dnrufU 2Iam ^rljnnl 2Iibratg Cornell University Library KF 755.A94 V.1 Commentaries on the law of wills lembrac 3 1924 018 846 349 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/cu31924018846349 COMMENTARIES ON THE LAW OF WILLS EMBEACING EXECUTION, INTERPRETATION AND ADMINISTRATION INCLUDING THOSE EULES OF HEAL PROPERT"? AND PEINCIPLES OF EQUITY WHICH AFFECT TESTAMENTARY DISPOSITIONS, WITH FULL REFERENCES TO AMERICAN AND ENGLISH STATUTES AND DECISIONS, AND ALSO AN AP- PENDIX CONTAINING FORMS AND PRECE- DENTS, AND THE LEADING WILLS ACTS. BY JOHN E. ALEXANDER, OF THE SANTTJlNCISCO BAR. IN THREE VOLUMES. VOLUME ONE. SAN FJIAN CISCO, CALIFORNIA. BENDER-MOSS CO. 1917. COPYRIGHT, 1917, BY JOHN E, ALEXAISTDER. Williams Printing Company Indephndhnt Pressroom PREFACE. The object of this work is to give a statement of the underlying principles governing the law of wills, noting the various 'changes which have taken place, and bring- ing the subject down to date. Although in the past there have been great expositions of the law of wills, it is because the law has been and is ever changing that the author deems a further work, containing the latest devel- opments, will be of value to the profession. The power of testamentary disposition is not a funda- mental right, but depends upon statute, the rules of intestate succession being the more natural. The develop- ment of the power of testamentary disposition was largely halted by feudalism, with its demand of military service and right of primogeniture. The doctrine of uses and the Statute of Uses left their impress. Then the Statute of Wills, and the statute which followed and explained it, enacted during the reign of Henry VIII; the Statute of Frauds, which dates from the time of Charles II, and the Statute of Wills passed in the first year of the reign of Queen Victoria, among other enact- ments stand out as landmarks. In the United States we follow the common law of England. Our statutes relative to wills may be traced back to the laws of Eng- land, with such modifications as have appealed to the minds of the various legislatures. The law of wills is a matter of development; the rules of today are the out- growth of the rules of the past, modified by changed con- ditions. But in many instances we must hark back to the very early decisions, as for instance the Supreme Court of California very recently divided as to the meaning (m) IV PREFACE. of the statute of that state which was founded originally upon a section of the Statute of Frauds, and regarding which modern precedents were lacking. The author has attempted to set forth the principles and rules under and by which wills were first governed, to trace their changes, to explain their development, and to state those today governing. And since the present rules have evolved from those of the past, it is hoped that the portions of this work dealing with very early matters may prove not only of interest, but of actual benefit; and since the statutory law in the United States is based largely upon that of England, the statutes and decisions of England have been given equal prominence with those of the United States. It will be found that different rules prevail in different jurisdictions, for statutory or other reasons. The author has sought to note such differences and give the reasons therefor. The execution of a will and the disposition of property thereunder may depend, according to the nature of the property and the domicile of the testator, upon the laws of many jurisdictions. For this reason, and that the work may be useful to all, English decisions have been included with those of these United States. The subject is divided into three natural divisions — execution, interpretation, and administration — each being treated in a separate volume. An appendix containing forms and precedents has been added for the convenience of those desiring ready reference, also the leading wills acts for the benefit of those who may not have ready access to the same, and for use in connection with the forms and adjudicated cases. San Feancisco, California, ^^^^ ^- Aiexandee. October 1st, 1917. Table of Contents of Volume One. CHAPTEE I OKIGIN AND DEVELOPMENT OF THE LAW OF WILLS. Sec. Page. 1. Nature of the right to make a will 2 2. Ancient conception of testamentary power 2 3. Ancient purpose of wills 4 4. Creation of the true idea of wills 4 5. Law of the Twelve Tables. Eules under Justinian 5 6. Influence of feudalism 7 7. Early rules in England 7 8. Effect of military tenure in England 8 9. Eight to bequeath personal property early recognized 9 10. Early distinctions between deeds and devises 10 11. Doctrine of Uses; its introduction and purpose 10 12. Effect of the doctrine of Uses 12 13. Statute of Uses ; its purpose 13 14. Statute of Uses; its effect 14 15. Statute of Wills enacted under Henry VIII 15 16. Statutes of Uses, and of Wills as affecting the construction of wills 17 17. Statute of Frauds ; its purpose 19 18. Testaments of chattels under the Statute of Frauds 20 19. Statute of Wills enacted under Queen Victoria 20 20. Military tenure never recognized in the United States 21 21. Testamentary disposition a statutory power 22 CHAPTEE n. THE NATITEE OP WILLS AND DEFINITIONS OF TERMS. 22. Definition of the term "will" 23 23. Definition of the term "codicil" 25 24. Common use of the term "last will and testament " 25 25. Early conception of the term ' ' testament " 26 26. Alienation of real and personal property governed by different rules 27 27. Construction of the Statute of Wills enacted under Henry VIII. . . 28 28. A devise of lands did not transfer real property acquired subse- quent to its execution 29 (V) VI TABLE OF CONTENTS OF VOLUME ONE. See. Page. 29. Feudalism caused wills of land to be viewed differently from those of personalty 31 30. Changes wrought by the Statute of Wills, 1 Vict., ch. 26 33 31. The definition of various terms 33 CHAPTER III. CLASSIFICATION AND FORM 01" WILLS. 32. Written and oral wills 37 33. Four classes of written wills 37 34. The term ' ' alternative " or " double ' ' as applied to wills 38 35. No .technical form is essential to the validity of a will 38 36. The materials used in the making of wills may be of various char- acters, permanency being the principal requirement 39 37. Experts may decipher illegible writing or interpret foreign wills. . 41 38. The language of a will may be suggested by others, but it must ' express the intent of the maker 41 39. It is not necessary that the testator use words of command or direction 43 40. The date and attestation clause should be set forth in wills. Benefits thereof 44 41. Statutes prescribing formalities of execution must be considered. . 45 42. The question of the character of an instrument may be of vital importance 46 43. The determination of the character of an instrument affects sub- stantial rights 47 44. Writings in the form of deeds, notes, letters, assignments, and the like, have been admitted to probate 47 45. Features which distinguish a will from other instruments 49 46. The true test of a will is testamentary intent to pass property after the death of the maker 50 47. The same subject: Notes of a will to be thereafter drawn up sometimes admitted to probate 51 48. Courts will carry out the intention of the maker if it can lawfully be done 52 49. An instrument may be construed as a will although not so intended by its maker 53 50. The language of an instrument as showing the intent of the maker. 55 51. In determining the legal character of an instrument the court will be guided by its provisions together with surrounding circum- stances 57 52. Evidence of surrounding circumstances limited to the purpose of ascertaining intent 58 53. Parol declarations may be received as part of the res gestcB 60 54. Extrinsic evidence as affecting the question of revocation 62 TABLE OP CONTENTS OP VOLUME ONE. VII See. Page. 55. Distinction between a will and a declaration of trust 63 56. Distinction between a will and a deed 63 57. The same subject: If the instrument becomes operative before the maker 's death, it is not a will 65 58. The same subject: The provisions of an instrument as showing its character 66 59. The same subject: Various provisions construed 67 60. An instrument may in part be effective, both as a deed and as a will 70 61. Instruments testamentary in character are invalid unless executed as required by the law of wills 71 62. An instrument may be void both as a deed and as a will 72 63. Courts will not violate the law by changing the express character of an instrument 72 64. The presumption arising where a will consists of several sheets .... 73 65. Other writings may be incorporated in a will by reference 75 66. The same subject: The writing must have been in existence and clearly referred to. Proof of identity is necessary 77 67. The same subject: Instances of sufficient reference and identifica- tion 78 68. The same subject: Instances of insufficient reference and identifi- cation 80 CHAPTEB rv. JOINT, MUTUAL OK RECIPROCAL WILLS. 69. Separate wills may be in one document 83 70. Mutual testaments under the civil law 84 71. The terms ' ' joint, " " mutual, ' ' and ' ' reciprocal ' ' defined 85 72. Strict construction of the term ' 'joint will " 86 73. English cases construing joint wills 86 74. Early English cases distinguished 87 75. The present rule in England 88 76. American cases construing joint wills 88 77. Rule in England and in the United States 90 78. Construction of joint wills controlled by contents 91 79. The rule in cases where the property is to pass only after the death of both joint makers 92 80. Wills in their nature are revocable 93 81. Eevoeation of joint wills 93 82. Early English decisions regarding revocation of mutual wills 94 83. The case of Duf our v. Pereira distinguished 95 84. Mutual wills refused probate if revoked 95 85. The mere execution of mutual wills is not conclusive proof of a contract 96 VIII TABLE OF CONTENTS OF VOLUME ONE. Sec. Page. 86. Revocation of mutual wills, in some cases, can cause no injury. . . 99 87. Equity will interpose where revocation results in fraud 101 88. Acceptance of benefits : Revocation by survivor a fraud 102 89. Consolidation of property for purposes of a will : Effect on power of revocation 103 90. Secret revocation may result in fraud 104 91. Agreements to make mutual wills may be written or oral: Points arising in each case 105 92. Evidence necessary to establish an oral agreement to execute mutual wills 107 93. The same subject : Where fraud is an issue 108 94. Effect of bad faith in failing to make a will as agreed 109 95. Agreement that the marriage of one shall revoke the will of the other not effectual 110 96. Effect of marriage and the birth of issue on a will executed pur- suant to a contract 110 97. The same subject: Equity will not enforce unjust agreements Ill 98. The same subject: Effect of the acceptance of benefits 112 99. The same subject: Where the agreement to make mutual wills appears on the face of the instrument 112 100. The Statute of Frauds as affecting oral agreements to make mutual wills of real property: Part performance 113 101. The same subject: Does the statute refer to ownership at date of agreement or at time of death? 114 CHAPTER V. CONDITIONAL OK CONTINGENT WILLS. 102. Definition of a conditional or contingent will 116 103. Matters to be considered when conditional wills are offered for probate 116 104. Wills are not declared conditional if they can reasonably be con- strued otherwise ■. 121 105. The making of a will signifies that the testator did not intend to die intestate 123 106. The circumstances which can be considered in construing condi- tional wills 123 107. The same subject: Effect of failure to limit the contingency; the reasonableness thereof 124 108. The same subject: Nature of the bequests as indicating intention . . 125 109. The intention of the maker must be expressed; courts can not supply omissions 126 110. Extrinsic evidence not admissible to show whether maker intended will to be conditional 127 TABLE OF CONTENTS OP VOLUME ONE. IX See. Fage. 111. Effect of the Statute of Wills regarding the admission of evidence to show intent 128 112. Evidence of parol declarations or conduct of the maker not admis- sible to show intent 129 113. Courts can not qualify plain and unambiguous language 131 114. Wills effective at the election of a third person 132 115. "Alternative" wills 13i CHAPTER VI. DUPLICATE -WILLS. 116. Definition of duplicate wills 135 117. Inconsistent wills executed at the same time: Construed together, if possible 136 118. One copy only admitted to probate, but both should be produced. . 137 119. Revocation is presumed when a copy known to have been in the testator's possession can not be found after his death 138 120. Revocation of one duplicate causes presumption of intent to revoke both 139 121. No revocation except the intent exists 141 122. The facts may show a lack of intention to revoke 142 123. The presumption of revocation may be repelled by evidence: Burden of proof 143 124. The extent to which parol declarations may be admitted to prove or disprove revocation 144 125. The same subject: As showing lack of intent to revoke 144 126. The same subject : Held inadmissible 146 CHAPTER VII. LOUISIANA TESTAMENTS OE THE LAVT OP WILLS IN LOUISIANA. 127. Definition of the term ' ' testament" in Louisiana 149 128. Disposition by intervention of a third person abolished 150 129. Testaments valid if duly executed, irrespective of their designation . 150 130. Classification of testaments in Louisiana 151 131. Nuncupative testaments by public act 151 132. The same subject : Further requirements 152 133. Nuncupative testaments by act under private signature 153 134. Mystic or secret testaments 154 CHAPTER Vin. CONTRACTS TO MAKE WILLS. 135. Relationship of wills and contracts to each other 157 136. Oral contracts to win property viewed with distrust 158 X TABLE OP CONTENTS OP VOLUME ONE, See. Page. 137. Agreement to devise may be based on a future consideration 159 138. The necessity of an agreement, express or implied 160 139. Evidence necessary to prove the agreement 162 140. Services to be rendered a valid consideration for promise to will property 162 141. Compensation for services rendered can bo recovered 164 ,142. Compensation for services ; what can be recovered 166 143. Promise to compensate for services by will not invalidated by quick death of promisor 166 144. No right of action for compensation for services until after death of promisor 167 145. Acceptance of other gifts by promisee may waive his rights under the agreement 168 146. Equity enforces an agreement to will property by charging it with a trust 168 147. Specific performance: An exception to the rule that contracts should be mutual 169 148. The promisor is merely restricted to the reasonable use of the prop- erty agreed to be willed to another 170 149. Probate court has no jurisdiction to enforce agreements to devise property 171 150. Statute of Limitations: Time when it commences to run 172 151. Statute of Frauds does not apply to oral agreements to bequeath personalty 178 152. Oral agreements to devise realty are void under Statute of Trauds . 173 153. General rule is that specific performance of oral agreements to devise realty will be denied 174 154. Exceptions to general rule: When specific performance will be granted 176 155. Part performance may remove the bar of the Statute of Frauds. . . 177 156. Part performance: Instances of, as affected by the Statute of Frauds 177 157. Possession of the property as affecting the Statute of Frauds 179 158. What description of the property is necessary 180 CHAPTER IX. NUNCUPATIVE WILLS. 159. Definition of a nuncupative will 182 160. During the ages when the art of writing was comparatively unknown, oral wills of personalty were necessarily sanctioned. . . 183 161. The early privileges conferred on those who could read and write. 183 162. The law of nuncupative wills derived from the civil law 184 163. Definitions by early writers, of nuncupative wills 185 TABLE OF CONTENTS OF VOLUME ONE. SI Sec. Page. 164. The early rule was that oral wills were allowed only when the testator was in extremis 186 165. Provisions of the Statute of Frauds regarding oral wills: Those of soldiers and sailors not affected , 186 166. The same subject: Particular sections referred to 187 167. The same subject: The restrictions imposed caused the practical abolition of nuncupative wills 188 168. The Statute of Wills (A. D. 1837) as affecting oral testaments 189 169. In the United States, the law of nuncupative wills is variously founded on the Statute of Frauds or the Statute of Wills 189 170. Nuncupative wills operate only on personal property 191 ITl. Incomplete testamentary writings, prior to the Statute of Wills, were held effective as nuncupative wills of personalty 192 172. The same subject: Wills of soldiers and sailors, informally exe- cuted, may be admitted to probate 195 173. The terms "soldiers" and "seamen" include officers and all degrees 197 174. Question as to whether soldiers and seamen have an unqualiiied right to make nuncupative wills 198 175. Soldiers in actual military service are those on an expedition .... 200 176. When is a soldier on an expedition? Illustrations 201 177. The same subject 203 178. When does a military expedition begin or end? 204 179. Mariners and seamen at sea 206 180. In some jurisdictions, any qualified person may, under certain restrictions, make a nuncupative will 207 1 81. Meaning of the term ' ' last sickness ' ' — in extremis 208 182. Necessity of calling others to witness the testament 210 183. Intention to make a will must be clearly established by dis- interested vritnesses 213 184. There must be strict compliance with the statutory requirements. . 214 185. Number of witnesses to nuncupative wills 216 186. Committing the spoken words to writing 217 187. Evidence of witnesses to oral testaments must substantially agree. 218 188. A written will can not be revoked by one that is oral 218 189. Nuncupative wills of soldiers and sailors have been held valid although the testators had ceased their privileged callings 219 190. The same subject: Criticism of the rule 221 CHAPTEE X. DONATIONS MOKTIS CAUSA. 191. Origin of donations mortis causa 223 192. Definition by Lord Cowper 224 193. Distinguished from gifts Anter vivos : Definition 225 XII TASLE OF CONTENTS OF VOLUME ONE. See. Page. 194. Distinguialied from testamentary dispoaitions : Eights of creditors. 226 195. The right to make donations mortis causa: Not a fraud against rights of wife or children 227 196. Married women may make gifts mortis causa 228 397. Donor must intend that title shall become absolute in donee only in the event of his death 229 198. Revocation of the gift by the donor 229 199. It is necessary that there be peril or apprehension of death, with fatal result 230 200. Peril or apprehension of death which is sufficient to sustain the donation 232 201. The same subject: A serious operation 233 202. The same subject: One contemplating suicide is not "in appre- hension of death" 233 203. Real property can not be the subject of a donation mortis causa. . 234 204. The presumption as to the conditions imposed by law 236 205. Confusion of opinion as to the exact nature of donations mortis causa 237 206. Evidence necessary to establish the gift: Witnesses 239 207. The same subject : Burden of proof 240 208. Intention to give must exist: Effect of declarations 242 209. Effect of the donor's declaration that the gift is to be efifeetive if he dies 243 210. Declarations of intention to give, without delivery of property, are testamentary in character 244 211. The same subject: The reason given for the rule 245 212. The same subject: Criticism. 246 213. A trust is not created by an imperfect gift: Enforcement of a valid gift 247 214. Trusts or conditions attached to donations mortis causa 249 215. Delivery and continued absence of control are essential 250 216. Delivery to a third person for the benefit of the donee 251 217. Delivery where the property is in the possession of the donee 252 218. Cancellation of a debt 252 219. Constructive or symbolic delivery 253 220. A writing, without delivery of the property, will not sustain a donation mortis causa 254 221. Choses in action as the subject of a donation mortis causa: Changes in the rule 255 222. The same subject: Where endorsement precludes payment until after the donor 's death 257 223. Deposits in savings banks: Delivery of pass book 250 224. Promissory notes as the subject of the gift 262 825. Checks and dra^'ts: Not subjects of gifts mortis causa 263 226. The same subject: Decisions to the contrary 265 TABLE OF CONTENTS OP VOLUME ONE. XIII CHAPTEE XL PROPERTY WHICH MAY BE DEVISED OR BEQUEATHED. Sec. Page. 227. Power of testamentary disposition is statutory 268 228. Eules in England prior to the Norman Conquest 269 229. Devises of after-acquired real property 270 230. The same subject : Early rule in the United States 271 231. The intention of the testator determines whether or not after- acquired realty shall pass 271 232. The same subject: Intention to dispose of entire estate 273 233. The same subject : The general rule 274 234. The same subject : Statutory regulations 277 235. Of what date is a will presumed to speak? ' 277 236. The same subject : Common law rule 279 237. The same subject: The statute of 1 Victoria, ch. 26, affects only the subject matter disposed of, not the beneficiaries 281 238. The same subject : General rule in England 282 239. The same subject : Rule in the United States 283 240. Bight of entry: Disseisin: Statutory enactments 285 241. The same subject: May be devised 286 242. Eight of re-entry after condition broken : When devisable 288 243. Contingent interest in real property, where the party who is to take is uncertain 289 244. Interests in lands founded on contracts of sale and purchase 292 245. Interests in trust 294 246. Estates pur autre vie 294 247. Eight in equity to cancel deed is devisable 1-97 248. Life estates and joint tenancies : Not devisable 297 249. Estate by the entirety : Not devisable 299 250. Estates in coparcenary and tenancies in common may be devised. . 11 U 9 251. Community property and rights of dower, curtesy and homestead. . 300 B52. The same subject: Neither husband nor wife can be deprived of their statutory rights 301 253. The same subject: Effect of consent or election to take under the will 302 254. The same subject: Consent, when once given, can not be revoked. . 304 255. Chattels real: May be bequeathed 304 256. Interests of mortgagor and mortgagee: How considered 305 257. Choses in action and other personal property 307 258. Benefits arising from a policy of life insurance: Distinguishing features 339 259. The same subject : "When payable to the estate of the insured, for the benefit of his vpife and children 311 260. The same subject: When payable to a specified beneficiary 312 261. Benefits accruing from membership in mutual benefit societies 312 XIV TABLE OF CONTENTS OF VOLUME ONE. Seo. Page. 262. Claims against the government : When they may be bequeathed. . . 314 263. Limitations upon devises for charitable purposes 315 264. No property right in a corpse : Eight of burial 316 CHAPTER XII. THE LAW WHICH GOVERNS IN CASES OF CONFLICT. 265. Scope of chapter 319 266. The term "domicile" defined 320 267. "Domicile" is a question of fact 322 268. Domicile of married women 325 269. Eights in real property are governed by the law of the situs 326 270. Succession to personal property is governed by the law of the domicile of the decedent 327 271. Devises of real property are controlled by the law of the situs 330 272. Intention of the testator: By which law governed 334 273. Bequests of personal property: General rule is that law of tes- tator's last domicile controls. 335 274. The same subject: Decisions to the contrary 342 275. Effect of a change of domicile by the testator subsequent to execut- ing his will 345 276. Law governing the rights of a wife or child 346 277. Statutory regulations as to foreign -wills 347 278. Chattels real: Difference between English and American rule 349 279. English rule as to bequests of personalty: Statutory regulations. . 350 280. Power of appointment exercised by wiU 351 281. Eecording certified record of the probate of a foreign will 353 282. Ancillary administration 355 283. Charitable devises and bequests: Perpetuities: By which law gov- erned 359 284. The same subject : Dlustration of the general rule 360 285. The same subject: To the contrary 362 286. The same subject : Purpose of statutes explained 364 287. Taxes upon the right to acquire property by will or under the laws of succession 366 288. The same subject: Eeal property: When converted into personalty. 369 289. The same subject: As to transfers under a power of appointment. 371 290. The same subject: The rule that personal property follows the owner, not controlling 372 291. The same subject: Taxes as to personalty sometimes governed by law of domicile 375 292. The same subject: Sitiis as applied to personal property 377 293. The same subject: "Tangible or intangible" personal property. . 380 294. The same subject: Bonds and certificates of stock of corporations distinguished , 381 TABLE OF CONTENTS OP VOLUME ONE. XV See. Page. 295. The same subject : What is ' ' property within the state 1" 383 296. The same subject: English rule 386 CHAPTEE XIII. I;E6AIi DISABILITIBS IMPOSED UPON CEKTAIN PERSONS. 297. Distinction between disabilities imposed and mental incapacity. . . . 391 298. Infancy: Testators under a fixed age can not make valid wills: English rule 392 299. The same subject : Eule in the United States 394 300. Manner of computing the time when minority ends 395 301. Married women : Disabilities at common law 395 302. The same subject: Exceptions to the rule 398 303. The same subject: Eight of testamentary disposition of her ' ' separate personal estate " 398 304. The same subject: Disability removed by husband's death, and other causes 400 305. The same subject: No power to devise lands 400 306. The same subject: Effect of subsequent marriage of a feme sole, or death of husband, on wills theretofore executed 401 307. The same subject: Present rule in England: Married Women's Property Act 402 308. The common law rule in the United States as to the disabilities of married women 404 309. Construction of statutes removing the disabilities of married women 406 310. Limitation upon the right of a husband or wife to dispose of prop- erty in which the law gives the other an interest 407 311. The general principles prevailing in the United States as to the rights of married women 408 312. Civil death generally 410 313. Outlawry defined 411 314. Outlaws denied the right of making testamentary dispositions 412 315. Attainder and corruption of blood 413 316. The same subject: Statutory regulations in England 413 317. Bills of attainder and corruption of blood in the United States: Constitutional provision 415 318. Civil death because of conviction of a felony 416 319. Disabilities of aliens: English rule 418 320. The same subject : American rule 421 321. The same subject: Distinction between title to real property passing by operation of law and by act of the parties 423 322. The same subject : As to personal property 425 323. The same subject: Disabilities of alien enemies 426 XVI TABLE OP CONTENTS OP VOLUME ONE. Seo. Fage. 324. The Bame subject: Effect of treaties 427 325. The same subject: State regulations 429 CHAPTER XIV. MENTAL CAPACITY NECESSARY TO MAKE A VALID "WILL. 326. A testator must be of sound mind 434 327. Mental capacity is tested as of the date of the execution of the will. 435 328. Testamentary capacity refers to the ability to understand 436 329. Sound mind defined: Variations of the rule 437 330. The degree of testamentary capacity required varies according to conditions 440 331. A weak mind is not inconsistent with testamentary capacity 442 332. Ability to transact business not a true test of testamentaiy capacity 444 333. Presumption as to the contimtance of insanity: Chronic or tem- porary 446 334. Effect of an adjudication of insanity 448 335. Effect of the testator being under guardianship 449 336. Effect of an adjudication of incompetency subsequent to the mak- ing of the wiU 452 337. Lucid intervals 453 338. The same subject : Description and proof 456 339. The law deals with the effect of the mental derangement, not its cause 457 340. Effect of partial loss of memory 458 341. Infirmities of old age do not establish testamentary incapacity. . 459 342. The same subject 461 343. The same subject: A question of fact 462 344. Insane delusions defined 463 345. Unless the provisions of the will are affected by the insane delu- sion, the instrument is not invalidated 465 346. Unusual religious beliefs, spiritualism, and the like, in themselves do not establish incapacity 469 347. Effect of evidence of eccentricities 470 348. Deafness, dumbness, and blindness 472 349. The same subject 472 350. Excessive use of drugs or intoxicants 475 351. Apoplectic seizures and epileptic spells 477 352. Suicide does not, of itself, establish mental incompetency 478 353. Unreasonable prejudices and animosities 478 354. Wills containing harsh and unreasonable provisions : Do not estab- lish incapacity 480 355. The same subject: How considered 481 TABLE OF CONTENTS OF VOLUME ONE, XVII CHAPTER XV. ETTLES OF EVIDENCE EEGAKDING TESTAMENTAET CAPACITY. Sea. Page. 356. Evidence admitted of occurrences both prior and subsequent to the making of the will 486 357. Effect of proof of insanity, chronic or temporary 486 358. Evidence of testator's mental condition, acts, and habits, before and after execution of his will, admissible 487 359. Oral and written declarations : Difference in effect 489 360. Declarations of the testator : For what purposes admitted 489 361. Declarations of the testator as affecting the issue of testamentary capacity 490 362. Declarations of testator admitted to show state of mind, not as proof of facts stated 492 363. Deeds, letters, prior wills, and the like: How considered 493 364. Proof of insanity of blood kindred 495 365. Manner in which testator was treated by his family 496 366. Interests of beneficiaries under a will are not joint: Effect as to . declarations being admitted in evidence 497 367. Admissions against his interest by one of several beneficiaries 498 368. The same subjefet : A middle ground 499 369. The same subject : Inadmissible in evidence 500 370. The same subject • 501 371. Declarations of subscribing witnesses 502 372. Declarations admissible for purpose of impeachment 503 373. Declarations against interest by a sole beneficiary ' admissible in evidence 504 374. Classification of witnesses who may testify as to testamentary capacity of the testator 504 375. Subscribing witnesses should satisfy themselves that the testator is of sound mind • 505 376. Opinions of medical experts admissible 508 377. Who are medical experts 509 378. Medical experts should state facts to give their opinions weight. . . 510 379. The same subject i - ■ '■ '■ ' ■ .i . . . 512 380. Subscribing: witnesses may state opinions as to sanity or insanity of testator 513 381. Subscribing witnesses should state facts so that value of opinions noay be judged • • 514 382. The weight given to opinions of subscribing witnesses 515 383. Opinions of lay witnesses depend upon knowledge of facts 516 384. Lay witnesses must state opportunity for observation 517 385. Lay witnesses may state facts and give opinion based on them. . . 519 386. The same subject: Opinion must be based on facta given in evi- dence by witness 521 XVm TABLE OF CONTENTS OF VOLUME ONE. Sec. Page. 387. The same subject: Distinction between opinions as to sanity and as to insanity 522 388. Distinction between statements of fact and of opinion is often slight 523 389. Trial court must determine qualifications of witness to express an opinion 524 390. Privileged communications : Waived as to subscribing witnesses . . 526 391. The same subject: Who may claim or waive the privilege 528 392. The same subject: Contest between heirs and next of kin 531 393. The same subject: Claiming privilege is not suppression of evi- dence 532 394. Burden of proof: Term defined 532 395. The term "burden of proof" as it has been applied in vriU con- tests 533 396. All persons are presumed of sound mind, in absence of evidence to the contrary 535 397. Presumptions and suspicious circumstances 536 398. Distinction where will is prepared by testator, or under supervision of principal beneficiary 538 399. Proponent should establish his prima facie case by proof of testa- mentary capacity: Conflict of authority 539 400. The same subject : Weight of authority 541 401. Burden of proof after proponent has established a prima facie ease 543 402. Burden of proof: The better rule 547 403. Testamentary capacity is a question of fact 548 CHAPTER XVI. , SIGNATURE OF THE TESTATOE. 404. statutory formalities as to execution are mandatory 551 405. Seasons for formalities 552 406. All requirements must be observed : Intention, alone, is insufficient. 553 407. The same subject: Parol or extrinsic evidence, when admissible. . 554 408. Wills must be executed with testamentary intent 555 409. Knowledge of the contents of the will 555 410. Execution under the Statute of Wills of Henry VII 556 411 . Execution under the Statute of Frauds , 557 412. Signing by the testator : Eule under the Statute of Frauds 558 413. Position of the testator's signature: English rule 559 414. No disposing clauses should follow signature 500 415. American rule as to signature of testator based generally on the Statute of Frauds C61 41^. Statutory regulations as to signing 563 TABLE OP CONTENTS OF VOLUME ONE. XIX See. Page. 417. The same subject : American rule under acts similar to the Statute of Frauds 564 418. Necessary to sign but once, although will may consist of several sheets 565 419. Signing or subscribing at the end : Eeason for rule 566 420. The same subject: Requirement must be complied with although no fraud be shown 568 421. End of the wiU: Effect of blank spaces 569 422. End of the will 5s the logical end of the disposing portion 571 423. Effect of part of will following signature of testator 573 424. The same subject : Illustrations 574 425. The same subject: Apparent exceptions to the rule 575 426. The same subject: Immaterial additions 576 427. Signing by mark 577 428. Signing by stamp, and sealing 578 429. Testator must intend the mark to stand as his signature 579 430. Signing initials only, or wrong name 580 431. Presumption is that testator knew contents of will although he signed by mark 581 432. When testator may sign by mark 582 433. Another may guide the hand of the testator 583 434. Testator's name may be signed by another: Express direction or consent 585 435. The same subject 586 436. Who may sign for the testator 588 437. Testator prevented from signing by act of God, effect of 589 438. The same subject : Proof required 590 439. Power of appointment executed by will 591 440. The same subject: Formalities required 592 441. The same subject: Effect of the Statute of Wills of 1 Victoria, ch. 26 593 442. The same subject: Time of execution 594 CHAPTER XVII. NTTMBEK AND CHABACTEE OP WITNESSES EEQUIBED FOR THE EXECUTION OP WILLS. 443. Written wills must be witnessed 596 444. Meaning of ' ' attested" and ' ' subscribed " 596 445. Purpose of statutes requiring witnesses 598 446. Witnesses identify the will 599 447. Signing by testator should precede signing by witnesses 600 448. The same subject: When all part of one transaction 602 449. Witnesses must be mentally competent: As to age 602 450. Meaning of "credible" or "competent" as applied to witnesses. . 604 XX TABLE OP CONTENTS OP VOLUME ONE. 8eo. 451. Persons interested under the will are disqualified as witnesses: Statute of 25 George II, eh. 6 608 452. The same subject: Beneficiary may be a witness against the will . . 609 453. Heir at law as an attesting witness 610 454. Interest, to disqualify a witness, must be a direct and beneficial interest 610 455. Executor as an attesting witness: Conflicting decisions 613 456. The same subject : Prevailing rule 615 457. Creditors as attesting witnesses 616 458. Gifts to attesting witnesses void: Modifications of the rule 617 459. Husband or wife of a beneficiary as an attesting witness : Early rule 619 460. The same subject: Statute of 1 Victoria, eh. 26 620 461. The same subject: Eule in the United States 621 462. Number of witnesses required 622 463. Holographic wills: When witnesses not required 624 464. Purpose of statutes authorizing holographic wills 626 465. Other instruments not written by testator can not be incorporated in a holographic will 62d 466. Holographic wills : How and where signed 627 467. The same subject: Meaning of "written by the hand of the tes- tator" 628 CHAPTER XVIU. ACKNOWl/BDGMBNT OF SIGNATUEE AND PUBLICATION OP WILI<. 468. Acknowledgment of signature : Eule under the Statute of Frauds . 631 469. Acknowledgment of signature is expressly mentioned in the statute of 1 Victoria, ch. 26 632 470. American statutes regarding acknowledgment of signature by tes- tator 633 471. When testator does not sign in presence of witnesses, acknowledg- ment of signature is necessary G35 472. The same subject: Exhibiting signature necessary 636 473. The same subject 639 474. What constitutes acknowledgment 639 475. The same subject: Where will is signed for testator by a third person 641 476. "Acknowledgment" and "publication" distinguished 642 477. Time of publication 643 478. Publication not required under the Statute of Frauds 644 479. Publication, where required 645 480. Proof of publication 647 481. What constitutes publication: Surrounding facts and circum- stances 648 TABLE OF CONTENTS OP VOLUME ONE. XXI Sec. Page. 482. The same subject : Aequieseenee or approval 651 483. The same subject: Reading full attestation clause to witnesBes. . . 654 CHAPTER XIX. ATTESTATION AND SUBSCSIPTION BT WITNESSES. 484. signing in presence of witnesses : Statute of Frauds 657 485. Signing or acknowledging signature before witnesses separately: Early rule 658 486. Presence of witnesses with reference to signing, ackT^owledging, and publishing 659 487. The same subject : Illustrations 660 488. Witnesses "present at the same time" 661 489. Requesting witnesses to sign as such: Statutory regulations 662 490. What constitutes requesting witnesses to sign 663 491. When witnesses are summoned by an interested party 664 492. Witnesses signing or subscribing their names: Signing wrong name 665 493. Desirable that witnesses can write their own signatures, also to insert residences 666 494. Witness signing by mark, or initials 667 495. Name of witness written by another : Conflict of authority 668 496. Witnesses should sign after execution by testator has been com- pleted : Strict rule 671 497. The same subject : Liberal rule 673 498. Position of signatures of witnesses 674 499. Witnesses must sign their names animo testandi 675 500. Witnesses must sign ' ' in the presence of the testator " 677 501. What constitutes ' ' in the presence of the testator " 678 502. Witnesses signing in a different room 683 503. Blind testator : What constitutes " in his presence " 684 504. Witnesses signing in the presence of each other 685 505. The same subject: When demanded by statute 686 506. Attestation clause not essential to the validity of the will 688 507. Attestation clause is prima facie evidence of facts recited therein. 689 508. Will may be established against the testimony of attesting wit- nesses 690 509. Witnesses dead, out of the state, or can not remember: Value of attestation clause 692 510. The same subject: Although testator signed by mark 693 511. Will regular on its face presumed to have been duly executed 694 512. The same subject : Conflicting view 695 513. Due execution a question of fact 696 XXII TABLE OP CONTENTS OP VOLUME ONE. CHAPTEE XX. EEVOOATION AND AnTBBATION. Sec. Page. 514. Statutory regulations 700 515. Statutes regarding revocation are not retroactive 702 516. Eevocation by parol generally prohibited 702 517. Eight and meaning of revocation 703 518. Mental capacity necessary : Act and intent must concur 703 519. What mutilation constitutes revocation : Surreptitious preservation of fragments 705 520. Lines drawn across the will 707 521. Burning : Intention to burn insuflfieient 708 522. Destruction by third person : Direction of testator 708 523. Partial revocation: Authorized under the statutes of some juris- dictions 710 524. The same subject: Evidence of intention may be shown 711 525. Eevocation by will or other writing 712 526. Eevocation by later, inconsistent will 713 527. Wills, partially inconsistent, construed together 716 528. The same subject: Ambiguous expressions 717 529. Eevocation of will does not necessarily revoke a codicil thereto 718 530. Eevocation of codicil does not revoke will 719 531. Nature and execution of subsequent writing revoking will 720 532. The same subject 721 533. Implied revocation 722 534. The same subject: Illustrations 724 535. Implied revocation by marriage and birth of issue: Common law rule _. 726 536. Will of feme sole revoked by her marriage 728 537. Implied revocation by marriage: Eegulations in the United States. 729 538. The same subject 732 539. Implied revocation from birth of issue 738 540. Implied revocation from void conveyance 735 541. Alteration of circumstances as implying revocation 735 542. Sale of property devised, as affecting revocation 736 543. Agreements to convey property devised, effect of 737 544. Implied revocation from alteration of estate generally 738 545. The same subject 739 546. Intent to revoke, without the performance of some act, is insuflS- cient 740 547. Acts alone do not work a revocation unless the intent to revoke exists 742 548. Evidence of intention to revoke 743 549. The same subject 746 550. Presumption as to intention to revoke: Burden of proof 747 TABLE OP CONTENTS OP VOLUME ONE. XXTTT Sec. Page. 551. The eame subject: Lost wills 749 552. Eevocation made in contemplation of a new disposition 750 553. The same subject 751 554. General effect of revocation 753 555. Will revoked by subsequent will not revived by revocation of latter : English rule 754 556. The same subject: Eule in the United States: Conflicting deci- sions 755 557. The same subject 756 558. Alterations and interlineations: Presumed to have been made after execution 759 559. The same subject : As to revocation 761 560. The same subject: Alterations disregarded: Original will de- ciphered if possible 762 561. The same subject: When made by a stranger, or interested party. 764 CHAPTER XXI. KEPUBLICATION OP WHiS. 562. Bepublication : Meaning of the term 766 563. BepubUcation as affected by statute: English rule 767 564. Bepublieation generally accomplished only by re-exeeution with £l1I formalities 768 565. Bepublieation of will by oodicU 769 566. Codicil need not be attached to will, but must refer to and identify it 771 567. The same subject : Presence of will and formal declaration unnec- essary 772 568. Effect of republication by codicil : Intervening codicils 773 569. The same subject : Unexecuted codicils 774 570. Effect of republication. 774 571. The same subject 775 572. Defective execution of will cured by oodicU 776 TABLE OF OASES OP VOLUME ONE 781 INDEX rOE VOLUME ONE 845 COMMENTAEIES ON THE LAW OF WILLS CHAPTER I. ORIGIN AND DEVELOPMENT OF THE LAW OF WILLS. § 1. Nature of the right to make a will. § 2. Ancient conception of testamentary power. § 3. Ancient purpose of wills. § 4. Creation of the true idea of wills. § 5. Law of the Twelve Tables. Eules under Justinian. § 6. Influence of feudalism. § 7. Early rules in England. § 8. Effect of military tenure in England. § 9. Right to bequeath personal property early recognized. § 10. Early distinctions between deeds and devises. § 11. Doctrine of Uses ; its introduction and purpose. § 12. Effect of the doctrine of Uses. § 13. Statute of Uses ; its purpose. ? 14. Statute of Uses ; its effect. § 15. Statute of Wills enacted under Henry VIII. § 16. Statutes of Uses, and of "Wills as affecting the construction of wills. § 17. Statute of Frauds ; its purpose. § 18. Testaments of chattels under the Statute of Frauds. § 19. Statute of Wills enacted under Queen Victoria. § 20. Military tenure never recognized in the United States. § 21. Testamentary disposition a statutory power. (1) I Com. on Wills — ^1 2 COMMBNTAEIES ON THE LAW OP WILLS. § 1. Nature of the Right to Make a Will. The right of disposing of property after death accord- ing to directions given during life, although of great antiquity, is the result of the social life of man and is governed by laws which he has enacted.^ The right of children and kindred to succeed to the property of the deceased is of much earlier origin, but even that right, seemingly allied to the law of nature, appears to be the result of long established custom.^ Some claim that the principles of love and duty should compel man to cause his property, after his death, to be passed on to his blood descendants, yet the law of wills, within certain pre- scribed limits, allows him to disregard the claims of those who are naturally dependent upon him. This apparent conflict is simplified when we consider that the rights of intestate succession and of testamentary dispo- sition have developed with the growth of society and have been regulated according to the wisdom of man, influenced by both love and charity. § 2. Ancient Conception of Testamentary Power. At the commencement of man 's social life, the Family was the unit, governed by the Patriarch who held his possessions as a trustee for his descendants and kindred. The Family has been described as a corporation with the right of succession. With the growth of cultivated society the rights of the Family gave way to the claims of tLe House, the Tribe, and the State; and as the ties which bound the few expanded until they encompassed the many, there arose new duties to others than kindred. The fulfillment of these new obligations could not be accomplished under the rules of succession, and thus was 1 2 Bl. Com. *12. 2 2 Bl. Com. 'll. ORIGIN AND DEVELOPMENT. 3 opened the way for the conception of the idea of other means of disposing of property after death.* The right of testamentary disposition, being allied to social development, was naturally unknown to barbaric races. The ancient Hindoo had no true conception of a will, but by means of adoption he provided for the suc- cession to his property after his death.* There is author- ity that the right of testamentary disposition existed among the ancient Hebrews,^ but the quotations generally relied upon,® according to the author, hardly uphold the. contention that property was disposed of by will, but;: refer more to transfers and rights of succession. ;. In Athens, before the time of Solon, property descended^ to the children or kindred of the deceased. The laws of; Solon, 594-590 B. C, allowed testamentary disposition to a limited extent. The right was granted only to those who had no children of their own, who were of sound memory and whose minds had not failed because of sick- ness, drink, charms or other violent and extraordinary- means, or because of the enticements or persuasions of women. Constraint or subornation was deemed to deprive man of his reason, whether accomplished by fraud or violence, pleasure or sorrow, passion or mad- ness.'^ In the event of children the right was qualified unless the sons had died before reaching the age of six- teen, and as to daughters, that the devise was conditional that the devisee marry them.* Blackstone states that wills were unknown in Eome prior to the laws of the Twelve Tables,* about 450 B. C. ; 3 Maine, Ancient Law, ch. 6. t Plutarch, Solon and his Laws, 4 Maine, Ancient Law, ch. 6. Trans. Sir Thomas North. 5 2 Bl; Com. *490, *491. s 4 Kent Com. *502. 6 Genesis, chs. 15, 21, 23, 26, 48; g g Bl. Com. *491; but see notes Levit., ch. 25; Num., chs. 27, 36; ^^ contrary in Chitty's edition. Dent., ch. 21, v. 15-17. 4 COMMENTAKIES ON THE LAW OF WILLS. but the disposal of property by a form of will and to a limited extent, had undoubtedly been practiced before that time. The procedure, however, was not for the purpose of a general disposition of the dead man's prop- erty, but was one of several methods of transferring the representation of the household to a new head,^" § 3. Ancient Purpose of Wills, The early conception of a will was not that it was an instrument whereby property could be distributed accord- ing to desire. The laws of Solon forbade the disinher- itance of direct male descendants. In Eome the will was regarded only as a means of better distributing the prop- erty of the deceased among his kindred than could be obtained under the rules of succession, and not for the purpose of passing the property outside of the family.^^ The principle of Family rights was so firmly imbedded in the minds of the Eomans that they did not conceive of a will as a method whereby the Family could be disin- herited or property inequitably distributed. The law of the Twelve Tables granted the power of testamentary disposition only in the event of the failure of children or proximate kindred. Disinheritance of heirs was not prohibited because it was not contemplated. Laws re- stricting the use of wills for such a purpose developed with the use itself.^^ The later Rabbinical jurisprudence allowed testa- mentary disposition only when, according to the Mosaic law, there were no kindred to succeed.^* § 4. Creation of the True Idea of Wills. To the Eoman is given the credit for the creation of the true idea of wills, but it inust be remembered that it 10 Maine, Ancient Law, ch. 6. 12 Maine, Ancient Law, cti. 7. 11 Maine, Ancient Law, cli. 6. 13 Maine, Ancient Law, ch. 6. ORIGIN AND DEVELOPMENT. 5 was a matter of slow growth. The early Roman will, by mancipation, "with the copper and the scales," being a symbolic purchase by the heir, founded upon the ancient Roman conveyance which existed long before the art of writing had come into common use, was neither secret nor revocable, and further, it took effect upon execution. At first being oral, at least five persons in addition to the testator and beneficiary, were required to view the cere- mony, numbers and formality being deemed necessary to insure remembrance and to impress the memory with the importance of the affair. Under the foregoing conditions wills were naturally made only in contemplation of death, for if the testator recovered he could rule his household only through consent.^* Originally the conveyance and directions of the testator were viewed as a whole. When it became permissible to substitute a stranger in the place of the heir as the pur- chaser, secrecy became possible. Separating the transfer of property, which was a matter of form, from the wishes which the testator directed to be executed after his death, either orally before witnesses or set forth in a written instrument duly authenticated before witnesses, gave such additional importance to the instructions of the testator that wills became revocable. Grradually the spirit rather than the letter of the law became recognized and the old method of symbolic transfer to the heir slowly disappeared. Remnants of the old forms, however, con- tinued far down into the Middle Ages.^^ § 5. Law of the Twelve Tables. Rules Under Justinian. Testamentary disposition, prior to the Twelve Tables, did not include the right of giving legacies, but the broad scope of that portion relating to wills gave rise to the 14 Maine, Ancient Law, ch. 6. is Maine, Ancient Law, ch. 6. 6 COMMENTABIES ON THE LAW OF WILLS. doctrine that the inheritance might be burdened accord- ing to directions given by the testator, thus the heir might receive the inheritance subject to the payment of legacies. The value of exact and positive proof of the behests of the testator was therefore noticed, and written testaments assumed a new importance as a means for the prevention of fraud. There is a conflict of authority as to whether or not the law of the Twelve Tables allowed females to inherit under the rules of succession.^® The broken text of that portion of the law which has come down to us is not decisive. Kinship under the ancient Family was traced through the male line only. Females upon marriage passed into the family of the husband and therefore kin- ship as well as the right of inheritance was lost in the Family to which they were connected by blood ties. We find, however, that long after the Twelve Tables, laws were passed to exclude women from the right of inherit- ing, but these laws were later abrogated or evaded. At whatever time the various changes may have taken place, under the reign of Justinian all distinction was removed and males and females became equally entitled to the right of succession, lineal descendants were preferred to collateral kindred, and the order of succession became very similar to that which prevails in America today. 16 Chancellor Kent, 4 Com. *378, death of a citizen leaving no will, says that under the law of the his property was inherited by the twelve tables, male and female following classes In their respec- children were equally entitled to tive order: First, unemancipated succeed, but that under the Prse- children; if there were none, then tors the right of females to inherit the nearest grade of kindred was fettered. Sir Henry Maine, through the male line; and this Ancient Law, ch. 7, says that class failing, then all those of the under the early civil law of Rome, same name as the deceased who, the time not being fixed, upon the through sacerdotal fiction, were ORIGIN AND DEVELOPMENT. 7 The llStli novel of Justinian is the foundation of English and American statutes of distribution of estates of intes- tates." § 6. Influence of Feudalism. With the growth of feudalism and the development of the doctrine of primogeniture, the rules of the Civil Law relating to succession were largely overthrown. Under the feudal system, a period of social retrogression and decline of civil authority, lands were held under military tenure, the duty of rendering military service being a condition annexed to the grant. There was also the necessity of keeping the estate intact for purposes of offense and defense, so each feudal lord became the head of a consolidated family. To preserve these features of feudalism, the eldest son, being the one first able to render service, was preferred in the order of succession. Females were deprived of the right of succession for the reason that they could not render military service and also because, through marriage, the feudal estate might pass to strangers or enemies.^® § 7. Early Rules in England. In England, before the Norman Conquest, lands could be devised by wilP^ unless restricted by rights of the assumed to be of the same gens ants succeeded together with the and descended from the same com- brethren and sisters, though by mon ancestor as the deceased; the law of the twelve tables the that emancipated children (those mother was originally, on account freed from parental control) and of her sex, excluded. relatives through female descent ^^ ^ j^^^^ ^^^ »g^2; 4 Kent were excluded. Justice Blackstone, q^^ ,3^8. 2 Com. *210, says, by the laws of Home, in the first place, children ^^^ Kent Com. *382, •383; or lineal descendants were pre- ^*5°«; ^"^"^e^t Law. ch. 7; 2 Bl. ferred; on the failure of these, the ^°^- *214-216. father and mother or lineal ascend- 19 2 Bl. Com. ♦373. 8 COMMENTARIES ON THE LAW OP WILLS. family specially mentioned in tlie grant or title-deed.^" With the introduction of the system of military tenure, restraint was placed upon the alienation of lands either by grant during the life-time of the holder or by devise after his death. The power of testamentary disposition did not yield to the demands of feudalism as soon as did that of alienation during the life-time, and restrictions upon the right of devising came last in point of time.^^ Alienation, however, could take place with the consent of the lord.^^ Magna Charta, affirmed in 1215 and again confirmed, with additional alterations, in 1217, provided, among other things, that no freeman should lawfully alienate so much of his land as to leave him unable to perform his services to the lord of the fee, and that one- third of all lands belonging to the husband during cover- ture should go to the widow as her dower unless she had at marriage been endowed with a smaller portion. It also placed a check upon alienations in mortmain.^* § 8. Effect of Military Tenure in England. Under the system of military tenure in England, the highest class of which was tenure by knight-service, whereby lands were granted by, dependent upon, and holden of some superior lord, certain prerogatives were vested in the over-lord, viz., aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat.^* It is not necessary to describe in detail these conse- quences incident to tenure in chivalry^^ further than to say that they were incompatible with either the free 20 2 Stubbs Const. Hist. Eng., 23 Llngard Hist, of Eng. ch. 15, p. 188. 24 2 Bl. Com. »62, *63. 21 4 Kent Com. •504. 25 2 Bl. Com. *ez, *74. contains 22 4 Kent Com. *504; 2 Bl. Com. a description of the seven conse- •373. quences of military tenure. ORIGIN AND DEVELOPMENT. 9 alienation of lands by the holder during his lifetime or a disposition thereof taking effect after his death. These prerogatives, however, were gradually modified and abol- ished as the feudal system decayed, until in 1660, upon the restoration of Charles II, military tenure, with its accompanying rights and obligations, was abolished.^^ § 9. Right to Bequeath Personal Property Early Recognized. The power of bequeathing personal property, in vary- ing degrees, seems to have existed in England from the earliest times.^'' The early rule was that a man's per- sonal estate was divided into three equal parts, one pass, ing to his heirs or direct descendants, one to his wife or in the absence of a surviving wife, to his children, the remaining portion being subject to his disposition. If he left no surviving wife or issue, the whole could be bequeathed. The portions allotted to the wife and chil- dren were called their reasonable parts, and were recov- erable by the writ de rationabili parte honorum.^^ This was the law at the time of Magna Charta which in itself provided for the payment of the king's debts and the saving to the wife and children of their reasonable shares.^* Blackstone is of the opinion that the rule was 26 12 Charles II, ch. 24; 2 BI. the chattels of the dead, founded Com. *77. upon his lay-fee, to the value of 27 2 Bl. Com. *491. the deht, hy the view of lawful 28 2 Bl. Com. *491, *492. men, so, however, that nothing 29 Magna Charta (1215), art. 26, shall be removed until our whole provides as follows: "If any one clear debt be paid: and the rest holding of us a lay-fee shall die, shall be left to the executors to and the sheriff, or our bailiffs, can fulfil the testament of the dead, show our letters patent, contain- and if there be nothing due from Ing our summons for the debt him to us, all the chattels shall go which the dead man did owe us, to the use prescribed by the dead, it shall be lawful for the sheriff saving to his wife and children or our bailiff to attach and inroll their reasonable shares." 10 COMMENTAEIES ON THE LAW OF WILLS. part of the common law, but cites Coke as holding it a local custom. At all events it appears to have gradually disappeared until all personal property could be freely bequeathed.^" § 10. Early Distinctions Between Deeds and Devises. Eestrictions upon the alienation of real property by deed were removed long before there was relief from the restraint against testamentary disposition of land, the latter continuing for some centuries thereafter.'^ There were reasons for this difference. A devise of lands was in effect a transfer which took effect after death. Freehold estates could not commence in futuro because there could be no livery of seisin.*^ Devises were viewed with suspicion because of the fear that the testator in extremis might be imposed upon. Transfers by deed took effect at once ; they were open, of general notoriety, accompanied by the public designation of the successor and the livery of seisin, and the corporeal possession was, by a symbol, actually delivered. A devise lacked all such attributes.'* § 11. Doctrine of Uses, Its Introduction and Purpose. The statutes of mortmain which limited the right of ecclesiastical corporations of holding the legal title to lands, caused the ecclesiastics to introduce the doctrine of uses into England.** The simplicity of the common law could recognize no estate in lands not connected with 30 2 Bl. Com. *492, *493. Chancellor Kent, 4 Kent Com. SI 2 Bl. Com. *374, *375. *293, says: "Uses were descend- 32 2 Bl. Com. *314; 4 Kent Com. ible, according to the rules of the •291. common law, In the case of Inher- 33 2 Bl. Com. *375. itances in possession. They were 34 4 Kent Com. *290, *293; 2 Bl. also devisable, as they were only Com. *328, *375. declarations of trust binding in ORIGIN AND DEVELOPMENT. 11 legal seisin and possession, and the idea of uses was therefore borrowed from the civil law.®^ The fidei-com- missum of the civil law furnished the idea for the doc- trine of uses more than the usus fructus, the latter being the temporary right to use something. Fidei-commissum was usually created by wiU, having been adopted by testators to defeat the law which precluded exiles and strangers from being beneficiaries under wills. The in- heritance was disposed of to some one competent to receive it, in trust to convey the profits according to the wish of the person whom the testator desired should receive the benefit. At first it was binding only in con- science until the Emperor Augustus directed the praetor to afford relief to the cestui que use. This gave rise to a new division of rights under the civil law, the conscience; and Lord Bacon, In opposition to Lord Coke, who in Chudleigh's Case bad put the origin of uses entirely upon the ground of frauds invented to elude the statutes of mortmain, main- tained that uses were introduced to get rid of the inability at com- mon law to devise lands (Bacon Law Tracts 316). It is probable that both these causes had their operation, though the doctrine of uses existed In the civil law, and would naturally be suggested In every community by the wants and policy of civilized life." Jus- tice Blackstone, 2 Com. *328, *329, says the notion of uses was trans- planted into England about the close of the reign of Edward III, by means of the foreign ecclesi- astics, for the purpose of evading the statute of mortmain, but hav- ing once been introduced, however fraudulently, it afterward contin- ued to be often innocently, some- times laudably, applied to a num- ber of civil purposes, particularly as it removed the restraint of alienations by will. 35 Bacon on Stat, of Uses, Law Tracts 315: "I find that in the civil law that which cometh near- est in name to the use is nothing like in matter, which is usus fruc- tus; for usus fructus and dominium is with them as with their particu- lar tenancy and inheritance. But that which resembleth the use most is fidel commisslo; and there- fore you shall find in Justinian, lib. 2, that they had a form in testaments to give inheritance to one to the use of another, and the text of the civilians saith, that for a great time if the heir did not as 12 COMMBNTABIES ON THE LAW OP WILLS. fiduoiariuln, or right in trust, as distinguished from jus legitimum, a legal right, and jus precariv/m, a precarious right enforceable only by entreaty.*" § 12. Effect of the Doctrine of Uses. The innovation of the doctrine of uses was at first trivial, but the practice became general when adopted by the clergy during the reign of Edward III. It effected a mode of transferring land entirely different from the methods known to the old law. The ecclesiastics were masters of the civil law. Eights flowing from a use in land were proper matters of equity and naturally a favor- able construction was given to uses by the judge of the Court of Chancery who at that time was generally a member of the clergy. The rules under which uses were first governed were likewise borrowed from the civil law. The . same jurisdiction over uses was assumed by the chancellor as had vested in the praetor fidei commissa- rius; and in enforcing this jurisdiction the writ of sub- poena of the common law courts was adopted to oblige the feoffee to attend in court and disclose his trust.*'' he was required, cestui que use a particular chancellor only for had no remedy at all, until about uses, who was called praetor fidei the time of Augustus Caesar, there commissarius; and not long after, grew In custom a flattering form the inconvenience of them being of trust, for they penned it thus: found, they resorted unto a remedy Rogo te per salutem Augustl, or much like unto this statute; for per fortunam Augustl, etc.; where- by two decrees of senate, called upon Augustus took the breach of Senatus Conaultum Trebellianum trust to sound in derogation of et Pegasianum, they made cestui himself, and made a rescript to que use to be heir in substance." the praetor to give remedy in such cases. Whereupon within the '' ^ Bl. Com. *327, *328 ; 4 Kent Com. *289, *290, 37 fast, as they were forced to have 393. space of one hundred years, these trusts did spring and speed so 37 3 Reev. Hist. 192; 1 Cru. Dig. ORIGIN AND DEVELOPMENT. 13 Under the doctrine of uses one person had the right to the rents and profits of land while the legal seisin and possession was in another. The owner of lands would convey them by feoffment, with livery of seisin, to some person competent to take the title, with a secret under^ standing that the lands should be held by the feoffee to the use of the feoffor or some other person. The feoffee took the legal title charged with the use which could be enforced in chancery.^* A use could be created to commence in futuro, it was inheritable and could be devised by will.** A use could be created without noto-.- riety; it could be alienated by any species of deed or,' writing, except a feoffment and livery, no words of limi-L tation being necessary.*" Uses, not being held in tenure,[ were not subject to the rules of the common law. § 13. Statute of Uses, Its Purpose. This method of conveyance became very popular, with the consequence that many frauds against the legal rights of others were committed under its guise.*^ To suppress uses as a means of evading the statutes of mortmain, the statute of 15 Eichard II, ch. 5, was enacted, but the many other abuses continued. This led finally to the passage qf the Statute of Uses, the preamble of the act setting forth the evils which it sought to correct. This statute executed the use ; it converted the equitable inter- est of the cestui que use into a legal estate, transferring the possession to the use and wiping out the intermediate estate of the feoffee, making the cestui que use the legal 38 2B1. Com. *375. 4i i Sugden, Powers (1856) 78; 39 4 Kent Com. *293; Bacon on 1 Perry, Trusts,. §298; 2 Bl. Com. Uses 312; 2 Roll. Abr. 780. •331, *332. 40 Gilbert, Uses and Trusts, *161; Shelley's Case, 1 Coke 93b, 101a. 14 COMMENTARIES^ON THE LAW OF WILLS. as well as the equitable owner of the lands and tene- inents.*2 Opinions differ as to the purpose of the Statute of Uses, whether to entirely abolish uses, whether to take the jurisdiction of lands out of the court of chancery, or whether to convert equitable into legal estates. What- ever the design of the statute, it did not abolish uses, but only the intervening legal estate. It did, however, bring forth new methods of conveyance which were contrary to the rules of the old law, for it became necessary only to raise a use in order to convey lands without livery of seisin or record. There were other consequences. As the cestui que use had the legal title, the courts of the common law assumed jurisdiction; and as the seisin of the cestui que use made the use and the land one and the same, the land could not be devised by will and was sub- ject to the rights of dower, curtesy and escheat.*^ § 14. Statute of Uses, Its Effect. Uses, however, were not destroyed by the Statute of Uses. The peculiar qualities of conveyances to uses caused judges, in construing them, to depart from the strict and simple rules of the common law.** The statute was strictly construed by the courts of law. It was held, for instance, that the statute executed only those uses which were in esse, and therefore did not execute contin- gent or springing uses, executory devises or powers over uses, all of which were foreign to the notions of the com- mon law ; also that a use limited upon a use was void and the statute would execute only the first use.*^ The stat- 42 27 Henry VIII, ch. 10 (A. D. a 2 Bl. Com. *334. 1535); 2 Bl. Com. *333, *375; 4 45 Gilbert, Uses and Trusts, Kent Com. •294. *161; Daw v. Newborough, Com- 43 2 Bl. Com. 'SSS; 4 Kent Com. yns 242: Burchett v. Durdant, 2 ♦294. Vent. 311; Chudlelgh's Case, 1 ORIGIN AND DEVELOPMENT, 15 ute did not include terms for years or chattels real be- cause the holder of the term was not seized.** But al- though the statute did not execute such uses, yet there was a trust which should be fulfilled; therefore equity stepped in and held that although such uses were void at law, they were good in equity. Thus uses disappeared and in their place arose the system of trusts as it now exists.*'" § 15. Statute of Wills Enacted Under Henry VIII. The Statute of Uses, as has been shown, prevented lands from being devised by any of the forms which the act covered. What the ultimate effect would have been is unknown, for five years later, A. D. 1540, the Statute of Wills was enacted.** This law granted the Coke 120a, 126a, 136b; Tyrol's Case, Dyer 155a; Hopkins v. Hop- kins, 1 Atkyns 581, 591; Wyman v. Brown, 50 Me. 139, 157; Croxall v. Shererd, 5 Wall. 268, 282, 18 L. Ed. 572. j 46 Bacon, Law of Uses, 335; Dyer 369a. I 47 4 Kent Com. *302; 2 Bl. Com. *336; Hopkins v. Hopkins, 1 At- kyns 581, 591. I 48 32 Henry VIII, ch. 1, entitled "The act of wills, wards and pri- mer seisins, whereby a man may devise two parts of his land." This was followed by the statute of 34 and 35 Henry VIII, ch. 5, entitled "The bill concerning the explanation of wills." Various statutes were subsequently en- acted which dealt with the sub- ject of wills. It would serve no beneficial purpose to set them forth in full, therefore they will be referred to only by title. They are the statute of 10 Charles II, sess. 2, ch. 2, entitled "An act how lands, tenements, etc., may be disposed by will or otherwise, and concerning wills and primer sei- sins"; sections 5, 6, 12, 19, 20, 21 and 22 of the statute of 29 Charles II, ch. 3, entitled "An act for pre- vention of fraud and perjuries" ; a portion of the statute of 7 Wil- liam III, ch. 12, entitled "An act for prevention of fraud and perju- ries"; section 14 of the statute of 4 and 5 Anne, ch. 16, entitled "An act for the amendment of the law and the better advancement of justice," and the statute amend- ing the same, 6 Anne, ch. 10, which related to witnesses to nun- cupative wills; section 9 of the statute of 14 George II, ch. 20, en- 16 COMMENTARIES ON THE LAW OP WILLS. right to all persons seized of lands in fee-simple, except married women, infants, idiots and those of non-sane memory, by a will and testament in writing, to devise to any other person two-thirds of their lands held in mili- tary tenure and all their lands held in socage. Corpora- tions were precluded from being devisees in order to prevent gifts in mortmain. This restriction on corpora- tions was modified by the construction given the statute titled "An act to amend the law concerning common recoveries, and to explain and amend an act made in the twenty-ninth year of the reign of King Charles the Second, entitled 'An act for pre- vention of frauds and perjuries,' " which related to estates pur autre vie; the statute of 25 George II, ch. 6, entitled "An act for avoid- ing and putting an end to certain doubts and questions relating to the attestation of wills and codi- cils concerning real estates in that part of Great Britain called Eng- land, and in his Majesty's colonies and plantations in America, ex- cept so far as relates to his Maj- esty's colonies and plantations in America"; the statute of 25 George II, ch. 11, entitled "An act for the avoiding and putting an end to certain doubts and questions re- lating to the attestation of wills and codicils concerning real es- tates"; and also the statute of 55 George III, ch. 192, entitled "An act to remove certain difficulties in the disposition of copyhold es- tates by will." The above men- tioned statutes, or the portions thereof which related to testa- mentary dispositions of property, were repealed by the Statute of Wills, 1 Vict., ch. 26, and are especially enumerated therein. The last mentioned statute was passed A. D. 1837, long after the independence of these United States, and after the various colo- nies and states had enacted laws regarding the testamentary dispo sition of property. Many of the provisions of the Statute of Wills, 1 Vict., ch. 26, were taken directly from the earlier statutes on the same subject; but laws regarding wills were adopted in the United States long prior thereto and were based upon the earlier statute of Henry VIII, ch. 5, and the acts which followed, explained or modi- fied or extended it. In speaking of the original Statute of Wills, we find the following note in Kent's Commentaries: "The stat ute of wills, or a substitute for it, has been adopted throughout the United States; but not its pre- amble, either in letter or spirit. That preamble is a curiosity, as being a sample of the most de- grading and contemptible servility and flattery that ever were heaped ORIGIN AND DEVELOPMENT. 17 43 Eliz., ch. 4, it being held that a devise to a corporation for a charitable use was not a bequest, but was in the nature of an appointment and valid.*® This construction was changed by a subsequent statute.^" Upon the restora- tion of Charles II, military tenures, with the accompany- ing prerogatives of the over-lord, were abolished,^^ and from that time the right of devising freehold estates in lands was fully recognized in England. The Statute of Wills was passed in 1540, while military tenures were not abolished until 1660, so the feudal law in all its strictness existed in England for more than a century after the Statute of Wills was passed. Under the feudal law a tenant could not alienate his estate without the consent of the lord, this feature being a necessary element of the system in order that the lord might be secure in a tenant who could render him proper service. The right to devise was opposed to the ideas of the feudal system and for more than a century the Statute of WiUs had to contend with this adversary and with the principles which it had made a part of the law of England. § 16. Statutes of Uses and of Wills as Affecting the Construc- tion of Wills. There has been some conflict of opinion as to whether a devise to use should take effect according to the Stat- ute of Wills, or whether it should be construed according to the rules laid down under the Statute of Uses. Justice Blackstone says that a will of lands made under the statutes granting that right, was considered by the courts of law more as a conveyance declaring the uses to which by slaves upon a master." — i Kent so 9 Geo. II, ch. 36. Com. •504, note c. 5i 12 Charles II, ch. 24 (A. D. 49 Flood's Case, Hobart 136. 1660). 1 Com. on Wills— 2 18 COMMENTARIES ON THE LAW OF WILLS. the land should be subject than in the nature of a testa- ment, with the difference that witnesses to deeds were not required to subscribe the instrument as in the case of wills. He further says that the distinction between devises of land and testaments of personal property was founded upon the idea that a devise was a species of conveyance ; that whUe the latter disposed of all personal chattels the testator owned at the time of his death, de- vises of real estate operated only on lands owned at the time of the execution of the will and not on after-acquired real property unless the will was republished."^ Mr. Jarman states the better opinion is that a devise to uses operates by force of the Statute of Wills concurrently with the Statute of Uses."* Mr. Washburn says that ' ' estates created by will are governed by the rules derived from the Statute of Uses, the legal estate being trans- ferred to the use in the same mode as by the operation of that statute.""* It has been shown that the Statute of Wills gave the right to devise lands and the construction of the statute is that the intent of the testator, if lawful, should be carried out; but the law also supported convey- ances to use on the supposed intent of the party."" The 62 2 Bl. Com. *378, *379; Arthur 1 Vict, ch. 26, and in the United V. Bokenham, 11 Mod. 148; Bunter States by statutes in nearly all of V. Coke, 1 Salkeld 237; Butler and the various states.) Baker's Case, 3 Coke 25a; Brydges 53 2 Jarman, Wills, *1137, *1138. V. Duchess of Chandos, 2 Ves. Jun. 54 2 Washburn, Real Prop. (6th 417, 427; Broome v. Monck, 10 Ves. ed.), § 1394. Jun. 597, 605; Pigott v. Waller, 55 Arthur v. Bokenham, 11 Mod. 7 Ves. Jun. 98; Miles v. Bowden, 148, 154: "Wills should receive 3 Pick. (Mass.) 213; Kip v. Van such a construction as convey- Courtland, 7 Hill (N. Y.) 346. ances by way of use, and they (Note— This rule of the common should imitate such conveyances, law that a will devising lands gen- because it appears that that Act erally did not Include real prop- of Parliament of Wills (32 Hen. erty subsequently acquired, was VIII, ch. 1), was made to supply changed in England by the Statute the powers of declaring uses by ORIGIN AND DEVELOPMENT. 19 principles laid down under the Statute of Uses were affected by the intent of the testator, the question arising as to whether feoffee to use or trustee had an active duty to perform in connection with the property devised, or whether he was merely a passive link in the chain of title. In the first instance a trust obligation was imposed which it was the duty of the trustee to fulfill, while in the other case the statute could execute the use. It therefore appears that the Statute of Wills gave the right to devise lands which passed according to the rules laid down under the Statute of Uses, influenced and modified by the construction of the statutes granting the power. In some of the United States the Statute of Use^ has been held to be inoperative because legislative enact- ment has limited all uses and trusts to those specifically allowed ; in other states it has been accepted either as a part of the common law or by re-enactment, at least to the extent of executing a passive trust. § 17. Statute of Frauds, Its Purpose. The prevention of fraud in connection with the aliena- tion of lands by deed or devise, led to the Statute of Frauds.^* Before this most any writing of a person might be allowed as a will. This statute required that all devises of lands^'^ should be in writing, signed by the testator or by some one for him and at his request and in his presence, and should be subscribed by three or four credible witnesses in his presence. Eevocation could be accomplished only by some written will or codicil or men's last wills and testaments, 4a; Burchett v. Durdant, 2 Vent. whlcli they had before the Statute 311, 312. 27 Hen. VIII, ch. 10, of Uses." See, 56 29 Charles II, ch. 3 (A. D. also, Gilbert, Uses and Trusts, 1677). •162; Vernon's Case, 4 Coke la, 57 Nuncupative wills were so re- 20 COMMENTARIES ON THE LAW OF WILLS. other writing declaring the same, or by burning, can- celling, tearing or obliterating the devise by the testator himself or by some one in his presence and at his direc- tion and with his consent. It was at first held that neither legatees nor creditors, where legacies or debts might be a charge upon the lands of the deceased, were competent witnesses to a will; this, however, was changed by the statute which allowed legatees and creditors to be wit- nesses, but declared that legacies to witnesses were void.^* § 18. Testaments of Chattels Under the Statute of Frauds. The Statute of Frauds, by its fifth section (29 Charles II, ch. 3, A. D. 1677), prescribed certain formalities with respect to the signing and attestation of witnesses to devises of lands, but testaments of personal property were not included in its scope. Until subsequently required by statute, a testament of personal property needed no witnesses of its publication. If in the testator's hand- writing, providing of course there was sufficient proof of that fact, a will of chattels was good even though it did not bear the testator's name or seal and no witnesses were present at its publication.^* Such a testament was likewise valid even if written by another and not signed by the testator, providing it could be shown to have been according to his instructions and approved by him.®** § 19. Statute of Wills Enacted Under Queen Victoria. The Statute of Wills*^ enacted in the first year of the reign of Queen Victoria repealed all former acts in con- stricted by the statute as to be in B9GodoIpli, p. 1, ch. 21; Gilb. effect inhibited; however, soldiers Rep. 260. in actual service and mariners at eo Limbery v. Mason and Hyde sea could dispose of personal prop- ^ comyns 452-454. erty the same as before. 58 25 Geo. II, ch. 6 (A. D. 1752). " ^ ^'^t., ch. 26 (A. D. 1837). ORIGIN AND DEVELOPMENT. 21 flict with it. It referred to both real and personal prop- erty of which the testator might be seized or possessed at the time of his death. It prescribed that no will could be made by a person under the age of twenty-one years,**^ or by a married woman ;®^ that the will had to be in writing, signed at the end thereof by the testator or by some other person in his presence and at his direction; that such signature be made or acknowledged by the testator in the presence of two or more witnesses who had to attest and subscribe the will in the testator 's pres- ence;** that soldiers in actual military service and mari- ners at sea could dispose of personal property as be- fore f^ that all devises or bequests in favor of subscribing witnesses, their husbands or wives, or any person claim- ing under them, were void, but the validity of the will otherwise was not necessarily affected f^ that creditors*^ and executors** were competent witnesses; that every will was revoked by the subsequent marriage of the testator except certain wills made in the exercise of a power of appointment ;*' that wills were not revoked be- cause of any presumption of an intention on the ground of alteration of circumstances;'^'* that revocation could only be accomplished by a writing executed with like formality or by destroying the will with the intention to revoke. '^^ § 20. Military Tenure Never Recognized in the United States. In the United States military tenures or the principles growing out of the feudal system have never been recog- 62 Id., § 7. 67 Id., § 16. 63 Id., §8. 68 Id., §17. 64 Id., § 9. 69 Id., I 18. 65 Id., § 11. 70 Id., § 19. 66 Id., § 15. 71 Id., § 20. 22 COMMENTABIES ON THE LAW OF WILLS. nized as a part of the common law and therefore "have not influenced the law of wills. The power of testamentary- disposition exists generally without limitation as to the character of the property. Eestrictions as to the manner of execution, the age and mental capacity of the testator, and the like, are regulated by the statutes of the various states, but are founded upon the legislation of England except where the civil law has exerted its influence, as in Louisiana where the rules have been adopted from the French Civil Code which in turn was based on the Eoman law. §21. Testamentary Disposition a Statutory Power. In considering the subject of wills, while the power of disposing of property by will exists generally with but few limitations, this power is neither a natural nor a con- stitutional right, but depends wholly upon statute and may be conferred, regulated, limited or taken away, in whole or in part, by legislative enactment. '^^ 72 Brettuu t. Fox, 100 Mass. 234. CHAPTER n. THE NATURE OF WILLS AND DEFINITIONS OF TERMS. § 22. Definition of the term "will." § 23. Definition of the term "codicil." § 24. Common use of the term "last will and testament." § 25. Early conception of the term "testament." § 26. Alienation of real and personal property governed by different rules. § 27. Construction of the Statute of Wills enacted under Henry VIII. § 28. A devise of lands did not transfer real property acquired subsequent to its execution. § 29. Feudalism caused wills of land to be viewed differently from those of personalty. § 30. Changes wrought by the Statute of Wills, 1 Viet, ch. 26. § 31. The definition of various terms. §22. Definition of the Term "Will." The definition of the term "will" must necessarily be short, otherwise it would be simply a statement of par- ticulars, yet it must be broad enough to include all classes of wills. The Eoman lawyers defined the term as "the legal declaration of a man 's intentions, which he wills to be performed after his death. "^ It would be difficult to improve on this definition, for "legal declaration" means that the directions given must be in the form r^- quired by law, and "intentions" refers to a true intent which necessitates a sound mind and memory xmaffected by fraud, duress or undue influence. 1 2 Bl. Com. *499. Modestinus tia de eo, quod quls post mortem thus expressed it: "Testamentum suam fieri velit." — Dig. 28, 1. 1. est voluntatis nostra justa senten- (23) 24 COMMENTABIES ON THE LAW OP WILLS. Cliancellor Kent says "a will is a disposition of real and personal property to take effect after the death of the testator. "2 A will might more appropriately be said to be the instructions as to the manner of the disposition, yet the definition is still objectionable because a will does not necessarily dispose of property. If the testator, in legal form, merely nominates an executor without giving a legacy or devising any part of his estate, he neverthe- less has made a will.* The definition also lacks the feat- ures of "legal declaration" and " intent. '^' Mr. Jarman says "a will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life."* Although a will is gener- ally in the form of a written instrument, yet there is the oral or nuncupative will which is not included in the defi- nition. The objections given will also apply to other definitions, such as: "A last will and testament may be defined, as the disposition of one's property, to take effect after death,"* or "a will or testament is a lawful ■ voluntary disposition, of property, to a competent donee, by any one competent, and to take effect upon the death of the testator, unless sooner revoked."* A definition of the term "will" should include all feat- ures without involving details. First comes the intent, which must be true and lawful. If the will is revoked, the intent ceases to exist. It must be the intent of a per- son authorized by law to make a will. The intent must 2 4 Kent Com. *501. Pac. 118; Joliffe v. Fanning, 10 3 O'Dwyer v. Geare, 1 Sw. & Tr. Rich. (S. C.) 186; Prater v. Whit- 465; In re John's Will, 30 Ore. 494, tie, 16 S. C. 40. 36 L. R. A. 242, 47 Pac. 341; Bar- 4 Jarman, Wills, *18. her V. Barher, 17 Hun (N. Y.) 72; 6 1 Redfleld, Law of Wills, p. *5. In re Hickman, 101 Cal. 609, 36 e Rood, Wills, § 46. NATUEE OF WILLS AND DEFINITIONS. 25 be expressed in legal form, oral or written, as the case may be. The subject matter is the estate of the person, which estate can be affected by such intent properly expressed, only after the death of the testator. The term may be thus defined. A will is the lawful intent of a competent person, legally expressed, regarding his estate and effective after his death. §23. Definition of the Term "Codicil." A codicil is a supplement to a will. Its derivation is from the Latin codicillus, a diminutive form of codex, thus representing a small will. It must be executed with the same solemnity as a will. It is added to the will after its execution, the purpose usually being to alter, enlarge or restrain the provisions of the will, or to ex- plain, confirm and republish it. It does not supersede the will, as an after made will would do, but is a part of it, to be construed with it as one instrument.'' It is not a revocation of the former will except to the extent that its provisions are inconsistent with it, unless the intent to revoke be expressed.® § 24. Common Use of the Term "Last Will and Testament." The term "testament" is of Latin origin, from testa- mentum, or testatio mentis, or testor, according to vary- ing authorities, but the conflict of opinion is immaterial since the ultimate meaning evolved is that it is final testi- mony of a party, or his declaration of intention or will. Testamentum or testament is the term we find exclu- sively used in the old Civil Law and by its early writers. The expression "will" is of English or Saxon origin 7 Green v. Lane, 45 N. C. 102; 371; Dunham v. Averill, 45 Conn. Lamb v. Lamb, 11 Pick. (Mass.) 61; 29 Am. Rep. 642. 8 4 Kent Com. *531. 26 COMMENTAEIES ON THE LAW OP WILLS. and its use is confined to those countries where English jurisprudence prevails either directly or as the founda- tion of the law. The expression, however, most com- monly employed to designate the instrument which makes a testamentary disposition of real and personal property is that of "last will and testament." §25. Early Conception of the Term "Testament." A testament, strictly speaking, concerned only per- sonal property and was under ecclesiastical jurisdiction. According to the Canon Law it might have been made by a person of the age of fourteen years. It was admin- istered by an executor who could not act until granted letters testamentary.® A testament, according to the Civil Law, was the appointment of an executor or testa- mentary heir according to prescribed formalities.^" By the Roman law the will constituted the heir and was the appointment of him. He was the same person as was afterward known in the English law as the executor. The nomination of an heir was so essential an ingredient of the Roman testament that there could be no complete will without him, and from his name and office he was considered, at the death of the testator, as the universal successor to all the rights and property of the deceased without regard or distinction as to whether the property had been acquired by the testator prior or subsequent to the time of making his will.^^ Under the early English law a testament was invalid unless an executor was ap- pointed,^^ but the designation could be by express words 9 2 Bl. Com. *501, *502; Conklin ii Hogan v. Jackson, 1 Cowp. V. Egerton's Admr., 21 Wend. 299. (N. Y.) 430. 12 Swinburne, Wills, pt. 1, s. 3, loDomat, pt. 2, llv. 1, tit. 1, s. 1. I. 19; 2 Bl. Com. *503; Woodward NATURE OP WILLS AND DEFINITIONS. 27 or by implication where the same was strongly shown. "^^ This rule, however, has long since ceased to prevail, and in the event of the failure of the testator to appoint an executor, or the refusal or inability of the appointee to act, the court will grant letters of administration with the will annexed to some proper person.^* § 26. Alienation of Real and Personal Property Governed by Different Rules. Properly speaking the word "devise" means a testa- mentary disposition of lands.^^ Real property could be disposed of by will only because of the permission given by statute. As to personal property, the law of England adopted the rules of the Roman testament, but a devise of land was considered in a different light from the Roman will. A will in the civil law was an appointment of the heir, but a devise in England was an appointment of particular lands to a particular devisee and was con- sidered by the courts in the nature of a conveyance by way of appointment,^® or as a conveyance declaring the uses to which the land should be subject.^'' It was a con- veyance by statute, unkaown to the feudal or common law and not subject to the same jurisdiction as were testa- ments of personal property.^® Because of this construc- tion it was held that no man could devise lands which he did not own at the date of the publication of the will; V. Lord Darcy, Plowden 184, 185: isFetrow's Estate, 58 Pa. St. "Without an executor a will is 424; Conklin v. Egerton's Admr., null and void." 21 Wend. 430. 13 2 Bl. Com. *503. is Harwood v. Goodright, 1 Cowp. 14 2 Bl. Com. *503, *504; Bar- 87,90. ton's Estate, 52 Cal. 538; Brady v. 17 2 Bl. Com. *378. McCrosson, 5 Redf. (N. Y.) 431; is 2 Bl. Com. *501; Conklin V. Smith V. Smith, 168 111. 488, 500, Egerton's Admr., 21 Wend. 430. 48 N. B. 96. 28 COMMENTAEIES ON THE LAW OF WILLS. thus subsequently acquired real property would not be included.^^ As to personal estate, however, a testament operated upon everything possessed by the testator at the time of his death. §27. Construction of the Statutes of Wills Enacted Under Henry VIH. The Statute of Wills, 32 Henry VIII, ch. 1, provided that every person "having" any manors, lands, tene- ments, or hereditaments, etc., should have "full and free liberty, power and authority" to give, dispose, will, and devise, as well by his last will and testament, in writing, or otherwise by act or acts lawfully executed in his life, all his said nianors, lands, tenements or hereditaments, or any of them at his free will and pleasure; any law, statute, or other thing heretofore had, made, or used, to the contrary notwithstanding. The statute of 34 Henry VIII, ch. 5, which explained the former act, used the words "having a sole estate" or interest in fee simple of and in any manors, lands, rents, or other heriditaments, in possession, reversion or remainder. The amount of the estate "holden of the king's highness in chief by knight service or of the nature of knight service in chief" that was devisable under the statutes was as much as should amount to the yearly value of two parts in three parts to be divided, saving and reserving to the king as much of the same as should amount and extend to the full and clear yearly value of the third part thereof. In construing these statutes considerable importance was given to the wording of the acts. It was decided that i9Hogan V. Jackson, 1 Cowp. 361. (Note — This rule was abol- 299; Bunter v. Coke, 1 Salkeld ished by statute, I Vict., ch. 26, 237; Arthur v. Bokenham, 11 Mod. § 3.) 148; Pistol V. Eiccardson, 3 Doug. NATURE OF WILLS AND DEFINITIONS. 29 the word "having" imported owner ship and time of own- ership, therefore the devisor ought to have the land at the time of the making of the will.^" It was held that the word "sole" required that the testator have the sole estate in the land, in the part which he left to descend to his heir as well as in the land which he devised. The right of devising two parts of a clear yearly value was construed to mean that if the inheritance was not of any annual value it should not be devisable under the statute.^^ The words "shall have full and free liberty, power and authority, by will, to devise of two parts of said manors," were held to have shown that the act intended to give the right to devise, but that without question an estate which could not under the rules of the common law be conveyed by an act executed by the owner in his lifetime under advice of counsel learned in the law, could not be devised by the will of a man who is intended in law to be without advice of counsel.^^ §28. A Devise of Lands Did Not Transfer Real Property Acquired Subsequent to Its Execution. That a devise did not transfer lands acquired after its execution was the settled law in England from a very early date, and it has been held that the rule did not depend upon the construction of the Statutes of Wills, but that the rule prevailed prior to the statutes where lands were devisable by custom. The rules of the com- mon law did not allow a person by any conveyance to dispose of lands in which he had no right or interest 20Bunterv. Coke, 1 Salkeld 237; 22 Corbet's Case, 1 Coke 77b, Arthur v. Bokenham, 11 Mod. 148. 85b; Butler and Baker's Case, 3 21 Butler and Baker's Case, 3 Coke 25a. Coke 25a; Leonard Lovies's Case, 10 Coke 78a, 84a. 30 COMMBNTAEIES ON THE LAW OF WILLS. at the time of making and executing the conveyance.^^ Although a will did not take effect until the death of the maker, yet the law required many qualifications of the testator at the time of the making of his will. As to the vesting of the estate in the devisees, the law had regard only for the time of the death of the party, for no estate could vest in a devisee during the life of the testator. But consideration had to be given to the fact that the law required power and capacity to make a will, and as to such requirements the law had regard to the time of execution. Therefore if a party had noth- ing to dispose of, he could not be said to have had the power of disposing of it, for he must have had the inter- est in the thing to he disposed of as well as the power of disposition.^* The ownership of the testator was required by the law to continue to the time of his death, for any alteration in his interest was an actual revocation.^^ The republica- tion of a will, executed with all proper solemnities, was in effect a re-execution and the will was effective as of such date. A codicil, duly attested, annexed to the wiU or referring to it, even though it expressed no inten- tion to republish the will and though it related to personal property only, was taken as a part of the will and oper- ated as a republication, so that lands acquired by the testator between the dates of the will and the codicil 23 Arthur v. Bokenham, 11 Mod. Coke 25a; Monypenny v. Bristow, 148; Hunter v. Coke, 1 Salkeld 2 Russ. & My. 117; Thellusson v. 237; Brydges v. The Duchess of Woodford, 13 Ves. Jun. 209; Arthur Chandos, 2 Ves. Jun. 417, 427; Har- v. Bokenham, 11 Mod. 148; Brydges wood V. Goodright, 1 Cowp. 87; v. Duchess of Chandos, 2 Ves. Jun. George v. Green, 13 N. H. 521. 417, 427; Milnes v. Slater, 8 Ves. 24 Arthur v. Bokenham, 11 Mod. Jun. 295, 305; Broome v. Monck, 148; Bunter v. Coke, 1 Salkeld 237. 10 Ves. Jun. 597, 605. 25 Butler and Baker's Case, 3 NATURE OF WILLS AND DEFINITIONS. 31 passed under the will.^* If the testator devised his estates and effects, both real and personal, which he should die possessed of, interested in or entitled to, upon certain trusts for the benefit of an heir, and after the execution of the will he purchased lands, the heir could be required to elect whether he would claim the after acquired lands or the benefits under the will.^^ § 29. Feudalism Caused Wills of Land to Be Viewed Differ- ently from Those of Personalty. "When the feudal system prevailed in England, the common law appointed no heir on whom the personal property should descend, and if the owner died intestate, it went to the church. A testament was therefore the appointment by the testator of an heir to his personal property, the law not making such an appointment. The executor stood in the relation of the testator to such property and was entitled to all of it, the law not giving it to any other person. The only limitation upon his rights was that the property was subjected in his hands to the trusts of the testator.-* As to lands under the feudal system, when feuds be- came inheritable the law appointed an heir who in his own right acquired an inchoate title upon the acquisition of an inheritable interest in land by his ancestor. He was the successor to the title, or heir presumptive. A 26 Goodtitle d. Woodhouse v. 27 Churchman v. Ireland, 4 Sim. Meredith, 2 Maul. & S. 5; Acherly 520, affirmed in 1 Russ. & My. 250; V. Vernon, 1 Comyns 381; Potter but see City of Philadelphia v. V. Potter, 1 Ves. Sen. 437; Barnes Davis, 1 Wharton (Pa.) 490; Thel- V. Crowe, 1 Ves. Jun. 486; Pigott lusson v. Woodford, 13 Ves. Jun. V. Waller, 7 Ves. Jun. 97; Miles v. 209. Boyden, 3 Pick. (Mass.) 213; Kip 28 George v. Green, 13 N. H. 521. V. Van Cortland, 7 Hill (N. Y.) 346. 32 COMMENTARIES ON THE LAW OF WILLS. devise of lands, therefore, did not take effect in the same manner as a testament of personal property because the latter was the constitution of an heir, whereas the former disposed of lands which otherwise would have vested in the heir. A devise of lands was not an indefinite dispo- sition of everything which the testator might own at his death, as was the case regarding personal property, but was an appointment of a person who should take the spe- cific lands after the death of the person devising them. It was testamentary because fluctuating in its nature and not taking effect until after death, but it was in the nature of a conveyance by way of appointment.^^ The law appointing no heir to take the personal estate of a deceased was a reason why personal property acquired subsequent to the execution of a testament should pass by it, for if it was not transferred by the testament, it would remain uncertain as to who should take such personal estate. With real property no such uncertainty existed, for the law appointed an heir to take a freehold of inheritance upon the death of the ancestor. Even after the rigor of the feudal law had relaxed, it was held that a devise of lands would not include real prop- erty acquired by the testator after the making of his will because the common law did not comprehend a legal conveyance of what a man should acquire in the future.^" This same rule formerly prevailed in the United States.^^ 29 Brydges v. Duchess of Chan- 3i George v. Green, 13 N. H. 521; dos, 2 Ves. Jun. 417, 427; Howe T. Brewster v. McCall's Devisees, 15 Earl of Dartmouth, 7 Yes. Jun. 137, Conn. 274; Jackson v. Potter, 9 147; Milnes v. Slater, 8 Ves. Jun. Johns. (N. Y.) 312; Hays v. Jack- 295,305; Broome v. Monck, 10 Ves. son, 6 Mass. 149, 156; Livingston Jun. 597, 605; George v. Green, v. Newkirk, 3 Johns. Ch. (N. Y.) 13 N. H. 521. 312; Minuse v. Cox, 5 Johns. Ch. soHogan t. Jackson, 1 Cowp. (N. Y.) 441, 9 Am. Dec. 313; Bal- 299; Hunter v. Coke, 1 Salkeld 237. lard v. Carter, 5 Pick. (Mass.) 112, NATURE OF WILLS AND DEFINITIONS. 33 § 30. Changes Wrought by the Statute of Wills, 1 Vict., ch. 26. By the Statute I Vict., ch. 26, s. 3, it was declared lawful for every person to devise, bequeath, or dispose of, by his will executed in the manner required by the act, all real and personal estate which he should be entitled to, either at law or in equity, at the time of his death, notwithstanding that he may have become entitled to the same subsequent to the execution of his will. Stat- utes to this effect have been enacted in practically all of the states of the United States. ' § 31. The Definition of Various Terms. A "devise," strictly speaking, means a testamentary disposition of lands, while "bequest" and "legacy" are words properly referring to such a disposition of per- sonalty. A "legatee" is a person to whom a bequest is made.^^ These words, when used in wills, are pre- sumed to have been used in their legal sense unless from the context it clearly appears to the contrary.*^ It is an established principle of construction that in doubtful cases it is best to apply to such words their technical meaning, on the presumption that the testator used them in their legal sense. This rule, however, like all others, must give way if it clearly appears that he understood and used them in a more popular sense.^* Where the in- 16 Am. Dec. 377; Varick v. Jack- 33 Coard v. Holdemess, 20 Beav. son, 2 Wend. (N. Y.) 166, 19 Am. 147; Thellusson v. Woodford, 4 Dec. 571. Ves. Jun. 227, 329; Scholle v. 32 Sheppard v. Duke, 9 Sim. 567; Scliolle, 113 N. Y. 261, 21 N. E. 84; Fetrow's Estate, 58 Pa. St. 424; Lasher v. Lasher, 13 Barb. (N. Y.) Browne v. Cogswell, 5 Allen 106. (Mass.) 556; Probate Court v. 34 Fetrow's Estate, 58 Pa. St Matthews, 6 Vt. 269 ; Nye v. Grand 424. Lodge A. O. U. W., 9 Ind. App. 131, 36 N. E. 429. I Com. on Wills — 3 34 COMMENTAEIES ON THE LAW OP WILLS. tention of the testator clearly appears, it will control the legal operation of the words, no matter how technical they may be.*^ Thus by force of the context of the will the word "legacy" has been held to apply to realty;*® the term "devise" has been held to refer to personalty only;*'^ the term "bequest" has been held synonymous with devise;'* the "residuary legatee" has been held, by interpretation, to take the residue of both the real and personal estate;'* and the word "effects" may include real estate if, from other expressions used in connection with the term, it would appear that such was the inten- tion of the testator.*" The expressions, however, which are found in wills, vary greatly in character, and the intention of one testator to be collected from one set of words offers no rule for discovering the meaning of another man who uses a different set of words.*^ 36 Jesson V. Wrigtt, 2 Bllgh 1; 38 Dow v. Dow, 36 Me. 211. Woollam V. Kenworthy, 9 Ves. Jr. 39 Hardacre v. Nash, 5 T. R. 716 137; Hall V.Hall (1892), 1 Ch. 361; Day v. Daverson, 12 Sim. 200 Doe V. Tofield, 11 East 246; Roe v. Evans v. Crosbie, 15 Sim. 600 Pattlson, 16 Bast 221; Ladd v. Har- Laing v. Barbour, 119 Mass. 523 vey, 21 N. H. 514. Evans v. Price, 118 111. 593, 8 N. E. 36 Hardacre v. Nash. 5 T. R. 854. 716; Bacon V. Bacon, 55 Vt. 243. 40 Camfield v. Gilbert, 3 East 37 Coope V. Banning, 1 Sim. & 516. Stu. 534; Oothout v. Rogers, 13 4i Camfield v. Gilbert, 3 East 515. N. y. Supp. 120. CHAPTEE in. CiliASSIFICATION AND POEM OF WILLS. § 32. Written and oral wills. § 33. Four classes of written wills. § 34. The term "alternative" or "double" as applied to wills. § 35. No technical form is essential to the yaJidity of a will. § 36. The materials used in the making of wills may be of vari- ous characters, permanency being the principal require- ment. § 37. Experts may decipher illegible writing or interpret for- eign wiUs. § 38. The language of a will may be suggested by others, but it must express the intent of the maker. § 39. It is not necessary that the testator use words of command or direction. § 40. The date and attestation clause should be set forth in wills. Benefits thereof. § 41. Statutes prescribing formalities of execution must be con- sidered. § 42. The question of the character of an instrument may be of vital importance. § 43. The determination of the character of an instrument affects substantial rights. § 44. Writings in the form of deeds, notes, letters, assignments and the like, have been admitted to probate. § 45. Features which distinguish a will from other instruments. § 46. The true test of a will is testamentary intent to pass property after the death of the maker. § 47. The same subject : Notes of a will to be thereafter drawn up sometimes admitted to probate. § 48. Courts will carry out the intention of the maker if it can lawfully be done. (35) 36 COMMENTARIES ON THE LAW OF WILLS. § 49. An instrument may be construed as a will although not so intended by its maker. § 50. The language of an instrument as showing the intent of the maker. § 51. In determining the legal character of an instrument the court will be guided by its provisions together with sur- rounding circumstances. § 52. Evidence of surrounding circumstances limited to the pur- pose of ascertaining intent. § 53. Parol declarations may be received as part of the res gestcB. § 54. Extrinsic evidence as affecting the question of revocation. § 55. Distinction between a will and a declaration of trust. § 56. Distinction between a will and a deed. § 57. The same subject : If the instrument becomes operative before the maker's death, it is not a will. § 58. The same subject : The provisions of an instrument as show- ing its character. § 59. The same subject : Various provisions construed. § 60. An instrument may in part be effective, both as a deed and as a will. § 61. Instruments testamentary in character are invalid unless executed as required by the law of wills. § 62. An instrument may be void both as a deed and as a wiU. § 63. Courts will not violate the law by changing the express character of an instrument. § 64. The presumption arising where a will consists of several sheets. § 65. Other writings may be incorporated in a will by refer- ence. § 66. The same subject : The writing must have been in existence and clearly referred to. Proof of identity is necessary. § 67. The same subject : Instances of sufficient reference and identification. § 68. The same subject : Instances of insufficient reference and identification. CLASSIFICATION AND POEM. 37 § 32. Written and Oral Wills. Wills are divided generally into two classes, written and oral or nuncupative.^ A written -will, as the name implies, is a written document. It may be, and usually is, prepared by some one witb a knowledge of the law, and executed according to prescribed formalities as to sub- scription by the maker and attestation by witnesses. If entirely written, dated and subscribed by the person whose estate is to pass, it is denominated a holographic or olographic will, witnesses not being required. A nun- cupative wiU is defined to be an oral will declared in the presence of witnesses by a testator in extremis or under circumstances considered equivalent thereto, and after- wards reduced to writing.^ § 33. Pour Classes of Written Wills, Written wills in the United States may be subdivided into four general classes, viz., joint, mutual or reciprocal wills, conditional or contingent wills, duplicate wills and Louisiana testaments. Agreements between parties to make a will have been sometimes dealt with under the head of joint or mutual wills, and although in many in- stances closely allied thereto, they more appropriately should be treated as compacts or contracts rather than as a class of wills. We also have wills which, by their terms, 1 Hubbard v. Hubbard, 12 Barb. 68 Am. Deo. 511; In re Morales, (N. Y.) 148; In re Hebden, 20 N. J. 16 La. Ann. 267. Eg. 473; Sykes v. Sykes, 2 Stewt. 2 2 Bl. Com. *500; Read v. Phil- 364, 20 Am. Dec. 40; Tally v. But- lips, 2 Phillim. 122; Gasklns v. terworth, 10 Yerg. 502; Ex parte Gaskins, 3 Ired. 158; Watts v. Pub- Thompson, 4 Bradf. (N. Y.) 155; lie Admr., 4 Wend. 168; Ex parte Prince v. Hazelton, 20 Joins. Henry, 24 Ala. 638; Devecmon v. (N. Y.) 519, 11 Am. Dec. 307; Devecmon, 43 Md. 335; Brown Stamper t. Hooks, 22 Ga. 606, v. Tilden, 5 Har. & J. 371; Nutt V. Nutt, 1 Frem. Ch. (Miss.) 128. 38 COMMENTAEIES ON THE LAW OF WILLS. become effective only at the election of a third person,^ but such testamentary documents might more properly be called conditional or contingent wills. Also there are wills which are made in the execution of a power, but such instruments are more strictly allied to the law of powers and trusts.* §34. The Term "Alternative" or "Double" as Applied to Wills. The term "alternative" has also been given to testa- mentary documents, as for instance where a testator exe- cuted one will, subsequently executed a second, then later by a codicil provided that if he should die before a certain day the first will should become effective, other- wise the second.'' Such instruments, however, might more properly be called conditional or contingent wills, as one or the other is to take effect upon the happening or not happening of a certain event. Testamentary documents have likewise been referred to as "double" wills, as where two parties in one instrument mutually agree that the survivor shall be the sole heir to all the estate of the other, but such a disposition would ordinarily be classified as joint, mutual or reciprocal wills.® §35. No Technical Form Is Essential to the Validity of a WiU. No technical form is essential to the validity of a will, but if there is any irregularity in the writing propounded 3 Goods of Smitli, L. R. 1 P. & D. Jun. 370; Heyer v. Burger, Hoffm. 717. (N. Y.) 1. i Sing V. Leslie, 2 Hem. & M. 5 In re Hamilton's Estate, 74 Pa. 68; In re Eardley Wilmot, 29 Beav. St. 69. 644; Jones v. Southall, 30 Beav. 6 Evans v. Smith, 28 Ga. 98, 73 187; Rich v. Cockell, 9 Ves. Jun. Am. Deo. 751; In re Cawley's Es- 369; Reld v. Shergold, 10 Ves. tate, 136 Pa. St. 628, 10 L. R. A. 93, 20 Atl. 567. CLASSIFICATION AND FORM. 39 for probate, the court will scrutinize it carefully to ascer- tain "from the form of the paper, from its nature, con- tents, and appearance, whether it was written and in- tended as a formal permanent will, " "or whether it was a deliberative and temporary paper, which expressed the impressions and wishes of the moment, and was never afterwards thought of, or adverted to."'' Although the paper may contain some technical expressions which might convey the idea of a testamentary intention, it is not considered in the nature of a will if it is to become operative at once.* However, if the intention of the maker to dispose of his estate after his death be suffi- ciently manifested and this intention be lawful in itself, the writing, having been executed in accordance with the statutory formalities, will operate as a will whatever its form.® § 36. The Materials Used in the Making of Wills May Be of Various Characters, Permanency Being the Principal Requirement. A will is not invalid by reason of being written in pencil," or being partly or wholly in print, lithographed, 1 Passmore v. Passmore, 1 Phil- (N. C.) 141; Leathers v. Green- lim. 216; Mathews v. Warner, 4 acre, 53 Me. 561; Jackson v. Jack- Ves. Jun. 186. son, 6 Dana (Ky.) 257; Rohrer v. 8 Thompson v. Johnson, 19 Ala. Stehman, 1 Watts (Pa.) 442; 59; Hamilton v. Peace, 2 Desaus. Wheeler v. Durant, 3 Rich. Eq. (S. C.) 92; Robey v. Hannon, 6 (S. C.) 452; Babb v. Harrison, 9 Gill (Md.) 463; Jones v. Morgan, Rich. Eq. (S. C.) Ill, 70 Am. Dec. 13 Ga. 515. 203; Ragsdale v. Booker, 2 Strob. 9 Lawson v. Lawson, 1 P. Wms. Eq. (S. C.) 167 (348 note) ; Means 440; Habergham v. Vincent, 2 Ves. v. Means, 5 Strob. (S. C.) 167; Jun. 204 ; Hall v. Hewer, Ambl. Jacks v. Henderson, 1 Desaus. 203; Robinson v. Schly & Cooper, (S. C.) 543, 554; Brown v. Sohand, 6 Ga. 515; Symmes v. Arnold, 10 1 McCord (S. C.) 409. Ga. 506; Mealing v. Pace, 14 Ga. loin re Dyer, 1 Hagg. Ecc. 219; 596; Allison v. Allison, 4 Hawks s. c, 3 Ecc. Rep. 92; Dickenson v. 40 COMMENTABIES ON THE LAW OF WILLS. or engraved.^^ But a writing on a slate was held in Pennsylvania not to be a good will.^^ The law requires only that a written will be in some permanent form and of such a character that fraudulent erasures and changes may be avoided. The instrument should show on its face that it was the final determination of the testator as to the disposition of his property and not a mere temporary note or memorandum. An act of such a solemn character as the execution of a will would naturally be consum- mated by using materials of a permanent character ; yet on the other hand the exigencies of the case may have been such that the testator was limited in his choice of materials. All such surrounding circumstances are looked into by the courts to determine whether the testator in- tended the writing as a final disposition of his estate or a deliberative and preliminary to a more formal instru- ment.^* Thus where a printed form was filled in partly in ink and partly in pencil, and the writing in ink made sense with the form without help from the writing in pencil, part of which was written over by the ink, the writing in pencil was disregarded.^* And a printed re- Dickenson, 1 Ecc. Rep. 222, s. c, Div. 60; Schneider v. Norris, 2 2 Phillim. 173; In re Mundy, Sw. Maule & S. 286; Henstaw v. Fos- & Tr. 119; s. c, 7 Jur. N. S. 52; ter, 9 Pick. (Mass.) 312; Temple Mence v. Mence, 18 Ves. Jun. 348; v. Mead, 4 Vt. 536. Kell V. Cliarmer, 23 Beav. 195; 12 Reed v. Woodward, 11 Phila. Lucas V. James, 7 Hare 419; Har- (Pa.) 541. rls V. Pue, 39 Md. 535; Myers v. 13 Rymes v. Clarkson, 1 Phillim. Vanderbelt, 84 Pa. St. 510, 24 Am. 22, 35; Parkin v. Bainbridge, 3 Rep. 227; Estate of Knox, 131 Pa. Phillim. 321. St. 220, 17 Am. St. Rep. 798, 6 Compare: Bateman v. Penning- L. R. A. 353, 18 Atl. 1021. ton, 3 Moore P. C. C. 223. Compare: Bateman v. Penning- 1* In re Adams, L. R. 2 P. & D. ton, 3 Moore P. C. C. 223; Phil- 367. See, also, Dickenson v. Dick- brick V. Spangler, 15 La. Ann. 46. enson, 1 Ecc. Rep. 222, s. c, 2 Phil- 11 In re Adams, L. R. 2 P. & D. lim. 173. 367; Dench v. Dench, L. R. 2 Prob. CLASSririCATION AND POHM. 41 siduary clause not read to the testator forms no part of the will/^ although its presence does not invalidate the rest of the paper.^^ §37. Experts May Decipher Illegible Writing or Interpret Foreign Words. The writing of a will should, of course, be legible, but unfortunately the writing of many persons is very diffi- cult to read, in which case it is proper to call in hand- writing experts or persons familiar with the writing of the testator, in order to ascertain the words actually writ- ten. A will may be written in a foreign language; the testator may have been a foreigner residing abroad. The will is simply translated into English, the translation proved and filed of record. The original should likewise be filed for reference in the event of a subsequent dis- pute, otherwise the translated copy is the only one neces- sary to be considered and it can not thereafter be col- laterally attacked.^^ § 38. The Language of a Will May Be Suggested by Others, but It Must Express the Intent of the Maker. A written will must represent the final determination of the testator regarding the disposition of his property; he must sign it "with a knowledge of its contents, but the fact that the phraseology of the instrument is according to the suggestions of his legal adviser,^^ or contains words not used by the testator,^'' does not invalidate the will. 15 In re Duane, 2 Sw. & Tr. 590; prevent a document being declared s. c, 8 Jur. N. S. 752. a will.— In re Silva's Estate, 169 16 In re Oswald, L.. R. 3 P. & D. Cal. 116, 145 Pac. 1015. 162. 18 Landry v. Tomatis, 32 La. 17 Masters v. Masters, 1 P. Wms. Ann. 113. 421; Caulfield v. Sullivan, 85 N. Y. 19 Starrs v. Mason, 32 La. Aan. 8. 153. Incorrect English, does not 42 COMMENTAEIES ON THE LAW OP WILLS. The courts can not view differently the words which a testator uses himself in drawing up his will and the words which are in good faith used by one whom he trusts to draw it up for him. A will may be written in a language not understood by the testator, provided it be drawn in accordance with his instructions and executed with a knowledge of its contents. The situation is the same as in a case where the testator could neither read nor write and could only sign by making his mark. He must nec- essarily depend upon others to incorporate his intentions in the instrument. And the same rule applies where one is blind.^" The attesting witnesses need not understand the language of the will, but they must be able to under- stand the language of the testator and of the attesting clause.^^ Should a certain part of a will have been in- serted therein through fraud, or perhaps inadvertence or mistake, it may be rejected and probate be granted to the remaining portions of the will if they are severable. But where the rejection of one part alters the sense of the remainder it is doubtful whether the instrument can be a valid will.^^ Thus it was held that a natural daughter was not entitled to have the will of her father amended by striking therefrom the words "from and after the 20 Green v. Skipworth, 1 Phlllim. Duane, 2 Sw. & Tr. 590; s. c, 8 Jur. 68; Masters v. Masters, 1 P. Wms. N. S. 752; In re Oswald, L. R. 3 421, 425; Landry v. Tomatis, 32 P. & D. 162. If valid and invalid La. Ann. 113; Will of Walter, 64 portions of a will are inseparably Wis. 487, 54 Am. Rep. 640, 25 N. W. connected in a general sclieme, so 538. But see, also, Miltenberger v. that the elimination of the invalid Miltenberger, 78 Mo. 27. portion would destroy the scheme, 21 Adams v. Norris, 23 How. all must fail; but if they can be (IT. S.) 353, 16 L. Ed. 539; Breaux separated and the valid portion V. Gallusseaux, 14 La. Ann. 233, will still give effect to the general 74 Am. Dec. 430. plan of the will, it will be admitted 22 Rhodes" V. Rhodes, L. R. 7 to probate. — Carpenter v. Hubbard, App. Cas. 192. See, also, In re 263 111. 571, 105 N. E. 688. CLASSiriOATION AND FORM. 43 decease of my said wife -without leaving issue of our said marriage," although such words were inserted by the party who drew up the will for the maker without reason and without direction and even although their effect had not been intelligently appreciated by the testator.^^ §39. It Is Not Necessary That the Testator Use Words of Command or Direction. It is not essential that the maker of a will should use words of command or of direction; but polite forms of expression employed by testators,^* words of recommen- dation,^" request,^' and conjuration,^'' have been often construed as equivalent to words of command. Where such indirect language is used, the question to be deter- Boined in each case is whether the wish, desire, or rec- ommendation expressed by the testator is meant to gov- ern the conduct of the one to , whom it is addressed or whether it is intended merely as an indication of what the testator thinks would be a reasonable exercise of the discretion of the party, leaving him at liberty, however, 23 Rhodes V, Rhodes, L. R. 7 "The word 'leave' is often used App. Cas. 192. In reference to property disposed 24Brunson v. King, 2 HiU Ch. of by will, but the word is fre- CS. C.) 490; Carle v. Underhill, 3 quently loosely used and it should Bradt (N. Y.) 101; In re Easton, not be given controlling impor- 6 Paige (N. Y.) 183. tance."— Innes v. Potter, 130 Minn. Compare: Knight T. Broughton, 320, 153 N. W. 604. 11 Clark & F. 513. A gift may be made without 25 Pierson v. Garnet, Finch 201n. using express words to that effect 26 In re Mimdy, Sw. & Tr. 119; if the intention of testator to make s. c, 7 Jur. N. S. 52; In re Wood, a gift can be clearly ascertained 36 Cal. 75; Morrell v. Dickey, 1 from the language of the docu- Johns. Ch. (N. Y.) 153; Miars v. ment.— Connor v. Gardner, 230 111. Bedgood, 9 Leigh (Va.) 361. 258. 15 L. R. A. (N. S.) 73, 82 N. E. ar Winch v.Brutton, 8 Jur. 1086: 640. 44 COMMENTAEIES ON THE LAW OF WILLS. to exercise his own judgment.^^ This question, however, is more properly dealt with under the subject of trusts. § 40. The Date and Attestation Clause Should Be Set Forth in Wills— Benefits Thereof. The dating of a will and the insertion of a formal at- testation clause are matters of statutory regulation. Gen- erally speaking, a holographic will is one entirely written, dated and signed by the testator, no witnesses being re- quired, but usually the dating of such an instrument by the maker is necessary to its validity. The date of the making of a will, however, may be of importance since wills must be executed according to the statutory require- ments then existing; but if necessary the date may be proved by parol.*® As to the attestation clause, even in those jurisdictions where it is not necessary that it be set forth in a will, the mere signing by the testator and witnesses being sufficient if followed by proof that the will was, in the presence of the required number of wit- nesses, duly signed by the maker, declared by him to be his last will and testament and that the witnesses, in his presence and in the presence of each other and at his request, subscribed their names as witnesses ; yet if such facts are set forth in the attestation clause, it is pre- sumed that they are true. The place of execution should be set forth. Wills of real property must be executed according to the requirements of the jurisdiction wherein the land is situated, while personal property follows the 28 Williams v. Williams, 1 Sim. shuU, John. (Eng.) 276, 5 Jur. N. S. 358; Liddard v. Liddard, 6 (N. S.) 931. Jur. N. S. 439; Bonser v. Kinnear, 29 Wright v. Wright, 5 Ind. 389; 6 Jur. N. S. 882; Bernard v. Min- Deakins v. Hollis, 7 Gill & J. (Md.) 311. CLASSIFICATION AND FORM. 45 owner. The location, therefore, where the will was made, may be a factor of importance although it could be shown by parol evidence. But as witnesses may die or leave the country, the safest guide is to have the will show when and where it was executed and to insert an attesta- tion clause which sets forth fully the facts showing due compliance with all the statutory requirements. §41. Statutes Prescribing Formalities of Execution Must Be Considered. Certain instruments, in the form of a deed and the like, may be signed and witnessed with all the formalities required for the execution of wills as well as of deeds or other instruments, and therefore may become oper-: ative in some character, no matter what their character may be determined to be. In those jurisdictions, how- ever, where the statutes require publication of the will by the testator, that is, that he declare the instrument, at the time of execution and in the presence of the sub- scribing witnesses, to be his last will, a writing not so published will be denied probate.^" In considering in- formal documents, therefore, it is necessary to refer to the statutory requirements regarding execution. As to letters, entries in diaries or books of account, and the like, they are seldom if ever witnessed; but if they are fully in the handwriting of the testator and dated and signed by Mm so as to satisfy the statute regarding the execution of holographic wills, they may be admitted to probate if determined to be testamentary in character. 30 Rogers T. Diamond, 13 Ark. (Ky.) 114; Compton v. Mitton, 12 474; Swift v. Wiley, 1 B. Men. N. J. L. 70. 46 COMMENTARIES ON THE LAW OF WILLS. § 42. The Question of the Character of an Instrument May Be of Vital Importance. The determination of the character of an instrument is often a matter of vital importance. It may be a question whether the writing is a deed or a will ; if a deed it may be invalid because never delivered; if a will, some for- mality of execution may be lacking and therefore probate must be denied. Further deeds, assignments, promissory notes and the like, unless intended as a voluntary gift, must be supported by a valuable consideration. A valid consideration may be presumed from the writing ; this is especially true where such consideration is expressed on the face of the instrument. Parol evidence has been held inadmissible to show a want of consideration ; but it is difficult to see what effect could be given a writing •which is ineffectual as a will, which was not intended as a gift, and which was executed without consideration.*^ Then, again, a wiU as distinguished from other writ- ings, is revocable at the pleasure of the maker; thus an alleged claim against an estate may be defeated because of some action previously taken by the deceased. A wiU, also, has no force or effect until the death of the testator, whereas a deed or an assignment, if not limited and duly delivered, passes a present interest in property. When the interest vested may be of vital importance; for in- stance, although a person can, during his life, give all his property to charity, yet in most jurisdictions the amount which can be so disposed of by wiU is limited by statute. 81 Woodbridge v. Spooner, 3 B. Admr., 6 Dana (Ky.) 257. See, also, & Aid. 233. Klrkpatrick v. Pyle, 6 Houst Compare: Jackson t. Jackson's (Del.) 569. CLASSIFICATION AND POEM. 47 §43. The Determination of the Character of an Instrument Affects Substantial Rights. In the administration of an estate, the first disburse- ments to be made are for the expenses of the last illness of the deceased, then come the fees and expenses of ad- ministration, after which claims against the estate may- be paid. Some claims may be secured, as where the holder has a mortgage of real property or a pledge of personalty, the property so mortgaged or pledged being primarily held for the debt and may first be sold to set- tle the claim. Devisees and legatees can receive the ben- efit of the provisions in their favor only after the above mentioned expenses and claims have been settled. And as to such beneficiaries, the holders of specific devises and specific legacies are entitled to first receive the same, general and residuary beneficiaries coming after. Thus a writing in the form of a contract, if construed as such, might be so worded that it could be specifically enforced against the estate of the deceased;*^ if held to be a will, a suit for specific performance would not lie.^* A writing in the form of, and held to be, a promissory note, would make the payee an unsecured creditor of the estate; if held to be a will, he would be a legatee and if the estate was insolvent, he would receive nothing. i § 44. Writings in the Form of Deeds, Notes, Letters, Assign- ments and the Like, Have Been Admitted to Probate. In determining the legal character of an instrument, its form is not regarded and its construction is not influ- enced by the fact that the form of the document may be that of an indenture, deed-poll, bond, or agreement, under S2 McKlnnon v. McKinnon, 56 33 Hazleton v. Reed, 46 Kan. 73, Fed. 409, 5 C. C. A. 530. 26 Am. St. Rep. 86, 26 Pao. 450. 48 COMMENTARIES ON THE LAW OF WILLS. seal or not under seal, recorded or not recorded, wit- nessed by one or by many; it is the intention of the maker and the meaning of the instrument which pre- vail. The true test of the legal character of the in- , strument is whether, regardless of form, it passes a present interest. If so, it is not a will; but if the in- terest conveyed is not to take effect until after the death of the maker, it is testamentary in character and, if executed according to the formalities prescribed by law, it will be admitted to probate. There is hardly any form of paper which has not been admitted to probate provided the maker intended it to operate only after his demise.** Thus we find that writings in the form of an entry in a diary*® or in an account book,*® instructions to a solicitor for preparing a codicil,*'' endorsements assign- ing notes or bonds,*^ an assignment of a life insurance policy,*^ marriage articles,*" a bill of sale,*^ powers of 84 Manly v. Lakin, 1 Hagg. 130; Estate, 147 Pa. St 89, 100, 30 Am. Ingram v. Wyatt, 1 Hagg. 384; St. Rep. 713, 23 Atl. 212. Mastennan v. Maberly, 2 Hagg. 36 Reagan v. Stanley, 11 Lea 235; Goods of Knight, 2 Hagg. 554; (Tenn.) 316. Shingler v. Pemberton, 4 Hagg. 36 Brown v. Eaton, 91 N. C. 26; 356; Thorold V. Thorold, 1 Phillim. Howarth v. Dewell, 6 Jur. N. S. 1; Passmore v. Passmore, 1 Phil- 1360. lim. 216; Denny v. Barton & Rash- 37 Torre v. Castle, 1 Curt. 303; leigh, 2 Phillim. 575; Peacock v. s. c, 2 Moore P. C. C. 133. Monk, 1 Ves. Sen. 127; Ward v. 38 Hunt v. Hunt, 4 N. H. 434, Turner, 2 Ves. Sen. 431; Tomkyns 17 Am. Dec. 434; Musgrave v. V. Ladbroke, 2 Ves. Sen. 591; Down, cit. 2 Hagg. Eco. 247; Jack- Habergham v. Vincent, 2 Ves. Jun. son v. Jackson, 6 Dana (Ky.) 257; 204; Hester v. Young, 2 Ga. 31; Cf. Plumstead's Appeal, 4 Serg. & Robinson v. Schly & Cooper, 6 Ga. R. (Pa.) 545; Masterman v. Ma- 515; Johnson T. Yancey, 20 Ga. berly, 2 Hagg. Ecc. 235. 707, 65 Am. Dec. 646; Turner v. 39 Schad's Appeal, 88 Pa. St. 111. Scott, 51 Pa. St 130; Patterson v. 40 Marnell v. Walton, cit. 2 Hagg. English, 71 Pa. St. 456; Scott's Ecc. 247. 41 Kelleherv.Kernan.eO Md.440. CLASSIFICATION AND POEM. 49 attorney,*^ checks upon banks,** orders upon savings banks,** promissory notes,*^ letters,*® articles of agree- ment or contracts,*'' and deeds,*® have been held testa- mentary in nature, and, having been duly executed and attested, entitled to probate. § 45. Features Which Distinguish a Will Prom Other Instru- ments. The features which distinguish a will from other in- struments are that it is ambulatory in character and revocable at pleasure, and does not become effective until after the death of the testator. An instrument which be- comes operative during the life of the maker and passes any interest in property before his death, even though the enjoyment thereof be postponed until after the demise 42 Doe V. Cross, 8 Q. B. 714; In re Robinson, L. R. 1 P. & D. 384 ; Rose v. Quick, 30 Pa. St. 225. 43 Jones V. Nicholay, 2 Eng. L. & Eq. 591; Walsh v. Gladstone, 1 Phillim. 294, overruling Gladstone V. Tempest, 2 Curt. 650; Bartholo- mew V. Henley, 3 Phillim. 317. 44 In re Marsden, 1 Sw. & Tr. 542. 45 Maxee v. Shute, cit. 2 Hagg. Ecc. 247; Caviness v. Rushton, 101 Ind. 500, 51 Am. Rep. 759. 46 In re McCabe, 2 Sw. & Tr. 474; Passmore v. Passmore, 1 Phil- lim. 216; Denny v. Barton, 2 Phil- lim. 575; Manley v. Lakin, 1 Hagg. Ecc. 130; Cock v. Cooke, L. R. 1 P. & D. 241; Cowley v. Knapp, 42 N. J. L. 297; Byers v. Hoppe, 61 Md. 206, 48 Am. Rep. 89; Boyd V. Boyd, 6 Gill & J. (Md.) 25; Wagner v. McDonald, 2 Har. & J. I Com. on Wills — 4 (Md.) 346; Rose v. Quick, 30 Pa. St. 225; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153; Porter v. Turner, 3 Serg. & R. (Pa.) 108. 47 Green v. Proude, 3 Keb. 310; s. c, 1 Mod. 117; Hixon v. Wytham, 1 Ch. Cas. 248; Jones v. Rhoads, 74 Ind. 510; Castor v. Jones, 86 Ind. 289. 48 Thorold v. Thorold, 1 Phillim. 1; Goods of Knight, 2 Hagg. Ecc. 554; Shingler v. Pemberton, 4 Hagg. Ecc. 356; Cf. Atty.-Gen. v. Jones, 3 Price 368; Sperber v. Balsler, 66 Ga. 317; Gage v. Gage, 12 N. H. 371; Turner v. Scott, 51 Pa. St. 126; Goodale v. Evans, 263 Mo. 219, 172 S. W. 370; Ingram v. Porter, 4 McCord (S. C.) 198; Milledge v. Lamar, 4 Desaus. Eq. (S. C.) 617; Peacock v. Monk, 1 Ves. Sen. 127; Tomkyns v. Lad- broke, 2 Ves. Sen. 591. 50 COMMENTABIES ON THE LAW OF WILLS. of the donor and even though, it may be contingent upon the survivorship of the donee, is a deed or contract and can not operate as a will. If, however, the instrument is not to become operative until after the death of the maker, then it is testamentary in character even though executed pursuant to some contract or obligation appear- ing on its face.*® § 46. The True Test of a Will Is Testamentary Intent to Pass Property After the Death of the Maker. In cases where doubt arises as to whether the instru- ment is a will or of some other character, the true test is whether the maker executed the document with animus testandi. To be a will the maker must have intended to pass his property only after his death and to pass it by the particular instrument in question, although he may have designated it by a different name and through ig- norance of the law may not, in fact, have known that he was making a wiU. The test of the character of the instrument is the intention of the maker at the time of its execution and a construction of the document must be based upon its provisions.^" An instrument executed because of fraud or coercion lacks the element of animus testandi, and the same may be said of a writing in the form of a will which was executed merely as an idle 49 Hester v. Young, 2 Ga. 31; 199 111. 454, 65 N. E. 426; Christ v. Spencer T. Robblns, 106 Ind. 580, Kuehne, 172 Mo. 118, 72 S. W. 537; 5 N. E. 726; Matter of Diez, 50 Smith v. Baxter, 68 N. J. L. 414, N. Y. 88; Oilman v. McArdle, 99 53 Atl. 1125; Phifer v. Mullls, 167 N. Y. 451, 52 Am. Rep. 41, 2 N. B. N. C. 405, 83 S. E. 582; Patterson 464; Phifer v. Mullls, 167 N. C. v. English, 71 Pa. St. 454. 405, 83 S. E. 582. Compare: Swett v. Boardman, 1 60 Habergham v. Vincent, 2 Ves. Mass. 258, 2 Am. Dec 16; Combs v. Jun. 204; Bogan. v. Swearingen, Jolly, 3 N. J, Eq. 625. CLASSIFICATION AND FORM. 51 jest.^^ But if a writing has been drawn up and executed with all the required formalities and shows on its face a complete scheme for the disposition of the maker's prop- erty after his death, with nothing appearing that would cause suspicion, it is a dangerous matter to allow parol evidence to overturn such a document.^* §47. The Same Subject: Notes of a Will to Be Thereafter Drawn Sometimes Admitted to Probate. The execution of a paper presumes that it was to take effect in some form, but it can not be a will unless it was written with animus testandi. Proof that a party- intended to make a disposition of his property similar to or identical with that contained in a certain paper which he has executed, does not make such paper his will. No matter what his intentions may have been, if the maker of an instrument did not intend by that particular paper to dispose of his property in the manner in which it could have been disposed of only by will, such instrument must be denied probate, no matter how correct it may be as to form and execution and no matter how clearly it may conform to the intentions of the maker which he had otherwise expressed.^* There is a modification of this rule, however, as, for instance, where a man has drawn up a draft or notes of the provisions which he desires to have incorporated in his will to be thereafter formally 61 Nichols v. Nichols, 2 Phillim. 63 Masterman v. Maberly, 4 Eng. 180; Lister v. Smith, 3 Sw. & Tr. Eco. 103; s. c, 2 Hagg. Ecc. 235; 282; Fleming v. Morrison, 187 Sharp v. Sharp, 2 Leigh (Va.) Mass. 120, 105 Am. St Rep. 386. 249; Waller v. Waller, 1 Gratt, 72 N. B. 499. (V^-) ^54, 42 Am. Dec. 564; Pol- 52 Brown v. Avery, 63 Fla. 355, lock v. Glassell, 2 Gratt. (Va.) 439; Ann. Gas. 1914A 90, 58 So. 34; Hocker T. Hocker, 4 Gratt. (Va.) Sewell V. Slingluff, 57 Md. 537; ^77. Phifer v. Mullis, 167 N. C. 405, 83 S. E. 582. 52 COMMENTABIES ON THE LAW OP WILLS. executed, and wMch draft or notes have been fully writ- ten and signed by Mm so as to satisfy tbe requirements of the statute. In such a case, the draft or notes, if expressing the testamentary purposes of the maker, may be admitted to probate as his will. This, however, is per- mitted only in those cases when the testator has been prevented by an act of God from fully carrying out his purposes ; and such draft or notes can be admitted as a will only when they express the final intention of the maker as to the manner in which he wishes his property to be disposed of at his death. And if the draft or notes are incomplete, as where they show that the testator in- tended to add other provisions, they do not show a final determination and must be refused probate.^* § 48. Courts Will Carry Out the Intention of the Maker If It Can Lawfully Be Done. Where an instrument to be construed shows a clear in- tention on the part of the maker to dispose of his estate, but he has taken an ineffectual method of doing so, if the intention of the maker can become operative by con- struing the instrument as being of a different character from that apparently intended, matters of form will be disregarded and the substance of the document will be 54 McBrlde v. McBride, 26 Gratt. 6 Dem. Surr. 43. However, an (Va.) 476; In re Barber's Will, 92 instrument duly executed In the Hun 489, 37 N. Y. Supp. 235. See, manner required of wills, but also. Trustees of Western Mary- which contained a provision at the land College v. McKinstry, 75 Md. beginning stating, "This is not 188, 23 Atl. 471. meant as a legal will, but as a An Instrument containing the guide," was denied probate, it provision "that this writing is in- being held that the testator did stead of a formal will which I not intend the paper at the time intend to make," but afterwards of its execution to be a will. — duly signed and witnessed, was Ferguson-Davie v. Ferguson-Davie, admitted to probate. — In re Beebe, L. R. 15 Prob. Div. 109. CLASSIFICATION AND FORM, 53 carried into execution if this can be lawfully done.'*^ No instrument, however, can he construed either as a will, as a deed, or as of any other character, unless it was exe- cuted according to all required formalities."® A will may be informally drawn and may consist of one or more papers. No particular words are necessary to show a testamentary intent on the part of the maker, but it must appear that he intended to dispose of his prop- erty only after his death. To show the maker's intent, •parol evidence of surrounding circumstances is admissi- ' ble. The language of the instrument will be construed in • the light of surrounding circumstances, and if it appears jfrom such evidence that the maker intended the instru- ment to be testamentary, the court will give effect to such intention if it can do so consistently with the language of the instrument, no matter what its form may be.^'' §49. An Instrument May Be Construed as a Will Although Not So Intended by Its Maker. While the intention of the maker of an instrument should prevail in determining its character, yet if he in- tends the writing to operate as a posthumous disposition of his property, in those jurisdictions where publication 55 Habergham v. Vincent, 2 Ves. (N. C.) 141; Goodale v. Evans, 263 Jun. 204; Phifer v. MuUis, 167 N. C. Mo. 219, 172 S. W. 370. 405, 83 S. E. 582. 57 Jones v. Nlcolay, 2 Rob. Ecc. seMcKinnon v. McKinnon, 46 288; Estate of Wood, 36 Gal. 75; Fed. 713; Comer v. Comer, 120 111. Clarke v. Ransom, 50 Cal. 595; 421, 11 N. E. 848; Keeler v. Mer- Estate of Skerrett, 67 Cal. 585, 8 chants' Trust Co., 253 111. 528, 97 Pac. 181; Succession of Ehrenberg, N. E. 1061; Cover v. Stem, 67 Md. 21 La. Ann. 280, 99 Am. Dec. 729; 449, 1 Am. St. Rep. 406, 10 Atl. McGrath v. Reynolds, 116 Mass. 231; Russell v. Webster, 213 Mass. 566; Outlaw v. Hurdle, 1 Jones L. 491, 100 N. E. 637; Griffin v. Mc- (N. C.) 151; Todd's Will, 2 Watts Intosh, 176 Mo. 392, 75 S. W. 677; & S. (Pa.) 145. Allison's Execs, v. Allison, 4 Hawks 54 COMMENTABIES ON THE LAW OF WILLS, is not required by statute, the document may be declared a will, even though the maker did not know that he was performing a testamentary act and even though he did not intend to perform sucli an act. He may, through ignorance of the law, expressly declare the paper to be of a different nature.^^ Such is often the case where one attempts to dispose of property by deed in which a life interest is reserved and where subsequently he, repent- ing of his generosity, seeks by another writing to make a different disposition of the same. The question then/ arises as to whether or not the first instrument may be! revoked. If it was a present disposition of property, therei could be no revocation; if it was testamentary in char- acter, there could be. The general rule is that, whatever, its form, if the instrument contains a disposition of prop- erty to take effect after the maker's death, vesting no present title but merely appointing what is to be done after death, it is testamentary in nature, ambulatory and revocable, even though it was intended that its character should be other than that of a will. If it confers an imme- diate title to property, even though the possession thereof be postponed during the life of the grantor, it partakes of the nature of a deed and may not be revoked by any subsequent act. It is, of course, absolutely necessary, in holding a document to be a will, that the maker should have intended to pass some estate or interest in property after his death and further, should have intended to pass it by the instrument in question. He must have had the animus testandi. Although the purpose of the maker of an instrument may have been to execute a document of a different character, yet if what he did by the instru- BsHazlcton v. Reed, 46 Kan. 73, 26 Am. St. Rep. 86, 26 Pac. 450; Turner v. Scott, 51 Pa. St 126. CLASSIFICATION AND FORM. 55 ment executed was to do that which could only be effected by a will, the instrument is testamentary in character and, if properly executed, will be admitted to probate.^' § 50. The Language of an Instrument as Showing the Intent of the Maker. In effectuating the intention of the maker of an instru- ment, the general rule is that if the language of the entire document shows an intention to provide for a general scheme for the disposing of property and such scheme is 59 Green v. Proude, 1 Mod. 117; Ward V. Turner, 2 Ves. Sen. 440; Habergham v. Vincent, 2 Vea. Jun. 204; Goods of Slinn, L. R. 15 Prob. Div. 156; Gillliam Sisters v. Mus- tin, 42 Ala. 365; Kelly v. Richard- son, 100 Ala. 584, 13 So. 785; Clarke v. Ransom, 50 Cal. 595; Jackson v. Culpepper, 3 Ga. 569; Symmes v. Arnold, 10 Ga. 506; Jones V. Morgan, 13 Ga. 515; Hall y. Bragg, 28 Ga. 330; Moye v. Klttrell, 29 Ga. 677; Sperber v. Balster, 66 Ga. 317; Goff v. Daven- port, 96 Ga. 423, 23 S. E. 395; Comer v. Comer, 120 111. 420, 11 N. B. 848; Robinson v. Brewster, 140 111. 649, 33 Am. St. Rep. 265, 30 N. E. 683; Bowler v. Bowler, 176 111. 541, 52 N. E. 437; Stroup v. Stroup, 140 Ind. 179, 27 L. R. A. 523, 39 N. E. 864; Burlington Uni- versity V. Barrett, 22 la. 60, 92 Am, Dec. 376; Hazleton v. Reed, 46 Kan. 73, 26 Am. St Rep. 86, 26 Pac. 450; Lacy v. Comstock, 55 Kan. 86, 39 Pac. 1024; Maxwell v. Maxwell, 3 Mete. (Ky.) 101; Boyd V. Boyd, 6 Gill & J. (Md.) 25; Baltimore v. Williams, 6 Md. 235; Carey v. Dennis, 13 Md. 1; Kelle- her V. Kernan, 60 Md. 440; Mc- Grath v. Reynolds, 116 Mass. 566; Bromley v. Mitchell, 155 Mass. 509, 30 N. E. 83; Estate of Lauten- schlager, 80 Mich. 285, 45 N. W. 147; Herrington v. Bradford, 1 Miss. 520; Wall v. Wall, 30 Miss. 91, 64 Am. Pec. 147; Edwards v. Smith, 35 Miss. 197; Robnett V. Ashlock, 49 Mo. 172; Outlaw v. Hurdle, 1 Jones L. (N. C.) 151; Phlfer V. Mullls, 167 N. C. 405, 83 S. B. 582; Gage v. Gage, 12 N. H. 371; Turner v. Scott, 51 Pa. St. 126; Frederick's Appeal, 52 Pa. St. 338, 91 Am. Dec. 159; Patterson v. English, 71 Pa. St. 458; Frew v. Clarke, 80 Pa. St. 170; Singleton v. Bremar, 4 McCord (S. C.) 12, 17 Am. Dec. 699; Alexander v. Bur- net, 5 Rich. (S. C.) 189; Wheeler V. Durant, 3 Rich. Eg. (S. C.) 452; Babb V. Harrison, 9 Rich. Eq. (S. C.) Ill, 70 Am. Dec 203; Milli- can V. Millican, 24 Tex. 426; Hocker v. Hocker, 4 Gratt. (Va.) 277; McBrlde v. McBride, 26 Gratt. (Va.) 476. 56 COMMENTARIES ON THE LAW OP WILLS. not contrary to law, it is the duty of the court to deter- mine the instrument to be of such a character as will carry out the intention of the maker.*" Although the form of the instrument is not conclusive of the intention of the maker, yet if the writing is in the form of and was exe- cuted and designated as a deed, such facts are to be con- sidered in determining the intention of the maker.*^ The language of the instrument, however, prevails and the intention of the maker is to be gathered from the four corners of the document. He is presumed to have used language which expressed his intention, and the instru- ment should be construed according to the legal meaning of its words. Thus if a party uses language which imports a testamentary intent, such fact has a bearing on the construction to be given to the instrument.®^ Words, however, should not be taken in such a narrow or gram- matical sense as to be unreasonable. Grammatical con- struction will not be allowed to defeat the intention of the maker as drawn from the entire will. Where the words used, applied to the facts of the case, create an ambiguity, the words may be modified or extended in order to remove the ambiguity and to give effect to the maker's intention, but for no other purpose.** 60 Roe V. Vingut, 117 N. Y. 204, murtrie, 15 N. J. L. 276; Pond v. 22 N. E. 933. Berg, 10 Paige (N. Y.) 140; Carter 61 Thompson v. Johnson, 19 Ala. v. Bloodgood, 3 Sandf. Ch. (N. Y.) 59; Rawlings v. McRoberts, 95 Ky. 293; Tayloe v. Johnson, 63 N. C. 346, 25 S. W. 601. 381; SlingluJE v. Johns, 87 Md. 273, 62Hazleton v. Reed, 46 Kan. 73, 39 Atl. 872; Horwltz v. Norris, 60 26 Am. St. Rep. 86, 26 Pac. 450; Pa. St. 261. Turner v. Scott, 51 Pa. St. 126. Technical terms may be used In 63 Metcalf V. Framington Par- a will, but they are unnecessary, rish, 128 Mass. 370; Stewart v. Ordinary words are construed ac- Stewart, 177 Mass. 493, 59 N. E. cording to their grammatical 116; Johnson v. Johnson, 128 Ind. sense; technical terms according 93, 27 N. E. 340; McMurtrle v. Mc to their legal sense, unless the CLASSIFICATION AND FORM. 57 §51. In Determining the Legal Character of an Instrument, the Court Will Be Guided by Its Provisions, Together With Surrounding Circumstances. The determination of the legal character of an instru- ment, that is, whether it is testamentary or not, depends mainly upon the question whether the maker intended to convey an estate or interest to vest before his death and upon the execution of the paper, or whether the estate or interest was to pass only after his demise. In constru- ing such an instrument the court will not allow the lan- guage of the document or even the belief of the maker as to its character to absolutely control its decision. The court will weigh all the language and be governed mainly by the provisions of the instrument ; but all the facts and circumstances surrounding the parties and attending the execution of the document will be used as an aid so as to impress on the instrument such a character as will make effective the intention of the maker. The document may have been designated by any other name; it may have been called a deed, a bond, a marriage settlement, a letter, a promissory note or the like, yet if the facts above mentioned show, on the whole, that the maker in- tended that it should pass an estate or an interest only after his death, it will be held to be a will.®* To be language of the instrument shows 79 Md. 146, 28 Atl. 1063; Eber- that they were employed other- hardt v. Perolin, 49 N. J. Eq. 570, wise. See Taylor v. Stephens, 165 25 Atl. 510; Will of Turner, 208 Ind. 200, 74 N. B. 980; White v. N. Y. 261, Ann. Cas. 1914D, 245, Massachusetts Inst., 171 Mass. 84, 101 N. B. 905. 50 N. B. 512. Correct rules of 64 Habergham v. Vincenit, 2 Ves. grammar require punctuation and Jun. 204; Dunn v. Bank of Mobile, capital letters; but grammatical 2 Ala. 152; Shepherd v. Nabors, 6 errors are disregarded, the Ian- Ala. 631; Thompson v. Johnson, 19 guage of the instrument being con- Ala. 59; Gillham Sisters v. Mustin, trolling. See Black v. Herring, 42 Ala. 365; Sharp v. Hall, 86 Ala. 58 COMMENTAEIES ON THE LAW OF WILLS. admitted to probate, of course, the will must have been executed according to all the required formalities. § 52. Evidence of Surrounding Circumstances Limited to the Purpose of Ascertaining Intent. The language of an instrument may be ambiguous or silent as to whether or not the maker intended it as a will and therefore collateral evidence may be admitted to show the intent of the maker at the time of the exe- cution of the paper. Such evidence can not be admitted for the purpose of changing the pro^dsions of the instru- ment, but is limited solely to the question of intent. Thus evidence of the circumstances surrounding the exe- cution of the document and parol declarations by the maker either at the time of the execution of the paper or subsequently thereto, may be received for such pur- pose, and so aid in determining the character of the in- strument. If a paper had been executed but never delivered, evidence that the maker retained custody of it and kept the same in some safe place and frequently 110, 113, 11 Am. St. Rep. 23, 5 Sa. As to the evidence necessary to 497; Crocker v. Smith, 94 Ala. establish agreements to execute 295, 299, 16 L. R. A. 576, 10 So. mutual or reciprocal wills, see, 258; Abney v. Moore, 106 Ala. 134. post, §§ 92, 93. 18 So. 60; Whitten v. McFall, 122 As to the admissibility of ex- Ala. 619, 623, 26 So. 131; Burling- trinsic evidence to show whether ton University v. Barrett, 22 la. 60, or not the maker of a will In- 92 Am. Dec. 376; Spencer v. Rob- tended it to be conditional, see, bins, 106 Ind. 580, 5 N. E. 726; post, §§110, 111, 112. Wall V. Wall, 30 Miss. 91, 64 Am. As to the extent to which parol Dec. 147; Matter of Diez, 50 N. Y. declarations of a testator may be 88; Oilman v. McArdle, 99 N. Y. admitted to prove or disprove rev- 451, 52 Am. Rep. 41, 2 N. E. 464. ocation, see, post, §§ 124, 125, 126. As to the construction of Joint As to the evidence necessary to wills being controlled by their prove a contract to make a will, contents, see, post, §§ 78, 79. see, post, §§ 136, 138, 139. CLASSIFICATION AND FOKM. 59 referred to it as his will, is competent as tending to prove that the instrument had been executed with testamentary- intent.®^ Such evidence, however, is not only limited to the single purpose of determining the intent of the maker of an instrument, but is admissible only where doubt as to its character appears on the face of the paper. A deed absolute in form and executed with the intention that the same should be delivered during the life of the maker but which in fact was never delivered, can not be trans- 65 Seay v. Huggins, (Ala.) 70 So. 113; Sperber v. Balster, 66 Ga. 317; Robinson v. Brewster, 140 111. 649, 33 Am. St. Rep. 265, 30 N. E. 683; Stewart v. Stewart, 177 Mass. 493, 59 N. B. 116; Scott's Appeal, 147 Pa. St 89, 30 Am. St. Rep. 713, 23 Atl. 212; Tozer v. Jackson, 164 Pa. St. 373, 384, 30 Atl. 400; Kisecker's Estate, 190 Pa. St. 476, 42 Atl. 886; Smith v. Smith, 112 Va. 205, 33 L. R. A. (N. S.) 1018, 70 S. E. 491. On a trial in ejectment, the plaintiff produced a deed made be- tween a father and son wherein the father agreed to give the son so much and the son agreed to pay certain sums and debts. The doc- ument also contained certain ex- pressions usually found in wills, but the writing was both sealed and delivered as a deed. Evidence was admitted to show that the father intended it as his last will. — Green v. Proude, 1 Mod. 117. To determine whether an in- strument was a will or deed, proof regarding testator's purpose and efforts to provide for his benefi- ciary in anticipation of a trip was held properly received in evidence for the purpose of determining whether the condition of mind ex- isted at the time of the execution of the instrument, which the law regards as testamentary. — Kelle- her V. Kernan, 60 Md. 440. Calling a paper which he has signed his will and requesting an- other to witness it has been held to imply animus testandi. — In re Mittnacht's Will, 146 N. Y. Supp. 171. The instrument in the following case was construed as a deed. It had been delivered, but the grantor remained in the posses- sion of the property until his death. It was held that his sub- sequent acts did not make the paper testamentary. — DriscoU v. Driscoll, 143 Cal. 528, 77 Pac. 471. A document in the form of a deed, but held to be a will and invalid because of improper execu- tion, can not be made valid by the grantee's acceptance of the same and performing its conditions. — Ransom v. Pottawattamie County, 168 la. 570, 150 N. W. 657. As to the construction of joint 60 COMMENTABIES ON THE LAW OF WILLS. formed into a testamentary document.*^ On the other hand, a paper in the form of a will and executed as such, the provisions of which declare that the property men- tioned is to pass after the death of the maker, can not be converted into a deed.®^ § 53. Parol Declarations May Be Received as Part of the Res Gestae, The declarations of a party to an instrument, whether made before or after its execution, are generally inadmis- sible in evidence either to destroy the instrument or con- wills being controlled by their contents, see, post, §§ 78, 79. As to the evidence necessary to establish agreements to execute mutual or reciprocal wills, see, post, §§ 92, 93. As to the admissibility of ex- trinsic evidence to show whether or not the maker of a will in- tended it to be conditional, see, post, §§ 110, 111, 112. As to the extent to which parol declarations of a testator may be admitted to prove or disprove rev- ocation, see, post, §§ 124, 125, 126. As to the evidence necessary to prove a contract to make a will, see, post, §§ 136, 138, 139. 66 Goods of Davy, 1 Sw. & Tr. 262; Elliott v. Cheney, 183 Mich. 561, 150 N. W. 163; Stilwell v. Hubbard, 20 Wend. (N. Y.) 44. 67 Goods of English, 3 Sw. & Tr. 586; Whyte v. PoUok, 7 App. Cas. 400; Sewell v. SlinglufE, 57 Md. 537. If a party makes an absolute conveyance by deed divesting him- self of all his property to one heir in exclusion of others, a disposi- tion which would be a fraud against the law of wills of the state where such deed was made, if such conveyance was a deed it can not be avoided on the claim that it was a testamentary dispo- sition of property and void as against the statute. But if such instrument was not to operate as a present transfer of property and was to take effect only after the death of the maker, it would be a will, no matter what its form, and would be subject to the statutes regarding testamentary disposi- tion. — Grain v. Grain, 17 Tex. 80; Millican v. Millican, 24 Tex. 426. As to the construction of joint wills being controlled by their contents, see, post, §§ 78, 79. As to the evidence necessary to establish agreements to execute mutual or reciprocal wills, see, post, §§ 92, 93. As to the admissibility of extrin- sic evidence to show whether or CLASSIFICATION AND FORM. 61 trol its construction.®* But where a document is offered for probate and an ambiguity exists so that the intention of the maker should be ascertained, his statements made at or very near the time the instrument was executed may be taken as part of the res gestae and is proper evi- dence to show the intention of the maker at the time he signed the paper.*" But evidence of parol declarations made either before or after the execution, is not admissi- ble for the purpose of invalidating a will. Evidence of I subsequent declarations might be admissible to show that [the maker knew and understood the contents of the instru- ment, as in a case where it was claimed that he had been deceived, or where it was for the purpose of showing not the maker of a will intended it to be conditional, see, post, §1 110, 111, 112. As to the extent to which parol declarations of a testator may be admitted to prove or disprove revocation, see, post, §§ 124, 125, 126. As to the evidence necessary to prove a contract to make a will, see, post, §§ 136, 138, 139. 68 Green v. Proude, 1 Mod. 117; Garlick v. Bowers, 66 Cal. 122, 4 Pac. 1138; Mowry v. Heney, 86 Cal. 471, 25 Pac. 17; Robinson V. Brewster, 140 111. 649, 33 Am. St. Rep. 265, 30 N. E. 683; Mooney V. Olsen, 22 Kan. 69; Caemen v. Van Harke, 33 Kan. 333; Kitchell V. Beach, 35 N. J. Eg. 446; Lin- ton's Appeal, 104 Pa. St. 228. 69 Badgley v. Votrain, 68 111. 25, 18 Am. Rep. 541; Comer v. Comer, 120 111. 420, 11 N. E. 848; Roth v. Michalis, 125 111. 325, 17 N. E. 809; Frew V. Clarke, 80 Pa. St. 170; Low V. Low, (Tex. Civ.) 172 S. W. 590. A written instrument purporting to convey certain real estate, also provided "that it should have full force and effect at his death." The court said no particular form of words is necessary to make a will and the test of its character is the intention of the maker read in the light of surrounding circum- stances. — Sperber v. Balster, 66 Ga. 317. Parol evidence is not admissible to explain the character of the in- strument unless the uncertainty appears from the language of the instrument itself. — Phifer v. Mul-' lis, 167 N. C. 405, 83 S. E. 582. ' If the instrument is clearly a' deed, it must be so declared and evidence can not be introduced to Bhow it to be testamentary in character.— Elliott v. Cheney, 183 Mich. 561, 150 N. W. 163. 62 COMMENTARIES ON THE LAW OP WILLS. the Tinderstanding and intention of the maker regarding what he had already done, but such evidence is limited to such purposes.''" § 54. Extrinsic Evidence as Affecting the Question of Revoca. tion, Evidence of the circumstances under which a paper was executed, and subsequent transactions as well, may be admissible and pertinent in a case where the question of revocation is involved. A will may be revoked while a deed can not except where the grantee consents. An instrument in the form of a deed may be executed in part performance of an agreement for the disposition of the estate of the grantor, but if subsequent transactions be- tween the parties or a new agreement inconsistent with the former arrangement can be shown, such evidence will be considered ; and if it appears that it was the intention to revoke the former agreement, which could be shown by a later disposition inconsistent with the former, the in- strument, even if characterized as a will, would be denied probate.''^ 70 Robinson v. Brewster, 140 111. well v. Hubbard, 20 Wend. (N. Y.) 649, 33 Am. St. Rep. 265, 30 N. B. 44. 683; Gage v. Gage, 12 N. H. 371. 71 Gage v. Gage, 12 N. H. 371. Where the intent drawn from As to the construction of joint outside conversations shows that wills being controlled by their con- the grantor in an instrument did tents, see, post, §§ 78, 79. not wish the grantee to have the As to the evidence necessary to property covered by the instru- establish agreements to execute ment until after his death, but the mutual or reciprocal wills, see, document, in the regular form of post, §§ 92, 93. a deed, contained nothing to show As to the admissibility of ex- that a present interest was not to trinsic evidence to show whether vest immediately and such docu- or not the maker of a will in- ment was not delivered. It will be tended it to be conditional, see, ineffectual for any purpose.— Stll- post, §§ 110, 111, 112. CLASSIFICATION AND FORM. 63 § 55. Distinction Between a Will and a Declaration of Trust. The primary distinction between a will and a declara- tion of trnst is that the former takes effect in the future upon the death of the testator, while the latter takes effect during the life of the settlor. If the maker of an instrument intended it as a testamentary disposition of property to take effect upon his death and adopted the form of a declaration of trust for the purpose of evading the statute of wills or the statute relating to the amount of his estate which he could devise for charitable pur- poses, yet if the instrument was not executed according to the formalities required for the execution of wills it would be void as a will. But if such instrument was in- tended as a present disposition of property it would be held valid as such.''^ § 56. The Distinction Between a Will and a Deed. The difference between a deed and a will is that a deed passes a present interest in property, although the right of possession and enjoyment may not vest until some future date or even until after the death of the grantor ; while a wiU passes no interest in property until after the death of the testator.''^ The provisions of the document As to the extent to which parol 42 Ala. 591; Hall v. Burkham, 59 declarations of a testator may be Ala. 349; Bunch t. Nicks, 50 Ark. admitted to prove or disprove rev- 367, 7 S. W. 563; Mowry v. Heney, ocation, see, post, §§ 124, 125, 126. 86 Cal. 475, 25 Pao. 17; Kopp v. As to the evidence necessary to Gunther, 95 Cal. 64, 30 Pac. 301; prove a contract to make a will, Tennant v. John Tennant Memo- see, post, §§ 136, 138, 139. rial Home, 167 Cal. 570, 140 Pac. 72 Van Cott v. Prentice, 104 N. Y. 242; Owen v. Smith, 91 Ga. 564, 45, 10 N. B. 257; Amherst College 568, 18 S. E. 527; Spencer v. Rob- V. Ritch, 151 N. Y. 282, 37 L. R. A. bins, 106 Ind. 580,. 5 N. E. 726; 305, 45 N. B. 876. Craven v. Winter, 38 la. 478; Ran- 73 McGuire v. Bank of Mobile, som v. Pottawattamie County, 168 64 COMMENTABIES ON THE LAW OP WILLS. mainly govern as to the character of an instrument. A deed, as distinguished from a will, must take effect upon its execution and delivery, or not at all. A deed not deliv- ered is invalid. It is, of course, not necessary that a deed convey an immediate interest in possession, but the inter- est conveyed, whether present or future, must vest al; the time the deed is executed and delivered, although the right of possession or enjoyment may be postponed until some future time. As to a will, no delivery is necessary and it does not become operative until after the death of the testator.'^* If a document which had never been deliv- la. 570, 150 N. W. 657; Bromley v. Mitchell, 155 Mass. 509, 30 N. E. 83; Myers v. Viverett, 110 Miss. 334, 70 So. 449; Diefendorf v. Dief- endorf, 132 N. Y. 100, 30 N. B. 375; Phifer v. MuUis, 167 N. C. 405, 83 S. E. 582; Book v. Book, 104 Pa. St. 240; Trumbauer v. Rust, 36 S. D. 301, 154 N. W. 801; Chrisman v. Wyatt, 7 Tex. Civ. App. 40, 26 S. W. 759; Jenkins v. Adcock, 5 Tex. Civ. App. 466, 27 S. W. 21; Pirie v. Le Saulnier, 161 Wis. 503, 154 N. W. 993. 74 Wall V. Wall, 30 Miss. 91, 64 Am. Dec. 147. The principle above mentioned is not in conflict with the rule which permits a person to settle property by deed to his own use during his life and after his de- cease to the benefit of other per- sons, although such disposition must postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, for the postponement in such case is by the express terms of the instrument and does not result from the nature of the in- strument. — Gillham v. Mustin, 42 Ala. 365. In Estate of Skerrett, 67 Cal. 585, 8 Pac. 181, a copy of a deed and a letter were admitted to pro- bate as an holographic will, the letter showing the animus testandl and the copy of the deed furnish- ing the date. A deed, although duly executed, does not take effect until delivery. Delivery may be actual or con- structive; the instrument may be actually handed to the grantee or to another for him; or delivery may be inferred from various cir- cumstances, although the custody remained in the grantor. Such an inference, however, is only pre- sumptive and may be overthrown by proof to the contrary. Where an instrument has been executed and delivered, the mere fact that the possession of the same has been retained by the maker does not prevent it from taking effect CLASSIFICATION AND FORM. 65 ered, is construed to be a deed, it is of no force or effect. In the absence of proper evidence showing that it was intended as a testamentary disposition, it must be refused probate and is therefore invalid for any purpose. § 57. The Same Subject: If the Instrument Becomes Operative Before the Maker's Death, It is Not a Will. It is sometimes difficult to determine whether an instru- ment is a deed or a will. The mere reservation of a life interest does not make an instrument testamentary. The distinguishing feature is as to when the interest in the property vests. If the document directs or confers any benefit during the life of the maker it is not a will. The instrument itself must expresslj"^ or impliedly postpone the vesting of all interest until after the testator's demise.'^^ Even though an instrument may have been made in contemplation of death, it does not become tes- tamentary unless it becomes operative only after the maker's death. Thus where a husband made a deed in — Hall V. Palmer, 3 Hare 532; was so is not controlling. Nor, in Fletcher v. Fletcher, 4 Hare 67; determining the character of such Doe d. Garnons v. Knight, 5 Barn, an instrument, does the fact that & Cr. 671; Exton v. Scott, 6 Sim. it contains all the formal requisites 31; Tharp v. Jarrell, 66 Ind. 52; of a deed and is couched in all the Pollock v; Glassell, 2 Gratt. (Va.) technical phraseology of such an 439. instrument, positively determine An instrument which was a deed its character. — Hester v. Young, when made is always a deed and 2 Ga. 31. can not be converted into a will. 75 Fletcher v. Fletcher, 4 Hare Nor does the recording of an in- 67; Phillips v. Phillips, 186 Ala. strument give it the character of 545, Ann. Cas. 1916D, 994, 65 So. a deed, for recording is only notice 49; Gillham v. Mustin, 42 Ala. 365; of the contents of the document Tennant v. John Tennant Memo- and does not affect its character, rial Home, 167 Cal. 570, 140 Pac. Such fact may be evidence that 242; Smith v. Corey, 125 Minn, the maker intended the instrument 190, 145 N. W. 1067. as a deed, but his belief that it I Com. on Wills — 5 66 COMMENTARIES ON THE LAW OF WILLS. favor of his wife and delivered it to a third person with instructions to keep the same until after his death, for the benefit of his wife, and then to record it, the delivery was complete, the grantee being presumed to have accepted the same for the reason that she was bene- fited thereby. It was held that the instrument had the effect of conveying a present interest in the property.^® §58. The Same Subject: The Provisions of an Instrument as Showing Its Character. The dispositions of property made by the maker of an instrument may show its character, irrespective of the form of the paper. If no interest is to pass until after the death of the maker it is testamentary in character. Thus an instrument in the form of a deed which provided "that the grantee is to take no interest during the lives of the grantors" was held to be testamentary and there- fore revocable even though it was claimed that a valid consideration had been paid." On the other hand, an instrument in the form of a deed may contain a clause whereby the grantor reserves the power of revoking or modifying certain portions of the document, yet if there has been no revocation, such a provision would not de- stroy the character of the instrument as a deed.''*' 76 Diefendorf v. Dlefendorf, 56 Spencer v. Robblns, 106 Ind. 580, Hun 639, 8 N. Y. Supp. 617. 5 N. E. 726; Von Hesse v. Mac- 77 Haz'leton v. Reed, 46 Kan. 73, Kaye, 136 N. Y. 114, 32 N. E. 615. 26 Am. St. Rep. 86, 26 Pac. 450; '" the following cases, instru- Leaver v. Gauss, 62 la. 314, 17 ments in the form of a deed and N. W. 522. containing the provisions herein 78 Tompson v. Browne, 3 Mylne mentioned, were held to be deeds & K. 32; Jones v. Clifton, 101 U. S. and not wills: 225, 25 L. Ed. 908; Hall v. Burk- ' "The title to the above-described ham, 59 Ala. 349; Hellman v. Mc- tract of land to still remain in said Williams, 70 Oal. 449, 11 Pac. 659; grantor for and during his life- CLASSIFICATION AND FORM. 67 § 59. The Same Subject: Various Provisions Construed. Very close questions may therefore arise. A party may make an instrument in the form of a deed, yet in the time, and at his death to vest in said" grantee. — White v. Hopkins, 80 Ga. 154, 4 S. E. 863. "This deed not to take effect until after my decease; not to be recorded until after my decease." — Shackelton v. Sebree, 86 111. 616. "Convey and warrant to" the grantee, naming him, "after my decease and not before, the follow- ing real estate," etc It was held that the words "after my decease" did not make the instrument testa- mentary in character, but operated merely to show that the grantee's use and enjoyment of the lands would not begin until after the grantor's death. — Owen v. Will- iams, 114 Ind. 179, 15 N. B. 678. "This deed not to take effect" until the grantor's death, "he to have and keep possession of said farm during his life." — Phillips v. Thomas Lumber Co., 94 Ky. 445, 42 Am. St. Rep. 367, 22 S. W. 652. "This deed or conveyance not to take effect during my life-time, and to take effect and be in force from and after my decease." — Wyman v. Brown, 50 Me. 139. "This deed is not to take effect and operate as a conveyance until after my decease." — ^A-bbott v. Hol- way, 72 Me. 298. "At my death to have and hold." — Chancellor v. Windham, 1 Rich. (S. C.) 161, 42 Am. Dec. 411. "This deed is made with the understanding that (the grantors) shall have all controlling power of the above described premises during their life-time, and at their death then the title is to pass." — Wlmpey v. Ledford, (Mo.) 177 S. W. 302. "This deed not to take effect until after my death." — Phillips v. Phillips, 186 Ala. 545, Ann. Gas. 1916D, 994, 65 So. 49. In the following cases the in- strument was held to be a deed or a contract: Jeffries v. Alex- ander, 8 H. L. Cas. 594; Alexander V. Brame, 35 E3ng. Law & Eq. 336; Bowdoin College v. Merritt, 75 Fed. 480; Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563; Bristol v. War- ner, 19 Conn. 7; Jackson v. Cul- pepper, 3 Ga. 569; Gumming v. Gumming, 3 Ga. 460; McGlawn v. McGlawn, 17 Ga. 234; Johnson V. Hines, 31 Ga. 720; White v. Hop- kins, 80 Ga. 154, 4 S. E. 863; Seals V. Pierce, 83 Ga. 787, 20 Am. St. Rep. 344, 10 S. E. 589; Guthrie v. Guthrie, 105 Ga. 86, 31 S. E. 40; (iay V. Gay, 108 Ga. 739, 32 S. E. 846; Wynn v. Wynn, 112 Ga. 214, 37 S. E. 378; Gates v. Gates, 135 Ind. 272, 34 N. E. 957; Wilson v. Carrico, 140 Ind. 533, 49 Am. St. Rep. 213, 40 N. E. 50 ; Nowakowski V. Sobeziak, 270 111. 622, 110 N. E. 809; Rawlings v. McRoberts, 95 Ky. 346, 25 S. W. 601; Mayor etc. of Baltimore v. Williams, 6 Md. 68 COMMENTAEIES ON THE LAW OP WILLS. latter portion thereof he may reserve to himself the use of the property during his life, it thereafter to go to the grantees named without condition or limitation. The declaration in the instrument that the property was to pass to the grantees after the death of the maker would show an intention not to convey a present interest and the document would be construed as testamentary. '^^ If, 235; Myers v. Viverett, 110 Miss. 334, 70 So. 449; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Reed v. Brown, 184 Mich. 515, 151 N. W. 592; Bromley v. Mitchell, 155 Mass. 509, 30 N. E. 83; Dlefendorf V. Dlefendorf, 132 N. Y. 100, 30 N. E. 375; Shields v. Irwin, 3 Yeates (Pa.) 389; Johnson v. Mo- Cue, 34 Pa. St. 180; Trumbauer V. Rust, 36 S. D. 301, 154 N. W. 801; Jaggers v. Estes, 2 Strob. Eq. (S. C.) 343, 49 Am. Dec. 674; Will- iams V. Sullivan, 10 Rich. Bq. (S. C.) 217, 219, In the following cases the in- strument was held testamentary in character: Metham v. Duke of Devon, 1 Peere Wms. 529; Green V. Proude, 1 Mod. 117; Haberg- ham V. Vincent, 2 Ves. Jun. 204; Seay v. Huggins, (Ala.) 70 So. 113; Hester v. Young, 2 Ga. 31; Symmes V. Arnold, 10 Ga. 506; Johnson v. Yancey, 20 Ga. 707, 65 Am. Dec. 646; Blackstock v. Mitchell, 67 Ga. 768; Johnson v. Sirmans, 69 Ga. 617; Ward v. Campbell, 73 Ga. 97; Stevenson v. Huddleson, 13 B. Mon. (52 Ky.) 299; Kelleher v. Kernan, 60 Md. 440; Terry v. Glover, 235 Mo. 545, 139 S. W. 337; Hunt v. Hunt, 4 N. H. 434, 17 Am. Dec. 434; Welch v. Klnard, 1 Speer's Eq. (S. C.) 256; Crawford v. Mc- Elvy, 2 Speer's Bq. (S. C.) 225, 230; Watkins v. Dean, 10 Yerg. (18 Tenn.) 321, 31 Am. Dec. 583; Pollock V. Glassell, 2 Gratt. (Va.) 439. 79 An instrument in the form of a deed which conveyed real prop- erty to a son, excepting and re- serving, nevertheless, the entire use and possession of the prem- ises unto the grantor and his as- signs for the term of his natural life, and which declared that the conveyance was in no way to take effect until after the decease of the grantor, the habendum clause being that the grantee was to hold the premises after the decease of the grantor, was held a will. — Turner v. Scott, 51 Pa. St. 126; Leaver v. Gauss, 62 la. 314, 17 N. W. 522. A written instrument in the form of a deed, if in substance a will, may be given in evidence as a will. — Green v. Proude, 1 Mod. 117. A disposition of property to take effect after the death of the grantor, is testamentary and there- fore revocable. — Frederick's Ap- peal, 52 Pa. St. 338, 91 Am. Dec. 159. To the same effect: Good- CLASSIFICATION AND FORM. 69 however, the grantor should reserve a life estate to him- self but, by the instrument, create an estate in remainder to certain grantees, an interest in the property would vest in such grantees at the time of the execution and delivery of the document. A present interest vesting, the instrument could not be held testamentary.*'' The ale V. Evans, 263 Mo. 219, 172 S. W. 370; Rice v. Carey, 170 Cal. 748, 151 Pac. 135; Terry v. Glover, 235 Mo. 545, 139 S. W. 337; Mur- phy V. Gabbert, 166 Mo. 596, 89 Am. St. Rep. 733, 66 S. W. 536. 80 A deed reserving a life estate to the maker and creating an estate in remainder can not oper- ate as a will. — Doe v. Cross, 8 Q. B. 714. Where a person makes a deed settling his property to his own use during his life and after his death to the benefit of other per- sons, a power of revocation re- served in the deed does not alter its character and thus render it tes- tamentary. — Tompson v. Browne, 3 Mylne & K. 32; Spencer v. Rob- bins, 106 Ind. 580, 5 N. B. 726. An instrument, in the form of a deed, executed jointly by a hus- band and wife, in favor of their children, was held a will because by the express terms of the instru- ment the property was not to pass to the children until after the death of the wife and until that event the property was to be held, owned and enjoyed by her, the husband by the terms of the in- strument being appointed executor and was to keep the property for two years after the death of his wife. — Mosser v. Mosser's Exec, 32 Ala. 551. See, also, Elmore v. Mustin, 28 Ala. 309 ; Allison's Exrs. V. Allison, 4 Hawks (11 N. C.) 141; Turner v. Scott, 51 Pa. St. 126. An instrument in the form of a deed contained the following reser- vation and condition: "First par- ties reserve unto themselves all the use, benefit and control of said land during the life of each or either of them. It is a part of the consideration of this conveyance that second party pay to each of his five sisters or their legal heirs the sum of fifty dollars on coming into possession of said land." It was held not testamentary. — Reed V. Brown, 184 Mich. 515, 151 N. W. 592. An agreement of husband and wife with a granddaughter where- by, in consideration of her caring for them during their lives, they were to convey certain lands to the granddaughter upon the per- formance of the conditions, also all the other property they might own at the time of their death, was held not to be testamentary, but to convey an equitable fee. — Phifer v. Mullis, 167 N. C. 405, 83 S. E. 582. See, also, Wimpey V. Ledford, (Mo.) 177 S. W. 302. A deed duly executed and deliv- 70 COMMENTABIES ON THE LAW OP WILLS. distinguishing feature in the two illustrations just given is that, in the first instance, had an estate in remainder been created, there would have been no reason for the maker of the instrument to have declared that the prop- erty was to go to the grantees absolutely and without condition after his death, for such would have been the case in the latter instance.'^^ If an instrument is in effect a deed, it can not be declared testamentary in character merely because it was executed and attested with the for- malities appropriate to a will. Thus a deed of gift of property, with a warranty of title, wherein the grantor reserved the use of the land to himself for life, although it was duly executed and attested before the number of witnesses required for wiUs, was held not to be a testa- mentary instrument.*^ § 60. An Instrument May in Part Be Effective Both as a Deed and as a Will. An instrument may be impressed with a double char- acter. Thus it may be a deed as to certain property regarding which it conveys a present interest, yet it may operate as a will as to other property; for instance, a party may in one single document convey a present interest in property to one person, either as a gift or for a consideration, and then in the same document be- queath or devise other property either to the same per- son or to another.** ered to a third person with Instruc- 82 Williams v. Tolbert, 66 Ga. tions to deliver the same only 127. after the death of the grantor, he 83 Taylor v. Kelly, 31 Ala. 59, reserving no right to recall the 68 Am. Dec. 150; Dudley v. Mal- instrument, was held not testa- lery, 4 Ga. 52; Robinson v. Schly, mentary. — Innes v. Potter, 130 6 Ga. 515; Burlington University v. Minn. 320, 153 N. W. 604. Barrett, 22 la. 60, 92 Am. Dec. 376. 81 Symmes v. Arnold, 10 Ga. 506. CLASSIFICATION AND FORM. 71 § 61. Instruments Testamentary in Character Are Invalid Un- less Executed as Required by the Law of WUls. An instrument, by reason of its testamentary nature and because of the fact that it was not executed with the formalities required in regard to wills, may fail to have any effect whatsoever, although it might have been effective had the maker intended it to operate during his life-time. Thus a written instrument which provided that "at my death my estate shall pay," etc., was held to be testamentary in character, but by reason of having been attested by one witness only, it created no claim against the estate of the maker.®* A writing directing the grantor's bankers to hold certain bonds for the benefit of his wife and further declaring "the assignment to take effect at my death, I controlling them in the meanwhile," was construed testamentary in character, but was held invalid because not executed in the manner prescribed by statute for the making of wills.®^ A written contract wherein one agreed that in consideration of being sup- ported during his life, all his personal property should at his death belong to another, was held not to constitute a will because informally executed.** If, however, through some technical defect the writing may not op- erate in tbe form in which it was intended and there is reasonable ground for doubt as to the true nature of the instrument, the courts will incline to that construc- tion which will support the instrument rather than to allow it to have no effect whatever.*'' If, however, an instrument is definite in character, the courts are not at 84 Moore v. Stephens, 97 Ind. 271. 87 Masterman v. Maberly, 4 Eng. 86 Comer v. Comer, 120 111. 420, Eoc. 108; s. c, 2 Hagg. Ecc. 235; 11 N. E. 848. Moye v. Klttrell, 29 Ga. 677, 88 McCarty v. Waterman, 84 Ind. 550. 72 COMMENTARIES ON THE LAW OF WILLS. liberty to convert it into an instrument of a different nature. § 62. An Instrument May Be Void Both as a Deed and a Will The effect which the maker intended, should be given to all instruments, irrespective of form or designation. Thus an instrument in the form of a deed and acknowl- edged as such will be declared a will if it appears that the manifest intent of the maker was that it was to take effect as a disposition of his property only after his death. If the instrument transferred a present interest in the property it would have to be declared a deed. If, however, it purported to transfer such present interest but was nugatory and conveyed no such interest, the law will give effect to the instrument as a will if it was executed with the proper formalities and would carry out the intent of the maker. But an instrument in the form of a deed and invalid as such will not be con- strued as a will, even though executed with the required formalities, if such construction would defeat the inten- tion of the maker. ^^ And, irrespective of the maker's in- tent, an instrument improperly executed according to the requirements of wills, will not be admitted to probate. Thus a document may be void both as a will and as a deed.^' § 63. Courts Will Not Violate the Law by Changing the Ex- press Character of an Instrument. An instrument in the form of a deed, executed according to the formalities required of mils but which can not take effect as a deed because of defects as to form, delivery, 88 Gage V. Gage, 12 N. H. 371. 748, 151 Pac. 135; Goodale v. 89 Habergham v. Vincent, 2 Ves. Evans, 263 Mo. 219, 172 S. W. 370. Jun. 204; Rice v. Carey, 170 Gal. CLASSIFICATION AND FORM. 73 and the like, will be admitted to probate as a will' if so doing would carry out the intention of the maker. This is done, however, only in those cases where the instru- ment itself, according to its form, can take effect as a will and where it is shoAvn that the intention of the maker was that the instrument should be testamentary in char- acter, that is, pass an estate after his death. If the instrument is neither a will nor a deed, the courts will not allow it to be effective in either character, for the intention of the maker should be defeated rather than the general law be violated. A case may therefore arise in which an instrument in the form of a deed may be declared to be a will and then, because of not having been executed according to the required formalities, be declared void. If an instrument, according to the rules of construction, should be considered as a will, the courts will not construe it to be a deed although it fails as, a will because of lack of proper execution. In such a case the intention of the maker was that the instrument should have a testamentary effect and the courts must, if lawful, give force to such intent. To change the character of an instrument would be to transform a will into a deed, thus making an irrevocable instrument out of one which is revocable, or, conversely, transforming a deed into a wUl, thus making revocable an instrument which in its very nature is revocable.®" § 64. The Presumption Arising Where a Will Consists of Sev- eral Sheets. It is a legal presumption that the number and ar- rangement of the papers bound together and consti- tuting the will as found at the testator's death, were the 90 Hester t. Young, 2 Ga. 31. 74 COMMENTARIES ON THE LAW OF WILLS. same as at the time of the execution thereof.®^ And this presumption was not rebutted in a case where on the death of the testator it was found that the original fourth page of his will had been removed and placed loose in his desk, that the original seventeenth page had been used by him in substitution of the fourth, and that the several pages had been tied together with tape."*^ It may be proven, however, that a certain sheet Avas not in the will when executed,** or that a clause was inserted with- out authority.®* In some cases, however, the courts seem to have inclined to the view that there was no presump- tion, having required in each case the person proposing the instrument to explain all suspicious phenomena.®^ Thus, where a will was written on several sheets of paper and fastened together with a string, whether any of them had been fraudulently added subsequent to exe- cution was considered a question of fact for the jury.*® It is not essential, however, that there should be actual mechanical connection betw^een the papers presented for probate as a will.®'^ And as to execution, unless there ex- 91 Marsh v. Marsh, 1 Sw. & Tr. Wall. 232, 17 L. Ed. 788; Bailey v. 528; B. c, 30 Law J. Prob. 77; Taylor, H Conn. 531, 534, 29 Am. Bamewall v. Murrell, 108 Ala. 366, Qec. 321; MiUiken v. Marlin, 66 111. 18 So. 831; In re Merryfield's Bs- ^g. j^^^h River Meadow Co. v. tate,167Cal.729 141Pac.259 Christ Shrewsbury C h u r c h, 22 Compare: Bond v. Seawell, 3 xt t t ^n^ ,ro » „ „,.o ^ Burr. 1775; Varnon v. Varnon, 67 N- J. L- 424, 53 Am. Rep. 258; Jor- Mo. App. 534. ^^"^ ^- Stewart, 23 Pa. St. 244. 92 Rees V. Rees, L. R. 3 P. & D. ®® Glnder v. Famum, 10 Pa. St. 84. But see Varnon v. Varnon, 67 98. Mo. App. 534, where this presump- *'' Marsh v. Marsh, 1 Sw. & Tr. tion was rebutted. Actual proof ^28; Jones v. Habersham, 63 Ga. will always overcome a presump- ^^^' Murrell v. Barnwall, 110 Ala. tlon 668, 20 So. 1021; Schillinger v. 93 Miller V. Travers, 8 Ring. 244. Bawek. 135 la. 131, 112 N. W. 210; 94 Charles v. Huber, 78 Pa. St. Sellards v. Kirby, 82 Kan. 291, 108 448. Pac. 73, 28 L. R. A. (N. S.) 270, 95 Smith V. United States, 2 136 Am. St. Rep. 110, 20 Ann. Cas. CLASSiriCATION AND FORM. 75 ists a statutory provision to the contrary, a will, although consisting of several sheets, may be signed and attested on the last one only.®* § 65. Other Writings May Be Incorporated in a Will by Ref- erence. A will may incorporate in itself, by reference, other papers and documents.®* Such writings need not all be verified by the signatures of the testator and the wit- nesses;^ it is sufficient if they appear upon the last sheet 214; Ela v. Edwards, 16 Gray (82 Mass.) 91; Murphy v. Clancy, 177 Mo. App. 429, 163 S. W. 915. The fact that a will Is written on more than one sheet of paper is Immaterial. — Estate of Taylor, 126 Cal. 97, 58 Pac. 454; Estate of Merryfield, 167 Cal. 729, 141 Pac. 259. 98 Cook V. Lambert, 3 Sw. & Tr. 46; Marsh v. Marsh, 1 Sw. & Tr. 528; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Jones v. Haber- sham, 63 Ga. 146; Wikoff's Appeal, 15 Pa. St. 281, 53 Am. Dec. 597. 99 Sandford v. Vaughan, 1 Phil- lim. 39; Molineux v. Molineux, Cro. Jac. 144; Hogg v. Lashley, 3 Hagg. Ecc. 415, n; Peacock v. Monk, 1 Ves. 127; Tomkyns v. Ladbroke, 2 Ves. Sen. 591; Singleton v. Tom- linson, 3 App. Cas. 404; Sheldon v. Sheldon, 1 Rob. Ecc. 81; Bizzey V. Flight, 3 Ch. Div. 269; In re Almosnino, 1 Sw. & Tr. 508; s. c, 29 Law J. Prob. 46; In re Harris, L. R. 2 P. & D. 83 ; In re Howden, 43 Law J. Prob. 26; In re Dickens, 3 Curt. 60; In re Willesford, 3 Curt. 77; In re Durham, 3 Curt. 57; In re Darby, 10 Jur. 164; Habergham v. Vincent, 2 Ves. Jun. 204; Beall v. Cunningham, 3 B Mon. (Ky.) 390, 39 Am. Dec. 469; Loring V. Sumner, 23 Pick. (Mass.) 98; Wilbar v. Smith, 5 Allen (Mass.) 194; Newton v. Seamen's Friend Soc, 130 Mass. 91, 39 Am. Rep. 433; Harvey v. Chouteau, 14 Mo. 587, 55 Am. Dec. 120; Jackson V. Babcock, 12 Johns. (N. Y.) 389 ; Chambers v. McDaniel, 28 N. C. 226; Tonnele v. Hall, 4 N. Y. 140. Compare: In re Sotheron, 2 Curt. 831; Dickinson v. Stidolph, 11 Com. B. N. S. 341. 1 Marsh v. Marsh, 1 Sw. & Tr. 528; Ela v. Edwards, 16 Gray (Mass.) 91; Newton v. Seamen's Friend Soc, 130 Mass. 91, 39 Am. Rep. 433. But compare: Hartwell v. Mar- tin, 71 N. J. Bq. 157, 63 Atl. 754; Booth V. Baptist Church, 126 N. Y. 215, 28 N. E. 238; Bryan's Appeal, 77 Conn. 240, 107 Am. St. Rep. 34, 1 Ann. Cas. 393, 68 L. R. A. 353, 58 Atl. 748. 76 commentaeies on the law op wills. 'Or upon tliat paper whieb ineorf)orates the others within itself.^ And although? the testimonium clause may refer to the preceding sheets as having "been signed, the will is not invalidated by reason of the testator's signature not appearing upon them.^ But where there were six pages constituting the writing offered for probate, the testator having written his name iipon five of them, and upon the sixth page were the testimonium and attesta- tion clauses and the signatures of the witnesses only, the writing on the fifth page breaking in the middle of a sentence and being continued on the sixth, although pro- bate of only the first five pages was asked, the whole instrument was rejected.* 2 Winsor v. Pratt, 5 Moore J. B. 484; s. c, 2 Brod. & B. 650; Ton- nele v. Hall, 4 N. Y. 140; Wikoff's Appeal, 15 Pa. St. 281, 53 Am. Dec. 597; Martin v. Hamlin's Exrs., 4 Strob. L. (S. C.) 188, 53 Am. Dec. 673; Ginder v. Farnum, 10 Pa. St. 98. Compare: Bond v. Seawell, 3 Burr. 1775 ; Marsh v. Marsh, 6 Jur. N. S. 380; s. c, 1 Sw. & Tr. 528; Rees V. Rees, L. R. 3 P. & D. 84. If a testator In his will refers expressly to a paper already writ- ten and so describes it that there can be no doubt of its Identity, and the will Is properly executed and witnessed, the other paper, whether executed or not, becomes a part of the will and such refer- ence has the same effect as if it , h a d been incorporated into the will. — Habergham v. Vincent, 2 Ves. Jun. 204, 228; Metham v. Duke of Devon, 1 Peere Williams, 529. But if it is a declaration of a future intention, that by some fu- ture paper he is going to do some- thing, it can not be suppor1- but views it as the separate act of each. After the death of the one first dying, the instrument may be off eTed and proved for probate as his will and the sig- natures, declarations and, acts of the others, although they may be admitted in evidence as part of the res gestce, may be regarded as surplusage in so far as prov- ing the will of the one deceased is concerned.^ The same testamentary document may thereafter, in the event it has not been revoked by a survivor, be admitted to pro- bate as his will. The property disposed of may be joint or separate, but the declared intentions of each testator affect only his own property or his share in joint prop- erty.* § 70. Mutual Testaments Under the Civil Law. Mutual testaments of two or more persons were ap- proved by the civil law, but conditions in a will "that 2 Ex parte Day, 1 Bradf. (N. Y.) Smith, 28 Ga. 98, 73 Am. Dec. 751; 476; In re Rogers, Appellant, 11 Murphy v. Black, 41 Iowa 488; Keith Me. 303; Allen v. Allen, 28 Kan. v. MiUer, 174 111. 64, 51 N. B. 151; 18 ; Chaney v. Home etc. Society, Gebrich v. Freitag, 213 111. 552, 104 28 111. App. 621. Am. St. Rep. 234, 2 Ann. Cas. 24, A paper purporting to be the will 73 N. E. 338; Hill v. Harding, 92 of a husband and wife, which was Ky. 76, 17 S. W. 199, 437; Gould v. all In the handwriting of the hus- Mansfield, 103 Mass. 408, 4 Am. band except the signature of the Rep. 573 ; Bower v. Daniel, 198 Mo. wife, was admitted to probate as 289, 95 S. W. 347; Ex parte Day, the holographic will of the hus- 1 Bradf. (N. Y.) 476; In re Raupp, band, the signature of the wife 31 N. Y. Supp. 680, 10 Misc. Rep. being surplusage. — In re Cole's 300; Matter of Diez, 50 N. Y. 88; Will, 171 N. C. 74, 87 S. E. 962. In re Davis' Will, 120 N. C. 9, 58 3 Goods of Lovegrove, 2 Sw. & Am. St. Rep. 771, 38 L. R. A. 289, Tr. 453; Denyssen v. Mostert, L. 26 S. E. 636; Betts v. Harper, 39 R. 4 P. C. 236; Dias v. De Livera, Ohio St. 639, 48 Am. Rep. 477; In 5 App. Cas. (P. C.) 123; Schuma- re Cawley's Estate, 136 Pa. St. ker V. Schmidt, 44 Ala. 454, 4 Am. 628, 10 L. R. A. 93, 20 Atl. 567; Rep. 135; Estate of Learned, 156 Prince v. Prince, 64 Wash. 552, Cal. 309, 104 Pac. 315; Evans v. 117 Pac. 255. JOINT, MUTUAL, OR '.RECIPROCAL WILLS. ' 85 are contrary to good, maimers " were unlawful; Thus, a will was unlawful where a testator disposed of his prop- erty to another or instituted such other as his heir or executor upon the condition that he should receive a like benefit. The rule of the civil law, however, did not include mutual testaments where, for instance, by reason of love, affection or family ties, two parties mutually or recip- rocally instituted each other as heir or executor, where the disposition was made by reason of affection, which is a just cause, and such wills were not made as an induce- ment offered by one to the other to make such a will.* §71. The Terms "Joint," "Mutual" and "Reciprocal" De- fined. There has been some confusion as to the exact meaning of the terms joint, mutual and reciprocal. The term "joint" has often been applied to wills where two or more persons have joined in the execution of a single document, and has likewise been applied where two tes- tators dispose of property owned by them jointly. Joint wills, to distinguish the same from mutual or reciprocal wills, might best be illustrated by two testators jointly making a disposition of their property, in whole or in part, to a third person, such wills being joint because jointly executed for the purpose of transferring property to one devisee. If two persons make testamentary dispo- sitions of their property in favor of each other or to the 4 Domat, Pt. 2, L.lb. 3, Tit. 1, act by two or more persons, either § 8, Art. 20 ; Digest, Lib. 28, Tit. 5. for the benefit of a third person. Mutual or reciprocal wills are to or under the title of reciprocal an extent prohibited in Louisiana, or mutual disposition." — La. Civ. the statute providing that "a testa- Code, Art. 1571; Oreline v. Heirs ment can not be made by the same of Haggerty, 12 La. Ann. 880. 86 commbntarhs on the law op "wills. survivor, whether in one or two documents, they are mutual or reciprocal wills.' § 72. Strict Construction of the Term "Joint Will," Strictly speaking, the law does not recognize such a thing as a "joint will" in the sense that two or more per- sons can jointly make one will. A will is the lawful intent of a competent person, legally expressed, regarding his estate and effective after his death. It must be the sole act of one person, declaring his intentions regarding what he wishes to be performed after his demise. It is inopera- tive during the life of the testator and is ambulatory in character. If two persons could jointly execute a single will, it could not be revoked except by the consent of both, since revocation requires the exercise of as much power as does the making of the will. To deprive a testator of the right of altering his intentions regarding the disposi- tion of his property would destroy the very essence of a will.« § 73. English Cases Construing Joint Wills. There has been great confusion among decisions as to what really constitutes a "joint will" and as to its valid- ity. The principle that there could not be a "joint wiU" was applied in the early case of Hobson v. Blackburn, 1 Addams 274, which has been widely quoted. A review of that case and of others following and distinguishing it, will best explain the nature of the so-called "joint will." In Hobson v. Blackburn, supra, a testamentary instrument jointly executed by three persons was pre- 6 Campbell v. Dunkelberger, 172 e Swinb. Wills, Pt. VII, Sec. XV; Iowa 385, 153 N.W. 56; In re Caw- Forse and Hembling's Case, 4 ley's Estate, 136 Pa. St. 628, 10 Coke 60b; Vynior's Case, 8 Coke L. R. A. 93, 20 AU. 567. 81b. JOINT, MUTUAL,, OE RECIPROCAL WILLS. 87 sented for probate as the will of one of the testators, al- though it had been revoked by such testator prior to his death. The joint will was presented upon the motion that it was irrevocable. Sir John NichoU rejected the docu- ment upon the principle that a joint will of that nature was unknown to the testamentary law of England. He stated that such a document might be valid as a compact between the parties and operative in equity to the extent of declaring the devisees under it to be trustees for the performance of the deceased's part of the contract, but if converted into a contract, the probate court had no jur- isdiction. He further stated that the idea of the will being irrevocable destroyed the very essence of the will. The statement in the above case that there could not be a "joint will" was unnecessary to its determination, but such statement has been widely quoted and followed in many decisions; it affected the writings of Jarman on Wills and Williams on Executors who have often been quoted as upholding the principle above mentioned. The decision in Earl of Darlington v. Pulteney, 1 Cowp. 260, was similar, wherein Lord Mansfield stated that there could not be a joint will. The validity of joint wills, however, was not involved in that case, as the point at issue was the proper execution of a certain power and the decision was that it should have been by deed rather than by will. § 74. Early English Cases Distingruished. In Goods of Stracey, 1 Deane & Sw. 6, a joint will of a husband and wife disposing of property over which each had the power of appointment, was held valid; the case of Hobson V. Blackburn, supra, being distinguished. Fol- lowing this, in the case of Goods of Raine, 1 Sw. & Tr. 144, 88 COMMENTARIES ON THE LAW OF WILLS. where two persons had executed one instrument wherein neither willed anything to the other and the document was, by its terms, to have no effect until the death of both, probate was denied, it being held that it was not a mutual will because it did not purport to leave anything to the survivor, nor a joint will as in the case of Goods of Stracey, supra. The case of Goods of Eaine, supra, was subsequently disapproved in Goods of Miskelly, Irish Eep. 4 Eq. 62. § 75. The Present Rule in England. The present law of England may be illustrated by the decisions in Goods of Lovegrove, 2 Sw. & Tr. 453, where a mutual will was held good as the will of the one first dying, it not having been revoked; and in Denyssen v. Mostert, L. R. 4 P. C. 236, where a will by a husband and wife in favor of each other was called a mutual will but construed as a separate wall of each, the disposition made by each testator being applicable only to his or her separate property or interest in joint property. § 76. American Cases Construing Joint Wills. In the United States, upon the authority of Earl of Dar- lington V. Pulteney and Hobson v. Blackburn, supra, the court, in Clayton v. Liverman, 19 N. C. 558, rejected a tes- tamentary document, jointly executed by two sisters, which devised their property to third parties ' ' after their decease." The court held that this instrument which declared by its terms that it was the united will of two persons and was designed to take effect after the death of both, could not be admitted to probate as the joint will of both or as the separate will of either, although the two testators died within a few days of each other. The court said that the paper did not purport to be the sep- JOINT, MUTUAL, OR EECIPEOCAL WILLS. 89 arate will of each but was a joint disposition of joint property after the death of both and that it could not be held the separate will of either because that would be de- claring it to be what it was not. The court further said that where such a document, although testamentary in form, manifests no more than an agreement between two persons, it can not be held testamentary in character; that it could not be held the separate declared intention of one, but rather a conclusion reached by an interchange of opinions and a compromise of interests in regard to property not exclusively belonging to either. Judge Dan- iels wrote a strong dissenting opinion. The case of Clayton v. Liverman, supra, was super- seded in the Will of Davis, 120 N. C. 9, 58 Am. St. Eep. 771, 38 L. E. A. 289, 26 S. E. 636, where the will of a husband and wife who had jointly devised property to a third person, was admitted to probate as the will of the husband, the wife at such time still being alive. The court, however, called attention to the fact that there was noth- ing in the will intimating survivorship or when it was to become operative, whether upon the death of one or both. In Lewis v. Scofield, 26 Conn. 452, 68 Am. Dec. 404, a mutual will was held to be the separate will of the one first dying. In State Bank, Admr. v. Bliss, 67 Conn. 317, 35 Atl. 255, a testamentary document executed by two sisters which described itself as a joint will, was held in- valid. The court said that as the instrument provided in terms that it should be probated only after the death of both testators, it was contrary to the declared principle that wills should be probated as soon as may be after the testator's death; also that such delay in probating the will would raise difficulties as to the payment of lega- cies and as to the care and management of the estate in 90 COMMENTARIES ON THE LAW OP WILLS. the meantime. In Schuinaker v. Schmidt, 44 Ala. 454, 4 Am. Eep. 135, however, the court stated that two or more may execute a Joint will which will be the separate will of each and require a separate probate on the death of each ; but further said that if the will so provides and the disposition of the property requires it, the probate may be delayed until the death of both or all testators. In Walker v. Walker, 14 Ohio St. 157, 82 Am. Dec. 474, a testamentary document was jointly executed by a hus- band and wife, each owning separate property, wherein each devised one-third of his and her individual property to the survivor for life, and jointly disposed of the re- mainder to other persons, the reciprocal bequests being by each separately, the other dispositions reading "we give and bequeath unto," etc. The instrument further declared "that in case either of us shall decease, the other surviving, the above will is to operate and be in force on the estate of such deceased person, from the time of his or her decease. ' ' The court relied upon Hobson v. Blackburn and Clayton v. Liverman, supra, and held the document to be neither the joint mil of both nor the separate will of either. The case of Walker v. Walker, supra, was distinguished in the case of Betts v. Harper, 39 Ohio St. 639, 48 Am. Eep. 477, in which a joint will, open to all the objections raised in the former case, was declared valid. § 77. Rule in England and in the United States. It is now well settled both in England and in the United States that joint, mutual or reciprocal wills, whether exe- cuted in one document or more, are valid as the separate wills of the testators. The separate will of each testator affects only his property or his interest in joint property, and becomes operative only at his death. JOINT, MUTUAL, OR RECIPEOCAL WILLS. 91 § 78. Construction of Joint Wills Controlled by Contents. A testamentary document jointly executed by two per- sons may declare in terms that it is the joint will of both and that the property disposed of shall pass to the dev- isees named after the death of the survivor, yet such an instrument may be admitted to probate in certain cases. The use of the word "joint" does not alter or affect the provisions of thfe will and the contents must control ; thus, where the surviving husband or wife would have been entitled to all the property of the other disposed of by a testamentary document jointly executed by both, in the event such other had died intestate, and the instrument contains nothing which would prevent revocation, there would be no impropriety in postponing the right of the beneficiaries to receive such property until after the death of both testators.'^ 7 In re Raupp's Will, 10 Misc. 300, 31 N. Y. Supp. 680. See, also, Sqhumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135. In Black v. Richards, 95 Ind. 184, a single testamentary docu- ment executed by two sisters, giv- ing certain property to the sur- vivor for life and after the death of both the property to go to third parties, and which Instrument also gave legacies to others, was held to have been properly admitted to probate as the will of both after the death of both and was not open to attack in an action of par- tition. As to the admissibility of evi- dence of parol declarations and surrounding circumstances to show the nature of an instrument of- fered for probate, see, ante, §§ 51, 52, 53. As to the admissibility of extrin- sic evidence as affecting the ques- tion of revocation, see, ante, § 54. As to the evidence necessary to establish agreements to execute mutual or reciprocal wills, see, post, §§ 92, 93. As to the admissibility of extrin- sic evidence to show whether or not the maker of a will intended it to be conditional, see, post, §§ 110, 111, 112. As to the extent to which parol declarations of a testator may be admitted to prove or disprove rev- ocation, see, post, §§ 124, 125, 126. As to the evidence necessary to prove a contract to make a will, see, post, §§ 136, 138, 139. 92 COMMENTARIES ON THE LAW OF WILLS. § 79. The Rule in Cases Where the Property Is to Pass Only After the Death of Both Joint Makers. Cases may arise, however, which are very difficult of solution, such as where a testamentary document jointly executed by two parties distinctly states that the property bequeathed or devised is not to pass until after the death of both and that it shall not be offered for probate until that time. In such an instrument various legacies may have been made to the survivor and also to third parties. The survivor can receive no benefit under the will if it can not become effective until after his death. The question then arises as to what is to become of the estate of the one first dying, pending the death of the other ; also how can such estate be managed or conserved, how shall the debts of the decedent be paid, and, in the meantime, what is to become of the legacies to third parties? The inter- pretation of such a document depends upon the general rules of construction, and if those parts of the joint in- strument which are invalid under the testamentary law are so related to other parts of the will that they can not be separated and distinguished, the whole instrument must fall.® 8 state Bank, Admr., v. Bliss, 67 As to the admissibility of extrin- Conn. 317, 35 Atl. 255. sic evidence to show whether or As to the admissibility of evi- not the maker of a will intended dence of parol declarations and j^ ^ ^^ conditional, see, post, surrounding circumstances to show ss no m 112 the nature of an instrument of- fered for probate, see, ante, §§ 51, 52, 53. As to the admissibility of extrin- admitted to prove or disprove rev- sic evidence as affecting the ques- ocation, see, post, §§ 124, 125, 126. tion of revocation, see, ante, § 54. ^^ ^ ^^^ evidence necessary to As to the evidence necessary to prove a contract to make a will, establish agreements to execute see, post, §§ 136, 138, 139. mutual or reciprocal wills, see, post, §§92, 93. As to the extent to which parol declarations of a testator may be JOINT, MUTUAL, OR EECIPEOCAL WILLS. 93 § 80. Wills in Their Nature Are Revocable. A will is not operative during the life of tlie testator and may be altered or revoked so long as the maker re- tains his testamentary capacity, without which he could not make a will. To hold that a will was irrevocable would be to deprive a testator of the right of altering his intentions regarding the disposition of his property. It is not within the power of any person to make a will which he can not alter or revoke, because no man can "alter the judgment of the law to make irrevocable, which is of its nature revocable."® § 81. Revocation of Joint Wills. Difficulty has sometimes arisen as to the construction of a testamentary document executed jointly by two or more persons which declares on its face that it is the "joint will" of the testators or that it is not to become effective until after the death of all. The question in such cases is whether the makers intended to postpone the vesting of title to the property in the various bene- ficiaries until after the death of all of the makers, and if so, whether such a provision under the particular circumstances of the case would be reasonable. The con- struction of such stipulations in wills has often been pre- sented to courts of equity in cases involving the enforce- ment of a contract to make a will, the point at issue being whether a will executed jointly by two or more parties was the result of a contract between the makers and if so, whether the contract itself should be enforced. In such cases the courts have sometimes said that the joint or mutual will was irrevocable, whereas the decisions in 9 Swinb. Wills, Pt. VII, Sec. XV; Coke 60b; Vynior's Case, 8 Coke Forse and Hembling's Case, 4 81b. 94 COMMENTAEEES ON THE LAW OP WILLS. legal effect were that the agreement which resulted in the will, being founded on a sufficient consideration and being valid, could be enforced; or that the survivor of two testators who had joined in the execution of a tes- tamentary document, had received benefits or advantages under the will of the other so that it would be inequitable for him to change his will, that of the other having be- come irrevocable by reason of death. In such oases equity will impose a trust. §82. Early English Decisions Regarding Revocation of Mu- tual Wills. One early decision has left its imprint upon the law re- garding the revocation of joint or mutual wills. In the case of Dufour v. Pereira, 1 Dick. 419, decided A. D. 1769, a husband and wife, pursuant to an agreement, jointly executed a testamentary document. Subsequently the husband died and the instrument was admitted to pro- bate as his will; later the wife made a different will. On the subject of revocation. Lord Camden said that the mutual will might have been revoked by both testators jointly or by either separately, provided the party intend- ing to revoke had first given notice to the other of his purpose; but that such a wiU could not be revoked dur- ing the joint lives of the two makers by either secretly nor by the survivor after the death of the other. The true force of Lord Camden's decision was that the joint will was the result of a contract between the parties which could not be rescinded without the consent of both and that one of the makers of such will having died and his part of the contract having been carried into execution, the court would not permit the other to violate the agree- ment ; that there was a reciprocity which ran throughout JOINT, MUTUAL, OE EECIPEOCAL WILLS. 95 the instrument and that the property of both testators had been put in a common fund and that every devise was the joint devise of both. Further, in the foregoing case, the wife had received benefits under the will exe- cuted by her husband and herself. It is an established rule that equity will not allow one person to receive ad- vantage under a contract and then refuse to t)erform his part of the agreement. § 83. The Case of Duf our v. Pereira Distinguished. The decision in Walpole v. Orford, 3 Ves. Jun. 402, de- cided A. D. 1797, was handed down by Lord Loughbor- ough, who had been of counsel in the case of Dufour v. Pereira, supra, which case he distinguishes and explains. It is shown that in the former case the document was considered as a contract rather than as a testament. In the latter case a mutual will, w^hich had been subsequently revoked, was denied probate. Lord Loughborough said that an agreement might be implied from the contem- porary execution of two mutual mils and from surround- ing circumstances, that it might be considered an honor- able engagement between the parties but that he could not direct the execution of such an agreement which rested upon nicer points than a court of justice could decide upon. He held that such an agreement would not be executed unless its terms were clear, certain and de- fined, unless the terms were equal and fair, and unless the agreement be proved in the manner required by law. § 84. Mutual Wills Refused Probate if Revoked. Although two persons may jointly execute a single document as their last wills, as has been before stated, the instrument must stand as the separate will of each. If such testamentary disposition of one has been revoked 96 COMMENTABIES ON THE LAW OF WILLS; by a subsequent will, the probate court can not refuse to admit the last will to probate upon the ground that the joint or mutual will was executed pursuant to an agree- ment and that the latter will was in violation of the terms of a contract theretofore entered into between the two testators. The jurisdiction to determine the existence of and to enforce a contract to make a mil is exclusively within a court of equity, and a court of probate can only view the instrument presented in the light of a will and not in the light of an agreement.^" Even though there may have been a valid contract to make a will, no action will lie to prevent the probate of a will different from that agreed upon, because it is the agreement which is enforced in equity by declaring the executor or devisees under such will to be trustees for the performance of the contract and therefore it is necessary that such will be admitted to probate. ^^ § 85. The Mere Execution of Mutual Wills Is Not Conclusive Proof of a Contract. The general rule seems to be, although not undisputed, that if two persons execute wills at the same time, either in one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation, without notice, by either during their joint lives.^^ The case is different, however, where the mutual 10 Walpole V. Orford, 3 Ves. Jim. tate, 66 Ore. 252, 134 Pac. 11; Bol- 402; Pohlman v. Untzellman, 2 man v. Overall, 80 Ala. 451, 60 Am. Lee Ecc. 319; Hughes v. Turner, Rep. 107, 2 So. 624; In re Caw- 4 Hagg. 30; Sumner v. Crane, 155 ley's Estate, 136 Pa. St. 628, 10 Mass. 483, 15 L. R. A. 447, 29 N. E. L. R. A. 93, 20 Atl. 567. 1151. 12 Denyssen v. Mostert, L. R. 4 11 Allen V. Bromberg, 147 Ala, P. C. 236; Wanger v. Marr, 257 317, 41 So. 771; In re Burke's Es- Mo. 482, 165 S. W. 1027; overrul- JOINT, MUTUAL, OR RECIPEOCAL WILLS. 97 or reciprocal wills are the result of a contract based upon a valid consideration, where there has been a join- ing of property interests for the purpose of making a tes- tamentary disposition of the same, or where, after the death of one, the survivor has accepted benefits under the will of the other which was executed pursuant to an agreement. In such cases, where all the facts are fully established, equity will interpose to prevent fraud. This, however, can be accomplished only through a court of equity, the probate court having no jurisdiction.^^ The weight of authority is that such agreements to make wills are not established merely because two per- sons have made reciprocal testamentary dispositions in favor of each other, the language of such wills contain- ing nothing to the effect that the instruments were the result of a contract. Some jurisdictions, however, have held that such fact causes the presumption to arise that the wills were executed pursuant to an agreement. The reasoning in such cases, however, does not seem cogent and general facts and circumstances are included to aid in arriving at the conclusion. Of course, in a proper case, where the question of a contract arises, the fact of the execution of mutual or reciprocal "wills may be intro- ing Bower' V. Daniel, 198 Mo. 289, that "because the will happens to 325, 95 S. W. 347; Edson v. Par- be made in conformity to some sons, 85 Hun (N. Y.) 263, 32 N. Y. agreement, or contains on its face Supp. 1036; affirmed in Edson v. matter of agreement, or shows Parsons, 155 N. Y. 555, 50 N. E. mutuality of testamentary inten- 265; In re Davis' Will, 120 N. C. 9, tion between two persons, and a 58 Am. St. Rep. 771, 38 L. R. A. compact or intention not to re- 289, 26 S. E. 636; In re Cawley's voke, it is none the less a will." Estate, 136 Pa. St. 628, 10 L. R. A. 13 in re Sandberg's Will, 7S 93, 20 Atl. 567; Prince v. Prince, Misc. Rep. 38, 134 N. Y. Supp. 869; 64 Wash. 552, 117 Pac. 255. in re Davis' Will, 120 N. C. 9, 58 In Ex parte Day, 1 Bradf. (N. Y.) Am. St. Rep. 771, 38 L. R. A. 289, 476, the court says that the fact 26 S. E. 636. I Com. on Wills— 7 98 COMMENTARIES ON THE LAW OF WILLS. duced in evidence as tending to prove a contract, but it is not conclusive. Even though a presumption is claimed, yet a presumption should not take the place of proof. It should require something more than the mere making of reciprocal testamentary dispositions to convert a revoca- ble instrument into an irrevocable compact. And where such wills are executed by relatives because of love, affec- tion or family ties, such facts would seem to negative any agreement between the parties based upon a fixed con- dition. In the absence of fraud or an agreement the sur- vivor may revoke his will, although the other has died and his will has therefore become irrevocable.** 14 Denyssen v. Mostert, L. R. 4 P. C. 236; Schumaker v. Schmidt, 44 Ala. 454, 4 Am. Rep. 135; Car- michael v. Carmichael, 72 Mich. 76, 16 Am. St. Rep. 528, 1 L. R. A. 596, 40 N. W. 173; Wanger v. Marr, 257 Mo. 482, 165 S. W. 1027; Ex parte Day, 1 Bradf. (N. Y.) 476; Herrick v. Snyder, 27 Misc. Rep. 462, 59 N. Y. Supp. 229; Ed- son V. Parsons, 85 Hun (N. Y.) 263, 32 N. Y. Supp. 1036; Edson V. Parsons, 155 N. Y. 555, 50 N. E. 265; In re Davis' Will, 120 N. C. 9, 58 Am. St. Rep. 771, 38 L. R. A. 289, 26 S. E. 636; Sappingfield v. King, 49 Ore. 102, 109, 8 L. R. A. (N. S.) 1066, 89 Pac. 142, 90 Pac. 150; In re Cawley's Estate, 136 Pa. St. 628, 10 L. R. A. 93, 20 Atl. 567; Wilson V. Gordon, 73 S. C. 155, 160, 53 S. B. 79, 81; Wyche v. Clapp, 43 Tex. 543; Prince v. Prince, 64 Wash. 552, 117 Pac. 255. But see: Campbell v. Dunkel- berger, 172 Iowa 385, 153 N. W. 56; Breathitt v. Whittaker's Ex'rs, 8 B. Mon. (47 Ky.) 530; Bower v. Daniel, 198 Mo. 289, 325, 95 S. W. 347. Overruled In Wanger v. Marr, 257 Mo. 482, 165 S. W. 1027; Brown V. Webster, 90 Neb. 591, 37 L. R. A. (N. S.) 1196, 134 N. W. 185; Ras- tetter v. Hoenninger, 151 App. Div. 853, 136 N. Y. Supp. 961; affirmed in Rastetter v. Hoenninger, 214 N. Y. 66, 108 N. E. 210. In Wanger v. Marr, 257 Mo. 482, 165 S. W. 1027, the court dis- tinguished and questioned the de- cision in Bower v. Daniel, 198 Mo. 289, 325, 95 S. W. 347, stating that it had Incorrectly quoted from the decision of Carmichael v. Car- michael, 72 Mich. 76, 16 Am. St. Rep. 528, 1 L. R. A. 596, 40 N. W. 173, and held that In so far as the case of Bower v. Daniel had ruled that the execution of a joint will was enough in Itself to show an agreement. It was not supported by authority. This case also quoted with ap- JOINT, MUTUAL, OR EECIPROCAL WILLS. 99 § 86. Revocation of Mutual Wills in Some Cases Can Cause No Injury. As wills in their nature are ambulatory and can not become effective until the death of the maker, there seems to be no reason why, even in equity, mutual or reciprocal wills, executed by two persons in favor of the other who should survive the one dying first, should not be revoked, without notice, at any time during their joint lives, or proval Edson v. Parsons, 155 N. Y. 568, 50 N. B. 265, to this efEect: "To attribute to a will the qual- ity of irrevocability demands the most indisputable evidence of the agreement which is relied upon to change its ambulatory nature, and that presumptions will not, and should not, take the place of proof." To the same effect: Wilson v. Gordon, 73 S. C. 155, 160, 53 S. E. 79, 81; Sappingfleld v. King, 49 Ore. 102, 109, 8 L. R. A. (N. S.) 1066, 89 Pac. 142, 90 Pac. 150; Herrick v. Snyder, 27 Misc. Rep. 462, 59 N. Y. Supp. 229. The case of Campbell v. Dun- kelberger, 172 Iowa 385, 153 N. W. 56, follows the case of Bower v. Daniel, supra, to the effect that a contract could be implied from the' terms of a joint will, this lan- guage being quoted: "This aged and infirm couple, each owning property, made said will together, for the purpose of disposing and distributing their property equi- tably among their children; that the provisions of the will were re- ciprocal; and that but for these mutual bequests the parties would, in all probabilities, have made sep- arate wills." The case of Camp- bell V. Dunkelberger, supra, how- ever, holds that to deny a testator the right of revocation, the will itself must show an agreement not to revoke or such agreement must be established by clear and satis- factory evidence; but even in such cases either party to joint or mu- tual wills can revoke his testa- ment by giving notice to the other. In Brown v. Webster, 90 Neb. 591, 37 L. R. A. (N. S.) 1196, 134 N. W. 185, the court held that where a husband and wife had orally agreed that the survivor should have all the property of the one first dying and had exe- cuted reciprocal wills to carry out the agreement, the execution of the will by the wife and her keep- ing her part of the contract by never revoking her will, was such part performance of the agree, ment as would take the case out of the statute of frauds and was a good consideration for the con- tract, the court holding further that the agreement and the execu- tion of the wills was all part of the contract and constituted a sin- gle transaction. The husband be- 100 COMMENTAEIES ON THE LAW OF WILLS. even by the survivor after the probate of the will of the one first dying. The instance referred to is where the property of each testator is to go to the other only, there being no bequests or devises to third persons or any re- mainder over. In such a case no third party could be injured. The survivor could not be injured by his own revocation and the one who is already dead could re- ceive no benefit under the will of the one still living. The first decedent could have received no benefit during his fore his death having made a dif- ferent will from the one agreed upon and without notice to his wife, specific performance of the contract was decreed. In Breathitt v. Whittaker's Ex'rs, S B. Mon. (47 Ky.) p30, the court held that to revoke a will reciuires the same exercise of power as to make a will and that if two minds unite in a testamentary disposi- tion, the same two minds must unite to revoke it. In this case, however, the court apparently viewed the document in the light of the exercise of a joint power. The case of Rastetter v. Hoen- ninger, 151 App. Div. 853, 136 N. Y. Supp. 961, affirmed in Rastetter v. Hoenninger, 214 N. Y. 66, 108 N. E. 210, was an action to specifically enforce the provisions of a will, the petition not alleging any agree- ment between the testators to ■ make a will and no proof being in- troduced on that point. The facts of the case were that a husband and wife had jointly executed a testamentary document, the fol- lowing being declared at the be- ginning and being repeated at the ending: "This and this only to be our last mutual and joint will." The instrument also used the words "we give," "our property," and that it was to "be divided." The majority of the court held that the instrument showed on its face an agreement to make a will- and it was neither necessary to allege nor prove a contract, the execution of the instrument being sufficient. The minority dissented on the ground that such an agree- ment could only be found from the acts and circumstances surround- ing the transaction and the mu- tual relationship of the parties, and that it could only be found as a fact, not as a matter of law. In the main and in the affirming opinions the words "This to be our last mutual and joint will" were held to indicate an understanding that neither of the testators would make any different disposition of his or her property; and that the words "we give" and "our prop- erty" indicated a joint purpose which was further borne out by the use of the words "to be di- vided" after the death of the sur- JOINT, MUTUAL, OE BECIPEOCAL WILLS. 101 lifetime and Ms death precluded him from receiving any- reciprocal advantage under the will of the other. If the one who dies first has revoked his will, the survivor is not injured, for he has the like power of revocation. Injury could result only in those instances where the two parties die within a short time of each other. § 87. Equity Will Interpose Where Revocation Results in Fraud. There are cases, however, where it would be a fraud for the survivor of two who had, pursuant to an agreement, made wills in favor of each other and certain third persons, to alter or revoke on his part the testa- mentary dispositions so mutually made, after the will of the other had become irrevocable through death. In such a case equity will step in to prevent fraud and will compel performance, viewing the matter as a contract rather than as a wiU.^^ Equity, however, can deal only vivor, no express words of devise that they could be read and Con- or bequest being employed. On strued together as one Instrument, the final appeal, however, the Therefore, after the death of one- court stated that the mere fact the mutual will signed by the sur- of two persons jointly executing a vivor might be evidence in writ- testamentary document wherein ing of a declaration of a trust or they made reciprocal dispositions as evidence of a trust admitted in in favor of each other may not in writing. itself establish a contract, but that ib Denyssen v. Mostert, L. R. 4 the language used in the instru- P. C. 236; Schumaker v. Schmidt, ment in question was sufficient for 44 Ala. 454, 4 Am. Rep. 135; Camp- the purpose. bell v. Dunkelberger, 172 Iowa 385, In Keith v. Miller, 174 111. 64, 153 N. W. 56; Edson v. Parsons, 85 51 N. E. 151, where a husband and Hun (N. Y.) 263, 32 N. Y. Supp. wife made mutual wills, by two 1036, affirmed in 155 N. Y. 555, 50 separate instruments, in favor of N. E. 265; Rastetter v. Hoennin- each other and their children, it ger, 151 App. Div. 853, 136 N. Y. was held that the execution of Supp. 961, affirmed in 214 N. Y. the documents could be shown as 66, 108 N. E. 210; Prince v. Prince, evidence of one transaction and 64 Wash. 552, 117 Pao. 255. 102 COMMENTAEIES ON THE LAW OP WILLS. with the agreement, or interpose to prevent a wrong, but it has no jurisdiction over a will, that belonging pe- culiarly to the probate court.^® § 88. Acceptance of Benefits : Revocation by Survivor a Fraud. Where two- parties have made mutual wills in favor of each other, whether pursuant to a valid agreement or not, if the survivor receives benefits under the will of the other who has died without having revoked the same and under the belief that the will of the survivor would not be altered, the revocation by the survivor of bis will would be such a fraud as equity would prevent. Such wills are in effect the separate will of each maker and ' the right of revocation is undisputed except in those cases where it would be a fraud against the estate of the de- cedent to allow the survivor to receive a benefit or advan- tage under the will of the one first dying and thereafter to make a different disposition of his property. Where mutual or reciprocal wills have been made pursuant to an agreement which has been executed by one of the tes- tators dying without having made any different testa- mentary disposition of this property, and the other has accepted the benefits accruing to him under the will of the deceased, the agreement becomes obligatory upon the survivor and may be enforced in equity against his estate." 16 Pemberton v. Pemberton, 13 Cas, 1003, 27 L. R. A. (N. S.) 508, Ves. Jun. 290; Jones v. Jones, 3 90 N, E. 216; Baker v. Syfritt, 147 Merivale 161. Iowa 49, 125 N. W. 998; Campbell 17 Denyssen v. Mostert, L. R. 4 v. Dunkelberger, 172 Iowa 385, 153 P. C. 236; Schumaker v. Schmidt, N. "W. 56; White v. Winchester, 44 Ala. 454, 4 Am. Rep. 135; Bol- 124 Md. 518, Ann. Cas. 1916D 1156, man v. Overall, 80 Ala. 451, 60 92 Atl. 1057; Carmlchael v. Car- Am. Rep. 107; 2 So. 624; Frazier mlchael, 72 Mich. 76, 16 Am. St. V. Patterson, 243 111. 80, 17 Ann. Rep. 528, 1 L. R. A. 596, 40 N. W. JOINT, MUTUAL, OR RECIPROCAL "WILLS. 103 § 89. Consolidation of Property for Purposes of a Will : Effect on Power of Revocation. Two parties, such as a husband and wife, each owning separate property or having interests in joint property, may unite their separate estate or commingle their joint interests and join in the execution of a testamentary doc- ument for the purpose of disposing of all of the property of both. In such a case the facts may show that the parties came to a mutual imderstanding and that the making of the will by one was the inducement for the making of the will by the other. If one of the parties dies and the survivor accepts benefits under the will of the other, the power of revocation may be denied the sur- vivor to the extent that equity will enforce the provisions of 'the will against the estate of the survivor and against 173; Robertson v. Robertson, 94 Miss. 645, 136 Am. St. Rep. 589, 47 So. 675; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347; Brown v. Webster, 90 Neb. 591, 37 L. R. A. (N. S.) 1196, 134 N. W. 185; John- son V. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773; Deseumeur v. Rondel, 76 N. J. Bq. 394, 74 Atl. 703; Edson v. Parsons, 85 Hun (N. Y.) 263, 32 N. Y. Supp. 1036; Edson V. Parsons, 155 N. Y. 555, 50 N. E. 265; Rastetter v. Hoen- ninger, 214 N. Y. 66, 108 N. E. 210; In re Davis' Will, 120 N. C. 9, 58 Am. St. Rep. 771, 38 L. R. A. 289, 26 S. E. 636; Turnipseed t. Sir- rine, 57 S. C. 559, 76 Am. St. Rep. 580, 35 S. E. 757; Larrabee v. Por- ter (Tex. Civ.), 166 S. W. 395; Prince v. Prince, 64 Wash. 552, 117 Pac. 255; Allen v. Boomer, 82 Wis. 364 52 N. W. 426. See, also: Izard v. Middleton, 1 Desaus. (S. C.) 116 and note, where the old English cases have been collected. A recent case has gone to rather extreme lengths in enforcing an oral agreement to will property. An aunt and a niece had orally agreed to make wills in favor of each other. The aunt made her will as agreed, but the niece died first without having performed iher part of the agreement. The court said that if the aunt had died first, the niece would have re- ceived property under the aunt's will. The case was likened to that of a policy of life insurance which, had the aunt taken it out tor the benefit of her niece, would have been an expense in the pay- ment of premiums. It was held that the niece received practically 104 COMMENTAEIES ON THE LAW OF WILLS. all who hold under him with notice of the provisions of the will or without value.^* § 90. Secret Revocation May Result in Fraud. Although there has been a consolidation of property interests by two parties for the purpose of mutually dis- posing of the same by last will and testament, or although two testators may have made mutual wills in favor of the same benefits, the court say- ing: "It will not do to say that she (niece) received no benefit as the plaintiff (aunt) did not die, any more than it would lie in the mouth of a man who paid his pre- mium of insurance with a note to say there was a failure of consid- eration, as he did not die, or his property was not burned." It was held that it would be a fraud upon the rights of the aunt to have allowed the niece to have received such benefits and for her estate not to account for the same; that the retention of the benefits by the niece would raise an implied agreement to compensate therefor and that resort might be had to the original contract to ascertain what compensation was contem- plated by the parties; that even though the court could not make a will for the deceased niece, it could determine that the aunt was the equitable owner of the prop- erty. — Turnipseed v. Sirrine, 57 S. C. 559, 76 Am. St. Rep. 580, 35 S. E. 757. The case of Turnipseed v. Sir- rine, supra, questions Izard v. Mid- dleton, 1 Desaus. (S. C.) 116, Inti- mating that the making of the will by the aunt was such part performance as would take the oral agreement out of the Statute of Frauds. isCarmichael v. Carmichael, 72 Mich. 76, 16 Am. St. Rep. 528, 1 L. R. A. 596, 40 N. W. 173; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347. In Carmichael v. Carmichael, 72 Mich. 76, 16 Am. St. Rep. 528, 1 L. R. A. 596, 40 N. W. 173, where a husband and wife had made mu- tual wills in favor of each other and their children upon an agree- ment as to a division of their prop- erty, it was held that after the death of the husband the wife could not change or revoke her will and transfer the property to certain children to the detriment of the others, contrary to the agreement, and that equity would specifically enforce the contract. In Deseumeur v. Rondel, 76 N. J. Eq. 394, 74 Atl. 703, where a hus- band and wife jointly executed a single testamentary document dis- posing of their property for life and thereafter to certain heirs, which instrument declared in JOINT, MUT0AL, OE EECIPEOCAL WILLS. 105 each other pursuant to an agreement, yet either testator would have the right of revocation during their joint lives upon giving notice to the other. A will is by nature revo- cable and the giving of notice would prevent fraud. The right of revocation is absolute, but a secret revocation, in many instances, would be a fraud against the estate of the other. Whether or not it would result in fraud depends upon the particular circumstances of the case. If one party should revoke secretly and thereafter receive bene- fits under the will of the other, equity will specifically enforce the agreement.^* § 91. Agreements to Make Mutual Wills May Be Written or Oral : Points Arising in Each Case. The distinguishing feature of a will is that the testator may revoke it at any time, yet this right may be re- nounced. He may contract to make a will containing cer- tain dispositions which shall not be altered or cancelled, and such agreement, if based upon a sufficient considera- tion, is valid and will be enforced in equity, terms "it is our mutual will and posed of property of the husband, intention that this disposition of yet she dying first and he having our whole estate, real and per- accepted benefits under it, the law sonal, shall take effect upon the having put him to the election of demise of the survivor of us," the accepting its provisions, he was husband died first and the wife held bound by its terms. As to having received benefits under the equity enforcing agreements to will, equity decreed specific per- devise property, see, post, §§ 145, formance of the agreement, al- 146. though the wife subsequently re- 19 Denyssen v. Mostert, L. R. 4 married and made a new will P. C. 236; Robinson v. Mandell, revoking the former mutual will. Fed. Cas. No. 11959, 3 Cliff. 169; In Allen v. Boomer, 82 Wis. 364, Campbell v. Dunkelberger, 172 52 N. W. 426, where a husband Iowa 385, 153 N. W. 56; Frazier v. and wife had executed similar Patterson, 243 111. 80, 17 Ann. Cas. wills pursuant to an agreement, 1003, 27 L. R. A. (N. S.) 508, although the will of the wife dis- 90 N. B. 216; Johnson v. Hubbell, 106 COMMENTAKIES ON THE LAW OP WILLS. A party may agree with another to will him his prop- erty in consideration of the other making a like testa- mentary disposition in his favor. Such an agreement might be in writing and could be expressed in two ways, either in a separate paper duly executed by the parties or it might be contained in the language of the wills. If the wills recite that they were made pursuant to an agree- ment, such statements are accepted as evidence of the fact,^" or it could likewise be proven by the introduction of the written contract. Where the only consideration for the promise not to revoke a will is that another has agreed to do likewise, there could be no fraud perpetrated should one testator, before the death of the other, revoke his will after having given the other due notice of his intention. Where the agreement to make a will in a cer- tain manner is based upon a sufficient consideration, such as services to be rendered and the like, a different situa- tion arises which will be dealt with under contracts to make wills. But in those cases where two testators have made reciprocal dispositions in favor of each other pur- suant to an oral agreement so to do, and one party has died and the survivor has accepted benefits under the will of the deceased, it then becomes a matter of importance as to the proof which is required to establish the fact of the oral contract so that it may be enforced. 10 N. J. Eq. 332, 66 Am. Dec. 773; 190, 4 Am. Dec. 609; Larrabee v. Deseumeur v. Rondel, 76 N. J. Eg. Porter, (Tex. Civ.) 166 S. W. 395. 394, 74 Atl. 703; Edson V. Parsons, See, also, Izard v. Middleton, 1 85 Hun (N. Y.) 263, 32 N. Y. Supp. Desaus. (S. C.) 116, and note, 1036; Edson v. Parsons, 155 N. Y. where the old English cases on 555, 50 N. B. 265; Rastetter v. the subject have been collected. Hoenninger, 151 App. Div. 853, 136 20 Jamison v. McCormlck, 172 N. Y. Supp. 961, affirmed in 214 Iowa 666, 154 N. W. 898; Campbell N. Y. 66, 108 N. E. 210; Rivers v. v. Dunkelberger, 172 Iowa 385, 153 Rivers' Exrs., 3 Desaus. (S. C.) N. W. 56; Bastetter v. Hoenninger, JOINT, MUTUAL, OE EECIPEOCAL "WILLS. 107 § 92. Evidence Necessary to Establish an Oral Agreement to Execute Mutual Wills. The burden of proof is upon the person seeking to establish, the fact that a will was or should have been executed pursuant to a contract. Any oral agreement which would rob a will of its distinguishing feature, namely, irrevocability, should not be considered as estab- lished unless shown by the most clear and convincing legal proof that it was executed pursuant to a definite agreement and that the consideration was the execution of mutual or reciprocal wills. Oral contracts to will prop- erty are viewed with distrust. This subject is more fully dealt with under contracts to make wills.^^ Evidence, however, of parol declarations and extrinsic circum- stances may be admitted to show the agreement ; the rela- tionship of the parties and surrounding circumstances may likewise be considered. Declarations made at the time the wills were executed would be received as part of the res gestce. Parol declarations, however, are not suffi- cient to establish the contract, but may be considered in 151 App. Div. 853, 136 N. Y. Supp. 8 L. R. A. (N. S.) 1066, 89 Pac. 961, affirmed in 214 N. Y. 66, 108 142, 90 Pac. 150; Herrick v. Sny- N. E. 210. der, 27 Misc. Rep. 462, 59 N. Y. 2iPrice V.Wallace, 224 Fed. 576; Supp. 229; In re McMillan's Es- Frazier v. Patterson, 243 111. 80, tate, 167 App. Div. 817, 153 N. Y. 17 Ann. Cas. 1003, 27 L. R. A. Supp. 400; Lasher v. McDermott, (N. S.) 508, 90 N. E. 216; Beving- 91 Misc. Rep. 305, 154 N. Y. Supp. ton V. Bevington, 133 Iowa 351, 798; Edson v. Parsons, 85 Hun 12 Ann. Cas. 490, 9 L. R. A. (N. S.) (N. Y.) 263, 32 N. Y. Supp. 1036; 508, HON. W. 840; Boeck v. Milke, Edson v. Parsons, 155 N. Y. 555, 141 Iowa 713, 118 N. W. 874, 120 50 N. E. 265; Hamlin v. Stevens, N. W. 120; Campbell v. Dunkel- 177 N. Y. 39, 69 N. E. 118; Wallace berger, 172 Iowa 385, 153 N. W. v. Wallace, 216 N. Y. 28, 109 N. E. 56; Stennett v. Stennett, (Iowa) 872; Wilson v. Gordon, 73 S. C. 156 N. W. 406; Wanger v. Marr, 155, 160, 53 S. B. 79, 81; Prince v. 257 Mo. 482, 165 S. W. 1027; Sap- Prince, 64 Wash. 552, 117 Pac. 255. pingfleld v. King, 49 Ore. 102, 109, As to oral contracts to will prop- 108 COMMENTAEIBS ON THE LAW OF WILLS. connection witli surrounding circumstances.^^ Of course positive testimony by disinterested witnesses who were present at the time the agreement was made and who heard and understood its conditions, if undisputed and in accord with the actions of the parties, would be sufficient. § 93. The Same Subject: Where Fraud Is an Issue. The question of the mental capacity of one of the testa- tors to make a will, or of fraud or undue influence in securing the agreement, may be involved. Evidence of the fact of an agreement to make mutual or reciprocal wills and of part performance of the same may properly be admitted in evidence in the probate court on the issue of testamentary capacity. All the circumstances sur- rounding the execution of a will have a bearing on its erty being viewed with distrust, see, post, §§ 135, 137, 138. 22 Price V. Wallace, 224 Fed. 576; Rogers v. Schlotterback, 167 Cal. 35, 138 Pac. 728; Blanc v. Con- nor, 167 Cal. 719, 141 Pac. 217; Collar V. Patterson, 137 111. 403, 27 N. E. 604; Slonlger v. Sloniger, 161 111. 270, 43 N. B. 1111; Cessna V. Miller, 85 Iowa 725, 51 N. W. 50; Thompson v. Romack, (Iowa) 156 N. W. 310; Lacey v. Zeigler, 98 Neh. 380, 152 N. W. 792; Spraker V. Dow, 48 Hun (N. Y.) 619, 1 N. Y. Supp. 240; In re McMillan's Es- tate, 167 App. Div. 817, 153 N. Y. Supp. 400; Taylor v. Higgs, 202 N. Y. 65, 95 N. E. 30; Wallace v. Wallace, 216 N. Y. 28, 109 N. E. 872; Dyess v. Rowe, (Tex. Civ.) 177 S. W. 1001. As to the admissibility of evi- dence of parol declarations and surrounding circumstances to show the nature of an instrument offered for probate, see, ante, §§ 51, 52, 53. As to the admissibility of ex- trinsic evidence as affecting the question of revocation, see. ante, §54. As to the construction of joint wills being controlled by their contents, see, ante, §§ 78, 79. As to the admissibility of ex- trinsic evidence to show whether or not the maker of a will In- tended it to be conditional, see, post, §§ 110, 111, 112. As to the extent to which parol declarations of a testator may be JOINT, MUTUAL, OH EECIPEOCAL WILLS. 109 validity, and if not part of the res gestcB in connection with the due execution of the document, they are part of the res gestce where the issue is raised of fraud or undue influence in procuring the execution of the will.^* § 94. Effect of Bad Faith in Failing to Make a Will as Agreed. If two parties enter into an agreement to make mutual wills in favor of each other and such agreement is in a form to render it binding, although the contract may be enforced in equity by the survivor against the estate of the one failing to perform his part of the contract, yet if the one who dies first shall have made his will as agreed, bad faith on the part of the one surviving in having failed to perform his part of the contract does not affect the will of the first decedent.^* This principle, however, must not be confounded with that governing cases where wills have been denied probate because of having been obtained through fraud or undue influence. admitted to prove or disprove rev- wills being controlled by their con- ocation, see, post, §§ 124, 125, 126. tents, see, ante, §§ 78, 79. As to the evidence necessary to As to the admissibility of extrin- • prove a contract to make a will, sic evidence to show whether or see, post, §§ 136, 138, 139. not the maker of a will Intended 23 In re Sandberg's Will, 75 it to be conditional, see, post. Misc. Rep. 38, 134 N. Y. Supp. 869. §§ 110, 111. 112. As to the admissibility of evi^ As to the extent to which parol dence of parol declarations and declarations of a testator may be surrounding circumstances to show admitted to prove or disprove rev- the nature of an instrument offered ocation, see, post, §§124, 125, 126. for probate, see, ante, §§ 51, 52, 53. As to the evidence necessary to As to the admissibility of ex- prove a contract to make a will, trinsic evidence as affecting ques- see, post, §§ 136, 138, 139. tion of revocation, see, ante, § 54. 24 Bynum v. Bynum, 33 N. C. As to the construction of joint 632. 110 COMMBNTAEIES ON THE LAW OF WILLS. § 95. Agreement That the Marriage of One Shall Revoke the Will of the Other Not Eflfectual. The law prescribes the manner in which wills may be revoked. If two single persons execute mutual wills in favor of each other pursuant to an agreement not recited in the wills that they should not be effective if either of the parties should marry, the fact of the marriage of one of the testators would not be a revocation of the will of the unmarried one since the law contains no such provi- sion for revoking wills. The marriage of one would relieve the other from any contractual obligation, if one existed, but would not revoke his will.^* Thus, should two unmarried sisters, under age, execute mutual wills in favor of each other which are undoubtedly made pur- suant to a family arrangement and not intended to be operative in the event of the marriage of either, although one of the sisters marries, the will of the other who dies unmarried and without having revoked the same, must be admitted to probate.^^ § 96. Effect of Marriage and Birth of Issue on a Will Executed Pursuant to a Contract. The rule in practically all jurisdictions is that the will of an unmarried person is revoked by a subsequent mar- riage and the birth of issue. In ordinary cases no com- plications could arise. Where two parties have made wills in favor of each other pursuant to an agreement, the marriage of one could be taken as notice to the other of revocation, should such other be living. But if one had died and the survivor had accepted benefits under the will of the deceased, it would seem to be as great a wrong to allow him to revoke his will by the act of marriage and the birth of issue — in many jurisdictions 25 In re Goldsticker's "Will, 123 26 Hinckley t. Simmons, 4 Ves. App. Div. 474, 108 N. Y. Supp. 489. Jun. 160. JOINT, MUTUAL, OB EECIPROCAL WILLS. Ill marriage alone revokes the will — as to allow a revocation in the ordinary manner. In the latter instance, however, the act is personal ; in the former the law acts as a matter of public policy; but the effect is the same. §97. The Same Subject: Equity Will Not Enforce Unjust Agreements. The law, however, can not prevent a man from revok- ing his will or utterly destroying it by burning or the like, and the law can not make a will for a decedent. It is the contract, however, which, if valid, is binding, and it is the contract which equity enforces irrespective of the existence of a will. If the law, therefore, as a matter of public policy causes the will of an unmarried person to be revoked by his subsequent marriage in order to pro- tect his wife and possible issue, the party aggrieved, as in other cases, must resort to equity for relief, which should be granted or withheld according to the circum- stances. Thus it might be inequitable to grant specific performance against the estate of a decedent who had agreed to will all of his property to another, the promis- sor having subsequently married and the wife having been in ignorance of the agreement. Equity will not enforce a contract where the result would be harsh or oppressive.^^ And since the law prescribes that wills are revoked by marriage or by marriage and the birth of issue, it may be said that all parties to a contract to make a will must have done so with the statute in view. How- ever, all relief should not be denied to the promissee and he should have his right of action for the value of the services rendered or for moneys expended under and pur- suant to the agreement.^* 27 See, post, §§ 135, 137, 138. Slonlger v. Slonlger, 161 111. 270, 28 Owens V. McNally, 113 Cal. 43 N. E. 1111. In the case last 444, 33 L. R. A. 369, 45 Pao. 710; cited it was held that although a 112 COMMENTARIES ON THE LAW OF WILLS. § 98. The Same Subject: Effect of the Acceptance of Benefits. It has been held that if a survivor of two testators who had made reciprocal wills in favor of each other, had received benefits under the will of the other and then subsequently had died without having revoked his will, his will must stand despite the fact of a subsequent mar- riage. For instance, where a husband and wife jointly- executed one testamentary document which provided, in terms, that the property willed was the joint property of both and was to go to the survivor for life and thereafter to designated parties, the husband having accepted bene- fits under the will of his wife and having died without revoking his will, his widow by a subsequent marriage could claim no rights in the property contrary to the pro- visions of the will.^* In a comparatively recent case, however, the ruling was to the contrary, although the circumstances were different. A husband and wife had executed mutual wills in a single instrument. The wife died but her will was not offered for probate. The husband thereafter remarried. Upon his death the joint instrument was offered as his will and rejected, the court holding it had been revoked by his subsequent marriage.^" §99. The Same Subject: Where the Agreement to Make Mutual Wills Appears on the Face of the Instrument. "Where a testamentary document is jointly executed by two parties and shows on its face that the property of both testators is treated together as one and the same, will made prior to marriage and 29 Baker v. Syfritt, 147 Iowa 49, pursuant to a contract was re- 125 N. W. 998. voked by subsequent marriage and so In re Anderson's Estate, 14 was therefore void as a will, yet it Ariz. 502, 131 Pac. 975. See, also, could be treated as an equitable Corker v. Corker, 87 Cal. 643, 25 contract. Pac. 922 ; McAnnulty v. McAnnulty, JOINT, MUTUAL, OR RECIPEOCAL WILiLS, 113 that the dispositions made are to be joint gifts, and that the intention of both is that the joint will should not be- come operative if either thereafter make a different wiU, the revocation of the will as to one of the testators by reason of his subsequent marriage and the birth of issue, especially if that party should die and leave a different will, would be sufficient cause for refusing to admit the instrument to probate as the will of the other, even though such testator should die without having revoked the same. Such matters, however, must appear on the face of the instrument which would show it to be, in effect, a conditional will executed under an arrangement which, having been violated by one, should not bind the other.*^ § 100. The Statute of Frauds as Affecting Oral Agreements to Make Mutual Wills of Real Property: Part Perform- ance. Oral agreements to devise real property are void unless there is such part performance as will take the case out of the statute of frauds. The situation is very similar to that of oral contracts to convey lands which are not affected because of part performance. If two parties verbally agree, each in consideration of the other doing likewise, to make their wills disposing of their property in a specified manner, and one dies leaving a will which complies with the contract and the survivor accepts bene- fits under it, non-compliance with the agreement by the survivor being a fraud, there has been such part perform- ance as will take the case out of the statute of frauds.^^ 120 111. 26, 60 Am. Rep. 552, 11 82 Carmichael v. Carmlchael, 72 N B. 397; Estate of Larsen, 18 Mich. 76, 16 Am. St. Rep. 528, S. D. 335, 5 Ann. Cas. 794. 100 1 L. R. A. 596, 40 N. W. 173; Bird N. W. 738. '^- Pope. 73 Mich. 483, 41 N. W. 31 Peoria Humane Soc. v. Mc- 514; Kofka v. Rosicky, 41 Neb. Murtrie, 229 111. 519. 82 N. E. 319. 328, 43 Am. St. Rep. 685, 25 I Com. on Wills— 8 114 COMMENTAEIES ON THE LAW OE WILLS. §101. The Same Subject: Does the Statute Refer to Owner- ship at Date of Agreement or at Time of Death? A person may agree to will all the real and personal property owned by Mm at the time of his death. When the contract is made he may possess no realty or he may die owning none. The devise can not become effective until the death of the testator and can operate only on the property he then possesses. During his lifetime a testator has the full and free use and enjoyment of his possessions, together with the power of disposition. Therefore if the one first dying owned no real property at his death, it is difficult to see how the statute of frauds could invalidate the agreement.^^ L. R. A. 207, 59 N. W. 788; Best (Tex. Civ.) 166 S. "W. 395. As to V. Gralapp, 69 Neb. 811, 5 Ann. the Statute of Frauds affecting Cas. 491, 96 N. W. 641, 99 N. W. contracts to devise or bequeath 837; Johnson v. Hubbell, 10 N. J. property, see, post, §§150, 151. Eq. 332, 66 Am. Dec. 773; Adams 33 Tumipseed v. Sirrine, 57 S. C. v. Swift, 169 App. Div. 802, 155 559, 76 Am. St. Rep. 580, 35 S. E. N. Y. Supp. 873; Tumipseed v. Sir- 757. rine, 57 S. C. 559, 76 Am. St. Rep, As to the Statute of Frauds af- 580, 35 S. E. 757; League v. Davis, .fecting contracts to will property, 53 Tex. 9; Larrabee v. Porter, see, post, §§ 150, 151. CHAPTER V. CONDITIOISrAL OR CONTINGENT -WILLS. § 102. Definition of a conditional or contingent will. § 103. Matters to be considered when conditional wills are offered for probate. § 104. "Wills are not declared conditional if they can reasonably be construed otherwise. § 105. The making of a will signifies that the testator did not intend to die intestate. § 106. The circumstances which can be considered in construing conditional wills. § 107. The same subject : Effect of failure to limit the contin- gency; the reasonableness thereof. § 108. The same subject : Nature of the bequests as indicating intention. § 109. The intention of the maker must be expressed ; courts can not supply omissions. § 110. Extrinsic evidence not admissible to show whether maker intended will to be conditional. § 111. Effect of the Statute of "Wills regarding the admission of evidence to show intent. § 112. Evidence of parol declarations or conduct of the maker not admissible to show intent. § 113. Courts can not qualify plain and unambiguous language. § 114. "Wills effective at the election of a third person. §115. "Alternative" wills. (115) 116 COMMENTAEIES ON THE LAW OP WILLS. §102. Definition of a Conditional or Contingent Will. A conditional will, sometimes referred to as a con- tingent will, is one which, by its terms, becomes effective only upon the happening or not happening of some con- tingency, which contingency may be a date or period of time, an event, a set of circumstances, or a combination of these. If the contingency does not arise, the will never becomes operative. There is no principle of law which prevents a testator from making a will which will be- come effective only in the event of some contingency. The appointment of an executor may be made condi- tional; the same rule applies to bequests and devises; and there is no reason why a condition may not apply to the entire instrument as well as to a single provision. Whether or not the contingency has arisen is to be ascer- tained when the will is offered for probate,^ § 103. Matters to Be Considered When Conditional Wills Are Offered for Probate. When an instrument is offered for probate, it is the first duty of the Court to ascertain the nature of the document and to determine whether or not it can be declared a will,* If the document is testamentary, the 1 Goods of Porter, L. R. 2 P. & and testament (that is, in case my D. 22; Damon v. Damon, 8 Allen last will, before this wrote in my (Mass.) 192; Ex parte Lindsay, 2 own hand, and witnessed by John Bradf. (N. Y.) 204. Way and others, should be by any 2 In the following cases It was of my relations disputed), as fol- held that the contingencies ex- lows:" etc. — Ingram v. Strong, 2 pressed in the wills in question Phlllim. 294. Sir John Nicholl, In affected the entire instruments deciding the foregoing case, said and, the effectiveness of the wills it was clear that the deceased in- being dependent upon certain con- tended to die testate and that the ditions which did not arise, the clause above named could not be wills were conditional and void: held to be the reason for a new "I make this my last will distribution, but was Inserted as CONDITIOlSrAL OR CONTINGENT WILLS. 117 Court must then find whether it is an absolute and uncon- ditional disposition of the estate of the testator, or whether it can be accepted as a will only on the hap- pening or not happening of a certain event; in other a condition, and that it was only to be called into operation in case the former ■will was disputed. A letter written by a testator to his wife, while on his way from Liver- pool to Ireland, respecting several ' family matters, then proceeded as ■ follows: "I mention these matters 1 thus particularly to serve as a , memorandum for you in case It ] should be the Lord's will to call me hence by any fatal event in the voyage or journey before us, and . for the same reason will add the following of my worldly goods not directed in our marriage settle- ment: viz.," etc. — Goods of Ward, 4 Hagg. 179. "I, Charles De Lanoe, do make and appoint, this my \ast will and testament, in manner following: i. e. Imprimis, In case I should die before I return from the journey I intend, God willing, shortly to undertake for Ireland, my will and desire is. That my house and lands at Farley Hill, and all the furniture and appur- tenances thereto belonging, be all sold after my decease," etc. Then followed in the will certain be- quests which were stated to be paid out of the moneys arising from the aforesaid sale. — Parsons V. Lanoe, 1 Ves. Sen. 189; s. c, Ambl. 557. In the foregoing case Lord Hardwicke held that the legacies depended on the sale being made and that the sale being allowed only on a condition precedent which had failed, the whole instrument must fail. To the same effect see Jacks v. Hen- derson, 1 Desaus. (S. C.) 543. "In case I die before I join my beloved wife," etc. The testator was in the West Indies, separated from his wife, and was going on a voy- age to England. That voyage did not, however, take place. Subse- quently he rejoined his wife and they went to England together. Probate was refused, the court holding that the contingency re- ferred to his joining his wife after the anticipated voyage to England and not to the fact that he re- joined her without taking this voy- age. — Sinclair v. Hone, 6 Ves. Jun. 607. "I being on the eve of embarking for San Francisco, South America, or Mexico, do hereby, in case of my decease dur- ing my absence being fully ascer- tained and proved," etc. Probate was denied, although the testator, after his safe return, several times declared that he intended his will to stand. — Goods of Winn, 2 Sw. & Tr. 147. In this case. Parsons v. Lanoe, 1 Ves. Sen. 189, and Strauss V. Schmidt, 3 Phillim. 209, are re- viewed and distinguished. "This is to certify, I, Robert Roberts, Master Mariner, do leave in pos- 118 COMMENTARIES ON THE LAW OF WILLS. words, whether or not It is a conditional will. When con- tingencies are expressed in a testamentary document pre- sented for probate, the Court must then determine the intention of the testator and find whether the validity of session two bank-books to my ■wife, named Emma Roberts; should anything happen to me on my passage to Wales, or during my stay, I leave my goods," etc. — Roberts v. Roberts, 2 Sw. & Tr. 337. "Being obliged to leave Eng- land to Join my regiment in China, and not having time to make a will, I leave this paper containing my wishes and desires. Should anything unfortunately happen to me while abroad I wish everything that I may be in possession of at that time," etc. — Goods of Porter, L. R. 2 P. & D. 22. In the fore- going case Lord Penzance, in hold- ing the will conditional, after re- ferring to certain cases in which the probability of death had been held to have been expressed only as a reason for the making of the wills, said: "The question then is, whether the paper before me comes within the principle of these cases. I think It does not. If it had stopped at the end of the first sentence, I think it would have come within it. 'Being obliged to leave England to join my regi- ment . . . Should auything un- fortunately happen to me whilst abroad'; but the testator goes on to say, 'I wish everything that I may be in possession of at that time, to be divided,' etc. At what time? His death whilst abroad; and every disposition he speaks of, is to take effect only at the time of his death abroad. It is said that the following words, 'or any- thing appertaining to me there- after,' enlarges the operation of the will. I do not think so. The testator's meaning is, 'everything! I have in my possession at the time of my death abroad,' is to be disposed of In a certain way; : and furthermore, 'anything that may come to me after my death,' that is, any reversionary interest. 'At that time' limits the disposing part of the will to the period of time during which a certain event might happen, namely, his death abroad." — Goods of Porter, supra. "This Is the last will and testa- ment of me, G. T. R., that in case anything should happen to me dur- ing the remainder of the voyage from hence to Sicily and back to London, that I give," etc. — Goods of Robinson, L. R, 2 P. & D. 171. A mariner's will read: "Instruc- tions to be followed if I die at sea or abroad." The testator died while on shore, on a visit with his wife. The court held that as- suming the will had been made at sea, it was clearly conditional, it the heading controlled. — Lindsay V. Lindsay, L. R. 2 P. & D. 459. "I, J. W. D being in sound mind and body, and being about CONDITIONAL OE CONTINGENT WILLS. 119 the will was made dependent upon such conditions, or whether the maker was simply expressing the reasons why he executed the instrument. If, according to the language of the will, a condition is clearly imposed, it to go to Cuba, and knowing the dangers of Toyages, do hereby make this as my last will and tes- tament," etc. Then followed par- ticular dispositions, the first read- ing: "First, If by any casualty or otherwise I should lose my life during this voyage, I give and be- queath to my wife Ann," etc. It was held that the second portion above quoted attached to and qualified the particular bequest. — Damon v. Damon, 8 Allen (Mass.) 192. Hoar, J., in rendering the decision, said: "He gives a cer- tain piece of property to his wife, if he loses his life during the voy- age. There is no gift to her with- out that qualification. Suppose any other condition had been ex- pressed — 'If I die before I reach a certain age,' or 'before a cer- tain house is finished,' or 'if the legatee survives A,' could it be doubted that it would mean the bequest was conditional?" In the foregoing case it was held that the condition attached only to the par- ticular bequest and not to the en- tire Instrument, and that therefore the will should be admitted to pro- bate. Compare Parsons v. Lanoe, 1 Ves. Sen. 189; s. c, Ambl. 557. A testator escaped from a ship- wreck in the Mississippi river and wrote his will, referring to his peril, and said: "If I never get back home, I leave you every- thing," etc. He subsequently re- turned home. It was held that the contingency applied to the whole will. — Maxwell v. Maxwell, 3 Mete. (Ky.) 101. "As I intend starting in a few days to the State of Missouri, and should anything hap. pen that I should not return alive, my wish," etc. The will was held conditional, as it referred to a spe- cial trip and a special t i m e. — Dougherty v. Dougherty, 4 Mete. (Ky.) 25. The will of a soldier read: "If I never return home I want all I have to be my wife's." The testator at the time of making the will was in the army. It was held that his safe return to his home caused the will to be void. — Magee v. McNeil, 41 Miss. 17, 90 Am. Dec. 354. "I this day start for Kentucky; I may never get back. If it should be my misfor- tune, I give all my property," etc. It was held that the visit to Ken- tucky was not named merely as the occasion for making the will or that its supposed risks re- minded him of the propriety of such an act, but that his death prior to his return was a condition upon which the will depended for its efficacy. — ^Robnett v. Ashlock, 49 Mo. 171. A will written by an illiterate person contained this provision: "If I should not get 120 COMMENTAEIES ON THE LAW OF WILLS. must then be determined whether the condition applies to the entire instrument or only to certain bequests or devises. A determination of these points is necessary whenever a testamentary document containing condi- tions is presented for probate back do as I say." The testator contracted an Illness on his trip, returned home, but died shortly afterwards. Probate of the docu- ment was refused. — Morrow's Ap- peal, 116 Pa. St. 440, 2 Am. St. Rep. 616, 9 Atl. 660. "Let all men know hereby, if I get drowned this morning, Mch. 7, 1872, that I be- queath all my property," etc. — . French v. French, 14 W. Va. 459. The following are cases of wills held to be not conditional, the lan- guage used having been deter- mined to have been stated merely as the occasion for making the will. Such wills were admitted to probate although the particular contingencies mentioned did not arise. "In case of accident I sign this my last will." — Bateman v. Pennington, 3 Moore P. C. C. 223. my last will and testament," etc. — Burton v. Collingwood, 4 Hagg. 176. "In the prospect of a long journey, should God not permit me to return to my home, I make this my last will." — Goods of Cawthron, 3 Sw. & Tr. 417. "I request that in the event of my death while serving in this horrid climate, or any accident happening to me," etc. — Goods of Thorne, 4 Sw. & Tr. 36. "On leaving this station for Thargomindah and Melbourne, in case of my death on the way, know all men this is a memo- randum of my last will and testa- ment." — Goods of Mayd, L. R. 6 Prob. Div. 17. "In case of any fatal accident happening to me, being about to travel by railway, I hereby leave," etc. — Goods of Dobson, L. R. 1 P. & D. 88. "I, "To take effect only in event of , being at this date of sound my son Charles dying under the age of twenty-one years and my daughter Sarah dying under that age and unmarried," etc. — Goods of Cooper, Dea. & Sw. 9. "In case of my inability to make a regular codicil to my will, made and pub- lished on the 2d of May, 1820, I desire the following to be taken as a codicil to, and as further part of said will." — Forbes v. Gordon, 3 Phillim. 614. "Lest I should die before the next sun I make this mind . . . but physically weak in health, having, at my own free ■ will and desire, obtained permis- sion ... to cease all duty for a few days, and I wish, during such time, to be removed from Appellina to floating hospital ship Berwick Walls, in order to recruit my health . . . and in event of my death occurring," etc. — Goods of Martin, L. R. 1 P. & D. 380. "If anything happens to us on the way, my will has been accidentally CONDITIONAL OR CONTINGENT WILLS. 121 § 104. Wills Are Not Declared Conditional if They Can Rea- sonably Be Construed Otherwise. If the validity of a will, by terms expressed therein, is made to depend upon the happening or not happening of some certain event and the contingency has not arisen. packed away in a tin box to which I can not get access, as I forget which box it has been put into. However, if we both come to grief, I appoint you my executor; if I only, then in conjunction with Nan." The foregoing was in a letter, good under the Scots law, sent by a Scotchman who was about to sail with his wife from Calcutta to England. The court specially referred to the fact that no period of time was mentioned when the will was to become op- erative. It was held not condi- tional.— Halford V. Halford, (1897) P. 36. "If anything should happen to me while in India that all TOoneys, documents, properties or securities belonging to me or any moneys due to me or owing to me at the time of my death," etc. The court held the last words above quoted referred only to a general disposition of property. — Estate of Vines (1910), P. 147. In the fore- going case the court gave the fol- lowing illustration: "If a man write 'should I die tomorrow, my will is' so and so, his death must occur to make the document op- erative; whereas if he write 'lest I die tomorrow,' it will be opera- tive whether he die or not on the morrow." — Estate of Vines, supra. "Being about to take a long jour- ney and knowing the uncertainty of life, think it advisable to make some disposition of my estate, do make this my last will and testa- ment," etc. — Tarver v. Tarver, 9 Pet. (U. S.) 174, 9 L. Ed. 91. "If any accident should happen to me that I die from my home, my wife, J. A. L., shall have everything that I possess." — Likefield v. Llkefield, 82 Ky. 589, 56 Am. Rep. 908. "Re- alizing the uncertainty of life at all times and the dangers incident to travel, I leave this as a memo- randum of my wishes, should any- thing happen to me during my intended trip to Buffalo and other places." — ^Redhead v. Redhead, 83 Miss. 141, 35 So. 761. An olo- graphic will in the form of a letter referring to sickness of the maker contained the following expres- sions: "If I die," a request "to answer at once," and also the statement "This is private." It was held such expressions did not alter the nature of the paper as the request to answer might have been for the sake of information as to whether the letter had been received and the last expression might well have been a mere re- quest that it was not to be made public until after the death of the sender. — Buffington v. Thomas, 84 Miss. 157. "According to my pres- 122 COMMENTARIES ON THE LAW OF WILLS. the instrument must be denied probate. If, however, the condition applies merely to certain provisions of the will and is of partial application only, the will should be ad- mitted and the question as to the effect of the contingency be left to future construction.* Should there be a rea- sonable doubt as to the effect of the condition named, that is, whether it affects the entire instrument or only certain provisions thereof, the best procedure is to admit ent intention, should anything happen to me before I reach my friends in St. Louis, I wish to make a correct disposition of the Three hundred dollars in the hands of Mr. H. bearing interest for me. Of this I leave," etc. — Ex parte Lindsay, 2 Bradf. (N. Y.) 204. A will contained a single legacy, with this condition: "This gift and bequest being subject to the following condition, viz.: that said M. B. shall produce from the oflacers of the ship in which I shall sail on my next cruise, satisfac- tory evidence of my decease dur- ing the same." The court held that the word "condition" should be construed in relation to the par- ticular subject to which it referred and not to the will generally, and that as the testator did not die during the cruise referred to, no evidence was required of his death while on such cruise. It was held that the condition was not an- nexed to the substance of the gift, but only to a collateral matter, and that the gift was absolute and not conditional, and that such a condition could operate only on the contingency contemplated by the express language of the be- quest. The event contemplated never having occurred, it was held that the gift should not be dis- turbed. — Thompson v. Connor, 3 Bradf. (N. Y.) 366. A will re- ferred to a journey and used the following expressions: "Knowing the uncertainty of 1 i f e," and "should anything befall me while away or should I die, then and in that event," etc. — Forquer's Es- tate, 216 Pa. St. 331, 8 Ann. Cas. 1146, 66 Atl. 92. "Lewinsville, August 19, 1862, Dear Wife— I am going away; I may never return. I leave my property," etc. — Cody v. Conly, 27 Gratt. (Va.) 313. 3 Damon v. Damon, 8 Allen (Mass.) 192; Thompson v. Connor, 3 Bradf. (N. Y.) 366. Compare Parsons v. Lanoe, 1 Ves. Sen. 189; s. c, Ambl. 557, where the condi- tion expressed in the will referred only to a sale of the property of the testator, but as the bequests made were to be paid only out of the proceeds of such sale, the sale being prevented by the condition, the bequest necessarily failed. See, also. Jacks v. Henderson, 1 Desaus. (S. C.) 543. CONDITIONAL OE CONTINGENT WILLS. 123 such a will to probate and thereafter interpret its terms ; otherwise, except after further litigation, such provi- sions of the will could not be construed. But when the conditions are general and the question arises as to the validity of the will as a whole, the matter must be deter- mined when the will is presented for probate, for it is then a question as to whether or not the document should take effect as a last will and testament.'* § 105. The Making of a Will Signifies That the Testator Did Not Intend to Die Intestate. The fact that a testator makes a will implies generally that he did not intend to die intestate, and a will con- taining a condition should not be refused probate unless it clearly appears that the testator intended that it should not take effect except upon the prescribed contingency. A testament will not be decreed to be conditional if it can be reasonably held that the contingency was stated merely as the occasion for the making of the will, no matter if the language used, if strictly construed, be in- accurate for such purpose. Unless the words clearly show that the instrument was merely temporary or to become effective only on the happening or not happening of some contingent event, it will be admitted to probate.' §106. The Circumstances Which Can Be Considered in Con- struing Conditional Wills. A testator may set forth a contingency in his will in language so ambiguous that there is difficulty in deter- mining whether he meant to refer to some possible event 4 Ex parte Lindsay, 2 Bradf. Likefield v. Llkefleld, 82 Ky. 589, (N. Y.) 204. 56 Am. Rep. 908; Damoa v. Da- 5 Goods of Porter, L. R. 2 P. •mon, 8 Allen (Mass.) 192; Ex & D. 22; Eaton v. Brown, 193 U. S. parte Lindsay, 2 Bradf. (N. Y.) 411, 48 L. Ed. 730, 24 Sup. Ct. 489; 204; Thompson v. Connor, 3 Bradf. 124 COMMENTARIES ON THE LAW OF WILLS. as the inducement which caused him to make his will, or whether he intended that his mil should become opera- tive only in the event of the contingency. If the inten- tion is clearly expressed that the will is to become opera- tive only on the happening or not happening of a particular event, the will is conditional and must be so determined. If the effect of the language is that the tes- tator, by reason of certain conditions mentioned, for in- stance, the uncertainty of life in general, was led to make his will, the will is not conditional. In determining the character of the instrument, the language of the entire document, with surrounding circumstances, may be con- sidered. The Court may look to see if the dispositions made by the testator are related in any way to the time or the circumstances of the contingency. If the condition mentioned refers to some contemplated future event when the life of the testator might be in danger, there appears no reason why the contingency should be mentioned unless it was intended to make the will conditional. If, on the other hand, the testator is in imminent danger and mentions the fact in his testament, it might readily be supposed that the condition men- tioned was the inducement for the making of the will.*' §107. The Same Subject: Effect of Failure to Limit the Con- tingency. The Reasonableness Thereof. In determining the effect of a contingency expressed in a will, it should be ascertained whether the condition is confined to a particular time or to a particular event. (N. Y.) 366; Cody v. Conly, 27 ter, containing the following lan- Gratt. (Va.) 313; French v. French, guage, was held to be not condi- 14 W. Va. 459. tional, viz.: "If I remain here 6 A letter, testamentary in effect, taking pahs for some time to from a military officer to his sis- come the chances are in favor of CONDITIONAL OB CONTINGENT WILLS. 125 For instance, if the will does not specify a particular length of time or a particular period when it is to be operative or inoperative, or specifies that it is made con- ditional upon the return from some journey without spec- ifying any particular journey, then it is general in char- acter and is construed as being only the expression of the inducement or reason why the testator made the will.^ And in construing conditions it is proper for the Court to consider whether or not they are reasonable; this consideration, however, is only for the purpose of construing ambiguous language in a will in order to de- termine the reason for its expression by the testator, for if the language is clear and unambiguous and expresses a condition affecting the validity of the entire instrument, the clear words of the document must and do control. § 108. The Same Subject: Nature of the Bequests as Indicat- ing Intention. The nature of the bequests or devises set forth in a will may indicate to an extent the intention of the tes- tator in expressing a condition ; thus if the condition was that the testator and his wife should die at one and the same time and by the same accident, if the maker's inten- tion was that the will should not become operative except in the event of the contingency named, no bequest or devise would be made in favor of his wife, for under the condition named she would not then be living to receive more of us being killed, and as I I ask you for it."— Goods of Spratt may not have another opportunity (1897), P. 28. of saying what I wish to be done 7 Goods of Spratt, (1897) P. 28; with any little money I may pos- Halford v. Halford, (1897) P. 36; sess in case of accident I wish Estate of Vines, (1910) P. 147; to make everything I possess over Bufflngton v. Thomas, 84 Miss. 157, to you. . . . Now keep this till 105 Am. St. Rep. 423, 36 So. 1039. 126 COMMENTAEIES ON THE LAW OP WILLS. it.* Likewise, the likelihood of conditions under ordinary circumstances being attached to gifts made by last will may be considered by the Court in determining the in- tention of the maker. Isolated words may be modified and controlled by the intention of the testator to be gath- ered from the whole instrument.* § 109. The Intention of the Maker Must Be Expressed; Courts Can Not Supply Omissions. No matter how strongly it may be supposed a testator intended to have his will become effective only upon the happening of some event, yet an unexpressed intention can not be enforced. Such an intention must be clearly expressed, for a will should not be declared conditional merely because there is some slight indication that it was so intended. The question to be determined is the in- tention of the testator expressed in the document and all other rules are subordinate to it. It is a well settled rule of construction that if the testator fails to mention some particular event, which, had it occurred to him he undoubtedly would have made provision against, the omission can not be supplied by the Courts, otherwise 8 In Goods of Hugo, L. R. 2 Prob. 9 Eaton v. Brown, 193 TJ. S. 411, Div. 73, the joint will of a husband 48 L. Ed. 730, 24 Sup. Ct. 489; and wife contained this provision: Likefield v. Likefield, 82 Ky. 589, "This is the last will and testa- 56 Am. Rep. 908. meat of us ... in case we should "In the construction of wills, if be called out of this world at one the language of the testator is and the same time and by one such that It may be construed In and the same accident," etc. The two different senses, one of which will also had a clause revoking would render the disposition made former wills. The contingency not of the property illegal and void, arising, the will was held condl- and the other would render it tional, therefore it was held in- valid, the court should give that effective and did not revoke the construction to his language which former wills. will make the disposition of the CONDITIONAL OK CONTINGENT WILLS. 127 ttey would not be construing wills, but rather would be making them.^" §110. Extrinsic Evidence Not Admissible to Show Whether Maker Intended Will to Be Conditional. In determining the question as to whether the con- tingency mentioned in a will was the cause which led the testator to make it or whether he intended it as a con- dition precedent to the will becoming effective, grave danger would arise if the Court went beyond the literal and grammatical meaning of the words expressed and substituted its own imagination for what it might be- lieve the testator would have said had his attention been called to certain f acts.^^ Extrinsic evidence should not be allowed to explain the intention of the testator. There is an exception to this rule in a case where the am- biguity arises because of extrinsic circumstances, in property effectual." — ^Butler v. But- ler, 3 Barb. Cli. (N. Y.) 304; Griffin V. Ford, 1 Bosw. 123. 10 Illinois Land & Loan Co. v. Bonner, 75 ni. 315; GIbsgn v. Sey- mour, 102 Ind. 485, 52 Am. Rep. 688, 2 N. E. 305; Augustus v. Sea- bolt, 3 Mete. (Ky.) 155; Rupp v. Eberly, 79 Pa. St. 141; Sponsler's Appeal, 107 Pa. 95; Morrow's Ap- peal, 116 Pa. St. 440, 2 Am. St. Rep. 616, 9 Atl. 660; Green's Es- tate, 140 Pa. 253, 21 Atl. 317; McCall V. McCall, 161 Pa. 412, 29 Atl. 63; Stevens's Estate, 164 Pa. 209, 31 AU. 243; Yearnshaw's Ap- peal, 25 Wis. 21. 11 Eaton V. Brown, 193 U. S. 411, 48 L. Ed. 730, 24 Sup. Ct. 489. As to the admissibility of evi- dence of parol declarations and surroimding circumstances to show the nature of an instrument offered for probate, see, ante, §§ 51, 52, 53. As to the admissibility of ex- trinsic evidence as affecting the question of revocation, see, ante, §54. As to the construction of joint wills being controlled by their contents, see, ante, §§ 78, 79. As to the evidence necessary to establish agreements to execute mutual or reciprocal wills, see, ante, §§ 92, 93. As to the extent to which parol declarations of a testator may be admitted to prove or disprove rev- ocation, see, post, §§ 124, 125, 126. As to the evidence necessary to prove a contract to make a will, see, post, §§ 136, 138, 139. 128 COMMENTARIES ON THE LAW OP WILLS. which case parol evidence is admitted from necessity. If the language of the will should grant a bequest to a person or an institution and more than one person or in- stitution answers to the description, or where it is not clear as to the subject matter to which the language of the will was intended to apply, evidence of extrinsic circumstances may be properly admitted in order that the Court may determine the intention of the testator.^^ § 111. Effect of the Statute of Wills Regarding the Admission of Evidence to Show Intent. Prior to the Statute of Wills, 1 Victoria, ch. 26 (1837), which abolished the distinction between wiUs of per- sonalty and wills of realty, parol evidence was admitted to show whether a testator intended a condition expressed in a will bequeathing personal property to prevent it from becoming operative except in the event of the con- tingency named, and also for the purpose of showing a parol re-execution and ratification of the instrument. Thus declarations of a testator made subsequent to the execution of the will were admitted to prove the char- acter of a will of personal property. For instance, if the condition expressed in the will was "if I should die on my journey from England to America," evidence was admitted of oral declarations made by the testator after his safe return from such a journey to the effect that the will previously made was still his will and that he wished it to stand. Evidence was also formerly admitted to the effect that the testator had carefully retained the custody 12 Fourquer's Estate, 216 Pa. St. teneficlary in anticipation of his 331, 8 Ann. Cas. 1146, 66 Atl. 92. trip was received in evidence In Kellelier v. Keman, 60 Md. 440, for the purpose of determining proof regarding the testator's pur- whether that condition of mind pose and efforts to provide for-his existed which the law regards as CONDITIONAL OR CONTINGENT WILLS. 129 of the will long after the contingency therein expressed had been impossible of fulfillment. The idea at that time was that a conditional will of personal property could be converted into an absolute will by a subsequent act of ratification or re-execution.^* Wills of real property, however, were effected by the Statute of J'rauds, which required a writing. The principle was stated in the early case of Parsons v. Lanoe, 1 Ves. Sen. 189; s. c. Ambl. 557, wherein Lord Plardwicke said: "The penning of the will then being so (conditional), collateral or parol proof, can not be taken into consideration, which Avould be dangerous, and what the Court, since the Statute of Frauds, is not warranted to do ; for nothing will set it up but some act done by him after that event to republish the will or defeat the conditions." § 112. Evidence of Parol Declarations or Conduct of the Maker Not Admissible to Show Intent. ' Since the Statute of Wills parol e^ddence of continued recognition is not admissible to convert a conditional will into an absolute will so as to pass either real or per- sonal property. A will is the lawful intent of its maker ; he can not delegate to another the right to make his testamentary, in a case where It the nature of an instrument offered could not be said that the instru- for probate, see, ante, §§ 51, 52, 53. ment was a deed or a will. As to the admissibility of ex- 13 Ingram v. Strong, 2 Phillim. trinsio evidence as affecting the 294 ; Strauss v. Schmidt, 3 Phillim. question of revocation, see, ante, 209 ; Forbes v. Gordon, 3 Phil- § 54. lim. 614; Burton v. CoUingwood, 4 As to the construction of joint Hagg. 176; Goods of Winn, 2 Sw. wills being controlled by their con- & Tr. 147; Goods of Ward, 4 Hagg. tents, see, ante, §§ 78, 79. 179 ; Allan v. Vanmeter's Devisees, As to the evidence necessary to 1 Mete. (Ky.) 264. establish agreements to execute As to the admissibility of evi- mutual or reciprocal wills, see, dence of parol declarations and ante, §§ 92, 93. surrounding circumstances to show As to the extent to which parol I Com. on Wills— 9 130 COMMENTABIES ON THE LAW OF WILLS. will for him nor can he leave to another the power to revoke his will after his death. The Statute of "Wills in England and the statutes of the various states prescribe the formalities necessary to make a will and also pre- scribe the manner in which it may be revoked. The rule now is well settled that parol declarations of the testator can not be admitted to control the construction of a will except when the terms used in the "will apply indiffer- ently and without ambiguity to each of several different subjects or persons, in which case such evidence may be received for the purpose only of determining which of the persons or subjects so described was intended by the testator." Nor can collateral proof, such as retaining custody of a wiU, be taken into consideration in deter- mining whether a will is conditional or not. Proof of re- execution or republication of the will would be admissible if performed and proved as required by statute, being the same as the original execution of a will, but no will should be supported by parol proof as against the Stat- ute of Frauds and the Statute of Wills.^^ declarations of a testator may be trinsic evidence as aflEecting the admitted to prove or disprove rev- question of revocation, see, ante, ocation, see, post, §§ 124, 125, 126. § 54. As to the evidence necessary to As to the construction of joint prove a contract to make a will, wills being controlled by their con- see, post, §§ 136, 138, 139. tents, see, ante, §§ 78, 79. 14 Wooton V. Redd's Bxr., 12 As to the evidence necessary to Gratt. (Va.) 196; Boy Ian v. establish agreements to execute Meeker, 28 N. J. L. 274; Skipwith mutual or reciprocal wills, see, V. Cabell's Exr., 19 Gratt. (Va.) ante, §§ 92, 93. 758 ; Stevens v. Vancleve, 4 Wash. As to the extent to which parol C. C. 262, Fed. Gas. No. 13412. declarations of a testator may be As to the admissibility of evi- admitted to prove or disprove rev- dence of parol declarations and ocation, see, post, §§ 124, 125, 126. surrounding circumstances to show As to the evidence necessary to the nature ofan Instrument offered prove a contract to make a will, for probate, see, ante, §§ 51, 52, 53. see, post, §§ 136, 138, 139. As to the admissibility of ex- 1 5 Goods of Winn, 2 Sw. & Tr. CONDITIONAL OR CONTINGENT WIUjS. 131 §113. Courts Can Not Qualify Plaiu and Unambiguous Lan- guage. If the language of a will is plain and its meaning is ob- vious, the Court has no right to qualify or control such language in any way by conjecture or doubt arising from extraneous facts. If the testament is contingent in form, although the testator through inadvertence failed to ex- press his intention as he undoubtedly would have done had his attention been called to the matter, it must be so declared, for the Court can no more make a will in part for a deceased person than it can make his whole will. In a proper case, evidence of circumstances surrounding the testator at the time he made his wiU may be admitted for the purpose of putting the Court as nearly as pos- 147; Roberta v. Roberts, 2 Sw. & Tr. 337; In re Robinson, L. R. 2 P. & D. 171; Maxwell v. Maxwell, 3 Mete. (Ky.) 101; Dougherty v. Dougierty, 4 Mete. (Ky.) 25; Ma- gee V. McNeil, 41 Miss. 17, 90 Am. Deo. 354; Sewell v. Slingluff, 57 Md. 537; Robnett v. Ashlock, 49 Mo. 171; Ex parte Lindsay, 2 Bradf. (N. T.) 204; Wooton v. Redd's Exr., 12 Gratt. (Va.) 196. See, also, French v. French, 14 W. Va. 460. In Sewell t. Slingluff, 57 Md. 537, the court said: "To allow parol declarations of a testator, either made before or after the execution of the will, to render it inoperative at some future time and in the event of some future contingency, would be to allow a parol revocation of it." In this case parol evidence was not ad- mitted to prove that the will, valid on its face and without conditions, was in fact executed only to have effect in the event the testatrix died without children. An attempt was made to prove the will had been deposited in escrow. The court held that in this respect wills differed from deeds, con- tracts, etc., which required the consent of two persons, and one person could withhold his consent. Wills, however, required only one person and no delivery was neces- sary. The testator could change his will at his pleasure. It would be idle to make an escrow of a will and would allow an unprin- cipled custodian to make or un- make a will by parol. If, however, there was a lack of animus tes- tandi, such as where an instrument in the form of a will was drawn up as a joke, parol evidence may be admitted to prove such fact. 132 COMMENTARIES ON THE LAW OF WILLS. sible in the place of the testator at the time the will was executed, but such evidence can not be allowed for the purpose of effecting the construction of a will where the language is clear and unambiguous. In determining the intention of a testator as written in his will, the Court should not be governed or even aided by his subsequent declarations. Such a procedure would be dangerous, as there might be injected into a will an intention which the testator never had ; it would be a departure from the strictness of the rule which requires all wills to be in writing; and the meaning of the language of the will might thus be made to depend, in some degree, not on the intention of the testator at the time the will was exe- cuted, but on what he had afterwards said about it under circumstances in which no testamentary import could be predicated on his words.^* § 114. Wills Effective at the Election of a Third Person. In a modern English case it was held that the object of a testator who sought to make a codicil to his will opera- tive or not according to the determination of his wife after his death, was not illegal. 1h.e codicil concluded with this provision : "I give my wife the option of adding this codicil to my will or not, as she may think proper or necessary." Lord Penzance, in rendering the opinion. See Lister v. Smith, 3 Sw. & Tr. Md. 537; Ex parte Lindsay, 2 282; Nichols v. Nichols, 2 Phillim. Bradf. (N. Y.) 204; Rupp v. Bberly, 180. 79 Pa, St. 141; Sponsler's Appeal, 16 Goods of Winn, 2 Sw. & Tr. 107 Pa. 95; Morrow's Appeal, 116 147; Roberts v. Roberts, 2 Sw. & Pa. St. 440, 2 Am. St. Rep. 616, Tr. 337; Illinois Land & Loan Co. 9 Atl. 660; Green's Estate, 140 Pa. V. Bonner, 75 111. 315; Maxwell v. 253, 21 Atl. 317; McGall v. McCall, Maxwell, 3 Mete. (Ky.) 101; 161 Pa. 412, 29 Atl. 63; Stevens's Dougherty v. Dougherty, 4 Mete. Estate, 164 Pa. 209, 30 Atl. 243; (Ky.) 25; Sewell v. Slingluff, 57 Yearnshaw's Appeal, 25 Wis. 21. CONDITIONAL OK CONTINGENT WILLS. 133 said: "It is true that the testator can not confide to another the right to make a will for him, and it is equally true that he can not leave to another the power to revoke Ms will after his death, because the statute says that wills shall be revoked only in the manner prescribed by it, and if the will be destroyed by some person other than the testator, it must be destroyed in the presence of the testator, and by his direction, but there is nothing in the statute to prevent a man from saying that the question whether a paper shall be operative or otherwise shall depend upon an event to happen after his death." In this case the wife exercised her option by rejecting the codicil, and it was denied probate.^'' The result, there- fore, may be said to have been correct. A will is the expression by the testator of his intentions; it can not be made for him by any other person. If the maker of the codicil did not himself intend it to be his testamentary act, there was a lack of animus testandi, and the instru- ment should have been rejected. If, however, a testator intends a duly executed document as his last will, he can not grant the authority to another to revoke it after his death. Where, therefore, a testamentary instrument expresses in terms on its face that it is to become opera- tive or not at the election of a third person after the tes- tator's demise, it is in effect an attempt to empower such third person to either make or revoke the will. Although the law permits a will to be so drawn that it may become effective only on the happening of some contingent event subsequent to the death of the maker, yet no such condi- tion could be declared valid if it were contrary to good morals or public policy. Wills are statutory; they can be made only in the manner prescribed by statute. The 17 Goods of Smith, L. E. 1 P. & D. 717. 134 COMMENTAKIES ON THE LAW OF WILLS. condition in the codicil before mentioned is contrary to the law of wills. § 115. "Alternative" Wills. The designation "alternative" has been used in con- nection with more than one testamentary document of the same maker, either of which was to become operative in the event of a stated contingency. Thus, a testator executed two wills, then subsequently by codicil he pro- vided one will should become effective if he died before a certain date, otherwise the other.^® Reports of such in- stances of so-called alternative wills are extremely rare ; there is, however, no legal objection to them, but care should be exercised in identifying the different instru- ments. IS In re Hamilton's Estate, 74Pa. St. 69, CHAPTER VI. DUPLICATE WILLS. § 116. Definition of duplicate wills. § 117. Inconsistent wills executed at the same time : Construed together, if possible. § 118. One copy only admitted to probate, but both should be produced. § 119. Revocation is presumed when a copy known to have been in the testator's possession can not be found after his death. § 120. Revocation of one duplicate causes presumption of intent to revoke both. § 121. No revocation except the intent exists. § 122. The facts may show a lack of intention to revoke. § 123. The presumption of revocation may be repelled by evi- dence : Burden of proof. § 124. The extent to which parol declarations may be admitted to prove or disprove revocation. § 125. The same subject : As showing lack of intent to revoke. § 126. The same subject: Held inadmissible. § 116. Definition of Duplicate Wills. Duplicate wills, so-called, in fact is a single will exe- cuted in duplicate, each instrument being in the same language and being subscribed and published before the same witnesses and at the same time. Each duplicate is the will of the testator and the fact that one was exe- cuted a few moments subsequent to the other is not a can- (135) 136 COMMENTAEIES ON THE LAW OF WILLS. cellation of the former.^ The reason for such procedure is merely a matter of precaution to insure against dying intestate in the event that a single will might be lost or destroyed by accident. Duplicate wills and the reason therefor were recognized in the Institutes of Justinian and in the Pandects.^ § 117. Inconsistent Wills Executed at the Same Time : Con- strued Together, if Possible. Two testamentary documents executed according to all required formalities at the same time and before the 'same witnesses, are taken together as the mil of the testator. If the provisions of such instruments are differ- ent, one containing devises or legacies not contained in the other, both must be admitted to probate and they are read and construed together.^ It may be that the writ- ings are so inconsistent with each other that they both can not stand, in which case the will first executed, if it can be identified as the first vdW, would be revoked by the execution of the second. If, however, they can not be distinguished as to the time of execution and are so inconsistent that they can not be construed together, pro- bate of either seems impossible. But the courts, to pre- 1 Hubbard v. Alexander, L. R. 3 Forman's Will, 54 Barb. (N. T.) Ch. Div. 738; Doe d. Strickland v. 274; Grossman v. Grossman, 95 Strickland, 8 Com. Bench 724; N. Y. 145; O'Neall v. Farr (Farr v. Burtenshaw V. Gilbert, 1 Cowp. 49; O'Neall), 1 Rich. (S. C.) 80. Pemberton v. Pemberton, 13 Yes. 2 Inst. Just., lib. 2, tit. 10, §13; Jun. 291; Rickards v. Mumford, 2 Domat, pt. 2, lib. 3, tit. 1, § 1, art. Phillim. 23 ; Colvin v. Fraser, 2 17, and § 7, art. 25. Hagg. 260; Roberts v. Round, 3 Townsend v. Moore, (1905) P. 3 Hagg. 548; Onions v. Tyrer, 1 66; Matter of Forman's Will, 54 P. Wms. 343; Odenwaelder v. Barb. (N. Y.) 274; Grossman v. Schorr, 8 Mo. App. 458; Matter of Grossman, 95 N. Y. 145. DUPLICATE WILLS. 137 vent intestacy, will admit both documents if, on any rea- sonable construction, they can both stand.* § 118. One Copy Only Admitted to Probate, but Both Should Be Produced. Where two wills have been executed at the same time and each is an exact duplicate of the other, either can be produced and admitted to probate. Contracts, leases, and the like are commonly executed in duplicate, each party retaining a copy and, each being alike, either party can go into court and produce his duplicate without prov- ing or requiring the production of the other copy. In the case of duplicate wills it has been said that there is no more reason or authority for requiring both to be offered than there would be in the case of any agreement where two or more copies, exactly alike, had been executed. This, of course, presumes that the outstanding copy is identical with the one offered, for if a contest is made on the ground that there is an outstanding mil not a duplicate of the one presented for probate, the court should demand the production of such other mil in order that it might be compared.^ But, however, the court in all cases must be satisfied that the instrument offered for probate is the last will and testament of the deceased, and it can not stand as such if there had been a revoca- 4 Townsend v. Moore, (1905) P. in the afternoon of the same day 66. See, also. Freeman v. Free- he executed another will which man, 5 De Gex, M. & G. 704; contained a clause revoking for- Lemage v. Gooddban, L. R. 1 P. & mer wills, it was held the last in- D. 57; In re De La Saussaye, L. R. strument prevailed as the last 3 P. & D. 42. wish of the testator. — Head v. Where a testator made his will, Nixon, 22 Ida. 765, 128 Pac. 557. then the next day, shortly before 5 Hubbard v. Alexander, L. R. 3 noon, executed a codicil to such Ch. Div. 738; Doe d. Strickland v. will, then about one-twenty o'clock Strickland, 8 Com. Bench 724; 138 COMMENTAEIES ON THE LAW OF WILLS. tion. There is no need of probating two identical docu- ments, and it early developed that one of the duplicates was called the "authentic" will and it only was pro- bated. But the due revocation of one of the duplicates causes the presumption to arise that both were thereby revoked. The revocation may have been accomplished by the destruction of the copy in the testator's possession, the other being in the custody of some third person. And although only one copy need be accepted for probate, yet both copies should be produced in court and if one is missing, the reason therefor should be explained since the fact of its non-existence, in the absence of evidence to the contrary, gives rise to the presumption that the copy presented had been revoked.® § 119. Revocation Is Presumed When a Copy Known to Have Been in the Testator's Possession Can Not Be Found * After His Death. It is well settled that if a decedent during his lifetime was known to have had his will in his possession and after his death it can not be found, it is presumed that Burtenshaw v. Gilbert, 1 Cowp. different times and before differ- 49 ; Pemberton v. Pemberton, 13 ent witnesses, were held to be one Ves. Jun. 291; Rickards v. Mum- instrument, and the bequests not ford, 2 Philllm. 23; Colvin v. cumulative. In this case the codi- Fraser, 2 Hagg. 266; Roberts v, ells were attached to the two cop- Round, 3 Hagg. 548; Onions v. les of a duplicate will, one of Tyrer, 1 P. Wms. 343; Oden- which had been retained by the waelder v. Schorr, 8 Mo. App. 458 ; testator, the other having been Matter of Porman's Will, 54 Barb, deposited with his banker. (N. Y.) 274; Grossman v. Cross- e Killican v. Lord Parker, 1 Lee man, 95 N. Y. 145; O'Neall v. Farr 662; Boughey v. Moreton, 2 Lee (Farr v. O'Neall), 1 Rich. (S. C.) 532; Grossman v. Grossman, 95 80. N. Y. 145; Roche v. Nason, 185 In Hubbard v. Alexander, L. R. 3 N. Y. 128, 77 N. E. 1007; In re Ch. Div. 738, two codicils, iden- Schofield's Will, 129 N. Y. Supp. tical in terms, but executed at 190. DXJPLICATE WILLS. 139 the will was destroyed by the testator with the intention to revoke it.'' It would be a criminal act for a third per- son to destroy the will of another without the knowledge or consent of the testator or to wrongfully purloin or secrete the same; and the law does not presume that a crime has been committed.^ The same principle is appli- cable to wills executed in duplicate where the testator deposits one copy with his attorney or some other party and keeps the other copy in his own possession. If the copy known to have been in the custody of the testator prior to his death can not be found after his demise, the first presumption is that he destroyed it with the intent to revoke it, and, secondly, that he intended thereby to re- voke the duplicate copy in the possession of another.® § 120. Revocation of One Duplicate Causes Presumption of In- tent to Revoke Both. Where a will has been executed in duplicate, it is gen- erally the custom that, for safe keeping, one copy is left with the attorney who drew the documents or with some 7 Rickards v. Mumford, 2 Phil- cited the court said in effect that lim. 23; Loxley v. Jackson, 3 the testator might have been of Phillim. 126; In re Wear's Will, the opinion that the destruction of 131 App. Mv. 875, 116 N. Y. Supp. the duplicate in his possession 304; In re Schofield's Will, 129 was sufficient and that it was N. Y. Supp. 190; Knapp v. Knapp, unnecessary to cancel the copy 10 N. Y. 276; Collyer v. CoUyer, not in his custody; therefore no 110 N. Y. 481, 6 Am. St Rep. 405, presumption should be drawn from 18 N. E. 110; In re Cunnion, 201 his passive acts. N. Y. 123, Ann. Cas. 1912A, 834, In Webster v. Gowland, Prerog. 94 N. E. 648. Mich. Term, 1804, cited in Colvin 8 Richards v. Mumford, 2 Phil- v. Eraser, 2 Hagg. Ecc. 266, at lim. 23; Loxley v. Jackson, 3 page 330, Sir William Wynn said : Phillim. 126. "It is an admitted rule that the 9 Colvin v. Eraser, 2 Hagg. Ecc. cancellation of a part, in the tes- 266; In re Schofield's Will, 129 tator's possession, would be a can- N. Y. Supp. 190. In the case last cellation of a duplicate In the 140 COMMENTARIES ON THE LAW OF WILLS. third J)erson, the testator retaining custody of the other. It may happen, however, that the maker of the will re- tains possession of both copies. The question of revo- cation depends in a large measure upon the facts and circumstances surrounding the particular case as having a bearing upon the question of intention to revoke, since there is no revocation if it can be legally shown that there was no such intention. Revocation of a will may be accomplished by the exe- cution of another will or codicil which revokes it, or by destroying the will, or the like. Certain presumptions of law attend the mutilation or destruction by the tes- tator of one copy of a duplicate will which he has re- tained in his possession, the other having been deposited with some third peron. Each duplicate being the will of the maker, the destruction by him of the copy of which he has retained the custody, causes the presumption to arise that he thereby intended to revoke both copies, i" This presumption still holds, although in a weaker degree, hands of another person." In the codicil, the wiU not being In the latter case, commenting on the possession of the testator, see Ma- foregoing, the court said: "The lone's Admr. v. Hobbs, 1 Rob. reason of this rule is obvious; for (Va.) 346, 385, 39 Am. Dec. 263. why should a person destroy or lo "Welsh v. Gowland, Prerog. cancel the duplicate of his will, if Mich. Term, 1804; Onions v. Tyrer, he meant the other part to oper- 1 P. Wms. 343; s. c, 2 Vern. 742; ate? It may, indeed, be shown Doe d. Strickland v. Strickland, 8 that It was done diverso intuitu. Com. Bench 724; Limbrey v. Ma- or by accident, or while of un- son and Hyde, 2 Comyns 451; Bur- sound mind, or for the sake of tenshaw v. Gilbert, 1 Cowp. 49; peace, and to deceive and impose Richards v. Mumford, 2 Phillim. upon the persons who were im- 23; Colvin v. Fraser, 2 Hagg. 266; portuning him; but, prima facie, Pemberton v. Pemberton, 13 Ves. the cancellation or destruction of Jun. 291; Managle v. Parker, 75 the part in possession infers the N. H. 139, Ann. Cas. 1912A, 269, revocation of the duplicate." As 24 L. R. A. (N. S.) 180, 71 Atl. 637; to the effect of destroying a In re Schofield's Will, 129 N. Y. DUPLICATE WILLS. 141 where a testator retains possession of both copies and destroys but one of them. Having had the power to do so, the failure to destroy both copies would indicate either that the testator intended the remaining copy to stand as his will or that, having had the intention of revocation and having partly consummated it, he had abandoned it by preserving the other duplicate intact. And if, having both duplicates in his possession, the testator alters but a single copy and then destroys the one so altered, the presumption of revocation, if it can be said to exist at all, is very weak.^^ § 121. No Revocation Except the Intent Exists. An intent to revoke must exist, and the act of mutila- tion or partial destruction by a testator of two copies of a duplicate will in his possession is not a total or partial revocation in those cases where the facts show the lack Supp. 190; Betts v. Jackson, 6 Subsequently he had the same so- Wend. (N. Y.) 173; Grossman v. licitor draw another codicil as a Grossman, 95 N. Y. 145; Roche substitute for the former and upon V. Nason, 185 N. Y. 128, 77 N. E. executing It in the solicitor's 1007; O'Neall v. Farr (Farr v. ofBce he destroyed the duplicate O'Neall), 1 Rich. (S. C.) 80. See, which he had left with him. After also, Seymour's Gase, cited in 1 P. the testator's death the other dup- Wms. at p. 346; s. c, 2 Vem. 742; licate of the former codicil was Boughey v. Moreton, 3 Hagg. Ecc. found among his effects enclosed 191; s. c, 2 Lee Ecc. 532; Hub- with his will In the envelope orig- bard v. Alexander, 3 Ch. Div. 738. inally belonging to said paper. It 11 Pemberton v. Pemberton, 13 was held that there had been a Ves. Jun. 291; Snider v. Burks, 84 revocation of both copies. Ala. 53, 4 So. 225. See, also, Doe In Burtenshaw v. Gilbert, 1 d. Strickland v. Strickland, 8 Gom. Cowp. 49, Lord Mansfield said that Bench 724. cancellation requires an intent to In Goods of Halns, 5 Notes of revoke or there is no revocation. Gas. 621, the testator executed in In that case the testator executed duplicate a codicil to his will, one his will in duplicate, later he made copy being left with his solicitor, another will revoking all former the testator retaining the other, wills, at the same time deliber- 142 COMMENTABIES ON THE LAW OF WILLS. of intent. Thus, where a testatrix executed her will in duplicate and left one copy with her solicitor, which she later took into her possession, and at her death both duplicates were in one envelope, indorsed in her hand- writing, "My will, dated the 11th of April, 1814," and the word "mine" written by her in pencil on one will, the duplicate of which had been mutilated by cutting out the names of several devisees, Sir John NichoU held that the mutilation was neither a total nor a partial revocation, for it shows at the most that the testatrix was prepared to change her will, but regarding which she either had not finally made up her mind or had abandoned such inten- tion, and the preservation of the other copy showed a lack of intention to revoke.'^- § 122. The Facts May Show a Lack of Intention to Revoke. The circumstances surrounding the case affect the ques- tion of revocation. Thus a testator who has made his will in duplicate, retaining possession of but one copy, may greatly alter his own duplicate and begin to write a new will which, however, he does not finish, nor does he seek to have the other copy returned to him from the pos- session of its custodian. Such facts would not show a revocation. An imperfect sketch of an intended will which was never completed, is neither a wiU nor a revocation of a former testamentary disposition. It shows that the party did not intend to die intestate and if the ately canceling a copy of the cate •will. It was held that the duplicate will which he had In his cancellation of the second will did possession, the other not being in not revive the former will which his possession. Subsequently he had been revoked, canceled his last will. After his 12 Roberts v. Round, 3 Hagg. death the last will was found 548. See, also. Goods of Eeles, 2 among his effects together with Sw. & Tr. 600. the uncanceled copy of his dupli- DUPLICATE WILLS. 143 incomplete sketch could not be offered for probate as bis will, the former must stand.'^* §123. The Presumption of Revocation May Be Repelled hj Evidence: Burden of Proof. The presumption of law that the destruction of one duplicate revokes the other may be repelled by evidence,^* but the burden of proof is upon the party who seeks to overcome it. The force of the presumption and the weight of the burden of proof will differ according to circum- stances. If one duplicate of the testator's will was actu- ally destroyed by himself, or a copy known to have been in his possession during his lifetime can not be pro- duced, the other copy can not be admitted to probate unless the court is judicially convinced that the testator never intended to revoke his will or that it was in exist- ence at the time of his death, but thereafter lost. The lack of intent to revoke may be established by showing that the destruction of the instrument was through an accident, that it was destroyed by the testator while of unsound mind, that it was an attempt on his part to deceive others who were seeking to have him change his 1 will, or that it was fraudulently destroyed by some third person. In the last instance the proof would have to be much stronger than in the others, since the presumption of innocence prevails, and if fraud is charged, it must be clearly proven.^^ I 13 Llmbrey v. Mason and Hyde, 15 Colvin v. Fraser, 2 Hagg. Ecc. 2 Comyns 451; Burtenshaw v. Gil- 226; Boughey v. Moreton, 3 Hagg. bert, 1 Cowp. 49; Goodright d. Ecc. 191, n.; Managle v. Parker, Glazier v. Glazier, 4 Burr. 2512, 75 N. H. 139, Ann. Cas. 1912A, 269, 2515. 24 L. R. A. (N. S.) 180. 71 Atl. 637, 14 Rickards T. Mumford, 2 Phil- lim. 23. 144 COMMENTARIES ON THE LAW OF WILLS. § 124. The Extent to Which Parol Declarations May Be Ad- mitted to Prove or Disprove Revocation. It is an unsettled question as to the admission of parol declarations by a testator to either prove that he had made a will or prove the fact of its revocation or of its continued existence. Declarations which are made at the time of the execution or the revocation of a will are, of course, admissible as part of the res gestcB. For instance, if the testator while destroying certain papers in the pres- ence of others should unintentionally tear his will into two parts and then and there declare that it had been a mistake and should paste them together again, evidence of his declarations and of his actions would be admissi- ble. But where the declarations of the testator do not accompany any act which the law prescribes for the revoking of wills, it is doubtful if evidence of the same can be admitted.^® § 125. The Same Subject: As Showing Lack of Intent to Re- voke. An interesting case arose in New Hampshire. One will was drawn up, but before it was signed and witnessed one line was crossed out; afterward a second will, iden- 16 Throckmorton v. Holt, 180 269; Marx v. McGlynn, 88 N. T. TJ. S. 552, 45 L. Ed. 663, 21 Sup. 357; Sanford v. Ellithorp, 95 N. Y. Ct. 474; Dan v. Brown, 4 Cow. 48; Matter of Kennedy, 167 N. Y. (N. Y.) 483, 15 Am. Dec. 395; Jack- 163, 60 N. B. 442. But see, contra: son V. Betts, 6 Cow. (N. Y.) 377; Managle v. Parker, 75 N. H. 139, Grant v. Grant, 1 Sandf. Ch. Ann. Cas. 1912A, 269, 24 L. R. A. (N. Y.) 483, 15 Am. Dec. 395; Jack- (N. S.) 180, 71 Atl. 637. fen, 2 Johns. (N. Y.) 31, 3 Am. As to the admissibility of evl- Deo. 390; Voorhls v. Voorhis, 50 dence of parol declarations and Barb. (N. Y.) 119 ; Waterman v. surrounding circumstances to show Whitney, 11 N. Y. 157, 62 Am. Dec. the nature of an Instrument offered 71; Eighmy v. People, 79 N. Y. for probate, see, ante, §§ 51, 52, 53. 646; Horn v. Pullman, 72 N. Y. As to the admissibility of ex- DUPLICATE WILLS. 145 tical with the first except for the omission of the erasure, was executed before the same witnesses. The testatrix gave the first draft to one of the witnesses to keep "in case anything happened," she retaining the second draft. About two years subsequent the testatrix destroyed the will she had in her possession and died some five years later. Testimony was admitted in the probate court of parol declarations of the testatrix to the effect that she had destroyed the will in her possession for the sake of peace because of the importunities of others, and her lan- guage showed in effect that she thought the other draft would stand as her will. On appeal this evidence was held proper on the principle that evidence of oral declara- tions is admissible to show lack of intent.^'^ In this trinsic evidence as affecting the question of revocation, see, ante, §54. As to the construction of joint ■wills being controlled by their con- tents, see, ante, §§ 78, 79. As to the evidence necessary to establish agreements to execute mutual or reciprocal wills, see, ante, §§ 92, 93. As to the admissibility of ex- trinsic evidence to show whether or not the maker of a will intended it to be conditional, see, ante, §§ 110, 111, 112. As to the evidence necessary to prove a contract to make a will, see, post, §§ 136, 138, 139. 17 Managle v. Parker, 75 N. H. 139, Ann. Cas. 1912A, 269, 24 L. R. A. (N. S.) 180, 71 Atl. 637. The case just cited relied on Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322, where parol dec- I Com. on Wills— 10 larations made after the cancella- tion of the will were allowed for the purpose of showing whether or not the testator intended to revive a former will which had not been destroyed. See, also. Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393. As to the admissibility of evi- dence of parol declarations and surrounding circumstances to show the nature of an instrument offered for probate, see, ante, §§ 51, 52, 53. As to the admissibility of ex- trinsic evidence as affecting the question of revocation, see, ante, §54. As to the construction of joint wills being controlled by their con- tents, see, ante, §§ 78, 79. As to the evidence necessary to establish agreements to execute mutual or reciprocal wills, see, ante, §§ 92, 93. 146 OOMMENTABIBS ON THE LAW OF WILLS. case the formal act essential to revocation had taken place, namely, the destruction of the will, so that the issue before the court was solely a question of intention ; thus it may differ from a ease where the question is as to whether or not the formalities which the law pre- scribes for the revocation of a will had been accom- plished.^^ But even in those jurisdictions where evidence of such parol declarations is admissible it is received with caution since the statements may have been made by the testator for the purpose of deception, or may have been misunderstood or forgotten and, again, they may be misreported by design.^" §126. The Same Subject: Held Inadmissible. In New York an attempt was made to draw a line of distinction between evidence of parol declarations offered for the purpose of proving the revocation of a will and like evidence to prove non-revocation. The court ad- mitted that testimony of parol declarations which were not a part of the res gestce could not be admitted for the purpose of proving the revocation of a will, but held such evidence admissible to prove the negative fact.^** This case was based on an English decision which, how- As to the admissibility of ex- 20 Matter of Marsh, 45 Hun trinsio evidence to show whether (N. Y.) 107. or not the maker of a will in- The decision in Matter of Marsh, tended it to be conditional, see, supra, was based on that in the ante, §§ 110, 111, 112. case of Sugden v. Lord St. Leon- As to the evidence necessary to ards, L. R. 1 Prob. Div. 154, which prove a contract to make a will, last-mentioned case, however. Is in see, post, §§ 136, 138, 139. apparent conflict with the prior de- ls Holtt V. Hoitt, 63 N. H. 475, cision of Marston v. Roe, 8 Ad. & 56 Am. Rep. 530, 3 Atl. 604; Stev- El. 14, and the effect of such ens v. Stevens, 72 N. H. 360, 56 decision has been considerably Atl. 916. weakened by discussion in the fol- ia Collagan v. Bums, 57 Me. 449. lowing cases, viz.: Doe v. Palmer, DUPLICATE WILLS. 147 ever, is somewliat in conflict with a prior decision and lias been questioned in subsequent English cases. The former New York decision was overruled in a subsequent case wherein it was held that evidence of witnesses to parol declarations of a testatrix down to the time of her death to the effect that she intended to dispose of her property by will and intended to leave as her tes- tamentary papers the will and codicil in question, and giving directions regarding their whereabouts, but which could not be found after her death, was held inadmissi- ble. The fact in issue was whether the will had been physically in existence at the time of the death of the testatrix and, if not, whether it had been fraudulently destroyed during her life. The court said, in effect, that if the existence of a will may be proved by parol declara- tions of a deceased, then there is no reason why the ex- ecution and contents of a Avill might not likewise be proved, and thus testamentary dispositions be established by parol declarations of a decedent.^^ The weight of 16 Ad. & El. (N. S.) 757; Wood- -wills being controlled by their con- ■ward V. Goulstone, L. R. 11 App. tents, see, ante, §§ 78, 79. Cas. 469; Atkinson v. Morris, ^g t^ y^e evidence necessary to (1897) P. 40. Matter of Marsh, establish agreements to execute supra, was overruled in Matter of mutual or reciprocal wills, see, Kennedy. 167 N. Y. 163, 60 N. E. ^nte, §§ 92, 93. 442. As to the admissibility of evi- As to the admissibility of ex- trinsic evidence to show whether dence of parol declarations and . ., , . .„ . ^ or not the maker of a will in- surrounding circumstances to show- tended it to be conditional, see, ante, §§ 110, 111, 112. the nature of an instrument offered for probate, see, ante, §§ 51, 52, 53. As to the admissibility of ex- ^^ ^° ^^ evidence necessary to trinsic evidence as affecting the P™^^ ^ contract to make a will, question of revocation, see, ante, ^ee, post, §§ 136, 138, 139. I 54. 21 Matter of Kennedy, 167 N. Y. As to the construction of joint 163, 60 N. B. 442. 148 COMMENTARIES ON THE LAW OF WILLS, authority seems to be that parol declarations which are no part of the res gestce are inadmissible to prove either the fact of revocation or of non-revocation.^^ This case involved only a single will and codicil ■which, could not be found after the death of the testatrix, and the point at issue was whether evidence of parol declarations could prove their ex- istence or fraudulent destruction. The court in its decision takes the apparent position that the pro- ceeding is under the statute deal- ing with lost or destroyed wills and that under such statute the instrument must have been in ex- istence at the time of the death of the testatrix. In this regard the case might be distinguished from that of a will which had been ex- ecuted in duplicate and where one copy could be produced and offered for probate, although the other copy which was known to have been in the possession of the testator during his life time could not be found after his death, and was therefore presumed to have been revoked. 22 Throckmorton v. Holt, 180 U. S. 552, 45 L. Ed. 663, 21 Sup. Ct. 474. See citations under § 124. CHAPTER VTL LOUISIANA TESTAMENTS OB THE lAW OF WILLS IN LOUISIANA. § 127. Definition of the term "testament" in Louisiana. § 128. Disposition by intervention of a third person abolished. § 129. Testaments valid if duly executed, irrespective of their designation. ; § 130. Classification of testaments in Louisiana. I § 131. Nuncupative testaments by public act. , § 132. The same subject: Further requirements. I § 133. Nuncupative testaments by act under private signature. ; § 134. Mystic or secret testaments. §127. Definition of the Term "Testament" in Louisiana. The law of wills in Louisiana is adopted from the Code Napoleon, some sections being copied literally. In the Civil Code of Louisiana the terms "testament" and "nuncupative testament" are applied to written wills and are used in contradistinction to the term "mystic testa- ment." The distinction between the terms as used in Louisiana and those commonly found in use with refer- ence to the common law, must be borne in mind. A testament is defined as the "act of last will, clothed with certain solemnities, by which the testator disposes of his property, either universally, or by universal title, or by particular title. "^ 1 La. civ. Code, art. 1571. benefit of a third person, or under Regarding mutual or reciprocal the title of reciprocal or mutual wills, the statute of Louisiana pro- disposition." — La. Civ. Code, art. vides that "a testament can not 1572. See Orline v. Heirs of Hag- be made by the same act by two gerty, 12 La. Ann. 880. or more persons, either for the (149) 150 COMMENTAEIBS ON THE LAW OF WILLS. §128. Disposition by Intervention of a Third Person Abol- ished. The statute prohibits testamentary dispositions to be left to the choice of some third person, even though such choice is limited to a certain number of persons desig- nated by the testator; thus the institution of an heir or providing for the intervention of an attorney in fact for such a purpose is prohibited.^ §129. Testaments Valid if Duly Executed, Irrespective of Their Designation. i Donations causa mortis are abolished except when made by last will and testament. It is of no importance, how- ever, what name be given to the act of last will provided that it be duly executed with all the formalities prescribed for the validity of testaments, and that the dispositions which it makes, or the manner in which it was made, clearly establishes the fact that it was intended as a final testamentary disposition.* 2 La. Civ. Code, art 1573. but compare La. Civ. Code, arts. Construction of foreign wills in 1573, 1595. This is an exception Louisiana. — The formalities re- to the general rule, but, however, quired by the law of Louisiana for as to the construction of the con- the execution of testaments must tents of the will and the distribu- be strictly observed, otherwise the tion of property thereunder, in so testaments are null and void. — La. far as it affects property in Louis- Civ. Code, art. 1595. But testa- iana, it is construed according to ments made in foreign countries the law of that state. — Jones v. or in other states or territories of Hunter, 6 Rob. Rep. (La.) 235; the United States, have the same Succession of Withers, 45 La. Ann. effect in Louisiana as testaments 556, 12 So. 875. executed under the laws of that 3 La. Civ. Code, art. 1570 ; Sue- state if they are executed with and cession of De Bellisle, 10 La. Ann. according to all the formalities 468; Succession of Ehrenberg, 21 prescribed for the validity of wills La. Ann. 280, 99 Am. Dec. 729; In the places where they were Lucas v. Brooks, 23 La. Ann. 117. made.— La. Civ. Code, art. 1596; LOUISIANA TESTAMENTS. 151 § 130. Classification of Testajnents in Louisiana. Testaments in Louisiana are divided into three princi- pal classes, to-wit, nuncupative or open testaments, mys- tic or sealed testaments, and holographic testaments. Whether a testament be nuncupative or mystic, it must be drawn up in writing either by the testator himself or by some person under his direction. The custom of making verbal testaments, that is to say, resulting from the mere deposition of witnesses who were present when the testator made known to them his will without his hav- ing committed or caused it to be committed to writing, is abrogated.* § 131. Nuncupative Testaments by Public Act. Nuncupative testaments may be by public act, or by act under private signature. In Louisiana nuncupative testaments must be in writing. If made by public act, the testator, in the presence of three witnesses who are residents of the place where the will is executed, or five if they be non-residents, must dictate his testament to a notary public who must write it as dictated; the testa- ment must then be read to the testator in the presence 4 La. Civ. Code, arts. 1574, 1575, La. Ann. 207, 12 So. 349; Zerega 1576. V. Percival, 46 La. Ann. 590, 15 So. An olographic or holographic 476; Heffner v. Heffner, 48 La. testament is one which is written Ann. 1088, 20 So. 281. by the testator himself, and in The law of Louisiana relative to order to be valid it must be en- the wills of soldiers in the field or tirely written, dated and signed by on a military expedition and of the hand of the maker. It is sub- sailors at sea has been taken al- ject to no other form and can be most literally from the Code Napo- made anywhere, even out of the leon. — La. Civ. Code, arts. 1597, State of Louisiana. — ^La. Civ. Code, 1598, 1599, 1600, 1601, 1602, 1603, art. 1588. 1604; Code Napoleon 981, 982, 984, Succession of Fuqua, 27 La. Ann. 985, 987, 988, 995, 996, 997. 271; Succession of Morvant, 45 152 COMMENTABIES ON THE LAW OF WILLS. of the witnesses. All formalities must be complied with without interruption.® If the testament is written in a language which the testator does not understand, even though correctly translated, it is null and void since it is not written in the language dictated.® The dictation must be oral ; it is not sufficient for the testator to put his wishes on slips of paper and hand them to the notary.'' Nuncupative testaments by public act are held to be full proof of themselves when offered for probate, and no fur- ther proof is required unless they are alleged to have been forged.* §132. The Same Subject: Further Requirements. It is not necessary that the exact language of the testa- tor be used if his intention be clearly expressed and the notary faithfully sets forth the same.® The notary may change the speech of an ignorant person into polite lan- guage if the exact meaning be retained;^" and counsel may assist in selecting words so as to clearly express the meaning.^^ The law requires that there must be an express men- tion in the nuncupative testament by public act that it was dictated to the notary, written by the notary, read to the testator in the presence of the required witnesses, and that all the formalities prescribed by statute were complied with." The notary must state the qualifications of the witnesses and set forth in his certificate the full 6 La. Civ. Code, arts. 1577, 1578. 9 Starrs v. Mason, Ezr., 32 La. 6 Gonzales v. Gonjsales, 13 La. Ann. 8. (O. S.) 104. 10 Succession of Saux, 46 La. T Succession of Theriot, 114 La. Ann. 1423, 16 So. 364. 611, 38 So. 471. 11 Landry v. Tomatls, 32 La. 8 La. Civ. Code, art. 1647; Sue- Ann. 113. cession of Block, 131 La. 101, 59 12 Succession of Vollmer, 40 La. So. 29. Ann. 593, 4 So. 254; Succession of LOUISIANA TESTAMENTS. 153 proof of the facts of their competency.'* The testament must be signed by the testator, but if he is unable to write his name he must declare the fact, and express mention of such declaration, together wdth the cause which pre- vents him from signing, must be set forth. The wit- nesses must sign the testament, or at least one of them must sign for all if the others can not write.^* If any fact be not stated, the omission can not be supplied by parol.'^ § 133. Nuncupative Testaments by Act Under Private Signa- ture. A nuncupative testament under private signature must likewise be in writing. A notary is not required, but wit- nesses are essential. The testament must be written by the testator himself or by some other person from his dictation, or by one of the witnesses in the presence of five witnesses residing in the place where the will is re- ceived, or seven witnesses who reside elsewhere ; or it is sufficient if the testator, in the presence of the same num- ber of witnesses, presents the paper on which he has written his testament or caused it to have been written out in their presence, and declares to them that such paper contains his last will.'* Murray, 41 La. Ann. 1109, 7 So. Liebman, 47 La. Ann. 155, 16 So. 126; Succession of Del Escobal, 42 734. La. Ann. 1086, 9 L. R. A. 829, 8 So. The declaration of the testator 268; Succession of Vidal, 44 La. that he is unable or ignorant of Ann. 41, 10 So. 414. how to write or sign his name,. 13 Succession of Vollmer, 40 La. If attes'ted in the notary's car- Ann. 593, 4 So. 254; Succession of tificate, is sufficient to fulfill the Murray, 41 La. Ann. 1109, 7 So. requirement of the signing by the 126. testator and it is not necessary 14 La. Civ. Code, arts. 1579, that he make his mark. See Hen- 1580. nessey's Heirs v. Woulfe, 49 La. 15 Succession of Dorries, 37 La. Ann. 1376, 22 So. 394. Ann. 833; Weick v. Henne, 41 La. 16 La. Civ. Code, art. 1581; Sue- Ann. 1153, 5 So. 528; Monroe v. cession of Reems, 115 La. 102, 38 154 COMMENTAEIES ON THE LAW OP WILLS. The testament must be read to the witnesses either by the testator or by one of the witnesses in his presence. The instrument must be signed by the testator if he know how or is able to sign, and by witnesses, or at least two of them in case the others do not know how to sign, such other witnesses affixing their marks.^'^ A nuncupative testament under private signature, when offered for pro- bate, must be proved by the declarations under oath of at least three witnesses who were present when it was made.** § 134. Mystic or Secret Testaments. A mystic or secret testament, otherwise called a closed testament, is one regarding which the contents are not made public. The testament contains the dispositions which the testator desires regarding his property, and it may be written by himself personally or he may cause it to be written by another person. The testator must sign the paper, whether written by himself or another, and then the paper itself, or another paper serving as an envelope, must be closed and sealed. Sealing, however, does not mean the affixing of a seal, but merely that the testament must be securely enclosed or stuck together So. 930; Acosta v. Marrero, 16 La. .'had. See, also, Sophie v. Duplessis, Ann. 136; Prendergast v. Prender- 2 La. Ann. 724; BalUio v. Innls's gast, 16 La. Ann. 219, 79 Am. Dec. Exr., 12 La. (O. S.) 483; Verdun's 575; ■^ood v. Roane, 35 La. Ann. Heirs v. Verdun's Exr., 15 La. 865; Bourke V. Wilson, 38 La. Ann. (O. S.) 28. 320; Pfarr & Kullman v. Belmont, i7La. Civ. Code, art. 1582; Bun- 39 La. Ann. 294, 1 So. 681. tin v. Johnson, 28 La. Ann. 796; Art. 1583 of the La. Civ. Code Wood v. Roane, 35 La. Ann. 865; provides that If a nuncupative tes- Bourke v. Wilson, 38 La. Ann. tament under private signature be 320. executed In the country, three res- is La. Civ. Code, art. 1648; Suo- Ident witnesses or five non-res- cession of Therlot, 114 La. 611, ident witnesses are sufficient in 617, 38 So. 471. case a greater number can not be All witnesses must understand LOUISIANA TESTAMENTS. 155 with mucilage or some other adhesive substance.^® The testator must present his dispositions thus closed and sealed to a notary public and to three witnesses, or he shall cause it to be closed and sealed in their presence. He shall then declare to the notary in the presence of the witnesses that the paper contains his testament writ- ten by himself, or by another at his direction, and signed by him. The notary shall then draw up the act of super- scription, which shall be written on the paper or the ! envelope enclosing it, and that act shall be signed by the j testator and by the notary and the witnesses. These f or- ; malities must be complied with without interruption ; and Jin case the testator, by reason of any hindrance that has I happened since the signing of the testament, can not sign the act of superscription, mention must be made of the declaration made by himself thereof, in which case it is not necessary to increase the number of witnesses.^" Those who do not know how or are unable to write or to sign their names, can not make dispositions in the form of a mystic will.^^ the language In which the ■will act of superscription are unable to was dictated and written, other- sign the same, express mention wise they are disqualified from shall be made of the fact; but in acting as such and, if those dis- all cases the act must be signed by qualified leave an insufficient num- at least two witnesses." — La. Civ. her of witnesses to the testament. Code, art. 1587. the will is void. The fact that Mystic testaments, to be proved while the testament was being die ^^^ p^.^^^^^^ ^^^^.^^ ^^^ ^^^j^^^. tated it was translated to a wit- ^^^^ ^^^^^ ^^^^ ^^ ^^ ^^^^^ ^^^^ ^^ ness, is msufflcient. — Succession of . . Dauterive, 39 La. Ann. 1092, 3 So. *^« witnesses who were present at „>■, the time of the act of superscrip- 19 Saint V. Charity Hospital, 48 "°°- ^be death or absence of one La. Ann. 236, 19 So. 275; Hart v. <"" more witnesses, however, dis- Thompson's Exr., 15 La. 88. penses with the necessity of pro- 20 La. Civ. Code, arts. 1584, 1585. ducing such witnesses. This 21 La. Civ. Code, art. 1586. applies to all wills.— La. Civ. Code, "If any of the witnesses to the arts. 1650, 1653. CHAPTER VIII. CONTEACTS TO MAKE WILLS. § 135. Relationship of wills and contracts to each other. § 136. Oral contracts to will property viewed with distrust. § 137. Agreement to devise may be based on a future consid- eration. § 138. The necessity of an agreement, express or implied. § 139. Evidence necessary to prove the agreement. § 140. Services to be rendered a valid consideration for promise to will property. § 141. Compensation for services rendered can be recovered. § 142. Compensation for services ; what can be recovered. § 143. Promise to compensate for services by will not invalidated by quick death of promisor. § 144. No right of action for compensation for services until after death of promisor. § 145. Acceptance of other gifts by promisee may waive his rights under the agreement. § 146. Equity enforces an agreement to will property by charg- ing it with a trust. § 147. Specific performance : An exception to the rule that con- tracts should be mutual. § 148. The promisor is merely restricted to the reasonable use of the property agreed to be willed to another. § 149. Probate court has no jurisdiction to enforce agreements to devise property. § 150. Statute of Limitations : Time when it commences to run. § 151. Statute of Frauds does not apply to oral agreements to bequeath personalty. § 152. Oral agreements to devise realty are void under Statute of Frauds. (156) CONTRACTS TO MAKE WILLS. 157 § 153. General rule is that specific performance of oral agree- ments to devise realty will be denied. § 154. Exceptions to general rule : "When specific performance will be granted. § 155. Part performance may remove the bar of the Statute of Frauds. § 156. Part performance : Instances of, as affected by the Stat- ute of Frauds. § 157. Possession of the property as affecting the Statute of Frauds. § 158. What description of the property is necessary, § 135. Relationship of Wills and Contracts to Each Other. A contract is a mutual agreement between two parties, reciprocal in its nature, wherein on one side it is agreed that something shall be done or performed for a consid- eration flowing from the other side. All parties are mu- tually bound. A will, however, is merely the lawful intent of a competent person, legally expressed, regarding his estate and effective only after his death. It is ambulatory in character and has no binding force during his life. Contracts and wills are distinctive in their natures but are sometimes so combined that a contract may have the effect of a will, or a will may be converted into an agree- ment.^ Every man has the right by law to dispose of his own property and he is the sole and best judge of the manner of its disposition. It may be unwise for him to so contract that the disposition of his property be lim- ited, but there is no reason why he can not make a legal agreement to dispose of his property to a particular per- son or for a particular purpose, as well by will as by a conveyance to be made at some specified future time or to become effective upon the happening of some future 1 In re Cawley's Estate, 136 Pa. St. 628, 10 L. R. A. 93, 20 Atl. 567. 158 COMMENTAEIES ON THE LAW OP WILLS. event. A contract founded upon a valuable consideration to make certain provisions in a will for the benefit of a particular person, is valid in law.^ Although a will is not a contract, yet the disposition of property by such a method may be the subject of a contract and the rights thus arising will be protected in equity.^ § 136. Oral Contracts to Will Property Viewed With Distrust. The opportunity which is offered to unscrupulous per- sons to defraud the estates of decedents under the claim that the deceased had made an oral agreement to will specified property to a certain person, has caused courts to grow distrustful of such contracts. Such agreements are hard to disprove as one of the contracting parties is always dead when the case arises. This has forced the courts to be conservative as to the nature of the evidence necessary to establish such agreements and to require that they be clearly and definitely proved. The testimony of witnesses should be viewed with great caution and their evidence should be rejected if they testify under bias or temptation of gain. If such an agreement is 2 Goilmere V. Battison, 1 Vernon N. Y. 480; Edson v. Parsons, 155 48; Owens v. McNally, 113 Gal. N. Y. 555, 50 N. E. 265; Adams v. 444, 33 L. R. A. 369, 45 Pao. 710; Swift, 169 App. Div. 802, 155 N. Y. Caviness v. Rushton, 101 Ind. 500, Supp. 873; Thompson v. Stevens, 51 Am. Rep. 759; Jenkins v. Stet- 71 Pa. St. 161; Rivers v. Rivers's son, 9 Allen (Mass.) 128; Parker Exrs., 3 Desaus. (S. C.) 190, 4 Am. V. Coburn, 10 Allen (Mass.) 82; Dec. 609; McKeegan v. O'Neill, 22 Black V. Hill, 117 Ark. 228, 174 S. C. 454. S. W. 526; Canada v. Canada, 6 3 Baker v. Syfritt, 147 Iowa 49, 61, Cush. (Mass.) 15; Fitch v. Fitch, 8 125 N. W. 998; McCabe v. Healy, Pick. (Mass.) 480; Trull v. East> 138 Cal. 81, 70 Pao. 1008; Baumann man, 3 Mete. (Mass.) 121, 37 Am. v. Kuslan, 164 Cal. 582, 44 L. R. A. Dec. 126; Wellington v. Apthorp, (N. S.) 756, 129 Pao. 986; Rogers 145 Mass. 69, 13 N. E. 10; Johnson v. Schlotterback, 167 Cal. 35, 138 V. Hubbell, 10 N. J. Eq. 332, 66 Am. Pac. 728; Blanc v. Connor, 167 Cal. Dec. 773; Parsell v. Stryker, 41 719, 141 Pac. 217. CONTRACTS TO MAKE WILLS. 159 attempted to be proved by parol evidence, the testimony of any interested party should be corroborated in all substan- tial particulars by disinterested witnesses. If such an agreement would result in disinheriting lawful heirs who would be the natural recipients of the bounty of the de- ceased, it will be regarded with grave suspicion by the courts. It will be enforced only when the terms of the contract are clear and definite and have been fully estab- lished by legal evidence and, further, when the enforce- ment of such an agreement would not be inequitable or unjust.* § 137. Agreement to Devise May Be Based on a Future Con- sideration. The obligation of a contract to make a certain bequest of personalty by will to a particular person is not im- paired though the consideration is to arise wholly or in part in the future, and although the person to whom the promise was made was, at such time, under no legal obli- gation to perform. Thus the consideration for the prom- 4 Russell V. Jones, 135 Fed. 929, lln v. Stevens, 177 N. Y. 39, 69 68 C. C. A. 487; Owens v. McNally, N. E. 118; Ide v. Brown, 178 N. Y. 113 Cal. 444, 33 L. R. A. 369, 45 26, 70 N. E. 101; Rosseau v. Rouss, Pac. 710; Dlcken v. McKlnley, 163 180 N. Y. 116, 72 N. E. 916; Taylor 111. 318, 54 Am. St. Rep. 471, 45 v. Hlggs, 202 N. Y. 65, 95 N. B. 30; N. E. 134; Slonlgerv. Sloniger, 161 In re McMillan's Estate, 167 App. 111. 270, 43 N. E. nil; Stiles v. Div. 817, 153 N. Y. Supp. 400; Van Breed, 151 Iowa 86, 130 N. W. 376; Horn v. Demarest, 76 N. J. Eq. 386, Smith V. Humphreys, 104 Md. 285, 77 Atl. 354; Rivers v. Rivers's 65 Atl. 57; Kinney v. Murray, 170 Exrs., 3 Desaus. (S. C.) 190, 4 Am. Mo. 674, 700, 71. S. W. 197; Wales Dec. 609; McKeegan v. O'Neill, 22 v. Holden, 209 Mo. 552, 108 S. W. S. C. 454. 89; Shakespeare v. Markham, 72 As to the admissibility of evi- N. Y. 400; Brantingham v. Huff, dence of parol declarations and 174 N. Y. 53, 95 Am. St. Rep. 545, surrounding circumstances to show 66 N. B. 620; Mahaney v. Carr, the nature of an instrument offered 175 N. Y. 454, 67 N. E. 903; Ham- for probate, see, ante, §§ 51, 52, 53. 160 COMMENTAEIES ON THE LAW OF WILLS. ise may be services to be rendered at some future date or money to be expended at some future time.^ For in- stance, a person, say in bis declining years, may make a valid agreement to execute a will in favor of another in consideration of the other party taking care of him or providing him with comforts or a home. A conveyance by deed for such a consideration would be valid and there is no reason why he should not make an agreement to do the same thing by will. In such a case, if the promisor had accepted the benefits of the provisions made for him under the agreement and then had failed to make the will according to contract, equity would decree a convey- ance of the property or a jury would give damages to the amount of the value of the property.® This, of course, presumes a valid agreement, it being necessary to keep in mind the effect of the Statute of Frauds upon contracts involving real property. § 138. The Necessity of an Agreement, Express or Implied. No recovery can be had under an alleged contract to will property unless an understanding to that effect, expressed or implied, be shown. If a party voluntarily renders services to another without any agreement as to As to the admissibility of ex- or not the maker of a ■will in- trinsic evidence as affecting the tended it to be conditional, see, question of revocation, see, ante, ante, §§ 110, 111, 112. § 54. As to the extent to which parol As to the construction of joint declarations of a testator may be wills being controlled by their con- admitted to prove or disprove rev- tents, see, ante, §§'78, 79. ocation, see, ante^ §§ 124, 125, 126. As to the evidence necessary to b Train v. Gold, 5 Pick. (Mass.) establish agreements to execute 380; Bernstein v. Lans, 104 Mass. mutual or reciprocal wills, see, 214. ante, §§ 92, 93. 6 Logan v. McGinnis, 12 Pa. St. As to the admissibility of ex- 27; Johnson v. McCue, 34 Pa. St. trinsic evidence to show whether 180; Wyche v. Clapp, 43 Tex. 543. CONTRACTS TO MAKE WILLS. 161 compensation, but relying solely upon the other's gen- erosity and hoping only to receive a legacy at such other 's death, he would have no right of action against the estate of the other should such other die without having made any testamentary disposition in his favor. All surround- ing circumstances, however, are to be considered and they may be such as to show that both parties understood that the one performing labor for the benefit of the other should be compensated under the other's will. Thus where a party, with full knowledge and approbation, has allowed another to expend money or perform services for his benefit, a promise on his part to pay will be implied unless it can be shown that payment was never intended ; and, such a showing not being made, an action will lie to recover the amount of the expenditures or the value of the services.'^ It is not necessary that express agreement be shown, but there must be evidence of a mutual understanding between the parties, either express or implied, that the party rendering the services shall be compensated; for if the services were rendered as a gratuity or upon the mere expectancy that the party receiving the benefit of the same would make compensation therefor by his will, 7 Scully V. Scully's Exr., 28 the nature of an instrument offered Iowa 548; Hankins v. Young, for probate, see, ante, §§ 51, 52, 53. (Iowa) 156 N. W. 380; Harder v. As to the admissibility of ex- Harder, 2 Sandf. Ch. (N. Y.) 17; trinslc evidence as affecting the Quackenbush v. Ehle, 5 Barb, question of revocation, see, ante, (N. Y.) 469; Jacobson v. Exrs. of i§ 54. Lagrange, 3 Johns. (N. Y.) 199; As to the construction of joint Patterson v. Patterson, 13 Johns, wills being controlled by their con- (N. Y.) 379; Shakespeare v. Mark- tents, see, ante, §§ 78, 79. ham, 10 Hun (N. Y.) 311. As to the evidence necessary to As to the admissibility of evi- establish agreements to execute dence of parol declarations and mutual or reciprocal wills, see, surrounding circumstances to show ante, §§92, 93. I Com. on Wills— 11 162 COMMENTARIES ON THE LAW OF WILLS. the party rendering services would have no valid claim against the estate. The right of action arises because of the failure to compensate for services where there has been an agreement for such compensation, and it is imma- terial whether the failure arose from accident or design.* § 139. Evidence Necessary to Prove the Agreement. The relationship of the parties, as well as all the cir- cumstances of the case, should be considered in determin- ing whether or not there had been a valid oral contract to will property. As a general rule a parent is under no obligation to pay a child for labor performed or mainte- nance provided unless he has expressly agreed so to do. Should a son attempt to prove an oral agreement with a deceased parent to will him certain property for services rendered, such a contract could be established only by direct and positive evidence of disinterested witnesses. With reference to a son who had always lived with his parents, this rule would apply with added force. And if the property to be willed was land, the proof of the eon- tract must be stronger than in the case where personal property only was involved.® § 140. Services to Be Rendered a Valid Consideration for Promise to Will Property. Services previously performed by a person not a mem- ber of the promisor's family constitute a good considera- As to the admissibility of ex- s Martin v. Wright's Admrs., 13 trinsic evidence to show whether Wend. (N. Y.) 460, 28 Am. Dec. or not the maker of a will in- 468; Quacltenhush v. Ehle, 5 Barb, tended it to be conditional, see, (N. Y.) 469; McRae v. McRae, 3 ante, §§110, 111, 112. Bradf. (N. Y.) 199; Robinson v. As to the extent to which parol Raynor, 28 N. Y. 494. declarations of a testator may be 9 Hankins v. Young, (Iowa) 156 admitted to prove or disprove rev- N. W. 380; Ackerman v. Fisher, 57 ocation, see, ante, §§ 124, 125, 126. Pa. St. 457; Burgess v. Burgess, CONTRACTS TO MAKE -WILLS. 163 tion for tlie promise to pay for such services.^" A promise to reward a party who has previously rendered services, by maldng a provision for him by will, is valid. 109 Pa. St 312, 1 Atl. 167; Hamlin V. Stevens, 177 N. Y. 39, 69 N. E. 118; Wallace v. Wallace. 216 N. Y. 28, 109 N. E. 872. As to the admissibility of evi- dence of parol declarations and surrounding circumstances to show the nature of an instrument offered for probate, see, ante, §§ 51, 52, 53. As to the admissibility of ex- trinsic evidence as affecting the question of revocation, see, ante, §54. As to the construction of joint wills being controlled by their con- tents, see, ante, §§ 78, 79. As to the evidence necessary to establish agreements to execute mutual or reciprocal wills, see, ante, §§ 92, 93. As to the admissibility of ex- trinsic evidence to show whether or not the maker of a will in- tended it to be conditional, see, ante, §§110, HI, 112. As to the extent to which parol declarations of a testator may be admitted to prove or disprove rev- ocation, see, ante, §§ 124, 125, 126. The rule is well settled that to es- tablish an oral contract to will prop- erty the proof must be clear, une- quivocal and definite, and that the acts said to constitute performance should be equally clear and defin- ite and referable exclusively to the contract. — Stennett v. Stennett, (Iowa) 156 N. W. 406. See, also. Price V. Wallace, 224 Fed. 576; Black V. Hill. 117 Ark. 228. 174 S. W. 526; Blanc v. Connor, 167 Cal. 719, 141 Pac. 217; Collar v. Patterson. 137 111. 403, 27 N. E. 604; Bevington v. Bevington, 133 Iowa 351, 12 Ann. Gas. 490, 9 L. R. A. (N. S.) 508, 110 N. W. 840; Boeck V. Mllke, 141 Iowa 713, 118 N. W. 874, 120 N. W. 120; New- ton's Exr. V. Field, 98 Ky. 186, 32 S. W. 623; In re McMillan's Estate, 167 App. Div. 817, 153 N. Y. Supp. 400; Lasher v. McDermott, 91 Misc. Rep. 305, 154 N. Y. Supp. 798; Rosseau v. Rouss, 180 N. Y. 116, 72 N. E. 916; Taylor v. Higgs, 202 N. Y. 65, 95 N. E. 30; Dyess v. Rowe, (Tex. Civ.) 177 S. W. 1001. It has been held that "the bare statement that she would be pro- vided for or remembered in the will of the testatrix would not jus- tify the conclusion that the testa- trix made a contract by which she would make a devise equiva- lent to the value of the services of the appellee and, having failed to do so, the courts of the country should make provision for her out of the testatrix's estate." — New- ton's Exr. V. Field, 98 Ky. 186, 32 S. W. 623. 10 Jilson V. Gilbert, 26 Wis. 637, 7 Am. Rep. 100; Silverthom v. Wylie, 96 Wis. 69, 71 N. W. 107. 164 COMMENTARIES ON THE LAW OF WILLS. By sucli an agreement the promisor insures to himself the personal use and enjoyment of his property during his life, and the promisee is reimbursed for his services only in the event of the promisor leaving an estate at the time of his death. The promisor certainly derives benefit and advantage by such an agreement, which is sufficient to support his promise." Thus an oral contract, based upon a valid consideration, to leave to the promisee a legacy of personal property is valid and enforceable." § 141. Compensation for Services Rendered Can Be Recovered. Where a party for a valuable consideration or for ser- vices to be rendered agrees to make a will for the benefit of another and dies without doing so, the promisee can recover the consideration advanced or the value of the services.^* If the consideration was service and the amount of money to be bequeathed by will was fixed, recovery is limited to that amount ; but if the amount was indefinite or uncertain then the party is entitled to re- cover for the reasonable value of services rendered. The same rule applies where money has been advanced to 11 Murtha v. Donohoo, 149 Wis. parties ... in the same manner 481, 134 N. W. 406, 136 N. W. 158. and to the same extent as a child 12 Banks v. Howard, 117 Ga. 94, born of their union would inherit." 43 S. E. 438; Jordan v. Ahney, 97 The sundering of natural ties Tex. 296, 78 S. W. 486; Jllson v. brings about changed conditions Gilbert, 26 Wis. 637, 7 Am. Rep. so that no court can restore the 100; Slater v. Estate of Cook, 93 parties to their original situation; Wis. 104, 67 N. W. 15. therefore the contract should be "The surrender by the mother enforced. — Healey v. Simpson, 113 of all control of a child and the Mo. 340, 20 S. W. 881. services and companionship of the is Frost v. Tarr, 53 Ind. 390; ■latter, constituted valuable consid- Martin v. Wright's Admrs., 13 erations for the promise of B. and Wend. (N. Y.) 460, 28 Am. Dec. his wife that she should have and 468; Rice v. Hartman, 84 Va. 251, inherit from the estate of said 4 S. E. 621. CONTRACTS TO MAKE WILLS. 165 the promisor at his request; if the promise was to be- queath an amount certain, that amount can he recovered, otherwise the amount actually expended, with interest.^* Thus if a specific sum of money was to be bequeathed for services to be rendered, if the promisee fully performed his obligation and the promisor died without having made the bequest as agreed, an action would lie against the executors of the decedent's estate to recover the specified amount, on an implied assumpsit for work and labor performed.^" It has been held, however, that where ser- vices have been rendered under an agreement that spe- cific property should be conveyed by will, if there is a breach of contract the amount that can be recovered does not depend upon the value of the particular property agreed to be willed, but the measure of damages is the value of the services without reference to the value of the estate.^® Should the agreement to compensate for labor performed or money paid by a devise of real prop- erty be oral and unenforceable because of the Statute of Frauds, the action can not be upon the contract, but would be for the money advanced with interest, or a quantum meruit to recover the value of the services.^'^ 14 Hursey V. Surles, 91 S. C. 284, S. E. 438; Wallace v. Long, 105 74 S. E. 618; Murtha v. Donohoo, Ind. 522, 55 Am. Rep. 222, 5 N. E. 149 Wis. 481, 134 N. W. 406, 136 666; Ham v. Goodrich, 37 N. H. N. W. 158. 185; Emery v. Smith, 46 N. H. 151; 15 Bell V. Hewitt's Bxrs., 24 Ind. Stoae v. Todd, 49 N. J. L. 274, 280; Jacohson v. Exrs. of La ^ ■^"- 300. See, also, as to recov- Grange, 3 Johns. (N. Y.) 199; Pat- ^"^ °* ^® ^^'"^ of services ren- „ .^ ,o T„i,„„ dered: Welch v. Lawson, 32 Miss, terson v. Patterson, 13 Johns. ,„„„„. _ „„» ^ ' 170, 66 Am. Dec. 606; Jacobson v. (N. Y.) 379. j,^j.g jj( La Grange, 3 Johns. 16 Wallace v. Long, 105 Ind. 522, (j^. Y.) 199; Campbell v. Camp- 55 Am. Rep. 222, 5 N. E. 666. tell, 65 Barb. (N. Y.) 639; Robin- 17 Hudson V. Hudson, 87 Ga. 678, son v. Raynor, 28 N. Y, 494; 27 Am. St. Rep. 270, 13 S. E. 583; Reynolds v. Robinson, 64 N. Y. 589, Banks v. Howard, 117 Ga. 94, 43 166 COMMENTARIES ON THE LAW OF WILLS. § 142. Compensation for Services : What Can Be Recovered. ShoTild one party agree to live with and care for an- other until his death upon the promise of the other to make a testamentary disposition in his favor of all his real and personal property, the uncertainty of life and the length of the time that services are to be rendered, and the like, preclude the idea that either of the contract- ing parties could have had in mind any standard by which the pecuniary value of such services could be determined at the time when the agreement is made. There would also be the further uncertainty as to the amount of prop- erty which would remain at the testator's death, since the longer he should live naturally the less property he would have, while at the same time the greater the service to be rendered. If such an agreement were in parol, should the promisor die without making his will as agreed, the party rendering services would have a right of action against the estate of the deceased for the value of such services, and the amount to be recovered would not de- pend upon nor be gauged by the value of the property.^^ § 143. Promise to Compensate for Sendees by Will Not Invali- dated by Quick Death of Promisor. A valid contract to devise property existing, it can be enforced even should the promisor live but a short time after the agreement had been made and although the con- sideration for the promise had been services to be ren- dered. It is sufficient if the promisee had in good faith undertaken to perform and had done everything required of him. The possibility of loss or gain is assumed by each party.^® isliisk T. Sherman, 25 Barb. 1 9 Howe v. Watson, 179 Mass. „ (N. Y.) 433. 30, 60 N. E. 415. CONTRACTS TO MAKE WILLS. 167 § 144. No Right of Action for Compensation for Services Until After Death of Promisor. Where a party has promised to make a bequest of specific personal property in consideration of services to be rendered Mm up to the time of his death, he can not relieve himself of liability by wrongfully discharging the promisee, and in case of a wrongful discharge the party rendering services is not limited to the amount promised but has a right of action as in a simple case of breach of contract.^" No action, however, can be brought prior to the death of the promisor except there has been a breach of contract on his part.^^ The right of action is based upon the breach of contract, and should the agree- ment be that the promisee was to be devised certain prop- erty which would vest after the death of some third person, the right of action would arise upon the death of the promisor, he failing to make the devise, although the right to the property under the agreement was to have vested at a later date.^^ But the promisee has no right of action during the life of the promisor unless there is shown full performance on the part of the former or a legal excuse for non-performance. If a promisee volun- tarily fails to fulfill the obligation which he has assumed, he has no remedy against the other during his life or against his estate after his death.^* 20 Parker v. Russell, 133 Mass. 22 Llpe v. Houck, 128 N. C. 115, 74; Paige v. Barrett, 151 Mass. 67, 38 S. E. 297. 23 N. E. 725; Edwards v. Slate, 23 Ducker v. Cochrane, 92 N. C. 184 Mass. 317, 68 N. E. 342. 597; Tussey v. Owen, 139 N. C. 21 Patterson v. Patterson, 13 457, 52 S. E. 128. Johns. (N. Y.) 379. 168 COMMENTARIES ON THE LAW OF WILLS. § 145. Acceptance of Other Gifts by Promisee May Waive His Rights Under the Agreement. The fact that the promisor, during his life, had made gifts to the promisee, may be offered in evidence in an action by the promisee against the estate of the other, to recover the value of services rendered under an agree- ment to compensate for the same by last will and testa- ment. Such transfers to the promisee are prima facie proof of payment for the value of the services and such evidence may properly be submitted to the jury.^* Or in a case where one party had contracted to make a spe- cific devise upon a certain named condition, but thereafter made a will which contained a provision for the benefit of the promisee different from that contracted for but which was evidently intended to take' the place of the devise promised, an acceptance of the benefits of the devise under the will waives all rights under the con- tract.25 § 146. Equity Enforces an Agreement to Will Property by Charging It With a Trust. Strictly speaking, an agreement to devise real estate or other property in consideration of services to be ren- dered, or for any other valid consideration, can not be specifically enforced. The agreement can not be enforced during the life-time of the party who is to make the will because a will is revocable and can not become operative until the maker's death, and the agreement can not be specifically enforced after his death because the party has ceased to have the power to make a will. Equity, 24 In re Williams' Estate, 106 25 Davis v. Hendricks, 99 Mo. Mich. 490, 64 N. W. 490; In re 478, 12 S. W. 887; Towle v. Towle, McNamara's Estate, 148 Mich. 346, 79 Wis. 596, 48 N. W. 800. Ill N. W. 1066. CONTRACTS TO MAKE WILLS. 169 however, effects the same end by compelling those who derive title to the property through the estate of the decedent to convey or deliver it in accordance with the terms of the agreement. The principle underlying such cases is that the property is charged with a trust in the hands of the heirs-at-law, devisees, or purchasers with notice.^® Thus where one party has agreed to dispose of specific property by will to another for a valid considera- tion, equity will fasten a trust upon the property in favor of the promisee which he may follow into the hands of the heirs-at-law or devisees of the promisor, or grantees without consideration or with notice.^'^ § 147. Specific Performance : An Exception to the Bule That Contracts Should Be Mutual. The general rule is that contracts can not be specifically enforced unless they are mutual and one person would not have the power to compel the other to render him 26 Randall v. Willis, 5 Ves. Jun. 113 Mo. 340, 20 S. W. 881; Teske 262; Fortescue v. Hennah, 19 Ves. v. Dittberner, 70 Neb. 544, 113 Am. Jun. 67; Jaffee v. Jacobson, 48 Fed. St. Rep. 802, 98 N. W. 57; Lacey 21, 14 L. R. A. 352, 1 C. C. A. 11; v. Zeigler, 98 Neb. 380, 152 N. W. Black V. Hill, 117 Ark. 228, 174 792; Brinker v. Blinker, 7 Pa. St. S. W. 526; Morrison v. Land, 169 53; Logan v. McGinnis, 12 Pa. St. Cal. 580, 147 Pac. 259; Oles v. Wll- 27; Turnipseed v. Sirrine, 57 S. C. son, 57 Colo. 246, 141 Pac. 489; 559, 76 Am. St. Rep. 580, 35 S. B. Chehak v. Battles, 133 Iowa 107, 757; Larrabee v. Porter, (Tex. 12 Ann. Cas. 140, 8 L. R. A. (N. S.) Civ.) 166 S. W. 395; Dyess v. 1130, 110 N. W. 330; Baker v. Rowe, (Tex. Civ.) 177 S. W. 1001; Syfritt, 147 Iowa 49, 125 N. W. Burdlne v. Burdine's Exr., 98 Va. 998; Skinner v. Rasche, 165 Ky. 515, 81 Am. St. Rep. 741, 36 S. E. 108, 176 S. W. 942; In re Will- 992. iams' Estate, 106 Mich. 490, 64 27 Allen v. Bromberg, 147 Ala. N. W. 490; Newton v. Newton, 46 317, 41 So. 771; Owens v. McNally, Minn. 33, 48 N. W. 450; Haubrich 113 Cal. 444, 33 L. R. A. 369, 45 V. Haubrich, 118 Minn. 394, 136 Pac. 710; Baker v. Syfritt, 147 N. W. 1025; Healey v. Simpson, Iowa 49, 61, 125 N. W. 998; Howe 170 COMMENTAEIES ON THE LAW OP WILLS. services ; but there are exceptions, as where by the nature of the contract the time for specific performance does not arise until after the contract has been fully performed by the one seeking to enforce it.^^ The same principles apply in a case where one party induces another to be- queath him certain property by reason of his promise, express or implied, that the legacy shall be used for some specific purpose only, in which case a trust is created and equity will compel the legatee to apply the property as promised.^® § 148. The Promisor Is Merely Restricted to the Reasonable Use of the Property Agreed to Be Willed to An- other. The fact that a person has agreed, for a valid consid- eration, to bequeath and devise all of the property owned by him at the time of his death, does not prevent the promisor from making gifts of his property during his lifetime. Such gifts, however, must not be made for the purpose of defeating the agreement; but gifts which are reasonable, absolute, bona fide and not testamentary in effect, may be made.^" For instance, if a person promises to will one-half of the estate owned by him at the time of V. Watson, 179 Mass. 30, 60 N. E. Rep. 383, it was held that an agree- 415; Van Duyne v. Vreeland, 12 ment under seal not to interfere N. J. Eq. 142; Kastell v. Hillman, with the rights of certain persons 53 N. J. Eq. 49, 30 Atl. 535; Duvale by devise or otherwise, founded V. Duvale, 54 N. J. Eq. 581, 35 Atl. upon a sufficient consideration, 750; Bruce v. Moon, 57 S. C. 60, where the promisor afterward died 35 S. E. 415. leaving his property by will to 28 Howe V. Watson, 179 Mass. others, was sufficient foundation 30, 60 N. E. 415. upon which to base an action of 29 Amherst College Trustees v. ejectment. Ritch, 151 N. Y. 282, 37 L. R. A. so Skinner v. Rasche, 165 Ky. 305, 45 N. E. 876. In Taylor v. 108, 176 S. W. 942; Dickinson v. Mitchell, 87 Pa. St. 518, 30 Am. Seaman, 193 N. Y. 18, 20 L. R. A. CONTRACTS TO MAKE WILLS. 171 Hs death and thereafter makes a deed of gift to another in which he reserves a life interest to himself, such gift will be regarded in the nature of a testamentary disposi- tion in order to protect the promisee.*^ Equity interposes where the gift or transfer was made for the purpose of defrauding the promisee of the property which should go to him under the contract, the weight of authority being that an agreement to will all the property he possesses at his death at the most restricts the promisor to its reasonable use.^^ §149. Probate Court Has No Jurisdiction to Enforce Agree- ments to Devise Property. Where a party for a valid consideration has agreed to make a specific devise in his last will and testament in favor of another person and dies without having done so, but has made a different will, this last will can not be refused probate. The probate court has no jurisdiction to determine or enforce agreements to make wills. Equity, however, wiU declare the executor or devisees under the will to be trustees for the performance of the testator's agreement, and it is therefore necessary that such will, though not in conformity with the provisions of (N. S.) 1154, 85 N. E. 818; Qulnn the promisor retaining an inter- V. Quinn, 5 S. D. 328, 49 Am. St est for life in order to defeat the Rep. 875, 58 N. W. 808. promisee, was testamentary. 31 Fortescue v. Hennah, 19 Ves. In VanDuyne v. Vreeland, 12 N.J. Jun. 67; Rogers v. Schlotterback, Bq. 142, it was held that the prom- 367 Cal. 35, 138 Pac. 728; Johnson Isor could have the unrestricted V. Hubbell, 10 N. J. Eg. 332, 66 Am, use of and could give away the Dec. 773. property; hut could make no tes- 32 Austin V. Davis, 128 Ind. 472, tamentary disposition thereof dif- 25 Am. St. Rep. 456, 12 L. R. A. ferent from the agreement. 120, 26 N. E. 890. To the same effect: Skinner v. In Logan v. Weinholt, 7 Bligh Rasche, 165 Ky. 108, 176 S. W. (N. S.) 1, it was held that a gift, 942; Dickinson v. Seaman, 193 172 COMMBaiTABIES ON THE LAW OF WILLS. the agreement, be admitted to probate.^' Thus an action to compel specific performance of a contract to devise real or personal property possessed at death, made upon a sufficient consideration or for services fully rendered, must be brought in a court of equity.^* The consent of all parties is not sufficient to confer such jurisdiction on the probate court.*^ §150. Statute of Limitations: Time When It Commences to Run. The statute of limitations does not commence to run against a promise to make a devise in consideration of services to be rendered until after the death of the promisor. Even though the promisor had wrongfully terminated the contract and refused to accept the ser- vices, yet if he should make a will according to the agree- ment, there would be no breach. The promise on his part was to make a wiU which he might do up to the last moment of his life, and prior to that time there would be no breach of contract on his part.^® N. Y. 18, 20 L. R. A. (N. S.) 1154, ham, 13 N. J. Eq. 207; Rivers v. 85 N. B. 818; Bruce v. Moon, 57 Exrs. of Rivers, 3 Desaus. (S. C.) S. C. 60, 35 S. E. 415. 190, 4 Am. Dec. 609. asBolman v. Overall, 80 Ala. 35 Hull t. Hull, 149 Mich. 500, 451, 60 Am. Rep. 107, 2 So. 624; 112 N. W. 1126. Allen V. Bromberg, 147 Ala. 317, 36 Thompson v. Orena, 134 Cal. 41 So. 771; In re Burke's Estate, 26, 66 Pac. 24; Rogers v. Schlot- 66 Or. 252, 134 Pac. 11. terback, 167 Cal. 35, 138 Pac. 728; 34 Hull V. Hull, 122 Mich. 338, In re Funk's Estate, 49 Misc. Rep. 81 N. W. 89; Hull v. Hull, 14» 199, 98 N. Y. Supp. 934; Wyche v. Mich. 500, 112 N. W. 1126; Svan- Clapp, 43 Tex. 543; Stevens v. Lee, burg V. Fosseen, 75 Minn. 350, 74 70 Tex. 279, 8 S. W. 40; Jordan v. Am. St. Rep. 490, 43 L. R. A. 427, Abney, 97 Tex. 296, 78 S. W. 486; 78 N. W. 4; Stellmacher v. Bru- Dyess v. Rowe, (Tex. Civ.) 177 der, 89 Minn. 507, 99 Am. St. Rep. S. W. 1001; Waddell v. Waddell, 609, 95 N. W. 324; Wright v. Tins- (Tenn. Ch.) 42 S. W. 46. ley, 30 Mo. 389; Chubb v. Peck- CONTRACTS TO MAKE WILLS. 173 § 151. Statute of Frauds Does Not Apply to Oral Agreements to Bequeath Personalty. Oral agreements to bequeath personal property are not within the Statute of Frauds, as the statute includes only those contracts which by their terms are not to be per- formed within one year. Nor are they contracts for the sale of lands or goods. An agreement to bequeath per- sonalty, the performance of which is naturally dependent upon the duration of human life, is not within the statute since it may be performed within one year. The party r making the promise may die within the year and thej' agreement must be performed on his part during hisil lifetime.*^ Such contracts are essentially different from'r those to devise all of one's property, both real and per-k sonal, which would be within the Statute of Frauds.^* § 152. Oral Agreements to Devise Realty are Void Under Stat- ute of Frauds. An executory oral agreement between two parties whereby each is to will to the other his property, real and personal, or whereby one is to will to the other his 37 See, ante, §§ 100, 101, as to Wellington v. Apthorp, 145 Mass. the effect of the Statute of Frauds 69, 13 N. B. 10; Jacobson v. Exrs. on mutual or reciprocal wills of of La Grange, 3 Johns. (N. Y.) property. Ridley v. Ridley, 34 199; Patterson v. Patterson, 13 Beav. 478; Anon., 1 Salk. 280; Johns. (N. Y.) 379; Kent v. Kent, Fenton v. Emhlers, 3 Burr. 1278; 62 N. Y. 560, 20 Am. Rep. 502; Bell V. Hewitt's Exrs., 24 Ind. 280; Jilson v. Gilbert, 26 Wis. 637, 7 Sturgeon's Admr. v. MoCorkle, 163 Am. Rep. 100. Ky. 8, 173 S. W. 149; Lyon V. King, Compare: Izard v. Middleton, 11 Mete. (Mass.) 411, 45 Am. Dec. 1 Desaus. (S. C.) 116, which was 219 ; Worthy v. Jones, 11 Gray overruled in Turnipseed v. Sirrine, (Mass.) 168, 71 Am. Dec. 696; Pe- 57 S. C. 559, 76 Am. St. Rep. 580, ters V. Westborough, 19 Pick. 35 S. E. 757. (Mass.) 364, 31 Am. Dec. 142; Up- 3 s Gould v. Mansfield, 103 Mass. dike V. TenBroeck, 32 N. J. L. 105; 408, 4 Am. Rep. 573. 174 COMMENTARIES ON THE LAW OF WILLS. property, real and personal, is in effect a contract for the sale of lands and, in so far as it affects real property, is void under the Statute of Frauds.^* Being void, it is gen- erally held that it can not be specifically enforced, and it might be questioned whether such a contract has suffi- cient validity to support an action for damages unless the injured party was induced to enter into the contract and suffered because of fraud or bad faith.*" The meas- ure of damages in such a case would be the value of what had been paid by one party to the other, either in money or services, relying upon the agreement of the other, the other refusing to perform. One party would thus be holding money or would have received the benefit of the services rendered and would be bound to make restitu- tion." §153. Greneral Rule Is That Specific Performance of Oral Agreements to Devise Realty Will Be Denied. The general rule is that specific performance of an oral agreement to devise land in consideration of services rendered will not be granted. Such agreements are merely engagements of honor, for the promisee could 39 Caton V. Caton, L. R. 1 Ch. devisee to produce the document App. 137; Mundorff v. Kilbourn, would not destroy iis rights. 4 Md. 459; Harder v. Harder, 2 See, ante, §§100, 101, as to the Sandf. Ch. (N. Y.) 17; Izard v. effect of the Statute of Frauds on Middleton, 1 Desaus. (S. C.) 116. mutual or reciprocal wills of real In Brinker v. Brinker, 7 Pa. St. property. 53, it was held that the Statute 40 Barlckman v. Kuykendall, 6 of Frauds was no bar where the Blackf. (Ind.) 21; McCracken v. terms of the agreement had been McCracken, 88 N. C. 272; Bender's incorporated in the will of the Admrs. v. Bender, 37 Pa. St. 419. promisor, the will having been ii Day v. Wilson, 83 Ind. 463, lost, but the substance of the de- 43 Am. Rep. 76. See Barickman vise was proved by parol. The court v. Kuykendall, 6 Blackf. (Ind.) 21, said the accidental inability of the to the effect that the action would CONTRACTS TO MAKE WILLS. 110 cease performing the labor at any time, and there was no original consideration for the promise.*^ There are excep- tions, however, to this rule, for equity will interpose to prevent fraud. For instance, it would be a virtual fraud for one to accept the benefit of services rendered him by another who obviously was relying upon an oral agree- ment that certain property would be devised him by will and where the benefit and labor have so changed the situation of the parties that it would be practically im- possible to restore them to their former condition. It would be inequitable to allow one to receive the benefit of the labor of the other and then to allow such other merely the chance of being reimbursed through an action at law. Whether or not the agreement should be enforced is a matter addressed to the conscience of the chancellor and relief will not be granted unless by competent evi- dence it is shown that the contract is definite and certain and also unless it appears that the remedy is not unjust or oppressive to third parties and not against public policy.** Such a contract regarding lands can be estab- lished only by direct, positive and unambiguous evidence ; there must have been a clear meeting of the minds of the contracting parties; disinterested witnesses must give evidence of the contract by having been present when it was made or by having heard the parties repeat it in each be indebitatus assumpsit. See, Reynolds v. Robinson, 64 N. Y. also, Maddlson v. Alderson, L. R. 589; Bender's Admrs. v. Bender, 8 App. Cas. 467; Welch, v. Lawson, 37 Pa. St. 419. App. Cas. 467; Welch v. Lawson, *^ Carlisle v. Fleming, 1 Harr. 32 Miss. 170, 66 Am. Dec. 606; ^^^^"^ '^^^• 43 Townsend v. Vanderwerker, Emery T. Smith, 46 N. H. 151; Jacobson v. Exrs. of La Grange, 160 U. S. 171, 40 L. Ed. 383, 16 Sup. Ct. 258. In Bruce v. Moon, 57 S. C. 3 Johns. (N. y.) 199; Campbell v. go, 35 S. E. 415, the court sus- Campbell, 65 Barb. (N. Y.) 639; talned an agreement to devise real Robinson v. Raynor, 28 N. Y. 494; and personal property, and set 176 COMMENTARIES ON THE LAW OP WILLS. other's presence. Sucli an agreement can not be inferred from mere declarations.** §154. Exceptions to General Rule: When Specific Perform- ance Will Be Granted. There are other exceptions to the general rule. Where an oral agreement to devise land has been fully executed on the part of the promisee, the consideration for the promise having been services to be rendered and where such services were of such a peculiar domestic nature that it would be impossible to estimate their value by any pecuniary standard, specific performance will be decreed. Thus personal relationship may so enter into such an agreement as to make it evident that the contract- ing parties did not intend to place a monetary value upon such services, as where the agreement was that a minor should live with the promisor and render him service during his minority. However, if the value of the services can be estimated in money damages so that the party rendering them can be made whole, specific per- formance will be denied.*^ aside a deed made by the promisor Svanburg v. Fosseen, 75 Minn. 350, prior to his death. 74 Am. St. Rep. 490, 43 L. R. A. 44 Owens V. McNally, 113 Cal. 427, 78 N. W. 4; Laird v. Vila, 444, 33 L. R. A. 369, 45 Pac. 710; 93 Minn. 45, 106 Am. St. Rep. 420, Rogers v. Schlotterback, 167 Cal. lOON. W. 656; Van Duyne v. Vree- 35, 138 Pac. 728; Blanc v. Connor, land, 12 N. J. Eq. 142; Rhodes v. 167 Cal. 719, 141 Pac. 217; Mon- Rhodes, 3 Sandf. Ch. (N. Y.) 279. sen V. Monsen, 174 Cal. 97, 162 ^ut compare Carlisle v. Fleming, Pac. 90; Ackerman v. Ackerman's ^ ^^"- ^°®'-^ ^^'^■ Exrs., 24 N. J. Eq. 585, 586; Acker- , "^^^ "^"^^^ in Tennessee, contrary T^- V c^ T> ci A^n T, t° ^^^ weight of English and man V. Fisher, 57 Pa. St. 457; Bur- , . ..^ .^ . , , American authority, is that the full gess V. Burgess, 109 Pa. St. 312, 1 rendition of services by one to ■'^tl. 167. another under an oral agreement 45 Owens V. McNally, 113 Cal. by the latter to devise real and 444, 33 L. R. A, 369, 45 Pac. 710; personal property in consideration CONTRACTS TO MAKE WILLS. 177 § 155. Part Performance May Remove the Bar of the Statute of Frauds. The mere fact of part performance is not snflScient to take out of the Statute of Frauds an oral agreement to devise real property, for there is nothing about a mere agreement to devise which would prevent the gen- eral principles being applied to it as in the case of any other contract. If, however, there has been such per- formance on the part of the promisee so that the breach of the agreement on the part of the other would work a fraud, specific performance may be enforced. Specific performance, however, can not be demanded as a matter of right; relief will or will not be granted according to the circumstances surrounding the case, and specific per- formance will be denied if it would work a wrong or an injustice to third parties. Even though there has been such a part performance as wiU remove the bar of the Statute of Frauds, yet the right to grant or withhold spe- cific performance rests in the discretion of the court, and will only be granted where the contract is definite and certain and where the remedy prayed for is not oppres- sive or unjust to innocent third persons or against public policy.*® § 156. Part Performance — Instances of, as Affected by the Statute of Frauds, There is much dispute as to what part performance is sufficient to take an oral contract to devise lands out of the Statute of Frauds. A man may have agreed with a woman, previous to their marriage, that he will thereafter of such services, Is not such part Y. (8 Tenn.) 333; Goodloe v. Good- performance as to take the agree- loe, 116 Tenn. 252, 8 Ann. Cas. 112, ment out of the Statute of Frauds. 6 L. R. A. (N. S.) 703, 92 S. W. 767. See Patton v. MeClure, Mart. & 46 Owens v. McNally, 113 Cal. I Com. on Wills— 12 178 COMMENTARIES ON THE LAW OF WILLS. make a will containing certain provisions in her favor, but if lie subsequently makes a different will, the fact of marriage in itself is not sucb part performance as will remove the ban of the statute.*'' The adoption of a child under an oral agreement to make no will which would deprive the one adopted of his share in the estate of the parent by adoption, has been held to be not such part performance as will take the case out of the statute.*^ But the better rule is that if one adopts a minor under an oral agreement to leave his property, or a certain por- tion thereof, by will to the adopted child, and the one adopted lives for years with the promisor, yielding to him all the duties of a natural child, it would be a fraud for the parent by adoption to make a testamentary dis- position of his property contrary to the agreement. In such a case equity should interpose and grant relief. It must be borne in mind, however, that such agreement can not be enforced against an innocent purchaser of the property and for value, but only against the estate or the devisees of the deceased, or grantees without value or with notice.*® Or where two persons mutually agree to make wills devising real property to each other, the execution by one of his will according to the understanding is not part 444, 33 L. R. A. 369, 45 Pao. 710; 253; Gupton v. Gupton, 47 Mo. 37; Johnson v. Hubbell, 10 N. J. Eq. Sutton v. Hayden, 62 Mo. 101 ; Van 332, 66 Am. Dec. 773. Duyne v. Vreeland, 12 N. J. Eq. 47 Gould V. Mansfield, 103 Mass. 142; Patterson v. Patterson, 13 408, 4 Am. Rep. 573. As to part Johns. (N. Y.) 379. performance taking oral contracts 48 Dicken v. McKinley, 163 111. to devise out of the Statute of 318, 54 Am. St. Rep. 471, 45 N. E. Frauds, see: Warren v. Warren, 134. 105 111. 568; Watson v. Mahan, 20 49 Van Duyne v. Vreeland, 12 Ind. 223; Twiss v. George, 33 Mich. N. J. Bq. 142. CONTRACTS TO MAKE WILLS. 179 performance, for the party has the right of revocation."*' If, however, there was a consideration for the promise or a detriment suffered, as where a man agreed prior to marriage to make, after marriage, a suitable provision for his wife by will if she would renounce her dower rights, which she did, the agreement would be enforce- able. A man may renounce his right to make his will except in a particular manner and if based upon a suffi- cient consideration and his breach of agreement would be a fraud, equity will interpose and grant relief.^^ § 157. Possession of the Property as Affecting the Statute of Frauds. The mere payment of a money consideration is not sufficient to take an oral contract to devise lands out of the Statute of Frauds,^^ yet it seems well settled that such payment when followed by the taldng of the pos- session of the lands by the promisee and the making of improvements thereon, is such evidence of part perform- ance as will entitle the promisee to have the agreement specifically enforced.®* Possession is, in itself, some evi- 50 Izard v. Middleton, 1 Desaus. property. The husband died and (S. C.) 116. But compare Turnip- left a will containing the agreed seed V. Sirrine, 57 S. C. 559, 76 devise. The wife objected, claim- Am. St. Rep. 580, 35 S. B. 757. ing dower rights in the property. 51 Goilmere v. Battison, 1 Ver- The promisee had not fully com- non 48; Brinker v. Brinker, 7 Pa. pleted the agreement, but through St. 53; Rivers v. Rivers's Exrs., no fault on his part. It was held 3 Desaus. (S. C.) 190, 4 Am. Dec. that the widow had relinquished 609. lier dower rights in the land. In Brandes v. Brandes, 129 Iowa 52 Kelly v. Kelly, 54 Mich. 30, 351, 105 N. W. 499, the agreement 19 N. W. 580; Grindling v. Rehyl, was that one party was to render 149 Mich. 641, 15 L. R. A. (N. S.) services and care for a husband 466, 113 N. W. 290. and wife in consideration of hav- 53 Wills v. Stradling, 3 Yes. Jun. ing devised to him certain real 378; Munddy v. Jolliffe, 5 My. & 180 COMMENTAEIES ON THE LAW OF WILLS. dence of ownership, and althougli a contract to devise lands may rest in parol, yet if one of the parties is put into the complete possession of the property pursuant to the agreement and otherwise fully performs the contract on his part, such part performance and possession will take the contract out of the statute.^* § 158. What Description of the Property Is Necessary. There is no reason why an agreement to devise real property should be more specific as to the description than is required with respect to a deed or a mortgage. A devise of all or any aliquot part of the real estate of which the testator died seized would not be open to seri- ous objection and the description in the agreement need not be more complete.^® Cr. 167; Williams v. Evans, L. R. 522, 55 Am. Rep. 222, 5 N. B. 666; 19 Eq. 547; Brown v. Sutton, 129 Smith v. Pierce, 65 Vt. 200, 25 Atl. U. S. 238, 32 L. Ed. 664, 9 Sup. Ct. 1092. But see contra: Kelsey v. 273; Townsend v. Vanderwerker, McDonald, 76 Mich. 188, 42 N. W. 160 U. S. 171, 40 L. Ed. 383, 16 Sup. 1103; Rlddell v. Riddell, 70 Neb. Ct. 258; Owens v. McNally, 113 472, 97 N. W. 609. Cal. 444, 33 L. R. A. 369, 45 Pac. 55 Wilson v. Boyce, 92 U. S. 320, 710; Smith v. Pierce, 65 Vt. 200, 23 L. Ed. 608; Roehl v. Haumes- 25 Atl. 1092. iser, 114 Ind. 311, 15 N. E. 345; 64 Moreland v. Lemasters, 4 Jackson v. Delancey, 11 Johns. Blackf. (Ind.) 383; Lee v. Carter, (N. Y.) 365; Pond v. Bergh, 10 52 Ind. 342; Mauck v. Melton, 64 Paige Ch. (N. Y.) 140. Ind. 414; Wallace v. Long, 105 Ind. CHAPTEE IX. NUNCUPATIVE WILLS. § 159. Definition of a nuncupative will. § 160. During the ages when the art of writing was compara- tively unknown, oral wills of personalty were neces- sarily sanctioned. \ § 161. The early privileges conferred on those who could read : and write. ' § 162. The law of nuncupative wills derived from the civil law, J § 163. Definitions by early writers, of nuncupative wills. § 164. The early rule was that oral wills were allowed only when the testator was in extremis. § 165. Provisions of the Statute of Frauds regarding oral wills : Those of soldiers and sailors not affected. § 166. The same subject : Particular sections referred to. § 167. The same subject : The restrictions imposed caused the practical abolition of nuncupative wills. § 168. The Statute of Wills (A. D. 1837) as affecting oral tes- taments. § 169. In the United States, the law of nuncupative wills is variously founded on the Statute of Frauds or the Statute of Wills. § 170. Nuncupative wills operate only on personal property. § 171. Incomplete testamentary writings, prior to the Statute of Wills, were held effective as nuncupative wills of personalty. § 172. The same subject : Wills of soldiers and sailors, infor- mally executed, may be admitted to probate. § 173. The terms "soldiers" and "seamen" include officers and all degrees. § 174. Question as to whether soldiers and seamen have an un- qualified right to make nuncupative wills. (181) 182 COMMBNTABIES ON THE LAW OF WILLS. § 175. Soldiers in actual military service are those on an expe- dition. § 176. When is a soldier on an expedition? Illustrations. § 177. The same subject. § 178. When does a military expedition begin or end ? § 179. Mariners and seamen at sea. § 180. In some jurisdictions, any qualified person may, under certain restrictions, make a nuncupative will. §181. Meaning of the term "last sickness" — in extremis. § 182. Necessity of calling others to witness the testament. § 183. Intention to make a will must be clearly established by disinterested witnesses. § 184. There must be strict compliance with the statutory re- quirements. § 185. Number of witnesses to nuncupative wills. § 186. Committing the spoken words to writing. § 187. Evidence of witnesses to oral testaments must substan- tially agree. § 188. A written will can not be revoked by one that is oral. § 189. Nuncupative wills of soldiers and sailors have been held valid although the testators had ceased their privileged callings. § 190. The same subject : Criticism of the rule. § 159. Definition of a Nuncupative Will. A nuncupative will is defined to be an oral will declared in the presence of witnesses by a testator in extremis, or under circumstances considered equivalent thereto, and afterwards reduced to writing.^ 1 2 Bl. Com. ♦500; Read v. Phil- Devecmon v. Devecmon, 43 Md. lips, 2 Phlllim. 122; Nutt v. Nutt, 335; Watts v. Public Admr., 4 1 Freem. Ch. (Miss.) 128; Ex Wend. (N. Y.) 168; Gaskins v. parte Henry, 24 Ala. 638; Brown Gaskins, 3 Ired. (25 N. C.) 158. v. Tilden, 5 Har. & J. (Md.) 371; NUNCUPATIVE WILLS. 183 § 160. During the Ages When the Art of Writing Was Com- paratively Unknown, Oral Wills of Personalty Were Necessarily Sanctioned. The popular conception of a will is that of a written instrument, duly subscribed and witnessed according to prescribed formalities. The ordinary will of today is required, among other things, to be in writing, subscribed by the maker, and attested by witnesses. These requi- sites, however, were not always, nor are they now, uni- versally demanded. The common law is of ancient origin, and during its early development the art of writing was comparatively unknown. The law had to adapt itself to such conditions. During the ages of ignorance the only method of making a will was by words and signs, and as but few could write, the common law recognized a will of chattels as good without writing.^ § 161. The Early Privileges Conferred on Those Who Could Read and Write. The art of reading and writing was so rare an accom- plishment in the early stages of the common law that it conferred great privileges and the person who possessed it was entitled, under the name of benefit of clergy, to an exemption from civil punishment. This privilege was curtailed in England by legislation from time to time. With the general dissemination of knowledge following the invention of printing, it was found that as many laymen as divines were admitted to the privilegium cleri- cale, therefore the statute 4 Henry "VIII, ch. 13, drew a distinction between lay scholars and clerks in holy orders, subjecting the former to a slight degree of punishment 2 4 Kent Com. *516; Hubbard v. Hubbard, 12 Barb. (N. Y.) 148. 184 COMMENTAKIES ON THE LAW OP WILLS. and prohibiting them from receiving the benefit of cleri- cal privileges more than once. This distinction between scholars in and out of orders was abolished by the stat- utes 28 Henry VIII, ch. 1, and 32 Henry VIII, ch. 3, but was practically restored by the statute 1 Edw. VI, ch. 12.^ Later it was deemed that education was not an extenuating circumstance to be urged by the 'guilty, but was rather the reverse, and by the statute 5 Anne, ch. 6, the lay scholar was deprived of any advantage over the ignorant.* § 162. The Law of Nuncupative Wills Derived from the Civil Law. The doctrine in relation to nuncupative wills is in fact derived from the civil law, and is of very ancient origin. We find the following in the laws of Justinian: "If a man wishes to dispose of his effects, by a nuncupa- tive or unwritten testament, he may do so, if, in the presence of seven witnesses, he verbally declares his will ; and this will be a valid testament, according to the civil law."® It appears that neither last sickness, nor any sickness, was necessary to give it validity; it was suffi- cient if the witnesses, within a reasonable time after the death of the testator, went before a magistrate and gave an account of what had taken place and a formal state- ment was drawn up and signed. 3 4 Bl. Com. *367; State v. Bi- upon witli disfavor, since they are lansky, 3 Minn. 246. likely to be the subjects of fraud, 4 4 Bl. Com. *370; State v. Bi- perjury, mistake or misrecoUeo- lansky, 3 Minn. 246. tlons. — Leathers v. Greenacre, 53 People have now become so Me. 561. familiar with the use of the pen e Inst. Just., lib. 2, tit. 10, § 14. that oral testaments are looked NUNCUPATIVE WILLS. 185 § 163. Definitions by Early Writers, of Nuncupative Wills. In. Bacon's Abridgment, first published in 1736, tak- ing the definition of a nuncupative will as laid down by Perkins, whose work was published under Henry VIII, we find it to be "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 stayed the writing of his testament, desires his neighbors and friends to bear witness of his last will, and then declares the same presently before them; and this is called a nuncupative or nuncupatory will or testament; and this being after his death proved by witnesses, and then put in writing by the ordinary, is of as great force, for any other thing, but land, as when at the first in the life of the testator it is put in writing. "^ Perkins also says in his work (§ 476) that a nuncupative will is proper when the testator "lieth languishing for fear of sudden death, dareth not to stay the writing of his testament, and, therefore, he prayeth his curate, and others, his neighbors, to bear witness to his last will, and declareth by word what his will is." Swinburne, whose treatise was published in the time of James I, says this Mnd of a testament is commonly made when the testator is now very sick, weak, and past all hope of recovery. Further, in defining such testa- ments, he says: "A nuncupative testament is, when the testator without any writing doth declare his will before a sufficient number of witnesses. It is called nuncupative because when a man maketh a nuncupative testament, he must name his executor, and declare his whole mind be- fore witnesses.'"' He also says: "In the making of a nuncupative will or testament, this is chiefly to be ob- 6 7 Bac. Abr. by Gwyllim 305, 7 Swinburne, Wills, pt. 1, § 12, Bouvier's ed., tit. Wills, D. 186 COMMENTARIES ON THE LAW OP WILLS. served, that the testator do name his executor, and declare his mind by words of mouth, without writing, before witnesses. As for any precise form of words, none is required, . . . so that the testator 's meaning do appear."^ He further says: "It is received for an opinion, amongst the ruder and more ignorant people, that if a man should be so wise as to make a will in health, . . . that then surely he should not live long after; and therefore they defer it xmtil such time, when it were more convenient to apply themselves to the dis- posing of their souls, than of their lands and goods."* § 164. The Early Rule Was That Oral Wills Were Allowed Only When ihe Testator Was In Extremis. Although prior to the Statute of Frauds (A. D. 1677) there was no law which prescribed that wills of chattels without writing could be made only when the testator was in extremis, yet it appears well settled that nuncu- pative wills were allowed only in extreme cases. During the reigns of Henry VIII, Elizabeth and James I, the art of reading and writing had become so widely diffused that they were limited to those cases where the "testator was very sick, weak and past all hope of recovery" and where time did not exist for the making of a will in writing, "necessity being the justification of the oral testament."^" § 165. Provisions of the Statute of Frauds Regarding Oral Wills: Those of Soldiers and Sailors Not Affected. Opportunities for fraud were opened because of nun- cupative wills and codicils, and abuses and perjuries s Swinburne, Wills, pt. 4, § 29. lo 4 Kent Com. *516, *517; Prince 9 Swinburne, Wills, pt. 1, § 12. v. Hazleton, 20 Johns. (N. Y.) 502, NUNCUPATIVE WILLS. 187 •were committed.^^ Therefore the Statute of Frauds, 29 Chas. II, A. D. 1677, placed many restrictions upon oral testaments. ^^ Sections nineteen to twenty-three inclusive of this act related to nuncupative wills, but by the last named section, any soldier in actual military service, or any mariner or seaman at sea, could dispose of his mov- ables, wages and personal estate the same as before the act. As to all other persons the statute made specific provisions. Section nineteen enacted: "No nuncupa- ' tive will shall be good where the estate thereby be- '■ queathed shall exceed the value of thirty pounds, that is ' not proved by the oath of three witnesses,^* at the least, J that were present at the making thereof, and bid by the ; testator to bear witness that such was his will, or to that effect." By the statute of 4 Ann., ch. 16, §14, it was declared: "That all such witnesses as are and ought to be allowed to be good witnesses upon trial at law, by the laws and customs of this realm, shaU be deemed good witnesses to prove any nuncupative will, or anything relating thereto." §166. The Same Subject: Particular Sections Referred To. Section nineteen of the Statute of Frauds provided that no oral testament — not referring to the wills of sol- diers and sailors — should be good except as follows: "Unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she hath 11 Am. Dec. 307; Harp T. Adams, 124 Kent Com. *517; 2 Bl. Com. 142 Ga. 5, 82 S. E. 246. *500. 11 Cole V. Mordaunt, cited in 4 13 The civil law required seven Ves. Jun. 196, decided in the 28th witnesses.— Inst. Just, lib. 2, tit. 10, year of Charles 11, one year be- § 14; 2 Bl. Com. *500. fore the Statute of Frauds. 188 COMMENTARIES ON THE LAW OP WILLS. been resident for the space of ten days or more next be- fore the making of such mil, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwell- ing." Section twenty provided as to nuncupative wills other than those of soldiers and sailors: "That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will." Sec- tion twenty-one enacted : ' ' That no letters testamentary, or probate of any nuncupative will, shall pass the seal of any court, till fourteen days, at the least, after the decease of the testator be fully expired, nor shall any nuncupative will be at any time received to be proved, unless process have first issued to call in the widow, or the next of kin- dred of the deceased, to the end that they may contest the same, if they please." §167. The Same Subject: The Bestrictions Imposed Caused the Practical Abolition of Nuncupative Wills. Nuncupative wills were not prohibited by the Statute of Frauds, and as to soldiers in actual military service and mariners and seamen at sea, the act had no applica- tion. The statute did, however, surround oral testaments with so many restrictions as to cause their use to be practically abolished. Blackstone, after reviewing the foregoing provisions of the statute, says: "Thus hath the legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requi- sites, that the thing itself has fallen into disuse ; and is hardly ever heard of, but in the only instance where NUNCUPATIVE WILLS. 189 favor ouglit to be shewn to it, when the testator is sur- prised by sudden and violent ilbiess."^* §168. The Statute of WiUs (A. D. 1837) as Affecting Oral Testaments. In the year A. D. 1837, long after the independence of these United States, there was passed in England an act for the amendment of the laws with respect to wills. This statute enacted that no will should be valid unless it was in writing and executed according to the formalities pre- scribed, this having reference to both real and personal property, but soldiers in actual military service and mariners and seamen at sea were excepted, they being allowed to dispose of their personal estates as they might have done prior to the statute.^® § 169. In the United States, the Law of Nuncupative Wills Is Variously Pounded on the Statute of Frauds or the Statute of Wills. In some of the states the law relative to nuncupative wills is based on the Statute of Frauds, in others upon the Statute of Wills enacted in the first year of the reign of Queen Victoria, and in all instances it is necessary 14 2 BI. Com. *501. tenements or hereditaments, or 15 1 Viet, ch. 26, §§9, 11. The any clause thereof, or to the devise > Statute of Frauds, 29 Car. II, ch. 3, of any estate per autrie vie, or to; passed A. D. 1677, in sections 5, 6, nuncupative wills, or to the repeal.i 12, 19, 20, 21, 22 and 23, dealt with altering or changing of any will inf" , the subject of wills and the due writing concerning any goods or, execution thereof, sections 19 to 23 chattels or personal estate, or anyj^ inclusive relating to nuncupative clause, devise or bequest therein, wills. So much of the Statute of was repealed by the Wills Act of Frauds as related to devises or 1837, 1 Vict., ch. 26. Section 11 of bequests of lands or tenements, or the last mentioned act, however, to the revocation or alteration of was as follows: "Provided always, any devise in writing of any lands, and be it further enacted, that any 190 COMMENTAEIES ON THE LAW OF WILLS. that the statutes of the various jurisdictions be referred to. In some of the states oral testaments are allowed in no instances except when made by soldiers in actual mili- tary service and mariners and seamen at sea. Massa- chusetts and New York are two examples, yet the original rule in New York was that based on the Statute of Frauds which had been almost literally adopted in that state, but has since been changed.^" In other jurisdictions oral tes- taments, in addition to those of the privileged classes of soldiers and sailors, may be made under varying condi- tions. While there is a general resemblance in the stat- utes of such jurisdictions, some practically copying the acts of another, yet there are slight differences in so many instances that it is impossible, without setting forth the numerous statutes at length, to do more than give a general summary. The principles involved, however, are the matters of importance and those will be dealt with rather than the particular wording of the various acts. In most jurisdictions nuncupative wills can be made only during the last sickness of the testator and in his own home unless he be taken suddenly ill while absent there- from and die before his return. Oral testaments are also required to be witnessed by two or more competent per- sons who are called by the testator to his presence to soldier being in actual military ser- code provides for nuncupative tes- vice, or any mariner, or seamen taments either by public act, or being at sea, may dispose of bis by act under private signature, but personal estate as be might have they are in writing and witnessed, done before the making of this The Louisiana Civil Code, arts, act." 1597-1604, refers to oral testaments 16 Prince v. Hazleton, 20 Johns, of soldiers in the field and mari- (N. Y.) 502, 11 Am. Dec. 307; Hub- ners and seamen at sea, being bard v. Hubbard, 12 Barb. (N. Y.) taken from the Code Napoleon, and 148; Ex parte Thompson, 4 Bradf. in many instances being a literal (N. Y.) 154. In Louisiana the copy. NUNCUPATIVE WILLS. 19.1 bear witness to his will. The statutes generally provide that they must be reduced to writing within a specified time varying from three to sixty days, otherwise that they can not be proven after a lapse of six months from the date they were made. Other jurisdictions place a limit on the amount of the estate which can be thus orally bequeathed, running from thirty to one thousand dollars. If the amount bequeathed is greater than is allowed by the statute, the will is void only as to the excess.^^ § 170. Nuncupative Wills Operate Only on Personal Property. In the opening chapters of this work it is shown how the power of devising real property disappeared under feudalism but was restored to a large extent by the stat- ute of 32 Hen. VIII, ch. 1, explained by the statute of 34 Hen. VIII, ch. 5, such dispositions, however, being required to be in writing. After various changes there was enacted the Statute of Frauds, 29 Charles II, ch. 3, which required all devises of lands not only to be in writing, but to be subscribed by the testator and attested by witnesses. The Statute of Frauds did not require wills of personal property to be in writ- ing, but imposed many restrictions on such bequests. This statute has been adopted, in one form or another, in practically every one of the United States and it may be said to be a universal rule that no transfer or devise of real property is valid unless the same be in writing. The English Statute of Wills of 1 Vict., ch. 26, required all wills to be in writing whether affecting real or personal property, with the exception of the testa- ments of soldiers in actual military service and mariners and seamen at sea, the classes just mentioned being al- 17 Mulligan T. Leonard, 46 Iowa 692. 192 COMMENTABIES ON THE LAW OF WILLS. lowed to dispose of their personal estates by oral testa- ment as they might theretofore have done. This right was limited by the statute to personal property. In the various states, whether the law of wills has been founded upon the Statute of Frauds or the Statute of Wills of 1 Vict., ch. 26, it is the universal rule that an oral will of real property is invalid unless local statutes in special cases allow it to so operate;^* and where the statute declares that one may so dispose of property, the term is construed to extend to personalty only.^* § 171. Incomplete Testamentary Writings, Prior to the Statute of Wills, Were Held Effective as Nuncupative Wills of Personalty. Prior to the Statute of Wills of 1 Vict., ch. 26, and the American statutes, which require the same formalities in the execution and attestation of wills of personalty as in devises of realty, the courts allowed imperfectly exe- cuted testamentary writings to take effect as nuncupative dispositions of personalty, where it appeared that the testators intended them to operate in the form in which they were found, and that the failure to completely exe- cute them arose from some reason other than a purpose to abandon.^" Thus such writings have been held effective where execution was delayed merely from habits of pro- is 4 Kent Com. *503,*5i6; pierce N. W. 197; Moffett V. Moffett, 67 V. Pierce, 46 Ind. 86; Palmer v. Tex. 647, 4 S. W. 70. As to the Palmer, 2 Dana (Ky.) 390; Maurer provisions of tlie Statute ot V. Reifschnelder, 89 Neb. 673, Ann. Frauds, see, ante, §§ 165, 166. Cas. 1912C, 643, 132 N. W. 197; 20 Read v. Phillips, 2 Phillim. Smith V. Smith, 64 N. C. 52; In re 122; In re Francis Lamb, 4 Notes Garland's Will, 160 N. C. 555, 76 of Cas. 561; Nutt v. Nutt, 1 Freem. S. B. 486; Ashworth v. Carleton, Ch. (Miss.) 128; Ex parte Henry, 12 Oh. St. 381. 24 Ala. 638; Brown v. Tilden, 5 19 Maurer v. Reifschnelder, 89 Har. & J. (Md.) 371; Devecmon v. Neb. 673, Ann. Cas. 1912C, 643, 132 Devecmon, 43 Md. 335; Watts v. NUNCUPATIVE WILLS. 193 crastination and sudden deatli from apoplexy ensued,^* or where execution was prevented by bodily weakness,** or duress,** or sudden incapacity,** or supervening men- tal inability or insanity,*' and in general, wherever it was rendered impossible by the so-called act of God.** So also instructions for making a will, reduced to writing by an attorney, or a draft prepared in conformity with the testator's intentions, have been held entitled to probate where the completion of the instruments was prevented by sudden death, incapacity, etc.,*'' and the writings were proved to contain the final intentions of the de- ceased,*^ the continuance of such intentions being essen- Publlc Admr., 4 Wead. (N. Y.) 168; Gaskins v. Gaskins, 3 Ired. (25 N. C.) 158. 21 Warburton v. Burrows, 1 Addams Bcc. 383. 1 22 Thomas v. Wall, 3 Philllm. 23. 23 L'Huille V. Wood, 2 Lee Ecc. 22. 24 Lamkin v. Babb, 1 Lee Ecc. 1. ' 25 Hoby V. Hoby, 1 Hagg. Ecc. 146; Guthrie v. Owen, 2 Humph. (Tenn.) 202, 36 Am. Dec. 311. i 26 Scott V. Rhodes, 1 Phillim. 12; In re James Taylor, 1 Hagg. Ecc. 641; Masterman v. Maberly, 2 Hagg. Ecc. 235. 27 Castle V. Torre, 2 Moore P. C. C. 133; Goodman v. Good- man, 2 Lee Ecc. 109; Robinson v. Chamberlayne, 2 Lee Ecc. 129; In re Bathgate, 1 Hagg. Ecc. 67; Huntington v. Huntington, 2 Phil- lim. 213; Sikes v. Snaith, 2 Phillim. 351; Lewis v. Lewis, 3 Phillim. 109; Allen v. Manning, 2 Addams Ecc. 490; Boofter v. I Com. on Wills — 13 Rogers, 9 Gill (Md.) 44, 52 Am. Dec. 860; Parkison v. Parkison, 12 Smedes & M. (Miss.) 672; Phoebe V. Boggess, 1 Gratt. (Va.) 129, 42 Am. Dec. 543; Mason v. Dunman, 1 Munf. (Va.) 456. Where the memorandum was in the form of answers to questions, see Green v. Skipworth, 1 Phillim. 53. Where an incomplete memoran- dum may be admitted to probate, the testator having suddenly died, see Boone and Newsam v. Spear, 1 Phillim. 345; Read v. Phillips, 2 Phillim. 122; Musto v. Sutcliffe, 3 Phillim, 104; Nathan v. Morse, 3 Phillim. 530. 28 In re Heme, 1 Hagg. Ecc. 222; In re Robinson, 1 Hagg. Ecc. 643; Bragge v. Dyer, 3 Hagg. Ecc. 207; Elsden v. Elsden, 4 Hagg. Ecc. 183; Gillow v. Bourne, 4 Hagg. Ecc. 192; Theakston v. Marson, 4 Hagg. Ecc. 290; Abbott v. Peters, 4 Hagg. Ecc. 380; Walker v. 194 COMMENTARIES ON THE LAW OF WILLS. tial to their vitality.^' But the courts always viewed such instruments with suspicion*" and, in proportion to the incompleteness of the document, demanded a higher degree of evidence.*^ An incomplete paper remaining in the custody of the testator raised a presumption of some further intention in regard to it and, before the court would recognize its testamentary character, this pre- sumption had to be overcome.'^ But the more modern doctrine is that a nuncupative will can be made only by spoken words or by signs and that, if the words be re- duced to writing by the testator or by some one else at his request, they lose their nuncupative character.** And Walker, 1 Mer. 503; Roose v. Moulsdale, 1 Addams Bcc. 129; Beaty v. Beaty, 1 Addams Ecc. 154. 29 Boofter v. Rogers, 9 Gill (Md.) 44, 52 Am. Dec. 860; Brown v. Shand, 1 McCord (S. C.) 409; Pub- lic Admr. v. Watts, 1 Paige (N. Y.) 347. 30 Wood V. Medley, 1 Hagg. Ecc. 645; Reay v. Cowcher, 2 Hagg. Ecc. 249; Ex parte Henry, 24 Ala. 638; Frierson v. Beall, 7 Ga. 348; Plater v. Groome, 3 Md. 96, 134; Jones V. Key, 4 Dev. (N. C.) 301; Beaty t. Beaty, 1 Addams Ecc. 154; Montefiore v. Montefiore, 2 Addams Ecc. 354. 31 Harris v. Bedford, 2 Phillim. 177; Stewart v. Stewart, 2 Moore P. C. C. 193; Theakston V. Marson, 4 Hagg. Ecc. 290. 32 Harris v. Bedford, 2 Phillim. 177; Beaty v. Beaty, 1 Addams Ecc. 154; Doker v. Goff, 2 Addams Ecc. 42. 33 Stamper v. Hooks, 22 Ga. 603, 68 Am. Dec. 511; Ellington v. Dil- lard, 42 Ga. 361; Godfrey v. Smith, 73 Neb. 756, 10 Ann. Cas. 1128, 103 N. W. 450; In re Hebden's Will, 20 N. J. Bq. 473; Kennedy v. Douglas, 151 N. C. 336, 66 S. E. 216; Porter's Appeal, 10 Pa. St. 254; Wiley's Estate, 187 Pa. St. 82, 67 Am. St. Rep. 569, 40 Atl. 980; Butler's Estate, 223 Pa. St 252, 72 Atl. 508; Mundhall's Estate, 234 Pa. St. 169, 83 Atl. 66; Hunt V. White, 24 Tex. 643; Reese v. Hawthorn, 10 Gratt (Va.) 548; Brown v. State, 87 Wash. 44, 151 Pac. 81. See, also, citations note 34, post. At the present time in the Dis- trict of Columbia the law will not admit informal instruments to probate. In referring to the rule prior to such time, the court said, in effect, "that an incomplete and unsigned will or memorandum, to be admitted to probate, as a will of personal property, must have been intended to have operated as a will in its then state, or if In- NUNCUPATIVE WILLS. 195 it seems that under the modern statutes and rulings, even verbal instructions for drawing up a written will, although spoken in the presence of the proper number of witnesses, can not be admitted to probate as a nun- cupative will.** §172. The Same Subject: Wills of Soldiers and Sailors, In- formally Executed, May Be Admitted to Probate. The wills of the privileged classes — soldiers in actual military service and mariners and seamen at sea — exe- cuted in an informal manner and lacking the formalities tended as a memorandum for a formal will, the testator must have been prevented from carrying out his Intention through sickness, death or some other casualty and there must have been a contin- uance of such intention down to the time of death." — Cruit v. Owen, 21 App. D. C. 378. In Butler's Estate, 223 Pa. St. 252, 72 Atl. 508, where a draft of the will had been drawn up, but was not signed, it was rejected, the court saying: "The evidence shows that while he was unable to sign personally, he was not in such an extremity as to prevent him from calling on another to sign for him." See, also, Mund- hall's Estate, 234 Pa. St. 169, 83 Atl. 66. Porter's Appeal, 10 Pa. 254, was a case where the decedent de- clared his Intentions to a scrivener who noted them in writing at the time and in the presence of the decedent, who called upon the two persons present to witness that that was his will, yet it was held not a valid nuncupative will be- cause the testator had in contem- plation a will to be put in writing. 34 Knox V. Richards, 110 Ga. 5, 35 S. B. 295; In re Grossman, 75 111. App. 224; In re Grossman, 175 111. 425, 67 Am. St. Rep. 219, 51 N. E. 750; Donald v. Unger, 75 Miss. 294, 22 So. 803; Dockum v. Robinson, 26 N. H. 372; In re Hebden's Will, 20 N. J. Eq. 473; In re Male's Will, 49 N. J. Eq. 266, 24 Atl. 370. See, also, citations note 33. "It must be proved that the deceased, while uttering the words offered as a will, had not only a present testamentary intention, but also an intention to make an oral will, and that he intended the words he then uttered and no oth- ers should constitute his will. If he only gives instructions for a will that he desires to have re- duced to writing, but fails to exe- cute, the instructions can not be sustained as a nuncupative will." 196 COMMENTARIES ON THE LAW OF WILLS. essential to the validity of wills of those in the ordinary- pursuits of life, have been looked upon with favor and have been accepted for probate as having expressed the final intent of a privileged testator regarding the dispo- sition of his personal property after his death. Letters and entries in books have been admitted to probate, it being of course necessary in all cases that the instru- ment be testamentary in character, that is, showing an intention on the part of the maker to dispose of his property after his death. Thus, a letter dated January 28, 1839, less than two years after the passage of the Statute of Wills of 1 Vict., ch. 26, written by a lieutenant in the army who died while stationed abroad with his regiment, addressed to his solicitor, but unattested, was admitted to probate as a military testament.*^ The letter of the master of a merchant vessel who died at sea, was admitted as the testament of a mariner under section 11 of the Statute of Wills.*^ Likewise, entries made by the master of a vessel, in a book wherein he entered any particular occurrence that took place during his voy- ages, to the effect that if anything should happen to him his wife should have everything he possessed, he having died at Valparaiso, during a voyage, were admitted to probate.^'' A testamentary instrument, executed by an —Godfrey v. Smith, 73 Neb. 756, proof of the Identity of the paper, 10 Ann. Cas. 1128, 103 N. W. 450. the witnesses being dead. In 35 Goods of Phipps, 2 Curt. 368. Goods of Spratt. (1897) P. 28, a In Goods of Prendergast, 5 Notes ^^"er by a military officer in actual military service was held good as a military will. „ , „ 36 Goods of Milligan, 2 Rob. Ecc. Company which was officially re- ipg. Q^^^g ^^ ^^^^^^^ ^ g^ ^ ^^ turned to England after his death, 375 ggg^ ^Iso, Goods of Lay, 2 was admitted to probate, although Curt. 375. it was signed only by the mark of 37 Goods of Thompson, 5 Notes the testator and there was no of Cas. 596. of Cas. 92, the letter of a gunner in the service of the East India NUNCUPATIVE WILLS. 197 army officer before embarking for India, witbout attesta- tion clause or proof tbat the witnesses were present at the time of execution, but referred to in a codicil duly made and attested on the voyage, was held to be incorpo- rated as a part of his will, especially for the reason that he was a soldier in actual military service.^* The irnat- tested codicil of the purser of a vessel was admitted.^* The letter of a soldier en route to South Africa, reading as follows: "In case anything happens to me I wish the whole of any property I may leave or become entitled to to be left to Doris," was held a valid military testa- ment;*" likewise the letter of a sergeant in the army to his fiancee, in which he stated that if anything should happen to him, she was to have everything, was allowed for probate.*^ §173. The Terms "Soldiers" and "Seamen" Include OflBcers and All Degrees. Although the excepted or privileged classes are desig- nated as "soldiers," "mariners," and "seamen," yet the exception applies to the officers as well as to the men and includes those in all degrees of the ser- 38 Goods of Johnson, 2 Curt. 341. 4o Goods of Cory, (1901) 84 L. T. 39 Goods of Hayes, 2 Curt. 338. Rep. 270. See, also. Goods of Thome, 29 Jur. 4i Goods of Gordon, (1905) 21 569; Goods of Donaldson, 2 Curt Times L. R. 653. 386; Gould v. SafEord, 39 Vt. 498; In the Matter of Anderson's Es- Van Deuzer v. Gordon, 39 Vt 111; tate, (1916) P. 49, an informal doc- Leathers V. Greenacre, 53 Me. 561; ument of a member of an ambu- Botsford V. Krake, 1 Abb. Pr. N. S. lance corps was rejected solely on 112. the ground that at the time it was In Goods of Scott, (1903) P. 243, written he was not in actual mill- the declaration of a soldier that all tary service; no objection, how- his effects should be credited to ever, was raised as to the form of his sister was held a good military the instnmient as a military testa- will, ment. 198 COMMENT ABIES ON THE LAW OP WILLS. vice. In an early case,*^ Sir Herbert Jenner referred to the case of Earl of Euston v. Lord Henry Sey- mour, under the twenty-third section of the Statute of Frauds, and, quoting from the notes of Sir Wil- liam Wynn, said: "It was 'the inclination of the mind' to hold that the term 'mariner' or 'seamen' included the whole profession, 'because he did not know where to stop.' Some reasons assigned for the exception (which was not merely to protect illiterate persons), it is said, applied just as well to the com- mander in chief, as to the common seamen; the same sudden emergency might arise to render it necessary for the individual to dispose of his property by word of mouth, in the one case as in the other ; and whilst at sea, one might be inops consilii as well as the other." The exception was early applied to a lieutenant in the army,** and to a surgeon in the employ of The East India Com- pany.** The master of a vessel is included in the term "seamen,"*® likewise the purser of a boat,*® the mate,*'' or the cook.** § 174. Question as to Whether Soldiers and Seamen Have an Unqualified Right to Make Nuncupative Wills. It has been questioned both in regard to soldiers in service and mariners and seamen at sea, whether their 42 Goods of Hayes, 2 Curt. 338. 45 Goods of Mllligan, 2 Rob. Ecc. 43 Goods of Phipps, 2 Curt. 368. 108; Goods of Thompson, 5 Notes See, also. Goods of Johnson, 2 of Cas. 596; Goods of Parker, 2 Curt. 341; Goods of Gordon, (1905) g-^y, & Tr. 375. 21 Times L. R. 653; Stopford v. ,„ „ j' ^ ^^ Stopford, 19 Times L. R. 185. „ " ^°°^^ °^ H^^^^' 2 Curt. 338. 44 Goods of Bonaldson. 2 Curt. ^^^' ^''°' ^°"«" ''• Worrell. 1 386. See, also. Shearman v. Pyke, ^^^S. Ecc. 51. cited in Drummond v. Parish, 3 *t Goods of Lay, 2 Curt. 375. Curt. 522, at p. 539; Goods of 48 Ex parte Thompson, 4 Bradf. Spratt, (1897) P. 28. (N. Y.) 154. NUNCUPATIVE WILLS. 199 right to make oral testaments is iinqiialified, or whether it is to be exercised only in cases of imminent peril. The Avills of these privileged classes mnst be distinguished from oral testaments which may be made by those in civil life, for the latter testaments are never allowed ex- cept the testator be in his last sickness. As to soldiers and sailors, there are times when they are surrounded by imminent dangers ; often they have neither the time nor the opportunity to execute a formal written will ; again, they may be without legal counsel and therefore unable to prepare a testamentary document according to the usual formalities. An individual in the ordinary walks of life can make a nuncupative will, if at all, only in his last sickness. A soldier or a sailor can make an oral testament while in the best of health, therefore sickness is not the criterion; even in the field he may have some friend at hand who could give him the necessary legal ad- vice for preparing a written will, so lack of legal counsel can not be controlling. He may be at home on a furlough, exposed to no dangers that are not common to all others, and with the time and opportunity to execute a formal testamentary document. Therefore, oral testaments of soldiers are allowed only when in actual military service, and of mariners and seamen only when at sea. The rule is that if a soldier or seaman comes within the exceptions mentioned, his oral testament of personal property is valid, but the authorities which have interpreted the meaning of the excepted conditions show that such wills are allowed only when the soldier or the sailor is con- fronted Avith the perils of war or of the elements, with the consequent apprehension of death. Their calling, how- ever, gives them additional testamentary powers as, for instance, a passenger on a vessel at sea can not make a 200 COMMENTARIES ON THE LAW OP WILLS. mincupative will. Soldiers and seamen are under orders, their time is commanded by others ; in the event of dan- gers they protect life and property at their own peril. Therefore, it may be said that oral testaments of soldiers and sailors are allowed because of the nature of their un- dertakings, but only at such times when the circumstances may be said to produce an extreme case.** §175. Soldiers in Actual Military Service Are Those on an Expedition. Section 11 of the Statute of Wills, 1 Viet., ch. 26, is as foUows: "Provided always, that any soldier being in actual military/ service, or any mariner, or seaman being at sea, may dispose of his personal estate as he might have done before the making of this act." This was a clear recognition of the right of the classes mentioned to dispose of personalty by oral testaments in the same manner as theretofore. Since such right was founded upon the civil law, the words "in actual military service," should be construed according to the meaning given them 49 Drummond v. Parish, 3 Curt, determining the effect of certain 522; White v. Repton, 3 Curt. 818; utterances made by a mariner at Goods of Hill, 1 Rob. Ecc. 276; sea and while ill, the court says: Leathers v. Greenacre, 53 Me. 573 ; "The finding must, therefore, be Prince v. Hazleton, 20 Johns, either that he thought he was (N. Y.) 502, 11 Am. Dec. 307; Hub- making a vain and useless utter- bard V. Hubbard, 12 Barb. (N. Y.) ance or that he invested his act 148. with all the solemnity and purpose Compare: Taylor v. lyEgville, of a will. Sickness may not be 3 Hagg. Ecc. 202; Bragge v. Dyer, necessary to the validity of the 3 Hagg. Ecc. 207; King's Proctor transaction, but it affords ground V. Daines, 3 Hagg. Ecc. 218; Goods for believing that the act, which of Hiscock, (1901) P. 78; Gattward might not have had a testamen- V. Knee, (1902) P. 99; Weir v. tary meaning if done in health, Chidester, 63 111. 453. assumed the gravity and signifl- In re O'Connor's Will, 65 Misc. cance of a will when done by one Rep. 403, 121 N. Y. Supp. 903, in who confronted death." NUNCUPATIVE WILLS. 201 under the Eoman law, and there they have been held to apply only to soldiers who were on an expedition.^'^ § 176. When Is a Soldier on an Expedition? Illustrations. Under the Eoman law a soldier who was engaged in doing something toward fighting an enemy was considered as being in expeditione. If a state of war does not exist, however, can it be said that there is an enemy? A soldier in the time of peace has practically the same opportunity of making his will as has a civilian. But should a state of war exist, the question then is, Has the soldier taken any steps toward joining the forces in the field? In the case of an invasion or civil war, leaving his home to guard defenses has been said to constitute being in actual miU- 50 Drummond v. Parish, (1843) 3 Curt. 522; White v. Repton, 3 Curt. 818; Goods of Hiscock, (1901) P. 78; Gattward v. Knee, (1902) P. 99. "There be three sorts of men •which be termed in law by the name of soldiers. The first be milites armati, armed soldiers. The second be milites literaril, lettered soldiers, as Doctors of the Law. The third sort are milites coelestes, celestial or heavenly sol- diers, as clergymen and divines: For so the law doth term them. Concerning the first sort, either they be such as lie safely in some castle or place of defence, or be- sieged by the enemy, only in readi- ness to be employed in case of Invasion or rebellion; and then they do not enjoy these military privileges: or else they be such as are in expedition or actual service of wars; and such are privileged, at least during the time of their expedition, whether they be em- ployed by land or by sea, and whether they be horsemen or foot- men. Concerning the other two sorts of soldiers, many are of this opinion, that they do not enjoy the aforesaid privileges, because they are not soldiers properly so called, but metaphorically. Others are of a contrary opinion, affirm- ing that the great pains and stu- dious travel of learned lawyers (especially Doctors of Law and such like) are no less beneficial to their country, than the hardy adventures of those armed sol- diers." — Swinburne, Wills, pt. 1, § 14, p. 63. "Let it not here escape our ob- servation, that these privileges be- long only to such soldiers as are in expedition, or actual service of 202 COMMENTARIES ON THE LAW OP WILLS. tary service.^^ Likewise, where a minor had volunteered for active service in South Africa and had received his orders to embark and, having gone into barracks for the purpose of being drafted, but before sailing, he made an oral will, it was said he was within the exception men- tioned in section 11 of the Statute of Wills.^^ And where an order has been issued for the mobilization of troops, war, and not to sucli as lie safely and securely in some castle, gar- rison or other like place of defense." — Godolphin, in the Or- phan's Legacy, oh. 5, p. 16. In Louisiana the term "nuncu- pative testament" is given to a written testamentary instrument executed according to certain pre- scribed formalities, the law rela- tive to wills of soldiers being taken almost literally from the Code Napoleon, and is found in the Louisiana Civil Code, arts. 1597- 1600. The will of a soldier in the field or on a military expedition may be received by a commis- sioned ofiacer in the presence of two witnesses; or If he be sick or wounded, it may be received by the physician or surgeon attending him, assisted by two witnesses. Such a testament is subject to no other formalities, but it must be reduced to writing and signed by the testator, if he can write, and by the person receiving it, and by the witnesses. It becomes void six months after the testator has returned to a place where he has an opportunity to make a will in the ordinary manner. See, also, Code Napoleon, 981, 982. 61 Goods of Hiscock, (1901) P. 78; Van Deuzer v. Gordon, 39 Vt. 111. 52 Goods of Hiscock, (1901) P. 78. In Goods of Phipps, 2 Curt. 368, a letter dated Jan. 28, 1839, writ- ten by a lieutenant while stationed abroad with his company, although unattested, was admitted to pro- bate. It was proposed by the father of the deceased, who, had there been no will, would anyway have been entitled to the estate, this fact being mentioned as a reason for accepting the informal document as a soldier's will. In deciding the case. Sir Herbert Jen- ner said: "I am not prepared to say that our regiments in the col- onies, or In garrison at home, are In actual military service. I can't think that It was the intention of the legislature to except every officer, under the circumstances, from the operation of the act. Under the peculiar circumstances of this case, considering that the party deceased was with his regi- ment, and In the opinion of the War Office, in actual military ser- vice at the time, I shall allow this letter to pass." NUNCUPATIVE WILLS. 203 although an enlisted soldier may have done nothing under it, yet, according to an English authority, the order may be said to have so altered his position as to practically place him in expeditione.^^ In a leading American case, however, the court uses language to the effect that the oral testament of a soldier mustered into service, but made while he remained in barracks or while quartered at some permanent military station and where he was not exposed to attacks by the opposing foe and also before he had, under orders, started to move against the enemy, would not be entitled to probate.^* § 177. The Same Subject. The term "expedition" is not confined to that move- ment of troops which immediately precedes the shock of battle.''* If the testator, being a soldier, be in that part of the country where active operations are con- 53 Gattward v. Knee, (1902) P. in South Africa, was held good as 99. See, also. Goods of Thome, a military testament. 29 Jur. 569; Stopford v. Stopford, In Goods of Gordon, (1905) 21 19 Times L. R. 185; Goods of Gor- Times L. R. 653, a sergeant in the don, 21 Times li. R. 653. army, stationed at Woolwich, re- in the matter of the Estate of ceived orders to report and pro- Anderson, (1916) P. 49, a member ceed to South Africa. While still of the ambulance corps was about in quarters he made a nuncupative to leave his home under orders to will, in the form of a letter. It join H. M. S. Pembroke, perma- was held valid as a military testa- nently stationed at Chatham. At ment. his home, on the morning of his Compare: Leathers v. Greenacre, departure, he wrote an informal 53 Me. 561; Van Deuzer v. Gordon, document disposing of his prop- 39 Vt. 111. erty. It was held he was not 54 Leathers v. Greenacre, 53 Me. within the exception of the statute. 573. See, also, Estate of Ander- In Stopford v. Stopford, 19 son, (1916) P. 49; Van Deuzer v. Times L. R. 185, a letter written Gordon, 39 Vt. 111. by an officer in barracks, on the B5 Leathers v. Greenacre, 53 Me. day he was departing for service 573. 204 COMMENTARIES ON THE LAW OP WILLS. stantly going on, unquestionably he can make Ms oral testament while in camp ; and if soon after he goes on a raid, is captured and dies in prison, probate will be allowed.^^ One who is taken sick while on the march and is ordered for treatment to a field hospital near the scene of operations, is in actual military service.^'' It is immaterial whether the expedition be invading the country of the enemy, or whether it be quelling an insur- rection in the home state of the testator.^^ § 178. When Does a Military Expedition Begin or End? All soldiers are not considered as being in actual mili- tary service. Since a soldier may make an oral testament only while on a military expedition, the question is, When does such expedition begin and when does it end? A soldier at home on a furlough can not make a nuncupa- tive will.^* It is generally conceded that a soldier at home, although under orders to join his company and proceed against the enemy, is not in actual military service.®" In England, if he has gone into barracks preparatory to 56 Goods of Hlscock, (1901) P. tion,' and, in our judgment, he was 78; Van Deuzer v. Gordon, 39 Vt. as much on that expedition while 111. in the hospital tent as when he 57 Leathers t. Greenacre, 53 Me. was in his own tent with his com- 573. See, also, Botsford v. Krake, pany." In this case the testator 1 Abb. Pr. N. S. 112. was in a field hospital close to the 58 Gould V. Safford, 39 Vt. 498. scene of operations, which caused In the foregoing case the court the court to remark: "He was in said: "He could not be considered the presence of actual war, and as absent on a furlough, for he was surrounded by perils." had no leave of absence from mill- B9 Will of Smith, 6 Phila. (Pa.) tary service, and he remained be- 104. hind in obedience to an order. The 6o Estate of Anderson, (1916) entire army to which he belonged P. 49; Van Deuzer v. Gordon, 39 was at that time on an 'expedi- Vt. 111. NUNCUPATIVE WILLS. 205 leaving for the field of war, lie is within the exception,®^ but the American rule is not so broad, some movement toward taking part in the hostilities being necessary, although the extent of such movement has never been clearly defined.®* In an early English case it was held that an officer in the army stationed at home and dying there in 1843, was not in actual military service."* This rule was affirmed very shortly afterwards in a case wherein the will of a captain in the army quartered in barracks at St. Johns, New Brunswick, was rejected on the ground that the deceased was not within the exception of the eleventh section of the Statute of Wills; it being there held that there was no distinction between death in a colony and at home.®* The same rule was again fol- lowed in a subsequent case wherein it was ruled that an officer with his headquarters and residence in India, who died on a tour of inspection of his command, was not privileged to make an excepted military testament."^ In an early American case it was held that the nuncupative will of a soldier who, having enlisted, still remained in the camp with his regiment in the state where it was raised, was invalid; but if, afterwards, in the enemy's country and actually exposed to the dangers of warfare, he should adopt the will previously made, it could be admitted to probate.*® 61 Goods of Hiscock, (1901) P. e* WUte v. Repton, 3 Curt. 818. 78; Gattward v. Knee, (1902) 65 Goods of Hill, 1 Rob. Ecc. 276 P. 99; Stopford v. Stopford, 19 (1845). See, post, §179 and note Times L. R. 185; Goods of Gordon, 65 as to the will of a naval officer (1905) 21 Times L. R. 653. being denied probate under like 62 Van Deuzer v. Gordon, 39 Vt. circumstances. 111. See language of court in 66 Van Deuzer v. Gordon, 39 Vt. Leathers v. Greenacre, 53 Me. 561. 111. 63 Drummond v. Paris, 3 Curt. In Leathers v. Greenacre, 53 Me. 522. 561, the court uses this language: 20G COMMENTARIES ON THE LAW OF WILLS. § 179. Manners and Seamen at Sea. As before stated, the terms "mariner" and "seamen" include all persons in naval or mercantile service.*''^ A passenger, however, can not make a nuncupative will as a mariner at sea, even though he be a mariner by voca- tion en route to his own ship.^* But in opposition to this, it has been held that a letter written by an invalid sur- geon returning home on board the regular line of steam- ers, might be admitted to probate as the will of a seaman made at sea.®^ In legal parlance, waters within the ebb and flow of the tide are considered the sea; so the cap- tain of a vessel during a voyage, while lying at anchor in an arm of the sea, may make a nuncupative will/" In England, a mariner serving on board a public ship per- manently stationed in harbor, was held to be "at sea" -within the meaning of the statute.'^^ And the mate of a ship, ashore on leave in a foreign port, who received a severe fall and died of his injuries without having been taken back to his ship, was held to be within the excep- tion.'^^ But the commander of a naval force at Jamaica, "Doubtless if Leathers had written that it Is not entitled to probate this letter after he had been mus- as such." tcred Into the service of the United 67 See, ante, § 173 and notes. States, but while he remained in 68 Warren v. Harding, 2 R. I. barracks at Augusta, or while thus 133. quartered at any permanent mill- 69 In re Saunders, 11 Jur. N. S. tary depot or station In one of the 1027; s. c, L. R. 1 P. & D. 16. loyal states not exposed to the 70 Hubbard v. Hubbard, 8 N. T. incursions of the enemy, before he 199. had crossed over into Virginia 7i In re McMurdo, L. R. 1 P. & with his regiment to take part in D. 540. the hostilities existing there, and 72 Goods of Lay, 2 Curt. 375. before he had begun to move In Goods of Austen, 2 Rob. Ecc. under military orders against the 611, It was held that an admiral of foe, we should feel bound to say the navy engaged in an expedition that this was no valid will and up a river and entirely inland, was NUNCUPATIVE WILLS. 207 who lived at his official residence on the island, could not be construed to be "at sea."''* § 180. In Some Jurisdictions, Any Qualified Person May, Under Certain Restrictions, Make a Nuncupative Will. In some jurisdictions, in addition to soldiers and sail- ors, any one qualified to make a written will may, under certain restrictions, make a nuncupative testament. '^^ These restrictions were originally imposed by the Statute of Frauds,''^ but oral wills, except of soldiers and seamen, as before noted, were abolished by the Statute of Wills in England.^® In some of the United States, nuncupative testaments are allowed under conditions practically the nevertheless practically engaged in maritime service. 73 Earl of Euston v. Lord Henry- Seymour, cited in 2 Curt. 338. See, ante, § 178 and notes, as to the will of officers in the army being denied probate under similar circumstances. In Louisiana the term "nuncu- pative testaments" is applied to written testamentary instruments executed according to prescribed formalities. Wills of mariners and seamen at sea are separately pro- vided for (Louisiana Civil Code, arts. 1601-1604), the rules being taken almost literally from the Code Napoleon. Testaments made during a voyage at sea are re- ceived by the master of the vessel in the presence of three witnesses taken by preference from among the passengers; If no passengers, then from among the crew. Such a testament made at sea can make no disposition in favor of any per- son employed on board the vessel unless he be a relative of the testator. It is subject to no other formality, but must be reduced to writing and be signed by the testa- tor, if he can write, by the party receiving it, and by the witnesses. Such a testament shall not be valid unless the testator dies at sea or within three months after he has landed in a place where he can make his will in the ordinary manner. See, also. Code Napoleon, §§ 985, 987, 988, 995, 996. 74 See, ante, § 163, as to the definition given by early writers of nuncupative wills. 75 29 Charles II (A. D. 1677). See, ante, §§ 165, 166, as to the provisions of the Statute of Frauds affecting oral testaments. 76 1 Vict., ch. 26. See, ante, § 168, as to the effect of the Statute of Wills on oral testaments. 208 COMMENTAEIBS ON THE LAW OF WILLS. same as those set forth in the Statute of Frauds J'' Where the law sanctions oral wills of persons not included in the excepted classes — soldiers and seamen — ^it almost uni- versally provides that they shall not be valid unless made in the last sickness of the deceased, in the house of his habitation or dwelling, or where he has been a resident for ten days or more next preceding the making of his will, except where such person, being absent from home, was surprised by sickness and died before returning to his place of dwelHngJ^ § 181. Meaning of the Term "Last Sickness"— In Extremis. The meaning of the term "last sickness," as applied to the maker of a nuncupative testament, is not well set- tled. The majority of the cases construe it as equivalent of being in extremis, and to denote the sudden and severe illness immediately preceding physical dissolution, when there is neither time nor opportunity to make a written will,''* or when supervening physical or mental incapacity 77 See, ante, § 169, as to the law ton, 20 Jolins. (N. Y.) 502, 11 Am. of wills of some states being based Dec. 307; Hubbard v. Hubbard, 12 on the Statute of Frauds, of others Barb. (N. Y.) 148; Kennedy v. on the Statute of Wills. Douglas, 151 N. C. 336, 66 S. E. 78 29 Charles 11, ch. 3, § 19 (Stat- 216; Yarnall's Will, 4 Rawle (Pa.) ute of Frauds). 46, 26 Am, Dec. 115; Boyer v. 79 Scaife v. Emmans, 84 Ga. 619, Frlck, 4 Watts & S. (Pa.) 357; 20 Am. St. Rep. 383, 10 S. E. 1097; Werkhelser v. Werkheiser, 6 Watts Bellamy v. Peeler, 96 Ga. 467, 23 & S. (Pa.) 184; Haus v. Palmer, S. E. 387; Harp v. Adams, 142 Ga. 21 Pa. St. 296; Rutt's Estate, 200 5, 82 S. E. 246; Mulligan v. Leon- Pa. St 549, 50 Atl. 171; Butler's ard, 46 Iowa 692; Baird v. Balrd, Estate, 223 Pa. St. 252, 72 Atl. 508; 70 Kan. 564; O'Neill v. Smith, 33 Mundhall's Estate, 234 Pa. St 169, Md. 569; Sadler v. Sadler, 60 Miss. 83 Atl. 66; In re Connaughton'a 251; Godfrey v. Smith, 73 Neb. Will, 11 Pa. Co. Ct. Rep. 460; 756, 10 Ann. Cas. 1128, 103 N. W. Jones v. Norton, 10 Tex. 120; Mof- 450; Carroll v. Bonham, 42 N. J. fett v. MofCett, 67 Tex. 642, 4 S. W. Eq. 625, 9 Atl. 371; Prince v. Hazle- 70; Martinez v. Martinez, 19 Tex. NUNCUPATIVE WILLS. 209 renders it afterwards impossible.®" Probate of mrncupa- tive wills has been refused where the testator did not die until two months later ;®^ and in other cases where he Civ. App. 661, 48 S. W. 532; Reese V. Hawthorn, 10 Gratt. (Va.) 548; Brunson v. Burnet, 2 Finney (Wis. 185) 136. In the recent case of Harp v. Adams, 142 Ga. 5, 82 S. B. 246. the following instruction was held good, although the case was re- versed on other grounds. The in- struction reads: "In testing the validity of an alleged nuncupative will, it is impossible to lay down a fixed and unvarying rule as to what length of time may elapse between the dictation of said will and the death of the testatrix. The test to be applied is not one of time alone. The length of time must be considered in connection with and in the light of all the circumstances surrounding the oc- casion. After all, it is a question of fact to be determined by the jury whether or not, under the circumstances, there was a rea- sonable opportunity to make a written will. A nuncupative will must be made In the last sick- ness, and it is allowed under the law from necessity, and must be in extremis, and if you believe that Mrs. H., after making the alleged nuncupative will, had the time and opportunity, and means at hand, to have reduced it to writing, but failed to do so, then said alleged will is invalid." 80 In re Corby, 29 Eng. L. & Bq. 604; Sampson v. Browning, 22 Ga. 293; Huse v. Brown, 8 Me. 167; Sadler v. Sadler, 60 Miss. 251; Rouse V. Morris, 17 Serg. & R. (Pa.) 331; Gwin v. Wright, 8 Humph. (Tenn.) 639. In the leading case of Prince v. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307, the court said: "The statute was never meant to uphold oral wills made when there was no immediate apprehension of death and no inability to reduce the will to writing. A case of necessity is the only case in which any favor ought to be shown them. If they have been made in a case unaccompanied with necessity, the presumption of fraud attaches. Some diseases continue for months, sometimes for years. If nuncupa- tive wills can be permitted at aJl. in the case of chronic disorders, which make silent and slow, but sure and fatal approaches, it is only in the very last stage or ex- tremity of them. In no other period can such a disorder be deemed, within any reasonable construction of the Statute of Frauds, a man's last sickness." 81 Jones V. Norton, 10 Tex. 120. I Com. on Wills — 14 210 COMMENTAEIES ON THE LAW OF WILLS, survived tMrty,^^ nine,*^ six,^* five^® and four days.^* Some decisions go so far as to deny probate to a nuncu- pative will made only one day,^'' or even one hour before death. ^® Oral testaments should be allowed only in the last stage or extremity of sickness, where death is ap- proaching, coupled with the physical inability to make a written will. Any other rule would allow the play of, and perhaps excite "the selfish and dark passions of the human mind," for it would be to the interest of a legatee that the sickness of the testator should prove his last, since recovery would revoke the oral testament, whereas a written will could be revoked only by a duly executed writing.** There are, however, good authorities which hold that a nuncupative testament made during the last illness of the deceased is not invalid because he may have had the time, opportunity and capacity to reduce it to writing,*" but the better rule and the weight of authority is other- wise. § 182. Necessity of Calling Others to Witness the Testament. In order to constitute a valid nuncupative testament, the testator must have had, when he declared the same, a present intent to make a will. This intent should be 82 Ellington v. Dlllard, 42 Ga. 87 O'Neill v. Smitli, 33 Md. 569; 361. Werkheiser v. Werkheiser, 6 83 Carroll v. Bonham, 42 N. J. Watts & S. (Pa.) 184. Eq. 625, 9 Atl. 371; Yarnall's Will, 88 Porter's Appeal, 10 Pa. St 4 Rawle (Pa.) 46, 26 Am. Dec. 115. 254. 84 Morgan V. Stevens, 78 111. 287; 89 Prince v. Hazleton, 20 Johns. Prince v. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307. (N. y.) 502, 11 Am. Dec. 307. 9o Johnston v. Glasscock, 2 Ala. 85 Reese v. Hawthorn, 10 Gratt. 218, 242; Harrington v. Stees, 82 (Va.) 548. 111. 50, 25 Am. Rep. 290; Page v. seHaus v. Palmer, 21 Pa. St. Page, 2 Rob. (Va.) 424; Nolan v. 296. Gardner, 7 Heisk. (Tenn.) 215; In NUNCUPATIVE WILLS. 211 distinctly indicated by the testator, either by calling upon some of the persons present to take notice that he is about to make his will, or by some act clearly showing that his words are intended to be testamentary.^^ This re Miller's Estate, 47 Wash. 253, 125 Am. St. Rep. 904, 14 Ann. Cas. 1163, 13 L. R. A. (N. S.) 1092, 91 Pac. 967. 91 Bennett v. Jackson, 2 Phillim. 190; Parsons v. Miller, 2 Phillim. 194; Sykes v. Sykes, 2 Stewt. (Ala.) 364, 20 Am. Dec. 40; Samp- son V. Browning, 22 Ga. 293; Knox V. Richards, 110 Ga. 5, 35 S. E. 295; Smith v. Salter, 115 Ga. 286, 41 S. E. 621; Scales v. Thornton, 118 Ga. 93, 44 S. B. 857; Arnett v. Arnett, 27 111. 247, 81 Am. Dec. 227; Weir v. Chidester, 63 111. 453; Grossman's Estate, 175 111. 425, 67 Am. St. Rep. 219. 51 N. E. 750; Isham V. Bingham, 126 111. App. 513, affirmed 227 111. 634, 81 N. E. 690; Baird v. Baird, 70 Kan. 564, 3 Ann. Cas. 312, 68 L. R. A. 627, 79 Pac. 163; Kelly v. Kelly, 9 B. Mon. (Ky.) 553; Babineau v. Le Blanc, 14 La. Ann. 729; Biddle v. Biddle, 36 Md. 630; Garner v. Lansford, 12 Smedes & M. (Miss.) 558; Lucas v. Goff, 33 Miss. 629; Broach v. Sing, 57 Miss. 115; In re Male's Case, 49 N. J. Eq. 266, 24 Atl. 370; Brown v. Brown, 2 Murph. (N. C.) 350; In re Garland's Will, 160 N. C. 555, 76 S. E. 486; Dockum V. Robinson, 26 N. H. 372; Bund- rick V. Haygood, 106 N. C. 468, 11 S. E. 423; Godfrey v. Smith, 73 Neb. 756, 10 Ann. Cas, 1128, 103 N. W. 450; Meisenhelter's Will, 15 Phila. (Pa.) 651; In re Wiley's Estate, 187 Pa. St. 82, 67 Am. St. Rep. 569, 40 Atl. 980; Ridley v. Coleman, 1 Sneed (Tenn.) 616; Winn V. Bob, 3 Leigh (Va.) 140, 23 Am. Dec. 258; Owen's Appeal, 37 Wis. 68. Compare: Woods v. Ridley, 27 Miss. 119. In Succession of Dauterive, 39 La. Ann. 1092, 3 So. 341, it was said that a witness who is deaf, or who can not understand the language of the will, is intellec- tually deaf, and not a valid wit- ness; that under the Roman, French and Spanish law, knowl- edge of the language in which the will is dictated and taken down Is indispensable to the validity of a will which, to be valid, must be executed in the presence of wit- nesses. In Bundrick v. Haygood, 106 N. C. 468, 11 S. E. 423, where a nuncupative will was rejected be- cause of failure to call witnesses, the court said: "She did not say, in terms or in effect to these wit- nesses, 'I want you — or I charge you — or I require you to bear witness that I give my property to my sister,' naming her. She should have made the witnesses clearly sensible of the fact that she specially required them to so bear witness, so that they might 212 COMMBNTAEIES ON THE LAW OF WILLS. is the rogatio testium, adapted from the civil law. The testator nmst, of course, understand the nature of his act.®^ No set form of words is necessary. Any words, however imperfectly uttered, that convey to the minds of those addressed the idea that the testator desires them to bear witness to the disposition he is making of his prop- erty, will be suflRcient.®* And, though a form be pre- scribed by statute, any words such as, "I wish to make a disposition of my effects," will be deemed a compli- ance with the law.®* Merely looking at the persons pres- ent while declaring one's will has been held not sufSicient in itself, unaccompanied by some word requesting them to bear witness;®^ but indirect remarks, coupled with looks or actions, may satisfy the requirement.®® The words must be spoken when all the witnesses are present; be charged to do so, and to the further end they might be able to so state when called upon to tes- tify as such witnesses." Section 19 of the Statute of Frauds (29 Charles II) reads in part as follows: "No nuncupative will shall be good . . . that is not proved by the oath of three witnesses, at the least, that were present at the making thereof, and bid by the testator to bear witness that such was his will, or to that efCect." 92 Gibson v. Gibson, Walk. (Miss.) 364. 93 Swinburne says: "As for any precise form of words, none is required, neither is it material whether the testator speak prop- erly or improperly, so that hl« meaning appears." — Swinburne, Wills, pt. 4, § 26. Harrington v. Stees, 82 111. 50, 25 Am. Rep. 290; Parsons v. Par- sons, 2 Greenl. (Me.) 298; Parki- son V. Parkison, 12 Smedes & M. (Miss.) 678; Yarnall's Will, 4 Rawle (Pa.) 46, 26 Am. Dec. 115; Baker v. Dodson, 4 Humph. (Tenn.) 342, 40 Am. Dec. 650. 94 Baker v. Dodson, 4 Humph. (Tenn.) 342, 40 Am. Dec. 650. 95 Meisenhalter's Will, 15 Phila. (Pa.) 651. 96 Parsons v. Parsons, 2 Greenl. (Me.) 298; Baker v. Dodson, 4 Humph. (Tenn.) 342, 40 Am. Dec. 650. It is not necessary that the bid- ding of the witnesses should be by word of mouth; It may be by acts or by signs and gestures. See Ar- nett V. Arnett, 27 111. 247, 81 Am. Dec. 227; Hatcher v. Millard, 2 Coldw. (Tenn.) 30; Winn v. Bob, 3 Leigh (Va.) 140, 23 Am. Dec. 258. NUNCUPATIVE WILLS. 213 the declaration to one witness on one day and to another on the next day, is not a sufficient bidding of the persons present to witness the will.®^ § 183. Intention to Make a Will Must Be Clearly Established by Disinterested Witnesses. It is necessary that the testamentary capacity of the deceased and the animus testandi appear by the most indisputable testimony.^* When the testament was made in answer to interrogatories, stricter proof of sponta- jUeity and volition is required than in ordinary cases.®* |And where the words were drawn from the testator by jone whose interest it was to establish them as a will, they did not constitute a valid testament.^ If any doubt re- , 97 Godfrey v. Smith, 73 Neb. 756, 10 Ann. Cas. 1128, 103 N. W. 450; Will of Hebden. 20 N. J. Bq. 473; Wester v. Wester, 5 Jones (N. C.) 95; Estate of Wiley, 187 Pa. St. 82, 67 Am. St. Rep. 569, 40 AU. 980; Weeden v. Bartlett, 6 Munt (Va.) 123; Brown v. State, 87 Wash. 44, 151 Pac. 81. 98 Morgan v. Stevens, 78 111. 287; Dorsey v. Sheppard, 12 Gill & J. (Md.) 192, 37 Am. Dec. 77; Gibson V. Gibson, Walk. (Miss.) 364; Yar- nall's Will, 4 Rawle (Pa.) 46, 26 Am. Dec. 115., In Bundrick v. Haygood, 106 N. C. 468, 11 S. E. 423, where a nuncupative will was denied pro- bate, the court said: "She should have expressed her purpose to make a will. Perhaps it was not necessary that she should do so in terms, but she should have done so in some certain way. She did not do so, unless by mere implica- tion. She said she wanted to see her sister — naming her — wanted to give her sister all her things — wanted her to have them, but she did not say 'I give her all my things — all my property,' or 'I will make a will and by it give my things to her,' nor any like expres- sion." 99Isham V. Bingham, 126 111. App. 513, affirmed in 227 111. 634, 81 N. E. 690; Dorsey v. Sheppard, 12 Gill & J. (Md.) 192, 37 Am. Dec. 77; Andrews v. Andrews, 48 Miss. 220. 1 Brown v. Brown, 2 Murph. (N. C.) 350; Rutt's Estate, 200 Pa. St. 549, 50 Atl. 171. In Isham v. Bingham, 126 111. App. 513, affirmed in 227 III. 634, 81 N. E. 690, the court said: "The only part of this conversation re- lating to the will in which (the 214 COMMENTARIES ON THE LAW OF WILLS. mains as to the spontaneity of the act, the testamentary intention or the capacity, probate will be refused.^ A nuncupative mil can not be proved by a witness inter- ested in its being established, although he did not acquire his interest until after the will was published,* for the evidence produced to establish a nuncupative will is more strictly examined by the court than in the case of a will in writing.* § 184. There Must Be Strict Compliance With the Statutory Requirements. Where nuncupative wills are allowed, other than those of the privileged classes — soldiers and seamen — the stat- ute invariably prescribes restrictions in order to prevent the perpetration of fraud on the part of designing parties who might seek to obtain some undue advantage of a person in his last sickness and secure his property in fraud of his rightful heirs. They are likewise imposed to avoid the mischief which might arise through igno- rance or misunderstanding and to prevent false testi- deceased) appears ... to have 2 Isham v. Bingham, 126 111. App. taken the initiative, is when she 513, affirmed in 227 111. 634, 81 is said to have made the state- N. E. 690; Dorsey v. Sheppard, 12 ment, 'I have never made a will. Gill & J. (Md.) 192, 37 Am. Dec. I want to give you everything I 77. own to do with as you please.' s Gill's Will, 2 Dana (Ky.) 447. This declaration, is not alone suiE- 4 Lemann v. Bonsall, 1 Add. Ecc. cient to constitute a valid nuncu- 389; Scales v. Heirs of Thornton, pative will under the statute, hut 118 Ga. 93, 44 S. B. 857; Harp v. it would carry more weight as an Adams, 142 Ga. 5, 82 S. B. 246; indication of testamentary ca- Estate of Wiley, 187 Pa. St. 82, pacity at the moment had it heen 67 Am. St. Rep. 569, 40 Atl. 980; made spontaneously instead of Estate of Rutt, 200 Pa. St. 549, 50 brought about by a previous con- Atl. 171. versation Initiated by the pro- "The court must be on its guard ponent." against importunity, more jealous NUNCUPATIVE WILLS. 215 mony of testamentary utterances by a dying man, wliicli from tlie nature of things wotild be extremely hard to disprove. The whole subject of nuncupative wills is largely statutory, and although in some cases it has been held that a substantial compliance with the requirements of the statute is sufficient,® yet nuncupative wills have never been favored by the courts, and the prevailing doc- trine is that statutes relating to them must be strictly construed and their requirements fully complied with.® of capacity and more strict in re- quiring spontaneity and volition than it would in an ordinary case." — Dorsey v. Sheppard, 12 Gill & J. (Md.) 198, 37 Am. Dec. 77. BArnett v. Arnett, 27 111. 247, 81 Am. Dec. 227; Mulligan v. Leon- ard, 46 Iowa 694; Gwin v. Wright, 8 Humph. (Tenn.) 639; Ridley v. Coleman, 1 Sneed (Tenn.) 616. 6 Bennett T. Jackson, 2 Phillim. 190; Parsons v. Miller, 2 Phillim. 194; Harp v. Adams, 142 Ga. 5, 82 S. E. 246; Morgan v. Stevens, 78 111. 287; Dorsey v. Sheppard, 12 Gill & J. (Md.) 192, 37 Am. Dec. 77; Biddle v. Biddle, 36 Md. 630; Gibson v. Gibson, Walk. (Miss.) 364; Lucas v. GofC, 33 Miss. 629; Brown v. Brown, 2 Murph. (N. C.) 350; Rankin v. Rankin, 9 Ired. (N. G.) 156; Wester v. Wester, 5 Jones (N. C.) 95; Smith v. Smith, 63 N. C. 637; Burdick v. Haygood, 106 N. C. 468, 11 S. B. 423; Prince V. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307; Yarnall's Will, S Rawle (Pa.) 46, 26 Am. Dec. 115; Taylor's Appeal, 47 Pa. St. 31; Estate of Wiley, 187 Pa. St. 82, 67 Am. St. Rep, 569, 40 Atl. 980; Estate of Rutt, 200 Pa. St. 549, 50 Atl. 171; Mitchell v. Vickers, 20 Tex. 377. "People have become so familiar with the use of the pen that oral testaments are looked upon with disfavor, since they are likely to be the. subjects of fraud, perjury, mistake or misrecollection." — Leathers v. Greenacre, 53 Me. 561. "The law wisely discriminates between written and unwritten wills, and permits the latter only In cases of urgent necessity. To abolish that distinction would be to abolish protection to property, to encourage frauds and perjuries, and to throw us back upon the usages of the unlettered ages." — Prince v. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307. It was said that nuncupative wills require more proof because of the possibility of fraud, facili- ties which must be counteracted by the courts insisting on the strictest proof as to every fact; and testamentary capacity and animus testandi at the time of the 216 COMMENTABIES ON THE LAW OF WILLS. However, a nuncupative will wMch makes no bequests, but merely appoints an executor, is not subject to the provisions of the Statute of Frauds^ § 185. Number of Witnesses to Nuncupative Wills. Witnesses to nuncupative wills were required under the Eoman law, also under the Statute of Frauds. The reason of the witnesses was not to give validity to the act of nuncupation, but in order that the oral testament might be proved. In matters of evidence we are not governed, in this country, by the civil law, and if the statutes in any particular jurisdiction in the United States do not prescribe the number of witnesses neces- sary to prove an oral will, no particular number is re- quired. The court, however, must be satisfied by sufiS- cient and competent evidence as to the substance of the oral dispositions of his property made by the deceased.® In most American states, however, the number of wit- nesses is regulated by statute and, when a number is so prescribed, the statutory requirements must be strictly complied with. For instance, in a late case, in Georgia, where the statute required three witnesses, a nuncupative testament was rejected where, although two witnesses deposed that the deceased disposed of his estate in equal parts to two different persons, yet the third witness testified as to the disposition of one-half of the estate to one of the parties named but that he did not hear any alleged nuncupation must be sEx parte Thompson, 4 Bradf. shown hy the clearest and most (N. Y.) 154. indisputable evidence. — Yarnall's Unless the court Is morally cer- Wlll, 4 Rawle (Pa.) 46, 26 Am. tain that the will propounded car- Dec. 115. Ties the real Intentions of the tes- 7 Dorsey v. Sheppard, 12 Gill & tator, it is its duty to deny it the J. (Md.) 192, 37 Am. Dec. 77. sanction of probate. — Yarnall's NUNCUPATIVE WILLS. 217 statement witli reference to the remainder.^ Of course if the oral testament is declared before an insufficient number of witnesses it would be invalid whether the wit- nesses were required to lend validity to the act or to prove the testament.^" § 186. Committing the Spoken Words to Writing. The Statute of Frauds provided that after the lapse of six months from its declaration, no nuncupative testa- ment could be proved unless the words or the substance thereof had been committed to writing within six days after they had been spoken.^^ Similar provisions have been incorporated into the laws of the various states which sanction oral testaments of personal property by persons in the ordinary walks of life. The time within which the spoken words must be committed to writing varies in the different jurisdictions from three to sixty days. When a nuncupative will has been reduced to writing, it is no cause of nullity that it contains words not used by the testator provided it be clearly shown that it contains the true substance and import of the alleged nuncupation.^^ If, however, the writing fails Will, 4 Rawle (Pa.) 46, 26 Am. In Martinez v. De Martinez, 19 Dec. 115. Tex. Civ. App. 661, 48 S. W. 532, it 9 Reid V. Wooster, 142 Ga. 359, was held that the statute prohiblt- 82 S. B. 1054, following Harp v. ing the probate of a nuncupative Adams, 142 Ga. 5, 82 S. E. 246. will after six months from the 10 Bundrick v. Haygood, 106 time the testamentary words were N. C. 468, 11 S. E. 423; Kennedy spoken unless they, or their sub- V. Douglas, 151 N. C. 336, 66 S. E. stance, should have been com- 216. mitted to writing within six days, 11 Statute 29 Charles II, § 20. is mandatory and no excuse for 12 Starrs v. Mason, 32 La. Ann. failing to proceed with the probate 8; Landry v. Tomatis, 32 La. Ann. within the six months is availing. 113; Yarnall's Will, 4 Rawle (Pa.) 46, 26 Am. Dec. 115. 218 COMMENTAEIES ON THE LAW OP WILLS. to conform in substance to the words spoken, it is invalid, and evidence of such, variance, if it exists, may be intro- duced in a contest to defeat a nuncupative will.^* § 187. Evidence of Witnesses to Oral Testaments Must Sub- stantially Agree. The witnesses must agree as to the substance of the testamentary request made by the deceased, otherwise the court can make no disposition of the property. Where the statute requires a nuncupative will to be proved by a certain number of witnesses, if they can not substantially agree as to the words spoken or the bequests made by the testator there is a failure to comply with the statu- tory requirements and such a will must be rejected. And, further, if the bequests made by the testator are subse- quently reduced to writing and it is at variance with the words spoken by the deceased, it must be rejected." § 188. A Written Will Can Not Be Revoked by One That Is Oral. The Statute of Frauds provided that no will in writing should be revoked, nor any clause, devise or bequest therein be altered, "by any words or will by word of mouth only, except the same be in the life of the testator committed to writing, and only after the writing thereof be read to the testator, and allowed by him and be proved to be so done by three witnesses at the least. "^^ The Statute of Wills provided that wills of personal 13 Harp V. Adams, 142 Ga. 5, 82 St. 38; Mitchell v. Vlckers, 20 Tex. S. B. 246; Bolles v. Harris, 34 Ohio 337. St. 38; Mitchell v.Vickers, 20 Tex. 16 Statute, 29' Charles II, §21; 337. Bac. Ahr., Bouvier's ed., tit. Wills 14 Harp V. Adams, 142 Ga. 5, 82 and Testaments, B; 2 Bl. Com. S. B. 246; Bolles v. Harris, 34 Ohio 'SOO, *501. NUNCUPATIVE WILLS. 219 property, as well as wills of realty, had to be in writing and executed with certain formalities,^® and that no such will or codicil, or any part thereof, could be revoked — otherwise than by marriage — except by another will or codicil executed in a like manner or by some writing de- claring an intention to revoke the same and executed %vith the same formalities, or by burning, tearing, and the like.^'' These provisions of the aforesaid statutes, particularly the latter, have been incorporated into the 'laws of the various states, and it may be said to be the universal rule that a duly executed testamentary writing ' can be revoked only in the form prescribed by the statute, J which does not include revocation by word of mouth.^® ; Yet, although a nuncupative testament can not supersede a written will, it may dispose of an unbequeathed residue of lapsed legacies or of siich portion of the personal estate as the testator, by fraud, may have been induced to bequeath by a prior written will." § 189. Nuncupative Wills of Soldiers and Sailors Have Been Held Valid Although the Testators Had Ceased Their Privileged Callings. Nuncupative wills made by those in the ordinary walks of life can be made only in the "last sickness," therefore recovery would automatically revoke such a testament; for if a man regains his health, a former illness could not be termed his ''last sickness. "^^ As to soldiers in actual military service and mariners and seamen at sea, the fact that they come within the exception of the statute 16 statute, 1 Vict., ch. 26, § 9. 19 Stonywel's Case, Raym. T. 17 Statute, 1 Vict, ch. 26, § 20. 334. isMcCune v. House, 8 Ohio 144, 20 2 Bl. Com. *501, 31 Am. Dec. 438; Brook v. Chap- pel, 34 Wis. 405 220 COMMENTAEIES ON THE LAW OP WILLS. is authority for them to make oral testaments of personal property irrespective of physical condition. Neither the Statute of Frauds nor the Statute of Wills provided in terms that the nuncupative testaments of the privileged classes should be revoked by the safe return of the testa- tor from a military expedition or an ocean voyage, but merely stated that soldiers and seamen, under the cir- cumstances we have referred to, could dispose of their personal estate the same as before said acts were passed. The laws of England and of most of the jurisdictions of the United States, having fixed no limitation of time or set of circumstances which would cause the annulment of the nuncupative wills of soldiers and sailors, such testaments have been admitted to probate although the testators, at the time of death, had long ceased to belong to either of the privileged classes. In England, a nun- cupative will made by a soldier while in active service in 1844, was admitted to probate although he returned to England in 1845 and remained there until his death in 1852.2^ In a New York case, the court, after stating that the will of a sailor at sea did not have to be made in the time of sickness, said: "In submitting to this view it may well be remarked that its dangerous effect is that a mariner's oral will, once made at sea, may remain for his lifetime, and may be proved by the mouth of two witnesses, however long after the event and however ample the testator's opportunity for a deliberate statu- tory will may have been in the meantime."^* 21 Goods of Leese, 17 Jur. 216. statute of Charles II and our Act 22 In re Connor's Will, 65 Misc. of Assembly are not guarded as Rep. 403, 121 N. T. Supp. 903. was the Code of Justinian, or the In the Will of Smith, 6 Phlla. most of those of modern Europe. (Pa.) 104, the court said: "For It They confined their legal disposi- must be borne in mind, that the tion of the soldier's intention to a NUNCUPATIVE WILLS. 221 § 190. The Same Subject: Criticism of the Rule. This rule, however, does not seem to be based on solid reasoning. The law of nuncupative testaments of sol- diers and sailors was adopted from the civil law, the statutes generally prescribing that such wills can be made the same as before the passage of the act regulating wills. The rule of the civil law was that such privileged testaments should be void within a specified time after the testator had returned home or to some place where he had the opportunity to make a will in the ordinary manner.^^ Such is the rule in Louisiana where the law follows the Code Napoleon. In that state oral testa- ments of soldiers and sailors become void "after the return of the testator to a place where he has an oppor- tunity to employ the ordinary forms. "^* In the case of soldiers, the time limit is six months, as to sailors, three months.*" Soldiers and sailors may make oral testa- ments because of the peculiar characters of their callings, but when the reason for the privilege ceases, it is diffi- cult to see upon what foundation — certainly not the civil law — the principle can be based that such wills remain valid no matter what the change of conditions may be. period of three months from the service and returned to his home; time of making it, and if it con- for if once valid, it would so re- tinued longer it must be repeated main until altered or annulled." or renewed. Ours is unlimited in 23 Cod. Civ. L. Ill, tit. II, s. 11, time and indefinite in amount, pro- § 984. vided it is confined to personal 2* Louisiana Civ. Code, art. 1600, estate. Such declarations, unless being a literal copy of the Code subsequently revoked, might be Napoleon 984. set up as a will on the death of 25 Louisiana Civ. Code, arts. a soldier, although he had long; 1600, 1604. See, also, Code Napo- since been discharged from the leon 987, 995, 996. CHAPTER X. DONATIONS MOBTIS CATJSA. § 191. Origin of donations mortis causa. § 192. Definition by Lord Cowper. § 193. Distinguished from gifts inter vivos: Definition. § 194. Distinguished from testamentary dispositions : Rights of creditors. § 195. The right to make donations mortis causa: Not a fraud against rights of wife or children. § 196. Married women may make gifts mortis causa. § 197. Donor must intend that title shall become absolute in donee only in the event of his death. § 198. Revocation of the gift by the donor. § 199. It is necessary that there be peril or apprehension of death, with fatal result. § 200. Peril or apprehension of death which is sufficient to sus- tain the donation. § 201. The same subject : A serious operation. § 202. The same subject: One contemplating suicide is not "in apprehension of death. " § 203. Real property can not be the subject of a donation mortis causa. § 204. The presumption as to the conditions imposed by law. § 205. Confusion of opinion as to the exact nature of donations mortis causa. § 206. Evidence necessary to establish the gift : Witnesses. § 207. The same subject : Burden of proof. § 208. Intention to give must exist : Effect of declarations. § 209. Effect of the donor's declaration that the gift is to be effective if he dies. § 210. Declarations of intention to give, without delivery of property, are testamentary in character. (222) DONATIONS MORTIS CAUSA. 223 § 211. The same subject : The reason given for the rule. § 212. The same subject : Criticism. § 213. A trust is not created by an imperfect gift : Enforce- ment of a valid gift. Ji 214. Trusts or conditions attached to donations mortis causa. § 215. Delivery and continued absence of control are essential. § 216. Delivery to a third person for the benefit pf the donee. § 217. Delivery where the property is in the possession of the donee. § 218. Cancellation of a debt. § 219. Constructive or symbolic delivery. § 220. A writing, without delivery of the property, will not sustain a donation mortis causa. § 221. Choses in action as the subject of a donation mortis causa: Changes in the rule. § 222. The same subject : Where endorsement precludes pay- ment until after the donor's death. § 223. Deposits in savings banks : Delivery of pass book. § 224. Promissory notes as the subject of the gift. § 225. Checks and drafts : Not subjects of gifts mortis causa. § 226. The same subject : Decisions to the contrary. § 191. Origin of Donations Mortis Causa. Donations mortis causa are of early origin, being de- rived from tlie civil law.^ The rules, hovpever, which gov- ern them have been greatly modified both in England and in the United States.^ The modem rule is that such gifts can be made only when the donor is in apprehension or peril of death, whereas the civil law recognized two addi- tional classes: (1) where the donor, "not in periculo mortis, but moved by a general consideration of man's mortality, made a gift"; and (2) where the donor, in the face of a present peril, "gave so that the subject of the 1 Inst. Just, lib. 2, tit. 7, § 1. 431; Irish v. Nutting, 47 Bart, 2 Ward V. Turner, 2 Ves. Sen. (N. Y.) 370. 224 COMMENTARIES ON THE LAW OP WILLS. gift was immediately made the property of the donee," such gift being irrevocable.* Under modern nilings the last two instances mentioned are classified as mere gifts inter vivos and do not fall under the present definition of gifts mortis causa. The distinction between those addi- tional gifts above mentioned which were recognized under the civil law and that which under the modem practice in England and in the United States is designated as a donation mortis causa, was recognized by the Civilians, they holding the latter not a gift until the maker's death.* § 192. Definition by Lord Cowper. The early definition of donations mortis causa, given by Lord Cowper, has often been quoted. It is "where a man lies in extremity, or being surprised with sickness, and not having an opportunity of making his will, but lest he should die before he could make it, he gives with his own hands his goods to his friends about him; this, if he dies, shall operate as a legacy; but if he recovers, then does the property thereof revert to him."^ This definition, with some modifications, has been generally followed, but the rule now is that it is not necessary that s Swinburne, Wills, pt. 1, § 7; gifts taking effect immediately as Phinney v. State, 36 Wash. 236, gifts inter vivos, but conditional 68 L. R. A. 119, 78 Pac. 927. or defeasible, upon the death of 4 In Agnew v. Belfast Banking the donor or of the donee." Co., (1896) 2 Ir. Rep. 204, Pitz- 6 Hedges v. Hedges, Prec. Ch. gibbon, L. J., says: "In applying 269. quotations from the Civilians, we Swinburne, Wills, pt. 1, § 7, de- must always remember that they fines a donatio mortis causa as divide donationes mortis causa "when any being in peril of death into three classes, only one of doth give something, but not so which is recognized as such by that It shall be presently his that our law. The Civilians include — received it, but in case the giver (a) testamentary gifts; and (b) do die." DONATIONS MORTIS CAUSA. 225 the donor be in extremis; it is sufficient if he he in peril of death from some imminent or impending cause or in apprehension of death by reason of illness.® § 193. Distinguished from Gifts Inter Vivos : Definition. A gift mortis causa has many of the elements of a gift inter vivos, but there are distinguishing features. A gift mortis causa may be made only when the donor is in apprehension or peril of death ; further, the gift is condi- tional, being subject to revocation by the donor at any time before his death, and is revoked by law should the donor escape the peril or recover from his illness or out- live the donee. With gifts inter vivos, the title passes immediately upon delivery and the gift is irrevocable.'' It is rather difficult to give a full and complete definition of a donation mortis causa except by stating its various elements, and each of such elements is subject to a sepa- rate and distinct construction. Generally speaking, a donation mortis causa may be said to be a transfer of personal property accomplished by delivery and accept- ance, from a donor who is in peril or apprehension of death, and who makes such transfer in view of such peril or apprehension, the gift being revocable by the donor during his life, and being annulled by law should the donor escape from the peril, recover from the illness, or survive the donee. 6 Irish V. Nutting, 47 Barb, last illness of the donor. — Blount (N. Y.) 370; Grymes v. Hone, 49 v. Burrow, 1 Ves. Jun. 546. N. Y. 17, 10 Am. Rep. 313; Ridden 7 In re Elliott's Estate, 159 Iowa V. Thrall, 125 N. Y. 572, 21 Am. St. 107, 140 N. W. 200; Northrip v. Rep. 758, 11 L. R. A. 684, 26 N. E. Burge, 255 Mo. 641, 164 S. W. 584; 627. Bedell v. Carll, 33 N. Y. 581, 584; The early rule of the common Irish v. Nutting, 47 Barb. (N. Y.) law was that donations mortis 370; Ridden v. Thrall, 125 N. Y. causa could be made only in the 572, 21 Am. St Rep. 758, 11 I Com. on Wills— 15 226 COMMENTAEIES ON THE LAW OF WILLS. §194. Distinguished from Testamentary Dispositions: Rights of Creditors. A donation mortis causa resembles a nuncupative will in that either can be revoked by the maker, neither be- comes effective until the maker's death, and both deal only with personal property. A nuncupative will, except when made by a soldier in actual military service or a mariner or seaman at sea, can be made only when the testator is in extremis; with a gift mortis causa, although it is not necessary that the donor be in extremis, he must be in fear or apprehension of death. There is this distinction, however, the personal property which is the subject of a donation mortis causa must be delivered, either actually or constructively, by the donor ; whereas, with a nuncupative will, no delivery is required.* As to legacies, they are ambulatory in character, revocable at the pleasure of the maker and do not become effective until his death, but they differ from donations mortis causa since delivery of legacies is not required. Again, nuncupative wills must be probated, and any beneficiary thereunder, or the legatee under any will, acquires his interest in the property through the personal representa- tive of the deceased ; whereas the donee of a gift mortis causa since delivery of legacies is not required. Again, donor and adverse to his personal representative." Lega- cies and donations mortis causa, however, have this in common, that both may be abated if the assets of the estate are insufficient to satisfy the claims of creditors. The donee of a gift mortis causa takes the property sub- L. R. A. 684, 26 N. B. 627; O'Gor- 431, 436; Tygard v. McComb, 54 man v. JoUey, 34 S. D. 26, 147 Mo. App. 85. N. W. 78. 9 Thompson v. Hodgson, 2 Stra. 8 Ward V. Turner, 2 Ves. Sen. 777; Tate v. Hilbert, 2 Ves. Jun. DONATIONS MORTIS CAUSA. 227 ject to the right of the administrator of the estate of the donor to reclaim it if it is necessary for the payment of the debts of the deceased.^" § 195. The Right to Make Donations Mortis Causa: Not a Fraud Against Rights of Wife or Children. Donations mortis causa have been recognized for cen- turies, the disposition of personal property by such a gift being a fixed principle of jurisdiction in all civilized countries. ^^ It is a well settled principle that a man may,-^ during his lifetime, dispose of his personal property in- any manner he may desire and, even though he may dof_ so by a voluntary gift, he does not thereby commit ai,- fraud against the rights of his wife and children. While| he lives his wife and children have no vested interest in his personal property; what right they have attaches only after his death ; therefore a man during his lifetime! may transfer his personal property as an absolute gift,. Ill, 120; Tygaxd v. MoComb, 54 nees, legatees and heirs, having Mo. App. 85. paid nothing, are volunteers, and 10 Ward v. Turner, 2 Ves. Sen. have claims only on his bounty." 431, 434; Basket v. Hassell, 107 n Baber v. Caples, 71 Ore. 212, U. S. 602, 27 L. Ed. 500, 2 Sup. Ct. Ann. Cas. 1916C, 1025, 138 Pac. 415; Larrabee v. Hascall, 88 Me. 472; Johnson v. Colley, 101 Va. 511, 51 Am. St. Rep. 440, 34 Atl. 414, 99 Am. St. Rep. 884, 44 S. E. 408; Mitchell v. Pease, 7 Gush. 721. (Mass.) 350; Phlnney v. State, 36 "Gifts causa mortis as well as Wash. 236, 68 L. R. A. 119, 78 Pac. Si^^^ inter vivos are based upon 927. See, also, Blake v. Jones, 1 ^^^ fundamental right every one Bailey Eq. (S. C.) 141, 21 Am. ^^°^ "^!f^°'!^,^ °/ ^' ^'^^^'f Dec. 530. as he wills. The law leaves the power of disposition complete, but In Chase v. Redding, 13 Gray ^^ ^^^^ ^^^^^^^ ^^^^^ ^^^ .^_ (Mass.) 418, Chief Justice Shaw pogiyon, regulates the methods by says: "A man is bound to be just -^hich it is accomplished." — Rid- before he is generous. Creditors den v. Thrall, 125 N. Y. 572, 21 have claims on the justice and Am. St. Rep. 758, 11 L. R. A. 684, legal duty of the debtor, while do- 26 N. E. 627. 228 COMMENTARIES ON THE LAW OF WILLS. in trust or otherwise, and no one can complain, Sucli gifts or transfers, if made by a competent person and fully executed, in the absence of fraud, duress or undue influence, are perfectly valid.^^ § 196. Married Women May Make Gifts Mortis Causa. A married woman may be the donee of a gift mortis causa the same as she may be the recipient of any gift, and the presumption is that the property was given to her for her separate use.^* Donations mortis causa be- tween husband and wife were sanctioned by the civil law and this rule was early followed in England.^* As to her personal estate, a married woman has the same power of transferring it by gift mortis causa as she has of dis- posing of it by will,^^ although in a Massachusetts case it was held that the testamentary restrictions placed by the statute upon married women did not apply to such gifts.^* The same mental capacity is required to make a gift mortis causa as is required to make a will, and there must be the same freedom from fraud, duress, or undue influence.^'^ These matters will be dealt with later. i2Bllmaker v. EUmaker, 4 Wend. (N. Y.) 526, 34 Am. Dec. Watts (Pa.) 89; Dickerson's Ap- 340; Meach v. Meach, 24 Vt. 591. peal, 115 Pa. 198, 2 Am. St. Rep. 14 Inst. Just., pt. 2, tit. 7, §3; 547, 8 Atl. 64; Lines v. Lines, 142 Lawson v. Lawson, 1 P. Wms. Pa. 149, 24 Am. St. Rep. 487, 21 441; Miller v. Miller, 3 P. Wms. Atl. 809; Young's Estate, 202 Pa. 356; Jones v. Selby, Prec. Ch. 300. 431, 51 Atl. 1036; Windolph v. 15 Jones v. Brown, 34 N. H. 439. Girard Trust Co., 245 Pa. St. 349, 16 Marshall v. Berry, 13 Allen 91 Atl. 634; Hall v. Hall, 109 Va. (Mass.) 43. 117, 21 L. R. A. (N. S.) 533, 63 17 Ross v. Conway, 92 Cal. 632, S. E. 420. 28 Pac. 785; Woodbury v. Wood 13 Baxter v. Bailey, 8 B. Hon. bury, 141 Mass. 329, 55 Am. Rep (Ky.) 336; Gardner v. Gardner, 22 479, 5 N. E. 275; Sass v. McCor- mack, 62 Minn. 234, 64 N. W. 385, DONATIONS MORTIS CAUSA. 229 § 197. Donor Must Intend That Title Shall Become Absolute in Donee Only in the Event of His Death. There is no principle of law which prevents a person in apprehension or peril of death, or even in extremis, from making a valid gift inter vivos. A qualified donor can, at any time, make a present gift without condition or limitation arising either from his own intentions or by implication of law. A gift made by a person, even w extremis, accompanied by the other elements necessary to perfect the gift, with the intent that title shall pass imme- diately and irrevocably, is valid as a gift inter vivos. A donation mortis causa, therefore, must not only be made by a donor in peril or apprehension of death, but must be made in view of such a condition and conditioned thereon.^* § 198. Revocation of the Gift by the Donor. A gift mortis causa may be revoked by the donor at any time during his life.^® Such revocation may be made by 18 Keller v. McConville, 175 son to whom it is given should Mich. 479, 141 N. W. 652. See, also, have it and keep it, but the motive Irons V. Smallpiece, 2 Barn. & Aid. of a donatio mortis causa is to let 551; Tate v. Leithead, Kay, 658; it take effect only when self-inter- Gilligan v. Lord, 51 Conn. 562; est is at an end, and the desire to Cowdrey v. Barksdale, 16 Ga. App. retain the object through the love 387, 85 S. E. 617; Dresser v. of life is still stronger than the Dresser, 46 Me. 48; In re Heiser's desire to give it to the donee." Estate, 147 N. Y. Supp. 557, 85 In Cowdrey v. Barksdale, 16 Misc. Rep. 271; Phlnney v. State, Ga. App. 387, 85 S. E. 617, it was 36 Wash. 236, 68 L. R. A. 119, 78 held that not only must a gift Pac. 927; Henschel v. Maurer, 69 mortis causa be made where the VSris. 576, 2 Am. St. Rep. 757, 34 donor was seriously ill or in ap- N. W. 926. prehension of death, but the in- In Agnew v. Belfast Banking tention must be that the gift is to Co. (1896), 2 Jr. Rep. 204, Fitz- be absolute only in the event of gibbon, L. J., says: "The motive of the donor's death, a gift inter vivos is that the per- 19 Basket v. Hassell, 107 U. S. 230 COMMENTAEIES ON THE LAW OF WILLS. the donor again assuming possession of the property which was the subject of the gift, any resumption of con- trol and dominion over the property by the donor amount- ing to a revocation.^" Such a gift, however, is not revoked should the donor subsequently make a will bequeathing to some one other than the donee the property which was the subject of the gift, since the title of the donee be- comes absolute at the moment of the donor's death and his right, by relation, dates from the time of delivery.^^ If, however, the donor make a legacy of the same prop- erty to the donee, the gift is satisfied or the donee may elect under which he will take.^^ § 199. It Is Necessary That There Be Peril or Apprehension of Death, With Fatal Result. Under the civil law a present peril or apprehension of death was not necessary, the general consideration of the mortality of man or the possible dangers which might be encountered upon taking a long journey being suffi- cient. The modern rule is that the donor must be in apprehension of death because of some illness, or con- fronted by some immediate peril which endangers his life. If the gift is made because of some sickness or malady with which the donor is afflicted and because of which he is in apprehension of death, it is not necessary 602, 27 L. Ed. 500, 2 Sup. Ct. 415; 431, 436; Bunn v. Markham, 7 Bickford v. Mattocks, 95 Me. 547, Taunt. 232; Hatch v. Atkinson, 56 50 Atl. 894; Bieber's Admr. v. Me. 324, 96 Am. Dec. 464; O'Gop- Boeckmann, 70 Mo. App. 503; man v. Jolley, 34 S. D. 26, 147 Northrip V. Burge, 255 Mo. 641-, 164 N. W. 78. S. W. 584; Gale v. Drake, 51 N. H. 21 Jones v. Selby, Free. Ch. 300; 78; Matter of Manhardt (Estate of Brunson v. Henry, 140 Ind. 455, Seltz), 17 App. Div. 1, 44 N. Y. 39 N. E. 256. Supp. 836. 22 Jones v. Selby, Free. Ch. 300; 20 Ward V. Turner, 2 Ves. Sen. Johnson v. Smith, 1 Ves. Sen. 31 1. DONATIONS MORTIS CAUSA. 231 tliat he be in extremis or die in tlie very near future, but it is essential, however, that he do not recover from his illness, or, if the gift be made because of some present and imminent peril which endangers his life, that he do not survive such peril.^* In a New York case, however, 23 Agnew V. Belfast Banking Co. (1896), 2 Ir. Rep. 204; Gilligan v. Lord, 51 Conn. 562; Cowdrey v. Barksdale, 16 Ga. App. 387, 85 S. B. 617; Donover v. Argo, 79 Iowa 574, 44 N. W. 818; Stokes v. Sprague, 110 Iowa 89, 81 N. W. 195; Hogan V. Sullivan, 114 Iowa 456, 87 N. W. 447; Barto v. Harrison, 138 Iowa 413, 116 N. W. 317; In re Elliott's Estate, 159 Iowa 107, 140 N. W. 200; Larrabee v. Hascall, 88 Me. 511, 51 Am. St. Rep. 440, 34 Atl. 408; Keller v. McConville, 175 Mich. 479, 141 N. W. 652; In re Heiser's Estate, 147 N. T. Supp. 557, 85 Misc. Rep. 271; Danzinger V. Seamen's Bank for Savings, 86 Misc. Rep. 316, 149 N. Y. Supp. 207; Irish v. Nutting, 47 Barb. (N. Y.) 370; Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313; Wil- liams V. Guile, 117 N. Y. 343, 349, 6 L. R. A. 366, 22 N. E. 1071; Rid- den V. Thrall, 125 N. Y. 572, 21 Am. St. Rep. 758, 11 L. R. A. 684, 26 N. B. 627; Phinney v. State, 36 Wash. 236, 68 L. R. A. 119, 78 Pac. 927; Newsome v. Allen, 86 Wash. 678, 151 Pac. Ill; Henschel v. Maurer, 69 Wis. 576, 2 Am. St. Rep. 757, 34 N. W. 926. In Larrabee v. Hascall, 88 Me. 511, 51 Am. St. Rep. 440, 34 Atl. 408, where the donor did not die for one and a half months after making the gift, yet as he was suffering at the time from a sick- ness from which he afterwards did die, it was held that he was in ap- prehension of death, being then so sick as to require a nurse, and the sickness having continued to in- crease until it terminated in hia death. In Van Fleet v. McCam, 2 N. Y. Supp. 675, where the donor was afflicted only with rheumatism, the infirmities of old age being the principal reason for her apprehen- sion of death, she living fourteen months after making the gift and dying suddenly from another and acute ailment, it was held that there was no showing that the donor was under the apprehension of immediate death when the gift was made. In Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313, it was held that where the donor was nearly eighty years of age and in failing health which so continued until his death five months later, there being no specific evidence as to the nature of the illness of the deceased, the court could not say as a matter of law that he was not acting in view or apprehension of death. The court stated that "the only rule is that he must not recover from that illness." 232 COMMENTARIES ON THE LAW OF WILLS. where a gift was made in apprehension of death from an operation to be performed for hernia, which operation did not appear to be dangerous and which was in fact successful, but where the donor died of heart disease with which he had been suiTering before he went to the hospital, it was held a good donation mortis causa. The court uses language from which it might be inferred as holding that it is not necessary that the donor die from the exact disease which he feared at the time of making the gift and that it is sufficient if death occurs from some other disease not at the time known. The court said, how- ever, that in this particular case it could not be deter- mined to what extent the fear of heart disease caused the making of the gift or whether, except for the operation, it would have been fatal at that time, and the decision was strictly limited to the facts of the case.^* § 200. Peril or Apprehension of Death Which Is Sufficient to Sustain the Donation. Although the rule is, generally speaking, other condi- tions being satisfied, that one in peril or apprehension of immediate or approaching death may make a gift mortis causa, yet not all perils or fears are sufficient to satisfy the rule. Probable dangers to be encountered on a jour- ney by rail or water, by horse or automobile, do not suffice. A" soldier at home on a furlough and in good health, al- though about to depart for the field of active operations, In Williams v. Guile, 117 N. Y. the gift, or that death occurred 343, 349, 6 L. R. A. 366, 22 N. E. within a limited time; but only 1071, the donor was suffering from that when he died, it must have paralysis, from a stroke of which been of the disease which he he subsequently died. The court feared when he made the gift, held it was not necessary for the 24 Ridden v. Thrall, 125 N. Y, donor, in such a case, to have been 572, 21 Am. St. Rep. 758, 11 L. R. A. confined to his bed when he made 684, 26 N. E. 627. DONATIONS MORTIS CAUSA. 233 can. not make a gift mortis causa.^^ One in delicate health, both lungs being affected, who attempted to make a gift jnst prior to his departure for a sanitarium where he "hoped he would get well, but he had his doubts about it," and where he died of the malady some eleven months later, was held not to have been in apprehension of death. The court said the deceased went to the sanitarium to get well, not for the purpose of dying.^® § 201. The Same Subject: A Serious Operation. A person who is suffering from some illness or malady requiring an operation from which he thereafter dies, may, just prior to such operation, be said to be in appre- hension of death. Although he voluntarily exposes him- self to the danger, yet it is made necessary by reason of an existing disease and, death ensuing, the disease may be said to be the proximate cause.^^ § 202. The Same Subject : One Contemplating Suicide Is Not "In Apprehension of Death." A donation mortis causa made by one who was in con- templation of suicide which he immediately carried out, should not be upheld. One who voluntarily seeks death can not be said to be in apprehension or fear of death. Further, to sustain such a gift would be contrary to pub- lic policy, for it would be giving validity to that which 25 Irish V. Nutting, 47 Barb. Weston v. Hight, 17 Me. 287, 35 (N. Y.) 370; Gourley v. Linsenblg- Am. Dec. 250. ler, 51 Pa. St. 345. 27 Ridden v. Thrall, 125 N. Y. Compare: Gass v. Simpson, 4 572, 21 Am. St. Rep, 758, 11 L. R. A. Cold. (Tenn.) 288. 684, 26 N. E. 627. 26 Danzinger v. Seamen's Bank In Newsome v. Allen, 86 Wash, for Savings, 86 Misc. Rep. 316, 149 678, 151 Pao. Ill, an alleged dona- N. Y. Supp. 207. See, also: Stanl- tlon mortis causa made by a land V. Willott, 3 Macn. & G. 664; woman to her sister before going 234 COMMENTARIES ON THE LAW OP WILLS. could become effective only by reason of the self destruc- tion of the donor.2* In the United States, generally, al- though attempted suicide is a crime, yet it is not if it ends fatally; but in those jurisdictions where the rule is more strict, there would be the additional reason for holding such a gift invalid, for other-wise it would be sus- tained only because of the commission of a criminal of- fense. And the same rule applies where the donor suffers capital punishment.^* § 203. Real Property Can Not Be the Subject of a Donatioii Mortis Causa. It is only personal property that may be the subject of a donation mortis causa. It has been said that under the Eoman law, real property as well as personal property could be the subject of such a gift.^" This rule has never prevailed in England or in the United States, and it may be questioned whether it existed under the civil law with reference to the English form of a donation mortis causa since it recognized two additional forms which would not be included in the modern definition of such a gift. Judge Eedfield, after quoting the definition given in the Institutes of Justinian*^ of a donatio mortis causa, said that such a gift would not include real prop- erty, even though conveyed by deed. He held that a deed of realty, although made in apprehension of death, was a to a hospital, where she died five 28 Balnbrldge v. Hoes, 149 N. Y. days later, was held invalid, the Supp. 20, 163 App. Div. 870. court stating that she had not been ^^ j^^^^^ ^ ^^^^^^^ Banking Co. itt perlculo mortis; hut the case, ^ggg^^ g Ir. Rep. 204, 223. however, was really decided on the point that there was a lack of de- '"^"^^ ^- Cutting, 47 Barb. livery. See, also, Fauley v. Mc- ^^" ^"^ ^^^' Laughlln, 80 Wash. 547, 141 Pac. si Justin. Inst., lib. 2, tit 7. 1037. DONATIONS MOETIS CAUSA. 235 testamentary disposition and void, saying: "A gift of real property can not be sustained as a donatio mortis causa, for that only extends to personalty. "^* This is the universal rule in England and America and aU decisions which attempt to fully define donations mortis causa in- clude therein the fact that they apply only to personalty. The decisions, however, give no satisfactory reason for this rule, but it is a salutary one. It is well established that personal property can pass by delivery, whereas, since the Statute of Frauds, no transfer of real property is valid unless the same be in writing. "Written contracts should not be altered by oral declarations, therefore the instrument of transfer of real property must speak for itself and contain all the provisions, conditions or limita- tions affecting the conveyance. In some instances sym- bolic delivery is necessary with reference to personal property not capable of manual delivery, and the same could have been said of real property when livery of seisin was in vogue. Since the Statute of Frauds, how- ever, livery of seisin is no longer permissible, nor under the various statutes regarding wills can any devise of real property be made except by a duly executed written instrument. The various statutes have been passed for the prevention of frauds. Again, personal property is liable to be lost, wherein it differs from realty. A deed of realty becomes effective only upon delivery. The grantor may insert in the deed any valid conditions he desires as to when the title shall vest in the grantee, but the deed to be valid must be deliv- ered and, if delivered, can not be revoked by the grantor. In this it differs from a gift mortis causa since the latter S2Meach v. Meach, 24 Vt. 691. 89 Me. 167, 36 Atl. 108; Houghton See, also, Wentworth v. Shibles, v. Houghton, 34 Hun (N. Y.) 212. 236 COMMENTARIES ON THE LAW OF WILLS. is anniilled in the event of certain conditions whicli are imposed by law. A deed undelivered, although to take effect after the happening of some future event such as the death of the grantor,*^ or a deed deposited by the grantor with another, the grantor reserving the right to recall or control the deed, transfers no interest to the grantee.** § 204. The Presumption as to the Conditions Imposed by Law. A donation mortis causa becomes complete and effective only in the event that the donor does not survive the impending peril or recover from the illness which caused the apprehension of death, and, further, that the donee survive the donor, and that the donor prior to his death does not revoke the gift. These are conditions imposed by law and they need not be declared by the donor. Where one in fear of death from an immediate peril or present illness makes a gift of personal property, the law infers that the giver intended the donee to have the property only on the conditions above mentioned. As has been before stated, a person in apprehension of death can make a gift inter vivos and facts and circumstances surrounding the transaction may show that such was in- tended. In the absence of such evidence, however, the inference of the law prevails.*^ ssLatshaw v. Latshaw, 266 IlL 111; Gardner v. Parker, 3 Mad. 44, 107 N. B. 111. 184; Agnew v. Belfast Bank- 34 Dickson v. Miller, 124 Minn, ing Co. (1896), 2 Ir. Rep. 204; Bas- 346, 145 N. W. 112; Wortz v. ket v. Hassell, 107 U. S. 602, 27 Wortz, 128 Minn. 251, 150 N. W. L. Ed. 500, 2 Sup. Ct. 415; Bickford 809; Wilson v. Bridgeforth, 108 v. Mattocks, 95 Me. 547, 50 Atl. Miss. 199, 66 So. 524; Owings v. 894; Bieber's Admr. v. Boeck- First National Bank, 97 Neb. 257, mann, 70 Mo. App. 503; Foley v. 149 N. W. 777. Harrison, 233 Mo. 460, 136 S. W. 85 Tate V. Hilbert, 2 Ves. Jun. 354, Northrip v. Burge, 255 Mo. DONATIONS MORTIS CAUSA. 237 § 205. Confusion of Opinion as to the Exact Nature of Dona^ tions Mortis Causa. Because of the fact that a donation mortis causa may be said to be ambulatory in its nature by reason of the conditions imposed by law, some confusion has arisen as to its exact character, whether it is a perfected gift liable to be annulled only upon the occurrence of condi- tions subsequent, or whether it is an indeterminate transaction which can ripen into a gift only in the event of certain contingencies. The Civilians placed the Eng-!' lish form of a donation mortis causa in a special class,! having held it not to be a gift at all until the death of thej" donor. In this connection Fitzgibbon, L. J., says: "In! this matter the Civilians are more accurate than those' judges and text writers who have sometimes slipped into language which introduces the idea of revocability, as distinguished from futurity or imperfection."^® In an early New York case the following language was used: "A donatio mortis causa takes effect from the time the 641, 164 S. W. 584; Gale v. Drake, 36 Wash. 236, 68 L. R. A. 119, 78 51 N. H. 78. Pac. 927. Matter of Manhardt (Estate of 36 Agnew v. Belfast Banking Co. Seitz), 17 App. Div. 1, 44 N. Y. (1896), 2 Ir. Rep. 204. Supp. 836; Danzinger v. Seamen's In the case just cited, at p. 223, Savings Bank, 86 Misc. Rep. 316, Fitzgibbon, L. J., goes further and 149 N. Y. Supp. 207; Irish v. Nut- says: "Therefore, according to the ting, 47 Barb. (N. Y.) 370; Harris civil law, and our law is the same, V. Clark, 3 N. Y. 93, 51 Am. Dec. in the case of a donatio mortis 352; Bedell v. Carll, 33 N. Y. 581, causa, in the English sense, you 584; Ridden v. Thrall, 125 N. Y. must look to the capacity of the 572, 21 Am. St. Rep. 758, 11 L. R. A. donor at the time of death to see if 684, 26 N. E. 627; KifC v. Weaver, at that time he has power to make 94 N. C. 274, 55 Am. Rep. 601; the gift, which though made be- O'Gorman v. JoUey, 34 S. D. 26, 147 fore does not take effect till then." N. W. 78; Seabright v. Seabright, See, also, Cowdrey v. Barksdale, 28 W. Va. 412; Phinney v. State, 16 Ga. App. 387, 85 S. E. 617. To 238 COMMENTARIES ON THE LAW OP WILLS. gift is made, but is revocable during the life of the donor. If not revoked during Ms life, the title becomes absolute upon his death; and by relation from the time of de- livery."^'' In a comparatively recent case in Virginia, the Court says: "The title to every gift causa mortis must vest in the donee at the time of the gift. It vests, however, subject to certain conditions subsequent. The donor may revoke the gift during his life, or it will be defeated by operation of law if the donor should recover from the illness which induced the gift, or should sur- vive the donee. If it is not revoked or defeated by opera- tion of law, it becomes absolute at the donor 's death, but not until then."®* Undoubtedly courts in many instances have used lan- guage in connection with this matter without having had in mind the particular point at issue. As will be shown hereafter, the property must pass by delivery at the time the gift mortis causa is made; but as to the title to the property, it remains in the donor until the moment of his death. The property must pass out of the possession and control of the donor and the donee may be said to have an equitable interest in it, but such interest is in- choate and defeasible imtil the happening of a certain the same effect; see: Basket v. In O'Gorman v. JoUey, 34 S. D. Hassell, 107 XJ. S. 602, 27 L. Ed. 26, 147 N. W. 78, the court says: 500, 2 Sup. Ct. 415, quoting with "A gift causa mortis is a gift In approval the case of Gass v. Simp- contemplation o f approaching son, 4 Cold. (Tenn.) 288. death, the intent accompanied by 37 Harris v. Clark, 3 N. Y. 93, delivery. Both the intent and the 114, 51 Am. Dec. 352. See, also: delivery are accompanied by con- Irish V. Nutting, 47 Barb. (N. Y.) ditions Imposed by law, any one of 370* Ridden v. Thrall, 125 N. Y. which may operate as a defeasance 572, 21 Am. St. Rep. 758, 11 L. R. A. of the gift." 684, 26 N. B. 627; Walter v. Hodge, ss Johnson v. CoUey, 101 Va. 414, 2 Swanst. 98. 99 Am. St. Rep. 884, 44 S. E. 721. DONATIONS MORTIS CAUSA. 239 event, and not until then does the title in the donee be- come absolute. With reference to the title to the prop- erty, the interest of the donee is incomplete during the lifetime of the donor, therefore it can not be said that there is a perfected gift until the donor 's death. § 206. Evidence Necessary to Establish the Gift : Witnesses. Under the civil law, five witnesses were required to establish a donation mortis causa, but the rule today in England and in the United States is that such gifts may be proved even by a single witness.^® Formerly, when the rule existed that no one could give evidence for himself, a donation mortis causa could have been established only by testimony other than that of the donee.*" The rule of today, however, is merely that such a gift must be established by clear and convincing proof. The rule of the civil law has been disregarded, as has the rule that a formally executed will requires witnesses other than those who may be beneficiaries under it. An holographic will is, of course, not witnessed ; but, being entirely in the handwriting of the testator, it may be presumed to be a correct declaration of his intentions. It is a general principle of evidence, however, that if any witness tes- tifies under the influence of bias or gain, his testimony is to be viewed with distrust, and this principle would apply where the donee of a gift mortis causa sought to 39 McConnell v. Murray, 3 Ir. Bq. though, this caused many to fall Rep. 465; Irish v. Nutting, 47 Barb, that were really Intended by the (N. y.) 370. donor, it was thought to sufeer that In Stewart v. Stokes, 177 Mo. injustice, since it was small, as App. 390, 164 S. W. 156, the court compared to the wholesale plunder says: "At one time, such gifts were sure to follow the removal of such invalid, in the civil law, unless at- restraint." tested by five witnesses; and, 4o Williams, Exec, * 661. 240 COMMENTAKIES ON THE LAW OP WILLS. establish the same by his own uncorroborated testimony. Such a gift should not be established except by the tes- timony of one or more disinterested witnesses. §207. The Same Subject: Burden of Proof . The burden of proof is upon the person seeking to establish a donation mortis causa. All facts necessary to constitute such a gift must be clearly proved, there being no presumption in its favor, for the law does not presume that a party will voluntarily part with his prop- erty. This does not mean, however, that the law pre- sumes that such a gift was not made, the rule being that there is no presumption either in favor of or against the gift. But because of the opportunity for fraud, the courts wiU carefully scrutinize all of the facts, and the proof necessary to establish a donation mortis causa must be strong and convincing.*^ Ordinarily it 41 Walter v. Hodge, 2 Swanst. Caples, 71 Ore. 12, Ann. Gas. 1916C 92; Cosnahan v. Grice, 15 Moore 1025, 138 Pac. 472; Wells v. P. C. C. 215; In re Llphart, 227 Tucker, 3 Bin. (Pa.) 366; Blake v. Fed. 135; Hitch v. Davis, 3 Md. Ch. Jones, 1 Bailey Eq. (S. C.) 141, 21 266; Drew v. Hagerty, 81 Me. 231, Am. Dec. 530; Yancy v. Field, 85 10 Am. St. Rep. 255, 3 L. R. A. 230, Va. 756, 761, 8 S. B. 721; Thomas's 17 Atl. 63; Gray v. Doubikin, 188 Admr. v. Lewis, 89 Va. 1, 37 Am. Mo. App. 667, 176 S. W. 514; Ty- St. Rep. 848, 18 L. R. A. 170, 15 gard V. Falor, 163 Mo. 234, 63 S. W. S. E. 389; Spooner v. Hilbish, 92 672; Matter of Swade, 65 App. Div. Va. 333, 341, 23 S. E. 751; Jackson 592, 72 N. Y. Supp. 1030; Lehr v. v. Lamar, 67 Wash. 385, 121 Pac. Jones, 74 App. Div. 54, 77 N. Y. 857; Newsome v. Allen, 86 Wash. Supp. 213; Danzinger v. Seamen's 678, 151 Pac. 111. Bank for Savings, 86 Misc. Rep. 316, In Johnson v. CoUey, 101 Va. 149 N. Y. Supp. 207; Lewis v. Mer- 414, 99 Am. St. Rep. 884, 44 S. E. ritt, 113 N. Y. 386, 21 N. E. 141; 721, the court said: "We are not Devlin v. Greenwich Savings Bank, unmindful of the great danger of (25 N. Y. 756, 26 N. E. 744; Waite fraud in this sort of gift, and that V. Grubbe, 43 Ore. 406, 99 Am. St. the courts can not be too cautious Rep. 764, 73 Pac. 206; Baber v. in requiring clear proof of the DONATIONS MORTIS CAUSA. 241 may be said that a fair preponderance of evidence is suf- ficient, but this may vary with the circumstances of the case. For instance, where the gift mortis causa which is sought to be established was from a father to a child, or to some relative who would under the laws of succes- sion be the natural recipient of the donor 's bounty at his death, less positive and unequivocable testimony would be necessary than would be required in a case where the alleged gift was to some person in nowise related to the donor and who had no claim upon him.*^ In the first instance, there would not be the natural suggestion of fraud or undue influence which might arise in the latter case, and therefore slight evidence would suffice. All the circumstances surrounding the transaction are to be considered and if such circumstances are suspicious, the gift will not be sustained unless they are very clearly and fully explained. Thus, where the evidence showed that a party suffering from consimiption had left for Texas and had with him three hundred dollars and a draft for one thousand dollars with which to pay his ex- penses, and who became so seriously ill at Kansas City transaction. Nor are we prepared DuflSeld v. Elwes, 1 Bligh, N. S. to dispute tlie wisdom of Lord 533, wherein he says: "Improve- Eldon's observance that 'It would ments in the law, or some other be quite as well if this donation things which have been considered mortis causa were struck out of improvements, have lately been our law altogether.' So long, how- proposed; and if among those ever, as the law remains un- things called improvements this changed, by competent authority, donatio mortis causa were struck imbedded as it Is in our jurispru- out of the law altogether. It would dence, and sanctioned by the ex- be quite as well." perience of centuries, the court 42 Love v. Francis, 63 Mich. 181, must give it effect in cases like 6 Am. St. Rep. 290, 29 N. W. 843; this, where the evidence is clear approved in Caldwell v. Goode- and convincing." The reference to nough, 170 Mich. 114, 135 N. W. Lord Eldon is from the case of 1057. I Com. on Wills— 16 242 COMMENTARIES ON THE LAW OF WILLS. that he could not continue Ms journey, and died there, it was held that giving away the money and the draft when he was away from home and leaving himself nothing with which to pay his expenses, either to return or go on should he live, or with which to have his body returned to his home in case of his death, was a suspicious cir- cumstance, and a gift under such conditions would be viewed with grave suspicion.** § 208. Intention to Give Must Exist: Effect of Declarations. There must exist the intention to give, otherwise there can be no valid donation either mortis causa or inter vivos. The mere declaration or expression of an inten- tion or purpose to give personal property to another is not sufficient in itself to constitute a gift. Evidence of dec- larations or admissions of an alleged donor of an inten- tion to give will not give rise to the presumption that there has been a gift,** but such evidence, however, is admissible in connection with all the facts of the case to prove the nature of certain acts or to corroborate other testimony.*' And declarations which are in the nature 43 In Stewart v. Stokes, 177 Mo. easy would it be for those In the App. 390, 164 S. W. 156, the court privacy of the death chamber to says: "The rule is that, in circum- absorb the sick man's jewels, stances here disclosed, a party notes, stocks, bonds, and other claiming a deathbed gift of valu- property, if no protection was of- able property, and thus diverting fered, that the law has put up it from its lawful descent and from every safeguard against such pos- the course of primary affection (in sibility." this case a wife and little boy), 44 Baber v. Caples, 71 Ore. 212, must have evidence so free of sus- Ann. Cas. 1916C 1025, 138 Pac. picion as will convince the judicial 472 ; Cowdrey v. Barksdale, 16 Ga. mind beyond any reasonable doubt App. 387, 85 S. E. 617. that the gift was made as claimed. 45 Campbell v. Sech, 155 Mich. Ordinary preponderance or weight 634, 119 N. W. 922; Lerche v. Kish- of evidence will not answer. So paugh, 180 Mich. 617, 147 N. W. DONATIONS MORTIS CAUSA. 243 of admissions against interest, although subsequent to the acts constituting the alleged gift, are admissible in evidence for the same purpose.*^ §209. Effect of the Donor's Declaration That the Gift Is to Be Effective If He Dies. Delivery of personal property is often accompanied by language such as "In case I die," or "If any- thing should happen to me, the property is to belong to you." It has been held that a donor, by using such language, does not thereby impose a condition to the gift or make it testamentary. It is merely an expression by him of a condition which the law itself attaches to dona- tions mortis causa, for they do not become absolute or irrevocable except upon the death of the donor. These are conditions imposed by law and need not be expressed by the donor; but if he does so while performing the other acts necessary to establish a donation mortis causa, it may be said that it but more clearly shows the nature of the gift.*'' However, a donor may, if he desires, im- 499; Lewis v. Merritt, 113 N. Y. letter was never mailed and was 386, 21 N. B. 141; Devlin v. Green- found among the effects of the wich Savings Bank, 125 N. Y. 756, donor after his death, it was held 26 N. E. 744; Blake v. Jones, 1 that the letter was not suflaclent to Bailey Eq. (S. C.) 141, 21 Am. Dec. establish the gift but was strong 530; Jackson v. Lamar, 67 Wash, evidence in confirmation and cor-, 385, 121 Pac. 857. roboration of oral testimony given, ; In Ridden v. Thrall, 125 N. Y. and the gift was sustained. 572, 21 Am. St. Rep. 758, 11 L. R. A. 46 Darland v. Taylor, 52 Iowa 684, 26 N. E. 627, where the de- 503, 35 Am. Rep. 285, 3 N. W. 510; ceased had written a letter to the Garrison v. Union Trust Co., 164 donee to the effect that he was Mich. 345, 32 L. R. A. (N. S.) 219, afraid he was going to die under 129 N. W. 691; Keller v. McCon- the operation he was about to un- ville, 175 Mich. 479, 141 N. W. 652 ; dergo and that if he did not re- Smith v. Maine, 25 Barb. (N. Y.) cover he gave certain personal 33. property to the donee, but which a Snellgrove v. Bailey, 3 Atk. 244 COMMENTAEIES ON THE LAW OF WILLS. pose conditions to gifts of personal property. A donor might have intended by the use of such language as is mentioned above, to have made his death an absolute condition to the passing of, the property, not having in- tended to part with any estate therein unless death over- took him; or he might have used such language merely for the purpose of explaining the reason for making the gift. The meaning of such language, therefore, is a ques- tion of fact,** but when all the elements of a gift mortis causa are present, such language will ordinarily not be held to be testamentary, but merely explanatory. § 210. Declarations of Intention to Give, Without Delivery of Property, Are Testamentary in Character. If a person who is ill, even with death approaching, attempts to dispose of his personal property, the prima facie presumption is that his acts or declarations, stand- ing alone, were intended to be testamentary. This pre- sumption prevails unless the contrary be clearly shown. A gift mortis causa can be sustained only when all the essential elements necessary to prove it have been clearly established. The mere intention to give is insufficient, for it must be accompanied by delivery, either actual or constructive. If the elements of a gift are lacking, there can not be a gift. Any declarations or admissions of an alleged donor, not being sufficient to prove a gift, would 214; Hill T. Chapman, 2 Bro. Ch. L. R. A. 170, 15 S. E. 389; Johnson 612; Gulnan's Appeal, 70 Conn. 342, v. Colley, 101 Va. 414, 99 Am. St. 39 Atl. 482; Shackleford v. Brown, Rep. 884, 44 S. E. 721. Compare: 89 Mo. 546, 1 S. W. 390; Grymes v. Newsome v. Allen, 86 Wash. 678, Hone, 49 N. Y. 17, 10 Am. Rep. 151 Pac. 111. 313; Wells v. Tucker, 3 Bin. (Pa.) 48 Fagan v. Troutman, 24 Colo. 366, 370; Thomas's Admr. v. Lewis, App. 473, 135 Pac. 122. 89 Va. 1, 37 Am. St. Rep. 848, 18 DONATIONS MOKTIS CAUSA. 245 stand merely as declarations and, if expressing the inten- tion of the owner of personal property that it should pass to another after his death, they would be testa- mentary in character and, unless executed formally in the manner required by the statutes regarding wills, would be ineffective to convey any interest in the property.*® § 211. The Same Subject: The Reason Given for the Rule. The reason given in many decisions for holding that .declarations of an alleged donor, unaccompanied by de- livery, to the effect that some designated person is to have his property after his death, are testamentary in character, is that there has been no transfer of ownership or title. It was said in one case: "There must be a deliv- ery of the property to the donee, or some one for him, at the time of the gift, and the title, though a defeasible one, must vest as of the time of the gift; otherwise the donor's declarations will be considered as testamentary only."®'' In another case it was said: "Inasmuch as there was no delivery of the notes in question to the appellant, the ownership of the notes remained in the deceased, and was in the deceased, at the time of his death."" 49 In re Liphart, 227 Fed. 135; 89 Va. 1', 37 Am. St. Rep. 848, 18 Basket v. Hassell, 107 U. S. 602, L. R. A. 170, 15 S. E. 389. 27 L. Ed. 500, 2 Sup. Ct. 415; In Johnson v. Colley, 101 Va. Lounsberry v. Boger, 193 111. App. 414, 99 Am. St. Rep. 884, 44 S. E. 384; Miller v. JefCress, 4 Gratt. 721, it was held that by "testa- (Va) 472; Thomas's Admr. v. mentary" is meant that no title Lewis, 89 Va. 1, 37 Am. St. Rep. *^ *° ^^^^ ^ ^^^ ^"^^^ "°til the death of the donor; therefore if a 848, 18 L. R. A. 170, 15 S. E. 389; Johnson v. Colley, 101 Va. 414, gift is in the nature of a testa- ment, it must be executed in the 99 Am. St. Rep. 884, 44 S. E. 721. ^^^^^^ prescribed for the execu- 50 In re Liphart, 227 Fed. 135, tion of wills, citing Thomas's Admr. v. Lewis, 5i Lounsberry v. Boger, 193 111. 246 COMMENTAEIES ON THE LAW OF WILLS. §212. The Same Subject: Criticism. I have heretofore referred to the confusion in the lan- guage of decisions as to the time when a donation mortis causa takes eft'ect.®^ One of the elements necessary to constitute such a gift is delivery of the property by the donor, the title of the donee being merely inchoate until the donor's death, at which time it becomes absolute. It may therefore be said that a gift mortis causa is one not to take effect until the donor's death, but it becomes effective at such time as a gift, not as a testament. A more proper explanation to the authpr's mind would be, and it is in accord with the facts in the cases referred to, that the declarations and admissions of an alleged donor, unaccompanied by delivery, to the effect that certain personal property owned by him is to go to some desig- nated person at his death, are insufficient to sustain a donation mortis causa, for the reason that an essential element of such a gift is lacking, namely, delivery.^^ Acts, declarations, or admissions expressing an intention to App. 384. See, also, Basket v. Has- Trust Co., 245 Pa. St. 349, 91 Atl. sell. 107 U. S. 602, 27 L. Ed. 500, 634. 2 Sup. Ct. 415. A trust of personal property B2 See, ante, § 204. may be declared orally. There- B3 A deed of conveyance of per- fore it is held, for instance, that Bonal property to a trustee in trust if a decedent had, during his life- to collect the Income and pay it time, deposited money with some to the settlor for life and at her bank with the declaration that the death to pay an annuity to a niece deposit was made in trust for and the balance to the trustee some designated person and that herself, the settlor reserving the at his death the depositary was right at any time during her life to deliver it to the beneficiary and at her discretion to revoke named, the depositor having re- the trust in whole or in part, served the right to collect the there having been a proper deliv- interest during his lifetime, there ery, was held not to be testamen- having been a delivery, such a tary. See Windolph v. Girard transaction is a completed gift DONATIONS MORTIS CAUSA. 247 pass property at death are in their nature testamentary; they do not partake of that character merely because of an association with an alleged gift which fails for lack of delivery, since it would have to be said that, delivery and the other essential elements of a gift being present, the testamentary force of such acts, declarations or ad- missions is lost, for the transaction then takes effect as a gift and not as an attempted legacy or testamentary dis- position. It may better be said that donations mortis causa take effect as such only when the conditions nec- essary to their validity are present, and as to declara- tions and admissions, although they are admissible in evidence as tending to show intent or to corroborate other testimony, yet standing alone they are insufficient to establish one of the principal essentials of such a gift, delivery, without which there can not be a donation mor- tis causa. This reasoning would stand true whether it is assumed that the title to the property which is the subject of a gift mortis causa passes with delivery, sub- ject to be defeated in the event of certain contingencies, or whether the title does not pass absolutely until the death of the donor. As to testamentary declarations, standing by themselves, to be effective they must be ex- pressed according to the formalities required for the exe- cution of wills. § 213. A Trust Is Not Created hy an Imperfect Gift : Enforce- ment of a Valid Gift. An express trust of personal property need not be in writing. It may be created by actions or proper dec- larations on the part of the trustor, and such a trust, Inter vivos, and such gifts are See Boyle v. Dinsdale, 45 Utah not invalid upon the ground that 112, 143 Pac. 136. they are testamentary dispositions. 248 COMMENTARIES ON THE LAW OF WILLS. althougli voluntary when fully completed, will be en- forced in equity. The trustor himself may act as trustee, the intervention of a third person being unnecessary. But in order that a valid trust may exist, the maker must declare the specific purposes of the trust and that the property, or some interest therein, is granted for such purposes ; and the subject matter and the beneficiary of the trust must be definite. Imperfect or unexecuted gifts of personal property, therefore, can not create a trust. Courts of equity will not compel a person to complete a gift of personal property which he has declared an inten- tion of making but did not perfect, and likewise courts of equity will refuse to compel the personal representatives of a deceased to complete an alleged donation mortis causa.^* Where, however, the subject of a donation mor- tis causa was a chose in action, such as a promissory note of some person other than the donor, which was delivered unendorsed to the donee, the executor of the donor's estate may be compelled to allow the use of his name in a suit for the collection of the debt. This matter was dealt with at length in an early case, in an opinion rendered by Lord Eldon.^^ In a New York case, Judge Gridley, commenting upon Lord Eldon's opinion, says: 54 Northrip v. Burge, 255 Mo. denced by a writing, . . . may 641, 164 S. W. 584; Clay v. Layton, fail because no delivery is proved." 134 Mich. 317, 96 N. W. 458; O'Gor- In such a case the court will not man v. Jolley, 34 S. D. 26, 147 allow it to take effect as a declara- N. W. 78. tion of trust. See O'Gorman v. "Nor will the court enforce as Jolley, 34 S. D. 26, 147 N. W. 78, a trust a transaction which was quoting and citing Wadd v. Hazel- intended as a gift, but is imper- ton, 137 N. Y. 215, 33 Am. St. Rep. feet for that purpose." See Nor- 707, 21 L. R. A. 693, 33 N. E. 143. way Savings Bank v. Merriam, 88 B5 Duffield v. Elwes, 1 Bligh, Me. 146, 33 Atl. 840. N. S. 497. And "an intention to give, evi- DONATIONS MORTIS CAUSA. 249 "The principle established in this case is, that in the case of a gift of a bond, or mortgage, there is a trust raised which a court of equity -will enforce, by compel- ling the executors to allow the use of their names in legal proceedings necessary to enforce the security against the debtor, for the purpose of carrying out the intention of the donor. In this respect there is a manifest distinction between a gift inter vivos and a donation mortis causa. In the former case a court of equity will not compel the donor to complete his gift, nor an executor to complete the gift of his testator; whereas, as we have seen, in the latter case, the donor may successfully invoke a court of chancery for that purpose."^" This, however, refers only to enforcing a completed gift mortis causa, not one which must fail because some essential element is lacking. §214. Trusts or Conditions Attached to Donations Mortis Causa. A donor may attach conditions to a gift mortis causa which will not affect its validity, such as, "Take this, Jim; when I am gone draw the money, put a monument over my brother Stillman's grave, pay my funeral ex- penses, and the rest is yours." This language accom- panied a gift of two hundred dollars and was held not to affect its validity as a donation mortis causa.^'' The same ruling was had in another case where this language was used: "Now keep this, and if anything happens to 56 Harris v. Clark, 2 Barb, action on a note could be brought (N. Y.) 94, 98, 99. See, also, Hal- by the administrator of the donor's lowell Savings Inst. v. Titcomb, 96 estate, since the donor held title Me. 62, 69, 51 Atl. 249; Davis v. to it until his death, and therefore Ney, 125 Mass. 590, 28 Am. Rep. died entitled to do so. 272. S'^ Larrabee v. Hascall, 88 Me. In Bates v. Kempton, 7 Gray 511, 51 Am. St. Rep. 440, 34 Atl. (Mass.) 382, it was held that an 408. See, also, Hills v. Hills, 8 250 COMMENTARIES ON THE LAW OF WILLS. me, bury me decently, and put a headstone over me, and anything that is left is yours. "^* In such a case the gift is valid, but is coupled with a trust or condition which the donee must fulfill. § 215. Delivery and Continued Absence of Control Are Essen- tial. Delivery of the personal property which was the sub- ject matter of a donation mortis causa was not required under the civil law, but the rule today is not only that delivery is necessary, but the possession of the property must not return to the donor. Delivery may be either actual or constructive, but it must be as complete a de- livery as is possible according to the character of the property, and all control and doininion of the subject matter of the gift must pass from the donor.®® As to delivery, there is no difference between gifts mortis causa and gifts inter vivos, delivery in both cases being absolutely essential.*" Mees. & Wels. 401; Clough v. 123 Mich. 44, 81 N. W. 930 ; Lerche Clough, 117 Mass. 83; Dresser v. v. Kishpaugh, 180 Mich. 617, 147 Dresser, 46 Me. 48. N. W. 499; Grouse v. Judson, 41 68 Curtis V. Portland Savings Misc. Rep. 338, 84 N. Y. Supp. 755; Bank, 77 Me. 151, 52 Am. Rep. 750. Gardner v. Gardner, 22 Wend. 59Bunn V. Markham, 7 Taunt. (N. Y.) 526. 34 Am. Dec. 340; Irish 224; Reddell v. Dobree, 10 Sim. v. Nutting, 47 Barb. (N. Y.) 370; 244; Miller v. Miller, 3 P. Wms. Clapper v. Frederick, 199 Pa. 609, 356; Appeal of Colburn, 74 Conn. 49 Atl. 218; O'Gorman v. JoUey, 463, 92 Am. St. Rep. 231, 51 Atl. 34 S. D. 26, 147 N. W. 78; Spoon- 139; Cowdrey v. Barksdale, 16 Ga. er's Admr. v. Hilbish's Exr., 92 Va. App. 387, 85 S. E. 617; In re 333, 23 S. E. 751; Phinney v. State, Elliott's Estate, 159 Iowa 107, 140 36 Wash. 236, 68 L. R. A. 119, 78 N. W. 200; Hatch v. Atkinson, 56 P^c. 927;Dickeschied t. Exchange Me. 324, 96 Am. Dec. 464; Pen- Bank, 28 W. Va. 340. nlngton v. Glttings, 2 Gill & J. so Noble v. Smith, 2 Johns. (Md.) 208; Casserly v. Casserly, (N. Y.) 52, 56, 3 Am. Dec. 399; DONATIONS MOETIS CAUSA. 251 § 216. Delivery to a Third Person for the Benefit of the Donee. It is not necessary that delivery be made direct to the donee. If the donor clearly expresses his intention to make the gift to a designated person and, to carry out such intention, delivers the personal property to some third person for the benefit of the intended donee, he not being present at the time to receive the gift, the donor has made as complete a delivery as is possible under the circumstances and, unless proof to the contrary is shown, it will be presumed that the person receiving tbe property took the same as a trustee for the donee ' and not as the agent of the donor. Delivery to the donee being good, there is no reason why delivery to a third person for tbe benefit of the donee should not likewise be valid ; there must, of course, be acceptance by the donee.®^ And so, too, the depositing in the United States mail of an envelope, duly addressed to the donee, containing a letter, and a chose in action intended as a, donation mor- tis causa, is a sufiicient delivery to the agent of the donee, it having passed out of the control of the donor.''^ Harris v. Clark, 3 N. Y. 93, 51 Am. Yancy v. Field, 85 Va. 756, 8 S. B. Dec. 352; Murdock v. McDowell, 1 721. Nott & McC. (S. C.) 237, 239, 9 ei Drury v. Smith, 1 P. Wms. Am. Dec. 684. 404; Devol T. Dye, 123 Ind. 321, It is delivery which converts an 7 L. R. A. 439, 24 N. E. 246; Ses- unexecuted and revocable purpose sions v. Moseley, 4 Gush. (Mass.) into an executed and complete 87; Shackleford v. Brown, 89 Mo. gift. See Hart v. Ketchum, 121 546, 1 S. W. 390; Grymes v. Hone, Cal. 426, 53 Pac. 931; Cutting v. 49 N. Y. 17, 10 Am. Rep. 313; Oilman, 41 N. H. 147; Emery v. Williams v. Guile, 117 N. Y. 343, Clough, 63 N. H. 552, 56 Am. Rep. 349, 6 L. R. A. 366, 22 N. E. 1071; 543, 4 Atl. 796; Walsh's Appeal, Wells v. Tucker, 3 Bin. (Pa.) 366; 122 Pa. St. 177, 9 Am. St. Rep. 83, Johnson v. Colley, 101 Va. 414, 1 L. R. A. 535, 15 Atl. 470; Miller 99 Am. St. Rep. 884, 44 S. E. 721. V. Jeffress, 4 Gratt. (Va.) 472; 62 United States v. Nutt, 6 Am. 252 COMMENTARIES ON THE LAW OF WILLS. But delivery to a third person as the agent of the donor is not sufficient, since the giver has not parted with the control of the property."* § 217. Delivery Where the Property Is in the Possession of the Donee. Where the personal property which is sought to be made the subject of a donation mortis causa is in the possession of the donee, such a gift may be sustained where the evidence is very clear and convincing that the donor intended, and declared his intention, to make the gift, and the donee accepted the same and retained the exclusive possession of the property. In such a case actual delivery is lacking, but the donor makes as com- plete a delivery as is possible under the circumstances.®* § 218. Cancellation of a Debt. A debt, evidenced by some writing or secured by a de- posit of some character, may be the subject of a donation mortis causa between the creditor and the debtor by the creditor surrendering to the debtor evidence of the in- debtedness or the security, with a declaration of intention to that effect.*" Law Rec. 302, Fed. Cas. No. 15904; 101 N. W. 165, distinguishing Allen Commonwealth v. Wood, 142 Mass. v. Allen, 75 Minn. 116, 74 Am. St. 459, 8 N. E. 432; Kennedy v. Dr. Rep. 442, 77 N. W. 567. David Kennedy Corp., 66 N. Y. But see contra: Drew v. Ha- Supp. 225, 32 Misc. Rep. 480; Bain- ggrty, 81 Me. 231, 10 Am. St. Rep. bridge v. Hoes, 149 N. Y. Supp. 255, 3 L. R. A. 230, 17 Atl. 63. 20, 163 App. Div. 870. ^^^^^^^ ^ ^^^^^^ ^ ^^^ ^ esFarquharson v. Cave, 2 Coll. g^ ^q. 134; Meredith v. Watson. 356- 23 Eng. L. & Bq. 250. 64 Davis V. Kuck, 93 Minn. 262, DONATIONS MORTIS CAUSA. 253 § 219. Constructive or Symbolic Delivery. Constructive delivery of the personal property wMcli is the subject of a gift mortis causa, is sufficient when such property by reason of its character or situation can not be actually delivered.®® Thus, where moneys or secu- rities are in a safe deposit box and not attainable at the time, the transfer of the key by the donor to the donee is a symbolic delivery and sufficient; this, even though a second key is in the possession of the bank and its use is necessary in order to secure possession of the contents of the box. By delivery of the key the donor parts with the means of access to the property."^ Delivery of a key is sufficient to pass to the donee the contents of a trunk or box not within the presence of the donor, actual deliv- ery at such time being impossible."^ But if the box con- taining the subject matter of the gift w.ortis causa is ac- cessible at the time to the donor, such as being kept in a secretary in the room wherein he is confined, the mere handing of the key to another without words of gift would make the receiver simply a custodian of the key and, where the subject matter of the gift is capable of being delivered, the delivery of a key to the box or recep- tacle wherein it is contained is insufficient.*® 66Cowdrey v. Barksdale, 16 Ga. Hun (N. Y.) 433, 8 N. Y. Supp.^ App. 387, 85 S. E. 617. 728; Pink v. Church, 60 Hunt 67 Harrison v. Foley, 206 Fed. (N. Y.) 580, 14 N. Y. Supp. 337. [ " 57, 124 C. C. A. 191. See, also, 69 Knight v. Tripp, 121 Cal. 674,-i Debinson v. Emmons, 158 Mass. 54 Pac. 267; Hatch v. Atkinson, 592, 33 N. E. 706; Marsh v. Fuller, 56 Me. 324, 96 Am. Dec. 464; Keep-' 18 N. H. 360; Jones v. Brown, 34 ers v. Fidelity, Title & Deposit' N. H. 439; Thomas's Admr. v. Co., 56 N. J. L. 302, 44 Am. St. Rep. Lewis, 89 Va. 1, 37 Am. St. Rep. 397, 23 L. R. A. 184, 28 Atl. 585; 848, 18 L. R. A. 170, 15 S. E. 389. Gano v. Pisk, 43 Ohio St. 462, 54 68 Cooper V. Burr, 45 Barb. Am. Rep. 819, 3 N. E. 532. (N. Y.) 9; Phipard v. Phipard, 55 Where one, just prior to going 254 COMMENTAEIES ON THE LAW Oi" WILLS. § 220. A Writing, Without Delivery of the Property, Will Not Sustain a Donation Mortis Causa. The mere declaration by an alleged donor of his desire or intention to make a donation mortis causa, if unac- companied by delivery, will not sustain such a gift; and this is true whether the declaration be oral or in writ- ing. The delivery of the property, either actual or con- structive, is essential. Thus, the delivery of a bill of sale of household furniture, wearing apparel, and all other personal property owned or held by the grantor in a certain house, possession not passing to the alleged donee, has been held not to sustain a gift mortis causa.'"' A writ- ten instrument may be an aid in corroborating other tes- timony introduced to establish the gift; it may help to designate the property and to show the intention of the donor ; but standing alone it does not establish a donation mortis causa any more than would oral declarations of the same character. Such gifts are effected only by, and take effect from, the delivery, either actual or construc- tive.''^ The same rule applies to certificates of stock, bonds, and the like, which have been endorsed in favor of some designated person but not delivered ; the most that can be said of such an endorsement is that it shows that to a hospital, Inspected the con- See Newsome v. Allen, 86 Wash. tents of her safe deposit box in 678, 151 Pac. 111. company with her sister, to whom '"> Knight v. Tripp, 121 Cal. 674, she delivered the key to the box, 54 Pac. 267. at the same time instructing the Compare: Ward v. Turner, 2 manager that if she didn't come I^^.'JTJ^^' **°= "^''^°'°" ""• ^ , XV i 4. 4.*!, 1, Smith, 1 Ves. Sen. 314; Tate v. back, the contents of the box were ^^^^^^^ ^ ^^^ j^^ ^2P_ ^^^ ^^^ to be delivered to the sister, the j^.^^^^ ^_ y^jj-^^^ 2 Ves. Sen. 258. contents not being too unwieldy j^^ to testamentary declarations, to have been actually delivered, it gee, ante, § 210. was held that the facts did not 7i McGrath v. Reynolds, 116 sustain a donation mortis causa. Mass. 566. DONATIONS MORTIS CAUSA. 255 the owner of the property intended to make a gift hut which, being voluntary and without consideration and in- complete, was not biudingj* § 221. Choses in Action as the Subject of a Donation Mortis Causa: Changes in the Rule. The rule as to the personal property which might be disposed of by a donation mortis causa has undergone many changes. Originally only chattels which could be actually delivered by hand could be the subject of such a 72 In Bragg v. Martenstein, 25 Cal. App. 199, 143 Pac. 79, where the evidence showed that the de- cedent had placed certain stocks and bonds duly endorsed In four separate envelopes and upon each had written the name of one of her sisters with the statement that the enclosure was the property of such sister, had then enclosed each of these envelopes in another en- velope, had made a will disposing of the remainder of her property but omitting all reference to the stocks and bonds, and which en- velopes had been left in an open desk in her room to which her father had access and from which some four days before her death her father had taken the envel- opes and delivered them to the sisters of decedent without men- tioning the fact to her because of her ill health, although these en- velopes were enclosed in the paper on which was endorsed "In case of my death to be opened only by R. B., St., or R. B. M.," it being signed and dated by the decedent. it was held that a gift mortis causa was not established; that the wrapping on the outside of the envelopes had reference only to the persons who should open the package in the event that they were not delivered prior to the death of the donor, and that such writing had no reference to de- livery. In Fauley v. McLaughlin, 80 Wash. 547, 141 Pac. 1037, it was held that a letter written by one just prior to an operation, not mailed, but found among the val- uable effects of the writer after his death about a year and a half later, showed only an intention to give at the date the letter was written, but there having been no delivery of the letter or the prop- erty, a donation mortis causa could not be sustained. In O'Gorman v. Jolley, 34 S. D. 26, 147 N. W. 78, a certificate of deposit had the following writing pasted on the back: "This cer- tificate and the interest thereon is my property during the remainder 256 COMMENTAEIES ON THE LAW OF WILLS. gift; then the rule was extended to include securities such as bank-notes, notes payable to bearer or order and duly endorsed ; later it included choses in action evi- denced by a writing where the interest which it repre- sented was transferred; and subsequently was extended to nok-negotiable notes or negotiable notes not endorsed, but which were delivered.''* The decisions are not en- of my life. In the ifivent of my death, I hereby authorize and instruct the bank to pay and dis- tribute the amount of said cer- tificate of deposit as follows:" Then followed the names of some fifteen persons to whom payments were to be made, with the follow- ing: "I direct that the certificate be handed Father Flood, Immedi- ately after my death, and the above conditions be fulfilled." The writing was signed by the dece- dent. The certificate, with the writing attached, was taken by Father Flood, but was returned to the deceased at her request a few days later, she retaining it until her death. The court said in effect that the execution of the writing on the back of the cer- tificate was of no more force than if the amount of money mentioned had been enclosed in an envelope and the same writing had been endorsed thereon; that control of the property having returned to the donor, the most that could be said of the transaction was that it was an agreement to make a gift which, being without a con- sideration, is not binding. In Gray v. Doubikin, 188 Mo. App. 667, 176 S. W. 514, where a father, just prior to an operation, assigned certain certificates of stock to his son, at the same time declaring that if he did not sur- vive he wished the stock to be divided among his children, there having been no delivery, it was held that the facts did not sustain a gift mortis causa. See, also, Edwards v. Jones, 1 Mylne & Cra. 226; Stokes v. Sprague, 110 Iowa 89, 81 N. W. 195; Lounsberry v. Boger, 193 111. App. 384; Godard v. Conrad, 125 Mo. App. 165, 101 S. W. 1108; Foley v. Harrison, 233 Mo. 460, 136 S. W. 354. But see Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313, where an assignment in writing, made by a donor who gave it to his wife to deliver it to his granddaughter, although not accompanied by a delivery of the certificates of stock so assigned, was held sufficient to transfer all interest out of the donor, that the donee became the equitable owner of the stock, and that the representatives of the donor became, by operation of law, trustees for the donee. 73 Ward V. Turner, 2 Ves. Sen. 431; Jones v. Selby, Preced. Ch. DONATIONS MORTIS CAUSA. 257 tirely harmonious, but the general rule in England and in the United States is that if one delivers property to another so that there has been a transfer to the receiver of the legal or equitable title to the property or the fund which it represents, the other essential elements of the gift being present, it is sufficient. Thus, non-negotiable notes, bonds, mortgages, certificates of stock, and the like, have been held proper subjects for donations mortis causa.''* § 222. The Same Subject : Where Endorsement Precludes Pay- ment Until After the Donor's Death. In order that a chose in action may be the subject of a completed donation mortis causa, it must represent some subsisting obligation and must be delivered to the donee so as to vest him with an equitable title to the fund which the writing represents ; and at the same time all control or dominion over it, on the part of the donor, must cease. Any delivery which does not give the donee the right of 300; Miller v. Miller, 3 P. Wms. Pfeifer v. Badenhop, 86 N. J. L. 356; Hill v. Chapman, 2 Bro. C. C. 492, 92 Atl. 273; Ridden v. Thrall, 612; Hurst v. Beach, 5 Madd. 351; 125 N. Y. 572, 21 Am. St. Rep. 758, Duffleld T. Elwes, 1 Bligh, N. S. 11 L. R. A. 684, 26 N. E. 627; Til- 497; In re Mead, L. E, 15 Ch. Div. linghast v. Wheaton, 8 R. I. 536, 651; Moore v. Moore, L. R. 18 Eq. 5 Am. Rep. 621, 94 Am. Dec. 126. 474; Camp's Appeal, 36 Conn. 88, A certificate of stock in a 4 Am. Rep. 39; Sessions v. Mose- Georgia company, stating that the ley, 4 Cush. (Mass.) 87; Bates v. owner was entitled to so many Kempton, 7 Gray (Mass.) 382; shares, or acres of land, granted to Parish v. Stone, 14 Pick. (Mass.) the company, was held a mere 198, 25 Am. Dec. 378; Chase v. chose in action and therefore it Redding, 13 Gray (Mass.) 418; could be the subject of a gift. — Kingman v. Perkins, 105 Mass. Blake v. Jones, 1 Bailey Eq. (S. C.) Ill; Pierce v. Boston Five Cents 141, 21 Am. Dec. 530. Sav. Bank, 129 Mass. 425, 37 Am. 74 Johnson v. Spies, 5 Hun Rep. 371; Caldwell v. Goodenough, (N. Y.) 468; Walsh v. Sexton, 55 170 Mich. 114, 135 N. W. 1057; Barb. (N. Y.) 251; Westerlo v. I Com. on Wills— 17 258 COMMENTAEIES ON THE LAW OF WILLS. reducing the fund to possession is not sufficient. Where the donee can obtain possession of the property repre- sented by a writing only after the donor 's death, as, for instance, where the endorsement on the instrument is to that effect, the transaction is testamentary in character and is not good as a donation mortis causaJ^^ In a leading case the following facts were in evidence : A decedent, in apprehension of death, wrote as follows on the back of a certificate of deposit : "Pay to Martin Basket of Hender- son, Kentucky; no one else; then not till my death. My life seems to be uncertain. I may live through this spell. Then I shall attend to it myself." The certificate in ques- tion was payable on demand and was delivered to the alleged donee. The court said that if the certificate had been endorsed in blank, or there had been no special en- dorsement to the donee, or if it had been without any endorsement, and had been delivered to the donee, it would have transferred the title of the donor to the fund represented by the certificate and would have enabled the donee to have reduced the fund into actual possession. If the donee had obtained possession of the fund and the donor had thereafter revoked the gift, the donee would have simply returned the money instead of the certificate. But where the delivery of a certificate of deposit is accom- panied by an endorsement which qualifies or limits the authority of the donee to collect the money, as in this case where it could not be collected until after the death DeWitt, 36 N. Y. 340, 93 Am. Dec. 324, 96 Am. Dec. 464; Wing v. 517; Champney v. Blanchard, 39 Merchant, 57 Me. 383; Coleman v. N. Y. 111. Parker, 114 Mass. 30; McWUlie v. 75 Powell V. HelHcar, 26 Beav. Van Vacter, 35 Miss. 428, 72 Am. 261; Reddel v. Dobree, 10 Sim. Dec. 127; Egerton's Exrs. v. Eger- 244; Bunn v. Markham, 7 Taunt, ton, 17 N. J. Eq. 419. 224; Hatch v. Atkinson, 56 Me. DONATIONS MORTIS CAUSA. 259 of the donor, no interest in the fund can pass with deliv- ery ; by the terms of such an endorsement the title remains in the donor until his death and the donee can not obtain possession until that time. Delivery of the possession of the fund is therefore impossible under such circum- stances. Such an endorsement on the certificate is merely a check upon the bank against a fund in which the donee, by the terms of the endorsement, can acquire no interest until after the donor's death.''^ As was said in another case, ' ' The transfer of the ownership of property, to take effect at the death of the donor, is, in effect, a testamen- tary disposition of such property, and to make such dis-! position valid, the statutory requirements concerning the execution of wills must be observed and carried out."''''; § 223. Deposits in Savings Banks : Delivery of Pass Book. Deposits in savings banks are very commonly trans- ierred as donations mortis causa, the weight of authority 76 Basket v. Hassell, 107 U. S. In Lounsberry v. Boger, 193 III. 602, 27 L. Ed. 500, 2 Sup. Ct. 415. App. 384, the following endorse- In Mitchell V. Smith, 4 De Gr. J. ment on five promissory notes & S. 422, where the following en- which were never delivered, al- dorsement was put on some prom- though the deceased had told the issory notes: "I bequeath . . . makers of the notes, after his pay the within contents to Simon death to be sure to look at the Smith, or his order, at my death," endorsement on the notes and to Lord Justice Turner said: "In pay them to the party there men- order to render the endorsement tioned, the endorsement reading: and delivery of a promissory note "" t^*s note is not paid until my effectual they must be such as to ^^ath, pay to the order of S. L.," enable the endorsee himself to endorse and negotiate the note. and which endorsement had been duly signed by the deceased, was held insufficient to constitute a That the respondent, Simon Smith, ^.^^ ^^^^ ^^^^^ ^^^^ ^^^^^ ^^^^^^ could not have done during the ^ Sprague, 110 Iowa 89, 81 N. W. testator's life." It was accord- 195. o'Gorman v. Jolley, 34 S. D. ingly held that the disposition of 26, 147 N. W. 78. the notes was testamentary and 77 Lounsberry v. Boger, 193 111. invalid. App. 384. 260 COMMENTARIES ON THE LAW OP WILLS. being that the gift of such a deposit by delivery of the pass book is a valid and complete gift of the fund which it represents. Savings banks accounts are peculiar in their nature since a pass book is issued to a depositor and stands as the security and evidence of the indebted- ness of the bank to him. This pass book must be pre- sented to the bank when money is deposited or with- drawn, all deposits and withdrawals are entered therein and the pass book serves the same purpose as a certificate of deposit ; therefore in itself it stands as some evidence of title. The delivery of the pass book is essential and it must be accompanied by the declaration of the donor of his intention to make a present gift rather than a testamentary disposition, but no order or assignment is necessary.''* A mere order for the payment to the donee of a savings bank deposit unaccompanied by a delivery I 78 Basket v. Hassell, 107 tJ. S. Caldwell v. Goodenough, 170 Mich. 602, 37 L. Ed. 500, 2 Sup. Ct. 415; 114, 135 N. W. 1057; Kimball v. Camp's Appeal, 36 Conn. 88, 4 Leland, 110 Mass. 325; Loucks v. Am. Rep. 39; In re Gulnan's Johnson, 70 Hun 565, 24 N. Y. Appeal, 70 Conn. 342, 39 Atl. Supp. 267; Ridden v. Thrall, 125 482; Fagan v. Troutman, 24 Colo. N. Y. 572, 21 Am. St. Rep. 758, App. 473, 135 Pac. 122; Whalen v. li L. R. A. 684, 26 N. E. 627; Mllholland, 89 Md. 199, 207, 44 Polley v. Hicks, 58 Ohio St. 218, L. R. A. 208, 43 Atl. 45; Brewer v. 41 L. R. A. 858, 50 N. E. 809; Bowersox, 92 Md. 567, 571, 48 Atl. Crook v. First Nat. Bank, 83 Wis. 1060; Frentz v. Schwarze, 122 Md. 31, 35 Am. St. Rep. 17, 52 N. W. 12, 89 Atl. 439; Parish v. Stone, 1131. 14 Pick. (Mass.) 198, 25 Am. Dec. See, contra: Pace v. Pace, 107 378; Grover v. Grover, 24 Pick. Miss. 292, 65 So. 273. (Mass.) 261, 35 Am. Dec. 319; Compare the reasoning of the Keed v. Whipple, 140 Mich. 7, 103 following cases, wherein an order N. W. 548; State Bank of Croswell for the deposit accompanied the T. Johnson, 151 Mich. 538, 115 delivery of the bank book: Larra- N. W. 464; Union Trust and Sav. bee v. Hascall, 88 Me. 511, 51 Am. Bank v. Tyler, 161 Mich. 561, 137 St. Rep. 440, 34 AU. 408, where Am. St. Rep. 523, 126 N. W. 713; the order was for only a portion DONATIONS MORTIS CAUSA. 261 of the pass hook has been held insuJB&cient to establish a gift since the depositor or any other person "with an order for the payment of the money, could have drawn the account from the bank upon presentation of the bank book irrespective of the fact of the outstanding order.''' But where there has been delivery of the pass book of a savings bank account, a by-law of the bank requiring an order or a power of attorney from the depositor in order of the deposit; Foley v. New York Sav. Bank, 142 N. Y. Supp. 822, 157 App. Div. 868, where the or- der was for the full amount of the deposit In some cases the courts have attempted to distinguish between an assignment of a full account and an assignment of a portion only, holding that in the first in- stance it was more the transfer of a specific fund, while in the latter case it was merely an order to collect money. On the same subject, see, also, Harris v. Clark, 3 N. Y. 93, 114 et seq., 51 Am. Dec. 351. 79 Conser v. Snowden, 54 Md. 175, 39 Am. Rep. 368. In Pfeifer v. Badenhop, 86 N. J. L. 492, 92 Atl. 273, the evi- dence showed that a party asked for his savings bank book and upon learning that it was in a safe at his brother's house, executed a printed form of draft furnished by the hank. This draft had printed at the top thereof the words: "No payments made without deposit book." The executed draft directed the bank to pay to "my father and mother (or bearer) all my money (Dollars or Pass Book No.) 172959," the parts in brackets be- ing in print. The bank book not having been delivered, the gift failed. As to an order for only a part of a debt or fund constituting an equitable assignment of the amount, see: Basket v. Hassell, 107 U. S. 602, 27 L. Ed. 500, 2 Sup. Ct. 415; National Exchange Bank v. McLoon, 73 Me. 498, 40 Am. Rep. 388; Roberts v. Noyes, 76 Me. 590; Home v. Stevens, 79 Me. 262, 9 Atl. 616; Dana v. Third Nat'l Bank, 13 Allen (Mass.) 445, 90 Am. Dec. 316 ; James v. Newton, 142 Mass. 366, 56 Am. Rep. 692, 8 N. E. 122; Brill v. Tuttle, 81 N. Y. 454, 37 Am. Rep. 515. As to an order for the full amount of a deposit, with the de- livery of the bank book, being a valid transfer of the funds repre- sented thereby without further notice or even an acceptance of the order by the bank, see: Kim- ball V. Leland, 110 Mass. 325; Foss V. Lowell Five Cents Savings Bank, 111 Mass. 285. 262 COMMENTARIES ON THE LAW OF WILLS. that a third person may draw out any of the money standing in the account will not defeat the gift. The owner of the account may draw it from the bank by pre- senting the pass book ; if the account is sold by the depos- itor to another, the bank could not require the owner to produce a power of attorney, but could require him to produce satisfactory proof of the ownership of the book and the account. The same rule would apply as in the case of a gift of a non-negotiable chose in action, a cer- tificate of deposit or an unendorsed note.^* But proof of all the essential elements of a donation mortis causa, such as apprehension of death, and the gift in contem- plation thereof, delivery, and the death of the donor without having revoked the gift, also proper proof by the donee of his right to the account and ownership thereof, are necessary,^^ and such proof must be clear, strong and satisfactory.®^ § 224. Promissory Notes as the Subject of the Gift. There is an apparent conflict of opinion as to whether a promissory note or a check on a commercial bank may be the subject of a donation mortis causa. It was for- merly held that a promissory note payable to the order of some designated person could not be the subject of a gift mortis causa by the mere delivering of the same without an endorsement;®* although it was otherwise if 80 Ridden v. Thrall, 125 N. Y. Jones, 74 App. Div. 54, 77 N. Y. 572, 21 Am. St. Rep. 758, 11 L. R. A. Supp. 213; Devlin v. Greenwich 684, 26 N. B. 627. Sav. Bank, 125 N. Y. 756, 26 N. E. 81 Danzlnger v. Seamen's Bank 744. for Savings, 149 N. Y. Supp. 207, 83 Miller v. Miller, 3 P. Wms. 86 Misc. Rep. 316. 356; Bradley v. Hunt, 5 Gill & J. 82 Matter of Swade, 65 App. Div. (Md.) 54, 23 Am. Dec. 597. 592, 72 N. Y. Supp. 1030; Lahr v. DONATIONS MORTIS CAUSA. 263 the note "was made payable to bearer.** This rule, how- ever, is contrary to the weight of modern authority and the general rule now is that a promissory note, whether payable to bearer or not, and though unendorsed, may pass by delivery and is the proper subject of a donation mortis causa.^^ This has reference, however, to a promis- sory note executed by some person other than the donor, for if the donor, voluntarily and without consideration, should execute a promissory note in favor of a donee and deliver the same, it would amount to no more than the expression of an intention to make a gift and would be unenforceable.** Of course, should the note before matur- ity pass into the hands of some innocent third person for value, payment of the note might be enforced. § 225. Checks and Drafts: Not Subjects of Gifts Mortis Causa. The rule as to checks and drafts is similar to that of promissory notes of which the donor is the maker. In an early English case a bill for one hundred pounds drawn upon a goldsmith by a person on his deathbed, in favor of his wife and delivered to her and which stated that it was to buy her mourning and maintain herself until her jointure became due, was held good as a gift 84 Parish v. Stone, 14 Pick. Pac. 472; Phinney v. State, 36 (Mass.) 203, 25 Am. Dec. 378. Wash. 236, 68 L. R. A. 119, 78 Pac. 85 Borneman v. Lidlinger, 15 Me. 927. 429, 33 Am. Dec. 626; Bates v. 86 Raymond v. Selllck, 10 Conn. Kempton, 7 Gray (Mass.) 382; 480, 485; Parish v. Stone, 14 Pick. Pierce v. Boston Five Cents Sav. (Mass.) 198, 25 Am. Dec. 378; Bank, 129 Mass. 425, 37 Am. Rep. Copp v. Sawyer, 6 N. H. 386; Har- 371; Blazo v. Cochrane, 71 N. H. ris v. Clark, 3 N. Y. 93, 51 Am. 585, 53 Atl. 1026; Varrlck v. Hitt, Dec. 352; overruling Wright v. 66 N. J. Eq. 442, 57 Atl. 406; Wright, 1 Cow. (N. Y.) 598; Hoi- Baker V. Moran, 67 Ore. 386, 136 ley v. Adams, 16 Vt. 206, 42 Am. Pac. 30; Baher v. Caples, 71 Ore. Dec. 508. 212, Ann. Cas. 1916C, 1025, 138 264 COMMENTAEIES ON THE LAW OP WILLS. mortis causa.^'' This decision has often been questioned. Distinctions have been made between the instruments just mentioned. A promissory note executed by the donor and payable to a donee, or a draft drawn in favor of a donee upon some third party, has been distinguished from a check in that the latter is always drawn on a bank. A draft or bill of exchange generally calls for so much money out of a general fund; it is not an assign- ment of the fund or any part thereof and gives the payee no claim on the drawee unless the latter accepts it. If the draft is drawn on a special or particular fund, the case may be different if the draft is so worded that it is in effect an equitable assignment of the fund.*® But, as we have before seen, a mere assignment standing alone is not sufficient to constitute a gift mortis causa, and a draft would be unenforceable until after its acceptance. As to checks, in the ordinary course of business they are treated as cash and might go into the hands of an inno- cent third person for value, in which event they could be enforced;*^ but if a check remains in the possession of the donee and is not presented to the bank and paid or certified prior to the death of the maker, the gift must fail. This has reference to checks drawn by the donor, not to checks payable to himself and drawn by third 87 Lawson v. Lawson, 1 P. Wms. 88 Harris v. Clark, 3 N. Y. 93, 441. 51 Am. Dec. 352; Curry v. Powers, In the later case of Tate v. Hil- 70 N. T. 218, 26 Am. Rep. 577. bert, 2 Ves. Jun. 120, Lord Loughi- 89 Rolls v. Pearce, L. R. 5 Ch. borough stated that the report of Div. 730; Hewitt t. Kaye, L. R. 6 the above case was inaccurate, Eq. 198; Bromley v. Brunton, L. R. yet, however, he held that the de- 6 Bq. 275; Sheedy v. Roach, 124 cision was correct. See, also: Mass. 472, 26 Am. Rep. 680; Van- Gardner V. Parker, 3 Madd. 184; dermark v. Vandermark, 55 How. Phinney v. State, 36 Wash. 236, Pr. (N. Y.) 408; Harris v. Clark, 68 L. R. A. 119, 78 Pac. 927. 3 N. Y. 93, 51 Am. Dec. 352. DONATIONS MOETIS CAUSA. 265 parties. The fact that it is drawn upon a bank does not seem material. The main point is that a check is merely an order for money and not an equitable assignment of the fund. The weight of authority is that the delivery of a draft or a check to an alleged donee who retains the same until after the maker's death, the draft not having been previously accepted by the drawee or the check not having been certified by the bank, is not sufficient to con- stitute a donation mortis causa.^" §226. The Same Subject: Decisions to the Contrary. It has been held, contrary to the weight of authority, that the delivery of a check by a maker, payable to a donee, which remained in the custody of the donee until after the maker's death, constituted a completed gift mortis causa. Thus, where the check was for a sum greater than the amount on deposit, it was held a valid 90 Amis V. Witt, 33 Beav. 619; Am. Dec. 433; Warren v. Durfree, Hewitt V. Kaye, L. R. 6 Eq. 198; 126 Mass. 338; Walter v. Ford, 74 In re Beak's Estate, L. R. 13 Eq. Mo. 195, 41 Am. Rep. 312; Second 489; Hopkinson v. Forster, L. R. National Bank v. Williams, 13 19 Eq. 74; Jones v. Lock, L. R. 1 Mich. 282; Sanborn v. Sanborn, 65 Ch. App. 25; In re Mead, L. R. 15 N. H. 172, 18 Atl. 233; Fink v. Ch. Div. 651; Basket v. Hassell, Cox, 18 Johns. (N. Y.) 145, 9 Am. 107 U. S. 602, 27 L. Ed. 500, 2 Sup. Dec. 191; Bainbridge v. Hoes, 149 Ct. 415; Florence Mining Co. v. N. Y. Supp. 20, 163 App. Div. 870; Brown, 124 U. S. 385, 31 L. Ed. Curry v. Powers, 70 N. Y. 212, 218, 424, 8 Sup. Ct. 531; Raymond v. 26 Am. Rep. 577; First Nat. Bank Sellick, 10 Conn. 480; McKenzie v. v. Clark, 134 N. Y. 368, 17 L. R. A. Downing, 25 Ga. 669; Graves v. 580, 32 N. B. 38; Holmes v. Roper, SafEord, 41 111. App. 659; Blanch- I4i n. Y. 64, 36 N. E. 180; Hamor ard V. Williamson, 70 111. 647; v. Moore, 8 Ohio St. 239; Estate West V. Cavins, 74 Ind. 265; May of Helfenstein, 77 Pa. St. 328, 18 V. Jones, 87 Iowa 188, 54 N. W. Am. Rep. 449; Brown v. Moore, 231; Conser v. Snowden, 54 Md. 3 Head. (Tenn.) 671; Holley v. 175, 39 Am. Rep. 368; Bullard v. Adams, 16 Vt 206, 42 Am. Dec. Randall, 1 Gray (Mass.) 605, 61 5O8. 266 COMMENTAKIES ON THE LAW OF WILLS. gift for tlie amount on deposit and that the donee was entitled to bring an action against the executors of the estate of the deceased donor for the money which they had drawn out of the bank.®^ Also, in a case where a check was for an amount less than the sum on deposit, but the expenses of administration had caused the estate to be decreased to an amount less than the face of the check, it was held that the check was good as a gift mortis causa for the amount over and above that needed for the expenses of administration; that the deceased had in- tended a gift and that his will should not be thwarted by any technical construction. The court laid down the prin- ciple that where there had been the delivery of a check, accompanied by the intention that a present interest in money which it represented be transferred to the donee and, there having been no revocation, the intention of the donor should be given effect, and that the holder had the right to have the check paid after the death of the maker as well as before, whether it was received as a gift or for a consideration.®^ 91 Aubrey v. O'Byrne, 188 111. 92 Phinney v. State, 36 Wash. App. 601. 236, 68 L. R. A. 119. 78 Pac. 927. Compare: Graves v. Safford, 41 ni. App. 659. CHAPTER XI. PEOPEETY WHICH MAY BE DEVISED OE BEQUEATHED. § 227. Power of testamentary disposition is statutory. § 228. Rules in England prior to the Norman Conquest. § 229. Devises of after-acquired real property. § 230. The same subject: Early rule in the United States. § 231. The intention of the testator determines whether or not after-acquired realty shall pass. §232. The same subject: Intention to dispose of entire estate. §233. The same subject: The general rule. § 234. The same subject : Statutory regulations. § 235. Of what date is a will presumed to speak ? § 236. The same subject : Common law rule. § 237. The same subject : The statute of 1 Victoria, ch. 26, affects only the subject matter disposed of, not the bene- ficiaries. § 238. The same subject : General rule in England. § 239. The same subject : Rule in the United States. § 240. Right of entry : Disseisin : Statutory enactments. § 241. The same subject : May be devised. § 242. Right of re-entry after condition broken : When devis- able. § 243. Contingent interest in real property, where the party who is to take is uncertain. § 244. Interests in lands founded on contracts of sale and pur- chase. § 245. Interests in trust. § 246. Estates pur autre vie. § 247. Right in equity to cancel deed is devisable. § 248. Life estates and joint tenancies : Not devisable. § 249. Estate by the entirety : Not devisable. (267) 268 COMMENTARIES ON THE LAW OF WILLS. § 250. Estates in coparcenary and tenancies in common may be devised. § 251. Community property and rights of dower, curtesy and homestead. § 252. The same subject : Neither husband nor wife can be deprived of their statutory rights. § 253. The same subject : Effect of consent or election to take under the will. § 254. The same subject : Consent, when once given, can not be revoked. § 255. Chattels real : May be bequeathed. § 256. Interests of mortgagor and mortgagee : How considered. § 257. Choses in action and other personal property. § 258. Benefits arising from a policy of life insurance : Dis- » tinguishing features. § 259. The same subject : "When payable to the estate of the insured, for the benefit of his wife and children. § 260. The same subject : When payable to a specified benefi- ciary. § 261. Benefits accruing from membership in mutual benefit societies. § 262. Claims against the government : When they may be be- queathed. § 263. Limitations upon devises for charitable purposes. § 264. No property right in a corpse : Right of burial. § 227. Power of Testamentary Disposition Is Statutory. The power of disposing of property by will to take effect upon the death of the testator, is not a natural right, but a statutory one ;^ but where the right to devise or bequeath property is given, such right may be exer- 1 Northern Trust Co. v. Buck & 101 N. E. 485; Porter v. Union Rayner, 183 111. App. 170, affirmed Trust Co. of Indianapolis, 182 Ind. In 263 111. 222, 104 N. E. 1114; 637, 108 N. E. 117; Breadheft v. Donaldson v. State> 182 Ind. 615, Cleveland, (Ind.) 110 N. E. 662. PROPERTY WHICH MAY PASS. 269 cised in any manner not unlawful or in contravention of some statute. When a will has been legally executed, the court can not control matters which were within the dis- cretion of the testator, or change the provisions of the will because it may deem that a different disposition would be more proper.^ § 228. Rules in England Prior to the Norman Conquest. In England, prior to the Norman Conquest, real prop- erty could, under certain restrictions, be devised by will f ^ but after the introduction of the systemof military tenure,; - the rights of the over-lord prevented either the free ali-i; enation of lands during life, or a testamentary disposition- thereof.* As to personal property, however, the right tO; bequeath it appears to have existed in England from the earliest times, subject to the rights of the wife and chil- dren to their reasonable parts.^ Under the fiction of cre- ating a use to commence in futuro, however, dispositions were made of real property which were testamentary in effect,® until such transfers were attempted to be pre- vented by the Statute of Uses.'' But five years later, A. D. 1540, the Statute of Wills (32 Henry VIII, ch. 1, ex- j)lained by 34 Henry VIII, ch. 5) was enacted, under 2 Fraser v. Jennison, 42 Mich, to have done, can have no bearing 206, 3 N. W. 882; In re Little, 22 on the construction of what she Utah 204, 61 Pac. 899. actually saw fit to do." In Toms v. Williams, 41 Mich. 3 See, ante, § 7, as to the early 552, 2 N. W. 814, the court says: rule in England. "If a will is legally executed, and * See, ante, § 8, as to the effect violates no rule of law, all courts of military tenure in England, must respect the expressed de- b See, ante, § 9, as to the right signs of the testatrix, and must to bequeath personal property, accept her action as based on 6 See, ante, §§ 11, 12, 13. such reason as satisfied her. The 7 See, ante, §§ 13, 14, as to the view which other persons may Statute of Uses, its purposes and take of what they think she ought effect. 270 COMMENTARIES ON THE LAW OF WILLS. which those owning lands in fee simple, with certain exceptions, could devise two-thirds of their lands held in military tenure and all their lands held in socage.* Then, A. D. 1660, military tenures were abolished in England, and the right of testamentary disposition of property became general. § 229. Devises of After-acquired Eeal Property. The early conception in England of a devise of real property was different from that of a bequest of per- sonalty, the rule as to the latter having been adopted from the civil law. A bequest of personalty was con- sidered as the appointment of an heir, whereas a devise of realty was considered in the nature of a conveyance by way of appointment, or as a conveyance declaring the uses to which the land should be subject.® Devising land by will being a statutory conveyance unknown to the feudal or common law, it was first held that no man could devise real property which he did not own at the time the will was made. As to personalty, however, a testator could, by an appropriate provision in his will, bequeath all such property which he might be possessed of at the time of his death.^" Then, after the enactment of the Statute of Wills of 1 Vict., ch. 26 (A. D. 1837), any qualified person could devise or bequeath by a will executed according to the formalities required by the act, all real or personal property which he might be entitled to, either at law or in equity, at the time of his death, even though his title to or interest in the property was acquired subsequent to the execution of the will. 8 See, ante, §§ 15, 16. Watson v. Child, 9 Rich. Eg. 9 George v. Green, 13 N. H. 521; (S. G.) 129. Battle V. Speight, 31 N. C. 288; lo See, ante, §§26,27,28,29. PROPERTY WHICH MAY PASS. 271 § 230. The Same Subject: Eajly Rule in the United States. The statutes regarding wills in force in tlie original colonies and those adopted after the independence of the United States, being long prior to the statute of 1 Vict., ch. 26 (A. D. 1837), were founded principally upon the Statute of Wills of 32 Henry VIII, ch. 1, as explained by 34 Henry VIII, ch. 5, and the acts which extended it. The rule, therefore, that a testator could not by his will devise real property which he subsequently acquired, as it originally prevailed in England, to an extent, at one time, prevailed in the United States," but this has gener- ally been changed by statute. ^^ §231. The Intentioii of the Testator Determines Whether or Not After-Acquired Realty Shall Pass. A general residuary clause in a will whereby a testator devises and bequeaths all the remainder of his property, not otherwise disposed of, which he may possess at the time of his death, shows a clear intention to dispose of 11 Smitli V. Edrington, 8 Crancli (N. Y.) 535, 537; Parker v. Bo- (TJ. S.) 66, 3 L. Ed. 490; Meador gardus, 5 N. Y. 309; Foster v. V. Sorsby, 2 Ala. 712, 36 Am. Dec Craige, 37 N. C. 533; Glrard v. 432; Brewster v. McCall's Devi- Philadelphia, 4 Rawle (Pa.) 323, sees, 15 Conn. 274; Frazier v. 26 Am. Dec 145; Raines v. Bar- Boggs, 37 Fla. 307, 20 So. 245; ker, 13 Grat. (Va.) 128, 136, 67 Roberts' Heirs v. Elliott's Heirs, Am. Dec. 762. 3 T. B. Men. (19 Ky.) 395; Skeene 12 Frazier v. Boggs, 37 Fla. 307, V. Fishback, 1 A. K. Marsh. 20 So. 245; "Willis v. Watson, 4 (8 Ky.) 356; Bowman v. Violet, Scam. (5 111.) 64; Peters v. Spill- 4 T. B. Mon. (20 Ky.) 350; Beall man, 18 111. 370; Williams v. John- V. Schley, 2 Gill (Md.) 181, 198, son, 112 111. 61, 1 N. E. 274; 41 Am. Dec. 415; Wait v. Belding, Roberts' Heirs y. Elliott's Heirs, 24 Pick. (Mass.) 129; George v. 3 T. B. Mon. (19 Ky.) 395; Bow- Green, 13 N. H. 521; McKinnon man v. Violet, 4 T. B. Mon. V. Thompson, 3 Johns. Ch. (N. Y.) (20 Ky.) 350; Blaney v. Blaney, 307; Green v. Dikeman, 18 Barb. 1 Cush. (55 Mass.) 107; Loveren 272 COMMENTAEIES ON THE LAW OF WILLS. property wMcli lie miglit acquire subsequent to the exe- cution of his will. A general devise or bequest of all real or personal property which might be owned by the testa- tor at the time of his death would show a like intent. It. is the intent of the testator which prevails,^' and this rule was applied in an American case arising prior to a statutory enactment authorizing the devising of after- acquired real property, where the will enacted that the intention of the testator was that lands acquired subse- quent to the execution thereof should pass ;^* but in Eng- land, under like circumstances, prior to the Statute of Wills (A. D. 1837), the contrary rule was laid down.^^ The intention of the testator likewise governs where it is clearly expressed that his purpose was not to dispose of real property which he might thereafter acquire.^" And where he disposes of certain lands in a particular city or county, and afterwards acquires other lands in the same section, or elsewhere, it has been held that an inten- V. Lamprey, 22 N. H. 434; Turpin (N. Y.) 332; Lent v. Lent, 24 Hun V. Turpin, 1 Wash. (Va.) 75; Har- (N. Y.) 436; Brown v. Hamilton, rison v. Allen, 3 Call (Va.) 289. 135 N. C. 10, 102 Am. St. Rep. 526, isLangdale v. Briggs, 3 Sm. & 47 S. E. 128; Price's Appeal, 169 G. 246; Goodlad v. Burnett, 1 Kay Pa. St. 294, 32 Atl. 455; Williams & J. 341; Ayer v. Estabrooks, 2 v. Brice, 201 Pa. St. 595, 51 Atl. N. Bruns. Eq. 392; Dlckerson's 376; Bearing v. Selvey, 50 W. Va. Appeal, 55 Conn. 223, 10 Atl. 194, 4, 40 S. E. 478. 15 Atl. 99; McAleer v. Schneider, 2 i* Hardenbergh v. Ray, 151 V. S. App. Cas. (D. C.) 461; Decker v. 112, 38 L. Ed. 93, 14 Sup. Ct. 305. Decker, 121 111. 341, 12 N. E. 750; See, also: Ross v. Ross, 12 B. Mon. Briggs V. Briggs, 69 Iowa 617, 29 (51 Ky.) 437; Applegate v. Smith, N. W. 632; Bourke v. Boone, 94 31 Mo. 166; Jackson v. Holloway, Md. 472, 51 Atl. 396; Kimball T. 7 Johns. (N. Y.) 394. Ellison, 128 Mass. 41; Webb v. 15 Bunter v. Coke, 1 Salk. 237. Archibald, 128 Mo. 299, 34 S. W. 16 Bourke v. Boone, 94 Md. 472, 54; Ellison v. Miller, 11 Barb. 51 Atl. 396. PROPERTY WHICH MAY PASS. 273 tion to dispose of sucli after-acquired real property is not shown, although this rule is not uniform.^^ §232. The Same Subject: Intention to Dispose of Entire Estate. It is a well settled rule that when one undertakes to make a will, he intends to dispose of his entire estate.^* Again, it is not the rule or the policy of the law to declare partial intestacy if the will can he so construed as to prevent it.^' The intention of the testator, so far as it is IT The statute of Minnesota in reference to the lands he has provided as follows: "All property acquired by the testator after making his will shall pass therein in like manner as if possessed at the time of making the will, if it appears by the will that such was his intention." The will in ques- tion made no special reference to after-acquired property and there was no general or specific clause which the particular tract of land in question would pass even if the testatrix had owned it at the time she made the will. The lot in controversy was not in Toledo, Ohio. The clause of the will was as follows: "All my real estate and property and interest in real estate and property of whatever kind soever, situate and being in Toledo, Ohio." Held the lot was not disposed of by the will. — Be- dell v. Fradenburgh, 65 Minn. 361, 68 N. W. 41. Where the testator devises all his real estate at a particular place, or within a particular dis- trict of country, there is good rea- son to suppose he means to speak I Com. on Wills— 18 already acquired there; but that if he intended to give to the devisee all the lands or real estate which he should afterwards pur- chase at any place, or within the specified district of country, there would have been something in his will indicating such an inten- tion. — Pond V. Bergh, 10 Paige (N. Y.) 140. Compare: Gushing v. Aylwin, 12 Mete. (Mass.) 169; Woman's Union Missionary Society v. Mead, 131 111. 33, 23 N. B. 603; Fluke v. Fluke's Kx'rs, 16 N. J. Eq. 478. 18 Given v. Hilton, 95 IT. S. 591, 594, 24 L. Ed. 458, 460; Higgins v. Dwen, 100 111. 554; Taubenhan v. Dunz, 125 111. 524, 530, 17 N. E. 456; Phelps v. Phelps, 143 Mass. 570, 10 N. E. 452; Leigh v. Savidge's Exrs., 14 N. J. Eq. 12*; Vernon v. Vernon, 53 N. Y. 351; Gilpin V. Williams, 17 Ohio St. 396; Gourley v. Thompson, 2 Sneed (34 Tenn.) 387; Appeal of Boards of Missions of United Presbyterian Church, 91 Pa. St. 507. 19 Lett V. Randall, 10 Simons, 274 COMMENTARIES ON THE LAW OP WILLS. consistent with, the rules of law, must govern the con- struction of a will. When the intention of the testator may be reasonably inferred from the will, taking it as a whole, the court must construe the instrument so as to carry out such intention, even against strict grammatical rules, and to effect the evident intention, words and limi- tations may be transposed, applied or rejected.^" §233. The Same Subject: The General Rule. It has been held that although the intention of the testator must govern, yet if there is nothing in the will which would cause the court to infer one way more strongly than another as to whether the testator did or did not intend to devise after-acquired realty, such land will be considered as undevised and will descend to the heirs.^^ The reasoning of such a rule may be questioned, 112; Given v. Hilton, 95 U. S. 591, 594, 24 L. Ed. 458, 460; Marion v. Williams, 9 Mackey (D. C.) 20; Schuck V. Shook, 10 N. Y. Supp. 936; Thomas v. Snyder, 43 Hun (N. Y.) 15; Delehanty v. St. Vin- cent's Orphan Asylum, 56 Hun (N. Y.) 57, 8 N. Y. Supp. 797; Ver- non V. Vernon, 53 N. Y. 351; Wel- born V. Townsend, 31 S. C. 408, 10 S. E. 96. 20 Doe d. Leach v. Mlcklem, 6 East 486; Doe d. Cotton v. Sten- Igke, 12 East 515; Marshall v. Hopkins, 15 East 309; Spark v. Purnell, Hob. 75; Montagu v. Nu- cella, 1 Russ. 165; Boon v. Corn- forth, 2 Ves. Sen. 277. 21 Smith V. Edrington, 8 Cranch (TJ. S.) 66, 3 L. Ed. 490; Walton's Heirs v. Walton's Bxr., 7 J. J. Marsh. (Ky.) 58; Smith v. Hutch- inson, 61 Mo. 83. In Flournoy's Devisees v. Flour- noy's Exec, 64 Ky. (1 Bush) 515, the court says: "If, from the will itself, it shall appear more reasonable to infer an intention that after-acquired land should pass by it than that it should re- main undevisable, then it would pass by the will; otherwise, if the contrary intention shall seem more reasonable, land will de- scend. And if there Is nothing in the will to lead to one deduction rather than the other, land ac- quired by the testator after its publication should descend as es- tate undevised." In Dennis v. Warder, 3 B. Mon. (42 Ky.) 174, the court says: "The PBOPERTT WHICH MAT PASS. 275 since partial intestacy is not favored, and when a testator executes a will, it is presumed that he intended to dispose of his entire estate. On the other hand, however, the material circumstances of the testator may be greatly altered after he has executed his will. His wealth may diminish and subsequently acquired real property may be simply personalty converted into realty ; or new lands acquired may be the result of subsequently accumulated riches. It may reasonably occur that the testator be- comes possessed of realty regarding which he had no thought at the time of the execution of his will. How- ever, should his circumstances be so altered that a pre- viously executed will does not state his desires, it would be natural that the testator would make a new disposi- tion. The right to dispose of after-acquired realty is statutory, yet the right to devise property at all is statu- tory, and the statutes of the various jurisdictions which allow devises of after-acquired realty are not uniform. The better rule seems to be that the testator when making the will intends to dispose of all property which he may testator declared his Intention to guage of the will was "I give to dispose by will, of such estate 'as my sister ... all my belongings It (had) pleased God to bless if she feels like making a present (him) with.' And there is noth- to M. J. M. and J. F. J.,'' the court ing in the entire will which, so far held the expression referred only as land was concerned, extended to personal property and that that purpose beyond what he then after-acquired realty did not pass, owned. The fact that the will did In Webster v. Wiggin, 19 R. I.* not devise real estate directly to 73, 28 L. R. A. 510, 31 Atl. 824,( the children, but only gave a where the will in question con-; power to his executors to sell it tained no express terms referring for their benefit, can not affect the to property which the testator legal construction as to what might acquire after its execution, real estate was embraced by the and the property which he devised devise." was described in a general man- In McAleer v. Schneider, 2 App. ner, it was held that after-ac- Cas. (D. C.) 461, where the Ian- quired realty did not pass. 276 COMMENTAKIES ON THE LAW OF WILLS. possess at the time of his death. But since the courts can not supply an intention, if it can not be reasonably inferred from the wiU itself, after giving a liberal con- struction to the statutes granting the power to devise after-acquired realty, that the testator desired such prop- erty to pass to some designated person, it should be con- sidered as undevised ; yet the fact that the testator speaks in the present tense and does not specifically refer to property which he may subsequently possess, will not prevent after-acquired realty from passing. The use of such words as "all my estate," "aU my land and per- sonal property," and similar expressions without spe- cifically mentioning real property which he might there- after acquire, have been held sufficient to pass lands which come into the possession of the testator after the execution of the will.^^ 22 Goodlad v. Burnett, 1 Kay & J. 341; Webb v. Byng, 1 Kay & J. B80; Wagstaff v. Wagstaft, L. R. 8 Bq. 229; In re Ord, 12 Ch. Div. 22; Lilford v. Keck, 30 Beav. 300; Patty V. Goolsby, 51 Ark. 61, 9 S. W. 846; Liggatt v. Hart, 23 Mo. 127; Applegate v. Smith, 31 Mo. 166; Hale v. Audsley, 122 Mo. 316, 26 S. W. 963; Brimmer v. Sohier, 1 Gush. (Mass.) 118; Winchester v. Forster, 3 Gush. (Mass.) 366; HiU V. Bacon, 106 Mass. 578 ; Lovem v. Lamprey, 23 N. H. 434; Garrison V. Garrison, 29 N. J. L. 153; Smith V. Curtis, 29 N. J. L. 345, 353; Smith's Lessee v. Jones, 4 Ohio 115; Cresson's Appeal, 76 Pa. St. 19; Peters v. Spillman, 18 HI. 370; Woman's Union Missionary Soc. V. Mead, 131 111. 33, 23 N. E. 603. In Wait V. Belding, 24 Pick. (Mass.) 129, in a case arising be- fore the amendment of the law regarding devises of after-acquired realty. Chief Justice Shaw says: "In general, a will looks to the future; it has no operation, either on real or personal property, till the death of the testator. General words, therefore, may as well in- clude what the testator expects to acquire, as what he then actu- ally holds. The term, 'all my property,' may as well include all which may be his at his decease, as all which is his at the date of the will, and will be construed to be so intended, unless there are words in the description which limit and restrain it." The following language in a PBOPEETY WHICH MAT PASS. 277 §234. The Same Subject: Statutory Regulations. The statutes of various jurisdictions conferring the right to devise after-acquired real property are not uni- form ; in some jurisdictions the enactment is that the will must be held to convey all real property owned by the testator at the time of his death unless it clearly appear from the will that he intended otherwise ; in other juris- dictions the effect of the enactment has been that after- acquired real estate will not pass unless from the will it .clearly appears that it Avas the intention of the testator that it should so pass. The statutes, however, in all cases have been liberally construed and it is not necessary that the intention of the testator be declared La express terms; the will is sufficient to dispose of after-acquired real property if, taking the \nll as a whole, such an inten- tion can be reasonably dra-wn.^* § 235. Of What Date Is a Will Presumed to Speak? A will does not become effective until the death of the testator, yet where a testamentary instrument is exe- cuted many years before the death of its maker it is important, and often necessary, to determine whether the testator had in mind his property as it existed at the date of the execution of the will or whether he was re- will: "I bequeath, all my property, acquired realty. — Willis v. Wat- real and personal, wheresoever son, 4 Scam. (5 111.) 64. the same may be, to my beloved 23 Briggs v. Briggs, 69 Iowa 617, wife," was held to carry after-ac- 29 N. W. 632; Woman's Union quired realty. — Peters v. Spillman, Missionary Society v. Mead, 131 18 111. 370. 111. 33, 23 N. E. 603; Paine v. For- The following language in a saith, 84 Me. 66, 24 Atl. 590; Brim- will: "I give and bequeath the mer v. Sohier, 1 Gush. (Mass.) care, profits, and benefits of my 118; Wait v. Belding, 24 Pick, whole estate, real and personal, (Mass.) 129; Doe v. Wynne, 23 so long as she remains my Miss. 261, 57 Am. Dec. 139; James widow," was held to carry after- v. Prud^n, 14 Ohio St. 253. 278 COMMENTARIES ON THE LAW OF WILLS. f erring to property which he might possess at the time of his death. In other words, from what time does a will speak? Under the old rule of the common law that real property acquired by the testator subsequent to the exe- cution of his will would not pass thereunder, a devise of realty spoke as of its date only; but as to bequests of personal property, the will took effect as of the date of the testator's death.^* In England, however, by the statute of 1 Victoria, ch. 26, this rule was changed, it being enacted that every will, either as to realty or per- sonalty, should be considered as if it had been exe- cuted immediately before the death of the testator, unless a contrary intention should appear by the will.^® Similar statutes have been enacted in practically all of these United States.^® Such statutory regulations, therefore, must be considered in connection with the question as to what property will pass under a certain devise or be- quest. Because of the laws referred to, an apparent con- 24 Delacherois v. Delacherois, 11 estate and personal estate com- H. L. Cas. 62; Trinder v. Trinder, prised in it, to speak and take L. R. 1 Eq. 695; Wagstaff v. Wag- effect as if it had been executed staff, L. R. 8 Eq. 229; Gold v. immediately before the death of Judson, 21 Conn. 616; Jones v. the testator, unless a contrary in- Shewmake, 35 Ga. 151; Marshall's tention shall appear by the will." Heirs v. Porter, 10 B. Mon. (Ky.) This section has been substantially 1, 2; Haven v. Foster, 14 Pick, enacted in many jurisdictions in (Mass.) 534; George v. Green, 13 the United States. N. H. 521; Thornal v. Force's Sec. 34 of the Statute of 1 Vlo- Ex'rs, 29 N. J. Eq. 220; Van Vech- toria, ch. 26, provided "that every ten V. Van Veghten, 8 Paige (N.Y.) will re-executed or republished, or 104; Raines v. Barker, 13 Grat. revived by any codicil, shall, for (Va.) 128, 67 Am. Dec. 762. the purposes of this act, be deemed See ante, § 28. to have been made at the time at 25 Sec. 24 of the Statute of 1 which the same shall be re-exe- Vlctoria, ch. 26, reads as follows: cuted, republished or revived." "That every will shall be con- 26 Stimson's Am. Stat. Law, etrued, with reference to the real § 2806. PEOPERTY WHICH MAY PASS. 279 flict of decisions has arisen. In England, prior to the stat- ute of 1 Victoria, ch. 26, which not only prescribed that wills should speak as of the date of the death of the tes- tator, but also provided that after-acquired real property would pass to a general or residuary devisee, the deci- sions are naturally in conflict with those handed down after the statute ; and likewise the same confusion will be found in cases decided in the United States.^'^ § 236. The Same Subject: Common Law Rule. At common law a specific bequest was supposed to refer to property answering the description at the date of the will, hence subsequent changes in property so bequeathed operated as an ademption thereof.^® A bequest of certain 27 Statutes which abolished the rule of the old common, law that real property acquired after the execution of a will would not pass thereunder, have been construed to apply to wills which were exe- cuted prior to such enactments, where the testator died after they became effective. See Gushing v. Aylwin, 12 Mete. (Mass.) 169; Pray v. Waterston, 12 Mete. (Mass.) 262; Wakefield v. Phelps, 37 N. H. 295; Perkins v. George, 45 N. H. 453; Pond v. Bergh, 10 Paige (N. Y.) 140; Lynes v. Town- send, 33 N. Y. 558; Quinn v. Hard- enbrook, 54 N. Y. 83. Contra to the above citations, see Carroll v. Carroll's Lessee, 16 How. (U. S.) 275, 14 L, Ed. 936; Brewster v. McCall's Devisees, 15 Conn. 274; Mullock v. Souder, 5 Watts & S. (Pa.) 198. 28 Pattison v. Pattison, 1 Myl. & K. 12; Abney v. Miller, 2 Atk. 593; Hone V. Medcraft, 1 Bro. C. C. 261; Coppln v. Fernyhouse, 2 Bro. C. C. 291; James v. Dean, 11 Ves. Jun. 383; Slatter v. Noton, 16 Ves. Jun. 197. Compare: Thellusson v. Wood- ford, 13 Ves. Jun. 209; Hance v. Truwhitt, 2 Johns. & H. 216; Churchman v. Ireland, 1 Russ. & M. 250, overruling Back v. Kett, Jacob 534. As to a renewal of a leasehold revoking a specific bequest, see Coppin V. Fernyhouse, 2 Bro. C. C. 291; Slatter v. Noton, 16 Ves. Jun. 197; Hone v. Medcraft, 1 Bro. C. C. '261. As to a renewed lease passing when the privilege of renewal was Included, see Carte v. Carte, 3 Atk. 174; James v. Dean, 11 Ves. 280 COMMENTAEIES ON THE LAW OF WILLS. stock owned by the testator at tlie time he made his will did not include stock of the same character subsequently acquired, even though such stock had been sold and simi- lar stock thereafter purchased.^® Words in the present tense, such as "all the property I possess in the public funds," were held to mean the same as "all I now pos- sess," referring to the date of the execution of the will.^" A gift to descendants "now living" has been held to ex- clude those born after the will was signed.^^ And where a decedent in his will referred to a condition or state of affairs actually existing when the instrument was exe- cuted, his language was construed as referring to the date of the will,^^ as : "the house where I now reside," or "the estate whereof I am now seised."^* Jun. 383, 387; Colgrave v. Manby, 2 Russ 238. As to an assignment of a lease, see Woodhouse v. Okill, 8 Sim. 115. As to subsequently purchased stock, see Banks v. Thornton, 11 Hare 176. 29 Pattison v. Pattison, 1 Myl. & K. 12; Wilde v. Holtzmeyer, 5 Ves. Jun. 811. 30 Cockran v. Cockran, 14 Sim. 248; Wilde v. Holtzmeyer, 5 Ves. Jun. 811. 31 Crossley v. Clare, Ambl. 397; James v. Richardson, T. Jones 99; Burchett v. Durant, 2 Vent. 311, 313. Compare: All Souls' College v. Codrington, 1 P. Wms. 595. Contra: Rowland v. Gorsuch, 2 Cox 187. 32 Douglas V. Douglas, Kay 400; Abney v. Miller, 2 Atk. 593; Hutch, inson v. Barrow, 6 Hurl. & N. 583; Gold v. Judson, 21 Conn. 616; Ross V. Ross, 12 B. Mon. (Ky.) 437; Everett v. Carr, 59 Me. 325; Morse v. Mason, 11 Allen (Mass.) 36; Butler v. Butler, 3 Barb. Ch. (N. Y.) 304; Quinn v. Harden- brook, 54 N. Y. 83; Fairfield Tp. (Board of Education) v. Ladd, 26 Ohio St. 210; Anshutz v. Miller, 61 Pa. St. 212. 33 Cole V. Scott, 16 Sim. 259; Douglas V. Douglas, Kay 400; Hutchinson v. Barrow, 6 Hurl. & N. 583. PEOPEETT WHICH MAT PASS. 281 §237. The Same Subject: The Statute of 1 Victoria, ch. 26, Affects Only the Subject Matter Disposed of, Not the Beneficiaries. Section 3 of the statute of 1 Victoria, ch. 26, merely gives the right to devise real property acquired by the testator subsequent to the execution of his will. Sec- tion 24 of the same statute provides that as to the sub- ject matter, a will speaks as of the death of the testator Tmless a contrary intention is expressed ; but as to bene- ficiaries under the will, the statute makes no provision as to the time from which the will shall speak. This point is to an extent covered by sections 32 and 33 of the statute, they providing, generally, that if a devisee of an estate tail or estate in quasi-entail, or a child of a tes- tator to whom property is devised or bequeathed, should die during the life of the testator and leave issue sur- viving the testator, such devises or bequests shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testa- tor, unless a contrary intention shall appear by the will. The sections last mentioned, however, in all cases, would not apply as, for instance, where the devise or bequest was in favor of the servants of the testator,** or of the wife of B.^® The servants of the testator at his death may be other than those in his employment when he made his wiU, and the wife of B may die and B remarry. There- fore, the rule of the common law is still in force and effect as to beneficiaries designated by will, as to them Contra: Wagstaft v. Wagstaff, Coll. Ch. 290; Darlow v. Edwards, L. R. 8 Eq. 229; In re Midland Ry. 1 H. & C. 547. Co., 34 Beav. 525. 35 Walter v. Parrott, 33 Ch. Div. Compare: Chamberlain v. Tur- 274. ner, Cro. Car. 129. Compare: Peppin v. Bickford, 34 Parker v. Marchant, 1 Yo. & 3 Ves. 570. 282 COMMENTAEIES ON THE LAW OF WILLS. the will speaking as of the date of execution, except where the statute provides to the contrary or the language of the instrument clearly expresses a different inten- tion.^® §238. The Same Subject: General Rule in England. Although verbs used in the present tense have some- times had the effect of restricting devises to the subjects or objects existing at the date of the will,^'' yet where there seems to be no special reason for throwing any em- phasis upon the term, the verb will be held to refer to the time of the testator's death. For instance, such phrases as "am seised" or "am possessed" will include everything of which the testator was so seised or which he held in possession at the time of his demise.*^ A be- quest of a leasehold is held not adeemed by the expira- tion and the renewal of the lease; and a subsequently acquired fee in the same property, although described as se The rule has been so strictly date of the execution of the will. — applied with reference to a gift to Anshutz v. Miller, 81 Pa. St. a child who died before the testa- 212. tor, as to cut off another child of Compare: Ringrose v. Bram- the testator born after the exe- ham, 2 Cox 384. cution of the will. — ^Foster v. 37 Wilde v. Holtzmeyer, 5 Ves. Cook, 3 Bro. C. C. 347. Jun. 811. Compare: Perkins v. Mickle- Compare: Bridgman v. Dove, 3 thwalte, 1 P. Wms. 274. Atk. 201; Bland v. Lamb, 2 Jacob The oldest or youngest child has & W. 399; Ringrose v. Bramham, been held to refer to the one an- 2 Cox 384. swering the description when the 38 Doe d. York v. Walker, 12 will was made. — Butler v. Butler, Mees. & W. 591; Langdale v. 3 Barb. Ch. (N. Y.) 304. Briggs, 3 Smale & G. 246; Lilford A devise to one for life, with v. Keck, 30 Beav. 300; Everett v. remainder to his widow, refers to Everett, 7 Ch. Div. 428; In re Ord, the wife of the life-tenant at the 9 Ch. Div. 667. PEOPEETY WHICH MAY PASS. 283 a term for years, passes Tinder the bequest.'® Likewise a devise of real estate described generally as situated in a certain locality, or designated by some commonly known name, speaking from the death of the testator, will embrace additions to the original estate.*" And where all the testator's stock of a certain description is given by will, subsequent purchases of stock of the same de- scription will be included.*^ Where the specific article bequeathed is incapable of increase or diminution, there is an indication of a con- trary intention sufficient to bring it within the exception to the general rule that the will shall speak as of the date 'of the death of the testator unless a contrary intention appear.*^ As, for example, "my one thousand North British preference shares,"*' or a definite amount of stock,** or a debt of a designated amount, referred to in the will, has been construed to mean the shares, stock or debt existing at the date of the will.*^ §239. The Same Subject: Rule in the United States. In practically all of these United States, various stat- utes are now in force, the effect of which, with the deci- sions under them, is that all wills are to be construed, both as to real and personal property, as if made imme- 39 Miles V. Miles, L. R. 1 Eq. 42 In re Gibson, L. R. 2 Eq. 669. 462; Cox v. Bennett, L. R. 6 Eq. 43 In re Gibson, L. R. 2 Eq. 422; Wedgwood v. Denton, L. R. 669. 12 Eq. 290. Compare: Emuss t. Smith, 2 40 WagstafE v. Wagstaff, L. R. 8 De Gex & S. 722, 733. Eq. 229; Castle v. Fox, L. R. 11 44 Pattison v. Pattison, 1 Myl. Eq. 542. & K. 12; In re Gibson, L. R. 2 Eq. 41 Goodlad v. Burnett, 1 Kay & 669. J. 341; Drake v. Martin, 23 Beav. 45 Sidney v. Sidney, L. R. 17 89; Trinder v. Trinder, L. R. 1 Eq. 65. Eq. 695. 284 COMMENTARIES ON THE LAW OP WILLS. diately before the death of the testator, unless a contrary intention appear in the will.*® The effect of such stat- utes has been held to be prospective only and not to cover wills executed prior to the passage of such acts, although the testator did not die until afterward, unless the will be republished ; yet on the other hand, since wills do not become effective until the death of the maker, it 46 Blakeney v. Du Bose, 167 Ala. 627, 52 So. 746; In re Lux's Estate, 149 Cal. 200, 85 Pac. 147; In re Wells' Estate, 142 Iowa 255, 120 N. W. 713; Courtney v. Courtney, 149 Iowa 645, 129 N. W. 52; Gar- rison V. Day, 36 Ind. App. 543, 76 N. E. 188; Aneshaensel v. Twy- man, 42 Ind. App. 354, 85 N. E. 788; Meserve v. Meserve, 63 Maine 518; Blaney v. Blaney, 1 Cush. (Mass.) 107; Brimmer v. Sohier, 1 Cush. (Mass.) 118; Crapo v. Price, 190 Mass. 317, 76 N. E. 1043; Sibley v. Maxwell, 203 Mass. 94, 89 N. E. 232; Clark v. Mack, 161 Mich. 545, 28 L. R. A. (N. S.) 479, 126 N. W. 632, 17 Det. Leg. N. 378; Cox v. Jones, 229 Mo. 53, 129 S. W. 495; Fluke v. Fluke's Exrs., 16 N. J. Eq. 478; Garrison v. Garrison, 29 N. J. L. 153; Simp- son V. Trust Co., 112 N..Y. Supp. 370; Simpson v. Trust Co., 129 App. Div. 200, 113 N. Y. Supp. 370; In re Chapman's Estate, 133 App. Div. 337, 117 N. Y. Supp. 679; In re Hendrickson, 140 App. Div. 388, 125 N. Y. Supp. 309; Ridenour v. Callahan, 8 Ohio C. C. (N. S.) 585; Scott v. Ford, 52 Ore. 288, 97 Pac. 99; McKinley v. Mar- tin, 226 Pa. 550, 134 Am. St. Rep. 1076, 75 Atl. 734; Robinson v. Har- ris, 73 S. C. 469, 6 L. R. A. (N. S.) 330, 53 S. E. 755; Farley v. Farley, 121 Tenn. 324, 115 S. W. 921; Con- nely v. Putnam, 51 Tex. Civ. App. 233, 111 S. W. 164; Strand v. Stewart, 51 Wash. 685, 99 Pac. 1027. Where the facts showed that a will was executed in contem- plation of a settlement by the tes- tator with his creditors, and was followed shortly by a conveyance pursuant to such plan of settle- ment, it was held that the will should be construed as speaking from the date of the conveyance. — Cornwall v. Hill, 135 Ky. 641, 117 S. W. 311. Compare: Smith v. Edrington, 8 Cranch (U. S.) 66, 3 L. Ed. 490; Walton's Heirs v. Walton's Exr., 7 J. J. Marsh. (Ky.) 58; Smith v. Hutchinson, 61 Mo. 83; Van Wag-' ener v. Brown, 26 N. J. L. 196; Board of Education of Fairfield Tp. V. Ladd, Admr., 26 Ohio St. 210; Clarke's Estate, 82 Pa. St. 528; Thorndike v. Reynolds, 22 Grat. (Va.) 21, 32. PROPEETT WHICH MAT PASS. 285 has been held that such statutes cover all wiUs, when- ever executed, if the testator dies after the law has gone into force.*'' §240. Right of Entry: Disseisin: Statutory Enactments. The power to devise rights of entry of real property has been the subject of statutory enactments in many of the states. The right of devising interests in lands pos- sessed adversely to the testator was expressly de- clared in Kentucky, New Hampshire, Massachusetts and Maine ;*^ in other states the devisable nature of such interests would seem to have been implied under general enactments that any person claiming a right or title to real estate, although disseised thereof by adverse pos- session, may sell and transfer his interest as fully as if . i]j actual possession.*^ In other states the common law was followed, and a grant, devise or conveyance of real estate, made and delivered when the property was in the actual possession of a person claiming title thereto ad- 47 Where the statute did not af- v. Bishop, 4 Hill (N. Y.) 138; Hen- feet wills executed prior thereto. — derson v. Ryan, 27 Tex. 670. Jones V. Shewmake, 35 Ga. 151; See, also. Garrison v. Garrison, Gibbon v. Gibbon, 40 Ga. 562; 29 N. J. L. 153, where the statute Brigham v. Winchester, 1 Mete, fixed the date as to wills thereto- (Mass.) 390; Battle v. Speight, 31 fore executed. N. C. 288 ; Gable's Ex'rs v. Daub, 48 Stimson's Am. Stat. Law 40 Pa. St. 217; Cogdell's Ex'rs T. (Jan. 1, 1886), § 1401; Hyer v. Cogdell's Heirs, 3 Desaus. (S. C.) Shobe, 2 Munf. (Va.) 200. 346; McGavock v. Pugsley, 12 49 Stimson's Am. Stat. Law Heisk. (59 Tenn.) 689; Gibson v. (Jan. 1, 1886), §1401, citing the Carrell, 13 Grat (Va.) 136. statutes then existing in Maine Where the statute affected wills, Vermont, Illinois, Michigan, Wis. ,,, , 4. J v * •*„ „„„c consin, Iowa, Minnesota, Kansas although executed before its pass- , -.r- • . , « Nebraska, Missouri, Arkansas, Cal- age.-Lovern v. Lamphrey, 22 ifornia, Oregon, Nevada, Colorado. N. H. 434; De Peyster v. Clenden- j^aho, Montana, Wyoming, Utah ning, 8 Paige (N. Y.) 295; Bishop Georgia, Mississippi, and Arizona, 286 COMMENTARIES ON THE LAW OF WILLS. versely to the grantor or testator, was held void,^" except that a valid grant or devise could be made, as at common law, to the person in possession of the land, the devise having the effect of a release.^^ Under the old laws against champerty and maintenance, a right of action was not devisable,^^ but this rule was destroyed by stat- . ute in England.^3 Then, by the Statute of Wills of 1 Vict., ch. 26, sec. 3, rights of entry became devisable and this rule is now generally followed in the United States. §241. The Same Subject: May Be Devised. The general rule now, both in England and in the United States, is that a person may lawfully dispose of, by will, all real and personal property which he may be entitled to, either at law or in equity, at the time of his death and which, if not so de^dsed, bequeathed, or dis- posed of, would descend to his heirs or go to his personal representatives. Actual seisin of real property is not now required, a testator having the right to devise lands regarding which he has only the right of entry, including the right of entry after condition broken, such devise giving the devisee the right to take the necessary steps 50 Stimson's Am. Stat. Law 52 Baker v. Hacking, Cro. Car. (Jan. 1, 1886), §1401, citing the 387; Doe d. Cooper v. Finch, 1 statutes then existing in Rhode Nev. & M. 130; Goodright v. Island, Connecticut, New York, Forester, 8 East 552, 564, 1 Taunt. North Carolina, Kentucky, Ten- 578; Cave v. Holford, 3 Ves. nessee and Dakota. Jun. 650, 669; Attorney General v. 51 Stimson's Am. Stat. Law Vigor, 8 Ves. Jun. 256, 282; Souter (Jan. 1, 1886), § 1401, citing the v. Hull, 2 Dowl. & R. 38; Culley v. statutes then in effect in Vermont, Taylerson, 11 Ad. & B. 1008, 1020; Connecticut, and North Carolina. Bunter v. Coke, Salk. 237. See, also: Poor v. Robinson, 10 %3 1 Jarm. Wills (4th Eng. ed.), Mass. 131; Jackson v. Varick, 7 50, ciUng 3 & 4 Wm. IV, ch. 27, Cow. (N. Y.) 238; Davis v. Martin, § 36. 3 Munf. (Va.) 285. PEOPEETT WHICH MAY PASS. 287 to recover possession, the same as the testator might have done.^* Thus, where a statute authorizes any person to make a devise of any property held by him at the time of his death "in possession, reversion or remainder," the fact that a stranger has wrongfully taken possession of 64 Waring v. Jackson, 1 Peters (U. S.) 571, 7 L. Ed. 702; Atwood V. Weems, 99 U. S. 183, 25 L. Ed. 471; Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846; Gist v. Robinet, 3 Bibb (Ky.) 2; May v. Slaughter, 3 A. K. Marsh. (Ky.) 505; Carroll V. Norwood, 4 Har. & MoH. (Md.) 287; Hay den v. Stoughton, 5 Pick. (Mass.) 528; Jackson v. Varick, 7 Cow. (N. y.) 238; Jackson v. Varick, 2 Wend. (N. Y.) 294; Stoever v. Whitman, 6 Binn. (Pa.) 416; Humes v. McFarlane, 4 Serg. & R. (Pa.) 427; Hyer v. Shobe, 2 Munf. (Va.) 200. Compare: Goodright T. Forester, 1 Taunt. 604. In Bailey v. Hoppin, 12 R. I. 560, it was held that the word "seised" as used in a statute conferring the right of devising real property on persons who are seised thereof, is equivalent of "having." But in Leach v. Jay, 9 Ch. Div. 42, it was said that when the word is used in a will, as "real estate of which I may die seised," it has been con- strued not to embrace land to which the testator had only the right of entry. In Jackson v. Varick, 7 Cow. (N. Y.) 238, it was held that where the term "seised" is used. it applies to all lands to which a party has title or the right of entry. In Smithwick v. Jordan, 15 Mass. 113, it was held that al- though a testatrix had signed an instrument purporting to convey all her title to certain real prop- erty to another, yet such convey- ance having been determined to have been procured by fraud, it did not operate as a revocation of her will devising the same prop- erty, and was not such a disseisin as would prevent her from devis- ing the land. In Massachusetts, prior to the amendment of the statute, a party could not devise lands of which he was disseised at the time of the execution of the will and of which he continued to be so dis- seised until the time of his d e a t h. — Poor v. Robinson, 10 Mass. 131; Ward v. Fuller, 32 Mass. (15 Pick.) 185. In Virginia, prior to 1787, a de- vise of land of which the testator was actually disseised at the time when he made his will and at the time of his death, was inopera- tive. — Davis V. Martin, 3 Munf. (Va.) 285. 288 COMMENTABIES ON THE LAW OP WILLS. the testator's lands does not affect his power to make a devise of the same.^'* §242. Right of Ee-entry After Condition Broken: When De- visable. As to the right of re-entry, the rule is often laid down that, in order to be devisable, it must be a present right existing at the death of the testator, not the possibility of a right which might arise in the future. Thus, if one should convey all his interest in certain real property, merely reserving the right of re-entry in the event of the breach of some condition subsequent, he would have parted with all title and would be possessed, not of an interest in reversion, but merely of the possibility of a reverter. The entire estate would be vested in the grantee subject only to be defeated should there be a breach of condition. There having been no breach of condition at the time of the death of the grantor, although the possibility of reverter would descend to his heirs, yet they would acquire no right of entry or title to the prop- erty until there had been a breach of condition, and it has therefore been held that such possibility of reverter can not be devised.^® This rule, however, is not universal, for it has been held that where a grantor has transferred real property subject to a condition subsequent, the event of which would cause the property to revert to him, although at the time of his death he may not have a present right 55 May's Heirs v. Slaughter, 3 Southard v. Central Railroad Co., A. K. Marsh. (10 Ky.) 505. See, 26 N. J. L. 13, 91; Vail v. Long also, Whittemore v. Bean, 6 N. H. Island Railroad Co., 106 N. Y. 283', 47. 287, 60 Am. Rep. 449, 12 N. E. 607; 56 Ruch V. Rock Island, 97 U. S. Upington v. Corrigan, 151 N. Y. 693, 24 L. Ed. 1101; Presbyterian 143, 37 L. R. A. 794, 45 N. B. 359; Church V. Venable, 159 111. 215, BO Deas v. Horry, 2 Hill Eq. (S. C.) Am. St. Rep. 159, 42 N. E. 836; 244. PROPERTY WHICH MAT PASS. 289 of entry, but only a contingent possible estate, yet tliat he has such an interest as may be devised and which will pass under a general residuary elause.^^ And a possibil- ity, coupled with an interest, may be devised where the person in whom the interest will vest, in the event of the possibility, is certain or may be ascertained.^^ Vested estates in real property are devisable, although liable to be defeated by the non-performance of a condi- tion subsequent or the happening of some contingent event.^® Even the bare possession of lands without title is devisable, and the interest conferred may be defended against all but the true owners.''" § 243. Contingent Interest in Real Property, Where the Party Who Is to Take Is Uncertain. An estate in real property, distinguished from a mere possibility, whether present or future, legal or equitable, vested or contingent, may be devised, providing, of course, that it is not such an estate as will terminate with the life of the testator. Contingent, springing and executory uses, where the person who is to take is certain, are devisable.®^ A general devise of all the real property ' B7 Jones V. Roe, 3 Durn. & E. Q. B. 1; Smith v. Bryan, 12 Ired. 88; s. c, 1 H. Bl. Rep. 30; Clappv. (N. C.) 11. Stougtton, 27 Mass. (10 Pick.) 6 1 Jones v. Roe, 3 Durn. & E. 463; Austin v. Cambridge Parish, (t. R.) 88; s. c, 1 H. BI. Rep. 30; 38 Mass. (21 Pick.) 215. Whitfield v. Fausset, 1 Ves. Sen. 58 Pond V. Bergh, 10 Paige Ch. 391; Wright v. Wright, 1 Ves. Sen. (N. Y.) 140. See, also. Roe d. 411; Goodtitle v. Wood, Willes Noden v. Griffith, 1 W. Bl. Rep. 211; Perry v. Jones, 1 H. Bl. Rep. 605; Moor V. Hawkins, 2 Eden 342. 30; Moore v. Hawkins, 2 Eden 59 Pinbury v. Blkin, 1 P. Wms. 342; Ingliby v. Amcotts, 21 Beav. 563; Ingram v. Girard, 1 Houst. 585; Countess of Bridgwater v. (Del.) 276; Winslow v. Goodwin, Bolton, 1 Salk. 236; Blakely v. 7 Mete. (Mass.) 363. Quinlan, 101 Ky. 52, 39 S. W. 513; eoAsher v. Whitlock, L. R. 1 Woodman v. Woodman, 89 Me. I Com. on Wills— 19 290 COMMENTARIES ON THE LAW OP WILLS. which the testator may own at the time of his death will carry every interest which he has in such real property, whether such interest be in possession, reversion, or re- mainder, and whether absolute or contingent.®^ But where some future event is to decide as to the person to 129, 35 Atl. 1037; Heard v. Read, 169 Mass. 216, 47 N. B. 778; Var- Ick V. Edwards, 1 Hoff. Ch. (N. Y.) 383; Wimple v. Fonda, 2 Johns. (N. Y.) 288; Lawrence v. Bayard, 7 Paige (N. Y.) 70; Kenyon v. See, 94 N. Y. 563; Court v. Bankers' Trust Co., 160 N. Y. Supp. 477; Lindsley v. Dennis, 6 N. J. L. J. 246; Den v. Manners, 20 N. J. L. 142; Lewis v. Smith, 23 N. C. 145; Thompson's Lessee v. Hoop, 6 Ohio St. 480; Theological Semi- nary V. Wall, 44 Pa. 353; Buist v. Dawes, 4 Strohh. Eq. (S. C.) 37; Davis v. Bawcum, 57 Tenn. 406; Turpin v. Turpin, Wythe (Va.) 137; Carney v. Kaln, 40 W. Va. 758, 23 S. E. 650. In Roe d. Noden v. Griffiths, 1 W. Bl. Rep. 605, L«rd Mansfield says: "That, in all contingent, springing and executory uses, where the person who is to take is certain, so that the same may be descendible; they are also de- visable. They are convertible terms." In Bailey v. Hoppin, 12 R. I. 560, it was held that under the stat- utes of Rhode Island, the word "seised," when used in connection with the conferring of the right to devise real estate upon persons "seised" thereof, has the same meaning as "having," and author- izes the devise of equitable and contingent remainders. One having a vested remainder In real property may devise the same, even though he die prior to the life tenant. — Eckle v. Ryland, 256 Mo. 424, 165 S. W. 1035. An equitable interest in real property, such as a resulting trust, is devisable. — Boothe v. Cheek, 253 Mo. 119, 161 S. W. 791. An equitable estate may be willed the same as a legal estate.. — Meador v. Sorsby, 2 Ala. 712, 36 Am. Dec. 432. Contingent interests in both real and personal property may be de- vised or bequeathed the same as vested interests. — Winslow v. Goodwin, 7 Mete. (Mass.) 363. A reversionary interest in real property may be devised. — Alex- ander V. De Kermel, 81 Ky. 345. A vested remainder in real prop- 'srty, although liable to be defeated by the exercise by the grantor of a reserved power of appointment or by the death of the remainder- man prior to that of the grantor, may be devised. — Court v. Bank- ers' Trust Co., 160 N. Y. Supp. 477. 62 Pond V. Bergh, 10 Paige Ch. (N. Y.) 140. PROPERTY WHICH MAT PASS. 291 whom a future or contingent interest in real property is directed, thus making it impossible to determine in whom the interest will vest until the happening of the contin- gency, as, for instance, where the existence of the testator at some particular future time is to determine whether he is or is not to receive any interest in the property, there appears to be no interest in the testator which he can devise.** Although the statute may provide that no legacy or devise shall lapse or fail of taking effect be- cause of the death of the legatee or devisee prior to that of the testator, but that the interest in the property so bequeathed or devised shall pass to the heirs of such legatee or devisee, yet this does not give the legatee or devisee whose death occurs prior to that of the testator the right to dispose of such property by will, but it passes under the laws of succession.** And possibilities not coupled with an interest, as the expectancy of an heir of inheriting certain real property, can not be devised, since it is a mere possibility, as the property may be otherwise disposed of during the life of the owner or devised to some one else at his death.*^ 63 Lioring v. Arnold, 15 R. I. 428, after the death of the testatrix, 8 Atl. 335. See, also, Doe d. Calkin and in the event she did not so dis- V. Tomkinson, 2 M. & S. 165; pose of it, then the interest was to Brown v. Williams, 5 R. I. 309; go to the granddaughters of the Bailey v. Hoppin, 12 R. I. 560. testatrix, the daughter dying dur- 64 Halsey v. Convention of Prot- ing the life of the testatrix, it was estant Episcopal Church, 75 Md. held she had no interest in the 275, 23 Atl. 781; Pate v. Pate, 40 property which she could devise. Miss. 750. and a devise in her (the daugh- 65 Needles v. Needles, 7 Ohio St. ter's) will disposing of such Inter- 432, 70 Am. Dec. 85, where a testa- est in the property was held trix bequeathed to her daughter a premature and not to defeat the one-fifth share of her estate with rights of the granddaughters. — the power, if she did not marry. Hall's Estate, In re, 26 Md. 107. to dispose of the same by will 292 COMMENTARIES ON THE LAW OP WILLS. § 244. Interests ia Lands Pounded on Contracts of Sale and Purchase. An equitable interest in lands, founded upon valid and binding articles of agreement for the purchase and sale of the same, may be devised.®^ A person who has con- tracted to purchase lands is, in equity, considered the owner and he may devise his interest therein ;^^ and a person who has contracted to sell lands may devise them, the devisee taking them subject to the interest which the vendee has under his contract.®* Although a party may have executed a written agreement to sell real property belonging to him, and although the purchaser may have taken possession, yet his interest in the property and in the notes given in payment thereof may pass by his will."' This presumes a valid and enforceable contract, for the rights of the heir or devisee of either of the parties, seller or purchaser, depend upon the binding effect of the contract upon the one or the other at the time of death.''** If an enforceable contract against a purchaser did not exist at the time of his death, as where the title of the vendor was defective, his heir at law or devisee could not claim the land as realty or compel the executor 66 Broome v. Monck, 10 Ves. Jun. 67 Marston v. Roe d. Fox, 8 Ad. 597; Hudson v. Cook, L.. R. 13 Eq. & B. 14; Malin v. Malin, 1 Wend. 417; Ingle v. Richards, 28 Beav. (N. Y.) 625. 366; Sargent v. Simpson, 8 Greenl. esFlagg v. Tenelck, 29 N. J. L. (8 Me.) 148, 149; Malin v. Malin,' 25; McCarty v. Myers, 5 Hun 1 Wend. (N. Y.) 625; Matter of (N. Y.) 83. Champion, 45 N. C. 246; Bailey v. 69 Atwood v. Weems, 99 U. S. Hoppin, 12 R. I. 560, 569. See, 183, 25 L. Ed. 471. also, Whittaker v. Whittaker, 4 70 Hudson v. Cook, L. R. 13 Bq. Bro. 0. C. 31, the ruling in which 417; Ingle v. Richards, 28 Beav. was questioned hy Lord Bldon in 366; Haynes v. Haynes, 1 Dr. & Broome v. Monck. 10 Ves. Jun. 597. Sm. 426, 451. PEOPEETT WHICH MAT PASS. 293 or administrator to pay the purchase money for other landsJ^ Eeal property, as soon as contracted to be sold, is con- sidered in equity to have been converted into personalty; the legal title to the land remains in the seller but he is deemed to hold it merely as security for the payment of the debt contracted. A specific devise of the lands only would carry with it merely the real property which would be subject to the contract of purchase, but would not pass the purchase money, when paid, to the devisee. The money would be paid to the executor or administrator of the estate and would be subject to the debts of the decedent ; upon distribution it would pass to the residuary legatee.'''^ An outstanding option to purchase, there being no obligation on the holder thereof to pay for the land unless he so desired, has been distinguished from the above case, and the option being exercised after the testa- tor's death, it was held that the purchase money passed to the devisee.''^ One who is boimd by a valid agreement to purchase lands is considered, in equity, the owner. If he dies be- fore having acquired the legal title, the estate will pass 71 Broome v. Monck, 10 Ves. Jun. Haughwout v. Murphy, 22 N. J. Bq. 597, overruling, on this point, 531, 541; McKinnon v. Thompson, Whlttaker v. Whlttaker, 4 Bro. 3 Johns. Ch. (N. Y.) 307; Moore v. C. C. 31; Buckmaster v. Hairop, Burrows, 34 Barb. (N. Y.) 173; 7 Ves. Jun. 341. Williams v. Haddock, 145 N. Y. 72 Fletcher v. Ashburner, 1 Bro. 144, 39 N. & 825. C. C. 497; Townley v. Bedwell, 14 Compare: Welles v. Cowles, 4 Ves. Jun. 591; Wall v. Bright, 1 Conn. 182, 10 Am. Dec. 115; Neal Jac. & W. 474; Lawes v. Bennett, v. Knox & L. R. Co., 61 Me. 298; 1 Cox 167; Gould v. Teague, 5 Jur. Goodwin v. Milton, 25 N. H. 458. (N. S.) 116; Weeding T. Weeding, 73r)rantv. Vause, 1 You. & Coll. 1 J. & H. 424; Craig v. Leslie, 3 C. C. 580; Flagg v. Teneick, 29 Wheat. (U. S.) 563, 4 L. Ed. 460; N. J. L. 25. 294 COMMENTARIES ON THE LAW OP WILLS. to his heir or devisee. When one contracts to purchase lands, the money is deemed to have been converted into real property which passes to the heir or devisee, but the decedent having been liable for the purchase price, his estate may be called upon to pay the same.''* § 245. Interests in Trust, Where a trust has been created for the personal benefit of a designated beneficiary during his life, the trust termi- nates at his death and there remains over no interest which he can dispose of by will ; but the case is otherwise where the interest of the beneficiary is absolute, the trus- tees (so-called) taking neither the legal nor the equitable title, their status being more advisory than controlling.^^ As to the trustee, if he acts in a personal or confidential capacity, the trust relationship terminates at his death and there is nothing regarding it which he can devise or bequeath.'^* § 246. Estates Pur Autre Vie. An estate pur autre vie is an estate of freehold, during the life of another called the cestui que vieJ'' If limited to 74 Whittaker v. Whittaker, 4 sition, upon her death the objects Bro. C. C. 31; Broome v. Monok, of the trust were fully satisfied, 10 Ves. Jun. 597; Garnettv. Acton, and since under the Statute of 28 Beav. 333; Williams v. Hassell, Wills of Virginia a married woman 73 N. C. 174; Champion v. Brown, has no power to devise her lands 6 Johns. Ch. (N. Y.) 398, 10 Am. except by virtue of some power Dec. 343. conferred or reserved by deed, the 75 Hemingway v. Hemingway, 22 property reverted to her heirs. — Conn. 462. Wilkinson v. Wright, 6 B. Mon. (45 Where a woman, just prior to Ky.) 576. her marriage, conveyed real prop- 76 Hinckley v. Hinckley, 79 Me. erty of her own to a trustee, for 320, 9 Atl. 897. her exclusive use, free from the 77 Coke, Lltt. (1st Am. Ed.) Lib. debts and control of her husband, 1, ch. 6, § 56, p. 41b. she reserving no power of dispo- PROPERTY WHICH MAY PASS. 295 the grantee alone, upon his death prior to that of the cestui que vie, the land Avas open to occupancy by any one who might desire to enter, and any one thus entering was designated a general occupant. If the estate was granted to a man and his heirs, upon the death of the owner of the estate prior to that of the cestui que vie, the heir might enter and hold possession as a special occupant during the remainder of the term. By reason of the fact that the property might be without an owner, estates pur autre vie were in express terms made devisable by the Statute of Frauds, 29 Charles II, ch. 3, sec. 12, and if not so disposed of, the heir took the estate as a special occupant and was chargeable with the same as assets of the decedent for the payment of his debts. By the statute of 14 George II, ch. 20, sec. 9, which explained the former enactment, it was provided that in the event of intestacy and no special occupant having been named, the estate was deemed personal estate and subject to administration as such, the surplus, however, after the payment of debts, being distributed to the next of kin.'^^ By the statute of 1 Vict., ch. 26, sec. 2, the previous enactments regarding estates pur autre vie were repealed, but by section 3 it was enacted that the right to devise, bequeath or dispose by will of all real estate and all personal estate which the testator might be entitled to, either at law or in equity, at the time of his death, extended "also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or incorporeal hereditament." Sec- 78 Coke, Litt. (1st Am. Ed.) Lib. *258, *259, *260; 4 Kent Com. *26. 1, ch. 6, § 56, p. 41b; 2 Bl. Coin. *27. 296 COMMENTAKIES ON THE LAW OF WILLS. tion 6 of the same statute further enacted, "That if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple ; and in case there shall be no special occupant of an estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corpo- real or incorporeal hereditament, it shall go to the execu- tor or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go to be applied and dis- tributed in the same manner as the personal estate of the testator or intestate." An estate pur autre vie, therefore, although in the nature of a freehold, in many respects, as to administration for instance, partakes of the nature of personalty. It is not an estate of inheritance since the heir does not take by descent.'^® The provisions of the Statute of Frauds regarding estates pur autre vie have been substantially re-enacted in many of the jurisdictions in the United States, but some differences occur as to the nature of the interest after the death of the tenant pur autre vie, some jurisdic- tions holding such interest to be a chattel real, others holding it to be descendible as would be an estate in fee simple. In those jurisdictions where estates pur autre vie are not made devisable by special enactment, they may be devised under the general power to make a testamen- V» Doe (J. Blake v. Luxton, 6 T. R. 289. PROPERTY WHICH MAT PASS. 297 tary disposition of legal and equitable interests in real and personal property. § 247. Right in Equity to Cancel Deed Is Devisable. A deed to lands, obtained by fraud, duress or undue influence, even tbougb duly recorded and the grantee has taken possession thereunder, does not work such a dis- seisin as will prevent the grantor from thereafter making a devise of his interest in the property. He has the right in equity to have such deed set aside and the grantee will be considered as trustee for the grantor and a re-convey- ance may be decreed. A devisee of a deceased grantor could obtain the same relief in equity as the testator might have had.^" § 248. Life Estates and Joint Tenancies : Not Devisable. Where the interest which a testator has in property ceases with his life, there being no estate remaining to descend to his heirs, nothing :femains which is subject to his testamentary disposition; therefore a life estate can not be devised.^^ Joint tenants of real property hold the same interest therein through the same conveyance, their interest ac- cruing at the same time; but upon the death of one joint tenant, his interest goes to the survivor or survivors, the heirs of the decedent acquiring no interest. Although a joint tenant might, during his life time, alienate his inter- so Uppington v. Bullen, 2 D. & 81 Berry v. Heiser, 271 111. 264, War. 184; Stump v. Gaby, 2 De 111 N. B. 99; Young v. Snow, 167 Gex, M. & G. 623; Gresley v. Mous- Mass. 287, 45 N. E. 686; Studdard ley, 4 De G. & J. 78; Smithwick v. Wells, 120 Mo. 25, 25 S. W. 201. V. Jordan, 15 Mass. 113; Poor v. Robinson, 10 Mass. 131. . 298 COMMENTARIES ON THE LAW OF WILLS. est in property,*^ or mortgage the same,*^ and thus defeat the rights of the survivor, yet if there has been no sev- erance of the estate during the life of a joint tenant, upon his death the right of the survivor immediately accrues and there remains no interest in the estate of the decedent which can pass under his will or descend to his heirs.®* A statute which provides that any person may devise any interest descendible to his heirs which he may have in lands, does not empower him to devise his interest in a joint estate.^® This refers to the case where the testator who attempts to dispose of his interest in a joint estate by will, dies before the other joint tenant; his interest passes to the survivor and there is nothing for him to devise. The will, however, is not invalid, and should one of two joint tenants make a devise of the real property and thereafter, by reason of the death of the other, acquire the entire estate therein, since it is now lawful to devise real property acquired subsequent to the execu- tion of a will, the lands would pass to the devisee. Joint tenancy, however, is not favored in the United States and has been abolished by statute in many jurisdictions ; in others an instrument is not construed as creating a joint tenancy unless it specifically so provides, the grantees taking merely as tenants in common.®^ 82 Bevins v. Cline's Admr., 21 546; Wilkins v. Young, 144 Ind. 1, Ind. 37, 40; Duncan v. Forrer, 6 55 Am. St. Rep. 162, 41 N. E. 68, Bin. (Pa.) 193. 590. 83 York V. Stone, 1 Salk. 158; 85 Wilkins v. Young, 144 Ind. 1, Simpson's Lessee v. Ammons, 1 55 Am. St. Rep. 162, 41 N. E. 68, Bin. (Pa.) 175, 2 Am. Dec. 425. 590. 84 4 Kent Com. *360; Chaplin v. 86 4 Kent. Com. *361, *362. Leapley, 35 Ind. App. 511, 74 N. B. PROPEBTT WHICH MAT PASS. 299 § 249. Estate by the Entirety ; Not Devisable. The estate by the entirety of a husband and wife is inseverable; it can not be partitioned, and although the husband is entitled to control and manage the property, yet he can not dispose of it or encumber it in any way without the consent of his wife. The husband and wife have neither a joint estate nor a sole or several estate, nor even an estate in common. Because of their union in marriage they have an estate as one individual and upon the death of one the entire estate belongs to the survivor, not as an heir, but because the estate of the one first dying is extinguished. During their joint lives, the right of each extends to the whole property, and upon the death of one the right of the survivor includes the entire estate in the property under the instrument cre- ating the estate by the entirety.*^ Such an estate is there- fore not devisable. § 250. Estates in Coparcenary and Tenancies in Common May Be Devised. An estate in coparcenary resembles a joint tenancy in that the coparceners, like joint tenants, acquire their in- 87 2 BI. Com. *182; 2 Kent Com. v. Emery, 63 Vt. 505, 25 Am. St. •132, *133; Chaplin v. Leapley, 35 Rep. 780, 22 Atl. 618. Ind. App. 511, 74 N. E. 546; Carver Estates by the entireties were v. Smith, 90 Ind. 222, 46 Am. Rep. never recognized in Connecticut 210; Almond v.Bonnell, 76 111. 536; and Ohio.— Whittlesey v. Fuller, In re Robinson's Appeal, 88 Me. 17, 11 Conn. 337; Sergeant v. Stein- 51 Am. St. Rep. 367, 30 L. R. A. berger, 2 Ohio 305, 15 Am. Dec. 331, 33 Atl. 652; Fladung v. Rose, 553. 58 Md. 13; See v. Zabriskie, 28 Estates by the entireties have, N. J. Eq. 422; Rogers v. Benson, in some jurisdictions, been abol- 5 Johns. Ch. (N. T.) 431; Torrey ished, either directly or indirectly, v. Torrey, 14 N. Y. 430; French v. —Walthall v. Goree, 36 Ala. 728; Mehan, 56 Pa. St. 286; Corinth Hoftman v. Stigers, 28 Iowa 302; 300 COMMEUSTTAEIES ON THE LAW OF WDJLS. terest at one time and from the same source — coparce- ners acquire their title by descent — and there is unity of interest and possession. Each coparcener, however, has a distinct estate and may alienate or devise his share. Such ail estate resembles that of a tenancy in common in that the doctrine of survivorship does not obtain, and upon the death of a coparcener intestate his share de- scends to his heirs. *^ Such estates, however, are not favored in the United States, and in practically all of the states those deriving title to real property by descent are deemed tenants in common.^* In a tenancy in common there is unity of possession, but each tenant has a separate and distinct title or inter- est in the property which he may dispose of during his life time or devise at his death the same as if it were a separate estate, or, dying intestate, it descends to his heirs.^" §251. Community Property and Rights of Dower, Curtesy and Homestead. In practically all jurisdictions, a surviving husband or wife has an interest, fixed by statute, in the property of the other or in the property acquired during marriage. The estates of dower and of curtesy are well known. In Cooper V. Cooper, 76 111. 57; Clark Clelland's Exrs., 44 N. J. Eg. 450, V. Clark, 56 N. H. 105. 1 L. R. A. 551. 16 Atl. 1; Rowland 88 2 Bl. Com. *187, *188; 4 Kent v. Murphy, 66 Tex. 534, 1 S. W. Com. *366. 658. 89 4 Kent Com. *367; Stimson's 90 4 Kent Com. *367, *368; 1 Am. St. Law, §§1375, 1376, 3130; Washburn Real Prop. 652, 653. Hoffar V. Dement, 5 Gill (Md.) See, also. Brown v. Wellington, 132, 46 Am. Dec. 628; Gilpin v. 106 Mass. 318, 8 Am. Rep. 330; HoUIngsworth, 3 Md. 190, 56 Am. Bush v. Gamble, 127 Pa. St. 43, Dec. 737; Palms v. Palms, 68 Mich. 17 Atl. 865. 355, 36 N. W. 419; Bishop v. Mc- PROPERTY WHICH MAY PASS. 301 some of the southern and western states, the law of com- munity property prevails, having been adopted from the civil law prior to such sections becoming a portion of the United States. Community property includes aU prop- erty, real and personal, acquired during marriage, ex- cluding, however, property acquired by either gift, devise, bequest or descent which, with the property owned by either prior to marriage and the rents, issues and profits thereof, is denominated separate property. Then again, in many states, a widow and minor children have by stat- - ute, upon the death of the husband and father, the right! to have the homestead and household effects set apart for " their use and occupation. • § 252. The Same Subject : Neither Husband Nor Wife Can Be Deprived of Their Statutory Rights. Where the statute gives a husband or a wife certain rights in the property of the other after his or her death, the one first dying can not bequeath or devise such por- tion and thus defeat the statutory rights of the other.'^ Thus, under the laws of California, one-half of the com- munity property goes to the wife upon the death of the husband and this portion is not subject to his testamen- tary disposition should she survive him.®^ Nor can a husband, he dying first, dispose by will of the dower rights of his wife, nor other articles which the statute 91 Canaday v. Baysinger, 170 13 Cal. 458; Estate of Sllvey, 42 Iowa 414, 152 N. W. 562; State v. Cal. 210; Estate of Gwin, 77 Cal. Cline, 91 Kan. 416, 50 L. R. A. 313, 19 Pac. 527; Estate of Whit- (N. S.) 991, 137 Pac. 932; Gaster ney, 171 Cal. 750, 154 Pac. 855. V. Estate of Gaster, 92 Neb. 6, 137 To the same effect: Walker v. N. W. 900. Howard, 34 Tex. 478; Mayo v. 92 Beard v. Knox, 5 Cal. 252, Tudor's Heirs, 74 Tex. 471, 12 63 Am. Dec 125; Scott v. Ward, S. W. 117. 302 COMMENTARIES ON TUE LAW OP WILLS. may specially provide are to go to her ;»* and a homestead -will be set apart to those entitled thereto by statute, although otherwise devised.^* i^ §253. The Same Subject: EflFect of Consent or Election to Take Under the Will. Statutes limiting the right of a husband or wife in dis- posing of the property of their union generally provide that the restriction may be waived by obtaining the con- sent of the other in writing. Such consent by one gives the other the right to dispose of his or her interest in the property of their union, but its effect is merely that the one so consenting elects to take under the will in lieu of any rights which he or she might be given by the statute ; it in nowise affects the validity of the will.®^ In 93 Hasenritter v. Hasenritter, 77 Mo. 162. 94 Bell V. Bell, 84 Ala. 64, 4 So. 189; Pratt v. Pratt, 161 Mass. 276, 37 N. E. 435. Where a man, prior to his mar- riage, enters into an agreement with his intended wife to pay her a certain sum annually, if he gives his executors under his will an unlimited power to sell and use the property of his estate as they may deem advisable, any illegal or improper investments may be restrained, since the rights of creditors are superior to the rights conferred by will on the executors. — Appeal of Bannan, 1 Walk. (Pa.) 1. 96 In re Whitney's Estate, 171 Cal. 750, 154 Pac. 855; Durkee v. Smith, 90 Misc. Rep. 92, 153 N. Y. Supp. 316; Hughes v. Stouten- burgh, 168 App. Mv. 512, 154 N. Y. Supp. 65; Bacus v. Burns, (Okla.) 149 Pac. 1115. In Estate of Whitney, 171 Cal. 750, 154 Pac. 855, Hhe wife signed the following waiver: "I hereby elect to accept and acquiesce In the provisions of said will, and hereby waive all claims to my share of any community property, and any and all other claims that I may have upon any of the estate disposed of by said will." It was held that although the wife's elec- tion to take under the will, and the general words of the waiver, taken by themselves, were suffi- cient to cut her oft from a family allowance, yet the court would consider the circumstance that the husband and wife were nego- tiating with regard to her com- munity rights and did not have PEOPERTT WHICH MAT PASS. 303 the absence of such consent, the husband or mfe may refuse to accept any devise or legacy under the will, and take the property given them by statute.^® Thus, where the law gave the widow a one-third in value of the legal or equitable estate which her husband may have pos- sessed at any time during their marriage, the husband has no right to dispose of the same by will, and if he attempts to do so, his widow may renounce any provi- sions made by the will in her favor, and elect to take her share of the estate as directed by statute, or she may relinquish her statutory rights and take under the mil. She must make her election, consent not having been previously given, either to take under the will or under the statute. The will is valid, however, even if the widow renounces the provisions in her favor, in so far as it distributes the remainder of the property to other lega- tees and devisees.®'' in mind her possible application lated sum during her life, out of for a family allowance, and that the assets of the estate, and that therefore her application for such it was in lieu of family allowance allowance should be allowed. as well as any other possible de- In re Cutting, 174 Cal. — , 161 mands against the property. Pac. 1137, the decedent made an 96 Gaster v. Estate of Gaster, 92 ante-nuptial agreement with his Neb. 6, 137 N. W. 900; Estate of intended wife wherein she agreed, Strahan, 93 Neb. 828, 142 N. W. in consideration of a fixed sum 678; Richardson v. Johnson, 97 to be paid her during life, to ac- Neb. 749, 151 N. W. 314. cept the same "in lieu of any and 97 GuUett v. Farley, 164 111. 566, all claims against the property of 45 N. E. 972; In re Davis's Estate, said F. C, whether community or 36 Iowa 24; Smith v. Baldwin, 2 any other property or Interest." Ind. 404; In re Little, 22 Utah 204, The court held that the widow 61 Pac. 899. was entitled to receive the stipu- 304 COMMENTARIES ON THE LAW OF WILLS. §254. The Same Snbject: Consent, When Once Given, Can Not Be Revoked. Where the statute provides that a husband or wife may bequeath or devise property which by law would go to the survivor upon the death of the other, upon obtaining the consent in writing to that effect, and the statute con- tains no provision for the revocation of such consent, such consent freely and fairly given allows the other to make a testamentary disposition of the share so legally surrendered. Unless the consent stipulates otherwise, it is not necessary that the party giving the consent should receive anything under the will of the other.®* Such con- sent, however, if obtained by fraud or imposition, could be set aside,®* but the general rule is that an election, when once made, can not thereafter be revoked.^ §255. Chattels Real: May Be Bequeathed. Chattels real are personal interests in real property, or annexed thereto, being lands and freehold, as a lease of lands for years the period of which is fixed and deter- mined, irrespective of its duration even though it should be a thousand years.'' Chattels real are considered as personalty and do not descend, like lands, to the heir, 98Keeler v. Lauer, 73 Kan. 388, Whitney, 85 Ind. 140; McGuire v. 396, 85 Pac. 541; Hanson v. Han- Brown, 41 Iowa 650; Reville v. son, 81 Kan. 305, 105 Pac. 444; Dubach, 60 Kan. 572, 57 Pac. 522; Chllson V. Rogers, 91 Kan. 426, Ashelford v. Chapman, 81 Kan. 137 Pac. 936. 312, 105 Pac. 534; Church v. Bull, 99 Weisner v. Weisner, 89 Kan. 2 Denio (N. Y.) 430, 43 Am. Dec. 352, 131 Pac. 608. 754; Cunningham v. Shannon, 4 1 Ellis V. Lewis, 3 Hare 313; Rich. Eq. (S. C.) 135. Bennett v. Packer, 70 Conn. 357, 2 Coke, Litt. (1st Am. Ed.) Lib. 66 Am. St. Rep. 112, 39 Atl. 739; 1, oh. 7, § 58, p. 46a; Ca,se of Gay, 5 Stilwell V. Knapper, 69 Ind. 558, Mass. 419; Brewster v. Hill, 1 36 Am. Rep. 240; O'Harrow v. N. H. 350. PKOPERTY WHICH MAY PASS. 305 but pass to the executor or administrator and are subject to administration and tbe claims of creditors.* Sucb interests may be bequeathed the same as personalty. §256. Interests of Mortgai^or and Mortgagee: How Consid- ered. A mortgage, according to the old common law theory, was a conveyance of a defeasible state in land to the mort- gagee, subject to be defeated by a condition subsequent, namely, the liquidation of the debt or the fulfillment of the obligation for which the mortgage was given. If the mortgagor failed to meet the condition, the absolute estate then vested in the mortgagee.* On account of the hardships resulting from this rule, the Court of Chancery finally acquired jurisdiction of mortgages and decreed that a mortgagor might redeem the estate after condi- tion broken, by the payment of the debt with interest.^ In equity, therefore, a mortgage was merely a lien upon the property and not the conveyance of the legal estate.® It was therefore held, in equity, that the mortgagee merely had a claim for the amount due him, and as the land was merely security for the debt, the interest of the mortgagee in the mortgage was considered personal prop- erty and upon his demise became a part of his estate 3 Coke, Litt. (1st Am. Ed.) Lib. 114a; Fay v. Cheney, 14 Pick. 2, ch. 2, § 177, p. 118b; 2 Bl. Com. (Mass.) 399. *386; Scbee v. Wiseman, 79 Ind. b Casborne v. Scarfe, 1 Atk. 389; Ellis v. Wren, 84 Ky. 254, 1 603; Willett v. Winnell, 1 Vern. S. W. 440; In re Hirst's Estate, 147 488; Amiurst v. Bawling, 2 Vern. Pa. St. 319, 23 Atl. 455; Becker v. 401; Bamitz v. Beverly, 163 U. S. Walworth, 45 Ohio St. 169, 12 118, 41 L. Ed. 93, 16 Sup. Ct. 1042. N. E. 1. * 4 Kent Com. *142; Matthews v. 4 4 Kent Com. •140, *141; Good- Wallwyn, 4 Ves. Jun. 118; Hughes all's Case, Coke's Rep., pt. 5, 95b; v. Edwards, 9 Wheat. (U. S.) 489, Wade's Case, Coke's Rep., pt. 5, 500, 6 L. Ed. 142, 145; Jackson v. I Cora, on Wills— 20 306 COMMENTARIES ON THE LAW OP WILLS. and did not descend to his heirJ Equity considered the mortgagor the owner of the land, although encumbered with a lien in favor of the mortgagee, and the mortga- gor's equity of redemption was considered an equitable estate in the land.* As has been shown, under the old common law rule the mortgagee acquired a legal estate in the mortgaged property which descended to his heirs.® However, after equity assumed jurisdiction of mortgages, the mortgage was considered merely as personal property and there- fore passed to the personal representatives. The mort- gage itself is now considered to be personalty even in those jurisdictions where some of the remnants of the common law prevail.^" The modern rule is that the inter- est of a mortgagee in a mortgage, prior to foreclosure, is a personal interest only which would pass to his per- sonal representatives at his death, and could be be- queathed by a special, general or residuary legacy." There are two kinds of foreclosures recognized, strict, and equitable. Under strict foreclosure, the legal title becomes vested in the mortgagee and would descend to his heirs.^^ Under equitable foreclosure the mortgagor Willard, 4 Johns. (N. Y.) 41; WMt- 30 Iowa 268, 272; Haskins v. ney v. French, 25 Vt. 663. Hawkes, 108 Mass. 379. 7 Thomborough v. Baker, 3 n Thomborough v. Baker, 3 Swanst. 628. Swanst. 628; Tabor v. Tabor, 3 8 Casborne v. Scarfe, 1 Atk. 603. Swanst. 636; Chase v. Lookerman, 9 Coke, Litt. Lib. 3, ch. 5, § 332, 11 Gill & J. (Md.) 185, 35 Am. Dec. p. 205a; Bradley v. Lightcap, 195 277; Fay v. Cheney, 14 Pick. V. S. 1, 2, 49 L. Ed. 65, 24 Sup. Ct, (Mass.) 399; Jackson v. De Lancy, 748. 13 Johns. (N. Y.) 535; Moore v. 10 Douglass V. Durin, 51 Me. 121; Cornell, 68 Pa. St. 320. Taft V. Stevens, 3 Gi-ay (Mass.) 12 Goodman v. White, 26 Conn. 504; Jackson V. Delancey, 11 Johns. 317, 322; Farrell v. Parlier, 50 111. (N. Y.) 365; White v. Rlttenmyer, 274; Osborne v. Tunis, 25 N. J. L. PEOPERTY WHICH MAY PASS. 307 has a certain time within which to redeem, either fixed by statute or in the decree of foreclosure, designated generally as the equity of redemption. The deed to the property sold in a suit in equity to foreclose the mort- gage, does not pass to the purchaser until the expiration of the period of redemption. The interest of the mort- gagor under the modern theory is, prior to foreclosure, a legal estate in land which would descend to his heirs ; and even though the legal estate may have been wiped out by foreclosiire, yet so long as the mortgagor has the equitable right of redemption, although it is not real estate, it is now regarded as having the qualities of a legal estate and will descend to the heir or pass to the devisee of the deceased mortgagor.'* §257. Choses in Action and Other Personal Property. Persohal property does not descend to the heir at law of a decedent, but becomes a part of his estate for the purposes of administration and distribution. The old rule as to the non-devisability of after-acquired real property never pertained to personalty." Upon the death of a decedent his personal property passes into the hands of his executor or administrator. This includes choses in action which it is the duty of the administrator or executor to collect and adjust. All personal property, 633; Kendall v. Treadwell, 14 How. 14 Smith v. Edrington, 8 Cranch Pr. (N. y.) 165. (U. S.) 66, 3 L. Ed. 490; Marshall's 13 Howard v. Harris, 1 Vem. Heirs v. Porter, 10 B. Mon. (49 190; Seton v. Slade, 7 Yes. Jun. Ky.) 1; Haven v. Foster, 14 Pick. 265; Casborne v. Scarfe, 1 Atk. (Mass.) 534, 539; Wait v. Belding, 603; Dunning v. Ocean Natl. Bank, 24 Pick. (Mass.) 129; McNaughton 61 N. Y. 497, 19 Am. Rep. 293; v. McNaughton, 34 N. Y. 201; Clark V. Seagraves, 186 Mass. 430, Nichols v. Allen, 87 Tenn. 131, 71 N. E. 813; Wambold v. Scholl, 9 S. W. 430. 12 Montreal L. R. 173. 308 COMMENTAEIES ON THE LAW OF WOiLS. including clioses in action, may be bequeathed, possession in the testator not being essential.^^ It is the right and duty of the executor or administrator to enforce the con- tractual obligations due to the decedent,^^ but if there has been a bequest of some chose in action or some arti- cle of personal property to a specific legatee, such legatee may, with the consent of the executor or administrator, sue for and recover the same ; but in the absence of a spe- cific bequest of the right of action or without consent therefor having been given by the executor or adminis- trator, the legatee of a chose in action has no right, in his own name, to enforce the obligation, except in those jurisdictions where such right is given by the statute.^'^ And as to personal property acquired by a testator sub- sequent to the execution of his will, it is presumed that he intended all such property to pass where he makes a general or residuary bequest of such property or the remainder thereof, but if an intention to the contrary is clearly shown, such intention prevails.^* 16 Puryear v. Beard, 14 Ala. 121; eighteen and twenty-one disposing Smith V. Townes's Admr., 4 Munf. of his interest in property which (Va.) 191. had been devised by his father to 16 Smith V. Townes' Admr., 4 his mother for the term of her Munf. (Va.) 191. natural life and at her death to 17 Hayes v. Hayes, 45 N. J. Bq. be sold and the proceeds to be 461, 17 Atl. 634. divided equally among their chil- 1 8 Van Vechten v. Van Veghten, dren, was held valid although his 8 Paige (N. Y.) 104. mother did not die until some Where a statute provided that thirty years after the death of "all persons over the age of the son making the will. The in- eighteen years by their last will terest was vested in the testator, and testament may dispose of their only the time of enjoyment being personal property," the will of postponed. — Allen v. Watts, 98 Ala. a person between the ages of 384, 11 So. 646. PEOPEETT WHICH MAT PASS. 309 § 258. Benefits Arising Prom a Policy of Life Insurance: Dis- tinguishing Features. The benefits to be derived from a policy of insurance issued upon the life of the testator and payable to him, his administrators, executors or assigns, may be disposed of by -will.i^ This rule holds good even though there is a statutory provision that moneys derived from a policy of life insurance shall not become a part of the estate of the insured upon his demise, for the payment of his debts, but shall go to his wife and children.^" ! There is a clear distinction in the authorities between policies of insurance payable to a designated beneficiary, and those made payable to the executors or adminis- trators of the assured.^^ Fine distinctions are sometimes drawn regarding the terms by which the beneficiaries are 19 Stoelker v. Thornton, 88 Ala. 241, 6 L. R. A. 140, 6 So. 680; Blouin V. Phaneuf, 81 Me. 176, 178, 16 Atl. 540; Fox v. Senter, 83 Me. 295, 22 Atl. 173; Golder v. Chand- ler. 87 Me. 63, 32 Atl. 784; Aveling V. Northwestern Masonic A 1 d Assn., 72 Mich. 7, 1 L. R. A. 528, 40 N. W. 28; Sherman v. Howes, (R. I.) 97 Atl. 16; Williams v. Car- son, 9 Baxt. (68 Tenn.) 516; Cath- olic Knights of America v. Kuhn, 91 Tenn. 214, 18 S. W. 385. A bequest made by a decedent to his widow of ten thousand dol- lars to be realized out of the pro- ceeds of such insurance as was in force on his life at the time of his death, was limited to such amount although such insurance exceeded ten thousand dollars and the widow was named as bene- ficiary in one policy for part of tjie amount. The portion received directly as a beneficiary was counted as a part of the tea thou- sand. — Kramer v. Lyle, 197 Fed. 618. A policy of fire insurance held by a decedent at the time of his death on property then owned by him, passes to the heir or devisee of the property, and should loss occur, the heir or devisee can col- lect the insurance. — Grant v. Eliot and Kittery Mutual Fire Ins. Co., 75 Me. 196; Wyman v. Prosser, 36 Barb. (N. Y.) 368; Wyman v. Wy- man, 26 N. Y. 253. 20 Hamilton v. McQuillan, 82 Me. 204, 19 Atl. 167; Fox v. Senter, 83 Me. 295, 22 Atl. 173. 21 Fletcher v. Williams, (Tex. Civ. App.) 66 S. W. 860. 310 COMMENTARIES ON THE LAW OF WILLS. designated; thus, where a beneficiary certificate of an order provided that it was to be paid to the "legal repre- sentatives" of a member, it was held that a residuary legacy in the will of a deceased member caused the bene- fits to pass to the legatee.^^ Yet where a policy of insur- ance was payable to the "legal heirs" of the insured, unless otherwise directed by will, it was held that the benefits passed to such "legal heirs" as designated in the policy, and did not become a part of the estate of the decedent. In the instance last mentioned, although the testator had a right to direct by will to whom the benefits should pass, yet the direction in his testament, after having made certain dispositions, that the balance of his "property of all kinds" should be divided between his brother and sister, was held not to be the appointment of a beneficiary.** A distinction has also been made between a case where the interest of one is in an insurance policy on the life of another, in which instance any general residuary legacy, without specially designating the interest, would carry the benefits, and one where the policy is on his own life, in which case the testator must iJarticularly express his 22 Walker v. Peters, 139 Mo. Life Assur. Co., 97 Mass. 359; App. 681, 124 S. W. 35. Bailey v. New England Mutual A policy of Insurance, payable Life Insurance Co., 114 Mass. 177, at death to the insured, his exeou- 19 Am. Rep. 329. tors, administrators and assigns, Note — In many states, the bene- for the benefit of the wife, if any, fits received from a policy of in- of the insured, can properly he surance on the life of the deceased collected, after the death of the and made payable to his estate. Insured and there having been no are, to a fixed sum, varying in assignment, only by the executor the different jurisdictions, exempt or administrator of his estate, and from execution and the payment it would be general assets in their of claims against the estate, hands, liable to the payment of 23 Graham v. Allison, 24 Mo. debts. — Burroughs v. State Mut. App. 516. PROPERTY WHICH MAY PASS. 311 intentions, since in such cases the statutes, generally, make special provision for the distribution of the money.^* §259. The Same Subject: When Payable to the Estate of the Insured, for the Benefit of His Wife and Children. Where a policy of life insurance is made payable, upon the death of the insured, to his executors, administrators and assigns ' ' for the benefit of his widow, if any, and his then surviving child or cldldren," the rights of the widow and children are fixed by the policy. Their rights can not be affected by the -will of the deceased or disposed of in that manner f^ and the fact that the wife had died before the insured would not pass her interest into his estate so as to allow him to dispose of it by will.^® The interest of a wife in a policy of insurance on the life of her husband, taken out by him for her benefit, and in the event of her death before his, then for their children, does not be- come community property. Such a policy is for her sep- arate use and the benefits thereof do not, accrue until after his death. Should she die before her husband, imder the provisions above mentioned the children of their union would receive the proceeds.^'' But if at the death of the wife there are no children, the benefits under the policy will pass under a bequest of the same in the 24 Hathaway v. Sherman, 61 Me. cease failed to take the necessary 466; Small v. Jose, 86 Me. 120, 29 steps to appoint a beneficiary in Atl. 976. her place, but attempted to dis- 25 Gould V. Emerson, 99 Mass. pose of the interest in the policy 154, 96 Am. Dec. 720. by will, the heirs of the deceased In Olmstead v. Masonic Mutual wife were entitled to recover. Benefit Soc, 37 Kan. 93, 14 Pac. 26 Small v. Jose, 86 Me. 120, 29 449, it was held that where a Atl. 976. person who had insured his life 27 Evans v. Opperman, 76 Tax. for the benefit of his wife or her 293, 13 S. W. 312. legal representatives, after her de- 312 COMMENTARIES ON THE LAW OP WILLS. husband's will, notwithstanding the wife may have made a devise of her alleged interest to another.^* §260. The Same Subject: When Payable to a Specified Bene- ficiary. An insurance policy taken out by one on his own life for the benefit of some specified beneficiary, with the full understanding between the insured and the beneficiary that it is taken out for such purpose, constitutes a valid settlement and nothing remains to complete it. It is a good trust. Although the insured may not have agreed to pay the future premiums and can not be compelled to do so, yet he can not change the beneficiary, by will or otherwise, without the consent of the one first desig- nated as such.^^ § 261. Benefits Accruing From Membership in Mutual Benefit Societies. The benefits derived from membership in a mutual benefit organization depend largelj' upon its constitution 28 Harvey v. Van Cott, 71 Hun 29 Weston v. Richardson, 47 L. T. 394, 25 N. Y. Supp. 25. (N. S.) 514; Cliapin v. Fellowes, Where the decedent had made 36 Conn. 132, 4 Am. Rep. 49; a post-nuptial of three insurance Lemon v. Phoenix Mut. Life Ins. policies in trust for his wife for Co., 38 Conn. 294; Wilburn v. Wil- life and after her death to his bum, 83 Ind. 55; Weisert v. Muehl, appointees, and in default of such 81 Ky. 336; National Life Ins. Co. appointment, in trust for the chil- v. Haley, 78 Me. 268, 57 Am. Rep. dren of their marriage, the wife 807, 4 Atl. 415; Pingrey v. Na- dying and leaving children of their tional Life Ins. Co., 144 Mass. 374, union, it was held upon the death 11 N. E. 562; Rlcker v. Charter of the insured (the husband) that Oak L. Ins. Co., 27 Minn. 193, the fund became part of his estate 38 Am. Rep. 289, 6 N. W. 771; and liable for the payment of his Barry v. Brune, 71 N. Y. 261, 268; debts, and for distribution. — Mac- Manhattan Life Ins. Co. v. Smith, kenzie T. Mackenzie, 3 MacN. & 44 Ohio St. 156, 58 Am. Rep. 806, G. 559. 5 N. B. 417. PROPERTY WHICH MAT PASS. 313 and rules. If the by-laws pro\'ide for benefits for the wife and children of members, and also that any brother has the right to bequeath sucli amount to other persons by having such designation inserted in a book kept by the lodge for that pvirpose, a member who fails to nomi- nate his beneficiary in the manner stated, can not do so by making a bequest of such benefits in his will. The lodge only agrees to make pajnnents to those designated in a certain manner, and if no one is so specified, no pay- ments can be enforced.^" Persons joining such societies agree, upon becoming members, to conform to the consti- tution and by-laws, and such agreement holds, even though the constitution and by-laws be amended. Where the rules provide for the designation of a beneficiary in a certain manner,'and if none is named or if named, dies before the member, that the benefits shall go to certain relatives, the rules control, and the bequest of a deceased member would not pass the fund to the legatee. This is especially true where the laws of the society contain no provision for the changing of beneficiaries.*^ In a Cali- fornia case the court went further and held that where a beneficiary had been named by a member, there re- mained nothing which was subject to his testamentary disposition, and that a will providing as follows: "I also give to my son Frank the money which will become due from said Uniao Portugeza de Estado," could not be con- so Kentucky Masonic Mutual l. 7 Daly (N. Y.) 168; Greeno v. Ins. Co. V. Miller's Admrs., 13 Bush Greeno, 23 Hun (N. Y.) 478; Hel- (76 Ky.) 489; Maryland Mutual lenberg v. District No. One of Benevolent Soc. v. Clendinen, 44 I. O. B. B., 94 N. Y. 580. Md. 429, 22 Am. Rep. 52; Ricli- si DeSilva v. Supreme Council, mond V. Johnson, 28 Minn. 447, 109 Cal. 373, 42 Pac. 32; Masonic 10 N. W. 596; Arthur v. Odd Fel- Mutual Benefit Assoc, v. Severson, lows' Beneficial Assn., 29 Ohio St. 71 Conn. 719, 43 Atl. 192. 557; Durian v. Central Verein etc.. 314 COMMENTARIES ON THE LAW OP WILLS. sidered as a substitution or as a revocation of benefi- ciaries, and passed notbing.^^ Yet wbere a member of a mutual benefit society bad designated his beneficiaries but bad reserved the right to change them, and later had made his will wherein he revoked his former action and directed that the benefits be divided in a specified man- ner, such directions controlled in so far as they named the beneficiaries, but the fund did not become a part of the estate of the decedent.^* § 262. Claims Against the Government : When They May Be Bequeathed. A claim against the government for supplies appropri- ated, is property; a claim for compensation for the use or appropriation of tangible property is personal prop- erty.^* Such a claim, when paid by the government, is not a mere gratuity ; if paid after the death of the claim- ant, it is a property right which will pass under a gen- eral residuary clause of the claimant's "nill, although he may have died many years previously.^^ 32 DeSilva v. Supreme Council, A claim for compensation against 109 Cal. 373, 42 Pac. 32. the government for supplies appro- 33 Catholic Ben. Assoc, v. Priest, priated by soldiers in time of war- 46 Mich. 429, 9 N. W. 481. fare may be bequeathed; it is not 34 Comegys v. Vasse, 1 Pet. a mere gratuity, but extends to (U. a.) 193, 7 L. Ed. 108; Erwin v. the heirs at law of the claimant. — United States, 97 U. S. 392, 24 Camp v. Vaughan, 119 Ga. 131, 46 L. Ed. 1065; Phelps v. McDonald, S. E. 79. 99 U. S. 298, 25 L. Ed. 473; Bach- 35 Camp v. Vaughan, 119 Ga. 131, man v. Lawson, 109 XJ. S. 659, 46 S. E. 79; Pierce v. Stidworthy, 27 L. Ed. 1067, 3 Sup. Ct. 479; 79 Me. 234, 9 Atl. 617. Williams v. Heard, 140 TJ. S. 529, Compare: Ware v. Trustees of 35 L. Ed. 550, 11 Sup. Ct. 885; Emory College, 65 Ga. 283; Dun- Grant V. Bodwell, 78 Me. 460, 7 Atl. lap v, Dunlap, 74 Me. 402. 12; Leonard v. Nye, 125 Mass. 455. PROPERTY WHICH MAT PASS. 315 Where the statutes of the United States provide that certain claims shall, in the event of the death of the claimant, be paid to the widow or some designated rela- tive, the statutes control and the claim can not be disposed of by the will of the claimant. Thus after the death of a pensioner, accrued pensions to the date of his death go to his widow, or children if she be dead, and can not be bequeathed.^® § 263. Limitations Upon Devises for Charitable Purposes. Devises and legacies for charitable purposes may prop- erly be regulated by statute. The law may limit the percentage of an estate which may be willed to char- ity, and any devise or bequest in excess of such amount is invalid.®'' In determining the amount or percent- age, the estate is taken at its value at the time of the death of the testator, not including, however, the ex- penses of administration.®* Where a will contains a devise in lieu of dower, if the widow does not consent to accept the provisions of the will in lieu of dower, the value of the widow's dower is to be deducted from the gross value of the estate in determining whether or not 36 In re Van Horn, 5 N. J. L. J. dispose of the moneys provided by 372_ its constitution to be paid to cer- In Reed v. Reed, 53 Me. 527, tain relatives, of any member after the right of a volunteer soldier to his death. bequeath his claim for back pay si Estate of Friedman, 171 Cal. and bounty was denied since the 431, 153 Pac. 918. statute provided that his father 38 Hughes v. Stoutenburgh, 168 v^as entitled to receive the same App. Div. 512, 154 N. Y. Supp. 65; after his death. In re Brooklyn Trust Co., 92 Misc. In Webb v. Meyers, 64 Hun 11, Rep. 695, 157 N. Y. Supp. 671; In re 18 N. Y. Supp. 711, it was held Colburn's Estate, 157 N. Y. Supp. that a member of the New York 676. Stock Exchange could not, by will. 316 COMMENTARIES ON THE LAW OF WILLS. the testator lias disposed of, for charitable uses, an amount greater than the percentage allowed by law; but if she elects to accept the provisions of the will in lieu of her dower rights, then the dower is released as of the date of the testator's death and no deduction is made therefor from the estate of the husband.*® The testator can not evade the statute by devising to designated persons certain property in excess of the amount which by law may be left to charity, absolutely, but with an understanding that the property will be used for charitable purposes.*" And where the statute pro- vides that such charitable devises or bequests shall be valid only if executed at least a specified time prior to the testator's death, any devise or bequest to charity made by the testator within a shorter time before his de- mise, is invalid.*^ § 264. No Property Rights in a Corpse : Right of Burial. The general rule seems well established that, in the ab- sence of a statute to the contrary', the body of a deceased testator will not pass under his will or become a part of his estate, the corpse not being property. In some cases it has been said that the next of kin have the right to the body, for the purpose of a proper burial, but the right of disposing of the body by will was not involved.*^ "There 39 Lord V. Lord, 44 Misc. Rep. re Smith's Exr., 85 Misc. Rep. 636, 530, 90 N. Y. Supp. 143 ;■ Hughes v. 149 N. Y. Supp. 24. Stoutenburgh, 168 App. Ettv. 512, 42 DureU v. Hayward, 9 Gray 154 N. Y. Supp. 65. (Mass.) 248, 249, 69 Am. Dec. 284; 40 Durkee v. Smith, 171 App. Div. Larson v. Chase, 47 Minn. 307, 28 72, 156 N. Y. Supp. 920. Am. St. Rep. 370, 14 L. R. A. 85, 41 Estate of Budd, 166 Cal. 286, 50 N. W. 238; In re Widening 135 Pac. 1131; Ely v. Ely, 163 App. Beekman St., 4 Bradf. Surr. Div. 320, 1'48 N. Y. Supp. 691; In (N. Y.) 503; Foley v. Phelps, 1 PROPERTY WHICH MAT PASS. 317 can be no property in the dead body of a buman being," therefore it not being property, a man can not dispose of his dead body by will.** App. Div. 551, 37 N. Y. Supp. 471; Wynkoop v. Wynkoop, 42 Pa. St. 293, 82 Am. Dec. 506; Pierce v. Proprietors of Swan Point Ceme- tery, 10 R. I. 227, 14 Am. Rep. 667. A surviving husband or wife has the first right to bury the remains of the other. — Durell v. Hayward, 9 Gray (Mass.) 248, 69 Am. Dec. 284; Hadsell v. Hadsell, 3 Ohio C. D. 725, 7 Ohio Cir. Ct. Rep. 196; Hackett v. Hackett, 18 R. I. 155, 49 Am. St. Rep. 762, 19 L. R. A. 558, 26 Atl. 42. The surviving husband or wife, or the next of kin, has the right to bury a corpse and to preserve and protect the remains, which In- cludes the right to preserve them by separate burial, to select the place of sepulture, and to change it at pleasure. — O'Donnell v. Slack, 123 Cal. 285, 43 L. R. A. 388, 55 Pac. 906. 43 Williams v. Williams, L. R. 20 Ch. Div. 659; Regina v. Sharpe, Dea. & Bell. C. C. 160; In re Wong Yung Quy, 2 Fed. 624, 6 Sawy. 442; Enos v. Snyder, 131 Cal. 68, 82 Am. St. Rep. 330, 53 L. R. A. 221, 63 Pac. 170; Guthrie v. Weaver, 1 Mo. App. 136; Griffith V. Charlotte etc. R. Co., 23 S. C. 25, 55 Am. Rep. 1. CHAPTER XII. THE LAW WHICH GOTBKNS IN CASES OF CONFLICT. § 265. Scope of chapter. § 266. The term "domicile" defined. § 267. "Domicile" is a question of fact. § 268. Domicile of married women. § 269. Rights in real property are governed by the law of the § 270. Succession to personal property is governed by the law of the domicile of the decedent. § 271. Devises of real property are controlled by the law of the § 272. Intention of the testator : By which law governed. § 273. Bequests of personal property : General rule is that law of testator's last domicile controls. §274. The same subject: Decisions to the contrary. § 275. Effect of a change of domicile by the testator subsequent to executing his will. § 276. Law governing the rights of a wife or child. § 277. Statutory regulations as to foreign wills. § 278. Chattels real : Difference between English and American rule. § 279. English rule as to bequests of personalty: Statutory reg- ulations. § 280. Power of appointment exercised by will. § 281. Recording certified record of the probate of a foreign will. § 282. Ancillary administration. § 283. Charitable devises and bequests : Perpetuities : By which law governed. § 284. The same subject : Illustration of the general rule. (318) WHICH LAW GOVERNS. 319 § 285. The same subject : To the contrary. § 286. The same subject : Purpose of statutes explained. § 287. Taxes upon the right to acquire property by will or under the laws of succession. § 288. The same subject: Real property: When converted into personalty. § 289. The same subject : As to transfers under a power of appointment. §290. The same subject: The rule that personal property fol- lows the owner, not controlling. § 291. The same subject : Taxes as to personalty sometimes gov- erned by law of domicile. § 292. The same subject : Situs as applied to personal property. §293. The same subject: "Tangible or intangible" personal property. § 294. The same subject: Bonds and certificates of stock of cor- porations distinguished. § 295. The same subject: What is "property within the state?" § 296. The same subject: English rule. § 265. Scope of Chapter. Eeal and personal property may pass to the heir at law and the next of kin of an intestate decedent under the laws of succession. A surviving husband or wife may have rights in the real property of which the other was seized during his or her lifetime, under the laws regulating estates by curtesy or of dower ; or either sur- vivor may have rights in all property acquired during coverture, under laws relative to community property, adopted from the French system and prevailing gener- ally in the western and southern parts of the United States. Or a decedent may have left a will disposing of all his estate consisting of both real and personal property. The will may have been executed in one juris- 320 COMMENTAKIES ON THE LAW OP WILLS. diction; the testator, when he made his will, may have been domiciled in a state or country other than that where it was executed; subsequently the testator may have changed his domicile and the laws of the various jurisdictions may also have been altered or modified ; the real property and the personal property of the dece- dent, both before and at the time of his death, may have been physically located in several different jurisdictions. The question then is, to which jurisdiction are we to look for the law governing the passing of the property; and further, which law controls, that in effect when the will was made, or that existing at the time of the death of the testator or intestate decedent? And a charitable bequest may be valid in one state, but not in another. There is harmony, to an extent, among the decisions relative to general principles involved; but so many jurisdictions have introduced statutory regulations that apparent conflicts arise even as to general rules, and all decisions should be read in the light of legislative enactments. This is particularly true regarding taxes on the transfer of property by wiU or under the laws of succession. §266. The Term "Domicile" Defined. Property may be divided into its two general divisions : Real and personal, personal property, in some instances, being further distinguished as to tangible and intangi- ble. Real property may be said to be immovable; per- sonal property may be classified as movable. Real property, therefore, has a fixed situs, while personal property follows the person — mobilia sequuntur per- sonam. The owner, however, of such personalty may WHICH LAW GOVERNS. 321 have his actual abode within one jurisdiction, but his domicile may be in another state or country. By the term "domicile," in its ordinary acceptation, is meant the place where a person lives or has his home. In this sense, the locality where a person has his actual dwelling or temporary residence is sometimes called his domicile. The place of residence and domicile are generally the same, and the different terms are often used in decisions, and even in our statutes, as if they had the same meaning. In a strict legal sense, domicile and residence are not synonymous; one may have sev- eral places of residence, in the city, country and abroad, but he can have but one domicile.^ That is properly the domicile of a person where he has his true, fixed, per- manent home and principal establishment, and to which, whenever he is absent, he has the animus revertendi or intention of returning. Temporary residence at a place does not constitute it one's domicile.^ 1 Matter of Newcomb's Estate, years in Hamburg and had been 192 N. T. 238, 84 N. E. 950. regularly constituted a burgher of 2 Canfield v. Sullivan, 85 N. Y. that city to enable him to trade 153. there, was held to have elected The word "domicile" in its legal such place as his domicile, and sense signifies a country or terri- that a declaration in his will that tory subject to one system of laws, he had not renounced his domicile and does not refer to any particu- of origin as an Englishman was lar place within the country. — unavailing, it being impossible to. Story, Conflict of Laws, § 41 and have two domiciles at one time, note. In Stanley v. Bernes, 3 Hagg. Domicile is not controlled by Ecc. 373, it was held that a Brit- citizenship or nationality. — Brunei ish subject might acquire a domi- V. Brunei, L. R. 12 Bq. 298 ; Hamil- cile abroad and that his claim to ton V. Dallas, 1 Ch. Div. 257. be considered a British subject In Re Steer, 3 H. & N. 594, an did not destroy his foreign domi- Englishman who resided for many cile. I Com. on Wills— 21 322 COMMENTARIES ON THE LAW OP WILI^. §267. "Domicile" Is a Question of Fact. It is a general principle that, for the purposes of suc- cession, every person must have a domicile somewhere. One can have but one domicile, and the domicile of ori- gin* is presumed to continue until it is proven that a new one has been acquired.* Domicile is controlled by inten- s The domicile of origin, as to a legitimate child, is the domicile of the father.— Udny v. tJdny, L. R. 1 H. L. So. 441; Douglas v. Douglas, L. R. 12 Eg. 617; Firebrace v. Fire- brace, L. R. 4 Pro. Dlv. 63; Pren- tiss V. Barton, 1 Brock. (TJ. S.) 389, Fed. Cas. No. 11,384; Van Matre v. Sankey, 148 111. 536, 39 Am. St. Rep. 196, 23 L. R. A. 665, 36 N. E. 628; Blumenthal v. Tan- nenholz, 31 N. J. Eq. 194; Ken- nedy V. Ryall, 67 N. Y. 379. The domicile of origin, as to an Illegitimate child, is the domicile of the mother. — TJdny v. TJdny, L. R. 1 H. L. So. 441; Van Matre V. Sankey, 148 111. 536, 39 Am. St. Rep. 196, 23 L. R. A. 665, 36 N. B. 628; Louisville etc. R. R. Co. v. Kimbrough, 115 Ky. 512, 74 S. W. 229. "Domicile of origin" is some- times inaccurately designated as "domicile of birth," but the domi- cile of origin, being that of the father or the mother, as the case may be, may not be the place where the child is born. — WInans V. Attorney-General. (1904) A. C. 287. When a minor child has been le- gally adopted he takes the domi- cile of his adopting parents. — Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892. As to an illegitimate child which has subsequently been legltimar tlzed by the marriage of his pa- rents, his domicile of origin would be that of his father. — McNicholl V. Ives, 4 Ohio Dec. 75; Monson V. Palmer, 8 Allen (Mass.) 551. The domicile of an infant dur- ing minority, follows and changes with that of his parents, or the one from whom he took the domi- cile of origin. — Sharpe v. Crispin, L. R. 1 P. & D. 611; Marks v. Marks, 75 Fed. 321; Tsoi Sim v. U. S., 116 Fed. 920, 54 C. C. A. 154; Kelly v. Garrett, 67 Ala. 304, 307; Van Matre v. Sankey, 148 111. 536, 39 Am. St, Rep. 196, 23 L. R. A. 665, 36 N. E. 628; Jen- kins V. Clark, 71 Iowa 552, 32 N. W. 504; Matter of Benton, 92 Iowa 202, 54 Am. St. Rep. 546, 60 N. W. 614; Vennard Succession, 44 La. Ann. 1076, 11 So. 705; Hart V. Lindsey, 17 N. H. 235, 43 Am, Dec. 597; Matter of Rice, 7 Daly (N. Y.) 22; School Directors v. James, 2 Watts & S. (Pa.) 568, 37 Am. Dec. 525; Allen v. Thom- ason, 11 Humph. (Tenn.) 536, 54 Am. Dec. 55. 4 Somervllle v. Somerville, 5 WHICH LAW GOVERNS. 323 tion whicli may be shown by declarations and by the cir- cumstances attending a residence.^ In order to acquire a new domicile there must be the intention to abandon the existing domicile.* Some decisions have held that the Ves. Jun. 750; Attorney-General V. Countess Blucher de Wahlstatt, 3 Hurl. & Colt. 374; Wlnana v. Attorney-General, (1904) A. C. 287; Ennls v. Smith, 14 How. (U. S.) 400, 14 L. Ed. 472; In re Grimes, 94 Fed. 800; State v. Hal- lett, 8 Ala. 159; Merrill's Heirs V. Morrissett, 76 Ala. 433; People V. Moir, 207 lU. 180, 99 Am. St. Rep. 205, 69 N. E. 905; Lebanon V. Biggers, 117 Ky. 430, 78 S. W. 213; Simmons' Succession, 109 La. Ann. 1095, 34 So. 101; Chew v. Wilson, 93 Md. 196, 48 Atl. 708; Abington v. North Bridgewater, 23 Pick. (Mass.) 170; Hallet v. Bassett, 100 Mass. 167, 170; Phil- lips V. Boston, 183 Mass. 314, 67 N. B. 250; Matter of Russell's Estate, 64 N. J. Eq. 313, 53 Atl. 169; Graham v. Public Adminis- trator, 4 Bradf. (N. Y.) 127, 128; Dupuy V. Seymour, 64 Barb. (N. Y.) 156; Bupuy v. Wurtz, 53 N. Y. 556; Harris v. Harris, 83 App. Div. (N. Y.) 123, 82 N. Y. Supp. 568; Price v. Price, 156 Pa. St. 617, 27 Atl. 291; Cross v. Everts, 28 Tex. 523. 5 Dupuy V. Seymour, 64 Barb. (N. Y.) 156. 6 Mitchell V. United States, 21 Wall. (U. S.) 350, 22 L.Ed. 584; Illinois Life Ins. Co. v. Shenehon, 109 Fed. 674; Murphy v. Hunt, 75 Ala. 438; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Jain v. Bossen, 27 Colo. 423, 62 Pac. 194; New Haven First Nat. Bank v. Balcom, 35 Conn. 351; Cooper v. Beers, 143 111. 25, 33 N. E. 61; People v. Moir, 207 111. 180, 99 Am. St. Rep. 205, 69 N. E. 905; Ludlow v. Szold, _ 90 Iowa 175, 57 N. W. 676; San- derson V. Ralston, 20 La. Ann.'. .312; Cobb v. Rice, 130 Mass. 231;" Pickering v. Cambridge, 144 Mass. 244, 10 N. E. 827; Dickinson v.; Brookline, 181 Mass. 195, 92 Am. St. Rep. 407, 63 N. E. 331; Clark V. Likens, 26 N. J. L. 207; Craw- ford V. Wilson, 4 Barb. (N. Y.) 504; Pfoutz V. Comford, 36 Pa. St. 420; Rockingham v. Springfield, 59 Vt. 521, 9 Atl. 241; Lindsay v. Murphy, 76 Va. 428. Persons living abroad in the service of their country, such as ambassadors, ministers and con- suls, and those serving abroad in the military or naval branch of their own country, do not lose their domicile by reason of ab- sence because of such service. — Sharpe v. Crispin, L. R. 1 P. & D. 611; Yelverton v. Yelverton, 1 Sw. & Tr. 574, 6 Jur. (N. S.) 24; Udny V. Udny, L. R. 1 H. L. Sc. 460; Firebrace v. Firebraoe, L. R. 4 Pro. Div. 63; Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; Knowl- ton V. Knowlton, 155 111. 158, 39 N. E. 595; Brewer v. Linnaeus, 36 324 COMMENTARIES ON THE LAW OF WILLS. intention to do the one implies the intention to do the other; but in all cases the question of intention is treated as one of fact, to be determined according to the particu- lar circumstances of each caseJ Me. 428; Crawford V. Wilson, 4 Barb. (N. Y.) 504. 7 Moorhouse v. Lord, 10 H. L. Cas. 284; Jopp v. Wood, 4 De G. J. & S. 616, 34 L. J. Bq. 212; Douglas V. Etouglas, L.. R. 12 Eq. 617, 647; Udny v. TJdny, L. R. 1 Scotch App. 441; Hodgson v. De Beaucliesne, 12 Moore P. C. C. 285, 328; Munro v. Munro, 7 CI. &. Fin. 877; Collier v. Rivaz, 2 Curt. 855; Aikman v. Aikman, 3 Macq. H. L. 855, 877; Hallowell v. Saco, S Greenl. (Me.) 143; Ringgold v. Barley, 5 Md. 186, 59 Am. Dec. 107. In Dupuy v. Wurtz, 53 N. Y. 556, the court says: "To effect a change of domicile for the purpose of succession there must be not only a change of residence, but an intention to abandon the former domicile, and acquire another as a sole domi- cile. There must be both resi- dence in the alleged and adopted domicile and Intention to adopt such place of residence as the sole domicile. Residence alone has no effect per se, though it may be most important, as a ground from which to infer inten- tion. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicile." The rule laid down in Moor- house V. Lord, 10 H. L. Cas. 283, 293, was approved in Dupuy v. Wurtz, supra, viz.: "Change of res- idence alone, however long con- tinued, does not effect a change of domicile as regulating the tes- tamentary acts of the individual. It may be, and is, strong evidence of an intention to change the dom- icile. But unless in addition to the residence there is an intention to change the domicile, no change of domicile is made." "The question, what place is any person's domicile, or place of abode, is a question of fact. It is In most cases determinable by a few decisive facts." "In some cases where the facts show a more or less frequent or continued res- idence in two places, either of which would be conclusively con- sidered the person's place of domicile but for the circum- stances attending the other, the Intent of the party to consider the one or the other his domicile will determine it. One rule is that the fact and intent must concur." — Opinion of the Supreme Court judges of Massachusetts, in reply to an interrogation of the House of Representatives. Supplement to 5 Mete. (Mass.) 587, 588, 589, et seq. In Matter of Newcomb's Estate, WHICH LAW GOVERNS. 825 § 268. Domicile of Married Women. The rule is that a woman, by marriage, acquires the domicile of her husband, and thenceforth, until death or divorce, the domicile of both is the same.* This rule ap- 192 N. Y. 238, 84 N. E. 950, the court says: "As domicile and res- idence are usually in the same place, they are frequently used, even in our statutes, as if they had the same meaning; but they are not identical terms, for a per- son may have two places of resi- dence, as in the city and country, but only one domicile. Residence means living in a particular lo- cality; but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place; while domicile requires bodily presence in that place, and also an intention to make it one's domicile. The ex- isting domicile, whether of origin or selection, continues until a new one is acquired, and the burden of proof rests upon the party who alleges a change. . . . Mere change of residence, although con- tinued for a long time, does not effect a change of domicile; while a change of residence, even for a short time, with the intention in good faith to change the domicile, has that effect" Following the above rule, it was recently decided that a testator had retained his domicile in the state of New York under the facts proven as to his intention, not- withstanding for many years he had resided in Paris, France. — United States Trust Co. v. Hart, 150 App. Div. 413, 135 N. Y. Supp. 81. 8 Munro v. Munro, 7 CI. & Fin. 842; Donegal v. Donegal, 1 Add. Ecc. 19; In re Daly's Settlement, 25 Beav. 456; Goulder v. Goulder, (1892) P. 240; Guest v. Guest, 3 Ont. Rep. 344; Magurn v. Ma- gurn, 11 Ont. App. 178; Anderson V. Watts, 138 U. S. 694, 34 L. Ed. 1078, 11 Sup. Ct 449; Talmadge's Admr. v. Talmadge, 66 Ala. 199; New Haven First Nat. Bank v. Balcom, 35 Conn. 351; Wingfield V. Rhea, 73 Ga. 477; Cooper v. Beers, 143 111. 25, 33 N. B. 61; Galvin v. Dailey, 109 Iowa 332, 80 N. W. 420; Modern Woodmen of America v. Hester, 66 Kan. 129, 71 Pac. 279; Boreing v. Borelng, 114 Ky. 522, 71 S. W. 431; Burlen V. Shannon, 115 Mass. 438; Wat- kins V. Watkins, 135 Mass. 83; Spaulding v. Steel, 129 Mich. 237, 88 N. W. 627; Isaacs v. Isaacs, 71 Neb. 537, 99 N. W. 268; Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Harris v. Harris, 83 App. Div. (N. Y.) 123, 82 N. Y. Supp. 568; Hammond v. Ham- mond, 103 App. Div. (N. Y.) 437, 93 N. Y. Supp. 1; Moore v. Moore, 130 N. C. 333, 41 S. E. 943; 326 COMMENTABIES ON THE LAW OP WILLS. plies even though the husband and wife may actually reside in separate abodes.® One exception to the rule, however, is that the wife, for the purpose of divorce, may acquire a separate residence or domicile from that of her husband." After the death of her husband, the widow retains his domicile until she acquires a new one, and in the event of a divorce, as to the woman, the situa- tion is the same. § 269. Rights in Real Property Are Governed by the Law of the Situs. The universal rule is that real property descends ac- cording to the law of the situs as it exists at the time of the death of the owner." The right of a widow to her Dougherty v. Snyder, 15 Serg. & R. (Pa.) 84, 16 Am. Dec. 520; Cone V. Cone, 61 S. C. 512, 39 S. B. 748; Hascall v. HafEord, 107 Tenn. 355, 89 Am. St Rep. 952, 65 S. W. 423. 9 Warrender v. Warrender, 2 CI. & Fin. 488; Dolphin v. Robins, 7 H. L. Cas. 390; Cheely v. Clayton, 110 V. S. 701, 28 L. Ed. 298, 4 Sup. Ct. 328; Anderson v. Watts, 138 V. S. 694, 34 L. Ed. 1078, 11 Sup. Ct. 449; Loker v. Gerald, 157 Mass. 42, 34 Am. St. Rep. 252, 16 L. R. A. 497, 31 N. B. 709. 10 For the purposes of a divorce a wife may acquire a separate res- idence or domicile from that of her husband. — Moffatt v. Moffatt, 5 Cal. 280, 281; Sawtell v. Saw- tell, 17 Conn. 284; Hill v. Hill, 68 Ul. App. 366, atfd. 166 111. 54, 46 N. E. 751; Shaw v. Shaw, 98 Mass. 158; Hunt v. Hunt, 72 N. Y. 217, 243, 28 Am. Rep. 129; Arring- ton V. Arrington, 102 N. C. 491, 9 S. E. 200; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33, 443. 11 Nelson v. Bridport, 8 Beav. 547; Duncan v. Lawson, 41 Ch. Dlv. 394; In re Piercy, (1895) 1 Ch. 83; Ware v. Wisner, 50 Fed. 310; Kerr v. Moon, 9 MHieat (U. S.) 565. 6 L. Ed. 161; McGoon V. Scales, 9 Wall. (U. S.) 23, 19 L. Ed. 545; Brine v. Insurance Co., 96 TJ. S. 627, 636, 24 L. Ed. 858, 862; Arndt v. Griggs, 134 V. S. 316, 33 L. Ed. 918, 10 Sup. Ct. 557; De Vaughn v. Hutchinson, 165 IT. S. 566, 41 L. Ed. 827, 17 Sup. Ct. 461; United States v. Pei^ kins, 163 U. S. 625, 630, 41 L. Ed. 287, 16 Sup. Ct. 1073; Plummer V. Coler, 178 V. S. 115, 132, 44 L. Ed. 998, 20 Sup. Ct. 829; Brad- shaw V. Ashley, 180 U. S. 59, 68, WHICH LAW GOVERNS. 327 estate in dower,^^ and the right of a surviving husband to an estate by curtesy,^^ are likewise controlled by the law of the situs. §270. Succession to Personal Property Is Governed by the Law of the Domicile of the Decedent. The universal rule, except where expressly modified by statute, is that the next of kin succeed to the personal property of a decedent according to the law of the domi- cile of the deceased.^* Thus the right of a wife to suc- 45 L. Ed. 423, 21 Sup. Ct. 297; Orr V. Gilman, 183 U. S. 278, 46 L. Ed. 196, 22 Sup. Ct. 213; Greer County V. Texas, 197 TJ. S. 235, 49 L. Ed. 736, 25 Sup. Ct. 437; Grimball v. Patton, 70 Ala. 626; Clark's Appeal, 70 Conn. 195, 39 Atl. 155; CroUy v. Clark, 20 Fla. 849; Cooper v. Ives, 62 Kan. 395, 63 Pac. 434; Sneed v. Ewing, 5 J. J. Marsh (Ky.) 460, 22 Am. Dec. 41; Page v. McKee, 3 Bush (Ky.) 135, 96 Am. Dec. 201; Thomas v. Tanner, 6 T. B. Men. (Ky.) 52, 58; Short v. Galway, 83 Ky. 501, 507, 4 Am. St. Rep. 168; Succession of Packwood, 9 Rob. (La.) 438, 41 Am. Dec. 341; Sevier v. Douglas, 44 La. Ann. 605, 10 So. 804; Cox v. Von Ahlefeldt, 105 La. 543, 30 So. 175; Potter v. Tltcomh, 22 Me. 300; Brewer v. Cox (Md.), 18 Atl. 864; Bloomer V. Bloomer, 2 Bradf. (N. Y.) 339; White v. Howard, 46 N. T. 144; Matter of Barandon's Estate, 41 Misc. Rep. (N. Y.) 380, 84 N. Y. Supp. 937; McCollum v. Smith, Meigs (19 Tenn.) 342, 33 Am. Dec. 147; Dickinson v. Hoomes' Admr., 8 Grat. (Va.) 353. As regards posthumous children, the lex loci rei sitae prevails. — Eyre v. Storer, 37 N. H. 114. As to admitting illegitimate children, see Barlow v. Orde, L. R. 3 P. C. 164. i2Apperson v. Bolton, 29 Ark. 418; Wilson v. Cox, 49 Miss. 538; Jennings v. Jennings, 21 Ohio St. 56; Atkinson v. Staigg, 13 R. I. 725; Lamar v. Scott, 3 Strob. L. (S. C.) 562. If a widow elect In a foreign jurisdiction not to take under the will of her deceased husband, her rights to dower and distribution are controlled by the law of the forum. — ^Wilson v. Cox, 49 Miss. 538. 13 Brewer v. Cox (Md.), 18 Atl. 864. 14 Thompson v. Advocate Gen- eral, 12 CI. & F. 1, 13 Sim. 153; Crookenden v. Fuller, 1 Sw. & Tr. 441; Doglioni v. Crispin, L. R. 1 H. L. 301; Gambler v. Gambler, 7 Sim. 263; Hamilton v. Dallas, 328 COMMENTABIES ON THE LAW OF WILLS, ceed to the personal property of her husband, in the event of his dying intestate, is governed by the law of 1 Ch. D. 257; Munroe v. Douglas, 5 Madd. 379; In re Johnson, (1903) 1. Ch. 821; Armstrong v. Lear, 8 Peters (U. S.) 52, 8 L. Ed. 863; Harrison v. Nixon, 9 Peters (U. S.) 483, 9 L. Ed. 201; Wil- kins V. Ellett, 108 U. S. 256, 27 L, Ed. 718, 2 Sup. Ct. 641; Bid- man V. Martinez, 184 U. S. 578, 46 L. Ed. 697, 22 Sup. Ct. 515; Blackstone v. Miller, 188 U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277; King v. Martin, 67 Ala. 177; Gibson v. Dowell, 42 Ark. 164; Rockwell V. Bradshaw, 67 Conn. 8, 9, 34 Atl. 758; Mitchell v. Word, 64 Ga. 208; Thieband v. Sebas- tian, 10 Ind. 454; Short v. Gal- way, 83 Ky. 501, 507, 4 Am. St. Rep. 168; Abston v. Abston, 15 La. Ann. 137; Potter v. Tltcomb, 22 Me. 300; Gilman v. Oilman, 53 Me. 184; Shannon y. White, 109 Mass. 146; Richardson v. Lewis, 21 Mo. App. 531; Minkler V. Woodruff, 12 Neb. 267; Vande- walker v. Rollins, 63 N. H. 460, 463, 3 Atl. 625; Champollion v. Corbin, 71 N. H. 78, 51 Atl. 674; Harrall v. Wallis, 37 N. J. Eq. 458; Harral v. Harral, 39 N. J. Bq. 279, 51 Am. Rep. 17; Graham V. Public Administrator, 4 Bradf. (N. Y.) 127; Matter of Braith- waite, 19 Abb. N. C. (N. Y.) 113, 10 N. Y. St. Rep. 170; Sherwood T. Wooster, 11 Paige (N. Y.) 441; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec. 581; Mat- ter of Barandon's Estate, 41 Misc. Rep. (N. Y.) 380, 84 N. Y. Supp. 937; Grant v. Reese, 94 N. C. 720; Tucker v. Markland, 101 N. C. 422, 8 S. B. 169; Freeman's Ap- peal, 68 Pa. St. 151; Stent v. Mo- Leod's Bxrs., 2 McCord Eq. (S. C.) 354; White v. Tennant, 31 W. Va. 790, 13 Am. St. Rep. 896, 8 S. B. 596. The law of the testator's domi- cile controls the disposition of personal property by will, or the rights of the heir, in case the owner dies intestate. — Jones v. Habersham, 107 V. S. 174, 179, 27 L. Ed. 401, 2 Sup. Ct. 336; Sickles V. City of New Orleans, 80 Fed. 868, 26 C. C. A. 204; Lawrence v. Kitteridge, 21 Conn. 577, 56 Am. Dec. 385; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec. 581. In Price v. Dewhurst, 8 Sim. 279, Sir Launcelot Shadwell says : "I apprehend that it is now clearly established by a great va- riety of cases which it is not nec- essary to go through in detail, that the rule of law is this: that when a person dies intestate, his personal estate is to be adminis- tered according to the la^ of the country in which he was domi- ciled at the time of his death, whether he was a British subject or not; and the question whether he died intestate or not must be determined by the law of the same country." Distribution is governed by the ■WHICH LAW GOVERNS. 329 Ms domicile at the time of his death.^^ In the event of a wife dying intestate, the right of a surviving husband to share in her personal property is likewise governed by the law of her domicile at the time of her death.^® And, since it is the law in force at the time of death which controls the right to succeed to personal property, sub- sequent changes in the statute are of no effect." law of the testator's domicile. — Estate of Apple, 66 Cal. 432, 6 Pac. 7; Whitney v. Dodge, 105 Cal. 192, 38 Pac. 636. The proceeds of a policy of life insurance made payable to the estate of the insured, in the event of the insured dying intestate, are distributed according to the laws of succession of the last domicile of the deceased. — Matter of Ne- gus, 27 Misc. Rep. (N. Y.) 165, 58 N. Y. Supp. 377; Ellis v. North- western Mutual Life Ins Co., 100 Tenn. 177, 43 S. W. 766. It was held that shares of the capital stock of a bank are per- sonal property, and the owner dy- ing intestate, they will be distrib- uted according to the laws of suc- cession of the last domicile of the deceased. — Lowndes v. Cooch, 87 Md. 478, 40 L. R. A. 380, 39 Atl. 1045. Personal property held in trust by one person for the benefit of another descends in accord with the law of the domicile of the cestui que trust, even though the trustee may be domiciled in a dif- ferent state and although the property may be subject to taxa- tion in such other state. — Yore V. Cook, 67 111. App. 586. 15 Garland v. Rowan, 2 Smedes & M. (Miss.) 617; Richardson v. Lewis, 21 Mo. App. 531; Spier's Appeal, 26 Pa. St. 233. Although a man and woman marry in one jurisdiction, if they subsequently remove to another and acquire a domicile there, at the death of either, the law of the last domicile controls as to the disposition of the personal property. — Matter of Majot's Es- tate, 199 N. Y. 29, 29 L. R. A. (N. S.) 780, 92 N. E. 402. 16 Davison v. Gibson, 56 Fed, 443, 5 C. C. A. 543; Yore v. Cook, 67 111. App. 586. 17 Lynch v. Paraguay Govern- ment, L. R. 2 P. & D. 268; Rem- ington v. Metropolitan Sav. Bank, 76 Md. 546, 25 Atl. 666; Deake's Appeal, 80 Me. 50, 51, 12 Atl. 790. The repeal of the statute re- garding perpetuities subsequent to the death of the testator, held not to affect the construction of his will.— Cody v. Staples, 80 Conn. 82, 67 Atl. 1. Statutes which do not go into effect until after the death of the 330 COMMENTARIES ON THE LAW OF WILLS. In some states statutes have been enacted which affect the general rule, as where a decedent who was domiciled in another jurisdiction at the time of his death left per- sonal property which was physically within the state, such acts have provided that in such instances the per- sonalty could be distributed according to the law of the state rather than the law of the testator's domicile. Such statutes, however, can affect only such personal prop- erty as is actually within the state and imder the juris- diction of its laws.^^ § 271. Devises of Real Property Are Controlled by the Law of the Situs. Although one may be the heir at law or of the next of Mn of a decedent, if named as a beneficiary under the decedent's will, he takes by reason of the devise or be- quest and under the will, not by reason of relationship.^* And a devisee under a will takes a vested interest in the property immediately upon the death of the testator although the probate may be long delayed.^" testator, do not affect the con- Government, L. R. 2 P. & D. 268; structlon of Ms will. — Stoepel v. Hartson v. Elden, 50 N. J. Eq. Satterthwaite, 162 Mich. 457, 127 522, 26 Atl. 561; White v. Howard, N. W. 673; Aganoor's Trusts, 64 46 N. Y. 144. L. J. Ch. 521; Hunter v. Green, is Russell v. Madden, 95 111. 22 Ala. 329. 485; Cooper v. Beers, 143 111. 25, If a corporation is prevented, 33 N. E. 61; Carroll v. McPike, at the time of the death of a tes- 53 Miss. 569; Speed v. Kelly, 59 tator, from taking a legacy or de- Miss. 47. vise under his will, because of 19 Bank of Ukiah v. Rice, 143 the law as it exists at that time, Cal. 265, 76 Pac. 1070. a subsequent change Jn the stat- 20 Touart v. Rickert, 163 Ala. ute will not alter the case, and 362, 50 So. 896; Carter v. Whit- the effect, as to the property in- comb, 74 N. H. 482, 17 L. R. A. volved, is as if the testator died (N. S.) 733, 69 Atl. 779. intestate. — L y n c h v. Paraguay WHICH LAW GOVERNS. 331 Devises of real property must not be confused with be- quests of personalty; the former being immovable and having a fixed situs, while the latter are movable and fol- low the person of the owner. Devises of real property are controlled by the law of the jurisdiction wherein such property is situated, as such law exists at the death of the testator. As to devises of realty the lex loci rei siti controls as to the formalities of execution, testamentary capacity of the testator, and the construction of the in- strument, irrespective of the domicile of the testator or the date or place of the execution of the will.^^ There- fore, if a testator by his will disposes of real estate 21 Trotter v. Trotter, 3 Wils. & S. 407, s. c, 4 Bligh N. S. 502; Bowman v. Reeve, Prec. in Ch. 577; Bovey v. Smith, 1 Vern. 85, 2 Ch. Cas. 124; Brodie v. Barry, 2 Ves. & B. 131; Freke v. Lord Carbery, L. R. 16 Eq. 461; United States V. Crosby, 7 Cranch (IT. S.) 115, 3 L. Ed. 287; Kerr v. Moon, 9 Wheat. (U. S.) 565, 569, 6 L. Ed. 161, 163; Darby v. Mayer, 10 Wheat. (U. S.) 465, 6 L. Ed. 367; Robertson t. Pickrell, 109 U. S. 608, 27 L. Ed. 1049, 3 Sup. Ct. 407; Readman v. Ferguson, 13 App. (D. C.) 60; Varner v. Bevll, 17 Ala. 286; Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703; Murdoch V. Murdoch, 81 Conn. 681, 129 Am. St. Rep. 231, 72 Atl. 290; Crolly V. Clark, 20 Fla. 849; Knight v. Wheedon, 104 Ga. 309, 30 S. B. 794; Carstens v. Murray, 122 Ga. 396, 2 Ann. Cas. 590, 50 S. E. 131; Evansville Ice & Cold Storage Co. V. Winsor, 148 Ind. 682, 48 N. E. 592; Folsom v. Board of Trustees, 210 111. 404, 71 N. E. 384; Peet V. Peet, 229 111. 341, 11 Ann. Cas. 492, 13 L. R. A. (N. S.) 780, 82 N. E. 376; Coombs v. Came, 236 111. 333, 86 N. E. 245; Amrine v. Hamer, 240 111. 572, 88 N. E. 1036; Dibble v. Winter, 247 111. 243, 93 N. E. 145; Calloway v. Doe, 1 Blackt (Ind.) 372; Comelison v. Browning, 10 B. Mon. (Ky.) 425; Crofton T. Haley, 4 Greenl. (Me.) 134, 138; Potter v. Titcomb, 22 Me. 300, 303; Lindsay v. Wilson, 103 Md. 252, 2 L. R. A. (N. S.) 408, 63 AU. 566; Sewall v. Wil- mer, 132 Mass. 131; Jacobs v. Whitney, 205 Mass. 477, 18 Ann. Cas. 576, 91 N. B. 1009; Byre v. Storer, 37 N. H. 114; In re Baran- don's Estate, 41 Misc. Rep. 380, 84 N. Y. Supp. 937; Abell v. Doug- lass, 4 Denio (N. Y.) 305; Knox V. Jones, 47 N. Y. 389; Vogel v. Lehritter, 139 N. Y. 223, 34 N. E. 914; Bailey v. Bailey, 8 Ohio 239; Flannery's Will, 24 Pa. St. 502; Atkinson v. Staigg, 13 R. I. 725; 332 COMMENTARIES ON THE LAW OF WILLS. situated in various states, the disposition in each juris- diction is governed by the law of that jurisdiction. The court in each state wherein the land is situated may con- strue the will and determine the title to the property in so far as the real property within its borders is con- cerned, and the decree of such court is final as to such lands ; but such decree has no effect on lands without the state, nor will it control the decisions of courts in other jurisdictions as to the real property situated therein.^^ The foregoing is the universal rule except as modified by Coy V. Gaye (Tex. Civ. App.), 84 S. W. 441. Compare: Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324. Devises of real property are construed and take effect accord- ing to tlie law of the situs. — United States v. Crosby, 7 Cranch (U. S.) 115, 3 L. Ed. 287; Mc- Goon V. Scales, 9 Wall. (TJ. S.) 23, 19 L. Ed. 545; Missouri K. & T. Trust Co. V. Krumseig, 172 V. S. 351, 355, 43 L. Ed. 474, 19 Sup. Ct. 179; Clarke v. Clarke, 178 U. S. 186, 44 L. Ed. 1028, 20 Sup. Ct. 873; Bradshaw v. Ashley, 180 U. S. 59, 68, 45 L. Ed. 423, 21 Sup. Ct. 297; Orr v. Gilihan, 183 U. S. 278, 286, 46 L. Ed. 196, 22 Sup. Ct. 213. The validity of a will of real property as to its form and exe- cution is governed by the law of the situs. — Topham v. Portland, 1 De G. J. & Sm. 578, 32 L. J. Ch. 257; United States v. Fox, 94 U. S. 315, 320, 24 L. Ed. 192, 193; Rob- ertson V. Plckrell, 109 U. S. 608, 610, 27 L. Ed. 1049, 3 Sup. Ct. 407; Bingham's Appeal, 64 Pa. St. 345; Blount v. Walker, 28 S. C. 545, 6 S. E. 558. A will duly executed in one state with all the formalities re- quired by the laws of another state, and recorded in the latter, controls the disposition of lands situated in such latter state. — Ste- vens V. Larwill, 110 Mo. App. 140, 84 S. W. 113, Rev. Stat. Mo. 1899, § 4383. The probate of a will in one state will not pass land in an- other unless the will is in accord with law of the situs, but this may be changed by statute.— Mc- Cormick v. SuUivant, 10 Wheat. (U. S.) 192, 6 L. Ed. 300; Brine v. Ins. Co., 96 U. S. 627, 24 L. Ed. 858; Robertson v. Pickrell, 109 U. S. 608, 27 L. Ed. 1049, 3 Sup. Ct. 407; Overby v. Gordon, 177 U. S. 214, 44 L. Ed. 741, 20 Sup. Ct. 603. 22 Clark's Appeal, 70 Conn. 195, 39 Atl. 155; McCartney v. Osburn, 118 111. 403, 9 N. E. 210; Knox v. WHICH LAW GOVERNS. 333 statute, as where the jurisdiction of the situs accepts the will of a testator which has been executed according to the law of his domicile or of the place where such Avill was executed. Particular reference must be had to the statutes in all cases. A clause granting both real and personal property to the same beneficiary is severable, the two species of property being controlled by the respective laws which govern the disposition of each.^^ Jones, 47 N. Y. 389; Haywood v. Daves, 81 N. C. 8; Ford v. Ford, 72 Wis. 621, 40 N. W. 502. As to devises of realty, a for- eign will is construed according to the laws of the state wherein the property is situated, irrespec- tive of decisions by the courts of the state wherein the will was executed. — Folsom v. Board of Trustees, 210 III. 404, 71 N. E. 384. Although a will may have been duly executed according to the laws of the state wherein it was made, yet its validity, in so far as it disposed of real property in a different state, is determined by the courts of the state where the property is located, and their de- cision is conclusive. — Monypeny y. Monypeny, 202 N. Y. 90, 95 N. B. 1. In Hosier v. Haines, 7 Ohio C. C. (N. S.) 261, a devise of realty under the will of a testa- tor executed in another state, was construed under the laws of Ohio as to lands situated therein, and it was held that a life estate only was passed, although under ^ the laws of the other state thei' devise would have transferred thei;^ fee. L It has been held that a will of- lands lying in Virginia may be" proved in that state, notwithstand- ing such will had been declared void in the state where the tes- tator resided. — Rice v. Jones, 4 Call (Va.) 89; Morrison v. Camp- bell, 2 Rand. (Va.) 206, 217. Law of situs of real property governs will disposing of same, therefore where a testatrix made her will in California and died within less than thirty days there- after and by such will disposed of property situated in the State of Washington for charitable pur- poses, although such devise was void under the laws of Califor- nia, the court held that the devise must be construed according to the laws of the State of Washing- ton. — In re Stewart's Estate, 26 Wash. 32, 66 Pac. 148, 67 Pac. 723. 23Hughes V. Hughes, 14 La. Ann. 85, 87; Knox v. Jones, 47 N. Y. 389. 334 COMMENTARIES ON THE LAW OP WILLS. §272. Intention of the Testator: By Which Law Governed. As to the intention of the testator which is to be dra\vn from the language of his will, either as to devises of real property or as to bequests of personalty, the general rule is that the intention of the testator is determined by the law of his domicile, irrespective of the situs of the property, for it is assumed that a testator in making his will uses language, the meaning of which can best be explained by the law or usage of his domicile,^* There is some conflict of decision as to whether intention is governed by the law of the domicile at the testator's death or at the date of the execution of his will. The better rule seems to be that the law of the domicile at the date of execution should govern. When a testator executes his will, he expresses the intention then existing, and the language employed would naturally be used in the light of the laws and usages existing at that time. If his wishes change, a testator may alter his dispositions. He has in mind circumstances and conditions surrounding him at the time that he makes his will, and they should govern, subsequent events having no force or effect.^" '^ 24 Maxwell v. Hyslop, L. R. 4 situs.— Ford v. Ford, 80 Mich. 42, Eq. 407, 413; Ford v. Ford, 80 44 N. W. 1057. Mich. 42, 44 N. W. 1057; Crusoe The law of the domicile of the V. Butler, 36 Miss. 150; Wilson v. testator may be considered for the Cox, 49 Miss. 538; In re Warner's purpose of ascertaining the intent Estate, 39 Misc. Rep. (N. Y.) regarding a devise of real prop- 432, 79 N. Y. Supp. 363; McManus erty in another state. — Peet v. V. McManus, 179 N. Y. 338, 72 Peet, 229 111. 341, 11 Ann. Cas. N. JE, 235. 492, 13 L. R. A. (N. S.) 780, 82 Contra: Sevier v. Douglas, 44 La. N. E. 376. Ann. 605, 10 So. 804. 25 Stalgg v. Atkinson, 144 Mass. The adjudication of the forum 564, 12 N. E. 354; In re War- of the domicile of the testator ner's Estate, 39 Misc. Rep. (N. Y.) as to the intention of the testator, 432, 79 N. Y. Supp. 363; Mc- is accepted by the forum of the Manus v. McManus, 179 N. Y. WHICH LAW GOVERNS. 335 Devises of real property and bequests of personalty to a class, such as next of kin, children, brothers, cousins, are to be construed by the law of the testator's domicile; but since the rule is that words descriptive of a class are presumed to refer to those answering the description at the time of the testator's death, the law which would gov- ern would be that of the testator's domicile as it existed at the time of his demise.*^ §273. Bequests of Personal Property: General Bnle Is That Law of Testator's Last Domicile Controls. When a testator makes his will he generally strives to have it conform to all the formalities required by the statutes then existing. When once executed, to him it is a finished affair and unless circumstances arise which 338, 72 N. E. 235; In re Hoffman's Will, 201 N. Y. 247, 94 N. B. 990; Atkinson v. Staigg, 13 R. I. 725. The intention of the testator may be shown from conditions ex- isting at the time the will was ex- ecuted; thus where two residuary legatees died prior to the testa- tor, it was held that the testator was presumed to have expected, when he executed his will, that his dispositions would become ef- fective, and that his intention as to the disposition of the residue was not to be ascertained from events arising subsequent to exe- cution.— In re Hoffman's Will, 201 N. Y. 247, 94 N. B. 990. The law existing at the time of the testator's death is to be ap- plied. — Sumpter v. Carter, 115 Ga. 893, 60 L. R. A. 274, 42 S. B. 324. Since the intention of the tes- tator controls, he may express In his will the law which is to con- trol, such as devising property sit- uated in a foreign jurisdiction to those persons who would take under the law of such foreign jur- isdiction if he should die Intes- tate. — In re Reyle's EJstate, 18 Pa. Co. Ct. 336. 26 In re Ferguson, (1902) 1 Ch. 483; Armstrong v. Lear, 8 Pet. (U. S.) 52, 8 L. Ed. 863; Harri- son V. Nixon, 9 Pet. (U. S.) 483, 9 L. Ed. 201; Ennis v. Smith, 14 How. (U. S.) 400, 14 L. Ed. 472; Hutchinson Investment Co. v. Caldwell, 152 U. S. 65, 68, 38 L. Ed. 356, 14 Sup. Ct. 504; Proctor v. Clark, 154 Mass. 45, 12 L. R. A. 721, 27 N. E. 673; Lincoln v. Perry (Perry v. Aldrlch), 149 Mass. 368, 4 L. R. A. 215, 21 N. E. 671. 336 COMMENTARIES ON THE LAW OF WILLS. cause Mm to alter the dispositions which he has made, it generally remains unchanged; yet on the other hand a will is ambulatory in its nature, revocable during the lifetime of the maker and no interest in the property can pass thereunder until the testator's death. Subse- quent to execution, the testator may change his domicile, thus carrying with him personal property which may be subjected to different laws. Statutes in effect when the will was executed may be altered, modified or repealed, or new formalities for execution may be prescribed. The question therefore arises as to what law governs, whether that in force at the time the will was executed, or that existing at the time of the testator's death. The uni- versal rule is that wills of personal property are gov- erned, as to testamentary capacity, form of execution, and construction, by the law of the testator's domicile,^'' 27 In r© Maraver, 1 Hagg. Ecc. 498; In re Osborne, 1 Dea. & Sev. 4; Robins v. Dolphin, 1 Sw. & Tr. 37, s. c, 7 H. L. C. 390; Price V. Dewhurst, 8 Sm. 279, s. c, 4 Myl. & C. 76; Reynolds v. Kort- right, 18 Beav. 417; Peillon v. Brooking, 25 Beav. 218; An- Btruther v. Chalmer, 2 Sim. 1; Boyes v. Bedale, 1 Hem. & M. 798 ; Bernal v. Bemal, 3 Myl. & C. B59; Story, Conflict of Laws, § 479; Ferraris v. Hertford, 3 Curt. 468; Harrison v. Nixon, 9 Pet. (U. S.) 483, 9 L. Ed. 201; Hussey v. Sar- gent, 116 Ky. 53, 75 S. W. 211; Hyman v. Gasklns, 27 N. C. 267. Compare: Price v. Dewhurst, 4 Myl. & C. 83. "Personal property has no local- ity, but is subject to the law of the owner's domicile, as well in respect to a disposition of it by an act inter vivos as to its trans- mission by last will and testa- ment, and by succession upon the owner dying intestate." — Flatauer V. Loser, 156 App. Div. 591, 141 N. Y. Supp. 951. In Moultrie v. Hunt, 23 N. Y. 394, the court says: "And the Sur- rogate has shown, by an extract from the same author (Judge Story) that a will executed in one country according to the solemni- ties there required, is not to be broken by a change of domicile to a place whose laws demand other solemnities. Of the other judges quoted by the Surrogate several of them lay down rules diamet- rically opposite to those which confessedly prevail In this coun- try and in England. Thus, ToUier, WHICH LAW GOVERNS. 337 but in this respect two lines of decisions have arisen, one holding that the law at the time of execution controls; the other, that the law existing at the death of the tes- a writer on the civil law ot France, declares that the form of testaments does not depend upon the law of the domicile of the tes- tator, but upon the place where the instrument Is in fact exe- cuted; and Felix, Malin and Pothler are quoted as laying down the same principle. But nothing is more clear, upon the English and AmericRn cases, than that the place of executing the will, if it is different from the testator's domicile, has nothing to do with determining the form of the exe- cuting and attesting. In the case referred to from Story's Reports (Grattan v. Appleton, 3 Story 755, Fed. Cas. No. 5707) the will was executed in Boston, but was held to be invalid because it was not attested as required by a provin- cial statute of New Brunswick, which was the place of the testa^ tor's domicile." The decree pf the probate court in Massachusetts as to the valid- ity of the will of personal prop- erty of a testator who had been domiciled in and who died in Mas- sachusetts, was held conclusive upon the court in New York, and that it could not be collaterally attacked on the ground that the will had been obtained by undue influence. — Garvey v. Horgan, 38 Misc. Rep. 164, 77 N. Y. Supp. 290, citing: Mills v. Duryea, 7 Cranch I Com. on Wills— 22 (U. S.) 481, 3 L. Ed. 411; Crippen V. Dexter, 13 Gray (Mass.) 330, 333; Parker v. Parker, 11 Gush. (Mass.) 519; Nelson v. Potter, 50 N. J. L. 324, 15 Atl. 375; Willett's Appeal, 50 Conn. 330. By statute in Illinois, a will of personal property within the state was valid if executed according to the laws of Illinois or if executed and proved according to the place where it was made. — Palmer v. Bradley, 142 Fed. 193, affirmed 154 Fed. 311, 83 C. C. A. 231. "The law of the testator's dom- icile controls as to the formal requisites essential to the validity of the will as a means of transmit- ting property, the capacity of the testator, and the construction of the instrument." — Sickles v. City of New Orleans, 80 Fed. 868, 26 C. C. A. 204, citing Crusoe v. But- ler, 36 Miss. 150; Chamberlain v. Chamberlain, 43 N. Y. 424, 431. In Dupuy v. Seymour, 64 Barb. (N. Y.) 156: The will of a testa- trix whose domicile was in New York and which was executed ac- cording to the laws of that state althoxigh made while she was abroad in France and although she remained abroad continuously and died there more than two years later, was held valid and admitted to probate in New York. — Dupuy V. Wurtz, 53 N. Y. 556, affirmed the above case. 338 COMMENTARIES ON THE LAW OP WILLS. tator governs.^* In this connection bequests of personal property must not be confused with devises of realty, since the latter are controlled by the law of the situs. The general rule, except as modified or changed by stat- ute, is that a will disposing of personal property is gov- erned, as to the formal requisites essential to its valid- ity and as to its construction, by the law in force at the The law of domicile of a testa- tor governs as to the formal re- quirements necessary to consti- tute a valid will disposing of per- sonal property. — Crusoe v. Butler, 36 Miss. 150; Chamberlain v. Chamberlain, 43 N. Y. 424. The construction of wills of per- sonal property is governed by the law of domicile of the testator un- less it is manifest the testator had in mind the laws of some other place. — Harrison v. Nixon, 9 Pet. (U. S.) 483, 9 L. Ed. 201; Wil- kins V. Allen, 18 How. (U. S.) 385, 15 L. Ed. 396; Lanlus v. Fletcher, 100 Tex. 550, 101 S. W. 1076. As to the right and the power of a decedent to make a will dis- posing of personal property, they are governed by the law of the testator's last domicile. — ^Bremer V. Freeman, 10 Moore P. C. C. 306; Vamer v. Bevll, 17 Ala. 286; Sturdivant v. Nelll, 27 Miss. 157; Trimble v. Dzieduzyiki, 57 How. Pr. (N. Y.) 208. Questions as to whether or not legacies of personal property may have lapsed, are determined by the law of the testator's domicile. — Anstruther v. Chalmer, 2 Sim. 1; Lowndes v. Cooch, 87 Md. 478, 40 L. R. A. 380, 39 Atl. 1045. See Lindsay v. Wilson, 103 Md. 252, 2 L. R. A. (N. S.) 408, 63 Atl. 566, as to the statutory effect in Maryland of wills executed out- side of the state but according to the formalities required at the place of execution. 28 A will is ambulatory and rev- ocable during the lifetime of the testator and no estate or interest in the property of the testator can pass thereunder during his life. As to a will which has been executed it has been said that "in one sense It Is, no doubt, a fin- ished affair; but I think it is no more consummated than a bond would be which the obligor had prepared for use by signing and sealing, but had kept in his own possession for future use." It is admitted that the cases are not entirely parallel, but death or delivery are essential in one case or the other. "In the case of a will it requires the death of the party, and in that of a bond the delivery of the Instrument, to In- due It with any legal operation or effect. The existence of a will, WHICH LAW GOVERNS. 339 place of domicile of the testator at the time of his death.^* This rule prevails although the personalty may be actu- duly executed and attested, at one period during a testator's life, is a circumstance of no legal im- portance. He must die leaving such a -will, or the case is one of Intestacy." — Moultrie v. Hunt, 23 N. Y. 394. 29 Bempde v. Johnstone, 3 Ves. Jun. 198; Somerville v. Somer- ville, 5 Ves. Jun. 750; Bremer v. Freeman, 10 Moore P. C. C. 306; Potinger v. Wightman, 3 Mer. 68; In re Prince Peter Georgevitch Oldenburg, L. R. 9 Pro. Div. 234; Lynch v. Paraguay Government, L. R. 2 P. & D. 268; Sickles v. City of New Orleans, 80 Fed. 868, 26 C. C. A. 204; Watkins v. Eaton, 173 Fed. 133 ; West Virginia Pulp & Paper Co. v. Miller, 176 Fed. 284, 100 C. C. A. 176; Smith v. Union Bank, 5 Pet. (U. S.) 518, 519, 8 L. Ed. 212; Harrison v. Nixon. 9 Pet. (U. S.) 483, 9 L. Ed. 201; Turner v. Fenner, 19 Ala. 355; Lawrence v. Kitteridge, 21 Conn. 577, 56 Am. Dec. 385; Ii> win's Appeal, 33 Conn. 128; Mur- doch V. Murdoch, 81 Conn. 681, 129 Am. St. Rep. 231, 72 Atl. 290; Sutton V. Chenault, 18 Ga. 1; Har- groves V. Redd, 43 Ga. 142; Jack- son ex rel. McConnell v. "Wilcox, 1 Scam. (2 111.) 344, 373; Dibble V. Winter, 247 111. 243, 93 N. E. 145; Irving v. McLean, 4 Blackf. (Ind.) 52; Barnes Admr. v. Brash- ear, 2 B. Mon. (Ky.) 380, 382; Coleman v. O'Leary's Exrs., 114 Ky. 388, 70 S. W. 1068; Hussey V. Sargent, 116 Ky. 53. 75 S. W. 211; Hewitt v. Green, 77 N. J. Eq. 345, 77 Atl. 25; Ward v. Stan- ard, 82 App. Div. 386, 81 N. Y. Supp. 906; Bowen v. Hackney, 136 N. C. 187, 67 L. R. A. 440, 48 S. E. ■ 633; Perln v. McMicken's Heirs, 15 La. Ann. 154; Estate of Lewis, 32 La. Ann. 385; Succession of Thomas, 35 La. Ann. 19; Crofton v. Ilsley, 4 Greenl. (Me.) 134, 138; Potter V. Titcomb, 22 Me. 300, 304; Oilman v. Oilman, 52 Me. 165, 83 Am. Dec. 502; Gushing v. Aylwin, 12 Mete. (Mass.) 169; Pray v. Waterston, 12 Meto. (Mass.) 262; Fellows v. Miner, 119 Mass. 541; McCurdy v. Mc- Callum, 186 Mass. 464, 72 N. E. 75; Jacobs v. Whitney, 205 Mass. 477, 18 Ann. Cas, 576, 91 N. E. 1009; Crusoe v. Butler. 36 Miss. 150; Nat v. Coons, 10 Mo. 543; Wakefield v. Phelps. 37 N. H. 295; Lawrence v. Hebbard, 1 Bradf. (N. Y.) 252; In re Blancan, 4 Redf. (N. Y.) 151; Bloomer v. Bloomer, 2 Bradf. (N. Y.) 339; Schultz y. Dambmann, 3 Bradf. (N. Y.) 379; Hunt v. Mootrie, 3 Bradf. (N. Y.) 322; In re Rob- erts' Will, 8 Paige (N. Y.) 519 Parsons v. Lyman, 20 N. Y. 103 Moultrie v. Hunt, 23 N. Y. 394 Chamberlain v. Chamberlain, 43 N. Y. 424; Knox v. Jones, 47 N. Y. 389; Despard v. Churchill, 53 N. Y. 192; Dupuy v. Wurtz, 53 340 COMMENTARIES ON THE LAW OP WILLS. ally situated in another state and although the disposi- N. Y. 556; Williams' Lessee v. Veach, 17 Ohio 171, 49 Am. Dec. 453; Meese v. Keefe, 10 Ohio 362; Thomason's Estate, 13 Phila. (Pa.) 376; Desesbats v. Ber- quier, 1 Bin. (Pa.) 336, 2 Am. Dec 448; In re Beaumont's Es- tate, 216 Pa. 350, 9 Ann. Cas. 42, 65 Atl. 799; Langley v. Lang- ley, 18 R. L 618, 622, 30 Atl. 465; Conover v. Chapman, 2 Bailey (S. C.) 436; Houston v. Houston, 3 McCord L. (S. C.) 491, 15 Am. Dec. 647; In re Elcock's Will, 4 McCord L. (S. C.) 39, 17 Am. Dec. 703; Hamilton v. Flinn, 21 Tex. 713. Compare: Thorne v. Watkins, 2 Ves. Sen. 35; Harvey v. Rich- ards, 1 Mason (tr. S. C. C.) 381, Fed. Cas. No. 6184; Grattan v. Appleton, 3 Story (TJ. S. C. C.) 755, 765, Fed. Cas. No. 5707; Dixon V. Ramsay, 3 Cranch (TJ. S.) 319, 2 L. Ed. 453; United States V. Crosby, 7 Cranch (U. S.) 115, 3 L. Ed. 287; Kerr v. Moon, 9 Wheat. (U. S.) 565, 6 L. Ed. 161; Dorsey's Exr. v. Dorsey's Admr.. 5 J. J. Marsh. (Ky.) 280, 22 Am. Dec. 33; Atchison's Heirs V. Undsey, 6 B. Mon. (Ky.) 86, 43 Am. Dec. 153; Potter v. Tit- comb, 22 Me. 300; Hunter v. Bry- son, 5 Gill & J. (Md.) 483, 25 Am. Dec. 313; Fay v. Haven, 3 Mete. (Mass.) 109; Dawes v. Head, 3 Pick. (Mass.) 128; Davis v. Estey, 8 Pick. (Mass.) 475, 476; Jennison v. Hapgood, 10 Pick. (Mass.) 77, 100; Campbell v. Shel- don, 13 Pick. (Mass.) 8; Richards V. Dutch, 8 Mass. 506; Dawes v. Boylston, 9 Mass. 337, 355, 6 Am. Dec. 72; Stevens v. Gaylord, 11 Mass. 256, 264; Suarez v. Mayor of New York, 2 Sandf. Ch. (N. Y.) 173, 174, 177; Shultz v. Pulver, 3 Paige (N. Y.) 182; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460, 8 Am. Dec 581; Leake v. Gilchrist, 13 N. C. 73; Stent V. McLeod's Exrs., 2 Mc- Cord Eq. (S. C.) 354; Bradley v. Lowry, 1 Spear Bq. (S. C.) 1, 3, 13, 39 Am. Dec. 142. The construction of a will is ac- cording to the law in effect at the time of the death of the tes- tator. — Hasluck v. Pedley, L. R. 19 Eq. 271. In Estate of Learned, 70 Cal. 140, 11 Pac 587, it was held that an olographic will made prior to the enactment of the statute au- thorizing such a will was valid where the testator lived until after the enactment of the law. In Criswell v. Seay, 19 La. 528, it was held that the capacity of the donor to make a gift mortis causa was governed by the stat- ute in effect at the time of the donor's death, because it was not until such time that the donation took effect. The law of the testator's domi- cile controls bequests of personal property, although it may be in another state. — Rackemann v. Taylor, 204 Mass. 394, 90 N. E 552. WHICH LAW GOVEENS. 341 tion of sucli property might be invalid by the laws of the state where the personalty is situated.*" The validity of a will Is deter- mined by tlie laws existing at the time of the death of the testator, subsequent events having no ef- fect.— Rong V. Haller, 109 Minn. 191, 26 L. R. A. (N. S.) 825, 123 N. W. 471, 806; Crawford's Heirs V. Thomas, 114 Ky. 484, 54 S. W. ,197, 55 S. W. 12. i Where subsequent to the execu- tion of a will the laws have been changed annulling former enact- jments regarding the formalities required for the execution of a will and prescribing new require- ments, or annulling statutes re- specting certain future assets, like the Statute of Uses and Trusts, unless the will is valid under the changed law, It is to that extent revoked by statute. — De Peyster v. Clendining, 8 Paige (N. Y.) 295; Bishop V. Bishop, 4 Hill (N. T.) 138; Moultrie v. Hunt, 23 N. Y. 394. As to whether or not interest on legacies may be allowed, is gov- erned by the law of the testator's last domicile. — In re Kucielski's Estate, 49 Misc. Rep. 404, 99 N. Y. Supp. 828. In Hamilton v. Flinn, 21 Tex. 713, it was held that although a will may have been executed with all the formalities required by the law existing at the time it was made yet if subsequently a stat- ute is enacted which prescribes additional formalities with which the will does not comply, if the testator survives until after the passage of such a staj;ute, the will is invalid since it must comply with the requirements of the law in force at the time of the death of the testator. The laws of the state where the testator died and his will was pro- bated and the estate distributed, govern the construction of the will. — App V. App, 106 Va. 253, 55 S. E. 672. As to personal property the rights of legatees under a will are governed by the law of the domi- cile of the testator at the time of his death. — Price v. Dewhurst, 4 Myl. & C. 76; Matter of Bau- bichon, 49 Cal. 18 ; Thomas v. Mor- risett's Estate, 76 Ga. 384; De So- bry V. De Laistre, 2 Har. & J. (Md.) 191, 3 A.m. Dec. 535; Good- all V. Marshall, 11 N. H. 88, 35 Am. Dec. 472; Hutton v. Hutton, 40 N. J. Eq. 461, 2 Atl. 280; Mer- ritt V. Corties, 71 Hun 612, 24 N. Y. Supp. 561; Freeman's Appeal, 68 Pa. St. 151. 30 A will duly executed and ad- mitted to probate in one state may dispose of personal property in another state, although such will would be invalid in the latter state.— Delta Trust & Banking Co. V. Pearce, 92 Miss. 377, 45 So. 981. 342 COMMENTARIES ON THE LAW OP WILLS. §274. The Same Subject: Decisions to the Contrary. Ttere are many decisions contrary to the general rule arid which hold that the law of the testator's domicile in force at the time the will was executed, governs it as to formalities of execution and construction.^^ Under such decisions, statutes enacted subsequent to the making of the will would have no force or effect, although a will is admittedly ambulatory in nature and revocable at the pleasure of the maker. In such decisions, however, the general principle is not denied, but the conclusion is ar- rived at by the construction of the later statutes and by holding them to have no retrospective effect. Thus, where a will disposing of personal property was exe- cuted according to all the formalities prescribed by the law of the testator's domicile at the time the will was made, although a statute subsequently enacted prescribes additional formalities of execution and the like, such stat- ute has been construed to have no retrospective effect and to refer only to wills executed subsequent to its passage. Such construction is based on the principle that retro- spective laws generally work an injustice and that the statutes should be given a prospective effect only unless there is a positive decree in the act that it shall apply to all wills whensoever executed.*^ But in all cases it is 31 Downing v. Townsend, Amb. W. Va. 639, 13 Ann. Cas. 1150, 59 280; Gillmore v. Shooters' Exrs., S. E. 614. 2 Mod. 310; Gaylor's Appeal, 43 32 The cases which hold that the Conn. 82; Lane's Appeal, 57 Conn, law in effect at the time the will 182, 14 Am. St. Rep. 94, 4 L. R. A. was made controls the formalities 45, 17 Atl. 926; Mullen v. McKelvy, of execution rely principally upon 5 Watts (Pa.) 399; Taylor v. the construction of the statute, Mitchell, 57 Pa. St. 209; Roach v. namely, they apply the principle Roach, 25 R. I. 454, 56 Atl. 684; of construction that a statute Giddings v. Turgeon, 58 Vt. 106, 4 should always be interpreted to Atl. 711; Barker v. Hlnton, 62 operate prospectively and not ret- WHICH LAW GOVERNS. 343 tlie rule that as to bequests of personalty, except where respectively, and that therefore, unless the language of the statute clearly expresses a retrospective Intent, it should be given no effect as to wills executed prior to its passage. They hold that when a will is executed the testator has completed the act of disposition, retaining only the power of revo- cation, and there can he no revo- cation unless it is exercised in the manner prescribed by law. It has therefore been held that where the statute is to the effect that "no will or codicil shall be valid to pass any estate unless," etc., such a statute has only a prospective effect and does not invalidate wills sufficiently executed under former laws, although not complying with the requirements which such stat- ute prescribed. — ^Lane's Appeal, 57 Conn. 182, 14 Am. St. Rep. 94, 4 L. R. A. 45, 17 Atl. 926. In Taylor v. Mitchell, 57 Pa. St. 209, the statute under considera- tion was one which provided "that no estate, real or personal, shall hereafter be bequeathed, devised or conveyed 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 same time disinterested witnesses, 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 lega- tee or devisee, next of kin or heirs according to law." The will in question was executed prior to the enactment of the statute and had not been attested by two credit- able and disinterested witnesses, there having been but one witness, which was all that was required when the will was executed. The effect of the decision was that the statute had no retrospective effect and did not affect wills executed before its passage. In deciding the case, the court says: "It is true, that every will is ambulatory until the death of the testator, and the disposition made by it does not actually take effect until then. General words apply to the prop- erty of which the testator dies possessed, and he retains the power of revocation as long as he lives. The act of bequeathing or devising, however, takes place when the will is executed, though to go into effect at a future time. The language of the act of the As- sembly, in its ordinary use and meaning, relates to wills there- after to be made. It is only by a technical construction that it can be made to bear a different sense. Such a construction might justly be applied to a law which on its face appears to be retrospective, in order to restrain it to a retro- spective operation, but It would certainly be a novelty to apply it conversely." In Taylor v. Mitchell, 57 Pa. St. 209, the court further says: "Retrospective laws generally if 344 COMMENTARIES ON THE LAW OF WILLS. there exists a statutory regulation to the contrary, they not universally work Injustice, but ought to tie so construed only when the mandate of the legisla- ture is imperative. When a testa- tor makes a will, formally exe- cuted according to the require- ments of the law existing at the time of its execution, it would un- justly disappoint his lawful right of disposition to apply to it a rule subsequently enacted, though be- fore his death. While it Is true that every one is presumed to obey the law, the maxim in fact is inapplicable to such a case; for he would have the equal right to presume that no new law would affect his past act, and rest satis- fied in security on that presump- tion." In Packer v. Packer, 179 Pa. St. 580, 57 Am. St. Rep. 516, 36 Atl. 344, it was held that "the rule re- lating to the proper execution of a will is that it 'must be judged of by the law as it stood at the time of its execution, and not at the time of the death of the testator.' " In re Tuller's Will, 79 111. 99; 22 Am. Rep. 164, the statute provided that "a marriage shall be deemed a revocation of a prior will." It was held that the statute was pros- pective in effect and had reference only to marriages which should take place thereafter, and did not apply to marriages which had been had prior to the passage of the act. To the same effect, see: Chapman v. Dismer, 14 App. Cas. (D. C.) 446; Colcord v. Conroy, 40 Fla. 97, 23 So. 561; Roane v. Hol- lingshead, 76 Md. 369, 35 Am. St. Rep. 438, 17 L. R. A. 592, 25 Atl. 307; Kelly v. Stevenson, 85 Minn. 247, 89 Am. St. Rep. 545, 56 L. R. A. 754, 88 N. W. 739; Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303; Vandeveer v. Higgins, 59 Neb. 333, 80 N. W. 1043; Booth's Will, 40 Ore. 154, 158, 61 Pac. 1135, 66 Pac. 710; In re Petridge's Will, 47 Wash. 77, 91 Pac. 634; Will of Ward, 70 Wis. 251, 5 Am. St. Rep. 174, 35 N. W. 731; In re Will of Lyon, 96 Wis. 339, 65 Am. St. Rep. 52, 71 N. W. 362. In Giddings v. Turgeon, 58 Vt. 106, 4 Atl. 711, one of the wit- nesses to the will in question was disqualified from acting as such under the law then existing be- cause of being the husband of the legatee. Prior to the death of the testator the law was changed so that the disqualification just men- tioned was removed. It was held, however, the testator dying sub- sequent to the new law, that the law in effect at the time the will was executed controlled. In Barker v. Hinton, 62 W. Va. 639, 13 Ann. Cas. 1150, 59 S. B. 614, the facts showed that the testatrix made her will in 1862, and died in 1901. She was a resi- dent of Virginia at the time the will was made, the law then re- quiring attesting witnesses to sign their names in the presence of the testator but not in the pres- ence of each other. This con- WHICH LAW GOVERNS. 345 are controlled by tlie law of the testator's domicile,'* the conflict being only as to whether the law at execution or at death governs. § 275. Effect of a Change of Domicile by the Testator Subse- quent to Executing His Will. If a testator, subsequent to making a testamentary disposition of personal property, removes to a different tinued to be the law of West Vir- ginia, which was carved out of Virginia in 1863, until it was changed in 1882 so as to require attesting witnesses to sign in the presence of each other and the statute so remained. The point at issue was which statute gov- erned. The decision was that the law existing at the time the will was executed controlled, but the decision was based mainly upon the point that the statute pre- scribing the additional formalities referred to had no retrospective effect and prescribed only that wills executed or re-executed or republished after its date bad to comply with the necessary formal- ities, but that wills executed be- fore its date were not invalidated by the act Contra: The right of an heir or of succession to property is a mere expectancy during the life of the ancestor; it has no force or effect until his death and the rights of heirs or successors must be determined by the laws in ex- istence at the time of the death of the ancestor, in the event of his Intestacy. Any supposed rights which they may have can be de- feated by legislation at any time during the life of the ancestor and such a statute would not be deemed to be retrospective since a will is revocable and no rights can be claimed under it until after the death of the testator. A lega- tee or devisee has no more reason to complain regarding the enact- ment of a statute prescribing ad- ditional formalities with which a former will had not complied than would the heirs have to complain of a change in the law. — Hamil- ton V. Flinn, 21 Tex. 713. 33 In Carey's Appeal, 75 Pa. St. 201, it was held that a will of per- sonal property must be executed according to the law of the domi- cile of the testator. Thus a will of a testator who had his domicile in Pennsylvania and which will was executed according to the Pennsylvania laws, although exe- cuted in Rhode Island and invalid under the laws of that jurisdiction because not attested and sub- scribed by three witnesses, was held valid and admitted to probate In Pennsylvania. 346 COMMENTABIES ON THE LAW OF WILLS. state, or country, and becomes domiciled there, in the event of his death his will is controlled, as to person- alty, by the laws of his last domicile. Should different laws prevail and the will fail to comply with the require- ments of the law of the last domicile of the testator, such change of domicile would, in effect, be a revocation of the bequests, since the personal property could not pass under the instrument.'** § 276. Law Governing the Rights of a Wife or Child. A testator can dispose of only so much of his personal property as is allowed by law, and he can not deprive his wife of the share which the statute allows to her. In this respect the law of the testator's domicile governs. Thus an American who married in France and became domiciled there, came to America and died, having made a will bequeathing all his personal property away from his wife. It was held that his widow was entitled to one- half thereof in accordance with the law of community property of France, notwithstanding the will.'* 33a Irwin's Appeal, 33 Conn. 128; valid. — Isham v. Gibbons, 1 Bradt. Nat V. Coons, 10 Mo. 543; Matter (N. Y.) 69. of Braithwaite, 19 Abb. N. Cas. 34 Harral v. Harral, 39 N. J. Eq. (N. Y.) 113, 10 N. Y. St. Rep. 170; 279, 51 Am. Rep. 17; s. c, Harrall Matter of Coburn, 9 Misc. Rep. v. Wallis, 37 N. J. Eq. 458. (N. Y.) 437, 30 N. Y. Supp. 383; The opposite Is the rule as to Dupuy V. Wurtz, 53 N. Y. 556. realty. Thus, if a testator domi- A will disposing of personal ciled in California where the law property might not comply with of community property prevails, the statutory requirements of the possessing lands in New Jersey, place where executed, or of the the community law of the former domicile of the testator, yet if it state would not apply to the real complies with the law of his estate in the latter. — Pratt v. domicile at his death, it is Douglas, 38 N. J. Eq. 516. WHICH LAW GOVEENS. 347 The general rule is, in the event of the death of a hus- band or father leaving a will which makes no mention of or provision for his wife or his child, that such wife or child is entitled to succeed to the same share of his estate as if he had died intestate. In such a case the right of succession as to personal property is governed by the law of the domicile of the husband or father at the time of his death. The same rule applies as to the rights of a posthumous child.*'' § 277. Statutory Regulations as to Foreign Wills. Statutes have been enacted in many jurisdictions changing the rule that real property can pass only ac- cording to the law of its situs, and that personal prop- erty can pass only according to the law of the testator's doinicile. In some of the states a will made elsewhere in the United States, or in foreign countries, is valid and will pass real and personal property if such will is valid according to the laws of the place where it was made, or of the domicile of the testator.** In some states, S5Harrall v. Wallis, 37 N. J. Abb. N. Cas. (N. Y.) 113, lON.Y Eq. 458; Harral v. Harral, 39 N. J. St. Rep. 170; Trimble v. Dzleduz Eq. 279, 51 Am. Rep. 17; Bloomer yikl, 57 How. Pr. (N. Y.) 208; V. Bloomer, 2 Bradf. (N. Y.) 339; Matter of Ruppaner, 15 Misc. Rep. Matter of Braithwaite, 19 Abb. N. (N. Y.) 654, 37 N. Y. Supp. 429. Cas. (N. Y.) 113, 10 N. Y. St Rep. 36 A statute of a state which 170. authorizes the probate therein of The right of a decedent to dis- a foreign will which has been exe- pose of his entire personal estate cuted according to the laws of the without making provision for his place where the will was made wife or children Is governed by has reference only to the wills of the law of his domicile at the time testators who are nonresidents of of his death. — Matter of Lewis the state at the time of their Estate, 32 La. Ann. 385; Harral deaths. Thus a testator, who was V. Harral, 39 N. J. Eq. 279, 51 Am. domiciled in South Carolina, exe- Rep. 17; Matter of Braithwaite, 19 cuted a will of personal property 348 COMMENTARIES ON THE LAW OF WILLS. as in California, a will of personal property is valid there if valid under the law of the testator 's domicile at with all the formalities required by the laws of that state, but prior to his death removed to New York and became domiciled there. Upon his death in New York it was held that his will had to be construed according to the laws of his domicile at the time of his death, 1. e.. New York, and as the will was not executed according to the formalities required by New York laws of that date, probate was denied. — Moultrie v. Hunt, 23 N. Y. 394. As to a will made elsewhere in the United States being valid and passing real and personal prop- erty, if such will is valid accord- ing to the laws of the ptate or territory where it was made. — Stimson's Ann. Stat. Law, § 2656, referring to statutes of New Hampshire, Massachusetts, Maine, Vermont, Connecticut, New York, Wisconsin, Maryland, Montana, Arkansas, Dakota and Louisiana. By the same authority, the same principle has been extended to wills executed in foreign coun- tries, referring to statutes of New Hampshire, Massachusetts, Maine, Vermont, Connecticut, New York, Wisconsin, Maryland, Kentucky, Dakota, Montana and Louisiana. Louisiana Civ. Code, art. 1596, provides that "testaments made In foreign countries, or a state, or other territories of the Union, shall take effect in this state, if they are clothed with all the for- malities prescribed for the valid- ity of wills in the place where they have been respectively made." This is an exception to the general rule, but it does not change the law as to the construc- tion of the contents of the will, and property in Louisiana must be distributed according to the law of that state. — Succession of Withers, 45 La. Ann. 556, 12 So. 875. Under the laws of Maryland, Code, art. 93, § 327, a will exe- cuted outside the state is valid therein if executed according to the formalities required by the law of the domicile of the testator at the time it was made. Thus a holographic will executed in and valid under the laws of France passed realty situated in Mary- land, although unwitnessed as re- quired in that state. — Lindsay v. Wilson, 103 Md. 252, 2 L. R. A. (N. S.) 408, 63 Atl. 566. In New York, wills of person- alty executed anywhere within the United States, Canada, Great Britain and Ireland, according to the laws of the state or country where it is executed, or executed by a nonresident of the state, ac- cording to the laws of the testa- tor's residence, are admitted to probate, and the fact that the tes- tator may change his residence subsequent to making the will WHICH LAW GOVERNS, 349 the time of his death; but the exception is limited to bequests of personal property, and the provisions of the California law as to charitable bequests apply and may render such bequests void although valid under the law of the testator's domicile.^^ § 278. Chattels Real : Difference Between English and Ameri- can Rule. Chattels real may be described as personal interests in real property and are classified as personalty. Being personalty, they should follow the person of the owner. Such is the general rule, and they are bequeathed as per- sonalty and, in the event of intestacy, pass as such.^^ In England, however, leases for years have been held, for certain purposes, to be immovable and, therefore, having a fixed situs, they do not follow the person of the owner. Consequently in England a testamentary disposition of a leasehold is governed by the law of the situs of the lands which they cover and not by the law of the domi- does not affect its validity as to The former rule in California execution or the construction of was that in the absence of a posi- its provisions.— Consol. Laws of ti"^e law to the contrary, the dis- N Y (1909) D ch 224. position of a decedent's personal '37 In California, under § 1285 of ^^^ate was governed by the law of the Civ. Code, a will made in a ^'^ lomicile.-Estate of Apple, 66 ^. , .-u . Cal. 432, 434, 6 Pac. 7; Whitney state or country in which the tes- ^ ^^^^^ ^^^ ^^_ ^^^^ ^^ p^^_ tator is domiciled at the time of g„g ^^^ ^.^^^ ^^^ amendment it his death, and valid as a will .^ j^^,^ ^^^^ charitable bequests under the laws of said state or jn foreign wills are governed by country, is valid in California as the same rules which control such to personal property, but the liml- bequests in domestic wills. — In re tatlona as to charitable bequests Lathrop's Estate, 165 Cal. 243, 131 imposed by § 1313 of the Civ. Code Pac. 752. are imposed on such wills as in 3S See, ante, § 255, as to be- the case of a domestic will. quests of chattels real. 350 COMMENTABIBS ON THE LAW OF WILLS. cile of the testator.'® This rule is in conflict with that in the United States, in the latter mentioned jurisdiction chattels real being classified as personalty and so be- queathed, such bequests being governed by the law of the domicile of the testator.*" §279. English Rule as to Bequests of Personalty: Statutory Regulations. The early rule in England was that bequests of per- sonal property were controlled by the law of the tes- tator's last domicile.*^ But by a statute enacted A. D. 1861,*^ a British subject can make a will of personal property out of the United Kingdom and which will be valid therein if executed in accordance with the forms prescribed either by the law of the place where it is made, or the law of the place of the testator's domicile at the time of the making of the will, or the law in force in that part of the Kingdom of Great Britain wherein is the testator's domicile of origin. Or if the British sub- ject executes his will within the United Kingdom, it is deemed valid if made according to the forms required by the law in force at that time in that part of the United Kingdom where the will is made. The statute further provided that no will should be revoked or become in- valid, nor the construction thereof be altered, because of any change in the domicile of the testator after execut- ing his will ; but the act did not invalidate any will which 39 Freke v. Liord Carbery, L. R. Ecc. 373; Bremer v. Freeman, 10 16 Eq. 461; In re GentUi, I. R. 9 Moore P. C. C. 306; De Fogas- Eq. 541; Duncan v. Lawson, 41 sieras v. Duport, L. R. 11 Ir. 123. Ch. Div. 394. 42 Statute of 24 and 25 Victoria, 40 See, ante, § 255. Despard v. ch. 114, designated as Lord Kings- Churchill, 53 N. Y. 192. down's Act 41 Stanley v. Bernes, 3 Hagg. WHICH LAW GOVERNS. 351 would have been held valid had the statute not been en- acted, yet the testator could revoke a former will of per- sonal property by any instrument which would be valid under the new statute.** This statute affects British subjects** only and can not, of course, be enforced where the property is not under the jurisdiction of Great Britain. § 280. Power of Appointment Exercised by Will. An apparent exception to the general rule is where a testamentary disposition is made of personal property under a power of appointment granted by the will of another. The one appointed takes under the donor of the power and under his will, the appointment by an- other being merely an instrumentality whereby the bene- ficiary was particularly designated. The effect is the same as if the instrument making the appointment had been incorporated in the original will.*^ The rule is, in such cases, that the will of the testator making the ap- pointment, in so far as it appoints a beneficiary of per- sonal property, is governed, not by the law of his domi- 43 The wording of the statute in England. — ^In re Goods of Kel- refers to the form of execution ler, 61 L. J. Pro. D. & A. only; yet it was held that an in- (N. S.) 39. strument which depended on the *b Roach v. Wadham, 6 East above statute for its validity, 289; Cook v. Duckenfield, 2 Atk. would be determined to be testa- 568; Middleton v. Crofts, 2 Atk. m.entary or not according to the 661; Mosley v. Mosley, 5 Ves. Jun. law of the place upon which its 249; In re Powell, 39 L. J. Ch. validity depended. — ^Pechell v. Hil- (N. S.) 188; Braybrooke v. Attor- derley, L. R. 1 P. & D. 673. ney General, 9 H. L. Cas. 150; 44 The statute includes natural- Silvers v. Canary, 109 Ind. 267, 9 ized British subjects (Goods of N. E. 904; Doollttle v. Lewis, 7 Gaily, L. R. 1 Pro. Div. 438), but Johns. Ch. (N. Y.) 45, 11 Am. Dec. not foreigners, although domiciled 389; Matter of Dows' Estate, 167 352 COMMENTABIES ON THE LAW OP WILLS. cile, but by the law of the domicile of the grantor of the power.*® And for this reason, the authority of the one N. Y. 227, 88 Am. St. Rep. 509, 52 L. R. A. 433, 60 N. B. 439; Smith V. Garey, 2 Dev. & B. Eq. (22 N. C.) 42. 46 In re Daly's Settlement, 25 Beav. 456; Goods of Hallyburton, L. R. 1 P. & D. 90; Topham v. Portland, 32 L. J. Ch. 257, 8 L. T. ISO; Goods of Huber, (1896) P. 209; Barretto v. Young, (1900) 2 Ch. 339; Sewall v. Wilmer, 132 Mass. 131; Stone v. Forbes, 189 Mass. 163, 75 N. E. 141; Betts v. Betts, 4 Abb. N. Cas. (N. Y.) 317, 318; Bingham's Appeal, 64 Pa. St. 345; Cotting V. De Sartiges, 17 R. I. 668, 669, 16 L. R. A. 367, 24 Atl. 530. Compare: Olivet v. Whltworth, 82 Md. 258, 33 Atl. 723, decided under statutes of that state which have since been repealed and re- enacted, but with different provi- sions. As to the interpretation of the will of the donee of the power, it is controlled by the law of his domicile. — In re Hardman, (1894) 3 Ch. 613. Where the formalities for the execution of the power of appoint- ment are prescribed in the will of the donor of the power, the power is sufficiently executed if such formalities are complied with, al- though not in accord with the law of the domicile of the one exer- cising the power. — Goods of Alex- ander, 6 Jur. N. S. 354, 29 L. J. P. 93; Tatnall v. Hankey, 2 Moore P. C. C. 342. The Statute of Wills of 1 Vic- toria, ch. 26, § 10, reads as fol- lows: "No power of appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner here- inbefore required" [manner in which wills are executed] "and every will executed in manner hereinbefore required shall, so far as respects the execution and at- testation thereof, be a valid exe- cution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or formality." Subse- quently was enacted the statute of 24 and 25 Victoria, ch. 114 (re- ferred to as Lord Kingsdown's Act) , whereby wills of British sub- jects disposing of personal prop- erty could be executed according to the laws of the testator's domi- cile at the date of execution, the laws of the place where the will was made, or the laws of the tes- tator's domicile of origin. This latter statute does not refer to powers of appointment. In Kir- wan's Trusts, 25 Ch. Div. 373, it was held that the statute last mentioned "does not at all touch or interfere with the negative provision of the Wills Act, namely, WHICH LAW GOVERNS. 353 exercising the power of appointment is not limited by the law of his domicile.*^ As to real property, since it can only be disposed of according to the law of the place where it is situated, a will executing a power of appointment to realty must comply with the requirements of the lex situs of the land.** A donation by will of a power of appointment to realty comes under the same rule. § 281. Recording Certified Record of the Probate of a Foreign Will. The probate of a will in the state wherein the testator was domiciled at the time of his death, has no effect thatno testamentary appointment can be made unless it is attested by two witnesses." A holographic codicil executed in EYance by a testator domiciled there, and valid under the French laws, although admitted to probate in England, was held invalid as an execution of a power of appointment, be- cause of the lack of attesting wit- nesses. (See § 10 of the Wills Act above quoted.) Prior to the stat- ute of 24 and 25 Victoria, ch. 114, in the case of D'Huart v. Hark- ness, 34 Beav. 324, 34 L. J. Ch. 31, 11 Jur. (N. S.) 633, it was held that a power of appointment to personal property could be made by any will that was entitled to be admitted to probate in Eng- land, and the appointment was held valid under a will of a testa- tor domiciled abroad and executed according to the formalities there prescribed, although not conform- I Com. on Wills— 2S Ing to the English law, and al- though the instrument would have been an invalid appointment if it had been executed in England. Hummel v. Hummel, (1898) 1 Ch. 642, followed In re Kirwan's Trusts, supra, and distinguished D'Huart v. Harkness, supra. Then two years later, In re Price, (1900) 1 Ch. 442, followed D'Huart v. Harkness and distinguished In re Kirwan's Trusts and Hummel v. Hummel. 47Pouey v. Hordern, (1900) 1 Ch. 492; In re Megret, (1901) 1 Ch. 547. 48Pouey V. Hordern, (1900) 1 Ch. 492; In re Megret, (1901) 1 Ch. 547; Sewall v. Wilmer, 132 Mass. 131; Bingham's Appeal, 64 Pa. St. 345; Cotting v. De Sartiges, 17 R. I. 668, 16 L. R. A. 367, 24 Atl. 530; Blount v. Walker, 28 S. C. 545, 6 S. B. 558. 354 COMMENTARIES ON THE LAW OF WILLS. upon land situated in another state, and for this reason statutes have been enacted in various jurisdictions pro- viding for the probate of foreign wills, or the recording of duly authenticated copies of the probate proceedings. The general rule is that where a will has been duly ad- mitted and probated in one state, duly certified copies of such will and of the probate proceedings may be re- corded in another state the same as a domestic will, and thereafter have the same force and effect. But it may, however, be attacked on the ground that the court of the foreign jurisdiction did not have jurisdiction of the per- sons and subject matter affected by the decree.*^ 49 Scott V. Herrell, 27 App. D. C. 395; Murdooli v. Murdoch, 81 Conn. 681, 129 Am. St. Rep. 231, 72 Atl. 290; Torrey v. Bruner, 60 Fla. 365, 53 So. 337; Sullivan v. Kenney, 148 Iowa 361, 126 N. W. 349; Green v. Alden, 92 Me. 177, 42 Atl. 358; Heard v. Drennen, 93 Miss. 236, 46 So. 243; Penderson V. Missouri Tie & T. Co., 104 Mo. App. 290, 78 S. W. 819; Martin v. Martin, 70 Neb. 207, 97 N. W. 289; In re Hagar's Will, 48 Misc. Rep. 43, 96 N. Y. Supp. 96; Bradley v. Krudop, 128 App. Div. 200, 112 N. Y. Supp. 609; Montague v. Schieffelin, 46 Ore. 413, 80 Pac. 654; Haney v. Gartin, 51 Tex. Civ. 577, 113 S. W. 166; In re Rum- ford's Will, 66 W. Va. 39, 66 S. E. 10; In re Box's Will, 127 Wis. 264, 106 N. W. 1063; In re Gertsen's Will, 127 Wis. 602, 115 Am. St. Rep. 1060, 106 N. W. 1096. Such statutes do not deprive one from proving the original will as if such statutes had not been en- acted. — Scott v. Carter (N. J. Bq.), 76 Atl. 1056. A will, duly proved in another jurisdiction, or authentic copy of same, with certificate that such will was duly executed, when re- corded, although not executed ac- cording to the laws of Illinois, is effectual in that state to pass title to property therein. — ^Amrine v. Hamer, 240 111. 572, 88 N. B. 1036; Dibble v. Winter, 247 111. 243, 93 N. B. 145. A foreign will, to be admissible in evidence in Georgia, must be accompanied by a duly authenti- cated copy of the probate proceed- ings. — ^Youmans v. Ferguson, 122 Ga. 331, 50 S. B. 141; Civ. Code Georgia, 1895, §§ 5167, 5237. Compare: Kelly v. Moore, 22 App. D. C. 9. The laws of Louisiana regard- ing registration of foreign wills were held not to apply to the will WHICH LAW GOVERNS. 355 § 282. Ancillary Administration. Where some of the property of an estate is situated in a foreign state, as the jurisdiction of the court where Texas. — Gordon t. Lewis (Tex. Civ. App.), 133 S. W. 927. of a resident of that state, al- though executed and probated ■without the state. — Succession of Drysdale, 121 La. 816, 46 So. 873. In Illinois, recording is suffi- cient to pass title under a foreign will, probate of the same not being required. — ^Amrine v. Hamer, 240 lU. 572, 88 N. B. 1036; Stull V. Veatch, 236 111. 207, 86 N. E. 227. In North Carolina, a copy of a foreign will, when duly filed, has the same force and effect as the original will. — ^Roper Lumber Co. V. Hudson, 153 N. 0. 96, 68 S. B. 1065. A certified copy of a will sought to be recorded is presumed to be a true copy of the original and if on its face it shows that it Is not sufficient to pass property In the state wherein It is sought to be recorded and admitted, it will be rejected unless this presumption is overcome by evidence. — Hosier V. Haines, 7 Ohio C. C. (N. S.) 261; In re Hagar's Will, 48 Misc. Rep. 43, 96 N. Y. Supp. 96. After the earthquake and fire in San Francisco, during which the original probate records were all destroyed, such records were re- stored, under the California law, by copies and the like, and given the effect of the originals. A duly authenticated copy of such a. re- stored record was accepted in Section 905 of the Revised Stat- utes of the United States reads, in part, as 'follows: "The record and judicial proceedings of the courts of any state or territory, or of any such territory, or of any such country, shall be proved and admitted In any other court within the United States, by the attesta- tion of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of , the judge, chief justice, or presid- ing magistrate, that the said at- , testation is in due form and the said record and judicial proceed- ings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." Although the United States Re- vised Statutes, § 905, prescribe the manner of certification or authen- tication of judicial proceedings in a foreign state, yet a state may accept, if it is satisfied In doing so, proof which is less than that stated in the statute. — Wil-, lock V. Wilson, 178 Mass. 68, 59 N. B. 757; Wells Fargo & Co. v. Davis, 105 N. Y. 670, 12 N. B. 42; Hewit V. Bank of Indian Territory, 64 Neb. 463, 90 N. W. 250, 92 N. W. 741; Title Guarantee &, 356 COMMENTAEIES ON THE LAW OF WILLS. the original will is admitted to probate is confined within its borders, ancillary letters of administration are gener- Trust Co. T. Trenton Potteries Co., 56 N. J. Eq. 441, 38 Atl. 422. A state has no authority to re- quire additional formalities than those prescribed by the United States statute. — ^Ritchie v. Carpen- ter, 2 Wash. 512, 26 Am, St. Rep. 877. 28 Pao. 380. In Sullivan v. Kenney, 148 Iowa 361, 126 N. W. 349, the court says: "It will be found that a number of courts sustain the views . . . that a foreign judg- ment can not be attacked for want of jurisdiction where the foreign court expressly finds that juris- diction does exist. But that is not the rule in this state, nor is it the one sustained by the weight of authority." To the same effect, see: Overby V. Gordon, 177 U. S. 214, 44 L. Ed. 741, 20 Sup. Ct. 603; Stark v.' Parker, 56 N. H. 481, involving the question of the domicile of the testator; Penny wit v. Foote, 27 Ohio St. 600, 22 Am. Rep. 340, where it was held that lack of jurisdiction in the foreign tribunal could be shown to exist and the record be held a nullity, notwith- standing its recitals; Bate v. In- cisa, 59 Miss. 513, where it was held that Mississippi, being the domicile of the testator, his capac- ity to make the will must be ad- judged by the laws of that state. That § 905 of the Revised Stat- utes does not preclude the objec- tion in one state of the record of a judgment from another state, that there was a lack of jurisdic- tion of person or subject-matter, see, generally: Wisconsin v. Peli- can Ins. Co., 127 U. S. 265, 32 L. Ed. 239, 8 Sup. Ct. 1370; Davis V. Bessemer City Cotton Mills, 178 Fed. 784, 102 C. C. A. 232; Foster Mllburn Co. v. Chinn, 202 Fed. 175, 122 C. C. A. 577; Flexner v. Far- son, 268 111. 435, Ann. Cas. 1916D 810, 109 N. E. 327; Marshall v. R. M. Owen & Co., 171 Mich. 232, 137 N. W. 204; De Vail v. De Vail, 57 Ore. 128, 109 Pac. 755, 110 Pac. 705; Wood v. Augustins, 70 Vt 637, 41 Atl. 583. Nor that the judgment was ob- tained by fraud: Rose v. North- west Fire & M. Ins. Co., 67 Fed. 439. Authenticated copies of a for- eign will and of the proceedings of probate of the same, duly recorded in Illinois, can not be collaterally attacked unless the record, on its face, shows the will to have been improperly admitted. — StuU V. Veatch, 236 111. 207, 86 N. E. 227. To the same effect: Stevens v. Oliver, 200 Mo. 492, 98 S. W. 492. In Torrey v. Bruner, 60 Fla. 365, 53 So. 337, the court says: "When a court does not have jurisdiction of the subject-matter and of the parties affected by its judgment or decree, the adjudication is void, and may be assailed collaterally. WHICH LAW GOVERNS. 357 ally issued in the other state for the purpose of adminis- tering the property therein. Such proceedings are usually instituted by filing or recording certified copies of the original will and of the proof thereof and proceedings thereunder. Such ancillary administration merely set- tles questions as to the authenticity of the will, but does not affect the distribution thereunder,'^" vesting only the bare legal title in the administrator.^^ In some jurisdic- But, if the court has jurisdiction of the subject-matter and of the parties, the adjudication is bind- ing, even though erroneous, unless it is reversed or modified by direct appellate proceedings. When the court has jurisdiction of the sub- ject-matter and of some of the parties, the adjudication may be binding on the parties over whom the court has acquired jurisdic- tion . . . , and not binding as to other persons over whom the court has not acquired jurisdic- tion. In proceedings in rem, where proper notice is given, the adju- dication is in general binding on all the world, where the court had jurisdiction of the subject-matter of the rem. The. probate of a will is in the nature of a proceeding in rem. . . . The subject-matter of the proceedings or the rem is the will." It has been held in Vermont that a will duly probated in the state where the property lies, can not be attacked in the place of domicile, on the ground of inca- pacity and undue influence. — Ives V. Salisbury's Heirs, 56 Vt. 565. In Barnes v. Brownlee, 97 Kan. 517, 155 Pac. 962, the court says: "The claims that jurisdiction was acquired by fraud and that the judgment probating the will was Induced by false testimony were matters inherent in the action that were investigated and determined by that court, and it is well set- tled that such a determination is not open to collateral attack." Compare: Ball v. Reese, 58 Kan. 614, 62 Am. St. Rep. 638, 50 Pac. 875. 60 Thornton v. Curling, 8 Sim. 310. 61 Tompkins v. Tompkins, 1 Story (U. S. C. C.) 547, 554, Fed. Cas. No. 14091; Ex parte Puller, 2 Story (U. S. C. C.) 327, 328, Fed. Cas. No. 5147; Laughton v. Atkins, 1 Pick. (Mass.) 535, 548; Dublin v. Chadboum, 16 Mass. 433. When a will of one domiciled in a foreign country has been admitted to probate there, it is customary to grant ancillary administration in the jurisdiction where the property lies, without permitting inquiry into the grounds of the foreign proceeding. — Miller v. James, L. E. 358 COMMENXAEIES ON THE LAW OF WILLS. tions, statutes have been enacted making foreign execu- tors or administrators subject to suit by persons wlio bave claims against the estate,^^ providing, of course, that tbe local court acquires jurisdiction of the person of the defendant or the property of the estate. But the general rule, in the absence of statutory authority, is that one who has a claim to certain personal property of a de- cedent, either by will or under the laws of succession, can enforce the same only in and according to the laws of the forum where the will has been admitted to probate or the estate is being administered; such a claim can not be enforced in another jurisdiction unless the will is proved there or ancillary administration is had. The va- lidity, however, of such claim to personal property, is governed by the law of the domicile of the decedent at the time of his death.^* 3 p. & D. 4; In re Goods of Earl, L. R. 1 P. & D. 450; Hare T. Na- smyth, 2 Addams 25; In. re Read, 1 Hagg. Ecc. 474. 52 Johnson v. Jackson, 56 Ga. 326, 21 Am. Rep. 285; Cady v. Bard, 21 Kan. 667; Williams' Admrs. v. Welton's Admr., 28 Ohio St. 451, 464. 53 Flood T. Patterson, 29 Beav. 295; Lowe v. Farlie, 2 Madd. 101; Vaughan v. Northup, 15 Pet. (U. S.) 1, 10 L. Ed. 639; Kerr v. Moon, 9 Wheat. (TJ. S.) 565, 6 L. Ed. 161; Fleeger t. Poole, 1 Mc- Lean (TJ. S.) 185, 189, Fed. Cas. No. 4860; Hatchett v. Berney, 65 Ala. 39; King v. Martin, 67 Ala. ■177; Russell v. Hooker, 67 Conn. 24, 35 L. R. A. 495, 34 AU. 711; Sloan V. Sloan, 21 Fla. 589; Sny- der V. Hochstetler, 88 Iowa 621, 55 N. W. 573; Embry v. Millar, 1 A. K. Marsh. (8 Ky.) 300, 302, 10 Am. Dec. 732; Borden v. Borden, 5 Mass. 67, 4 Am. Dec. 32; Richards V. Dutch, 8 Mass. 506; Van Dyke V. Van Dyke, 36 N. J. Eq. 521, 523; Cocks V. Varney, 42 N. J. Eq. 514, 8 Atl. 722; Durie v. Blauvelt, 49 N. J. L. 114, 6 Atl. 312; Flandrow V. Hammond, 13 App. Div. (N. Y.) 325, 43 N. Y. Supp. 143; Lyon v. Park, 111 N. Y. 350, 18 N. E. 863; Hopper V. Hopper, 125 N. Y. 400, 12 L. R. A. 237, 26 N. E. 457; Mus- selman's Appeal, 101 Pa. St. 165; Carr v. Lowe's Exrs., 7 Heisk. (Tenn.) 84. WHICH LAW GOVERNS. 359 § 283. Charitable Devises and Bequests : Perpetuities : By Which Law Governed. A testator by his will may donate a portion of his estate to a charitable institution or direct that the same be con- served and the accumulations be used for designated pur- poses. The universal rule is that the validity of a devise of real property for any purpose, as against the heir at law, depends upon the law of the situs of the property.^* As to bequests of personal property there is a conflict of decisions. Should a testator, domiciled in one jurisdic- tion, leave a legacy to a charitable institution organized and existing in another state, but which is not authorized by law to receive the gift, or directs that his property be accumulated and administered in another state in a manner which violates the rule as to perpetuities in that jurisdiction, the question arises as to what law controls, that of the state of the testator's domicile, or that of the jurisdiction where the property is to be distributed or administered. 54 A charitable devise of real 796; Butler v. Green, 16 N. Y. property is governed by the law Supp. 888; In re Stewart's Estate, of the situs.— Curtis v. Hutton, 14 26 Wash. 32, 66 Pao. 148, 67 Pac. Ves. Jun. 537; Duncan v. Lawson, 723. 41 Ch. Div. 394; Vidal v. PhilSr As to the rule against perpetut- delphia, 2 How. (tT. S.) 127, 11 ties, a devise of real property is L. Ed. 205; Wheeler v. Smith, 9 governed by the law of the situs. — How. (U. S.) 55, 13 L. Ed. 44; Ford v. Ford, 80 Mich. 42, 44 N. W. McDonogh v. Murdoch, 15 How. 1057; White v. Howard, 46 N. Y. (U. S.) 367, 14 L. Ed. 732; Jones 144; Hobson v. Hale, 95 N. Y. 588; V. Habersham, 107 U. S. 174, 27 Penfield v. Tower, 1 N. D. 216, 46 L. Ed. 401, 2 Sup. Ct. 336; Hand- N. W. 413; Ford v. Ford, 70 Wis. ley V. Palmer, 103 Fed. 39, 43 19, 5 Am. St. Rep. 117, 33 N. W. C. C. A. 100; Brigham v. Peter 188. Bent Brigham Hospital, 126 Fed. 360 COMMENTAEIES ON THE LAW OP WILLS, The rule most favored is that in all such cases the law which governs is that of the domicile of the testator.^'^ If the courts of the domicile determine the bequest to be valid under its law, it is no part of their duty to ad- minister the fund in another jurisdiction nor to deter- mine whether or not the charitable purpose might legally be carried out. They merely direct that the moneys be transferred to the proper parties, leaving the courts of the other state to provide for the proper application of the legacy.®* § 284. The Same Subject : Illustration of the General Rule. A will by its residuary clause gave all the remainder of the property of the testator to the city of Winchester 55 Duggan V. Slocum, 83 Fed. 244; Handley v. Palmer, 103 Fed. 39, 43 C. C. A. 100; Philadelphia Baptist Assn. v. Hart, 4 Wheat. (U. S.) 1, 4 L. Ed. 499; Healy v. Reed, 153 Mass. 197, 10 L. R. A. 766, 26 N. E. 404; Jenkins v. Guar- antee Trust etc. Co., 53 N. J. Eg. 194, 32 Atl. 208; Butler v. Green, 16 N. Y. Supp. 888; Dammert v. Osbom, 140 N. Y. 30, 35 N. E. 407; Temple v. Board of Comrs. of Pasquotank Co., Ill N. C. 36, 15 S. E. 886. As to the rule against perpetui- ties, bequests or personalty are governed by the law of the domi- cile of the testator, irrespective of the situs of the property. — Hey- wood V. Hey wood, 29 Beav. 9; Whitney v. Dodge, 105 Cfil. 192, 38 Pac. 636; White v. Howard, 46 N. Y. 144; Cross v. United States Trust Co., 131 N. Y. 330, 27 Am. St. Rep. 597, 15 L. R. A. 606, 30 N. E. 125; Ford v. Ford, 70 Wis. 19, 5 Am. St. Rep. 117, 33 N. W. 188. 66 Provost of Edinburgh v. Au- brey, Ambler 236; Attorney-Gen- eral V. Lapine, 2 Swanst. 181; Burbank v. Whitney, 24 Pick. (Mass.) 146, 154, 35 Am. Dec. 312. See following, notes 57, 58, 60. The statutory limitations in one state upon the amount which may be bequeathed from a husband, wife or child to a charitable insti- tution, do, not affect the bequest of a testator domiciled out of the state made to such an institution within the state. — Crum v. Bliss, 47 Conn. 592. If a trust for a charitable pur^ pose is valid, by the law of the testator's domicile, if made to a municipal corporation which is in- competent to execute the trust. WHICH LAW GOVERNS. 361 in Virginia, "to be acciunulated by such city for the pe- riod of twenty years, the income arising from said resi- due estate to be expended and laid out in said city by the erection of school-houses for the education of the poor." The testator was a citizen of Pennsylvania and died there. In determining the case, the court says: "It is clear that, as respects all the testator 's personal estate and his real estate situated in the state of Pennsylvania, the validity of the residuary clause is to be determined by the law of Pennsylvania; the testator's domicile hav- ing been there at the date of his will and at the time of his death." The property involved was personal prop- erty. The claim was made that the validity of the residu- ary clause should be determined by the laws of Virginia. Under the laws of Pennsylvania a municipal corporation could accept such a bequest. In this respect, the court says: "Judged by the law of Pennsylvania, then, the objection to the competency of the city of Winchester to take the bequest or execute the trust under the residuary clause of this will is without force. If, however, for any reason, the city of Winchester is incompetent to execute the trust, the law of the testator's domicile would not suffer his charitable intentions to be thereby defeated, but would supply a trustee. Both by the common law and the statute law of Pennsylvania a charitable gift is not to fail because given to a person or corporation in capable of taking it and administering the trust, but a competent trustee for the purpose wiU be appointed by the court. "^'^ the state only could object to the 57 Handley v. Palmer, 91 Fed. want of capacity. — Vidal v. Phila- 948. delphia, 2 How. (U. S.) 127, 11 See, also, Frazier v. St. Luke's L. Ed. 205. Church, 147 Pa. St. 256, 23 Atl. 362 COMMENTAEIES ON THE LAW OF WILLS. §285. The Same Subject: To the Contrary. Some decisions hold that where a will, valid for all pur- poses under the law of the domicile of the testator, con- tains a bequest of moneys to be transmitted to or admin- istered in another state, the validity of such bequest is to be determined by the law of the state where the moneys are to be received or administered.^* Thus a 442, wherein the court says: "A gift to the lame, the halt, and the blind, is not to fail in the nine- teenth century, because the legal title is given to a person or corpo- ration incapable of taking it, or even forbidden by law to take it. Chancery here steps in to enforce the charity, and commits it to some one who may lawfully ad- minister it." In Iglehart v. Iglehart, 26 App. D. C. 209, the court says: "We do not think it necessary to here pass upon the question whether the cemetery company has power, under its charter, to act as trus- tee, . . . for the reason that equity will not allow the trust to fail for want of a trustee, but will, if necessary, appoint a trustee to carry it into effect." In Dammert v. Osborn, 140 N. Y. 30, 35 N. B. 407, in dealing with a charitable bequest valid under the law of the testator's domicile, the court says : "Our courts may in certain cases decline to admin- ister the gift, and remit the prop- erty to the principal seat of ad- ministration, but they can not di- vest the title of one or transfer it to another contrary to the law of the domicile. That law is part of the disposition and the foundation of all title under it, and it can not be disregarded to the preju- dice of one and the benefit of an- other any more than the other parts of the instrument. There is no law which forbids gifts to charities here by testators in other countries, or that require us to reject the gift unless it is made, in all respects, in conform- ity with our local law." 58 Sickles V. City of New Or- leans, 80 Fed. 868, 26 C. C. A. 204; Chamberlain v. Chamberlain, 43 N. Y. 424. In Hobson v. Hale, 95 N. Y. 588, it was held that a devise by a resident of Massachusetts of real property in New York, valid under the Massachusetts law but in vio- lation of the rule against suspend- ing the power of alienation in New York, should be construed accord- ing to the law of the situs. In Chamberlain v. Chamberlain, 43 N. Y. 424, the court, at p. 433, says: "But if, within the lex domi- cilii, a will has all the forms and requisites to pass the title to per- WHICH LAW GOVERNS. 363 testator, domiciled and djdng in New York, executed Ms will less than a month before his death, and in his will among other things made a bequest of personal prop- erty to certain charitable institutions in Pennsylvania, sonalty, the validity of the par- ticular bequests will depend upon the law of the domicile of the leg- atee and of the government to which the fund is by the terms of the will to be transmitted for administration." The court then states that a bequest, if valid by the law of the domicile of the legatee, will be held valid irre- spective of the law of the testa- tor's domicile unless the law pro- hibits bequests for the purpose named or limits the capacity of the testator in disposing of his property, in which last instances the bequest will be held void everywhere. In the same case, the court also says: "The courts of this state will not administer a foreign charity, but they will di- rect the money devoted to it to be paid over to the proper parties, leaving it to the courts of the state within which the charity is to be established, to provide for its due administration and for the proper application of the legacy." To the same effect, see: Hope V. Brewer, 136 N. Y. 126, 18 L. R. A. 458, 32 N. E. 558; Stieglitz v. Attorney General, 91 Misc. Rep. 139, 154 N. Y. Supp. 137. See, also, Hollis v. Drew Theo- logical Seminary, 95 N. Y. 166. Chamberlain v. Chamberlain, supra, was limited and distin- guished in Cross v. United States Trust Co., 131 N. Y. 330, 27 Am. St. Rep. 597, 15 L. R. A. 606, 30 N. E. 125. In Succession of Petit, 49 La. Ann. 625, 62 Am. St. Rep. 650, 21 So. 717, the law of the testator's domicile was not recognized as controlling the disposition of per- sonal property in Louisiana where a different law prevailed, the court saying: "In this class of cases, and others in which there is no right affecting our own citizens, or repugnant to our law and public policy, our courts will give effect to the foreign law, in subjecting to its operation movable property here. . . . We are not at liberty in this case to enforce the foreign law, because, in our view, the comity of states does not exact the recognition by the courts of one country of the title of an heir based on a foreign law opposed to our law, and detrimental to our citizens, if enforced." A bequest by a citizen of Con- necticut to an unincorporated as- sociation in New York, although valid under the Connecticut law, w^as held ineffective because void under the law of New York. — Mapes V. American Home Mission- ary Soc, 33 Hun (N. Y.) 360. 364 COMMENTARIES ON THE LAW OP WILLS. none of his property, however, being in that state. Under the law of Pennsylvania, a charitable bequest contained in a will was invalid unless the wiU had been executed at least a month before the death of the testator. It was held that since the bequest was void under the laws of Pennsylvania, it was void in New York.^* §286. The Same Subject: Purpose of Statutes Explained. In a later case in New York, a testator who had been domiciled in Peru, but whose property was largely in the state of New York, provided in his will for the establish- ment in New York City of a home for poor children. Ob- jection was made that the will violated the rule as to perpetuities and also the statute of New York prescrib- 89 Carter v. Board of Education, 68 Hun (N. Y.) 435, 436, 23 N. Y. Supp. 95. Compare: Dammert v. Osbom, 140 N. Y. 30, 35 N. B. 407. Where a church was prohibited from receiving a devise of lands by the laws of the state wherein the property was situated, such a devise was held void and against public policy, and could not be ratified or made effectual by any act of persons holding adverse in- terests. — Miller v. Ahrens, 163 Fed. 870. Such devise being void, no acts on the part of the heir would estop him from thereafter contest- ing it. — Miller v. Ahrens, supra; Lyons v. Barnum, 60 Misc. Rep. 625, 112 N. Y. Supp. 587. The statutes of California pro- vide that a will executed outside of that state, if valid under the law of the testator's domicile, will be valid in California as to per- sonal property, except that char- itable bequests and devises are limited to one-third of the amount of the testator's estate. This rule is under an amendment of the Cal- ifornia law in 1905, prior to that time the rule being "that in the absence of a positive law to the contrary, disposition of the de- cedent's personal estate will be governed by the law of his actual domicile." But since the amend- ment to the California law it has been held that charitable bequests in foreign wills shall be governed by the same rules which control such bequests In domestic wills in California. — In re Lathrop's Es- tate, 165 Cal. 243, 131 Pac. 752. WHICH LAW GOVEENS. 365 ing the length of time prior to death that a devise to charity could be validly made. The court held that such laws did not apply to testamentary gifts made by those domiciled elsewhere, if such gifts were valid under the law of the domicile of the testator. The court says : "The purpose of these statutes is evident. They were intended to prevent improvident and hasty bequests to the preju- dice or neglect of those natural obligations which the law also imposes upon the citizen. But these obligations ap- plied to members of the political community from which[' the law emanated and not to persons in other countries' where no such restrictions existed, and who desired tof give according to their own laws. Bequests by such per-[ sons to those corporations, without regarding the stat-' utes referred to, would be good if valid at the domicile of the testator. It is no part of our public policy to con- demn such gifts to charitable or benevolent corporations here. Our law permits the citizens or subjects of other countries to dispense charity here in such measure as they wish and according to such methods as their own laws prescribe. The policy that dictated our statutes against perpetuities and accumulations did not antici- pate any danger from abroad, and our recent decisions are to the effect that they are local in their scope and effect. "«« 60 Dammert v. Osbom, 140 N. Y. country or a bequest made there 30, 35 N. B. 407, reviews for- to take effect here was not within mer cases, the court saying: "The the intention of the legislature trend of these cases is unquestion- when these statutes were framed." ably toward the conclusion that To the same effect: Mount v. our statutes apply to domestic Tuttle, 99 App. Div. 433, 91 N. Y. wills that by their provisions are Supp. 195. to be executed here. An accumu- In Cross v. United States Trust lation to take effect in another Co., 131 N. Y. 330, 27 Am. St. Rep. 866 COMMENTARIES ON THE LAW OF WILLS. 1 287. Taxes Upon the Right to Acquire Property by Will or Under the Laws of Succession. In most jurisdictions statutes have been enacted im- posing an inheritance or succession tax or excise upon the right to acquire property by devise, bequest, under the laws of succession, or under a gift which does not take effect until the death of the donor. Such a tax is, strictly speaking, not a property tax, but a charge im- posed upon the right or privilege of acquiring, in the manner mentioned, the property of a decedent.®^ Such a 597, 15 L. R. A. 606, 30 N. E. 125, ■where the question involved was the validity of a win of personal property by a resident of Rhode Island to a New York corporation in trust for the purpose of col- lecting and receiving the income thereof, which it was claimed vio- lated the rule as to perpetuities In New York, it was held that the will had to he construed according to the laws of Rhode Island. The case of Chamberlain v. Chamber- lain, 43 N. Y. 424, was distin- guished. Then following, in the case of Hope v. Brewer, 136 N. Y. 126, 18 L. R. A. 458, 32 N. E. 558, the case of Cross v. United States Trust Co., supra, was limited, it being held that a charitable be- quest by a resident of New York to trustees in a foreign jurisdic- tion, if valid under the foreign law, will be held valid in New York, although it might be as- sumed to be void under the law of that state. Both cases were limited and .explained in Dammert v. Osbom, supra. It was held that a restriction upon bequests to corporations in New York did not apply to lega- cies to corporations created under the laws of another state where no such limitation existed, even though the will was executed in New York. — Riley v. Diggs, 2 Dem. (N. Y.) 184. In Girard v. Philadelphia, 7 Wall. (U. S.) 1, 19 L. Ed. 53, the court says: "Nor can a valid vested estate in trust lapse or be- come forfeited by any misconduct in the trustee, or inability in the corporation to execute it, if such existed. Charity never fails; and it is the right, as well as the duty, of the sovereign, by its courts and public officers, as also by its leg- islature (if needed), to have the charities properly administered." To the same effect, see: City of Philadelphia v. Fox, 64 Pa. St 169. eiBlythe v. Granville, 13 Sim. 195; Lyall v. Lyall, L. R. IB Eq. 11; Wallace v. Attorney General, L. R. 1 Ch. App. 1; In re Badart's Trust, WHICH LAW GOVERNS. 367 tax may legally be levied upon both real and personal property, wherever the same may be found or jurisdic- tion of its disposition acquired, even though the law of the situs of the property be governed by the law of the domicile; and even though the law of the domicile, viewing the chattels of the decedent, wheresoever situ- ated, as under its control, imposes a charge upon the succession to them, although a similar tax is imposed in the jurisdiction of their situs. The fact that two states impose taxes upon either similar or upon inconsis- tent principles because of the transfer of the same chat- tel, although it may result in hardship, is not in con- L. R. 10 Ea. 296; United States v. Perkins, 163 U. S. 625, 41 L. Ed. 287, 16 Sup. Ct. 1073; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. Ed. 1037, 18 Sup. Ct. 594; Knowlton v. Moore, 178 U. S. 41, 44 L. Ed. 969, 20 Sup. Ct. 747; Plummer v. Coler, 178 U. S. 115, 44 L. Ed. 998, 20 Sup. Ct. 829; Blackstone v. Miller, 188 U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277; In re Kite's Estate, 159 Cal. 392, Ann. Cas. 1912C 1014, 32 L. R. A. (N. S.) 1167, 113 Pac. 1072; People •V. Griffith, 245 111. 532, 92 N. E. 313; Minot v. Winthrop, 162 Mass. 113, 26 L. R. A. 259, 38 N. E. 512; In re Pox's Estate, 154 Mich. 5, 117 N. W. 558; Dixon v. Russell, 79 N. J. L. 490, 76 Atl. 982; In re Cummings' Estate, 142 App. Div. 377, 127 N. Y. Supp. 109; In re Kenney's Estate, 194 N. Y. 281, 87 N. E. 428; In re McKennan's Estate, 27 S. D. 136, Ann. Cas. 1913D 745, 33 L. R. A. (N. S.) 620, 130 N. W. 33; In re Stixrud's Es- tate, 58 Wash. 339, Ann. Cas. 1912A 850, 33 L. R. A. (N. S.) 632, 109 Pac. 343; In re Bullen's Estate, 143 Wis. 512, 139 Am. St. Rep. 1114, 128 N. W. 109. Where a legacy is given to some institution whose property is ex- empt from taxation, as for in- stance a church, ordinarily such legacies are exempt from inher- itance or succession taxes. — Car- ter T. Eaton, 75 N. H. 560, 78 Atl. 643; Carter v. Story, 76 N. H. 34, 78 Atl. 1072; In re Lyon's Estate, 144 App. Div. 104, 128 N. Y. Supp. 1004; Lacy v. State Treasurer (Iowa), 121 N. W. 179; Estate of Macky, 46 Colo. 79, 23 L. R. A. (N. S.) 1207, 102 Pac. 1075. But see: In re Gopsill's Estate, 77 N. J. Eq. 215, 77 Atl. 793; In re Moses, 138 App. Div. 525, 123 N. Y. Supp. 443. 368 COMMENTAEIES ON THE LAW OF WILLS. travention to the rules of constitutional law.*^ And the law in force at the death of the testator or intestate, which fixes the liability for the tax.^' 62 Blackstono v. Miller, 188 U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277. See, also: Mager v. Grima, 8 How. (U. S.) 490, 12 L. Ed. 1168; Coe V. Errol, 116 U. S. 517, 29 L. Ed. 715, 6 Sup. Ct. 475; Pull- man's Palace Car Co. v. Pennsyl- vania, 141 tr. S. 18, 22, 35 L. Ed. 613, 11 Sup. Ct 876; Magoun v. Illinois Trust & Savings Bank, 170 V. S. 283, 42 L. Ed. 1037, 18 Sup. Ct. 594; New Orleans v. Stempel, 175 tr. S. 309, 44 L. Ed. 174, 20 Sup. Ct. 110; Bristol T. Washington County, 177 TJ. S. 133, 44 L. Ed. 701, 20 Sup. Ct. 585; Knowlton v. Moore, 178 TJ. S. 41, 44 L. Ed. 969, 20 Sup. Ct. 747; Eidman v. Martinez, 184 TJ. S. 578, 46 L. Ed. 697, 22 Sup. Ct. 515. The fact that a deposit in the hank was taxed in Montana and also by the federal government, was held no objection in New York to also Imposing a transfer tax by that state. — Matter of Daly's Estate, 100 App. Div. 373, 91 N. Y. Supp. 858; affirmed 182 N. Y. 524, 74 N. E. 1116. 63 Commonwealth v. StoU's Admr., 132 Ky. 234, 114 S. W. 279, 116 S. W. 687; Pierce v. Stevens, 205 Mass. 219, 91 N. E. 319; Car- ter V. Whitcomb, 74 N. H. 482, 17 L. R. A. (N. S.) 733, 69 Atl. 779. There is some conflict, arising from the construction of the vari- ous statutes, as to when the prop- erty, where contingencies exist, may be taxed. These matters are often covered by the statute, but where there is no direction on the subject, contingent estates are generally held not taxable until the contingency has arisen and the estate has vested. — Billings v. People, 189 111. 472, 59 L. R. A. 807, 59 N. E. 798; Howe v. Howe, 179 Mass. 546, 55 L. R. A. 626, 61 N. B. 225; Matter of Stewart, 131 N. Y. 274, 14 L. R. A. 836, 30 N. B. 184; Matter of Roose- velt's Estate, 143 N. Y. 120, 25 L. R. A. 695, 38 N. E. 281; .Estate of Coxe, 193 Pa. St. 100. 44 Atl. 256; State v. Pabst, 139 Wis. 561, 121 N. W. 351. But if the estate vests in the successor or beneficiary at the death of the decedent owner or testator, the tax accrues as of that date. — Ayers v. Chicago Title etc. Co., 187 111. 42, 58 N. E. 318; Mat- ter of Dow's Estate, 167 N. Y. 227, 88 Am. St. Rep. 509, 52 L. R. A. 433, 60 N. E. 439; Com- monwealth v. Smith, 20 Pa. St. 100; Mellon's Appeal, 114 Pa. St 564, 8 Atl. 183; Lines' EsUte, 155 Pa. St 378, 26 Atl. 728. Where a non-resident is the re- siduary legatee under the will of a resident decedent, but such ben- eficiary dies before the executors have made their accounting and before the property which would WHICH LAW GOVERNS. 369 §288. The Same Subject: Real Property: When Converted Into Personalty. As to real property, the rule is that the law of a state can impose an inheritance or succession tax only upon such property as is actually within its borders; and as to such property the assessment is made irrespective of the domicile of either the decedent or the beneficiary.** pass under the residuary legacy has been ascertained, no transfer tax can be Imposed; the mere right to the legacy not being deemed as being property within the state. — Matter of Phipps, 77 Hun 325, 28 N. Y. Supp. 330, af- firmed 143 N. Y. 641, 37 N. E. 823; Matter of Zefita, Countess de Ro- han-Chabot's Estate, 167 N. Y. 280, 60 N. E. 598. But where the accounting has been had and the amount of property passing under the resid- uary clause has been determined, the tax will be imposed. — Matter of Clinch's Estate, 180 N. Y. 300, 73 N. E. 35. "Property within the state" was held to include an undivided quarter interest in the personal estate of a decedent who had been donalciled in Maryland, which in- terest passed to a non-resident, and consisted of national bank stock, Missouri state bonds, and the like. The non-resident receiv- ing the benefits died before dis- tribution. His estate was admin- istered In California, and letters of administration, with the will annexed, were taken out in Mary- I Com. on Wills— 24 land. The interest in the estate of the first decedent was held sub- ject to the tax. The court said, In effect, that to tax property passing to residents and not to tax property passing to non-resi- dents would be a discrimination against the citizens of the state. — State V. Dalrymple, 70 Md. 294, 3 L. R. A. 372, 17 AU. 82. Where a non-resident decedent died intestate leaving personal property situated in the state of his domicile and which passed to a sister domiciled in Pennsyl- vania, the sister dying before re- ceiving the property, her interest in the estate of her non-resident decedent brother was held subject to the tax, the theory being that her right to the property vested at the brother's death, he dying intestate. — Milliken's Estate, 206 Pa. St. 149, 55 Atl. 853. 64 Connell v. Crosby, 210 111. 380, 71 N. E. 350; Weaver's Estate V. State, 110 Iowa 328, 81 N. W. 603; Lorillard v. People, 6 Dem. (N. Y.) 268, 19 N. Y. St. Rep. 263; Matter of Swift, 137 N. Y. 77, 18 L. R. A. 709, 32 N. E. 1096; In re Speers, 6 Ohio Dec. 398; 370 COMMENTARIES ON THE LAW OF WILLS. Eeal property,; however, may in some cases be consid- ered as personalty. Where a -wiU provides that the ex- ecutors shall dispose of the real estate and convert it into money, the proceeds to go to certain beneficiaries, for the purposes of an inheritance or succession tax the real estate is deemed to have been money at the death of the testator.®" Commonwealth v. Coleman's Admr., 52 Pa. St 468, Drayton's Appeal, 61 Pa. St. 172; Miller v. Commonwealth, 111 Pa. St. 321, 2 Atl. 492; In re Bittlnger's Es- tate, 129 Pa. St. 338, 18 Atl. 132; In re Hale's Estate, 161 Pa. St. 181, 28 Atl. 1071; In re Handley's Estate, 181 Pa. St. 339, 37 Atl. 587. 66 "The real estate having been directed by the will to be con- verted into money, it is to be re- garded for all the purposes of this case as if it were money at the time of the death of the testator." — ^Cropley v. Cooper, 19 Wall. (U. S.) 167, 22 L. Ed. 109. See, also. Fairly v. Kline, 3 N. J. L. 754, 4 Am. Dec. 414; Wurts Exrs. V. Page, 19 N. J. En. 365; Hocker v. Gentry^ 3 Mete. (Ky.) 463; Tazewell v. Smith, 1 Rand. (Va.) 313, 10 Am. Dec 533; Bright's Appeal, 100 Pa. St. 602; Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103. Where the will provides that the executors shall dispose of the real estate, collect all claims, and use the proceeds for the benefit of a certain charity, it is in effect a beauest of money. — Sickles v. City of New Orleans, 80 Fed. 868, 26 C. C. A. 204. See, also, Handley v. Palmer, 91 Fed. 948; Thornton v. Hawley, 10 Ves. Jun. 129; Stagg v. Jackson, 1 N. Y. 206; Dodge v. Pond, 23 N. Y. 69; Chamberlain v. Chamberlain, 43 N. Y. 424. "A testamentary gift of money, which is to be realized from the sale of land, is throughout a leg- acy of money, because It was the intention of the testator to give the money and not the land. ... In other words, the land Is considered as money so far as this is necessary to give effect to the provisions as a legacy of money, and to treat the interest of the legatee as altogether an in- terest in money." — ^Allen v. Watts, 98 Ala. 384, 11 So. 646. The rule has been somewhat qualified in Pennsylvania, it being held that if a testator expressly directs that a certain portion of his real estate be sold and the proceeds distributed, the conver- sion of the realty into personalty takes effect as of the time of the testator's death and the proceeds are subject to the tax.— Miller v. WHICH LAW GOVERNS. 371 §289. The Same Subject: As to Transfers Under a Power of Appointment. The appointee under a power of appointment by the will of the donee of the power, as we have before shown, takes under the grantor of the power.®'' Yet for the pur- pose of an inheritance or succession tax, the transaction is generally viewed as though the appointee acquired his interest directly from the donee of the power and the tax is imposed accordingly.®'^ But where the exercise of the power of appointment effects no change in the R. A. (N. S.) 290, 70 Atl. Commonwealth, 111 Pa. St. 321, 2 Atl. 492; Dundas' Appeal, 64 Pa. St. 325; Roland v. Miller, 100 Pa. St. 47; Estate of Williamson, 153 Pa. St. 508, 26 Atl. 246; Estate of Coleman, 159 Pa. St. 231, 28 Atl. 137. But if the right to sell the real estate is merely permissive or, although expressly directed, is not to he sold until some future time, the character of the real property is not changed until the time of the actual sale and con- version into personalty. — Miller v. Commonwealth, 111 Pa. St. 321, 2 Atl. 492; Estate of Hale, 161 Pa. St. 181, 28 Atl. 1071; In re Hand- ley's Estate, 181 Pa. St. 339, 37 Atl. 587. Where a testator, in his will, di- rected his executors to sell his land in Pennsylvania, the pro- ceeds of such sale were not sub- ject to the inheritance tax in Pennsylvania. The domicile of the decedent testator determines the tax. — ^In re Shoenberger's Estate, 221 Pa. 112, 128 Am. St. Rep. 737, 19 L. 579. The conversion of realty into personalty after the death of the owner would not alter the rule that the inheritance or succession tax can be imposed by a state only on real property actually within its borders. — Custance v. Bradshaw, 4 Hare 315; Weaver's Estate V. State, 110 Iowa 328, 81 N. W. 603; Matter of Swift, 137 N. Y. 77, 18 L. R. A. 709, 32 N. E. 1096. Compare: Attorney-General v. Lomas, L. R. 9 Ex. 29; Forbes v. Steven, L. R. 10 Eq. 178; Attor- ney-General V. Brunning, 8 H. L. Cas. 243. 66 See, ante, § 280. 67 Fisher v. State, 106 Md. 104, 66 Atl. 661; In re Lowndes Estate, 60 Misc. Rep. 506, 113 N. Y. Supp. 1114; In re Kissel's Estate, 65 Misc. Rep. 443, 121 N. Y. Supp. 1088; In re Fearingr's Estate, 138 App. Div. 881, 123 N. Y. Supp. 396; People v. Williams, 69 Misc. Rep. 402, 127 N. Y. Supp. 749; 372 COMMENTARIES ON THE LAW OP WILLS. devise as originally made, as, for instance, where a re- mainder was created under the will of the donor of the power, but granting a power of appointment under which the donee of the power could alter the devise, if the power is exercised so that no change is effected in the original devise, no tax will be levied under the will of the donee of the power.** §290. The Same Subject: The Rule That Personal Property Follows the Owner, Not Controlling. The decisions as to inheritance or succession taxes re- garding personal property are very conflicting. The stat- Matter of Dows, 167 N. Y. 227, 88 Am. St. Rep. 509, 52 L. R. A. 433, 60 N. B. 439; In re Cooksey's Es- tate, 182 N. Y. 92, 74 N. E. 880; In re Fearing's Will, 200 N. Y. 340, 93 N. E. 956. See, also, Commonwealtli v. StoU's Admr., 132 Ky. 234, 114 S. W. 279, 116 S. W. 687. In Re Warren's Estate, 62 Misc. Rep. 444, 116 N. Y. Supp. 1034, it was held that where an ap- pointment is made by will under a power, and the will must be resorted to in order to establish the right of the appointee to the property, the transfer was ef- fected by the will and was sub- ject to the transfer tax. In Re Cooksey's Estate, 182 N. Y. 92, 74 N. E. 880, it was held that where the will of a father gave his daughter the power to appoint her children to certain trust property, they to have the remainder if she failed to make the appointment, that the daugh- ter having made her will wherein she made the appointment, the appointees took under her will and not under the father's. 68 In re Spencer's Estate, 119 App. Div. 883, 107 N. Y. Supp. 543; In re Ripley's Estate, 122 App. Div. 419, 106 N. Y. Supp. 844. In Re Chapman's Estate, 61 Misc. Rep. 593, 115 N. Y. Supp. 981, it was held that the original will had created an estate in re- mainder which was vested, and al- though the power of appointment was exercised, the tax was not to be imposed. If a power of appointment, al- though exercised, is not accepted by the appointee, as where chil- dren elected to take under their grandfather's will and not under a subsequent appointment, no tax was imposed. — In re Lewis' Es- tate, 60 Misc. Rep. 643, 113 N. Y. Supp. 1112. WHICH LAW GOVERNS. 373 utes in the various states have a general resemblance,- but the different construction given to such statutes in the different jurisdictions makes it impossible to do more, in this work, than discuss the general principles involved. For the general purposes of execution and construction of a will of personal property, the rule of mobilia sequuntur personam applies. When, however, it is a matter of the state imposing and collecting an inheritance or succession charge, the rule, which is in ■fact a fiction of law, to a large extent disappears, in some cases being denied as having any application.*^ A state , 69 In Eldman v. Martinez, 184 ;tr. S. 578, 46 L. Ed. 697, 22 Sup. Ct. 515, the court says: "In mat- ters of taxation and of subjecting the personal property of non-resi- dents to the claims of local credi- tors of the owner, serious en- croachments have been made upon the ancient maxim (mobilia sequuntur personam), and a rule has grown up in modern times that legislation may deal with the personal as well as the real prop- erty of non-residents in their jur- isdiction; and that such property, while enjoying the benefits and protection of the local law, may be taxed for the expenses of the local government." — C i t i n g Green v. Van Buskirk, 5 Wall. 307, 18 L. Ed. 599, s. c, 7 Wall. 139, 19 L. Ed. 109; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 23 L. Ed. 1003; Walworth v. Harris, 129 U. S. 355, 32 L. Ed. 712, 9 Sup. Ct. 340; Security Trust Co. V. Dodd, 173 U. S. 624, 43 L. Ed. 835, 19 Sup. Ct. 545. To the same effect, Buck v. Beach, 206 U. S. 392, 11 Ann. Cas. 732, 51 L. Ed. 1106. 27 Sup. Ct 712. In Matter of Ramsdill, 190 N. Y. 492, 18 L. R. A. (N. S.) 946, 83 N. E. 584, the court says: "When a specific foreign legatee of a for- eign testator can obtain satisfac- tion of his legacy in a foreign jurisdiction, the executor can not be compelled to pay such legacy out of the assets within our jur- isdiction. This is the necessary result of the practical and obvious distinction between testacy and intestacy as applied to this sub- ject of taxation. If a specific leg- atee need not the intervention of our laws or courts to obtain what comes to him under a for- eign will through foreign assets, in a foreign jurisdiction, our laws can not coerce an executor into paying his legacy out of funds within our jurisdiction for the sole purpose of exacting a tax. But in a case of intestacy the rule 374 COMMENTAEIES ON THE LAW OP WILLS. may legally impose tlie tax on transfers of property, by will or under the laws of succession, if it acquires jur- isdiction of the transfer or the subject matter. The stat- utes control and the enactments of each jurisdiction must be referred to in every case in order to explain the meaning of a decision thereunder. Practically the only universal principle which may be laid down is that no state can impose a tax on the transfer of property owned by a decedent who was domiciled and who died out of the state and whose estate is probated in a foreign jur- isdiction, unless such property, tangible or intangible, is within the state, or resort must be had to the laws or the courts of the state to effectuate the transfer. Is essentially different, because the distributee takes an undivided interest in the whole estate; and if part of it happens to be within our jurisdiction, he can only get his share of what is here under our laws and through our courts." Where a man and wife, resi- dents of a foreign country, be- come domiciled In New York, the personal property which passes at the death of the husband is sub- ject to the transfer tax of that state, the property being within the state.— Matter of Majot, 199 N. Y. 29, 29 L. R. A. (N. S.) 780, 92 N. E. 402. In Illinois, as to personal prop- erty, it is held that the tax may be imposed in every case where the state has jurisdiction either of the person of the beneficiary or distributee, or property which passes, irrespective of the domi- cile of the owner or of the situar tion of the property, if the prop- erty passes by reason of some right or privilege granted by the laws of the state. — People v. Grif- fith, 245 111. 532, 92 N. E. 313. Under the laws of Montana, Rev. Codes, sec. 7675, all prop- erty may be taxed which passes by will or under the laws of suc- cession of that state, irrespective of the domicile of the owner. — State V. District Court, 41 Mont. 357, 109 Pac. 438. The status of the distributee and of the right of the state to the inheritance tax is fixed at the time of the death of the one whose property is to pass. — In re Lander's Estate, 6 Cal. App. 744, 93 Pac. 202 ; People v. Barker, 150 N. Y. 52, 44 N. E. 785; In re Cook's Estate, 187 N. Y. 253, 79 N. E. 991. WHICH LAW GOVERNS. 375 §291. The Same Subject: Taxes as to Personalty Sometimes Governed hy Law of Domicile. The Supreme Court of the United States and the courts of some local jurisdictions have, in construing par- ticular statutes, in effect followed the rule that if a dece- dent dies in the state wherein he has had his domicile, and his estate is administered there, his personal prop- erty is considered as having followed him; and if such decedent left any personal property in another state, the tax on the same should be assessed under the law of his domicile.'''' But it is nowhere laid down that the rule 70 Foreign Held Bonds Case, 15 Wall. (U. S.) 300, 21 L. Ed. 179; Eidman v. Martinez, 184 U. S. 578, 46 L. Ed. 697, 22 Sup. Ct. 515; Gallup's Appeal, 76 Conn. 617, 57 Atl. 699; Bridgeport Trust Co.'s Appeal, 77 Conn. 657, 60 Atl. 662; Hopkins' Appeal, 77 Conn. 644, 60 Atl. 657; State v. Dalrymple, 70 Md. 294, 3 L. R. A. 372, 17 Atl. 82; Neilson v. Russell, 76 N. J. L.. 655, 131 Am. St. Rep. 673, 19 L. R. A. (N. S.) 887, 71 Atl. 286; Astor V. State, 75 N. J. Bq. 303, 72 Atl. 78; Matter of Dingman, 66 App. Div. (N. Y.) 228, 72 N. Y. Supp. 695; Matter of Swift, 137 N. Y. 77, 18 L. R. A. 709, 32 N. E. 1096; In re Bittinger's Estate, 129 Pa. St. 338, 18 Atl. 132; In re Lines' Estate, 155 Pa. St. 378, 26 Atl. 728; In re Miller's Estate, 182 Pa. St. 157, 37 Atl. 1000; In re Milliken's Estate, 206 Pa. St. 149, 55 Atl. 853. But compare: Blackstone v. Mil- ler, 188 U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277; Dixon v. Russell, 78 N. J. L. 296, 73 Atl. 51; Matter of Bronson, 150 N. Y. 1, 55 Am. St. Rep. 632, 34 L. R. A. 238, 44 N. E. 707. In Eidman v. Martinez, 184 U. S. 578, 46 L. Ed. 697, 22 Sup. Ct. 515,- it was held that the war tax of 1898 imposing a tax on legacies or distributive shares arising from personal property passing "from any person possessed of such property, either by will, or by the intestate laws of any state or territory," did not apply to fed- eral, municipal and corporation bonds in the custody of agents of the deceased in New York, the decedent being a Spaniard, domi- ciled abroad, and the property passing to his son, also an alien and domiciled abroad, partly by will and partly by the intestate laws of a foreign country. The English rule was approved. Compare: In Blackstone v. Mil- ler, 188 U. S. 189, 47 L. Ed. 439, 376 COMMENTARIES ON THE LAW OF WILLS. prevails against the statute, if the state has jurisdiction ; but it is considered in determiniug the question of jur- isdiction, as in the case of a debt due a non-resident, there being no tangible property within the state. Under a former New Jersey statute taxing all prop- erty which ' ' shall be within the state which shall be trans- ferred by inheritance, distribution, bequest, devise, deed, grant, sale or gift made or intended to take effect in pos- session or enjoyment after the death of the intestate, tes- tator, grantor or bargainor, ' ' it was held that stock in a New Jersey corporation which had belonged to a testator who had been domiciled in England where his will was probated, was not subject to the inheritance tax in New Jersey. The court said that the succession to the prop- erty was under the English law, and that the title to the legacy — stock in a New Jersey corporation — would not become complete and perfect until the executors had assented, and that they would not assent until the debts had been first paid. The executors of the domicile must determine whether the estate is solvent or not, and it is only after the accounts of the executors are settled that it can be ascertained whether the legacy will pass under 23 Sup. Ct. 277, construing the 76 N. J. L. 655, 131 Am. St. Rep. New York statute, it was held 673, 19 L. R. A. (N. S.) 887, 71 Atl. that money on deposit in New 286, and Astor v. State, 75 N. J. York banks could be taxed, the Eq. 303, 72 Atl. 78, were under the presence of the debtor In the state New Jersey law of 1894. But the being in itself sufficient for the law was amended in 1906, and purpose of jurisdiction. the former decisions are no longer To the same effect, see Gallup's of any effect in that state, but are Appeal, 76 Conn. 621, 57 Atl. 699; valuable for reference as to the Commonwealth v. Union etc. construction of any similar law. Transit Co., 118 Ky. 131, 142, 80 See Dixon v. Russell, 78 N. J. S. W. 490, 81 S. W. 268. I.. 296, 73 AU. 51. The cases of Neilson y. Russell, WHICH LAW GOVERNS. 377 the will or not. Therefore, the succession is complete only in the foreign jurisdiction, and such succession was not properly taxable under the New Jersey lawsJ^ §292. The Same Subject: Situs as Applied to Personal Prop- erty. Under a majority of the statutes in the United States imposing an inheritance or transfer tax, personal prop- erty will be taxed wherever it is found. Although it is the transfer which is taxed, yet the property is liable for its payment, and its presence in a state confers jurisdic- tion.'^^ Thus a Maryland statute which imposed an in- heritance tax on all property "passing from any person 71 Neilson v. Russell, 76 N. J. L. 655, 131 Am. St. Rep. 673, 19 L. R. A. (N. S.) 887, 71 Atl. 286. Under the law of New Jersey of 1894 (since amended), the tax on non-residents was imposed only in cases of inheritance, dis- tribution, bequest and devise. These words were held naturally applicable to the general succes- sion to the whole estate, but not to a particular succession to a special portion of the estate, which in the case at bar was stock in a New Jersey corpora- tion. General succession under a foreign law is held not taxable in New Jersey.— Astor v. State, 75 N. J. Eq. 303, 72 Atl. 78. Following Wallace v. Attorney- General, L. R. 1 Ch. App. 1; Em- bury's Estate, 45 N. T. Supp. 881; Eidman v. Martinez, 184 V. S. 578, 46 L. Ed. 697, 22 Sup. Ct. 515. The statute of New Jersey was amended in 1906, and by the sec- ond subdivision to the first section thereof it provides that a tax may be imposed "when the transfer is by will or intestate law of prop- erty within the state, and the de- cedent was a non-resident of the state at the time of his death." Under this last act, shares of stock in a New Jersey corpora- tion, owned by a non-resident de- cedent who died without the state, and which stock was not in New Jersey at the owner's death, was held subject to the tax. — Dixon v. Russell, 78 N. J. L. 296, 73 Atl. 51. 72 In re Weaver, 110 Iowa 328, 81 N. W. 603; State v. Dalrymple, 70 Md. 294, 3 L. R. A. 372, 17 Atl. 82; State v. Brim, 4 Jones Eq. (57 N. C.) 300; In re Speers, 6 Ohio Dec. 398; Estate of Hood, 21 Pa. St. 106; Orcutt's Appeal, 97 Pa. St. 179. 378 COMMENTAKIES ON THE LAW OF WILLS. who may die seised or possessed thereof, being in the state" was held to refer to property in the state and not to the person ; therefore personalty of a non-resident dying out of the state, which passed to non-residents, such personalty being within the state of Maryland, was subject to the taxJ^ T3 state V. Dalrymple, 70 Md. 294, 3 L. R. A. 372, 17 Atl. 82. To the same effect, see Com- monwealth V. Smith, 5 Pa. St. 142; In re Short's Estate, 16 Pa. St. 63; Gardiner v. Carter, 74 N. H. 507, 69 Atl. 939; Kingsbury V. Bazeley, 75 N. H. 13, 139 Am. St. Rep. 664, 20 Ann. Cas. 1355, 70 Atl. 916. See post, § 294, notes 79, 80, 81. A North Carolina statute Im- posing an inheritance tax upon "all personal property or goods bequeathed to strangers or col- lateral kindred, or which shall be distributed to, or amongst the next of kin, of any Intestate, where such next of kin are col- lateral relations of such intes- tate," was held to apply to prop- erty in North Carolina descending to a brother from an intestate domiciled in Canada, the court holding the rule was applicable to both real and to personal prop- erty. — Alvany v. Powell, 2 Jones Bq. (N. C.) 51. In Carlton v. Carlton, 72 Me. 115, 39 Am. Rep. 307, the court says: "The word 'property' in- cludes choses in action as well as choses in possession. It includes money due as well as money pos- eessed." Where a debt was due from a resident of New York to a dece- dent who had been domiciled with- out the state, and the note evi- dencing the same was within the state when the creditor died. It was held that the transfer tax attached. — ^In re Tiffany's Estate, 143 App. Div. 327, 128 N. Y. Supp. 106. Deposits within the state at the time of the death of a non-resi- dent owner were held taxable, al- though the argument was made that they had been transmitted there only for the purpose of in- vestment. — In re Myers' Estate, 129 N. Y. Supp. 194. Mortgages, notes, land contracts and papers representing property tn Michigan were in the posses- sion of the owner who died domi- ciled in New York. All devisees and legatees were non-residents of Michigan, yet the tax was Im- posed on the ground that it was necessary to come imder the Mich- igan law in order that ancillary administration might be had and the estate closed. — In re Roger's Estate, 149 Mich. 305, 119 Am. St. WHICH LAW GOVERNS. 379 In New York the statutes relative to inlieritance and succession taxes have been several times amended. Under a former act, where tax was imposed upon "all property which shall pass by will or by the intestate laws of the state, from any person who may die seised or possessed of the same while being a resident of the state, or which property shall be within this state, or any part of such property, . . . transferred by deed, grant, sale or gift made or intended to take effect . . . after the death of the grantor," it was held that the statute did not apply to property within the state which passed by will or under the laws of succession from a non-resident decedent to either relatives or strangers dom- iciled within the state; and that the clause, "or which property shall be within the state," was limited to such property as was transferred by deed, grant or gift inter vivos.''* When the above statute was amended and a clause was added thereto imposing the tax where the property belonged to a non-resident decedent, the clause reading: "Or if such decedent were not a resident of the state at the time of death, which property, or any Rep. 677, 11 L. R. A. (N. S.) 1134, 373, 91 N. Y. Supp. 858, affirmed 112 N. W. 931. 1^2 N. Y. 524, 74 N. E. 1116. Moneys covered by a check sent Compare: Buck v. Beach, 206 to New York, drawn against a U. S. 392, 11 Ann. Cas. 732, 51 bank deposit In Montana, and re- ceived in New York and deposited for collection by the payee, but L. Ed. 1106, 27 Sup. Ct. 712, in which case it was held that mort- gage notes made and payable in one state were not subject to the which had not been collected at inheritance tax in another state the death of the payee, were held merely because, at the death of subject to the transfer tax im- the owner, they were within such posed by the New York law, the state merely for the purpose of reason being that the moneys safe-keeping, were subject to the payee's order. 74 Matter of Bnston, 113 N. Y. —Matter of Daly, 100 App. Div. 174, 3 L. R. A. 464, 21 N. E. 87. 380 COMMENTABIES ON THE LAW OP WILLS. part thereof, shall be within this state," it was held that personal property of a non-resident at the time of his death, which had been kept continuously within the state and invested there, was subject to the taxJ^ §293. The Same Subject: "Tangible or Intangible" Personal Property. The succession to property of non-residents was held to be subject to taxation in Massachusetts the same as if the property belonged to those domiciled in the state, under a statute imposing a tax upon ' ' all property within the jurisdiction of the commonwealth, and any interest therein, whether belonging to inhabitants of the com- monwealth or not, and whether tangible or intangible, which shall pass by will or by the laws of the common- wealth regulating intestate succession." Therefore the property of a decedent non-resident, consisting of moneys on deposit and stocks and bonds of railroads and of other states and the like, and which were within the jurisdiction of the state of Massachusetts, was held sub- ject to taxation.'^* And stock in corporations organized under the laws of Massachusetts and of national banking corporations located within the state belonging to a non-resident and not within the state at his death, have been held to be within the jurisdiction of Massachusetts, within the meaning of the statute.''^ 75 Matter of Estate of Romaine, See, also, Callahan v. Wood- 127 N. Y. 80, 12 L. R. A. 401, 27 bridge, 171 Mass. 595, 51 N. E. N. B. 759. 176; In re Bronson, 150 N. Y. 1, 76 Callahan v. Woodbridge, 171 55 Am. St. Rep. 632, 34 L. R. A. Mass. 595, 51 N. B. 176. 238, 44 N. E. 707; Tappan v. Mei- 77Greves v. Shaw, 173 Mass. chants National Bank, 19 Wall. 205, 53 N. E. 372. .490, 22 L. Ed. 189; First National WHICH LAW GOVERNS. 381 §294. The Same Subject: Bonds and Certificates of Stock of Corporations Distinguished. Certificates of stock in a corporation have been dis- tinguished from bonds issued by the same company. Stock has been held to represent a definite interest in the corporate property, a definite right to certain dividends, if any, and a definite right to certain proceeds upon dis- solution. Therefore, as to stock, if issued by a domestic corporation, it has been held subject to an inheritance or succession tax, irrespective of the domicile of the de- cedent owner or the actual physical location of such stock at the time of the owner's death. The fact of the corporation having been organized under the law of the state has been held sufficient for the purposes of juris- dictioii.'^* On the other hand, bonds issued by a domes- tic corporation have been classified simply as debts. Being intangible, they follow the person of the owner and therefore are taxable only under the law of the domicile of the decedent owner. The general rule may be said to be that the situs of a debt due from the resi- Bank of Mendota v. Smith, 65 111. chusetts being one, was held sub- 44, 55; Street Railroad Co. v. Mor- ject to the collateral inheritance row, 87 Tenn. 406, 427, 2 L. R. A. tax in the latter state. — ^Kingsbury 853, 11 S. W. 348. v. Chapin, 196 Mass. 533, 13 Ann. T8 Matter of Bronson, 150 N. Y. Cas. 738, 82 N. E. 700. 1, 55 Am. St. Rep. 632, 34 L. R. A. Stock owned by a non-resident 238, 44 N. E. 707. decedent in a domestic corporation As to bonds, see, also, Callahan was held to constitute an inter- V. Woodbridge, 171 Mass. 595, 51 est in the corporate property and N. E. 176. 'was subject to the tax which in- Stock of a railroad company in- eluded "all property within the corporated under the laws of jurisdiction of the state." — In re more than one state, and owning Culver's Estate, 145 Iowa 1, 25 property and operating in the L. R. A. (N. S.) 384, 123 N. W. states where organized, Massa- 743. 382 COMMENTAEIES ON THE LAW OF WILLS. dent of one state to a decedent who had been domiciled and who died in another state, is that of the domicile of the decedent. Such a debt is not within the state of the debtor/® and the rule has been applied even though the debt may have been secured by a mortgage on real property within the state.^" But a distinction has been 79 Matter of Corning, 3 Misc. Rep. (N. Y.) 160, 23 N. Y. Supp. 285; Matter of Phipps, 77 Hun (N. Y.) 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 641, 37 N. B. 823 ; In re Stanton's Estate, 15 Pa. Co. Ct. 17. Contra: In re Joyslin, 76 Vt. 88, 56 Atl. 281, wherein it was held that debts, although evidenced by notes, had no situs other than that of the debtor. See, ante, § 292, note 73. "Debts owing by corporations, like debts owing by individuals, are not property of the debtors in any sense; they are obligations of the debtors, and only possess value in the hands of creditors. With them they are property, and in their hands they may be taxed. To call debts property of the debtors is simply to misuse terms. All the property there can be, in the nature of things, in debts of corporations belong to the cred- itors, to whom they are pay- able, and follows their domicile, wherever that may be. Their debts can have no locality sep- arate from the parties to whom they are due." — Foreign Held Bonds Case, 15 Wall. (U. S.) 300, 21 L. Ed. 179. This case is distinguished and limited in Blackstone v. Miller, 188 U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277. In Orcutt's Appeal, 97 Pa. St 179, a distinction is made between tangible and intangible property, holding that bonds of the United States have no situs different from the owner, irrespective of where they may be deposited, and such bonds belonging to a citizen of New Jersey who was domiciled there at his death, were not subject to an inheritance tax in Pennsylvania although the bonds were on deposit in that state. 80 Matter of Preston, 75 App. Div. (N. Y.) 250, 78 N. Y. Supp. 91; In re Stanton's Estate, 15 Pa. Co. Ct. 17. Bonds, although secured by a mortgage on property within the state, if belonging to a non-resi- dent decedent and actually with- out the state at the time of his death, are not considered as being within the state for the purposes of the tax. — ^In re Fearing's Will, 200 N. Y. 340, 93 N. E. 956. Compare: In re Gibbs' Estate, 60 Misc. Rep. 645, 113 N. Y. Supp. 939. WHICH LAW GOVERNS. 383 made where such bonds, although the property of the estate of a decedent who had been domiciled without the state, were physically within the state at the time of the owner's death. In such a case the actual presence of the bonds within the state, even of a foreign corpora- tion, has been held sufficient for the purposes of impos- ing the tax.®^ §295. The Same Subject: What Is "Property Within the State?" As to what constitutes "property within the state," is the subject of conflicting decisions. Under a New York statute which defined the word "property" to include all property or interests therein over which the state had jurisdiction, bonds owned by a non-resident who had pos- session of them at his death, were held not to be subject to the tax, since they simply represented a debt or chose in action which followed the person of the creditor and was inseparable from him. As to shares of stock of a As to debts of a decedent, cedent is liable for his debts, the ■where the personal estate Is li- law of the situs of the property able, the law of the domicile of governs. — Hanson v. Walker, 7 the decedent controls. — ^Rice v. L. J. Ch. 135; Dickinson v. Harbeson, 63 N. Y. 493. Hoomes, 8 Gratt. (Va.) 353, 410. Compare: Bowaman, v. Reeve, si See, post, § 295, and notes. Prec. In Ch. 577. j^ Blackstone v. Miller, 188 Contra: The Massachusetts rule is different; there a debt secured by a mortgage on real property within the state is held subject to the inheritance or succession U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277, the court says: "Bonds and negotiable Instruments are more than merely evidences of tax.— Kinney v. Treasurer and debt. The debt is Inseparable Receiver General, 207 Mass. 368, from the paper which declares Ann. Cas. 1912A 902, 35 L. R. A. and constitutes it, by a tradition (N. S.) 784, 93 N. B. 586. which comes down from more Where the real estate of a de- archaic conditions." 384 COMMENTAKIES ON THE LAW OP WILLS. New York corporation owned by a non-resident decedent, althongli such stock was not physically within the state, yet a diiferent rule was laid down. It was held that each share represented a distinct interest in the corporate property and that although personalty follows the owner, yet each certificate of stock represented a right to share in the proceeds or property of the corporation, which did not preclude the taxing of the distinct interest in the actual property represented by the certificate. ^^ In the foregoing case it will be noted that the bonds in question were not physically within the state. If, how- ever, the fiction that personal property follows the owner does not govern, and it does not control in matters of inheritance or succession taxes as against the wording of the statute, since a state may lawfully impose any tax upon any subject matter over which it can acquire jur- isdiction, the presence of the debtor within the state, as would be the case with bonds issued by a domestic corporation, may be held sufl6.cient to allow a state to im- pose a tax upon the right to acquire the property right 82 Matter of Bronson, 150 N. Y. In order to permit this It must 1, 55 Am. St. Rep. 632, 34 L. R. A. have some practical existence in 238, 44 N. B. 707. the state that assumes jurisdic- In a strong dissenting opinion tion over it either for the purpose in the Matter of Bronson, supra, of taxation or the collection of Justice Vann, concurred in by one debts. In the latter case the resi- other, stated that bonds were dence of the debtor Is deemed to property within the meaning of give the debt a practical existence the act and were subject to the In the state where the debtor re- tax, saying: "There is nothing, sides, because the non-resident therefore, in the nature of the creditor, if his claim is not paid most Intangible right, such as a voluntarily, must go where his debt without any written evidence debtor is and invoke the aid of thereof, to prevent the legislature the laws in force there, in order from giving it a situs apart from to collect it." the residence of the owner, but WHICH LAW GOVERNS. 3S5 of sucli debt from a decedent, either by will or under the laws of succession.^' In another New York case, where a resident of Ehode Island leaving a will dispos- ing of moneys on deposit in banks in New York, and bonds and certificates of stock of both New York and other corporations and bonds of the United States which were in a safe deposit box in New York City at the time of his death, it was held that the certificates of stock and bonds of both domestic and foreign corporations, being physically within the state, were subject to the transfer tax. The United States bonds, however, were held exempt merely for the. reason that they were not covered by the statute.^* 83 In tie Matter of Houdayer, 150 N. Y. 37, 55 Am. St. Rep. 642, 34 L. R. A. 235, 44 N. E. 718, in attempting to fix a test as prop- erty within the state, the court says: "While distribution of the fund belongs to the state where the decedent was domiciled, as such distribution can not be made until his administrator has come into this state to get the fund, possibly, after resorting to the courts for aid in reducing it to possession, the fund has a situs here, because it is subject to our laws. A reasonable test in all cases, as it seems to me, is this: Where the right, whatever it may be, has a money value and can be owned and transferred, but can not be enforced or converted into money against the will of the per- son owning the right without com- ing into this state, it is property I Com. on Wills— 25 within this state for the purposes of a succession tax." 84 Matter of Whiting, 150 N. T. 27, 55 Am. St Rep. 640, 34 L. R. A, 232, 44 N. E. 715. See, also. Matter of Houdayer, 150 N. Y. 37, 55 Am. St. Rep. 643, 34 L. R. A. 235, 44 N. E. 718. Personal property, consisting of stocks and bonds of foreign and domestic corporations, mortgages upon lands in New York, and moneys on deposit in the banks of that state, which belonged to a decedent who was a resident of New Jersey, was held liable for the tax. — Matter of Morgan, 150 N. Y. 35, 44 N. E. 1126. A deposit, however, is consid- ered as tangible property and therefore is viewed differently from an ordinary debt and is taxed according to its situs no matter what the domicile of the 386 COMMENTARIES ON THE LAW OF WILLS. §296. The Same Subject: English Rule. In England, different statutes apply to the taxing of bequests or legacies of personal property under the will of a decedent testator, from the taxing of the right to succeed to the property of an intestate decedent.^® The depositor may have been. — Black- stone V. Miller, 188 U. S. 189, 47 L. Ed. 439, 23 Sup. Ct. 277; Matter of Clark, 2 Connoly (N. Y.) 183; Matter of Blackstone, 69 App. Div. 127, 74 N. Y. Supp. 508; see 171 N. Y. 682, 64 N. E. 1118; Matter of Houdayer, 150 N. Y. 37, 55 Am. St. Rep. 642, 34 L. R. A. 235, 44 N. E. 718. As to corporate stocks, in the case of a non-resident decedent the property is considered as in the state where the corporation Is organized and doing business and would be subject to the tax according to the laws of the state where the corporation is located. — Matter of Bronson, 150 N. Y. 1, 55 Am. St. Rep. 632, 34 L. R. A. 238, 44 N. E. 707; Matter of New- comb, 71 App. Div. 606, 76 N. Y. Supp. 222, affirmed 172 N. Y. 608, 64 N. E. 1123. But where a resident decedent has died having the actual pos- session of certificates of stock of a foreign corporation it has been held that the disposition of such stock may be taxed under the laws of his domicile. — Matter of Whiting, 150 N. Y. 27, 55 Am. St. Rep. 640, 34 L. R. A. 232, 44 N. E. 715. As to corporate bonds, however. their situs has been determined to be the place where they actu- ally are at the time of the owner's death. — Matter of Whiting, 150 N. Y. 27, 55 Am. St. Rep. 640, 34 L. R. A. 232, 44 N. E. 715; Matter of Morgan, 150 N. Y. 35, 44 N. E. 1126; Matter of Bronson, 150 N. Y. 1, 55 Am. St. Rep. 632, 34 L. R. A. 238, 44 N. B. 707. Contra: Orcutt's Appeal, 97 Pa. St. 179. 85 English Statutes. — In England the "Legacy Duty Act," impos- ing a legacy tax, reads in part as follows: That "for every leg- acy, specific or pecuniary, given by any will of any person out of his personal or movable estate, or out of or charged upon his real or heritable estate," the duties im- posed by the act shall be pay- able. A different act, known as the "Succession Duty Act," im- poses a tax on the right of suc- cession, the term "property" as used in the act including property of every description. The act in part is as follows: "Every past or future disposition of property, by reason whereof any person has or shall become beneficially en- titled to any property or the in- come thereof upon the death of any person dying after the time WHICH LAW GOVERNS. 387 rule, as to taxing a bequest or legacy of personal prop- erty, is that such tax should be imposed according to the law of the domicile of the decedent, no matter where such property may be actually situated. Thus where a British subject domiciled and dying in a British colony where the law of Holland was in force, was entitled at the time of his death to a large debt in Scotland which arose from money acquired and trans- mitted to Scotland by him while living abroad, it was held that a legacy of such debt was not liable to the tax in England. The fact that the personal property is ad- ministered in England does not impose a legacy tax. Such liability does not depend upon any act of the ex- ecutor proving the will in England, or of its adminis- tration there.** Conversely, where a British subject died domiciled in England, a legacy tax was properly imposed . appointed for the commencement in Astor v. State, 75 N. J. Eq. 303, of this act, . . . shall be 72 Atl. 78. deemed to have conferred or to In Thomson v. Advocate-Gen- confer on the person entitled hy eral, 12 CI. & Fin. 1, Lord Chief reason of any such disposition, a Justice Tindal says: "It is ad- 'succession.' " mitted in all the decided cases, 86 Thomson v. Advocate - Gen- that the very general words of the eral, 12 CI. & Fin. 1, overruling statute, 'every legacy given by Attorney-General v. Cockerell, 1 any will or testamentary instru- Price 165, and Attorney-General v, ment of any person,' must of ne- Beatson, 7 Price 560. cessity receive some limitation in See, also, Attorney-General v. their application, for they can not Forbes, 2 CI. & Fin. 48; Wallace in reason extend to every person, V. Attorney-General, L. R. 1 Ch. everywhere, whether subjects of App. 1. this kingdom or foreigners, and The case of Thomson v. Advo- whether at the time of their death cate-General, supra, was approved domiciled within the realm or in Eidman v. Martinez, 184 U. S. abroad. And as your lordship's 578, 46 L. Ed. 697, 22 Sup. Ct. 515. question applies only to legacies The case of Wallace v. Attor- out of personal estate, strictly and ney-General, supra, was approved properly so called, we think such 388 COMMENTARIES ON THE LAW OF WILLS. on Ms personal property situated in foreign countries. ^'^ And where a British subject died in India, who had never been domiciled there, his personal property, although most of it was situated abroad, was held liable to the leg- acy duty,^* But as to taxing the right to succeed to the property of an intestate decedent, it is held that where either a British subject or an alien succeeds to personal property under a British settlement and which property is vested in British trustees, he is liable to the succession tax, irre- spective of the nationality or domicile of the settlor, or whether the settlement had been made by will or deed.*® necessary limitation is, that the statute does not extend to a will of any person who at the time of his death was domiciled out of Great Britain, whether the as- sets are locally situate within England or not. For we can not consider that any distinction can be properly made between debts due to the testator from persons resident in the country in which the testator is domiciled at the time of his death, and debts due to him from debtors resident in another and different country; but all such debts do equally form part of the personal property of the testator or Intestate, and must all follow the same rule, the law of the domicile of the tes- tator." To the same effect, see Arnold V. Arnold, 2 Myl. & Cr. 256; Wal- lace V. Attorney-General, L. R. 1 Ch. App. 1; LyaJl v. Lyall, L. R. 15 Eq. 1. 87 In re Ewin, 1 Cr. & Jerv. 151. 88 Attorney-General v. Napier, 6 Exch. 217, 20 L.. J. Ex. 173. 89 Attorney-General v. Camp- bell, L. R. 5 H. L. 524, 41 L. J. Ch. 611; Lyall t. Lyall, L. R. 15 Eq. 1. In earlier cases, with reference to the statutes above mentioned, "Legacy Duty Act" and "Succes- sion Duty Act," a distinction was drawn between them. In Thomson v. Advocate-Gen- eral, 12 CI. & Fin. 1, it was said that such distinction was "ex- tremely thin." In Lyall v. Lyall, L. R. 15 Eq. 1, the former cases were reviewed and it was said that the argu- ment against a "legacy duty," as stated in Thomson v. Advocate- General, supra, would apply with equal force to the taxes under the "Succession Duty Act." But in Attorney-General v. Campbell, L. R. 5 H. L. 524, 41 L. J. Ch. 611, It had been decided WHICH LAW GOVERNS. 389 that when a person, whether an alien or a British subject, suc- ceeds to property under a British settlement vested in British trus- tees, he is liable to pay a suc- cession duty, whether the settle- ment be made by an alien or a British subject, and whether the settlement be made by deed or will, and wherever the property is locally situated. The case of Lyall v. Lyall, supra, with apparent reluctance, followed the decision in Attorney-General V. Campbell, supra, as to "succes- sion taxes," but Thomson v. Advo- cate-General, supra, as to "legacy taxes," was not affected. Thus, under Thomson v. Advo- cate-General, supra, if an alien, on his marriage, should invest in con- suls in trust for himself for life, and afterward as he should ap- point by will, and, in default of an appointment, to his son abso- lutely, if he should die after hav- ing bequeathed the property to A. B., A. B. would not have to pay a "legacy duty"; but under Attorney-General v. Campbell, su- pra, if the alien should die "intes- tate," then the son would have to pay a "succession tax." CHAPTER Xin. LEGAL DISABILITIES IMPOSED UPON CERTAIN PERSONS. § 297. Distinction between disabilities imposed and mental incapacity. § 298. Infancy : Testators under a fixed age can not make valid wills: English rule. § 299. The same subject : Eule in the United States. § 300. Manner of computing the time when minority ends. § 301. Married women : Disabilities at common law. §302. The same subject : Exeeptiona to the rule. § 303. The same subject: Eight of testamentary disposition of her "separate personal estate.'' §304. The same subject: Disability removed by husband's death, and other causes. § 305. The same subject : No power to devise lands. § 306, The same subject : Effect of subsequent marriage of a feme sole, or death of husband, on wills theretofort- executed. § 307. The same subject : Present rule in England : Married "Women's Property Act. § 308. The common law rule in the United States as to the disa^ bilities of married women. § 309. Construction of statutes removing the disabilities of mar- ried women. § 310. Limitation upon the right of a husband or wife to dispose of property in which the law gives the other an interest. § 311. The general principles prevailing in the United States as to the rights of married women. § 312. Civil death generally. § 313. Outlawry defined. § 314. Outlaws denied the right of making testamentary dispo- sitions. (390) LEGAL DISABILITIES. 391 § 315. Attainder and corruption of blood. §316. The same subject: Statutory regulations in England. § 317. Bills of attainder and corruption of blood in the United States : Constitutional provision. § 318. Civil death because of conviction of a felony. § 319. Disabilities of aliens : English rule. § 320. The same subject : American rule. § 321. The same subject : Distinction between title to real prop- erty passing by operation of law and by act of thk parties. §322. The same subject § 323. The same subject § 324. The same subject § 325. The same subject As to personal property. Disabilities of alien enemies. Effect of treaties. State regulations. §297. Distinction Between Disabilities Imposed and Mental Incapacity. The right to make a testamentary disposition of prop- erty is limited. No person of unsound mind, one lacking testamentary capacity, can make a valid will. The issue in such a case is the mental intelligence of the testator. Testamentary power, however, is denied to others, either wholly or partially, not because of unsoundness of mind, but for reasons of policy once existing, which to a limited extent still exist, and which have colored the law on the subject. Thus an infant under a certain age can not make a testamentary disposition of property, not because of unsoundness of mind such as insanity, but rather be- cause the law assumes that his mind has not sufficiently matured. Eestraints have been imposed upon the testa- mentary power of married women not because of lack of mental intelligence, but because of the common law rights of the husband in her property and because of his assumed control and dominion over her actions. The 392 COMMBNTAEIBS ON THE LAW OF WILLS. rights of aliens, outlaws and convicted felons to acquire, hold and dispose of property have been limited for rea- sons of state. Testamentary disability, therefore, does not in aU cases comprehend a lack of mental capacity. §298. Infancy: Testators Under a Fixed Age Can Not Make Valid Wills: English Rule. The rule, of the civil law was that a male of the age of fourteen years and a female of the age of twelve, might make a valid testament of personal property.^ But the testator, no matter of what age, was required to have sufficient mental capacity; therefore madmen, idiots, those whose minds had failed by reason of old age or drunkenness, thus lacking mental ability, could not make valid wills.^ The rule of the common Jaw fixed the same age limit.^ As to real property, the Statute of Wills of Henry VIII prescribed that no person, male or female, could devise the same unless of the age of twenty-one years. This, however, was only confirmatory of the rule already exist- ing at common law.* By statute, however, the father of 1 Godolph, pt. 1, ch. 8 ; Gilb. Bq. testament. — Swinburne Wills, pt. Rep. 74; 2 Bl. Com. *497; Hyde v. 11, § 2. Hyde, Prec. ch. 316; Deane v. Lit- 3 Bacon's Abr. (Bouvier Ed.) tlefield, 1 Pick. (Mass.) 239; Tit. Wills, B; Ex parte Holyland, Campbell v. Browder, 7 Lea 11 Ves. Jun. 11; In re Smith's (Tenn.) 240, 241. Estate, Clements v. Ward, 35 Ch. 2 Swinburne Wills, pt. 2, §§ 3, Div. 589; Hargrave's Notes to 4, 5, 6. Coke Litt. 89b, referring to the After a boy had reached the age conflict of opinion on the subject, of fourteen and a girl the age of and concluding that the above is twelve, each could approve a test- the established rule, ament of personal property made 4 Under the Statute of Wills, 32 before arriving at the ages men- Henry VIII, ch. 1, explained by tioned and thus validate a former 34 Henry VIII, ch. 5, no one could LEGAL DISABILITIES. 393 infant cHldren, although under the age of twenty-one years, if unmarried at the time of his death, by deed dur- ing his life or by his will and testament in writing, could appoint a testamentary guardian for such minors.^ But by Statute of Wills of 1 Victoria it is provided that no will made by any person under the age of twenty-one devise real property unless of the age of twenty-one years ; however, in certain localities, by reason of special customs, devises of lands were sanctioned at an earlier age. — ^Bacon's Abr. (Bouvier Ed.) Vol. 10, Tit. Wills, B; West v. West, 10 S. & R. (Pa.) 446; Campbell V. Browder, 7 Lea (Tenn.) 240, 241. Compare: Moore v. Moore, 23 Tex. 637; Goodell v. Pike, 40 Vt. 319. A devise made under the age of twenty-one years, although the testator died after reaching that age, was held void. — Herbert v. Torball, 1 Sid. 162 (15th year of Charles II). 6 Statute of 12 Charles II, ch. 24, section 8, provided, "That where any person hath or shall have any child or children under the age of one and twenty years, and not married at the time of his death, that It shall and may be lawful to and for the father of such child or children, whether born at the time of the decease of the father, or at that time in ventre sa mere, or whether such father be within the age of one and twenty years, or of full age, by his deed executed in his life- time, or by his will and testament in writing, in the presence of two or more credible witnesses, in such manner, and from time to time as he shall respectively think fit, to dispose of the custody and tuition of such child or chil- dren, for and during such time as he or they shall respectively re- main under the age of one and twenty years, or any lesser time, to any person or persons in pos- session or remainder, other than popish recusants." See, also. Statute of 14 and 15 Charles II, (I.). The age of twenty-one was prescribed by the Statute of 1 Vic- toria, ch. 26, for the appointment of guardians by deed or will. The above act regarding the appoint- ment of guardians, being a statu- tory regulation and not a part of the common law, would not pre- vail in America unless sanctioned by statute (Wardwell v. Wardwell, 9 Allen (Mass.) 518), but it has been, in some instances, assumed to be effective. — Noyes v. Barber, 4 N. H. 406; Balch v. Smith, 12 N. H. 437. It has, however, been substantially re-enacted in some states in the United States. 394 COMMENTARIES ON THE LAW OP WILLS. years shall be valid,® the term "will" extending to all testaments, codicils, appointments by will or by a writing in the nature of a will in the exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, and to any other testamentary disposition. No distinction is made between wills of real and of personal property.'' §299. The Same Subject: Rule in the United States. The general rule in the United States is the same as that in England, a will executed by a person under the age of twenty-one years being declared invalid. The rule, however, is not uniform. For instance, in California, a valid will of both real and personal property may be made by one over eighteen years of age, no distinction being made between males and females.^ In New York, a male of eighteen and a female of sixteen may bequeath personal property; in Alabama any person of eighteen may make a testament of personalty, but he must be twenty-one in order to devise realty.* The old reasons for drawing a distinction between males and females, and between real and personal property, have largely disap- peared ; the statutory regulations are liable to change at any time, and the particular laws in question in any case should be directly referred to. 6 statute 1 Victoria, ch. 26, | 7. ment of a guardian by deed or 7 Statute 1 Victoria, ch. 26 (In- will is therefore fixed at twenty- trod.) The Statutes of 12 Charles one years. II, ch. 24, and 14 and 15 Charles sCal. Civ. Code, S 1270. II (I.), are specially referred to, 9 N. Y. Consol. Laws (1909) D. and the age limit for the appoint- Ch. 244; Ala. Civ. Code, ch. 150. LEGAL DISABILITIES. 395 § 300. Manner of Computing the Time When Minority Ends. The rule of the conrmon law was that an infant reached his majority at the conmiencement of the day preceding the anniversary of his birthday; the law rejected all frac- tions of a day, and since a minor attained his majority at the last moment of the day when his minority ceased, he was deemed to be of full age on the first moment of such day.^" In some of these United States, however, the period of minority is fixed by statute as, for instance, in California, infancy covers that period from the first min- ute of the day on which a person is born to the first minute on the corresponding day completing the period of minority." § 301. Married Women : Disabilities at Common Law. Under the civil law, a married woman had the same right of bequeathing property as did a feme sole. But at common law, the personal property of the wife, including her chattels real, belonged absolutely to the husband, and her real property was subject to his disposition and passed to him wholly upon her death. Testamentary 10 'It has been adjudged that it day more generally than the civil one be bom on the first day of law does. The effect is to render February at eleven at night, and the day a sort of indivisible the last day of February in the point; so that any act, done in twenty-first year of his age, at the compass of it, is no more one o'clock in the morning, he referable to any one, than to any makes his will, of lands, and dies, other portion of it; but the act it is a good will, for he is then and the day are co-extensive." — of age." — ^Anon., 1 Salk. 44. Lester v. Garland, 15 Ves. Jun. To the same effect, see: Sir 248, 257. Robert Howard's Case, 2 Salk. ii Cal. Civ. Code, § 26. See, 625; Grant v. Grant, 4 Yo. & Col. also, Sayles v. Christie, 187 111. 256. 420; 58 N. E. 480. "Our law rejects fractions of a 396 COMMENTAEIES ON THE LAW OF WILLS. power in a married woman would have been inconsistent with such a rule. She could make a bequest of goods and chattels only with the consent of her husband. Such con- sent could be given after the death of the wife as well as before; but although a husband had himself given his consent, yet he had the right to revoke the same even after the death of his wife, or at least at any time before the will was proved.^^ If, however, the bequeathing by i2Swiiib. Wills, pt. 2, § 9; Bacon's Abr. (Bouvier Ed.) Tit. Wills, B; 2 Bl. Com. *498; Brook t. Turner, 2 Mod. 170; Rex v. Betts- worth, 2 Strange 891; Cutter v. Butler, 25 N. H. 343, 357, 57 Am. Dec 330; Henley V; Philips, 2 Atk. 49; Maas v. Sheffield, 10 Jur. 417; Barnes v. Irwin, 2 Dall. (XJ. S.) 199, 201, 1 L. Ed. 348; George v. Bussing, 15 B. Mon. (Ky.) 558; Osgood V. Breed, 12 Mass. 525; Newlin v. Freeman, 23 N. C. 514; Emery v. Neighbour, 7 N. J. Law 142, 11 Am. Dec. 541; Estate of Wagner, 2 Ashm. (Pa.) 448; Fisher v. Kimball, 17 Vt. 323. Consent given for a valuable con- sideration is irrevocable. — Os- mond's Estate, 161 Pa. St. 543, 29 Atl. 266. Section 25 of the statute of 29 Charles II, ch. 3, declared that the act shall not "be construed to extend to estates of feme cov- erts that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the making of said act." The queen consort was not re- stricted, as were other married women, but could bequeath her personal property without the consent of her husband. — Coke Litt. 133. The reason of the rule that a married woman could not make a testamentary disposition of her property was not because she was deemed lacking in testamentary capacity, but because of her belna under the dominion of her hus- band and of his right to and con- trol of her property. — ^Barnes v. Irwin, 2 Dall. (XJ. S.) 199, 202, 1 L. Ed. 348. There is a conflict of opinion as to whether a married woman could bequeath choses in action due her, the property of which had never come into her posses- sion during coverture, and of her wearing apparel and the like. Some have claimed she could make such bequests without her husband's consent, others have held to the contrary; yet it is LEGAL DISABILITIES. 397 the wife of her personalty was with, the bare assent of the husband, it was necessary that he survive her, for such consent was merely a waiver of his right to admin- ister to his wife ; and if he died before his wife, the will was void as against her next of kin.^* agreed that the husband could not give the goods away from her and that at his death they did not pass to his executor. — Bacon's Ahr. (Bouvier Ed.) Tit. Wills, B. A married woman can not ap- point an executor without the con- sent of her husband, the adminis- tration of her goods belonging to him. Upon the death of the wife, the husband has the right to bring an action to recover moneys which were due his wife at the time of her death, he succeeding directly to moneys which would subsequently become due. — An- drew Orel's Case, Coke Rep. pt. 4, 48b. 52b. "By marriage, the husband and wife are one person in law; that is, the very being or legal exist- ence of the woman is suspended during the marriage, or at least is Incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything." — 1 Bl. Com. *442. Such a will only operates to pass things that do not belong to the husband, but which he would have a right to after her death only as her administrator. The personal property which had be- longed to her, and which was re- duced to possession by the hus- band and thereby became his absolutely, does not pass by her will. — George v. .Bussing, 15 B. Mon. (Ky.) 558. A married woman could make a will of her personal property with the consent of her husband, which could be evidenced by con- sent after marriage or by an ante- nuptial agreement. — Bacon's Abr. (Bouvier Ed.) Tit. Wills, B. The right to make a disposition of property by will may be given a woman subsequently married, by an antenuptial agreement with her intended husband. — ^Newbury- port Bank v. Stone, 13 Pick. (Mass.) (1832) 420. A husband's assent might have been either express or implied. — Cutter V. Butler, 25 N. H. 343. 357, 358, 57 Am. Dec. 330. The husband's assent to the will of his wife might be implied from the fact that the will was in his handwriting. — Grimke v. Grimke's Bxrs., 1 Desaus. (S. C.) 366; Smelie's Exr. v. Reynolds, 2 Desaus. (S. C.) 66. 13 Bacon's Abr. (Bouvier Ed.) Tit. Wills, B, citing: Stevens y. Bagwell, 15 Ves. Jun. 156; Scam- mell V. Wilkinson, 2 East 552; Smelie's Exr., v. Reynolds, 2 De. 398 COMMENTARIES ON THE LAW OF WILLS. § 302. The Same Subject: Exceptions to the Rule. The rule as to disabilities of married women did not extend to those cases where she acted in a representative capacity, such as an executrix under a will.^* And where property had been transferred to a married woman with a power of appointment by will, she could make a devise of the same by exercising the power of appointment, the will not taking effect as such, but the property passing by reason of the exercise of the power of appointment.^' This rule applied to both real and personal property.^' §303. The Same Subject: Right of Testamentary Disposition of Her "Separate Personal Estate." Where personal property was settled on or held in trust for a married woman for her separate use, equity consid- ered that she took it with all the incidents belonging to ownership, the power of bequeathing the same being one saus. (S. C.) 66; Cassel's Admr. 523; Osmond's Estate, 161 Pa. St. V. Vernon, 5 Mason (tJ. S. C. C.) 543, 29 Atl. 266. 332, Fed. Cas. No. 2503; Bradish v. "A married woman, with the as- Gibbs, 3 Johns. Ch. (N. Y.) 523; sent Of her husband, may make Anderson v. Miller, 6 J. J. Marsh a will, by way of appointment, of (Ky.) 568, 573. the personal property at her dis- 14 Scammell v. Wilkinson, 2 posal; and such appointment East 552 ; Hodsden v. Lloyd, 2 Bro. being in its nature and character C. C. 534; In re Martin, 3 Sw. & a testamentary document, it shall Tr. 1; In re Richards, L. R. 1 P. be so far respected and treated & D. 156. as such, as to be admitted to 15 Rich V. Beaumont, cited In proof in the ordinary courts of Marlborough v. Godolphin, 2 Ves. probate." — ^Newburyport Bank v. Sen. 64; Southby v. Stonehouse, Stone, 13 Pick. (Mass.) 420. 2 Ves. Sen. 610, 612; Barnes v. i6 Holman y. Perry, 4 Mete. Irwin, 2 Dall. (TJ. S.) 199, 201, 1 (Mass.) 492, 496; Osgood v. L. Ed. 348; Anderson t. Miller, 6 Breed, 12 Mass. 525; Marstou v. 3. J. Marsh (Ky.) 568, 573; Brad- Norton. 5 N. H. 205. ish y. Gibbs, 3 Johns. Ch. (N. Y.) LEGAL DISABILITIES, 399 of such incidents. As to such personal property, she had all the rights of testamentary disposition the same as if she had been a feme sole." The same rule applied to the proceeds from real property settled to her separate use. A married woman could dispose of such separate per- sonal estate by will without the consent of her husband, whether the instrument under which she held gave her the power or not. It was an incident of separate owner- ship,^^ both as to principal and income,^* whether her interest was vested or contingent upon her husband dying before her,^" whether in possession or reversion,^^ or 17 Rich V. Cockell, 9 Ves. Jun. 369, 376; In re Smith's Estate, Clements v. Ward, 35 Ch. Dlv. 689. In Fettlplace v. Gorges, 1 Ves. Jun. 46, Lord Thurlow says: "I have always thought it settled that from the moment In which a woman takes personal property to her sole and separate use, from the same moment she has the right to dispose of It. . . . Upon the cases I have always taken this ground; that personal prop- erty the moment it can be en- joyed, must be enjoyed with all its incidents." isGrigby v. Cox, 1 Ves. Sen. 518; Peacock v. Monk, 2 Ves. Sen, 190; Fettlplace v. Gorges, 1 Ves. Jun. 46, 48; Rich v. Cockell, 9 Ves. Jun. 369, 375; Tappenden v. Walsh, 1 Phillim. 352; Braham v. Burchell, 3 Addams Ecc. 243; Picquet v. Swan, 4 Mason (U. S. C. C;) 455, Fed. Cas. No. 11133; Barnes v. Irwin, 2 Dall. (U. S.) 199, 1 L. Ed. 348; Michael v. Baker, 12 Md. 158, 71 Am. Dec, 593; Buchanan v. Turner, 26 Md. 1; Allen v. Uttle, 5 Ohio 65; West V. West's Exrs., 3 Rand. (Va.) 373. Denied as to realty In Holman v. Perry; 4 Mete. (Mass.) 492, 496; Osgood v. Breed, 12 Mass. 525; Marston v. Norton, 5 N. H. 205. 19 Fettlplace v. Gorges, 1 Ves. Jun. 46; Ashton v. McDougal, 5 Beav. 56; Darkln v. Barkin, 17 Beav. 578; Scales v. Baker, 28 Beav. 91; Humphrey v. Richards, 25 L. J. Ch. 442; Herbert v. Her. bert, I>rec. Ch. 44; Gore v. Knight, 2 Vem. 535; Picquet v. Swan, 4 Mason (U. S. C. C.) 455, Fed. Cas. No. 11133. 20 Bishop T. Wall, 3 Ch. Div. 194. 21 Sturgis V, Corp, 13 Ves. Jun. 190; Headen v, Rosher, 1 McClel. & Y. 89. 400 COMMENTAEIES ON THE LAW OF WILLS. whether the legal estate was in herself or in trustees.^^ Savings out of an allowance for separate maintenance were considered in equity the same as separate estate f^ savings out of pin-money, however, were the husband's.^* §304. The Same Subject: Disability Removed by Husband's Death, and Other Causes. , A married woman whose husband had been banished for life by act of parliament, could make a will as though unmarried.^® The same rule was applied to the wife of a convicted felon transported for life;^® and civil death of a husband for a specific term only apparently removed the wife's disability during such time.^'^ The death of the husband, of course, terminated the married life and the wife then became a feme sole;^^ but a former wiU invalid because executed during coverture was not thereby validated.^* § 305. The Same Subject: No Power to Devise Lands. At common law a married woman could make no devise of any manors, lands, tenements or hereditaments, even 22 Braham v. Burchell, 3 Ad- 26 In re Martin, 2 Roberts 405, dams Ecc. 263; Hall v. Water- s. c. 15 Jur. 686; In re Coward, house, 5 GlfE. 64; Rich v. Cockell, 4 Sw. & Tr. 46. 9 Ves. Jun. 369. See, post, §§ 401, 402, as aftect 23 Brooke v. Brooke, 25 Beav. ing burden of proof. 342; In re Tharp, L. R. 3 Prob Div. 76. 27Atlee V. Hook, 23 L. J. Ch. 776; Ex parte Franks, 1 M. & Sc. Compare: Messenger v. Clark. ^^^ ^_ ^ ^ ^.^^ ^^^ ^^^^ ^^^^ Coombs V. Queen's Proctor; 2 Roberts 547; s. c, 16 Jur. 820. 5 Ex. 388 24 Jordell V. Jordell, 9 Beav. 45; Howard v. Digby, 2 Clark & F. 634, 5 Sim. 330; Barrack v. Me- "Osgood v. Breed, 12 Mass. CuUoch, 3 Kay & J. 114. ^^^• Contra: Sugden's Law of Prop- ^* See, post, §§ 306, 307, and erty, 163. notes; also §§401, 402, as aftect- 25 Countess of Portland v. Prod- i^S burden of proof, gers, 2 Vem. 104. LEGAL DISABILITIES. 401 With the consent of her husband, either to strangers or to himself. If a wife should devise such property to her husband, the devise was void because of the presumption that she did so only because of the constraint of the hus- band ; and even if due proof was offered to the contrary, yet the devise was held void because of the general word- ing of the statute.*" §306. The Same Subject: Effect of Subsequent Marriage of a Feme Sole, or Death of Husband, on Wills Thereto- fore Executed. A devise by a single woman who thereafter married and whose husband survived her, was void, the rule being that it was not only necessary that the testatrix have the ability to make the devise at the time of the execution of the will, but also to have the same power 30 Scammell v. Wilkinson, 2 East 552; Barnes v. Irwin, 2 Dall. (U. S.) 199, 1 L. Ed. 348; Osgood V. Breed, 12 Mass. 525; Fitch v. Brainerd, 2 Day (Conn.) 163. The statute of 34 and 35 Henry vni, ch. 5, section 14, provided: "That -wills or testaments made of any manors, lands, tenements, or other hereditaments, by any woman covert, or person within the age of twenty-one years, Idiot, or by any person of de non sane memory shall not be taken to be good or effectual in law." In order that a husband might enable his wife during marriage to make a will of real estate, he had to join with her in conveying the same to a trustee, for such uses or trusts as might be agreed I Com. on Wills— 26 upon. The husband, however, could only waive his right to an estate by curtesy, but could not remove the disability of a married woman to dispose of her real property against the claims of her heir. — Peacock v. Monk, 2 Ves. Sen. 190; Hodsden v. Lloyd, 2 Bro. C. C. 534, 544. At common law, unless acting under a power of appointment, a married woman could not make a valid will devising real property, although with her husband's as- sent she could make a bequest of her personal estate to stangers. — Nolin V. Pearson, 191 Mass. 283, 77 N. E. 890, 6 Ann. Cas. 658, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605; Bunnell v. Hixon, 205 Mass. 468, 91 N. B. 1022. 402 COMMENTABIES ON THE LAW OP WILLS. at the time of death. And further, if a married woman made such a devise, yet although she survived her hus band the devise was void for the reason that she did not have capacity to make the will at the time of its execution. If, however, in the instance last mentioned, after the death of her husband she did confirm her will, then tlie devise was good by reason of the new declaration of the same ; and if the will was made before marriage and the woman subsequently married and survived her husband, the will was valid the same as if she had never been married.^ ^ § 307. The Same Subject: Present Rule in England: Married Women's Property Act. The Statute of Wills of 1 Victoria did not relieve mar- ried women of their disability to make testamentary dis- positions of their property, nor validate wills executed SI Swinb. Wills, pt. 2, § 9; Coke 534; Forse and Hembling's Case, Utt. lib. 2, ch. 10, § 168, p. 112b. Coke's Rep., pt. 4, 60b, 61b. 'For if a feme sole makes her The rule in the last named will on the first day of May, and "^^es is that the making of the will is but the inception of it, and that it does not take effect until the death of the devisor; that a will is revocable at the wish of the twentieth day of May, and ^j^^ ^^^^^^^^ ^^^ ^^^^ therefore afterwards the woman dies on the ^^en a woman marries her act thirtieth day of May, the devise amounts to a revocation. In is good."— By Manwood. in Plowd, Porse and Hembling's Case, Coke's 343 (Brett v. Rigden). Rep., pt. 4, 60b, 61b, revocation Contra: Cotter v. Layer, 2 P. by marriage and revocation by Wms. 623, 624, wherein it was said reason of subsequent Insanity are that marriage alone by a woman distinguished, the first being by was a revocation of a will there- an act of the testator, the second tofore executed. To the same being an act of God, the first be- effect, George v. Jew, Ambl. 627; ing a revocation of the will, the Hodsden t. Lloyd, 2 Bro. C. C. second not. gives land thereby, and after- wards on the tenth day of May she takes husband, who dies on LEGAL DISABILITIES. 403 while under such disability, even though it was thereafter removed.^2 But thereafter, by the Married Women's Property Act of 1882,*^ additional testamentary powers were granted, and section 8 of the Wills Act of 1837 was impliedly repealed. Under this act of 1882, a married woman may acquire, hold and dispose of by will, or other- wise, any real and personal estate as her separate prop- erty, in the same manner as if she were a feme sole, with- out the intervention of a trustee. The act applied to women married both before and after its commencement, viz., January 1st, 1883; but as to those previously mar- ried, it aflEected only property rights acquired subsequent to such date. Separate property was defined as all real and personal property which — subsequent to the act — should belong to a married woman at the time of mar- riage or be acquired by or devolve upon her after mar- riage, including any wages, earnings, moneys or property acquired in any trade or employment, or through literary, artistic or scientific sMU. Under the construction of the above statute, the will of a woman executed while mar- ried was not effectual, unless re-executed after she became single, to dispose of property acquired after the termina- tion of coverture.^* But by a later act*^ it is provided that 32 Statute of 1 Victoria, ch. 26, the act) was to prevent a married § 8, reads: "That no will made by woman's property from becoming any married woman shall be valid, her husband's property." — In re except such a will as might have Harkness and Allsopp's Contract, been made by a married woman (1896) 2 Ch. 358. before the passing of this act." 34 Willock v. Noble, L. R. 7 H. See, also. Price v. Parker, 16 L. 580; In re Price, 28 Ch. Div. Sim. 198; Trimmell v. Fell, 16 709. Beav. 537; Willock t. Noble, L. 35 Statute of 56 and 57 Victoria, R. 7 H. L. 580. ch. 63, amending the Married 33 Statute 45 and 46 Victoria, Women's Property Act of 1882. ch. 75, §§ 1, 2: The "object (of The Married Women's Property 404 COMMENTARIES ON THE LAW OF WILLS. section 24 of the Statute of Wills of 1 Victoria shall apply to the will of a married woman made during coverture, whether she is or is not possessed of or entitled to any- separate estate at the time of execution; and it is not required that such will shall be re-executed. The section above referred to makes a will speak as of the date of the death of the testator, and therefore the rule now is that the will of a married woman passes her separate property acquired after a dissolution of the marital relation. § 308. The Common Law Rule in the United States as to the Disabilities of Married Women. The modem tendency in the United States is to remove the disabilities of married women as to acquiring, holding and disposing of property and to place them on an equal footing with their husbands. There is a distinction, how- ever, between transferring property by deed and dispos- Act of 1907, Stat. 7 Edward VII, rence of her husband. The above ch. IS, § 1, provides that a mar- amendment reverses such rule. ried woman may, without her hus- The statute of 43 George III, ch. band, dispose of or join in dispos- 108, authorizing devises and be- ing of real and personal property quests of lands and chattels, to a held by her solely or jointly with limited amount, for the purpose any other person as trustee or of building and repairing personal representative, in like churches, etc., excluded married manner as If she were a feme women from the operation of the sole. In the case of Harkness and act. This disability was not re- AUsopp's Contract, (1896) 2 Ch. moved by the subsequent Wills 358, It had been held 'that the Act of 1837 or Married Women's Married Women's Property Act of Property A<;t of 1882, it being held 1882 did not allow a woman mar- that the general statute did not ried since that act, who was repeal the act imposing a special trustee for the sale of real estate, disability. — ^In re Smith's Estate, to convey the same to a pur- Clements v. Ward, 35 Ch. Div. chaser unless with the concur- 589. LEGAL DISABILITIES. 405 ing of it by will. A statute which merely authorizes a married woman to hold, manage and convey property free from the control of her husband does not by impli- cation extend to her the power of transmitting such prop- erty by will, but such right may of course be expressly granted.^® The rules of the common law were accepted in this coimtry by the original colonies and have con- tinued, generally, to be effective except as altered by statute. It will be presumed, in absence of proof to the ' contrary, that the common law prevails in all territory I thereafter becoming a part of these United States which ,' was settled by the English or their American descendants. 1 Where the government, however, was established before annexation, as in the case of Texas, the presumption does not apply, Texas having been originally part of the pos- sessions of Spain.*'' Louisiana is another exception, its rules having been adopted from the civil law.^* And in some of the "Western and Southern states, notably Wash- ington, Idaho, California, Nevada, Arizona, New Mexico, Texas and Louisiana, the rule of community property of husband and wife, adopted from the civil law of Spain, prevails. The right of a husband or a wife, however, to a share or all of the community property after the death of the other, merely imposes a limitation upon the right to dispose of the same by will.*® The adoption of the plan 36 Harker t. Elliott, 3 Har. same rule applies to Indian terri- (Del.) 51; Cain v. Bunkley, 35 tory. — Davison v. Gibson, 56 Fed. Miss. 119; Foote v. Nickerson, 70 443, 5 C. C. A. 543. N. H. 496, 54 L. R. A. 554, 48 Atl. 38 Reynolds v. Swain, 13 La. 3088; Compton v. Pierson, 28 N. 193, 194. J. Eq. 229; Barnes v. Underwood, 39 Payne v. Payne, 18 Cal. 291; 47 N. Y. 351, 353. Box v. Word, 65 Tex. 159; Mayo 37 Castleman v. Jeffries, 60 Ala. v. Tudor's Heirs, 74 Tex. 471, 12 380; Norris v. Harris, 15 Cal. 226; S. W. 117; In re Hill's Estate, e Flato V. Mulhall, 72 Mo. 522. The Wash. 285, 33 Pac. 585. 406 COMMENTARIES ON THE LAW OF WILLS. of community or partnership property of the husband and wife, unless expressly so provided in the statute, would not affect or alter the common law rule as to the disability of married women to make testamentary dis- positions of their estates. §309. Construction of Statutes Removing the Disabilities of Married Women. In the United States the disability of married women to devise or bequeath real or personal property has to a large extent been removed by statute. The effect of such laws is to grant to married women rights which they did not formerly possess, not to limit or restrict testamentary powers theretofore enjoyed;*" and since such statutes alter the common law rule, they are strictly construed.*^ They, however, must be read in connection with other laws on the same subject and thus, where a male or female under a prescribed age is not authorized to make a will, the fact of marriage does not confer such power.*^ Where the law enables a married woman to dispose of her real and personal property without the consent of her hus- band, the common law restriction that a devise to her husband even with his consent is void, does not apply. The reason of the common law rule was that the wife and the husband were considered as one and that any act of a wife was accomplished under the dominion of the hus- band ; thus it was considered as though it was a gift by 40 Buchanan v. Turner, 26 Md. (Del.) 51; Compton v. Pierson, 28 1; Beach v. Manchester, 2 Cush. N. J. Eq. 229. (Mass.) 72; Wakefield v. Phelps, 42 Scott v. Harkness, 6 Idaho 37 N. H. 295. 736, 59 Pac. 556; Zimmerman v. See, post, §§401, 402, as to bur- Schoenfeldt, 3 Hun (N. Y.) 692; den of proof. Fisher v. Kimball, 17 Vt. 323, 328. 41 Barker v. Elliott, 3 Har. LEGAL DISABILITIES. 407 the husband to himself,*^ although a bequest of personalty to a stranger, with the consent of the husband, was valid." §310. Limitation Upon the Right of a Husband or Wife to Dispose of Property in Which the Law Gives the Other an Interest. Under the modern doctrine obtaining in the United States, where the statute enables the wife to make a testamentary disposition of her real or personal property without the consent of her husband, she may dispose of the same to either her husband or to strangers, her will in either instance being equally valid. The statute, how- . ever, may limit the right of a married woman to dispose of her property only to those other than her husband,*^ and may provide that no such disposition shall affect his rights, such as curtesy or interest in community property. But even though the statute may be silent on the subject and may authorize a married woman to make any testa- mentary disposition of her real and personal estate which she may desire, yet without her husband's consent she 43 Barnes v. Irwin, 2 Dall. (U. a married woman tias the same S.) 199, 202, 1 L. Ed. 348 ; Hood v. power of disposing of property by- Archer, 1 McCord L. (S. C.) 225. will as has her husband; yet the 44Willock V. Noble, L. R. 7 H. law limits both the husband and L. 580; Burton v. Holly, 18 Ala. wife to a testamentary disposition 408; Osgood v. Breed, 12 Mass. of but one-half of his or her 525; Sanborn v. Batchelder, 51 N. estate. — Wells v. Cay wood, 3 Colo. H. 426; Osmond's Estate, 161 Pa. 487; Logan v. Logan, 11 Colo. 44, St. 543, 29 Atl. 266; Hood v, 17 Pac. 99; Schuler v. Henry, 42 Archer, 1 McCord L. (S. C.) 225; Colo. 367, 14 L. R. A. (N. S.) 1009, Fisher v. Kimball, 17 Vt. 323. 94 Pac. 360; Deutsch v. Rohlflng, 45 Estates by curtesy and in 22 Colo. App. 543, 126 Pac. 1123; dower do not exist in Colorado, Rev. Stats. Colo., (1908) § 7070. and under the laws of that state 408 COMMENTARIES ON THE LAW OP WILLS. can not cut off Ms estate by curtesy, nor dispose of his interest in the community property against his will. In this regard, however, the husband is under the same disa- bility as the wife.** § 311. The General Principles Prevailing in the United States as to the Rights of Married Women. The statutes regarding the rights of married women to make testamentary dispositions of their estates are not uniform and are subject to frequent modifications. The particular statute involved should be consulted in all cases. But the general rule is that the common law prin- ciples control except where altered or«repealed by statute, and that a married woman can make a testamentary dis- position of her estate only to the extent and in the partic- - ular manner allowed by law. In this connection, however, the distinction must be kept in mind between limitations upon testamentary power and restrictions as to particular property which may not be willed. If a married woman has the general right of devising and bequeathing her estate within certain limits, her will disposing of the 46 Cooper V. Macdonald, 7 Ch. 495; Matter of Mitchell (In re Div. 288; Silsby v. Bullock, 10 Al- Curtis' Will), 61 Hun (N. Y.) 372, lei (Mass.) 94; Waters v. Her- 16 N. Y. Supp. 180; Oatman v. both, 178 Mo. 166, 77 S. W. 305; Goodrich, 15 Wis. 589. Hayes v. Seavey, 69 N. H. 308, 46 Consent of husband, such as Atl. 189; Vreeland's Exrs. v. joining his wife in the execution Ryno's Bxr., 26 N.J. Eq. 160; of a deed to the property, cuts Clarke's Appeal, 79 Pa. St. 376; off his estate by curtesy.— Estate of Teacle, (Appeal of McBride's Estate, 81 Pa. St. 303. Cooke) 132 Pa. St. 533, 19 Atl. As to limitation of right of 274; Estate of Rouse v. Directors either spouse to dispose of such of Poor, 169 Pa. St. 116, 32 Atl. property, see, ante, §§ 251, 252. 541; Cunningham v. Cunningham, As to consent of husband or 30 W. Va. 599, 5 S. E. 139. wife and its effect, see, ante, Compare: Pool v. Blakie, 53 111. §§ 253, 254. LEGAL DISABILITIES. 409 same is valid, even thougli she attempts to transfer prop- erty contrary to some legal inhibition. Thus a deAn.se by a wife of realty in which her husband has a community interest or an estate by curtesy, is valid except as to such property; and the husband has the right to elect to take under the provisions of the will, or demand the interest which would be his as in the event of intestacy.*'^ 47 "Ste (a married woman) may dispose of her property by will; and the law places both husband and wife upon the same level with reference to the disposition of property by will." The only re- striction upon her absolute right to dispose of her estate by will was the one in favor of her hus- band, and that had no more to do with testamentary ability than had the corresponding limitation upon the right of the husband to dispose of his property by will. In neither case did the restriction affect the validity of the will; but it operated only upon the disposi- tive provisions thereof, in case the spouse of the testatrix or tes- tator survived, and did not con- sent to the win. — ^Deutsch v. Rohl- flng, 22 Colo. App. 543, 126 Pac. 1123; citing Schuler v. Henry, 42 Colo. 367, 14 L. R. A. (N. S.) 1009, 94 Pac. 360. By the Massachusetts Rev. Laws, ch. 135, i 1, a married woman, if of full age and sound mind, can make a will with the same effect as if the marital rela- tion did not exist, and by § 16, where no decree in her favor for separation has been entered under E,ev. Laws, ch. 153, § 36, the sur- viving husband within one year after probate may waive the will, and claim such portions of the estate as he would have taken if she had died Intestate. The legis- lative purpose was to confer upon the surviving husband, not only a new, but an equal right with a surviving widow, to waive the will of the deceased spouse, and par- ticipate in the distribution of the estate as a statutory heir. The validity of the will of the testa- trix was not dependent upon the husband's consent, but his act was only a waiver of his statutory rights as they then existed. Be- fore the will took effect the statute was repealed, and under Rev. Laws, ch. 140, § 3, cl. 3, he became entitled, if she died in, testate, to a much larger interest in her real and personal property. It therefore was not within her testamentary power at the time of her decease to deprive him of the right by proper proceedings, to claim and receive the same share or interest which he would have taken upon intestacy. — Bun- nell V. Hixon, 205 Mass. 468, 91 N. E. 1022. See, also. Rev. Laws, 410 COMMENTARIES ON THE LAW OP WILLS. §312. Civil Death Generally. A person may be naturally alive, yet civilly dead. At common law civil death resulted where one entered a monastery and became a professed monk, abjured the ch. 135, §§ 4, 16; Burroughs v. Nutting, 105 Mass. 228; Johnson V. Williams, 152 Mass. 414, 25 N. E. 611; Kelley t. Snow, 185 Mass. 288, 70 N. E. 89. The law of Tennessee in regard to the power of a married woman to dispose of her personal estate by will is well settled. She has the absolute power to dispose of personal property, held as a sep- arate estate, without the consent of her husband. It is otherwise as to her general estate. In order to make a valid will of it, the hus- band must consent to the partic- ular will made. His consent may be written or verbal, express or Implied, but it must amount to a waiver of his marital right to the property disposed of. It may be given in the lifetime of the wife, or after her death, and after prp- bate of the will it is irrevocable and binding upon him. — Woods v. Shelton, 126 Tenn. 607, 150 S. W. 856. See, also, George v. Bussing, 15 B. Mon. (54 Ky.) 558; Cutter v. Butler, 25 N. H. 343, 57 Am. Dec. 330; Van Winkle v. Schoonmaker, 15 N. J. Eq. 384; Kurtz v. Saylor, 20 Pa. St. 205, 209. As to limitation of right of either spouse to dispose of prop- erty in which law gives the other an interest, see, ante, §§ 251, 252. As to consent of husband or wife to such a disposition, and its effect, see, ante, §§ 253, 254. For cases involving the laws of various states regarding the right of married women to will their estates, see, generally, Barnes v. Irwin, 2 Dall. (U. S.) 199, 1 L. Ed. 348; Hamilton v. Rathbone, 175 V. S. 414, 44 L. Ed. 219, 20 Sup. Ct 155; Mosser v. Mosser's Exr., 32 Ala. 551; Deutsch v. Rohlfing, 22 Colo. App. 543, 126 Pac. 1123; Rodney v. Bur- ton, 4 Boyce (27 Del.) 171, 86 AU. 826; Matter of Tuller's Will, 79 111. 99, 22 Am. Rep. 164; Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; George v. Bussing, 15 B. Mon. (54 Ky.) 558; Johnson v. Johnson, 15 Ky. Law Rep. 587, 24 S. W. 628; SchuU v. Murray, 32 Md. 9; Kelley v. Snow, 185 Mass. 288, 70 N. E. 89; Bunnell v. Hixon, 205 Mass. 468, 91 N. E. 1022; Kelly v. Aired, 65 Miss. 495, 4 So. 551; Waters v. Herboth, 178 Mo. 166, 77 S. W. 305; Cutter v. Butler, 25 N. H. 343, 347, 57 Am. Dec- 330; Van Winkle v. Schoonmaker, 15 N. J. Eq. 384; Matter of Folwell's Estate, 67 N. J. Eq., 570. 59 Atl. 467; Wallace v, Bassett, 41 Barb. (N. Y.) 92; Kurtz v. Saylor, 20 Pa. St 205, 209; Wooda v. LEGAL DISABILITIES. 411 realm, or was outlawed.** A monk was accounted civiliter mortuus; upon entering the monastery he might make his testament and appoint his executor, otherwise his estate could be administered as if he had died intestate. This disability, however, was banished after the Reforma- tion.** The practice once existed in England that if one who had committed a felony, not a sacrilege, sought refuge in a parish church, he might thereafter confess and take an oath to abjure the realm forever, in which event he became attainted with felony and had to leave the kingdom within forty days to the destination desig- nated by the coroner. This custom was early abolished.'*'' Banishment by transportation was authorized by the stat- utes of 4 George I, ch. 2, and 6 George I, ch. 23, of any person convicted of grand or petit larceny or of other crimes where the accused was not entitled to the benefit of clergy. This was the first legislation authorizing transportation as a punishment, but it had theretofore been practiced."*^ §313. Outlawry Defined. Outlawry was the punishment meted out in both civil and criminal suits to one who refused "to be amenable to, or abide by, the justice of that court which had lawful authority to call him before it." It was deemed an act of rebellion against the state. Originally the process of Shelton, 126 Tenn. 607, 150 S. W. bo Statute 21 James 1, ch. 28; 856; Dillard v. Dillard's Exrs., 1 Bl. Com. *132; Rex v. Portlng- (Va.) 21 S. B. 669. ton, 1 Salk. 162; Newsome v. 48 1 Bl. Com. **132, 133; Coke Bowyer, 3 P. Wms. 38, n. Litt. 132a, 133; Bacon's Abr. (Bou- 6 1 Bacon's Abr. (Bouvier Ed.), Tier Ed.) Tit Outlawry. Tit. Felony, H.; Gould, J., in 2 49 1 Bl. Com. **132, 133; Canter- H. Bl. 223. bury's Case, 2 Coke 48b. 412 COMMENTABIES ON THE LAW OF WILLS. outlawry lay only in cases of treason and felony, but it was later extended to trespass, and subsequently to debt, detinue, covenant, replevin, and such actions. ^^ §314. Outlaws Denied the Right of Making Testamentary Dispositions. At common law, a person outlawed was not under the protection of the prince; in fact he was beyond the aid of law. All his goods and chattels and the issues and profits of his real estate were forfeited to the crown. An outlaw, from whatsoever cause, was incapable of bequeathing personal property while such outlawry con- tinued. During such period he could possess no person- alty, and therefore had none to dispose of.''* If outlawed because of treason, or a felony, there was an attainder of blood and an absolute forfeiture of all the convicted party's estate, real and personal ; if for treason, the lands went to the king, no matter to whom holden ; if for felony, they escheated to the lord of whom they were immediately bolden. Consequently such outlaws could neither devise nor bequeath real or personal property. Pardon, how- ever, removed the disability.^* A felo de se, one who wilfully destroyed himself, was guilty of murder and for- 52 Bacon's Abr. (Bouvler Ed.), Blackstone, contrary to the Tit. Outlawry, A; Reeves' -Hist, of other citations above, holds that the Law, vol. I, 483, 484, vol. 11, in the cases ot petit treason and 439; 4 Bl. Com. *319. felony, the profits of lands are 53 Swinburne Wills, pt. 2, § 21; forfeited for life, and after the 2 Bl. Com. *499; Bacon's Abr. death of the guilty party, his real (Bouvier Ed.), Tit. Outlawry, D. estate in fee simple goes to the 1. crown for a year and a day. — 2 54 Bacon's Abr. (Bouvier Ed.), Bl. Com. *385. But, see, 4 Bl. Tit. Outlawry, D. 1, 2, and D. 2. 2; Com. **387, 388, regarding Bwlnbume Wills, pt 2, § 12; 4 Bl. attainder as an immediate conse- Com. '**381, 382, 385. quence. LEGAL DISABILITIES. 413 feited his chattels, real and personal, upon self murder being found by some inquisition, but his blood was not corrupted, nor did his lands escheat.''® § 315. Attainder and Corruption of Blood. Attainder was an immediate consequence of a judgment of death for treason or felony, the result being corruption of blood and forfeiture of all real and personal prop- erty.^® One attainted could neither inherit real property from his ancestors, hold that already in his possession, nor transmit it to his heir. His posterity could inherit no property the title to which was traced through him.^^ §316. The Same Subject: Statutory Regidations in England. The rule as to attainder and corruption of blood was relaxed and finally, in effect, abolished. By the statute of See, also, Swinb., pt. 2, § 13. Tit. Outlawry, D. 1, & D. 2; 4 Bl. "Such, persons as are intestable Com. **381, 382. for want of liberty or freedom of 57 4 Bl. Com. *388. will, are, by tbe civil law, of va- It has been said in some cases rious kinds; as prisoners, cap- that attainder did not deprive the tives, and the like. But the law one attainted of the right to de- of England does not make such vise his lands held in possession persons absolutely intestable; but or to take lands by purchase or only leaves it to the discretion descent, but that such transfers of the court to judge, upon the were good against all the world consideration of their particular except the crown and that there circumstances or duress, whether was no forfeiture until office or no such persons could be sup- found. — Doe v. Pritchard, 5 Barn, posed to be liberum animum test- & Ad. 765; La Chapelle v. Burpee, and!.— 2 Bl. Com. *497. As to the 69 Hun (N. Y.) 436, 23 N. Y. Supp. rule of the civil law, see Godolph, 453; Avery v. Everett, 110 N. Y. pt. 1, ch. 9; Swinburne Wills, pt. 317, 325, 6 Am. St. Rep. 368, 1 L. 2, § 8. R. A. 264, 18 N. E. 148; Stephanl S5 Bacon's Abr. (Bouvier Ed.) v. Lent, 30 Misc. Rep. 346, 63 N. Tit. Felo De Se, c. Y. Supp. 471. B6 Bacon's Abr. (Bouvier Bd.> 414 COMMENTAEIES ON THE LAW OP WILLS. 33 and 34 Victoria, ch. 28, it is provided that no forfeit- ure, escheat or corruption of blood shall be caused by conviction or proof of treason, felony, or felo de se. Those, however, sentenced to death or penal servitude for treason or felony are, until death, bankruptcy, completion of sentence, or pardon, civilly dead. The act provides for the appointment of an administrator to take all the estate of the convict, lease, sell or mortgage the property; and fully administer the same during the period of disa- bility. Upon the termination of such disability, the prop- erty, including all proceeds, goes to the convict, his heirs or personal representatives. Although an alienation of property by deed is prohibited, yet since a will passes property only after the death of the testator, the convict is free to devise and bequeath his estate.^® B8 statute of 33 and 34 Victoria, ch. 23 (July 4, 1870), section 1, reads as follows: "From and after the passage of this act, no con- viction, verdict, inquest, confes- sion or judgment of or for any treason or felony or felo de se shall cause any attainder or cor- ruption of blood, or any forfeiture or escheat, providing that nothing in this act shall effect the law of forfeiture consequent on outlaw- ry." Section 8 of the above statute provides that no person condemned to death or to penal servitude for treason or felony, can bring any action at law or suit in equity for the recovery of prop- erty, or alienate any property or make any contract during the time that the judgment is in effect. The act provides that the Crown may appoint administra- tors of the convict's property who administer the same, and that it reverts to the convict or his rep- resentatives upon completion of his sentence or upon his death. The above act provides that it should not extend to Scotland. By the statute of 2 Henry V. ch. 7, the lands and chattels of those convicted of heresy were forfeited to the Crown. But this law was repealed by the statute of 1 Eliza- beth, ch. 1, section 15. Statute of 9 George IV, ch. 31 (A. D. 1828), secUon 2, provided that what, prior to the statute amounted to petit treason, should thereafter be deemed to be mur- der only. The Statute of 30 George III, ch; 48 (A. D. 1790), related to women LEGAL DISABILITIES. 415 § 317. Bills of Attainder and Corruption of Blood in the United States: Constitutional Provision. Outlawry, in the common law sense, does not now obtain in the United States.^® Previous to the adoption of the Constitution of these United States, bills of attainder and confiscation of property might be had unless pro- hibited by the constitution of a state.®" But by the fed- eral constitution, the various states were prohibited from passing any bill of attainder.*^ Such a bill "may affect the life of an individual, or may confiscate his property, or both."*^ Congress has the power "to declare the pun- ishment for treason, but no attainder of treason shall convicted of high treason or petit treason and provided that upon conviction of such crimes or of abetting, procuring, or counseling the same, in addition to the pen- alty of death, they should also be subject to the forfeitures and cor- ruption of blood as they would have been before the passage of the act. Statute of 54 George III, ch. 145 (A. D. 1814), provided that no attainder for felony which should take place after the passage of the act, except in cases of high treason, petit treason, or mur- der, or of abetting, procuring or counseling the same, should ex- tend to the disinheriting of any heir or to the prejudice of any right or title of any person other than the right or title of the offender during his or her natural life; and that it should be lawful for every person to whom a right or interest in lands, tenements or hereditaments, after the death of such offender, should or might have appertained if no such at- tainder had been, to enter into the same. 59 Respublica v. Doan, 1 Dall. (U. S.) 86, 1 L. Ed. 47; Respub- lica v. Steele, 2 Dall. (U. S.) 92, 1 L. Ed. 303; Dale County v. Gun- ter, 46 Ala. 118, 138; Drew v. Drew, 37 Me. 389, 391; St. Louis V. Toney, 21 Mo. 243, 256; Vas- quez V. Ewing, 42 Mo. 247. 60 Respublica v. Chapman, 1 Dall. (U. S.) 53, 59, 1 L. Ed. 33; Copper V. Telfair, 4 Dall. (U. S.) 14, 1 L. Ed. 721. 61 Const. U. S. Art. 1, § 10. 62 Fletcher v. Peck, 6 Cranch (U. S.) 87, 138; 3 L. Ed. 162, 178. See, also, Cummlngs v. Mis- souri, 4 Wall. (U. S.) 277, 18 L. Ed. 356; Kilboum v. Thompson, 103 U. S. 168, 182, 26 L. Ed. 377; Cozens v. Long, 3 N. J. Law 764; Green v. Shumway, 39 N. Y. 418, 416 COMMENTARIES ON THE LAW OP WILLS. work corruption of blood, or forfeiture of property ex- cept during the life of the person attainted."^* § 318. Civil Death Because of Conviction of a Felony. There is no federal constitutional inhibition against the states of the Union passing general laws which will deprive a person convicted of a felony of his civil rights, and in some of the states such laws have been enacted. They do not violate the federal constitution, the limita- tion being that there must be no confiscation of property or corruption of blood. As to the punishment for treason, that is fixed by Congress. In California, for instance, it is provided that a person sentenced to imprisonment in the state's prison for life is thereafter deemed civilly dead, while imprisonment for a term less than life suspends the civil rights of the convict during such period.®* All forfeitures to the state, in the nature of a deodand, or where the person shall flee from justice, are abolished.®^ Under statutes such as the above, it is held that civil death imparts a depriva- 430; People v. Hayes, 140 N. Y. 9, p. 211, prescribes death as the 484, 37 Am. St. Rep. 572, 23 L. R. penalty for treason. A. 830, 35 N. E. 951. 64 Cal. Civ. Code, §§ 673, 674; 63 Const. U. S. Art. 3, § 3. -^^^^^^ „f Donnelly. 125 Cal. 417, See, also. Confiscation cases, 1 „^ ^^ g^_ ^^ p^^ ^^ Woods (U. S. C. C.) 221, Fed. Cas. ^, ,„„„ «5 Cal. Civ. Code, § 677; Harlan No. dU97. "An act of Congress which pro- ^- Schulze, 7 Cal. App. 287, 294, posed to adjudge a man guilty of 9* P^c. 379; Estate of Donnelly, a crime and Inflict the punishment 125 Cal. 417, 73 Am. St. Rep. 62, would be conceded by all think- 58 Pac. 61. Ing men to be unauthorized by A convict sentenced for life anything in the constitution." — may be a witness In a criminal Kilbourn v. Thompson, 103 TJ. S. action and may make and ac- 168, 182, 26 L. Ed. 377, 384; Act knowledge a sale or conveyance of Congress, 1 TJ. S. Stats. L., ch. of property. His person is also LEGAL DISABILITIES. 417 tion of all rights, the exercise or enjoyment of which depends on some provision of positive law. The right of inheritance was held to be such a right, and one impris- oned under sentence for life was held not entitled to in- herit any portion of the estate of his father who died during such imprisonment.**^ Such statutes, however, enacted by a state legislature, apply only to those con- victed and sentenced by the state courts; they have no application to those under sentence by the federal courts where such statutes do not obtain, and in the absence of legislation depriving a convict of civil rights, no disa- bility exists.®^ protected. — Cal. Civ. Code, |§ 675, 676. The rights of creditors of a person sentenced to imprisonment for life are not suspended. — Coffee V. Haynes, 124 Cal. 561, 71 Am. St. Rep. 99, 57 Pac. 482, criti- cising Estate of Nerac, 35 Cal. 392, 396, 95 Am. Deo. 111. To the same effect. Gray v. Gray, 104 Mo. App. 520, 79 S. W. 505; Guarantee Co. of North America v. First National Bank, 95 Va. 480, 28 S. E. 909. ' 66 Estate of Donnelly, 125 Cal. 417, 73 Am. St. Rep. 62, 58 Pac. 61. See, also, Avery v. Everett, 110 N. Y. 317, 332, 6 Am. St. Rep. 368, 1 L. R. A. 264, 18 N. E. 148. Kan. Code Crim. Pro. § 337, provides that the estate of one under sen- tence of imprisonment for life shall be administered and dis- posed of in all respects as if he were naturally dead. This does not include those sentenced to I Com. on Wills— 27 death. — Gray v. Stewart, 70 Kan. 429, 109 Am. St. Rep. 461, 78 Pac. 852. See, also. Smith v. Becker, 62 Kan. 541, 53 L. R. A. 141, 64 Pac. 70, as to the effect of the Kansas Statute. The effect of the Missouri Statute is that the property of a convicted felon is not forfeited, but he is deprived of all dominion over the same during his impris- onment. If sentenced for life, it passes to his heirs or legal repre- sentatives. — ^Williams v. Shackle- ford, 97 Mo. 322, 11 S. W. 222. CTPresbury v. Hull, 34 Mo. 29; Platner v. Sherwood, 6 Johns. Ch. (N. y.) 118. ' Imprisonment for life does not in itself constitute civil death. — Cannon v. Windsor, 1 Houst. (Del.) 143, 144; Willingham v. King, 23 Fla. 478, 2 So. 851; Fra- zer V. Fulcher, 17 Ohio 260; Com- monwealth V. Clemmer, 190 Pa. 418 COMMENTAEIES ON THE LAW OP WILLS. § 319. Disabilities of Aliens : Eniflish Rule. Every nation has the inherent and natural right to prescribe and enforce rules and regulations as to aliens acquiring, holding or disposing of property. As to real property, the rule of the common law was that aliens could not hold lands either by purchase, de- vise or inheritance; nor could they devise lands, since they were incapable of holding. They could neither in- herit real property nor pass the same to their heirs ; in fact, they were held to have no inheritable blood. The reason was partly a matter of national policy, also the holding of real property by one owing no allegiance to the crown was contrary to the principles of feudalism.** The rule was gradually relaxed under subsequent stat- utes.*® The prohibition against aliens taking land by deed or devise or making testamentary dispositions of the same, was not absolute, but the crown was entitled, by inquest of office, to seize such lands either in the hands of the alien or of the devisee. Until office found the alien could remain in possession.'^" But an alien could not take lands by descent, since title in such manner vests by operation of law and the law would not vest St. 202, 42 Atl. 675; Kenyon v. ments, or hereditaments to him Saunders, 18 R. I. 590, 26 L. R. A. ahd his heirs, albeit he can have 232, 30 Atl. 470; Davis v. Laning, no heirs, yet he is of capacity to 85 Tex. 39, 34 Am. St. Rep. 784, take a fee simple but not to hold. 18 L. R. A. 82, 19 S. W. 846; Balti- For upon an office found, the king more v. Chester, 53 Vt. 315, 38 shall have it by his prerogative, Am. Rep. 677. of whomsoever the land is holden. 68 2 Bl. Com. **249, 250. And so it is if the alien doth pur- 69 11 & 12 William III, ch. 6; 25 chase land and die, the law doth George II, ch. 39. cast the freehold and inheritance 70 1 Bl. Com. **372, 373. upon tie king."— Coke Litt. lib. "If an alien Christian or infidel 1, ch. 1, § 1, p. 2b. purchase ,. houses, lands, tene- LEGAL DISABILITIES. 419 title to lands in one prohibited from holding themJ^ The rule was materially modified lay the statute of 7 and 8 Victoria, ch. 66, which, however, referred only to alien friends/^ But by the naturalization act of 1870, the rule of the common law was abolished and since that time, 71 2 Bl. Com. *249. "If an alien cometh into Eng- land, and there hath issue two sons, who are thereby natural bom subjects; and one of them purchases land and dies; yet neither of these brethren can be heir to the other. For the com- mune vinculum, or common stocls of their consanguinity, is the father; and as he has no inheri- table blood in him, he could com- municate none to his sons; and when the sons can by no possi- bility be heirs to the father, the one of them shall not be heir to the other."— 2 Bl. Com. *250, re- ferring to the rule laid down in Coke on Littleton. This rule was overturned and it was held the law that one of such brothers could inherit from the other, the descent from one to the other be- ing held an immediate descent. — 2 Bl. Com. *226; CoUingwood v. Pace, 1 Keble 65. This last named case is reviewed at length in Levy v. M'Cartee, 6 Pet. (U. S.) 102, 8 L. Ed. 334 and McGregor v. Comstock, 3 N. T. 408. See, also. Doe v. Acklam, 2 B. & C. 779; Doe v. Jones, 4 T. R. 300; Doe v. Clarke, 1 U. C. Q. B. 37; Her v. Elliott, 32 TJ. C. Q. B. 434. 72 Statute of 7 and 8 Victoria, ch. 66, § 4, reads as follows: "That from and after the passing of this act (August 6, 1844) every alien, being the subject of a friendly State, shall and may take and hold, by purchase, gift, be- quest, representation, or other- - wise, every species of personal property, except chattels real, as fully and effectually to all intents, and purposes, and with the same rights, remedies, exemptions, priv- ileges, and capacities, as if he, were a natural-bom subject of the . United Kingdom." Sections 3 and 5 of the above act read as follows: § 3. "That every person now born, or here- after to be born, out of her Mar jesty's dominions, of a mother be- ing a natural-bom subject of the United Kingdom, shall be capable of taking to him, his heirs, execu- tors, or administrators, any estate, real or personal, by devise or pur- chase, or inheritance of succes- sion." § 5. "That every alien now residing in, or who shall hereafter come to reside in, any part of the United Kingdom, and being the subject of a friendly state, may, by grant, lease, demise, assign- ment, bequest, representation, or 420 COMMENTARIES ON THE LAW OF WILLS. in England, all aliens, whether friends or foes, are allowed to acquire, hold and dispose of real and personal property in the same manner as natural born British subjects.'^* As to personal property, the common law rule was that alien friends could acquire or dispose of such property by will; alien enemies, however, had no rights or privi- leges except as allowed by the crownJ* otherwise, take and hold any lands, houses, or other tenements, for the purpose of residence or for the occupation by him or her, or his or her servants, or for the purpose of any business, trade, or manufacture, for any term of years, not exceeding twenty-one years, as fully and effectually to all intents and purposes, and with the same rights, remedies, ex- emptions, and privileges, except the right to vote at elections for members of Parliament, as if he were a natural-bom subject of the United Kingdom." The statute of 7 and 8 Victoria, ch. 66, by section 15 did not take away any rights of aliens there- tofore existing, and by § 16 pro- vided that any woman married or who should be married to a natu- ral-born or naturalized British subject should be deemed and taken to be herself naturalized. 73 Statute of 33 and 34 Victoria, ch. 14 (May 12, 1870), § 2, reads in part as follows: "Real and per- sonal property of every descrip- tion may be taken, acquired, held, and disposed of by any alien in the same manner in all respects as by a natural-born British sub- ject; and a title to real and per- sonal property of every descrip- tion may be derived through, from, or in succession to an alien, in the same manner In all re- spects as through, from, or in suc- cession to a natural-born British subject." The section provides, however, that it confers no rights on aliens to hold real property out of the United Kingdom, nor quali- fies aliens to hold office, nor en- titles them to any rights and priv- ileges of British subjects except with respect to property; neither does the section affect any estate or interest in real or personal property in pursuance of any dis- position or devolution by law be- fore the passing of the act. It will be noted that the above act included all aliens, and was not confined to alien friends as was the statute of 7 and 8 Victoria, ch. 66. 74 1 Bl. Com. *372; 2 Kent Com. **62, 63; Calvin's Case, 7 Coke 1; Fourdrin v. Gowdey, 3 Myl. & K. 383. LEGAL DISABILITIES. 421 §320. The Same Subject: American Rule. The rule of tlie common law became the rule of the United States and, except where modified by treaty or by statute, prevents an alien from inheriting real prop- erty ;^^ and an alien, having no inheritable blood, can not have an heir to whom his real property will descend 75 Brlgham v. Kenyon, 76 Fed. 30; Pacific Bank v. Hannah, 90 Fed. 72, 32 C. C. A. 522; Dawson V. Godfrey, 4 Cranch (U. S.) 323, 2 L. Ed. 634; Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 L. Ed. 453; reaffirmed 1 Wheat. (U. S.) 304, 4 L. Ed. 97; Orr v. Hodgson, 4 Wheat (U. S.) 453, 4 L. Ed. 613; McCreery v. Somerville, 9 Wheat. (U. S.) 354, 6 L. Ed. 109; Taylor V. Benham, 5 How. (U. S.) 233, 12 L. Ed. 130; McKinney v. Savlego, 18 How. (U. S.) 235, 15 L. Ed. 365; Phillips v. Moore, 100 V. S. 208, 25 L. Ed. 603; Hauensteia v. Lynham, 100 U. S. 483, 25 L. Ed. 628; Sullivan v. Burnett, 105 U. S. 334, 26 L. Ed. 1124; Hanrick v. Patrick, 119 U. S. 156, 30 L. Ed. 396, 7 Sup. Ct. 147; Geofroy v. Riggs, 133 U. S. 258, 265, 33 L. Ed. 642, 10 Sup. Ct. 295; Blythe v. Hinckley, 180 U. S. 333, 45 L. Ed. 557, 21 Sup. Ct. 390; Smith v. Zaner, 4 Ala. 99; Donovan v. Pitcher, 53 Ala. 411, 25 Am. Rep. 634; Farrell v. Enright, 12 Cal. 450; Matter of Pendergast's Es- tate, 143 Cal. 135, 76 Pac. 962; Crosgrove v. Crosgrove, 69 Conn. 416, 38 Atl. 219; State v. Steven- son, 6 Idaho 367, 55 Pac. 886; De Graft V. Went, 164 111. 485, 45 N. E. 1075; Meadowcroft v. Winne- bago County, 181 111. 504, 54 N. E. 949; Donaldson v. State (Ind.), 67 N. E. 1029; Burrow v. Burrow, 98 Iowa 400, 67 N. W. 287; Smith v. Lynch, 61 Kan. 609, 60 Pac. 329; Trimbles v. Harrison, 1 B. Mon. (40 Ky.) 140; Yeaker's Heirs v. Yeaker-s Heirs, 4 Mete. (Ky.) 33, 81 Am. Dec. 530; Utassy v. Gied- Inghagen, 132 Mo. 53, 33 S. W. 444; Pembroke v. Huston, 180 Mo. 627, 79 S. W. 470; Glynn v. Glynn, 62 Neb. 872, 87 N. W. 1052; Dougherty v. Kubat, 67 Neb. 269, 93 N. W. 317; Montgomery v. Dorion, 7 N. H. 475; Parish v. Ward, 28 Barb. (N. Y.) 328; Ren- ner v. Muller, 57 How. Pr. (N. Y.) 229; Jackson v. FitzSimmons, 10 Wend. (N. Y.) 9, 24 Am. Dec. 198; Smith v. Smith, 70 App. Div. (N. Y.) 286, 74 N. Y. Supp. 967; Halyburton v. Kershaw, 3 Desaus. (S. C.) 105; Hardy v. De Leon, 5 Tex. 211. No distinction is drawn between alien friends and alien enemies. — Fairfax v. Hunter, 7 Cranch (U. S.) 602, 3 L. Ed. 453; re- affirmed 1 Wheat. (U. S.) 304, 4 L. Ed. 97; Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628. 422 COMMENTABIES ON THE LAW OF WILLS. should he die intestate^" An alien in the chain of descent prevents the title to lands from passing through him to his heirs J^ This, however, applies only where the alien is the medium through which the title must pass ; since the alien can not take title by descent, he can not transmit it. But the rule does not prevent one citizen from inher- iting from another, although the common ancestor of both was an alien, if the title can pass direct or imme- diately from one to another, a celebrated case being that of one brother inheriting from another, although their father was an alien.''* But upon the death of an alien intestate, and the person to whom his real property T6Levy V. M'Cartee, 6 Pet. (U. S.) 102, 8 L. Ed. 334; Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. Ed. 613; Blight v. Rochester, 7 Wheat. (U. S.) 535, 5 L. Ed. 516; Doe V. Lazenby, 1 Ind. 234; Peo- ple V. Conklin, 2 Hill (N. Y.) 67. See, also, cases cited in preced- ing note; also, Irwin v. McBride, 23 U. C. Q. B. 570; Montgomery V. Graham, 31 U. C. Q. B. 57. 77 Levy V. M'Cartee, 6 Pet. (TJ. S.) 102, 8 L. Ed. 334; Meadow- . croft V. Winnebago County, 181 111. 504, 54 N. E. 949; Eldon v. Doe, 6 Blackf. (Ind.) 341; Murray V. Kelly, 27 Ind. 42; Donaldson v. State, (Ind.) 67 N. E. 1029; Furenes v. Mickelson, 86 Iowa 508, 53 N. W. 416; Wilcke v. Wilcke, 102 Iowa 173, 71 N. W. 201; Meier v. Lee, 106 Iowa 303, 76 N. W. 712; Smith v. Lynch, 61 , Kan. 609, 60 Pac. 329 ; Redpath v. Rich, 3 Sandf, (N. Y.) 79; Jack- son V. Green, 7 Wend. (N. Y.) 333; Jackson v. Fitz Simmons, 10 Wend. (N. Y.) 9, 24 Am. Deo. 198. Contra: Campbell's Appeal, 64 Conn. 277, 292, 24 L. R. A. 667, 29 Atl. 494. 78 Collingwood v. Pace, 1 Keble 65; Levy v. M'Cartee, 6 Pet. (IT. S.) 102, 8 L. Ed. 334; Wilcke v. Wilcke, 102 Iowa 173, 71 N. W. 201; Smith v. Mulligan, 11 Abb. Pr. N. S. (N. Y.) 438; Jackson v. Green, 7 Wend. (N. Y.) 333, 335; Parish V. Ward, 28 Barb. (N. Y.) 328; McGregor v. Comstock, 3 N. Y. 408. See, also, 2 Bl. Com. **226, 250; Slater v. Nason, 15 Pick. (Mass.) 345. If a citizen dies Intestate and leaves issue who are aliens, the property descends to the next of kin who may inherit, the alien issue being considered as non-ex- isting.— Orr V. Hodgson, 4 Wheat. (U. SJ 453. 4 L. Ed. 613. LEGAL DISABILITIES, 423 would otherwise descend being likewise an alien, the estate is held to escheat to the state without inquest of office or office found/^ §321. The Same Subject: Distinction Between Title to Real Property Passing by Operation of Law and by Act of the Parties. A distinction is naade between a case where lands are acquired by act of the parties and one where title passes by operation of law. A devise is considered an act of the parties the same as a deed; thus, while an alien can not take lands under the law of succession from an intes- tate decedent, yet he may acquire title by deed or de- 79 Pacific Bank v. Hannah, 90 Fed. 72, 32 C. C. A. 522; Contree V. Godfrey, 1 Cranch (TJ. S. C. C.) 479, Fed. Cas. No. 3140; Fairfax V. Hunter, 7 Cranch (U. S.) 603, 3 L. Ed. 453; Taylor v. Benham, 5 How. (U. S.) 233, 12 L. Ed. 130; McKinney v. Saviego, 18 How. (U. S.) 235, 15 L. Ed. 365; Bartlett V. Morris, 9 Port. (Ala.) 266, 270; Btheridge v. Doe, 18 Ala. 565; State V. Stevenson, 6 Idaho 367, 55 Pac. 886; Wunderle v. Wund- erle, 144 111. 40, 19 L. R. A. 84, 33 N. E. 195; Meadowcroft v. Winne- bago County, 181 111. 504, 54 N. E. 949; Donaldson v. State, (Ind.) 67 N. E. 1029; Purczell v. Smidt, 21 Iowa 540; Madden v. State, 68 Kan. 658, 75 Pac. 1023; Trimbles T. Harrison, 1 B. Mon. (40 Ky.) 140; Slater v. Nason, 15 Pick. (Mass.) 345; Fox v. Southack, 12 Mass. 143; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Farrar T. Dean, 24 Mo. 16; Pembroke v. Huston, 180 Mo. 627, 79 S. W. 470; Montgomery v. Dorion, 7 N. H. 475; Colgan v. McKeon, 24 N. J. Law 566; Jackson v. Adams, 7 Wend. (N. Y.) 367; McGillis v. McGlllis, 154 N. Y. 532, 49 N. B. 145; Richardson v. Amsdon, 85 N. Y. Supp. 342; Rubeck v. Gard- ner, 7 Watts (Pa.) 455; Hinkle's Lessee v. Shadden, 2 Swan (32 Tenn.) 46. If the title of the deceased alien to real property is evidenced by a warranty deed from the State It- self, the rule has been held not to apply, but the property passes to the alien's heirs. — Common- wealth V. Andre's Heirs, 3 Pick. (Mass.) 224; Goodell v. Jackson, 20 Johns. (N. Y.) 693, 707, 11 Am. Dec 351. 424 COMMENTARIES ON THE LAW OP WILLS. vise.®" Sucli title, however, is defeasible, and may be divested by office found or by legislative enactment ; but ^ntil such action is taken the state does not acquire the title, and until then the alien may hold the property." If, however, the alien becomes naturalized before for- 80 Brigham v. Kenyon, 76 Fed. 30; Lohmann v. Helmer, 104 Fed. 178; Fairfax v. Hunter, 7 Cranch (U. S.) 603, 619, 620, 3 L. Ed. 453; reaffirmed 1 Wheat. (U. S.) 304, 4 L. Ed. 97; Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. Ed. 613; Conrad v. Waples, 96 U. S. 279, 289, 24 L. Ed. 721; Airhart v. Mas- sieu, 98 TJ. S. 491, 493, 25 L. Ed. 213; Phillips v. Moore, 100 U. S. 208, 212, 25 L. Ed. 603; McKinley Creek Min. Co. v. Alaska United Min. Co., 183 V. S. 563, 46 L. Ed. S31, 22 Sup. Ct. 84; Harley v. State, 40 Ala. 689; Wunderle v. Wunderle, 144 111. 40, 19 L. R. A. 84, 33 N. E. 195; Donaldson v. State, (Ind.) 67 N. E. 1029; Easton V. Huott, 95 Iowa 473, 31 L. R. A. 177, 64 N. W. 408; Burrow v. Burrow, 98 Iowa 400, 67 N. W. 287; Madden v. State, 68 Kan. 658, 75 Pac. 1023; Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344; Fox v. Southack, 12 Mass. 143; Pembroke v. Huston, 180 Mo. 627, 79 S. W, 470; Mooers v. White, 6 Johns. Ch. (N. Y.) 360; Richardson v. Amsdon, 85 N. Y. Supp. 342; Marx V. McGlynn, 88 N. Y. 357; Quinn V. Ladd, 37 Or. 261, 272, 59 Pac. 457; Vaux v. Nesbit, 1 McCord Eq. (S. C.) 352; Marshall v. Con- rad, 5 Call (Va.) 364. 81 Billings V. Aspen Min. & S. Co., 51 Fed. 338, 342, 2 C. C. A. 252; Taylor v. Benham, 5 How. (U. S.) 233, 12 L. Ed. 130; Craig V. Radford, 3 Wheat. (U. S.) 594, 4 L. Ed. 467; Doe v. Robertson, 11 Wheat. (U. S.) 332, 355, 6 L. Ed. 488; Fairfax v. Hunter, 7 Cranch (U. S.) 603, 618, 3 L. Ed. 453; Air- hart V. Massieu, 98 U. S. 491, 498, 25 L. Ed. 213; Manuel v. Wulff, 152 U. S. 506, 38 L. Ed. 532, 14 Sup. Ct. 651; McKinley Creek Min. Co. V. Alaska United Min. Co., 183 U. S. 563, 571, 46 L. Ed. 331, 22 Sup. Ct. 84; People v. Folsom, 5 Cal. 373; De Merle v. Mathews, 26 Cal. 455, 477; Hal- stead V. Board of Comrs. of Lake County, 56 Ind. 363; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Jackson v. Adams, 7 Wend. (N. Y.) 367. The title of an alien can not be attacked in a collateral proceed- ing. — Osterman v. Baldwin, 6 Wall. 116, 121, 18 L. Ed. 730; Phillips V. Moore, 100 U. S. 208, 25 L. Ed. 603; Racouillat v. San- sevain, 32 Cal. 376; Justice Min- ing Co. V. Lee, 21 Colo. 260, 263, 52 Am. St. Rep. 216, 40 Pac. 444; Lenehan v. Spaulding, 57 Vt. 115. LEGAL DISABILITIES. 425 feiture has been decreed, the right of the state to a forfeiture is waived and the title in the alien becomes effective for all purposes ;^2 but naturalization will not affect a title already escheated to the state or vested in another by descent.*^ § 322. The Same Subject: As to Personal Property. As to personal property, the disabilities of aliens re- garding real property do not obtain. Alien friends may acquire and transmit personalty in the same manner as citizens of this country.** Eeal property, which by the will of the deceased is directed to be sold and converted into money and the proceeds distributed, is considered 82 Lone Jack Min. Co. v. Meg- ginson, 82 Fed. 89, 27 C. C. A. 63; Govemeur v. Robertson, 11 Wbeat. (U. S.) 332, 6 L. Ed. 488; Manuel V. Wulff, 152 TJ. S. 505, 38 L. Ed. 532, 14 Sup. Ct. 651; Harley v. State, 40 Ala. 689; Pembroke v. Huston, 180 Mo. 627, 79 S. W. 470. 83 White V. White, 2 Mete. (Ky.) 185; Foss v. Crisp, 20 Pick. (Mass.) 121; Keenan v. Keenan, 7 Rich. L. (S. C.) 345. As to the rule of the civil law, which required a proceeding simi- lar in effect to inquest of office, in order that the fact of alienage should he established, see Phil- lips V. Moore, 100 TJ. S. 208, 212, 25 L. Ed. 603. 84 2 Kent Com. **62, 63; Du Hourmelin v. Sheldon, 1 BeaT. 79; S. c, 4 Myl. & Cr. 525; Ruckgaber V. Moore, 104 Fed. 947, 31 Civ. Proc. Rep. 310; Craig v. Leslie, 3 Wheat. (TJ. S.) 563, 4 L. Ed. 460; M'Leam v. Wallace, 10 Pet. (tr. S.) 625. 637, 9 L. Ed. 559; Evan's Appeal, 51 Conn. 435; Cros- grove V. Crosgrove, 69 Conn. 416, 38 Atl. 219; Cleveland etc. Ry. Co. V. Osgood, 36 Ind. App. 34, 73 N. B. 285; Greenheld v. Morrison, 21 Iowa 538; Sala's Succession, 50 La. Ann. 1009, 24 So. 674; State V. Montgomery, 94 Me. 192, 80 Am. St. Rep. 386, 47 Atl. 165; Harney v. Donohoe, 97 Mo. 141, 10 S. W. 191; Bradwell v. Weeks, 1 Johns. Ch. (N. Y.) 206; Beck v. McGillis, 9 Barb. (N. Y.) 35; Tanas v. Municipal Gas Co., 88 App. Div. 251, 84 N. Y. Supp. 1053; Megrath v. Robertson's Admrs., 1 Desaus. (S. C.) 445. 426 COMMENTAHIES ON THE LAW OF WILLS. as personalty, and a bequest of such proceeds to an alien is valid.*" §323. The Same Subject: Disabilities of Alien Enemies. All property of alien enemies, citizens of a foreign nation with which the United States is at war, is liable to seizure and confiscation, the exercise of such power resting in Congress; but if Congress does not act, the property of alien enemies should be protected.^* How- 86 Du Hourmelin v. Sheldon, 1 Beav. 79; s. c, 4 Myl. & Cr. 525; Craig V. Leslie, 3 Wheat. (U. S.) 563, 4 L. Ed. 460; Compton v. Mo- Mahan, 19 Mo. App. 494, 503; Van- dewalker v. Rollins, 63 N. H. 460, 464, 3 Atl. 625; Scudder's Exrs. v: Vanarsdale, 13 N. J. Eq. 109, 113. 86 1 Kent Com. **59-65, and cases cited; 2 Kent. Com. *63; Brown v. United States, 8 Cranch (U. S.) 110, 3 L. Ed. 504; Conrad V. Waples, 96 U. S. 284, 24 L. Ed. 721; Crutcher v. Hord, 4 Bush (67 Ky.) 360; McVeigh v. Bank of Old Dominion, 26 Grat. (Va.) 188, 199. To the same effect, see Bradwell v. Weeks, 1 Johns. Ch. (N. Y.) 206, the opinion being by Chancellor Kent, and concurred in by all members of the Supreme Court. This decree, however, was reversed on appeal to the Court of Errors, the members of such court being equally divided in opinion, the deciding voice being the presi- dent of the court, Lieutenant Gov- ernor Taylor. Compare: Heirn v. Bridault, 37 Miss. 209, 232. holding that in the absence of law conferring the right, an African (who is classi- fied as an alien enemy) could neither take nor hold property in that state, by deed or devise, by descent or purchase, except free persons of color residing there by permission. The question of the rights of alien enemies is an interesting one at this time, but the subject is too extended to be dealt with here. It may be said that alien enemies, although they may be sued and are entitled to defend actions instituted against them, in the absence of a statutory grant of privilege, can not prosecute suits in the courts of this coun- try while war continues ; the cause of action, however, is merely held in suspense during hostilities, and may thereafter be prosecuted. — Knoefel v. Williams, 30 Ind. 1; Perkins v. Rogers, 35 Ind. 124, 9 Am. Rep. 639; Crutcher v. Hord, 4 Bush (67 Ky.) 360; Dorsey v. Kyle, 30 Md. 512, 96 Am. Dec. 617; Levine v. Taylor, 12 Mass. 8; Bell v. Chapman, 10 Johns. (N. Y.) LEGAL DISABILITIBS. 427 ever, since aliens can take real property by devise, al- though their title will be defeasible, alien enemies, in the absence of legislation to the contrary, can hold the title to realty taken by devise nntU office found or seizure and confiscation.*^ And since they can take personal property by bequest or by reason of kinship, and can transmit the same, bequests of personalty to alien ene- mies are valid ; but since they have not the right to sue, the right to the property may be said to be in abeyance and unenforceable until after the war has ceased.*^ §324. The Same Subject: Effect of Treaties. The rights of aliens are often regulated by treaty. Wherever a treaty is in force between the United States and a foreign government, it supersedes all constitutions and laws of the various states which may be in conflict with it, and is the supreme law of the land, needing no legislation to make it operative or effective.** Where 183; Jackson v. Decker, 11 Johns. Compare: Crane v. Reeder, 21 (N. T.) 418; Sanderson v. Mor- Mich. 24, 80, 4 Am. Rep. 430. gan, 39 N. Y. 231; Bishop v. Jones, 88 Attorney General v. Wheedon, 28 Tex. 294. Park. (Eng. Ex.) 267; Crutcher v. 87 Fairfax v. Hunter, 7 Cranch Herd, 4 Bush (67 Ky.) 360. (TJ. S.) 603, 3 L. Ed. 453; Jackson Contra: Bradwell v. Weeks, 13 V. Clarke, 3 Wheat. (U. S.) 2, Johns. (N. Y.) 1, by a divided 4 L. Ed. 319; United States v. court. Repentigny, 5 Wall. (U. S.) 211, 89 Fellows v. Blacksmith, 19 268, 18 L. Ed. 627; Taylor v. Ben- How. (U. S.) 366, 372, 15 L. Ed. ham, 5 How. (U. S.) 233, 270, 684; Cherokee Nation v. Georgia, 12 L. Ed. 130; Kershaw v. Kelsey, 5 Pet. (U. S.) 1, 44, 8 L. Ed. 25; 100 Mass. 561, 575, 97 Am. Dec. Worcester v. Georgia, 6 Pet. 124, 1 Am. Rep. 142; Yeo v. Mer- (U. S.) 515, 8 L. Ed. 483; The cereau, 18 N. J. Law 387, 397; Kansas Indians, 5 Wall. (U. S.) Hardy v. De Leon, 5 Tex. 211, 239; 737, 18 L. Ed. 667; HaUenstein v; Marshall v. Conrad, 5 Call (Va.) Lynham, 100 U. S. 483, 489, 25 364; Stephen's Heirs v. Swann, L. Ed. 628; Head Money Cases, 9 Leigh (Va.) 404. 112 U. S. 580, 599, 28 L. Ed. 798, 428 COMMENTAEIES ON THE LAW OP WILLS. rights are conferred upon aliens by treaty, they may be enforced in the courts of the various states or of the 5 Sup. Ct. 247; Baldwin v. Franks, 120 tr. S. 678, 703, 30 L. Ed. 766, 7 Sup. Ct. 656, 763; Whitney v. Robertson, 124 U. S. 190, 194, 31 L. Ed. 386, 8 Sup. Ct. 456; Geofroy V. Riggs, 133 U. S. 258, 33 L. Ed. 642, 10 Sup. Ct. 295; Blythe v. Hinckley, 180 V. S. 333, 45 L. Ed. 557, 21 Sup. Ct. 390; Blythe v. Hinckley, 127 Cal. 431, 59 Pac. 787; Scharpf v. Schmidt, 172 111. 255, 50 N. E. 182; Wilcke v. Wilcke, 102 Iowa 173, 71 N. W. 201. As to the Convention of 1853, between France and the United States, see: Geofroy v. Riggs, 133 tT. S. 258, 33 L. Ed. 642, 10 Sup. Ct. 295. As to former treaties with France, see: Chirac v. Chirac, 2 Wheat. (U. S.) 259, 4 L. Ed. 234; Cameal v. Banks, 10 Wheat. (U. S.) 181, 6 L. Ed. 297. As to the treaty ceding Louisi- ana to the United States, see: Delassus v. United States, 9 Pet. (U. S.) 117, 133, 9 L. Ed. 71. As to the treaty of 1783 be- tween Great Britain and the United States, see: Orr v. Hodg- son, 4 Wheat. (U. S.) 453, 4 L. Ed. 613; Society v. New Haven, 8 Wheat. (U. S.) 464, 5 L. Ed. 662; Shanks v. Dupont, 3 Pet. (U. S.) 242, 7 L. Ed. 666. As to the treaty of 1794 be- tween. Great Britain and the United States, see: Fairfax v. Hunter, 7 Cranch (U. S.) 603, 3 L. Ed. 453; Jackson v. Clarke, 3 Wheat. (U. S.) 1, 12, 4 L. Ed. 319; Craig v. Radford, 3 Wheat. (U. S.) 594, 4 L. Ed. 467; Orr v. Hodgson, 4 Wheat. (U. S.) 453, 4 L. Ed. 613. As to the treaty of 1850 be- tween Switzerland and the United States, see: Hauenstein v. Lyn- ham, 100 U. S. 483, 25 L. Ed. 628. As to the treaty with Austria, see: Baltz Brewing Co. v. Kaiser- brauerei. Beck & Co., 74 Fed. 222, 20 C. C. A. 402. As to treaty with the German Empire, see: The Blwine Kreplin, 9 Blatchf. (U. S.) 438, Fed. Cas. No. 4426; People v. Gerke, 5 Cal. 381; Stamm v. Bostwlck, 40 Hun (N. Y.) 35; s. c, 122 N. Y. 48, 9 L. R. A. 597, 25 N. E. 233; Scharpf v. Schmidt, 172 111. 255, 50 N. E. 182; Opel v. Shoup, 100 Iowa 407, 37 L. R. A. 583, 69 N. W. 560. As to treaty with Russia, see: Maynard v. Maynard, 36 Hun (N. Y.) 227. As to treaty with Belgium, see: Wildenhaus' Case, 120 U. S. 1, 30 L. Ed. 565, 7 Sup. Ct. 385. As to treaty with Italy, see: Storti V. Massachusetts, 183 U. S. 138, 46 L. Ed. 121, 22 Sup. Ct. 72. LEGAL DISABILITIES. 429 United States the same as if such, rights were derived from a legislative enactment.®" § 325. The Same Subject: State Regulations. Each of these United States has the power, either by its constitution or by legislative enactment, to confer upon aliens the right to take or to pass property by devise or descent ; it may limit or deny such right except where such action would be in conflict with some treaty.®^ In a number of the states the rule of the common law has been modified and even abolished by statutes which have conferred upon aliens, other than corporations, the same property rights as are possessed by citizens, includ- ing the right to take and transmit real property by de- scent or devise. This liberal policy has not been adopted in all jurisdictions, in some of the states the rule of the common law still prevailing.®^ As to the District of 00 Choteau V. Marguerite, 12 Pet. Hauver, 65 Cal. 593, 4 Pac. 639; (U. S.) 507, 9 L. Ed. 1174; Dalnese State v. Smith, 70 Cal. 153, 12 V. Hale, 91 V. S. 13, 23 L. Ed. 190; Pao. 121. Head Money Cases, 112 U. S. 580, 92 A reference to all the various 28 L. Ed. 798, 5 Sup. Ct. 247; statutes would serve no useful United States v. Rauscher, 119 purpose in this work; the law con- tr. S. 407, 30 L. Ed. 425, 7 Sup. Ct. trolling must in each case be spe- 234; In re Cooper, 143 U. S. 472, cially investigated. But as a 36 L. Ed. 232, 12 Sup. Ct. 453. matter for general reference, a 91 Chirac v. Chirac, 2 Wheat, few cases are cited which have (U. S.) 259, 272, 4 L. Ed. 234; construed some of the statutes Levy V. M'Cartee, 6 Pet. (U. S.) with reference to the rights of 102, 8 L. Ed. 334; De Vaughn v. aliens: Griffith v. Godey, 113 U. S. Hutchinson, 165 U. S. 566, 41 89, 96, 28 L. Ed. 934, 6 Sup. Ct. L. Ed. 827, 17 Sup. Ct. 461; Clarke 383, referring to the Constitution V. Clarke, 178 XJ. S. 186, 44 L. Ed. of California; Blythe v. Hinckley, 1028, 20 Sup. Ct. 873; Blythe v. 180 TJ. S. 333, 45 L. Ed. 557, 21 Hinckley, 180 TJ. S. 333, 45 L. Ed. Sup. Ct. 390, referring to laws of 557, 21 Sup. Ct. 390; State v. California; McConville v. Howell, Rogers, 13 Cal. 159; Billings v. 17 Fed. 104, 5 McCrary 319, refer- 430 COMMENTARIES ON THE LAW OP WILLS. Columbia and the territories, they are governed by acts of Congress.®^ ring to laws of Colorado; Bahu- aud V. Blze, 105 Fed. 485, referring to laws of Nebraska; Niorosi T. Phillipi, 91 Ala. 299, 8 So. 561; Jones V. Minogue, 29 Ark. 637; Ferguson v. Neville, 61 Cal. 356; In re Leopold's Estate, 67 Cal. 385, 7 Pao. 766; Blythe v. Hinck- ley, 127 Cal. 431, 59 Pac. 787; Matter of Pendergast's Estate, 143 Cal. 135, 76 Pac. 962; State v. Stevenson, 6 Idaho 367, 55 Pac. 886; Beavan v. "Went, 155 111. 592, 31 L. R. A. 85, 41 N. E. 91; De Graft V. Went, 164 HI. 485, 45 N. B. 1075; Meadowcroft v. Winnebago County, 181 111. 504, 54 N. E. 949; State V. Witz, 87 Ind. 190; Don- aldson V. State, (Ind.) 67 N. E. 1029; Opel v. Shoup, 100 Iowa 407, 37 L. R. A. 583, 69 N. W. 560; Doehrel v. Hillmer, 102 Iowa 169, 71 N. W. 204; Meier v. Lee, 106 Iowa 303, 76 N. W. 712; Eustache V. RodaquMt, 11 Bush (74 Ky.) 42; ■ Commonwealth v. Newcomb, 109 !Ky. 18, 58 S. W. 445; Rabasse'a Succession, 49 La. Ann. 1405, 22 So. 767; Lumb T. Jenkins, 100 Mass. 527; Burke v. Adams, 80 Mo. 504, 50 Am. Rep. 510; Utassy V. Giedinghagen, 132 Mo. 53, 33 S. W. 444; Pembroke v. Huston, 180 Mo. 627, 79 S. W. 470; Terri- tory V. Lee, 2 Mont. 124, holding that the organic act of the Terri- tory of Montana does not accept ijie common law rule. But see: Civil Code of Montana, §1867; Glynn v. Glynn, 62 Neb. 872, 87 N. W. 1052; Dougherty v. Kubat, 67 Neb. 269, 93 N. W. 317; State V. Preble, 18 Nev. 251, 2 Pac. 754; Richardson v. Amsdon, 85 N. Y. Supp. 342; Fay v. Taylor, 31 Misc. Rep. 32, 63 N. Y. Supp. 572; Haley v. Sheridan, 107 App. Div. 17, 94 N. Y. Supp. 864; Mc- Gillis v. McGillis, 154 N. Y. 532, 49 N. E. 145; Spencer v. Carlson, 36 Ore. 364, 59 Pac. 708; Com- monwealth V. Detwiller, 131 Pa. St. 614, 7 L. R. A. 357, 18 Atl. 990; Ehrlich v. Weber, 114 Tenn. 711, 88 S. W. 188; Hanrick v. Gurley, (Tex. Civ.) 48 S. W. 994; Hannon V. Hounihan, 85 Va. 429, 12 S. E. 157; State v. Morrison, 18 Wash. 664, 52 Pac. 228; State v. Superior Court, 33 Wash. 542, 74 Pac. 686. Where the statute which allows aJiens to hold lands prescribes certain conditions in order that the power may be exercised, non- compliance with the conditions will cause the property to escheat to the state. — Estate of Pender- gast, 143 Cal. 135, 76 Pac. 962; Wuester v. Folin, 60 Kan. 334, 56 Pac. 490. 93Geofroy v. RIggs, 133 U. S. 258, 33 L. Ed. 642, 10 Sup. Ct. 295; 24 U. S. Stats. L. 476; Johnson v. Elkins, 1 App. Cas. (D. C.) 430. INDIANS. Indians are under the protec- tion of the federal government. LEGAL DISABILITIES. 431 as wards of the nation. They owe no allegiance to the various states. — United States v. Kagama, 118 U. S. 375, 383, 30 L. Ed. 228; United States v. Thomas, 151 U. S. 577, 38 L. Ed. 276; Stephens v. Cherokee Nation, 174 U. S. 445, 484, 43 L. Ed. 1041; Matter of Heff, 197 U. S. 488, 499, 49 L. Ed. 848. The power of self government has been conferred on many of the Indian nations by treaties. — Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1, 8 L. Ed. 25; Worcester v. Georgia, 6 Pet. (U. S.) 515, 519, 8 L. Ed. 483; Cherokee Nation v. Southern Kan- sas R. Co., 135 U. S. 641, 654, 34 L. Ed. 295; Delaware Indians V. Cherokee Indians, 193 U. S. 127, 144, 48 L. Ed. 640. Where a tribal organization is recognized by the United States, members of such tribe Inherit property according to the laws, usages and customs of such tribe, not under the laws of the state wherein the tribe is located. — Mackey v. Coxe, 18 How. (U. S.) 100, 15 L. Ed. 299; Jones v. Mee- han, 175 U. S. 1, 44 L. Ed. 49. As to lands allotted to Indiana, Congress has passed several stat- utes for determining the heirs of deceased Indians, for the disposi- tion and sale of allotments of de- ceased Indians, and for other purposes. Wills of Indians devis- ing allotted lands have been re- quired to be approved, as, for Instance, the Act of Congress of April 26, 1906, ch. 1876, 34 Stat. L. 137, § 23 thereof, provides that the devisees of Indians of the Five Civilized Tribes in the Indian Territory must be approved by a judge of the United States Court for the Indian Territory, or a United States commissioner or judge of a county court of the State of Oklahoma, in those cases where an Indian, being of full blood, disinherits his wife, parent, child or children, otherwise he may make a will if of sound mind. The Act of Congress of June 25, 1910, ch. 431, 36 Stat. L. 855, by § 2 provides that any Indian of the age of twenty-one years, to whom an allotment has been or thereafter may be made, shall have the right, prior to the ex- piration of the trust period and before the Issuance of a fee simple patent, to dispose of such allotment by will. In accordance with rules and regulations to be prescribed by the Secretary of the Interior; provided, however, that no will SO' executed shall be valid until it shall have been approved by the Commissioner of Indian Affairs and the Secretary of the Interior. See, also, amendment to the above section by act of Feb- ruary 14, 1913, ch. 55, 37 Stat. L. 678. This act, however, did not Include the Five Civilized Tribes, the Osage Indians, or apply to the State of Oklahoma. See, also, Hallowell v. Commons, 239 U. S. 506, 60 L. Ed. 409. 432 COMMENTARIES ON THE LAW OF WILLS. The provisions of the Act of Congress of April 26, 1906, 34 Stat. L. 137, providing for ac- knowledgment and approval by a judge of an Indian's will disin- heriting children, does not apply to grandchildren or great grand- children. — Bell V. Davis, (Okla.) 155 Pac. 1132. The Revised Laws of Oklahoma, 1910, § 8341, do not apply to In- dians of the Five Civilized Tribes, Indians of those tribes being per- mitted by Congress to dispose of their allotted land by will. — Brock V. Keifer, (Okla.) 157 Pac. 88. A member of the Omaha tribe of Indians, to whom land has been allotted, may devise his interest in the land, by will, and such devise is valid, although the ap- proval required by the act takes place after the death of the tes- tator.— Moore V. Busse, 98 Neb. 813, 154 N. W. 552. The will of an Indian is valid if executed according to the law in force at the time of death, although invalid under the law in force at the time of its execution. — Barber v. Brown, (Okla.) 154 Pao. 1156. CHAPTER XIV. MENTAL CAPACITY NECESSARY TO MAKE A VALID WILL. § 326. A testator must be of sound mind. § 327. Mental capacity is tested as of the date of the execution of the will. § 328. Testamentary capacity refers to the ability to understand. § 329. Sound mind defined : Variations of the rule. § 330. The degree of testamentary capacity required varies according to conditions. § 331. A weak mind is not inconsistent with testamentary capacity. § 332. Ability to transact business not a true test of testamentary capacity. § 333. Presumption as to the continuance of insanity: Chronic or temporary. § 334. Effect of an adjudication of insanity. § 335. Effect of the testator being under guardianship. § 336. Effect of an adjudication of incompetency subsequent to the making of the will. § 337. Lucid intervals. § 338. The same subject: Description and proof. § 339. The law deals with the effect of the mental derangement, not its cause. § 340. Effect of partial loss of memory. § 341. Infirmities of old age do not establish testamentary inca- pacity. § 342. The same subject. § 343. The same subject : A question of fact. § 344. Insane delusions defined. § 345. Unless the provisions of the will are affected by the insane delusion, the instrument is not invalidated. § 346. Unusual religious beliefs, spiritualism, and the like, in themselves do not establish incapacity. I Com. on Wills— 28 (433) 434 COMMENTAKIES ON THE LAW OF WILLS. § 347. Effect of evidence of eccentricities, § 348. Deafness, dumbness, and blindness. § 349. The same subject. § 350. Excessive use of drugs or intoxicants. § 351. Apoplectic seizures and epileptic spells. § 352. Suicide does not, of itself, establish mental incompetency. § 353. Unreasonable prejudices and animosities. § 354. Wills containing harsh and unreasonable provisions : Do not establish incapacity. §355. The same subject: How considered. § 326. A Testator Must Be of Sound Mind. The Statute of Wills of Henry VIII ^ authorizing tes- tamentary dispositions of real property, excluded idiots and those of non-sane memory, and in this regard no change was made by the statute of 1 Victoria.^ Such always has been and now is the general rule. A testator must be of sound mind at the time he makes his will, otherwise it may be declared invalid. A sound mind is a disposing mind.* If the mental faculties are totally extingnaishedi the testator can not be said to possess understanding to any degree whatsoever, or for any purpose. But the degrees of mental capacity are count- less; we may easily distinguish the extremes, the wise man from the idiot ; but there is a twilight zone of human intelligence, the boundary between light and darkness. Thousands of adjudicated cases furnish us the law, but in the final analysis each rests on its own particular facts.* 1 statute of 32 Henry VIII, oh. 1, * "But If a man be of a mean as explained by the Statute of 34 understanding (neither of the and 35 Henry VIII, ch. 5. wise sort nor of the foollsji), but 2 Statute of 1 Victoria, ch. 26. Indifferent, as It were, 'twixt a s Allen V. North, 271 111. 190, wise man and a fool, yea, though 110 N. E. 1027. he rather Inclined to the foolish MENTAL CAPACITY, 435 § 327. Mental Capacity Is Tested as of the Date of the Execu- tion of the Will. The mental capacity of a testator is tested as of tlie date of the execution of his will.^ Other things being equal, the evidence of attesting witnesses, and next to them, of those present at the execution, is most relied sort, so that for his dull capacity he might worthily be termed gros- sum caput, a dull pate or a dunce, such an one is not prohibited to make a testament unless he be held more foolish, and so very simple and sottish, that he may easily be made to believe things incredible or impossible, as that he can fly, or that in old time trees did walk, beasts and birds could speak, as it is in Aesop's Fables; for he that is so foolish can not make a testament, be- cause he hath not so much wit as a child of ten or eleven years old, who is therefore intestable, namely, for want of judgment." — Swinburne Wills, pt. 2, § 4. See, also, Osmond v. Fltzroy, 3 P. Wms. 129 ; Willis v. Jernegan, 2 Atk. 251; Townsend v. Lowfleld, 1 Ves. Sea. 35. Lord Cranworth, in Boyse v. Rossborough, 6 H. L. Cas. 1, says: "There is no difficulty in the case of a raving madman or a driveling idiot in sa,ying that he Is not a person capable of dispos- ing of property, but between such an extreme case and that of a , man of perfectly sound and vigor- ous understanding, there is every stage of Intellect, every degree of mental capacity. There Is no pos- sibility of mistaking midnight from noon, but at what precise moment twilight becomes dark- ness is hard to determine." It is not every degree of in- sanity which will vitiate a will. There is no standard, so although the testator be enfeebled, both physically and mentally, yet if he retains sufficient mind, reason and judgment, at the time he executes the will to understand that he is engaged In that kind of business, that he has knowledge of his prop- erty and how he wishes to dispose of it, and remembers those who have actual claims upon his boun- ty, he Is of testamentary capacity. — Stevens v. Myers, 62 Or. 372, 121 Pac. 434, 126 Pac. 29. 5 Huyck V. Rennie, 151 Gal. 411, 90 Pac. 929; Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849; Harris v. Hlpsley, 122 Md. 418, 89 Atl. 852; In re Buckman's Will, 80 N. J. Eq. 556, 85 Atl. 246; Chrlsman v. Chrlsman, 16 Or. 127, 18 Pac. 6; In re Pickett's Will, 49 Or. 127, 89 Pac. 377; In re McNitt's Estate, 229 Pa. St. 71, 78 AU. 32; Warren V. Ellis, (Tex. Civ.) 137 S. W. 1182; Points v. Nier, 91 Wash. 20, 157 Pac. 44. 436 COMMENTAEIES ON THE LAW OF WILLS. upon.® Evidence as to the testator's mental condition at times more or less remote from the date of the execution of the will, however, is admissible, but the court may properly require the party offering such evidence to spe-^ cify the time to which he relates in order that its weight may be intelligently estimated. '^ § 328. Testamentary Capacity Refers to the Ability to Under- stand. In, order that a will may be valid, something more is required than the mere signing by the maker. It is easy to say that a testator, otherwise qualified and not sub- jected to fraud, duress or undue influence, must be of sound naind when he makes his will, but the condition of the human mind is most difi&cult of proof. Mental unsoundness is so varied in character and manifestation that even the most experienced alienists, after careful study and investigation, find it difficult either to state its cause or to define its effect upon the actions of the one alleged to be afflicted ; and such experts quite frequently disagree. It is impossible to state the degree of intelli- gence necessary to make a valid will, since it is a varying quantity, depending on the facts to be considered. It is difficult to lay down a general rule; expressions of such 6 Chrisman v. Chrisman, 16 Or. the investigation of the subject of 127, 18 Pac. 6; In re Pickett's Will, testamentary capacity at the time 49 Or. 127, 89 Pac. 377. the will was executed. — ^Wisner v. 7 Huyck V. Rennie, 151 Cal. 411, Chandler, 95 Kan. 36, 147 Pac. 90 Pac. 929. 849; Kerr v. Lunsford, 31 W. Va. The time when a contested will 059, 2 L. R. A. G68, 8 S. E. 493. was executed is always the time See, post, §§ 355, 356, 357, as of primary importance in estim- to evidence of testamentary ca- ating the testator's capacity. Evi- paclty before or after the will was dence of capacity or want of ca- made, pacity before or after merely aids MENTAL CAPACITT, 437 a rule are found in many adjudicated cases, but often have reference to the particular facts under considera- tion. A testator, in order to execute a valid will, must be of sound mind with reference to whatever is involved in the transaction, and that varies according to the extent and value of the property and the character of the dis- positions. It is sometimes said that the testator must understand the nature and the importance of the business which he is transacting.® But testamentary capacity deals 'with the ability to understand, not with the question of actual knowledge. It is the capacity to know and under- stand which the law regards, not that the testator actually jknew, as matters of fact, the nature, extent and value of his property.® Such cases must not be confused with those involving questions of fraud and intent. A wise man may execute an instrument, but it is not his will unless he knew its character, since the signing might be through fraud or mistake, and unless he intended it as a testamentary disposition, since the execution might have been in jest. In such cases the question of the testa- mentary capacity of the testator would not be involved. § 329. Sound Mind Defined: Variations of the Rule. A sound mind may be said to exist where the testator has, at the time of making his will, the mental ability to understand and comprehend the nature of the act, the 8 Roche V. Nason, 105 App. Dlv. regards. — See, Yoe v. McCord, 74 256, 93 N. Y. Supp. 565; Points v. 111. 33; Roller v. Kling, 150 Ind. Nier, 91 Wash. 20, 157 Pac. 44. 159, 49 N. E. 948; Reichenbach v. 9 "Actual comprehension of the Ruddach, 127 Pa. St. 564, 1 8 Atl. nature and extent of one's prop- 432; Holmes V. Campbell College, erty Is not an essential element 87 Kan. 597 Ann. Cas. 1914a, 475, of testamentary capacity." The 41 L. R. A. (N. S.) 1126, 125 Pac. capacity to kndw is what the law 25. 438 COMMENTAEIES ON THE LAW OF WILLS. value, condition and extent of his property, his relations to the persons about him, the number and names of those who are the natural objects of his bounty,^" and regard- ing such matters to form a rational judgment." Some statements of the rule are to the effect that the testator must have the ability, without prompting, to comprehend the foregoing matters.^^ Suggestion which merely re- freshes the memory should not vitiate a will, the intelli- gence to understand being present. If the prompting is of such a character as to amount to undue influence, the question of capacity would only be material as a matter of evidence in order to show, in a contest on the ground of undue influence, the effect of such prompting. There are statements of the rule which require mental ability sufficient to review all facts in relation with each other so as to form a judgment,^^ while others omit the 10 A testator's perception of hla make a will of personalty and of relation to the persons who should realty. — ^Winchester's Case, 6 Coke be objects of his bounty does not 23; Sloan v. Maxwell, 3 N. J. Eq. mean that he should know and 563, 566. recognize every distant relative J2 Taylor v. McClintock, 87 Ark. who Is entitled to inherit from 243, 112 S. W. 405; Mason T. him under the existing canons of Bowen, 122 Ark. 407, 183 S. W. descent. The definition refers to 973; Spratt v. Spratt, 76 Mich, near relations of a testator, those 384, 43 N. W. 627; Schlelderer v. who are the "natural objects of Gergen (In re Latto's Estate), 129 his bounty." Cousins to the sec- Minn. 248, 152 N. W. 541; In re ond, third, and fourth degree of Butler's Will, 110 Wis. 70, 85 N. W. propinquity are not Included in 678. the definition of "natural objects 13 Lehman v. Lindenmeyer, 48 of testator's bounty." — Matter of Colo. 305, 109 Pac. 956; Spratt v. Mccarty's Will, 141 App. Div. 816, Spratt, 76 Mich. 384, 43 N. W. 326 N. Y. Supp. 699, 702; In re 627; Schlelderer v. Gergen (In re Campbell's Will, 136 N. Y. Supp. Latto's Estate), 129 Minn. 248, 1086, 1096-1097. 152 N. W. 541; In re Butler's Will, 11 No distinction is made be- 110 Wis. 70, 85 N. W. 678. tween the capacity requisite to MENTAL CAPACITY. 439 requirement. Here we nmst remember that the adjudi- cated cases deal with facts; a decision may be correct although the rule be too strongly or too loosely stated. Ability to form a rational judgment regarding the mat- ters involved should be demanded ; but that the testator should be mentally competent to review all matters and their inter-relationship, and to compare or contrast the same, seems too great a requirement. The motives which actuate a testator are indeterminable and are known only to himself ; testamentary wishes do not generally spring from a cold analysis, and the law should not require that which, even with the will of the wise man, can not be said to exist." 14 The following cases lay down the general rule, with variations, as to the degree of mental capac- ity required to make a valid will: Marsh v. Tyrrell, 2 Hagg. Ecc. 84, 122; Blewitt v. Blewitt, 4 Hagg. Ecc. 410, 419; "Winchester's Case, 6 Coke 23; Banks v. Goodfellow, L. R. 5 Q. B. 549 ; Brown v. Bruce, 19 tr. C. Q. B. 35; Council v. May- hew, 172 Ala. 295, 55 So. 314; In re Huston's Estate, 163 Cal. 166, 124 Pae. 852; In re De Laveaga's Estate, 165 Cal. 607, 133 Pac. 307; Lehman v. landenmeyer, 48 Colo. 305, 109 Pac. 956; Dunham's Ap- peal, 27 Conn. 192; Hall v. Hall, 18 Ga. 40; McFarland v. Morrison, 144 Ga. 63, 86 S. E. 227; Delaney V. Salina, 34 Kan. 532, 9 Pac. 271; McCoy V. Sheehy, 252 III. 509, 96 N. E. 1069; In re Weedman's Estate, 254 111. 504, 98 N. E. 956; Austin V. Austin, 260 111. 299, Ann. Cas. 1914D, 336, 103 N. E. 268; Coleman v. Marshall, 263 111. 330, 104 N. E. 1042; Bowers v. Evans, 269 111. 453, 109 N. E. 989; Cline V. Llndsey, 110 Ind. 337, 11 N. E. 441; Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N. E. 177; Pence v. Myers, 180 Ind. 282, 101 N. E. 716; Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500; Sevening V. Smith, 153 Iowa 639, 133 N. W. 1081; Bales v. Bales, 164 Iowa 257, 145 N. W. 673; Philpott v. Jones. 164 Iowa 730, 146 N. W. 859; Shropshire v. Reno, 5 J. J. Marsh (28 Ky.) 91; Whitney v. Twombly, 136 Mass. 145; Lyon v. Townsend, 124 Md. 163, 91 Atl. 704; Brown v. Fidelity Trust Co., 126 Md. 175, 94 Atl. 523; Spratt v. Spratt, 76 Mich. 384, 43 N. W. 627; In re Nelson's Will, (Stockton v. Thorn) 39 Minn. 204, 39 N. W. 143; Hammond v. Dike, 42 Minn. 273, 274, 3 8 Am. St. Rep. 503, 44 N. W. 61; Mitchell v. Mitchell, 43 440 COMMENTAKIES ON THE LAW OP WILLS. § 330. The Degree of Testamentary Capacity Required Varies According to Conditions. It has been variously said that less capacity is required to make a valid will than is required to execute any other Minn. 73, 44 N. W. 885; Schlei- derer v. Gergen, (In re Latto's Estate) 129 Minn. 248, 152 N. W. 541; Lewis v. Murray (In re Hud- son's Estate), 131 Minn. 439, 155 N. W. 392; Berst v. Moxom, 157 Mo. App. 342, 138 S. W. 74; Lueb- bert V. Brockmeyer, 158 Mo. App. 196, 138 S. W. 92; Wolfe v. Whit- worth, 170 Mo. App. 372, 156 S. W. 715; Crum v. Crum, 231 Mo. 626, 132 S. W. 1070; Turner v. Ander- son, 236 Mo. 523, 139 S. W. 180; Current v. Current, 244 Mo. 429, 148 S. W. 860; Naylor v. McRuer, 248 Mo. 423, 154 S. W. 772; An- drew V. Linebaugh, 260 Mo. 623, 169 S. W. 135; Byrne v. Fulkerson, 254 Mo. 97, 162 S. W. 171; Murphy V. Nett, 47 Mont. 38, 130 Pac. 451; In re Dillon's Will, 82 N. J. Eq. 322, 87 Atl. 161; In re Craft's Estate, 85 N. J. Eq. 125; 94 Atl. 606; Brown r. Torrey, 24 Barb. (N. Y.) 583; In re Campbell's Will, 136 N. Y. Supp. 1086; In re Browning's Will, 80 Misc. Rep. 619, 142 N. Y. Supp. 683; Phillips V. Flagler, 82 Misc. Rep. 500, 143 N. Y. Supp. 798 ; In re Carpenter's Will, 145 N. Y. Supp. 365; In re McCusker's Will, 89 Misc. Rep. 652, 153 N. Y. Supp. 1086; Home V. Home, 31 N. C. 99; Cornelius V. Cornelius, 52 N. C. 593; Earn- hardt V. Smith, 86 N. C. 473 ; Bost V. Bost, 87 N. C. 477; Cameron- Barkley Co. v. Thornton Light & Power Co., 138 N. C. 365, 50 S. E. 695, 107 Am. St. Rep. 532; Sprinkle V. Wellborn, 140 N. C. 163, 181, 111 Am. St. Rep. 827, 3 L. R. A. (N. S.) 174, 52 S. E. 666; In re Craven's Will, 169 N. C. 561, 86 S. B. 587; Wadsworth v. Purdy, 31 Ohio Civ. Ct. Rep. 110; Hubbard v. Hubbard, 7 Or. 42; In re Hart's Will, 65 Or. 263, 132 Pac. 526; In re Diggin's Estate, 76 Or. 341, 149 Pac. 73; Boyd V. Eby, 8 Watts (Pa.) 66, 70; McTaggart v. Thompson, 14 Pa. St. 149; In re Lindsay's Estate, 240 Pa. St. 19, 87 Atl. 302; In re Corson's Estate, 29 S. D. 14, 135 N. W. 666; Salinas v. Garcia, (Tex. Civ. App.) 135 S. W. 588; In re Bartels' Estate, (Tex. Civ. App.) 164 S. W. 859; Huff v. Welch, 115 Va. 74, 78 S. E. 573; Wilson v. Craig, 86 Wash. 465; Ann. Gas. 1917B, 871, 150 Pac. 1170; Free- man V. Freeman, 71 W. Va. 303, 76 S. E. 657; In re Butler's Will, 110 Wis. 70, 85 N. W. 678. The term compos mentis as it relates to testamentary capacity, is carefully considered in Meeker V. Meeker, 75 111. 260; Bundy v. McKnight, 48 Ind. 502; Delafield v. Parish, 25 N. Y. 9; Van Guys- ling V. Van Kuren, 35 N. Y. 70; Tyler v. Gardiner, 35 N. Y. 559; MENTAL CAPACITY. 441 legal instrument,^ ^ that no greater mental capacity is required to make a valid will than to make a valid deed/® or that less mental capacity is required to make a will than to make a contract with those who deal with the party at arm's length.^'' Comparisons of such nature are most difficult since it requires us to distinguish between two unknown quantities which are subject to infinite vari- ations. A man may purchase a pound of coffee from his grocer; that is a business dealing, yet it could not be compared to a transaction covering the sale of extensive properties involving millions of dollars. A man may have but little property, its extent being so limited and its value so small that the entire situation may be easily understood by one of but slight intelligence. He may make his will and leave everything to his wife or children. Such a transaction could not be compared to one requir- ing the testamentary disposition of an estate of great Kinne V. Johnson, 60 Barb. (N. T.) Lispenard, 26 Wend. (N. Y.) 255; 69. Matter of Halbert's Will, 15 Misc. Compare: Duffield v. Robeson, Rep. 308, 37 N. Y. Supp. 757; Mat- 2 Har. (Del.) 375, 379; Sutton v. ter of Sutherland's Will, 28 Misc. Sutton, 5 Har. (Del.) 459; Town- Rep. 424, 59 N. Y. Supp. 989; In send V. Bogart, 5 Redf. Sur. re Carpenter's Will, 145 N. Y. (N. Y.) 93, 105. Supp. 365, 371. 15 Matter of Halbert's Will, 15 1 7 slaughter v. Heath, 127 Ga. Misc. Rep. 308, 37 N. Y. Supp. 747, 57 S. E. 69, 27 L. R. A. (N. S.) 757; Matter of Seagrist's Will, 1 1; Greene v. Greene, 145 111. 264, App. Div. 615, 37 N. Y. Supp. 496; 33 N. E. 941; Ring v. Lawless, 190 Matter of Armstrong's Will, 55 111. 520, 60 N. E. 881; People v. Misc. Rep. 487, 106 N. Y. Supp. Baskin, 254 111. 509, 98 N. E. 957; 671; Matter of Browning's Will, Hammond v. Dike, 42 Minn. 273, 80 Misc. Rep. 619, 142 N. Y. Supp. 44 N. W. 61, 18 Am. St Rep. 503; 683; In re Carpenter's Will, 145 Schleiderer v. Gergen, (In re N. Y Supp. 365, 370. Latto's Estate) 129 Minn. 248, 152 16 Allen V. North, 271 111. 190, N. W. 541. 110 N. E. 1027; Stewart's Exr. v. 442 COHMENTAEIES ON THE LAW OF WILLS. value, of properties widely scattered, with devises and bequests in trust and to charities, and with many relations who might justly claim to be entitled to remembrance.^* § 331. A Weak Mind Is Not Inconsistent With Testamentar7 Capacity. It is not required that a testator be of perfect under- standing in order that his will may have validity, nor will it be upheld merely because some understanding exists. A sound mind is a disposing mind ; one who has the mental capacity to make a will is said to be of sound mind.^® This, however, does not comprehend a perfect mind, or one free from all infirmities. Soundness of mind, as used in the law of wills, means merely that intel- ligence necessary to make a valid testamentary disposi- tion of property. Where a mind exists, it may be weak or strong, but the difference is only in the extent and power of its faculties. Testamentary capacity may exist in either case. It has been said that the test of a perfect capacity is where the individual talks and discourses rationally and sensibly and is fully capable of any ra- tional act requiring thought, judgment and reflection. But a sound mind is not determined by how well a man may talk or reason, the soundness of his judgment, or ] 8 Coleman v. Marshall, 263 III. immediate family. — Trish v. New- 3?.0, 104 N. B. 1042; Murphy v. ell, 62 111. 196, 14 Am. Rep. 79; Nett, 47 Mont. 38, 130 Pac. 451. Schleiderer r. Gergen (In re It requires somewhat greater Latto's Estate) 129 Minn. 248, 152 capacity to dispose of a large and N. W. 541; Sheldon v. Dow, 1 De- diverslfled estate among numerous marest Sur. (N. Y.) 503 ; In re recipients with various gradations Silverthorn, 68 Wis. 372, 32 N. W. of claims, than it does to dispose 287. of a small and simple estate 19 Allen v. North, 271 111. 190, among the members of one's own 110 N. E. 1027. MENTAL OAPACITT. 443 the propriety of his actions. The question is not how well he may talk and act, but can he talk and act ration- ally and sensibly, has he mind and reason, has he thought, judgment and reflection? Incapacity is more than weak capacity. Mental weakness is not inconsistent with tes- tamentary capacity, and mere feebleness of mind does not suffice to invalidate a will if the testator acted freely, and had sufficient mind to comprehend intelligently the nature and effect of the act he was performing, the estate he was undertaking to dispose of, and the relations he held to the various persons who might naturally expect to become the objects of his bounty.^** 20 Rodney v. Burton, 4 Boyce (27 Del.) 171, 86 Atl. 826; Greene V. Greene, 145 111. 264, 33 N. B. 941; People v. Baskin, 254 HI. 509, 98 N. E. 957; Roller v. Kllng, 150 Ind. 159, 49 N. E. 948; Holmes v. Campbell College, 87 Kan. 597, Ann. Cas. 1914A, 475, 41 L. R. A. (N. S.) 1126, 125 Pac. 25; In re Craven's Will, 169 N. C. 561, 86 S. E. 587; Reichenbacli v. Rud- dach, 127 Pa. St. 564, 18 Atl. 432. In Newhouse v. Godwin, 17 Barb. (N. Y.) 236, the court says: "The weak have the same rights with the prudent or strong minded to dispose of their property." Forgetfulness and slight delu- sions do not establish lack of capacity to make a will. — ^In re Carpenter's Will, 145 N. Y. Supp. 365, 372; Children's Aid Society V. Loveridge, 70 N. Y. 387. The effect of mental disorders upon the capacity of the afflicted to make a will having so long been the subject of the most care- ful judicial consideration, the rules on the subject must be re- garded as settled. Thus it is that in courts of probate, though a man may have lapses of memory and show childishness at times, if he can manage his affairs prudently and correctly, show a due appre- ciation of the nature and amount of his property and of the claims of near and dear relations, his testamentary capacity is sufficient. — Kinleside v. Harrison, 2 Phillim. 449; Haughian v. Conlan, 86 App. Div. 290, 83 N. Y. Supp. 830; In re Campbell's Will, 136 N. Y. Supp. 1086, 1097; Loder v. Whelpley, 111 N. Y. 239, 250, 18 N. E. 874. Impairment of memory of testa- tor is generally not a ground for rejecting a will. — Philpott v. Jones, 164 Iowa 730, 146 N. W. 859; Matter of McGraw's Will, 9 App. Div. 372, 41 N. Y. Supp. 481; Matter of Glhon's Will, 44 App. 444 COMMENTAEIBS ON THE LAW OF WILLS. § 332. Ability to Transact Business Not a True Test of Testa- mentary Capacity. Minute and intelligent attention to business affairs is admissible on an issue of testamentary capacity.^^ But a testator may have capacity to make a valid mil, al- though not able to make contracts or manage his estate.^^ He may not have sufficient mind and vigor of intellect to transact business generally, or to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. The question is whether the testator's mind and memory are sufficiently sound to enable him to understand the business in which Div. 621, 60 N. Y. Supp. 65; Id., 163 N. Y. 595, 57 N. B. 1110; In re Carpenter's Will, 145 N. Y. Supp. 365, 371; Horn v. Pullman, 72 N. Y. 269. 21 Billings Appeal, 49 Conn. 456. Compare: Brewer v. Barrett, 58 Md. 587. Ability to transact ordinary bus- iness properly is strong evidence of testamentary capacity. — Matter of Birdsall's Will, 2 Con. Sur. 433, 13 N. Y. Supp. 421; In re Car- penter's Will, 145 N. Y. Supp. 365, 372. The fact that a testator super- vised his own large estate wisely, benevolently, and prudently until his death is evidence of the fact that he understood the condition of his property. — In re Campbell's Will, 136 N. Y. Supp. 1086, 1096. One who is mentally capable of transacting business is ordinarily competent to make a will. — Spier V. Spier (In re Spier's Estate), 99 Neb. 853, 157 N. W. 1014, L. R. A. 1916E, 692. 22 Kramer v. Weinert, 81 Ala. 414, 1 So. 26; Greene v. Greene, 145 III. 264, 33 N. E. 941; People v. Baskin, 254 111. 509, 98 N. E. 957; Coleman v. Marshall, 263 111. 330, 104 N. E. 1042; Brinkman v. Rueggesick, 71 Mo. 553 ; Clarke v. Sawyer, 3 Sandf. Ch. (N. Y.) 351; Matter of Seagrist's Will, 1 App. Div. 615, 37 N. Y. Supp. 496; Mat- ter of Browning's Will, 80 Misc. Rep. 619, 142 N. Y. Supp. 683; In re Carpenter's Will, 145 N. Y. Supp. 365, 371. Mere grammatical errors of mis- use of words which may be accounted for on the ground of mere inadvertence, do not show want of testamentary capacity. — State V. Goodman, 133 Tenn. 375, ISl S. W. 312. MENTAL CAPACITY. 445 he is engaged at the time he executes the will, to bear in mind the property to be bequeathed, to remember the objects of his bounty, and to plan a scheme of disposi- tion.^* Then again, business capacity may co-exist with insane delusions which would render the will invalid.^* The business transactions of life may, and often do, involve considerations which do not arise in making a testamentary disposition of property. In the business world one must compete against many antagonists in order to protect his interests; it is a battle requiring 23 Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Cas. No. 6H1; Stevens v. Vancleve, 4 Wash. C. C. 262, Fed. Cas. No. 13412; Corn- stock V. Hadlyme etc. Soc, 8 Conn. 254, 265, 20 Am. Dec. 100; Klnne v. Kinne, 9 Conn. 102, 105, 21 Am. Dec 732; Dunham's Ap- peal, 27 Conn. 192, 204; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Hall V. Hall, 18 Ga. 40; Hathorn V. King, 8 Mass. 371, 5 Am. Dec. ]06; Home v. Home, 31 N. C. 99; Lowe V. Williamson, 2 N. J. Eq. 82, 85; Sloan v. Maxwell, 3 N. J. Eq. 563; Andress v. Weller, 3 N. J. Eq. 604; Goble v. Grant, 3 N. J. Eq. 629; Brown v. Torrey, 24 Barb. (N. Y.) 583; Stewart's Bxr. V. Lispenard, 26 Wend. (N. Y.) 255; Chandler v. Ferris, 1 Har. (Del.) 454, 464; Kachline v. Clark, 4 Whart. (Pa.) 316, 320; Boyd v. Eby, 8 Watts (Pa.) 66; Rambler V. Tryon, 7 Serg. & R. (Pa.) 90, 95, 10 Am. Dec. 444; Domick v. Reichenback, 10 Serg. & R. (Pa.) 84; Monasters v. Blair, 29 Pa. St. 298; Kirkwood v. Gordon, 7 Rich. (S. C.) 474, 62 Am. Dec. 418; Con- verse's Exr. V. Converse, 21 Vt. 168, 52 Am. Dec. 58. If a person have sufficient capac- ity to comprehend perfectly the condition of his property, his rela- tions to the persons who would or should or might have been the objects of his bounty, and the scope or bearing of the provisions of his will, he has testamentary capacity. — Kinne v. Johnson, 60 Barb. (N. Y.) 69, 72, 73; Watson V. Donnelly, 28 Barb. (N. Y.) 653, 655; Roche v. Nason, 105 App. Div. 256, 93 N. Y. Supp. 565, af- firmed 185 N. Y. 128, 77 N. E. 1007; Matter of Johnson's Will, 60 Misc. Rep. 277, 279, 113 N. Y. Supp. 283; In re Campbell's Will, 136 N. Y. Supp. 1086, 1096; Dela- field V. Parish, 25 N. Y. 9, 109. 24 American Bible Society v. Price, 115 111. 623, 5 N. E. 126; Fhilpott V. Jones, 164 Iowa 730, 146 N. W. 859. See, post, §§ 344, 345, as to in- sane delusions. 446 COMMENTAEIES ON THE LAW OF WILLS. experience^ judgment and reasoning powers not neces- sary in making a will. Ability to conduct business, at the most, furnishes but an uncertain criterion of testa- mentary capacity, and is at best only one of the many questions of fact which may be taken into consideration.^* § 333. Presumption as to the Continuance of Insanity : Chronic or Temporary. There is a general presumption that a thing once proved to exist, continues to exist as long as is usual for things of that nature. Therefore proof of insanity, per- manent in its nature, raises the presumption of continu- ity ; and a person who, prior to the time he executed his will, had been proved or adjudged incompetent because of insanity of a chronic character, is presumed to have been mentally incapacitated from executing his testa, ment.^® This presumption, however, does not obtain in 26 Coleman v. Marshall, 263 111. party had sufflicient mental capao- 330, 104 N. B. 1042. Ity to comprehend and transact The conclusion of common ordinary business, but did he, at sense is that It takes more mind the time of making the instrument to make some wills than to make purporting to be his wiU, have gome contracts, and vice versa; such mind and memory as enabled and there is excellent authority him to understand the particular for the rule that, while contractual business in which he was then en- capacity implies prima facie the gaged." — Harrison v. Rowan, 3 capacity to make a will, yet Wash. C. C. 580 (Fed. Cas. No,. neither is a test for the other, and 6141) ; Stevens v. Van Cleve, 4 the presence or absence of one Wash. C. C. 262 (Fed. Cas. No. does not conclusively establish 13412) ; Campbell v. Campbell, 130 the presence or absence of the 111. 466, 22 N. E. 620, 6 L. R. A. other.— Murphy v. Nett, 47 Mont. 167; Greene v. Greene, 145 111. 38, 130 Pao. 451. 264, 33 N. E. 941. In Craig v. Southard, 148 111. 37, See, also, Coleman v. Marshall, 35 N. E. 361, the court says: "The 263 111. 330, 104 N. E. 1042. real question submitted to the 26 Swinburne Wills, pt. 2, §3;: Jury, however, is not whether the Cartwright v. Cartwright, 1 Phil-: MENTAL CAPACITY. 447 those cases where the insanity was merely of a temporary character, being only intermittent or occasional, or the result of sickness or accident. Thus insanity existing spme length of time before the making of the will, when shown to have been the temporary result of a violent sickness or accident, is not deemed to have impaired the present testamentary capacity.^'' llm. 90, 100; Groom v. Thomas, 2 Hagg. Ecc. 433, 434; Attorney General v. Parnther, 3 Bro. C. C. 443; Chambers v. Proctor, 2 Curt. 415; Grimani v. Draper, 6 Notes of Cas. 418; Keely v. Moore, 196 TJ. S. 38, 49 L. Ed. 376, 25 Sup. Ct. 169; Bastis v. Montgomery, 95 Ala. 486, 36 Am. St. Rep. 227, 11 So. 204; In re Johnson's Estate, 57 Cal. 529; James White Mem- orial Home V. Haeg, 204 111. 422, 68 N. B. 568; In re Knox's Will, 123 Iowa 24, 98 N. W. 468; Gesell V. Baugher, 100 Md. 677, 60 Atl. 481; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Woodville v. Mor- rill, 130 Minn. 92, 153 N. W. 131; Buford V. Gruber, 223 Mo. 231, 253, 122 S. W. 717; Byrne v. Fulker- son, 254 Mo. 97, 162 S. W. 171; In re Murphy's Estate, 43 Mont. 353, Ann. Cas. 1912C, 380. 116 Pac. 1004; Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Am. Dec. 402; Clarke v. Sawyer, 3 Sandf. Ch. (N. Y.) 351; Hoopes' Estate, 174 Pa. St. 373, 34 Atl. 603; In re Brown, 39 Wash. 160, 109 Am. St. Rep. 868, 4 Ann. Cas. 488, 1 L. R. A. (N. S.) 540, 81 Pac. 552. It has been held that this pre- sumption continues notwithstand- ing the testator has been released on parole, there being no formal discharge from the asylum. — Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131. See, post, §§ 401, 402, as affect- ing burden of proof. See, post, § 396, as to presump- tion of sanity. 27 Cartwright v. Cartwright, 1 Phillim. 90, 100; Murphree v. Senn, 107 Ala. 424, 18 So. 264; Trish V. Newell, 62 111. 196, 201, 14 Am. Rep. 79; Brown v. Rlggin, 94 in. 560; Taylor v. Pegram, 151 111. 106, 37 N. E. 837; Kirsher v. Kirsher, 120 Iowa 337, 94 N. W. 846; Halley v. Webster, 21 Me. 461; Townshend v. Townshend, 7 Gill (Md.) 10; Little v. Little, 13 Gray (Mass.) 264; Hix v. Whitte- more, 4 Mete. (Mass.) 545; In re Murphy's Estate, 43 Mont. 353, Ann. Cas. 1912C, 380, 116 Pac. 1004; Koegel v. Egner, 54 N. J. Eq. 623, 35 Atl. 394; Clarke v. Sawyer, 3 Sandf. Ch. (N. Y.) 351; Matter of Davis' Will, 91 Hun (N. Y.) 209, 36 N. Y. Supp. 344; McMasters v. Blair, 29 Pa. St. 298; Barbey v. Boardman, 202 Pa. St. 448 COMMENTARIES ON THE LAW OP WILLS. § 334. Effect of an Adjudication of Insanity. When the issue is the testamentary capacity of the testator, the question to be determined is whether or not the decedent was of sound mind at the time the will was executed; if he was, his mental condition, either before or after, will not affect the validity of the will.^^ It is well settled, however, that where a testator had been adjudged insane prior to the time he made his will, evi- dence of such fact may be admitted even though he were thereafter restored to capacity before his will was exe- cuted. It is well known that mental diseases often recur, and it is perfectly proper to show that one is predisposed to insanity.^® But proof of prior adjudication of insanity is merely prima facie evidence of incompetency ; it is not conclusive on the question of testamentary capacity since it may be shown either that the derangement of the mind of the testator was limited and not general and that he had sufficient mind to understand and appreciate his testamentary act, or that the will was executed during a 185, 51 Atl. 756; Manley's Exr. v. 458, 168 S. W. 650; In re Murphy's Staples, 65 Vt. 370, 26 Atl. 630. Estate, 43 Mont. 353, Ann. Cas. See, post, §§ 350, 351. 1912C, 380, 116 Pac. 1004; Clark's 28Murpliree v. Senn, 107 Ala. Heirs v. Ellis, 9 Or. 128; Surface 424, 18 So. 264; People v. Francis, v. Bentz, 228 Pa. St. 610, 21 Ann. 38 Cal. 183; In re Nelson's Estate, Cas. 215, 77 Atl. 922. 132 Cal. 182, 64 Pac. 294; In re 29 Mileham v. Montagne, 148 Carithers' Estate, 156 Cal. 422, Iowa 476, 125 N. W. 664. 105 Pac. 127; Voodry v. Trustees, To the same effect, see Dicken 251 111. 48, 95 N. B. 1034; Bundy v. Johnson, 7 Ga. 484; Terry v. V. McKnight, 48 Ind. 502; Wisner liufflngton, 11 Ga. 337, 56 Am. Dec. V. Chandler, 95 Kan. 36, 147 Pac. 423; Holliday v. Shepherd, 269 111. 849; Turner v. Rusk, 53 Md. 65; 429, 109 N. E. 976; Pepper v. McAllister v. Rowland (In re Bull- Martin, 175 Ind. 580, 92 N. E. 777; ard's Estate), 124 Minn. 27, Ann. In re Knox's Will, 123 Iowa 24, 98 Cas. 1915B, 1006, 144 N. W. 412; N. W. 468; Rodgers v. Rodgers, Balak v. Susanka, 182 Mo. App. 5C Kan. 483, 43 Pac. 779. MENTAL CAPACITY. 449 lucid interval when he was of sound mind.'** The weight of such evidence of a former adjudication of insanity depends upon the nature of the disease, whether tempo- rary or chronic, whether the result of an injury from which complete recovery might be expected, whether the offspring of congenital defects, or whether it is of such a nature that its recurrence might be reasonably expected.^^ § 335. Effect of the Testator Being Under Guardianship. It has been held that an adjudication of incompetency in guardianship proceedings, or the fact that the testator is under guardianship at the time he makes his will, does not raise even a prima facie presumption of testamentary incapacity.'^ The issues in a proceeding for the appoint- ment of a guardian do not necessarily involve the same questions which must be determined on an issue of testa- mentary capacity.'' Other decisions hold that the fact -that a person is under guardianship raises the presump- tion of incapacity to make a will, but that it does not, iowever, invalidate the testament if competency can be so Pepper v. Martin, 175 Ind. si Mileham v. Montague, 148 '580, 92 N. E. 777; Woodville v. Iowa 476, 125 N. W. 664. Morrill, 130 Minn. 92, 153 N. W. '» Rice v. Rice, 50 Mich. 448, 15 131; Lewis v. Jones, 50 Barb. N. W. 545; In re Cowdrys Will. (N. Y.) 645; Wadsworth v. Sharp- ^^ ^t- 359. 3 Ann. Cas. 70; 60 Atl. 141. steen, 8 N. Y. 388, 59 Am. Dec. 499 ; Matter of Coe's Will, 47 App. Compare: In re Wheelock's Will, 76 Vt. 235, 56 Atl. 1013. TDiv. 177, 62 N. Y. Supp. 376; In g^^^ ^j^^_ ^^^^^ ^ ^^^^^^ ^^ re Schober's Will, 90 Misc. Rep. ^^^^ ^gg. g^^^^ ^ p^^^j._ ^g p.^j^. 230, 154 N. Y. Supp. 309, 315; Har- (Mass.) 115. den V. Hays, 9 Pa. 151; Titlow v. 33 pittard v. Foster, 12 111. App. Titlow, 54 Pa. St. 216, 93 Am. Dec. 132; In re Ames' Will, 40 Or. 495, .691. 67 Pac. 737. I Com. on Wills— 29 450 COMMENTARIES ON THE LAW OF WILLS. shown.** It is not all guardians who are appointed be- cause of the mental incompetency of the ward. For instance, a minor may be under guardianship, but by reason of age, not because adjudged mentally deficient; and in spite of minority, in some jurisdictions he may make a will of personalty. A guardian may be appointed for other reasons which may not require an adjudication of mental incompetency. Even though one may be under guardianship because of inability to manage his property, yet lack of ability to transact business or to make con- tracts is not a true test of testamentary capacity, as a testator may not be able to properly and prudently man- age his affairs, yet be able to make a valid will.^® Proof of the guardianship in such a case should not be compared with one where the ward had been found to be afflicted with chronic insanity. It would seem the better rule that proof of a prior appointment of a guardian, the guardianship not having terminated when the ward made his will, should be admitted in evidence, to receive such consideration as the facts warrant. It should not estab- lish testamentary incapacity, but its weight should de- 34 See, generally, In re Watts, Crowninshield, 2 Gray (Mass.) 524; I Curt. 594; Creagh v. Blood, 2 Little v. Little, 13 Gray (Mass.) Jones & L. 509; Cooke v. Choi- 264; Gamett v. Garnett, 114 Mass. mondeley, 2 Macn. & G. 22; 879, 19 Am. Rep. 369; In re Pin- Prlnsep v. Dyce Sombre, 10 Moore ney's Will, 27 Minn. 280, 6 N. W. P. C. C. 244; HaU v. Warren, 9 791, 7 N. W. 144; Searles v. Har- Ves. Jun. 605; Snook v. Watts, vey, 6 Hun (N. Y.) 65S; Titlow v. II Beav. 105; Bannatyne v. Ban- Titlow, 54 Pa. St. 216, 93 Am. natyne, 2 Robb. Ecc. 472, 16 Jur. Dec. 691 ; In re Miller's Estate, 179 864; Johnson's Estate, 57 Cal. 529; Pa. St. 645, 39 L. R. A. 220, 36 Lucas V. Parsons, 27 Ga. 593; Har- Atl. 139; In re Hoffman's Estate, rison v. Bishop, 131 Ind. 161, 31 209 Pa. St. 357, 58 Atl. 665. Am. St. Rep. 422, 30 N. E. 1069; 85 See, ante, § 332, as to the Matter of Fentpn's Will, 97 Iowa ability to transact business not 192, 66 N. W. 99; Crowninshield v. being a true test. MENTAL CAPACITY. 451 pend upon the nature of the adjudication with reference to the character of the disability of the ward and its nearness or remoteness in time to the making of the will.3« 36 The fact that a person was so far Incompetent as to justify the appointment of a guardian, may not establish the want of capacity sufficient for the making of a will, and of course can not fix the status of the person af- fected as incompetent to make a will on a date prior to that of the adjudication. But it is certainly evidence proper to he considered on the issue of want of testamen- tary capacity at the time of the appointment of the guardian. — See, In re Loveland's Estate, 162 Cal. 595, 123 Pac. 801; Terry v. Buffington, 11 Ga. 337, 56 Am. Dec. 423; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Chase v. Spen- cer, 150 Mich. 99, 113 N. W. 578; In re Ames' Will, 40 Or. 495, 67 Pac. 737; Schlndler v. Parzoo, 52 Or. 452, 97 Pac. 755; Small v. Champeny, 102 Wis. 61, 78 N. W. 407. Where there Is testimony tend- ing to show that the mental con- dition of the person has not changed between the date of the act in question and the appoint- ment of a guardian, the appoint- ment, although later in time, is admissible on the issue of capac- ity when the act was done. — See, In re Loveland's Estate, 162 Cal. 595, 123 Pac. 801; Schindler v. Parzoo, 52 Or. 452, 97 Pac. 755; Giles V. Hodge, 74 Wis. 360, 43 N. W. 163; Deleglise v. Morrissey, 142 Wis. 234, 125 N. W. 452. A judgment or order in pro- ceedings for the appointment of a guardian of an incompetent person and taking from such per- son the management of his prop- erty, is admissible in evidence in any litigation whatever, but not conclusive, to prove the person's mental condition at the time the order or judgment was made, or at any time during which the judgment finds the person incom- petent. — See, Field v. Lucas, 21 Ga. 447, 68 Am. Dec. 465; Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec. 282; Den v. Clark, 10 N. J. L. 217, 18 Am. Dec. 417; Yauger v. Skinner, 14 N. J. Eq. 389; Hill's Bxrs. v. Day, 34 N. J. Eq. 150; Van Deusen v. Sweet, 51 N. Y. 378 ; Rippy v. Gant, 39 N. C. 443; Hutchinson v. Sandt, 4 Rawle (Pa.) 234, 26 Am. Dec. 127; Willis V. Willis' Admr., 12 Pa. St. 159. A finding of incompetency in guardianship proceedings, or in proceedings upon a writ of de lunatico inquirendo, for which the guardianship proceedings are the modern equivalent, is admissible as evidence of the mental condi- tion of the person at the time cov- ered by such finding, notwith- standing that the parties to the ■ 452 COMMENTARIES ON THE LAW OF WILLS. ^ 336. Effect of an Adjudication of Incompetency Subsequent to the Making of the Will. The insanity of a testator subsequent to the execution of his will does not invalidate the instrument ; his mental condition when the will was made is the issue. An adjudi- cation that the testator was insane at a date after he had made his will would not cause the presumption that he had been insane at such former time. The presumption of continuance would not apply. Such an adjudication, whether in insanity or in guardianship proceedings, could not of itself establish testamentary incapacity at a prior date.*^ Evidence of an adjudication of the insanity or incompetency of testator subsequent to the time he made his will has, in some cases, been rejected on the ground of hearsay and that the parties to the litigation were different, and also on the ground of remoteness. It would seem, however, that such evidence should be equally admissible as the oral testimony of witnesses to prove the mental condition of the testator at or near the time the will was made, and the objection would seem more to the question of the weight and value of such evidence than to its admissibility.** But if the circum- litigation are different, and not- 422; Brooks v. Barrett, 7 Pick, withstanding the hearsay rule. — (Mass.) 94; Brady v. McBride, 39 McAllister v. Rowland (In re Bull- N. J. Eq. 495. ard's Estate), 124 Minn. 27, Ann. 38 McAllister v. Rowland (In re Cas. 1915B, 1006, 144 N. W. 412. Bullard's Estate), 124 Minn. 27, 37 Burrows v. Burrows, 1 Hagg. Ann. Cas. 1915B, 1006, 144 N. W. Bcc. 109; O'Donnell v. Rodiger, 412. 76 Ala. 222, 52 Am. Rep. 322; In See, also, Emery v. Hoyt, 46 111. re lioveland's Estate, 162 Cal. 595, 268 ; Shirley v. Taylor's Heirs, 5 B. 123 Pao. 801; Greene v. Greene, Mon. (44 Ky.) 99; Succession of 145 m. 264, 33 N. B. 941; In re Herbert, 33 La. Ann. 1099; Hovey Harvey's Will, (Iowa) 94 N. W. v. Chase, 52 Me. 304, 83 Am. Dec. 559; Taylor v. Creswell, 45 Md. 614; In re Finney's Will, 27 Minn. MENTAL CAPACITY. 453 stances are sucli that it is entitled to no consideration, it should be rejected. §337. Lucid Intervals. A person in whom there is an entire want of reason and understanding is designated as non compos mentis.^^ Such a person, by reason of his affliction, can not make a valid will.*** Insanity is best demonstrated where a per- 280, 6 N. W. 791, 7 N. W. 144; Rhoades v. Fuller, 139 Mo. 179, 40 S. W. 760; Jackson v. King, 4 Cow. (N. Y.) 207, 15 Am. Dec. 354; Rippy V. Gant, 39 N. C. 443; Sprinkle v. Wellborn, 140 N. C. 163, 111 Am. St. Rep. 827, 3 L. R. A. (N. S.) 174, 52 S. E. 666. 39 Persons non compos mentis were divided by Lord Coke Into four classes: (1) Idiots, being non compos from birth; (2) lunatics, being non compos only during the period when understanding is lacking; (3) those who become non compos through sickness ; and (4) drunkards. The three first mentioned were under the pro- tection of the law, the last only when the results were brought about through the unskillfulness of a physician or the connivance of enemies.— Coke Litt. 246, 247; Bacon's Abr. Tit. Idiots and Luna- tics, A. See, also, In re Schmidt's Will, 139 N. Y. Supp. 464, 483. One merely of mean understand- ing, as between a wise man and a fool, even though inclined to- ward the foolish sort. Is not for such reason alone prohibited from making a will, but must be so sim- ple as to believe incredible and impossible things; such a one can not make a testament since he has not the wit of a child. — Swin- burne Wills, pt. 2, § 4. See, also, Osmond v. Fitzroy, 3 P. Wms. 129. 40Duffleld V. Robeson, 2 Har. (Del.) 375; Elliott's Will, 2 J. J. Marsh (25 Ky.) 340; Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Am. Dec. 402; Newhouse v. God- win, 17 Barb. (N. Y.) 236; Stew- art's Exr. V. Lispenard, 26 Wend. (N. Y.) 255, 313; Patterson v. Patterson, 6 Serg. & R. (Pa.) 55; Dornick v. Reichenback, 10 Serg. & R. (Pa.) 84; Tomkins v. Tom- kins, 1 Bailey L. (S. C.) 92, 19 Am. Dec. 656. Compare: Townsend v. Bogart, 5 Redf. Sur. (N. Y.) 93; DelaHeld V. Parish, 25 N. Y. 9, 27. Idiocy, whether natural, or aris- ing from accident or disease, ren- ders one incapable of performing the testamentary act. For exam- ple, where one received an indenture of the skull, and there- 4g4 COMMENTAEIES ON THE LAW OF WILLS. son fails to react to the common facts, events and expe- riences of life.*^ But the fact that one is afflicted with insanity does not prevent him from executing a valid will, provided the same is made during a lucid interval. ^- after became simple, Incapable of carrying on connected conversa- tion, of estimating the value of money, unable to count higher than ten, to tell the time by a clock, liable to lose her way on familiar streets, having no idea of the value or extent of her prop- erty, she was considered not to possess a disposing mind. — Town- send V. Bogart, 5 Redf. Sur. (N. Y.) 93. *i In re Gedney's Will, 142 N. Y. Supp. 157, 175. The legal tests of insanity differ from the medical tests, the reason for this being that while mental malady may be pronounced enough to need curative treatment, it may not be pronounced enough to de- n o t e legal incapacity. — ^In re Schmidt's Will, 139 N. Y. Supp. 464; In re Martin's Will, 82 Misc. Rep. 574, 144 N. Y. Supp. 174, 179. 42 Swinburne, pt. 2, | 3, pi. 3; Brogden v. Brown, 2 Addams Eco. 441; Kemble v. Church, 3 Hagg. Bcc. 273; Rodd v. Lewis, 2 Lee Ecc. 176; Hall v. Warren, 9 Ves. Jun. 610; Beverley's Case, 4 Coke 123; Nichols and Freeman v. Binns, 1 S. "W^. & Tr. 239; Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Am. Dec. 402; In re Schmidt's Will, 139 N. Y. Supp. 464, 477; In re Silverthom, 68 Wis. 372, 32 N. W. 287. In Cartwright v. Cartwright, 1 Phillim. 90, the facts were tha.t a lady badly afflicted with perman- ent insanity and living under re- straint, but who was proved to have had intermissions of her complaint, drew up, without assist- ance and in proper form, a will in her own handwriting. At the moment of preparing the instru- ment she was apparently consid- erably excited, tearing up several pieces of paper and throwing them into the fire. After acting wildly and muttering to herself, she drew up her will and, calling for a candle, sealed the same. The sur- vivor of the two witnesses to the transaction testified that during the time the testatrix was writing, covering a space of more than an hour, her manner and actions showed many signs of insanity. The will was written In a remark- ably clear hand, without blots or grammatical errors, and its pro- visions were in conformity with her affections at that time. Some two months after drawing the will she mentioned the fact and, after having it brought to her, delivered it to her mother stating that there was no need of witnesses since all of the estate was personal and that the will was in her own hand- writing. Sir William Wynne pro- nounced the will valid. Among MENTAL CAPACITY. 455 If a testator is of sound mind when lie executes Ms will, it is immaterial what his mental condition may have been prior to that time, or what it subsequently might be.*^ other things he said: "Now I think the strongest and best proof that can arise as to a lucid interval is that which arises from the act itself; that I look upon as the thing to he first examined, and if it can he proved and established that it is a rational act rationally done the whole case is proved. What can you do more to estab- lish the act? because, suppose you are able to shew the party did that which appears to be a ra- tional act, and it is his own act entirely, nothing is left of the pre- sumption in order to prove a lucid interval." In Nichols and Free- man V. Binns, 1 Sw. & Tr. 239, the foregoing decision and lan- guage are commented on and dis- tinguished, Sir C. Creswell saying: "The mere fact that the act is rational, and done in a rational manner, is not, I think, in itself conclusive evidence of sanity; al- though in every case It will be very strong evidence of sanity, tending greatly to satisfy the mind of a rational person that the party so doing that act was at the time in full possession of his senses. But after a paroxysm of insanity has passed away, insanity may still be lurking in the mind of the patient although there is nothing apparent on the surface to show it." The remarks of Sir William Wynne were further ques- tioned in Chambers v. Queen's Proctor, 2 Curt. 415, 447, where it is said: "That Sir William Wynne did not consider every rational act rationally performed as suificient to prove a lucid interval, we may collect from what Is stated in a subsequent part of his judgment, in which he refers to cases where testamentary, acts of a rational character were set aside. So that it is not every rational act ration- ally done, which, under all circum- stances, is sufficient to constitute a lucid interval; it was the partic- ular manner in which the act was done in that case which led Sir William Wynne to the conclusion that there was a lucid interval." As to the character of the pro- visions of the will being evidence on the Issue of testamentary ca- pacity, see, post, |§ 354, 355. It has been held In Louisiana that although a person be habit- ually insane, it will be presumed that he made his will in a lucid Interval if it was drawn without the assistance of others, and con- tained nothing sounding in folly; and that It will devolve upon those who contest Its validity to show insanity at the moment It was made. — Kingsbury v. Whitaker, 32 La. Ann. 1055, 36 Am. Rep. 278. 4.3 Ayrey v. Hill, 2 Addams Ecc. 206, 210; Billinghurst v. Vickers, 1 Phillim. 187, 191; Greene v. 456 COMMENTARIES ON THE LAW OF WILLS. § 338. The Same Subject: Description and Proof. A lucid interval, as the term is used in connection with insane persons, is not merely a cessation of the violent symptoms of the disorder, but a temporary restoration of intelligence to the degree necessary for a sound and disposing mind, and testamentary capacity.** When ha- bitual insanity has been established, the burden is on the proponent of the will to show that it was executed during a lucid interval.*^ The proof of such a lucid interval must Greene, 145 111. 264, 33 N. E. 941; James White Memorial Home v. Haeg, 204 111. 422, 68 N. E. 568; Bundy v. McKnight, 48 Ind. 502, 511; In re Harvey's Will (Iowa) 94 N. W. 559; Shailer v. Bum- stead, 99 Mass. 112; Von De Veld V. Judy, 143 Mo. 348, 44 S. W. 1117; StuU V. StuU, 1 Neb. (Unof.) 380, 389, 96 N. W. 196. 44 Hall V. Warren, 9 Ves. Jun. 605; In re Miller's Will, 3 Boyce (26 Del.) 477, 85 Atl. 803; In re Gangwere's Estate, 14 Pa. St. 417, 53 Am. Dec. 554. 45 Cartwright v. Cartwright, 1 Phillim. 90, 100; Nichols v. Binns, 1 Sw. & Tr. 239; Steed v. Galley, 1 Keen 620; Baker v. Butt, 2 Moore P. C. C. 317; Barry v. But- lin, 2 Moore P. C. C. 480; Martin V. Johnston, 1 Fost. & F. 122; White V. Driver, 1 Phillim. 84; Tatham v. Wright, 2 Russ. & M. 31; Boughton v. Knight, L. R. 3 P. & D. 64; Kemble v. Church, 3 Hagg. Ecc. 273; Borlase v. Bor- lase, 4 Notes of Cas. 106; Saxon v. Whitaker, 30 Ala. 237; Rush v. Megee, 36 Ind. 69; Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 701; Halley v. Webster, 21 Me. 461; Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666; Crown- Inshield v. Crowninshield, 2 Gray (Mass.) 524; Whitenach v. Stry- ker, 2 N. J. Eq. S; Goble v. Grant, 3 N. J. Eq. 629; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144, 159, 4 Am. Dec. 330; Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Am. Dec. 402; Delafield v. Parish, 25 N. Y. 9; Gombault v. Public Admr., 4 Bradf. (N. Y.) 226; Boyd v. Eby, 8 Watts. (Pa.) 66. In Cartwright v. Cartwright, 1 Phillim. 90, Sir William Wynne says: "If you can establish that the party afflicted habitually by a malady of the mind has intermis- sions, and if there was an inter- mission of the disorder at the time of the act, that being proved is sufficient, and the general habit- ual insanity will not affect it; but the effect of it is this, it inverts the order of proof and of presumption, for, until proof of habitual insan- ity is made, the presumption i,s that the party agent like all hu- MENTAL CAPACITY. 457 be clear.*® In those countries where the civil law prevails, proof of legal capacity in cases of partial insanity is extremely difficult, and the courts look with disfavor upon evidence which is computed by days and hours in order to show a lucid interval during which the testator had testamentary capacity.*'^ § 339. The Law Deals With the Effect of the Mental Derange- ment, Not Its Cause. The unsoundness of mind which the law contemplates as incapacitating a testator from making a valid testa- mentary disposition of his property under the rule before announced, may be the result of many causes, such as mental diseases, senile dementia, fevers, injuries, drugs. man creatures was rational; but where an habitual insanity in the mind of the person who does the act Is established, there the party who would take advantage of the fact of an interval of reason must prove it." 46 White V. Driver, 1 Philllm. 84; Ayrey v. Hill, 2 Addams Eoc. 206, 210; Brogden v. Brown, 2 Addams Ecc. 441, 445. In White V. Driver, 1 Philllm. 84, Sir John Nicholl, after referring to proof that the testatrix had been insane for several years prior to the execution of her will, and In admitting the instrument to probate, says: "The evidence, however, does not preclude the proof of lucid intervals, although U raises a strong presumption against sanity, for I agree with counsel for the next of kin that, wherever previous insanity is proved, the burden of proof is shifted, and it lies on those who set up the will to adduce satis- factory proof of sanity at the time the act was done. It is scarcely possible, indeed, to be too strong- ly impressed with the degree of caution necessary to be observed in examining the proof of a lucid interval; but the law recognizes the acts done during such an in- terval as valid, and the law must not be defeated by any over- strained demands of the proof of the fact." 47 In re Martin's Will, 82 Misc. Rep. 574; 144 N. Y. Supp. 174, 187. See, also. In re Van Ness' Will, 78 Misc. Rep. 592, 139 N. Y. Supp. 485, 493; In re Swartz' Will, 79 Misc. Rep. 388, 139 N. Y. Supp. 1105, 1113. 458 COMMENTARIES ON THE LAW OP WILLS. intoxicants, or the like. The last mentioned factors are the various causes, but with them the law is not directly concerned. It is the effect with which the law must deal, from whatsoever source it may have sprung, and it is the quantity of the effect which the law must judge.*^ § 340. Effect of Paxtial Loss of Memory. The memory of a testator may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he has been intimately acquainted ; he may at times ask idle questions and repeat those which had before been asked and answered ; yet his understanding may be suflSciently sound for many of the ordinary transactions of life.*® Thus, great mental and physical weakness, accompanied by a partial failure of memory, caused by paralysis, is said not to be in itself a sufficient indication of testamentary incapacity.^" Yet 48 Stedham v. Stedham, 32 Ala. tal capacity of his neighbors, does 525 ; Naylor v. McRuer, 248 Mo. not indicate testamentary incapac- 423, 154 S. W. 772, 784; Garrison ity.— Rice v. Rice, 50 Mich. 448, V. Blanton, 48 Tex. 299. 15 N. W. 545. 40 Taylor v. Kelly, 31 Ala. 59, Testamentary incapacity is not 98, 68 Am. Dec. 150; Ring v. Liaw- shown by a mere inability to re- less, 190 111. 520, 60 N. E. 881; member the names of relatives Watson V. Watson, 2 B. Mon. not immediately in the testator's (Ky.) 74; Den v. Vanclere, 5 N. J. presence. — Kramer v. Weinert, 81 I.. 589; Stackhouse v. Horton, 15 Ala. 414, 1 So. 26. N. J. Eq. 203, 206; Matter of Don- Want of memory, vacillation of ohue, 97 App. Dlv. (N. Y.) 205, 89 purpose, credulity, vagueness of N. Y. Supp. 871; Napfle's Estate, thought, all may exist in connec- 134 Pa. St. 492, 19 Atl. 679. tion with testamentary capacity. 50 Hall V. Dougherty, 5 Houst. — Hopple's Estate, 13 Phila. (Pa.) (Del.) 435. 259. Weakness, or occasional foolish- A testator seventy-five years of ness, or lacking the average men- age, afQicted with softening of the MENTAL CAPACITT. 459 it is not sufficient that a testator be able to answer famil- iar and usual questions ; lie must be able to make a dispo- sition of his property with understanding.^^ The mind of a testator may be broken, impaired and shattered by disease, as is often the case with those who reach advanced age; yet if he comprehend the act he is performing, and have the strength of mind to form a feed intention and to summon his scattered and enfeebled thoughts so as to enable him to execute that intention, he is not incapacitated to make a will. If he can not do this, it matters not whether such incapacity is the effect of a disordered or of an enfeebled intellect.''^ Evidence of partial failure of memory, forgetfulness and the like, however, is admissible and is to be considered in connec- tion with all other evidence in the case, in determining the question of testamentary capacity.®* § 341. Infirmities of Old Age Do Not Establish Testamentary- Incapacity. Mere lapse of years can not establish incapacity; no one can live so long that he will, for such reason, be ren- dered incapable of making a testamentary disposition of brain and fits of neurasthenic Ga. 40; Shropshire v. Reno, 5 J. prostration, has been considered J. Marsh (Ky.) 91; Brown v. Tor- capable of making a simple will rey, 24 Barb. (N. Y.) 583; Boyd during intervals in which his mini v. Eby, 8 Watts (Pa.) 66, 70; Mc- was reasonably clear. — In re SIl- Taggart v. Thompson, 14 Pa. St. verthom, 68 Wis. 372, 32 N. W. 149. 287. 52 Stackhouse v. Horton, 15 N. 51 Marsh v. Tyrrell, 2 Hagg. J. Eq. 202, 205. Ecc. 84, 122; Blewitt v. Blewitt, 4 See, also, Bever v. Spangler, 93 Hagg. Ecc. 410, 419; Winchester's Iowa 576, 61 N. W. 1072. Case, 6 Coke 23; Harrison v. Row- RS Ring v. Lawless, 190 111. 520, an, 3 Wash. C. C. 580, 586, Fed. 60 N. E. 881; Bush v. Delano, 113 Cas. No. 6141; Hall v. Hall, 18 Mich. 321. 71 N. W. 628. 460 COMMENTABIES ON THE LAW OF WELLS. Ms estate.'* No presumption of incapacity arises merely because of advanced years.®' The infirmities of old age, weakness of body and irritability of temper, are not, in themselves, sufficient to establish a lack of testamentary capacity.^® The fact that the testator was of advanced years and that his sight was failing, will not, standing 54 Townsend v. Bogart, 5 Redf. (N. Y.) 93; Matter of Henry, 18 Misc. Rep. 149, 41 N. Y. Supp. 1096; In re Carpenters Will, 145 N. Y. Supp. 365, 371. It has been truly said: "Old age is solitary, and often the only way in which an old person can com- mand the attention to his infirmi- ties that they merit is the right of disposition of his property by will." Old age alone does not de- prive one of the capacity to make a will, but on the contrary is a reason for protection. — In re Car- penter's Will, 145 N. Y. Supp. 365, 371; Maverick v. Reynolds,, 2 Bradf. (N. Y.) 360; Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 148. The power to will property gives encouragement to industry; it stimulates accumulation; it fur- nishes new motives to the love of the parent and Increases the strength of paternal authority; it .-idds new incentives to obedience to the child, and provides addi- tional assurance against his mis- conduct or ingratitude. By ex- tending the power of the present generation over the next, it en- ables old age to command kind- ness and respect, and strengthen the ties which bind it to youth. — In re Carpenter's Will, 145 N. \. Supp. 365, 371. See, also, Campbell v. Campbell, 130 111. 466, 22 N. E. 620, 6 L. R. A. 167; Deering v. Adams, 37 Maine 264. 55 Creely v. Ostrander, 3 Bradf. (N. Y.) 107; In re Carpenter's Will, 145 N. Y. Supp. 365, 371. 56 Estate of MacCrellish, 167 Cal. 711, 141 Pac. 257, L. R. A. 1915A, 443; Estate of Clark, 170 Cal. 418, 423, 149 Pac. 828; Geiger V. Bardwell, 255 111. 320, 99 N. E. 582; Wiley v. Gordan, 181 Ind. 252, 104 N. B. 500; Philpott v. Jones, 164 Iowa 730, 146 N. W. 859; In re Ferris' Estate, (Mich.) 157 N. W. 380; Jackson v. Hardin, 83 Mo. 175; Turner v. Butler, 253 Mo. 202, 161 S. W. 745; Byrne v. Fulkerson, 254 Mo. 97, 162 S. W. 171; In re McCabe's Will, 75 Misc. Rep. 35, 134 N. Y. Supp. 682; In re D'Arschot's Will, 82 Misc. Rep. 16, 143 N. Y. Supp. 732; Phillips v. Flagler, 82 Misc. Rep. 500, 143 N. Y. Supp. 798; In re Crockett's Will, 86 Misc. Rep. 631, 149 N. Y. Supp. 477; In re Neil's Estate, 90 Misc. Rep. 537, 153 N. Y. Supp. 647; Howard v. Howard, 112 Va. 566, 72 S. E. 133. MENTAL CAPACITY. 461 alone, justify setting aside his will.*''' Neither feebleness of intellect nor mere weakness of mind, whether the result of injury, disease or other causes, nor partial failure of mind or memory, even to a considerable extent, will in themselves prove testamentary inability.^^ The fact that the testator was old and in feeble health, or that his mind had failed to such an extent as to render him inca- pable of properly transacting complex business matters, or that he had excluded from benefiting under his will some or all of his legal heirs, will not, alone, defeat his testament.^® § 342. The Same Subject. Great age, feebleness, infirmity, or disease, none of them, standing alone, wiU render a testator incapable of disposing of his estate by will.*** It is immaterial how For examples, see: Lowe v. Williamson, 2 N. J. Bq. 82, sustain- ing the will of one eighty years old, deaf, and of defective vision; In re Reed's Will, 2 B. Mon. (Ky.) 79, sustaining the will of a tes- tator of eighty, palsied, and un- able to write or to feed himself; Wilson V. Mitchell, 101 Pa. St. 495, sustaining a will, reasonable in its provisions, of a testator over one hundred years of age, blind, par- tially deaf, and of defective mem- ory. 57 Estate of Motz, 136 Cal. 558, 69 Pac. 294; Estate of Dole, 147 Cal. 188, 81 Pac. 534; In re Pack- er's Estate, 164 Cal. 525, 129 Pac. 778. 68 Rodney v. Burton, 4 Boyce (27 Del.) 171, 86 Atl. 826, 828; V^'ebber v. Sullivan. 58 Iowa 260, 12 N. W. 319; Meeker v. Meeker, 74 Iowa 352, 7 Am. St. Rep. 489, 37 N. W. 773; Perkins v. Perkins, 116 Iowa 253, 90 N. W. 55; Phil- pott V. Jones, 164 Iowa 730, 146 N. W. 859, 861. 59 In re Allison's Estate, 104 Iowa 130, 73 N. W. 489; In re Evans' Estate, 114 Iowa 240, 86 N. W. 283; Philpott v. Jones, 164 Iowa 730, 146 N. W. 859, 861. See, also, citations in preceding note. 00 Estate of Motz, 136 Cal. 558, 562, 69 Pac. 294; Estate of Morey, 147 Cal. 495, 503, 82 Pac. 57; Es- tate of Webber, 15 Cal. App. 224, 114 Pac. 597; Hackett's Estate, 33 S. D. 208, 145 N. W. 437. The fact that a testator is in a dying condition and extremely, physically enfeebled when he makes his will does not show in-^ 462 COMMENTARIES ON THE LAW OP WILLS. great the testator's physical and bodily afflictions may be if he is of such sound mind as the law considers neces- sary to testamentary capacity."^ But from whatever cause, if the mental intelligence of the testator does not measure up to the rule, he can not make a valid will ; and although the infirmities of old age do not establish a lack of testamentary capacity, yet lack of capacity is none the less fatal because resulting from such causes.^* §343. The Same Subject; A Question of Fact. The wills of aged persons, and all the circumstances attending their execution, should be scrutinized by the capacity, but such testimony gains significance where there is also evidence of mental feebleness. — In re Doolittle's Estate, 153 Cal. 29, 94 Pac. 240. The fact that the testator may have been mentally weak does not deprive him of testamentary ca- pacity so long as he can reason- ably comprehend the nature of his testamentary act, the extent of his estate, and the claims upon him of his family and friends. — Hanra- han V. O'Toole, 139 Iowa 229, 117 S. W. 675. Old age and extreme illness do not in themselves show testamen- tary capacity. — In re Webber's Estate, 15 Cal. App. 224, 114 Pac. 597; Lindsey v. Stephens, 229 Mo. 600, 129 S. W. 641. Although the mind of the testa- trix had become enfeebled because of physical illness, such fact was held insufficient to show mental Incapacity where it was shown ^hat she knew what her property consisted of, the amount of her income, the natural expectancies of those about her, and had trans- acted most of her business her- self.— Southslde Trust Co. V. Mc Grew, 219 Pa. 606, 69 Atl. 79. A man seventy years of age, capable of attending to the affairs of life, but unable to read or write, has testamentary capacity. Wood's Exr. V. Wood, 109 Va. 470, 68 S. E. 994. 61 Porter v. La Rue, (Mich.) 158 N. W. 851; In re Hobbin's Estate, 41 Mont. 39, 108 Pac. 7; In re Eddy, 32 N. J. Eq. 701; Merrill v. Rush, 33 N. J. Eq. 537; Snyder V. Sherman, 23 Hun (N. Y.) 139; In re Ames' Will, 40 Or. 495, 67 Pac. 737; In re Pickett's Will, 49 Or. 127, 89 Pac. 377; Stevens v. Myers, 62 Or. 372, 121 Pac. 434, 126 Pac. 29; State v. Good, man, 133 Tenn. 375, 181 S. W. 312. 62 Byrne v. Fulkerson, 254 Mo. 97, 162 S. W. 171, 178. MENTAL CAPACITT. 463 court ;*'^ and where one has sunken into "second childish- ness and mere oblivion," he can not execute a valid will.** But the testamentary capacity of aged persons is gener- ally a question of fact.®® While senile dementia, or imbe- cility from old age, does not necessarily exclude the pos- sibility of testamentary capacity,"® and although it begins gradually, yet it is progressive in character, and in its advanced stages "the brain is well-nigh stripped of its functions." The difficulty in such cases is to determine how far the affliction must progress before it has blotted out the understanding necessary to make a will.®^ § 344. Insane Delusions Defined. A person may be mentally afflicted as to some subject or object, yet be sane as to all other matters. Such a con- dition does not comprehend a general weakening of the mind, but refers to a mental disturbance regarding some particular subject or some particular object. Such a mental condition is often referred to as monomania or partial insanity, or that the person afflicted is suffering from a delusion or an hallucination. A person may be competent to conduct his business and to rationally attend esKinleside v. Harrison, 2 Phil- Hagg. Ecc. 142; Stevens v. Van 11m. 449, 461 ; Griffiths t. Rohlns, Cleve, 4 Wash. C. C. 262, Fed. Cas. • Madd. 192; Potts v. House, 6 Ga. No. 13412; Watson v. Watson, 2 324, 50 Am. Dec. 329; Kirkwood v. B. Mon. (Ky.) 74; Andress v. Gordon, 7 Rich. (S. C.) 474, 62 Weller, 3 N. J. Eq. (2 Green Ch.) Am. Dec. 418. 605; Nailing v. Nailing, 2 Sneed 64 Lewis V. Pead, 1 Ves. Jun. 19; (Tenn.) 630. Bird V. Bird, 2 Hagg. Ecc. 142; 66 Wisner v. Chandler, 95 Kan. Sloan V. Maxwell, 3 N. J. Eq. 563, 36, 147 Pac. 849. 581; Van Alst v. Hunter, 5 Johns. 67 Bensberg v. Washington Uni- Ch. (N. y.) 148. versity, 251 Mo. 641, 658, 158 S. W. 65 Mackenzie v. Handasyde, 2 330; Byrne v. Fulkerson, 254 Mo. Sagg. Ecc. 211; Bird v. Bird, 2 97, 162 S. W. 171, 178. 464: COMMENTABIES ON THE LAW OF WILLS. to the ordinary affairs of life, yet be under a dementia as to one or more particular subjects, objects or applica- tions. He may possess some irrational idea which would not be entertained by a sane thinking person. The mind may be so disordered that it imagines something to exist, or imputes existence to an imaginary offense. A delusion has been described as the spontaneous product of the subjective processes of a disordered intellect, inducing a belief without any support in extrinsic evidence. If spon- taneity is lacking, and extraneous reason, however slight, be present to induce the belief, such reason as would arrest the attention of a deliberative mind, there is no delusion. An error of judgment upon facts does not con- stitute a delusion, however imperfect may be the process of reasoning, even though there may have been a mis- apprehension of facts and an unreasonable conclusion drawn.®^ An insane delusion is generally accompanied 68 Dew V. Clark, 1 Addams Ecc. when a person imagines a certain 279, 3 Addams Ecc. 79; Green- state of facts exists which has no wood's Case, cited in 13 Ves. Jun. reality except in the imagination 89; Stackhouse v. Horton, 15 N. J. of the party, and which false im- Eq. 202, 228; Stevens v. Myers, pression can not he removed by 62 Or. 372, 121 Pac. 434, 438, any amount of reasoning and ar- 126 Pac. 29; In re Diggin's Estate, gument. See: In re Reardon's 76 Or. 341, 149 Pac. 73; Snell Estate, 13 CaJ. App. 313, 109 Pac. V. Weldon, 243 111. 496, 90 N. B. 629; Bundy v. McKnight, 48 Ind. 1061; Zinkula v. Zinkula, 171 Iowa 502, 512; Coffey v. Miller, 160 Ky, 287, 154 N. W. 158; Fulton v. 415, 169 S. W. 852; Merrill v. Rol- Freeland, 219 Mo. 494, 131 Am. St ston, 5 Redf. (N. Y.) 220. Rep. 576, 118 S. W. 12; In re A belief in any purely esoteric Herr's Estate, 251 Pa. St. 223, or abstract subject is speculative 96 Atl. 464; In re Alexander's Es- and incapable of disproof by facts, tate, 246 Pa. St. 58, Ann. Cas. and therefore is not regarded as 1916C, 33, 91 Atl. 1042; Irwin v. an insane delusion; as, for in- Lattln, 29 S. D. 1, Ann. Cas. 1914C, stance, the belief of a parent that 1044, 135 N. W. 759. a child does not love him as much An insane delusion is present as she ought to or as much aa MENTAL CAPACITY. 465 by eccentricity, irritability, violence, suspicion, exagger- ation and inconsistency; but retention of memory, display of talents, enjoyment of amusements and the appearance of rationality on various subjects are not inconsistent vsdth unsoundness of mind in other particulars.®® § 345. Unless the Provisions of the Will Are Affected by the Insane Delusion, the Instrument Is Not Invalidated. All insane delusions do not render one incapable of making a will. A testator may have delusions regarding the parent desires, can not be said as a matter of law to be an insane delusion, yet the belief of a parent that a child does not love him at all may be an insane delusion, since It would be possible of dis- proof. — Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. See, also, Lefflngwell v. Bettinghouse, 151 Mich. 513, 115 N. W. 731; Fulton v. Freeland, 219 Mo. 494, 131 Am. St. Rep. 576, 118 S. W. 12. Disclaiming paternity of and dis- inheriting his children, where the testator founded his belief upon false testimony, does not estab- lish an insane delusion, although the rule would be the opposite if there were no foundation for the belief. — Morgan v. Morgan, 30 App. D. C. 436. It is not evidence of an insane delusion where a testator stub- bornly clings to a belief contrary to a decision of the court estab- lishing his common law marriage, he yielding to the force of the judgment. — Hutchinson v. Hutch- inson, 250 111. 170, 95 N. E. 143. I Com. on Wills— 30 Faulty reasoning is not of itself evidence of a general mental de- rangement. — Conner v. Skaggs, 213 Mo. 334, 111 S. W. 1132. Where the will of a testator is the result of an unfounded delu- sion that his children had de- prived him of certain property, such will should be rejected. — Holton V. Cochran, 208 Mo. 314, 106 S. W. 1035. But hatred toward children be- cause of their sympathy with the wife of the testator, with whom he had not been on friendly terms, does not prove an insane delusion. — ^Bauchens v. Davis, 229 111. 557, 82 N. E. 365. Moral insanity not accompanied by delusions does not render one incapable of the testamentary act. — Frere v. Peacocke, 1 Rob. Ecc. 442; Boardman v. Woodman, 47 N. H. 120; Forman's Will, 54 Barb. (N. Y.) 274. 69 Dew V. Clark, 3 Addams Ecc. 79; Rodney v. Burton, 4 Boyce (27 Del.) 171, 86 Atl. 826, 830. 466 COMMENTARIES ON THE LAW OP WILLS. matters which do not affect or concern his testamentary- act and which have no influence upon the disposition which he makes of his estate. In such a case, if the testator is otherwise mentally qualified, the existence of such delusions would not invalidate his will.'^" Since the decision of Sir John NichoU,'^^ the question as to the effect of a delusion or an hallucination may be regardea as settled. The authorities are uniform that an instru- ment, the provisions of which were caused or affected by an insane delusion, can not be a will. Although one may be possessed of testamentary capacity, yet if he executes a document as a will because, for instance, of some imag- inary wrong or offense which has beclouded his reason and which causes him to disinherit a daughter or a son, such alleged will is void.''^ And the converse of the 70 Banks v. Goodfellow, L. R. 5 Q. B. 549; Boughton v. Knight, L. iR. 3 P. & D. 64; Zinkula v. ZInkula, 171 Iowa 287, 154 N. W. 158; Eoohe v. Nason, 105 App. Div. 256, 93 N. Y. Supp. 565, affirmed 185 N. Y. 128, 77 N. B. 1007; Irwin v. Lattin, 29 S. D. 1, Ann. Cas. 1914C, 1044, 135 N. W. 759. 71 Dew V. Clark, 1 Addams Boo. 279, 3 Addams Bcc. 79. 72 Cotton V. Ulmer, 45 Ala. 378, 6 Am. Rep. 703; Estate o£ Red- field, 116 Cal. 637, 652, 48 Pac. 794; Bstate of Scott, 128 Cal. 57, 62, 60 Pac. 527; Bstate of Ken- drick, 130 Cal. 360, 364, 62 Pac. 605; Bstate of Reardon, 13 Cal. App. 313, 109 Pac. 629; Lucas v. Parsons, 24 Ga. 640, 71 Am. Dec. 147; Bvans v. Arnold. 52 Ga. 169; Bradley v. Onstott, 180 Ind. 687, 103 N. B. 798, 800; Coffey V. Miller, 160 Ky. 415, Ann. Cas. 1916C, 30, 169 S. W. 852; Haines v. Hayden, 95 Mloli. 332, 35 Am. St. Rep. 566, 54 N. W. 911; Rivard v. Rivard, 109 Mich. 98, 63 Am. St. Rep. 566, 66 N. W. 681; Thayer v. Thayer, 188 Mich. 261, 154 N. W. 32; Benoist v. Murrin, 58 Mo. 307; Stackhouse v. Horton, 15 N. J. Bq. 202; Taylor v. Trich, 165 Pa. St. 586, 44 Am. St. Rep. 679, 30 AO. 1053; Bstate of Alexander, 246 Pa. St. 58, Ann. Cas. 1916C, 33, 91 Atl. 1042; In re Kerr's Estate, 251 Pa. St. 223, 96 Atl. 464. The hallucination or delusion must bear directly upon and influ- ence the creation and terms of the testamentary instrument. It would not be sufficient, to avoid a will, MENTAL CAPACITT. 467 doctrine is equally well settled. Where the partial insan- ity or the delusions or hallucinations which are the off- spring of it, can not reasonably be conceived to have biased the testator nor to have influenced him in consid- to show that the testator believed that the moon was made of green cheese, but If it should be estab- lished, in addition thereto, that be- cause of this belief he devised or bequeathed his property in a way which, saving for the belief he would not have done, a case is pre- sented where the abnormality of mind has a direct influence upon the testamentary act. — In re Chev- allier's Estate, 159 Cal. 161, 113 Pac. 130, 133; In re Purcell's Es- tate, 164 Cal. 300, 128 Pac. 932, 937. Where the testator had mental capacity to know how he wanted his will drawn, but not to transact business generally in a sane man- ner, on account of an insane delu- sion; in other words, where he knew what he was doing but had an insane reason for doing it, he does not possess testamentary ca- pacity. — Harbison v. Beets, 84 Kan. 11, 113 Pac. 423. Where a testator, eighty years of age, had suffered from sun- stroke and from delirium tremens, and was under a delusion that his wife and son were trying to kill him, it was considered sufficient evidence of testamentary incapac- ity.— Edge V. Edge, 38 N. J. Bq. 211. But a delusion as to the tes- tator's physical condition, or the cause thereof, does not affect his capacity. — HoIUnger v. Syms, 37 N. J. Eq. 221. And a delusion that the testator's wife was unchaste and his son illegitimate has under certain circumstances been held not to have influenced the provi- sions of the will. — In re Cole's Will, 49 Wis. 179, 5 N. W. 346. A testator's belief that his daughter was a witch was held insuflicient to set aside a will discriminating against her and another child, where it appeared that the ground of discrimination was their disobe- dience to their parent; and that the testator, although believing in witchcraft at the time of making the will, did not entertain the delu- sion respecting his daughter until after his will had been made. — Schildnecht v. Rompf, 9 Ky. Law Rep. 120, 4 S. W. 235. Yet appar- ently in opposition to this rule, in New York, a delusion that his body was to be preserved through all time, in connection with other eccentricities, was considered a suflicient cause for rejecting the will of one who manifested busi- ness capacity in ordinary transac- tions. — Morse v. Scott, 4 Dem. Sur. (N. Y.) 507. The fact that an aged testator was sick and often deli- rious with fever, does not show mental incapacity. — Clark's Heirs v. Ellis, 9 Or. 128. 468 COMMENTABIES ON THE LAW OF WILLS. ering the claims upon him of those who are the natural objects of his bounty, then the mental unsoundness is not of such a degree as to render him incapable of making his will. Unless the delusion or hallucination as to facta is such as to enter in some way into the particular dispo- sitions of the will of the deluded person, such delusion or hallucination will not in itself afford controlling evidence of testamentary incapacity.'^* 73 Boughton V. Knight, L. R. 3 P. & D. 64; Banks v. Goodfellow, L. R. 5 Q. B. 549; Smee v. Smee, L. R. 5 Prob. Div. 84; Cotton v. XJlmer, 45 Ala. 378, 6 Am. Rep. 703; Gardner v. Lamback, 47 Ga. 133, 169; Dunham's Appeal, 27 Conn. 192; Crum v. Thornley, 47 111. 192; Hite V. Sims, 94 Ind. 333, 335, 336; Harbison v. Boyd, 177 Ind. 267, 96 N. E. 587; Zinkula v. Zinkula, 171 Iowa 287, 154 N. W. 158; James v. Langdon, 7 B. Mon. (46 Ky.) 193; Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473; Brown v. Ward, 53 Md. 376, 36 Am. Rep. 422; Era- ser V. Jennison, 42 Mich. 206, 3 N. W. 882; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Benoist v. Mur- rln, 58 Mo. 307; Boardman v. Woodman, 47 N. H. 120; Lee v. Scudder, 31 N. J. Eq. 633; Coit V. Patchen, 77 N. Y. 533; Dobie v. Armstrong, 160 N. Y. 584, 55 N. B. 302; La Bau v. Vanderbilt, 3 Redf. Sur. (N. Y.) 384; Thompson v. Quimby, 2 Bradf. Sur. (N. Y.) 449; s. c. sub. nom. Thompson v. Thomp- son, 21 Barb. (N. Y.) 107; Bonard's Will, 16 Abb. Pr. N. S. (N. Y.) 128; American Seaman's Friend Society V. Hopper, 43 Barb. (N. Y.) 625; Lathrop V. American Board of For- eign Missions, 67 Barb. (N. Y.) 590; Matter of Donohue's Will, 97 App. Div. 205, 89 N. Y. Supp. 871; Matter of Hock's Will, 74 Misc. Rep. 15, 129 N. Y. Supp. 196; In re Campbell's Will, 136 N. Y. Supp. 1086, 1100; In re Carpenter's Will, 145 N. Y. Supp. 365, 372; Boyd V. Eby, 8 Watts (Pa.) 66; Tawney v. Long, 76 Pa. St. 106; Taylor v. Trich, 165 Pa. St. 586, 44 Am. St. Rep. 679, 30 Atl. 1053; Thomas v. Car- ter, 170 Pa. St. 272, 50 Am. St. Rep. 770, 33 Atl. 81; McGovran's Estate, 185 Pa. St. 203, 39 Atl. 816; Hem- ingway's Estate, 195 Pa. St. 291, 78 Am. St. Rep. 815, 45 Atl. 726; Englert v. Englert, 198 Pa. St. 326, 82 Am. St Rep. 808, 47 Atl. 940; Buchanan v. Pierle, 205 Pa. St. 123, 97 Am. St. Rep. 725, 54 Atl. 583; Appeal of Ross, (In re Hart's Estate) 243 Pa. St. 119, 89 Atl. 816; In re Herr's Estate, 251 Pa. St. 223, 96 Atl. 464; Irwin v. Lat- tin, 29 S. D. 1, Ann. Cas. 1914C, 1044 135 N. W. 759; Gass' Heirs v. Gass' Exrs., 3 Humph. (Tenn.) MENTAL CAPACITY. '469 §346. Unnsual Religious Beliefs, Spiritualism, and the Like, in Themselves Do Not Establish Incapacity. The law takes no account of a man's religion. It can not say that one is sane because he believes in the dogmas which are generally accepted by those about him, and that another is insane because he announces or accepts some doctrine, new or old, which may shock the sensibilities of a devout believer in a so-called orthodox faith. However, peculiarities in this regard may be admitted in evidence, and if it can be shown that the testator's will was wholly the result of some peculiar religious belief without which the will would not have been made, his testamentary capacity may be doubted.'^* But it can not be said as a matter of law that a person is insane because he holds the belief that he can communicate with spirits, and is advised and directed by them in his business transactions and in the disposition of his propertyJ^ A peculiar belief 278; Cole's Will, 49 Wis. 179, 5 the testator lacked testamentary N. W. 346. capacity or was unduly Influenced. T4 Whltham v. Hilton, 78 Wash. — O'Dell v. Goff, 149 Mich. 152, 119 446, Ann. Gas. 1916B, 260, 139 Pac. Am. St. Rep. 662, 10 L. R. A. 209. (N. S.) 989, 112 N. W. 736. On an issue of testamentary ca- V5 Lyon v. Home, L. R. 6 Eq. pacity involving a belief In spirit- Cas. 655; Matter of Spencer, 96 ualism, it is error to exclude Cal. 448, 31 Pac. 453; Owen v. evidence that from the standpoint Crumbaugh, 228 111. 380, 119 Am. of a spiritualist, there was nothing St. Rep. 442, 10 Ann. Cas. 606, 81 irrational in the fact that the tes- N. E. 1044; Otto v. Doty, 61 Iowa tator believed that a medium in a 23, 15 N. W. 578; Raison v. Raison, trance could cause him harm. Al- 148 Ky. 116, 146 S. W. 400; Brown though evidence of the truth or v. Ward, 53 Md. 376, 36 Am. Rep. falsity of spiritualistic beliefs are 422; Woodbury v. Obear, 7 Gray inadmissible, yet one may be so (Mass.) 467, 470; Dunham v. blindly governed by spiritualistic Holmes (Mass.), 113 N. E. 845; communications as to make his McClary v. Stull, 44 Neb. 175, 62 will, which is the result thereof, N. W. 501; Middleditch v. Wil- invalid, whether it is claimed that Hams, 45 N. J. Eq. 726, 4 L. R. A. 470 COMMENTAEIES ON THE LAW OF WILLS. as to a future state,''* or in other matters,'^'' a belief in mesmerism, clairvoyance, magic, and occasional diabolic visitations,''^ in witchcraft,''® or in other peculiar ideas,*" has in each instance been decided to be insufficient, stand- ing alone, to show insanity or want of testamentary capacity. § 347. Effect of Evidence of Eccentricities. Eccentricity differs from monomania. The former is a conscious aberration and consists of peculiarities which are indulged in in defiance of popular sentiment, whereas monomania is unconscious.*^ As we have before shown, a testator may be competent to make a will and yet not have sufficient mental capacity to properly transact busi- ness.*^ So personal eccentricities and oddities are not, iu themselves, proof of such mental disorder or deteriora- 738, 17 Atl. 826; La Bau v. Van- Thompson v. Thompson, 21 Barb, derbilt, 3 Redf. Sur. (N. Y.) 384; (N. Y.) 107; Denson v. Beazley, 34 Irwin V. Lattin, 29 S. D. 1, Ann. Tex. 191. Cas. 1914C, 1044, 135 N. W. 759; 78 Turner T. Hand, 3 Wall. Jr. In re Slebs' Estate, 70 Wash. 374, (U. S. C. C.) 88, 120, Fed. Cas. No. Ann. Cas. 1913B, 125, 126 Pac 912; 14257; Thompson v. Thompson, 21 In re Smith's Will, 52 Wis. 543, 38 Barb. (N. Y.) 107. Am. Rep. 756, 8 N. W. 616, 9 N. W. 79 Addington v. Wilson, 5 Ind. 665. 137, 61 Am. Dec. 81; Schild (Schild- Belief in spiritualism is not evi- necht) v. Rompf, 9 Ky. Law Rep. dence of an Insane delusion. — 120, 4 S. W. 235; Kelly v. Miller, Owen V. Crumbaugh, 228 111. 380, 39 Miss. 17, 19. 119 Am. St. Rep. 442, 10 Ann. Cas. so Owen v. Crumbaugh, 228 111. 606, 81 N. E. 1044. 380, 119 Am. St. Rep. 442, 10 Ann. 76 Bonard's Will, 16 Abb. Pr. Cas. 606, 81 N. E. 1044 ; Thompson N. S. (N. Y.) 128. V. Thompson, 21 Barb. (N. Y.) 107. 77 Addington v. Wilson, 5 Ind. 8i Wharton v. Stille's Med. Jur., 137, 61 Am. Dec. 81; Schild (Schild- §29n; Frere v. Peacocke, 1 Rob. necht) V. Rompf, 9 Ky. Law Rep. Ecc. 442. But, see, Nichols v. 120, 4 S. W. 235; Thompson v. Binns, 1 Sw. & Tr. 239. Quimby, 2 Bradf. Sur. (N. Y.) 449; 82 See, ante, § 332. MENTAIi CAPACITT, 471 tion as renders one incompetent of disposing of his estate by ■vpill.^* Eccentricities which have no necessary refer- ence to or connection with a testamentary disposition of property, but are such as are often found in those of advanced years, do not prove mental incompetency.** Those eccentricities which do not affect the power of accumulating and disposing of property do not establish testamentary incapacity.** Thus, the fact that the dece- dent may have been eccentric, erratic, unreasonable, slov- enly in dress, and given to peculiarities of speech and manner, is not sufficient to render his will invalid because of lack of capacity.** Herein it must be remembered that we have been dealing with the weight of evidence, which 83 Austen v. Graham, 8 Moore P. C. C. 493 ; Hutchinson v. Hutch- inson, 152 111. 347, 38 N. E. 926; Bennett v. Hibbert, 88 Iowa 154, 55 N. W. 93; Prentis v. Bates, 93 Mich. 234, 17 L. R. A. 494, 53 N. W. 153; Balak v. Susanka, 182 Mo. App. 458, 168 S. W. 650, 655; Mat- ter of Lewis, 33 N. J. Eq. 219; Lancaster v. Alden, 26 R. I. 170, 58 Atl. 638. 84 Manatt v. Scott, 106 Iowa 203, 68 Am. St Rep. 293, 76 N. W. 717; Woodvllle V. Morrill, 130 Minn. 92, 153 N. W. 131; Archambault v. Blanchard, 198 Mo. 384, 95 S. W. 834; Winn v. Grier, 217 Mo. 420, 117 S. W. 48; McClary v. StuU, 44 Neb. 175, 62 N. W. 501. 85 Converse v. Mix, 63 Wash. 318, 115 Pac. 305. Evidence that the testatrix was queer and eccentric and subject to "spells" is Insuflacient to raise a question for the jury. — ^In re Kerr's Estate, 251 Pa. St. 223, 96 Atl. 464. Fretfulness and a suspicious, ir- ritable temper (In re Blakely's Will, 48 Wis. 294, 4 N. W. 337), and wilfulness and jealousy (Coit V. Patchen, 77 N. Y. 533), have been decided to be insufficient, in themselves, to establish want of testamentary capacity. 86 Church of St. Vincent de Paul v. Branan, 97 Minn. 349, 107 N. W. 141; Schleider v. Gergen, (In re Latto's Estate) 129 Minn. 248, 152 N. W. 541; Hartwell v. McMaster, 4 Redf. (N. Y.) 389; Matter of Murphy, 41 App. Div. 153, 58 N. Y. Supp. 450; In re Schober's Will, 90 Misc. Rep. 230, 154 N. Y. Supp. 309, 314; In re McDermott's Will, 90 Misc. Rep. 526, 154 N. Y. Supp. 923, 927; Morgan's Estate, 219 Pa. St. 355, 68 Atl. 953; In re Blakely's Will, 4S Wis. 294, 4 N. W. 337. 472 COMMENTAEIBS ON THE LAW OF WILLS. does not contemplate that the facts above mentioned may not be introduced in evidence. Although, standing alone, they may not be of sufficient weight to establish testa- mentary incapacity, yet they may be considered in con- nection -with, other matters and in that relation have added importance.*'^ Mental incapacity is indicated by proof of acts, declarations and conduct inconsistent with rationality or with the character and previous habits of the person. Thus a marked change in habits, thoughts and actions is evidence strongly tending to prove mental unsoundness.** § 348. Deafness, Dumbness, and Blindness. According to Swinburne, those who were born deaf and dumb could make a will only when they were able by means of writing or signs to make known their desires, and it was further shown that they understood the nature of a testament. If the affliction came later in life a testa- tor might write his will in his own hand, but if he could not write, then the same rule would apply as if he had been born so afflicted.*® A blind man could make a nun- cupative will by declaring his will before a sufficient number of witnesses, but he could make a testament in writing only when the same was read before witnesses and acknowledged by the testator in their presence to be his last will.9» § 349. The Same Subject. The early rule was that persons born deaf, dumb and blind, since they always lacked the common inlets of 87 Prentis v. Bates, 93 Mich. 234, S9 Swinburne Wills, pt. 2, § 10. 17 L. R. A. 494, 53 N. W. 153. 90 Swinburne Wills, pt 2, § 11. 88 Balak v. Susanka, 182 Mo. App. 458, 168 S. W. 650, 655. MENTAL CAPACITY. 473 understanding, were incapable of having animum tes- tandi, and could not make a valid will.®^ This rule, how- ever, no longer obtains, modern science and invention having found the means whereby such unfortunates may acquire understanding and may communicate their de- sires.®^ The modern rule is that neither blindness,®* nor deafness and dumbness,"* nor both the last mentioned in conjunction with blindness,^® will alone incapacitate a person to perform the testamentary act. If a person so afflicted has testamentary capacity and can communicate his desires, no reason exists for rejecting his will; the difficulty, however, lies in the proof. One who is deaf and dumb, but whose sight remains and who is able to read and write, may express his wishes in his own hand- writing. A blind man may speak and thus express his desires ; those who have been born deaf, dumb and blind have been taught to speak and to comprehend expressions 91 Swinburne, pt. 2, §§ 10, 11; 2 94 Goods of Owston, 2 Sw. & Tr. Bl. Com. *497; Brown v. Brown, 461; Goods of Geale, 3 Sw. & Tr. 3 Conn. 299, 8 Am. Dec. 187; 431; In re Harper, 6 Man. & G. Brower v. Fisher, 4 Johns. Ch. 732; Potts v. House, 6 Ga. 324, 356, (N. Y.) 441; Weir v. Fitzgerald, 2 ^0 Am. Dec. 329; Moore v. Moore, Bradf. (N. T.) 42, 67. ^ Bradf. Sur. (N. Y.) 261; Brower V. Fisher, 4 Johns. Ch. (N. Y.) 92Barnett v. Bamett, 1 Jones ^^^. Christmas v. Mitchell, 38 Eq. (N. C.) 221. j^ C. 535. 93 Mitchell V. Thomas, 6 Moore Compare: Legg v. Myer, 5 Redf. P. C. C. 137; Longchamp d. Good- Sur. (N. Y.) 628, as to loss of fellow V. Fish, 2 Bos. & P. (N. R.) speech from paralysis. 415; Clifton v. Murray, 7 Ga. 564, 95 Oliver v. Berry, 53 Maine 206, 50 Am. Dec. 411; Martin v. Mitch- 87 Am. Dec. 547; Weir v. Fitzger- ell, 28 Ga. 382; Wilson V. Mitchell, aid, 2 Bradf. Sur. (N. Y.) 42; 101 Pa. St. 495; Sharp's Appeal, Gombault v. Public Administrator, 134 Pa. St. 492, 19 Atl. 679; Ray 4 Bradf. Sur. (N. Y.) 226; Rey- V. Hill, 3 Strob. L. (S. C.) 297, 49 nolds v. Reynolds, 1 Speers L. Am. Dec. 647; Neil v. Neil, 1 Leigh (S. C.) 253, 256, 257, 40 Am. Dec. (Va.) 6. 599. 474 COMMENTAEIES ON THE LAW OF WILLS. of others by reading their lips through, the sense of touch. Those who are deaf, dumb or blind are not excluded by the statutes regulating wills as are, in various cases, infants, married women, or persons non compos mentis, unless they come within the last description ; and the fact of the affliction alone does not of itself place them within that class nor raise a presumption of incapacity.®" The question to be determined, if mental capacity exists, is whether the person afflicted knew the nature of the act he was performing and expressed his desires so that they were fully understood. There must be satisfactory evidence that the testator knew and approved the con- tents of the instrument.®^ 96 Potts V. House, 6 Ga. 324, 50 Am. Dec. 329 ; Ray v. Hill, 3 Strob. U (S. C.) 297, 49 Am. Dec. 647. 97 In re Axford, 1 Sw. & Tr. 540 Fincham v. Edwards, 3 Curt. 63 Barton v. Robins, 3 Phlllim. 455n Goodfellow V. Fish, 2 Bos. & P. (N. R.) 415; Mitchell v. Thomas, 6 Moore P. C. C. 137; Bavls v. Rog- ers, 1 Houst. (Del.) 44; Clifton v. Murray, 7 Ga. 564, 50 Am. Dec. 411; Martin v. Mitchell, 28 Ga. 382; Wampler v. Wampler, 9 Md. 540; Day v. Day, 3 N. J. Bq. 549; Weir V. Fitzgerald, 2 Bradf. Sur. (N. Y.) 42; Rollwagen v. Roll- wagen, 63 N. Y. 504; Lewis v. Lewis, 6 Serg. & R. (Pa.) 489; Harrison v. Rowan, 3 Wash. C. C. 580, 583, Fed. Cas. No. 6141. Compare: Gerrish v. Nason, 22 Maine 438, 39 Am. Dec. 589; Hard- ing V. Harding, 18 Pa. St. 340; Vernon v. Kirk, 30 Pa. St. 218; Tomkins v. Tomkins, 1 Bailey L. (S. C.) 92, 19 Am. Dec. 656. In Goods of Owston, 2 Sw. & Tr. 461, the will of a testator who was deaf and dumb and who could neither read nor write, was re- jected because the evidence was not sufficiently satisfactory as to the method in which the instruc- tions of the decedent were given and taken; while in Goods ot Geale, 3 Sw. & Tr. 431, the will of a testator afflicted in exactly the same manner was accepted for probate, the various signs made by the decedent to express his wishes being fully stated and explained, there being a rational connection between the meaning and the signs. The Georgia Code provides that one deaf, dumb and blind may make a will provided the inter- preter and scrivener are both at- testing witnesses thereto, and are MENTAL CAPACITY. 475 § 350. Excessive Use of Drags or Intoxicants. A person may drink and yet retain Ms mental faculties ; although some may claim they are blurred to an extent, yet the use of intoxicants does not necessarily mean a complete loss of understanding. The same may be said regarding drugs. Yet, without question, a person, through a superabundance of alcoholic drinks or the excessive use of drugs, may become so mentally obscured that he is, for the time being, comparable to a madman. In such a condition he can not make a valid will, for understand- ing is lacking.^ ^ But the effects of alcohol and of drugs wear off, and although they may leave the user weakened both in mind and in body, yet so long as there has not been a destruction of that mentality which the law re- quires for the making of a will, it can not be said that the fact that the testator is addicted to the habit of drink or of drugs incapacitates him from making a will.®^ Such both examined on motion for pro- drunkenness, is compared to a bate. madman, and therefore if he make 98 Blllinghurst v. Vickers, 1 his testament at that time, it is Phillim. 187, 191; Ayrey v. Hill, 2 void in law: which is to be under- Addams Ecc. 206; Wheeler v. Al- stood when he is so excessively derson, 3 Hagg. Ecc. 574, 602; drunk, that he is utterly deprived Stedham's Heirs v. Stedham's of the use of reason and under- Ex'r, 32 Ala. 525; In re D'Avig- standing. Otherwise, if he be not non's Will, 12 Colo. App. 489, 55 clean spent, albeit his understand- Pac. 936; In re Harper's Will, 4 ing be obscured, and his memory Bibb (7 Ky.) 244; Andress v. Wei- troubled, yet may he make his tes- ler, 3 N. J. Eq. 604, 608; Black tament being in that case." — V. Ellis, 3 Hill's L. (S. C.) 68; Swinb. Wills, pt. 2, §6. Peck V. Gary, 27 N. Y. 9, 84 Am. 99 In re Gharky's Estate, 57 Cal. Dec. 220; Starrett v. Douglass, 2 274; In re Carithers' Estate, 156 Yeates (Pa.) 46, 48; Duffleld v. Cal. 422, 105 Pac; 127; Frost v. Robeson, 2 Har. (Del.) 375, 383. Wheeler, 43 N. J. Eq. 573, 12 Atl. "He that is overcome with 612; Bannister v. Jackson, 45 N. J. drink, during the time of his Eq. 702, 707, 17 Atl. 692; Fluck v. 476 COMMENTAEIES ON THE LAW OP WILLS. fact, alone, does not raise a presumption that the neces- sary intelligence is lacking. ' The question to be deter- mined is the mental capacity of the testator at the time he makes his will, and the fact that he may then be under the influence of liquor does not invalidate his testament unless he had no intelligent comprehension of what he was doing.2 And the effect of the intoxication on his capacity is not a question for experts, but depends upon common observation and the facts of the particular case.* The continued use of intoxicants and drugs may, how- ever, so deaden the mentality that testamentary capacity is destroyed.* But in such cases it is the lack of the testator's mental capacity that causes his will to be rejected. It is the result which the law contemplates; testamentary capacity is demanded, and a loss of men- Rea, 51 N. J. Eq. 233, 27 AU. 636; Koegel V. Egner, 54 N. J. Eq. 623, 35 Atl. 394; In re Mannion's Estate (N. J.), 95 Atl. 988; In re Glockner's Will, 2 N. Y. Supp. 97; Lewis v. Jones, 50 Barb. (N. Y.) 645; WeatUerall v. Weatherall, 63 Wash. 526, 115 Pac. 1078. 1 In re Mannion's Estate (N. J.), 95 Atl. 988. 2 In re Carithers' Estate, 156 Cal. 422, 105 Pac. 127; Pierce v. Pierce, 38 Mich. 412; In re Man- nion's Estate (N. J.), 95 Atl. 988; Peck V. Gary, 27 N. Y. 9, 84 Am. Dec. 220; In re Miller's Estate, 179 Pa. St. 645, 39 L. R. A. 220, 36 Atl. 139; In re Tasker's Estate, 205 Pa. St. 455, 55 Atl. 24; Key v. Holloway, 7 Baxt. (66 Tenn.) 575. 3 Ayrey v. Hill, 2 Add. Ecc. 206, 209; Pierce v. Pierce, 38 Mich. 412. Where a hard drinker, eighty years of age, made a will during his last illness and shortly before his death, the provisions of which were reasonable, and the persons around him before his death be- lieved him to be sane, the valid- ity of the will was upheld. — Steb- bins V. Hart, 4 Dem. Sur. (N. Y.) 501. 4 United States v. Drew, 5 Ma- son (TJ. S. C. C.) 28, Fed. Gas. No. 14993; Duffield v. Robeson, 2 Har. (Del.) 375; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Howe v. Richards, 112 Iowa 220, 83 N. W. 909; Peck v. Gary, 27 N. Y. 9, 84 Am. Dec. 220. MENTAL eAPACITT. 477 tality through drink or drugs is viewed, in the ultimate, the same as insanity produced through any other agency.* § 351. Apoplectic Seizures and Epileptic Spells. The fact that the testator had, previously to making his will, suffered from cerebral apoplexy, does not thereby render his testament invalid. Such a seizure, although it deprives the testator of his reason for a time, does not necessarily deprive the victim forever of his capacity to make his will. The effect of the afiliction may be such that the sufferer does not recover, or it may be merely temporary. When the issue is testamentary capacity, the material question is the actual effect of the afiliction, not what it might have been. It is not a matter of specu- lation ; if the testator was mentally capable when he made his will, apoplectic spells occurring either before or after such time will not invalidate his testament.® The same rule applies regarding epileptic fits.'' 5 Duffield V. Robeson, 2 Har. were executed, purporting to tte (Del.) 375, 383; Starrett v. Doug- codicils. They were rejected on the lass, 2 Yeates (Pa.) 46, 48. ground that testamentary capacity 6 Matter of Raynor's Will, 63 was lacking. In re Schmidt's Will, Hun 635, 18 N. Y. Supp. 426; Mat- 139 N. Y. Supp. 464, 482, the court ter of Iredale, 53 App. Div. 47, 65 says had it been otherwise in the N. Y. Supp. 533; In re Bennett's above mentioned case and had the Will, 133 N. Y. Supp. 409; In re testator been able to speak or Schmidt's Will, 139 N. Y. Supp. articulate the dissenting opinion 464, 482. of Chief Justice Selden would In Delafield v. Parish, 25 N. Y. have prevailed. 9, 10, the testator after his stroke Proof that the testator had peri- was unable to write or articulate odical epileptic attacks and con- and, this being so, the principal vulsions held not to be such evi- beneficlary of the will interpreted dence of insanity as to raise the testator's inarticulate sounds the presumption of continuance. — to the draftsman of the will, who Brown v. Riggin, 94 111. 560. was a leading chancery lawyer, t Foot v. Stanton, 1 Deane 19; but employed by her. Three papers Brown v. Riggin, 94 111. 560; Wood 478 COMMENTARIES ON THE LAW OF WILLS. § 352. Suicide Do«s Not, of Itself, Establish Mental Incompe- tency. The law does not infer insanity either from an at- tempt to commit stiicide, or from the completed act. Proof of an attempt at suicide by the testator, whether before or after making his will, or the consummation of the act thereafter, does not establish unsoundness of mind. Such facts, however, are admissible in evidence, to be considered with other facts from which is to be deter- mined whether the decedent was possessed of testamen- tary capacity when he executed his will.* § 353. Unreasonable Prejudices and Animosities. Perverse opinions and unreasonable prejudices are not to be confounded with mental alienation.^ "Many a man has some hobby, and may ride it very much to the annoy- ance of others, and yet be perfectly capable of managing his own affairs, and disposing of his property by deed ' V. Carpenter, 166 Mo. 465, 66 S. W. posing memory at the time of 172 ; In re Lewis' Will, 51 Wis. 101, making the will, although he com- 7 N. W. 829. mitted suicide five days after, it 8 Burrows v. Burrows, 1 Hagg. was sustained as a valid will. — Ecc. 109; In re Chevallier's Estate, Godden v. Burke's Exrs., 35 La. 159 Cal. 161, 113 Pac. 130; Duf- Ann. 160, two judges dissenting, field V. Robeson, 2 Har. (Del.) 375; Where the facts show that the In re Miller's Will, 3 Boyce (Del.) will was made in contemplation of 447, 85 Atl. 803, 810; Wilkinson v. suicide and its terms disclose that Service, 249 111. 146, Ann, Cas. It is the product of a mind so 1912A, 41, 94 N. E. 50; McElwee shattered as to lack testamentary v. Ferguson, 43 Md. 479 ; Brooks capacity, the instrument should be V. Barrett, 7 Pick. (Mass.) 94; rejected. — Johnson v. Stancelle, 94 Holton V. Cochran, 208 Mo. 314, Miss. 923, 48 So. 619. 106 S. W. 1035. 9 Phillips v. Chater, 1 Demarest In a case in which the testator (N. Y.) 533; American Seaman's was subject to epileptic attacks. Friend Society v. Hopper, 33 N. Y. but was of sound mind and dis- 619. MENTAL CAPACITY. 479 or will."^*> Prejudice, however strong and unjust, is not equivalent to insanity." Whether well founded or not, prejudices and animosities do not, as a matter of law, invalidate the testator's will, but can have that effect only when clearly the result of a derangement of mind,^^ or unless their existence has been used to impose a fraud on the testator.^^ Violent and groundless prejudices against the natural objects of affection, which influence the dispositions of a will, are not necessarily evidence of insane delusions, but taken in connection with other facts have a strong tendency to show such a condition of mind." But in- sanity is not to be inferred from the fact of aversion to a wife, with whom the testator had never lived in har- mony.^^ And the mere fact that a testator disinherits a child is no evidence that he was insane or entertained delusions respecting his child.^* Nor did giving the bulk 10 Turner v. Hand, 3 Wall. Jr. n Dew v. Clark, 3 Addams Eoc. (U. S. C. C.) 88, 120 Fed. Cas. No. 79; Boughton v. Knight, L. R. 3 14257. P. & D. 64; Florey v. Florey, 24 Compare: Frere v. Peacocke, 1 Ala. 241; Cotton v. tTlmer, 45 Ala. Rob. Ecc. 442; Nichols v. Binns, 378, 6 Am. Rep. 703; Lucas v. Par- 1 Sw. & Tr. 239. sons, 24 Ga. 640, 71 Am. Dec. 147; 11 Trumbull v. Gibbons, 22 Evans v. Arnold, 52 Ga. 169; Lamb N. J. L. 117; Phillips v. Chater, 1 v. Lamb, 105 Ind. 456, 5 N. B. 171; Demarest (N. Y.) 533. Stackhouse v. Horton, 15 N. J. Eq. Compare: Shorb v. Brubaker, 202; Stanton v. Wetherwax, 16 94 Ind. 165. Barb. (N. Y.) 259; Coit v. Patchen, i2Nicewander v. Nlcewander, 77 N. Y. 533; Jenckes v. Smith- 151 111. 156, 37 N. E. 698; Ahra- field, 2 R. L 255; Nicholas v. hams V. WooUey, 243 111. 365, 90 Kershner, 20 W. Va. 251; Cole's N. E. 667; Collins v. Brazill, 63 Will, 49 Wis. 179, 5 N. W. 346. Iowa 432, 19 N. W. 338; Gesell v. i5 Phillips v. Chater, 1 Demarest Baugher, 100 Md. 677, 60 Atl. 481; (N. Y.) 533. Woodville v. Morrill, 130 Minn. 92, le Bomgardner v. Andrews, 55 153 N. W. 131. lO'W'a 638, 8 N. W. 481. 13 Carter v. Dixon, 69 Ga. 82. 480 COMMENTARIES ON THE LAW OP WILLS. of an estate to reduce the national debt indicate testa- mentary incapacity in one who had no legitimate kin- dred who were thereby disappointed." §354. Wills Containing Harsh and Unreasonable Provisions: Do Not Establish Incapacity. Where the provisions of a will dispose of a decedent's estate in accord with the dictates of natural justice, strojig evidence will be required to show a lack of tes- tamentary capacity.^* But harsh provisions do not ren- der a will invalid. Where testamentary capacity is the issue, the reasonableness of the terms of the will does not control. If it is established that the testator lacked suf- ficient understanding when he executed his will, the in- strument will be declared invalid, no matter how natu- ral and just its provisions may seem. The vice of a will of a testator mentally deficient lies not in the char- acter of its dispositions, and is not affected by the con- sideration that its provisions would have been the same had capacity existed.^® An instrument can not be a will unless, among other things, it is the lawful intent of a competent person, and one who is mentally incompetent is legally incapable of forming and expressing such an intent. Where there is no mind, such as the law requires, there can be no will. A will is the child of the mind, but when the mind is dead, there can be no offspring. 17 In re Lewis, 33 N. J. Eq. 219. i9 Shirley v. Bzell, 180 Ala. 352, isGunderson v. Rogers, (Qun- «» ^o. 905, 907. The fact that a white testator disinherited his heirs and left his entire estate to a negro held not See, this chapter, note 42, re- suiBcient to cause his will to be garding a rational act rationally rejected. — Leach v. Burr, 188 U. S. done. 510, 47 L. Ed. 567. derson's Estate) 160 Wis. 468, 152 N. W. 157. MENTAL CAPACITY. 481 §355. The Same Subject: How Considered. The rule is that a testator has the right to make a harsh, unjust, unreasonable, or even a cruel will ; he may disinherit his only child and leave his property to other heirs or to strangers. Such facts, in themselves, do not constitute legal grounds for holding that the testator was mentally incompetent.^" Yet, in determining the 20 Field V. Shorb, 99 Cal. 661, 34 Pac. 504; In re Wilson's Estate, 117 Cal. 262, 49 Pac. 172, 711; In re Martin's Estate, 170 Cal. 657, 151 Pac. 138; Penn v. Thurman, 144 Ga. 67, 86 S. E. 233; Schneider V. Manning, 121 111. 376, 12 N. B. 267; "Taylor v. Pegram, 151 111. 106, 37 N. E. 837; Allen v. North, 271 IIL 190, 110 N. B. 1027; Breadhett ■V. Cleveland, 184 Ind. 130, 108 N. B. 5, 110 N. B. 662; Philpott v. Jones, 164 Iowa 730, 146 N. W. S59, 862; Byrne v. Byrne (Mo.), 181 S. W. 391; Frowert's Estate, 11 Phila. (Pa.) 136; Carr v. Mc- Cormick (R. I.), 96 Atl. 817. In Houghton and Marston v. Knight, L. R. 3 P. & D. 64, the •court says: "For convenience the phrase 'sound mind' may be adopted. ... I must commence, Tiowever, by telling you what these words do not mean. They do not mean a perfectly balanced mind. If so, which of us would be com- petent to make a will? Such a mind would be free from all influ- ence of prejudice, passion and pride. But the law does not say that a man is incapacitated from Biaking a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean or even bad motives. We do not sit here to correct injustice in that respect. Our duty is lim- ited to this: to take care that that, and that only, which is the true expression of a man's real mind, shall have effect given to it as his will. In fact, this ques- tion of justice and fairness in the making of wills In a vast majority of cases depends upon such nice and fine distinctions that we can not form, or even fancy that we can form, a just estimate of them. Accordingly, by the law of Eng- land, every one is left free to choose the person upon whom he will bestow his property after death, entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to stran- gers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursue d." (Note.) In the United States, the statutes of the various states gen- 482. COMMENTARIES ON THp LAW OP WILLS. ultimate question" of the testamentary capacity of the testator, the jury has the right to consider any evidence showing that the will was just or unjust, reasonable or unreasonable, natural or unnatural. It may also con- sider evidence as to the value of the decedent's estate and the financial condition of those who might naturally expect to be beneficiaries, at the time. the will was made. Such matters, although not in themselves establishing testamentary incapacity, may be considered and have weight, according to circumstances and in connection with other evidence, in determining the question of ca- pacity.^^ erally limit the amount which may be given to charity. The mere fact that the testator disinherits his only child, does not raise any presumption of want of testamentary capacity. — Breadheft V. Cleveland, 184 Ind. 130, 108 N. B. 5, 110 N. B. 662. 21 Field V. Shorb, 99 Cal. 661, 34 Pac. 504; In re Wilson's Estate, 117 Cal. 262, 49 Pac. 172, 711; In re Martin's Estate, 170 Cal. 657, 151 Pae. 138; Whiddon v. Salter, 144 Ga. 67, 86 S. B. 243; Dillman V. McDanel, 222 111. 276, 113 Am. St. Rep. 400, 78 N. B. 591; Healea V. Keenan, 244 111. 484, 91 N. E. 646; Beemer v. Beemer, 252 111. 452, 96 N. E. 1058; Kern v. Meyer, 264 111. 560, 106 N. E. 429, 430; Manatt v. Scott, 106 Iowa 203, 216, 68 Am. St. Rep. 293, 76 N. W. 717; Trotter v. Trotter, 117 Iowa 417, 418, 90 N. W. 750; Arnold v. Liv- ingstone, 155 Iowa 601, 134 N. W. 101; Philpott V. Jones, 164 Iowa 730, 146 N. W. 859, 862; In re Dobal's Estate, (Iowa) 157 N. W. 169; Mowry v. Norman, 223 Mo. 463, 122 S. W. 724; Byrne v. Byrne, (Mo.) 181 S. W. 397; In re Wil- liams' Estate, 52 Mont. 192, 156 Pac. 1087; In re Bsterbrook's Will. 83 Vt. 229, 75 Atl. 1. On the issue of testamentary capacity, the unreasonableness or unjustness of the provisions of a testator's will may be considered in connection with other circum- stances, but do not alone establish Incapacity. — Morgan v. Morgan, 30 App. D. C. 436; Taylor v. McClin- took, 87 Ark. 243, 112 S. W. 405; Donnan v. Donnan, 236 111. 341, 86 N. E. 279. But if the issue is only an insane delusion, such evidence would be admissible only, after the delusion had been established, to show that the testator had been governed by it. — Taylor v. McClin- tock, 87 Ark. 243. 112 S. W. 405. By the words "natural objects MENTAL CAPACITY. 483 of the testator's bounty" is not meant the legal object recognized by the law of descent, for the power and purpose to disregard some canon of descent are neces- sarily Implied in the making of any will. The jury is to determine not what the testator would have probably done if governed by fixed canons of descent, or any law o£ human contrivance, but what ho might under all the evidence have reasonably been expected to have done when subject to no influ- ences, except that of nature, with its own rule of duty and justice. If the jury finds that the testator has selected objects of his bounty differing from those designated by natural laws, such fact involving unnatural conduct may be consid- ered by the jury in connection with other evidence in determin- ing the testator's sanity. — Bread- heft V. Cleveland, 184 Ind. 130, 108 N. E. 6, HO N. E. 662. CHAPTER XV. ETJLES OP EVIDENCE EEGAEDING TESTAMENTARY CAPACITY. § 356. Evidence admitted of occurrences both prior and sub- sequent to the making of the will. § 357. Effect of proof of insanity, chronic or temporary. § 358. Evidence of testator's mental condition, acts and habits, before and after execution of his will, admissible. § 359. Oral and written declarations : Difference in effect. § 360. Declarations of the testator: For what purposes admitted. § 361. Declarations of the testator as affecting the issue of testamentary capacity. § 362. Declarations of testator admitted to show state of mind, not as proof of facts stated. § 363. Deeds, letters, prior wills, and the like : How considered. § 364. Proof of insanity of blood kindred. § 365. Manner in which testator was treated by his family. § 366. Interests of beneficiaries under a will are not joint : Effect as to declarations being admitted in evidence. § 367. Admissions against his interest by one of several bene- ficiaries, § 368. The same subject : A middle ground. § 369. The same subject : Inadmissible in evidence. § 370. The same subject. § 371. Declarations of subscribing witnesses. § 372. Declarations admissible for purpose of impeachment. § 373. Declarations against interest by a sole beneficiary admis- sible in evidence. § 374. Classification of witnesses who may testify as to testa- mentary capacity of the testator. § 375, Subscribing witnesses should satisfy themselves that the testator is of sound mind. (484) RULES OF EVIDENCE. 485 § 376. Opinions of medical experts admissible. § 377. Who are medical experts. § 378. Medical experts should state facta to give fheir opinions weight. § 379. The same subject. § 380. Subscribing witnesses may state opinions as to sanity or insanity of testator. § 381. Subscribing witnesses should state facts so that value of opinions may be judged. § 382. The weight given to opinions of subscribing witnesses. § 383. Opinions of lay witnesses depend upon knowledge of facts. § 384. Lay witnesses must state opportunity for observation. § 385. Lay witnesses may state facts and give opinion based on them. § 386. The same subject : Opinion must be based on facts given in evidence by witness. § 387. The same subject : Distinction between opinions as to sanity and as to insanity. § 388. Distinction between statements of fact and of opinion is often slight. § 389. Trial court must determine qualifications of vntness to express an opinion. § 390. Privileged communications : Waived as to subscribing witnesses. § 391. The same subject: Who may claim or waive the privi- lege. § 392. The same subject : Contest between heirs and next of Wn. § 393. The same subject : Claiming privilege is not suppression of evidence. § 394. Burden of proof: Term defined. §395. The term "burden of proof" as it has been applied in vdU contests. § 396. All persons are presumed of sound mind, in absence of ' evidence to the contrary. § 397. Presumptions and suspicious circumstances. 486 COMMENTABIES ON THE hXVT OF WILLS. § 398. Distinction where will is prepared by testator, or under supervision of principal beneficiary. ' § 399. Proponent i^uld establish his prima fade ease by proof of testamentary capacity : Conflict of authority. § 400. The same subject : "Weight of authority. § 401. Burden of proof after proponent has established a, prima facie case. § 402. Burden of proof : The better rule. § 403. Testamentary capacity is a question of fact. § 356. Evidence Admitted of Occurrences Both Prior and Sub- sequent to the Making of the Will. Although the question as to the mental competency of a testator is to be decided by the state of his mind at the time the will was made, evidence is always admissible of prior and subsequent occurrences which tend to shed light on the matter. Cases involving the admissibility of testimony to establish or rebut an allegation of testa- mentary incapacity ,may be ordinarily classified under general rules of the law of evidence, of which it is not necessary here to give detailed illustration. But the issue being a broad one, much latitude is allowed, and it has even been said that all the facts of the testator's personal history and of his parents and remoter an- cestors may be admitted in evidence.^ § 357. Effect of Proof of Insanity, Chronic or Temporary. When testamentary capacity is the issue, because the mental competency of the testator at a particular time 1 Coughlin V. Poulson, 2 Mac- If there Is evidence tending to Arthur (9 D. C.) 308; Ross v. Ma show mental unsoundness, It Is Quiston, 45 Iowa 145; Baxter v. competent to show the insanity of Abbott, 7 Gray (Mass.) 71. K testator's collateral blood rela- See, post, § 364, as to proof o* tlons no further removed than insanity of blood kindred. uncles and aunts, without making EULES OF EVIDENCE. ' '48*7 must be determined, it does iiot follow tHat there must be direct and positive proof of incapacity at that very moment. Proof of insanity or mental incapacity chronic in its nature, especially where it is progressive, raises the presumption of continuance; and where proof of such habitual insanity at a time prior to the making of the will has been put in evidence, it is incumbent on the proponent to rebut the same.^ But it is not a positive rule that the testator was mentally incompetent when he executed his will merely because incapacity is shown to have existed either before or after that time, since it might have been the result of some temporary cause.* §358. Evidence of Testator's Mental Condition, Acts and Habits, Before and After Execution of His Will, Admissible. On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that all facts may be brought out which will assist in determin- ing the question.* Evidence of the testator's mental con- dition, his acts, conduct and habits, both before and after the execution of the will, are admissible, but only for the proof that it was hereditary in temporary attack, such as fever, character. — Martin v. Beatty, 254 Injury, or the like. III. 615, 98 N. E. 996, 997. See, ante, §§ 337, 338, as to lucid 2BaIak v. Susanka, 182 Mo. intervals. App. 458, 168 S. W. 650, 656. 4 McConnell's Exr. v. McConnell, See, ante, |§ 333, 334, 336, as to 138 Ky. 783, 129 S. W. 106; Lisle the presumption of the contln- v. Couchman, 146 Ky. 345, 142 uance of chronic insanity. S. W. 1023; Bramel's Exr. v. 3 Harris v. Hipsley, 122 Md. 418, Grain's Guardian, 157 Ky. 671, 163 89 Atl. 852. S. W. 1125, 1127; In re Pinney's See, ante, § 333, as to no pre- Will, 27 Minn. 280, 6 N. W. 791, sumption that the Insanity con- 7 N. W. 144; McAllister v. Row- tinues when it is the result of a land (In re BuUard's Estate), 124 488 COMMENTARIES ON THE LAW OF WILLS. purpose of shedding light on the actual condition of his mind at the time of the execution of the will." Such testi- mony, however, must be accepted with caution, since evi- dence of the acts and conduct of the testator at other times may produce a false impression in the minds of the jurors, and there is grave danger of it having more weight than the law contemplates it should have in determining the mental condition of the testator when he made his will. It is therefore of great importance, when such testimony is offered, that the time be shown as clearly as is possible.* And before such evidence is admitted, there should be some proof warranting the presumption that the mental condition of the testator at the time re- ferred to in the evidence was the same as when he made his will.'' A person theretofore competent might rave be- cause of illness, or become mentally unbalanced because of injury, either of which occurring after his will was made would in nowise tend to establish testamentary in- capacity. Minn. 27, Ann. Cas. 1915B, 1006, In re Buck v. St. Louis Union 144 N. W. 412, 413. Trust Co., 267 Mo. 644, 185 S. W. 5 Rodney v. Burton, 4 Boyce 208, It was held that an offer to (27 Del.) 171, 86 Atl. 826; Voodry prove that the business of a man- V. Trustees, 251 111. 48, 95 N. B. ufacturing company, of which the 1034; Kellan v. Kellan, 258 111. testator was the manager during 256, 101 N. E. 614; Wisner v. ^^^ ti™e the will was made, was Chandler, 95 Kan. 36, 147 Pac. so systematized that it required 849; Harris v. Hipsley, 122 Md. no ability on the part of the tes- 418, 89 Atl. 852; Lyon v. Town- tator to manage the same, would send, 124 Md. 163, 91 Atl. 704; ^^ properly refused as having no Collins V. Dowlan, 118 Minn. 214, probative force upon the auestion 136 N. W. 854; Chrisman v. Chris- ot incapacity to make the will, man, 16 Ore. 127, 18 Pac. 6; Car- e Harris v. Hipsley, 122 Md. 418, nagie v. Diven, 31 Ore. 366, 49 Pac. 89 Atl. 852. 891; In re Pickett's Will, 49 Ore. 7 Leffingwell v. Bettinghouse, 151 127, 89 Pac. 377. Mich. 513, 115 N. W. 731. RULES OF EVIDENCE. 489 § 359. Oral and Written Declarations: Difference in Effect. A declaration is merely a statement of some alleged fact, idea or application which may be true or untrue, and the declarant may believe the statement, or it may be wilfully false. Such declarations may be either oral or in writing. Oral declarations are not entitled to be given the same weight as those which are written. There is difficulty in even transposing any speech from direct to indirect discourse. Witnesses nearly always, in re- peating statements of others, convert them into language of their own. The sense of an oral declaration may be unintentionally perverted; an ignorant witness may be incapable of repeating in such words as are comprised in his vocabulary, remarks into which were interpolated legal or technical terms or unfamiliar phrases. The imag- ination of an iminterested witness must be considered; and where the witness is biased, prejudiced, or actuated by self interest and hope of gain, his testimony regarding oral declarations of a decedent should be received with caution.* §360. Declarations of tlhe Testator: For What Purposes Admitted. Declarations of a testator may be offered in evidence for various purposes, and the purpose will control their admissibility. The object for which such testimony is offered should be kept in mind, and the failure of many decisions to clearly state the reason for accepting or rejecting such evidence has led to difficulties. Declara- tions may be offered (1) to show the revocation of a will admitted to have once been valid, (2) to impeach the 8 In re Campbell's Will, 136 See, ante, § 136, as to viewing N. T. Supp. 1086, 1098. such evidence with distrust. 490 COMMENTAEIES ON THE LAW OF WILLS. validity of a will because of mistake, fraud, duress, or some other cause not involving the mental capacity of the testator, (3) or to prove the lack of testamentary capacity, or that the will was obtained by undue influence. Where the purpose for which the declarations of a testator are offered is to establish a fact referred to in the two classes first above mentioned, the general rule is that such declarations are inadmissible unless made at or so near the time of the execution or alleged revocation of the will as to be a part of the res gestce.^ If not a part of the res gestce, they are mere hearsay statements and are not admissible to control the construction of the instru- ment or to support or destroy its validity.^** §361. Declarations of the Testator as Affecting the Issue of Testamentary Oapacity. When the issue is the testamentary capacity of the testator or that the will was obtained by undue influence, 9 Waterman v. Whitney, 11 N. Y. tator, revocation can not be pre- 157, 62 Am. Dec. 71. sumed from his declarations 10 Stevens v. Van Cleve, 4 Wash, which are not part of the res C. C. 262, Fed. Cas. No. 13412; gestae.— Throckmorton v. Holt, 180 Jackson v. Knlffen, 2 Johns. U. S. 552, 45 L. Ed. 663, 21 Sup. (N. Y.) 31, 3 Am. Deo. 390; Mor- Ct. 474. Itz V. Brough, 16 Serg. & R. (Pa.) See, ante, § 53, as to parol dec- 403. larations as part of the res gestae. Declarations which are a part See, ante, § 112, as to the effect of the res gestae are admissible of evidence of parol declarations on the question of intent to r&- or of the conduct of the testator, voke. — Patterson v. Hickey, 32 Ga. with reference to conditional wills. 156; Gay v. Gay, 60 Iowa 415, See, ante, §§124, 125, 126, as to 46 Am. Rep. 78, 14 N. W. 238; the extent to which parol declara- Townshend v. Howard, 86 Me. 285, tions may be admitted regarding 29 Atl. 1077. revocation of duplicate wills. In the absence of evidence suffl- See, ante, §§ 208-212, as to the cient to raise a presumption of effect of declarations in connec- revocation of his will by the tes- tion with donations mortis causa. EULES OF EVIDENCE. 491 the rule differs.^* Undue influence is associated "with testamentary capacity since the amount of influence nec- essary to affect the testator varies according to the strength of his mind. Upon such issues, declarations of the testator, either hefore or after the execution of the will, may be admitted in evidence. The question to be decided is the mental competency of the testator when he made his will. If at such time he possessed the re- qtdred mental capacity, the mil is not invalidated because he may have been incompetent either before or after that date. But the law permits evidence of prior or subse- quent incapacity if it sheds light upon the mental condi- tion of the testator at the time the will was made. If it does not bear upon such period, it amounts to nothing. Declarations of a testator are the external manifesta- tions of his mind ; mental disturbances are manifested by declarations as surely as by conduct. Their probative force, however, depends on their nearness or remoteness to the time of the execution of the will, and they may be so far removed as to be entitled to no force whatsoever.^^ 11 See, ante, § 360. 112, the court says: "It (the will) As to mental capacity affecting is always liable to be impeached the question of undue influence, by any competent evidence that see, post, § 369. it was never executed with the 12 Stevens v. Van Cleve, 4 Wash, required formality, was not the C. C. 2.62, Fed. Cas. No. 13412; act of one possessed of the re- Mason v. Bowen, 122 Ark. 407, 183 quired testamentary capacity, or S. W. 973; Bever v. Spangler, 93 was obtained by such fraud or Iowa 576, 603, 61 N. W. 1072; undue influence as to subvert the Reel's Exrs. v. Reel, 1 Hawks real intentions and will of the (8 N. C.) 248, 9 Am. Dec. 632; maker. The declarations of the Rambler v. Tryon, 7 Serg. & R. testator accompanying the act (Pa.) 90, 10 Am. Dec. 444; Mc- must always be resorted to as the Taggart v. Thompson, 14 Pa. St. most satisfactory evidence to sus- 149. tain or defend the will whenever In Shailer v. Bumstead, 99 Mass. this issue is presented." 492 COMMENTABIES ON THE LAW OF WILLS. There is no fixed rule as to the lapse of time between the declaration and the maMng of the will which is necessary to render evidence of the former inadmissible, but it must rest in the sound discretion of the court, and will vary according to the circumstances.^* §362. Declarations of Testator Admitted to Show State of Mind, Not as Proof of Facts Stated. In a contest involving testamentary capacity, proof of declarations of the testator, either written or oral, made either before or after the execution of the will, are not ad- missible as proof of the facts stated,^* but are permitted for the purpose of showing the state of the testator's mind when the will was made.^® While not admitted to es- tablish a fact, yet such declarations may show that the 13 Huffman v. Graves, 245 111. 440, 92 N. E. 289; In re Winch's Estate, 84 Neb. 251, 18 Ann. Cas. 903, 121 N. W. 116. See, also, In re Walker's Will, 152 Iowa 154, 128 N. W. 386, where four or five years was not too remote; Grill V. O'Dell, 113 Md. 625, 77 Atl. 984, where fifteen or twenty years was too remote; and Hardy v. Martin, 200 Mass. 548, 86 N. B. 939, where the question of congenital insan- ity was involved and testimony as to the conduct of the testator was limited to six years prior to the will. 14 Throckmorton v. Holt, 180 U. S. 552, 572, 45 L. Ed. 663, 21 Sup. Ct. 474; Mason v. Bowen, 122 Ark. 407, 183 S. W. 973; Com- stock v. Hadlyme Ecclesiastical Soc, 8 Conn. 254, 20 Am. Dec. 100; Reynolds v. Adams, 90 111. 134, 32 Am. Rep. 15; Bevelot v. Le- strade, 153 111. 625, 38 N. B. 1056; Hill V. Bahrns, 158 lU. 314, 41 N. K 912; England v. Fawbush, 204 111. 384, 68 N. E. 526; Norton v. Clark, 253 111. 557, 97 N. E. 1079; Jones v. McLellan, 76 Me. 49; In re CampbeU's Will, 136 N. Y. Supp. 1086, 1098; Robinson V. Hutchinson, 26 Vt 38, 60 Am. Dec. 298. A testator's declaration that he did not make the will, and that others made him drunk to pro- cure him to execute it, is inad- missible. — Gibson v. Gibson, 24 Mo. 227. 15 Throckmorton v. Holt, 180 U. S. 552, 572, 45 L. Ed. 663, 21 Sup. Ct. 474; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Mason v. EULES OF EVIDENCE. 493 testator liad knowledge of some fact material in the case and otherwise proven, and are properly admissible for such purpose.^® And where untrue declarations of the testator have been put in evidence, it is proper in re- buttal to show the truth of the situation." §363. Deeds, Letters, Prior Wills, and the Like: sidered. How Con- Where a will does not conform to the previously ex- pressed intentions of the testator, proof of such state- ments will not, of itself, invalidate the will or establish testamentary incapacity, since one is not to be declared Bowen, 122 Ark. 407, 183 S. W. 973; Burnham v. Grant (In re Bumliam's Will), 24 Colo. App. 131, 134 Pac. 254; Comstock v. Hadlyme Ecclesiastical Soc, 8 Conn. 254, 20 Am. Dec. 100; Den- nis V. Weekes, 51 Ga. 24; Reyn- olds V. Adams, 90 111. 134, 33 Am. Rep. 15; Hill v. Bahrns, 158 III. 314, 41 N. B. 912; Waugh v. Moan, 200 111. 298, 65 N. B. 713; England v. Fawbush, 204 111. 384, 68 N. E. 526; Wilkinson v. Ser- vice, 249 111. 146, Ann. Cas. 1912A, 41, 94 N. E. 50; Norton v. Clark, 253 111. 557, 97 N. E. 1079; Kellan V. Kellan, 258 111. 256, 101 N. B. 614; Holliday v. Shepherd, 269 HI. 429, 109 N. E. 976; Bower v. Bower, 142 Ind. 194, 41 N. B. 523; Wendt V. Foss, 161 Iowa 122, 140 N. W. 881; May v. Bradlee, 127 Mass. 414; Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 160, 17 Am. St. R«p. 552, 12 S. W. 510; Pattee v. Whitcomb, 72 N. H. 249, 56 Atl. 459; In re Crumb's Estate, 127 N. Y. Supp. 269; In re Benja- min's Will, 136 N. Y. Supp. 1070; In re Campbell's Will, 136 N. Y. Supp. 1086; Gick v. Stumpf, 204 N. Y. 413, 97 N. E. 865; Wood v. Sawyer, 61 N. C. 251; Foster's Exrs. V. Dickerson, 64 Vt. 233. 24 Atl. 253. Declaration by the testator as to indulgence in immoral prac- tices held Inadmissible. — Snell v. Weldon, 239 111. 279, 87 N. E. 1022. 16 Foster's Exrs. v. Dickerson, 64 Vt. 233, 24 Atl. 253. 17 Where evidence is introduced of the testator's declaration that his son would use up all his es- tate, it is proper to introduce evi- dence in rebutttal that the son had received nothing for caring for the property of his father. — In re Walker's Will, 152 Iowa 154, 128 N. W. 386. Where evidence Is introduced showing that the testator had 494 COMMENTAEIES ON THE LAW OP WILLS. incompetent merely because he changed his mind; but such testimony is admissible and may be considered with other evidence on the issue of mental competency.** A prior will of the testator, which is conceded to have been executed at a time when he was of sound mind, may be admitted in evidence for the purpose of comparison with a later will, in order to show testamentary capacity,** the state of his affections,^" or that the disposition which he made of his estate was or was not in accord with his pre- viously expressed intentions.''* Deeds executed by the testator may be admitted as evidence of mental capacity and the method of and nature of his business transac- tions.^* Letters written by the testator, if not too remote, whether before or after the execution of his will, may be considered, not only for the expressions of thought therein contained as showing the State of his mind at that time, but also as to the mapner of writing and the spelling of the decedent's name.** Clear, sensible, and perfectly coherent letters upon business and other matters, written within the year, but as long as two months before the made untrue declarations to tho 20 Rule v. Maupin, 84 Mo. 587; effect that he was divorced from Lindsay v. Stephens, 229 Mo. 600, his wife, an agreement between 129 S. W. 641. himself and his wife as to prop- jji Taylor v. Pegram, 151 111. 106. erty and contractual rights is ad- 3^ ^^ ^ ^3^. ^^^^^ ^ gchnltker, niissible to explain his state- „nn rr ^r t, ,,^h t, „ . s o 181 111. 400, 55 N. E. 151; Powers ments. — Turner v. American Se- curity & Trust Co., 213 TJ. S. 257„ ^'^'•- ^- ^°^^''' ^1 Ky. Law Rep 53 L. Ed. 788. 29 Sup. Ct. 420. '^^' '^ »• ^^ 8*5; In re Living- ston's Will, (N. J.) 37 Atl. 770; Brown V. Mitchell. 87 Tex. 140, 26 S. W. 1059. 18 Hurley v. Caldwell, 244 111. 448, 91 N. B. 654. See, also, Bower r. Bower, 142 Ind. 194, 41 N. E. 523 22 Wilson v. Wilson, 7 Ohio N. P. 19 Homer v. Buckingham, 103 (N. S.) 435. Jid. 556, 64 Atl. 41; Whlsner v. 2S McMechen v. McMechen, 17 Whisner, 122 Md. 195, 89 Atl. 393. W. Va. 683, 41 Am. Rep. 682. RULES OP EVIDENCE. 495 making of the will, are entitled to considerable weight.** But letters addressed to the testator are not admissible in evidence as proof of his mental condition unless they are connected with and explain some act of his in refer- ence to his will, and unless he exercised some act of judgment or understanding in connection with them.^^ § 364. Proof of Insanity of Blood Kindred. There is a distinction between the inferences to be drawn from the proof of habitual or chronic insanity and from that which is merely temporary.^^ The nature of the affliction controls to a large extent the evidence which may be introduced. It is established in medical science that in cases of chronic insanity an hereditary predisposi- tion is often found. It is therefore material in proving habitual insanity to introduce evidence showing that the ancestors or blood relatives of the testator were similarly afflicted.^'' Such evidence is admissible, however, only in connection with insanity which may be inherited. Al- though an immediate ancestor of the testator might have 24 In re Blakely's Will, 48 Wis. (9 D. C.) 308; People v. Garbutt, 294, 4 N. W. 337. 17 Mich. 9, 97 Am. Dec. 162; Berry 25 Snell V. Weldon, 239 111. 279, v. Safe Deposit etc. Co., 96 Md. 45, 87 N. E. 1022; Waters v. Waters, 53 Atl. 720; Baxter v. Abbott, 7 35 Md. 531. Gray (Mass.) 71; Prentis v. Bates, The same rule has been applied 93 Mich. 234, 17 L. R. A. 494, 53 to letters found in an envelope N. W. 153. among the possessions of the tes- In Scotland, evidence that a ma- tator after his death and marked ternal aunt had been afflicted with "spirit communications." — Crum- insanity was held admissible. — In baugh V. Owen, 238 111. 497, 87 re Gibson's Case, 2 Broun (Scot. N. E. 312. Just.) 322, 347. Yet in another 26 See, ante, §§ 333, 334. case the fact that a paternal uncle 27 Rex V. Tuckett, 1 Cox C. C. had died insane was held inad- 103; People v. Smith, 31 Cal. 466; missible in evidence. — Lord Advo- Coughlin V. Poulson, 2 MacArthur cate v. Brown, 2 Irvine (Scot. 496 COMMENTAEIES ON THE LAW OF WILLS. t been during his lifetime confined to an asylum, if Ms insanity was merely the result of some temporary cause, such as stimulants, drugs or injuries, evidence of the insanity of such ancestor would be inadmissible.** The weight of the evidence would depend upon the nearness of the blood relationship and the number of those in like relationship as that of the testator who had been affected, and before such evidence is admissible there must be a showing that the testator had suffered to some extent from a like affliction. If the only proof is that his mind was unbalanced from some temporary cause, proof of the insanity of his ancestors should not be received.*' Insan- ity, either of an ancestor or of the testator, must be proved as a fact; it can not be established by reputation or by hearsay testimony.*" § 365. Manner in Which Testator Was Treated by His Family. "Where relatives are contesting the will on the ground of insanity, evidence that they made no effort during the testator's lifetime to have him adjudged insane, is admissible.*^ The manner in which such a testator was treated by his family is not in itself competent substan- tive evidence tending to prove either sanity or insanity, Just.) 154. See, also, Malcolm Mo- 44 Iowa 229; Townsend v. Pep- Leod's Case, 2 Swin. (Scot. Just.) perell, 99 Mass. 40. 88. In Owen v. Groves, 145 Ga. 287, 28 Reichenbach v. Ruddach, 127 88 S. E. 964, it was held that Pa. St. 564, 18 Atl. 432; Titus v. an offer to prove that, according Gage, 70 Vt. 13, 39 Atl. 246. to general repute in the family, 29 Pringle v. Burroughs, 100 a brother of the testatrix became App. Div. (N. T.) 366, 91 N. Y. insane before he died, was prop- Supp. 750. erly rejected upon the question of 30 Wright T. Tatham, 5 CI. & testamentary capacity, the evl- Fin. 670; Foster v. Brooks, 6 Ga. dence being hearsay. 287, 292; Ashcraft v. De Armond, 3i Irwin v. West, 81 Pa. St. 157. RULES OP EVIDENCE. 497 it being at the most merely an extrajudicial expression of opinion. It is, however, proper evidence to be con- sidered in connection with the circumstances of the case ; and likewise, the acquiescence of the testator in the con- duct of his family toward him, especially in a case whpre their manner of treatment is such that it would not be tolerated by a person of sound mind, is admissible as tending to show incompetency.** §366. Interests of Beneficiaries Under a Will Are Not Joint: Effect as to Declarations Being Admitted in Evi- dence. Extrajudicial statements of third parties, not a part of the res gestae, are generally excluded on the ground of hearsay. One well recognized exception to this rule is presented where the declarations are against interest. As a general rule, the admissions of a party to the record against his interest are competent against him, and this rule applies to cases where others have a joint interest in the suit, although such other parties in interest may be injuriously affected. The rule does not apply, however, where the interests are not joint, a mere community of interest is not sufficient. 32 In re De Laveaga's Estate, belong to and spring from the 165 Cal. 607, 133 Pac. 307, 314. affections and emotions, as well "The inquiry is of course di- as those morbid developments rected to the condition at the date which have their origin in some of the execution of the will, but physical disturbance. All that is the entire moral and intellectual peculiar in temperament or modes development of the testator at of thought, the idiosyncrasies of that time is more or less in- the man, so far as susceptibility is volved; not alone those substan- thereby shown, present proper tlve and inherent qualities which considerations for the jury." — enter into the constitution of the Shailer v. Bumstead, 99 Mass. 112, man, but those less permanent 121, 122. features which may be said to I Com. on Wills— 32 498 COMMENTARIES ON THE LAW OP WILLS. When a will is offered for probate, all legatees and devisees have an interest in the result ; they have a com- munity interest in sustaining the instrument, but their interests are separate and distinct.'* « §367. Admissions Against His Interest by One of Several Beneficiaries. A statement by one of several legatees that the testator had been of unsound mind when he made his will, or that he had unduly influenced the decedent in the manner of the disposition of his estate, is an admission against his interest. It is claimed in some decisions that it would be unreasonable to allow the declarant to escape the effect of such an admission although it would be equally con- clusive against the interests of his co-legatees. There- fore, in some cases, it has been held more consistent to admit evidence of such an admission by one of the lega- tees, not as an admission by the other parties in interest, but as a circumstance that a party interested had ad- mitted a fact which he would not have admitted had he not believed it to be true. The effect, in such a case, although the admission is not entitled to be weighed against all those in interest, is that such evidence tends to the presumption that the admission is true and there- fore affects all.** 33Blakey's Heirs v. Blakey's 1, 80 Am. St. Rep. 604, 57 S. W. Ex., 33 Ala. 611, 616; Hellman v. 526; Bovard v. Wallace, 4 Serg. Burritt, 62 Conn. 438, 26 Atl. 473; & R. (Pa.) 499; Clark v. Morrison, McMillan v. McDill, 110 111. 47; 25 Pa. St. 453; Forney v. Ferrell, Campbell v. Campbell, 138 111. 612, 4 W. Va. 729. 28 N. E. 1080; Phelps v. Hartwell, 34 Morris v. Stokes, 21 Ga. 552; 1 Mass. 71; Shailer v. Bumstead, Dennis v. Weekes, 46 Ga. 514; Mil- 99 Mass. 112; Dan v. Brown, 4 ton v. Hunter, 13 Bush (76 Ky.) Cow. (N. Y.) 483, 15 Am. Dec. 395; 163; Davis v. Calvert, 5 Gill & J. Schierbaum v. Schemme, 157 Mo. (Md.) 269, 25 Am. Dec. 282; Arm- RULES OF EVIDENCE. 499 § 368. The Same Subject: A Middle Ground. A middle ground has been taken, such as allowing the testimony to he introduced solely against the party mak- ing a declaration against his interest, holding that the jury may, upon sufficient proof, strike out his legacy and establish the balance of the will. Thus a will might be good as to one party and bad as to another, valid as to some parties and invalid as to others.^^ Such a rule, how- ever, could not have universal application. If the testa- tor lacked testamentary capacity, the will in its entirety should be rejected ; the objection goes to the entire instru- ment, irrespective of its provisions in favor of one person or another. And if the will as a whole was procured through undue influence, the same reasoning applies. If the testator was of sound mind, but certain provisions in favor of a particular legatee or devisee were procured through the undue influence of such beneficiary, and such provisions can be eliminated without affecting or destroy- ing the intent of the testator as expressed in the instru- ment, such part of the will may be rejected and the re- mainder may be admitted to probate.^* Yet fraud and undue influence, especially the latter, are closely allied to mental incompetency.^''' Unless it can clearly be shown by the evidence that the testator's mind was unduly influ- enced or unbalanced as to the particular provisions sought strong V. Farrar, 8 Mo. 627; Allen 36 Trimlestown v. D' Alton, 1 V.Allen's Admr., 26 Mo. 327; Barn- Dow & CI. 85; Haddock v. Trot- hardt v. Smith, 86 N. C. 473. The man, 1 Fost. & Fin. 31; Lyons v. two Missouri cases above cited Campbell, 88 Ala. 462, 7 So. 250; were subsequently overruled in Eastis v. Montgomery, 93 Ala. 293, Schierbaum v. Schemme, 157 Mo. 9 So. 311; Ogden v. Greenleaf, 1, 80 Am. St. Rep. 604, 57 S. W. 143 Mass. 349, 9 N. E. 745; In re 526. Welsh, 1 Redf. Sur. (N. Y.) 238. 35 Morris v. Stokes, 21 Ga. 552, 37 See, ante, § 361, E69. 500 COMMENTARIES ON THE LAW OP WILLS. to be eliminated from the will, and was sound and un- prejudiced as to the balance, since testamentary capacity is involved in the issue it is difficult to see how the testator can be said to have been competent to make one part of the will, yet have been incompetent as to the remainder.^* §369. The Same Subject: Inadmissible in Evidence. The weight of authority is against admitting in evidence the admissions against interest of one of several legatees, even as against the declarant. When a will which has been offered for probate is contested, the issue is the validity of the will, whether the point in controversy be the testamentary capacity of the testator or undue influ- ence on the part of one of the legatees in procuring the will. Should one beneficiary have made a statement that he had unduly influenced the testator, such an admission should not be received as evidence against the others who are innocent of wrong-doing. To establish undue influ- ence, evidence is admitted which tends to show that the testator was of that peculiar mental structure, was sub- ject to such passion or prejudice, or was of such feeble will or so mentally infirm, as to render him a prey to the influence. The liability of the testator to be affected by the undue influence is material, and evidence of mental capacity must necessarily be introduced. The same prin- ciple applies, to a degree, in a case where the charge is that the will was procured by fraud. It may be said that the existence and exercise of undue influence necessarily presuppose weakness of mind to some extent; and it is doubtful whether the acts of one of perfectly sound mind could be set aside on such a ground unless, in addition thereto, fraud or imposition was proved. And neither 38Hildreth v. Hildreth, 153 Ky. 597, 156 S. W. 144, 145. EULES OF EVIDENCE. 501 fraud nor attempted influence is of consequence where tlie mind of the testator is sufficient to resist them."* §370. The Same Subject. The validity of the will is the issue and it makes no difference whether such admissions relate to the opinion of the declarant as to the mental capacity of the testator, or his own. fraudulent acts in procuring the will. In either case they are merely declarations of one party against the rights of others who do not have a joint inter- est with the declarant in the subject matter affected. Such admissions by one of several beneficiaries should not be received in evidence to conclude the rights of those who take under the will. The decisions are not unanimous, but the weight of authority is that such admissions should be rejected for all purposes. They can not be accepted even for the limited purpose of being considered against the declarant and not against the other interested parties, since they can not be considered by the jury without affecting the rights of others. Such evidence goes to the issue of devisavit vel non, in which all are interested.*" 39 Shailer v. Bumstead, 99 Mass. Rep. 604, 57 S. W. 526; Osgood v. 112, 121. Manhattan Co., 3 Cow. (N. Y.) 612, 40Blakey's Heirs v. Blakey's 15 Am. Dec. 304; Dan v. Brown, Ex., 33 Ala. 611, 616; Dale's Ap- 4 Cow. (N. Y.) 483, 15 Am. Dec. peal, 57 Conn. 127. 17 Atl. 757; 395; Matter of Kennedy's Will, Hellman v. Burrltt, 62 Conn. 438, 167 N. Y. 163, 60 N. E. 442; 26 Atl. 473; McMillan v. McDill, Thompson v. Thompson, 13 Ohio 110 111. 47; Will of Ames, 51 Iowa St. 356; Bovard v. Wallace, 4 596, 2 N. W. 408; Dye v. Young, Serg. & R. (Pa.) 499; Clark v. 55 Iowa 433, 7 N. W. 678; Phelps Morrison, 25 Pa. St. 453; Titlow V. Hartwell, 1 Mass. 71; Shailer v. Titlow, 54 Pa. St. 216, 93 Am. V. Bumstead, 99 Mass. 112, 127; Dec. 691; Whitelaw's Admr. v. O'Connor v. Madison, 98 Mich. Whitelaw's Admr., 96 Va. 712, 32 183, 57 N. W. 105; Schierbaum v. S. E. 458; Forney t. Ferrell, 4 Schemme, 157 Mo. 1, 80 Am. St. W. Va. 729. 502 COMMENTABIES ON THE LAW OF WILLS. And for the same reason, admissions against his interest by one of several contestants are inadmissible.*^ § 371. Declarations of Subscribing Witnesses. The rule announced in the preceding section, accord- ing to the weight of authority, applies with like force to the admissions of all third parties, even though they may have been subscribing witnesses to the will. Any declara- tion or expression of opinion by an attesting witness, except on the witness stand and under oath, would be hearsay. He is allowed to give his opinion as to the mental condition of the testator, but if either party de- sires such opinion, he must call him as a witness. If the subscribing witness is dead, neither party can put in evidence any extrajudicial statements which he may have made regarding the testator's mental capacity. Such statements are not admissible for the purpose of invalidating the will.*^ The declarations of a legatee, say rule. It is equally well set- ■whether made at about the time tied that, when the person whose of the making oif the will or suhse- declarations are sought to be quent thereto, that she had know!- shown, is alive, they^ are not corn- edge of the execution of the will petent against strangers, or those and of its provisions, are not claiming a common but not a admissible in evidence on the joint interest. That persons tak- issue of testamentary capacity. — ing a devise, or bequest, in a will Ormsby v. Webb, 134 U. S. 47, 65, have a community of interest, but 33 L. Ed. 805, 10 Sup. Ct. 478. not a joint interest, is well set- In Linebarger v. Linebarger, 143 tied." N. C. 229, 10 Ann. Cas. 596, 55 4i Parsons v. Parsons, 66 Iowa S. E. 709, the court says: "It is 754, 21 N. W. 570, 24 N. W. 564. elementary learning that a party's 42 Stobart v. Dryden, 1 Mees. declarations against his own inter- & W. 615; Mason v. Poulson, 40 est, or those claiming under him, Md. 355; Stirling v. Stirling, 64 are always competent, this being Md. 138, 21 Atl. 273; Baxter v. one of the exceptions to the hear- Abbott, 7 Gray (Mass.) 71; Sewall RULES OP EVIDENCE, 503 § 372. Declarations Admissible for Purpose of Impeachment. We have heretofore referred to the proof of the state- ments or admissions of one person by the testimony of another. Any one, be he legatee, devisee or subscribing witness, who takes the witness stand and testifies to any matter pertinent to the issue, whether it be testamentary capacity, fraud, undue influence, or other matter, can be confronted with statements he may previously have made which are at variance with his testimony, for the purpose of impeachment. If he denies having made the statements, proof of them is allowed, but only for the purpose of discrediting him as a witness.*^ The pro- ponent, by calling an attesting witness to the stand to testify regarding those facts which can be established V. Robbins, 139 Mass. 164, 29 N. E. 650; Boardman v. Woodman, 47 N. H. 120. In some cases, however, the dec- larations of a subscribing witness to the will of a decedent to the effect that the testator was lack- ing in mental capacity, have been held admissible to rebut the prima facie case made by the declarant's attestation of the will. See Town- shend v. Townshend, 9 Gill (Md.) 506; Colvin v. Warford, 20 Md. 357; Black v. Ellis, 3 Hill L. (S. C.) 68. 43 Stirling v. Stirling, 64 Md. 138, 21 Atl. 273. See, also. Mason V. Poulson, 40 Md. 355. Some decisions hold that the fact that an attesting witness sub- scribed his name as such to the will was in legal effect an asser- tion by him that the maker was mentally competent; while others hold that the signing and attest- ing of a will raise no presump- tion of testamentary capacity. Therefore a declaration by a sub- scribing witness, reflecting on the competency of the testator, would not be contradictory of any act on his part, and would be hearsay. — Baxter v. Abbott, 7 Gray (Mass.) 71; Sewall v. Robbius, 139 Mass. 164, 29 N. E. 650; Board- man V. Woodman, 47 N. H. 120; Runyan v. Price, 15 Ohio St. 1, 86 Am. Dec. 459. Compare: Speer v. Speer, 146 Iowa 6, 140 Am. St. Rep. 268, 27 L. R. A. (N. S.) 294, 123 N. W. 176; Crenshaw v. Johnson, 120 K. C. 270, 26 S. E. 810; Sellars v. Sellars, 2 Heisk. (Tenn.) 430. A distinction has been made be- tween cages where the will is proved by the signature of a de- ceased witness (Harden v. Hays, &04 COMMENTARIES ON THE LAW OF WILLS. only by such a witness, does not thereby make him his witness so that he can not contradict or impeach him.** §373. Declarations Ag^ainst Interest by a Sole Benefictiary Admissiblie in Evidence. When there is but a sole beneficiary under a will, the situation is obviously different. Any admission against interest which he may have made can affect no one but himself. The reason for the rule which applies to the declarations of one of several legatees does not obtain where there is but one beneficiary. He is the sole party interested on one side and his declarations or admissions are admissible in evidence against him.*^ And the same rule has been applied after the death of the sole legatee, his interest under the will being represented by his heir.*® §374. Classification of Witnesses Who May Testify as to Testamentary Capacity of the Testator. Those who may be called upon to testify on the issue of the testamentary capacity of the testator may be di- 9 Pa. St. 151), and where it Is who uses him as the subscribing otherwise established (Fox v. witness." — Crowell v. Kirk, 14 Evans, 3 Yeates (Pa.) 506). In N. C. 355. the first instance, admissions is McMillan v. McDill, 110 111. were held admissible, but not in 47; Campbell v. Campbell, 138 111. the last. 612, 28 N. E. 1080; Egbers v. Eg- 44 "Nor is it correct to say, that bers, 177 111. 82, 52 N. E. 285; a person who calls a witness to a Wallis v. Luhring, 134 Ind. 447, will is bound to take his testi- 34 N. E. 231; Lundy v. Lundy, mony as true. He is not his wit- 118 Iowa 445, 92 N. W. 39; Stull ness, but that of the law. The v. Stull, 1 Neb. Unof. 380, 389, party is obliged to call the sub- 96 N. W. 196; Fairchild v. Bas- scribing witness; another to the comb, 35 Vt. 398. same fact will not answer. There- 48 Wallis v. Luhring, 134 Ind. fore, he may contradict and dis- 447, 34 N. E. 231. credit him, and so may any person RULES OP EVIDENCE. 505 vided into three general classes: Subscribing witnesses to the will, experts, and lay witnesses generally. This classification is of importance when a witness is called upon to express an opinion. It is the general rule that a witness may testify only as to facts within his per- sonal knowledge, and may not express his opinion or judgment as to matters which the court or the jury is required to determine, or which constitute elements of such determination.*^ There are, however, exceptions to this rule, and where, in a will contest, the question of testamentary capacity is involved, witnesses may, in varying degrees and under varying circumstances, state their opinions.*^ § 375. Subscribing Witnesses Should Satisfy Themselves That the Testator Is of Sound Mind. The decisions are not harmonious as to whether or not the fact that a witness attests the will of another in eifect makes him vouch for the mental capacity of the testator. It may be well, however, to first refer to some of the matters involved. In the absence of statutory require- ment, it is not necessary to state in the attestation clause that the testator was of sound mind.** The witness need 47 Wyman V. Gould, 47 Me. 159 ; Contra: Hardy v. Merrill, 56 Robinson v. Adams, 62 Me. 369, N. H. 227, 22 Am. Rep. 441. 410, 16 Am. Rep. 473; De Witt v. 48 See, post, §§ 380-382, as to Barley, 9 N. Y. 371; s. c, De Witt opinion evidence of subscribing V. Barley, 17 N. Y. 340; Clapp v. witnesses. Fullerton, 34 N. Y. 190, 195, 90 See, post, §§ 376-379, as to opin- Am. Dec. 681; O'Brien v. People, ion evidence of expert witnesses. 36 N. Y. 276, 282; Van Pelt v. See, post. If 383-388, as to lay Van Pelt, 30 Barb. (N. Y.) 134, witnesses testifying to their opin- 141; Gehrke v. State, 13 Tex. 568. ions. Compare: State v. Pike, 49 49 Murphy v. Murphy, 24 Mo. N. H. 399, 6 Am. Rep. 533; Dela- 526. See, also. Fry v. Morrison, field V. Parish, 25 N. Y. 9, 37, 38. 159 111. 244, 42 N. E. 774. 506 COMMENTARIES ON THE LAW OP WILLS. not know the contents of the mstrument,'" and unless the law requires publication or acknowledgment by the testator of the instrument as his will, the witness may not know the nature of the document.^^ It is said, how- ever, that it is the duty of an attesting witness to judge of the testator's mental capacity as well as to protect him against fraud in the execution of his will.^^ Even where the subscribing witnesses relied upon the declara- tions of another as to the mental condition of the tes- tator, it has been said that such was not sufficient evi- dence to justify them in putting their names to the will as witnesses, and that it was in fact a fraud upon those whose rights were affected thereby.^* The weight of au- thority is that no person is justified in attesting a will unless he knows from the testator himself that the tes- so'Leverett's Heirs v. Carlisle, 19 Ala. 80; Turner v. Cook, 36 Ind. 129, 136; In re Higdon's Will, 6 J. J. Marsh (29 Ky.) 444, 22 Am. Dec. 84; Roche v. Nason, 105 App. Div. (N. Y.) 256, 93 N. Y. Supp. 565; In re Baker's Appeal, 107 Pa. St. 381, 52 Am. Rep. 478. 51 Gould V. Chicago Theological Seminary, 189 111. 282, 59 N. B. 536; Savage v. Bulger, 25 Ky. Law Rep. 763, 76 S. W. 361; Skinner V. American Bible Soc, 92 Wis. 209, 65 N. W. 1037. 82 "It is the duty of subscribing witnesses to inform themselves of the testator's mental capacity be- fore attesting the will. Witnesses are required by the law not alone to protect the testator against fraud in the execution of his will, but also to judge of his capacity, which is primarily established by their oaths when the will is offered for probate; but it will be presumed, until the contrary Is shown, that they have discharged their duty." — Jones v. Collins, 94 Md.. 403, 51 Atl. 398. But compare Williams v. Lee, 47 Md. 321, where two surviving at- testing witnesses, one of whom had prepared a codicil to the will •which was offered for probate with it, testified that the testatrix was incompetent at the date of the execution of her will and the codicil in question. The circum- stances of the case, however, were satisfactorily explained, they being merely to humor the follies of an unbalanced mind. 63 Scribner v. Crane, 2 Paige (N. Y.) 147, 21 Am. Dec. 81. RULES OF EVIDENCE. 507 tator understands what he is doing, and unless the wit- ness is satisfied in his own mind as to the testator's men- tal capacity. A person, signing his name as a witness to a will, by his act of attestation vouches for the sanity of the testator.^* And if a subscribing witness thereafter attempts to give testimony discrediting the mental ca- pacity of the testator, such evidence should be received with caution and closely scrutinized.®* The circum- stances of the case, however, may cause the rule to re- lax.** And in some decisions it is held that no inference can be drawn from the mere fact that a person sub- 54 In re Tyler's Estate, 121 Cal. 405, 413, 53 Pac. 928; In re Nel- son's Estate, 132 Cal. 182, 183, 64 Pac. 294; In re Motz's Estate, 136 Cal. 558, 69 Pac. 294; In re Field's Appeal, 36 Conn. 277; Withlnton v. Withinton, 7 Mo. 589; Southwortli v. Southworth, 173 Mo. 59, 73, 73 S. "W. 129; Hughes V. Rader, 183 Mo. 630, 702, 82 S. W. 32; Thomasson v. Hunt, (Mo.) 185 S. W. 165; Hey- ward V. Hazard, 1 Bay. (S. C.) 335; Young v. Earner, 27 Grat. (Va.) 96. "By placing his name to the In- strument ithe witness, in effect, certifies to his knowledge of the mental capacity of the testator; and that the will was executed by him freely and understandingly, with a full knowledge of Its con- tents. Such is the legal effect of the signature of the witness when he Is dead or out of the jurisdic- tion of the court." — Scribner v. Crane, 2 Paige (N. Y.) 147, 21 Am. Dec. 81. 65 In re Nelson's Estate, 132 Cal. 182, 183, 64 Pac. 294; Thomasson V. Hunt, (Mo.) 185 S. W. 165; Young V. Bamer, 27 Grat. (Va.) 96; In re Lewis' Will, 51 Wis. 101, 7 N. W. 829; Loughney v. Lough- ney, 87 Wis. 92, 58 N. W. 250. "When a witness who has sol- emnly subscribed his name to a will as an attesting witness, know- ing the nature of his act, and that deceased would rely upon his name as a part of the execution of the will, undertakes by his evidence to overthrow or cast sus- picion upon it, his evidence should be closely scrutinized." — In re Motz's Estate, 136 Cal. 558, 69 Pac. 294, citing In re Tyler's Es- tate, 121 Cal. 405, 413, 53 Pac. 928. 56 "This rule, though just in its general application, ought not to be vigorously applied to a case like this, when the circumstances clearly show that the witnesses were suddenly called on and, with a haste dictated by the author and propounder of the paper, which 508 COMMENTABIES ON THE LAW OF WILLS. scribed his name as a witness to a will, and that by such act he does not express a silent belief that the testator is of sound mind.^^ § 376. Opinions of Medical Experts Admissible. An exception to the general rule that a witness must testify only as to facts within his own knowledge and not express merely his belief, is that an expert, one having a special knowledge of the matter in controversy, may give his opinion. A medical expert, one who by study and experience is familiar with the symptoms of mental dis- orders, may, by stating his belief, assist the court or jury in arriving at a correct conclusion. The opinion of such left them no time for due delib- eration; and when called upon to testify, as they were, in behalf of the propounder, they were In duty bound to detail truly the facts and circumstances, in doing which they offered the only avail- able and reliable data from which to draw proper judicial conclu- sions. They do not, therefore, strictly speaking, occupy the atti- tude of subscribing witnesses seeking to invalidate the will, but rather that of such witnesses dis- closing the circumstances which led them to act inadvertently, and the facts touching and incident thereto." — Tucker v. Sandidge, 85 Va. 54G, 571, 8 S. E. 650. 57 In Baxter v. Abbott, 7 Gray (Mass.) 71, the court says: "The fact that he attested the will as a witness does not, we think, fur- nish evidence of any opinion he had as to the sanity of the tes- tator. He may have had no opin- ion on the subject. He may have attested the will with the full be- lief that the testator was insane, and with the view of testifying to that opinion whenever the will should be offered for probate. No Inference as to his opinion can be drawn from the mere fact of signing; and therefore evidence of a contradictory opinion ex- pressed by him was inadmissible." Strangers frequently execute wills when they are unknown to the subscribing witnesses. By ac- cepting an introduction by name, and by signing such name to his will, the testator acknowledges his Identity. This is ordinarily sufficient unless Identity is made a special Issue by the pleadings. — Harris v. Martin, 150 N. C. 367, 17 Ann. Gas. 685, 21 L. R. A. (N. S.) 531, 64 S. E. 126. RULES OP EVroENCB. 509 an expert may be based on facts within Ms personal knowledge, or be an answer to a hypothetical question based on the testimony of others.'* The opinion can not be asked on hypothetical facts not in evidence in the case.'* The force and weight of such opinion must neces- sarily depend upon the truth or falsity of the facts em- bodied in the question. If the facts are erroneously assumed, or determined to be untrue, the opinion of the expert that the testator was insane would not destroy the presumption of testamentary capacity.®" §377. Who Are Medical Experts. The general rule is that a practicing physician may give his opinion regarding insanity without having made a specialty of such subject.*^ But a physician who has devoted his time to some other branch of the profession 58 In re Overpeck's WiU, 144 375, 385; Potts v. House, 6 Ga. Iowa 400, 120 N. W. 1044, 122 324, 50 Am. Dec. 329; Hurst v. N. W. 928; In re Eveleth's Will, Chicago, Rock Island & P. R. Co., (Iowa) 157 N. W. 257; Crockett 49 Iowa 76, 79; In re Ames, 51 V. Davis, 81 Md. 134, 149, 31 Atl. Iowa 596, 2 N. W. 408; Common- 710; Jones v. Collins, 94 Md. 403, wealth v. Rich, 14 Gray (Mass.) 51 Atl. 398; May v. Bradlee, 127 335; Gibson v. Gibson, 9 Yerg. Mass. 414; Kempsey v. McGinniss, (17 Tenn.) 329. 21 Mich. 123; Rice v. Rice, 50 60 Philips v. Philips, 77 App. Mich. 448, 15 N. W. 545. Div. (N. T.) 113, 78 N. Y. Supp. Books on medical science or in- 1001. sanity, if objected to, can not be ei Davis v. United States, 165 read in evidence. — McNaghten's U. S. 373, 41 L. Ed. 750, 17 Sup. Case, 10 CI. & Fin. 200; Ware Ct. 360; Porter v. State, 140 Ala. v. Ware, 8 Greenl. (Me.) 42; Davis 87, 37 So. 81; Matter of MuUin's V, State, 38 Md. 15; Common- Estate, 110 Cal. 252, 42 Pac. 645; wealth V. Sturtivant, 117 Mass. People v. Sowell, 145 Cal. 292, 122, 19 Am. Rep. 401. 78 Pac. 717; In re Barber's Appeal, 59 Harrison v. Rowan, 3 Wash. 63 Conn. 393, 22 L. R. A. 90, 27 C. C. 580, 587, Fed. Cas. No. 6141; Atl. 973; Taylor v. State, 83 Ga. Duffleld r. Robeson, 2 Har. (Del.) 647, 10 S. E. 442; Schneider v. 510 COMMENTAEIES ON THE LAW OP WILLS. and has not made a study of or had experience with in- sanity cases, is lacking in the qualifications required for an expert in matters of testamentary capacity.^^ The case would be different were he the attending physician, for in such capacity his professional duties require that he acquaint himself with aU the peculiar mental and physical characteristics of the patient, and he can thus testify from his own knowledge and state his opinion.** §378. Medical Experts Should State Facts to Give Their Opinions Weight. The general rule is that the opinion of an expert is admissible only if the subject matter is within the range Manning, 121 111. 376, 12 N. B. 267; White V. McPlierson, 183 Mass. 533, 67 N. E. 643; Rlvard v. Rl- vard, 109 Mich. 98, 63 Am. St. Rep. 566, 66 N. W. 681; People v. Bai> ber, 115 N. T. 475, 22 N. E. 182; People V. Hoch, 150 N. Y. 291, 44 N. E. 976. 62 Reed V. State, 62 Miss. 405. "The mere fact that a person was by education a physician, if he had not practiced his profes- sion, we should not deem sufficient to justify his admission as an expert. So if he devoted himself exclusively to one branch of his profession and had no practical experience in that subject-matter to which he was called to testify — as if an oculist was called to tes- tify about insanity — we should not deem him admissible." — Fair- child V. Bascomb, 35 Vt. 398. A physician who has not made the subject of mental disease a special study Is not competent to testify whether a person living lu his neighborhood and well known to him, but who had never been his patient, was competent to ap- ply the rules of right and wrong in a state of circumstances con- cerning which he was under high excitement or the influence of an uncontrollable impulse. — Common wealth v. Rich, 14 Gray (Mass.) 335. 63 Hall V, Perry, 87 Me. 569, 47 Am. St. Rep. 352, 33 AO. 160. "It is the duty of the attending physician to make himself ac- quainted with the peculiarities, bodUy and mental, of the person . who is the subject of his care and advice, and he has the expe. rience which results from the per- formance of the same duty in other cases. He is therefore per- mitted to testify from his own observation to his opinion of his RULES OF EVIDENCE. 511 of his particular study, and that it is one which the ordinary knowledge and experience of life do not en- able the layman to draw proper inferences.** The ques- tion as to whether or not a testator had possessed tes- tamentary capacity when he made his will is not always best solved by abstruse metaphysical analysis. An expert may better diagnose a case, he may explain it in scientific terms, but he can not better observe common facts or definitely tell when a mental derangement has reached the stage where the sound mind changes to un- sound.®' Although it has been held that a physician may give his opinion as to the mental capacity of a testator with- out stating the facts in his possession upon which he bases his belief, leaving the weight of his opinion to be tested on cross-examination,®* yet the facts should be stated. If the opinion of the physician is not given in answer to a hypothetical question, in order that he be allowed to express it, it should be shown that he had the means of adequate personal observation.*'^ Then again, although an expert may testify as to the degree of the patient's mental capacity to make to learn whether she was in a a will, in connection with the proper condition of mind to make facts upon which that opinion is a confession, it was held that he founded." — ^Hastings v. Rider, 99 was competent to give an opinion Mass. 622. as to her mental condition. — ^In re 64 Muldowney v. Illinois Cent. Toome's Estate, 54 Cal. 509, 35 Ry. Co., 36 Iowa 462, 473; Metro- Am. Rep. 83. politan Sav. Bank v. Manion, 87 65 Rutherford v. Morris, 77 111. Md. 68, 80, 39 Atl. 90. 397; Berry v. Safe Deposit & T. Where it was In evidence that Co., 96 Md. 45, 53 AU. 720. a Romish priest, versed in physl- 66 Crockett v. Davis, 81 Md. 134, ology and psychology, and daily 149, 31 Atl. 710; Jones v. Collins, required to exercise his judgment 94 Md. 403, 51 Atl. 398. upon the question of mental con- 67 Safe Deposit & Trust Co. v. dition, had examined the testatrix Berry, 93 Md. 560, 49 Atl. 401. 512 COMMENTAEIES ON THE LAW OF WILLS. intelligence of the testator, yet testamentary capacity is a question of fact, and is the ultimate fact which the court or jury must determine.** § 379. The Same Subject. An abstract opinion is of little value and is not suffi- cient, without facts to sustain it, to justify the rejection of a will offered for probate.*® If a physician expresses an opinion based on personal knowledge and not in an- swer to a hypothetical question, he should state the facts upon which it is founded. The facts furnish the safest evidence and the court or jury may draw its own in- ferences. Opinions are not to be disregarded, but the facts should also be stated, and it then must be left to the court or jury to determine whether the facts, as weU as the opinion based upon them, are true or false.''" 68 Baker v. Baker, 202 111. 595, pacity. — ^Appleby v. Brock, 76 Mo. 67 N. E. 410; Kempsey v. McGin- 314. nlss, 21 Mich. 123; Page v. Beach, 69 Burley v. McGough, 115 111. 134 Mich. 51, 95 N. W. 981; In re 11, 3 N. B. 738. Peterson, 136 N. C. 13, 48 S. E. In Stackhouse v. Horton, 15 561; Nashville etc. R. Co. v. Brun- N. J. Bq. 202, Chancellor Green dige, 114 Tenn. 31, 4 Ann. Cas. says: "The abstract opinion of 887, 84 S. W. 805. any witness, medical or of any The opinions of witnesses, ex- other profession, is not of any im- pert or non-expert, must be as to portance. No judicial tribunal the state of the testator's mind would be justified in deciding at the time the will was made, against the capacity of a testator The question of testamentary ca- upon the mere opinion of wit- pacity is for the jury; and they nesses, however numerous or re- can not give their opinions as to spectable. . . . The opinion of this ultimate fact. — Councill v. a witness must be brought to the Mayhew, 172 Ala. 295, 55 So. 314. test of facts that the court may A verdict can not be upset by judge what estimate the opinion subsequently showing that the ex- is entitled to." perts had no understanding of the to Hathorn v. King, 8 Mass. 371, true criterion of testamentary ca- 5 Am. Dec 106; Dickinson v. Bar- RULES OF EVIDENCE. 513 § 380. Subscribing Witnesses May State Opinions as to Sanity or Insanity of Testator. On the issue of testamentary capacity tlie testimony of subscribing witnesses is of great importance. Having been present at the time of the execution of the will, hav- ing to a greater or less extent had their attention di- rected to the nature of the act the testator was perform- ing, having been called on to subscribe their names to a particular document as witnesses, and having had the op- portunity of observing the actions of the testator and all surrounding circumstances at the particular moment as to which the mental capacity is to be determined, sub- scribing witnesses, although not experts, are allowed to give their opinions as to the sanity or insanity of the testator at that time,'^^ and as a general rule a non- expert subscribing witness may state his belief, without ber, 9 Mass. 225, 227, 6 Am. Dec. 58; Hastings v. Rider, 99 Mass. 622; Baxter v. Abbott, 7 Gray (Mass.) 71; Kempsey v. McGln- niss, 21 Mich. 123; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Clark V. State, 12 Ohio 483, 40 Am. Dec. 481; Gibson v. Gibson, 9 Yerg. (Tenn.) 329. In Prinsep and The East India Co. V. Dyce Sombre, 10 Moore P. C. C. 232, 248, the court says: "It may be right to observe that the judges of the Prerogative Court, where questions of insan- ity are so frequently mooted, have always held that the most impor- tant evidence where medical per- sons have been examined, is the facts to which they depose, rather than the opinions they have I Com. on Wills— 33 formed; that court holding it more proper to draw its conclusions from fa,cts rather than from the inferences of others, however skilled In cases of insanity; not that the opinions of medical per- sons are disregarded, but that facts deposed to furnish the safest evidence on which a judgment can be founded." 71 In re Crandall's Appeal, 63 Conn. 365, 38 Am. St. Rep. 375, 28 Atl. 531; Taylor v. Cox, 153 111. 220, 38 N. B. 656; Wallace v. Whit- man, 201 111. 59, 66 N. E. 311; Par- sons V. Parsons, 66 Iowa 754, 21 N. W. 570, 24 N. W. 564; Fur- long V. Carraher, 108 Iowa 492, 493, 79 N. W. 277; Hertrich v. Hertrich, 114 Iowa 643, 89 Am. St. Rep. 389, 87 N. W. 689; Durant 514 COMMENTARIES ON THE LAW OP WILLS. giving the facts upon which it is founded.''^ The opinion of a subscribing witness, however, must be based on what he saw and heard at the time the will was made. He can not give his belief in answer to hypothetical questions; in that respect he is the same as any non- expert witness.'^* And his opinion should be limited to that which he had at the time the will was executed, not to one subsequently formed.'^* § 381. Subscribing Witnesses Should State Facts So That Value of Opinions May Be Judged. The facts upon which the opinion of a subscribing wit- ness is based may in all cases be called for in the cross- examination, and the court or jury must be left to de- termine whether the facts stated, as well as the opinion V. Wliitcher, 97 Kan. 603, 156 Pao. 739; Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473; Williams v. Lee, 47 Md. 321; Wiisner v. Whls- ner, 122 Md. 195, 89 Atl. 393; Hastings v. Rider, 99 Mass. 622; Earlier v. Comlns, 110 Mass. 477, 487; Nasli v. Hunt, 116 Mass. 237, 251; May v. Bradlee, 127 Mass. 414, 421; Beaubien v. Cicotte, 12 Mich. 459; Appleby v. Brock, 76 Mo. 314; Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441; Elkin- ton V. Brick, 44 N. J. Eq. 154, 1 L. R. A. 161, 15 Atl. 391; De Witt V. Barley, 9 N. Y. 371; Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681; Kaufman v. Caughman, 49 S. C. 159, 61 Am. St. Rep. 808, 27 S. E. 16. 72 Scott V. McKee, 105 Ga. 256, 31 S. E. 183; Parsons v. Parsons, 66 Iowa 754, 21 N. W. 570, 24 N. W. 564; Furlong v. Carraher, 108 Iowa, 492, 493, 79 N. W. 277; Hert- rlch V. Hertrich, 114 Iowa 643, 89 Am. St. Rep. 389, 87 N. W. 689; Jones V. Collins, 94 Md. 403, 51 Atl. 398; Robinson v. Adams, 62 Maine 369, 16 Am. Rep. 473; Williams v. Spencer, 150 Mass. 346, 15 Am. St. Rep. 206, 5 L. R. A. 790, 23 N. B. 105; Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681; Titlow v. Titlow, 54 Pa. St. 216, 93 Am. Dec. 691. But see Kempsey v. McGin- nlss, 21 Mich. 123; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Turner v. Cheesman, 15 N. J. Eg. 243. 73 Plttard V. Foster, 12 111. App. 132; Doe v. Reagan, 5 Blackf. (Ind.) 217, 33 Am. Dec. 466. 74 Williams v. Spencer, 150 Mass. 346, 15 Am. St. Rep. 206, 5 L. R. A. 790, 23 N. E. 105. EXILES OP EVIDENCE. 515 based thereon, are ■worthy of belief. It is only with a knowledge of the groundwork of an opinion that the court or jury can judge of its value.''® Where a sub- scribing witness has testified to the actions and conduct of the testator at the time the will was executed, a ques- tion which calls upon him to state his opinion as to the mental capacity at such time of the testator to execute the will and to know its effects upon his children and property, does not call for the condition of the testator's mind based upon the fact that the witness was one of the subscribing witnesses to the will, but asks for his opinion as to the testator 's condition of mind based upon the tes- timony which he has given. If such witness has not, in his testimony, stated any facts disclosing unsoundness of mind, the contestant could not successfully object if the court refuses to allow an answer. ''® § 382. The Weight Given to Opinions of Subscribing Witnesses. The law presumes that a subscribing witness had his attention directed to and noted the mental capacity of the testator, therefore his opinion should be entitled to more weight than that of one who was merely passive. Having the duty of observation, it will be presumed that a subscribing witness was more observant than others might have been.''^ There is a conflict of opinion, how- ever, but the better rule is that the opinion of a sub- scribing witness is entitled to more weight than the opin- 75 Kempsey v. McGinniss, 21 T7 Potts v. House, 6 Ga. 324, 50 Mich. 123; Rice v. Rice, 50 Mich. Am. Dec 329; Poole v. Richardson, 448, 15 N. W. 545; Tltlow v. Tit- 3 Mass. 330; Clary's Admrs. v. low, 54 Pa. St. 216, 93 Am. Dec. Clary, 2 Ired. L. (24 N. C.) 78. 691. See, ante, § 375; also as to sub- 76 EMrlong V. Carraher, 108 Iowa scribing witness attempting to dis- 492, 493, 79 N. W. 277. credit the mental competency of the testator. 516 COMMENTARIES ON TPIE LAW OP WILLS. ion of a non-expert witness who was not present at the time the will was made, all other matters being equalJ* But any person of equal intelligence, present at the time the will was executed and who had equal opportunity for observation as did a subscribing witness, and who can testify as to the facts, should be able to give an opinion entitled to equal weight with that of an attesting wit- ness.''* Neither the opinion nor the testimony of a sub- scribing witness is conclusive and he may be contradicted by other evidence.*" § 383. Opinions of Lay Witnesses Depend Upon Knowledge of Facts. All men have more or less knowledge regarding sanity or insanity, and can express their conclusions from facts which they have personally observed, which are entitled to weight according to their mental capacity and habits of observation. Upon the issue of testamentary capacity such a person, being non-expert, when called to the wit- ness stand can not give in evidence his opinion based on facts set forth in a hypothetical question or upon facts testified to by others ; yet where such a witness has per- sonal knowledge of the facts and circumstances involved in the controversy, his judgment in such matter, which 78 Kerr v. Lunsford, 31 W. Va. Martin v. Perkins, 56 Miss. 204; 659, 2 L. R. A. 668, 8 S. E. 493. Orser v. Oraer, 24 N. Y. 51. Contra: Turner v. Cheesman, The will of a married woman, 15 N. J. Eq. 243. executed under a power which en- 79 Burney v. Torrey, 100 Ala. abled her to so dispose of certain 157, 46 Am. St. Rep. 33, 14 So. property, which was attested by 685; In re Crandall's Appeal, 63 two witnesses, was held valid al- Conn. 365, 38 Am. St. Rep. 375, 28 though the two subscribing wit- Atl. 531. nesses testified to the insanity of 80 Lowe V. Joliffe, 1 W. Bl. 365; the testatrix. — Le Breton v. Cilley V. Cilley, 34 Maine, 162, 163; Fletcher, 2 Hagg. Eca 558. RULES OF EVIDENCE. 517 is to a greater or less extent understood by all of or- dinary intelligence, is of value. The weight of such judg- ment depends upon the intelligence of the witness and the opportunity for and extent of his observations.^^ It is also affected by the nature of the derangement with which the testator had been afflicted, since in some cases the insanity may be so pronounced that it can be detected by but slight observation, while in other cases the symp- toms may be so obscure that their existence might pass unnoticed except upon the closest scrutiny. § 384. Lay Witnesses Must State Opportunity for Observation. Where a non-expert witness, from personal observa- tion and knowledge of the appearance, manner, habits, conduct and speech of a testator, states his belief re- garding the testator's sanity or insanity, although it is generally designated as an opinion since it is a conclusion of the witness based upon facts personally known to him and which can not be fully and accurately communicated to others, yet it is in reality a statement of fact. Wild or irrational conduct, silly or incoherent language, can not be described or repeated so as to convey to the court or jury the impression which had been received by one who actually saw and heard. It may be impossible for a witness to recite in full detail all the independent facts upon which he bases his opinion; he may have been im- pressed by declarations, actions, or circumstances whicli he but vaguely, if at all, remembers. ^^ The witness should 81 Baker v. Baker, 202 111. 595, because ordinarily it is Impossible 67 N. B. 410. for such a witness to give an ade- 82 In no other way than this can quate description of all the ap- the full knowledge of an unprofes- pearances which to him have indi- sional witness with regard to the cated sanity or insanity. Such tes- issue be placed before the jury, timony has been well described as 518 COMMENTABIES ON THE LAW OF "WILLS. state his opportunity for observation and the reasons for his opinion as to the general fact of sanity or insanity of the testator, and from such evidence it is for the court or jury to test the judgment of the witness and thus arrive at the ultimate conclusion. It is the province of the court or jury to judge of the credibility of the wit- ness and of the truth or falsity of the facts presented in evidence, and all opinions should be given weight ac- cording to the character of the witness and the truth of the facts upon which they are based.*^ a compendious mode of ascertain- ing the result of the actual ob- servations of ■witnesses. Ordi- narily, and perhaps necessarily, the witness in testifying to his opportunities for, and his actual observation, relates more or less fully the instances of his conver- sation or dealings with the person whose mental capacity is under consideration, and it is, of course, competent, either upon direct or cross-examination, to elicit those Instances in detail. — Turner v. American Security and Trust Co., 213 TJ. S. 257, 53 L. Ed. 788, 29 Sup. Ct. 420. "Wherever the particulars are quite numerous, a witness is al- lowed to testify what he knows as the result of his observation of facts, and thus to testify to the general fact rather than to recite every circumstance that conduces to that knowledge. . . . This rule has been very generally in this country applied to the case of Insanity." Such rule prevailed in the ecclesiastical courts of Eng- land, but not in their courts of common law. It has always pre- vailed in Connecticut. — Dunham's Appeal, 27 Conn. 192, 198. The paucity of language and the inability of witnesses to describe graphically the facts which they have observed and which left defi- nite impressions in their minds, render every effort to convey to the jury an adequate conception of the ultimate fact futile, except by announcing the conclusions of their own minds. — Holland v. Zollner, 102 Cal. 633, 636, 36 Pac. 930, 37 Pac. 231. ssPoweU V. State, 25 Ala. 21, 28; People v. Sanford, 43 Cal. 29; Grant v. Thompson, 4 Conn. 203, 10 Am. Dec. 119; Dunham's Ap- peal, 27 Conn. 192, 193; DufHeld v. Morris's Exr., 2 Har. (Del.) 375, 384; Potts V. House, 6 Ga. 324, 50 Am. Dec. 329; Rutherford v. Mor- ris, 77 111. 397; Butler v. St. Louis Life Ins. Co., 45 Iowa 93; State v. Klinger, 46 Mo. 224, 229; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State V. Archer, 54 N. H. 465; RULES OF EVIDENCE. 519 § 385. Lay Witnesses May State Facts and Give Opinion Based on Them. It is well settled that a non-expert witness, although not a subscribing witness and not present at the exe- cution of the will, may testify as to the mental condition of the testator, provided he had adequate opportunity for observation and formation of judgment. Where such a lay witness has had sufficient opportunity to observe the speech and conduct of a testator he may, in addition to relating the significant instances of speech and con- duct, give his opinion as to the mental capacity of the testator formed at the time from such observation. Be- fore he can express such opinion, however, he must first state the facts upon which his conclusion rests. After fully stating the facts, he may state his opinion.^* If such facts fairly warrant the conclusion which the witness Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441; De Witt v. Barley, 17 N. Y. 340, 342; Hewlett v. Wood, 55 N. Y. 634; Clark v. State, 12 Ohio 483, 40 Am. Dec. 481; Wilkinson v. Pearson, 23 Pa. St. 117, 119; Pidcock v. Potter, 68 Pa. St. 342, 8 Am. Rep. 181; Dove v. State, 3 Heisk. (50 Tenn.) 348; Holcomb V. State, 41 Tex. 125; Morse V. Crawford, 17 Vt. 499, 44 Am. Dec. 349; Hathaway's Admr. \. National Life Ins. Co., 48 Vt. 335. 84 Connecticut Mutual Life Ins. Co. V. Lathrop, 111 U. S. 612, 28 L. Ed. 536, 4 Sup. Ct. 533; Queenan V. Oklahoma, 190 V. S. 548, 47 L. Ed. 1175, 23 Sup. Ct. 762; Turner v. American Security & Trust Co., 213 U. S. 257, 53 L. Ed. 788, 29 Sup. Ct. 420; Macafee v. HIggins, 31 App. D. C. 355; Jarvis V. State, 70 Ark. 613, 67 S. W. 76; Potts V. House, 6 Ga. 324, 50 Am. Dec 329; Credille v. Credille, 131 Ga. 40, 61 S. B. 1042; Snell v. Weldon, 239 111. 279, 87 N. E. 1022; Pelamourges v. Clark, 9 Iowa 1; Parsons v. Parsons, 66 Iowa 754, 21 N. W. 570, 24 N. W. 564; Durant V. Whitcher, 97 Kan. 603, 156 Pac. 739; State v. Smith, 106 La. 33, 30 So. 248; Waters v. Waters, 35 Md. 531, 542; Kelly v. Kelly, 103 Md. 548, 63 Atl. 1082; V^Tiisner v. Whisner, 122 Md. 195, 89 Atl. 393; Rice V. Rice, 50 Mich. 448, 15 N. W. 545; Roberts v. Bidwell, 136 Mich. 191, 98 N. W. 100; Lamb v. Lynch, 56 Neb. 135, 76 N. W. 428; Morris v. Osborne (Morris v. Tom- 520 COMMENTARIES ON THE LAW OF WILLS. draws from them, the conclusion is entitled to weight; but if the facts disclosed as the basis of opinion do not legally and logically justify it, such opinion is ordinarily llnson), 104 N. C. 609, 10 S. B. 476; Crenshaw v. Johnson, 120 N. C. 270, 26 S. E. 810; Clary's Admrs. v. Clary, 2 Ired. L. (24 N. C.) 78; In re Rawlings' Will, 170 N. C. 58, 86 S. E. 794, 795; , Auld V. Cathro, 20 N. D. 461, Ann. Cas. 1913A, 90, 32 L. R. A. (N. S.) 71, 128 N. W. 1025; White v. Holmes (Tex. Civ.), 129 S. W. 874; Hopkins v. Wampler, 108 Va. 705, 62 S. B. 926. Contra: Wyman v. Gould, 47 Maine 159; Hastings v. Rider, 99 Mass. 622; Smith v. Smith, 157 Mass. 389, 32 N. E. 348; Ratigan V. Judge, 181 Mass. 572, 64 N. E. 204; McCoy v. Jordan, 184 Mass. 575, 69 N. B. 358. See, also, Boardman v. Wood- man, 47 N. H. 120, but overruled in Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441. In New York, such non-expert witness may only state whether the conduct of the testator was rational or Irrational. — Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681;'*' Rider v. Miller, 86 N. Y. 507; Holcomb v. Holcomb, 95 N. Y. 316; Wyse v. Wyse, 155 N. Y. 367, 49 N. B. 942. The husband of a beneficiary Is a competent witness to express his opinion based upon what he observed while in the presence of the testator. — Ray v. Westall, 267 Mo. 130, 183 S. W. 629. Cal. Civ. Code, § 1870, sub. 10, provides that evidence may be given of "the opinion of a sub- scribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given." The above permits in evi- dence the opinion of an intimate acquaintance as to the mental sanity of a testator, but with the opinion must be given the facts upon which it is founded; the opinion itself can have no weight other than that which the reasons bring to its support. — In re Dol- beer's Estate, 149 Cal. 227, 9 Ann. Cas. 795, 86 Pac. 695, 699. Intimate acquaintances, by vir- tue of the existence of such inti- macy, are permitted to testify and give their opinion upon the ques- tion of the sanity or insanity of the deceased, and the weight of this opinion evidence in each in- stance depends upon the facts forming the basis of it. — ^In re MarUn's Estate, 170 Cal. 657, 151 Pac. 138. Opinions of persons acquainted with the testator's business and social habits are admissible. — Brook's Estate, 54 Cal. 471. A neighbor who had known the testartor for a long time and had RULES OP EVIDENCE. 521 of little probative weight as evidence of mental inca- pacity.®^ Facts must be stated so that it may be seen whether the conclusion deduced from them by the wit- ness has any relation to or fairly depends upon them.®® If a witness who is neither an expert nor a subscribing witness, does not disclose such facts and such adequate means of knowledge as to qualify him to give his opinion, he can not state his conclusions as to the mental capacity of the testator.®'' And such a witness can not express an opinion based upon facts not personally observed by him.®^ §386. The Same Subject: Opinion Must Be Based on Facts Given in Evidence by Witness. In interrogating a non-expert witness as to his opinion of the soundness of the testator's mind when the will often dealt with him and con- versed with him before and after the making of the will, is compe- tent to give an opinion as to the soundness of his mind. — Ryman v. Crawford, 86 Ind. 262. The curator of one adjudged in- sane may say whether he ever observed any fact which led hinj to infer that there was any de- rangement of intellect. — May v. Bradlee, 127 Mass. 414. 85 Walker v. Struthers, 273 111. 387, 112 N. E. 961; Alvord v. Al- vord, 109 Iowa 113, 80 N. W. 306; Berry Will Case, 93 Md. 560, 49 Atl. 401; Wood v. Carpenter, 166 Mo. 465, 66 S. W. 172; Story v. Story, 188 Mo. 110, 128, 86 S. W. 225; Thomasson v. Hunt, (Mo.) 185 S. W. 165; Famsworth v. NofC- singer, 46 W. Va. 410, 33 S. B. 246. The opinion of a non-expert witness that the testator was not of sound mind, is entitled to no weight when he states no facts or circumstances which would induce a reasonable belief of unsoundness of mind. — ^Lloyd v. Rush, 273 111. 489, 113 N. E. 125, citing Brainard V. Brainard, 259 III. 613, 103 N. E. 45. 86 Whisner v. Whisner, 122 Md. 195, 89 Atl. 393. 87 In re Berry's Will, 93 Md. 560, 49 Atl. 401; Smith v. Shuppner, 125 Md. 409, 418, 93 Atl. 514; Coughlin V. Cuddy, 128 Md. 76, 96 Atl. 869. 88 Appleby v. Brock, 76 Mo. 314 ; State V. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 169; Bell V. McMaster, 29 Hun (N. Y.) 522 COMMENTARIES ON THE LAW OF WILLS. was executed, the question should be confined to facts re- garding which the witness has testified, and the opinion must be based on such facts. To ask for an opinion generally, allowing the witness to exercise his discretion as to what facts or circumstances he should consider in arriving at a conclusion, is erroneous.^® The test of testamentary capacity may be stated generally to be whether or not the testator was of sound and disposing mind when he executed his will. The opinion of a wit- ness, when admissible, should be directed to such point. A question calling for an opinion as to whether the tes- tator was "entirely sane" would be objectionable.'" And to ask a non-expert witness whether or not a testator was in a mental condition to make a will should not be allowed, since it calls for the opinion of the witness as to the degree of mental capacity required by law.*^ § 387. The Same Subject: Distinction Between Opinions as to Sanity and as to Insanity. A person of sound mind conducts himself rationally and does not manifest those eccentricities which mark the conduct of an unbalanced mind. The rational actions of a normal being pass apparently unnoticed, while irra- tional conduct springing from a disordered mind at- tracts attention. There is therefore a distinction as to the nature of the opinion requested of a non-expert wit- ness. If he testifies that the person is sane, it is, in effect, 272; In re Ross, 87 N. T. 514; 564; Rice v. Rice, 50 Mich. 448, 15 Navasota First National Bank v. N. W. 545. McGinty, 29 Tex. Civ. App. 539, 90 Jones v. Collins, 94 Md. 403, G9 S. W. 495. SI Atl. 398. 89 Ashcraft v. De Armond, 44k 9i Hopkins v. Wheeler, 21 R. I. Iowa 229; Parsons v. Parsons, 66 533, 79 Am. St. Rep. 819, 45 Atl. Iowa 754, 21 N. W. 570, 24 N. W. 551. EULES OP EVIDENCE. 523 saying that there was nothing about the manner of the person whose condition is in question denoting insanity. In such a ease, merely denying the existence of irra- tional conduct should be sufficient, the witness being otherwise qualified.^^ And if facts are not stated, the wit- ness having testified that the person was sane, the error, if any, is slight.^* § 388. Distinction Between Statements of Fact and of Opinion Is Often Slight. The difference between fact and opinion is often very slight. Thus although a non-expert witness may not give his opinion as to the testator's sanity or insanity except in the instance before stated, yet testimony that the wit- ness had noticed "no incoherence of thought," and noth- ing "unusual or singular," ia the testator's mental con- dition, was held admissible as relating to a fact, not an opinion.** Characterizing the acts and declarations of a testator as "rational," or "irrational," has been held to refer merely to matters of fact.*^ Where the issue is as to whether testamentary capacity has been impaired or 92 Parrish v. State, 139 Ala. 16, 94 Nash v. Hunt, 116 Mass. 237. 36 So. 1012; Hemdon v. State, 111 See, also, May v. Bradlee, 127 Ga. 178, 36 S. E. 634. Mass. 414. 93 State V. Soper, 148 Mo. 217, In Massachusetts, witnesses 49 S. W. 1007; State v. HoUoway, who are neither experts nor sub- 156 Mo. 222, 56 S. W. 734. scribing witnesses, can not state The opinion of the witness must their opinions as to the sanity of be directed to the time when the the testator. — Hastings v. Rider, will was made. It might not be 99 Mass. 622; Cowles v. Mer- serlous error if the opinion was chants, 140 Mass. 377, 5 N. E. 288 ; directed to proof of capacity, yet Smith v. Smith, 157 Mass. 389, 32 it might be serious error if it was N. E. 348. directed to proof of Incapacity. — 95 Clapp v. Fullerton, 34 N. Y. Jones V. Collins, 94 Md. 403, 51 190, 90 Am. Dec. 681; Rider v. All. 398. Miller, 86 N. Y. 507. 524 COMMENTARIES ON THE LAW OF WILLS. destroyed by sickness, a non-expert who was well ac- quainted with the testator both in sickness and healtli may be allowed to testify that he saw no difference in his mental condition in sickness or in health. Such an answer is a statement of fact, not an opinion.®® Evi- dence that a person acted strangely or in a childish man- ner is a matter of fact and may be testified to by any one f and the question as to whether or not the testator was an eccentric man is not objectionable as calling for a conclusion.®* § 389. Trial Court Must Determine Qualifications of Witness to Express an Opinion. It must necessarily be left to the discretion of the pro- bate court as to whether or not there is a fair basis for the opinion of a non-expert witness. The court must de- termine whether a given witness has the qualifications which would authorize a statement by him of his opin- ion as to the mental capacity of the testator. The re- 86 Severin v. Zack, 55 Iowa 28, tion, and is not an opinion as to 7 N. W. 404; Kostelecky v. Scher- sanity. — People v. Manoogian, 141 hart, 99 Iowa 120, 68 N. W. 591; Cal. 592, 595, 75 Pac. 177. Hertrich v. Hertrich, 114 Iowa 9T Parsons v. Parsons, 66 Iowa 643; 89 Am. St. Rep. 389, 87 N. W. 754, 21 N. W. 570, 24 N. W. 564. G89. 98 Fraser v. Jennlson, 42 Mich. Testimony of witnesses, who 206, 3 N. W. 882. See, also. In re had a greater or less degree of Pinney's Will, 27 Minn. 280, 6 N. intimacy or acquaintance with the W. 791, 7 N. W. 144. deceased, in answer to questions Asking the witness to state if that do not call for an opinion as he had observed in the testatrix to mental sanity, but as to how "any peculiarities of manner, the deceased appeared to them, Is speech or conduct," and the wit- admissible. — Estate of Keithley, ness answering "no," it was held 134 Cal. 9, 13, 66 Pac. 5. that the question did not call for A statement that a person ap- the opinion of the witness, but tor peared rational or irrational is a fact. — Hogan v. Roche's Heirs, one of fact resulting from observa- 179 Mass. 510, 61 N. E. 57. RULES OF EVIDENCE. 525 sponsibility of the determination of this question is with the judge presiding at the trial, who, having a compre- hensive view of the issues and the evidence produced and having the witness before him, must determine the question as to the propriety of opinion evidence.^* His ruling on the question will not be disturbed on appeal un- less there was a clear abuse of discretion.^ In a clear case, however, it is the duty of the appellate court to review the determination of the trial court and to cor- rect any error that may have occurred. For instance, if it should appear that the witness had never spoken to the testator nor seen any significant act, but had merely observed him driving from day to day through the streets, it would be a plain abuse of judicial discretion to admit iu evidence the opinion of such a witness as to the sanity of the testator. Again, if the witness for years had been in constant commimication with the testator, had frequently conversed with him and observed his con- duct from day to day, the exclusion of the opinion of 99 Turner v. American Security The opinion of the stepson of & Trust Cp., 213 U. S. 257, 53 the testatrix, -who had known her L. Ed. 788, 29 Sup. Ct. Rep. 420; intimately for years and visited Parrish v. State, 139 Ala. 16, 36 her on the date when the will was So. 1012; Estate of Carpenter, 94 made, was properly admitted in Cal. 406, 29 Pac. 1101; Huyck v. evidence. — Bamett v. Freeman, Rennie, 151 Cal. 411, 90 Pac. 929; (Ala.) 72 So. 395. In re Sudan's Estate, 156 Cal. 230, A trained nurse who attended 104 Pac. 443; Matter of Hull, 117 the testator for three days prior Iowa, 738, 89 N. W. 979; Durant to his death, and was in his room V. Whitcher, 97 Kan. 603, 156 Pac. every hour of the day during that 739; Clarke v. Irwin, 63 Neb. 539, period, may be held to be an inti- 88 N. W. 783; Nashville, etc., R. mate acquaintance within the Co. v. Brundige, 114 Tenn. 31, 4 meaning of the statute permitting Ann. Cas. 887, 84 S. "W. 805. intimate acquaintances to give 1 Huyck V. Rennie, 151 Cal. 411, their opinion as to soundness of 90 Pac. 929; In re Sudan's Estate, mind. — ^In re Sudan's Estate, 156 156 Cal. 230, 104 Pac. 443. Cal. 230, 104 Pac. 44a 526 COMMENTARIES ON THE LAW OF WILLS. sucli a witness would be erroneous and would be cor- rected on appeal.^ §390, Privileged Communications: Waived as to Subscribing Witnesses. At common law, communications to an attending phy- sician from a patient were not privileged;* but now, in most jurisdictions, statutes are in force which prevent a physician, against the will of his patient, from disclos- ing any information which he axjquired in his profes- sional capacity while the relation of physician and pa- tient existed.* The general rule is that the information which is thus privileged is that which it was necessary for the physician to acquire in order to properly treat the patient, and a wide range is given to the information which may be asked for and obtained by the physician.' All communications made by a client to his attorney for 2 Turner v. American Security 119 Cal. 442, 51 Pac. 688; Springer & Trust Co., 213 U. S. 257, 53 v. Byram, 137 Ind. 15, 45 Am. St. L. Ed. 788, 29 Sup. Ct. Rep. 420. Rep. 159, 23 L. R. A. 244, 36 N. B. 3 Rex V. Gibbons, 1 Car. & P. 97; 361; Bower v. Bower, 142 Ind. 194, Broad v. Pitt, 3 Car. & P. 518; 41 N. E. 523; Jones v. Preferred Wheeler v. Le Marchant, 17 Cb. Bankers' L. & Assur. Co., 120 Mich. Div. 675; Springer v. Byram, 137 211, 79 N. W. 204; Edington v. Ind. 15, 45 Am. St. Rep. 159, 23 Aetna Life Ins. Co., 77 N. Y. 564; L. R. A. 244, 36 N. E. 361; Winters Westover v. Aetna Life Ins. Co., V. Winters, 102 Iowa 53, 63 Am. 99 N. Y. 56, 52 Am. Rep. 1, 1 N. E. St. Rep. 428, 71N. W. 184; Campau 104. V. North, 39 Mich. 606, 33 Am. 5 Matter of RedHeld, 116 Cal. Rep. 433. C37, 48 Pac. 794; Pennsylvania Co. i Dreier v. Continental Ins. Co., v. Marion, 123 Ind. 415, 18 Am. St. 24 Fed. 670; Connecticut Mutual Rep. 330, 7 L. R. A, 687, 23 N. E. Life Ins. Co. v. Union Trust Co., 973 ; Feeney v. Long Island R. Co., 112 U. S. 250, 28 L. Ed. 708, 5 Sup. 116 N. Y. 375, 6 L. R. A. 544, 22 Ct. Rep. 119; Freel v. Market St. N. B. 402; In re Bruendl, 102 Wis. Gable R. Co., 97 Gal. 40, 31 Pac. 45, 78 N. W. 169. 730; Llssak v. Crocker Estate Co., EUIiES OF EVIDENCE. 527 the purpose of securing legal advice or aid are privi- leged. This was the rule of the common law and has been expressly enacted by statute in practically all jur- isdictions.* An exception to the rule, however, is when third persons are present. Thus, if a client communi- cates to his attorney in the presence and hearing of third persons, the privilege is waived,'' and the same rule ap- plies to a conversation between the client and others in the presence of the attorney.* When a will is executed and other persons are present, as witnesses or otherwise, and overhear all the conversation which takes place be- tween the testator and his legal or medical adviser, such fact constitutes a waiver as to privileged communica- tions and the physician or attorney may be called upon to relate what occurred at the execution of the will.® And where the testator calls upon his physician or his attor- eTurquand v. Knight, 2 M. & St. Rep. 215, 71 N. E. 1112; Denun- W. 98; Richards v. Jackson, 18 zlo v. Scholtz, 117 Ky. 182, 4 Ann. Ves. Jun. 472, 474; Montgomery v. Cas. 529, 77 S. W. 715; Elliott v. Perkins, 94 Fed. 23; Bldridge v. Elliott, 3 Neb. Unof. 832, 92 N. W. State, 126 Ala. 63, 28 So. 580; 1006; Matter of Smith, 61 Hud Sharon v. Sharon, 79 Cal. 633, 22 (N. Y.) 101, 15 N. Y. Supp. 425; Pac. 26, 131; Hollenback v. Todd, Hummel v. Kistner, 182 Pa. St. 119 111. 543, 8 N. E. 829; Dcherty 216, 37 Atl. 815. V. O'Callaghan, 157 Mass. 90, 34 8 Murphy v. Waterhouse, 113 Am. St. Rep. 258, 17 L. R. A. 188, Cal. 467, 54 Am. St. Rep. 365, 45 31 N. E. 726; Loder v. Whelpley, Pac. 866; Allen v. Morgan, 61 Ga. Ill N. Y. 239, 18 N. E. 874; Koeber 107; Scott v. Aultman Co., 211 111. V. Somers, 108 Wis. 497, 52 L. R. A. 612, 103 Am. St. Rep. 215, 71 N. E. 512, 84 N. W. 991. 1112; Brennan v. Hall, 131 N. Y. 7 Weeks v. Argent, 16 M. & W. 160, 29 N. E. 1009. 817; Ruiz v. Dow, 113 Cal. 490, 45 sin re Coleman, 111 N. Y. 220, Pac. 867; Stone v. Minter, 111 Ga. 19 N. E. 71; Loder v. Whelpley, 45, 50 L. R. A. 356. 36 S. B. 321; 111 N. Y. 239, 18 N. E. 874; Mc- Tyler v. Tyler, 126 111. 525, 9 Am. Master v. Scriven, 85 Wis. 162, 39 St. Rep. 642, 21 N. B. 616; Scott v. Am. St. Rep. 828, 55 N. W. 149. Aultman Co., 211 111. 612, 103 Am. 528 COMMENTABIES ON THE LAW OF WILLS. ney to be a subscribing witness to his will, that act is a waiver of the privilege and invites full and proper exami- nation of matters and facts regarding which their lips otherwise would have been sealed.^" §391. The Same Subject: Who May Claim or Waive the Privilege. It is the general rule that where there has been no waiver of the privilege by the testator during his life, his personal representatives may, in contests with third persons, claim the privilege;^* nor in such a case can the privilege be waived by third parties.^^ The decisions, however, are not harmonious in those cases where the testamentary capacity of the testator is involved in a will contest. The cases are principally in respect to the phy- sician who attended the deceased. Under those statutes which prohibit a physician from testifying as to privi- leged matters except with the consent of the patient, it is held that after such patient's death the lips of the physician are sealed and that the privilege can not be 10 In re Wax's Estate, 106 Cal. 162, 39 Am. St. Rep. 828, 55 N. W. 343, 39 Pac. 624; In re Mullin's Es- 149; In re Downing, 118 Wis. 581, tate, 110 Cal. 252, 42 Pac. 645; 95 N. W. 876. Denning v. Butcher, 91 Iowa 425, ii Emmons v. Barton, 109 Cal. 59 N. W. 69; Worthington v. 662, 670, 42 Pac. 303; Heuston v. Klemm, 144 Mass. 167. 10 N. B. Simpson, 115 Ind. 62, 7 Am. St. 522; Doherty v. O'Callaghan, 157 Rep. 409, 17 N. E. 261; Edington v. Mass. 90, 34 Am. St. Rep. 258, 17 Mutual Life Ins. Co., 67 N. Y. 185. L. R. A. 188, 31 N. E. 726; Elliott 12 Matter of Nelson, 132 Cal. V. Elliott, 3 Neb. Unof. 832, 92 N. 182, 64 Pac. 294; Gurley v. Park, W. 1006; Sheridan v. Houghton, 135 Ind. 440, 35 N. E. 279; Grbll v. 16 Hun (N. Y.) 628; Matter of Tower, 85 Mo. 249, 55 Am. Rep. Coleman, 111 N. Y. 220, 19 N. E. 358; Renlhan v. Dennin, 103 N. Y. 71; McMaster v. Scrlven, 85 Wis. 573, 57 Am. Rep. 770, 9 N. E. 320. EULES OP EVIDENCE. 529 waived eitlier by the heirs or personal representatives of the deceased.^* In many jurisdictions, however, and it may be stated as the general rule, the heirs at law or personal repre- sentatives of a decedent may waive the privilege in a con- test involving the validity of his will, and if the contest is between the heirs and personal representatives of the decedent there is no objection to a physician being called and allowed to testify for either side.^* The same rule 13 In re Flint's Estate, 100 Cal. 391, 34 Pac. 863; In re RedHeld's Estate, 116 Cal. 637, 48 Pac. 794; Harrison v. Sutter St. R. Co., 116 Cal. 156, 47 Pac. 1019; Estate of Black, 132 Cal. 392, 396, 64 Pac. 695. See, also, Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, 9 N. E. 320; Matter of Coleman, 111 N. y. 220, 19 N. E. 71, Loder v. Whelpley, 111 N. Y. 239, 18 N. E. 874; Hoyt v. Hoyt, 112 N. Y. 493, 20 N. E. 402; Auld v. Cathro, 20 N. D. 461, 128 N. W. 1025; In re Van Alstlne's Estate, 26 Utah 193, 72 Pac. 942; In re Hunt's Will, 122 Wis. 460, 100 N. W. 874. Where the statute prohibits a husband or wife from being exam- ined as to any communication made by one to the other while married, or after the marriage re- lation has ceased to reveal in tes- timony any such communication, held to absolutely close the mouth of a surviving husband or wife after the death of the other, such communications being privileged, which privilege The identi- fication of the paper,^" the protection of the testator from fraud and deception so that he may freely and volun- tarily express his testamentary intent,^^ and the ascer- 7 Swift V. Wiley, 1 B. Mon. (40 lo Canada's Appeal, 47 Conn. Ky.) 114. See, also, Tobin v. 450. Haack, 79 Minn. 101, 81N. W. 758; See, ante, §405, as to reasons In re Downie's Will, 42 Wis. 66, 76. for statutory formalities of execu- See, also, dissenting opinion of tion. Mansfield, C. J., in Wright v. iiLord v. Lord, 58 N. H. 7, 42 Wakeford, 4 Taunt. 213. Am. Rep. 565; Auburn Seminary sBrengle v. Tucker, 114 Md. Trustees v. Calhoun, 25 N. Y. 222; 597, 80 Atl. 224. In re Martin's Will, 82 Misc. Rep. 9 Grayson t. Atkinson, 2 Ves. 574, 144 N. Y. Supp. 174. Sen. 454, NUMBER AND CHARACTER OF WITNESSES. 599 tainment of the testamentary capacity of the testator.^'' Witnesses are required for the purpose of seeing, in the first instance, that the testator was in such a mental condition as would enable him to make his will, and that he executed it under free conditions and in conformity with the law regulating testamentary dispositions. If a witness doubt the testamentary capacity of a testator he should not attest or subscribe the will.^* § 446. Witnesses Identify the Will. Witnesses, by subscribing the instrument, can thus iden- tify it. One purpose for which witnesses are demanded is that of attesting and identifying the signature of the testator ; and, in order to do this, it is essential that they should see the testator sign his name, or that the sig- nature be shown to them and acknowledged to them by the testator to be his.^* Under modem practice in Eng- land and in a majority of the United States of America, the attestation of the witnesses is primarily to the sig- nature of the testator, to enable them to testify that the deceased subscribed his name to the identical piece of paper on which they wrote their own.^*" It is not neces- i2Heyward v. Hazard, 1 Bay 14 In re Keeffe's Will, 155 App. (S. C.) 335; Withinton v. Within- Div. 575, 141 N. Y. Supp. 5; Mat- ton, 7 Mo. 589. ter of Mackay, 110 N. Y. 611, 6 Am. isScribner v. Crane, 2 Paige St. Rep. 409, 1 L. R. A. 491, 18 (N. Y.) 147, 21 Am. Dec. 81; In re N. E. 433; Matter of Laudy's Will, Schmidt's Will, 139 N. Y. Supp. 148 N. Y. 403, 42 N. E. 1061. 464, 477; In re Martin's Will, 82 iBRoss v. Ewer, 3 Atk. 156; Misc. Rep. 574, 144 N. Y. Supp. Moodie v. Reid, 7 Taunt. 355, 361; 174; Mordecai v. Canty, 86 S. C. Doe ex dem. Spilsbury v. Burdett, 470, 68 S. E. 1049. 4 Ad. & E. 14; s. c, 6 Man. & G. See, ante, § 375, subscribing wit- 386; s. c, 10 Clark & F. 340; Kelg- nesses should satisfy themselves win v. Keigwin, 3 Curt. 607; s. c, that tne testator is of sound mind. 7 Jur. 840; Faulds v. Jackson, 6 600 COMMENTARIES ON THE LAW OP WILLS. sary that there should be a formal attestation clause.^* "Where one of the witnesses, being a clerk of court, at- tached his official certificate of acknowledgment of the testator's signature, it was held sufficient.^'' §447. Signing by Testator Should Precede Signing by Wit- nesses. Until a testamentary docunaent has been signed by the testator or by another for him at his direction or by his consent, as the statutes of the various jurisdictions may require, it is no will. Signing is necessary to com- plete the expression of the testamentary intent of the tes- tator. The general rule is that the signing by the maker must precede signing by the witnesses, since it is impos- sible to bear witness to a future event.^^ Even in those Notes of Cas. Supp. 1; Willis v. Lowe, 5 Notes of Cas. 432; Wynd- ham V. Clietwynd, 1 Burr. 414, 421; Bond V. Seawall, 3 Burr. 1775; White V. Trustees of British Mu- seum, 6 Birg. 310; s. c, 3 Moore & P. 689; Trimmer v. Jackson, 4 Bum's Ecc. Law (3 ed.) 102; Canada's Appeal, 47 Conn. 450; In re Hulse's Will, 52 Iowa 662, 3 N. W. 734; Flood v. Pragoff, 79 Ky. 607. 16 Burgoyne v. Showier, 1 Rob. Ecc. 5; Bryan v. White, 2 Rob. Ecc. 315; s. c, 14 Jur. 919; Moale V. Cutting, 59 Md. 510; Murray v. Murphy, 39 Miss. 214; Jackson v. Christman, 4 Wend. (N. Y.) 277; In re Phillips, 98 N. Y. 267. 17 Pranks v. Chapman, 64 Tex. 159. 18 Duffie V. Corridon, 40 Ga. 122; Brooks V. Woodson, 87 Ga. 379, 14 L. R. A. 160, 13 S. E. 712; Lane v. Lane, 125 Ga. 386, 114 Am. St. Rep. 207, 5 Ann. Cas. 462, 54 S. E. 90; Welty V. Welty, 8 Md. 15; Chase V. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687; Marshall v. Ma- son, 176 Mass. 216, 79 Am. St. Rep. 305, 57 N. E. 340; Barnes v. Chase, 208 Mass. 490, 94 N. E. 694; In re Kunkler's Will, 147 N. Y. Supp. 1094; Ragland v. Huntingdon, 23 N. C. 561, 563; In re Cox's Will, 46 N. C. 321; In re Pope's Will, 139 N. C. 484, 111 Am. St. Rep. 813, 4 Ann. Cas. 635, 7 L. R. A. (N. S.) 1193, 52 S. E. 235; Table- rock Lumber Co. v. Branch, 158 N. C. 251, 73 S. E. 164 ; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Rep. 875, 18 S. W. 280. NUMBER AND CHARACTER OF WITNESSES. 601 jurisdictions where the signature of the testator may be signed in any portion of the will, although a testator may have written his name in the exordium clause, if the evidence shows that he intended to sign the will at the end but did not do so imtil after it had been subscribed by the witnesses, a will so executed is invalid. No sig- nature can stand as a signing of a will unless it be so intended by the testator.^* See, post, §§ 496, 497. Witnesses should sign after testator. Where the testator before sign- ing his will had It signed by one witness, and thereafter had it signed by a second witness with- out the first one being present, then signed the will himself, but made no acknowledgment of his signature to the first witness, the will was held invalid. — Limbach v. Bolin, 169 Ky. 204, 183 S. W. 495. Where both witnesses testified that the testator did not sign in their presence, that they did not see his signature when they signed, and that neither he nor any one else for him intimated to the witnesses that he had as yet signed, the will was denied pro- bate. — ^Bioren v. Nesler, 77 N. J. Eq. 560, 78 Atl. 201. A will written by a person not the testator, and signed by him as a witness before its being left by him at the testator's residence, after which time such, person never again saw the testator, was denied probate. — In re Baldwin's Win, 146 N. C. 25, 125 Am. St. Rep. 466, 59 S. E. 163. 19 In Barnes v. Chase, 208 Mass. 490, 94 N. E. 694, the court says: "The difference between the case made out in this suit and that made out in Meads v. Earle, 205 Mass. 553, 29 L. R. A. (N. S.) 63, 91 N. E. 916, is to be found in the statement made by Elizabeth on her return to the Colony kitchen five minutes after the at- testing witnesses had subscribed their names to the Instrument now propounded as her last will, namely: 'I forgot to sign my name to my will.' That remark showed that she did not write her name in the exordium clause, intending it to stand as her signature to the will when complete. It is appar- ent that when the attesting wit- nesses subscribed their names, the instrument had not been signed, and that if it be assumed that in subsequently filling in her name in the testimonium clause Eliza- beth did sign the instrument, the attesting witnesses did not after- wards subscribe their names." See, also. Sears v. Sears, 77 Ohio St. 104, 11 Ann. Cas. 1008, 17 L. R. A. (N. S.) 353, 82 N. B. 1067. 602 COMMENTABIES ON THE LAW OF WILLS. § 448. The Same Subject: When All Part of One Transaction. It has been held, however, that where the signing by the witnesses and the testator is all part of the same transaction and all took place at the same time, a will is not invalidated by the fact that, in point of actual time, the attestation preceded the signing by the testator.^" As to what constitutes the same transaction and the same time is a matter for judicial determination, depending upon the facts in each particular case, and can not be governed by any general rule.^^ § 449. Witnesses iVTust Be Mentally Competent : As to Age. Witnesses to a will must be mentally competent. They must possess those qualifications which would render their testimony admissible if they were called upon to See, ante, §§ 423-426, as to effect of part of the will following the signatures of the testator or the witnesses. 20 In re Silva's Estate, 169 Cal. 116, 145 Pac. 1015; In re Shapter's Estate, 35 Colo. 578, 117 Am. St. Rep. 216, 6 L. R. A. (N. S.) 575, 85 Pac. 688; O'Brien v. Galagher, 25 Conn. 229; Gihson v. Nelson, 181 111. 122, 72 Am. St. Rep. 254, 54 N. E. 901. See, post, §§ 496, 497. 21 In re Baldwin's Will, 67 Misc. Rep. 329, 124 N. Y. Supp. 612, the court says: "Where the witnesses have signed in advance of the testator, their signatures may con- ceivably become an attestation of his subscription if it be thereafter supplied." The court then quotes Mr. Surrogate Bradford in Vaughan v. Burford, 3 Bradf. Sur. (N. Y.) 78: "The particular order of the several requisites to the valid execution of a testament is not at all material, provided they are done at the same time; that is, part of the same transaction. What is the same time and the same transaction is a subject of judicial determination in each par- ticular case, depending upon the facts, incapable of being governed by any general rule." But compare, Lane v. Lane, 125 Ga. 386, 114 Am. St. Rep. 207, 5 Ann. Cas. 462, 54 S. E. 90, and cases there cited, to the effect that "to witness a future event is equally Impossible, whether it oc- cur the next moment or the next week." NUMBER AND CHARACTER OF WITNESSES. 603 testify on ordinary occasions. As a general rule, tlie age of an attesting witness is considered only with refer- ence to intelligence. All witnesses must possess under- standing, and no arbitrary rule can be laid down. The statutes of the various states, with regard to witnesses generally, usually provide that children under a fixed age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of re- lating them truly, can not be witnesses. ^^ In some jur- isdictions the age limit of -witnesses to wills is fixed by statute;^* but in the absence of a statutory limitation the competency of the witness, irrespective of his age, is to be determined by the court. If competent when the will is offered for probate, a subscribing witness may be sworn; but whether or not such witness was competent when the will was executed is a separate question, and the court must determine whether or not the witness, when he attested the will, had sufficient mentality or under- standing to be a competent witness. The mere fact of age does not determine the question.^* 22 Cal. Civ. Code, § 1880. eixteen years complete, and per- The rule whicli formerly ob- sons insane, deaf, dumb, or blind, tained in England that as a child are among those who are specified could not be examined except as being absolutely incapable of under oath, its evidence was ex- being witnesses to testaments, eluded unless it understood the See, also, Oglesby v. Turner, 127 nature of an oath, is not the rule La. 1093, 54 So. 400. as to competency in California. — Texas, Vernon's Sayles' Civ. Estate of Johnson, 98 Cal. 531, 549, Stats., (1914) art. 7857. Witnesses 21 L. R. A. 380, 33 Pac. 460. must be "above the age of four- 23 Arizona Rev. Stats., § 1206. teen years." Witnesses must be "above the age 24 It will not be held that a will of fourteen years." was improperly executed simply Louisiana, Merrick's Rev. Civ. because one of the witnesses to Code, (1913) art. 1591. Children its execution was less than four- who have not obtained the age of teen years of age. If otherwise 604 COMMENTAEIES ON THE LAW OF WILLS. §450. Meaning of "Credible" or "Competent" as Applied to Witnesses. The Statute of Frauds required that wills should be at- tested and subscribed by ' * credible ' ' witnesses. Generally speaking, a "credible" witness is a "competent" wit- ness.^^ Both words are found in the various wills acts and competent, such witness may tes- tify concerning the execution of a will, the same as to any other fact. — Spier v. Spier (In re Spier's Estate), 99 Neb. 853, L. R. A. 1916E, 692, 157 N. W. 1014, Syl. A will is not invalidated by the fact that one of the witnesses is under fourteen years of age. — Spier V. Spier (In re Spier's Es- tate), 99 Neb. 853, L. R, A. 1916E, 692, 157 N. W. 1014. In Carlton v. Carlton, 40 N. H. 14, the court says: "The general rule, in common law trials. Is, that the competency of witnesses is to be decided by the court, and that the examination of a child, to as- certain his competency to be sworn as a witness, is made by the judge at his discretion. . . . If the attesting witnesses are com- petent at the time of probate, they may be sworn. Whether they were competent at the time of the at- testation is a question entirely distinct and separate from the question of their competency at the time of probate. There is no more reason to confine the judge of probate to the examination of a witness at the probate, to de- termine whether such witness were competent at the time of at- testation, than to limit the judge to the testimony of any witness upon any other question. Whether, at the probate, an attesting wit- ness is incompetent to be sworn, by reason of deficiency of under- standing arising from Immaturity of intellect, insanity, or intoxica- tion, is a question to be deter- mined by the judge on proper evi- dence." 25 Smith V. Crotty, 112 Ga. 905, 38 S. B. 110; Matter of Noble (Robinson v. Savage), 124 111. 266, 15 N. E. 850; Sloan v. Sloan, 184 111. 579, 56 N. E. 952; O'Brien v. Bonfield, 213 111. 428, 72 N. B. 1090; Jones v. Grieser, 238 111. 183, 15 Ann. Cas. 787, 87 N. B. 295; Feam v. Postlethwaite, 240 111. 626, 88 N. B. 1057; Smith v. Good- ell, 258 111. 145, 101 N. B. 255; Hiatt v. McColley, 171 Ind. 91, 85 IN. E. 772; Warren v. Baxter, 48 •.Me. 193; Appeal of Clark, 114 Me. 105, Ann. Cas. 1917A, 837, 95 Atl. 1517; Sullivan v. Sullivan, 106 Mass. 474, 8 Am. Rep. 356; Swanzy v. Kolb, 94 Miss. 10, 136 Am. St. Rep. 568, 18 Ann. Cas. 1089, 46 So. 549; Lord V. Lord, 68 N. H. 7, 42 Am. Rep. 565; In re Carson's Estate, NUMBEat AND CHARACTER OF WITNESSES. 605 have been construed to have the same meaning, A credi- ble or competent witness is one who is not disqualified be- cause of mental deficiency or interest or because of legal disability imposed, such as conviction for certain crimes.^* 244 Pa. St. 401, 90 Atl. 719; His- torical Society v. Kelker, 226 Pa. St. 16, 134 Am. St. Rep. 1010, 74 Atl. 619; In re Potter's Will, 89 Vt. 361, 95 Atl. 646. 26Fearn v. Postlethwaite, 240 111. 626, 88 N. E. 1057; Swanzy v. Kolb, 94 Miss. 10, 136 Am. St. Rep. 568, 18 Ann. Cas. 1089, 46 So. 549; Historical Society v. Kelker, 226 Pa. St. 16, 134 Am. St. Rep. 1010, 74 Atl. 619. A credible witness to the execu- tion of a will, within the meaning of a statute requiring the witnesses to be "credible," is one legally competent to testify in a court of justice to the facts which he at- tests by subscribing his name to the will.— O'Brien v. Bonfield, 213 III. 428, 72 N. E. 1090; Jones v. Grieser, 238 111. 183, 15 Ann. Cas. 787, 87 N. E. 295. The Registrar of Wills in Dela- ware is held to be competent to act as an attesting witness. — In ra Lecarpentler's Wi}l (Del. Orph.), 91 Atl. 204. Devisees and legatees under a will are interested witnesses. — Wiley V. Gordon, 181 Ind. 252, 104 N. E. 500; In re Leech's Estate, 236 Pa. St. 57, 84 Atl. 594. A witness who for any legal rea- son is disqualified from giving tes- timony generally, or by reason of interest or other disqualifying cause is incompetent to testify in respect to the particular subject under investigation, is not a credi- ble witness under the statute of wills. — ^Boyd v. McGonnell, 209 111. 396, 70 N. E. 649; Jones v. Grieser, 238 111. 183, 15 Ann. Cas. 787, 87 N. E. 295. Whether a witness has such legal interest as will disqualify him, depends on whether he will gain or lose financially as the di- rect results of the suit. — Smith v. Goodell, 258 111. 145, 101 N. E. 255. A competent witness is one com- petent to testify generally in courts of justice, and laboring under no legal disqualification. — Hiatt V. MoColley, 171 Ind. 91, 85 N. E. 772. A competent witness is one who, at the time of his subscribing the will in attestation, can legally tes- tify as to the matters upon which his attestation bears. — ^Wiley v. Gordon, 181 Ind. 252, 104 N. B. 500; In re Wiese's Estate, 98 Neb. 463, L. R. A. 1915E, 832, 153 N. W. 556. A person does not, by signing the will for the testator by his ex- press request, disqualify himself as an attesting witness to the will. —Steele v. Marble, 221 Mass. 485, 109 N. E. 357. Nebraska. — Under the Nebraska law, a devisee may act as a wit- 606 COMMENTAEIES ON THE LAW OF WILLS. It was at first an tmsettled question whether a witness who lacked credibility at the time of attestation could thereafter become credible, as, for instance, where such witness was disqualified at the time the will was made because of his interest, but thereafter released the same prior to the time the instrument was offered for pro- bate.^^ But now the generally accepted rule is that witnesses to a will must be competent at the time of attes- tation,^^ and it is equally the accepted rule that incom- ness. — ^In re Wiese's Estate, 98 Neb. 463, L. R. A. 1915E, 832, 153 N. W. 556. A "disinterested witness" is one to whom the will gives no legal in- terest, and a "credible witness" one who is not discredited from testifying. — ^In re Carson's Estate, 244 Pa. St. 401, 90 Atl. 719. Tennessee. — X legatee under a will of personal property is not rendered incompetent by his in- terest to testify as a witness to prove the factum or execution of the will. His Interest only goes to the credibility of his evidence, and not to his competency as a witness. — State v. Goodman, 133 Tenn. 375, 181 S. W. 312, 318. See, also. Beadles v. Alexander, 68 Tenn. (9 Baxt.) 604; Franklin v. Franklin, 90 Tenn. 44, 16 S. W. 557; Orgain v. Irvine, 100 Tenn. 193, 194, 43 S. W. 768. 27 Doe d. Hindson v. Kersey, 4 Bum's Ecc. Law 27; Wyndham v. Chetwynd, 1 Burr. 414; Deaklns v. I-Iollis, 7 Gill & J. (Md.) 311; Weems v. Weems, 19 Md. 334; Korns v. Soxman, 16 Serg. & R. (Pa.) 315; Nixon v. Armstrong, 38 Tex. 296. Where a witness Is disqualified by reason of Interest to act as at- testing witness to a will, he can not be subsequently rendered com- petent by releasing or relinquish- ing any interest under the will. — Smith V. Goodell, 258 111. 145, 101 N. E. 255. Contra: A witness who is In- competent by reason of interest under the will, may by renounc- ing such Interest render himself competent. — Murphy v. Clancy, 177 Mo. App. 429, 163 S. W. 915. 28 Holdfast V. Dowsing, 2 Stra. 1254; Hatneld v. Thorp, 5 B. & Aid. 589; Gillls v. GIUls, 96 Ga. 1, 51 Am. St. Rep. 121, 30 L. R. A. 143, 23 S. E. 107; Johnson v. John- son, 187 111. 86, 58 N. E. 237; O'Brien v. Bonfield, 213 111. 428, 72 N. E. 1090; Fearn v. Postlethwaite, 240 111. 626, 88 N. B. 1057; Rowlett V. Moore, 252 111. 436, Ann. Gas. 1912D, 346, 96 N. E. 835; In re Delavergne's Will, 259 111. 589, 102 N. E. 1081; WIsehart v. Applegate, 172 Ind. 313, 88 N. E. 501; Pat- NUMBER AND CHARACTER OF WITNESSES. 607 petency subsequently arising will not affect the validity of the attestation.^* ten V. Tallman, 27 Me. 17; In re Trinitarian Cong. Church, etc., of Castine, 91 Me. 416, 422, 40 Atl. 325; Appeal of Clark, 114 Me. 105, Ann. Cas. 1917A, 837, 95 Atl. 517; Sullivan v. Sullivan, 106 Mass. 474, 8 Am. Rep. 356; In re Holt's Will, 56 Minn. 33, 45 Am. St. Rep. 434, 22 L. R. A. 481, 57 N. W. -219; Geraghty v. Kilroy (Tierney's Es- tate), 103 Minn. 286, 114 N. W. 838; In re Wiese's Estate, 98 Neb. 463, L. R. A. 1915B, 832, 153 N. W. 556; Carlton v. Carlton, 40 N. H. 14, 18; Cochran v. Brown, 76 N. H. 9, 78 Atl. 1072, 1078; Historical Society v. Kelker, 226 Pa. St. 16, 134 Am. St. Rep. 1010, 74 Atl. 619; Smith V. Jones, 68 Vt. 132, 34 Atl. 424; In re Potter's Will, 89 Vt. 361, 95 Atl. 646; Bruce v. Shuler, 108 Va. 670, 15 Ann. Cas. 887, 35 L. R. A. (N. S.) 686, 62 S. B. 973. Where at the time of the exe- cution of the will the witness Is disqualified, the subsequent amend- ment of the statute so as to re- move the disqualification of wit- nesses of the class in question, can not affect the invalidity of the will.— Rowlett V. Moore, 252 111. 436, Ann. Cas. 1912D, 346, 96 N. B. 835. "If the will provides a pecuniary benefit to the attesting witness, though dependent upon the hap- pening of an event which may hap- pen, he has a beneficial interest under it, in contemplation of law; and if the subsequent event upon which the interest depends does not happen, that fact does not relate back and restore competency. It is important that the safeguards which the law has thrown around the execution of wills should not be withdrawn or weakened; and to that end a will which provides a pecuniary benefit, absolute or contingent, to a legatee, should not be witnessed by such legatee. He is interested, and therefore not credible or competent." — In re Klein's Estate, 35 Mont. 185, 88 Pac. 798, 805. 29 Brograve v. Winder, 2 Ves. Jun. 634, 636; In re Delavergne's Will, 259 111. 589, 102 N. E. 1081; Davenport v. Davenport, 116 La. 1009, 114 Am. St. Rep. 575, 41 So. 240; Sears v. Dillingham, 12 Mass. 358, 359; Holmes v. HoUoman, 12 Mo. 535; In re Holt's Will, 56 Minn. 33, 45 Am. St. Rep. 434, 22 L. R. A. 481, 57 N. W. 219; Ger- aghty V. Kilroy (Tierney's Estate) , 103 Minn. 286, 114 N. W. 838; Smith V. Goodell, 258 111. 145, 101 N. B. 255. The competency of an attesting witness is to be determined from the facts as they exist at the time he attests the will, and not as they exist at the time the will is offered for probate. — Fisher v. Spence, 150 111. 253, 41 Am. St. Rep. 360, 37 N. B. 314; Jones v. Grieser, 238 608 COMMENTARIES ON THE LAW OP WILLS. § 451. Persons Interested Under the Will Are Disqualified as Witnesses : Statute of 25 George II, Oh. 6. It has always been a general policy of the law that wills ought not to be established upon the testimony of those having a direct interest therein. Under the Stat- ute of Frauds, however, considerable doubt arose as to the interest which would disqualify a person from being an attesting witness. Under that statute, if a witness was disqualified and there were not a sufficient number of credible witnesses without him, the entire will was in- validated, although it was argued that such a witness might prove the wiU except as to the devise in his favor.^" It was deemed better that a subscribing witness should forfeit his interest under the will rather than destroy all the testamentary dispositions made by a testator, and further, to remove all doubts as to who might be credible witnesses Parliament enacted the statute of 25 George II, ch. 6. This act provided that if any person should attest the execution of any will or codicil made after June 24, 1752, to whom shall be given or made any beneficial de- vise, legacy, estate, interest, gift, or appointment of or aifecting any real or personal estate, other than charges on lands for the payment of any debts, such devise, leg- 111. 183, 15 Ann. Cas. 787, 87 N. E. that statute enacted "that if any 295. person who shall attest the execu- If the witness has no interest at tion of a will shall at the time of the time the will is executed, it the execution thereof or at any will not be invalidated by his ac- time afterwards be incompetent quiring an interest through a sub- to be admitted a witness to prove sequent codicil. — Historical So- the execution thereof, such will ciety V. Kelker, 226 Pa. St. 16, 134 shall not on that account be in- Am. St. Rep. 1010, 74 Atl. 619. valid." The statute of 1 Victoria, ch. 30 Bacon's Abr., Tit. Wills, D., 26, '"'d down fixed rules as to sub- III. scribing witnesses. Section 14 of NUMBER AND CHARACTER OF WITNESSES. 609 acy, appointment or the like, should be utterly null and void so far only as concerned such persons attesting the execution of such will or codicil, or any person claiming under him: and such person was admitted as a witness to the execution of such wdll or codicil within the intent of the act of 29 Charles II, ch. 3, notwithstanding any devise, legacy, appointment, or the like in his favor. §452. The Same Subject: Beneficiary May Be a Witness Against the Will. The statute of 25 George II, ch. 6, as we Have seen, affected the credibility of witnesses who took an interest directly under the will. At that date wiUs of real prop- erty only were affected by the Statute of Frauds. The statute first mentioned established the competency of devisees and legatees under a will by destroying their interests. Legatees, however, could always be witnesses against a will. The reason for denying them competency is that such a witness is presumed to be affected by self- interest ; whereas, on the other hand, if a legatee testified against a will he would be swearing against his interest and the evidence would therefore be accepted.*^ And it has been said that if not affected by the outcome, their interests being the same whether the will is sustained or not, such witnesses although legatees are credible.^^ 31 Oxenden Bar v. Penerice, 2 483, 15 Am. Dec. 395; Jackson v. Salk. 691, 695; Smalley v. Smalley, Betts, 6 Cow. (N. Y.) 377; Jack- 70 Me. 545, 35 Am. Rep. 353; In re son v. Vickory, 1 Wend. (N. Y.) Hoppe's Will, 102 Wis. 54, 78 N. W. 406, 19 Am. Dec 522; Jackson v. 183; Sparhawk v. Sparhawk, 10 Le Grange, 19 Johns. (N. Y.) 386, Allen (Mass.) 155. 10 Am. Dec. 237. 32 Dan V. Brown, 4 Cow. (N. Y.) I Com. on Wills— 39 610 COMMENTABIES ON THE LAW OF WILLS. § 453. Heir at Law as an Attesting Witness. An heir has been distingnislied from an attesting wit- ness who has no claim upon the testator's bounty. Being entitled under the laws of inheritance to receive the estate of the decedent or some definite portion of it, many of the states have enacted statutes reserving to him his interests should he attest and subscribe the will of one from whom he will inherit. It has been extended to all those who would succeed, in any proportion, to the prop- erty of a decedent, the statutes generally providing that should such a one be a subscribing witness, neither the will nor inheritance is invalidated, but the heir or suc- cessor is accepted as a competent witness and is entitled to receive such share of the estate as he would have re- ceived had the decedent died intestate, generally re- stricted, however, so that such share can not exceed the amount given him by the will.^* If against his interest, an heir is accepted as a competent witness; as, for in- stance, he may testify in favor of a will in which he was disinherited, either wholly or partially.^* § 454. Interest, to Disqualify a Witness, Must Be a Direct and Beneficial Interest. The interest of a subscribing VTitness, referred to in the statute of 25 George II, ch. 6, was a direct, bene- ficial interest under the will, and the act was held not to include those witnesses who took property by devise or bequest only in trust for the benefit of others.^^ This 33 See synopsis of statutes, Ap- la re Hoppe's Will, 102 Wis. 54, pendlx, this volume. 78 N. W. 183. 34 Smalley v. Smalley, 70 Me. 35 Doe d. Hlndson v. Kersey, 4 545, 35 Am. Rep. 353; Sparhawk v. Bum's Ecc. Law 88; Clarke v. Eparhawk, 10 Allen (Mass.) 155; Gannon, 1 Ry. & Moo. Ca. 31; NUMBER AND CHARACTER OP WITNESSES. 611 rule still obtains, and a person is not excluded from sub- scribing a will as an attesting witness because of inter- est if such interest as be has under the will is uncertain, remote or contingent.*® One is not incompetent as a witness to a will merely because the instrument contains some devise or legacy which is of material benefit to the city or toAvn in which the witness resides and pays taxes. The interest in a will which renders a witness incom- petent must be a fixed, certain, and vested pecuniary in- terest.*'^ A member of a church or religious organiza- tion has not such an interest in its meeting house as to disqualify him as a witness to a will under which his church or organization is a beneficiary. The privilege of attending public worship, although most important, does not constitute such an interest as will disqualify a wit- ness.*^ This rule applies generally to the officers or trus- tees of religious, educational, or charitable organizations which may be legatees under the will, where a subscribing Liowe V. JollifEe, 1 W. Bl. 365; Bet- Hawes v. Humphrey, 9 Pick, tison V. Bromley, 12 East 250; Wy- (Mass.) 350, 361, 20 Am. Dec. 481. man v. Symmes, 10 Allen (Mass.) "Where the testatrix left a por- 153. tion of her estate to a church of 36 Weston V. Elliott,- 72 N. H. which she was a member, another 433, 440, 57 Atl. 336; Pruyn v. member of the church is not dis- Brinkerhoff, 57 Barb. (N. Y.) 176. qualified by interest from becom- 37 Cornwell v. Isham, 1 Day ing a witness. — Conrades v. Hel- (Conn.) 35, 2 Am. Dec. 50; Good- ler, 119 Md. 448, 87 Atl. 28. rich's Appeal, 57 Conn. 275, 18 Atl. One who has no interest as 49; Piper v. Moulton, 72 Me. 155; legatee or devisee under a will, In re Marston, 79 Me. 25, 8 Atl. and does not derive any pecuniary 87; Hawes v. Humphrey, 9 Pick, benefit or advantage under its pro- (Mass.) 350, 20 Am. Dec. 481; visions, and is not at the time of Haven v. Hilliard, 23 Pick. (Mass.) attestation in any religious or 10; Hitchcock v. Shaw, 160 Mass. charitable institution made the ob- 140, 35 N. E. 671; In re Potter's ject of the testator's bounty, is Will, 89 Vt. 361, 95 Atl. 646. not disqualified as an attesting 38 Warren v. Baxter, 48 Me. 193; witness, merely because he is ap- 612 COMMENTARIES ON THE LAW OF WILLS. witness, although an officer or trustee of the beneficiarj' organization, has merely a fiduciary and not a personal and pecuniary interest in the benefits to be derived f^ but pointed by the will a member of an advisory board to administer a certain charity under the will.^In re Johnson's Estate, 249 Fa. St. 339, 94 Atl. 1082. 39 In Jeanes' Estate, 228 Pa. St. 537, 77 Atl. 824, the court, regard- ing an attesting witness who was also a stockholder and vice presi- dent of the company referred to, says: "Interest which, under the act of 1855, disqualifies a witness, from attesting a will containing re- ligious or charitable bequests, must be a present, certain and vested one. . . . The direction of the testatrix upon which the appellant relies, in asking that Balz be declared an interested wit- ness, is merely that his company pay the dividends on the 148 shares of stock under her control at the time she executed her will, to the Women's Hospital, provided It would accept her conditional be- quest." Where a will provided for lega- cies to four religious, educational, and charitable Institutions, and' two of the subscribing witnesses were members and trustees of one of the legatees, and the third wit- ness was a trustee of one organi- zation and a director in two of the others, they were nevertheless held to be "credible witnesses." — PetterhofPs Estate, 228 Pa. St. 535, 77 Atl. 826. See, also, KeSs- ler's Estate, 221 Pa. St. 314, 128 Am. St. Rep. 741, 15 Ann. Cas. 791, 70 Atl. 770. "A nominated executor attest- ing the execution of a will Is com- petent to make the necessary proof to entitle it to be probated. If an executor, as such, is ever disqualified from testifying it is only when ex-oflicio he Is made a party to a proceeding to contest a will." The court then continues and holds that such an executor Is not disqualified even then (under the Indiana law) because his rela- tion to the subject matter of the suit Is fiduciary and not personal. — HIatt V. MoColley, 171 Ind. 91, 85 N. E. 772. A shareholder In a corporation which Is appointed as executor, Is competent to act as attesting wit- ness under the Delaware law. — In re Lecarpentler's Will (Del; Orph.), 91 Atl. 204. One who Is president of, and a stockholder In, a trust company, which the will appoints trustee to hold property and divide the In- come between the widow and the daughter of the testator. Is com- petent as an attesting witness to the will. — In re Wiese's Estate, 98 Neb. 463, L. R. A. 1915B, 832, 153 N. W. 556. Salaried employees of a corpora- tion which is made a trustee under the will, may act as attesting wit- NUMBER AND CHABACTEK OF WITNESSES. 613 if he has any direct or personal interest in the benefits, he can not be said to be disinterested.*** §455. Executor as an Attesting Witness: Conflicting Deci- sions. The credibility or competency of one named in a will as an executor to be an attesting witness thereto was specially recognized by the statute of 1 Victoria, ch. 26.** In the United States the decisions are conflicting. In some cases a person named in a will as executor has been held incompetent as an attesting witness,*^ and this even nesses. — ^In re Carson's Estate; 244 Pa. St. 401, 90 Atl. 719. 40 One who is designated in the ■will as a member of an executive committee of a charity created by the will, is not a disinterested wit- ness. — ^In re Stinson's Estate, 228 Pa. St. 475, 139 Am. St. Rep. 1014, 30 L. R. A. (N. S.) 1173, 77 AU. 807. Where one of the provisions of a will bequeathed a sum of money to a church, to be applied to the reducing of a mortgage, the guar- antor on the mortgage note has such a direct pecuniary interest as to disqualify him as an attesting witness.— Crowell v. Tuttle, 218 Mass. 445, 105 N. E. 980. A stockholder in a corporation, which is a legatee under the will, is disqualified from acting as a witness to the will. — In re Pale- thorp's Estate, 249 Pa. St. 389, 94 Atl. 1060. A trustee to whom certain lega- cies are given in trust for friends of the testatrix, for the education of his children and for designated charities and others which the trustee might choose, is not a dis- interested witness and can not act as a subscribing witness. — In re Arnold's Estate, 249 Pa. St. 348, 94 Atl. 1076. 41 Section 17 of Statute of 1 Vic- toria, ch. 26, is as follows: "That no person shall, on account of his being an executor of a will, be in- competent to be admitted a wit- ness to prove the execution of such will, or a witness to prove the validity or invalidity thereof." 42 Gilbert v. Gilbert, 22 Ala. 529, 58 Am. Dec. 268; Davis v. Rogers, 1 Houst. (Del.) 44; Geraghty v. Kilroy (Tierney's Estate), 103 Minn. 286, 114 N. W. 838. A man nominated as executor by the will, being also a trustee and officer of a church which is a bene- ficiary of the will, and who has an option on shares of stock which are part of a charitable trust made 614 COMMENTAEIES ON THE LAW OF WILLS. though he renounced his executorship.** The rule, hov/- ever, has not generally been extended so as to render incompetent as an attesting witness to a will the wife of one who is named therein as executor.** On the other hand, it has been held that although an executor is not a competent witness to the execution of a will in which he is nominated as such, yet the will may be established by his testimony, in which case he forfeits his executor- by the will, and is one of the trus- tees, under a voting trust, for vot- ing the stock of a corporation that the testator's business has de- veloped into, and who is entitled to commissions not only as ex- ecutor but as trustee, is disquali- fied to subscribe the will as an attesting witness. — In re Kessler's Estate, 221 Pa. St. 314, 128 Am. St. Rep. 741, 15 Ann, Cas. 791, 70 Atl. 770. Under the statute of Illinois an executor has such a direct finan- cial Interest in the probate of the will that he is disqualified by rea- son of such interest, as a witness to the execution of the will. He clearly has an interest in the pro- bate of the will to the extent of his commissions as executor. — Ferguson v. Hunter, 7 111. (2 Gil- man) 657; Bardell v. Brady, 172 111. 420, 50 N. E. 124; Sloan v. Sloan, 184 111. 579, 56 N. E. 952; In re Tobin, 196 111. 484, 63 N. E. 1021; Godfrey v. Phillips, 209 111. 584, 71 N. B. 19; Jones v. Abbott, 235 111. 220, 85 N. E. 279; Jones v. Grieser, 238 111. 183, 15 Ann. Cas. 787, 87 N. B. 295; Smith v. Goodell, 258 111. 145, 101 N. E. 255. 43 Gilbert v. Gilbert, 22 Ala. 529, 58 Am. Dec. 268. Contra: Jones v. Larrabee, 47 Me. 474. 44 Hawley v. Brown, 1 Root (Conn.) 494; Piper v. Moulton, 72 Me. 155; Stewart v. Harriman, 56 N. H. 25, 22 Am. Rep. 408; Hodg- man v. Kittredge, 67 N. H. 254, 68 Am. St. Rep. 661, 32 Atl. 158; In re jLyon's Will, 96 Wis. 339, 65 Am. St. Rep. 52, 71 N. W. 362. But see contra, Fearn v. Postle- thwaite, 240 111. 626, 88 N. E. 1057. But see Rowlett v. Moore, 252 111. 436, Ann. Cas. 1912D, 346, 96 N. B. 835, under a later statute. Under the law of Illinois as it formerly stood, the wife of an ex- ecutor was not a competent sub- ecribing witness, but this disquali- fication has now been taken away by an amendment of the statute. — See Rowlett v. Moore, 252 111. 436, Ann. Cas. 1912D, 346, 96 N. E. 835. NUMBER AND CHABACTEB OF WITNESSES. 615 ship and can take no part in the administration of the estate.*^ § 456. The Same Subject : Prevailing Rule. The prevailing rule is that an executor, although he has a right to commissions for administering the estate, has not such an interest, for such reason, as will dis- qualify him from being an attesting witness.*^ This rule 4B Jones V. Grieser, 238 111. 183, 15 Ann. Cas. 787, 87 N. E. 295. 46 Comstock V. Hadlyme etc. Soc, 8 Conn. 254, 20 Am. Dec. 100; Meyer v. Fogg, 7 Fla- 292, 68 Am. Dec. 441; Baker v. Bancroft, 79 Ga. 672, 5 S. E. 46; Davenport v. Davenport, 116 La. 1009, 114 Am. St. Rep. 575, 41 So. 240; Sears v. Dillingliam, 12 Mass. 358; Geraghty V. Kilroy (Tierney's Estate), 103 Minn. 286, 114 N. W. 838; Murphy V. Murphy, 24 Mo. 526; Llppincott V. WikofC, 54 N. J. Eq. 107, 33 Atl. 305; Children's Aid Soc. v. Love- ridge, 70 N. Y. 387; Jordan's Es- tate, 161 Pa. St. 393, 29 Atl. 3; Noble v. Burnett, 10 Rich. L. (S. C.) 505; Richardson V. Richard- son, 35 Vt. 238. "A nominated executor attesting the execution of a will is compe- tent to make the necessary proof to entitle it to be probated. If an executor, as such, is ever disquali- fied from testifying it is only when ex-oflBcio he is made a party to a proceeding to contest a will." The court goes on to say he is not disqualified even then (under Ind. law), because his relation to the subject matter of the suit is fidu- ciary and not personal. — Hiatt v. McColley, 171 Ind. 91, 85 N. E. 772. An executor is not an incom- petent attesting witness and does not become so by reason of a suit attacking the probate of the will, in which suit he is a necessary party. — Wisehart v. Applegate, 172 Ind. 313, 88 N. E. 501. "The mere fact that a party is named by a testator in his will as executor clearly does not affect his competency as an attesting wit- ness to the will; for such a witness is competent, if he be one who would at the time be competent to testify in court to the facts which he attests. Tested by this rule, the witness who was named as executor in this case was com- petent when he attested the will, and, being then competent, no sub- sequent incompetency, from what- ever cause, would prevent the pro- bate of the will." — Geraghty v. Kil- roy (Tierney's Estate), 103 Minn. 286, 114 N. W. 838. Since it is the law in New Hamp- shire "that the expectation of pay- ment for a service to be performed 616 COMMENTAEIES ON THE LAW OF WILLS. has been extended so that a person named as executor is not disqualified as an attesting witness merely because the testator provides in his will that "the rest and re- mainder of my property" be given to such executor "for his expenses in administering this estate."*^ And a gift by a will to an executor of a certain amount over and above his commissions, as compensation for services to be rendered in administering the estate, has been held to be the same as commissions, it not being an absolute gift or such a legacy as was intended by the statute to be forfeited if given to a subscribing witness.** A per- son appointed in a will as attorney of an executor is held to be a competent subscribing witness, since the appoint- ment has no force or effect without the subsequent con- sent and employment by the executor.** But in Illinois, where the rule prevails that one named as executor is disqualified as a subscribing witness, it was held that a member of a firm of lawyers who had an interest in the fees earned by any member of the firm in any trust relation was disqualified to act as a witness to a will which made the other members of the firm executors and trustees.^** § 457. Creditors as Attesting Witnesses. Creditors of a testator may be attesting witnesses to the latter 's will. The statute of 25 George II, ch. 6, en- acted that in case, by will or codicil, any lands, tenements does not render a witness inoom- 48 Pruyn v. Brinkerlioff, 57 Barb, petent, tte amount of compensa- (N. Y.) 176. tion can not exclude the witness, 49 In re Retard's Estate, 163 whatever hearing it may have on Iowa 310, 143 N. W. 1106; In re his testimony." — Cochran v. Brown, Pickett's Will, 49 Ore. 127, 89 Pac. 76 N. H. 9, 78 Atl. 1072. 377. 47 Cochran v. Brown, 76 N. H. so Smith v. Goodell, 258 111. 145, 9, 78 Atl. 1072. 101 N. E. 255. NUMBER AND CHABACTER OF WITNESSES. 617 or hereditaments were or should be charged with debt, and any creditor, whose debt should be so charged, had attested or should attest the execution of such will or codicil, such creditor should be admitted as a witness to the execution of the will or codicil, within the intent of the Statute of Frauds.^^ These provisions were sub- stantially in section 16 of the statute of 1 Victoria, ch. 26. Similar acts have been passed in most jurisdictions in the "United States.^^ §458. Gifts to Attesting Witnesses Void: Modifications of the Rule. The modern rule, generally accepted and established by statute in England^^ and in practically all the states of the Union, is that gifts to subscribing witnesses are void. The interest of such a witness is forfeited by statute ; he is therefore no longer interested and is a competent wit- ness.®* The statutes generally provide two modifications 51 Referring to the efCect of a 68 S. E. 1023; In re Delavergne's previous decision where the court Will, 259 111. 589, 102 N. E. 1081; would not allow any legatee, nor Wiley v. Gordon, 181 Ind. 252, 104 by consequence a creditor, the N. E. 500; Kaufman v. Murray, 182 legacies and debts being charged Ind. 372, Ann. Cas. 1917A, 832, 105 on the real estate, to stand as a N. E. 466; Swanzy v. Kqlb, 94 Miss, competent attesting witness, Mr. 10, 136 Am. St. Rep. 568, 18 Ann. Justice Blackstone says: "This de- Cas. 1089, 46 So. 549. termination, however, alarmed As to the Maryland rule, if a many purchasers and creditors, witness to a will is also a devisee and threatened to shake most of under it, the fact does not invali- the titles in the kingdom, that de- date either the attestation or the pended on devises by will." — 2 Bl. devise. This is one effect of the Com. *377. Maryland act of 1798, ch. 100, sys- 52 See synopsis of statutes, Ap- tematizing the laws as to wills, pendix, this volume.' executors, administrators, etc. See, 53 Statute of 1 Victoria, ch. 26, also, Act of 1864, ch. 109.— Leitch § 15. V. Leitch, 114 Md. 336, 79 Atl. 600. 54 Williams v. Way, 135 Ga. 103, "A legatee unijer a will of per- 618 COMMENTAEIES ON THE LAW OF WILLS. of the rule, first, if there are a sufficient number of com- petent witnesses to the will without including the benefi- ciary, the will is sufficiently witnessed and the devise or bequest stands ;^' and second, where one of the subscrib- sonal property Is not rendered In- competent by his Interest to tes- tify as a witness to prove the factum, or execution, of the will. His interest only goes to the credi- bility of his evidence — and not to his competence as a witness." — ■ State V. Goodman, 133 Tenn. 375, 181 S. W. 312. A will must be attested by twoi witnesses competent at the time to be such, and if a witness has ai beneficial interest in the will he can only be considered an attest- ing witness by virtue of the statute that renders void the devise or be- quest made to him by the will. — Bruce v. Shuler, 108 Va. 670, 15 Ann. Gas. 887, 35 L. R. A. (N. S.) 686, 62 S. E. 973. See synopsis of statutes. Appen- dix, this volume. B5 "We held in Belledln v. Goo- ley, 157 Ind. 49, that when the wife of one of the two attesting wit- nesses to a will is the sole bene- ficiary under said will, the will is void because the husband of such beneficiary Is not a competent wit- ness. In this case the wife of the attesting witness JefEers is not the only beneficiary under said will, but there are nine other bene- ficiaries." The court declined to pass upon the competency of Jef- fers, he being a supernumerary. since the law requires only two witnesses and JefEers was a third. — ^Wisehart v. Applegate, 172 Ind. 313, 88 N. E. 501. The statute, whereby a bequest to a witness is made void it the will can not be proved without his co-operation, refers to wit- nesses who sign in attestation, and not to outside witnesses who may be called upon to testify in the probate proceedings. — Sellards v. Kirby, 82 Kan. 291, 136 Am. St. Rep. 110, 20 Ann. Gas. 214, 28 L. R. A. (N. S.) 270, 108 Pac. 73. Massachusetts Rev. Laws, ch. 135, § 5, provides for avoidance of a beneficial devise or bequest to one attesting the will as a sub- scribing witness, unless there are such witnesses other than he suffi- cient In number for a valid at- testation; in effect this avoids a bequest by codicil to a witness subscribing the latter, of what may remain of money bequeathed by the will after the death of the legatee, unless it be a mere super- numerary witness that is the bene- ficiary under such codicil. — Lougee V. Wilkle, 209 Mass. 184, 95 N. E. 221. A bequest to a subscribing wit- ness is void unless the will can be proved without resort to such wit- ness. — Swanzy v. Kolb, 94 Miss. 10, NUMBER AND CHAEACTEE OP WITNESSES. 619 ing witnesses is an heir or successor to the estate of a decedent testator, the will is not invalidated for such rea- son, any devise or bequest to the heir being void, but such heir takes from the estate the inheritance he otherwise would have received, not exceeding, however, the amount given by the will.^® § 459. Husband or Wife of a Beneficiary as an Attesting Wit- ness : Early Rule. The rule of the common law was that neither a hus- band nor a wife could be a witness in any case either for or against the other. This rale was not dependent upon interest; it arose from the legal contemplation of the unity of the couple. A husband or wife, therefore, was not a competent attesting witness to the will of the other." The statute of 25 George II, ch. 6, was held to apply only to those cases where the witness received a direct benefit under the terms of the will, and not to one where a witness would be benefited as a consequence of other conditions. Thus, where the wife of an attesting witness received a beneficial interest under the will, it was held that the husband was not a credible witness since he had an interest at the time of his attestation, and that the statute could not extinguish the interest since it was not his own, but legally his wife's.^* Nor did the statute 136 Am. St. Rep. 568, 18 Ann. Cas. 58 See statutes of the various 1089, 46 So. 549. states. In re Klein's Estate, 35 Mont 57 Gump v. Gowans, 226 111. 635, 185, 88 Pac. 798, the court says: 117 Am. St. Rep. 275, 80 N. E. "We decide that Fraser can not 1086; Pease v. Allls, 110 Mass. take his devise under the will, for 157, 14 Am. Rep. 591. the reason that he was a neces- 58 Hatfield v. Thorp, 5 Barn. & sary subscribing witness to the A. 589. same." Compare: Winslow v. Kimball, 620 COMMENTARIES ON THE LAW OF WILLS. apply to wills of personalty, since such testaments did not require attestation.** §460. The Same Subject: Statute of 1 Victoria, Ch. 26. At common law a wife took a dower interest, and a husband an estate by curtesy, in real property acquired by the other during coverture. To that extent a hus- band or wife acquired a direct beneficial interest in a devise of real property in favor of the other. The rule in England was that an interest acquired by a husband or wife was not such a direct interest as would come under the statute of 25 George II, ch. 6, and therefore, such interest not being extinguished, a husband or wife was not a competent attesting witness if the will con- tained a devise or legacy in favor of the other.*" That rule has since been modified in England by the statute of 1 Victoria, ch. 26, which enacted that if any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby giveii or made, such devise, legacy, estate, interest, gift, or ap- pointment shall, so far only as concerns such person at- testing the execution of such will, or the husband or wife of such person, or any person claiming under such person br the wife or husband, be utterly null and void, and such 25 Me. 493; .lackson v. Woods, 1 Compare: Lees v. Summersgill, Johns. Cas. (N. Y.) 163; Jackson 17 Ves. Jun. 509. V. Durland, 2 Johns. Cas. (N. Y.) eo Hatfield v. Thorp, 5 Barn. & A. 314. 589; Windham v. Chetwynd, 1 59 Brett V. Brett, 3 Addams Ecc. Burr. 414. 210, 214 ; Emanuel v. Constable, 3 Russ. 436. NUMBER AND CHAEACTEB OF WITNESSES. 621 person shall be admitted as a witness to prove th.e exe- cution of such wiU, or to prove the validity or invalidity thereof, notwithstanding such devise. § 461. The Same Subject: Rule in the United States. The rule of the old common law as to the husband or wife of a beneficiary under a will not being competent as an attesting witness thereto, has been followed in some jurisdictions in the United States.*^ Practically all the states have statutes rendering devises and bequests to subscribing witnesses void. Under such statutes, although not in terms included, it has been held that the unity of husband and wife is such in legal contemplation that if either be a witness to a will containing a devise or leg- acy to the other, such devise or legacy is void within the intent of the statute.®^ Some jurisdictions have covered this particular matter by statute.** In other states the supposed unity of husband and wife has been severed by legal enactment, or the common law rule abolished.®* 61 Fisher v. Spence, 150 lU. 253, Cas. (N. Y.) 163; Jackson v. Dur- 41 Am. St. Rep. 360, 37 N. E. 314; land, 2 Johns. Cas. (N. Y.) 314. Chicago Title etc. Co. v. Brown, 63 See synopsis of statutes, Ap- 183 111. 42, 47 L. R. A. 798, 55 N. E. pendix to this volume.— Connecti- 632; Rowlett V. Moore, 252 111. 436, cut, Genl. Laws, 1902, § 294; Mag- Ann. Cas. 1912D, 346, 96 N. E. 835; sachusetts. Rev. Laws, ch. 135, § 5; Appeal of Clark, 114 Me. 105, Ann. South Carolina, Civ. Code, 1912, Cas. 1917A, 837, 95 Atl. 517; Sulli- § 3567; Virginia, Pollard's Code, van V. Sullivan, 106 Mass. 474, 475, 1904, § 2529. 8 Am. Rep. 356; Rucker v. Lamh- 64 White v. Bower, 56 Colo. 575, din, 12 Smedes & M. (20 Miss.) Ann. Cas. 1917A, 835, 136 Pac. 230, 257; Hodgman v. Kittredge, 1053; In re Hatfield's Will, 21 Colo. 67 N. H. 254, 68 Am. St. Rep. 661, App. 443, 122 Pac. 63; Kaufman v. 32 Atl. 158; Giddings v. Turgeon, Murray, 182 Ind. 372, Ann. Cas. 58 Vt. 106, 4 Atl. 711. 1917A, 832, 105 N. E. 466; In re 62Winslow V. Kimball, 25 Me. Holt's Will, 56 Minn. 33, 45 Am. 493; Jackson v. Woods, 1 Johns. St. Rep. 434, 22 L. R. A. 481, 57 622 COMMENTARIES ON THE LAW OP WILLS. But the paramour of a beneficiary is not for that reason rendered incompetent as an attesting witness.®^ In one case a distinction has been made where the hus- band or wife takes an interest in personal property only ; it being held that such an interest is remote and con- tingent. Thus the wife, whose husband was a legatee under a decedent's will which she had attested, was held a disinterested and competent witness, she having no present vested interest in the legacy to her husband and it being his own to dispose of at his pleasure.*® § 462. Number of Witnesses Required. A written will, other than a holographic will, must always be attested and subscribed by the minimum num- ber of witnesses required by the statute, otherwise it is void.®'' A will or codicil insufficiently attested is not aided by the testimony of other persons not subscribing wit- nesses, who happen to be present at the time.®* A codicil illegally executed because of an insufficient number of attesting witnesses can not be relied upon as a repub- lication of a will so as to make it a part of the will.®* But the fact that the number of witnesses that attest N. W. 219; Gamble v. Butchee, 87 67 Notes v. Doyle, 32 App. D. C. Tex. 643, 30 S. W. 861. 413; Blackshire Co. v. Nortlirup, "A husband may be a witness to "6 Ala. 190, 42 L. R. A. (N. S.) a will m which a legacy creating ^54, 57 So. 743; Pitts v. Darby, 182 a separate estate is given to his wife." — Park's Annot. Civ. Code, Ala. 370, 62 So. 523; Brengle v. Tucker, 114 Md. 597, 80 Atl. 224; Morris v. Abney, 135 La. Ann. Ga., 1914, §3849. 3^2, 65 So. 315; Berst v. Moxom, 65 In re Klinzner's Will, 71 163 mo. App. 123, 145 S. W. 857. Misc. Rep. 620, 130 N. Y. Supp. gg Notes v. Doyle, 32 App. D. C. 1059. 413. 66 Hawkins v. Hawkins, 54 Iowa 69 St. John's Parish v. Bostwick, 443, 6 N. W. 699. 8 App. D. C. 452. NUMBER AND CHARACTER OF WITNESSES. 623 and subscribe to the will exceeds the number required by statute does not affect the validity of the instru- ment. '''' This rule obtains even if some of the witnesses did not sign in the presence of the testator,''^ or other- wise failed to comply with the statutory requirements,'^^ if a sufficient number of witnesses duly attested the will and subscribed their names thereto as witnesses. And although one or more witnesses may be interested and therefore incompetent, if the will be properly attested and subscribed by the required number of disinterested and competent witnesses, the legal requirements are ful- filled and the will is valid.''* In some states it is required by statute that the wit- nesses should sign the will in the presence of one an- other. Under such a statute, and where three witnesses were required, a will signed at one time by two wit- nesses only, can not have life imparted to it by a codicil subscribed by two witnesses, one of whom is different from the witnesses to the will itself.'^* But in jurisdic- tions where the statute does not require all the "witnesses to be present at the same time, evidence of intention that 70 Jones V. Brooks, 184 Ala. 115, 7i Jones v. Brooks, 184 Ala. 63 So. 978; Ducasse's Heirs v. Du- 115, 63 So. 978. casse, 120 La. 731, 45 So. 565; 72 Gore v. Legon, 105 Miss. 652, In re Sizer's Will, 129 App. Dlv. 7, gg ^^ j^gg 113 N. Y. Supp. 210. "Our conclusion Is that it would be an unsafe rule to hold that an undelivered deed, which by chance happened to be attested by two witnesses, could be converted into ""^ ^unlap v. Dunlap, 4 Desaus. a will by parol testimony."— Noble Eq. (S. C.) 305. V. Fickes, 230 111. 594, 12 Ann. Cas. Compare: Lea v. Llbb, Garth. 282, 13 L. R. A. (N. S.) 1203, 82 35; s. c, 3 Salk. 395. N. B. 950. 73 Wisehart v. Applegate, 172 Ind. 313, 88 N. B. 501; In re Car- son's Estate, 244 Pa. St. 401, 90 Atl. 719. 624 COMMENTAEIES ON THE LAW OF WILLS. the attestation of the codicil should apply to the will also is admissible and, if such an intention were established, the number of the witnesses might thus be completed J® §463. Holographic Wills: When Witnesses Not Required. In some jurisdictions, holographic wills are not re- quired to be attested and subscribed by witnesses. A holo- graphic- will is one written by the testator by his own hand. The statutes regarding such wills vary greatly and should be consulted in all cases. For instance, in Cali- fornia and Louisiana such a will must be entirely written, dated and signed by the hand of the testator, but no witnesses are required.''* In North Carolina'^'' and in Ten- 75 Bond V. SeaweU, 3 Burr. 1775, 76 Cal. Civ. Code, § 1277; Louisi- ana, Civ. Code (Merrick, 1913), art. 1588. The fact that the word "wit- ness" followed underneath the sig- nature of a testator to his holo- graphic will, did not invalidate the instrument. — Estate of Soher, 78 Cal. 477, 21 Pac. 8. Compare: Powers v. Davis, 3 MacArthur (D. C.) 153, 162. 11 North Carolina, Pell's Revisal, 1908, §3113; Little v. Lockman, 49 N. C. 494; Sawyer's Legatees v. Sawyer's Heirs, 52 N. C. 134; Hughes V. Smith, 64 N. C. 493; Alston V. Davis, 118 N. C. 202, 24 S. E. 15. A statute requiring that the holo- graphic will he found "among the valuable papers of the testator" is sufficiently satisfied where the will Is found in a locked safe, even though there were no other paper in the drawer of the safe in which the will was found. — Harper v. Harper, 148 N. C. 453, 62 S. B. 553. Where the law requires that the holographic will be found among the valuable papers and effects of the deceased, it is held that insur- ance policies are effects within the meaning of the statute. — ^In re Jen- kin's Will, 157 N. C. 429, 37 L. R. A. (N. S.) 842, 72 S. E. 1072. The purpose of the statute re- quiring a holographic will to be found after death among the valua- ble papers of the deceased, or de- posited with some person for safe- keeping, is to furnish evidence that the deceased attached im- portance to the paper as a testa- mentary disposition and to lessen the opportunity for fraud or im- position. — Emsweller v. Wallace (W. Va.), 88 S. E. 786. NUMBER AND CHARACTER OF WITNESSES.' 625 nessee/* holographic wills, to be valid, must be found among the valuable effects of the testator after his demise or have been deposited with some third person, during the testator's lifetime, for safekeeping. In New York a holographic will must be executed with the same formali- ties as other written wills, but the rules as to statutory requirements and alterations are less strictly applied.''^ Other states follow a similar rule,*" while in some holo- graphic wills must be executed as fully as any written will." 78 Tennessee, Thompson - Shan- non's Code, 1917, §3896; Marr v. Marr, 2 Head (39 Tenn.) 303; Tate V. Tate, 11 Humph. (30 Tenn.) 465. 79 Matter of Akers' Will, 74 App. Div. 461, 77 N. Y. Supp. 643; Mat- ter of Eakins' Will, 13 Misc. Rep. (N. Y.) 557, 35 N. Y. Supp. 489. Matter of Beckett, 103 N. Y. 167, 8 N. B. 506; Matter of Turrell, 166 ■ N. Y. 330, 59 N. E. 910. The holographic will of an il- literate person, with reference to alterations, is viewed in the light of his illiteracy. — In re Wood's Will, 144 App. Div. 259, 129 N. Y. Supp. 5. A holographic will is valid, if executed according to the laws of the state in which the testator re. sides, even though executed with- out such state. — In re Seixas' Will, 73 Misc. Rep. 488, 133 N. Y. Supp. 406. It is necessary under the laws of some states for a holographic will to be published in the pres- ence of witnesses. — In re Wilmer- I Com. on Wills — 40 ding's Will, 75 Misc. Rep. 432, 135 N. Y. Supp. 516. A holographic will is sufficiently attested where signed by the wit- nesses separately at different times on the same date,, both signatures being in the presence of the tes- tator. — ^In re Levengston's Will, 158 App. Div. 69, 142 N. Y. Supp. 829. 80 It is not necessary for the wit- nesses to a holographic will to see the signature of the testator. — Dougherty's Estate (Dougherty v. Crandall), 168 Mich. 281, Ann. Gas. 1913B, 1300, 38 L. R. A. (N. S.) 161, 134 N. W. 24. A holographic will is sufficiently signed if the testator writes his signature in the presence of the witnesses in the attestation clause, he intending it to be his signature. — In re Phelan's Estate, 82 N. J. Eq. 316, 87 Atl. 625. 81 Western Maryland College v. McKinstry, 75 Md. 188, 23 Atl. 471 ; Neer v. Cowhick, 4 Wyo. 49, 18 L. R. A. 5«8, 31 Pac. 862. 626 COMMENTARIES ON THE LAW OF WILLS. § 464. Purpose of Statutes Authorizing Holographic Wills. The purpose of the statutes authorizing a testamentary disposition of property by holographic will is to enable persons who can not secure the assistance of others in the preparation of a will, or who are not inclined to make known prior to death the disposition which has been made of their properties, to execute a valid paper in their own handwriting, without attestation and subscription by witnesses, and the formalities prescribed by the statutes are intended to effectuate this purpose, not defeat it.*^ However, the statutes prescribing the method of execu- tion of holographic wills may be said to be mandatory.^^ All formalities must be strictly observed. No matter how clearly the last wishes of the decedent may have been expressed, unless the instrument complies with the statu- tory requirement, it is invalid.®* § 465. Other Instruments Not Written by Testator Can Not Be Incorporated in a Holographic Will. Since a holographic will must be entirely written by the testator, an extrinsic document can not be incor- porated into such a will by reference unless it is wholly in the handwriting of the testator himself. Any other paper incorporated into a will becomes a part thereof, 82Emsweller v. Wallace, (W. 83 Miss. 793, 1 Ann. Cas. 371, 36 Va.) 88 S. B. 786. So. 539; In re Noyes' Estate, 40 88 In re Jenkin's Will, 157 N. C. Mont. 190, 20 Ann. Cas. 366, 26 429, 37 L. R. A. (N. S.) 842, 72 L. R. A. (N. S.) 1145, 105 Pac. S. E. 1072. 1017, 1020; Warwick v. Warwick, 84 Scott V. Harkness, 6 Idaho 86 Va. 596, 602, 6 L. R. A. 775, 10 736, 59 Pac. 556; Baker v. Brown, S. B. 843. NUMBER AND CHARACTER OP WITNESSES. 627 and if not written by the testator, the whole will can not be said to be by his hand.®^ § 466. Holographic Wills : How and Where Signed. The name of the testator must be signed by him on some part of the paper. This is for identification of the testator and to furnish evidence that the paper is a completed document.^® Written instruments are usually signed at the end thereof, and this would appear to be the logical place for the testator's signature. But if the maker's name appears elsewhere on the paper, at the top, on the margin, or in the body of it, such a signing, from its very nature, would be an equivocal act, and it would be an uncertain indication of the tes- tator's intent to authenticate the instrument unless some- thing appears on the face of the instrument to show it was intended as final.*^ Other authorities, however, hold that the testator 's name appearing anywhere on the paper is sufficient.** A holographic will not signed by the tes- tator, although enclosed in an envelope upon which he had written his signature, was denied probate.*^ A de- es Hewes v. Hewes, 110 Miss. ss Estate of Johnson, Myrick's 826, 71 So. 4; Gibson v. Gibson, 28 Prob. (Cal.) 5; Estate of Barker, Gratt. (69 Va.) 44. Myrick's Prob. (Cal.) 78; Estate of See, ante, §§ 65-68, as to other Stratton, 112 Cal. 513, 44 Pac. •writings incorporated in a will by 1028; Estate of Camp, 134 Cal. reference. 233, 66 Pac. 227; Tate v. Tate, 11 86 Emsweller v. Wallace, (W. Humph. (30 Tenn.) 465; Lawson Va.) 88 S. B. 786. v. Dawson, 21 Tex. Civ. App. 361, 87 In re Tyrrell's Estate, 17 Ariz. 53 S. W. 64. 418, 153 Pac. 767, 770; Succession 89 In re Poland's Estate, 137 La. of Armant, 43 La. Ann. 310, 26 Am. Ann. 219, 68 So. 415. St. Rep. 183, 9 So. 50; Ramsey v. See, also, Plumstead's Appeal, 4 Ramsey's Exr., 13 Grat. (Va.) 664, Serg. & R. (Pa.) 545; Roy v. Roy's 70 Am. Dec. 438; Roy V.Roy's Exr., Exr., 16 Grat. (Va.) 418, 84 Am. 16 Grat. (Va.) 418, 84 Am. Dec. 696. Dec. 696. 628 COMMENTARIES ON THE LAW OP WILtS. cedent wrote at the head of a sheet of note paper: "This is my last and only will. If I should make another later I will destroy this one," not signing her name on the paper but enclosing it in an envelope which she indorsed : "This is my last and only will. To be opened by the officers of the Humane Society at Phoenix." Following this she signed her name, ' ' Miss M. A. R. Tyrrell. ' ' There was held to be no sufficient connection between the two papers to incorporate them as one and they were re- jected.®** This rule is favored, but in another case, upon very similar facts, a signed envelope and unsigned en- closure were admitted.®^ §467. The Same Subject: Meaning of "Written by the Hand of the Testator." A holographic will must be entirely written by the hand of the testator."^ Writing, in this sense, does not in- 90 Estate of Tyrrell, 17 Ariz. 418, character, and apparently torn 153 Pac. 767. from the same writing pad. They See, also. Estate of Rand, 61 Cal. were found folded together In a 468, 44 Am. Rep. 555; Estate of locked drawer; the last sheet was Walker, 110 Cal. 387, 42 Pac. 815, In itself a perfect holographic will. 30 L. R. A. 460, 52 Am. St. Rep. It was held, notwithstanding, that 104; Succession of Armant, 43 La. all three sheets were entitled to Ann. 310, 26 Am. St. Rep. 183, 9 So. prohate as one instrument. 50; Baker v. Brown, 83 Miss. 793, In Alexander v. Johnston, 171 1 Ann. Gas. 371, 36 So. 539; Sears N. C. 468, 88 S. B. 785, it was held V. Sears, 77 Ohio St. 104, 17 that where the purported will was L. R. A. (N. S.) 353, 11 Ann. Gas. unsigned but inclosed in an en- 1008, 82 N. E. 1067' Warwick v. velope oa which was written "Julia Warwick, 86 Va. 596, 6 L. R. A. W. Johnston Will" in the hand- 775, 10 S. E. 843. writing of the deceased, the two 91 In the Estate of Merryfield, documents together were entitled 167 Cal. 729, 141 Pac. 259, the de- to probate. ceased had written the purported 82 The term "writing," as used will on three sheets of paper with reference to date and as in- which were all of the same size, eluding printed words as well as NUMBER AND CHARACTER OF WITNESSES. 629. elude printing, and if any part of a holographic will is a printed form, the instrument is invalid since not wholly written by the testator.®* This rule applies with equal force where the statute requires the will to be dated in the handwriting of the testator. By date is included the year, month, and date of the month.®* The general rule that the provisions of the statute are to be liberally con- strued has never been stretched to excuse the lack of sub- stantial compliance with the requirement, when demanded by statute, that a holographic will must be dated by the testator.'® If the will must be dated by its maker, it is invalid if part of the date is printed.®® The date, how- ordinary writing, does not apply to holographic -wills. Writing, in connection wiith holographic -wills, is used in its ordinary, sense^to set do-wn legible characters in pen and ink. — Succession of Robertson, 49 La. Ann. 868, 62 Am. St. Rep. 672, 21 So. 586. The paper must be in the hand- writing of the deceased. This is to identify the testator, to form the casual connection between the writer and the writing, and to pre- vent the possibility of change and alterations without the consent of the testator. — Emsweller v. Wal- lace, (W. Va.) 88 S. B. 786. 93 Estate of Rand, 61 Cal. 468, 44 Am. Rep. 555; Estate of Bill- ings, 64 Cal. 427, 1 Pac. 701 ; Maris V. Adams, (Tex. Civ. App.) 166 S. W. 475. 94 Stead V. Curtis, 191 Fed. 529, 112 C. C. A. 463; Estate of Price, 14 Cal. App. 462, 112 Pac. 482; Estate of Martin, 58 Cal. 530, 531; Estate of Anthony, 21 Cal. App. 157, 131 Pac. 96. 95 Estate of Martin, 58 Cal. 530, .532; Estate of. Rand, 61 Cal. 468, 474, 44 Am. Rep. 555; Estate of Billings, 64 Cal. 427, 1 Pac. 701; In re Plumel's Estate, 151 Cal. 77, 79, 90 Pac. 192, 121 Am. St. Rep. 100; In re Carpenter's Estate, 172 Cal. 268, L. R. A. 1916E, 498, 156 Pac. 465. 96 Estate of Billings, 64 Cal. 427, 1 Pac. 701; In re Plumel's Estate, 151 Cal. 77, 121 Am. St. Rep. 100, 90 Pac. 192; Heffner v. Heffner, 48 La. Ann. 1088, 20 So. 281; Succes- sion of Robertson, 49 La. Ann. 868, 62 Am. St. Rep. 672, 21 So. 586; In re Noyes' Estate, 40 Mont. 190, 20 Ann. Gas. 366, 26 L. R. A. (N. S.) 1145, 105 Pac. 1017. , A holographic will was suffi- ciently dated where the date was given as follows: "4-14-07." — In re Estate of Chevallier, 159 Cal. 161, 113 Pac. 130. G30 COMMENTARIES ON THE LAW OP WILLS. ever, does not include the place where the will is exe- cuted.®'' An immaterial portion of a holographic will, such as the place where the will was dated, printed at the head of the paper, has been held not to invalidate the instrument,^* likewise one with a printed heading, "My will."»8 A holographic will which has no other date than "dated this day of 1906," Is invalid under the California statute, there being nothing definite about the date, except the year. — In re Price's Estate, 14 Cal. App. 462, 112 Pac. 482. Where the testator mutilated his holographic will and afterwards undertook to restore it by pasting the pieces together, but left out a piece containing two figures of the date of the year, the will was void because not dated. — ^Succession of Swanson, 132 La. 606, 61 So. 685. 97 Stead V. Curtis, 191 Fed. 529, 112 C. C. A. 463. 98 Succession of Robertson, 49 La. Ann. 868, 62 Am. St. Rep. 672, 21 So. 586. 99 Baker v. Brown, 83 Miss. 793, 1 Ann. Cas. 371, 36 So. 539. CHAPTER XVin. ACKNOWLEDGMENT OF SIGNATURE AND PUBLICATION OP WILL. § 468. Acknowledgment of signature : Rule under the Statute of Frauds. § 469. Acknowledgment of signature is expressly mentioned in the statute of 1 Victoria, ch. 26. § 470. American statutes regarding acknowledgment of signa- ture by testator. § 471. When testator does not sign in presence of witnesses, acknowledgment of signature is necessary. § 472. The same subject : Exhibiting signature necessary. § 473. The same subject. § 474. "What constitutes acknowledgment. § 475. The same subject : Where will is signed for testator by a third person. § 476. "Acknowledgment" and "publication" distinguished. § 477. Time of publication. § 478. Publication not required under the Statute of Frauds. § 479. Publication, where required. § 480. Proof of publication. § 481. What constitutes publication : Surrounding facts and cir- cumstances. § 482. The same subject : Acquiescence or approval. § 483. The same subject: Reading full attestation clause to wit- nesses. §468. Acknowledgment of Signature: Rule Under the Statute of Frauds. The Statute of Frauds, 29 Charles II, ch. 3, required that devises of real property should be signed by the tes- tator or by some other person in his presence and by his (631) 632 COMMENTARIES ON THE LAW OF WILLS. express direction, and should be attested and subscribed in the presence of the testator by three or more credible witnesses. The statute did not, in terms, provide for acknowledgment of his signature by the testator, nor did the statute require the testator to sign in the presence of the witnesses. Under the statute, it became the well settled rule in England that the testator need not sign his will in the presence of the witnesses provided he had previously actually signed the same and then acknowl- edged his signature to the witnesses.^ § 469. Acknowledgment of Signature Is Expressly Mentioned in the Statute of 1 Victoria, Ch. 26. The statute of 1 Victoria, ch. 26, sec. 9, added a requi- site not found in the Statute of Frauds,^ that the signa- ture of the testator "shall be m,ade or acknowledged hj the testator in the presence of two or more witnesses present at the same time."^ The language of the act thus provides for the acknowledgment of the signature ajid there can be no sufficient acknowledgment unless the signature is exhibited to the witnesses or they are af- forded the opportunity of seeing it.* A declaration by iStonehouse v. Evelyn, 3 Thurland, 2 P. Wms. 506 ; Smith v. P. Wms. 253; Grayson v. Atkinson, Smith, L. R. 1 P. & D. 143. 2 Ves. Sen. 454; Ellis v. Smith, 1 Compare: Hindmarsh v. Charl- Ves. Jun. 12; Gryle v. Gryle, 2 Atk. ton, 8 H. L. Cas. 160; s. c, 1 Sw. & 177. Tr. 433. 2 Smith V. Codron, cited In 2 4 Goods of Swinford, L.. R 1 P. & Ves. Sen. 455; Ellis v. Smith, X D. 631; Pearson v. Pearson, L. R. Ves. Jun. 11. 2 P. & D. 451; Morritt v. Douglas, 3 In re Allen, 2 Curt. 331; In re L. R. 3 P. & D. 1; Shaw v. Neville, Simmonds, 3 Curt. 79 ; Moore v. 1 Jur. N. S. 408 ; Goods of Gunstan, King, 3 Curt. 243; s. c.,' 2 Notes of L. R. 7 Pro. Div. 102. Cag. 45; s. c, 7 Jur. 205; Cook v. See, also, Ilottv. Genge, 4 Moore Parsons, Preo. oh. 184; Dormer v. P. C. C, 265; s. c, 3 Curt. 160; s. C, ACKNOWLEDGMENT AND PUBLICATION. 633 the testator that the mstrument is his will has been held insufficient, the signature of the testator having been hid- den from the witnesses.^ But where the signature is shown the witnesses, or they are given the opportunity of seeing it, and the witnesses are requested to subscribe as such, it is not required that the testator expressly ac- knowledge his signature.® A declaration to the witnesses by the testator that the instrument is his last will has been held a sufficient acknowledgment of his signature.'' § 470. American Statutes Regarding Acknowledgment of Sig- nature by Testator. In the United States the statutes in many jurisdictions regarding signing by the testator and attesting witnesses are based upon the Statute of Frauds, no mention in terms being made of acknowledgment of the signature. In New York, however, the statute reads that "A will must be subscribed by the testator at the end of the will, in the presence of the attesting witnesses, or acknowl- edged by him to have been so made to each of the attest- ing witnesses."* Similar reference to acknowledgment 8 Jur. 32S; Hudson v. Parker, 1 2; In re Jones, 1 Deane & Sw. 3; Rob. Ecc. 14; s. c, 8 Jur. 786; In Gaze v. Gaze, 3 Curt. 451; Keigwin^ re Harrison, 2 Curt. 863; Faulds v. v. Keigwin, 3 Curt. 607; Goods of Jackson, 6 Notes of Cas. Supp. 1. Huckvale, L. R. 1 P. & D. 375, 378 ; Compare: Beckett v. Howe, L. R. Inglesant v. Inglesant, L. R. 3 P. 2 P. & D. 1, which was disap- & D. 172; Goods of Jones, 1 Jur. proved in Goods of Gunstan, N. S. 1096. L. R. 7 Pro. Div. 102, which last Compare: Morrltt T. Douglas, case followed Hudson v Parker, L. R. 3 P. & D. 1. 1 Rob. Ecc. 14. Also compare 7 Gwillim v. Gwlllim, 3 Sw. & Matter of Harrison, 2 Curt. 863. Tr. 200; In re Davis, 3 Curt 748; 5 Goods of Gunstan, L. R. 7 Pro. In re Ashmore, 3 Curt. 756; In re Div. 102; Shaw v. Neville, 1 Jur. Huckvale, L. R. 1 P. & D. 375. N. S. 408. 8 New York Consol. Laws, 1909, 6 In re Phllpot, 3 Notes of Cas. ch. 13, art. 1, § 21. 634 COMMENTARIES ON THE LAW OF WILLS. of his signature by the testator -will be found in the statutes of California, New Jersey, and Virginia.* The generally accepted rule in the United States, whether the law be based upon the Statute of Frauds or the statute of 1 Victoria, ch. 26, is that signing by the testator in the presence of the witnesses is unnecessary if he properly acknowledges his signature to them.^" The difference is in the extent of the acknowledgment, and the statutes in all instances should be referred to. In New Jersey, prior to 1851, it was necessary that the witnesses should be actually present and see the testator sign the will,^^ but by an act of that year it was provided in New Jersey that acknowledgment by the testator that he had executed his will might take the place of signing 9 See synopsis of statutes, Ap- pendix, this volume. 10 Leverett's Heirs v. Carlisle, 19 Ala. 80; Abraham v. Wilkins, 17 Ark. 292; Canada's Appeal, 47 Conn. 450; Sutton v. Sutton, 5 Har. (Del.) 459; Webb v. Fleming, 30 Ga. 808, 76 Am. Dec. 675; Denton V. Franklin, 9 B. Mon. (48 Ky.) 28; Flood V. Pragoff, 79 Ky. 607; Stir- ling V. Stirling, 64 Md. 144, 21 Atl. 273; Cravens v. Paulconer, 28 Mo. 19 ; Welch v. Adams, 63 N. H. 344, 56 Am. Rep. 521, 1 Atl. 1; Matter of McElwaine's Will, 18 N. J. Eq. 499; In re Coles, (N. J.) 47 Atl. 385; Baskin v. Baskin, 48 BSrb. (N. Y.) 200; Matter of Abercrom- bie, 24 App. Div. (N. Y.) 407, 48 N. Y. Supp. 414; Keyl v. Feuchter, 56 Ohio St. 424, 47 N. E. 140; Al- len v. Griffin, 69 Wis. 529, 35 N. W. 21. "The witnesses need not have seen the testator sign the will. It would have been sufficient if all the witnesses, in the presence of each other and in the presence of the testator, signed the will after he had signed it, upon his acknowl- edgment of having signed it, al- though they did not see him affix his signature." — Brown v. McBride, 129 Ga. 92, 58 S. E. 702. 11 Mundy v. Mundy, 2 McCart. (15 N. J. Eq.) 290; Den ex dem. Mickle v. Matlack, 17 N. J. Law 86; Bailey v. Stiles, 1 Green Ch. (2 N. J. Eq.) 220; Combs v. Jolly, 2 Green Ch. (3 N. J. Eq.) 625; In re McElwaine's Will, 18 N. J. Eq. 499. Compare: Ex parte Henry, 24 Ala. 638; Abraham v. Wilkins, 17 Ark. 292. ACKNOWLEDGMENT AND PUBLICATION. 635 in the presence of witnesses. This is now the general rule in America and in England.^'' § 471. When Testator Does Not Sign in Presence of Witnesses, Acknowledgment of Signature Is Necessary. One purpose for which witnesses are required is that of identifying the signature of the testator and, in order to do this, it is necessary that they see him sign his name, or that it be exhibited to them by the testator and that he acknowledge that the same is his signature.^* If the testator does not sign in the presence of the wit- nesses, a failure to acknowledge his signature is fatal to 12 Ellis V. Smitli, 1 Ves. Jr. 11; Webb V. Fleming, 30 Ga. 808, 76 Am. Dec. 675; Yoe v. McCord, 74 111. 33; Crowley v. Crowley, 80 111. 469; Reed v. Watson, 27 Ind. 443; In re Convey's Will, 52 Iowa 197, 2 N. W. 1084; Stirling v. Stirling, 64 Md. 138; 21 Atl. 273; Small v. Small, 4 Greenl. (4 Me.) 220, 18 Am. Dec. 253; Chase v. Kittredge, 11 Allen (Mass.) 49; 87 Am. Dec. 687; Osbom v. Cook, 11 Cush. (Mass.) 532, 59 Am. Dec. 155; Ela V. Edwards, 16 Gray (Mass.) 91; Hall V. Hall, 17 Pick. (Mass.) 373; Sechrest v. Edwards, 4 Mete. (Ky.) 163; Ray v. Walton, 2 A. K. Marsh. (9 Ky.) 71; Dewey v. Dewey, 1 Mete. (Mass.) 349, 35 Am. Dec. 367; Cravens v. Faulconer, 28 Mo. 19; Jauncey v. Thorne, 2 Barb. Ch. (N. y.) 40, 45 Am. Dec. 424; Lewis V. Lewis, 11 N. Y. 220; Hoysradt v. Kingman, 22 N. Y. 372; Baskin v. Baskin, 36 N. Y. 416; Willis v. Mott, 36 N. Y. 486; Sisters of Charity v. Kelly, 67 N. Y. 409; Eelbeck's Devisees v. Gran- berry, 3 N. C. (2 Hayw.) 232; Reynold's Lessee v. Shirley, 7 Ohio 39; Rosser v. Franklin, 6 Grat. (Va.) 1, 52 Am. Dec. 97; Parra- more v. Taylor, 11 Grat. (Va.) 220; Beane v. Yerby, 12 Grat. (Va.) 239; Adams v. Field, 21 Vt. 256; Rob- erts V. Welch, 46 Vt. 164. 13 In re Keeffe's Will, 155 App. Div. 575, 141 N. Y. Supp. 5; Matter of Maekay, 110 N. Y. 611, 6 Am. St. Rep. 409, 1 L. R. A. 491, 18 N. E. 433; Matter of Laudy, 148 N. Y. 403, 42 N. E. 1061; Herring V. Watson, 182 Ind. 374, 105 N. B. 900; Nixon V. Snellbaker, 155 Iowa 390, 136 N. W. 2.23; Nunn v. Ehl- ert, 218 Mass. 471, L. R. A. 1915B, 87, 106 N. E. 163; Miller v. Miller, 96 Miss. 526, 51 So. 210; Spier v. Spier (In re Spier's Estate), 99 Neb. 853, L. R. A. 1916B, 692, 157 N. W. 1016; Umstead v. Bowling, 150 N. C. 507, 64 S. E. 368, 370. 636 COMMENTARIES ON THE LAW OF WILLS. the validity of the will. A formal attestation clause can not afford the presumption of proper attestation when the e'^ddence shows there was none.^* The testator may either sign his own name or cause it to be signed by some third person at his request without the presence of the witnesses, but in such case the testator must exhibit the signature to the witness and acknowledge it as his sig- nature.*^ If the testator's name is signed by a third person and he adopts and acknowledges it as his signa- ture, it is a valid signing.*® Where the testator signs by making his mark he must acknowledge it as his signa- ture." §472. The Same Subject: Exhibiting Signature Necessary. Where the language of the statute regarding acknowl- edgment of his signature by the testator is similar to 14 In re Rumsey's Will, 3 De- proved. — In re Kessler's Estate, marest (N. Y.) 494. 221 Pa. St. 314, 128 Am. St. Rep. 15 In re Herring's Will, 152 N. C. 741, 15 Ann. Cas. 791, 70 Atl. 770. 258, 67 S. E. 570; Watson v. Hin- 16 Elston v. Montgomery, 242 111. son, 162 N. C. 72, Ann. Cas. 1915A, 348, 26 L. R. A. (N. S.) 420, 90 870, 77 S. E. 1089; In re Marley's N. E. 3. (or Morley) Will, 140 App. Div. If witnesses, in response to sum- 823, 125 N. Y. Supp. 886. mons as such, are present when The witness went into the office the testator makes a futile effort where the testator was seated at a to sign, and see then another per- desk with the will already signed son sign for him, their attesta- by him in his hand, the name of tion thereupon is good. — ^Llndsey the testator being in the plain v. Stephens, 229 Mo. 641, 129 S. W. view of the witness, who was re- 641. quested to sign his name below it In re Rogers' Will, 52 Misc. that of the other subscribing wit- Rep. 412, 103 N. Y. Supp. 423. ness, which he did, after having The name of the testator, in been told by the other witness out execution of his will, "may be writ- in the shop that the testator de- ten out of the presence of the wit- sired him to be a witness to his nesses if he make his mark in will. This attestation was ap- their presence, placing it inside ACKNOWLEDGMENT AND PUBLICATION. 637 that of the English statute, the holding of the decisions is likewise similar to the English rule. Under the Stat- ute of Frauds the declaration by the testator that the instrument was his will was held equivalent to an actual signing by the testator in the presence of the witnesses.^* The New York rule is that the witnesses must, at the time of acknowledgment, see or have the opportunity to see the signature of the testator ;i' and where the paper was not signed in the presence of the witnesses and they could not see whether it had been subscribed by the testator or not, even his declaring ' ' The within to be my act and deed" was held an insufficient acknowledgment.^" the written name. — ^Robinson v. Jones, 105 Md. 62, 65 Atl. 814. 18 In White v. Trustees of Brit- ish Museum, 6 Bing. 310, 3 Moore & P. 689, wherein, referring to sec- tion 5 of the Statute of Frauds, it is said: "It is unnecessary for the testator actually to sign the will in the presence of the three witnesses who subscribe the same and that any acknowledgment be- fore the witnesses that it is his signature, or any declaration be- fore them, that it is his will, is equivalent to an actual signing in their presence, and makes the at- testation and subscription com- plete." 19 Chaffee v. Baptist Missionary Convention, 10 Paige (N. Y.) 85, 40 Am. Dec. 225; Rutherford v. Rutherford, 1 Denio (N. Y.) 33, 43 Am. Dec 644; Lewis v. Lewis, 11 N. Y. 220; In re Mackay's Will, 110 N. Y. 611, 6 Am. St. Rep. 409, 1 L. R. A. 491, 18 N. B. 433. Compare: Dewey v. Dewey, 1 Mete. (Mass.) 349, '35 Am. Dec. 367; Ela v. Edwards, 16 Gray (Mass.) 91, 59 Am. Dec. 155. 20 Lewis V. Lewis, 11 N. Y. 220. To the same effect, see In re Mackay's Will, 110 N. Y. 611, 6 Am. St. Rep. 409, 1 L. R. A. 491, IS N. E. 433. See, also. Matter of Laudy, 148 N. Y. 403, 42 N. E. 1061; In re Dougherty's Estate, 168 Mich. 281, Ann. Cas. 1913B, 1300, 38 L. R. A. (N. S.) 161, 134 N. W. 24; Tobin v. Haack (In re Lud- wig's Estate), 79 Minn. 101, 81 N. W. 758; Richardson v. Orth, 40 Ore. 252, 66 Pac. 925, 69 Pac. 455. The contrary was held in Willis V. Mott, 36 N. Y. 486, but this was overruled in Re Mackay's Will, 110 N. Y. 611, 6 Am. St. Rep. 409, 1 L. R. A. 491, 18 N. E. 433, hold- ing that the expressions in the for- mer case to be mere dictum. "A signature neither seen, iden- tified, nor in any manner referred 638 COMMENTARIES ON THE LAW OP WILLS. Where a testator came into a store where two persons were, and produced a paper, and said: "I have a paper which I want you to sign." One of the persons took the paper, and saw what it was and the signature of the deceased. The testator then said: "This is my will; I want you to witness it." Both the persons thereupon signed the paper as witnesses, under the attestation clause. The deceased then took the paper and said: "I declare this to be my last will and testament," and de- livered it to one of the witnesses for safekeeping. At the time when this took place the paper had the name of the testator at the end thereof. It was held that the will was not properly executed for the reason that one of the witnesses did not see the testator's signature, and as to that witness there was not a sufficient acknowledg- ment or a proper attestation.^^ But where the signature of the testator is exhibited to the witnesses and they are requested to subscribe their names as such to the instru- ment which the testator declares to be his last will and tes- tament it is held that the requirements of the statute have been met.^^ to as a separate and distinct thing, Compare: In re Simmons's Will, can not in any just sense be said 56 Hun 642, 9 N. Y. Supp. 852. to be acknowledged by a reference As to New Jersey rule, see Lud- to the entire instrument by name low v. Ludlow, 35 N. J. Bq. 480; to which the signature may or may Stewart v. Stewart, 56 N. J. Eq. not be at the time subscribed."— 761, 40 Atl. 438. Allen, J., in Lewis v. Lewis, 11 Where the testator prepared the N. Y. 220. instrument himself, signed it and 21 Mitchell V. Mitchell, 16 Hun then produced it before the wit- (N. Y.) 97; affirmed in 77 N. Y. nesses with his signature plainly 596. displayed and asked them to sign, 22 Baskin v. Baskin, 36 N. Y. it was held sufficient. — In re Bas- 416; Gilbert v. Knox, 52 N. Y. sett's Will, 84 Misc. Rep. 656, 146 125. N. Y. Supp. 842. ACKNOWLEDGMENT AND PUBLIC_LTION. G39 § 473. The Same Subject. "If a person's name appear to an instrument pur- porting to be his will, and lie acknowledge to the wit- nesses that name to have been subscribed by him, or subscribed for him at his request, or with his consent, and adopted by him as his own act, it is a good sub- scription of the paper as a will. In the absence of a sub- scription in presence of the witnesses, there must be substantially such an acknowledgment; and the law will not deem sufficient proof of subscription that which does not come up to this."^* For example, an illiterate tes- tator made his mark and had his name written for him by a friend; he then went to two persons and asked them to witness his will, which they did, but without the tes- tator calling their attention to the fact that the subscrip- tion of his name had been made by his authority ; and the court held that there had been no proper acknowledgment of the signature.^* And if one of the witnesses neither saw the testator subscribe, nor heard him acknowledge the signature, it is fatal to the validity of the will.^® § 474. What Constitutes Acknowledgment. Where the statute requires an acknowledgment of the signature only, it need not be expressly made; a mere statement by the testator that the paper is his will, and a request to the witnesses to attest,^* or a direction to 23 Chafflee v. Baptist Missionary Ludlow v. Ludlow, 35 N. J. Eq. Convention, 10 Paige (N. Y.) 85, 480; Rutherford v. Rutherford, 1 40 Am. Dec. 225; Lewis v. Lewis, Denio (N. Y.) 33, 43 Am. Dec. 644. 11 N. Y. 220; Sisters of Charity v. 26 in re Huckvale, L. R. 1 P. & Kelly, 67 N. Y. 409. D. 375; Beckett v. Howe, L. R. 2 24 Taney's Estate, Myrick's Prob. P. & D. 1; Gwillim v. Gwillim, 3 (Cal.) 210. Sw. & Tr. 200; s. c, 29 Law J. 25 In re Killick, 3 Sw. & Tr. 578; Prob. 31; Blake v. Knigtt, 3 Curt. 640 COMMENTAEIES ON THE LAW OP WILLS. the witnesses to put their names under his,^^ or simply a request to sign tlie paper, made either by the testator or by some one in his presence, is a substantial and suf- ficient compliance with the requirement.^^ The acknowl- edgment by the testator of his signature need not be in exact words, but it must be manifested in some way;^^ 547; In re Davis, 3 Curt. 748; In re Ashmore, 3 Curt. 756; s. c, 7 Jur. 1045; Dewey v. Dewey, 1 Mete. (Mass.) 349, 35 Am. Dec. 367; Hogan V. Grosvenor, 10 Mete. (Mass.) 54, 43 Am. Dec. 414; Bas- kln V. Baskin, 48 Barb. (N. Y.) 200. Contra: Taney's Estate, My- rick's Prob. (Cal.) 210. "It is not required that the tes- tator should sign his name to the will in the presence of the attest- ing witnesses. The term 'attested' as used in the statute does not im- port that it is required that the witnesses should see the very act of signing by the testator. The acknowledgment by the testator that the name signed to the instru- ment Is his, accompanied by a re- quest that the person should attest as a witness, is clearly sufficient. ... So a declaration by a tes- tator, before- the witnesses, that the paper is his will, is sufficient to authorize their attestation, and to make it a good will." — Dewey v. Dewey, 1 Mete. (Mass.) 349, 35 Am. Dec. 367. In Tennessee a man wrote his will and signed it, had a witness sign in attestation without dis- closing to him the nature of the instrument, and then had another witness sign to whom he declared the nature of the paper, but neither witness saw the other sign. It was held this was sufficient under the Statute of Frauds, which prevails where there is no statute requiring publication. — Long v. Mickler, 133 Tenn. 51, 179 S. W. 477. 27 In re Philpot, 3 Notes of Ca3. 2; Gaze v. Gaze, 3 Curt. 451; s. c., 7 Jur. 803. 28 In re Jones, 1 Deane & L. 3; 1 Jur. N. S. 1096; In re Bosanquet, 2 Rob. Ecc. 577; Keigwin v. Keig- win, 3 Curt. 607; s. c, 7 Jur. 840; Inglesant v. Inglesant, L. R. 3 P. & D. 172; Faulds v. Jackson, 6 Notes of Cas. Supp. 1. Contra: Morritt v. Douglas, L. R. 3 P. & D. 1; Chaffee v. Baptist Missionary Convention, 10 Paige (N. Y.) 85, 40 Am. Dec. 225. 29 Manners v. Manners, 72 N. J. Bq. 854, 66 Atl. 583; In re Rogers' Will, 52 Misc. Rep. 412, 103 N. Y. Supp. 423. If the witnesses are summoned as such by the testator, and see him attempt to sign and fail in the attempt, and see then another per- son do so for him, and they then ACKNOWLEDGMENT AND PUBLICATION. 641 it may be by his acts or conduct,*" or by a mere nod of the head.*^ Where the testator showed his will to wit- nesses, asking them if they recognized his signature and requesting them to sign, it was held a sufficient acknowl- edgment.*^ §475. The Same Subject: Where Will Is Signed for Testator by a Third Person. Where the will has been signed for the testator by an- other person in the absence of the attesting witnesses, the acknowledgment need not be in any particular form ; it is sufficient if the witnesses are made to understand by signs or attending circumstances that the testator ac- knowledges the signature as his and the instrument to be his will.** And from such acknowledgment it will be pre- sumed that the signature was made by authority of the testator.** But where one of the witnesses saw the tes- tator's name signed to the will by a third person in the presence and by the direction of the testator, but did not hear him acknowledge it as his will, and the other wit- nesses, who attested the will the next day, heard the tes- tator say it was his will without expressly acknowledging sign In attestation, the proof is 3i Craig v. Trotter, 252 111. 228, good. — Lindsey v. Stephens, 229 96 N. E. 1003. Mo. 600, 129 S. W. 641. 32 Stewart v. Stewart, (N. J.) 68 30 Brown v. McBride, 129 Ga. 92, Atl. 1116. 58 S. E. 702; TJmstead v. Bowling, 33 Haynes v. Haynes, 33 Ohio St. 150 N. C. 507, 64 S. E. 368; In re 598, 31 Am. Rep. 579. Herring's Will, 152 N. C. 258, 67 Compare: Taney's Estate, My- S. E. 570; In re Kessler's Estate; rick's Prob. (Cal.) 210. 221 Pa. St. 314, 128 Am. St. Rep. 34 Haynes v. Haynes, 33 Ohio 741, 15 Ann. Cas. 791, 70 Atl. 770. St. 598, 31 Am. Rep. 579. I Com. on Wills— 41 642 COMMENTAEIES ON THE LAW OP WILLS. the signature, it was held that the will was not duly- proved so as to devise realty.^' §476. "Acknowledgment" and "Publication" Distinguished. The term "acknowledgment" is generally used with reference to the signature of the testator and must not be confused with "publication" which refers to the will itself. The law of wills requires a signing or subscrip- tion by the testator or by some one else at his direction. This may be by mark or otherwise, but in all cases where the witnesses did not see the actual signing the testator must acknowledge his signature and it is the signature which the witnesses attest. The requirement as to attes- tation and subscription by the witnesses is, among other things, to identify and authenticate the instrument as the one signed by the testator or by another for him. Pub- lication is the declaration by the testator that the instru- ment is his last will and testament.'® This is required to be done in the presence of each of the witnesses, when demanded at all, in order to prevent imposition upon the testator by procuring him to execute and acknowledge a will or codicil under the pretense that it was a paper of a different nature. The two requirements are distinct in their nature as well as in purpose; and where both are 35Burwell v. Corbin, 1 Rand. Neb. 853, L. R. A. 1916E, 692, 157 (Va.) 131, 10 Am. Dec. 494. N. W. 1014. See, also, In re Ayers' Compare: In re Baldwin's Will, Estate, 84 Neb. 16, 120 N. W. 491; 67 Misc. Rep. 329, 124 N. Y. Supp. In re Claflin's Will, 73 Vt 129, 87 612. Am. St. Rep. 693, 50 Atl. 815; In re 36 Publication consists In "the Claflin's Will, 75 Vt. 19, 58 L. R. A. act or acts of the party by which 261, 52 Atl. 1053. he manifests that it his Intention To the same effect, see Ripley v. to give effect to the paper as his Armstrong, 159 N. C. 158, 74 S. B. last will and testament." — Spier v. 661. Spier (In re Spier's Estate), 99 ACKNOWLEDGMENT AND PUBLICATION. 643 required the failure to comply with either is fatal to the validity of the instrument.*'^ § 477. Time of Publication. The acknowledgment required by the statute is the rec- ognition before the attestation witnesses by the testator that his will is duly signed, although not signed in their presence. It is this legalized recognition which the wit- nesses attest by subscribing their names. The paper which the testator acknowledges to the subscribing wit- nesses must, at the time of such acknowledgment, be a completed or finished will so far as the requirements which the statute imposes upon the testator are con- cerned. The acknowledgment must be of a finished sig- nature.^* When publication is required, a testamentary document is not complete until the testator has signed or acknowledged his signature, declared the instrument to be his will, and the attesting witnesses have duly sub- scribed it, but it is wholly immaterial whether the tes- tator make such declaration or publication before, after or contemporaneously with the making or acknowledg- ment of his signature.*® The publication, however, must 37 Baskin v. Baskin, 36 N. Y. 416. 39 In re Mannlon's Estate, (N. J.) 38 Lane V. Lane, 125 Ga. 386, 114 95 Atl. 988; Doe v. Roe, 2 Barb. Am. St. Rep. 207, 5 Ann. Cas. 462, (N. Y.) 200; Lewis v. Lewis, 13 54 S. B. 90; Reed v. Watson, 27 Barb. (N. Y.) 17; Keeney v. Whit- Ind. 443, 448; Limbach. v. Bolin, marsh, 16 Barb. (N. Y.) 141; In re 169 Ky. 204, 183 S. W. 495, 497; Gamber's Will, 53 Misc. Rep. 168, Chase v. Kittredge, 11 Allen 104 N. Y. Supp. 476; In re De (Mass.) 49, 87 Am. Dec 687; Til- 'Hart's Will, 67 Misc. Rep. 13, 122 den V. Tllden, 13 Gray (Mass.) 110; N. Y. Supp. 220; In re Baldwin's Lewis V. Lewis, 11 N. Y. 220; Will, 67 Misc. Rep. 329, 124 N. Y. Jauncey v. Thome, 2 Barb. Ch. Supp. 612; In re Baumann's Will, (N. Y.) 40, 45 Am. Dec, 424; Sim- 85 Misc. Rep. 656, 148 N. Y. Supp. mons V. Leonard, 91 Tenn. 183, 30 1049; Jackson v. Jackson, 39 N. Y. Am. St. Rep. 875, 18 S. W. 280. 153. 644 COMMENTARIES ON TUB LAW OF WILLS. be to both witnesses, publication to one only being insuf- ficient.*" § 478. Publication Not Required Under the Statute of Frauds. The Statute of Frauds made no provision for the pub- lication of his will by the testator, nor did it in terms provide for the acknowledgment by him of his signature. As has been before shown, acknowledgment of the sig- nature takes the place of signing. The statute of 1 Vic- toria, ch. 26, makes provision for the acknowledgment of the testator's signature, but contains no provision as to publication.*^ Acknowledgment refers to the signature only, wherein lies the principal distinction between it and publication, for the testator can acknowledge his signa- ture without the will being read to the witnesses,*^ with- out their knowing its contents,*^ and even without their being advised that the instrument is in fact a will.** 4oLimbaoh v. Bolin, 169 Ky. Freeman, 71 W. Va. 303, 76 S. E. 204, 183 S. W. 495; In re Williams' 657. Will, 50 Mont. 142, 145 Pac. 957. 44 White v. Trustees of British Where the witnesses do not Museum, 3 Moore & P. 689 ; s. c, 6 know that the instrument was In- Bing. 310; Wright v. Wright, 7 tended as a will and did not see Bing. 457; Ellis v. Smith, 1 Ves. It signed, there Is no publication. Jun. 11; Keigwin v. Keigwin, 3 —In re Van Handlyn's Will, 83 Curt. 607; Faulds v. Jackson, 6 N. J. Eq. 290, 89 Atl. 1010. Notes of Cas. Supp. 1; Palmer v. 41 Statute of 1 Victoria, ch. 26, Owen, 229 111. 115, 82 N. E. 275; §13, reads: "That every will exe- Thomson v. Karm.e, 268 111. 168, cuted in the manner hereinbefore 108 N. E. 1001; Turner v. Cook, required shall be valid without any 36 Ind. 129 ; Herring v. Watson, other publication thereof." 182 Ind. 374, 105 N. E. 900; Scott v. 42 In re Morgan's Estate, 219 Pa. Hawk, 107 Iowa 723, 70 Am. St. 355, 68 Atl. 953; In re Lilllbridge's Rep. 228, 77 N. W. 467; Nixon v. Estate, 221 Pa. St. 5, 128 Am. St. Snellbaker, 155 Iowa, 390, 136 Rep. 723, 69 Atl. 1121. N. W. 223; Steele v. Marble, 221 43 In re Morgan's Estate, 219 Pa. Mass. 485, 109 N. E. 357; Watson St. 355, 68 Atl. 953; Freeman v. v. Pipes, 32 Miss. 451; Combs' Ap- ACKNOWLEDGMENT AND PUBLICATION. 645 §479. Publication, Where Required. There is some confusion as to whether or not, where there is no statute expressly requiring publication, the testator must declare to the witnesses that the instru- ment is his will.*^ Some of the decisions, while not ex- pressly declaring publication to be necessary, yet require it to be proven that the testator knew the testamentary character of the instrument.*** In other instances, while the formality has not been dispensed with, it has been held unnecessary to prove an actual publication, and that it might be inferred from the circumstances of the case,''^ peal, 105 Pa. St. 155; In re LlUi- brldge's Estate, 221 Pa. St. 5, 128 Am. St. Rep. 723, 69 Atl. 1121; His- torical Society v. Kelker, 226 Pa. St. 16, 134 Am. St. Rep. 1010, 74 Atl. 619; Long v. Mickler, 133 Tenn. 51, 179 S. W. 478; In re Claflin's Will, 75 Vt. 19, 58 L. R. A. 261, 52 AO. 1053. Witnesses to a will need not know its contents, need not know the instrument is a will, need not see the testator sign, and need not attest in the presence of each other, provided only that the tes- tator exhibit and acknowledge his signature to them. — Notes v. Doyle, 32 App. D. C. 413. 45 Dickie v. Carter, 42 111. 376. Contra: Allison v. Allison, 46 111. 61, 92 Am. Dec. 237. Jarman on Wills (5th Am. Ed. *80) states that although publica- tion was not required by the Stat- ute of Frauds, yet prior to that time it was considered necessary to complete a testamentary dis- position of property. Reference Is made to Ross v. Ewer, 3 Atk. 156, in which Lord Hardwicke insisted that a devise of a freehold interest in land had to be published in order to be valid. Reference is also made to Moodie v. Reid, 7' Taunt. 361, where Gibbs, C. J., held to the contrary, that publica- tion was not a necessary part of a will either at common law, under the statutes of Henry VIII, or under the Statute of EVauds. The latter ruling is generally adopted. 46 Small V. Small, 4 Greenl. (4 Me.) 220, 16 Am. Dec. 253; Cilley V. Cilley, 34 Me. 162; Worthington V. Klemm, 144 Mass. 167, 10 N. E. 522; Dickie v. Carter, 42 111. 376 Brown v. McAlister, 34 Ind. 375 Beane v. Yerby, 12 Grat. (Va.) 239 Young v. Earner, 27 Grat. (Va.) 96. 47 Rogers V. Diamond, 13 Ark. 474. 646 COMMENTAEIES ON THE LAW OF WILLS. from the formal execution of the instrument,** and the writing, signing and attestation.** In Pennsylvania it has been held sufficient for a testator to declare the instru- ment to be his last act and deed.^" In Mississippi, pub- lication is not necessary,^^ nor in Maryland,®^ Minne- sota,®* lowa,^* or Wisconsin.^® But the general rule is, that in the absence of an express statutory requirement, publication is not necessary to give validity to a will.®" 48 Smith V. Dolby, 4 Har. (Del.) 350. 49 Osbom V. Cook, 11 Gush. (Mass.) 532, 59 Am. Dec. 155; Ho- gan V. Grosvenor, 10 Mete. (Mass.) 54, 43 Am. Dec. 414; TUden v. Tll- den, 13 Gray (Mass.) 110. Contra: Ray v. Walton, 2 A. K. Marsh. (9 Ky.) 71, T4; Swift v. Wiley, 1 B. Mon. (40 Ky.) 114, 118; Flood V. Pragoff, 79 Ky. 607; Swett V. Boardman, 1 Mass. 258, 2 Am. Dec. 16; Adams v. Field, 21 Vt. 256; Dean v. Dean's Heirs, 27 Vt 746. 50 Loy V. Kennedy, 1 Watts. & S. (Pa.) 396; Miller v. McNeill, 35 Pa. St. 217. 78 Am. Dec. 333. 51 Watson V. Pipes, 32 Miss. 451. 52 Higgins V. Carlton, 28 Md. 115, 92 Am. Dec. 666; Btchison v. Etchi- son, 53 Md. 348. 53 In re Allen's Will, 25 Minn. 39. 54 In re Hulse's Will, 52 Iowa 662, 3 N. W. 734. ssMeurer's Will, 44 Wis. 392, 28 Am. Rep. 591. Compare: Webb v. Fleming, 30 Ga. 808, 76 Am. Dec. 675; Huff v. Huff, 41 Ga. 696. 66 Bond V. Seawell, 3 Burr. 1775 Moodie v. Reld, 7 Taunt. 361 Notes V. Doyle, 32 App. D. C. 413 Canada's Appeal, 47 Conn. 450 Palmer v. Owen, 229 111. 115, 82 N. B. 275; Thompson v. Karme, 268 111. 168, 108 N. B. 1001; Tur- ner V. Cook, 36 Ind. 129; Herring V. Watson, 182 Ind. 374, 105 N. E. 900; Scott V. Hawk, 107 Iowa 723, 70 Am. St Rep. 228, 77 N. W. 467; Nixon V. Snellbaker, 155 Iowa 390, 136 N. W. 223; Ray v. Walton, 2 A. K. Marsh. (9 Ky.) 71; Cilley v. Cilley, 34 Me. 162; Steele v. Marble, 221 Mass. 485, 109 N. E. 357; Wat- son V. Pipes, 32 Miss. 451; In re LilUbridge's Estate, 221 Pa. St. 5, 128 Am. St. Rep. 723, 69 Atl. 1121; Historical Society v. Kelker, 226 Pa. St. 16, 134 Am. St. Rep. 1010, 74 Atl. 619; Long v. Mickler, 133 Tenn. 51, 179 S. W. 478; In re Claflin's Will, 75 Vt. 19, 58 L. R. A. 261, 52 Atl. 1053; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21. ACKNOWLEDGMENT AND PUBLICATION. § 480. Proof of Publication, 647 In those states where publication is required by statute, it is essential that the testator, at the time of subscribing or acknowledging the instrument, declare to the witnesses that it is his last will.^'' Where acknowledgment, when the signing is not in the presence of the witnesses, and publication are both required by the statute, as in New York, each must be distinctly and separately proved, neither alone being sufficient to establish the other.®^ Signing in the presence of the witnesses does not stand in lieu of publication, it being required irrespective of the time or manner of signature.^® The purpose of the stat- ute in requiring the testator to declare the writing to be his will, is to make sure that he is aware of its nature. 57 In re Walker's Estate, 110 Cal. 387, 52 Am. St. Rep. 104, 30 L. R. A. 460, 42 Pac. 815; Estate of Sea- men, 146 Cal. 455, 106 Am. St. Rep. 53, 2 Ann. Cas. 726, 80 Pac. 700; Reed v. Watson, 27 Ind. 443 ; Tobin V. Haack (In re Ludwig's Estate), 79 Minn. 101, 81 N. W. 758; In re Noyes' Estate, 40 Mont. 178, 105 Pac. 1013; In re Williams' Will, 50 Mont. 142, 145 Pac. 957; Bioren V. Nesler, 77 N. J. Eq. 560, 78 Atl. 201; Gilbert v. Knox, 52 N. Y. 125; Brinckerhoof v. Remsen, 8 Paige (N. Y.) 488; In re Foley's Will, 76 Misc. Rep. 168, 136 N. Y. Supp. 933; In re Keeffe's Will, 155 App. Div. 575, 141 N. Y. Supp. 5; In re Shaper's Will. 86 Misc. Rep. 577, 149 N. Y. Supp. 468; In re Bryant's Estate, 148 N. Y. Supp. 917; af- firmed, 165 App. Div. 955, 150 N. Y. Supp. 474; Tims v. Tims, 32 Ohio C. C. 506; Richardson v. Orth, 40 Ore. 252, 66 Pac. 925, 69 Pac. 455. 58 Baskin v. Baskin, 48 Barb. (N. Y.) 200; Lewis v. Lewis, 11 N. Y. 220, 230; In re Mackay's Will, 110 N. Y. 611, 6 Am. St. Rep. 409, 1 L. R. A. 491, 18 N. E. 433. Where the weight of evidence seemed to show that the testatrix went to one of the witnesses with a paper so folded that he could only see the attestation clause, and asked him if he would witness his signature, it was held insuffi- cient as a publication. — Porteus v. Holm, 4 Demarest (N. Y.) 14. 69 In re Fusilier's Estate, My- rick's Prob. (Cal.) 40. Compare: Heyer v. Burger, 1 Hoff. Ch. (N. Y.) 1, 648 COMMENTABIES ON THE LAW OF WILLS. and that he be not imposed on and procured to sign a will when he supposes it to be some other instrument.^' The witnesses knowing it to be a will is of no moment, ex- cept that their being informed of the nature of the in- strument by the testator, or in his presence, makes it cer- tain that he knows its character.*^ §481. What Constitutes Publication: Surrounding Facts and Circumstances. It is not necessary that the testator declare in express terms in the presence of the witnesses that the .instru- ment is his will. It is sufficient if he make known to them by his conduct the fact that he so intends and understands it.®^ It is not necessary that either of the words "will" 60 In re Noyes' Estate, 40 Mont. 178, 105 Pac. 1013; Auburn Semi- nary Trustees v. Calhoun, 25 N. Y. 422; Gilbert V. Knox, 52 N. Y. 125. A witness testified that he had been requested by a third person to act as a witness to Mrs. W.'s will. He accompanied the party to the presence of Mrs. W., who had the paper in her hand. She was sitting at a table where there were pens and Ink. She wrote upon the first page of the document, folded the first page back and passed the Instrument to one of the witnesses who signed and passed it on, all signing. Nothing was said by Mrs. W. Neither of the words "will" or "testament" was men- tioned by her or any one in her presence, nor did she request the witnesses to sign other than by passing the paper and pen. The order admitting the will to probate was revoked. — In re Williams' Will, 50 Mont. 142, 145 Pac. 957. But compare Thomas v. English, 180 Mo. App. 358, 167 S. W. 1147, where a decision to the contrary was rendered upon facts very similar. Compare, also, Thompson v. Karme, 268 111. 168, 108 N. B. 1001. See § 405 as to reasons for stat- utory formalities. See § 445 as to purpose of stat- utes requiring witnesses. See §§ 489, 490, as to requesting witnesses to sign. 61 Auburn Seminary Trustees v. Calhoun, 25 N. Y. 422. 62 Seguine v. Seguine, 2 Barb. (N. Y.) 385; Vaughan v. Burford, 3 Bradf. (N. Y.) 78; Gombault v. Public Administrator, 4 Bradf. (N. Y.) 226; Von Hoffman v. Ward, 4 Redf. (N. Y.) 244; Brlnckerboof V. Remsen, 8 Paige (N. Y.) 488; ACKNOWLEDGMENT AND PUBLICATION. 649 or "testament" should be employed. The declaration by the testator that the instrument contains his last inten- tions is sufficient."^ Any communication by which the tes- tator indicates to the witnesses that he intends to give effect to the instrument as his will, whether by word, sign, motion or conduct, is sufficient in law to constitute a pub- Lewis V. Lewis, 11 N. Y. 220; Rob- inson V. Smith, 13 Abb. Pr. (N. Y.) 359; Darling v. Arthur, 22 Hun. (N.Y.) 84; Coffin V. Coffin, 23 N. Y. 9, 80 Am. Dec. 235; Lane v. Lane, 95 N. Y. 494. In re Silva's Estate, 169 Cal. 116, 145 Pac. 1015, the court says: "It is not necessary that the testator should have spoken words declar- ing the document to be his will, or that he should expressly request the witnesses to sign it as such. It is sufficient if this declaration and request are unmistakably indi- cated to the persons signing as witnesses by the testator's con- duct and actions, although there is no declaration in words to that effect." Where the testatrix asked a wit- ness, "Will you be a witness to my will?" and the witness signed In response, it was held a good publication. — In re Balmforth's Will, 60 Misc. Rep. 492, 113 N. Y. Supp. 934. The testator some time before having witnessed the will of one of the persons now called as a witness to his own will, said: "I should like you to sign this paper. This is the same kind of a paper that you asked me to sign for you." Held sufficient. — In re Mar- ley's (or Morley) Will, 140 App. Div. 823, 125 N. Y. Supp. 886. In New York It seems well set- tled that where a person presents to the required number of other persons a paper previously drawn and subscribed by him personally, with his subscription plainly with- in their sight, and in substance and effect tells them that the paper is his will and asks them to sign as witnesses thereto, and such persons sign as such witnesses in his presence and in the pres- ence of each other, this amounts to a sufficient publication of the will and an acknowledgment of the signature. — In re Bassett's Will, 84 Misc. Rep. 656, 146 N. Y. Supp. 842, citing Raskin v. Baskin, 36 N. Y. 416; Matter of Laudy, 161 N. Y. 429, 55 N. E. 914; In re Mar- ley's (or Morley's) Will, 140 App. Div. 823, 125 N. Y. Supp. 886; Matter of Akers' Will, 74 App. Div. 461, 77 N. Y. Supp. 643, af- firmed, 173 N. Y. 620, 66 N. E. 1103. .63 Succession of Morales, 16 La. Ann. 267; Buntin v. Johnson, 28 La. Ann. 796. 650 COMMENTARIES ON THE LAW OF WILLS. lication.** It is sufficient if from the attendant facts and circumstances it satisfactorily appear that all the wit- nesses knew the document was the will of the testator,*"* and that the testator understood the nature of the in- strument.** A previous request to another to act as a witness to his will may be so connected with its execu- tion as to remedy any apparent defects as to publication at the time the will was signed and witnessed.*'' 64 In re Sllva's Estate, 169 Cal. 116, 145 Pac. 1015; In re Cullberg-s Estate, 169 Cal. 365, 146 Pac. 888; In re Aypr's Estate, 84 Neb. 16, 120 N. W. 491; Spiers v. Spiers (In re Spiers' Estate), 99 Neb. 853, L. R. A. 1916B, 692, 157 N. W. 1016; In re De Hart's Will, 67 Misc. Rep. 13, 122 N. Y. Supp. 220; In re Marley's (or Morley's) Will, 140 App. Div. 823, 125 N. Y. Supp. 886; In re Bas- sett's Will, 84 Misc. Rep. 656, 146 N. Y. Supp. 842; In re Claflin's Will, 73 Vt. 129, 87 Am. St. Rep. 693, 50 Atl. 815 Where the testator acknowl- edges and signifies his adoption and approval of a declaration, made In the presence and hearing of the subscribing witnesses, to the effect that the instrument about to be executed was a codicil to his will, It is a sulBcient publi- cation. — In re Gahagan's Estate, 82 N. J. Eq. 601, 89 Atl. 771. 65 Rogers V. Diamond, 13 Ark. 474; Deupree v. Deupree, 45 Ga. 415; Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664; Estate of Miller, 37 Mont. 545, 97 Pac. 935; Ludlow V. Ludlow, 36 N. J. Eq. 597; Ayres V. Ayres, 43 N. J. Eq. 565. 12 Atl. 621; In re Balmforth's Will, 133 App. Div. 521, 117 N. Y. Supp. 1065; In re Hunt's Will, 110 N. Y. 278, 18 N. E. 106; Ames v. Ames (In re Ames' Will), 40 Ore. 495, 67 Pac. 737; Denny v. Pinney's Heirs, 60 Vt. 524, 12 Atl. 108. And see: Hunt v. Mootrie, 3 Bradf. (N. Y.) 322; s. c, Moultrie V. Hunt, 26 Barb. (N. Y.) 252; s. c, reversed in Moultrie v. Hunt, 23 N. Y. 394; Lewis v. Lewis, 11 N. Y. 220; Nipper v. Groesbeck, 22 Barb. (N. Y.) 670. The witness may infer from any sufficiently suggestive acts on the part of the testator the fact that he means the instrument to be his will.— In re De Hart's Will, 67 Misc. Rep. 13, 122 N. Y. Supp. 220; In re Marley's (or Morley) Will, 140 App. Div. 823, 125 N. Y. Supp. 886. If the witnesses did not kni^w that the Instrument which they witnessed was intended as a will, there was no publication. — In re Van Handlyn's Will, 83 N. J. Eq. 290, 89 Atl. 1010. 66 Auburn Seminary Trustees v. Calhoun, 25 N. Y. 422. 67 In re Do Hart's Will, 67 Misc. ACKNOWLEDGMENT AND PUBLICATION. 651 §482. The Same Subject: Acquiescence or Approval. The publication may be made either wholly by the tes- tator, or by the scrivener, or other agent, asking ques- tions, or the testator expressing his assent by words or signs which plainly indicate his understanding of and acquiescence in the publication;^^ as where the question was put in writing to a deaf testator and he answered by a nod.*® A will may be duly executed and attested, the testamentary character of the instrument may be de- clared, and the witnesses be asked to sign as such, through the medium of an interpreter translating between the tes- tator and the witnesses.'"' In another case, after the tes- tator and the witnesses at his request had signed their names, the scrivener asked the testator if the paper was his will, to which he replied "Yes," in the presence of the witnesses, it was held that he had sufficiently de- Rep. 13, 122 N. Y. Supp. 220, the and the significant fact that after testatrix 'phoned a man to come signing the will she handed tho to her residence and to bring some pen to one of the witnesses, and one with him, which he did, taking he immediately signed the will as his son. On their arrival the tes- e witness and then handed the pen tatrix went to a bureau in the to the other witness, the due pub- room and brought forth the will, lication Is established." saying she had written it herself 68 Tunison v. Tunison, 4 Bradf. and wanted them to sign as wit- (N. Y.) 138. nesses. She made some further 69 In re Davis, 2 Rob. Ecc. 337; remarks about having written it Allison v. Allison, 46 111. 61, 92 herself. She then signed her Am. Dec. 237; Van Hooser v. Van name and handed the pen to the Hooser, 1 Redf. (N. Y.) 365; Gom- elder of the two witnesses, who bault v. Public Administrator, 4 wrote his name, in turn handing Bradf. (N. Y.) 226; Coffin v. Coffin, the pen to his son, who did like- 23 N. Y. 9, 80 Am. Dec. 235. wise. The court says: "When we 7 o Proctor v. Harrison, 34 Okla. consider the conversation the tes- 181, 125 Pac. 489; Bell v. Davis, tatrix had with the witnesses at (Okla.) 155 Pac. 1132. and prior to her signing the will 652 COMMENTARIES ON THE LAW OF WILLS. clared to them that it was his will.''^ If the testator is rational, and the will is read to and signed by him in the presence of the witnesses and they, with his intelli- gent acquiescence, are requested by some other person to attest and subscribe the same, which they do, it is suffi- cient.''^ It is often a question as to what constitutes acqui- escence or approval by the testator. Where the scrivener made the statenjent to the witnesses, in the presence of the testator, "This is Mr. 's will and he wants you to sign it, ' ' it does not constitute a publication unless the 71 Johnson's Estate, 57 Cal. 529; Harrington v. Stees, 82 111. 50, 25 Am. Rep. 290; Reeve v. Crosby, 3 Redf. (N. Y.) 74; Tunison v. Tuni- son, 4 Bradf. (N. Y.) 138. Compare: Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235; Tarrant V. Ware, 25 N. Y. 425, note. Contra: McCaleb v. Douglass, 16 La. Ann. 327. The question should be explicit, - for the provision that the testator shall declare the instrument to be his will is not complied with by an affirmative reply to a witness, asking if he acknowledge it to be his "work." — Larabee v. Bal- lard, 1 Demarest (N. Y.) 496. Where one said to his brother and niece, "I want you to witness my will," and, taking a document from his pocket, signed it; the brother and niece signed under the usual attestation clause; and the testator, replacing the paper in his pocket, carried it away, the court held this to be a sufficient publica- tion. — Darling v. Arthur, 22 Hun (N. Y.) 84. Compare: Van Hooser v. Van Hooser, 1 Redf. (N. Y.) 365. So, also, where a testator after reading the will remarked in the presence of the witnesses, "Evidently I give all I possess to my mother," and the attestation clause which recited that the tes- tator declared to the witnesses that it was his testament was read to and by the testator, and he then requested the witnesses to sign as such, it was a sufficient publication. — Von Hoffman v. Ward, 4 Redf. (N. Y.) 244. 72 In re Miller's Estate, 37 Mont. 545, 97 Pac. 935; In re Williams' Will, 50 Mont. 142, 145 Pac. 957; Elkinton v. Brick, 44 N. -J. Eq. 154, 1 L. R. A. 161, 15 Atl. 391; In re Beckett, 103 N. Y. 167, 8 N. E. 506. It is not necessary for a tes- tator to formally declare that the instrument is his will, where it shows on its face its testamentary character and Is read in the pres- ence of the witnesses. — Murphy v. Clancy, 177 Mo. App. 429, 163 S. W. 915. ACKNOWLEDGMENT AND PUBLICATION. 653 testator thereupon says or does something to confirm the statement. ''^ Statements are often made in various decisions that the testator must declare or inform the at- testing witnesses that the instrument is his will, other- wise the instrument is invalid;'^* but as before stated, such information need not be by words.'^^ It has been well stated that * * the legislature only meant that there should be some communication to the witnesses indicating that the testator intended to give effect to the paper as his will. Any communication of this idea, or to this effect, will meet the object of the statute."'^* It is not neces- sary that the testator speak a word.'"^ But the safer rule appears to be that there should be some word or sign 73 Biorea t. Nesler, 76 N. J. Eq. 573, 79 Atl. 425. Compare: In re Ayers' Estate, 84 Neb. 16, 120 N. W. 491, where the testator, after the instrument was signed and witnessed, directed the scrivener to put it in an enve- lope addressed to the county judge, and it was afterwards found in the judge's custody, the publica- tion was held sufficient. 74 The testator must inform the attesting witness that the instru- ment is his will, otherwise the at- testation goes for nothing. — In re Bryant's Estate, 148 N. Y. Supp. 917; affirmed, 165 App. Div. 955, 150 N. Y. Supp. 474. 75 In re De tlart's Will, 67 Misc. Rep. 13, 122 N. Y. Supp. 220. 76 Remsen v. Brinckerhoff, 26 Wend. (N. Y.) 325, 37 Am. Dec. 251, followed in Re Balmforth's Will, 133 App. Div. 521, 117 N. Y. Supp. 1065. 77 Thomas v. English, 180 Mo. App. 358, 167 S. W. 1147. Compare: In re Williams' Will, 50 Mont. 142, 145 Pac. 957. "The paper contained an attes- tation clause in the usual form, declaring that the foregoing instru- ment was, on its date, by (the testator) signed and sealed and published as, and declared to be her last will and testament." The physician present then read aloud the entire instrument in the pres- ence of the testatrix, one called in as a witness, and the person who had the will prepared. This last mentioned person then indicated to the testator where to sign and she signed accordingly; he then asked the witness and the physi- cian to sign under the attestation clause, which they did. In the language of the court, "During the entire proceeding not a word was spoken" by the testatrix. The ex- C54 COMMENTARIES ON THE LAW OF WILLS. by the testator, or some one acting for him, in Ms pres- ence and hearing, indicating that the instrument is his will.^« §483. The Same Subject: Reading Fnll Attestation Clause to Witnesses. A statement in the attestation clause that the instru- ment is a will, if not read to the witnesses, is not a suffi- cient declaration or publication of the will.''* But reading the attestation clause to the witnesses and the testator's assent to the question whether it is his last will, has been held a sufficient publication.*" And if the attestation clause is read to the testator in the presence of the wit- nesses and he sign and request them to sign, it is a suffi- ecutlon was held valid. The court further said: "It has been gen- erally held that under statutes like ours, the declarations by the testator that the document Is his will, and his request for its attes- tation, need not be stated in ex- act terms, but may be implied from his conduct and the attend- ant circumstances." — In re Cull- berg's Estate, 169 Cal. 365, 146 Pac. 888. The testator signed in the pres- ence of the witnesses, then one of the witnesses asked the testator if he wanted him to sign in at- testation and the testator bowed his head, whereupon that witness signed and the other witness did likewise. It was held sufiScient. — In re Kindberg's Will, 141 App. Div. 188, 126 N. T. Supp. S3. See, also, In re Beckett, 35 Hun (N. Y.) 447. 78 Ludlow V. Ludlow, 36 N. J. Eq. 597; Smith v. Smith, 2 Lans. (N. Y.) 266; Peck v. Gary, 27 N. Y. 9, 84 Am. Dec. 220; Gilbert T. Knox, 52 N. Y. 125. 79Remsen v. Brinckerhoff, 26 Wend. (N. Y.) 325, 37 Am. Dec. 251. See, also, Brinckerhoff v. Rem- sen, 8 Paige (N. Y.) 488; Brown V. De Selding, 4 Sandf. (N. Y.) 10; Burritt v. Silliman, 16 Barb. (N. Y.) 198; Baskin v. Baskin, 48 Barb. (N. Y.) 200; Abbey v. Christy, 49 Barb. (N. Y.) 276. soHiggins v. Carlton, 28 Md. 115, 92 Am. Dec. 666; Thompson V. Stevens, 62 N. Y. 634. Compare: McCaleb v. Douglass, 16 La. Ann. 327. ACKNOWLEDGMENT AND PUBLICATION. 655 cient publication.®* And if a paper testamentary in char- acter but not in form be read aloud in the presence of witnesses who are then requested to attest the signature of the maker of the instrument, it is a sufficient publica- tion of the writing as a will.*^ 81 In re Wylie's Will, 162 App. S2 Carle v. trnderhill, 3 Bradf. DlT. 574, 145 N. Y. Supp. 133. (N. Y.) 101. CHAPTER XIX. ATTESTATION AND SUBSCRIPTION BY WITNESSES. § 484. Signing in presence of witnesses : Statute of Frauds. § 485. Signing or acknowledging signature before witnesses sep- arately: Early rule. § 486. Presence of witnesses with reference to signing, acknowl- edging, and publishing. § 487. The same subject : Illustrations. § 488. "Witnesses "present at the same time." § 489. Requesting witnesses to sign as such : Statutory regula- tions. § 490. What constitutes requesting witnesses to sign. § 491. When witnesses are summoned by an interested party. § 492. Witnesses signing or subscribing their names : Signing wrong name. § 493. Desirable that witnesses can write their own signatures, also to insert residences. § 494. Witness signing by mark, or initials. § 495. Name of witness written by another : Conflict of authority. § 496. Witnesses should sign after execution by testator has been completed: Strict rule. § 497. The same subject : Liberal rule. § 498. Position of signatures of witnesses. § 499. Witnesses must sign their names animo testandi. § 500. Witnesses must sign "in the presence of the testator." § 501. What constitutes "in the presence of the testator." § 502. Witnesses signing in a different room. § 503. Blind testator: What constitutes "in his presence." § 504. Witnesses signing in the presence of each other. § 505. The same subject : When demanded by statute. § 506. Attestation clause not essential to the validity of the will. (656) ATTESTATION AND SDBSfiBIPTION. 657 § 507. Attestation clause is prima facie evidence of facts recited therein. § 508. Will may be established against testimony of attesting witnesses. § 509. "Witnesses dead, out of state, or can not remember : Value of attestation clause. § 510. The same subject: Although testator signed by mark. § 511. Will regular on its face presumed to have been duly exe- cuted. § 512. The same subject : Conflicting view. § 513. Due execution a question of fact. § 484. Signing in Presence of Witnesses : Statute of Frauds. The Statute of Frauds made no provision for the tes- tator signing the vsdll in the presence of vdtnesses. The requirement was that it should be signed by the testator or by some other person in his presence and by his ex- press direction, with a further requirement that it should be attested and subscribed in the presence of the testator by the witnesses.^ Soon after the passage of the act the question arose as to whether or not the testator should actually sign, or cause to be signed, his will in the pres- ence of the witnesses; and it became the settled rule in England that the statute did not require the witnesses to actually see the writing of the signature by the tes- tator or by some one else at his express direction, but that it was sufficient if the vdll theretofore had been duly 1 statute of 29 Charles II, ch. 3, other person in his presence and § 5 (Statute of iFrauds), as to hy his express direction, and shall devises of lands and tenements, be attested and subscribed in the provided that they should be ex- presence of said devisor by three ecuted as follows: "Shall be in or four credible witnesses, or else writing, signed by the party so they shall be utterly void and of devising the same, or by some none effect." I Com. on Wills— 42 658 COMMENTAEIES ON THE LAW OF WILLS. signed prior to the acknowledgment and publication of the will in the presence of each or all of the witnesses.^ § 485. Sigfning or Acknowledging Signature Before Witnesses Separately: Early Rule. The signing or subscription of the testator's name by some third person at his request or the acknowledgment of the signature by the testator must be in the presence of the witnesses ; for instance, it is not sufficient for the testator merely to show and acknowledge his signature to one of the witnesses, the signing not having been in the presence of the witnesses.* The question arose whether one act, such as the signing, could take place in the pres- ence of one witness, and thereafter the signature be ac- knowledged to the other witnesses. It was early deter- mined in England, under the Statute of Frauds, that a will of real estate attested by three witnesses who had at 2 Lemayne v. Stanley, 3 Levinz the act of parliament (Statute of 1; Anon., Skin. 227; Stonehouse v. Frauds) it seems upon the pen- Evelyn, 3 P. Wms. 253; Gryle v. ning of that clause, that If the Gryle, 2 Atk. 177; Ellis v. Smith, testator having signed the will, 1 Ves. Jun. 12; White v. Trustees did before those witnesses declare of British Museum, 6 Bing. 310, 3 and acknowledge he had done so, Moore & P. 689; Westbeech v. and that that was his hand, that Kennedy, 1 Ves. & Bea. 363. might be sufficient within that "If it was in the case of a note, clause; for as to the subscribing or declaration of trust, or any that makes no difference in the other instrument not requiring the case; that further circumstance solemnities of a deed, but bare is required by the statute to make signing, if that instrument is at- it necessary that they should cer- tested by witnesses, proving they tify their attestation all of them were called in, and that he took In the presence of the testator; that instrument, and said, that therefore is subscription men- was his hand, that would be suffl- tioned." — Grayson v. Atkinson, 2 cient attestation of signing by Ves. Sen. 454. him. That is a rule of evidence; sin re Keefte's Will, 155 App. considering therefore the words of Div. 575, 141 N. Y. Supp. 5. ATTESTATION AND SUBSCRIPTION. 659 separate times subscribed their names in the presence of the testator and at his request was valid, although the witnesses were never present at the same time.* It is doubtful whether such was in conformity with the inten- tion of the framers of the provisions of the Statute of Frauds relative to the execution of wills of real estate, but such rule is in conformity with the letter of the stat- ute which only required that wills should be signed by the testator, but not that such signing should take place in the presence of the attesting witnesses. Nor did the statute, in terms, require the witnesses to attest the will at the same time and in the presence of each other, but only that the will should be attested by three or more credible witnesses who should subscribe the same in the presence of the testator.® § 486. Presence of Witnesses With Reference to Signing, Ac- knowledging, and Publishing. The actual signing, as has been shown, need not be in the presence of the witnesses if the signature be duly ac- knowledged by the testator.® The "presence of the wit- nesses" has reference alike to signing by the testator, by some one else at his request, or to acknowledgment of his signature by the testator.'' Publication, however, stands by itself, and, when required by statute, must be made 4 Anon., 2 Chan. Cas. 109; Cook Will, 155 App. Div. 575, 141 N. Y. V. Parsons, Free. In Ch. 184. Supp. 5; In re Roe's Will, 82 Misc. 5 Grayson v. Atkinson, 2 Ves. Rep. 565, 143 N. Y. Supp. 999; Sen. 454; Gryle v. Gryle, 2 Atk. In re Nussbaum's Estate, 144 176; Jauncey v. Thome, 2 Barb. N. Y. Supp. 443; Table Rock Lum- Ch. (N. Y.) 40, 45 Am. Dec. 424. ber Co. v. Branch, 158 N. C. 251, 6 See ch. 18. 73 S. E. 164; Watson v. Hinson, 7 Herring v. Watson, 181 Ind. 162 N. C. 72, Ann. Cas. 1915A, 931, 374, 105 N. B. 900; In re Keef^e's 77 S. B. 1089. 660 COMMENTARIES ON THE LAW OP WILLS. to all the witnesses. Signing or acknowledgment to one witness does not aid publication to the others, there being no publication to all.* §487. The Same Subject: Illustrations. Where the statute requires that the testator either sign or acknowledge the signature, signed by him or by some one at his request, in the presence of the attesting wit- nesses, and the testator sign his will in the presence of one witness, later acknowledging his signature to a sec- ond, and still later to a third witness, the signing and acknowledgment of the signature are sufficient to satisfy the statutory requirements as to signing and acknowledg- ment.® It has been held that although the testator may not have signed in the presence of all the witnesses at once, and the witnesses did not, in fact, write their names at one time, yet if the testator acknowledged his signa- ture and declared it to be his will to all of them at once, and those who had before written their names as wit- nesses then reaffirmed their signatures, it was an effective execution and attestation.^" Where one of the witnesses was behind the testator, assisting in holding him up, and did not see him make his mark, but was in a position where he might have seen, it was decided that his attes- tation was not thereby invalidated.^^ In New York, where 8 Seymour v. Van Wyck, 6 N. Y. shall, 11 Ky. Law Rep. 870, 13 120. S. W. 447.; Hoysradt v. Kingman, Compare: Barry v. Brown, 2 22 N. Y. 372; Matter of Potter's Demarest (N. Y.) 309; Seguine Will, 12 N. Y. Supp. 105, 33 N. Y. V. Seguine, 2 Barb. (N. Y.) 385; St. Rep. 936. Robinson v. Smith, 13 Abb. Pr. lo Moale v. Cutting, 59 Md. 510. (N. Y.) 359. 11 Btchlson v. Etchison, 53 Md. 9 Webb V. Fleming, 30 Ga. 808, 348. 76 Am. Dec. 675; Grubbs v. Mar- ATTESTATION AND SUBSCRIPTION. 661 the statute requires the testator to subscribe his will "in the presence of each of the attesting witnesses, ' ' each wit- ness must see the testator sign, or must during the act of signing, have his attention directed to it.^^ So in Eng- land it was held that as the witnesses had seen the tes- tatrix write what the court presumed to be her signa- ture, it was sufficient, although they did not see the name and she did not acknowledge it as her signature.^^ § 488. Witnesses ' ' Present at the Same Time. ' ' The statute of 1 Victoria, ch. 26, sec. 9, added a require- ment not found in the Statute of Frauds,^* that signing or acknowledgment of the signature by the testator should be in the presence of two or more witnesses "present at the same time."^® This provision is found in the statutes of some of the states.^® Under the statute of Virginia, which contains the same provision, the testator signing and acknowledging his signature in the presence of one witness and subsequently acknowledging his signature to the other witness, the first witness being present, was held sufficient. The court said in substance that two wit- nesses may be. in the presence of the testator, yet not in the presence of each other, and that to demand both circumstances would impose a double duty on the court 12 In re Gardiner's Will, 3 De- of Cas. 45; s. c, 7 Jur. 205; Cook marest (N. Y.) 98. v. Parsons, Free. Ch. 184; Dormer 13 Smltli V. Smith, L. R. 1 v. Thurland, 2 P. Wms. 506; P. & D. 143. Smith v. Smith, L. R. 1 P. & D. 14 Smith V. Codron, cited in 2 143. Ves. Sen. 455; Ellis v. Smith, 1 Compare: Hlndmarsh v. Charl- Ves. Jun. 11. ton, 8 H. L. Cas. 160; s. c, 1 Sw. 15 In re Allen, 2 Curt. 331; In re & Tr. 433. Simmonds, 3 Curt. 70; Moore v. 16 See synopsis of statutes, Ap. King, 3 Curt. 243; s. c, 2 Notes pendix, this volume. 662 COMMENTARIES ON THE LAW OP WILLS. of deciding double relations, would complicate proofs, and would endanger the testator's intentions." § 489. Requesting Witnesses to Sign as Such: Statutory Regu- lations. The Statute of Frauds (29 Charles II, ch. 3) and the Statute of Wills (1 Victoria, ch. 26) provide only that the will be attested and subscribed by witnesses, and contain no requirement that the testator must request the wit- nesses to sign as such. This formality is likewise omitted from the statutes of some of the states in the Union.^* In others it is required that the witnesses must sign as such at the request of the testator. Where the statute contains such a provision the will is invalid unless there be such request.^* The request to the witnesses to sign as such may be made before the actual signature of the testator, or afterward ; but it must be all part of the same transaction.^*' 17 Green v. Grain, 12 Grat. (Va.) any publication of the will as 252. See, also, Parramore v. Tay- such. — Steele v. Marble, 221 Mass. lor, 11 Grat. (Va.) 220; Beane v. 485, 109 N. B. 357. Yerby, 12 Grat. (Va.) 239. See, also, Thompson v. Thomp- Compare: In re Emart's Estate,, son, 49 Neb. 157, 68 N. W. 372; (Gal.) 165 Pac. 707. in re Meuer, 44 Wis. 392, 28 Am. 18 Under the Colorado statute Rep. 591. it Is not required that the wit- See synopsis of statutes, Ap- nesses be requested by the testar pendix, this volume, tor to act as such. — In re Burn- 19 Brengle v. Tucker, 114 Md. ham's Will, 24 Golo. App. 131, 134 597, 80 Atl. 224; Avaro v. Avaro, Pac. 254. 235 Mo. 424, 138 S. W. 500; In re Under the Massachusetts law It Benjamin's Will, 136 N. Y. Supp. Is sufficient if the testator sub- 1070; In re Roe's Will, 82 Misc. scribes in the presence of the wit- Rep. 565, 143 N. Y. Supp. 999. nesses, without any formal re- 20 In re Gamber's Will, 53 Misc. quest that they act as such, or Rep. 168, 104 N. Y. Supp. 476. ATTESTATION AND SUBSCEIPTION. 663 § 490. What Constitutes Requesting Witnesses to Sign. Where the statute requires that the testator request the witnesses to subscribe his will as such, it is not necessary that such request be formally expressed in words.*^ Any act or sign will be sufficient,^^ and it may be made either by the testator himself or by some one acting for him in his presence and hearing.^* The request may likewise be 21 In re Johnson's Estate, 152 Cal. 778. 93 Pac. 1015; In re SIl- va's Estate, 169 Cal. 116, 145 Pac. 1015; Craig v. Trotter, 252 111. 228, 96 N. E. 1003; Brengle v. Tucker, 114 Md. 597, 80 Atl. 224; Conrades V. Heller, 119 Md. 448, 87 Atl. 28; Steele v. Marble, 221 Mass. 485, 109 N. E. 357; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500; Mur- phy V. Clancy, 177 Mo. App. 429, 163 S. W. 915; Thomas v. English, 180 Mo. App. 358, 167 S. W. 1147; In re Miller's Estate, 37 Mont. 545, 97 Pac. 935; In re Marley's (or Morley) Will, 140 App. Div. 823, 125 N. Y. Supp. 886; In re Cherry's Will, 164 N. C. 363, 79 S. B. 288; In re Lillibridge's Es- tate, 221 Pa. St. 5, 128 Am. St Rep. 723, 69 AU. 1121. "The statute requires that the testator shall request the subscrib- ing witnesses to attest his will; but it is not necessary that he should in terms ask them to sign, as other facts may constitute a legal request." — Brengle v. Tucker, 114 Md. 597, 80 Atl. 224. 22 In re Davles, 2 Rob. Bcc. 337; Rogers v. Diamond, 13 Ark. 474; Crittenden's Estate, Myrick's Prob. (Cal.) 50; Allison v. Allison, 46 111. 61, 92 Am. Dec. 237; Craig v. Trotter, 252 111. 228, 96 N. B. 1003; Hlggins V. Carlton, 28 Md. 115, 117, 92 Am. Dec. 666; Conrades v. Hel- ler, 119 Md. 448, 87 AU. 28; In re Allen's Will, 25 Minn. 39; Oden- waelder v. Schorr, 8 Mo. App. 458 ; Thomas v. Ehiglish, 180 Mo. App. 358, 167 S. W. 1147; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500; Brown v. De Selding, 4 Sand. (N. Y.) 10; Seguine v. Seguine, 2 Barb. (N. Y.) 385; Doe v. Roe, 2 Barb. (N. Y.) 200; Nelson v. Mc- Giftert, 3 Barb. Ch. (N. Y.) 158, 49 Am. Dec. 170; Hutchlngs v. Cochrane, 2 Bradf. (N. Y.) 295; Coffin V. Coffin, 23 N. Y. 9, 80 Am. Dec. 235; In re Cherry's Will, 164 N. C. 363, 7^ S. E. 288. 23 Inglesant v. Inglesant, L. R. 3 P. & D. 172; Bundy v. McKnight, 48 Ind. 502; Dyer v. Dyer, 87 Ind. 13; Btchison v. Btchison, 53 Md. 348; Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220; Gilbert v. Knox, 52 N. Y. 125; Brown v. Clark, 77 N. Y. 369; In re Herring's Will, 152 N. C. 258, 67 S. E. 570; Cheat- ham V. Hatcher, 30 Grat. (Va.) 56, 664 COMMENTARIES ON THE LAW OF WILLS. implied from the surrounding facts and circumstances.^* Where witnesses, in the presence of the testator, are re- quested to act as such by a third person, it is a sufficient acquiescence on the part of the testator if he is able to object and does not.^^ Any word or act which makes it certain that the instrument is a will and that the testator desires the witnesses to sign it as such, is sufficient.^* Where the request to the witnesses to sign is made by some one other than the testator; it must clearly appear that it was done in accord with the testator 's desire, and not secretly and fraudulently.^^ § 491. When Witnesses Are Summoned by an Interested Party. A legatee under the will may summon the witnesses, provided the testator in some way requests them, when they appear, to act and sign as such.** Should the sum- mons be by one charged with unduly influencing the tes- 32 Am. Rep. 650; Meurer's Will, 27 Heath v. Cole, 15 Hun (N. Y.) 44 Wis. 392, 28 Am. Rep. 591. 100. 24 Freeman v. Freeman, 71 A subscribing witness testified W. Va. 303, 76 S. B. 657. that the appellee said to his Where a testator sends for per- brother (testator), "I brought Mr. sons to witness his will, and, on Menne and Bobbie here to witness these persons entering the rooms, your will," and that the testator shakes the hand of one and re- said "All right." It was held error marks that he had witnessed his to refuse, on cross-examination, first will and he would have to an impeaching question as to the call on him again, it was held to witness having, in a conversation, amount to a request. — Lindsey v. stated that the testator did not Stephens, 229 Mo. 600, 129 S. W. assent by word or motion to the 665. proposition as to these persons 25 In re Silva's Estate, 169 Cal. signing in attestation. — Craig v. 116, 145 Pac. 1015. Trotter, 252 111. 228, 96 N. E. 1003. 26 Conrades v. Heller, 119 Md. 28 In re Hermann's Will, 87 448, 87 Atl. 28; In re Cherry's Misc. Rep. 476, 150 N. Y. Supp. Will, 164 N. C. 363, 79 S. E. 288. 118. ATTESTATION AND SUBSCRIPTION. 665 tator in the making of Ms will, although that fact is in itself a significant circumstance in connection with the question of undue influence, the will is not thereby invali- dated if the testator ultimately requests the witnesses to sign their names as such at the end of the will.^"* The re- quest to sign need not be made to both witnesses ; to one in the presence of the other is sufficient.^" The omission to state in the attestation clause that the testator re- quested the witnesses to sign as such is immaterial.^^ § 492. Witnesses Signing or Subscribing Their Names : Signing Wrong Name. In England and in practically all of the states of the United States, attesting witnesses to a will must sign or subscribe their names to the instrument. In Pennsylvania the requirement is that a will generally must be proved by the oath or afiirmation of two or more competent wit- nesses, but where a devise or bequest is made to charity, the will must be attested by two credible and disinterested persons.^^ The requirement as to signing or subscribing by the witnesses is liberally construed, and whatever may be written by a witness as representing his name and for the purpose of his identification will be accepted by the court as equivalent to his signature. A description of him- self written by a witness has been considered a compli- ance with the law.** It will not invalidate a will for a wit- 29 In re Hermann's Will, 87 valid. — Brady v. McCrosson, 5 Misc. Rep. 476, 150 N. Y. Supp. Redf. (N. Y.) 431. 118. 31 Crittenden's Estate, Myrick's 30 Coffin V. Coffin, 23 N. Y. 9, 80 Prob. (Gal.) 50. Am. Dec. 235. 32 Pennsylvania Laws, Purdon's A request to sign as a witness, Digest, 13th ed., §§ 5120, 5129. made on the day prior to the exe- 33 Goods of Sperling, 33 L. J. eution of the will, has been held Prob. 25; s. c, 3 Sw. & Tr. 272, 666 COMMENTARIES ON THE LAW OP WILLS. ness to write a name other than his own, provided he intended it to represent his name.** But there must be no intention to cause it to appear that another had attested the instrument, else it is void; as where one of the wit- nesses subscribed the name of his father, it was held not a proper attestation. When the wrong name is not signed by mistake, one name can not be taken as a substitute for another.*^ §493. Desirable That Witnesses Can Write Their Own Sig- natures, Also to Insert Residences. It is desirable that in the selection of witnesses to a will only those should be chosen who can write their sig- natures with their own hands. It is, however, merely a matter of convenience in order to more easily identify the witnesses, especially in the case of the death of one or more of them, but it is not an essential requirement to the act of execution.*® The residences of the witnesses should be written after their signatures for the purpose of identification, but this is not necessary unless required by statute.*'^ where the words written were S5 Ex parte Leroy, 3 Bradf. "servant of Mr. Sperling." (N. Y.) 227. 34 In re Olliver, 2 Spinks 57; See, also, In re Leverington, 11 In re Ashmore, 3 Curt. 756; Har- Prob. Div. 80; s. c, 55 Law J. risen v. Elvin, 3 Q. B. 117; Baker Prob. 62; Pryor v. Pryor, 29 L. J. V. Denning, 8 Adol. & E. 94; Wi- Prob. 114. gan V. Rowland, 11 Hare 157, 21 36 In re Pope, 139 N. C. 484, 111 Eng..L, & Eq. 132; Doe v. Davis, Am. St. Rep. 813, 4 Ann. Cas. 635, 11 Jur. 182. 7 L. R. A. (N. S.) 1193, 52 S. E. A will should not be denied pro- 235. bate because an attesting witness 37 In re Sandmann's Will, has, by mistake merely, signed (N. J.) 68 Atl. 754. the testator's name Instead of his. The statute of New York, Con- o-wn.— In re Jacobs' Will, 73 Misc. sol. Laws, 1909, ch. 18, art. 1, § 22, Rep. 162, 132 N. Y. Supp. 481. requires witnesses to write their ATTESTATION AND SUBSCBIPTION. 667 § 494. Witness Signing by Mark, or Initials. Under the Statute of Frauds, the attesting and signing by witnesses was held valid where only one witness sub- scribed his name, the other two merely making their marks,^* and it is now the well established rule that a wit- ness may make his signature by mark.^* Proof, how- ever, of it being the mark of the witness is required.*" So the initials of the witnesses may take the place of their full names, and if put in the usual place of the attesting signatures will be taken as a valid signing of the will ;*^ but initials written in the margin, apparently for the pur- pose of identifying alterations, can not be accepted as an respective places of residence op- posite their names. Montana Revised Codes, 1907, § 4728, states a witness must write his name and place of residence, hut a violation of the section does not impair the validity of the will. California Civ. Code, § 1278, has the same provision as Montana. 38 Harrison v. Harrison, 8 Ves. Jun. 185. 39 Warren v. Postlethwaite, 9 Jur. 721; White v. British Mu- seum Trustees, 6 Bing. 310; Wright V. Wright, 7 Bing. 457; In re Maddock, L. R. 3 P. & D. 169; In re Ashmore, 3 Curt. 756; In re Amiss, 2 Roh. Ecc. 116; s. c, 7 Notes of Cas. 274; Harrison v. Harrison, 8 Ves. Jun. 185; Addy V. Grix, 8 Ves. Jun. 504; Doe ex dem. Davies v. Davies, 9 Q. B. 648; Small v. Small, 4 Greenl. (4 Me.) 220, 16 Am. Dec. 253; Osborn V. Cook, 11 Cush. (Mass.) 532, 59 Am. Dec. 155; Lord v. Lord, 58 N. H. 7, 42 Am. Rep. 565; Den V. Mltton, 12 N. J. Law (7 Halst.) 70; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144, 4 Am. Dec. 330; Pridgen v. Pridgen's Heirs, 35 N. C. 259; Adams v. Chaplin, 1 Hill's Eq. (S. C.) 265, 266; Prid- gen V. Pridgen's Heirs, 35 N. C. 259; Devereaux v. McMahon, 108 N. C. 134, 12 L. R. A. 205, 12 S. E. 902; In re Pope, 139 N. C. 484, 111 Am. St Rep. 813, 4 Ann. Cas. 635, 7 L. R. A. (N. S.) 1193, 52 S. B. 235. The certificate of acknowledg- ment of a notary public affixed to a will and signed by him, is a sufficient signature by him as an attesting witness. — Bolton v. Bol- ton, 107 Miss. 84, 64 So. 967. 40 Collins V. Nicols, 1 Har. & J. (Md.) 399. 41 In re Christian, 2 Rob. Ecc. 110; s. c, 7 Notes of Cas. 265. 668 COMMENTARIES ON THE LAW OP WILLS. attestation of the instrument itself,*^ unless this apparent purpose be disproved by evidence from without, which in such case would be admissible.*^ In a California case, however, where a witness signed his name "Wm. H.," and for some reason did not sign his last name, though the paper was scratched as though he had attempted to do so, the attestation was held insufificient, the court say- ing: "No person can tell from an examination of the paper whether the name of the witness was William H. Ford, or William H. Smith, or William H. anything."" Whatever is written must be for the purpose of identify- ing the witness,*' and it must be with the intention that it stand for his signature.** Sealing, however, does not stand for signing.*^ §495. Name of Witness Written by Another: Conflict of Au- thority. We have already seen that a witness may sign by mak- ing his mark. It is also the generally accepted rule that a witness may effectually sign or subscribe his name in attestation of a will if he holds the pen while his sig- nature is being written.** There is a conflict of authority, however, as to whether or not the name of a witness may 42 In re Cunningham, , 4 Sw. & & D. 169 ; In re Duggins, 39 L. J. Tr. 192; s. c, 29 L. J. Ch. 71; In Prob. 24; Lord v. Lord, 58 N. H. re Martin, 6 Notes of Cas. 694; 7, 42 Am. Rep. 565. s. c, 1 Rob. Bcc. 712. 47 In re Byrd, 3 Curt. 117; s. c, 43 Dunn V. Dunn, L. R. 1 P. & 1 Notes of Cas. 490. D. 277. 48 Bell v. Hughes, 5 L. R. Ir. 44Winslow'B Estate, Myrick's 407; In re Lewis, 31 L. J. Prob. Prob. (Cal.) 124. 153, 7 Jur. N. S. 688; In re Frith, 45 In re Eynon, L. R. 3 P. & D. 1 Sw. & Tr. 8; s. c, 27 L. J. Prob. 93; In re Maddock, L. R. 3 P. & 6; s. c, 4 Jur. N. S. 288; Harrison D. 169. V. Elvin, 3 Q. B. 117; s. c, 2 Gale 46 In re Maddock, L. R. 3 P. & D. 769, 6 Jur. 849; In re Pope, ATTESTATION AND SUBSCRIPTION. 669 be signed or subscribed by another, he taking no physical part in the act. This matter was fully considered in a New Hampshire case, in which it was held that the name of an attesting witness who is unable to write may be written by another, at his request, in his presence and in the pres- ence of the testator. "One object of the statute," said the court, "in requiring an attestation of a will is to insure identity and prevent the fraudulent substitution of an- other document. Another object is to surround the tes- tator with witnesses to judge of his capacity. And all these purposes are as readily attained in the case where the name of the attesting witness is written by the agent at the request of the principal, as where the latter makes his mark or holds a pen guided by another hand."*^ There is strong authority that a witness must take part in some physical act whereby his name as a witness is 139 N. C. 484, 111 Am. St. Rep. Dawkins v. Dawklns, 179 Ala. 666, 813, 4 Ann. Gas. 635, 7 L. R. A. 60 So. 289. (N. S.) 1193, 52 S. E. 235. 49 Lord v. Lord, 58 N. H. 7, 42 Where one witness, not know- Am. Rep. 565. See, also, Upchurch Ing how to write his name, the v. Upchurch, 16 B. Mon. (55 Ky.) other, besides attesting as a wit- 102; Matter of Strong's Will, 2 ness to the will, wrote the nama Con. Sur. 574, 16 N. Y. Supp. 104; of the first-mentioned witness and 39 N. Y. St. Rep. 852; In re signed again as a witness to the Crawford, 46 S. C. 299, 57 Am. mark of the first-mentioned wit- St. Rep. 684, 32 L. R. A. 77, ness, it was held sufficient. — In re 24 S. B. 69; Jesse v. Parker's Derry's Estate, Myrick's Prob. Admrs., 6 Grat. (Va.) 57, 52 Am. (Cal.) 202. Dec. 102. Contra: Where one of the at- "There are many cases, Eng- testing witnesses signs for the llsh and American, which hold the testator, at his express request, strict doctrine that the witness and then signs in attestation, he must himself do some manual act can not guide the hand of the in order to make a valid attesta- other witness in attestation. — tlon. The American cases of this 670 COMMENTARIES ON THE LAW OF WILLS. aflSsed to tlie will.^" It woiild seem that the. English cases limit the privilege of one subscribing the name of a wit- ness to a will for him to those cases where the witness himself can not write.^^ But where it is allowable for a witness to sign by mark or to have another write his name, unless restricted by statute as in Georgia ^^ and Lou- isiana,^^ it is not limited to those instances where the witness can not or is unable to write. It is true that, as a matter of fact, in most cases where the witness has been allowed to sign in this way, he was unable to write ; but this fact has not been regarded as essential and should not be controlling.^* character do not appear to have been very thoroughly considered, the courts being apparently con- tent to rest upon the authority of certain English decisions, the grounds and reasons of which are not very fully presented." — Lord V. Lord, 58 N. H. 7, 10, 42 Am. Rep. 565. In Chase v. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687, Jus- tice Gray said: "A subscription oP the name or mark of a witness by another person in the pres- ence of himself and the testator might possibly be a literal com- pliance with the statute; but not being in the handwriting of the witness, would create no presump- tion of a lawful execution and at- testation without affirmative evi- dence that it was so made." 50 Moore v. King, 3 Curt. 243 ; Riley v. Riley, 36 Ala. 496; Horton v. Johnson, 18 Ga. 396; Campbell v. Logan, 2 Bradf. (N. T.) 90; Meehan v. Rourke, 2 Bradf. (N. Y.) 385; In re Pope, 139 N. C. 484, 111 Am. St. Rep. 813, 4 Ann. Cas. 635, 7 L. R. A. (N. S.) 1193, 52 S. E. 235; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Rep. 875, 18 S. W. 280; McFarland v. Bush, 94 Tenn. 538, 45 Am. St. Rep. 760, 27 L. R. A. 662, 29 S. W. 899. Georgia Civil Code, (Park's) 1914, by § 3847, provides that one witness can not subscribe the name of another, although a wit- ness may attest by mark. 51 In re Kileher, 6 Notes of Cas. 15. B2 Georgia Civ. Code, (Park's) 1914, §3847. 53 Louisiana, Merrick's Rev. Civ. Code, 1913, art. 1579. 54 In re Pope, 139 N. C. 484, 111 Am. St. Rep. 813, 4 Ann. Cas. 635, 7 L. R. A. (N. S.) 1193, 52 S. B. 235. ATTESTATION AND SUBSCEIPTION. 671 § 496. Witnesses Should Sign After Execution by Testator Has Been Completed : Strict Rule. It is the general rule that the signing in attestation by the witnesses should follow, in point of time, the sign- ing by the testator, or his acknowledgment of his sig- nature, and the publication of the will, where that for- mality is required.^^ A witness, of course, can not properly sign in attestation of something yet to be done, but if all is part of one transaction, a more liberal view BB Cooper V. Bockett, 3 Curt. 648; Duffle v. Corrldon, 40 Ga. 122; Brooks v. Woodson, 87 Ga. 379, 14 L. R. A. 160, 13 S. B. 712; Reed v. Watson, 27 Ind. 443 ; Chis- holm's Heirs v. Ben, 7 B. Mon. (46 Ky.) 408; Chase v. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687; Marshall v. Mason, 176 Mass. 216, 79 Am. St. Rep. 305, 57 N. E. 344; Schermerhom v, Merritt, 123 Mich. 310, 82 N. W. 513, 83 N. W. 405; Tohln v. Haaok, 79 Minn. 101, 81 N. W. 758; Mickle v. Matlack, 17 N. J. Law 86; Lacey V. Dobbs, 63 N. J. Eq. 325, 92 Am. St. Rep. 667, 55 L, R. A. 580, 50 Atl. 497; Jackson v. Christman, 4 Wend. (N. Y.) 277, 282; Peck v. Gary, 27 N. Y. 9, 31, 84 Am. Dec. 220; Sisters of Charity v. Kelly, 67 N. Y. 409; In re Phillips, 98 N. Y. 267; Eelbeck's Devisees t. Granberry, 3 N. C. 232; In re Ir- vine's Estate, 206 Pa. St 1, 55 AH. 795. Compare: In re Summers, 7 Notes of Gas. 562; s. c, 14 Jur. 791; s. c, 2 Rob. Ecc. 295. Contra: Pollock v. Gla'ssell, 2 Grat. (Va.) 439; Rosser v. Frank- lin, 6 Grat. (Va.) 1, 52 Am. Dec. 97; Sturdivant v. Birchett, 10 Grat. (Va.) 67; Parramore v. Tay- lor, 11 Grat. (Va.) 220. See, ante, §§ 447, 448. Signing of testator should precede that by witnesses. See, ante, §§ 423-426, as to ef- fect of part of will following sig- natures of testator and witnesses. "The words of the section are very precise, and I think It would be attended with dangerous con- sequences if the court were to hold a will valid which had been signed in the presence of two witnesses, who have attested it before the signature of the testa^ tor was affixed to the will; for where is the court to draw the line? Suppose the witnesses at- tested one hour before the testa^ tor signed, or a day, or a week, or any other time, where is the court to stop if It gave a latitude of construction to this section of the act?" — Cooper v. Bockett, 3 Curt. 648, 659, 660. 672 COMMENTARIES ON THE LAW OF WILLS. should be taken. In those courts where the rule is strictly applied, if a witness sign before the testator has written his name, it is not a valid attestation.®* No authority is given to the witnesses, as in the case of the testator, to acknowledge their signatures previously written.^^ Going over with a dry pen a signature previously made is no more than equivalent to acknowledgment and will not take the place of signing in the presence of the tes- 56 In re Cox's Will, 46 N. C. 321; In re Olding, 2 Curt. 865; In re Byrd, 3 Curt. 117; Hudson v. Parker, 1 Rob. Ecc. 14, 39; Shaw V. Neville, 1 Jur. N. S. 408; Charl- ton V. Hindmarsh, 1 Sw. & Tr. 433; s. c, 8 H. L. Cas. 160; In re Cunningham, 4 Sw. & Tr. 194, 29 L. J. Prob. (N. S.) 71; In re Hos- kins, 32 L. J. Prob. (N. S.) 158; Rash V. Pumel, 2 Har. (Del.) 448, 458; Fennel's Lessee v. Weyant, 2 Har. (Del.) 501, 506; Chase v. Kit> tredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687; Barnes v. Chase, 208 Mass. 490, 94 N. E. 694; Jack- son V. Jackson, 39 N. Y. 153; Rag- land V. Huntingdon, 23 N. C. 561; Graham v. Graham, 32 N. C. 219. Contra: Sturdivant v. Birchett, 10 Grat. (Va.) 67; Parramore v. Taylor, 11 Grat. (Va.) 220. 57 Ellis V. Smith, 1 Ves. Jun. 11; s. c, 1 Dick. 225; Playne v. Scri- ven, 1 Rob. Ecc. 772, 775; s. c, 7 Notes of Cas. 122; In re Trevan- ion, 2 Rob. Ecc. 311; In re Cope, 2 Rob. Ecc. 335; Hoil v. Clark, 3 Mod. 219; Lee v. Libb, 1 Show. (K. B.) 69; In re Allen, 2 Curt. 331; Moore v. King, 3 Curt. 243; 8. c, 2 Notes of Cas. 45; In re Simmonds, 1 Notes of Cas. 409; s. c, 3 Curt. 79; In re Mead, 1 Notes of Cas. 456; In re White, 2 Notes of Cas. 461; s. c, 7 Jur. 1045; Hands v. James, 2 Comyns 532; Onions v. Tyrer, 1 P. Wms. 344; Dormer v. Thurland, 2 P. Wms. 506; RauclifEe v. Par- kyns, 6 Dow. 202; Lamb v. Girt- man, 33 Ga. 289; Duffie v. Corri- don, 40 Ga. 122; Reed v. Watson, S7 Ind. 443; Pope v. Pope, 4 Pick. (Mass.) 129; Chase v. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687; Mendell v. Dunbar, 169 Mass. 74, 61 Am. St. Rep. 277, 47 N. E. 402; Maynard v. Vinton, 59 Mich. 139, 60 Am. Rep. 276, 26 N. W. 401; Lord v. Lord, 58 N. H. 7, 42 Am. Rep. 565; Den v. Mitton, 12 N. J. L. 70; Miokle v. Matlaek, 17 N. J. L. 86; Pawtucket v. Ballou, 15 R. L 58, 2 Am. St Rep. 868, 23 Atl. 43; Downie's Will, 42 Wis. 66. Compare: Patterson v. Ransom, 65 Ind. 402. Contra: Sturdivant v. Birchett, 10 Grat. (Va.) 67; Parramore v. Taylor; 11 Grat. (Va.) 220. ATTESTATION AND SUBSCRIPTION. 673 tator. There must be some act apparent upon the face of the paper.®* Neither will it be sufficient to add the name of the witness's place of residence,®^ nor to add a date and to cross a defective letter.®* §497. The Same Subject: Liberal Rule. Other courts have given a latitude of construction to this section of the statute, holding that, provided the sig- nature or acknowledgment of the testator and the at- testation of the witnesses be accomplished upon one oc- casion and as part of one transaction, it is immaterial in what order the acts are performed.*^ Likewise when, after the first witness had signed, the testator inserted some immaterial words and then acknowledged the exe- 58 Playne v. Scriven, 1 Rob. Ecc. 772; s. c, 7 Notes of Cas. 122; s. c, 13 Jur. 712; In re Cun- ningham, 4 Sw. & Tr. 192; s. c, 29 Law J. Prob. 71; In re Mad- dock, L. R. 3 P. & D. 169. 59 In re Trevanion, 2 Rob. Ecc. 311. 60 Charlton v. Hindmarsh, 1 Sw. & Tr. 433; s. c, 8 H. L. Cas. 160. 61 O'Brien v. Galagher, 25 Conn. 229; Swift v. Wiley, 1 B. Mon. (40 Ky.) 114, 117; XJpchurch v. Upchurch, 16 B. Mon. (55 Ky.) 102, 113; Sechrest v. Edwards, 4 Mete. (-61 Ky.) 163; Kaufman v. Caughman, 49 S. C. 159, 61 Am. St. Rep. 808, 27 S. B. 16; Cutler v. Cutler, 130 N. C. 1, 89 Am. St. Rep. 854, 57 L. R. A. 209, 40 S. E. 689; Pollock V. Glassell, 2 Grat. (Va.) 439; Sturdivant v. Birchett, 10 Grat. (Va.) 67; Parramore v. Tay- lor, 11 Grat. (Va.) 220. I Com. on Wills— 43 Compare: In re Collins, 5 Redf. (N. Y.) 20; Patterson v. Ransom, 55 Ind. 402; Miller v. McNeill, 35 Pa. St. 217, 78 Am. Dec. 333. Where one witness signs in an- ticipation of the execution and the other after the testator has isigned, this is good provided the testator is present on each occa- sion. — Limbach v. Bolin, 169 Ky. 204, 183 S. W. 495; Horn's Es- tate V. Bartow, 161 Mich. 20, 20 Ann. Cas. 1364, 26 L. R. A. (N. S.) 1126, 125 N. W. 696. In Maryland it has been held that although the witnesses did not in fact write or subscribe the will at one time, yet if when after- ward, all together and in the pres- ence of the testator, those who had written their names pre- viously reaffirm their signatures, it is a valid attestation. — Moale v. Cutting, 59 Md. 510. 674 COMMENTAEIES ON THE LAW OF WILLS. cution of the will in tlie presence of both witnesses, it was considered a valid execution.*^ So, too, where the statute does not require the attesting witnesses to sign the will, as in Pennsylvania, or when it does not contain the phrase "in the presence of the testator," ackaowledg- ment may take the place of signing in the testator's pres- ence.** § 498. Position of Signatures of Witnesses. The provisions of the Statute of Frauds and the Vic- torian Statute of Wills merely required the witnesses to subscribe their names, but did not otherwise desig- nate the position of their signatures. Under these stat- utes it is held that the names of the witnesses may be written in any part of the will, although the term ' ' sub- scribe" is employed in both acts.®* This doctrine has been carried so far as to hold, that where one of the wit- nesses signed his name opposite the word "executors," upon the request of the testator to sign "in that char- acter," he did not sign exclusively as executor, but that he also intended to affirm that the deceased executed the 62 Bateman v. Mariner, 5 N. C. 64 In re Chamney, 1 Rob. Ecc. 176. 757; s. c, 7 Notes of Cas. 70; 63 Ruddon V. McDonald, 1 Bradf. Goo^s of Braddock, L. R. 1 P. Div. 433; Roberts v. Phillips, 4 El. & (N. Y.) 352; Campbell v. Logan, 2 Bradf. (N. Y.) 90; Vaugban v. Burford, 3 Bradf. (N. Y.) 78; Ex B. 450; s. c, 24 L. J. Q. B. 171. "The mere requisition that the will shall be subscribed by the parte Leroy, 3 Bradf. (N. Y.) 227; ^jt^^sses we think is complied Miller V. McNeill, 35 Pa. St. 217, .^j^^ ^^ ^■^^^ witnesses, who saw 78 Am. Dec. 333; Pollock v. Glas- jt executed by the testator, Im- sell, 2 Grat. (Va.) 439. mediately signing their names on Compare: Chase v. Kittredge, any part of it, at his request, 11 Allen (Mass.) 49, 87 Am. Dec. with the intention of attesting it." 687; Hoysradt v. Kingman, 22 —-Roberts v. Phillips, 4 El. & B. N. Y. 372. 450. ATTESTATION AND SUBSCRIPTION. 675 ■will in his presence and that the attestation is valid.®^ If any portion of the will follows the signatures, evidence is admissible to show that it was written prior to the at- testation.*® Neither have the American courts always held it material in what part of the instrument the wit- nesses sign, if they do so after the subscription and ac- knowledgment of the will by the testator, and with the purpose of signing as attesting witnesses.®'' Thus, in Texas, it is of no importance that witnesses to a wUl sign in, instead of after, the attestation clause.®* And in Maryland, if the witnesses sign above the attestation clause, instead of below, it will not render the will in- valid.®* In other states, a stricter rule is found requir- ing the attesting signatures to be at the foot or end of the Avill, as in Kentucky. It is also required by the statutes of New York, California, Arkansas, Montana,'^" Dakota, and Utah.'^^ Where, as in New York, the statute declares that attesting witnesses shall sign their names at the end of the will, this requirement is imperative.''* § 499. Witnesses Must Sign Their Names Animo Testandi. In all cases in which there is any irregularity in the position of the names of the witnesses the court must be satisfied that they were written animo testandi. Where, 65 Griffiths T. Griffiths, L. R. 2 Ti See synopsis of statutes, Ap- P. & D. 300. pendix, this volume. 66 In re Jones, 1 Notes of Gas. 72 Matter of Case, 4 Demarest 396. (N. Y.) 124, 1 N. Y. St. Rep. 152; 67 Fowler v. Stagner, 55 Tex. Matter of Dayger, 47 Hun (N. Y.) 393; Potts V. Felton, 70 Ind. 166. 127; Matter of Blair's Will, 84 68 Franks v. Chapman, 64 Tex. Hun (N. Y.) 581, 32 N. Y. Supp. 159. 845; Matter of Beck's Will, 6 App. 69Moale V. Cutting, 59 Md. 510. Div. 211, 39 N. Y. Supp. 810; Mat- 70 Soward v. Soward, 1 Duvall ter of Conway, 124 N. Y. 455, 11 (62 Ky.) 126. L. R. A. 796, 26 N. E. 1028. 676 COMMENTARIES ON THE LAW OF WILLS. therefore, a will was written on one page of a foolscap sheet of paper and the testator's signature appeared at the end of that page, with the words, "Witness, William Hatton," and under a memorandum not testamentary at the top of the second page of the same sheet the names of three persons were subscribed, the court came to the conclusion, from the position of the three names, the nature of the memorandum, and the circumstances of the case, that they were not placed there for the purpose of attesting the will, but probably to signify their accept- ance of a trustJ^ A will written on two sides of a piece of paper, signed by the witnesses at the bottom of the first and top of the other side, an important provision following the last signatures, was held not to be exe- cuted in compliance with the statute.''* If the will con- sists of several sheets of paper, it is not necessary that each sheet be signed by the witnesses.^® But the signa- tures of the witnesses must be either upon the same sheet as the signature of the testator, or on some sheet physically connected with iU^ The whole will must be in the presence of the witnesses at the time they attest and subscribe the same.'^^ 73 In re Wilson, L. R. 1 P. & D. 76 In re Baldwin's Will, 145 269; Dunn v. Dunn, L. R. 1 P. & N. C. 25, 125 Am. St. Rep. 466, 59 D. 277. S. E. 163. 74 In re Hewitt's Will, 91 N. Y. 77 "it is possible, when a will 261. is written on separate sheets of T5 Bond V. Seawell, 3 Burr, paper loosely fastened together, 1773; Jones v. Habersham, 63 Ga. that one or more sheets might be 146; WikofE's Appeal, 15 Pa. St. removed and others substituted; 281, 53 Am. Dec. 597; Ela v. Ed- but the possibility of this being wards, 16 Gray (Mass.) 91, 99. done is not sufficient to justify See, ante, § 64, as to the pre- denying the admission of a will sumption where a will consists to probate. It is not necessary of several sheets. to the validity of a will that it ATTESTATION AND SUBSCRIPTION. 677 § 500. Witnesses Must Sign "in the Presence of the Testator." Practically all of the statutes relating to the execu- tion of wills require that the attesting witnesses sign or subscribe their names "in the presence of the testator." This was demanded by the Statute of Frauds, by the Vic- torian Statute of Wills, and in those of nearly every state of the Union.'^^ The requirement is absolute, when demanded by statute; and as the object of the rule re- should be all written on one sheet of paper. All that is required Is that the whole will shall he in the presence of the witnesses when attested by them." — Palmer V. Owen, 229 111. 115, 118, 82 N. E. 275. 78 Lockridge v. Brown, 184 Ala. 106, 63 So. 524; International Trust Co. V. Anthony, 45 Colo. 474, 16 Ann. Cas. 1087, 22 L. R. A. (N. S.) 1002, 101 Pac. 781; Scho- field V. Thomas, 236 m. 417, 86 N. E. 122; Cunningham v. Cun- ningham, 80 Minn. 180, 81 Am. St. Rep. 256, 51 L. R. A. 642, 83 N. W. 58; Church of St. Vincent de Paul V. Brannan (In re Brannan's Es- tate), 97 Minn. 349, 107 N. W. 141; Berst V. Moxom, 163 Mo. App. 123, 145 S. W. 857; Avaro v. Avaro, 235 Mo. 424, 138 S. W. 500; In re Baldwin's Will, 146 N. C. 25, 125 Am. St. Rep. 466, 59 S. E. 163; In re Bowling's Will (TJmstead v. Bowling), 150 N. C. 507, 64 S. E. 368. See synopsis of statutes. Appen- dix, this volume. In Pennsylvania, subscription by attesting witnesses is not nec- essary except in cases of chari- table devises or bequests. — Pur- don's Dig. Pa. Laws, 13th ed., pp. 5120, 5129. In New York, each of the at- testing witnesses must sign his name as a witness, at the end of the will, at the request of the testator, but the statute does not specify that the signing must be in the presence of the testator. — N. Y. Cons. Laws, 1909, ch. 18, §21. For this reason the doctrine of the witnesses being constructively in the presence of the testator, hereinafter treated, is not now of practical interest in that state. — 4 Kent Com. *515; Lyon v. Smith, 11 Barb. (N. Y.) 124; Ruddon v. McDonald, 1 Bradf. (N. Y.) 352; Matter of Phillips' Will, 34 Misc. Rep. 442, 69 N. Y. Supp. 1011; In re Jones' Will, 85 N. Y. Supp. 294. The Arkansas statute is prac- tically the same as that of New York, the term "presence of wit- nesses" being omitted in regard to the signing by witnesses.— Ar- kansas, Kirby & Castle's Dig. of 678 COMMENTAEIES ON THE LAW OF WILLS. quiring witnesses to be present to protect the testator from fraud and the substitution of a di:fferent paper in the place of the one signed by him, it is immaterial what may have caused the absence of one or all of the wit- nesses.'^* §501. What Constitutes "in the Presence of the Testator.'' It is difficult to lay down any one general rule under which all the cases defining "the presence of the testa- tor" may be reconciled. While some of the decisions maintain that the provision should be liberally construed in conformity with the spirit of the statute,^" holding it sufficient that the testator might have seen the wit- nesses while subscribing their names had he chosen to do so,®^ it has, on the other hand, been held that he must stats. 1916, § 10051; Matter of Cor- nelius' Will, 14 Ark. 675. In Tennessee, wills of person- alty are not required to be signed by witnesses. — Simmons v. Leon- ard, 91 Tenn. 183, 30 Am. St. Rep. 875, 18 S. W. 280; Long v. Mick- ler, 133 Tenn. 51, 179 S. W. 477. As to acknowledgment of his signature, previously signed, by a witness, see, ante, § 495. 79 Broderick v. Broderick, 1 P. Wms. 239; Macbell v. Temple, 2 Show. 288. Although both witnesses saw the testator sign and heard him declare the Instrument to be his last will and testament, yet as one of them signed in attestation out of the presence of the testa- tor, it was held fatal, the court saying: "No other result may be reached except through a process of illogical, strained and unsup- ported reasoning." — International Trust Co. V. Anthony, 45 Colo. 474, 16 Ann. Cas. 1087, 22 L. R. A. (N. S.) 1002, 101 Pac. 781. 80 Montgomery v. Perkins, 2 Mete. (59 Ky.) 448, 74 Am. Dec. 419. 81 McElfresh v. Guard, 32 Ind. 408; Turner v. Cook, 36 Ind. 129 Ambre v. Weishaar, 74 111. 109 Aikin v. Weckerly, 19 Mich. 482 In re Downie's Will, 42 Wis. 66, n. 2. Compare: Longford v. Eyre, 1 P. Wms. 740; Casson v. Dade, 1 Bro. C. C. 99; Winchilsea v. Wau- chope, 3 Russ. 443; Dewey v. Dewey, 1 Mete. (42 Mass.) 349, 35 Am. Dec. 367. ATTESTATION AND SUBSCRIPTION. 679 not only be able to see the witnesses, but mtist be able also to see their proceedings in the act of subscription.®^ It is believed, however, that most of the cases may be placed under one or the other of the following propo- sitions : 1. The presence contemplated by the statute is not simply the bodily presence of the testator; it is essen- tial that he be also mentally capable of recognizing and actually conscious of the act performed before him.®* 2. If the witnesses be in the same room with the tes- tator, and he be not hindered in his movements by bodily infirmity nor otherwise prevented from seeing them, it is conclusive presumption of law that the subscription was "in his presence," and it does not invalidate the will to show that he did not actually see the witnesses in the process of writing their names.®* Where the evidence 82 Graham v. Graham, 32 N. C. 219. 83 Longford v. Eyre, 1 P. Wms. 740; Right v. Price, 1 Doug. 241; OrndorfE v. Hummer, 12 B. Men. (51 Ky.) 619; In re Allen's Will, 25 Minn. 39; Watson v. Pipes, 32 Miss. 451; Vemam v. Spencer, 3 Bradf. (N. Y.) 16. 84 Davy V. Smith, 3 Salk. 395; Casson v. Dade, 1 Bro. G. C. 99; Goods of Trimmell, 11 Jur. N. S. 248; Longford v. Eyre, 1 P. Wms. 740; Tod v. Winchelsea, 2 Car. & P. 488; Newton t. Clarke, 2 Curt. 320; In re Killick, 3 Sw. & Tr. 578, 34 L. J. Prob. 2; Hill v. Barge, 12 Ala. 687; Bumham v. Grant (In re Burnham's Will), 24 Colo. App. 131, 134 Pac. 254; Reed v. Roberts, 26 Ga. 294, 71 Am. Deo. 210; Hamlin v. Fletcher, 64 Ga. 549; Drury v. Connell, 177 111. 43, 52 N. E. 368; Turner v. Cook, 36 Ind. 129, 136; Russell v. Falls, 3 Har. & McH. (Md.) 457, 463, 1 Am. Dec. 380; Edelen v. Har- dey's Lessee, 7 Har. & J. (Md.) 61, 16 Am. Deo. 292; Aikin v. Weckerly, 19 Mich. 482; Cook v. Winchester, 81 Mich. 581, 8 L.R.A. 822, 46 N. W. 106; In re Allen's Will, 25 Minn. 39; Cunningham V. Cunningham, 80 Minn. 180, 81 Am. St. Rep. 256, 51 L. R. A. 642, 83 N. W. 58; Walker v. Walker, 67 Miss. 529, 7 So. 491; Healey v. Bartlett, 73 N. H. 110, 6 Ann. Gas. 413y 59 Atl. 617; In re Cherry's Will, 164 N. C. 363, 79 S. E. 288; Hopkins v. Wheeler, 21 R. I. 533, 79 Am. St. Rep. 819, 45 Atl. 551. 680 COMMENTARIES ON THE LAW OP WILLS. fails to show in what part of a room the subscription took place, it will be presumed to have been at the most If the witnesses when signing a will are In such a place that the testator can see them if he chooses, they are in his presence* — Burnham v. Grant (In re Burn- ham's Will), 24 Colo. App. 131, 134 Pac. 254; Ambre v. Weishaar, 74 111. 109. "The evidence upon this branch of the case tends to show that the will was signed by the tes- tator upon a table adjoining his sick bed, and that it was signed by the witnesses immediatelyr after he signed it upon the samoi table and in his immediate pres- ence." Will admitted to probate. —Church of St. Vincent de Paul V. Brannan (In re Brannan's Es- tate), 97 Minn. 349, 107 N. W. 141. It is not necessary that the tes- tator actually see the witnesses sign the will, if they are in his presence and the situation Is such that he could see them if he soi wished. — ^In re Cherry's Will, 164 N. C. 363, 79 S. B. 288. "In other words, if he has knowl- edge of their presence, and can, if he Is so disposed, readily see them write their names, the will Is attested in his presence, even If he does not see them do it and could not without some slight physical exertion. It is not neces- sary that he should actually see the witnesses for them to be in his presence. They are in his presence whenever they are so near him that he is conscious of where they are and of what they are doing, through any of his senses, and are where he can readily see them if he is so dis- posed. The test, therefore, to de- termine whether the will of a person who has the use of all his faculties is attested in his pres- ence. Is to Inquire whether he understood what the witnesses were doing when they affixed their names to his will, and could, if he had been so disposed, readily have seen them do it." — Healey V. Bartlett, 73 N. H. 110, 6 Ann. Cas. 414, 59 Atl. 617. Compare: In a case in Massa- chusetts, where the witnesses sub- scribed their names in an adjoin- ing room in the line of vision of the testator, who, however, could not see them, being able to look upward only, yet could hear and was perfectly conscious of what was being done, and the attesta^ tion was held to be "in the pres- ence" of the testator. — ^Rlggs v. Rlggs, 135 Mass. 238, 46 Am. Rep. 464. This case stands almost if not entirely alone, and the authorities to the contrary are numerous. — Eccleston v. Petty, Carth. 79 ; s. c, Comb. 156; s. c, 1 Show. 89; Cas. Temp. Holt. 222; In re Newman, 1 Curt. 914; In re Ellis, 2 Curt. 395; In re Colroan, 3 Curt. 118; ATTESTATION AND SUBSCRIPTION. 681 convenient place, and the ordinary position of a table likely to have been used will be taken into considera- tion.85 3. If the witnesses be in the same room with the tes- tator and he be hindered in his movements by bodily in- firmity or otherwise, it is a disputable presumption of law that the subscription was "in his presence," and if it be shown that he could not see the witnesses in the process of writing their names without assistance from another, or pain, or inconvenience, or danger to life, it will invalidate the will.^® Broderick v. Broderick, 1 P. Wmg. 239; Machell v. Temple, (K. B.) 2 Show. 288; Doe d. Wright v. Manifold, 1 Maule & S. 294; Bol- dry V. Parris, 2 Gush. (Mass.) 433; Reynolds v. Reynolds, 1 Speers L. (S. C.) 253, 40 Am. Dec 599. 85 Winchilsea v. Wauchope, 3 Russ. 441, 444. Compare: There is no presump- tion of the presence of the testa- tor and, in default of a statement of such presence in the attesta- tion clause, his presence must he proved before the will can be ad- mitted to probate. — Schofield v. Thomas, 236 111. 417, 86 N. E. 122. 86 Tribe v. Tribe, 1 Rob. Ecc. 775; s. c, 13 Jur. 793; s. c, 7 Notes of Cas. 132; Doe d. Wright V. Manifold, 1 Maule & S. 294; Jones V. Tuck, 48 N. C. 202; Rus- sell V. Falls, 3 Har. & McH. (Md.) 457, 463, 1 Am. Dec. 380; Neil v. Neil, 1 Leigh (Va.) 6. "The bare subscribing of the will by the witnesses in the same room does not necessarily imply it to be in the testator's pres- ence; for it might be in a corner of the room, in a clandestine, fraudulent way." — Longford v. Eyre, 1 P. Wms. 740. Presence of the testator neces- sary for the act of signing in at- testation means in a situation such as the testator is enabled to see the act. In this connection it is immaterial that the testator is too feeble to move so as to observe what is going on. — Gor- don V. Gilmore, 141 Ga. 347, 80 e. E. 1007. A will is not witnessed in the presence of the testator unless he either sees the witnesses sign, or be in a position to see them sign. —In re Herring's Will, 152 N. C. 258, 67 S. E. 570. In Neil v. Neil, 1 Leigh (Va.) 6, 27, a very fully argued case in point, it was said: "Nor is there any case which intimates that where the testator is in such a situation that he can not see the 682 COMMENTARIES ON THE LAW OF WILLS. 4. If the witnesses be not in the same room with the testator, it is a disputable presumption of law that the subscription was not "in his presence," and unless it be shown that he actitally saw them in the process of writing their names the will is not valid.®'' This rule, subscription of the witnesses, by means of his own power and voli- tion as above mentioned, it is suffi- cient to satisfy the requisition of the statute that he might cause himself, or the witnesses, to be placed in such a situation as that he might see their attestation." 87 Doe d. Wright v. Manifold, 1 Maule & S. 294; Norton v. Ba- zett, 1 Deane & Sw. 259; s. c, 3 Jur. N. S. 1084; Newton v. Clark, 2 Curt. 320; In re Colman, 3 Curt. 118; In re Killick, 3 Sw. & Tr. 578, 34 L. J. Prob. 2; Jenner V. Ffinch, L. R. 5 Prob. Div. 106; Hill V. Barge, 12 Ala. 687; Robin- son V. King, 6 Ga. 539; Russell V. Falls, 3 Har. & McH. (Md.) 457, 463, 1 Am. Dec. 380; Bdelen V. Hardey's Lessee, 7 Har. & J. (Md.) 61, 16 Am. Dec. 292; Mande- ville V. Parker, 31 N. J. Eq. 242; Moore v. Moore's Exr., 8 Grat. (Va.) 307. The persons signing as attest- ing witnesses were, during the process of so signing, in a sep- arate room from that in which the testatrix was. From her situa- tion she could not see them, but she might have done so by get- ting up and putting her head in at the doorway between the rooms. She had been in the room, had signed at the same table and been then assisted out. She had said nothing as to the instrument being her will, nor in request that these persons sign as witnesses. Probate was denied. — Schofleld V. Thomas, 236 111. 417, 86 N. B. 122. The testator and witnesses need not be in the same room at the time of executing a will. They are in each other's presence if the arrangement of the room is such that there is an opportunity on the part of each to see the others. — Bogert v. Bateman, (N. J.) 65 Atl. 238. The testator, a man aged eighty- four years, went to the store of C. & L. with F. in order that F. and L. might witness his will. The testator produced the signed instrument and the two others took it into a "little room" in the store where C. was accustomed to do his writing, where they signed it in attestation. The testator was outside the open window about two or three feet away, and could have seen the operation had he wanted to. The attestation was held good. — In re Bowling's Will (Umstead v. Bowling), 150 N. C. 507, 64 S. E. 368. ATTESTATION AND SUBSCRIPTION. 683 however, does not embrace some English cases which hold that although the witnesses be in another room, if the witnesses signed in the line of vision of the testator and he could have seen them, it is not essential to prove that he did so.®* § 502. Witnesses Signing in a Different Room. When the subscription by the witnesses takes place in a different room from that in which the testator is con- fined in bed, or in a room where a partition or closed door might separate the testator from the witnesses, the latter are not strictly in the presence of the testator. But if the testator can by a slight change of position, such as turning his head, view the act of subscription, the wit- nesses are constructively in his presence, therein differ- ing from being in his actual presence. Such constructive presence is sufficient to answer the requirements of the statute, but it must be limited. The testator should have the physical ability to change his position, in addition to the mental ability to comprehend what he is doing, so 88 Shires v. Glascock, 2 Salk. Tr. 578, 34 L. J. Prob. 2, where 688; s. c, 1 Eq. Cas. Abr. 403; the witnesses signed in the next Davy V. Smith, 3 Salk. 395; Cas- room, the door being open, and by son V. Dade, 1 Bro. C. C. 99 ; Tod raising her head the testatrix, who V. Winchelsea, 2 Car. & P. 488; was sick in bed, could have seen Sturdivant v. Birchett, 10 Grat. them sign, but not otherwise. She (Va.) 67; Nock v. Nock's Bxrs., had not seen them, did not know 10 Grat. (Va.) 106, 108. they were signing or even know Compare: Norton v. Bazett, 1 they were there. Sir J. P. Wilde Deane & Sw. 259; s. c, 3 Jur. N. S. said: "I think such an act as this 1084; where the witnesses were can not be said to be done by one out of the line of the testator's person in the presence of another, vision, the will being rejected. — unless at the time each is aware Goods of Killick, 3 Sw. & Tr. 578, of the other's presence." To the 34 L. J. Prob. 2. eame effect, see Jenner v. Ffliich, In Goods of Killick, 3 Sw. & L. R. 5 Pro. Div. 106. 684 COMMENTAEIES ON THE LAW OP WILLS. as to be able to actually see the subscription by the wit- nesses; and the signing should be within easy view of the testator, for if more than slight effort is required on the part of the testator in order to see the act of signing, he might not know which way to turn.^* § 503. Blind Testator: What Constitutes "in His Presence." The rule that witnesses can not be said to be in the "presence of the testator" unless they are within a rea- sonable degree of proximity where, unaided, the testator may easily view them, has reference only to those cases where the testator has the faculty of sight. Most men can see, and vision is the usual and safest test of pres- ence, but it is not the only test. A blind man may note the presence of another through the sense of touch or hearing. The rule now generally adopted is that, although one may have lost his sense of sight, if his mind is unaffected and he is sensible of what is being done, if witnesses subscribe his will in the same room or within reasonable close proximity and within his hearing, they subscribe in his presence.®" 89 Orndorff v. Hummer, 12 B. Mass. 238, 46 Am. Rep. 464; Ray- Mon. (51 Ky.) 619; McKee v. Mc- mond v. Wagner, 178 Mass. 315, 59 Kee's Exr., 155 Ky. 738, 160 S. W. N. E. 811; Maynard v. Vinton, 59 263. Mich. 139, 60 Am. Rep. .276, 26 90Bynum v. Bynum, 33 N. C. N. W. 401; Healey v. Bartlett, 73 632; In re AUred's Will, 170 N. C. N. H. 110, 6 Ann. Cas. 413, 59 Atl. 153, Ann. Cas. 1916D, 788, 86 S. B. 617. 1047; In re Pickett's Will, 49 Ore. Where the witnesses to the will 127, 89 Pac. 377; Reynolds v. of a blind man signed about four Reynolds, 1 Speers L. (S. C.) 253, feet distant from him, it was held 40 Am. Dec. 599; Ray v. Hill, 3 in the presence of the testator. — Strob. L. (S. C.) 297, 302, 49 Am. In re AUred's Will, 170 N. C. 153, Dec. 647; Neil v. Neil, 1 Leigh Ann. Cas. 1916D, 788, 86 S. E. (Va.) 6, 23 (dictum). 1047. See, also, Riggs v. Rlggs, 135 Where it was stated in the pres- ATTESTATION AND SUBSCRIPTION. 685 It has been said that in the case of a blind testator the witnesses should occupy a position such that he might see them had he the sense of sight.®^ Evidently the bet- ter rule is that they should be within the cognizance of his remaining senses.®^ It is not necessary that a will should be read to a blind testator in the presence of the witnesses,^* although proof will always be required that persons suffering from such infirmity or those who are illiterate had in some way acquired a knowledge of the contents of the paper.** § 504. Witnesses Signing in the Presence of Each Other. Under the Statute of Frauds where the requirement was that the will should be attested and subscribed in the presence of the testator by three or more credible witnesses, it became well settled at a very early date that a will of real estate, attested by three witnesses who had at several times subscribed their names in the pres- ence of the testator and at his request, was valid, although all the witnesses were never present at the enoe of the testator, who was Speers L. (S. C.) 253, 40 Am. Dec. blind, that two persons were to 599; Ray v. Hill, 3 Strob. L. act as witnesses to his will, and (S. C.) 297, 49 Am. Dec. 647; Neil they were so requested by his v. Neil, 1 Leigh (Va.) 6, 23. attorney, in his presence, the re- 93 Mealey's Will, 11 Phila. (Pa.) quest was sufficient. — In re Pick- 161. ett's Will, 49 Ore. 127, 89 Pao. 377. Compare: Combs' Appeal, 105 91 In re Piercy, 1 Rob. Bcc. 278. Pa. St. 155. See, also, Raymond v. Wagner, 94 in re Axford, 1 Sw. & Tr. 178 Mass. 315, 59 N. E. 811; May- 540; Fincham v. Edwards, 3 Curt, nard v. Vinton, 59 Mich. 139, 60 63 ; Martin v. Mitchell, 28 Ga. 382 ; Am. Rep. 276, 26 N. W. 401; Wampler v. Wampler, 9 Md. 540; Healey v. Bartlett, 73 N. H. 110, Day v. Day, 3 N. J. Eq. 549; Hess' 6 Ann. Cas. 413, 59 Atl. 617. Appeal, 43 Pa. St. 73, 82 Am. Dec. 92 Reynolds v. Reynolds, 1 551. 686 COMMENTARIES ON THE LAW OF WILLS. same time.»« The Statute of Wills of 1 Victoria, ch. 26, sec. 9, requires that his ' ' signature shall be made or ac- knowledged by the testator in the presence of two or more witnesses present at the same time, and such wit- nesses shall attest and shall subscribe the will in the presence of the testator." The requirement of the joint presence of the witnesses goes only to the time of the testator's signing or acknowledging. Under this statute the testator must sign or acknowledge before all of the witnesses present at the same time;"® but the witnesses, although they must subscribe their names in the pres- ence of the testator, are not required to sign in the pres- ence of each other."'' § 505. The Same Subject: When Demanded by Statute. In some of the states it is required by statute that the witnesses to a will must sign the same in the pres- ence of each other, and this requirement, when demanded, like all other formalities, must be complied with or the will must be declared invalid."* In the absence of a stat- 95 Anon., 2 Chan. Cas. 109; Cook held good. — Green v. Crain, 12 V. Parsons, Free, in Ch. 184; Gryle Grat. (Va.) 252. V. Gryle, 2 Atk. 176; Jones v. 96 In re Allen, 2 Curt. Ecc. 331; Lake, cited in 2 Atk. 176, n.; Gray- In re Simmonds, 3 Curt. Ecc. 79; son V. Atkinson, 2 Ves. Sen. 454; Moore v. King, 3 Curt. Ecc. 243. Jauncey v. Thorne, 2 Barb. Ch. 97 In re Webb, Dea. & Sw. 1; (N. Y.) 40, 45 Am. Dec. 424. Faulds v. Jackson, 6 Notes o£ Cas. Where the testator signed and Supp. 1. acknowledged his signature in the 98 Under such a statute, where presence of one witness who sub- three witnesses were required, a scribed his name at that time, and will signed at one time by two later acknowledged his signature witnesses only can not have life to a second witness, who then imparted to it by a codicil sub- subscribed his name as such, the scribed by two witnesses, one of first witness being present, the whom is different from the wit- attestation and subscription were nesses to the will itself. — Dunlap ATTESTATION AND SUBSCRIPTION. 687 ute requiring it, the witnesses need not sign their names in the presence of each other.^* In a case, however, just decided in California, under the statute of that state which does not in terms require that the witnesses sub- scribe their names in the presence of each other,' it was V. Dunlap, 4 Desaus. Eq. (S. C.) 305. Compare: Lea v. Libb, Cartb. 35; s. c, 3 Salk. 395. But in jurisdictions where the statute does not require all the witnesses to be present at the same time, evidence of intention that the attestation of the codicil should apply to the will also is admissible and. If such an inten- tion was established, the number of the witnesses might thus be completed. — Bond v. Seawell, 3 Burr. 1775. 99 Notes V. Doyle, 32 App. D. C. 413; Hoffman v. Hoffman, 26 Ala. 535; Moore v. Spier, 80 Ala. 129, 130; Rogers v. Diamond, 13 Ark. 474; Gaylor's Appeal, 43 Conn. 82; In re Lane's Appeal, 57 Conn. 182, 14 Am. St. Rep. 94, 4 L. R. A. 45, 17 Atl. 926; Webb v. Fleming, 30 Ga. 808, 76 Am. Dec. 675; Flinn v. Owen, 58 111. Ill; Johnson v. Johnson, 106 Ind. 475, 55 Am. Rep. 762, 7 N. E. 201; Matter of Hull, 117 Iowa 738, 89 N. W. 979; Dewey v. Dewey, 1 Mete. (Mass.) 349, 35 Am. Dec. 367; Chase v. Kittredge, 11 Allen (Mass.) 49, 87 Am. Dec. 687; Fleming v. Mor- rison, 187 Mass. 120, 105 Am. St. Rep. 386, 72 N. E. 499; Cravens v. Faulconer, 28 Mo. 19; Welch v. Adams, 63 N. H. 344, 56 Am. Rep. 521, 1 Atl. 1; Conselyea v. Walker (In re Bogert's Will), 4 Civ. Proc. Rep. 441, 2 Demarest ( N. Y.) 117, 67 How. Pr. 113; Hoysradt v. Kingman, 22 N. Y. 372; Willis v. Mott, 36 N. Y. 486; In re Bugler's Will, 56 Misc. Rep. 218, 107 N. Y. Supp. 222; Watson v. Hinson, 162 N. C. 72, Ann. Cas. 1915A, 870, 77 S. E. 1089; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Rep. 875, 18 S. W. 280; Blanchard's Heirs V. Blanchard's Heirs, 32 Vt. 62; Parramore v. Taylor, 11 Grat. (Va.) 220; In re Smith's Will, 52 Wis. 543, 38 Am. Rep. 756, 8 N. W. 616, 9 N. W. 665. Compare: Casement v. Fulton, 5 Moore P. C. C. 130; Dack v. Dack, 19 Hun (N. Y.) 630. 1 Cal. Civ. Code, § 1276, requires, as to a will other than a holo- graphic will, in part, as follows: ". . . 2. The subscription must be made in the presence of the attest- ing witnesses, or be acknowledged by the testator to them . . . ; 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and 4. There must be two attesting witnesses, each of whom must sign the same as a 688 COMMENTARIES ON THE LAW OF "WILLS. held by a divided court that a will attested and sub- scribed by one witness in the forenoon and by another in the afternoon, the testatrix subscribing her name be- fore the first and acknowledging her signature before the second witness, was invalid since the witnesses did not sign their names in the presence of each other.^ § 506. Attestation Clause Not Essential to the Validity of the Will. An attestation clause appended to a will is useful as proof, as will be hereafter shown, that the will was duly executed and that all formalities were complied with,^ but it is no part of the execution of a will and is not essential to its validity.* The attestation clause may consist of the single word "witness,"® or "attest,"® or the witnesses may simply sign their names without any additional writing.'^ If the attestation clause is appended, it need not be on the same sheet of paper as the will if the sheets are so held together as to make one instru- witness, at the end of the will, at (In re Diener's Estate), 79 Neb. the testator's request and in his 569, 14 L. R. A. (N. S.) 259, 113 presence." N. W. 149; Taylor v. Brodhead, 5 2 In re Emart's Estate, (Cal.) Redf. (N. Y.) 624; In re Sizer's 165 Pac. 707. Will, 129 App. Div. 7, 113 N. Y. 3 See, ante, § 40, as to date and Supp. 210; In re De Hart's Will, attestation clause. 67 Misc. Rep. 13, 122 N. Y. Supp. 4 Roberts v. Phillips, 4 El. & 220. Bl. 450; Bryan v. White, 5 Bng. L. b Roberts v. Phillips, 30 Eng. L. & Eq. 579; Schofleld v. Thomas, & Eq. 147; Osborn v. Cook, 11 236 111. 417, 86 N. E. 122; Matter Cush. (Mass.) 532, 59 Am. Dec. of Hull, 117 Iowa 738, 89 N. W. 155; Murphy v. Murphy, 24 Mo. 979; Nixon V. Snellbaker, 155 Iowa 526. 390, 136 N. W. 223 ; Bla v. Ed- 6 Fatheree v. Lawrence, 33 Miss. wards, 16 Gray (Mass.) 91, 97; 585, 622. Avaro v. Avaro, 235 Mo. 424, 138 7 Bryan v. White, 5 Eng. L. & S. W. 500; Monroe v. Huddart Eq. 579. ATTESTATION AND SUBSCRIPTION. 689 ment.* A misnomer of the testator in tlie attestation clause will not affect the validity of the will.® § 507. Attestation Clause Is Prima Facie Evidence of Pacts Re- cited Therein. The attestation clause is prima facie evidence of the facts therein recited. The presumption of the due exe- cution of a will arises where there is an attestation clause reciting all the facts necessary to the validity of the will, and, in the absence of evidence discrediting such statements, the will should be admitted to probate.^" When a will contains an attestation clause reciting facts showing due compliance with all the statutory require- ments, the mere non-recollection of a witness in regard to the circumstances of its execution will not justify a jfinding that the statutory requirements have been dis- regarded.^^ For example, if the witnesses fail to prove 8 Bolton V. Bolton, 106 Miss. 84, v. Spier (In re Spier's Estate), 64 So. 967. 99 Neb. 853, L. R. A. 1916E, 692, In Tennessee wills of personal 157 N. W. 1016; Farley v. Farley, property need not be subscribed 50 N. J. Eq. 434, 26 Atl. 178; Bo- by witnesses. — Franklin v. Frank- gert v. Bateman, (N. J.) 65 Atl. lin, 90 Tenn. 44, 16 S. W. 557; 238; In re Sizer's Will, 129 App. State V. Goodman, 133 Tenn. 312, Div. 7, 113 N. Y. Supp. 210; Orser 181 S. W. 312, 318. V. Orser, 24 N. Y. 51, 55; Jackson 9 Monroe v. Huddart (In re v. Jackson, 39 N. Y. 153; Matter Diener's Estate), 79 Neb. 569, 14 of Cottrell, 91 N. Y. 329; In re L. R. A. (N. S.) 259, 113 N. W. Walker's Will, 67 Misc. Rep. 6, 149. 124 N. Y. Supp. 615. 10 Blake v. Knight, 3 Curt. Ecc. n Wright v. Sanderson, L. R. 9 547; Deupree v. Deupree, 45 Ga. Prob. Div. 149; Ela v. Edwards, 415; Underwood v. Thurman, 111 16 Gray (Mass.) 91; Rolla v. Ga. 325, 36 S. E. 788; Thompson Wright, 2 Demarest (N. Y.) 482; V. Owen, 174 111. 229, 45 L. R. A. Brinckerhoff v. Remsen, 8 Paige 682, 51 N. B. 1046; Barnes v. (N. Y.) 488, 499; s. c, Remsen v. Barnes,. 66 Me. 286; Ela v. Ed- Brinckerhoff, 26 Wend. (N. Y.) wards, 16 Gray (Mass.) 91; Spier 325, 37 Am. Dec. 251; In re Kel- I Com. on Wills — 44 690 COMMENTARIES ON THE LAW OF WILLS. that they were requested by the testator to sign the will as such but the attestation clause recites such a request, the recital supplies the defect in the testimony of the witnesses, especially where the will was executed in the presence of an attorney who signed as a witness, but being dead could not be called.^^ The effect of a state- ment in the attestation clause is to throw the burden of proving the contrary on the opponents of the will.^* § 508. Will May Be Established Against Testimony of Attest- ing Witnesses. A will may be established against the testimony of one or all the subscribing witnesses, if there be a full at- testation clause and the circumstances show the strong lum, 52 N. Y. 517; Wright's Es- tate, 67 How. Pr. (N. Y.) 117; Brown v. Clark, 77 N. Y. 369; Rugg V. Rugg, 83 N. Y. 592. "When the suhscribing wit- nesses are present at the probate and admit the genuineness of their signatures, but deny or are unable to recollect some or all of the facts which were attendant upon the execution, so that one or both of them are unable or un- willing to testify with positive- ness and of their own knowledge that all the requirements of the statute were complied with, a pre- sumption of due and proper execu- tion will arise from the recitals of a perfect attestation clause." — Spier V. Spier (In re Spier's Es- tate), 99 Neb. 853, L. R. A. 1916E, 692, 157 N. W. 1016. An attestation clause certifying to the due execution of the will in all the respects required by statute, including publication of the will In the presence of wit- nesses, is, taken with proof of the signatures of the witnesses, prima facie evidence of the matters therein asserted. — Bogert v. Bate- man, (N. J.) 65 Atl. 238. If there Is no proof that the will was duly acknowledged, the alle- gations in the attestation clause will be presumed to be true and will be accepted as ' proof that the will was duly acknowl- edged.— Will of Alpaugh, 23 N. J. Eq. 507. See, also, Barnes v. Barnes, 66 Me. 286; Newell v. White, 29 R. I. 343, 73 Atl. 798; Allaire v. Allaire, 37 N. J. L. 312. 12 Walsh V. Walsh, 4 Redf. (N. Y.) 165. 13 Wright V. Rogers, L..R. 1 P. & D. 678; Allaire v. Allaire, 37 ATTESTATION AND SUBSCRIPTION. 691 probability of a proper execution.^* In a case in New Jersey it was decided that the attestation clause being in due form and the will appearing on its face to have been properly executed, probate would not be refused because one of the subscribing witnesses testified that the tes- N. J. L. 312; Tappen v. Davidson, 27 N. J. Eq. 459 ; Mundy v. Mundy, 15 N. J. Eq. 290. 14 In re Holgate, 1 Sw. & Tr. 261; s. c, 5 Jur. N. S. 251; s. c, 29 Li. J. Prob. 161; Gwillam v. Gwillam, 3 Sw. & Tr. 200; s. c, 29 L. J. Prob. 31; Smith v. Smith, L. R. 1 P. & D. 143; In re Huck- vale, L. R. 1 P. & D. 375; Cham- bers V. Queen's Proctor, 2 Curt. 415; In re Hare, 3 Curt. 54; Gove V. Gawen, 3 Curt. 151; Blake v. Knight, 3 Curt. 547, 549; Pennant V. Kingscote, 3 Curt. 642; Cooper V. Bockett, 3 Curt. 648; Goodtitle v. Clayton, 4 Burr. 2224; Bayliss v. Sayer, 3 Notes of Cas. 22; Lowe V. JoUiffe, 1 Black. W. 365; Rex V. Nueys, 1 Black. W. 416; Pike V. Badmering, cited in Rice V. Oatfield, 2 Strange 1096, a dic- tum of Lord Mansfield in Wind- ham V. Chetwynd, 1 Burr. 414; Keating v. Brooks, 4 Notes of Cas. 253; In re Noyes, 4 Notes of Cas. 284; In re Attridge, 6 Notes of Cas. 597; Burgoyne v. Showier, 1 Rob. Ecc. 5; Brenchley v. Still, 2 Rob. Ecc. 162; Bennett v. Sharp, 1 Jur. N. S. 456; Cregreen v. Wil- loughby, 6 Jur. N. S. 590; Thomp son V. Hall, 16 Jur. 1144; s. c. 2 Rob. Ecc. 426; Farmer v. Brock, 1 Deane & Sw. 187; s. c, 2 Jur, N. S. 670; Foot v. Stanton, 1 Deane & Sw. 19; s. c, 2 Jur. N. S. 380; Underwood v. Thurman, 111 Ga. 325, 36 S. E. 788; Thompson V. Owen, 174 111. 229, 45 L. R. A. 682, 51 N. E. 1046; McCurdy v. Neall, 42 N. J. Eq. 333, 7 Atl. 566; In re Johnson's Will, 80 N. J. Eq. 555, 85 Atl. 254, 260; Jauncey v. Thome, 2 Barb. Ch. (N. Y.) 40, 45 Am. Dec. 424; Nelson v. Mc- Giffert, 3 Barb. Ch. (N. Y.) 158, 49 Am. Dec. 170; Auburn Semi- nary Trustees v. Calhoun, 25 N. Y. 422; Tarrant v. Ware, 25 N. Y. 425, n.; Rugg v. Rugg, 83 N. Y. 592; Matter of Pepoon's Will, 91 N. Y. 255; O'Hagan's Will, 73 Wis. 78, 9 Am. St Rep. 763, 40 N. W. 649. Compare: Leech v. Bates, 6 Notes of Cas. 699; Wright v. Rog- ers, L. R. 1 P. & D. 678; Webb V. Dye, 18 W. Va. 376. "The law is well settled that a will may be supported against the testimony of some, or even of all of the attesting witnesses. . . . Were the law otherwise any will might be defeated by a cor- rupt witness." — Newell v. White, 29 R. I. 343, 73 Atl. 798, quoting Will of Jenkins, 43 Wis. 610, 612, approved in Will of Meurer, 44 Wis. 392, 401, 28 Am. Rep. 591. 692 COMMENTARIES ON THE LAW OP WILLS. tator did not declare the paper to be his will and he thought did not acknowledge his signature, the circum- stances showing that this witness must have known that the instrument was a will, and his statements being con- tradicted by the testimony of the other witness and by another person who superintended the execution.^^ §509. Witnesses Dead, Out of State, or Can Not Remember: Value of Attestation Clause. If witnesses be dead or out of the state, proof of their handwriting is sufficient evidence of a compliance with the statute,^® although of course the presumption of due execution is clearly rebutted where it is shown by com- petent persons that the names of the ostensible witnesses are fictitious and are in the testator's own handwriting.^^ When the witnesses do not remember, the actual facts, such as signing in the presence of the testator, may be 15 McCurdy v. Neall, 42 N. J. Where three persons whose Eq. 333, 7 Atl. 566. names were appended to the at- When the attestation clause is testation clause all denied posi- duly filled out, it is entitled to "vely that they ever signed and ^ ^ ^, , two of them brought evidence to the presumption of truth and may show their presence elsewhere at be supported by the evidence of . the time of the execution of the one witness against that of two ^^.^^_ ^^^ ^^^^ nevertheless, al- other such witnesses.— Bloom v. ^^^^gj^ ^j^^^^ ^^^ ^ vigorous dis- TerwiUiger, 78 N. J. Eq. 221, 78 genting opinion, declined to order Atl. 742. a, new trial after judgment follow- The New Jersey rule as to at- Ing a verdict sustaining the will, testations is that where it is, at — Newell v. White, 29 R, I. 343, most, doubtful from the evidence 73 Atl. 798. whether the statements of the at- 16 Chase v. Kittredge, 11 Allen testation clause are true, the (Mass.) 49, 87 Am. Dec. 687; Nick- presumption that the facts were erson v. Buck, 12 Cush. (Mass.) in accordance with its recitals is 332, 344; Bla v. Edwards, 16 Gray not overcome. — Tappen v. David- (Mass.) 91. Eon, 27 N. J. Eq. 459. 17 In re Lee, 4 Jur. N. S. 790. ATTESTATION AND SUBSCraPTION. 693 established by circumstantial evidence.^* If the witnesses can not remember whether or not there was an actual acknowledgment, a declaration by one of them that it was his custom never to attest an instrument without hearing it acknowledged is good evidence for the jury;^* and it may be established by the testimony of one attest- ing witness in opposition to the other, the presumption being in favor of publication.^" It is essential in good pleading to aver that the will was signed and published by the testator in the presence of the required number of witnesses.^^ § 510. The Same Subject: Although Testator Signed by Mark. Although the testator signed by mark and both the attesting witnesses are dead at the time the will is offered for probate, the genuineness of the signatures of the witnesses being proved and the attestation clause show- ing that all formalities have been complied with, there being no evidence to the contrary, the attestation clause is accepted as true and the will is entitled to probate.^^ 18 Sutton V. Sutton, 5 Har. 22 In re Corcoran's Will, 145 (Del.) 459; Pate's Admr. v. Joe, App. Dlv. 129, 129 N. Y. Supp. 165. 3 J. J. Marsh. (26 Ky.) 113, 116; Although, in the case of a will Lawyer v. Smith, 8 Mich. 411, 77 executed by mark, the attestation clause, regular in other respects, may fail to contain the words "to be his last will and testament," 19 Hughes V. Hughes' Exr., 31 ^^^^^ ^^^^^^ ^^^^ ^^^ instrument Ala. 519; Pate's Admr. v. Joe, 3 ^^^ ^.^^^^^ ^^^j^^^ published, and J. J. Marsh. (26 Ky.) 113; Lawyer ^^^,^^^^ ^^ ^^^ ^^^^^^^^. .^ ^^ V. Smith. 8 Mich. 411. 77 Am. Dec. ^^^^.^^ ^^^ instrument for pro- ■*°*'- bate the attesting witnesses tes- 20 Auburn Seminary Trustees v. jjfy that the testator did so Calhoun, 25 N. Y. 422. declare, probate should not be 21 Morehouse v. Cotheal, 21 denied. — Bowe v. Naughton, (N. J. N. J. L. 480. Eq.) 67 Atl. iSi, Am. Dec. 460; Transue v. Brown. 31 Pa. St. 92. 694 COMMENTARIES ON THE LAW Ui' \,ILLS. § 511. Will Regular on Its Face Presumed to Have Been Duly Executed. If the attesting witnesses are dead or can not be pro- duced or their memories have failed as to the transaction either wholly or in part, when a will regular on its face is offered for probate, proof of the fact of execution begets the presumption that all statutory requirements were fulfilled, whether so stated in the attestation clause or not, unless the contrary be shown.^* Where there is every appearance on the face of the paper that it was duly executed and the conduct of the testator showed an anxious and intelligent desire to do everything regu- larly, the presumption omnia rite esse acta is not re- butted by the evidence of the witnesses who appeared to have been nervous and confused on the occasion of the attestation, and whose recollection of what took place was evidently imperfect.^* If the circumstances afford a basis for belief that the will was duly executed, probate 23 Croft V. Pawlet, 2 Strange fee v. Baptist Missionary Conven- 1109; Hands v. James, 2 Comyns tlon, 10 Paige (N. Y.) 85, 40 Am. 531; In re Dickson, 6 Notes of Dec. 225; Clarke v. Dunnavant, 10 Cas. 278; Trott v. Trott, 29 Law Leigh (Va.) 13, 22. J. Prob. 156; s. c, 6 Jur. N. S. 24 Wright v. Sanderson, L. R. 9 760; In re Luffman, 5 Notes of Prob. Div. 149. Cas. 183; In re Johnson, 2 Curt. The fact that some of the wit- 341; In re Seagram, 3 Notes of nesses can not recall what oc- Cas. 436; In re Mustow, 4 Notes curred at the time of the execu- ot Cas. 289; Deupree v. Deupree, tion of the will is not sufficient 45 Ga. 415; Barnes v. Barnes, 66 to refuse probate where there are Me. 286; Eliot v. Eliot, 10 Allen enough circumstances and testi- (Mass.) 357; Chase v. Kittredge, mony aside from their's to justify 11 Allen (Mass.) 49, 87 Am. Dec. the inference that the will was 687; Nickerson v. Buck, 12 Cush. properly executed. — Tyler's Es- (Mass.) 332, 344; Bla v. Edwards, tate, 121 Cal. 405, 409, 53 Pac. 16 Gray (Mass.) 91; Fatheree v. 928; In re Johnson's Estate, 152 Lawrence, 33 Miss. 585, 622; Chaf- Cal. 778, 93 Pao. 1015; Allison v. ATTESTATION AND SUBSCKIPTION. 695 may be allowed against the testimony of all the attesting witnesses, or on the testimony of one as against the others.*® "When it appears from the evidence that the sig- nature to a will is the genuine signature of the testator and that the attesting witnesses subscribed in his pres- ence, a prima facie case is made in favor of the due execution of the will; and this prima fade case is not overcome by the mere fact that the subscribing witnesses testify that they failed to notice whether or not the will was signed.** §512, The Same Subject: Conflicting View. On the other hand, it has been held that where there is no formal attestation clause and no affirmative evidence that at the time of attestation the decedent's name had been signed to the instrument proposed as his will, the mere fact that it had been produced to the witnesses and Allison, 46 111. 61, 92 Am. Dec knowledge and approval." — In re 237; Cilley v. Cllley, 34 Me. 162, Lillibrldge's Estate, 221 Pa. St. 5, 164; Barnes v. Barnes, 66 Me. 286; i28 Am. St. Rep. 723, 69 Atl. 1121. Patton V. Hope, 37 N. J. Eq. 522, js In re Miller's Estate, 37 527; Rugg v. Rugg, 83 N. Y. 592. ^^^^ ^^^^ g^ p^^ 335 . ^.^^^^ ^_ "When an instrument speaks for itself, and by its terms is a testamentary disposition of prop- erty, if legal proof be furnished of its execution, the law will pre- sume that the maker signed it Burden is on person attacking understandingly and that he in- » ^i"' that has been admitted to tended it as his will."-ln re LiUi- Probate, to show lack of due pub- bridge's Estate, 221 Pa. St. 5, 128 Ucation.-Smith t. Ryan. 136 Iowa Am. St. Rep. 723, 69 Atl. 1121. 335, 112 N. W. 8. "Both these witnesses say that 26 Thompson v. Karme, 268 111. their attestation was in the pres- 168, 108 N. E. 1001. See, also, ence of the testator. The law will Gould v. Chicago Theological Sem- presume that It was with his inary, 189 111. 282, 59 N. E. 536. Nesler, 76 N. J. Eq. 574, 79 Atl. 425; In re Marley's (or Morley) Estate, 140 App. Div. 823, 125 N. Y. Supp. 886. 696 COMMENTARIES ON THE LAW OF WILLS. that they had been requested to sign it is not in itself suf- ficient to justify the feourt in drawing the inference that it had already been signed by the deceased.^'' It has also been ruled that whether the attestation clause recites it as a fact or not, if the point is raised that the will was not signed in the presence of the testator, clear proof of compliance with that formality will be required.^^ And "if on examining all the witnesses and considering the attending circumstances, a reasonable doubt remains whether one or more of the directions of the statutes have not been omitted, the probate must be refused, al- though it may appear probable that the paper expresses the testator's intentions."^® In a late case it was said that ' ' If there be a reasonable doubt whether any one of the requirements of the statute has been complied with, probate must be denied" ; this in a case where a will was rejected because nothing had been said by the testator to the witnesses which had any reference to his subscription of the paper.*** § 513. Due Execution a Question of Pact. The question of the due execution of a will is one of fact to be determined by the court or jury upon the evi- dence presented, and if determined by a jury on con- 27 Pearson v. Pearson, L. R. 2 202; Doe v. Davies, 9 Q. B. 648; P. & D. 451; Fischer v. Popham, Hitch v. Wells, 10 Beav. 84. L. R. 3 P. & D. 246. 29 Noding v. Alliston, 2 Eng. L. Compare: Cooper v. Bockett, 3 & Eq. 594; Chaffee v. Baptist Mis- Curt. 648. sionary Convention, 10 Paige Contra: Thompson v. Karme, (N. Y.) 85, 40 Am. Dec. 225; Tar- 268 111. 168, 108 N. B. 1001. rant v. Ware, 25 N. Y. 425, n. 429. 2SBrice v. Smith, Willes 1 Hands v. James, Comyns 531 Croft T. Pawlet, 2 Strange 1109 30 In re Noyes' Estate, 40 Mont. 178, 105 Pac. 1013. See, also, In re Harris' Will, 1 Rancliff v. Parkyns, 6 Dow 149, Tucker (N. Y.) 293. ATTESTATION AND SUBSCRIPTION. 697 flicting testimony it is not open to question if supported by substantial evidence.*^ When the question of execu- tion has been submitted to the jury, the court may not instruct the jury to find that the instrument is not en- titled to probate.*^ Compare: In re Harder's Will, 32 In re Gray's Estate, 88 Neb. 1 Tucker (N. Y.) 426. S35, Ann. Cas. 1912B, 1037, 33 31 Gilbert v. Griffith, (Ky.) 12» L. R. A. (N. S.) 319, 130 N. W. S. W. 1104. r46. CHAPTER XX. EBVOCATIOlSr AND AliTEEATIOlT. § 514. Statutory regiilations. § 515. Statutes regarding revocation are not retroactive. § 5l6. Eevocation by parol generally prohibited. § 517. Right and meaning of revocation. § 518. Mental capacity necessary : Act and intent must con- cur. § 519. "What mutilation constitutes revocation: Surreptitious preservation of fragments. § 520. Lines drawn across the will. § 521. Burning : Intention to bum insufficient. § 522. Destruction by third person : Direction of testator. § 523. Partial revocation : Authorized under the statutes of some jurisdictions. § 524. The same subject : Evidence of intention may be shown. § 525. Revocation by will or other writing. § 526. Revocation by later inconsistent will. § 527. "Wills, partially inconsistent, construed together. § 528. The same subject: Ambiguous expressions. § 529. Revocation of will does not necessarily revoke a codicil thereto. § 530. Revocation of codicil does not revoke will. § 531. Nature and execution of subsequent writing revoking wiU. § 532. The same subject. § 533. Implied revocation. § 534. The same subject: Illustrations. § 535. Implied revocation by marriage and birth of issue : Com- mon law rule. (698) REVOCATION AND ALTERATION. 699 § 536. Will of feme sole revoked by her marriage. § 537. Implied revocation by marriage : Regulations in the United States. § 538. The same subject. § 539. Implied revocation from birth of issue. § 540. Implied revocation from void conveyance. § 541. Alteration of circumstances as implying revocation, § 542. Sale of property devised, as affecting revocation. § 543. Agreements to convey property devised, effect of. § 544. Implied revocation from alteration of estate generally. § 545. The same subject. § 546. Intent to revoke, without the performance of some act, is insufficient. § 547. Acts alone do not work a revocation unless the intent to revoke exists. § 548. Evidence of intention to revoke. § 549. The same subject. § 550. Presumption as to intention to revoke : Burden of proof. § 551. The same subject : Lost wills. § 552. Revocation made in contemplation of a new disposition. § 553. The same subject. § 554. General effect of revocation. § 555. "Will revoked by subsequent will not revived by revoca- tion of latter: English rule. §556. The same subject: Rule in the United States: Conflict- ing decisions. § 557. The same subject. § 558. Alterations and interlineations : Presumed to have been made after execution. § 559. . The same subject : As to revocation. § 560. The same subject: Alterations disregarded: Originsl will deciphered if possible. §561. The same subject: When made by a stranger, or inter- ested party. 700 COMMENTARIES ON THE LAW OP WILLS. § 514. Statutory Regulations. Prior to the Statute of Frauds, 29 Charles II, ch. 3, wills in England could be revoked without writing, ex- press words only being necessary.^ By that statute it was enacted that "no devise in writing of lands, tene- ments and hereditaments, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing, or obliterating the same by the testator himself, or in his presence and by his direc- tion and consent. " As to such other will, codicil or other writing which declared a revocation of a former testa- ment, the statute required that it be " signed in the pres- ence of three or four witnesses. -'^ As to wills of person- alty, the Statute of Frauds prescribed that neither such a will nor any clause or bequest therein should be re- pealed or altered by any words, or will by word of mouth only, except the same, in the lifetime of the testator, be committed to writing, be read to the testator after the writing thereof, and be allowed by him, and be proved to be so done by at least three witnesses.^ The language of the Victorian statute, as to both real and personal property, is that no will or codicil, or any part thereof, shall be revoked (not including revocation because of marriage, etc.) otherwise than by another 1 Cranvel v. Sanders, Cro. Jao. As to Pennsylvania, see Lawson 497. See, also. Ex parte Ilchester, v. Morrison, 2 Dall. (Pa.) 286, 2^8, 7 Ves. Jun. 348; Richardson v. 1 L. Ed. 384, 1 Am. Dec. 288. Barry, 3 Hagg. Ecc. 249. 2 Statute of 29 Charles H, ch. 3, This same rule prevailed In § 6. Connecticut prior to the year 1821. 3 Statute of 29 Charles. 11, ch. 3, — Card v. Grinman, 6 Conn. 164. S 22. EEVOCATION AND ALTERATION. 701 will or codicil, executed according to the formalities re- quired for the execution of wills, or by some writing de- claring an intention to revoke the same, executed in like manner, or by the burning, tearing, or otherwise destroy- ing the same by the testator, or by some person in his presence and by his direction, with the intention of re- voking the same.* With some modifications the provi- sions of these statutes have been generally adopted in the United States and in its territories.*^ In many states it is specially provided that the enactments concerning revocation by destroying or by subsequent will are not to the exclusion of the revocation implied in law from a change in the condition and circumstances of the tes- tator.® 4 statute of 1 Victoria, ch. 26, §20. Note the omission of the word "canceling" used in the Statute of Frauds; for the effect of which, see Stephens v. Taprell, 2 Curt. 458. 4a See synopsis of statutes. Ap- pendix, this volume. Thirty-three states and terri- tories omit the words "and con- sent." Rhode Island, New York, Maryland, and Florida follow ex- actly the words of the phrase "by his direction and consent." In Delaware the canceling acts may be performed by another in the absence of the testator, if in accordance with his express direc- tion. The statutes of Ohio, Kan- sas, and Nevada make the alter- native "either in his presence or by his direction," while the codes of Georgia and Iowa are silent on the point of presence, requiring simply that the cancelation be by the testator's direction. — Stim- son's Am. Stat. Law, § 2672, A, B. When the will is destroyed by another the fact of the destruc- tion, with the consent or direction of the testator, must be proved by at least two witnesses in Alabama and Arkansas, and a similar pro- vision is found in the statutes of New York, California, Oregon, Da- kota, Montana and Utah. — Stim- son's Am. Stat. Law, § 2672 C. In Iowa, when the revocation is by cancelation, it must be wit- nessed in the same manner as the making of a new will. — Iowa Code, 1897, § 3276. 5 See synopsis of statutes. Ap- pendix, this volume. 702. COMMENTARIES ON THE LAW OF WILLS. § 515. Statutes Regarding Revocation Are Not Retroactive. A statute regulating the revocation of wills does not extend to a will revoked before its enactment.® Accord- ingly it has been decided that the passage of a statute to the effect that "marriage shall be deemed a revocation of a prior will" was prospective in effect, and did not apply to marriages prior to its enactment.'^ So, also, where a statute requires the revocation of a will to be accompanied by the same formalities necessary to execu- tion, it is sufficient if it be done with the formalities requi- site to make a will at the time the will was executed.® § 516. Revocation by Parol Generally Prohibited. The modern doctrine is that a written will can not be revoked by parol, and statutes to that effect are in force in most of the states of the Union." Nor can a will in writing be revoked by a nuncupative will, where revoca- tion must be executed with the same formalities as are required for the will which it seeks to revoke.^" In Colo- rado it is enacted that no will duly executed may be 6 Sherry v. Lozler, 1 Bradf. Iowa 520; Wittman v. Goodliand, (N. Y.) 437. 26 Md. 95; Reid v. Borland, 14 Tin re Tuller's Will, 79 111. 99, Mass. 208; Stickney v. Hammond, 22 Am. Rep. 164. 138 Mass. 116; Mundy v. Mundy, 8 Sherry v. Lozier, 1 Bradf. 15 N. J. Eq. 290; Jackson v. Knif- (N. Y.) 437. fen, 2 Johns. (N. Y.) 31, 3 Am. 9 Woodruff V. Hundley, 127 Ala. Dec. 390; Helse v. Heise, 31 Pa. 640, 85 Am. St. Rep. 145, 29 So. 98; St. 246, 249; Kirkpatrick v. Jen- In re Olmstead's Estate (01m- kins, 96 Tenn. 85, 33 S. W. 819; stead V. Buss), 122 Cal. 224, 54 Ladd's Will, 60 Wis. 187, 50 Am. Pac. 745; Goodsell's Appeal, 55 Rep. 355, 18 N. W. 734. Conn. 171, 10 Atl. 557; Coffee v. See, ante, § 188. Coffee, 119 Ga. 533, 46 S. E. 620; lo McCune's Devisees v. House, Taylor v. Pegram, 151 111. 106, 37 8 Ohio 144, 31 Am. Dec. 438; N. E. 837; Perjue v. Perjue, 4 Brook v. Chappell, 34 Wis. 405. REVOCATION AND ALTERATION. 703. annulled by spoken words. In Florida, a will of personal property may be revoked by parol, if the words be com- mitted to writing in the testator's lifetime and be read to him and allowed by him, and these facts be proven by three witnesses. In Tennessee no will can be revoked or altered by subsequent spoken words, unless they be re- duced to writing and read over to the testator and ap- proved by him, and these circumstances be proven by two competent witnesses. Substantially similar provi- sions are made in New Jersey, with the additional re- quirement of one more witness. But in New Jersey, it is only wills of personalty that may be thus revoked by parol." § 517. Right and Meaning of Bevocation. The term "revocation," as applied to wills, means the act, coupled with the intent, by which the maker causes the instrument to lose all force or effect. "Wills are am- bulatory, effective only at the death of the testator, and in their very nature revocable.^^ Wherever wills can be made, they can be revoked, although various jurisdictions prescribe different formalities on the subject.^* §518. Mental Capacity Necessary: Act and Intent Must Con- cur. In order that any act of revocation may be effectual, the testator must at the time of performing it be in pos- 11 See synopsis of statutes, Ap- isBnnis v. Smith, 14 How. (55 pendlx, this volume. XJ. S.) 400, 419, 14 L. Ed. 472. 12 Verdier v. Verdier, 8 Rich. L. See, ante, §i 80-90, as to revoca- (S. C.) 135; Dicks v. Cassels, 100 tion of joint, mutual or reciprocal S. C. 341, 84 S. E. 878. See, ante, wills. § go. See, ante, §§ 119-126, as to revo- cation of duplicate wills. 704 COMMENTAEIES ON THE LAW OP WILLS. session of his faculties and capable of maJdng a will. The same degree of mental capacity is required to re- voke a will as to make one.^* There must also exist the intention to revoke; this is an essential element. The act of revocation alone is insufficient; there must be a concurrence of act and intent." A will executed when the testator is under undue influence is ineffectual as an act of revocation.^^ When a testator, not permanently- insane at the time, tears a will while laboring under an excitement which incapacitates him from forming or hav- ing a reasonable or intelligent intention of revocation, his act will not revoke the instrument.^'' The destruction of the will by the testator in a fit of temporary insanity is not a revocation.^* If an insane testator tear his will, it must be shown affirmatively that he did so during a lucid interval, or it will not effect a revocation.^® If torn under misapprehension and the wiU is thereafter pasted together, it will be admitted to probate.*" 1* Rhodes v. Vinson, 9 Gill it Forman's Will, 54 Barb. (Md.) 169, 52 Am. Dec. 685; Rich (N. Y.) 274; s. c, 1 Tuck. (N. Y.) V. Gilkey, 73 Me. 595; Smith v. 205. Walt, 4 Barb. (N. Y.) 28; Ford See, also, Collagan v. Burns, 57 V. Ford, 7 Humph. (Tenn.) 92. Me. 449; Clark's Will, 1 Tuck. See, ante, ch. 14, §§ 326-355, as (N. Y.) 445. to mental capacity necessary to is Scruby v. Fordham, 1 Ad- make a will. dams Ecc. 74; Brunt v. Brunt, 15 Throckmorton v. Holt, 180 L. R. 3 P. & D. 37; In re Downer, TJ. S. 552, 586, 45 L. Ed. 663, 21 IS Jur. 66; In re Shaw, 1 Curt Sup. Ct. 474; Burton v. Wylde, 905; Borlase v. Borlase, 4 Notes 261 III. 397, 103 N. B. 976; Smith of Cas. 106, 139; In re Lang, 65 V. Runkle, (N. J.) 97 Atl. 296, Cal. 19, 2 Pac. 491; Forbing v. affirmed. (N. J.) 98 Atl. 1086; God- Weber, 99 Ind. 588. ley V. Smith, (N. J.) 98 Atl. 1085; 1 9 Harris v. Berrall, 1 Sw. & Tr. Smith V. SchoeHeld, (N.J.) 98 Atl. 153; Sprigge v. Sprigge, L. R. 1 1087. P. & D. 608. 16 O'Neall V. Farr, 1 Rich. L. 20 Goods of Thornton, L. R. 14 (S. C.) 80. Prob. Div. 82. REVOCATION AND ALTERATION. 705 § 519. What Mutilation Constitutes Revocation : Surreptitious Preservation of Fragments. A common method of revoking wills is by obliteration, mutilation, or cancellation.^^ The burning, tearing, can- celling, or otherwise destroying of any material part, such as the name of a devisee,^^ or the signature of the testator,23 or of the attesting witnesses,^* will effect the revocation of a will. Where a will is signed several times, the last signature being the efficient one, an erasure of it works a revocation.^® The phrase "otherwise destroy- ing" embraces any act similar in nature to burning and tearing, by which the substance of the will is destroyed, or its contents effaced.^" Tearing has been held to include cutting.^'' The slightest mutilation or burning even of an 21 Smith V. Runkle, (N. J. Pre- rog.) 97 Atl. 296, affirmed, (N. J.) 98 Atl. 1086; Godley v. Smith, (N. J.) 98 Atl. 1085; Smith v. Schoefleld, (N. J.) 98 Atl. 1087. 22 Mence v. Mence, 18 Yes. Jun. 348, 350. See, also, Martins v. Gar- diner, 8 Sim. 73. 23 Hobbs V. Knight, 1 Curt. 708; lu re Gullan, 1 Sw. & Tr. 23 ; s. c, 27 Li. J. Prob. 15; In re Lewis, 1 Sw. & Tr. 31; s. c, 27 L. J. Prob. 31; Williams v. Jones, 7 Notes of Gas. 106; In re Simpson, 5 Jur. N. S. 1366; Bell v. Fothergill, L. R. 2 P. & D. 148; Youse v. Forman, 5 Bush. (68 Ky.) 337. 24 In re Dallow (Evans v. Cal- low), 31 L. J. Prob. 128; Birkhead V. Bowdoin, 2 Notes of Cas. 66; Abraham T. Joseph, 5 Jur. N. S. 179. See, also. In re James, 7 Jur. N. S. 52. I Cora, on Wills — 45 25 In re Gullan, 1 Sw. & Tr. 23; s. c, 27 L. J. Prob. 15; s. c, 4 Jur. N. S. 196; Gullan v. Grove, 26 Beav. 64. See, also, Christmas V. Whinyates, 3 Sw. & Tr. 81, 32 L. J. Prob. 73. 26 Hobbs V. Knight, 1 Curt. 768, 779; In re Beavan, 2 Curt. 369; In re Horsford, L. R. 3 P. & D. 211; In re Dyer, 5 Jur. 1016; In re Fary, 15 Jur. 1114; In re Rose, 4 Notes of Cas. 101; In re Brew- ster, 29 L. J. Prob. 69; s. c, 6 Jur. N. S. 56. 27 Hobbs v. Knight, 1 Curt. 768; In re Cooke, 5 Notes of Cas. 390; Clarke v. Scripps, 16 Jur. 783; s. c, 2 Rob. Bcc. 563; Burton v. Wylde, 261 111. 397, 103 N. E. 976. But "otherwise destroying" has been held not to embrace "cancel- ing." — Stephens v. Taprell, 2 Curt. 458. 706 COMMENTABIES ON THE LAW OF WILLS. unnecessary part, accompanied by other evidence of an intention to revoke, has been considered sufficient.^^ Ac- cordingly, it has been held that although a seal is not required, if a testator tears it off with the intent to re- voke, it will amount to a revocation of the will.^^ But such slight mutilation in itself is not sufficient to work a revocation unless there is other evidence to show the in- tent to revoke; and if such evidence is lacking and the instrument as a whole has not been affected by the muti- lation, the will stands.*" If a portion only was designedly 28 Dan V. Brown, 4 Cow. (N. T.) 483, 15 Am. Dec. 395; Jackson v. Betts, 6 Cow. (N. Y.) 377; John- son V. Brailsford, 2 Nott & McC. (S. C.) 272, 10 Am. Dec. 601; Slaughter v. Stephens, 81 Ala. 418, 2 So. 145; Woodruff v. Hundley, 127 Ala. 640, 85 Am. St. Rep. 145, 29 So. 98; Burton v. Wylde, 261 111. 397, 103 N. E3. 976; Avery v. Pixley, 4 Mass. 460; Lovell v. Quitman, 88 N. Y. 377, 42 Am. Rep. 254. Under the New York statute a will is not partially revoked by burning, tearing, canceling, oblit- erating or destroying a portion of it.— In re Hildenbrand's Will, 87 Misc. Rep. 471, 150 N. Y. Supp. 1067; In re Kent's Will, 89 Misc. Rep. 16, 152 N. Y. Supp. 567. A will may be revoked by marks made upon it, if they are made with the intention to cancel it. — Pyle V. Murphy, 180 111. App. 18. 29 Price V. Powell, 3 Hurl. & N. 341; Williams v. Tyley, John. 530; Avery v. Pixley, 4 Mass. 460. In New York it has been ruled that a partial obliteration will not effect a revocation under a stat- ute requiring that the will be "burnt, torn, canceled, obliterated, or destroyed." — Lovell v. Quitman, 88 N. Y. 377, 42 Am. Rep. 254; s. c, 25 Hun (N. Y.) 537. 30 Hobbs V. Knight, 1 Curt. 768; Bell V. Fothergill, L. R. 2 P. & D. 148; In re Lewis, 1 Sw. & Tr. 31, 27 L. J. Prob. 31; Giles v. War- ren, L. R. 2 P. & D. 401; Brown's Will, 1 B. Mon. (Ky.) 56, 35 Am. Dec. 174; Avery v. Pixley, 4 Mass. 460; Lovell v. Quitman, 88 N. Y. 377, 42 Am. Rep. 254. In order to accomplish the revo- cation of a will by total or par- tial destruction, it is necessary that the act and intention to re- voke concur. — Burton v. Wylde, 261 111. 397, 103 N. E. 976; In re Sheaffer'a Estate, 240 Pa. St. 83, 87 Atl. 577. Revocation of a will by cancela- tion, obliteration or destruction re- quires the concurrence of both the EEVOCATION AND ALTERATION. 707 destroyed, it may work a revocation of that part only.^^ But the mere obliteration of words on the envelope or covering of a will is not sufQ,cient to work a revocation.*^ Surreptitious preservation of the fragments of a will which the testator mutilated in his attempt to destroy the same, although pasted together or in such a condition as to be perfectly legible, will not give the instrument valid- ity as a will;^* and the same rule applies where revo- cation by destruction is fraudulently prevented.** § 520. Lines Drawn Across the Will. Drawing lines across a will has been said to be an equivocal act that might be explained by circumstances.*^ For example, cancellation by pencil is presumed to be deliberative only, and to be effective must be shown to have been intended to be final.*® But if it be done with the animus revocandi, pencil lines drawn by the testator across his signature, although leaving the name still legible, have been held sufficient tmder a statute providing mutilation as one of the modes of revocation.*'' Where all but four of some twenty legacies, the clause appointing executors, and the testator's name were cancelled by pen marks, and in the margin were several additions in the testator's handwriting supposed to be designed for a new will, it was decided that the will was revoked.** If, physical act and the intention to 34 Doe d. Reed v. Harris, 6 Ad. revoke. — Wellboni's Will, 165 & El. 209. N. C. 636, 81 S. B. 1023. S5 Bethell v. Moore, 19 N. C. 311. 31 Clarke v. Scripps, 2 Rob. Ecc. 36 In re Hall, L. R. 2 P. & D. 563. 256; Mence v. Mence, 18 Ves. Jun. 32Grantley v. Garthwaite, 2 348; Francis v. Grover, 5 Hare 39. Russ. 90. 37WoodfilI V. Fatten, 76 Ind. 33 White V. Casten, 46 N. C. 197, 575, 40 Am. Rep. 269. 59 Am. Dec 585; Sweet v. Sweet, 38Muh's Succession, 35 La. Ann. 1 Redf. (N. Y.) 451. 394, 48 Am. Rep. 242. 708 COMMENTARIES ON THE LAW OF WILLS. however, the statute regarding revocation requires a can- cellation to be witnessed in the same manner as a will, a scroll drawn through the testator's signature does not cancel the will, and the evidence that the testator de- clared that he had revoked his will, is not admissible.^* §521. Burning: Intention to Bum Insufficient. Where the maker of a will threw it upon the fire with the intent to revoke, and it was burned through in three places, this was considered a revocation, although the writing remained intact, and although it was rescued and preserved without the knowledge of the testator.*" If the testator intends to revoke his will, but through mis- take or the fraud of others he bums the wrong docu- ment under the belief that it is his will, and he never discovers the mistake, his act amounts to a revocation.*^ It is held that there must be some burning, although slight, or a strong intention to bum would be insuffi- cient;*^ but where the will was crumpled and partially- torn, then thrown on the fire but fell off and was surrep- titiously preserved, the document was denied probate.*' § 522. Destructioii by Third Person : Direction of Testator. A destruction of a will by another at the testator 's di- rection must be made in his presence, both under the act of 1 Victoria, ch. 26, and the Statute of Frauds. There- fore, the testator can not revoke his will by authorizing 39 Gay V. Gay, 60 Iowa 415, 46 42 Doe d. Reed v. Harris, 6 Ad. Am. Rep. 78, 14 N. W. 238. & El. 209. 40 White V. Casten, 46 N. C. 197, 43 Bibb d. Mole v. Thomas, 2 59 Am. Dec 585. Wm. Bl. 1043. This case was dls- 41 Smiley v. Gambill, 2 Head tlnguished in Doe d. Reed v. Har- (Tenn.) 164. rls, 6 Ad. & El. 209. EEVOCATION AND ALTEBATION. 709 any one to destroy it after his death;** and, if so de- stroyed, its contents may be proven aliunde.*^ Nor is a will revoked by the mere direction of the testator to a third person to destroy it, notwithstanding such person informs the testator that the will was so destroyed. The belief of the testator does not amount to a revocation, even though it was induced by fraud.*® But where the cus- todian of a will refused to comply with the testator's direction to bum his will, and the latter afterward acqui- esced, there was no revocation.*'^ A will fraudulently de- stroyed by a third person remains valid and, upon proof of its contents, may be admitted to probate.*^ But no fraud can be committed by any person assisting to de- stroy a will by the express direction of a testator in the full possession of his faculties; and it is not necessary that the acts of destruction should be performed in the presence of witnesses, the testator's presence alone being sufficient.*® However, cancellations ineffectual to revoke the will under the statute of 1 Victoria, eh. 26, may still have an effect upon its construction.^" 44 Stockwell V. Rltherdon, 6 47 Giles' Heirs v. Giles' Exrs., 1 Notes of Cas. 409, 414. N. C. 377, Cam. & N. Conf. (N. C.) 45 In re North, 6 Jur. 564. 174. 46 Doe d. Reed v. Harris, 6 Ad. 48 Voorhis v. Voorhis, 50 Barb. & El. 209; Estate of Silva, 169 (N. Y.) 119. Cal. 116, 145 Pac. 1015; Trice v. 49 Tlmon v. Claify, 45 Barb. SMpton, 113 Ky. 102, 101 Am. St. (N. Y.) 438. Rep. 351, 67 S. W. 377; Mundy v. so Twining v. Powell, 2 Colles Mundy, 15 N. J. Eq. 290; Tynan C. C. 262; Gann v. Gregory, 3 De V. Paschal, 27 Tex. 286, 302, 84 Gex M. & G. 777; Shea v. Bosch- Am. Dec. 619; Boyd v. Cook, 3 etti, 18 Beav. 321, 18 Jur. 6H. Leigh (Va.) 32. 710 COMMENTARIES ON THE LAW OP "WILLS. §523. Partial Revocation: Authorized Under the Statutes of Some Jurisdictions. The Statute of Frauds prescribed the formalities of revoking devises of real property, or "any clause thereof."®^ Under this act partial revocation was per- missible.^2 Section 20 of the statute of 1 Victoria, ch. 26, likewise provides for the revocation of a will or codicil, "or any part thereof," Wherever the statutes are simi- larly worded, any clause in a will may be revoked by cancellation, obliteration, and the like, without affecting the validity of the rest of the instrument, if it appear that the testator did not thereby intend to destroy the whole.^* Thus a fee simple has been reduced to a life estate by the testator cancelling the words "his heirs and assigns forever."^* Ink lines drawn by the testator through each word of a clause, and also diagonally through the whole clause, were held to cancel that part of the will; and, omitting the canceled part, the instru- ment was entitled to probate.^^ Where memoranda ap- peared in the margin of the will, opposite canceled lega- cies, which were signed by the testatrix with her name 51 statute of 29 Charles II, ch. 3, non, 67 Mo. App. 534, 537; Means § 6. T. Moore, Harper's L. (S. C.) 314. 52 Martins v. Gardiner, 8 Sim. Contra: Quinn v. Quinn, 1 73; Francis v. Grover, 5 Hare 39; Thomp. & C. (N. Y.) 437. Mence v. Mence, 18 Ves. Jun. 348, B4 Swinton v. Bailey, 1 Bcc. Div. 350; Roberts v. Round, 3 Hagg. 110; affirmed, in D. P. 48 L. J. Bcc. 548; Short v. Smith, 4 East (H. L.) Ecc. 57; Short d. Gastrell 419; Goods of Woodward, L. R. 2 v. Smith, 4 East 419; Larkins v. P. & D. 206. Larkins, 3 Bos. & P. 16; Sutton 53 Wolf V. Bollinger, 62 111. 368, v. Sutton, 2 Cowp. 812; In re Lam- 372; Hubbard v. Hubbard, 198 111. bert, 1 Notes of Cas. 131; In re 621, 64 N. E. 1038; Tudor v. Tu- Woodward, L. R. 2 P. & D. 206. dor, 17 B. Mon. (56 Ky.) 383; 55 Chinmark's Etetate, Myrick's Eschbach v. Collins, 61 Md. 478, Prob. (Cal.) 128. 48 Am. Rep. 123; Varnon v. Var- REVOCATION AND ALTERATION. 711 in one case and lier initials in another, and whicli stated that she wished to "erase" those parts, the will being found among her valuable papers a few hours after her death, the legacies were considered effectually revoked.^^ Partial revocation is not allowed under some statutes, the formalities of revocation applying to the entire instrument,'*'' but other jurisdictions, even under such statutes, hold partial revocation to be authorized.^^ §524. The Same Subject: Evidence of Intention May Be Shown. Whether a testator's tearing the paper on which his will is written operates as a revocation of the whole will or codicil, or of a single devise only, is a question of in- tention, to be gathered from all the circumstances.^^ Thus, where the testator tore his name from the foot of a codicil, and in so doing carried away some words in the body of the will on the reverse side, it was held that the codicil only was revoked.^" And where the testator cut his signature from his will, evidence was admitted to show that he intended to include in the revocation a codicil written at the foot of the will.®^ 56 In re Kirkpatrick's Will, 22 Atl. 1077; Blgelow v. Gillott, 123 N. J. Eq. 463. Mass. 102, 25 Am. Rep. 32. Compare: Gugel v. Vollmer, 1, 59 In re Cook's Will, 5 Clark Demarest (N. Y.) 484. (Pa.) 1. 57 Law V. Law, 83 Ala. 432, 3 So. Where a codicil specially re- 752; Lovell v. Quitman, 88 N. Y. vokes one portion of the will, the 377, 42 Am. Rep. 254; Quinn v. implied intention is that the rest Quinn, 1 Thomp. & C. (N. Y.) 437; of the will shall stand. — Blood- Matter of Alger's Will, 38 Misc. good v. Lewis, 209 N. Y. 95, 102 Rep. (N. Y.) 143, 77 N. Y. Supp. N. E. 610. 166. 60 In re Cook's Will, 5 Clark 58 Miles' Appeal, 68 Conn. 237, (Pa.) 1. 36 L. R. A. 176, 36 Atl. 39; Town- 61 In re Bleckley, L. R. 8 Prob. shend v. Howard, 86 Me; 285, 29 Div. 169. 712 COMMENTARIES ON THE LAW OP WILLS. The effect of a partial revocation is to throw the prop- erty disposed of by the canceled item in the general residue, unless there be evidence of a contrary inten- tion.«2 §525. Revocation by Will or Other Writing. A will may be revoked by the execution of ah instru- ment of revocation or cancellation; and this instrument may be a new will containing an express clause of revo- cation or an instrument of revocation alone which, under some statutes, need not be testamentary in character.^^ The statute requires that such will or other writing re- voking a former will or codicil must be executed with all the formalities required for the execution of wills. A former will, however, is not revoked by a second will which expressly affirms the first will; nor will the revo- cation of the second will, which affirms the validity of the first, operate to revoke the first will.^* Even an express revocation clause is not aways imperative. Its effect de- pends upon the intention of the testator as gathered from both instruments.®^ For example, it may be shown that a revocation clause was not intended to apply to a will made under a power of appointment.®® 62 Blgelow V. Gillott, 123 Mass. of Barnes' Will, 70 App. Div. 523, 102, 25 Am. Rep. 32. 75 N. Y. Supp. 373. 63 Brown v. Brown, 8 El. & Bl. 64 In re Danklefsen's Will, 171 876; Chestnut v. Capey, 45 Okla. App. Dlv. 339, 157 N. Y. Supp. 119. 754, 146 Pac. 589; Stevens V. Hope, 65 HoUingshead v. Sturgis, 21 52 Mich. 65, 17 N. W. 698; Cheever La. Ann. 450; Van Wert v. Bene- V. North, 106 Mich. 390, 58 Am. diet, 1 Bradf. (N. Y.) 114. St. Rep. 499, 37 L. R. A. 561, 64 66 In re Meredith, 29 L. J. Proh. N. W. 455; In re Cunningham, 38 155; In re Joys, 4 Sw. & Tr. 214, Minn. 169, 8 Am. St. Rep. 650, 36 30 L. J. Prob. 169; In re Merritt, N. W. 269; Marsh v. Marsh, 48 1 Sw. & Tr. 112, 4 Jur. (N. S.) N. C. 77, 64 Am. Dec. 598; Matter 1192; Hughes v. Turner, 4 Hagg. REVOCATION AND ALTERATION. 713 § 526. Revocation by Later Inconsistent Will. There need be no express words of revocation in a will in order to annul a previously executed testamen- tary disposition, if it devise or bequeath the same prop- erty to other beneficiaries, or make other inconsistfciit pro- visions.®'' The last will of a testator, being complete in itself and adequate to the disposition of the estate, is a revocation of all anterior wills, although no words of Eoc. 52; Denny v. Barton, 2 Phll- lim. 575. See, also, In re Eustace, L. R. 3 P. & D. 183. 67 In re Hough's Estate, 15 Jur. 943; Evans v. Evans, 17 Sim. 86, 107; Fownes-Luttrell v. Clarke, W. N., (1876) 168, 249; Hardwicke V. Douglas, 7 Clark & F. 795, re- versing Douglas V. Leake, 5 Law J. Ch. 25; Kermode v. Macdonald, L. R. 1 Eq. 457; Henfrey v. Hen- frey, 2 Curt. 468; Cottrell v. Cot- trell, L. R. 2 P. & D. 397; Clarke V. Ransom, 50 Cal. 595; Ludlum v. Otis, 15 Hun (N. Y.) 410; Burden's Estate, 11 Pliila. (Pa.) 130; Estate of Gensimore, 246 Pa. St. 216, 92 Atl. 134; Reese v. Probate Court of Newport, 9 R. I. 434. The Louisiana rule is that a later will does not necessarily re- voke a prior will, but that both are entitled to probate, unless the effect of the later is to revoke the former. — Succession of Lefort, 139 La. 51, 71 So. 215. A will may be effectively re- voked by an inconsistent disposi- tion of previously devised prop- erty.— Colvin V. Warford, 20 Md. 357; Johns Hopkins University v. Pinckney, 55 Md. 365; Joynes v. Hamilton, 98 Md. 665, 57 Atl. 25; Gardner v. McNeal, 117 Md. 27, Ann. Cas. 1914A, 119, 40 L. R. A. (N. S.) 553, 82 Atl. 988. If it can be ascertained from the face of a later will that it is intended as the last will of the testator, it will revoke prior wills, although there are no express words of revocation. — Aldrich v. Aldrich, 215 Mass. 164, 102 N. E. 487. Where the later will devises all the entire estate and so renders an earlier will nugatory, the effect of the later will is to revoke the iprior. — In re Sheldon's Estate, 158 App. Div. 843, 144 N. Y. Supp. 94; In re McMullen's Will, 95 Misc. Rep. 404, 159 N. Y. Supp. 98; Es- tate of Burke, 66 Ore. 252, 134 Pac. 11. The fact that a subsequent will does not dispose of the entire es- tate, will not prevent its revoca- tion of a prior will where there is an express clause of revocation- in the later will. — Estate of Ely, 74 Ore. 561, 146 Pac. 89. 714 COMMENTARIES ON THE LAW OF WILLS. revocation are used, and although the disposition of a large share of the property is by way of residuary devise. The legacies in the last will are considered sub- stitutional and not cumulative to those named in the first.^^ A codicil may by implication revoke the posterior of two wills by expressly referring to the prior, and rec- ognizing it as the actual will of the testator,*^ unless the earlier will has been destroyed by the testator.''* But a will is not revoked by a subsequent instrument which neither revokes it in express terms nor by implication f^ and where a later will is inconsistent in some of the pro- 68 In re Fisher, 4 Wis. 254, 65 Am. Dec. 309. See, also, Sim- mons V. Simmons, 26 Barb. (N. Y.) 68. 69 Walpole V. Orford, 3 Ves. Jur. 402; s. c, Walpole v. Cholmon- deley, 7 Term Rep. 138; Payne V. Trappes, 11 Jur. 854; s. c, 1 Rob. Bcc. 583; In re Chapman, 8 Jur. 902; s. c, 1 Rob. Bcc. 1; Crosbie v. Macdoul, 4 Ves. Jun. 610. A codicil to a will revokes the ■will to the extent necessary to give effect to the codicil. — McKin- stry V. Price, 263 111. 626, 105 N. B. 750. A codicil which provides for an additional legacy to come out of the residuary estate modifies and revokes the will to that extent. — Osburn v. Rochester Trust and Safe Deposit Co., 209 N. Y. 54, Ann. Cas. 1915A, 101, 46 L. R. A. (N. S.) 983, 102 N. E. 571. Where a codicil revokes a por- tion of the will in express terms. and gives a reason for the revoca- tion, the revocation will stand, notwithstanding the fact thai the purpose for which the revocation is made may fail; thus where the testator has revoked a residuary bequest, intending to give such bequest to charity, and the charity bequest fails because of the tes- tator's death within thirty days of the execution of the codicil, the codicil nevertheless stood as to the revocation of the residuary bequest. — In re Melville's Estate, 245 Pa. 318, 91 Atl. 679. 70 Hale V. Tokelove, 2 Rob. Ecc. 318; Rogers v. Goodenough, 2 Sw. & Tr. 342; Newton v. New- ton, 12 Ir. Ch. 118. 71 Inglefield v. Coghlan, 2 Colles C. C. 247; I^emage v. Goodban, L. R. 1 P. & D. 57; In re De la Saussaye, L. R. 3 P. & D. 42; In re Petchell, L. R. 3 P. & D. 153; Richards v. Queen's Proctor, 18 Jur. 540; Cutto v. Gilbert, 9 Moore P. C. C. 131; Freeman v. Freeman, REVOCATION AND ALTERATION. 715 visions, and not as to others, it operates as a revocation only so far as the inconsistency extends.''^ In some of the states it is provided by statute that a subsequent in- consistent will implies a revocation only so far as the in- consistency extends ; and any portion of the first which can stand without conflicting with the last remains un- revoked. Where the existing law distinguishes between the for- malities requisite for a bequest of personalty and a devise of realty, a will disposing of both classes of prop- erty may be revoked pro tanto by another instrument passing the personalty only, and executed only with such formalities as are necessary for a valid will of personal property J' After one will has been admitted to probate, if a later will be propounded which does not expressly revoke the former and there is any room for dispute as to its con- struction and effect as an implied revocation, the ques- tion can not be determined in proceedings for the probate of the latter J* 5 De Gex M. & G. 704; Goodright inson v. Smith, 13 Abb. Pr. (N. T.) V. Harwood, 3 Wils. (K. B.) 497; 359. Seymor v. Noswortliy, Hard. 374; In the event of a conflict be- Nelson v. McGifEert, 3 Barb. Ch. tween the provisions of a later (N. Y.) 158, 49 Am. Dec 170. will and an earlier will, wblch is 72 Taylor v. Kelly, 31 Ala. 59, not revoked in toto, the provisions 68 Am. Dea 150; Floyd v. Floyd, of the later will prevail. — Succes- 7 B. Mon. (46 Ky.) 290; Succes- sion of Lefort, 139 La. 51, 71 So. sion of Fisk, 3 La. Ann. 705; Car- 215. ter V. Thomas, 4 Greenl. (4 Me.) t3 Marston v. Marston, 17 N. H. 341; Wells v. Wells, 35 Miss. 638; 503, 43 Am. Dec. 611. Nelson v. McGiffert, 3 Barb. Ch. 74 Besancon T. Brownson, 39 (N. Y.) 158, 49 Am. Dec. 170; Rob- Mich. 388. 716 COMMENTARIES ON THE LAW OP WILLS. § 527. Wills> PartiaJlf Inconsistent, Construed Together, Inasmuch as a second will, not in terms revoking a for- mer will, operates as a revocation of the first only so far as it indicates a different intention as to the disposition of the same property,''^ wills not inconsistent with each other must be construed together, and all their provisions, so far as possible, be carried into effect.''^ Likewise, in the case of a codicil, the courts do not allow the will to be disturbed further than is necessary to give effect to the provisions of the later writing.'''' A codicil which does not expressly revoke a will, although professing to make a different disposition of the whole estate, is a revocation only so far as it does in fact make a different dispo- sition.''® Where a person is appointed guardian, ex- ecutor, and trustee, a revocation by codicil of one of his offices does not extend to the others, unless a contrary intention is shown by the context. ''* If, to save repe- tition, the uses of one estate are declared to be similar to those of another, revocation of the first does not affect 75 New Orleans v. Fisk, 2 La. Barrett v. Wilkins, 5 Jur. N. S. 687; Ann. 78. Fry v. Fry, 9 Jur. 894; Hare v. V6 Mercer's Succession, 28 La. Hare, 5 Beav. 629, 12 L. J. Ch. Ann. 564. 344; Graham v. Graham, 16 Beav. See, ante, § 117. 550, 22 L. J. Ch. 937; Cartwright v. 77 Duffield V. Duffield, 3 Bligh Shepheard, 17 Beav. 301; Worley N. S. 261; Beckett v. Harden, 4 v. Worley, 18 Beav. 58. Maule & S. 1; Gookson v. Han- Compare: Burgess v. Burgess, 1 cock, 1 Keen 817; s. c, 2 Mylne Colles C. C. 367; Buhb v. Yelver- & C. 606; Clarke v. Butler, 1 Mer. ton, L. R. 13 Eq. 131; Hill v. Walk- 304; Ex parte Park, 14 Sim. 89; er, 4 Kay & J. 168; Barclay v. Evans, V. Evans, 17 Sim. 86; Doe d. Maskelyne, 5 Jur. N. S. 12; New- Murch v. Marchant, 6 Man. & G. man v. Lade, 1 Younge & C. Ch. 813. 680; Burgess v. Burgess, 1 Colles 78 Brant v. Wilson, 8 Cow. G. C. 367; Conover v. Hoffman, (N. Y.) 56. Tabb. Dec. (N. Y.) 429, 15 Abb. 79 Ex parte Park, 14 Sim. 89; Pr. 100; s. c, 1 Bosw. (N. Y.) 214. KEVOCATION AND ALTERATION. 717 the second.^" Where a specific bequest is made to a residuary legatee to be afterward named, and the residue given the person named in the will is by codicil revoked, the specific bequest is not annulled.*^ A codicil expressly revoking a previous legacy, yet giving only half thereof to another, is held to be a revocation pro tanto only.^^ If two similar wills are executed on the same day, the second does not revoke the first, for the two writings taken together are considered to constitute one and the same will.^* And in general every attempt will be made to educe from the papers a scheme of disposition con- sistent with them both,^* especially where the rejection of the prior will would produce partial intestacy,^^ or where the later paper is styled a codicil.^* But if the date of neither will can be ascertained, and the disposi- tions of the estate made by them can in no way be recon- ciled, both wiU be void.*^ §528. The Same Subject: Ambiguous Expressions. An unambiguous disposition in the will is not to be re- voked by doubtful expressions in a codicil;** yet tech- 80 Darley v. Langworthy, 3 84 Weld v. Acton, 2 Eq. Cas. B. P. C. Toml. 359; reversing Dar- Abr. 777, p. 26; Coward v. Mar- ley V. Darley, Amb. 653; Salter v. shal, Cro. Ellz. 721. Fary, 12 L. J. Ch. 411, 7 Jur. 831; 85 Freeman v. Freman, Kay 479; Bridges v. Stracban, 8 Cb. Div. 558. Plenty v. West, 1 Rob. Ecc. 264. See, also, Francis v. Collier, 4 See, also, Cookson v. Hancock, 1 Russ. 331; In re Gibson's Trust, 2 Keen, 817. Johns. & H. 656; Evans v. Evans, 86 In re Howard, L. R. 1. P. 17 Sim. 108; Carrington v. Payne, & D. 636; Robertson v. Powell, 2 5 Ves. Jun. 404. Hurl. & C. 762. 81 Roach. V. Haynes, 6 Ves. Jun. 87 Phipps v. Anglesey, 7 B. P. C. 153. Toml. 443; Richards v. Queen's 82 Jones V. Jones. 17 N. C. 387. Proctor, 18 Jur. 540; Dempsy v. 83 Odenwaelder v. Schorr, 8 Mo. Lawson, 2 Prob. Div. 98. App. 458. 88 Goblet v. Beechey, 3 Sim. 24; 718 COMMENTARIES ON THE LAW OF WILLS. nical accuracy is not required and, however loose the language, if the intent to revoke be unmistakable, it will prevail.*' But there is a distinction between inconsisten- cies in the same writing and contradictory provisions in different instruments; where there are separate gifts of the same property to two persons by the same will the beneficiaries may take jointly or in common; but if the gifts are made in two separate testamentary instruments, the latter is a complete revocation of the former.'" § 529. Revocation of Will Does Not Necessajily Revoke a Cod- icil Thereto. The early rule in England was that a codicil was pre- sumed to be dependent upon the will, and therefore a rev- ocation of the will by implication was a revocation of the codicil.'^ The rule, however, was not absolute, and proof was allowed to show that the testator intended to revoke the will only, allowing the codicil to stand ;®2 or that the codicil, from the nature of its contents, was capable of existing, independently of the will.®^ By the Statute of Wills of 1 Victoria, ch. 26, sec. 20, the formalities as to revocation were directed to wills or codicils, or any part thereof. The decisions under this act are to the effect that although the will was revoked, yet % codicil thereto Gordon v. Hoffmann, 7 Sim. 29; 369; Medlycott v. Assheton, 2 Joiner v. Joiner, 55 N. C. 68. Addams Ecc. 229. See, ante, § 117. Compare: TJsticke v. Bawden, 2 89 Read V. Backhouse, 2 Russ. & Addams 116. M. 546; Pilcher v. Hole, 7 Sim. 92 Barrow v. Barrow, 2 Lee Ecc. 208; Carrlngton v. Payne, 5 Ves. 335. Jun. 404, 423; Ellis v. Bartrum, 25 93 Tagart v. Squire, 1 Curt. 289; Beav. 107. In re Halliwell, 4 Notes of Cas. 90 Barlow v. Coffin, 24 How. Pr. 400 ; Clogstoun v. Walcott, 5 Notes (N. Y.) 54. of Cas. 623; In re Ellice, 33 L. J. 91 Coppln V. Dillon, 4 Hagg. 361, Prob. 27. REVOCATION AND ALTERATION. 719 was not revoked for such reason and remained in force and effect unless in itself revoked in the manner men- tioned in the statute.^* However, if it appeared or could be shown that the testator intended to also revoke the codicil, the latter would be thereby invalidated.^* In the United States the rule may be said to be that where a will is revoked the question as to the revocation of a codicil thereto depends upon whether or not the codicil itself can stand as an independent instrument. If the codicil can stand alone and is not directly revoked, revocation of the will will not annul it, whereas if it is dependent upon the will the rule is otherwise.®® § 530. Revocation of Codicil Does Not Revoke Will. While it might often happen that a codicil is so related to and dependent upon a will that the latter could not be revoked without destroying the former, the converse is not ordinarily true. The general rule is that a codicil may be revoked without affecting the validity of the will which in itself is a full and complete instrument.*'' The question would depend upon the intent of the testator and the manner of revocation, but the mere destruction of a codicil will not in itself revoke the will.** 94 Black V. Jobling, L. R. 1 Pro. /209 N. Y. 54, Ann. Cas. 1915A, 101, & Div. 685; Goods of Savage, L. R. 46 L. R. A. (N. S.) 983, 102 N. E. 2 Pro. & Div. 78; Goods of Turner, 571; Smitli's Estate, 2 Pa. Co. Gt. L. R. 2 Pro. & Div. 403; Gardiner Rep. 626. V. Courthope, L. R, 12 Pro. & Div. 97 In re Diament's Estate, 84 14. K. J. Eq. 135, 92 Atl. 952; Osburn 96 Goods of Bleckley, L. R. 8 v. Rochester Trust & Safe Dep.- Pro. & Div. 169. Co., 209 N. Y. 54, Ann. Cas. 1915A, 96Y0US6 V. Forman, 5 Bush 101, 46 L. R. A. (N. S.) 983, 102 (Ky.) 337; In re Pinckney's Will, N. E. 571. 1 Tucker (N. Y.) 436; Osburn v. 98 James v. Shrimpton, L. R. 1 Rochester Trust & Safe Dep. Co.. Pro. Div. 431; Stewart's Estate, 720 COMMENTARIES ON THE LAW OF WILLS. § 531. Nature and Execution of Subsequent Writing Revoking Will. Under the Statute of Frauds, it was sufficient if the intention to revoke was written out during the life of the testator and by his direction, whether signed by him or not ; so a letter written at the request of the testatrix, di- recting the custodian of her will to destroy it, was a revocation, although the latter refused to comply.^^ How- ever, a duly executed will could not be revoked by a sub- sequent uncompleted instrument, without the strongest proof of capacity, volition, final intention, and involun- tary interruption.^ "Where the statutes provide, as the only modes of revo- cation, some mutilation, or the making of a new will or codicil, or some other writing "signed, attested, and subscribed like a will," it is not a sufficient revocation for the testator to write upon the back of the sheet con- taining his testament, the date, and the words "I revoke this will," and sign his name thereto.^ A will which is invalid because of defective execution will not operate as a revocation of a former wUl, and this is true even though the defectively executed will contains a clause ex- pressly revoking the former will. In order to revoke a will by a subsequent one, the latter must be executed with all the formalities required by law.* 149 Pa. St. Ill, 24 Atl. 174. See i Gillow v. Bo^me, 4 Hagg. Bcc. In re Brookman, 11 Misc. Rep. 192; Blewltt v. Blewitt, 4 Hagg. (N. Y.) 675, 33 N. Y. Supp. 575, Ecc. 410. w^iere It was held the Intention 2 Ladd's Will, 60 Wis. 187, 50 •was to revoke both codicil and Am. Rep. 355, 18 N. W. 734. ■will. 3 Youse v., Forman, 5 Bush (Ky.) 99 Walcott V. Ochterlony, 1 Curt. 237, 338; Semmes v. Semmes, 7 580; In re Ravenscroft, 18 L. J. Ch. Har. & J. (Md.) 388; Wilbourn v. 501. Shell, 59 Miss. 205, 42 Am. Rep. REVOCATION AND ALTERATION. 721 § 532. The Same Subject. In North Carolina a paper in the form of a will, although not signed or attested, if made with the intent to revoke a former will, is sufficient therefor.'* In Vir- ginia it has been held that an imperfectly executed will may operate as a revocation of bequests of personalty in a previous will.^ In Vermont, where a will covered the first and a portion of the second pages of a sheet, and the testator wrote on the last half of the second page present words of revocation, it was an effectual cancella- tion, and the will could not be revived by the testator's declarations that he had republished it.® But in Massa- chusetts, a will devising real estate can not be revoked by another writing not executed with the same formali- ties.''' It is not necessary that a will expressly revoking for- mer wills should make a disposition of the property pre- 363 ; Jackson v. HoUoway, 7 Jolins. witnesses, and attested by them (N. Y.) 394; Leard v. Askew, 28 in Ms presence, a fonner will and Okla. 300, Ann. Cas. 1912D, 234, codicil are not revoked by an in- 114 Pac. 251; Chestnut v. Capey, strument intended as a subsequent 45 Okla. 754, 146 Pac. 589. will which expressly revoked them, But in Connecticut the words but was invalid because of the in- "this will is invalid" written on competency of one of the subscrib- the back of the will, and signed ing witnesses. — Moore v. Rowlett, by the testator, without being at- 269 111. 88, Ann. Cas. 1916B, 718, tested by witnesses, has been held. 109 N. E. 682. sufficient. — Witter v. Mott, 2 Conn. 4 Clark's Exrs. v. Eborn, 6 N. C. 67. '234, 235. Under the Statute of Wills 6 Glasscock v. Smither, 1 Call. (Kurd's Rev. St. 1913, ch. 148, (Va.) 479. § 17), providing that no will shall e Warner v. Warner's Estate, 37 be revoked otherwise than by de- Vt. 356. stroying it, or by other will, testa- i Laughton v. Atkins, 1 Pick, ment, or codicil in writing declar- (Mass.) 535; Reid v. Borland, 14 ing the same, signed by testator Mass. 208. See, also. Brown v. in the presence of two or more Thorndike, 15 Pick. (Mass.) 388. J '^"m. on Wills — 46 722 COMMENTARIES ON THE LAW OF WILLS. viously devised.® The subsequent writing need not even be a will at all.* Accordingly, it has been said that a will may become operative as a revocation of a former will, although inoperative in other respects.*" § 533. Implied Revocation. An implied revocation is a deduction of law from es- tablished facts.^^ It has been held that this implication of revocation may be rebutted by circumstances, and that the declarations of the testator in his last sickness are admissible for this purpose •^'^ but the weight of authority seems to be to the contrary. It is well settled that the Statute of Frauds*^ and the statutes in America which follow its phraseology, providing that no devise shall be revoked but by the testator canceling, and the like, only apply ' ' to acts of direct and express revocation, and that a will may be revoked by implication or inference of law by various circumstances not within the purview of the statute."^* Prom this interpretation of the statutes we have the doctrine of implied revocation. Implied revocation is of two sorts: (a) An implication from a supposed change of the intention of the testator, mani- fested by marriage or marriage and the birth of a child, and manifested by an attempted conveyance of the estate devised; and (b) an implication arising from the neces- sity of the case, by an alteration in the estate or valid alienation thereof. For example, at common law the 8 In re Thompson, 11 Paige ii Sneed v. Ewlng, 5 J. J. Marsh. (N. Y.) 453. (28 Ky.) 460, 22 Am. Deo. 41. 8 Rudy V. Ulrich, 69 Pa. St. 177, 12 Yerby v. Yerby, 3 Call. (Va.) 8 Am. Rep. 238. 334. 10 Laughton v. Atkins, 1 Pick. 13 29 Charles II, ch. 3, § 6. (Mass.) 535; Sisters of Charity v. i* Garrett v. Dabney, 27 Miss. Kelly, 67 N. Y. 409, 415. 335. EEVOCATION AND ALTERATION. 723 marriage of a woman acted as an absolute revocation of her will ;^^ and the will of a man was revoked by a mar- riage from which there was issue, these circumstances producing such a change in the testator's situation as to lead to the presumption that he could not intend a disposition of property previously made to continue in force.^* Ex necessitate rei a valid conveyance of the property devised effected a revocation, and even a momentary in- terruption of the testator's seisin produced a like effect.^^ But the courts have not gone so far as to lay down the rule that revocation may be implied from any change of circumstances affording satisfactory evidence of the testator's revoking intention. On the contrary, implied revocation takes place in consequence of a rule or prin- ciple of law, independently altogether of the actual in- tention of any particular testator.^^ Thus, a total revo- cation can not be implied from the death of the legatees or devisees,^^ nor from the alienation of the larger por- tion of the estate which was specifically disposed of by the will.2o 15 Cotter V. Layer, 2 P. Wms. 14; Holtt v. Hoitt, 63 N. H. 475, 624; Doe v. Staple, 2 Raym. T. 56 Am. Rep. 530, 3 Atl. 604. 684, 695. Contra: Yerby v. Yerby, 3 Call. 16 Christopher v. Christopher, 2 (Va.) 334. Dick. 445. is Doe v. Edlln, 4 Ad. & E. 586; See, ante, § 96, as to the eilect Warner v. Beach, 4 Gray (Mass.) of marriage and birth of issue on 162; Hoitt v. Hoitt, 63 N. H. 475, mutual or reciprocal -wills. 56 Am. Rep. 530, 3 Atl. 604. See, See, ante, §§ 301-311, as to the also, Fellows v. Allen, 60 N. H. 439, disabilities of married women to 49 Am. Rep. 328. make wills. 20 Brydges v. Duchess of Chan- iTBurgolgne v. Fox, 1 Atk. 575. dos, 2 Ves. Jun. 417; Warren v. isMarston v. Roe, 8 Ad. & E. Taylor, 56 Iowa 182, 9 N. W. 128; 724 COMMENTARIES ON THE LAW OP WILLS. When a statute in its general language embraces all kinds of revocation, both by acts of the testator and by- implication of law, giving special instances in which particularly implied revocations are allowed, it is to the exclusion of all methods of revocation not especially enumerated.^^ Under the New York statute, for example, only mar- riage or the birth of children operates to revoke a will by implication;^^ and therefore the intention of a tes- tator that a subsequent gift or advancement shall oper- ate as a satisfaction of a legacy can not be presumed, for this would be a partial revocation of the will by im- plication from circumstances not specified in the stat- ute.^^ §534. The Same Subject: Illustrations. A will is not revoked by implication from a change of the testator's circumstances as regards the amount Carter v. Thomas, 4 Greenl. (4 -wise operate indicates a change Me.) 341; Hawes v. Humphrey, 9 of purpose In the testator as to Pick. (Mass.) 350, 20 Am. Dec. that part; hut suffering the will 481; Terry v. Edmlnster, 9 Pick, to remain uncanceled, evinces that (Mass.) 355, note; Webster v. his intention is unchanged with Webster, 105 Mass. 538; Wells v. respect to other property be- ■Wells, 35 Miss. 638; Hoitt V. Hoitt, queathed or devised therein." — 63 N. H. 475, 56 Am. Rep. 530, 3 Carter v. Thomas, 4 Greenl. (4 Atl. 604; In re Mickel, 14 Johns. Me.) 341. (N. Y.) 324; McNaughton v. Mc- 21 Ordish v. McDermott, 2 Redf. Naughton, 34 N. Y. 201; Balliet's (N. Y.) 460; Langdon v. Astor's Appeal, 14 Pa. St. 451; Graves Exrs., 16 N. Y. 9; Delafield v. v. Sheldon, 2 D. Chip. (Vt.) 71, Parish, 25 N. Y. 9. 15 Am. Dec. 653; Blandin v. Blan- 22 Parish v. Parish, 42 Barb, din, 9 Vt. 210. (N. Y.) 274. "Conveying a part of the estate 23 Langdon v. Astor, 3 Duer upon which the will would other- (N. Y.) 477. EKVOCATION AND ALTERATION. 725 and relative value of Ms property,** nor from tlie tes- tator's marriage alone, if there be no issue.^^ Nor yet can it be revoked by all these circumstances combined.^* Eevocation can not be implied by law from the death of the testator's wife, and of one of his children, leaving issue; nor from the birth of another child contemplated in the will ; nor from forty years of insanity, beginning soon after the making of the will and continuing until his death; nor from a four-fold increase in the value of his property, so as greatly to change the proportion be- tween the specific legacies given to some of the children, and the shares of other children who were made residu- a.ry legatees.*'^ On various other pretexts efforts have been made to establish the revocation of wills. And in these cases it has been decided that the insertion of a clause,** or the changing of a date, will not effect the revocation of a will;*^ nor will the changing of an executor, nor the striking out of a devise, necessitate the republication of a will.^" Neither is a will revoked by the refusal of one who has it in keeping to deliver it to the testator 24 Warner v. Beach, 4 Gray 56 Am, Rep. 530, 3 Atl. 604; s. c, (Mass.) 162; Webster v. Webster, 5 Am. Prob. Rep. 529. 105 Mass. 538; Holtt v. Hoitt, 63 26 Hoitt v. Hoitt, 63 N. H. 475, N. H. 475, 56 Am. Rep. 530, 3 Atl. 56 Am. Rep. 530, 3 Atl. 604. 604; Brush v. Wllklns, 4 Johns. 27 Warner v. Beach, 4 Gray Ch. (N. Y.) 506, 507; Vandemark (Mass.) 162. V. Vandemark, 26 Barb. (N. Y.) 28 Wright v. Wright, 5 Ind. 389; 416; Wogan v. Small, 11 Serg. & R. Dixon's Appeal, 55 Pa. St. 424. See, (Pa.) 141; Balliet's Appeal, 14 Pa. also, Wikoff's Appeal, 15 Pa. St St. 451; Verdier v. Verdler, 8 281, 53 Am. Dec. 597. Rich. L. (S. C.) 135; Graves v. 29 Dixon's Appeal, 55 Pa. St. Sheldon, 2 D. Chip. (Vt.) 71, 15 424. Am. Dec. 653; Blandin v. Blandln, 30 In re Brown's Will, 1 B. Mon. 9 Vt. 210. (40 Ky.) 56, 35 Am. Dec. 174. 25 Hoitt V. Hoitt, 63 N. H. 475, 72G COMMENTABIES ON THE LAW OP WILLS. for alteration;'^ nor by the addition of an unexecuted codicil;*^ nor by the discovery of the existence of a child.3» A will is not made invalid because one of the subscrib- ing witnesses subsequently became the husband of the testatrix, it being sufficient that he was a credible wit- ness at the time of the execution ;** nor by the fact that one or more of the witnesses died before probate f^ nor by the death of the mother of the testatrix, and the change in her family relations by the marriage of her sister ; nor by the destruction of a will made in favor of the testator; nor by the wiU being found among worth- less paper.^* §535. Implied Revocation by Marriage and Blith of Issue: Common law rule. At common law, marriage with birth of issue revoked the will of a man;*'' and it was immaterial whether the 31 Leayoraft v. Simmons, 3 657, overruling dictum In Hobbs v. Bradf. (N. Y.) 35. Knight, 1 Curt. 768; Christopher 32Helse V. Heise, 31 Pa. St. 246. v. Christopher, 2 Dick. 445; Spra- 33 Ordish v. McDermott, 2 Redf. age v. Stone, 2 Amb. 721; Over- (N. Y.) 460. See, also. Shepherd bury v. Overbury, 2 Show. 242; V. Shepherd, 5 Term Rep. 51, note; Lugg v. Lugg, 2 Salk. 592,. 1 Ld. Brush V. Wilkins, 4 Johns. Ch. Raym. 441; Brown v. Thompson, (N. Y.) 506. 1 Eq. Cas. Abr. 413, pi. 15; Eyre v. 34 Lord V. Lord, 58 N. H. 7, 42i Eyre, 1 P. Wms. 304, n. Am. Rep. 565; Fellows v. Allen, See, also, Parsons v. Lanoe, 1 60 N. H. 439, 49 Am. Rep. 328. Ves. Sen. 189, 192; Gibbons T. 3B Fellows V. Allen, 60 N. H. 439, Caunt, 4 Ves. Jun. 840, 848. 49 Am. Rep. 328; Dean v. Dean's At common law marriage alone Heirs, 27 Vt. 746. did not cause a revocation by op- 36 Fellows V. Allen, 60 N. H. 439, eration of law of a prenuptial will 49 Am. Rep. 328. of a man, the wife having her 37 Langford v. Little, 2 Jo. & dower rights notwithstanding the Lat. 613, 633; In re Shirley, 2 Curt. will. — ^Herzog v. Trust Co., 67 Fla. REVOCATION AND ALTERATION. 727 child were bom before or after tbe death of the testa- tor,^* or whether it outlived or died before its father.^' It has been thought that the subsequent birth of children by an existing marriage, the death of their mother, and the second marriage of their father, would revoke a will in the same manner that marriage and the birth of a child therefrom would revoke a will previously executed, the order of the events making no difference.*" But at com- mon law, marriage and issue did not revoke a will which did not dispose of the whole estate ;*^ nor when the wife and child had been both provided for in the will;*^ nor 54, Ann. Gas. 1917A, 201, 64 So. 426: Hulett v. Carey, 66 Minn. 327, 61 Am. St. Rep. 419, 34 L. R. A. 384, 69 N. W. 31; Hoy v. Hoy, 93 Miss. 732, 136 Am. St. Rep. 548, 17 Ann. Cas. 1137, 25 L. R. A. (N. S.) 182, 48 So. 903. 38 Doe V. Lancashire, 5 Term Rep. 49; Israeli v. Rodon, 2 Moore P. C. C. 51; Matson v. Magrath, 1 Rob. Ecc. 680; s. c, 6 Notes of Cas. 709; s. c, 13 Jur. 350. An adoption of a child subse- quent to the making of a will Is not equivalent to the birth of a child so as to revoke the will. — Evans v. Evans, (Texas Civ. App.) 186 S. W. 815. See, ante, § 96, as to mutual wills. 39 Emerson v. Boville, 1 Phillim. 342. Contra: Wright v. Netherwood, 2 Salk. 593; s. c, 2 Phillim. 266. 40 Gibbons v. Caunt, 4 Ves. Jun. 840, 848. Under the common law the will was not revoked merely by the subsequent birth of children. — Woodliff V. Dunlap, 187 Ala. 255, 65 So. 936. At the common law the mar- riage of a man and the birth of a child subsequent to the making of a will by him had the effect of revoking such will, but, when the will was made by a man already married, the birth of a child sub- sequent to the making of the will did not work a revocation of such will. In the absence of a statute this principle of the common law must be held to be the law of this state. — Easterlin v. Easterlin, 62 Fla. 468, Ann. Cas. 1913D, 1316, 56 So. 688. 41 Dicta in Brady t. Cubit, Doug. 31; Kenebel v. Scrafton, 2 East. 530, 541; Marston v. Fox, 8 Ad. & E. 14, 57. 42 Marston v. Fox, 8 Ad. & E. 14; s. c, 2 Nev. & P. 504; ques- tioning Brown v. Thompson, 1 Bq. Cas. Abr. 413, pi. 15; Kenebel v. Scrafton, 2 East 530. See, also. 728 COMMENTAKIES ON THE LAW OP WILLS. in a settlement made prior** to tlie execution of the will. Under the Victorian statute, marriage alone without birth of issue is made a revocation of the wills of both husband and wife, and no declaration in or out of the will can obviate this result.** § 536. Will of Feme Sole Revoked by Her Marriage. At common law marriage alone, without the birth of issue, revoked the Avill of an unmarried woman because in legal contemplation her identity became merged in that of her husband and she no longer had the right to make a will. Such revocation was absolute, and when the disabilities of coverture were removed by the death of her husband the will was not thereby revived.**"^ An exception to this irule, however, was where the wife's interest in her separate property had been protected by an ante-nuptial agreement under which she had pre- In re Cadywold, 1 Sw. & Tr. 34; 44a See, ante, §§301-311. Porse s. c, 27 Law J. Prob. 36. and Hembling's Case, 4 Coke 61 Under the common law a wilB Cotter v. Layer, 2 P. Wms. 624 was revoked by a subsequent mar- Doe v. Staple, 2 Term Rep. 684, 695 rlage of the testator and birth ot Hodsden v. Lloyd, 2 Bro. C. C. 534 children, unless provision waa Long v. Aldred, 3 Addams Ecc. 48 made in the will for such con- Downes v. Timperon, 4 Russ. 334 tingency. — ^Woodlift v. Dunlap, 187 Long v. Aldred, 3 Addams Ecc. 48 Ala. 255, 65 So. 936. Matter of Comassi, 107 Cal. 1, 28 43 Israeli v. Rodoii, 2 Moore L. R. A. 414, 40 Pac. 15; Chapman P. C. C. 51, overruling Talbot v. v. Dismer, 14 App. Cas. D. C. 446; Talbot, 1 Hagg. Ecc. 705; Johnston Colcord v. Conroy, 40 Fla. 97, 23 V. Wells, 2 Hagg. Ecc. 561. See, So. 561; Sutton v. Hancock, 115 a)so, Matson v. Magrath, 1 Rob. Ga. 857, 42 S. E. 214; Stewart v. Ecc. 680; s. c, 6 Notes of Cas. 709; Mulholland, 88 Ky. 38, 45, 21 Am. s, c, 13 Jur. 350. St. Rep. 320, 10 S. W. 125; Swan 44 Statute of 1 Victoria, ch. 26, v. Hammond, 138 Mass. 45, 52 Am. § 18. Rep. 255; Morey v. Sohier, 63 N. H. See.ante, §307. Married Women's 507, 510, 56 Am. Rep. 538, 3 Atl. Property Act. 636; Morton v. Onion, 45 Vt. 145. KEVOCATION AND ALTERATION. 729 served tlie power of testamentary disposition of such property."" Under the statute of 1 Victoria, ch. 26, sec. 18, marriage of a feme sole revokes her will ; but even before its enactment the will of a woman made in exe- cution of a power was not revoked by her marriage,**" nor was a will made under a power during the life of the husband revoked by his death.**'^ But, of course, if the power was given to the wife "in case she dies in the lifetime of her husband," and in case of her sur- viving her husband the property is given to her abso- lutely, a will made during coverture is inoperative if the wife survives, as the power never arose ;*^ and it will not even raise a case of election.** §537. Implied Revocation by Marriage: Regulations in the United States. In several of the states of the Union there are stat- utes expressly recognizing the implied revocation of wiUs as at common law,*'^ yet their courts all unite in hold- 44b See, ante, §§ 301-311. Wright Mylne & K. 296; Morwan v. V. Englefield, Ambl. 468; Rich v. Thompson, 3 Hagg. Ecc. 239. Beaumont, 6 Bro. P. C. 152; Doug- 45 Price v. Parker, 16 Sim. 198; las V. Cooper, 3 Myl. & K. 378; Trimmell v. Fell, 16 Beav. 537; Stewart v. Mulholland, 88 Ky. 38, Wlllock v. Noble, L. R. 7 H. L. 21 Am. St. Rep. 320, 10 S. W. 125; 580. Osgood V. Bliss, 141 Mass. 474, 477, 46 Willock v. Noble, L. R. 7 H. L. 55 Am. Rep. 488, 6 N. E. 527; 580; Blaiklock v. Grindle, L. R. 7 Morey v. Sohier, 63 N. H. 507, 511, Eq. 215, 17 W. R. 114. 56 Am. Rep. 538, 3 Atl. 636; Bradish 47 Blodgett v. Moore, 141 Mass. V. Gibbs, 3 Johns. Ch. (N. Y.) 523. 75, 5 N. E. 470; Phaup v. Woold- 440 Logan V. Bell, 1 Com. B. 872. ridge, 14 Grat. (Va.) 332. See, also, Douglas v. Cooper, 3 A will which has been revoked Mylne & K. 378. by the marriage of the testator 44d Du Hourmelin v. Sheldon, is revived by the execution of a 19 Beav. 389; Clough v. Clough, 3 codicil subsequent to the marriage. 730 COMMENTARIES ON THE LAW OF "WILLS. ing that statutes emancipating tlie wife from common- law disabilities as to property and property rights, and conferring upon her authority to make a. valid will, have the effect of abrogating the rule under which mar- riage was held to revoke a former will.*® And even where marriage of a male or female or marriage and the birth of a child operate as a revocation, the general rule is that if the will had made provision for such contin- gency, there is no revocation;** nor does revocation by —Estate of Cutting, 172 Cal. 191, 155 Pac. 1002. A will is revoked by subsequent common law marriage. — In re Mat- teote's Estate, 59 Colo. 566, 151 Pac. 448. Will is revoked by subsequent marriage of the testator. — ^Van Guelpan's Estate, 87 Wash. 146, 151 Pac. 245. 48 Hastings v. Day, 151 Iowa 39, Ann. Cas. 1913A, 214, 34 L. R. A. (N. S.) 1021, 130 N. W. 134. See, ante, § 311. The rule thus having its founda- tion in the disabilities of coverture with respect to the ownership and control of property, and the right to contract with reference thereto, and not being applicable where those disabilities are removed by statute and a wife is legally em- powered to make a valid will of her separate estate, her marriage will not be held to revoke a will previously executed. It is a clear case for the application of the maxim that a rule ceases to be obligatory when the reason for it ceases. — Hastings v. Day, 151 Iowa 39, Ann. Cas. 1913A, 214, 34 L. R. A. (N. S.) 1021, 130 N. W. 134; In re Hunt, 81 Me. 275, 17 AU. 68; Noyes V. Southworth, 55 Mich. 173, 54 Am. Rep. 359, 20 N. W. 891; Kelly V. Stevenson, 85 Minn. 247, 89 Am. St. Rep. 545, 56 L. R. A. 754, 88 N. W. 739; Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 328; Ward's Will, 70 Wis. 251, 5 Am. St. Rep. 174, 35 N. W. 731. A will is not revoked by mar- riage. — Herzog v. Trust Co., 67 Fla. 54, Ann. Cas. 1917A, 201, 64 So. 426. The will is not revoked by the subsequent marriage of the tes- tator. — ^In re Andrest's Estate, 96 Misc. Rep. 389, 160 N. Y. Supp. 505. 49WoodlifE V. Dunlap, 187 Ala. 255, 65 So. 936. Under some statutes a will is revoked where the maker marries and dies leaving a widow. — ^In re Roton's Will, 95 S. C. 118, 78 S. E. 711. Under the Washington statute a will is not revoked by the subse- quent m.arriage of the testator, if REVOCATION AND ALTERATION. 731 marriage apply to a will made in the exercise of a col- lateral power of appointment,^" when in default of such appointment the estate would not pass to the heir, per- sonal representative, or next of kin.^^ In Georgia, it has been held that a testator may rebut the presumption of rev- ocation raised by marriage and the birth of a child by a declaration in writing, executed with the same formali- ties required for a will.^^ Under the statute of Ehode Island, it has been held marriage is only presumptive evi- dence of an intent to revoke, and the contrary may be shown.^* In Illinois, under the statute, marriage acts per se as a revocation of a prior will;^* and in the same state it has been held, under a statute making husband and wife heir to one another when there are no children or descendants, that marriage acts as a revocation of a will made prior thereto, which made no provision for the contingency of marriage and disposed of the entire estate, unless there are facts subsequent to the marriage which show an intention that the will shall stand.^^ Marriage without issue does not revoke a will in Texas,^® nor, it would seem, in Indiana.^''^ In New York, from the facts of marriage and the birth of a child the law pre- the wife is provided for in the •will, B4 McAnnulty v. McAnnulty, 120 or it shows an intention to make 111. 26, 60 Am. Rep. 552, 11 N. E. no provision for her. — Koontz v. 397; Duryea v. Duryea, 85 111. 41. Koontz, 83 Wash. 180, 145 Pac. 201. See, also, cases cited in note to 50 Morgan v. Ireland, 1 Idaho McAnnulty v. McAnnulty, 120 111. 786; Byrd v. Surles, 77 N. C. 435. 26, 60 Am. Rep. 552, 11 N. E. 397; 51 Phaup V. Wooldridge, 14 Grat. 111. Rev. Stats., ch. 39, § 10. (Va.) 332. Contra: In re TuUer's Will, 79 52 Deupree v. Deupree, 45 Ga. 111. 99, 22 Am. Rep. 164. 415. See, also, Miller v. Phillips, 55 Tyler v. Tyler, 19 111. 151. 9 R. I. 141. s^ Morgan v. Davenport, 60 Tex. 53 Wheeler t. Wheeler, 1 R. I. 230. 364. 57 Bowers v. Bowers, 53 Ind. 430. 732 COMMENTARIES ON THE LAW OF WILLS. sumes an intention on the part of a testator to revoke a will previously made disposing of the whole estate, where neither in the will nor otherwise has there been made any provision for the new relation.^® § 538. The Same Subject. Under a statute prescribing the modes of revoking a will and recognizing implied revocation "from subse- quent change in the condition or circumstances of the tes- tator," marriage will revoke the will of a woman. ^' In New York, it has been held that marriage is a revocation of a woman's will, notwithstanding an ante-nuptial agree- ment whereby she retains full control of her property.*" And the New York Acts of 1848, 1849, and 1860 for the protection of the property of married women did not by implication repeal the provision of the Revised Stat- utes that a will executed by an unmarried woman should be deemed revoked by her subsequent marriage;*^ nor are the provisions of a statute as to the revocation of a woman's will by her subsequent marriage abrogated by an act relieving married women from the disability which debarred them from making a will.®^ The will of a woman, revoked by marriage, is not re- vived by her husband's death under the laws of Penn- sylvania, California, Nevada, North Dakota, South Da- kota, and Montana. In several states, if provision be made for the contingency, marriage does not revoke a 58 Havens v. Van Den Burgh, & C. (N. Y.) 512; s. c, 4 Hun 1 Denio (N. Y.) 27; Brush v. Wll- (N. Y.) 213. kins, 4 Johns. Ch. (N. Y.) 506. ei Loomls v. Loomls, 51 Barb. B9 Swan V. Hammond, 138 Mass. (N. Y.) 257. 45, 52 Am. Rep. 255. See, also, 62 Brown v. Clark, 77 N. Y. 369. Church V. Crocker, 3 Mass. 17. See, also, Fransen's Will, 26 Pa. eoLathrop v. Dunlop, 6 Thomp. St. 202. EEVOCATION AND ALTERATION. 733 woman's will.®' In some states the will of a single woman is not revoked by her subsequent marriage,®* and it has been held in Michigan that where a feme covert has the power to make a will as if she were unmarried, the will of a single woman is not revoked by marriage alone.®^ A will revoked by the marriage of the testatrix may be declared void whenever such fact appears, even in a de- cree on final accounting.*® § 539. Implied Revocation Prom Birth of Issue. The general rule is that the birth of a child unpro- vided for in its father's will works a revocation thereof.®'' And although the rule is founded upon the supposed change of intention on the part of the testator, he can not prevent its operation by parol declaration of an op- posite intent.®^ While a posthumous child for whom no provision has been made continues to live, the will must be deemed revoked, and the property must descend ac- es See synopsis of statutes, Ap- Ann. 378; Bloomer v. Bloomer, 2 pendix, this volume. Bradt (N. Y.) 339; Ash v. Ash, 9 64 Fellows V. Allen, 60 N. H. Ohio St. 383; Tomlinson v. Tom- 439, 49 Am. Rep. 328; Webb v. linson, 1 Ashm. (Pa.) 224; Coates Jones, 36 N. J. Eq. 163. See, also, v. Hughes, 3 Bin. (Pa.) 498; Wil- In re Tuller's Will, 79 111. 99, 22 cox v. Rootes, 1 Wash. (Va.) 140. Am. Rep. 164. 68 Marston v. Roe, 8 Ad. & E. 65 Noyes V. Southworth, 55 Mich. 14; Gfoodtitle v. Otway, 2 H. Bl. 173, 54 Am. Rep. 359, 20 N. W. 891. 522; Doe v. Lancashire, 5 Term 66 Davis' Estate, 1 Tuck. (N. Y.) Rep. 61; Kenebel v. Scrafton, cited 107. in 5 Ves. Jun. 663; s. c, 2 East 67 Hart V. Hart, 70 Ga. 764; 530; Israeli v. Rodon, 2 Moore Hughes V. Hughes, 37 Ind. 183; Al- P. C. C. 51; Matson v. Magrath, 1 den v. Johnson, 63 Iowa 124, 18 Rob. Ecc. 680; s. c, 6 Notes of N. E. 696; Sneed v. Ewing, 5 J. J. Cas. 709; s. c, 13 Jur. 350. See, Marsh. (28 Ky.) 460, 22 Am. Dec. also, Gibbons v. Gaunt, 4 Ves. Jun. 41; Hackett v. Stephens, 3 La. 840, 848; Hall v. Hill, 1 Dru. & Ann. 271; Lewis v. Hare, 8 La. War. 114. 734 COMMENTARIES ON THE LAW OP WILLS. cording to the statute.^" The repeal of the Iowa statute which provided for an abatement of legacies to provide for a child born after the will, operated to restore the common law rule that the birth of a child operated as a revocation of a will.'''' Under a statute in that state, which admits to a share in the inheritance an illegitimate child which has been recognized by its father, the birth and recognition of such a child will act as a revocation as though it had been legitimate.''^ The general rule that the birth of a child after the making of a will acts as a revocation of it, would seem to be a part of the com- mon law of America, independent of statues.''^ There are, however, various enactments on the subject. In many- states the statutes by various provisions protect the in- terests of children born after the making of a will, pro- viding generally that in the absence of some mention in the will or provision for them, the testament shall be void. The statutes should be consulted for the details.''* But where provision is made for the children of a mar- riage, the birth of a child does not revoke the will ;''* and the birth of a child which could not have been benefited by the revocation of a will did not under the common law work a revocation thereof.''® Contra: Brady v. Cubit, Doug. 73 See synopsis of statutes, Ap- 31; Gibbens v. Cross, 2 Addams pendlx, this volume. Ecc. 455; Fox v. Marston, 1 Curt. T 4 Savage v. Mears, 2 Rob. Ecc. 494. 570. 69 Morse v. Morse, 42 Ind. 365. 75 Sheath v. York, 1 Ves. & B. 70 Negus V. Negus, 46 Iowa 487, 390. See, also, Hollway v. Clarke, 26 Am. Rep. 157; Fallon v. Chides- 1 Phillim. 339; Walker v. Walker, ter, 46 Iowa, 588, 26 Am. Rep. 164. 2 Curt 854; Gibbons v. Caunt, 4 71 Milburn v. Milburn, 60 Iowa Ves. Jun. 840, 849; Wright v. Neth- 411, 14 N. W. 204. erwood, 2 Salk. 593, n. 72 McCullum ▼. McKenzle, 26 Iowa 510. EEVOCATION AND ALTERATION. 735 § 540. Implied Revocation Prom Void Conveyance. Prior to the statute of 1 Victoria, ch. 26, an instrument purporting to be a conveyance, but incapable of taking effect as such, migbt nevertheless operate to revoke a pre- vious devise on the principle, it would seem, that the at- tempted act of conveyance was inconsistent with the tes- tamentary intention and therefore, though ineffectual to vest the property in the alienee, it produced a revocation of the devise.''* The rule did not apply, however, where the conveyance failed to take effect because of the in- capacity of the testator to make a disposition, for there could be no intent to revoke without a disposing mind.'''' Questions of this nature, however, can not arise in Eng- land since the act of 1 Victoria, ch. 26; nor under the American statutes which make substantially similar pro- visions''* as to the revocation of wills, except that the devisee may take the land subject to the rights which others may claim therein, to be enforced in a suit in equity. § 541. Alteration of Circumstances as Implying Revocation. The early rule as to devises of real property in Eng- land was that no man could devise realty which he did not own at the time the will was made, and also which he did not continue to own uninterruptedly until the time of his death.''® Therefore any subsequent transfer of real property owned at the time the will was made op- erated as a revocation of a prior devise of such property. 76 Montague v. Jefferies, Moor. 77 Eilbeck v. Wood, 1 Russ. 429, pi. 599; Doe v. Llandaft, 2 564. Bos. & P. N. R. 491; Shore v. 78 Ford v. De Pontes, 30 Beav. Plnke, 5 Term Rep. 124, 310; 572. Vawser v. JefEery, 2 Swanst. 274. 79 See §§ 26, 27, 28, 29, 229. 736 COMMENTARIES ON THE LAW OF WILLS. This rule prevailed to an extent at one time in tlie United States.^" This was changed by the statute of 1 Victoria, ch. 26, sec. 3, so that a devise operates on property owned at the time of the death of the testator and includes, in a residuary clause, property acquired after the will was made ; and such is also the rule in the United States.^^ Revocation of devises by an alteration of estate, is placed on an entirely new footing by the statute of 1 Vic- toria, ch. 26, sec. 19, which provides that "no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." In several of the United States similar statutes are to be found, pro- viding in substance that no conveyance or alteration of estate which does not wholly divest the testator of all interest in the property mentioned in the will, shall pre- vent the operation of the instrument with respect to that which the testator may have power to dispose of at the time of his death.^^ § 542. Sale of Property Devised, as Affecting Revocation. The general rule is that a conveyance of an estate or interest therein previously devised or bequeathed is deemed a revocation thereof if so expressed in the con- veyance and, whether or not so expressed, it will act as a revocation if the provisions of the conveyance are totally inconsistent with the devise or bequest. If the transfer be upon condition which has failed it would then stand as if no transfer had been made.^^ Although the will directs 80 See §230. 126 Md. 377, 95 Atl. 68; In re 81 See §§ 30, 238, 239. Smith (Moore v. Smith), (Mich.) 82 See synopsis of statutes, Ap- 158 N. W. 148; In re Sinnott's Will, pendix, this volume. 82 Misc. Rep. 219, 143 N. Y. Supp. KS Meily v. Knox, 269 111. 463, 546; Estate of Gensimore, 246 Pa. 110 N. E. 56; Krieg v. McComas, 216, 92 Atl. 134. REVOCATION AND ALTERATION. 737 property to be sold and disposition to be made of the pro- ceeds, and the testator sells the property in his lifetime, it is a revocation of the devise notwithstanding the di- rection to convert the property into money.^* Where a devise is revoked by a sale of the devised property, the proceeds of the sale become a part of the general estate.^^ But the rule that a conveyance of lands specifically de- vised amounts to a revocation does not apply where the deed is obtained by fraud or undue influence.*® §543. A^n^eements to Convey Property Devised, Effect Of. It is provided by the statutes of some states that an agreement to convey property previously devised or be- queathed does not revoke the gift, but that the property shall pass to the devisees, subject to such remedies for en- forcement of specific performance as might have been had against the heirs or next of kin; likewise a charge or encumbrance upon real or personal estate does not work a revocation of a will, but the devises or bequests take effect subject to the encumbrance. This would be the case unless it appear in the will or in the instrument Where a testator conveys to an- A deed conveying all the prop- other real property specifically de- erty hequeathed is a revocation of vised, and does not afterwards be- the whole will. — ^Epps v. Dean, 28 come possessed of the same, and Ga. 533; Bowen v. Johnson, 6 Ind. the will contains no provision for 110, 61 Am. Dec. 110. such contingency, the devise is re- 84 May v. Sherrard's Legatees, voked.— Lang v. Vaughn, 137 Ga. 115 Va. 617, Ann. Cas. 1915B, 1131, 671, Ann. Cas. 1913B, 52, 40 L. R. A. 79 S. B. 1026. (N. S.) 542, 74 S. B. 270. 85 Stender v. Stender, 181 Mich. A conveyance in fee is a revoca- 648, 148 N. W. 255; In re Sinnott's tlon of a devise, although the Will, 163 App. Mv. 817, 148 N. Y. grantor reserve to himself a Supp. 637. ground rent.— Skerrett v. Burd, 1 86 Yott v. Tott, 265 111. 364, 106 Whart. (Pa.) 246. N. E. 959. I Com. on Wills— 47 738 COMMENTAEIES ON THE LAW OP WILLS. creating the charge that the testator intended it to act as a revocation. In Alabama, maMng a contract for the sale of land does not revoke a previous devise in the absence of any writing evincing an intention on the part of the testator to revoke it, unless the whole of the purchase money has been paid.^''^ Accordingly, where one made a sale and conveyance of a part of the lands which he had pre- viously devised, and a greater part of the price remained unpaid, it did not act as a revocation ; and oral declara- tions of the deceased tending to show an intent to revoke the devise at some future time, or a present oral revo- cation, can not be admitted as evidence.^* §544. Implied Revocation From Alteration of Estate Gen- erally. A conveyance and sale of the whole of the testator's title and interest in property devised is a revocation of that devise f^ and, under modem statutes, where any interest remains in the testator, "it is now scarcely pos- sible for any residuum of interest in the testator to escape from a previous devise.®" A covenant to convey is a revocation of the equitable interest in the property so that the devisee takes nothing but the bare legal title,*^ with a right to the rent until the conveyance is com- 87 Powell's Distributees v. Pow- 9i Donohoo v. Lea, 1 Swan, ell's Legatees, 30 Ala. 697. (Tenn.) 119, 55 Am. Dec. 725; Far- 88 Slaughter v. Stephens, 81 Ala. rar v. Winterton, 5 Beav. 1; Moore 418, 2 So. 145. T. Raisbeck, 12 Sim. 123; Hall v. 89 Arnald v. Arnald, 1 Bro. C. C. Bray, 1 N. J. L. 212. 401. See, ante, §§ 240-247, as to wills 90 Lowndes v. Norton, 33 Law J. of contingent interests in real Ch. 583. See, also, Prater v. Whit- property. tie, 16 S. C. 40. EEVOCATION AND ALTERATION. 739 pleted.^2 ^ subsequent conveyance of a portion of tlie property devised is a revocation pro tanto only.®* Thus, where property previously devised was conveyed in trust to pay debts, it was a revocation pro tanto only, and so much as remained after the payment of the debts went to the devisees.®* So, too, a will disposing of both real and personal property is not revoked as to the latter by a sale of the former.®^ Neither wiU the execution of a deed conveying a portion of his estate to Ms wife revoke a previous will by which the testator's whole estate was given to her.^^ § 545. The Same Subject. Incurring debts that swallow up all the estate given to a testator's own children, but leaving intact a legacy to a bastard grandchild, does not of itself revoke the will.®'^ No revocation is to be implied from the testator's acquiring a larger interest than when he made the will. If after the execution of his will a testator purchases land which would be included in the general description of the land devised by the will, it does not operate as a revoca- tion either wholly or partially.^^ And where a testator makes a specific bequest of property, which he holds upon lease and afterward acquires a fee in the same, it has been ruled that the entire interest possessed by the testator at his death passed under the bequest.^^ 92 Watts T. Watts, L. R, 17 Eq. 95 Warren v. Taylor, 56 Iowa 217. 182, 9 N. W. 128. 93 Brown v. Thomdike, 15 Pick. 96 Cllngan v. Mitcheltree, 31 Pa. (Mass.) 388; Balliet's Appeal, 14 St. 25. Pa. St. 451. 9^ Wogan v. Small, 11 Serg. & R. 94 Livingston v. Livingston, 3 (Pa.) 141, 143. Johns. Ch. (N. Y.) 148. See, also, 98 Blandin v. Blandin, 9 Vt. 210. Jones T. Hartley, 2 Whart. (Pa.) 99 Cox v. Bennett, L. R. 6 Bq. 103. 422. 740 COMMENTAEIES ON THE LAW OF WILLS. A mortgage on part of the property to the sole bene- ficiary under the will, although made by the testator in the belief that the will was invalid and with the inten- tion of substituting it for the will, is not a revocation under the statute.^ In Delaware, a will of lands held in common is not revoked by the testator acquiring the whole in severalty ; but the after-acquired portion of the estate does not pass.^ §546. Intent to Revoke, Without the Performance of Some Act, Is Insufficient. Without some act of revocation, an intention to revoke, however frequently expressed, is not sufficient.* Some 1 Stubbs V. Houston, 33 Ala: 555. See, ante, §§ 240-247, as to wills of contingent Interests In real property. 2 Duffel's Lessee v. Burton, 4 Har. (Del.) 290. 3 Cheese v. Lovejoy, L. R. 2 Pro. Div. 251; Bohleber v. Rebstocfe, 255 111. 53, Ann. Cas. 1913D, 307, 41 L. R. A. (N. S.) 105, 99 N. E. 75; Runkle t. Gates, 11 Ind. 95; Gains v. Gains, 2 A. K. Marsh (9 Ky.) 190, 12 Am. Dec. 375; Graham V. Burch, 47 Minn. 171, 28 Am. St. Rep. 339, 49 N. W. 697; Mundy v. Mundy, 15 N. J. Eq. 290; Delafleld V. Parish, 25 N. Y. 9; Nelson v. Public Admr., 2 Bradf. (N. Y.) 210; Jackson v. Betts, 9 Cow. (N. Y.) 208; Kent v. MahafEey, 10 Ohio St. 204; Lewis v. Lewis, 2 Watts & S. (Pa.) 455; Clingan v. Mltcheltree, 31 Pa. St. 25; Blanch- ard's Heirs t. Blanchard's Heirs, 32 Vt 62. See, ante, § 518. It is a settled law that Where there Is a statute providing the method by which a will may be re- voked, the method provided by the statute is exclusive and the origi- nal will, if valid, can not be re- voked, except in one of the modes prescribed by the statute. — ^In re Ballard's Estate, (Okla.) 155 Pac. 894; Evans v. Evans, (Tex. Civ. App.) 186 S. W. 815. "The mere intention to revoke a will, unaccompanied by any act of the testator to execute that inten- tion, will not be sufficient to re- voke the will, even though the execution of the intention was frustrated by the fraud and Im- proper conduct of other persons. Slight acts of tearing, burning, or cancelling, with the purpose and Intention of revoking a Will, may be sufficient for that purpose, but the intention to revoke, unaccom- REVOCATION AND ALTERATION. 741 act of tlie testator himself, or at his direction, or by his sanction, is necessary.* For example, where a testator to whom a child has been born after the execution of his will, fell sick and inquired of his physician whether he were dangerously ill, as he wished to make some pro- vision for his youngest child, and at the suggestion of the physician, who thought him better, deferred the mat- ter until too late, the circumstances were held not to amount to a revocation.^ A partial burning, or slight tearing, with the intent to destroy, is a revocation.^ But an unsuccessful attempt to burn a will by which the cover only was scorched, was held not to amount to a revoca- tion. "To hold that it was so," said the court, "would be saying that a strong intention to burn was a burn- ing. "''^ The intention of a testator to revoke his will, even when committed to writing, is not sufficient unless the statutory forms are complied with.^ There are cases in which the testator directed another to burn or destroy his will, and was deceived by the statement that his com- mand had been obeyed, or by seeing another paper thrown upon the fire, where it has been held that there was no revocation.^ panied by any of the acts of de- 7 Doe d. Reed v. Harris, 6 Ad. & struction required by the statute, E. 209; s. c, 2 Nev. & P. 615. is insufficient." — Bohleber v. Reb- 8 Delafield v. Parish, 1 Redf. stock, 255 111. 53, Ann. Cas. 1913D, (N. Y.) 30; s. d, 25 N. Y. 9; 307, 41 L. R. A. (N. S.) 105, 99 Blanchard's Heirs v. Blanchard's N. E. 75. Heirs, 32 Vt. 62. 4 Steele v. Price, 5 B. Mon. (44 9 Runtle v. Gates, 11 Ind. 95; Ky.) 58. Hise v. Fincher, 32 N. C. 139, 51 sMcCay v. McCay, 5 N. C. 447. Am. Dec. 383; Mundy v. Mundy, 6 Bibb d. Mole v. Thomas, 2 15 N. J. Eg. 290; Boyd t. Cook, 3 W. Bl. 1043. Leigh (Va.) 32; Malone's Admr. v. 742 COMMENTABIES ON THE LAW OP WIIiLS. § 547. Acts Alone Do Not Work a Revocation Unless the In- tent to Revoke Exists. The mere act of cancellation, erasure, or obliteration will not constitute a revocation of a will in the absence of an intention that such should be its effect. Although every act of cancellation is prima facie a revocation, evi- dence is admissible to prove the contrary.^" This is ex- pressed in the statutes of many of the states. Where there is strong reason for supposing that the testator had imintentionally destroyed his will, or that it was destroyed without his concurrence, there is no revoca- tion.^^ Inadvertently throwing ink instead of sand upon the paper does not revoke the will.^^ And it has been held not to constitute a revocation where a few days after executing his will the testator, being in doubt as to the validity of the signature of his surname, caused it to be erased and signed his full name in the presence of two other attesting witnesses.^^ If the testator, either of his own volition or upon the remonstrance of another, leaves Hobbs, 1 Rob. (Va.) 346, 39 Am. world without destroying; there Dec. 263. must be the two." — Cheese v. Love- 10 Giles V. Warren, L. R. 2 joy, U R. 2 Pro. Dlv. (Eng.) 251; P. & D. 401; Bigge v. Bigge, 9 Jur. Managle v. Parker, 75 N. H. 139, 192; s. c, 3 Notes of Cas. 601; In Ann. Gas. 1912A, 269, 24 L. R. A. re Tozer, 2 Notes of Cas. 11; (N. S.) 180, 71 Atl. 637. s. c, 7 Jur. 134; In re Hannam, ii Davis v. Davis, 2 Addams Ecc. 14 Jur. 558; Clarke v. Scrlpps, 16 223. See, also, Patten v. Poulton, Jur. 783; s. c, 2 Rob. Ecc. 563. 1 Sw. & Tr. 55; s. c, 27 L. J. Prob. See, ante, § 518. 41; s. c, 4 Jur. N. S. 341; Haines The issue of revocation involved v. Haines, 2 Vern. 441; Steele v. two distinct facts: The physical Price, 5 B. Mon. (44 Ky.) 58. act of destruction, and the intent 12 Burtenshaw v. Gilbert, Cowp. with which the act was done. "All 52. the destroying in the world with- 13 Frear v. Williams, 7 Baxt (66 out intention will not revoke a Term.) 550. will, nor all the intention in the REVOCATION AND ALTEBATION. 743 unfinished the work of destruction which he had begun, the will remains unrevoked.^* A clause of revocation must indicate an intent to revoke in the present.^^ An indorsement on a will indicating an intention to alter or modify it at a future time will not constitute a revocation.^® But where a testator wrote upon a will, "It is my intention at some future time to alter the tenor of the above will, or rather, to make another will; therefore, be it known, if I should die be- fore another wiU is made I desire that the foregoing be considered as revoked and of no effect," it was con- sidered a present revocation." § 548. Evidence of Intention to Revoke. Since it is the intention of the testator that he must decide whether an obliteration,^^ or the making of a sub- sequent will,^^ or any other revocatory act, shall be effec- tive, questions often arise involving the admissibility and weight of evidence of intention, and the decisions are by no means uniform. Thus, statements made by the tes- tator some time after the supposed revocation are not ad- missible;^" and declarations of an intention to revoke a will, not made at the time of an ineffectual attempt at a 14 Elms V. Elms, 1 Sw. & Tr, le Ray v. Walton, 2 A. K. Marsh 155; s. c, 27 L. J. Prob. 98; s. c, (9 Ky.) 71. 4 Jur. N. S. 341; Doe v. Perkes, 3 1 7 Brown v. Thomdike, 15 Pick. Bam. & Aid. 489. See, also, In (Mass.) 388. re Colberg, 1 Notes of Cas. 90; is Jackson v. Holloway, 7 Johns, s. c, 2 Curt. 832; In re Cockayne, (N. Y.) 394; Means v. Moore, 3 1 Dean. 177; s. c, 2 Jur. N. S. 454. McCord L. (S. C.) 282. 15 Cleoburey v. Beckett, 14 Beav. is Taylor v. Taylor, 2 Nott & 583, 588; Burton v. Gowell, Cro. McC. (S. C.) 482. Eliz. 306; Thomas v. Evans, 2 East 20 Caeman v. Van Harke, 33 Kan. 488; Griffin v. Griffin, 4 Ves. Jun. 333, 6 Fao. 620. 197, n. 744 COMMENTARIES ON THE LAW OF WILLS. written revocation, are inadmissible.^* But declarations of a testator at the time of revoking a will have generally been admitted, when testified to by disinterested par- ties.^^ And admissions of the testator are universally admissible when part of the res gestce.^^ 21 Ladd's Will, 60 Wis. 187, 50 Am. Rep. 355, 18 N. W. 734. The fact that the testator de- clared an Intention to alter his will, and that he was persuaded not to do so, is not admissible to show that the will was fradulently prevented from being revoked. — Smith V. Fenner, 1 Gall. (U. S. C. C.) 170, Fed. Cas. No. 13046. Verbal statements by the tes- tator to the effect that he has not made a will do not tend to prove revocation. — Toebbe v. Williams, 80 Ky. 661. Evidence of the testator's In- tention orally announced to adopt the prior of two wills can not be received. — Daniel v. Nockolds, 3 Hagg. Ecc. 777. Declarations of an intent to die intestate, coupled with evidence that a subsequent will had been made by the tes- tator and stolen from him, will not be suflJcient to revoke the first will in the absence of proof of the contents of the later. — Hylton v. Hylto*, 1 Grat. (Va.) 161. 22 Boyle V. Boyle, 158 111. 228, 42 N. E. 140; Behrens v. Behrens, 47 Ohio St. 323, 21 Am. St. Rep. 820, 25 N. E. 209; In re Steinke's Will, 95 Wis. 121, 70 N. W. 61. The statements of the testator, Identifying the earlier will as the one he wanted and which he had requested his counsel to procure, were competent evidence for the consideration of the jury as in- dicative of his intention or plan to destroy the wills which could not be found, and to revive, or to select, the will propounded as his final will. — Davis v. Sigourney, 8 Mete. (Mass.) 487; Pickens v, Davis, 134 Mass. 252, 45 Am. Rep. 322; Williams v. Williams, 142 Mass. 515, 8 N. E. 424; Lane v. Moore, 151 Mass. 87, 21 Am. St Rep. 430, 23 N. E. 828; Aldrich v. Aldrich, 215 Mass. 164, 102 N. B. 487. See, ante, §§ 52-54, as to evi- dence of parol declarations and of extrinsic circumstances. See, ante, §§ 110-112, as to evi- dence of parol declarations and of extrinsic circumstances in rela- tion to conditional or contingent wills. See, ante, §§ 122-126, as to evi- dence of facts and declarations on the question of intent to revoke a duplicate will. 23Barksdale v. Hopkins, 23 Ga. 332; Blackett v. Ziegler, 153 Iowa 344, Ann. Cas. 1913E, 115, 37 L. R. A. (N. S.) 291, 133 N. W. 901; Hayes v. West, 37 Ind. 21; Caeman v. Van Harke, 33 Kan. REVOCATION AND ALTERATION. 745 In England it has been held that subsequent declara- tions of the testator are admissible to rebut the presump- tion of revocation,^* but are not admissible to prove the act of revocation.^^ As evidence of the animus with which an act was done, less weight is to be attached to subsequent than to contemporaneous declarations of the testator.2® Evidence is not admissible to show that the testator made certain erasures with animo testandi, when those erasures do not materially affect the meaning of the will.27 Parol evidence is inadmissible to prove instructions given by a testator at the time of executing his will, that upon certain contingencies it should become inopera- tive ;2^ and in general, parol evidence of the revoca- tion of a will is inadmissible.^^ Yet it has been said that revocation is a question of intention, and that any fact tending to show the intention is admissible.^" Accord- ingly, we find that where a testator having in his hands 333, 6 Pac. 620; Townshend 24 Keen v. Keen, L. R. 4 P. & D. V. Howard, 86 Me. 285, 20 Atl. 105. 1077; Colvin y. Warford, 20 Md. 25 Staines v. Stewart, 2 Sw. & 357; Pickens v. Davis, 134 Mass. Tr. 320; s. c, 31 L. J. Prob. 10, 8 252, 45 Am. Rep. 322; Williams v. Williams, 142 Mass. 515, 8 N. E. 424; Board of Comrs. of Rice Jur. N. S. 440. 26 Pemberton v. Pemberton, 13 Ves. Jun. 290, 310; Johnson v. Ly- ford, L. R. 1 P. & D. 546; In re County V. Scott, 88 Minn. 386, 93 ^^gton, L. R. 1 P. & D. 633. N. W. 109; Lane v. Hill, 68 N. H. 27 Clark v. Smith, 34 Barb. 275, 73 Am. St. Rep. 591, 44 Atl. (n. y.) 140. 393; Waterman v. Whitney, 11 28 Sewell v. SlinglufC, 57 Md. 537. N. Y. 157, 62 Am. Dec. 71; McClure 29 Jackson v. KnifEen, 2 Johns. V. McClure, 86 Tenn. 174, 6 S. W. (N. Y.) 31, 3 Am. Dec. 390; Kent 44; In re Gould's Will, 72 Vt. 316, v. Mahaffey, 10 Ohio St. 204. 47 Atl. 1082; Carpenter v. Miller's so Boudinot v. Bradford, 2 Yeates Exrs., 3 W. Va. 174, 100 Am. Dec. (Pa.) 170; Eyster v. Young, 3 744. Yeates (Pa.) 511. 746 COMMENTABIES ON THE LAW OP WILLS. two wills, destroyed the one he intended to keep, evidence of his intention was admitted.^^ And where a mutilated will was found in an unusual place, parol evidence of acts and declarations of the testator were admitted to show whether the mutilation was done by him with an intent to revoke.^2 So, too, the fact that the former will be- queathed to the widow a larger interest than the latter, is admissible in proceedings to show that the second will was mutilated by her and not by the testator.^^ § 549. The Same Subject. To establish the revocation of a will, evidence of the contents of a subsequent will is inadmissible unless the destruction of the latter can be proven, or its absence explained according to the general rule that secondary evidence is inadmissible when primary can be obtained.^* It is sometimes difficult to determine what was the tes- tator's intention, even with the subsequent writings be- fore the court. Where a testator by two codicils altered his will in certain particulars, but in "all other respects" expressly confirmed it, and in a third codicil concluded, "In all other respects I confirm my said will, except as altered by a certain codicil," describing the first codicil, the words of confirmation in the first and third codicils were considered as meaning that the testator did not in- tend to alter his general testamentary dispositions further than in the particulars mentioned in those codicils; and the devise in the second codicil being clear, it was held 81 Burns v. Bums, 4 Serg. & R. 33 Barker v. Bell, 49 Ala. 284. (Pa.) 295. 34 Minor v. Guthrie, 9 Ky. Law 32 Patterson v. Hlckey, 32 Ga. Rep. 113, 4 S. W. 179. 156; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec 460. KEVOCATION AND ALTERATION. 747 that no intention to revoke it had been shown with suffi- cient clearness to enable the court to reject it.^^ §550. Presumption as to lutentioii to Revoke: Burden of Proof. In the absence of evidence, mutilations, obliterations, and interlineations are presumed to have been made after the execution of the will,^" and after the date of a codicil which does not refer to them.^^ The mere fact that they bear a prior date seems not to rebut this presumption.^® The failure of a testator who is informed of the loss or destruction of his will, to publish another, raises a pre- sumption of intention to revoke it ; but this presumption may be rebutted by other evidence, such as the declara- tions of the testator himself.^^ Proof of the manner in which a will was destroyed is not required when it was last in the possession of the testator and can not be found,*" the general rule being that if the will can not be found, but may be traced to the testator's hands, it is to be presumed, until the contrary be shown, that it was destroyed by him with the intention to revoke it.*^ The 35 Follett V. Pettman, 52 L. J. N. S. 808; Williams v. Ashton, Ch. 521, 23 Ch. Div. 337. 1 Johns. & H. 115. 36 Christmas v. Whinyates, 3 Sw. 37 Lushington v. Onslow, 6 Notes & Tr. 81, 32 L. J. Prob. 73, 9 Jur. of Cas. 183; Rowley v. Merlin, 6 N. S. 283; Cooper v. Bockett, 4 Jur. N. S. Il65. See, also. In re Moore P. C. C. 419; Simmons v. Mills, 11 Jur. 1070. Rudall, 1 Sim. N. S. 115, 15 Jur. 38 In re Adamson, L. R. 3 P. & D. 162; Burgoyne v. Showier, 1 Rob. 253. Ecc. 5; In re Thompson, 3 Notes 39 Steele v. Price, 5 B. Mon. (44 of Cas. 441; Gann v. Gregory, 3 Ky.) 58. De Gex M. & G. 777; Doe d. Shall- *o Bulkley v. Redmond, 2 Bradf. cross V. Palmer, 16 Q. B. 747; In (N. Y.) 281. re James, 1 Sw. & Tr. 238 ; In re *i Pinch v. Finch, L. R. 1 P. & D. White, 30 L. J. Prob. 55, 6 Jur. 371; In re Shaw, 1 Sw. & Tr. 62; 748 COMMENTARIES ON THE LAW OF ■WIU^S. same rule prevails where a will in the testator's custody- is found in a mutilated condition.*^ This presumption outweighs a probability of its fraudulent destruction, un- supported by evidence showing more than the existence of an opportunity;*^ although, of course, sufficient evi- dence will overthrow the presumption entirely,** a,nd for this purpose declarations of the deceased are admissible to rebut the presumption of revocation arising from loss or destruction of a will prior to his death.*'^ But this pre- sumption of revocation, from the fact that the will was found mutilated and in the possession of the testator, is not to be rebutted by proof of a conversation held shortly before death with the executor as to fulfilling a bequest made in the will.*® Brown v. Brown, 8 El. & B. 876; Welch V. Phillips, 1 Moore P. C. C. 299; Tagart v. Squire, 1 Curt 289; Lillie V. Lillie, 3 Hagg. Ecc. 184; Wargent v. Hollings, 4 Hagg. Ecc. 245; McBeth. v. McBeth, 11 Ala. 596; Weeks v. McBeth, 14 Ala. 474; Bonds V. Gray, Ga. Dec. 136, pt. 2; Lively v. Harwell, 29 Ga. 509; Minor v. Guthrie, 9 Ky. Law 113, 4 S. W. 179; Kerrigan v. Hart, 40 Hun (N. Y.) 389; Hamersley V. Lockman, 2 Demarest (N. Y.) 524; Holland v. Ferris, 2 Bradf. (N. Y.) 334; Foster's Appeal, 87 Pa. St. 67, 30 Am. Rep. 340; Baus- kett V. Keitt, 22 S. C. 187; Brown V. Brown, 10 Yerg. (Tenn.) 84; Appling V. Eades' Admr., 1 Grat. (Va.) 286; Minkler v. Minkler's Estate, 14 Vt. 125. 42 In re Lewis, 1 Sw. & Tr. 31; s. c, 27 L. J. Prob. 31; Williams V. Jones, 7 Notes of Gas. 106; Hare V. Nasmyth, 3 Hagg. Ecc. 192; Lambell v. Lambell, 3 Hagg. 568; Smock V. Smock, 11 N. J. Eq. 156. 43Bauskett v. Keitt, 22 S. C. 187. See, also, Saunders v. Saun- ders, 6 Notes of Gas. 518; Battyll V. Lyles, 4 Jur. N. S. 718; In re Gardner, 1 Sw. & Tr. 109; s. c, 2 L. J. Proh. 55; In re Ripley, 1 Sw. & Tr. 68; s. c, 4 Jur. N. S. 342; In re Pechell, 6 Jur. N. S. 406; In re Simpson, 5 Jur. N. S. 1366; Eckersley v. Piatt, L. R. 1 P. & D. 281. 44 Foster's Appeal, 87 Pa. St. 67, 30 Am. Rep. 340. 46 Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619. His declarations are admissible to rebut the presumption, but not to prove the fact of revocation. — See, ante, § . 46 In re White's Will, 25 N. J. Eq. 501. REVOCATION AND ALTERATION. 749 Where the will is in existence and it is necessary to prove intention to revoke, the burden is on the party attempting revocation.*''^ One contesting the probate of a will on the ground that it has been revoked has the bur- den of proving revocation, and, where the jury is left in doubt on the evidence, he has not sustained the bur- den.*^ §551. The Same Subject: Lost Wills. If the will be shown not to have been in the hands of the testator, the presumption that it was destroyed by him or by his direction does not arise, and the burden of proof is upon the party asserting the revocation,*^ as where it is found mutilated in the custody of one inter- ested in defeating it.^° "When the intention to revoke has been disproved in regard to a lost will, probate will be granted, and for this purpose its contents may be proven by secondary evidence, draft, copy, or parol testimony.^^ It has even been held that the contents might be estab- lished by one interested witness, and that probate might 47 Wellbom's Will, 165 N. C. 636, tion of revoking them. — ^Aldricli v. 81 S. E. 1023. Aldrich, 215 Mass. 164, 102 N. B. 48Aldricli V. Aldrich, 215 Mass., 487. 164, 102 N. E. 487. bo Bennett v. Sherrod, 25 N. C. 49 Colvin V. Fraser, 2 Hagg. Bcc. 303, 40 Am. Dec. 410. 266, 327; Hildreth v. Schillenger, 5i Sugden v. St. Leonards, L. R. 10 N. J. Eq. 196; Wynn v. Heven- 1 Pro. Div. 154; James v. Shrimp- ingham, 1 Coll. C. C. 630, 638, 639. ton, L. R. 1 Pro. Div. 431; Wood Where subsequent wills, alleged