating such gifts as advancements. Conversion of Debts into Advancements. 211*. It often occurs that parents lend their sons money for which they hold their obligations. Sometimes such obligations exceed the amount of the sons' distributive shares and the conse- quences may be the executors of the father may be compelled to collect such obligations. In such case if the father's estate is solvent he can will and order that the sons shall be released from the difference. A debt may be converted into an advance- ment. In such case the father should consider and order as to what interest shall be chargeable in computing the advance- ment. A debt converted by a testator into an advancement bears interest only from the time fixed by him. If no date be fixed by the will, interest is chargeable upon the expiration of a year after the testator's death. For debts turned into ad- vancements by the terms of the will bear no interest during the lifetime of the testator. Advancement is a pure irrevocable gift by a person in his lifetime. By taking a note the idea of an advancement is repelled and a testator should make his will plain in such case.^^ Liability to Advancements When Legacies Taking by Kepresenta- tion. 212. In case of grandchildren as legatees, in the place of their deceased mother the children take their mother's share subject to the advances made to her.^* Annuities. 213. A bequest for the purchase of an annuity may be a very 57 Patterson's Appeal, 128 Pa., 269. 58 Mickley's Est., 4 Pa. Super, 550. LEGACIES. 91 safe and convenient provision. If the company granting the annuity is reliable then prompt payments of income without any accounting contingencies or further trouble will be pro- vided. However if from sickness or age there is any great probability of a legatee dying before any great length of time it may be best to give interest or income on a sum for life. This can be and should be done by means of a trust. In such case the principal can be made to revert back to the estate, to go to other parties as the will may provide. Sometimes a testator's desire to provide for a person will be satisfied by merely giv- ing income but he may happen to give the principal too so that upon the decease of the legatee it may go to persons whom the testator may not know or particularly regard. In case of a trust to pay income for life there can be provisions that it will not be subject to debts, creditors, liabilities, pledges, assign- ments, etc. of the beneficiary. Prevention of Devises and Legacies to Children and Issue from Laps- ing. 214. The Act of April 8th, 1833, provides "that no devise or legacy in favor of a child or other lineal descendant of any testator, shall be deemed or held to lapse, or become void, by reason of the decease of such devisee or legatee, in the life- time of the testator, if such devisee or legatee shall leave is'iue surviving the testator ; but such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator the right to direct otherwise." '^ Prevention of Devises and Legacies to Brothers and Sisters from Lapsing. 215. By the Act of 6th May, 1844, it is provided: "No de- vise or legacy hereafter made in favor of a brother or sister or the children of a deceased brother or sister of any testator, such testator not leaving any lineal descendants, shall be deemed or held to lapse, or become void by reason of the de- cease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testa- 59 Act April 8, 1833, Sect. 12, i P. & L. Dig., 1448, P. L., 249. 92 LAW OF WILLS IN PENNSYLVANIA. tor; but such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator the right to direct otherwise.*" Lapsed Devises to Be Included in Besidue. 2 1 6. By the Act of June 4th, 1879, it is provided that unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the life- time of the testator, or by reason of such devise being con- trary to law, or otherwise incapable of taking effect, shall be in- cluded in the residuary devise if any, contained in such will. Where Lapsed Legacy Falls Into the Besidue. 217. When a legacy lapses it falls into residue, but if the lapse is of a bequest contained in the residuary clause itself, then the testator as to said bequest, dies intestate.*^ The physical location of the residuary clause in a will does not alter its office or effect.*^* Legatee for Life or Limited Period to Give Security to Protect Those to Take in Bemainder. 218. "Whenever personal property is bequeathed to any person for life, or for a term of years, or for any other con- tingency, the executor of such will shall not be compelled to pay or deliver the property so bequeathed to the person so en- titled until security be given in the orphans' court having jur- isdiction of his account, in such sum and form as in the judg- ment of the court, shall sufficiently secure the interest of the person entitled in remainder, whenever the same shall accrue, or vest in possession."*^ The right to require security can be waived by a testator.*^ 60 Act May 6, 1844, Sect. 2, i P. & L. Dig., 1488. 61 Gorgas' Est., 14 Pa. C. C. R., 655. 61* David McKee's Est., 17 Pa. C. C. R., 548. 62 Act Feb. 24, 1834, Sect. 49, i P. & L. Dig., 1509, P. L. 70. 63 White's Est., I W. N. C, 114. LEGACIES. 93 The Act of May 17, 1871, is like the Act of 1834, in provid- ing security to protect those in remainder.®* Attachment of Legacies. 219. Legacies may be attached by proceedings in foreign attachment against the legatee or by attachment execution upon a judgment against the legatee. There can be a spend- thrift trust created in a will to prevent the attachment."^ When "Issue" Word of Purchase in Case of Personalty. 219*. The word "issue" following a life estate in person- alty is a word of purchase. Taking as purchasers, a gift to issue carmot extend a prior life estate given to an ancestor, whether such gift be legal or equitable. The rules governing the con- struction of gifts of personal estate will be applied, though the will dispose of real estate in the same clause. There was a bequest as follows : "One share thereof I give, devise, and be- queath unto my son, James P. Showwalter, he to hold the same and pay the interest at his discretion to my son, Isaac C. Show- waiter, for his maintenance and support, said yearly interest and said bequest not to be subject to the debts and liabilities of the said Isaac C. Showwalter; and, in case it shall become necessary to expend any part of the principal of such share for Isaac's support, my son, James, is authorized to do so ; and in case said Isaac should die without leaving issue the principal sum I order to be paid to the heirs of the said Isaac C. Show- waiter." It was held, that the will created a spendthrift trust and that the son's interest was not attachable for his debts. That the limitation over of personal estate, in default of issue, is a bequest to such issue by implication; that the issue take as purchasers from the testatrix, and their estate being inter- posed between the life estate and remainder to heirs, will pre- vent a merger. That where the trust is active, the ultimate be- quest to "heirs" of the cestui que trust will not merge the whole estate in the life tenant.*^* 64 Act May 17, 1871, i P. & L. Dig., 1511, P. L., 269, Sect. i. 65 Act July 27, 1842, I P. & L. Dig., 1519, P- L-> 436; Roth's Appeal, 9 W. N. C, 398, S. C. 65* Heiss' Est., i Pa. C. C. R., 397 ; Kreamer's Executors v. Show- alter, I Pa. C. C. R., 453- 94 LAW OF WILLS IN PENNSYLVANIA. A Legacy to a Class Witliout Individuating Members. 220. A legacy to a class without individuating the members, is a gift to the persons who form that class and does not in- clude persons who had ceased to exist when the class was de- fined. The Act of July 12, 1897, preventing lapsing of legacies in favor of children of brothers and sisters is confined in its op- eration to cases of death of a member of a class to whom the gift is made after the date of the will in the lifetime of the testator.*' EfEeot of Absolute Gift Payable at Discretion of Trustee. 220*. An absolute gift to a legatee, followed by a direction to a trustee to hold the fund and to disburse it to the legatee according to his (the trustee's) discretion, so that the same should not be liable for the debts of the legatee, will be im- mediately awarded to the legatee free of any trust; (McAleer's Est., 16 Pa. C. C. R., 450; McCune v. Baker, 155 Pa., 503) but a testator may attach to an absolute gift a restric- tion that it shall not be liable so long as it remains in the hands of the trustee to the claims of creditors of the owner, and is not subject to an attachment execution; Beck's Est., 133 Pa., 51 ; Goe's Est., 146 Pa., 431. The only duties of the trustee in this case are to hold and disburse.®^ Absolute Gift Followed by Qualifying Trust. 221. Under an absolute gift in the first instance, to children or legatees, followed by a direction that the shares shall be held upon trusts, which do not exhaust the whole interest, the lega- tees take their shares absolutely, subject only to the qualifying trusts.®^ Accumulation of Income to Carry Out Trust. 221*. Accumulations of income that may be reasonably re- quired fully to carry out the provisions of a trust, are not within the prohibitions of the Act of April 18, 1853.®^ 66 Fosbenner's Est., 26 Pa. C. C. R., 88; Harrison's Est, 10 Pa. Dis., 45. 67 Van Dusen's Est., 17 Pa. C. C. R., 533. 68 McAleer's Est., 16 Pa. C. C. R., 450. 69 Mitcheson's Est., 5 Pa, C. C. R., 99. LEGACIES. 95 When the Word Money May Include Bonds. 222. The rule of construction is that the word "money" does not extend beyond what is literahy money, unless the con- text requires it.'^" When a. Legacy to a Child Abates Pro Bata with Other Legacies. 222*. As there is no legal obligation of a man to support his child or adopted child after his death, a legacy to such child will abate pro rata with other legacies, unless stated in the will to have been given for maintenance.''^^ When a Gift of the Income of Fund Takes EfEect from Death of Tes- tator. 223. "That a gift of the income or interest of a fund or des- ignated sum, not preceded by any intervening limitation, takes effect from the death of the testator, cannot be regarded as open to controversy. Flickwer's Ap., 21 Crum., 374." '^^ Wo Kignt of B«siduary Legatee to Income Before Vesting. 223*. A general residuary clause carries with it no right to the income accruing before the time at which it is to vest.^^ Besiduary Legatee Can Only Take What Bemains after Debts and General Legacies Are Paid. 224. Personal property not specifically bequeathed is primar- ily liable for debts, and the residuary legatees can only take what remains after debts and general legacies are paid.''* Interest on Legacy After Death of Prior Taker Commences at that Time. 224*- When a legacy is not payable until after the death of another person, interest does not run on such legacy until such death occurs.''® 70 Smith's Est., 19 Pa. C. C. R., 516. 71 Bixenstein's Est., 19 Pa. C. C. R., 152. 72 Phillips' Est., II Pa. C. C. R., 500; Flickwir's Est., 136 Pa., 374. 73 Martin's Est., 19 Pa. C. C. R., 637. 74 Mulligan's Est., 157 Pa., 98. 75 Meyer's Est., 7 York, 39. 96 LAW OF WILLS IN PENNSYLVANIA. A Lapsed Share of the Residue Goes to the Next of Kin. 225. If the residue of an estate, either real or personal, is given to persons by name and not in a class, each is entitled to a share and no more; and if there should happen to be a lapsed share of the residue, it goes to the next of kin, if it con- sists of personalty, and to the heir if realty.'^® Bequest for DyEainteiiaiice of Son. 225*- A legacy given to a parent for the care of an invalid son is a trust and does not lapse upon the death of the parent during the life of the testator.' '^ Bequest for a Particular Purpose. 226. Where there is a bequest of money to, or in trust for, legatees absolutely, but with a direction for the enjoyment or application of the money in a particular mode, for their benefit . . . . the legatees will be entitled to receive the capital moneys immediately, regardless of the particular modes di- rected for the enjoyment of application. But the rule does not apply when the total amount of expenditure is to be deter- mmed by the discretion or judgment of a trustee. It was held, however, that the gift of a specified sum of $100 to be used during life of the legatee as the trustee "may think necessary in buying clothing or necessaries for her," was according to the circumstances, absolute.''* Coupons Immature at Death of Testator Pass with Bequest of Bond. 226* Coupons attached to a bond, immature at the testators- death pass to a legatee.'* Legacy Given on a Condition Subsequent Vests Immediately. 227. When a legacy is given on condition subsequent, it vests immediately subject to the performance of the condition, and the court will permit security to be given therefor.®" 76 Evennan v. Everman, 15 W. N. C, 417. Tj Elmslie's Est., 25 Pa. C. C. R., 447, s. c, 10 Pa. Dis., 397. 78 Armstrong's Est., 10 Pa. Dis., 670. 79 Oakley v. Gries, i Wood., 311. 80 Singerly Est., 38 L. I., 276. LEGACIES. 97 Vested Interests after Successive Life Estates. 227*. A gift to one person for life, and after her death to another for Hfe, then over to a third person absolutely, and in case of the death of both the second and third takers, then to the residue, creates interests which vest at the death of the tes- tator, subject to be divested upon the happening of the condi- tion subsequent. The law leans in favor of vested estates; and where the interests take effect successively, as in case of a gift of the entire fund, following successive life estates, the fact that they do not vest in possession until the expiration of the preceding limitation, does not prevent their vesting in in- terest.*"* Gift Over in Default of the Exercise of a Power of Appointment. 228. Gifts over, in default of the exercise of a power of ap- pointment, vest at once on the death of the donor, subject to be divested upon the execution of the power. Hence, where the donee exercises the power in favor of the devisees and legatees of the donor's will, to whom the gift over has been made, the interests of the appointees under the will of the donor are not divested by the fact that they died before the donee.® ^ Gift for Life with. Power of Consumption. 228*. A legatee who has not used or consumed property bequeathed during life with power of consumption, may not give it by will to others than those designated by testator.*^ Disinheriting Heirs. 229. Mere negative words are not sufficient to exclude the heir; a declaration by a testator that he would not give his niece one cent will not exclude her from an undisposed residue under the intestate laws.** Legacies to Adopted Children Will Lapse. 230. The Act of April 8, 1833, Sect. 12, to prevent lapsing 80* Macalester's Est., 14 Pa. C. C. R., 385 ; McClure's Ap., 72 Pa., 414. 81 Evan's Est., 25 Pa. C. C. R., 266, s. c, 10 Pa. Dis. R., 261. 82 Tyson's Est., 191 Pa., 218. 83 Bruckman's Est., 19S Pa., 363- 7 98 LAW OF WILLS IN PENNSYLVANIA. of legacies does not apply to children adopted under the Acts of May 4, 1855 or May 19, 1887.^* Specific liCgacies not liiable to Abate to Pay Costs of Administration and Funeral Expenses. 231. In the adjudication of the personal estate of a decedent, specific bequests cannot be forced to abate in relief of a pe- cuniary legacy by contributing to payment of costs of admin- istration and funeral expenses.*® Lapse of a Legacy Contained in a Besiduary Clause. 232. In Pennsylvania, as a general rule, when a legacy lapses, it falls into the residue, but if the lapse is of a bequest contained in the residuary clause itself, then the testator as to said be- quest, dies intestate and the next of kin is entitled to take, even though the will provides that such next of kin was not made a legatee because she was already in receipt of a large income from other sources.®® When Legacy Payable at Discretion of Executor Payable at His Death. 233. A legacy, of which the interest is presently payable and the principal at the discretion of the executor, becomes vested and demandable by the beneficiary upon the death of the executor to whom the discretion is vested, there being no be- quest over and no restriction to the life of the first taker.*'' Legatee's Bond Kequired as Bemainderman. 234. No security, in addition to her own bond will be re- quired from a legatee where the testator, by his will, gives all his estate to his wife for life "so that she may have the full use and benefit thereof during such term," and upon her death to a trustee, in trust to invest the same for the benefit of his children, etc.** 84 Phillip's Est, 17 Super., 103. 8s Moore's Est, 19 Pa. C. C. R., 459, s. c, 6 Pa. Dis. R., 245. 86 Gorgas' Est., 14 Pa. C. C. R., 655. 87 Clarke's Est., 28 Pa. C. C. R., 285 ; s. c, 7 Pa. Dis. R., 468. 88 Zehender's Est., 22 Pa. C. C. R., 504; s. c, 8 Pa. Dis. R., 439. LEGACIES. 99 Bistribution to Legatee Dying Intestate in Another State. 235. When a legatee, domiciled in another State, dies intes- tate, the courts of Pennsylvania may, under certain circum- stances, make distribution of the legacy directly to those en- titled to his estate under the intestate laws of the State of his domicile, without the intervention of an administrator in either State.»9 When Estate Vested in Children Who Shall Be then Living. 236. A provision that at the death of a mother the estate shall be divided among the testator's surviving children or the issue of such of them as may be then dead, will be construed, not as making the right of a child to participate dependent upon his being alive at the time of distribution, but simply as indicating the time of successsion or devolution of his inter- est.®®* 89 Rittenhouse's Est., 8 Pa. Dis. R., 700. 89* Thompson's Est., 22 Pa. C. C. R., 286. CHAPTER XL DEVISES. SECTION 237. Definition of Devise. 238. What estates are devisable. 238* Limitation for creation of trusts for religious or charitable uses. 239. Time of taking effect as to real estate. 240. After acquired property to pass by a general devise. 241. Estates for life. 242. Where devise for life; re- mainder to children, when no fee. 243. A devise for life remainder to children. 244. The vifords "descend to their children" after life estate to tes- tator's children do not give them a fee. 245. Dower. 246. Widows' rights under intes- tate law in lieu of dower. 247. Merger of charge for dower in the fee. 248. A devise or bequest by hus- band to wife in lieu of dower — if she accepts. 249. Curtesy. 250. In Pennsylvania the birth of issue not necessary. 250*. In Pennsylvania a right to seisin merely is sufficient. 251. No curtesy in wife's remain- der. 252. No curtesy in wife's reversion if prior estate continues. 100 SECTION 253. Distinction between estates terminated by condition or limi- tation as to curtesy. 254. Curtesy in case of wife's fee subject to trust for separate use. 255. Curtesy in case husband is insolvent. 256. Loss of husband's rights to a deceased wife's estate by de- sertion. 257. Joint tenancy. 258. Act of 1812 abolishing joint tenancy. 259. Survivorship may be created by will notwithstanding act. 260. Tenancy by entireties. 261. May exist as to personal es- tate. 262. Cannot be encumbered with- out mutual consent. 263. Not destroyed by Act of 1812 and married women's Acts. 264. Rights to mortgage by ten- ants by entireties. 265. Tenancy in common. 266. Estates in fee simple. 267. Devise will pass the whole es- tate if none given . over under act 1833. 268. Construction of the act of 1833. 269. An estate in fee by giving to heirs of devisee. 270. Fee in case a devisee for life dies without leaving family. DEVISES. lOI SECTION 271. A restraint against alienation void in case of a fee. 272. The word heirs not necessary to pass fee by will. 273. Devise over after a fee in- tended to prevent a lapse. 274. A devise in fee restrained by subsequent expression. 275. A condition against devisee's debts void in case of a devise in fee. 276. Devise to heirs when persons stand in that relation. 277. Devise "to my legal heir" for life and remainder to his heirs. 278- Devise in fee in case of con- dition to pay taxes. 279. Devise to son for life and re- mainder to children and default of children to his heirs, a fee. 280. Devise in fee with direction to convey to another. 281. Defeasible fee in case of a devise to wife as long as she shall remain a widow. 282. A devise to wife of a fee simple notwithstanding devise of part undisposed of by wife. 283. Fee simple estate by use of technical language. 284. The rule in Shelly's case. 285. Overthrows life estate con- trary to intention. 286. The remainder must be to the whole line of heirs. 287. When limitation to heirs mediate. 288. The word heirs not neces- sary. 289. Estates must be of the same quality. 290. A direction to sell and divide among heirs does not prevent operation. 291. The words "descend to their children" mean heirs of chil- dren. SECTION 292. A limitation to descendants indicates a root of new succes- sion. 293. A devise to one for life and her heirs but over and to be sold if she leaves no heirs a fee. 294. Qualified or base fees. 295. Examples of base fees. 296. Upon determination of base fee property reverts. 297. The origin and nature of es- tates tail. 298. A devise to one for life and after his death to his "children or legal heirs" a fee tail. 299. Barred by deed. 300- Conversion into fee simple by act of 1855. 301. Contingent interests after an estate tail cut off by deed. 302. Estates descend according to common law. 303. Definition of the word issue. 304. Devise in fee with a devise over in case of dying without issue. 305. Construction of words "dying without issue, &c.," by act of 1897. 306. Application of the act of 1897. 307. The great importance of the act of 1897 as to future wills. 308. Dying without issue during lifetime of widow. 309. Where the word heirs used as children. 310. A limitation over to persons in being a definite failure of is- sue. 311. As to the words "dying without leaving issue" intention must govern. 312. The words "and if none" mean an indefinite failure of is- sue. 102 LAW OF WILLS IN PENNSYLVANIA. SECTION 313. Children meant in case of a devise over in case of death without issue or issues of chil- dren. 314. A devise to issue of a de- ceased child may mean to chil- dren. 315. When the words dying with- out heirs mean dying without issue. 316. Remainders. 317. Remainders vested or contin- gent. 318. The owner of vested interest treated as in possession. 319. A contingent remainder must await the natural determination of particular estate. 320. Devise to unborn children contingent. 321. Avoiding intestacy in case contingent interest should not take effect. SECTION 322. Estate contingent when per- sons must be living at a certain time. 323. Times in which a contingency may happen. 324. Vested remainders to be in after-born children. 325. Gift to brothers and sisters after death of husband — if dead to their children vested. 326. Executory devises. 327. Distinction between executory devise and a contingent re- mainder. 328. Estates on conditions. 329. Kinds of conditions. 330. Provisions in restraint of marriage valid in case of a limi- tation over. 331. The rule against perpetuities. 332. How modified by statutes. 333. No restraint upon alienation when interest of devisee vested. 334. Lapsing of devises. Definition of a Bevise. 237. A devise is a disposition of real property by a last will and testament. It has been regarded as a kind of conveyance declaring the uses of land after the death of the testator. In case of a direct, immediate and absolute devise, the real es- tate vests immediately in the devisee without any interven- tion of an executor. He has the right to immediate possession of land and has the right to the rents due after the death of the testator. For a certain period the real estate may be sold by the executor under order of the orphans' court for the pay- ment of the debts of the testator in case the personal estate should be insufficient to pay the same, but until such sale, the devisee will have the right to collect the rents, although the es- tate of the testator may be insolvent. What Estates are Devisable. 238. All interests in real estate which are transmissible, either by operation of law, or by act of the owner, are devis- DEVISES. 103 able, including a possibility coupled with an interest; vested interests though liable to be defeated by conditions subsequent. Contingent remainders and executory devises are regarded in the nature of vested interests, as to become transmissible and devisable, provided the contingency upon which the estate de- pends shall finally turn up in its favor, notwithstanding the testator may have deceased before the estate became absolute in him.^ Limitation for Creation of Trusts for Religious or Charitable Uses. 238*. Wills creating such trusts must be made within one month of testator's decease and attested by two credible and disinterested witnesses.^ Time of Taking EfEect as to Eeal Estate. 239. "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."^ With reference to the real and personal estate comprised '"n a will, it must be construed to speak and take effect at the time stated ; but there may be a question as to what the language creates. It was held that in creating a sole and separate use by will, the will speaks from the date of its execution.* Aftpr Acquired Property to Pass by a General Devise. 240. "The real estate acquired by a testator after making his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will." ^ Estates for Life. 241. An estate for life is a freehold interest in lands, the duration of which is confined to the life or lives of some par- 1 Redfield on Wills, *390-3Ci2. 2 Act April 26, 1855, Sect. 11, P. & L. Dig., 1444, P. L., 328. 3 Act June 4, 1879, Sect, i ; i P. & L. Dig., 1444, P. L. 88. 4 Neale's Appeal, 104 Pa., 214. ' ' ' 5 Act April 8, 1833, Sect. 10 ; i P. & L. Dig., 1447. I04 LAW OF WILLS IN PENNSYLVANIA. ticular person or persons, or the happening of some uncertain event. An estate Hmited upon a contingency, as to a woman during her widowhood, is a life estate, though it may termin- ate sooner than the owner's Hfe, there being a limitation, and not a condition.® "Wliere Devise for Life; Remainder to Children, When no Fee. 242. The rule is that in case of a devise to one for life, with remainder to his children,, the first taker has no freehold of in- heritance. The fact that a devisee was without children when the will was made or when it took effect by the death of the testator does not change the rule.''^ A Devise for Life, Bemainder to Children. 243. A devise to a son "for his sole use, benefit and behalf for and during" his natural life, and at his death the remainder to his children, share and share alike forever, creates a life es- tate only in the son. In such case if there is no residuary clause, and the son die without leaving children, the re- mainder vests in the persons who were the heirs of the father at the time of the father's death.^ The Words "Descend to their Children" After Life Estate to Testa- tor's Children do Not Give Them a Fee. 244. There was a devise to children for life in common and the will directed "and immediately after their decease the same shall descend to their children in equal shares, or their heirs." It was held that the word "descend" did not indicate that the children should take directly from their respective parents and not under the will.* Dower. 245. When a man is seized during coverture of an inheri- tance in lands and tenements, which by possibility any issue of 6 I Hilliard on Real Property, 64. 7 Keim's Appeal, 125 Pa., 480. 8 Lancaster v. Flowers, 198 Pa., 614. 9 Keim's Appeal, 125 Pa., 480. DEVISES. 105 his wife might inherit such wife shall hold after his death one-third part of those lands and tenements for her natural life, as an estate in dower. Widow's Riglits Under Intestate Law in Lieu of Dower. 246. The interest which a widow takes in this State, is in lieu of her dower at common law, and is an interest in land, and not a mere charge or lien; and this character of her in- terest is not changed by the Act of March 29, 1832, P. L. 201, which prescribes the form of ascertaining and assigning it, and changes somewhat the method of its use and enjoyment.^" Merger of Charge for Dower in the Pee. 247. Where a widow, whose dower is charged upon lands, purchases the land in fee, her life estate is merged in the fee, and if the property is sold under a judg- ment against her or a purchase money mortgage, the purchaser takes it clear of the dower.^^ A Devise or Bequest by Husband to Wife in Lieu of Dower— If She Accepts. 248. By the Act of April 8th, 1833, a devise or bequest by a husband to his wife of any portion of his estate or property, shall be deemed and taken, to be in lieu and bar of her dower in the estate of such testator, in like manner as if it were so expressed in the will, unless such testator shall in his will de- clare otherwise : Provided that nothing therein contained shall deprive the widow of her choice either of dower or of the estate or property so devised or bequeathed.^^ Definition of Curtesy at Common Law. 249. Where a wife is seized of lands in fee-simple or fee tail general or as heir in tail special, and the husband and wife have issue born alive, after the wife's death the husband shall hold the lands for his wife, and this estate is a tenancy by the curtesy. Four circumstances were necessary to the existence 10 Kunselman v. Stine 192 Pa., 462. 11 Kreamer z/. Fleming, 191 Pa., 534. 12 Act April 8, 1833, Sect. 15 ; i P. & L. Dig., 2418. Io6 LAW OF WILLS IN PENNSYLVANIA. of the estate, viz., marriage, seisin of the wife, issue, and death of the wife. In Pennsylvania the Birth of Issue Not Necessary. 250. Under the intestate law act of April 8th, 1833, the birth of issue is not essential to an estate by curtesy in Pennsylvania. The act does not apply to estates by the curtesy.^* In Pennsylvania a Right to Seisin Merely is Suflacient. 250*. In Pennsylvania a right to seisin merely, is sufficient to give curtesy. No Curtesy in Wife's Bemainder. 251. Seisin of the wife is just as necessary under the statute as at common law to entitle a husband to curtesy. A hus- band is not entitled to any tenancy by the curtesy to his wife's estate in remainder when the precedent estate terminates after her death.^* No Curtesy in Wife's Reversion if Prior Estate Continues. 252. There can be no tenancy by the curtesy of the rever- sion vested in the wife if the particular estate continue till the death of the wife. This doctrine applies as well to equitable as to legal estates. Therefore a mere naked seisin of the free hold by the wife as trustee will not support tenancy by the cur- tesy though she has the beneficial interest in the reversion.^ ^ Distinction Between Estates Terminated by Condition or Limitation as a Curtesy. 253. If the estate of the wife be an estate of inheritance de- termined by limitation which operates to defeat her estate at common law, the right of curtesy is gone. But if the limita- tion over be by way of springing use, or executory devise, which takes effect at her decease, thereby defeating her original estate before its natural expiration and substituting a new one in its place which could not be done at common law, the seisin 13 Act April 8, 1833, Sect, i ; i P. & L. Dig., 2407 P. L. 315. 14 Young V. Lynch, 6 Pa. Dis. Rep., 348. 15 Chew V. Commissioners, &c., 5 Rawle, 160. DEVISES. 107 of an estate which she had of the fee simple or fee tail will give the husband curtesy.^® Curtesy in Case of Wife's Fee Subject to Trust for Separate Use. 254. In case a separate use trust for a married woman is carved out of a fee simple estate, the husband will have his curtesy. Curtesy in Case Husband is Insolvent. 255. In Pennsylvania, a wife cannot by her will deprive her husband of his right as tenant by the curtesy. Upon her de- cease, if her husband should be insolvent, his creditors may levy upon his curtesy right. It is suggested that such result can probably be avoided by the wife devising her real estate to a trustee in trust for the husband with a spendthrift clause protecting against creditors and that then the husband could elect to take under his wife's will, in lieu of claiming his cur- tesy. Loss of Husband's Bigbts to a Deceased Wife's Estate by Desertion. 256. "No husband who shall have as aforesaid for one year or upwards previous to the death of his wife, wilfully neg- lected or refused to provide for his wife, or shall have for that period or upwards wilfully and maliciously deserted her, shall have the right to claim any right or title in her real or per- sonal estate after her decease, as tenant by the curtesy or under the intestate laws of this Commonwealth."^'^ Joint Tenancy. 257. Joint tenancy is where persons hold property jointly and not severally. The distinguishing peculiarity is that there will be the right by survivorship. It was held that in case of a devise to several persons, with no indication to divide the property, or to give it in severalty, the estate is a joint-tenancy; 16 McMasters v. Negley, 152 Pa., 303- 17 Act May 4, 185S, P. & L. Dis., 2902, P. L., 430 Sect. 5; Estate of Bridget White, 188 Pa., 633. I08 LAW OF WILLS IN PENNSYLVANIA. while, if such intent appears from express words, or the nature of the case, it is a tenancy in common.^* Where lands are granted, or devised to two or more persons, to hold to them and their heirs, for their lives or for another's life; they all take a joint estate, and are called joint tenants.^" Act of 1812 Abolishing Joint Tenancy. 258. "If partition be not made between joint tenants, whether they be such as might have been compelled to make partition or not, or whatever kind the estate or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend or pass by devise, and shall be subject to debt, curtesy, or dower, or transmissible to ex- ecutors or administrators, and be considered to every other intent and purpose in the same manner as if such deceased joint-tenants had been tenants in common. Providing that noth- ing in this act shall be taken to effect any trust estate.^" Survivorship May be Created by Will Notwithstanding Act. 259. Notwithstanding this act, (which applies to both real and personal property), the doctrine of survivorship, which constitutes the distinguishing incident of joint- tenancies, has not been wholly abolished, and this incident may still exist when expressly provided for by deed or will, or when it arises by necessary implication. But while survivorship may thus be created, it is clear from all the authorities that an intent to create will not be inferred in the absence of apt words indica- ting the purpose." . . . . "The safest course is to decide such case upon its own facts, and in accordance with the principle of the Supreme Court, that unless the terms of the instrument expressly or by necessary implication call for a joint-tenancy, a tenancy in common will be presumed. " In cases where a construction arises distinguishing between joint- tenancy and tenancy in common, the distributive words "among," "any" and "each" used to distinguish estates in com- 18 Martin v. Smith, s Binn., 16. 19 Hilliard on Real Property, Vol. i, p. 574; 3 Ed. 20 Act of March 31, 1812, Sect, i ; i P. & L. Dis., 2450, s Sm. L., 259. DEVISES. 109 mon from joint-tenancies are given controlling effect in deter- mining those estates to be tenancies in common.^^ A testator, vi^ith respect to his estate, real, personal or mixed, devised the same to his three brothers by name "as joint-ten- ants, and to the survivors and survivor of them, and the heirs of said survivor." It was held that the three brothers took an estate for life with cross-remainder in fee to the survivor; so that the estate should be held and enjoyed by all of them, during the life of all ; — by two, after the death of one, and by the last survivor in fee simple. That though survivorship as an incident to joint-tenancy was abolished by the Act of 1812, it may be expressly or impliedly given by will.^^ A testatrix de- vised a house to her two daughters, A and L, as long as they should remain single, and directed that it should be sold on their death or marriage. It was held that on the death of A, L became sole tenant of the land for life. That intention that there shall be a survivorship may be by express words or im- plication.^* Tenancy by Entireties. 260. A tenancy by entireties arises whenever an estate vests in two persons who are at the time when the estate vests hus- band and wife. Words which in a conveyance to unmarried persons constitute a joint-tenancy will create, if the grantees are husband and wife, a tenancy by entirety.^* May Exist as to Personal Estate. 261. A tenancy by entireties may exist in personal as well as real property, in choses in action as well as choses in posses- sion.^^ Cannot be Encumbered Without Mutual Consent. 262. When husband and wife hold an estate in lands by 21 Sturm V. Sawyer, 2 Pa. Superior Rep., 254. 22 Arnold v. Jacks' Executors, 24 Pa., 57. 23 Lentz V. Lentz, 2 Phila., 117. 24 Bramberry's Est., 156 Pa., 628. 25 Bramberry's Est., 156 Pa., 628. no LAW OF WILLS IN PENNSYLVANIA. entireties neither can encumber the estate without the consent of the other.2* Not Destroyed by Act of 1812 and Married Women's Acts. 263. The tenancy by entirety is not destroyed by the Act of March 31, 1812, which abolished survivorship among joint- tenants or the married woman's act.*'' Kights to Mortgage by Tenants by Entireties. 264. Upon a sale by husband and wife as tenants by entire- ties, a mortgage given to them for purchase money will be held the same as the land.^* Tenancy in Common. 265. Tenants in common hold lands and tenements by sev- eral titles and not by a joint title, and occupy them in com- mon. The only unity required between them is that of posses- sion. Excepting the common possession the position of a ten- ant in common is the same as if he owned a separate piece of land. A widow has her dower or its equivalent and a husband has his curtesy in the undivided interest. A tenant in common can convey his interest and it passes to his heirs in case of in- testacy, or according to his will in case of testacy. It is subject to judgments against him and is bound by mortgages made by him. A tenant in common will have the right to have partition proceedings whereby he may obtain a separate property or its equivalent in money by a charge or from a sale. If the real es- tate cannot be divided and if a tenant in common does not take property at the valuation it has to be sold as provided by the partition laws. Estates in Eee Simple. 266. An estate in fee simple is a full ownership. One of the incidents is that it passes to heirs in case of intestacy. A 26 Leet V. Miller, 6 Pa. Dis., 725. 27 Bramberry's Est., 156 Pa., 628. 28 Bramberry's Est., 156 Pa., 628. DEVISES. Ill man will have his curtesy and a woman will have her dower or right as widow therein and the owner will have the right of unlimited alienation. A condition, in a conveyance or devise in fee-simple against alienation generally is void. In certain cases, however, there may be provisions for a trust. In deeds it is necessary to use the word "heirs" to create a fee-simple, but this rule is not applicable to devises. In wills, any expressions, showing an intent to give a full absolute estate, will pass the fee. Devise Will Pass the Whole Estate if None Given Over Under Act of 1833. 267. Under the Act of April 8, 1833, all devises of real es- tate pass the whole estate of the testator in the premises de- vised, unless it appears by a devise over, or by words of limi- tation, or otherwise, that the testator intended to devise a less estate.^^ Construction of the Act of 1833. 268. In construing the Act of April 8, 1833, Section 9, it has been held that to reduce a devise of real estate, to less than a fee, the intention must appear on the face of the will, and when it is doubtful whether the restriction is to less than a fee applies to a devise, or some other gift in a will, then the declara- tion of the statute shall prevail.*" There was a devise as follows : "I give, devise and bequeath to my wife, Mary Kane, my dwelling house on Tenth Street and provided she does not marry ; in case she does marry then she is to leave the premises without anything, when the same shall go to my children." The orphans' court held that a fee passed under the Act of April 8, 1833, Sect. 9.*^ An Estate in Pee by Giving to Heirs of Devisee. 269. A devise for life may be enlarged to a fee-simple by a limitation upon the death of the devisee to his heirs. Such lim- 29 I P. & L. Dig., 1446, Sect. 9, P. L., 249; Schuldt v. Herbine, 3 Pa. Su- per., 65. 30 Shirey v. Postlethwaite, 72 Pa., 39. 31 Kane's Est., 11 Phila., 72. 112 LAW OF WILLS IN PENNSYLVANIA. itation will arise not only from the use of the word "heirs" but from any equivalent expression not restrained in effect by a different intent appearing from the will as a whole.^^ Fee in Case a Devisee for Life Dies Without Leaving Family. 270. A devise to a daughter of the income of real estate "as long as she lives, but should she die without leaving a family" then over, means death without issue or heirs of the daughter's body, and this refers to an indefinite failure of issue, which creates a fee tail in the first taker, enlarged into a fee-simple by the statute.** A Restraint Against Alienation Void in Case of a Fee. 271. Where an estate in fee-simple is devised and the testa- tor attempts by a condition in the will to prevent its alienation except by will, the estate in fee-simple passes to the devisee, and the condition against alienation is void. The Word Heirs Not Necessary to Pass Fee by Will. 272. The rule requiring the use of the technical word "heirs" in order to pass a fee has always been less strictly ap- plied to the case of wills. Where lands are devised by will in terms which indicate an intention to pass all the testator's es- tate, a fee if the testator has it, will pass without the use of the word "heirs." ** Devise Over After a Fee Intended to Prevent a Lapse. 273. There was a devise to a daughter in fee and it was provided by codicil, that if she should die without heirs, then over. It was held, that as she survived the testator, the pro- vision in his codicil did not come into operation, and she took a fee according to Mr. Jarman, who remarked "that where an estate in fee is followed by apparent inconsistent limitations, the whole has been reconciled by reading the latter disposition as applying exclusively to the event of the prior devisee in fee dy- 32 Seybert v. Hibbert, 5 Pa. Super., 537. 33 Beilstein v. Beilstein, 194 Pa., 152. 34 Morrison v. Semple, 6 Bin. (Pa.) 94. DEVISES. 113 ing in the testator's lifetime, the intention being, it is con- sidered, to provide a substituted devise in the case of lapse.^' Where there is an absolute devise followed by a proviso that if the devisee "should die without children, grandchildren or wife living" then over, the words quoted, in the absence of a contrary intent shown in the will, refer to the death of the devisee during the lifetime of the testator, and the devisee takes an unrestricted fee.^* A Devise in Fee Restrained by Subsequent Expression. 274. Although a testator, having given an estate in fee-sim- ple, cannot denude it of its incidents and properties, he never- theless by subsequent expressions in his will, may restrain the generality of the devise, and convert what otherwise would have been a fee-simple, into an inferior interest. There was first a devise in fee-simple to a daughter, but afterwards, an intent was evidenced not to create an estate to which curtesy was incident and consequently issue took by purchase.*^ A Condition Against Devisee's Debts Void in Case of a Devise in Fe^. 275. Where an estate in fee-simple is devised, a condition that the same shall not be liable for the devisee's debts is void.^^ Devise to Heirs When Persons Stand in Tbat Relation. 276. A testator devised as follows: "I bequeath to my daughter, C. M., in trust for her sole and separate use, and benefit, during her lifetime, not liable to the debts or engage- ments of her husband, T. M., reversible after her death to her children, if any surviving, or issue of such children, and in case of no children, or issue of children, the below-men- tioned property, house . to return to my relatives and law- ful heirs." Held, that C. M., took an estate in fee in the prem- ises devised. That if the remainder be to the same persons standing in the relation of heirs, general or special, of the ten- 35 Fahrney v. Holsinger, 65 Pa., 388. 36 King V. Frick, 135 Pa., 575 ; Fulton v. Fulton, 2 Grant, 28. 37 Shalters v. Ladd, 141 Pa., 349. 38 Kaufman v. Burgert, 195 Pa., 274. 114 ^^^ °^ WILLS IN PENNSYLVANIA. ant for life, the law presumes them to take as heirs, unless it unequivocally appears that individuals, other than persons who are to take simply as heirs, are intended.^® Devise "to My Legal Heir" for Life and Bemainder to His Heirs. 277. Testator, after giving a life estate to his wife, directed as follows, "and after her death or marriage to my legal heir during his natural life, and after his death, to his heirs and as- signs forever." Testator left one child, a son. Held, that un- der the rule in Shelly's case, the son took an estate in fee- simple.*'* Devise in JFee in Case of Condition to Pay Taxes. 278. A testatrix devised real estate to her nephew "for and during the term of his natural life upon condition to keep the same in good repair and also pay all the taxes thereon during said term, and after his decease I give and devise the said premises unto his then surviving heirs in fee-simple. It was held, that the nephew took a fee-simple in the land.*^ Devise to Son for Life and Remainder to Children and in Default of Children to His Heirs, a Fee. 279. There was a devise to a son "to be held by him for his own use during his life, the same to descend to his children, or in default of children, to his legal heirs." This creates in the son an estate in fee-simple.*^ Devise in Fee With Direction to Convey to Another. 280. Real estate was devised to a son in fee-simple with full power at any time during his life to convey the same in fee- simple to another son; and in case of his failure "so to con- vey" then after his death over. It was held that the first de- visee took an estate in fee-simple, not to be cut down by the provisions following.*^ 39 McKee v. McKinley, 33 Pa., 92. 40 Reutter v. McCall, 192 Pa., 77. 41 Heister v. Yerger, 166 Pa., 445. 42 Brinton v. Martin, 197 Pa., 615. 43 Rea V. Bell, 147 Pa., 118 DEVISES. 115 Defeasible Fee in Case of a Devise to Wife as Long as She Sball Bemain a Widow. 281. There was a devise reading as follows: "I will and be- queath all my real and personal property to my beloved wife, Mary, to have and to hold the same for her own proper use and behoof as long as she shall remain my widow, and if she should get married then she shall only be entitled to one third in said property, the balance" as devised. It was held that a widow took a fee in the whole estate defeasible as to two-thirds upon her remarriage, that not having married a conveyance gave an indefeasible estate to the grantee.** A Devise to Wife of a Fee Simple Notwithstanding Devise of Part Undisposed of by Wife. 282. A testator directed as follows: "I give and bequeath unto my wife all my estate, both real, personal and mixed in fee-simple, to own, use, enjoy and dispose of the same as she may deem proper and right, the same as I might or could do if living. I further hereby order and direct whatever real estate that may not be sold or disposed of by my said wife in her life- time that the same shall, as soon as conveniently be done after her death, sold and converted into money. . . . . I give and bequeath to my three children, Rachel, Margaret and David, the residue of my said estate, after the death of my said wife, and after the bequest to my grandson, Henry Evans, to be divided into three shares." It was held that the widow took an absolute estate in fee-simple in the testator's lands. The following is an extract from the opinion : "We think it quite clear that every clause of this will which is supposed to limit or restrain the effect of the devise in fee- simple to the wife of the testator, has been adjudged in numer- ous decisions heretofore made. In Jauretche v. Proctor, 48 Pa., 466, which is the leading case, the words of the third ar- ticle in that case were an absolute prohibition against any dis- position of the estate by the devisee during her life. We held that it was only a restraint upon the power of alienation which was void as against the fee. The fourth article of the will was almost precisely the same as the residuary item in this. We 44 Redding v. Rice, 171 Pa., 301. Il6 LAW OF WILLS IN PENNSYLVANIA. held it to be a gift, not of the residue of the testator's estate, but of the estate of the devisee unconsumed by her, and hence it would not be considered as being to reduce her fee-simple in the whole. The same is true of the third item of the present will. It is merely a direction to sell whatever of the estate she may not have sold or disposed of during her life." *^ Tee Simple Estate by Use of Technical Language. 283. When a testator uses the words without explanation or qualification which according to a settled rule of law, import an estate tail or a fee-simple, the legal meaning will prevail as to the actual meaning of the testator. There was a devise to four sons of a farm during their lifetime, providing that if any of them should die without heirs the share of the de- ceased should be divided amongst the surviving ones, and at their death divided among their children and so on from one generation to another. It was held that the failure of issue was an indefinite failure of issue. That devisees took an estate tail converted by statute into a fee-simple.*® A devise for life may be enlarged to a fee-simple by a limi- tation, upon the death of the devisee, to his heirs, or to a fee tail by a like limitation to the heirs of the body such limitation will arise not only from the word "heirs," or "heirs of body," but from any equivalent expression not restrained in effect by a different intent appearing from the will as a whole. Examples of these results are numerous. Thus a fee simple has been cre- ated by the following limitations upon the death of the life tenant : "With remainder over to the heirs in fee :" "To the law- ful heirs of him the said A, and wife in fee simple :" "To be equally divided among them the right heirs of my said niece :'' "Reversible after her death to her children, if any surviving or issue of such children :" "To such persons as at the decease of the said E. shall and may be her heirs or legal representa- tives :" "To such person or persons as should be her right heirs, their heirs, executors, administrators and assigns forever, in such proportions as they would be entitled to in case she had 45 Evans v. Smith, 166 Pa., 625. 46 Seybert v. Hibbert, 5 Pa. Super., S37. DEVISES. 117 died intestate seized and possessed of the property in her own right :" "To such person or persons as would be entitled to the same if the said H. had died intestate seized of the said prem- ises in fee simple, and in such manner and for such quantity of estate as such persons would in such case be entitled to by law :" "To such person or persons as would be entitled to the same in case my said daughters had survived their respective husbands and departed this life intestate seized thereof in fee :" "At their death shall descend to their children, if any, if no children, then to descend to the brothers and sisters and their children." *^ The Rule in Shelly's Case. 284. Where the ancestor takes an estate of freehold and in the same instrument an estate is limited by way of remainder either mediately or immediately to his heirs or heirs of the body the word "heirs" is a word of limitation and not of pur- chase and therefore the ancestor takes an estate in fee simple or in tail as the case may be.*^ Overthrows Life Estate Contrary to Intention. 285. When by deed or will an estate in land is given to one for life and at his death the remainder to his heirs, the estate of the life tenant is enlarged to a fee ; the two estates are merged in one and the first taker takes the whole. The true test in the application of the rule is, did the grantor or donor intend that the remainder men should take as heirs of the life tenant. The thing to be sought out is not the persons who are to take the remainder, but the character in which the donor intended they should take; nor the intention that the first taker should have only a life estate ; for the intention must be overthrown, if apt words are used to bring the case within the rule.** 47 Seybert v. Hibbert, 5 Pa. Superior, 537 ; Doebler's Appeal, 64 Pa., 9 ; Auman v. Auman, 21 Pa., 343; Physics' Appeal, 50 Pa., 128; McKee v. McKinley, 33 Pa., 92 ; Ralston v. Wain, 44 Pa., 279 ; Nice's Appeal, 50 Pa., 143 ; Dodson v. Ball, 60 Pa., 492 ; Yarnall's Appeal, 70 Pa., 335 ; Potts v. Kline, 174 Pa., 513. 48 I Hilliard on Real Property, 516. 49 Carson v. Fuhs, 131 Pa., 256. Il8 LAW OF WILLS IN PENNSYLVANIA. The Remainder Must be to the Whole Line of Heirs. 286. To bring a devise within the rule in Shelly's case, the limitation in remainder must be to the whole line of inherit- able blood; wherefore the rule does not apply to a devise of income to a daughter for life, with a remainder over to her heirs exclusive of a mother.^" When Limitations to Heirs Mediate. 287. Where a limitation to heirs is immediate, an entire es- tate of inheritance is given, but wheri it is mediate and an- other estate is interposed between the estate for life and the re- mainder, the tenant takes an estate of inheritance, not to be exe- cuted in possession until the intervening estate terminates, unless the mesne estate is less than a freehold, when the subse- quent limitation vests immediately.^^ The Word Heirs Not Wecessaiy. 288. The word "heirs" may be limited or modified by other unequivocal expressions in a will; and other words than that of heirs may have the effect of bringing the case within the rule. Any form of words sufficient to show that the remain- der is to go to those whom the law points out as the general or lineal heirs of the first taker would enlarge the estate of the life tenant into a fee by implication. Estates Must be of the Same Quality. 289. The rule in Shelley's case does not apply unless both es- tates for life and in remainder are of the same quality. The rule does not apply when an equitable estate for life, is fol- lowed by a legal remainder.^^ A Direction to Sell and Divide Among Heirs Does Not Prevent Oper- ation. 290. A testator devised the use of a farm "to my eldest son, C, during his life, and to his heirs to the third generation the 50 Kuntzleman's Est., 136 Pa., 142; Jones v. Jones, 201 Pa., 548. 51 Hilliard on Real Property, (3 Ed.), 641. 52 Bacon's Appeal, 57 Pa., 504; Eshbach's Est., 197 Pa., 153. DEVISES. iig same use, then the property to be sold and divided equally among the heirs of C." It was held, that it was the intention of the testator, that the property should go to C and his heirs, and hence under the rule in Shelly's case C took a fee.^^ The Words "Descend to Their Children" Mean Heirs of Children. 291. There was a devise: "To my son, Francis, I give and bequeath the old Schrack farm." This was followed by a provision that "the real estate bequeathed to my sons, Francis and Charles, shall be for their use and support during their na- tural lives, and at their deaths shall descend to their children, if any; if no children, then to descend to the brothers and sis- ters and their children. It was held that the devise standing alone gave to Francis a fee both by the Act of April 8, 1833, and because of a charge made for its value. That any words sufficient to show that the remainder is to go- by descent tw those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate for life of the first taker to a fee. That the word "descend" used meant going to heirs. That a fee simple passed.^* A Limitation to Descendants of Bemaindermen Indicates a Koot of New Succession. 292. In case of a devise of land to one "during her natural lifetime .... and at her decease the same to go to her children and their descendants," the devisee takes but a life estate, the word children being used as a word of purchase and not of limitation. The limitation to the de- scendants of the remaindermen shows that it was the intention of the testatrix that the children should become the root of a new successison and take under the will as purchasers and not as heirs.®^ A Devise to One for Life and Her Heirs but Over and to be Sold if She Leaves Wo Heirs a Fee. 293. A devise of land to a daughter "for her own use during 53 Stigers V. Dinsmore, 193 Pa., 482. 54 Potts V. Kline, 174 Pa., 513. 55 Giffin's Est., 138 Pa., 327. ' I20 LAW OF WILLS IN PENNSYLVANIA. her natural life, and provided she leaves no heirs, in that case said property to be sold and the proceeds divided amongst the brothers and sisters and their heirs" creates a fee simple.^* Qualified or Base Fees. 294. A base or qualified fee is a fee of which the duration depends upon the concurrence of collateral circumstances which qualify and debase the purity of the grant. When an es- tate is conveyed in fee for a specified purpose "and no other" the fee is a base fee determinable upon the cessation of the use of the property for that purpose.^'^ Examples of Base Fees. 295. A grant in fee simple to county commissioners of land for the use of the inhabitants of Delaware county to ac- commodate the public service of the county, was held not to be a base fee. A devise of land to a religious body in fee to "build a meet- ing house upon" was held to pass an unqualified estate. A grant to a congregation for the benefit, use and behoof of the poor of said congregation forever and for a place to erect a house of religious worship for the use and service of said con- gregation and if occasion shall require, for a place to bury their dead was held not a base fee.^* TTpon Determination of Base Fee Property Reverts. 296. Upon the determination of a base fee the property re- verts to the grantor. In the meanwhile the estate is out of him and all that remains to him is a mere possibility of reverter.^" This mere possibility is capable of transmission to grantees and will pass to them under a conveyance of the reversion.®" 56 Reimer v. Reimer, 192 Pa., 571. 57 Slegel v. Lauer, 148 Pa., 236. 58 Kerlin v. Campbell, 15 Pa., 500; Griffiths v. Cope, 17 Pa., 96; Brendle •V. German Reform Congregation, 33 Pa., 415. 59 4 Kent's Com., 10. 60 Scheetz v. Fitzwater, 5 Pa., 126. DEVISES. 121 The Origin and Nature of Estates Tail. 297. A conditional fee is a limitation of an estate to some particular heirs of a man, exclusive of others — as, for instance, to the heirs of his body, or the male heirs of his body. This kind of limitation, originally unknown to the common law, gradually at an early period came into extensive use. It was construed by the judges to differ from a fee simple only in the following points: That its duration beyond the life of the do- nee depended upon his having issue, and, when this condition was fulfilled, it became liable to alienation, forfeiture and in- cumbrances, like an absolute estate. The owner might also alienate the estate before the birth of issue, and if the issue were afterwards bom, neither the donor, nor the issue, when born, could reclaim it. When the donee died without having had issue, the donor might re-enter as for breach of condition. From this form of limitation originated estates tail. These were established by the statute of Westminster 2, 13 Edw. I., entitled the statute "de donis conditionalihus." This act, in general, provides that the will of a donor, manifestly expressed in the charter of his gift, shall be observed, and forbids persons to whom the above-named estates are conveyed, from barrin^j their issue and the donor by alienation. Its passage was by the nobility, with the object of perpetuating estates in their fami- lies; and if by virtue of it, the donee die, leaving issue, they shall take the estate; but, if he die leaving no issue, or upon any failure of lineal heirs of the class to which the estate is limited, it shall return back to the donor or his heirs. The effect of this statute is, that whereas the estate was before a conditional fee, and the donor's right of re-entry founded on breach or failure of condition ; an estate tail is viewed as carved out of the inheritance, like any other particular estate, and upon its expiration by limitation, the donor or his heirs re- enter like any other reversioners.®^ A Devise to One for Life and After His Death to His "Children or Legal Heirs" a Tee Tail. 298. A devise of realty to one for life with the right to the 61 I Hilliard on Real Property (3 Ed.) p. 56-57. 122 LAW OF WILLS IN PENNSYLVANIA. proceeds, without right of alienation, and after his death to his "children or legal heirs" vests in the first taker an estate tail, which under the Pennsylvania statute becomes an estate in fee simple.®^ Barred by Deed. 299. An estate, devised by a will becoming operative prior to the Act of April 27, 1855, "^^Y be barred by deed duly ex- ecuted, acknowledged and recorded in accordance with the provisions of the Act of January 16, 1799, 3 Sm. L., 338.^^ Conversion into Estate in Fee Simple by Act of 1855. 300. By the Act of April 27, 1855, estates in fee tail are con- verted into estates in fee simple. Where real estate is devised to one in fee, and afterwards devised over on default of issue of the first taker or equivalent words, or for life and upon the death of the life-tenant without issue, or in default of issue, or without leaving issue, an indefinite failure of issue is declared by the law to be intended. A fee tail is in such case vested in the first taker, which by virtue of the Act of April 27, 1855, is converted into an estate in fee.** Contingent Interests After an Estate Tail Cut Off by Deed. 301. A contingent remainder or an executory devise limited after an estate tail is cut off by a deed made to bar the entail under the Act of January 16, 1799.®^ Estates Tail Descend According to Common Law. 302. Estates tail are not within the intestate act of 1833 and descend according to the course of common law. Definition of the Word Issue. 303. The word issue in a will prima facie means "heirs of the body" and, in the absence of explanatory words showing that it was used in a restricted sense, is to be construed as a 62 Sheely v. Neidhammer, 182 Pa., 163. 63 Cochran v. Cochran, 127 Pa., 486. 64 I P. & L. Dig., 1882, P. L., 368, Sect. 1 ; Ness v. Ramsey, 155 Pa., 628. 65 Linn v. Alexander, 59 Pa., 43. DEVISES. 123 word of limitation. But if there is anytliing on the face of the will sufficient to show that the word was intended to have a less extended meaning, and to be applied to children or de- scendants of a particular class, or at a particular time, it is to be considered as a word of purchase and not of limitation, in order to effectuate the intention of the testator.^* Devise in Fee With a Devise Over in Case of Dying Without Issue. 304. In case of a devise of the testator's residuary estate to a daughter "to be held by her in fee simple : Provided, never- theless, that in case she should die without lawful issue, then to be divided equally among the children of the testator's brother," it was held that there was an indefinite failure of issue intended and an estate tail was created enlarged to a fee simple by the Act of April 27, 1855.®'^ Construction of Words, "Dying Without Issue," &c., by Act of 1897. 305. "In any gift, grant, 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 im- port either a want or failure of issue of any person in his life- time, or at the time of his death, or an indefinite failure of issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not indefinite failure of issue, unless a contrary intention shall appear by the deed, will or other instrument in which such gift, grant, de- vise or bequest is made or contained." ®* Application of the Act of 1897. 306. "This act shall not apply to any deed, will or other in- strument made before the first day of July, 1897 ; and every will re-executed or republished, or revived by any codicil, shall for the purpose of this act be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived." ®^ 66 O'Rourke v. Slterwin, Testator, 156 Pa., 285. 67 Ray V. Alexander, 146 Pa., 242. 68 Act of July 9, 1897, Sect, i, 3 ?• & L. Dig., 262, P. L., 213. 69 Act of July 9, 1897, Sect. 2. 124 LAW OF WILLS IN PENNSYLVANIA. The Great Importance of th.e Act of 1897 as to Future Wills. 307. The confusion, blunders, disastrous results and litiga- tion which have been caused by the use of the words "dying without issue," and the like, have been very great and the Act of 1897 was passed as a remedy. The act of course will be fol- lowed by decisions as to its meaning and application. When future estates are made to depend upon the death of issue it seems that great care should be exercised by counsel to see that the intent of the testator is ascertained and clearly expressed and that any litigation will be avoided. As to wills made be- fore the act, the old evils and dangers will still linger and the old decisions of the courts will have to be considered, especi- ally in the examination of titles. Dying Witliout Children During Lifetime of Widow. 308. There was a devise to a widow for life and after her decease to a daughter, her heirs and assigns, but in case the daughter should die without child or children, then to broth- ers and sisters. It was held that the words "should die without child or children" were intended to mean, die without child or children during the lifetime of the testator's widow, and the daughter, Hannah, upon the death of the widow, became seized of an indefeasible estate in fee simple in the property so de- vised to her.'"' Where the Word Heirs Used as Children. 309. A gift to one, and "if he die without issue" or "on fail- ure of issue," or "for want of issue," etc., then over, looks to an indefinite failure of issue ; but the courts have seized with avid- ity upon any circumstance, however trivial, denoting an inten- tion to fix a contingency at the time of death. A testator gave to his grandson, Albert, an equal share of his estate, real and personal with the testator's children. But if said Albert should die before he has any heirs, then his share shall revert back among my other heirs. Albert survived the testator, but died intestate, leaving his father to survive him. It was 70 McCormick v. McHligott, 127 Pa-, 230. DEVISES. 125 held that the word "heirs" was not used in its technical sense, but in the sense of children, and the contingency upon which the gift over was dependent, was to happen, by the very terms of the will "before" the death of Albert. A definite failure of is- sue was therefore intended and the limitation over was effective to carry the gift to the testator's other heirs.''^ A Limitation over to Persons in Being a Definite Failure of Issue. 310. A limitation over by will to persons in being after the death of the first taker without issue raises a strong presump- tion that the testator did not contemplate an indefinite failure of issue.'^^ As to the Words "Dying Without Leaving Issue" Intention Must Govern. 311. The words "die without issue" presumably refer to an indefinite failure of issue; but this presumption will yield to a contrary intent apparent from the whole will. It is the testa- tor's actual intent that must govern and where that is clear all technical rules of construction must give way to it.'^^ The Words "And if None" Mean an Indefinite JFailure of Issue. 312. There was a devise to a son of the use and occupancy of a farm for life and at his death the use and occupancy of the farm was to be continued to his issue, if he should so have, and if none then to the next of kin and so on as the laws of the Commonwealth will permit. Held that the will gave a life estate to the son, and after his death an estate in fee to the son's issue, and in default of issue to the next of kin ; and that by the operation of the rule in Shelly's case and the Act of April 27, 1855, the son took an estate in fee. There was a life estate given to the son and after his death a devise to his issue and in default of issue to the next of kin. It was held that the word issue was a word of limitation and gave an es- 71 Miller's Est, 14S Pa-, 561. 72 Stoner v. Wunderlich, 198 Pa., 158. 73 Cameron v. Coy, 165 Pa., 290. 126 LAW OF WILLS IN PENNSYLVANIA. tate tail which became a fee simple. That the words "and if none" meant an indefinite failure of issue.''* Children Meant in Case of a Devise Over in Case of Death. Without Issue or Issues of Children. 313. A testator directed that certain real estate should be sold and the proceeds invested in mortgages the interest to be regularly paid to the daughter "free from the control, liabili- ties and debts of her husband, and in case of her death without issue or issues of her children then reversible to my right con- sanguinary heirs." It was held that the daughter took a life estate only, the word issue being equivalent to children.'^® A Devise to Issue of a Deceased Child Iilay Mean to Children. 314. A testator devised land to Benjamin "during the period of his natural life, remainder thereof to his issue, if there be any at the time of his decease, in fee simple, the issue of any de- ceased child of the said Benjamin to take the same share and es- tate as the parent would have been entitled to if living at the death of said Benjamin. But on failure of issue of said Benja- min or of his deceased child or children, at the time of his death, then I direct that the said real estate above devised to said Benjamin for life shall at the time of his decease go to and vest in the heirs at law of me, the said testator, in fee simple," in shares as under the intestate laws. It was held by the word "issue" the testator did not mean "heirs of the body," as a word of limitation, but instead thereof, the children and grandchil- dren of his son, Benjamin. A definite and not indefinite fail- ure of issue was intended, and therefore the devise to Benja- min was but a life estate not a fee tail enlarged by the Act of April 27, 1855, to a fee simple.^* When the Words "Dying Without Heirs" Mean Dying Without Issue. 315. In a devise to children, and, if they should die with- out heirs over to nephews and nieces "heirs" means issue, for 74 Armstrong v. Michener, 160 Pa., 21. 75 Peirce v. Hubbard, 152 Pa., 18. 76 Parkhurst v. Harrower, 142 Pa., 432. DEVISES. 127 the devise over would have been included in the original devise if the word "heirs" had been meant." Bemainders. 316. A remainder is a remnant of an estate in lands or tene- ments, expectant on a particular estate, created together with the same at one time, and by the same instrument, and limited to arise immediately on the determination of that estate, and not in abridgment of it. Both estates subsist at one time, and both are parts of one entire estate. Hence, where the fee simple is first conveyed, this being the whole estate, no re- mainder can be validly limited upon it. No remainder can be limited, because the entire fee passes.''^ A remainder will be accelerated where the life estate is re- voked by the testator or determined by a clause of forfeiture.'^** Bemainders Vested or Contingent. 317. An estate in remainder is an estate limited to take effect and be enjoyed after another estate is determined. Remain- ders are either vested or contingent. Vested remainders (or remainders executed whereby a present interest passes to the party though to be enjoyed in future) are where the estate is invariably fixed to remain to a determinate person after the particular estate is spent. Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect either to a dubious and un- • certain person or upon a dubious and uncertain event ; so that the particular estate may chance to be determined and the re- mainder never take effect. It is not the uncertainty of ever taking effect in possession that makes a remainder contingent. The present capacity of taking effect in possession if the possession were to become vacant, determines and distinguishes a vested remainder from one that is contingent. ^^ Coles V. Ayres, 156 Pa., 197. 78 2 Hilliard on Real Property, (3 Ed.) 512. 78* Langfield's Est., 4 Pa. C. C. R., 82. 128 LAW OF WILLS IN PENNSYLVANIA. The Owner of Vested Interest Treated as in Possession. 318. The testator devised real estate to his wife for life, and after her death to his four children in fee ; one of them, a son, married after the death of the testator and died intestate, leav- ing a widow, but no children. The widow of the testator after- wards died. Held that under the Act of April 8, 1833, the widow of the son had an interest in the real estate and had a right to partition. The son having a vested remainder after the death of the widow it was subject to all the incidents which the statutes have stamped on real estate, as fully as if it had been vested in possession in the son before his death.'^® A Contingent Remainder Must Await the natural Determination of Particular Estate. 319. A contingent remainder must be so limited as to await the natural determination of the particular estate, and not to take effect in possession upon an event which prematurely de- termines it. If limited to commence on such a condition it is void. If limitations on such conditions be made in convey- ances to uses and in wills they are good as conditional limita- tions, or future or shifting uses or executory devises ; and upon the breach of the condition the first estate ipso facto determines without entry and the limitation over commences in posses- sion.^" Devise to Unborn Children Contingent. 320. Where a devise is to one for life with remainder in fee to his children, the estate in remainder is contingent while there are no children bom and while it cannot be known that there ever will be any bom ; but the moment that children are born, there is no longer any contingency, because the condi- tion of the de;vise is met, and the estate in remainder becomes necessarily vested, and the fact that it may be opened to let in after-born children, does not make the estate in remainder contingent.*^ 79 Cote's Appeal, 79 Pa., 235. 80 4 Kent's Com., 249. 81 Keller v. Lees, 176 Pa., 402. DEVISES. 129 Avoiding Intestacy in case Contingent Interest Should Wot Take Effect. 321. If an intestacy accrues by reason of a contingent re- mainder not taking effect, and there being no limitation over, the next of kin and heirs entitled to take the estate are to be ascertained as of the date of the death of the testator, and not at the date of the termination of the contingency.*^ There can be a provision to avoid such intestacy if desired. It vi^ill be well sometimes for a testator to consider virhether he has disposed of his property in any event. There may be successive gifts of property of limited or doubtful duration and eventually it may appear that there is an intestacy as to such property. Estate Contingent When Persons Must be Living at a Certain Time. 322. Where persons must be living at a certain time in order to take an estate, the gift is contingent, because, until that time arrives, the persons who would answer that description cannot be ascertained. If, by the phrase "if they be living/' a qualification is an- nexed to the person, without fulfilling which he will be ineli- gible to take, the gift is uncertain until the condition is met, and is necessarily contingent upon the fact of his living. If, however, it is used to mark the time at which the estate shall vest in possession, so that the children are to take an estate descendible to their issue, which is to be enjoyed by the children at the death of the life-tenant, or by the heirs of their body if they be dead, it carries a vested interest. A testator gave to his wife the income of his residuary estate for life and authorized and empowered his executors to sell the residuary realty at her death, and to divide the proceeds equally between his two children, S and G, "if they be living, or the issue of such of them as may then be deceased." G died in the testator's lifetime, intestate, and without issue. S died before the widow, leaving two sons, one of which died prior to the death of the widow. After the death of the widow S's husband filed a petition for the sale of real estate and division 82 Bell's Est, 147 Pa., 389. 9 130 LAW OF WILLS LN PENNSYLVANIA. of the proceeds. It was held by the Supreme Court that the fee centered in the survivors of S's sons as the one owner. That S's husband as tenant for life in one-fourth of the realty had no such interest as would entitle him to a sale.^^ A testator devised the residue of his estate to trustees until his youngest child who might then be living should attain twenty-one years, and when his youngest child who might be living should attain that age, he gave it to such of his children as might then be living and their heirs. A child who died be- fore that time took nothing under the devise. No vested inter- est was given ; the devises were contingent and became vested — when the youngest child living reached twenty-one, — in such children as were then in life. The provision was not a postponement of the time of enjoy- ment, not a regulation of the interest given. A gift to such a number of persons as may meet a defined description, is not a gift to all the persons whether they meet the description or not.8* When an estate is devised to such children as shall be living at a certain time, without any distinct gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the devise, the devise is contingent, for until the happening of the event there is no person answering the description of the person who is to take.*^ Times in Which, a Contingency XCay Happen. 323. A contingency may happen in the lifetime of the testa- tor or of the first taker or before distribution or the period of enjoyment according to the intent of the testator.^* Vested Bemaiuders to be in After-born Children. 324. A testator devised land to his son, J, to hold the same to him during his natural life, and, after his decease, to his chil- dren lawfully begotten, share and share alike. It was held that 83 Rudy's Est., 185 Pa., 359. 84 McBride v. Smith, 54 Pa., 245. 8s Craig's Appeal, 126 Pa., 223. 86 Morrison v. Truby, 145 Pa., S40- DEVISES. 131 J took an estate for life, with a vested remainder in fee to his children in being at the time of the death of the testator, which opened to let in after-born children.*''^ Gift to Brothers and Sisters After Death of Husband— If Dead to Their Children Vested. 325. The testatrix devised and bequeathed her entire estate to her executor in trust to convert the same into money and to pay the interest and income thereof to her husband, Edward Carstensen, during his life. The will then provides as follows : "And from and after the decease of my said husband, I give, devise, and bequeath the whole estate then remaining to my brothers and sisters; the child or children of any of my said brothers or sisters who may then be dead, to take and receive the shares that his or their parents would have taken if living." It was held that the interest of the brothers and sisters was not contingent upon their surviving the life-tenant, but that it was vested at death of the testatrix. The divesting contingency was not merely the death of the legatee during the continuance of the particular estate but it was his or her death during the period leaving a child or chil- dren. .... There is no provision made in the will for the disposition of the interest of any brother or sister who might die prior to the death of the life-tenant with- out leaving a child or children.®* Executory Devises. 326. An executory devise is such a limitation of a future interest in lands or chattels as the law admits in the case of ' wills, though contrary to the rules of limitation in conveyances at common law. By the executory devise no estate vests at the death of the devisor or testator, but only on the future contingency. When the limitation by devise is such that the fu- ture interest falls within the rules of contingent remainders there is not an executory devise. If land be limited to A for life and one year after his decease to B in fee the limitation to B may 87 Gernet v. Lynn, 31 Pa., 94. 88 Carstensen's Est., 196 Pa., 325. 132 LAW OF WILLS IN PENNSYLVANIA. operate as an executory devise. A makes a devise of a future interest on a certain contingency and until the contingency happens does not dispose of the fee simple, but leaves it to de- scend to his heirs at law.®* Distinction Between Executory Devise and a Contingent Bemainder. 327. An executory devise, is a limitation by will of a fu- ture contingent interest in lands, contrary to the rules of limita- tion in conveyances at law. If the limitation conforms to the rules regulating contingent remainders, it is a remainder, not an executory devise. The distinctions are, first, that by the former a fee may be limited upon a fee; and, secondly, that by an executory devise, a freehold estate may be limited in fu- turo, with no preceding estate to support it. In case of an exec- utory devise, the estate descends till the contingency happens.®" The testator may by his will guard against and provide for an intermediate intestacy. Estates on Conditions. 328. A condition is qualification or restriction annexed to a conveyance, by which, upon the happening or not happening of a particular event, or the performance or non-performance of some act by the grantor or grantee; an estate shall com- mence, be enlarged, or be defeated. Kinds of Conditions. 329. Conditions are either precedent or subsequent; the former must be performed before the estate will vest, the lat- ter enlarge or defeat an estate already created. If in the case of a will, the particular clause in question, or the whole will, indicates that the condition must be performed before the es- tate can vest, the condition is precedent. If the act prescribed does not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is subsequent. In case of devise to a son in fee, "on condition that, after my decease, he become a perfectly sober man ;" if not the property to descend 89 4 Kent, 257 ! Bouvier's Diet., Executory Devise. 90 2 Hilliard on Real Property, p. 579, 581, 584. DEVISES. 133 to his wife and children in fee. It was held that there was a condition precedent.®^ Provision in Kestraint of Marriage Valid in Case of a Limitation Over. 330. A devise by a husband to his wife of real estate pro- vided she remains his widow, but should she marry again, then over, is valid and the condition in restraint of marriage will be upheld.^^ A provision in a will, reducing the widow's share of income in the event of her marriage, is valid and will be sustained.*^* The Kule Against Perpetuities. 331. No interest, subject to a condition precedent, is good unless the condition must be fulfilled, if at all, within the twenty-one years after some life in being at the creation of the interest.®* "An estate may be rendered unalienable for any number of lives in being and twenty-one years and nine months there- after; but all restraints on alienation which exceed that period are void. The rule applies to springing and shifting uses, cre- ated to arise upon or after a limitation in fee simple. The event, on which such estate in fee is to change, must be such that it shall either take place or become impossible within the time above mentioned.®* The rule against perpetuities is directed against future con- tingent interests only and has no reference whatever to vested estates. An interest is not obnoxious to the rule against per- petuities, if it begin within a life in being and twenty-one years thereafter, although it may extend beyond. The remoteness against which the rule is directed, is remoteness in the com- mencement or first taking effect of limitations and not the Cesser or determination of them. When a part of a testator's general scheme is, that the estate shall be kept entire for any unlawful 91 Overseers of Lewisburg v. Overseers of Augusta, 2 W. & S., 65. 92 Lancaster v. Flowers, 198 Pa., 614. 92* Langfield's Est., 4 Pa. C. C. R., 82. 93 Gray on Perpetuities, p. 144. 94 2 Hilliard on Real Property, 620. I '54 LAW OF WILLS IN PENNSYLVANIA. period, no part of the provisions can be sustained, but the es- tate to which such void provisions relate, will vest immediately in the heir. A testator devised his real estate to his executors in trust for a period of seventy-five years, giving to the execu- tors active power in the management of the estate, and directing them to pay all charges against the land and legacies out of the rents and profits. After all his charges and legacies were paid out of the rents, he directed his children to select a trustee, and directed that such trustee should collect the rents and profits of the land, and after paying for repairs and taxes, should distribute the balance to his children and their legal de- scendants until the expiration of the seventy-five years. At the expiration of seventy-five years the trustee was authorized to sell the land and the proceeds were to be distributed to and among all his children, share and share alike, that should then be living and the legal descendants of any of his children that should be then deceased. The legal descendants of such de- ceased children to take, however, only such share and portion of the said proceeds as their deceased parents would have taken if living. Held, first, that the particular estate, the term of seventy-five years given to the trustee, did not violate the rule against perpetuities ; second, that the gift of the ulterior estate in remainder was a future contingent interest repugnant to the rule against perpetuities and therefore void for remoteness; third, that as testator's general scheme was to keep his entire estate for an unlawful period, and as the particular estate was created for this purpose only, the particular estate must fall with the ulterior estate ; fourth, that the testator died intestate as to his real estate which accordingly passed at his death to his heirs at law.^° If by the terms of a deed of trust, the life tenant of realty have a general power of appointment by will, with full power to convey in fee or by mortgage during his lifetime, then though the power of sale be not exercised, a testamentary appointment which would have infringed the rule against perpetuities if read into the original trust deed will not for that reason be adjudged invalid. The power to sell or mortgage, even though Q5 Johnston's Est., 185 Pa., 179. DEVISES. 135 unexersised, renders the life estate destructible ; which element affects the power of appointment by will in view of the rule against perpetuities the same as though the life tenant's estate were an estate in fee.®® A gift by a testator to his brother in trust for his own use for life, etc., and at his death in trust for testator's two nieces for life and the life of the survivor, and upon the death of the ' survivor in further trust for the children and issue of his two nieces, to be paid to them when they attained full age, etc., is not in violation of the rule against perpetuities.^®* A charity may be created in perpetuity or for a term of years. It will not be defeated because created in perpetuity.®^ A devise to living person for life, with the remainder to his unborn chil- dren for life, does not create a perpetuity, and a gift in re- mainder in fee to an ascertained person to take effect after such second estate for life is not void for remoteness.®* How Modified by Statutes. 332. The rule against perpetuities, to-wit, that no interest, subject to a condition precedent, is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest, is unmodified by statute, except as Sect. 9, Act of April 18, 1853, P. L., 507, and Sect. 12, Act of April 26, 1855, P. L., 332, operate in re- straint of accumulation.®® The law prohibits accumulation of income excepting dur- ing the minority of a cestui quC trust, but it was held that where there was a spendthrift trust created for the benefit of a son during life, and the trustee was empowered to pay to the son such part of the income as he thought necessary and to invest the balance if any for his son's benefit; that the accumu- lation was not intended to be permanent, but temporary, and in the interest of judicious management, and did not transg'ress 96 Mifflin's Ap., 121 Pa., 205. 96* Homer's Est., 26 Pa. C. C. R., 383, O. C. 97 Franklin's Admx. v. Philadelphia, 13 Pa. C. C. R., 241. 98 Owen's Petition, 34 W. N. C, 3S4- 99 Lawrence's Est., 136 Pa., 354. 136 LAW OF WILLS IN PENNSYLVANIA. section 9 o£ the Act of April 18, 1853.1 A trustee in case of a spendthrift trust can be authorized in the trust deed or in a will in his discretion to let the cestui que trust have the whole or portion of the trust property. It was held that a spend- thrift trust was not invalidated in a clause giving the trustee a discretion to pay over the legacy to cestui que trust.^ Where a trustee of a spendthrift trust had absolute power in his dis- cretion to pay to cestui que trust his share of the estate ; it was held, that he might pay the share directly to cestui que trust after he had made an assignment for creditors.* No Kestraint Upon Alienation When Interest of Devisee Vested. 333. A testatrix left all her property to her children who may be living at the time of her death, share and share alike subject to the control of her executor and trustee to manage the property as far as possible as her husband had done and equally divide the income and principal arising from the sale of real estate among the persons entitled under the will in such manner as shall seem proper to the executor. In regard to the final distribution of the estate, she directed her executor and trustee, when two-thirds of the persons interested shall so de- mand, to sell the property and divide the proceeds among those interested under the provisions of the will. Held that the trust was an active one for the management of the estate and not in conflict with the law in regard to perpetuities. The mere fact that no time is fixed within which the power of sale must be exercised, does not of itself create a perpetuity as it must be exercised within a reasonable time. Besides it was competent for all parties in interest at any time to defeat the power and take the property discharged thereby.* Iiapsing of Devises. 334. In case of lapsing in case of the death of parents and brothers and sisters in testator's lifetime, see sections as to laps- ing of legacies. 1 Hibb's Est., 143 Pa., 217. 2 Brubaker v. Huber, 13 Pa. C. C. R., 78. 3 Barker's Est., 159 Pa., 518. 4 Cooper's Est., 150 Pa., 576. CHAPTER XII. TRUSTS. SECTION 335. Trusts for the separate use of a married woman. 336. Can only be for a woman married or in contemplation of marriage 337. Upheld without active duties imposed. 338. The income of a separate use trust not liable for the debts, contracts, engagements or as- signments of wife. 339. A fee simple estate with trust for separate use. 340. Husband's curtesy in fee of wife in case of separate use trust. 341. Death or divorce of husband in case of full ownership with separate use trust. 342. Woman cannot sell or mort- gage property held for her sep- arate use. 343. Woman cannot devise in case of a separate use trust. 344. Protection of married wo- man's interest during lifetime. 345. Separate use trust for un- married woman upheld as a spendthrift trust. 346. Definition of a spendthrift trust. 347. There can be a spendthrift trust for a female. 348. Not necessary that a spend- thrift trust should contain specific words. 349. A legacy before payment by executor can be protected by a spendthrift trust. 350. Trustee paying principal to cestui que trust of spendthrift trust. 351. Trust to support remainders. 352. Trust to pay debts. 353. Active trusts. 354. Trust to divide an estate. 355. Dry trusts. 356. Trusts for estates of minor children. 357. Trusts for business. 358. Personal liability of trustees for debts of trust business. 359. Trustee to carry on business cannot make an assignment. 360. Cannot confess a judgment. 361. Trustee authorized to invest in real estate may give purchase money mortgage. 362. Power of surviving trustee to sell. 363. Termination of a trust by agreement of parties. 364. Waiver of trusts. 365. If mere direction to convey title will vest without convey- ance. 366. Provisions for the appoint- ment of trustees. 367. Trustee can only invest in legal investments. 137 138 LAW OF WILLS IN PENNSYLVANIA. Trusts for tlie Separate Use of a Married Woman. 335. The purposes of these trusts are to protect the estates of married women from the control or interference of their hus- bands. Under the laws of Pennsylvania a married woman's property is her own separately. However, she cannot convey or mortgage her real estate without her husband joining in the deed of conveyance or mortgage. Her husband may induce her to dispose of her property according to his recommenda- tion or desire. She can mortgage her real estate to secure the payment of her husband's debts. To protect, the property of a married woman from her husband a testator can devise or be- queath property to a trustee, in trust for her sole and separate use, so that whilst she shall have the use and benefit of the in- come thereof she cannot dispose of the corpus or principal of the trust excepting as the will may provide. Can Only be for a Woman Married or in Contemplation of Marriage. 336. In Pennsylvania a trust for the separate use of a mar- ried woman can only be created for the benefit of a woman mar- ried or in immediate contemplation of marriage with a particu- lar person at the time of the creation of the trust. A subse- quent marriage in the testator's lifetime will not make the trust valid.^ Upheld Without Active Duties Imposed. 337. In case there is a trust for a separate use, and no trustee should be appointed, and no active duties imposed upon the trustee, it will be upheld.^ The Income of a Separate Use Trust Not Liable for the Debts, Con- tracts, Engagements or Assignments of Wife. 338. A trust for the benefit of a married woman protects her estate and the income thereof from any of her debts, contracts or engagements, and she has no power to assign the income thereof before it has come into her hands, in the absence of an express power in the instrument creating the trust.* 1 Quin's Est., 144 Pa., 444. 2 MacConnell v. Lindsay, 131 Pa., 476. 3 Shantz's Est., 7 Pa. C. C. R., 199. TRUSTS. 139 A Fee Simple Estate With Trust for Separate Use. 339. Property can be given to a married woman in fee sim- ple and during the existence of the marriage relation a trust estate for her separate use may be carved out of it.* Husband's Curtesy in Fee of Wife in Case of Separate Use Trust. 340. In case a married woman should have a fee simple in real estate subject to a separate use trust, and the wife should die before the husband, he will have a life estate in the real estate as tenant by the curtesy.** Death, or Divorce of Husband in Case of Full Ownership With Sepa- rate Use Trust. 341. If the married woman is given an estate of inheritance or full ownership subject to a separate use trust, and the only purpose is to protect from her husband, and if he should hap- pen to die, or he should be divorced from the bond of matri- mony, the trust will terminate, and the married woman will be entitled to a conveyance of real estate from the trustee.^ Woman Cannot Sell or Mortgage Property Held for Her Separate Use. 342. The married woman's acts have no application to in- struments creating separate use trusts. A feme covert as to her separate estate held for her by such a trust, has no power of disposition beyond what is given to her by the instrument cre- ating the trust.® Woman Cannot Devise in Case of a Separate Use Trust. 343. Where a separate use trust is created for a married woman and no power of alienation is given she cannot pass the estate by will and a devise to her husband would be invalid though she has the fee.'' 4 MacConnell v. Lindsay, 131 Pa., 476. 4* Freyvogle v. Hughes, 56 Pa., 228. 5 Peoples' Saving Bank v. Denig, 131 Pa., 241. 6 MacConnell v. Lindsay, 131 Pa., 476. 7 Steinmetz Est., 168 Pa., 175. 140 LAW OF WILLS IN PENNSYLVANIA. Protection of Married Woman's Interest During Lifetime. 344. To guard against the contingencies of the termina- tion of a trust for the separate use of a married woman by her death or divorce from her husband there can be a spendthrift trust for her created. This trust could be combined with or without a separate use trust, an active trust and a trust to sup- port remainder, and in such a case it will be well to express the intent that the trust is to continue during the whole life- time of the married woman notwithstanding her present hus- band should die or be divorced. A Separate Use Trust for Unmarried Women Upheld as a Spend- thrift Trust. 345. Where a separate use trust fails because the beneficiary is not married or in contemplation of marriage, there can be a valid spendthrift trust. There can be a trust for the pro- tection of a female from her own improvidence.^ Definition of a Spendthrift Trust. 346. A spendthrift trust is where a settlor or a testator grants or gives property to a trustee to protect the principal corpus or income thereof or either of them from the debts, creditors or liabilities of the cestui que trust. The trust may be for life, for a term of years or it may exist and be operative where an absolute estate is given and it is the intention of the testator that the property shall be protected until it comes into the hands or possession of the cestui que trust. There Can he a Spendthrift Trust for a Female. 347. A trust in favor of a daughter, during the life of the widow, not to be liable for the daughter's debts, the principal to be paid to the daughter after the widow's death, is a spend- thrift trust.» Not Necsssary That a Spendthrift Trust Shotild Contain Specific Words. 348. It is not necessary that a spendthrift trust shall contain 8 Shell's Est, 15 Pa. C. C. R., 372; Francis' Est., 17 Pa. C. C. R., 163. 9 Wayne's Est., 47 Leg. Int., 465. TRUSTS. 141 certain words providing specifically that the income shall not be subject to debts or liabilities.^" A Legacy Before Payment by Executor Can be Protected by a Spendthrift Trust. 349. It was held that a legacy upon condition that in the hands of the executor, it should not be liable to the debts of the legatee, but should be paid directly to the legatee by the execu- tor, without diminution for the payment of indebtedness was aa express spendthrift trust.*^ Trustee Paying Principal to Cestui Que Trust of Spendthrift Trust. 350. A provision in a will which creates a spendthrift trust, giving the trustee a discretion to pay the legacy in whole or in part to the beneficiary, does not destroy the trust.-'^ Trust to Support Remainders. 351. An active trust to support remainders upheld. It was held that a trust for the sole and separate use of a woman un- married and not in contemplation of marriage, could not be sus- tained simply because active duties have been imposed on the trustee. But that there could be a trust to protect the corpus of the estate for the parties entitled in remainder.^* Trust to Pay Debts. 352. A testator may create an express active trust of his es- tate, real or personal, which shall subject it to the claims of creditors.^* Active Trusts. 353. Where an active trust is created to give effect to a well defined lawful purpose of a testator in relation to his family, the trust will be sustained irrespective of coverture and 10 Winthrop Co. v. Clinton, 196 Pa., 472. 11 Beck's Est, 133 Pa., 51. 12 Brubaker v. Huber, 13 Pa. C. C. R., 78, s. c, 2 Pa. Dis., 703 (C. P.). 13 Kuntzleman's Est., 26 W. N. C, 445 S. C. 14 Seitzinger's Est, 170 Pa., 531. 142 LAW OF WILLS IN PENNSYLVANIA. whether the cestui que trust be sui juris or not, if a clear purpose appears to protect the corpus of the estate for the ul- timate devisee. In a trust for coverture it is unessential that the trust imposes active duties upon the trustee. These duties are only subsidiary to the main purpose. If the trust fails these active duties are dispensed with. But where there is a devise for life and not during coverture and of income only and the remainder is not to all the heirs of the cestui que trust, so that the rule in Shelley's case will apply, the trust will be sustained. A devise to trustees in trust to lease and let real estate, to col- lect and receive the rent, interest and profits, and to pay over the net income, is an active operative trust and the estate vests in the trustee; the use is not executed even though all the cestui que trust are sui juris. The presence of an active trust may be to receive and pay over profits ; to dispose of the property ; to pay rents or apply them for maintenance ; to make repairs ; to manage, etc.^^ A testator gave the residue of his estate in trust to collect "the rents, income and interest," and pay one-fourth to each of his children during their lives and on the death of either then to convey, etc., the fourth of the principal to such person as the de- ceased child by will, etc., might direct or appoint and in case of the death of either child without appointment, to grant, etc., a fourth of the principal unto such persons as would have been entitled to same if the said deceased child had been legally seized of the same premises in his or her own right and died intestate. These were held valid trusts. In this case the corpus of the estate vested in the trustees and was put under their control. The gifts to the three children were only of the income. Their estates in the income were only for life and without regard to coverture. The principal was devised to the persons who would be entitled to it under the intestate law. It was held that there was an active operative trust following a manifest intention essential to carry it into effect, by holding the corpus of the property itself in the hands of the trustee, during the lives of the children, irrespective of any purpose in regard to coverture, to enable them to receive and apply the IS Barnett's Appeal, 46 Pa., 392 ; Kuntzleman's Est., 136 Pa., 142. TRUSTS. 143 income only to the children, and then to carry over the princi- pal or corpus to their issues at their deaths. It was held that without maintaining the trust, this plain and lawful intent could not be carried into execution.^® Trust to Divide an Estate. 354. It has been held that a trust is not illegal as a restraint upon alienation, when there is a vested interest in the devisee, which he can sell or dispose of at pleasure; and it is only the time of enjoying of the profits which is postponed. A testatrix left all her property to her children living at the time of her death, share and share alike, subject to the control of the execu- tor, and the executor was to manage the property as far as pos- sible as her husband had done, and equally divide the income and principal arising from the sale of real estate among the persons entitled under the will, in such manner as should seem proper to the executor. In regard to the final distribution of the estate she directed her executor and trustee, when two- thirds of the persons entitled should so demand, to sell the property and divide the proceeds among the heirs under the provisions of the will, and the trust was sustained.^ ^ Dry Trusts. 355. In giving property in trust it is necessary that there shall be some purpose which the law regards as sufficient for a trust. The mere use of such words as "in trust," or "for the use of" will not be sufficient. When there is no such purpose the intended trust is called a dry trust or when the purpose is obtained the trust is called an executed trust. A testator directed as follows : "I give and bequeath to my daughter, Amanda E. Baker, five hundred dollars to be placed in the hands of James Calvin Baker, my son, for the use of her during her lifetime and to act as trustee for her." It was held that the daughter took an absolute and not a life estate in the legacy. No separate use was created. No active duties 16 Earp's Appeal, 75 Pa., 119. 17 Cooper's Est., 150 Pa., 576. 144 LAW OF WILLS IN PENNSYLVANIA. were imposed upon the trustee. No gift over to take effect on her death was made.^® When the duty of trustees is merely to divide a residue among charities, etc., there will be a dry trust as the duty may be equally performed by executors under the direction of the court.^® Where the will creates a trust in favor of persons who are under no legal disability, and are absolute owners by virtue of a gift of the income without qualification as to the period of enjoyment, and without limitation over of income or princi- pal, and to whom a power of sale is given in conjunction with the trustees, the trust is executed and inoperative.^" Trusts for Estates of Minor Children. 356. It has been held that a married woman may create a trust for a minor child as to the property which passes under her will either by express words or by implication and such trust during the minority of the child is valid, even if the entire beneficial interest is given to the cestui que trust.^^ Trusts for Business. 357. Trust property which has been embarked in trade is primarily liable to creditors for the debts of the business and will be applied as far as it will go to the liabilities. When a trust property is put into business under the directions of a tes- tator, and the same becomes insolvent, all of its creditors stand upon an equality ; and a creditor who has received a judgment for the purpose of liquidating his claims, has no right to en- force such judgment by execution, to the destruction of the estate of the rights of other creditors. Upon the insolvency of such a trust estate the trust comes to an end, and it is the trustee's duty to file his account and to terminate the trust by the distribution of its assets among the 18 McCune v. Baker, 155 Pa., 503. ig Pepper's Est., i Pa. Dis. Rep., 148. 20 Marshall's Est., 11 Pa. C. C. R., S58; s. c, i Pa. Dis. Rep., 313. 21 Cotton's Est., 19 Pa. C. C. R., 247, O. C. Phila. TRUSTS. 145 creditors, pro rata. Creditors of such an estate can compel the trustee to file an account.^^ Personal liability of Trustees for Debts of Trust Business. 358. The creditors not only have the whole fund embarked in trade as security, but the personal responsibility of the indi- viduals with whom they deal, the only security in ordinary transactions of debtor and creditor.^* Trustee to Carry on Business Cannot Make an Assignment. 359. A trustee appointed under a will to carry on the busi- ness of a testator, cannot in the absence of express authority, make an assignment for the benefit of creditors. He cannot delegate his powers as trustee to a trustee for creditors under an assignment.^* Cannot Confess a Judgment. 360. A trustee appointed under a will to carry on the busi- ness of the testator cannnot confess a judgment to a creditor of the trust estate so as to give such a creditor a preference over other creditors in the distribution of the trust property ; in such case the other creditors may file a creditors' bill to compel the trustee and the preferred creditors to account. The creditors will occupy the position of cestui que trusts. The general or un- secured creditors of an insolvent trust estate can have set aside a conveyance made, and judgments confessed by the trustee for the purpose of giving a preference to other creditors.^^ Trustee Authorized to Invest in Beal Estate May Give Purchase Money Mortgage. 361. A trustee, who is empowered to sell land and invest the proceeds in other real estate, may, upon re-investment give a purchase-money mortgage for a balance unpaid.^® 22 Woddrop V. Weed, 154 Pa., 307. 23 Woddrop V. Weed, 154 Pa., 307. 24 Woddrop V. Weed, 154 Pa., 307. 25 Young V. Weed, 154 Pa., 316; Woddrop v. Weed, 154 Pa., 307. ^ Gernert v. Albert, 160 Pa., 95. 1^6 LAW OF WILLS IN PENNSYLVANIA. Power of Surviving Trustee to Sell. 362. Where a trust to sell land is conferred upon trustees by name and does not in terms require the whole number to act, the trust is well executed by the survivors.^'^ Termination of a Trust by Agreement of Parties Interested. 363. If all parties interested in a trust agree the court has power to enter a decree that the trust be terminated. While under the maxim which permits every one to relin- quish a provision intended for his benefit a trust may be set aside by request of all parties for whose protection it was cre- ated this can only be when it is clear that the application is made by all who now or in the future can have any interest.^^ If a testator should desire to prevent such a result it is sug- gested that by a prohibition in the will, the creation of a spend- thrift trust or the gift of contingent interests or a condition the desire may possibly be carried out. A testator directed that the residue of his estate should be equally divided between his nephews and nieces, with the direc- tion that the share of a married niece should be held by the executors, they to invest the same and pay over the interest to the niece during her life, and at her decease to pay the principal to her daughter, to whom he gave the same. It was held that the trust was not a separate use trust, and that it would be terminated by a conveyance of the daughter's interest to her mother. The niece being the owner of the fund for life there was no valid reason for continuing the trust to invest and pay the interest thereon.^® When a trust exists to pay the income for life to one per- son, with the remainder to another in fee, and the chief object and purpose of the trust seems to be to preserve the corpus of the estate for the remainderman, a conveyance of the remain- derman to the tenant for life will terminate the trust; and the 27 Hunter v. Anderson, 152 Pa., 386. 28 Thompson's Est., 10 Pa. C. C. R., 472 ; Culburtson's Appeal, 76 Pa., 145 ; Bayard's Est., 6 Pa. Dis, Rep., 206. 29 Sharpless' Estate, 151 Pa., 214. TRUSTS. 147 life tenants will be entitled to divide the trust between them ab- solutely free of all trusts.^" Waiver of Trusts. 364. If all the beneficiaries of a trust are of full age, the only persons interested therein and under no disabilities they may sometimes waive and dispense with the trust. It seems that the beneficiary of a spendthrift trust or of a trust for a separate use could not do so. If Mere Direction to Convey Title Will Vest Without Conveyance. 365. Where the will of the testator directed that at the death of the survivor of his two daughters, to whom the income for life was given, his real estate should be conveyed by his execu- tors to the children of one of his daughters, it was held that a conveyance by the executors is unnecessary to vest the title.*' Provisions for the Appointment of Trustees. 366. The duties of executors are generally temporary, last- ing about a year or until the settlement of the estate, but the duties of trustees may extend during the lives of beneficiaries — or for years. During the continuance of a trust the trustees may die, resign, or become incompetent to act. Hence, it be- comes important that a will should provide for a succession o f trustees. If a number of trustees are appointed a testator may not be satisfied that a surviving trustee should act alone. A will may provide that the original number of trustees shall be preserved. If trustees should be given discretionary powers the will can provide that such powers shall extend to succes- sors. A will can provide that certain persons shall fill vacancies and that in case the list of such persons is exhausted that some trust company shall be a trustee to fill all vacancies there- after. If the will does not provide for a substitution of trus- tees then the court may have to appoint upon the suggestion of some one in interest and the trustees so appointed will have 30 Owen's Est., 15 Pa. C. C. R., 196, s. c, 3 Pa. Dis., 331. 31 Cook's Est., 17 Pa. C. C. R., 440; s. c. S Pa. Dis., 119. 148 LAW OF WILLS IN PENNSYLVANIA. to give security. The trustee so appointed may happen to be an improper or incompetent person. Trustee Can Only Invest in Legal Investments. 367. Trustees by acts of assembly are required to invest only in legal investment. They cannot invest in stocks, etc. (See sections as to investments). CHAPTER XIII. POWERS. 368. Powers to sell real estate. 369. Distinctions between discre- tionary and peremptory powers of sale. 370. When a mere naked authority to sell the land descends to heirs. 371. No conversion if devisees may sell by agreement and di- vide proceeds. 372. No conversion by a direction to sell real estate with the con- sent of brothers and sisters. 373. When discretionary power to sell real estate does not prevent partition. 374. Conversion by sale may be express or implied. 375. When sale directed upon a contingency no conversion. 376- In case of conversion a dis- tributee may assign share of money. 377. Power of sale without limit void under rule against perpetui- ties. 378. When estate vested power may be exercised in a reason- able time. 379. All parties interested may recognize continuance of power. 380. A power without limit limited to lifetime of widow. 381. A discretion to sell may exist during lifetime of trustee. 382. When purpose of a power of sale accomplished ceases. SECTION 383. Power of sale does not end if one of different purposes fail. 384. Power to sell to pay debts void if no debts. 385. A power to sell to pay debts ceases upon payment. 386. Power of trustee appointed by court at testator's domicile to sell. 387. When powers of sale can be exercised by an administrator, c. t. a. 388. Removal of limitation of power to sell by consent of ten- ant for life. 389. Averting a sale under a power by election. 390. A power to sell a power to mortgage. 391. Liability of purchasers under powers for the application of purchase money. 392. Purchaser not liable to see purchase money applied to pay general debts under absolute di- rection to sell. 393. When power to sell real es- tate not given to any person executor may sell. 394. A discretionary power to sell should be exercised in the time limited for sale. 395. Sale when time not arrived to exercise power of sale. 396. Failure to exercise power of sale at time fixed. 149 150 LAW OF WILLS IN PENNSYLVANIA. 397. Orphans' Court will control the exercise of a discretionary power of sale. 398. A power of sale may be im- plied from purpose of will. 399. When power of sale implied court cannot order executor to sell. 400. A sale of real estate by chil- dren in place of executor by power. 401. When a power of sale should locate the property to be sold. SECTION 402. Dispensing with a will and power of sale by family settle- ment and election. 403. The exercise of powers of appointment by wills. 404. Case where an appointment void for want of a seal. 405. What is a seal in exercising power of appointment. 406. When a general devise an ex- ercise of a power of appoint- ment. 407. Powers of appointment as to real estate in Pennsylvania gov- erned by the laws of the State. Powers to Sell Real Estate. 368. It is common to insert in a will a clause giving execu- tors or trustees power to sell real estate. In case of a direct, absolute devise of real estate to persons of age and under no disability there will be no absolute necessity for a power of sale as they can convey themselves but when real estate is held undivided and there are various interests and trusts to be ad- ministered and there are disabilities a power of sale will be found convenient and may obviate the necessity of applying to court for authority to sell. Whilst a power of sale in a will seems to be a very simple provision, easily understood and car- ried out, it may give rise to many nice legal distinctions from the words used and the circumstances of the case. Upon a slight difference in the wording of the power may depend whether a large estate in real estate will pass under a will as such or whether only proceeds of sale are given. Then there are nice questions as to whether there is any purpose for the power, or whether the purpose has ceased to exist, or whether the law will permit the power. Distinctions Between Discretionary and Peremptory Powers of Sale. 369. There is an important distinction between cases where executors or trustees have a discretionary power of sale and where the freehold is in the devisee and the case where there is a positive or peremptory order for the executors or trustees POWERS. 151 to sell and where the freehold is in the executor or trustee. Where there is a discretionary power to sell the owners will have the right to occupy the property and to receive the rents thereof until a sale and when there is a sale it will operate like a springing use or interest, but where there is a peremptory power to sell, the executor or trustee is treated as the owner of the property, and those who are beneficially entitled, will be treated as having a right to the proceeds of sale as person- alty. In such case a judgment against the beneficiaries will not be a lien on their interests. Their interests, however, will be subject to attachments if not protected therefrom by a spend- thrift trust. In case they should die their interests will go as personalty to their administrator or executor. "An express and implicit direction by the will to sell the real estate of the testator and divide the proceeds, works a con- version of it into personalty on his death." Laird's Ap., 85 Pa., 339 ; Jones v. Caldwell, 97 Pa., 42. The beneficiaries in such a case take as legatees and not as devisees ; they take money and not land. Bright's Ap., 100 Pa., 602. ^ When a Mere ITaked Authority to Sell the Iiand Descends to Heirs. 370. In case of a mere authority to sell real estate the same goes to the devisees or heirs until a sale. The power of sale has no practical force until its exercise by a sale.^* No Conversion if Devisees May Sell by Agreement and Divide Pro- ceeds. 371. A will devising real estate with a provision that the de- visees may sell it at any time after testator's death "provided they mutually agree to the time of the sale" and providing that the proceeds be equally divided among the devisees, does not work a conversion of the realty devised.^ Wo Conversion by a Direction to Sell Ileal Estate With the Consent of Brothers and Sisters. 372. A testator directed that his land should not be sold un- 1 Johnson v. Kite, 26 Pa. C. C. R., 391, C. P. Phila. I* Blight V. Wright, I Phila., 549. 2 Greenough v. Small, 137 Pa., 128. 152 LAW OF WILLS IN PENNSYLVANIA. less it be necessary to do so in order to pay debts, but only with the consent of brothers and sisters, and in case of sale, that the proceeds should be applied to the maintenance of the family. It was held that as there was no absolute direction to sell there was no conversion.* When Discretionary Power to Sell Whole Estate Does Not Prevent Partition. 373. When a will contains no positive direction to sell but merely gives the executors a naked power to sell, to be used "if they find it necessary to do so in order to make a fair and equitable division" of the estate in accordance with the will, there will be no conversion. A testatrix devised shares to her grandchildren who were to come into possession at majority respectively, and until then to be held in trust. In such case, as each grandchild became of full age the trust terminated as to him, and he became seized of such interest in the real es- tate as enabled him to maintain a bill for partition notwith- standing an tmexpired naked power to sell for the purpose of division.* Conversion by Sale May be Express or Implied. 374. To work a conversion of real estate into personalty, there must be either a positive direction to sell; an absolute necessity to sell in order to execute the will ; or such a blending of realty and personalty by the testator, in his will, as to clearly show that he intended to create a fund out of both real and personal estate and to bequeath the same as money. In the first case, the intention to convert is expressed. In the latter two it is implied.^ There is no presumption in favor of an intention on the part of a testator to convert his real estate into personalty, and in the absence of an express direction to sell, such an intention will not be inferred from the existence of a mere discretionary power to the executor, unless the purposes disclosed by the 3 Sill V. Blaney, 159 Pa., 264. 4 Sheridan v. Sheridan, 136 Pa., 14. 5 Darlington v. Darlington, 160 Pa., 65. POWERS. 153 will are such that they can only be carried out through the instrumentality of a sale. It is only when the will, standing by itself shows that the testator meant to create a fund raised out of both real and personal estate, and to bequeath this fund in money alone, that a conversion will arise without express terms.''* A testator in his will said, "I desire all my other estate, real, personal or mixed, shall, as soon after my decease as practical, be sold, and the proceeds arising therefrom be invested," etc. It was held that there was a conversion of the real estate.® When Sale Directed Upon a Contingency No Conversion. 375. In the case of a sale directed upon a contingency the rule is that no conversion results from the law and the conver- sion does not take place until the sale is actually made.^* In Case of Conversion a Distributee's Share Will Be as a Legacy. 376. When there is a conversion a distributee's share will be treated as personalty or as a legacy.'^ Power of Sale Without Limit Void Under Bule Against Perpetuities. 377. A power of sale without limit is bad under the rule against perpetuities, but such powers, when framed in general terms, may be limited by limitations of the settlement con- tained in the will.* When Estate Vested Power of Sale May be Exercised in a Season- able Time. 378. A trust is not illegal as a restraint on alienation where there is a vested interest in the devisee which he can sell or dis- pose of at pleasure and it is only the time of the enjoyment of the property which is postponed. A testatrix left all her S* Curry's Est., S Pa. C. C. R., 598. 6 Hodge's Est., 5 Pa. C. C. R., 283 ; Espenship's Est, 13 Pa. C. C. R., 294. 6* Irvin v. Patchen, 35 W. N. C, 341, s. c. ; Ingersoll's Est., 15 Pa. C. C. R., 19. 7 Duval's Appeal, 38 Pa., 112. 8 Wilkinson v. Buist, 124 Pa., 253. 154 LAW OF WILLS IN PENNSYLVANIA. property to her children who may be living at the time of her death, share and share alike, subject to the control of the executor to manage the property as far as pos- sible as her husband had done and equally divide the income and principal arising from the sale of real estate among the persons entitled under the will in such manner as shall seem proper to the executor. In regard to the final dist- "jution of the estate, she directed her executor and trustee when two- thirds of the persons interested shall demand, to sell the prop- erty and divide the proceeds among those interested under the provisions of the will. It was held that the trust was an active one, for a lawful purpose, the management of the estate, and not in conflict with the law in regard to perpetuities. The mere fact that no time is fixed, within which the power of sale must be exercised, does not itself create a perpetuity, as it must be exercised within a reasonable time. Besides it was compe- tent for all parties in interest at any time to defeat the power and take the property discharged thereof.® All Parties Interested May Recognize Continuance of Power. 379. It seems that if a power is without limit that all parties in interest by their actions may recognize its existence.-"' A Power Without Limit Limited to Lifetime of Widow. 380. The provisions of a will were construed to show that the exercise of a power was limited to the lifetime of a widow.^' A Discretion to Sell May Exist During Lifetime of Trustee. 381. A trust which forbids a sale without the consent of trustees, or a majority or the survivors of them is not a per- petuity as the discretion must be exercised in the lifetime of the trustees.^^ When Purpose of a Power of Sale Accomplished Ceases. 382. When the object for which a power of sale has been 9 Cooper's Est, 150 Pa., 576. 10 Marshall's Est., 138 Pa., 260. 11 Wilkinson v. Buist, 124 Pa., 253; Fidler v. Lash, 125 Pa., 87. 12 Myer's Est., 11 Pa. C. C. R., 194, s. c, I Pa. Dis., 140. POWERS. iSS created has been accomplished or has become impossible or un- attainable, the power of sale ceases to exist.^* Where the purpose of a power was complete at the death of a last surviving child of the testator, which was the time fixed for the final distribution, the power became invalid, though standing by itself, it would seem to be unlimited as to time.^* Where the purposes of the conversion have totally failed the property will devolve according to its original character. When the purpose of a conversion of realty, directed in a will, is to effect a division of the estate, and by the happening of cer- tain events a division becomes unnecessary, the purpose of the conversion falls. The fee having centred in one owner the di- rection to divide fell. A life tenant in one-fourth of the realty is not entitled to have a sale.^** Power of Sale Does Not End if one of DifEerent Purposes Fail. 383. If a testator authorize his executors to sell his entire estate, real and personal, for the payment of debts and lega- cies and to divide the balance remaining among charities, then as the power would be for the general purposes of the will a conversion will take place upon the death of the testator, not- withstanding the failure of one of the purposes, viz., the gift to charities, the same being void under the Act of April 26, 1855, P. L., 332. A power of trustees to sell was not limited to a particular share but extended to the whole land devised in trust. The power was limited to the continuance of the trust although some of the trusts had ceased and was therefore not obnoxious to the rule against perpetuities.^® Power to Sell to Pay Debts Void if No Debts. 384. Executors were authorized to sell real estate to pay debts but as there was no necessisty to sell for that purpose the devisees took their interest as real estate.^® 13 Fidler v. Lash, 125 Pa., 87. 14 Githen's Est., 24 Pa. C. C. R., 248, s. c, 9 Pa. Dis., 465, O. C. Phila. 14* Rudy's Est., 19 Pa. C. C. R., 390, affirmed 185 Pa., 359. 15 Cresson v. Ferree, 70 Pa., 446. 16 Darlington v. Darlington, 160 Pa., 65. 156 LAW OF WILLS IN PENNSYLVANIA. A Power to Sell to Pay Debts Ceases tTpon Payment. 385. A testator gave the residue of her estate to her two sis- ters after certain specified devises and general legacies and au- thorized and empowered her executors to sell her real estate. After the payment of debts and legacies there was a large sur- plus in cash in the hands of the executors and considerable real estate was unsold. It was held that the executors having sold all that was necessary to carry out the provisions of the will the power of sale conferred upon them was executed. Power of Trustee Appointed by Court at Testator's Domicile to Sell. 386. When the will of a non-resident owner of real estate has been duly probated in the State of the domicile, and an exempli- fication of the probate has been duly filed and recorded in the office of the register of wills of the county in this State where the real estate is situated, an executor and trustee who had been appointed by the court of the State of the testator's domi- cile in place of the executors and trustees named in the will, had the power and authority of the executors or trustees named in the will to make conveyance of the real estate in ac- cordance with the directions and provisions of the will.^^ Wlien Powers of Sale Can be Exercised by an Administrator, c. t. a. 387. A power of sale to executors was originally a mere common law power which could not be exercised by an ad- ministrator d. b. n. c. t. a. This was changed by the Act of February 24, 1834. The power under the act must be to the executors virtute officii, i. e., to pay debts or distribute and an administrator d. b. n. c. t. a. cannot execute a power reposed in an executor not connected with his office as executor, but as trustee. The act puts such an administrator on the footing of a surviving executor, but not on the footing of a testamentary trustee. ^^ 17 Hoysradt v. Gas Co., 194 Pa., 251. 18 Evans v. Chew, 71 Pa., 47 ; Lantz v. Boyer, 81 Pa., 325 ; Jackman v. Delafield, 85 Pa., 381. POWERS. 157 Kemoval of Limitation of Power to Sell by Consent of Tenant for Life. 388. A testator devised real estate to his widow for life, but directed that after her decease, his executor should sell and convey the same, and pay the proceeds to his children; and it was held that a conveyance by the executor in the widow's life- time, but with her consent, passed a good title to a purchase. As a sale with the life tenant's consent was not technically a conveyance of her estate, but a removal of a limitation upon the executor's power otherwise sufficient, making it presently ex- ercisable, no question under the statute of frauds was in- volved and the life tenant's consent could be shown by parol.^^ Averting a Sale Under a Power by Election. 389. Where there is a power of sale and those entitled to the proceeds of sale are of full age and are entitled to the proceeds absolutely they may elect to take the real estate without con- version and thus avert a sale by the executors. This election may be expressed or implied from actions. Upon such elec- tion those entitled to the property hold it as if they had re- ceived an absolute deed of conveyance at the time of the elec- tion. In case of a peremptory order to sell when the heirs are entitled to the proceeds as personalty their interest is changed from personal to real estate so that the real estate can be bound by judgments and the like.^" All parties interested must act in the act of election, other- wise it is nugatory. The heirs take title, not by the will, but by their own act. Their election to take the land is an appro- priation of their interests under the will to the acquisition of the land, as upon a purchase, and an equitable estate is thereby created in them, which chancery will execute by compelling a conveyance. But until the act of election the heirs have no estate or title which could be the proper subject of a lien either by judgment or mortgage, or which could be taken in execu- tion.2»* ig Hamlin v. Thomas, 126 Pa., 20. 20 Henderson v. Henderson, 133 Pa., 399; Major's Est., 11 Pa. C. C. R,, 359; Reeser's Est., 4 Pa. C. C. R., 417. 20* Singer Manufacturing Co. v. Sproull, 20 Pa. C. C. R., 378, C. P., Har rah's Est., 20 Pa. C. C. R., 606; Johnson v. Kite, 26 Pa. C. C. R., 391. 158 LAW OF WILLS IN PENNSYLVANIA. A Power to Sell a Power to Mortgage. 390. One having a power to sell real estate under a will has power to mortgage provided the will does not show a contrary intent. A devisee for life was as executrix given a power to sell real estate and it was held that she could give a mortgage which would bind the remainderman.^^ Liability of Purchasers "dnder Powers for the Application of Purchase Money. 391. Powers of sale usually contain the provision that the purchaser shall not be liable for the application, non-applica- tion or misapplication of the purchase money. This clause should always be inserted. In case it is not inserted then the question arises as to whether there is any liability for the ap- plication of the purchase money and if so in what mode this lia- bility can be gotten rid of. Purchaser Not Liable to See Purchase Money Applied to Pay General Debts Under Absolute Direction to Sell. 392. A purchaser under an absolute testamentary direction to sell land is bound to see to the payment of scheduled debts because he has notice, but he is not bound to see to the pay- ment of general debts. The rule does not apply where the power of sale is discretionary only. It was held that there was no absolute direction to sell, and that an unscheduled debt became a lien from the date of the death of the testatrix.^^ When Power to Sell Eeal Estate Not Given to any Person Executor May Sell. 393. By the Act of 1834, all powers, authority and direc- tions relating to real estate contained in any last will and not given to any person by name or by description, shall have been deemed to have been given to the executor thereof, but no such power, authority or direction shall be exercised or carried into 21 McCreary v. Bomberger, 151 Pa., 323. 22 Seeds v. Burk, 181 Pa., 281. POWERS. 159 effect by them except under the control and direction of the orphans' court having jurisdiction of the accounts.^^ A Discretionary Power to Sell Should be Exercised in the Time Lim- ited for Sale. 394. It was held that where a testatrix stated in her will that she desired her executor to sell in one year after her death, a sale made thereof made more than four years after her death will not pass a good marketable title, because the power to sell being limited and discretionary, must be strictly fol- lowed, and a sale made more than a year after the death of tes- tatrix was without authority and invalid, but see section 396.2* Sale When Time Not Arrived to Exercise Power of Sale. 395. The orphans' court of the proper county may order the sale of real estate when the time has not arrived for the exer- cise of a power of sale.^^ Failure to Exercise Power of Sale at Time Fixed. 396. The failure of executors to exercise a power of sale di- rected by testator to be exercised within a fixed time does not destroy the power. During the time limited they have some discretion ; after its expiration they have none.^® Orphans' Court Will Control the Exercise of a Discretionary Power ot Sale. 397. A discretionary power of sale should not be exer- cised except to serve some good purpose and when the sale is prejudicial to the interests of a devisee for life the power should not be exercised unless the sale is necessary to protect the estate of the testator. The court will restrain sales by execu- tors at the request of devisees for life.^'^ 23 Act Feb. 24, 1834, Sect. 12, i P. &c L. Dig., 1481, P. L. 70. 24 Herb v. Walther, 6 Pa., Dis., 687, O. C, Allegheny Co. 25 Act April 18, 1853, Sect. 2, i P. & L. Dig., 4049, P. L., 503. 26 Fahnestock v. Fahnestock, 152 Pa., 56. 27 Espenship's Est., 13 Pa. C. C. R., 294. l60 LAW OF WILLS IN PENNSYLVANIA. A Power of Sale May be Implied From Purpose of Will. 398. The gift of an entire estate to executors for purposes which could not be accomplished without a sale of realty, neces- sarily carries with it the power to make such sale.^® When Power of Sale Implied Court Cannot Order Executor to Sell. 399. Where there is an implied conversion by the testator commingling the real and personal estate and bequeathing shares therein, but there is no positive direction to sell, the court does not possess the power to order the sale of the real estate under the Act of 1834, giving power to order the execu- tor to sell when power is not given to any one by name.^^* A Sale of Keal Estate by Children in Place of Executor by Power. 400. There being a power of sale vested in executors, with provisions directing distribution among children at majority, the power of sale not being executed, a conveyance by the chil- dren as they arrive at majority was held to be an election to take the land in specie.^® When a Power of Sale Should Locate the Property to be Sold. 401. Where a testatrix stated in her will that she desired her executor to sell her house and lot without describing or lo- cating it it was held that the power to sell was too indefinite and uncertain to justify an executor in making a sale without an order of court.*" Certainly there can be a general power given by will to sell without specifying any particular property. It seems that the intention could be ascertained by the will and circum- stances. Suppose, for instance, a testatrix should own only one house and lot, why should not the power apply to that ? How- ever, it will be well to avoid any question by showing in a general or particular way what property is to be sold when the power is not general. 28 Morgan's Est., 9 Pa. C. C. R., 119. 28* Krug's Est., 9 Pa. Dis., 239. 29 Battersby v. Castor, 181 Pa., SSS- 30 Herb v. Walther, 6 Pa. Dis. R., 687. POWERS. l6l Uispensirtg Witii a Will and Power of Sale by Family Settlement and Election. 402. The widow and heirs of a testator who were all sui juris, made a family settlement and agreement which was duly executed and acknowledged. It was held that the family set- tlement and agreement superseded the will of the decedent and that the executors named in the will were not entitled to let- ters testamentary thereon. The heirs elected to accept the real estate of the decedent as land and that the same should not be sold as provided in the will.^^ A testator may desire to prevent such a combination. Possibly the same could be prevented by a testator giving all his estate or a large portion thereof to trustees to hold, sell, apportion and divide at or before a certain time among his family in a certain way, and in the meantime to pay them the net income free from their debts and creditors with prohibi- tions against assignments, anticipations waiving, or dispensing with any power or trust or dispensing with the operation of the will in any way, and there possibly could be a provision that in case of any combination for the purpose of dispensing with the will the estate should be divided in some other manner. The Exercise of Powers of Appointment by Wills. 403. It often occurs in trust deeds and wills that some one having the benefit of property for life is given the right to ap- point by will, how the same shall go upon his or her decease. In such case the deed or will giving such power should be carefully examined and the instructions as to how the power shall be exercised should be carefully followed. The intention to exercise the power should be clearly shown and it will be well to recite the deed or will in which the power appears and to expressly declare the intention to exercise it. In exercising such power the same care should be taken as in the making of a will. Case where an Appointment Void for Want of a Seal. 404. Where it was declared in a deed that an appointment 31 Robert Lloyd's Est., 24 Pa. C. C. R., 567. II 1 62 LAW OF WILLS IN PENNSYLVANIA. was to be executed by writing under hand and seal in the na- ture of a last will and testament and duly attested by two or more subscribing witnesses and the appointment was in writing and executed in the presence of two witnesses, but not under seal it was held that there was not a good execution of the power.^^ What is a Seal in Exercising Power of Appointment. 405. The donor of a power required it to be executed by testamentary writing under the hand and seal of the donee. The will of the donee exercising the power was attested. "In witness whereof I have hereunto set my hand and seal," and was signed thus: "Ellen Wain ." As the will disclosed a manifest purpose to execute the power and an avowed pur- pose to affix a seal it was held that it may be assumed that the mark ( ) was made and intended for a seal, that the writ- ing was in this respect a compliance with the donor's di- rections and the power was well executed.^* When a General Devise of Beal Pstate an Exercise of a Power of Ap- pointment. 406. By the Act of June 4, 1879, it is provided that a gen- eral devise of 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 man- ner, shall be construed to include any real estates, or any real 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 ; and in like manner a bequest of the personal estate of the testa- tor or any bequest of personal property described in a gen- eral manner shall be construed to include any personal estate, or any personal estate to which such description shall ex- tend as the case may be which he may have power to appoint in any manner he may think proper, and shall operate as an ex- 32 Pepper's Will, i Parsons, 436. 33 Hacker's Appeal, 121 Pa., 192. POWERS. 163 cution of such power, unless a contrary intention shall appear by the will. A gift by a testatrix in her will of "all which I may die pos- sessed of" will operate as an exercise of a testamentary appoint- ment given to her in a trust deed.^* Powers of Appointment by a If on-resident as to Real Estate in Penn- sylvania Governed by the Laws of the State. 407. When the donee of a power to appoint by will, real es- tate in Pennsylvania, dies domiciled in another State, leaving a will containing an appointment of such realty, and which is probated in the forum of the domicile, the validity of the appointment so made as an execution of the power, is to be de- termined by the law of Pennsylvania.^* 34 Ashburner's Est., 13 Pa. C. C. R., 559. 35 Lawrence's Est., 136 Pa., 354. CHAPTER XIV. CHARGES. SECTION 408. The intention to charge must be on the face of the will. 409. Words used in creating charges. 410. A mere direction to pay a legacy not a charge. 411. Devise of land at a price a charge. 412. The lien of a charge superior to judgments against devisees. 413. Implied charge of lands by a devise of the residue. 414. Devisee personally liable for a legacy charged on land. 415. Releases by trustees of charges should be made for a consideration. 416. Effect of sheriff's sale upon charges. 417. When personal property must be exhausted before claiming by charge. 418. Apportionment of legacies charged in case of sheriff's sale. The Intention to Charge Must be on the Face of the Will. 408. The intention of a testator to create a charge on real estate is to be carried out, whenever it is discoverable from anything contained in his will; but there must be something on the face of the instrument itself from which the intention to create such charge can be inferred. No particular language is necessary to create a charge.^ Words Used in Creating Charges. 409. A direction that the devisee yield and pay out of the land a specific sum is a charge upon it. The words "yielding and paying" thereout indicate the intention to charge legacies on land.^ A Mere Direction to Fay a Legacy Not a Charge. 410. A mere direction to the devisee to pay a legacy creates only a personal liability if he accepts the devise. But a direc- tion to the devisee to pay a legacy out of lands devised, or as a 1 Duvall's Est., 146 Pa., 176; O'Keson's Appealp, 59 Pa., 99. 2 Hammond's Est., 197 Pa., 119. 164 CHARGES. 165 condition on which the lands are devised, creates not only a personal liability if the devise is accepted, but also a charge upon the land devised.* Devise of Land at a Price a Charge. 411. Where land is devised at a price to be paid by the de- visee, a charge on the land is created. There was a devise for a certain sum. It was held that the will created a charge upon the land, and not a mere personal obligation upon the sons who accepted the land. The court said "It was said in Gilbert's Appeal, 85 Pa., 347, that 'While, in order to make legacies a charge on land it must be found such was the testator's in- tention, still it is not necessary that its ascertainment should rest on direct expression. It is enough if the intention appears by natural and obvious implication from the provisions of the will." * The Lien of a Charge Superior to Judgments Against Devisees. 412. When land is devised at a valuation or price to be paid by the devisee, the money becomes a charge on the land in the hands of the devisee accepting the devise, which is su- perior to the lien of judgments subsequently entered against the devisee." Implied Charge of Lands by a Devise of the Residue. 413. Where the testator, after giving pecuniary legacies, makes no specific devise of his real estate, but blends it with the personalty, in the residuary clause, giving it all to the re- siduary devisee, he thereby charges the realty with the pay- ment of the legacies.® Devisee Personally Liable for Legacy Charged on Land. 414. Where an annuity or legacy is charged on land, the acceptance of the land renders the devisee personally liable. An action may be brought in a court of common pleas but a 3 Wise's Est., 188 Pa., 258. 4 Weiler's Est., i6g Pa., 66; Lancaster County Bank's Appeal, 127 Pa., 214. 5 Lancaster Co. Bank's Appeal, 127 Pa., 214. 6 Gallagher's Appeal, 48 Pa., I2i ; Mellon's Appeal, 46 Pa., 165 ; Becker v. Kehr, 49 Pa., 223. 1 66 LAW OF WILLS IN PENNSYLVANIA. charge is enforced against the land by proceeding against the land itself in the orphans' court J Releases by Trustees of Charges Should be Made for a Consideration. 415. Releases executed by trustees of the person entitled to valuation money or charge, acknowledging payment thereof, though duly recorded prior to the entry of judgment against the devisee, do not relieve the land from the charge if the evidence show that the money was not paid and that the re- lease was without consideration.* Effect of Sheriff's Sale Upon Charges. 416. In case of a devise to a child with a charge on the land devised, the interest to be paid to a wife for life and at her death the sum of money charged to be paid to children it was held that a sherifif's sale did not discharge the lien. The lien created by the will being of a fixed and continuing nature, a sheriff's sale of the land during the life of the widow did not discharge the lien. When charges are in the nature of testa- mentary provisions for wives and children, or are not capable of valuation or are expressly created to run with land they will not be divested by a sheriff's sale.' When Personal Property Must be Exhausted Before Claiming by Charge. 417. Personal estate is the primary fund for the payment of a legacy impliedly charged on a residuary real and personal es- tate, and the fact that there is no proof that personal estate is insufficient to pay the same, will defeat a claim that the legacy is a charge upon the land.-"* Apportionment of Legacies Charged in Case of Sheriff's Sale. 418. Where land charged with an annuity is sold at sher- iff's sale in different lots to several parties, purchasers must contribute to pay the charge in proportion to their respective Iqts." 7 Dinsraore v. Ramsay, 13 Pa. C. C. R., 119. 8 Banks' Appeal, 127 Pa., 214. 9 Hartzell's Est, 188 Pa., 384; Rohn v. Odenwelder, 162 Pa., 346. 10 Magee's Est., 11 Pa. C. C. R., 559. ti Jones' Est., 169 Pa., 392. CHAPTER XV. COLLATERAL INHERITANCE TAX. SECTION 419. The collateral inheritance law. 420. Taxation of future interests. 421. Meaning of exemption of es- tates "less than two hundred and fifty dollars." 422. An estate not liable when tes- tator not seized or possessed. 423. When a deed intended to take effect after death of grantor property liable. 424. When legacies given by non- residents liable. SECTION 425. When land in Pennsylvania of non-residents converted not liable to tax. 426. Land in another state not liable. 427. Tax on annual net sums to be paid clear of tax. 428. Charities liable to tax. 429. Tax on realty to be paid by devisees not executors. 430. Non-resident personalty hav- ing situs in Pennsylvania liable to tax. The Collateral Inheritance Tax Law. 419. "All estates, real, personal and mixed, of any kind whatsoever, situated within this State, whether the person or persons dying seized thereof be domiciled within or out of this State, and all such estates situated in another State, Terri- tory or country, when the person, or persons, dying seized thereof, shall have their domicile within this Commonwealth, passing from any person, who may die seized or possessed of such estate, either by will, or under the intestate laws of this State, or any part of such estate, or estates, or interests therein transferred by deed, grant, bargain or sale, made or intended to take effect, in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to bodies corporate or politic, in trust or otherwise, other than to or for the use of father, mother, husband, wife, children and lineal de- scendants born in lawful wedlock, or the wife, or widow of the son of the person dying seized or possessed thereof, shall be and they are hereby made subject to a tax of five dollars 167 1 68 LAW OF WILLS IN PENNSYLVANIA. on every hundred dollars of the clear value of such estate or estates, and at and after the same rate for any less amount, to be paid to the use of the Commonwealth ; and all owners of such estates, and all executors and administrators and their sureties, shall only be discharged from liability for the amount of such taxes or duties, the settlement of which they may be charged with, by having paid the same over for the use afore- said as hereinafter directed: Provided, that no estate which may be valued at a less sum than two hundred and fifty dol- lars shall be subject to the duty or tax." ^ Taxation of Future Interests. 420. "In all cases where there has been or shall be a devise descent or bequest to collateral relatives, or strangers liable to collateral inheritance tax, to take effect in possession, or come into actual enjoyment after the expiration of one or more life estates, or a period of years, the tax on such estate shall not be payable, nor interest begin to run thereon, until the per- son or persons liable for the same shall come into actual pos- session of such estate, by the termination of the estates for life or years, and the tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner as aforesaid. Provided, That the owner shall have the right to pay the tax at any time prior to his coming into pos- session, and, in such case, the tax shall be assessed on the value of the estate at the time of the payment of the tax, after de- ducting the value of the life estate or estate for years.^ Meaning of Exemption of Estates "Less Than Two Hundred and rifty Dollars." 421. A testator bequeathed seven legacies of $200 each and it was held that each of the legacies were chargeable with the collateral inheritance tax. By the word estates the legislature meant what persons shall die seized, or possessed of, or his prop- erty real and personal.* 1 Act May 6, 1887, Sect, i, 2 P. L. Dig., 4485 ; P. L., 79. 2 Act May 6, 1887, Sect. 3, 2 P. & L. Dig., 4488; P. L., 79. 3 Howell's Est., 147 Pa., 164. COLLATERAL INHERITANCE TAX. 169 An Estate Not Liablie When Testator Not Seized or Possessed. 422. A collateral inheritance tax is not chargeable upon an estate of which a person never had possession or was seized ; it is not chargeable upon an estate which was contingent and which required a death without issue to resolve the contin- gency.^ When a Seed Intended to Take Effect After Death of Grantor Prop- erty Liable. 423. Whether the deed of conveyance be valid or the will operative, the estate is liable to the tax in either event, and the deed intended to take effect after the death of the grantor makes the property liable.^ The right of the Commonwealth to collateral inheritance tax is not defeated by a conveyance or transfer of title to the property during the lifetime of the owner, nor by possession taken under such conveyance, if the enjoyment of the prop- erty conveyed is not intended to take effect until after the death of the grantor.® When Legacies Given by Non-Besidents Liable. 424. Legacies by non-resident testators to non-resident col- lateral heirs are liable so far as they are payable out of real property in Pennsylvania. '^ When Land in Pennsylvania of Non-Resident Converted Not Liable to Tax. 425. Where a testator, domiciled in another State, directs that land in this State shall be sold for the payment of legacies to collaterals the proceeds of sale are not liable to collateral inheritance tax.® Land in Another State Not Liable. 426. The fact that devisor of land situate in Maryland was 4 Swann's Est, 12 Pa. C. C. R., 135. 5 Maris's Est.. 14 Pa. C. C. R., 171- 6 Lines' Est., 155 Pa., 378. 7 Del Busto's Est., 6 Pa. C. C. R., 289 ; Orcutt's Appeal, 97 Pa., 179. 8 Coleman's Est, 159 Pa., 231 ; Binns' Est., 25 Pa. C. C. R., 337. T70 LAW OF WILLS IN PENNSYLVANIA. domiciled in Pennsylvania makes no difference in the applica- tion of the rule denying the State tax laws an extra territorial operation.® There being no conversion by the will, neither lands in an- other State nor the fund arising from their sale are liable for collateral inheritance tax.^° When a testator directs that real estate situated in another State shall be sold after the death of his wife, and that the proceeds thereof shall be invested in mortgages in such State, the proceeds are not subject to the collateral inheritance in this State because the direction to sell was not operative until the death of the widow. If the lands retained as against the Commonwealth their original character during the life of the widow, they were beyond the taxing power of the State.-' -^ Tax on Annual Net Sums to be Paid Clear of Tax. 427. In case of a bequest of an annual net sum to one for life, and the income of the residue to the testator's son. It was held that the word net meant "clear of all charges and deduc- tions" and consequently that the tax should be paid by the es- tate. If the gift was simply an annuity of a specified ^^.um the annuitant would be liable for the tax.^^ Charities Liable to Tax. 428. The collateral inheritance tax upon a charitable be- quest is not a tax within the meaning of the Constitution and is liable to pay the same.'^^ Tax on Bealty to be Paid by Devisees Not Executors. 429. Where the tax is due on realty the devisees and not the executors are the proper parties to be cited for the payment of the tax.^* 9 Bittinger's Est., 129 Pa., 338. 10 Coramon'th v. Gordon, 5 Cent., 276. 11 Hale's Est., 161 Pa., 181. 12 Bispham's Est., 24 W. N. C, 79. 13 Finnen's Est., ig6 Pa., 72. 14 Lisle's Est., 10 Pa. Dis. Rep., 713. COLLATERAL INHERITANCE TAX. IJI Non-Besident Personalty Having Situs in Pennsylvania Liable to Tax. 430. Where securities and other personalty of a non-resident decedent have had at all times an actual situs within this Slate where they have remained in the hands of agents for many years, not temporarily for safe-keeping, but with authority on the part of such agents to invest and reinvest such property will be regarded as tangible and subject to tax. The account- ant and legatees in settling the estate may elect to treat such property in the State subject to taxation.^ ^ 15 Lewis' Est., 203 Pa., 211. CHAPTER XVI. APPOINTMENT OF TESTAMENTARY GUARDIANS. 431. Definition of testamentary 434. When a mother who leaves guardians. an estate may appoint. 432. Direction by act of assembly 435. When mother testamentary for the appointment of guardian guardian may appoint a succes- of person. sor. 433. Father in case of desertion of 436. A testamentary guardian ap- child deprived of right to ap- pointed in another state, point. Definition of Testamentary Guardians. 431. Testamentary guardians are appointed by wills of fath- ers for their children. They have control of the persons and also of the real and personal estates of their wards during their minority. They have charge not only of the estates which may come to children from their fathers, but all property acquired by them from other sources.^ Fathers may appoint guardians by their wills for their unborn children.^ They may appoint guar- dians for children although they do not dispose of any estates.* They are entitled to the custody of their wards in preference to surviving mothers.* Directions by Act of Assembly for the Appointment of Guardian of Person. 432. "Every person competent to make a will, being the father of any minor child, unmarried, may devise the custody of such child, during his or her minority, or for any shorter period."' 1 I Bouvier's Die, 911 (Ed. 1877; Scott on Intestate Law, 2d Ed, 178). 2 Hollingsworth's Appeal, 51 Pa., 518. 3 Jones' Will, 2 Chest. Co., 41. 4 Commonwealth v. Hamilton, I Pitts., 412. 5 Act April 8, 1883, P. L., 249. 172 APPOINTMENT OF TESTAMENTARY GUARDIANS. 1/3 Father in Case of Desertion of Child Deprived of Kight to Appoint. 433. "No father as aforesaid who shall have for one year or upwards previous to his death, wilfully neglected or refused to provide for his child or children, shall have the right to ap- point any testamentary guardian of him, her or them dur- ing minority." * When a Mother Who Leaves an Estate IXay Appoint. 434. "Every mother of an unmarried child, who shall leave to such child an estate, either in lands or chattels, may appoint a testamentary guardian for such child. Provided the father be not living or being deceased he has not appointed such guardian." '^ A guardian appointed by the mother under this act will also have charge of any property not derived from the mother.* When Mother Testamentary Guardian May Appoint a Successor. 435. "Every mother, who by her deceased husband's will, has been appointed testamentary guardian of her children, may by her last will and testament appoint a successor in such guardianship."® A Testamentary Ouardian Appointed in Another State. 436. A testamentary guardian appointed in a will which is probated both at the domicile of the testator and in Pennsyl- vania is not, though residing at the domicile of the testator a foreign guardian.^** 6 Act of May 4, 1855, Sect. 6, i P. & L. Dig., P. L., 430. 7 Act June 10, 1881, Sect, i, i P. & L. Dig., 1506, P. L., 96. 8 Sheets' Estate, 19 Pa. C. C. R., 583. 9 Act June 10, 1881, Sect. 2, i P. & L. Dig., 1506, P. L., 96. 10 Githen's Est., 24 Pa. C. C. R., 248. CHAPTER XVII. APPOINTMENT OF EXECUTORS. 437. Definition of executors. 442. There may be an implied ap- 438. Executor has no authority to pointment. take charge of real estate. 443. Renunciation of executor. 439. Limited or conditional execu- 444. Appointing a successor, torships. 445. Foreign executors. 440. Different ways of appointing 447. Practical suggestions as to executors. 446. Letters of administration 441. Case of Orphans' Court sub- cum testamento annexo. stituting an executor. the appointment of executors. Definition of Executors. 437. An executor is the person to whom the execution of a last will and testament of personal estate is, by the testator's appointment confided.^ Executor Has No Authority as Sucb. to Take Charge of Beal Estate. 438. An executor has no authority to take charge of real estate without authority from the testator and if he does he is liable to account to devisees as a trustee or agent.^ Limited or Conditional Executorships. 439. According to Schouler on Executors, a testator may impose conditions precedent or subsequent to the appointment of an executor, and he may place limitations upon the exer- cise of the office ; as where he commits the execution of his will in different countries or different counties to different persons ; or he may possibly divide the duties of executors with reference to the subject-matter. There may be a postponement of the office or a proviso for the substitution of one executor or set of ex- 1 Williams on Executors, 6 Am. Ed., 267. 2 Landis v. Scott, 32 Pa., 495 ; Tolan's Est., 26 Pa. C. C. R., 221. APPOINTMENT OF EXECUTORS. 1 75 ecutors for another. An executor's interest in the testator's estate is what the testator gives him.^ BifCerent Ways of Appointing Executors. 440. According to WilHams on Executors, the appoint- ment of executors may be express, or constructive, according to the intent, solely or jointly; by substitution; and several executors can be appointed with a power of the survivor to ap ■ point a new one.* Case of Orplians' Court Substituting an Executor. 441. By a will made in the State of Delaware, by a citizen of that State, the testator, in the event of the executor named by him relinquishing the trust, authorized the orphans' court of the city and county of Philadelphia to name a suitable per- son as executor. Upon the relinquishment of the trust by the executor appointed by the will the orphans' court of Phila- phia county named a person for the office, and letters testamen- tary were issued to the nominee by the register of New Castle county. The court held he was executor of the will.^ There Kay be an Implied Appointment. 442. The use of the word "executor" is not essential to the appointment of a person to execute a will. An executor may be appointed expressly or constructively ; and designated by com- mitting to his charge those duties which it is the duty of the executor to perform; by conferring those rights which belong- to the office; or by any other language, from which the inten- tion to invest him with that character may be inferred.* Benunciation of Executor. 443. An executor can renounce his appointment as such ; and if so, he should notify the register of wills of the county where the will will be proved. The time when it becomes 3 Schouler on Executors, Sect. 42. 4 Williams on Executors, 6 Am. Ed., p. 280 to 288. 5 State V. Rogers, 56 Houst. Del., in note to Williams on Executors, p. 288. 6 Carpenter v. Cameron, 7 Watts., 51. 176 LAW OF WILLS IN PENNSYLVANIA. imperative for an executor named to accept or renounce is when he is cited to do so, and mere inaction or delay, unaccom- panied by any acts of intermeddhng with the estate, cannot amount to an acceptance against his consent.^ Appointing a Successor. 444. A testator may lawfully provide for the substitution of a successor to a deceased executor.* Foreign Executors. 445. In case executors are appointed who are not residents of Pennsylvania they may have to give security and take out letters testamentary there and they may decline to do so and it may be well to provide for such an event. Letters of Administration Cum Testamento Annexo. 446. "Whenever the executors named in any last will and testament shall all refuse or renounce the trust and execu- tion thereof, the register, having jurisdiction, may receive the probate of such will, and grant letters of administration with it annexed to the person by law entitled thereto.® In case let- ters testamentary become vacant by decree of the orphans' court, or an executor dies before proving a will; or is legally incompetent to act; or where he dies, after proving the will but before receiving his letters ; or where the testator does not appoint an executor; in these cases the register will grant let- ters of administration with the will annexed to the person or persons who would be entitled to letters of administration if no will had been made.^** Practical Suggestions as to the Appointment of Executors. 447. If a person makes a will and does not appoint an execu- tor, an administrator to take the place of an executor will be appointed. Some relative, some member of the family or 7 Ralston's Est., 158 Pa., 645. 8 Edward's Est., 35 L. I., 182. 9 Act of isth of March, 1832, P. L., 135, Sect. 18. 10 Scott on the Intestate Law, no. APPOINTMENT OF EXECUTORS. 177 stranger may be appointed. The person so appointed may be an unfit, incompetent or improper person and possibly there may a loss of the estate for the want of a proper executor. An ex- ecutor may be appointed by the will but he may renounce, re- sign, die or become incompetent to act and it may be well to provide for such a case by appointing a substitute or succes- sion of executors. The will may provide that by substitution or by some method of appointment, the full number of execu- tors shall always be kept. If there should be any doubt about executors consenting to act as testator can see if they will con- sent before making a will. Sometimes a testator's estate may require a great deal of extraordinary time and trouble and in such cases it may be well to provide for extra compensation above ordinary rates. CHAPTER XVIII. RULES FOR THE CONSTRUCTION OF WILLS. SECTION 448. There should be no attempt to construe that which needs no construction. 449. The intent is to be derived from the words used. 450. When plain meaning of words must govern as to intent. 451. Grammatical collocation of words to be adhered to. 452. It is not necessary to con- sider words exactly in the order in which placed. 453. A positive grant in a will cannot be taken away by incon- sistent implication. 454. No presumption of intestacy. 455. Heir at law can only be dis- inherited by express devise or necessary implication. 456. The law will adhere as closely as possible to the general rules of inheritance. 457. Presumption of equality. 458. In construction the law favors absolute and vested estates. 459. The first taker is presumed to be the favorite of the testa- tor. 460. If two clauses in a will are absolutely repugnant the latter will prevail. 461. Words used more than once in a will presumed to have the same sense. 178 SECTION 462. The misuse of proper words will not destroy intent. 463. Cotemporaneous interpreta- tion of those affected by it for a considerable period of weight. 464. The law favors construction of vesting as soon as possible- 465. Conversion of a fee in a life estate not favored. 466. The effects of words of de- sire, recommendation and confi- dence. 467. When parol evidence is ad- missible to explain will. 468. Condition if possible con- strued as subsequent not pre- cedent. 469. A particular intent must yield to a general intent if in- consistent therewith. 470. Overstatement of the number of a class. 471. When words may. be changed or implied to ascertain intent. 472. Subsequent provisions may define a prior estate and give a less right 473. General rules of construction stated by Mr. Hawkins in his work on the construction of wills. 474. General English rules of Mr- Jarman for construction of wills. RULES FOR THE CONSTRUCTION OF WILLS. 1 79 There Should be no Attempt to Construe That Which Needs no Con- struction. 448. All mere technical rules of construction must give way to the plainly expressed intention of a testator if that intention is lawful. It is a rule of common sense, as well as law, not to at- tempt to construe that which needs no construction. This rule may possibly be applied to an item of a will separately.^ The Intent is to be Derived From the Words Used. 449. It is sometimes difficult in the interpretation of wills, to obey the canon of construction, that the court must not de- termine the probable intention of the testator, but what that intention is as expressed by the words of his will. The question in expounding a will is not what the testator meant, but what is the meaning of his words.^ When Plain Meaning of Words Must Govern as to Intent. 450. Where the words of a will are clear and free from am- biguity, and the external circumstances do not create any doubt or difficulty as to their proper application, the plain meaning of words must govern, and when the words utterly fail to show any meaning, conjecture cannot be accepted as a substitute for what the statute says shall be expressed in writing. In all other cases, the object is always to ascertain the intention of the tes- tator from his entire will, in the light afforded by the nature of his estate and the circumstances surrounding him at the time of its execution.^ Grammatical Collocation of Words to be Adhered To. 451. In construing a will, in case of doubt, the grammatical collocation of words should be adhered to unless there be clear reasons requiring a different construction.* 1 Reek's Appeal, 78 Pa., 432; Shalter v. Ladd, 8 Pa. C. C. R., 528: Thran v. Herzog, 12 Pa. Super., 551. 2 Bank v. Hartman, 8 Pa. Super., 170; Hancock's Appeal, 112 Pa., 532; Hunter's Est., 6 Pa., 97 ; Bredlinger's Appeal, 2 Grant, 461 ; Bruckman's Estate, 19s Pa., 363. 3 Pearson's Est., 10 Pa. Dist., 189 ; O. C. Phila. Co. 4 Shirey v. Postlethwaite, 72 Pa., 39. l80 LAW OF WILLS IN PENNSYLVANIA. The grammatical construction of language is always en- titled to weight in the interpretation of its true meaning, but when it is used by one evidently not familiar with grammati- cal rules, the force of such argument is materially diminished.^ It is not Necessary to Consider Words Exactly in the Order in Which Placed. 452. In construing wills it is not always necessary for the court to consider the words exactly in the order in which they are placed, if a different arrangement will better answer the apparent intent of the testator.® A Positive Grant in a Will Cannot be Taken Away by Mere Impli- cation. 453. A positive grant in a will cannot be taken away by mere implication from another apparently inconsistent devise in the will.^ No Presumption of Intestacy. 454. No testator is presumed to die intestate as to any part of his property, if the words of the will will carry the whole.* The rule that a testator is not presumed to have died intes- tate, wherever the words of the will would carry the whole, is useful, and it is available at times and in circumstances where it may properly be applied, to determine the meaning of a tes- tator in a doubtful case. But it never is more than a rule to help to determine the testator's intent when his meaning is doubtful, upon reading of the words he has employed.^ Heir at Law Can Only be Disinherited by Express Devise or Neces- sary Implication. 455. An heir at law can only be disinherited by express de- 5 Randenbach's Appeal, 87 Pa., si- 6 Ferry's App., 102 Pa., 207; Klapp's Est, 19 Pa. Super., 150. 7 Cheetham v. Muhlenberg, 133 Pa., 309. 8 The Appeal of Board of Missions, 91 Pa., 507 ; Jacob's Est., 140 Pa., 268; Reimer's Est., 159 Pa., 212; Klapp's Est, 19 Pa., 150; Boies' Est, 177 Pa., 190. 9 Schmidt's Est., 183 Pa., 641. RULES FOR THE CONSTRUCTION OF WILLS. l8l vise, or necessary implication, and in the construction of a will of doubtful meaning every fair intendment is to be made in his favor. The title of the heir being founded on the laws of descent, which are certain, is not defeated by an uncertain de- vise.^" The Law Will Adhere as Closely as Possible to the General Bules of Inheritance. 456. In referring to certain bequests, the court said : "Then how shall we interpret the bequests ? The testator says, 'share and share alike among the children of my brother, Adam, and the children of my brother, Martin, and to my sister, Barbara,' and by thus expressing himself, he seems to make three classes, and three equal shares. In another clause, he leaves his thought more doubtful. What can we do but resort to the usual distri- bution of the law for an analogy to help us ? When we find a man distributing his estate, in whole or part, among his next of kin, and he leaves the proportions in which they are to take doubtful, it is quite natural for us to suppose that he had the statutory or customary form of distribution in his mind, and to interpret his will accordingly. This would classify the lega- tees as he seems to have done, and as the court below did, and allow the three classes to take as their parents would have done; thus they themselves take by a quasi representation and per stirpes." Presumption of Equality. 457. Equality is equity; and when distribution is to be made among two or more, without anything to indicate the propor- tions in which they are to take, the presumption is the shares are to be equal. ^^ In Construction the Law Favors Absolute and Vested Estates. 458. In construction of wills, the law in doubtful cases, 10 Bender v. Dietrick, 7 W. & S., 284; Cowles v. Cowles, 53 Pa., 175; Rupp V. Ebberly, 79 Pa., 141 ; Randenbach's Appeal, 87 Pa., 51. ■II Amelia Smith's Appeal, 23 Pa., 9; France's Est., 75 Pa., 220; Lip- man's Appeal, 30 Pa., 180; Minter's Appeal, 40 Pa., iii. 12 Lewis' Appeal, 89 Pa., 509. 1 82 LAW OF WILLS IN PENNSYLVANIA. leans in favor of an absolute, rather than a defeasible estate, of a vested rather than a contingent one.^^ The Pirst Taker is Presiimed to be the Favorite of the Testator. 459. It was held that a wife took a life estate in the whole land, notwithstanding the contingency which gave her a fee in a moiety might happen during her life.^* If Two Clauses in a Will are Absolutely Bepugnant the Latter Will PrevaiL 460. The language of a will in items taken literally were inconsistent. But it was manifest that no such inconsistency was in the mind of the testator and the intent was sought by an examination of the whole will. The court said : "It is true that if two clauses in a will are absolutely repugnant, the latter must prevail even to the total exclusion of the first. But exclu- sion for repugnance is a principle of construction only to be invoked, as a last resort, after all efforts to reconcile and give harmonious meaning to both have failed.^"* The inconsistency which will justify a disregard of the former of two testamentary provisions relating to the same subject, must be clear and irreconcilable ; and if one of them is capable of a construction which will harmonize each with the other and with the general plan of the testator for disposing of his es- tate, it is the duty of the court to adopt that construction.^^ Words Used More Than Once in a Will Presumed to Have the Same Sense. 461. The general rule is that words occurring more than once in a will, will be presumed to be used alway in the same sense, 13 Amelia Smith's Appeal, 23 Pa., 9. 14 Wilson V. McKeehan, 53 Pa., 79; McFarland's Appeal, 37 Pa., 300; Rewalt V. Ulrich, 23 Pa., 388; Grim's Appeal, 89 Pa., 333; Amelia Smith's Appeal, 23 Pa., 9. 15 Hart V. Stoyer, 164 Pa., 523; Sheetz's Appeal, 82 Fa., 213; Carr's Estate, 13 Pa. C. C. R., 643 ; Shakers v. Udd, 8 Pa. C. C. R., 528, affirmed ^ 141 Pa., 349. 16 Jones V. Strong, 142 Pa., 496. RULES FOR THE CONSTRUCTION OF WILLS. 183 unless a contrary intention appears by the context, or unless the words be applied to a different subject.^^ The Misuse of Proper Words Will Not Destroy Intent. 462. The courts have construed the word "or" to mean "and." No inapt words, nor any misuse of proper words, will be destructive of the plain intent, as ascertained from the whole will.i^ Cotemporaneous Interpretation of Those Affected by Will for a Con- siderable Period of Weight. 463. In doubtful cases the cotemporaneous interpretation of a will by those affected by it, continued through a considerable period, has much weight, — especially where no other is sug- gested until rights have changed by reason of death. ^* The Law Favors Construction of Vesting as Soon as Possible. 464. That construction ought to be favored which makes an estate vest absolutely, at the earliest possible period.^* Conversion of a Pee into a Life Instate Not Favored. 465. A construction should be avoided which converts a fee simple into a life estate or an estate tail by implication.^^ The EfEects of Words of Desire, Becotn m endation and Confidence. 466. Words in a will expressive of desire, recommendation and confidence are not words of technical, but of common par- lance, and are not, prima facie, sufficient to convert a devise or bequest into a trust ; but such words may amount to a dec- laration of trust, when it appears from other parts of the will that the testator intended not to commit the estate to devisee or legatee, or the ultimate disposal of it to his kindness, justice or discretion. It was held that by a will the absolute owner- 17 Klapp's Est., 19 Pa. Super., 150. 18 Doebler's Appeal, 64 Pa., 9; Kelley v. Kelley, 182 Pa., 131. 19 Gass's Appeal, 73 Pa., 39 ; McDonald v. Dunbar, 29 W. N. C, 559, S. C. 20 Fulton V. Fulton, 2 Grant, 28. 21 Fulton V. Fulton, 2 Grant, 28. 184 LAW OF WILLS IN PENNSYLVANIA. ship of personal property was given to a widow, with an ex- pression of mere expectation that she would use and dispose of it discreetly as a mother and that no trust was created in re- lation to it,^^ but words expressive of desire, request or rec- ommendation as to the direct disposition of the estate are suffi- cient. Should a testator say merely, "I desire A B to have a thousand dollars" it would be as effectual a legacy as if he was expressly to direct or will it.^^ Mere precatory words or words of command, or words of ex- planation, are not enough to establish an intention that is not to be gathered from a consideration of the operative words upon the face of a will.^* Wheu Parol Evidence Is Admissible to Explain Will. 467. Extrinsic evidence cannot be adduced to qualify, ex- plain, alter or contradict the language of a will, but it must stand as written, when the intention is clearly expressed, and the objects of the bounty are definitely ascertained; but evi- dence outside of a will, of facts and circumstances, which have any tendency to give effect and operation to its terms, such as names, descriptions, designations of beneficiaries named in the will, descriptions of property, and other like collateral cir- cumstances, is admissible.^^ It was held that a line described in a will, as "beginning at an oak corner, northwest, near Wolf's field, thence running in a straight line to the mountain" was neither ambiguous, nor uncertain. That the general rule, undoubtedly is, that parol evidence is admissible only to explain latent ambiguities in a will, or to apply its provisions to the subject or person intended where the description is defective, uncertain, or too general to be understood.^® A devise was to Eberly, "that part of the McKinstery farm 22 Pennock's Est., 20 Pa., 268. 23 Burt V. Herron's Executors, 66 Pa., 400. 24 Boyle V. Boyle, 152 Pa., 108. 25 Gilmore's Est., 154 Pa., 523; Best v. Hammond, SS Pa., 409; Coleman V. Eberly, 76 Pa., 197; Brownfield v. Brownfield, 20 Pa., sS; Myers v. Myers, 16 Super., 511. 26 Best V. Hammond, 55 Pa., 409. RULES FOR THE CONSTRUCTION OF WILLS. 185 at present occupied and farmed by Brown, containing eight fields." Parol evidence was admissible to show that the de- scription "containing eight fields" was a mistake, and the part occupied by Brown contained nine fields.^^ Two post-corners having existed, it was competent to show by deeds for adjoining lands, and other evidence, which corner was the one the testator meant to designate. It was held that there was merely a question of the application of a description to its subject, and that could be shown by parol evidence.^ ^ Where a testator gave a bequest "to the Missions and Schools of the Episcopal Church, about to be established, at or near Point Cresson," and the evidence showed that this mission was established and supported by the "Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States," and that society was held entitled to take it.^^ A testatrix devised and bequeathed part of her estate to the "Institution of the Blind of Philadelphia." There were two institutions for the blind in Philadelphia. The testatrix used the name by which one of them was popularly well known and the award of the legacy was made to that institution.^" A bequest was made to a person who was always called Samuel by the testator, though, in fact, named William; and whom the testator had nurtured and educated from his in- fancy ; when, on the other hand, he did not even know the per- son really called Samuel. It was held that the evidence to ex- plain these facts was proper to be laid before the jury,*^ but see next case in which it was held that when the description of a devisee applies with exactitude to one person parol evidence is inadmissible to show that another person, less exactly de- scribed, is the intended object of the testator's bounty.*^ Testator gave a legacy as follows : "Unto my nephew, Wil- liam Root." Testator had a blood nephew, William Root, son of a brother ; there was also a William Root, a nephew of his 27 Coleman v. Eberly, 76 Pa., 197. 28 Brownfield v. Brownfield, 20 Pa., 55. 29 Domestic & Foreign Missionary Society's Appeal, 30 Pa., 425. 30 Pa. Industrial Home's Appeal, 3 Penny., 429. 31 Powell V. Biddle, 2 Dall., 70. 32 Johnson's Appeal, 3 W. N. C, 52, S. C. l86 LAW OF WILLS IN PENNSYLVANIA. wife, but not of kin to the testator. Each claimed the legacy. It was held that there was no such ambiguity on the face of the will as to call for parol testimony to make clear the in- tention of the testator and that the nephew by blood was en- titled to the legacy.^^ Condition if Possible Construed as Subsequent Kot Precedent. 468. A condition will, if possible, be construed as a condi- tion subsequent and not precedent, so as to confer an immedi- ately vested estate.^* A Particular Intent Must Yield to a Oeneral Intent if Inconsistent Therewith. 469. An absolute estate will not be restricted unless a con- trary intent be unequivocally phown.^^ Overstatement of the Number of a Class. 470. When the testator overstates the number of the objects of his bounty, who are entitled to take as a class, the whole es- tate will pass to the smaller number of the class.^® When Words May be Changed or Implied to Ascertain Intent. 471. The courts may make such transpositions, insert im- plied words, and punctuate, when the context or general scheme of distribution warrants it.^^ Subsequent Provisions May Befine a Prior Estate and Give a Less Bight. 472. If a testator in one part of his will gives an estate of inheritance in lands or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the 33 Root's Est., 187 Pa., 118. 34 Wahl's Est., 26 W. N. C, 249. 35 Menoher's Est., 18 Pa. Super., 335; McMasters v. Shellito, 14 Pa. Super. 303. 36 McMasters v. Shellito, 14 Pa. Super., 303. 37 Walker v. Atmore, 30 W. N. C, 515 ; Hellerman's Appeal, 19 W. N. C, 269; Holland's Est., 6 W. N. C, 469; Klapp's Est., 19 Pa. Super., 150; Menoher's Est., 18 Pa. Super., 335. RULES FOR THE CONSTRUCTION OF WILLS. 1 87 devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly.^* General Rules of Construction Stated by Hr. Hawkins in His Work on tlie Construction of Wills. 473. I. In construing a will, the object of the courts is to ascertain, not the intention simply, but the expi'essed intentions of the testator, i. e., the intention which the will itself, either expressly or by implication, declares: or (which is the same thing) the meaning of the words — ^the meaning that is, which the words, properly interpreted convey. II. In construing a will, the words and expressions used are to be taken in their ordinary, proper and grammatical sense : — unless upon so reading them in connection with the entire will, or upon applying them to the facts of the case, an ambi- guity or difficulty of construction, in the opinion of the court, arises : in which case the primary meaning of the words may be modified, extended, or abridged, and words and expressions supplied or rejected, in accordance with the presumed inten- tion so far as to remove or avoid the difficulty or ambiguity in question, but no further. III. As a corollary to, or part of, the last proposition — tech- nical words and expressions must be taken in their technical sense, unless a clear intention can be collected to use them in another sense, and that other can be ascertained. IV. Notwithstanding the last two propositions the intention of the testator, which can be collected with reasonable cer- tainty from the entire will, with aid of extrinsic evidence of a kind properly admissible, must have effect given to it, be- yond and even against the literal sense of particular words and expressions. The intention, when legitimately proved, is competent not only to fix the sense of ambiguous words, but to control the sense even of clear words, and to supply the place of express words, in cases of doubt or ambiguity." ^** General English. Rules of Mr. Jarman for Construction of Wills. 474. I. That a will of real estate, wheresoever made, and 38 Kreb's Est., 184 Pa., 222 ; Pinkerton's Est., 193 Pa., 275. 38* Hawkin's Construction of Wills, p. i to 5, 2 Am. Ed. 1 88 LAW OF WILLS IN PENNSYLVANIA. in whatever language written, is construed according to the law of England, in which the property is situate; but a will of personalty is governed by the lex domicilii. II. That tech- nical words are not very necessary to give effect to any species of disposition in a will. III. That the construction of a will is the same at law and in equity ; the jurisdiction of each being governed by the nature of the subject; though the consequences may differ, as in the instance of a contingent remainder, which is destructible in the one case, and not in the other. IV. That a will speaks, for some purposes, from the period of execution, and for others from the date of the death of the testator; but never operates until the latter period. V. That the heir is not to be disinherited without express devise, or necessary implica- tion; such implication importing not natural necessity, but so strong in probability, that an intention to the contrary cannot be presumed. VI. That merely negative words are not suffi- cient to exclude the title of the heir or next of kin. There must be an actual 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 consistent whole ; but where several parts are absolutely irreconcilable, the latter must pre- vail. VIII. That extrinsic evidence is not admissible to alter, detract from or add to, the terms of a will ; though it may be used to rebut a resulting trust attaching to a legal title created by it or to remove a latent ambiguity (arising from words equally descriptive of two or more subjects or objects of gift.) IX. Nor to vary the meaning of words ; and therefore to at- tach a strained and extraordinary sense to a particular word, an instrument, executed by the testator, in which the same word occurs in that sense, is not admissible. X. Courts will look at the circumstances under which the devisor makes his will, as the state of his property. XL That in general, impli- cation is admissible only in the absence of, and not to control, an express disposition. XII. That an express and positive de- vise cannot be controlled by the reason assigned ; or by subse- quent ambiguous words, or by inference and argument from other parts of the will ; and accordingly, such a devise is not affected by a subsequent inaccurate recital of, or reference to, its contents ; though recourse may be had to such reference to RULES FOR THE CONSTRUCTION OF WILLS. 1 89 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 unam- biguous ; nor is the fact that the testator did not foresee all the consequences of his disposition, a reason for varying it. But when the intention is obscured by conflicting expressions it is to be sought rather in a rational and consistent than an ir- rational 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 render it valid; and therefore the court, in one instance, ad- hered to the literal language 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 grammatical 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 construction, which will give to every expresssion some effect, rather than one that will render any of the expressions inoperative ; and of two modes of construction, 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 appears by the context, or unless the words be applied to a different subject. And, on the same principle, where a testator uses an additional word or phrase, he must be pre- sumed to have an additional meaning. Lord Eldon was heard to lay down the rule in these words but there are cases where argument, that the testator, notwithstanding some variation of expression, had the same intention, in several instances pre- vailed. XIX. That words and limitations may be transposed, supplied or rejected, where warranted by the immediate con- text, as the general scheme of the will; but not merely on a conjectural hypothesis of the testator's intentions, however rea- 190 LAW OF WILLS IN PENNSYLVANIA. sonable, in opposition to the plain and obvious sense of the language of the instrument. XX. That words which it is ob- vious are miswritten (as dying with issue for dying without issue), may be corrected. XXI. That the construction is not to be varied by events, subsequent to the execution, but the courts in determining the meaning of particular expressions, will look to possible circumstances, in which they might have been called upon to afHx a signification to them. XXII. That several independent devises, not grammatically connected, or united by the expression of a common purpose, must be con- strued separately, and without relation to each other ; although it may be conjectured, from similarity of relationship, or other circumstances that the testator had the same intention, in re- gard to both. There must be an apparent design to connect them. XXIII. That where a testator's intention cannot oper- ate to its full extent, it shall take effect as far as possible. XXIV. That a testator is rather presumed to calculate on the dispositions in his will taking effect, than the contrary ; and, ac- cordingly, a provision for the death of devisees will not be considered as intended to provide exclusively for lapse, if it admits of any other construction. CHAPTER XIX. LEGAL DEFINITION OF WORDS. SECTION SECTION 475. "Heirs." 487. "Unimproved real estate.'' 476. "Children." 488. "Next nearest blood-rela- 477. "Issue." tions." 478. "Family.'' 489. "Legal representatives." 479. "Relations." 490. "Benevolence." 480. "Personal estate." 491. "Last sickness." 481. "Estate." 492. "Net income." 482. "Personal effects." 493. "Charity." 483. "Land property." 494. "Domicile." 483*. "For and during her natural 495. "Between." life." 496. "Or." 484. "Then living." 497. "Among." 485. "Brothers and sisters." 498. "Money." 48s*. "Spinster or unmarried 499. "Profits." nieces." SOD. "Cash." 486. "Property." 501. "Household furniture." 486*. "Devise of rooms ; for life." "Heirs." 475. In Pennsylvania, where the subject of the gift is per- sonal property taken substitutionally or under a limitation to heirs, by way of succession after a prior gift to an ancestor, the word "heirs" is understood as meaning those to whom such property passes under the statute of distribution, includ- ing a widow or husband of such first taker.^ The natural and ordinary meaning of the phrase "heirs agreeably to the intestate laws" is heirs at the testator's death ; yet when the tenant for life is himself the sole heir of the testator, and the will evidently excludes him from that descrip- tion, the expression must be understood as meaning heirs liv- ing at the death of the tenant for life.^ 1 Key's Est., 16 Pa. C. C. R., 456, s. c, 4 Pa., 281, O. C. Phila. 2 Merrifield's Est., 18 Pa. C. C. R., 287, s. c, S Pa- Dis., 463, O. C. Phila. 191 192 LAW OF WILLS IN PENNSYLVANIA. The word heirs in a will is to be understood in a strictly technical sense, unless controlled by the context, or unless, if so taken, it will be meaningless.^ If other provisions of a will and the circumstances sur- rounding its execution, show that the testator used the word "heirs" in the sense of "children" the children of the de- visee will be entitled to the land.* When a testator annexes words of explanation to heirs or heirs of the body, as heirs now living, etc., using the term for the specific designation of individuals, a new inheritance is thereby grafted upon the heirs to whom the estate is given, and they will be assumed to take as purchasers.^ "Children." 476. The word "children" is a word of purchase, and not of limitation, unless there is an express warrant for construing it otherwise in the will. Although the rules of construction permit the word "children,"' which primarily indicates not heritable succession, but individual acquisition, to be used in the more comprehensive sense of the words "heirs of the body" in cases in which a clear explanation will justify a departure from the ordinary meaning, yet there must be an express warrant for this change under the hand of the author of the gift, and conjec- ture, doubt, or even equilibrium of apparent intent will not suf- fice.^ The word "children" in a will does not include "grand- children" unless it appears from the context to be so intended by the testator, or such meaning is necessary to carry out his manifest intent.'' Illegitimate children will not be included unless the will shows an intent to include them.® "Issue." 477. The word "issue" in a will is to be construed as a word 3 Key's Est., 16 Pa. C. C. R., 45, s. c, 4 Pa. Dis., 281. 4 Wattach v. Horn, 201 Pa., 201. 5 Jones v. Jones, 201 Pa., 548. 6 Lancaster v. Flowers, 198 Pa., 614. 7 Castner's Appeal, 88 Pa., 478. 8 I Bouvier Diet., Word "Child." LEGAL DEFINITION OF WORDS. 193 of limitation, unless it be accompanied by explanatory words ; but if there be on the face of the will sufficient to show that the word was intended to have a less extended meaning, and to be applied only to children, or descendants of a particular class, or at a particular time, it is to be construed as a word of pur- chase, in order to effectuate the intention of the testator.® "Family." 478. In a devise to the family of A, persons of the blood of A are alone included.^" "Relations." 479. A devise or bequest to relations means those entitled under statutes of distribution." "Personal Estate." 480. The words "personal estate" mean goods, chattels, se- curities, moneys, and do not mean lands and houses. Where there is nothing in the will to indicate that the testator in using the words intended to use them in other than their usual sense, the court will not enlarge their meaning so as to include real es- tate.i2 A legacy of "all my personal estate, as household goods, fixtures and furniture," carries all the testator's personal estate, including building association stock. The rule that under a general gift which is qualified by words of description only such personalty will pass as is particularly enumerated, was not applied.^^* "Estate." 481. While in its popular use the word "estate" includes both real and personal property, when used in a strictly technical sense it applies to realty only. Its proper and technical meaning 9 Oliver's Est., 199 Pa., 509. 10 Heck V. Clippenger, 5 Pa., 385. 11 McNeilledge v. Galbraith, 8 S. & R-, 42. 12 Bruckman's Est., 195 Pa., 363. 12* Golz's Estate, 23 Pa. C. C. R., 249. 13 194 LAW OF WILLS IN PENNSYLVANIA. is the degree, quantity, nature and extent of interest which a person has in real property. ^^ "Personal EfiEects." 482. The words "personal effects" in a will embrace every form and species of personal property. It was held that the words "personal effects" mean articles associated with the per- son. "The words "household effects" mean articles belonging to the house. ^* The phrase "personal effects," in a will must be construed with reference to the context, and when used in connection with particular descriptive words will be restricted to particular kinds of property specified.^** "Land Property." 483. In case of a devise of "land property" the devisee took an estate in fee. The word property was large enough to carry an interest in the estate. ^^ "For and During Ser Natural Life." 483*. A life estate by the above words cannot be enlarged into a fee by the expression "so much thereof as may remain unexpended."^^* "Then Living." 484. The words "then living" will be construed to refer to the death of the testator, unless it clearly appears that he meant it to refer to a different period, and when the intention is ap- parent the courts have not been prevented by any rule of their own making from carrying it out, even though the result was to make the remainder contingent. The clause of the will on which the controversy in the case at bar arose is as follows : "I give, devise, etc., all my estate, etc., to my beloved wife, for and during her natural life, or as 13 Messmore v. Williamson, 189 Pa., 73. 14 Reimer's Est., 159 Pa., 212; Lippincott's Est., 173 Pa., 368. 14* Lippincott's Estate, 16 Pa. C. C. R., 388; affirmed 173 Pa., 368. 15 Foster v. Stewart, 18 Pa., 20. IS* McCreary v. Bomberger, 11 Pa. C. C. R., 68. LEGAL DEFINITION OF WORDS. 1 95 long as she remain my widow unmarried, and after her death or remarriage I give, devise, etc., the same unto all my chil- dren then living." Held, that the word "then" was used as an adverb of time and not as a conjunction signifying merely, in that case, in that event or contingency, and that it refers to the period of the widow's death or remarriage.^* "Brothers and Sisters." 485. A gift to brothers and sisters includes the brothers and sisters of the half-blood.^ '^ "Spinster or TTnmarried TSlieces." 485*. It was held that the words included nieces who were widows at the death of the testator ; that the words "or unmar- ried," were intended as explanatory of the word "spinster," and were not intended to designate an additional class of nieces. ^^* "Property." 486. Signifies every species of property. A devise of testa- tor's property will carry real estate.^ ^ Devise "of Kooms" for Life. 486*. In case of a devise of a house "Reserving, however, two of the rooms of said house for the use and during the life of W," it was held that W has an estate for life in the two rooms and not a mere easement for his personal use.^** "Unimproved Real Estate." 487. Does not include a farm under cultivation. ^^ "Next Nearest Blood Eolations." 488. May not mean heirs generally. While "next nearest 16 Thran v. Herzog, 12 Pa. Super., 551. 17 Luce V. Harris, 79 Pa., 432. 17* Conway's Estate, 18 Pa. C. C. R., 247. 18 Rossetter v. Simmons, 6 S. & R., 452. 18* Wusthoff V. Dracourt, 3 Watts, 240 ; McCalla's Estate, 16 Pa. Sup. R., 202. 19 Robb V. Robb, 173 Pa-. 620. 196 LAW OF WILLS IN PENNSYLVANIA. blood relations" may be heirs they are not necessarily all of the heirs.^" • "Legal Representatives." 489. Mean executors and administrators. But the con- text or subject-matter may show their use in a different sense.** "Benevolent." 490. The word benevolent used by a testator may be synony- mous with charitable.** "Last Sickness." 491. The sickness which is terminated by the death of the de- cedent, no matter how long its duration.** "Net Income." 492. Net income cannot be held to mean a diminution of principal or premiums paid for investments.** "Charity." 493. A charity is a gift to promote the welfare of others. A charity is not a "purely public charity" which excludes from its benefits any person because he has not a particular relation to some society, church, or other organization. However, there may be a charity not public. A charity may restrict its ad- missions to a class of humanity and still be public. But when the right to admission depends on the fact of voluntary asso- ciation with some particular society there may be a charity but not public.*^ "Domicile." 494. A person's domicile is the place where he has his true, fixed and permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning. Domicile is acquired by actual residence with the intention to re- side in a given place or country, and cannot be acquired in any 20 McCann v. McCann, 197 Pa., 452. 21 17s Pa., 494. 22 Murphy's Est., 184 Pa., 310. 23 Wasson's Est., 22 Pa. C. C. R., iii, 8 Pa. Dist., s. c, 480. 24 Beyer's Est., 23 Pa. C. C. R., 32 s. c, 8 Pa. Dis., 613. 25 Phila. V. Masonic Heine, 160 Pa., 572. LEGAL DEFINITION OF WORDS. 197 other way. If the intention of permanently residing in a particular place exists a residence in pursuance of that in- tention will establish a domicile. Domicile of origin must be presumed to continue until another domicile has been acquired by actual residence, coupled with the intention of abandoning the domicile of origin. The burthen of proof is on the party who asserts a change.^® "Between." 495. The word "between" properly refers to two and not more. Hence, when a testatrix provided that the residue of her estate shall be divided "between my husband and grandchildren and the children of A" the fund was awarded one-half to each class named.^^ "Or." 496. The courts will construe the word "or" to mean "and." 28 "Among." 497. "Among," "any" and "each" are used in distinguishing estates in common from joint tenancies.^® "Money." 498. "Money" in a will is to be taken as a gift of money in its literal sense, unless the context requires a broader interpre- tation.^" When so intended it may include any kind of property, even land, but it cannot have that effect when the text shows to the contrary. Money in bank means an individual credit in bank, not money of a firm in which testator was interested.^^ A bequest of "the remainder of my money," was held to pass realty purchased by the testatrix after the making of the will. 26 Price V. Price, 156 Pa., 617. 27 Ihries Est., 35 W. N. C, 60, S. C. 28 Menoher's Est., 18 Pa. Super., 335; Kelley v. Kelley, 182 Pa., 131. 29 Sturm V. Sawyer, 2 Pa. Super., 254. 30 Levy's Est., 161 Pa., 189. 31 Wilkinson's Est., 192 Pa., 89. 198 LAW OF WILLS IN PENNSYLVANIA. the estate at the time of the making of the will consisting of personalty only, and it appearing from the will and surrounding circumstances, that she intended to dispose of her entire estate and disinherit some of the heirs.^^* A bequest of "all the money I have in the Philadelphia Fund Society or elsewhere" does not pass real estate. It was held that the term "money" and the connection in which it was used by the testatrix meant cash.^^ *a Where the text of a will clearly shows such an intention the word "money" will be held to include bonds.^^*b The word "money" in a will may include all kinds of prop- erty, real and personal, if such was the intention of the testator, and that intention is to be ascertained by the context and sur- rounding circumstances.'^ *c "Profits." 499. "Profits" import the net amount after deducting any proper expense incident to a business.'^ "Casli." 500. Whether by the use of this word a testator means "money on deposit" or only cash in the house or on the person will depend upon the circumstances of the case or the condition of the testator's estate. It was held that a testator by a bequest of cash moneys, included money on deposit.'^ "Household Furniture." 501. By the term "household furniture," all personal chat- tels will be included that may contribute to the use or conven- ience of the householder, or the ornament of the house, as plate, linen, china, both useful and ornamental, and pictures. Goods of a business will not be included. Goods at a testator's home, where he eats, sleeps and lives are his household effects.'* 31* Jacob's Estate, 9 Pa. C. C. R., 40; affirmed 140 Pa., 268. 3i*a Metz v. Metz, 20 Pa. C. C. R., 601. 3i*b Smith's Estate, 19 Pa. C. C. R., 516. 3i*c Strawbridge's Estate, 18 Pa. C. C. R., 485. 32 Lepore v. Assn., s Pa. Super., 276. 33 Gilchrist's Est., 23 Pa. C. C. R., 602; s. c, 9 Pa. Dis., 249, O. C. Phila. 34 Roper on Legacies, *268; Hoopes' Appeal, 6 Pa., 220. CHAPTER XX. PRACTICAL SUGGESTIONS AS TO THE MAKING OF WILLS. SECTION 502. Provisions for a widow under the intestate law. 503. Provisions for a widow by the husband's will. 503*. Providing for a widow by means of a trust. 504. Purchasing an annuity for a wife. 505. Release of widow's right by marriage settlement. 506. Will in case a woman dies leaving a husband. 507. Right of election by husband against wife's will. 508. Protection of husband's inter- est against creditors. 509. Loss of husband's rights by desertion. 510. When husband or wife takes whole estate in default of heirs. SI I. Provisions for children and issue in wills. 512. Provisions for minor chil- dren. 513. Provisions in wills for fathers and mothers. 514. Making a will to settle and close a business. 515. Bequest of business directly to legatee. 516. Trust for carrying on a busi- ness after death. 517. Provisions in wills for con- tinuing partnerships. 518. Liability of a deceased part- ner's estate in case of con- tinuance of firm's business. SECTION 519. Liability of the executor of deceased partner if partner- ship continues. 520. In case a surviving partner forms a new partnership. 521. A sale of a deceased partner's interest. 522. Bequest of partnership inter- est to a son. 523. Surviving partner must con- sent to partnership with legatee of interest. 524. Preventing liability of de- cedent's estate to pay whole firm's indebtedness. 525. Wills in relation to partner- ship real estate. 526. Provision for a general part- ner in a special partnership bequeathing his interest under act 1838. 527. Disposing of special partner's interest in case of death under act 1838. 528. In case of death of limited partner under act 1874. 529. The preservation of a farm intact by will. 530. Devise of a farm to a widow in fee simple. 531. Devise of a farm to a widow for a certain period. 532. Devise of a farm in trust. 533. Avoiding partitions by wills. 534. Modes of dividing real estate to avoid partition. 535. The necessity and advan- tages of providing for in- vestments. 199 200 LAW OF WILLS IN PENNSYLVANIA. Provisions for a Widow TTiider the Intestate Law. 502. In case a man, having his home in the State of Penn- sylvania, should die intestate, leaving a widow and children or issue, his widow will become entitled to one-third part of his personal property absolutely, to one-third part of his real estate for the term of her life, and to cash or property to the amount or value of $300, under the widow's exemption law. The children or issue will become entitled to the balance of his es- tate. In case a man should leave no children or issue, his wife will have one-half of his personal estate, instead of one-third, and one-half of his real estate for life, instead of one-third, with the right to the benefit of the exemption law. Providing for a Widow by the Husband's WilL 503. Should the estate be small, it may be best to give it tu the wife ; but should it be large, it may be best to give her only what the law will give her. In case the estate should be large and all of it should be given to the wife for life, it may need- lessly accumulate, so that children will not receive any benefit therefrom during the lifetime of their mother. If the wife should be given the whole estate, she may marry again, and have children by a second marriage, and by her will she may give the estate to her second husband, or to his children, or she may keep the estate intact so that the testator's children will have to needlessly wait until her decease for their portions. There may be cases, however, where the estate is large, and where it may be necssary that the widow should have it all for life, as where the whole income will be required to keep and to continue a home in the same way as during the lifetime of the testator. Generally it will be the duty of a man to see that his wife will be well provided for for life in case of his decease. It may be desirable that her share shall be securely invested; that security should be preferred to a large income; that in- vestments with good security should be preferred, to the stocks, or corporate bonds, liable in the course of time to fluctuate, fall or become worthless. Providing for a Widow by Ueans of a Trust. 503*. A wife who has been supported and maintained by her PRACTICAL SUGGESTIONS. 201 husband naturally expects that the same support shall be con- tinued for the remainder of her life. It will be important that what is left for her shall remain as far as possible intact, with- out the possibility of a loss or diminution. Sometimes a life estate is given to a widow, and the remainder to children, with- out a trust, or even with a trust ; and the wife and children com- bine to break the trust or to sell and divide the proceeds. A widow will naturally try to please and carry out the desires and suggestions of children, and in doing so, may yield in their favor what ought to be preserved for her for life. To avoid any such results, a suitable part of the husband's estate can be given to a trustee, in trust to pay her the net income for the term of her life or so long as she shall remain unmarried, so that the principal and income of the trust shall not be subject or liable for or to her debts, liabilities or creditors, or her grants, assignments, transfers, pledges or anticipation. The incorporation of a "spendthrift clause," with the above restric- tions, may be the means of preventing any combination to im- pair the provision for the widow. If the testator has any fear that his wife will marry again against his desire, it can be pro- vided that in case of such marriage, the amount of income may be decreased, or a certain part of the principal, or corpus, of the trust can be given to other persons. There may be cases where the income from a trust for a wife may be decreased by a falling off in the value of property, loss of rents, or interest, or other cause. In such cases there can be a provision that the trustee in his discretion, may use so much of the principal, or corpus, as to supply any such deficiency or to make the income amount to a certain sum in any event. Supposing there is a trust for a wife for life, the trust provision may provide that upon her de- cease the corpus shall go to the children, or issue of children, of the testator, or according to the will of the wife by appoint- ment if she should not marry again. In case a man should leave children, and should leave all his property in trust for his wife there can be a provision that upon the children attaining a certain age, they shall be paid a portion of the principal, or corpus, of the trust, or that upon the marriage of daughters, they shall be paid a portion of the trust property, which can be 202 LAW OF WILLS IN PENNSYLVANIA. given as advancements on account of what may be coming to them upon the decease of their mother. Purchasing an Annuity for a Wife. 504. A testator can direct that an annuity shall be purchased for his wife. While this may be a secure way of providing for her, the risk of her death and consequent loss of the price of the annuity may be considered. If there are no children, issue or other immediate relatives to be regarded or provided for, the mode of purchasing an annuity may be adopted. Even if there be near relatives, and they be well provided for, the pur- chase of an annuity might be adopted in order to avoid the difficulty there might be in perfectly securing the widow's inter- est. As there may be danger of the wife claiming the price of the annuity without its purchase, the purchase can be confided to a trustee by a trust which cannot be waived or broken. Belease of Widow's Bight by ]yiarriage Settlement. 505. Upon a man's marriage his wife's right to his estate upon his decease becomes fixed. He may prevent such results by articles of marriage-settlement. When a man has a large es- tate and has children by a first marriage he may think it best, upon a second marriage, to have such a settlement, whereby his second wife may agree to accept a lesser portion of her hus- band's estate than the law would give her. Will in Case a Woman Dies Leaving a Husband. 506. In the State of Pennsylvania a husband will have a life estate in his wife's real estate as tenant by the curtesy. The wife cannot deprive her husband of that right by her will. By the intestate law of 1833 where a wife left a husband, he took the whole personal estate but by the Act of 1848 it is provided : "If a married woman leave a child or children living, her per- sonal estate shall be divided amongst the husband, and such child or children, share and share alike ; if any child or children being dead, shall have left issue, such issue shall be entitled to the share of the parent." Under Act of 1848 the husband may be treated unfairly as to his wife's personal estate. Sup- posing the wife's estate should consist principally or wholly PRACTICAL SUGGESTIONS. 2O3 of personal estate, he will share with children — supposing the wife should leave eleven children the husband will only be en- titled to one-twelfth of the estate. Supposing the wife leaves children of deceased children, the husband will have to share with them. The only remedy for such results will be the wife's will. The estate may be small and it may be best for the wife to give the husband all her personal estate and all her real estate, if any, in fee. If the estate should be large, and the husband should have a large estate, a wife may think it proper to leave all her estate to her children or relatives. Bight of Election by Husband Against Wife's Will. 507. In case a wife should make a will, and her husband be dissatisfied with the provisions made for his benefit, he can elect to take the same his wife could have taken by election out of his estate against his will, excepting under the $300-law. That is to say, one-third part of the real estate for life and one-third part of the personal property absolutely, in case there should be any children or issue, or one-half part of the real estate for life and one-half part of the personal property in case of no children or issue. In case the husband should make such an election, he will be deprived of his right as tenant by the curtesy, and he will have only a life estate in one-third or one-half of the wife's real estate instead of a life estate in the whole real estate as tenant by the curtesy. Protection of Husband's Interest Against His Creditors. 508. If the husband should be insolvent, the wife can give his portion to a trustee for him, to protect it against his creditors by a "spendthrift trust," with a provision that the trustee in his discretion can let him have portions of the principal of the trust estate. Loss of Husband's Bights by Desertion. 509. If a husband deserts his wife, or neglects to provide for her, for one year preceding her death, he will lose his rights to 204 LAW OF WILLS IN PENNSYLVANIA. his wife's property under the intestate laws and as tenant by the curtesy.^ There may be cases where a wife will desire that her hus- band, notwithstanding his desertion or neglect to provide for htfr shall have at least what the law would have given him, and in such case it may be well to provide for the husband in a will. When Husband or Wife Take Whole Estate in Default of Heirs. 510. In default of known heirs or kindred competent, the real estate of an intestate will be vested in his widow ; or if such intestate were a married woman, in her surviving husband, for such estate as the intestate had therein. If the real estate of a husband or wife is of great value he or she may possibly desire to leave property to other persons. Provisions for Children and Issue in Wills. 511. Subject to provisions for wives and husbands, a per- son's property will descend or go to their children, and to issue of children by representation. If an estate is small, a testator may prefer that his estate shall go to his children alone, ex- cluding grandchildren or issue. Some of the children may be minors needing support, and others may be adults able to sup- port themselves, while still others may have husbands able to support them. Some may have received their shares in ad- vance. Some may be incompetent or unfit to take charge of their shares after becoming of age. Some may have creditors who may attach or levy on their shares. To provide for the last-named cases it may be best to give certain shares in trust, etc. In providing for children, daughters especially, if estates are sufficient testators can reserve trust portions to last a child's lifetime, so that they will always have a portion to rely upon. Provisions for IKinor Children. 512. In case a parent dies leaving minor children, guardians should be appointed by will for their estates. A father, by his will, may appoint a guardian for his minor children, called a testamentary guardian. If this is not done, children over four- I Act of May 4, 1885, Sect. S, 2 P. & L. Dig., 2902 ; P. L., 430. PRACTICAL SUGGESTIONS. 20$ teen years of age can choose guardians for their estates; and for the estates of children, under fourteen years of age, the orphans' court will appoint persons suggested by relatives or friends. By a will, special provisions can provide for the care, custody, education and maintenance of minors. As to mothers appointing guardians, see chapter as to the appointment of guardians. A minor cannot make a will in the State of Penn- sylvania. In case a parent should leave a portion of his estate to a minor, and such minor should die during minority, without leaving issue, his or her portion of personal estate will go, sub- ject to any rights of a husband or wife, to the surviving parent absolutely and his or her real estate will go to the surviving par- ent for life subject as aforesaid and the remainder of a deceased child's estate will go to surviving brothers and sisters and the issue of deceased brothers and sisters. A parent may prefer that the shares of children dying in minority shall only go to surviving children, and can make a will accordingly. In giving interests to minor children contingent upon their arriving at full age, it may be well to consider that there is a possibility of such children marrying and having children who may not be provided for. The will can provide that minor chil- dren shall have the income on shares during minority, al- though their right to principal shall be contingent upon their becoming of full age. Provisions in Wills for Fathers and Mothers. 513. In case children die intestate without leaving issue their real estate will go to their parents for life and their personal es- tate to them absolutely subject to any rights of widows or sur- viving husbands. The parents are preferred to brothers and sisters and their issue as to personal property. It may be that parents are wealthy and there may be brothers and sisters need- ing assistance or there may be cases when there may be a desire that brothers and sisters of a testator shall have all, or receive something, or father, mother, brothers and sisters may be wealthy and consequently there may be a disposition to leave something for charitable or religious purposes. In case a father and mother, by reason of age, misfortune, or other circumstances, should have been partly or wholly sup- 206 LAW OF WILLS IN PENNSYLVANIA. ported by a child such child may naturally desire such support continued and provide accordingly. If a child should not pro- vide for the support of his or her dependent parents, they may have to depend upon the bounty of others, and in the course of time there may be distant relatives who may be reluctant to aid in supporting them. It may be a good plan to give a sum in trust for parents for life which may be made by a spendthrift trust, or one that the parents cannot imperil, or in any way dis- pose of or affect. If the parents should be advanced in years it may be well to give money in trust to purchase annuities for them. Slaking a Will to Settle and Close a Business. 514. In case a man should die intestate, it will be the duty of his administrator to settle and close his business, and to sell a lease and good will, if possible, within the year allowed for the settlement of the estate. There may be cases where executors may be bound to continue the business of the testator to a cer- tain extent to prevent a sacrifice, but such continuance should have for its object the closing of the business and not its mere perpetuation. The orphans' court of Philadelphia county treat- ed an executor very liberally in approving of his having car- ried on the business of a testator for a considerable period. But the court held, however, that "the safe rule for an executor, who desires to curtail as far as possible the responsibility inci- dent to his office, is to convert at the earliest moment the as- sets of the testator into money. But there are cases when a rule which insures safety to the executor may work disastrously to the estate." In the case decided the continuance was greatly to the benefit of the estate. The court held that it might have been otherwise had the estate suffered by the continuance. Be- sides this, the widow who objected to the continuance, had ap- proved of it.^ In case of a business to be settled and sold the owner can give directions in his will giving his executors ample time, op- portunity and discretion in doing so. 2 Bowker's Est., S W. N. C, 493- PRACTICAL SUGGESTIONS. 20/ Bequest of Business Directly to Legatee. 515. A testator can directly bequeath his business to a lega- tee, including all the personal property thereof, such as lease, good will, stock, fixtures, claims and demands due or payable to the testator in his business. As to claims and demands pay- able by the testator, there can be a condition of the bequest that the legatee shall in writing first assume the payment thereof and indemnify the testator's estate against being made to pay the same. Such bequests may be made to a son, and there may be other children ; and to equalize shares the value of the busi- ness can be ordered to be deducted with or without interest like an advancement on account. There may be cases when the value of a business will greatly exceed a son's share, and where the testator may direct that other shares be paid by the son. This may be a very difficult and dangerous matter to manage properly. A business may be large, prosperous and increasing, but it may be dangerous to burthen a son with the obligation to pay other shares. If a business is to be kept up and run according to its usual course, the abstraction of money for outside purposes may eventually result in its ruin. A testator may have been in the habit of spending the profits of his business in supporting his family, and after his decease the expenses of his family may be about the same, and if the son is required to take out money for that pur- pose the business profits must decrease, so that capital may be gradually consumed. If a testator's family is to be supported out of a business, it is suggested that such support should be from income only and that the capital should remain intact until the business is closed or disposed of. In case of a bequest of a business to a son, and the value thereof should exceed the son's share of the estate, there can be a provision to sell to the son and a partner whom he may take, who will contribute money sufficient to pay the estate the difference between the advancement to the son ar;d the full price. Trust for Carrying on a Business After Deatli. 516. The preserving and carrying on the business of a testa- tor after his decease may be done by means of a trust. Such 208 LAW OF WILLS IN PENNSYLVANIA. trust may be made to conform to a variety of circumstances, and seems to be a very suitable and convenient method of car- rying out such purpose. Being a trust, the laws relating to trusts will generally apply. There should be a trustee, a bene- ficiary, and such a purpose and method as the law will recog- nize. A testator gave a portion of his estate lo his son in trust to possess, hold and manage the same during his life, and out of the profits thereof to make investments, or purchase property for the use of the trustee's issue or heirs at his death. The trustee was authorized and empowered to invest trust property in a business, and to carry on the same for the benefit of the trust, subjecting the trust estate to such debts only as should be contracted in the execution of the trust. The trustee was to be allowed a reasonable support out of the trust for his per- sonal services rendered. The main purpose of the trust was to preserve the trust property from the debts of the trustee which he had contracted in an unfortunate business. It was held that the trust for accumulation was void under the Act of 1853 pro- hibiting accumulations for adults.* When a business is carried on by a trust there will be danger of profits resulting in an illegal accumulation, but it may possi- bly be prevented if proper care is exercised. The property can be valued at the start, and the net profits can be ascertained and paid as in the case of partnerships. It can be ordered that the net profits shall be paid to certain parties as beneficiaries. As respects the property invested in the business that can be made subject to the debts and liabilities of the business. The liabilit}- can be confined to that property and it can be ordered that the rest of the testator's estate shall not be liable. There can be . a spendthrift provision protecting the shares of beneficiaries. Supposing a father should desire his business carried on for a son until he becomes of a certain age. In such case he can give his business to a trustee in trust to carry the same on with all necessary or proper powers and to pay the net profits of the business to the son for life free from liability for his debts, or contracts, with remainders over, and the testator can authorize the trustee to assign and transfer the business to the son absc- 3 Brown v. Williamson's executor, 36 Pa., 338. PRACTICAL SUGGESTIONS. 20g lutely free of any trust upon his arriving at a certain age or at any time after arriving at a certain age when he shall think it proper to do so, or he can terminate the business at any time when he shall think it necessary and proper to do so, and in such case he can hold the proceeds in trust for the son for life or for any other valid time, or the trustee can be authorized to sell the business and its property to the son free of the trusts and the price or a part of the price can be as an advancement on account of the son's share of his father's estate or the trustee can hold the business in trust for a widow for life to pay her the net profits free from her debts with a power to terminate the trust and sell the business and invest the proceeds for the wid- ow for life. A trustee, however, may not be competent or willing to ac- tively carry on the business himself. In such case he can have authority to appoint and pay a superintendent or other person to carry the same on. The testator could name such a person to act with a power of the trustee or other person to appoint a successor. The trustee can be ordered to be paid from the busi- ness a certain sum or an amount equal to a certain share of the profits, and the superintendent can be paid a certain sum fixed by the testator or the trustee which sum shall be separate from the compensation of the trustee. It will be important for the trustee to have all the powers to conduct and carry on the busi- ness that the testator would have had with power to terminate and wind up the business at any time he may consider it neces- sary or proper for the safety or benefit of the trust, and in case of such termination he can be ordered to invest the capital and property of the business in legal investments or securities or such investments or securities as he may think proper. For such a trust it will be important for the will to provide for a succession of the trustees in case of the death, resignation, re- moval or incompetency of the trustee, and such successor or successors should have and be given all the powers and dis- cretions in carrying on the business that the original trustee may have. A trustee would have to contract new debts and might become personally liable for such debts, but he will have it in his power to terminate the business before insolvency and thus protect himself. In the carrying on of a trust business as above 14 2IO LAW OF WILLS IN PENNSYLVANIA. indicated, it seems that care should be exercised so as not to cripple or ruin the business by the abstraction of capital which may be always necessary to maintain the credit and working capacity of the business. Even a gradual encroachment on cap- ital resulting from a deficiency of income or profits may in the course of time be ruinous. According to the terms of a trust above indicated, a trustee without a warrant by the will would have no right to take principal to make up the required income. If a testator should have other property to be invested to pay the income to the same parties who will receive income from the business, the trustee can be authorized in case of necessity, at any time, to change the investment into capital in the busi- ness. If a business can be well continued for a lifetime, say for the benefit of a widow for life with a remainder, say to children, a trust above indicated may be a good mode of settling an es- tate, but if there will have to be a division soon then the best mode may be to continue the business for a while and then sell it as far as possible intact or like a plant. Provisions in Wills for Continuing Partnerships. 517. By a general rule of law, a partnership is dissolved by the death of one of the partners. Such an event happening suddenly must generally be inconvenient and sometimes dis- astrous. It is customary to have a provision in articles of part- nership providing that in case of the death of a partner the partnership shall be continued for a certain period, and partners sometimes provide in their wills for such continuance. It will be best to have such a provision in the articles of partner- ship, for if there should be only a provision in a will the sur- viving partner will have to consent to the continuance. Liability of a Deceased Partner's Estate in Case of Continuance of Firm's Business. 518. In case of a continuance of the firm business after the death of a partner by will or contract the liabilityof the deceased partner's estate will be limited to the amount already invested therein by the testator, unless it appears by his will by the most clear and unambiguous language, demonstrating in the most positive manner that he intends to make his general assets li- PRACTICAL SUGGESTIONS. 211 able for all the debts and contracts in the continuance of the business after his death.* Liability of the Executor of Deceased Partner if Partnership Con- tinues. 519. No general liability of an executor to the general cred- itors by reason of the firm's business being carried on will exist unless he shall enter into partnership with the sur- vivors. Articles of partnership which simply provide that on the death of one partner his capital shall be left in the business until the end of the partnership term, do not require the admission of the executor of a deceased partner in the management or control of the business, and if he do not personally engage in the business, he will not be personally liable for debts, though he leaves the testator's capital in the business. In such case creditors becoming such after the death of one of the partners have only the liability of the surviving partner by whom the business is carried on and the se- curity of the capital of the deceased partner which is left in the business.^ In Case a Surviving Partner Forms a New Partnership. 520. A change of partners by transfer or death necessarily results in a dissolution of the firm ; if the business goes on with a new partner in the place of the old this involves the organi- zation of a new firm.® It seems that there should be some pro- vision for the case of the surviving partner being desirous of having a new partnership formed by the introduction of new partners. That the executor in his discretion should have the right to terminate the partnership before the period fixed in the agreement and will, and to have an account and settlement and that thereupon the executor could sell to a new firm the interest of deceased partner's estate. Such an arrangement, howeve--, may result in the obligation of the new firm in the place of the assets of the testator's firm. 4 Huber v. Wood, 14 Pa. C. C. R., 13. 5 Wilcox V. Derickson, 168 Pa., 331. 6 Wilcox V. Derickson, 168 Pa., 331. 212 LAW OF WILLS IN PENNSYLVANIA. A Sale of a Deceased Partner's Interest. 521. A will can provide for the sale by an executor of the in- terest of a deceased partner in a partnership. In order to as- certain what will be a proper price for such sale, a partnership account will have to be taken, and the deceased partner's share ascertained. Such account is usually made by the sur- viving partners and it is proposed, if they or their relatives or friends are to buy out the old business, that the executor should be directed to choose experts in the same line of busi- ness to make a valuation or to test the valuation made by the survivors. For instance, suppose a portion of the assets of the firm should consist of real estate, fixtures, machinery, and the like, it may be necessary to have an expert valuation. The as- signment by the executor of the deceased partner's share should generally be accompanied with an agreement in writing of the purchaser or of his firm to assume and pay the firm debts and liabilities and to indemnify the estate from being made to pay such debts and liabilities. As to the payment and security of the price the same difficulties may arise as in the case of an executor selling a testator's sole or separate business, hereto- fore referred to. In case of a sale on credit the interest sold will become the property of the purchaser and the executor will have nothing but the personal obligation of the purchaser. There may be complexity from a new partnership being formed and a danger in not being able to collect in case of insol- vency. In case survivors should purchase their deceased part- ner's share, the payment of the price may be made by the ab- straction of capital which may embarrass or ruin the firm. The best course both for the estate and the survivors would gen- erally be for the survivors to get a new partner to purchase the interest of the decedent and a testator may authorize a sale only in that way. Bequest of Partnership Interest to a Son. 522. In case a testator should be desirous of having his son substituted as a partner in his place, he can make a bequest to him of the testator's interest in the old firm, provided that the survivors will agree to admit his son as a partner in a new firm. In such case the business will go right on, the son tak- PRACTICAL SUGGESTIONS. 2I3 ing the place of the father. If a son is a minor, there can be a bequest to him of such share upon his becoming of a certain age, providing the survivors will admit him when of that age. There can be a direction for the surviving partners to continue the capital of the testator in the business until the time for ad- mission. The bequest to a son in such case may be directed to be as an advancement to him, with or without interest, on ac- count of his share of his father's estate. Before the introduction of a son into the partnership, if not going to school, articles of partnership can provide for his em- ployment to assist and learn the business until such introduction. Authority can be given to executors or trustees to make such agreements and arrangements as they may think proper for a son's introduction into any partnership between the survivors and outside parties. Surviving Partner Must Consent to Partnership With Legatee of In- terest. 523. A Specific bequest by a partner of his share in the part- nership does not entitle the legatee to become a partner him- self unless there is some agreement to that effect binding upon the surviving partner. Preventing Liability of Decedent's Estate to Pay Whole Firm Indebt- edness. 524. In case a partner dies, the creditors of the partnership can claim to be paid at the settlement of the deceased partner's estate, the full amount of their claims whether the surviving partner be solvent or not.'^ The reason of such law is, that partners are jointly and severally liable to pay the debts of a partnership. Executors generally have their accounts settled in an orphans' court at the end of a year from decedent's death, when distribution is ordered to be made and all creditors who do not present their claims at the settlement are barred from claiming to be paid from the property distributed. If a firm's business is continued by the articles and a will for a year after 7 Blair v. Wood, 108 Pa., 278. 214 LAW OF WILLS IN PENNSYLVANIA. a partner's death, during that time all the debts of the old firm may be paid off and a new set of creditors may exist of those who have sold goods in continuing the business. Such new creditors will probably have no right to demand payment from a deceased partner's estate. Anyhow if they should not present their claims at the audit of the executor's account they will be barred. If a will should provide for the sale of a deceased partner's share to the surviving partners, or to a new firm who will as- sume the old firm's indebtedness there will be a probability of •the creditors of the old firm looking only to the surviving part- ners or the new firm for payment. Wills in Kelation to Fartnership Keal Estate. 525. When two or more partners take title to land as ten- ants in common, the presumption arising from the deed is that they hold as tenants in common. As between themselves the deed is not conclusive, but they hold in accordance with the facts. As to purchasers and creditors they hold in accordance with the recorded title. If real estate is purchased with part- nership funds and for partnership purposes, the general rule is, that it is thereby made partnership assets; but as to pur- chasers and creditors, the deed will control ; as the parties will be presumed to have put their title on record in accordance with the facts and those that deal with them have a right to set up this presumption. When it comes to the question of distribu- tion of the proceeds of a sale of land so held, the individual creditor of a co-tenant will have priority over the firm claiming by virtue of its title. Where one of two partners purchases land with partnership assets and causes the deed to be made to the two partners as tenants in common, an individual judg- ment creditor of the other partner will be entitled to priority in the distribution of the proceeds of the land over a claim of the first partner for a balance due from his co-partner in the final accounting.* Where it is the intention of partners to bring real estate into the partnership stock that intention must be manifested by deed or writing placed on record that pur- 8 Stover v. Stover, 180 Pa., 425. PRACTICAL SUGGESTIONS. 21 5 chasers and creditors may not be deceived. A partnership con- sisting of two persons was engaged in the business of dealing in real estate. To facilitate the purpose of the business partner- ship land was conveyed to one of them by consent of both part- ners. The deed was placed on record unaccompanied by any agreement disclosing the interest of the other partner. Money was borrowed by the grantee in the deed on his personal judg- ment, which was entered of record against the land as he then held it. Held that nO' averment of any right by parol or by se- cret agreement in writing could be permitted to stamp the property with the quality other than that expressed in the deed and thus destroy the lien of the judgment creditor. In such a case the proceeds of the sale of the land are to be applied tO' the payment of the lien of the judgment creditor in preference to the assignment of the firm for the benefit of the creditors.® It sometimes occurs that the real estate of a firm for conven- ience is conveyed to one partner and it often occuirs that the real estate is conveyed to the partners as tenants in common without anything to show that it is partnership property. It is the general belief that it is best to convey to parsers as tenants in common. The above cases show the danger of such courses. In such cases the partnership property is at the risk of claims against partners individually. Though an individual creditor may have notice that property is held and used as firm property this will not prevent an individual creditor having a preference over a partnership creditor. As to creditors the deeds fix the status of the property and that status cannot be altered by parol. In case a partner or partners hold a title but with nothing to show that the property belongs to the partnership, it seems best for them to make a formal declaration of trust, duly ac- knowledged, showing that the property belongs to the firm. Such declaration should be recorded, as outside parties without notice can treat the property as individual. In case a partner should die without there being such a declaration made and delivered there may possibly be difficulty and trouble in settling the estate. It seems that a testator could declare in his will that 9 Gunnison v. Loan Co., IS7 Pa., 303. 2l6 LAW OF WILLS IN PENNSYLVANIA. such property is firm property and devise it to his surviving partner in trust to sell and dispose of the same as partnership property as an asset of the partnership and account for the proceeds of sale in settling with the executors for the testa- tor's interest in the partnership. In case of a sale by an execu- tor of the testator's interest in the partnership to the surviving partners the executor could be authorized to convey the real estate to them in settlement or the executor can be authorized to sell and convey in such way as he may think proper to settle the partnership business. Real estate purchased and used as partnership property does not constitute the owners tenants in common after the active prosecution of the business is determined. The partnership af- fairs not havmg been fully settled, it remains a partnership as- set, in the absence of conversion by settlement of the partner- ship affairs or otherwise, i" Provision for a General Partner in a Special Partnership Bequeathing His Interest Under Act of 1838. 526. A general partner may with the assent in writing of his partner by will bequeath his interest in such limited partnership and when a general partner dies without any disposition of his interest his executor or administrator may sell and in such case a corresponding alteration shall be made in the name of the firm, and acknowledged, certified, recorded and published in the same manner as is provided by law in the case of the origi- nal formation of the partnership.^ ^ Disposing of Special Partner's Interest in Case of Death ITnder Act of 1838. 527. When any special partner shall die, without having dis- posed of his interest in the limited partnership his executor or administrator may either continue his interest therein for its unexpired term, for the benefit of his estate, or may sell the same at public auction, under the directior of the orphans' court of the county in which the principal place of business of 10 May V. Troutman, 4 Pa. Super., 42. 11 Act of i6th of April, 1838, P. L., 689, Sect, i, Q. 10, l P. & L. Dig., 2696. PRACTICAL SUGGESTIONS. 21/ such partnership may be, in the same manner as the estates of intestates are now by law sold; testamentary dispositions in writing, of the interest of special partners may also be made; the decease of such special partner shall not dissolve such lim- ited partnership unless by the agreement between the parties it is provided that such decease shall have that effect.^ ^ In Case of Death, of Limited Partner under Act 1874. 528. "Interests in such partnership associations shall be per- sonal estate, and may be transferred, given, bequeathed, dis- tributed, sold or assigned under such rules and regulations as such partnership associations shall from time to time prescribe by a vote of a majority of the members in number and value of their interests ; and in the absence of such rules and regulations, the transferee of any such interest in any such association shall not be entitled to any participation in the subsequent busi- ness of such association unless elected to membership therein, by a vote of a majority of the members in number and value of their interests. And any change of ownership, whether by sale, death, bankruptcy or otherwise, which occurs in the ab- sence of any rules and regulations of such associations regu- lating such transfer, and which is not followed by election to membership in such associations, shall entitle the owner as transferee only to the value of the interest so acquired at the date of acquiring such interest, at a price and upon terms to be mutually agreed upon, and in default of such agreement at a price and upon terms to be fixed by an appraiser to be ap- pointed by the court of common pleas of the proper county, on the petition of either party, which appraisement shall be subject to the approval of said court." ^* If a testator should be a member of a limited partnership association he may be instrumental in having rules and regu- lations made so that he can dispose of his interest as he shall desire and so that proposed legatees by reason of owner- ship shall become members without being elected. 12 Act of i6th of April, 1838, CI. 13, P. L., 689; i P. & L., 2696, Q. 13. 13 Act of 2Sth of June, i88s, P. L., 182, Sect, i, of P. & L. Dig., 3405 ; la re Henry Disston Son's File Co., 8 W. N. C, 58. 2l8 LAW OF WILLS IN PENNSYLVANIA. Preservation of a Farm Intact by Will. 529. The preservation of a farm intact must often be of paramount importance. In case a farmer should have a large family, especially when containing adult sons and daughters, and should die intestate, the probable result will be that the farm will have to be sold. When heirs become entitled to their shares of undivided real estate they naturally may desire to re- ceive cash for such share and the consequence may be that one or more of them may require a sale by means of a partition proceeding. By means of a will a farm may be preserved fro'.n an early sale in several ways. Devise of a Farm to a Widow Intact by Will. 530. A farmer may devise and bequeath to his wife in fee simple and absolutely his farm including the mansion house with the household goods and furniture therein, all the farm buildings, fixtures and erections ; all the implements, tools, ve- hicles, horses, live stock, grain, hay, straw, and produce, and other farming property on or belonging to the farm at the time of the testator's decease, but in such case the widow can sell or mortgage the farm and she may be influenced to do so. Devise of a Farm to a Widow for a Certain Period. 531. A testator may devise and bequeath his farm to his wife for life, or as long as she shall remain unmarried, or for a certain time, or until a younger child shall become of full age, etc. The household goods and furniture, the other personal property on the farm, including farming implements, tools,, vehicles, live stock, grain, hay, straw, produce, etc. can be given to the wife absokitely. As a wife may possibly rent the farm there can be a condition that she shall continue to reside thereon and not rent it and that in case she rents or removes the farm shall be sold by an executor and the proceeds divided. The will can provide for the disposal of the farm after the rights of the widow have expired. In case the widow shall be given a life estate she may possibly combine with those entitled to the remainder and sell or mortgage the farm, and she may be in- fluenced to do so. To avoid such results the farm can be given PRACTICAL SUGGESTIONS. 2I9 to a trustee in trust for the wife in such a way as to prevent such combination. Devise of a Farm in Trust. 532. By means of a trust a farm may be disposed of in a variety of ways according to the circumstances. For instance, there may be a trust to permit a wife to reside upon it and to farm it and to use the dwelling house, the household goods and furniture, buildings and fixtures thereon and other personal property, with the profits from the farm itself, for her own use and benefit for the term of her life or as long as she shall re- main unmarried or until a certain period, for instance until all the children of the testator are of full age — there can be pro- visions that any unmarried children until married or minor children until they shall arrive at full age, shall have the right to reside on the farm and to be supported and maintained from the profits of the farm, with the right of the mother to charge such children for board as are able to pay the same. There can be a provision that the wife shall pay the taxes, keep the farm in repair excepting in case of damage or loss by fire or other cas- ualty and that she shall have the farm cultivated in a husband- like manner; any property on the farm such as grain, straw, hay, manure, produce, horses, live stock, etc., may be given to the wife absolutely. There can be a devise of a farm in trust the trustee to rent the same and pay the net rents to the wife, children or other persons for a certain period. In this way a farm can be kept so that a son, upon arriving at a certain age, can rent, purchase or be a devisee of the same. One of the difficulties in keeping a farm for any considerable time after the death of a testator is that in such case there can be no division, as there would have to be a sale for that pur- pose. Whilst the farm can be given or sold to a particular heir he may have difficulty in raising money to pay other heirs. If the shares of other heirs are secured by mortgages or charges, the payment thereof in the course of time will fall due and the heir taking the farm may not be able to make such payments. If there is an only son a farm can be left in trust for a wife for life and then for a son for life with remainder over. A farm can be left in trust for a son for life so that he can 220 LAW OF WILLS IN PENNSYLVANIA. occupy and work it with a condition that he shall permit his mother to reside in the mansion house with him and that he will maintain and support her during her lifetime and supply her wants as the testator did during his lifetime and that in case of his failure to do so, or in case the wife shall be deprived of such occupancy or cease to be so supported and maintained for any cause, or in case of the son's death the farm shall be sold by the trustee and a provision can be made for supporting the mother from the proceeds of sale. Avoiding Partitions by Wills. 533. It often occurs that testators leave all their real es- tate undivided to their children. By such a devise, the chil- dren will take as tenants in common. Whilst a will may be apparantly simplified by such a devise, the results may be great trouble, expense and complexity. In case of a tenancy in com- mon, if there cannot be an amicable partition, it will be neces- sary to resort to legal or equitable proceedings for a partition. Until a partition or sale in partition is made, there may be complications as to occupancy, the renting of the real estate, the division of the rents, etc. As time runs on, by deaths, wills, and conveyances of the separate co-tenants, the title may be complicated and the different interests made difficult to man- age. The widow's interest if any may be the cause of much complexity and trouble. It will be in the power of only one of a number of tenants in common to force a partition or to have the real estate sold in case there cannot be a partition by pro- ceedings in the courts. In thus forcing a peremptory sale re- gardless of the condition of the market, and by reason of the property going to the highest bidder there may be a great sac- rifice. To avoid such judicial proceedings the will may make a partition or provide for a partition. Modes of Dividing Beal Estate to Avoid Partition. 534. Many of the results which may happen by reason of a partition of real estate may be avoided by a will. Supposing a man have real estate in such a condition that it can be appor- tioned and divided between intended devisees, he can himself PRACTICAL SUGGESTIONS. 221 make a partition. For instance, if he has a wife and children he can place a valuation upon his real estate as a whole and divide the amount of such valuation as he may think proper between his wife and children and, then he can give specific real estate or an interest in specific real estate to his wife for life with re- mainder to children or their issue by representation, or he can give a fee simple estate in certain property to his wife, or he can give to each of his children sole ownership of specific real estate clear of any interest of his wife. If there are children of de- ceased children he can also give them certain real estate. He can give some of his children separate properties and specific properties to some in common or jointly. In case he cannot give each child a property exactly equal to his or her share he can equalize the shares as is done in partition by the courts in pro- viding for payments or charges of owelty. For instance, a child being left a property of greater value than his or her share, he charges the property so devised with the payment to others who are left properties of a lesser value than their shares. If all or a number of the children's or their issues' shares are to be given in trust such shares can be given in specific real es- tate. Not only the real estate but the personal estate or a part thereof can be valued, blended and divided with the real estate as a whole. By such a course any charge or owelty can be avoided. However until the executors shall file their accounts and the balance shall be awarded in distribution the personal property cannot be well valued but it can be ordered that the difference due by a child in taking real estate shall be deducted from his share of personalty in favor of certain other children whatever such share in amount will be. In case a testator is sol- vent the shares of real estate can be equalized by specific be- quests of stock, bonds, mortgages, furniture, etc., which can be valued. Another way partition by law can be avoided is by devising real estate to trustees in trust to hold, divide or sell as the testator may provide. In making a division of specific prop- erties the testator should always bear in mind that devisees may lose their devises by a testator parting with property devised to them, and in such case such devises should be supplied by the substitution of other property. 222 LAW OF WILLS IN PENNSYLVANIA. The Necessity and Advantages of Providing for Investments. 535. It is the duty of an administrator or executor to con- vert investments of personal property into cash for distribution. Those entitled to the proceeds, however, can consent to take in- vestments left by the testator in lieu of cash but in such case the consent of all parties interested may have to be obtained. When shares of an estate are to>be retained by executors or trustees for certain trusts the law requires that the trust moneys shall be only invested in investments prescribed by the law, such as mortgages, city. State and United States loans, etc. The testator by his will may authorize the investment of trust moneys in securities not strictly legal, such as stocks, and bonds of private corporations, etc. There can be a discretion given in making investments or the testator may designate what in- vestments are to be held. The testator should declare that the executor or trustee shall not be liable for any loss by taking, holding, or the depreciation of illegal investments. There is a tendency at the present time to purchase stocks or bonds of business corporations or to merge an individual or partnership business into a corporation. The consequence is that a vast amount of the property of individuals is in the shape of corporate stocks or bonds. In case an owner of such stock or bonds should die intestate or make no provision by will for the retaining or disposal thereof it will become the duty of an ad- ministrator or executor to sell them and account for the pro- ceeds of sale. These may have no market value and it may be difficult to obtain purchasers and the consequence may be that the executor will have to sell them or retain them without legal authority. Unless securities are specifically bequeathed the executor's duty will be to sell them within a year from the death of the deceased unless legatees will accept them in lieu of cash. There is a possibility of a trustee being held liable for taking them and holding them until a loss. A testator by his will can bequeath such stock specifically or he can order an executor to apportion and divide them without conversion and that trustees for trusts shall hold them as if legal investments. However, it may be inexpedient to order the holding of such investments. They may fluctuate in value, depreciate or in the course of time PRACTICAL SUGGESTIONS. 223 become worthless. A trustee and his successors can be author- ized in their discretion to dispose of them and invest the pro- ceeds in legal investments at any time. The government of a corporation is generally managed by a board of directors elected by the stockholders, there being a stock vote. In order to preserve the control of a testator's holdings in the manage- ment of the business of a corporation, it may sometimes be best to keep the stock or a large part thereof intact by means of trusts. The stock owned by a testator may not be fully paid up and liable to calls. If there is a probability of such calls being made it may be well to consider and provide against such a con- tingency. Legatees may not be able to pay such calls and there possibly may be a forfeiture of their stock. If a trustee should hold such stock with other investments he could be authorized to sell investments to raise money to pay calls. On account of the safe character of legal investments, their market value is generally high, and the rate of interest low. In case of investments for life, or long periods, greater safety may be preferred to a higher rate of interest. There may be cases, when it will be necessary to get the highest rate of inter- est which can be obtained to prevent an encroachment upon principal which may be thereby consumed in the course of time. In case income only is given for a certain period, the principal eventually given to other parties can not be taken without au- thority in the will. In the course of time if there should be in- vestments in the stocks and bonds of corporations they may permanently fall or become worthless. The law will not tol- erate such risks and the same policy dictated by the law may often be well adopted by testators. The obtaining of mort- gages is a common practice in investing trust moneys. In such cases, however, first mortgages are generally taken. If there is a prior mortgage, ground rent charge on incumbrance there may be sheriff's sale therefor whereby the subsequent mort- gage will be divested. The trustee will have to keep a constant watch for sheriff's sales for such prior incumbrances, ground rents or charges, and in case of such sales a trustee may not have money to buy in at such sale to protect the trust. In case a trustee should buy in the mortgaged property under a sher- iff's sale upon the mortgage held by him he will hold the prem- 224 LAW OF WILLS IN PENNSYLVANIA. ises SO purchased as if an investment of personal property and which premises he can sell without an order of court. In case a testator's estate should consist of real property subject to mortgages it will be well to consider that the mortgages will have to be paid and that a trustee may not have money to pay them and that consequently the real estate may be sold and lost by a sheriff's sale. To avoid such results a trustee can be di- rected to sell such real estate if possible at the earliest period subject to such mortgages. CHAPTER XXL FORMS. SECTION 536. Commencement of wills. 537. Directions as to funeral ex- penses. 538. Directions as to masses. 539. Directions as to the place of burial. 540. Directions as to monuments. 541. Provision for the payment of debts. 542. Bequests with deductions of indebtedness of legatees. 543. A bequest with a release of legatee's indebtedness. 544. A debt of a devisee charged on real estate devised. 545. Declaration that a legacy- shall not be in satisfaction of a debt of testator. 546. Declaration that a legacy shall be in satisfaction of a debt of testator. 547. Declaration as to advance- ments to be deducted from shares. 548. Declaration that advance- ments are not to be de- ducted from shares. 549. Bequests of personal and household articles. 550. Form for division of furni- ture between children of age or by executor. 551. Form for division of furniture between adults and trustee of minors. SECTION 552. Bequest of furniture, &c., to man and wife for life and to survivor. 553. Bequest of furniture to wife for life with power to will. 554. Bequest of office of profes- sional man and its contents. 555- Directing office furniture to be sold. 556. Bequest of a steam yacht. 557. Bequest of an interest in a vessel. 558. Bequest of stock of railroad company. 559. Bequest of paid up stock of a private company. 560. Bequest of stock of a private company not paid up. 561. Bequest of bonds or bonds of corporations. 562. Bequest of money deposited in bank, trust company or saving fund. 563. Bequest of a claim for goods sold and delivered. 564. Bequest of a claim for money lent. 565. Bequest of a promissory note. 566. Bequest of money due under contract. 567. Bequest of a life insurance policy. 568. Devise and bequest of prop- erty devised and bequeathed to testator. 225 226 LAW OF WILLS IN PENNSYLVANIA. SECTIOIf 569. Provision in case a specific legacy shall be paid oflf or disposed of. 570. Bequest of a judgment. 571. Bequest of a bond and mort- gage. 572. Bequest of a lease. 573. Bequest of fire policies of in- surance. 574. Bequest of fire policies of in- surance to trustees. 575. Pecuniary legacy. 576. Pecuniary legacy not charged on residuary real estate. 577. Bequest of an annuity to De purchased. 578. Legacies to clerks. 579. Legacies to servants. 580. Bequests for charities. 581. Provision in case gifts for charitable or religious pur- poses shall fail by reason of death within a month after will. 582. A direction that legacies shall be paid in full in priority to others. 583. Direction that legacies are to be paid free of collateral inheritance tax. 584. Provision that if a legatee die before testator legacy shall go to executor or administrator. 585. Provision for a demonstra- tive legacy. 586. Devise of an estate in fee simple. 587. Devise of a life estate and remainder. 588. Devise to two persons jointly for life and fee to survivor. 589. Devise to man and wife as tenants by entireties. 590. Devise to tenants in common. 591. Devise of a contingent re- mainder. SECTION 592. Devise of a vested remainder. 593. Devise subject to the pay- ment of a mortgage. 594. Devise with right to have mortgage paid from estate. 595. Devise of land charged with payments. 596. Devise of ground rent in fee. 597. Devise of ground rent for life. 598. Brief will giving the whole estate. 599. Direction for conversion of estate into cash for distribu- tion. 600. Brief will giving the whole estate to a person for life and remainder over. 601. Giving the whole estate to a widow for life with remain- der to children and grand- children. 602. Giving an estate in trust for a wife with a provision in case she marries again. 603. Giving a wife household goods, money absolutely, in- come of money, dwelling house and stable. 604. A charge on real estate for the benefit of wife. 605. A charge on real estate to a trustee for wife. 606. A provision for the support of a wife by charges on land separately devised. 607. Giving real estate in trust for a wife for life with power to will. 608. Provision for the pasrment to wife for household expenses until settlement of estate. 609. Giving an estate in trust for a husband, protecting the same from creditors. 610. Giving the whole estate to children. FORMS. 227 6ii. Giving the whole estate to 628. children and grandchildren. 612. Giving the whole estate to 629. children and grandchildren, naming them. 613. Giving children vested inter- 630. ests to be possessed at death of wife. 631. 614. A bequest to minors payable at full age with accumula- 632. tions. 615. Appointing guardians and di- recting income paid to wife 633. for minors. 616. Instructions as to extraordi- 634. nary education of minors by guardian. 5,e 617. Provision for guardian to ex- pend principal for minor. 526, 618. Provision for a daughter in case of her marriage. 619. Provision for the separate 637. use of a married daughter with a spendthrift clause 638. added. 620. A spendthrift trust for a son and daughter. 638.' 621. Provision for a son for his entering into business. 622. Preserving unimproved land for a future sale. 639. 623. Avoiding a partition of real estate and conversion of per- sonal estate. 640. 624. Dividing and devising ac- cording to a survey. 625. Disposing of real and per- 641. sonal estate without con- 642. version. 643. 626. Provision to preserve the stock of a private corpora- 644. tion from a sale and separa- tion. 645. 627. Legacies of stocks of private corporations to control man- 646. agement. Providing for calls upon un- paid stock. Devise and bequest of busi- ness property in trust for wife. A bequest of a business to a wife absolutely. A bequest of a business and lease to a wife. A bequest of a business to sons upon their agreeing to support mother. A bequest of a business as an advancement. Devise to a wife of a farm for life. Devise of a farm in trust for a wife. Bequest of the interest of a testator in a partnership to son. Provision as to settling a partnership at dissolution. Bequest of an interest of a special partner under act of 1838. * Ordering executor to con- tinue the interest of a spec- ial partner under act of 1838. Bequest of a general partner in a partnership under act 1838. Bequest of an interest in a limited partnership under act 1874. Agreement for a double will. A double will. Will in case of an agreement to convey real estate. Power of sale where there is no conversion. Power of sale when there is a conversion. Authorizing executor to sell an interest in a partnership. 228 LAW OF WILLS IN PENNSYLVANIA. SECTION 647. Power given to trustees to sell. 648. Provision for succession of executors and trustees. 649. Authority to retain and hold illegal investments. 650. The exercise of a power of appointment. 651. A codicil where additional legacies are given. 652. A codicil revoking a legacy given by a prior codicil. 653. A codicil revoking a devise of real estate. 654. A codicil where several lega- cies are revoked or de- creased. Commencement of Wills. 536. I, A B, of the City of Philadelphia, Merchant, do make and publish this my last will and testament, hereby revoking and making void all former wills by me at any time heretofore made. This is the last will and testament of A B, of Township, County, State of Pennsylvania, Farmer. SECTION 655. A codicil for a child born after date of will. 656. Renunciation of executor. 657. Caveat against the proof of a will. 658. Caveat against granting let- ters of adminstration c. t. a. 659. Form for appeal to Orphans' Court, Philadelphia, Pa. 660. Petition for citation over ap- peal. 661. Decree for citation. 662. Request for an issue in the Court of Common Pleas. 663. Declaration on feigned issue to try validity of will. 664. Count for a codicil. 665. Pleas to declaration. I, A B, wife of C D, of the City of Philadelphia, do hereby make, publish, and declare this to be my last will and testa- ment. Be it remembered, that I, A B, of the City of Philadelphia, Merchant, being of sound mind, memory, and understanding [and intending to dispose of all my estate and property], do make, publish, and declare the following to be my last will and testament, hereby revoking all wills [codicils and testamentary dispositions] by me at any time heretofore made. Directions as to Funeral Expenses. 537. Item. I order and direct that my funeral expenses shall be paid by my executor as soon as conveniently may be after my decease. FORMS. 229 Item. I order and direct that my funeral shall be private; that carriages shall only be provided for my immediate rela- tives; that it shall be conducted in a manner corresponding with my estate and condition in life and that all extravagance shall be avoided. Directions as to Masses. 538. Item. I order and direct that my executors shall pay for such masses by reason of my decease as they may think proper; such payments not to exceed together the sum of Item. I give and bequeath unto the sum of to be expended for masses by reason of my decease. (If in any particular v^ay there can be a specification. ) Directions as to the Place of Burial. 539. Item. I direct that my body be interred in the burying ground of the Church in the City of Philadelphia, accord- ing to the rites and ceremonies of the said Church. Item. I direct that my body be interred in the Cemetery, in the City of Philadelphia. Item. I direct that my body be buried in the burial ground of the Society of Friends at , beside the body of my deceased vi^ife, and that the funeral be conducted according to the usual custom of said Society. Item. I direct and provide that my body be interred in my burial lot in Monument Cemetery in the City of Philadelphia, No. , and that the bodies of my wife and children may also be buried there, and I give and bequeath unto the said Monument Cemetery Company the sum of five hundred dol- lars, in trust to pay the net income thereof in keeping said lot in good order, repair and condition. Item. I order, authorize and direct that my executor shall purchase a burial lot in Laurel Hill Cemetery, in Philadelphia, 230 LAW OF WILLS IN PENNSYLVANIA. of sufficient size for the burial of myself, my wife, and chil- dren, and to have the deed' for such lot made in such way as he may think proper for the purpose, and that my executor shall have such lot enclosed and shall have suitable tomb- stones erected as he may think proper, the expenses thereof to be paid by my executor from my estate. Directions as to Monuments. 540. Item. I order and direct that my executors shall pur- chase and have erected at my grave such tombstones as they may think proper. Item. I order and direct that my executors shall have a monument erected at my grave according to a certain sketch or plan which will be found with my papers. Item. I order and direct that my executors shall have such 1 monument erected at my grave as they may think proper, which shall not cost over dollars. Provisions for the Payment of Debts. 541. Item. I order and direct that all my just debts and funeral expenses shall be paid by my executor hereinafter named as soon as conveniently may be after my decease. Note. — It is not necessary to have authority given to ex- ecutors to pay debts, as they are bound by law to pay them. After the word debts the words legally collectable can be in- serted if it is thought that there is any danger of outlawed debts being included. Bequests With Deductions of Indebtedness of Legatees. 542. Item. I will, order and provide that in case any legatee of my will, or of any codicil thereto, shall be indebted to me at the time of my decease such indebtedness, with interest, (or without interest) shall be deducted and disallowed from the legacy or share of my personal estate bequeathed to such legatee. A Bequest with Release of Legatee's Indebtedness. 543. Item. I give and bequeath unto my brother, A B, the FORMS. 231 sum of two thousand dollars without any deduction or abate- ment for his indebtedness now due or owing me, or which shall be due or owing to me at the time of my decease, and I hereby release and discharge him from any such indebtedness, and I order that my executor shall deliver to him upon the settlement of my estate, any obligations, or evidences of indebtedness, of his to me, so that he may cancel and destroy the same. A Debt of a Devisee Charged on Real Estate Devised. 544. Item. I give and devise unto my son, A B, and his heirs in fee simple my dwelling house and lot of ground (describe premises) charged with the payment by him to my executor or estate within one year from the date of my decease of the amount of his indebtedness to my estate at that time with inter- est (or without interest) and upon his paying the said in- debtedness to my said executor with interest (or without inter- est) my said executor shall release the said real esate from the said charge and my said son from such indebtedness and in- terest. Declaration That a Legacy Shall Not be in Satisfaction of a Debt of Testator. 545. I direct that no legacy or gift contained in my will shall be taken to be in satisfaction of any debt owing by me to the legatee. Declaration That a Legacy Shall be in Satisfaction of a Debt of Tes- tator. 546. The said legacy to A B is given upon the condition and proyision that it is to be in full payment and satisfaction of my indebtedness to him and that he will release my execu- tor and estate from all liability to pay the same before receiving said legacy. Declaration as to Advancements to be Deducted From Shares. 547. Item. I will and declare that all such moneys as I have or shall have advanced or lent to any of my said children, shall be deducted from his, her, or their respective shares of my es- tate given by my will as advancements. 232 LAW OF WILLS IN PENNSYLVANIA. Item. Having advanced and lent to my children certain amounts of money which I have entered in a book of mine, I order and direct that such advances and loans with unpaid in- terest thereon from the time of the advance (or say without any interest) shall be respectively deducted from the respective shares of my children as advancements and that distribution shall be made accordingly. Declaration That Advancements Will Not be Deducted From Shares. 548. Item. I order and declare that such advances and loans as I have made or may hereafter make, to any of my children shall be in addition to and not in satisfaction of any legacy, or legacies, portion, or portions, or other benefit given to him, her or them, by my will and that all claims for such loans and advances shall be released or given to the children having re- ceived the same. Bequests of Personal and Household Articles. 549. Item. I give and bequeath to my son. A, my gold watch and chain. Item. I give and bequeath unto B my diamond ring and all my other jewelry. Item. I give and bequeath unto C all my wearing apparel. Item. I give and bequeath unto my son, D, my paintings of my father and mother for the term of his life and after his decease to my daughter, E, absolutely. Item. I give and bequeath to G all my articles for personal, domestic or household use or for ornament, comfort, conveni- ence or pleasure including all my wearing apparel, jew- elry and household goods, furniture, books, paintings, pic- tures, works of art and other efifects which at the time of my death shall be in, about or belonging to my dwelling house. Form for Division of rurniture Between Children of Age or by Executor. 550. Item. I bequeath to my children all my household goods and furniture to be equally divided between them as they may all agree, but if they do not so agree with respect to the division, or upon the request of any child my executor shall FORMS. 233 distribute the same equally amongst my said children accord- ing to his discretion by means of a special appraisement (by experts or competent appraisers appointed by him for the pur- pose) without any partiality in respect to the age or the cir- cumstances of my children or any recommendation or solicita- tions of any of them, it being my desire that no differences or hard feelings shall ever arise in making such division. I'or the Division of Furniture, &c., Between Adults and Trustee of minors. 551. Item. I give and bequeath to all my children my watch, wearing apparel, personal ornaments, household goods, furni- ture, and my other goods, chattels and effects of a like nature in my dwelling house or where the same may be at the time of my decease unto my six children to be equally divided and ap- portioned between them. For the purpose of making such di- vision I appoint my said executor as a trustee for the shares of my children who may be minors at the time of my decease and to act for them. And I order and provide that such division shall be made if possible by an agreement between my chil- dren of full age, and said trustee for my minor children, but in case they cannot all agree together the division shall be made by lot or otherwise by arbitrators chosen by my adult children and by such trustee and I desire and recommend that the di- vision shall be made fairly and impartially, and in case of any allotments to minor children that said trustee shall hold the same for them during their minority or sell or dispose of the same for their benefit as he may think proper. Bequest of Furniture, &c., to Man and Wife for Life and to Survivor. 552. Item. I give and bequeath all my household goods and furniture in my dwelling house unto A B and C D, his wife, jointly for the term of their natural lives, and upon the death of one of them, I give and bequeath the whole unto the sur- vivor of them absolutely. Bequest of Furniture to Wife for life with Power to Will. 553. Item. I give and bequeath all my household goods and furniture to my wife for the term of her life, without any se- 234 LAW OF WILLS IN PENNSYLVANIA. curity being required of her for the same, and upon her de- cease the same shall go and be disposed of as my said wife shall by her last will and testament appoint. Bequest of Office of Professional Maa and Its Contents. 554. Item. I give and bequeath the lease and good will of my office in which I carry on my professional business, and all my books, fixtures, furniture, the fire proof, and other articles therein, used by me in said business not including any evidences of property or other things not directly relating to said busi- ness unto my son, John, absolutely. Directing Office Furniture, &c., to be Sold. 555. Item. I direct that all my office furniture and pro- fessional and other books therein, shall be sold by my executor separately or together at public or private sale as my executors may think proper and the net proceeds of sale shall form a part of my residuary estate for distribution and that my lease of said office shall be sold and assigned or surrendered as my ex- ecutors shall deem proper. Bequest of a Steam Tacht. 556. Item. I give and bequeath my steam yacht and all its fixtures, machinery, furniture, appliances and appurtenances, unto my sons, John and James, absolutely, share and share alike ; and I request my executor to have the same and the title thereof transferred to them accordingly. Bequest of an Interest in a Vessel. 557. Item. I give and bequeath unto A B, absolutely, all my one-fourth part share or interest in the vessel called or named "Susquehanna," registered at and all my right and interest in and to all and singular the fixtures, furniture, ap- purtenances, and other articles, whatsoever, in or to the said vessel belonging, or appertaining, and I order my executor to have the same transferred to the said A B with the title thereof, accordingly. Bequest of Stock of Railroad Company. 558. Item. I give and bequeath unto A B my one hundred FORMS. 235 shares of the stock of the Pennsylvania Railroad Company standing in my name, the certificates thereof being numbered as follows: (and all my rights and privileges thereto and thereunder.) Bequest of Paid TTp Stock of a Private Company. 559. Item. I give and bequeath unto A B my fifty shares of stock of the Philadelphia Stove Company standing in my name the certificates thereof being numbered being a por- tion of the shares of paid-up stock of said Company ov^rned by me with all the profits, income, rights and privileges thereof or therefrom. Bequest of Stock of a Private Company Not Paid Tip. 560. Item. I give and bequeath unto A B my fifty shares of stock of the "Philadelphia Stove Company" standing in my name, the certificates of stock being numbered No. with all the profits, income, rights and privileges thereof, and therefrom, upon the condition and with the provision, how- ever, precedent, that said A B shall by a sealed writing cove- nant and agree voth my executor to assume and pay all calls or money which may be due by my estate to said Company by reason of the ownership of said stock and to indemnify my es- tate and those entitled thereto from any loss by reason of my estate being made to pay such calls or money required. Bequest of Bonds or Loans of Corporations. 561. Item. I give and bequeath unto A B my six per cent, bonds of the City of Pittsburgh for $10,000 each standing in my name and numbered [or my five per cent, bonds of Clover Hill Railroad Company for $10,000 each standing in my name and numbered , or my seven per cent, bonds of Winchester & Potomac Railroad Company for $10,000 each standing in my name and numbered , or my six per cent, loans of the City of Philadelphia for $10,000 each standing in my name and numbered J, and all my interest, income, rights and privileges in, to or from the said bonds (.there can be a provision in case the bonds shall be sold or paid off.) The 236 LAW OF WILLS IN PENNSYLVANIA. word "my" had better be used and numbers given and the bonds certainly separated and identified from others. Bequest of Money Deposited in Bank, Trust Company or Saving Fund. 562. Item. I give and bequeath all money deposited by me, or which shall be deposited by me at the time of my decease in my name in The Philadelphia Bank (or Philadelphia Saving Fund or Philadelphia Trust Co.) and all my rights, interest, and claim against the said bank for moneys deposited or which may be deposited in said bank (or Saving Fund or Trust Com- pany). Bequest of a Claim for Goods Sold and Delivered. 563. I give and bequeath unto A B all that debt or sum of five hundred dollars due and owing to me from C D, for goods sold and delivered by me to the said C D, for which I have a book account, and all moneys and interest due and which shall be due thereon, and I order that my executor shall transfer the same untO' the said A B, (or it may be sufficient to say I be- queath unto A B all my claims against C D for goods sold and delivered). Bequest of a Claim for Money Lent. 564. I give and bequeath unto A B all that debt or sum of money now due and owing to me from C D for money lent bv me to him, and all interest due and which shall be due thereon, and I order that my executor shall transfer the same unto the said A B (or it may be sufficient to say I bequeath unto A B all ray claims against C D for money lent to him. ) Bequest of a Promissory Note. 565. Item. I give and bequeath unto A B my promissory note dated the day of A. D., , made by C D for the payment to me (or to E F) of one thousand dollars (or "and endorsed to me") and all money, principal and interest due or which shall grow due thereon, and I order my executor to deliver and transfer said note to the said A B. FORMS. 237 Bequest of Money Sue TTnder Contract. 566. Item. I give and bequeath unto A B all my right, title, and interest of, in, to and from a contract in writing made be- tween me and C D, dated the day of A. D., for my services as his superintendent, and all money due and which shall be due or coming to me thereunder at the time of my decease. [Care should be used to see that company's rules as to assignments, etc., have been complied with.] Bequest of a Life Insurance Policy. 567. Item. I give and bequeath unto A B my Policy of Life Insurance, No. , of the Jefferson Life Insurance Com- pany, of the City of Pittsburgh, insuring my life for ten thou- sand dollars, and all my right, title and interest thereto and thereunder, and all moneys which shall be due and payable thereon after my decease. Devise and Bequest of Property Devised and Bequeathed to Testator 568. Item. I give, devise and bequeath unto A B and her heirs in fee simple all my property and estate, real, personal and mixed, devised and bequeathed to me by the last will and testament (and codicils) of C D, late of the City of Philadel- phia, deceased, and all moneys principal and interest belonging or coming to me under said will and testament and codicils. Provision in Case a Specific Legacy Shall be Paid OfE or Disposed Of. 569. And I will, order and provide that in case any of my said shares of stock (or bonds or loans or mortgages, etc.) or any of them, bequeathed by me shall be paid off, sold, assigned or disposed of so that I shall cease tO' own the same at the time of my decease, then, in lieu of any such stock so paid off, sold, assigned or disposed of, I give and bequeath to the legatees thereof respectively amounts in money equivalent to such stock at the time I shall cease to be the owner thereof, estimated, however, by the executor of my will or his successors according to his or their best information, judgment and discretion, and which valuation is to be conclusive. Bequest of a Judgment. 570. I give and bequeath unto A B a certain judgment by me 238 LAW OF WILLS IN PENNSYLVANIA. recovered in the court of common pleas No. i, of the County of Philadelphia, of September Term, 1901, No. 100, against John Jones, for the sum of five hundred dollars and costs, and all moneys, principal and interest due and which shall fall due thereon, with full power to recover the same to his own use, and my executors are requested to have the said judgment marked to the use of the said A B on the court record, of said judgment. Bequest of a Bond and Mortgage. 571. Item. I give and bequeath unto A B my bond for ten thousand dollars and the mortgage securing the same on prem- ises. No. , Washington street, Philadelphia, made by C D to me [or to E F and assigned to me] , dated the day of A. D., 1901, and all money, principal and interest due and which shall fall due thereon (a shorter form may possibly answer, as "I give and bequeath unto A B my bond and mort- gage of C D for the payment of ten thousand dollars and inter- est, and all the money due or which may become due thereby") . Bequest of a Lease. 572. I give and bequeath unto A B my lease of the prem- ises, No. 500 Jones street, in the City of Philadelphia, dated the 1st day of January, 1902, made to me by C D [or made by C D to E F and assigned to me by the said E F] , and all my estate, right, title, term of years yet to come, claim, and demand whatsoever, of, in, to, or out of the same, [if good will and store fixtures are to be included then they can be added.] Bequest of Kire Policies of Insurance. 573. Item. I give and bequeath unto the respective devisees of my real estate any policies of fire insurance upon properties devised to them, and I order and direct my executors to assign and transfer any such policies to such devisees. [See that com- pany's rules as to assignments are observed.] Bequest of Fire Policies of Insurance to Trustees. 574. Item. I give and bequeath unto my trustees herein named any policies of fire insurance upon property held by FORMS. 239 them in trust to be held upon the same trusts, as they hold the property insured respectively. Pecuniary Legacy. 575. Item. I give and bequeath to A B ten thousand dollars, or, I give and bequeath to A B ten thousand dollars in trust, etc., stating trust. Pecuniary Legacy Not Charged on Residuary Seal Estate. 576. Item. I give and bequeath to A B ten thousand dollars but will, order and provide that the same shall not be charged upon real estate devised as part of my residuary estate, or Item. I will direct and provide that none of the pecuniary legacies bequeathed by my will or codicils shall be charged upon the real estate devised by the residuary clause of my will. Bequest of an Annuity to be Purchased. 577. I bequeath to my sister, A B, an annuity for the pay- ment to her of one thousand dollars during her life, and T direct my executors or their successors as trustees to purchase such annuity in the name of the said A B' from an annuity com- pany of the City of Philadelphia, in their judgment of good standing and reputation. Provided always, and I hereby di- rect that the said A B shall not be entitled to receive the value of the said annuity in lieu thereof. Legacies to Clerks. 578. Item. I bequeath to such of my clerks as shall be in my employment at the time of my death, the sum of one hundred dollars each. Legacies to Servants. 579. Item. I bequeath to each of my domestic servants who shall be in my service at the time of my decease, having been in my service for not less than six months prior to my decease the sum of fifty dollars, or Item. I give and bequeath unto A B (or some trust com- pany) five thousand dollars in trust to pay to B C,,my faithful servant the net income thereon during her lifetime, free from 240 LAW OF WILLS IN PENNSYLVANIA. any of her debts, contracts or liabilities, and not subject to any assignments, pledges, or transfers, or dispositions in any way, and upon her decease to pay the corpus or principal of the said trust to my children, absolutely. Bequests for Charities. 580. Item. I give and bequeath unto the Pennsylvania Hos- pital, of the City of Philadelphia the sum of ten thousand dol- lars. Item. I give and bequeath unto Church in the City of Philadelphia ten thousand dollars for the religious purposes of said church. Item. I give and bequeath unto Church in the City of Philadelphia for the charitable purposes of said church. Provision in Case Gifts for Charitable or Beligious Purposes Shall Pail by Reason of Death Within a Month After Will. 581. Item. In case any bequests or devises of property in my will and codicils for charitable or religious purposes shall fail by law by reason of my death before the expiration of one month after the making of my will and codicils then I desire and recommend that those who shall receive or be entitled to any of my estate or property by reason of such failure, shall ac- cording to their discretion give such property or parts thereof as I have intended to give the same by my will and codicils. / will and provide, hoivever, that my said desire and recommen- dations are not intended to be in any way legally binding and that my will shall be taken as if I had not made this item. A Direction That Certain Legacies Shall Be Paid in Full in Priority to Others. 582. I direct that the legacies given to or for my wife, and children shall be paid in priority to any other legacy given by my will and that all private legacies shall be paid in priority and preference to any legacies given for religious or charitable purposes. Direction That Legacies Are to be Paid Free of Collateral Inheritance Tax. 583. I will, order and direct that all legacies above given to FORMS. 241 any collateral heir, relative or other person or to any company, association, or associate body, shall be paid without any de- duction for any collateral inheritance taxes and that such taxes shall be paid from my residuary estate hereinafter mentioned. Provision That if a Legatee Die Before Testator Legacy Shall go to Executor or Administrator. 584. Item. If any legatee shall die before me, I give and bequeath the legacy intended for him or her to his or her execu- tors or administrators, to be applied as if the same had formed part of the personal estate of such legatee at his or her de- cease. Provision for a Demonstrative Legacy. 585. Item. I give and bequeath unto A B the sum of one hundred dollars as a demonstrative legacy to be paid from the money deposited with or owing to me by the Western Saving Fund Society of Philadelphia. Devise of an Estate in Pee Simple. 586. Item. I give and devise (here briefly describe premises) to my son, A B, his heirs and assigns in fee simple. Devise of a Life Estate and Bemainder. 587. Item. I give and devise my house and lot (here briefly describe the premises) unto A B for the term of his natural life, and after his death unto C D, his heirs and assigns in fee simple. Devise to Two Persons Jointly for Life and Fee to Survivor. 588. Item. I give and devise unto my son, A B', and to my daughter, C D, as joint tenants for life all my real estate (or the house and lot Number 100 Washington street in the City of Philadelphia) and upon the death of one of them, the same shall go to and vest in the survivor of them, his or her heirs in fee simple notwithstanding the Act of Assembly of the Common- wealth of Pennsylvania against the creation of a joint tenancy. Devise to Man and Wife as Tenants by Entireties. 589. I give and devise to A B' and C D, his wife, (briefly 16 242 LAW OF WILLS IN PENNSYLVANIA. describe premises) for the term of their joint lives and to the survivor of them his or her heirs in fee simple as tenants by entireties. Devise to Tenants in Common. 590. Item. I give and devise my house and lot of ground, No. street in the City of Philadelphia (or all my real estate) unto A B, C D and E F, and to their heirs equally as tenants in common share and share alike. Devise of a Contingent Bemainder. 591. Item. I give and devise my house and lot of ground situate (describe and locate) unto A B for the term of his nat- ural life and upon his decease, to C D in fee simple if he shall be living at the time of the death of the said A B, but if he should not be then living, then I give and devise the same unto E F in fee simple as a contingent remainder. Devise of a Vested Jtemainder. 592. Item. I give and devise my house and lot of ground (describe and locate) unto A B for the term of his natural life, and after his death to C D in fee as a vested remainder. Devise Subject to the Payment of a Mortgage. 593. Item. I give and devise unto A B, his heirs and assigns my dwelling house and lot of ground situate (briefly de- scribe the premises) subject to the payment of the mortgage debt of five thousand dollars and interest thereon secured upon said premises by a mortgage dated the day of A. D., , made by me to C D (or made by E F to C D and agreed and assumed to be paid by me in the conveyance of said premises to me) and this devise to the said A B is upon the condition precedent that he shall make, execute and deliver to the executor or his successor of my will upon my decease his agreement in writing to assume and to pay the said debt and in- terest [the rights of the owner of the mortgage not being in- creased] and indemnify my executor and his successors and my estate from all loss by being made to pay the said debt and in- terest. (Or in case a property has been conveyed to the testa- tor merely subject to a mortgage made by the testator's grantor FORMS. 243 then the devisee can agree to indemnify the testator's estate from any liability upon the testator's indemnity. ) Devise With Bight to Have Mortgage Paid From Estate. 594. Item. I give and devise unto A B', his heirs and assigns the dwelling house and lot of ground situated (here briefly describe the property) clear of the mortgage now on the same jnade by me to C D for the payment of two thousand dollars and interest, and I order my executors to pay ofif the debt and interest of said mortgage as a debt of my estate and to have the said mortgage satisfied of record and so that the said A B shall hold the said premises free from all liability for the payment of the said mortgage. Devise of Land Charged With Payments. 595. Item. I give and devise to A B, his heirs and assigns in fee simple all that (briefly describe premises) the same to be charged with payment by him of five hundred dollars per an- num payable monthly to C D for the term of her natural life, to commence upon the date of my decease and to be appor- tioned and paid to the date of the death of the said C D, and the payment of which charge is to be further secured by a bond of the said A B, secured by a mortgage of said premises made upon my decease as a condition precedent to the said devise taking effect. Devise of Ground Bent in Pee. 596. Item. I give and devise unto A B and his heirs a yearly ground rent of sixty dollars issuing and payable by John Jones, his heirs and assigns out of and for the premises Number Five Hundred Jones Street, in the City of Philadelphia. Devise of Ground Bent for Life. 597. Item. I give and devise unto A B for the term of his natural life a yearly ground rent, etc. (as above) and upon the decease of the said A B I give and devise the said ground rent unto C D, his heirs and assigns in fee simple. Brief Will Giving the Whole Estate. 598. Be it remembered that I, A B', of the City of Philadel- 244 LAW OF WILLS IN PENNSYLVANIA. phia, Manufacturer, being of sound mind, memory, and un- derstanding, do hereby make and publish this my last will and testament, hereby revoking and making void all former wills and testaments by me at any time heretofore made. First. I give, devise, and bequeath unto C D, his heirs and assigns forever in fee simple and absolutely, all my property and estate, real, personal and mixed, of every kind and na- ture, and wheresoever the same shall be at the time of my de- cease. Second. I nominate, constitute and appoint the said C D as executor of this my last will and testament. In witness whereof I, A B, the testator, have to this, my last will and testament, set my hand and seal, this day of one thousand nine hundred and three (1903.) SEAL. Signed, sealed, published, and de- clared by the above-named A B, as and for his last will and testament, in the presence of us, who have here- unto subscribed our names at his re- quest as witnesses thereto in the pres- ence of the said testator, and of each other. Direction for Conversion of Estate Into Cash for Distribution. 599. Item. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever, I order and direct to be converted into money as soon as the same can conveniently be done after my decease, and for that purpose, I do hereby au- thorize, empower and direct my said executors, hereinafter named and the survivor of them to sell, dispose of and convey in fee simple all my said real estate, either by public or private sale or sales without any liability of the purchasers for the application, non-application or misapplication of the purchase moneys, and when the whole of my said residuary estate shall be converted into money I will and direct that same shall be divided in parts and shares and disposed of as fol- lows, to-wit: (here insert the disposition of shares absolutely or in trust. ) FORMS. 24s Brief Will Giving tlie Whole Estate to a Person for Life and Ke- mainder Over. 600. I hereby make my will and testament and give, devise and bequeath all my estate and property, real, personal and mixed, unto A for the term of his life, and after his decease, to my brothers and sisters and to their heirs in fee simple and absolutely, without any security being required of the said A for personal property taken by him, and I appoint him the ex- ecutor of this will. Dated the day of A. D. nine- teen hundred and two. SEAL. Signed, sealed, etc., as in Sect. 598. Giving the Whole Estate to a Widow for Life With Bemainder to Children and Grandchildren. 601. Item. I give, devise and bequeath all my property and estate, real, personal and mixed, unto my wife. A, for the term of her natural life, and after her decease to my children who may be living at the time of her decease, and the children then living of any children of mine deceased at the time of the death of my wife in fee simple and absolutely each child of mine to have one equal share, and the children of any deceased child of mine to have one share by representation divided equally between them, and I will and provide that my said wife shall not be required to give any security as legatee for life. Giving an Estate in Trust for a Wife With a Provision in Case She Harries Again. 602. Item. I give, devise and bequeath all my estate and property, real, personal and mixed, unto A B, in trust to rent and manage the same and to collect the rents and income thereof, and to pay the net amount thereof, unto my wife, C D, as long as she shall live unmarried, and in cage she shall marry again then only to pay her one-third part (or one-half part) of said net income for the term of her natural life, and to pay the balance of said net rents and income in case of my wife marrying again to my children in equal shares during the lifetime of my said wife, (the shares of my said wife and chil- dren are not to be liable for their debts, contracts, liabilities, 246 LAW OF WILLS IN PENNSYLVANIA. transfers, or pledges) and upon the decease of my said wife, then I give, devise and bequeath the corpus or principal of said trust property and estate, to my said children in fee and ab- solutely in equal shares. (Grandchildren can be included by representation, or any other disposition can be made. ) Giving a Wife Household Goods, Money Absolutely, Income of Money, Dwelling House and Stable. 603. Item. I give and bequeath unto my beloved wife my watch, jewelry, clothing, personal ornaments and effects, and all my household goods and furniture, silverware, plate, linen, pictures, prints, paintings, works of art or ornament, china, books, fuel, household stores and provisions, and all other mov- able articles and effects for domestic or household use or orna- ment now in or which shall be in, about or belonging to my present city and country residences, or any dwelling houses where I may reside at the time of my decease, and I also give and bequeath unto my said wife, my carriages, vehicles, sleighs, horses, harness, hay, straw, feed, and all movable articles now in or belonging, or which may be in or belonging to my stables at the time of my decease. Item. I give and bequeath unto my said wife fifty thousand dollars, and I order and request that my executors shall pay her from the time of my decease monthly payments of dollars on account of said legacy until she shall receive the same. Item. I give and bequeath unto (name individual or Trust Company trustee) three hundred thousand dollars, in trust to invest the same and to keep the same invested in investments and securities provided by law and collect the income thereof and pay the net amount of such income when received unto my said wife for the term of her natural life free from all lia- bility for her debts, creditors or liabilities or to assignments, pledges or anticipations, and after her decease the corpus or principal of said trust shall go (as the will may provide.) Item. I give and devise unto my said wife for the term of her natural life my dwelling house. Number Chestnut street, in the City of Philadelphia, and my dwelling house and land on which the same is erected and stable and coach house FORMS. 247 thereon situate on the York Road, near Road in Mont- gomery County, Pennsylvania. Note. — The above three items are intended to be incorpor- ated in a will together. The movable or personal property could be given to the wife for life only, by a trust or other- wise, with a direction that no inventory or security shall be taken to protect those entitled to remainders. In case of a trust the trustee could be directed to insure the furniture, etc., against loss by fire and the money received by insurance could be di- rected to be expended in buying other furniture, etc., for the trust or otherwise. The buildings could be ordered to be kept insured and the insurance money expended in rebuilding or otherwise applied. The real estate after the decease of the wife can be disposed of according to the wife's will or to children, tc. A Charge on Beal Estate for the Benefit of Wife. 604. Item. I give and devise unto my son, A B, and his heirs in fee simple my farm situate , where I now re- side, but I charge the same with the pa)Tnent by my said son, his heirs, devisees, executors, administrators and assigns to my wife, C D, of successive monthly payments of one hundred dollars each, commencing on the date of my decease and ending on the date of her decease, apportioned to that time and for the better securing the payment of the said charge I will and pro- vide that my said son shall make, execute and deliver to my wife upon my decease a bond and warrant securing the pay- ment of the said charge upon said premises. A Charge on Beal Estate to a Trustee for Wife. 605. Item. I give, devise, etc., as above, and then write, but I charge the said premises with the payment by my said son to (Trust Company) as trustee for the use and benefit of my wife, C D, of successive monthly payments of one hundred dol- lars each, commencing from my decease and ending upon her decease, and the said trustee shall pay said amounts as re- ceived to my said wife, which shall not be liable for her debts, contracts, creditors, liabilities, assignments, pledges, anticipa- 248 LAW OF WILLS IN PENNSYLVANIA. tions, and said trustee shall have power to release the said charge upon the said payments being made. A Provision for the Support of a Wife by Charges on Land Separate- ly Devised. 606. Item. I give and devise unto my son, A, and to his heirs in fee simple my farm (describe farm.) Item. I give and devise unto my son, B, and to his heirs in fee simple my farm (describe farm.) Itemr. I give and devise unto my son, C, and to his heirs in fee simple (describe farm.) Item. I direct that each of my three sons, A, B and C, above named, shall each pay annually an equal portion to their mother, D, of six per cent, interest on ten thousand dollars, payable quarterly from the date of my decease, each paying one-third part, and I will, order and direct that the three farms are devised to them on the condition that each of them re- spectively shall pay their respective portions for the support of their mother, as aforesaid, and the payment of their re- spective portions are charged on the respective farms devised to them. (If the farms are of unequal value the charges can be apportioned accordingly. ) Giving Beal Estate in Trust for a Wife for Life With Power to WUl. 607. Item. I give and devise my lot of ground and mansion house. No. 100 Washington street, in the City of Philadelphia, unto A B, his heirs and assigns in trust to pay the net rents and income thereof unto my wife for the term of her life free from liability for her debts, contracts and liabilities and from and after her decease then the said premises shall go to or be held for such person or persons and such uses, trusts and purposes and with such powers as my said wife, by her last will and testament or any instrument of writing in the nature thereof may direct, limit and appoint, and for want of such di- rection, limitation or appointment then (here direct as to how the estate shall then go.) Provision for the Payment to Wife for Household Expenses TTntil Settlement of Estate. 608. Item. I will, order and provide that from the date of FORMS. 249 death, until the settlement of my executor's account, and the final decree for the distribution of my personal estate after the expiration of one year after my decease, my present home or dwelling house, with all the goods and furniture therein, shall be preserved, continued and provided for, if my wife shall be living, for her benefit and the benefit of such children of mine who shall be living with me at my dwelling house or having their home there at the time of my decease and dependent upon me for support and maintenance and my executors or their suc- cessors shall in such case pay the rent of said dwelling house during such period and also pay to my said wife for the usual, current household expenses of the home and the necessary per- sonal expenses of my wife and said children .for clothing, medi- cal services, etc., money according to the judgment and discre- tion of my executors or the survivor or successors of them, but my said executors shall not be liable to see to the proper distri- bution and application of such moneys by my wife, and I direct that all such payments aforesaid shall be allowed and paid upon the settlement and distribution of my personal estate in prefer- ence to any pecuniary legacies. Note. — A certain amount per week or per month sufficient to pay all the expenses above mentioned, or indicated, can be or- dered to be paid, the executors paying rent separately. If the lease will terminate during the year power can be given to the executors to rent some other premises by the month. As no distribution can be insisted upon until after a year after the death of the testator, a provision like the above may be the means of benefiting a testator's family during that period and of relieving executors from assuming risks in a premature, un- authorized distribution. Giving an Estate in Trust for a Husband, Protecting the Same From Creditors. 609. "I give, devise and bequeath all my property and es- tate, real, personal and mixed whatsoever and wheresoever situated, unto (insert name of trustee) in trust nevertheless to collect and receive the rents, issues, profits, dividends, interest, and income thereof, and to pay the net amount thereof unto my beloved husband during the term of his natural life, for his sole 250 LAW OF WILLS IN PENNSYLVANIA use and benefit, but so that the principal or corpus of said trust estate, or the rents, interest, and income thereof, shall not be in any way subject or liable to or for his debts, liabilities, con- tracts, engagements, and upon the decease of my said husband the principal or corpus of said trust estate shall go to such per- son, or persons, and in such way, manner, and proportions, in trust, or otherwise and subject to such conditions and pro- visions, and with such powers as my said husband by his last will in writing shall appoint or direct, and in default of such appointment or direction then the said principal or corpus of my estate shall go to such person or persons and in such shares and proportions as would be entitled to the same under the intestate laws of the State of Pennsylvania, if my said husband had owned the same in fee and absolutely and had died intes- tate in said State and resided therein. Provided, however, anything heretofore contained notwithstanding that the said trustee or any succeeding trustee may in his discretion at any time let my husband have a part or parts of the said corpus or principal of said trust estate in fee simple or abso- lutely, free, clear and discharged of any trusts under this will and make necessary or proper conveyances and transfers ac- cordingly. Giving the Whole Estate to Children. 610. Item. I give, devise and bequeath all my property and estate, real, personal and mixed, unto all my children in fee simple and absolutely in equal shares divided equally between them. Giving the Whole Estate to Children and Grandchildren. 611. Item. I give, devise and bequeath all my property and estate, real, personal and mixed, unto all my children who shall be living at the time of my decease and the child or children of any children of mine who may be then deceased, in fee simple and absolutely to be equally divided in fee simple and absolutely but the child or children of any child of mine who may be then deceased, only to take and have such part or share as his, her or their deceased parent would have taken if he or she had been living at the time of my decease. FORMS. 251 Giving the Whole Estate to Children and Grandchildren Naming Them. 612. Item. I give, devise and bequeath unto each of my five children, A, B, C, D and E, respectively in fee simple and abso- lutely one-sixth share and part of all my estate and property, real, personal and mixed, and unto G, H and I, the children of my deceased child, F, in fee simple and absolutely the remaining one-sixth share and part of my said estate and property to be divided equally between the said G, H and I. Giving Children Vested Interests to be Possessed at Death of Wife. 613. Upon the decease of my said wife I give, devise and bequeath all my estate and property, real, personal and mixed, unto my six children, A, B, C, D, E and F, and to their heirs divided equally between them and which interests hereby given to them are to be vested. A Bequest to Minors Payable at Full Age With Accumulations. 614. Item. I give and bequeath to each of my children the sum of one thousand dollars respectively, to be paid to them respectively with the accumulated interest and income thereon upon their arriving respectively at the age of twenty-one years. Appointing Guardians and Directing Income Paid to Wife for Minors. 615. Item. I appoint the guardian of the estate of my said minor children during their respective minorities, and my beloved wife shall act as guardian of their persons, and I or- der and provide that the said guardian of my estate shall pay to my said wife the net amount and income of minor's shares to be expended by her for their support, maintenance and educa- tion of said minors during their respective minorities in such way and manner as she in her discretion shall think necessary or proper, without any accountability or responsibility of the guardian of the minors' estates, and my said wife for the appli- cation and expenditure of money paid to my said wife excepting that the guardian of the estates are to show payments made to her for such purposes. Instructions as to Kxtraordinary Education of Minors by Guardian. 616. Item. I appoint A B as testamentary guardian of the 252 LAW OF WILLS OF PENNSYLVANIA. persons and estates of my minor children and I order and direct that if any of my sons shall desire to have a collegiate education, that such desire shall be satisfied, and if any of them shall further desire to be educated for some professional business, or business requiring special education, that they shall be so educated if my guardian or his successor shall think that they are mentally and physically qualified or adapted for the profession or business chosen, and in any such case corpus or principal of the share of son to be educated shall be taken and used if necessary for such education and for his support and maintenance while being so educated. Provision for Guardian to Expend Principal for Uanor. 617. Item. In case said guardian or his successor (or trus- tee) shall think it necessary or proper to take and expend any portion of the corpus or principal of said minor's share for his support and maintenance (and education) he may do so. Provision for a Daughter in Case of Her Marriage. 618. In case my daughter, Mary, shall agree or engage to become married I authorize and direct the trustees of the share of my estate to be held in trust for her, to raise from the corpus or principal of such share and pay her the sum of one thousand dollars therefrom, so that she can expend the same as she may think proper in preparing for her marriage, and upon stich marriage being consummated I authorize and di- rect said trustees to raise and pay her from said corpus or principal of her said trust portion the further sum of ten thousand dollars clear of any trusts and to be disposed of as she may think proper. Provision for the Separate tTse of a Married Daughter With a Spend- thrift Clause Added. 619. Item. I give, devise and bequeath my property and es- tate, real, personal and mixed, to A B, in trust nevertheless for the sole and separate use of my daughter, C D, notwithstanding her present coverture, and not to be in any way or manner what- ever liable to the contracts, debts or engagements of her pres- ent husband, and not to be in any way or manner whatever FORMS. 253 subject to his control or interference and to pay her the net rents and income of said trust property tO' her during the term of her natural life whether she shall be married or not, and so that the principal or corpus and income of said trust shall not be in any way subject or liable to or for her debts, contracts, liabilities, or creditors or to be attached, or taken in execution, it being my intention that the said trust shall not terminate upon the death of her husband or upon her ceasing to be married, but that same shall extend during the whole of her lifetime. A Spendthrift Trust for a Son or Daughter. 620. Item. I give one-half part or share of my property and estate unto A B, in trust for the use and benefit of my son, C, D, and to pay him the net rents and income thereof for the term of his natural life and so that the said rents and income and the corpus or principal of the said trust shall not in any way be subject or liable to or for his debts, liabilities, creditors, as- signments, pledges, contracts, transfers or anticipations or to attachment or execution and at or upon the decease of my said son, C D, (here provide how the remainder will pass as by his will, etc.) There can be a provision that the trustee and his successors in their discretion may let the son have any por- tion of the principal at any time or in any event. There can be a spendthrift trust also for a daughter or any other person. Provision for a Son for His Entering Into Business. 621. If at any time after the arrival of my son, A B, at the age of twenty-five years the trustees of the share of my estate to be held in trust for him or their successors shall consider that he shall be competent to safely enter into business separately or in partnership and if he shall desire and make arrangements to do so with the approval of said trustees or their successors then I authorize said trustees or their successors to let him have from the corpus or principal of his trust portion a sum of money, or sums of money not exceeding together, ten thousand dollars absolutely and free from any trusts as capital to start in business. 254 LAW OF WILLS OF PENNSYLVANIA. Preserving TJnimproved Land for a Future Sale. 622. Item. Whereas, I am the owner of a tract of land (de- scribe land) and I desire that the same shall be kept awhile without any sale so that the same shall not be sacrificed. Now, therefore, I devise the said land unto (name trustees) in trust to hold the same for the term of ten years after my decease and to take care of, repair and manage the same, to pay the taxes and real estate expenses thereof and if (he, they or it) shall deem proper to rent the same or any part or parts thereof and to collect and receive the rents, issues and profits thereof and to pay the net amount thereof unto my wife if living or to my children equally in case she shall be deceased with discre- tionary power in said trustee or trustees to sell the said land or any parts or part thereof during the said ten years, but upon the expiration of the said ten years, the said trustee (or trus- tees) shall sell the said land and in case of any sale of said land the purchaser shall not be liable for the application, non-appli- cation or misapplication of the purchase money and in case of any sale of said land the net proceeds of sale shall be invested by said (trustee or trusts) and the interest and income on such proceeds shall be paid to my said wife for the term of her nat- ural life, and upon the decease of my said wife the said net proceeds of sale shall be paid to my said children free from any trusts, and I give and bequeath unto the said trustee or trus- tees the sum of ten thousand dollars in trust to hold and invest the same until the said land shall be sold and to pay from the interest and income of such money the said taxes, repairs, and real estate expenses, and to pay the balance of such interest and income not so needed to my said wife if living or if de- ceased to my said children and upon the sale of said land the said money for expenses shall go for my said wife c^to my children in the same way as directed as to the said pro?eeds of sale and I will and provide that the corpus, principal, interest and income of said trusts shall not be liable for the debts, contracts or liabilities of my said wife and children and that they shall not sell, assign or pledge their interests in said trusts nor waive or dispense with the said trusts by electioii or otherwise (and in case any of said trustees shall die or de- cline or cease to act the surviving or acting trustee or trustees FORMS. 255 shall fill the vacancy according to their judgment, and any successor shall have all the powers and discretions given to the original trustees.) Avoiding a Partition of Beal Estate and Conversion of Personal Estate. 623. After making any specific devises or bequests or pecun- iary legacies the following clause is suggested : Item. All the rest, residue and remainder of my estate and property, real, personal and mixed, I give, devise and bequeath unto A, B and C in trust for the following uses and purposes, viz. : First. To take care of and manage the same and to repair and pay taxes, charges and expenses of real estate and of the trust and to collect and receive the rents, issues, profits, inter- ests, dividends, and income thereof, until the same shall be di- vided and distributed as hereinafter provided, and to pay one- half part of the net amount of such income and receipts unto my beloved wife absolutely, and the other half part thereof to my six children in equal parts and shares free from any lia- bility for the debts, contracts or liabilities of my wife and children, or to any attachment or execution or to their assign- ments, pledges, transfers or anticipations. Second. I order and direct my said trustees within seven years after my decease wholly or partially at one time or from time to time during said seven years, to apportion and divide my said residuary estate and property so that my said wife shall have and receive one-third part thereof in fee simple and abso- lutely and my said children shall have and receive the other two-third parts thereof divided equally between them in fee simple and absolutely. Third. In apportioning any real estate I order and direct my said trustees to have the same appraised and valued by real estate experts at, or near the time of the division and in ap- pointing such appraisers and in making such appraisement and division I request that my trustees shall act without the ad- vice, suggestions or intervention of my wife and children so that any undue influence may be avoided. Fourth. In making any division of stocks, bonds and invest- 256 LAW OF WILLS OF PENNSYLVANIA. ments usually sold by stock brokers, I order and direct that the same shall be appraised and valued by stock brokers at or near the time of division, and in appointing such appraisers and in making such appraisement and division I request that my trustees shall act as provided as to real estate. Fifth. In making such divisions real estate, personal prop- erty and cash may be divided together so as to equalize shares. The trustees shall convey to my wife and children real es- tate given to them in such division, and also the trustees shall assign and transfer any personal property divided. Sixth. It is my desire that my estate shall be divided so far as possible without conversion, but in case my said trustees shall think best they may sell any of my said residuary real estate at public or private sale without any liability of purchasers to see to the application of purchase money, or they may sell and convert any stock, bonds or personal property they may think proper, and in case of any such sales the net proceeds of sale shall be divided and distributed as provided for unconverted property. Seventh. In case any of said trustees shall decline to act or shall be removed or die or become incompetent to act then any vacancies caused thereby shall be filled by the trustee or trustees who shall act as such by a writing signed and acknowledged by them, it being my desire that appointments shall be without suggestion or influence in any way of my wife and children, and I will and order that such trustees so appointed shall have all the powers and discretions given by me to . the original trustees. Note.— By a will as above indicated a mansion house and furniture can be first given to a wife for life or in fee or abso- lutely and specific or pecuniary legacies can be given to a wife and children. In making a division a wife can be given only a life estate in a divided portion and portions allotted for chil- dren can be given in trust for minors, married woman or to be protected from creditors, etc. In a division children of deceased children could be included. In making the divison the trustees can be authorized to set apart property for a wife for life, if she is given only a life estate. Until the division the estate can be preserved by a spendthrift trust. FORMS. 257 BiTiding and Devising According to a Survey. 624. Item. Whereas, I am the owner of a lot or tract of land situate (describe lot) in the Ward of the City of Phil- adelphia, and I have had the lot of ground surveyed, divided into building lots and the said lots numbered from i to 400 inclusive, and marked on a plan by John Jones, Surveyor of the said City for the purpose of having the said lots severally divided and devised to my wiie and six children. I give and de- vise the said tract of land unto John Thomas in trust to convey accordingly to said survey to my wife, Mary, to my son, John, and my daughter, Jane, respectively the lots of ground num- bered upon said plan as follows : To my wife, Mary, lots num- bered . To my son, John, lots numbered , and to my daughter, Jane, lots numbered , and it is my in- tention that my said wife and children shall have the said lots to be conveyed to them in fee simple and I order and request that the plan of the survey or a copy thereof shall be recorded in the recorder of deeds' office in the County of Philadelphia. Together as respects each of said lots respectively and the in- tended devise thereof with the common use, rights and priv- ilege of any alleyway bounding them and of the communicating alleys or passageways and water courses on said plan. Item. For the purpose of equalizing the shares of my said children I bequeath to my daughter, Jane, the sum of in addition to any other bequests by my will. Disposing of Beal and Personal Estate Without Conversion. 625. Item. I give, devise and bequeath unto my beloved wife and six children. A, B', C, D, E and F, and to their respec- tive heirs in fee simple and absolutely my property and es- tate as follows : First. To my said wife my dwelling house and lot of ground Number 100 Washington street, in the City of Philadelphia; my bond and mortgage made by John Jones for $10,000, dated the day of A. D., and the principal and interest of same; shares of my stock of owned and possessed by me, and numbered , and my six bonds of , for one thousand dollars each, dated the 17 258 LAW OF WILLS OF PENNSYLVANIA. and all my household goods and furniture in my said dwelling house, and all articles for use, ornament and pleasure therein, and my watch, jewelry and personal effects, and twenty-five thousand dollars. Second. To my son, A, all my right, title and interest as a partner in the firm of Smith, Jones & Co., and Third. To my son, B, all my shares of stock of Com- pany, numbered i, 2, 3, 4, 5, 6, 7, 8, 9 and 10, for $10,000 each, and all my right, title and interest as the owner of said stock. Fourth. To my daughter, C, my house and lot of ground, numbered , Washington street, in the City of Philadel- phia, and my farm situate (describe the buildings and house- hold and farming effects and property thereon), and my Life Insurance Policy, number , of the Company, in- suring my life for $10,000, and all my right, title and interest to or under said policy which is to be transferred accordingly. Fifth. To my sons, D and E, as tenants in common my store property and lot of ground, numbered , Third street, in the City of Philadelphia, now rented by me to , charged with the payment by the said D and E to my daughter, F, of ten thousand dollars within five years after my decease with in- terest thereon payable half yearly which devise is upon the con- dition precedent that they shall make, execute and de- liver to my said daughter, F, a bond and mortgage securing the payment of said sum and interest upon the said premises. Sixth. To my said daughter, F, the said amount and interest to be paid to her by my said sons, D and E, as aforesaid, and my house and lot of ground numbered street in the City of Philadelphia. Item. I give, devise and bequeath one-third part of all the rest, residue and remainder of my estate and property to my wife in fee simple and absolutely and the balance thereof to my said six children and their heirs in fee simple absolutely and equally. Note. — The testator should be careful by a new will or codi- cil to provide for cases of any of the property devised or be- queathed being sold or otherwise disposed of. FORMS. 259 Provision to Preserve tlie Stock of a Private Corporation From a Sale and Separation. 626. Item. Whereas, I hold and own a large quantity of the capital stock and bonds of the Washington Stove Manufactur- ing Company, of the City of Philadelphia, and it may be to the interest of my estate that the same shall be preserved for a time without separation. Now, therefore, I bequeath all my stocks and bonds of said company now owned by me or which shall be owned by me at the time of my decease, unto A B and C D, and the successors of them in trust to collect and receive the interest, dividends and income upon the said stocks and bonds, and to pay the net amount thereof unto my wife for the term of her natural life, and after her decease (as the will may provide) and I will, order and provide that said trustees shall not be in any way liable for any loss or in any way for taking, holding and continuing to hold the said stocks and bonds for the trusts of my will. It is my desire that said stocks and bonds shall be retained by my said trustees as investments for said trust as long as they shall think it safe and profitable and proper to do so, but if according to their judgment and discretion they shall think it best to sell, exchange or dispose of said stock and bonds they may do so, and I further will and provide that the corpus, principal and income of said trust shall not be subject or liable to or for the debts, contracts or liabilities of my said wife, or to attachment or execution, and that she shall not have the right to sell, assign, transfer or pledge her rights in said trust or waive and dispense with the said trusts. Note. — In case of a sale of any stock or bonds the trustees may be authorized to distribute the proceeds or any parts thereof absolutely. A succession of trustees can be provided for, and successors can be given the powers and discretions of predecessors. Legacies of Stocks of Private Corporations to Control Management. 627. Item. I give and bequeath unto my wife, Mary, five hundred shares of my stock of , now owned by me, the certificates of said stock being numbered Item. I give and bequeath unto my son, James, five hundred 260 LAW OF WILLS OF PENNSYLVANIA. shares of my stock of , now owned by me, the certificates of said stock being numbered Item. I give and bequeath unto my son, John, five hundred shares of my stock of , now owned by me, the certificates of said stock being numbered Item. I give and bequeath unto my said wife and said sons, James and John, all other stock of said company which may be owned by me at the time of my decease, to be divided equally between them without conversion. Item. It is my desire that my said wife and sons shall retain said stock bequeathed to them as long as they shall consider it safe and profitable to be, so that the benefit from and control of said corporation may be for the benefit of my family. Note. — It should be borne in mind that if said stock is sold in testator's lifetime he should make another will or codicil to supply the deficiency to a legatee. The wife and children owning the shares absolutely, the expressing of a desire that they shall retain shares will not legally bind them, but it may possibly influence them. Providing for Calls Upon Unpaid Stock. 628. Item. Having bequeathed unto my wife, Mary, for the term of her natural life, five hundred shares of my stock of , not fully paid up and liable to fu- ture calls. Now, therefore, in case of any future calls of said for payments on said stock, I order and direct that the trustee of my residuary estate hereinafter mentioned shall pay or raise from the corpus or principal thereof and pay the amounts of such calls and in such case my said wife shall have the benefit of such payments as if the same had been paid dur- ing my lifetime. Devise and Bequest of Business Property in Trust for Wife. 629. Item. I give, devise and bequeath unto A B my lot of ground, factory and store situate on Washington street, be- low Adams street, in the City of Philadelphia, and my business of manufacturing and selling carpets therein, and the boiler, engine, fixtures, machinery, tools, implements, materials, goods, merchandise, moneys and other property therein or FORMS. 261 thereto belonging, in trust nevertheless to conduct, continue and manage said business, and in so doing to purchase upon credit or otherwise materials, goods, merchandise and such other things as he may think necessary to manufacture car- pets, rugs and such other articles as are generally sold in the carpet business, and to sell goods for cash or credit ; to keep the said working fixtures and machinery in good order and repair ; to employ and discharge hands, to insure and do everything else he may deem necessary or proper in the carrying on of said business, and in trust to pay the net profits of said busi- ness unto my wife, Mary, for the term of her natural life. Pro- vided that my said wife shall have and be paid on account of said profits monthly payments of not less than fifty dollars per month, and so that any deficiency of such payments shall be made up from the corpus or capital of the trust if necessary, and to relieve said A B in the performance of his duties he is authorized to employ and at any time to discharge a manager and superintendent of said business who is to act under the general or specific directions of the said A B, for such compen- sation as the said A B' and my wife shall think proper, and the said A B for his compensation as such trustee shall be paid and allowed an amount equal to one-fourth of the net profits of said business in lieu of any commissions as trustee, and which is to be paid as an expense of the business to be deducted in estimating my wife's profits, and upon the decease of my said wife said business shall terminate. Provided, however, that my said trustee or wife may terminate the said business at any time they or either of them may think proper, and in such case my said trustee shall sell or lease the said premises, and sell or dispose of all my other business property as a whole, separately or otherwise, (purchasers not to be liable to see to or for the ap- plication of purchase money), and pay the net rents or interest on purchase of such sales to my said wife for the term of her life, and provided that if the said trustee, or any succeeding or other trustee or trustees of the said trust to be appointed as hereinafter mentioned, shall happen to die, or shall neglect or refuse or resign or become incapable or unfit to act as such trustee, then my said wife by any writing under her hand and seal may nominate, substitute and appoint some other fit person 262 LAW OF WILLS OF PENNSYLVANIA. to be a trustee for said trust, and so from time to time, as often as any such death, neglect, refusal, resignation, incapability or unfitness shall happen and the trustee so appointed shall have all the duties, powers and discretion herein provided for the said A B. Upon the decease of my said wife then the said trustee or his successor shall sell the said business, real estate and the property in said business without any liability of the purchaser for the application of the purchase money in any case of a sale of real estate and the net proceeds of sale shall be distributed and paid as follows : The above form can be changed andl adapted to the case where the testator may only be a tenant and to a division of net profits to other persons than to a wife. A Bequest of a Business to a Wife Absolutely. 630. Item. I give, devise and bequeath unto my wife in fee simple and absolutely my dwelling house and lot of ground (describe premises) and all my household goods and furniture therein and my business which I have therein and all the fix- tures, stock of merchandise, book debts, good will and other property which I have in or shall have in the store part of said premises at the time of my decease in or relating to my said business. Note. — For a small business the above disposition may be a good one. The wife will have the ownership and control. She can at any time convey the building or rent it or the store only and sell the business to sons or other persons. She could employ sons to help her. In case the business should be large and extensive, however, the wife being liable for the debts of the business may get into trouble if the business should fail by reason of her inexperience or other cause. A Bequest of a Business and Lease to a Wife. 631. Item. I give and bequeath my lease of the store prop- erty situate (describe property) and my business carried on by me in said premises and all my property in, belonging to and re- lating to said business now or at the time of my decease, includ- ing among other things good will, fixtures, goods, merchan- dise, book accounts, money on hand or in bank, insurances. FORMS. 263 etc., and order and direct my executors to assign said lease to her. A Bequest of a Business to Sons TJpon Their Agreeing to Support Mother. 632. Item. I give, devise and bequeath unto my sons, A and B, and their heirs in fee simple the building and lot of ground (describe premises), in which I carry on my business of and also the said business and all the property virhich I have in or may have in the said business or relating thereto, including (specify main kinds,) but I charge the said business real es- tate with the payment by the said A and B, their heirs, execu- tors, administrators and assigns to my wife, C, during her life of successive monthly payments of thirty-five dollars each, the first payment to be made at the end of one month from my de- cease, and the above devise and bequest is made upon the condi- tion precedent that my said sons shall make, execute and ac- knowledge and deliver to my said wife a first mortgage of the said real estate as collateral security to secure the payment of the said charge. A Bequest of a Business as an Advancement. 633. Item. I give and bequeath unto my son, A B, absolutely all the property of my business carried on by me at , in- cluding, among other things, the lease, good will, fixtures, ma- chinery, tools, implements, materials, goods, merchandise, book debts, money on hand and in banks, commercial papers, insur- ance and contracts now owned by me or which may be owned by me at the time of my decease, provided that my executors or their successors by the aid of experts, if necessary, shall ascer- tain, fix and determine the value of the said property bequeath- ed, and the amount of such valuation shall be considered as an advancement to my said son, not bearing interest on account of the share of my estate bequeathed to him by my will. Devise to a Wife of a Farm for Life. 634. Item. I give and devise unto my beloved wife, A, for the term of her natural life, my farm whereon I now reside, situate on Road, in Township, County, in 264 LAW OF WILLS OF PENNSYLVANIA. the State of Pennsylvania, containing about acres, which I purchased of , with the mansion house, barn and other buildings and improvements thereon erected, and after the de- cease of my said wife I give and devise the said farm to (as the will may provide. ) Item. I give and bequeath unto my said wife absolutely my watch, and all my articles of personal use, and all my house- hold goods and furniture in the mansion house on the said farm, and all articles therein for household use, ornament, con- venience, enjoyment or consumption therein or thereunto be- longing, and all crops and vegetables growing in or gathered from the said farm, and all hay, straw, manure, and produce, thereon at the time of my decease, and all my live stock, horses, cattle, cows, vehicles, movable fixtures and machinery, tools, implements, and all other movable or personal property which may be upon the said farm at the time of my decease. Devise of a Farm in Trust for a Wife. 635. I give, devise and bequeath my farm upon which I now reside, situate on Road, Township, ' County, State of Pennsylvania, containing about acres, with my dwell- ing house, barn, and other buildings thereon erected, and all the fixtures and improvements thereon, and all my household goods and furniture, and all my farming fix- tures, machinery, tools, implements, teams, carts, wagons, and other vehicles, and all my other personal property whatever used by me in farming said farm unto A B, in trust neverthe- less to suffer and permit my beloved wife, Mary, for and dur- ing the term of her natural life to occupy and use the said dwelling house with the goods and furniture therein, and farm the said farm for her use and benefit, she to pay the taxes there- for and to occupy, use and enjoy all the farming property afore- said in such farming, but in case my said wife shall not desire to farm the said farm but to live in said dwelling house with the goods and furniture therein she shall have the right to do so, but in such case my said trustee shall rent the said farm, re- serving the dwelling house for the use of my wife, and pay the net rents to my said wife for her own use and benefit, but in case my said wife shall desire not to farm the said farm or to FORMS. 265 live in the said dwelling house then the said trustee shall rent the dwelling house and farm together with the farming, per- sonal property thereon, and pay the net rents to my wife as aforesaid, and in such case my wife shall have and own the household goods and furniture absolutely and she can remove the same, or in case my said wife shall not desire to farm said farm or to live in said dwelling house my said trustee may and he is hereby authorized to sell and convey the said farm and farming personal property without any liability of the purchaser to see to the application of the purchase money, and upon the de- cease of my said wife, I give, devise and bequeath the corpus or principal of said trust property tO' my child or children who may be living at the time of her decease, and the child or chil- dren of any child or children of mine who may then be deceased, in fee simple and absolutely and equally, such children of de- ceased children taking their parents' share by representation, and I will and provide that any products of the farm and crops in the ground on the farm at the time of my decease, and any farm animals thereon or live stock thereon at that time shall go and belong to my wife absolutely, and I will and provide that my said wife shall not be required to give security as life ten- ant of personal property, and that the interest of my wife in the rents, income and principal above provided shall not be liable for her debts, contracts, liabilities, transfers or pledges. As to said purchase money my wife shall be paid the net income there- on for the term of her life. Note. — If the products of the farm or any part thereof shall not be sufficient for her support then give a sum in trust for her for life. The children and grandchildren can be given vest- ed instead or contingent interests in remainder. Unmarried children, unable to support themselves, can be given a right to occupy the farm with the mother and to be supported by her, or they can be given a share of rents in case of renting, or a share of proceeds or interest, or a share of proceeds in case of a sale. The trust can be made to shift in case of the wife marrying again. Bequest of the Interest of a Testator in a Partnership to Son. 636. Item. I give and bequeath all my right, title, interest. 266 LAW OF WILLS IN PENNSYLVANIA. capital, and property, as partner in the firm of John Jones & Co. to my son, James, if he shall make an agreement with my surviving partners: of said firm for his admission in a part- nership between him and the surviving partners to continue the firm business, but in case such an agreement shall not or can- not be made in a reasonable time allowed for the purpose, my said son shall be paid and receive the amount due my estate upon the settlement of the business of my firm, so he can put same in as his capital in any other firm for his own use and benefit and my interest put into the new firm or any amount so received by my son from my firm business shall be considered and treated as an advancement of his share of my estate, which may be left or given to him by my will or otherwise. Pro- vided, however that this bequest shall not include any inter- est in real estate owned by me individually but of which my firm shall have had only the use during the partnership. Provision as to Settling a Partnership at Dissolution. 637. Item. I authorize my executors to permit my surviv- ing partners tO' continue the business of the firm of A, B & Co. after my decease until the first day of January or July, suc- ceeding my decease as the case may be according to the terms of the articles of partnership with my partners, and in the set- tlement of the partnership accounts and business, I authorize my executors to agree as to all matters relating thereto, and as to the amount which shall be due to my estate and to agree as to the time, manner and security for payment of such amounts, and I authorize my said executors to have any differences in set- tling such accounts fixed by arbitration, and as to real estate of the said firm the legal title of which is in my name (or is partly in my name) I authorize and empower my said executors or the survivors or survivor of them to convey such legal title to the surviving partners if in accordance with the partnership settlement. Bequest of an Interest of a Special Partner Under Act of 1838. 638. Item. Whereas, I am a special partner in the firm of Smith & Jones, of the City of Philadelphia, of which John Smith and William Jones are general partners, Now, there- FORMS. 267 fore, I bequeath unto my son, William Brown, all my right, interest and property in the said firm as such special partner, and all moneys due or owing or which shall be due or owing to me from said firm or said general partners by reason of said special partnership. Ordering Executor to Continue the Interest of a Special Partner Under Act of 1838. 638*. Item. Whereas, I am a special partner in the firm of Smith & Jones, of the City of Philadelphia, of which John Smith and William Jones are general partners. Now, therefore, I order and direct my executor hereinafter named or his succes- sors to continue my interest therein as special partner for the unexpired term thereof for the benefit of my estate (or my said executor or his successors may sell my interest as special partner as provided by law or otherwise) and they shall collect and receive all moneys due or which shall be due to my estate by reason of my having been such special partner, and they are empowered and authorized to make any agreements, transfers and settlements they may think proper as to such partnership, its property and my interest therein, and the net amount re- ceived from said firm and its business shall be distributed (as the will may provide. ) Bequest by a General Partner in a Partnership Under Act 1838. 639. Item. Whereas, I am a general partner in the firm of Smith & Jones, of the City of Philadelphia, of which John Smith and myself are general partners and John Brown is special partner, and whereas, the said John Smith and John Brown have assented in writing that I may bequeath my inter- est in said partnership to my son, Benjamin Jones, absolutely. Now, therefore, under and by virtue of such assent and the Act of Assembly in such case made and provided, I hereby bequeath unto my said son, Benjamin Jones, absolutely all my right, title and interest in, to and out of the said firm and part- nership, and my property therein, all moneys which shall be due or payable to me as such partner. Bequest of an Interest in a Limited Partnership Under Act 1874. 640. Item. Whereas, I have an interest as partner in a lim- 268 LAW OF WILLS OF PENNSYLVANIA. ited partnership association named "Smith, Jones and Brown, Limited," formed under the provisions of the Act of Assembly of the State of Pennsylvania of 1874, and the supplements thereto, and Whereas, the said association has no rules or regu- lations for the admission of legatees of deceased members as members of said association. Now, therefore, I bequeath unto my sons. A, B and C, all my right, title and interest as partner in said association, of, in, to and out all the property, money and estate thereof and they, my said sons, shall have all the rights and remedies provided by law in case they shall not be elected as members of said association. See note to section as to transfer of interests in limited part- nerships. Agreement for a Double Will. 641. This agreement made this day of A. D. nineteen hundred and two ( 1902), between A B, of the City of Philadelphia, of the first part, and C D, of the same place, of the second part. First. I, the said A B, in consideration of the sum of fifty dol- lars, to me in hand paid by the said C D at and immediately before the making and execution of these presents, the receipt whereof I do hereby acknowledge, and of the covenants and agreements of the said C D, hereafter do hereby, for myself, my heirs, executors and administrators, covenant, promise and agree immediately upon the execution and delivery hereof, to make my last will and testament by a double will with the said C D and thereby devise and bequeath unto the said C D, for the term of his natural life all my property and estate, real, personal and mixed, and upon his decease I give, devise and bequeath the same unto such of my brothers and sisters as may be living at the time of his decease in equal parts or shares in fee simple and absolutely, and I further covenant, promise and agree with the said C D, his heirs, executors and administrators not to revoke, cancel, destroy, change, alter, or modify said will to be made by me in any way or to make any codicil or codicils thereto without the written consent of the said C D, and that in case of a breach of any of said agree- ments or covenants of mine my estate upon my decease shall FORMS. 269 be liable to the persons thereby injured or affected for dam- ages, and that I, the said C D, in consideration of the sum of fifty dollars to me in hand paid by the said A B at and immedi- ately before the making and execution of these presents, the receipt whereof I do hereby acknowledge, and of the covenants and agreements of the said A B above, do hereby for myself, my heirs, executors and administrators, covenant, promise and agree immediately upon the execution and delivery hereof, to make my last will and testament by a double will with the said A B, and thereby devise and bequeath unto the said A B for the term of his natural life all my property and estate, real, per- sonal and mixed, and upon his decease I give, devise and be- queath the same unto such of my brothers and sisters as may be living at the time of his decease in equal parts or shares in fee simple and absolutely, and I further covenant, promise and agree with the said A B, his heirs, executors and administra- tors, not to revoke, cancel, destroy, change, alter or modify the said will to be made by me in any way or to make any codicil or codicils thereto without the written consent of the said A B, and that in case of a breach of any of said covenants or agreements of mine my estate shall be liable to the persons thereby injured or affected for damages. A Double Will. 642. Be it remembered that we, A B and C D, of the City of Philadelphia, children of E F, deceased, in fulfillment of and in accordance with an agreement between us for a double will bearing even date herewith and signed, executed and delivered immediately before this will do hereby make such will as follows: I, the said A B, do hereby give, devise and be- queath all my estate and property, real, personal and mixed, unto the said C D for the term, of his natural life, and upon his decease I give, devise and bequeath the same unto my brothers and sisters who shall be living at the time of his decease in fee simple and absolutely, and I, the said C D, do hereby give, devise and bequeath all my property and estate unto the said A B for the term of his natural life, and upon his decease I give, devise and bequeath the same unto my brothers and sis- ters who shall be living at the time of his decease in fee simple 270 LAW OF WILLS OF PENNSYLVANIA. and absolutely. We respectively order and provide that neither of us shall be required to give any security for personal prop- erty to protect those entitled in remainder. We respectively ap- point the Trust Company executor of our above will, above incorporated in a double will. In witness whereof we have hereunto set our hand and seal this day of A. D. nineteen hundred and two. SEAL. SEAL. Signed, sealed, published and de- clared by the above named A B' and C D at the same time as their last wills and testaments as a double will, in the presence of us who in their pres- ence and in the presence of each other have hereunto set our names as wit- nesses thereto at the request and in the presence of the said testators and of each other. Will in Case of an Agreement to Convey Real Estate. 643. Item. Whereas, I have agreed to sell to A B my house and lot of ground situate (describe property) by a certain con- tract in writing. Now, therefore, if I should die before I shall convey to the said A B the said premises under said contract, then I order, authorize and direct my executor hereinafter named to sell, grant and convey the said premises to the said A B under and according to the terms and provisions of said contract and to hold the net proceeds of sale in trust to pay the net income thereof unto my wife for the term of her life free from her debts and creditors and after her decease the said net proceeds of sale shall go (as the will may provide), but in case the said A B shall neglect or refuse to perform his said contract so that my executor will not be bound to convey the said premises to him then I give and devise the said premises to my said executor to hold the same in trust for the benefit of my said wife for the term of her life and to pay her the net rents and income thereof free from her debts and FORMS. 271 creditors and upon her decease the said premises shall go (as the will may provide. ) ( See section as to agreements to convey. ) Power of Sale When There is MTo Conversion. 644. Item. I give, devise and bequeath all my real estate to my wife for the term of her natural life and after her decease to my three children, A, B and C, and their heirs, and I au- thorize and empower my executor hereinafter named to sell any of my real estate for the purpose of paying my debts, if the lien thereof on my real estate has not legally expired, with- out any liability of purchaser for the application, non-applica- tion or misapplication of the purchase money. Power of Sale When There is a Conversion. 645. Item. I order and direct my executor hereinafter named to sell all my real estate at public or private sale without any liability of purchasers for the application, non-application or misapplication of purchase money and upon any such sale thereof I order and direct my said executor to distribute and pay the net proceeds of sale as follows, viz. : Authorizing Executor to Sell an Interest in a Partnership. 646. Item. I hereby authorize my executor or his successor to have an appraisement and valuation made of my interest in the firm of "Smith, Jones & Co.," of which I am a member, by two appraisers, one of whom shall be appointed by surviving partners and the other shall be appointed by my executor or his successor, and a third appraiser shall be chosen by the two ap- praisers in case they cannot agree, it being my desire that my executors shall value property to ascertain my interest by the aid of experts in case they shall not all be qualified to value property themselves, and I authorize my said executor to sell to the surviving members of said firm or to a new firm in- cluding my surviving partners, and any such sale shall be for the price or value which may be fixed by such appraisement. Power Given to Trustees to Sell. 647. I authorize and empower my said trustees or the sur- 272 LAW OF WILLS OF PENNSYLVANIA. vivors or survivor of them or such person or persons, cor- poration or corporations as may succeed them in the said office at any time during the continuance of the trusts when they shall deem it advisable so to do to sell and dispose of all and any part of the real or personal estate so held in trust by them at public or private sale or sales for such prices and on such terms as they may deem best and to acknowledge and de- liver proper deeds of conveyance for any or all of the real es- tate so sold to the purchaser or purchasers thereof in fee simple or for any less estate free of all trusts and all liability on the part of the purchasers for the application, non-application or misapplication of the purchase money. Provision for Succession of Executors and Trustees. 648. Item. In case any executor or trustee or succeeding ex- ecutor or trustee of this will shall die or renounce or decline or refuse or become incapable or unfit to act or shall be re- moved or shall resign then the remaining executors or trustees shall appoint a person or trust company to fill the vacancy with the consent and approval of beneficiaries of full age, and such executor or trustee so appointed shall have all the powers and discretions vested or intended to be vested in the person whose vacancy is to be supplied. Note. — Sometimes it may be improper for a beneficiary to choose or suggest his or her trustee. A testator can select and name trustees to fill vacancies. Authority to Betain and Hold Illegal Investments. 649. I authorize and empower my executors and trustees and their successors, in their discretion, to retain, obtain and hold any securities or investments not prescribed or authorized by law without liabilty for any loss for so doing or of being surcharged with the same and they are released from all such liability, but I recommend, however, that in case of any well grounded apprehension of danger of loss from such holdings they will exercise their discretion in disposing of the same. FORMS. 273 The Exercise of a Power of Appointment. 650. Item. Whereas, my father, A B, by his last will and tes- tament, dated the Tenth day of January, A. D. 1900, proved and recorded in the register of wills' office of the County of Philadelphia, in Will Book Number 176, page 10, gave and devised a certain house; and lot of ground situate, No. 100 Washington street, in the City of Philadelphia, in trust for me for the term of my life with power for me to appoint by my will as to how the said property shall go and be disposed of after my decease. Now, therefore, I exercise said power of ap- pointment, and by virtue and in pursuance thereof I do hereby appoint that the said premises after my decease shall go, and I devise the same untO' all my children who shall be living at the time of my decease, and their heirs in fee simple. Item. Whereas, by a certain deed of marriage settlement between my husband and myself prior to our marriage, dated the Tenth day of January, A. D. 1900, and recorded in the recorder of deeds' office, of the County of Philadelphia, in Deed Book T H, No. 10, page 50, all my real and personal es- tate and property was conveyed to John Jones in trust for me for the term of my life, and after my decease in trust for my husband, A B, for the term of his life, and after our decease to or for such person and persons and in such way and man- ner as I should by my will and testament appoint. Now, there- fore, in exercise of said power of appointment, and by virtue and in pursuance thereof, I do hereby appoint that said real and personal estate and property shall go, and I give, devise and bequeath the same unto my brothers and sisters, viz. : C, D, E, F, G and their heirs in fee simple and absolutely. A Codicil Where Additional Legacies are Given. 651. Whereas, I, A B, of , having made and duly ex- ecuted my last will and testament, in writing, bearing date the day of A. D. . Now, I do hereby de- clare this present writing to be as a codicil to my said will and testament, and direct the same to be annexed thereto, and taken as part thereof : And I do hereby give and bequeath unto C D, my brother, the sum of five hundred dollars, and unto E F, my sister, the sum of five hundred dollars. In witness iS 274 LAW OF WILLS OF PENNSYLVANIA. whereof, I, the said A B, have to this codicil, set my hand and seal, this day of A. D. SEAL. Signed, sealed, published, and de- clared by the said A B as and for a codicil to his last will and testament, in the presence of us, who, in his pres- ence, and in the presence of each other, have, at his request, subscribed our names as witnesses thereto. A Codicil Bevoking a Legacy given by a Prior Codicil. 652. I, A B, of , having made my last will and tes- tament dated the day of A. D. , and also a first codicil thereto, dated the day of A. D. , whereby I bequearth to C D the sum of five hundred dollars. Now, therefore, I do hereby by this a second codicil to my said will revoke the said legacy given by said first codicil to my will. In witness whereof, I, the said A B, have to this a second codicil to my said will set my hand and seal this day of A. D. SEAL. Signed, etc. A Codicil BreToking a Devise of Heal Estate. 653. Be it remembered that I, A B, of , do hereby make a codicil to my last will and testament, dated the day of A. D. . Whereas by my said will I gave and devised to my beloved wife (here describe the real estate as in the will and sufficiently to identify it) for the term of her life and the remainder thereof after her decease to my children and their heirs in fee simple. Now, therefore, I do hereby make this a codicil to my said will and testament and revoke the said devise to my wife for life and to my children in fee, and I do give and devise to my said wife the said real estate to her and to her heirs in fee simple so that she shall have the sole and full ownership thereof instead of a mere life estate therein. In witness, etc. FORMS. 275 A Codicil Where Several Legacies are Revoked or Decreased. 654. Whereas I, A B, of , have, by my last will and testament, in writing, duly executed, bearing date the day of A. D. , given and bequeathed to C D and E F the sum of two thousand dollars each. Now I, the said A B, being desirous of altering my said will in respect to the said legacies, do therefore make this present writing, which I will and direct to be annexed as a codicil to my said will, and taken as a part threof ; and I do hereby revoke the said legacies by my said will given to the said C D and E F, and I do give and be- queath to each of them the sum of one thousand dollars only in lieu thereof. And I do ratify and confirm my said will in every thing, except where the same is hereby revoked and altered as aforesaid. In witness, etc. A Codicil for a Child Born After Date of Will. 655. I, A B, do hereby make a codicil to my last will and tes- tament, dated the sixth day of January, 1902, viz: My son, John, having been born after the date of said will, I do hereby provide for and give, devise and bequeath unto him and his heirs in fee simple and absolutely one-fourth part and share of all my estate, real, personal and mixed, and so that he shall have and receive an equal part of my said estate with my other children in lieu of any share he may have under the intestate laws, and I reduce and revoke the shares of my other children accordingly, so as to provide for said share for my son, John, and I appoint my wife as guardian of his person and estate and with this change and in all other respects I do confirm my said will. In witness whereof, etc. Benunciatlon of Executor. 656. To A B, Esq., Norristown, August 17, 1902. Register of Wills of Montgomery County, Pa. Sir : — Having been appointed as an executor of the last will and testament of C D, late of your county, deceased, I do here- by renounce my right to act as such executor, and refuse to take upon myself the burthen of the execution of said will. Witness: E. F. G. H. 276 LAW OF WILLS IN PENNSYLVANIA. Caveat Against the Proof of a Will. 657. To A B', Esq., Register of Wills for the County of , State of Pennsylvania. I, C D, one of the heirs (or as the case may be) of E F, late of the of , deceased, do hereby caveat and pro- test against the probate of any last will and testament or codicil or instrument in the nature thereof, being or pretending to be the last will and testament, or codicil of the said E F, until ex- amination thereof in the proper court, and the decree of the said court be therein pronounced, or until I, , shall have been heard. Witness my hand this day of , A. D. C. D. Caveat Against Granting Letters of Administration c. t. a. 658. To A B, Esq., Register of Wills for the County of , State of Pennsylvania. I, C D, being interested in the personal estate of E F, late of the , of , deceased, do hereby caveat and protest against granting letters of administration cum testamento an- nexo, or otherwise therein or therefor to or any other person, until the examination of his or their right thereto before the proper tribunal be had, and the decision of the said tribunal therein be given, or until I shall have been heard. Witness my hand this day of , A. D. C. D. Form for Appeal to Orphans' Court, FhiladelpMa, Fa. 659. To the Register of Wills of Philadelphia County. Estate of , deceased. The undersigned hereby appeal to the orphans' court of said county, from the decision of the Register of Wills in the above estate, admitting to probate a certain paper writing, dated the day of, 18 , as the last will and testament of said de- cedent and granting letters testamentary thereon. , being duly doth depose and say that the above-mentioned appeal is not intended for delay. Sworn and subscribed, etc. FORMS. 277 And now, ,18 , security in the above appeal is fixed in the sum of $ Register of Wills. ,18 . Security entered. Petition for Citation Sur Appeal. 660. The petition of respectively represents : That departed this life on the day of , 18 , leaving as the persons entitled to his estate under the intestate lavi^s, children (or as the case may ) viz: A B, C D (your petitioner), E F, etc. That on the day of ,18 , a certain paper writ- ing, dated the day of ,18 , (a true copy of which is hereto annexed), and alleged to be the last will and testament of said decedent, was admitted to probate by the Register of Wills, and letters testamentary thereon issued to , the executor therein named. That on the day of , 18 , your petitioner filed his appeal from said judicial act or decision of the Register of Wills, duly entered security required by the Act of Assem- bly of June 6, 1887, and the record of the proceedings had be- fore the Register, with the testimony, has been duly certified by him and filed in this court. That your petitioner verily believes and expects to be able to prove that said decedent, at the time of the date of the ex- ecution of the alleged will, was not of sound disposing mind, memory and understanding, but on the contrary thereof was of unsound mind and incompetent to execute any paper re- quiring the exercise of discretion, mind, memory, or under- standing; (or, that the execution of said alleged will was pro- cured by the contrivance and undue influence of and others whom your petitioner is, at this time, unable to name with precision), as appears by the following statement of facts, to-wit : ( Set forth the facts relied on. ) Your petitioner therefore prays the court to award a citation, directed to all parties interested, to-wit: to show cause why the said appeal should not be sustained, and the judicial act or decision of the Register complained of set aside, and why an issue should not be awarded to try the following ques- 278 LAW OF WILLS IN PENNSYLVANIA. tions : . Whether or not the said at the time of the execution of his last will and testament was of sound dis- posing mind, memory and understanding. Whether or not the making of said writing was procured by undue influence on the part of and other persons. Whether or not the said writing is the last will and testament of said , deceased. And he will and (Affidavit). Deciee for Citation. 661. And now, ,18 , it is ordered and decreed that a citation be awarded, directed to all the parties interested named in the foregoing petition, to show cause why the ap- peal from the decision of the Register of Wills, admitting to probate a certain writing, dated the day of , 18 , as the last will and testament of , deceased, should not be sustained and the said decision set aside, and also why an is- sue should not be awarded to try the following questions, to- wit : , returnable according to law. Kequest for an Issue in tb.e Court of Common Fleas. 662. In the matter of the alleged will and codicils of A B, deceased. Before the Register of Wills of Philadelphia County. And now the day of A. D. , C D and E F, sons and only next of kin and heirs-at-law of A B, late of the city of appear, by C D, their counsel, and declare and say that the paper writings exhibited and purporting to be the last will and testament of A B dated the day of A. D. , and codicil thereto dated the day of A. D. , and admitted by the Register of Wills of Phila- delphia county, on the day of A. D. , are not the last will and testament and codicils thereto of said decedent ; and he requests that an issue may be sent unto the court of common pleas of said county to try the facts. C D, Attorney For Said Heirs, etc. FORMS. 279 In the Court of Common Pleas, No. , of Philadelphia County, No. 10, of March Term, 1880. Declaration on Feigned Issue to Try Validity of Will. 663. John Smith, V. John Jones. John Smith, the plaintiff above named by Thomas Brown, his attorney, complains of John Jones, the said defendant, on a plea of assumpsit : For that whereas, on a certain day, to- wit: on the day of A. D. , at the county aforesaid, a certain discourse was had and moved between the said plaintiff and the said defendant concerning a certain pa- per writing, bearing date the day of A. D. , purporting to be the last will and testament of , deceased, and upon that discourse the said plaintiff then affirmed that the said paper writing was the last will and testament of , deceased, which affirmation the said defendant then denied, and alleged to the contrary thereof, and thereupon, to-wit, on the day and year aforesaid, at the county aforesaid, the said plaint- iff, at the special interest and request of the said defendant, then and there promised the said defendant to pay him the sum of one hundred dollars in case the said paper writing was not the last will and testament of , deceased, and in consideration thereof the said defendant then and there prom- ised the said plaintiff to pay him the sum of one hundred dol- lars in case the said paper writing was the last will and testa- ment of , deceased, and the said plaintiff avers that the said paper writing, dated as aforesaid, is the last will and tes- tament of deceased, to-wit, at the county aforesaid, whereof the said defendant then and there had notice, and that by rea- son thereof the defendant became or is liable to pay to the plaint- iff the said sum of one hundred dollars ; nevertheless the said defendant not regarding his said promises and undertakings, hath not paid to the said plaintiff the said sum of money, or any part thereof, although often requested so to do ; but to pay the same hath hitherto wholly refused and still doth refuse, to the damage of the said plaintiff five hundred dollars, and there- fore he brings suit. Thomas Brown, Attorney for Plaintiff. 28o LAW OF WILLS IN PENNSYLVANIA. Count in a Declaration as to Codicil Where it is Alleged That De- cedent is Not of Sound Mind. 664. And whereas, also afterward, to-wit, on the day and year aforesaid, at the county aforesaid, a certain other dis- course was had and moved by and between the said plaintiff and the said defendant of and concerning a certain other in- strument of writing purporting to be a codicil to the last will and testament of the said, , which said instrument of writing purporting to be a codicil as aforesaid, bears date the day of A. D. , upon which discourse the said plaintiff did then and there affirm that the said instru- ment of writing was a codicil to the last will and testament of the said , deceased, which said affirmation of the said plaintiffs the said defendant did then and there deny. And thereupon the said defendant afterward, to-wit, on the day and year first aforesaid, at the county aforesaid, in consideration that the said plaintiff at the special instance and request of the said defendant, had paid to the said defendant other one hun- dred dollars, upon himself did assume and then and there faith- fully promised the said plaintiff to pay him the said sum of one hundred dollars in this count mentioned, if the said in- strument of writing was a codicil to the last will and testament of the said , deceased; and the said plaintiff avers that the said instrument of writing in this count mentioned, on the day and year first aforesaid, was a codicil to the last will and testament of the said , deceased, to-wit, at the county aforesaid, whereof the said defendant then and there had no- tice. (Supposing the above is a second count as preceded by a count as to a will there then can be a conclusion as fol- lows to apply to both the will and codicil. ) Nevertheless, the said defendant, his promises and undertak- ings as aforesaid not regarding, but contriving to deceive the said plaintiff in this behalf, hath not yet paid to the said plaint- iff the said several sums of money, or any part thereof, al- though the said defendant afterward, to-wit, on the day and year first aforesaid, at the county aforesaid, and often after- wards, was requested by the said plaintiff so to do, but the same to pay to him has hitherto wholly refused, and still doth FORMS. 281 refuse, to the damage of the said plaintiff of five hundred dol- lars, and therefore he brings suit, etc. Thomas Brown, Attorney for Plaintiff. Fleas and Beplicatlon to Declaration as to Will and Codicil. 665. And the defendant, by John Jones, his attorney, come and defends and says as to the first count in said declara- tion, that well and true it is that he, the said defendant, did as- sume in manner and form as the said plaintiff against him has declared; but the defendant further saith, that the said plaintiff in his action aforesaid against him ought not to have or maintain, because he saith that the said instrument of writing in the said declaration mentioned, purporting to be the last will and testament of , deceased, is not the last will and testament of the said , deceased, as by the said declaration mentioned is supposed, and of this he puts' him- self upon the country. JOHN JONES, Attorney for Defendant. (In case of a count for a codicil being inserted plead) : And as to second count in the said declaration the defendant says, that well and true it is that he did assume upon himself and promise in manner and form as the said plaintiff, against him in this count has declared.* And, as to the said several pleas of the said defendant, the said plaintiff doth the like. THOMAS BROWN, Attorney for Plaintiff. TABLE OF CASES. SECTION Appeal, Bacon's 289 Baker's II Ballantine's 166 Bank's 4IS Barnett's 353 Beck's 183 Board of Missions 454 Bredlinger's 449 Brotzman's 197 Castner's 476 Cawley's 13 Cotes' 318 Craig's 322 Culbertson 363 Cuthbertson's 97, 99 Darlington's 51 Dever's 93 Dixon's 117 Doebler's 283, 462 Domestic and Foreign Missionary Society's 467 Douglass' 103 Dugan's 194 Duval's 376 Earp's 353 Evans' 115 Ferry's 452 Fitzwater's 191 Foster's 120 Fow's 102 Fross & Loomis' 151 Gallagher's 413 Gass's 463 Grims' 182, 459 Hacker's 405 Hancock's 449 Hellerman's 471 Hess's 61 Hoff's 167 Hollingsworth's 431 Hoopes' SOI Johnson's 167, 467 Keim's 242, 244 Knauss' 103 Kreb's 222, 472 Lancaster Co. Bank's 411,412 Lennig's 162* Lewis' Lipman's McClure's McFarland's McPherson's Manifold's Mellon's Mickley's Minter's Morrow's Neale's Neff's Nice's O'Keason's Oliver's Orcutt's Page's 457 456 184 459 227 200 413 191 456 12 239 24 283 408 160 424 184 Pa. Industrial Home's 467 Patterson's 211 Physics' 283 Price's 88 Raudenbach's 451, 455 Reek's 448 Ritter's 4 Roberts' 184 Roth's 217, 219 Ruoff's 71 Schad's 2, s Sheetz's 460 Smith's 456, 4S8, 459 Sponslers 167 Utcherson's 108 Wainwright's 55 Walsh's 134 Wesco's 176 Wikoff's II, 15 Wineland's 63 Yarnall's 283 Armstrong's Estate 127, 161, 226 Armstrong v. Michener 312 Arnold v. Jacks' Executors 259 Ashburner's Estate 406 Auman v. Auman 283 Aurand v. Wilt 75 Bacon's Appeal Baird's Estate Baker's Appeal 283 289 63 II 284 TABLE OF CASES. SECTION Ballantine's Appeal i66 Bank's Appeal 41 S Bank v. Hartman 192, 449 Bank v. Lees 320 Baptist Church v. Robbarts 120 Barnett's Appeal 353 Battersby v. Castor 400 Bayard's Estate 205, 206, 363 Bayard v. Atkins 184 Becker v. Kehr 413 Beck's Appeal 183 Beck's Estate 349 Beilstein v. Beilstein 270 Bell's Estate 321 Bender v. Dietrick 4SS Best V. Hammond 467 Binn's Estate 42S Bispham's Estate 427 Bittinger's Estate 426 Bixenstein's Estate 222* Blackstone v. Blackstone 167 Blair v. Wood S24 Blight V. Blight 204 Blight V. Wright 370 Board of Missions Appeal 4S4 Boies' Estate 454 Bowker's Estate 514 Boyle V. Boyle 466 Boyer's Estate 492 Bradley's Estate 187 Bramberry's Appeal and Es- tate 260, 263, 264 Bredlinger's Appeal 449 Brendle v. German Reform Congregation 295 Brinton v. Martin 279 Brotzman's Appeal 197 Brown v. Williamson's Ex- ecutors 576 Brownfield v. Brownfield 467 Brubaker v. Huber 332, 3S0 Bruckman's Estate 229, 449, 480 Buchle's Estate 93 Budd's Estate 191 Burd's Exr. v. Burd's Adm. 185 Burford v. Burford 66 Burt V. Herron's Executors 466 Byrne v. Byrne 176 Cable V. Cable 4 Cameron v. Coy _ 311 Campbell v. Jamison 131 Caldwell's Estate 36 Carpenter v. Cameron 442 Carr's Estate 460 Carson v. Fuhs 28s Carstensen's Estate 325 Carter's Estate 39, lOI, III Castner's Appeal 476 Cawley's Appeal 13 Cheetham v. Muhlenberg 453 Chew V. Commissioners 251 Church V. Roberts 120 Clapper v. Frederick 147 Clarke's Estate 233 Clingan v. Mitcheltree iig Coale V. Quick 24 Cochran v. Cochran 29c, Coleman v. Eberly 467 Coleman's Estate 425 Coles V. Ayres 315 Commonwealth v. Crompton 134 Commonwealth v. Gordon 426 Commonwealth v. Hamilton 431 Conaughton's Estate ic, Conway's Estate 485* Cook's Estate 365 Cooper's Estate 333, 354, 378 Cotes' Appeal 31& Cotton's Estate 356 Cowles V. Cowles 455 Craig's Appeal 322 Crawford's Estate 170 Cresson v. Ferree 383 Culbertson's Appeal 36.-( Cuthbertson's Appeal 97, 99 Cumming's Estate 95, 168 Cummin's Estate 74 Curry's Estate 378 Daniel v. Daniel 34 Darlington v. Darlington 374, 384 Darlington's Appeal 51 Darlington's Estate 51 Dean v. Negley 48 Dever's Appeal 93 Del Busto's Estate 424 Devine's Estate i6g Dickson's Estate 74 Dickerson's Estate 152 Dietrick v. Dietrick 56 Dimond's Estate 41 Dinsmore v. Ramsay 414 Disston File Co., In re. 528 Dixon's Aoneal 117 Dodson V. Ball 283 Doebler's Appeal 283 Domestic and Foreign Mis- sionary Society's Appeal 467 Donaldson's Estate 14, 183 Douglass' Estate 103 Dugan's Appeal 194 Dugan's Estate 41 Dunn's Estate ^ Duval's Appeal 376 Duvall's Estate 408 TABLE OF CASES. 285 Earp's Appeal 353 Eckert v. Flowry 43, 55 Eckfeldt's Estate 167 Edward's Estate 444 Eichelberger's Estate 203 Elmslie's Estate 22";* Eshbach's Estate 289 Espenship's Estate 35^ Estate Armstrong's 127 161, 226 Ashburner's 406 Bailey's 179 Baird's 63 Bayard's 205, 206, 363 Beck's 349 Bell's 321 Binn's 425 Bispham's 427 Bittinger's 426 Bixenstine's 222 Boies' 454 Bowker's S14 Boyer's 492 Bradley's 187 Bramberry's 260, 263, 264 Bruckman's 229, 449, 480 Buchle's 93 Budd's igi Caldwell's 36 Carr's 460 Carstensen's 325 Carter's 39. lOI, III Clarke's 233 Coleman's 42s Conaughton's 19 Conway's 48s* Cook's 36s Cooper's ZZZ, 354, 378 Cottons 356 Crawford's 170 Cumming's 95, 168 Cummin's 74 Darlington's 51 Del Busto's 424 De vine's 169 Dickson's 74 Dickerson's 152 Dimond's 41 Donaldson's 14, 183 Douglass' 103 Dugan's 41 Dunn's 69 Duvall's 408 Eckfeldt's 167 Edward's 444 Eichelberger's 202 Elmslie's 225* Eshbach's 289 Espenship's 397 SECTION Evan's 228 Finnen's 428 Fisher's 194 Fitzwater's 191 Fleminei's 180 Flickwir's 202, 223 Fosbenner's 220 Foster's 46 Fouche's g Fow's 102 Francis' 456 Frazier's 63 Fry's 31* Gangwere's 42 Gilchrist's 500, 602 Gilmor's 154, 523, 132, 467 Githen's 382, 436 Golz's 480 Gorgas's 217, 232 Griffin's so, 99. 108. 292 Gumaar's 195 Hale's 426 Hamilton's 12, 122 Hammond's 409 Hand's 60 Harrah's 389 Harrison's 2, 8, 220 Hartzell's 416 Heilbrun's 48 Heiss' 219* Hellerman's 471 Hibb's 332 Hinton's 196 Hoffman's 105 Holbrock's 157 Holland's 471 Hoppel's 180 Howell's 421 Huber's 145 Humphries' 55 Hunter's 449 Ihries' 495 Jacobs' 454, 498 Jeffrie's 12, 20* Johnson's 167 Jones' 418 Kane's 268 Keen's 183 Keys' 295 King's 190 Kisecker's 310 Klapp's 4S2, 454, 461, 471 Knight's 457 Knox's 2, 6, 62 Kreb's 222, 472 Krug's .^00 Kuntzleman's 351, 286. 353 Lambaert's 2 286 TABLE OF CASES. Lanfeld's Lawrence's Lee's Lennig's Levy's Lewis' Line's Lippincott's Lisle's Lloyd's Logan's Ludlam's McAleer's McCalla's McCarthy's McDaniel's McKee's Macalester's Magee's Major's Malone's Maris's Marshall's Martin's Menoher's Merrefield's Meyers' Mickley's Miller's Mitcheson's Moore's Moran's Morgan's Mulligan's Murphy's Murray's Myer's Newlin's Nichol's Oliver's Owen's Padelford's Palmer's Parthimer's Pearson's Pennock's Pepper's Phillip's Pinkerton's Plates' Price's Pritchett's Quinn's Ralston's Ramsey's Reeser's Reimer's Richard's 316 332, 407 21, 22, 26 162* 498 140, 430 423 482 429 402 54 167 221 486* 135 179 217 227 417 389 134 423 3S5 223* 469, 471 475 224* 212 78, 108 221* 208, 231 19s 398 224 490 47, 55 381 43 81 477 363 207 lOI 142, 145 170, 4SO 466 23, 25, 355 223, 230 472 62, 67 88 2 336 443 116 389 454, 482 27, 28, 31 Riley's Rittenhouse's Robinson's Roger's Root's Royer's Rudys' Rutt's Schmidth's Scott's Seizinger's Shantz's Sharpies s' Sheetz's Shell's Silverthorn's Sincox's Singerly's Smith's 30, si"**, Souder's Spellier's Steinmetz's Stephens' Stewart's Stockham's Strawbridge's Sullivan's Sunday's Swann's Tallman's Tarr's Thompson's Tiemey's Tolan's Tomlinson's Tyson's Van Dusen's Wahl's Walton's Ward's Wasson's Wayne's Weiler's Wendt's White's Whitney's Widdowson's Wilkinson's Wiley's Wingert's Wise's Wolfersberger's Wright's Yerkes's Yosts' Zehender's Evan's Appeal Evan's Estate 123 191, 235 172, 174 467 100 322, 382 18 454 10 352 338 363 434 345 162 112 227 so, 222, 498 165 36 343 55 29 14a 498 2 10 422 45, 51 36 23s* 286 156, 159 438 116 228 220* 468 40 52 491 347 411 150 218, 256 126 52 171 18 log 104. 410 179 14, no 167 186 234 "5 228 TABLE OF CASES. 287 Evans v. Chew Evans v. Smith Everman v. Everman SECTION 282 Fahnestock v. Fahnestock 396 Fahrney v. Holsinger 273 Ferry's Appeal 452 Fidler v. Lash 380. 382 Finnen's Estate 428 Fisher's Estate 194 Fitzwater's Appeal 191 Fleming's Estate 180 Flickwir's Estate 202 223 Fosbenner's Estate 220 Fossetman v. Elder 2 Foster's Appeal 120 Foster's Estate 46 Foster v. Stewart 483 Fouche's Estate 9 Fow's Estate 102 Few's Appeal 102 Franklin's Admx. v. Phila. 131 Francis' Estate 456 Frazier's Will and Estate (>3 Frew V. Clarke 2 Freyvogle v. Hughes 340 Fross and Loomis' Appeals ISI Frost V. Dingle 43 Fry's Estate 31* Fulton V. Fulton 273, 275, 464, 46s Funston v. Twining 149 Gallagher's Appeal 413 Gangwere's • Estate 42 Gass's Appeal 463 Gernet v. Albert 361 Gemet v. Lynn 324 Gilchrist's Estate 500. 602 Gilmor's Estate 154, S23. 132, 467 Ginder v. Farnum 73 Githen's Estate 382, 436 Golz's Estate 480 Gorgas's Estate 217, 232 Gourley v. Linsenbigler 133 140 Grabill v. Barr II Greenough v. Greenough 65 Greenough v. Small 371 Griffin's Estate 50, 99, 108 ,292 Griffiths V. Cope 295 Grim's Appeal 4.'!0, 182 Gumaar's Estate 195 Gunnison v. Loan Co. 52s Hacker's Appeal 40S Haden v. Hayes 42 Hale's Estate 426 Hamilton's Estate 12, 122 Hamlin v. Thomas 388 Hammond's Estate 409 Hancock's Appeal Hancock v. McAvoy Hand's Estate Harrah's Estate Harrison's Estate Hart V. Stoyer Hartzell's Estate Hauberger v. Root Hays V. Harden Headley v. Kirby Heck V. Clippenger Heilbron's Estate Heiss' Estate Heister v. Yerger Hellerman's Estate Henderson v. Henderson Herb v. Walther Herster v. Herster Hess's Appeal Hibb's Estate Hindman v. Van Dyke Hinton's Estate Hoff' s Appeal Hoflfman's Estate Holbrock's Estate Hollands' Estate HoUingsworth's Appeal Hoopes' Appeal Hoppel's Estate Horner v. McGaughy Howell's Estate Hoysradt v. Gas Co. Huber's Estate Huber v. Wood Humphries' Estate Hunter's Estate Hunter v. Anderson Ihries' Estate Irvin V. Deschamps Irvin V. Patchin Jackman v. Delafield Jacobs' Estate Jeiirie's Estate Jervis v. Ferris Johnson's Appeal Johnson's Estate Johnson v. Kite Jones' Estate Jones V. Hartley Jones V. Jones Jones V. Murphy Jones V. Strong Jones' Will Kane's Estate Kaufman v. Burgert 449 157 60 389 2, 8, 220 460 416 II 83 135 478 48 219* 278 471 389 394, 401 55 61 332 42, 43. 44 196 167 105 157 471 431 501 180 176 421 386 145 5^ 55 449 362 495 73 375 387 454. 498 12, 20* 165 167, 467 179 167 369, 389 418 131 286, 475 86 460 431 268 27s 288 TABLE OF CASES. Keen's Estate 183 Keim's Appeal 242, 244 Kelly V. Kelly 462, 496 Kerlin v. Campbell 295 Key's Estate 475 King's Estate 190 Kings V. Frick 273 Kiseker's Estate 3, 10 Klapp's Estate 452, 454, 461, 471 Knauss' Appeal 103 Knight's Estate 457 Knowlson v. Fleming 4 Knox's Estate 2, 6, 62 Kreamer's Executors 219* Kremer v. Fleming 247 Kreb's Estate 222, 472 Kreb's Appeal 222, 472 Krug's Estate 399 Kunselman v. Stine 246 Kuntzleman's Estate 286, 351, 353 Lambaert's Estate Lancaster Co. Bank's Lancaster v. Flowers Landis v. Scott Langfeld's Estate Lantz V. Boyer Lawrence Estate Leary's Appeal Lee's Estate Leet V. Miller Lennig's Estate Lennig's Appeal Lentz V. Lentz Lepore v. Ass'n Levy's Estate Lewis' Appeal Lewis' Estate Lewis V. Lewis Lewisburg Overseers v. ta Overseers Lines's Estate Lines v. Lines Linn v. Alexander Lipman's Appeal Lippincott's Estate Lisle's Estate Lloyd's Estate Logan's Estate Loomis V. Kellogg Loy V. Kennedy Luce V. Harris Ludlam's Estate Macalester's Estate McAleer's Estate Appeal 411, 412 243, 330 476, 614 438 316 387 332, 407 495 21, 22, 26 262 162'* 162* 259 276 495, 498 457 148, 430 118 Augus- 329 423 4 301 456 482 429 402 54 72 60 48s 167 227 221 McBride v. Smith 322 McCann v. McCann 488 McCarthy's Estate 135, 143 McClure's Appeal 184 McCormick v. McEUigott 308 McCreary v. Bamberger 390, 483 McCune v. Baker McDaniel's Estate McDonald v. Dunbar McFarland's Appeal McKee v. McKinley McKee v. White McKee's Estate McKnighon v. Gas Co. McMasters v. Negley McMasters v. Shellito McNeilledge v. Galbraith McPherson's Appeal Macalester's Estate MacConnell v. Lindsay Magee's Estate Main v. Ryder Major's Estate Malone's Estate Manifold's Appeal Maris's Estate Marshall's Estate Martin's Estate Martin v. Smith May V. Troutman Meisenhelter's Will Mellon's Appeal Menoher's Estate Merrefield's Estate Messmore v. Williamson Messner v. Elliott Metz V. Metz Meyer's Estate Meyers v. Vanderbelt Michener v. Dale Mickley's Appeal Mickley's Estate Miller's Estate Miller v. Miller Minter's Appeal Mitcheson's Estate Moore's Estate Moran's Estate Morgan's Estate Morrison v. Semple Morrison v. Truby Morrow's Appeal Mullen V. McKelvy Mulligan's Estate Murray's Estate Murphy's Estate Myers v. Myers 355 179 463 459 276, 283 98 217 178 253 469, 470 479 227 227 337, 339, 342 417 48, 68 389 134 200 423 379, 355 223* 257 525 20 413 469, 471 475 481 45, =;3 498 224*, 381 58 135, 137, 144 191 212 78, 108, 309 44 456 221'* 208, 231 19s 308 272 323 12 84 224 47, 55, 56 490 467 TABLE OF CASES. 289 SECTION SECTION Myer's Estate 381 Redding v. Rice 281 Reed v. Woodward 58 Neale's Appeal 239 Reeser's Estate 389 Neff's Appeal 24 Reimer's Estate 454, 482 Ness V. Ramsey 300 Reimer v. Reimer 293 Newhard v. Yundt 104 Reutter v. McCall 377 Newlin's Estate 43 Rewalt V. Ulrich 459 Nice's Appeal 283 Rhodes v. Childs 140, 141 Nichol's Estate 81 Richard's Estate 27, 28, 31 Nicholas v. Adams 139 Riley's Estate 123 Ritter's Appeal 4 Oakley v. Gries 226* Rittenhouses' Estate 191, 235 O'Keason's Appeal 408 Robb V. Robb 487 Oliver's Appeal 160 Robert's Appeal 184 Oliver's Estate 477 Robinson's Estate 172, 174 Orcutt's Appeal 424 Roger's Estate 37 O'Rourke v. Sherwin, Testator Rohn V. Odenwelder 416 303 Root's Estate 467 Owen's Estate 363 Rose V. Quick 2 Owen's Petition 131 Rossetter v. Simmons 486 Roth's Appeal 217 Padelford's Estate 207 Royer's Estate 100 Page's Appeal 184 Rudy's Estate 322, 382 Pa. Industrial Home's Appeal 467 Rudy V. Ulrich 48 Palmer's Estate lOI Ruoff's Appeal • 71 Parkhurst v. Harrows 384 Rupp V. Eberly 455 Parthimer's Elstate 142, 14s Rutts' Estate 18 Patterson v. Patterson 49 Patterson v. Schrader 87 Scattergood v. Kirk 51 Patterson's Appeal 211 Schad's Appeal 2, 5 Pearson's Estate 170, 4S0 Scheetz v. Fitzwater 296 Peirce v. Hubbard 313 Schmidth's Estate 454 Pennock's Estate 466 Schuldt V. Herbine 267 Peoples' Savings Bank V. De- Scott' Estate 10 nig 341 Seeds v. Burk 392 Pepper's Estate 23. 25. 355 Seitzinger's Estate Pepper's Will 405 Seybert v. Hibbert 269,283 Phila. V. Masonic Home 493 Shakers v. Ladd 274 448, 460 Phillip's Estate 223, 230 Shantz's Estate 338 Physics' Appeal 283 Sharpless' Estate 363 Pinkerton's Estate 472 Shee y v. Neidhammer 298 Plates' Estate 62, 67 Sheetz's Appeal 460 Potts V. Kline 283, 291 Sheetz's Estate 434 Powell V. Diddle 467 Sheets V. Fitzwater 2^ Price V. Price 494 Shell's Estate 345 Price's Estate 88 Sheridan v. Sheridan 373 Price's Appeal 88 Shirey v. Postlethwaite 268, 451 Pritchett's Estate 2 Showers v. Showers 71 Singerly's Estate 227 Quinn's Estate 336 Sill V. Blaney 372 Silverthorn's Estate 162 Ralston's Estate 443 Sincox's Estate 112 Ralston v. Wain 283 Slegel V. Lauer 294 Ramsey's Estate 116 Smith's Appeal 458, 459, 456 Raudenbach's Appeal 451, 455 Smith's Estate 30, 3I*'"', 50, 222, Ray V. Alexander 304 498 Rea V. Bell 280 Souder's Estate 165 Reek's Appeal 19 448 Spellier's Estate 36 290 TABLE OF CASES. SECTION Sponsler's Appeal 167 State V. Rogers 441 Steinmetz's Estate 343 Stephen's Estate 55 Stewart's Estate 29 Stewart v. Lindermuth 136, 144 Stigers v. Dinsmore 290 Stockham's Estate 140 Stoner v. Wunderlich 310 Stover V. Stover 525 Strawbridge's Estate 498 Strong V. Bass 177 Sturm V. Sawyer 259, 497 Sullivan's Estate 2 Sunday's Estate 10 Swann's Estate 422 235' Tallman's Estate 45, 51 Tarr's Estate 36 Tawney v. Long 43, 54 Tenth Presbyterian Church 209 Thompson v. Kyner Thompson's Estate Thran v. Herzog Tierney's Estate Todd's Will Tolan's Estate Tomlinson's Estate Tozer v. Jackson Trost V. Dingle Turner v. Scott Tyson's Estate 43 286 484 156, 159 12 438 116 2, 7 43 2 228* Utcherson's Appeal Van Dusen's Estate Vernon v. Kirk Vosburg's Will Wahl's Estate Wainwright's Appeal Walker v. Atmore Walls V. Stewart 70, 108 220* 8S. 98 70 468 55 ^V- 180, 181 Walsh's Appeal Walton's Estate Ward's Estate Wasson's Estate Wayne's Estate Waller's Estate Wells V. Tucker Wendt's Estate Wesco's Appeal Wettach v. Horn Whelen v. Phillip White's Estate Whitney's Estate Widdowson's Estate Wikoff's Appeal Wilcox V. Derickson Wilkinson's Estate Wiley's Estate Wilkinson v. Buist Wilson V. Van Leer Wilson V. McKeehan Wineland's Appeal Wingert's Estate Winthrop v. Clinton Wise's Estate Woddrop V. Weed Wolfersberger's Estate Wright's Estate Wusthoff V. Dracourt SECTION 134 40 52 491 347 411 137 150 176 91 189 218, 256 126 52 II, IS 519, 520 171, 498 18 zn, 380 2 459 63 109 348 194, 410 30, 357, 358, 359 179 14, no 486* Yardley v. Cuthbertson 50 Yamall's Appeal 283 Yeakel v. McAtee 150, 151 Yerkes' Estate 167 Yerkes' Appeal 96 Yost's Estate 186 Youndt V. Youndt 121 Young V. Lynch 251 Young V. Weed 360 Zehender's Estate 234 Zeigler v. Eckert 177 Zimmerman v. Zimmerman 97 INDEX References are to the sections. ABATEMENT of legacies, 178*. ACCUMULATION of income, 221*. ACKNOWLEDGMENT of signature, 60. ACTIVE TRUSTS See Trusts. ACTS OF ASSEMBLY See Proof of Wills. 1799, January 16, Fee tail can be barred by deed, 3 Sm. L., 338, 299. 1812, March 31, 5 Sm. L. 259. § I, joint tenancy abolished, 258. 1832, March 15, P. L. 135. § 7, compelling production of will for proof, 80. 1832, March 15, P. L. 135. § 9, commissions to examine witness provided for, 82. 1832, March 15, P. L. 135. § 10, proof of nuncupative wills not allowed until fourteen days after death, 94*. 1832, March 15, P. L. 135. § II, nuncupative will not put in writing after six days can- not be proved after six months, 94. 1832, March 15, P. L. 135. § 12, as to wills proved in another State or country, 92. 1832, March 15, P. L. 135. § 18, providing for letters of administration cum testaraento annexo, 446. 1833, April 8, P. L. 3x5. § I, birth of issue not necessary for curtesy, 250. 1833, April 8, P. L. 249. § I, P. L. 249, as to who may make will of real estate, 32. 1833, April 8, P. L. 249. § 3, as to who may make will of personal estate, 32. 291 292 INDEX References are to the sections. ACTS OF ASSEMBLY— (Continued.) 1833, April 8, P. L. 249. § 4, for appointment of guardian of person by father, 432. 1833, April 8, P. L. 249. § 6, requirements as to making of wills, 57. 1833, April 8, P. L. 249. § 7, providing for nuncupative wills, 94, 17. 1833, April 8, P. L. 249. § 9, devise to pass whole estate, 267, 268. , 1833, April 8, P. L. 249. § 10, after acquired property to pass by a general devise, 240. 1833, April 8, P. L. 249. § 12, preventing devises and legacies to issue from lapsing, 187, 214, 230. 1833, April 8, P. L. 249. § 13, as to revocation of wills of real estate, 113. 1833, April 8, P. L. 249. § 14, as to revocation of wills of personal estate, 114. 1833, April 8, P. L. 249. § IS, revocation of will of man by marriage and birth of issue, 125- 1833, April 8, P. L. 249. § II, a devise or bequest by husband in lieu of dower, 248. 1833, April 8, P. L. 249. § 16, revocation of will of woman by marriage, 128. 1833, April 8, P. L. 250. § 17, act of April 8, 1833, not to apply to non-residents, 129. 1834, February 24, P. L. 70. § 12, when power not given to any person executor may sell, 393- 1834, February 24, P. L. 70. § 38, the time of payment of legacies fixed, 201. 1834, February 24, P. L. 70. § 49, security to protect remainders, 218. 1834, February 24, P. L. 70. §§ 59, 60 and 61, orphans' court can compel pay of charges, 197. 1838, April 16, P. L. 689. § I, provision for a general partner in a special partnership bequeathing his interest, 526. 1838, April 16, P. L. 689. § I, disposing of special partner's interest in case of death under act 1838, 527. 1842, July 27, P. L. 436. § 2, attachment of legacies, 219. INDEX 293 References are to the sections. ACTS OF ASSEMBLY— (Continued.) 1844, May 6, P. L. 565. § 2, preventing devises and legacies to brothers and sisters from lapsing, 215. 1848, January 27, P. L. 16. § I, will may be signed by a mark, 64. 1853, February 23, P. L. 98. § I, property may be set apart for payment of legacies charged, 199. 1853, April 18, P. L. 503. § 2, sale by order of court when time not arrived for exercise of power, 199. 185s, April 7, P. L. 368. § 1, estate tail converted into fee simple, 300. 1855, April 26, P. L. 328. § 10, religious and charitable gifts prevented from failure, 209. 1855, April 26, P. L. 238. § II, wills for charitable and religious use to be made one month before death, 206. i8ss, May 4, P. L. 430. § S, husband's rights to deceased wife's estate lost by deser- tion, 256, S09. I8SS, May 4, P. L. 430. § 6, father deprived of right to appoint testamentary guar- dian by desertion, 433. 1861, May I, P. L. 420. §§ I and 2, devisee may pay legacies charged into court, 198. 1869, April 17, P. L. 70. § I, legatees of contingent interests may have accounting and security, 188, 210. 1871, May 17, P. L. 269. §1, security to protect remainders, 218. 1879, June 4, P. L. 88. § I, time of taking effect of wills as to real estate, 239. 1879, June 4, P. L. general devise an exercise of a power of appointment, 406. 1881, June 10, P. L. 96. § 2, when mother testamentary guardian may appoint succes- sor by will, 435. 1881, June 10, P. L. 96. § I, when a mother who leaves an estate may appoint a testa- mentary guardian, 434. 188s, June 25, P. L. 182. providing for death of limited partner under act 1874, S28. 1887, May 6, P. L. 79- § I, collateral inheritance tax law, 419. 294 INDEX References are to the sections. ACTS OF ASSEMBLY— (Continued.) 1887, May 6, P. L. 79. § 3, collateral inheritance tax on future interests, 420. 1887, June 6, P. L. 359. §§ I, 2 and 3, providing security and for caveat, 79. 1889, May 9, P. L. 173. § I, religious and charitable gifts preserved from failure, 209. 1891, May 26, P. L. 119. § I, provisions for burial lots a charitable use, 156. 1893, June 8, P. L. 344. § 5, relating to wills of married women, 32. 189s, May 23, P. L. 114. § I, religious and charitable gifts, preserved from failure, 209. 1895, June 25, P. L. 305. § I, proof of will conclusive to realty after three years, 91. 1897, July 9, P. L. 213. § I, construction of words "dying without issue," 305, 306. § 2, confined act does not apply to wills before act, 305, 306. ADEEM definition of, 221. ADMINISTRATOR, CUM TESTAMENTO ANNEXO provision for appointment, 446. ADVANCEMENTS definition of, 221. liability, when legatees take by representation, 212. AMONG definition of, 497. See Practical Suggestions. ANNUITIES remarks on, 213. See Practical Suggestions. APPEAL TO COMMON PLEAS ^ See Proofs of Wills. APPOINTMENT See Powers of Appointment. See Executors. See Testamentary Guardians. APPORTIONMENT of periodical payments, 204. of annual sums, 205. ATTACHMENT of legacies, 219. INDEX 295 References are to the sections. BLIND PERSONS wills by, 33. BROTHERS AND SISTERS definition of, 485. , BURIAL LOTS provisions as to, 155. a charitable use, 156. right to, may be an interest in real estate, 157. an incorporeal hereditament, 157*. BUSINESS trust for, 357. to settle and close by will, S14. bequest of directly to legatee, 515. CAVEAT See Proof of Wills. CHARGES of legacies on land, 193. on residuary real estate depending on intent, 194. payments to be made by devisees, indication of charges, 195. the intention to charge must be on the face of will, 408. words used in creating charges, 409. a mere direction to pay not a charge, 410. devise of land at a price a charge, 411. lien of, superior to judgments against devisees, 412. implied by a devise of the residue, 413. devisee personally liable for, 414. releases of by trustees should be made for a consideration, 415. effect of sheriff's sale upon, 416. when personal property must be exhausted before claiming by, 417. apportionment of legacies charged in case of sheriff's sale, 418. orphans' court can compel payment of, 197. devisees may pay legacies charged into court, 198. property may be set apart for payment of, 199. CHARITIES definition of, 207. efifect of failure of charitable bequests, 208. religious and charitable gifts preserved from failure of objects and other events, 209. will for charitable and religious uses to be made one month before death, 206 and 238*. "CHILDREN" definition of, 476. 296 INDEX References are to the sections. CODICIL definition of, 21. annexation to will not necessary, 22. with will, one instrument, 23. republication of a will by, 24. probate of, 25. effect of, on a prior codicil, 26. when inconsistent with will, 27. a residuary gift by, revokes a gift of residue by will, 28. destruction of, 29. effect of unsigned, on will, 30. reference in, to a will, a reference to prior codicil, 31. in substitution of lapsed contingent legacy, 31*. when revocation of will does not revoke, 31** form for, where additional legacies are given, 651. revoking a legacy given by a prior codicil, 652. revoking a devise of real estate, 653. where several legacies are revoked or decreased, 654. for a child born after date of will, 655. in declaration for feigned issue, 654. COLLATERAL INHERITANCE TAX. the law relating to, 419. taxation of future interests for, 420. meaning of exemption of estates "less than two hundred and fifty dollars," 421. estate not liable for, when testator not seized or possessed, 422. when a deed intended to take effect after death of grantor, property liable for, 423. vjfhen legacies given by non-residents liable for, 424. ; vhen land in Pennsylvania of non-residents converted not liable to, 425- land in another state not liable for, 426. tax on annual net sums to be paid clear of tax, 427. charities liable to, 428. on realty to be paid by devisees not executors, 429. non-resident personalty having situs in Pennsylvania not liable to, 430. COMMENCEMENT OF WILLS explanations and suggestions as to, 153. CONDITIONS estates on conditions, 328. kind of, 329. * provision in restraint of marriage valid in case of a limitation over, 330. INDEX 297 References are to the sections. CONSTRUCTION rules for the construction of wills, 448 to 474. CONTINGENT REMAINDERS See Remainders. COSTS how costs for the trial of an issue to be paid, 105. security for in appeal to Orphans' Court, 107. caveator to give security for, 79. CURTESY definition, 249. in Pennsylvania birth of issue not necessary, 250. a right to seisin merely is sufficient, 250*. no right in wife's remainder, 251. in wife's reversion if prior estate continues, 252. distinction between estate terminated by condition or limitation as to, 253. in case of wife's fee subject to trust for separate use, 254. husband is insolvent, 255. loss of husband's rights to a deceased wife's estate by desertion, 256. DEAF AND DUMB PERSONS wills by, 33. DEBTS OF TESTATOR direction as to payment, 160. exoneration of personal estate from payment, 161. lien of, by a charge to pay them, 162. liability to pay mortgage debts of testator, 162*. trust to pay, 352. DECLARATION OF TRUST See Gifts by Declaration of Trust. DEFINITION OF WORDS words defined (See Legal Definition of Words), 475 to soi. DEMONSTRATIVE LEGACY definition, 180. diflference between specific, 181. liability to abate, 182. DESERTION loss of husband's rights to wife's estate by desertion, 509. DEVISE definition of, 237. what estates are devisable, 238. time of taking effect as to real estate, 239. after acquired property to pass by a general devise, 24O; ' 298 INDEX References are to the sections. DEVISE— (Continued.) form for devise of an estate in fee simple, 586. of a life estate and remainder, 587. to two persons jointly for life and fee to survivor, 588. to man and wife as tenants by entireties, 589. to tenants in common, 590. of a contingent remainder, spi- of a vested remainder, 592. subject to the payment of a mortgage, 593. with right to have mortgage paid from estate, 594. of land charged with payments, 595. of ground rent in fee, 596. for life, 597. See Dower; Curtesy; Joint Tenant; Tenants in Common; Tenancy by Entieeiies; Estate for Life; Estates; Fee Simple; Estates Tail; Remainders; Executory Devises; Acts of Assembly. DONATIO MORTIS CAUSA definition of, 133. the subject of, 134. must not be of the whole estate, 135. delivery in case of, 136. delivery may be made to one for another, 137. delivery must be during a last sickness, 138. extremity of sickness not requisite, 139. must be in view of approaching death, 140. revocable by donor, 141. takes effect presently, 142. proof necessary to prove, 143. in case assets not suilicient to pay debts, 144. in case of intent to defeat widow's right, 145. DOWER definition of, 245. widow's rights under intestate law in lieu of, 246. merger of charge for dower in the fee, 247. a devise or bequest by husband to wife in lieu of if she accepts, 248. ELECTION of husband to take against wife's will, 507. of widow to take against husband's will, 507. ESTATE definition of, 481. ESTATE IN FEE SIMPLE See Fee Simple Estates. INDEX 299 References are to the sections. ESTATES TAIL the origin and nature of, 297. devise to for life and after his death to his children or legal heirs. a fee tail, 298. barred by deed. 299. conversion into fee simple by act of 1855, 300. contingent interests after, cut off by deed, 301. descend according to common law, 302. ESTATE FOR LIFE definition of, 241. EXECUTION OF WILLS requirements for by act of assembly, 57. when made by writing, 58. type-written wills by act of assembly, 59. no special acknowledgment of testator necessary in, 60. reading of to testator, 61. how the testator's name to be signed, 62. the signing of, at the end thereof, 63. may be signed by a mark, 64. act of 1848 has no retroactive force, 65. a cross before and death after. Act of 1848, 66. mark must be made with intention to execute, 67. mark may be affixed though testator able to write, 68. evidence necessary to prove mark, 69. signing by another by express direction, 70. when testator cannot sign from extremity and directs another to sign, 71. presumption of continuing inability to sign name, 72. not necessary to have subscribing witness to signatures, 73. testimony of subscribing witnesses, 74. disability after giving instructions for will, 75. propriety of having witnesses who can be procured to prove, y6. EXECUTORY DEVISES definition, 326. distinction between, and contingent remainder, 327. EXECUTOR definition of, 437. has no authority to take charge of real estate, 438. limited or conditional executorships, 439. different ways of appointing, 440. case of orphans' court appointing, 441. there may be an implied appointment of, 442. renunciation of, 443. appointing a successor of, 444. 300 INDEX References are to the sections. EXECUTOR— ( Continued. ) foreign, 445. letters of administration cum testamento annexo, 446. practical suggestions as to the appointment of, 447. EXEMPTION LAW FOR WIDOW provisions of law, 502. FAMILY definition of, 478. FATHERS AND MOTHERS provisions for in wills, 513. FEE SIMPLE ESTATE what are, 266. devise will pass the whole estate if none given over under act of 1833, 267. construction of the act of 1833, 268. by giving to heirs of devisee, 269. in case a devisee for life dies without leaving family, 270. restraint against alienation void in case of, 271. the word heirs not necessary to pass, 272. devise over after a fee intended to prevent a lapse, 273. a devise of, restrained by subsequent expression, 274. condition against devisee's debts void in case of a devise of, 275. devise to heirs when persons stand in that relation, 276. devise "to my legal heir" for life and remainder to his heirs, 277. devise of in case of condition to pay taxes, 278. devise to son for life and remainder to children and default of chil- dren to his heirs, 279. devise of with direction to convey to another, 280. defeasible fee in case of a devise to wife as long as she shall remain a widow, 281. devise of, to a wife notwithstanding devise of part undisposed of by wife, 282. estate, by use of technical language, 283. FORMS commencement of wills, 536. directions as to funeral expenses, 537. masses, 538. place of burial, 539. monuments, 540. for the payment of debts, S4i- for deduction of indebtedness of legatees, 542. release of legatee's indebtedness, 543. debt of devisee charged on real estate, S44' that legacy not in satisfaction of debt of testator, 545. INDEX 301 References are to the sections. FORMS— ( Continued. ) that legacy to be in satisfaction of debt of testator, 546. for advancements, 547, 548. for bequests of furniture, 549, 550, S5i, 552, 553, 554. direction of office furniture to be sold, 555. for bequests of a steam yacht, interest in a vessel, stocks, bonds, money in bank, book debts, money lent, promissory notes, money due on contract, life insurance policy, property devised and be- queathed, a judgment, a bond and mortgage, a lease, and fire poli- cies, 556, 557, 558, 559, s6o, 561, 562, 563, 564, 565, 566, 567, S68, S70, 571, 572, 573 and 574- provision in case a specific legacy shall be paid off or disposed of, 569. for pecuniary legacies, 575. providing that legacies shall not be charged on residuary real estate, 576. bequest of an annuity, 577. legacies to clerks, servants, and charities, 578, 579, 580, 581. provisions that legacies shall have priority to be paid clear of tax, and in case legatee dies, 582, 583, 584. provisions for a demonstrative legacy, 585. See "Devise" for various forms for devises. brief will giving whole estate, 598. direction for conversion into cash for distribution, 599. brief will giving the whole estate for life with a remainder, 600. providing for widows, 601, 602, 603, 604, 605, 606, 607, 608. husband, 609. children, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621. for preserving unimproved land for future sale, avoiding partition, devising according to survey, disposing of estate without conver- sion, to preserve stock from sale and for management and pro- viding for calls on stock, 622, 623, 624, 625, 626, 627, 628. provisions for disposing of a business, 629, 630, 631, 632, 633. disposing of farms, 634, 635. partnership interests, 636, 637, 638, 638*, 639, 640. for a double will and agreement for double will, 641, 642. in case of an agreement to sell real estate, 643. as to powers of sale, 644, 645, 646, 647. for a succession of trustees, 648. as to investments, 649. for exercise of a power of appointment, 650. for codicils, 651, 652, 653, 654, 655, 656. for caveats, 657, 658. contesting wills, 658, 659, 660, 661, 662, 663, 664, 665. FRAUD wills obtained by, 56. 302 INDEX References are to the sections. FUNERAL EXPENSES provision as to, 154. GIFTS INTER VIVOS definition of, 146. delivery of, 147. not requisite when impossible, 148. there may be, with a reservation, 149. no presumption of unfairness by, 150. evidence relating to, 151. GIFTS BY A DECLARATION OF TRUST explanation of, 152. See Donatio causa mortis. HAWKIN'S rules for construction of wills, 473. HEIRS definition of, 475. HOUSEHOLD FURNITURE definition of, 501. HUSBAND will in case a woman dies leaving a, 506. right of election by against wife's will, 507. protection of, against his creditors, 508. loss of right of, by desertion, 509. when takes whole estate in default of heirs, 510. form giving an estate in trust for, protecting the same from credi- tors, 609. INFANTS cannot make will, 32. See Testamentary Guardians. INTEREST on legacies, 174, 175. INTESTATE LAW provisions for a widow under, 502. for a husband under, 506. for fathers and mothers under, jrj. for children and issue under, 511. INVESTMENTS the necessity and advantages of providing for, 535. form for authority to retain and hold illegal, 649. ISSUE definition of, 303, 477. devise in fee with a devise over in case of dying without issue, 304. INDEX 303 References are to the sections. ISSUE— (Continued.) construction of words "dying without issue, &c.," by act of 1897, 305. application of the act of 1897, 306. importance of act as to future wills, 307. dying without issue during life time of widow, 308. limitation over to persons in being, a definite failure of issue, 310. as to the words "dying without leaving issue," intention must gov- ern, 311. the words "and if none" mean an indefinite failure of issue, 312. children meant in case of a devise over in case of death without issue or issues of children, 313. devise to issue of a deceased child may mean to children, 314. when the words "dying without heirs" mean dying without issue, 315. ISSUE, d. v. n. See Proof of Wills. JARMAN'S RULES FOR CONSTRUCTION rules, 474. JOINT TENANCY definition of. 257. act of 1812 abolishing, 258. survivorship may be created by will notwithstanding act of 1812, 259. "LAND PROPERTY" definition of, 483. L.vPSED DEVISES to be included in residue, 216. prevention of devises to children and issue from lapsing, 214. brothers and sisters from lapsing, 215. LEGACIES prevention of legacies to children and issue from lapsing, 214. of legacies to brothers and sisters from lapsing, 215. where lapsed, fall into residue, 217. legatee for limited period to give security to protect those in re- mainder, 218. attachment of, 219. a legacy to a class without individuating members, 220. effect of absolute gift payable at discretion of trustee, 220*. absolute gift followed by qualifying trust, 221. accumulation of income to carry out trust, 221*. where the word money may include bonds, 222. when a legacy to a child abates pro rata with other legacies, 222*. when the gift of the income of fund takes effect from death of tes- tator, 223. no right of residuary l^atee to income before vesting, 223*. 304 INDEX References are to the sections. LEGACIES— (Continued.) residuary legatee can only take what remains after debts and general legacies are paid, 224. interest on legacy after death of prior taker commences at that time, 224*. a lapsed share of the residue goes to the next of kin, 225. bequests of maintenance of son, 225*. for a particular purpose, 226. coupons immature at death of testator pass with bequest of bonds, 226 legacy given on a condition subsequent vests immediately, 227. vested interest after successive life estates, 227*. gift over in default of exercise of a power of appointment, 228. gift for life with power of consumption, 228. disinheriting heirs, 229. legacies to adopted children will lapse, 230. specific legacies not liable to abate to pay costs of administration and funeral expenses, 231. lapse of a legacy contained in a residuary clause, 232. when legacy payable at discretion of executor payable at his death, 233. legatees bond required for remainderman, 234. distribution to legatee dying intestate in other state, 235. when estate vested in children who shall be then living, 236. specific, 163. of money may be specific, 164. of moneys due by legatee specific, 165. definition of articles of personal use, 166. of stock, when specific, 167. of amounts of bonds of a company not specific, 168. when of proceeds of real estate specific, 169. of money not specific, when not set apart, 170. specific, of money in bank, 171. a legatee of specific, entitled to possession upon death of testator, 172. specific, annulled by a sale by testator, 173. interest on specific, 174. pecuniary, 175. to creditors, 176. to debtors, 177. abatement of, 178. to widows preferred to other legacies, 179. demonstrative, 180. distinction between demonstrative and specific legacies as to ademp- tion, 181. liability of demonstrative, to abate, 182. when, legacies with expression as to use and application absolute, 183. when vested or contingent, 184. in case of doubt, the law favors vesting of, 185. INDEX 305 References are to the sections. LEGACIES— ( Continued. ) to children, to be paid when of age, vested, 186. when to grand-children after a life estate, vested, 187. protection of contingent interests of, 188. assignment of contingent, 189. with conditions, 190. over in case of death in lifetime of testator, 191. to widow for life without limitation over charged on land, 192. See Charges. personal estate primary fund for payment of, ig6. by will and codicil to same legatee independent, 20a. the time of payment of, 201. interest on, 202. on annual payments, 202*. specific sum bequeathed in trust, 203. apportionment of periodical payments, 204. annual sums, 205. for charitable and religious uses to be made one month before death, 206. legatees of contingent interests may have account and security, 210. LEGAL DEFINITION OF WORDS "Heirs," "Children," "Issue," "Family," "Relations," "Personal ' Es- tate," "Estate," "Personal Effects," "Land Property," "Then Liv- ing," "Brothers and Sisters," "Property," "Unimproved Real Es- tate," "Next Nearest Blood Relations," "Legal Representatives," "Benevolence," "Last Sickness," "Net Income," "Charity," "Domi- cile," "Between," "Or," "Among," "Money," "Profits," "Cash," "Household Furniture," 475 to 501. LIFE ESTATES definition, 241. where devise for life, remainder to children when none, 242. devise for life remainder to children, 243. the words "descend to their children" after life estate to testator's children do not give them a fee, ■ 244. LIMITED PARTNERSHIP See Partnership. MASSES provisions for, 159. MONEY definition of, 498. MONUMENTS provisions as to, 158. MOTHERS provisions for in wills, 513. 20 306 INDEX References are to the sections. NUNCUPATIVE WILLS common law definition of, i6. provisions of act of assembly for, 17. act as to, must be fully and strictly complied with, 18. must be made in extremity, 19. persons present must be asked to bear witness as to the making of, 20. PAROL EVIDENCE when admissible to explain will, 467. PARTITION avoiding by will, 533. modes of dividing real estate to avoid, 534. PARTNERSHIP provision in will for continuing, 517. liability of a deceased partner's estate in case of continuance of firm's business, 518. liability of the executor of deceased partner if partnership continues 519- in case a surviving partner forms a new partnership, 520. a sale of a deceased partner's interest, 521. bequest of partnership interest to a son, 522. surviving partner must consent to partnership with legatee of in- terest, 523. preventing liability of decedent's estate to pay whole firm's indebted- ness, 524. wills in relation to partnership real estate, 525. provision for a general partner in a special partnership bequeathing his interest under act of 1838, 526. disposing of special partner's interest in case of death under act of 1838, 527. case of death of limited partner under act of 1874, 528. form for bequest of the interest of a testator in a partnership to son, 636. provision as to settling a partnership at dissolution, 637. bequest of an interest of a special partner under act of 1838, 638. ordering executor to continue the interest of a special partner under act of 1838, 638*. bequest of a general partner in a partnership under act ot 1838, 639. an interest in a limited partnership under act of 1874, 640. PERPETUITIES rule against, 331. how modified by statutes, 332. no restraint upon alienation when interest of devisee vested, 333. INDEX 307 References are to the sections. PERSONAL EFFECTS definition of, 482. PERSONAL ESTATE definition of, 481. POWERS OF APPOINTMENT the exercise of. 403. where appointment void for want of a seal, 404. what is a seal in case of exercise of, 405. when a general devise an exercise of a power of appointment, 406. as to real estate in Pennsylvania governed by the laws of that state, 407. form for exercise of, 650. POWERS OF SALE to sell real estate, 368. distinction between discretionary and peremptory, 369. when naked land descends to heirs, 370. no conversion by, if devisees may sell by agreement and divide the pro- ceeds, 371. no conversion by, with consent of brothers and sisters, 372. when discretionary, do not prevent partition, 373. conversion by, may be expressed or implied, 374. when directed upon contingency, no conversion, 375. in case of conversion a distributee may assign share of money, 376. without limit void under rule against perpetuities, ZTJ. when estate vested may be exercised in a reasonable time, 378. all parties interested may recognize continuance of, 379. a power without limit limited to life-time of widow, 380. a discretion to sell may exist during lifetime of trustee, 381. when purpose of accomplished, cease, 382. do not end if one of different purposes fail, 383. to pay debts, void if no debts, 384. to pay debts, cease upon payment, 385. power of trustee appointed by court at testator's domicile to sell, 386. when, can be exercised by an administrator, c. t. a., 387. removal of limitation of, by consent of tenant for life, 368. averting the exercise of, by election, 369. powers to mortgage by, 390. liability for application of purchase money, 391. purchaser not liable to see purchase money applied to pay general debts under absolute, 392. when not given to any person, executor may sell, 393. discretionary, should be exercised in time limited for sale, 394. sale when time not arrived for exercise, 395. failure to exercise, at times fixed, 396. 308 INDEX References are to the sections. POWERS OF SALE— (Continued.) orphans' court will control the exercise of discretionary; 397. may be implied from purpose of will, 398. when implied, court cannot order executor to sell, 399. a sale by children in place of executor by, 400. should locate the property to be sold, 401. dispensing with, by family settlement, 402. PROOF OF WILLS caveat to prevent proof of, TJ. the office of the caveat to prevent proof of, 78. caveator to give security for costs, 79. compelling production of will for proof, 80. register merely issues citation, 81. commission may issue to prove, 82. when witnesses are dead or out of reach of process, 83. each witness must testify to all essentials of execution, 84. when witness has forgotten the signing, 85. circumstances may supply want of one witness, 86. legatees may be witnesses to, 87. proof of foreign will in case of personal estate, 88. proof of foreign wills in case of real estate in Pennsylvania, 89. proof of a will for property out of the state, 90. probate or refusal to probate conclusive as to realty after three years 91. proved in another state or country, 92. proof of, lost, 93. nuncupative cannot be proved after six months unless put in writing within six days, 94. probate of nuncupative wills not allowed until fourteen days after death, 94*. election not to contest by taking under the will, 95. executor not bound to defend his testator's will, 96. presumption of competency, 97. in case of fraud or undue influence proof of knowledge of contents required, 98. alleged fraud or undue influence may be confined to part of will, 99. right to an issue for a jury trial, 100. parties to issue, loi. refusing an issue by register, 102. rule governing an award of issue, d. v. n,, 103. on trial the question as to capacity is for the jury, 104. how costs for the trial of an issue to be paid, 105. appeal from decision of register of wills to common pleas, 106. security for costs in appeal to orphans' court, 107. all persons interested should be cited, 108. INDEX 309 References are to the sections. PROOF OF WILLS— (Continued.) parties in interest are only those who would be affected, 109. requisite for an appeal from register for undue influence, no. on appeal will and codicils are considered as one instiument, iii. proceedings on appeal from register de novo, 112. QUALIFIED OR BASE FEES definition, 294. examples of, 295. upon determination property reverts, 296. RELATIONS. definition of, 479. REMAINDERS definition, 316. vested or contingent, 317. the owner of a vested interest treated as in possession, 318. contingent, must await the natural determination of particular es- tate, 319. devise to unborn children contingent, 320. avoiding intestacy in case contingent interest should not take effect, 321. estate contingent when persons must be living at a certain time, 322. times in which a contingency may happen, 323. vested, to be in afterbom children, 324. gifts to brothers and sisters after death of husband — if dead to their children, vested, 325. trust to support, 351. REPUBLICATION OF WILLS definition of, 130. in Pennsylvania may be by parol, 131. when wills speak of date of, 132. REVOCATION OF WILLS of real estate by act of 1833, 113. of personal estate by act of 1833, 114. not necessary that obliteration or physical destruction in case of, be complete, 115. may be partial by lead pencil or cutting, 116. interlineation not an obliteration, 117. unsigned writing on margin not a, 116. destruction of will by another must be by express direction, 119. presumption of destruction, 120. evidence of an intent to cancel, 121. may depend upon contingencies, 122. effect of revoking a residuary devise, 123. the best way of, 124. 3IO INDEX References are to the sections. REVOCATION OF WILLS— (Continued.) by subsequent marriage and birth of issue, 125. extent of, by marriage and birth of child, 126. prevention of, in case of a birth of child, 127. of single woman by marriage, 128. act not to apply to bequests of personalty by non-residents, 129. RULE IN SHELLY'S CASE ,,/ -^i i - •.' - /i ' • ; definition of, 284. f{ overthrows life estate contrary to intention, 285.', remainder must be to whole line of heirs, 286. when limitation to heirs mediate, 287. the words heirs not necessary, 288. estates must be of the same quality, 289. a direction to sell and divide among heirs does not prevent operation 290. SEPARATE USE TRUSTS See Trusts for the Separate use of a Married Woman. SPECIAL PARTNERSHIP See Partnership. SPENDTHRIFT TRUST definition of, 346. there can be, for a female, 347. not necessary that spendthrift trust should contain specific words, 348. a legacy before payment by executor can be protected by, 349. trustees paying principal to cestui que trust of, 350. separate use trust for unmarried women upheld as, 345. TENANCY BY ENTIRETIES definition, 260. may exist as to personal estate, 261. cannot be encumbered without mutual consent, 262. not destroyed by act of 1812 and married women's acts, 263. rights to mortgage, 264. TENANCY IN COMMON definition, 265. TESTAMENTARY GUARDIAN definition, 431. when a mother who leaves an estate may appoint, 434. when mother, may appoint a successor, 435. appointed in another state, 436. father in case of desertion deprived of right to appoint, 433. direction by act of assembly for the appointment of guardians of oersons, 432. INDEX 311 References are to the sections. THEN LIVING definition of, 484. TOMBSTONES provisions as to, 158. TRUSTS to support remainders, 351. to pay debts, 332. active, 353. to divide an estate, 354. dry. 355- for estates of minor children, 356. for business, 357 and 516. termination of, by agreement of parties, 363. waiver of, 364. if mere direction to convey title will vest without conveyance, 365. See Spendthrift Trust. can only be for a woman married or in contemplation of marriage 336. See Trustees. TRUSTS FOR THE SEPARATE USE OF MARRIED WOMEN what are, 335. upheld without active duties imposed, 337. the income of, not liable for the debts, contracts, engagements or as- signments of wife, 338. a fee simple estate with trust for separate use, 339. husband's curtesy in fee of wife in case of, 340. death or divorce of husband in case of full ownership with, 341. woman cannot sell or mortgage property held for her separate use, 342. woman cannot devise in case of separate use trust, 343. protection of married woman's interest during lifetime, 344. TRUSTEES personal liability of, for debts of trust business, 358. to carry on business cannot make an assignment, 359. cannot confess a judgment, 360. authorized to invest in real estate may give purchase money mort- gage, 361. power of surviving, to sell, 362. provisions for the appointment of, 366. can only invest in legal investments, 367. UNDUE INFLUENCE definition of, 43. mere persuasion not, 44. in case of family and social relations, 45. 212 INDEX References are to the sections. UNDUE INFLUENCE— (Continued.) no presumption of, from residence, 46. in case of unequal division among children, 47. by unlawful relations, 48. contents of will showing, 49. those having confidential relations may have to show testator's capacity in case of charge of, 50. why may stand in confidential relations, 51. whole will not necessarily void by, 52. presumption of the absence of, 53. requisite proof of, 54. must exist at time of making will, 55. VESTED REMAINDERS See Remainders. WHO MAY MAKE A WILL by acts of 1833 and 1893, 32. in case of deaf, dumb or blind persons, 33. legal definition of sound mind to make a, 34. loss of memory to make, 35. in case of old or sick persons, 36. in case of a sound mind with hallucinations, 37. disability to make from insanity, 38. in case of partial insanity, 39. during delirium, 40. wills made by drunkards, 41. wills made during lucid intervals, 42. WILLS definition of, i. may be in any form, 2. when documents in the form of deeds are, 3. when deeds with reserved benefits are not, 4. by assignment of life insurance, 5. in the form of letters, 6. a paper expressing a gift held to be a will, 7. by endorsements, 8. an invalid nuncupative will held to be a written will, 9. when extrinsic evidence will be received to show testairentary in- tent, 10. papers referred to in, 11. to take effect upon a contingency before death, 12. double, 13. contracts to make, 14. separate, 15. See Who May Make Wilu See Execution of Wills. INDEX 313 References are to the sections. WILLS— (Continued.) See Proof of Wills. See Nuncupative Wills. See Construction. WIDOW provisions for under the intestate law, 502. provisions for by husband's will, 503. providing for by means of a trust, 563*. purchasing an annuity for, 504. release of right of, by marriage settlement, 505. devise of a farm to, in fee simple, 530. devise of a farm to, for a certain period, 531. form of will, giving whole estate to, for life with remainder to chil- dren, 601. form for will, giving an estate in trust for, with a provision in case she marries again, 602. form for will giving household goods, dwelling house. Sec, to, 603. form for charge on real estate for, 604. form for a charge on real estate to a trustee for, 605. form, charges for, on land separately devised, 606. form for trust for, for life, with power to will, 607. form for payment to, for household expenses until settlement of es- tate, 608. form for devise of farm to, for life, 634. form for devise of farm in trust for, 635. WITNESSES See Proof of Wills. WORDS definitions of, 475 to 50T.